Amicus Curiae Brief — Monroe County Commission, Petitioner v. A.A. Nettles, Sr. Properties Limited, et al.

No. 19-386

In the

Supreme Court of the United States

_________

MONROE COUNTY COMMISSION,

Petitioner,

v.

A.A. NETTLES, SR. PROPERTIES LIMITED AND

EULA LAMBERT BOYLES,

Respondents.

_________

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

_________

BRIEF AMICI CURIAE OF

RAILS TO TRAILS CONSERVANCY, ET AL.

IN SUPPORT OF PETITIONER

_________

SARAH M. STOKES

Counsel of Record

BARRY A. BROCK

SOUTHERN

ENVIRONMENTAL LAW

CENTER

2829 2nd Avenue S

Suite 282

Birmingham, AL 35233

(205) 745-3060

sstokes@selcal.org

Counsel for Amici Curiae

ANDREA C. FERSTER

RAILS TO TRAILS

CONSERVANCY

2121 Ward Court, N.W.

5th Floor

Washington, D.C. 20037

(202) 974-5142

aferster@railstotrails.org

i

QUESTIONS PRESENTED

1. Whether the Alabama state courts lacked

subject matter jurisdiction to declare a rail line

abandoned or to entertain a challenge to a valid

order controlling use of the line issued by the

Surface Transportation Board of the United States

(STB)?

2. Whether federal law granting the STB

exclusive jurisdiction over the abandonment of rail

lines and stating that interim trail use shall not be

treated as abandonment, preempts contrary state

law, including the vesting of reversionary property

rights, and mandates reversal of the Alabama

Supreme Court’s ruling?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

INTEREST OF AMICI CURIAE ................................ 1

Rails-to-Trails Conservancy .................................... 1

National League of Cities ........................................ 2

U.S. Conference of Mayors ...................................... 2

Freshwater Land Trust ........................................... 2

Missouri Rock Island Trail ...................................... 2

Alabama Hiking Trail Society ................................. 2

Iowa Natural Heritage Foundation ........................ 2

The Madison County Mass Transit District ........... 4

PeopleforBikes Foundation ..................................... 4

Alabama Bicycle Coalition ...................................... 4

Project for Public Spaces ......................................... 4

STATEMENT OF THIS CASE ................................... 5

A.Legal Background ................................................ 5

B.Factual Background ............................................. 6

SUMMARY OF ARGUMENT................................... 10

ARGUMENT ............................................................. 12

I. The trial court lacked subject matter

jurisdiction. ......................................................... 12

II. The ICCTA and the Trails Act preempted

Alabama state reversionary property rights. .... 14

III. Respondents had other remedies. ............... 17

IV. The Alabama decision poses a threat to the

integrity of the railbanking program and would

iii

threaten future rails and trails, depriving

communities of economic and health benefits. .. 18

CONCLUSION .......................................................... 23

iv

TABLE OF AUTHORITIES

Page(s)

Related Proceedings

Ala. R.R. Co.—Abandonment Exemption—

in Monroe Cty., Ala.,

S.T.B. No. AB 463, ID 235203 (Dec. 17,

2013) .......................................................................7

Complaint to Quiet Title, Nettles, Sr. Props.

Ltd. v. Monroe Cty. Comm’n, No. 51-CV2017-900097 (Ala. Cir. Ct. Aug. 25,

2017) ...................................................................6, 7

Proposed Order, Nettles, Sr. Props. Ltd. v.

Monroe Cty. Comm’n, No. 51-CV-2017900097 (Ala. Cir. Ct. Jan. 10, 2018) ...........................7

Cases

Blendu v. Friends of the Weiser River Trail,

No. Civ. 98-0311–S–BLW, 1999 WL

33944266 (D. Idaho June 10, 1999) ....................17

Chicago & N.W. Transp. Co. v. Kalo Brick

& Tile Co.,

450 U.S. 311 (1981)..............................................12

City of Auburn v. U.S. Gov’t,

154 F.3d 1025 (9th Cir. 1998)........................14, 15

Deford v. Soo Line R.R. Co.,

867 F.2d 1080 (8th Cir. 1989)..............................16

Glosemeyer v. Mo.-Kan.-Tex. R.R.,

879 F.2d. 316 (8th Cir. 1996).........................13, 17

Good v. Skagit County,

17 P.3d 1216 (Wash. Ct. App. 2001) ...................17

v

Grantwood Vill. v. Mo. Pac. R.R. Co.,

95 F.3d 654 (8th Cir. 1996)............................13, 16

Hornish v. King County,

899 F.3d 680 (9th Cir. 2018)..........................16, 17

Interstate Commerce Comm’n v.

Brotherhood of Locomotive Eng’rs,

482 U.S. 270 (1987)..............................................13

Ex parte J.E. Estes Wood Co., Inc.,

42 So. 3d 104 (Ala. 2010) .......................................8

Mobile & Gulf R.R. Co. v. Crocker,

455 So. 2d 829 (Ala. 1984) ...................................14

N.Y. Susquehanna & W. Ry. Corp. v.

