Rail trails face another battle

A new federal court decision went against rail trail proponents and may signal new efforts to repeal railbanking.

The Preseault case in Burlington, Vermont, has been a lightning rod for much of the fight over federal railbanking legislation-that part of the National Trails System Act which allows us to preserve rail lines for trails regardless of the complexities of the ownerships and easements which form these corridors. The issue in this case is whether the conversion of a long unused railroad right-of-way to a public recreational trail subject to possible future rail reactivation ("railbanking"), constituted a taking of property. The court held that the Preseaults, owners of the property over which the railroad ran, were entitled to compensation.

We spoke with attorney Charles Montange, national expert on rail corridor preservation, about the impacts of the case:

Mr. Montange, does this decision affect the legality of railbanking?

The decision in a sense changes nothing. Section 8-D of the Trails Act is perfectly constitutional: a state or local government or private organization can railbank property. If someone has a reversionary interest which would otherwise apply when a railroad is abandoned, a postponement due to railbanking may be deemed to be a taking, and they can file with the U. S. Claims Court. If there is a taking, the U. S. will pay compensation.

What aspect of rail trails does the case affect?

The case could increase the instances in which an application of Section 8-D -or any federal regulation of rail abandonments-would be deemed to be a taking. Thus it arguably increases the exposure of the U. S. Government to damage claims that will be successful.

Will the Preseault decision affect other legislation?

While the decision changes nothing, it will probably encourage efforts to repeal Section 8-D of the Trails Act. The decision makes it more likely there will be a new attempt to eliminate railbanking provisions, probably in the course of the ISTEA reauthorization act that may be adopted next fall.

Could there be a challenge to this decision?

This is not an anti-trails decision, it's an anti-federal regulation decision. It seems to say that if there is any postponement of common law abandonment that would impact a reversionary property owner, the reversionary owner has a claim against the federal government, and that will upset a lot of what the ICC and Surface Transportation Board have been doing for about 80 years now. So there's a good chance the U. S. Justice Department will seek further review to overturn or to limit the case.

What suggestions do you have for trails activists working on projects involving railbanking?

I am advising clients to conclude their railbanking deals as quickly as possible. Section 8-D railbanking may be modified or eliminated by corridor preservation opponents in the next Congress.

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