HEARING ON H.R. 2438, AND H.R. 1995

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC

LANDS

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

H.R. 2438

TO ENCOURAGE THE ESTABLISHMENT OF APPROPRIATE TRAILS ON ABANDONED RAILROAD RIGHTSOF-WAY, WHILE ENSURING THE PROTECTION OF

CERTAIN REVERSIONARY PROPERTY RIGHTS

H.R. 1995

TO PROVIDE FOR THE PROTECTION OF FARMLAND

AT THE POINT REYES NATIONAL SEASHORE, AND

FOR OTHER PURPOSES

OCTOBER 30, 1997, WASHINGTON, DC

Serial No. 105–76

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS

JAMES V. HANSEN, Utah, Chairman

ELTON, GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

WAYNE T. GILCHREST, Maryland

RICHARD W. POMBO, California

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

JOHN B. SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

RICK HILL, Montana

JIM GIBBONS, Nevada

ENI F.H. FALEOMAVAEGA, American

Samoa

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

FRANK PALLONE, JR., New Jersey

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

WILLIAM D. DELAHUNT, Massachusetts

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

ALLEN FREEMYER, Counsel

P. DANIEL SMITH, Professional Staff

LIZ BIRNBAUM, Democratic Counsel
(III)

C O N T E N T S

Page

Hearing held October 30, 1997 ............................................................................... 1

Statements of Members:

Boxer, Hon. Barbara, a Senator in Congress from the State of California,

prepared statement of ................................................................................... 4

Christian-Green, Hon. Donna M., a Delelgate in Congress from the Territory of the Virgin Islands, prepared statement of ...................................... 22

Faleomavaega, Hon. Eni F.H., a Delegate in Congress from American

Samoa ............................................................................................................ 3

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 1

Prepared statement of ............................................................................... 2

Hefley, Hon. Joel, a Representative in Congress from the State of Colorado, prepared statement of ......................................................................... 5

Ryun, Hon. Jim, a Representative in Congress from the State of Kansas .. 7

Prepared statement of ............................................................................... 10

Vento, Hon. Bruce, a Representative in Congress from the State of Minnesota ............................................................................................................. 5

Woolsey, Hon. Lynn, a Representative in Congress from the State of

California ....................................................................................................... 12

Additional material submitted for the record by .................................... 307

Statements of witnesses:

Ackerson, Nels, Attorney, The Ackerson Group ............................................. 37

Prepared statement of ............................................................................... 99

Allen, Richard, Landowner .............................................................................. 54

Prepared statement of ............................................................................... 130

Berner, Robert, Executive Director, Marin Agricultural Land Trust .......... 65

Prepared statement of ............................................................................... 143

Borello, Judy, Rancher ..................................................................................... 78

Prepared statement of ............................................................................... 157

Coletti, Mary, Rancher ..................................................................................... 75

Prepared statement of ............................................................................... 153

Additional material submitted for the record by .................................... 216

Cummiskey, Vicki, Mayor, city of Ottawa, Kansas, prepared statement

of ..................................................................................................................... 177

Doughty, Sharon, Dairy Rancher .................................................................... 66

Prepared statement of ............................................................................... 145

Furlong, Donna, Rancher ................................................................................. 77

Prepared statement of ............................................................................... 155

Glosemeyer, Jane, Landowner ......................................................................... 41

Prepared statement of ............................................................................... 113

Hodgson, Hon. Janice, Mayor, City of Garnett .............................................. 53

Prepared statement of ............................................................................... 127

Kinsey, Steve, Supervisor, Fourth District, County of Marin ...................... 63

Prepared statement of ............................................................................... 141

Kitay, Evelyn, Senior Trial Attorney, Office of the General Counsel, Surface Transportation Board ........................................................................... 26

Prepared statement of ............................................................................... 93

McIntyre, Amelia J., Legal Counsel, city of Garnett, prepared statement

of ..................................................................................................................... 165

Newman, Bill, Vice President and Washington Counsel, Conrail ................ 56

Prepared statement of ............................................................................... 136

Norton, Edward, Board Member, National Trust for Historic Preservation ................................................................................................................. 51

Prepared statement of ............................................................................... 117
Page

IV

Statements of witnesses—Continued

Pozzi, Martin and Sally, Ranchers .................................................................. 73

Prepared statement of Mr. Pozzi ............................................................. 150

Stevenson, Kate, Associate Director, Cultural Resource Stewardship and

Partnerships, The National Park Service ................................................... 24

Prepared statement of ............................................................................... 84

Welsh, Richard, Executive Director, National Association of Reversionary

Property Owners ........................................................................................... 39

Prepared statement of ............................................................................... 109

Woodbury, Howard, Landowner ...................................................................... 42

Prepared statement of ............................................................................... 115

Additional material supplied:

Point Reyes National Seashore, California .................................................... 179
(1)

