Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 1 of 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 KING COUNTY, a home rule charter county, No. __________ Plaintiff, 11 12 13 14 15 16 17 COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS v. MICHAEL J. ABERNATHY; GINA M. ABERNATHY; SCOTT C. BAISCH; JENNIFER C. BAISCH; WARREN BERES; VICKI BERES; JODY J. BREWSTER; ANDREW J. FARACI; ALLISA E. FARACI; PATRICIA J. HARRELL; ANDRZEJ MILKOWSKI; LISA M. MILKOWSKI; MICHAEL PARROTT; AND DIANA PARROTT, Defendants. 18 19 20 I. 1. INTRODUCTION In this action, King County seeks to quiet title to that portion of the former railroad, 21 known as the East Lake Sammamish Railroad Corridor (“Corridor”), located in Lot 4 of Section 22 6, Township 24N, Range 6 East (“Lot 4”). King County seeks to proactively protect the public’s 23 right to enjoyment of the Corridor land and waterlands adjoining Lake Sammamish and 24 encompassing the East Lake Sammamish Trail, which is an essential part of the vibrant regional 25 recreational trail system. COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 1 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 2 of 9 1 2. Defendants’ use of public lands without permission and without cost to enhance 2 their homes and estates near Lake Sammamish by building and maintaining docks, boat lifts, 3 cabanas, decks, walkways, hardscaping, fences and other structures constitutes trespass. Their 4 encroachments and uses should be ejected and payments made for remediation and restoration of 5 the public lands, along with the payment of back rents. 6 7 II. 3. PARTIES Plaintiff King County is a municipal corporation organized and existing under the 8 laws of the State of Washington as a home rule charter county. King County owns the East Lake 9 Sammamish Railroad Corridor (“Corridor”), which includes King County Tax Parcel No. 10 11 0624069013, adjoining Defendants’ properties. 4. Defendants Michael J. Abernathy and Gina M. Abernathy are residents of King 12 County and own property, King County Tax Parcel No. 8920100071, adjoining King County’s 13 Corridor. 14 5. 15 16 17 18 19 20 21 22 23 Defendants Scott C. Baisch and Jennifer C. Baisch are residents of King County and own property, King County Tax Parcel No. 8920100077, adjoining King County’s Corridor. 6. Defendants Warren Beres and Vicki Beres are residents of King County and own property, King County Tax Parcel No. 8920100082, adjoining King County’s Corridor. 7. Defendant Jody J. Brewster is a resident of King County and owns property, King County Tax Parcel No. 8920100070, adjoining King County’s Corridor. 8. Defendants Andrew J. Faraci and Allisa E. Faraci are residents of King County and own property, King County Tax Parcel No. 8920100104, adjoining King County’s Corridor. 9. Defendant Patricia J. Harrell is a resident of King County and owns property, King County Tax Parcel Nos. 8920100089 and 8920100105, adjoining King County’s Corridor. 24 25 COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 2 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 3 of 9 1 10. Defendants Andrzej Milkowski and Lisa M. Milkowski are residents of King 2 County and own property, King County Tax Parcel No. 8920100084, adjoining King County’s 3 Corridor. 4 5 11. own property, King County Tax Parcel No. 8920100080, adjoining King County’s Corridor. 6 7 8 9 Defendants Michael Parrott and Diana Parrott are residents of King County and III. 12. JURISDICTION & VENUE This Court has jurisdiction over this litigation pursuant to 28 U.S.C. § 2201, 28 U.S.C. § 1331, and 28 U.S.C. § 1367. 13. This Court is the proper venue for this dispute pursuant to 28 U.S.C. § 1391. 10 IV. 11 FACTS 12 A. The East Lake Sammamish Trail and East Lake Sammamish Rail Corridor. 13 14. The East Lake Sammamish Trail (“ELST”) is an 11-mile “missing link” in a 44- 14 mile-long regional trail corridor that will connect the Burke-Gilman Trail, the Sammamish River 15 Trail, the Marymoor Connector Trail, and the Issaquah-Preston Trail, linking Seattle to the 16 Eastside and the Cascade Foothills. The ELST is a County park, and once construction is 17 completed, it will provide a multi-use recreational trail and non-motorized transportation corridor 18 to residents from the City of Sammamish, King County, and throughout the region. 