John Haxby: Alaska Railroad is neither feral or fair

29
1565

By JOHN HAXBY

I’ll take issue with John Shively’s characterization of Alex Gimarc’s column as a hit piece.  

The Alaska Railroad is acting as though they are property owners who can do as they please, simply by being one party to two party right of way (otherwise known as an easement).

Mr. Shively has either been misled, or mischaracterizes what the government sold, and what the Alaska Railroad got. The federal government did not introduce private property interests into the railroad right of way, the federal government sold the land, subject to, the railroad right of way.  

What this means, is that the adjacent property owner owns the land to the centerline of the railroad tracks, and the Alaska Railroad has an easement on top of private land (Ninth Circuit Flying Crown). If the railroad stops railroad operations, the right of way, goes away (Brandt SCOTUS 2014).

It’s disingenuous and arrogant to represent that the Alaska Railroad was granted an easement 100 years ago without any specific purpose, and now the railroad can define what the easement is for, in its sole discretion. There is no other easement in existence like this in the United States, where the easement holder gets to determine what happens inside an easement, irrespective of the express written purpose between the parties.

The right of way was spelled out clearly in the original land patents (titles issued by the government) “and there is also reserved to the United States a right of way for the construction of railroads, telegraph and telephone lines in accordance with the Act of March 12, 1914 (38 Stat., 305).”  

While the recent Ninth Circuit decision may have provided the Alaska Railroad with an “exclusive easement”, the court noted the easement passed over Flying Crown property, and exclusivity was granted for safety reasons, in the court’s opinion.  Like Mr. Shively, I looked up the definition of “exclusive easement,” I came up with a thousand different sources, all stating the same thing:  An exclusive easement grants the holder the sole right to use the land for a specific purpose. Mr. Shively evidently believes that includes any purpose.    

The Alaska Railroad easement, granted in accordance with the latest railroad easement law at the time, passed in 1875. In footnote 4 of U.S. v. Union Pacific heard by the U.S. Supreme Court in 1957, the court noted that during congressional testimony on the 1875 Act, that Congressman Hawley said, “It simply and only gives the right of way. It merely grants to such railroad companies as may be chartered the right to lay their tracks and run their trains over public lands; it does nothing more.”  

In the Brandt case on page 11, The U.S. Supreme Court noted that “only an easement for railroad purposes was granted.”  Further on page 17 of the Brandt case, the court noted that “More than 70 years ago, the Government argued before this court that a right of way granted under the 1875 (Railroad) Act was a simple easement.  

The Court was persuaded and so ruled.  Now the Government argues that such a right is tantamount to a limited fee with an implied reversionary interest.  We decline to endorse such a stark change in position………..”  

Those court decisions seem a far cry from Mr. Shively’s position that “it (Alaska Railroad) controls the activities in that easement thus allowing it to charge for uses that are not directly tied to rail operations.”

Easements follow the title of the land. Changes to an easement cannot be made unilaterally by one party or another, or even new government laws created after the land was sold by the government. Rights are determined by the plain language of the easement itself.  

In the case of the two directors mentioned by Mr. Shively, namely Mr. Reeves suing Mr. Binkley, in 2022 the State of Alaska Supreme Court stated clearly that “when an easement holder seeks to make changes to the land, the easement holder cannot go beyond the express purpose and parameters of the easement. Therefore, the easement holder-not the servient estate owner-was bound by the specific parameters of the easement.” That doesn’t seem to square up with Mr. Shively’s understanding of their easement.  

What express purpose does “construction of railroads, telegraph and telephone lines” really mean? Is it as Mr. Shively contends that the Alaska Railroad “controls the activities in that easement thus allowing it to charge for uses that are not directly tied to rail operations and it can determine if a use interferes with its rights even if the entity is not the owner of the land involved.”?  

Does that mean any third-party the Alaska Railroad determines gets to use the Alaska Railroad right of way, and they can charge for it? As a most absurd example, then, the Alaska Railroad could even permit and charge a third-party daycare center to operate in the Alaska Railroad easement in someone’s back yard, where that easement may partially be located but unused by the AKRR for railroad purposes, and the underlying land owner would not be able to stop the Alaska Railroad.

Let that sink in. Does that sound fair or neighborly? Maybe in California.

In a 2010 letter from then-Alaska Railroad Chairman John Binkley to Bonnie Wolstad, Mr. Binkley stated, “Unless and until the right-of-way ceases to be used by the State for transportation, communication, or transmission purposes (which is broader than railroad purposes) …….” it would appear Mr. Binkley clearly understood at that time that a railroad right of way was for “railroad purposes” and transportation, communication or transmission purposes was much broader than that. Mr. Binkley was right then, and it still applies today.

