On Windy Hill: Commissioners plot litigation against derelict trail volunteers – Osage County Online | Osage County News

On Windy Hill: Commissioners plot litigation against derelict trail volunteers

Monday, I sat through a discussion at a meeting of the Osage County commissioners that was similar to that I’ve probably heard at least a dozen times over the last eight years or so. The commissioners met with Jim Foster, longtime Osage County rails-to-trails opponent. Over the years, Jim has confronted commissioners on a regular basis, usually presenting a legal hook or maneuver that he seems to think will convince them to have taxpayers foot the bill for a legal battle against the trail sponsor of the Flint Hills Nature Trail and the Landon Nature Trail, portions of which are in Osage County. The permit holder for those trails is the Kanza Rail-Trails Conservancy.

What was different about this meeting than those in the past was the commissioners indicated a willingness to spend county taxpayer money to litigate to remove the KRTC’s right to operate the trails in the county. Discussed was whether to sue the KRTC or the railroad or possibly the federal government, as one commissioner says he believes rails-to-trails are theft of land. The rails-to-trails system was established by federal law. The commissioners took no action, though, only to direct the county counselor to further research the cost of litigation of either taking the issue to district court or to the Surface Transportation Board.

Foster’s hook this time was a recent district court case in Shawnee County involving KRTC, but which he said was dismissed by the judge. He said the judge’s ruling gave the much needed “missing piece” to the litigation puzzle.

While thinking about how to write up Monday’s discussion, I thought about how the public always misses out on the full thought processes that lead up to decisions being made by their elected officials. Sure, a reporter can write a story, pick out what they might think are the important or pertinent quotes, but the reader doesn’t really get the full experience of watching elected officials hammer out their decisions.

And hammer they did on Monday. Unfortunately, in my opinion, their hammering in this instance is nothing short of bullying. It wasn’t unexpected, though, as I’ve watched every commission in the last few years take their turn at bullying the volunteer trail builders.

Frankly, as I grow older, I’m tiring of government bullies. I’ve seen it happen at all levels of government, and lately the antics of our state elected officials have left me just downright disgusted with government. One of my New Year’s resolutions is to stop being quiet when I see government bullying – but that’s a topic for another On Windy Hill.

As a proponent of government openness laws, I believe being able to watch elected officials’ deliberation process is one safeguard against corruption and bullying, as long as the public is watching. Citizens might not be able to change an elected official’s mind about an issue, but at least they can witness the reasons given by the elected for making their decisions. But most people don’t get to witness their government at work; most don’t have time to sit all morning in a county commission meeting.

I have strong opinions about the rail trails in Osage County. I truly believe these trails will eventually offer a benefit to our county that will last for decades. But that, too, is for another column. My opinions about this are so strong, though, I thought this strategy session for the county possibly spending taxpayer money for litigation against the trail group, the railroad or the federal government, was important to record for future public knowledge.

As I could not make a complete record if I only wrote a story, I decided as my Christmas gift to our readers who could not witness these deliberations, and who might have never had the experience of sitting in on a commission meeting when Jim Foster has the floor, I would transcribe that portion of Monday’s meeting. It’s long reading, but those Osage County citizens who are interested in the trails might be interested in their commissioners’ opinions of the trails.

So during the holiday, maybe you’ll find time to review the 7,000 words or so the commissioners used to convince themselves to continue to investigate the possibility of litigation against KRTC, the railroad or the federal government.

My transcription talents are sloppy, so there are likely a few words and punctuation out of place, and as is common during government meetings, there are many times when people think they have the most important thing to say and talk over each other, so some of it was not understandable. I left blanks or question marks in those places I couldn’t understand words being said, but for the most part I think it’s fairly accurate.

The following people are identified in the transcript by initials: KK, commissioner Ken Kuykendall; JF, Jim Foster; CC, Caleb Crook, county counselor; GA, commissioner Gaylord Anderson; CM, commissioner Carl Meyer; RB, Osage County Clerk Rhonda Beets; WW, me.

Commissioner Kuykendall opened the floor to Jim Foster at 9 a.m. Dec. 15, 2014:

JF: Shawnee County district court had their county and a private individual took the rail trail issue to court the private individual was arguing about a fence.