19 15. King County completed construction of an interim, gravel trail in 2006. 20 16. King County is currently upgrading the interim, gravel trail to a permanent, paved 21 trail. King County has divided the 11-mile ELST into five segments for planning purposes. The 22 first segment, located in the City of Redmond, was completed in 2011. The second segment, 23 located in the City of Issaquah, was completed in 2013. The third segment, located in the City of 24 Sammamish, was completed in 2015. The fourth segment, is a 1.2 mile section from SE 43rd Way 25 to SE 33rd Street, known as South Sammamish Segment A, which was completed in January 2018. COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 3 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 4 of 9 1 17. The final segment of the ELST to be constructed is a 3.6 mile section, which runs 2 from SE 33rd Street to Inglewood Hill Road and is known as South Sammamish Segment B. The 3 Clearing and Grading Permit application and 90% design plan set for South Sammamish Segment 4 B has been approved by the City of Sammamish. Staking and preparing the Corridor will begin 5 in 2020 for construction in 2021. 6 7 8 18. property that adjoins the ELST. B. The ELST Is Built Within a Federally-Regulated Railroad Corridor Owned By King County. 19. The Seattle, Lake Shore & Eastern Railway Company (“SLS&E”), a predecessor 9 10 South Sammamish Segment B is the section of the ELST where Defendants own of BNSF Railway Co. (“BNSF”), originally assembled the Corridor that now contains the ELST 11 in the 1890s. The Corridor contains a mix of property interests acquired as railroad easements or 12 fee simple, depending on the terms of each acquisition. See Hornish v. King Cnty., No. 2:15-cv13 00284-MJP, 182 F. Supp. 3d 1124 (W.D. Wash. 2016) (J. Pechman), affirmed 899 F.3d 680 (9th 14 Cir. 2018). 15 20. On July 5, 1887, the Department of Interior approved a map of the SLS&E’s 16 proposed route along Lake Sammamish. The approved map included Corridor located in Lot 4 of 17 Section 6, Township 24N, Range 6 East (“Lot 4”), which is now adjacent to Defendants’ 18 properties. The SLS&E acquired Lot 4 as a land grant from the United States through the General 19 20 21 Railway Right of Way Act of 1875, 18 Stat. 482, 43 U.S.C. §§ 934-939 (repealed 1976) (“1875 Act”). Pursuant to the 1875 Act, the SLS&E’s title to Lot 4 dates back to the Department of Interior’s approval of the proposed route on July 5, 1887. 22 21. Court decisions involving some of the Defendants in this case have previously 23 recognized that the railroad acquired the Corridor within Lot 4 through the 1875 Act and that the 24 Corridor is 200 feet wide including in Beres v. United States, 104 Fed. Cl. 408, 413 (2012) and 25 King County v. Beres, 118 Wn. App. 1003 (2003). Under the 1875 Act, railroads were granted COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 4 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 5 of 9 1 exclusive railroad easements that are 200 feet wide, 100 feet on either side of the centerline of the 2 Corridor. Railroad easements created by the 1875 Act are immune from adverse possession. 3 22. The SLS&E completed construction of its tracks on the Corridor in 1888. 4 23. The Trails Act preempts any extinguishment of any railroad easements and any 5 reversion to another owner that would normally occur under state law doctrines regarding 6 discontinuation of use. The Trails Act “takes” these interests, which entitled affected persons to 7 seek compensation from the United States. In this way, through the Trails Act, the Corridor 8 remains under STB jurisdiction so that it can be reactivated for rail use. 9 24. In early 1997, BNSF conveyed its ownership interest in the Corridor to The Land 10 Conservancy (“TLC”) through a duly-recorded quit claim deed. The detailed metes and bounds 11 description in the 1997 quit claim deed shows that the Corridor is 200 feet wide next to each of 12 the Defendants’ properties. On September 16, 1998, the Surface Transportation Board issued an 13 order “railbanking” the Corridor under the Trails Act and authorizing interim use as a recreational 14 trail. On September 18, 1998, TLC conveyed the Corridor to King County through a duly- 15 recorded quit claim deed. The detailed metes and bounds description in the 1998 quit claim deed 16 shows that the Corridor is 200 feet wide next to each of the Defendants’ properties. 