Segment 2 Of 2     Previous Hearing Segment(1)

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OVERSIGHT HEARING ON THE RAILS TO TRAILS ACT

PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.

WEDNESDAY, SEPTEMBER 18, 1996

U.S. House of Representatives,

Subcommittee on Railroads,

Committee on Transportation and Infrastructure,

Washington, DC.

    The subcommittee met, pursuant to notice, at 2:06 p.m. in room 2167, Rayburn House Office Building, Hon. Spencer Bachus (acting chairman of the subcommittee) presiding.

    Mr. BACHUS. Good afternoon.

    I'd like to welcome you to a meeting of the Rail Subcommittee of the Transportation Committee.
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    I am Congressman Spencer Bachus, and I'm pleased to preside over this meeting at the request of Chairman Molinari.

    Today we will be continuing our oversight of the Rails to Trails Act, which began with our first hearing earlier this summer.

    The first hearing, on July 10th, focused on how the Surface Transportation Board and the Federal Highway Administration administer Federal transportation laws and related programs promoting the conversion of abandoned rail lines to recreational trails.

    The second hearing, the one today, which is one in a series of hearings—there will be future hearings—is intended to provide the subcommittee with an overview of the process by which abandoned rail corridors are converted into recreational trails and then reconverted into rail service under the rail banking statutes.

    I'm sure that we will be hearing testimony from witnesses with a wide range of views on the positive and the negative aspects of the Trails Act. For my own part, I'm especially interested in finding out how the problems and shortcomings that may exist now can be cured in the future.

    So so-called rails-to-trails laws have generated considerable controversy among affected landowners, who contend that the statutes condone the taking of private property without compensation.

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    This hearing will examine the conversation of rail right-of-ways to recreation trails and the impacts on adjacent landowners.

    The hearing will also consider whether railroad lines converted to recreational trails are actually being re-converted or are capable of being re-converted to rail service. This is a real concern of several members of the committee, including myself, and let me explain what I mean by this.

    The stated goal of Congress in enacting the Trails Act was to preserve abandoned rail corridors for future rail use. Such reconversion after rail banking the right-of-ways was stated as the fundamental purpose of the Rails to Trails Act; yet, based on what we heard at our first hearing from the Surface Transportation Board and the Federal Highway Administration, it appears that there have been virtually no reconversions of trails to active rail use since the Trails Act was enacted.

    We also learned from the Surface Transportation Board that our current Federal laws give no advantage whatsoever to an applicant who wants to reinstate rail service on a rail-banked corridor. He is treated by the STB's laws the same as someone who is constructing a new rail line from scratch.

    Aside from the wording of the laws, themselves, we also have to ask: does the Trails Act provide a realistic perspective for the reconversion of interim trails to rails use as the statute intended, or does the political phenomena of ''not in my back yard'' effectively preclude restarting rail service on a line that has become a trail?

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    To me this issue of reuse of rail-banked corridors is a fundamental question that apparently the Congress has never really explored until now.

    To put it in terms that would be familiar to the Banking Committee, where I also serve: is rail banking really a procedure that is all deposits and no withdraws? And, if it is, how can we correct this?

    At this time, at the chairman's request, we make two additional statements for the record.

    First of all, I would like to submit for the record a July, 1996, GAO report concerning the transportation enhancement program, which has been a major source of funding for rails to trails. In addition, the Subcommittee on Railroads has received many letters from individuals describing both positive and negative aspects of the rails to trails program.

    Due to time constraints, we are forced to limit the witnesses who could appear before this subcommittee today. However, to give others the chance to have their views heard, I would like to submit this correspondence for the record, as well.

    [Mr. Bachus statement and the GAO report and correspondence follows:]

    [Insert here.]

    Mr. BACHUS. I would also like to point out that at the last hearing on the Trails Act, which took place on July 10th, Chairman Molinari requested that the Department of Transportation respond for the record concerning a letter that Secretary Pena had written to Governor Voinovich. The letter appears to indicate that the Department of Transportation would demand that trail operators refund previously-used Federal dollars if a corridor is returned to rail service.
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    This is a critical issue, since such a policy would seem to subvert the entire purpose of rail banking; that is, preserving corridors for future rail service.

    We are still waiting to hear from the Department on this important matter and urge a timely response to this request.

    Chairman Molinari has also asked me to express her chagrin and serious concern that several of today's witnesses did not provide their written testimony until just a few hours before this hearing. Our rules require that statements be filed at least 48 hours in advance. It is not at all fair to the Members and the staff to turn in late testimony. This inhibits proper preparation for the hearing and is also unfair to the other witnesses who file on time.

    It is particularly inexcusable for organizations such as the Trails Conservancy to be late, because they do not have the handicaps that individuals do in providing materials to the subcommittee. This is an episode which the chairman of the subcommittee wants to stress had best not be repeated by any witnesses in the future.

    With that, I'll ask Mr. Oberstar if he has some opening remarks, and then we'll introduce the first panel.

    Mr. OBERSTAR. Thank you, Mr. Chairman.

    I'm very pleased that we have continued this hearing on the rails to trails issue and on the matter of rail banking.
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    At the occasion of our last hearing on this subject, I was dismayed that the National Park Service was not included in our witness list and received a commitment that the hearing would be continued and that the Park Service would be invited, and I appreciate that courtesy being extended under the rules of our committee.

    And I might also say, Mr. Chairman, that I concur generally in the committee rules about having testimony prepared and submitted three days in advance of our hearings, but that also imposes an obligation on the committee to give ample notice to witnesses, and in some cases witnesses were not given substantial advance notice to prepare their testimony.

    In addition to the Park Service today, we're going to be hearing from people all across the country who will talk to us about their experience with the rails to trails program and how it has worked from the citizens' and the participants' perspective.

    For example, we will hear from the mayor of Columbia, Missouri, who was instrumental of rail banking of the 200-mile Katy Trail in Missouri. We will hear from a trail manager from Pennsylvania and a Recreation Department director from the State of Washington.

    We are also going to hear from opponents of rail banking: landowners in New York and Missouri and lawyers in Washington State and Washington, D.C., who have a differing view on this subject.

    We're going to hear from the short line and commuter rail folks, who will talk about the prospects for converting rights-of-way back to the working railroads.
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    I just want to quote from Mr. Loftus' statement, president of the American Short Line Railroad Association, that ''the purpose of the National Trail Act in 1983 is to 'preserve rail corridors that are about to be abandoned by converting them temporarily to recreational trail use.'''

    The underlying purpose of that legislation was—during the time when a railroad grade bed is not being used for rail purposes, it can be used for some other purpose, and in doing so preserves that railroad grade bed in good shape for some future time when it may be needed again for rail purposes.

    And I think the advocates of rails to trails are fully cognizant of that requirement and are in agreement with it.

    But a key concern of the committee is, as you've said, Mr. Chairman, preserving that interest of maintaining rights-of-way for possible rail transportation use at a future time.

    We all know how difficult it was, in the days when railroad grade beds were constructed in the mid 19th century, to build, to develop—enormous amount of labor that went into construction of those facilities, how difficult it is to maintain them, and in today's environment how difficult it would be to acquire rights-of-way. We know that from the surface transportation program building highways and bridges, how incredibly costly is right-of-way acquisition.

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    So maintaining these rights-of-way is an extremely important issue. Breaking them up would make it virtually impossible to reassemble—a bit like trying to reassemble Humpty Dumpty.

    The Stampede Pass Route was one of those that was not rail banked, and it's going to be an interesting expedition for us this afternoon to find out what problems have occurred in trying to reassemble a route that was not rail banked.

    Another question that we will explore—and certainly I will explore in the course of this afternoon—is: what interim use should be made of a right-of-way during the period of time when it is rail banked? Should the use be reserved for adjacent landowners or owners of reversionary property rights, as some advocate? Or should the right-of-way be used for an alternative transportation use?

    My personal preference is that it be used for an alternative transportation use such as bicycling or pedestrian walkways, as a means of getting commuters off our crowded highways on to bicycles or other non-motorized means of transportation.

    I'm an avid cyclist, I admit from the outset. I have used the Washington and Old Dominion Railroad Grade Bed Trail in the Washington area. I would be happier with it if it weren't so broken up by streets and sidewalks and crossings, but I've biked it all the way out to Purcellville, and I see the thousands of people who are out there, either walking, jogging, roller blading, or bicycling, and what wonderful benefits there are from that facility.

    In my District the former Sioux Line railroad grade bed that runs through three counties is being converted to a bicycle and pedestrian trail, and next year, next spring when that's completed, I hope to bike that all the way from the southern end of my District all the way up to Duluth, and that's about 150-some miles.
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    I'm personally an advocate. I think, from a policy standpoint, what we have done in the rails to trails program is good policy and it has great public benefits.

    Thank you very much for reconvening this hearing on this subject. I look forward to the witness testimony.

    Mr. BACHUS. Thank you, Mr. Oberstar.

    The gentlelady from New York, Mrs. Kelly.

    Mrs. KELLY. Thank you, Mr. Chairman. I want to thank you and Chairman Molinari for calling a second hearing today on the important rails to trails program.

    Today's hearing is important because we will be presented with testimony from supporters of the program, as well as witnesses concerned with private property rights. I recognize the program has not been without controversy and we need to pay attention to the concerns of property owners. But as we do so, let's not lose sight of the importance of the program both in terms of preserving rail corridors for future use, as well as an important tool to boost tourism and economic development.

    If there is any doubt about the second point, then let me draw your attention to an article which appeared yesterday in the ''Poughkeepsie Journal'' in my area which is entitled, ''Rail Trail Gets Debut Saturday.'' This is the opening of a new rail trail in Amenia, New York, in my District. This is the second rail trail section that we have now. We have one now that runs from Putnam County through West Chester right down touching almost to the New York City line. It's an almost 50-mile run on an old rail division.
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    One of the reasons I feel so strongly about preserving the rails to trails—turning the rails into trails in my area, preserving those rail beds, is that close to New York City—to the cities, in general, in this Nation—we may need at some point, because of the press of our population, to re-institute the old inter-urban type systems that we used to have, and this would be the place that would be most likely to do this.

    That being said, I do know that we must need to preserve property—have a good look at property rights.

    This first phase of this Harlem Valley Rail Trail opens this Saturday, and people are really excited about the increase of tourism in Duchess County that they foresee it bringing in the needed revenue for, because this has been an area of the county that has been hit hard by the close-down of IBM.

    The area where we do have an active trail—Mr. Oberstar, my trail is doing the same thing as yours has done. We have children learning to roller skate. We have families out bicycling. It has been a huge success in terms of both economic and tourism, right straight down through that whole section—which, again, had been having a certain lack of economic stability.

    But I think we need to accommodate the concerns of the land owners, and I look forward to the testimony of the property rights advocates that are here today. Let's not lose sight of the enormous benefits, however, of rail banking and rail trails.

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    Thank you, Mr. Chairman, again.

    Mr. BACHUS. Thank you.

    We will be hearing from—our second panel will be property owners. Our third panel will be trail advocates. And we will obviously get two different views, two competing views.

    We, as a committee, are also aware of the Vermont legislation, the Preseault decision, and that perhaps at some point, if there's a meeting of the minds, it will be maybe that there needs to be some compensation for property owners and that this may somehow bring the sides closer together in that they are—they do have reversionary property rights and we don't want to ignore those.

    Our first panel is made up of four different people. We actually have combined our first and second panel. Our first panel was our Member panel, where Members of Congress can come and make statements, and Congressman Richard Pombo from California is here and is going to make a statement, as I understand it. And then we will hear from—and then you can be excused and we will hear from Bill Loftus, instead of Alice Saylor, with the Short Line Association. And we'll hear from Dan Foth with American Public Transit Association and Katherine Stevenson with the National Park Service.

    We want to welcome you all to the hearing today.

    At this time—have the three of you decided on an order for statements? Bill, are you going to start off?
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    Mr. LOFTUS. The Congressman is going to start, and then me.

    Mr. BACHUS. Okay. Congressman Pombo, we welcome you before the committee.

TESTIMONY OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM CALIFORNIA; WILLIAM LOFTUS, PRESIDENT, THE AMERICAN SHORT LINE RAILROAD ASSOCIATION; DANIEL FOTH, EXECUTIVE DIRECTOR, THE AMERICAN PUBLIC TRANSIT ASSOCIATION; AND KATHERINE H. STEVENSON, ASSOCIATE DIRECTOR, CULTURAL RESOURCE, STEWARDSHIP AND PARTNERSHIP, NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR

    Mr. POMBO. Thank you, Mr. Chairman. I thank the committee for giving me the opportunity to testify before you today.

    When I found out that you were holding an oversight hearing on the rails to trails, I was very interested in having the opportunity to come in and share some personal experience and things that happened in my District in California over the past several years, and possibly give you a little different perspective on this issue.

    I would disagree with one thing that the chairman said. I don't believe that you will hear opposing viewpoints from the different panels. I do think that you will hear a concern about the protection of property rights from your second panel, but the things that Mrs. Kelly talked about in her opening statement, that Mr. Oberstar talked about in his opening statement, are things that we all value. They're things that we all find important.

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    The access to recreational trails, the ability to use recreational trails are important, regardless of what part of the country you're from, regardless of what your interests are. Those are recreational opportunities that we all look forward to, and they're all very important.

    But when you look at an issue like this, I think it is very important that you know the history behind it, that you know how we ended up where we are today in terms of rails to trails, and your responsibility, obviously, is to look at how we get out of it and, if there are going to be any reforms to the legislation, exactly what those should be.

    In the early 1980s there was a strip of railroad right-of-way that ran between San Joaquin and Alameda County in an area of California that I represent. That railroad was established in the mid-1800s. It was completed in the late 1800s. And it was done with the technology that they had at the time, with the abilities that they had at the time, which was basically a hand-made trail that went through there that they laid a railroad track on top of.

    Over the years that railroad track washed out several times. The decision was made in the early 1980s that they would abandon the track; that the company that had that right-of-way would abandon it because it had washed out again. It was a major washout and there were tracks, other alternatives, that they could take. There were at least two other tracks that had similar starting points, similar ending points that they could use that were much faster, that their trains could travel on much faster, that did not require the kind of maintenance that this track required, and they made the decision that they would abandon that track.

    They, at that point, approached all of the property owners who—20 separate property owners that this track covered and asked them for an exchange. They would quick claim any interest that they had in that right-of-way in exchange for a three-foot-wide easement that they could put an underground cable on.
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    It's important to note that in most cases throughout the west that I'm familiar with, the railroad rights-of-way—that railroads don't actually own the land, they own a right-of-way, and they have no subsurface rights. So in that exchange what they wanted was subsurface rights to put in an underground cable.

    All of the property owners agreed at that point because the railroad had been washed out, it had not been maintained for a numbers of years at that point, and they made the decision it was worth doing that.

    It came shortly after that when a regional park district decided that they would like this trail in order to put a recreational trail through, and they began to compete with the property owners for that property.

    It was at that point that the property owners hired an attorney and began to look into it and find out exactly what their rights were under the existing grant deeds.

    They came to find out that they had what were known as ''reversionary property right interest.''

    When the railroads went through, they were granted this right-of-way, and in the document, in the grant deed, it said that if it was ever abandoned for railroad purposes, that it would revert to the property owners.

    Several of the property owners that were involved in this case, the land was still in the family who owned the property when the railroad went through in the 1800s, and they always had those reversionary property interest that were included in that original grant deed.
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    But they wanted to use this at that time as a recreational trail and they tried to find every way that they could to get around the reversionary property right interest, even to the point of declaring that it was a county road, at one point, in an effort—because in many of the grant deeds there was a statement that said that the county could take it over as a transportation corridor.

    You have to remember at that point there were no roads and the railroads were the transportation corridors, so they gave the counties the ability to take that land over as a transportation corridor, so the county declared it a road, never having any intention whatsoever of using it as a road. They had a major freeway that ran—an eight-lane freeway that ran the same path as this windy railroad path that went through there.

    So the intention through all of this was to put a recreational trail.

    The property owners then got together with the regional park district and made an offer that said, ''We will not fight you on putting the recreational trail in if you will agree to fence and police your trail and that the trail be clearly marked so that nobody would accidentally end up in the middle of our ranches, so that nobody would accidentally begin to litter and do other damage to the property.''

    At that point the property owners were told that they would not fence it, they would not police it, and that it would appear on a map so that anybody that was looking for recreational trail would see it on the map, but they had no intention whatsoever of policing or fencing that property.
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    It was at that point that the property owners banded together and filed a lawsuit to fight on the reversionary property interest, and that lawsuit went through several layers of courts. The property owners spent several hundred thousand dollars in attorneys' fees in trying to fight for that.

    By the time they got to whether or not it would be heard by the Supreme Court, they were told that they would accept the ICC's definition of when the railroad was abandoned, which became the issue as to whether or not they had abandoned it at the time, and they would have to go through the court system again.

    The attorney for the property owners then sat down with the property owners and said, ''We could go all the way back through the court case and it would cost you several hundred thousand dollars again in order to fight, but we can't guarantee you that you're going to win by the time we get all the way to the Supreme Court, because no matter what happens it will be appealed and it will go up to the Supreme Court again because it would be a landmark case.''

    The property owners could not afford to spend several hundred thousand dollars again to go through that again and decided to drop the lawsuit at that point.

    That trail sits there still, never having been used for anything, none of the fences are left. In fact, if I took you out there today, you would have a very difficult time of saying where that trail started, to begin with, and where it went through those hills because it has stayed virtually unmaintained, uncared for, and has done absolutely nothing in terms of benefiting the public at all.
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    But, to get back to the point of why I wanted to come over and testify, people have reversionary property rights interest. Anything that this committee or this Congress does that is an attempt to just get around those property rights interest is wrong and you shouldn't do it.

    Now, if you want to keep them for trails, if you want to keep them for future rail use, that's fine. But you should not be able to just get around those reversionary property rights interests by saying, ''We're putting it in a rail bank to save it for future uses,'' knowing full well that it will never be used as a railroad again it and will be used as a recreational trail from here on. We just want to get around the reversionary property rights interest.

    The other point I would like to make, in conclusion, is: if you decide to keep this, you have to protect those reversionary interests, you have to guarantee that those rails—that those trails are going to be fenced, that they're going to be policed, that they're going to be maintained, and that there will not be an adverse impact on the neighbors, because the way that this thing is being operated today there is an adverse impact on the neighbors, the policing, the ability—I sit on the Resources Committee, and I can tell you the Park Service does not have the resources or the ability to police their existing facilities, let alone an expansion upon that. And you have to be very careful about giving them more to take care of when they don't have enough personnel and enough resources to take care of what's currently in their docket right now.

    I think that you have to be very careful about this, and I would highly recommend that this committee look into the reversionary property rights interest.
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    Having said that, I'd be more than happy to answer any questions that anyone has.

    Mr. BACHUS. Any questions from—one thing I might say, Mr. Pombo, is I would agree with one thing you said about when you look at a railroad right-of-way that's proposed for abandonment, trying to determine at that time whether there's a foreseeable rail use in the future. On a limited number of those, I think you can make an argument that at some point it would be used for rail use again, as Mrs. Kelly pointed out one that runs into New York City. But many of them are in remote areas. They're winding routes, and I would say the majority of them—and Mr. Loftus, who represents the short lines, maybe could shed some light on this.

    I would think that most of them—it would be a very dangerous exercise to try to predict if and when it would ever be a future use for rail on those lines.

    Mr. POMBO. I know that many of them won't be used again and a big reason that they're abandoned is because there are other alternatives, there are other lines that can be used, there are other reasons that they can use them.

    We do have some short rail lines that go up that serve a specific purpose, that go into one particular company. And as long as that company is there and in business, there will be a use for that rail line. But once that company is gone, then it doesn't make a lot of sense to preserve it on that basis.

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    Mr. BACHUS. All right. And I would also agree with you, personally, that these are easements, in most cases, as opposed to grants as property ownership of the fee simple, and many times when we ignore these reversionary rights we're actually blowing through people's property rights and ignoring them. That's something we need to be more sensitive to—that they do have tangible rights and shouldn't be ignored.