Yeah, OK well, the judge went through and looked at all of the fence law in its entirety how it ties to what they try to do, what it is, he went through the entire thing back to when including, I simply got the railroad law book and he started back at the beginning of the dark ages.

What they ended up with if you have fence three sides, every foot of that fence on that trail on that right of way is was the railroad’s and is the trails’ responsibility.

Which is exactly what I have said.

He also made another comment and his comment he left it that these people were simply no more than caretakers and it was due to reactivation and it had to be ??? with risk.

With that the way he followed and the way he did on the research it followed the same thing that’s been done in the Supreme Court which said the original agreements are intact, original laws and original conditions are intact, so we got it clear to the Supreme Court saying the same thing that the circuit court judge says.

Shawnee County and the counselor that is listed there, him and I have had very good conversations, he’s suffered me a great deal, we discussed some of the same conditions we have talked about here, I think the only way he could protect his client from, which is the county, from taking action, is to abandon the case, because Shawnee County was taking on the two-year rule of develop it or lose it.

Well it followed the same line he used in the fence deal, being held railroad ready, that trips it all the way back to as the railroad. It only had a given time to actually build it and use it, they are set up to maintain and take care of it and they’re not.

That puts it back to the railroad, can’t just hold it to hold it, which was in the rulings and is part of the words, they can’t just hold it to hold it, so it’s being held it’s not being maintained in any form in our situation what have you.

But going back to there, we tripped over that thing we talked about the 10-year rule, the county itself was the one who had to do it.

The most important thing was when Shawnee County pulled out, that private individual stepped up and said hey I’ll take it on, hey we need a ruling, hey yeah, I’ll, and the judge says no you can’t do it, so it had to be done by the county, so it has to involve a government entity to take care of what I call right of way ingress, because I can, I can … on my piece of dirt but can’t move anything on someone else’s pieces of dirt.

Well, the trail group I have been reminding those people since the very first trail manager, over this is what railroad promises, this is what the railroad agreed to, you’ve agreed to take care of it, and that’s in that ruling.

So the any trail manager from the very first one until now, including testimony I gave in the legislature that told the same thing by me all this time. With witnesses on record, so they can’t say they didn’t know that you say there’s something that needs to be done, they’ve been told that but decided to deliberately ignore it.

But there’s another issue to this, was as we tried to say before we take it before, the judge says I can’t do that by myself in that case, and that says the county has to step up to do it.

I can go all the way back to Mersman, Christensen and Hutchison when we tried to get something done about the right of way when the rock was removed from Osage City to Herington, which at the time, according to that ruling and according to the federal regulator, and federal regulator in their Supreme Court ruling they were taken to task about, confirms it is a local control issue. So from that moment forward I’ve been asking for help from the proper people to get it done, and I know this is the last missing piece.

KK: Where have you gotten with Farm Bureau, anywhere? We can’t get their Farm Bureau lawyer to call us back.

JF: Well, Farm Bureau lawyer calling back takes a little doing, and they are more inclined to take this up on a tax issue because a tax issue is what they have stepped up with. They are not as interested in what is an administrative action, which is taking it back to the railroad. And they don’t particularly want to come down here and because that makes them look bad and they don’t want to be that way.

KK: You haven’t got him to call you back?

CC: I’ve left multiple messages and have not got a call back yet.

KK: Well he won’t even call back and tell us he don’t want to do nothing, is my point … he won’t even say hey to us.

JF: I’ve tried to impress upon him we need help to do that. He’s referred me to a lawyer in Missouri that has won lots of these cases, but the guy in Missouri doesn’t have a Kansas connection to be able to practice law in Kansas with.

CC: That’s easy to do.

JF: It’s easy to do but essentially I have to wait until I have every piece of the puzzle in place where it can’t be disconnected and that’s what this case does and it leaves us to where all of us understand what’s at stake.

CC: I’d still have … one is they have an obligation to the fencing, where this case actually weakened the law but still said they have an obligation to the fencing.

The law said whatever fencing is on the other three sides they have to do that type, they judge said no that’s too vague they only have to have the railroad ready, but he said yeah they still have to do that.

