NATIONAL WILDLIFE FEDERATION, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Intervenor. Victoria BERES, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 86-1317, 86-1389.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 6, 1987. Decided June 10, 1988.
850 F.2d 694 | 271 U.S.App.D.C. 1 | 56 USLW 2723 | 18 Envtl. L. Rep. 21,035
Daryl A. Deutsch, Bellevue, Wash., was on the brief for petitioner Victoria Beres.
Evelyn G. Kitay, Atty., I.C.C., with whom Catherine G. O‘Sullivan, Donald S. Clark, Attys., Dept. of Justice, Robert S. Burk, General Counsel, and Ellen D. Hanson, Associate General Counsel, I.C.C., Washington, D.C., were on the joint brief, for respondents. Laura Heiser, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondent U.S.
John B. Norton, Washington, D.C., was on the brief for intervenor Association of American Railroads.
Daniel William Wyckoff, Asst. Atty. Gen. for the State of Wash., Olympia, Wash., was on the brief for amici curiae States of Wash., La., and Fla.
Before EDWARDS, STARR and D.H. GINSBURG, Circuit Judges.
Opinion for the Court by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
1. These consolidated cases seek review of the Interstate Commerce Commission‘s final rules implementing
2. We conclude that the Commission was not unreasonable in deciding to read Sec. 8(d) as authorizing only voluntary transfers of rights-of-way, and we therefore deny NWF‘s petition for review. We disagree, however, with the Commission‘s conclusion that the application of its rules may never constitute a taking of the reversionary interests of property owners whose land is subject to a railroad right-of-way. We therefore grant Ms. Beres‘s petition in part and remand the case so that the Commission can reconsider its rules in light of their possible effect upon the interests of reversionary owners.
3. Congress enacted the Trails Act in 1968 in order to establish a nationwide system of nature trails.
4. As originally enacted, the Trails Act made no specific provision for the conversion of abandoned railroad rights-of-way to trails.2 Congress‘s first effort to encourage this type of adaptive re-use appeared in
5. Congress renewed its effort to promote the conversion of railroad rights-of-way to trail use when it enacted the current Sec. 8(d) as part of the 1983 Trails Act Amendments. See
6. 1. The Secretary of Transportation, the Chairman of the Interstate Commerce Commission, and the Secretary of the Interior, in administering the Railroad Revitalization and Regulatory Reform Act of 1976, shall encourage state and local agencies and private interests to establish appropriate trails using the provisions of such programs.
7. 2. Consistent with the purposes of that Act, and in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with the National Trails System Act, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.
8. 3. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this Act, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.
10. The Commission‘s final regulation rejected the mandatory interpretation and concluded that Sec. 8(d) contemplates only voluntary arrangements between railroads and would-be trail operators. See Rail Abandonments--Use of Rights-of-Way as Trails, 2 I.C.C. 2d 591 (1986) (hereinafter “Trails Act Rules” or “Rules“). In reaching this result, the Commission emphasized that a railroad right-of-way is private property that is entitled to protection under the fifth amendment and must be acquired for public use through condemnation proceedings. The Commission observed that Sec. 8(d) contains neither an express delegation of condemnation power to the Commission, nor terms implying that such a delegation was intended, nor any procedures governing the conduct of condemnation proceedings. Id. at 597. (Nor does the legislative history provide any indication that Congress intended to delegate a condemnation power in Sec. 8(d).) The Commission also noted that the mandatory rule it initially proposed was not necessary to carry out the primary purpose of Sec. 8(d), namely, to prevent railroad rights-of-way operated under easements from reverting to their grantors when they are abandoned by the railroads, an event that would effectively preclude their conversion to recreational use. Id.
