The National Assoc. of Reversionary Property Owners


1075 Bellevue Way N.E. Suite 278
Bellevue WA 98004
(425) 646-8812 phone or fax
E-mail at: dick156@earthlink.net
Internet page at: http://home.earthlink.net/~dick156/

Richard Welsh, Executive Director

July 1, 2001

FEDERAL RAILS TO TRAILS ACT: 18 YEARS OF HELL FOR 62,000 PROPERTY OWNERS

The federal rails to trails act was passed by Congress in 1983 as Public Law 98-11 and is now codified as 16 USC 1247(d) as an amendment to the National Trails System Act of 1968. The Surface Transportation Board (STB) (ICC) promulgated the rules, 49 CFR 1152.29 et seq, in 1986. Then commenced a 15 year rein of terror on thousands of property owners throughout the United States. Tens of thousands of property owners lost considerable amounts of their property rights with one stroke of the pen by President Reagan. In the President's defense, I am sure he didn't have the foggiest idea what was in PL 98-11.

At least 59 lawsuits have been brought in federal court concerning the implementation of this law. The major suit was Preseault v. ICC, 494 US 1 (1990). The U.S. Supreme Court said that the law was constitutional but it could cause a "taking" of private property, namely the reversionary interest of the railroad easements. The Supreme Court went on to say that the property owners remedy was to go to the U.S. Court of Claims-now inaptly named the Court of Federal Claims. It is a fact that the railroads took only easements to their rights of way in over 85% of the rights of way in America. Before the rails to trails act, the rights of way reverted back to the abutting property owner. Now we have these tens of thousands of property owners in almost every state trying to get their property rights back or in the least get compensation from the federal government for the "taking" of their property. It took 11 years (July 2001) after the Preseault case was decided for Mr. Preseault to have his damage and just compensation claim settled by the Court of Federal Claims. For just 1200 feet of trail, Mr. Preseault was awarded $234,00 in damages plus more than $ 1 million for legal fees, interest and court costs. Meanwhile many property owner's cases are still pending in the Claims Court.

IS THAT JUSTICE TO WAIT ELEVEN YEARS?

IS THAT EQUITABLE FOR OUR COUNTRY'S TAXPAYING PROPERTY OWNERS?

IS THAT JUST FOR ALL UNITED STATES TAXPAYERS WHO WILL HELP FOOT THE BILL FOR THESE GREENLINE TRAILS?

What are some of the problems that have surfaced in 18 years with this scam?

DUE PROCESS The STB never notifies abutting property owners that a trail is soon to be put on their property. The trail user, which can be a government entity or even a private group, asks the STB to invoke the Trails Act. The railroad sees this as a way to dispose of linear toxic waste sites, sell property that it does not have an ownership in, dispose of the right of way in one fell swoop, and take a tax deduction on top of it all. In any other kind of government condemnation, the government entity has many hoops to jump through before it can "take" someone's' property. Not in this instance. The STB has been approached twice by The National Association of Reversionary Property Owners (NARPO) to do just rudimentary due process notifications to property owners before these properties are taken. The STB has said no, the property owners should know what is happening because they should read the federal register everyday. So much for the constitutional protection of due process.

WINDFALL FOR THE RAILROADS Believe it or not, the railroads at first opposed the Trails Act, but they have since learned what a gold mine it has turned out to be. Imagine yourself as a railroad abandoning a 200 mile right of way that is completely owned by the abutting property owners, and this right of way had 120 years of sprayed toxic herbicides, fuels, human waste, and whatever other toxic material that was hauled for 120 years and leaked or otherwise escaped from the rail cars. Normally you would have to clean up the toxic waste site and then transfer the property back to the abutting property owners. All this at great expense to you the railroad. BUT- along comes Congress with this great scheme called rails to trails. You as the railroad can now sell this linear waste site for real money and never have to clean it up. And to top it off, you take a few million dollar charitable donation tax deduction off your corporate income tax after you find a friendly appraiser to say the right of way is worth millions more than you charge some government entity. THAT IS WHAT I CALL GREAT BUSINESS SENSE.

