August 11, 2025
Good Afternoon,
The subject of the West St Watershed c61 litigation has been a hot topic on the bulletin board lately, and will likely be discussed more in depth in the coming months as we head into our Fall Special Town Meeting. I hope everyone will tune in and stay engaged so we can continue to move forward in a direction that is in line with the collective masses (voting is the only way to make your choice become a reality, so I truly hope that everyone who cares will participate).
As noted in this litigation update, regarding the litigation donations, the process has been vetted by the attorneys and reviewed by two judges and the State Ethics Commission. There has been no time that anyone has acted with any nefarious or unethical motives or actions despite recent misleading and suggestive statements. We look forward to further clarifications of any misunderstanding in the coming weeks from the Select Board. If anyone has any questions that I might be able to answer (as the liaison to the donor), please don’t hesitate to ask. There is nothing to hide here.
Anyway, we figured it would be a good time to have the attorneys provide an update on all of the litigation proceedings so everyone can see where we’re at, and we hope you’ll find the update as encouraging as we do.
364 West Street Litigation Update – August 11, 2025
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For nearly five years now, the Town of Hopedale, with the support of its residents as intervenors, has been working through the courts to defend against the Grafton & Upton Railroad’s (the “Railroad”) attempt to steal away from the Town its statutory right to purchase the 130 +/- acres of c. 61 Forestland at 364 West St. and recover damages caused by the Railroad’s senseless clearcutting. In response, the Railroad has engaged in a scorched earth aggressive litigation strategy, bringing two related lawsuits against the Town and its representatives and through a petition to the Surface Transportation Board (“STB”) that the Town’s exercise of its purchase option under the state statute is preempted by federal railroad law. These attempts have failed to date. The Railroad has suffered a series of losses, as the Land Court judge in the chief action has noted. The Town has secured a series of wins and is well positioned to prevail on the exercise of its rights to acquire the Forestland and to potentially recover considerable damages from the Railroad for its senseless clearing of the Forestland during these litigations. The Railroad’s tactics, which include political pressure in the form of onerous discovery and derivative lawsuits may give some the false impression that it is prevailing. It is not.
The Town, the Selectboard and its counsel should be commended for their efforts, resolve and successes against an aggressive opponent. A more detailed update on the status of the various related matters is below.
The Land Court Action
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The primary action is proceeding, albeit slowly, on remand. After the resident intervenors were successful at the Massachusetts Appeals Court, the case was remanded to the Land Court, where the Land Court ruled in favor of Town and the Intervenors, allowing the matter to be reopened and allowing the Town to pursue the enforcement of its c. 61 rights to acquire the Forestland. The Town is also seeking damages caused by the Railroad’s clearcutting of the Forestland.
The Town was successful in dismissing four of the Railroad’s counterclaims. The court then denied the Railroad’s motion to prevent the Town from accepting donations to fund the litigation. The Town was allowed to bring an amended complaint to clarify claims to hold the Railroad owner and president personally liable for the destruction of the Forestland. The Railroad has now Answered that amended complaint, asserting some new counterclaims, and the Town will be responding to it. Discovery is also progressing with the Railroad seeking certain documents and information that the Town asserts is privileged and the Railroad is otherwise not entitled to obtain. The Land Court judge will be hearing argument on that issue on August 28, 2025.
STB and D.C. Circuit Court of Appeals
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As the Land Court action was reopened, in April 2024, the Railroad returned to the STB, asking it to rule that the Town’s effort to enforce its c. 61 rights is preempted under federal railroad law. The Town opposed this petition and STB ruled in favor of the Town, rejecting the Railroad’s argument. The Railroad appealed the STB’s decision to the U.S. Court of Appeals, D.C. Circuit.
The appeal has been fully briefed by the Railroad, the STB and the Town. No oral argument date has been set.
Railroad Lawsuit Against Town Employees – Tortious Interference
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In April of 2024, the Railroad brought a new lawsuit against the Town employees, claiming intentional interference with a business relationship and civil conspiracy, among other things. That complaint failed. The Town officials successfully moved to dismiss the complaint. The Railroad has appealed the dismissal of its claims to the Massachusetts Appeals Court, where the appeal has been fully briefed. No oral argument date has been set.
