Railroad company files condemnation suit

The second-largest railroad company in the United States, Norfolk Southern Railway Co., has filed another lawsuit to gain control of valuable land on the Wilmington Riverfront that the railroad alleges was illegally seized by the state’s inverse condemnation attorney.

The company requesting the that the state’s Superior Court set aside a 2006 condemnation judgment granted to the Delaware Department of Transportation that resulted in the state getting title to nearly two acres of ground. Alleging it was unaware about the eminent domain action involving its South Madison Street property, Norfolk Southern wants the case reopened in order to get access to an area that contains railroad tracks and billboards facing I-95 - which could bring in advertising revenue for the transportation giant.

Company representatives said a title search should have located the deed that gave the mailing address as Norfolk Southern Railway Co. in Roanoke, Va. The railroad alleges it didn’t receive a copy of the condemnation proceeding until May 4, the first documentation it says it received. 

The condemnation judgment is void because DelDOT lawyers for the eminent domain action in 2006 made “the grossly negligent misrepresentation” that a diligent search for the property owner had been done and “no known owners” found, according to company representatives. 

Norfolk Southern has insisted the judgment by Superior Court is preempted by federal law and therefore the state court lacked jurisdiction to condemn the land. The company is looking for every loophole and opportunity in state property laws that will help it get it’s hands on the terrain.

So far, the department has not commented on the matter other than to say it would be filing DelDOT’s response to the motion before a scheduled Sept. 4 hearing, according to an inverse condemnation lawyer for DelDOT. 

This is the second legal action Norfolk Southern has filed this summer.

The railroad brought suit in federal court in July after receiving a letter from DelDOT that the department would fence in a portion of the land to begin construction “no later than August 1” on parking spaces for the 14-screen cinema now under construction on an adjacent lot.

That case, which was brought against the development group behind the cinema project, including the Riverfront Development Corp. and Buccini/Pollin Group Inc., is now working through the court. DelDOT is not a party to that lawsuit.

Judge finds Tennessee energy giant guilty of negligence in coal ash case

The Tennessee Valley Authority (TVA) was negligent in not preventing a coal ash dam failure at its Kingston power plant in December 2008, that resulted in millions of gallons of toxic ash-laden water and mine tailing to flood the area’s rivers and valleys.

In a 130-page ruling, Judge Thomas Varlan at the U.S. District Court found TVA to be ill prepared for its energy operations reviewing the combined cases filed by local residents and their inverse condemnation lawyer representatives. At the moment, more than 60 cases and 800 plaintiffs are involved in the TVA coal litigation case.

In effort to resolve a public relations crisis, TVA has purchased more than 180 properties and settled over 200 other claims. TVA also provided $43m to the Roane County Economic Development Foundation for use by communities in the affected area. The ash recovery project is expected to continue through 2015. 

“The U.S. District Court today ruled that TVA can be held liable for conduct by TVA that contributed to cause the spill,” TVA said in a press release. “The litigation now will proceed to a second phase where the plaintiffs may attempt to prove they were each directly impacted by the spill on an individual basis. TVA remains committed to the full restoration of the community directly impacted by the spill, while being mindful of our responsibility to manage ratepayer dollars.”

TVA also confirmed its commitment has not wavered and pledges to clean up the spill, protect the public health and safety, restore the area, and, where justified, fairly compensate people who were directly affected.

Plaintiffs claim that the failure of the coal ash dike at Kingston and the resulting spill was caused by TVA’s negligent conduct with respect to the design, construction, implementation, operation, maintenance, and inspection of the coal ash storage and disposal facilities, the judge wrote. 

Initial complaints against TVA alleged causes of action for personal injury and property damage under tort law theories of negligence, negligence per se, gross negligence, trespass, nuisance, strict liability and inverse condemnation attorney.

Mary Anne Hitt, Director of the Sierra Club's Beyond Coal Campaign, said in statement that the decision is "a victory for every family that was impacted by this tragedy. Local residents have lost their property and been exposed to arsenic, lead, mercury and selenium. Forcing TVA to face up to its responsibility is just the first step in ensuring that these folks can rebuild their lives.”