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Waubay Lake Farmers Association v. Bnsf Railway Co.

United States District Court, D. South Dakota

August 28, 2014

WAUBAY LAKE FARMERS ASSOCIATION, IVAN ZOCHERT, NElL ZOCHERT, TED WASILK, ALAN WILKA, MIKE KOSLOWSKI, JIM ZENK; and DENNIS ZENK, as representative of the class herein defined, Plaintiffs,
v.
BNSF RAILWAY COMPANY, Defendant.

OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, District Judge.

I. INTRODUCTION

Waubay Lake Farmers Association, an unincorporated association comprised of farmers in Day County, South Dakota, and class representatives Ivan Zochert, Neil Zochert, Ted Wasilk, Alan Wilka, Mike Koslowski, Jim Zenk, and Dennis Zenk (collectively "Plaintiffs"), sued Defendant BNSF Railway Company (BNSF) asserting that an undersized culvert beneath the BNSF railroad bed has caused flooding of their properties. Doc. 1; Doc. 28; Doc. 78. Plaintiffs filed a Motion for Class Certification, Doc. 58. BNSF has filed a Motion for Summary Judgment, Doc. 62. This Court grants BNSF's Motion for Summary Judgment for the reasons explained below and therefore denies Plaintiffs' Motion for Class Certification as moot.

II. FACTS

With its Motion for Summary Judgment, BNSF filed a Statement of Undisputed Material Facts, Doc. 64, in compliance with Local Rule 56.1 (A) of the Civil Local Rules of Practice for the United States District Court for the District of South Dakota. Local Rule 56.1 requires Plaintiffs to file a response to BNSF's Statement of Undisputed Material Facts by responding to "each numbered paragraph in the moving party's statement of material facts with a separately numbered response and appropriate citations to the record" and to "identify any material facts as to which it is contended that there exists a genuine material issue to be tried." D.S.D. Civ. LR 56.1 (B). Instead of doing so, Plaintiffs stated that they "accept the Defendant's Statement of facts for the purpose of this motion." Doc. 69 at 1. Nevertheless, to ensure that the facts are viewed in the light most favorable to Plaintiffs as the non-moving party, this Court draws the facts not only from BNSF's Statement of Undisputed Material Facts, but also from Plaintiffs' Complaint and briefing where appropriate.

This lawsuit involves railroad tracks, a track bed, and culverts running through that track bed, all of which the patties believe to have been constructed over one hundred years ago. Doc. 64 at ¶¶ 1-2. In the early 1980s, the State of South Dakota purchased the tracks at issue from the failing Milwaukee Railroad and, around 2005, BNSF purchased the title to the right-of-way from the State of South Dakota. Doc. 64 at ¶ 2.

The tracks at issue run east and west through Day County near the town of Waubay, South Dakota. Doc. 64 at ¶ 3. A series of lakes in Day County and neighboring Roberts County collectively form the Waubay Lake Watershed (the Watershed). Doc. 64 at ¶ 3. The Watershed is a closed basin-that is, surface ground water collects in the lakes and does not have a natural outlet to a river, sea, or ocean. Doc. 64 at ¶ 4. Water in the Watershed tends to funnel southward through Rush Lake into and through Little Rush Lake and finally through a channel towards the basin's southern collection point at Bitter Lake. Doc. 64 at ¶ 5. BNSF's tracks cross the southern portion of Little Rush Lake near where Little Rush Lake channels water to Bitter Lake. Doc. 64 at ¶ 5-6. The particular stretch of tracks at issue runs for about a mile. Doc. 64 at ¶ 9. To accommodate water flowing from Little Rush Lake through the channel to Bitter Lake, BNSF's trackbed in the mile at issue has five culverts. Doc. 64 at ¶¶ 8-9. Plaintiffs complain about the size of one culvert, number 647.80 ("Culvert 647.80"), which is a 42-inch diameter culvert with a total opening area of 9.6 square feet. Doc. 64 at ¶ 10; Doc. 65-5 at 2. Culvert 647.80 is completely submerged under water or beneath ice throughout the year.

Running just to the south of the tracks at issue is a township road maintained by Day County. Doc. 64 at ¶¶ 11, 39. This township road has two 24-inch diameter culverts with a total opening area of 6.3 square feet near Culvert 647.80, but it has no other drainage structures which correspond to or parallel BNSF's four other culverts. Doc. 64 at ¶ 11; Doc. 65-5 at 2. The culverts[1] beneath the township road have a combined capacity less than Culvert 647.80 and thus constitute the drainage structures that control the volume of water flow from Little Rush Lake into Bitter Lake. Doc. 64 at ¶ 39; Doc. 65-5 at 3.