Railroad Lawsuit Against the Town – Funding and Public Records
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In May of 2024, the Railroad brought another new lawsuit against the Town of Hopedale, trying again to block the donation of funds for the Town’s litigation and to enforce public records law, even as the State Ethics Commission took no action based on a complaint submitted to it that the donation of funds for the litigation is improper. The Town successfully moved to dismiss the funding claims. The Court agreed with the Town and the State Ethics Commission that the funding process is not improper and rejected the Railroad’s argument that it is suffering any harm by the funding donations. The Town did not move to dismiss the public record claims and, instead, has answered that portion of the complaint. Discovery is proceeding on the public records claims.
As always, thank you for reading and staying in touch. Please don’t hesitate to reach out with any comments, questions, or concerns, and we hope everyone is enjoying their summer.
November 11, 2025
Good Evening,
Wanted to share a brief update on the RR’s appeal of the Town’s Surface & Transportation Board win. The case was heard in the DC Circuit Court of Appeals on Oct 25th and it went very well. The Federal judges were fully prepared and asked all the right questions. Sean Grammel provided arguments for our Town as intervenor and he nailed it. We are hopeful for a verdict in the coming months, and fully expect it to be in our favor. It was a very interesting listen. For anyone who wants to hear the proceeding, here is a link to the hearing:
On a local note, once again, we need to bring your attention to a Special Town Meeting that will have a huge impact on our town & urgently request your attendance. A petition article has been included on the warrant and is calling for a change in membership for the Select Board – moving from a 3 member board to a 5 member board. While this may seem like a potentially positive change on the surface, it may not necessarily be the best move for our Town and could have considerable negative effects and unintended consequences. Such a change requires more time for due diligence and consideration.
An article of this magnitude simply does not belong on a Special Town Meeting Warrant without multiple public hearings. As such, we are requesting your attendance at this meeting to vote this down at this time. There are no absentee voting options, you have to be there to vote. Please mark your calendars – Tuesday, November 18, at 7pm, at the Community House. Please take some time to talk to your friends & neighbors and encourage them to attend.
Firstly, Special Town Meetings are designed for routine, administrative and/or emergency items. As such, Special Town Meetings typically have very low attendance. Changing Hopedale’s governance structure is about as far from routine as you can get. It warrants full deliberation and due diligence by all boards and commissions, a comprehensive analysis by an independent committee to assess the impacts and associated increased costs to our town governing practices (the State Legislature typically expects this to be done prior to any vote for such a significant change), that all residents be given ample opportunity to ask questions at meetings and have time for full consideration of such a major change, and that this vote would be taken where it belongs, at the Annual Town Meeting.
Whether you personally support a 3 or 5 member select board, we request your attendance and NO vote to defeat this specific article at this time. A NO VOTE at the Special Town Meeting does not remove this option from Hopedale at any point in the future, but a YES VOTE means this change will be implemented without further consideration (& the decision will have been made by the smallest fraction of our population).
Secondly, this is just bad for the West St property issue at this time. The court process is so, so, so slow, but Hopedale is now significantly closer to obtaining the property via our Chapter 61 rights. We are also hopeful, actually even expecting, significant damages to be awarded. At a minimum, the timing of this type of Town governance change would complicate the remaining legal proceedings. Worse, is the potential that it creates setbacks to the progress made to complete the directives of the multiple Town Meeting votes related to the property starting back in October 2020. The rushed timing of this article put into a low attendance meeting makes us very concerned that this is yet another tactic being used to derail the litigation before its final conclusion.
The proposed article can be read HERE:
The petition originator put together a list of benefits to the proposed change and you can read them HERE.
After spending a little time looking into this, Protect Hopedale’s Resources group have identified some counterpoints that should be considered. You can read them HERE.
