First Amended Complaint - Sammamish Home · PDF filefirst amended complaint for declaratory relief, to quiet title and for an injunction page 1 ... mccartney, jeffrey and jill lum,

FIRST AMENDED COMPLAINT FOR DECLARATORYRELIEF, TO QUIET TITLE AND FOR AN INJUNCTION

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RODGERS DEUTSCH & TURNER, P.L.L.C.Attorneys At Law

Three Lakes Bellevue Dr. Suite 100Bellevue, Washington 98005-2440

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The Honorable Marsha J. Pechman

IN THE UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SAMMAMISH HOMEOWNERS, THOMAS E.HORNISH AND SUZANNE J. HORNISHJOINT LIVING TRUST, TRACY ANDBARBARA NEIGHBORS, ARUL MENEZESAND LUCRETIA VANDERWENDE,HERBERT MOORE AND ELYNNE MOORE,REID AND TERESA BROWN, SHAWN ANDTRINA HUARTE, ANNETTE MCNABB,EUGENE AND ELIZABETH MOREL, JOHNT. AND KATHLEEN MOODIE, GEORGEAND GINETTE TOSKEY, MARK ANDPATRICIA TOMLINSON, REID E.ANDSUSAN M. BROCKWAY, TERRY J. ANDMARGARET A. KLOMP, WILLIAM J.RISSBERGER, HAROLD A. AND MARY M.DIRAMIO, GREG AND KARMA CHAPMAN,LOUIS F. AND CARI A. KRAMP, CHRISTINEL. CALDERON TRUST, JOSEPH W. ANDLORA A. VANSICKLE, JAMES AND SUSANBUCHANAN, TREVOR NIES, MACKENZIESMITH AND KRISTIN ELISABETH TOTHSMITH, WILLIAM P. AND LYNDA K. OTTRESIDENCE TRUST, FRANK E. ANDPRISCILLA A. MCKULKA, JAY BOITANO,TED R. AND ELAINE M. DAVIS, J. HERBAND JUDY GILBO, MICHAEL A. ANDDIANE E. VASEY, PHILIP AND DOROTHYBRADBURY, GORDON CONGER,ELIZABETH CONGER MUELLER AND LOISJARMAN, JAMES AND LINDA FAY, DON M.

No. 15-CV-0028MJP

FIRST AMENDED COMPLAINT FORDECLARATORY RELIEF, TO QUIETTITLE, AND FOR AN INJUNCTION

HRB

Typewritten Text

Exhibit A


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JOHNSON, DAMON AND FERROLMCCARTNEY, JEFFREY AND JILL LUM,JOHN AND JOANNE MCKAY, RAYMONDA. AND CHERY CASTOR, GENE ANDHELEN FARRELL, WILLIAM AND DEBRAGOTTSCHALK, SCOTT AND JANINEBERGEVIN, JAMES ALLEN CREEVEY,JAMES AND DOROTHY STETSON,LAWRENCE NESS, THOMAS AND KARLAGOWAN, THOMAS AND JONI MASTERSON,WILLIAM AND KATHRYN GREVE, JERRYSPENCE, JAMES AND MARY O’NEIL, JOHNAND CAROLYN ROSSI, LANCE ANDMARILYN KILGORE, MITCHELL ANDCARRIE PARRISH, VINAYAK ANDSAMPADA BHALERAO, ROBERT ALLISON,VOLKER ELSTE AND GAIL UREEL,RUSSELL AN JUDITH ALBRIGHT, MARKAND DEE KAUSHAGEN, SAMMAMISHSHORE LTD, DOUGLAS THORPE, ANDJOHN AND JOYCE GARLAND, DOUGSCHUMACHER,DANIEL AND SUSAN DENTON, ANDPATRICIA HARRELL

Plaintiffs,

vs.

KING COUNTY, a Home Rule Charter County,and THE CITY OF SAMMAMISH, anIncorporated Municipality.

Defendants.

COME NOW Plaintiffs Sammamish Homeowners, Thomas E. Hornish and

Suzanne J. Hornish Joint Living Trust, Tracy and Barbara Neighbors, Arul Menezes

and Lucretia Vanderwende, Herbert and Elynne Moore, Reid and Teresa Brown, Shawn

and Trina Huarte, Annette McNabb, Eugene and Elizabeth Morel, John T. and Kathleen


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Moodie, George and Ginette Toskey, Mark and Patricia Tomlinson, Reid E. and Susan

M. Brockway, Terry J. and Margaret A. Klomp, William J. Rissberger, Harold A. and

Mary M. Diramio, Greg and Karma Chapman, Louis F. and Cari A. Kramp, Christine

L. Calderon Trust, Joseph W. and Lora A. VanSickle, James and Susan Buchanan,

Trevor Nies, Mackenzie Smith and Kristin Elisabeth Toth Smith, William P. and Lynda

K. Ott Residence Trust, Frank E. and Priscilla A. McKulka, Jay Boitano, Ted R. and

Elaine M. Davis, J. Herb and Judy Gilbo, Michael A. and Diane E. Vasey, Philip and