    I would simply ask you, was there not tension between the trail advocates and the property owners on this particular trail as to—

    Mr. POMBO. Absolutely there's tension. It ended up being a major fight that went on for many years. There was absolutely no effort made whatsoever to try to come to some kind of an agreement on this, and once the property owners looked into it and found out that they had reversionary property rights that dated back to the late 1800s or mid-1800s and found out what the law was, they then said that we want our property back.

    And if you go back and look at these grant deeds it's very interesting. They're not exact. They go through, and the ones that I had the opportunity to look at would say, ''400 feet from the big rock to the little tree,'' and that's where they put the railroad down. And then the right-of-way is 200 feet on either side of the track.

    Well, in my lifetime the track moved several times because of washouts and they would put it back at another place. So if you're going to take 200 feet on either side of track, that's a very inaccurate way of saying where a right-of-way exists.

    But when you were going across the west at that time and through the midwest at that time, there was nothing else out there, so you didn't have to be exact. Now many of those areas run through populated cities.
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    Mr. BACHUS. Thank you. When I say that there were adverse rights, I'm not saying that people were bitter enemies, but their interests were—

    Mr. POMBO. Sometimes they were.

    Mr. BACHUS. —certainly at variance.

    Mrs. KELLY. I want to thank Congressman Pombo for coming and testifying.

    I think what you're testimony points out is that we have sort of a checkerboard situation with dealing with these property rights all the way across the United States, and one of the things that this committee can address and probably should address is working out some kind of a situation that can be applied evenly across the Nation in an equitable way.

    The other thing I wanted to ask is if anything had been done with regard to the parks people talking with you, as property people, in terms of indemnifying you had somebody strayed off the trailway from a liability standpoint. What was your liability?

    Mr. POMBO. They would not accept liability for anybody that would—that gained access to the trail and then gained access to private property from the trail. They would not accept liability for that, as well.

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    So there was a huge liability factor that was involved, as well, because this was in a very remote area of my District where there are not a lot of people, so there's a possibility that something could happen.

    In regards to your first comment, one thing about establishing a nationwide program, a lot of times grant deeds are different. Some of the grants came from the Federal Government when the land was owned by the Federal Government. Some of it came from State governments. And some if it came from private citizens because the property was privately owned. So there are differences in the original grants but you do have to take into consideration what the original grant was when the right-of-way was established.

    Mr. BACHUS. At this time there are no further questions. We'll excuse you, Mr. Pombo.

    Mr. POMBO. Thank you.

    Mr. BACHUS. Thank you.

    Mr. Loftus, we'll hear from you first.

    Mr. LOFTUS. Thank you, Mr. Chairman and members of the subcommittee. I appropriate the opportunity to be here today.

    I am William E. Loftus, president of the American Short Line Railroad Association. We're a nonprofit trade association representing about 415 short line and regional railroads.
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    Short line and regional railroads are an important and growing component of the rail industry. They presently operate 27 percent of the rail industry's route structure and account for 11 percent of railroad employment and 9 percent of rail industry revenue.

    I'm here today to urge you to remember the ultimate purpose and reason for the National Trails Act amendments passed by Congress in 1983. That purpose is to preserve rail corridors that are about to be abandoned by converting them temporarily to recreational trail use.

    I emphasize the word ''temporarily'' because I believe that some people have lost sight of the underlying goals of the Rails to Trails Act.

    While recreational trails are a very fine thing—and we certainly have heard some very positive statements about them already—and they do make beneficial use of these corridors in the meantime, the underlying purpose is to preserve these corridors for eventual re-use as railroads if and when rail use again becomes economically feasible.

    The act clearly states that the national policy is to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy-efficient transportation use with interim use as a trail clearly subject to restoration or reconstruction for railroad purposes.

    The act was passed 16 years ago and represents wise and far-sighted public policy.

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    In 1983 Members of Congress were all too painfully aware of the significant amount of rail infrastructure that had been lost forever to abandonment. The Rails to Trails Act was an effort to stanch the bleeding. The intent was to put abandoned rail infrastructure into an interim holding pattern, with the hope that at least some of these lines rail service could be restored to at a future date.

    The marginal lines shared by Class I railroads, the large railroads, fall into three categories. Many of these lines are viable. They've been purchased by new short line operators and regional railroad operators who have typically been able to operate profitably, rebuild traffic, and preserve rail service to communities. In fact, the number of short lines in this country has more than doubled since 1980 for this reason.

    At the other extreme, some lines shared by the Class Is were basket cases in that they were truly meant for permanent abandonment, with no reasonable prospect of future viability.

    Finally, the third category of lines falls between the two extremes. These are lines which are not sufficiently viable today to attract a new operator but which could be viable in the future. These are the lines which the Rails to Trails Act addresses.

    Transportation policy and transportation planning in this country are undergoing a fundamental shift. A general understanding is growing that this Nation cannot meet the transportation challenges of the future simply by continuing to increase the capacity of roads and highways.

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    As we face increasing amounts of traffic congestion, the answer is not more roads. Instead, it is increasingly clear that the answer must be found in a balanced transportation system in which all of the modes play an appropriate role in meeting local and regional needs.

    Rail is an efficient, cost-effective way to move freight. Rail can take freight off roads and highways, relieving congestion, at the same time using less fuel and causing less pollution per ton of freight moved. These are significant advantages.

    It is also a critical element for economic development and creation of jobs to have the rail option available to attract prospective industries.

    For all these good reasons, the rail option should be kept open for as long as possible.

    When a rail corridor that has been preserved on an interim basis as a recreational trail is again desirable for use as a rail line, that restoration of rail use should be expedited and favored by public policy. That is, after all, why the corridor was preserved in the first place.

    For this reason, I believe there should be a procedure in place for conversion of recreational trails back to rail use. This should be an expedited procedure, since the conversion will simply restore the rail use that had previously been in lace for many years, and since the return to rail use represents good public policy and follows the clear intent of Congress.
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    I urge this subcommittee to express to the Surface Transportation Board the sense that STB should initiate a rule-making proceeding to put in place rules for reconversion of rail right-of-way preserved as trails back to rail use.

    Our association and its members will participate actively in such a rule-making. This would provide an opportunity for a full discussion and balancing of the various interests in reconversion.

    I have attached to my statement—my time has run out—an example of the difficult in a situation in Ohio of restoring a line to rail use and what STB—the difficulty before STB, without having any procedure except new rail construction. It is not a trail restoration issue, but it stands as a good example of why we need a procedure to bring abandoned rail lines back into reconversion—reconverted active rail lines.

    Thank you, Mr. Chairman.

    Mr. BACHUS. I appreciate that, Mr. Loftus. As you pointed out, short line railroads are really more of the promise for the future as far as our rail service, and many of these lines, if they do go back into rail service, it will be members of your association that will be putting them to use.

    Mr. LOFTUS. Yes. We're very aware of that. We're also very aware of the fact that, even though it might not be active today, quite often that's the only life line that a small community may have to get back into the national rail network.
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    Mr. BACHUS. Especially if foreign oil is cut off or doubles or triples in price.

    Mr. LOFTUS. We're moving all the time towards more of a distribution of our transportation and more—hopefully more development in rural areas.

    Mr. BACHUS. Right. Thank you.

    Mr. Foth?

    Mr. FOTH. Thank you. My name is Daniel Foth. I'm the executive director for commuter rail for the American Public Transit Association. I'm here today representing APTA's 14 commuter rail systems located in the United States.

    APTA appreciates the opportunity to present the views of America's commuter railroads on the National Trail System Act, commonly known as Rails to Trails Act.

    APTA's commuter railroad members carry over 352 million people a year over 6,400 miles of railroad right-of-way. We are the fastest-growing segment of public transportation. That is because commuter railroads provide safe, reliable, and high-quality service to where commuters live and work. However, the ability of a community to offer convenient commuter rail service is a direct function of its ability to access and use railroad rights-of-way.

    Typically a commuter railroad operates over right-of-way that is part of the general freight railroad system. However, none of the 14 U.S. systems operates quite the same way. Some systems own the vast majority of the right-of-way that they operate over; other systems rely on trackage rights agreements with a freight railroad or AMTRAK to use the right-of-way.
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    The key similarity in both cases is that existing railroad right-of-way is used; that is, a commuter railroad is not attempting to create railroad right-of-way where none currently exists. This is the key feature that makes commuter railroads very cost-effective in terms of starting a new system.

    A common saying is that real estate is a good investment because no one is making any more of it. Clearly this common wisdom applies especially to railroad rights-of-way.

    As Mr. Oberstar noted in his comments, historical reality is that, once a railroad right-of-way is abandoned it is gone forever.

    After the Surface Transportation Board approves a freight railroad's application for abandonment, the right-of-way then reverts to its original owner or is sold. The land is then built up and will never be available again for railroad use. This is especially true in urban and suburban centers served by commuter railroads.

    The Rails to Trails Act was created to ensure that a community could preserve an abandoned right-of-way for future railroad use by turning it temporarily into a hiking or bicycle trail.

    APTA strongly supports the rails to trails legislation and encourages the committee to keep the law intact as a tool for communities to preserve the option to operate commuter rail service.

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    Rail-making provisions of the Rails to Trails Act are ideal for useful interim use of the corridor as a hike or bike trail. For example, the Dallas Area Rapid Transit system has acquired over 150 miles of rail corridors in the Dallas area. Because DART does not plan to use these corridors for rail passenger service for several years, rail banking the corridor for trail use is the ideal interim solution.

    Other than DART, rail banking has not been a major factor to date; however, we expect that it will become increasingly important as metropolitan areas seek to start or expand their commuter rail systems or heavy and light rail transit systems.

    A number of metropolitan areas are considering ways to provide suburb-to-suburb rail service on congested corridors. Rail banking offers a valuable means of preserving this option so that in the future these areas can offer a rail transit option as an alternative to increased congestion on beltways and suburban arterials.

    APTA does have some concerns regarding the mechanism of the Rails to Trails Act. In my review of the literature of the act in preparing for this testimony, I found that virtually all the literature assumes that a railroad right-of-way is not being preserved for future use; rather, it's being preserved for the sole use of creating a hiking or bike trail.

    For example, the former Interstate Commerce Commission, now the Surface Transportation Board, published a booklet to explain how the rails to trails program works. The handbook notes the STB procedures for using the rails to trails provisions. Only one line in the handbook's introduction refers to returning a trail for railroad use, and it reads, ''The right-of-way can be used as a trail until (if ever) a rail carrier decides to resume service on the line.''
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    The rest of the handbook describes the abandonment process and how to use the Office of Public Assistance to prepare and file a rails to trails application.

    In addition, the STB has taken action that to APTA appears to frustrate the intent of the Rails to Trails Act. STB procedures appear to require a railroad, when attempting to reconvert a railroad right-of-way back to railroad use, to treat the matter as if it was an application to construct a new railroad line.

    This has the effect of requiring a longer and more burdensome review process. To require a commuter railroad to follow new tracks construction procedures is costly, burdensome, and without any benefit to the purpose of reconverting a right-of-way to railroad use.

    If the right-of-way has been a railroad and is being rail banked for future use, the reconversion process should be an expedited procedure with minimal time and expense.

    APTA suggests that the committee require the STB to initiate procedures through a rule-making to expedite the reconversion of a trail to railroad track use. We believe the National Trails System Act has been a useful tool to planners of commuter railroad and rail transit services, and we believe maintaining the ability of preserving existing rail corridors for future passenger or freight use is critical for keeping the rail option open to future generations.

    I thank the committee for the opportunity to testify. We'll be pleased to respond to any questions.
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    Thank you.

    Mr. BACHUS. Thank you.

    Ms. Stevenson?

    Ms. STEVENSON. Thank you, Mr. Chairman.

    My name is Katherine Stevenson. I'm the association director for Cultural Resource, Stewardship, and Partnership of the National Park Service.

    I'm going to give you a synopsis of my testimony, and I request the entire statement be entered in the record.

    Thank you.

    In 1963, trails were a new idea. May Watts, a 63-year-old grandmother, wrote a letter to the ''Chicago Tribune'' suggesting that a footpath be made out of an existing trolley line. That suggestion led to citizen involvement and interest in creating the now-55-mile Illinois Prairie Path. Now there are 800 rail trails and 8,000 miles of trails.

    However, I should say that rail banking is only one effective tool of many. Only 15 percent of the 8,000 rail trails came from rail banking, and I would call to your attention the Capitol Crescent Trail here in Maryland and D.C. and the Minuteman Trail in Boston.
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    In the works are 1,100 rail trails, and by the turn of the century we anticipate there will be 23,000 miles of new trail for bikers, runners, roller bladers, and walkers.

    We attribute this growth to four different reasons: demand—that is, people's lifestyles and interest in health, the environment, and recreation are causing demands for the kids of trails; opportunity—the Congress' creation of the amendment to the National Trail System Act and the rail banking clause; citizen action—70,000 members have joined the nonprofit Rails-to-Trails Conservancy; funding—the 1991 ISTEA Act enabled communities to spend transportation dollars on trails if they so wished.

    The role of the National Park Service has been primarily, since 1988, through the rivers and trails conservation assistance program. We are the lead Federal agency to notify communities, and we have notified and provided technical assistance to approximately 40 communities, ranging in time from one-time technical assistance, a call or a visit, to much longer-term technical assistance.

    Our assistance is entirely client-driven and community based. We are there only when the community asks us. We have no role in the management, maintenance, or monitoring of these rail trails—contrary to what Mr. Pombo suggested—and rail banking is entirely voluntary on the part of the railroad, the community, and requires consensus among community leaders, constituents, and the railroad.

    We take the lead in notifying the State and local governments and others interested in the abandonment of a railroad right-of-way for use as trails. We do about 150 notices per year from the railroads, which approximately is 2,500 miles per year of trail. We notify communities. And we are trying to improve the process of notifying communities, as well, through an early warning system.
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    We also do public education on rail trails through seminars, through a how-to book, through research with universities, and through symposia that involve the rail industry, ICC, State trails, and other public interest groups.

    Rail banking has been going on for 10 years. There are 38 trails, 1,146 miles, in nine States. There are more coming. We know of 69 projects which amount to 18,048 miles. It's locally-driven, it's locally-controlled—the way it should be.

    Congress and Federal agencies have allowed the opportunity for communities to have a right-of-way, to reuse the right-of-way for the public good. We strongly support this reuse.

    Thank you, Mr. Chairman.

    Mr. BACHUS. Ms. Stevenson, you mentioned the distribution of a how-to book in your testimony.

    Ms. STEVENSON. Yes, sir.

    Mr. BACHUS. Would you submit that book maybe some time in the future for the record, just submit a copy of that book?

    Ms. STEVENSON. Absolutely, sir. I would be pleased to do so.

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    Mr. BACHUS. And also your 1992 study?

    Ms. STEVENSON. Yes, sir. We'd be pleased to do so.

    Mr. BACHUS. We'd like those available for the subcommittee.

    Ms. STEVENSON. Absolutely.

    Mr. BACHUS. Thank you.

    At this time we'll have questions of the panel. Let me start off.

    Mr. Loftus. Is there absolutely no preferential treatment for one of your clients that wants to return a rail-banked property to a rail service? Do they get any preferential treatment over—

    Mr. LOFTUS. No. The procedure you have to follow is to petition the STB for new rail construction, just like you're going to build a whole new railroad, and with that comes the full review, including environmental reviews, and the very lengthy and, we think, unnecessary process—and costly one.

    When you understand that rail service probably is running there from anywhere from 75 to 100 years but may have been out of service from five to either, or whatever, and then trying to put rail back in is like starting to build a new railroad, except you do have a linear right-of-way.
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    Mr. BACHUS. That sort of brings into question the whole purpose of the Trails Act. I mean, what was the purpose?

    Mr. LOFTUS. It seems like there's a missing element there. It recognizes that certain rail lines cannot support an economic base of operation; however, there is a long-term value of a linear right-of-way to connect that back into the national rail system. That's what you're looking for.

    But it doesn't have—the next step is: how do you do that? Well, you do that by going back, as essentially a brand new petition to the STB, and we think that's what we're recommending the committee take a good look at and STB do a rule-making of where reconversion has a specific procedure to follow, and hopefully an expedited one.

    Mr. BACHUS. Now, I'll ask this question of both you and Mr. Foth, because you mentioned the need for rule-making to reconversion of the right-of-way to rail service.

    What type of rule-making—what types of rules would you say are needed? If you were this committee and you were suggesting the need for those rules to the board, what—one might be no environmental impact statement.

    Mr. LOFTUS. Either that or you'd have a very expedited environmental review. I don't think people want—people don't want to avoid environmental issues, but other people can use environmental issues to delay it for years. But I think an environmental statement, if nothing else,is not unacceptable.
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    I think the process is one in which—and if it's permissible, we'd like to expand this for the record. Our testimony is that the ability to say, ''Here is what the program is—what we now want to use it for,'' and justify it on the economic benefit that's going to flow from that particular reconversion. On that basis you're bringing it back into the rail industry for freight purposes.

    Mr. Foth, of course, could discuss it from commuter purposes.

    But I think, following a precept procedure rather than going through a whole rail reconstruction or rail construction process is, I think, the road that we're suggesting.

    Mr. FOTH. I would agree with that.

    In Dallas' situation, where they're at the front end of the process, and having gone through the back end of the process, they are concerned about what the back end of the process might be when they decide to take these trails and put them back into use for commuter service, and I would agree with Mr. Loftus that an expedited procedure with a simplified environmental process, simple statement of use and need, should be enough to justify STB's oversight responsibilities without getting into the entire new construction process.

    Mr. BACHUS. I would say to both of you all—in one question, I'd like you to make, maybe for the record or in the next few weeks, some concrete suggestions for this committee as to how you think this process ought to operate, and in doing that, also look and see if you think that administrative procedures, alone, are necessary, or whether you think there are any statutory limitations that current law might impose on the board in this expediting rule-making, because it could very well be that there is some current law that stands in the way of that.
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    Mr. LOFTUS. At least we should know that STB has no question in terms of its authority to go ahead and do an expedited procedure.

    Mr. BACHUS. Well, that answers that second question. They think they do. Okay. Good.

    Mr. LOFTUS. I think we can both, either separately or submit it jointly, but that's a very good suggestion. I'd be happy to do that.

    Mr. BACHUS. Thank you.

    I have one question for Ms. Stevenson, but, Mrs. Kelly, go ahead.

    Mrs. KELLY. No questions, sir.

    Mr. BACHUS. Okay. Ms. Stevenson, in your statement you stressed the exploding demand for trail-type facilities for a variety of both recreational and non-recreational uses. Do you have any data that establishes how much trail use is for commuter or business-oriented travel as distinguished from pure recreation?

    Ms. STEVENSON. No, sir.

    Mr. BACHUS. Okay. You mentioned in page for of your statement that the Park Service has worked with the ICC to ensure that the notifications of abandonment are disseminated in a timely fashion. Do you make any similar notification effort aimed at letting people know of a proposed trail use?
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    Ms. STEVENSON. No, sir.

    Mr. BACHUS. Okay. Do you maybe see a need for that? That might actually affect people more than the abandonment, itself.

    Ms. STEVENSON. Actually, it has been our experience that, because of the very public nature of interest of people in the community, there's a lot of publicity in community organs that really would make our notice—which would be, of necessity, fairly minor—I would think obsolete. Usually they know about it before we do.

    Mr. BACHUS. You mean of the proposed trail use?

    Ms. STEVENSON. Yes.

    Mr. BACHUS. How do they find out about that?

    Mr. BACHUS. Well, it's usually the result of community action, usually the result of community action groups who gather together and inform the public officials that they're very interested in seeing this happen, or occasionally a public official will start the ball rolling.

    And then they frequently call us and ask us for technical advice and assistance and then we come in.

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    We give the notices out, but far and away the interest comes from the local level.

    Mr. BACHUS. Do you all sort of double-check to see whether the public has been informed of a proposed trail use?

