Telecoms illegally lay cable on Albany ranch, lawsuit says

Written by jrood

Telecommunications companies need to bury thousands of miles of fiber optic cable to meet their customers' needs, the Casper, Wyo., Star-Tribune reports. They could approach tens of thousands of landowners and hundreds of local governments for contracts and permits, or even seek court-ordered condemnation of property, all of which would take years and money with no guarantee of success. Instead, they used a 150-year-old industry in Wyoming: the railroads.

The federal government in
the 1800s and early 1900s granted railroads limited rights-of-way on the
surface — and only the surface — of private property for their tracks and
support equipment. But nothing else, according to a class-action civil lawsuit
filed by Legacy Ranch LLP in U.S. District Court this week.

The ranch in Albany
County asserts Sprint Communications Co. of Overland Park, Kan., and Level 3
Communications LLC of Broomfield, Colo., entered agreements with railroads —
without asking landowners’ permission — to bury telecommunications cable along
the rights-of-way, according to the compliant filed by the ranch’s attorney,
Anthony Wendtland.

The railroads and telecom
companies got rich.

"Upon information
and belief, the Defendants have paid millions of dollars to the Railroads in
exchange for purported licenses or easement agreements allowing the Defendants
to use the railroad rights of way on or adjacent to property owned by the
Plaintiff and members of the Class," according to the complaint.

The Legacy Ranch and
possibly thousands of other landowners in Wyoming want their cuts, too.

"The Plaintiff and
Class members are entitled to a judgment requiring the Defendants to disgorge
and pay to them all sums they have received that are properly due and owing to
the Plaintiff and Class members as rents, profits, and other benefits
incidental to the ownership of their land, as restitution for the unjust
enrichment of the Defendants," according to the complaint. The lawsuit
does not seek a specific dollar amount.

In similar lawsuits,
telecommunications companies and railroads have defended their actions, saying
landowners do not absolutely own and possess the lands with the rights of way.

Representatives of Sprint
and Level 3 Communications did not respond to requests for comment on the
Legacy Ranch lawsuit.

The lawsuit does not name
as defendants the five railroads — Union Pacific, BNSF, Consolidated Rail
Corp., CSX Transportation and Norfolk Southern — that allegedly granted the
telecom companies the ability to bury cable.

The Legacy Ranch lawsuit
joins a legacy of litigation going back to the mid-1800s, said attorney Nels
Ackerson of the Washington, D.C., firm of Ackerson Kauffman Fex P.C., who is
working with Wendtland in Wyoming.

The railroads acquired
the rights-of-way to run a railroad on the surface of ranchers’ properties and
that included the right to set up telegraph poles and lines between stations,
Ackerson said. But even then, the railroads claimed the rights-of-way allowed
them to grant telegraph companies the ability to operate commercially, he said.

That claim didn’t go over
well in the 19th century, Ackerson said. "In the 1800s, [it was] the most
frequent litigation before the United States Supreme Court."

The courts consistently
ruled in favor of the landowners and against the railroads and the telegraph
companies then, he said. And they do now, he added.

As the telecommunications
industry flourished in the early 1990s, coupled with the advent of the
Internet, those companies with the largest networks of fiber optic technology
would gain a substantial edge over their competitors, Ackerson said. So they
worked with railroads to bury cable on abandoned railbeds in the Midwest, he
said. That was ruled illegal, as was telecommunications infrastructure buried
on ranches in the West, Ackerson said.

While the courts have
agreed on the private property issues, they’ve not always agreed that
class-action lawsuits in multiple federal jurisdictions are appropriate, he
said. So the Legacy Ranch lawsuit will involve only landowners in Wyoming to
avoid unnecessary procedural roadblocks, Ackerson said.

Despite the legal
precedents, the practice continues, with the telecom companies and railroads
taking the approach that it’s easier to ask for forgiveness than it is to ask
for permission, he said.

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