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Vermont Journal of Environmental Law




Study after study projects that the United States economy will come to rely more and more on freight rail in the twenty-first century. Few would have predicted the industry's reemergence 30 years ago when Congress, alarmed at the mass exodus from railroad and the resulting anemic rail infrastructure due to abandonment, began passing laws that culminated in 1983 with a rail-banking amendment to the National Trail System Act of 1976. The new statute streamlined the transfer of these rail corridors to private groups for safekeeping in the event railroads once again needed to reactivate the corridors. Since then, parks departments, nonprofits, and local transportation authorities have taken full advantage of the available “linear parks,” nationally amassing some 21,000 miles of former freight corridors now used as trails or converted for local use as light passenger rail. Courts, federal officials, and scholars have thoroughly explored the legal questions raised by landowners during the rails-to-trails program's initial legal maelstrom; but surprisingly, little discussion has addressed the legalities of reactivation, which, after all, is the whole premise for the rails-to-trails program. Data tracking freight rail's reemergence suggests corridor-starved rail companies will soon begin reactivating their old lines. But local communities have come to rely on these rail-banked corridors for their transportation and recreational needs. This paper attempts to start a conversation about the legalities of reactivation before offering to trail groups strategies for preserving recreational use even after the freight trains return, an arrangement called rails-with-trails. It also proposes new laws at the state and federal level that might further encourage rails-with-trails.

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Vermont Law School

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