The generally accepted terminology for railroad purposes, has to do with railroad operations, which even the 9th Circuit Court of Appeals has partially defined in other railroad cases (specifically Barihona in 2018). In that case the Ninth Circuit listed tracks, rail ties, power lines, communication lines, fuel storage, freight warehouses, gas station and storage tank, in other words uses which are incidental to railroad operations.  As long as the railroad used even a little bit of the proposed use for railroad purposes which they authorized a third-party to perform, the court considered it a railroad use.  

Changes to a right-of-way (easement) requires the agreement and written consent of the underlying property owner, and the easement holder.  Unilateral changes to an easement, by later U.S. laws, State laws, or city laws, or simply by occupation constitute a taking under the 5th amendment to the constitution.  

The Alaska Railroad has transmogrified railroad purpose language of “railroad, telegraph and telephone” stated in the original patents (vested legal title), to Mr. Shively’s definition of “allowing it (Alaska Railroad) to charge for uses that are not directly tied to rail operations and it (Alaska Railroad) can determine if a use interferes with its rights.”  

Well, Mr. Shively, what about the rights of the underlying and adjacent property owners? Mr. Shively’s definition conflicts with the express purpose of the easement language, and the current board member and former chairman John Binkley’s 2010 letter, and the Supreme Court of the United States, and the Ninth Circuit, and the Supreme Court of Alaska in Mr. Binkley’s case.  Too many “ands” to be obvious, I guess.

Mr. Gimarc mentioned Fish Creek Trail and the Long Trail as future third-parties trying to slip into the Alaska Railroad easement as a permitted use.  Neither of these uses have a railroad purpose (nor does a daycare), yet the Alaska Railroad thinks they can permit them to operate in the easement.  Bicycle trails in railroad easements have been litigated in many courts in the lower 48. Bicycle trails have been determined to be complete changes to the express easement language.  

In one case, Toews v. U.S. in 2004, the court stated “It is elementary law that if the Government uses (or authorizes the use of-a point to be considered later) an existing railroad easement for purposes and in a manner not allowed by the grant of the easement, the Government has taken the landowner’s property for the new use. The consent of the railroad to the new use does not change the equation-the railroad cannot give what it does not have.”  

Further the court went on to state “And it appears beyond cavil that use of these easements for recreational trail-for walking, hiking, biking……………is not the same use made by a railroad, involving tracks, depots, and the running of trains. The different uses create different burdens.”  

Mr. Shively’s contention that Alaska Railroad “controls the activities in that easement thus allowing it to charge for uses that are not directly tied to rail operations…” sounds a lot like “or authorizes the use-of-a point to be considered later” to me. 

If it’s Mr. Shively and the Alaska Railroad’s contention, they can do anything they want in the easement they hold, simply because it’s an exclusive easement, it will throw easement law in Alaska into complete chaos.  Imagine every utility company that has an exclusive easement, like Chugach Electric, Enstar, AWWU, ACS, and GCI licking their chops to rent out their easements to any Tom, Dick, and Harry they wish, even a daycare.  

Respectfully, I think Mr. Shively, the board of the Alaska Railroad, and their management, should reconsider their position.  Stating they have respect for their neighbors?  I am their neighbor, and I say, not so much.

The Alaska Railroad management, and now apparently the board of directors, has transmogrified a simple easement, into “We can do any damn thing we want, and you can’t stop us.”  

So, let’s see if the Alaska Railroad as Mr. Shively maintains, are truly fair and have respect for their neighbors.  Here’s the challenge-allow our state courts to determine the nature of the Alaska Railroad easement, and rights between the Alaska Railroad and adjacent private property owners, with a jury of our Alaskan peers.  

This has nothing to do with other railroads in other states, this has to do with the behavior of our railroad, operating in our state , with an easement that was defined with an express purpose close to 150 years ago, in lands sold by the federal government to our citizens over the last 100+ years.  

Litigating through California, which seems hellbent on destroying the two once beautiful cities of Los Angeles and San Francisco by plunging them into lawlessness and chaos, doesn’t seem fair, or neighborly.

John E. Haxby is an Alaska resident for 50 years, engineer, land developer, investor, and AKRR neighbor.

29 COMMENTS

  1. So who really runs the Railroad? I don’t think it’s John Shively. Look at the composition of the Board and you can find the answer.

