Klickitat County case highlights ongoing 'Rails-to-Trails' dispute

KLICKITAT -- Sean Stroup is a mountain biker. Or he's a criminal trespasser. He's a college senior working on a project to honor his grandfather. Or he's a confrontational interloper invading people's yards.

Which is it? It depends on who offers the description. This much is true: When the 19-year-old Stroup went mountain biking in May on a former railway posted as owned by the state, he didn't expect to be stopped and eventually charged by Klickitat County authorities with criminal trespass. In doing so, he has become the poster boy for one of Washington's long-running disputes over which land is public and which is private.

County authorities say the former Burlington Northern line cuts across private land, making it private property. At the very least, they argue, the state hasn't proved that the trail is a public right of way. The state, backed by the attorney general, says just the opposite.

The case is set for a hearing Wednesday.

"What's happening (in Washington) is happening in other places," said Maryann Fowler, a senior vice president with the Rails-to-Trails Conservancy. "You have land that is public and, for whatever reason, people don't believe it or think they can fight to keep the public away."

Klickitat County Prosecutor Timothy O'Neill, who filed the charges against Stroup and is representing claims by private landowners, agreed that the dispute extends beyond his county.

"This isn't the only place it is happening. Other places in the state had had similar disputes," he said.

As more prime land across the country is developed into private lots, the developments begin to push against rural public lands, including forests and beaches, legal experts say. The issue becomes more complex with former railways, because government-granted easements and titles for the long, narrow swaths of land date back more than 100 years.

In King County, for example, a similar issue flared over the county's attempt to open a portion of the East Lake Sammamish Trail through the city of Sammamish. There, a group of wealthy property owners has vowed to fight anyone who tries to use the public easement as a trail. The issue became so heated one owner of a million-dollar home threatened to shoot anyone who used the trail cutting through his back yard.

The issue has yet to be resolved, although the landowners lost a recent court battle with King County over a legal challenge to the county's environmental impact study of the trail.

Similar cases have erupted over Forest Service land in Eastern Washington, parkland on the eastern seaboard, fishing holes in Florida and the coastline in California.

In Southern California, media billionaire David Geffen has blocked access to a public beach in Malibu after he had promised to allow access in exchange for a permit to expand his multimillion-dollar compound. The legal battle has prompted his opponents to compose "This Sand Is Our Sand," a derisive anthem directed at the man who made billions in the music industry.

"Some people don't think the public should have access to public land," Seattle attorney Peter Goldman said.

Goldman, who is working with the Rails-to-Trail Conservancy in the Klickitat County fight, says the cases tend to have a similar pattern: People with little-used public land near their homes get angry when the public starts to use it.

In Eastern Washington along the Wenatchee-Okanogan Forest, private landowners and forest managers have fought over the forest boundaries, arguing over whether landowners can expand their homes or sell timber.

"It's a very predictable issue of the perception of private-property rights," said Bill Jolly, the environmental program manager for Washington State Parks. Jolly said the disputes have two primary elements:

"A failure to understand what the law is and, beyond that, it's philosophical: Regardless, the law is wrong and I don't recognize it.

"I think both of these elements are present in Klickitat County."

According to police and court records, Stroup was riding his mountain bike on a stretch of trail between Klickitat and Lyle, a 10-mile swath along the Klickitat River through Pitt, a residential neighborhood. He passed Lori Zoller's home.

Zoller yelled at Stroup as he rode by, records indicate. When he didn't stop, she called her neighbor Brent DeWalt. DeWalt confronted the bicyclist, who said he had a right to be on the trail because it is state property.

Zoller was out of town and could not be reached for comment. DeWalt didn't return calls seeking comment.

Zoller called the police. A Klickitat County deputy sheriff later stopped the University of Oregon student. Stroup told the deputy he was on the trail to ride and to work on his architecture project for school -- a bike trail design he was doing to honor his grandfather who once lived nearby.

According to the police report, the deputy told him he was on private property. Two months later, while Stroup was on a summer trip to Europe, the county filed formal criminal trespassing charges against him.

There was a problem, though: Since 1995, the state park department, the attorney general and private trail activist groups all have told the county that the land is indeed public, although the state has yet to complete a trail.

It had been first banked under the 1983 federal Rails to Trails Act and later bought by the Rails-to-Trails Conservancy and donated to the state park department in 1995. Since then, nearby landowners have resisted public use of the trail, saying the state never has proved where the land it owns starts and where it ends.

They have said they fear trespassers and the problems they bring. The state says private landowners have gone so far as to put gates and "no trespassing" signs on public land.

"That's all I have asked for," said O'Neill, the Klickitat County prosecutor. "The state won't provide proof."

Not so, state attorneys say. O'Neill has had proof all along.

"It is unfortunate that you didn't respond to my Jan. 22, 2002, letter before filing charges against Mr. Stroup," Assistant Attorney General Barbara Herman wrote to O'Neill in a July 24 letter contained within court files.

"I am not sure how I could have been clearer in communicating that the state parks own the trails and permit public use of that trail. Had you read the materials I sent, you would know that your predecessor Mr. Rife already advised the sheriff's office that trail use was permitted and that the sheriff had no authority to cite users of the trail."

Eventually, the county asked to have the charges dropped with the provision that they could be refiled against Stroup at any time.

That isn't enough for Charles Montagna, a rails-to-trails attorney who wants the charges dropped with prejudice and sanctions against the local prosecutor for pushing the case. A hearing is set for Wednesday.

Montagna said other counties, including Lewis in southwestern Washington, have tussled with the state over trails that abut private property but eventually begin to work with the state on the issue. Klickitat County, he said, is the only one to send police to arrest people who legally are on public land.

"This is just garbage. They are the only county in the whole state that has done this. (O'Neill and other public officials in the county) think that the gun is the law. They run the county like it is a plantation.

"That's the way it is in these cases. People don't know where their rights stop."

P-I reporter Mike Lewis can be reached at 206-448-8140 or mikelewis@seattlepi.com

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