WINDFALL FOR THE TRAIL PROPONENT You are a government entity or a private group that sees this soon to be abandoned railroad ripe for picking. You file for rails to trails use with the STB. Your only requirement to satisfy the STB is to say that you will allow it to go back to a railroad sometime in the next century if someone wants to reinstitute rail service sometime in the future. Then you start lining up all that ISTEA Enhancement money Congress is so anxious to give away as long as it isn't used to build those nasty polluting highways. You don't know what ISTEA is; that is your 28 cents per gallon federal gas tax being used for everything but highway fixing. Then you line up some more state grant money to entice the railroad to sell you this right of way that they don't own in the first place. You also mention to the railroad that you know the right of way is worth millions of dollars more, but you can give the railroad a generous tax deduction on their corporate income tax return. And you also mention that no hazardous waste inspection will have to be done as you are sure it is clean. What self-respecting American businessman could pass up such a deal?

WINDFALL #2 FOR THE TRAIL PROPONENT Now, you as the government entity or private group go out and find you a MCI or AT&T or Sprint that will pay you $25,000 per mile to lay a fiber optic cable in the right of way and also coerce them to level the right of way when they are done, and oh by the way, don't leave any of your toxic waste after you leave. What a great way for stealing property rights from those greedy landowners and converting the thievery into bureaucratic use. That should really win some status points at the next convention for trail planners. BUT!!! READ ON AND SEE HOW THE PROPERTY OWNERS ARE WINNING BACK THEIR RIGHTS. On June 26, 1997, the Indiana Supreme Court in Calumet National Bank v. AT&T, put a stop to the railroads and trails groups selling the right of way for fiber optic cable use. In this case, AT&T already has cables in the ground so they will now have to pay compensation to about 1,000 property owners unless they remove the cable. Maybe AT&T will now abide by long established property rights of abutting property owners. Time will tell. In August 2001, MCI settled a trespass suit filed by property owners that were concerned about the fiber optic cables through their property. Railroads are now cutting the property owners in on their income from the fiber optic cables laid on railroad rights of way along side property owners with reversionary rights to the rights of way. If you want a piece of this action, call the main attorney for property owners: Nels Ackerson at 202-833-8833

PROBLEMS FOR THE PROPERTY OWNERS
Vandalism
Violent crimes
Loss of property value
Loss of privacy
Invasion of property by trail users
Unsanitary behavior by trail users
Stress caused by lack of control of ones' destiny
Unable to sell property because of trail problems
Spreading of Noxious weeds by trail users (mostly farmers' problem)
Complaints about own lifestyle-hog smell--old cars
Access to property

All of the above have been documented during the last 18 years

A SOLUTION:
One suggestion to save the property rights of these 10,000's of property owners would be to amend the laws the Surface Transportation Board (STB) uses to force these inequities on property owners. NARPO requests the law be amended so compensation should come through local court jurisdiction, not the U.S. Court of Federal Claims and be paid by the trail user at the time the right of way is acquired for the trail.

This amendment would mean property owners would be able to bring their claims for the taking of their property in their own state courts and in their own counties, rather than hire attorneys in Washington, DC to sue the United States. This would also take the financial burden off the United States and put it on the backs of the government entities that are doing the "taking". It would also make the government entities more cognizant of their local citizens property rights as the local elected officials would have to explain the massive costs of the condemnations from the local fisc. As you can imagine, it is quite expensive to hire an attorney thousands of miles away to fight a case for you in the U.S. Court of Federal Claims when your claim may be only for a few thousand dollars, or then again it may be a $12 million rails to trails case such as the one in Montgomery County, Maryland which is on the northern boundary of Washington, DC.

As you can see, a great injustice has been forced upon tens of thousands of United States citizen, taxpayers. I hope you would support reversionary property rights protection in future legislation.

Richard Welsh, Executive Director--dick156@earthlink.net