In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1211
K ENNETH IRISH, et al.,
Plaintiffs-Appellants,
v.
BNSF R AILWAY C OMPANY, f/k/a
B URLINGTON N ORTHERN AND
S ANTA F E R AILWAY C OMPANY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin
No. 08 C 469—Barbara B. Crabb, Judge.
A RGUED S EPTEMBER 12, 2011—D ECIDED M ARCH 21, 2012
Before B AUER, R OVNER and W ILLIAMS, Circuit Judges.
R OVNER , Circuit Judge. This is a lawsuit in search of
a viable theory of recovery. The plaintiffs have sued
the BNSF Railway Company and Burlington Northern
and Santa Fe Railway Company (collectively “Burlington
Northern”), along with two Burlington Northern em-
2 No. 11-1211
ployees, under theories of negligence and nuisance for
damage that occurred to their homes after a BNSF
trestle became clogged with debris during a rainstorm,
resulting in widespread flooding. The district court
concluded that section 88.87 of the Wisconsin Statutes
provides the exclusive remedy for claims resulting
from the construction and maintenance of railroad
grades, and that because the plaintiffs had failed to
follow the governing notice procedures for claims under
that statute, relief was unavailable to the plaintiffs. Irish
v. BNSF Ry. Co., 2010 WL 4293578 (W.D. Wis. Oct. 21, 2010).
We affirm.
The small village of Bagley, Wisconsin, sits on the
eastern bank of the Mississippi River. On July 17-18, 2007,
a 500-year rain event in northeastern Iowa and south-
western Wisconsin overwhelmed local drainage ways
with huge amounts of runoff water. Where the Burlington
Northern Railway Bridge crosses over the Glass Hollow
Drain near Bagley, debris swept along by the raging
waters quickly clogged the trestle beneath the bridge
(hereinafter, the “BN trestle” or the “trestle”), causing
the runoff to back up and inundate the village. Most of
the village’s 300 to 400 homes were flooded.
Four of Bagley’s residents filed suit against Burlington
Northern and two of its supervisory employees in Wis-
consin state court on behalf of themselves and a pro-
posed class of others injured by the flood, alleging that
Burlington Northern’s faulty design and maintenance
of the trestle entitled them to relief on theories of negli-
gence and nuisance. Burlington Northern removed the
No. 11-1211 3
suit to federal court pursuant to the Class Action Fair-
ness Act (“CAFA”), 28 U.S.C. § 1332(d)(2) & (d)(5). After
the plaintiffs filed an amended complaint from which
their class allegations were excised, the district court
remanded the case to state court. See Irish v. Burlington
N. Santa Fe Ry. Co., 2009 WL 1308429, 73 Fed. R. Serv. 3d
702 (W.D. Wis. May 7, 2009) (granting plaintiffs leave
to amend their complaint and remanding case to state
court); Irish v. Burlington N. Santa Fe Ry. Co., 632 F. Supp.
2d 871 (W.D. Wis. 2009) (denying reconsideration
of remand order). We vacated the decision to remand,
holding that removal to federal court under CAFA
survives even when the plaintiffs later elect not to
pursue class certification. In re Burlington N. Santa Fe Ry.
Co., 606 F.3d 379 (7th Cir. 2010) (per curiam). On
remand, the district court dismissed the amended com-
plaint as to Burlington Northern for failure to state a
claim on which relief could be granted. 2010 WL 4293578.
The court rejected Burlington Northern’s contention
that federal law preempted the plaintiffs’ claims under
Wisconsin law for negligence and nuisance, id. at *2-*3,
but agreed that Wis. Stat. § 88.87 provided the exclusive
remedy based on the types of facts alleged in this case
and that relief was foreclosed to the plaintiffs under
that statute because they had not filed a timely notice
of claim, id. at *4-*5. Following supplemental briefing
as to the remaining individual defendants, the district
court dismissed them as well and entered final judgment.
