S. Hrg. 100-631
NATIONAL TRAILS SYSTEM IMPROVEMENT ACT OF
1987 AND REVISING THE BOUNDARIES OF THE
SALEM MARITIME NATIONAL HISTORIC SITE
HEARING
BEFORE THE
SUBCOMMITTEE ON
PUBLIC LANDS, NATIONAL PABKS AND FORESTS
OF THE
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDREDTH CONGRESS
SECOND SESSION
ON
S. 1544
TO AMEND THE NATIONAL TRAILS SYSTEM ACT TO PROVIDE FOR CO-
OPERATION WITH STATE AND LOCAL GOVERNMENTS FOR THE IM-
PROVED MANAGEMENT OF CERTAIN FEDERAL LANDS, AND FOR
OTHER PURPOSES
H.R. 2652
TO REVISE THE BOUNDARIES OF SALEM MARITIME NATIONAL HISTOR-
IC SITE IN THE COMMONWEALTH OF MASSACHUSETTS, AND FOR
OTHER PURPOSES
^^
MARCH 3, 1988
GOV DOCS u ^^'.656
KF
'I
26 „ ^ .A.^iyf Printed for the use of the
.E5583 r PU^I I wlwpittee on Energy and Natural Resources
1988h
CV5 I I NJjJi-Gp^ERNMENT PRINTING OFFICE
Research
.Library
WASHINGTON : 1988
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
S. Hrg. 100-631
NATIONAL TRAILS SYSTEM IMPROVEMENT ACT OF
1987 AND REVISING THE BOUNDARIES OF THE
SALEM MARITIME NATIONAL HISTORIC SITE
HEARING
BEFORE THE
SUBCOMMITTEE ON
PUELIC LANDS, NATIONAL PAEKS AND FORESTS
OF THE
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDREDTH CONGRESS
SECOND SESSION
ON
S. 1544
TO AMEND THE NATIONAL TRAILS SYSTEM ACT TO PROVIDE FOR CO-
OPERATION WITH STATE AND LOCAL GOVERNMENTS FOR THE IM-
PROVED MANAGEMENT OF CERTAIN FEDERAL LANDS, AND FOR
OTHER PURPOSES
H.R. 2652
TO REVISE THE BOUNDARIES OF SALEM MARITIME NATIONAL HISTOR-
IC SITE IN THE COMMONWEALTH OF MASSACHUSETTS, AND FOR
OTHER PURPOSES
^*
MARCH 3, 1988
iOVDOCS^' .655
i¥
^ _^ ^ Printed for the use of the
E5583 il f Uiil I ywHpit^^^ on Energy and Natural Resources
988h
Library^
lERNMENT PRINTING OFFICE
WASHINGTON : 1988
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
Bosto?! Pf^'zz y^rary
Boston, liA 02116
COMMITTEE ON ENERGY AND NATURAL RESOURCES
J. BENNETT JOHNSTON, Louisiana, Chairman
DALE BUMPERS, Arkansas JAMES A. McCLURE, Idaho
WENDELL H. FORD, Kentucky MARK O. HATFIELD, Oregon
HOWARD M. METZENBAUM, Ohio LOWELL P. WEICKER, Jr., Connecticut
JOHN MELCHER, Montana PETE V. DOMENICI, New Mexico
BILL BRADLEY, New Jersey MALCOLM WALLOP, Wyoming
JEFF BINGAMAN, New Mexico FRANK H. MURKOWSKI, Alaska
TIMOTHY E. WIRTH, Colorado DON NICKLES, Oklahoma
WYCHE FOWLER, Jr., Georgia CHIC HECHT, Nevada
KENT CONRAD, North Dakota DANIEL J. EVANS, Washington
Daryl H. Owen, Staff Director
D. Michael Harvey, Chief Counsel
Frank M. Cushing, Staff Director for the Minority
Gary G. Ellsworth, Chief Counsel for the Minority
Subcommittee on Public Lands, National Parks and Forests
DALE BUMPERS, Arkansas, Chairman
JEFF BINGAMAN, New Mexico, Vice Chairman
JOHN MELCHER, Montana MALCOLM WALLOP, Wyoming
BILL BRADLEY, New Jersey LOWELL P. WEICKER, Jr., Connecticut
TIMOTHY E. WIRTH, Colorado MARK O. HATFIELD, Oregon
WYCHE FOWLER, Jr., Georgia PETE V. DOMENICI, New Mexico
KENT CONRAD, North Dakota FRANK H. MURKOWSKI, Alaska
CHIC HECHT, Nevada
J. Bennett Johnston and James A. McClure are Ex Officio Members of the Subcommittee
Thomas B. Wiluams, Senior Professional Staff Member
Euzabeth J. NoRCROSS, Professional Staff Member
(II)
%
/.^■■^
>
%
f fUj t
CONTENTS
Page
S. 1544 3
H.R. 2652 10
STATEMENTS
Burwell, David G., president, Rails-to-Trails Conservancy 85
Byron, Hon. Beverly B., U.S. Representative from Maryland 48
Crandall, Derrick A., president, American Recreation Coalition 76
Henley, Susan A., executive director, American Hiking Society 101
Kennedy, Hon. Edward M., U.S. Senator from Massachusetts 38
Kerry, Hon. John F., U.S. Senator from Massachusetts 39
Krause, Richard L., assistant counsel, American Farm Bureau Federation,
Park Ridge, IL 127
McCray, Paul, Northern Virginia Regional Park Authority, Fairfax, VA 67
McKee, Steven M., director, Gorman Nature Center, Mansfield, OH 71
Metzenbaum, Hon. Howard M., U.S. Senator from Ohio 1
Mott, William Penn, Jr., Director, National Park Service, Department of the
Interior on:
S. 1544 12
H.R. 2652 33
Northrop, Stuart J., chairman. Executive Committee, Huffy Corp., Dayton,
OH 81
Robertson, F. Dale, Chief, Forest Service, U.S. Department of Agriculture 43
Welsh, Richard, executive director, National Association of Reversionary
Property Owners, Issaquah, WA 109
APPENDIX
Additional material submitted for the record 133
(III)
NATIONAL TRAILS SYSTEM IMPROVEMENT ACT
OF 1987 AND REVISING THE BOUNDARIES OF
THE SALEM MARITIME NATIONAL HISTORIC
SITE
THURSDAY, MARCH 3, 1988
U.S. Senate,
Subcommittee on Public Lands,
National Parks and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:12 p.m., in room
SD-366, Dirksen Senate Office Building, Hon. Howard M. Metz-
enbaum, presiding.
OPENING STATEMENT OF HON. HOWARD M. METZENBAUM, U.S.
SENATOR FROM OHIO
Senator Metzenbaum. This hearing will come to order.
This might be called a hearing on the quality of life. Nothing ex-
citing about it, but really having so much to do with the ability of
people to enjoy themselves on trails, bicycle trails, running trails.
It is not a matter that stirs the imagination or gets people all excit-
ed and determined that it is a do or die event, not even a matter
that brings out strong opposition.
But I am pleased that we have scheduled this hearing today to
hear testimony, on a bill I introduced last year, a bill to amend the
National Trails System Act to encourage the creation of recreation-
al trails from abandoned railroad corridors.
I greatly appreciate Senator Bumpers' cooperation in arranging
this hearing. I did not know the sound system was off, so I guess I
had better holler a little bit.
I am sure that we will hear a great deal of testimony this morn-
ing from the witnesses about the importance of outdoor recreation
in this country. Not until I introduced this bill, however, did I real-
ize how popular trails have become for a number of recreational
activities. I have heard from individuals and groups throughout
Ohio and in many other States about the need for trails in their
area, and their efforts to create trails from abandoned railroad cor-
ridors.
In fact, I visited one converted rail-trail last spring which runs
between Loveland and Morrow, Ohio, the Little Miami Scenic
Trail. I was impressed by the enthusiasm and local pride on the
part of those who had created that trail. They are now reaping its
(1)
rewards. I had a chance to ride a bicycle on part of that trail, and
it was an exciting experience.
Americans have always enjoyed the outdoors and will continue
to do so. I fear, however, that increasing urbanization and develop-
ment will continue to encroach upon our remaining outdoor recrea-
tion areas. Therefore, it makes sense to try to preserve some of
these magnificent railroad corridors before they, too, become subdi-
vided and developed. Once they are gone, they are lost forever.
This bill will help to preserve these corridors without significant-
ly increasing Federal spending. In so doing, it retains valuable
property in Federal ownership for the benefit of the American
public. In addition, it provides communities and States the tools
they need to enhance local recreational opportunities.
I would like to quote from the report prepared by the President's
Commission on America's outdoors. "More and more outdoor recre-
ation occurs close to home," they said, "in or near towns and cities
where 80 percent of us soon will live. City parks are wearing out.
There are fewer sidewalks for a population whose favorite outdoor
pastime is walking. We recommend that communities create a
network of greenways across the country."
This afternoon we will hear from two who served on that com-
mission.
I appreciate the cooperation of all those who have agreed to testi-
fy today, especially those who have traveled here from Ohio. I am
also very pleased to welcome Representative Beverly Byron who
has sponsored this legislation in the House.
I would like to note for the record that several specific railroad
companies, as well as the American Association of Railroads, were
invited to testify at this hearing. They all declined, generally
saying they took no position on S. 1544. Also, although no State of-
ficials are here to testify, I have here a letter from the Director of
the Ohio Department of Transportation. He lists 11 Ohio rail-trail
projects which would benefit from the bill. He states, and I quote,
"Such a bill would be a significant aid in securing abandoned rail-
road right-of-way for trails in the State of Ohio. These projects will
require a great deal of time, money and effort in order to buy them
from the railroads or from adjacent property owners. This list of 11
projects," still in quotes, "is probably just the beginning of a very
important transportation, recreation and economic asset to these
communities. All support that you can give to the passage of a bill
favorable to the bicycle and other trail users will be appreciated."
Is the Honorable Beverly B. Byron here? I guess not.
[The texts of S. 1544 and H.R. 2652 follow:]
n
100th congress
1st Session
S. 1544
To amend the National Trails System Act to provide for cooperation with State
and local governments for the improved management of certain Federal
lands, and for other purposes.
m THE SENATE OF THE UNITED STATES
JxjLY 24 flegislative day, June 23), 1987
Mr. Metzenbaum (for himself, Mr. Bingaman, Mr. Fowlee, Mr. Levin, and
Mr. Johnston) introduced the following bill; which was read twice and re-
ferred to the Committee on Energy and Natural Resources
A BILL
To amend the National Trails System Act to provide for coop-
eration with State and local governments for the improved
management of certain Federal lan^s, and for other pm*-
poses.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "National Trails System
5 Improvements Act of 1987".
6 SEC. 2. FINDINGS.
7 Congress hereby finds that —
2
1 (1) State and local governments have a special
2 role to play under the National Trails System Act in
3 acquiring and developing trails for recreation and con-
4 servation purposes;
5 (2) State and local government initiatives are fre-
6 quently rendered more difficult because of a lack of
7 sources of readily available funding, especially for trail
8 acquisition;
9 (3) a self-financed fund would facilitate State and
10 local efforts to acquire and develop trails in accordance
11 with the National Trails System Act; and
12 (4) such a fund should be created and efficiently
13 administered to provide a source of funds on a timely
14 basis for acquisition and development of appropriate
15 trails.
16 SEC. 3. NATIONAL TRAILS SYSTEM ACT AMENDMENTS.
17 Section 9 of the National Trails System Act (16 U.S.C.
18 1248) is hereby amended by adding the following new sub-
19 sections after existing subsection (b):
20 "(c) Commencing upon the date of enactment of this
21 subsection, the right, title, interest, and estate of the United
22 States in all rights of way of the type described in the Act of
23 March 8, 1922 (43 U.S.C. 912), shall remain in the United
24 States upon the abandonment or forfeiture of such rights of
25 way, or portions thereof, except to the extent that any such
IS. 1544 IS
3
1 right of way, or portion thereof, is embraced within a pubUc
2 highway no later than one year after a determination of aban-
3 donment or forfeiture, as provided under such Act.
4 "(d)(1) All rights of way, or portions thereof, retained by
5 the United States pursuant to subsection (c) which are locat-
6 ed within the boundaries of a conservation system unit or a
7 National Forest shall be added to and incorporated within
8 such unit or National Forest and managed accordingly.
9 "(2) All such retained rights of way, or portions thereof,
10 which are located outside the boundaries of a conservation
11 system unit or a National Forest but adjacent to or contigu-
12 ous with any portion of the pubUc lands shall be managed
13 pursuant to the Federal Land Pohcy and Management Act of
14 1976 and other appUcable law, including this section.
15 "(3) All such retained rights of way, or portions thereof,
16 which are located outside the boundaries of a conservation
17 system unit or National Forest which the Secretary of the
18 Interior determines suitable for use as a pubUc recreational
19 trail or other recreational purposes shall be managed by the
20 Secretary for such uses, unless the Secretary determines that
21 it is appropriate to dispose of such lands pursuant to subsec-
22 tion (e) of this section.
23 "(e)(1) Upon application by a unit of State or local gov-
24 emment or by another entity which the Secretary of the In-
25 terior determines to be legally and financially qualified to
IS 1544 IS
4
1 manage a portion of such retained rights of way for public
2 recreational purposes, the Secretary of the Interior is author-
3 ized to transfer to such unit or entity the right, title, and
4 interest of the United States in the surface estate of such
5 portion which is located outside the boundary of a conserva-
6 tion system unit or National Forest, on the condition that
7 should such unit or entity attempt to sell, convey, or other-
8 wise transfer such right, title, or interest or attempt to permit
9 the use of any part of such transferred portion of such re-
10 tained rights of way for any purpose other than public recrea-
11 tion, then all right, title, and interest transferred by the Sec-
12 retary pursuant to this subsection shall revert to the United
13 States.
14 "(2) The Secretary is authorized to sell any portion of
15 such retained rights of way which is located outside the
16 boundaries of a conservation system unit or National Forest
17 if such portion is —
18 "(A) not adjacent to or contiguous with any por-
19 tion of the public lands; or
20 "CB) determined by the Secretary, pursuant to the
21 disposal criteria established by section 203 of the Fed-
22 eral Land Policy and Management Act of 1976, to be
23 suitable for sale.
24 Prior to conducting any such sale, the Secretary shall take
25 appropriate steps to afford a unit of State or local govem-
•S 1544 18
5
1 ment or any other entity an opportunity to seek to obtain
2 such lands pursuant to paragraph (1) of this subsection.
3 "(3) All proceeds from sales of such retained rights of
4 way shall be deposited into the Treasury of the United States
5 and credited to the Trails Fund.
6 "(f) As used in this section —
7 "(1) the term 'conservation system unit' has the
8 same meaning given such term in the Alaska National
9 Interest Lands Conservation Act (Public Law 96-487;
10 94 Stat. 2371 et seq.), except that such term shall also
11 include units outside Alaska; and
12 "(2) the term 'public lands' has the same meaning
13 given such term in the Federal Land Policy and Man-
14 agement Act of 1976.".
15 SEC. 4. TRAILS FUND.
16 (a) Establishment. — There ig hereby established
17 within the Treasury of the United States a separate revolving
18 trails development fund to be known as the Trails Fund. The
19 Trails Fund shall consist of any appropriation made by the
20 Congress, any income from the proceeds of dispositions under
21 section 9(e) of the National Trails System Act, any income or
22 interest received under this section, donations designated for
23 the Trails Fund, and all interest on investments. If the Secre-
24 tary of the Interior determines that the Trails Fund contains,
25 at any time, amounts in excess of current needs, the Secre-
, , eS 1544 IS
8
6
1 tary of the Interior may request the Secretary of the Treas-
2 ury to invest such amounts, or any portions of such amounts,
3 in obligations of the United States having maturities deter-
4 mined by the Secretary of the Treasury to be appropriate to
5 the needs of the Trails Fund and bearing interest at rates
6 determined to be appropriate by the Secretary of the
7 Treasury.
8 (b) Utilization of Funds. — (1) The Secretary of the
9 Interior is authorized to utilize available monies from the
10 Trail Fund for the acquisition of new trails or, in appropriate
11 instances, involving the construction or reconstruction of ex-
12 isting trails for public use, to make loans to State or local
13 agencies, qualified private organizations, or appropriate
14 Federal agencies.
15 (2) At least 60 percent of such funds available in any
16 fiscal year under paragraph (1) shall be made available for
17 loans to State or local agencies or qualified private organiza-
18 tions. At least 60 percent of such funds in each fiscal year
19 shall be devoted to the acquisition of new trails.
20 (3) The Secretary of the Interior shall determine wheth-
21 er or not to charge interest on funds made available pursuant
22 to this section and may establish the rate of interest (if any)
23 to be charged.
24 (4) Loans from the fund shall generally be repaid within
25 four years of the date of the loan.
•S 1544 IS
7
1 (c) Regulations and Coopeeation. — (1) The Sec-
2 retary of the Interior shall promulgate regulations to imple-
3 ment section 9 of the National Trails System Act (as amend-
4 ed by this Act) and to implement this section. Such regula-
5 tions shall, among other things, provide a mechanism to
6 make funds available for acquisition of rights of way for
7 public trails and interim trail purposes within the time peri-
8 ods provided in appHcable regulations or orders issued under
9 otherwise applicable authorities.
10 (2) All agencies of the United States shall cooperate
11 with the Secretary of the Interior in implementing this
12 section.
13 (d) Repoet. — The Secretary of the Interior, in conjunc-
14 tion with the Secretary of the Treasury, shall report annually
15 to the Committee on Interior and Insular Affairs of the
16 House of Representatives and the Committee on Energy and
17 Natural Resources of the Senate concerning the financial
18 condition and operations of the Trails Fund.
19 (e) AuTHOEiZATiON OF AppEOPEiATiONS. — There is
20 hereby authorized to be appropriated $200,000 each year in
21 fiscal years 1988, 1989, 1990, 1991, and 1992 for the ad-
22 ministration of this Act. There is hereby authorized to be
23 appropriated $500,000 each year in fiscal years 1988 and
24 1989 for the Trails Fund.
O
•S 1544 IS
10
n
100th CONGRESS ¥¥ Q O^f O
IST Session |-|^ |^^ ^DO^
IN THE SENATE OF THE UNITED STATES
OcTOBEE 6 Oegislative day, Septembee 25), 1987
Received; read twice and referred to the Committee on Energy and Natural
Resources
AN ACT
To revise the boundaries of Salem Maritime National Historic
Site in the Commonwealth of Massachusetts, and for other
purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. BOUNDARY REVISION OF SALEM MARITIME
4 NATIONAL HISTORIC SITE.
5 (a) BouNDAEY Revision. — The Salem Maritime Na-
6 tional Historic Site (hereafter in this Act referred to as the
7 "national historic site"), designated on March 17, 1938,
8 under section 2 of the Act of August 21, 1935 (49 Stat. 666),
9 and located in Salem, Massachusetts, shall consist of lands
11
2
1 and interests in lands as generally depicted on the map enti-
2 tied "Boundary Map, Salem Maritime National Historic Site,
3 Salem, Massachusetts", numbered 373-80,011, and dated
4 April 1987. The map shall be on file and available for public
5 inspection in the offices of the National Park Service,
6 Department of the Interior.
7 (b) Acquisition of Lands. — The Secretary of the In-
8 terior may acquire lands or interests therein within the
9 boundary of the national historic site by donation, purchase
10 with donated or appropriated funds, or exchange. Any lands
11 or interests in lands owned by the Commonwealth of Massa-
12 chusetts or any political subdivision thereof may be acquired
13 only by donation. Lands and interests therein acquired pursu-
14 ant to this Act shall become part of the national historic site
15 and shall be subject to all the laws and regulations applicable
16 to the national historic site.
Passed the House of Representatives October 5, 1987.
Attest: DONNALD K. ANDERSON,
Clerk.
•HR 2652 RFS
12
Senator Metzenbaum. William Penn Mott, Director of the Nation-
al Park Service, we are very happy to hear from you, sir.
STATEMENT OF WILLIAM PENN MOTT, JR., DIRECTOR, NATIONAL
PARK SERVICE, DEPARTMENT OF THE INTERIOR
Mr. Mott. Mr. Chairman, I filed my complete statement with
you, and I would like to just summarize, in the interest of time, our
position on this particular bill.
Mr. Chairman, we believe that trails and trail-related activities
represent excellent outdoor recreation opportunities for American
citizens. The railroad rights-of-way represent potentially one of the
best opportunities to establish new trails that wind through urban
and suburban communities and traverse scenic open space, as well.
We support the intent of the bill to encourage State and local gov-
ernments to acquire and develop trails for recreation and conserva-
tion purposes, but we cannot recommend enactment of the bill in
its present form. It would be premature for us to support such a
measure without a comprehensive understanding of all of the legal
issues involved, and there are many which would be unresolved
under S. 1544.
Moreover, we do not agree with the findings of the bill outlining
a strong Federal role in providing funding. Congress has, in Section
8(d) of the National Trails System Act, sought to encourage the
railroads to make their inactive rights-of-way available for trail use
on an interim basis. Under that arrangement, the public gets the
use of the trails and the railroads keep the right-of-way for recon-
version to railroad use at a later date.
S. 1544 represents another way to implement the rails-to-trails
policy. It applies to rights-of-way granted to the railroads by the
Federal Government. When such a right-of-way is abandoned, S.
1544 provides that whatever residual property rights the Federal
Government retains will be reserved for possible trail use.
Mr. Chairman, we believe the intent of the bill is sound public
policy. The Federal Government granted these rights and, if possi-
ble, should be able to determine how they are used if they are
abandoned. However, the Solicitor's Office of the Department has
indicated that the Federal Government may not have any residual
rights at all after the right-of-way is abandoned. Apparently courts
have called into question the extent of the Federal Government's
residual rights. I have been assured that our Solicitor's Office will
develop suggested amendments to S. 1544 that will address this
issue, and we will get those amendments to the staff very shortly.
As my prepared statement says, Mr. Chairman, we wish to sup-
port this bill because we strongly believe in its goals. We hope to
have technical amendments to your committee staff shortly.
That concludes my remarks. I would be glad to answer any ques-
tions.
[The prepared statement of Mr. Mott on S. 1544 follows:]
13
STATEMENT OF WILLIAM PENN MOTT , JR., DIRECTOR, NATIONAL PARK
SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE SUBCOMMITTEE ON
PUBLIC LANDS, NATIONAL PARKS AND FORESTS, SENATE COMMITTEE ON
ENERGY AND NATURAL RESOURCES, CONCERNING S. 1544, THE PROPOSED
NATIONAL TRAILS SYSTEM IMPROVEMENTS ACT OF 1987.
MARCH 3, 1988
Mr. Chairman, I appreciate the opportunity to provide your
Subcommittee with the views of the Department of the Interior on
S. 1544, the proposed National Trails System Improvements Act of
1987.
We support the intent of the bill, to encourage State and local
governments to acquire and develop trails for recreation and
conservation purposes, but we cannot recommend enactment of the
bill in its present form. It would be premature for us to sup-
port such a measure without a comprehensive understanding of all
the legal issues involved, and there are many which would be
unresolved under S. 1544. Moreover, we do not agree with the
findings of the bill outlining a strong Federal role in providing
funding.
S. 1544 would amend the National Trails System Act by adding four
subsections to section 9. These provisions deal with abandoned
or forfeited railroad rights-of-way. Under existing law, if it
reverts to the U.S., an abandoned or forfeited right-of-way is
conveyed to the owner of the land traversed by the right-of-way
or to a city if the right-of-way is within a municipality. Under
S. 1544, whatever right-of-way interest that may revert to the
U.S. would remain in the Federal Government to be managed or
disposed of as follows:
If the right-of-way is within the National Park System,
National Wildlife Refuge System, National Trails System,
National Forest System, or Wild and Scenic Rivers System, it
becomes part of that system and is managed accordingly .
14
If the right-of-way is not within one of the conservation
systems but is nevertheless adjacent to public lands managed
by the Bureau of Land Management, then it shall be managed
by BLM in accordance with FLPMA.
If the right-of-way is outside of a conservation system
unit, it could be transferred to qualified non-Federal
entities for recreational purposes, or, if not adjacent to
BLM lands, sold with the proceeds deposited into a new fund
in the Treasury, the Trails Fund.
We note that other federally-managed areas such as Bureau of
Reclamation withdrawals, military reservations, and Indian lands
held in trust by the United States are not covered by the legis-
lation.
Section 4 of the bill would establish the Trails Fund, to consist
of initial appropriations of $500,000 in fiscal years 1988 and
1989, together with proceeds from right-of-way sales, donations,
and interest. The fund would be available, without appropria-
tion, for acquisition and construction of trails and for loans to
states, local governments, and qualified private organizations.
The loans may be interest-free.
The bill further requires an annual report to the legislative
Committees of Congress, and it authorizes appropriations total-
ling $1 million over 2 years for the Trails Fund.
Mr. Chairman, we believe that trails and trail-related activities
represent excellent outdoor recreation opportunities for
America's citizens. Accordingly, we support the initial finding
of the bill related to encouraging State and local governments to
establish additional trail opportunities, as well as the intent
of the provision of the bill that would effectively repeal 43
U.S.C. 912. Apparently, the intent of this last provision is to
15
ensure that any Federal interests in abandoned railroad rights-
of-way would remain in Federal ownership unless and until a
conscious decision is made to transfer or sell such interests for
recreational use. We estimate that approximately 30,000 miles of
public land rights-of-way were granted to the railroads in the
1800 's, and we share the belief of the bill's sponsors that much
of this mileage could be converted to trail use at such time as
it may be abandoned.
There are, however, several problems with the bill that make it
seriously flawed.
We have no specific data, for example, on what rights-of-way
might become available or even how much has been abandoned. We
believe that further analyses and surveys would determine the
dimension of the opportunities or liabilities such rights-of-way
represent. Such surveys should be required before we can under-
take to support S. 1544, and they would require close coordina-
tion with other Federal interests, State and local governments,
and private property owners, including the railroads themselves.
We would also encourage private groups to assemble data on can-
didate areas.
In addition, and more seriously, there are several outstanding
legal issues related to the proposed assertion by the Federal
Government to reclaim title to some of these rights-of-way.
Although we are certainly willing to release whatever interest
the Federal Government may have, if any, in the surface rights to
such property for the purposes envisioned by S. 1544, it is
unclear what these rights may be. Our Departmental Solicitor's
office has been studying this question, and the results appear to
be mixed.
In some jurisdictions, the right-of-way has been construed as
creating a type of limited fee title for the property owner, thus
16
leaving some interest in the original grantor (the Federal
Government), and adjacent property owners could not expect that
they would have ownership rights to the abandoned right-of-way.
In other jurisdictions, however, it has been determined that the
right-of-way is simply an easement over land owned by the under-
lying property owner. In these cases, the Federal Government
retains no right to assert title to the property unless it is on
Federal land. The right-of-way would no longer exist, and the
underlying property owner would no longer carry this burden on
his property. Therefore, upon abandonment, such property would
normally revert to that property owner. Many adjacent property
owners evidently have past assurances from the Federal Government
that the right-of-way is just an easement, and the property
belongs to them. The 1922 Act is vague in this regard.
If S. 1544 were enacted, we are concerned, therefore, that the
Federal Government could be placed in the position of asserting
title to that which it no longer owns, thus creating an issue of
a potential taking by the Federal Government of private property.
We see the possibility of numerous law suits over this very
matter, and that is one reason we believe these determinations
are best left to State and local governments to resolve. More-
over, we believe that the State and local governments would be in
a far better position than we are to negotiate for such recrea-
tional use.
We therefore recommend that section 3 of the bill be drawn to
amend the Act of May 8, 1922, 43 U.S.C. 912, rather than section
9 of the National Trails System Act. Also, by separate letter,
we would like to offer several other technical amendments to the
bill, especially section 3, to address the problems that were
raised during our review of the measure. We question, for
example, the need for additional authority to transfer or sell
any Federal property interests that may exist.
17
We believe that Congress should also consider the liability-
issue, not treated in S. 1544, if Federal rights-of-way are
conveyed to a state or other entity subject to a reversionary
clause. Under section 8(d) of the Trails Act, which deals with
interim use of rights-of-way for trails, the transferee must
assume all tort liability. A similar provision should be con-
sidered for transfer of Federal interests. Consideration could
also be given to requiring a railroad to remove hazards, includ-
ing toxic wastes, following a decision to abandon. This would
also provide assurance that hazardous products and materials
would not automatically be included in a federally-managed area,
with consequent financial exposure, under the terms of the bill.
Finally, Mr. Chairman, we oppose a new Federal loan program which
would require increased appropriations and would earmark receipts
from Federal property sales to the new Trails Fund to be created
under the bill. This would undercut the ability of the Congress
and the Administration to make rational resource allocations from
the amounts available to them. Moreover, this would disconnect
the need for funding state and local trail programs, an activity
which is not a Federal responsibility, from the level of funding
provided. We also note that the previously cited question of
ownership could also call into question a source of Trail Fund
monies, since the Federal Government cannot sell that which it
does not own.
In summary, Mr. Chairman, we have tried to find a way to support
this bill because we strongly believe in its goals, but without a
resolution of these underlying legal questions and as long as the
proposal for Federal funding remains, we cannot support S. 1544.
This concludes my prepared testimony, Mr. Chairman. I would be
pleased to respond to any questions you may have.
18
Senator Metzenbaum. Thank you very much, Mr. Mott. We are
happy to have your support, and will appreciate any suggestions
that your Solicitor may have or that you may have.
In your testimony you expressed reservations concerning what
property interest the United States has retained in these federally
granted railroad rights-of-way. You also intimated that we should do
nothing until that issue is resolved.
What concerns me is that each year this committee is called
upon to pass legislation releasing the Federal interest in these
rights-of-way. In the last Congress we passed several bills to clarify
title and release the Federal interest in railroad rights-of-way. That
is how, frankly, I became interested in this situation in the first
place.
How would you suggest that we resolve that issue?
Mr. Mott. My suggestion, Mr. Chairman, is that if you have
some questions with regard to this legal issue, which is complicat-
ed, as I understand it, that you address a letter to the Solicitor's
office and ask them for clarification of their reasons relative to this
particular subject.
Senator Metzenbaum. Is it my understanding that the Solicitor
is coming forward with some suggested amendments to the bill?
Mr. Mott. Yes, that is my understanding. I understand that you
have written a letter to the Solicitor's office asking some detailed
questions, and that they are prepared to answer those and may
have the answers to you either today or tomorrow.
Senator Metzenbaum. So they will be forthcoming shortly.
Mr. Mott. That is correct.
Senator Metzenbaum. I am advised by staff that we received
those just today, as a matter of fact.
[The letters follow:]
19
HOWARD M MFT;ENBAUM. OHIO. CHAIRMAN
em flRAOlEt. NEW JERSev
JEFF b:(vcaman. new MEXrCO
WYCNE FOWLER. JR.. GEORGIA
DON NICKIES OKLAHOMA
LOWELL? WEICKER. JR. CONNECTICUT
DANIEL J. EVANS. WASHINGTON
Bnitei States Senate
SUBCOMMITTEE ON
ENERGY REGULATION AND CONSERVATION
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
Washincton. DC 20e 10
February 19, 1988
Mr. Robert F. Burford
Director
Bureau of Land Management
Department of Interior
18th ^nd C Streets, NW
Washington, D.C. 20240
Dear Mr . Burford :
The Senate Subcommittee on Public Lands, National Parks and
Forests, of the Committee on Energy and Natural Resources, will
hold a hearing on March 3, 1988, on S. 1544, legislation v;hich I
have introduced to amend the National Trails System Act.
Specifically, the bill retains a federal interest in certain
federally granted railroad rights-of-way for conversion to
recreational trails.
In anticipation of that hearing, I am requesting that you
answer the following questions in order to clarify your position
on federally granted rights-of-way. To the extent that a
specific reference is required with respect to proposed changes
in regulation of the rights-of-way, you should focus on the kinds
of regulation embodied in the pending legislation, S. 1544, a
copy of which I have enclosed.
1. Does the U.S. own a fee interest in abandoned pre-1871
rights-of-way notwithstanding a patent to an adjacent landowner
subsequent to the right-of-way grant?
2. What is the nature of the U.S. interest in right-of-way
under the 1875 Railway Act prior to abarfdonment (e.g., to
minerals, to control the width of the right-of-way and the use of
the right-of-way)? Does the United States retain any interest
upon abandonment which is marketable? Do 43 U.S.C. 912 & 913
apply to 1875 Act rights-of-way?
3. Prior to abandonment, can Congress lawfully adopt
legislation affecting the scope of its interest in an 1875
Railway Act right-of-way to extend the scope of that interest
after abandonment? Put another way, what is the scope of
congressional regulation of an 1875 Railway Act right-of-way
easement?
20
Mr. Robert F. Burford
February 19, 1988
Page Two
4. Is the interest of the U.S. in right-of-way under the
1875 Act sufficiently broad to encompass allowing a public
highway to be located in the right-of-way before abandonment or
within one year of a declaration of abandonment as provided in 43
U.S.C. 912 & 913?
5. If so, is the term "public highway" currently broad
enough to encompass public transportation as would occur on a
public recreationnal trail?
6. Whether or not so, can Congress prior to abandonment
provide that the right-of-way shall be deemed continued so long
as transferred for public recreational trail use, and so long as
devoted to such use, without obligation to purchase any interest
from the railroad or the subsequent patentee?
I apologize for the late notice, but I would appreciate your
responses to these questions by March 1, if possible. Please
contact my assistant, Beverly Anthony (224-2315), if this poses a
problem. Thank you for your cooperation.
Very sincerely yours.
Me
United Statel
saum
/enator
HMM/ba
cc:
Mr
Tom Sansonnetti, Associate Solicitor
21
UKE*
United States Department of the Interior iSSSa'
OFFICE OF THE SOLICITOR
WASHINGTON, DC. 20240
MAR -3 1988
MA.R 0 '6 Recl
CLC.SO.OOOl
The Honorable Howard M. Metzenbaum
Chairman, U.S. Senate Subcommittee
on Energy Regulation and Conservation
Committee on Energy and Natural Resources
Washington, D.C. 20510
Re: S.1544, A Bill to Amend the National Trails System Act
Dear Mr. Chairman:
I have been asked to respond to your letter of February 19, 1988,
to Mr. Robert Burford on the above matter. After a rapid but
thorough review of your questions and the related law, we offer
the following by way of response to the enumerated questions in
your letter.
