The Alaska Railroad has the exclusive right to use its right of way

Linda Leary
OPINION: Alaska Railroad's residential ROW use policy is driven by the railroad's statutory duty to preserve the integrity of the ROW, to protect public and employee safety, and to operate trains efficiently. Contrary to one recent opinion, the policy does not deprive anyone of any property rights. BILL ROTH / Anchorage Daily News

A recent opinion piece by John Pletcher raised questions about the Alaska Railroad right-of-way. Mr. Pletcher suggests the Alaska Railroad Corp. -- the public corporation that owns and operates the state’s railroad -- has overstepped its authority over the ROW and is attempting to undermine private property rights. That is not the case, and the railroad appreciates this opportunity to set the record straight.

Pletcher’s Anchorage residence abuts the ROW, and for years he has used part of it to erect a storage shed and maintain lawn and shrubbery. His is among dozens of residential uses that have encroached into the ROW over time, some of which pose potential safety risks. After more than two years of public outreach and input, ARRC adopted a new Residential ROW Use Policy  in late 2013 to better monitor and equitably resolve such uses through a permit process. Mr. Pletcher asserts he is not subject to the policy because he and other adjoining property owners “own” the land on which the tracks sit and have an unrestricted “right” to use the ROW for any purpose that does not interfere with railroad operations. We disagree.

The federal government owned fee simple title to the vast majority of the corridor -- including the ROW land abutting Pletcher’s property -- when it built the railroad (1914-1923). Fee simple ownership transferred to the state in 1985 when it purchased the railroad. This explains why a typical plat for a subdivision adjacent to the ROW (for example, the plat for Deniwood Subdivision where Pletcher lives) shows residents’ properties extending only to, not into, the ROW boundary. Moreover, the plats for the ROW itself show the ROW does not overlap with the lots in adjoining subdivisions. Accordingly, state land records confirm that adjoining property owners do not own any interest in the ROW. This conclusion is consistent with the fact that Pletcher and his neighbors do not pay property taxes on ROW land abutting their property.

In the few areas where the railroad does not own fee simple title to the ROW, it still has the exclusive right to use the ROW. In 1982, Congress passed the Alaska Railroad Transfer Act transferring the railroad to the state. The act guarantees the transfer of fee simple ownership along most of the ROW and at least an exclusive use easement in the few areas where the federal government did not own outright or where there were conflicting claims to the ROW. As U.S. Sen. Ted Stevens explained in Congressional hearings on the transfer act, “an exclusive use easement ... represents the minimal interest the state is to receive in the Alaska Railroad right-of-way ... In other areas, where the right-of-way crosses land owned in fee by the federal government, the full fee title to the right-of-way will be transferred to the state.” These provisions were and are essential to operating a safe and viable railroad.

Why railroads require exclusive control of ROWs

As is true for all railroads, the ROW is the railroad’s artery, where flows the “lifeblood” of train traffic and utility transmissions. Railroad ROWs also serve as vital safety buffer zones protecting the public and railroad employees, passengers and equipment. The basis for the exclusivity of a railroad ROW lies in the nature and risk of railroad operations. With mammoth and powerful equipment in an industrial setting, the railroad operating environment is inherently hazardous. Railroad employees have extensive railroad-related safety training and are made aware of train movements. Trespassers and adjoining property owners are not. As a result, trespassing along railroad ROWs results in about 500 deaths each year. At least eight such fatalities have occurred along the Alaska ROW since 1985. Opening the ROW to unrestricted use by adjoining landowners and the public, as Pletcher suggests, would inevitably increase these tragic incidents and pose an unacceptable liability for the railroad.

The ROW buffer also protects adjoining property owners in the event of a derailment. The safety value of a 100-foot buffer on each side of the tracks is easy to understand considering that most railcars measure 80 feet long. The ROW safety buffer also enhances the railroad’s economic viability by allowing trains to run safely at faster speeds.

Why did the railroad adopt the residential ROW use policy?

To put it in perspective: Homeowners might ask themselves, “Would I be OK with having no control over my neighbor’s use of my property?” Similarly, is it reasonable for local or state transportation agencies to ignore unauthorized private use of public roadway or runway corridors ... a shed on a highway shoulder or a swing set on an airport tarmac? Common sense says no.

Since control of the railroad was transferred to the state in 1985, it has operated it under the authority granted by the Alaska Railroad Corp. Act. The act requires the railroad to preserve the ROW for transportation, communication and transmission purposes, as key to Alaska’s economic growth and development.

Protecting the ROW against residential encroachment is not new. Decades ago the federal government was also compelled to control adjacent property owner uses that posed safety concerns and impaired the railroad’s use of the ROW. The federally-owned railroad began requiring lawn and garden permits and once the Alaska Railroad transferred to the state, the railroad continued to require permits for some residential uses. Admittedly, neither the federal railroad nor the state-owned corporation were consistent in these efforts. The residential policy  provides that consistency.

Beginning late in 2010, the railroad renewed efforts to preserve the ROW from unauthorized uses in a fair and consistent manner. Railroad staff and the board of directors developed a policy to address residential ROW uses with the help of residents themselves. The railroad engaged property owners during an extensive multi-year public outreach process. Private citizens participated on a railroad board subcommittee. Railroad employees went door-to-door, meeting with residential neighbors. Postcards and letters were mailed to keep folks along the corridor apprised of the process and opportunities to offer input. Dozens of residents commented on policy drafts during public meetings held in Anchorage, Wasilla and Fairbanks, and during board meetings where the policy was discussed.

The final policy reflects resident concerns. For example, early drafts proposed phasing out existing residential uses entirely, but the final policy provides for approved existing uses to continue under permit indefinitely if they are safe and consistent with the railroad's use of the right of way. Permits for existing uses require a reasonable annual fee of 25 cents per square foot per year or $250 minimum, to help cover railroad costs to perform inspections, and to issue and administer the permits. While we understand some residents are unhappy about paying for uses that they enjoyed for free for years, the policy permit program is equitable. Instead of burdening the traveling public and railroad customers with the cost and risk of private ROW use, the policy asks the private party who benefits from the use to bear at least some of the expense.

In conclusion, the Residential ROW Use Policy is not a moneymaker for the railroad. That was never the goal. Rather, the policy is driven by the railroad’s statutory duty to preserve the integrity of the ROW, to protect public and employee safety, and to operate trains efficiently. The policy does not deprive anyone of any property right. Rather, the policy carefully balances railroad safety and operational needs, addresses the concerns of our neighbors, and allows current residential ROW users to legitimize their use by obtaining a permit. ARRC deeply appreciates the efforts of many residential neighbors who participated in the policy development process. And, we thank those residents who have applied for permits under the policy.

For more information about the Residential ROW Use Policy and related legal issues or laws discussed visit www.alaskarailroad.com and click real estate services then ROW use legal issues.

Linda Leary is chair of the Alaska Railroad Corp. board of directors

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.