11. In keeping with its interpretation of the Trails Act, the Commission adopted specific procedures designed to encourage the negotiation of voluntary trail use agreements. While the details of these procedures vary depending upon the type of abandonment, the Rules generally require notice to potential trail operators and, if the railroad indicates a willingness to consider such use, time to negotiate an agreement. If such an agreement is concluded with a qualified trail operator, the railroad will be allowed to discontinue current service while retaining the right to resume rail operations on the line in the future. In the interim, the right-of-way may be used as a trail as long as the trail operator continues to assume responsibility for the property.5
12. The Commission‘s decision acknowledged that the operation of its Rules might serve to defeat the reversionary interests of adjacent landowners; indeed, it interpreted this as the “main purpose” of Sec. 8(d) of the Act. See id. Nonetheless, the Commission rejected Ms. Beres‘s claim that her reversionary interest was “property” that would be “taken” through such ICC-sponsored interim trail use. The Commission reasoned that “[s]ince the amendment provides that interim trail use under section [8(d)] shall not constitute abandonment of rights-of-way for railroad purposes, the railroad easement continues and reversionary interests do not mature.” Id. at 600.
13. NWF and Ms. Beres then filed separate petitions for review, which were consolidated here. We have jurisdiction over the petitions by virtue of
15. We consider first petitioner NWF‘s claim that Sec. 8(d) requires the Commission to transfer rights-of-way to qualified trail operators even when the railroad opposes such use. In reviewing the agency‘s interpretation of this statute, we must determine whether “Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). If Congress‘s intent is clear, then any inconsistent regulation must be set aside. If the statute is silent or ambiguous, however, “the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843.6
16. We begin our analysis with the language of the third sentence of Sec. 8(d), set out above. NWF contends that the use of the word “shall” in that sentence demonstrates that Congress intended to make the transfer of a right-of-way to a qualified operator mandatory. The word “shall” in that section presumably requires that the Commission act according to its terms. More specifically, the sentence requires that, under certain specified conditions, the Commission “shall not permit abandonment or discontinuance inconsistent or disruptive of” interim trail use. One undisputed condition is that a state or local government or a qualified private trail operator agree to “assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way.” (Emphasis added).
17. NWF argues that once these specified responsibilities are assumed, the Commission must provide for interim trail use regardless of the railroad‘s wishes. As the Commission notes, however, the use of the phrase “such transfer or use,” when read in light of the previous sentence, suggests that the third sentence becomes operative only when the trail proponent has already obtained the right to interim use of the right-of-way “pursuant to donation, transfer, lease, sale or otherwise in a manner consistent with [the Trails Act].” The Commission argues further that, as each of these terms implies a voluntary conveyance, the third sentence of Sec. 8(d) means nothing more than that the ICC must give a certificate for interim trail use when a voluntary agreement for such use has been reached between a railroad and a qualified trail operator.
18. We agree with NWF that two of these terms, namely “transfer” and the catch-all “otherwise in a manner consistent with [the Trails Act]” might well be read to comprehend a mandatory conveyance; if forced conveyances were elsewhere authorized, these terms would be broad enough to include such transfers within their scope. There is no other source of authority to require transfers of rights-of-way, however, and nothing in the Act requires the Commission to interpret those terms as implicit grants of such authority.7 Thus, while the Act clearly requires the Commission to allow for trail use in cases of voluntary agreement, it is far from unambiguous in commanding the Commission to force such a use upon an unwilling railroad.
19. The conspicuous absence in Sec. 8(d) of any explicit condemnation power further supports the Commission‘s interpretation of the statute. There can be little doubt that the Commission was correct in concluding that the mandatory reading advocated by NWF would require the Commission to exercise such power, at least in cases where the railroad owned the right-of-way in fee.8 The language of Sec. 8(d), however, not only does not authorize the Commission to “condemn” or to “take” railroad property, it does not specify any procedures to be used in appropriating such property and provides no guarantee of just compensation. In this respect, Sec. 8(d) is in marked contrast to
21. NWF suggests two extrinsic reasons for setting aside the Commission‘s reading of Sec. 8(d) as unreasonable. First, NWF argues that, so interpreted, Sec. 8(d) is “purely repetitive of pre-existing law,” namely,
Section 10906 has no rail banking provision that would preempt state laws that could otherwise result in reversion of rights-of-way to abutting landowners upon a cessation of rail service. Thus, if part or all of a particular right-of-way is held under such an easement or reversionary interest, the trail developer would need to invoke Section [8(d)] to prevent reversion of easement property and maintain the integrity of the transportation corridor.... On the other hand, as the Commission explained [in the Rules], Section 10906 may be more desirable to the trail developer than Section [8(d)] if the railroad owns the right-of-way, because it could purchase the property outright and avoid the risk of losing the right-of-way to restored rail service.
