The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History: Hash V. United States and the Threat to Rail-Trail Conversions

Article excerpt

I.    INTRODUCTION
II.   FEDERAL RAILROAD LAND-GRANT POLICIES
III.  THE SHIFTING SANDS OF FGROW PROPERTY RIGHTS
IV.   ABANDONMENT, RAILBANKING, AND JUST COMPENSATION
V.    HASH V. UNITED STATES
VI.   HOMESTEAD PRECEDENTS HOLDING THAT PATENTEES HAVE NO RIGHTS IN
      FGROW ABSENT EXPLICIT LANGUAGE IN THEIR PATENTS
VII.  CONGRESS'S SHIFTING RESPONSES TO RAILROAD FORFEITURES AND
      ABANDONMENTS
VIII. ABANDONMENT PURSUANT TO 43 U.S.C. [section] 912
IX.   SCOPE OF THE FGROW EASEMENT
X.    HASH PROGENY
XI.   CAN HASH BE LIMITED?
XII.  CONCLUSION

I. INTRODUCTION

Rarely does a single case, especially out of a circuit court, threaten to undermine an entire area of well-established (and correct) case law interpreting numerous federal statutes. But that is precisely the situation arising in the context of the conversion of federally-granted railroad rights-of-way (FGROW) (1) to recreational trails under the railbanking statute. (2) In 2005, the Federal Circuit, in Hash v. United States, (3) decided the question of whether the federal government retained any underlying interest in FGROW when it made subsequent land patents of the adjoining land. In holding that the government's servient fee interest (4) in FGROW passed to patentees at the time of original homestead patents, the court went against decades of precedents finding that the federal interest in railroad land grants was excluded from subsequent patents. (5) More worrisome, however, is that later courts have interpreted dicta in Hash to compel a finding that any preservation of FGROW for rail-trail conversion constitutes a taking requiring compensation. (6) This decision, in conjunction with a handful of lower court rulings, threatens to seriously undermine this country's commitment to railbanking (the preservation of unused rail corridors for future reactivation) (7) and its support of rail-trail conversions, and creates a windfall for private landowners at the expense of the public lands. And this is not just about hard cases making bad law; (8) these cases misuse history, distort legal principles, and upset well-established precedents in a way that profoundly undermines our commitment to the rule of law.

Since the 1830s, the federal government has granted to railroads a right-of-way across public lands for the location of their roads. (9) Between 1852 and 1862 this right-of-way was granted pursuant to a general statute giving charter railroads a right-of-way 100-feet wide, plus timber, gravel, and the right to build suitable drains. (10) Between 1862 and 1871 the government granted 100-foot or 200-foot rights-of-way to the transcontinental railroads via individual acts of Congress, in addition to alternating sections of land on either side of the roadway for sale to raise construction funds. (11) This lavish land grant policy, combined with grants to the states which were to be transferred to the railroads, resulted in the transfer to private railroads of over 130 million acres of public land. (12) After 1871, dissatisfaction with the railroads and their delays in bringing this public land to market led Congress to discontinue the checkerboard grants, and to pass another general right-of-way act in 1875 to grant to any railroad a 200-foot right-of-way through the public lands but no additional lands for sale (1875 Act). (13) The 1875 Act has remained unchanged as 43 U.S.C. [section][section] 934-39, even though there are no modern railroads engaged in new construction. (14)

In 1916, railroad mileage in this country reached its peak of 270,000 miles, only to dwindle to half that amount by the present day. (15) Competition from trucking and airlines, in addition to consolidations and mergers, has caused the majority of these railroad miles to disappear, primarily to the adjacent landowner who absorbs the abandoned corridor land under a variety of statutory and common law mechanisms. (16) Pursuant to a 1922 statute, the federal interest in abandoned FGROWs would pass to either a municipality, be transferred for a public highway, or pass to adjacent landowners. …