Rails-with-Trails: Lessons Learned

Executive Summary

This report offers conclusions about the lessons learned in the development, construction, and operation of "rails-with-trails" so that railroad companies, trail developers, and others can benefit from the history of trails in existence today. "Rail-with-trail" (RWT) describes any shared use path or trail located on or directly adjacent to an active railroad corridor. About 65 RWTs encompass 385 km (239 mi) in 30 States today. These trails are located adjacent to active rail lines ranging from a few slow-moving short-haul freight trains weekly, to high-frequency Amtrak trains traveling as fast as 225 km/h (140 mi/h). Dozens of RWTs are proposed or planned. While most are located on public lands leased to private railroads, many are on privately owned railroad property. Hundreds of kilometers of RWTs traverse Western Australia, Canada, and Europe.

RWT advocates and railroad company representatives often offer contrasting viewpoints. Trail planners view railroad property, often located in scenic areas with favorable topography, as a better alternative than bike lanes on roadways. They note that legal protections of varying degrees exist in all States, and that a litany of successful RWTs should provide comfort.

Baltimore York RWT, MD

Railroads generally oppose RWTs for the following business reasons: the trails are not related to railroad operations and generally do not generate revenue for the railroads; railroad rights-of-way may be needed for future enhancements to system capacity; poor design or maintenance of trails could lead to increased trespassing, with consequent increases in injuries and deaths; narrowing the railroad's portion of the right-of-way drives up the cost of maintaining track and structures (including complicating safety protection for roadway workers); and significant new populations of pedestrians close to the active track structure may result in additional stress on train crews seeking to ensure the safety of train movements. Railroad company representatives respond to assurances of legal protections by noting that the court system has not yet tested the lease and/or use agreements for existing RWTs. Railroads have borne the burden of litigation for many incidents on their property, even for crashes with at-fault trespassers or automobile drivers who ignored obvious warning systems. Further, they note that the railroad may be determined by civil courts to owe a higher duty of care to trail users than to trespassers, particularly at new, designated crossings.

Policy officials at the U.S. Department of Transportation's Federal Railroad Administration (FRA) have shared the railroads' public safety concerns. They also have pointed out that, for certain main lines, creation of a trail, under circumstances that could foreclose adding additional main line tracks or passing sidings to increase capacity, could result in a constriction of future freight rail service across the Nation or dramatically increased cost as a result of less-than-optimum routing. Nationally, railroads carry the highest percentage of freight of any mode on a "tonnage times distance" basis, and-for the bulk commodities they are well suited to handle-they do so at lower cost than trucks in terms of transportation charges, fossil fuel use, and greenhouse emissions. Although most existing service railroads could never replace the flexibility of trucking, the railroads will remain an essential transportation provider as the economy continues to grow into the future.

In the meantime, public pressure is increasing for railroads to free up space adjacent to rail lines for trail usage, pitting the railroad industry's safety, capacity, and liability concerns against trail proponents' desires to create shared use paths and other trails. This situation gave rise to the need to study the issue of RWTs to determine where they are appropriate, recommend design treatments and management strategies, find ways to reduce liability impacts on the railroad industry, and address other public interest considerations.

Data Collection and Analysis

The data collection and analysis for this study included the following:

• An analysis of existing literature, focused on RWT studies and projects, legal documents, and railroad safety experience.
• Focused case studies of 21 geographically diverse RWT projects representing a variety of railroad and trail characteristics. For each trail, researchers conducted interviews with railroad officials, trail managers, and law enforcement officials. They also gathered data about before-and-after conditions related to safety, trespassing, vandalism, and conflicts.
• Other research topics included the following:
  • Relevant laws and statutes, their effectiveness, and transferability;
  • Relevant legal case studies and precedents;
  • Ownership/use arrangements;
  • Railroad company policies toward RWTs, through a telephone survey of officials;
  • Analysis of current design practices;
  • Operations and maintenance issues, through interviews with train engineers and operations personnel; and
  • Educational efforts underway, through a survey and ongoing discussions with railroad officials, trail managers, and Operation Lifesaver officials.

