Tom Stewart sees nothing inherently wrong in building hiking and biking trails for exercise and communing with nature.
“I’m not against them at all,” the Kansas City attorney said. “I applaud hiking and biking.”
But what he won’t tolerate, he said, is when the creators of those trails stomp on landowners’ rights, flouting the 5th Amendment of the U.S. Constitution in order to take away owners’ land without just compensation.
In two lawsuits, that is exactly what Stewart claims the government of Jackson County did when it acquired 17.7 miles of railroad corridor, once used by the long-defunct Chicago, Rock Island & Pacific Railroad, to turn it into a much anticipated hiking and biking trail.
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The Rock Island corridor — absent of train traffic for more than 30 some years — stretches between Lee’s Summit and the Truman Sports Complex. Before they were ripped up, the unused tracks ran behind homes, woods and past industrial businesses. In 2016, Jackson County paid the rail line’s then-owner, Union Pacific Railroad, $52 million for a quitclaim deed to the property, leveraging taxpayer-supported bonds to raise the money to turn the land into a “multi-use” trail.
More than six miles of the trail is expected to open early this year. When the rest is done later in the year or in 2020, the expectation is for the trail to attract thousands of hikers and cyclists and to eventually bring in millions of dollars of trail tourism as it spurs new development.
In promoting the project, county officials created glossy renderings, telling taxpayers that the corridor might one day support a new commuter rail line to haul Kansas City Royals and Chiefs fans to and from the stadiums and perhaps into downtown Kansas City.
That aspect spurred the Kansas City Area Transportation Authority to sign onto the project and agree, over the next 30 years, to reimburse the county for half of the $85 million the project will eventually cost taxpayers in principle and interest.
“Imagine being able to leave your seat at the top of Arrowhead Stadium and get home before most cars leave the parking lot,” Mike Sanders, then the Jackson County Executive, said when the KCATA signed on in 2015. “Imagine the economic development in Kansas City, Raytown and Lee’s Summit spurred by trailheads and transit stops.”
Ultimately, the big picture as a hiking and biking trail is for the 17.7-mile corridor to tie into a string of similar trails that might one day connect it from downtown Kansas City to the 240-mile Katy Trail, all but tying Kansas City to St. Louis in one continuous path.
“Imagine, connecting to the Katy Trail so that you can ride a bike from the Truman Sports Complex to the St. Louis Arch,” Sanders said at the time. He is now serving a 27-month term in federal prison for campaign and wire fraud, unrelated to the railroad project.
Trail advocates hold out hope that it might also link to a 144-mile stretch of the old Rock Island corridor in central Missouri that its current owner, the utility Ameren Corp., has offered to donate all but free to Missouri State Parks. In February, the state is set to decide whether it can afford to take on the estimated $60 million to $80 million cost to transform the lengthy rail bed into a useable trail.
“This project is an investment in our county, in our residents and in our businesses,” Jackson County Executive Frank White said when the 17.7-mile deal with Union Pacific was signed. “This is about one generation working to provide new opportunities for the next generation.”
Dennis Hays, senior policy adviser of the transit authority, said the KCATA bought into the project, and access to the corridor, as “a long-term investment. It was a long-term vision for the future.”
No commuter train route is currently being planned.
“Neither you, nor I, nor anyone right now knows what transit will look like 20 and 25 years out,” Hays said. “We do know that growth in Lee’s Summit is going to be very significant over that same time period. Trying to connect Lee’s Summit and that part of Jackson County to the central city would be a great opportunity.”
None of which sounds convincing to Stewart or his co-counsel Elizabeth McCulley, a partner in the firm Stewart, Ward & McCulley. Nor should it occur, they hold, at the expense of adjacent landowners, such as 69-year-old Danny Smith.
“Basically, they are usurping people’s rights and trampling on their property, which they don’t have the right to do,” McCulley said.
Smith owns Lee’s Summit Block & Stone Co., a business that has existed for 50 years. Its outdoor inventory yard, stacked with bricks and stones, extends for more than 600 yards along the old Rock Island line.