1. The answer to your first question is no.
Wyoming v. Udall, 379 F.2d 635, 639 (10th Cir.
observed:
In State of
1967) , the court
The Act of March 8, 1922 ... 43 U.S.C. § 912 relates
to abandoned railroad rights-of-way and provides that
upon abandonment title goes to the owners of the
adjoining tract without further conveyance provided
that "the transfer of such lands shall be subject to
and contain reservations in favor of the United States
of all oil, gas, and other minerals."
The Act of March 8, 1922, applies only to the public lands.
When the 1922 Act was enacted, no distinction was made between
pre-1871 and post-1871 railroad right-of-way grants. Under the
then-prevailing Supreme Court law, all of these grants were
viewed as "limited fee" grants. But, in 1942, the Supreme Court
altered its stance. In Great Northern Railroad Co. v. United
States, 315 U.S. 262, 277-279, the court said that a right-of-way
granted under the General Railroad Right-of-Way Act of 1875 was
an "easement* and not a fee grant. This threw the 1922 Act out
of kilter, as easements were thought to terminate upon
abandonment. Therefore, the United States would receive nothing
under the 1922 Act:
22
-2-
We realize that in Great Northern the Court completely
disregarded the Abandoned Railroad Right-of-Way Act
and that after Great Northern such act applied only to
pre-1871 grants.
State of Wyoming, supra , 639.
with this concern in mind, more recent decisions have narrowed
the gap between the "limited fee," pre-1871 grants and the
"easement" or post-1871 grants, so that arguably no real
distinction remains. The difficulty is that in narrowing the
gap, the precise nature of the railroad's interest in even the
pre-1871 grants is no longer clear. Is the interest a fee
(title) interest, or is it merely an evaporative easement?
Because of this uncertainty, we believe it would be advisable to
view the 1922 Act as providing for a release of whatever interest
the Government may hold, and not an affirmative grant, to be sure
that the statute would not operate as a "taking" of private
property.
2 . The United States owns the minerals underlying rights-of-way
granted under the 1875 Railroad Right-of-Way Granting Act. Great
Northern Railway Co., supra, 279. The United States cannot
alter substantively what it has granted, but by means of a 1920
statute, it has purported to authorize railroads to convey
portions of their rights-of-way for public highways or street
purposes. 43 U.S.C. § 913. See also 23 U.S.C. § 316; State
of Idaho V. Oregon Short Line Railroad Co., 617 F. Supp. 219
(D. Idaho 1985) . The trend of the more recent decisions is to
recognize that the railroad enjoys exclusive possession of the
right-of-way but is restricted in its use to only railroad
purposes. So long as the railroad's limited use and exclusive
possession to that end is not disturbed, other uses may be made
of the lands traversed by the right-of-way, if authorized by
those whose interests or rights would be affected by the
prospective use. See e.g. , Energy Transportation Systems Inc. v.
Union Pacific Railroad Co., 606 F.2d 934 (10th Cir. 1979);
Energy Transportation Systems Inc. v. Union Pacific Railroad Co. ,
619 F.2d 696 (8th Cir. 1980); Energy Transportation Systems Inc.
v. Union Pacific Railroad Co., 435 F.Supp. 313, 318 (D. Wyo.
1977). These cases are concerned with pre-1871 right-of-way
grants, but the same principle applies to the right-of-way
easements granted under the 1875 Act. Great Northern Railway
Co. , supra.
As noted above, the Supreme Court has vacillated as to the nature
of the right-of-way grants made under the 1875 Railroad Right-
of-Way Act. And, as pointed out, today there is a judicial
tendency favoring the concept that really no distinction exists
between pre-1871 and post-1871 rights-of-way, the theory being
that railroad rights-of-way are unique in the sense that railroad
23
-3-
operations require exclusive possession of the rights-of-way
lands albeit for a limited right of use. If these rights-of-way
are viewed as merely 'easements," in the conventional sense of
that term, the right-of-way ceases to exist upon abandonment
and, therefore, nothing reverts to the Government. City of
Aberdeen v. Chicago & North Western Transportation Co., 602 F.
Supp. 589, 593 (D.S.D. 1984). If, on the other hand, the hybrid
interpretation (exclusive possession — limited use) is followed,
a "retained interest" in the United States is found, for purposes
of the 1922 Act, 43 U.S.C. § 912. State of Idaho v. Oregon
Short Line Railroad Co., Civ. No. 83-1473 (D. Idaho 1985), not
reported, but referenced at 617 F. Supp. 213 (D. Idaho 1985) .
3 . In response to this question we would first note that
Congress cannot take away vested property rights without payment
of just compensation. Similarly, the United States can resort to
the courts to enforce the terms of a federal right-of-way grant.
4. See the answer to question No. 2 above. If, before
abandonment, the highway would interfere with a railroad's right
of exclusive possession, the United States cannot interfere
without the railroad's consent. See 43 U.S.C. § 913, 23 U.S.C.
316. Whether a highway can be located within one year after
abandonment, pursuant to 43 U.S.C. § 912, depends on whether the
United States is held to have a "retained interest."
5. The expression "public highway* in this question presumably
refers to the same expression as found in the 1922 Act, 43 U.S.C.
§ 912. An examination of the legislative history would be
necessary to determine what Congress intended when it used this
term in the 1922 Act. In State of Idaho v. Oregon Short Line
Railroad Co. , supra (not reported) , the court said:
With the relatively recent advent of the automobile,
the 66th and 67th Congress obviously perceived the
rising importance of highway transportation; and acted
to preserve, where possible, railroad rights-of-way
for such use. For primarily that purpose, §§ 912, 913
and 316 were enacted.
Presumably, the greater (automotive) use would embrace the lesser
(non-automotive) use. Both uses, of course, ean include
recreational activities.
6. I understand this question to contemplate post abandonment
recreational trail use. At the present time, we cannot foresee
how a given court might construe the right-of-way interest as a
retained interest or an easement. If the "retained interest"
interpretation of 43 U.S.C. § 912 prevails in court, then
Congress could amend that statute prospectively to provide for
recreational trail use of the "retained interest" under such
conditions and on such terms as it deems appropriate. The same
24
-4-
observation applies if the statute were construed to operate as a
release of whatever interest the government might have. If, in
contrast, a court should construe the right-of-way as simply a
common law easement, no interest in the land would revert to the
United States.
Given the short amount of time we have had to research this
matter, we would be happy to cooperate in answering any further
questions that you may have.
^
Thomas L. Sansonetti
u^gZi^f Associate Solicitor
^ Energy and Resources
25
United States Department of the Interior
OFFICE OF THE SOLICITOR
WASHINGTON, D.C. 20240
cLc.so.oooi MAR 3 I98g
The Honorable Howard M. Metzenbaum
Chairman, U.S. Senate Subcoimnittee
on Energy Regulation and Conservation
Committee on Energy and Natural Resources
Washington, D.C. 20510
Re: S.1544, A Bill to Amend the National Trails System Act
Dear Mr. Chairman:
On page 3 of our letter to you dated today. State of Idaho v.
Oregon Short Line Railroad Co., Civ. No. 83-1473 (D. Idaho 1985),
was referred to without a reporter citation. In fact the
decision was reported. The correct citation is 617 F. Supp. 207
(D. Idaho 1985) .
Near the bottom of page 3 there is a quotation taken from this
decision. The quoted language appears at 617 F. Supp. 212-213.
We apologize for this oversight.
/
Sincerely,
Thomas L. Sansonetti
Associate Solicitor
Energy and Resources
26
/
I
-i-
IS
II
i
i
i
i .
15
/ i- L,
^
27
Senator Metzenbaum. It is my understanding that the written
testimony of a couple of the witnesses today claims that the 1922 act
currently codified at 43 U.S.C. 912 forever prospectively vests the
Federal right-of-way and adjacent property owners, and that Con-
gress cannot change this giveway for a not-yet-abandoned right-of-
way without taking the property from adjacent land owners.
I am not sure that this is not a legal question, but maybe you
have the answer.
Does the Interior Department believe that these Federal proper-
ties have been permanently given away and that Congress cannot
retain for the Federal Government those properties where rail use
has not been abandoned as S. 1544 does?
Mr. MoTT. Mr. Chairman, I think that is probably again one of
these complicated legal questions. My understanding is that in the
original 13 States the problem is different than it is in the rest of
the States of the Union, and that the rights or the easements or
properties that were made available to the railroads prior to 1871
are different there than they are after 1871. I think those ariB ques-
tions that probably the attorneys should answer rather than my
trying to answer them.
Senator Metzenbaum. Mr. Mott, it is my understanding the Na-
tional Park Service has expressed interest in acquiring the D.C.
portion of the so-called Georgetown Branch of the Baltimore &
Ohio right-of-way which is being abandoned right here in the Dis-
trict of Columbia, but the Park Service lacks the funds to do so.
I realize this bill will not be up and running in time to help, but
would S. 1544 be helpful in such situations in the future?
Mr. Mott, In the case of abandoned public land rights-of-way, I
would think so, once we clarify this legal question. This particular
trail that you are referring to in Georgetown is a very worthwhile
project. I would hope that funding would be available so that
project and that right-of-way could go forward because it will make
it possible for the people in this area to have a 25-mile hiking trail.
I have hiked over a great portion of this area, and I think that it is
a very important area to acquire.
Senator Metzenbaum. As I understand, the National Park Serv-
ice actually does favor the creation of more trails and greenways.
Mr. Mott, Yes, absolutely.
Senator Metzenbaum. And I gather that you feel that the Interi-
or Department agrees that this bill is consistent with the recom-
mendation of the President's Commission on Americans Outdoors.
Mr. Mott. That is correct. I think the only question we have is
getting squared away on this legal matter.
Senator Metzenbaum. I understand the ICC has at times been
uncooperative in helping to negotiate right-of-way sales between
railroads and public entities. The ICC is supposed to ensure these
sales are made on reasonable terms.
My bill does not address this problem, but can you briefly ex-
plain how the ICC regulations are inhibiting rail acquisitions for
public use?
Mr. Mott. I am not sure that I can answer that question. I would
prefer to give you a written answer to that, but it is my general
understanding that ICC does not normally think in terms of rea-
sonable values. In other words, the values are placed on the trail in
28
segmented parcels based on adjacent property owner values rather
than on the total right-of-way.
[Information not received.]
Senator Metzenbaum. I realize you may not have the informa-
tion today, but could your staff supply for the record in the next
two weeks the number of successful conversions to public trail use
of railroad rights-of-way which occurred each year over the past
few years as well as the number of rail abandonments approved by
the ICC each year?
Mr. MoTT. Yes, we will be glad to provide that for you.
[Information not received.]
Senator Metzenbaum. And can you supply it both in miles and
in number of instances?
Mr. MoTT. Yes, I will.
Senator Metzenbaum. Could you also supply for the record any
reports describing the past, present or future rail-trail program of
the National Park Service or its predecessors?
Mr. MoTT. Yes, I will be glad to do that.
[Information not received.]
Senator Metzenbaum. Could you supply for the record any re-
ports dealing with the effect of rail-trails on adjacent property
values and crime rates?
Mr. MoTT. Yes. I will be glad to do that.
[Information not received.]
Mr. MoTT. I can tell you of an instance, for example, that I was
involved in California with the conversion of the Northern Pacif-
ic right-of-way. The people in Miranda, California, were very much
opposed to that being a trail on the basis that this was going to
create problems of vandalism and deteriorate their property values.
That program went forward, and not only did it increase proper-
ty values in the area, there were no vandalism incidents that I
know of in the last 5 years, and a lot of the children of the families
who were opposed to this right-of-way now are selling lemonade in
the summertime along the trail.
Senator Metzenbaum. Sounds good to me.
I understand that your testimony, written testimony, indicated
some concern with possible amendments to address questions of li-
ability. I gather you and your staff would be willing to work with
us to come up with appropriate amendments which are not admin-
istratively onerous for anyone, is that correct?
Mr. MoTT. Absolutely.
Senator Metzenbaum. I thank you for your testimony and your
responses this afternoon, and we look forward to working with you,
Mr. Mott.
[Subsequent to the hearing the subcommittee received the follow-
ing:]
29
STATEMENT OF WILLIAM PENN MOTT, JR., DIRECTOR, NATIONAL PARK
SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE SUBCOMMITTEE ON
PUBLIC LANDS, NATIONAL PARKS AND FORESTS OF THE SENATE COMMITTEE
ON ENERGY AND NATURAL RESOURCES CONCERNING H,R. 2652, A BILL TO
REVISE THE BOUNDARIES OF SALEM MARITIME NATIONAL HISTORIC SITE IN
THE COMMONWEALTH OF MASSACHUSETTS, AND FOR OTHER PURPOSES.
MARCH 3, 1988
Mr. Chairman and Members of the Committee, it is a pleasure to be
here today to discuss H.R. 2652, a bill to revise the boundaries
of Salem Maritime National Historic Site in the Commonwealth of
Massachusetts, and for other purposes.
We recommend enactment of H.R. 2652.
As passed by the House of Representatives on October 5, 1987,
H.R. 2652 would revise the boundaries of Salem Maritime National
Historic Site to include approximately 0.07 acre of land on the
corner of Derby Street and Palfrey Court in the Derby Street
Historic District. On this land is located a 3-story, red brick
masonry building constructed in 1909 and formerly used as a
private club by the St. Joseph's Roman Catholic Polish Club.
Salem Maritime National Historic Site was established by
Secretarial Order on March 17, 1938, to commemorate the maritime
history of New England and this Nation. This 8.95-acre national
historic site preserves buildings and wharves typical of the
historical period of the original maritime scene along Salem
Harbor . »
Since the establishment of the site, the National Park Service
has used the existing park structures for visitor, operational,
and administrative purposes. Initially these actions were
efficient and provided for a satisfying visitor experience as
well as proper resource preservation and park administration.
However, with the passage of time, the visitation to this site
has increased to over 800,000 visitors per year so that the
85-^64 0-88-2
30
United States Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
MARII
ilonoxabie Dale Bumpers
Chairmdi". . Subcommittee on Public Lands.
Ha: innai Parks and Forest.:
Ccr.,i.,-t tee on Energy and Naturaj. Pesources
United Staples Oenane
wasr.lngton. D.C. 20510
Lear Ctrna'.
Bumpers
ht the heariuq oefore your Subcomm-i.ttee of Marcli i. concerning
.: . ^544, T.he proposed "Naiional Trails System Improvements Act of
[■'Jt" ' this Department's witness promi.:-ed to provide recommended
ar.ieriCiiier. ts t.;' the bill that addressed our concerns. The amend-
ments are enclosed.
^xncerely
Philip G. Kiko
Legislative Counsel
Enclosure
31
DEPARTMENT OF THE INTERIOR AMENDMENTS TO S. 1544
1. On page 2 lines 5 through 15, strike paragraphs (2) through
(4) and insert the following:
"(2! many miles of public land rights-of-way have been
granted to the railroads by the United States, and much of
this mileage could be suitable for trail use at such time as
it may be abandoned; and
"(3) tne United States should retain whatever residual
interest it may have m such public land rights-of-way and
relinquish it, where appropriate, in favor of State and
local governments or other nonprofit entities for trail
purposes . "
This amt?tidr.;t-p.t .itriiies the three findings that refer to the need
for funding and substitutes two findings that state public policy
with respect to the use of abandoned rights-of-way for trail
purposes .
On page 2, strike lines It through ^b and insert the follow-
xn;5, and redesignate proposed new subsections (d), (e), and
'f) :i:i ic], (dl an'i (e) respectively:
"Sec. 3. The Act entitle:":, "An Act to provide for the
.•:iopo:::iticn of abandoned portions of rights of way granted
tc raxlroad companies," approved March 8, 1922 (42 Stat.
414; 43 U.i^.C. 912), is amendeu by inserting '(a)' after
'That' the first place it occur;? and adding the following
.i^w .vubseo r iijns :
■ . i' ! Commencing upon the date of enactment of this
subsecticn, whatever right, title, interest, and estate
Uie iJii.^ted States may liave m such rights oi way
described in subsection (a) shall be retained by the
United States, except ro the extent that any such" ;
ana cu page 3, line 3, strike "such Acti' and substitute
n • 1 .
.■• ainendment changes the thrust of tlie /..ill from an amendment
the National Trails System Act to an amendment to the basic
jC/eiiiiii) ii'iiiidoueci pub.:, a'.' .la/iJ rights-of-way.
32
Mr. MoTT. Thank you very much.
Mr. Chairman.
Senator Metzenbaum. Do you want to comment also on the
Salem Maritime Bill? Do you want to comment on that at the same
time?
Mr. MoTT. Yes, I would like to present our testimony for the
record, but just briefly, we think that it is very important to ac-
quire this piece of property because now we are utilizing some of
our historic structures for administrative purposes, for mainte-
nance and storage and so forth. Because of the interest in this
project and the increased attendance, we need additional space,
and this particular building will provide that space for us. We rec-
ommend the enactment of the bill.
[The prepared statement of Mr. Mott on H.R. 2652 follows:]
33
:■:■ . On page 4. line 3, strike "transfer" and insert "release and
quit claim"; ;.n line 4 after "interest" insert " , if any,";
and m lii;6 ^i strike "transferred" and insert " , if any,
reJ eased" .
Till;-. ,^,:v.e:idmen t deletes language that could be construed as an
assertion by the united States of title to an interest m land
^•.^..■-- iL may net 1.11 fact hava.
4. C , page 4, insert the following after the period m line 13:
"Any sucn release and quitclaim shall be on the express
condition that such unit cr entity assume full respon-
sibility f;:)r any legal liability arising out of such
q'.'itciaim or use."
This amendment adds language similar to that in section 8(d) of
the National Trails System Act with respect to liability.
5. On page 4, strike lines 14 through 25; on page 5, strike
lines 1 through 5; and on page 3, line 23, delete "(1)".
This amendment deletes unnecessary sales authority and language
designating the Trails Fund to receive receipts of sales of
right-of-way interests.
b. Beginning on page 5, line 15, 'through page 7, line 24,
strike section 4 in its entirety.
This amendment deletes section 4, which establishes a new Trails
Fund and authorizes appropriations for the fund and for adminis-
tration of thic Act.
Amend the title to refer to an amendment of the Act of March
8, 1922, and omit reference to the National Trails System
Act.
34
-2-
mixing of visitor and administrative functions within historic
structures has resulted in a diminished visitor experience,
administrative ineffectiveness, and unwarranted impacts to the
unit's resources.
To be more specific, with the exception of the 1670 Narbonne
House and the contemporary comfort station, park structures
accommodate a mixture of visitor and interpretive uses,
maintenance operations and storage, artifact and archive storage,
and administrative activities simultaneously.
A good example of the tight occupancy of park structures is the
Custom House, a structure built in 1819. In the basement, a
maintenance shop is located along with interpretive staff offices
and artifact storage. The first floor and half of the second
floor is open for visitor use and park interpretation. The other
half of the second floor is office space, and the unheated attic
is filled with stored artifacts. Park visitors inadvertently
enter offices and maintenance areas, which not only interrupts
work but also creates inconvenience and confusion for the
visitor. Therefore, the inclusion of St. Joseph's Hall would
provide the flexibility of moving the maintenance, operations,
and administrative activities from three of the park's most
significant structures (the 1819 Custom House, the 1761 Derby
House, and the 1775 Hawkes House) to the St. Joseph's Hall. This
action would relieve the overcrowded conditions and would greatly
reduce the destructive wear and tear on the historic fabric
within the park.
Further, the inclusion of St. Joseph's Hall within the boundary
is documented in the planning and research document approved in
1986 entitled "Park Building Use and Operational Space
Analysis: Salem Maritime National Historic Site, Salem,
Massachusetts". This acquisition, therefore, would meet minimum
documented management needs of the park and would, at the same
time, contribute to local historic preservation efforts. Located
35
-3-
in one of Salem's historic districts, this building has been
vacant for two years due to strong neighborhood resistance to any
development that would increase neighborhood densities. There
appears to be strong support locally for the inclusion of this
structure within the park boundaries. Finally, the estimated
cost of acquisition of this building is approximately $260,000.
As Salem Maritime National Historic Site approaches its 50th
anniversary, Mr. Chairman and Members of the Committee, the
pressures upon park resources continue to increase, especially
since the park is participating as a designated site in the
bicentennial celebrations of both the U.S. Constitution this year
and the U.S. Custom Service in 1988. The enactment of H.R. 2652
could assist in addressing some of these pressures. However,
fiscal constraints may prevent us from taking action in the
immediate future to acquire the property proposed to be
included. The acquisition of this property must be weighed among
other land acquisition priorities. We are now proposing land
acquisition funds only for deficiency cou-tt awards and for
emergency and hardship acquisitions. We do not intend to request
additional appropriations to purchase this property. We plan,
instead, to review the current list of properties planned to be
acquired to determine whether or not funds can be reprogrammed
for this purpose. We will also explore opportunities to seek
non-Federal sources of funding. With that understanding, Mr.
Cnairman, we recommend enactment of H.R. 2652.
That concludes my prepared statement, Mr. Chairman. I would be
happy to respond to any questions that you or other members of
the Committee may have.
36
37
Senator Metzenbaum. Senators Kennedy and Kerry both have
statements in support of this bill, and we will include them in the
record. They could not be with us this afternoon.
Thank you very much.
[The prepared statements of Senator Kennedy and Senator Kerry
follow:]
38
STATEMENT OF SENATOR EDWARD M. KENNEDY
ON H.R. 2652 BEFORE THE PUBLIC LANDS,
NATIONAL PARKS AND FORESTS SUBCOMMITTEE
MARCH 3, 1988
I wish to thank the Chairman and members of the Public Lands,
National Parks and Forests Subcommittee for convening this hearing.
I would like to express my support for H.R. 2652, a bill to revise
the boundaries of the Salem Maritime National Historic Site in
Massachusetts .
This legislation would extend the boundaries of the Salem
National Park to enable Salem Maritime to purchase the St. Joseph's
Polish Roman Catholic Society building. Park acquisition of the
building would enable Salem Maritime to acquire needed office space
and enable personnel to vacate the historic Customs House which is
currently being used for administrative purposes. The additional
space will allow Salem Maritime to exhibit historic projects at the
Customs House.
This legislation requires no appropriation by Congress. Rather,
it is a simple, noncontroversial bill that has the support of the
National Park Service and the Salem community.
Established in 1938, the Salem Maritime National Historic Site is
the oldest site in the National Park Service. It has vast historic
significance in its preservation and interpretation of the history of
maritime shipping and commerce. For more than two centuries, Salem
has served as a major port in our country. Historically, it was the
only major American port not closed by the British during the
American Revolution.
Following the War, the Salem merchant and maritime community
established a flourishing trade throughout the worlc including China,
India, and Sumatra. Customs duties from these ports made substantial
contributions to our nation's revenues.
Today, Salem Maritime National Historic Site includes several
historic wharves, the Custom House, warehouses and homes for
merchants and laborers. It is important that the resources of the
Salem Maritime National Historic Site be prudently managed so that
the 800,000 annual visitors to the Park can appreciate its historic
significance. Enactment of this legislation will ensure the
effective use of the facilities for the benefit of citizens and
visitors to the City of Salem.
I respectfully urge my colleagues on the Public Lands, National
Parks and Forest Subcommittee to act favorably on this legislation.
39
statement by Senator/John Kerry
Senate Subcommittee on Public Lands,
National Parks and Forests on H.R. 26S2
March ^, iq88.
Mr. Chairman, I want to commend you for holding today's
hearing on H.R. 2652. The legislation is quite simple yet
its consequences are far-reaching in preserving a piece of
American maritime history.
H.R. 2652 has been endorsed by the National Park Service. It
will permit the National Park Service to expand its boundary
at the Salem Maritime National Historic site in Salem
Massachusetts by .07 of an acre. This action will enable the
Park Service to acquire an adjacent building, the St.
Joseph's Polish Hall, which is badly needed to house historic
archives and documents as well as to serve as space for
maintenance and administration of the park.
Established in 1938, the Salem Maritime Historic site is one
of the oldest parks in the country. It is located in the
historic sections of Salem and sits on nine acres of federal
land. The site is designed to display typical maritime life
along Salem harbor during the late eighteenth and nineteenth
centuries. It is a tribute to the ships, seamen, sailors and
40
fishermen who played a vital economic and cultural role in
Salem's history, and in the building of the America we know
today.
Currently, the majority of the park's activities takes place
in three buildings — the 1819 Custom House, the 1761 Derby
House and the 1775 Hawkes house. Activities include
administration, operations, storage and most, importantly,
visitation. Today, as an increasing number of individuals
seek to learn more about American maritime history, the park
is finding it difficult to accommodate the necessary multi
purpose uses with its limited space. Last year, a record
800,000 people visited the Salem Maritime Historical Site.
And with future plans to expand and turn the historic site
into a full fledged historic park, for all to experience and
learn from, the burdens on these historic structures will
only get greater.
The St. Joseph's Polish Hall holds the key to addressing this
problem. Built in 1910, not only will the park be adding an
important historic building to help add to the preservation
of this nation's maritime history, but it will also solve the
overcrowding and stress that is currently agrivating the
exisiting park structures. In additon, it will enable the
Park Service to house and preserve ctitical historic
documents and archives. For example, the hall will be used
to store and display records from the U.S. Customs service
41
dating back to the early l800's. These recordsnot only
include activities at the Salem Custom's house, but include
records from five northern Massachusetts ports. These
documents teach America's history and detail and vividly — we
must preserve this great treasure from our past.
Salem has contributed greatly to American maritime history
and to American economic history. Once a main port for the
bustling and lucrative East Indian trading of the colonial
days and a major port during the Revolutionary War, and later
a key port for historic naval operations and the Merchant
Marine, today Salem's waterfront has fallen on hard times.
Wharves are leaning into the ocean, sea walls are collapsing,
and historic forts are closed and decaying. But none the
less, the Salem water front has a bright and prosperous
future if we help.
The Salem Partnership, a group of business and community
leaders, including state and local officials, envision a true
renaissance in historic Salem and Mr. Chairman I too share
that vision. Private, state and local funds have already
been used to begin to turn the Salem site into a Salem
Park and give the community what it needs to enhance and
preserve a once-thriving maritime port.
Mr. Chairman and members of the Committee, this year we
celebrate the 50th anniversary of the Salem Maritime National
42
Historical Site. I cannot think of a better birthday present
than to pass this legislation and permit the boundary
change. Through such action Mr. Chairman, we will in fact be
giving the National Park Service and the City of Salem, the
necessary space to begin their renaissance. I ask for its
expedited consideration and thank the committee for holding
today's hearing.
43
Senator Metzenbaum. Mr. F. Dale Robertson, Chief of the Forest
Service, the Department of Agriculture.
We normally ask our witnesses to confine their statements to
about 5 minutes. Mr. Mott did that, and we will put the entire
statement in the record.
If you would be good enough to do the same, Mr. Robertson, we
would appreciate it.
STATEMENT OF F. DALE ROBERTSON, CHIEF, FOREST SERVICE,
U.S. DEPARTMENT OF AGRICULTURE
Mr. Robertson. I would be glad to do that, Mr. Chairman.
Well, first, I want to tell you the Forest Service strongly supports
the rails-to-trails concept. We believe that converting certain aban-
doned railroad rights-of-ways to trails would help meet the growing
demand for hiking and outdoor recreation.
We just have two problems with this bill. One is the private
property rights issue. There are some legal questions about just
what are the Federal Government's reserve property rights under
the various statutory authorities granting railroad rights-of-ways,
and we do not believe that it will be an easy or a simple task to
untangle these potential property rights issues which will have to
be done on a case-by-case basis.
I believe, Senator Metzenbaum, you have asked the Department
of Interior to answer or respond to some of these legal questions,
and the Forest Service will defer to the legal judgment of the De-
partment of Interior on this matter.
Secondly, in view of the Federal deficit problem, we do not sup-
port the Trails Fund. I suspect that in some cases the cost of clear-
ing land title and doing all of the legal work associated with aban-
doned railroad rights-of-ways would cost more than the value of the
right-of-way.
In summary, if we can clear up the legal questions on property
rights and deal with the Trails Fund, the Department of Agricul-
ture supports this bill.
[The prepared statement of Mr. Robertson follows:]
44
STATEMENT OF
F. DALE ROBERTSON, CHIEF
FOREST SERVICE
UNITED STATES DEPARTMENT OF AGRICULTURE
Before the
Subcommittee on Public Lands, National Parks and Forests
Committee on Energy and Natural Resources
United States Senate
Concerning S. 15^4, National Trails System Improvements Act of 1987
March 3, 1988
MR. CHAIRMAN AND MEMBERS OF THE SUBCOWIITTEE:
Thank you for the opportunity to offer the Department of Agriculture's views on
S. 1514, a bill "To amend the National Trails System Act to provide for
cooperation with State and local governments for the Improved management of
certain Federal lands, and for other purposes.'*
We support the concept of converting abandoned railroad rights-of-way to
trails. However, we believe S. 1544 would probably do more to confuse land
titles than to expand the national network of trails.
The Department of Agriculture would support S. 1544 if it were amended to
resolve several questions related to private property rights, to delete
section 4 which would establish a new Trails Fund and authorize additional
appropriations, and to delete unnecessary new authority for the transfer or
sale of Federal property interests.
S. 1544 would amend section 9 of the National Trails System Act ("Trails Act")
by adding several new subsections. Enactment of S. 1544 would require that any
45
2
right, title, interest, and estate of the United States in all rights-of-way
granted to railroad companies for use as a railroad or for railroad structures
would remain in the United States upon the abandonment or forfeiture of such
rights-of-way. An exception would be made for those rights-of-way included
within a public highway within 1 year after abandonment.
Abandoned rights-of-way retained by the United States within the boundaries of
a National Forest or a conservation unit would be added to that Forest or unit
and managed accordingly. All such rights-of-way outside the boundaries of a
conservation unit or a National Forest, but adjacent to or contiguous with any
public lands, would be managed by the Secretary of the Interior pursuant to the
Federal Land Policy and Management Act of 1976. Under certain conditions, the
Secretary of the Interior would be authorized to transfer such lands to a unit
of State or local government or to sell any portion of the retained
rights-of-way.
S. 1544 would establish a revolving trails development fund, to be known as the
Trails Fund. The fund would consist of appropriations made by Congress, funds
from the sale of any retained railway rights-of-way, donations, and Interest on
the fund. The fund would be managed by the Secretary o^ the Interior for
acquisition of new trails or construction or reconstruction of existing
trails. The Secretary of the Interior would be authorized to make loans from
the fund to qualifying organizations and governmental units for trail purposes.
This bill pertains to residual property rights of the United States. Enactment
could affect thousands of rights-of-way conveyances made under a variety of
46
3
statutory authorities and require complicated interpretations of public land
law pertaining to residual rights of the United States.
Section 3 assumes that the United States has some remaining residual interest
in certain railway rights-of-way which could be converted to recreation trail
uses. That may or may not be the case.
Upon abandonment, rights-of-way across National Forest System lands that were
granted under the Act of March 3, 1875 (43 U.S.C. 934) generally vest to the
United States upon abandonment. Rights-of-way granted under other authorities
must be individually examined to determine the status of the rights-of-way if
the railway is abandoned.
In our experience, and from review of selected railroad grants affecting
National Forests, it appears that the United States has residual property
interests in few, if any, rights-of-way over private land within National
Forest boundaries. Under current law, (43 U.S.C. 912) if the United States has
some residual property rights in abandoned rights-of-way over private land,
those rights would pass to the owner of the underlying land, subject to certain
state rights to use the rights-of-way for roads.
The proposed bill would implicitly repeal 43 U.S.C. 912, thereby reversing the
public policy set in 1922 with regard to abandoned right-of-ways. It is
unclear what effect this would have on rights already vested under section
912. It is also unclear what the effects would be on land titles affected by
rights-of-way. Section 912 was enacted, in part, to provide a cost effective
and expeditious means of clearing title to patented land. If the process for
47
4
dealing with abandoned rights of way Is to be changed, It ought to be done by
direct amendment of section 912 with full consideration of the Impacts on land
titles and the potential taking Issues.
S. 15M1J Is Inconsistent with the provisions of most state laws which provide
that rights in an abandoned easement merge with the underlying fee title.
Adjacent property owners have an expectation of being the successors to the
rights In abandoned rights-of-way. When dealing with potential clouds on
private land titles, we see a compelling reason to be as consistent as possible
with state property laws. This bill does not do that. We are concerned that
enactment of this bill will complicate land titles by interposing the Federal
Government in chains of title to land long ago patented from the public
domain. This will inevitably lead to litigation.
We do not support the creation of a Trails Fund. This fund would probably cost
more to administer than any benefits it would generate.
We again would like to empheislze that we support the concept of "rails to
trails". However, the concerns we have raised must be appropriately addressed
in any bill that we would support. We would be pleased to work with the
subcommittee to develop a mutually acceptable bill.
This concludes my testimony. I would be pleased to answer any questions you
may have.
48
Senator Metzenbaum. Very good. Thank you very much.
Mr. Robertson, I think that you indicate that there may be some
legal questions, but I would guess that Congress could determine
the nature of the Federal easement that has been granted, and
that if there be litigation that results from such legislation as we
enact, so be it. It would not be the first time. But I think we have
to meet our responsibility anyhow and do what we think is right,
and then if the courts rule that we have overstepped our bounds,
we can come back and try to do it over again if that be necessary.
I very much appreciate your support of this bill and look forward
to working with you.
Mr. Robertson. We would like to work with the committee as we
go through this.
Senator Metzenbaum, Thank you.
Mr. Robertson. Thank you, Mr. Chairman.
Senator Metzenbaum. It is my understanding that the Honora-
ble Beverly Byron has joined us.
We would be very happy to hear from you, Congresswoman.
STATEMENT OF HON. BEVERLY B. BYRON, U.S. REPRESENTATIVE
FROM MARYLAND
Mrs. Bryon. Thank you, Senator.
