Rails to Trails - Past, Present, and Future

Rails to Trails

Past, Present, and Future

Bryan E TownleyUST 609 Land Use Control/Planning Law

5/7/15

Rails to Trails: Past, Present, and Future

ContentsA. Introduction and Background…………………………………………………………………………..2

B. Rails to Trails Legislature………………………………………………………………………………….4

1. National Trails System Act, 1968…………………………………………………………….4

2. Railroad Revitalization and Regulatory Reform Act, 1976…………………….…4

3. Section 8(d) of the National Trails System Act, 1983……………………….………5

4. Establishment of the Rails to Trails Conservancy, 1986……………….………….6

5. National Trails System Improvements Act, 1988…………………………………….6

6. Intermodal Surface Transportation Act, 1991………………………………….……..7

7. Transportation Equity Act for the 21st Century, 1998, and Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users, 2005…………………………………………………………………………………………………7

8. Moving Ahead for Progress in the 21st Century Act, 2012……………….……..8

C. Railbanking and railroad abandonment process……………………………………………….8

1. 43 U.S.C. § 912……………………………………………………………………………………….8

2. Procedures and administration……………………….……………………………………..9

i. Authority…………………………………………….……………………………………….10

ii. Notice of Interim Trail Use………………………………………………………….11

3. Reinstatement………………………………………………………………………………………12

D. Legal Challenges…………………………………………………………………………………………….13

1. Deeds, Easements, and Abandonment………………………………………………….13

i. Preseault v. United States, 1996………………………………………………….14

ii. Lawson v. Washington, 1986……………………....................................16

iii. Shifting Public Use Policy………………………………………………..………….18

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iv. Challenges to Shifting Public Use Policy………………………….………….20

v. Statute of Limitations for Takings Claims..................................…...22

2. Federally Granted Rights of Way……………………………………….………………...24

i. Rights of Way Granted Under Civil War-Era Acts………………………….25

ii. Rights of Way Granted Under the 1875 General Railway Right of Way Act………………………………………………………………………………………….26

iii. Pre-Civil War Grants…………………………………………………………………..27

iv. Conflict between Courts…………………………………………………………….29

v. Marvin M. Brandt Revocable Trust v. United States, 2014…………..30

E. Conclusion and Future of Rails to Trails…………………………………………………………..32

Sources………………………………………………………………………………………………………………34

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A. Introduction and Background

At the turn of the 20th century railroads were the most dominant form of transportation in the

United States, linking the entire country with a vast network. Railroads were responsible for the

movement of passengers and freight across the country, in addition to augmenting national

defense as the Interstate Highway System would in the coming years. At their peak in 1916,

American railroads operated over 275,000 miles of track. Many of these lines helped expand

the country westward in the prior years, opening up new territory to European-descended

settlers from the eastern half of the country.

However, two new 20th century inventions spurred a shift in the way people got around. The

automobile and the airplane, and each’s subsequent technological improvements, became the

preferred modes of passenger transportation. A spin-off of the automobile, the truck, quickly

began cutting away from freight railroads’ business. The 1950s and 1960s saw railroads start to

falter financially, and by the 1970s the decline became precipitous. Companies plagued with

fiscal instability resorted to mass abandonment of their rail lines.1 Penn Central, one of the

nation’s largest railroads at the time, filed for bankruptcy in 1970 and was dissolved by 1976.2

In 1980 the federal government stepped in with the Staggers Rail Act, which had the overall

purpose of deregulating the railroads so as to remove burdens that were unnecessary.

Provisions, such as railroads having the ability to price their service without needing ICC

approval, allowed operators to push back into the black.3 The Act also triggered an even greater

1 “Railbanking” Rails-to-Trails Conservancy. http://www.railstotrails.org/build-trails/trail-building-toolbox/railbanking/2 “The Penn Central Railroad” American-Rails.com. http://www.american-rails.com/penn-central.html3 “The Impact of the Staggers Rail Act of 1980” Association of American Railroads 5/14. https://www.aar.org/BackgroundPapers/Impact%20of%20the%20Staggers%20Act.pdf

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abandonment of rail lines, through streamlining the process of shedding underutilized

infrastructure. Between 1975 and 1990, 65,000 miles of railroads were abandoned, almost

double the figure of the previous 45 years.4 America’s extensive network of railroads that had

been pieced together in a Frankenstein fashion was in jeopardy of being torn apart.

Meanwhile, substantial abandonment meant that long, linear tracts of land had become vacant.

During the 1970s- early 1990s, residents across the country began to use these abandoned rail

corridors as unofficial “trails.” These corridors, being inherently flat out of necessity, made for

great spaces for recreation, and their connections between major population centers ensured a

ready and waiting market. Parallel environmental movements and an expanding national trail

network, coupled with concerns about national security in the wake of mass railroad

abandonment, forced the federal government to intervene and take advantage of this unique

opportunity.5 If acted upon, these “Rail-Trails,” as they came to be called, could satisfy not only

security interests through preserving much of the former rail network, but also environmental

advocates (reducing greenhouse gas emissions and roadway congestion), public health

practitioners (active transportation and recreation), and conservation and preservation

interests (by connecting with the growing National Trail network).

B. Rails to Trails Legislature

1. National Trails System Act, 1968

4 “Railbanking” Rails-to-Trails Conservancy. 5 “History of RTC and the Rail-Trail Movement” Rails-to-Trails Conservancy. http://www.railstotrails.org/about/history/

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Spurred by the Appalachian Trail’s success and a growing population’s desire for recreational

space, the federal government began toying with the idea of creating a system of national trails

beginning in the 1950s. In 1968, Congress enacted the National Trails System Act, laying the

foundation for a national network of trails. In addition to the goal of enhancing recreational

space, the trails were also to connect historic and/or scenic sites of national importance.

Managed by the National Park Service, the Forest Service, and the Bureau of Land

Management, the trails were placed into four categories: National Scenic Trails, National

Historic Trails, National Recreation Trails, and trails that simply provide connection to or

between those in the larger network. Since the Act was established, it has allowed for at least

1,000 conversions of rail corridors for trail use.6

2. Railroad Revitalization and Regulatory Reform Act, 1976

In a prelude to the Staggers Rail Act in 1980, the Railroad Revitalization and Regulatory Reform,

or “4R” Act, was established in 1976. The 4R Act was charged with helping struggling railroads

achieve financial stability, through a streamlined federal regulatory process.7 The Act also

contained overlooked sections pertaining to trail establishment, including a Public Use

Condition which allows for the potential transfer of railroad rights of way. Upon a decision of

abandonment, the railroad must propose to transfer its right of way for public use before

making an exchange with another entity. An additional portion of the 4R Act would lead to the

creation of the Rails to Trails Grant Program, generating funding for some of the first rail-trails.8

6 Johnson, Sandra L. “Federal programs and Legislation: An overview of the NATIONAL TRAILS SYSTEM ACT” National Trails Training Partnership 3/9/15. http://www.americantrails.org/resources/feds/NatTrSysOverview.html7 “Railroad Revitalization and Regulatory Reform Act” 45 U.S.C. § 801-856. https://www.law.cornell.edu/uscode/text/45/chapter-178 “History of RTC and the Rail-Trail Movement” Rails-to-Trails Conservancy.