    • Follow the money. Which board member makes the most money, personally, off the state’s railroad? It’s the guy who runs businesses at each end of the rails and counts railroad passengers as his own customers. That’s who runs the Railroad. John Shively’s buddy.

  2. “……..only an easement for railroad purposes was granted.”…….”
    The ARR has been leasing lands since the beginning for all kinds of purposes. The entire Ship Creek basin is/was railroad land. Some leaseholders from the 1920’s and 1930’s signed 99 year leases, which turned out to be bonanzas after WWII started, and especially after the pipeline years. The most tantalizing allure to Alaska at transfer wasn’t the worn out rolling stock and in-the-red operations. It was the land, the value of that land, and the income from that land. The ARR has had a real estate office all along managing their lands.
    I’m not sure what all this brouhaha is all about. If the Ninth Circuit has ruled against the litigants, why not simply carry forth to SCOTUS? Have they refused to review? Is all this simply a tantrum? Where is this going? Will there be another several segments of this battle to come on the soap box because the jury box is closed?

    • Writs of Quo Warrento are not closed. Jurisdiction truly is subject matter jurisdiction of the Municipality of Anchorage as supervised by the State of Alaska Design, Engineering Right of Way Section. Secondly a Writ of Mandamus to follow the federal suggestion of CFR 49. Why can’t you see this?

  3. tHe US Federal Homestead Act issued patents with ALL attached rights to the property to the residential or mineral use. That Homestead Ct had a process due. The BLM printed legal notices of patents and gave complainers a certain amount of time to state their case they stating so petulantly now. did DIT say “no”? No! and the railroad didn’t say a blurb. They were negligent at a time when they could have complained. They missed their golden opportunity to stop residential uses. they didn’t. they job now is to be gentlemen and respect and accommodate those rights. I believe it is not unreasonable to have them add to their cost of doing business the use of railroad operations to date. ANd treble damages for attempting to defraud the court, the public, and property owners. The city should put speed limits in certain ecological areas and hire railroad inspectors and a couple of hydraulogists.

  4. No one runs the railroad but the railroad. Everyone must answer to them. Other state jurisdictions exercise state’s rights and regulate all industries not just trucking.

  5. these sorts of questions come up when airports need to be improved or when docks get improved. tHe dock doesn’t say we are the king. they might say it but they are not the king. there are professional practices of surveying. the railroad doesn’t have subject matter over those either. It is a felony isn’t it to mess with us survey caps and change them in the qt? also taking original survey caps off of private property without notifying the property owner? also it is another right if the legally noticed property owner to attend any “post US survey” resurvey survey so this overlayment of secret crap on the title can’t happen. that was a criminal offense and someone who ever ordered it needs to go to prison.

  6. one of the parameters of “takings” is that a taking is limited to only what is needed. not robbing more private wealth for playgrounds. that the state is in on this planned robbery is not surprising given how corrupt these creeps want to be. king Solomon said in a thousand men I have found one good one. I doubt that ratio applies these days in Alaskan government agencies. Thank God for for Judgment Day approaching.

  7. Taking a (property) rights for free, commanding that the taken right must become licensed, transmuted into a crime by a supercitizen (a nonliving man) is unconstitutional, is repugnant to the US Constitution. Every transfer must have a written deed. If you can’t find a deed the transfer of title didn’t happen accordng to British Common Law statute of frauds. Property owners did not deed their property rights in deed writings (process due that activity) back to Congress to deliver property rights to the super, not equal corporate citizen ARRC. ARTA had a deal in it where if the pitiful railroad has any legal problems at all with its transfer title (what is described in this series is such a problem) Senator Stevens et al put in a clause that the BLM had to defend the pitiful railroad from the cruel homeowners. That ended after 25 years which is why the BLM wasn’t involved much.

  8. The purpose of government is to secure and defend the rights of the people. All of them. BLM changed its indexing system to hide all of these errors too. Attempting willfully to hide these egregious acts while the formerly slightly neutral DNR conspired to hide this serious act by obfuscating info from diligent property owners who have yet to receive proper notice of ARRC improper attempt at taking illegally and slandering merchantable title willfully in secret government collaborations hoodwink rather than defending people’s rights. Disgusting and not worthy of such a large contingent of public screw up part time employees. How do they help anything.