Let me apologize for being a little late. I was Chairing a hearing
and then we had two votes on the Floor, and as you know, they
never come at a convenient time.
Senator Metzenbaum. We understand.
Mrs. Byron. But let me say that I am delighted to be here today
to discuss an issue that I find of great personal interest to me, and
that is the preservation and the expansion of the American Trails
System.
I serve as a Board Member of the American Hiking Society, so
consequently I am very interested in our Trails System and its
maintenance and the increase of it.
As a hiker myself, I am glad to have the opportunity to lend my
support to S. 1544, the Senate companion bill to one that I have
introduced in the House, which is H.R. 2641. And these bills, as
many already know, would provide for the conversion of abandoned
rail right-of-way to trails use whenever possible. When such a con-
version is not feasible, the right-of-way can be sold, the proceeds of
which would be placed in a trust fund to be used for the purchase
of land for trails nationwide.
I think the conversion of the right-of-way bill is an issue, one
that very few can argue with. And I think the lands were original-
ly given by the government to the railroad companies in the
heyday of our rail expansion for the purpose of rail construction.
Since that time, as we know, many, many miles of right-of-ways
have been abandoned, and I think we should once again put them
back to good use for the public.
Many of these tracts lend themselves extremely well to conver-
sion, and what better way to make use of those lands than to meet
the growing demand that we are seeing for trails brought forth by
the Americans' most popular outdoor fitness pastime.
49
With the proper program to facilitate the conversions of these
miles, the possibilities are endless. I think one of the most signifi-
cant aspects of this legislation is it recognizes the role that the
State and the local governments and the organizations can play in
the trail development stage.
State and local agreements often do not have the ability to ac-
quire the lands for trail development on their own, and so these
two bills enable the Secretary of Interior to allow States and local
governments to manage portions of the right-of-way. Such a system
enables our State and local governments and organizations to ac-
quire trail lands which otherwise they would not ever be able to
achieve.
The bill's revolving loan fund would also serve as a means by
which State and local governments and trail groups could purchase
trails. In many instances a local government or organization is not
able to muster the funds necessary in the restrictive time period
that the Interstate Commerce Commission allows. The loan fund
would give these groups greater flexibility and much more time to
coordinate the monies that they know they have access to but per-
haps not at a short notice of time.
Furthermore, sums borrowed from the fund would be paid back
for others to use.
I think we have seen in the last 20 years a tremendous number
of Americans participating in hiking or walking for pleasure. It has
almost more than tripled than in the past, while we find runners,
bikers, and horseback riders are now approaching many of their
local elected officials with a unified voice on finding trails and
more areas for them to utilize.
I think these two bills provide a mechanism whereby govern-
ment can couple the abandoned rail right-of-way with the growing
demand for trails at little cost to the Federal Government.
I can remember testifying in Annapolis about 12 to 15 years ago
on a trail right-of-way bill for the Maryland State Physical Fitness
Commission, so it is not something that I have gotten involved in
just recently. It goes way back.
Mr. Chairman, in closing, I would like to say that I am very ex-
cited about the prospect of your legislation. As you know, we will
be holding hearings on our side in the Parks and Public Lands Sub-
committee on March 17, and I very much look forward to a positive
effect on these two bills with the development of our trail network
and trail system nationwide.
[The prepared statement with attachment submitted by Mrs.
Byron follows:]
50
STATEMENT FOR REPRESENTATIVE BEVERLY BYRON
SENATE RAILS TO TRAILS HEARING, S.1544
MARCH 3, 1988
THANK YOU, MR. CHAIRMAN.
I AM PLEASED TO BE HERE TO DISCUSS AN ISSUE OF GREAT PERSONAL
INTEREST TO ME--THE PRESERVATION AND EXPANSION OF AMERICAN
TRAILS. AS A HIKER MYSELF, I AM ESPECIALLY GLAD TO HAVE THE
OPPORTUNITY TO LEND MY SUPPORT TO S.154 4, THE SENATE COMPANION
TO A BILL THAT I HAVE INTRODUCED, H.R. 2641. THESE BILLS, AS
MANY HERE ALREADY KNOW, WOULD PROVIDE FOR THE CONVERSION OF
ABANDONED RAIL RIGHTS-OF-WAY TO TRAIL USE WHENEVER POSSIBLE.
WHEN SUCH A CONVERSION IS NOT FEASIBLE, THE RIGHT-OF- WAY CAN BE
SOLD, THE PROCEEDS FROM WHICH WOULD BE PLACED IN A TRUST FUND TO
BE USED FOR THE PURCHASE OF LAND FOR TRAILS NATIONWIDE.
IN MY EYES, THE CONVERSION OF THE RIGHTS-OF-WAY IS AN ISSUE WITH
WHICH FEW CAN ARGUE. THESE LANDS WERE ORIGINALLY GIVEN BY THE
GOVERNMENT TO THE RAILROAD COMPANIES IN THE HEYDAY OF RAIL
EXPANSION FOR THE PURPOSE OF RAIL CONSTRUCTION. SINCE THAT
TIME, MANY MILES OF THE ISSUED RIGHTS-OF-WAY HAVE BEEN ABANDONED
AND SHOULD NOW BE PUT TO GOOD PUBLIC USE.
MANY OF THESE TRACTS LEND THEMSELVES WELL TO TRAIL CONVERSION...
AND WHAT BETTER WAY TO MAKE USE OF THESE LANDS THAN TO MEET THE
GROWING DEMAND FOR TRAILS BROUGHT FORTH BY AMERICA'S MOST
POPULAR OUTDOOR FITNESS PASTIMES?
WITH THE PROPER PROGRAM TO FACILITATE THE CONVERSION OF THESE
MILES, THE POSSIBILITIES ARE ENDLESS. PERHAPS ONE OF THE MOST
SIGNIFICANT ASPECTS OF THIS LEGISLATION, IS THE RECOGNITION OF
THE ROLE THAT STATE AND LOCAL GOVERNMENTS AND ORGANIZATIONS CAN
PLAY IN TRAIL DEVELOPMENT.
STATE AND LOCAL GOVERNMENTS OFTEN DO NOT HAVE THE ABILITY TO
ACQUIRE LANDS FOR TRAIL DEVELOPMENT ON THEIR OWN. S. 1544 AND
H.R. 2641 ENABLE THE SECRETARY OF THE INTERIOR TO ALLOW STATE
AND LOCAL GOVERNMENTS TO MANAGE PORTIONS OF RIGHTS-OF-WAY. SUCH
A SYSTEM ENABLES STATE AND LOCAL GOVERNMENTS AND ORGANIZATIONS
TO ACQUIRE TRAILS LANDS WHICH OTHERWISE THEY WOULD NOT BE ABLE
TO.
THE BILL'S REVOLVING LOAN FUND WOULD ALSO SERVE AS A MEANS BY
WHICH STATE AND LOCAL GOVERNMENTS AND TRAIL GROUPS COULD
PURCHASE TRAILS. IN MANY INSTANCES, A LOCAL GOVERNMENT OR
ORGANIZATION IS NOT ABLE TO MUSTER THE FUNDS NECESSARY IN THE
RESTRICTIVE TIME PERIOD THAT THE INTERSTATE COMMERCE COMMISSION
ALLOWS. THE LOAN FUND WOULD GIVE THESE GROUPS GREATER
FLEXIBILITY AND MORE TIME TO COORDINATE MONEY THAT THEY KNOW
THEY HAVE ACCESS TO BUT PERHAPS NOT AT SHORT NOTICE.
FURTHERMORE, SUMS BORROWED FROM THE FUND WOULD BE PAID BACK FOR
OTHERS TO USE.
51
STATEMENT FOR REPRESENTATIVE BEVERLY BYRON
RAILS TO TRAILS HEARING, S. 1544
MARCH 3, 1988
PAGE 2
IN THE LAST TWENTY YEARS, THE NUMBERS OF AMERICANS PARTICIPATING
IN HIKING OR WALKING FOR PLEASURE HAS MORE THAN TRIPLED, WHILE
PARTICIPATION IN BIKING HAS QUADRUPLED. AS A RESULT, HIKERS,
RUNNERS, BIKERS AND ALSO HORSEBACK RIDERS ARE NOW APPROACHING
THEIR ELECTED OFFICIALS WITH A UNIFIED VOICE CALLING FOR MORE
TRAILS. S. 1544 AND H.R. 2641 PROVIDE A MECHANISM WHEREBY THE
GOVERNMENT CAN COUPLE THE ABANDONED RAIL RIGHTS-OF-WAY WITH THE
GROWING DEMAND FOR TRAILS--AND AT LITTLE COST TO THE FEDERAL
GOVERNMENT .
MR. CHAIRMAN, IN CLOSING, I WOULD LIKE TO SAY HOW EXCITED I AM
ABOUT THE PROSPECTS OF THIS LEGISLATION. AS YOU MAY KNOW, H.R.
2641 WILL BE THE SUBJECT OF A HEARING IN THE PARKS AND PUBLIC
LANDS SUBCOMMITTEE OF THE HOUSE INTERIOR COMMITTEE ON MARCH 17.
I AM VERY MUCH LOOKING FORWARD TO THE POSITIVE EFFECTS THAT S.
1544 AND H.R. 2641 WILL HAVE ON THE DEVELOPMENT OF TRAILS
NATIONWIDE,
52
Congressional Research Service
The Library of Congress
J*uly 17, 1987
Wathinfton. D.C. 20540
To: Honorable Beverly B. Byron
Attention: Beth Dillon
From: American Law Division
Subject: Taking Issues EUised by Draft Trails Bill
You have asked us to give you an opinion as to whether a draft bill that
proposes the retention by the federal government of title to rights of way
across federal lands constitutes a "taking" of property for which compensation
is owed under the Fifth Amendment of the Constitution.
As you can see from the enclosed report, Congress has at various times
authorized rights of way across federal lands, with the federal government
retaining title to all property interests except the easement rights granted,
and retaining title to the reversionary interest when the rights of way are no
longer used for the purposes granted. In a 1922 statute. Congress provided for
the disposition of the federal reversionary interest in railroad rights of way
by providing, basically, that title to an abandoned or forfeited railroad right
of way would be divided between adjacent landowners.
The draft bill prospectively makes a different disposition of the federal
interest — retaining title to abandoned or forfeited rights of way in Che
federal government in order to facilitate their subsequent use as part of the
National Trails System. The bill does not affect existing, vested titles, and
there can be no doubt that the federal government can make whatever disposition
of its own property it chooses. Under Art. IV, section 3 of the Constitution,
53
CRS-2
Congress hat Che power to nake all needful regulacion* respeccing federal
property.
Therefore, we conclude that the draft bill does not "take" any private
interest in property.
We hope this infomation is helpful to you.
V
Pamela Baldwin
Legislative Attorney
July 17, 1987
54
Congressional Research Service
The Library of Congress
WMhlngton, O.C. 20540
FEDERAL RAILROAD RIGHTS OF WAY
Pamela Baldwin
Legislative Attorney
American Law Division
February 2, 1984
55
Executive SuoMAry
During the drive to aettle the western portion of the United State*.
Congress sought to encourage the expanalon of rallroada, at first throi^h
generous granta of rlghta of way and lands to the great transcontinental
railroads between 1862 and 1871, and later through the enactaent of
a general right of way statute. The 1875 General Railroad Right of Way
Act pemltted rallroada to obtain a 200-foot federal right of way by running
tracka acroaa public lands. Soae railroads also obtained a right of way by
private purchaae or by exerclalng state or federal powers of eminent
domain. Therefore, the property Interest of a railroad In a particular
right of way may vary. The courta have characterlced the Interest held
by a railroad purauant to a federally granted right of way as a "limited
fee' In the case of a land grant right of way, or ae an easement In the case
of a right of way under the 1875 Act.
Whether a particular railroad obtained a federal right of way as part of
a land grant or under the 187 5 Act, the grants have been Interpreted as being
conditional, with a reversionary Interest In the United Statea; that Is, If
the right of way ceases to be used for railroad purposes, the granted Interest
reverts to the United States, and Congress may provide for Its disposition.
As railroads cloaed rail lines, questions arose ss to the disposition
of the lands within the former rights of way. Many individual inatances were
resolved in separate legislation. In 1922, Congress enacted general legislation
to provide that former railroad rights of way become the property of the
adjacent landowner or municipality through which the right of wmy passed.
This legislation is ambiguous in several respects, particularly as to what
procedures are sufficient to constitute an abandonment of a right of way
for purposes of triggering the statute.
Controversies continue to arise surrounding the disposition of rights of
way, because of issues aa to the nature of the interest held by the railroad,
the validity of possible attempts by the railroad to convey all or part of that
interest, ambiguities associated trith dating abandoment for purposes of the
federal disposal statute, and disputes between adjacent landowners over perceived
entitlements to lands within • particular right of way.
56
FEDERAL RAILROAD RIGHTS OF WAY
The Middle of the nlneceenth century tdtaessed • burst of federal leglala-
1/
tlon fostering the construction of major railroads In America. Many factors
contributed to this legislative Initiative, among them the discovery of gold
In California, the Impending civil %rar , the absence after secession of opposing
votes by southern states, and a desire to encourage the settlement end development
of the vast new western territories, thereby Increasing tax revenues, opening
markets, and providing more adequately for the defense of the West. There
tMs also, of course, the Judgment that transcontinental rail lines could not
be built without substantial Federal assistance. The grants sometimes consis-
ted only of a right of way across public lands, but sometimes also Included a
greater subsidy In the form of additional grants of land, financial support,
or both. Some grants were made to states to be conveyed by them to a railroad
company upon completion of specified segments of line. Other grants were made
to railroad corporations directly. Usually this latter course was followed
if the route was to cross territories rather than states. Typically, in this
latter Instance, a federally chartered corporation was created by the same
legislation that established the land grants.
SevAal transcontinental railroads were authorized %rlthln the same decade,
y
including the Union Pacific/Central Pacific in 1862, and 1864, the Northern
y See J.B. Sanborn, Congressional Grants of Land in aid of Railroads;
P.W. Gates, History of Public Land Law Development, ch. XIV (1968).
y Act of July 1, 1962, ch. 120, 12 Stat. 489 and Act of July 2, 1864, ch .
216, 13 Stat. 356.
57
CRS-2
3/ ♦/
Pacific la 1864, the Atlantic and Fkclflc In 1866. and the T^u. Pacific In
1671. The tcna of granta varlad, but all racalvcd a right of way and aoma
additional land granta. Other, nontranacontlnental railroad* alao received
granta to begin operation.
By the tine the fourth tranacontlnantal line waa authorised In 1871,
vehenent oppoaltlon waa developing to the rallroada that only a few ahort
yeara before had received euch enthualaatlc aupport . As one hlatorlan put It
when the West "... aaw evidence that railroads were not prompt In bringing their
lands on the narket and putting then Into the handa of farm nakera, the
Weat turned from warm friendship to outright hoatlllty to railroads."
This hostility was reflected In a cessation of Congreaslonal land
granta to railroads. Congreaa did, however wish to continue to encourage
the expansion of railroads across the western lands. Special acta continued
to be passed that granted a right of way through the public lands of the United
States to designated rallroada, but this approach waa burdensome. Congress
had enacted provisions granting a right of way for the construction of
"highways" over public lands not reserved for public uses, and in 187S
If
enacted a statute known as the "General Railroad Right of Way Act."
3/ Act of July 2, 1864, ch. 217, 13 Stat. 365 (1864^.
4/ Act of July 27, 1866, ch. 278, 14 Stat. 292.
5/ Act of March 3, 1871, ch. 122, 16 Stat. 573.
£/ GATES, supra at 380.
1/ See Cong. Globe, 42d Cong.. 2d Sess.. 1585 (1872).
8/ See e.g. Act of March 3, 1855. ch. 200, 10 Stat. 683, and Act of July
26. 1866, ch. 262, 14 Stat. 253, R.S. 2477.
9/ Act of Harch 3, 1875, ch. 152, 18 Stat. 482. repealed and superseded
by Act of October 21, 1976, Pub. L. 94-579, 90 Stat. 2793.
58
CRS-3
Thl* Act granted a right of way two hundred feet wide acroaa public landa
and aa codified at 43 U.S.C. 934 atatea In pertinent part:
Tbe riffht of way throufh the public Undi of tht UaiUd SUUs it
rnotcd to any railroad company duly orgaDixed under th* lawt of
any Sute or Territory, except the District of Columbia, or by the
CoDfrei* of tbe United SUtea. which shall have filed with the Secre-
tary of the InUrior a copy of iU articles of incorporation, aod due
proofs of iU orranization under the same, to the extent of one hun-
dred feet on each side of the central line of said read ; also the rirht
to take, from the public lands adjacent to the line of said road, ma-
terial, earth, stone, and timber necessary for the ceastmction of said
railroad ; also ground adjacent to such right of way for sUtion build-
ings, depots, machine shops, side tracks, turnouts, and water stations,
not to exceed in amount twenty acres for each station, to the extent
of one station for each ten miles of its road.
Rallroada also acquired some rights of way through the exercise of state
po<er of ealnent domain and through the exercise of federal power of eminent
domain. In addition, some rlghta of way were alaply purchaaed by the rallroada.
In the latter Instance, the railroad obviously cotild hold full title to the
right of way and the federal government none. In thoae Inatances In which
the right of way was obtained by an exercise of the federal power of eminent
domain, one would have to examine the particular authority for that exercise
and also the particular condemnation proceedings to determine the scope and
conditions of the title the railroad obtained.
In those Instances In which the right of way was granted by the federal
goverment either as part of a land grant or under a right of way statute,
the federal government retains a property interest In the right of way.
The courts have Interpreted the Interest conveyed in federal railroad
rights of way In various ways. The Supreme Court has said that a pre-1871
59
CRS-4
10/
Tl^ht of way granted to a land grant railroad «•• a 'Halted faa", while
the right of «My granted under the 187S atatutc waa an casanent. More
recent caaea aeem to Indicate that the teralnology aay not be of vital
importance; the algnlflcancc of the tenia uaed dependa on the context In
vhlch an Inquiry arlaea.
It Bust be kept In alnd that when Congreaa granta land a, the grant la
both a grant of property and a law and, therefore, Congreaa la free to
apeclfy tense or elementa different froa thoae that otherwlae would apply
either by virtue of the common law or earlier atatutet. A railroad grant
alao may be both a grant of landa and a contractual agreement that becomes
11/
binding upon the performance of certain acta by a railroad.
A discussion of the property law teraa Involved aay be helpful at this
Juncture.
Usually when land Is granted to another owner, the conveyance la complete
and final. It Is possible, however, to convey lesa than full property rights,
or to convey title to a grantee In auch a manner that title may revert to the
grantor In some clrciinstances .
If the Interest conveyed Is only the right to use the land for a
particular purpoae , the Intereat la an easement. If the Intereat conveyed
«
la complete and Includea all rights associated with the property. It Is a
9
10/ Northern Pacific R. Co. v. Towneend. 190 U.S. 267, 271 (1903),
modified In Dnlted Statee v. Dnlon Pacific Railroad Co.. 353 U.S. 112 (1957).
11/ Great Northern Railway Co. v. United States. 315 U.S. 262, 271
(1941TT ^
12/ See Wyoalng v. Andrus. 602 F. 2d 1379 (lOth Clr . 1979).
13/ United States v. Northern Pacific Railway Co.. 256 U.S. 51 (1921)
60
CRS-5
"fte simple' • There can be • gradatloo of Intereece bctwen depending on
Che exclusivity of possession granted, the duration of the Intereat, and the
coaplctencss of the rights granted.
Both a 'fee" Interest or an casement may be conveyed in such a manner
that the grantor retains a 'reversionary' Interest in the property which
means that the property may In some clrctnstances revert to the grantor.
A grant may be made so that It continues only so long as some use or
clrcufflstaace continues and if that use or circumstance ceaaes, then title
reverts automatically to the grantor. This Is called a determinable grant.
Or a grant may be Interpreted as being made on the condition that If
'x" occurs, then the grant reverts to the grantor. This Is called a grant
on a condition subsequent.
The principal difference between these two types of granta Is that
In the former Instance, no action on the part of the grantor la necessary
to reassert title; title reverts by action of law as soon as the envisioned
use or clrciaastance ceases. In contrast. If the grant Is deemed to be a
grant on a condition subsequent, the grantor must take some action to
reassert title upon the breach (or fulfillment) of the condition (depending
on whether the grant and condition were worded positively or negatively).
This action usually takes the form of a Judicial proceeding to determine that
the terms of the condition have in fact been met or breached. If the grantor
Is Congress, however, that further action may be either through a Judicial
determination or legislative action by Congress.
Although the courts have struggled at times to articulate the scope
of the Interest held by a railroad purauant to the earlier land grant
legislation, the cases are clear that the right of way Interest, whether
limited fee or easement, is conditioned on the continued use of the right of
61
CRS-6
U/
«By for railroad purpoaea. If aa Intcrcat la granted on a condition:
"No axpresa provlalon for a forfeiture waa required to fix the rlghta of
Government. If an eatate be granted upon a condition aubaequent, no
expreaa tiorda of forfeiture or relnveatlture of title are neceaaary to
14/
authorize the grantor to reenter In caae of a breach of auch conditions."
Aa to how this further action waa to occur where the grantor was Congress,
the Supreme Court has stated:
In what manner the reserved right of the grantor
for breach of the condition must be asserted so as to
restore the estate depends upon the character of the
grant. If It be a private grant, that right muat be
asserted by entry or Its equivalent. If the grant be
a public one It must be asserted by Judicial proceedings
authorized by law, the equivalent of an inquest
of office at common law, finding the fact of forfeiture
and adjulging the restoration of the estate on that
ground, or there must be some legislative assertion of
ownership of the property for breach of the condition,
such as an act directing the possession and appropria-
tion of the property, or that it be offered for aale or
settlement. At common law the sovereign could not make
an entry in person, and, therefore, an office-found
was necessary to determine the estate, but, aa aaid
by this court in a late case , " the mode of asserting
or of resuming the forfeited grant is subject to the
legislative authority of the government. It may be
after Judicial investigation, or by taking possession
directly under the authority of the government with-
out these preliminary proceedings . "15 /
14/ The purposes of a railroad right of way may be Interpreted broadly to
mean»for purposes of public transportation. See Washington Wildlife Preserva-
tion. Inc. V. Minnesota, 329 NW 2d 544, 547 (Mlnne . 1983), cert, denied 51 Law
Week 3919.
15^/ Atlantic and Pacific Railroad Company v. Mingus, 165 U.S. 413, 427-
428 (1897).
16_/ Schulenberg v. Harriman, 21 Wallace (88 U.S.) 44. 63-64 (1874).
Q(;_/,A/. n _ R« -
62
CRS-7
Congress provided for the dleposlclon of the federal revcrelonary
interest In railroad rights of way In the Act of March 8, 1922. As
currently codified at 43 U.S.C. 912, the provisions state:
Whenever public lands of the United States have been or may d«
rranted to any railroad company for use as a right of way for Its
railroad or as sites for railroad structures of any kind, and use and
occupancy of said lands for such purposes has ceased or shall here-
after cease, whether hy forfeiture or by abandonment by aaid rail-
ro.nd company declared or decreed by a court of competent Jurisdic-
tion or by Act of Congress, then ond thereupon all right, title, inter-
est, and estate of the United States in said lands shall, except such
part thereof as may be embraced in a public highway legally estab-
lished within one year after the date of said decree or forfeiture or
abandonment be transferred to and vested in any person, firm, or
corporation, assigns, or successors in title and interest to whom
or to which title of the United States may have been or may be grant-
ed, conveying or purporting to convey the whole of the legal subdivi-
sion or subdivisions traversed or occupied by such railroad or rail-
road structures of any kind as aforesaid, except lands within a mu-
nicipality the title to which, upon forfeiture or abandonment, aa
herein provided, shall vest in such municipality, and this by virtue of
the patent thereto and without the necessity of any other or far-
ther conveyance or assurance of any kind or nature whatsoever:
Provided, That this section shall not affect conveyances made by any
railroad company of portions of its right of way if such conveyance
be among those which have been or may after March 8, 1922, and
before such forfeiture or abandonment be validated and confirmed
by any Act of Congress; nor shall this section affect any public
highway on said right of way on March 8, 1922: Provided further.
That the transfer of such lands shall be subject to and contain reser-
vations in favor of the United States of all oil, gas, and other miner-
als in the land so transferred and conveyed, with the rirht to prospect
for, mine, and remove same.
The statute is ambiguous as to which conveyances by a railroad are not
intended to be affected: those "which have been or may hereafter and before -
such forfeiture or abandonment be validated." The provision is also unclear
•B to what proceedings suffice to constitute abandonment "declared or decreed
HJ Ch. 94, 42 Stat. 414.
63
CRS-8
by • court of coapetent Jurladlctlon .' The Congrcsalonal debate on
the atatute waa limited and doea not provide clarlf Icatloa of the Intended
■eanlng. The Connlttee report Indlcatea:
It (••■•d to the coaalttt* that such abaadooad or forfaitad atrtpa
are of llttla or no value to tha Covamaant and that lo caaa of landa
m rural co«unltlaa thay ought In Juatlea to beeoaa tha property of tha
paraoo to whoa tha whole of tha legal aubdlvlaloB had been granted or
hla auccaaaor In lotaraet. Creating aueh relief In reality glvaa hla only
tha land covered by the original patent. The attention of the eoMlttaa
waa celled, howavar, to tha fact that In loaa caaea hlghwaya have been
aatabllahed on abandoned rlghta of waya or that It alght be dealreble
to eatabllah hlghwaya on auch aa aay be abandoned In the future. Recog-
nizing tha public intareat in tha aatabllahaant of roada , your coMlttae
aafaguardad auch rlghta by auueetlng tha aaendaentt ebove referred to
protecting not only roada now aatabllfhad but giving the public authorltlaa
one year' a time after a decree of forfeiture or abendonaent to eatabllah
a public highway upon any part of auch right of way. 19/
Although there is surprising little case law interpreting this section,
the courts apparently have interpreted it aa intended to embody with certain
modificatlooa the common law rule that land burdened with an easement
passes with a conveyance of fee to abutting legal subdivision or tracts
out of which it was carved, such that when the easement ceases, the subject
20/
land vests in the owner of that abutting tract.
Controversies also arose as to the authority of the railroads to convey
all or part of their interest in the rights of way, and the authority of
private citizens to obtain rights to property within the rights of way
through adverse possession or what night be characterised as "squatter's
rlg^s."
18/ Note that Congress authorized the Interstate Commerce Commission
to permit Railroad abandonments in the Act of February 28, 1920, ch. 91, 41
Stat. 477, currently codified at 49 U.S.C. 10903.
19/ S. Rep. No. 388, 67th Cong., 2d Seas. 1 (1922).
20/ See Fitz.gerald v. City of Ardmore, 281 F. 2d 717 (10th Clr . I960),
and Wyoming v. Andrue, supra, at 1384.
64
CRS-9
The Suprcae Court Interpreted the grant of • federal right of waj •«
a unit, no portion of which could be obtained for private purpoaea by
adverae poaaeaaion.
By granting a right of way four hundred feet In width,
Coogreaa auat be underatood to have conclualvely determined
that a atrip of that width waa neceaaary for a public work
of auch Inportance, and It was not conpetent for a court, In
the ault of a private party, to adjudge that only twenty-five
feet thereof were occupied for railroad purpoaes In the face
of the grant ... .21/
Similarly, the right of way purposea would be negated by the existence
of the power of Che railroad to alienate Che right of way or any portion
221
of It.
Despite the limitations on the alienability of federal rights of way,
the railroads purported to convey, and adjacent lando«mers continued to
encroach upon rights of way and claim rlghta thereto. From time to time
Congress fueled the fires by enacting legislation to legitimize both
23/
practices .
Congress also authorized railroads to dispose of lands within the rights
of way for highway purposes. In 1920, Congress authorized railroads
to convey to state, counties, or municipalities, portions of rights
2lJ Northern Pacific Railroad Company v. Smith, 171 U.S. 260, 275 (1898),
Northern Pacific Railroad Company v. Townaend. 190 U.S. 267 (1903), Kindred
v. Union Pacific Railroad Company, 225 U.S. 582 (1912).
22/ Townaend. supra at 271.
IV See e.g. the Act of April 28, 1904, ch . 1782, 33 Stat. 538
legalizing, validating, and confirming "all conveyances heretofore
made" by the Northern Pacific Railroad Company of land forming a part of
the right of way granted by the goverment provided that the conveyances
did not diminish the right of way to lesa than two hundered feet; and
the Act of June 24, 1912, ch. 181, 37 Stat. 138 legitimizing conveyances
made by the Union Pacific Railroad and certain others of landa within the
right of way granted the Union Pacific, and permitting adverse poaaession
clalma against the railroad in accordance with the laws of the state In
which the land la altuatcd.
65
CRS-IO
of my to be used •• public highways or streets provided the conveysnce
would Qot dlalnlsh the railroad right of way to less than 100 feet.
As codified at 43 U.S.C. 913, this provision reads:
S 913. CoDvaranc* bj land-trant rallroada of portlona of rl(hts-of
way CO Scats, county, or auBlelpallty
All railroad coapaDlaa to which graota for rlfhta of way through
cha public landa hava baan aada by Congraaa, or chair aueeasaora In
iocaraac or aaalgaa, ara auchorltad co ceD*ay to aay Scata, couoty,
or Bualclpallcy any pordon of auch rlghc of way to ba uaad as a
public highway or atraat: Provldad, That no auch convayanca ahall
hava cha affact Co dlalalah cha rlghc of way of luch railroad eoapaoy
CO a laaa widch Chan SO faac on aach lida of cha cantar of cha aaln
crack of cha railroad aa now ascabllthad and aalncalnad. 24/
25/
Section 16 of the Federal Highway Act of 1921 gave the consent of
the United states to any railroad or canal company to convey to the highway
department of any state "any part of Its right of way or other property In
that State acquired by grant from the United States ." Note that this
provision did not mention the necessity for retaining the central right of
way. It Is arguable, however, that because the railroad Is authorized only
to convey "property acquired" from the United States, the reversionary
Interest of the United States could not be conveyed. Therefore, either the
railroad must continue to use the tracks and immediate area necessary for
railroad 'purposes or, if that use ceased, the railroad could not convey the
*24/ Act of May 25, 1920, ch. 197, 41 Stat. 621.
25/ Act of November 9, 1921, ch. 119, 42 Stat. 212, currently codified
at 23 U.S.C. 316. The Act of August 27, 1958, Pub. L. 85-767, 72 Stat. 915.
which revised Title 23, added the words "or its nominee" after "of any State"
"ao that in those Instances where the county or other political subdivision
is the proper party to hold title to the right-of-way, such action can be
effected." H.R. Rep. No. 1938, 8Sth Cong. 2d Sess. 107 (1958).
66
CRS-ll
central core that had been used for thoae purpoaea. The legliiatlvc
hlacory off era no clarification of thla provlalon. Perhapa, reading
the two atatutes together, the 1921 enactaent ellalnated the apeclf Icatlon
that the retained central core be 100 feet In width.
Suamary
Although Congress has on several occasions addressed the disposition of
railroad rights of way, controversies may be expected to continue to arise
because of Issues as to the nature and source of the Interest held by a rail-
road, and the validity of attempts by the railroad to convey all or part
of that Interest, ambiguities associated with dating abandonment for purposes
of the federal disposal statute, and dlsputea between adjacent landowners
over perceived entitlements to landa within a right of way. Congress has
from time to time legitimized conveyances that othertdse would be Invalid,
and In other legislation has permitted certain general types of conveyances.
The legal status of land %rlthln any particular right of way therefore
depends on the Interest held by the railroad, the general and particular
applicable statutes, and the facts (especially as to dates) of a particular
sequence of conveyances •
Pamela Baldwin
* Legislative Attorney
Amerclan law Division
February 2. 1984
67
Senator Metzenbaum. Thank you very much, Congress woman.
I am looking forward to working with you, and I hope you can
move it forward on your side, and we will move it forward on our
side.
Mrs. Byron. Thank you very much.
Senator Metzenbaum. The next panel is Paul McCray, Steven
McKee, Derrick Crandall, Stuart Northrop, David Burwell, and
Susan Henley.
We are happy to have all of you with us today, and I will ask you
to confine your statements to 5 minutes, and if you go to 3 min-
utes, you get a medal of honor.
Paul McCray, we are happy to hear from you first, sir.
STATEMENT OF PAUL McCRAY, NORTHERN VIRGINIA REGIONAL
PARK AUTHORITY, FAIRFAX, VA
Mr. McCray. Mr. Chairman, my name is Paul McCray. It is a
pleasure to testify before you today on behalf of the Northern Vir-
ginia Regional Park Authority.
Converting an abandoned railroad right-of-way to a multi-use
trail can provide many unique opportunities and benefits to a com-
munity. The Washington and Old Dominion Railroad Regional
Park is an excellent example, which I am the manager of.
The W&OD trail is 44 miles long, runs from the City of Alexan-
dria out to Loudoun County, and along the way it runs through
three counties, two cities, five towns, and many communities.
When we are finished construction this year, we will have 44 miles
of asphalt trail and 31 miles of gravel horse trail and jogging path.
We estimate that over a million cyclists, joggers, hikers, horseback
riders, cross country skiers, and skateboarders use the trail every
year.
The most important benefit of the trail is as a recreational
outlet. It brings parkland to many areas where none would be
there anyway. Whether the people are out taking a leisurely stroll
for a few blocks or they are on a 30 mile bike ride, it is there for
them to use however they want.
During the week, the lunch hour is our busiest time on the trail
when all the office workers get out on their lunch hour and try to
relieve the stress of their workday.
Another major plus of the trail is the health benefit. Everyone
that uses the trail gets some sort of exercise. And the rail to trail
conversion is the best kind of trail because of the flat grade that
the trains needed provides a trail that anyone can use no matter
what their condition or circumstance is.
We have found economic benefits to our communities from the
W&OD trail. We have found that properties along the trail that
are for sale put signs in the back yard next to the trail as well as
the front yard next to the road, and we have seen ads in the news-
paper boasting of a property's prime location next to the W&OD
trail.
