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Right of way changes affect all Alaskans, not just Railbelt

John Pletcher
OPINION: The governor should protect private property interests and public access to public lands, especially given his announced policy as to both. Loren Holmes photo

Alaska's Railbelt serves private and public lands along 500 miles of track right of way of the Alaska Railroad. But changes are underway in which bureaucrats will adversely affect private property owners and public land users. The problem here has been decades in the making.

The Alaska Railroad, created by the Alaska Railroad Act of March 12, 1914, and completed in 1923, has (or had) a 200-foot-wide track right of way for limited “railroad, telephone and telegraph” purposes.

When homesteaders were granted patents, the 200-foot ROW was reserved in their patent, giving the federal government the right to use the 200-foot-wide ROW after the government transferred the property to the homesteader. The federal government conveyed the assets of the railroad to the state of Alaska under the Alaska Railroad Transfer Act of 1982. In the ARTA discussion, then-Gov. Jay Hammond described the ROW as the “standardized” railroad easement in Alaska. The 1914 ROW, which has limited rights for the railroad, allows other uses compatible with safe operations, such as lawns and gardens for private property owners over whose property the ROW passes.

In 1985, interim ARTA transfers were made of some railroad assets. But portions of the ROW encumbered by conflicting Native claims were left for later resolution by the threat of an “exclusive use” easement in Native areas if they refused to settle these conflicts. Without public input, and using these Native claim procedures, the railroad, BLM and the Department of the Interior have been converting the entire ROW, from "railroad telephone and telegraph" to an “exclusive use” easement. This allows the railroad the right to exclude other users and to fence off the right of way.

This change affects private property owners over whose property the ROW passes, and members of the general public wishing to cross the ROW to access their own land or public land. Multiple uses of similar easements, including the right of access, is endorsed by the U.S. Department of Transportation.

What about my lilac bushes?

An “easement,” or in the area of transportation a “right of way,” is not ownership of the property over which it travels but is the mere right of the holder of the easement to use the property of another for limited purposes, as was the case in the 1914 act. The purposes of “railroad, telephone and telegraph” allow for other uses in public areas. The essential mark of ownership is the right to exclude others. Unlike the 1914 easement, the exclusive use easement is akin to ownership of the ROW -- an unfortunate and troublesome departure from the mere right of use. For example, the right of exclusion may lead to trespass charges and removal of other useful activities such as gardens that in no way actually affect railroad operations.

In reliance on this enhancement of property right, the railroad board of directors is instituting what it calls the “Residential ROW Use Permit” program. RRUP, a policy of the railroad board of directors, is beginning in Anchorage , then throughout the entire Railbelt, to be followed by a similar “commercial” program. RRUP is a system of charging property owners for using their own property. The program is unprecedented, and is illegal, a matter not seeming to affect the board even a bit. In short, the railroad wants to own it all: its rights and your rights. Ownership is the objective.

The railroad bases the need for RRUP and complete ownership upon unsubstantiated fears of safety hazards -- apparently, in the case of my house, a certain garden and lilac bushes present without a problem for 30 years.

The railroad claims that revenue generation is not a consideration in this program. In fact, according to the railroad, RRUP will lose money. Regardless of motivation, a permit and the payment of a fee will not improve safety any more than it would raise positive revenue.

Whether a private property owner near the track or a member of the public, you are now affected by the change being made by the railroad, BLM and the Interior Department ... or you will be in the future.

Oversight? Representation? Recourse?

The state of Alaska and big business are represented on the board. Not represented is the public, and this is a major part of the problem. This should be changed. Public input would enhance accountability and give voice to those whose property and access rights are trampled on by the railroad. Legislation should provide for such public accountability but does not.

Other than oversight by the governor, the board of directors has none, certainly not from the Legislature, which seems to be powerless in these and other railroad matters. The railroad and the board are not required to follow normal administrative procedures. The resulting lack of oversight and guidance shows up in long-term lack of financial instability, and the creation of irrational policies, such as those discussed here.

It has been suggested by some in the Parnell administration that the public should sue the Alaska Railroad, BLM, the Department of Interior or some others to resolve these issues. This simply passes the buck to another branch of the government: the court system, not the best forum for resolving public policy issues but inherently convenient. Litigation places the burden on a few: those immediately affected today, leaving out those affected tomorrow. These few are not equipped financially to take on the railroad, the state and perhaps the Department of Justice under ARTA.

The shortfall in common sense obvious in these policies is not entirely a matter of legality or lack thereof. While the change being secretly made by bureaucrats without public guidance is an illegal incursion of private and public rights, there is much more to this matter, which should disturb all of us.

Common sense, not lawsuits

This situation arises from lack of public representation on the railroad board of directors, is aggravated by the failure of that same board to implement sound decisions and policies, is compounded by lack of current administrative leadership and, frankly, legislative oversight of all. This invites public scrutiny and changes in the law allowing public input through board changes.

Rather than lawsuits, the administration should solve the problem through the use of common sense. The concept of conferring railroad “land baron” status on railroads was abandoned shortly after the U.S. Civil War. Just because the railroad wants new, enhanced rights at the expense of all of us does not make their wish either legal or good public policy. The railroad should accept from the federal government only the rights owned by that entity, the limited ROW, which allows other users. The federal government owned limited rights before ARTA, and only those should be transferred under ARTA.

Who is in a position to correct this assault on private property and public access rights? The answer is the governor. The governor’s staff has responded that he is not involved with disputes between private persons and private entities, referring to the railroad. Really! The railroad is a statutory (AS 42.40.010) “instrumentality” of the state of Alaska within the Department of Commerce, part of the executive branch run by the governor. The governor appoints all members of the board of directors who are setting these policies. The governor should protect private property interests and public access to public lands, especially given his announced policy as to both. Please communicate your concerns to the governor.

John Pletcher is an attorney who lives in Anchorage.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.