    Ms. STEVENSON. When we're called to consult with a community, it's fairly obvious what the level of involvement is. If we're not called upon to consult, there's really no way that we can have that information.

    Mr. BACHUS. Okay. All right. Thank you. I'm sure we'll hear from the property owners, some of their witnesses, as to what they might suggest in this regard.

    This concludes the testimony and questions for this first panel. We certainly appreciate your attendance here today.

    Ms. STEVENSON. Thank you.

    Mr. BACHUS. With that, we will entertain our second panel. I guess ''entertain'' is not the right word, but we invite our second panel to come forward.

    While the second panel is being seated, I'll say that, for the record, minority staff has produced for us at least evidence of some surveys which show that, on three urban trails, 39 percent of the weekday use was by people using it for transportation purposes, as opposed to recreational purposes.
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    We'll submit this for the record. That will be very helpful.

    At this time I'd like to the second panel maybe to introduce themselves, tell us where you're from, and Ms. Glosemeyer from Marthasville, Missouri, will be first.

    Where is Marthasville, Missouri?

    Ms. GLOSEMEYER. It's about 60 miles west of St. Louis.

    Mr. BACHUS. Okay.

    Ms. GLOSEMEYER. Along the Mississippi River.

    Mr. BACHUS. On the Kansas City—is it towards Kansas City, or—

    Ms. GLOSEMEYER. No. It's about 16 miles south of Interstate 70 and about 60 miles west of St. Louis. It's along the Missouri River.

    Mr. BACHUS. Okay. Good. We're glad to have you.

    Have you had a lot of flooding in Marthasville?

    Ms. GLOSEMEYER. Yes, we have.
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    Mr. BACHUS. I be you have.

    Ms. GLOSEMEYER. The river's three miles away, but on occasions it's in my front yard.

    Mr. BACHUS. I'm surprised you don't have water marks on you.

    Ms. GLOSEMEYER. I should bring them with me.

    Mr. BACHUS. Thank you. Ma'am, you go ahead. I'll just say—you're representing any certain associations or—

    Ms. GLOSEMEYER. No. I am just a private landowner here to try to represent my property rights.

    Mr. BACHUS. Okay. Thank you. And Mr. Nels Ackerson, we're glad to have you.

    Mr. ACKERSON. Thank you.

    Mr. BACHUS. Tell us where your from and—

    Mr. ACKERSON. I have a law firm here in Washington, but I'm really a transplanted Hoosier, and they didn't pull up all the roots so I have some ties back in Indiana.
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    Mr. BACHUS. Great. It's good to have you.

    Mr. ACKERSON. Thank you.

    Mr. BACHUS. And Mr. Peterson?

    Mr. PETERSON. Yes. Good afternoon. My name is Joseph Peterson. I live up in Stanley, New York, which is in the heart of the agricultural area, which is basically about 100 miles west of Buffalo. And I represent myself, I represent literally dozens and dozens of people who have contacted me in regards to our situation, people who have come to our aid, people who have contacted me asking what to do. And that's basically why I'm here today.

    Mr. BACHUS. Okay. Did you say 100 miles—

    Mr. PETERSON. I'm sorry. East. Did I say west?

    Mr. BACHUS. Yes.

    Mr. PETERSON. I meant east.

    Mr. BACHUS. I was trying to figure 100 miles west of Buffalo, and I was trying to put you in New York.

    Mr. PETERSON. Smack between Syracuse and Rochester.
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    Mr. BACHUS. Thank you.

    Mr. PETERSON. Up in Canada, I think, out in a lake somewhere.

    Mr. BACHUS. Thank you. And Mr. Welsh, Richard Welsh?

    Mr. WELSH. Yes, Mr. Chairman. I'm from Issaquah, Washington, which is about 17 miles east of Seattle on Interstate 90, and I'm the executive director of the National Association of Reversionary Property Owners, which is kind of self-explanatory what it's for.

    Mr. BACHUS. All right. Thank you.

    I bet you're aware of some adverse interests, aren't you?

    Mr. WELSH. Yes, sir. I've heard from 44 States so far.

    Mr. BACHUS. Okay. Have you agreed on an order of testimony? You can simply start in the order in which they're listed, unless you have a preference. And, other than your prepared remarks, if you want to say something else, don't feel that you have to stay right with the prepared remarks.

    We'll just start—how about Mr. Welsh?

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TESTIMONY OF JAYNE GLOSEMEYER, MARTHASVILLE, MISSOURI; NELS ACKERSON, CHAIRMAN, THE ACKERSON GROUP; RICHARD WELSH, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF REVERSIONARY PROPERTY OWNERS; AND JOSEPH PETERSON, STANLEY, NY

    Mr. WELSH. Members of the Rails Subcommittee, I'm Richard Welsh, executive director of the National Association of Reversionary Property Owners.

    We want to thank the committee for the opportunity to speak about this important issue.

    NARPO is a nationwide nonprofit organization dedicated to the preservation of reversionary property rights for tens of thousands of property owners throughout the United States.

    We have been involved with the rails to trails issue since 1985, when the Interstate Commerce Commission started the rule-making process for the rails to trails law.

    NARPO is our acronym for our association. NARPO currently is working with the aggrieved property owners and taxpayers in 44 States.

    Because NARPO has been involved with the rails to trails since the ICC rule-making, we have a greater depth of knowledge about the property owner issues than anyone else.

    Regardless of the intentions of the supporters of rails to trails, this has become a scam.
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    Why do I call this a scam? What would you call a process that lets someone—the trails groups—use public money to buy something—railroad rights-of-way—from someone—the railroads—who don't own it in the first place, simultaneously avoiding all environmental review and abrogating long-established contractual property rights?

    What would you call a process which uses gas taxes to do this while you still drive on broken and rutted roads?

    The average person would call this a scam, or something much worse.

    But that is exactly what Congress did in 1983 when they passed the rails to trails law. When Congress passed this law in 1983, it was a one-paragraph section of law among hundreds of much-longer section of the National Trails Act Amendment. There were no specific hearings on the rails to trails issue. It was one small paragraph jammed in amongst hundreds of other sections, most of which had to do with specific trail additions to the national trail system.

    The railroads originally were against the rails to trails and said so in the original ICC rule-making hearings. It didn't take the railroads long to figure out how to make a lot of money and get rid of a lot of linear toxic waste dumps by using the rails to trails scam.

    Here's how it works: the railroad files for abandonment and hopes a trails group steps forward for rail banking. The railroad, who generally owned less than 5 percent of the rights-of-way, then holds up the trails group by saying, ''If you don't agree to pay the railroad its asking price, the railroads will let the land revert to the owners, consequently no trail.''
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    The Government then says, ''Wait a few months until we can get some ISTEA enhancement money and we will deal at your price.'' Nice deal for the railroads.

    They've had 120 years of dumping on the right-of-way, and the Government takes it off their hands and pays them to boot. Nice deal for the railroads.

    With that for background, let's see what this law has done to property owners and taxpayers in its ten years of existence.

    This law has programmed over 3,100 miles of trails across 62,000 pieces of private property without paying one cent in compensation for the loss of reversionary rights. Over $240 million of Federal gas tax money has already been appropriated for rails to trails. This law has put over 3,100 miles of trails down or proposed without proper environmental review.

    I might add that the trails are exempt from environmental review under title 23, section 771, and, as such, they don't get any review, but, as the short line people and transit people said, they have to go through complete environmental review in order to go back the other way.

    The only way property owners can fight these trails is to convince their elected officials not to build the trail. This has been successful when property owners know somewhat in advance a trail is being proposed.

    Probably one of the worst aspects of this law is that private entities—in this case the Rails-to-Trails Conservancy or some other private trails groups—can put these trails in place without ever being subject to the electorate.
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    When NARPO approached the ICC three years ago to change the rules so that property owners could be notified before a trail was built, the ICC and the trails group adamantly opposed us. All we asked for was a simple notice in the local newspaper.

    The ICC and the trails groups' response was for the property owners to read the ''Federal Register.'' Of the population, 99 percent does not even know what the ''Federal Register'' is, much less know how to access it.

    Most of the property owner hostilities to rails to trails comes from lack of notification. They feel their government has let them down.

    Rails to trails effectively means the extinguishment of reversionary rights. The United States Supreme Court has said these rights can be taken, but the court also said the Constitution requires just compensation must be paid for the taking. This fundamental Constitutional protection of just compensation and due process allows the minority to protect themselves from the over-reaching of majority government.

    Do the railroads have to give up their rights without compensation to establish trails? No. That fate is reserved only for the unorganized property owner kept in the dark through a process that favors trails groups.

    In 1995 NARPO proposed legislation to this subcommittee that would make trail users pay just compensation to the reversionary property owner at the time the trail was installed. We urge you to provide for just compensation in a timely manner for these takings and not to proceed further down the slippery slope of degrading Constitutional protections for property owners and taxpayers.
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    The next part I talked about on the title 23 already, but we do urge you to write NEPA review into this rails to trails law and not exempt it, as it is today.

    We have a couple of enlarged photos, some of which are being passed around. The one on the far easel there is a proposed trail that's coming up fairly soon. If you'll notice, it sits on a lake shore in the Seattle area with the beach on the other side, with a dock, and the home being up above. There are over 500 of these on that particular lake, each of the homes somewhere between three-quarters of a million and a million dollars in value. The land, itself, sells for $8,000 a front foot. And it's not there because of railroad. I can tell you that. It's because of the water.

    Our beaches would be destroyed and we'd have thousands of people walking through.

    That's one of the problems with the rails to trails law—one size fits all. You've probably heard that term many times in the last few years about welfare and many other things with the Federal Government, and that's another problem with the rails to trails law. You take this, and you can take it through a farm land or you can take it through a residential area or through an industrial area. Everything is different, but this law treats them all the same. The property owner has no say at all.

    With that, I'll answer any questions when the panel is done.

    Thank you very much for this opportunity.
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    Mr. BACHUS. Let me just ask one question now, if I could.

    Mr. WELSH. Yes, sir.

    Mr. BACHUS. These pictures are also from that same railroad?

    Mr. WELSH. Most of them are, but two of them are from another one in the Seattle area that's being proposed also.

    Mr. BACHUS. Some of them appear to be that the rail line may still be in use?

    Mr. WELSH. Yes, sir. That is a single customer. In fact, they haul surplus Government butter, the agricultural program. And the railroad unilaterally just embargoed it here just within the last three weeks, so whether it will be turned into a trail and abandoned, we don't know.

    I wanted to—I believe Mr. Oberstar or yourself referred to me as an attorney. I am not an attorney, for the record. I don't know where that came from. Sometimes I do talk like them, but I am not an attorney, sir.

    Mr. BACHUS. That's a terrible mistake.

    Mr. WELSH. Well, that depends.
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    Mr. BACHUS. All right. Thank you. That's right. He's probably liable for damages.

    Mr Peterson?

    Mr. PETERSON. Good afternoon, Mr. Chairman, members of the Railroad Subcommittee. My name is Joseph Peterson and I am a property owner who has been affected by the rails to trails movement in New York.

    For three years I have done research on rails to trails as a result of a heavily-opposed project by a group called ''Ontario Pathways,'' which made its public debut in March of 1993.

    Although it will be difficult to impress upon you in only five minutes more than a decade of horror stories and activities, I hope that you will have a better outlook on how our lives can and will be affected should someone think that your side, front, or back yard would be a nice place for a public trail.

    Four years ago I never could have believed I would be appearing before you here in Washington, D.C., trying to convey how devastating these trail projects can be to people being forced to live with them, like it or not.

    Being an Eagle Scout and having been active in hiking, backpacking, and, yes, even building trails, I was intrigued by the concept of rails to trails until I found out the reality of what was really happening across the country.
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    In our situation, the trail group not only refused to work with the adjacent landowners—consisting of mostly agricultural and private homeowners vehemently opposed—but it also attempted to hand over all its liability exposure, maintenance needs, and bridge repair headaches to the county.

    Since the costs were going to be so unaffordable to such a small group, they apparently thought the county would jump at the opportunity. But they were wrong and the county protected the best interests of its taxpayers.

    I became even more involved after I was contacted by an assistant county district attorney acting as legal counsel for the trail group who proceeded to tell me that I was trespassing on parts of my own land now being claimed by the trail group, and I was instructed to either sign a lease agreement with them or vacate those portions.

    I had to hire legal counsel, and fortunately I was able to do most of the research myself to help reduce costs. The outcome was to have the trail group eventually admit they had no rightful claim to my land; however, they would not reimburse me for the costs in proving that fact.

    Recently, in Washington County, New York, the State battled landowners in the courts over ownership of railroad property purchased by the State for trail development, only to lose to landowners who had taken rightful claim to their land. The State not only wasted tax money on a bad investment, but they also battled taxpayers in the courts, using even more State taxes, and all because of inadequate research.
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    When our pleas for help went out over three years ago, we never could have expected the amount of information received. It was saddening to read how some of the letters explained how normal lives had been so drastically changed, and changed forever. How unfair to read how century-old agreements between landowners and railroads were being ignored based on interim trail use. How unconstitutional that our Nation would allow the taking of people's land without any recourse except a judicial system which has failed so many by the mere expense and time involved.

    According to most, the system is failing us by allowing closed-door meetings, improper notification to adjacent landowners, secret dealings before being made public, and the list goes on.

    In Iowa a book was compiled that incorporates more than 300 pages of problems with rails to trails in that State, alone. Combined with other documents, it now exceeds 700 pages.

    Numerous organizations, like the Alliance for America, NARPO, and the Farm Bureaus have all been actively involved in helping to protect private property rights from rails to trails.

    Questionable spending of tax money for trails is of major concern, a recent example of which is proposed excess of $14 million in Federal disaster funds for trail repair.

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    The millions of dollars being spent to promote trails for pleasure is objectionable when our elderly, handicapped, disabled, and poor are being forced to tighten their belts between budget cuts, while it was announced that the national park system had such a tremendous backlog of maintenance and repair that it was necessary to raise user fees, while the Surface Transportation Board raised its fees just to help pay for itself, due to lack of funding for its own budget.

    It is devastating to find out how many millions of dollars are being budgeted for trails and then be told that educational programs for our children have to be reduced or eliminated due to lack of funding, that college grant and scholarship programs are being reduced and tuition is going up because the money just isn't there.

    The time allotted for comment only begins to scratch the surface on what is actually happening in the real-life situations. I know the expense and time it has taken us to gather information for just our situation in New York. I can only imagine how much time and research is needed to do an accurate study across the country.

    I thank the subcommittee for allowing me time to comment from a real-life standpoint and for allowing these issues to be brought out in the open before you today. We are all counting on Congress to help resolve the atrocities being allowed to take place across our great Nation, to help right the wrongs that have led us to this hearing, and to help prevent any further damage from being done before it's too late.

    Hopefully, Congress will mandate that trail groups be financially responsible and held accountable for their proposed trails instead of the taxpayers, and that Congress will also impress upon the need for environmental reviews before projects are blindly authorized.
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    Congress needs to take the time to listen to the real-life problems associated with rails to trails.

    Thank you very much.

    Mr. BACHUS. Thank you, Mr. Peterson.

    Ms Glosemeyer?

    Ms. GLOSEMEYER. Mr. Chairman and members of the committee, I am Jane Glosemeyer, a landowner from Missouri, and I came here today to tell you that the National Trails System Act may produce trails, but in the process it destroys something more precious than money can ever replace.

    My husband and I learned of this Government land grab by reading the sports section of the ''St. Louis Post Dispatch.'' Landowner notification of a land use change is not a part of this scheme.

    We own and operate a farm that has been in our family for over 100 years, and it was a great-uncle that granted and recorded an easement allowing 12 acres of land to be used ''for the purpose of a right-of-way for our railroad and for no other purpose, in 1889, to the Cleveland, St. Louis, and Kansas City Railway Company.'' I now own a 12-acre State park.

    A landowner group, we formed in Missouri spent over $150,000 to fight this government land grab in State court, Federal court, U.S. Supreme Court, and now I'm in U.S. claims court.
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    Over nine-and-a-half years of my life has been spent in some form of litigation.

    We did not seek compensation because no amount of money can pay for the loss of the freedom to choose how our land can be used. This confiscation of private land for public use has left me feeling like a second-class citizen without a country.

    The Surface Transportation Board, in their statements, claim that those who acquire interim trail use certificates have accepted full responsibility for that rail corridor, but this isn't true. I have learned the ways that government agencies and special interest groups, like the Rails-to-Trails Conservancy, use to avoid the obligations they assume under this rail banking scam. And yes, even trail proponents admit that rail banking is a myth and just a way to get old railroads without having to pay for them.

    The State of Missouri used Federal law to supersede my State property rights, and then they turned around and used State law to say that they are exempt from paying the taxes. They also claim that, since they are not a railroad and they are a State park, they are not obligated to assume the responsibilities of the railroad company in maintaining the rail corridor.

    Because they have shirked their obligations, our school, fire, ambulance, levee, drainage districts, and even our county administration have all lost tax revenues, placing more of a burden on the rest of the property owners in our county.

    These tax-supported groups are now forced to use their funds to hire attorneys to sue, diverting their monies from its true purpose.
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    Landowners not only lost the use of land that should have reverted back to them upon rail abandonment, but we are now forced to pay for the maintenance that trail managers refuse to do.

    I'm stubborn and I refuse to accept this treatment, so I have tried many avenues to find relief for the landowner who receives no recognition.

    Rail companies welcome this new law and concept of rail banking because they receive money for land they do not own nor do they have the right to sell. My legal contract with the railroad company doesn't even merit notification that a change of use may occur, let alone anyone asking my permission.

    Where am I to go to seek justice when the whole point behind this confiscation of private property for public use is to render the landowner completely helpless?

    My State government will not help me because they are the thief in the night and their sole purpose is to provide trails as cheaply as possible.

    Rail banking is not their intention, because if it were they would not be abandoning flood-damaged sections of rail corridor and placing trails on newly-constructed levees or seeking ways to circle the large holes left by nature's fury.

    To preserve a rail corridor for future use, you do not negotiate with towns to abandon the rail sections near grain elevators, and that's the main users of the rail corridors in our area. And then they construct new trails in different areas.
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    Whose job is it to protect me?

    Petitioning the Interstate Commerce Commission in 1990 to ask for their assistance to make sure rail banking is carried out was useless.

    Where do I go from here? I finally come to you, and I thank you for this opportunity to make my country understand the true effects of this law.

    Trails can be implemented without destroying the American dream. Approximately one-third of our Nation is already under Government ownership. Do we need to make more laws that steal land?

    And I refer to it as ''stealing'' because I did not give my land for trails, nor did anyone purchase it.

    I ask you what precedent this law sets. Whose land will the special interest groups go after next? Your land? Are the other easements on my property safe from being taken?

    I ask you to repeal this law, but if that is not possible, then please consider the suggestions that I submit to help relieve the landowner. My suggestions are based on ten years of experience in living along a trail and fighting for landowner rights.

    Since my time is up and it is difficult to explain ten years in five minutes, I'd be happy to answer questions.
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    I also have a picture of our farm to show you how it bisects our farm in half. I'd like to explain to you how it feels to operate a 300-acre farm with a State park 30 yards in my front yard and how difficult it is to house livestock out of harm's way when you have thousands of people coming in between your farm.

    Thank you.

    Mr. BACHUS. Is this the picture over to the far left?

    Ms. GLOSEMEYER. Yes, sir. If you notice, we have sheds, and we used to have livestock housed south of the trail. The first white section is the trail, and then there is a county road and my front yard. It's approximately 30 yards from it. And we now house our livestock about two miles from our farm because there was no way of keeping trail users out of our livestock pens and away, and my husband and I came to the conclusion either we have to stay on our farm 24 hours a day to make sure there is not a trespass problem with our livestock or we have to move the livestock away.

    Was that your intent to burden me like this, whenever this law was passed?

    Mr. BACHUS. Well, I wasn't in Congress when it was passed.

    [Laughter.]