So if the location to the trail becomes a selling point and a
buying point, then I think this can only have a positive effect on
land values.
68
The local businesses have prospered along the trail also. We have
one little general store out in Loudoun County that has doubled its
business on weekends since the trail came through, and we have
one convenience store manager in Fairfax who has complained to
me that he can't keep enough staff hired for weekends because of
the trail traffic.
The operation of the trail is also an economic benefit to the com-
munity. Many people that have contacted me about rail to trail
conversions have worried about whether or not the operation of the
trail will be a financial burden to whatever agency is operating it,
and we have not had that problem on the W&OD because rentals
of pieces of property to local businesses and leasing of right-of-ways
to utilities has brought in more revenue than it costs to operate
and maintain the trail each year.
Some other benefits of the trail are in connecting parks and com-
munity centers to neighborhoods. We have ten such parks or com-
munity centers along the W&OD, and the trail also provides a safe
place for people to ride or hike or just walk away from our crowd-
ed, hazardous highways, which are just getting worse.
Just being discovered is the use of the W&OD trail as a commut-
er route, and the W&OD runs near four of the Orange Line Metro
stops, so it is starting to be used as a commuter route.
But the best thing about a trail like the W&OD is just the fact
that thousands of people every day can get out and use the trail
without paying a fee and without making reservations or driving a
long way to get there. They can just go out and have fun using it.
Thank you.
[The prepared statement of Mr. McCray follows:]
69
Northern Virginia oarreugwinslow
'— ' Executive Director
Regional Park Authority
Executive Director
DAVID V. BROWN
Operations Director
DAVID C. HOBSON
Created under the Virginia Park Authorities Act Capital Programs Director
5400 Ox Road • Fairfax Station, Virginia 22039 • Telephone (703) 352-5900
TESTIMONY OF PAUL MCCRAY, NORTHERN VIRGINIA REGIONAL PARK
AUTHORITY BEFORE THE SENATE COMMITTEE ON ENERGY AND NATURAL
RESOURCES, SUBCOMMITTEE ON PUBLIC LANDS NATURAL RESOURCES ON
THE BILL NUMBER S 1544.
March 3, 1988
Subcommittee on Public Lands
National Parks and Forests
Senate Committee on Energy and Natural Resource
Senate Dirksen, 308
Washington, D.C. 20510-6150
Mr. Chairman:
My name is Paul McCray. It is a pleasure to testify
before you on behalf of the Northern Virginia Regional Park
Authority. We believe that this bill is extremely important
to everyone.
Converting an abandoned railroad right-of-way to a
multi-use trail can provide many unique opportunities and
benefits to a community. The Washington and Old Dominion
Railroad Regional Park trail is an excellent example.
The W&OD trail is a 44-mile long trail, running from the
City of Alexandria, Virginia, to the Tovm of Purcellville in
Loudoun County, Virginia. The trail passes through or near
three counties, two cities, five towns and many communities.
When all improvements are finished later this year, we will
have 44 miles of paved trail and 31 miles of graveled horse/
jogging trail. We estimate that the trail is used by over 1
million hikers, cyclists, horseback riders, joggers, skate-
boarders and cross country skiers.
The most important benefit of the W&OD trail is as a
recreational outlet for the many people of Northern Virginia.
Whether they choose a leisurely stroll or a 30 mile bike
ride, all are free to use the W&OD in the manner they prefer.
The trail brings park land and recreational opportunities to
conmiunities and business districts where none previously
IMEIWIBERS - PARTICIPATING JURISDICTIONS
ALEXANDRIA ARLINGTON FAIRFAX COUNTY CITY OF FAIRFAX FALLS CHURCH LOUDOUN
David M. Pfitzker Paui J Gruber Barbara P Hitdretti C Barrie Cooit, M-D. Walter L Mess Dr James O Wiley
Barbara B- Lynch George C Towner, Jr Mimi J. Welcti Arttiur F, Little William E. Davies Ctiarles A, Bos
70
existed. Lunch hours are the busiest time during the week on
the W&OD trail as office workers escape the stress of their
jobs .
Another major plus of a trail such as the W&OD is the
health benefit. People who would otherwise just sit around .
are out walking, jogging and cycling. Everyone who uses the
VviOD experiences sore level of exercise, which in the long
run can only improve their health and physical condition.
Rails to trails conversions are especially beneficial because
the flat grade required by trains provides a trail that
people of all conditions and circumstances can easily use.
The economic benefits of a rail-trail are not always
easy to see, but there is evidence of a positive impact along
the W&OD trail in Northern Virginia. Homes for sale along
the W&OD now have "~or Sale" signs in the backyard next to
the trail as well as in front by the road. We have even seen
real estate advertisex.ents boasting of the property's prime
location next to the W&OD trail. If proximity to the trail
becomes a selling and buying point, then it should have a
positive effect on land values.
Businesses located near the trail also have been
affected by the large numbers of people using the W&OD. One
owner of a general store reports that his weekend business
doubles during good v;eather due to trail traffic. A con-
venience store manager complained to us once that he could
not hire enough er.plcyees to handle the trail business on
weekends .
There is an economic on the operation of the trail also.
It is always a concern that a rail to trail conversion might
be a financial drain on the agency charged with its opera-
tion. This is no longer a problem on the W&OD trail.
Rentals of park property along the trail to businesses and
leasing rights-of-way to utilities have brought in more
income then is necessary for operations and maintenance.
Many other benefits are derived fror. the W&OD trail. It
directly connects ten other parks and community centers, with
more planned in areas nov; being developed. The trail also
provides a safe pla:e to walk or ride bicycles, away from the
hazards of our crowded roads.
A use that is jv.st being discovered is the W&OD as a
bicycle commuter route. It runs within a mile or less of
fear Orange line I'etro stops and connects v/ith other trail
systerns to allov/ direct access to v-.'sshincton, D.C. But the
bast thing about the '■:iOZ trail is chat Lz's a place where
thousands of people £ day can ao to have fun and relax
v;ithout having to psy a fee, as well as x^■ithout having to
hassle getting there.
71
Senator Metzenbaum. Thank you.
I want to say to you, Mr. McCray, that I think you have a mag-
nificent trail, and I think it is beautiful both to ride on and run on.
I think it is a safe trail, although my poor wife had a bad accident
on it, but I do not blame the trail for her accident.
But she still would agree that it is a great trail in spite of the
accident that she had.
You are from Mansfield, OH? No, excuse me, Mr. McKee is from
Mansfield.
Thank you very much, Mr. McCray. We appreciate your support.
Steven McKee, Director of the Gorman Nature Center, Mans-
field, OH.
STATEMENT OF STEVEN M. McKEE, DIRECTOR, GORMAN NATURE
CENTER, MANSFIELD, OH
Mr. McKee. Thank you, Mr. Chairman and members of the sub-
committee.
My name is Steve McKee, and I am Director of the Gorman
Nature Center in the Richland County Park District in Mansfield,
Ohio, and we support S. 1544.
Mr. Chairman, you have made it clear to us today that trails are
extremely attractive and popular public recreation and conserva-
tion facilities. It seems that most of these are operated by local gov-
ernments, State and local governments. But even with strong local
support, there are many difficulties in creating a trail.
Because trails are important, important enough for Congress to
wisely pass the National Trails System Act, it is clearly appropri-
ate for Congress to take reasonable steps to address some of the
problems relating to trail creation. And that is why we are so excit-
ed about this S. 1544 bill, because it has the potential of creating
new trails, and also, I feel that it is designed to be deficit neutral,
too, which I appreciate.
Richland County is very interested in establishing a recreational
trail on 17 miles of railroad right-of-way belonging to the B&O
Railroad, now the CSX Corp. The ICC authorized the discontinu-
ance of service to this line, and we quickly recognized the recrea-
tion and the commuter potential of this corridor. Unfortunately,
we ran into a number of problems acquiring this right-of-way,
which is why my testimony is pertinent today.
First, we had to scramble to come up with a source of funds. And
I say scramble because counties generally lack sufficient advance
notice to plan ahead for the purchase of a rail corridor. Under ICC
regulations, we had but a few weeks to commit to this project
before the rail carrier had the right to sell part of the corridor to
adjacent land owners or to tear out bridges and culverts that would
be valuable for trail purposes.
Fortunately for us, the CSX Corp. was understanding in this
regard and supported extensions of time before the ICC, which has
allowed us to go to the Ohio Department of Transportation and the
Federal Highway Administration for funding.
Nevertheless, many are not so fortunate, and the revolving fund
which S. 1544 would establish would be an invaluable tool for State
and local recreation departments seeking quickly available funds to
72
acquire trails. Speaking from experience, we therefore wholeheart-
edly endorse the creation of the revolving fund for these acquisi-
tions.
The second major problem which we encountered is not ad-
dressed by this bill, but I think it should be addressed by amend-
ment. We were willing to purchase all the corridor from the CSX
Corp., all that they owned in fee, at full appraised value. However,
the railroad wanted approximately five times this amount and re-
fused to deal further. As a result, we are now in a potentially
costly and prolonged eminent domain action. There is much that
could and should be done at the Federal level about this problem.
Mr. Chairman, when a railroad line is approved for abandon-
ment by the ICC, a private party interested in acquiring the line
can request that the ICC compel the transfer of the line and ask
them also to set terms and conditions for the sale under U.S.C.
10905. But this privilege is not extended to public agencies seeking
to acquire similarly abandoned corridors. We think that Congress
intended public agencies to be treated in a comparable fashion
under statutes like Section 8(d) of National Trails System Act.
On its face, section 8(d) says that the ICC can authorize abandon-
ment but not before allowing private groups to seek the creation of
a trail.
The ICC, on the other hand, takes the position that they do not
have the authority to force the sale or even to set terms and condi-
tions. Why should a public agency such as ourselves, seeking a cor-
ridor for public use, be given virtually no ICC remedy while the
private parties seeking the corridor for private gain may be able to
compel a transfer at what ICC determines to be fair market value.
Such a regime only penalizes State and local taxpayers like us. A
transfer for alternative public use with adequate compensation is
no more of a burden on the rail industry than transfer for private
gain.
Moreover, preserving corridors for railbanking and future use
would serve the important Federal transportation policy interests
as well as recreational ends.
We therefore suggest you further improve the Trails Act with
amendments to existing Section 8(d) to provide that ICC has au-
thority and that they know they have the authority to set any dis-
puted terms and conditions on a rail-to-trail conversion.
I appreciate you letting me testify today, and I look forward to
cooperating with the subcommittee.
[The prepared statement of Mr. McKee follows:]
73
RICHLAND COUNTY PARK DISTRICT
2295 LEXINGTON AVENUE
(419) 884-3?e4 ^»^ENTE
MANSFIELD, OHIO 44907 i^^CfUREZMf
Testimony
before the Public Lands, National Parks and Forests Subcommittee
of the
Senate Energy and Natural Resources Committee
Steven M. McKee
Director, Gorman Nature Center
Executive Director, Richland County Park District
Richland County, Ohio
March 3, 1988
S. 1544, Trails System Improvements Act
Mr. Chairman and members of the Subcommittee, my name is
Steve McKee. I am the Director of the Gorman Nature Center and
the Executive Director of the Richland County Recreation and Park
District. We support S. 1544.
Mr. Chairman, it is freely admitted that trails are
extremely attractive and popular public recreational and
conservation facilities. Similarly, it is clear that many
aspects of trails are inherently local in nature. Put another
way, trails are generally only successful if they enjoy the
support of their host states or counties. But even with strong
local support, there are many difficulties in creating a trail.
Some of these difficulties involve problems with current federal
statutes and regulations, or are otherwise amenable to at least a
partly federal solution. Because trails are important, it is
clearly appropriate for Congress to take reasonable steps to
address some of the problems relating to trail creation which can
be helpfully dealt with at the federal level.
Richland County is very interested in establishing a
recreational trail on 17 miles of railroad right-of-way for which
Baltimore & Ohio Railroad (a unit of CSX Corporation) received
authority from the Interstate Commerce Commission (ICC) to
discontinue service about a year ago. Railroad rights-of-way are
generally very attractive for trail purposes because they are
already assembled corridors which follow a gentle grade and are
ideal for a number of recreational acitivities. This 17 miler
running south from Mansfield is an excellent example.
Unfortunately, we ran into a number of problems in acquiring this
right-of-way.
74
First, we had to scramble to come up with a source of
funds. I say scramble because Counties generally lack sufficient
advance notice to plan ahead for the purchase of a rail corridor,
and there is no assurance that we can get the necessary approvals
and obtain the necessary funds in the short period of time
available under ICC regulations before the rail carrier sells
parts of the corridor to adjacent landowners or tears out bridges
and culverts valuable for trail purposes. Fortunately for us,
CSX Corporation was understanding in this regard and supported
extensions of time before the ICC which allowed us to go to the
Ohio Department of Transportation and the Federal Highway
Administration for funding. Nevertheless, many are not so
fortunate and the revolving fund which S. 1544 would establish
would be an invaluable tool for state and local recreation
departments seeking quickly available funds to acquire rail
trails. Speaking from experience, we therefore wholeheartedly
indorse the creation of a revolving fund for these acquisitions.
The second major problem which we encountered is not
addressed by this bill. As it turned out, the Ohio Department of
Transportation and the Federal Highway Administration were
willing to purchase all the corridor which CSX owned in fee at
the full appraised value. However, the railroad wanted
approximately five times this amount and refused to deal further.
As a result, we are now in a potentially costly and prolonged
eminent domain action. There is much that could and should be
done at the federal level about this problem.
Mr. Chairman, when a railroad line is approved for
abandonment by the federal ICC, a private party interested in
acquiring the line to provide private rail service can request
the federal agency to compel the transfer of the line to the
private requester, and to establish all disputed terms and
conditions. Under this regime, which is codified at 49 U.S.C.
10905, the ICC does not require the acquiring party to pay more
for the corridor than the appraised value of what the railroad
owns in fee simple title plus the "salvage value" of any ties and
tracks transferred.
We think that Congress intended public agencies to be
treated in a comparable fashion under statutes like 49 U.S.C.
10906 and section 8(d) of the National Trails System Act, 16
U.S.C. 1247(d). Indeed, what is now § 10906 was added to the
statutes to confirm the authority ICC exercised in the so-called
Kenmore case, in which ICC did impose an arbitration remedy to
resolve any disputed terms and conditions and to compel a
transfer of a right-of-way which is now Seattle's famous Burke-
Gilman Trail. Section 8(d) on its face says ICC cannot authorize
an abandonment but must order a transfer for railbanking and
interim trail use on terms which the agency sets when a party
such as ourselves agrees to pick up future corridor costs.
75
ICC, however, takes the position not only that it will not
require a transfer to a public agency for public use and that it
will not set terms and conditions but also that it lacks
statutory authority to do so. Why should a public agency, such
as ourselves, seeking a corridor for public use be given
virtually no ICC remedy, while a private party seeking the
corridor for private gain be able to compel a transfer at what
ICC determines the minimum price required to avoid a "takings"
question under the Constitution? Such a regime only penalizes
state and local taxpayers. A transfer for alternative public use
with adequate compensation is no more of a burden on the rail
industry than a transfer for private gain. Moreover, preserving
the corridors for railbanking and future use would serve
important federal transportation policy interests, as well as
recreational ends.
We therefore suggest that you further improve the Trails Act
with amendments to existing sections 8(d) or perhaps 9(b) to
provide that ICC has authority, upon request of an interested
party, to establish any disputed terms and conditions of transfer
to a state or local government or qualified private organization
for alternative public use, including recreational trail use.
That would have helped us, and it still might, and it certainly
will help others in the future. Unless something like this is
done, many excellent trail opportunities will continue to be
lost.
Mr. Chairman, I appreciate this opportunity to testify on
behalf of Richland County and I look forward to cooperating with
the Subcommittee in the future. Thank you.
76
Senator Metzenbaum. Thank you very much, Mr. Mckee. We ap-
preciate your being here with us today.
Derrick Crandall, President, American Recreation Coalition.
STATEMENT OF DERRICK A. CRANDALL, PRESIDENT, AMERICAN
RECREATION COALITION
Mr. Crandall. Thank you, Senator. I am delighted to be here
today and delighted to share the platform here with somebody who
manages a centerfold.
As you may know, in the Executive Summary of the President's
Commission on Americans outdoors, we specifically talk about the
Western and Old Dominion Trail and have a picture of it here, so
it certainly is easy for us to relate to the wonders of that trail and
to the trails that you have experienced in Ohio and the trails that
many of us have experienced around the country.
We simply want to underscore today the importance that Presi-
dent's Commission on Americans Outdoors placed upon linear cor-
ridors. We believe that this nation is rich in a legacy of National
Forests and National Parks, of wild and scenic rivers and wilder-
ness areas, and it is our opportunity now in the 1980's to build
upon this legacy with the concept of greenways, and recreational
trails are clearly a major part of that greenway vision that the
Commission spoke to, and hopefully provide some pictures that will
help to move that vision into reality.
Trails have long been an important element of the outdoors for
Americans, but the volume and the diversity of use of trails has
exploded since 1960. Americans today enjoy trails for traditional
purposes such as wildlife viewing and hunting, accessing back
country campsites and quiet overlooks, and we use it for exercise as
joggers and as walkers. We use it to ride our horses and our bicy-
cles, our snowmobiles and our off-road vehicles as well as skiing on
trails and using roller skates and skateboards.
Unfortunately, the growth in the demand for trails has now been
a major priority for this Nation at any level. We have added more
people using trails in more ways, and the result has been social
safety and environmental conflicts.
We have also lost trails to conversion of urban and near urban
development, housing tracts, commercial establishments and a va-
riety of others. We have had budget problems which have further
whittled away the available trail supply.
What we need today is an aggressive effort to build a bigger pie,
a larger trail system which provides adequate quality opportunities
for all Americans in the full range of trail interests. To create this
bigger pie, it is clear that Americans need new tools, including
those which you have proposed in S. 1544.
We also think there are other tools, and we look forward to talk-
ing with you about a concept for a national recreational trust fund,
national recreation trails trust fund that would be able to tap into
the more than $80 million that are now paid in Federal gas tax re-
ceipts for fuel used in snowmobiles and motorcycles, all-terrain ve-
hicles and a variety of other powered recreational devices which we
think should be put more to recreational trail purposes, much as
77
Federal motorboat gasoline taxes now go to benefit fishing and
boating activities.
In conclusion, we thank you in particular, and this committee,
for the attention that you are giving to the importance recreation
trails play in our lives today, and to the even greater importance of
adding trails for Americans today and tomorrow. Increases in the
numbers of railroad abandonments that are converted to recre-
ational trails are important, and we need to pursue this aggressive-
ly-
Thank you.
[The prepared statement of Mr. Crandall follows:]
78
STATEMENT BY DERRICK A. CRANDALL, PRESIDENT OF THE AMERICAN
RECREATION COALITION, BEFORE THE UNITED STATES SENATE COMMITTEE
ON ENERGY AND NATURAL RESOURCES REGARDING S.1544, AMENDING THE
NATIONAL TRAIL SYSTEM ACT. (MARCH 3, 1988)
Mr. Chairman and distinguished Members, I am Derrick
Crandall and I am delighted to appear here today to offer my
support for S.1544, amending the National Trail System Act. I am
appearing today as a member of the President's Commission on
Americans Outdoors as well as in my capacity as President of the
American Recreation Coalition, a national federation of
associations and companies with an active interest in the
recreation opportunities open to Americans.
I applaud Senator Metzenbaum's action to take advantage of a
unique opportunity to enrich American's recreation legacy by
expanding our network of recreation trails. As my friend and
colleague Stu Northrop discusses in his testimony, Americans have
dramatically increased their participation in trail activities.
Accommodating this expansion has proven difficult, especially in
urban areas where linear blocks of undeveloped land are rare.
Yet where they exist, we see both tremendous popularity and a
remarkable ability to magnify the worth of existing recreation
areas by linking them together with a trail.
The President's Commission placed the highest priority on
steps to expand our linear recreation areas, including trails,
under the concept of greenways . Successful community-based
greenway networks can link where people live, work and play while
also offering aesthetic, environmental and wildlife benefits.
Greenways can also help integrate the bevy of public and private
recreation providers at work within each community, bringing
about the cooperation and partnership our report stressed would
be needed to meet America's outdoor needs in the next century.
The legislation proposed by Senator Metzenbaum and others
can be an important tool in expanding our networks of greenways.
It would assert the public's right to abandoned railroad rights-
of-way across the nation which, when originally established,
contained reversionary clauses which called for federal ownership
upon abandonment. The legislation provides for recreational use
of these corridors wherever feasible. If, however, the corridor
is judged unsuitable for recreational purposes, then the proceeds
from the sale of the corridor are to be placed in a special
revolving fund providing loans to aid states, counties and local
communities in acquiring trail corridors.
79
STATEMENT BY DERRICK A. CRANDALL
NATIONAL TRAIL SYSTEM ACT AMENDMENT
PAGE TWO
Trails have long been an important element of the outdoors
for Americans, but the volume and diversity of trail usage has
exploded since 1960. Americans enjoy trails today for
traditional purposes such as wildlife viewing and hunting,
accessing backcountry campsites and guiet overlooks. We also use
trails for exercise as joggers and walkers. We use trails to
ride our horses and our bicycles, our snowmobiles and our ORV's.
We ski on trails and roller skate on trails.
Unfortunately, the growth in our use and enjoyment of trails
has not been matched by growth in the nation's trail network. For
more than two decades, we have added more people^ using trails in
more ways to our existing trail network. The result has been
social, safety and environmental conflicts. Conversion of open
land to developed uses in and near our urban areas and budgetary
pressures on public land agencies have combined to whittle away
at the supply of recreational trails, probably more than
offsetting efforts to develop new trails along abandoned railroad
rights-of-way and other available corridors'.
This nation's trail enthusiasts need a "bigger pie" — a
trail system which provides adequate, quality opportunities for
the full range of trail interests today and tomorrow. The
"bigger pie" will allow each trail interest to have the slice of
the trail network it needs without robbing another trail
interest.
To create the "bigger pie," America's trails need new
"tools", including those proposed by S. 1544. With dependable
funding for corridor acquisition, development and operation, a
forum which draws together all trail interests and appropriate
public agencies, and lots of local energies, Americans of this
generation can add an important element to the rich legacy of
parks, forests and refuges we now enjoy, thanks to the vision of
earlier Americans.
*
The Congress will soon receive a proposal from the nation's
major trail interests to provide an additional, new "tool" for
trails which would complement those created under S. 1544.
Americans who enjoy motorized recreational trail activities
generate an estimated $83.5 million in fuel taxes annually as
they operate snowmobiles, motorcycles and ATV's. The fuel tax
they pay now goes to construct highways from which these vehicles
are barred. Faced with a similar dilemma affecting the nation's
boaters in 1984, the U.S. Congress transferred federal motorboat
fuel to the Aquatic Resources Trust Fund, commonly known as the
Wallop-Breaux Fund. This money is now regularly returned,
80
STATEMENT BY DERRICK A. CRANDALL
NATIONAL TRAIL SYSTEM ACT AMENDMENT
PAGE THREE
through matching grants to the states, to improve boating and
fishing opportunities. The program enjoys broad support among
conservationists, recreationists and the Congress for its
effectiveness and efficiency. Federal gas tax derived from
motorized trail activities should be treated similarly, we feel,
with the monies benefiting trails for all, motorized and non-
motorized through a federal grant program to states.
With some money to develop new trails, a number of options
arise. First, we can work to add trails close to people. These
trails can be "opportunistic." In some cases, they can utilize
existing corridors used for utilities and highways. In other
cases, they can be developed as open spaces are "converted to
housing and offices, schools and stores through local land use
planning efforts. Trails can be developed on privately-owned
lands, with owners consent, in return for current use property
taxation and/or assistance in controlling trespass and liability.
Some of the funds can also be used on public lands. The
nation's forest system now contains approximately 100,000 miles
of trails. Most of this network was not constructed to maximize
recreational experiences, however. Instead, these trails were
initially constructed for fire control purposes, or for access to
ranger cabins, or other purposes. It is possible, according to
knowledgeable Forest Service sources, to double the trail mileage
in the national forests with trail designed to accommodate
different recreational activities -- zoning by design.
In conclusion, Mr. Chaiman, we thank this committee for its
attention to the importance recreational trails play in our
lives, and to the importance of adding trails for Americans today
and tomorrow. We urge enactment of S. 1544 and your early
consideration of additional new trail tools as they are proposed.
Thank you.
Derrick A. Crandall
President
American Recreation Coalition
1331 Pennsylvania Avenue, NW, Suite 726
Washington, D. C. 20004
(202) 662-7420
81
Senator Metzenbaum. Thank you very much, Mr. Crandall.
Now we have Mr. Stuart Northrop of the Huffy Corp., Dayton,
OH, Chairman of the Executive Committee.
We are happy to have you with us.
STATEMENT OF STUART J. NORTHROP, CHAIRMAN, EXECUTIVE
COMMITTEE, HUFFY CORP., DAYTON, OH
Mr. Northrop. Senator, nice to be here.
It is a pleasure to appear here on behalf of your bill and in sup-
port of it.
In my brief testimony I would just simply like to relate to you a
little of the information on linear recreation that was brought to
the attention of the President's Commission on Americans Out-
doors, on which I had the pleasure of serving.
Traditionally, recreation has been thought of as occurring on
some confined plot of ground, and what was brought dramatically
to our attention on the Commission is the nature, the linear nature
of so much of recreation today, and how those major linear recrea-
tion activities are growing.
I have listed in my written testimony these, but clearly the par-
ticipation in them, such as walking and driving and bicycling and
jogging and running, where the participation figures are 53 percent
of all American adult population, are really dramatic figures and
indicate the diversity of the interests in this linear form of recrea-
tion, and the diversity of it.
I would also like to stress that those figures are for the adult
population, that if you were to include children, for instance, in bi-
cycling, where nearly every child in America bicycles, you included
children in the study, then the percentage of participation figures
would be even higher.
But your bill and the Trail bill you should keep in mind is reach-
ing a tremendous number of people of all ages. And that this group
with the interest in linear recreation is growing is also very impor-
tant. Twenty-five years ago, when the Rockefeller Commission on
Outdoor Recreation reported figures on bicycling, in 1960, only 9
percent of American adults were participating in bicycling, and
that has continued to grow since then.
Senator, when we built our plant in Salina, OH in the late
1950's, we produced 1000 bicycles a day, that is about 200,000 a
year, and less than 10 percent of them were sold to adults. Today,
in Salina, OH, where we produce all of our Huffy bicycles, we are
producing 15,000 bicycles a day, that is, 3 million bicycles a year,
and 30 percent of them are being sold to adults.
The fastest growing segment of the bicycle business is the trail
bikes, which have captured 15 percent of the market. So the point
is that these activities are really dramatic growth areas in recrea-
tion, and they require a linear passage, and that linear passage is
becoming more and more difficult to obtain.
The reason for this growth was made clear in the President's
Commission's report, and I do not need to repeat all of them, but I
would like to summarize them in one sentence. Americans of all
ages love the great outdoors in this country, and they want to expe-
rience it in an increasing diversity of recreational activity.
82
As I see it, this is what your Senate bill 1544 is all about, provid-
ing Americans with opportunities to enjoy the great American out-
doors in a way that they choose. More and more of them are choos-
ing linear activities, and these activities require that linear pas-
sage, that linear corridor.
I stress Americans of all ages because we have an aging popula-
tion, and it is the linear activities, the walking and the bicycling
and the hiking and the backpacking that appeal to so many people,
both the young and the old, and attributes to a major factor for
that growth.
The President's Commission really presented a challenge to the
people of this country, lead your community to create the kind of
recreational opportunity that you want. Communities across this
country are rising to that challenge.
You mentioned the Little Miami River, and I had the pleasure of
addressing their 25th anniversary dinner not too long ago, and that
is a great nonprofit organization, and you know the fine work they
have done in Ohio, and they need this kind of help, and your reach-
ing out to try to help them in this way is so important for a non-
profit organization that is working primarily with private funds,
and they need this kind of help.
I see in this proposed legislation the kind of help that they and
communities throughout this country are seeking. I think that it
will provide great stimulus for local initiatives, and to do it without
new Federal expenditures. In my opinion, the bill places the re-
sponsibility for the initiatives and for the implementation where
they should be placed, on the local communities, while at the same
time loaning them funds which the bill generates from the unused
Federal assets on an attractive basis to help the local communities
obtain their goal.
In the President's Commission report we talked about the need
for new, imaginative partnerships if the needs of Americans for
recreational opportunities close to home were to be met. This legis-
lation proposes one of the kinds of Federal partnerships with local
communities across the country that we on the Commission had in
mind.
On behalf of my fellow Commissioners, but more importantly, on
behalf of Americans who love the outdoors and want the opportuni-
ty to experience it all during their lifetime, I thank you for the
concepts in this bill, and I urge you to work for its enactment.
Thank you, Senator.
[The prepared statement of Mr. Northrop follows:]
83
S.1544 - A BILL TO AMEND THE NATIONAL TRAILS SYSTEM ACT
TESTIMONY - STUART J. NORTHROP
March 3, 1988
Chairman - Executive Committee
HUFFY CORPORATION
DAYTON, OHIO
It is a pleasure to appear before you on behalf of the
recreationists of this country in support of S.1544.
In my brief testimony I would like to relate to you a little
of the information on linear recreation that was brought to the
attention of the President's Commission on Americans Outdoors on
which I had the pleasure of serving. Traditionally recreation
has been thought of as occurring on some confin&d plot of ground.
What was stressed to us on the Commission was that many of the
faster growing recreational activities are linear in nature.
I would like to list the major linear recreational
activities for you, merely to give you some sense of their
diversity and the high degree of participation. This is 1982
data and the percentages refer to that percentage of the adult
U.S. population that participates in that activity.
Walking 53%
Driving 48%
Bicycling 32%
Running/Jogging 26%
Hiking 14%
Off-Road/Snowmobiles 14%
Horseback Riding 9%
Canoe/Kayak/Rafting 8%
Backpacking 5%
Cross-Country Skiing 3%
I would like to stress that these percentages are of the
adult population. For example, if children were included the
figure for bicycling, and many of the others, 'would be
significantly higher, because almost 100% of all children ride a
bike.
I would also like to stress that these linear recreational
activities are growing. Twenty five years ago the Rockefeller
Commission on Outdoor Recreation reported figures for 1960 where
adult participation in bicycling was a mere 9%. Adult
participation in these activities has grown and is continuing to
grow. The current high growth of mountain (trail) bikes is just
one example of that continuing growth and continuing diversity.
84
The reasons for this growth are made clear in the
President's Coiranission Report. They are many, but I would like
to summarize them by simply saying, "Americans of all ages love
the Great Outdoors in this country and they want to experience it
in an increasing diversity of recreational activities." As I see
it that is what this Senate Bill 1544 is all about. Providing
Americans with opportunities to enjoy the Great American Outdoors
in a way that they choose. More and more of them are choosing
linear activities and these activities require linear passage
across the land. The passage is becoming more and more difficult
to obtain.
I said "Americans of all ages". That is important. One of
the reasons that linear recreation may be growing faster than
other recreational activities is that these, in particular,
appeal to all ages and especially to our identified 'aging
population' . Walking, hiking, bicycling, backpScking, etc. are
clearly for participants of all age groups and they also require
minimum investment and thus are for participants of all levels of
economic means.
But they do require access to a linear passageway — a trail
or path or lane. And it was made clear to the President's
Commission that Americans want to do a majority of their
recreational pursuits close to home. For most Americans that
means close to the cities and towns of the country.
So the President's Commission presented a challenge to the
people of this country: lead your community to create the kind
of recreational opportunity that you want. Communities across
this country are rising to that challenge. But they need
assistance. I see in this proposed legislation the kind of help
that they are seeking. I think that it would provide great
stimulus for local initiatives and do it without new federal
expenditures. In my opinion the bill places the responsibility
for the initiatives and the implementation where they should be
placed: on the local communities, while, at the same time,
loaning them funds (which the bill generates from unused federal
assets) on an attractive basis, to help the local communities
attain their goals.
In the President's Commission Report we talked about the
need for new, imaginative partnerships if the needs of Americans
for recreational opportunities close to home were to be met.
This legislation proposes one of the kinds of federal
partnerships with local communities across this country that we
had in mind. On behalf of my fellow Commissioners, but more
importantly on behalf of the Americans who love the outdoors and
want the opportunity to experience it all during their lifetime,
I thank you for the concepts in this bill and I urge you to work
for Its enactment.
85
Senator Metzenbaum. Thank you very much, Mr. Northrop.
Mr. Northrop, tell me, what is a trail bike?
Mr. Northrop. A trail bike is a bike that has been built really
for off-road use. It has a stronger frame, it has got straight up han-
dlebars and a larger saddle. It has usually 15 or 18 gears so that
you get low speeds for rougher terrain, and it has really been de-
signed for riding trails.
It can be used on regular bikeways, paved bikeways, and it is
very great. A lot of people prefer sitting up straight to the 10-speed
where they have what we call the Maze handlebar where they
leaned over. And particularly older people prefer the straight up
bike. But many younger people now are enjoying the ruggedness of
the trail bike and using it on trails throughout this country.
Senator Metzenbaum. Thank you very much.
I have a 10-speed, but I did not know what a trail bike was.
Mr. David Burwell, President of the Rails-to-Trails Conservancy,
Washington, DC.
STATEMENT OF DAVID G. BURWELL, PRESIDENT, RAILS-TO-
TRAILS CONSERVANCY
Mr. Burwell. Thank you, Mr. Chairman.
My name is David Burwell, and I am President of the Rails-to-
Trails Conservancy, which is a nonprofit, nationwide conservation
organization dedicated to the preservation of abandoned and about-
to-be-abandoned rail corridors for recreation, conservation and his-
toric preservation.
In preparation for this hearing, we prepared a map of all the ex-
isting and in process of conversion rail-trail projects in the United
States. There are about 150 rail-trails in existence, and an equal
number in the process of conversion, and I th^nk it indicates the
support this concept has throughout the country, and we would
like this map to be made a part of the record, if you do not mind.
Senator Metzenbaum. Without objection, it will be.
