Double click the blue above for a primer on railroad rights of way issues.
Property Rights Advocates and
Property Owner's Rights on the Rails to Trails Issues
This Web Page is brought to you by Dick Welsh, the executive director of NARPO. NARPO's address: 227 Bellevue Way N.E. Suite 719, Bellevue, WA 98004 --- Due to ongoing virus problems, NARPO will not open any e-mail unless the subject line contains any of the following words: rail trail, trails, or property rights. NARPO's E-mail address is: firstname.lastname@example.org
NARPO is a non-profit, tax exempt foundation dedicated to principles that private property ownership must be maintained in the hands of citizens and not the government. NARPO's major goal is to assist property owners in maintaining their complete land ownership and resisting government confiscation. We hope to keep you up to date on the latest court cases and federal and state law changes that effect the property rights of reversionary property owners to railroad rights-of-way. Feel free to browse and leave an e-mail message at the end of the page.
YOU CAN DOWNLOAD ANY OF THE ISSUES AND ARTICLES LISTED ON THIS WEB PAGE BY USING THE PRINT FUNCTION ON THE FILE MENU OF YOUR WEB BROWSER.
Updated February 20, 2015
NARPO's Railroad Right of Way Primer on Railroad Easements and Reversionary Rights
NARPO has available 600 plus pages that are media articles about trail crime and other trail problems. We now have most of the articles on a flash disc for easier mailing although because of a surge in trail crime the past two years, 100 of the newest articles have not been put on disc at this time. E-mail NARPO at:email@example.com -- for your copy, and remember to put the correct words (rails to trails or property rights) in the subject line or NARPO will not open the e-mail due to virus problems.
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THE LATEST NEWS ON RAILS TO TRAILS (RTC)
February 9, 2015 FOR IMMEDIATE RELEASE
$79 Million Verdict For Landowners Against Telecom Company
A federal court jury reached a $79,014,140 verdict on Friday, February 6th in favor of landowners and against a telecommunications company and its parent company that built its fiber-optic-cable network on landowners’ property. The companies used fiber on almost 800 miles of property for commercial telecommunications without obtaining legal authority from the landowners.
The $79 million award represents ten years of rent for the unauthorized use of more than 3,500 parcels of land in Missouri. The rental rate represented by the award is $1.88 per foot per year which is within the range of comparable commercial transactions. When the unauthorized commercial telecommunications use was discovered by the landowners, the defendants, Sho-Me Technologies and Sho-Me Power, refused to pay them anything even though they had income of $242 million for this period and paid thousands of dollars to railroads and other corporations for similar usage rights.
Friday’s verdict in the U.S. District Court for the Western District of Missouri follows highly-publicized cases across the nation in which landowners filed class action lawsuits against telecommunications companies, railroads, power companies and other utilities for taking land for commercial telecommunications purposes without paying compensation to landowners. Lead counsel in this case were also court-appointed class counsel in similar successful class action cases against AT&T, Sprint, Level 3, and Qwest, among others. However, this case is the first such class action to be tried and to receive a jury verdict.
In this case, the defendants made no offer of settlement despite the fact that the Court had determined they were liable to the class and the trial was only to determine the amount of compensation that was owed. The highly qualified jury included a majority with college or graduate degrees and a mix of privately employed persons, retirees and public servants.
Landowners who are expected to benefit from this verdict include thousands of farmers, ranchers, homeowners, and small businesses. “This has been a hard-fought battle to defend landowners’ rights. The jury verdict’s precise calculation of the damages demonstrates the jury’s careful understanding of the facts, and is a victory for Missouri landowners,” said Ron Waicukauski, lead trial counsel for the landowners. Kathleen Kauffman, who led the liability and class certification briefing, added, “This verdict is a victory for the judicial system as well as the landowners. It affirms the rule of law and the simple concept that no person or company is above the law. No one can take private property without consent or legal right, regardless of commercial benefit.”
Missouri counsel for the landowners, Heidi Doerhoff Vollet, said she was honored to have had an opportunity to play a significant role in bringing justice to so many Missouri landowners who had their land rights violated by this scheme. Fred O’Neill, also counsel for the landowners, was the one who discovered this abuse and assisted in bringing the defendants to answer for their disregard of the rights of those whose needs they serve.
