Rails to Trails

Protect Your Property Rights!
Take a Stand for Your Land!

Photo of Board Member Henry Ingram, Esq. Henry Ingram, Esq.

Article Appears in the Pennsylvania Landowner - May 1996
Rails-To-Trails
The Greening Goes On

Until very recently, Pennsylvania law was clear about what happens to a railroad right-of-way when a railroad company terminates service on a particular rail line “abandons” the right-of-way. In virtually all cases, with very few “Ands, ifs or buts,” the land reverted to landowner across whose property the railroad right-of-way passed. While the right-of-way was being used for railroad purpose, the landowner had what is known as a “reversionary interest. ” Upon abandonment, the reversionary interest ripened into or vested and the right-of-way or easement ended. The landowner was free to use and enjoy the former right-of-way property as he saw fit.

In 1983, Congress, in passing the federal Rails-To-Trails Act, perpetuated one of the more transparent sleights of hand in our history. It legislated a “suspension” of these reversionary interests held by landowners everywhere and made the rights-of-way available to the public for “interim trail use. ” Railroad rights-of-way were being abandoned in droves by failing or downsizing railroads and, spurred on by environmentalist/recreationist advocacy groups, the redistributionists then in Congress seized this opportunity to take these private property interests and to make them available at no cost to strangers, without providing compensation to the landowners whose rights were being trampled. For long time, most citizens believed that the Fifth Amendment to the Constitution protected them against takings, particularly when what was taken-the use of the right-of-way property-was given to other citizens-the trail users.

The sleight-of-hand artists in Congress must have really had some concerns that the purported public purpose for this rip-off would not hold up under constitutional scrutiny because, to buttress the purported public purpose, they concocted a gigantic fiction- the national rail bank- into which landowners reversionary interests would be deposited and held in public trust for future use by railroads to support the national rail system. Said our congressmen, the reversionary rights were merely being “suspended,” not taken. “By the way folks, while waiting for this need to use the rights-of-way for railroad use to arise in the future-during this period of “suspension,” we’ll let qualified trail users use the rights-of-way for recreational trail purposes without paying a nickel. ” If you read the Congressional record closely enough you can see the Congress really wasn’t concerned or even serious about holding onto old railroad rights-of-way for future rail use, but they were concerned that the reversionary owners of the rights-of-way weren’t knuckling under to demands to allow the rights-of-way to be used for public trails.

To further obfuscate the situation, Congress gave regulatory authority over what came to be known as the “Trail conversion’s” (bureaucrats “hide-the-ball” language for taking from Peter and giving to Paul) to the Interstate Commerce Commission (ICC) which already regulated abandonment of rail service. The ICC fawningly obliged Congress by developing a one-sided, unfair and almost incomprehensible regulatory procedure to rubber-stamp trail conversions. Suffice it to say the landowners whose interests were being “suspended,” in the old days, we’d say taken, weren’t given much opportunity to participate in the ICC abandonment proceeding and the first time many learned of the loss of their rights was, literally in many cases, when they read about a new trail in the newspaper or had a trail user throw a beer can into their backyards.

Needless to say, a few landowners quickly smelled a rat and began to challenge rails-to-trails conversions, often invoking the Fifth amendment. Ultimately, a case Presault V. ICC, reached the Supreme Court of the United States. In 1990, the Supreme court brushed aside takings claims by saying that since there was a “valid” public purpose for the taking identified by Congress (i.e. storing the abandoned rights-of-way for future railroad use is the equivalent of maintaining a strategic reserve of buggy whips in case Model T technology doesn’t pan out) and since the Tucker Act provides a compensation remedy for the landowner, the Is Rails-to-Trails Act passed constitutional muster and did not work a taking of the Presaults’ property. All the Presalts had to do was present their case to the U.S. Court of Claims in Washington, D.C. The compensation case started shortly after the Supreme Court’s decision and it is still in court.

By now you should be beginning to catch the draft of where this is going. After a trial, the Court of Claims, in one of the most facile opinions you could find, held that there was no taking and therefore no compensation was due. The Presaults appealed and various judges and panels of the Court of Appeals ruled against the Presaults. Recently, this awful result was vacated by other judges of the Court of Appeals in yet another “decision” is expected shortly. Hopefully some sanity will be restored as the appellate review process plays out.

At this point, you have to stop and remember what the Constitution says. It says “Nor shall private property be taken for public use without just compensation. ” it doesn’t say “Property can be taken by the government for some cockeyed, fictional public purpose so long as the owner and his lawyers are given the right to engage in expensive, time-consuming litigation in remote courts with the owner having burden to prove the taking to unelected judges who are given the presuming the Congress knows what it is doing and deferring to the formulations of agency bureaucrats. ” the Fifth Amendment is supposed to be a vital part of the Bill of rights-of protection against the government-not an invitation to sue or be sued. As it stands now, ordinary citizens, including owners of reversionary interests in railroad rights-of-way, are pretty well priced out of the Fifth Amendment litigation market.

Ok folks, that’s federal Rails-To-Trails for you. Viewed from the perspective of the rural landowner who has abandoned railroad rights-of-way on his property, it looks like all three branches of the federal government are collaborating to eliminate his property rights.

Needless to say, state and local governments were quick to follow the federal lead and began to craft their own programs and activities to take advantage of something all politicians love, the opportunity to create a perceived public benefit-a new recreational facility, a trail, without having to pay for it by raising local taxes. There would be no land acquisition costs because they could use abandoned rights-of-way for free and get state or federal funding if they needed operating money.

