John Shively: Alaska Railroad — feral or fair?

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Recently, in his second hit piece on the Alaska Railroad Corporation (ARRC), Alex Gimarc accused the corporation and its Board of Directors of being “feral.” Not being sure what Mr. Gimarc meant, I went to the online edition of the Merriam-Webster Dictionary and found the following definitions for “feral.”

1) Relating to, or suggestive of a wild beast;

2) not domesticated or cultivatedwild; 

3) having escaped from domestication and become wild.

Although I can only speak for myself, my parents might have agreed that in my youth I was not domesticated. Also, I suspect that there are those who might find me uncultivated. However, I don’t see what any of that has to do with my performance as a director of the Alaska Railroad Corporation. Ignoring my confusion about the use of the word “feral,” it is worthwhile discussing Mr. Gimarc’s complaints about the railroad.

The main issue is somewhat legally complex and involves the type of easement the Alaska Railroad holds for its railroad right-of-way. The right-of-way for the railroad was established by the federal government between 1914 and the driving of the golden spike in Nenana in 1923. The federal government owned and operated the Alaska Railroad from then until it was transferred to the State of Alaska in 1985.  

In the meantime, in some areas, the federal government issued homestead patents for lands in the vicinity of the railroad right-of-way, which introduced private property interests into the railroad right-of-way. Those homestead patents expressly made them subject to the existing railroad right-of-way. This interesting and complicated history provides context for understanding our interactions with neighboring property owners.

Most property owners are familiar with the type of easement generally reserved for utilities. In those easements, the utility has the right to place utility infrastructure on, over or under the landowner’s property, but, as long as the property owner does not interfere with that infrastructure, the owner is free to carry on other activities without the easement holder’s permission. This is the type of easement that many adjacent property owners believe the Railroad was granted.

The Alaska Railroad, on the other hand, believed it was transferred at least an exclusive easement when the Railroad was purchased by the state.  When a railroad entity has an exclusive easement, it 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. It is worth noting that many other railroads in the United States have this type of easement.

This issue began to fester in 2008 when the Railroad initiated regulations relating to the use of privately owned land interests within the Railroad’s easement. Without going into the history of the disagreement in detail, it was one of the first major issues I was made aware of when I was appointed to the Board of Directors in late 2019. Some property owners and their supporters met with me on a number of occasions to explain their position. Former Rep. Chuck Kopp was involved in many of these sessions, and I believe that they gave me a good understanding of their position that the Railroad’s easement rights were quite limited.

I also met with the ARRC management to get an understanding of their position that the Railroad was granted an exclusive easement with all the rights such an easement conveyed. Management explained that this position was consistent with the position historically maintained by the railroad.

Although Sen. Ted Stevens had left public office before this issue came to be fully developed, Congressman Don Young was well aware of it. At one point he and Sen. Lisa Murkowski suggested that the General Accounting Office review the issue, but later reconsidered that strategy as the GAO could not commit to a reasonable timeline to prepare a report. Twice in 2019 Congressman Young suggested the property owners accept the ARRC’s offer of a 20-year permit with no fee. That suggestion was not acceptable to the property owners. 

After listening to both sides and reviewing the history of the issue, I became convinced that the only way to resolve the issue was through litigation. However, I had no opinion as to which side would prevail in such litigation. I believed that the property owners had strong arguments and might prevail. 

In late 2019, the Flying Crown Homeowners Association, which permitted a small airstrip in South Anchorage, sent the ARRC a letter demanding it renounce its rights in a piece of property over which the ARRC has an easement. This action led to litigation in the federal court rather than the state courts because the issue is what kind of easement the federal government transferred to the state in 1985. The ARRC has prevailed in that case at both the Alaska District Court and in the 9th Circuit Court of Appeals in a 3 to 0 decision.

The Board did not take suing a homeowners’ association made up of Alaskan citizens lightly, but felt it was time to resolve this issue one way or the other. To that end, we agreed to pay all of Flying Crown’s legal fees for the litigation at the District Court level. It is also worth noting that during this process the ARR and the homeowners’ association reached a no-cost, long-term land use agreement for the Flying Crown taxiway and aircraft parking area. (In the case of residential adjoining land owners, we also have a no cost residential permit for existing uses such as lawns and gardens.)