Counsel for the landowners concluded, “All of us who were privileged to play a part in correcting this injustice and vindicating the property rights of Missouri landowners can only thank this country’s system of justice for giving us a chance to be a part of proving that everyone stands equal before the law.”
Chase Barfield, et al. v. Sho-Me Power Electric Cooperative, et al., Case No. 2:11-cv-4321NKL (W.D. Mo., 2015)
CONTACTS: For further information contact Ron Waicukauski at 317-633-8787; Kathleen Kauffman at 202-658-8008; Heidi Vollet at 573-635-7977.
3/6/2014—The U.S. Supreme Court ruled today in the case Brandt v. United States that the federal government does not have any interest in abandoned railroad rights of way in lands that the federal government patented years ago. This is a case where the little guy stood up to the US Attorney General who wanted to take land back the government sold or patented over 100 years ago. See the Supreme Court decision below which is in line with NARPO’s brief. http://www.supremecourt.gov/opinions/13pdf/12-1173_nlio.pdf
12/7/2013—Below is a National Law Journal article about the myth of the Rails To Trails movement http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202617646798&slreturn=20131107152814
10/4/2013—Click on the link below to see a Law Journal article about the fallacies of the federal rails to trails act. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202617646798&slreturn=20130903212301
9/13/2013—This is a letter of explanation from the attorney that is leading the nationwide class action lawsuit for compensation for abutting property owners of railroad rights of way where the railroad allowed the laying of fiber optic cable in the railroad rights of way. http://home.earthlink.net/~dick156/ClassActionMemo.doc
**This is a study done over a 35 year period on property values on
adjacent homes and property to a rail trail found
This will be in Word 6.0 for Windows format. Read this and use it when you have to show elected officials how rails trails will affect your property values. For a color graph of this property value disparity on the Burke-Gilman Trail click here You will need Adobe Reader to read and download this chart.
3/14/2013--NARPO Members, this is an update about the monetary settlement of a nationwide class action lawsuit against RRs and fiber optic companies that laid fiber optic cable in ROWs that were reversionary.
The Court that decided the lawsuit mandated the RRs and fiber optic companies to research every owner of property abutting any of the ROWs involved with this lawsuit which encompasses 46 states. The RRs and fiber optic companies were also mandated to send a letter to each abutting property owner identified in the research explaining the court settlement. As far as I can tell, the letters were sent at the same time they were required to post legal notices in nationwide magazines. If you look in last Sunday's Parade Magazine, you will see a notice. The web site I mentioned in the previous email, has a map of the United States. You can click on your state and see which properties are involved when you click on "Settlement Corridors" for each state selected. You can also read about the settlement, but it runs over 140 pages. Not all ROWs in a state are involved; in fact only a fraction of the ROWs in a given state are involved because the RRs and fiber optic companies did not use every ROW. You can see the nationwide map at this URL. https://fiberopticsettlements.com/
1/16/2013—Here is a pdf file that was written by an appraiser who does appraisals for property owners along abandoned railroad rights of way. http://home.earthlink.net/~dick156/Rails-to-Trails Property Rights Kielisch.pdf
1/1/2013—This article was written in 2004 but is very pertinent today for property owners subject to a possible rail trail. http://www.fee.org/files/docLib/teska1204.pdf
6/20/2012—Here is an article by an architect that makes a point about people keeping their property and making it better; rather then the government building housing areas for certain populations. http://home.earthlink.net/~dick156/Newman.html
2/10/2012-Here is an article NARPO wrote 15 years ago and it is still pertinent today. http://www.citizenreviewonline.org/2010/Dec/trails_boost_crime.html
12/19/2011—Here is a story about some Kansas property owners who have been battling a cheap and lazy trail group over an abandoned railroad right of way. The trail zealots arguments are childish. Enjoy! http://www.mcphersonsentinel.com/news/x2127213762/Controversy-continues-over-rails-to-trails-project
2/17/2-10—Click on this URL to see how New Jersey is wasting $23 million Stimulus money on a bike trail it appears only a few zealots want. Read he comments at the bottom of the article. They are hilarious.http://www.nj.com/news/index.ssf/2010/02/stimulus_will_fund_bike_pedest.html
2/10/2010—Click the link to see a letter to the editor of Orchard Park, New York, near Buffalo. http://home.earthlink.net/~dick156/orchardpark.doc
8/10/2009--On July 8, 2008 the Surface Transportation Board (STB) which controls and has jurisdiction of railroads in the United States had a public hearing on the First 25 years of the Rails To Trails program. The STB accepted written comments and also had spots available for interested speakers. NARPO and six others requested to speak. Sixteen groups or individuals chose to send in written comments. You can view the video of the hearing at: http://www.stb.dot.gov/stb/audiomee.nsf/71c35e25bd34f1f68525653300425877/5f58b4e01b190790852575ed0060efa6?OpenDocument
And you can also view the written comments at: http://www.stb.dot.gov/filings/all.nsf/(search-126.96.36.199-18586)?OpenView&Count=5000
The video of the hearing is over 3 hours long. The NARPO portion comes in around 1 ½ hour into the video. On August 7th, NARPO submitted additional comments and suggestions for new regulations to address property owners problems and concerns of how the STB administers the rails to Trails program.