    Mr. BACHUS. I'm glad to say.
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    How wide is this trail through your property?

    Ms. GLOSEMEYER. It's 100 feet wide. The easement was 100 feet wide that my great-uncle granted 100 years ago. Yes.

    Mr. BACHUS. Are they still—is the State park still exercising control over the whole 100 feet?

    Ms. GLOSEMEYER. Our governor told us when he enacted the trail that whatever was carried on adjacent to that corridor was allowed to happen, and the State park basically maintains the ballast section and the mowing, although their mowing isn't very good. We've almost had several accidents trying to cross the trail because they're not maintaining it as they should.

    Mr. BACHUS. And how many people come across your property every day?

    Ms. GLOSEMEYER. We live in a very rural area, and so on weekends we have a little bit more usage of it. As you get closer to St. Louis it's more heavily used. But by us it's right—at the present time it's not widely used.

    Mr. BACHUS. The 12 acres is on your property then? It's all 12 on—

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    Ms. GLOSEMEYER. Yes. It's a one-mile section, and a mile at 100 feet wide goes into 12 acres. It converts to 12 acres.

    Mr. BACHUS. The rail line, where did it run from?

    Ms. GLOSEMEYER. It ran from St. Louis to Texas. It was the MKT—Missouri, Kansas, Texas Rail.

    Mr. BACHUS. All right.

    Ms. GLOSEMEYER. It lies in a floodplain.

    Mr. BACHUS. When was it abandoned?

    Ms. GLOSEMEYER. In 1986 when it flooded. The rail company realized that it was not profitable any more to maintain a corridor in a floodplain.

    Mr. BACHUS. That was the Katy Railroad?

    Ms. GLOSEMEYER. Yes, sir.

    Mr. BACHUS. Okay. Let me ask you this: I don't want to break this up, but—I'll come back. We'll get all the testimony.

    Mr. ACKERSON. Mr. Chairman, I am Nels Ackerson. I am a lawyer. I don't have the—I recognize that I confessed that earlier, unlike Mr. Welsh.
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    I don't have the privilege of representing Ms. Glosemeyer, but I do represent thousands of individual homeowners, landowners, retirees, families, small businesses, farmers, and others from coast to coast, either individually or in class actions, in trying to protect their property rights from railroads and from the successors to railroads—in some cases trails advocates.

    There are thousands of human stories very, very similar to the story that was just told by Ms. Glosemeyer.

    Many of my clients enjoy the outdoors. Many of them live in the outdoors. Some of them are trail users. A picture of one of the properties that's on a trail that was proposed and is still being pursued in Michigan is on the stand to the right, and I have a number of smaller pictures of that same property.

    I want to tell you a short story of one of the landowners on that property a little bit later.

    My law practice has led me to be involved in numerous Federal court actions involving trails. We have taken six cases to State Supreme Court, an equal number to State courts of appeals.

    I will give you ten specific legislative suggestions, based upon the experience that we have had, and I think they are not just in the best interest of the landowners, but I think they are in the best interest of our system of government and of all people who believe that those interests should be maintained—not just landowners, but trail users, railroads, farmers, and the public, at large.
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    The landowners that I speak of are not just adjacent landowners, as I hope the point has been made very clearly now, they are the landowners. That point sometimes has been overlooked.

    In most cases the right-of-way that a railroad has used has been just as Ms. Glosemeyer explained it—it was granted for the purpose of running a railroad. The railroad did not buy the land; it bought the right to cross the land. And upon abandonment, under State law in most instances, the landowners have that land again, unburdened by the easement, and the railroad has nothing left to sell.

    It is important, I think, to recognize that there are two very different perspectives on looking at a railroad corridor. Those who look down a railroad corridor and see a potential trail have quite a different perspective from those landowners who look across the corridor and see the rest of their farm that could now be united and farmed as a whole, or who see their back yard, which can now be used by their family in privacy and enjoyed to its fullest extent.

    Some of the history, I think, of the situation we're dealing with right now arises or arose long before the Trails Act was passed, and in my written testimony I have described events that have arisen and information that has arisen out of our litigation on behalf of landowners, which has revealed a pattern of fraud by some of the Nation's major railroads and their successors that has gone on for many years.

    Those are strong words that I'm using, and I'm using them as a lawyer. I have brought with me documentation to support all of the statements that are in my written testimony.
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    Before and after passage of the Trails Act, railroads, in some instances, nationally and systematically have demanded from landowners, who legitimately own the land, large sums of money for the landowners to ''buy'' back from the railroad the land that the railroad knows it does not own and the landowners already have a right to possess. I think this smacks of extortion.

    Homeowners, farm owners, small landowners, churches, little league clubs, and others in my experience have been bilked by some of the railroad companies out of millions and millions—and I think it's fair to estimate nationally hundreds of millions of dollars of their property rights, either by being demanded that they pay to get them back or by having them sold for development or for corridor usages such as fiber optic trails or fiber optic corridor uses.

    Now, it is against this background that many landowners have viewed the Trails Act as yet another way that railroads can sell interests that they do not own on real estate that they never purchased, even after abandoning their common carrier obligations.

    Even worse for many landowners, where a train occasionally crossed their land across a faxed track in the middle of the right-of-way without invasion of their privacy, the rails to trails measure would allow the entire corridor through their land, sometimes right up to their kitchen and bedroom windows, to be used at all hours of the day and night by anyone at all, regardless of motives.

    That's why, when persons say, ''Isn't a railroad more intrusive than a trail?'' the answer to many is ''Absolutely not.''
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    A railroad stays on the tracks and goes by; a trail exposes people to invasion of privacy in their home 24 hours a day and terrible disruption, in many cases, to their lives.

    I am asking—and I appreciate the green light remaining on for another minute—I am asking not that the objectives of the Trails Act be abandoned, and I would like to make sure that I clarify a statement that Congressman Oberstar made in his opening statement. I don't think you will find landowners here today who are opposed to rail banking. That is not the point. I think you will find landowners who want to be treated fairly in the process, whether rail banking is used for trails or for some other purpose—and it doesn't have to be for trails. Rail banking can be done in many different contexts. That will be one of my suggestions.

    I want to make reference, however, to this particular site where you see the remnants of a railroad that was abandoned, it turns out in the late 1970s—finally abandoned—for which a request for rail banking was made in 1995. That grant for rail banking was ordered by the Surface Transportation Board. To its credit, ten months later it reversed its decision, holding that it had no jurisdiction over that land.

    In the meantime, this corridor has been used as a trail. There is a person whose name I do not care to disclose, but I'll call her ''Mrs. Whitmore,'' who has a home along that line very close to the same kind of rail to the abandoned railroad as you see there. Mrs. Whitmore went to her kitchen early one morning to get a cup of coffee in her nightgown, looked outside of her kitchen window, and saw looking down at her from above a man on horseback enjoying the trail.
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    That is the kind of invasion of privacy that is of great concern.

    There are other stories about that particular trail that should be mentioned because they illustrate many flaws in the process. How can a trail be built without notice to landowners on land in which the Federal Government has not had jurisdiction for 15 years? And how can the trail be allowed to continue?

    One reason is because the Surface Transportation Board simply does not have the resources to police, in many instances, its own orders.

    One of the points that I would like to make—and then I would like to list the ten proposals and to respond to questions—is that the Surface Transportation Board really has no capability to enforce its own orders, even stay orders that would delay the implementation of a trail banking or rail banking order. They do not have the resources to act as the local constable, to act as the local zoning board, to act as the local police force; yet, they preempt State and Federal law and, in many instances, make it impossible for counties and townships who would like to enforce their own laws to do so. There are a number of instances like that.

    The ten proposals that I would like to advance are the following:

    One, require railroads to provide timely personal notice to each landowner before each proposed abandonment—a fundamental principle it seems that should find no objection. The landowners are never given the right to object in the Trails Act. The railroad is given the right to veto a trail. The landowners, who own the land, don't even have a right to know that it's going to happen.
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    Two, require railroads to reveal to each landowner before abandonment the full and complete legal basis on which the railroad has claimed its right to occupy the corridor. There are thousands of instances in which railroads have claimed that they have documentation in their files, unrecorded, that gives them the legal right to claim a fee interest in the railroad, and we have discovered that those are not always true.

    Three, permit and encourage every landowner to participate in the abandonment proceeding and to offer reasons for or against rail banking or trail use.

    Four, permit rail banking without interim trail use and permit landowners to retain abandoned railroad corridors for non-trail uses that will preserve the opportunity for restored rail use in the future. Not every rail banking has to be a trail.

    Five, require the Surface Transportation Board to consider all comments by landowners, to make specific findings concerning the effects of proposed interim trail use on the safety, health, security, and privacy interest of the landowners and neighboring residents, and base thereon to make a determination of suitability for trail use before issuing an E-2 or a C-2 to convert it to a trail.

    If I may continue with the other five, Mr. Chairman.

    Six, require the Surface Transportation Board to impose conditions to protect the safety, health, security, and privacy interest of landowners where necessary or appropriate before issuing a C-2 or an E-2.
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    Seven, create a predictable, objective, bright-line standard that abandonment is deemed to be consummated, I suggest no longer than nine months after issuance by the Surface Transportation Board of authority to abandon.

    Presently, one never knows when abandonment may be deemed to be consummated. If a railroad claims it really did not mean to abandon, because it has found a purchaser for a trail, it has merely, in most instances, to tell the Surface Transportation Board that and an abandonment such as this one, that happened many years ago, although it occurred in the late 1970s, may be reopened without a possibility for landowner involvement first.

    Eight, require the Surface Transportation Board to supervise, monitor, and enforce its orders on rail-banked land or to empower State and local governments to do so without preemption by Federal authorities.

    Nine, create a procedure for reinstatement of rail service on rail-banked corridors.

    Ten, provide a clear and simple procedure to compensate landowners for their interest in land that those interests have been taken as a result of a rail banking order.

    Thank you very much.

    I did want to say at the outset that I appreciated greatly the balanced way in which, Mr. Chairman, your opening statement was made, and also Mrs. Kelly's opening statement, in recognizing the importance of landowners' property rights in balancing what we're doing here today.
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    Mr. BACHUS. Thank you.

    Let me ask the first question I have. Mr. Welsh, you brought it up first, but I'll ask if other panelists want to comment.

    As I understand your statement, you said that the ICC and the Surface Transportation Board has refused to alter its rails to trails regulations to require that adjacent property owners be given notice of a proposed banking of a rail corridor?

    Mr. WELSH. Yes, sir. I believe it was 1990. Actually, the first time we proposed it was in 1990 and we were summarily dismissed then after a rule-making comment period. And we expanded on that in 1993, I believe the time frame was, and asked again in a little bit different way, and they had a comment period and they ruled against us. And we appealed that to the United States court of appeals for the D.C. circuit.

    Mr. BACHUS. That was going to be my next question.

    Mr. WELSH. And we were turned down by the D.C. circuit. They agreed—they deferred to the agency decision, which was the ''Federal Register'' was adequate enough notification for property owners.

    Mr. BACHUS. That the Federal regulations being listed in the ''Federal Register'' was adequate?

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    Mr. WELSH. They said that it was adequate notice for the property owners. And, as I said, who reads the ''Federal Register''?

    Mr. BACHUS. I understand that. Yes.

    Mr. ACKERSON. Mr. Chairman, I might make one observation along the same line.

    There was an article in ''Governance Magazine'' recently in which I was quoted as making a suggestion that what we really need most is to have a more open environment where landowners are given a notice and an opportunity to participate so that there can be less controversy.

    I think you would find that in many instances there would be less controversy and more receptiveness to any use if the people are involved in it who are most affected.

    I believe in that same article there was a response by some of the trails proponents that they agreed that an open process would be favorable.

    Mr. BACHUS. Sure.

    Mr. ACKERSON. I see that as opening the door to reduce the controversy, and I welcome it.

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    Mr. BACHUS. I agree. I agree.

    Has anyone brought this issue before the new Surface Transportation Board?

    Mr. PETERSON. Earlier this year myself, and I believe Dick did and several other people, submitted testimony to the Surface Transportation Board about recommendations on rail abandonment procedures, and I think one of everybody's recommendations probably was the proper notification to all what's being deemed as adjacent landowners, but when technically it could be actual landowners.

    To date we have not had any response on this. I've contacted the STB on this several times, and last I heard was they said that maybe in September we might get an answer, and this was back in March or April.

    Mr. BACHUS. Would you supply a copy of that correspondence to the committee?

    Mr. PETERSON. I will. I'll have to send it to you.

    Mr. BACHUS. And also advise us if and when you receive an answer.

    Mr. PETERSON. Yes.

    Mr. BACHUS. The next thing—Mr. Ackerson, the Vermont case, the Preseault case, are you counsel for any of those?
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    Mr. ACKERSON. I'm not counsel in that.

    Mr. BACHUS. I didn't want to ask you if you were.

    Mr. ACKERSON. I've been following that case, but no, I'm not counsel in that case. I'm familiar with the issues and I have a number of clients who will be affected or who may have to bring their own actions, depending on what happens in that case.

    Mr. BACHUS. This committee—you can understand that, from some of the legal issues, we're interested in that case, too, and it may actually resolve some of these issues.

    Mr. ACKERSON. And there is a role for the Congress, regardless of the outcome of that case, because if the Congress believes that it is right and fair and just to compensate landowners, it can arrange that that would be done.

    Mr. BACHUS. Exactly.

    Mr. ACKERSON. It does not have to wait for a court to say that that is compelled. There's a difference between doing what the law requires and doing what's right, and I would suggest that what is right is to compensate people whose land is taken.

    Mr. BACHUS. What time frame—I'm not associated with that.

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    Mr. ACKERSON. All of us here have been waiting for that for months, and the time frame is in the control of the court of appeals for the Federal circuit right now, and it has been a very complicated—procedurally complicated case. It could happen tomorrow or it could be months from now.

    Mr. BACHUS. Okay.

    Mr. WELSH. I could give you an update on that, Representative Bachus.

    Right after Mr. Preseault lost his appeal to the U.S. Supreme Court in February of 1990, he was completely out of funds. He had lost his job as an Eastern Airlines pilot when Eastern Airlines went bankrupt. He's still paying off his legal fees from that. And he was able to get the New England Legal Foundation to take it on a pro bono basis, basically, if he would pay minor costs that come up.

    They had a hearing—one of many—in 1991 and they waited. I believe it was 23 or 26 months for the—the claims court ruled within a period of three or four months on two different occasions because the case was bifurcated into three different areas, three different sections.

    Mr. Preseault prevailed somewhat on the first section or phase of the case. In the second case they ruled against him.

    One of the points of law—
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    Mr. BACHUS. I have read that. I guess to only thing—

    Mr. WELSH. Anyway, then he went to the—

    Mr. BACHUS. —I'm not sure of is actually when the—I've read what has been ruled on, so I don't need an update on that. I just was curious as to when the next court ruling may be.

    Mr. WELSH. We waited 23 months for the Federal circuit the first time, so hopefully we don't have to wait that long on their re-look on this.

    Mr. BACHUS. Thank you.

    At this time Mrs. Kelly is going to ask questions. When she concludes hers and Mr. Oberstar concludes his questioning, then we're going to recess for five minutes and take a five-minute break, and then the third panel—we'll hear testimony from them.

    At this time I'm going to the floor to make a speech.

    Mrs. KELLY [assuming Chair]. Mr. Oberstar, I recognize you for questions.

    Mr. OBERSTAR. You go ahead.

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    Mrs. KELLY. I have a couple of questions for this panel.

    The first is that, for the property owners who have extended railroad rights-of-way, I want to know, are you liable for property taxes on the land set aside for rail banking?

    Ms. GLOSEMEYER. It's handled—in Missouri it's handled in a couple different ways by the county that you live in.

    Up until 1985 we paid taxes on the number of acres that was in our deed and the State started taking aerial photos and they eliminated, in our county, the 12 acres that we own but that is used by the railroad company.

    In an adjacent county, in St. Charles County, they still pay the property taxes on the full amount of acres that they own. That was what the landowners there told me.

    Mrs. KELLY. Mr. Ackerson, what has been your experience?

    Mr. ACKERSON. My experience has been that there have been dramatically different patterns followed under State law and State procedure from State to State, and, as Ms. Glosemeyer just mentioned, sometimes even within States.

    There are some States in which railroads are not taxed for their right-of-way until after it is abandoned. There are some States in which railroads are taxed on the aggregate amount of their right-of-way and other properties in the State on a Statewide basis with allocations then to the different counties and townships, making it very difficult to know in any given year what the railroad has determined to be still within its tax base, but that does vary a great deal from State to St.
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    Mrs. KELLY. Thank you.

    Does anybody else care to comment on that?

    Mr. PETERSON. This is a slightly different situation, but in upstate New York we have one situation where one of the landowners has records of paying taxes on the railroad property for a period going back into the 1940s; however, the trail group came into play on this. They held an executive session with the town board, and when they came out the grandfathered the property for trail use.

    In this case right now, the woman that owns the property has had a severe heart attack. She's unable to pursue litigation at this time, and they really don't know what direction it's going to go. But basically they've been put in a situation where they have to take legal action in order to get their own land back.

    Mr. ACKERSON. May I add two other comments that may be relevant there?

    First, I would expect that there would be situations you could find in some States in which both the landowners and the railroads are simultaneously paying tax on the property. And after abandonment, then I would expect that the process would be the landowners would continue paying. In some cases the railroads, through inadvertence or design—it could be either—have continued paying taxes after abandonment. So there is a mix there.

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    The other question is whether a trails group is entitled to non-tax treatment to be exempt from property tax on this trail land, and that issue has been addressed also in a number of States.

    Mrs. KELLY. Thank you. A number of the witnesses today have mentioned in their statements that the explicitly-stated purpose of the Rails to Trails Act, the ultimate reuse of abandoned rail corridors, is being virtually ignored and substantially impeded by the way the law is currently administered.

    Do any of your organizations have a position on whether Congress should act beyond the property compensation issue to promote and foster the actual reuse of rail bank trails for active rail service?

    We've talked about it a little bit. I would like to have some positive or negative statements on the record.

    Mr. WELSH. Well, I live on the one that we had the big picture on. That was not a picture of my home, but we have something similar to that.

    Back to your tax statement—I'll get to that—we pay taxes on our square footage along the lake, and the railroad pays what they call ''unit tax.'' As Mr. Ackerson said, they pay so much per mile per year for an operating use, much like most utilities do.

    For over a century, the property owner has been paying taxes also on it. That has never been adjudicated in the State of Washington, and I really don't know. We were told that that's a function of your assessed—take it up with the assessor. That's never happened.
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    As to your other question, we were the—I could guarantee you the 500 property owners along our lake love the railroad. They're nice. They may have taken a few dogs' legs off over a period of years, but they've never gotten any children, they've never gotten any adults or hit any cars or anything else, so we personally would love a railroad. How they put it back together, I believe the short line's associations idea is correct. It goes along with my testimony that this whole thing appears to be a scam because it really is a detriment to actually going back with a railroad.

    I would have no problem with legislation—particularly legislation, rather than rule-makings—to do just that.

    Mrs. KELLY. Anybody else want to say anything?

    Mr. PETERSON. I think one other issue that needs to be addressed on this is the fact that a lot of the abandonments that took place back in the 1970s and even earlier, we're finding that a lot of the trail groups that are coming on board now are using the new Federal regulations as a basis for developing these old trails.

    In our case, we just had a public hearing on Monday that was with our assemblymen and New York State DOT that clarified the fact that New York State DOT, itself, was focusing on the fact they had Federal mandates that were requiring that they cooperated for the purposes of developing these trails.

    So there is a lot of misrepresentation of what is really going on out there that people do not fully understand.
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    Ms. GLOSEMEYER. I'd like to make a comment there also.

    If rail banking is going to be the disguise that you use to take my land, yes, I would like to know that that really is going to be the intent of the law and that there are means of making it revert back.

    And if I have to have my land taken for a purpose other than what I granted it for, I would like to know that it's not an open-ended type thing. I don't want to pass my farm on to my kids thinking that their whole life is going to be spent with a trail and not truly rail banking.

