PLA Reversal Win!

Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - Summer 2003

Pennsylvania Landowners Win Reversal
In U.S. Court Of Appeals
Important “Rails-to-Trails” Case

Report by Hank Ingram
based on information furnished
by W.C. Smith, Esq.
In the case of Lucas, et al v.Bethel Township and Allegheny Valley Land Trust, where the district court in Pittsburgh had held that the issue of abandonment could only be tried before the ICC, and not in the District Court or in a Court of Common Pleas, the United States Court of Appeals for the Third Circuit (hereafter “Third Circuit”) in Philadelphia, reversed. Now, it will not be necessary to try the question of abandonment of railroad right-of-way property issues only in Washington, D.C.

The Lucas case has decided even more important issues concerning the granting of “rail banking” or approval of “interim trail use” by the trail groups under the federal Rails to Trails Act.

The trail advocates and three related cases had contended that that it is not necessary to comply with the regulations set forth in 49 C.F.R. 115 2.29 adopted for the Rails to Trails Act. The National Trail Conservancy has recommended to the trail groups that they argue that it is not necessary to comply with 49 C.F.R. 115 2.29, that it is not necessary for the Railroad to agree with the trail groups for trail use, that it is not necessary to file an application with the I.C.C. or the S.T.B. , and enter into a prior agreement to comply with the regulations set forth governing the Rail to Trail Act. They urged the trail groups that compliance is only “ministerial” and the good intentions later expressed after expiration of STB jurisdiction, which purported to comply with the intent and/or spirit of the Act, are sufficient and that such later actions are sufficient to bar reversion under the Rails to Trails Act even after jurisdiction of the ICC or STB has expired. This would have completely eviscerated the limited procedural safeguard Congress afforded owners of reversionary interests in right-of-way property under the Rails-to-Trails Act and regulations.

In his opinion, Judge Roth, of the Third Circuit held that where “The ICC was never asked to intervene and “suspend” abandonment by certifying an interim trail use under the National Trail Act, … the Act’s provisions are inapplicable to this case.”

Judge Roth’s Opinion states: “In order to preserve the right of way, however, the STB requires a sponsor wishing to maintain a trail to file certain documentation describing the site, indicating the users’ willingness to assume full responsibility for management, legal liability, and taxes, acknowledging that the users’ continuing obligation to meet the responsibilities. 49 C.F.R. 115 2.29(a)… if the abandonment is authorized under sec.308, the railroad must agree to negotiate a rail banking agreement before the STB will issue a certificate of interim (or CITU) to prevent the right of way from reverting under state property law.

49 C.F.R. 115 2.29…. the AVLT never met these requirements by filing with the ICC or STB, and Conrail refused to join the AVLT in filing for railbanking with the ICC. Thus, there is no basis for arguing that the STB has jurisdiction over this matter under the provisions of the National Trail Act” and local courts, applying local property law, had their jurisdiction restored.

“In this case … regulatory requirements for an interim trail use have not been met. The request for interim trail use has never been filed with the ICC or the STB and neither agency has authorized an interim use … nor could the AVLT meet these requirements because Conrail did not agree to join the AVLT in filing for railbanking … thus, the ICC has not authorized the AVLT to conduct any trail use that would preclude finding of abandonment of the Allegheny Secondary Track under state law. ”

DECISION OF PENNSYLVANIA SUPREME COURT IN CONFLICT WITH THIRD CIRCUIT AND U.S. SUPREME COURT

While the Lucas Federal case was under consideration in the Third Circuit, the Pennsylvania Supreme Court was deliberating the case of Buffalo Township Jones, et al., in which the cou pick one rt decided that an application to the ICC for rail banking was not necessary in order for the railbanking of a trail in Butler County.

There, Buffalo Township had withdrawn an untimely trail use request, submitted after the ICC requested further information concerning abandonment consumption and Conrail had refused to join them in the application, and the rails and ties had been sold and removed. The Supreme Court of Pennsylvania issued an order and opinion, holding that the requirements of the Federal Regulations,49 C.F.R. 115 2.29 were only “ministerial” and it was not necessary for Buffalo Township to comply to qualify for this “rail banking. ”

A request for re-argument of that decision had been filed on behalf of landowners, Jones, et al. By William Claney Smith,Esq. of Pittsburgh, who was also representing Lucas,et al. in the Third Circuit. Smith, of course, advised the Supreme Court of Pennsylvania of the Third Circuit’s totally contrary and presumably controlling decision on the exact same question of federal law. Nevertheless, without explanation, the Pennsylvania Supreme Court denied the request for re-argument.

PENNSYLVANIA SUPREME COURT APPEARS TO HAVE VIOLATED THE SUPREMECY CLAUSE OF THE UNITED STATES

LANDOWNERS REQUEST REVIEW BY UNITED STATES SUPREME COURT

The U.S. Constitution in article VI, clause 2, provides :
” This Constitution, and the laws of the United States which shall be made in pursuance thereof shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby anything in the Constitution or Laws of any State to the contrary notwithstanding. ”

The plain language of the Third Circuit decision established that ” rail banking is to be initiated in compliance with the requirements of 49 C.F.R. 115 2.29. by filing a timely application, for re-argument, veteran Attorney William Claney Smith, Esq., having brought this to the attention of the Pennsylvania Supreme Court, while the case was in deliberation, concluded that the Pennsylvania Supreme Court violated the Supremacy Clause when it denied a re-hearing after being notified of the controlling Federal law. To obtain review, a Petition for of Centiorari was filed in the U.S. Supreme Court on June 9, 2003, and is under consideration. Justice Saylor and Justice Nigro dissented, stating that the issue of abandonment should be decided by jury.

It must be noted that membership on the Pennsylvania Supreme Court is an elected office. That is why it is important for Pennsylvania landowners to be cognizant of the philosophy of Judges when they’re up for election or retention.

the rail to trail case in Armstrong County is on appeal before the Superior Court of Pennsylvania on the same issue of jurisdiction and noncompliance with the requirement to file an application for rail banking before the ICC. Motions have also been filed before the Court of Common Pleas, for summary judgment. The Superior Court is aware of the decision before the Third Circuit’s decision. It will be interesting to see the Superior Court complies with the decision of the Third Circuit. It is the position of landowners that the admitted facts establish abandonment and reversion of the right of way property to them. It is up to our Courts to protect their property rights.

The Landowner, including several PLA members and their attorney, W.C. Smith, are to be congratulated for taking the stand for their rights and breaking new ground in the Rails-to-Trails litigation. Good luck to them as the battle continues .

PLA filed an Amicus Brief in support of the Landowners Petition for Writ Certiorari

Pennsylvania Landowners’ Association, Inc.

P.O. Box 391

Waterford, PA 16441

Phone: 1.814.796.4023