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8 Kan. J.L. & Pub. Pol'y 158 (1998-1999)
Addressing the Flaws of the Rails-to-Trails Act

handle is hein.journals/kjpp8 and id is 560 raw text is: Addressing the Flaws of The Rails-to-Trails Act Emily Drumm I. Introduction Through what is commonly known as the Rails-to-Trails Act,1 Congress enacted the practice of rail banking in 1983 to solve the dual problems of railway abandonment and the growing public demand for recreational trails. This amendment to the National Trails System Act2 authorizes public and private entities to purchase the property interests of unprofitable or inactive rail corridors from railroad compa- nies to convert them into hiking and biking trails for public use. If demand for rail trans- port increases at a future date, the railroad can opt to repurchase the trails, reinstall the tracks, and resume rail operations.3 The railroad can thus bank its ownership of the railway with a trail operator. In the meantime, the railroad avoids tax and tort liability, while the local cit- izenry enjoys level and scenic nature trails. The statistics speak of the popularity of rail-trails throughout the country. On October 19, 1998, the 1000th trail was opened in Greene, Rhode Island, raising the total num- ber of rail-trail miles throughout the United States to over 10,000.4 Predictions estimate 8000 more miles of rail-trails are soon to fol- low.5 The Rails-to-Trails Conservancy calcu- lates the rail-trails throughout the country were used 96 million times in 1996.6 Recognizing the public's enthusiasm for the trails, Congress has allocated over $200 million from the Highway Trust Fund to help finance these pro- jects. 7 Not everyone, however, is enthusiastic about the conversion of unused railroad tracks into bustling nature trails. Adjoining landown- ers have pleaded, literally, Not in my back- yard! in protest of the hikers and bikers pass- ing through their private property. Estimates hold that 85 percent of all railroad tracks are mere easements on property (as opposed to fee simple) actually owned by adjoining landown- ers, easements that would revert back to the owners upon abandonment were it not for the Act.8 Because the Rails-to-Trails Act's conver- sion procedure inadequately protects the prop- erty interests of landowners, this note advocates its modification. This note will (1) discuss the history of the railroads' interests in the rail cor- ridors, (2) examine the Rails-to-Trails Act's effect on the natural disposition of the ease- ments upon abandonment, and (3) evaluate the public policy issues involved in the Rails-to- Trails Act in determining what can be done to remedy the problems with the Act. This'note points to ways of ensuring individual property interests are not so easily sacrificed for the recreational enjoyment of the community. II. History of Railroad Interests A. The Growth of the Railroads... The ability of the nation to transport people and goods became a significant concern when the United States more than doubled the size of its territory with the Louisiana Purchase in Emily Drumm is a second-year law student at the University of Kansas School of Law in Lawrence, Kansas. The author wishes to thank Professor Robert L. Glicksman for his helpful comments to earlier drafts of this article.

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