The court rejected as untimely the plaintiffs’ requests
for leave to amend their complaint to assert claims for
equitable relief and for relief under federal common
4 No. 11-1211
law against Burlington Northern and also to permit
them to proceed against Burlington Northern under
section 88.87 notwithstanding their failure to comply
with the pertinent notice requirements on the theory
that Burlington Northern had actual notice of their
claim. R. 89.
On appeal, the plaintiffs contend that, contrary to
the district court’s reading of section 88.87, the statute
does not reach the type of claim they have made and
that consequently they remain free to seek relief under
common law theories of negligence and nuisance. In
relevant part, section 88.87 provides as follows:
(2)(a) Whenever any county, town, city, village,
railroad company or the department of transpor-
tation has heretofore constructed and now main-
tains or hereafter constructs and maintains
any highway or railroad grade in or across
any marsh, lowland, natural depression, natural
watercourse, natural or man-made channel or
drainage course, it shall not impede the general
flow of surface water or stream water in any
unreasonable manner so as to cause either an
unnecessary accumulation of waters flooding
or water-soaking uplands or an unreasonable
accumulation and discharge of surface waters
flooding or water-soaking lowlands. . . .
****
(c) If a city, village, town, county, or railroad
company or the department of transportation
constructs and maintains a highway or railroad
No. 11-1211 5
grade not in accordance with par. (a), any prop-
erty owner damaged by the highway or railroad
grade may, within 3 years after the alleged
damage occurred, file a claim with the appropriate
governmental agency or railroad company. The
claim shall consist of a sworn statement of the
alleged faulty construction and a description,
sufficient to determine the location . . . of the lands
alleged to have been damaged by flooding or
water-soaking. Within 90 days after the filing of
the claim, the governmental agency or railroad
company shall either correct the cause of the
water damage, acquire rights to use the land for
drainage or overflow purposes, or deny the
claim. If the agency or company denies the claim
or fails to take any action within 90 days after the
filing of the claim, the property owner may
bring an action in inverse condemnation under
ch. 32 or sue for such other relief, other than dam-
ages, as may be just and equitable.
The statute thus imposes a duty on a railroad company
that constructs and maintains a railroad grade in or
across a drainage course not to impede the flow of sur-
face water in an unreasonable manner, and it grants to
a landowner injured as a result of the breach of that
obligation, provided the landowner has given appro-
priate notice to the railroad company, the right to sue
for equitable relief and inverse condemnation but not
damages.
On its face, the statute would appear to bar the very
suit for damages that the plaintiffs are pursuing. As the
6 No. 11-1211
district court noted, there is no dispute that Burlington
Northern (including its predecessors) constructed the
bridge and trestle over the Glass Hollow Drain and now
maintains that trestle. R. 89 at 11-12 (“Plaintiff’s com-
plaint is written on the assumption that the railroad
company ‘constructed and now maintains’ the trestle
at issue in this case within the meaning of § 88.87(2)(a).”).
Allegedly, it was the accumulation of debris at that
trestle that impeded the flow of runoff water and caused
the plaintiffs’ properties to flood; and plaintiffs at-
tribute the formation of the logjam at least in part (more
on that in a moment) to Burlington Northern’s pur-
ported negligence in maintaining the trestle. The
Wisconsin appellate court’s decision in Pruim v. Town
of Ashford, 483 N.W.2d 242, 244-45 (Wis. Ct. App. 1992),
indicates that this is exactly the sort of claim to
which section 88.87 applies, and the plain language of
the statute limits the relief available to an injured land-
owner solely to equitable relief and a claim for inverse
condemnation. Pruim ordered the dismissal of a nuisance
claim seeking compensation for flood damage that oc-
curred to the plaintiff’s property when a nearby cul-
vert and roadway shoulder, which allegedly had
been negligently designed and maintained by the local
municipality, washed out during a heavy rain. “We
conclude that the legislature decided to regulate and
control strictly the types of claims that may be made
by property owners against governmental entities re-
garding highway construction and repair. Common law
nuisance actions are not allowed. The statute clearly and
unambiguously forbids it.” Id. at 245; see also Kohlbeck v.
