After World War II, America’s population was growing and disposable incomes were on the rise, leading to a greater demand for outdoor recreational opportunities. The idea of a national system of trails began to find its way into Federal legislative efforts as early as 1945. By the 1960s the demand for walking, hiking and bicycling trails had surpassed available opportunities (Trails for America).
President Lyndon B. Johnson expressed his support for a national system of trails to the U. S. House of Representatives in his February 8, 1965 message on “Natural Beauty.” He called for a balance of recreational trail opportunities in both urban and rural areas and noted that full use should be made of rights-of-way and other public paths. He directed the Secretary of the Interior to work with his colleagues in the Federal government as well as State and local leaders to recommend a cooperative program to encourage a national system of trails (Congressional Record, February 8, 1965, pg 2087). The Secretary of the Interior began working on this directive by requesting a study from which appropriate legislation could be drafted.
This nationwide trail study was conducted by the Bureau of Outdoor Recreation within the U.S. Department of the Interior and resulted in the 1966 publication entitled, “Trails for America” (GPO). The study examined existing and potential opportunities for national scenic trails, park and forest trails and metropolitan area trails. It also recognized that public utility rights-of-way for electric, telephone, telegraph and natural gas transmission lines and abandoned railroad corridors and even canal banks provided special opportunities for trail development. It further stated that “all Federal agencies having jurisdiction over the allocation and use of such rights-of-way should cooperate fully in the development of trails” and “State agencies having similar jurisdiction also should encourage and support development.”
The findings and recommendations of this study led to the introduction of legislation in 1966. Eventually the proposal found its final form in the National Trails System Act of 1968 (Public Law 90-543; 82 Stat 919; 16 U.S.C. 1241 et seq). This Act established a national system of recreation trails, scenic trails and connecting trails and created the standards and methods by which additional trails could be added to the system. National recreation trails were intended to provide a variety of outdoor recreation uses reasonably accessible to urban areas. National scenic trails were intended to be extended trails, providing enjoyment of nationally significant scenic, historic, natural or cultural outdoor areas. The Appalachian Trail and the Pacific Crest Trail were designated as the first national scenic trails. Connecting trails were intended to provide additional points of public access to or connections between national recreation trails or national scenic trails.
Section 8 of the Act directed the Secretary of the Interior, the Secretary of Agriculture and the Secretary of Housing and Urban Development to encourage State and local agencies, private interests and nonprofit organizations to establish trails in parks, forests and urban areas.
Section 9(b) of the Act acknowledged the potential for trails along roadways, utility rights-of-way and similar properties. Federal agencies having jurisdiction over use, abandonment or disposition of these were directed to cooperate with the Secretary of the Interior and the Secretary of Agriculture to ensure that suitable properties were made available for trail use.
THE RAILROAD REVITALIZATION AND REGULATORY REFORM ACT OF 1976
Railroads had developed rapidly in the 1800s to satisfy the need to move passengers and freight over long distances as the nation developed and expanded. As time passed, however, railroads began to lose market share to other forms of transportation. By the 1970s railroad activity had declined significantly and needed reform if it was to continue as a viable means of transportation. As part of this reform the Railroad Revitalization and Regulatory Reform Act of 1976 (Public Law 94-210; 90 Stat 31; 45 U.S.C. 801 et seq) was passed “to provide the means to rehabilitate and maintain the physical facilities, improve the operations and structure, and restore the financial stability of the railway system of the United States, and to promote the revitalization of such railway system, so that this mode of transportation will remain viable in the private sector of the economy and will be able to provide energy-efficient, ecologically compatible transportation services with greater efficiency, effectiveness, and economy.”
Railroads had been declining rapidly and there was concern that these abandoned rail corridors would be lost and no longer available should rail service be needed again in the future. Therefore, Section 809 of this Act called for a study to evaluate the potential for conversion of railroad rights-of-way to alternate uses where rail service had been discontinued or was likely to be discontinued. The concept of a rail bank was to be evaluated as a means to assure the availability of rights-of-way for future railroad use, particularly in areas where fossil fuel natural resources or agricultural production were located. Interim uses for these rights-of-way were also to be considered. State and local governmental entities were to be encouraged to develop recreational and conservation uses of abandoned railroad rights-of-way.
Section 809(c) amended the Interstate Commerce Act (49 U.S.C.) to require the Interstate Commerce Commission to make a further finding in cases of abandonment to determine suitability of the right-of-way for other public purposes, such as roads or highways, other forms of mass transportation, conservation, energy production or transmission, or recreation. If the property was determined to be suitable for other public purposes, disposal of the property was not to be permitted until it had first been offered for acquisition for public purposes.