Mr. Burwell. The President's Commission on Americans Out-
doors, in its final report, stated unequivocally that, and I quote,
"thousands of miles of abandoned rail lines should become hiking,
biking and bridle paths." Two Senators on this committee were
members of that commission, Senators Johnson and Wallop, and
we appreciate Senator Johnston being a cosponsor of this bill, and
we hope that this — I think it is very appropriate that this legisla-
tion be considered by this committee.
I would like to talk just briefly about the benefits of rail-trails. In
the West, the rail corridors were laid down before the land was set-
tled. As a result, the rights-of-way, which are fenced, have some-
times the only remaining remnants of the original prairie habitat,
and these corridors, besides providing public access, are extremely
valuable from an ecological standpoint.
They also follow the traditional migration routes, the Oregon
Trail, the Santa Fe Trail, the Mormon Trail, the Lewis and Clark
Trail, and as these corridors are abandoned for rail use, we have
the opportunity to actually create a system of historic national
trails of tremendous proportion, and it should not be lost.
86
In the East, the railroads were often built right on top of the pre-
existing canal system. We used to have a tremendous system of
canals in the United States. The railroads were actually built in
the canal beds, and as the rail corridors are abandoned, we have
the opportunity to create an amenity like the C&O Canal Park
here in Washington, DC, throughout the East. It is an absolutely
tremendous resource. The corridors mostly are built along
streambeds, too, and riverbeds, so it is very high quality habitat.
Nationwide, we built about 292,000 miles of steam and electric
railroads in the United States. We are now at about 140,000 miles,
so we have abandoned already about 50 percent of our corridors,
and we are fading fast. There is going to be maybe a 100,000 mile
core system by the year 2000.
S. 1544 addresses a subset of these corridors, about 30,000 miles
of federally granted railroad rights-of-way, rights-of-way that were
granted over federally owned property. What this bill does, in a
nutshell, is stops a giveaway of a very valuable Federal asset.
Back in 1922, Congress passed a law giving away the Federal in-
terest in these corridors upon abandonment for railroad use, think-
ing that they were not, these corridors were not very valuable.
Now we know absolutely that they are very valuable. Congress has
stated unequivocally that it is national policy to preserve our na-
tional built rail system, and therefore, it is appropriate prospective-
ly to void the giveaway and recapture this interest for the Federal
Government.
The previous witnesses, the administration witnesses, would like
us to delay enactment until the legal issues regarding the title to
federally granted rights-of-way are cleared up. With all due respect
to the administration. Senator, this I think would have all the
effect of rearranging the deck chairs on the Titanic.
These corridors are being lost on a daily basis, and we cannot
wait until the exact nature of these interests are absolutely crystal
clear or we will have nothing left to save.
I would like to quote from just one legal opinion. State of Idaho
V. The Oregon Short Line Railroad Company, which can be found
at 617 F. Supp 207, an Idaho case. Judge Callister there, in address-
ing the nature of the Federal interest in these federally granted
corridors, said, and I quote:
The precise nature of that retained interest need not be shoehorned into any spe-
cific category cognizable under the rules of real property law. Regardless of the pre-
cise nature of the interest, Congress clearly believed that it had authority over 1875
Act railroad rights-of-way. Sections 912, 913 and 316, which address these corridors,
evince an intent to ensure that railroad rights-of-way would continue to be used for
public transportation purposes.
And this is exactly what this bill does. Senator. It seeks to pre-
serve these corridors for public recreation.
The bottom line is that Congress did give an easement for trans-
portation purposes, and it has the power to redefine that easement
as long as that easement exists. It has done that in section 913 of
title 43 where it said a federally granted right-of-way for railroads
can be changed to an easement for a public highway, and that
easement will continue even after abandonment of the corridor for
railroad use.
87
So Congress does retain that interest, and this bill simply rede-
fines that interest to say when you do not need it for railroads any-
more, we are going to take it back, we are going to make trails and
greenlands out of it.
Funding is also critical, Senator. The cost of building new trails
is very high. The Georgetown Spur that was referred to by Director
Mott, it is an 11-mile corridor. The value of that corridor is, de-
pending on whether you talk to the Park Service or the railroad, is
somewhere between $15 and $80 million.
We need new funding, and the small amount of Federal funding
that is needed to get this pump primed and get this program start-
ed, about $1 million, is insignificant compared to the millions,
maybe hundreds of millions of dollars that could be reaped by re-
capturing this Federal interest.
This Federal Government is not doing enough now to preserve
the Federal interest in these corridors. The Park Service is trying
to help, but it has no budget to do it. The Interstate Commerce
Commission, frankly, is not trying to help. It seems absolutely un-
interested in what happens to these corridors after abandonment
for rail use. If anything is going to happen to preserve these corri-
dors, it will have to be by this committee.
Thank you very much.
I would like to just quote again from the Commission, the Presi-
dent's Commission on Americans Outdoors, in its final report,
when it said imagine every person in the United States being
within easy walking distance of a greenway that could lead around
the entire nation. It can be done if we act soon.
S. 1544 is a firm step towards implementation of this vision, and
we strongly urge its enactment.
Thank you.
[The prepared statement of Mr. Burwell follows:]
88
statement of David G. Burwell, President
Rails-to-Trails Conservancy
Before the
Committee on Energy and Natural Resources
Subciommittee on Public Lands
S.1544 _ ^
National Trails System Improvement Act ^O
March 3, 1988
R^JLS
WMS
CONSERVANCY
Mr. Chairman, my name is David Burwell. I am President of
the Rails-to-Trails Conservancy, a non-profit, nationwide
conservation organization dedicated to the preservation of
abandoned and about-to-be-abandoned rail corridor for recreation,
conservation and historic preservation purposes. Conversion of
these corridors, where suitable, to trail use significantly
contributes to our nationwide trail system. We support S. 1544.
The Benefits of Rail-Trails
Railroad corridors have specific characteristics that
commend their preservation for continued public use upon
termination of rail service:
o Linear corridors are needed for recreation. A survey
conducted by the President's Commission on Americans
Outdoors, on which both Senator Johnston and Senator
Wallop of this committee served, found that the number
one new facility need of state and local recreation and
park directors was for "trails and trail-related
facilities."
o Rail corridors serve national conservation objectives.
Railroads tend to follow traditional migration routes
and low-lying areas along rivers. These riverine
corridors provide stream access for anglers, high
quality habitat for wildlife, and buffer zones for soil
erosion control. In the prairies of the midwest rail
corridors often contain the only remaining remnants of
the original prairie ecosystem, since rail corridors
have never been plowed .
o Rail corridors have historic value. In the west,
railroads were constructed along several of our
designated national historic trails such as the Lewis
and Clark Trail, the Oregon Trail, and the Santa Fe
Trail. When abandoned, these rights-of-way could serve
Suite 400 ♦ 1325 Massachusetts Ave.. NW ♦ Washington. DC 20005 ♦ 202-783-0980
89
modern-day pioneers wishing to trace these historic
routes. In the east, railroads were often constructed
within our pre-existing national canal system and, upon
abandonment, provide an opportunity to recapture a
piece of our early history. One need only take a walk
along the C&O Canal Trail here in the Washington, D.C.
metropolitan area to understand the contribution such
canal trails can make as urban amenities.
I could go on, but I will stop here. I come not to praise
rail-trails but to build them. S. 1544 is a strong step towards
this goal.
The Amount of Federal Land at Issue
The federal government played a leading role in the
construction of our national rail system through charters, land
grants, cash subsidies, low- interest loans and loan guarantees,
and grants of rights-of-way over federal land. S. 1544 addresses
this last form of support: railroad rights-of-way granted over
federal land. According to a study conducted by the Interstate
Commerce Commission in 19 32, the federal government granted
rights-of-way over approximately 628,000 acres of federal land
between 1853 and 1916, most of it west of the Mississippi
(appendix A).' At an average width of 150-200 feet, this
represents over 30,000 miles of federally-granted rail corridor.
The documentary basis for the ICC study still exists, so it
is possible to precisely locate these federally-granted
corridors. In preparation for this hearing, RTC staff researched
these documents and found that 417,000 acres were received by
just four railroads, the Southern Pacific (135,769), the
Atchison, Topeka and Santa Fe (48,484), the union Pacific
(135,745) and the Northern Pacific (now the Burlington Northern)
(97,406). Maps showing the federally-granted corridors of two of
these railroads, and a partial state-by-state breakdown, are
attached (appendix B) . According to the ICC study, the value of
federally-granted railroad rights-of-way as of December 31, 1927
was $68,492,627.
»
The Interest of the Railroads and the United States
Before 1871, railroads received rights-of-way over federal
land by specific act of Congress, and these are generally thought
to be held in "limited fee" or "fee simple determinable,"
meaning that the railroad owned rights to the corridor so long as
the corridor remained in rail use. In 190 3 the U.S. Supreme Court
held that, upon abandonment, ownership of these corridors
' This table is from Public Aids to Transportation, Vol. II
Railroads, at 118.
90
reverted to the federal government upon abandonment for railroad
purposes.' In 1875, Congress enacted the General Railroad Right-
of-way Act of 1875, granting railroads the right to locate lines
virtually anywhere on federal land by simply filing a map with
the Bureau of Land Management. This law, which has never been
repealed, has been generally viewed as granting railroads a
transportation right-of-way regulated by the federal government.'
Nevertheless, railroads retained some interest in the subsurface
of 1875 rights-of-way, such as the exclusive right to lease such
lands for oil and gas under the Right-of-way Leasing Act of 19 30.
30 U.S.C. 301.
Stopping a Federal Giveaway
Under existing law the federal government gives away
whatever interest it retains in these federally-granted corridors
upon abandonment for rail use. S. 1544 amends existing law to
recapture the federal interest, upon abandonment, for continued
public use of these corridors. Our point here is not to debate
the precise nature of this retained federal interest. Rather, it
is to point out the obvious fact that it serves no public purpose
to give away this interest and allow these corridors to be
destroyed .
The federal government did not undertake this giveaway
policy in furtherance of any higher public purpose. It simply
didn't think these corridors were worth the time and effort to
manage. Therefore, although it retained both surface and
subsurface reversionary rights on many if not most of these
federally-granted rail corridors, in the Act of March 22, 1922
Congress disposed of the federal interest upon abandonment to,
first, any municipality wishing to establish a public highway
along the corridor or, second, adjacent property owners.*
We now know that these corridors are worth millions of
dollars and are very desirable for trails and greenways. However,
under the 1922 Act the federal government is giving away this
asset at no charge and, further, is allowing these corridors to
be chopped up and plowed under in precise contravention of
existing national policy to preserve our built rail corridor
system for future rail use, trails and greenways." This
" Northern Pacific v. Townsend, 190 U.S. 267, 271 (1903).
' Great Northern Railway Co. v. United States, 315 U.S. 262
1942) .
* 4 3 U.S.C. 912. This law specifically reserves subsurface
rights in the federal government.
» See 49 U.S.C. 10906; 16 U.S.C. 1247(d).
3
91
represents neither good stewardship of federal assets, nor good
fiscal policy, nor good public policy.
S. 1544 would stop this giveaway of valuable federal assets
by amending the 1922 law to recapture the federal interest in
these corridors upon abandonment for rail use if not selected by
municipalities for public highway use. These corridors, when
found suitable by the Department of Interior, would be managed as
trails or greenways either by the Department itself or another
appropriate federal, state or local public entity. If a corridor
is found not suitable for trail or greenway use, it would be sold
pursuant to existing procedures governing surplus federal land,
with the proceeds placed in a trust fund. Under Section 4 of the
bill these proceeds could be used to either acquire new trails or
to make low- or no-interest loans to state or local agencies,
qualified private organizations, or appropriate federal agencies
for projects involving the acquisition or development of trails
for public use.
The Right-of-way Easement Argument
We understand that opponents of S. 1544 now claim that many
or most of these federally-granted rights-of-way are only surface
easements and that, further, the federal government has patented
off all subsurface rights to third parties (a position RTC
contests). Opponents accordingly claim that there is nothing left
with which the bill can deal.' But, if this were case, S. 1544 is
still vitally needed. The federal government unquestionably
retains the power to regulate the nature of the easement granted
to the railroad while that easement continues. Congress has
already amended such grants once by allowing railroads to convey
a partial interest in these corridors to any state, county or
municipality for use as a public highway or street, an interest
that continues despite the subsequent cessation of railroad use
in the corridor.' S. 1544, at the least, would establish that,
upon termination of the corridor for railroad purposes, the
federal government would reclaim the easement itself for trail or
' See City of Aberdeen v. Chicago and North Western
Railroad, 602 F. Supp. 589 (N.D. South Dakota 1984), but see
State of Idaho v. Oregon Short Line RR Co., 617 F. Supp 207 (D.
Idaho 1985) .
' Act of May 25, 1920, 41 Stat. 621, codified at 43 U.S.C.
913. The term "public highway" is broad enough to encompass the
establishment of a public trail. Stegman v. City of Fort Thomas,
273 Ky. 309, 116, S.E. 2d 649, 651 (1938) ("public highway" may
be restricted to pedestrians); White v. Meadow Park Land Co., 240
Mo. App. 683, 213 S.W. 2d 123, 125 (1948) (chief criterion of
public highway is that it is a transportation route available to
the public at large).
92
greenway use. Only if the federal government terminates the
easement would the easement expire.'
Even if S. 1544 has no further effect than to perpetuate a
surface easement for trail and greenway use, thousands of
federally-granted rights-of-way now lost upon abandonment could
be preserved. This is in full keeping with the recommendations of
the President's Commission on Americans Outdoors which advised
that "thousands of miles of abandoned rail lines should become
hiking, biking, and bridle paths."
Conclusion
S. 1544 replaces bad policy with good policy. It would stop
the giveaway of a valuable federal asset; it would preserve a
ready-made system of linear corridors suitable for building a
nationwide trail system; it would bring dollars into the federal
treasury; and it would help states and localities throughout the
United States build their own trail and greenway systems. Because
it is prospective in nature, it in no way affects the vested
rights of adjacent owners in already-abandoned corridors. It
seeks only to "stop the bleeding" of federal corridors not yet
abandoned. Possible future owners of these corridors do not have
any vested property interest, they have only an expectancy of
receiving a free gift upon abandonment for rail use. It is
therefore fair as well as smart public policy.
In its final report to the President, the President's
Commission on Americans Outdoors outlined a vision for America's
future and challenged all Americans to work towards that vision.
"Imagine," the Commission stated, "every person in the United
States being within easy walking distance of a greenway that
could lead around the entire nation. It can be done if we act
soon." S. 1544 is a first, firm step towards implementation of
this vision. We strongly urge its swift enactment.
Thank you.
• Congress has already exercised similar power under the
Interstate Commerce Act to regulate privately-granted railroad
easements. Under Section 8(d) of the National Trail System Act,
16 U.S.C. 1647 cd). Congress directed that privately-granted
railroad easements, if railbanked for future rail use through
interim trail use, would continue the easement and postpone
reversionary claims while in such use. This statute has been
challenged as an unconstitutional taking of property by
reversionary interest holders in pending litigation before the
U.S. Court of Appeals in the D.C. Circuit and the U.S. District
Court of the Eastern District of Missouri. RTC is an intervening
defendant in both actions.
93
App. A
118
AIDS TO RAILROADS
Ta»li U— acreage received by railroads for right-of-way and other carrier PURPOSfc
UNDER federal AND STATE RIGHT-OF-WAY GRANTS AND BY DONATIONS FROM LOCAL GOVeSS
MENTS. INDIVIDUALS, ASSOCIATIONS, AND PRIVATE CORPORATIONS, TOGETHER WITH VAHJB8 ^^
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Tbaa/m-«f>o«D 'o th«_tabtoa«r«ralT*dfroir ite PcdcrmJ. 8Ut«.sad loalrowa-
eiatiotta. aad <*nrpon>ioQs an inrvfaiat ol ibc f«ip*cti»c
aod doaattona. Tba dataraportod by tba raflroada la fpuma lo order Xn
to Dcw earner aid laada aad cbaocv la nrrtv aid luda b«d ac o< d
oatioo. witb a tow mioor adfostiaaats. an abova la bM a
of this Ublt
Areas aa of Dec. 31, 1SI7, ibova la tba tablak b**« baa daC«inlaad by makta
addiUoBs to t* dadttetMaa tram tbc napaetln anaa. m of daua U bwle vataasii- ^
oDTer ibc total dm uLT^afi added to or dlgpoMd ot. rwpHdve^. dortas ttaa g
bacwoaa baste ▼staatioas sad that data, aarepartad by tte raifroadi la c
Tsiaattoa ordv 3&. ud by dsdaoilac tbe acMfs of sll r ~
dates of basic vahattaa ud Dee- IL. 19B.
Tba total valoa. aa U datas of basic rahiattoo. ibowa ta ttas table fei tks ■ ^_
of tba valoas of earrlar aid laada tor all rallnads. lactodtaaspBsnuaMi. aid
datas. as Ozed brtbaCcgiinl»k», pfcubstsuiewlmaiaa Tahiaafttalwii^
vwe reponad by tbe imOiaads •§ cHTlcr aid leads bat *«s dasriflsd br tti v
mtsioa aa acBcarrtar. Tbc ralosa tbova la tba tabls. as of dsiss o< ba
for lbs rsapaeure anas laeaived &<aB tba f cdvml. Stale, aad teal < .
iDdlTtdoals. assotliiUios, sad prtratc oDnamloas, sad snareat sMi^ have 1MB
dacarmiDed. ss to airaac* of aervai o( tbe hrfv rsUroads ladaded la aaab mmJiw
s anmiBsiioB e( tsIdss for ladivtdaaJ paresb of aacb leads, as o< daus of baric «^^
tloB. SB abova la iBTsatcnss prrpaicd by tba CosuataMoa's Duieau of VstaadM^ii
osed by tbe Comzatsioa la flxlac tbe total tsJds of aid kads for MKb ntbasdL M
as to arraani of tba otbv railroads isdaded tb«Bia, by a pnraUaa at tbe e
Talna of tbe oarrtv aid laada of aasa of aaA otb« tallr~' '- -- -"
sad luds atdodad by tba Caoimlrtee as Dsacarrtar. u
Tbe Tataas abown la lbs tabtas as of Dee. tU MO. bavi
Ibc tbe TshMS. ibovB aa of detai of bade TataatloB. tas
by resaoD of ebsafis 1b aoaac* batweeB dat«of baste ralastifle aad Dee. ILI
eadtbeallffilaatioaof aoaafcof abaadoaadraUroadLaad by traadiacadia'^^
▼situs so aa to rvflcct ehaaces la lead valtiM betweu daias of bsale vataaQoa as
Dee. 11. 1930. iba trsadlst proeaaa bciac by loallttea sad aet oa aoDostry-vtda baK
* lododes aovs anas dtspoeed of lor eoasdarmtloBa ocbar ibaa Buooy or wStatt
npertad cvosldcratioe aad loaaaa t«y adT«« pessiMloa v raraniaB.
( Total aoaaca sbowa tB cbli flolUDB ladodas a).i9B •am wltb a fite of SMV^
neiuatfled by iba latsitata Conmsna Canml^aa oa iwnrsffrlsf baaoM •
* il I lasiai «b«va an ast qaaatltla, balas tbe ose«sao «f dfcpcaah vvm t^MlM
er Ttaa vvm. DlspoHLb ladada sons lor ooBsldsntioBS e&bsr tbaa laeaar or
noorted ooasMantloa aad Uasaa by sdnrM p
* Total sbowa la ibts c '
nadk iBrhwItin appnliftfe
■■■BK tbe oafwerorHB. ^
iv« beaa datmliBd by aH^
aia. aaO 'iKliTiduaU.
' Aeraans. sa of da tar of aeoalflcloB, as of datas of baste yaloaska, aad aa tf Dl^
1R7. iDciQde nj3» tarn, n,tm tarn, ud n.iOi m«. napeeUT^. '
laad crsBU osed or roaar^ed for vrrMr pBrpesaa (Tba task aaaor
ibovB for all rod««l fraata la ubie IL ODtsau ia> TWai u ibasa s
Is tbe raltroeds uador tbe lead oaaXA TbantsataasHBadavUestMatBlbsa
froBtbeFed««lpaBtaobowBLaaataBtasl.3.4.aadAafiabla" "^
aar«a««lsebid«dtBtbet0ealsib«VBfraBt^PadsrBlrt|bl<«f _ _
1,4. aad 10 ef tba uMs. gvlBf ta tbe hot tftat tba piiiMis la tba tslbaadfc c^-^
taa alteraau osctloas paatad tbam. laetede tbe rtfbt-af-iy paatad br taa <!■■
acat wben neb nctat-ofway Ika vitbta aacb alt«Baia oeeUaaa. Haopw^l
total dopilatad aaaafi la niaunty isall sad. tba^bra. may ba dlM~^
Cader tbe deeWoe la/Mfeatf Cb. ▼. Nmhsm fkdH* J^. Cb.. SU IM. Mb ■
tbcdupllaudsaa^asnsudlatbambaadsadvtbart^ ' ~^
aadar tba laad naau aad laaiaaiii ■iilj «• UnUad itm, .—
' Doea aot t adade fli aow of tide ludi paatad ta tba lontlii ?atfla L mm
aad the « cstera Padfle (a twiiJai^ii of tbe Caatral PaelAe) by CaUMrMa ftr r^
purpoaea aad sold by Lbaa. after ataklai ooaridanble laaratonti. is tbs M
FadOc Co tor 14.001.000. vblcta pnessda an aot ospanbls batvosa tbe liai
eaedluoB reaaiTcd trooi tba Btau sad tbe to
Acmn. aa of datae of aaqaialtloa. ladadai
n Bot ospanbls batvaoa tbe iMdjaV
iuieieawa»s«adebytbaBMa^>gft
UU m ft«a BUM taad anaii Mlfl
' A omna. as of dstas of besle vatastloa. aad as of Dec Xl, It
tnm 6ute laad trvau tmd or nssrrcd tar earner poipaaifc
total sbo«o for alj 6ui» ynau la ublo 11. ODtauna 10.)
• Amiable dsu <:o coi abow wbat porttoas, U uy, of tba I
doaated u or bald by tbc railroads lor sale.
■* Atroarcs tiwvp laduda a rauimly o&aU tamgt daaatad M aM if B
mck cnajiructirro. The acraatr aa ol dates el aaqaOitJaa aad tbat aM l-
sucli datc5 ud tba dct4" ol ba<ic raiuauoo ladudc leffle aerakfe doaeisd br tWl
poaaof uie ATsiiable oaudo act abo« «t)ai portioaa. U aay.of Ibsa
of dtu* of bade vaiuatioa or aa of Dee. 11, 1977. wen for nla. ^_,
'■' Tb«M landi vera aot rrponed by tbe niboada as aids, bat *ws rioariAX
Coma3i<»iup aa appartai ciai baeauaa tbe cuanraaesa to tbc nUroads n
aaJ coDiic era' loos ud tbe railroads wen tiBSMc to abow tbat tbsy paM satti
coaiideraiioo< ibcrcfor AvcA«n sbown ladoda a ralatimy soMll oensar
la aid or loousiry-tncfe ooaatiuettoo. Availabls data do aatabe* wbat 9
uy. or Ibc acroafea abowa wan dooaiad to or bald by tbe raUroada tar orih ^^^^
" Acreae* of apparaat aidiaa ot datea of aaqottltioB sad Hffoli tbaraaaa*^^H
aoeb dates ud datas of baaie TStaatioe bav« aot bssa ssiHtalBad. Tba o^^V^
sMaraat aids ibowp as of datesof aequliltloa Is tbat betdaaotf daiasaf biM^^^F
>* Dau as to iJisiif la appanat aids an laaaapMa.
85-A64 0 - 88 - A
94
App. B
LOCATION OF FEDERALLY GRANTED RAILROAD RIGHTS-OF-WAY
According to Public Aids to Transportation, Vol. II, the
federal government granted numerous rights-of-way to railroads
since 1834. Between 1835 and 1875 Congress made several grants
of rights-of-way through public lands to railroads by special
acts. In 1852 Congress enacted the first federal general right-
of-way grant which applied to rights-of-way through public lands.
In 1875 Congress enacted the present federal general right-of-way
act. This act, which is still effective, also applies to rights-
of-way through public lands. Since 1875, the federal government
has made a large number of right-of-way grants through national
parks, military or Indian reservations and other government lands
reserved from sale. The bulk of acreage received under federal
right-of-way grants, however, was granted between 1850 and 1871
under right-of-way grants contained within the land grant acts.
Total grants amounted to about 628,000 acres.
Approximately two-thirds of the land which the federal
government granted to railroads under right-of-way grants went to
Atchison, Topeka and Santa Fe (ATSF) , Southern Pacific (SP),
Union Pacific (UP) or Northern Pacific (NP). In order to
identify the specific rights-of-way which the federal government
granted to these four railroads RTC researched the reports of
ATSF, SP, UP and NP filed in response to I.C.C. Valuation Order
16. These volumes list "lands acquired through aids, gifts,
grants of right-of-way or donations (excluding land grants) by
the railroad company to June 30, 1916 from the government of the
U.S. or from state, county, municipal governments or any
individual, association or corporation."
The railroads' reports in response to V.O. 16 list land
parcels (most less than ten acres in size) which the federal
government granted to the railroads. ATSF and SP indicated the
endpoints of the lines which include federal right-of-way grants,
enabling RTC to identify the lines which were wholly (or at least
95%) federally granted. The ATSF and SP lines are identified on
the attached maps. Since NP and UP did not indicate the
endpoints of the lines which include federally granted rights-of-
way, RTC was not able to map the lines granted to these two
companies. However, we were able to break the NP and UP grants
down into total acreage for each state where they were granted .
The total acreage granted to Southern Pacific was 135,769
acres. This land was granted in Arizona, California, Nevada, New
Mexico, Oregon and Utah.
The total acreage granted to Atchison, Topeka and Santa Fe
was 48,484 acres. This land was granted in six states:
Arizona 16,812 acres
California 5,197 acres
Colorado 3,724 acres
95
Kansas 3,383 acres
New Mexico 19,273 acres
Oklahoma 95 acres
The total acreage granted to Union Pacific was 135,745
acres. This land was granted in five states:
Colorado 16,979 acres
Kansas 34,449 acres
Nebraska 50,984 acres
Utah 4,396 acres
Wyoming 28,9 37 acres
The total acreage granted to Northern Pacific was 97,406
acres. This land was granted in seven states:
Idaho 6,387 acres
Minnesota 8,091 acres
Montana 37,465 acres
North Dakota 20,409 acres
Oregon 68 acres
Washington 23,864 acres
Wisconsin 1,122 acres
Between them, AT&SF, SP, NP and UP received over 417,000
acres of the almost 628,000 acres which the federal government
granted to railroad companies. Since federal right-of way grants
were most commonly 200 feet in width, the grants to these four
railroad companies alone comprise approximately 17,500 miles of
corridors .
96
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101
Senator Metzenbaum. Thank you very much, Mr. Burwell.
Our next witness on this panel, and our last witness, is Susan
Henley, Executive Director of the American Hiking Society.
STATEMENT OF SUSAN A. HENLEY, EXECUTIVE DIRECTOR,
AMERICAN HIKING SOCIETY
Ms. Henley. Thank you very much. Senator.
I am very pleased to be here and pleased to support No. 1544. I
would also like to say I am pleased to be on a panel with so many
Buckeyes. I happen to have been born and raised in Ohio. I do not
live there now, but I am a Buckeye. At least I consider myself one.
The use of abandoned railroads for trails is encouraged and di-
rected by both the National Trails System Act and the Railroad
Revitalization and Regulatory Reform Act. Yet in the past 12
years, over 40,000 miles of track have been abandoned with very
little conversion to trail uses or even preservation of rights-of-ways
for future national needs.
Although the administration has not yet responded to the recom-
mendations of the commission we have heard about several times
today, many of the local and State agencies, and the private sector,
have indeed lit those prairie fires that it refers to, and with a little
bit of encouragement from Congress in the form of bills such as S.
1544, could fan those small fires to really catch hold and spread
across this great land of opportunity and beautiful natural re-
sources.
One of the major recommendations of the commission was to es-
tablish linear corridors. This bill serves as a major stepping stone,
an easy one for the Federal Government to accomplish to help
attain this recommendation.
The Congress could play an invaluable role in seeing that the ef-
forts are taken to protect and safeguard the recreational resources.
This bill would enable the Federal Government to recapture mil-
lions of dollars while at the same time establish thousands of miles
of trails. The bill does all this by simply terminating the existing
giveaway of Federally owned railroad rights-of-way.
The administration has been extremely shortsighted, penny wise
and dollar foolish. It cannot support a trails fund due to the Feder-
al deficit; however, it does not raise any question as to how much it
is giving away.
AH too frequently the opportunity to create a new trail is lost
because the local or State government agency involved lacks suffi-
cient funds to purchase a corridor within the brief time period of
only 180 days. A fund designed to provide loans to the trail pur-
chasers to acquire the right-of-way before it is broken up piecemeal
would be an invaluable tool to assist in retaining some of these cor-
ridors.
Let me skip over what the bill could do and give you a highlight
of one of the things that it could have prevented. In the Black Hills
of South Dakota there is a magnificent railroad right-of-way of
about 40 miles through the Custer National Forest. Approximately
80 percent of the right-of-way is actually in the National Forest. As
a matter of fact, the Forest Service directs hikers to that area
when they ask about where they could go.
102
The abandonment took place 4 years ago. At that time, although
there was some local interest in developing the property, no leader-
ship gelled, and it did not happen quickly enough.
Now the Burlington Northern recognizes that the right-of-way is
scenic and of great merit as a trail. It is desirous of cooperating to
preserve this facility, but it feels its ability is limited because of the
time lapse from abandonment. This trail has probably been lost.
S. 1544 would contribute to preventing this kind of problem from
recurring by requiring the Federal Land Management officials in
charge of the property to evaluate the property when it becomes
available. The bill should, in short, produce the kind of leadership
which is needed at the Federal level to retain valuable rights-of-
ways for trail purposes on Federal lands.
Another problem I would like to speak about is the Interstate
Commerce Commission and its not doing more to assure that rail-
road rights-of-ways are made available for recreational purposes.
Congress has repeatedly addressed this issue. Section 9(b) of the
original Trails Act calls for ICC to cooperate in this regard.
Congress recognized that something was awry back in 1976, and
now section 10906 of the Interstate Commerce Commission act, the
ICC must make a determination of public use suitability of a right-
of-way upon abandonment, and must assure that suitable corridors
are offered on reasonable terms. Unfortunately, ICC did nothing to
enforce this provision either.
The National Park Service in 1985 determined that ICC's per-
formance was dismal. I am submitting for the record a copy of Di-
rector Mott's letter to the ICC regarding the C&O Canal towpath
and its adjoining Georgetown Spur right-of-way we have heard pre-
viously about.
Congress also addressed the issue in the National Trails System
Act amendments adopted in 1983. I would like to also mention that
the American Hiking Society was the principal proponent of that
amendment. It was our intent, or at least we understood and re-
ported to our members that this would require ICC to order the
transfer of rights-of-way for railbanking and interim trail use on
the terms and conditions set by the Commission.
ICC has interpreted the provision to be applicable only if the
railroad voluntarily consents. This interpretation was recently
upheld in the ninth circuit. Some carriers have now begun to nego-
tiate under this provision, but many have arbitrarily refused.
Others have sought compensation which exceeds the appraised
value of the property. This substantially hampers efforts to secure
these corridors for public use, and was never the intent of Congress
under the National Trails System Act.
Let me finish with what you opened this session with. Recreation
is vital to the quality of life, and trails are one of our most impor-
tant, significant outdoor resources. Not only are they used by
hikers and bicyclists and horse riders, which you normally think of
as being trail users, but they are also used by hunters, photogra-
phers, bird watchers, and may, many others. Rail-to-trail conver-
sions are particularly suited for so many handicapped people who
have the opportunity to get outdoors without being on a particular-
ly rugged trail.
103
It is a way for people to get to their special place if they want to
fish, they want to relax by a waterfall, or just sit by a viewpoint
and rejoice in the beauty of our great country. It restores the inner
spirit. We cannot afford to turn down the opportunity which could
lead to the establishment of thousands of miles of potential recre-
ational corridors which can help to someday provide a nationwide
network of trails across America.
Thank you, Mr. Chairman, for your interest.
[The prepared statement of Ms. Henley follows:]
104
STATEMENT OF SUSAN A. HENLEY, EXECUTIVE DIRECTOR OF
THE AMERICAN HIKING SOCIETY
REGARD THE SUBJECT: S.1544 / National Trails System Improvements Act of 1987
PRESENTED TO THE
U.S. SENATE
COMMITTEE ON ENERGY AND NATURAL RESOURCES
PUBLIC LANDS, NATIONAL PARKS AND FORESTS
March 3, 1988
Mr. Chairman and members of the Subcommittee, my name is Susan Henley. I am the
Executive Director of the American Hiking Society, I speak today on behalf of
our membership and our club affiliates with a combined total of over 150,000
hikers. We are pleased to support S. 1544 and recommend its early adoption.
The use of abandoned railroads for trails is encouraged and directed by both
the National Trails System Act and the Railroad Revitalization and Regulatory
Reform Act. Yet in the past 12 years, over 40,000 miles of track have been
abandoned, with very little conversion to trail uses or even preservation of
rights-of-way for possible future national need.
Although the administration has not yet responded to the recommendations of the.
President's Commission on Americans Outdoors, many of the local and state
agencies and private sector companies and organizations have indeed lit those
prairie fires it refers to and some encouragement from Congress in the form of
legislation such as S.1544 could fan those few small fires to really catch hold
and spread across our great land of opportunity and beautiful natural
resources. One of the major recommendations of the Commission was focused on
the importance and the need to protect and establish linear corridors- i.e.
trails, rivers & greenways. This bill serves as a major stepping stone - an
easy one for the federal government to accomplish - to help to attain the
Commissions recommendation. The Congress could play an invaluable role in
seeing that efforts be taken to protect and safeguard the potential recreational
resources possible along these federal rights-of-way and making them available
to our public seeking enrichment in the great outdoors of this nation.