ICC Brief at 28-29.
24. Second, NWF contends that, as interpreted by the Commission, the third sentence of Sec. 8(d) is “not only superfluous but irrational” because there would be no need to allocate responsibilities between the railroad and the trail operator by law, if all trail use agreements are to be voluntary. NWF Brief at 26-27. The Commission concluded that the management, tax, and liability provisions in the third sentence of Sec. 8(d) were intended as “incentives for railroads to consider interim trail use proposals.” 2 I.C.C.2d at 598. We do not agree that this reading of the statute “makes absolutely no sense.” NWF Reply Brief at 9. In order to encourage interim conversions of rails to trails, Congress had to meet not only the problem of reversions upon abandonment but also the problem that a railroad may have little to gain from facilitating interim use of its right-of-way as a trail. Its incentive to do so is a function of the probability that it will want to resume rail service over the right-of-way at some later date, a possibility that will be preserved if trail use can prevent abandonment. Congress might reasonably conclude that in marginal cases a railroad will be more willing to deal with a would-be trail operator if it is assured in advance that the negotiating costs of reaching an agreement will be low because key terms have been specified by law and agreed to in advance by the other party.
III. DO THE TRAILS ACT RULES RESULT IN A “TAKING” OF THE REVERSIONARY INTERESTS?
28. The Beres petition raises a constitutional challenge to the Trails Act Rules. Beres is the owner of waterfront property located in the State of Washington. Along the waterfront, between her home and the water, runs a railroad right-of-way 200 feet wide. According to Beres, this right-of-way is an easement for railroad purposes only and, under Washington law, it will revert to her in the event that railroad operations cease. She argues that the Trails Act Rules, by permitting a trail operator to take possession of the right-of-way upon termination of rail service, authorize a “taking” of her property without just compensation.12 See
29. The Beres challenge to the Trails Act Rules requires a brief examination of the property rights of those who own reversionary interests in railroad rights-of-way. Existing rights-of-way were created by voluntary conveyance or through condemnation proceedings. See Schnabel v. County of DuPage, 101 Ill.App.3d 553, 57 Ill.Dec. 121, 428 N.E.2d 671, 676 (1981). Some of these rights-of-way consist of fee simple interests that may be transferred or used by the railroad for non-railroad purposes once the Commission authorizes abandonment of rail service; these rights-of-way are not affected by the takings clause aspect of this case. Other rights-of-way are specifically limited to railroad use and may revert to the original owner (or a successor in interest) if railroad use is discontinued. While these more limited interests, which do implicate the takings clause, take a variety of forms, the two most common types are the fee simple determinable and the easement. If the right-of-way is a fee simple determinable, title to the underlying land vests in the railroad and the grantor (or successor) retains only a reversionary interest (known as a “possibility of reverter“). See, e.g., Oregon Dep‘t of Transp. v. Tolke, 36 Or.App. 751, 586 P.2d 791, 795-96 (1978). If the right-of-way is an easement, the owner of the servient tenement retains title to the underlying land and may be entitled to use the right-of-way in any manner that does not interfere with the railroad‘s use. See, e.g., Veach v. Culp, 92 Wash.2d 570, 599 P.2d 526, 527-28 (1979).13
31. These state laws operate subject to the ICC‘s plenary authority to regulate railroad abandonments. See Chicago & North Western Transp. Co. v. Kalo Brick & Title Co., 450 U.S. 311, 320 (1981). Absent a valid certificate of abandonment from the ICC, a state may not require a railroad to cease operations over a right-of-way. New Orleans Terminal Co. v. Spencer, 366 F.2d 160 (5th Cir.1966). Nor may state law cause a reverter of a right-of-way prior to an ICC-approved abandonment. Louisiana & Arkansas Ry. v. Bickham, 602 F.Supp. 383 (M.D.La.1985), aff‘d 775 F.2d 300 (5th Cir.1985). Instead, it is only after an unconditioned certificate has been issued that a right-of-way may be transferred or extinguished under state law. State of Vermont and Vermont Ry. Inc.--Discontinuance of Service Exemption--In Chittenden County Vt., 3 I.C.C. 2d 903 (1987); see Hayfield Northern R.R. Co. v. Chicago & North Western Transp. Co., 467 U.S. 622, 633 (1984).