Although I am not going to respond to every one of Mr. Gimarc’s accusations, I have a couple of other issues I would like to note. It is not relevant that two of the board members were involved in litigation with each other. My experience is that the past litigation has not interfered with either board member’s desire to carry out his fiduciary responsibilities as a board member.

Mr. Gimarc suggests that Gov. Dunleavy replace all the board members, as is clearly within a governor’s authority. However, it is worth noting that the Alaska Railroad Act adopted into law in 1985 requires that the board be made up as follows: the Commissioners of the Department of Commerce and Community Development and the Department of Transportation and Public Facilities; one person who is a union employee of the ARRC; a person with railroad management experience (currently held by an individual from outside Alaska who has extensive experience in short-line railroad management); and three public members. How this diverse group goes “feral” is a mystery to me.

Mr. Gimarc also alleges that the ARR charges exorbitant rates for leases. By law, we are required to charge the fair market value for any property we lease. We obtain a third-party independent appraisal to set that value. If a current lessee disagrees with that valuation, they can get their own 3rd party independent appraisal. If it is different, we work to come to an agreement on the valuation. If that still does not achieve agreement, there is an available arbitration process under our lease contracts. 

Lastly, it is important to note that the ARR is not without some fault in how it has handled the relationships with adjacent landowners. Some of these actions have exacerbated the tensions between us and our neighbors. With that in mind in 2022 the board set up an External Issues Review Committee which will allow individuals and organizations to go to a committee of the board (which also contains one non-board member) if they think they have been mistreated by management. It’s one more way to ensure that ARRC is responsive to local communities and businesses.

Alaska is a unique place, a fact that the railroad reflects in a number of ways. I believe I speak for my fellow board members when I say we are committed to a strong and resilient Alaska Railroad that operates with respect for our neighbors and for the long-term benefit of Alaska. 

John Shively is chairman of the Alaska Railroad Board of Directors.

35 COMMENTS

  1. Game. Set. Match to Mr. Shiveley. Sunlight is the best disinfectant, and he has shone it brightly. MRA is famous for unsubstantiated hit jobs (Dr. Zink, Congresswoman Peltola, Ms. Zalatel, and President Biden to name a few), but unfortunately in this case, they have set their sights on the wrong target.

    • Oh child…

      Let me fix this for you. What you alleged to be “unsubstantiated hit jobs” are what’s known as actual journalism.

      I’m not surprised you don’t recognize journalism. It hasn’t been routinely practiced for years, and you’re an ill informed, immature partisan.

      Go get some crayons and a coloring book. Adults are talking.

    • If Hans is on the side of Mr. Shiveley, then reality tells me that I should probably be against Mr. Shiveley here. Because radical leftist extremists like Hans are the filter that always catches the bad while letting the good slip through.

  2. I think the term feral as used by Mr. Gimarc accurately describes the behavior of the ARRC in attacking individual properties like a pack of wolves and aggressively devouring their property rights with their expanded notion of the railroad’s rights under the easement. The ARRC does this knowing full well that they have a huge economic advantage due to the railroad’s financial resources to fund litigation.

    • I found the part where he shines his halo and basically says “we follow the law”.

      We are a corrupt state with a corrupt judiciary and a “malleable” legislature.
      The “law” bends very conveniently up here.

  3. Railroads have always had exclusive right of ways that they have dominion over in every way, including their own enforcement people to protect that rightof way and their equipment. The homeowners living within the right of way were there second and the railroad was there first. This is a problem brought on with the modern idea that if someone doesn’t like the way things have always been, they start to tell lies until the media starts to repeat the lie. This is very much like the lie that was propagated that Campbell Lake was a public lake. It has NEVER been a public lake since the first owners of that property damned Campbell Creek and filled the lake. That is another case of government taking the side of a whining public to diregard the facts.

