Wednesday, September 30, 2015

Railroad Warns Bauer To Keep Out Of Corridor

rail car 2A rail company that wants to store used oil-tanker cars on tracks in the Adirondack Park is threatening to press charges against the executive director of Protect the Adirondacks if he returns to the rail corridor — even though the corridor runs through publicly owned Forest Preserve.

Iowa Pacific Holdings, which is based in Chicago, sent a letter to Peter Bauer, executive director of Protect the Adirondacks, warning him to stay out of the corridor after Bauer and Brian Mann, a reporter for North Country Public Radio, hiked a section of the tracks and posted photos of old railcars.

“Should you fail to stay off of our property, we will pursue all remedies available at law, including seeking to have criminal charges brought against you for unlawful trespass,” David Michaud, Iowa Pacific’s attorney, wrote Bauer in a letter dated September 10. He emailed a copy of the letter to a state trooper. Mann was not sent a letter.

Protect’s attorney, John Caffry, wrote back (cc’ing the trooper) asserting that members of the public have the right to walk in the part of the corridor that lies in the state-owned Forest Preserve as long as they don’t interfere with rail operations.

“Given that there is currently little or no rail traffic on that portion of your railroad, that there has not been any for decades, and that it is unlikely that there will be any in the future, it is extremely improbable that such unreasonable interference will occur,” Caffry wrote.

In an interview with Adirondack Almanack, Caffry said Iowa Pacific owns an easement in the corridor, but the public owns the Forest Preserve it crosses.

“If you hold an easement, that does not give you the right to exclude the owner of the property,” Caffry said. “You get to use the property; you don’t get exclusive use of it.”

In an email to the Almanack, Michaud responded to Caffry’s letter thus: “I agree that that neither Mr. Bauer nor the public at large can unreasonably interfere with our rights as the owner of the easement. I don’t agree, however, that rail traffic is the only controlling benchmark for unreasonable interference with railroad operations.”

Michaud said the primary intent of the letter was to put Bauer on notice that he has no right to walk within the corridor.

Bauer and Brian Mann walked the stretch in question in early September while Mann was doing a story on Iowa Pacific’s controversial proposal to store oil cars on the line.

In an interview with the Almanack, Mann said he does not recall seeing no-trespassing signs along the tracks, but he did see evidence that the tracks get a lot of traffic from hikers and anglers. “I don’t think it’s posted, but if it is, people are using it regularly,” he said.

Bauer told the Almanack that he and Mann started on Northwoods Club Road and walked north on the tracks along the Boreas River. After a mile or so, they came upon a siding with old passenger cars. Bauer said the cars were “in poor condition,” with paint chips flaking off. Photos of the cars ran on both Protect’s and NCPR’s websites.

rail car 1“If this is how Iowa Pacific stores junky old passenger cars, it doesn’t give us much confidence that they can safely store used oil-tanker cars,” Bauer said.

This summer, Iowa Pacific President Ed Ellis told Warren County’s Public Works Committee that the company planned to store empty oil cars on the line, which runs from North Creek to an old mine near Tahawus. Nearly half of the 29-mile corridor is in the Forest Preserve.

Iowa Pacific has not publicized details of its proposal, and Ellis has not returned repeated phone calls. Michaud, however, said the railroad is talking to potential customers about storing a variety of railcars–not just oil tankers–on the line. These might include hoppers and flatcars.

“Unfortunately, our intent has been misconstrued by people like Peter Bauer who seem to want to fear monger against us rather than get the facts straight,” Michaud said.

Iowa Pacific owns the Saratoga & North Creek Railway, which runs tourist trains between Saratoga Springs and North Creek on tracks it leases from Warren County and the town of Corinth. It says revenue from storing oil cars will help keep the tourist train afloat.

The rail corridor north of North Creek was created during World War II, when the federal government wanted to transport titanium from the mine at Tahawus. Iowa Pacific bought the corridor’s easement several years ago from NL Industries (National Lead), which owns the now-closed mine.

State officials say they are looking into whether the state has the authority to prohibit or at least regulate the storage of oil cars along the tracks.

Ellis told the Warren County committee that the cars would not pose a threat to the environment, but critics contend that the company wants to turn the Adirondack Park into a junkyard.

The oil cars in question are known as DOT-111s, which have been involved in several disastrous accidents, including one in Lac-Megantic, Quebec, that resulted in more than 40 deaths. Many owners of DOT-111s are taking them out of service until they can decide whether to refurbish them to meet new regulations or scrap them. This has opened up a market for storing the cars.

Bauer, who opposes Iowa Pacific’s plan, said the letter will not deter him from visiting the corridor in the future.