The problem that I struggle with, so that says we can get an injunction to tell them, either if a homeowner went out and put up fencing to that pay that fencing would do it, but I still haven’t seen anything that gets to there other than the Wyoming case, which was different, those were created in different manner …

JF: It’s in a different manner, but it’s right on the same lines this is where they pull them back.

CC: … the cases I’ve seen in Kansas law, just say rails to trail you have to do it, it doesn’t say you haven’t done it so you lose your, so that’s taking it a step past, which I’m not but…

JF: in the case of …. it lists how that right of way can be revoked and revoked for the issues I’ve been talking about and the thing of it is what they have done is they’ve put it on the county so the county has to act, so I can’t do that myself.

CC: Yeah, I think Jim has represented very accurately what the Shawnee County court said. The facts of they haven’t done this or that has to come. I think we need a group of landowners to be part of this. Obviously you’re going to be part of it, I guess that’s what I was hoping to get from Farm Bureau.

JF: Well that’s what I’ve been hoping to get from Farm Bureau, but we can gather together and fight the people that need to be fighted and that’s the irresponsible people that haven’t lived up to their agreements and we all know they haven’t.

KK: This is just a what if I’m asking Gaylord, so say we have three or four guys saying I own property here and they’re not keeping the fence up, just using the fence up as an example, other things you could do, like noxious weeds, this and that, but the fence would be relative easy one probably because they don’t do nothing with fences.

CC: Noxious weeds, litter, I think you throw the other ones in by the way, probably.

KK: Just say Jim, whoever, the county would add onto that and go to court here or Topeka or wherever?

CC: Here.

KK: Even if we win it though, if you win it, that’ll force them to build new fence, or what would you get out of it?

CC: Yes it would force them to build new fence.

KK: Just on those people or who signed on or across the whole county?

CCC: That is an open question.

KK: Is that up to the judge or is that up to what we ask for.

cc If we don’t ask for it we’re not going to get it, if we ask for it’s up to the judge to decide if he has authority to grant it to others than those in the suit. There’s a chance you can, the county has standing in that issue and you know this is a Shawnee County district court case, so our district court judge could say I disagree with that district. We don’t have the Supreme Court ruling on this particular issue. I agree with what the district court judge says, so I don’t anticipate a different ruling than that. It’s possible.

KK: So in Shawnee County, the rail trail aint building new fences for everybody.

CC: No, I don’t know if it’s stated that way. The way I read it the judge said yes they have an obligation, this was a motion for summary judgment, so I have to rule on the legal issue I guess they have an obligation to do it, is the standard to meet, I don’t have the facts in front of me to rule specifically. I don’t know where it went after that.

JF: I know the parties involved including the man who brought the suit so I got kind of the behind the story deal on this, with the way the judge assembled that ruling, it left it an open ended question and an open ended deal.

The man took it to court because he wanted the trail to build a fence on the right of way not because of there were the other ones purpose were, just because he wanted a fence and he lost, so he thinks he’s lost and he’s mad about losing. Well he couldn’t got a fence built any other way for any other reason, but what he did was it won it for us that have a three sided fence, that have the rest of it that declared the rest of this deal so by having this common right of way and right of way ingress, you rule that on this particular entire section it affects the entire section it affects the whole thing.

CC: I agree, once they …

KK: It’s – and is the ones in Shawnee County the same people we’d be dealng with?

JF: It’s the same people we’d be dealing with.

Mumbled from audience: Kanza Rails to trails, pretty sure it is, I guess.

KK: Who’s their local guy anymore, you know, Jim?

JF: Oh, they change so often it’s almost not worth keeping track of.

KK: We had complaints when the shaker trucks were driving up and down it, people were saying oh the shaker trucks are ruining the trail, we couldn’t, Virgil Sellers didn’t want to even, he didn’t know nothing about it, is who we’ve always asked questions to, I mean that was kind of a thing in their favor of hey somebody’s driving down your trail wrecking it, and we could find nobody to inform.