This bill would enable the federal government to recapture millions of dollars
while at the same time establish thousands of miles of trails, greenways and
linear open spaces which could serve to protect a vast part of the country's
land and natural resources. The bill does all this by simply terminating the
existing "give-away" of federally-owned railroad right-of-ways. The Adminis-
tration has been extremely short-sighted, penny wise and dollar foolish. It
cannot support a trails fund due to the federal deficit. However it does not
raise the question of how much it is giving away.
All to frequently, the opportunity to create a new trail is lost because of
local or state government agency involved lacks sufficient funds to purchase a
corridor within the brief time period -- only 180 days -- The small appropria-
tion, which this bill calls for is just to get the program underway. Rail
trail conversion opportunities must be acted upon when the abandonment is
imminent, waiting till next year just is not an alternative, the corridor will
be lost forever if timely action is not possible. A fund designed to provide
loans to trail purchasers to acquire the right-of-way before it is broken up
piecemeal would be an invaluable tool to assist in retaining some of these
105
statement or American Hiking society J/J/sa regard b.iD44
corridors. The revolving fund provided in this bill is largely self-financed
through sales of government land formerly given away. As the rights-of-way are
returned the the federal government, the program will more than pay for itself
as well as to further what the Congress intended when it first passed the
National Trails System Act some 20-years ago.
Enough about what this bill could do. Let me just highlight briefly a specific
problem and how the bill will deal with it. In the Black Hills of South
Dakota, there is a magnificent railroad right-of-way of about 40 miles in
length through Custer National Forest. Approximately 80% of the right-of-way
is actually in the National Forest, The entire right-of-way would make a fine
trail, and, indeed. Forest Service personnel direct would-be hikers to the
right-of-way. The abandonment took place some four years ago. At the time,
although there was considerable local interest in developing the property as a
trail, no leadership jelled, and the corridor is rapidly retreating into the
environment. Although the railroad, Burlington Northern, which now recognizes
the right-of-way is scenic and of great merit as a trail, is desirous of
cooperating to preserve this facility, it feels that its ability to do so is
limited because of the time lapse from abandonment. Although South Dakota is
now working to preserve this right-of-way, the State's ability to do so could
have been greatly enhanced had federal authorities taken a more timely and
aggressive position in the matter.
S.1544 would contribute to preventing this kind of problem from recurring by
requiring the federal land management officials in charge of the property to
evaluate the property when it becomes available, and also to make the property
available to local or state agencies or qualified private organizations for
trail purposes. The bill should in short produce the kind of leadership which
is needed at the federal level to retain valuable rights-of-way for trail
purposes on federal lands.
There is another problem which we recommend that the Committee consider.
Advocates of trails have for some two decades expressed concern that the
Interstate Commerce Commission is not doing more to assure that railroad
rights-of-way are made available for trail use upon abandonment. Congress has
repeatedly addressed this issue. Section 9(b) of the original Trails Act
calls for ICC to cooperate in this regard. When Congress revised rail
regulation in 1976, several amendments provided for a study of so-called rail
trails by the Interior Department. Interior concluded that at least a third of
railroad rights-of-way were suitable for public use upon abandonment.
However, very few of these are being so devoted. Even before this report.
Congress recognized that something was awry, and specifically provided in what
is now section 10906 of the Interstate Commerce Act that ICC must make a
determination of public use suitability of a right-of-way upon abandonment, and
must assure that suitable corridors are offered by the railroad for such use
on, quote, "reasonable terms." Unfortunately, ICC did nothing to enforce this
provision either. Indeed, the National Park Service in a report issued in 1985
termed ICC's performance "dismal." I am submitting for the record a letter
from Director Mott to the ICC asking the ICC to take appropriate action to set
"reasonable terms" under 10906, which happens to involve an abandonment that
is along the C&O Canal towpath right here in the District of Columbia. We
understand that this request is being rejected by ICC.
Congress also addressed the issue in the National Trails System Act Amendments
adopted in 1983, which, I might add, the American Hiking Society was a
106
statement of American Hiking Society 3/3/88 regard 5.1544
principal proponent of that amendment. One of the newly adopted provisions was
section 8{d) of the Trails Act. This provision was intended, or at least we so
understood and reported to our members, to require ICC to order the transfer of
rights-of-way for railbanking and interim trail use on terms and conditions set
by the Commission, so long as the railroad was relieved of future liabilities.
In other words, the new provision was intended to assure at least some enforce-
ment of section 10906. But ICC has interpreted that provision to be appli-
cable only if the railroad voluntarily consents. This interpretation was
recently upheld by the Ninth Circuit. Although some carriers have now begun to
negotiate under this provision, many have arbitrarily refused, and others have
sought compensation which exceeds the appraised value of the property. This
substantially hampers efforts to secure these corridors for public use and was
never the intent of Congress under the National Trails System Act.
We continue to believe that the public interest will not be served until ICC
recognizes, or is compelled to recognize by legislation, that it should set
terms and conditions for transfer of otherwise abandoned rail lines for
alternative public uses upon the request of an interested party. This is
exactly the area of ICC's expertise, and the agency does it all the time for
private parties seeking a corridor for continued private rail use.
Recreation is vital to the quality of life. Trails are one of our most
significant outdoor resources, not only are they used by hikers, bicyclist,
horse riders, etc. but also many other recreationist, hunters, photographers,
bird watchers and many others use them to reach their special place to fish,
relax by a waterfall or just sit at a viewpoint and rejoice in the beauty of
this great country. It restores the inner spirit. We can not afford to turn
down opportunity which could lead to the establishment of thousands of miles of
potential recreational corridors which can help to someday provide a nationwide
network of trails across America.
Mr. Chairman, thank you for your time and interest. We support the bill and
encourage its adoption.
107
Ui(765)
DEC 18 1987
Honorable Haacher Sradlsoa
Chairrfomaa, Incaracace Comaarce Coaalaslon
Tveift.T Scraac and CoaaclCutlon Avenue, V.'J.
Wasnlngcon, D.C, 20423
Dear Madam CHalcwoaan:
Thl3 Letter addresses the public recreational use of the Georgetown Branch
Railroad right-of-way upoa abandonment (Baltimore and Ohio Railroad
Abandonaent) through Montgomery County, Maryland, and the District of
Columbia, [Afl-19 (Sub-no. 112)]. It also supplements the Satloaai Park
Service's comments submitted by our Mid-Atlantic Regional Office in
Philadelphia on April 29, 198 7 (copy enclosed).
Due to the significant potential Impact of this proposed abandonaent on the
Chesapeake and Ohio Canal (C&O) Macioaal Historic Park, and the importance of
preserving the linear integrity of the entire corridor from Georgetown to
Silver Spring, I am writing you directly.
The Interstate Commerce Commission (ICC) is currently considering the proposal
of CSX Corporation, owner of the Baltlaore and Ohio Railroad, to abandon the
Gaorgetown Branch of the latter line. That Branch commences a aile north of
downtown Silver Spring, Maryland, traverses Rock Creek Park, crosses downtswn
Bathesda, and enters the District of Columbia at the Delecarlla Reser/ior.
From that point, the right-of-way is either adjacent to, or actuailv Inslia,
the boundaries of the CiO Canal ?ar*c until its terainus in Georgetown.
The Georgetown Branch should be secured for public recraational use for its
entire Length. If converted to recreational trail use the corridor would, In
combination with the C&O Caoal towpath and the Rock Creek Park, create a
2G-aiLa tnsida-the-3eltway loop, all of wnlch would be -relatively free of
motor vehicular cross traffic. Moreover, ch« corridor Inside the District is
nacassarv both as a buffer and as parr of the C&O Canal National Historic
Park. The Matiooal Park Service is also cespoasible for the District of
CoLuabia portion of Rock Creek Park and regards converslTon of the Georgetown
Branch to recreational uae as compleaeatary to chac park as well.
The President's Cosalsalon on Americans Outdoors, la its January 1, 193 7,
Report, recommended the creation of additional "greenways" in urban areas. A
priae example of an excellent "greenway" is an about-to-be abandoned rail
corridor. Conversion of the Georgetown Branch to recreational trail use would
claarlr be consistent with the recoaaendations of the President's Connlss'.on.
Because of the obvious taportance of this corridor for two national parse units
and in Its own right, because recreational use of the corridor fits overall
recomaendations on aatiooal recreational policy, and because conversion t3
108
recreatlOBBLl uae would ser-re aa a fine arample for the Nation, the National
Part 3«rTlc« aupporta acquisition of the Georgetown Branch right-of-way for
public r«cr«*tioaal use. We believe that all Federal agencies should
cooperate Co the utaoat in securing the right-of-way for that purpose.
We have been negoclatlog with the CSX Corporation and will continue to do so
to acquire the Georgetown Branch. We Intend to pursue those negotiations to
reach agreeaent on purchase of the right-or-way. However, we request that the
Interstate Coi^erce Co^rlsaion issue an order under 49 tJ.S.C. 10906 requiring
the railroad to pffer the right-of-way for sale for public use "on reasonable
teraa." We would appreciate it very auch If the ICC would establish the
aeohanisa to detenalne 'reaaooable teras."
A historic rail group la Interested in seeking to continue to operate the
corridor for rail purposea. We are working with chat group to explore the
possibility of operating a historic railroad. While an application may be
filed under 49 U.S.C. 10905 if abandonaent la authorized, we would prefer to
pursue acquisition of the right-of-way under O.S.C. 10906.
Furthermore, the Hatlonal Park Service supports Mcntgoaery County's decision
to acquire the corridor throughout the County for recreational trail purposes
pursuant to Section 3(d) of the National Trails Systea Act, 16 O.S.C.
1247(d). Use of Section 3(d) aay be necessary to asaure non-interruption of
the corridor due to poaalble reversionary daiaa.
Lastly, we ask the Interstate Coanerce Coi^lssion, pursuant to Section 9(b) of
the National Trails Systea Act, 16 O.S.C. 1243(b), to advise the Secrecar^ of
the Interior as to what action the Cooaissioa proposes in order to assure chat
those Federal agencies having Jurisdiction or control over this abaadonaeac
recognize the suitability and the significance of this corridor for taprovlng
and expanding the National Trails Systea. This is particularly critical In
assuring deveiopaent of a continuoua trail along the corridor which traverses
the Dalecarlla Reaervaclon operated by the DepartaenC of Defense.
I thank Che CooBiaaioa for ics work la Chls area', and I hope that we can
cooperate Co secure Chls property for public uae. Ic la cruly a
once-in-a-llfedae opporcunlcy.
Sincerely,
Enclosure
109
Senator Metzenbaum. Thank you very much. We appreciate
your testimony, and appreciate the testimony of each of the wit-
nesses, and we may submit some questions to you, but your testi-
mony has been very, very helpful today, and we appreciate it great-
ly-
Thank you.
Our next panel consists of Richard Welsh, Executive Director of
the National Association of Reversionary Property Owners of Issa-
quah, WA and Richard Krause, Assistant Counsel, American Farm
Bureau Federation.
STATEMENT OF RICHARD WELSH, EXECUTIVE DIRECTOR, NA-
TIONAL ASSOCIATION OF REVERSIONARY PROPERTY OWNERS,
ISSAQUAH, WA
Mr. Welsh. Good afternoon, Mr. Chairman and members of the
staff. My name is Richard Welsh. I am the Executive Director of
the National Association of Reversionary Property Owners, located
in Issaquah, WA, which is a suburb of Seattle.
Our organization is made up of a core group of 1100 property
owners throughout the State of Washington. We have associate
groups in 31 other states.
Our purpose is to educate the property owners around the coun-
try that own property abutting or adjacent to railroads as to who
really owns the underlying land the railroad tracks are on.
I am here today to speak in opposition to Senate Bill 1544. The
general purpose of the bill, in a broad sense, is to repeal the provi-
sions of the 1922 Abandonment Act, which designates how some
U.S. Government granted right-of-ways are disposed of after aban-
donment by the railroad. The other provision of the bill, of course,
is to create another bureaucracy called the Trails Fund.
The proposed bill takes away the property rights of thousands of
property owners from Illinois to the Pacific X)cean, in that these
property owners have long relied on the proposition that the land
the railroad right-of-way crosses belonged to them after abandon-
ment, free of the railroad easement.
State property law rules that when an easement is terminated or
extinguished, then the underlying land is free of the easement. The
property descriptions have long been interpreted as only subject to
the use of the railroad right-of-way. In fact, the Interior Depart-
ment regulations 43 CFR 2842,1 section A, 1976, I will quote the
second sentence of that, the Government conveys a fee simple title
in the land over which the right-of-way is granted to the person to
whom the patent issues from the legal subdivision on which the
right-of-way is located, and such patentee takes the fee subject only
to the railroad's right and use possession.
That is speaking in terms of the 1875 right-of-way, General
Right-of-way Act and how those rights-of-way were given out.
The background summary of the bill by the Congressional Re-
search Service, which I believe was done with a slanted bias toward
adoption of the bill, the summary was done in 1984 and not updat-
ed, and it leaves out three of the most recent cases that are square-
ly on point on this. That is U.S. v. Union Pacific Railroad, 1957,
the Energy Tranportation System v. Union Pacific in 1979, and the
no
Aberdeen v. Chicago Transportation and the Chicago North West-
ern in January 1984. I notice that Mr. Burwell on the other side
quoted the only case he could find in all of the legalhood of the
Oregon Short Line case, which was the only one of a different point
of view.
Also, the CFR I quoted above was not included in that congres-
sional research paper.
The Department of the Interior is evidently relying on, it ap-
peared, until they spoke earlier today, on that research paper, and
obviously they are going to redo that and come up with their own
paper, which was a surprise to me when I heard that testimony
earlier.
The bill allows an entirely different use of the right-of-way than
was envisioned more than 100 years ago by some of these patentees
when they acquired their patents. Homes and businesses are built
right next to these right-of-ways, and the changing of the use to an
open recreational use would be detrimental to the adjacent proper-
ties.
An analogy of that would be abandoning a Federal highway, for
whatever reason, and then building an airport on the abandoned
right-of-way. I cannot imagine too many people appreciating an air-
port in their front yard or their back yard or alongside their house.
There is no provision in the bill for Federal condemnation. Due
to the existing court precedents, most if not all of the right-of-ways
addressed in this bill would have to be condemned in order for the
government to take control of the underlying land.
There is no provision in the bill to provide an appropriation for
condemnation.
I might mention that everybody earlier was talking about the
President's Commission on Americans Outdoors. When the Presi-
dent's Commission on Americans Outdoors report came out, it talked
about abandoned railroads right-of-ways for trails, but it talked
strictly about volunteer action by the abutting property owners. No
condemnation actions were mentioned or contemplated in the final
report of the President's bill.
I have submitted a legal opinion from Mr. Thomas McFarland,
an attorney in Chicago. That is, I supplied 50 copies to the staff
yesterday. I will not get into that.
Senator Metzenbaum. Well, in that — I looked at the legal opin-
ion. He says that the United States owns the title, fee title having
remained in the United States, there is no reversionary interest in
the United States upon the abandonment of the rights-of-way upon
which either 43 U.S.C. 912 or the bill could operate.
As I understand what he is saying, he is saying that the United
States has the title. If they have the title, then how can anyone
claim to have any reversionary interest in it?
Mr. Welsh. I would like to — I was going to speak to that. Sena-
tor.
The first two pages is what he calls his executive summary, and
we did not have enough time for me to go over that after I received
it from him. You have to read that in context preferably with the
memorandum behind there.
Mr. McFarland splits the Federal grant right-of-ways into three
separate sections, 1850 to 1862, 1862 to 1871, and 1871 to the
Ill
present. His three sentences in there speak to those three things,
but they do not delineate that. His third sentence is speaking in
regards to the land that the Federal Government still is the abut-
ting owner of, and when you read the rest of his memorandum, you
will see that he quotes the court cases that decided this, and the
CFR, and the Department of Interior opinions.
His first page on the executive summary is very — in fact, it was
tough for me to understand what he was talking about, and I called
him before we came out here today to
Senator Metzenbaum. I guess I do not understand your position.
I am really having trouble comprehending.
Mr. Welsh. Well, our position is that the Federal Government,
when they patented the land, sir
Senator Metzenbaum. When they what?
Mr. Welsh. When they patented the land to the homesteader or
to whoever it happened to be back in the 1800's and even into the
1920's, the Federal Government gave those patents, or sold those
patents with the underljdng — with the railroad on them already,
and they sold whatever interest they had in the right-of-way when
they sold the patents, or when they gave the patents. A lot of them
were given.
Senator Metzenbaum. You are talking about patents, and I am
talking about what his letter says.
First of all, he says the bill is a nullity, it will not make any dif-
ference. It says it will have little or no legal effect.
So if it has little or no legal effect, you do not have anything to
object to, do you?
Mr. Welsh. The objection we have is trjdng to go to court to
overturn any effect that the bill would have.
Senator Metzenbaum. But it has no effect. He says so. He says it
has no effect, so what are you worrying about?
Mr. Welsh. If you pass the bill, it is just like the Trails Act,
1247(d). There are two major lawsuits in Federal Court on that on
the challenge, and I happen to have one of them. One of them we
have already argued that before the U.S. Appeals Court, waiting
for a decision. The other one is sitting in the Missouri Federal
Court right now, St. Louis Federal Court, and exactly what you are
suggesting here is they passed the bill, and even back then there
was a problem with the challenge of the constitutionality of part of
1247(d).
Senator Metzenbaum. Is it not correct that none of the right-of-
way in the Missouri case was federally granted?
Mr. Welsh. There is some of that. It was part of the Federal
grant.
Senator Metzenbaum. What?
Mr. Welsh. Part of the right-of-way is federally granted in the
Missouri case. I think there is around — not very many miles com-
pared to the 200 miles total of the Missouri Katy Railroad, I think
there are just a few sections in there that were still owned by the
Government when the railroad went through.
Senator Metzenbaum. Well, I guess the difficulty I am having
with your testimony, Mr. Welsh, is to understand it based upon
your lawyer's analysis. He says two things. He says, one, the bill
112
would have very little or no legal effect. If it has no legal effect,
then you do not have to worry about it. It is a nullity.
The second thing he says, fee title having remained in the
United States, there is no reversionary interest in the United
States upon abandonment of the rights-of-way upon which either
43 U.S.C. 912 or the bill could operate. Therefore, you can step
aside and say, well, it has no effect, and our lawyers will point that
out if it ever gets enacted.
Mr. Welsh. That is true, and that could happen, but I would
much rather have the bill either not passed at all, or passed in a
constitutional method so that we do not have to go to court again
sometime down the road when the first — let's just say you passed
the bill as it is today, and they abandon a railroad. Then the first
person that has his property taken or thinks he has his property
taken would have to go to Federal Court on it, and that is what we
are trying to forestall.
And I think what the Interior Department and Mr. Mott both
said, they both have a problem with the legal titles. Maybe the
Federal Government does not have any interest whatsoever in
these right-of-ways.
The first two pages of Mr. McFarland's thing have to be read
with the following nine pages, and I think that would — it clarifies
his position more than particularly his first page. I do not think it
is in the proper context.
Senator Metzenbaum. Well, you say that, and yet I have to say
that the first two pages are his letters, and they are very succinct
in what he is saying, and so I have to — I do not know how you can
say to me pay no attention to this lawyer's letter.
Mr. Welsh. No, I did not say that.
Senator Metzenbaum. I try to read it as it is, and it is widely
acknowledged that under the 1922 act, that a State government
can claim a federally granted right-of-way for public highway pur-
poses for free within one year of abandonment.
Do you believe that also constitutes a taking?
Mr. Welsh. It depends on what t)T)e of — how the right-of-way
was originally granted. If it was an 1862 to 1871 grant or an 1871
to present grant.
Now, the Federal Court in the Aberdeen case in 1981, 1984, said
that th 1875 act granting right-of-ways was — the 1922 act did not
affect 1875 right-of-way grants. They made the imposition, they in-
timated that possibly 1862 to 1871 right-of-way grants would be af-
fected by the 1922 law, and it is Mr. McFarland's opinion in his
memorandum that even the 1862 to 1871 right-of-way grants would
not be affected under the Energy Transportation System case of
1979, which, I am not an attorney, I cannot speak to that case. I
am sorry.
Senator Metzenbaum. Well, thank you very much, Mr. Welsh.
We will take your testimony into consideration.
Your entire statement will be included in the record.
[The prepared statement of Mr. Welsh follows:]
113
National Association of Reversionary Property Owners
2311 E. LAKE SAMMAMISH PL. St. ISSAQUAH, WA 98027
(206) 392-1024
Richard Welsh, Executive Director
March 3, 1988
To: The Subcommittee on Public Lands, National Parks and Forests
The National Association of Reversionary Property Owners is a group of
property owners united together to educate the citizens of the United States
about the true ownership of railroad, utility, highway and governmental
Rights-Of-Way.
This is the Association's information packet in opposition to proposed Senate
Bill 1544 now before the Public Lands, National Parks and Forests Subcommittee
of the Senate Energy and Natural Resources Committee.
This packet contains behind this cover sheet:
Tab 1. Bill Description by Section, Background and Summary
prepared by the National Association of Reversionary
Property Owners
Tab 2. The Legal Effect and Constitutional ty of Senate Bill 1544
prepared by Mr. Thomas McFarland a transportation specialist
attorney from Chicago, Illinois
Tab3. A Memorandum of the Legal Effects of Federal Grants of
Right-Of-Ways to Railroads prepared by Mr. Thomas McFarland
The Association wants to thank the Chairman and the Subcommittee for the
opportunity to present our views on Senate Bill 1544.
114
United States Congress vjx
SenateBlli 1544 of. 100th Congress
BILL DESCRIPTION BY SECTION
Section 1. Short Title: National Trails System Improvement Act of 1987
Section 2. Findings
Section 3. Amend Section 9 of National Trails System Act by
repealing most of Act of March 8, 1922 (43 USC 912)
and allowing the donation or selling of abandoned
railroad right of way land to private entities or
other governments.
Section 4. Setting up new bureaucracy called Trails Fund and
calling for appropriation of $700,000 per year for
administration and trails purchases. Designating Dept.
of Interior to make rules. Calls for yearly report.
BACKGROUND:
In 1850, 1862 and 1864 Congress passed laws granting railroad right of ways
and alternate section land grants to several railroads for the purposes of
opening up the western United States.
In 1871 Congress changed its attitude on railroad land grants and only granted
right of ways for railroad purposes to railroads.
In 1875 Congress passed the General Right of Way Act which granted 200 foot
right of ways to railroads for railroad purposes. The 1875 Act differed from
previous Acts as there was no inclusion of land grants. Under this 1875 Act,
railroads could build their railroads on government land and notify the local land
office after completion of each 20 mile section with a map of definite location.
In 1922 Congress passed the Act of March 8, 1922, (43 U.S.C. 912) which pro-
vides for the disposition of abandoned or forfeited railroad grants. This Act
provides that abandoned right of ways vest or revert to the abutting property
owner.
There is a difference between the pre-1871 right of way grants and the
post-1871 right of way grants. Pre-1871 grants left the land the right of way
was on m ownership of the U.S. even if the land was later patented, but in
post-1871 right of way grants, the land the right of way was on went with the
patentee, subject only to the railroad use. See Great Northern v. U.S., 315 US
262, 272 (1942), State of Wyoming v. Udall, 379 F.2d 635, (10th Circuit 1967),
cert, denied 389 US 985 (1967), Energy Transp. Systems, Inc. v. Union Pacific R.
Co.. 606 f.2d 934, 937 (10th Cir. 1979), City of Aberdeen v. Chicago Transp.. 602
F. Supp. 589, (1984), see also, 43 CFR 2842.1(a).
The 1922 Act has been held by the some federal courts to only pertain to
pre-1871 right of way grants because the U.S. retained an interest in the
pre-1871 grants. In post-1871 grants the courts have held that the future
patentee got the interest of the right of way with the patent, subject only to
the railroad use, and the 1922 Act does not apply. See above cites.
1 -
115
SUMMARY:
The proposed Bill will take away the property rights of thousands of property
owners from Illinois to the Pacific Ocean in that these property owners have long
relied on the proposition that the land the railroad right of way crosses belongs
to them after abandonment, free of the railroad easement. State property law
rules that when an easement is terminated or extinguished then the underlying
land is free of the easement. The property descriptions have long been
interpreted as only "subject to the use of the railroad". Their title companies
have long been insuring their properties as only "subject to the railroad right of
way". In fact Interior Department regulations, 43 CFR 2842. 1(a) (1976),
describing the nature of the 1875 Right-of-Way Act read as follows:
"A railroad company to which a right-of-way is granted
does not secure a full and complete title to the land
on which the right-of-way is located. It obtains only the
right to use the land for the purposes for which it is granted
and for no other purpose, and may hold such possession, if it
is necessary to that use, as long and only as long as that use
continues. The Government conveys the fee simple title in
the land over which the right-of-way is granted to the
person to whom patent issues for the legal subdivision on which
the right-of-way is located, and such patentee takes the fee
subject only to the railroad company's right of use and
possession".
The background summary on the Bill by the Congressional Research Service was
done with a slanted bias towards adoption of the Bill. The summary was done In
1984, but It leaves out three cases that were already decided that are most
squarely on point, U.S. v. Union Pac. Railroad, 353 US 112 (1957), Energy Transp.
Sys. v. Union Pac. R.. 606 F.2d 934 (10th Cir. 1979), Aberdeen v. Chicago Transp.
602 F. Supp.589, (Jan, 1984). Also the summary did not mention 43 CFR 2842.1(a)
as quoted above.
The Bill allows an entirely different use of the right of way than was
envisioned more than 100 years ago by the patentees when they acquired their
patents. Homes and businesses are built right next to these right of ways and
changing the use to an open recreational use would be detrimental to the
adjacent properties. An analogy would be abandoning a federal highway and then
building an airport on the abandoned road right of way.
There is no provision in the Bill for condemnation of private property. Due to
existing court precedence, most if not all of the right of ways addressed in the
Bill would have to be condemned in order for the government to take control of
the underlying land. There is no provision in the Bill to provide an appropriation
for condemnation. When the Presidents Commission for American Outdoors report
talked about abandoned railroad right of ways for trails, It talked about strictly
volunteer actions by property owners, no condemnation actions were mentioned or
contemplated.
See the attached legal analysis and Memorandum from Mr. Thomas McFarland.
Mr. McFarland Is an attorney that specializes in railroad abandonment, and ha Is
an expert in right-of-way ownership, both from Bovarnmani grants and
non-government deeds.
All things considered, there is no basis for Senate Bill 1544.
Testimony of National Association of Reversionary Property Owners. Richard
Welsh, Executive Director _2_
116
Law Offices
Belnap, Spencer, McFarland.Emrich & Herman
20 North Wacker Drive
Chicago, Illinois 6O606
Telephone (312) 236-0204
NuelD. Belnap (I69a-I972) Cable Aodress
"ausliaison"
Hahold E.SPENCER February 25, 1988
Thomas F. McFarland, Jr. ■< Peter N.Todhunteh
Richard S.M.Emricu of Counskl
Stephen Ci Herman
Mr. Richard Welsh, Executive Director
National Association of Reversionary
Property Owners
2311 East Lake Sairunainish Place, SE
Issaquah, WA 98027
Re: Senate Bill No. 1544, The National Trails
System Improvements Act of 1987
Dear Mr. Welsh:
You have asked that we analyze the legal effect and
constitutionality of the above Bill.
The Bill would have very little or no legal effect. In
43 U.S.C. 912, the United States assigned its reversionary interest
in land that was granted to railroad companies for use as rights-
of-way, to municipalities or adjacent landowners in the event of
abandonment of such rights-of-way. The Bill proposes to take back
that assignment prospectively. Except with respect to the very
early land-grants for rights-of-way prior to 1862, the Courts have
ruled unequivocally that rights-of-way granted by the United States
were easements only, and that the fee interest in the land remained
in the United States. In that respect, as to rights-of-way granted
between 1862 and 1871, see United States v. Union Pacific Railroad
Co. . 353 U.S. 112, 119 (1957), and Energy Transp. Systems. Inc. v.
U. Pac. R. Co.. 606 F.2d 934, 937 (10th Cir. , 1979). As to rights-
of-way granted after 1871 under right-of-way statutes, including
the General Right-of-Way Act of 1875, see Great Northern Railway
Company v. United States. 315 U.S. 262, 277 (1942), and City of
Aberdeen v. Chicago & North Transp. , 602 F. Supp. 589, 593 (D., So.
Dak., N.D., 1984); see, also. 43 C.F.R. 2842.1(a). Fee title
having remained in the United States, there is no reversionary
interest in the United States upon abandonment of the rights-of-way
upon which either 43 U.S.C. 912 or the Bill could operate. The
same undoubtedly is true of the pre-1862 land-grant rights-of-way;
however, that fact has not yet been judicially determined. In that
the Bill would have such minimal or no legal effect, it will not
accomplish its stated objective of recapturing sufficient rever-
sionary interests of the United States to provide for a self-
financing "trails fund."
117
Belnap, Spencer, McFarland, Emrich & Herman
Mr. Richard Welsh
February 25, 1988
Page 2
Notwithstanding the clear limited effect of the Bill,
some of its background materials suggest that it will be attempted
to be applied to all rights-of-way granted by the United States, on
the incorrect predicate that the United States has a reversionary
interest in all of such rights-of-way. Such an application clearly
would be unconstitutional as a taking of private property for
public use without just compensation in violation of the Fifth
Amendment.
It is argued in the background materials of the Bill that
there would be no such taking because the interest of adjacent
landowners in such rights-of-way under 43 U.S.C. 912 is contingent
and reversionary, so that it does not vest into a constitutionally-
protected interest until actual abandonment of such rights-of-way
occurs. On the contrary, the interest of adjacent landowners in
such rights-of-way derives from their patents of fee title from the
United States (which, as shown, retained such title in the grants) ,
not from or by virtue of 4 3 U.S.C. 912. When the easement for the
right-of-way is abandoned, the adjacent landowners enjoy the use of
the land that they already own. City of Aberdeen v. Chicago S
North Transp. , supra, 602 F. Supp. , at p. 593. Unquestionably, the
fee title of adjacent landowners, vested at the time of their
patents from the United States, is a constitutionally-protected
private property interest under the Fifth Amendment.
It would seem that the Bill should not be enacted because
it will not accomplish its stated legislative objective, but
instead, as apparently sought to be applied, it will engender
extensive constitutional litigation that will not be fruitful for
the United States and that will be costly for its patentees.
In the next several days, I will furnish a memorandum
that provides additional support for the legal conclusions that
appear in this letter. »
Very truly yours,
''\ 1* V VI i V] <: I- (X-v Lvwi- \
Thomas F. McFarland, Jr.
TMcF:ml:3425
85-464 0-88-5
118
MEMORANDUM
LEGAL EFFECTS OF FEDERAL GRANTS
OF RIGHT-OF-WAY TO RAILROADS
I. Types of Federal Grants of Right-of-way
The history of Congressional aid for railroad
construction in the nineteenth century can be divided into two
distinct time periods: (1) 1850-1871 and (2) post-1871.1
The first period began with the Chicago and Mobile Act of
September 20, 1850 (9 Stat. 466) , and ended with the Texas and
Pacific Act of March 3, 1871 (16 Stat. 573). The 1850-1871 period
was noted not only for grants of right-of-way through the public
domain, but also for large grants in fee of square-mile sections in
checker-board fashion to railroads who successfully constructed the
prescribed rail routes. The Acts between 1850 and 1871 caused a
total of over 130 million acres of public land to be eventually
patented to 70 individual railroad companies.
The second period of Federal aid, post-1871, took the
form of rights-of-way only across public lands for railroad
location.
History of Railroad land grants from the following:
Paul W. Gates, History of Public Land Law
Development (P^lblic Land Law Review Commission,
1968) .
Public Aids to Transportation Vol II. Aids to
Railroads and Related Subjects (Federal
Coordinator of Transportation, 1938) .
119
- 2 -
After the Texas and Pacific Act of March 3, 1871,
Congress ended its policy of lavish grants of sectional land to
newly-constructed railroads. Congress passed at least 15 separate
"Right-of-way" acts between 1871-1875 for individual railroads that
needed to locate their right-of-way across public lands and could
not do so by their limited eminent domain powers against Federal
property. Congress therefore passed the General Right-of-Way Act
of March 3, 1875 (18 Stat. 482) to allow any railroad chartered by
a state, territory, or Congress to obtain a 200-foot wide right-of-
way through the public lands.
The Chicago and Mobile Act of September 20, 1850, which
created the Illinois Central and the Mobile and Ohio Railroads, was
a Federal grant to the states of Illinois, Mississippi, and Alabama
for a 200-foot right-of-way and every even numbered section of land
within 6 miles on either side of the actual railroad as con-
structed. The sections of public land patented to the railroad
within 6 miles of the main line were known as "primary lands" or
"place lands." If these even numbered sections were previously
disposed of by the Federal government, then the railroad could
select even numbered "indemnity lands" or "in lieu lands" out to 15
miles on either side of the rail line to make up for a deficiency
in place lands. The railroad right-of-way would cross public land
sections that would remain with the government (odd numbered) and
also sections (even numbered) which the railroad would earn by
construction.
120
- 3 -
The Chicago and Mobile Act was typical of all of the land
grant acts up until the First Pacific Railroad Act of July 1, 1862
(12 Stat. 489) . Those Acts before 1862 were grants to individual
states which acted in a sort of trust capacity for the railroads
until the grant was earned for the company by construction. None
of the pre-1862 Acts (all to states) contained a mineral reserva-
tion, while all of the grants from 1862 to 1871 (some to states and
some to individual railroads) did contain such a reservation.
The Pacific Railroad Act of July 1, 1862 was Federal aid
directly to the Union Pacific and Central Pacific Railroads to
construct the first transcontinental railroad from Omaha, Nebraska
to San Francisco, California. A 400-foot right-of-way was granted
by Section 2 of the Act. Section 3 granted every odd numbered
section of place land up to 20 miles on each side of the railroad
with the exception that mineral land sections could not be
selected.