Jackson,

500 F.3d 238 (3d Cir. 2007) .................................14

Perez v. Campbell,

402 U.S. 637 (1971)..............................................15

Preseault v. Interstate Commerce Comm’n,

494 U.S. 1 (1990)........................................ 5, 16, 18

Preseault v. United States,

100 F.3d 1525 (Fed. Cir. 1996) ......................16, 17

Reed v. Meserve,

487 F.2d 646 (1st Cir. 1973) ..................................5

Statutes

28 U.S.C. § 2321 ........................................................13

28 U.S.C. § 2342(5)....................................................13

28 U.S.C. § 2344 ........................................................13

Interstate Commerce Commission

Termination Act of 1995 49 U.S.C. §

10501(b)(2) ............................................... 12, 13, 14

vi

National Trails System Act

16 U.S.C. § 1247(d) ................................... passim

Transportation Act of 1920, ch. 91,

41 Stat. 456 ..........................................................12

Regulations

49 C.F.R. § 1152.29 ...................................................16

49 C.F.R. § 1152.29(a)(d) ..........................................13

Other Authorities

2018 Census Estimates, Monroe County,

Alabama, U.S. Census Bureau (last

visited Nov. 6, 2019) ..............................................8

Alta/Greenways, Florida Coast to Coast

Connector, Economic Benefits and

Market Report (2013) ...........................................22

Brian Vanblarcom, Comparing the Costs

and Health Benefits of a Proposed Rail

Trail, 5 J. Pol’y Research in Tourism,

Leisure & Events 186 (2013) ...............................22

Campos, Inc., The Great Allegheny Passage

Economic Impact Study (2007-08) (2009) ...........21

D. Omaha Greer, Recreational Trails: Their

Effect on Property Values and Public

Safety (2000) .........................................................21

David Racca & Amardeep Dhanju, Property

Value/Desirability Effects of Bike Paths

Adjacent to Residential Areas, Ctr. for

Applied Demography & Research, Univ.

of Del. (2006) ........................................................20

vii

FY19 Income Limits Summary,

Birmingham-Hoover, AL HUD Metro

FMR Area, HUD User,

https://www.census.gov/quickfacts/fact/t

able/birminghamcityalabama,centerpoin

tcityalabama,fultondalecityalabama,gar

dendalecityalabama,tarrantcityalabama

/PST045218 (last visited Nov. 6, 2019) .................3

J.M. Bowker et al., The Virginia Creeper

Trail: An Assessment of User

Demographics, Preferences, and

Economics (2004) .................................................21

Obesity Trends (Data), Ala. Dep’t Pub.

Health,

https://www.alabamapublichealth.gov/ob

esity/trends.html (last visited Nov. 6,

2019) .....................................................................22

Olivier Parent & Rainer vom Hofe,

Understanding the Impact of Trails on

Residential Property Values in the

Presence of Spatial Dependence, 51

Annals of Regional Sci. 355 (2013) ......................19

Paul Asabere & Forrest Huffman, The

Relative Impacts of Trails and

Greenbelts on Home Price, 38 J. Real

Estate Fin. & Econ. 408 (2009) ...........................20

Rails-to-Trails Conservancy, Economic

Benefits of Trails and Greenways (2003),

https://www.railstotrails.org/resourceha

ndler.ashx?id=4618 .............................................19

viii

Rails-to-Trails Conservancy, Health and

Wellness Benefits (2004),

https://www.railstotrails.org/resourceha

ndler.ashx?name=health-and-wellnessbenefits-of-trails-andgreenways&id=3070&fileName=Healtha

ndWellness.pdf .....................................................22

Rails-to-Trails Conservancy, Historic

Preservation and Community Identity

(2003),

https://www.railstotrails.org/resourceha

ndler.ashx?name=historic-preservation-communityidentity&id=3074&fileName=tgc_histori

c.pdf ......................................................................22

Rails-to-Trails Conservancy, Rail-Trails

and Safe Communities: The Experience

on 372 Trails (1998) .............................................21

Resource Dimensions, Economic Impacts of

MVSTA Trails and Land Resources in

the Methow Valley (2005).....................................20

Schenectady Cty. Dep’t of Planning, The

Mohawk-Hudson Bike-Hike Trail and

Its Impact on Adjoining Residential

Properties (1997) .................................................20

Seattle Eng’g Dep’t, Evaluation of the

Burke-Gilman Trail’s Effect on Property

Values and Crime (1987) .....................................20

Synergy Group et al., Katy Trail Economic

Impact Report (2012) ...........................................21

ix

Wang et al., A Cost-Benefit Analysis of

Physical Activity Using Bike/Pedestrian

Trails, 6 Health Promotion Practice 174

(2005) ....................................................................22

1

INTEREST OF AMICI CURIAE 1

Rails-to-Trails Conservancy

Section 8(d) of the National Trails System Act

(Trails Act) was enacted by Congress in 1983 for the

dual purposes of preserving our national rail system

and providing public trails. 16 U.S.C. § 1247(d).

Three years later, the Rails-to-Trails Conservancy

(RTC), a non-profit organization, was founded. Now,

with more than 250,570 members and supporters

nationwide, RTC facilitates the preservation of

inactive

rail

corridors

for

future

public

transportation

uses, a process known as

“railbanking.”