“Protect believes that the public has the right to use this corridor, and we will continue to undertake field visits that in no way interfere with railroad operations to monitor actions that threaten the Forest Preserve and rivers of the Adirondack Park,” he said in an email.

Michaud said the railroad is prepared to take legal action against Bauer. “If he wants to ignore our letter and try his luck, so be it. We will pursue all remedies available at law to ‘protect!’ our rights.”

NOTE: John Caffry is defending Phil Brown in a lawsuit brought by landowners who claim he trespassed when he paddled through their property on Shingle Shanty Brook.

Photos by Peter Bauer: old railcars at the siding.

 

 


Phil Brown

Since 1999, Phil Brown has been Editor of the nonprofit Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.




57 Responses

  1. John Sullivan says:

    The railroad’s letter provides a glimpse of the public relations acumen that has made it such a success.

    • Boreal says:

      It reminds me of the robber baron mentality the railroads were built upon. It was a mistake to extend the RoW for another 100 years without any obvious benefit to do so. What were they thinking?

    • Russ Nelson says:

      Here’s how this goes, John: If you lay down on the tracks, and write a suicide note saying “I’m going to lay down on the tracks and put my neck on one rail”, and a train runs you over, and your heirs sue the railroad for killing you, guess what? They’ll probably negotiate a settlement, because chances are good that they will lose in court, and it’s cheaper to just knuckle under.

      Why? Because people are stupid around railroads, including people on juries. It sounds like you’re one of those people. We already know Peter Bauer is — he admitted as much.

      Stay off tracks, stay alive.

  2. Scott van Laer scottvanlaer says:

    Any truth to the rumor Iowa Pacific and Paul Smith’s College are using the same P.R. firm?

  3. Val Burditt says:

    Iowa Pacific Holdings: hahaha!!!

    Has no credence with Adirondack people. We are a select breed of tough survivalists…

    Who do they think they are threatening? An easement on our lands entitles them to SQUAT! Ziltch! Storing tankers to generate revenue to keep the train running on leased tracks? That is a bunch of HOOEY!

    They can bark up another tree…

    • Russ Nelson says:

      Val, you’re up against the laws of physics. Railroad cars are no respecter of your “select breed of tough survivalists.” When the wheels squish you, you’ll be just as dead as a wuss from New York City. The railroad rule book is two inches thick, and every rule is written in blood.

      If you’re lucky, you won’t be the cause of a new rule written in your blood. Stay off the tracks, stay alive.

    • Bruce says:

      Val,

      An easement entitles the easement holder to do anything and everything spelled out in the agreement, without interference or comment from those not a party to that agreement. I seriously doubt your name appears anywhere on it. If the easement is for railroad operations, then those operations are pretty much whatever the railroad says they are, especially where rolling stock is concerned.

  4. Phil Brown Phil Brown says:

    I heard from David Michaud, the railroad’s attorney, and updated the article to add several of his comments.

  5. Curt Austin says:

    This trespassing thing is a big deal to rail fans. I’ve been warned many times. Sometimes they mention laws dealing with terrorism. I don’t know what the actual rules are; I doubt Mr. Caffrey does either, it being a federal matter and involving the arcane rules of railroad property law. I’d be careful.

    You walked an interesting section of the corridor, the part with the 2% grade with tight turns. Both meant that full trains were split in two, and reassembled at those sidings, the Stillwater Sidings.

    I saw only one car there when I looked about a month ago – from a plane (really!) I skied up there five years ago. It was not a junkyard then.

  6. M.P. Heller says:

    Hmmmmz.

    Pete is a neighbor. Often times I don’t at all come down on the same side of an issue with him. In fact let’s be real honest here, I seldom come down on the same side of an issue with Peter.

    In this case I believe Pete is on the right side of things. So much so, that I’d drive him to the site if he so needed, would let him use my camera if needed, and would contribute to whatever legal defense fund was needed.

    Let me go on record saying that if my camera or hiking abilities can contribute in any way to telling the story of why defunct oil tankers should NOT be stored on Adirondack railways, I’d be only too willing to take up the cause of photo – documenting the issue.

    Try to run ME off Iowa Pacific. Just try. Ask Cathy Dove how it goes.

  7. Bruce says:

    I’m not contesting Peter’s right to be there or not, but what if he or anyone else gets hurt…who’s responsible? Tracks and old rail cars represent more dangers than just train movement. Is the RR responsible for maintaining a safe walkway for hikers along the tracks? I think not.

    • Richard says:

      if tracks and old rail cars represent such a dangerous thing, maybe they should be removed from PUBLIC property.

