Town and Railway back in federal court next week

Trucks line up to get salt recently at Vermont Railways Intermodal facility. Photo by Boston Neary

After a yearlong legal battle, the parties will be headed back into federal court later this month in what could be a decisive step in the VT Railway, Inc. vs. Town of Shelburne case. A hearing will be held with Judge William K. Sessions III presiding on March 27 at 9am, and it is expected to continue the following day. A new layer of litigation was introduced Monday when the Nature Conservancy filed a motion to intervene in the case.

The nonprofit organization owns a 240-acre parcel adjoining land that the railway uses for its intermodal facility. The motion, filed by The Nature Conservancy’s attorney David Grayck, said,  “The Conservancy and the Town do not have the same ultimate objectives, both in terms of the laws at issue, and the relief which is sought… [The] Town seeks to vindicate the protection of the public health, safety and welfare through its police powers. In contrast, The Conservancy seeks to protect its unique property interests in the LaPlatte Natural Area.”

Selectboard Chair Gary von Stange said he anticipates that both trial days, and potentially more time, will be needed to resolve the matter. The potential intervention by The Nature Conservancy could increase the time.

“If the project were immune in all respects from regulations because of preemption, then the court could have issued a decision in favor of the railway long ago,” von Stange said. However, he noted that the court said in an order issued on July 29 that not all state and local regulations are preempted by the Interstate Commerce Commission Termination Act. Local bodies, the order said, still retain certain police powers that protect public health and safety.

“The Town’s position throughout this litigation (is) that the role and interests of Barrett Trucking, an entity with no independent standing to invoke federal preemption, is critical,” von Stange said.

The issue of Barrett Trucking’s role in the project was addressed by Sessions in an order issued at the Oct. 18 hearing. In it, he stated that the court “was primarily concerned with whether Barrett Trucking and the Railway committed such a misrepresentation by mischaracterizing Barrett Trucking’s role in the venture.”

Under Rule 60, relief from a prior court ruling is authorized where there is fraud, misrepresentation, or misconduct. “The Town seeks relief based on newly-discovered evidence that contradicts prior testimony,” von Stange said, pointing to a Jan.12 order in which the court noted that its “key concern was ‘whether or not there was a representation by Mr. Barrett that he had an interest in the property which is other than what he disclosed in Court.” This “key concern,” von Stange said, will be addressed at the hearing that starts on March 27.

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