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3. Section 8(d) of the National Trails System Act, 1983

After 1980’s Stagger Rail Act, the federal government took an important step forward in Rails to

Trails legislation with the enactment of Section 8(d) of the National Trails System Act, in 1983.

Section 8(d) allows for an arrangement between a railroad company and a trail organization

(“any person, public or private”) in which an abandoned rail corridor is allowed to be used as a

trail, with the provision that the corridor can be given back to the railroad if dictated by future

need.9 Called railbanking, this transfer process begins with a railroad’s submission of an

abandonment notice to the Surface Transportation Board. After this point, trail organizations

can reach out to the railroad to establish a railbanking agreement. If one is reached, the line is

not formally abandoned and a Notice of Interim Trail Use is established. The railroad must give

its consent in the interim use of the corridor, and the entire agreement process is given an

initial, and extendable, 180 day timeline.10

Railbanking helps guard transportation corridors against their partitioning to adjacent

landowners, and directly fights such “reverter clauses.”11 Partitioning a railroad’s former right of

way to individual landowners creates a nearly insurmountable hurdle in trail creation and its

required assembly of a long, narrow corridor of land. (Go to Section C for a continued

discussion of railbanking.)

4. Establishment of the Rails to Trails Conservancy, 1986

9 “Rails to Trails” Surface Transportation Board. http://www.stb.dot.gov/stb/public/resources_railstrails.html10 Ferster, Andrea C. “Rails-to-Trails Conversions: A Review of Legal Issues” American Planning Association, Planning & Environmental Law 9/06.11 “A Network of Discovery” Nebraska Game and Parks Commission 5/05. https://outdoornebraska.ne.gov/trails/programs/trailplan/pdf/03bCHAPTER.pdf

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With the rising popularity of recreational trails and the newfound ease of transferring rail rights

of way to trail use, people from varied backgrounds, including those involved in walking and

biking, historians, conservation organizations, and active transportation activists, began

meeting monthly. Born from these meet-ups was the nonprofit Rails to Trails Conservancy in

1986. While acting as a planning and support agency for regional or localized trail organization,

the Rails to Trails Conservancy also advocates for trail support in political arenas and fights

statutes that would potentially undermine the nation’s current and future trail network.12

5. National Trails System Improvements Act, 1988

1988 saw additions to the National Trail Systems Act, with the new National Trails System

Improvements Act. The Act saw the bolstering of federal support in the granting of rights of

way to “State and local governments or other nonprofit entities for trail purposes.” “Any and all

right, title, interest, and estate” of rail corridors granted by the federal government, as

established in Title 43 of the United States Code,13 would then revert back to the federal

government, under supervision of the Secretary of the Interior, upon abandonment. State and

local governments or other trail organizations could then be authorized to take over

management of a corridor’s right of way so long as its use would be for public recreation

purposes.14

6. Intermodal Surface Transportation Act, 1991

12 “History of RTC and the Rail-Trail Movement” Rails-to-Trails Conservancy. http://www.railstotrails.org/about/history/13 A more detailed discussion of 43 U.S.C. § 912 is available in Section C below.14 “National Trails System Improvements Act” 16 U.S.C. §1248. https://www.law.cornell.edu/uscode/text/16/1248

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Trail activities became further backed by federal funding in 1991 when the Intermodal Surface

Transportation Act (ISTEA) of 1991 was established. Rail-trails, among other items, were part of

the new “Transportation Enhancement Activities” provision, requiring states to set aside 10% of

their distributed federal funds for such projects. Trail organizations or local governments could

then submit project proposals to state governments (through advisory committees), who

selected the recipients of the federally-designated funds. Whichever entity submitted the

proposal was usually responsible for a portion of the entire project’s cost.15 16

7. Transportation Equity Act for the 21st Century, 1998, and Safe, Accountable,

Flexible, and Efficient Transportation Equity Act: A Legacy for Users, 2005

Support for rail-trails continued under the Clinton administration with the passage of the

Transportation Equity Act for the 21st Century (TEA-21). This Act established new funding for

“Transportation Enhancement Activities,” and sets forth a wider array of funding strategies for

local governments and/or trail agencies.17 Enacted in 2005, the Safe, Accountable, Flexible, and

Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), largely was a four-year

continuation of the provisions set forth in ISTEA and TEA-21.18

8. Moving Ahead for Progress in the 21st Century Act, 2012

15 “Intermodal Surface Transportation Efficiency Act of 1991” U.S. Department of Transportation National Transportation Library. http://ntl.bts.gov/DOCS/istea.html16 Howser, Beth Miller. “Putting Value on Rail-Trails” Public Management Magazine 4/97. http://sks.sirs.bdt.orc.scoolaid.net/cgi-bin/hst-article-display?id=SNY5703-0-586&artno=0000019018&type=ART&shfilter=U&key=Intermodal%20Surface%20Transportation%20Efficiency%20Act%20%281991%29&title=Putting%20Value%20on%20Rail-Trails&res=Y&ren=N&gov=N&lnk=Y&ic=N17 “TEA-21- Transportation Equity Act for the 21st Century: A Summary” Federal Highway Administration 4/5/11. http://www.fhwa.dot.gov/tea21/sumtoc.htm18 “A Summary of Highway Provisions in SAFETEA-LU” Federal Highway Administration, Office of Legislation and Intergovernmental Affairs 8/25/05. http://www.fhwa.dot.gov/safetealu/summary.htm

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The foundation for trail funding laid in the prior three acts was altered somewhat with the

passage of the Moving Ahead for Progress in the 21st Century Act in 2012. A new

“Transportation Alternatives Program (TAP)” took over the former “Transportation

Enhancement Activities,” by reducing its scope and merging several of its programs.19 In

addition, between 2012 and 2014 federal funding for TAP initiatives dropped from $1.2 billion

under the Transportation Enhancements name, to between $780 and $819 million. This

consolidation of programs and reduction in funding was seen as a step backwards in federal

legislation by the Rails to Trails Conservancy and other trail groups. However, of possibly

greater impact, MAP-21 maintained the previous three acts’ stance on the public trail

conversion of former railroad rights of way.20

C. Railbanking and railroad abandonment process

1. 43 U.S.C. § 912

Beginning in the 1850s, the United States Congress began to recognize the importance of

railroad expansion in the western half of the country. Subsequently, legislation was passed that

allowed public land to be granted by the federal government to railroads who wished to expand

(these grants will be discussed as the Civil War-era grants, the 1875 grants, and the pre-Civil

War grant agreements in Section D below). As railroads began to be consolidated and/or

abandoned in the early 1900s, much speculation arose as to whom the now abandoned land

belonged to. Two court cases, Northern Pacific Railway Co. v. Townsend (1903) and H.A. & L.D.

