Railroad Abandonment Process Resources

[Jeff Smith]

https://en.wikipedia.org/wiki/Abandoned_railway" onclick="window.open(this.href);return false;

Abandonments in the United States are controlled under Title 49, Chapter 10, Part 1152 of the Code of Federal Regulations, and are administered by the Surface Transportation Board, an adjudicatory body within the U.S. Department of Transportation. The abandonment process starts when the railroad company submits a notice to the STB about their intent to abandon a railway line; this notice is served 10 days before the formal abandonment petition is filed by the railroad company. Once filed, various timeframes are allotted in order for other interested parties to proffer their requests regarding the abandonment; any intent by a rail-trail advocacy group to convert the right-of-way into a rail-trail (called rail banking) must be submitted within 30 days, while any financial assistance offers to either purchase the property outright or to subsidize rail traffic on the line must be submitted within 50 days.[7] If ultimately approved by the STB, the railway up for abandonment will be either formally abandoned, converted to trail use if the railroad and trail advocacy group arrive at an agreement on terms/price of the sale of the property, or operated by either the owning railroad (via a subsidy) or by a new owner.[

This link is fairly informative:

http://www.iowadot.gov/iowarail/railroa ... ochure.pdf" onclick="window.open(this.href);return false;

ACQUIRING ABANDONED RAILROAD RIGHT-OF-WAY PRIVATE USE

Generally speaking, railroad companies have acquired title to their right-of-way (ROW) in one of several ways:

(I) TITLE BY FEE SIMPLE ABSOLUTE. Fee Simple Absolute or Warranty Deed mean, in simple terms, that the railroad acquired
the land outright or received it through a federal land grant and has complete rights to the property.
(ii) TITLE BY FEE SIMPLE DETERMINABLE. Fee Simple Determinable is similar to an easement in that there are conditions
and restrictions on the use of the property. For example, a seller may include conditions and restrictive terms in the deed
which allows the railroad to hold title to the property “only so long as the property is used for ‘rail operations’ or ‘rail purposes’.”

If the railroad does not use the property as set out in the deed, then the property reverts to the seller, the seller’s
heirs, successors or assignees.

(iii) EASEMENT / EMINENT DOMAIN. An Easement provides for a specific and limited use of property which is owned by another. When the property is no longer used for the specific purpose set forth in the easement document it reverts to the owner. Title to the property acquired under the power of Eminent Domain is considered to be only an Easement.

Parties interested in acquiring abandoned railroad ROW should notify the railroad company’s real estate department in writing, enclosing a legal description of the property, as soon as possible after the abandonment proceeding have been started. The prospective buyer should obtain a title opinion to determine the quality of title held by the railroad
company and if the title is transferable before negotiations have reached the point of commitment. Because of the complexities involved in this process, it is advisable to get the help of an attorney or real estate
expert.

In some instances, it may be advisable for parties interested in acquiring abandoned railroad ROW to form a group and purchase the ROW in one block and make their own divisions afterwards. Approaching the railroad company as a group might mean a reduction in the price of the property because the cost and expenditure of time is greater when
dealing with each individual buyer than when dealing with a group.

Again, it is advisable to have the professional help of an attorney because this method requires a great deal of cooperation and some special legal preparations.

Although interested parties can direct their inquiries to the railroad company regarding the purchase of abandoned railroad ROW any time after the abandonment proceeding have begun, no sale can be consummated until after the abandonment becomes effective. Negotiation for abandoned railroad ROW are carried on in the same manner as between any private parties or businesses. Neither the state nor the STB can act as intermediary in these negotiations.

PUBLIC USE

The STB may, in accordance with 49 CFR 1152.28, defer the sale of abandoned railroad right of way by the railroad company for up to 180 days from the effective date of the abandonment if the rail properties are suitable for use for other public purposes. The STB reserves to itself the right to determine the definition of public use. Game preserves, hiking and biking trails, utility lines and erosion control barriers are some of the uses that have been identified in the past as suitable public uses.

Parties seeking a PUBLIC USE condition in an abandonment proceeding must file a written request for public use condition with the STB no later than 45 days after the application is filed. The written request must contain the following information:

(i) The condition sought;
(ii) The public importance of the condition;
(iii) The period of time for which the condition would be effective (up to the statutory maximum of 180 days); and
(iv) The justification for STB to impose the time period requested.

A copy of the written request must also be sent to the railroad company. A decision on the public use request will be issued prior to the effective date of the abandonment. The decision does not force the railroad company to accept an offer to purchase for public use...it only prescribes the time period, up to 180 days, during which negotiations may progress. If at the end of that time period no agreement has been reached, then the railroad company is free to accept any other offer.

