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Ruling Answers Few Questions In Rail Trail Trespassing Case

West District Court ruling looks at criminal trespass.

By JODY ALLARD

Gorge News Report

A West District Court ruling last week preserved the county's ability to prosecute a 19-year-old University of Oregon student for criminal trespass, but resolved little for adjacent property owners and users of the Klickitat rail trail.

During a conference call with County Prosecutor Tim O'Neill and Rails to Trails Conservancy attorney Charles Montange, Judge Robert Weisfield ruled Aug. 27 against amending the dismissal of the trespassing charge against Sean Stroup. Weisfield also decided against sanctioning O'Neill for improper conduct, as requested by Montange.

The ruling enables prosecutors to reopen the case against Stroup; Montange's motion was filed in an attempt to prevent prosecutors from pursuing the case when Stroup returns from vacation in Europe later this month.

County Prosecutor Tim O'Neill, however, says the state "would need essentially more information which would show the location of the trail and exactly where Mr. Stroup was standing in relation to the trail" prior to reopening the case.

Calling it an "inappropriate forum," Weisfield says he ruled against Montange's motion because the case against Stroup has already been dismissed.

"I wasn't going to allow the District Court to be used as the forum for determining the property rights of people bordering the trail," said Weisfield. "There's no real defendant before the court."

Trail user or trespasser?

Depending on whom you ask, Stroup is either an innocent pawn in the ongoing battle between local landowners and state officials, or a belligerent interloper on private property.

Prosecutors say that Stroup rode a mountain bike over property owned by Klickitat residents Lori Zoller and Brent DeWalt, in blatant disregard of locked gates and multiple "no trespassing" signs. In their response to Montange's motion for dismissal, prosecutors argue that a Sheriff's incident report claims Stroup "admitted to riding his mountain bike on Rails to Trails."

Stroup's parents and Montange insist that the university student was simply riding his bike on a state-owned trail to take pictures for a school project.

Montange counters that the rail trail is owned by State Parks, rather than Zoller or DeWalt.

"DeWalt and/or Zoller evidently represented to the Sheriff's officers and purportedly to Mr. Stroup that the trail was their private property," asserts Montange in his motion. "Anyway, that is what the prosecutor seems to assert (very wrongly) in the complaint against Stroup, where the prosecutor claims, in essence, the public trail is 'private property' owned by DeWalt and Zoller."

Although Judge Weisfield ruled in favor of allowing prosecutors the option to pursue the case against Stroup, he made one thing clear: Next time, prosecutors must provide concrete evidence that Stroup or any other trail user strayed from the state-owned trail.

"If the prosecutor walked in tomorrow ... and handed me the same affidavit determining probable cause, I would certainly scrutinize it," said Weisfield. "The question would be 'where are they on any particular person's property?'"

The judge's statements were merely a reflection of the prosecution's own attitude toward the Stroup case, O'Neill said.

"We would look to this very carefully in light of comments made to us during this hearing by Judge Weisfield. Before we would do any prosecution for trespass, we would make sure that there would have to be some survey done showing precisely where the trail is and precisely where the individual was standing," said O'Neill.

Controversial corridor

At the heart of the Stroup case is ownership of the Rails to Trails corridor.

Since its inception in Klickitat County eight years ago, the rail trail has been a bone of contention between state officials and a small group of local landowners, backed by the County Commissioners.

For Montange, the answer is clear. "It's a settled legal proposition. O'Neill is just off in space to say otherwise," he said. "As are the people that he's working with, including [County Commissioner] Joan Frey."

In a letter to State Parks Director Cleve Pinnix dated Aug. 14, Commission Chair Don Struck writes: " ... it was agreed that until certain issues were resolved, i.e., a survey of the original abandoned rail corridor, a survey of Native American landholdings, title search, etc., that the proposed trail status would remain as it has been and the Sheriff would respond to trespass issues."

State officials, however, insist that the deeds and ownership of the trail have been legally resolved.

Assistant Attorney General Barbara Herman maintains the state's ownership of the trail in a July 9 letter to Montange: "I called Mr. O'Neill and explained that this is state land and that the public and park rangers were entitled to use the trail. He indicated that he was new in his job, knew nothing about the trails and would appreciate any materials I could provide. Mr. O'Neill never got back to me, so I assumed the issue was resolved."

Bill Jolly, a spokesperson for State Parks, says state officials "recognize the controversy" and emphasizes that "it is important that the general public realizes the legal status of that corridor."

"When adjacent property owners actually physically intervene or charge public users that they are trespassing and then summon Sheriff's Department deputies to attempt to pursue trespassing charges ... that's going too far - it's not defendable by law," said Jolly.

Montange echoes Jolly's concerns and claims that trail users are subject to harassment, interference and obstruction by property owners and county officials.

Herman's letter acknowledges Montange's claims: "My correspondence with Mr. O'Neill was prompted by reports that the Klickitat County Commissioners had directed the Sheriff to arrest all trail users, including the State Park rangers that manage the trail."

Investigating complaints is the Sheriff Department's job, Sheriff Chris Mace contends.

Mace says he routinely sends deputies out to investigate complaints, regardless of whether they are located on the rail trail.

"I believe that we might have been called to maybe two or three instances that I can remember and one of those involved him [Montange] when he was down there. We don't get a lot of calls to rails to trails," he said.

In the Stroup case, a deputy investigated, but the decision to charge the student was made by the Prosecutor's Office.

Still, Jolly suggests that the county's insistence on pursuing trespassing cases on the rail trail could result in costly litigation. "There is the potential that as aggrieved parties they could be seeking damages against the county," he said.

It's not just trail users who have come under scrutiny; Judge Weisfield emphasizes that local property owners must not "interfere with the citizens' right to use the trail."

"We have not seen any indication to my knowledge ... where a public official in Klickitat County has acted against any citizen who has installed unauthorized barriers or fences or signs in the corridor," said Jolly.

While Mace says his office has not received any complaints regarding gates and signs posted on state property, he suggests the matter would be better served in a civil court: "There are civil remedies as opposed to criminal remedies. They need to be taking these issues in front of the proper authorities."

From railroad to rail trail

Although much of the 31-mile rail trail, which stretches from Lyle to Centerville, was deeded to the Burlington Northern Railroad, an estimated 20 to 30 percent of the land was used by the railroad through easements obtained from property owners.

Despite legal challenges filed by adjacent property owners, the courts have repeatedly supported the use of former railroad lands for public trails.

Known as "railbanking," Congress has consistently supported the practice of using former railroad lands for future transportation needs. Under Congressional authority, Rails to Trails has created a network of public trails stretching from coast to coast.

In Klickitat County, the land for a public trail system was acquired by Rails to Trails - a national organization that acquires land formerly used as railroad tracks for use as public trails - and transferred into the hands of the Washington State Parks and Recreation Commission for management in 1994.

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