By Linda Chiem
Law 360 (
original article link)
A federal judge in Washington state on Wednesday refused to exclude certain evidence from Sierra Club and other environmental groups in their suit alleging coal dust regularly flies off BNSF Railway Co. trains and into waterways, saying the railroad hasn’t suffered that much prejudice to merit such sanctions.
U.S. District Judge John C. Coughenour issued a brief one-page order rejecting BNSF’s request that the court exclude certain dustfall and video evidence that plaintiff groups Friends of the Columbia Gorge and Columbia Riverkeeper collected near Horsethief Lake, Wash. BNSF alleges that the evidence was mostly destroyed or tainted because the environmental groups intentionally skewed the conditions they used to collect the evidence.
“Given the minimal amount of prejudice suffered, sanctions are not appropriate,” the judge’s order said.
BNSF said the Sierra Club and the environmental groups set up a system of floats in the Columbia River at Horsethief Lake, alongside the BNSF rail line, to collect coal dust that they expected to be emitted from passing trains, then discarded whatever they collected in those floats and re-ran the experiment a second time explicitly to take advantage of the stronger-wind season, and then producing to BNSF only the results of the second study, according to court documents.
BNSF also accused the environmental groups of setting up a motion-activated video camera in the Columbia River to attempt to capture recordings of trains emitting coal dust -- then systematically deleting almost every video they captured of non-dusting coal trains and only keeping the ones that showed coal dust.
“Plaintiffs’ attempt to use this cherry-picked data against BNSF, after having discarded and deleted counterevidence that likely would have rebutted plaintiffs’ evidence and undermined plaintiffs’ theory of the case, is fundamentally unfair and should not be allowed to stand,” BNSF said in its Aug. 19 motion for sanctions.
The environmental groups denied that any evidence was destroyed, saying that one of the river float studies was not put into evidence because it was not conducted by scientists, only by volunteers.
BNSF told the court earlier this month that the environmental groups don’t have enough broad evidence to support their Clean Water Act claims in their suit alleging coal dust regularly flies off trains and into Washington waterways. Meanwhile, the groups also asked the court to find the railroad liable for CWA violations.
The Sierra Club, along with Columbia Riverkeeper, the Puget Soundkeeper Alliance, the Natural Resources Defense Council and Friends of the Columbia Gorge, sued BNSF and several coal mining companies in 2013, alleging dozens of waterways have been tainted by coal regularly flying off railroad cars. BNSF has urged the court to deny the groups’ summary judgment motion, claiming the groups need a solid foundation of evidence to support their more than 12 million CWA claims, but have failed to do so.
Charlie Tebbutt of the Law Offices of Charles M. Tebbutt PC, the lead attorney for the plaintiffs, told Law360 on Wednesday that he's pleased that the evidence will be allowed in.
"On the one hand, BNSF argues that we didn’t have specific evidence and when we did provide it, they tried to get it excluded," Tebbutt said. "They’re talking out of both sides of their caboose."
"BNSF’s motion for sanctions is another attempt to distract the court from the main issues that are undisputed in this case: BNSF loses large amounts of coal from every train that it uses to transport coal, and a large amount of that coal goes into waterways," Tebbutt added.
A BNSF spokeswoman said they are currently reviewing the latest order from Judge Coughenour.
BNSF is represented by Fred R. Wagner, Eric L. Klein, Richard S. Davis and W. Parker Moore, Timothy M. Sullivan and Megan L. Morgan of Beveridge & Diamond PC and by Denise L. Ashbaugh of Yarmuth Wilsdon PLLC.
Sierra Club, Puget Soundkeeper Alliance, RE Sources For Sustainable Communities, Columbia Riverkeeper, Friends of the Columbia Gorge Inc. and Spokane Riverkeeper are represented by Charlie Tebbutt, Daniel C. Snyder and Sarah Matsumoto of the Law Offices of Charles M. Tebbutt PC, Andrea K. Rodgers Harris of Western Environmental Law Center and Jessica L. Yarnall Loarie of the Sierra Club.
Natural Resources Defense Council is represented in-house by David Pettit and Morgan Wyenn.
Friends of the Columbia Gorge is additionally represented in-house by Nathan J. Baker.
The Association of American Railroads is represented in-house by Kathryn D. Kirmayer, Timothy J. Stafford and Evelyn R. Nackman, and by Jason T. Morgan of Stoel Rives LLP.
The case is Sierra Club Inc. et al. v. BNSF Railway Company et al., case number 2:13-cv-00967, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Adam Lidgett, Stan Parker and Keith Goldberg. Editing by Joe Phalon.
Updated: An earlier version of this article misidentified which plaintiff groups collected the evidence that BNSF wanted to have excluded. The error has been corrected.
