Private Property Rights vs. Public Use- The Ongoing Debate

train

“I hear the train a comin’, It’s rolling round the bend
And I ain’t seen the sunshine since I don’t know when” – Johnny Cash

Tunnel Springs, Monroe County, Alabama

On December 10, 2013, the Monroe County Commission approved a resolution authorizing the county to purchase a 7 mile strip of abandoned railway property from Pioneer Railcorp. The property, which is more than 80 acres, was appraised for $142,000 and the purchase price was $89,000. The Monroeville/Monroe Economic Development Authority secured a grant from the Alabama Department of Economic and Community Affairs for 80% of the purchase price and the remainder was provided by a private trust contribution. At the meeting, Glen Haab, MMEDA’s Executive Director said a recreational trail will be built on the property.

On April 8, 2014, the Commission indicated that it was applying for an additional $500,000 grant from ADECA to continue work on the project that was characterized as a “biking/walking” trail along the abandoned railroad in the Tunnel Springs community.
Probate Judge (and presiding officer of the Commission) Greg Norris said the county would be required to provide a 20% match ($100,000) and the matching funds would come from “private funds.” The funds would be used to construct an asphalt trail along the right of way. The trail will reach the mouth of the railroad tunnel, but not enter the tunnel at this time. When complete, the project will continue through the tunnel and on to Beatrice.

On April 24, 2014, The Monroe Journal reports that the Commission was honored earlier this month by the Alabama Trails Commission for its exemplary work on the proposed Tunnel Springs Rail Trail in North Monroe County. Commission Chairman Greg Norris was quoted “We are excited about the Tunnel Springs Rail Trail and the outdoor recreational impact it will have on Monroe County and Southwest Alabama.”

The Journal article states that “the project will offer runners, walkers and bicyclists access to scenic and historic areas that have been inaccessible for years. One of the most unique landmarks associated with this project is the rail tunnel, which is only accessible by the proposed trail and provides an enormous opportunity for the historic preservation of this unique asset.” The article goes further, “this tunnel along with three wooden trestles and numerous fields, forest lands and streams is geared to draw outdoor recreational enthusiasts from across Alabama and the southeastern United States.” (Emphasis added)

Unfortunately, these “numerous fields, forest lands and streams” are not part of the project footprint. In fact they are owned by private landowners that are not enthusiastic about having their property invaded by the public.

On July 3, 2014, the Monroe Journal reports that Judge Norris called a press conference to announce that the Commission has been awarded a $400,000 grant to complete the first phase of a walking/biking trail at Tunnel Springs. The grant requires a 20% match of $80,000 through the Federal Transportation Alternatives Program (TAP Grant). Norris stated that private funds, not taxpayer money, will cover the $80,000 match.

The Alabama Trails Commission was established by Act 2010-585 during the 2010 Regular Session of the Alabama Legislature. HB376 was sponsored by then Representative (now Senator) Cam Ward and directs that the Commission be established within ADECA. The Recreational Trails Program (RTP) is funded by the U.S. Department of Transportation and provides funding assistance to federal agencies, states and local governments for the development and improvement of recreational areas such as walking, jogging, cycling, skating, backpacking, horseback riding and off-highway vehicle trails.

The federal Transportation Equity Act for the 21st Century established a vehicle for distributing financial assistance to the states for the purpose of providing and maintaining recreational trails. Section 1112(c)(2) of the Act requires that each state establish “a recreational trail advisory board on which both motorized and non-motorized trail users are represented…”

According to the ADECA website, “the purpose of the Alabama Trails Commission is to make Alabama a nationally recognized destination for hiking, biking, running, horseback riding, motorized off-highway vehicles and water sports by residents and visitors alike. It employs a ground-up, statewide coordinated approach fostering vigorous participation by local, regional, state and federal agencies, stakeholders, higher education centers and non-profit organizations. The ultimate framework would link trails with people; people with their communities; and explorers of all ages with Alabama’s wild places.”

The “Rails to Trails” program has not been without controversy. In March, 2014, the Wall Street Journal reported that the United States Supreme Court sided with landowners in Wyoming. During America’s westward expansion in the 19th century, Congress gave public land to private railroads to spur development of a transcontinental transportation network. In 1996, a railroad in Wyoming became abandoned and tore out the tracks. The U.S. Forest Service then sought to use the rights of way- which passed through a national forest and 31 parcels of private land- for public trails. All but one property owner acquiesced to the plan; Marvin Brandt, whose 83 acre property was the largest, and one associated with his family since his father began working at a local sawmill in 1939.

The government argued that when the railroad ended operations, some property rights reverted to the government, like using the right of way for a trail. The Court, relying on a 1942 case, rejected the government’s argument stating that Congress only granted the right of easement and nothing more. The Justice Department is now defending more than 90 lawsuits challenging Rails-to-Trails projects involving 10,000 properties in 30 states, amounting to aggregate claims in the hundreds of millions of dollars.

The Monroe County project is different in that the railroad held a “fee simple” ownership of the property as opposed to an easement. Therefore, it appears that the railroad has the right to transfer its ownership interest to the county (note: this issue is still not completely determined at this time).

There are several unanswered questions-

First, is the proposed trail limited to the 7 mile purchase from Tunnel Springs to Beatrice?

Second, where will the $80,000 match, supposedly from private sources, come from?

Third, what is the total project cost for the 7 mile stretch? According to the Monroe Journal report, the grant appears to fund only “Phase One” which extends from the Tunnel Springs community to the mouth of the historic tunnel. Where will the additional funds come from that will be needed to address the other “phases” of the project?

Fourth, what is the County going to do to address issues that adjacent property owners have with the project. By its own admission, the County intends for this project to provide unique access to “numerous fields, forest lands and streams and is geared to draw outdoor recreational enthusiasts.” Heretofore, this has been private property. Does the county expect that this project will somehow not interfere with these landowners right to quiet enjoyment of their property?

Stay tuned….we will continue to monitor events in Monroe County. Not only does this issue affect our landowner members in this particular instance but also because the Rails-to-Trails program could have similar impact in other parts of the State.

 

3 thoughts on “Private Property Rights vs. Public Use- The Ongoing Debate

  1. Not thought through by the local government at all. Landowners not asked for input. Lots of issues – no answers.

    There is a very similar issue going on with the RTT proposal between Andalusia and Geneva. Forever Wild is considering purchasing the 42 mile rail ROW. I don’t think this should be in FW’s scope. Thanks for the insight.

  2. Thanks to AFA for shining the light on this problem. As a landowner who is heavily impacted by this proposed trail, I am totally opposed to it as are at least 95% of the local taxpayers that I have discussed this with. It appears to me that the county elected officials have not given any thought to how they will fund the cost of maintaining such a trail nor do they realize the problems that they will create with a trail in the proposed remote location. Bad plan in many ways.

  3. What has happened with this case? They are expanding rails-to-trails in Eufaula and it impacts our timber land – through the middle of 270 acres. Who are the lawyers representing the landowners?

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