32. With this background in mind, we return to petitioner Beres‘s contention that the Trails Act Rules authorize a “taking” of her reversionary interest without compensation. Recall that under the Rules the Commission will not issue an effective abandonment certificate when the carrier and a qualified trail user have entered into a voluntary trail use agreement. Instead, the Commission will issue a Certificate of Interim Trail Use that allows the railroad to discontinue service without causing its right-of-way to lapse under state law.
33. Before the Commission, Beres argued that application of the Rules to the right-of-way on her property would deprive her of her reversionary interest under Washington law. The Commission noted this objection but rejected it on the following ground: “[s]ince the [amendment] provides that interim trail use under section [8(d)] shall not constitute abandonment of rights-of-way for railroad purposes, the railroad easement continues and reversionary interests do not mature.” 2 I.C.C.2d at 600. This response may accurately describe the effect of Sec. 8(d), but it does not resolve the question posed by petitioner Beres, namely, whether the postponement of a reversionary interest that would otherwise vest under state law constitutes a taking of private property for which just compensation must be made.
34. The Commission here advances two reasons why this question should be answered in the negative. First, although it concedes that a reversionary interest in land is “property” within the meaning of the fifth amendment, the Commission suggests that the Trail Act Rules do not authorize a taking of that property, because, “[i]n contrast to the railroad, which has a vested (i.e., present) right to dispose of its interest in the right-of-way ..., the holder of a reversionary interest has nothing more than a future interest which might never mature and which is simply postponed in the event of a trail use arrangement.” ICC Brief at 40 (emphasis in original). Leaving to the margin the error in the unqualified predicate for this argument,15 we notice that the Commission cites no authority for the proposition that government action that precludes the vesting of a reversionary interest does not constitute a taking of property. The purported proposition of law is manifestly contrary to the underlying economics--analogous to saying that a lessor‘s interest in his property has not been “taken” when the term of a fully paid leasehold is extended indefinitely. It is therefore not surprising that a number of sources suggest it is unsound, particularly when the event that will trigger the reversion of the interest is imminent at the time of the appropriation. See Lawson v. State of Washington, 107 Wash.2d 444, 730 P.2d 1308, 1315-16 (1986); 2 J. SACKMAN, NICHOLS ON EMINENT DOMAIN Sec. 5.05 (Rev. 3d ed. 1985) (and cases cited therein); L. SIMES, LAW OF FUTURE INTERESTS 118-19 (2d ed. 1966); L. SIMES & A. SMITH, THE LAW OF FUTURE INTERESTS Sec. 136 (2d ed. 1956); 1 RESTATEMENT OF LAW OF PROPERTY Sec. 53 comment C (1936). Nor does the Commission offer support for its suggestion that the reversionary interests are not taken merely because they are postponed indefinitely rather than terminated outright. This proposition is similarly problematic; as the Supreme Court recently reminded, “Nothing in the Just Compensation Clause suggests that ‘takings’ must be permanent and irrevocable.” First Lutheran Church of Glendale v. County of Los Angeles, 107 S.Ct. 2378, 2388 (1987) (quoting San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 657 (1981) (Brennan, J., dissenting)).
36. It is appropriate for the Commission to resolve this entirely separate “takings” question in the first instance, free of the error that caused it prematurely to truncate its analysis in the proceeding below. In order to do this, the Commission must consider the effects of the Trails Act Rules on the property rights of variously situated reversionary owners, rather than deny that such effects are legally cognizable.16 The Supreme Court has “generally ‘been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.’ ” Kaiser Aetna, 444 U.S. at 175 (citation omitted). Its decisions do indicate, however, several factors, including “the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government‘s action” that are of particular significance. Id. With respect to the last-mentioned factor, the Court has uniformly found that government action that causes a permanent physical occupation of real property amounts to a taking “without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35 (1982). Accord Kaiser Aetna, 444 U.S. at 180 (“the ‘right to exclude,’ so universally held to be a fundamental element of the property right, falls within the category of interests that the Government cannot take without compensation.“). Most recently, the Court has determined that a permanent physical occupation occurs “where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” See Nollan v. California Coastal Comm‘n, 107 S.Ct. 3141, 3145 (1987).