RTC has been heavily involved in the

implementation of the Trails Act across the country,

testifying

before

Congress,

commenting

on

regulations and regulatory policy, and providing

information and technical assistance to state and

local jurisdictions on railbanking. RTC has also

participated in numerous interim railbanking

negotiations. Through its “early warning system,”

RTC alerts communities and officials about

railbanking

opportunities

from

railroad

abandonment applications filed with the STB. RTC

has also acted as an interim trail manager to

facilitate rails-to-trails conversions. Additionally,

The parties of record received timely notice of the intent to

file the amicus brief, and consent was granted by both parties.

No counsel for any party authored this brief in whole or in part,

and no person or entity other than the amici curiae and their

counsel made a monetary contribution intended to fund its

preparation or submission.

1

2

RTC maintains a database of rail-trails, which

includes specific information on railbanked trails

gathered through records maintained by the STB

and through direct communications with trail

managers. RTC has a particular interest in the

present case because the Alabama Supreme Court’s

erroneous holding contravenes the text and purpose

of the Trails Act and interferes with RTC’s core

purposes.

National League of Cities

U.S. Conference of Mayors

These membership associations are comprised of

local governments and their elected leaders. Some of

their members have painstakingly worked to create

trails that are maintained or created by local

municipalities. Some members are also in the

process of creating railbanked trails. These trails

provide tremendous economic and health benefits to

the public and are a source of civic pride. These

groups are concerned that the Alabama Supreme

Court decision, if not overturned, will create

uncertainty about the railbanking law.

Freshwater Land Trust

Missouri Rock Island Trail

Alabama Hiking Trail Society

Iowa Natural Heritage Foundation

These groups are nonprofit organizations that

have worked tirelessly to maintain and create

railbanked trails. For instance, the Freshwater Land

Trust (FLT) in Birmingham, Alabama established

and helps to develop the Five Mile Creek Greenway,

3

which includes a rails-to-trails project. The Five Mile

Creek Greenway will traverse five cities along Five

Mile Creek. This trail will be the longest trail in

central Alabama and is projected to become a

significant tourist attraction and resource for the

community. The majority of the cities served by the

Greenway are low-income communities, and as such,

the economic and health benefits generated by the

trail are badly needed. 2 FLT plans to use the Five

Mile Creek Greenway as a model to replicate

throughout the region. However, if the Alabama

Supreme Court’s holding stands, despite the clear

contradictory requirements of the Trails Act, trails

like this will be much harder to create in Alabama.

Similarly, groups across the nation depend on the

Trails Act; the Iowa Natural Heritage Foundation

has helped create at least 48 trail projects totaling

over 865 miles, amounting to 65% of Iowa’s trails.

Approximately 385 miles of these trails have been

railbanked. The railbanked corridors are an

essential part of the overall trail system in Iowa.

Several are part of the proposed Great American

Rail-Trail, a trail that is more than 52% complete

and will connect the west and east coasts of the

United States. Further, the Missouri Rock Island

Trail is in the process of railbanking 144 miles which

will benefit more than 20 communities. In order to

facilitate railbanking, it is vitally important for these

FY19 Income Limits Summary, Birmingham-Hoover, AL

HUD Metro FMR Area, HUD User,

https://www.census.gov/quickfacts/fact/table/birminghamcityala

bama,centerpointcityalabama,fultondalecityalabama,gardendal

ecityalabama,tarrantcityalabama/PST045218 (last visited Nov.

6, 2019).

2

4

groups that this Court reaffirms the federal STB as

the

exclusive

authority

that

determines

abandonment of a railroad line.

The Madison County Mass Transit District

PeopleforBikes Foundation

Alabama Bicycle Coalition

Rail-trails provide excellent opportunities for

biking. The Madison County Mass Transit District, a

governmental organization, has developed 137 miles

of trails and integrates the trail system with its

transit system. (The Mass Transit also preserves rail

corridors for future light rail possibilities.) The

PeopleForBikes Foundation, a national nonprofit

with 1.3 million advocates and supporters that

works to improve bicycle infrastructure in American

communities, and the Alabama Bicycle Coalition

both advocate measures to enhance bicycle safety

and accessibility. These groups have a particular

interest in this case because the Alabama Supreme

Court decision discourages the creation of rail-trails,

which bikers enjoy.

Project for Public Spaces

The Project for Public Spaces is a national

nonprofit organization that helps create and sustain

public spaces that build strong communities. Railtrails are quintessential examples of public spaces

that bring community benefits.

All of the groups and organizations listed above

share a reliance on railbanking and rail-trails to

advance their public missions. The holding of the

Alabama Supreme Court would make railbanking

more subject to litigation and therefore financially

5

riskier. As such, the ruling is antithetical to these

groups’ missions.

STATEMENT OF THIS CASE

A. Legal Background

The federal railbanking law, 16 U.S.C. § 1247(d),

also known as the Trails Act, was enacted in 1983 to

preserve America’s rapidly disappearing railway

corridor infrastructure for potential future rail

service by permitting inactive railroad corridors to

be used on an interim basis as public trails. See

Preseault v. Interstate Commerce Comm’n, 494 U.S.