Dorothy Bradbury, Gordon Conger, Elizabeth Conger Mueller and Lois Jarman, James

and Linda Fay, Don M. Johnson, Damon and Ferrol McCartney, Jeffrey and Jill Lum,

John and Joanne McKay, Raymond A. and Chery Castor, Gene and Helen Farrell,

William and Debra Gottschalk, Scott and Janine Bergevin, James Allen Creevey, James

and Dorothy Stenson, Lawrence Ness, Thomas and Karla Gowan, Thomas and Joni

Masterson, William and Kathryn Greve, Jerry Spence, James and Mary O’Neil, John

and Carolyn Rossi, Lance and Marilyn Kilgore, Mitchell and Carrie Parrish, Vinayak

and Sampada Bhalerao, Robert Allison, Volker Elste and Gail Ureel, Russell and Judith

Albright, Mark and Dee Kaushagen, Sammamish Shore LTD, Douglas Thorpe, John

and Joyce Garland, Doug Schumacher, Daniel and Susan Denton, and Patricia Harrell

for their causes of action against King County and the City of Sammamish, pursuant to

the Revised Code of Washington § 7.28.010, et seq, and § 7.24.010, et. seq., and allege

as follows:


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NATURE OF ACTION

1. Plaintiffs are landowners who own fee title in land adjoining a 12.45

mile length of abandoned railroad right-of-way in King County, Washington between

milepost 7.3, near Redmond, and milepost 19.75, at Issaquah, in King County,

Washington along Lake Sammamish.

2. The railroad, both at the time of the acquisition of the right-of-way in the

late 1800s and the abandonment of the right-of-way in 1998, acquired an easement for

railroad purposes over and through the adjacent landowners’ land that was limited to

the surface of the adjacent landowners’ fee ownership in their land.

3. The railroad line in question was originally constructed by the Seattle,

Lake Shore & Eastern Railway Company (SLS&E) from May 1887 through March

1888. The SLS&E acquired rights-of-way across public lands under the 1875 Act,

easement deeds and prescriptive easements.

4. The 1875 Act granted railroad companies rights-of-way over public land

to construct tracks and operate railways. Requirements for obtaining a right-of-way

were set forth in the 1875 Act, and included filing a map of the intended railroad with

the local district land office and receiving approval from the Secretary of the Interior.

See 1875 Act, § 4 (codified at 43 U.S.C. § 937 (repealed by the Federal Land Policy

and Management Act of 1976, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743)). Pursuant

to the 1875 Act, between 1887 and 1891, the SLS&E took the necessary steps to

establish a railroad right-of-way across public land along the eastern shore of Lake

Sammamish in King County, Washington.


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5. On July 5, 1887, the SLS&E secured approval from the Department of

the Interior of their map identifying the location for proposed construction of a railroad

running generally along the eastern shoreline of Lake Sammamish, Washington.

Construction of the railroad was completed in 1888. On April 15, 1891, the SLS&E

filed a Map of Location showing the final location of the constructed railroad, with the

United States Land Office in Seattle, Washington.

6. On May 13, 1998, the Surface Transportation Board (“STB”) granted

Burlington Northern an exemption to abandon a 12.45 mile length of railroad between

milepost 7.3, near Redmond, and milepost 19.75, at Issaquah, in King County,

Washington. See id.

7. On September 16, 1998, the STB authorized The Land Conservancy of

Seattle and King County (TLC) to assume financial responsibility for the rights-of-way

pursuant to the National Trails System Act Amendments of 1983, Pub. L. No. 98-11, §

208, 97 Stat. 42, codified at 16 U.S.C. § 1247(d) (2006) (the “Trails Act”). See

Burlington N. & Santa Fe Ry. Co. - Abandonment Exemption - in King Cnty., WA,

STB Docket No. AB-6 (Sub. No. 380X), 1998 STB LEXIS 519, 1998 WL 638432.

8. The STB also authorized the issuance of a Notice of Interim Trail Use

(“NITU”) for the Burlington Northern right-of-way, permitting King County and the

TLC to establish a public recreational trail over the railroad right-of-way. The STB’s

ruling authorized conversion of the railroad rights-of-way into a recreational trail,

pursuant to 16 U.S.C. § 1247(d). The NITU was issued on September 18, 1998.


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9. King County subsequently reached an agreement with Burlington

Northern Santa Fe (“BNSF”) for use of the rights-of-way for trail purposes. On

September 29, 1998, counsel for the TLC informed the STB that the parties had reached

agreements railbanking the railroad corridor pursuant to the NITU. Since the STB

approved conversion of the railway to a trail, no railway carriers have used the railroad,

and the tracks have been removed from the rights-of-way.

10. King County, by and through The National Trails System Act

Amendments of 1983, 16 U.S.C. § 1247(d) (“Trails Act”), and a series of related

transactions, contracts, and deeds have improperly and illegally invaded and clouded

Plaintiffs’ fee ownership in their subsurface and aerial rights associated with the right-

of-way.

11. In order to complete construction of the hiking and biking trail, King

County must apply for an receive necessary licenses and permits from the City of

Sammamish, which process is now entering the final phases.

12. Plaintiffs seek, among other things, a declaratory judgment, a ruling to

quiet title, and an injunction, and any actual and statutory damages, attorneys’ fees, and

costs.

THE PARTIES

13. Sammamish Homeowners is comprised of over 400 landowners who

own land adjacent to the former railroad easement acquired by the King County in

1998. The Homeowners of Sammamish Homeowners own the fee title to the railroad’s

abandoned right-of-way that is now subject to an easement for an interim trail and


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possible future railroad reactivation pursuant to the Trails Act. (A copy of the

Certificate of Incorporation was attached as Exhibit A to the original complaint).