      • Bruce says:

        It’s not really public property in the leased right of way, any more than a house owned by one person and leased to another is free for use by the owner so long as the lease is in effect.

  8. Paul says:

    “In an interview with the Almanack, Mann said he does not recall seeing no-trespassing signs along the tracks, but he did see evidence that the tracks get a lot of traffic from hikers and anglers. “I don’t think it’s posted, but if it is, people are using it regularly,” he said.”

    Just because people are regularly trespassing there does not make it legal. No posted signs are required under the law. You don’t need a posted sign on your front yard to exercise your right to keep trespassers out. No matter. Written notice has been given now.

  9. Dick Carlson says:

    Who needs to trespass? The cars are right near the road. And, BTW, tourist stop all the time – walking up to the cars in the ROW to take pictures.

    • Phil Brown Phil Brown says:

      Dick, the cars that they photographed were not the ones near North Creek; they were on a siding near the Boreas River.

  10. Mary Warner Marien says:

    Which federal and.or state agencies are tasked with keeping the rr companies from turning the tracks into attractive nuisances and/or environmental hazards?

    I’m not referring to the proposed storage of oil tankers, but what, from the photos, appear to be an accumulation of scrap. Do the rrs have the proper State and local licenses for scrap?

    • Curt Austin says:

      Railroads are under federal jurisdiction, administered by the Surface Transportation Board (was once the ICC). Exclusively? None of us are experts, but federal preemption is not as simple as it seems. Power to persuade exists outside the law, whatever it really says. NYSDOT has a railroad division, but I don’t know if they have any regulatory teeth.

      The cars pictured are apparently being preserved as historical items, like having a ’57 Chevy in your back yard under a tarp. There are many more in North Creek. Looks like hell to us, but rail fans enjoy old cars and old locomotives. The trains that SNCR actually runs are pretty old.

  11. I wonder why they are threatening Bauer but not Mann. Could it be because Bauer is an activist they hate and Mann is a journalist they want to suck up to? Why aren’t they threatening ALL “trespassers”?

    • James Falcsik says:

      Mr. Bauer is in the photo that accompanied the article. This is like a “shot over the bow”. The railroad is letting him know he is trespassing with what is essentially a written warning. It would not surprise me if in the weeks to come the line is clearly labeled and posted with signs so there are no loopholes or question about legality. Going forward it would be a good idea to stay off the tracks.

      To answer another post, the storage of rail cars, in any condition, is a normal function of railroad operation. You can find this as a listed activity on FRA web pages. It will remain a railroad as long as it is not formally abandoned.

  12. Curt Austin says:

    Curiosity got the better of me, so I’ve looked at section 140 of the NY Penal Code.

    140:10 – “A person is guilty of criminal trespass in the third degree when he
    knowingly enters or remains unlawfully in a building or upon real
    property … where the property consists of a right-of-way or yard of a
    railroad or rapid transit railroad which has been designated and
    conspicuously posted as a no-trespass railroad zone.” (Class B Misdemeanor)

    No signs, no crime. Within the past six months or less, I’ve looked at the Tahawus corridor at all the crossings beyond North River – no signs.

    • Paul says:

      Might want to also look at non-criminal trespass as well. Either way once notice has been given, signs or no signs, it’s a crime. If the head of the RR shows up in your yard and you tell him to leave or he comes back after you have told him that he is trespassing you can have him arrested. You don’t need any posters. He has the same rights on his companies property.

    • Russ Nelson says:

      Curt, I highly recommend that you tell Iowa Pacific that you intend to trespass on their tracks, and when and where you will do it. Since you seem quite confident that you are correct about being able to trespass where there are no signs, I’m SURE that you will do this.

      Please report back on Iowa Pacific’s and the county sheriff or state police’s actions in this regard. We’ll all be interested to see how large is the fine you’ll be assessed.

      If we don’t hear back from you, then I think that will be evidence enough that you lacked the confidence in your own claims.

      • Curt Austin says:

        Russ! I went to the actual source of the pertinent NY criminal law, and quoted it here. I tried finding a federal law, but failed – you could have helped find one, but you chose to get snide instead. Your railfan audience enjoyed it, perhaps, but it’s not effective rhetoric.

        But the good news, for you, is that It so happens that I have recently walked on the corridor, north and south of 28N, before this report was published. There were no signs, so no Section 140 violation. Let’s see if Iowa Pacific commits another public relations blunder: “Railroad operator threatens to have trail advocate arrested.”

  13. George L. says:

    I wonder if a railroad is defined as tracks with moving cars.

    Perhaps there is a point where it ceases to be a railroad.

    i.e. There is a difference between an interstate highway and a parking lot.

