On August 7, 2024, the Mendocino Railway filed suit in federal court against the City of Fort Bragg. The lawsuit lists six complaints for damages, stating that city stormwater runoff is currently depositing toxic chemical residue onto Mendocino Railway property.
Mendocino Railway, locally known as the Skunk Train, purchased the two large Georgia Pacific mill site parcels, the north portion in 2019 and the south portion in 2021. As part of the sale agreements, Mendocino Railway assumed Georgia Pacific’s responsibility to remove all toxins from the soil to meet environmental standards.
The Skunk Train’s lawsuit contends that two city culverts direct toxic storm water drainage onto their property just north of the City’s sewer treatment plant. This location of about eight acres is also referred to as Mill Pond 8, a part of the north mill site parcel.
According to the filed suit, this location “has received storm water on an on-going basis from two catchments located within and controlled by the City of Fort Bragg, which drain into Mill Pond through the culverted Maple and Alder Creeks.”
In the lawsuit, the drainage is described as “running unabated” and that it was “tested for the presence of hazardous substances. Two such substances have been found in concentrations that exceed applicable water quality standards by one or two orders of magnitude—dioxins and furans.”
Dioxin is a highly toxic group of chemicals described as “persistent environmental pollutants.” Dioxin is often one of the results of combustion processes such as commercial or municipal waste incineration.
Byproducts of this type of burning or other industrial processes can also create PCBs. Exposure to dioxin can cause cancers, reproductive issues, damage to the immune system, or hormone interference.
Furan is a colorless, flammable and volatile organic compound that is considered a contaminant and a health hazard. Furan is a chemical compound used in manufacturing herbicides, pharmaceuticals, and plastics.
The compound is considered to have the potential for reproductive damage and may damage the liver and kidneys as well. It is usually found in canned or jarred foods that have been thermal treated.
The lawsuit states that the “stormwater entering Mill Pond leaves through a dam spillway that discharges to the Pacific Ocean at Fort Bragg Landing. Thus, the City’s stormwater has a direct connection to navigable waters of the United States.”
The documents assert that “plaintiffs are entitled to relief and recovery.” The Mendocino Railway claim is asking that damages to the property, which has lost value and “cannot be enjoyed,” be held against the City. “Remediation and removal of dioxins and furans is estimated to cost anywhere from $8 million to $50 million.”
In a summary of Mendocino Railway’s official contacts with the City regarding the drainage, the suit states that “on January 22, 2024, the Train submitted a letter to the City a Claim For Money or Damages Against the City of Fort Bragg.”
On January 28, 2024, the City’s Claims Administrator, George Hills, sent the Skunk Train an acknowledgment of receipt, “but no action was taken.”
On April 24, 2024, the Skunk Train sent a letter to City Manager Isaac Whippy, but “the City did not respond.” On June 20, 2024, the Skunk Train filed an “Amended Claim for Money or Damages against the City of Fort Bragg.”
The documents contend that “to date, the City has not responded,” and that the City “continues to allow its stormwater to pollute the Property,” and that the railway was “forced to bring this complaint as a result.”
When contacted, the attorney representing the Skunk Train did not respond. However, Robert Pinoli, President and CEO of Mendocino Railway, provided a statement about the company’s lawsuit against the City.
Pinoli stated, “Stormwater is the runoff from paved or impervious surfaces, such as roads, parking lots, driveways, and rooftops, that drain directly into the City’s storm drain system. Stormwater is untreated and picks up pollutants along the way and carries these pollutants into our streams, ponds, wetlands, and the Pacific Ocean.”
Pinoli continued, “Storm water pollutants include litter, sediment, bacteria, and chemicals such as fertilizer and herbicides from lawns, as well as oil and gas from cars. The City of Fort Bragg has long conveyed this waste into Pond 8 on the mill site. This action seeks to hold them accountable as a responsible party for the continued discharges.”