17 25. King County conducted an official survey of the entire Corridor in 1998. The 18 survey confirms the width of the Corridor in Lot 4 as 200 feet wide. The 1998 survey is filed and 19 of record with the County. 20 26. Throughout the Corridor, including in Lot 4, King County either owns the property 21 it acquired through the duly-recorded quit claim deed in fee, or holds at least a railroad easement, 22 which grants King County exclusive use, possession, and control of the land, and the owner, if 23 any of any underlying fee interest has no right to use, occupy, or interfere with the same in any 24 manner whatever. 25 COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 5 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 6 of 9 1 27. Court decisions involving some of the Defendants in this action have previously 2 held that adjacent property owners in Lot 4 “have no right to use or occupy the railroad right of 3 way without permission from King County,” which “[a]s successor to the SLS&E…holds an 4 easement entitling it to exclusive use and occupancy of the railroad right of way.” 5 6 7 28. Because of the Trails Act, the Corridor remains a federally-regulated railroad corridor designated for interim use as a recreational trail. As stated in the Trails Act: 19 The Secretary of Transportation, the Chairman of the Surface Transportation Board, and the Secretary of the Interior, in administering the Railroad Revitalization and Regulatory Reform Act of 1976 [45 U.S.C. 801 et seq.], shall encourage State and local agencies and private interests to establish appropriate trails using the provisions of such programs. Consistent with the purposes of that Act, and in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Board shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use. 20 18 U.S.C. § 1247(d). The Trails Act also states: “Such trails may be designated and suitably 21 marked as parts of the nationwide system of trails by the States, their political subdivisions, or 22 other appropriate administering agencies with the approval of the Secretary of the Interior.” 23 § 1247(e). Consistent with these provisions, King County intends construction of the ELST to fill 24 the “missing link” in its system of regional trails. 8 9 10 11 12 13 14 15 16 17 18 25 COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 6 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 7 of 9 1 2 C. Adjacent Homeowners Use King County’s Corridor Without Permission, Including by Building and Maintaining Elaborate and Substantial Docks and Associated Structures on King County Property. 29. In the century since the SLS&E assembled the Corridor, numerous property 3 owners, including Defendants and their predecessors-in-interest, have built homes near the Lake. 4 The value of these often multi-million dollar properties rose dramatically after BNSF stopped 5 operating freight trains in the Corridor adjacent to their backyards. 6 30. Since BNSF stopped operating freight trains on the Corridor, dozens of those same 7 homeowners have filed lawsuits seeking to stop King County’s construction of a public trail 8 alongside their homes. At the same time, many of these homeowners, including the Beres 9 Defendants, have sought millions of dollars from the federal government for takings claims arising 10 by operation of the Trails Act. 11 31. Over the years, Defendants and their predecessors-in-interest have also built, 12 maintained and used a number of encroachments within the Corridor. These encroachments 13 include elaborate and substantial docks, boat lifts, decks, walkways, hardscaping, fences and other 14 structures. Defendants’ encroachments and uses trespass upon public lands owned by King 15 County. The entire width of the Corridor is part of the experience for trail users, whose enjoyment 16 of public lands has been and is curtailed by Defendants’ uses. 17 FIRST CAUSE OF ACTION: Quiet Title and Ejectment (All Defendants) 18 19 20 21 22 23 32. King County re-alleges and incorporates by reference the allegations contained in the previous paragraphs. 