14. Plaintiff The Thomas E. Hornish and Suzanne J. Hornish Joint Living

Trust dated June 21, 2013, Thomas and Suzanne Hornish, trustees, are residents of

King County, Washington who own land adjacent to the former railroad easement

acquired by the King County in 1998. The Thomas E. Hornish and Suzanne J. Hornish

Joint Living Trust’s parcel number 062406-9042, was acquired on November 7, 2013

and includes the fee title to all that property of the abandoned right-of-way that is now

subject to an easement for an interim trail and possible future railroad reactivation

pursuant to the Trails Act. (A copy of the current deed evidencing ownership of the

above-described property was attached as Exhibit B to the original).

15. Plaintiffs Tracy and Barbara Neighbors are residents of King County,

Washington who own land adjacent to the former railroad easement acquired by the

King County in 1998. Tracy and Barbara Neighbors’ parcel number 072406-9006, was

acquired on June 22, 2011 and includes the fee title to all that property of the


possible future railroad reactivation pursuant to the Trails Act. (A copy of the current

deed evidencing ownership of the above-described property was attached as Exhibit C

to the original complaint).

16. Plaintiffs Arul Menezes and Lucretia Vanderwende are residents of King

County, Washington who own land adjacent to the former railroad easement acquired

by the King County in 1998. Arul Menezes and Lucretia Vanderwende’s parcels


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number 072406-9024, was acquired on July 22, 1997 and 172406-9079, was acquired

on March 19, 2015 and includes the fee title to all that property of the abandoned right-

of-way that is now subject to an easement for an interim trail and possible future

railroad reactivation pursuant to the Trails Act. (A copy of the current deed evidencing

ownership of the above-described property was attached as Exhibit D to the original).

17. Plaintiffs Herbert Carvel Moore and Elynne Moore are residents of King


by the King County in 1998. Herbert Moore and Elynne Moore’s parcel number

172406-9077, was acquired on August 29, 2002 and includes the fee title to all that

property of the abandoned right-of-way that is now subject to an easement for an

interim trail and possible future railroad reactivation pursuant to the Trails Act. (A

copy of the current deed evidencing ownership of the above-described property was

attached as Exhibit E to the original complaint).

18. Plaintiffs Reid and Teresa Brown are residents of King County,


King County in 1998. Reid and Teresa Brown’s parcel number 072406-9003, was

acquired on May 4, 1993 and includes the fee title to all that property to the centerline

of the abandoned right-of-way that is now subject to an easement for an interim trail

and possible future railroad reactivation pursuant to the Trails Act.

19. Plaintiffs Shawn and Trina Huarte are residents of King County,


King County in 1998. Shawn and Trina Huarte’s parcel number 072406-9041, was


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acquired on July 14, 2014 and includes the fee title to all that property to the centerline



20. Plaintiff Annette McNabb is a resident of King County, Washington

who owns land adjacent to the former railroad easement acquired by the King County

in 1998. Annette McNabb’s parcel number 072406-9030, was acquired on January 28,

2006 and includes the fee title to all that property to the centerline of the abandoned

right-of-way that is now subject to an easement for an interim trail and possible future

railroad reactivation pursuant to the Trails Act.

21. Plaintiffs Eugene and Elizabeth Morel are residents of King County,


King County in 1998. Eugene and Elizabeth Morel’s parcel numbers 072406-9008 and

072406-9090, were acquired on May 27, 1998 and includes the fee title to all that

property to the centerline of the abandoned right-of-way that is now subject to an

easement for an interim trail and possible future railroad reactivation pursuant to the

Trails Act.

22. Plaintiffs John T. and Kathleen Moodie are residents of King County,


King County in 1998. John T. and Kathleen Moody’s parcel number 357530-0037 was

acquired on February 12, 2010 and includes the fee title to all that property to the

centerline of the abandoned right-of-way that is now subject to an easement for an

interim trail and possible future railroad reactivation pursuant to the Trails Act.


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23. Plaintiffs George and Ginette Toskey are residents of King County,


King County in 1998. George and Ginette Toskey’s parcel number 202506-9064 was

acquired on February 9, 1999 and includes the fee title to all that property to the



24. Plaintiffs Mark and Patricia Tomlinson are residents of King County,


King County in 1998. Mark and Patricia Tomlinson’s parcel number 202506-9060 was




25. Plaintiffs Reid E. and Susan M. Brockway are residents of King County,


King County in 1998. Reid E. and Susan M. Brockway’s parcel number 173870-0080

includes the fee title to all that property to the centerline of the abandoned right-of-way

that is now subject to an easement for an interim trail and possible future railroad

reactivation pursuant to the Trails Act.

26. Plaintiffs Terry J. and Margaret A. Klomp are residents of King County,


King County in 1998. Terry J. and Margaret A. Klomp’s parcel number 173870-0060

was acquired on April 6, 2013 and includes the fee title to all that property to the


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27. Plaintiff William J. Rissberger is a resident of King County, Washington


in 1998. William J. Rissberger’s parcel number 062406-9084 was acquired on

September 3, 2008 and includes the fee title to all that property to the centerline of the


possible future railroad reactivation pursuant to the Trails Act.

