A group of 74 landowners living along the old Burlington Northern Santa Fe right-of-way are suing the Port of Seattle, King County and Puget Sound Energy in an attempt to stop the power purveyor from building new transmission lines along the route.

In the lawsuit, the property owners allege that the Port and King County illegally sold the subsurface and aerial rights above the former railroad easement to PSE.

The suit claims that the original 100-year-old easement was for the land only and gave BNSF the rights to the surface for their tracks. When the federal government enacted the Trails Act allowing for the creation of a pedestrian or biking trail along former railroad easements, only the surface rights transferred.

In 2010, the Port sold the aerial and subsurface easement rights to PSE, which the company has included as a possible route in its Energize Eastside project. Lawyers in the suit claim the sale was “wrongfully and illegally” done.

“Washington case law plainly establishes that an easement for a railroad use does not include subsurface or aerial rights, and would not include the right to put up high-tension power lines,” said Tom Stewart, lawyer of the plaintiffs, in a press release.

“We are simply protecting our ownership of aerial and subsurface interests in the right of way,” said Scott Kaseburg, one of the plaintiffs in the suit, adding that “protecting these rights has the added benefit of assuring that pedestrians and bicyclists eventually using the trail will not be exposed to an urban jungle of power equipment and clear-cut trees for the entire width and length of the corridor.”

According to the suit, the Trails Act states the right-of-ways should be preserved for “possible future railroad use rights-of-ways not currently in service and to allow interim use of the land as recreational trails.” In 2008, BNSF and the Port, along with King County, entered an agreement on the rights-of-ways in which Burlington Northern specifically stated that BNSF’s interest in the property “may only rise to the level of an easement for railroad purposes” and that the Port and County were “willing to accept the property on that basis.”

According to the original easements for the railroad, signed in the late 1800s, the underlying property owners kept fee title to the land, including aerial and subsurface rights.

The suit also claims that in the Federal Claims court 2012 opinion Haggart v. United States, a federal judge already analyzed the case and the easements and concluded they apply only for railroad purposes and the current easement is simply a surface easement for recreational trail use. The Haggarts are also a plaintiff in the current suit.

PSE spokesman Andy Wappler said the legal issues in the case are “complex” and until they are settled, all of the present route options will remain on the table. He also said it was still “very early” in the public outreach process and the company was still months away from a decision on routes and a year away from getting permits; however, the company’s position that the infrastructure upgrade is necessary has not changed.

“The legal issues are still to be decided, but the need is still clear,” he said.

Because King County is named in the suit, the case was filed in Snohomish County Superior Court. A trial date has not been set.