Holland Co. v. Northern Pacific Railway Co. (1914), inferred that Congress’ intent was to have

19 “History of RTC and the Rail-Trail Movement” Rails-to-Trails Conservancy. 20 “Issue Brief: MAP-21 and the Transportation Alternatives Program” American Society of Landscape Architects. http://www.asla.org/FederalGovernmentAffairs.aspx?id=34517

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abandoned federally granted rights of way revert to the federal government. Congress

recognized that this reversion would cause problems due to an overabundance of small,

potentially unusable parcels. Thus in 1922, 43 U.S.C. § 912 was enacted to instead deflect the

reversion to landowners that held title to the land that was federally granted to the railroads.21

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2. Procedures and administration

As discussed in Section B above, Railbanking was largely born out of the federal government’s

interest in preserving a vast network of transportation corridors in the face of mass railroad

abandonment. Through additions to the National Trails System Act in 1983 (Section 8(d)), rail

corridors that were to be abandoned could be “banked” as rail-trails, preserving rights of way

for potential future rail use and dodging potential reversions to adjacent property owners.

i. Authority

The Surface Transportation board has regulatory authority over all aspects of railroads in the

United States. Through the STB, a railroad that wishes to abandon a corridor or a portion of a

corridor must do one of two things: 1) file a standard abandonment, or 2) seek an exemption.23 21 “Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall…be transferred to and vested in any person, firm, or corporation.”22 Marlow v. Malone, 315 Ill. App.3d 897, 734 N.E.2d 195 (App. Fourth Dist. 2000). http://caselaw.findlaw.com/il-court-of-appeals/1417906.html23 49 U.S.C.A. § 10502, Authority to exempt rail carrier transportation: “(a) In a matter related to a rail carrier providing transportation subject to the jurisdiction of the Board under this part, the Board, to the maximum extent consistent with this part, shall exempt a person, class of persons, or a transaction or service whenever the Board finds that the application in whole or in part of a provision of this part--

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If either are approved by the STB, the STB loses authority over the corridor and the property is

disposed of in accordance with reversionary state law. The railbanking procedure side-steps

corridor abandonment, and instead transfers the railroad’s right of way and all responsibility to

a trail operator (or “interim trail manager”). The right of way is therefore not abandoned and

the STB keeps its authority over the corridor. The National Trails System Act specifically blocks

state reversionary law from coming into effect,24 however takings claims cannot be dodged

unless a corridor’s easement’s scope is wide enough to include use as a trail (see Section D

below).

ii. Notice of Interim Trail Use

After a railroad files either a standard abandonment or an exemption, and one of the two is

approved by the STB, a railbanking petition can then be filed by the trail operator. According to

49 C.F.R. 1152.29, the railbanking petition must include:

“(1) A map depicting, and an accurate description of, the right-of-way, or portion thereof

(including mileposts), proposed to be acquired or used;

(1) is not necessary to carry out the transportation policy of section 10101 of this title; and(2) either--

(A) the transaction or service is of limited scope; or(B) the application in whole or in part of the provision is not needed to protect shippers from the

abuse of market power.”24 16 U.S.C. § 1247(d): Railbanked corridors “shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.”

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(2) A statement indicating the trail sponsor's willingness to assume full responsibility for:

(i) Managing the right-of-way;

(ii) Any legal liability arising out of the transfer or use of the right-of-way (unless the

user is immune from liability, in which case it need only indemnify the railroad against

any potential liability); and

(iii) The payment of any and all taxes that may be levied or assessed against the right-of-

way; and

(3) An acknowledgment that interim trail use is subject to the sponsor's continuing to meet its

responsibilities described in paragraph (a)(2) of this section, and subject to possible future

reconstruction and reactivation of the right-of-way for rail service.”

After the trail operator files the petition the ball is in the railroad’s court in confirming with the

STB (within ten days) that the two parties have come to an agreement in the establishment of a

trail. The STB can then finally issue a Notice of Interim Trail Use which allows the railroad to

remove its service from the corridor (essentially abandon the corridor, but not formally).

Initially the Notice of Interim Trail Use lasts an extendable 180 days for the railroad and trail

operator to hammer out the final details of their agreement. Once the final details are

established, the Notice of Interim Trail Use can be extended indefinitely so as to allow for the

potential return to rail use at a future time. If either party backs out of the agreement or the

180 day period has passed, the corridor automatically becomes abandoned.25

25 Caldwell v. U.S.A., 391 F.3d 1226 (Fed. Cir. 2004). https://a.next.westlaw.com/Document/I9efe7f338bc411d99a6fdc806bf1638e/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604060000014d2ae0f847e74262d9%3FNav%3DCASE%26fragmentIdentifier

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3. Reinstatement

Major rail carriers in the United States, including Union Pacific, CSX, and Norfolk Southern have

indicated that it is highly unlikely that their corridors that have been railbanked will return to

rail service in the near future. Some railroad officials operate under the assumption that the

trail is permanent, and may not even keep formal records of their banked corridors. However,

in the rare event that rail service is reinstated, railbanking represents a more cost-effective

measure than simply abandoning a corridor and having to reassemble all of the necessary

parcels of land. Reinstatement of rail service along a corridor involves the railroad contacting

the Surface Transportation Board, which then revives the original abandonment proceedings,

and invalidates the interim trail use.26 Some railbanked corridors that have been returned to rail

service became “rails-with-trails” where the trail runs alongside the railroad track. Rails-with-

trails have also become more common as the rate of railroad abandonment in the United

States has leveled off and trails are simply constructed adjacent to rail lines from the onset.27

D. Legal Challenges

Rail corridors are often pieced together using many different methods of acquisition, such as “in

fee” purchases, easement purchases, or federal grantings.28 Compounding this, information

%3DI9efe7f338bc411d99a6fdc806bf1638e%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=203b2a7c5da0279ef20c1557a47ce14a&list=CASE&rank=1&grading=na&sessionScopeId=5c213abbc711b582c6472cdfe3bfdc77&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%2926 “Issues Related to Preserving Inactive Rail Lines as Trails” United States General Accounting Office 10/99. http://atfiles.org/files/pdf/GAO-Preserving-Inactive-Rail-Lines-Trails.pdf27 “Railbanking and Rail-Trails: A Legacy for the Future” Rails to Trails Conservancy 3/05. http://atfiles.org/files/pdf/legacyrailbank.pdf28 Ferster, Andrea C. “Rails-to-Trails Conversions: A Review of Legal Issues” American Planning Association, Planning & Environmental Law 9/06.

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about property acquisition is sometimes ambiguous or nonexistent.29 Therefore when a railroad

becomes abandoned, many stakeholders may claim ownership of the corridor.

1. Deeds, Easements, and Abandonment

A common place of conflict in trail ownership litigation arises from disputes over the nature of

railroad deeds. These deeds often do not spell out whether the “granted land” or “right of way”

is a fee or an easement. This becomes of great importance in court where a determination of

one or the other could create entirely different outcomes in terms of the corridor’s future use.

A finding that the land is an easement could make the corridor more vulnerable to reversion to

adjacent property owners. Situations involving easements are also further examined to discern

whether the easement has been abandoned or not. The abandonment designation requires

that the railroad took some action or went through some process that demonstrated that the

easement would no longer be used for rail purposes.

Much like the nature of deeds and easements, there are differences in the meaning of what

“abandonment” of a railroad corridor is when looking through the lens of either the federal or

state government. As mentioned in Section C above, the Surface Transportation Board has

authority over a railroad’s abandonment proceedings. Under federal law, a railroad has become

abandoned when it has received permission to do so from the STB. Because of Section 8(d) of

the National Trails System Act, the STB can sidestep abandonment altogether by administering

an interim trail use agreement between the railroad and a trail organization. However, under

state law, abandonment is considered to be more of an active process; one that requires steps

29 Frank, Richard M., Meltz, Robert, and Merriam, Dwight H. “The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation” 1999.

