Editor’s Note: As of this writing, a motion for rehearing and rehearing en banc remain pending in the Ninth Circuit.
Last year, Rails-to-Trails Conservancy’s (RTC’s) legal team became actively involved in two cases—Hornish Joint Living Trust, et al. v. King County, and Kaseburg, et al. v. King County, et al., involving attacks on railbanked rail-trails in King County, Washington, regarding the 12-mile East Lake Sammamish Trail and the planned Eastside Trail—both of which provide important community connections in the western part of the state.
On Aug. 3, 2018, the United States Court of Appeals for the Ninth Circuit ruled in favor of King County in both of these cases, rejecting attempts by adjacent landowners to limit the rights of trail managers to use the full width of the right of way, including for utilities and public transit.
RTC’s legal team—led by RTC’s pro bono attorneys from the law firm Morrison & Foerster, with the assistance of RTC General Counsel Andrea Ferster—filed amicus curiae briefs in both cases in support of King County and the other defendants who were named in the lawsuit. (Amicus curiae means literally “friend of the court,” and these types of briefs are filed by those who are not direct parties in the case to offer guidance and perspective to the court.)
The Ninth Circuit ruling was a decisive victory that sets an important precedent for other trail groups defending their railbanked rail-trails against similar legal challenges. Here’s a further summary of the significance of railbanking—and why these cases really matter to the movement.
Railbanking Nuts and Bolts
In a nutshell: Railbanking—which was signed into law in 1983 and is a provision of the National Trails System Act (1968)—is a voluntary process between a railroad and trail manager that preserves an out-of-service rail corridor as a trail until a railroad might need the corridor again for rail service. Subjected to a variety of legal challenges since its inception, the United States Supreme Court unanimously ruled in 1990, in the case Preseault v. United States, that preserving a corridor for future rail use through railbanking is a legitimate exercise of governmental power. However, since 1990, opponents of railbanking have continued to attack the validity and scope of the strong legal protections afforded to trail managers by the statute.
A more thorough examination of the legal issues surrounding railbanking can be found in RTC's “Rails-to-Trails Conversions: A Legal Review.”
Rails-to-Trails Legal Team
Rails-to-Trails Conservancy is grateful for the pro bono support provided by legal experts throughout the country, which is critical to RTC being able to implement this important work.
“RTC is the only national organization that regularly goes to court to defend rail-trails,” affirmed Ferster. “We are able to do this as a result of the invaluable pro bono assistance we receive from lawyers and law firms such as Morrison & Foerster.”
“We at Morrison & Foerster are always pleased to provide pro bono services to help Rails-to-Trails Conservancy keep its mission on track,” said Mark C. Zebrowski, a partner at Morrison & Foerster LLP.
Learn more about RTC’s pro bono legal team.
In the case Hornish Joint Living Trust v. King County, several landowners adjacent to the East Lake Sammamish Trail—developed on a BNSF Railway corridor railbanked in 1999, and extending from Issaquah to Redmond—challenged the width of the corridor, arguing that it should be limited to the extent historically used by the railroad for operations (12 feet, according to the plaintiffs) instead of the full width of the corridor (generally 100 feet) depicted in valuation maps produced by the Interstate Commerce Commission in the early 20th century.
In the absence of supporting evidence from the plaintiffs for the narrower width, and with the presence of considerable evidence supplied by the defendants supporting the 100-foot width, the court ruled in favor of King County’s rights to the entire width of the railbanked corridor. In summarizing the railbanking act and other court cases, the Ninth Circuit Court of Appeals stated, “the Government has a strong interest in both facilitating trail development and preserving established railroad rights-of-way for future reactivation of rail service.”
The Kaseburg v. King County decision rejected similar arguments from landowners adjacent to the Eastside Rail Corridor, which was railbanked in 2010 and will eventually be home to a new regional rail-trail, as well as transit and utilities. Further, the underlying lower court ruling rejected the plaintiffs’ argument that the co-located transit and utility uses were impermissible uses of the railbanked corridor, holding that King County had the right to “use the corridor as if the railroad purposes easement currently exists” including for any incidental uses allowed under Washington law.
These two cases confirm that railbanking provides a virtually unbeatable legal defense for trail managers from these sorts of legal challenges. The decisions are the most recent in a long line of cases handed down by courts that protect railbanked corridors against these sorts of lawsuits and serve to strengthen the importance of railbanking as an effective tool for trail development. “This important set of decisions will hopefully deter class action attorneys from bringing similar attacks on railbanked corridors elsewhere in the United States,” said Ferster.
For more than 30 years, RTC has been the leading advocate for and defender of railbanking in the courts and Congress. We continue to monitor legislative and legal-assault threats to railbanking and stand ready to help trail managers defend their trails in Court. We encourage trail managers and advocates throughout the country to bring issues to our attention as soon as they emerge.
To learn more about RTC’s legal program and how to get in touch with us, go to our Legal page.