7/10/2009--If you want to search the internet about trail crimes, go to www.google.com and type in “bike trail crime” in the query box and then hit enter. About 2 million articles will come up. Some are duplicates. Some are gruesome!
7/6/2009--Here is an article from the Reason Foundation about the billions of U.S. gas tax dollars being spent on bike trails. http://home.earthlink.net/~dick156/reason.doc
5/1/2009--This article by NARPO a few years ago shows the bad things that can come about because of rail trails. Click on http://home.earthlink.net/~dick156/hell.doc
5/1/2009--This is another NARPO article about how to influence elections to bring about property rights oriented people to elected offices. http://home.earthlink.net/~dick156/election.doc
5/1/2009-- This is a 2004 Government Accounting Office (GAO) article about the effects of rails to trails on property owners. Click here http://home.earthlink.net/~dick156/gao.txt
12/16/2008—This web site’ http://www.johnforester.com ‘ is about how bike trails can be bad when off-road.
8/4/2008--Here is an article about a Seattle bike trail costing $9 million a mile to put on a flat surface already prepared. This is another example of a liberal government gone amok with taxpayer’s dollars.
8/8/2008--This is a web site on property rights from Florida. A couple of the recent cases cited are very instructive for property owners fighting for their rights. http://www.propertyrights.com
is not a Rails to Trails case, but it shows you can beat the government at
their own game. Jax Jury Awards Land Owner
Occasionally, true justice prevails. In past editions, CPR has highlighted the highly aggressive eminent domain actions of the Jacksonville Port Authority. The agency appears to have no compunction in using eminent domain whenever they believe doing so will enrich their agency's coffers.
This week, a jury may have done what public and even national media criticism could not. In returning a $67 million award to Keystone Coal company owner, Tom Scholl, a small panel of ordinary citizens may have finally "checked" JaxPort's appetite. This verdict may represent the largest eminent domain jury award ever levied in Florida circuit courts. Since 2006, Scholl has battled for his right to keep and use his land: 70-acres of prime real estate along the St. Johns River which includes deep water frontage and direct railroad access.
Scholl bought the property from another private owner, after both he and JaxPort lost a competitive bidding opportunity. He had intended to develop it into a large-scale coal/bulk cargo terminal and spent several million dollars preparing the site for its future use. Despite these facts, JaxPort officials continued to market the property and negotiate with other more preferred end users. Their targets even included another larger coal company. Undaunted in their quest for his land, the Port filed a formal condemnation action just a few months prior to Florida's eminent domain reforms taking effect. JaxPort's actions were so egregious this case was featured in a special segment of the Hannity & Colmes show.
However, because their filing preceded the effective date of the new state laws which now prohibit transfers and leases to private owners, a judge ruled in the Port's favor and allowed the agency to proceed with this unconscionable taking. Thankfully, Florida's eminent domain process has several components. While a judge can rule on the permissibility of a government agency to take land for public purposes, compensation is decided by citizen juries. The review of property valuations by ordinary citizens provides a vital safety net for Florida property owners, as both elected and appointed judges have the potential to be influenced by political pressures. In pre-trial proceedings, for example, a local judge ruled Scholl's attorney could not introduce one of the most important pieces of evidence pertaining to the property's potential value: a memo from JaxPort indicating they were negotiating to lease the property for $11 million per year to one of Scholl's competitors, Drummond Coal. This document was a work product of a public agency openly disputing the value of this land and should have been welcomed by the court. However, even without this information, the jury was not fooled. They were diligent in their review of other key facts and recognized the property's global market value far exceeded the Port's suspiciously-low valuation of the property at $17 million.