“Funding you say. I thought money was tight and we couldn’t have any more budget buster programs. In fact, isn’t Tom Ridge trying to increase gas taxes again so PennDOT can fix our roads?” The creativity of politicians in finding ways spend our money beggars the imagination. Although many of us thought the country was coming to its senses on deficit spending and out-of-control government programs-remember the 1994 congressional elections-tax and spend programs already in place began to pump big money into Rails-to-Trails. We all know about the federal gas tax-28 cents a gallon. But how many of us know how much money is raised by the federal gas tax or where it goes. I can tell you that under the Intermodal Surface Transportation Act of 1991, smirkingly referred to by bureaucrats as “ISTEA,” 10% goes to transportation “enhancements” which can and does mean trail conversions. Now you have it, all those bikers riding through your backyards are part of the national transportation system, just like all those abandoned rights-of-way that are piling up a National Rail Bank for future railroad use. The way it works is this-The United States Department of Transportation parcels the ISTEA enhancement money out to the states and the states dish it out to local governments and trail promotion groups. This is big money and it’s your money. Do we really want to keep paying federal gas taxes to promote the destruction of private propert rights?

On the local scene, isn’t it bad enough that Pennsylvania may have to raise its gas tax just to repair and maintain our roads, highways and bridges. Why wouldnt our political leaders lobby congress to use Pennsylvania’s share of the ISTEA enhancement money for roads and bridges and hold off on Trails until the roads and bridges are fixed. Figuratively speaking, in Pennsylvania were going out for dinner and a show plus a couple of beers before we pay the rent and the grocer. It’s supposed to be the other way around, isn’t it? We all recognize that recreational amenities are nice, add to the quality of life and may even be essential, but we need to make politicians get their priorities in order. Let’s try to close this federal cookie jar. If you think about it, the rollback of President Clinton’s gas tax increase could be, in the newspeak of tax and spend government, “paid for” out of our ISTEA transportation “enhancement” money. I think transportation is enhanced when you ride down a well maintained Interstate with a little more change jingling in your pockets, don’t you? Why don’t we let our legislators know how we feel? Let’s not be intimidated by elitist trail promoters who are being financed with your money with the cooperation of local politicians who may not even know what is really going on. Some would say that if they do know, they shouldn’t be in office.

Sadly, for many readers of the Landowner something will begin to click. This ISTEA scam has a familiar odor. Then it should dawn on you. ISTEA smells like key 93, Pennsylvania’s own open cookie jar. And you can’t accuse our state legislators of really hiding that this too well. If you read the fine print, trails are by definition “all over” Key ‘93 and realty transfer tax money diverted annually to the Keystone Park and Recreation Fund is being used for trail promotion and development.

In a more perfect world (one in which the roads are fixed and taxes are lower) no one will object to a little “amenities” spending. But now, we simply can’t afford dinner out and a show until we pay the rent. It’s that simple.

As with any myopically crafted government program which runs roughshod over individuals and property rights, sooner or later, someone will have to take a stand. It’s happening in Rails-to-Trails. Landowners have been successful in challenging various aspects of the Rails-to-Trails structure. In Michigan, a United States Court of Appeals just couldn’t swallow the rail bank fiction and held that under state common law doctrine and abandon right of way could not be converted to trail use because it was impossible to use the right-of-way for a railroad in the future. In 1995, a Court of Appeals in Washington imposed some time limits on railroads and trail conversion promoters so that owners of reversionary interests in the right-of-way could not be kept in limbo, all the time with a cloud on the title to their land, while the ICC abandonment process dawdled on. Groups opposing trails are springing up throughout Country, including here in Pennsylvania. PLA has worked with such groups in Butler and Armstrong counties and litigation is pending in several courts.

Unfortunately, and it pains me to say this as a lawyer who frequently is asked to litigate, litigation is were the Government and the trail promoters want you. It is their home field in the field isn’t level. In most cases, it is a few a budding landowners against the Government and well funded, often Government financed, trail promotion groups. Just recall the Presault case discussed earlier. Very few of us have the resources or time to take on a battle of that magnitude. The fact is that most cases, with the way the deck is stacked, the alliance of Government and trail promoters, paid for by your tax dollars, will ultimately grind landowners with the audacity to resist trail development into the dust.

I know many of you voted for Tom Ridge and were confident that his views on property rights, views which have been eloquently expressed on these pages when he was a Congressman and Candidate for Governor, would lead to greater protection of property rights in Pennsylvania. But how many of you know that Mr. Ridge is throwing the full weight of his administration behind the Rails-to-Trails movement Pennsylvania. In collaboration with the Rails-to-Trails Conservancy Mr. Ridge, acting through his new Department of Conservation and Natural Resources, is planning to convene the Governor’s Conference on Greenways and Trails next February. It is clear that this conference is designed to promote trail development and Rails-to-Trails conversions. It will be a “How to do it” not a “Should we do it?” conference. All you need to do is look at the persons appointed to the Program Committee and the fact that 10 state agencies are being invited to participate on the Steering Committee to recognize the the Governor is forging an alliance with all the major trail promotion players and throwing the full weight of his administration behind the effort to move Pennsylvania into the trail business “big time. ” This is a clear public policy choice by this administration and it does not bode well for property rights in the commonwealth.

Obviously, our Governor has the right to lead us in the direction he thinks we should go. And, viewed in a vacuum, this concept of recreational trails is not a bad thing per se as long as the rights of individual citizens are not trample and they are compensated when their property is taken for the trail amenity. But think about. Is this and the direction we thought Tom would take us? I can understand why some Pennsylvanians are getting just a little nervous. How many of you readers will be invited to the Governors Conference?

Pennsylvania Landowners’ Association, Inc.

P.O. Box 391

Waterford, PA 16441

Phone: 1.814.796.4023