HEARING ON H.R. 2438, TO ENCOURAGE THE

ESTABLISHMENT OF APPROPRIATE TRAILS

ON ABANDONED RAILROAD RIGHTS-OF-WAY,

WHILE ENSURING THE PROTECTION OF

CERTAIN REVERSIONARY PROPERTY

RIGHTS AND

H.R. 1995, TO PROVIDE FOR THE PROTECTION

OF FARMLAND AT THE POINT REYES NATIONAL SEASHORE, AND FOR OTHER PURPOSES

THURSDAY, OCTOBER 30, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS, COMMITTEE ON RESOURCES, Washington, DC

The Subcommittee met, pursuant to notice, at 10 a.m., in room

1324, Longworth House Office Building, Hon. James V. Hansen

(chairman of the Subcommittee) presiding.

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF UTAH

Mr. HANSEN. The Committee will come to order.

Good morning and welcome to the hearing. Today we will hear

testimony on two bills. One amends the National Trails System

Act, and the other provides protection to farmlands in California.

We are pleased to have two Members of Congress to testify on

these bills, along with the other witnesses.

I would like to welcome Congressman Jim Ryun, who will explain H.R. 2438, and Congresswoman Lynn Woolsey, who will explain H.R. 1995.

Before these hearings, however, I need to proceed with the legislation markup of H.R. 2186.

[Whereupon, at 10:02 a.m., the Subcommittee proceeded to other

business.]

Mr. HANSEN. Let’s see—we’ll now go back to the legislative hearing.

H.R. 2438 was introduced by Congressman Jim Ryun of Kansas

to establish appropriate trails on abandoned railroad rights-of-way.

This bill will amend the National Trails System Act to ensure protection of private property rights on lands which once held an active railroad easement and modifies the language in the existing

Act to allow other uses, but still retains the recreational use where
2

it is appropriate. H.R. 2438 also assures that State laws regarding

railroad easements and rights-of-ways will not be preempted by

Federal statute.

The second bill the Committee will hear today is H.R. 1995, the

Point Reyes National Seashore Farmland Protection Act of 1997,

introduced by Mrs. Woolsey of California.

This bill creates a farmland protection area in Marin and

Sonoma—is that how you pronounce that—Sonoma Counties—is

that right, Lynn?

Ms. WOOLSEY. That’s correct.

Mr. HANSEN. [continuing] in California, consisting of 38,000

acres of privately owned land by expanding the existing boundary

of the Point Reyes National Seashore. This bill is opposed by some

people here who will give their objection to it. There is also the concern of acquisition of development easements by the Secretary of

the Interior. This legislation could set a precedent, and I would

hope that members would take a close look at both bills.

I will now recognize my distinguished colleague from American

Samoa for any opening remarks he may have.

[The prepared statement of Mr. Hansen follows:]

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF UTAH

Good morning everyone and welcome to the hearing. Today we will hear testimony on two bills. One amends the National Trails System Act and the other provides protection to farm land in California. We are pleased to have two Members

of Congress to testify on these bills, along with the other witnesses.

I would like to welcome:

Congressman Jim Ryun who will explain H.R. 2438 and, Congresswoman Lynn

Woolsey who will explain H.R. 1995

But before these hearings however, I need to proceed to the legislative markup

of H.R. 2186. I would like to begin by saying that Congresswoman Cubin wanted

to be here to explain H.R. 2186, however, she has just undergone major back surgery and is unable to attend. I certainly wish her a very speedy and complete recovery.

Now, I will get back to the legislative hearings.

H.R. 2438 was introduced by Congressman Jim Ryun of Kansas to establish appropriate trails on abandoned railroad rights-of-way. This bill will amend the National Trails System Act to ensure protection of private property rights on lands

which once held an active railroad easements and modifies the language in the existing Act to allow other interim uses, but still retains the recreational use where

it is appropriate. H.R. 2438 also assures that state laws regarding railroad easements and rights-of-way will not be preempted by Federal statute.

The second bill the Subcommittee will hear testimony on today is H.R. 1995, The

Point Reyes National Seashore Farmland Protection Act of 1997, introduced by Mrs.

Woolsey of California.

This legislation is very controversial in nature, and was scheduled for a hearing

before this Subcommittee only at the insistence of Chairman Young. This bill creates a ‘‘Farmland Protection Area’’ in Marin and Sonoma counties in California, consisting of approximately 38,000 acres of privately owned, productive agricultural

land, outside the existing boundary of the Point Reyes National Seashore. The bill

is opposed by a majority of the affected landowners who control approximately 75

percent of the land in question.

We will hear testimony from these directly affected landowners that will emphasize how this involuntary inclusion within a National Park Service boundary will

affect the value of this land, and the future of agriculture in this area that their

families have protected for over 100 years!