Because this condemnation was filed as a "slow take," JaxPort's Board now has a final opportunity to consider whether or not the cost of seizing Mr. Scholl's property is too high, or they could decide to let him keep his land. Either way this ultimately plays out, it is a great victory for property rights! Florida land owners should join the Scholl family in celebrating. After several years of victimization and being burdened by unnecessary stress and costly litigation which he and his family did not seek out, justice has prevailed!
Congratulations to attorneys Andrew Brigham, Jackson Bowman and Mark Natirboff of Brigham Moore law firm and to real estate appraiser Heyward Cantrell for capably "making the case" in this landmark valuation trial!
CPR commentary on this case was featured in the Jacksonville Times Union article, "Jury Verdict Could Foil Port's Coal Site Plan." For full text: http://www.jacksonville.com/tu-online/stories/050608/bus_275704265.shtml
**November 20, 2007-The following link is to a great court win for northwestern Ohio residents who have been battling their local park district since 1997 about a trail through their property. The park district built a trail and would not pay the resident for the taking even though the residents owned the land. The residents went through many court fights at the local level which they lost, but they prevailed at the Ohio Supreme Court on November 20th. Now the park district either has to pay all their court costs and just compensation for the land taken, or the park district must remove the trail which is probably what will happen because of the costs. But the resident’s attorney fees and costs will have to be paid anyway by the park district as the residents were very smart and sued under laws that allow attorney fees and cost to the prevailing party. Usually under American law, you have to pay your own attorney fees whether you win or lose, but there are some laws that allow recovery of attorney fees and costs which is why it is important to choose an attorney that knows what they are doing (most don’t) when it comes to property rights. See the case results here- http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-6057.pdf
**November 18, 2007-This link- http://www.tribune-democrat.com/homepage/local_story_314225101.html?keyword=leadpicturestory is an excellent story about people who do not want a trail through their property, and how these people are fighting the local green group who is pushing for the trail.
**October 27, 2007-A NARPO member sent me an article from the Omaha World Herald dated 10/11/2007 which describes how Crawford County, Iowa had to pay a stupid biker $350,000 because the biker couldn’t avoid a bump in one of the county’s roads and injured himself. Now the County has banned all bike traffic on its roads, especially an annual bike ride put on by some newspaper. And people wonder why most folks despise bikers!
**October 15, 2007-The following URL is a letter from U.S. Secretary of Transportation Mary Peters to the Rails To Trails Conservancy concerning Mary’s previous national statement that bike trails use up too much of the federal gas tax. This all came about because of the uproar that there was not enough money to fix the bad bridges like the one that collapsed in Minnesota. Now if we can only convince Congress to quit wasting the 10 percent of the federal gas tax on bike trails! Don’t hold your breath! http://support.railstotrails.org/site/DocServer/peters_response.pdf?docID=241&JServSessionIdr009=n019h7qv03.app6a
**September 1, 2007- This is a quote by the U.S. Department of Transportation (DOT) Secretary Mary Peters. She told the media that 10 percents of federal gas tax is being spent on bike trails. She is 100 percent correct as the Transportation Enhancement Fund is mostly spent on bike trails, and the Enhancement Fund is 10 percent of the federal gas tax.
Quote there's about probably some 10 percent to 20 percent of the current [transportation] spending that is going to projects that really are not transportation, directly transportation-related like bike paths or trails. End Quote U.S. Department of Transportation Secretary Mary Peters, Newshour with Jim Lehrer, Aug. 15, 2007
This exchange between Jim Lehrer and Mary Peters came about because some in Congress want to increase the gas tax to pay for bad bridges like the one in Minneapolis that fell down. Mary Peters want to take the 10 percent Enhancement funds and pay for the bridges. What a novel Idea!!!
