Certified Mail
March 23, 2014
The Alaska Railroad Corporation
431 W. First Ave.
Anchorage Ak.
99501-1635
Attention: Mr. O’Leary, President
Dear Mr. O’Leary
Re: RRUP/ARTA
First let me say that I am generally a friend of railroads and of the Alaska
Railroad in particular. I was born not far from a railroad line and when I
returned to stay at my grandparent’s place (which had been the hospital at the
time of birth) I slept in the room where I was born and heard the trains passing
by, hauling grain. Later I lived next to another line that was little used. In 1981
we bought our present residence next to the tracks in the Ocean View area of
Anchorage. This is to point out a distinct past sense of goodwill toward
railroads, but unfortunately one rapidly departing. I hope that this letter will
return some of the good feeling I have held for railroads.
The purpose of this letter is to bring to your attention the matter of the
Residential ROW Use Permit Program (RRUP) and the attempt by the railroad
to obtain “exclusive use” easements in metropolitan areas through the Alaska
Railroad Transfer Act (ARTA), replacing the 1914 easement.
For some time the Board of Directors and the Alaska Railroad have been in
the process of developing, promulgating and implementing RRUP. This
program has received unfavorable responses both from the public and their
elected officials. The purpose of this letter is to suggest to you that the program
be withdrawn.
I testified before the board in 2012 and suggested that the approach of treating
the entire railroad easement the same, whether it crosses public or privately
owned property, was misguided. It overlooks private property interests.
In comments recently made, I suggested that the railroad has no legal authority
to require a permit from private property owners over whose property the
easement passes and furthermore that the railroad has no right to charge for nonconflicting uses of the land by the property owner.
The comment recites: “For most of the track easement, and specifically as to
that adjacent to our residence, the Alaska Railroad does not have the right or
1
authority to require permits for adjacent property owners to use the easement so
long as the use does not unreasonably interfere with the railroad’s use per the
Alaska Railroad Act of March 12, 1914.”
The “company line” position taken by the railroad in RUPP and in the ARTA
transfer to the effect that the railroad easement is more extensive than a normal
easement was never valid and that fact has now been made clear.
While the railroad, the state, and the federal government may deal with the
easement as it relates only to these entities in any manner in which it wishes, as
the easement pertains to private property the situation is different.
I am enclosing a link to the March 10, 2014 case of United States Supreme
Court of Marvin Brandt Revocable Trust vs. United States, enclosed. One need
not be an attorney to read and understand this decision and I invite you to read it
as neighbors and others including some legislators have done,.
The court considered several issues: 1) how a rail easement arises, 2) the
respective rights of the easement holder and the property owner (“property
owner” is not the railroad, which has only a “nonpossessory use” of another’s
property) and 3) what happens to the easement upon abandonment. I would like
you to examine the case, as to each of these topics. The Supreme Court
comments and rulings of law agree with the discussion on
www.alaskarailroadeasement.info. For example, similarly to the patented
homesteads over which the easement was reserved under the 1914 Alaska
Railroad Act, the Court states: “…the purchasers or grantees of the United States
took the fee of the lands patented to them subject to the easement….” citing 16 Op.
Atty. Gen. 250, 259(1879).
The Brandt court states that an easement is a "nonpossessory right to enter and
use land in the possession of another and obligates the possessor not to interfere
with the uses authorized by the easement.” Slip Opinion P 11.
At p. 11 the court quotes with approval from a case entitled Smith v
Townsend… "Whoever obtained title from the government to any… land
through which ran this right-of-way would require a fee tract subject to the
easement of the company, and if ever the use of that right-of-way was
abandoned by the railroad company the easement would cease, and the full title
of that right away with just in the patentee of the land".
The respective rights of easement holders and the possessor/landowner under
state law are similarly set forth in Alaska Supreme Court cases cited in the
website referenced above. The language of the authorities cited there and in
Brandt is clear. The Alaska Railroad has a simple easement, a “non -possessory
use”, as explained in Brandt. The Alaska Railroad Corp. (ARRC) has no right
to require the property owners to acquire a permit for using the easement in a
manner which does not interfere with use by the railroad as stated in the 1914
2
Act. The railroad does not have a right to charge the property owner for using
their own property, a point previously made in my RRUP comments.