We will also hear from officials representing Marin County and the Marin Agricultural Land Trust to explain why Federal taxpayers must bail out the most

wealthy per capita income county in the United States, by purchasing development

rights on privately owned land that is already protected from development by local
3

zoning, and comprehensive State of California programs, such as the Williamson Act

and the Coastal Zone Management Act.

Finally, we will hear that the Congress has already provided a voluntary, agricultural conservation easement program on a national basis in the 1996 Farm Bill.

H.R. 1995 attempts to fund agricultural easements through the National Park System at a time when the land acquisition backlog is over $1.2 billion. The bill intends

to place a burden on the Land and Water Conservation fund of $30 million, to an

estimated $80 million, to enhance Point Reyes National Seashore and the Golden

Gate National Recreation Area for which the American taxpayer has already paid

over $145 million for land acquisition, and will spend more this year!! The hearing

today is before the Subcommittee on National Parks and Public Lands, there should

be no mistake that H.R. 1995 is a park expansion bill, not an agricultural bill!

STATEMENT OF HON. ENI F.H. FALEOMAVAEGA, A DELGATE

TO CONGRESS FROM AMERICAN SAMOA

Mr. FALEOMAVAEGA. Mr. Chairman, thank you, and I would also

like to offer my personal welcome to Congressman Ryun of Kansas,

and our good friend, Congresswoman Lynn Woolsey from California.

Mr. Chairman, we’re here this morning to receive testimony on

two pieces of legislation, H.R. 2438, by Mr. Ryun of Kansas, to

amend the National Trails System, and H.R. 1995, by Congresswoman Woolsey of California, to protect the farmland at Point

Reyes National Seashore.

In 1983, Congress amended the National Trails System Act to set

up a process through which railroad corridors would be converted

into recreation trails on an interim basis. This program has been

extremely successful thus far, resulting in 123 railbanked corridors

in 26 States, comprising some 3,412 miles of recreation trails. And

recreation trails have been reactivated to rail service in Ohio and

Washington.

The Rails to Trails program provides the public with the opportunity to enjoy outdoor recreation activity on land that would have

otherwise remained under the authority of railroad companies and

closed to the public. For the railroad companies, this program provides for railroad rights-of-way to be maintained and preserved

until the company reinstates future rail lines as needed. Through

this program, Federal, State, and local governments have not only

worked cooperatively among themselves, but also with private business interests, preservationists, and outdoor enthusiasts.

In 1992, the National Park Service, together with Penn State

University, conducted a study of trail problems to the neighbors

and its effects on local businesses. Some land owners with property

adjacent to rail corridors fear that a recreation trail would bring

problems to their neighborhood. However, one of the study’s results

found that 87 to 97 percent of adjacent landowners found that having a recreation trail either had no effect or increased their property values.

I am concerned about the impacts enactment of H.R. 2438 would

have on this program. Provisions affecting the abandonment status

of rail-banked corridors and applicability of State laws may hinder

this important and popular program.

H.R. 1995, the Point Reyes National Seashore Farmland Protection Act, addresses a problem in Congresswoman Woolsey’s district

of Marin and Sonoma Counties in California. There have been nu-
4

merous public meetings on this legislation among the affected landowners, Federal and local officials.

In July 1995, the National Park Service released a study which

they were directed to undertake by this Committee confirming the

need to protect farmlands in this area. To date, the local community has contributed in excess of $15 million toward the acquisition

of conservation easements.

I want to commend Congresswoman Woolsey for her fantastic

work on this piece of legislation and her dedication and hard work

on this matter, and I look forward to hearing the testimonies from

the witnesses concerning these two pieces of legislation.

Thank you, Mr. Chairman.

Mr. HANSEN. Thank you. The gentleman from Minnesota.

[The prepared statements of Mrs. Boxer and Mr. Hefley follow:]

STATEMENT OF HON. BARBARA BOXER, A SENATOR IN CONGRESS FROM THE STATE OF

CALIFORNIA

As with many of our national parks, monuments and other protected treasures,

the character and beauty of the Point Reyes National Seashore are threatened—not

by development or environmental degradation within the national seashore—but by

proposed development outside the boundary line over which the Park Service has

no control.

The Point Reyes National Seashore Farmland Protection Act of 1997 is an innovative proposal which will ensure that the ecological integrity of the Point Reyes National Seashore is protected for future generations, while also preserving the property rights and historic agricultural use of the farmland in the area. I am pleased

to be introducing the Senate companion legislation next week.

The legislation establishes a Farmland Protection Area adjacent to the Point

Reyes National Seashore within which willing farmers and ranchers will have the

opportunity to sell conservation easements for their land. The Farmland Protection

Area includes 38,000 acres of the eastern shore of Tomales Bay visible from within

Point Reyes. Property owners within that area will be available, but not required,

to sell conservation easements to their land.

Conservation easements are legal agreements between a land-owner and a land

trust (non-profit) conservation organization. The conservation easements restrict development on the land which is incompatible with the agricultural uses of the land.