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that physically alter the corridor, such as removal of railroad track. It becomes entirely possible,

therefore, that a rail corridor could be designated as abandoned by the state government, even

when the STB says it is not. When this has occurred, courts have generally ruled in favor of

states’ definitions of abandonment and property owners’ interests.30

i. Preseault v. United States, 1996

Possibly the most significant conflict between trail organizers and landowners adjacent to a rail

corridor occurred in Vermont between 1975 and 1996. In 1975, the Vermont Railway removed

tracks, signals, and other railway infrastructure along a rail corridor it leased from the State of

Vermont. The Preseaults, landowners adjacent to the corridor, believed that the actions by the

railroad amounted to a discontinuance of their service over the line, and thus was an

abandonment. The Supreme Court of Vermont, however, asserted that the railway had not

formally abandoned the line, and because of this was still under the jurisdiction of the

Interstate Commerce Commission. The Preseaults then asked the ICC to formally pronounce the

railway as abandoned through a petitioning process. Vermont stated that it held title to the

railway in fee simple, that it wanted to formally discontinue service on the rail line, and that it

intended to sign an agreement with the City of Burlington for the establishment of a trail as

interim use. The ICC granted these three provisions to the State of Vermont in 1986 and

dismissed the Preseaults’ petition.

In 1988, the Preseaults argued in the United States Court of Appeals for the Second Circuit that

Section 8(d) of the National Trails System Act was unconstitutional. The court held that the Act

30 Ferster, Andrea C. “Rails-to-Trails Conversions: A Review of Legal Issues” American Planning Association, Planning & Environmental Law 9/06.

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was in fact constitutional, and the Preseaults were to receive no remedy.31 The case was then

taken to the United States Supreme Court in 1990, where it was decided once again that

Section 8(d) of the Act was constitutional. However, the court stated that the Preseaults could

file a takings claim under the Fifth Amendment in the Court of Federal Claims.32 That court once

again ruled against the Preseaults, and their complaint was dismissed in 1992.

The Preseaults then filed a takings claim in the US Supreme Court, stating that the corridor’s

interim use as a rail-trail was a taking of their property. The manner of the railroad’s acquisition

and the scope of its control over the corridor became the focal point of the case. First, the court

had to decide whether the railroad’s ownership of the corridor was in a fee simple estate or an

easement. Another level of analysis was required if the corridor was an easement, as its scope

in allowing public recreation trails as a continuance of a “public transportation use” must be

examined. The court looked to Vermont property law to formulate its decision in the case. In

Vermont, estates acquired by railroads are of very limited scope- not enough to be considered

fee simple (the title to the property in question was actually incorrectly filed as fee simple).

After establishing that the corridor was really an easement, the court proclaimed that because

the scope of the estate was narrow, even for easement standards, a trail was not a continuance

of a transportation corridor in line with its original purpose for rail. The court also clarified that

under Vermont property law, a railroad’s physical removal of its infrastructure hindered its

“future existence” and was therefore abandoned. Because of this, the court ruled that the

31 Preseault v. Interstate Commerce Commission, 853 F.2d 145 (1988). https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1988102673&pubNum=350&originatingDoc=Iba1b3f15940711d993e6d35cc61aab4a&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)32 In the 1990 Preseault case, the court found that creating a trail from an abandoned railroad right of way under the National Trails System Act Section 8(d) would effect a taking if the easement would have instead reverted back to the adjacent landowner, and said landowner could argue for just compensation.

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corridor’s conversion as a public recreation trail was a taking, and just compensation was to be

paid by the federal government.33 34

ii. Lawson v. Washington, 1986

Another case similar to Preseault v. United States was Lawson v. Washington in 1986, where

the Washington State Supreme Court found that privately-created easements are not meant for

continued public use. The plaintiffs owned property directly adjacent to a Burlington Northern

Railroad corridor in the process of abandonment, and believed that the land should revert to

them upon abandonment, stating that RCW 64.04.18035 and 64.04.19036 are unconstitutional

and constitute takings without just compensation (two statutes that allow the continuation of a

railroad right of way for public use). On the other hand, King County, Washington asked the ICC

to put in place a 120 day public use condition, which would not allow disposal of the corridor,

33 Preseault v. United States, 100 F.3d 1525 (1996). https://a.next.westlaw.com/Document/Iba1b3f15940711d993e6d35cc61aab4a/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604020000014cb97cb8a63e217e4c%3FNav%3DCASE%26fragmentIdentifier%3DIba1b3f15940711d993e6d35cc61aab4a%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=8cce617c37d1f295f45239917cafaa67&list=CASE&rank=1&grading=na&sessionScopeId=1c4a5557227c0f5072ad1aac46cec1df&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%2934 Preseault v. United States, 100 F.3d 1525 (U.S. App. 1996). http://www.casebriefs.com/blog/law/property/property-law-keyed-to-dukeminier/private-land-use-controls-the-law-of-servitudes/presault-v-united-states/35 “Railroad properties, including but not limited to rights-of way, land held in fee and used for railroad operations, bridges, tunnels, and other facilities, are declared to be suitable for public use upon cessation of railroad operations on the properties. It is in the public interest of the state of Washington that such properties retain their character as public utility and transportation corridors, and that they may be made available for public uses including highways, other forms of mass transportation, conservation, energy production or transmission, or recreation.”36 “(1) Public utility and transportation corridors are railroad properties (a) on which railroad operations have ceased; (b) that have been found suitable for public use by an order of the Interstate Commerce Commission; and (c) that have been acquired by purchase, lease, donation, exchange, or other agreement by the state, one of its political subdivisions, or a public utility.(2) A public utility and transportation corridor retains its public use character as long as it is owned by a public agency or utility. A public utility and transportation corridor is not subject to reversion, taking by adverse possession, or any similar property interests ripening on the cessation of railroad operations.”

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unless for public use. Instead of the right of way being a continual public easement as the trial

court stated, the Washington Supreme Court said that a change in transportation mode of the

corridor from a railroad to anything else constituted an abandonment and was outside the

scope of the deed (“future interests are so remote and speculative that they are not entitled to

constitutional protection under takings and due process provisions”). The state’s argument,

that the railroad corridor was part of a continuous transition from one form of transportation

to another over time, fell flat when the court cited Washington State case law. The Court

further stated that the transference of the corridor from railroad to trail use would require just

compensation and that RCW 64.04.180 was constitutional. However, RCW 64.04.190 was found

unconstitutional in regards to King County’s acquisition of the corridor’s right of way without

just compensation.

One case cited in Lawson v. Washington was Schnabel v. County of DuPage (Illinois), where the

court found that one indicator of corridor abandonment was its transition to trail use. Another

important outcome of the decision in Schnabel was that explicit reversionary language was not

required in a right of way grant for a corridor’s land to return to ownership of adjacent

landowners upon abandonment.37 A case with a similar outcome, McKinley v. Waterloo

Railroad Company, occurred in Iowa in 1985.38

iii. Shifting Public Use Policy

37 Lawson v. State of Washington, 107 Wn.2d 444 (1986). http://courts.mrsc.org/mc/courts/zsupreme/107wn2d/107wn2d0444.htm38 Frank, Richard M., Meltz, Robert, and Merriam, Dwight H. “The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation” 1999.