Years ago, freight trains stopped there.
“You wouldn’t believe how much brick I unloaded from that track,” Smith said.
When Jackson County bought the rights to the corridor, Smith didn’t receive a dime.
What he did get, as the tracks were pulled up and hauled away for salvage, was piles of split, toxic railroad ties and other debris junked in mangled heaps along the side of his property, which are still there. Smith is one of six plaintiffs in the suit against Jackson County. If the suit is successful, he’d expect to be paid for the hundreds of yards of property now being used by the trail.
“Sure. Who wouldn’t?” Smith said. “It’s the American way.”
Despite requests, Jackson County did not make any officials available to The Star for questions or on-the-record interviews. The county said it does not comment on ongoing litigation. They sent documents.
In circuit court filings, the county concedes that the plaintiffs in the lawsuit are “landowners who contend they own . . . title in land” adjoining the Rock Island corridor. But they deny all other allegations.
The crux of the case centers on how Jackson County took possession of the 17.7 miles in the first place, which it maintains will be proven legal in court.
Rails to trails
Nationwide, more than 2,000 formerly unused rail lines have been transformed into some 24,000 miles of hiking and biking trails, according to the Rails-To-Trails Conservancy, a non-profit that promotes rail-to-trail conversions. Among those trails, one of the most famous is Missouri’s 240-mile Katy Trail, so named because it primarily runs along the path of the old Missouri-Kansas-Texas (MKT) railroad. The Katy Trail is the longest continuous rail-to-trail corridor in the U.S. and Canada.
When railroad companies find that it no longer is feasible for them to maintain old and unused rail corridors, the railroads have several alternatives. All those alternatives tie to a federal regulatory entity called the STB, the Surface Transportation Board, which among its powers oversees the acquisition and abandonment of rail lines.
Among the options: a railroad can file a notice or petition with the STB to abandon its right of way because the line has gone fallow, having become unprofitable or lacking rail traffic for at least two years. Once the corridor is officially designated as abandoned, the corridor is no longer part of the national rail system. And whatever land the railroad doesn’t own outright — meaning land acquired through easements — reverts back to the adjacent land owners.
The second option, used to create the vast majority of rail-to-trail projects in the U.S. — and which Stewart, the attorney, said Jackson County ought to have used — is called railbanking.
With railbanking, established in 1983 as an amendment to the National Trails System Act, a corridor’s tracks and ties may get pulled up, but the corridor itself is still part of the national rail system. It still exists, essentially is “banked,” in the event that the country needs it for future rail use. The Katy Trail, for example, is railbanked.
“Putting together all these right-of-ways was hard enough in the 1800s and 1900s,” said Eric Oberg, director of Midwest trail development for the Rails-To-Trails Conservancy. “You have a lot more people and a lot more properties now. Putting them back together would be next to impossible. So they (the federal government and railroads) don’t really want these intact corridors to go away.”
Under railbanking, a railroad files a petition with the federal Surface Transportation Board. In the meantime, a third party — such as the state park system, or county government, or even a non-profit — files what’s called a Notice of Interim Trail Use, saying that, in the interim, until and if the corridor is ever needed for rail, it will be used to create a hiking and biking trail.
The two parties then have at least 180 days to negotiate a price for the land and other conditions. Numerous courts, guided by the 1996 federal rails-to-trails case Preseault v. the United States, have determined that adjacent landowners have the right to get paid for their property.
The bill isn’t paid by the group creating the trail, it’s paid by the federal government.
With railbanking, railroads offload their aging property. Corridors are maintained. Trail lovers get their trails. Landowners get paid.
“Everybody wins,” Stewart said.
But Jackson County took a different route to obtain the Rock Island corridor.
Instead of railbanking the 17.7 miles, the county petitioned the STB and formed a subsidiary corporation, the Rock Island Rail Corridor Authority, initially headed by Sanders’ long-time aide, Calvin Williford. With his former boss, Williford this year was found guilty of campaign fraud and in November began a six-month sentence in federal prison.
