Commission still confounded by CKC conundrum

Has no plans for trail but doesn't want

to give up rights

Staff reporter

After members of Central Kansas Conservancy met with Marion County Commission Monday afternoon, commission members appeared to be more confused than before about the rights of the organization and how it affects Marion County landowners.

According to CKC attorney Mike Mills, the CKC was waiting for others to develop the trail and wasn't going to assume any responsibility for the trail even though Mills claims it belongs to the CKC.

Mills spoke on behalf of the group, and based most of his information on court cases, which he read to the commission. Mills said those cases proved that the CKC had rights to the surface of the land but was not responsible for the taxes.

"We have never claimed in the rails to trails group to own the real estate," Mills said. Adjoining landowners own the land under the rights-of-way and can do what they want with the minerals without obtaining permission from the CKC but the group does have rights to the surface.

"We have exclusive ownership of that land," he said.

Mills faulted Marion County Appraiser Cindy Magill for taxing property owners for the rights-of-way, saying no taxes should be charged.

"The feds and supreme court have said it's there forever," Mills said, referring to the conversion of railroad banks to trails.

The trail that goes through Marion County that the CKC contends is theirs but refuses to accept any responsibility for upkeep or paying taxes, is called the Sunflower Santa Fe Trail.

This trail has kept property owners riled up because they cannot use the former railroad right-of-way as they see fit, but are paying taxes for it.

One pivotal moment was when Mills said the CKC had an agreement with Marion County for noxious weed control with the county spraying the trail and charging the organization.

County noxious weed director Rollin Schmidt was in attendance at the meeting and when asked by commissioner Randy Dallke if he was aware of a contract, Schmidt said he did not have one.

Landowner and CKC proponent Angy Jost of rural Hillsboro, showed the commission and Schmidt a copy of a letter that was sent by a previous noxious weed director regarding the collection for past due charges. She also had a copy of an agreement that was signed in 1999 that was valid for one year. Mills said there was an ongoing contract but did not have a copy of it with him.

Schmidt said he hadn't been spraying the rights-of-way because previous bills had not been paid.

By law, Schmidt could apply the unpaid balances to the properties but it would then be the property owners' responsibilities which wasn't fair to them. He then asked Mills if the CKC would be willing to sign a contract, guaranteeing payment. Mills agreed that he would.

Later in the meeting when a member of the audience complained that noxious weeds had not been sprayed on the trail, Mills said he was under the impression that musk thistle had been sprayed.

"I sent two bills to Mr. (Ron) Peters that weren't paid so we put a lean on the property," Schmidt said.

Mills responded that it was before he was involved with the group which caused grumbling from those in attendance.

How CKC came to be

Mills said the group formed because members were interested in developing trails in central Kansas. The CKC was organized in the late 1990s, and was incorporated as a non-profit entity for the primary purpose of developing trails.

Mills continued that he was probably the most knowledgeable in Kansas law right now regarding trail development and was contacted by CKC to represent them. He said he was working pro bono or without pay.

In order for the CKC to obtain rights-of-way, a railroad company agrees to abandon its tracks. CKC then negotiates with the company and a contract is created with Mills saying the railroad was responsible for providing liability insurance.

CKC doesn't acknowledge responsibilities

Another issue with the CKC and landowners has been liability. State statute indicates that the CKC is to provide liability insurance.

An incident a few years ago when several horses fell in a sink hole on the neglected right-of- way, caused the property owner to use his own money to fill the hole so no other incident could occur because the CKC had not taken care of the surface area.

Commission chairman Bob Hein told Mills that the CKC hadn't made any improvements or presented any plans since 1997. Mills said he knows and the group wasn't required to do that.

"The state law was found to be unconstitutional," Mills said.

"What does CKC plan to do? Let it set for another 12 years?" asked Dallke.

"The CKC is waiting for local people to develop it," Mills said. He said the group approached the City of Marion and agreed to let the city use the trail and lease the right-of-way to the city.

The city has developed part of a trail which eventually will extend to north U.S.-256.

Mills continued that the City of Lindsborg has completed a trail which was funded through a Kansas Department of Transportation TEA-21 program.

Four people control the land

Hein then asked the number of people on the CKC board and how often they met. Mills said the board met monthly and there were four members, including himself and Ron Peters, who accompanied Mills to the meeting.

Commissioner Dan Holub asked Mills the number of CKC members. Mills said the group no longer had an active membership and no longer collected dues but at one time there were 125 members.

"So what you're saying is that four people are holding the rights to this trail and telling other people what can and can't be done?" Dallke asked.

"Basically that's true," Mills responded. "We don't want to come and tell people what to do with the trail. If they're not interested, we're not going to push it on them. We'll hold it until such time people are interested or the railroad is reinstated."

Jost cited a donative quit claim deed which was made to enforce CKC's assuming the responsibilities of paying the taxes and covering liability issues. Mills responded that there was a separate agreement between the railroad and CKC which was not public.

"What happens if the railroad wants to abandon the land? Who would own the rights-of-way?" Holub asked. Mills said the surface transportation board would have to agree that it can be abandoned. The rights-of-way would be extinguished and the landowners would get the properties, including the rights-of-way.

Rural Marion resident Harry Bennett said the railroad rights-of-way can stay in place for future use by the railroad.

"We'll soon be at $4 per gallon gasoline and we have a diminishing supply of fossil fuel," he said, implying that railroads could make a comeback.

A comment was made by Allen Schlehuber that typically when railroads construct new tracks they don't go through the same area.

Rural Hillsboro resident Kevin Jost said the question the commission needed to ask the trail group was "After 12 years, will CKC acknowledge state law?"

"The answer is fairly obvious," Kevin Jost said. "You know what the landowners' wishes are."

"We're not required to (follow state law)," Mills said.

"You're suggesting that state law should not be followed because it may not be constitutional," Angy Jost said to Mills. "You feel you don't have to follow these rules if they are burdensome."

Later in the meeting, Holub asked how four people were going to come up with the money to meet the group's obligations?

"Where is the money coming from?" Holub asked.

Mills said group members were doing this as charity work, similar to contributing to a church or university.

Dallke then said he wanted to give his formal opinion.

"This doesn't look good," he said. "We have landowners paying the taxes.

"It looks like you're doing railbanking in your pocket. If this isn't for monetary reasons, why else would you do it?"

"You're making the accusation that we're trying to make money from this. We're doing this as a charitable thing," Mills said.

He continued that McPherson County wasn't interested in the trail development business and wasn't clear why the CKC had been contacted by the county.

"If we asked voters their opinions on the trail and they vote it down, would you go away?" Holub asked.

"No," Mills said.

He continued that he was aware of a farmer who is using the railbed as a field and the CKC could "kick him off but we won't."

"The sheriff here said he would harass us," Ron Peters said.

After the two groups left the meeting, Holub said he was concerned about the information. It's different every time he has heard the story from CKC.

"There's got to be more to this than a post office box and four people," Holub said.