By ALEX GIMARC
I put together a 5-part series in Alaska Politics and Elections Online (APEOnline) summer 2021 exploring the ongoing war between the Alaska Railroad and property owners along its tracks. It was a fascinating journey in predatory corporate behavior and bullying aimed at its neighbors. My conclusion was that Alaska Railroad was unnecessarily ugly and really needed to tone the nastiness down.
A follow-up piece last summer explored Alaska Railroad playing footsie with the Long Trail supporters as the use of the Alaska Railroad right-of-way is only way one can construct a trail system from Fairbanks to Seward, something that is illegal under federal law today.
There was some movement between August and September in the Flying Crown Homeowners Association v AKRR case, as the Ninth Circuit Court of Appeals rendered a jaw-droppingly awful opinion that rewrote 150 years of federal law, ignored previous U.S. Supreme Court opinions, granted the railroad exclusive use rights-of-way along their tracks, something that doesn’t exist for any other railroad in the US.
Given the awfulness of Ninth Circuit opinions over the last half century, this opinion is no surprise. Happily, the process is still underway, with at least one appeal to the entire Ninth Circuit available and following that a trip to the Supreme Court is still possible.
My question is: What has the Alaska Railroad done in response to their big wins in court? Has their behavior changed? If so, how?
It took a while to get a straight answer from my sources, not because of a lack of activity from the Alaska Railroad, but rather due to teeth-numbing anger and frustration from hundreds of abused property owners living along the tracks from Anchorage to Fairbanks.
Before reviewing the action this summer, a review of railroad rights-of-way is in order.
A normal right-of-way allows the right-of-way owner access to the property of the owner. Think of a utility right-of-way in your backyard. Per U.S. law, the standard 200’ wide railroad right-of-way allows the railroad to keep tracks and immediate beds clear of all obstructions. The total width is intended to keep accidents from being deadly to bystanders. The closer you get to the tracks, the more limited your ability as a property owner is to build structures or plant trees.
AKRR published a 2014 set of technical specifications on who can do what in the rights-of-way. The exclusive right-of-way granted by a wrongly decided Ninth Circuit opinion essentially grants ownership of that 200’ wide strip of land to the railroad, which is a taking.
The question arises: Did the Alaska congressional delegation at the time (Sen. Ted Stevens, Sen. Frank Murkowski and Rep. Don Young) legislatively commit a legislative taking, literally stealing property from the property owners along the Alaska Railroad tracks? The answer to this is clearly no, despite Alaska Railroad claiming exclusive use of the right-of-way for nearly a decade. The phrase “land thieves” comes to mind, should you want to get into the name-calling business.
What happened last summer?
The latest flash point was brush clearing along the tracks. Two summers ago, when the crews showed up from Nancy Lake to Talkeetna, they did their brush clearing working with the property owners to retain trees clearly a distance away from the tracks, but within the 200’ easement.
Last summer, that notification, negotiation ended, and the crews simply mowed everything in the easement, removing all trees and natural fences grown over the years, infuriating the property owners. They returned to properties manicured two years ago for a second round. Property owners were neither consulted nor listened to when the crews showed up. Happily, nobody got shot.
Did this matter to the Alaska Railroad? Hardly.
The railroad logic appears to be take advantage of the opening the court gifted them by cleaning up their list of outstanding work to do, and if the opinion is subsequently reversed, you can expect their response to be some variation of: “Oopsie. Our mistake. So sad. Too bad. Sucks to be you.”
There are other festering issues with the Alaska Railroad. One of the worst may be the right-of-way patent accepted in 2006 by the railroad that put a cloud on all other property titles (homestead patents, for instance) along the rail lines. That will be a topic for another piece.
The Alaska Railroad has been an intentional bad actor along the Railbelt for the last decade, acting the bully on a regular basis, bashing its neighbors and converting a lot of supporters into former supporters. Now that they think they have ownership of their rights-of-way, they are being even uglier to their neighbors. Any business, even a state-owned business that goes feral and chooses to intentionally pick fights with their neighbors and customers will not be long for the competitive world. Neither should the Alaska Railroad. Should they keep this up, we will shortly be in a discussion on the question: “Is the Alaska Railroad is simply too nasty to exist?”
Depending on the outcome of that discussion, it will be time to do something about them.
In the meantime, what are our options? With a problem like this, normally, one would get the Legislature involved. The problem with that approach is that the Alaska Railroad typically ignores the Legislature — that is, until they need more money or some legislation. Today, the best handle on their behavior is the governor, who appoints their board of directors.
With that in mind, it is long past time for the governor to conduct a thorough housecleaning of the AKRR Board and appoint members who are just as interested in their moral and legal responsibilities as they are in targeting their neighbors. Gov. Mike Dunleavy can solve this. It is long past time he do so.
Final thoughts: I have been working in the political wars for over 30 years in this state and have seen a lot of anger on both sides of the political fence. But the level of outrage, anger and frustration from property owners of all political stripe along the Alaska Railroad right-of-way is orders of magnitude beyond anything I have encountered during that time. In a lot of ways, the Alaska Railroad is acting like the Chinese Communist Party, simply stepping on people because they can and giggling about it afterwards.
Gratuitous ugliness is hardly a positive lifestyle choice or profitable business model. Just because you can do something doesn’t mean you should.
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.
