SMART sued over use of right of way for bike and pedestrian trail

A group of trackside Sonoma County landowners is suing Sonoma-Marin Area Rail Transit over what they say is SMART’s improper use of its historic rail right of way to build a parallel bicycle and pedestrian trail.

The lawsuit, filed Monday in the U.S. District Court in San Francisco, alleges that at least parts of the 70-mile trail envisioned to accompany the commuter rail system were improperly built on private land using entitlements tied to the historic rail right of way.

When railroad companies in the late 1800s acquired those rights of way across private land — which in Sonoma and Marin counties was often through government condemnation — their entitlements were exclusive to building railroads, not trails, the complaint alleges.

SMART’s construction of its pedestrian and bicycle path, in disputed segments, constitutes an illegal taking of private land, plaintiffs claim. They include more than 30 residents and property owners along the line from Santa Rosa, to Rohnert Park, Penngrove and Petaluma.

“SMART has no right to build any type of hiking or biking trail on that rail corridor,” said attorney Thomas Stewart, one of several working on the case for the plaintiffs.

SMART acknowledged the lawsuit in a brief press statement Friday, saying it challenged “the construction or planned construction of the Sonoma-Marin Area Rail Transit District’s pathways along the railroad right of way.”

“SMART is carefully reviewing and assessing plaintiffs’ claims and will evaluate all available options,” the agency statement read.

Matt Stevens, a SMART spokesman, declined to be interviewed or offer further comment Friday.

The commuter rail agency is running trains on an initial 45-mile Santa Rosa-to-Larkspur route, with plans in place to reach Windsor by some time in 2022, and eventually Healdsburg and Cloverdale. As of last December, SMART had built about 23 miles of the accompanying bike and pedestrian path, with plans in place to add another 9 miles by 2023.

The plaintiffs are represented by Stewart, Wald and McCulley of Kansas City, Missouri and Sacramento-based firm Kershaw, Cook & Talley.

Stewart, Wald and McCulley specializes in bringing such cases against railroads across the nation, said Stewart, one of the partners. “There are 70 cases around the country pending right now and we probably have 50 of them in my office,” he said.

The law firm examines historic deeds and land conveyances when railroads or government entities that have acquired them seek to convert rights of way from rails to trails. The practice is common in places where rail lines have been abandoned and as governments seek to bolster recreational activities.

A federal law, the 1968 National Trails System Act, creates a process to convert rail lines to trails that compensates the landowner. But SMART did not follow it, Stewart said. In Mendocino and Humboldt counties, where a similar process is underway to lay the groundwork for the planned Great Redwood Trail, the North Coast Railroad Authority did follow the federal law, Stewart said.

The lawsuit seeks unspecified damages. SMART can avoid the litigation by agreeing to follow the federal law, he said, in which case “it becomes a lawsuit against the U.S.,” Stewart said. Otherwise, he said, SMART could be on the hook for the cost of miles and miles of expensive North Bay land.

You can reach Staff Writer Andrew Graham at 707-526-8667 or andrew.graham@pressdemocrat.com. On Twitter @AndrewGraham88

Click here to view the lawsuit