Rail banking is a federal law that allows inactive rail corridors to be maintained as a continual corridor for interim trail use. Should rail service wish to reactivate, the corridor will have been maintained.
SHORT OVERVIEW OF RAILS-TO-TRAILS LAW
Rail corridor ownership tends to be a mixture of various types of title to land. Railroads acquired property and built transportation systems in an evolving fashion that was dependent on the attitude of the surrounding property owners, as influenced by their economic interests. The Redbank Valley rail corridor is typical of corridor titles in Western Pennsylvania. Much of the corridor consists of fee simple ownership, but significant portions are fee simple determinable (easements) or a base or conditional fee.
Under long established property law principles, abandonment of the rail purpose resulted in a reversion of the non-fee simple portions of a corridor. Easements revert to the adjacent owners. Other less than fee simple interests, such as those acquired through condemnation, revert to the successor of the original owner.
It is important to understand that abandonment of rail ownership or use is a factual question of intent and the mere abandonment of service, and even the removal of ties and rails, is not conclusive evidence of a railroad’s intent to abandon its property interest. Many people confuse this type of factual abandonment, causing a reversion, with the service abandonment which occurs before the Surface Transportation Board.
Faced with the permanent loss of significant portions of our nation’s rail corridor system, and mindful of the increased demand for recreational trails, Congress passed amendments to the National Trails Systems Act in 1983 and created the rail banking concept.
16 U.S.C.A. Sec. 1247 (d) of the National Trails System Act allowed a government entity, or a qualified organization, to request rail banking as part of the federal process that occurs when service abandonment is approved. This law declared rail banking is a type of railroad use and would not trigger reversion of non-fee simple portions of corridors, thereby preserving the corridor. That section reads in its entirety as follows:
The Secretary of Transportation, the Chairman of the Surface Transportation Board, and the Secretary of the Interior, in administering the Railroad Revitalization and Regulatory Reform Act of 1976
In 1990, Pennsylvania passed the Rails to Trails Act which recognized the power of the state to participate in rail banking at 32 PS § 5611 et seq.
DUTIES AND RIGHTS OF A QUALIFIED ORGANIZATION
By rail banking a rail corridor, the organization undertakes an affirmative duty to preserve the corridor intact. Illig v. U.S., 58 Fed. Cl. 619 (2003) states a trail sponsor must have the same control over the entire right-of-way corridor that would be held by a railroad in order that the trail sponsor can ensure that any and all uses made of the right-of-way are consistent with the restoration of rail service. Illig also finds that an easement for trail purposes carries with it a right of exclusivity of use.
A qualified organization must also make interim use “consistent with this chapter” 16 U.S. Code Sec. 1247 (d). Consistent with this chapter refers to the uses contemplated by the National Trails Act and as outlined at 16 U.S. Code Sec. 1246 (j).
The Pennsylvania Act echoes this intent by making it clear that government agencies and entities holding title to rail/trail corridors cannot create, or grant, easements or right-of-way that interfere with the recreational and preservational purposes of the Act, 32 P.S. Section 5614.
The PA Supreme Court in Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659 (2002), held that a railroad’s transfer of a railroad right-of-way to a qualified entity dedicated to preserving the right of-way under the National Act prohibits a reversion of the property to the servient land owners.
A recent case in the Court of Common Pleas in Clarion County, said:
“The United States Federal Court of Appeals addressed the requirements of Section 1247 stating, ‘[t]he Trails Act and its implementing regulations require trail sponsors to assume ‘full responsibility’ for managing the right-of-way and for any legal liability arising out of the right-of-way. As part of this responsibility, a trail sponsor must also make assurances that the right-of-way is kept available for ‘future reconstruction and reactivation for rail service.’ In order to meet these requirements, we believe the Trails Act and its implementing regulations require that a trail sponsor must have the same control over the entire right-of-way corridor that would be held by a railroad in order that the trail sponsor can ensure that any and all uses made of the right-of-way are consistent with the restoration of rail service.”