STATEMENT BY KATHERINE STEVENSON, ASSOCIATE DIRECTOR, CULTURAL RESOURCES STEWARDSHIP AND PARTNERSHIPS, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS OF THE COMMITTEE ON RESOURCES CONCERNING H.R. 4086, TO AMEND THE NATIONAL TRAILS SYSTEM ACT TO REQUIRE THAT PROPERTY OWNERS BE COMPENSATED WHEN CERTAIN RAILBANKED TRAILS ARE DEVELOPED FOR PURPOSES OF PUBLIC USE.

May 9, 2000


Mr. Chairman, thank you for the opportunity to appear before your committee to present the Departmentís views on H.R. 4086, a bill proposing compensation to property owners for public use of railbanked trails.

The Department strongly opposes H.R. 4086. The bill is ambiguously worded and thus it is not clear what the drafters intend. The judicial system already provides, pursuant to the Fifth Amendment of the U.S. Constitution, for "just compensation" when property interests are taken. If and to the extent that this measure is intended to provide compensation beyond that constitutional standard, the Administration is on record uniformly and consistently as opposing any such efforts. In addition, the bill could require creation of an additional administrative process, has the potential to place difficult obligations on state, local and non-profit trail managers, and could hinder the interim use of rail corridors for trails. Finally, the bill is certain to create litigation as to the meaning of its terms.

In 1983, Congress recognized the continuing need to preserve linear transportation corridors and the demand for trails by amending the National Trails System Act (NTSA) to include a "railbanking" clause. Railbanking is defined as a voluntary agreement reached between a railroad and a trail manager to dedicate a deactivated trail corridor to interim trail use. In Section 8(d) of the NTSA, the Secretary of the Interior is asked to encourage state and local groups to develop trails on abandoned railroad rights-of-way in order to protect and keep these corridors intact in case they are needed for rail service in the future. Section 8(d) of the NTSA facilitates the development of rail-trail corridors that provide both high-quality recreational opportunities and serve transportation needs.

First, the bill could be read to create a compensation remedy above and beyond that which already exists under the Fifth Amendment to the U.S. Constitution. The billís language, which requires "fair and reasonable compensation," could be construed as requiring payment in an amount other than the already constitutionally compelled "just compensation" provided for in the Constitution. It has already been made clear in the Federal Circuitís decision in Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996), that a property owner has a right to just compensation for property which has been taken by the conversion of a railroad right-of-way to a trail. This constitutional remedy is available in either the United States District Court or the United States Court of Federal Claims, depending on the amount of compensation being sought by the landowner. Because the property involved is often just a narrow strip, the amount of compensation sought frequently brings the case within the jurisdiction of the United States District Courts, which are located through the country. In addition, the law already provides for the payment of reasonable attorneys' fees and litigation costs as part of the "just compensation" due a property owner whose land has been taken.

H.R. 4086 is silent on what administrative mechanism would be utilized to recognize the rights it seeks to compensate. The bill could be read to require creation of an administrative process in order to dispense the compensation provided for under the bill. A property owner who did not believe that this process provided adequate compensation would nonetheless be required to exhaust this administrative process before he could sue for the constitutionally mandated just compensation. As such, it would be a remedy inferior to that presently available to the property owner ó the ability to sue in court to recover just compensation without the need for any prior administrative determination. Nor is any source of funding for this administrative compensation program identified.

H.R. 4086 is also ambiguously worded. It ignores the fact that some railroads own the land underlying their rights-of-way in fee simple, and thus nothing has been taken from adjacent property owners. Even where the property interest possessed by the railroad is an easement, a determination as to whether a property owner is entitled to compensation depends on whether, under State law, railbanking constitutes a use consistent with the original easementís purpose such that it prevents the abandonment of the easement. The legislation ignores this determination, which has repeatedly been found by the courts to be essential. Thus, the bill presupposes that a property interest has been taken from the property owner without reference to what rights are actually possessed by a particular property owner. This could result in individuals erroneously receiving compensation for property interests which they do not own, but are instead held, pursuant to State property law, by others. Because of this ambiguity in H.R. 4086, enactment of this legislation could impede the preservation of these corridors for future transportation needs, as well as hinder the beneficial interim use of these corridors for trails.

In addition, fragmentation of these rail corridors could result. This would deprive communities throughout the United States of recreational opportunities, energy-efficient transportation opportunities, and potential economic benefits. Rail-trail corridors provide high-quality recreation opportunities for rural, suburban and urban inhabitants alike. They also provide open space for a long list of activities, such as cycling, walking, horseback riding, in-line skating, cross-country skiing and wheelchair recreation. In urban areas, these trails often provide a safe, enjoyable place for children and families to recreate. The width of the corridors naturally provides for access for people with disabilities in these public spaces.

These corridors provide another benefit by serving as transportation corridors. In cities, the areas provide safe and easily accessible commuting areas for bikers and walkers, helping to mitigate our urban traffic problems and pollution. The Capital Crescent Trail and the C&O Canal are local examples of these rail-trails. The conversion of rail-trail corridors has the additional benefit of attracting tourism dollars to communities that have lost income generation through the disuse of the railroad. Rail-trails attract people to these areas, people who spend money on recreational equipment, food, and lodging as they travel on these trails.

Mr. Chairman, this concludes my prepared remarks. I would be happy to answer any questions you may have.