The easements would not expand public access, pesticide regulations, hunting

rights, etc. Furthermore, the easements will remain with the land in perpetuity providing security for ranchers as well as continued protection for the national seashore.

The easements will allow existing agriculture activities to continue and will preserve the pastoral nature of the land adjacent to Point Reyes National Seashore and

the Golden Gate National Recreation Areas by guaranteeing no new development.

I believe this legislation will become a model for land conservation across the nation as governments lack the funds to purchase fee title to protect valuable properties from development. This approach may be used to address similar problems

at other parks, wildlife refuges, and marine sanctuaries by preserving compatible

land use areas that protect view sheds and prevent environmental damage.

This legislation will allow the National Park Service, working with the Marin Agricultural Land Trust (MALT), the Sonoma Land Trust (SLT), and the Sonoma

County Agricultural Preservation and Open Space District (SCAPOSD) to protect

this beautiful area at a fraction of the cost of acquiring title to the properties within

the new boundaries. In addition, those properties would be maintained on Marin

County’s tax rolls.

Without this legislation, almost 40,000 acres of scenic ranch land will be vulnerable to development. This bill has the strong support of the local farmers and ranchers within the area to be protected, local environmental groups including the Marin

Conservation League, effected local governments and the local chamber of commerce.

I commend Congresswoman Lynn Woolsey for her hard work and dedication to

this legislation. She has been working closely with interested parties in an effort

to find this innovative solution which benefits ranchers, environmentalists, the

County, and the Park Service alike.
5

STATEMENT OF HON. JOEL HEFLEY, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF COLORADO

Mr. Chairman, in 1983, the Senate Energy Committee was confronted with a

growing number of railroad abandonments and began to think it was a good idea

to keep some of these rights-of-way open. The result was the National Rails-toTrails Act, probably one of the more popular programs of recent years.

As a supporter of both recreational trails and private property rights, I have a

particular interest in—and concern over—the bill before us today. Based upon what

little I know about Kansas property law and settlement patterns, Mr. Ryun may

have a point—in his home state. But I don’t think it’s wise to adopt a blanket remedy for a problem that happens in scattered states or regions. In Kansas, the railroads may well have sold land to farmers with a reversionary right. If that is the

case, then it would seem they are due compensation and there are existing laws to

deal with that problem. But I do not know whether the same situation exists in Colorado or Oklahoma or in the West at large, in other parts of the country or even

in other parts of Kansas. If we are going to protect private property rights, we must

protect all private property rights, whether they belong to the farmer, the railroad

or the United States.

I am further concerned about whether this bill will damage the alleged underlying

purpose of the 1983 law, that is to preserve transportation corridors for possible future use. It may seem absurd to us, while we lose approximately 3,000 miles of railroad trackage each year, to worry about whether we’ll need rail rights-of-way in the

future. But as a national policy body, we must. By yielding these rights-of-ways, we

may forever lose the option of their use as a transportation corridor. It does no good

to say we can declare a public use easement if that need arises. The country is

growing. Costs would likely preclude any such future construction. I do not know

whether we can allow individual states to opt out of a national transportation plan

any more than we could allow them to opt out of the Interstate Highway System.

In conclusion, I believe we should tread warily on this issue. Reportedly, the Senate Transporation Committee worked on this issue for two years without resolution

and the subject has been constantly revisited since 1983. The issue has worked its

way to the U.S. Supreme Court on at least two occasions. Private property rights

are a constitutional issue that should be dealt with seriously. But we should not

trash a successful program and our future needs without careful deliberation.

STATEMENT OF HON. BRUCE VENTO, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MINNESOTA

Mr. VENTO. Thank you, Mr. Chairman. I’m a sponsor of the Point

Reyes National Seashore Protection Act. This is a bill that has received a good deal of focus and study over the last 6 or 7 years.

It was initiated by the local authorities in terms of the county and

then picked up by the Congresswoman in terms of pursuing a Federal participation in the role.

It represents an important step forward in terms of enhancing

and trying to accommodate the Point Reyes National Seashore experience, the basic designation. This proposes to protect through

wholly voluntary agreements—it’s a voluntary program in terms of

buying the scenic easements and maintaining the farm and dairy

character of the lands—the farmlands and agricultural lands adjacent to Tomales Bay.

It’s an area if you visit, Mr. Chairman, you would recognize that

when you’re in Point Reyes you’re looking directly over at these

particular lands. As I said, there’s been substantial dollars already

raised locally to participate in the program. The major county involved has taken the lead in this, but they need our cooperation.

We need to coordinate our activities with the county and the Park

Service to achieve the objectives that are envisioned here.

This is a park where nearly 2.5 million visitors a year experience

this, merely 50 miles north of San Francisco. It’s an important resource and one that affords us an economical and efficient way, in
6

terms of a partnership, an important partnership, to try and conserve and maintain the rural character on a voluntary, willing-seller basis with regard to the purchase of these covenants that are

envisioned in the bill.

