National Wildlife Federation v. I.C.C.
| Decision Date | 10 June 1988 |
| Docket Number | Nos. 86-1317,86-1389,s. 86-1317 |
| Citation | 850 F.2d 694,271 U.S.App.D.C. 1 |
| Parties | , 56 USLW 2723, 18 Envtl. L. Rep. 21,035 NATIONAL WILDLIFE FEDERATION, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Intervenor. Victoria BERES, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Charles H. Montange, Washington, D.C., was on the brief for petitioners National Wildlife Federation, et al. David Burwell, Washington, D.C., also entered an appearance for petitioner Rails to Trails Conservancy.
Daryl A. Deutsch, Bellevue, Wash., was on the brief for petitioner Victoria Beres.
Evelyn G. Kitay, Atty., I.C.C., with whom Catherine G. O'Sullivan, Donald S. Clark, Attys., Dept. of Justice, Robert S. Burk, General Counsel, and Ellen D. Hanson, Associate General Counsel, I.C.C., Washington, D.C., were on the joint brief, for respondents. Laura Heiser, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondent U.S.
John B. Norton, Washington, D.C., was on the brief for intervenor Association of American Railroads.
Daniel William Wyckoff, Asst. Atty. Gen. for the State of Wash., Olympia, Wash., was on the brief for amici curiae States of Wash., La., and Fla.
Before EDWARDS, STARR and D.H. GINSBURG, Circuit Judges.
These consolidated cases seek review of the Interstate Commerce Commission's final rules implementing Sec. 8(d) of the National Trails System Act, 16 U.S.C. Sec. 1247(d) (Supp. IV 1986) ("Trails Act"), a statute that governs the conversion of abandoned railroad rights-of-way to nature trails. In the rules under review, the Interstate Commerce Commission interpreted Sec. 8(d) to provide only for voluntary transfers of rights-of-way from railroads to trail operators and determined that such transfers would not result in a "taking" of the property of the holders of reversionary interests in the rights-of-way. The National Wildlife Federation ("NWF"), petitioner in No. 86-1317, challenges the ICC's determination that Sec. 8(d) does not authorize it to compel a railroad to transfer a right-of-way to a nature trail operator. 1 Petitioner in No. 86-1389, Victoria Beres, is a landowner whose property is subject to an existing railroad right-of-way. She contends that the Commission's regulations authorize the taking of her property without just compensation.
We conclude that the Commission was not unreasonable in deciding to read Sec. 8(d) as authorizing only voluntary transfers of rights-of-way, and we therefore deny NWF's petition for review. We disagree, however, with the Commission's conclusion that the application of its rules may never constitute a taking of the reversionary interests of property owners whose land is subject to a railroad right-of-way. We therefore grant Ms. Beres's petition in part and remand the case so that the Commission can reconsider its rules in light of their possible effect upon the interests of reversionary owners.
I. BACKGROUND
Congress enacted the Trails Act in 1968 in order to establish a nationwide system of nature trails. Pub.L. No. 90-543, 82 Stat. 919 (). Congress reserved to itself the right to designate scenic and historic trails, and delegated to the Secretaries of the Interior and of Agriculture the authority to designate recreational trails, and to develop and administer the entire trail system. See 16 U.S.C. Secs. 1243, 1244, 1246. Section 7(e) of the Act, 16 U.S.C. Sec. 1246(e), provides that the land necessary for a designated scenic or historic trail may be acquired by state or local governments, or by the federal authorities, through cooperative agreements with landowners or by purchase. In the event that all voluntary means for acquiring the right-of-way fail, the appropriate Secretary is given limited power to obtain private lands through condemnation proceedings. See 16 U.S.C. Sec. 1246(g).
As originally enacted, the Trails Act made no specific provision for the conversion of abandoned railroad rights-of-way to trails. 2 Congress's first effort to encourage this type of adaptive re-use appeared in Sec. 809 of the Railroad Revitalization and Regulatory Reform ("4-R") Act of 1976. P.L. 94-210, Title VIII, 90 Stat. 144 (). Section 809(a) of the 4-R Act required the Secretary of Transportation to prepare a report on alternative uses for abandoned railroad rights-of-way. Section 809(b) authorized the Secretary of the Interior to provide financial, educational, and technical assistance to various government entities for programs involving the conversion of abandoned rights-of-way to recreational and "conservational" uses. 3 Section 809(c) authorized the ICC to delay the disposition of rail property for up to 180 days after the effective date of an order permitting abandonment, unless the property at issue had first been offered on reasonable terms for sale for public purposes (including recreational use). 49 U.S.C. Sec. 10906 (1982). 4
Congress renewed its effort to promote the conversion of railroad rights-of-way to trail use when it enacted the current Sec. 8(d) as part of the 1983 Trails Act Amendments. See Pub.L. No. 98-11 Sec. 208, 97 Stat. 48 (codified at 16 U.S.C. Sec. 1247(d) (Supp. IV 1986)). Divided into its three component sentences, Sec. 8(d) provides as follows:
1. The Secretary of Transportation, the Chairman of the Interstate Commerce Commission, and the Secretary of the Interior, in administering the Railroad Revitalization and Regulatory Reform Act of 1976, shall encourage state and local agencies and private interests to establish appropriate trails using the provisions of such programs.
2. Consistent with the purposes of that Act, and in furtherance of the national policy 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, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with the National Trails System Act, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.
3. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this Act, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.
Initially, the Commission proposed to adopt an implementing regulation that interpreted Sec. 8(d) to require that an about to be abandoned right-of-way be transferred to a qualified operator that agreed to assume full responsibility for its operation as a trail. See Rail Abandonments--Use of Rights-of-Way as Trails, 50 Fed. Reg. 7200 (Feb. 21, 1985). The Commission received more than 100 written comments on the proposed regulation. NWF and several other commentators supported the ICC's proposed rule, while the Department of Transportation, the National Park Service, and others opposed it. Ms. Beres argued that, as applied to her property, the proposed regulation would work an unconstitutional taking without compensation and urged the Commission to adopt a case-by-case approach to right-of-way conversion in order to avoid such takings.
The Commission's final regulation rejected the mandatory interpretation and concluded that Sec. 8(d) contemplates only voluntary arrangements between railroads and would-be trail operators. See Rail Abandonments--Use of Rights-of-Way as Trails, 2 I.C.C. 2d 591 (1986) (hereinafter "Trails Act Rules" or "Rules"). In reaching this result, the Commission emphasized that a railroad right-of-way is private property that is entitled to protection under the fifth amendment and must be acquired for public use through condemnation proceedings. The Commission observed that Sec. 8(d) contains neither an express delegation of condemnation power to the Commission, nor terms implying that such a delegation was intended, nor any procedures governing the conduct of condemnation proceedings. Id. at 597. (Nor does the legislative history provide any indication that Congress intended to delegate a condemnation power in Sec. 8(d).) The Commission also noted that the mandatory rule it initially proposed was not necessary to carry out the primary purpose of Sec. 8(d), namely, to prevent railroad rights-of-way operated under easements from reverting to their grantors when they are abandoned by the railroads, an event that would effectively preclude their conversion to recreational use. Id.
In keeping with its interpretation of the Trails Act, the Commission adopted specific procedures designed to encourage the negotiation of voluntary trail use agreements. While the details of these procedures vary depending upon the type of abandonment, the Rules generally require notice to potential trail operators and, if the railroad indicates a willingness to consider such use, time to negotiate an agreement. If such an agreement is concluded with a qualified trail operator, the railroad will be allowed to discontinue current service while retaining the right to resume rail...
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