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Citizens show concern over railyard fence

After Union Pacific Railroad announced June 26 it would put up a fence around the Ashland Railyard, which has been a toxic cleanup area awaiting action since 1993, some community members are concerned the fence will block off a familiar area that use as open space.

The Ashland City Council will hold an executive session at 6:30 p.m. today to discuss prescriptive easements for the area. An easement could allow citizens to use the space, or at least cross it, even though it is Union Pacific property.

The Oregon Department of Environmental Quality rescinded its approval for a 2006 cleanup earlier this month. Union Pacific still needs to excavate about 58,000 tons of soil containing arsenic and other harmful metals. The railroad, DEQ and city government are all trying to find out what to do with the 20-acre parcel behind A Street. Because of concerns over higher levels of arsenic than previously thought, more contamination and worries over how to excavate the contaminated material safely, the DEQ is going to complete a new feasibility study area assessment.

Colin Swales, a former planning commissioner, said he thinks the community should be able to continue using the parcel through a prescriptive easement which would grant people the right to use the property because of city maintenance and public use for more than 10 years. The area, which served as a railcar maintenance facility between 1887 and 1986, has been an open space for locals for nearly two decades. Swales said that the city council and planning commission had yet to analyze the draft workplan presented by the railroad before Union Pacific was to start its cleanup process, and with another round of environmental assessment by the DEQ for the project, he hopes to see more local involvement.

"I'm hoping they'll give this one a little more scrutiny," Swales said.

Bill Danley, who lives on B Street, is another concerned dog walker. In a letter to City Attorney Mike Franell, Danley expressed his concerns why the railroad would decide to fence the area now and not years ago.

"I have seen the opportunities for walking in open space in Ashland steadily diminish, especially those walks that include my doggie companions," Danley wrote.

Because the DEQ did not require a fence to be put around the perimeter, he is concerned why the railroad suddenly decided it was a safety hazard.

"The railroad has shown little interest in 'protecting public safety' for dozens of years &

all this would do is punish Ashland citizens for having grown attached to their little open space over a quarter century or so of constant use (the well-worn trails through heavy brush, gravel, and debris are testimony to the frequent public use of this space)," Danley wrote.

Franell is looking into the legal aspects of a potential prescriptive easement, and he said he should have an answer by the end of this week. He will meet with council this evening. Because Ashland citizens have been using the land for more than 10 years, there is a potential for a right of way, but Franell said it is Union Pacific property, and they can do basically what they want with it.

"Because of Oregon case law, a municipality cannot give an easement because of the railroad's right of way," Franell said. The hope for citizens like Danley and Swales is that Union Pacific will accept some form of easement because people have been using the land as public space for so long.

Ashland Mayor John Morrison said if the legality comes up that the city does not have the right to an easement, the city may have little hope of stopping the fence.

"Obviously it's their property, and within the limits of city guidelines, etc., it's their privilege to put up a fence," Morrison said.

The mayor said the prescriptive easement could be the city's only chance to secure access.

"If that's not the case, there's probably little likelihood that we could stop them from fencing it," Morrison said.

Mark Ochsner, a representative for Kennedy Jenks Consultants (who is representing Union Pacific in the project), said it will probably be about a month before the fence is put up. He said the fence has nothing to do with the increased pollution that DEQ has discovered in the area, but it is a safety issue.

"It's got to be a risk factor," Ochsner said.

He added the railroad hopes to begin the contaminant removal next summer, which, DEQ Project Manager Greg Aitken said would potentially bring the department's feasibility study dates up to this fall.

For now, Aitken said, the DEQ has cancelled the railroad's storm water permit application &

a necessary measure in any surface disturbance project &

and he will meet with representatives from Union Pacific August 10. Aitken has been involved with the project on and off since 2001. He said he is unsure whether Union Pacific will decide to start the process. Aitken said he hopes the railroad, DEQ and Ashland government and citizens can all come to a consensus.

"There's some strong opinions in all of us," Aitken said. "Hopefully, we're all agreed that a cleanup is a good thing."

Staff writer can be reached at 482-3456 x 227 or .