II. Judicial Construction of Right-of-Way
Property Interests
The Supreme Court in Northern Pacific Railway v. Town-
send. 190 U.S. 267 (1903); classified the railroads' interest in
1850-1871 land grant right-of-way as a "limited fee, made on an
implied condition of reverter in the event that the company ceased
to use or retain the land for the purpose for which it was granted"
(at p. 271). Townsend dealt with the Pacific Railroad Act of
July 2, 1864 (13 Stat. 365) (400-foot right-of-way grant), and
ruled that a homesteader could not use adverse possession to gain
121
- 4 -
title to areas within the right-of-way. Townsend . at p. 272,
reconfirmed the principle that when Congress granted a 400-foot
right-of-way it would have to remain a 400-foot right-of-way, and
neither adverse possession claims nor attempted sale by the
railroad could narrow the width of the corridor. A later act of
Congress allowed the Northern Pacific to alienate the right-of-way
up to 100-feet on either side of the rail line.
The General Railroad Right-of-Way Act of 1875 was first
Interpreted by the Supreme Court in Rio Grande W. Rv. Co. v.
Str inaham . 239 U.S. 44 (1915). The Court, citing Townsend . took
note that the rights granted under the 1875 Act, and similar Acts,
were "neither a mere easement, nor a fee simply absolute, but
rather a limited fee ..." (at p. 47). By the ruling in Strina-
ham. the "limited fee" analysis in Townsend was engrafted on the
Right-of-way Act of 1875. However, 27 years later in 1942, the
Supreme Court would overrule Stringham with respect to the Right-
of-Way Act of 1875.
It was against the background of the Townsend and
Stringham decision, to the effect that both 18^0-1871 and post-
1871 Federally granted rights-of-way were considered to be limited
fees subject to reversion to the United States, that in 1922
Congress enacted the Railroad Right-of-Way Abandonment Act (codi-
fied at 43 U.S.C^ 912). Section 912 provides that upon abandonment
of Federally-granted rights-of-way, the reversionary interest in
the United States would ianediately vest in the person or entity
owning the land traversed by the railroad line, except when the
122
- 5 -
right-of-way was within a municipality, the reversionary interest
would then be vested in that municipality. Thirty-five years
later, in 1957, a Supreme Court decision would raise the issue of
whether Section 912 could be applied to any type of United States
right-of-way grant.
Great Northern Railway Company v. United States. 315 U.S.
262 (1942) overruled the Strinqham case in respect to post-1871
right-of-way, and in particular the Right-of-Way Act of 1875. This
case originated when the railroad attempted to drill for oil and
gas on right-of-way obtained pursuant to the 1875 Act. The
unanimous Court held that the grant was an easement only and did
not include any right to underlying minerals. The Court noted that
the 1875 Act was the result of a "sharp change** in Congressional
policy, and it found it "improbable that Congress intended by it to
grant more than a right of passage, let alone mineral riches** (at
p. 275).
After Great Northern, the type of estates in the 1850-
1871 rights-of-way could still be considered defined by Townsend as
limited fees with reversion to the Federal government and subject
to the Railroad Abandonment Act of 1922. See, for example. United
States v. Illinois Central R. Co. . 89 F. Supp. 17 (E.D., 111.,
1949), aff 'd. . 187 F.2d 374 (1951), (Sept. 20, 1850, Act Right-of-
Way) which found that the oil and gas rights belonged to the
railroad. The Court relied on Townsend in so ruling.
The next important right-of-way case is United States v.
Union Pacific. 353 U.S. 112 (1957).* The Supreme Court followed the
123
- 6 -
rationale of the Court in Kern River v. United States ^ 257 U.S. 147
(1921), rather than Tovmsend. and focused on the purpose of the
grant (i.e., "railroad purposes") and not the duration of the
estate (i.e., "limited fee"). Union Pacific is discussed in a
recent publication of the American Bar Association^ as follows:
In Union Pacific, the United States brought
action to enjoin the Union Pacific Railroad
Company for drilling of oil and gas on the
right of way granted to it under section 2 of
the Union Pacific Act of 1862. In an opinion
by Justice Douglas, the Supreme Court held that
the "mineral lands" exception found at section
3 of the Act (which addressed lands granted in
aid of railroad construction) applied to
section 2 (which addressed the railroad right
of way) , so that the exception found at section
3 of the Act was implied in section 2, result-
ing in an exception of "minerals" in the
section 2 of the right-of-way grant. There-
fore, the Court held, the interest obtained by
the railroad was not a fee simple interest, nor
a "limited fee" interest, but a mere easement.
(Emphasis in original, footnote omitted)
All of the land grant rights-of-way created by Congress
between 1862-1871 have similar mineral reservations, as was
discussed in Union Pacific. But the mineral rights reservation was
not the only reason for the Union Pacific Court and other Courts to
do away with the "limited fee" concapt.
For the purposes of this case, we are not
impressed with labels applied to the title of
railroads in their rights-of-way across the
public lands of the United States. The concept
of "limited fee" was no doubt applied in
2 Thomas E. Root, Railroad Land Grants from Canals to
Transcontinentals . Section of Ni^tural Resources Law - American Bar
Association, Chicago, 111., 1987.
124
- 7 -
Townsend because vuider the common law an
easement was an incorporeal hereditament which
did not give an exclusive right of possession.
With the expansion of the meaning of easements
to include, so far as railroads are concerned,
a right in perpetuity to exclusive use and
possession, the need for the "limited fee"
label disappeared.
(Footnote omitted) State of Wyoming v. Udall.
379 F.2d 635, 640 (10th Cir. , 1967).
The easement ruling in Union Pacific was followed in
finding that coal slurry pipeline could cross the servient estate
(not owned by the railroad) beneath the 1862 Act Union Pacific
Railroad right-of-way easement. Energy Transp. Systems. Inc. v. U.
Pac. R. Co. . (even nximber section, "that it granted only an
easement for the right-of-way cannot be gainsaid") , 435 F. Supp.
313, 317 (D.C. Wyoming, 1977); Energy Transp. Systems, v. Unioa
Pac. R. R. Co. (odd number section, the Union Pacific railroad
". . .by way of its right-of-way easement and within that easement
. . ."), 456 F. Supp. 154, 16S (D.C. Kansas, 1978) both aff'd. at
606 F.2d 934 (10th Cir., 1979).
Does the Union Pacific ruling apply to the 1850-1862
right-of-way? Professor Robert W. Swenson in "Railroad Land
Grants: A Chapter in Public Land Law," 5 Utah Law Review, 456, 461
(1958) , explains that United States v. Union Pacific, lupra, was
based not only on the mineral exception under Section 3 of the Act,
but also upon the construction and meaning to be given the phrase
"the right of way" and that the right-of-way was granted expressly
"for the construction of said railroad and telegraph line."
125
- 8 -
Swenson further notes that if the Union Pacific "... interpreta-
tion of the statute is observed in constructing other grants,
decisions such as the Illinois Central case would seem to be
incorrectly decided." There does not appear to be any case that
answers this question. Perhaps it is because railroad companies
who own 1850-1862 right-of-way prefer to "let sleeping dogs lie."
See, Burke v. Gulf. Mobile and Ohio Railroad Co. , 324 F. Supp. 125,
1129 (S.D. Alabama, 1971).
III. Conclusions
1. The United States does not retain a reversionary
interest in post-1871 right-of-way grants. Because the United
States does not have a reversionary interest in such easement
right-of-way, the Railroad Right-of-Way Act of 1922 cannot now
apply to such rights-of-way when they are abandoned. In regard to
post-1871 right-of-way, any proposed Congressional bill that
purports to retain such Federal right, title, interest, or estate,
as would not be subject to 43 U.S.C. § 912 would be totally
ineffective. City of Aberdeen v. Chicago & Worth Transp. . 620 F.
Supp. 589, 593 (D. , So. Dak., D. , 1984).
When a railroad easement is abandoned, it expires by its
own limitation. When the railroad's interest is merely an ease-
ment, upon abandonment it is appropriate to speak in terms of the
burden of the dominant estate (the railroad easement) being lifted
from the servient estate (the underlying fee) . Schnabel v. County
of DuPaqe. 101 111. App.3d, 553, 559; 428 N.E. 671 (111. App. Ct. ,
126
- 9 -
1981); Brown v. Weare. 348 Mo. 135, 152 S.W.2d 649 (Sup. Ct. , Mo.,
1941) ; See, also. "Railroad Right of Way: The Real Property
Interest in Kansas," 25 Washburn Law Journal 327, 342 (1981).
2. The same analysis as given to post 1871 right-of-
way is applicable to 1862-1871 right-of-way grants by reason of
Union Pacific and the Energy Transp. System cases.
3. The analysis applied to post-1871 and to 1862-1871
right-of-way could very well be applied to 1850-1862 right-of-way.
It is likely that future litigation on 1850-1862 right-of-way will
result in a finding that they are also easements with no reversion-
ary interest to the United States.
4. From a constitutional standpoint, the fee title of a
patentee of the United States to all of the rights-of-way described
above vests at the time of the patent from the United States, not
at the time of abandonment of the easement. Therefore, an attempt
by the United States to recapture that fee title requires that just
compensation be paid under the Fifth Amendment to the Constitution.
THOMAS F. McFARLAND, JR.
Belnap, Spencer, McFarland,
Emrich & Herman
20 North Wacker Drive
Chicago, IL 60606
February 26, 1988
127
Senator Metzenbaum. Mr. Richard Krause, Assistant Counsel of
the American Farm Bureau Federation.
We are happy to have you with us, sir.
STATEMENT OF RICHARD L. KRAUSE, ASSISTANT COUNSEL,
AMERICAN FARM BUREAU FEDERATION, PARK RIDGE, IL
Mr. Krause. Thank you, Mr. Chairman. I am happy to be here.
As Mr. Chairman said, my name is Richard Krause. I am Assist-
ant Counsel with the American Farm Bureau Federation in Park
Ridge, IL. We do appreciate the opportunity to present our views
on S. 1544, which is the National Trails System Improvement Act.
One of the primary interests of the Farm Bureau is the protec-
tion of the private property rights of farmers and ranchers, many
of whom own property rights abutting railroad rights-of-way. The
National Trails System Act and its proposed amendments adverse-
ly impact these property rights.
While we do not oppose the development of recreational trails,
per se, we do have some very serious concerns about the lengths to
which the acts in general, and S. 1544 in particular, disregard
these private property rights in order to preserve trail corridors.
Section 3 of the bill is of most concern to us. It would provide that
the reversionary interest to railroad rights-of-way through public
lands described in 43 U.S.C. 912 would remain in the United States
and provide a scheme for their disposition.
Section 43 U.S.C. 912, enacted in 1922, expressly granted any
present and future rights that the United States might have had in
those rights-of-way to land owners or municipalities whose proper-
ty abuts them. Now, for purposes of this statement, we are not
taking a position one way or the other as to whether these rights of
the United States were granted by the 1922 » act or by patent. In
either event, there is nothing left for the United States to retain.
All right, title, interest and estate of the United States in these
rights-of-way described in 43 U.S.C. 912 have already been fully
conveyed to abutting property owners, either by the patent or by
the 1922 act, and there is thus no further interest of the United
States that can be retained or otherwise disposed of as provided in
section 3 of the bill. The United States cannot dispose of property
that it no longer owns.
If, however, the intent of the bill is to reclaim these property
rights from land owners, the fifth amendment to the Constitution
requires that these land owners be compensated. The fifth amend-
ment prohibits the taking of private property for public use with-
out just compensation. Both the nature of the interest sought to be
reclaimed and the expressed public use application of the right-of-
way makes the fifth amendment squarely applicable to section 3
of this bill.
The Supreme Court has variously construed the rights granted
by Congress to the railroads, and by implication, the rights that
are retained by the grantor. Some cases hold that the railroads ac-
quired nothing more than an easement across public lands with the
right of reversion to the owner of the underl5dng property. In most
cases, since these lands have already been patented, the lawful
owners are private parties. The reversion automatically vests and
128
the right of possession is in the owner when the land ceases to be
used for the railroad purposes.
As Mr. Welsh mentioned, these have been specifically applied in
railroad rights-of-way since 1871.
Earlier decisions had construed pre-1871 grants as being what
they called determinable fees under which the railroad has the
property so long as it is used for railroad purposes. Upon cessation
of that use, the property reverts to the person who had made the
grant, or to anyone to whom he has transferred his interest. This
retained right on the conveyance of a defeasible fee is called the
possibility of a reverter. The legislative history of the 1922 act and
at least one court decision indicate that this interpretation of the
railroad interest was the rationale for Congress' enactment of the
1922 act through which they finally disposed of all these inter-
ests.
It might be mentioned that just prior to the 1922 act, there were
two Supreme Court cases which specifically held that the rights-of-
way were defeasible fees with an implied right of reverter.
Regardless of whether the retained interest is a reversion or a
possibility of reverter, both interests easily fit within the broadly
defined private property, rights that are protected by the fifth
amendment. While neither a revision or a possiblity of reverter
are a right to present possession, both are considered present, valid
property rights. They both have present value.
In most states, both can be freely bought and sold. Also, in most
states, both are capable of being inherited and of being conveyed by
will.
The present interest of the United States in these rights-of-way
was expressly conveyed by the 1922 act. Since 1922, many of these
interests have passed from party to party by one or more of these
means, even though the owner of this right does not have the cur-
rent right to possession of the subject property. These are incidents
of ownership of property rights which the Supreme Court has re-
peatedly held to be protected by the fifth amendment's taking
clause.
The confiscatory nature of current and proposed amendments to
the National Trails System Act, in derogation of the rights of pri-
vate land owners, has been at least tacitly recognized by the
United States Justice Department. The American Farm Bureau is
participating in a case currently pending in Missouri challenging a
similar provision of the act relating to private easements, with one
of the grounds being that the section at issue violates the fifth
amendment.
The United States is participating in the case as an intervenor-
defendant, and has significantly chosen not to contest our fifth
amendment taking claims.
Mr. Chairman, simply stated, this bill goes too far. We therefore
oppose enactment of S. 1544. We do not think that non-passage of
this bill would have any adverse impact on prudent trail develop-
ment because State and local governments as well as private enti-
ties are still able to negotiate trail rights from the present legal
owners of the reversionary interests of this property.
Mr. Chairman, we thank you for the opportunity to present our
views on the bill.
[The prepared statement of Mr. Krause follows:]
129
STATEMENT OF THE AMERICAN FARM BUREAU FEDERATION
TO THE SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
SUBCOMMITTEE ON PUBLIC LANDS
March 3, 1988
Presented by
Richard L. Krause
My name is Richard L. Krause, Assistant Counsel of the American
Farm Bureau Federation. We appreciate the opportunity this afternoon
to present our views on S. 1544, the "National Trails System
Improvement Act of 1987."
One of the primary interests of Farm Bureau is the protection of
the private property rights of farmers and ranchers, many of whom own
property abutting railroad rights-of-way. The National Trails System
Act and its proposed amendments adversely impact these property
rights. While we do not oppose the development of recreational
trails per se, we do have very serious concerns about the lengths to
which the Act and S. 1544 disregard these private property rights in
order to preserve trail corridors.
Section 3 of the bill is of most concern to us. It would
provide that the reversionary interests to railroad rights-of-way
through public lands described in 43 U.S.C. 912 would remain in the
United States, and provides a scheme for their disposition. Section
43 U.S.C. 912, enacted in 1922, expressly granted any present
and future rights that the United States might have had in those
rights-of-way to landowners or municipalities whose property abuts
them.
Section 3 of the bill therefore has no meaning or effect. All
"right, title interest, and estate of the United States" in the
rights-of-way described in 43 U.S.C. 912 have already been fully
conveyed to abutting property owners by the 1922 Act, and there is
thus no further interest of the United States that can be retained
or otherwise disposed of as provided in section 3. The United States
cannot dispose of property that it no longer owns.
If, however, the intent of the bill is to reclaim these
previously conveyed property interests from the abutting landowners,
the Fifth Amendment to the Constitution of the United States requires
that these landowners be compensated.
The Fifth Amendment prohibits the taking of private property for
public use without just compensation. Both the nature of the
interest sought to be reclaimed and the express "public use"
application of the rights-of-way makes the Fifth Amendment squarely
applicable to section 3 of the bill.
The Supreme Court has variously construed the rights granted
by Congress to the railroads, and by implication the corresponding
interests that were retained. Some cases hold that railroads
acquired nothing more than an easement across public lands, with a
85-^64 0 - 88 - 6
130
PAGE TWO
right of reversion to the owner of the underlying property. In most
cases, since these lands have been patented, the lawful owners are
private parties. The reversion automatically vests the right of
possession in the owner when the land ceases to be used for railroad
purposes. This construction has been specifically applied to
rights-of-way granted after 1871.
Earlier decisions had construed pre-1871 grants as being
"determinable fees," under which the railroad has the property so
long as it is used for railroad purposes. Upon cessation of such
use, the property reverts to the person making the grant or to anyone
to whom he has transferred his interest.
This retained right is called a "possibility of reverter." The
legislative history of the 1922 Act and at least one court decision
indicate that this interpretation of the railroad interest furnished
the rationale for Congress to finally dispose of these interests once
and for all through the 1922 Act.
Regardless of whether the retained interest is a "reversion"
or a "possibility of reverter," both interests easily fit within
the broadly-defined "private property rights" protected by the Fifth
Amendment. While neither a reversion nor a possibility of reverter
are a right to present possession, both are considered present,
valid, vested property rights. They both have present value. In
most states, both can be freely bought and sold. Also in most
states, both are capable of inheritance and conveyance by will. The
present interest of the United States was expressly conveyed by the
1922 Act. Since 1922 many of these interests have passed from party
to party by one or more of these means, even though the owner of this
right does not have the right to current possession of the subject
property. These are "incidents of ownership" of property rights
which the Supreme Court has repeatedly held to be protected by the
Fifth Amendment.
The confiscatory nature of current and proposed amendments to
the National Trails System Act in derogation of the rights of private
landowners has been at least tacitly recognized by the U.S. Justice
Department. AFBF is participating in a case currently pending in
Missouri challenging a similar provision of the Act {16 U.S.C 1247d}
relating to private easements, with one of the grounds being that the
section at issue violates the Fifth Amendment. Participating as an
intervenor-defendant, the Justice Department has significantly chosen
not to contest our Fifth Amendment taking claims.
Simply stated the bill goes too far. We therefore oppose
enactment of S. 1544. There should be no adverse impact on prudent
trail development, because state and local governments, as well as
private entities, could still negotiate such trail rights from the
present legal owners of the reversionary interests of the land.
We appreciate the opportunity to offer our views on S. 1544.
131
Senator Metzenbaum. Thank you very much.
There seems to be some question, Mr. Krause, as to what is the
fact as to who owns the land at the moment. The 1922 law, which
we are amending, provides on its face that the Federal interests
will not transfer or vest in adjacent property owners or municipali-
ties until rail use has ceased, correct?
Mr. Krause. That is what the bill says. Your Honor, or that is
what the law says. That is what the section says.
Senator Metzenbaum. That is what the act of 1922 says.
Mr. Krause. That is correct.
Senator Metzenbaum. All right. That means to me that the
United States retains its interest until abandoned.
Mr. Krause. No, Mr. Chairman, I beg to disagree with you on
that, and in order to explain the reason I disagree, I think we
ought to look back to the situation that existed in 1922. In the first
place, as I mentioned, there were a couple of Supreme Court deci-
sions that had recently come down stating that the railroad inter-
est is a defeasible fee with an implied right of reverter, and that
impHed right of reverter is a legally recognized, valid property in-
terest which becomes possessory upon defeasance of the fee.
Well, I will get into that. In any event, those two Supreme Court
cases, one of which has been overruled, by the way, and the other
one which has been largely eroded, but in any event, the situation
facing Congress in 1922, they thought that they owned the possibil-
ity or the right of reverter to these railroad interests as defined by
the Supreme Court.
Now, these rights of reverter are present property rights. As I
mentioned in my testimony, they are capable of being bought and
sold, capable of being inherited, capable of being conveyed by will.
Senator Metzenbaum. Well, you say that, sir. Where do you get
that authority to make that statement?
Mr. Krause. Mr. Chairman, rights of reverter are created by the
use of the future tense, and if I might, I do have a book here on
property rights, on defeasible fee, and this is Cornelius Moynihan's
book "Introduction to the Law of Real Property." In here he cites
an example of the grant and the reservation of a possibility of re-
verter, to have and to hold to B and his heirs so long as the land is
used for residential purposes, and when the land is no longer so
used, it shall revert to A and his heirs.
Now, Moynihan says that A and his heirs have a present proper-
ty right to take possession upon the occurrence of that condition.
Senator Metzenbaum. That is a different thing than what we
are talking about here.
Mr. Krause. No, it is not, Mr. Chairman. It is not a different
thing because this is what Congress thought they had. This is what
Congress thought that the United States had in 1922 as determined
by the Supreme Court.
Senator Metzenbaum. Well, I think, Mr. Krause, I would take
strong exception to what you are saying because the Congressional
Research Service, which is an arm of the Library of Congress,
comes up with a conclusion that the draft bill prospectively makes
a different disposition of the Federal interest, retaining title to
abandoned or forfeited rights-of-way in the Federal Government in
132
order to facilitate their subsequent use as part of the National
Trails System.
The bill does not affect existing vested titles, and there can be no
doubt that the Federal Government can make whatever disposition
of its own property it chooses. And then it goes on.
Mr. Krause. You are right, Mr. Chairman. I think what the Con-
gressional Research Service is doing is they are confusing current,
present, vested rights of possession with property interests. And no-
where is this area more confused, for example, than in the area of
future interests. Future interests, by definition, do not vest posses-
sion until some later time. However, they are still recognized as
present, valid property rights.
And I think Mr. Chairman, I think it is also important to recog-
nize, too, that the statute, the 1922 statute, I think it would give
credit to the Congress back in 1922 to interpret that as being a
present conveyance of United States interests. The fact that the
conveyance is done, expressly reserves mineral rights, number one,
in the law; number two, provides that the conveyance or provides
that title is going to vest automatically without an5d;hing else
having to be done, no other deeds or anjrthing else to come, sug-
gests to met that Congress intended to fully convey those rights as
of 1922, with possession to take place and with full title to vest at
the time they became possessory, whenever the railroad stopped
using them for railroad interests.
Senator Metzenbaum. I would say that the Solicitor for the De-
partment of Parks and the Interior Department I think come to a
different conclusion, although they suggest some changes.
Mr. Krause. I have not seen that, Mr. Chairman.
Senator Metzenbaum. Well, they have not come up with the lan-
guage, yes.
Second, certainly Congress can change its mind about disposition
until such time as the conveyance occurs.
Third, Mr. Welsh's lawyer says the bill means nothing at all, it is
a nullity, so you do not have to worry about it.
Fourth, I think that Congress has to do that which it thinks it
has a legal right to do, and then if somebody wants to challenge it
in court, the wonderful system of laws that we have in our country
make that possible. But I think we ought to do that which we think
is right.
Mr. Krause. Mr. Chairman, as we are learning in this Missouri
case, you are correct that Congress can do that which they think in
those situations. However, the fifth amendment allows them to do
that; although I think in this case the fifth amendment would re-
quire that compensation be paid, and if compensation is not paid,
then it violates the Constitution.
Senator Metzenbaum. Well, it sounds like an interesting legal
matter. I do not think I will handle the case; maybe you will.
With that, our hearing stands adjourned.
[Whereupon, at 3:37 p.m., the hearing adjourned.]
APPENDIX
Additional Material Submitted for the Record
society (on American ARChaeology
statement before the
Subconunittee on Public Lands, National Parks and Forests
Senate Coimnittee on Energy and Natural Resources
Hearing on Fiscal 1989 Budget for the Department of Interior
March 3, 1988
Mr. Chairman, the Society for American Archaeology is
pleased to have the opportunity to present this testimony. The
continued interest and support of your Subcommittee is a major
stimulus for archaeological resource protection, research and
interpretation throughout the United States.
The Society for American Archaeology (SAA) is an interna-
tional scholarly and professional association comprised of both
professional and avocational archaeologists concerned about the
discovery, interpretation and protection of the circhaeological
heritage of America. As such, the SAA has had a long partnership
with the Department of the Interior and other federal land
managing agencies to help preserve and promote the nation ' s
cultural and natural resources.
This year the SAA has several specific funding requests to
bring to your attention.
NATIONAL PARK SERVICE
Operations of the National Park System
Proposed Reductions of Base Funding:
The Society is greatly concerned about the Administration's
proposed reduction in the Park Operations budget. The requested
cut of $52.2 million in federal funding, to be supplemented by
fee collections, seems to contradict the intention of the
enabling legislation.
Indeed, as we understand it, the intent of the park fee
legislation was not to substitute federal appropriations, but
rather to supplement them. Activities which had not fully
benefitted from direct federal appropriations were to receive
(133)
134
The resources that need this funding are fragile and
irreplaceable. They include, among other things, some of the
most significant archaeological sites in the world. To cut
funding for work that is so needed for the protection of these
sites would be a violation of the public trust that has been
placed in the Park Service since it was established in 1916.
Such a reduction would also be economically unwise, as future
costs to do the work will be much higher.
We hope that you will reject the Administration's short-
sighted approach and that you will provide sufficient funding
for the ONPS to reflect both Congressional intent and to meet the
real resource protection needs for which the original park fee
legislation was enacted.
El Malpais National Monument
We urge you to increase the level of funding for the El
Malpais National Monument, an area that contains outstanding ar-
chaeological resources reflecting much of the long and intriguing
cultural history of the Southwestern United States. The Ad-
ministration requested $100,000 for park operations for the
monument. The Society supports increasing this to $250,000.
Associated with El Malpais is the Masau Trail. This trail
links many of the most important and impressive remains of
prehistoric and historic sites in the Southwest including Chaco
Culture Historic Park, Pecos and Aztec National Monuments as well
as El Malpais. $250,000 is needed to develop the interpretive
programs for this trail. In addition, nearby Salinas National
Monument is an outstanding example of historic pueblo structures
and introduced Spanish conquest structures. Salinas needs
$500,000 for ruin stabilization and maintenance.
Anti-looting
As you know, the SAA has made a major initiative to stop the
looting and vandalism of archaeological and cultural resources
throughout the nation. In this light, we urge you to recommend an
addition of not less than $1 million in the ONPS budget for anti-
looting efforts in units of the National Park System. This is
the same as was earmarked in the fiscal 1988 appropriations.
Looting of archaeological sites is a national problem, one
that is destroying our nation's cultural heritage. This outright
criminal action is increasing by all accounts. The recent GAO
report, "Cultural Resources: Problems Protecting and Preserving
Federal Archeological Resources" (1987) highlighted the serious-
ness of the problem and recommended increases in funding,
training and law enforcement. We must all recognize the
seriousness of this problem. If something is not done soon there
will be no intact archaeological sites left in the United States.
Archaeological resources are like endangered species: Once
destroyed, they are gone forever.
135
Looting threatens national park resources as well as those
in national forests and public lands. (Looting also destroys
resources on private lands, and thought must be given soon on
what can be done to prevent this too.) In the case of the NPS
and other Federal agencies, there are urgent needs for stronger
enforcement of the Archaeological Resources Protection Act
(ARPA) , for increased staffing and funding for archaeological
protection, and for more public awareness and education.
Curation
Last year Congress appropriated $2.73 million to begin a
multi-year project for the cataloging and curation of the vast
NPS collections. Over 70% of these collections are archaeologi-
cal in nature and require special care. This year, the Adminis-
tration requested no funding to continue this program. This is a
massive undertaking and requires an enormous amount of work if it
is to be done and done well. We urge your Committee to support
sufficient funding within the ONPS budget to provide $2.8 million
to continue this important program.
National Recreation and Preservation Programs
The SAA deplores the Administration's attempt to cut the
funds for the National Register Programs from the $7.8 million
appropriated for fiscal 1988 to $7.3 million for fiscal 1989.
We urge you to restore the funds for these programs, including
funds for the Historic American Buildings Survey (HABS) and
Historic American Engineering Survey (HAER) .
Departmental Consulting Archeoloqist
Included in the National Preservation Programs account is the
Office of the Departmental Consulting Archeologist (DCA) . The
DCA is responsible for coordinating the overall federal arch-
aeological program. In this capacity the DCA office needs
additional funds to continue its efforts in anti-looting, law
enforcement, employee training, and information clearing houses.
We request that an additional $100,000 be appropriated and
earmarked specifically for the DCA office for these activities,
the same amount that you added for fiscal 1988.
Historic Preservation Fund
The SAA supports the efforts and requested amount of $150
million for the Historic Preservation Fund made by the National
Conference of State Historic Preservation Officers. This is the
sum annually authorized by the National Historic Preservation
Act. Considering the preservation needs facing the United
States today, it is a reasonable amount to request.
136
For archaeology, the Historic Preservation Fund's matching
grants to the States serve two major functions: (1) to assist
with surveys, investigations, analyses and interpretation of
archaeological sites and their resources; and (2) to support
state activities in the review process which protects sites from
federally funded undertakings pursuant to Section 106 of the
National Historic Preservation Act. Among other things, the
State share of the Fund is also used to nominate archaeological
sites to the National Register of Historic Places.
A recent "needs assessment" by the National Conference of
SHPO's shows how States regard archaeological resources as
important to their history. Many States highlighted archaeolog-
ically related projects. The need is great. Unlike historic
buildings which may get tax credits or gain economic value from
private investment, archaeological resources do not benefit from
market-oriented approaches. Archaeology, by the nature of its
subject matter, depends a great deal on government support. The
State-funded programs are essential to assuring that archaeologi-
cal and other historic preservation activities are carried out as
Congress intended.
Land and Water Conservation Fund
The Land and Water Conservation Fund (LWCF) provides an
important tool for national, state and local land acquisition,
planning, and development of parks and recreational areas. The
SAA urges your Subcommittee to recommend, as you have in the
past, substantial increases in both the State and Federal sides
of the LWCF.
State and Local LWCF Programs:
Of the total amount we are requesting for the LWCF, an
estimated $200 million is needed for the state matching grants.
Many archaeological and historical resources have benefited from
the State side of the LWCF, Sites ranging from Indian burial
grounds, pre-Revolutionary War forts, industrial period sites.
Civilian Conservation Corps buildings and others have been
incorporated into parks and recreation areas.
The State side of the LWCF is important to preserving and
protecting both natural and cultural sites. Studies have shown
that there are $340 million in grant applications currently
pending and a needs estimate for the next three years of $1.9
billion. Therefore, $200 million is a reasonable, usable amount.
Federal Side. National Park Service:
The Federal side of the LWCF has also benefited archaeologi-
cal and historical resources through the acquisition of lands and
structures in new and expanded units of the National Park System.
137
The Cuyahoga Valley National Recreation Area in Ohio, for
example, contains over 25% of the archaeological resources in
the entire midwest region of the National Park Service.
Similarly, significant archaeological sites have been acquired at
other new areas, including the Santa Monica Mountains National
Recreation Area in California.
In the Administration's budget, federal funds for the LWCF
Fund are proposed to be cut drastically below the needed level.
The Society supports the requests made by the National Parks and
Conservation Association and the Wilderness Society for $675
million for the Federal side of the Land and Water Conservation
Fund, of which over $190 million would be earmarked for the NPS
acquisition program. Among the projects, the SAA would encourage
the earmarking of about $5 million for the acquisition of
inholdings within the newly authorized El Malpais National
Monument in New Mexico.
THE FISH AND WILDLIFE SERVICE
The SAA requests that this Committee secure add-on funding
for the Fish and Wildlife Service (FWS) to begin an agency-wide
effort to document and protect archaeological resources. The
Society recommends that $600,000 be appropriated for use by the
FWS in fiscal 1989 for these purposes. This funding should be
placed in the Refuge Operations Activity section and should be
earmarked for necessary work that is not funded by the FWS for
compliance with section 106 of the National Historic Preservation
Act or for special appropriated projects such as the archaeologi-
cal work that is underway at Stillwater National Wildlife Refuge
in Nevada.
Refuge Programs;
FWS has jurisdiction over approximately 90 million acres of
land, constituting one of the largest, protected administrative
systems of land and water in the United States. .Many of these
lands have been acquired or designed by the federal government in
an effort to protect valuable wildlife habitat, wetlands, and
other resources for public use and scientific study. In addition
to protecting our wildlife, however, it is important to note that
this system contains thousands of archaeological sites that
provide evidence of past human adaptation to the natural
environment. Funding for completion of basic surveys and
archaeological resource protection work for compliance with
federal historic preservation requirements has been and continues
to be lacking.
The FWS does not have a separate fund for the inventory and
protection of archaeological and historic sites on its lands.
Archaeological inventories are funded largely through individual
agency undertakings as part of project costs. This results in an
138
inefficient, piece-meal approach to managing the agency's
archaeological sites. The most recent statistics compiled by the
Secretary of the Interior through the end of fiscal 1986 indicate
that the FWS has completed inventories on less than 1% of its
lands, a smaller percentage than other land managing agencies.
Without sufficient documentation, it is difficult to reach
an accurate assessment of the condition of archaeological sites
managed by the FWS . As your Subcommittee knows , recent trends
suggest that this country's archaeological record is being
destroyed at an increasing rate. At recent hearings conducted in
Colorado by the House of Representative's Committee on Interior
and Insular Affairs, the Service estimated that between 30% to
50% of its archaeological sites located in the southwestern
United States had been partially looted or destroyed. The
Society for American Archaeology feels that this destruction and
deterioration is part of a larger national trend that deserves
the immediate attention of the Congress and the Service.
Stillwater National Wildlife Refuge;
The Stillwater National Wildlife Refuge is in need of an add-
on of $250,000, earmarked specifically to continue the salvag'e
archaeology of human skeletons begun in response to massive and
unexpected erosion in 1987. The human skeletal remains have
been exposed to natural elements, as well as looters and vandals,
due to snow melt erosion. Remains of over 120 individuals have
been discovered. These must be professionally excavated, docu-
mented and studied prior to reinterment.
BUREAU OF LAND MANAGEMENT
The Bureau of Land Management (BLM) has responsibility for
the nation's largest collection of public lands. On these lands
are some of the most diverse cultural resources in the country.
The SAA opposes the Administration's recommendation to reduce the
level of Cultural Resource Management funding by $380,000 from
fiscal 1988.