1, 4-8 (1990) (detailing the history and objectives of

the Trails Act). When a railroad company wants to

cease service through a corridor and the STB

determines that the public interest is served, the

Trails Act creates a mechanism for sponsors to

negotiate with the railroad to buy, lease, or

otherwise obtain the corridor. These sponsors, often

communities, maintain the corridor for future public

transportation use, including rail. This process is

known as railbanking, and without it, these

corridors, which were “painstakingly created over

several generations,” would eventually be sold or

otherwise dismantled. Reed v. Meserve, 487 F.2d 646,

649-50 (1st Cir. 1973). Once fragmented, these

corridors are difficult to put back together, due to

factors such as high costs and a complex regulatory

environment.

Before the Trails Act was enacted, trail sponsors

who agreed to assume responsibility for maintaining

and converting railroad rights-of-way under

easement to trails faced the risk of expensive and

time-consuming litigation challenging their property

6

interests and trail usage. Congress intended to avoid

such difficulties when it passed the Trails Act, which

states that the government “shall encourage State

and local agencies and private interests to establish

appropriate trails,” and to ensure that these

corridors will be kept available for future service if

needed by establishing that “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.” 16 U.S.C. § 1247(d).

B. Factual Background

This case involves a 7.4-mile railroad right-ofway connecting Tunnel Springs, Alabama, to

Beatrice, Alabama. Pet. App. 40a. As required by

federal law, the Alabama Railroad Company sought

permission from the STB to abandon rail service on

the right-of-way in 2013. Id. at 41a. Notice of the

proposed abandonment was published in the Federal

Register on March 21, 2013. Id. at 40a. On March

22, 2013, the Monroe County Commission (the

County) filed a request for a Certificate or Notice of

Interim Trail Use, in lieu of an outright

abandonment. Id. at 42a. The railroad responded on

March 29, 2013 and indicated its willingness to

negotiate for interim trail use. Id. The STB then

issued a Notice of Interim Trail Use (NITU) on April

19, 2013, setting a 180-day period for negotiations

between the railroad and the County. See generally

id. at 40a-46a.

After successful negotiations, the railroad’s rightof-way was conveyed to the County by quitclaim

deed dated December 11, 2013, as corrected on

August 17, 2015. Complaint to Quiet Title at ¶ 5,

7

Nettles, Sr. Props. Ltd. v. Monroe Cty. Comm’n, 51CV-2017-900097 (Ala. Cir. Ct. Aug. 25, 2017). The

County paid $89,000 to the railroad to obtain the

property rights needed to establish an interim trail.

Id. at Ex. C (Doc. 5). As the deed of conveyance

specified, during this interim use, “the property

remains subject to the jurisdiction of the Surface

Transportation Board.” Id. In December of 2013, the

railroad company informed the STB of the interim

trail use agreement and the property transfer to the

County per that agreement. Ala. R.R. Co.—

Abandonment Exemption—in Monroe Cty., Ala.,

S.T.B. No. AB 463 (Sub-No. 1X), ID 235203 (Dec. 17,

2013).

Four years after the agreement for interim trail

use was finalized, A.A. Nettles Sr. Properties

Limited (Nettles) and Dovie Boyles filed a complaint

in the Circuit Court of Monroe County, Alabama

asking the court to quiet title to the corridor in their

favor. Complaint to Quiet Title, Nettles, 51-CV-2017900097, (Aug. 25, 2017). Dovie Boyles (deceased) was

a Florida resident who held an easement on the

property granted by the railroad, which was signed

in 1997. Id. ¶ 2. Nettles, a timber and land company,

held a lease for this land. Id. ¶ 3. In this 2017

Alabama action, the Respondents asked the Monroe

County Circuit Court to quiet title, arguing that the

railroad abandoned the property because the

railroad had not rebuilt a trestle that had been

accidentally burned in 2007. 3 Proposed Order ¶ 5,

Nettles, 51-CV-2017-900097 (Jan. 8, 2018).

Ironically, it was apparently Nettles who had set fire to the

bridge, and the railroad sued him for nuisance, wantonness,

3

8

By order dated January 10, 2018, the Circuit

Court quieted title to the corridor in favor of the

Respondents and ordered a permanent injunction

against further development of the trail. Pet. App.

36a-39a. The trial court ruled the corridor had been

abandoned, terminating the easement and triggering

state law reversionary rights to vest in the

Respondents’ favor. Id. The Alabama Supreme Court

affirmed that decision, reasoning that the STB’s

exclusive jurisdiction over abandonment of the

corridor, and federal preemption on that issue, did

not apply to this “regulation” of the corridor, for

reasons discussed in more detail below. See generally

Pet. App. 1a-20a.

The trail at issue is called “the Mockingbird

Trail.” (Harper Lee, author of the classic novel To

Kill A Mockingbird, resided in this county.) Almost

two miles of the trail have been constructed, along

with a paved parking lot. However, the

Nettles/Boyles property is in the center of the trail

and contains a 840-foot tunnel which is the

centerpiece of the project. The county has already

expended over $500,000 (mostly obtained through

grants) in property acquisition, engineering fees, and

construction costs, in good faith reliance on the legal

protections afforded by the Trails Act. This is a

significant commitment of resources for a county

that has only 21,067 residents, with a median

household income of $26,036. 4 This trail connects

three rural communities as well as the larger town of

and trespass for causing the damage. See Ex parte J.E. Estes

Wood Co., Inc., 42 So. 3d 104, 107 (Ala. 2010).

4

2018 Census Estimates, Monroe County, Alabama, U.S.

Census Bureau (last visited Nov. 6, 2019).