Process

The proposed Union Pacific RWT is feasible in parts


and must be rerouted in others.
Cupertino, CA


The Reading and Northern Railroad Company found a reduction in illegal dumping after the trail went in. Lehigh River Gorge Trail, Jim Thorpe, PA

This report underwent extensive public review from 1999 to 2002. The input process included the following:

• Ongoing communication with more than 200 interested parties through an e-mail newsletter;
• Release and public review of three drafts (February 2001, December 2001, and April 2002);
• Incorporation of hundreds of comments from interested parties, including railroad officials, trail planners and managers, legal experts, and others;
• A legal symposium in Washington, D.C., (April 2001) for railroad representatives, followed by review and input on the proceedings from that meeting; and
• Presentations at numerous conferences, including the Transportation Research Board (2000 and 2001), Pro Bike/Walk (2000), Rails-to-Trails (2001), five regional Operation Lifesaver conferences (1999-2001), AASHTO (2000), RailVolution (2000 and 2001), and several State bicycle, trail, and pedestrian-focused conferences.

RWT Development Process

The current RWT development process varies from location to location, although common elements exist. Trail advocacy groups and public agencies often identify a desired RWT as part of a bikeway master plan. They then work to secure funding prior to initiating contact with the affected railroad.

The railroad agency or company typically lacks an established, accessible review and approval process. While some RWTs move forward quickly (typically those where the trail development agency owns the land), many more are outright rejected or involve a lengthy, contentious process. RWT processes typically take three to ten years from concept to construction.

Feasibility Review

Trail managers should undertake a comprehensive feasibility analysis of proposed RWTs. An RWT feasibility study should describe the setting, relationship to local planning documents, land ownership patterns, railroad activity, and other information necessary to determine feasibility. The study should identify and evaluate multiple alternative alignments, including at least one that is not on the railroad right-of-way, and determine a preferred alignment.

Assessing Potential Benefits

Identifying potential benefits to railroad companies is crucial to developing a successful RWT. Such benefits may include the following:

• Reduced liability costs;
• Financial compensation;
• Reduced petty crime, trespassing, dumping, and vandalism;
• Reduced illegal track crossings through channelization of users to grade-separated or well-designed at-grade crossings;
• Increased public awareness of railroad company service;
• Increased tourism revenue;
• Increased adjacent property values; and
• Improved access to transit for law enforcement and maintenance vehicles.

Involving the Stakeholders

Involving the railroad and affected agencies early in the process is a common theme heard from surveys and interviews on existing RWTs around the country.

Stakeholders may include:

• Railroad companies, including representatives of real estate, operations, maintenance, and legal departments;
• Railroad customers (businesses that ship by rail or receive shipments by rail that are located on the line segment, such as passenger organizations, transit authorities, and State departments of transportation that may have an interest in funding new service on the line-either on the same tracks or on new tracks built within the right-of-way);
• Utility companies, such as telephone, cable, water, sewer, electric, and gas;
• Law enforcement officials;
• Other adjacent landowners;
• Trail user groups; and
• Transportation, public transit, parks and recreation, and health departments.

Stakeholders should be involved through a technical advisory committee or frequent communication via meetings, newsletters, phone calls, and e-mails.

Capacity Constraints

Trail designers worked with Conrail designers to ensure that their interests were addressed, concurrent to negotiation of the RWT agreement. Schuylkill River Trail. Norristown, PA

Privately-owned Class I railroads (see Appendix A: Definitions) tend to be reluctant to grant non-rail usage of their rights-of-way because loss of right-of-way width at any given location could reduce the ability of the railroad to add main track and sidings necessary to provide increased capacity and serve customer needs across the breadth of their systems. Freight railroads spent the decades of the 1980s and 1990s reducing excess capacity in order to control costs and survive in a competitive marketplace. This has resulted in concentrating more traffic on fewer lines and reducing the options for reaching given markets from other locations (e.g., there are essentially three corridors to the west coast from the Mississippi).