    • Until the monopoly busters in Congress broke up their gang and then private accessable wealth building broke up the monopolies once and for all because America would have failed had they not done so. How quickly Alaska has forgotten. Shame on ARRC.

    • Survey notes of private properties describe the property accesses and boundaries as “going thence 60 feet along the railroad” etc. It is how the BLM located and adjudicated the lawful claims for residential and mineral extraction claims. It is valid nation building and settlement building approved by Congress in the new state to accomplish getting land into the hands of the people A public good in a new state. The judges said in their adjudications. “must we remind the railroad all they have is a permeable, public right of way and not a private parcel”. The BLM judges (there were three in the IBLAs) meant what they signed.

    • Robert ,Please explain your detailed knowledge on easements / right of ways & patented Federal lands across America or Alaska dating back to the 1860’s ! I believe John Haxby’s follow up article sums it up nicely.

  4. I would tend to agree with John Shively, what the state giveth the ARRC, the state can also taketh away.
    My question to John Shively is since the Pebble Securities Fraud case settling for 6.4 million $, is he still chairman of the Pebble Limited Partnership Board? Or has pebble been dissolved/Liquidated/gone?

  5. Because the state of Alaska has not grown naturally as expected from statehood in 1959 private property ownership has not been “accepted” let alone secured and defended by elected public servants. Both Stevens and Young wanted to stay in DC to straighten this mess out i.e. conform Alaska to the US Constitution as well as apply principles of equity that are applied when the US Constitution fails as it has here in Alaska. The ferals roar with glee at the harms to private properties they stupidly accomplish and they then teach their ignorant offspring to defy the US Constitution to do the same. It is quite ghastly a period of Alaskan history that well meaning Alaskans did not see coming. Absent Stevens and Young the state will fail substantially before these ferals become teachable and value even their own constitutional rights. It is, therefore foolish to invest hard earned money in Alaska’s mentally unstable economic environment ruled by nearly illiterate people.

  6. Thanks for your essay, Mr. Shively. Maybe you can help shed more light on the situation.
    .
    Alaska Railroad, a heretofore benign steel and wood behemoth, awakens, Smaug-like, “believing” it has power to use peoples’ land as it chooses, to take money from people who don’t use their land in ways the railroad considers directly tied to rail operations?
    .
    Thing’s big enough to leave a mark where it bites and it seems like it wants to bite… that’s feral, brother.
    .
    “Believing”, not actually knowing, as in settled case law and legislation. Surely someone’s not making this up as they go along?
    .
    Can the state railroad exercise all the perquisites of an exclusive easement while the Takings Clause requires: “nor shall private property be taken for public use, without just compensation.”?
    .
    In joshblackman.com/blog/2014/03/10/in-rails-to-trails-case-solicitor-general-changes-course-from-position-taken-70-years-ago/, we see “More than 70 years ago, the Government argued before the Supreme Court that a right of way granted under the 1875 Act was a —simple— easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a —limited fee with an implied rever­sionary interest—. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are concerned.” (Leo Sheep Co., supra, at 687).
    .
    Reversionary interest? That’s the railroad’s right to take ownership of the private landowner’s land if certain conditions are met. All part of the “exclusive easement” process, no?
    .
    So the Supreme Court does not support the railroad’s “belief” that the exclusive-easement doctrine automatically takes precedence over anything private landowners can muster in their defense.
    .
    Did the feds legally abandon ownership, including rights-of-way, when they transferred the railroad to the state?
    .
    If so, what exactly happened which prevented rights-of-way ownership from reverting to private landowners as soon as the feds abandoned their claim? Did congress have to legislate the exclusive-easement process? If they didn’t, how did it happen?
    .
    If the railroad is firm in its intent to retain the perquisites of exclusive easement despite landowners’ opposition, it seems reasonable to ask whether the eminent-domain process might be an option with “just compensation” in cash or adjacent-land swaps.

