The National Assoc. of Reversionary Property Owners

Richard Welsh, Executive Director

September 13, 1996

Testimony before the Rail Subcommittee on September 18, 1996 in Washington, D.C.

Members of the Rail Subcommittee, I am Richard Welsh, the Executive Director of The National Association of Reversionary Property Owners (NARPO). We want to thank you for the opportunity to speak about this important issue. NARPO is a nationwide non-profit organization dedicated to the preservation of reversionary property rights for tens of thousands of property owners throughout the United States. We have been involved in the rails to trails issue since 1985 when the ICC started the rulemaking process for the rails to trails law. NARPO currently is working with aggrieved property owners and taxpayers in 44 states.

Because NARPO has been involved with rails to trails since the ICC rulemaking, we have a greater depth of knowledge about the property owner issues than anyone else. Regardless of the intentions of the supporters, rails to trails has become a scam.

Why do I call this a scam? What would you call a process that lets someone (trails groups) use public money to buy something (railroad rights of way) from someone (railroads) who doesn't own it; simultaneously avoiding environmental review and abrogating long established contractual property rights? What would you call a process which uses gas taxes to do this while you still drive on broken and rutted roads? The average person would call this a scam or something much worse. BUT, that is exactly what Congress did in 1983 when they passed the rails to trails law.

When Congress passed this law in 1983, it was a one paragraph section of law among hundreds of much longer sections of the National Trail System amendments. There were no specific hearings on rails to trails. It was one small paragraph jammed in among hundreds of other sections; most of which had to do with specific trail additions to the National Trails System.

The railroads originally were against rails to trails and said so in the original ICC rulemaking hearings. It didn't take the railroads long to figure out how to make a lot of money and get rid of their linear toxic waste dumps by using the rails to trails scam. Here is how it works. The railroad files for abandonment and hopes a trails group steps forth for railbanking. The railroad, who generally own less than 5% of their rights of way, then holds up the trails group by saying if they don't agree to pay the railroad its asking price, the railroad will let the right of way revert to the abutting property owners. The government then says wait a few months until we can get our ISTEA Enhancement money, and we will do the deal at your price. Nice deal for the railroads. 120 years of dumping on the right of way and a government takes it off their hands and pays them to boot. Nice deal for the railroads.

With that for background, let's see what this law has done to property owners and taxpayers in its 10 years of existence. This law has programmed over 3,100 miles of trails across 62,000 pieces of private property without paying one cent in compensation for the loss of reversionary property rights. Over 240 million dollars of federal gas tax money has been appropriated for rails to trails. This law has put over 3,100 miles of trails down without proper environmental review.

The only way property owners can fight these trails is to convince their elected officials not to build the trail. This has been successful when the property owners know somewhat in advance a trail is being proposed. Probably one of the worst aspects of this law is that private entities can put these trails in place without ever being subject to the electorate. When NARPO approached the ICC to change the rules so that property owners could be notified before a trail was built, the ICC and the trails groups adamantly opposed us. All we asked for was a simple notice in the local newspaper. The ICC and the trails group response was for the property owners to read the federal register. 99% of the population do not even know what the federal register is, much less know how to access it. Most of the property owner hostilities to rails to trails come from lack of notification. They feel their government has let them down.

Rails to trails effectively means the extinguishment of reversionary rights. The U.S. Supreme Court has said these rights can be taken, but the Court said the Constitution requires just compensation must be paid for the "taking". This fundamental Constitutional protection of just compensation and due process allows the minority to protect themselves from the overreaching of the majority. Do the railroads have to give up their rights without compensation to establish recreational trails? No, that fate is reserved only for unorganized property owners kept in the dark through a process that favors trail groups.

In 1995, NARPO proposed legislation to this subcommittee that would make the trail users pay just compensation to the reversionary property owners at the time the trail was installed. We urge you to provide for just compensation in a timely manner for these takings and not proceed any further down the slippery slope of degrading constitutional protections for property owners and taxpayers.

Believe it or not, these trails are even exempt from any NEPA review. 23 CFR 771.117 categorically excludes NEPA review on the construction of bicycle and pedestrian facilities. Even that small grain of protection for property owners and taxpayers is not available though some of these trails go through miles of wetlands and wildlife habitat. Some of these trails are over 100 miles long. Why is something of that magnitude excluded from thoughtful NEPA review? We urge you to write NEPA review into the rails to trails law.

We have a couple of enlarged photos of properties that are to subjected to these rail trails. Common sense demands that you not put a trail in places like this. While many of these trails go through farmland, many more go through residential areas just like these photos. Think about it. Would you want a trail this close to your home? BUT, these property owners have no say in the issue because the trail is built before they know what is happening. The lack of public notice in the present system leads to insufficient public discussion, no thoughtful environmental review, and to the wasteful spending of public moneys.

NARPO's Legislative Proposals
1. Provide due process notice to property owners and taxpayers affected by these trails.
2. Provide compensation to property owners at the time a trail is acquired.
3. Provide for full environmental review before a trail is acquired.

We want to thank the subcommittee for having this hearing so the many problems with rails to trails can be brought out in the open. I would be glad to answer any questions the committee members might have.
Richard Welsh, Executive Director
The National Association of Reversionary Property Owners (NARPO)
1075 Bellevue Way NE, Suite 278
Bellevue, WA 98004
(425) 646-8812