33. King County owns the Corridor in Lot 4 either as an exclusive railroad easement or in fee simple title. 24 25 COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 7 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 8 of 9 1 34. To the extent the Defendants or their predecessors in interest ever had any interest 2 in the underlying fee to the Corridor, those rights were taken by the federal government when it 3 issued the Notice of Interim Trail Use in 1998. 4 35. King County should be adjudged the legal owner of the Corridor in Lot 4. Under 5 RCW 7.28, title to the Corridor in Lot 4 should be quieted to King County and Defendants should 6 be ejected. SECOND CAUSE OF ACTION Trespass (All Defendants Except Milkowski) 7 8 9 10 11 36. King County re-alleges and incorporates by reference the allegations contained in the previous paragraphs. 37. King County has exclusive use, possession, and control of the Corridor in Lot 4, 12 and the owner of any underlying fee interest, if any, in the Corridor has no right to use, occupy, 13 or interfere with the same in any manner whatever. 14 38. Defendants’ entrance and use of King County’s property in the Corridor in Lot 4 15 by erecting, maintaining and using various unauthorized improvements and encroachments was 16 intentional and without authorization or invitation, express or implied. Defendants knew or had 17 reason to know that they did not have authorization continue with their encroachments. 18 39. Defendants interfered with King County’s property rights and possessory interest 19 in the Corridor in Lot 4 by impeding King County’s access to its property, interfering with the 20 construction the ELST and preventing the public enjoyment of the ELST and the Corridor as 21 public lands. 22 23 24 25 40. Defendants’ trespass was, and continues to be, the proximate cause of damage to King County’s property. 41. King County is entitled to recover damages including for restoration and remediation of the property and back rent for use of the public’s lands. COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 8 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819 Case 2:20-cv-00060 Document 1 Filed 01/14/20 Page 9 of 9 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff King County prays for the following relief: 3 A. For an order quieting title in King County to the Corridor in Lot 4; 4 B. Defendants should be required to vacate any use of the Corridor and to remove any 5 authorized improvements erected, maintained or used within the Corridor in Lot 4; 6 C. 7 pay for such restoration and remediation; 8 D. 9 uses of the Corridor in Lot 4 and all other damages, costs (including investigative costs) Defendants should be required to restore and remediate the Corridor in Lot 4 or Defendants should be required to pay current and back rent for all unauthorized 10 and attorneys’ fees available under RCW 4.24.630; and 11 F. 12 DATED this 14th day of January, 2020. 13 14 15 16 17 18 19 20 21 22 23 24 25 For such other relief as the Court deems just and equitable. DANIEL T. SATTERBERG King County Prosecuting Attorney By: s/ _David Hackett___ DAVID HACKETT, WSBA #21236 Senior Deputy Prosecuting Attorney King County Prosecuting Attorney’s Office 500 Fourth Ave., 9th Floor Seattle, WA 98104 Telephone: (206) 296-8820 / Fax: (206) 296-8819 Email: david.hackett@kingcounty.gov By: s/ Emily Harris__________ EMILY J. HARRIS, WSBA #35763 By: s/ Benjamin Byers BENJAMIN C. BYERS, WSBA #52299 Special Deputy Prosecuting Attorneys Corr Cronin LLP 1001 Fourth Avenue, Suite 3900 Seattle, WA 98154 Telephone: (206) 625-8600 / Fax: (206) 625-0900 Email: eharris@corrcronin.com bbyers@corrcronin.com Attorneys for Plaintiff King County COMPLAINT FOR QUIET TITLE, EJECTMENT, AND TRESPASS – 9 Daniel T. Satterberg, Prosecuting Attorney CIVIL DIVISION, Litigation Section 900 King County Administration Building 500 Fourth Avenue Seattle, Washington 98104 (206) (296-8820 Fax (206) 296-8819