    • Paul says:

      I think it probably just needs to be used for some RR activity. For example – storing RR cars. It could be dangerous so for liability reasons alone you should be allowed to keep people off the tracks and out of the area. He could have taken a picture from outside the easement. He should consider getting one of those personal drones for his surveillance work? Probably keep an eye on more of the area and more of the activity he is concerned about that way.

    • Paul says:

      Even if it is a rail yard (like a parking lot) you still gotta drive (roll) in and out.

  14. Chris Shaw says:

    I propose a well-publicized mass walk up the corridor from North Woods Club Road, where I fished for years. It amazes me this bone-headed idea hasn’t yet gotten thrown out. Gotta make noise, I guess. Who’s in?

  15. Wally Elton Wally says:

    I agree with Chris. Could we get 100 people to walk there at once?

  16. Paul says:

    If there is an issue with lack of posting I am sure these articles have taken care of that issue for the RR company. Posted signs themselves can be an eyesore so I think if the put a sign at a few important spots where folks have been trespassing that will do.

  17. Paul says:

    “Given that there is currently little or no rail traffic on that portion of your railroad, that there has not been any for decades, and that it is unlikely that there will be any in the future, it is extremely improbable that such unreasonable interference will occur,””

    Aren’t some of these stories specifically about how the RR company has plans to (very soon) use these areas to store RR cars. So there will be activity.

    ““If you hold an easement, that does not give you the right to exclude the owner of the property,” Caffry said. “You get to use the property; you don’t get exclusive use of it.””

    Depends on what the terms of the easement are. The owner can lease whatever rights they want, including exclusive use.

    • Phil Brown says:

      John Caffry says the easement agreement does not grant exclusive use.

      • Paul says:

        Phil, thanks. That is pretty amazing. If the agreement does not allow the RR to keep people off the corridor how could they ever run a safe operation? What kind of insurance company would give them a policy?

        Do you have a link to the easement agreement?

      • Russ Nelson says:

        The principle being trespass on railroads being illegal exists regardless of the terms of the ownership of the land underneath the rails. Trespass on railroads is not safe, and the law exists to underline that point. You, of all people, Phil, ought to know that.

  18. another concerned citizen says:

    That RR line is worthless since the company couldn’t make money on it.

    The tank cars that they want to store there have a negative value since the cost to clean them before scrapping is more than their scrap value. That is why the RR is being paid to take them.

    What if the RR stores the cars, then separates that line into a new company that then declares bankruptcy?

    Now, forward a few years. Since the owner is bankrupt, and perhaps out of business, the line and the cars get no maintenance.

    The cars have become so rusted that they won’t move. Also, the line gets washed out in a few places, toppling the cars there. (Remember the locomotive that toppled off the track a few years ago?)

    Guess who will have to pay to clean this up.

    • chris says:

      Good points!

      Old car disposal is non-trivial (read “expensive”) so you know there are folks paid to do cost-benefit scenarios like this. I’m sure that every industrial company with a lot or outdated and expensive-to-dispose-of assets have just this plan somewhere.

  19. Mike says:

    Bauer, though annoying, can still serve a purpose!

  20. ADKerDon says:

    Bauer should have been thrown in jail years ago. His only goal is the complete destruction of the economy of the Adirondacks and the destruction of its natural resources. His hatred of our wildlife and outdoor recreation is legendary. Only the fools from NYC believe anything he says.

  21. Boreal says:

    Does anyone know the width of the RoW corridor? Perhaps someone (DEC? IP?) could flag the perimeter of the RoW near the cars to show where one can legally walk.

    • Paul says:

      It is probably a pretty wide ROW, at least as wide as what is cleared since you can’t clear it if it is outside the ROW. To get outside the ROW you would be in the woods.

    • Curt Austin says:

      I have a copy of the 1989 deed (for the transfer from the federal gov’t to NL). The corridor is defined as 50 feet either side of the centerline in most places – a 100-foot width. I think it is 200 feet wide at the Stillwater siding, which I suspect means it extends to the edge of the Boreas River on the east.

      As far as New York law is concerned, it is legal to walk there since there are no signs (yet). Other laws may apply, and perhaps the lease terms governing the 14 miles originally on state land. BTW, that lease has been extended a few times, currently to 2062. In any case, I wouldn’t publish any selfies.

      • Russ Nelson says:

        No, Curt, it is not legal to walk there. Railroads do not need to post their land, since it is presumed to be actively used, and thus trespass is never legal.

        • Curt Austin says:

          I stand corrected. There is a NY railroad-related law (Section 83) that says “… No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks…” But no fine is given. There are different rules for people with horses, for which a $10 fine is mentioned. Seems anachronistic, except that rules about snowmobiles also appear, for which the fine is $100 (and are particularly strict).