9

Monroeville. The next closest trail destination is 80

miles away, and as such, Monroe County expects

this trail to provide significant and much needed

economic development. The trail has strong support

from local businesses and the Monroeville and

Monroe County Chamber of Commerce. Below is a

picture from Monroe County of a portion of the

finished section of the trail.

10

SUMMARY OF ARGUMENT

The Court should grant certiorari or summarily

reverse the ruling below for several reasons. First,

the Alabama courts lacked subject matter

jurisdiction, both because the issue of abandonment

of a rail line is within the exclusive authority of the

STB and because a binding STB order was issued

years before the Respondents filed suit. Such STB

orders can only be challenged in specified federal

courts. Second, the Alabama Supreme Court’s

rationale for affirming the trial court’s ruling, that

the abandonment ruling and the resulting vesting of

property interests to the Respondents were outside

the scope of federal preemption, was erroneous and

in direct conflict with decades of binding

jurisprudence on the issue. The Alabama Supreme

Court’s decision allowing a quiet title action to

collaterally attack the authority and final decision of

the STB flagrantly flouts well-established principles

of federal law.

Finally, any suggestion that the conversion to

trail use conflicted with the Respondents’

expectations about the nature or scope of the

easement is without merit. The Trails Act was

passed in 1983, and the quitclaim deed from the

railroad granting an easement to Respondent Boyles

was signed in 1997—14 years later. Pet. App. 7. The

bargain struck by Respondents and the railroad was

subject to the federal law in place at the time. The

Respondents had ample notice of the applicability

and effect of that statute.

Monroe County depended on the Trails Act in

good faith, which has succeeded in preserving rail

11

corridors for present and future public use.

Communities in 45 states, including Alabama, have

utilized the Trails Act to preserve rail corridors as

trails and to preserve them for future use. 5 The

United States now has more than 2,151 open railtrails, totaling 24,149 miles. Four hundred of these

rail-trails

were

successfully

railbanked,

encompassing over 5,925 miles; accordingly,

approximately 21% of all rail-trails in the country

are railbanked. Trails such as the 93-mile Lamoille

Valley Rail Trail in Vermont, the 64-mile Caprock

Canyons State Park Trailway in Texas, 40 miles of

the Great Allegheny Passage in Maryland and

Pennsylvania, 200 miles of the Katy Trail in

Missouri; and, Nebraska’s 320-mile Cowboy Line

(the longest recreational rail-trail in the country)

were created from railbanked corridors. Alabama

currently has 28 miles of railbanked corridors, and

several Alabama communities are currently

negotiating with railroads with the goal of

railbanking another 50 miles of trails in the near

future. Importantly, these corridors have also been

preserved for future rail use and transportation

needs. For instance, amicus curiae, the Madison

County Mass Transit District, has railbanked a trail

to use for light rail in the future. However, if the

Alabama Supreme Court decision stands, railbanked

trails and corridors in Alabama and possibly around

the country are at risk. The aberrant decision casts a

cloud of uncertainty that will discourage railbanking

and encourage meritless quiet title claims that

The data in this paragraph comes from Rails-to-Trails

Conservancy’s database, some of which is available at

https://www.railstotrails.org/our-work/united-states/.

5

12

Congress expressly intended to preempt in the Trails

Act.

ARGUMENT

I.

The trial court lacked subject matter

jurisdiction.

The trial court lacked jurisdiction to rule on the

issue of abandonment of a rail line, and the Alabama

Supreme Court should have reversed on that basis.

The Transportation Act of 1920 long ago established

that there can be no abandonment of a rail line

absent a certificate issued by the Interstate

Commerce Commission (ICC) (now the STB). ch 91,

41 Stat 456. This Court has affirmed that principal

unequivocally. See, e.g., Chicago & N.W. Transp. Co.

v. Kalo Brick & Tile Co., 450 U.S. 311 (1981). The

STB’s exclusive jurisdiction over abandonment was

expressly reaffirmed in the Interstate Commerce

Commission Termination Act of 1995 (ICCTA), 49

U.S.C. § 10501(b)(2). It is undisputed that the STB,

the only body with authority to do so, did not issue a

certificate of abandonment of the corridor at issue.

See Pet. App. 1a-20a. The Alabama Supreme Court

tried to skirt these provisions by avoiding use of the

word abandonment, writing instead that under

Alabama law, the right-of-way was “extinguished by

operation of law,” id. at 11a, or “terminated” by

disuse, id. at 12a, prior to issuance of the NITU,

which allegedly left the railroad with no property

rights to convey to the County. No matter how the

Alabama Supreme Court worded it, the trial court

improperly decided that “the Railroad abandoned its

easement when it failed to rebuild the burnt train

trestle.” See id. at 37a. An abandonment finding can

13

only be made by the STB, not a circuit court in

Alabama. 49 U.S.C. § 10501(b)(2).

Second, the trial court lacked subject matter

jurisdiction because the corridor had already been

railbanked when the Respondents filed suit. The

STB’s NITU was entered in April of 2013 pursuant

to 49 C.F.R. § 1152.29(a)(d), four years before the

Respondents filed their quiet title action. Pet. App.