28. Plaintiffs Harold A. and Mary M. Diramio are residents of King County,


King County in 1998. Harold A. and Mary M. Diramio’s parcel number 012450-0150

was acquired on August 28, 1996 and includes the fee title to all that property to the



29. Plaintiffs Greg and Karma Chapman are residents of King County,


King County in 1998. Greg and Karma Chapman’s parcel number 202506-9119 was

acquired on March 10, 1998 and includes the fee title to all that property to the



30. Plaintiffs Louis F. and Cari A. Kramp are residents of King County,



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King County in 1998. Louis F. and Cari A. Kramp’s parcel number 192506-9085 was

acquired on March 11, 2002 and includes the fee title to all that property to the



31. Plaintiff Christine L. Calderon Trust is a resident of King County,

Washington who owns land adjacent to the former railroad easement acquired by the

King County in 1998. Christine L. Calderon Trust’s parcel number 173870-0095 was

acquired on June 16, 1998 and includes the fee title to all that property to the centerline



32. Plaintiffs Joseph W. and Lora A. VanSickle are residents of King


by the King County in 1998. Joseph W. and Lora A. VanSickle’s parcel number

192506-9168 was acquired on June 25, 1998 and includes the fee title to all that



Trails Act.

33. Plaintiffs James and Susan Buchanan are residents of King County,


King County in 1998. James and Susan Buchanan’s parcel numbers 357530-0004 and

357530-0017 was acquired on October 24, 1991 and February 17, 1989 and includes

the fee title to all that property to the centerline of the abandoned right-of-way that is


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now subject to an easement for an interim trail and possible future railroad reactivation

pursuant to the Trails Act.

34. Plaintiff Trevor Nies is a resident of King County, Washington who

owns land adjacent to the former railroad easement acquired by the King County in

1998. Trevor Nies’ parcel number 172406-9046 was acquired on August 5, 2011 and

includes the fee title to all that property to the centerline of the abandoned right-of-way

that is now subject to an easement for an interim trail and possible future railroad


35. Plaintiffs Mackenzie Smith and Kristin Elisabeth Toth Smith are

residents of King County, Washington who own land adjacent to the former railroad

easement acquired by the King County in 1998. Mackenzie Smith and Kristin

Elisabeth Toth Smith’s parcel number 173870-0010 was acquired on February 3, 2011

and includes the fee title to all that property to the centerline of the abandoned right-of-

way that is now subject to an easement for an interim trail and possible future railroad


36. Plaintiffs William P. and Lynda K. Ott Residence Trust is a resident of

King County, Washington who own land adjacent to the former railroad easement

acquired by the King County in 1998. William P. and Lynda K. Ott Residence Trust’s

parcel number 173870-0030 was acquired on February 9, 2001 and includes the fee title

to all that property to the centerline of the abandoned right-of-way that is now subject

to an easement for an interim trail and possible future railroad reactivation pursuant to

the Trails Act.


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37. Plaintiffs Frank E. and Priscilla A. McKulka are residents of King


by the King County in 1998. Frank E. and Priscilla A. McKulka’s parcel number

062406-9051 was acquired on June 18, 2004 and includes the fee title to all that



Trails Act.

38. Plaintiff Jay Boitano is a resident of King County, Washington who


1998. Jay Boitano’s parcel number 062406-9059 was acquired on October 10, 1995




39. Plaintiffs Ted R. and Elaine M. Davis are residents of King County,


King County in 1998. Ted R. and Elaine M. Davis’s parcel number 072406-9020 was

acquired on September 21, 1999 and includes the fee title to all that property to the



40. Plaintiffs J. Herb and Judy Gilbo are residents of King County,


King County in 1998. J. Herb and Judy Gilbo’s parcel number 322506-9045 was


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acquired on November 5, 1982 and includes the fee title to all that property to the



41. Plaintiffs Michael A. and Diane E. Vasey are residents of King County,


King County in 1998. Michael A. and Diane E. Vasey’s parcel number 172406-9031

was acquired on June 26, 2011 and includes the fee title to all that property to the



42. Plaintiffs Philip and Dorothy Bradbury are residents of Carmel County,

California who own land adjacent to the former railroad easement acquired by the King

County in 1998. Philip and Dorothy Bradbury’s parcel number 172406-9039 was




43. Plaintiffs Gordon Conger, Elizabeth Conger Mueller and Lois Jarman

are residents of King County, Washington who own land adjacent to the former railroad

easement acquired by the King County in 1998. Gordon Conger, Elizabeth Conger

Mueller and Lois Jarman’s parcel number 072406-9032 was acquired on January 6,





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44. Plaintiffs James and Linda Fay are residents of King County,


King County in 1998. James and Lina Fay’s parcel number 192506-9091 was acquired

on April 28, 1982 and includes the fee title to all that property to the centerline of the


possible future railroad reactivation pursuant to the Trails Act.

