Improving Railbanking

The Surface Transportation Board had a hearing on railbanking after 25 years. "Railbanking allows an out-of-use railroad corridor to be converted for interim trail use, thereby preserving the corridor until such time as rail service is deemed feasible or necessary again. Railbanking not only allows the construction of trails for public use, but it preserves these scenic corridors—and the incredible initial investment and labor of building them—for posterity." The Chairman, who occasionally bike commutes on the above pictured CCT, reassured everyone that railbanking would, and could not, be discontinued by the board. The board heard from trail interests, railroad interests and others interests; which included a group opposed to rail to trail conversions, the National Association of Reversionary Property Owners (who knew? They're like RTC's Lex Luther, except that they have a cheap little Earthlink site instead of LexCorp). Anyway the Rails-to-Trails Conservancy went first and talked of the successes, failures and opportunities to improve the system.
Marianne Fowler, RTC's senior vice president of federal relations, testified at the hearing(viewable in the hearing video).

Fowler included a set of four specific steps that the STB should consider to improve the feasibility of railbanking:

1.  
   1. Lengthen the timeframe between notice of abandonment and effective date of abandonment (the time within which public agencies have to act to secure the necessary approvals to initiate railbanking negotiations);
   2. Re-examine the required language for filing statements of willingness, and the breadth of the interim trail manager's required assumption of liability;
   3. Lengthen to one year (instead of 180 days) the amount of time available for interim trail use negotiations; and
   4. Make railbanking mandatory instead of discretionary, thereby preserving all corridors that are no longer profitable as rail service and preventing their eventual loss.

I wonder how that last recommendation would do before the Supreme Court.

Trail Users
During Ms. Fowler's testimony she noted that of the 9,105 miles of railroad corridor not railbanked, 162 corridors (of 832) have been turned into non-railbanked trails. But still, RTC argues that when a trail reactivates (not reanimates) to a rail line, the trail manager should not be required to pay the cost of restoration (so if the trail manager replaces a dilapidated bridge with a trail bridge, they can't be expected to then pay to build a new rail bridge when a rail operator takes over, as that would be a windfall for the railroad). They also argue that when a railbanked trail reactivates, the trail manager has to be compensated for their investment - a position not upheld by the STB in the Georgia Great Southern Division decision. On the mandatory railbanking question RTC argued that more railroads would be abandoned because, right now the railroads hang on to their corridors for fear that the community will fight them on railbanking but that mandatory railbanking would remove that threat. During her questioning, one interesting thing Ms. Fowler mentioned, that's pertinent to the Purple Line, is that if light rail is added to a railbanked corridor they have to keep the trail to keep the railbanking statute intact. So if Maryland adds the Purple Line to the Georgetown Branch they CAN'T pull an ICC-style bait and switch (building light rail, but cutting the trail) without negating the railbanking and reverting the land back to its underlining owners. That's nice to know.

Charles Montagne, a Madison County Transit employee and a former RTC lawyer, also talked favorably about railbanking. He said this is the first hearing he knows of on railbanking since the Georgetown Branch was abandoned. He talked about policy decisions that are needed on mandatory railbanking, reactivating issues, and severance issues (some have argued that if a rail line is severed from the main line it should not be eligible for rail banking). He talked about the ways that railbanking preserves corridors for transits and creates transit as trails. And he discussed the Georgia decision and how it puts trail operators at risk of being blackmailed - if a trail operator doesn't make a rent payment to a railroad, the railroad will file to reactivate service. Furthermore it puts transit operators at risk. If Maryland builds light rail on the Georgetown Branch, certainly a rail operator couldn't come in, tell them to tear it out and rebuild the rail structures - all without compensation. He also makes the point that, unfortunately, the railbanking law came along after the "horse was out of the barn" since the 80,000 miles lost by 1984 dwarfs the 15,000 abandoned since then, which probably dwarfs what will be abandoned in the future as most of the abandonment is done. Now the goal should be protecting existing trails. His breadth and depth of knowledge about railbanking was impressive, to say the least.

