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
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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