An extremely popular tourist attraction in Mendocino County that takes people on a scenic 3-mile ride around the Fort Bragg area believes it is a public utility.
In California, railroads classified as public utilities have eminent domain rights, which allow them to seize private property for public use. This classification is critical. Using eminent domain, Skunk Train acquired 270 acres of land, including the Georgia-Pacific mill site and 20 percent of Fort Bragg, after nearly two decades of trying to buy it, a bitter battle with city officials, and an unfortunate “oversight” on the part of the city’s attorneys.
Fort Bragg Vice Mayor Jessica Morsell declared, “The deed signed over and it’s done.” A 270-acre tract has been taken and there is no legal way to stop it because Georgia-Pacific gave it up. We’re screwed.”
Two weeks ago, Georgia-Pacific, the owner of the mill site, transferred the land to Mendocino Railway, which owns the Skunk Train. However, Morsell believes that the lengthy negotiation process that slowed down the city’s previous attempts to buy land from Georgia-Pacific has been intentionally prolonged (“We got played by Georgia-Pacific,” she said). According to her theory, Georgia-Pacific sought to transfer the land from the abandoned mill site in order to avoid any liability for remediation of the land, which is rife with arsenic and carcinogens.
This “land grab” by the Skunk Train, which Morsell believes was the point, can be circumvented because it is a federally recognized railway and therefore only subject to federal regulation.
According to the California Department of Toxic Substances Control, “They’ve taken land that needs remediation, but they’ve made the argument that they’re not subject to the state agency that oversees remediation.” There will be no oversight for any railroad-related construction projects on that land going forward.
Mendocino Railway’s president, Robert Pinoli, took issue with Morsell’s portrayal of him.
According to him, “I am sorry they feel that way but their concern that we are going to circumvent state and local permitting processes is simply not true,” he stated. “When it comes to development, we will follow state and local laws for anything that isn’t railroad use.”
Morsell predicted that the Mendocino Railway would tie any development on the land — whether it be homes, restaurants, or hotels — to the railway in order to avoid local regulations.
‘They want the train to go all the way through town, and stop at stores and restaurants they own, and are technically tied to railway operations so they get out of regulation,’ she stated. On our headlands, they’re trying to build a theme park with complete control over access to property.”
In response to accusations that the railway is merely a “excursion line” of 3.5 miles, Pinoli vehemently denied this. From Fort Bragg to Willits, he pointed out, the company owns 40 miles of railroad, but a collapsed tunnel and other parts of the railroad are inoperable.
Skunk Train and Mendocino Railway’s relationship has been strained to say the least, but it’s not like the two had an easy time of it before.
Tensions between Fort Bragg and Mendocino Railway have been escalating over land rights for years. Last year, the Mendocino Railway had to apologize to landowners after cutting down trees on their property.
Sincerity, as Fort Bragg Mayor Bernie Norvell put it, “means doing the right thing even when no one is looking”. Even if [Mendocino Railway] says all the right things, when no one is watching, they aren’t doing the right thing. “
According to Morsell, residents who value their property rights should be alarmed by the railroad company’s plans to acquire more property. According to Pinoli, the trees cut down were the “width of soda cans,” the company apologized, and the city is overreacting.
In addition to the city, Mendocino Railway is under pressure to limit its power. An application for a Railroad Rehabilitation and Improvement Financing (RRIF) loan was submitted by Mendocino Railway earlier this year. While the California Coastal Commission was supportive of Mendocino Railway’s application for a federal loan, the North Coast Railroad Authority, the Humboldt Trails Council, and other local environmental groups opposed it, citing environmental concerns and the fact that their railroad was not currently connected to federal rail infrastructure.
Federal court proceedings are underway to challenge Georgia-status Pacific’s as a public utility entitled to eminent domain privileges, but Mendocino Railway is not at risk of losing the land. According to city officials, a “oversight” in the city’s legal department prevented the lawsuit from being served until after the Mendocino Railway had received its prize.
Mendocino Railway would be forced to comply with state and local regulations on non-railway development if the city wins its case, says Morsell, who does not believe the company’s assurances that it will not argue that houses, hotels and shops are part of the railroad.
As defined by California’s public utilities code, a railroad corporation is “every corporation or person who owns and operates, manages, or controls any railway for compensation within this state,” and a railroad is “every commercial, interurban, and other railway, other than a street railroad, and each branch or extension thereof.”
To determine whether the Skunk Train is being used for public purposes, the courts will focus on whether the train is transporting “persons or property.” “Persons” are transported by the railroad, unlike passengers on a train that travels from point A to point B, according to Morsell, who believes the city has a strong case.
While warning of future eminent domain claims against Mendocino Railway if the utility’s status as a public utility goes unchallenged, “our case is critical in protecting private property rights, because the Skunk Train has shown they are ruthless,” she said. “When it comes to power, a railroad is insane. When it comes to claiming to be a utility, we underestimated just how brazen they are.”
When asked whether the company was worried about the future, Pinoli said that it was just trying to move forward with remediation and development at the abandoned mill site.
‘We’ve been working with Georgia-Pacific since 2004,’ he said. “It’s time to stop talking about things and get to work. It’s time to get to work on making our community a better place for everyone.”
Residents of the city are split on the issue, according to Morsell and Pinoli. People on both sides of the debate are divided on whether the expansion of the Mendocino Railway is long overdue and will result in more local jobs and tourism. Pinoli, of course, disagreed with Morsell’s assessment of the company’s position as “propaganda.”
Since both sides have agreed that development will begin soon, there’s no room for argument here. The fate of Fort Bragg and state agencies’ ability to control that development is now in the hands of the courts.
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