JF: The thing that happened in the neighboring county to the west, where the guy got in his four wheel drive pickup to chase out and killed the guy, that was because the trail would not step up and file a complaint with the sheriff’s department so the sheriff could go out and do that. So we’ve had life and death issues on this and there is things about this, so going back to, if you look at the logic of how the judge got to his decision and how he used the words he used with it, I can’t find a flaw in his logic including this back to taking it away from the railroad because it is a railroad right of way so says the court, so says the federal regulator and so says the federal regulator in the Supreme Court. So I’ve got the cases that tie all of these together because just because you want to meet right here, most of that has been explored and talked about in these other rulings and this other stuff

GA:  So if we were to do the same thing that Shawnee County did here, what would be involved with that?

CC: They had, we would need some landowners to provide the facts.

KK: And the fact is hey they’re not building a fence or keeping fence up. Do the landowners have to have complained directly to them prior, saying hey build us a new fence and then turned down.

CC: Probably.

KK: And they haven’t done that yet

JF: I haven’t, they have essentially done that in every time that I’ve done come out and fix my fence, no they won’t.

KK: I mean do we have some way of proving that, I mean, I don’t mean we, you or the other landowners?

JF: Chuck Musick and his fence view, they come up and said, yeah, that may be ours and we aint fixin’ it.

KK: Yeah, but that was one, I mean if you’re going to court, you want five or six of these would be better, I mean have we done all the ground work.

JF: Well that’s what we need to be doing instead of.

KK: And that’s why I’m asking, we need to know who to complain directly to and say hey we got a fence that aint no good and then county then needs to complain and say fix the fences and the individual landowners and then in six months from now when they haven’t done it we’d have a stronger basis, I’m looking at my lawyer now.

CC: Yes, yes.

KK: You get my point

JF: I get your point on that exactly, there is strength in numbers but there’s a secondary issue on that of Shawnee County, if they’re not maintaining the trail at all then they’ve lost the ability to have the trail because it violates ? railroad ???

KK: This one here, the one in front of you, they haven’t done nothing to it forever.

JF: They’ve done nothing.

KK: The one over here, they can make the argument they’ve done some things to it.

JF: They’ve done some things to it, but at the same time we’re back to they’ve took it apart and done it different ways and we can also make the point it’s not railroad ready.

KK: I see your point there

JF: If it’s not railroad ready it breaks that original contract of having it done, and everybody from start to finish says original makes a difference.

GA:  So do we need to fight this fence issue before we address the other issue, in your opinion.

JF: I say if we’re going to do anything let’s take the right of way back because the fence issue is a combination of the fence issue only proves the other that proves the other neglect. And we all know this has been neglected.

GA:  What’s the process of doing that?

CC: We could ask for it in state court.

KK: And that’s here?

CC: That’s here, yeah, district court. My feeling is, not just feeling, from research, I talked to who you talked to at Surface Transportation Board. The surface transportation has the authority to remove their rails to trails sponsor, they absolutely do have that authority, which is the same guy that had emails from you.

JF: Thank you for making that contact. That is progress.

KK: He said there aint no way in hell we’re ever going to pull those permits.

CC: He said, I don’t, I’m not going to say this would happen to every single one, I’ve been here a long time, but I’ve never seen one where they actually removed them as a trail sponsor, he said you can certainly do it, you better have your ducks in a row and basically said good luck.

JF: There’s the issue of having your ducks in a row, when you have read as many of these as I have read, you can almost see in the first couple of paragraphs, this isn’t going to go anywhere, so if you do it right and do it correctly, then they’re in as much trouble for not living up to their word.

CC: He didn’t say there’s no chance in hell, but he did say nobody else has had a chance in hell before.

KK: Yeah, my whole problem with it has always been, I don’t agree with rails to trails, I think they stole ground … but I don’t necessarily know what we could do about that would do any good. I guess you could force them to fix the trails and stuff, the fences and stuff, but that’s almost conceding they ought to be there which I’ve always said.

CC: I almost hate to talk litigation strategy when we have this many people and reporters here.

KK: Yeah.

CC: But just having a flyover view, which seems to me what might the outcome if we go to state court, I think we have a great chance of winning on they have to kill noxious weeds, they have to spray noxious weeds, they have to pick up the litter, they have to fix the fence, because that’s the law that’s been upheld at this point, so that’s just the state court telling them have to do this.

KK: And they know.

(KK, CC, JF: all talking at the same time)

CC: Rule on that issue of who is the trail sponsor, that’s the federal law’s sole responsibility.