    I think there needs to be an end in site for relief to a landowner if there's no compensation, if I just have my land stolen from me. Give me something.

    The other thing is, in Missouri I had a group—just in contacting and talking with people, there was another railroad that was applying for abandonment and there was a group wanting to put a railroad back on there, and they have had to fight tooth and nail in order to keep that rail corridor a rail corridor. For some reason, trail importance became more the topic than letting it be maintained, used as a real railroad.

    Mr. ACKERSON. A quick response.

    Many of the persons with whom I've been working would like to see their communities—their rural communities, in particular—benefit from restored rail service, and some in urban communities would much prefer to see a commuter rail than other uses of the land.
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    So yes, there are many people who would like to see a fixed and clear and predictable way in which railroading can be restored.

    Mrs. KELLY. Thank you very much.

    At this time, because I have to be present at another hearing, I am going to turn this Chair over to Mr. Wise to conclude the questioning with this panel. The panel will then adjourn until Mr. Bachus comes back. At that time we will continue.

    Thank you.

    Mr. WISE [assuming Chair]. The gentleman from Minnesota?

    Mr. OBERSTAR. Thank you, Madam Chair and Mr. Chairman.

    Mr. Ackerson, following up on your last and Ms. Glosemeyer's last comments that there is not an established system of procedures for reinstating rail service on a line that has been rail banked, we have at least two ICC decisions—one rendered in 1990 and one in 1993—that vacated notices and certificates of interim trail use so that new rail lines could be built. One deals with the former Iowa Southern Railroad Company Line under a petition by Iowa Power Company, and the other was Norfolk and Western Railway Company in Ohio.

    If reconversions occurred in at least those two cases, why is there a problem with the Surface Transportation Board procedure?
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    Mr. ACKERSON. Well, I suspect that the witness who is testifying on behalf of the Short Line Association might be able to give you a much more sophisticated response, because I was not involved in either of those two proceedings, but what I am aware of, from my dealings with the Surface Transportation Board and with a number of my clients who have asked that question with respect to future plans, is that neither the statute nor any body of regulations is specifically directed to the reinstatement of rail service on rail-banked land.

    It is my understanding that the same process must be taken as to get a certificate of convenience and necessity for a new line on that land, which would seem to be inconsistent with the purpose of allowing rail service to rather expeditiously be restored.

    What I'm suggesting is there ought to be a clear system that would make it easy for people to understand and make it rather convenient to do.

    Mr. OBERSTAR. I'm not sure that—what you're saying is somewhat speculative, but there is a procedure that was followed in at least two cases. There are some 17 other cases that are proposed or in some state of coming to be.

    You haven't set forth a specific shortcoming.

    Mr. ACKERSON. I'd be happy to do that.

    Mr. OBERSTAR. Yes.
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    Mr. ACKERSON. I think the shortcoming is—

    Mr. OBERSTAR. That's what I'm asking.

    Mr. ACKERSON. —a person should not have to create the law through case-by-case adjudication as to how and under what circumstances rail service can be restored on rail-banked land.

    It would be far preferable for a rule-making proceeding to be followed by the Surface Transportation Board to establish a system that everyone would know how to follow, rather than wait for case-by-case adjudication to develop.

    I think it would be more efficient for all parties and it certainly would be more consistent with the underlying premise of rail banking, and that is to preserve rail use for the future rather than saying rail use may be available in the future but come back and prove it has to be done all over again.

    I think that's my answer. It would be much more efficient that way.

    Mr. OBERSTAR. Well, there is precedent and there is practice and I think, following our system of jurisprudence, which is on a case-by-case basis, I think the tendency is to establish precedents and then follow them and apply them equitably.

    Mr. ACKERSON. It would employ a lot more lawyers. I would agree with that.
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    Mr. OBERSTAR. Well, ultimately these are matters of law and anything affecting real estate is rooted deeply in law, going back to the 14th century England.

    Mr. WELSH. Representative Oberstar, I could give you a little bit of insight on those two instances, I believe.

    The first one in Iowa was—

    Mr. OBERSTAR. Are you addressing procedure or process?

    Mr. WELSH. Well, that particular one—I believe both of them—the second one I was faintly involved with. The first one I was. The first one was never actually installed as a trail. I believe the rails were actually still in place when the STB or ICC at that time revoked the NITU or CITU as it was in that particular instance.

    And I believe the one in Ohio was of the same instance, but I do not know if the rails had been replaced or pulled up at the time, but I know the trail had not been installed.

    I think the talk was—

    Mr. OBERSTAR. Whether a trail was installed or not is not as important as that there was a process in place to be followed and Mr. Ackerson's objection is that there isn't a uniform set of policies. We'll look into that and develop that issue further.
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    You also, Mr. Ackerson, addressed the need for notification of property owners. Whose role should that be? Is that—you're suggesting that it should be the Surface Transportation Board that should notify property owners?

    Mr. ACKERSON. That would not be my suggestion. My suggestion is that the railroads, upon abandonment, be required to give notice to the property owners. They have the records of what they own and they would be in a good position, in the course of an abandonment proceeding, to give notice to the property owners that that abandonment proceeding is going forward and, if appropriate, to give notice that there may be consideration of a rails to trails proposal on the line.

    The railroads already have to disclose environmental and other affects, and they do disclose the nature of their land ownership to the Surface Transportation Board in the context of an abandonment proceeding.

    So I think it would be a—

    Mr. OBERSTAR. Who should enforce such a requirement on railroads?

    Mr. ACKERSON. I would think the Surface Transportation Board should enforce such a requirement.

    Mr. OBERSTAR. They should then receive—''they,'' the board, should receive from the railroads a list of property owners so they also can follow up and see whether proper notification is being given? Is that right?
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    Mr. ACKERSON. I haven't thought through to the detail as to who really ought to stamp the letter and send it out, whether it ought to come from the Surface Transportation Board or directly from the railroad under that supervision, and I don't really have an opinion, based on my present thinking about that. I would suspect that either method would work so long as it's supervised by the regulator.

    Mr. OBERSTAR. We'll proceed on that score and follow up on that with the Surface Transportation Board.

    Mr. Welsh, I was intrigued by your comment that the railroad right-of-way has been turned, by the railroads, into a linear toxic waste dump. What do you mean by that?

    Mr. WELSH. Well, the railroads have, for over 100 years, used many herbicides and such to kill the weeds along the railroad rights-of-way, and it usually takes around ten years for the weeds to regrow.

    Back before Agent Orange, or whatever the terminology for it is correct, the railroads used to spray the right-of-ways with that up until the 1950s. That has a half life of around—

    Mr. OBERSTAR. Presumably that would also be on property owned by non-railroad interests and on which the railroads have an easement; is that right?

    Mr. WELSH. That's true. They have control of the whole right-of-way sometimes, which is 400 feet wide. They only normally spray five, six feet—whatever a spray boom off the train will spray off. But it does—they do the same thing today, but they don't use long-term herbicides that have long half-lives. Most of the—I believe Agent Orange had a half life of 10 to 12 years.
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    Mr. OBERSTAR. Have any of your members or has your association sued the railroads for toxic substances dumped on them?

    Mr. WELSH. They haven't had to. The superfund folks at the EPA have done the thing for them—one particular one in Wallace, Idaho, which is now a superfund site; one in Park City, Utah, which did not become a superfund site but was the end of—Indian Pacific had big lead smelters—excuse me, they didn't own the smelters but they transported it for 70 years.

    And Indiana—a case Mr. Ackerson might have been on—was an old electric railroad where they had, every quarter of a mile, underground vaults of PCB transformers to run the electric railroad, which, when they de-electrified in the 1950s, I believe, or 1940s, they left all this underground.

    It was property owners that brought this to the attention, I believe, to the county or to the Indiana State EPA to make the railroads clean it up. In that particular instance the railroads cleaned it up.

    Mr. OBERSTAR. Taking that issue a little further—and that's very enlightening about PCBs—you suggest a lack of review under the National Environmental Policy Act as a problem in conversion of railroad grade beds to trails. Are you suggesting that an EIS should be done very time that railroad property is converted to a trail?

    Mr. WELSH. Something—yes. That would be my—normally some of these projects, like Ms. Glosemeyer's, was 200 miles long, went through numerous wetlands—and a lot of these railroads actually go through wetlands, wildlife habitat. There's one in Washington that goes through a national wildlife habitat—that's not the correct—Trumbel—I forget what the last part of the letters is.
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    But there is no review because of the—particularly when ISTEA funds are used, because there is a categorical exemption under 23-771 to exclude bicycle and pedestrian trails. It has been on the books for quite a few years, and they're using that, particularly with ISTEA funds. When normally you would think NEPA would kick in, it's excluded.

    Mr. OBERSTAR. But an EIS is not required while the railroad is operating the line for railroad purposes. Why—I don't understand why you would want to have an EIS undertaken when the railroad grade bed is converted to another transportation use that is non-polluting.

    Mr. WELSH. Maybe non-polluting in your estimation, but the case in point I can remember was the railroad didn't seem to affect bald eagles on one particular railroad right-of-way while the railroad was operating, but they wanted to put a trail in there and some biologists said that the people and the bicyclists and the roller bladers and the noise that would be there 12 months of the year would be more of a detriment than the railroad would be.

    And, besides that, railroads have been there long before we had environmental impact statements, much like homes, subdivisions that have been in place. Just because they want to build a new house, they don't put—a new house, they don't do an EIS.

    But this is a completely new use and should be looked at.

    Mr. OBERSTAR. It may be a new use, but it's not a polluting use.
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    Mr. ACKERSON. May I add just one comment on that, based from an experience that I had?

    There is a trail that was proposed in Monroe County, Indiana, in the area of the land quarries. It was to be called ''Limestone Country Trail.'' It's beautiful country and I'm sure it would have made a beautiful trail.

    The land is the land from which most of the limestone on the buildings in this city have come, as a matter of fact, and the line was created to serve those quarries.

    The proposed trail passed right at the edge of a number of the quarries. The owners of those quarries were terrified of the exposure that that presented to the person who would be on those trails with their families on a weekend and a kid running off to the side of the trail and falling in to a deep pit halfway full of water.

    There also were, at the bottom of many of those quarries, the equipment that, as of 30 or 40 years ago, once the quarry was fully mined, was simply left there with all of its toxins in it. So it's unclear what was in that water.

    And it's also—and along part of that line there was a rather dramatic expose in one of the local papers about a site of toxins being found and a great concern of what would happen if kids on that hike or on that trail or families happened to stumble into that area knowing nothing about it until symptoms arose a few weeks later.

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    Now, I'm not suggesting by any means—please don't get this wrong—that every trail has that kind of a problem. Some do and some don't. But I think there is a reason to look afresh at the environmental issue when the new use is employed.

    Mr. OBERSTAR. One final observation—

    Mr. WELSH. EIS, as far as I know—

    Mr. OBERSTAR. —that I want to make, Mr. Welsh.

    We have two local officials testifying—the mayor of Columbia, Missouri and Jan Wolcott, the director of Parks and Recreation Department in Washington—and I know you're a very vigorous advocate for your organization, for property rights owners, but you take a very dim view of these folks in a letter that you wrote in March, 1988, saying that ''The other side''—meaning the advocates for land use—''is used to stringing you out and wearing you down. They teach that tactic in the colleges now for these socialists that permeate the State and county jobs.''

    Did you really mean to suggest that State and county offices are permeated with socialists? Is that—

    Mr. WELSH. Well, it may be hyperbole. In these two instances I don't believe it is, and the overall effect is it—I mean, if the other side, ''our opposition,'' if you want to call it that, Representative, use the same tactics.

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    Our people have—

    Mr. OBERSTAR. I don't think they call you Fascists.

    Mr. WELSH. Pardon?

    Mr. OBERSTAR. I don't think they call you Fascists, and that's the opposite of socialists. So I think that kind of language is inappropriate to rational discussion of these issues.

    Mr. WELSH. Well, I think some of our Presidents used language in their younger days, also, that they probably might not want to use today.

    Mr. OBERSTAR. We're not talking about Presidents. We're talking about an issue—it's a very important matter, and it's important to take the emotion out of these issues and to talk about them in a rational fashion. You can't have rational discussion if you're characterizing people in ways that incite very negative and hard feelings.

    Mr. WELSH. Well, be that as it may, that statement was made eight years ago. I'm sure—you seem to be privy to my other statements, and you don't see that type of hyperbole any more.

    Mr. OBERSTAR. I just asked to clarify it to see whether you still feel that way.

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    Mr. WELSH. I hope I did for you. Thank you.

    Mr. WISE. I appreciate the gentleman.

    At this point, pursuant to the order of the Chair, unless—there are not other questions on this side—pursuant to the order of the Chair, the committee will stand in recess until Mr. Bachus returns, or another Member of the majority.

    [Recess.]

    Mr. BACHUS [resuming Chair]. I call the committee back into session, or back into this hearing.

    If the third panel will make their way forward, the third panel is made up of Ms. Andrea Ferster, Mr. Jan Wolcott, Mr. Palmer Brown, and Mayor Darwin Hindman. Also Mr. Charles—is it Montange?

    Mr. MONTANGE. That's correct, sir.

    Mr. BACHUS. I believe—have you written an article in ''Trains Magazine'' before?

    Mr. MONTANGE. I've written many articles, so there may have been one in ''Trains Magazine.''

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    Mr. BACHUS. Yes. I've read some of your articles. I'm a train buff—about the Stampede Pass?

    Mr. MONTANGE. Yes.

    Mr. BACHUS. Is that right? I've enjoyed that. That's an intriguing situation.

    Mr. Tate is going to make a special introduction in a minute, but we'll go ahead, and then when he gets here I want to allow him to say a few remarks.

    Have you all agreed on an order of speaking?

    Mr. WOLCOTT. Yes, we have.

    Mr. BACHUS. Okay. What we'll do is, as each of you gives your testimony, if you want to introduce yourselves then.

    Mr. Tate, I'm going recognize you at this time, a member of the full committee, and we're honored to have you with us. I think you have somebody special you want to introduce to the committee.

    Mr. TATE. Yes. Absolutely. Thank you, Mr. Chairman. I appreciate your allowing me to sit in on your subcommittee meeting.

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    We do have a very, very special guest—someone that I've known for quite some time. The people of Pierce County, the county in which I reside, and I have known January for over 20 years as a dedicated public servant in the Pierce County park system, and for the last 11 years he has been the director of Pierce County Parks and Recreation, and this past year was recognized by the National Trail Association as the public employee service award of the year for his efforts on trails. He has been real active in Pierce County with the rails to trails linear trail.

    I see him as one of the foremost authorities in the country on this particular issue. He lives, eats, and breathes the trail issue, let me tell you.

    But at our house I call him Mr. Wolcott. My wife calls him ''Father,'' and my daughter calls him ''Papa.'' He's my father-in-law. I really appreciate the fact that January took the time to come all the way back to Washington, D.C., and I think those that serve on the committee are going to hear from a real expert on this issue from a local perspective, which is important back here in the other Washington.

    So, with that, I'd yield back my time. I appropriate the chairman allowing me to introduce January Wolcott, director, Pierce County Parks and Recreation, from the great State of Washington.

    Mr. WOLCOTT. Thank you, Randy.

    Mr. BACHUS. I appreciate that. That would be your son-in-law, is that right? Your son-in-law, as a freshman, sponsored some pretty important legislation on hydroelectric power that actually made it through the Congress. That's quite an accomplishment, and we're very proud to have him representing the State of Washington on the committee and in this Congress.
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    Mr. WOLCOTT. Needless to say, I'm proud to claim him as my son-in-law, even though early in our relationship he had a habit of sleeping on my couch all the time.

    Mr. BACHUS. I won't touch that.

    [Laughter.]

    Mr. BACHUS. I did want to say the groups you all are representing. I mentioned, Mayor Hindman, that you're the mayor of Columbia. Mr. Brown is the president of Rails-to-Trails of Blair County, Pennsylvania. Mr. Wolcott is the director of the Pierce County Parks and Recreational Board in Tacoma, Washington, and he's accompanied by Mr. Charles Montange from Seattle, Washington. And Ms. Andrew Ferster is general counsel of the Rails-to-Trails Conservancy, and we're honored to have you all here today.

TESTIMONY OF ANDREA FERSTER, GENERAL COUNSEL, RAILS-TO-TRAILS CONSERVANCY; JAN WOLCOTT, DIRECTOR, PIERCE COUNTY PARKS AND RECREATION, TACOMA, WA, ACCOMPANIED BY CHARLES MONTANGE, ESQUIRE, SEATTLE, WA; PALMER BROWN, PRESIDENT, RAILS-TO-TRAILS CENTRAL PENNSYLVANIA; AND HON. DARWIN HINDMAN, MAYOR, COLUMBIA, MO

    Mayor HINDMAN. Thank you very much. It's a pleasure for me to be here. I'm honored to have the opportunity to be here.

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    As you said, I am the mayor of Columbia, Missouri. Columbia is a city of about 75,000 people located directly between St. Louis and Kansas City. We are on Interstate 70, and we're the home of the University of Missouri—and we won't discuss football right now, but we ar the home of the University of Missouri, we're home of Stevens College and Columbia College. I'll throw in a little boosterism—it's a fine city in which to live. It has been in the top 20 of many magazine city choices of places to live for the last five years.

    I'm proud to be here representing actually no one but myself as far as this testimony is concerned, but thank you.

    I'll read from my prepared testimony.

    Two railroad corridors were established along the Missouri River, the Missouri Pacific on the south and the Missouri, Kansas, and Texas, commonly known as the Katy, on the north.

    New towns sprouted, old river towns prospered. The towns' economies soon depended on the transportation up and down those railroad corridors.

    About 1984 the Katy agreed to merge with the Missouri Pacific. That resulted in two parallel lines along the Missouri River. The Katy decided to abandon its line.

    When the Katy abandoned a line, its usual process was to quick claim the easements to adjoining landowners and sell its fee interests, which resulted in destroying the corridor. This time, however, the Katy management decided that the 199.9-mile corridor kept whole would better serve the State of Missouri.
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    The railroad could not afford to hold it and preserve it, so it decided to offer the whole corridor to the State. The State was contacted and told the railroad about rail banking. The corridor could be saved for public transportation use, and the users, not the railroad, would pay the cost of preserving the corridor.

    The railroad agreed to cooperate with the State, but the State needed to request the ICC to issue a certificate of interim trail use.

    Support and opposition organized and lobbied the governor, who was Governor Ashcroft—now Senator John Ashcroft from Missouri.

    The railroad delayed applying for abandonment, but every day that it waited it cost the railroad money. Stockholders began to grumble.

    Finally, on August 26, 1986, the Katy could wait no longer and filed its application for abandonment. The state had only 30 days in which to act under the processes. Many of Governor Ashcroft's supporters opposed the trail and pressured him, but he decided that rail banking and preservation of that corridor was in the State's best interest and authorized the Department of Natural Resources to request the certificate of interim trail use.

    The State then had 180 days to reach an agreement with the Katy Railroad. Governor Ashcroft had to approve the agreement.

    He favored the trail and the rail banking, but he wanted an appropriation from the legislature. An interim legislative committee was formed, well over 100 citizens testified, pro and con, and more than 10,000 proponents of the trail and rail banking signed petitions.
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    Ted Jones, who was then head of the Edward D. Jones Company, a stock brokerage firm, gave $100,000 to the State for the trail.

    By a close vote, the legislature passed the needed appropriation.

    Opponents then sued, claiming that rail banking was unconstitutional. The State defended the lawsuit. The railroad at that time could easily have walked away from the situation but stuck with it, hired its own lawyers to help defend the lawsuit.

    The Supreme Court of the United States unanimously held that the rail banking law was, in fact, Constitutional.

    After the suit was over, Governor Ashcroft authorized the DNR to acquire the corridor, saying that it was a great asset to the State of Missouri.

    Ted Jones then gave the remaining $100,000 that was needed to purchase the corridor. So, as it ended up, it was purchased entirely with donated money.