          Whether trespassing or not, one is always subject to civil action concerning damages.

          I searched for federal laws/regulations, but only found some statements about it being a matter of state trespassing laws. I’m sure there must be some.

          • chris says:

            Is it possible to have an ROW cut right through a public park that is open to navigation by foot and have it off limits?

            So no one can legally cross the tracks anywhere in the park?

      • Paul says:

        Curt in NY it isn’t required to post your land against trespass. It makes sense in places where the border isn’t obvious. But if there is a track and a ROW cut out it is clearly not a public thoroughfare. You don’t need a posted sign on your front door to charge someone who goes through it w/o your permission with trespass.

  22. Todd Eastman says:

    Iowa Pacific has picked a fight with the wrong person!

    Go get’em Peter!

  23. Todd Eastman says:

    Start water quality sampling for toxic runoff…

  24. HikerVA says:

    Todd’s nailed it –
    In addition, begin soil sampling for toxins including petrochemicals, heavy metals, lead (chipped paint, etc.). Tackle these clowns on scientific and indisputable, terms.
    The EPA has teeth.

  25. Russ Nelson says:

    I expect that no matter who owns the property, the railroad operator is allowed, nay expected, to press railroad trespass against any trespassers. “Railroad trespass” is specially called out in New York State Law, and has higher penalties than other kind of trespass. Why? Because trespass on a railroad should not be a death sentence, so that people should have a strong incentive (higher penalties) to stay off the tracks.

    Unless you work for the railroad, you are not trained to dwell on railroad tracks. Cross them at designated crossings, yes. Walk along them, no. You may think it’s safe. Hundreds of people every year think it’s safe, and they get squished by trains like they were bugs.

    Bauer’s response to Iowa Pacific rebuts the claim (not made by him here) that the cars will be an eyesore. If that is true, then he can inspect the cars from off of the right-of-way. If he claims trespass by necessity to inspect the tracks or anything about them, including cars currently stored on the tracks, then clearly anything stored on the tracks will be visible only from the tracks.

  26. Boreal says:

    Just to play Devil’s Advocate here:

    1. If a company leases a dangerous or even lethal RoW corridor that travels mainly through public recreation / hunting land, shouldn’t they be obliged to have signage or fencing along the corridor to inform the public where their RoW starts/ends? This would be referred to as duty to warn.

    2. Shouldn’t active corridors be differentiated from abandoned railways?

    3. Are rail car enthusiasts taking pictures viewed with the same disdain and hostility as activists? If an enthusiast and an activist were standing side-by-side taking pix, would prosecution be meted out equally?

    4. Did NYS, when renewing the RoW, intend the corridor to act as a wall to keep recreationists from crossing from one side to the other? Is it just as “illegal” to cross the tracks as is to walk alongside them? Is it safer to cross the tracks than to walk along them? I would think the restrictions would be stricter if one were literally on the tracks as opposed to just being in the corridor.

    5. If a corridor is so dangerous, shouldn’t it be patrolled?

    Selective enforcement and prosecution ultimately leads to confusion in a population. I think NYS needs to look into the matter and give some guidance to both IP and the general population of the area.

    • Bruce says:

      Boreal,

      Your point number 3. Rail enthusiasts are generally treated the same as other trespassers, unless they have permission for engaging in a specific purpose within the leased corridor. Yes, it does happen, but not frequently. I have photographed moving trains from within 30 ft. of the tracks in places where I had to walk through tunnels to get to the right spot. If something had happened, or I had been caught, it would have been my dime.

      I did have permission to photograph the ASR’s locos and rolling stock close up while everything was sitting still at Thendara station.

      • Boreal says:

        Wouldn’t it be great if railroads would put their efforts into creating rail museums open to the public instead of junkyards off-limits to the public?

        • Paul says:

          They do. The B&O railroad museum in Baltimore is a great museum. It is private now (part of the Smithsonian so maybe not all private?) but it was set up by the RR originally. They also have other things to deal with like upgrading cars for safety reasons and then having to deal with what to do with the obsolete cars. Any place that stores these cars should be off limits to the public that is just common sense.

          • Bruce says:

            Boreal,

            I’m guessing many states have RR museums. There’s Steamtown in Scranton, Pa., The Virginia Transportation museum in Roanoke, Va., Spencer Shops in Salisbury, NC. Except for Steamtown which is a federal historical facility and one of the best, most are operated by state governments and volunteers.

            Wasn’t there something in North Creek or somewhere nearby; or was that just a small scenic RR?