KK: So if you get a ruling against them and they don’t do nothing about it, then what happens.

CC: Well then that’s a stronger case to take to the Surface Transportation Board.

KK: talking over CC

CC: They’re so brazen about this that they’re ignoring a state court order.

KK: Yeah.

CC: So the flip side to it, we get the court order and they do it and the Surface Transportation Board will now say …

KK: talking over CC

JF: at the same time most of this comes back to if we do an administrative action simply saying these are the facts, do it just like we talked before, the Surface Transportation Board can act independently of a court ruling, they can take our facts and make their decision just sending it to them by mail. And that’s what Meyer ??? has said to me repeatedly, get your information and send it to us. So if we want to fight in court, yes we can fight it in court, if we want to do it on the cheap, we can assemble a case solid enough for this neglect for this things they haven’t done for all the things we’re doing that, that, that we’ve tried to make a case with, because I’m probably the strongest person for telling them that it’s supposed to be done and have them telling me no it’s not of anybody in the state of Kansas. So we can get administrative action here sent to administrative action there and avoid our problems.

KK: Really what would it cost the county to go upstairs and say hey these people aren’t living up to their noxious weed obligations, they’re not living up to the fence obligations, that cost, what would that cost us, money.

CC: It would cost the attorney’s fees, to get all of that. You would have to all the facts laid out, so that would be time, all those facts would have to be in place, you can’t just say they’re not doing what they’re supposed to do, you have to plead the facts, we’d have to go out and find the four landowners we’re going to use, incorporate all those facts in.

JF: Which would be relative easy Jim could, Jim’s got four or five more people right now

Unidentified man in audience: we could get 10 or 15 can’t we?

JF: Or more

Numerous people talking at same time.

CC: Assuming they’re going fight it.

JF: With what, because at a certain point if we file this the right way, they don’t even have standing to be issued permit.

KK: I don’t see how they can afford it.

GA:  They can’t even build a fence can they?

JF: They don’t build the fence, they don’t do anything.

GA:  They don’t have any money do they?

JF: $4.3 million.

KK: and JF: talking at same time.

KK: You and me and anybody can go right now and I’ll show you they’ve done nothing, even the most strident supporter can’t argue they’ve fixed fences and anything with noxious weeds.

CC: It appears they fight everything.

JF: They have pro bono lawyers and you can’t fight pro bono lawyers because he’s going to fight because he’s making a name for himself and that’s what we’ve been dealing with from the very beginning,

CC: That’s not true.

KK: But there is a real issue in our mind of them not doing the stuff, the fence, the noxious weeds, the this, they’re not doing it.

JF: Could the railroad come back and lay track today, absolutely not, they would have to rebuild the entire base, they’d have to clear the land, they’d have to take it as if it is a piece of bare ground and rebuild. They have breached that original agreement, and that original agreement just like it says, they are caretakers of the easement and it must be kept railroad ready and that is part of that issue, and I truly believe Shawnee County pulled back, that judge had done all that research and that’s the next thing he would have found and he said further into this other side of this is the original agreements.

CC: So did Shawnee County just dismiss it?

JF: Just quit, they just abandoned it.

CC: What about individual landowner

JF: Individual landowner tried to step up and keep the argument going on this neglect deal, this non development deal, and the judge would not, the judge essentially said you do not have standing to argue that case.

CC: Did you talk to, did Shawnee County hire an attorney or did they use the county counselor’s office.

JF: I think they had county counselor office because he is Cole, and Cole is the counselor, the attorney that helped me years ago. When I talked to Ron Folk, it almost scared him when I told him about this other deal, because it’s almost like I pulled the curtain back and showed them what it is.

CC: I assume they must not know it said it very clearly. Ron Folk, was he there defending one of the landowners?

JF: Yes he was defending the landowner. And that’s on the back page to where the three were notified. Ron Folk, Cole and another one.

CC: I just assumed they went onto the ? stage.

KK: Say we got 10 landowners willing to swear in an affidavit they’ve done nothing on their piece of whatever they’ve got? And we could easily get our noxious weed guy to swear they’ve done nothing on noxious weeds, cuz I’ll swear to that too, all you got to do go walk down the thing in the summer, it’s loaded with noxious weeds, even the one they kind of keep up. What would that cost the county then? If we had 10 people willing to write out an affidavit, that’s you don’t have to go hunt for them or nothing.