The pending issue of RRUP is one matter. Another is the activity of the
railroad concerning transfer of the easement under ARTA. The ARRC position
in the transfer matter seeks to convert the existing easement into an “exclusive
use” easement. This is being done through the BLM process during which the
ARRC is asserting property rights that are inconsistent with the law as made
even clear through the Brandt decision, as well as prior cases and statutes and
authorities.
The ARRC/ BLM activities are at odds with ARTA and common sense. This
activity seeks to alter private federal land patents encumbered by the easement,
beginning in my own neighborhood. In these patents were commonly reserved
an easement for the purposes stated in the 1914 Alaska Railroad Act: “railroad,
telephone and telegraph”, the latter two being associated with railroad
operations. I have no objection to a transfer of the actual federal interest in the
reserved easements. I, and others, do, however, object to the railroad taking
steps with BLM to enlarge and expand its rights at our expense.
The attempt to gain an exclusive use easement is at odds with the actual rights
of the federal government reserved in the various land patents concerning the
rail line. The actual nonpossessory right of use for rail easements after 1871 is
explained in Brandt. We can discuss the rights and duties of the railroad and the
owners of property affected by the existing easement if that is something that
you would like to discuss. I believe that we could agree on much of this, with
the guidance of the cases and laws referenced here.
I, and a number of others, wonder whether or not the railroad feels bound by
any state or federal law, whether statutory (ARTA or ARCA) or case law, and
invite your attention to this issue. There is reason to suspect that the railroad
deems itself sufficiently powerful to simply ignore applicable legal
requirements. For example, the ARRC seeks from BLM an “exclusive use”
easement in a metropolitan area, as defined by ARTA Sec. 1202(6). Absent
legislative approval, which the railroad does not have, Sec. 285 prohibits the
railroad from requesting or from receiving Sec. 1202(6) “exclusive use”
easements in any metropolitan area, which includes Anchorage. See this link:
www.touchngo.com/lglcntr/akstats/Statutes/Title42/Chapter40/Section285.htm.,
specifically Sec. 285 (5)(c) which allows only transfer of rights as defined in
1202(10) without legislative approval: that is, 1914 easements. The language is
clear, but is ignored by ARRC.
The purpose of this letter is to ask you specifically to withdraw RRUP, to
cease all violations of AS 42.40.285, and to refrain from impairing private
property rights relative to the easement through the ARTA process.
3
Comments are in order about the methods the railroad uses to effectuate its
goals. As to both RRUP and the ARTA transfer the ARRC is obviously
approaching the matters “piecemeal” so as to avoid stirring up opposition
sufficient to successfully oppose the railroad, which is publically funded, and
perhaps, with excessive generosity. An incremental approach against private
non-commercial property rights, to be followed by the same against commercial
entities, was announced at the Board meeting in 2012, and is demonstrated in
the steps taken both as to RRUP and the ARTA transfer.
This involves first attacking the real property rights of a few non-commercial
landowners who are the most vulnerable and the least financially prepared to
fend off these intentional and conscious assaults on private property rights. The
relative financial capacity of the railroad and affected residents to litigate is
noted. It affects our ability to protect our property interests. I am aware of a
number of affected persons who are elderly and/or in poor health. The
additional stress caused by the railroad policies is unwelcome. The purpose of
making the point is to demonstrate that the approach of the railroad is wrongful
in that it seeks to employ unfair advantage.
Depending upon how RRUP is handled, what the railroad has asked and is
currently asking the Bureau of Land Management to do on their behalf under
ARTA, and depending upon what has been or is being recorded in real property
records affecting this writer’s property and the property of others, the Alaska
Railroad is skirting the edge of disparagement of property rights, and infliction
of emotional distress, both significant torts.
This letter serves as an alert to you that the motives and methods of ARRC and
its officers, directors and employees are being observed and noted by those
adversely affected.
I hope that you will give consideration to this matter in the next 30 days and
advise the public accordingly.
Sincerely,
_____________________________
John W. Pletcher III
13608 Jarvi Dr.
Anchorage, Ak. 99515
4