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Some states have made clear distinctions in the rail corridor abandonment process, asserting

differences between the abandonment of railroad purposes along the right of way versus the

abandonment of the right of way in and of itself. Known as “Shifting Public Use Policy,”

transportation easements can be construed to encompass other modes of transportation than

what was their originally intended mode (what was “in vogue” at the time).39 The groundwork

for this policy was laid in 1868 with the Supreme Court of Ohio’s decision in William S. Hatch v.

The Cincinnati and Indiana Railroad Company, where a former canal right of way could be

converted for use as a railroad corridor.40 More recently, in Washington Wildlife Preservation v.

State (1983), the Supreme Court of Minnesota decided that a former rail right of way’s use as a

trail was within the scope the railroad’s original easement and would not revert to neighboring

landowners: “Recreational trail use of the land is compatible and consistent with its prior use as

a rail line, and imposes no greater burden on the servient estates. The use is a public use, which

is consistent with the purpose for which the easement was originally acquired.”41 Other cases

that affirm Shifting Public Use Policy include Minnesota v. DNR (1983) and Rieger v. Penn

Central Corp. (1985).42

In 1999, the Maryland Court of Appeals boosted shifting public use in its decision in Chevy

Chase Land Co. v. United States, where landowners claimed the establishment of a railbanked

39 Frank, Richard M., Meltz, Robert, and Merriam, Dwight H. “The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation” 1999.40 William S. Hatch v. The Cincinnati and Indiana Railroad Company, 18 Ohio St. 92 (1868). https://books.google.com/books?id=-PdGAQAAMAAJ&pg=RA1-PA107&lpg=RA1-PA107&dq=hatch+v+cincinnati+%26+irr+1868&source=bl&ots=xGptLFL0IE&sig=wlXBwhFyg39-6HEOqCKqhmrx10o&hl=en&sa=X&ei=oB8rVdjTMMivggTYpYDoCA&ved=0CB4Q6AEwAA#v=onepage&q=hatch%20v%20cincinnati%20%26%20irr%201868&f=false41 Washington Wildlife Preservation v. State, 329 N.W.2d 543, 545, 547. http://law.justia.com/cases/minnesota/supreme-court/1983/82-150-1.html42 Frank, Richard M., Meltz, Robert, and Merriam, Dwight H. “The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation” 1999.

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trail was a taking of their property. This corridor in Montgomery County, Maryland was

originally established through a 1911 deed given by a land company, and was found by the

court to be an easement. However, it was decided that because the deed did not expressly

state that the corridor was for rail use only, its continuation as a railbanked trail was legal,43 and

because it was continued for public use, the corridor was not formally abandoned.44 One year

later, the Federal Circuit trusted the arguments put forth by the Maryland Court of Appeals in

their decision that the railbanking was not a taking.45

iv. Challenges to Shifting Public Use Policy

Shifting public use has not been able to gain a foothold everywhere, however. In the Wisconsin

Supreme Court, Pollnow v. State Department of Natural Resources involved provisions of the

General Railroad Right of Way Act of 1875 (43 U.S.C. § 934) which states, “The right of way

through public lands of the United States is granted to any railroad company duly organized

under the laws of any State or Territory, except the District of Columbia, or by the Congress of

the United States, which shall have filed with the Secretary of the Interior a copy of its articles

of incorporation, and due proofs of its organization under the same…” This statute sets forth

that railroad rights of way created under this Act are easements, and not fees.

43 “Based on the absence of limitations on use of the right-of-way in the language of the deed, we concluded that the use is within the legally anticipated scope of the 1911 deed, in light of the railroad's status as a highly regulated public service corporation. The deed anticipated a means of transit over the right-of-way, and the trail use is consistent with what was anticipated. Moreover, the use of the right-of-way as a trail poses no unreasonable burden on the servient estate; indeed, the use is less burdensome than freight railroad use.”44 Chevy Chase Land Co. v. United States, 733 A.2d 1055 (Md. 1999). https://www.courtlistener.com/opinion/1979940/chevy-chase-land-co-v-united-states/45 Ferster, Andrea C. “Rails-to-Trails Conversions: A Review of Legal Issues” American Planning Association: Planning and Environmental Law 9/06. http://www.railstotrails.org/resourcehandler.ashx?id=4612

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The Pollnows lived adjacent to a former Milwaukee Road Railroad, which ended service in 1973.

The State of Wisconsin Department of Natural Resources purchased the right of way through

quitclaim deed for trail purposes in the same year, while the state received a quitclaim deed

from a property owner (who owned the Pollnows’ parcel prior to their arrival) in 1975. The

court agreed with the Pollnow’s assertion that the railroad’s right of way was an easement and

did not have a fee simple absolute. The court then looked deeper into the easement in question

to find if its scope included transition to a trail use. Citing Faus v. City of Los Angeles,46 the State

argues that trail use is a legitimate evolution of public transportation corridors over time. The

court, however, disagreed and postulated that the case in question stretched “the principle of

Faus beyond reasonable limits.” The Supreme Court of Wisconsin ultimately held that the

Department of Natural Resources’ deed to the corridor did not give it title, and thus was

reserved for the Pollnows.47

The limits to shifting public use in California were also defined by the courts in 2004. The United

States Court of Appeals case Toews v. U.S.A. involves adjacent landowners bringing a takings

claim against the federal government. The predecessors of those who owned the land that

underlay the railroad corridor in question created an “Agreement of Right of Way” in 1891,

allowing for rail use on their property. Unlike some more ambiguous agreements between

property owners or governments and railroads, this agreement contained explicit language

pertaining to what should occur if the corridor was to become abandoned and rail use

46 Faus v. City of Los Angeles involved an easement that was used for an electric railway. The court ruled that the easement was not destroyed when the use transferred to motor coach service because the express purpose of the easement was still satisfied.47 Pollnow v. Department of Natural Resources, 88 Wis.2d 350 (1979). http://www.leagle.com/decision/197943888Wis2d350_1412.xml/POLLNOW%20v.%20DEPARTMENT%20OF%20NATURAL%20RESOURCES

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discontinued: “Provided, however, that if said Railroad Company shall permanently discontinue

the use of said railroad the land and Rights of Way shall at once revert to the undersigned.”48

There was also little question over the nature of the granted land, at least in terms of its being a

fee or an easement, as both the trial court and United States Court of Appeals believed it to be

an easement. Because the federal government did not disagree with the right of way’s

designation as an easement, only the scope of the easement in regards to interim trail use, as

well as the extent of the railroad’s abandonment were the main points of contention.