Historically, water levels in the Watershed have fluctuated. Doc. 64 at ¶¶ 26-29. During some decades, the water levels within the Watershed were quite low. Doc. 64 at ¶¶ 26-29. Beginning twenty to twenty-five years ago, increased precipitation and a decreased evaporation rate caused water levels to increase in all lakes of the Watershed. Doc. 64 at ¶¶ 28, 40-41. For instance, the water level on Waubay Lake rose by over 20 inches between 1990 and 1999. Doc. 64 at ¶ 29. Because the Watershed has abundant low-lying land, the surface area covered by the higher water is dramatic. Doc. 64 at ¶ 29.

Plaintiffs first encountered flooding of parts of their property in the mid 1990s. Doc. 64 at ¶ 30. Five of the seven named Plaintiffs in this case were among plaintiffs to sue a landowner whose farm crossing had been a longstanding blockage of the channel between Little Rush Lake and Bitter Lake. Doc. 64 at ¶¶ 31-35. That litigation culminated with a settlement under which the landowner removed the farm crossings, but did not pay damages. Doc. 64 at ¶ 37. Although the removal of those obstacles restored the direct channel between Little Rush Lake and Bitter Lake, the lake levels within the Watershed continued to climb. Doc. 64 at ¶¶ 38-39.

Plaintiffs assert claims of negligence, trespass, and nuisance against BNSF. Doc. 78 at ¶¶ 19-32. Plaintiffs' negligence claim contends that BNSF has two different duties, both of which allegedly require BNSF to reconstruct its culvert to accommodate the increased water now present in the Watershed. Doc. 78 at ¶¶ 19-20. Plaintiffs' negligence claim relies on 49 C.F.R. § 213.33, [2] South Dakota Codified Law (SDCL) section 49-16A-98, [3] and South Dakota common law. Doc. 78 at ¶ 19.

Plaintiffs allege that these statutes establish a duty to "maintain drainage and water carrying facilities under [a] roadbed to accommodate expected water flow for the area and to alter the facilities to match current conditions." Doc. 78 at ¶ 19. Plaintiffs rely on general state common law principles to allege that BNSF "has a duty to construct culverts in its roadbed of a sufficient capacity to carry off the surface waters flowing through the natural drainage channel which the roadbed intersects." Doc. 78 at ¶ 20.

Plaintiffs complain that BNSF has breached these duties because it "has failed to maintain or upgrade its culvert to a sufficient capacity to safely convey the natural and expected water flow through the drainage channel." Doc. 78 at ¶ 21. Plaintiffs allege that BNSF's failure to "maintain or upgrade its culverts" has caused water to back up onto Plaintiffs' properties thereby constituting a trespass and nuisance. Doc. 78 at ¶¶ 21, 27-32; Doc. 43 at 5. Plaintiffs admit that increased rain in northeastern South Dakota over the last few decades has caused lakes in the Watershed to swell. Doc. 59 at 1. Plaintiffs claim "that as [a] result of this temporary weather pattern[, ] the culverts through the Defendant's roadbed have not been properly maintained and do not permit natural drainage." Doc. 59 at 1. Plaintiffs further assert that, because BNSF had "knowledge of changing weather patterns[, it] must amend drainage structures to permit natural drainage." Doc. 59 at 12.

Plaintiffs do not dispute BNSF's claims that the increased water levels are a recent phenomenon or that the township road limits the flow of water from Little Rush Lake to Bitter Lake. Doc. 64 at ¶ 39, 42. BNSF hired an expert to assess the cause of the flooding, Plaintiffs did not hire an expert, and Plaintiffs do not contest what BNSF's expert determined. The only evidence that BNSF's culverts are the cause of the flooding north of the culvert is that lake levels are higher in Waubay Lake, Rush Lake, and Little Rush Lake to the north of Culvert 647.80 than in Bitter Lake to the south. Doc. 64 at ¶ 43; Doc. 65-5.

The relief Plaintiffs seek is somewhat unclear and has been evolving. Plaintiffs' Second Amended Complaint seeks $10 million in damages "incident to the relief requested" for their tort claims. Doc. 78 at ¶ 32. Plaintiffs do not specify what relief the damages are "incident to, " but Plaintiffs seek "such other relief the court may deem appropriate." Doc. 78 at ¶ 32. Although Plaintiffs' Second Amended Complaint does not explicitly request injunctive relief, Plaintiffs' briefing makes clear that they seek, or will seek, "equitable relief, " "removal of all blockage of the natural drainage by [BNSF], " and "specific relief requiring [BNSF] to construct its roadbed to conform to and allow for natural drainage." Doc. 59 at 2-3.

The named Plaintiffs wish to represent a class of residents and landowners in Day County within the Watershed, consisting of certain owners of farmland north of BNSF's trackbed. Doc. 64 at ¶ 12. Plaintiffs are unsure of the class's size, but presently believe it to number more than one hundred. Doc. 78 at 2. The named Plaintiffs' and putative class members' farms are located throughout Day County at varying distances from the culvert and roadbed. Doc. 64 at ¶¶ 15, 16. Some class members own land ...


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