I think a key part of what’s missing from this discussion is the Rails to Trails act covers conversion of an abandoned railroad to a trail that keeps the r-o-w intact for potential future reversion to rail use. That keeps the Federal nexus in place, which would trump state or local laws. The situation here is when a railroad allows another use to occur within its r-o-w that may not be covered or legal given terms of the original grant. Many railroads got caught up in a legal morass a couple years ago when courts ruled they had illegally allowed fiber optic lines to be laid within their r-o-w in violation of the terms of the original grants, at least where Federal lands or grants were involved, as fiber optics did not fall within a railroad related use of the land. I want to say that situation got a quick legislative fix. Doing something here would be more difficult given it looks like we’re dealing with private agreements. This could be a very interesting case.

Jeff Moore
Elko, NV