The government heavily relied on arguments based on California courts’ position on shifting

public use doctrine, including the decision in Faus. The court did not disagree that shifting

public use was present and lawful in the government’s argument, however noted that the

allowance of shifting between transportation modes over time was very narrow, and the

federal government’s interpretation of the doctrine was overly broad. Thusly, it was found that

the corridor’s interim use as a trail was a taking of property from adjacent landowners,

requiring just compensation to be paid by the federal government. It is interesting to note that

the City of Clovis, California, and not the federal government, actually implemented the

corridor’s trail use. However, because the City acted under Section 8 of the National Trails

System Act, the federal government would be responsible for just compensation.49

48 The court notes that: “a termination of the easements would not cause anything to “revert” to the landowner. Rather, the burden of the easement would simply be extinguished, and the landowner's property would be held free and clear of any such burden.”49 Toews v. U.S.A., 376 F.3d 1371 (Fed. Cir. 2004). https://a.next.westlaw.com/Document/Ibfc602798ba511d9af17b5c9441c4c47/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604090000014d2905cf745f664485%3FNav%3DCASE%26fragmentIdentifier%3DIbfc602798ba511d9af17b5c9441c4c47%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=df042b8e7e582ef0d748b006b87c8db9&list=CASE&rank=1&grading=na&sessionScopeId=bd40c4b1bff330d916aa35081f2a30c5&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

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v. Statute of Limitations for Takings Claims

Somewhat recently, courts have also made clear when the six-year statute of limitations starts

to run for rail-trail takings claims as established by the Tucker Act. In Caldwell v. U.S.A. (2004), a

party of adjacent landowners filed a takings claim against the federal government believing that

an abandoned railroad’s easement conversion to a railbanked trail was a compensatory taking.

The main point of contention, however, was not if the trail use was a taking, but rather if

Caldwell’s filing of the takings claim was still within the six-year window as provided by the

Tucker Act. Caldwell argued that the taking, and therefore the six-year window, did not begin

until the railroad’s right of way was physically established as a trail (October 11, 1996).

However, both the Court of Federal Claims and the Court of Appeals stated that the statute of

limitations begins to run as soon as a railroad and a prospective trail group originally contact

the Surface Transportation Board about their objective of creating a trail use agreement and a

Notice of Interim Trail Use is issued. This, the court argues, is the “only government action in

the railbanking process that operates to prevent abandonment of the corridor and to preclude

the vesting of state law reversionary interests in the right-of-way.” In Caldwell, the Notice of

Interim Trail Use was first issued on August 31, 1994, with revisions filed on June 2, 1995. The

difference between these two dates did not matter, as both occurred more than six years

before the takings claim was filed by Caldwell. Thus, the Court of Appeals affirmed the

judgement of the Court of Federal Claims and Caldwell’s takings claim was dismissed.50 Caldwell

was heavily cited in the United States Court of Appeals decision in Barclay v. United States

(2006), where it was again found that the date of establishing the original Notice of Interim Trail

50 Caldwell v. U.S.A., 391 F.3d 1226 (Fed. Cir. 2004).

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Use starts the six year window of opportunity for filing a takings claim. The court argues that

the Caldwell rule should be used in all takings claims so as to avoid unnecessary litigation over

the exact date of accrual.51 52

2. Federally Granted Rights of Way

Federally granted rights of way are somewhat more clear-cut in terms of the transference of

title after a railroad corridor is abandoned. This is demonstrated in Brown v. Washington, in

which landowners believed that an abandoned railroad’s property reverted to them upon

abandonment. Unlike the previously mentioned cases, Brown involved a rail corridor that was

granted (by deed or charter) to the Chicago, Milwaukee, St. Paul & Pacific Railroad Company by

the federal government. This gave the railroad company explicitly-stated fee simple title over

the corridor, and thus gave these same rights to the State of Washington, who bought the

property in question prior to the railroad’s formal abandonment. Because of this, the Supreme

Court of Washington ruled that the property owners did not hold a reversionary interest and

the corridor could be retained by the state for trail purposes.53

51“The appellants' arguments in these cases urging a different trigger, depending on when abandonment occurred under state law, when the last NITU in a series was issued, or when the NITU was no longer subject to collateral attack, merely emphasize the correctness of the Caldwell rule. Appellants' arguments lead potentially to multiple takings of a single reversionary interest and endless litigation concerning the appropriate date for accrual, thus leaving landowners and the government in a state of great uncertainty as to their respective rights and obligations. Here, as in Caldwell, we conclude that takings law supplies a single bright-line rule for accrual that avoids these adverse consequences.”52 Barclay v. United States, 443 F.3d 1368 (Fed. Cir. April 11, 2006). https://a.next.westlaw.com/Document/I9759b4dcc93111da89709aa238bcead9/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040c0000014d2b56a9049d68a6d4%3FNav%3DCASE%26fragmentIdentifier%3DI9759b4dcc93111da89709aa238bcead9%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=aa3d31d1f23059c629b33fd4fba4efe7&list=CASE&rank=1&grading=na&sessionScopeId=878c8de3f7e270cc7a7738ec9ce91cd4&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%2953 Brown v. Washington, 130 Wn.2d 430 (1996). http://courts.mrsc.org/mc/courts/zsupreme/130wn2d/130wn2d0430.htm

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Phillips v. Denver & RGWR in 1996 furthered case law related to federally granted rights of way.

For formal railroad abandonments, a corridor must be “authorized” for abandonment through

a determination by the Surface Transportation Board (at the time the ICC) that the corridor is

no longer needed for interstate commerce purposes. The authorized abandonment by the STB

is then able to be put up for judicial review and declaration.54 55

i. Rights of Way Granted Under Civil War-Era Acts

Vieux v. East Bay Regional Park District affirms 43 U.S.C. § 912’s (Disposition of Abandoned

Railroad Grants) ability to control transfers of title to rights of way that were granted federally

under the Acts of July 1, 1862 and July 3, 1864 (the Civil War-era grants). Central Pacific Railway

Company, acquired later by Southern Pacific, took control of the property in question in Vieux

through these means. Before abandonment, the corridor was purchased from Southern Pacific

by Alameda County (California) for purposes of establishing a “public highway or street” (as was

deemed necessary by 43 U.S.C. § 912). The land was then donated to the East Bay Regional Park

District for trail use. Because these transfers were legal under 43 U.S.C. § 912, adjacent

landowners have no reversionary interest in the abandoned rail corridor.56

Similar to Vieux v. East Bay Regional Park District, King County v. Burlington Railroad Corp.

(1994) affirms the disposition of federally granted rights of way that were granted with the Civil

War-era grants (specifically the Northern Pacific Land Grant Act of 1864) by 43 U.S.C. § 912. In

54 It should be noted that abandonments are not determined by the Surface Transportation Board, as they are simply given abandonment authority.55 Ferster, Andrea C. “Rails-to-Trails Conversions: A Review of Legal Issues” American Planning Association, Planning & Environmental Law 9/06.56 Vieux v. East Bay Regional Park District, 906 F.2d 1330 (1990). http://openjurist.org/906/f2d/1330/vieux

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http://openjurist.org/906/f2d/1330/vieux


this case, King County argued that a railroad corridor, now used as a trail and formerly operated

by the Burlington Northern Railway, was in fact abandoned, and was successfully transferred

for use as a “public highway” pursuant to 43 U.S.C. § 912. Burlington Northern, agreed that the

railroad corridor was abandoned, however believed that the “public highway” condition was

not met by King County. After reviewing 43 U.S.C. § 912, relevant King County planning

documents, and looking at cases such as Vieux v. East bay Regional Park District, the District

Court of Washington decided that the corridor in question had been abandoned and its trail use

did constitute a “public highway.”57

ii. Rights of Way Granted Under the 1875 General Railway Right of Way Act

In 1982, the Oregon Short Line Railroad and the Union Pacific Railroad Company applied to

abandon a section of their railroad line with the ICC, who gave the companies a one year

window of opportunity in making a final abandonment decision. Halfway through 1983, Oregon

