return to TrailTracks Fall '96
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:
Charles Montange of Seattle is an attorney who specializes
in law concerning railroad abandonments, railbanking, and
- Mr. Montange, does this decision affect the legality of
- 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
- 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
- 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
return to TrailTracks Fall '96 index