Cattle conflict: Railroad, cattleman in court

Cokeville – Tim and Matthew Teichert of Teichert Brothers, LLC saw a huge loss at the end of 2010 when a Union Pacific train killed 229 of their cattle outside of Cokeville.
“Around 4:30 p.m. on Dec. 31, 2010, almost 230 cows were hit and either injured or killed,” says Teichert. “A neighbor called and said ‘I think you have cows on the tracks,’ I thought a bunch of cows had jumped the fence.”
      When Teichert arrived on the scene, he said there were dead cows all over the railroad tracks. He continues, explaining that the cows got onto the railroad tracks by way of a gate that was only secured by a chain and a leaning fence post.
      Hank Bailey, attorney at Bailey, Stock, and Harmon in Cheyenne, who represents Teichert Brothers, LLC in the case, says, “This particular fence had a gate in it. There was a large gap between the end of the gate and the end post of the fence such that it really didn’t form a complete barrier to cattle getting on the tracks.”
      “We believe the cattle went through this gap that should not have existed and got to the tracks. The cattle also broke a chain, which caused the gate to swing open, allowing more cattle to wander onto the tracks,” continues Bailey. “The gate and fence fell into disrepair over time and, on the day of the accident, was not sufficient to keep cattle off the tracks.”
Teichert’s employees have testified the gate was closed, as did the operator of a train that went by at 3:50 the same afternoon.
      Union Pacific equips each train with video equipment, which confirms the cattle escaped through the gate.
      “The video shows that you can see the cows from a long way away, and the train didn’t attempt to slow down or stop, even as they were hitting the cows,” says Teichert.
      When Union Pacific denied the Teichert Brothers, LLC claim for the loss of the nearly 230 cows, the ag operation filed a lawsuit against the railroad company. With the help of Bailey, the Teichert brothers are preparing for their Nov. 21 court date.
      Bailey explains that Wyoming statute 37-9-304 obligates the railroad to fence its right of way and keep cattle off the tracks.
      “When they don’t do that, the railroads are liable for any livestock that are killed on their tracks,” says Bailey, referencing statute 37-9-305. “It’s pretty straightforward.”
Bailey says Union Pacific disputes the claim, as there is a fence present in the area.
      “There really is no dispute about the number of cows killed or the value of the cows,” explains Bailey. “The only issue in this case is whether the Union Pacific filled its statutory responsibility to keep cattle off their tracks.”
      Teichert comments on the Wyoming statutes, saying, “The laws are actually pretty good and well written. They do a good job protecting the landowner.”
Teichert says, “They still haven’t fixed the fence.”
      He also says he hasn’t yet been paid for his cows. Teichert’s cattle would have calved by this point, as well.
      “We’re also out this years’ calf crop,” says Teichert. “We’ve racked up a lot of expenses since December.”
      For other Wyoming livestock owners with land adjacent to the railroad, Teichert recommends a few simple actions to protect yourself.
       “If you border the railroad, make sure you take pictures of your gates and fences every year,” says Teichert. “Also, check out any fence maintenance or crossing agreements.”
      Crossing agreements, explains Teichert, are not tied to the land and my not show up in a title search, making them more difficult to locate.
      He also recommends that livestock operators have a good attorney and don’t allow themselves to be intimidated by the railroad if any dispute arises.
      “They really tried to intimidate us,” says Teichert. “They threatened to counter-sue us for lost time on the train, damage to the locomotive and things like that. They also brought forward a crossing agreement that indemnified the railroad of any expenses. However, the agreements were for an entirely different crossing.”
      Lastly, Teichert emphasizes that local employees are just doing their jobs.
      “The local Union Pacific employees who have gone and done depositions have been great and have been honest,” says Teichert. “Don’t be mad at the local employees.”
      Through the entirety of the case, Teichert says it would have been very difficult without the help of Farm Credit Services of America and his loan officer Brad Wilford.
      “They stood behind us,” says Teichert. “I think that if I had been with a commercial bank or anyone who didn’t really know ag loans, we could have been in hurting shape.”
      “Right now we have collected a number of depositions and will be taking more the first part of September,” says Bailey.
      As the attorneys in the case continue to gather depositions and complete their discovery, they will advance to a final pre-trial conference with the judge in early November. The case will be tried beginning Nov. 21 in United States District Court in Cheyenne.
Saige Albert is assistant editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.