And so it has received—the Park Service has studied it—I think

we will get support. There is substantial agreement; there isn’t absolute agreement, but I don’t think we should be too amazed by

that. I think, though, that the work has been on this, and I think

the bill has a goodly amount of merit, and, hopefully, we can work

through whatever differences remain and act positively on it.

I also note that we’re hearing a bill that modifies the basic Rails

to Trails law, one of the more innovative proposals. Across the

country we’ve seen substantial rail abandonment or the cessation

of the use of rails on many of the lines, and these have turned into

one of the most important recreational resources that are available

in many of our areas.

It affects greatly—now here’s an area that affects a lot of urban

areas, Mr. Chairman, and suburban areas, and in spite of the fact

that adjacent landowners have often voiced concerns, after the

trails are established, as high as 70 to 90 percent have voiced an

affirmative response that it actually has enhanced the value of the

lands adjacent to it, because of the desirability of being close to a

resource of this nature.

So, I, myself, am a frequent user of such trails, and I think and

I find that the ones in and around—we have trails that stretch in

Minnesota for hundreds of miles, and they are an extremely valuable resource and, I think, point the direction of recreation into the

next century. So I am very concerned about any changes that

might occur to that which would discourage the temporary

railbanking, which I think is a good compromise and/or, in other

words, would eviscerate the effect of converting these trails to

recreation use.

So I hope we can work our way through that and try to put in

place the proper safeguards to assure that there are some hearings

and some review of that, but that we would keep in place the

progress, the evolution of these rail sites into trails for the broad

public use, Mr. Chairman. So I look forward to the hearing today.

We will be interrupted, I understand. Our Committee has responsibilities on the floor, and I certainly, while I’m interested in

these topics, will be most interested in addressing the concerns on

the floor, as may other members.

Thank you, Mr. Chairman.

Mr. HANSEN. I thank the gentleman. The gentleman from California, Mr. Pombo.

The gentleman from Michigan, Mr. Kildee.

Mr. KILDEE. I am primarily here to listen to my spiritual confessor, Lynn Woolsey.

Mr. HANSEN. We’re happy to have our two colleagues with us at

this time. We’ll turn to The Honorable Jim Ryun and The Honorable Lynn Woolsey.

Mr. Ryun, take whatever time you need, and the floor is yours—

and we’d also like to welcome our colleague from Missouri who is

with us at this particular time.

Mr. Ryun.
7

STATEMENT OF HON. JIM RYUN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF KANSAS

Mr. RYUN. Thank you, Mr. Chairman, for scheduling the hearing

today on my bill, H.R. 2438, the Railway Abandonment Clarification Act.

I would like to also thank all of the witnesses who have taken

time and spent their money coming here to testify on behalf of my

bill. Also, I would like to request unanimous consent to submit additional testimony to be made part of the record.

Mr. HANSEN. Without objection, so ordered, and all additional

testimony will be part of the record.

[The information referred to follows:]

Mr. RYUN. And I’d also like to take a moment of privilege and

introduce my colleague, who you’ve already mentioned from Missouri, Kenny Hulshof, who would like to make an introduction.

Mr. HULSHOF. Thank you. It’s my privilege to be here. I’m not

intending to offer testimony, but I do appreciate the efforts that

Mr. Ryun has made with this bill.

I am privileged and honored to welcome two constituents here

today, one of whom you’ll be hearing from. With all due respect to

the gentleman from Minnesota, assuming that the numbers ‘‘70

percent to 90 percent of landowners are now appreciative of the

Rails to Trails,’’ I think you’re going to hear some compelling testimony today from the minority of the 10 percent to the 30 percent,

particularly Jayne Glosemeyer and her husband, Maurice, who

have come from the 9th Congressional District of Missouri, from

Marthasville, that have a farm there. They have the situation of

an abandoned railway that has been turned into a trail area, and

they’re going to talk about some of the realities and some of the

difficulties and challenges that they’ve faced.

So, I’m here in support of them, and, again, appreciate the gentleman allowing me the privilege of introducing the Glosemeyers to

you and to this body. Thank you.

Mr. RYUN. Mr. Chairman, I’m here today to discuss a fundamental constitutional right, and that is the right to own property.

This right is a pillar of our democracy and there is a Bill of Rights

to protect that.

My legislation addresses the rights of property owners whose

land once held a railway track that was running through it. Specifically, the Act allows States to participate in the process of determining how abandoned railways are developed into recreational

trails.

From the start let me say one thing and make it very clear: I

support the development of trails. I’ve enjoyed trails; I want my

children and future grandchildren to have the opportunity to use

trails, and I believe that the quality of trails can add economic benefits to some communities. Although I have run on more miles than

I care to count on trails, and they are wonderful, they’re safe, my

desire to run on a smooth surface should not come at the expense

of property owners whose constitutional right hangs in the balance.