38. The Commission, with the support of NWF, seeks to sidestep this cumbersome inquiry into the effect of its Rules on the property rights of reversionary owners by stressing that the Rules serve an important rail regulatory purpose, namely, the preservation of rail transportation corridors for future rail use. They argue that this “rail banking” purpose distinguishes the Rules from a similar Washington state statute, recently invalidated by the Washington Supreme Court in Lawson v. State of Washington, that simply authorized a transfer of railroad rights-of-way to public, including trail, use without providing for any resumption of rail service in the future.
39. Quite apart from the Rules, however, Congress specifically identified rail banking as a goal in the text of Sec. 8(d).18 Moreover, and contrary to Beres‘s suggestion, there is at least some experience showing that a railroad that enters into an agreement for interim trail use may in fact intend to resume service in the foreseeable future. In Chicago & North Western Transp. Co.--Abandonment Exemption--Guthrie and Dallas Counties, IA, ICC No. AB-1 (Sub. No. 192X) (served May 20, 1987), for example, the Commission authorized interim trail use on a right-of-way that was adjacent to the site of a proposed coal-fired power station, reasonably projecting that if the power station were built, rail service would be reactivated in order to haul coal. We therefore decline to find that rail banking is necessarily a “fiction.”
40. The Trails Act Rules do not, however, require any finding that resumption of rail service along a particular right-of-way is likely or even possible before authorizing conversion to trail use in derogation of the reversionary owner‘s expectancy. Nor do they provide for any procedure whereby the reversionary owner could challenge such a finding. Instead, the Commission‘s rules rely entirely upon the carrier and the trail group to determine whether a right-of-way will be converted to trail use; so long as the railroad and the qualified trail operator agree, the Rules seem to contemplate trail use for an indefinite period of time, regardless of whether there is any realistic possibility that rail service will be resumed.
A carrier cannot be compelled to carry on even a branch of business at a loss, much less the whole business of carriage.... If the plaintiff be taken to have granted to the public an interest in the use of the railroad, it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss.
43. See also Bullock v. Railroad Comm‘n of Florida, 254 U.S. 513, 520-21 (1921). To be sure, the rule of Brooks-Scanlon has been qualified in later cases holding that a railroad‘s common carrier obligation may continue, even as to an unprofitable line, until the Commission has authorized its abandonment, without effecting a taking. See, e.g., New Haven Inclusion Cases, 399 U.S. 392, 491-92 (1970) (abandonment delayed seven years during liquidation proceedings).
44. Moreover, in Lehigh & New England Ry. v. ICC, 540 F.2d 71 (3d Cir.1976), the court rejected a takings clause challenge to an ICC order under Sec. 1(16)(b) of the Interstate Commerce Act, which authorized the ICC, in certain circumstances, to direct a carrier to operate temporarily over the lines of another carrier that is unable or unwilling to provide essential rail service. The order in question provided that the directed carrier would pay no rent to the carrier that owned the track except in the unlikely event that the directed service proved to be profitable. Although the statute authorized such an arrangement for a maximum of 60 days or, if extended by the ICC for cause, an additional 180 days, the court found the taking claim “a close and difficult question.” Id. at 82. Ultimately the court was persuaded that since a comparable postponement in the carrier‘s right to abandon would not be a taking, neither should be placing another carrier on the line for the same brief period. The court reasoned that “a railroad or its estate may be made to suffer interim reasonable losses, without compensation, for a reasonable period of time during which solutions accommodating the public and private interests can be devised.” Id. at 83; accord Gibbons v. United States, 660 F.2d 1227, 1236-38 (7th Cir.1981).20
45. None of these sources, however, supports the proposition that the owner of a right-of-way may be deprived indefinitely of the use of her property without compensation therefor. On the contrary, in each of the cases cited by the parties, a temporary imposition upon the property rights of a carrier was necessary in order to ensure the continuation of existing rail service. And in each case the temporary nature of the imposition was essential to put it on the regulation side of the narrow line separating reasonable regulations from compensable takings. We are unable, therefore, to conclude that existing precedent provides that the rights of those who have an interest in railroad property may be frustrated indefinitely in order to preserve the possibility, however slight, that rail service may be resumed in the future.