No. 11-1211 7
Reliance Constr. Co., 647 N.W.2d 277, 280 (Wis Ct. App.
2002) (“Section 88.87 limits the type of relief available to
those that are stated in the statute.”). The district court
reached the same conclusion with respect to the plain-
tiffs’ claims against the railroad company in this case.
2010 WL 4293578, at *4.
The plaintiffs now contend that the district court as
well as the appellate court in Pruim read section 88.87
too broadly. Although the statute purports to apply to
any government entity or railroad company that “con-
structed and now maintains” a grade over a waterway
or drainage course, in the plaintiffs’ view this language
merely serves to identify the entity that has authority
over the grade at time of claimed damage rather
than to extend the statute’s substantive provisions to
the maintenance of a grade as well as its design and
construction. Looking to other language in the statute,
they argue that the Wisconsin legislature was concerned
solely with faulty construction of a type that might give
rise to a continuing nuisance thereafter.
It is obvious that initial faulty construction which
disturbs the natural flow of water has the potential
for repeated flooding and, consequently, repeated
claims for damage arising from the continuing nui-
sance created by that faulty construction. The legisla-
tive intent was to require property owners affected
by such a condition to bring an action for inverse
condemnation or “such other relief” as will effectively
remedy the continuing nuisance “once and for all.”
Appellants’ Lead Br. 13. The plaintiffs go on to em-
phasize that their claim, by contrast, is concerned not
8 No. 11-1211
with the design but solely with the maintenance of the
BN Trestle, and in particular the company’s failure
to screen or otherwise protect the trestle from the ac-
cumulation of debris which might cause the flow of
water through the Glass Hollow Drain to become
blocked. “Because there is no clearly stated legisla-
tive intent to preempt common law claims based on
negligence and nuisance arising from this alleged faulty
maintenance, as opposed to faulty construction, of the
Burlington Northern Trestle[,] the District Court’s
holding that plaintiffs’ common law claims for damages
are preempted by Wis. Stat § 88.87 was erroneous and
cannot stand.” Appellants’ Lead Br. 15 (emphasis in
original).
The notion that the plaintiffs’ claim is founded solely
on negligent maintenance of the BN Trestle may be
doubted. As Burlington Northern is quick to point out,
no fewer than eight paragraphs of the amended com-
plaint charge the defendants with faulty design and
construction of the trestle, in addition to inadequate
maintenance. R. 58 ¶¶ 5, 31, 40, 46, 47, 48, 52, 53. But
we may set this point aside.
The more important point is that this argument, if it
was made at all below, was never developed. As the
district judge noted in dismissing the plaintiffs’ claims
against Burlington Northern, the only developed argu-
ment that they made against application of section 88.87
was that it is a governmental immunity statute that
applies to private parties only when those parties are
affiliated with government entities. 2010 WL 4293578,
No. 11-1211 9
at *4. That was, indeed, the argument to which the
plaintiffs devoted nearly all of their attention in the
relevant portion of the memorandum they filed in op-
position to the defendants’ motion to dismiss. R. 72 at 19-
25. (It was an argument doomed from the start, as
the district court noted, given that the statute expressly
applies to railroad companies per se, with no require-
ment that they be acting in affiliation with government
entities. 2010 WL 4293578, at *4.) It is true that in all of
two sentences at the beginning of this section of their
memorandum, the plaintiffs did say the following:
[T]he plain language of the statute clearly sets up
a claims procedure and remedy limitation for new
constructions that affect waterways. This statute was
never intended to apply to a railroad compan[y’s]
failure to maintain a waterway that (1) has nothing
to do with its tracks or roadbed and (2) has not had
a new construction in over 80 years.
R. 72 at 19. The memorandum then switched gears and
for the next five and one-half pages principally pursued
the argument that the statute did not apply to rail-
road companies lacking any affiliation with govern-
mental entities, while making scattered references to an
unelaborated distinction between the alteration of
drainage ways and the collection of surface water. R. 72
at 20-25. At the close of this section, the plaintiffs
repeated the idea that they had briefly mentioned and
then dropped earlier:
Beyond that, Defendants’ failure to maintain [their]
right-of-way is not the type of construction or
10 No. 11-1211
repair case leading to changes in surface water that
is targeted by the statute. Further, Plaintiffs’ claims
have no relation to Defendants’ construction or main-
tenance of [their] railway, [their] roadbed, [their]
railroad ties, or other areas immediately adjacent
to the roadbed.