AMENDMENT OF THE NATIONAL TRAILS SYSTEM ACT
Over time it became apparent that these past legislative efforts had not been successful in establishing a process by which inactive railroad corridors could be used for trail purposes. Once a railroad corridor had been abandoned, it may not be recoverable for trail use. An amendment, therefore, was needed to ensure that potential interim trail use was considered prior to abandonment of the right-of-way. In addition, some provision was needed to protect the railroad from liability during the period of interim use (House Report No. 28, 98th Congress, 1st session, 1983).
Consequently, Section 8 of the National Trails System Act (16 U.S.C. 1247) was amended in 1983 (Public Law 98-11, Section 208; 97 Stat 42). The new Section 8(d) reiterated as national policy the desire to preserve established railroad rights-of-way and to protect rail transportation corridors for future reactivation of rail service. State and local agencies and private organizations were encouraged to establish trails in existing, inactive corridors as an interim use. The interim use would not be treated as an abandonment of the right-of-way, since the right-of-way must remain available for a return to active rail service.
To relieve the railroad company of liability during the interim use, the interim use sponsor, whether a State, political subdivision or qualified private organization, had to agree to (1) assume full responsibility for the management of the right-of-way; (2) assume any legal liability; and (3) pay any and all taxes that may be levied or assessed against the right-of-way. The Interstate Commerce Commission would impose appropriate terms and conditions as a requirement of any transfer or conveyance for interim use and would not permit the right-of-way to be abandoned.
This section was further amended in 1995, when the Interstate Commerce Commission was abolished and replaced with the Surface Transportation Board (Public Law 104-88; 109 Stat 803; 16 U.S.C. 1247(d)).
THE KATY TRAIL IN MISSOURI
The Missouri-Kansas-Texas Railroad Company (MKT) operated a railroad line that traversed the State of Missouri. Right-of-way south of the Missouri River had been acquired in the 1860s and 1870s, while the section of right-of-way from the Missouri River crossing in Howard County to Machens in Saint Charles County had been acquired in the 1880s and 1890s. Much of this latter part of the route followed the bank of the Missouri River and was subject to frequent damage from flooding. In 1986 the company decided it was no longer feasible to continue operation in this area and filed an application in September with the Interstate Commerce Commission to abandon about 200 miles of right-of-way from Sedalia to Machens.
Trail proponents in Missouri recognized a golden opportunity to utilize the amended National Trails System Act to develop a long distance trail crossing the state. With financial backing from Edward D. “Ted” Jones Junior of Edward Jones financial services, the State of Missouri through the Department of Natural Resources submitted a request to the Interstate Commerce Commission (ICC) in October 1986 for a Certificate of Interim Trail Use to develop a recreational trail on the Missouri-Kansas-Texas Railroad right-of-way. The ICC approved the request and granted the Certificate of Interim Trail Use in April 1987 (ICC docket No. AB-102 (Sub-No. 13)). The interim trail use was subject to the conditions of the National Trails System Act as amended in 1983, preserving the right-of-way and forestalling abandonment.
Missouri-Kansas-Texas Railroad Company and the Missouri Department of Natural Resources then entered into an Interim Trail Use Agreement in June 1987. As salvage operations were completed in the succeeding months, conveyances of the right-of-way were executed for each county that was crossed. Construction of the trail followed shortly thereafter.
OPPOSITION AND COURT CHALLENGE
Trail enthusiasts were ecstatic, but landowners adjoining the MKT right-of-way were not so enthused. In fact, they were shocked and outraged. “You’re stealing my land! You’re stealing my land!,” they cried. Then the lawyers saw a golden opportunity and the litigation began.
These landowners argued that the right-of-way had been an easement acquired for railroad purposes only and for no other purpose. Once the railroad ceased to operate, they believed that by state law the right-of-way should revert to the present owners. In December 1986, one hundred and forty-four (144) individuals owning property along the right-of-way joined together in filing an action in state court to quiet title to the right-of-way. State court, however, was not the proper venue to challenge federal law, so the case was moved to the United States District Court of Missouri, Eastern District.
The first named plaintiffs for the case were Maurice and Dolores Glosemeyer. Defendants named in the case were the Missouri-Kansas-Texas Railroad Company (MKT), the Missouri Department of Natural Resources and its director, Frederick A. Brunner (Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108 (E. D. Mo. 1988)). There were many more parties interested in the outcome of this case, however, so the Court allowed these additional parties to intervene as defendants, including the United States of America, the Conservation Federation of Missouri, the National Wildlife Federation, the Rails to Trails Conservancy, the Lewis and Clark Nature Trail Foundation, the Sierra Club, the Paralyzed Veterans of America, BICYCLE USA, the Lewis and Clark Heritage Foundation, the American Hiking Society, the Katy Missouri River Trail Association and the American Rivers Conservation Council. The Court also allowed the American Farm Bureau Federation and the Missouri Farm Bureau Federation to file briefs in support of the plaintiffs as “friends of the court.”