    Rail banking works. It worked in the case of the Katy. It preserved the corridor for transportation use—for us today, transportation by bicycle and foot, and for future generations as they see fit.

    It is now the Katy Trail State Park. The State, not the railroad, pays for the cost of the preservation of this corridor. From 200,000 to 300,000 men, women, and children use the trail annually. It provides the highest possible quality family recreation today.
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    In the tradition of the railroad days, the local economies benefit from the transportation on the corridor. Restaurants, bed and breakfasts, bicycle liveries, wineries are popping up and succeeding because of the trail. Many small towns are thriving that otherwise probably would have gone down or even failed after the railroad left.

    Without rail banking the Katy Trail would not exist and the corridor would be lost.

    To make rail banking proponents find all possible owners and prove that there is no taking would involve expense and litigation that, in many cases, would be impossible politically and economically.

    When owners have legitimate taking claimed, under the present law they are entitled to be paid. The law of regulatory takings has been carefully and thoughtfully developed by the courts over the history of our country. I believe it should be left alone.

    The railroad easements were perpetual. Economic theory dictates that those who conveyed to the railroad received full value for the land that was involved. Today's owners generally have no investment-based expectations to the right-of-way. In my view—and this is my view—payment to most adjoining landowners would amount to paying for the land a second time and would be a windfall and basically unfair to the taxpayers.

    That's not true in every case, but I think it's true in many.

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    It is far better to have effective rail banking and to use the corridors for transportation than to destroy the corridors so that no transportation will be possible.

    I urge you to reauthorize ISTEA without changes to the rail bank.

    Those are my prepared remarks. I'd be happy to try and answer questions.

    Mr. BACHUS. Thank you.

    Mr. Brown or Mr. Wolcott?

    Mr. WOLCOTT. Actually, sir, we were going to follow a pre-described order.

    Mr. BACHUS. Sure.

    Mr. WOLCOTT. Good afternoon, Representative Bachus and committee members.

    Randy, thank you again for those generous words. I appreciate it very much.

    Once again, I work for Pierce County Parks and Recreation Department. Our county has just over 600,000 people, and we boast in our county that the highest peak there is called Mt. Ranier.
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    Since Pierce County, as an agency, is interested in providing public park and recreation opportunities to the residents of our community, we have a vital interest to ensure that the rail banking provisions remain in effect. Rail banking is good public policy.

    Pierce County is at the end of a ten-year struggle to acquire and develop an abandoned railroad corridor and convert it into a non-motorized linear park and trail. To accomplish this project, we have dealt with a wide array of complicating title problems and expensive, time-consuming judicial hearings and lawsuits.

    This project is a 25-mile railroad right-of-way which was abandoned by the BN Railroad Company back in 1986. The ties and rails were pulled by a salvage company at the same time.

    Immediately, 125 different adjacent property owners filed a succession of quiet title actions in an attempt to gain possession of the abandoned railroad property. Simultaneously, Pierce County began the planning process, including the local legislative requirements to establish a public park and trail.

    Many of those local adjacent property owners were excited to see our vision of a public trail and donated any interest that they might have in the railroad property to us with quick claim deeds.

    Our county council passed legislation approving our project after reviewing our master planning documents and the State-required environmental impact statement. Our counsel was encouraged by a coalition of groups and organizations representing walkers, joggers, bicycle riders, equestrians, many, many senior citizens, and the disabled.
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    An anti-trial group challenged our project with a public referendum. They told us that we should let the voters decide.

    The pro-trail coalitions in Pierce County worked tirelessly with a ''Save the Trail'' motto. The anti-trail group never mentioned the project in their campaign rhetoric. They simply misrepresented the issue by identifying the measure with a ''Stop Tax Waste'' theme.

    You, as elected officials, are certainly aware how such scare tactics and misrepresentations can alter election results.

    Nevertheless, our trail project prevailed and their referendum was defeated by the voters of our county. Even though the voters had spoken, the anti-trail faction continued their assault on our project.

    Despite enormous cost to our county in delays, interruptions, and court proceedings, I'm pleased to tell you that we are proceeding with our project and have begun construction and will continue that construction for the next two to three years.

    I should tell you also that we are succeeding, because our trail is a classic example of how a public/private partnership can work. Our trail supporters have raised over 400,000 through fund-raisers and private grants and foundations. Their dollars have been used to match money coming from our State's Washington wildlife recreation program, our county's conservation futures program, but, most notably, ISTEA. This project, through ISTEA, has received a total of eight separate awards.
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    Without rail banking, we have been compelled to wade through a myriad of title problems of all kinds. For example, we have encountered the original land claims or ''donation land claims,'' as they were called, in which the underlying fee owner kept the ownership and passed it on to their heirs.

    An example in our project is a family named Whitesell, who had 12 children and divided their property amongst the 12 children, none of whom are alive today. The problem is further complicated because the 12 children did not receive equal shares of property.

    To reconstruct their chain of title, we researched the lineage of over 100 different people from this family alone, including birth, marriage, and death certificates.

    Another problem is the case of Roeder versus Burlington Northern. In this case, when the Roeder Company sold off their business, they kept the land by accident under the railroad, similar to the DLC title problems. Once again, Pierce County is being required to reconstruct the entire chain of title before acquisition.

    Connected to the northern end of our present project is 5.2 miles of BN Railroad property which they have scheduled for abandonment. The intent to abandon notices have appeared in the local newspapers on two different occasions. We have entered into negotiations with Burlington Northern to rail bank this section. They have prepared in-house appraisals to determine value, and we are preparing an offer to purchase.

    The present us of the land along the railroad includes some residential, some industrial, but mostly agricultural. Also appearing along this corridor are several utility easements. Pierce County is very interested in preserving this corridor for continued public use.
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    The corridor is identified in our master trails system plan.

    We estimate that, without rail banking, this five-mile extension will take two years to acquire and increase the cost to the taxpayers of Pierce County by about 300 percent.

    As you can tell, we think rail banking is smart and proper legislation. I cannot honestly say to this committee that our primary motivation in preserving this corridor was for future rail use, as the statute under consideration foresees. Indeed, our immediate interest is in a trail, but we are keenly aware that the highest and best use of any corridor shifts and changes over the generations.

    Our children may need restored rail service. Our gift to ourselves has been to recreate this abandoned rail line as an extraordinary trail. Our responsibility to our future community has been to preserve this corridor for their needs, which may well include a return to rail service.

    Those needs are not ours to determine. We have done our job in preserving the corridor so that they may have options in their time.

    As my earlier testimony indicated, the burden upon us is in preserving this right-of-way, and it has been severe. Many communities faced with similar challenges are overwhelmed and do not have the resources, financial or political, to save their abandoned corridor. That is why rail banking is so desperately needed. If we are to preserve our rail corridor infrastructure, we must preserve rail banking.
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    For agencies like ourselves, a great deal is at stake here, including the dismantling of historic railroad corridors, increased staff time and involvement, and unimpacted rights-of-way for public utilities, and, of course, enormous expenditures of public funds.

    I urge you not to scrap the rail banking policies.

    Thank you very much for this opportunity to appear before you.

    Mr. BACHUS. Mr. Brown?

    Mr. BROWN. Good afternoon. I would like to thank the Chair and the members of this committee for allowing me to testify on this very important issue.

    My name is Palmer Brown. I am the president of Rails-to-Trails of Central Pennsylvania. That's a recent change. We were Rails-to-Trails of Blair County. We are a private, nonprofit group with over 550 members. We own, operate, and maintain the Lower Trail, an 11-mile rail trail in Blair and Huntingdon Counties of Central Pennsylvania. This corridor is not rail banked. We bought it fee simple with private funds. We now operate and maintain that trail, not costing the taxpayer a single cent.

    I also have a lot of blood, sweat, and toil in building that trail, but if the time came when our community needed that trail for rail transportation again, I'd be willing to give that up if that would benefit the economy of the area.

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    As I mentioned, prior to becoming the president of the group about two years ago I was the project manager responsible for the development of the trail. That included the planning, the design, the engineering, and overseeing the actual construction, which was handled by a construction company.

    Having been involved with so many aspects of trail building over the six-year period, I have a broad range of experience in trail building and operations.

    Also, since our trail was involved in a land dispute, I have experience in legal challenges faced with building a trail.

    Although I am not an attorney, I did much of the leg work—the title search, the deed work, surveying, etc.—in preparing our case for the eventual court hearing which we did have.

    In my testimony today I'd like to address two main points, one of those being the benefits of a rail trail, and the second one being the trials and tribulations of a dispute over the ownership of a trail corridor.

    Many of the benefits of a rail trail are very obvious. There's recreation, there's natural resource conservation, fresh air, exercise, and, of course, one I think is very important also—preserving the corridor for future use as a railroad again.

    However, some of the benefits that I have seen are less explicit—for example: education, community pride, heritage preservation, and economic growth.
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    There are a number of schools in our area that have used the trail as a non-traditional but very effective practical education resource where they've taught history, engineering, geology, forestry, ecology, and a number of other subjects on the trail. There are two local high schools that use the trail for their fitness training, both as part of their physical education program and for the basketball and cross country teams.

    Several corporations and businesses in the area have created employee wellness groups to encourage their employees to participate in active, healthy, fitness-enhancing recreation in their off time. They found this allows their employees to be more physically fit, mentally alert, less prone to injury, and better able to perform better on the job.

    The trail has also restored community pride. It has installed a sense of belonging and a renewed spirit to our local residents.

    Elderly residents 70 and 80 years old walk the trail each day. Families with small children use the trail with kids in the stroller, backpack, or bicycle seat. Teenagers bike the trail together, rather than spending the time in front of the TV or hanging out on the street corner with the gangs.

    While some people may think these benefits immaterial, one thing most people can relate to is the economic growth the trail has brought to the small communities along this path and nearby.

    The Lower Trail is located about ten miles from Altoona, a city once known as the Railroad Capital of the Nation. In the past, the railroad shops in Altoona and Hollidaysburg, provided direct employment for almost 7,000 people, and indirectly provided a means of livelihood for many thousands more; however, due to ''corporate downsizing,'' in today's vernacular, only about 600 to 800 people are employed by the railroads now, and you might say that the region is ''economically challenged.''
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    The area is mostly rural, with agriculture being the primary industry; however, tourism is the second-largest industry in our area and one that's growing at a rapid pace.

    The trail is a designated historic site, being part of the old Pennsylvania Canal, a historic transportation corridor, and we cooperate with a number of other agencies in the area to promote heritage tourism.

    There are a number of facts that I'm not going to go over as far as the actual monies. It's in my written testimony as the total income, the number of visitors. Over two million non-resident visitors come into that area of central Pennsylvania, where they have spent $83.5 million in the region over a five-year period. I also have some information on trails that's in my written testimony. I won't bother you with the details of that now.

    There are a number of businesses that have opened—a bed and breakfast—and that's also part of my testimony—opened specifically because the trail was there and they knew that they would do business. There are convenience stores, restaurants, gasoline situations, outdoor and sporting goods stores that have reported increase in income because of the trail.

    It has also been a boon to area bicycle rental and sales. I'm personally aware of a great number of bicycles—in fact, I stopped counting—that have been purchased simply because the trail was there. People wouldn't have bought them otherwise. Cannondale Bicycles built in the area start at about $2,000 apiece.
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    In summary, there's a multitude of benefits—recreational, educational, community pride, health, fitness, as well as economic stimulus—as a result of having a rail trail in the area.

    But, in spite of the benefits a rail trail can bring to an area, it takes only one person or small group of opponents to delay, block, or even kill a rail trail. We had one opponent in our area. He did, however, incite a bunch of other—a few others that became very aggressive and very vocal against the trail.

    Through his efforts, this individual was able to delay the project for almost two years. What should have been an 18-month to two-year project took over four years to complete. this cost us not only in terms of delay, but about $50,000 which, as a private, nonprofit group trying to raise money selling pencils on the corner with my tin can cup out there, we could ill afford to do. We were lucky that our attorney donated the money to us to take this thing.

    We did purchase the property in fee simple from Penn Central Properties. It was a straightforward land transaction, no strings attached.

    I've traced the title back on many of the properties through there all the way back to the original land grants to the landowners and traced how they sold it to the canal company and then to the Pennsylvania Railroad.

    Even though we had presented a preponderance of evidence to this individual and his numerous attorneys, including an intensive, in-depth title search by an independent attorney, a certified survey of the property by a registered land surveyor, we finally had to file a lawsuit in order to claim what was directly ours, owed to us—our proper ownership of the property.
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    In the early stages of the dispute, I believe the individual was convinced in his own mind that he did, in fact, own the land of have some claim to the land in question. Later, I think he realized that he didn't really own the land but persisted in his efforts simply to delay, frustrate, or attempt to stop the trail from being built.

    It came out in the court hearing that much of the individual's conviction that he owned the property was based on the point that he had a warranted deed to the property and the Rails-to-Trails had only a quick claim deed.

    The judge, in his findings and remarks, made it very clear that a quick claim deed was just as valid as any other deed.

    This individual went to great lengths to stop us from using the trail—cutting trees across it, plowed up three-quarters of a mile of the trail in a fit of anger, dumped manure on it, dumped dead animals on it—anything to stop us. And this is the type of person you're dealing with that has opposition to a trail.

    They were investigated by the police; however, the police decided this was not a criminal matter, it was a land dispute and, therefore, should be handled in civil court, so that's how we had to handle it.

    When we had our day in court, the judge, of course, ruled in our favor. He also commented there were only two issues were the litigants are so adamant, so bitter, and so acrimonious—one is in divorce proceedings and the other is in land dispute. I guess when it comes to ownership of property, passions run as high as love and marriage.
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    I bring this all up to show that if we change the rail banking statutes we are opening Pandora's box to the question of land ownership. We would fracture our communities, pitting neighbor against neighbor. Anyone and everyone who has the slightest claim or thought they may have some claim against the property on the corridor will be making those claims; some because they truly believe it, others just to cause problems. There probably are even some who have fully realized they have no claim that will make the claim anyhow, just to stop a trail.

    The current rail banking laws are working and working well. If it isn't broke, don't fix it.

    Thank you, sir.

    Mr. BACHUS. Thank you, Mr. Brown.

    Ms. FERSTER. Mr. Chairman and members of the subcommittee, thank you for the opportunity to appear before you today to discuss the Federal rail banking program.

    My name is Andrea Ferster and I'm the general counsel of the Rails-to-Trails Conservancy. The Rails-to-Trails Conservancy is a national nonprofit organization founded in 1985 for the purpose of preserving and converting rail corridors that are not currently needed for rail transportation into trails and other public uses.

    I have been asked to discuss some of the legal issues that have come up during the course of rails to trails conversions. My written statement addresses the legal issues involving the Constitutionality and interpretation of section 8.D of the National Trails Systems Act.
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    I would like to focus my testimony here today on the so-called property rights concerns raised by adjacent landowners, first in the context of non-rail-bank corridors and then in the context of challenges to rail-bank corridors.

    By way of background, section 8.D recognizes that there is a national transportation policy interest in preserving hard-to-replace railroad infrastructure. This interest justifies the current legal structure in which the adjudication of ''takings'' claims must take into account this national interest and is done in the U.S. court of Federal claims.

    There is no evidence that the claims court is any less efficient than State court in resolving such claims.

    Let me focus for a moment on State court quiet title litigation where historically property rights challenges to non-rail-bank corridors have been brought.

    It's worth noting that the outcome of the State court litigation more frequently than not favors the trail owner and the railroad and not the private adjacent landowner.

    In many cases, courts interpreting century-old deeds, such as in the case of Mr. Brown's corridor, found that the railroad owned a fee rather than an easement interest that could be freely conveyed for trail use because no reversionary interest existed to begin with.

    I note for the record that the Ontario Pathways corridor referred to by Mr. Peterson was a non-rail-bank owner that was owned primarily in fee, as was the Lelinau Trail referred to by Mr. Ackerson.
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    Courts have also held that, even where the railroad held an easement interest, the easement often continues for the duration of any public highway use of the corridor, including trail use. In addition, many easement-held corridors, particularly in the west, are Federally-granted rights-of-way which can only revert to the Federal Government or another public agency on abandonment, and not to any private adjacent property owner.

    And, as Mr. Wolcott's testimony pointed out, if private reversionary interests exist, they do not necessarily belong to adjacent landowners, and they may be difficult or even impossible to identify.

    Our own research has shown that an insignificant portion of most railroad corridors would revert to adjacent landowners upon abandonment and conversion to rail trails.

    It's also important to note that, in fact, most rails to trails conversions do take place without controversy or without litigation, but, nonetheless, the fear of this quiet title litigation, with its attendant delays in costs, was originally a significant disincentive to public agencies making an investment in a rail trail, and that is why Congress passed section 8.D, which removed this obstacle to interim trail managers assuming responsibility for rail corridors until they're needed for future rail service.

    Now, the charge has frequently been raised that section 8.D ''takes'' the property rights of reversionary owners without compensation, in violation of the Fifth Amendment to the U.S. Constitution. However, it is far more complex than the adjacent landowners seek to portray it.
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    While the courts have not yet fully resolved the analytical framework for evaluating these takings claims, it is clear that claimants must do some heavy lifting to demonstrate that they have a property interest under State law at all, much less that the property interest has been taken by section 8.D.

    It is also clear that this issue is one that can only be resolved on the facts and circumstances of each individual case. Since the answer depends on the specific nature of the property interest acquired by the railroad, the treatment of that interest under State law, the regulatory framework in effect at the time the present claimant acquired the purported property interest, and other fact-specific inquiries.

    For that reason, global statements made by opponents of section 8.D that the law takes private property without compensation are inaccurate and evidence of fundamental misunderstanding of the legal standards for evaluating takings claims. Instead, the only true statement that can be made is that thus far no court has ever held that section 8.D takes private property.

    In any event, the only appropriate and accurate method for resolving this question is through the courts on a case-by-case basis, and any proposals to legislatively circumvent the present adjudicatory process will, in effect, give special rights to many persons who, in fact, possess no property interest in the corridor whatsoever at the expense of the rights of the true owners of the corridor, such as Mr. Brown.

    The result will be to create an unrealistic expectation on behalf of adjacent landowners and increase costly and time-consuming litigation that ultimately serves no one's interest except possibly the lawyers involved, and least of all the public's interest in preserving our Nation's rail corridor system.
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    I'd like to just respond to one point that was raised by the earlier panel, and that is to take issue with assertions that landowners do not receive adequate notification of rail banking orders by the Surface Transportation Board.

    Currently, rail abandonments are, in fact, widely publicized through newspaper notice, as well as required notifications of State agencies, and this notification includes the possibility that rail banking requests may be proposed and rail banking orders may be issued.

    Adjacent property owners who are concerned and interested in the corridor can receive an individualized notification from the Surface Transportation Board of any rail banking order simply by requesting to be provided with this notification from the Surface Transportation Board.

    For that reason, proposals that would require special notification of rail banking requests or orders to adjacent landowners beyond what is currently provided would simply impose huge costs on interim trail managers, the railroad, or the Federal Government.

    Rather, we believe the current process is fair to all stake holders, while, at the same time, allowing the statute to serve its intended purpose of preserving rail corridors for future rail service.

    I would be happy to answer any questions the subcommittee may have.

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    Thank you.

    Mr. BACHUS. Thank you.

    First of all, let me say this: Mr. Brown, your situation is really quite different from the other panelists.

    Mr. BROWN. Yes, sir.

    Mr. BACHUS. Because we're talking about a fee simple property transaction where Penn Central owned the land and they sold it to a real estate company and the real estate company—

    Mr. BROWN. The idea behind my testimony is that—

    Mr. BACHUS. That litigation causes problems.

    Mr. BROWN. —even corridors that are not rail banked, if there is opposition to it, how that can delay, the money cost involved in that, how it can stop something that's really good for the community.

    Now, if we change the rail banking statutes, that opens it up to claims by anybody. Now, whether they have an interest or not, when they may have a valid interest, they may not, but it's going to open it up to anybody who wants to make a claim to say ''I own that.''