45. Plaintiff Don M. Johnson is a resident of King County, Washington who


1998. Don M. Johnson’s parcel number 357530-0033 was acquired on March 13, 1996




46. Plaintiffs Damon and Ferrol McCartney are residents of King County,


King County in 1998. Damon and Ferrol McCartney’s parcel number 173870-0007

was acquired on May 31, 2011 and includes the fee title to all that property to the



47. Plaintiffs Jeffrey and Jill Lum are residents of King County, Washington

who own land adjacent to the former railroad easement acquired by the King County in

1998. Jeffrey and Jill Lum’s parcel number 357530-0064 was acquired on March 25,



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48. Plaintiffs John and Joanne McKay are residents of King County,


King County in 1998. John and Joann McKay’s parcel number 202506-9065 was

acquired on September 29, 2014 and includes the fee title to all that property to the



49. Plaintiffs Raymond and Chery Castor are residents of King County,


King County in 1998. Raymond and Chery Castor’s parcel number 357530-0024 was




50. Plaintiffs Gene and Helen Farrell are residents of King County,


King County in 1998. Gene and Helen Farrell’s parcel number 172406-9017 was




51. Plaintiffs William and Debra Gottschalk are residents of King County,



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King County in 1998. William and Debra Gottschalk’s parcel number 072406-9055

was acquired on July 6, 2009 and includes the fee title to all that property to the



52. Plaintiffs Scott and Janine Bergevin are residents of King County,


King County in 1998. Scott and Janine Bergevin’s parcel number 192506-9112 was

acquired on April 21, 2000 and includes the fee title to all that property to the centerline



53. Plaintiff James Allen Creevey is a resident of King County, Washington


in 1998. James Allen Creevey’s parcel number 357530-0071 includes the fee title to all

that property to the centerline of the abandoned right-of-way that is now subject to an


Trails Act.

54. Plaintiffs James and Dorothy Stenson are residents of King County,


King County in 1998. James and Dorothy Stenson’s parcel number 752590-0080 was





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55. Plaintiff Lawrence Ness is a resident of King County, Washington who


1998. Lawrence Ness’ parcel number 868229-0310 was acquired on October 27, 2006




56. Plaintiffs Thomas and Karla Gowan are residents of King County,


King County in 1998. Thomas and Karla Gowan’s parcel number 077710-0050 was




57. Plaintiffs Thomas and Joni Masterson are residents of King County,


King County in 1998. Thomas and Joni Masterson’s parcel number 752590-0070 was

acquired on October 24, 2013 and includes the fee title to all that property to the



58. Plaintiffs William and Kathyrn Greve are residents of King County,


King County in 1998. William and Kathyrn Greve’s parcel number 072406-9059 was



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59. Plaintiff Jerry Spence is a resident of King County, Washington who


1998. Jerry Spence’s parcel number 342107-9032 was acquired on February 17, 2015




60. Plaintiffs James and Mary O’Neil are residents of King County,


King County in 1998. James and Mary O’Neil’s parcel number 173870-0050 was

acquired on January 25, 2008 and includes the fee title to all that property to the



61. Plaintiffs John and Carolyn Rossi are residents of King County,


King County in 1998. John and Carolyn Rossi’s parcel number 173870-0130 was




62. Plaintiffs Lance and Marilyn Kilgore are residents of King County,



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King County in 1998. Lance and Marilyn Kilgore’s parcel number 062406-9066 was




63. Plaintiffs Mitchell and Carrie Parrish are residents of King County,


King County in 1998. Mitchell and Carolyn Parrish’s parcel number 192506-9093 was




64. Plaintiffs Vinayak and Sampada Bhalero are residents of King County,


King County in 1998. Vinayak and Sampada Bhalero’s parcel number 172406-9059

was acquired on May 24, 2014 and includes the fee title to all that property to the



65. Plaintiff Robert Allison is a resident of King County, Washington who


1998. Robert Allison’s parcel number 192506-9076 includes the fee title to all that



Trails Act.


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66. Plaintiffs Volker Elste and Gail Ureel are residents of King County,


King County in 1998. Volker Elste and Gail Ureel’s parcel number 072406-9057 was




67. Plaintiffs Russell and Judith Albright are residents of King County,


King County in 1998. Russell and Judith Albright’s parcel number 077710-0110 was

acquired on August 7, 2012 and includes the fee title to all that property to the



68. Plaintiffs Mark and Dee Kaushagen are residents of King County,


King County in 1998. Russell and Dee Kaushagen parcel number 322506-9041 was




69. Plaintiff Sammamish Shore LTD is a corporation in King County,

Washington who owns land adjacent to the former railroad easement acquired by the

King County in 1998. Sammamish Shore LTD’s parcel number 357530-0011 was



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70. Plaintiff Douglas Thorpe is a resident of King County, Washington who


1998. Douglas Thorpe’s parcel number 752590-0075 was acquired on March 31, 1997




71. Plaintiffs John and Joyce Garland are residents of King County,


King County in 1998. John and Joyce Garland’s parcel number 077710-0075 was

acquired on January 5, 2011 and includes the fee title to all that property to the



72. Plaintiff Doug Schumaher is a resident of King County, Washington


in 1998. Doug Schumacher’s parcel number 072406-9031 was acquired on June 18,




73. Plaintiffs Daniel and Susan Denton are residents of King County,



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King County in 1998. Daniel and Susan Denton’s parcel number 357530-0020 was

acquired on December 23, 2005 and includes the fee title to all that property to the



74. Plaintiff Patricia Harrell is a resident of King County, Washington who


1998. Patricia Harrell’s parcel number 892010-0089 was acquired on October 10, 2011




75. King County is a home rule charter county and a political subdivision of

the State of Washington.