INTERIM TRAIL USE AND RAIL BANKING

The STB may, in accordance with 49 CFR 1152.29 and 16 USC 1247 (d) (the National Trails Act), defer the abandonment to give interested parties the opportunity to negotiate a voluntary agreement with the railroad company for interim use of the right-of-way (ROW) for recreational trails. Trails use is subject to future restoration and reconstruction of the right-of-way for rail purposes should rail service ever be reinstated.

Parties interested in acquiring or using the railroad’s ROW for interim trail use and rail banking pursuant to 49 CFR 1152.29 and 16 USC 1247 (d) must, within the 45 day comment period, submit a written request or petition to the STB with a copy to the railroad, indicating their desire to use the ROW for trail purposes. The request or petition must include:

(i) A map, along with an accurate description (including mileposts), depicting the ROW or portion thereof which is proposed to be acquired or used for trail purposes,
(ii) A statement indicating the user’s willingness to assume full responsibility for:
• managing the right-of-way;
• any legal liability arising out of the use of the ROW, or if immune, indemnify the railroad against any potential liability; and
• the payment of any and all taxes assessed against the ROW.
(iii) An acknowledgment that interim trail use is subject to the user continuing its responsibilities described in (ii) above and subject to possible future reconstruction and reactivation of the ROW for rail service.

The interim trail use statement must be in the following form:

Statement of Willingness to Assume Financial Responsibility
In order to establish interim trail use and rail banking under 16 U.S.C. 1247 (d) and 49 CFR 1152.29, (Name of Interim Trail
User) is willing to assume full responsibility for management of, for any legal liability arising out of the transfer or use of
(unless user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against the right-of-way owned by (Name of Railroad) and operated by (Name of Railroad . The property, known as Name of Branch Line) , extends from railroad milepost
_______ near (Station Name) , to railroad milepost ______ near (Station Name) , a distance of ______ miles in (Name of County(ies) and State(s) . The right-of-way is part of a line of railroad proposed for abandonment in Docket No. STB AB-
___ (Sub No. ____).

A map of the property depicting the right-of-way is attached. (Name of Interim Trail User) acknowledges that use of the
right-of-way is subject to user’s continuing to meet its responsibilities described above and subject to possible future reconstruction and reactivation of the right-of-way for rail service. A copy of this statement is being served on the railroad(s) on the same date it is being served on the Board.

Under regular abandonment proceedings the STB will, provided abandonment would have been permitted and the railroad agreed to negotiate an interim trail use / rail banking agreement, issue a Certificate of Interim Trail Use or Abandonment (CITU) to the railroad and the interim trail user. Thirty days after the CITU is issued the railroad is permitted to discontinue service, cancel any applicable tariffs, and salvage track and materials consistent with interim trail use and rail banking conditions.

If no interim trail use / rail banking agreement is reached within 180 days from the date the CITU is issued, the railroad will be permitted to fully abandon the line. If the abandonment is being sought under Exempt Proceedings, then a
petition containing the interim trail use statement must be filed concurrently with the STB and the Railroad within 10 days after the Notice of Exemption (or within 20 days after the Petition For Exemption) is published in the Federal Register. If rail service does not continue and the railroad agrees to negotiate an interim trail use / rail banking agreement, the STB will issue a Notice of Interim Trail Use or Abandonment (NITU) to the railroad and the interim trail user. As with the CITU, the NITU permits the railroad to discontinue service, cancel any applicable tariffs, and salvage track and materials consistent with interim trail use and rail banking conditions thirty days after the NITU is issued. If no interim trail use / rail banking agreement is reached within 180 days from the date the NITU is issued, the railroad will be permitted to fully abandon the line.

More succinct: http://www.railstotrails.org/build-trai ... -railbank/" onclick="window.open(this.href);return false;

How to Railbank

Railbanking takes place during a rail corridor abandonment process. Official negotiations with a railroad begin after the railroad submits an initial notification to abandon a line (similar to a letter of intent to abandon) to the Surface Transportation Board (STB). Negotiations end with either railbanking or line abandonment.

Due to the quick nature of abandonment proceedings, groups interested in acquiring a corridor for trail use may want to approach the railroad before the abandonment process begins.

Since railbanking is a pre-abandonment strategy, you will be dealing with either the legal or the asset management departments of the railroad company. These departments, more than the real estate department, may have a better understanding of how a bulk sale to a trail group can benefit a railroad. Because you and the railroad negotiator have a common interest in corridor preservation, playing to this shared goal can provide you some leverage. Otherwise, as soon as a corridor is abandoned and assigned to the real estate department for liquidation, maximizing the sale price becomes the overriding railroad objective.