7. A railbanking order can only be challenged by

filing a timely petition for review in the appropriate

federal court of appeals. 28 U.S.C. § 2344. The NITU

was a final order of the STB subject to judicial

review pursuant to 28 U.S.C. § 2321. Federal courts

of appeal have exclusive jurisdiction to review any

challenge to an STB order, 28 U.S.C. § 2342(5), and

such a challenge must be initiated by filing a

petition within 60 days of service or publication of

the order. Id. § 2344; see ICC v. Brotherhood of

Locomotive Eng’rs, 482 U.S. 270, 287-88 (1987)

(setting forth the requirements for challenging ICC

orders).

The Respondents did not file a challenge to the

NITU in accordance with these statutory procedures

and timeframes. Pet. App. 7. Their quiet title action

was an impermissible collateral challenge of the

NITU which should have been dismissed for lack of

subject matter jurisdiction on its face. See

Grantwood Vill. v. Mo. Pac. R.R. Co., 95 F.3d 657,

658, (8th Cir. 1996) (“Although the Village could

have challenged the ICC’s Decision by filing a

petition directly in this court, they failed to do so.

The Village's attacks on the ICC’s Decision are,

therefore, foreclosed.”); see also Glosemeyer v. Mo.Kan.-Tex. R.R., 879 F.2d. 316, 320-21 (8th Cir. 1996)

14

(holding that the district court lacked subject matter

jurisdiction over the plaintiffs’ challenge to the ICC’s

order). Allowing collateral state court challenges of

STB orders without any jurisdictional basis would

defeat the exclusive jurisdiction of the federal courts

granted by Congress and create chaos and

uncertainty as to the STB’s ability to administer the

railbanking system. Review or summary reversal is

therefore appropriate.

II.

The ICCTA and the Trails Act

preempted Alabama state

reversionary property rights.

In addition to conferring exclusive jurisdiction

over abandonment upon the STB, the ICCTA also

provides that any conflicting state law remedies are

expressly preempted. See 49 U.S.C. § 10501(b)(2). In

application, the ICCTA preempts all state laws that

have the effect of managing or governing rail

transportation. See N.Y. Susquehanna & W. Ry.

Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007)

(citation omitted); City of Auburn v. U.S. Gov’t, 154

F.3d 1025, 1030 (9th Cir. 1998). Thus, as the

Alabama Supreme Court has itself previously

recognized, federal preemption applies where

landowners seek a ruling in state court that a

railroad’s easement has been abandoned. See Mobile

& Gulf R.R. Co. v. Crocker, 455 So.2d 829, 834 (Ala.

1984) (holding that the ICC had “exclusive

jurisdiction to determine whether there was an

abandonment of the railroad right-of-way”). The

Alabama Supreme Court should have followed its

own precedent and ruled that the Respondents’

15

claims asserting state law rights of reversion via

abandonment were preempted as a matter of law.

Even though it recognized the STB’s exclusive

regulatory authority over abandonment of rail lines,

Pet. App. 2a-3a., the Alabama Supreme Court

erroneously reasoned that the application of state

property law of reversionary rights in an easement

was not the type of “regulation” covered by the STB’s

authority because it did not constitute an “economic

regulation on rail transportation” and was therefore

outside the scope of the STB’s authority. Id. at 9a.

This rationale is invalid.

Preemption in this context is not limited to

“economic regulation” but is instead much broader.

The Supremacy Clause “invalidates state laws that

‘interfere with or are contrary to, the laws of

Congress.’” Kalo Brick, 450 U.S. at 317 (internal

citation omitted). State law is preempted by federal

regulation whenever it “stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.” Id. (quoting Perez v.

Campbell, 402 U.S. 637, 649 (1971)); City of Auburn,

154 F.3d at 1030 (noting nothing in the case law

supports the idea that Congress, in the ICCTA,

intended preemption to apply only to economic

regulation). Deeming a railroad corridor abandoned,

as the lower courts did, is directly contrary to the

laws of Congress, and a permanent “obstacle” to the

STB’s exclusive jurisdiction granted by Congress.

The Alabama Supreme Court also ignored the

text of the Trails Act in its erroneous ruling. The Act

states that interim trail use “shall not be treated, for

any purposes, of any law or rule of law, as an

16

abandonment of the use of such right-of-way for

railroad purposes.” 16 U.S.C. 1247(d). Therefore, a

NITU decision authorizing interim trail use

“precludes a finding of abandonment of the right-ofway under state law.” Grantwood Vill., 95 F.3d at

659 (affirming dismissal of quiet title action against

a railbanked rail corridor). Thus, the Trails Act

prevents the Respondents’ state reversionary

property rights from vesting when such rights would

terminate the railroad’s easement during interim

use. See Hornish v. King County, 899 F.3d 680, 69596 (9th Cir. 2018) (citing several Federal Circuit

cases supporting its application of that rule). As the

Court has noted previously, this makes interim trail

use

more

like

discontinuance

than

true

6

abandonment. Preseault, 494 U.S. at 8. The power

of the Trails Act “includes power to preempt statecreated property rights, including the rights to

possession of property when railroad easements

terminate.” Preseault v. United States, 100 F.3d

1525, 1537 (Fed. Cir. 1996) (internal citations

omitted).