These property owners are farmers—you’re going to hear from

some of them today—homeowners, and small business people.

When many of these folks in my district approached me with their

concerns about the way railways are currently converted into trails,
8

I found the root of their concern to be the very thing that American

people have rejected time and time again, and that is one-size-fitsall Federal law—the Washington mentality, that type of law that

is based on power, that gives power to the few at the expense of

the majority.

When the Rails to Trails Act was first introduced in 1983, it was

not given careful consideration in Congress, and, consequently, its

impact was not understood. The Rails to Trails Act was passed by

the House of Representatives under suspension of the rules in

March 1983 and was debated for only 20 minutes in the Senate.

This expedited schedule resulted in a simple misunderstanding.

While many railways ran on Federal property, it was not mentioned that many other railroad rights-of-way are held on private

property.

Unfortunately, the unintended consequences of the Rails to

Trails program is that individual property rights are suspended

and special interest groups, under the color of law, are allowed to

use private land for public purposes without providing due process

or compensation for property owners.

The controversy over the Rails to Trails program boils down to

the fact that much of the railbanked land actually belongs to private landowners, and these landowners are completely denied, even

under the slightest opportunity, to participate in the decisionmaking process with regard to how the trail will be developed on

their property.

Here’s what actually happened to one my constituents. This

farmer and his family have owned a piece of land near Topeka for

almost 150 years. The farmer allowed the railroad to lay a railway—the ties and the track—across the land and use the land by

granting the land to the railroad as an easement. But keep in

mind, the farmer continued to own that land. When the railroad

stopped operating its trains and removed its tracks and railroad

bed, the farmer still owned that land; nothing had really changed.

However, the Federal Government told the farmer that he couldn’t

use his own land after the railway was taken away. Instead, the

government told the farmer that his land was not considered abandoned and he would not be able to use it, and it was used then for

a public recreation trail.

To add insult to injury, special interest trails groups with no

public accountability are authorized to establish these trails on privately owned land. Therefore, the farmer becomes the proverbial

David against the trail group’s Goliath, which is armed with lawyers and the power of the Federal Government. This is all accomplished through legislative sleight-of-hand.

The National Trails System Act states that interim use of a railway is defined as bicycling, cross-country skiing, day hiking, equestrian activities, jogging or other similar activities. Furthermore, the

Rails to Trails Act, which amends the National Trails System Act,

states that interim use should not be treated as—and this important—railway abandonment, and the Surface Transportation Board

shall not permit abandonment. So abandonment really does not

equal abandonment.

Common sense, on the other hand, would suggest that interim

use is abandonment because you cannot run, bike, ride your horse,
9

ski, or whatever, on railroad tracks. Interim use and railroad are

mutually exclusive; you cannot have one with the other.

The Rails to Trails Act tramples on the rights of property owners

and tramples on the rights of many State governments. For example, Kansas law states that when a railroad ceases to use its tracks

on the farmer’s property and the trains stop rolling, the use of the

land automatically reverts to the rightful land owner? Why? Because the farmer owns the land and can do with it as he pleases

once the trains and the tracks are gone. Through definitional

sleight-of-hand, the Federal Government has thrown out State law

relating to reversionary property rights, and suddenly a person’s

private land had become, if you will, public.

Those in favor of trail development argue that changes in the

Rails to Trails Act are not warranted because of the significant

popularity and the economic benefits of recreational trails. Trail

advocates say further that railbanking rail corridors is vital to the

country’s transportation infrastructure because it preserves valuable rail corridors for the future.

And lastly, trail advocates state that the Supreme Court has

ruled that railbanking is constitutional, and that those property

owners who believe a taking has occurred should file with the U.S.

Court of Claims for their day in court and receive compensation.

It is true that property owners can file in the Claims Court.

Small Kansas farmers, however, do not have the financial resources to hire an attorney to jump through the administrative

hoops and to spend the money to fight for compensation on a 100-

foot wide easement that they know is really theirs. We can all do

the math. It is not worth spending $100,000 in attorney’s fees to

be compensated for confiscated land worth about $30,000. In fact,

not a single aggrieved property owner has been compensated in the

14 years of the Rails to Trails program. And I think that point is

very important to make, and at this point no one has been compensated through all of these years as a result of what we define

as a ‘‘taking.’’

Also, my bill removes the one-size-fits-all-mandate that converts

abandoned railways into recreational trails. It does not diminish

the Surface Transportation Board’s authority to preserve our national corridor system. Instead, it gives discretion to the Surface

Transportation Board to certify trail use, but does not require it.

In this way, railbanked corridors do not have to hold a recreational

trail. Instead, railbanked land could be used by landowners for

farm or range land or any other purpose until rail use is reinstated.