At this point, it’s unclear whether this change would be a good thing or a bad thing for our Town. Without time to fully assess the pros and cons, how can we be asked to make such an important and irrevocable change in a minute’s notice? The process and timing is just wrong. We strongly encourage you to attend and vote NO at this time, and request that the town instead begin the process to fully analyze this proposed change.
As always, thank you for staying involved and informed.
February 12, 2026
Good Evening,
Wanted to share some great news. As you know, the RR has filed several frivolous lawsuits over the years against the town & town officials. One of the more recent cases was filed against Ed Burt & Tim Watson. The case was dismissed quickly in Superior Court last year, but the RR, of course, appealed. The case was heard by the Panel Appeals Court in the Fall and we have been looking forward to the ruling.
The appeals court issued a published decision today, affirming the dismissal of the railroad’s complaint against Ed Burt and Tim Watson. I’ve attached it HERE. It is 27 pages long and details Ed’s efforts. The appeals court finds that Ed is a responsible, rightfully concerned public official dedicated to protecting the town’s water supply. They also note that his emails were polite and professional – no threats. This is a huge win, especially for Ed. We are so fortunate to have a Water & Sewer Department that takes their roles seriously, and that their dedication to ensuring we have safe water has not been deterred by the aggressive, frivolous attacks.
The following paragraphs from the ruling say it all.
“Grafton & Upton’s transloading facility is located in Hopedale’s Zone II protected area — a fact that was apparently brought to the EPA’s attention by Burt. The contaminants headed Hopedale’s way in 2022 under the transportation and disposal plan and Grafton & Upton’s contract were from a Superfund site and included depleted uranium — reasonably raising concerns for a public servant charged with oversight of the public water supply. And more than trains passing through Hopedale en route to other destinations was involved: over 100,000 tons of contaminated soil in bags that had experienced frequent tearing were expected to be shipped by tractor trailers to the railyard in Hopedale’s Zone II protected area and transferred from the trucks via gondolas to the railcars.
So far as the record reveals, as the chair of the water and sewer commission — the public body charged with ensuring the environmental condition of the town’s public water supply, see G. L. c. 40N, § 1 — Burt had every right and the responsibility as part of his official duties to question the possible impact of the shipments, the safety precautions in place, and the oversight of the transloading. Indeed, it would have been a dereliction of duty not to have asked questions about activities of this magnitude in the town’s Zone II protected area and not to have monitored and questioned the operations closely, as Burt did.
Burt’s numerous and frequent communications to the EPA, the DEP, and de Maximis officials do not show bad faith or actual malice but reflect the record of a local official trying to do a thorough job on behalf of his town and to minimize the chance of any possible disaster.”
So if you see Ed and Tim, they deserve giant congratulations and our thanks. Today is a GREAT day!!!
In regards to the other cases, we are anticipating a judgement on the RR’s appeal of the STB case any time now. We look forward to that ruling as well. Our land court c61 case continues to move along. Damage reports have been completed and served to the RR, depositions are almost finished, and there will be a status hearing at the end of March with Judge Rubin where we’re hoping trial dates will be set.
As always, thank you for staying in touch, and I hope everyone is enjoying the snow!
Elizabeth Reilly
May 10, 2026
Good Morning,
It’s been awhile, so just wanted to send a brief update on the status of the cases, and send a reminder to mark your calendars for our elections (Tues, May 12) and Annual Town Meeting (Tues, May 19).
1 – The Town has made significant progress in its litigation against the Grafton & Upton Railroad over the Town’s rights to the c. 61 Forestland. Fact discovery has concluded and the Land Court has scheduled a status conference for July 24, 2026. Prior to that status conference, the parties will submit an agreed upon statement of issues for trial that will narrow and focus what remains in dispute for trial (finally!!). The best news is that the Land Court has tentatively scheduled trial for Dec 1 – Dec 4, 2026. The Town’s rights to the c. 61 Forestland, pursuant to the exercise of its right of first refusal, will then be resolved by the entry of judgment. Assuming that the Town’s rights to the land are confirmed by the Court, the Court will then determine whether the Town’s purchase price is reduced and by how much or if the railroad will actually owe considerable monetary damages (potentially well over 10 million dollars) to the Town for the land clearing. It has been a long, arduous process, but the Town, with the support of the resident intervenors, has been successful as the end is in sight.