**August 21, 2007-A story about bike trail serial murderer. http://www.foxnews.com/printer_friendly_story/0,3566,293272,00.html
**March 1, 2007-The Surface Transportation Board (STB) which regulates railroads and trail use has moved and their phones numbers have all changed. The new main number is 202-245-0245. The STB General Counsel is 202-245-0262. Other STB phone numbers can be found on the STB web site: http://www.stb.dot.gov This page has all the phone numbers http://www.stb.dot.gov/stb/docs/KeyContacts_4-23-07.pdf The new address for the STB is 395 E Street, Washington, DC 20423.
**March 12, 2007-Click on the following link to see a case from the federal appeals court from Virginia where the court ruled that a property owner can sue for a Fourth Amendment violation of search and seizure when a city allowed people to trespass on private property for trail use. This is another tactic we can use to get control of our property rights. http://pacer.ca4.uscourts.gov/opinion.pdf/052344.P.pdf
**November 4, 2006-Bicyclists are always painted as such nice folks. See this NY Times articles for another view. http://www.nytimes.com/2006/12/29/opinion/29fri2.html?_r=1&th&emc=th&oref=slogin
**October 24, 2006-This story is by a bicycle group about the benefits of riding on roads versus trails. http://www.bicyclinglife.com/EffectiveAdvocacy/TheRoadsWeHave.htm
**October 15, 2006-This is an article about how trail users are not the eco-friendly they make themselves out to be. http://www.washingtonpost.com/wp-dyn/content/article/2006/10/13/AR2006101301285.html?referrer=emailarticle
**September 11, 2006--Another trail crime that came to our attention.
**August 24, 2006-See this link http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081701613_3.html
to see how crowded some trails are and how dangerous they can be to life!
July 12, 2006- A further story on the trail killings above. Read through the article and notice near the end where they say you shouldn’t travel alone on trails. If these trails are so great and safe, why is it necessary to travel in a crowd to be safe? http://archives.seattletimes.nwsource.com/cgi-bin/texis.cgi/web/vortex/display?slug=forestcrime13m&date=20060713&query=Forest+Killings
**February 13, 2006--Here is a great federal site for finding copies of the land patent the government issued for your property. Click here and click on the upper tab “Search Documents”. Then type in your state, county, section, township and range, and it spits out all the patents for that section of land. You can either get copies directly from the site or order them from the site. This is great info for those trying to prove they own the underlying title to the right of way especially if you are in the west and have government grant rights of way in the area.
**January 1, 2006--An article about how the bike folks were pushing for a bad trail. Click here
**September 21, 2005--Here is a short letter to the editor concerning trails and hurricane Katrina and spending. Click here
**7/20/2005 The link below is the testimony to Congress of Chuck Cushman executive director of the American Land Rights Association, he has wonderful examples of trails gone amok because of the National Trails Act. As he points out about how trails mutate, first the trail advocates claim that only the "willing" landowners will be expected to host a trail. Then the trail folks get impatient, which is quickly followed by eminent domain. They and their government agencies have all the power, while lonely landowners are left to fend for themselves. here
**4/4/05 Another very good court decision just came down for property owners on government grant rights of way. A very definitive decision by the U.S. Court of Appeals for the Federal Circuit says that property owners owning land abutting railroad rights of way where the right of way was granted to a railroad by the government, the right of way belongs to the abutting property owner. And if a rail trail has been put on the right of way after railroad abandonment, then the abutting property owner is due just compensation. This case is cited as: Hash v. U.S. 403 F.3d 1308 (2005). If any property owner fits into this category, then they can use this decision to get their just compensation for having a trail through their property. You might want to call either John Groen in the western states at 425-453-6206 or Nels Ackerson in Washington, D.C., at 202-833-8833.
**1/15/05 To see a good form letter for a Freedom of Information Act (FOIA) request click here. This form letter is geared toward a request to a federal agency, but it can be adopted for a FOIA request from any government entity. Any time you are involved with a controversy with a government entity, you need to know what they have been doing and what their plans are. The best way to get to see their files is with a FOIA request. Best of all, if the entity denies your request or doesn’t answer in the proper time, you are entitled to daily damages and attorney fees. This form letter came from the Property Rights Foundation of America, http://www.prfamerica.org
**8/7/04 Here is an article about Union Pacific Railroad taking improper tax deductions for railroad rights of way going to trails from the New York Times. You will have to sign in with the New York Times to see the article. Click here then register with email and password.
