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Mount Washington Commission wants AG to determine who owns what atop summit

By JOHN KOZIOL
Union leader Correspondent

April 15. 2018 5:48AM
The Cog says the Auto Road and Mount Washington Observatory have violated an 1894 agreement, while the observatory claims the Cog broke a 2009 agreement. (SARA YOUNG-KNOX 2012 FILE PHOTO)



FRANCONIA — Citing the opposing legal opinions of the attorneys for the Cog Railway and the Mount Washington Auto Road, the Mount Washington Commission (MWC) on Friday voted unanimously to ask the state attorney general to render an opinion on who owns and controls what atop the tallest peak in the Northeast.

Separately, the Cog, which is contending that the Auto Road and the Mount Washington Observatory (MWOBS) have violated its rights under an 1894 agreement, was informed by the observatory that it may be on the hook for a significant amount of money for breaking a 2009 agreement with MWOBS and the Auto Road.

Under that agreement, both the Cog and Auto Road, in exchange for their customers being allowed free entry to the MWOBS museum in the Sherman Adams Building at the 60-acre Mount Washington State Park, pledged to annually give the observatory $1 for each customer who traveled to the summit.

The original term of the contract was for five years, but it was extended until April 30, 2019, and could be extended for two more five-year terms unless any of the parties were to give a 120 days’ notice of termination.

The Cog, said Sharon Schilling, president of the observatory, has never officially notified observatory officials that it was terminating the contract, and it has not made a payment since the summer of 2016.

On Thursday, attorney Jack Middleton, on behalf of the observatory, reminded the Cog’s lawyer of that fact in a letter he shared on Friday with reporters. The letter demanded that the Cog “immediately pay The Observatory all funds due and perform its contracted commitment in 2018 and 2019.”

Earlier in the commission meeting, Wayne Presby, the Cog’s owner and president, told the MWC that in 2017 the Cog had celebrated a seventh consecutive year of record ridership, adding that 119,000 people rode the train up and down the 6,288-foot-tall mountain.

The Cog has been at odds with officials from the Auto Road and the observatory for months.

Last October and again in March, the Cog alleged that the two entities were in violation of the 124-year-old agreement under which the Cog acquired certain rights to the summit, among them the exclusive right to feed and shelter visitors.

The Cog said that observatory officials had violated the agreement by bringing visitors to the observatory for overnight educational excursions, and that both the observatory and the Auto Road have trespassed onto the Cog’s rights-of-way, with Auto Road vans interfering with the safe loading and unloading of railway passengers.

Additionally, the Cog charges that the Auto Road has violated the diversion and depreciation clause of the agreement, which precludes either party from actions that damage the other’s income by entering into an extremely low-cost lease with the state for parking lots on the summit.

That cost, $1 per year for three years, lets the Auto Road charge a lower ticket price, the Cog said, and thus puts the Cog at a competitive disadvantage with respect to the Auto Road.

Through the law firm of Cooper Cargill Chant, the Auto Road on April 6 called the Cog’s allegations “wholly without merit,” noting that Cog officials failed to consider the many changes atop Mount Washington since the 1894 agreement that eliminated or altered some rights.

“Simply put, the Railway Company has no fee simple rights under the tracks within the Summit Circle, only easement rights, and has no property rights at all beyond the recent end of its tracks next to the Stage Office; and therefore cannot dictate what the Road Company, the State or the Observatory accomplish on state-owned land beyond the end of the tracks,” said attorneys for the Auto Road.

Presby disagrees and has said that not only is the 1894 agreement in effect, but that it’s enforceable, too.

During Friday’s commission meeting at the Franconia Notch State Park headquarters, tension between Cog and Auto Road officials was not far from the surface and was also among the first items of discussion.

Phil Bryce, director of the Division of Parks and Recreation, said the Attorney General’s office has been investigating “the respective rights” atop Mount Washington for a while now and that “most of the work has been done.”

Following further discussion, commission member Paul Fitzgerald made a motion seeking an opinion from the attorney general in time for the commission’s next meeting in July.

Presby told the commission that his concerns about trespassing are safety based. He said he has wanted to sit down with Auto Road and observatory officials to hash out their respective differences, “but nobody seemed to want to sit down with me.”

That failure, he conceded, led the Cog to send the letters to both, although he remains open to dialogue with them. On Saturday, Schilling said she was “unaware of any attempts” by the Cog to contact the observatory prior to it sending the letters.

Middleton observed that the Cog’s letter to the observatory was “a rather nasty” one and that it contained misinformation because it was based solely on the Cog’s interpretation of the 1894 agreement.

In his April 12 letter to the Cog, Middleton — who noted the observatory was also being represented by Westcott Law, of which Fitzgerald is a member, and by attorney James Kirsch of WilmerHale — wrote that “Moreover, the effort by the railway to distort the 1894 agreement as presented in your letter reflects a breach of the implied covenant of good faith and fair dealing implicit in that contract, and is now independently actionable.”


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