Railroads must follow one of three abandonment procedures that the STB has developed:
1.Regulated abandonment (the most stringent and least common)
2.Individual exemption
3.Class exemption

Railroads that follow the individual exemption procedure will file a Petition for Exemption, which is used when the transaction is of “limited scope” or when regulation of the transaction is “not needed to protect the shippers from the abuse of market power.” Class exemptions, currently the most common option, apply if the line has not been in use for two or more years or if the STB finds there is no vital interest in continuing rail service on that line.

All abandonment proceedings are assigned a docket number that is used to catalogue all filings from the railroad and decisions from the STB. When searching the STB website or contacting the library for specific filings, it's helpful to know the docket number associated with the particular abandonment procedure so you can track progress and information most efficiently. These docket numbers begin with the letters “AB” (for abandonment procedure) and are followed by a number that indicates which railroad company has filed for abandonment. A sub-number (Sub-No.) is then assigned to the specific case. The full docket number for a regulated abandonment might look like this: AB-16 (Sub-No. 200). Individual and class exemption applications are then followed by the letter “X,” such as “AB-16 (Sub-No. 200X).”

Below you will find basic information and a timeline for exemption proceedings. For more information on abandonment proceedings, refer to STB’s Web resources on rail-trail conversions.

Class Exemptions

This breakdown allows you to see the process for responding to a Notice of Exemption filing, including when each action takes place and who is responsible for the action or filing submissions.

Before Abandonment Filing

When: 10 days prior to abandonment filing
Who: Railroad

The railroad sends a notification to the State Service Board (or equivalent agency).


Day of Abandonment Filing

When: Day of abandonment filing
Who: Railroad

A petition for abandonment exemption (Notice of Exemption) is filed with the STB. To search for filings, visit the STB website and click on the drop down menu: E-Library > Filings. Sign up for RTC's Early Warning System to receive notice of abandonments as soon as the railroad files with the STB.


After Abandonment Filing

When: 30 days after abandonment filing
Who: Agency/organization interested in trail development


A request for a Notice of Interim Trail Use (NITU) is filed with the STB and the abandoning railroad’s legal department. This request should also include a “Statement of Willingness to Assume Financial Responsibility” and a request to establish a Public Use Condition (PUC). By filing a “Statement of Willingness to Assume Financial Responsibility,” you are merely indicating that you are capable of assuming financial responsibility should your agency/organization and the railroad reach mutually agreeable terms for the transfer of the corridor. This is not a contract, and your agency is under no obligation to acquire the corridor. A PUC prevents the railroad from selling or otherwise disposing of any property or trail-related structures, including bridges, tunnels or culverts, for a 180-day period from the effective date of abandonment. Since a railroad may not agree to a railbanking negotiation, requesting a PUC, which the STB will almost always grant, may buy additional time to convince the railroad to negotiate with you.


When: 40 days after abandonment filing
Who: Railroad

Once the railroad has received the agency/organization's letter expressing the desire to negotiate for railbanking, the railroad has 10 days to decide whether to participate in a discussion and to notify the STB.


When: 50 days after abandonment filing
Who: Another railroad interested in acquisition

Within 50 days of the abandonment filing, it is possible for another railroad to submit an Offer of Financial Assistance (OFA) to purchase the line; this intervention trumps railbanking. If no ITU, PUC or OFA has been filed within 50 days of the abandonment filing, and the railroad has addressed all environmental and historic-preservation conditions imposed by the STB, then the railroad may consummate abandonment of the line.


When: 110 days after abandonment filing
Who: STB

If the railroad agrees to negotiate and submits a letter to the STB, then the STB will issue a NITU, which along with the PUC “stays” the abandonment for an initial 180-day period. Both parties can use this time to reach an agreement, and the railroad and trail group may extend the NITU indefinitely (in 180-day increments) to continue negotiations if an agreement has not yet been reached. The STB tends to be generous with extensions, as it is in their best interest to keep the rail system intact. However, the STB will only grant extension requests if both parties are amenable. Both the railroad and trail group can terminate NITU negotiations at any time.


End of Negotiations

If the negotiations are successful and the parties agree on a price, then the railroad will pass over a deed to the trail group, similar to any land acquisition. At this point, the railroad files a consummation notice with the STB, which will officially railbank the corridor. If the negotiations are unsuccessful and the railroad decides to abandon the corridor, they must also file a consummation notice with the STB

Individual Exemptions

The railroad will file a “Petition of Exemption” if they are seeking an individual exemption. Groups interested in pursuing railbanking will need to file a Certificate of Interim Trail Use (CITU), and the timeline for abandonment in an individual exemption is the same as for class exemptions. The only difference is that the STB retains the right to request further information from third parties in an individual exemption.

[TDowling]

So basically the difference between rail banking and abandonment is that in the former process, the railroad and trail advocacy group or private entity agree on negotiations.