I can assure the Committee that reinstating a railway over a

crop of wheat is no more difficult than reinstating a railway over

a trail. In this way, the STB can continue to preserve the valuable

railway corridors in compliance with State abandonment law. The

Railway Abandonment Clarification Act takes a common sense approach. It balances the approach to the Federal treatment of railway abandonment and the development of recreational trails.

The Act will ensure that farmers and property owners have a

voice in how the land will be used. It will conform Federal railway

abandonment law to the Constitution. It will preserve a State’s

rights to determine private property issues and to continue the en-
10

couragement and development of trails, and that’s very important.

Sometimes I’ve argued against that I am against trails—I am very

much for trails.

Let’s look at this last point for a moment, if I might. H.R. 2438

does not repeal the Trails Act or prevent the development of trails

on private property. Instead, it continues to encourage States to develop trails. The Railway Abandonment Clarification Act encourages trail development by returning this power to the States and

allowing them to determine how trails will be developed. H.R. 2438

corrects the problem of current law, while maintaining railbanking

and appropriate trail development.

Mr. Chairman, I would like to conclude my testimony with a

quote from James Madison, illustrating the foresight of our Founding Fathers. He said this in 1792, and I’d like to quote it for you.

Madison said: ‘‘That is not a just government, nor is property secure under it, where the property which a man has in his personal

safety and personal liberty, is violated by arbitrary seizures of one

class of citizens for the service of the rest.’’

I urge quick consideration of this bill so that the landowners can

regain the use of their land, and I’d be happy to answer any questions at this time.

[The prepared statement of Mr. Ryun follows:]

STATEMENT OF HON. JIM RYUN, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF KANSAS

Thank you, Mr. Chairman, for scheduling this hearing on my bill, H.R. 2438, the

Railway Abandonment Clarification Act. I am here today to discuss a fundamental

constitutional right—the right to own property. This right is a pillar of our democracy and my bill aims to protect that right.

My legislation addresses the rights of a property owner whose land once had railroad tracks running through it. Specifically, the Act allows states to participate in

the process of determining how abandoned railways are developed into recreational

trails.

Before I address what my bill does, however, let me make one thing clear: I support trail development. I enjoy trails; I want my children and grandchildren to have

the opportunity to use trails; and I believe that quality trails can add economic benefits to some communities. Although I have run more miles than I can count on

trails, my desire to run on a smooth surface should not come at the expense of property owners whose Constitutional rights hang in the balance.

These property owners are farmers, homeowners, and small business people.

When many of these folks in my district approached me with their concerns about

the way railways are currently converted into trails; I found their concerns to be

the very thing that the American people have rejected time and time again: a onesize-fits-all Washington-based law that gives power to the few at the expense of the

majority.

When the Rails to Trails Act was first passed in 1983, it was not given serious

consideration in Congress and consequently its impact was not understood. The

Rails to Trails Act was passed by the House of Representatives under suspension

of the rules in March of 1983, and was debated for only twenty minutes in the Senate. This expedited schedule resulted in a simple misunderstanding: while many

railways run on Federal property, it was not mentioned that many other railroad

rights-of-way are held on private property. Unfortunately, the unintended consequences of the rails to trails program are that individuals’ property rights are held

in abeyance and special interest groups are allowed to use private land for public

purposes without providing due process or compensation to the property owners.

In a nutshell, the controversy over the Rails to Trails program boils down to the

fact that much of the railbanked land actually belongs to private landowners, like

the good farmers in my district. Here is what actually happened to one of my constituents who is a farmer.

This farmer owns a piece of land near Topeka, Kansas. The farmer allowed a railroad to lay a railway (the ties & track) across his land and ‘‘use’’ the land by granting the railroad an easement. But, keep in mind, the farmer still owns the land.
11

When the railroad stopped operating its trains and removed its tracks and railway

bed—again the farmer still owns the land. However, the problem is that the Federal

Government told the farmer that he couldn’t use his own land after the railway is

taken away. Instead, the government told the farmer that his land is not considered

abandoned and will be used as a public recreation trail.

To add insult to injury, its not even the Federal Government that determines

where trails will be developed. Special interest trails groups, with no public accountability, are authorized to establish these trails on privately owned land. Therefore,

the farmer becomes the proverbial David against the trail group’s Goliath, which is

armed with a league of lawyers and the power of the Federal Government.

This is all accomplished through legislative sleight-of-hand. The National Trails

System Act states that interim use of a railway is defined as bicycling, cross-country

skiing, day hiking, equestrian activities, jogging or similar fitness activities. Furthermore, the Rails to Trails Act, which amended the National Trails System Act,

states that interim use shall not be treated as railway abandonment and the Surface Transportation Board shall not permit abandonment.

In essence, the Federal law states: abandonment is NOT abandonment. Common

sense, on the other hand, would suggest that interim use IS abandonment because

you cannot run, bike, ride horses or ski on railroad tracks. Interim use and railroad

use are mutually exclusive; you cannot have one with the other.

