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Originally published June 7, 2014 at 2:58 PM | Page modified June 7, 2014 at 6:34 PM

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Was public railroaded in trail deal?

Government officials said they bought the Eastside rail corridor for use as a trail, but it turns out that wasn’t quite true. Now the courts are making them pay substantially more for it — at taxpayer expense.


Seattle Times staff columnist

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Just remember when you vote on all the new tax levies coming this year- this mistake by King County would have covered... MORE
Maybe Stoel Rives law firm should put up the $35M fee. "Nobody could have imagined" the easement issues? Evidently... MORE
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Six years ago, King County and Port of Seattle officials gathered in front of the Wilburton railroad trestle in Bellevue to announce what they said was a historic purchase.

They were buying a rail corridor along the Eastside from BNSF Railway to convert it to “the granddaddy of all trails,” as then King County Executive Ron Sims called it. They also hoped to run commuter trains on the tracks someday.

Officials for the two local governments fist-bumped on that May 2008 day as the sale papers were signed. The deal cost taxpayers $81 million.

Except there was a huge red flag in those papers — a sizable legal caveat that was glossed over in pitching the deal to the public:

“Port and County acknowledge and affirm that BNSF may not hold fee simple title to the Property, that BNSF’s interest in all or part of the Property, if any, may rise only to the level of an easement for railroad purposes,” the contract read. “Port and County are willing to accept the Property on that basis.”

Meaning: The railroad didn’t own a lot of the land. For parts of the line, it was selling only the right to run a railroad. Nothing else.

“In a sense the railroad sold them the Brooklyn Bridge,” says Tom Stewart, a national plaintiffs lawyer.

As a result, last month the federal government agreed to pay out a huge settlement, $140 million to 253 property owners along the Eastside rail line from Renton to Woodinville. The money is compensation for using their land for the planned hiking and biking trail. A whopping $35 million of that goes as a fee to the lawyer, Stewart.

The payout sets a U.S. record for the “rails-to-trails” program, but not the kind it was shooting for. When the program was established in 1983 by Congress, it was supposed to be a free or very low cost way of converting abandoned rail corridors for use as public trails.

The problem that’s cropped up is that most rail lines run across somebody else’s property (typically all the railroad has is an easement, or a right to use the property). When the use of an easement changes — going from a railroad to a trail — it’s as if a new easement has been created. So landowners increasingly are making the government pay for these new trail rights.

The average payout per homeowner along Lake Washington is an eye-watering $415,000. The payouts range from $10,000 to more than $1 million, just to change a rail bed to a trail bed.

The government contends this is private-property rights gone haywire. These landowners have always had trains running through their yards, so if anything, a trail is a more benign use. But it keeps losing in court. It’s the federal government that’s paying this settlement, not King County or the Port, because it authorized the change in use from rail to trail.

One of the property owners, Buzz Dana, has lived on Ripley Lane in Renton for 44 years. He said landowners realize the settlement may be seen as too rich, but they were trying to get the government to stop acting like it could do whatever it pleased.

“It’s not their land, and they made this assumption that this stuff is coming through, come hell or high water,” Dana said. “They tend to do what they want without asking anyone.”

Matt Cohen, a lawyer for Stoel Rives in Seattle who helped King County broker the original deal with BNSF Railway, said public officials were aware there could be private-property issues along the line. But the railroad deeds go back to the late 1800s and are often obscure.

“They couldn’t have had any idea of the magnitude of these claims,” Cohen said.

The lawyer who won the case, Stewart, of Kansas City law firm Baker Sterchi, disagrees. He said he has a perfect 26-0 record in rails-to-trails cases around the country because the law is clear and has been since the 1990s.

“The Port and King County knew what they were getting into, or should have,” Stewart said. “If they had been upfront with everyone — that there were major easement issues to be dealt with — they probably could have saved themselves a ton of money.”

If nothing else, maybe we could have saved the $35 million fee the taxpayers are paying this lawyer.

As it is, the full 42-mile corridor has cost taxpayers $221 million to date — more than $5 million per mile. And no trail has been built yet. Plus the lawsuits are not over. Stewart said 50 more property owners along the line just filed. He also suggested if the government moves to run light rail on the easement portions of the line, that may constitute another new use (on the theory that passenger light rail with stations is different from a commercial railroad).

Cohen is also on the board of the national Rails-to-Trails Conservancy, a nonprofit dedicated to creating new trails. He said the settlement is troubling because of the price tag, but it doesn’t change that the public now has a national-caliber asset — the rights to a transportation corridor that would be impossible to get any other way.

“What’s the price you would put on the Burke-Gilman Trail today?” Cohen said. “It’s absolutely beloved. So even taking in the cost of this settlement, the Eastside corridor will still turn out to be a great deal for the public.”

That long view may turn out to be right. We often forget about the costs once we’re enjoying the benefits.

But in the years of public debate over what to do with this rail line, I don’t recall anyone in any official capacity even mentioning the ownership issues that just cost the taxpayers $140 million. When citizens did, they were dismissed as cranks or naysayers.

We need a much more transparent government than this. So at least we know what we’re getting ourselves into, before, as in this case, it’s too late.

Danny Westneat’s column appears Wednesday and Sunday. Reach him at 206-464-2086 or dwestneat@seattletimes.com



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About Danny Westneat

Danny Westneat takes an opinionated look at the Puget Sound region's news, people and politics. Send tips or comments to dwestneat@seattletimes.com. His column runs Wednesday and Sunday.
dwestneat@seattletimes.com | 206-464-2086

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