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Condemnation of Railroad Property

The Illinois Department of Transportation requested a survey of the other states regarding condemnation of railroad property.

Pursuant to Illinois statute, before Illinois DOT condemns railroad property in county courts, Illinois DOT must secure the approval of the Illinois Commerce Commission. Sometimes this approval requires a contested hearing before the commission.

A few days prior to a scheduled Illinois Commerce Commission hearing, a
railroad filed an affirmative defense and stated that the federal Surface Transportation Board had exclusive jurisdiction over the condemnation proceeding and, therefore, the Illinois Commerce Commission has no authority to grant its approval. Such an action, of course, has delayed the state's acquisition of the property and the subsequent
construction project.

Have other DOTs encountered similar railroad tactics?
If yes, how did you address those tactics and what were the results?
If yes, can you provide citations to case law (either federal or state) that you used in support of your argument?

ALABAMA

We treat railroads just like any other property owner. As far as I know they have never raised any federal Surface Transportation Board issue.

ALASKA

The Alaska Railroad (ARR) is full-service railroad serving ports and communities from the Gulf of Alaska to Fairbanks. Owned by the State of Alaska since 1985, the Railroad is governed by a seven-member Board of Directors appointed by the Governor of Alaska.

In order to acquire land in fee from the ARR, DOT must have the permission of the Alaska State Legislature; I don't think thats ever happened. Instead, DOT acquires necessary project property through negotiations, using a "joint use agreement" between DOT and the ARR.

ARIZONA

This is in response to your inquiry concerning condemnation of railroad property.

The Arizona Department of Transportation does acquire right of way from railroads from time to time. We do not acquire in fee, but acquire an easement. This is per agreement / accommodation with the railroads. We have not had a condemnation of railroad property for many years, and the only such condemnation of memory was litigated only on compensation, as the railroad did not challenge ADOT's authority to condemn. We do not have to go through a third party in order to initiate condemnation of railroad property, as sited in the Illinois example. The action would be handled by our Attorney General's office as any other eminent domain case. Our lack of recent experience in this area limits our ability to comment on the railroads' current position or amount of sophistication in responding to an eminent domain action today.

ARKANSAS

Arkansas has not encountered this problem with the railroads we have condemned.

CALIFORNIA

No. The question of Authority is an interesting one though. Since we do not propose to interfere with Interstate Transportation then I don't think the State Transportation Board (STB) would get involved. The RR could always make an argument before the STB, and it would take some time (Months) to resolve.

The California Public Utility Commission (CPUC) only gets involved in reviewing the Safety of the alterations / improvements / new construction at road / RR intersections, not on the right to take.

You are correct that the CPUC does not have prescriptive jurisdiction over takings. Interesting questions indeed. With respect to the STB, the current trend is to restrict the formerly expansive reading of the Commerce Clause, but the contection is moving very slowly: a RR could probably argue successfully that interstate commerce is implicated.

GEORGIA

The Surface Transportation Board determined that not all eminent domain actions filed against a railroad are impermissible. That "rather routine, non-conflicting uses, such as non-exclusive easements for at-grade road crossings, wire crossings, sewer crossings, etc., are not preempted so long as they would not impede rail operations or pose undue safety risks." See Discussion And Conclusions from a March 2, 2004 Surface Transportation Board Decision. Case title: Mumee & Western Railroad Corp and RMW Ventures LLC - Petition For Declaratory Order.

We condemned a railroad and was hit with the same charge from their attorney which was their basis for a request to set aside our action. Our acquisition involved several at grade crossings and drainage easements. After our attorney presented the above referenced decision to their attorney, they backed off their set aside and are now working with us towards a settlement.

IDAHO

By statute the Idaho Transportation Department must initiate contested cases to acquire land from railroads through the Idaho Public Utilities Commission which acts as an administrative hearing body. The Department has never elected to do this choosing instead to reach a negotiated settlement. Should a hearing take place and either party contest the outcome the next step would be either a trial de novo or appeal before
an Idaho district court. The issue of state versus federal jurisdiction for railroad condemnations has not been reached

KENTUCKY

The Commonwealth has never had to condemn a parcel of land from any Railroad.

MARYLAND

We treat railroads the same as any other property owner. However, on an operating railroad we work with the railroad to maintain traffic.

MASSACHUSETTS

In Massachusetts when we take from an active rail line we relocate the line and acquisition of abandoned lines are not contested.

MINNESOTA

Minnesota is not required to seek approval of a state commerce commission prior to condemning railroad property. We try to avoid condemning railroad property, but do bring such actions in state court. The railroad has just recently raised defense of preemption by federal law and the authority of the federal Surface Transportation Board. We are just in the process of addressing this tactic.

NEBRASKA

Nebraska does not require any such approval from another State Agency before instituting condemnation.

NEW YORK

New York State is not a condemnation state, we acquire ROW by appropriation.
Therefore, we do not experience the problems you describe. Railroad acquisitions are not handled differently than acquisitions from other property owners.

Any necessary acquisitions of property from Railroads would be included in the normal approval process of the project (public hearing (EDPL), environmental impact (SEQRA/NEPA), project approval, etc.

In NYS we obtain approval for the project, appraise the property, extend the offer and acquire (appropriate) the necessary properties. We do not condemn properties.

NEVADA

Nevada does not have this issue with the Railroad.

NORTH DAKOTA

North Dakota takes possession of the property upon making an offer to purchase and by depositing the amount of such offer with the clerk of district court of the county wherein the right of way is located. The clerk is required to immediately notify the owner of such deposit. The owner then has 30 days to appeal. The owner then can appeal to the court in the manner provided by law, and may have a jury trial, unless a jury be waived, to determine the damages.

OHIO

Ohio has not experience a similar tactic from the RR's on their acquisitions. We do have similar statues that govern exactly how a RR appropriation is to be processed, and it is a very complex and time consuming process. For that reason we try to find any way possible to keep from filing on active rail lines. We would be very interested in hearing how this all plays out in Illinois.

SOUTH CAROLINA

South Carolina has not had to condemn any railroad property recently.

UTAH

Utah hasn't experienced this. But, for the first time, the RR is now claiming big $$ for aerial easements over its tracks.

VERMONT

Have other DOTs encountered similar railroad tactics?

Vermont has not encountered any similar tactics; the law pertaining eminent domain makes no distinction for railroads.

WASHINGTON

We have not taken a railroad to court in Washington State in the last 25 years. Sorry that we can't help -- but I would be interested in knowing the result of your court action.

WISCONSIN

I am not aware of a Wisconsin procedure or requirement to receive a similar type of approval prior to commencing an eminent domain process for railroad land. The Office of the Commissioner of Railroads here does not have such a process. However, under the normal eminent domain process, the railroad or any landowner has the right within 20 days of receiving the jurisdictional offer to challenge the State's right to condemn the property. It sounds as if, in the Illinois case, this is basically what the railroad has done, but through the Illinois Commerce Commission there. Even though Wisconsin does not have the same procedure as in Illinois, the railroad's contention that the federal STB has exclusive jurisdiction over condemnation of railroad land could still be made here. The railroad would make the same contention within the 20 day period. But, since WisDOT has not attempted to condemn railroad land in the past five years, we have limited similar experience. WisDOT did attempt to condemn a railroad in the Hwy. 13 – Marshfield project, but was prevented from doing so due to the project requirement to relocate tracks. So, there are provisions under federal law governing the right of States to condemn railroad land. However, those federal provisions will probably not apply to every case situation as the survey question seems to imply the railroad is asserting in Illinois. We need more information about the Illinois project and case to know whether we have had a similar situation.

Updated: 09/05/2014
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