The Alabama Supreme Court inexplicably

refused to apply this settled principle of law, and

this failure warrants summary reversal or review to

protect the integrity of the Trails Act. If allowed to

A railbanking order continues until the STB modifies or

revokes the interim trail certificate or notice pursuant to 49

C.F.R. § 1152.29, which never happened in this case. And then

state law claims to the right of way may only be brought after

the STB has authorized abandonment and after the railroad

has consummated that abandonment authorization. See Deford

v. Soo Line R.R. Co., 867 F.2d 1080, 1089-90 (8th Cir. 1989)

(documenting the process).

6

17

stand, this decision will set Alabama apart from

every other jurisdiction in the country on this issue.

Many other jurisdictions besides the ones already

cited have acknowledged the preemptive effect of the

federal railbanking law and dismissed similar quiet

title actions as being contrary to the plenary and

exclusive jurisdiction of the STB over federally

railbanked corridors. See, e.g., Glosemeyer, 879 F.2d

at 317 (8th Cir. 1989); Good v. Skagit County, 17

P.3d 1216, 1219 (Wash. Ct. App. 2001); Blendu v.

Friends of the Weiser River Trail, Inc., No. Civ. 980311–S–BLW, 1999 WL 33944266 (D. Idaho June 10,

1999). If upheld, the erroneous decision would create

a statewide gap in our national rail corridor system

and potentially encourage other state courts to

follow Alabama’s rogue decision.

III.

Respondents had other remedies.

While federal law precludes reversion without the

STB authorized abandonment, other remedies were

or are available to the Respondents. The

Respondents could have challenged the order in STB

proceedings. See Kalo Brick, 450 U.S. at 323. Also as

discussed above, they could have challenged the

NITU order in an appropriate federal court of

appeals. Additionally, they may pursue a claim in

the United States Court of Federal Claims to secure

compensation for any “taking” of their reversionary

property interests. See Hornish, 899 F.3d at 695-96

(surveying the law on the issue). See generally

Preseault, 100 F.3d at 1529-30.

18

IV.

The Alabama decision poses a threat

to the integrity of the railbanking

program and would threaten future

rails and trails, depriving

communities of economic and health

benefits.

Congress sought to preserve America’s rapidly

disappearing rail corridors for future rail use and so

allowed communities to create trails to preserve

these corridors. Preseault, 494 U.S. at 5-6. Acquiring,

designing, and building a rail-trail can be a lengthy,

complicated, and expensive process. The costs of

converting a railroad corridor to a public trail

include acquisition from the railroad, design,

environmental and historic due diligence and

compliance, and construction of the trail and trailrelated facilities. Post-conversion, trails also incur

recurring operational and maintenance costs.

Congress recognized that the success of

railbanking depends on a trail sponsor’s willingness

to make the significant investments required for a

rails-to-trails conversion. The Trails Act eliminates a

significant

disincentive

for

making

those

investments: legal challenges to rails-to-trail

conversions rooted in state property law. Congress

concluded that previous efforts to preserve rights-ofway through trail conversion “ha[d] not been

successful” because none of them affected the

operation of state property law, which often

automatically extinguished the railroad’s interest in

the right-of-way and disposed of corridor property

long before transfer to a trail sponsor could occur. Id.

at 6 (citation omitted). Therefore, the Trails Act

expressly preempted state law reversionary interests

19

premised upon abandonment of rail operations from

vesting when interim trail use is approved. This

allowed for a uniform application of the law among

the states. A uniform Trails Act creates certainty

that allows communities, such as many represented

here, to form trails that cross state lines.

According to RTC’s trails database, 21.5% of all

open rail-trail mileage consists of railbanked

corridors, including treasured long-distance trails

such as Missouri’s Katy Trail and Nebraska’s

Cowboy Trail. Without railbanking, many of these

trails, along with their attendant benefits, would not

exist. The development of a rail-trail offers

numerous benefits to the public and to surrounding

communities. Although Alabama Supreme Court

Justice Parker speculated in his dissent that the

landowner “may be stuck with increased crime from

those using the trail, loss of privacy, [and] decrease

in property values,” Pet. App. 27a (citation omitted),

this notion is not supported by empirical data.

Instead, study after study demonstrates that

property adjacent to rail-trails usually increases in

value more than similar property not adjacent to a

trail. 7 Most recently, two professors at the

University of Cincinnati found that “proximity to

trail entrances positively effects property values.”8

7 For an overview of such studies, see Rails-to-Trails

Conservancy, Economic Benefits of Trails and Greenways,

https://www.railstotrails.org/resourcehandler.ashx?id=4618

(last visited Nov. 6, 2019).

8

Olivier Parent & Rainer vom Hofe, Understanding the

Impact of Trails on Residential Property Values in the Presence

of Spatial Dependence, 51 Annals of Regional Sci. 355, 355

(2013).

20

In San Antonio, Texas, a study showed that trails

and greenways are associated with a two to five

percent price premium. 9 In New Castle County,

Delaware, homes within 50 meters of bike paths

commanded a four percent price premium. 10 In rural

Methow Valley, Washington, homes within onequarter mile of trails benefited from an 11% change

in real sale price. 11 A thorough literature review of

more than twenty studies found that “the presence of

a bike path/trail either increases property values

and ease of sale slightly or has no effect . . .