State departments of transportation and area transit authorities may have long-term plans for new service that could be foreclosed by permanent trail improvements on the particular line. To the extent the full width of the right-of-way may be needed for these purposes (including responding to air quality nonattainment requirements), the significant investments that would be required for a trail to cohabit with an active rail line may not be warranted.

It should be noted that the property interest held by railroads at many locations is an easement or similar right subject to an express reversionary interest should the line cease to be used for rail service. In many cases, the purpose for which the railroads hold the easement is to provide for intrastate rail transportation. If a portion of the right-of-way is allocated for trail use, and if this restricts allocation for later railroad demands for increased capacity, that is inconsistent with the purpose of the easement.

Liability

In the context of RWT, liability refers to the obligation of a trail manager or railroad to compensate a person who is harmed through some fault of the trail manager or railroad. Railroads have a number of liability concerns about the intentional location of a trail near or on an active railroad corridor:

• Trail users may not be considered trespassers if a railroad permits trail use within a portion of their right-of-way, and thus the railroad would owe a higher duty of care to trail users.
• Incidents of trespassing and injuries to trespassers will occur with greater frequency.
• Trail users may be injured by railroad activities, such as falling or protruding objects, hazardous materials, or a derailment.
• Injured trail users might sue railroad companies even if the injury is unrelated to railroad operations, incurring expensive legal costs.

The level of railroad company concern is dependent in part on the class of railroad and the type of operations they perform. The Class I railroads' perceived deep financial pockets make them a frequent target of lawsuits, and they see no financial benefits from RWTs that would offset any increased exposure. Transit and tourist train operators may support RWT projects because they often are quasi-governmental entities, with a mission of attracting people to their service. Finally, locally based short-line operators have less reason to be concerned about future track expansion, and may be inclined toward the potential financial rewards of permitting an RWT project along their rights-of-way.

Available Legal Protections

There is a range of options that can reduce railroad liability exposure. These include the following:

• State-enacted recreational use statutes (RUS) and rails-to-trails statutes. All 50 States have RUSs, which provide protection to landowners who allow the public to use their land for recreational purposes. An injured person must prove the landowner deliberately intended to harm him or her. Additionally, about 20 States have enacted specific laws to clarify, and in some cases, limit, adjacent landowner liability. This can range from protecting adjacent landowners from liability to making the RUS for the State specifically applicable to a rails-to-trails program.

Portland's regional government, Metro, acquired the railroad property in the 1990s to allow for RWT development. Future Springwater Corridor Trail Extension, Portland, OR

• Property acquisition. Governments under civil law are treated differently from private landowners due to their unique status as sovereign entities. Many States have recently enacted statutes that limit the amounts or kinds of damages recoverable against governments (Isham, 1986). Public agencies considering RWTs should be prepared to identify financial incentives for a railroad to consider. This may be in the form of land transfers, tax breaks from donated land, cash payments, zoning bonuses on other railroad non-operating property, taking over maintenance of the trail right-of-way and structures, and measurably reducing the liability a railroad experiences.

• Easement and license agreements that indemnify the railroad owner against certain or all potential claims. In most cases, the railroad will retain property control, thus the form of legal agreement will be an easement or license agreement that, to the extent permissible under State law, reduces the railroad's liability exposure. Because of the many jurisdictions that have some involvement in an RWT--including the owner of the right-of-way, the operator of the railroad, and the trail manager(s)--the license or easement agreement should identify liability issues and responsible persons through indemnification and assumption of liability provisions.

• Insurance. Railroads may be concerned that trail users might sue them regardless of whether the injuries were related to railroad operations or the proximity of the trail. In most instances, the trail management entity should provide or purchase comprehensive liability insurance in an amount sufficient to cover foreseeable railroad liability and legal defense costs.

The research team for this report was unable to find a history of crashes or claims on the existing RWTs. There is only one known case of a specific RWT claim (in Anchorage, Alaska). The railroad was held harmless from any liability for the accident through the terms of its indemnification agreement. Research on other relevant cases has found that the State RUSs and other statutes do hold up in court.