Lawsuits Plague Rails to Trails – Might be $500 Million

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Not everyone is happy to have a bicycle trail running through their property. Go figure. Some have suffered from vandalism, parking issues, and worse. Many have sued to keep the trails from being developed or to be compensated for their losses. The total cost of dealing with the lawsuits may approach $500 million before the trails system is complete; $500,000,000 that could have been used to improve the facilities.

Eric Jaffe of the Atlantic Cities sets up the story this way:

People Love (to Sue) Rails-to-Trails Projects

Rails-to-trails projects — old railroad corridors re-purposed for hiking and biking — have exploded in popularity in recent years. Many of the 1,800 rail-trails that now exist across the United States run through remote areas, but there are lots that go through cities, too. The Elliot Bay Trail reaches downtown Seattle; the Katy Trail winds through cities in Texas, Oklahoma, and Missouri; and a whole bunch of rail-trails pepper the D.C. Beltway (via TrailLink):

Lately, these projects have come under heavy assault from adjacent landowners. Jenna Greene of the National Law Journal recently reported that the federal government has paid $49 million to property owners who filed just compensation claims against rail-trails this year alone. With 8,000 claims pending, according to Greene, the ultimate taxpayer liability could top half a billion dollars.

What went wrong? The answer goes back to a 1983 law that made it easier to convert old rail corridors into recreational trails. Before that time, potential trail managers often backed out of projects for fear of being drawn into a legal morass of land-ownership disputes.

The 1983 law tried to eliminate these problems through a provision called “railbanking.” In simple terms, the railbanking process loans a corridor to trail managers with the caveat that active rail service can resume at any time if necessary. The provision effectively gives trail managers the same immunity from landowner lawsuits that railroads themselves enjoy. “These rights of way are treated as if they were still active rail lines, because they’re railbanked for future rail service,” says Andrea Ferster, general counsel for the Rails-to-Trails Conservancy.

What the railbanking provision can’t do is stop landowners from suing the United States directly — claiming that the trails represent a new use of their old land, which therefore entitles them to just compensation. That legal route became easier in 1996, when the U.S. Court of Appeals for the Federal Circuit ruled in favor of a property claim against a rail-trail in Vermont. Since then, the federal government has been under assault with similar “takings” suits; Greene reports that one such case existed in 1990, compared with 80 on the books today.

The legalese can be confusing. Suffice it to say, the following scenario has now become all too common: a trail manager railbanks a former railroad corridor for recreational use, nearby landowners ask the federal government to compensate them (for land they wouldn’t have been compensated for if a railroad still ran), and the federal circuit tells the Treasury Department to cut a check. Oh, and for its troubles, the United States doesn’t even get the property deed under discussion.

What do the landowners have to say? Susie Rogers, writing for gives their point of view:

In 1990, a rail-to-trail conversion created opposition against a 25-mile Missouri Pacific line between Lincoln and the village of Wabash in Cass County, Neb. Following extensive flood damage in 1984, the railroad officially abandoned the line in 1990. In 1991, the Nebraska Trails Foundation bought the abandoned corridor and transferred title to the local Natural Resources District (NRD) for development into the MoPac East hike-bike trail.

However, adjacent landowners who have property adjoining the trail (including a couple near Wabash on the eastern end of the MoPac East Trail who have farmed in the area for more than 40 years and have a corridor dividing through their land were plagued by trespassing, trash, vandalism, and illegal hunting, a result of the easy access along the railroad line. The trail, they feared, would provide even easier access and make a bad situation worse.

Rail advocates point to 15,000 miles of trails already converted and the huge recreational treasure that has been created. The legal issues for those whose property is adjacent to the potential new trails, or who believe they may have a right to convert the property to their own use, is keeping lawyers busy with individual and class action lawsuits. The two articles sited above and available here and here go into great detail about the history of the right of ways, recent congressional action to create the rail banks, and some of the issues argued by both sides. Everyone likely agrees that the future of the issue is resting largely on the class action suit filed by Nels Ackerson. Susie Rogers continues her excellent reporting:

Nels Ackerson, an attorney with the Ackerson Group, a Washington law firm, filed a class action suit in federal court in Wichita, Kan., Swisher vs. U.S., on behalf of landowners in Kansas, Nebraska, Iowa, and Texas, saying the railroads often do not own the land on which they operate trains but rather have only a right to use the land for railroad purposes. And when the railroad abandons rail operations on the easements, their legal rights to use the land are extinguished.

Yet, even when confronted with a deed, railroads often refuse to admit this, so Ackerson is fighting on behalf of the landowners confronted with this dilemma. A federal claims court in Washington, D.C., ruled in 1997 that landowners who rightfully own land granted for trails under the Rails-to-Trails Act have a claim against the government for the land taken. The trouble is that the federal law has even restricted claims by landowners who realize they owned the right-of-way,” says James Baarda, a partner in the Ackerson Group.

Ackerson’s class action petition applies only to cases where the federal law was used to convert the use of the corridor for trails. Many conversions have been made without application of that law, but the right to the corridors varies greatly from state to state, from company to company, and from rail line to rail line.

But if the class action suit wins, numerous trail projects— some already complete and others in progress— may be postponed or eliminated. And the suit will likely have ramifications from the Atlantic to the Pacific. American Farm Bureau Federation (AFBF) spokesman Mace Thorton said that since the court petition was filed landowners from states not even named in the suit— such as Indiana and Wisconsin— have already contacted the AFBF.

Like any activity or program designed to create good, there are obstacles.  A Road Bike 4U is all for individual property rights.  But we would like to think that landowners would prefer a walking/cycling trail over a railroad.  We think it’s a bit selfish for a handful of landowners to hold up these amazing rail to trail conversions given the enormous benefits they provide the community.  Thankfully Rails-to-Trails Conservancy and others continue to advocate and raise money to extend the system.

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