Skunk Train sues city of Fort Bragg over stormwater runoff into its property
FORT BRAGG., CA., 9/20/24 – Skunk Train operator Mendocino Railway and its parent company, Sierra Northern Railway, filed suit in August against the City of Fort Bragg. The suit alleges that toxins in stormwater from the city are contaminating the railway’s property, which comprises the bulk of Fort Bragg’s oceanfront. The case was filed in federal court in San Francisco over outflow mostly into the eight-acre mill pond in the middle of the former Georgia-Pacific mill site. The railway completed the acquisition of the site in November 2021.
Neither the city nor the railroad would comment directly on the lawsuit. The railroad, however, provided the Voice with a report by the firm Kennedy Jenks, which studied the stormwater flow in 2017.
“Two such substances have been found in concentrations that exceed applicable water quality standards by one to two orders of magnitude: dioxins and furans,” the lawsuit alleges.
The first case management conference is set for Nov. 5 , to be heard by federal judge Jon Tigar. Attorneys David Diepenbrock and Roberto Cruz filed the case on behalf of the railroad.
In response to questions about the lawsuit, Mendocino Railway President Robert Pinoli provided a document from Kennedy Jenks created in 2017, prior to the railroad’s ownership of the property.
City’s suits against Mendocino Railway have succeeded
The Skunk Train has been losing in court to the City of Fort Bragg recently, including a rejection by an appeals court on Aug. 29. The rejection was sent out among published decisions by that federal court. The railroad also lost on two eminent domain cases, which are now on appeal.
Fort Bragg is also suing the Skunk in another active case that has yet to be decided, this one in the Mendocino County Superior Court. That case is currently in an arbitration process in the hopes it can be settled without trial. In that case, the city seeks to stop the Skunk from claiming to be a Class III “common carrier” railroad and a public utility with powers of eminent domain. A trial date has been set for April 8 in the Fort Bragg courthouse, with Judge Clay Brennan presiding.
That lawsuit argues that “The operations of the Mendocino Railway have been reduced over time and now consist of only the operation of out and back excursion trips starting in either Fort Bragg, California or Willits, California and therefore the Mendocino Railway is no longer entitled to status as a public utility, it is in fact an excursion-only railroad, and therefore is subject to the jurisdiction of the city of Fort Bragg and all ordinances, codes and regulations set forth in the city of Fort Bragg Municipal Code.”
The railroad has argued this point unsuccessfully in eminent domain cases filed over the past several years. It claims that it has been a commercial railroad for more than a century and thus has the right to do work related to the railroad without city and state input. The city counters that the Skunk is now an excursion business for tourists, not a railroad doing freight or passenger service beyond tourism. The Skunk wants to work on its lines and buildings under federal law and special rules for railroads, while the city wants the Skunk to be subject to its permits and regulations. The dioxin/furan lawsuit brought by the Skunk is not directly related to these other court cases, nor does it concern whether the Skunk is a “common carrier” railroad. This is a property dispute, with the railroad claiming causes of action against the city including trespassing, “taking” of private land by a government, and inverse condemnation, which occurs when actions by a governmental entity damage or decrease the value of private property.
Water from central Fort Bragg runs downhill to the ocean. In some places, stormwater from the city runs through the property owned by the railroad. Some of that water is retained in the mill pond and other smaller ponds. The ponds receive stormwater during rain events from two city catchments that drain into the mill pond from Maple and Alder creeks, both of which pass through the city in underground culverts.
To the people who hike and bike the Coastal Trail through the mill site, it may come as a surprise that there are “ponds” and “creeks.” Despite blue areas on official maps, there is rarely any visible water. The ponds are actually seasonal wetlands completely covered with cattails and other water plants. The two creeks that once flowed there are now underground culverts covered by concrete. Concrete covers a sizable percentage of the old mill site.
The lawsuit does not identify the source of the toxins, nor when the pollution began to flow onto the site. Dioxin and furan are similar toxins, usually byproducts of industrial processes, especially related to incineration and pulp paper manufacturing.
Why would dioxin be in stormwater?
Most high-profile dioxin cases have been on the East Coast and Midwest where heavy manufacturing occurred. The worst in history was when a contractor sprayed waste oil on the road in Times Beach, Missouri in the 1970s. The oil was from a facility where the defoliant Agent Orange was manufactured and when a flood came, the entire town was poisoned by dioxin levels more than 300 times the safe limit. The town eventually had to be evacuated and purchased by the federal government.
Dioxin, a carcinogen, is persistent in the body and can contaminate everything from ocean life to vegetables and then move up in the food chain. All humans are believed to have had exposure to dioxins since the Industrial Revolution, making everyone vulnerable to additional exposures. Dioxin exposure has been linked to several diseases, including Type 2 diabetes, ischemic heart disease, and an acne-like skin disease called chloracne. Dioxin is considered one of the “dirty dozen” worst pollutants, with furans usually lumped in with dioxins.
The newly filed lawsuit alleges levels one to two times what is considered safe in stormwater. While this is minuscule by comparison to the worst cases, any increase in dioxin exposure is considered serious. The mill pond contains cattails, which have been scientifically proven to be among the best plants on earth at removing heavy metals and arsenic, but there is no proof cattails can mitigate dioxin.
“As a result of the city’s acts and omissions, [the railroad] has faced and will face additional, currently incalculable costs for future investigation and contamination clean-up. These costs have been estimated to range from $8 million to $50 million dollars, depending on the manner and method of remediation, to be proven at trial,” the suit states.
Lab tests showed dioxin in ash piles on the mill site when the cleanup started. Tests showed that dioxin was found in soil under the mill ponds as deep as 14 feet. The California Department of Toxic Substances Control (DTSC) supervised cleanup of those areas, but critics say more work is needed on the mill site ponds.
Dioxin has also been a problem on properties in the vicinity of Fort Bragg, due to the burning of garbage during a two-year period on the mill site, just before it closed. For many years, the Georgia-Pacific mill site distributed likely clean “fly ash,” a carbon-rich soil amendment to appreciative local farmers and building sites. In the early days, nobody thought of fly ash as a pollutant; it just seemed like ashes from a fireplace.
The fly ash was generated by burning hog fuel (comprising wood, sawdust, bark) in the powerhouse boilers at the mill. It was used as a soil amendment from 1992 to 2002 under a permit from the North Coast Regional Water Quality Control Board and without a permit prior to 1992. Ash generated from the burning of trucked-in wood waste from city dumps, which occurred from 2001 to 2002, was the likely source of elevated concentrations of dioxins/furans in ash-amended soil at the site, DTSC documents show.
DTSC supervised cleanup on at least one local farm where the fly ash from 2002 was used and also tested other properties. State reports say those properties have been cleaned up of fly ash.
There is no evidence that dioxin from fly ash use could be the source of the alleged dioxin in stormwater, but no other dioxin issues have been publicly identified in Fort Bragg. The mill site itself was cleaned of toxins, though controversy continues about what still needs to be remediated.
The mill site has been the heart of Fort Bragg since the town was formed in the 19th century. When the mill closed in 2002, the more than 400 acre property was divided up into parts. Most notably, the California Coastal Conservancy and the City of Fort Bragg purchased and created the Coastal Trail. Most of the remaining property was purchased by the Skunk, including the last 200 acres through an eminent domain process that ended with a transfer agreement.
Learn more about the history of the mill site, its creeks and ponds and pollution issues, in this article from California Real Estate magazine.
Please find related coverage about this subject from The Mendocino Voice below.
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