Mendocino County’s Skunk Train, a popular tourism attraction that takes visitors on a scenic 3.5-mile ride around the Fort Bragg area, believes it is a public utility.
That classification matters because under California law, railroads that are considered to be public utilities have eminent domain rights, meaning they can seize private property for public use. After nearly 20 years of attempting to acquire the vacant Georgia-Pacific mill site near the city of Fort Bragg, an ongoing war of words with city officials and an ill-timed “oversight” on behalf of the city’s attorneys, the company that owns the Skunk Train used eminent domain to acquire 270 acres of land that includes the mill site as well as 20% of the city of Fort Bragg.
“The deed signed over and it’s done,” said Fort Bragg Vice Mayor Jessica Morsell. “We’re f—ked on that, 270 acres have been grabbed, and we have no legal mechanism to block that at this point because it was ceded by Georgia-Pacific.”
Mendocino Railway, the company that owns the Skunk Train, received the land from Georgia-Pacific — the owner of the mill site — two weeks ago. The city was previously in discussions to acquire the land from Georgia-Pacific, but the process was slowed by a lengthy negotiation process that Morsell believes was intentionally prolonged (“We got played by Georgia-Pacific,” she said). Under her theory, Georgia-Pacific sought to cede the land to Mendocino Railway to escape any potential liability over necessary remediation of the land, as the abandoned mill site is rife with arsenic and harmful carcinogens.
As a federally recognized railway, the Skunk Train is only subject to federal regulation and can circumvent state and local regulatory processes, which Morsell believes was the point of the “land grab,” as she described it.
“They commandeered land that needs to have remediation done, but they’ve made the argument they’re not subject to the state agency that oversees remediation,” she said, in reference to the California Department of Toxic Substances Control. “Now anything they build on that land related to the railroad is exempt from oversight.”
Robert Pinoli, the president of Mendocino Railway, bristled at Morsell’s characterization.
“My response is, I'm sorry they feel that way, but their concern that we're going to circumvent state and local permitting processes is simply not true,” he said. “With respect to development, whatever isn't railroad use, we will follow state and local laws.”
Morsell said Mendocino Railway is likely to tie any projects on the land — whether they be homes, restaurants or hotels — to the railway to circumvent local laws.
“They want the train to go the length of town and stop at stores and restaurants they own, and are technically tied to railway operations so they get out of regulation,” she said. “They’re trying to build a theme park on our headlands, with access to property completely controlled by them.”
That’s a charge that Pinoli strongly denied, while pushing back on characterizations that the railway is merely a 3.5-mile “excursion line.” He noted that the company owns 40 miles of railway from Fort Bragg to Willits, though the connection is blocked by a collapsed tunnel and other portions of the railway are inoperable.
Whether Mendocino Railway will actually voluntarily subject itself to city oversight will be determined later, but for now, the relationship between the Skunk Train and the city is frayed, to say the least, though it’s not as if the two ever got along all that well.
For years, Mendocino Railway and Fort Bragg have battled over land rights, with fights growing increasingly nasty over time. Last year, Mendocino Railway cut down trees on lands owned by residents and had to apologize to the land owners.
“The definition of integrity is doing the right thing when no one looking,” said Fort Bragg Mayor Bernie Norvell. “[Mendocino Railway] say[s] all right things, but when no one is looking, they’re not doing the right thing.”
Morsell said that the tree incident is evidence that the railroad company is untrustworthy and that their acquisition of additional land should alarm residents who value their property rights. Pinoli said that the trees cut down were the “width of soda cans,” residents accepted the company’s apology, and that the city is overreacting to the incident.
However, it is not just the city that is seeking to curb the power of Mendocino Railway. Earlier this year, Mendocino Railway sought a Railroad Rehabilitation & Improvement Financing loan from the Department of Transportation in order to repair its 40-mile line. Several groups, including the California Coastal Commission, the North Coast Railroad Authority, the Humboldt Trails Council and local environmental groups, wrote letters in opposition, citing environmental concerns as well as the fact that Mendocino Railway is not currently connected to the federal railway system, thus disqualifying them from receiving the loan in the first place.
Mendocino Railway is not at risk of having to return the land to Georgia-Pacific, but the city is moving forward with a federal lawsuit challenging the company’s status as a public utility entitled to eminent domain privileges. That lawsuit was intended to go out before Georgia-Pacific ceded the land, but, according to city officials, an “oversight” in the city’s legal office stopped the lawsuit from being served until days after Mendocino Railway received its prize.
Morsell notes that if the city prevails in its case, it would still constitute a win as it would force Mendocino Railway to abide by state and local regulations on non-railway development, as she does not take the company at its word that it will not argue that houses, hotels and shops are part of the railway.
California’s public utilities code defines a railroad corporation as “every corporation or person owning, controlling, operating, or managing any railroad for compensation within this State” and a railroad as “every commercial, interurban, and other railway, other than a street railroad, and each branch or extension thereof, by whatsoever power operated, together with all tracks, bridges, trestles, rights of way, subways, tunnels, stations, depots, union depots, ferries, yards, grounds, terminals, terminal facilities, structures, and equipment, and all other real estate, fixtures, and personal property of every kind used in connection therewith, owned, controlled, operated, or managed for public use in the transportation of persons or property.”
The courts’ decision will turn on whether the Skunk Train is transporting “persons or property” “for public use.” Morsell believes the city has a strong case as the railroad is transporting “persons” for a brief excursion, unlike a railway that moves passengers seeking to travel from point A to point B.
“Our case is critical in protecting private property rights, because the Skunk Train has shown they’re ruthless,” she said while warning of future eminent domain claims if Mendocino Railway’s status as a public utility goes unchallenged. “It’s insane how much power a railroad has. We really underestimated just how brazen they are, and how much they can do by claiming they’re a public utility.”
Pinoli dismissed Morsell’s predictions as fear-mongering, and said that company is merely trying to move forward with remediation and development at the abandoned mill site.
“We’ve been working with Georgia-Pacific on trying to acquire the land since 2004,” he said. “It’s time to quit talking about stuff and actually get on with doing things. If we’re going to make community more vibrant for everyone, it’s time to get on with it.”
Morsell and Pinoli both said that the city’s residents themselves are divided on the issue. Some take the city’s side in being fearful of Mendocino Railway, while others believe development of the mill site is overdue and believe an expansion of the railway will bring jobs and tourism. (Morsell described the latter position as “propaganda” by the company, while Pinoli, of course, disagreed.)
There is one fact that is undisputed between the two parties: development on the recently acquired land will begin soon. Whether the city of Fort Bragg and state agencies will have the ability to regulate that development now rests in the hands of the courts.
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