Wayne White

A longtime rail trail opponent visited the Osage County commissioners Monday to check their progress on his ideas for revoking the local trail operators’ permit, but also threatened litigation against the commissioners if they did not act on his advice. Also during the meeting, commissioners laid out their plan to inspect the Flint Hills Nature Trail and the Landon Nature Trail and enlist the help of Kansas Farm Bureau to gather complaints about the trails.

Jim Foster, Carbondale, began his discussion saying he had come up with another method of ridding the county of the Landon Nature Trail, a north-south former rail line that is largely undeveloped in Osage County. He said he had contacted the “railroad real estate office” and the Surface Transportation Board to inquire about whether it was possible to cancel the right of way of an abandoned rail line, a duty which he said lies with the county commission.

Citing the railroad’s lack of maintenance of the right of way, he said, “Since the contract is between the railroad and the trail group to maintain their right of way, it would appear that we could pull the railroad right of way and never even have to talk to the trail.”

He suggested the county counselor should “look into it quite a little bit deeper and go from there.”

Foster said cancelling the railroad right of way was one of several “ways that are simply compile, sign and send, so this is not a deal of great cost. This is a sign and send, and not court action, because I’m trying to find a way for the county to avoid costs.”

Foster has previously urged the county commissioners to contact the Surface Transportation Board to request revocation of the permit held by the Kanza Rail-Trails Conservancy, the volunteer organization that operates the Landon and Flint Hills nature trails. Foster has said the STB has the authority to revoke the permit based on lack of development of the trail.

Foster outlined his history of communications with the Osage County Commission regarding his rail trails opposition, and complained of inaction by former commissioners and county counselors, but said with communication open with the current commission and county counselor it was time to act on his plans.

“We have to do it in very timely manner,” Foster said. “They (trail group and supporters) are ramping up their pressure on other entities. We’re fast running out of time, when they’re trying to do something here as spring weather breaks, so we got a window of opportunity to take advantage of.”

He indicated that with the administrative actions he has suggested, no litigation would be necessary.

“Yes, a lawyer needs to be involved, but a lawyer is only as good as the research he draws from,” Foster said. “You have cooperation from someone who has the research. I can look them in the eye and not back down. I have the law, court decisions to back me up.”

As Foster spoke about lawyers, Osage County Commissioner Ken Kuykendall interrupted and said to county counselor Caleb Crook, “Where are you at with the Farm Bureau lawyer? Did he ever call you?”

Crook said he hadn’t heard from the Kansas Farm Bureau attorney, which the commissioners have attempted to consult in the past on local rail-trail issues. Kuykendall said he was surprised, since he had spoken to the attorney at a farm conference at Overbrook last week.

“I went and asked him and shook his hand,” Kuykendall said. “I said are you ever going to call my county lawyer and discuss all this with him, and he said, he told me right to my face, ‘I will do it this week’.”

Kuykendall noted the conversation took place in front of Osage County Farm Bureau President David Prescott and Osage County Commissioner Fred Diver.

“Well this guy really annoys me, because he looked me right in the eye and shook my hand and we talked about it, and I know Prescott was there talking to him and you were there, weren’t you, Fred?”

“Yes,” Diver answered.

Kuykendall then told Foster about the commissioner’s plan to enlist Osage County Farm Bureau to collect complaints from landowners adjacent to the county’s two trails, and the commissioners’ decision to inspect the trails themselves.

“We’re going to tour it, we the commission, so we have that to say to them that we have toured and we think the fences doodle, and we think there’s this problem and that problem. We will be scheduling that tour soon,” Kuykendall said.

Later in the meeting, the three commissioners agreed to tour portions of the Flint Hills Nature Trail as part of their regular meeting on March 16.

Kuykendall displayed a large map, which commissioners had directed the Osage County land development office to create, that showed the former rail lines in the county with adjacent parcels of land and corresponding landowners.

While commissioners and spectators reviewed the map, Crook asked Foster which parcels on the map were his. Questioned by this reporter, Foster confirmed that he did not own any land adjacent to the trail, but a member of his family did.

Kuykendall said he had spoken with local Farm Bureau representatives and intended to involve the group in collecting complaints about the trails.

“I’m just going to use the Farm Bureau, just because Farm Bureau wants to be involved,” Kuykendall said. “They’ve got a dog in the fight.”

He noted he was a Farm Bureau member, as was Diver. Diver later agreed to deliver a copy of the landowner map to Osage County Farm Bureau. Foster said he was a Farm Bureau member along with several other landowners who had land adjacent to the trail.

“For the moment whether we could ever get rid it of it or not, the issue of it’s there, and they’re not doing what they’re supposed to be doing, i.e., keeping the fences up, building fences right now,” Kuykendall said. “I have people complaining that have built fence themselves to keep cattle in, and they want to know if there’s somewhere they can address that to get paid for all the work they’ve done to build the fence so they can have a fence, or if they’re just out in the cold. And there’s other people that would like to pasture fields, this that, along it, that has no fence to speak of on it now, what they can do. And my response to them should be, we’re going to tour it and we’re going to ask the rail trail people, or should we get Farm Bureau to start collecting people and approach the rail trail with a list of people that have complaints in our county?”

Crook advised commissioners that if they were approached about fence issues along the trail, the complainer should be told to contact the trail conservancy. He noted the conservancy’s contact information was on the group’s website.

Kuykendall provided Foster with a letter Crook had received from an attorney representing Kanza Rail-Trails Conservancy in response to “what they read in the paper”. Kuykendall explained the gist of the letter as, “How do we know, nobody ever complains to them about it?” (See letter from attorney Matthew Geary here.)

With Kuykendall’s explanation of the commissioners’ intended actions, Foster closed his discussion by warning that if the county chose not to take the legal actions he suggested, the commissioners could face other litigation.

“All of us could join together and go essentially,” Foster said, “but if you don’t want to testify and not involve the county, all of us could sign a class action, and the county would then have to fight us for not acting. So this is really a real legal problem that the county would have to deal with for not doing their job.”

Editor’s note: After this article was written, Osage County Clerk Rhonda Beets confirmed that she had been contacted by Crook, who instructed her to take the trail tour off of the March 16 commissioners’ meeting agenda. She said the tour is to be rescheduled to another time.

See related article here.

Also see Flint Hills Nature Trail project to begin.