    • ARTA was not silent regarding homestead claims that were approved but not yet transferred by deed awaiting final survey. A list of those particulars were to be provided along with native claims were ignored and ARRC could say they didn’t know about them though they saw them regularly bringing improvements to their locations.. They coexisted with homestead and mineral uses since the Public Land Orders for exclusive use of homestead claims and mineral site claims began.

  7. Shively solves problems by lumping land owners together. Yet he knows that: the rail road has mile by mile files on chronological ecologically different factors. Not every mile on the track has been sunk ten feet in the Turnagain mud by liquifaction caused by faster and heavier trains than the permitted, engineered, built in 1923 winter design in Portage aka Anchorage. He knows the land sunk in the 1964 earthquake and drainage is ruined further by commando operation of the ARRC as proved by progression of aerial photographs. You’d better hurry and get that evidence destroyed. They prove ARRC has behaved callously, arrogantly and in an unbusinesslike, unethical manner with malice and calculatingly with Alaskans who could have come to ethical agreements but for the low life disrespect the ARRC has for the public and their private interests. The railroad lies about actual required sight measurements saying they are not there when if they would get out and measure they would know that the FRA sightlines are there for stopped at grade crossing. As it is their proposed stopped at grade crossing “for the publics” puts the public out at railroad mile 66 with ten feet of water on both sides of the sunk track. Measured by added required ballast at that location. Real funny. We are not as stupid as you personally enjoy thinking we are. Your design was hurried and inadequate in 1923 speeds and loads it was designed for and is urgently more so now. The plan of putting the state of AK Department Directors in your merry Board Meetings has had the effect of removing them from acting as guards for the people’s rights who pay them through public trust funds. This is not working for the people or the land and spawning salmon John. You know it. You don’t care.

  8. The behavior patterns if the railroad has been remarkably similar everywhere they are in South Central Alaska. Howls of dismay in Seward, Whittier, Portage and Anchorage. We regulate for real per our constitutional rights trucks and we will will regulate ARRC. We will tell you per AMATs what our priorities and nobody is taking private rights, any of them without appraisal, negotiating paying market price FIRST. you don’t,t get : the bundle the rights easement without paying us for them first. get it? You have been around a long time CFR 49 is the process. The process is not litigate in federal court first bro.. You aren’t that stupid. Lisa Murkowski? I’m not sure about.

  9. CFR 49 is the one in question. I threw my personal copy into the landfill a few years ago which is what Alaska departments have done as well. Now I prefer Mason’s Manual.

  10. also, I can’t help but think Quo Warrento. one may challenge jurisdiction before, during , or after ANY case in America. Soooo, I believe the first jurisdiction is Municipality of Anchorage AMATS or arguably the State of Alaska Right of Way Section. if you aren’t too busy DOT you might want to program several millions with admin costs for doing the work to acquire lawful per state residential accesses complete with fire and safety turn around from SHW MP 82 to Ingram creek on either side as needed. writ of Quo Warrento.

  11. We could have had this convo in your board room with everyone smiling and supping on birthday cake as you interminably and affably, celebrate each other’s interminable birthdays. But No. The unwashed publics are not welcome in your publicly paid for spacious party/buffet board room(s). So we must communicate via MRAK who we thank heartily for the courtesy.

  12. The Alaska Railroad should protect its right of way against criminals and homeless persons. The Alaska Railroad was here first. Property rights are supreme.

    • Railroad is a fictional person. A living breathing man has constitutional rights mythical corporations cannot have in spite of their employees, sycophants and wind-up flying monkeys.

  13. John Shivley says: “The Alaska Railroad, on the other hand, believed it was transferred at least an exclusive easement when the Railroad was purchased by the state. ”

    Interesting timing. AKRR was sold to the State in 1985. They didn’t start claiming exclusive ROW until their new regs in 2008. Did they find something hidden in the dark corners of the 23 year old piece of legislation that nobody else knew about (Stevens, Murkowski and Young), told anybody about at the time it was passed, or are they making it up as they go?

    John Shivley says: “After listening to both sides and reviewing the history of the issue, I became convinced that the only way to resolve the issue was through litigation.”

