It is hard to believe as you walk through the silent, snow-drifted path in the woods of northern Wisconsin which was once the Chicago-Northwestern Railroad right-of-way, that there is so much potential for conflict tied up in this strip of land stretching from the Sawyer County border to Bayfield.

Yet the potential for conflict is there. A conflict over who owns the former rail corridor, how it will be used, and in the end, what use is best for Bayfield County and the people who live in this part of Northwest Wisconsin.

Land grab charged

According to John Hawksford, who owns property north of Cable over which the right-of-way passes, his troubles over the corridor began last July when he heard of a meeting of the Bayfield County Tourism Committee scheduled to take place in Cable to discuss the future of the corridor.

"When they said well, we're here, now that the Mauler case has been tried, and found that we have the rights to the railroad grade, we've got to figure out how we are going to go about grabbing and using it," he said. "That got my attention right off the bat."

Hawksford bought his property in 1985, building his home in 1990. He now uses the old railroad grade as a driveway.

"Now for them to come along and say well gee, we're going to figure out a way how to run snowmobiles and ATVs down the old railroad grade; well, I don't think so!" Hawksford said.

Dr. Garfield Brown, a Minneapolis physician who also owns property along the CNW right-of-way says the county is engaged in a naked land grab.

"The issue is that the people in the county really don't know anything about this," he said in a recent telephone interview. "At this point it's being kept very quiet."

Brown said lawyers for several landowners approached County Administrator Mark Abeles-Allison in October to ask if the Bayfield County Board has a position or intention with regard to the CNW corridor.

"We did not receive an answer for a month, and when we did get it, we were told that the County Board didn't have a position and that by February of 2004 they might have one and be able to tell us what their position was."

Brown said by that time the county was likely to find itself in a lawsuit because attorneys for landowners along the corridor feel they have a strong claim to the property.

"This means that the county and we will be embroiled in a long litigation," Brown said.

Brown said actions by the county have slandered the title to property the landowners say is theirs. he said landowners may sue for damages because of the alleged slander and also to quiet the title in their favor.

"They have hurt the marketability of our property because the tourism committee members have been going around the area that the county is able to control the snowmobile grade and there will be snowmobiles and ATVs running on the grade by spring," Brown said.

Potential for trail

Tourism Committee chairman Kenneth "Bucky" Jardine admits that the potential for the corridor to be used as a recreational trail has been discussed by the tourism committee.

"That was talked about during a tourism meeting, because of the Mauler case. Now there is some doubt about the rest of it, so we are not doing anything about it," he said. The Mauler case, which was alowed to stand by the U.S. Supreme Court has changed the landscape with regards to lands granted to the railroad by the United States. In it, Federal Judge Barbara Crabb decided that rights-of-way given by the United States prior to 1871 reverted back to the United States and not to landowners whose property they cross when abandoned by the railroad.

Abeles-Allison and Jardine both say the county has not officially set forth a county policy on the corridor. Abeles-Allison says the county has been talking about the status of the right-of-way with attorneys.

He said at a November 12 County Board meeting, the board had on the agenda an executive session to meet with corporation council on trail issues.

"We had that executive session and no action was taken," he said.

Abeles Allison declined to reveal what the board was told by corporate council at that meeting.

"I really can't divulge what was discussed in the executive session," he said. "The county has not come out with a formal position yet. I anticipate that will come out relatively soon, at the beginning of the year or shortly thereafter. But we have not made a formal policy statement as of yet."

Jardine said study remained to be done on the corridor.

"Everybody has to find out for sure, if there is any doubt in anybody's mind, which there is, there has to be definite research so that everybody can be sure what's right out there," he said.

Abeles-Allison said in the past couple of months, the county has received inquiries from Dr. Brown as well as a local attorney representing some landowners along the corridor.

"Basically the way we responded was that we were currently researching where we are," he said. "Any ultimate action will be taken by the county board, because you are involving land, and there are legal issues, so it's not any one committee that will be making this decision."

That is a decision the county board would likely make in open session, Abeles-Allison said.