Railroads

Edward R. Hamberger of the American Association of Railroads states that the railroads are also fans of railbanking and suggests as one improvement that future agreements between railroads and trail managers include specific statements about who will deal with expenses should the rail reactivate. [There is oddly a lot of talk about Dune and whether the Bene Gesserit would approve of railbanking. You can't make this stuff up]. Peter Schultz of CSX talked about how many people in the room were veterans of the effort to railbank the Capital Crescent Trail and how everyone uses and enjoys it. He also showed slides of the High Line trail in New York City. Eric Strohmeyer of CNJ rail came to ask the STB to not deem reactivation as "New Construction" as the permitting and bureaucratic hurdles would make it cost prohibitive. He was also concerned about reactivation. Finally there was some discussion as to whether trail agreements should be submitted to the Board (with disagreement even among the railroads) or if the Board should be told when an agreement has been consummated.

NARPO

The lawyer for NARPO, Kathleen Kauffman, came to discuss how the trails act can be more fairly administered. The winners, she admits are the railroads and trail users, but according to her, the losers are the adjoining owners. She claims the trails drive down the property value for adjacent (reversionary) owners and increase crime for them (RTC has some evidence to the contrary, and the Chairman questioned them on these claims. She references a study from Washington state claiming that being close to a trail is good, but being next to one is bad) and that the unlimited extensions (after a notice of interim trail use is submitted) mean that the statue of limitations may run out before the reversionary owners even know that a trail will be built, denying them their property rights. She also says the taxpayers are losers, because the federal government compensates reversionary owners without the federal government making the decision about the railbanking [WC: though the STB does have a role]. She warns of trail groups that go defunct and leave property owners next to decaying properties or ugly and insecure trails. And they have five recommendations:

1. Adjoining land owners must be notified of a railroad's abandonment and intention to transition to a trail.
2. Railroads should be required to publish evaluation maps and land schedules when the notice of interim trail use is issued, so that land owners know what they own and the strength of their title.
3. The STB should issue a maximum of four 18 month extensions (to match the 6 year statute of limitations under the Tucker Act)
   
4. The STB should be notified on the consummation of the trail use agreement.
5. The STB should provide a simple process to seek relief from derelict trail managers.

[WC: These are all pretty reasonable, though I think #3 would be a bad idea. STB should have the discretion to extend or terminate a negotiation]
Obviously, NARPO is not interested in mandatory railbanking - because like the railroads - they lose control over their property rights.

The final speaker was Prof. Danaya Wright a lawyer with some expertise in property law as it applies to railroads. She argues that the reason railroads don't own their property is that, with rising anti-railroad sentiments, many states made it illegal for railroads to own land because they wanted to punish them for their high freight prices. In some cases, the land that railroads owned was changed to an easement without compensation. She goes on to list all kinds of ways that common law property rights has been ignored in cases that deal with railroads to the detriment of railroads because of this anti-railroad movement of the late 19th Century (For example, your title case can not be based on the weakness of the owner, but only on the strength of your own -  unless the owner is a railroad). She believes the courts are beginning to correct many of these exceptions and that the laws of deed interpretation are starting to be interpreted the same no matter the owner. To a large extent her presentation was meant to contradict the legal positions of NARPO. She points out that most adjacent landowners have deeds that explicitly exclude the ROW, they didn't pay for the land and they did not pay taxes on that land. NARPO is incorrect that federal compensation is compulsory and is, in fact, unusual. She and her students have examined over 7000 railroad deeds from the 19th Century and that over 80% are clear, fee simple, absolute deeds and the bulk of the rest are fee simple with some ambiguous elements such as the meaning of "Right-of-way", but none from the 19th century include the word easement (the idea didn't even exist). She concludes that railbanking is working, that the law is moving in a direction that protects all property owners and that the issues of reactivation can be addressed.

Photo by M.V. Jantzen

Comments

[James]

This is an off-topic inquiry, but does anyone know about utility rights-of-way and their compatibility with shared-use trails. For example, the W&OD is historically a rails-to-trails thing, but it has power lines and was owned by a power company at some point (with rights reserved to this day for power lines), right? What I'm wondering is if and how it's possible to get utility companies that have gas or electric lines across the region to create shared-use trails for bicycle transit. Sometimes it just seems like a waste to have these linear clearings through the forest that often connect towns not have a bike trail, especially when they could be used to connect to commuter rail/bus depots.

[Washcycle]

I agree. Some powerline trails have been built and there is no reason the two can't be compatible. But I suspect power companies would resist it.

[Stuart Macdonald]

See power line trail articles and related articles at http://www.americantrails.org/resources/land/
And see San Jose trail at http://www.sjparks.org/Trails/SilverCrLower/SilverCrLowerPhotos.htm

-- Stuart Macdonald, American Trails