He concluded, “It seems that the crumbling stormwater system that resulted in last week’s sinkhole is just the tip of the iceberg. While our property receives a significant amount of the City’s runoff, whose property gets the rest, or does it go into the ocean?”
City of Fort Bragg Director of Public Works John Smith declined to speak about the lawsuit itself, but he did respond to Robert Pinoli’s comment about a sinkhole. Smith said,” Public Works routinely replaces sections of stormwater pipes as needed.”
Smith continued, “Any small sinkholes that occur are first covered with a plate for public safety. The replacement of old infrastructure is an ongoing goal of the City as money becomes available.”
The Mendocino Railway suit was filed in the US District Court, the Northern District of California, located in San Francisco. The suit also requested a jury trial.
These guys. What a bunch. They are so freaking concerned about the future of Fort Bragg. This is the most cynical thing I’ve seen them do yet. Buy a contaminated site and then expect the city to clean it up? I’m so glad the town is not letting them just steamroll. Can’t wait to see what bullshit Chris and his buddy Jacob are going to spout in response. Give them their jury trial, but make sure it’s their peers here in Mendo county.
Barbara,
Mendocino Railway is not shirking its obligation to remediate the millisite. For five years we have been following the DTSC in remediation for the North Millisite. For the South Millsite, we are now waiting on the City to complete the EIR. We are doing the work.
It is important to point out, that in all locations but one, the dioxins on the millisite are going down. However, where the City is dumping its stormwater onto our property, the dioxins are going up!
It is wrong, and illegal, for the City to be adding to the contamination of a site that we are trying to clean up. They have no permission to do so, and despite two years of requests they won’t even speak with us about the issue.
One area of “remediation” that has been overlooked is pampas grass. Growing like crazy on the north millsite. From Elm to at least Pine. And has taken over Pond 9.
University of Georgia Extension says…
‘When used correctly in the landscape, pampas grass is an attractive and functional plant, particularly in groups of three to five plants in the background of a perennial border. It is a great plant for stabilizing erodible banks. It also can be used as a focal point in the landscape, providing color and textural contrast to nearby plants.’
Once established, it is low-maintenance, drought tolerant, deer tolerant and has few pest problems. It also tolerates salt spray, making it an ideal plant for coastal landscapes.’
Pampas Grass
Phytoremediation is the use of living plants to remove, degrade, or contain contaminants in soil, sludges, sediments, and groundwater.
Plant enzymes can secrete glutathione to conjugate organic contaminants and
• Releasing organic chemicals
Soil-root interaction or the presence of pollutants can cause plants to release organic chemicals that help stabilize toxic chemicals.
United States
Environmental Protection
Agency
Solid Waste and
Emergency Response
(5102G)
EPA 542-B-99-003
June 1999
http://www.epa.gov/tio
clu-in.org
Phytoremediation Resource
I see the pampas grass has been cut down. Thanks
Mendocino Railway’s latest lawsuit against the City of Fort Bragg is a replay of a 2013 lawsuit filed by Georgia Pacific against the City of Fort Bragg. Mendocino Railway’s goal now, like Georgia Pacific’s back then, is to offload financial responsibility for the toxic cleanup of the Fort Bragg mill site onto the taxpayers of the City of Fort Bragg. Both lawsuits allege that dioxins and furans found on the mill site originated from the City of Fort Bragg, not the sawmill. Georgia Pacific, however, dropped their lawsuit entirely in 2014, rather than release documents the city had filed for under discovery. (See https://savenoyoheadlands.com/#snr-v-fb)
We do know that from 1971 to 2002 Georgia Pacific distributed fly ash containing dioxins and furans from the sawmill’s co-generation burner as soil amendments, fertilizer for lawns and gardens, given to employees and property owners, including school districts. Long term Fort Bragg residents still talk about hosing fly ash off their cars every morning. Any dioxins and furans found in current city runoff are most likely residual from that long term pollution by Georgia Pacific. (See https://savenoyoheadlands.com/#off-site-contamination)
Likely driving this new legal foray by Mendocino Railway is the Department of Toxic Substances Control’s unhappiness with their plan to permanently fence off the mill pond where the toxins are found and the runoff flows through, instead of cleaning it up. Mendocino Railway has lost every other lawsuit brought so far. My hope is that the city countersues and forces release of those documents Georgia Pacific kept hidden.