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    I grew up on a farm that has a railroad running about 100 yards from the house. I didn't need an alarm clock in the morning because there was a grade crossing there. It woke me up when the train blew the whistle—the old steam engine.

    I now have that farm. I know that railroad does not belong to me. I never thought it did.

    But there are people—my neighbors who say, ''That railroad now belongs to me, since it's abandoned.''

    Mr. BACHUS. But, I guess what I'm saying—and Ms. Ferster said the facts and circumstances of each individual case, I mean, they're—legal title or not—I guess I'm just saying that in your case I think we are talking about a different situation than what is presented in a lot of other cases.

    Mr. BROWN. Yes, sir.

    Mr. BACHUS. Let me just give you an example.

    I'm giving everyone that testified the benefit of the doubt that they're telling the truth, and I believe that to be the case, and Ms. Glosemeyer said that her ancestor conveyed this property, gave a railroad the right to run a railroad through there for as long as they ran a railroad and for no other purpose.

    Now, that would be a different situation.
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    Mr. BROWN. I have investigated three other—

    Mr. BACHUS. I understand that you—I read your testimony, and maybe in that area of Pennsylvania—I'm saying maybe, even if you investigated ten, but that wouldn't exclude her situation.

    Do you see what I'm saying?

    Mr. BROWN. That's correct, sir.

    Mr. BACHUS. Now, I guess what I'm—let me just throw this out to the panelists. I want to invite your remarks.

    Now, here is what I've heard from this panel—and let me say this: I very much, first of all, I see a public interest and I see a public benefit in trails. In fact, I think some of the property owners on the panel before you saw those same benefits. I mean, we can all envision the benefit. The mayor pointed out, I think very well, what a trail can do for the general public.

    It's like a super highway. It's like a transmission line. It's like anything else. There is a benefit there, demonstrable.

    Now, the fact that there's a benefit, just like if it were a road to be built, just the fact you demonstrated the need for it wouldn't justify you violating property rights. There ought to be a way to do it, but there ought to be compensation.
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    First of all, there is a public interest. We'll all agree on that—public benefit.

    We have the argument that before there were trains and now there are people, it's a trail, and that—I think we all agree there's a difference. There are different problems. I mean, it is a different use. Running a train and people walking along it are different problems.

    I might actually say I'd rather have people than trains, but until I had a trail that either had people or trains I probably wouldn't be qualified to make that decision.

    Let's just say there is a difference. We agree on that?

    Mr. BROWN. Yes, sir.

    Mr. BACHUS. And then I will—you know, we've had litigation and some of the litigation has said that it's okay to do what has been done; that there's no taking or that there is no need to compensate.

    But now I would say that what that does, that's just like civil rights laws before they started saying it was wrong. I mean, up until 1861, I guess, we didn't have—slavery was probably—it was okay.

    I mean, the fact that no court decisions have said to date that it's wrong—in fact, the Congress—one reason that I think the court decisions are saying this is okay is they're saying Congress has permitted this.
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    Do you see what I'm saying? I mean, they cite Federal legislation for saying it's okay to take this property.

    So we have sort of created some of those court decisions that said it's okay to do it or because of legislation that this Congress may have passed.

    Mr. MONTANGE. Mr. Bachus, if I might respond partially to a couple of your comments.

    Mr. BACHUS. Yes.

    Mr. MONTANGE. I think that brave men and women can differ on whether a trail is fundamentally different from a railroad. The question turns on whether it's public highway, really, and under the laws of many States—perhaps most States, perhaps all States—railroads, highways that motor cars run on, and sidewalks that people ride bicycles or walk on are all considered public highways because they are ways open to the public.

    Some of them may have restrictions on use. Some of them there may be a charge or a fee to use, like a public toll road or a private railroad that charges basically a toll, but they're all public highways.

    The law has generally been that the easements are interchangeable, transportation easements can be interchanged so you can upgrade or change a transportation use.

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    If there is additional compensation due for the taking, it would be because an additional burden is imposed.

    So we're kind of mixing some ideas together.

    Then the question would turn on whether—

    Mr. BACHUS. Of course, now, some of that we changed, this Congress changed, and when they say that's so they cite our—

    Mr. MONTANGE. Correct. Now, to some extent I see your point. Congress may have an influence here because Congress has recognized, through section 8.D, that, as we, as a Nation, have decided to free up the abandonment process and tolerate more abandonments, and as the short line railroad people recognize, there is a bleeding then of our rail infrastructure.

    Congress, nonetheless, recognized that these were important assets and said, ''Look, for our transportation—although we're changing the policy, because we don't want to bankrupt current carriers and we're going to lose corridors as a result, we're going to do what we can to preserve those corridors for the future. And if there's somebody that's willing to step in to manage those corridors in the public interest to keep them intact for possible future use, we'll try to encourage that.

    And the way they are encouraging it—Congress elected to encourage it through the 1983 amendments, the Trails Act—is by saying to that trail manager, ''You can make a transportation use out of it that we feel is broadly compatible with the rail use; namely, it's a corridor kind of use, a low-impact use.'' Usually trails are fairly low impact. Their footprint is as small as the railroad's.
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    And that will be on the corridor, and we'll get the trail manager, some park agency, to bear the cost of maintaining this so current rail shippers don't have to maintain it for the future and so the railroad doesn't have to maintain it for the future. It's not a burden to them.

    In fact, the adjacent landowner doesn't have to maintain it for the future, either, so it's of benefit for them. If there's toxic waste on the corridor, it's going to be a matter between the park manager and his gods or her gods.

    So everyone in—there are some compromises, as there are in any public policy situation, but the compromise here is to preserve this corridor for the future so these short lines—Burlington Northern, on the Stampede Pass, or whoever—can restart service when it may be needed.

    Mr. BACHUS. I understand that. Let me say this to you: clearly Congress has said there is a benefit for preserving these corridors. I mean, clearly that has happened.

    I guess what I'm saying is that doesn't exclude that Congress either didn't anticipate or should have provided for compensation in cases where these people had a legal reversionary right.

    And I did hear an argument that it would cost too much if we did that, but, you know, I'm not sure that's a legal argument. I'm not sure that—I think maybe what we were saying there is if—let me turn that around and say that, if I were arguing for property rights, I would say that if it's important enough to be used as a trail it's important enough to pay for it.
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    Do you see what I'm saying?

    Mr. MONTANGE. Mr. Chairman, others may have another comment, but I think that the point is not so much that there is a disacknowledgement of an interest in paying, but there is a feeling among those of us—at least many of us on our side of the fence that the situation is relatively rare where the imposition of a rail bank corridor would constitute a taking, because there is still an active railroad interest, Federal transportation interest, in maintaining that corridor.

    Mr. BACHUS. You know what? I guess—

    Mr. MONTANGE. And we need to identify, then, the instances efficiently where there may still be compensation due. Otherwise, you destroy the utility of the statute by burdening us with a—

    Mr. BACHUS. I think you've raised an interesting point. I think even early on I tried to make a distinction between a rail line that there is some legitimate reason to believe it could be used in the future for commuter traffic—those type lines—and a lot of lines that no one could make a valid argument that it would ever be used. I mean, it's a fiction that it's going to be used later on as a rail line.

    An example of that, I would think this Katy line is probably just not going to—not realistically ever going to be used as a rail line, nor does anyone think it is.

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    Mr. MONTANGE. Mr. Chairman, when the Milwaukee road corridor was abandoned in bankruptcy—

    Mr. BACHUS. I understand that—

    Mr. MONTANGE. The 100 miles that is being looked at for restarting probably—it's in the middle of the Washington Desert and—

    Mr. BACHUS. But, you know, aren't the trails people arguing that they shouldn't give it back?

    Mr. MONTANGE. Actually, the thing is not rail banked. It was purchased by the State and it's signed to their Conservation Department. The Conservation Department is into wildlife corridor management, and they'd just as soon probably keep everyone off of there.

    Mr. BACHUS. Right.

    Mr. MONTANGE. But that's one of the problems. And if you want me to take the opportunity, I can go into that in more detail and read you a letter in which Washington State Department of Transportation states, for the record, that they would infinitely have preferred that that corridor had been rail banked to obviate that kind of problem.

    Mr. BACHUS. Sure. I agree.

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    Let's take a case where clearly legally the property owner granted an easement—not the fee simple cases. And let's take a case where there is very little legitimate argument that this is being rail banked for future rail use.

    In those cases, why not compensation?

    Now, I understand one argument is that it might cost too much. It might actually make these not feasible. But I don't think that's an argument that we assert against property. I mean, we don't say that we're going to build an interstate and we're not going to pay for the land because we'd never build it.

    Mr. BROWN. Mr. Chairman, I don't have the answers. I would defer to my more-learned attorneys to answer these things, but I have a question. Who pays and to whom was it paid?

    Mr. BACHUS. What is that?

    Mr. BROWN. Who pays, and to whom is it paid? Does the Federal Government pay, the State government pay, the railroad pay? And is it paid to the current adjacent landowners? Is it paid to the heirs of the original ones who made the grant? Is it paid to the trail group?

    Mr. BACHUS. The easements go with the property, so whoever owns the property would be who would receive payment. I think that—

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    Mr. BROWN. And as far as preserving corridors for potential future rail use, I believe in that strongly because, coming from a railroad area, I've seen what the draw-down on railroads does. There's also some short line railroads operating there that are making a profit. They've expanded the airport, the local Blair County Altoona Airport. They've expanded the runway and the terminal, and so forth. And now they're looking at how do we get from the airport, which is some distance out, to the city.

    Mr. BACHUS. Let me say this—

    Mr. BROWN. There is a railroad running there, and I'm trying to encourage. I'm working with the MPO, working with the Planning Commission. Let's use that rail corridor as a way to do that.

    Mr. BACHUS. Exactly. I think we are—the thing that keeps coming back is that there are legitimate needs the use—I'll say this: the majority of the people believe—you talked about votes, but what if they voted in Alabama in 1820 whether you ought to have slavery or not? I mean, how do you think that vote would have gone?

    Mr. BROWN. But it's sort of like playing the stock market. If I have no idea whether the stock is going up or down, with my limited income I can't afford to play that. But if I know that stock is going to stay steady and has a chance of going up, I'm going the put my money on it if it's not going down but I know it's going to stay at the present level and go up.

    It's the same way betting on the railroad corridor being returned, because if we lose it, if we don't get it now and it's chopped up and sold off piecemeal, you'll never—
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    Mr. BACHUS. I understand that. I keep conceding that there is a need for this. What I don't concede is that—and there are cases when it ought to be compensated.

    Mr. MONTANGE. Well, Mr. Chairman, the current mechanism that the law provides does permit an adjacent to seek compensation and to obtain it in the event there is a taking, so, in a sense, your question is a kind of ''When did you stop beating your wife?'' kind of question. Our answer is, ''We haven't beat the wife,'' at least in our opinion.

    Mr. BACHUS. I'm not talking about—but I say that here are two different quotes that we sometimes here. I mean these in respect to this panel, but one of them is—it almost seems, if we say we need that property, there's a good use for it, and we can't pay for it, even though there may be some legal justification, it almost seems like we're arguing that ''the end justifies the means.''

    Mayor HINDMAN. I hope it's clear that I feel—and I believe the rest of the panel feels—that if there is, in fact, a taking, that if the person has a property right that is taken, then there ought to be compensation.

    I think one of the things we're arguing about is the procedure by which this should be done.

    Mr. BACHUS. I understand.

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    Mayor HINDMAN. And that—

    Mr. BACHUS. That's what I'd like to get to. I'd like us to—

    Mayor HINDMAN. It's not an issue of whether or not people who have property taken should be compensated. I hope all of us agree that is the situation.

    Mr. BACHUS. Okay.

    Mayor HINDMAN. The procedure in place now, as I understand it—and I don't do this kind of work—as I understand it, people who believe that there is a taking will file their claim with the court of claims and then pursue that claim.

    I think a blanket statute that would—and then the court of claims will decide whether or not, under the law, there has, in fact, been a taking, and that will be done on a case-by-case, a fact-specific situation.

    Mr. BACHUS. Right.

    Mayor HINDMAN. And you mentioned the kinds of easements where there has been a deed with some sort of reverter clause in it or some kind of a clause of termination of railroad use. The court of claims will look at that, it will look at the facts behind that, and say yes or no. There is a property right here that has or has not been taken.

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    Mr. BACHUS. Of course, Mayor, I guess what I'm saying is that sometimes they've looked at that and they've said that's all right, but they've said it's all right because the Congress has said it's all right.

    Mayor HINDMAN. I think what Congress said was it's all right for the preservation of the corridors. So what, as I understand, the Supreme Court has said, then, what Congress did is perfectly Constitutional.

    The question of whether or not there is a taking in a specific case is what you take up in the court of claims, and I'm not sure the court of claims has ruled on—

    Mr. MONTANGE. Mr. Chairman, if your point is that there should be compensation beyond what a court would rule as a taking—that is to say, even if there is no Constitutional taking of property that we want to provide compensation to the adjacent land owner more or less by way of giving them an additional financial benefit, even though the government is not, in fact, taking an interest from them which would Constitutionally require compensation, then I suspect that the answer of the majority of the trail managers is something as follows.

    If you do that, you—it's something that doesn't have to be done. Some would characterize that as a give-away of taxpayer funds. To the extent it is done, they would characterize it as a give-away.

    To the extent that it is not done because the funds are not available, then you decrease substantially the number of corridors which could be preserved if you simply exercised your prerogatives as a legislature.
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    Mr. BACHUS. I understand that. I think that's a given.

    Ms. FERSTER. If I could just—

    Mr. BACHUS. You know, you also, in all this—I don't even—the fact that everybody in the county votes to take Farmer John's property. I don't—and I think votes are very good, and I think that they simply get you to the point to where we're going to do this. But I think that vote also ought to imply that you're going to pay for if you have a taking.

    Mayor HINDMAN. Our point is that that ought to be for the court to decide whether or not—

    Mr. BACHUS. Yes, but some of their decisions have been influenced by us in our legislation.

    Ms. FERSTER. If I could summarize our testimony for just one moment, because I think it might clarify, the point we're trying to make is that, while feelings tend to run very high in many of these rails to trails conversion controversies, many of these issues are really feelings of concern that any person who lives next to a public works project might feel, and not necessarily based on any recognizable property interest.

    And, as Mr. Montange said, there is a process that is available, which is through the U.S. court of Federal claims, which is the only way to accurately provide compensation to people who have a property interest that's affected by the corridor and whose property interest has been taken.
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    And if there is some legislative solution or proposal to provide compensation, it will inevitably provide compensation to persons who have, in fact, either no property interest or no property interest that has been taken, which may well be the solution that Congress arrives at.

    But it certainly is not necessarily something that all adjacent landowners are entitled to by virtue of their status as adjacent landowners.

    Mr. BACHUS. Let me say this: I used an real extreme example of slavery in Alabama, and I don't mean to imply that this is analogous to that situation. I'm just saying that sometimes public opinion is certainly not a gauge.

    The other thing—and I'm taking much too long so I'm going to yield to Mr. Oberstar.

    Mr. OBERSTAR. Go right ahead, Mr. Chairman.

    Mr. BACHUS. One other thing is the notification. I simply can't understand maybe why these property owners aren't notified. Do you all agree?

    Mr. MONTANGE. I guess we disagree with the characterization fairly strongly of what kind of notice is provided.

    First of all, it isn't just ''Federal Register'' notice that is provided. There is local newspaper notice. It's in 49 CFR. It's in the environmental part.
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    Mr. BACHUS. But, you know, that's not—if you own property and I posted something in the ''Federal Register'' that allowed me to do something that affected your property, a property right, I don't know that—

    Mr. MONTANGE. Well, Mr. Chairman, you're dealing now with an issue which is very broad, because both Federal and State and local regulation proceeds by regulation, and the kinds of notices that are generally provided in our legal structure where we have 250 million people and people are hard to find and identify, we generally have relied and the court has upheld it as suitable notice for the impact of government regulation.

    On ''Federal Register'' notice in this case, it has been buttressed by local newspaper notice.

    And, in general, the process by which a corridor's rail bank does become quite controversial, people know about it in advance of the occurrence, or certainly by the time that they need to—

    Mr. BACHUS. That's why I guess I don't understand why we couldn't send a notice to everybody, which could easily be generated, I would think, to all the property owners.

    And I'll say this: we're talking about the legal notice. You're absolutely right. In Alabama until 1970 you could publish in a legal publication that no one read that you wanted a divorce and it was legal notice. People got divorces by publication and their spouses never even knew about it until they got divorce papers in the mail.
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    I think that really people read the ''Federal Register'' about like they read the legal magazine in Birmingham.

    Mr. MONTANGE. It would happen the same probably with a letter, too. You would send out a letter and someone would think it's just a form letter and throw it away and say they never got notice.

    Mr. BACHUS. That part we don't—

    Mr. MONTANGE. But the other question is this: the Surface Transportation Board's predecessor did look into the question of providing individual notice, and the railroad industry's position I think could be fairly characterized as follows: they don't keep records of that; it would be incredibly difficult for them to come up with it. Presumably you'd have to provide such notice in the case of every rail abandonment because every rail abandonment, by that logic, would affect or potentially affect a local property owner.

    And they feel that the notice requirement would be a severe impediment on their ability to abandon the line.

    If you simply made the notice requirement applicable to rail bank corridors, then there would be a tremendous disincentive on the railroad to do the rail banking because either they or we would have to compile this list and serve them with notice of—

    Mr. BACHUS. Gentlemen, there's abandonment notice and then there's trail use notice, and we don't give as much notice to trail use as we do to abandonment.
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    Mr. MONTANGE. I don't believe that's been established.

    Mr. BACHUS. Is that right?

    Ms. FERSTER. If I could just respond also, very briefly, to that point, and that is that when the Department of Highways in most jurisdictions chooses to build a road in any community, they don't provide individual notice to adjacent landowners.

    And in many cases—and probably most cases, in my view—the adjacent landowners to trails have no greater property interest than people who live next to a highway that's coming in.

    The fact of the matter is that the notice provided by the Surface Transportation Board and by the railroads under the rail abandonment process is quite broad and it does get out to adjacent property owners through both the required newspaper notices, as well as the notices that are circulated through State clearinghouses.

    And I think it's very rare that adjacent property owners will not have some opportunity to find out if there is a rail abandonment under consideration in their community.

    And most certainly, if there is a rail banking or trail use process underway, then the public process becomes extremely involved, because inevitably there is a requirement in most jurisdictions that there be community meetings and community notifications and hearings before a trail can be adopted in most jurisdictions.
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    So I think it's rare that there is not notice and that adjacent landowners, if they are asking for notice based on their property interest in the corridor, I think it's very difficult for them to demonstrate that they have a property interest.

    If you're going to somehow legislate that notice be provided to people who hold reversionary interest, then you're in a situation where, as Mr. Brown described, you may be trying to research wills and divorce proceedings and transfer documents for 100 years to determine who the heirs of the original grantors of the railroad deeds are.

    So it's a very difficult issue, I think, to legislate on. The bottom line is: the notice right now is adequate and it does give fairly broad notice of what's going on.

    Mr. WOLCOTT. Representative Bachus, in my testimony I listed a 5.2 mile section of railroad that is presently be considered for railroad abandonment. There have been two notices in the local daily newspaper. They're one-eight page in side, include genuine property description, as well as a map.

    Each time they're posted, we receive dozens of phone calls from, generally, pro-trail users encouraging us to respond to that.

    So I guess the point I'm trying to make is: those notices are issued in such a way that, other than if you do not read the newspaper, you really have no way of finding out.

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    Now, the second side of that is: because the notices have appeared, then there is an action group being mobilized to fight it.

    And so I think that the argument might be fairly weak that it's not well-publicized.

    Mr. BACHUS. You all would agree that there ought to be attempts of reasonable notice?

    [General agreement.]

    Mr. BACHUS. And it's just a question about what that is.