76. The City of Sammamish was incorporated under Washington law on

August 31, 1999.

JURISDICTION AND VENUE

77. This Court has jurisdiction pursuant to the Revised Code of Washington

§ 7.28.010 et seq and 7.24.010 et seq. because the Defendants have clouded the title to

Plaintiffs’ property. The Defendants only obtained an easement for trail use over the

surface of Plaintiffs’ property by and through implementation of the Trails Act. This

action presents a claim arising under the laws of the United States as well as the laws of

Washington.


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78. Pursuant to the Revised Code of Washington § 4.12.10, venue is proper

because (1) Defendants reside in King County; (2) a substantial part of the events or

omissions giving rise to the claims occurred in King County; and (3) all of the property

that is the subject of this action is situated in King County.

FACTS PERTINENT TO ALL CAUSES FOR RELIEF

79. In the late 1800s, SLS&E acquired land to construct their railroad right-

of-way along Lake Sammamish by way of the 1875 Act, easement deeds and

prescriptive easements.

80. The original conveyances to the railroad have already been analyzed and

determined to convey mere easements for railroad purposes by Judge Marian Blank

Horn of the United States Court of Federal Claims in Beres v. United States, 104 Fed.

Cl. 408 (Fed. Cl. 2012). Judge Horn’s Opinion and Order, rendered on April 5, 2012,

concluded that the conveyances at issue in this case were conveyances of easements to

the railroad for their railroad purposes only and that the easement currently on

Plaintiffs’ land is a surface easement for recreational trail use with the potential

reactivation of a railroad.

81. The Seattle, Lake Shore & Eastern Railway Company changed names

and ownership on several occasions over many decades. After many changes in

ownership and acquisition of the line from previous railroads, the Burlington Northern

Sante Fe Railroad (“BNSF”) became the rail operator. BNSF operated the railroad line

over the railroad corridor for a time and ultimately stopped using the right-of-way for

the operation of a railroad.


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82. The Trails Act authorizes the STB, the governmental entity responsible

for regulating railroads and their common carrier obligations, to “preserve for possible

future railroad use rights-of-way not currently in service and to allow interim use of the

land as recreational trails.”

83. Congress enacted the Trails Act to address the national problem of

railroad abandonments and the loss of the national network of rights-of-way. The

Trails Act authorizes the STB to preserve railroad corridors or rights-of-way not

currently in use for train service for possible future rail use by converting those rights-

of-way into recreational trails. In essence, the Trails Act allows a railroad to relinquish

responsibility for a rail line by transferring the corridor to an entity that will use it as a

recreational trail. Although the corridor is not used as a railroad during the period of

interim trail use, it remains intact for potential future use for rail service. This process

is called “railbanking.”

84. Pursuant to the Trails Act, before a railroad corridor may be converted

into a recreational trail, the railroad must either initiate abandonment proceedings with

the STB under 49 U.S.C. § 10903 or seek an exemption from the ordinary abandonment

procedures under 49 U.S.C. § 10502. Under either procedure, abandonment of the rail

line and right-of-way will not be approved by the STB if a qualified trail provider

submits to the STB a request to use the right-of-way as a recreational trail.

85. If the trail provider submits a statement of willingness to assume

financial and legal responsibility to the STB and the railroad, the STB will issue a


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NITU, which preserves the STB’s jurisdiction over the rail corridor while the parties

negotiate an Interim Trail Use Agreement. 49 C.F.R. § 1152.29(c).

86. The NITU preserves the STB’s jurisdiction over the rail corridor, allows

the railroad to discontinue operations and remove track and equipment, and affords the

railroad and the trail provider 180 days to negotiate a railbanking and Trails Use

Agreement. During this period, the railroad will negotiate an agreement for the transfer

of the corridor to the trail operator.

87. If an agreement is ultimately reached, the NITU automatically authorizes

the interim trail use. If the STB takes no further action, the trail sponsor then may

assume management of the right-of-way, subject only to the right of the railroad to

reassert control of the property for restoration of rail service. If an agreement is not

reached, the railroad will be allowed to abandon the line, at which time the STB’s

jurisdiction over the right-of-way terminates and the fee ownership in the rail corridor

returns to the adjacent landowners.

88. In 1998, BNSF filed a Petition for Exemption to abandon the line with

the STB. On September 16, 1998 the STB authorized the Land Conservancy of Seattle

and King County to assume financial responsibility for the corridor and the conversion

of the corridor into a recreational trail. The NITU from the STB was filed pursuant to

the Trails Act and was attached as Exhibit F to the original complaint.

89. Pursuant to the Trails Act and its implementing regulations, King

County entered into an interim Trail Use Agreement with BNSF on September 29, 1998

to railbank the railroad corridor from milepost 7.3 near Redmond and milepost 19.75 at


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Issaquah, in King County. Washington, subject to reactivation for the resumption of

interstate freight service. The interim Trail Use Agreement designated King County as

the interim trail user for railbanking purposes. The Trail Use Agreement was attached

as Exhibit G to the original complaint.

90. King County, through the Quit Claim Deed from BNSF, and pursuant to

the Trails Act, acquired an easement over the surface of the right-of-way, which

pursuant to the Trails Act, is now an easement for a hiking and biking trail with the

possible reactivation of a railroad. King County, who improperly and illegally

attempted to usurp the landowners’ fee interests in the subsurface rights and improperly

is attempting to claim ownership in land that belongs to Plaintiffs, which King County

has no right to do.