"There may be some deliberations that impact legal issues, and those legal issues will probably be discussed in closed session, but any final result has to be made public and I'm sure there will be an opportunity for the public to have input as well, prior to a policy being finalized."

That reply has done little to satisfy Brown and other landowners. He said owners had reason to believe it was a "stalling tactic."

"What is important is that the county board not be allowed to carry out these kinds of decisions behind closed doors because they are basically going to be involving significant amounts of county money if they get involved in a lawsuit," Brown said.

Landowners feel impact

Even without the county pronouncing a formal policy, the uncertainty over the corridor has begun to affect property owners, Brown said. He cited the case of Bob Rasmussen, who owns a Cable lumberyard. Rasmussen applied for a building permit in 2002 for a building expansion, part of which would be constructed on the former railroad right-of-way.

"He still, as of yet, does not have a building permit from Bayfield County. Bayfield County is telling him that they think they own the railroad grade, and they will not give him the building permit."

Hawksford says he is certain, that in his case, the Mauler decision does not hold, and that it doesn't hold for many landowners whose property is crossed by the right-of way.

"The conclusions that all the attorneys have come to is that every piece of property will have to be analyzed on its own merits on how it was obtained by the railroad to build the tracks initially," he said. "Our attorneys out of Milwaukee have done the research and assure me that is absolutely the case."

In his case, Hawksford said the railroad obtained the land which he now owns, and over which the right-of-way goes through, from private owners, not through federal land grant. Thus it is not under the province of the Mauler decision, he said.

"Every piece of property has to be looked at on its own merits, on its own deed. What's the background of every deed? Every piece of property stands to be litigated," he said.

Interest in the corridor

Despite the obstacles, a trail on the old CNW right-of-way has strong support from recreation interests. Earl Orner, President of the Bayfield County Snowmobile Alliance said the Alliance's goal was to open the trail as a recreation corridor. Orner said the Snowmobile Alliance has been blocked in efforts to find a route through the Cable area.

"So now what we are doing now is steering people across Lake Owen, and that's a hazardous crossing. We don't like having people cross the ice, but it's the only way to get between Cable and Drummond to go across Otter Bay. We are concerned about that," he said.

Orner said Alliance members believed the CNW right-of-way in question was federally granted.

"And as such it never really belonged to those people," he said.

He added if it could be used, the corridor could solve access issues for snowmobilers traveling north and south through Bayfield County. In addition, such a trail would mean a economic boost to the county as a whole, he said.

"There are a tremendous number of snowmobilers that come from Hayward and the Namakagon area. It's one of the main ways to travel from from Sawyer County up north," he said. "It's a big thing to be able to get there. Right now the trail stubs up into Cable, but to get to from Cable to Namakagon, they have to go down south and around. There is no trail through Cable any more."

Despite the benefit from increased tourism for the county, John Hawksford says this is outweighed by the potential for damage to property owners along the proposed trail. He said the relative value of residential development as opposed to trail development left little doubt which course would have more benefit for the county. He said residential development would increase the property tax value of the land significantly, while a trail would have the opposite effect.

"If they put this trail through, you can eliminate that kind of development, and it will probably just cut the value of the raw land by 50 percent," he said. "Property taxes wouldn't be paid, there would be no work for the local craftsmen. And this is because we want to support an industry called drinking alcohol and eating hamburgers a couple of months out of the year? People come up here because they love the north woods. They don't want to come up here to listen to a bunch of noise that you could stay in Chicago and listen to."

Both emotions and the stakes in this issue are high. The conflict hinges on complex and specialized legal issues that could take years to sort out in the courtroom. Just one example is the whole question of taxes landowners have paid on corridor land for decades when it was assumed they owned the property. If it turns out the federal government owns the land, will the county have to give refunds for those taxes? It's a prospect that county officials find disquieting. It is also clear that both sides would rather avoid the litigation course, but it isn't so certain that a mutually acceptable solution can be found.

"I think it's a lose-lose situation," Garfield Brown said. "I think the county is going to lose, I think that the owners are going to lose. I know the title insurance companies are going to lose; there is a lot of money in title insurance involved. The only ones that are going to win are the lawyers."