Jump to Navigation
Jump to Content

National Wildlife Fed'n v. Interstate Commerce Comm'n

ELR Citation: 18 ELR 21035
Nos. Nos. 86-1317, -1389, 850 F.2d 694/(D.C. Cir., 06/10/1988)

The court holds that the National Trails System Act (Trails Act) does not authorize the Interstate Commerce Commission (ICC) to compel railroads to transfer unused rights-of-way for trail use, and that application of ICC transfer rules might constitute a compensable taking of the property of holders of reversionary interests in rights-of-way. The court first holds that although §8(d) of the Trails Act, which encourages conversion of rights-of-way to trails, is ambiguous, it does not clearly permit the ICC to compel conversion. Some of the language in §8(d) might be read as mandatory if forced conveyances were authorized elsewhere in the Trails Act, but they are not. Section 8(d) also contains no condemnation powers or procedures, which compelled conversion would require. Compelled conversion whenever a trail operator satisfied the conditions of §8(d) would also be inconsistent with the narrow condemnation powers granted elsewhere in the statute. The court thus holds that the ICC reasonably read §8(d) as allowing only voluntary transfers. The court also holds that the sparse legislative history on this question is not conclusive. The court holds that §8(d) is not repetitive of 49 U.S.C. §10906, because §10906, unlike §8(d), does not include a rail banking provision that preempts state laws on right-of-way reversion. The court also holds that the ICC reasonably determined that §8(d)'s requirement that a transferee assume all right-of-way management, tax, and liability responsibilities is simply an incentive for railroads to consider interim trail use proposals that they otherwise might not find worthwhile.

The court finds that the ICC did not determine whether postponement by trail use of the vesting of a reversionary interest under state law constitutes a compensable taking of private property. The court holds that postponement of the vesting of a reversionary interest by authorization of trail use can be a taking. The court also holds that although Congress can preempt state laws providing for termination of railroad easements upon discontinuance of rail operations, it is not clear whether reversionary owners whose property interests are defeated by that preemption are entitled to compensation. Because the ICC's erroneous determination that postponement of reversionary interests is not a taking precluded it from considering whether the taking was compensable, the court remands the issue to the ICC for reconsideration. The court holds that the ICC must consider the effects of its rules on the property rights of variously situated reversionary owners. These effects will be case-specific, and will depend partly on what a particular owner's property rights are under state law. Finally, the court holds that the goal of preserving rail transportation corridors for future rail use does not justify the ICC's failure to investigate the effects of its rules on reversionary rights. Trail use may last indefinitely if a railroad and a trail group so agree, and the ICC may not indefinitely frustrate the rights of those with interests in rail property in order to preserve a possibility, however slight, that rail service may be resumed in the future.

Counsel for Petitioner
Charles H. Montange
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-6886

Counsel for Respondent
Evelyn G. Kitay
Interstate Commerce Commission
Washington DC 20423
(202) 275-1826

Counsel for Intervenor
John B. Norton
Association of American Railroads
50 F St. NW, Washington DC 20001
(202) 639-2504

Before: EDWARDS, STARR, and D.H. GINSBURG, Circuit Judges.