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Alaska Railroad isn't telling a straight story on rights of way

John Pletcher
OPINION: The Alaska Railroad tries to dictate terms well beyond its needs or authority on the land of its right of way. Bob Hallinen

My commentary (ADN, Aug. 14) on the Alaska Railroad easement suggests a common sense approach allowing other private and public uses and curtailment of the Alaska Railroad’s assault on both private property and public access. Linda Leary's commentary in response (ADN, Thursday) confirms worst fears: an uncompromising position excluding other private and public users.

Sen. Ted Stevens: In quoting Sen. Stevens, Leary confuses private property rights with access to public lands. The “unsourced” comments of Stevens were apparently directed at limited public areas in which exclusive-use easements are allowed under the transfer act. One is Denali Park. In the 1982 transfer act hearings involving the transfer, the senator voiced his strong objection to taking private property.

Access: The Stevens comments concerning exclusive use do not apply “generally” to the easement, even the portions across public lands. They do not apply, at all, to private property. Instead, Gov. Jay Hammond expressed the “consensus” view that the non-exclusive 1914 easement existing for decades is best, allowing public area multiple uses. Stevens supported this idea, as does the U.S. Department of Transportation. See: railswithtrails.com.

Exclusivity: Contrary to the railroad’s position, private owners and public users do not assert unrestricted use for themselves, thus excluding the railroad, which certainly has the right to operate safely in the right of way. But other users that do not impair safety should be able to make uses that do not counter that safe activity. It is actually the law, and makes more sense than the railroad’s position.

The railroad is free to criticize other uses of the right of way at any time, and has recourse in the courts, like any other easement holder. These issues should not be resolved unilaterally by the railroad, nor should one arbitrary standard of total exclusion apply universally.

Ownership: The railroad’s position as to ownership of land under the easement is self-serving and incorrect. The 1985 conveyance was done to allow the state to operate the railroad immediately. Final transfer is a continuing process. The extent of finality may vary from place to place.

The plat of private lots is irrelevant. Surveyors do not determine title by making a solid rather than dotted plat line. Title to property underlying an easement goes along with the conveyance of a platted lot “abutting” the easement if both came from a common owner -- the homesteader. Non-believers should Google “centerline presumption.” Details are on www.alaskarailroadeasement.info.

Taxes: Leary suggests that nonpayment of property taxes on the easement demonstrates non-ownership. The municipality method of taxation does not determine ownership. The Municipality of Anchorage presents a tax bill, which is paid. How that is determined is a mystery for many of us, along with how the funds are spent. Leary claims “fee simple” ownership of the easement for the railroad since 1985. But, according to online tax records, the railroad does not appear to pay property tax on their alleged “fee simple” property either. This is a “red herring” argument, intended to distract the public from the fact that the railroad is taking away property rights of both private owners and the public in general. How the municipality deals with the respective interests in the easements, if at all, is irrelevant.

Safety: The rate of rail accidents is actually low compared to roads, aircraft and other transportation modes. But most users have common sense and do not unsafely interfere with the railroad operations. Accidents are not caused by lawns. During the last legislative session I proposed a railroad non-liability statute as to persons and property in the easement to resolve this matter. The Legislature should pass this.

Permit fees: Not that the railroad has the right to charge anyone for using the “residual” areas of the easement, but applying the 25 cents per square foot annual rate to the nearly 500-mile, 200-foot wide track easement would raise large sums of money. If some persons are charged, should not all be charged? Will the railroad charge the state and federal government for such easement uses as moose, bears and habitat? Or, how about the municipality for the Oceanview Park easement path and numerous street crossings? Is the railroad a residential bridge troll?

Public process: Leary praises the railroad in how it established the residential permit program, suggesting public input way beyond what really occurred. The “process" was an ad hoc creation of the board without public input or real participation. The creation of the actual notice and hearing process was established secretly. A small number of directly affected folks did attend, but only to hear what was going to happen to them. Deliberations of the board are private. Attendees of the June 2012 meeting had absolutely no vote in the actual decisions, and were actually asked to leave the meeting so that the board could discuss and decide. No other state agency is allowed to do this. Ordinary people are excluded from the discussions and decisions just like the easement itself. “Ordinary" people are also excluded from board membership for that matter. No other state agency is allowed to operate like this.

Public access: Important to the public is the effect of allowing the railroad to totally control access to or across the right of way to public and private lands. This situation has dire consequences if the railroad is not stopped. 

I am not buying the safety argument.

We, both the public and private public and private ”we,” may be excluded from access simply because the railroad can do it through the hammer of “exclusive use.” 

The essential question is the extent to which the public is willing to allow the railroad to dictate its own agenda to the exclusion of all others.

Billy Goats Gruff, unite! If you cross the tracks, you are involved. Your community council should take up the matter. I am available for a presentation if you are interested.

John Pletcher is an Anchorage attorney.

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, e-mail commentary(at)alaskadispatch.com