Short Line and Union Pacific both decided not to go through with abandonment procedures,

instead keeping the track as sidetrack storage. The State of Idaho began negotiations to acquire

portions of the railroads’ land in order to widen adjacent highways. Oregon Short Line and

Union Pacific refused to simply transfer the property to the State under 43 U.S.C. § 912, and

instead asked for $5.5 million. The conflict eventually wound up in the Idaho District Court as

State of Idaho v. Oregon Short Line Railroad Co. in 1985. In its decision, the court ruled that 43

U.S.C. § 912 does in fact apply to federally granted rights of way under the 1875 Act.58 59

57 King County v. Burlington Northern, 885 F. Supp. 1419 (W.D. Wash. 1994). https://casetext.com/case/king-county-v-burlington-northern-rr-corp58 State of Idaho v. Oregon Short Line Railroad Co., 617 F. Supp. 207 (D. Idaho 1985). https://casetext.com/case/state-of-idaho-v-oregon-short-line-r-co-259 Judge Callister, Chief Justice of the United States District Court for the District of Idaho, in Oregon Short Line: “This Court has the obligation to interpret § 912 (and §§ 913 and 316) in such a way to fully effectuate

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Two other cases, Marshall v. Chicago Northwestern Transportation Co. (1994)60 and Barney v.

Burlington Northern Railway Co. (1992),61 affirm the use of 43 U.S.C. § 912 when railroads

abandon their corridors that were granted under the Act of 1875.

There have, however, been some conflicting decisions by courts regarding federally granted

rights of way under the Act of 1875. For example, in City of Aberdeen v. Chicago and

Northwestern Transportation (1984), the District Court of South Dakota decided that 43 U.S.C. §

912 did not apply to portions of an abandoned railroad’s right of way that were granted under

the Act of 1875. Citing Great Northern Railway Company v. United States (1942), the court

argued that the Act of 1875 only granted easements to railroads, which made Section 912

irrelevant to the case.62 More recently, a similar decision was reached in Marvin M. Brandt

Revocable Trust v. United States (2014). For a more detailed discussion of Brandt case see

Section E.

iii. Pre-Civil War Grants

Land was also granted by the federal government to railroads before the civil war, in

agreements between states and the federal government. These grantings, “for the purpose of

aiding in the construction of a railroad,” act similarly to the Civil War-era and 1875 grants, and

incite similar conflicts. One such example involves an abandoned railroad right of way in congressional intent: These statutes would be rendered null if this Court were to find them inapplicable to 1875 Act rights-of-way, for they were specifically enacted to dispose of the United States' retained interest in 1875 Act rights-of-way…In enacting these statutes, Congress clearly felt that it had some retained interest in railroad rights-of-way. The precise nature of that retained interest need not be shoe-horned into any specific category cognizable under the rules of real property law.” 60 Marshall v. Chicago Northwestern Transportation Co., 31 F.3d 1028, 1032 (10th Cir. 1994). https://casetext.com/case/marshall-v-chicago-northwestern-transp-co61 Barney v. Burlington Northern R. Co., 490 N.W.2d 726 (S.D. 1992). https://www.courtlistener.com/opinion/2116706/barney-v-burlington-northern-r-co/62 City of Aberdeen v. Chicago and Northwestern Transportation, 602 F. Supp. 589 (D.S.D. 1984). https://www.courtlistener.com/opinion/1633897/city-of-aberdeen-v-chicago-north-western-transp/

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Wisconsin converted into a trail, which adjacent landowners believed should have reverted to

their ownership. Bayfield County, Wisconsin, who took over ownership of the corridor after

abandonment and installed the trail, believed that it had legal control over the land due to 43

U.S.C. § 912. In Mauler v. Bayfield County, the United States Court of Appeals, Seventh Circuit

ruled in favor of the County, stating that 43 U.S.C. § 912, as well as 16 U.S.C. § 1248(c), legally

allowing the rail corridor to be reverted back to the United States and not the adjacent

landowners.63

Illinois has also dealt with cases involving similar pre-Civil War agreements between states and

the federal government. In City of Maroa v. Illinois Central Railroad (1992), the Appellate Court

of Illinois found that the City of Maroa was correct in arguing that a former railroad right of

way, granted by the federal government in 1850, reverted to the City upon abandonment

under 43 U.S.C. § 912.64 65 66 Along the same lines, the Appellate Court of Illinois also found in

Marlow v. Malone that Section 43 controlled how reversions of federally granted rights of way

before the Civil War were to be handled. Marlow specifically dealt with an adjacent property

63 Mauler v. Bayfield County, 309 F.3d 997 (Seventh Cir. 2002). http://openjurist.org/309/f3d/997/mauler-v-bayfield-county64 The court contrasted the opinion in Illinois Central Railroad Co. v. Chicago, B&N Railroad Co. (1886), which stated that “The [1850] grant was made for the purpose, in the main, of encouraging settlement, and thus developing the resources of the state and promoting the welfare of the people. It was a grant by the United States to the state on the faith that the latter, as a sovereign, would see that the conditions of the grant were complied with. It was not the intention of congress to provide for the building of lines of railroad within the state of Illinois which should be perpetually maintained for the benefit of the United States.”65 While 43 U.S.C. § 912 allows for abandoned federally granted rights of way to revert to adjacent landowners, it dictates that if the corridor traverses a municipality, the land reverts to that municipality: “lands within a municipality the title to which, upon forfeiture or abandonment, as herein provided, shall vest in such municipality…”66 City of Maroa v. Illinois Central Railroad, 229 Ill. App.3d 503, 592 N.E.2d 660 (1992). http://www.leagle.com/decision/19921252592NE2d660_11152.xml/CITY%20OF%20MAROA%20v.%20ILLINOIS%20CENT.%20R.R.

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owner who claimed reversionary rights, however did not hold title to the land from which the

railroad corridor was granted.67

iv. Conflict between Courts

Somewhat recently, assumptions about federally granted rights of way have become clouded

due to conflicting decisions from different courts. One such case that varied from those

previously involving federally granted rights of way was Hash v. U.S.A. (2005). Landowners

along an abandoned rail corridor in Idaho converted into a trail brought takings claims to the

Federal Circuit, arguing that that the railroad’s property should have reverted to them. Many of

these plaintiffs owned land that was patented by the federal government under the Homestead

Act of 1862, which was predated by federally granted railroad rights of way. The court ruled on

the side of the adjacent landowners, stating that homesteaders gained fee title to the land

under the federally granted rights of way, and that the landowners did indeed suffer a taking

when the land was designated for trail use. It is interesting to note that the court admitted that

national land policy is changing, especially in regards to conservation and recreation. However,

the court stated that landowners’ property rights must be respected no matter what shift in

policy occurs, and that these rights were to be dictated by the laws in effect when the original

67 Marlow v. Malone, 315 Ill. App.3d 897, 734 N.E.2d 195 (App. Fourth Dist. 2000).

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homesteaders obtained the land.68 69 Such a decision seemingly ran against most previous court

cases in how federally granted rights of way were disposed of upon abandonment.

v. Marvin M. Brandt Revocable Trust v. United States, 2014

Future rails-to-trails conflict may hinge on a 2014 Supreme Court decision in Marvin M. Brandt

Revocable Trust v. U.S. In 1976 the Brandts received fee simple title over an 83 acre parcel of

land adjacent to a National Forest, through a patent by the United States, which came with the

stipulation that a railroad right of way ran over a portion of the property. The railroad corridor,

being established in 1908, was granted by the federal government pursuant to the General

Railroad Right of Way Act of 1875. After passing through the several hands, the railroad

corridor was deemed unprofitable and was summarily abandoned between 1996 and 2004 (and

was subsequently converted into a trail). After abandonment, the federal government sought a

judicial order stating that the title to the abandoned corridor would transfer to the United

States.