The plaintiffs challenged 16 U.S.C. Section 1247(d), the Interstate Commerce Commission’s regulations applying the provisions of that section and the ICC’s order applying the section and its regulations to the MKT right-of-way. They claimed that Section 1247(d) constituted (1) an invalid exercise of the commerce clause power under Article I, Section 8 of the United States Constitution; (2) an impermissible impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution; (3) a violation of due process under the fifth and fourteenth amendments of the United States Constitution; (4) a taking of property without just compensation under the fifth amendment of the United States Constitution; and (5) a violation of various Missouri constitutional and statutory provisions. The plaintiffs, therefore, wanted the Court to declare Section 1247(d) and the ICC’s regulations and order unconstitutional. Then they wanted the Court to quiet title in each plaintiff for his respective interests in the MKT right-of-way. The Interest Groups that had been allowed to intervene as defendants filed a counterclaim, requesting that the Court declare Section 1247(d) and the ICC’s regulations and order constitutional.
In its decision, dated May 10, 1988, the District Court determined that it had jurisdiction to consider plaintiffs’ challenge to Section 1247(d), but that any challenge to the ICC’s regulations and order were the exclusive jurisdiction of the federal circuit court of appeals.
The District Court determined that plaintiffs’ assertion that Congress exceeded its power under the commerce clause by enacting Section 1247(d) was without merit.
The District Court further determined that plaintiffs’ claim of an impermissible impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution was also without merit, since the section cited pertained to state legislation and not federal legislation.
As to the plaintiffs’ claim of a due process violation under the fifth amendment of the United States Constitution, the District Court recognized that an analysis was appropriate, but that the plaintiffs failed to demonstrate that Congress had acted in an arbitrary and irrational way when it enacted Section 1247(d).
The plaintiffs’ claim that their reversionary rights to the property had been impaired by a temporary regulatory taking without just compensation was rejected by the Court, since a suit for compensation through the United States Court of Claims was available to them under the Tucker Act (28 U.S.C. Section 1491). The Court did not address the question of whether or not a taking had occurred.
The District Court further rejected plaintiffs’ argument that Section 1247(d) violated numerous state constitutional and statutory provisions, as well as, state common law, since the state laws cited were preempted by federal law.
In conclusion, the District Court rendered judgment in favor of the defendants and against the plaintiffs and further declared 16 U.S.C. Section 1247(d) constitutional.
Plaintiffs promptly appealed to the United States Court of Appeals, Eighth Circuit (Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F. 2d 316 (1989)). The Court of Appeals heard the arguments and considered the analyses of the District Court. In its decision, dated July 5, 1989, the Court of Appeals recognized the opinion of the District Court as being well-reasoned. It, therefore, affirmed the decision of the District Court. Like the District Court, the Court of Appeals did not address the question of whether or not a taking had occurred, since the pertinent question was whether or not compensation could be obtained. As the District Court had stated, a suit for compensation was available to the plaintiffs through the United States Court of Claims under the Tucker Act.
A similar case from Vermont also challenged the validity of the “rails-to-trails” provision of the amended National Trails System Act and took the argument to the United States Supreme Court (Preseault v. Interstate Commerce Commission, U.S. Reports, Volume 494, page 1, 1990). The Supreme Court decision for that case, dated February 21, 1990, stated that “the statute is a valid exercise of congressional power under the Commerce Clause” and that “even if the rails-to-trails statute gives rise to a taking, compensation is available to petitioners under the Tucker Act.” In its analysis, the Supreme Court referenced the decision of the District Court in Glosemeyer v. Missouri-Kansas-Texas R. R. Co., 685 F. Supp. 1108, 1120-1121 (ED Mo. 1988).
Having thus far failed to find satisfaction, Maurice and Dolores Glosemeyer enlisted the counsel of Mountain States Legal Foundation and took their claim to the United States Court of Federal Claims to argue for a taking without just compensation against the United States of America (Action No. 93-126L). The Court of Claims examined the primary question as to whether or not the preservation of rail corridors for future reactivation by allowing an interim use constituted a railroad purpose under Missouri law. In its opinion, filed January 14, 2000, the Court determined that it did not. The easements for railroad purposes would have been extinguished under Missouri law had they not been preempted by federal law. As a result, the Court decided that the imposition of an interim use constitutes the taking of a new easement for which compensation is required.
While the Glosemeyers eventually prevailed in their claim for compensation, it should not be presumed that all landowners adjoining railroad rights-of-way that have been converted to an interim use are eligible for compensation. These rights-of-way were acquired in many parcels, some as easements, some in fee simple and some by condemnation. Each document of conveyance must be examined on its own merits in its historical context to determine the nature of the property interest acquired by the railroad. This will then determine whether or not an adjoining landowner has any basis for a takings claim.
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original composition by Steven E. Weible