Cultural Resources Management;
The SAA strongly supports restoring the $380,000 and
increasing the overall Cultural Resources Management funding by
at least $500,000. Restoration to the fiscal 1988 level would
enable BUI cultural resource staff to continue base inventory and
evaluation. The increase of $500,000 would allow BI21 the
staffand funds they need to meet the problems documented in the
GAO report, "Problems Protecting and Preserving Archeological
Resources" (1987) . BLM cannot meet the challenges without add on
funds earmarked for archaeological site protection, stabiliza-
tion, site signing, patrols and ranger support.
139
Resource Protection;
In addition, the SAA strongly supports an add on of $900,000
in the Resource Protection Division for law enforcement for
investigation, equipment, informants, cooperative agreements,
training, surveillance and travel related to enforcement of the
Archaeological Resources Protection Act (ARPA) and other federal
statutes. The Administration recommended $3,530 million for
the Resource Protection Division. This is the same level as last
year. Resource Protection has been functioning at the same level
of funding for several years, yet has been faced with increasing
responsibilities and duties without additional funding. The
Resource Protection division is responsible for investigation and
prosecution of all federal laws including ARPA. In 1987, the
division investigated 43 counts under Antiquities Theft and
Destiinction. It is estimated that they will address 59 by the
end of 1988 and 66 in 1989.
THE OFFICE OF SURFACE MINING
Mr. Chairman, this is one case where we are not asking for
any additional funding. We urge the Committee to look at the way
the Office of Surface Mining Reclamation and Enforcement (OSM)
manages their requirements under section 106 of the National
Historic Preservation Act. Currently, the SAA has joined, in an
"amicus" capacity, litigation brought by several other national
organizations including the National Trust for Historic Preserva-
tion and the Society of Professional Archaeologists (SOPA)
against OSM. The suit challenges the regulations developed by
OSM for the consideration of archaeological resources during
surface coal mining and OSM's overall failure to comply with
federal preservation laws. We urge you to look into this manner,
and would be happy to supply any further information you might
need on it.
THE FOREST SERVICE
*
The Society is greatly concerned about the Administration's
proposed reduction in the Recreation Management Program line
item for Cultural Resource Management. The Agency identified a
need for $18.7 million for cultural resource projects. The
Administration cut that to $12.2 million. This is below the
fiscal 1988 level.
Cultural Resources Management. Project Related Work
The Forest Service identified a minimum of $15 million needed
for project-rrelated work including timbers sales, road construc-
tion, land exchanges, and watershed projects just to keep in
compliance with the National Historic Preservation Act. The SAA
supports this amount.
140
Forest Service Special Initiatives
In addition, the SAA recommends the Subcommittee provide $3
million for special initiatives in program management activities
including survey of areas of high cultural resource potential
that were not scheduled for development (wilderness areas, etc.)?
inspection and monitoring of important properties to determine
condition and need for protection, interpretation of selected
properties for the education and benefit of the visitors,
stabilization of selected properties threatened with imminent
collapse or deterioration, development of management systems and
databases to improve control of property records and collections,
development of improved management techniques, and the evaluation
of some of the backlog of unevaluated cultural properties (now
exceeding 80,000 properties Nationwide).
Challenge Agreements and Other Innovative Programs
Challenge Agreements offer an innovative approach to cultural
resource management. The SAA urges the Subcommittee to ear mark
$500,000 in Fiscal 1989 for the Forest Service to pursue these
matching grants. The Forest Service used $500,000 in Fiscal 1988
and the result is over $1 million in cultural resource work.
Agreements were made with county or city governments, private
corporations, private organization including the Boy Scouts of
America, local historic preservation organization and groups with
special interest in particular projects.
The use of volunteers or hosted program is yet another
approach to getting a lot for a little. On the Superior National
Forest in Minnesota, experts estimate that for approximately
$5,000 last year, the Forest Service received over $40,000 in
work equivalent. This is a 1:8 ratio. Most of the participants
in the Superior project are volunteers or work study students
from the University. Many other forests use senior citizens for
similar projects.
There are many exciting projects which could be accomplished
for a small federal input. For example, an add-on of less than
$40,000 would begin a Native American oral history program to
train Native American students to collect oral histories from
tribal elders who once lived on what is Superior and Chippewa
National Forests. The advantage of this type of program is that
it offers training opportunities for minorities, enables the
Forest Service to complete required work including revision of
Forest plans and treaty rights. It supplements the forest
history program in addition.
Washington Office Staffing Needs
The SAA also supports the request for $.2 million for the
Washington Office to increase staff by two full time cultural
resource persons and to implement new cultural resource manage-
ment initiatives.
8
141
It is vital to the continued protection of the resources
under the stewardship of the Forest Service that sufficient staff
be available in the Washington Office to provide the needed
coordination, training and assistance to the Forest Service
staff. At present the Washington Office has a Cultural Resource
Management staff of one person to provide these services to the
entire Forest Service. A one person staff is seriously limited in
the number of new initiatives that can be undertaken. Increas-
ing the Washington Office by two full time staff persons will
permit the expansion of the program into areas where work is
urgently needed. This is key to the success of most of the other
initiatives. A strong Washington Office effort is necessary to
be successful in addressing these issues.
Specific report language
In addition to these funds, the Society requests the
Committee include specific language encouraging the Forest
Service to take a proactive approach to cultural resource
management and to address the needs of non-project related
cultural resource protection and resource enhancement.
CONCLUSION
The Society for American Archaeology recognizes that there
is a large budget deficit and that under current deficit
reduction laws additional funding for Federal programs is
difficult to achieve. Budgets should be balanced in such a way
that the public's interest is protected. The SAA feels strongly
that the budget should not be "balanced" to the detriment of our
nation's natural and cultural resource programs. We ask the
Committee to continue to show concern and support for these vital
programs by supporting our requests.
142
SUMMARY OF AMOUNTS REQUESTED
NATIONAL PARK SERVICE
Operation of the National Park System (ONPS)
o Base Funding, $52.2 million to restore base funding which
the Administration proposes be made up by fees.
o El Malpais, $250,000 for park operations,
$5 million land acquisition
$250,000 for interpretation and development
of the Masau Trail
$500,000 for stabilization of Salinas
National Monument
o Anti-looting, $1 million
o Curation, $2.8 million
National Recreation and Preservation Programs
o National Register Programs
$345,000 HABS/HAER
$100,000 Dept Consulting Archaeologist
Historic Preservation Fund
$150 million for State Historic Preserva-
tion programs and National Trust for
Historic Preservation
Land and Water Conservation Fund
$857 million, with $200 million directed to
state funding
FISH AND WILDLIFE SERVICE
Refuges and Wildlife Activity, for Refuge Operations
o Base inventory $600,000
o Stillwater National Wildlife Refuge data recovery $250,000
BUREAU OF LAND MANAGEMENT
Cultural Resource Management
$380,000 restoration
$500,000 add on
Resource Protection $900,000
FOREST SERVICE
Recreation Management Program - Cultural Resource Management
o Cultural Resource Management
$15 million
o Special Initiatives
$3 million
o Challenge Agreements
$.5 million
o Washington Office staffing and initiatives
$.2 million
143
S. 1544, THE NATIONAL TRAILS SYSTEM IMPROVEMENTS ACT
STATEMENT BY THE NATIONAL RECREATION AND PARK ASSOCIATION
MARCH 3, 1988
The National Recreation and Park Association supports the
passage of S. 1544, the National Trails System Improvements
Act.
NRPA and its state affiliates are composed of
approximately 45,000 individuals, agencies, and organizations
who guide, develop, and manage recreation and park services and
resources. Many of our members are state and local park and
recreation departments who are often instrumental in the
conversion of rail-trails, as well as their ongoing management
and maintenance.
As far back as 1977, NRPA has consistently recognized the
value of, and threats to, abandoned rail corridors. In a 1977
NRPA report on this topic, a former executive director wrote,
"With today's skyrocketing land prices, construction,
maintenance, and operation costs, the spider web network of
railroad rights-of-way is being compromised as they are sold
for housing, developments, agriculture, or other non-linear
uses. Park, recreation, and conservation interests [have been]
quick to recognize the open space, linear recreation use of the
abandoned rights-of-way." NRPA does not advocate the
abandonment of rail services. However, when and where
abandonment is considered and ultimately occurs, we advocate
full consideration for recreation and conservation goals. S.
1544 will help reduce the threat of piece-meal loss and
preserve more railroad rights-of-way for public recreational
purposes. ^
Due to their linear nature, railroad rights-of-way create
excellent recreational corridors. We consider such corridors
to be a necessary element of America's natural and recreational
resource system. They provide close to home recreational
opportunities; they connect, and consolidate management of,
fragmented public lands; and they provide parks with buffers to
encroaching development.
We support this legislation's requirement that federally
granted railroad rights-of-way be returned to the federal
government upon their abandonment. What originally belonged to
the American public should once again be theirs for recreation
use and enjoyment.
We also consider the bill's language allowing state and
local governments or organizations to manage rights-of-way for
public recreational purposes to be a significant development in
federal/state/local partnerships in conservation and
recreation. With today's escalating real estate values, local
144
governments and organizations, in particular, are often unable
to invest large sums of money in acquiring railroad
rights-of-way. They are frequently discouraged by the costs of
recreation development, as well as ongoing maintenance and
management. The combination can be insurmountable to even a
fiscally strong jurisdicition. However, with an opportunity
for a transfer of the right-of-way by the federal government,
it is much more likely that local government would be willing
to absorb other costs.
While there are no federally granted rights-of-way east of
the Mississippi, there do exist countless potential rail-trail
conversions that are owned in fee simple by the railroads. ^s
I mentioned, local governments and organizations often find it
impossible to compete with developers and other large
for-profit institutions for an abandoned right-of-way. The
Interstate Commerce Commission has compounded this problem by
providing only the briefest span of time for public entities to
make an offer on an abandonment before the rail carrier can
begin selling off portions of the right-of-way. Once a single
portion of a right-of-way has been sold, its linear
recreational value is seriously impaired.
Additional legislation may be necessary to clarify the
intent of Congress on the ICC ' s responsibilities to public
entities. Rail-trail conversions are always complicated and
stringent ICC regulations have made them even more so.
NRPA does not endorse the creation of a separate fund to
aid general trail development versus some other type of
recreation resource. This type of assistance has and should
continue to be available from an improved Land and Water
Conservation Fund. However, we do support a revolving loan
fund as outlined in the legislation to specifically address
state, local, and private non-profit efforts to quickly and
effectively participate in rail conversion projects. Further,
we believe that no less than 75% of the fund should be
available annually to non-federal entities for rail-trail
activities .
We also suggest that the subcommittee consider including a
loan guarantee provision in S. 1544. A guarantee from the
Secretary of the Interior would enable state and local
governments, or private organizations to successfully procure
loans for rail-trail projects that private lending institutions
might otherwise consider to be high risks.
Mr. Chairman, the President's Commission on Americans
Outdoors has ignited our imaginations with its vision of
greenways that would provide "Americans with access to open
spaces and wildlands for the widest possible variety of outdoor
activities, close to home." Enactment of S. 1544 will help
turn this vision into a reality and, at the same time, preserve
America's unique network of rail corrdiors for future
generations.
145
GREATER BETHESDA-CHEVY CHASE COALITION
4310 Kentbuiy Drive Teatimony
Bethesda, Maryland 20814
301-656-7946
For the Public Lands, national Parks and Forests Sub-
Aiiied Civic Group Committee of the Senate Energy and Natural Resources
Committee
Subject: S. 1514, Trails Systems Improvement Act
Cabin John Citizens
Association
Town of Chevy Chase
Chevy Chase Hills Citizens
Association ,
My name is Anthony F. Czajkohski. I live in
Chevy Chase Valley Citizens bethesda, Maryland. I am writing to you as chair of
Associabon
the Greater Be thesd a-Chev y Chase Coalition, composed of
Citizen coordiiating g ^itizen association in Montgomery County in the
Committee of Fnendship " o j j
Heights state of Maryland.
Oxjuelin Run Citizens
Association My coalitioh supports S. i;>UU.
East Bethesda Citizens
Association In the past two years our community has been in-
Eimoakt^dge-Lynn Citizens volved in an issue closciy associated with the National
Association Trails System Act of 1933. In April, 1986, the CSX
Fnendship Heights Village Corporation applied to the Interstate Commerce Commis-
sion to abandon the Georgetown Subdivision of the b i C
Hamlet Citizens Assoc^on Railroad Company. This is a branch line running from
Hamlet House Condominium Silver Spring, Maryland, through lower Montgomery Coun-
Hamiet Place Owners. Inc. ty to the C 4 0 National historical Fark and then uown-
Kenwood Citizens Association Stream along the canal to Georgetown, D.C. At the time
of the filing, the Real Estate Division of CSX ap-
praised the liquidation value ol the entire line at
$19,531,000 ($6,t75,0O0 in r.ontgomery County and
$12,65 9,00 0 in the District of Columbia).
Kenwood Condominium
Kenwood Forest Condominium
Association 11
Kenwood House
Riviera Condominium
Association
Town of Somerset
Village of Martins Additions Various groups indicated interest in acquiring the
Park-Sutton condommium right-of-way after abandonment. The National Park Ser-
Association vice, Supported by numerous civic, environmental, and
Residents against Transitway recreational groups, was interested in converting the
right-of-way into a hiker-biker recreational trail,
Montgomery County proposed a light rail rapid transit
""I'!"!!'.'!"!.'^'"^"'' to connect the two Metrorail stations oetween bethesda
and Silver Spring. To establish eligibility under the
National Trails System Act, the county proposed a
Springfield Civic Association hiker-biker trail alongside ti\eir proposed light rail
Sumner Citizens Association transit. Cur Coalitioh has Worked to convert the
westbard Mews Condominium right-of-way for park and trail use exclusively.
Westmoreland Cituens Association Preliminary negotiations between Montgomery Count>
WestwoodMews ghd CSX indicated a CSX asking price vastly in excess
of the 1986 appraisal. The Greater Lethesd a-Cne v y
Chase Coalition wrote to the ICC on November 9, 19(i7,
requesting that its decision on abandonment instruct
CSX to dispose of the right-of-way for public use only.
We also requested that the ICC set reaSonaDle terms for
United To Conserve The B &0 Right-of-Way As Green Space
146
Greater Bethesda-Che v y Chase Coalition
the sale. We noted, findlly, that the use of the hOW for iiicSS
transit was inconsistent with the National Trails tystem Act,
even with an adjoining hiker-biker trail.
The exorbitant purchase price askeu by CSX is i ii f 1 uenc ina
public policy in the county. Advocates of mass transit say tnat
only transit could justify the enormous expenditures for land ac-
quisition. The State of Maryland Department of Transportation
recently offered $13 million to acquire the right-of-way. If
this occurs, the possibility of an exclusive park and trail use
would be eliminated.
The acquisition of the greenway as a park would be, as V.il-
liaa Penn Kott, Jr., Director of the National fark Service, stat-
ed, "a once- in-a-lif etime opportunity." It would tatablish a kO
mile linear park from Georgetown to Pock Creek Park, in an area
desperately in need of more greenspace. This is exactly the sort
of recreational area envisioned last year by the President's Cora-
mission on the Outdoors. Lower Montgomery County which has IjJ
of the county population, has only 54 of the county p^rKland.
S. 15')'4, by niaking federal loans available from a revolving
fund, could assist in the conversion of this valuable land to
trail use .
Based on our two year experience, the Greater be the sd a-Ciie v y
Chase Coalition recommends that you go one step further in I,
1511. We believe that public or private groups seeking to con-
vert an abandoned rail line to recreational trails should be
treated in the same way that the ICC treats a private buyer wish-
ing to continue the right of way for transportation use. private
buyers under U.S.C. 10905 can have the ICC establish ail disputed
conditions of sale and can have the ICC set a price at the ap-
praised value. Conversion for trail use should have the same op-
tion.
Financial loans from a revolving fund will enable public bo-
dies to accommodate purchases within normal budget cycles. Pro-
vision for sale at a reasonable price will assist in conserving
green space and in protecting taxpayers from paying exorbitant
purchase prices for the enjoyment ol simple recreation.
147
MationaL ,
^ ~ /\rcbives
m^
WcishinfJton, DC 20408
7 'QT
Honorable Dale Bumpers
Chairman, Subcommittee on Public Lands,
National Parks and Forests
Committee on Eneryy ana Natural Resources
United States Senate
Washington, DC 20510
Dear Senator Bumpers:
we greatly appreciate the opportunity to submit a statement
for the official record that explains the National Archives'
concerns about issues raised during hearings held on
March 3, 1988, by your subcommittee on H.R. 2652. The
primary purpose of H.R. 2652 is to revise the boundaries of
the Salem Maritime National Historical Site in the
Commonwealth of Massachusetts to obtain St. Joseph's Polish
Roman Catholic Society building to be used by the Park
Service in connection v/ith the Site. The National Archives
nas no objection to the expansion of the Salem Historical
Site. We have a natural affinity for the marvelous
historical programs run by the Park Service and we count
ourselves as one of their many supporters. However, during
testimony at hearings held last September in the House of
Representatives before the Subcommittee on National Parks
and Public Lands and echoed in Senator John Kerry's
statement introduced for the record at the hearing held by
your subcommittee on March 3, 1988, issues were raised
concerning the anticipated use of the St. Joseph's Society
building which concern us greatly.
In the hearings held in both thd House of Representatives
and the U.S. Senate on H.R. 2652, the St. Josepn's Society
building was described by witnesses as the place that would
be used by the Park Service to store and display records
from the U.S. Customs Service dating back to the early
1800's. According to testimony, the records were to include
not only those reflecting activities at the Salem
Customhouse, but also records from five northern
Massachusetts ports. These records are currently stored at
the Essex Institute, a private institution in Salem,
Massachusetts. The National Archives has been making
preparations to take these Federal records into our custody
and to make them available for research at our Boston
Archives Branch. We very much oppose a proposal that would
transfer these Customs Service records to the ParK Service's
custody at the Salem Historical Site.
National Archives and Records Administration
148
I believe that some historical background detailing how
these records came to be located in the Essex Institute may
be helpful in clarifying some of our concerns. In 1922,
Senator Henry Cabot Lodge of Massachusetts suggested that
Federal records of five Massachusetts customhouses (Salem,
Beverly, Gloucester, Newburyport, Ipswich, and Marblehead)
be transferred from the Treasury Department to the Essex
Institute in Salem, Massachusetts. The recommendation for
transfer was repeated in 1931. In both 1922 and 1931, the
recommendation was referred to the Librarian of Congress
who was authorized under Executive Order 1499 to provide
executive departments with the "benefit of his views as to
the wisdom of preserving such of the papers as he may deem
to be of historical interest." The Librarian of Congress
approved the proposal in 1922 and 1931 on two conditions:
(1) that the Government retain ownership or title to the
records; and (2) that the Essex Institute should return the
records when a "Hall of Archives" was prepared to receive
them. In 1931, 3 years before the establishment of the
National Archives, the Department of the Treasury finally
agreed to the proposal and transferred the customhouse
records to the Essex Institute under the conditions
specified by the Librarian of Congress. It is clear,
therefore, that the Treasury Department did not relinquish
title to the records and that depositing the records at the
Essex Institute was intended as a temporary measure and
anticipated that the eventual permanent repository would be
the National Archives.
In 1936, Congress enacted Public Law No. 620 which
authorized transfer of the Salem customhouse property from
the Department of the Treasury to the Department of the
Interior as an historic site. This statute, and the
legislative history, indicate an intent to preserve the
building and grounds as an historic landmark. Both the
House and Senate reports include a description of the site
as well as the proposed plans for the facility. Nowhere in
the legislative history is there any indication of an intent
for the Customs Service to relinquish any records to the
Department of the Interior. On the contrary, the statute
expressly provides that the Customs Service was to continue
operations on the site. Moreover, the records at issue were
no longer in the custody of the Customs Service in 1936
since these historical records had been transferred to the
Essex Institute 5 years previously. Therefore, we conclude
that the statute which created the Salem historical site did
not include the transfer of any customhouse records to the
Department of the Interior. Indeed the customhouse records
have remained in the physical custody of the Essex Institute
since 1931 under the conditions originally specified by the
Librarian of Congress.
149
In February 1986, the Branch Chief of the National Archives'
Boston Branch visited the Essex Institute to examine the
customhouse records and determine how the records were being
stored and preserved. Based on this inspection and reports
from others, it appeared that the condition of many of the
records was deteriorating. Because of our concern for the
records, the National Archives determined that the records
should be moved from the Essex Institute to our Boston
Branch where appropriate conservation measures could be
initiated. Archival staff were also anxious to begin
preparing inventories and finding aids to make the records
more accessible to the public. Transferring these records
to the National Archives' custody would help complete the
historical documentation of New England's maritime commerce
since the Archives already holds the records of 23 other New
England customs districts, including some records from the
Salem, Gloucester, and Marblehead customhouses.
Additionally, because of litigation arising from Customs
Service activities. Federal District court records in the
National Archives' custody complement the customhouse
records stored at the Essex Institute. Consolidation of all
of this documentation at the National Archives' Boston
Branch would enhance the research value of all of the parts
and thus promote knowledge of New England's rich maritime
history.
With these goals in mind, the Archivist of the United States
in June 1986 disapproved a request from the Park Service
that the records stored at the Essex Institute be
transferred to the official custody of the Park Service.
The Archivist instead asked for the Park Service's support
in transferring the records to the National Archives.
Failing any response to that proposal, the National Archives
in June 1987 met with officials of the Customs Service and
in November of that year officials of both agencies signed
legal transfer documents (SF 258) which transferred legal
title to the records from the Customs Service to the
National Archives.
Transferring title to the customho\ase records to the
National Archives does not mean that the Park Service may
not have any future use of these records. On the contrary
once the records are physically transferred to our custody
we can begin to preserve the records and ensure their
continued existence so that they will be there when the Park
Service and the American public want to use them. We are
anxious to meet the Park Service's needs at the Salem
historical site. The National Archives can provide
microfilm copies of the customhouse records, loan
significant customhouse records for exhibit at the site, or
150
provide facsimilies of records for exhibit. We want very
much to accommodate the Park Service's legitimate needs
while at the same time ensuring that the original records
are preserved for posterity as was intended by Congress when
they established the National Archives in 1934.
We think it is vitally important to recall just what role in
the Government's recordkeeping process the Congress intended
the National Archives to fulfill. The legislation that
established the National Archives in 1934 was the result of
a long campaign led by historians, social scientists,
journalists, and other observers of the national scene who
were seriously concerned about the deteriorating condition
and often the irretrievable loss of many of the historical
records documenting our national life and culture. The
United States was, in fact, the last of the great industrial
nations of the world to establish a national archival
institution to ensure the preservation of the nation's
historical records. The legislative foundation established
by the Congress for the National Archives is based firmly
upon the idea that there needs to be a single, central
archival system to ensure that historically valuable records
are identified, properly stored and cared for, described in
a manner aimed at promoting their use, and freely made
available to all those who wish to study and write about our
history. Without a central archival system some or all of
these essential tasks fail to be carried out or are given
short shrift. Such was the pattern of archival failure in
the United States prior to 1934. Even today there exist
some State and local jurisdictions in which responsiblity
for archival records has been left to operating, program-
oriented governmnent agencies whose failure to adequately
care for those archival records continues to illustrate the
necessity for a single agency specifically charged with
responsibility for the preservation of all historically
valuable records.
A central archival system does not rule out or even diminish
the opportunity for other agencies engaged in historical,
museum, or educational programs (such as the Park Service)
to use the records maintained by the central respository to
support and enrich their own programs. Facsimiles or, under
appropriate conditions, original records can be loaned for
exhibit purposes. Microfilm copies of records and
publications based on the records can be made available upon
request. However, only with the continued assurance that all
records determined to be permanently valuable will be
available from the National Archives can competing uses of
the records be balanced. While we are strongly supportive
of the National Park Service's mandate to preserve and
explain to the public the significance of historical sites,
we adamantly believe that the Service's needs can be
151
accommodated without jeopardizing the system that ensures
the continued existence of Federal records for use by
private historians and researchers, other Government
institutions, or any citizen who wishes to discover more
about the operations of the United States Government.
If the Congress were to agree to the transfer of the
customhouse records sought by the Park Service for the Salem
historical site, a precedent could be established which if
followed by the Park Service for other historical sites and
by other agencies for their own or related records could
ultimately eviscerate this nation's archival program. We
ask, therefore, that the Congress seriously consider whether
the Park Service's desire to have custody of the Salem
customhouse records is sufficient cause to endanger this
country's hard-won central archival system. We believe it
is not.
Thank you for allowing us to express the views of the
National Archives and to have those views included in the
official Congressional record concerning the Park Service's
Salem historical site. If any further hearings are held, we
would welcome the opportunity to appear in person to present
our position.
Sincerely,
DON W. WILSON
Archivist of the United States
Enclosures
152
^^^^ United States Department of the Interior *
\\agyy NATIONAL PARK SERVICE
^^^S^ P.aBOX J7I27
WASHINGTON. DC 200137127
IN ■iriY niria to:
H30(418)
.AN 2 2 ,9Sc
Mr. Wllllaa von Raab
Cooalasloner of Customs
rj.S. Customs Service
1301 Constitution Avenue, NW
Washington, DC 20229
Dear Mr. Rasb:
Since 1938 the Nstlonsl Park Service has administered Salem Maritime National
Historic Site, nine acres containing historic wharves, residences, and govern-
ment buildings In Salem, Massachusetts. A prominent feature of this site
Is Salem's 1819 Custom House.
When the Custom House was Cransf erred to the National Park Service, a
historically valuable collection of customs records accompanied It. These
records remain at the site and at the Essex Institute In Salem, which holds
other customs records reflecting Salem's leading role In maritime co^erce.
Because the records are In a poor state of organization and preservation, we
and the Essex Institute are working to obtain financial support for their
professional care. To accomplish this, the question of ownership must first
be resolved: there is no evidence that the Customs Service ever formally
transferred custody of its records when it relinquished them physically.
We would appreciate receiving a statement from the Customs Service giving the
National Park Service official custody of the historic records from the U.S.
Custom House at Salem.
If further Information is needed, please write Superintendent Cynthia Pollack
at the address below or telephone (617)744-4323.
Sincerely,
153
TBK coypggaioxEi* of ciraxoMS
March 20, ig'^e
wAaai^fOTON. D.c.
Dear Mr. Al
On January 22, 1986, you wrote to my office requesting a
statement from the Customs Service giving the National Park
Service official custody of the historic records from the U.S.
Customhouse at Salem. I did not answer immediately because I
wanted to have a representative from our office meet with your
people at Salem regarding this matter.
This meeting took place on February 18, 1986 in Salem,
Massachusetts. It is our understanding that:
a. There are 500 line
b. These documents ar
Institute in Salem
c. The National Park
inventory, prepare
by scholars and re
d. The collection wou
Officials at any t
to the Commissione
e. The collection, du
remain physically
material is availa
f. When the Salem Mar
Salem Customhouse
then housed there.
ar feet of documents;
e now physically housed at the Essex
Service will provide the resources to
and preserve these documents for use
searchers ;
Id be available to Customs Service
ime and items will be made available
r of Customs upon request;
ring and after the inventory, will
at the Essex Institute so that the
ble now for research; and,
itime Museu^n in the reconstructed
is completed the collection will be
space permitting.
Based on the above facts, I agree that the collection should
be transferred to the custody of the National Park Service,
pending the subsequent approval by the National Archives, which
has legal responsibility for all Federal records per regulations
issued under 44 U.S.C. 2908. Under these regulations, your
Agency will have to get formal approval from the National
Archives for Customs to officially transfer the collection to
your caretaker ship.
I was pleased to hear that the restoration of the historic
Customhouse will be completed by mid-year 1988 and look forward
to visiting the historic Customhouse. It is most appropriate
that these matters, which I understand have not been fully
resolved since 1922, be settled so that our Bicentennial in 1989
can be celebrated for the event it is.
154
I appreciate the opportunity to have reviewed this matter
and the •fforts which your Agency have expended. The restoration
of tbft MiOT Customhouse as a National Historic site is a fitting
tribut* t)0 the men and women who have served the Government since
1789.
Please keep me informed of the decision by the National
Archives. If I can be of any further service, I am always
available for matters that affect Customs history.
Yours faithfully,
/(J^
.^(U-
155
United States Department of the Interior
NATIONAL PARK SERVICE Nat.onal'^Park Serv.ce
P.O.BOX 37127 Reminds Yqa
WASHINGTON. DC. 20013-7127
IN RCPLV Btrta TO
APR 81986
H30(418)
Mr. Frank Burke ,^^ ^^^
Acting Archivist of the United States t»^e pride n 'meRiCa
National Archives and
Records Administration
Washington, DC 20408
Dear Mr. Burke:
Since 1938 the National Park Service has administered Salen Maritime National
Historic Site, nine acres containing historic wharves, residences, and govern-
ment buildings in Salem, Massachusetts. A prcminent feature of this site is
Salem's 1819 Custon House.
When we acquired the Custon House, a historically valuable collection of custons
records acccmpanied it. Other early customs records pertaining to Salem remained
with the U.S. Xistons Service. These records, occupying 500 linear feet, are
housed at the Essex institute in Salem, where some of the records obtained by
the Park Service are also kept. Because the records are in a poor state of
organization and preservation, we and the Elssex Institute are working to obtain
financial support for their professional care. This can better be obtained if
the records are all placed under our official custody. The enclosed letter
fron Comissioner of Custons William von Raab indicates his willingness to
transfer the Customs Service records to the Park Service.
We now request National Archives approval for the transfer. If further
infomiation is needed, please contact Superintendent Cynthia Pollack of Salem
Maritixne National Historic Site, 174 Derby Street, Salem, Massachusetts 01970;
telephone (617)744-4323. ♦
Sincerely,
Mon. Jr.
Director
Enclosure
156
J UN 2 13S6
Mr. William Penn Mott, Jr.
Director
National Park Service
PO Box 37127
Washington, DC 20013-7127
Dear Mr. Mott:
We were most interested in your letter of April 8, 1986,
requesting approval to transfer to the National Park
Service records of customs houses currently housed at th«r
Essex Institute in Salem, Massachusetts. For the reasons
given below, the National Archives cannot approve your
request, but instead suggests transfer of the records to thm
National Archives .
The bulk of the records of the Salem, Gloucester, Newburyport
and Marblehead cust~ms houses in Essex County were deposited
with the Essex Inst.tute in 1931 and 1932. The arrangement
for their storage called for their transfer to the National
Archives when the construction of that building was complet-
ed. It would be most appropriate for these records to be
united with related records of Massachusetts customs houses
that are part of the Archives of the United States.
Your letter states that the records "are in a poor state of
organization and preservation.* The National Archives has
both the professional staff and conservation facilities to
ensure that the records are appropriately arranged and pre-
served. We also have the legal responsibility and personal
commitment for ensuring that historical Federal records, one
of oor os^on'ft primary cultural resources, will be available
for uM of futur* generations of Americans.
We ayr«tt tlMt tb«s« customs records are primarily of regional
interest. If they were transferred to our custody, they
would be maintained at the National Archives-Boston Branch.
This would facilitate their use by the public and by Federal
agencies such as the National Park Service and the Customs
Service. In addition, after processing the files, we would
be willing to loan specific documents under appropriate terms
of agreement.
We would appreciate your support in transferring the customs
records at the Essex Institute to the National Archives. If
you or your staff have any questions about the matter, please
157
coidM^ iMitfOt IT, Rossoan, Director, Records Appraisal and
DigpOKtttn •Ivlilon, on 724-1457.
Sincerely,
FRANK G. B'J^-'l
FRANK G. BURKE
Acting Archivist
of the United States
158
MAY i 1 1987-
Mr. William Penn Mott, Jr.
Director, National Park Service
P.O. Box 37127
Washington, DC 20013-7127
Dear Mr. Mott:
A year ago the National Park Service asked the National Archives
and Records Administration to approve the transfer to NPS of
legal custody of customs records housed at the Essex Institute
at Salem, Massachusetts. Since we cannot approve your request,
I asked instead for your agency's support in transferring these
customs records to the National Archives.
The National Archives is, by law, the official repository for
the archivally valuable records of the Federal government. I
would appreciate, therefore, your letting me know as soon as
possible when these archivally valuable records will be
transferred into the custody of the National Archives - Boston
Branch.
Sincerely,
FRANK G. BURKE
Acting Archivist
of the United States
BOSTON PUBLIC LIBRARY
3 9999 05995 538 3
May 18, 1987
Mr. William von Raab
Commissioner of Customs
U.S. Customs Service
1301 Constitution Ave.^NW
Washington, DC 20229
Dear Mr. von Raab:
As you may recall, the National Park Service (NPS) in 1986 asked
the National Archives and Records Administration (NARA) to
authorize transfer to NPS custody of Bureau of Customs records
housed at the Essex Institute in Salem, Massachusetts. Va were
unable to approve this request, believing it more appropriate
for these Federal records to be united with related records 'of
Massachusetts custom#houses that are part of the National ;
Archives of the United States . Enclosed for your information |a-
a copy of our letter advising NPS of this decision. • ".
The Salem, Gloucester, Newburyport, and Marblehead custou^hquve
records were deposited with the Essex Institute in 1931 and T933-
before the establishment of the National Archives. The arrange-
ment for their storage with the Institute called for their
transfer to the National Archives whenever "the Government may
desire to remove all or any portions of them to its own
archives." We believe that these customs records should now be
transferred into the custody of the National Archives - Boston
Branch. Transfer of the records at this time is vital because
It will enable us to take steps to conserve the records, which
we understand to be in a poor state of organization and
preservation.
I have written the Director of the National Park Service to
request his cooperation in the transfer of the records (copy
enclosed) . We would like to meet with the appropriate officials
at tha CuatOBB Setvice to discuss the return of these records.
Please hava soaeone on your staff contact Kenneth F. Rossman,
Director,. IbeAords Appraisal and Disposition Division, on 724-
1457- to ^Bt ^fr such a meeting. Thank you for your cooperation
in this matter.
Sincerely,
FRANK G. BURKE
Acting Archivist
of the United States
o
85-A6A (164)
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