In paying Union Pacific $52 million, the county through the new railroad authority acquired a quitclaim deed to the old rail corridor along with all its easements — a transfer of rights from one railroad entity to another.
The Surface Transportation Board approved the transfer in 2016.
But it did so under the condition that the authority would agree to pick up what is known as Union Pacific’s “common carrier obligation.” In other words, if a freight customer wanted to ship freight along the old line, Jackson County’s rail authority would provide it.
It’s a claim that Stewart finds not only ludicrous, but also bogus.
He argues that Jackson County acted in a “fraudulent” manner when it made such an assertion before the federal Surface Transportation Board. If Jackson County had left the tracks in place alongside a hiking and biking trail, maybe they could make the claim to have the ability to haul freight. But there are no tracks. They have been ripped up. The county has no plan at this point, let alone millions of dollars, to replace them and run freight.
“They (Jackson County) have pulled a fraud on the STB, in our opinion,” Stewart said. “And they have also pulled a fraud on these land owners. More importantly, they have pulled a fraud on the taxpayers of Jackson County.”
As such, Stewart and co-counsel McCulley currently have a petition before the Surface Transportation Board requesting the regulators revoke the county’s petition to take over the corridor as a rail carrier.
“It’s not real,” McCulley said of the authority as a legitimate rail company. “It’s a non-carrier. The whole thing smells.”
Jackson County has employed its own legal counsel to fight the state case, filed nearly a year ago in Jackson County Circuit Court. In November the county legislature allocated $60,000 to pay legal fees to an outside attorney to represent it in the federal action.
The county, in its legal response before the STB, notes that there are no active freight trail customers on the Rock Island line, but “if a customer requires common freight rail service in the future, Jackson County would provide such service through a contractor.”
To be sure, the idea to turn the old Rock Island corridor into a hiking and biking trail dates to at least the 1990s. In 2005, when the Mid-America Regional Council looked into turning the corridor into a rails-to-trail project, the assumption was that it would be railbanked.
Stewart and McCulley said they are looking for answers as to why that changed.
Last month, Jackson County Circuit Judge Jalilah Otto granted McCulley’s motion to go back 10 years into emails and other documents that the county possesses regarding the Rock Island corridor acquisition.
“We think there’s some underhanded dealings here,” Stewart said by phone.
Indeed, they question the very cost of the deal under the now imprisoned Sanders.
In 2010, an appraisal of the 17.7-mile corridor was put at $15 million. But in the end, it was purchased for $52 million. A 2015 memo, marked as “confidential,” and given to The Star by Jackson County officials, offers some explanation.
Although the real estate value of the property was appraised at $15 million by local officials, Union Pacific — which had not run trains on the line for 20 years — insisted that its usefulness as a freight corridor far outweighed its real estate value alone. Union Pacific put the price tag at $100 million.
The county, wanting to gain the right to perhaps use the corridor as a freight route, ultimately settled on a price somewhere in the middle.
“In essence,” the memo reads “Jackson County sought to obtain UP’s ‘franchise’ to operate on the corridor. . . .Additionally, Jackson County sought to gain UP’s support for a route through the Kansas City Terminal to the River Market area.”
Although it also remains to be seen whether Jackson County taxpayers will feel they have gotten their $85 million worth, among trail enthusiasts there is little doubt.
The payout in trail tourism, they insist, amounts to millions of dollars each year.
“To be honest with you,” said Oberg, of the Rails-To-Trails Conservancy, “that Jackson County piece — that is very expensive corridor. But getting corridor in the metro area is really hard and really rare. It’s almost mind-boggling expensive.
“But when you say that’s the value of having the metro area connected to, potentially, the largest trail system in North America — I’d say that whatever you got to do to make that happen will pay off eventually.”
Whether adjacent landowners ever get a penny will be settled in court.