Jade,
While the DTSC has acknowledged concerns by other parties, I don’t believe DTSC has expressed their own unhappiness with that plan. And for what its worth, the plan is far from finalized since it needs to go through the EIR process.
And storm water is a significant issue all by itself. The City’s press release during Storm Water Awareness Week stated, “Storm water is UNTREATED and picks up pollutants along the way and carries these pollutants to our streams, ponds, wetlands and the Pacific Ocean. Storm water pollutants include litter, sediment, bacteria, and chemicals such as fertilizer and herbicides from lawns, and oil and gas from cars. ” For some fun posters, see https://www.facebook.com/CityFortBraggCA/videos/881151540752924/
Yes, there are a lot of lawsuits, but we did not start this. Do you believe it is okay for the City to pollute our property without explanation? For two years the City has not responded to our correspondence and they left us little option what to do.
Chris,
For millennia storm water flowed from the forested flats and terraces of what is now Fort Bragg, in streams now called Alder Creek and Maple Creek, into what was then a tidal estuary abounding in wildlife and significance to local Native people. More than 100 years ago, Union Lumber Company covered the tidal estuary, built berms and dams that created the mill pond, now Pond 8. The continued flows of storm water and seasonal drainage in Maple and Alder Creeks, flowing through underground pipes, kept the mill pond full while serving as a settling pond for storm water runoff as the city developed and paved over streets. It was one of those mutually beneficial relationships typical of company towns.
Following the closure of the mill and decommissioning of the mill site, that relationship continued. Georgia Pacific/Koch Industries, the property owners, tried several strategies to escape the cleanup costs, including attempting to sue prior owners and the City of Fort Bragg, with allegations strikingly similar to your company’s current filing.
At some point, and this is conjecture on my part, GP/Koch stumbled on your brother bragging that because he owned railroads he could use eminent domain to take property and he didn’t have to obey state and local laws. According to Robert Pinoli, before the Coastal Commission, GP approached your company to take the most toxic and disturbed parts of the property by eminent domain, thereby getting a Judge’s signature on the settlement agreement. That agreement reads in part:
“7. Indemnity. Mendocino Railway expressly assumes any and all liability related
to any Environmental Conditions (any circumstance or set of circumstances in, on, under or
about the Property that arise directly or indirectly out of or related to the presence, suspected
presence, release or threatened release of any Hazardous Material (Any “hazardous waste”,
“hazardous substance”, “extremely hazardous substance”, “toxic chemical”, “hazardous
chemical”, “toxic pollutants”, “contaminants”, “chemical”, “chemical substance”, “mold” or
“asbestos”, as such terms are defined in any of the Environmental Laws, or related substances, in
such quantities or concentrations as are regulated by such Environmental Laws or other
applicable laws, or which may be declared to constitute a material threat to human health or to
the Environment.) on the Property as of August 13, 2021 and any Hazardous Materials, and
Mendocino Railway waives, relinquishes, releases, indemnifies and holds harmless Defendant
Georgia-Pacific from any and all claims, demands, administrative orders, causes of action
(including causes of action in tort, remedial actions, losses, damages, liabilities, judgments,
settlements, penalties, fines, costs and expenses (including attorneys’ fees and court costs
actually incurred) of any and every kind or character, known or unknown, whether based upon
negligence, strict liability or otherwise arising out of or related to the Environmental Condition
of the Property, but excluding any claims or causes of action related to personal injury
commencing prior to November 15, 2021. Mendocino Railway expressly acknowledges that the
Subject Property is subject to the California Department of Toxic Substances Control Site
Investigation and Remediation Order No. HAS-RAO 06-07-150 (“Order”). As of November 15,
2021, Mendocino Railway will expressly assume any and all obligations, requirements and
