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Schwartzman, Inc. v. Atchison, Topeka & Santa Fe Ry.

ELR Citation: 25 ELR 20073
Nos. No. 93-0307 JB, 857 F. Supp. 838/(D.N.M., 06/29/1994) Staying injunctive relief claims; dismissing negligence per se claims

The court holds that the primary jurisdiction doctrine requires it to stay a landowner's claims for injunctive relief against the owner of a railroad tie treatment site for polluting the landowner's groundwater and that the landowner established material facts precluding summary judgment on its state-law claims arising from migration of creosote contamination into the groundwater underlying its property. The court also dismisses the landowner's negligence per se claims premised on violations of New Mexico's environmental and nuisance statutes because none of those statutes provide private enforcement mechanisms.

The court first stays the landowner's equitable nuisance claims. Should the court entertain the landowner's public nuisance claim, and should it prevail on this claim, the court would have to fashion an appropriate investigatory and remediation order. The court would have to assess whether defendant has adequately investigated the groundwater contamination, or whether further investigation would be necessary; whether defendant's methods of remediation are adequate; what level of contamination is tolerable or acceptable; and a myriad of other technical matters. Theoretically, the court could receive extensive expert testimony, or appoint a special master, but such methods would represent a serious drain of judicial resources and would largely duplicate the present efforts of the U.S. Environmental Protection Agency (EPA) and the New Mexico Department of the Environment. Evaluating the proper components of such a plan is best left to EPA, a body that is far better suited to resolve such issues by reason of specialization, by insight gained through experience, and by more flexible procedure. Should this court independently determine an appropriate investigatory and remediation plan, aspects of the plan may contradict the pending remedial investigation and feasibility study (RI/FS), and subject defendant to conflicting obligations. One purpose of the doctrine of primary jurisdiction is to promote uniformity and harmony is the regulatory sphere the agency is entrusted to govern. Also, EPA has already begun the process of initiating an RI/FS pursuant to the site's likely inclusion on the national priorities list, and is diligently pursuing cleanup of the site. Should this court stay the proceedings with respect to the landowner's public-nuisance claim and the injunctive relief requested for landowner's private-nuisance claim, the landowner may yet pursue monetary damages under the theories of negligence, trespass, private nuisance, and strict liability, which would include any costs necessary for cleanup. The court rejects the railroad's argument that the landowner's punitive damages claim is a prayer for relief without an underlying cause of action.

The court next denies the railroad's summary judgment motion on the landowner's trespass and nuisance claims, because the railroad company failed to contradict or impeach expert testimony that it is very likely that groundwater underlying all of the landowner's property is contaminated with creosote released from the railroad company's operation of the wood treatment plant. It is also undisputed that the contamination is not limited to the site; the groundwater underneath a portion of the landowner's property is contaminated; the site had been actively discharging waste for nearly 65 years; and the groundwater in this area moves relatively quickly and has changed direction over time. The court next dismisses the landowner's negligence per se claims premised on New Mexico's public-nuisance statute, the Hazardous Waste Act, and the Water Quality Act. A negligence cause of action predicated on an alleged statutory violation is little more than an attempt to assert that the statute permits a private cause of action for damages. Neither the New Mexico Hazardous Waste Act nor the Water Quality Act provides as a remedy private enforcement and recoverability of pecuniary loss. No provision exists for private litigants to sue for compensatory damages. To permit a private cause of action for damages, by allowing the landowner to allege negligence per se based on violations of the Act, would be engrafting an additional remedy the legislature did not provide. Assertion of a private cause of action would not only be contrary to legislative intent, but may actually frustrate that intent. If the landowner were permitted to recover damages for their own individual losses before the state could assess civil penalties, then potentially less money would be available for statewide cleanup. In addition, the New Mexico Acts vest decisionmaking authority in one centralized agency. Allowing private rights of action may interfere with the uniform exercise of that authority. The landowner's reliance on New Mexico's public-nuisance statute is similarly misplaced and the statute does not provide for recoverability of damages. Nonrecoverability of pecuniary loss is consistent with the statute's intent.

Counsel for Plaintiff
David V. Halliburton
Eaves, Bardacke & Baugh
6400 Uptown Blvd. NE, Ste. 110-W, Albuquerque NM 87176
(505) 888-4300

Counsel for Defendant
Peter J. Adang
Law Offices of Peter J. Adang
500 Marquette St. NW, Ste. 630, Albuquerque NM 87102
(505) 242-3999