Federal Appeals Court rejects suit against CSX over Lumberton flooding

The 4th US Circuit Court of Appeals has rejected the final portion of a lawsuit Lumberton residents filed against CSX Transportation over flood damage from Hurricanes Matthew and Florence.

It’s the second time federal appellate judges have addressed the dispute.

“In the first appeal, we affirmed the dismissal of most of the plaintiffs’ claims but concluded that one breach-of-contract claim should proceed,” Judge Pamela Harris wrote Tuesday for a unanimous three-judge panel.

A trial judge ruled in CSX’s favor after the 4th Circuit’s initial ruling. “Because we agree that the plaintiffs cannot show that CSX breached the relevant contract, we affirm the judgment of the district court on that ground alone,” Harris wrote.

“The Lumber River flows through Lumberton from northwest to southeast,” Harris explained. “Neighborhoods in the south and west of the City are low-lying areas prone to flooding. To protect those neighborhoods, a group of local, state, and federal authorities came together in the 1960s and 70s to design and construct a levee system.”

“As designed, however, the levee system has a fundamental flaw: Since the 1850s, CSX Transportation and its predecessors have operated a rail line that parallels the Lumber River and creates an unobstructed ‘gap’ in the levee through which trains – and waters – may run.”

A tri-party agreement among Lumberton, CSX’s predecessor, and the Robeson County Drainage District No. 1 was designed to address the problem, Harris wrote. The agreement permits an earthen dike on CSX’s property that can be closed if Lumberton faces an imminent flooding threat.

“When Hurricane Matthew threatened Lumberton in 2016, the City informed CSX of its desire to construct an ‘emergency sandbag dam’ to close the gap in the levee,” Harris wrote. “CSX refused to grant the City access to its right-of-way. ‘Predictably, the Lumber River coursed through the gap’ and caused ‘catastrophic’ damage to the City and its inhabitants.”

Hurricane Florence in 2018 threatened further flooding. “The City again sought to close the gap in its levee system,” Harris wrote. “CSX initially refused the request again, but eventually relented after the Governor issued an emergency order. By that time, though, ‘there was only time to hastily construct a makeshift berm, which ultimately failed,’ resulting in a second round of flooding.”

Residents and business in south and west Lumberton sued CSX in federal court. The suit alleged that the company violated the TPA.

A trial judge initially dismissed all claims, but the 4th Circuit ruled in 2020 that a breach-of-contract claim could proceed. “Although it was ‘perhaps a close call,’ we explained that the plaintiffs’ allegations plausibly supported their claim to third-party-beneficiary status ‘at this early stage of the litigation.’”

When the case returned to a trial court, US District Judge Terrence Boyle ruled again in favor of CSX and against the plaintiffs. Boyle cited three different reasons for the ruling.

The 4th Circuit addressed just one, “the merits of the plaintiffs’ contract claim,” Harris explained.

“The TPA, recall, authorized the construction of an ‘earthen dike’ on CSX’s property and allowed the City to close ‘said dike’ if and only if there was an imminent risk of flooding,” Harris wrote. “Although ‘said dike’ was never constructed, the plaintiffs argued that the TPA also entitled the City to close the gap across CSX’s rail line through substitute means, like sandbags, and that CSX breached the parties’ contract when it refused to allow the City to ‘construct an emergency sandbag dam’ as Hurricane Matthew approached.”

“The district court rejected that argument,” Harris continued.

“CSX did not agree to a sandbag barrier, and the TPA does not license the City to fill the gap on CSX property in any manner it chooses,” the appellate opinion explained. “Instead, the TPA gives the City the (limited) right to close ‘said dike’ – and ‘said dike,’ as the plaintiffs admit, has never been built. The district court viewed construction of the dike as a ‘condition precedent,’ without which CSX was not bound by the TPA.”

“[W]e do not see how CSX can be held to have breached a duty to close ‘said dike’ when ‘said dike’ did not exist,” Harris wrote.

“[A]s the district court held, … we are bound to ‘enforce the contract as written,’ without imposing ‘liabilities on the parties not bargained for and found therein,’” she added.

Judges James Wynn and Marvin Quattlebaum joined Harris’ opinion.

The post Federal Appeals Court rejects suit against CSX over Lumberton flooding first appeared on Carolina Journal.

The post Federal Appeals Court rejects suit against CSX over Lumberton flooding appeared first on First In Freedom Daily.