N.D. derailment victims win 8th Circuit case

The 8th U.S. Circuit Court of Appeals panel said in a 2-1 ruling that the legislation signed by President Bush last August does not infringe on the rights of railroads.

The ruling opens the door for some Minot, N.D. residents to revive personal-injury lawsuits against the Canadian Pacific Railway Ltd. stemming from a January 2002 derailment on the west edge of the city.

Railroad attorney Tim Thornton said he will ask the full 8th Circuit Court to consider the case, and vowed to take it to the U.S. Supreme Court if necessary. "It's not over," he said.

Tom Lundeen, the lead plaintiff in the case, said Wednesday he was elated.

U.S. District Judge Daniel Hovland in Bismarck had ruled in March 2006 that the Federal Railroad Safety Act protected Canadian Pacific from claims stemming from the Minot derailment. Congress later amended the law. Canadian Pacific challenged whether the change was constitutional.

"We conclude the amendment is constitutional," Judge Kermit Bye wrote in the majority appeals court opinion filed Wednesday in St. Louis.

The 8th Circuit ruling means the cases of Lundeen and more than a dozen others whose lawsuits against Canadian Pacific were thrown out of federal court in Minnesota last year can be returned to state court.

"I'm hoping the ball will really start moving now," Lundeen said. "It's something we were hoping for and really praying for."

The appeals court ruling was not unanimous. Judge C. Arlen Beam called the conclusions of Judges Bye and Lavenski Smith "overreaching."

"CP contends that this entire amendatory exercise by Congress is unconstitutional, and it may well be," Beam wrote.

The Canadian Pacific train that derailed on the west edge of Minot on Jan. 18, 2002, sent a cloud of toxic anhydrous ammonia farm fertilizer over the city that killed one man who tried to escape the fumes and sent others to the hospital with eye and lung problems. Hundreds of people sued in North Dakota and Minnesota, where the Calgary, Alberta-based railroad has its U.S. headquarters.

Hovland late last year approved the terms of a $7 million settlement in a class action case. The matter decided by the 8th Circuit involved cases that were not part of the class action.

Thornton had argued that Congress was telling judges how to interpret the law, which would be a violation of separation of powers, and that Congress was unfairly targeting Canadian Pacific.

The 8th Circuit majority rejected those arguments, saying Congress had "legitimate legislative purposes for adopting the amendment and acted rationally in doing so."

North Dakota's congressional delegation pushed the law change through Congress and on Wednesday applauded the 8th Circuit ruling.

"The railroads are trying to defend a ridiculous position," said Rep. Earl Pomeroy, D-N.D. "Federal law never intended to give railroads a free pass for their negligent conduct."

Bye said Congress did not guarantee the plaintiffs would get anything from Canadian Pacific. "Victims of railroad accidents must still prove their cases in court," he wrote.