91. King County only acquired a surface easement from BNSF pursuant to

the Trails Act. King County could only and did only receive a surface easement by and

through the Quit Claim Deed with and from BNSF, but has repeatedly made false

claims and representations of fee ownership. King County’s easement from the BNSF,

to the extent it purportedly grants any rights beyond the surface of Plaintiffs’ land, is

invalid and unenforceable.

COUNT I - DECLARATORY JUDGMENT

For Count I against King County, Plaintiffs Sammamish Homeowners, Tom and

Suzanne Hornish, Tracy and Barbara Neighbors, Arul Menezes and Lucretia

Vanderwende, Herbert and Elynne Moore, Reid and Teresa Brown, Shawn and Trina

Huarte, Annette McNabb and Eugene and Elizabeth Morel, John T. and Kathleen


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Moodie, George and Ginette Toskey, Mark and Patricia Tomlinson, Reid E. and Susan

M. Brockway, Terry J. and Margaret A. Klomp, William J. Rissberger, Harold A. and

Mary M. Diramio, Greg and Karma Chapman, Louis F. and Cari A. Kramp, Christine

L. Calderon Trust, Joseph W. and Lora A. VanSickle, James and Susan Buchanan,

Trevor Nies, Mackenzie Smith and Kristin Elisabeth Toth Smith, William P. and Lynda

K. Ott Residence Trust, Frank E. and Priscilla A. McKulka, Jay Boitano, Ted R. and

Elaine M. Davis, J. Herb and Judy Gilbo, Michael A. and Diane E. Vasey, Philip and

Dorothy Bradbury, Gordon Conger, Elizabeth Conger Mueller and Lois Jarman, James

and Linda Fay, Don M. Johnson, Damon and Ferrol McCartney, Jeffrey and Jill Lum,

John and Joanne McKay, and Raymond, Chery Castor Gene and Helen Farrell, William

and Debra Gottschalk, Scott and Janine Bergevin, James Allen Creevey, James and

Dorothy Stenson, Lawrence Ness, Thomas and Karla Gowan, Thomas and Joni

Masterson, William and Kathryn Greve, Jerry Spence, James and Mary O’Neil, John

and Carolyn Rossi, Lance and Marilyn Kilgore, Mitchell and Carrie Parrish, Vinayak

and Sampada Bhalerao, Robert Allison, Volker Elste and Gail Ureel, Russell and Judith

Albright, Mark and Dee Kaushagen, Sammamish Shore LTD, Douglas Thorpe, John

and Joyce Garland, Doug Schumacher, Daniel and Susan Denton, and Patricia Harrell

allege as follows:

92. Plaintiffs hereby incorporate by reference paragraphs 1-91 as though

fully set forth herein.

93. Plaintiffs own the underlying fee in the railroad right-of-way adjacent to

their property, including subsurface and aerial rights.


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94. BNSF, prior to implementation of the Trails Act and the granting of a

quit claim deed to King County, possessed an easement for railroad purposes on the

surface of Plaintiffs’ fee ownership in the railroad’s right-of-way.

95. King County acquired BNSF’s easement, which is now an easement for

a hiking and biking trail with the potential reactivation of a railroad pursuant to the

Trails Act, on the surface of Plaintiffs’ fee ownership.

96. Pursuant to the Trails Act, BNSF abandoned their easement for railroad

purposes on the surface of Plaintiffs’ fee ownership and King County, as trail operator

under the Trails Act, acquired a surface easement for a hiking and biking trail with the

possible reactivation of a railroad.

97. Although King County merely acquired a surface easement for a hiking

and biking trail on Plaintiffs’ property with the possible reactivation of a railroad, is

now claiming rights beyond a surface easement for a recreational trail on Plaintiffs’

property.

98. Under the Uniform Declaratory Judgments Act, Chapter 7.24 of the

Revised Code of Washington, the Court has jurisdiction to declare the rights of the

parties with respect to the railroad right-of-way at issue. Specifically, under Section

7.24.020 of the Revised Code of Washington, any person claiming an interest under a

deed, written contract, or statute is entitled to a determination of rights arising under the

deed, written contract, or statute.

99. Plaintiffs are entitled to a declaration of rights that the original source

conveyances to the railroad were easements, that the easements were for railroad


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purposes only, and that they are the fee owners of the railroad right-of-way at issue,

because King County only acquired a surface easement for a hiking and biking trail

with the possible reactivation of a railroad pursuant to the Trails Act and has no right to

utilize any area of the corridor beyond the area used for railroad purposes.

COUNT II - QUIET TITLE

For Count II against King County, Plaintiffs Tracy and Barbara Neighbors, Arul

Menezes and Lucretia Vanderwende, Herbert and Elynne Moore, and Reid and Teresa

Brown, Shawn and Trina Huarte, Annette McNabb, Eugene and Elizabeth Morel,

Volker Elste and Gail Ureel, Ted and Elaine Davis, and Doug Schumacher allege as

follows:

100. Plaintiff incorporates by reference paragraphs 1-99 as though fully set

forth herein.

101. BNSF held an easement for railroad purposes by way of a prescriptive

easement and the easement width is dictated by the railroad’s historic use.