liabilities solely and exclusively related to the Subject Property that arise from the Order and
shall hold Defendant Georgia-Pacific harmless from any such obligations, requirements and
liabilities. As of November 15, 2021, Plaintiff will expressly assume any and all obligations,
requirements and liabilities solely and exclusively related to the Subject Property that arise from
the Order, shall use its best efforts to obtain DTSC’s approval to insert Plaintiff as a party subject
to the Order. Plaintiff shall provide evidence of its best efforts with respect to obtaining DTSC’s
approval no later than December 31, 2021 and monthly thereafter until Plaintiff is added to the
Order.” (https://savenoyoheadlands.com/mrmdom/mill_site_south/21CV00595Eminent%20DomainFinal.pdf)
Salivating at the idea of turning Fort Bragg into an 1890’s company town once again (hyperbole!), your brother swallowed the worm and now you guys are on the hook for the condition of OU-E, that former tidal estuary, now Pond 8 and site of the former co-generation plant just to the north, source of the contaminating fly ash, including the management and remediation of the dioxins, lead and arsenic polluting the soils and pond bottom. Notice that the release you signed specifies “in, on, under or about the Property” which, given the drift range and distribution of fly ash from that co-gen plant, would arguably include all of Fort Bragg.
Your question, “is it okay for the City to pollute our property” raises a number of issues. One, the storm water runoff crosses your property, as it has done for 100 years. Does this constitute a prescriptive easement? I’ll leave that one to the lawyers. The geography of the City leaves no other economically reasonable option.
Two, the modern definition of property derives from the Roman “ius abutendi,” the entitlement to abuse and destroy. This definition of property constitutes one leg of the neoliberal milk stool, the other two being individualism and competition. In case you haven’t been reading Forbes Magazine lately, neoliberalism is rapidly becoming obsolete. Even J. D. Vance ascribes to a flavor of Roman Catholicism that touts the common good. Clearly, all claims of federal preemption aside, as owners you have a regulated stewardship relationship to the property, and I would personally argue, a responsibility to use it to serve the community, the common good, quite as much as your investors’ ROI.
Three, on the issue of storm water, the City is fully aware that the City’s storm water system is overdue for an overhaul, as are the systems of cities large and small throughout California. The obvious solution is a redesign, cleanup and reconstruction of OU-E, returning it to a tidal estuary, day-lighting Alder and Maple Creeks with vegetated ponds to settle out storm water sediment and bio-remediate hydrocarbon pollutants prior to reaching the ocean. But that would depend on you and the City being able to work cooperatively. Perhaps there is an opportunity to create a pivot in that direction. This zombie lawsuit is not a good start. A better start would be for you and your brother to simply quit claim OU-E to the City, if it would take it. Something to think about.
Yest again, Jade doesn’t know what he is talking about. This lawsuit is about stopping the City of Fort Bragg from continued discharge of stormwater onto the Mill Site. It doesn’t address the remediation of toxins although one of the arguments is that the stormwater is contaminated–it is and not just from diozings from fly ash, etc.–so it is harming their property. Just because there is already on-site contamination that needs to be addressed by the property owners doesn’t mean the City’s deficient stormdrain infrastructure should be allowed to contribute to additional damage to their property. Other property owners have had legal disputes with the City because of property damage due to the City’s stormwater runoff onto their property. In general, one party isn’t allowed to artificially direct stormwater runoff onto another’s property. That is what the City is doing both on the Mill site and elsewhere in town. The Skunk hasn’t proposed what Jade says they have and I am not aware that DTSC has weighed in on what level of additional cleanup will be necessary for the central mill pond area. Would Jade like it if the City’s stormdrains emptied out into his yard? Probably not… I certainly wouldn’t.