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.