    Pretty convenient course of action, that, as property is conveyed by legislation. No legislative body, congress or the legislature passed legislation specifically giving AKRR exclusive ROW. None. Zip. Zero. Nada.

    John Shively goes on to say: “However, I had no opinion as to which side would prevail in such litigation.”

    What rot. Nobody enters into a lawsuit unless they believe they can win. And AKRR, a state corporation using state funds has essentially a unlimited piggy bank of state $$$ to fund their side of the lawsuit. Regardless of anything happening in the courtroom, they can simply stretch out the festivities until they grind their target into dust under millions of $$$ of legal fees, obtaining the precedent they do desperately want. It is no accident they went after a local HOA rather than a Native or Village Corporation or another government. An alternate approach would be to wait for an idiotic opinion like they got from the Ninth Circuit last summer.

    Finally, I would be careful using the term “fair”, as fariness is entirely in the eye of the beholder. Cheers –

    • that is a failure if the US Constitution guaranteed form of government and when principles of equity get applied in the US Court of appeals. We must start a formal petition process to place before the vaunted transportation committee instructing them about we want them to do to cease the Alaska Railroads refusal to recognize and obey the US Constitution regarding actual rights of their superiors we the people’s property rights. we instruct Congress. That is our process we must do our process due AND document and pray for relief. That is how our form of government, the republic, works for us. The courts do not have subject matter jurisdiction over railroad operations. The municipality, state, and Congress legislature does have that subject matter jurisdiction every day. Judges have jurisdiction over jots and tittles presented on paper per court rules.

  14. As an Alaska Native woman who has been emotionally harmed, disparaged and insulted every damned day in my life in Alaska by relative newcomers do not expect me to act like a coddled spoiled white woman. The ARRC epitomizes everything I hate about Alaska. the behavior of the petulant railroad has split the state as pointed out to me by one of their lawyers. so, they are well aware and rewarded by Congress. $. tGey have forgotten their anti trust sentiments against bullies and monopolists wannabees. “Everything is mine” attitude of the ARRC is not endearing. .

  15. They have faithfully earned their antipathy. We the people can and will look back to see if our creation ARRC is tyranny now. It is. They started with their misinformation during the 911 aftermath under the Bush’s tutelage. The post 911 dogma and faith that the trains boats and planes were seized in warfare and DOD assets and as operational policy was a bit premature. It had not been announced as fact yet yet by the ADN.

  16. Dang. Somebody has offended VTQ for certain. Seems she might know a little about the subject as well. What say you, Mr. Shively?

  17. John,
    How do you feel about term limits on the Board? Binkley has been on the Board since back in your old boss, Governor Sheffield’s, days. Give us a number of years that you would say is fair, John. Be honest.

  18. Privatize it. They use out of state track inspectors out of state equipment and on and on. They only want to haul tourists. I want it connected to the trans Canadian railroad to open up 1 more shipping option.

  19. “1) Relating to, or suggestive of a wild beast;” – Dictionaries might further define this as suggestive of large and dangerous animals exhibiting the crude nature found in all life forms. Annexing property rights from patented homesteads and charging the owners to use their land is a cheap display of territorial expansion for resources with no regard for the status quo relationships enshrined in law.

    “2) not domesticated or cultivated: wild;” – Hiding behind a federal court finding in favor of federal supremacy and covering up a sloppy job by Congress – surprise surprise – does not justify continuing to benefit from the broken promises and theft of land from homesteaders, Alaska Native Villages, miners, and others, unless you are undomesticated by laws.

    “3) having escaped from domestication and become wild.” – Whatever the vision was for the Alaska Railroad Corporation, it can and must realize that vision with the federal property interests it was given, whatever the federal government reserved in every patent along the right-of-way, and whatever it chose to give from its own properties. The Corporation’s claims evidence an escape from the confines of settled principles.

  20. Once again John you are wrong ,you tried to turn my mining claim into a lease and I didn’t buy it. You used the KPB to do your dirty work to remove me but today many that have a life time investment their homes & property will stand & fight…. what a property rights thief , in the name of a state sponsored Corporation. Shame on you!

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