Opponents to bike path and trail projects often say

that property values will be adversely affected but

there is not much evidence of this.” 12

Research also shows that those who initially

oppose a trail prior to construction generally find the

trail to be a better neighbor than they anticipated. In

Seattle, Washington 13 and upstate New York, 14

adjacent property owners were concerned about

trail-related crime before the trail was built, but

researchers found no change in crime rate after the

Paul Asabere & Forrest Huffman, The Relative Impacts of

Trails and Greenbelts on Home Price, 38 J. Real Estate Fin. &

Econ. 408-19 (2009).

10

David

Racca

&

Amardeep

Dhanju,

Property

Value/Desirability Effects of Bike Paths Adjacent to Residential

Areas, Ctr. for Applied Demography & Research, Univ. of Del.

20-21 (2006).

11 Resource Dimensions, Economic Impacts of MVSTA Trails

and Land Resources in the Methow Valley 107 (2005).

12 Racca, supra note 17, at 22.

13 Seattle Eng’g Dep’t, Evaluation of the Burke-Gilman Trail’s

Effect on Property Values and Crime 3 (1987).

14 Schenectady Cty. Dep’t of Planning, The Mohawk-Hudson

Bike-Hike Trail and Its Impact on Adjoining Residential

Properties 18 (1997).

9

21

trail was built. In fact, RTC has obtained data from

372 trails and found that crime on the trails

occurred at a fractional rate compared to the

national average. 15

Rail-trails have consistently brought economic

and health benefits to the communities where they

are built. For example, business owners on the Great

Allegheny Passage indicate that 25% of their gross

revenue was directly attributed to trail users and

two-thirds reported that they experienced some

increase in gross revenue because of their proximity

to the trail.16 The total economic impact of the

Virginia Creeper Trail is estimated at $1.59 million,

and the trail supports approximately 27.4 new full

time job equivalents. 17 The Katy Trail in Missouri

generates over $18 million annually in local

revenue. 18 In Dunedin, Florida, after a former CSX

rail line was transformed into the Pinellas Trail, the

downtown went from a 30% storefront vacancy rate

to a 95% storefront occupancy, as new businesses

emerged to serve the people drawn to the

Rails-to-Trails Conservancy, Rail-Trails and Safe

Communities: The Experience on 372 Trails (1998); see also D.

Omaha Greer, Recreational Trails: Their Effect on Property

Values and Public Safety (2000).

16 Campos, Inc., The Great Allegheny Passage Economic Impact

Study (2007-08) 16 (2009).

17

J.M. Bowker, et al., The Virginia Creeper Trail: An

Assessment of User Demographics, Preferences, and Economics

28 (2004).

18 Synergy Group et al., Katy Trail Economic Impact Report 6

(2012).

15

22

recreational opportunities of the trail.19 Alabama

should be able to reap these same benefits.

Trails also provide abundant health benefits.

Adjacent property owners to a trail are normally its

most avid users, and derive benefits from the

attendant health and wellness results of regular

exercise. 20 A study in Nebraska found that every

dollar invested in trails for physical activity led to

$2.94 in direct medical benefits. 21 In Nova Scotia, a

professor of economics found that the total annual

value of increased physical activity expected to arise

from a proposed trail was approximately $456,000

($2.88 per trip). 22 Inspiring more physical activity is

especially important in Alabama, which has the

fifth-highest obesity rate in the nation. 23

Alta/Greenways, Florida Coast to Coast Connector, Economic

Benefits and Market Report 8-9 (2013).

20 Two works of research conducted by RTC show this: Rails-toTrails Conservancy, Health and Wellness Benefits (2004),

https://www.railstotrails.org/resourcehandler.ashx?name=healt

h-and-wellness-benefits-of-trails-andgreenways&id=3070&fileName=HealthandWellness.;

and

Rails-to-Trails Conservancy, Historic Preservation and

Community

Identity

(2003),

https://www.railstotrails.org/resourcehandler.ashx?name=histo

ric-preservation--communityidentity&id=3074&fileName=tgc_historic.pdf

21

Wang et. al, A Cost-Benefit Analysis of Physical Activity

Using Bike/Pedestrian Trails, 6 HEALTH PROMOTION PRACTICE

174 (2005).

22 Brian Vanblarcom, Comparing the Costs and Health Benefits

of a Proposed Rail Trail, 5 J. Pol’y Research in Tourism,

Leisure & Events 186 (2013).

23 Obesity Trends (Data), Ala. Dep’t Pub. Health,

https://www.alabamapublichealth.gov/obesity/trends.html (last

visited Nov. 6, 2019).

19

23

The Alabama Supreme Court decision not only

defies the U.S. Constitution and federal law, it

deprives municipalities and counties across the state

of a critical tool to help create these benefits for their

residents.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari or summarily

reverse the decision below.

Respectfully submitted,

ANDREA C. FERSTER

GENERAL COUNSEL

RAILS-TO-TRAILS

CONSERVANCY

2121 Ward Court, N.W.

5th Floor

Washington, D.C. 20037

(202) 974-5142

aferster@railstotrails.org

NOVEMBER 12, 2019

SARAH M. STOKES

Counsel of Record

BARRY A. BROCK

SOUTHERN

ENVIRONMENTAL

LAW CENTER

2829 2nd Avenue S

Suite 282

Birmingham, AL

35233

(205) 745-3060

sstokes@selcal.org