1.25 miles of track at center of lawsuit
A jury trial is slated to begin this summer in case against largest freight railroad company in U.S.
Albert Engel Sr. can only stare at the Richmond Rail Connector in his backyard with dread, fearing that the overgrown vegetation, homeless encampments and pools of water that at times accumulate around the nearly decade-old berm foreshadow a train derailment along that track.
The three acres of land abutting the small industrial yard he owns on Giant Road are wedged between BNSF Railway tracks to the east and a Union Pacific Railroad line to the west.
While those railroad lines date back to at least 1915, Engel said his problems began nearly a century later — culminating in an arduous legal battle with the largest freight railroad in the United States.
As Engel's complaint has slogged through Contra Costa County's courts, a host of records his legal team gleaned from railroad staff, contractors and scientific experts has allegedly stoked concerns that the connector could potentially spell disaster for Richmond's shoreline and the entire East Bay.
According to public records, BNSF and its contractors appear to have overlooked staggering issues during construction and maintenance of the connector; Engel's attorneys allege that all pre-design and pre-construction surveys were conducted by an unlicensed surveyor, BNSF reneged on contractual responsibilities to preserve adequate, unobstructed drainage facilities, and construction crews took shortcuts to meet deadlines associated with the project's public grant funding — all of which pose the potential threat of a derailment.
In 2013, BNSF and government officials started work on the Richmond Rail Connector, a $22.6 million Caltrans-approved plan to design, rehabilitate and construct 1.25 miles of curved track to transport crude oil and other cargo across Engel's land, which aimed to sooth traffic congestion, reduce pollution exposure and increase efficiency to the Port of Oakland.
Engel sold the vacant lot as a permanent easement to the railroad behemoth for $1.6 million that summer, shortly after BNSF filed eminent domain proceed
ings to seize the land.
However, the 81-year-old eventually sued BNSF in August 2017. The amended complaint alleges breach of contract, negligence, nuisance, trespass and specific performance regarding the mostly publicly funded Richmond Rail Connector project, which was completed in 2015 and sits less than a mile inland from the city's marshy shoreline.
The suit also includes negligence claims against BNSF's third-party contractors — Asta Construction Company and the since-acquired engineering consulting firm J.L. Patterson & Associates.
This litigation over what Engel says are lax construction standards and poor track maintenance comes at a time when railroads across the U.S. are facing a swell of whistleblower complaints and lawsuits claiming they are at fault for private property damage, pollution, derailments and more.
BNSF is currently awaiting a verdict in Libby, Mont., where residents sued the Texas-based company, owned by Warren Buffett's Berkshire Hathaway conglomerate, for its role in exposing the community to asbestos.
Lawsuits specifically related to issues with water drainage around elevated BNSF berms have popped up in Missouri, Arkansas, Washington state and even further north in Contra Costa County.
Norfolk Southern agreed this month to pay $600 million to settle a string of lawsuits tied to the disastrous Feb. 2021 derailment in East Palestine, Ohio, which released 100,000 gallons of carcinogenic chemicals into the air and nearby waterways.
And in California, a track defect derailed a Union Pacific train headed to Portola in February, dumping 118 tons of coal in and around a Plumas County river, while less than three miles south of the connector in Richmond, a BNSF train derailed in December 2014. Rail officials kept it quiet until a resident reported it to local media.
That same year, Evan Reis, a structural engineer for Hinman Consulting Engineers,
released a report that estimated a 60% probability that a crude-laden train running from San Jose through Richmond to Martinez would derail within the next 30 years — odds that he said “would be of concern to me.”
Specifically, the dangers associated with train derailments range from health complications for residents and contamination of local watersheds to fiery explosions, especially when transporting Bakken crude oil, coal or other hazardous cargo.
Attorneys for BNSF, J.L. Patterson and Asta Construction all argue that Engel's lawsuit, filed under his company's name, North Richmond Properties, lacks any merit. Instead, they were quick to deny any wrongdoing, and each filed numerous petitions trying to exclude large elements of the plaintiff's legal strategy — attempting to call into question several facts, arguments and expert testimonies in Engel's complaint.
While this case started as a seemingly simple tort for damages related to the vegetation, encampments and flooding that began after the connector's construction, the discovery process brought even more serious
issues to light, according to Price Kent, the lead attorney in Engel's case.
“(One of our experts) has opined that the standing water that rests at the base of that berm — sometimes year round — poses a threat, and I believe his testimony to be true,” Kent said, referring to testimonies and state studies that show saturated soil has higher risks of liquefaction and even collapse. That's especially a concern for Engel's easement, which is located near the Hayward fault line, a former toxic chemical site, high-pressure gas lines and an urban creek that feeds into the San Pablo Bay.
All three defendants have rejected most, if not all, of the plaintiff's claims, instead asserting that the allegations within Engel's lawsuit are due to his own conduct. One such argument is that the lack of water drainage is actually tied to improvements that Engel constructed on his industrial yard — allegedly after plans to build the connector were finalized.
Additionally, legal counsel for BNSF and Asta Construction have pointed fingers at each other, arguing over who would contractually bear the brunt of the liability and fines associated
with the project, if any exist.
BNSF declined to comment on pending litigation, while attorneys for Asta Construction and J.L. Patterson did not respond to requests for comment.
A jury trial is finally slated to begin Aug. 26, following a slew of reassignments and continuances throughout the past seven years, including several months of complications during the pandemic.
Engel said he looks forward to wrapping up his years-long lawsuit against BNSF, J.L. Patterson and Asta Construction later this year. While he hopes the jury will rule in his favor and try to mitigate any potential hidden dangers that the connector poses in the East Bay, he said he will also find comfort in resolving the deluge of stress connected to drainage issues at 2801 Giant Road.
“I couldn't in good conscience try to put a building up there, knowing that there's flooding issues and possible stability problems — let alone the fact that there could be a potential of derailment at some point in time as well,” Engel said. “I'm just hoping that my kids are not going to have to fight these battles when I'm gone.”