68 “Statute and jurisprudence over the century and a half of railroad development and homesteading reflect the nation's shifts in both land policy and rail dependency. The government stresses that the present national policy is in marked contrast to earlier homesteading policy, and that the earlier movement of federal lands into private ownership is now countered by a policy whereby government title serves national interests such as conservation and public recreation. The appellants respond that the nation, and the courts, must respect these landowners' property rights, whatever the shifts in public attitudes or national policy. We agree that the judicial obligation is to apply the law, to construe the property interests here at issue in accordance with the law in effect at the time the various arrangements were entered into, in implementation of the parties' intent, guided by the decisions of the Supreme Courts of the United States and of Idaho.”69 Hash v. U.S.A., 403 F.3d 1308 (Fed. Cir. Four, 2005). https://a.next.westlaw.com/Document/I01273ad2a3d511d991d0cc6b54f12d4d/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705210000014d26e2543df6971407%3FNav%3DCASE%26fragmentIdentifier%3DI01273ad2a3d511d991d0cc6b54f12d4d%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=af7ab27f34cc96b9d9d9993bbcf60265&list=CASE&rank=1&grading=na&sessionScopeId=f030a65a26729ee0a164af35e3dc7bb5&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

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One landowner along the corridor, Marvin Brandt, believed that he would obtain title to the

land because the corridor was only an easement, and had dissolved as soon as it was formally

abandoned. Both the District Court as well as the Court of Appeals argued in favor of the

federal government, however noting that conflict existed in the courts regarding proper

treatment of the 1875 Act.

When the case reached the Supreme Court, the decision ultimately fell on the side of Brandt,

largely because of a Supreme Court case from 72 years prior- Great Northern Railway Co. v.

United States. In Great Northern, the federal government actually argued the opposite of what

it was positing in Brandt, that a rail corridor granted under the 1875 Act was only an

easement.70 The court in Great Northern agreed and held that the 1875 Act “clearly grants only

an easement, and not a fee.” Because of the federal government’s seemingly contradictory

stance regarding the 1875 Act’s conveyance of fees or easements, the Supreme Court

somewhat harshly argues on the side of Brandt, even remarking that the government’s change

in opinion was “self-serving.” 71 72

70 Great Northern involved a railway company that wished to construct an oil extraction operation in public lands in Montana. The United States wanted to retain its underlying rights to the corridor so as to block the drilling from occurring. 71 Justice Sotomayor dissented, stating “By changing course today, the court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”72 Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (Supreme Court of the United States, 2014). https://a.next.westlaw.com/Document/I096114a1a83f11e3b58f910794d4f75e/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705200000014d307add988b2720e0%3FNav%3DCASE%26fragmentIdentifier%3DI096114a1a83f11e3b58f910794d4f75e%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=a5dfaf7ba032990918cacf110ba3dc4d&list=CASE&rank=1&grading=na&sessionScopeId=022d5acbf9d0e5aa8dd170aa7309ea25&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

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In regards to rail-trails, the impact of Brandt is mixed. The Rails to Trails Conservancy states, for

example, that only corridors that were federally granted under the 1875 Act would be directly

affected by the decision. All railbanked corridors, other federally granted corridors, and corridor

acquisitions from private landowners should remain safe from further litigation. The

Conservancy notes that while most of the corridors granted under the 1875 Act only lie in the

western half of the United States, Brandt directly opens the door for future cases aimed at

obtaining compensation for the corridors’ continued use as trails.73

E. Conclusion and Future of Rails to Trails

Trails are more popular now than they have ever been in the United States largely because of

the wide range of groups that see them as a benefit to their cause. While demand for trails is

increasing as more people become aware of their positive effects on air quality and traffic

congestion, the future of rail-trails is uncertain.

For one, the number of railroad corridors becoming abandoned each year has tapered off,

leaving a smaller pool of possible railbanking or trail implementation locations. In addition,

major United States rail carriers, including Norfolk Southern and CSX, have stated that rail

traffic is actually increasing, leading them to forego abandoning or banking their lightly-used

corridors. In the place of abandonment or banking, railroad companies have been retaining

their rights of way through “discontinuance authorities” which allow for discontinued service,

73 “What the Marvin M. Brandt Case Means for America’s Rail-Trails” The Rails-to-Trails Conservancy 3/17/14. http://www.railstotrails.org/trailblog/2014/march/17/what-the-marvin-m-brandt-case-means-for-america-s-rail-trails/

32


but retention of the right of way. Railroads would simply rather avoid altogether any potential

litigation that may arise through abandoning and/or reinstating service along a corridor.74

Recent court cases have also left the future of rail-trails cloudy. While railbanking has fared well

in courts, especially with 1990’s Preseault v. ICC (which found railbanking constitutional), rail-

trails established through other means have not received the same treatment. Cases such as

Hash and Brandt have greatly undermined rights of way granted by the federal government

through the grant Acts of the latter 1800s.

The future of rail-trails relies heavily upon interpretations of rail corridors’ rights of way and

their corresponding scope: courts have generally agreed that railroads’ rights of way are

easements and not fees, but have disagreed over the easements’ scope. Shifting public use

represents a policy that could greatly benefit the continued implementation of rail-trails.

However, while the policy has achieved some success in states such as Minnesota and

Maryland, its widespread viability has been put into question through court cases such as

Pollnow and Toews.

As of September 2013, roughly 8,000 takings claims involving rail-trails are pending.75 With

potential railbanking opportunities dwindling, advocates of rail-trails will have to push for

railroad easements to be treated more broadly in order to assure the future creation of rail-

trails and assure the sustainability of already established trails. However, as demonstrated in

recent court cases, their advocacy may be an uphill battle.

Sources:74 “Issues Related to Preserving Inactive Rail Lines as Trails” United States General Accounting Office 10/99.75 Macdonald, Stuart. “Rail trail case decided by Supreme Court favors adjacent landowner” American Trails. http://www.americantrails.org/resources/railtrails/Federal-railroad-rights-court.html

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“Railbanking and Rail-Trails: A Legacy for the Future” Rails to Trails Conservancy 3/05. http://atfiles.org/files/pdf/legacyrailbank.pdf

Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (Supreme Court of the United States, 2014). https://a.next.westlaw.com/Document/I096114a1a83f11e3b58f910794d4f75e/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705200000014d307add988b2720e0%3FNav%3DCASE%26fragmentIdentifier%3DI096114a1a83f11e3b58f910794d4f75e%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=a5dfaf7ba032990918cacf110ba3dc4d&list=CASE&rank=1&grading=na&sessionScopeId=022d5acbf9d0e5aa8dd170aa7309ea25&originationContext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

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http://atfiles.org/files/pdf/legacyrailbank.pdf

http://atfiles.org/files/pdf/GAO-Preserving-Inactive-Rail-Lines-Trails.pdf

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Rails to Trails - Past, Present, and Future

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