County opts to bide time on private crossing issue

Jana Mathia, Gazette Reporter | Apr 05, 20180

It takes only seconds to drive over a railroad crossing. But getting a permit for that crossing is not such an easy matter. At least that is the experience for Richard Old of Pullman who has been working on a satisfactory crossing permit for five years and still has not found a solution.

“This is really a sloppy document,” said Old of the most recent Private Railroad Crossing Easement given to him by Washington Department of Transportation.

Despite his disapproval, it may not get any better.

“WSDOT has done everything in its power to address Mr. Old’s concerns,” stated Janet Matkin, communication manager, WSDOT rail, freight and ports division, in an email with the Gazette.

“We must follow the law and we must minimize the risk as stewards of public lands.

We cannot provide an easement in perpetuity, since the future of this railroad is still uncertain.

Likewise, the State cannot assume liability at a private crossing being used by citizens for their personal use.

Instead, we are asking Mr. Old to take responsibility for the upkeep, safety and use of his private driveway across the railroad property.

It is a fair and standard agreement that addresses both the interests of the State and the private property owner.”

Old is a landowner who addressed Whitman County commissioners in January about his issues with getting a permit at a crossing his family has been using for 80 years. He discovered his private crossing was closed in 2013 which prevented him from building on his family’s land. When he received the crossing permit agreement from WSDOT, he had several issues with the permit agreement including insurance, perpetuity, un-specified fees and indemnification.

While this is likely to be an issue for many property owners in Whitman County with banks wanting crossing permits for anyone that uses a private crossing to access their property, Old’s position is further confounded by the fact the railroad he crosses, the PCC, has not been an active rail in more than 10 years. The railroad between Pullman and Colfax has been out of service since a fire destroyed a trestle just east of Colfax in 2006. That trestle has never been rebuilt. For a time the line was used to store empty rail cars, but has not been a transportation route.

“The main reason the state bought the PCC was a concern that it might otherwise have been abandoned. WSDOT maintains the PCC as part of its strategy to support cost-effective freight transportation alternatives for our state’s farmers and other shippers. So, while there is currently no rail service on this part of the line, WSDOT is charged to preserve the corridor intact so that service could be resumed at some point in the future. There has been some talk about the possibility of using it as a recreational trail in the interim, but no decision to do so has been made,” Matkin stated.

After that visit to commissioners and a conversation with Sen. Mark Schoesler’s office, WSDOT switched to issuing a crossing easement instead of requiring a permit and insurance. The original permit required property owners to obtain $4 million insurance for the crossing.

The new easement does not require insurance, but does state that if rail service resumed or the property is rail banked and put to interim trail use, the property owner may be required to “obtain and maintain insurance adequate to protect grantor (WSDOT) from the increased risk associated with such a change of use.”

Old said this is just “ducking” the insurance issue.

“Basically it’s no better than the other one,” Old said of the new easement agreement. “May be worse in some regards.”

“If these railroad tracks were to be returned to active use or be rail banked, the potential for added risk might lead the State to require additional insurance. This insurance is not for the property itself, but rather for the use of the property, to ensure that Mr. Old is responsible for vehicles, equipment, and people who use his private driveway across the tracks,” Matkin explained.

“The railroad property, including the 100 feet of right-of-way adjoining the tracks, is owned by the State of Washington.

If someone was injured at this private crossing, they undoubtedly would look to the property owner to assume responsibility, regardless of the fault.

As a result of this exposure to risk, the State of Washington is clarifying through this proposed easement agreement that since Mr. Old is using the crossing for his private use, he is responsible for any liability.

This is standard for any private land owner who has another party seeking an easement to access their property.

BNSF Railway and Union Pacific have similar agreements with property owners using private crossings throughout their corridors.

All such agreements include indemnification language similar to that included in the one offered to Mr. Old.”

Old said the easement, which is being prepared by the attorney general’s office for WSDOT, is strictly for the sole benefit of the state with no protection or consideration of the citizen. He pointed to the agreement issued by the county for property owners along the Bill Chipman Trail as a good example of protection for both sides. He forwarded a copy of the crossing agreement for the Chipman Trail to his contacts at WSDOT, but never received any reply.

Old has asked Whitman County commissioners for another possible solution. They discussed it at a March 5 workshop and decided to wait for the process with WSDOT to play out. Commissioners noted that while they are very sympathetic to Old’s position, they wanted “compelling public interest” before the county would take action. They discussed if it was in the public interest to extend the county road to include the crossing.