CC: Right, we’d first have to address an issue of representation. I can only represent the county.

KK: We’d probably have to hire a lawyer is what you’re saying.

CC: Right, or a couple of landowners hire an attorney and we can work with them. I don’t think I can represent the county and the landowners because we can’t guarantee our interests will always be the same. I think by statute they’re not.

GA:  You earlier suggested we go directly to the Surface Transportation Board, that involves making a case and not going through court is that correct.

JF: it’s correct, ? has told me assemble, take your pictures, do your deal, write your instructions, write everything you need, everything you think is applicable, you’ve got everything that’s admissible, and today with Google maps you can see it from space, and you can assemble all subjects of why they should make that ruling why they should hold that hearing to make their decision. And that’s another administrative decision, just like I’m talking to you they can make the administrative decision to remove it.

CC: You know what we need? There’s got to be several groups that are opposed to rails trails.

JF: There are those that are completely, if you think I’m being one with tin foil hat with lightning rods attached, you have no idea there are several of these that go off the deep end they will hang their hat one little word on something or other, it gets to be a circus. We’re talking about the meat and potatoes, the heart of the issue, the thing that is the foundation from the start through there. So we don’t differ from every one of these organizations, because I’ve talked to most of them.

GA:  What would be involved with us doing that, the surface transportation.

CC: The same thing, it won’t be on the cheap, because if we do it on the cheap we’re going to lose.

GA:  We can get involved and get an attorney to put our case together.

CC: We could request they remove them as a trail sponsor today, but it would be denied.

KK: OK so we set up a request say remove them as a trail sponsor and by some magical miracle they do it, they’ll just name someone else as a trail sponsor.

JF: That’s up to, no they don’t do that, that’s the key to the whole thing, it’s the railroad who decides to do this at all times, the railroad is still there, it’s still the railroad’s right of way, it’s up to the railroad to get another trail sponsor. The railroad has a year and number of days to find a trail sponsor or they lose it and have to either reactivate it or abandon it.

KK: My point on all that was, what have you gained if you do get that, if they name another trail sponsor, they aint got no money either, they don’t do none of this stuff, let’s face it a lot of this is because the people have got no money to do nothing with, pardon my English, all the writers in the room, but uh …

JF: wWe’re still back to the original agreement, the 10-year deal to have it operating, they’re in breach of that which is the agreement that is here which is the agreement you can rule on today they are in breach of that agreement. That you would have taken it away from the railroad, you’re, don’t even think about the trail, think about the railroad itself, because that is what that judge did in that ruling, and you fight the railroad in not building the railroad. That’s what you’re doing. Well…

KK: It’s up to me on the agenda, Jim, I’m still talking to you I’m not running you off like I have did before. My issue is to spend money on this, county money, I personally might agree with you with all day long about a lot, because I probably do, and you and I have talked about this before, I’ probably in some ways, personally I think it’s terrible how they did this whole rail trail and stole all that ground. The county though I’m sitting here, I have to come up with a way so I think this is a good thing to spend county money on or county resources. I can see it where they’re not doing their noxious weeds. We would take me, you, anybody to court if they were as egregious as these people are on noxious weeds. And we do, the county takes people to court on noxious weeds all the time. The fence thing is another one, the fence and the noxious weed thing I think we have a county issue here on them not keeping it up and doing it. You’re wanting to say something.

CC: Just trying to think of how is the best way of being successful.

KK: Comes back to a lot of the things you read and all the cases you’ve come up with over the years, nobody’s really ever been successful.

JF: Because they’ve missed the key things that just like I had to wait until this last part fell in place, now that I have that, I have it from the very beginning all the way the through to the Supreme Court all the way to the rest of it, so they can try to go around me I can pull them right back to this same center deal, I can get there. but I need help in doing so, and if want to take some time to set up some strategies to do this, I’ll be more than happy at anybody’s convenience to set a strategy session so we can come up with a legal method.

KK: What is success in your mind?

JF: Success is one of two things, either the trail is up and operating properly or it gone.

KK: I’m asking you which one of those two scenarios is success.