2 – After the Surface Transportation Board determined that the Town’s c. 61 rights are not preempted by federal railroad preemption law, the railroad appealed to the D.C. Circuit Court. A hearing on that appeal was held in late October. The panel seemed to lean favorably for the Town. A decision from the D.C. Circuit could come any day now.
3 – The public records case is still pending in the courts with little movement. We will send an update when things start to pick back up here.
4 – The final status of the Burt/Watson litigation from the Supreme Court of MA is in! It is short and sweet (why waste time on another frivolous appeal?):
“NOTICE OF DENIAL OF APPLICATION FOR FURTHER APPELLATE REVIEW – Please take note that on April 16, 2026, the application for further appellate review was denied.”
The RR has appealed to the highest court, and Ed and Tim have been fully vindicated (yet again). The courts ruled that they were performing their duty to protect our town’s water supply just as they should. We thank them!
We wanted to mention that while we know waiting for the slow court movement feels like nothing is happening, our Hopedale cases are already doing a whole lot of good. Our initial win that allowed us to reopen the c. 61 case has really made a mark and has been used in many court cases (included appeals cases) to support parties looking to intervene in important issues. The Burt/Watson case provided strong and clear decisions protecting municipal employees and agents from being held liable for acts that make private parties upset. Other municipalities have benefited in court from the multiple positive verdicts in this case, and knowing what a personal toll this case took on Ed & Tim, it’s wonderful to know that others are being protected from bullies using the decisions made for the Town of Hopedale.
Our annual town elections are scheduled for Tues, May 12. There are a number of contested races on the ballot, and we hope you’ll come out in droves to thank the candidates for running and show your support. Here is a link to the election information and sample ballot:
https://www.hopedale-ma.gov/m/newsflash/home/detail/16
We are excited to share some information about Carole Mullen who is running for a position on the Select Board. As you know, this board is so important for every issue in town, the completion of the land acquisition being only one of them, so we wanted to share Carole’s campaign information so you can see why we are so glad to have her running and we hope you will consider supporting her with your vote. You can read her campaign materials HERE. No matter your choice in any race, please make your voice heard by voting and encourage your neighbors and friends as well. Thank you to everyone running and we wish you all the best of luck.
Lastly, our annual town meeting is scheduled for Tues, May 19. There will be the usual housekeeping items, but also some important decisions to be made (take a peek at the warrant before attending). Thank you in advance to all who participate. Here’s a link to the warrant:
https://www.hopedale-ma.gov/DocumentCenter/View/5717/ATM-Warrant-5-19-2026?bidId=
As always, thank you for staying informed and tuned in. It’s been a long process, but we are getting closer & closer to the final verdict.
June 5, 2026
WestStWatershedUpdates – Elizabeth Reilly
Today is a good day!!
As we know, the RR has been using the threat of the Surface and Transportation Board to keep us from exercising our legal right to the West St Watershed property since the beginning of the acquisition process. Their claim is that the RR has Federal preemptive rights over our State c61 Right of First Refusal to own the property. They lost their original argument in front of the STB, and filed an appeal with the Federal appeals court and arguments were heard last Fall.
We just received the ruling from the DC Circuit of Appeals and the RR has been denied yet again. You can read the full ruling HERE. The Court went through each argument the RR used and denied every single one. So, without a doubt it has been ruled that the RR does NOT have preemptive rights to our c61 watershed property. There is no other avenue of appeal here.
This important ruling is yet another in a string of wins that will be very helpful when we argue in court in December in front of Judge Rubin. Helpful not just for our c61 RoFR to acquire the property but for our damages claims (which are significant) as well.
Another good day for our forestland, our current water supply, and our only potential future water supply – we’ll take it!
Hope everyone has a wonderful weekend!