IV. CONCLUSION
46. In conclusion, we find the Commission‘s analysis of the takings issue raised by Ms. Beres insufficient to support its conclusion that the application of the Rules will never require compensation of reversionary owners. Moreover, in view of the Commission‘s decision to construe Sec. 8(d) so as to prevent the condemnation of railroad property, we are reluctant to assume that the Commission‘s interpretation of the amended Trails Act was not affected by its analysis of the takings clause issue. A remand for further consideration is therefore in order. In determining whether the current Trails Act Rules may result in a taking of private property, the Commission should give special attention to situations where the right-of-way is strictly limited to railroad use and the restoration of rail service in the future is not foreseeable. In the event that the Commission concludes that a takings problem may result, it should also consider whether any modification of the Rules is appropriate and whether special procedures should be devised to facilitate the presentation of a property owner‘s claim for compensation.
Notes
If the Commission finds that the rail properties proposed to be abandoned are suitable for public purposes, the properties may be sold, leased, exchanged, or otherwise disposed of only under conditions provided in the order of the Commission. The conditions may include a prohibition on any such disposal for a period of not more than 180 days after the effective date of the order, unless the properties have first been offered, on reasonable terms, for sale for public purposes.
In Chicago and North Western Transp. Co.--Abandonment, 363 I.C.C. 975 (1981), the Commission determined that this statute did not authorize it to compel the transfer of railroad property for public use.Section 208 amends section 8 of the Act to encourage the development of additional trails in conjunction with the provisions of the [4-R Act]. This reflects the concern that previous congressional efforts have not been successful in establishing a process through which railroad rights-of-way which are not immediately necessary for active service can be utilized for trail purposes. This appears to be true despite the fact that these efforts have also been to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use.
The key finding of this amendment is that interim use of a railroad right-of-way for trail use, when the route itself remains intact for future railroad purposes, shall not constitute an abandonment of such rights-of-way for railroad purposes. This finding alone should eliminate many of the problems with this program. The concept of attempting to establish trails only after the formal abandonment of a railroad right-of-way is self-defeating; once a right-of-way is abandoned for railroad purposes there may be nothing left for trail use. This amendment would ensure that potential interim trail use will be considered prior to abandonment. If interim use of an established right-of-way consistent with the National Trails System Act is feasible, and a State, political subdivision, or qualified private organization is prepared to assume full responsibility for the management of such right-of-way, for any legal liability, and for the payment of any and all taxes that may be levied or assessed against such right-of-way--that is, to save and hold the railroad harmless from all of these duties and responsibilities--then the route will not be ordered abandoned.
This provision will protect railroad interests by providing that the right-of-way can be maintained for future railroad use even though service is discontinued and tracks removed, and by protecting the railroad interests from any liability or responsibility in the interim period. This provision will assist recreation users by providing opportunities for trail use on an interim basis where such situation exists.
Second, Beres claims that the Trails Act Rules are invalid because they appropriate property for private purposes. There can be no doubt that the purposes advanced by the Rules, namely, the establishment of interim nature trails and the long run preservation of existing railroad rights-of-way, are “public“; assuming arguendo that they constitute a taking, the participation of private organizations does not alter their public purpose, and “it is only the taking‘s purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 244 (1984).
The argument that the statutes are valid because they do not ‘eliminate’ plaintiffs’ reversionary interests strains credulity. Without the statutes, the holders of the reversionary interests would absolutely and automatically obtain possession of the easements upon railroad abandonment. Under the statutes, they would not.
Lawson, 730 P.2d at 1313.