    Mr. MONTANGE. Mr. Chairman, frequently trails groups complain that they don't have adequate notice.

    Mr. BACHUS. Yes. Well, there you go.

    [Laughter.]

    Mr. BACHUS. All right. Thank you.

    Mr. Oberstar?

    Mr. OBERSTAR. Thank you, Mr. Chairman.
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    I want to thank this panel for a very enlightening presentation. I think your statements have been very solid, especially the testimonials to the economic impact of rails to trails, the development, the tourism, the investment that has come, not to mention the public benefit—the good of getting outside and open-air enjoyment in this era of aerobics where people, frankly, are living healthier, longer, because they're doing outdoor things, getting cholesterol out of their systems.

    All these good things are happening from rails to trails and other types of outdoor activities.

    I was very impressed with the recitation of Mr. Hindman and Mr. Brown about the economic impact that you have cited in your respective areas about development of trails, and would cite, again, the Paul Bunyan Trail in Minnesota in my District that goes from a little town of Brainerd and ultimately up to the Canadian border.

    The first year there was, in the first few weeks of operation—it was only a few weeks because winter closed in on us—there were 6,000 people using that trail. This summer, just in a two-month period, 100,000 people used that trail, three bed and breakfasts were built—actually, two built and the third one was doubled in size. A Dairy Queen—one of my favorite stops—was tripled in size. A bicycle shop was developed and is doing a land office business. That's 100,000 visitors, and they come and spend an average of $35 to $40 apiece. That's a sizeable economic impact on a little community of 11,000 people.

    So there are enormous benefits.
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    Now, the Chair raised this very interesting question I just made a note about—the compensation question—and speculated about those whose property is up against the right-of-way, and, while maybe they don't have an actual deed or legal claim, there is something happening here that is adverse and maybe it's even a legal fiction that this line would ever be opened again for rail purposes—if I'm not mischaracterizing the Chair's presentation.

    But the fact is that, as long as the railroad has the legal right to use it again for railroading, either the railroad company that abandoned or any other railroad company, as was the case in the Iowa power situation that I cited earlier, as long as they have the legal right there's no basis for compensation because you haven't really taken anything away. That right-of-way is available for railroading.

    It's not a legal fiction; it is a legal right, and that legal right has been exercised in two specific cases and is being advanced in possibly 17 other cases that we know of, and we've already addressed this—you've already addressed this matter of reactivating, in the case of the Stampede Pass.

    I checked this matter out with some additional documentation our staff has and I've reviewed it, and it appears that the Burlington Northern/Santa Fe Railroad has plans to convert 109 miles from trail to rail use, which is an area that's a nature trail, and another 77 miles to active rail use to relieve pressure on one of their active main lines stretching through the State of Washington.

    I know Burlington Northern is just doing gangbusters' business. All the railroads are doing gangbusters' business. They're having a tremendous couple of years, and will be in the future, so there is going to be a lot of pressure to convert some trail back to rail use.
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    Now, the Stampede Pass, as I understand it, was never rail banked. Have there been difficulties in reconverting the right-of-way to active railroad use because it was not rail banked?

    Ms. Ferster, you're the legal expert.

    Ms. FERSTER. I'd like to ask Mr. Montange to answer that question.

    Mr. OBERSTAR. All right.

    Mr. MONTANGE. I think I get to comment on that because I'm a Washington State resident and have had some involvement in that, sir.

    Yes, there have been a couple problems that have been associated with that, and I think—in trying to—we're limited in time now, so let me try to just summarize—

    Mr. OBERSTAR. We've got plenty of time. Just go right ahead.

    Mr. MONTANGE. Well, I'll summarize the difficulties that they faced.

    The first level of—it's Old Milwaukee Road Line, and it's basically down by the Columbia river, and it's in more of the desert part, I'd say, of the State of Washington.
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    BN is serving the Puget Sound area and they would like to enhance their intermodal capacity. Their current forecasts show growth in international trade and that the two lines that they have available to them will not be sufficient to cover that capacity in the next three to five years, so they are looking at acquiring back from the State, which acquired the Old Milwaukee Road within the State, acquiring back from the State approximately 100 miles for additional service.

    There have been two levels of difficulty in preserving that corridor by the State.

    First of all, there has been a lot of litigation over the State's title, so the State has had problems and is continuing to have problems over ten years after the acquisition in dealing with quiet title suits and other litigation about its effort to preserve that corridor outside the rail banking statute.

    In other words, the worm, if you will, still has segments that are in question, and thus that becomes a problem for BN when it wants to go back in. Who does it have to deal with and what are the elements of that?

    The second difficulty relating to the property has been, as I think the Chair alluded—although what I call a little bit of an inaccuracy. It's not so much the trail groups, although I suppose that there is some concern there. I've been down to that corridor as far as Enim Claw. Once you get to Enim Claw in the State of Washington, things dry out a lot. And, furthermore, you're not going to ride anything but a mountain bike with very thick tires over that stuff. It's not something that is an easy ride, so it doesn't sustain a lot of use.
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    Part of the reason is it's held by our Department of Conservation, or Natural Resources, which is not really a recreational agency, it's a conservation agency that likes to hold property for wildlife habitat.

    They are nervous about—I'm told by the Washington Department of Transportation they are nervous about this whole conversion of their natural wildlife corridor through the desert back into a railroad, but the State has adopted legislation which puts Washington State Department of Transportation in charge of negotiating the deal with Burlington Northern by which the conversion can be accomplished.

    I asked the Department of Transportation for its most recent views on the subject of the pass and received from them, under letter dated September 17, 1996, the following statement: ''In the period since 1970, Washington State has lost 1,917 miles of its rail lines to abandonment. That amounts to 38 percent reduction in mileage.

    ''Among these lines was one cross-State main line which, together with another mothballed line, reduced the State to two east-west main lines from the former four.

    ''Much of the rail mileage that was abandoned in this State since the passage of the National Trail Systems Act has been preserved as interim trails.

    ''Our State is, on a per capita basis, the most trade-dependent State in the country. Our two east-west main lines are currently operating at or near capacity. Forecasts for future intermodal container traffic volume moving through the ports of Puget Sound expect a present level of traffic increase by approximately two-and-a-half times by the year 2015, and grain traffic is expected to increase at a high rate, also.
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    ''Washington State Department of Transportation has, therefore, been advocating the creation of additional cross-State rail capacity to meet the needs of future growth in international traffic.''

    That traffic, I might add, benefits the whole country.

    ''The reopening of the mothballed Stampede Pass Line is in process, and restoration of connecting rail service across portions of the former Milwaukee Road right-of-way constitutes a high future priority for this St.

    ''While the legislature funded the purchase—'' that's the State legislature—''funded the purchase of much of this line when it was abandoned, the acquisition took place prior to the creation of the Trails Act.

    ''The problems associated with restoration of rail service to the Milwaukee Road right-of-way would be greatly simplified if it had been preserved under the Trails Act.

    ''We support continued use of the National Trails Systems Act to preserve rail corridors for future rail use.''

    I think that—

    Mr. OBERSTAR. That's a very significant statement that reconversion would have been greatly facilitated had the—
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    Mr. MONTANGE. Unquestionably that's their policy.

    Mr. OBERSTAR. —line been rail banked and protected in an appropriate way.

    Just as a parenthetical observation, some of that traffic does not benefit the whole country. Some of it is moving grain away from the port of Duluth in my District.

    Mr. MONTANGE. Sorry.

    [Laughter.]

    Mr. OBERSTAR. But that's all right. That's competition and we understand.

    We could spend—frankly, Mr. Chairman, we could spend an awful lot of time discussing these highly-technical questions, and I think this is a matter that, as we gear up next year in the next Congress toward the reauthorization of ISTEA, we're going to have to prepare some in-depth legal analyses of these very complex subjects, because, frankly, what you have, railroads have changed hands many times, rail lines that now are abandoned belonged to many different railroads, there are deeds that go back over 100 years, those deeds are different in eastern railroads east of the Mississippi compared to those west of the Mississippi where there were land grants.

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    This is a very complex and obscure, in many cases, legal arena in which to delve, and it's going to be one, though, that, to achieve a level of fairness in legislation, we're going to have to understand it better and understand these complexities better than we do or than we can accomplish in the course of a single hearing.

    But clearly, if the rail banking statute were repealed, that repeal would make conversion of railroad grade beds to recreational uses infinitely more difficult than it is today.

    Would you agree? You're nodding, Mr. Wolcott. Would you like to comment on that?

    Mr. WOLCOTT. That's certainly the case. I think that I expounded on that time and again in my testimony that it's taken us ten years and we're still just barely into the construction for one piece of our abandoned railroad property, yet another piece, if it is rail banked and we can deal directly with the railroad company, we can accomplish that in a short period of time.

    It's an amazing circumstance regarding the difference. When you have to deal with not only adjacent property owners and whether or not they have an interest, but the underlying fee owners and what interests did they have, and then how do you research that?

    Believe me when I tell you, as I expressed before, that we actually hired a firm just to do the lineage research on families who we discovered in our title reports may have an interest.
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    Needless to say, by the time we divided up their interests, there were so many, none of them had a great deal at stake.

    But in one of the main sections that we've just acquired there was no adjacent property ownership interest. It was all underlying fee, or really the ownership that was there before act of Congress right-of-way or before the donation land claims. It was before Statehood.

    Now, we're not a very old State compared to many back here, so 1889 wasn't that long ago when you think about Statehood for the State of Washington.

    Mr. OBERSTAR. Sure.

    Mr. WOLCOTT. But the point I'm trying to make is: it unquestionably is a terribly complicated matter and, as I think the previous panel expressed very well, they take it to the limit.

    We got to the United States Supreme Court, twice to the court of appeals, on a bike trail.

    Mr. OBERSTAR. Yes. I understand. And some of our friends on the environmental side take issues to the extreme limits, as well, as I experienced in my own Congressional District just recently.

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    But let's get at the underlying problem here. It's really not a legal issue, and it's not so much a compensation issue—though compensation may be a case where there is a clear ownership and maybe someone has an interest in using that property for some commercial purpose.

    But I sensed in the testimony previous that there is real concern about invasion of privacy; that you have this trail and there may be—while the railroad went on through and maybe only once a day or couple of times a week, you have these pesky people who are actually using this property several days of the week, maybe every day of the week, and there are hundreds of them, and they stray off the traveled way and they poke their nose into our back yards.

    Maybe there are some other concerns that have to be addressed here, such as fencing off that right-of-way, such as policing those trails by the users, some restraint exercised by trail users so they're not infringing on people's privacy where their back yard backs up to it.

    And I say that from some personal experience using the Washington and Old Dominion Grade Bed Trail out here in northern Virginia, where I've biked 40 of the trail miles all the way up to Purcellville in Virginia.

    Frankly, I saw folks standing out in the back yard waving to the bicyclists as they went along saying, ''Have a nice day. Enjoy yourself,'' but they are very well-disciplined users of that trail. They don't get off the traveled way. They aren't poking their nose into people's back yards.
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    I don't want to put words in your mouth. I just want to stimulate some thought.

    Ms. FERSTER. If I could respond briefly—and, Mr. Brown, I know you want to say something—it is my experience and my perception that most of the concerns that are called property rights concerns are, in fact, really fears that the trail will bring noise and litter and criminal activity or result in liability exposure to adjacent property owners which are not—they're different from having a property interest in the corridor. There really are the concerns of a neighbor to any kind of public facility.

    And our experience at the Rails-to-Trails Conservancy has, in fact, shown that a well-managed trail results in far less intrusion, noise, criminal activity, and inappropriate behavior than, in fact, an abandoned railroad corridor.

    There are—and, of course, this is an area in which local governments have chosen, on occasion, to regulate. There are recreational use statutes that have been adopted by all 50 States in the country that, in fact, limit the liability of adjacent landowners in cases where recreational users go on their land and become injured.

    And then other jurisdictions have, in fact, seen fit to adopt management standards for trail managers to make sure that these trails are appropriately managed to minimize intrusions on adjacent property owners.

    And if an adjacent property owner is truly very much concerned about privacy, there often is fencing that is installed to deal with those concerns.
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    The only point I do want to make is these are typically not a problem for most trails, and, to the extent they ever are perceived as a problem, they are appropriately dealt with by local and State governmental regulation.

    Mr. OBERSTAR. Mr. Brown?

    Mr. BROWN. Yes, sir. In our case, of course, it's mostly a rural trail; however, we found that fences make good neighbors, and it's to keep the ''animals'' on the trail and the animals off the trail. Keep the farm animals there and keep the trail users on the trail.

    There are four areas where there are houses nearby. In those cases we put up—in the farm areas we put up a five-strand, high-tensile fence. Where there is housing nearby, we put up a post and flank fence very similar to a split rail fence.

    We, in fact, have also planted vegetative screening. It hasn't—it's only been planted in 1994, so it hasn't really done its job yet.

    But we try very hard to be good neighbors.

    We've also found that if the trail is clearly delineated, people will not stray off the trail. We find more people in the wintertime, when there's snow on the ground and they can't see where the trail boundaries are, will inadvertently trespass—not deliberately, but wandering off, not knowing where the trail is.
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    As far as litter, as far as crime, vandalism, there has been zero.

    I walk the trail about three times a week. If I find one Coke can or one candy wrapper it's rare, it's unusual, in 11 miles.

    Mr. OBERSTAR. That good trail citizenship is very important and self-regulation is the most important.

    Mr. Hindman?

    Mayor HINDMAN. I'd like to respond just a little bit to that.

    I checked with the administrators of the Katy Trail about the complaints that they were getting as far as use is concerned. As I say, it's about 185 miles now, and they say that they're getting almost no complaints from adjoining landowners, and that the few that they get are from the same landowners over and over again.

    But, in general, they're getting almost no complaints.

    They have put up fences where anybody has requested fences. They have instructions for people as to how to conduct themselves on the trail. And, as far as they can tell, people are using the trail in a very responsible way and there hasn't been any serious conflict with the landowners.

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    In addition, a great many of the landowners along the trail are now big supporters and users of the trail, many of which at one time were opposed to it, mostly out of fear, which has turned out not to be justified.

    I can compare this a little bit to a rail trail that we have within the city of Columbia which now goes from downtown Columbia over eight miles out to the Katy Trail State Park. We built that with city funds, and there was opposition by fear of people who lived along that trail. But now people are building houses that are worth $400,000 and $500,000 along that trail, right next to it, and it has raised the real estate values and is considered one of the most attractive parts of town to live in, and the trail has been a major attraction.

    I have with me what's called the ''Katy Trail Update'' that is published by the State Parks, and it has some information about relationships with landowners and information about the opening of another section of the trail, which will be on Sunday the 29th.

    I'd like to give that to the committee, if I could. I'm not sure how to do it, but—

    Mr. OBERSTAR. I would certainly like to have one for myself, and the committee—I'm going to ask unanimous consent to receive it for the committee file, not for the hearing record.

    Without objection, we'll receive it for the committee file. Were I the Chair, that's how I would rule.

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    [Laughter.]

    Mr. OBERSTAR. I know that others want to comment, but we have a study by the University of Pennsylvania—the State University of Pennsylvania and Department of Interior which—questions were asked of neighbors to trails. Their overall satisfaction with having the trail as a neighbor: 47 percent, very satisfied; 12 percent, quite satisfied; 9 percent, 13 percent—goes right down to the middle of the satisfaction scale. Only 9 percent ''very unsatisfied.'' That's pretty high level. I mean, any one of the members of this committee would love to have that kind of approval rating from their constituency—47, 12, 59, 60, 68 percent approval rate. That's pretty darn good.

    Landowners' opinions about how the trail has affected the quality of their neighborhood: over 80 percent approval.

    Well, that's for three trails widely used and widely available to the public, so trails can be, and, at least in these cases studied, are very good neighbors and receive high approval ratings.

    The challenge to trail users, again, is to be self-regulatory, and I think, Mr. Brown, as you said, fences do make good neighbors, and where the fences are necessary put them up. And the trail users ought to do that, themselves.

    Mr. Welsh earlier stated that railroad rights-of-way are linear toxic waste dumps. What are your experiences with the railroad rights-of-way and toxicity that he alleged? What has been done about that? If it exists, is it an impediment to trail development?
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    Mr. WOLCOTT. In the trail project that we're working on right now, we have done an environmental impact statement. We have not discovered the issue of toxic waste being a problem.

    The amount of rainfall in the great Pacific Northwest, things grow in spite of what might have been left there by the railroads.

    So we have not discovered any waste, any toxicity of any kind, and we have done the environmental impact statement, as well as now, in our county, our trail is adjacent to two different rivers and two different streams, so we have to do shoreline—we have to get a shoreline management permit which, again, does some in-depth research.

    Once again, we've not discovered any issue that Mr. Welsh had discovered, and I'm not sure why Mr. Welsh was concerned about that, because he later said in his testimony that he and the 500 property owners loved the railroad. So that might not have been an issue as great as he earlier had thought.

    Mr. MONTANGE. Mr. Oberstar, I have a quick comment on the Wallace Branch which I think Mr. Welsh specifically referred to. That's the line in Idaho. I happen to be a consultant for the State of Idaho in connection with that line.

    Right now I think it's fair to state that Union Pacific Railroad wants to rail bank the corridor. The State wants to rail bank the corridor. And most of the Federal agencies involved that have thought about it want to rail bank the corridor because it's seen as a lynch pin in efforts to stabilize mine tailings toxicity in Silver Valley.
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    One of the railroad's consultants has quoted me informally a very, very high figure that either private enterprise or the government or a combination thereof would have to fork out to clean up the valley unless they can maintain that corridor in place, which is otherwise authorized for abandonment, in order to control water flows, and thus the distribution of mine tailings in Silver Valley.

    So although, even where you have the rare instance where there is a toxic corridor because of prior mining—not because, really, of what the railroad did, but because of mining—you have a situation where ironically, in the very case he cites, rail banking is viewed by most all the parties concerned as the solution, not as an additional or augmentation of the problem.

    Mr. OBERSTAR. Well, it would certainly seem to me that paving over the railroad bed, covering it up, preventing runoff—

    Mr. MONTANGE. Exactly.

    Mr. OBERSTAR. —of any material that may have been left there from passage of the rail is a way to protect it against groundwater intrusion.

    I want to compliment all of you on the work that you've done in developing the rails to trails concept, for the good citizenship that you've demonstrated, for your understanding of economic impact, and for your sense of responsibility.

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    This is a matter that, it seems to me, I represent an area that has a national park, a national forest, a national wilderness, a national scenic and wild river area. We have Lake Superior, which is one-fifth of the fresh water on the entire face of the earth.

    If you want to talk about environmental conflicts and use conflicts, boy, we've got them in my District.

    And I think that when you bring people together of good will with an honest disposition to come to a resolution, we can resolve these problems and we can exercise good citizenship that will benefit everybody and we ought not to be adversarial, we ought to be cooperative in approaching these issues.

    I think that protecting the railroad grade bed for the future is a very important responsibility of this generation.

    In the United States, 94 percent of all paid inter-city travel is by air. In Europe, only 45 percent of all paid inter-city is by air; the rest is by rail.

    European countries have protected their railroad interests because they understand it's a value, and I think we're doing two things: providing great opportunity for outdoor recreation for millions of people, and we're also protecting a great transportation resource for the future with the concept of rail banking.

    I want to thank you very much for the contribution you've made today.

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    Thank you, Mr. Chairman.

    Mr. BACHUS. Thank you, Mr. Oberstar.

    I am going to submit for the record, without objection, the statements of Chairman Molinari and Chairman Shuster of the full committee. I'd like to do that.

    [The prepared statements of Ms. Molinari and Mr. Shuster follow:]

    [Insert here.]

    Mr. BACHUS. And this concludes our hearing. I know the second panel didn't get to respond to the third panel, but the second panel got to go first, so that sort of evens things up.

    I think we've raised some interesting issues here today, all panels, and we appreciate your attendance.

    Thank you.

    [Whereupon, at 6:25 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]

    [Insert here.]

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