102. Before the STB issued the NITU applicable to Plaintiff’s land, King

County acquired the right-of-way from BNSF through a quit claim deed on April 23,

1997, was attached as Exhibit H to the original complaint. By and through operation of

the NITU, the Trails Act, and the quit claim deed, King County acquired an easement

on the surface of Plaintiff’s land and Plaintiff’s land was then encumbered with a

surface easement for a hiking and biking trail with the possible reactivation of a

railroad.


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103. Although King County acquired an easement on the surface of Plaintiff’s

land, it has asserted that it acquired Plaintiff’s fee ownership in the railroad corridor

including Plaintiff’s subsurface and aerial rights, in addition to Plaintiff’s surface rights,

as well as greater widths than the railroad owned or utilized.

104. King County, by and through the Quit Claim deed from the BNSF,

acquired BNSF’s easement for a hiking and biking trail with the possible reactivation of

a railroad, which are the specific legal rights that King County assumed as the Trail

User under the Trails Act.

105. The conduct of King County in claiming to be able to utilize Plaintiff’s

subsurface and aerial rights for their own purposes, as well as at greater widths than the

railroad had, amounts to a cloud on Plaintiffs’ fee ownership in their subsurface and

aerial rights.

106. Pursuant to § 7.28.010 of the Revised Code of Washington, and because

the Plaintiffs own the fee interest in the right-of-way, the actions and conduct of King

County in claiming fee ownership of the right-of-way and an interest in Plaintiff’s

subsurface and aerial rights, as well as at greater widths that the railroad had, has

improperly placed a cloud on Plaintiff’s title.

107. As a direct and proximate result of the cloud on Plaintiff’s title created

by the unlawful acts and conduct of King County in claiming rights to Plaintiff’s

subsurface and aerial rights, as well as at greater widths that the railroad had, Plaintiff is

entitled to an order quieting any claim of any interest in the subsurface and aerial rights

by King County.


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COUNT III – INJUNCTION

For Count III against King County and the City of Sammamish, Plaintiffs

Plaintiffs Tracy and Barbara Neighbors, Arul Menezes and Lucretia Vanderwende,

Herbert and Elynne Moore, and Reid and Teresa Brown, Shawn and Trina Huarte,

Annette McNabb, Eugene and Elizabeth Morel, Volker Elste and Gail Ureel, Ted and

Elaine Davis, and Doug Schumacher allege as follows:

108. Plaintiffs hereby incorporate paragraphs 1-107 as though fully set forth

herein.

109. Plaintiffs own the underlying fee in the former railroad corridor and

possess a clear legal and equitable right to the former railroad corridor which was not

used for railroad purposes prior to being converted to a hiking and biking trail.

110. King County alleges to have legal rights in Plaintiffs’ land, and intends

to usurp Plaintiffs’ rights in their land, including immediate invasion of Plaintiffs’

rights, including the intention to widen a current hiking and biking path, which King

County has no legal right to do.

111. King County has applied for a permit from the City of Sammamish in

order to allow widening of the hiking and biking path but the City of Sammamish has

no legal right to issue any permit to widen the hiking and biking path to encroach or

invade upon Plaintiffs’ fee ownership.

112. King County publically alleges to have rights and publically alleges their

intention of widening the hiking and biking path, and the threat of widening the current


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hiking and biking path is an immediate threat to invade Plaintiffs’ ownership and use of

their property.

113. If the hiking and biking path is widened, Plaintiffs’ will suffer from an

actual and substantial injury, including flooding, the loss of trees, and the damage of

extremely close proximity of the hiking and biking trail substantially close to their

homes, as well as other injury to their properties.

114. Due to the substantial injury and damage that will result from the

permitting process if the hiking and biking path is widened, this Court should enjoin the

City of Sammamish from issuing any permits for widening of the current hiking and

biking path, as well as enjoin King County from continuing any work on the current

hiking and biking path until this Court resolves the ownership interests in the

underlying fee in the current hiking and biking path.

WHEREFORE, Plaintiffs respectfully request that judgment be entered for

Plaintiff and against King County quieting title in Plaintiffs’ favor and for a declaratory

judgment declaring that King County only obtained a surface easement for a hiking and

biking trail with the possible reactivation of a railroad by and through the Trails Act

and the Quit Claim Deed with BNSF, and for such further monetary and equitable relief

and for allowable costs and attorney fees as the Court may deem just and proper.

Date: April 13, 2015 BAKER STERCHI COWDEN & RICE, L.L.C.

By /s/ Thomas S. StewartThomas S. Stewart2400 Pershing Road, Suite 500Kansas City, MO 64108


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Telephone: (816) 471-2121Facsimile: (816) [email protected]

AND

RODGERS DEUTSCH & TURNER, P.L.L.C.Daryl A. Deutsch, WSBA No. 11003Rodgers Deutsch & Turner, P.L.L.C.3 Lake Bellevue Dr. Suite 100Bellevue, WA 98005Telephone (425) 455-1110Facsimile (425) [email protected] FOR PLAINTIFFS

mailto:[email protected]

mailto:[email protected]

Documents

First Amended Complaint - Sammamish Home · PDF filefirst amended complaint for declaratory relief, to quiet title and for an injunction page 1 ... mccartney, jeffrey and jill lum,