R. 72 at 25.
These passing remarks were insufficient to preserve
the argument that plaintiffs are making now. First, the
argument was never developed below. A two-sentence
aside, made without citation to any authority and in the
midst of an argument focused on another point, does
not alert the court that the party is making an in-
dependent argument and ordinarily will not warrant
the court’s attention. Crediting the plaintiffs with the
additional two-sentence summary at the close of that
section of their memorandum does not render the argu-
ment any more developed. In fact, that refrain only
casts doubt on the exact point that the plaintiffs
intended to make: In the first instance, it appeared that
the plaintiffs were principally suggesting that the statute
only applied to newly constructed tracks or roadbed;
whereas in the second instance the plaintiffs seemed to
acknowledge that faulty repair or maintenance might
also bring the statute into play, but only insofar as they
related to the railway and the roadbed, as opposed (evi-
dently) to something like a trestle. Which makes it all
the more clear, finally, that the plaintiffs never ade-
quately presented to the district court the particular
argument they are making now, that section 88.87
No. 11-1211 11
applies only to the sort of faulty construction that might
give rise to a continuing nuisance vis-à-vis the flow of
surface water above, below, or around a roadway or
rail line.
The short history of this case reflects the ever-shifting
nature of the plaintiffs’ arguments. When the case was
removed to federal court, the plaintiffs dropped their
class allegations and disavowed any federal claims, in
the hope that the case would be returned to state court.
In their amended complaint, the plaintiffs cited sec-
tion 88.87 as support for their claim, contending that
the defendants had violated the obligations imposed by
that statute, R. 58 ¶¶ 33(c) and (d), 35, but when
Burlington Northern moved to dismiss the complaint
on the ground that the relief the plaintiffs were
seeking was not authorized, the plaintiffs turned around
and contended that the statute did not apply to their
claims. See 2010 WL 4293578, at *4 (“Plaintiffs’ position
is somewhat surprising in light of the fact that they
allege in their amended complaint that defendants
violated Wis. Stat. § 88.87.”). When the district court,
after dismissing the corporate defendants from the case,
solicited supplemental briefing as to the appropriate
disposition of the individual defendants, the plaintiffs
sought leave to amend their complaint a second time
in order to raise the very sorts of federal claims (among
others) that they had disavowed when they filed their
first amended complaint. They also attempted to make
other arguments that the district court appropriately
characterized as untimely. And on appeal, as we have
discussed, they have attempted to challenge the dismissal
12 No. 11-1211
of their suit on the basis of an argument that they never
developed below. As Judge Crabb so aptly observed,
“Although the losses plaintiffs sustained in the 2007
flood are unfortunate, even a sympathetic plaintiff is not
entitled to an endless number of chances to reinvent
this lawsuit until he discovers a version that leads
to victory.” R. 89 at 3.
The plaintiffs forfeited the argument that they make
now as to the scope of section 88.87 by not developing
the argument below, and this is not the rare civil case
in which the forfeiture might be overlooked. See
Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794, 803 (7th
Cir. 2010), cert. denied, 131 S. Ct. 1007 (2011). They also
attempt to argue that the remedy of inverse condemna-
tion authorized by section 88.87 is insufficient; but that
too appears to be an argument that they failed to raise
below. In view of the forfeiture, we deny the plaintiffs’
request to certify to the Wisconsin Supreme Court any
question concerning the proper construction of section
88.87. And because the plaintiffs have forfeited the argu-
ments they make on appeal as to the scope of sec-
tion 88.87, we need not reach the defendants’ alternative
contention that the plaintiffs’ state claims are preempted
by the Federal Railway Safety Act.
A FFIRMED
3-21-12