By ALEX GIMARC
My December AKRR column made the case that the Alaska Railroad Corporation was an intentional bad actor, a predatory neighbor to property owners that AKRR has a right of way easement across their property. Today’s column will explore predatory actions by this state corporation that has gone feral over the years and propose a path to solution.
CASH COW
As a reminder, a railroad right of way across property only exists to ensure safe operation of the railroad. But since Ted Stevens passed in 2010, AKRR has adopted an increasingly aggressive and confrontational stance, turning what was originally a safe operation right-of-way into a lawfare driven taking of property from property owners along its tracks without compensation. This is occurring bit by bit. Since 2013, it has turned its right-of-way into a cash cow, charging increasingly exorbitant fees to property owners and utilities for access to the right of way.
They also are using their exclusive right-of-way claim to prohibit property owners who own land on both sides of the tracks from accessing their land across the tracks. An operational ROW for a railroad was never intended by congress to become a revenue stream for a railroad.
Property owners are left with three options. They can take AKRR to court. The problem with this is that the opening bid of a lawsuit against an AKRR action is a cool $100,000, while AKRR funds their lawsuits with public money as a state corporation. Property owners can simply lie down and take the abuse, something rape victims were told to do in the bad old days.
Or they can sell their property and end the nightmare of endlessly increasing fees, not unlike the time share industry.
The third option is increasingly difficult because AKRR managed to garbage up titles of property along the AKRR to the point where ownership of the property and titles are today unclear, making them all but impossible to transfer.
CLOUD ON TITLE
A short digression into the arcane world of patents and titles is in order. Property ownership along AKRR is defined by patents, otherwise known as titles. These were defined for homesteaders in the 1920s before AKRR went into operation, through the 1950s, after the feds sold the land. These patents simply reserved a ROW, an easement over the private property owner’s land for “railroad, telegraph and telephone.” These easements required homesteaders, their heirs and purchasers of the land to allow unimpeded rail operations through their properties. There are also native claims that do the same thing.
One of the fallouts of the sale of AKRR to the State was a survey of property along the tracks, in an attempt to determine who owned what. The feds erroneously issued Patents (title) for the easement to AKRR in 2006, effectively creating a second patent on top of the original ones, not unlike the feds selling the same piece of property a second time. The AKRR graciously accepted the gift (who doesn’t like free land?) without getting approval from any legislative body.
The problem is that the 2006 patents were never reconciled with the previous titles and do not show up in a Alaska Department of Natural Resources title search. DNR simply overlaid the two maps, instantly creating what is called a cloud upon title, as it is now unclear who owns what. No legislature nor congress was involved in the gift of this property to AKRR. No legislature defined the new property rights. Worse, DNR didn’t bother to notify any previous property owner of the newly created question on ownership of their property.
The Department of Natural Resources finally notified the title companies of the two different maps and problems with titles in a Jun 15, 2020 memo:
But they pointedly did not notify individual property owners of their newly created problem which they blamed on indexing (two different systems of carrying the data that didn’t talk to one another).
AKRR has chosen to reconcile the differences via litigation, with the first target being the Flying Crown Homeowner’s Association here in Anchorage starting in 2020. From here it looks like they believe they can litigate property rights in federal court, set a precedent, and steamroll everyone else with property along the tracks, essentially property theft via lawsuit. Gov. Mike Dunleavy got involved with a letter to Judy Petry, Vice Chair of the AKRR Board of Directors Aug 2, 2021, asking them to cease and desist, settle lawsuit. To date, he has been ignored.
FISH CEEK TRAIL AND THE LONG TRAIL
All of this leads to today, where AKRR believes they have exclusive rights to their right of way across privately held property and at least one wrongly decided Ninth Circuit opinion last summer supporting that notion. They are now in the process of inviting third parties onto private property to use their right of way here in Anchorage. The proposed Fish Creek Trail is the first 3rd party invited. The Long Trail is the first of what promises to be many of these invitees.
Why invite them? Likely to tap into the free federal money supporting the Long Trail, once again turning their ROW into a cash cow, stealing it from existing property owners. Their problem is that both state law and the Alaska Supreme Court prohibit any use of rights of way in any way other than the terms of the original easement. The AKRR easement reserved in the original patents is for AKRR use only.
AKRR, the State of Alaska and the feds simply do not have the unilateral right to put another easement on their existing easement where that easement runs over private property without an act of either the legislature or congress taking the land. These acts do not exist. Of course, this is why they are going to do their level best to bounce expected lawsuits out of state courts into federal court and their new BFFs on the Ninth Circuit who are expected to rule in their favor.
A FERAL BOARD
Not only is the AKRR unable to get along with their neighbors, over the years they have demonstrated that they can’t even get along with one another. Take a look at Reeves LLC v Godspeed Properties LLC, (Alaska Supreme Court No. S-17884/17904), decided Sept 16, 2022, in which board member John Reeves sued a company partly owned by fellow board member John Binkley over easements.
The Alaska Supreme Court held that an easement holder cannot make changes to the easement that go beyond the express purposes of the easement. They went further, noting that the property owner can use the easement in any manner and purpose which does not unreasonably interfere with the easement holder’s rights.
In this, we have two board members arguing what you can do with an easement. The court tells them that it can be used only for what was agreed upon in the original easement. Contrast that with what AKRR is telling property owners today, that the railroad can do whatever it wants on its easement. If board members are suing one another over rights-of-way and easements, how can we possibly expect them to protect or defend property rights of property owners along the rail lines?
SOLUTIONS
One of the first things necessary is to replace current Board Members with those who would rein in the litigation machine AKRR turned itself into. It looks like Gov. Dunleavy is well on his way to do this, with the only board member, John Binkley (2007), being on the board before 2019. That new board would then need to start the process of removing members of the AKRR executive team who believe they are in the “lawfare” business, abusing lawsuits to grow their cash flow. I would also strongly suggest that every single board member be retroactively term limited.
The second thing would be for both the legislature and congress to turn the federal money spigot for AKRR completely off until we see a change in mindset. If it takes actual legislation to make this happen, that legislation should be written and passed. This action would be much more constructive than endless prattling on about renewables and decarbonization. Note that this step means all efforts to fund any sort of track extension be immediately halted as an attention getting step.
Final action would be to implement actions requested by Governor Dunleavy in his Aug 2, 2021 letter.
CONCLUSION
The congressional delegation, particularly Sen. Ted Stevens and Congressman Don Young spent a lot of time kicking AKRR back into play. Sadly, upon their passing, AKRR got itself into the lawfare business, using the courts to grab private property they wouldn’t have dared to ask any legislature or congress for.
This is not an accident. It is intentional, and in doing so, they have become feral. They need to be stopped.
Alex Gimarc lives in Anchorage since retiring from the military in 1997. His interests include science and technology, environment, energy, economics, military affairs, fishing and disabilities policies. His weekly column “Interesting Items” is a summary of news stories with substantive Alaska-themed topics. He was a small business owner and Information Technology professional.