**7/20/04 A New Property Value Study by the City of Portland, OR., that shows owning land near or next to a trail or park devalues your property
The City of Portland, OR. paid for this study to see if their regulations and spending were worthwhile from a fiscal standpoint. Living next to a trail was worse than living next to a cemetery for devaluation of your property’s worth. Anyone living next to one of these trails already knew this fact, but it took a distinguished college professor to do an in-depth study to show how trails devalue property next to or near a trail (or cemetery). NARPO’s property value study (which is listed near the top of this web page) from 1977 through 2013 showed the same result. Contact NARPO for a copy of this study as the City of Portland deleted it from their web site when they figured out it was detrimental to their issues. NARPO has a copy of this study by emailing to firstname.lastname@example.org
study on the false economic assumptions of trails--Download here
and show it to your local governments who are trying to push through a trail
and justify the trail by its economics. This file is in .pdf format and
Adobe Acrobat Reader is necessary to read the study. You can download a copy
of Adobe Acrobat Reader here
**June 1, 2003, Two California property owners get $360,000 rails to trails settlement from Federal government--The federal government paid $360,000 to two California property owners for a 600 foot piece of property taken by a rails to trails project. Pretty pricey trail at 600 dollars a foot; of course paid for by unknowing U.S. taxpayers. See the court results in the U.S. Court of Federal Claims web site-http://www.uscfc.uscourts.gov/. As of June 9, the two cases were not posted on the web site. They are Case No. 00-508 L and No. 01-107 L. The Court of Claims phone number is: 202-219-9657
**3/10/03 Great win for Mass., property owners--The Mass., Supreme Court ruled that the railroad did not own fee title to the right of way, and the land belonged to the abutting property owners. For the text of the Court decision click here
following is courtesy of Mountain States Legal Foundation of Denver, CO.
On May 22, 2002, the U.S.Court of Federal Claims ordered
the United States to pay J. Paul and Patricia Preseault of
Burlington, Vermont for the unconstitutional taking of
their property, that is, without paying for it. The United
States was ordered to pay: $234,000, plus interest from the
February 5, 1986 date of the taking, for a total of
$551,931.30; and $894,855.60 in attorneys' fees. The United
States will be writing a check for $1,446,786.90!
National Archives located in College Park, Maryland has all the original
railroad right-of-way identification maps the railroads were required to file in
1913. These maps, sometimes called Plat or Evaluation maps, show how
every railroad in America acquired their rights-of-way. The maps list who
the railroads acquired the land from, the type of conveyance of the
deed, and where the deed copy is stored in county records across the country.
The National Archive's phone number is: 301-713-7250. The maps are
stored in Record Group 134 in the civil reference branch. Mr. Dave
Pfieffer and Joe Schwatz are the most knowledgeable about the maps
although age and retirement may have caught up to these gentlemen.
The maps are five feet by three feet and usually cover one or more
sections of land. You will need to know what railroad was using the land
in 1913 and what section township and range your property is located. There are
thousands of maps in the National Archive's possession. There is an index of
the maps which narrows down the search so it only takes a few minutes to find
the correct map. The College Park campus can be reached from the Washington,
DC., office via a bus from the DC National Archives office. Security is very
tight at the College Park campus so be prepared to be fingerprinted. The index legends, or land acquisition records are held at the College Park Facility within the Textual Records Division. Archivist – Cartographic Section
National Archives and Records Administration
(P) 301-837-2036 (F) 301-837-3622 email@example.com ( Map Citation Requests )
is a very good law review article and can be seen by searching law review
The official citation is: Emily Drumm, Addressing the Flaws of the
Rails-to-Trails Act, 8 KAN. J.L.PUB.POL'Y 158 (1999). The publication is available in most law school libraries and on WestLaw and Lexis or Google it.
CONGRESSIONAL TESTIMONY ON RAILS TO TRAILS ISSUES
Due to ongoing virus problems, NARPO will not open any e-mail unless the subject line contains any of the following words: rail trail, trails, or property rights. You can leave me a message by e-mail at mailto: firstname.lastname@example.org