JF: If you were me and had all the promises made to you, you would want it gone, because you would not believe it would ever operate it properly. So I’ve got to go with gone, but I’m on the record from the earliest time, that we either make it go or make it go away and spend our power to decide that issue.

GA:  Caleb, what do you think it will cost to litigate this thing and take it to court?

CC: I think we need at least one attorney that’s an expert on this, or at least an expert in dealing with land rights, because there’s no one who’s an expert on this developing area. Because I mean, Jim’s done a lot of research, he’s not an attorney. I’m an attorney, I have done a lot of research on this. We need somebody that’s an expert to litigate this, because going before the Surface Transportation Board, it’s an administrative agency, it’s not a court, but it’s still litigation, and my anticipation the rails trails conservancy isn’t going to say, you’re right, we should lose the trail, because they don’t do that.

JF: They don’t do that, but at the same time, from talking with, they consider me as the same power as the attorney, they consider my facts the same as the attorney, and don’t they don’t require attorney’s to talk before them.

CC: Right, you can represent yourself, even in court, you can represent yourself. If we’re going to do this, that’s my opinion, perhaps we can find someone that works for some foundation that fights for individual property rights, perhaps there’s not a good one out there.

JF: and CC: talking over each other.

JF: The problem with the institute of justice would put me against the county for failure to perform. That’s what I don’t want to end up being, the guy fighting the people that I’m trying to have fight for me. And that’s the next part of the equation that can happen, so we want to be on the same side of this issue, and not sitting on opposite sides and then have to be on the same side.

CC: Do you know any attorneys?

JF: Lee DeGraft in Missouri has been the one that went through this code ruling I have given you.

cc OK.

JF: He lost Kansas ? it’s been the one recommended by the Farm Bureau, he’s also dealt with the people that fought over the bridge at Columbia, the Columbia bridge they fought over there covered almost every issue we’re talking about. We’ve got attorneys and there are attorneys that are successful at this that he has got access to.


JF: I think so, you can find it on that other court case I gave you.

The other attorney that’s listed on there by him was in an airplane accident. And his father, still last name is still in there, is the legal firm that’s still primarily in Missouri.

CC: So is Farm Bureau not interested at all.

JF: Farm Bureau is interested in helping if we’re fighting, but Farm Bureau doesn’t seem to want to step up to the plate in fighting, they want to be jump on the band wagon when it’s over.

CC: I kind of gathered that too, and I …

JF: They’ll sit there and jig and jaw and say yeah go get them, yeah we’ll support you, yeah we’re doing this what have you, but absolutely stepping up, and really I think it would be different had the county do it, not just the counsel, but a little more a little more phone calls back from them.

GA:  Is the trails paying taxes on this all this land?

CC: No.

GA:  That’s what I thought.

CC: They don’t pay taxes.

KK: They don’t pay taxes anywhere. They don’t pay taxes. It’s been fought.

CM:  We took it to the state court of tax appeals, and won the first time, and then the next time a new tax court of appeals …

KKThrew it out.

KK: (talking over CM: ) they even lost and then the tax appeals court threw it out. And that’s been how many years ago, Carl?

CM:  Oh it’s been at least seven or eight years.

GA:  Yeah, I kind of remember it.

RB: Marg was still here.

KK: Who?

RB: Marg the county appraiser.

KK: Oh the county appraiser was Marg.

JF: At the same time we had a recent BOTA ruling that overrides that one, so they’ve lost twice now.

KK: Yeah, but I don’t think they’re paying taxes.

JF: They aren’t paying taxes.

KK: I mean.

JF: They’re not going to do it. Which is part of the details you put in your deal of leading up to the responsibility of the railroad right of way. All of these little thing details add up to a whole bunch.

KK: Thank you Jim and for being willing to have …

(coughing, hacking in room)

CC: Do you have Mr. DeGraft’s contact information?

JF: I believe I have it at home. What I’ll do is send it back through.

CC: Could you email it directly?

Jf Well, I, I’d have to have someone else email for me, I’m not computer literate

KK, CC, JF: talking

JF: And I will contact him to definitely expect contact from regarding and.

KK: And he can just quiz him and stuff, too.

KK: See you next time.