  9. “……Is all this simply a tantrum?…….”
    Well, I no sooner ask than comes the answer. ^^^^^^^^
    If the 9th Circuit has ruled, and either SCOTUS refuses to review or the litigants are tired of enriching the lawyers, this issue is all over except the crying, and that’s what this column series is all about.
    If there’s anything in real estate law that seems “unfair”, it’s “easements”. Been there, done that……but it’s done. Once the ruling came, AFAIC, that finished the disagreements. No more disagreements, unless you’re the type who insists that men get pregnant. That’s what courts are for.
    Not so, believe these die hards. Since the ARR is now a “state owned corporation”, and Alaskans are so accustomed to manipulating state and local government to their individual desires (to the detriment of others), they’re setting us up for another legal battlefield with the opening salvo of “poor us” propaganda. In fact, that seems to be a recurring theme nationwide with all the BS of “a national divorce”.
    Pffffft. I’m not even going to wish y’all good luck. Just run along and pay your lawyers…….even though you ought to be run out of town on a rail…………

    • Dig a little deeper. The author of this article owns property along the AKRR, and using the soapbox to “re-rail” the Fish Creek trail extension. This article as just another case of N.I.M.B.Y.

      • No ability to address anything the writer is bringing up and you go VFR-direct to personal attacks. Is that the best you guys can do? Apparently so. Thanks for playing. Cheers –

      • “…….using the soapbox to “re-rail” the Fish Creek trail extension. This article as just another case of N.I.M.B.Y.”
        Yup. In a previous column hit piece like this, I posted a link to a Fish Creek Trail extension story elsewhere involving a wealthy Anchorage family and their exclusive property, and the ARRC refusing to lease the proposed extension land to them for the sole purpose of blocking the trail extension. In a way, I can’t blame them for trying to keep the public out, especially since city government is doing all it can to exacerbate the homeless crisis, and public trails attract illegal camping. On the other hand, wealthy property owners painting an inaccurate picture and creating a crisis for their own gain is beyond outrageous. This whole “issue” stinks to high Heaven.

      • The bad business practices of this actually private corporation are reprehensible even by industry behavior. The due process for stealing stealing property rights from residential owners deserves no social defense. They hate the US Constitution and their fellow Americans. They have been dishonest.

    • Folks that pay good money to ‘see the last frontier’ have nothing to do with this. In fact, it’s resolution is still in the wash. Way too much doing something just for ‘show’ going on i.e. ‘mooning’ tourist trains, riding bicycles naked on Portland OR streets in the summertime, and other outrageous over-reaction stunts. Still. (At least ARR railways have interesting natural sights to view, and not the backyards of garbage dumps!)

  10. The Lease agreement part is interesting because everyone I know who has business in the Ship Creek area keeps saying the same thing of “ARR is pushing us out by increasing the rate!”

    I always wondered why ARR would do such a thing, but then I noticed that many of these properties had decades-long deals for leases and rent that were wildly favorable for that small business. Still, it makes me sad that ARR would rather have empty lots unused with no paying customers than just renew older deals clients got.

    • Those early 99 year leases made a few people stinking rich. They were literally paying pennies for valuable commercial/industrial land. When they cry, ignore them.

  11. what gives with litany if lefties. Fraud vitiates everything (Throckmorton). Breach of contract to allow shifty secretive Arrc to receive property rights wo process, rights, or jurisdiction. judge erred. should write Writ of Mandamus to stopp ARRC from this business behavior. Writ of Mandamus.

  12. If anyone cares to bother, there exist federal laws on the books for a couple hundred years that GUARANTEE railroad right of ways and they are NOT easements. They are inviolate properties for the use of, and complete control by, the railroads. The federal government didn’t “sell” land to any of the whiners that are attempting to pull a Campbell Lake Coupe on the railroad. The current owners bought homesteaded land and now are yelling at the top of their lungs that they own the land that is railraod tight of way. And what a stupid ascertian to promote the idiocy that the federal government sold any land “up to the center of the tracks”. Umbelievable ignorance still exists. The truth is that there exist federal railroad laws that would allow for a railroad from Fairbanks to Nome with little effort but those that own trucks find this threatenting, so western Alaska remains primarily a welfare state while the self entitlled attempt to derail the only economical surface transportation that exists.

  13. the permeability of fights of way was what was accomplished by the federal railroad licensing act exactly to prevent this type of railroad overreaching practices which deter development. The were curtailed from this behavior exactly by this license they received to actually operate.

  14. Permeability of rights away. the BLM judges were not the bad operators here. THe Alaska railroad was told in English by BLM Judges that they did not have anything but a permeable public right of way in which to operate. No other words in English were noticed. Any public good can be used. Alaska thought it was “good” for people to hunt because it was a public good for the people to gather and hunt therefore the hunting openings stated from Territorial days opened hunting in the corridors. There is a reasonability that reasonable business men must display whather they are wearing suits or overalls in a civil society.

Comments are closed.