JF: If there’s any way I can help as much as I can help.


Discussion after Jim Foster left meeting.

CC: The problem is there is just as many people on the other side. This is assuming you’re going to have all of the environmental groups.

KK: Ah, there’s no argument, they don’t keep up the fence, they don’t do anything to noxious weeds. They just, they can’t argue. And those are both.

CC: That’s an easy lawsuit …

KK: talking over CC

CC: He kept saying let’s do that lawsuit, get me four landowners, I can’t represent them, they have to represent themselves and hire an attorney. We run that up there in district court and see what happens. That does not get rid of them as a trail sponsor.

KK: I don’t know the county’s business is to get rid of them, the county’s business is to force them to do what everybody else is supposed to do, which is the noxious weeds and the fence. And I agree there is a real county issue there. If it was me or Fred or Gaylord or Rhonda that owned property that was covered in noxious weeds like theirs is, the county would be taking them to court and going after them.

WW: Has the county ever pursued the trail people for having noxious weeds, I mean all you have to do is get your weed guy go out there and inspect it, right? And then so …

KK: Yes, send them the letters.

WW: And has that happened?

KK: Yes, over the years, but not lately, because nothing’s ever happened, they’ve never done nothing.

WW: And doesn’t the court tell them or force them to take care …

CC: You’d have to file a lawsuit.

KK: You’d have to file a lawsuit.

WW: The county’s never done that?

KK: Never filed a lawsuit.

CC: Not this county. Shawnee County filed a fence one.

WW: I know there’s been other lawsuits, like that Ibrahim guy had sericea lespedeza.

KK: We do that all the time on landowners, yes, I mean not all the time, but to be honest with you, it’s hard to get the judges to really care about noxious weeds sometimes, but yes, he does send a lot more than the judges ever do anything with, to be real honest with you. I don’t know how to say that, I’m trying to be politically, you know not make the judges unhappy, but they got a lot to do, I’ll grant you that, but you know the noxious law is kind of far down on their list of stuff.

WW: I was just curious because you were saying the noxious weeds are so bad, and the county has a process to take care of it, but you haven’t taken care of it.

KK: and most of that is Leo sends people letters and he’s sent them letters over the years. We have problems with the federal government and the federal government has loaded with noxious weeds at the two lakes. You send them letters and they say OK, we’re the federal government.

WW: OK I was just curious about it.

KK: the fence thing, is, there isn’t a fence around it, unless the landowner made the fence. Am I correct, Carl?

CM:  The railroad built the fence. But we went up there looked at that fence up there, and we got our legal counsel.

KK: He was not here.

CM:  landowner has to have half of the fence and the other, but that’s Kansas fence law, but it wasn’t that way in the beginning with the railroad, because the railroad built the fence in its entirety and maintained it.

KK: and you can make the argument the railroad is responsible for all of it, why not the rail trails. they are the, now they come back with this thing well the landowner has to pay half of it.

CM:  They ought to be the one responsible for it.

KK: When we had that fence viewing the trail guy was there, Carl, remember what he said, though, we don’t have any money.

WW: Wasn’t that a legal fence, though?

KK: It was a legal fence at the time, and not able to negotiate make it so it will keep cattle in, and you and me and everybody else knows a legal fence won’t keep cattle in, I know it, Fred knows it, anybody that has ever had, a three wire fence with the fence posts twice as far as part as they ought to be is a legal fence and that will barely keep a horse in, and you can keep a horse in with squat and you can quote me on that, you can keep a horse in with nothing and a legal fence in Kansas is joke it will not keep cattle in. but as commissioners our thing is you have to have a legal fence, so we go out and view a fence, well yeah, there’s three wires and the fence posts are x amount apart which is too far apart, we have to say that is a legal fence, whether, and we all, keeping cattle in for years, we know that aint going to keep cows in. You can quote me on that too and get the legislature to change that because I’d be all for it, because the legal fence is a joke in Kansas.

CM: Sure won’t keep calves in.

KK: It won’t keep calves in. It will maybe keep an old sick horse that’s been fed real good.

Rail trail discussion ends.

On Windy Hill, Wayne White sometimes writes about things he thinks about. He not only lives on a windy hill, he’s been known to be a windy writer.

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