The Rails to Trails Act tramples on the rights of property owner’s and tramples

on the rights of many State governments. For example, Kansas law states that

when a railroad ceases to use its tracks on the farmer’s property—and the trains

stop rolling—the use of the land automatically reverts to the rightful landowner.

Why? Because the farmer owns the land and can do with it as he pleases once

trains and tracks are gone. Through definitional sleight-of-hand, the Federal Government has thrown out state law relating to reversionary property rights and suddenly a person’s private land has become ‘‘public.’’

Those in favor of trail development will argue that changes to the Rails to Trails

Act are not warranted because of the significant popularity and economic benefits

of recreational trails. Trails advocates say further that railbanking rail corridors

(the policy that prevents the reversion or rights-of-way to property owners for potential future railway use) is vital to the country’s transportation infrastructure because it preserves valuable rail corridors for the future. Lastly, trails advocates

state that the Supreme Court has ruled that railbanking is constitutional and that

those property owners who believe a taking has been made can file in the U.S.

Court of Claims for their day in court to receive compensation.

It is true that property owners can file in Claims Court. Small Kansas farmers,

however, do not have the financial resources to hire an attorney to jump through

the administrative hoops and spend the money to fight for compensation on a 100

foot wide easement that they know is theirs. We can all do the math: it is not worth

spending $100,000 in attorney’s feeds to be compensated for land worth about

$30,000. In fact, not a single aggrieved property owner has been compensated in the

14 years of the Rails to Trails program.

The Railway Abandonment Clarification Act takes a common-sense, balanced approach to the Federal treatment of railway abandonment and the development of

recreational trails. The Act will ensure that farmers and property owners have a

voice in how their land will be used. It will conform Federal railway abandonment

law to the Constitution; preserve a State’s right to determine private property

issues; and continue to encourage trail development.

Let’s look at this last point for a minute. H.R. 2438 does not repeal the Trails

Act or prevent the development of trails on private property. Instead, it continues

to encourage states to develop trails. The Railway Abandonment Clarification Act

encourages trail development by returning this power to the states, allowing them

to determine how trails will be developed.

My bill removes the ‘‘one-size-fits-all’’ mandate that converts abandoned railways

into recreational trails. Instead, it gives discretion to the Surface Transportation

Board to certify trail use, but does not require it. In this way, railbanked corridors

do not have to hold a recreational trail. Instead, land could be used by landowners

for farm or range land or any other purpose until rail use is reinstated. In this way,

the STB can continue to preserve valuable railway corridors and can allow state

abandonment law to revert railway corridors that are dead-ends or are remotely located.

Let’s be clear. Again, in many cases, the farmer owns the land. He owns the soil

and everything beneath the ties and tracks. The ties and tracks belong to the railroad. When the railroad removes those tracks and ties, there is nothing left but the

land owned by the farmer.
12

But the Federal Government does not believe that Kansans, or other Americans,

know best how to use their own land. Instead of making the rights of private property a priority, the government has made recreational use for certain citizens a priority.

This is poor Federal legislation and needs to be rectified. H.R. 2438, The Railway

Abandonment Clarification Act—will change this law and restore private property

rights issues to the states.

Mr. Chairman, I would like to conclude my testimony with a quote from James

Madison, illustrating the foresight of our Founding Fathers. He said, in 1792:

‘‘That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated

by arbitrary seizers of one class of citizens for the service of the rest.’’

H.R. 2438 corrects the problems in the current law while maintaining railbanking

and appropriate trail development.

Mr. HANSEN. Thank you very much. Lynn Woolsey, we’ll turn to

you.

STATEMENT OF HON. LYNN WOOLSEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Ms. WOOLSEY. First, I’d like to thank you, Mr. Chairman, for

holding this important hearing. I know how busy your schedule is,

and I truly, truly appreciate your willingness to have a hearing on

this important piece of legislation. Thank you.

I’d also like to extend my appreciation to Chairman Young and

to the Committee for their interest, and your interest, in the bill.

Today you will hear from a variety of people about the Point

Reyes National Seashore Farmland Protection Act. I’d like, particularly, to recognize three of my constituents who have traveled to

Washington to demonstrate the breadth of support which this bill

enjoys in my district. I want to thank them for sacrificing their

busy schedules and being here today: Marin County Supervisor,

Steve Kinsey; Marin Agricultural Land Trust Executive Director,

Bob Berner, and Sharon Doughty, West Marin Chamber of Commerce member, Marin County Farm Bureau member, and landowner.

There are many others in the audience, Mr. Chairman, who have

also traveled to demonstrate their support, and I want to thank

them, too.

In addition to submitting my written statement for the record, I’d

also like to submit letters of support for this bill to be included in

the hearing record.

Mr. HANSEN. Without objection.

[The information referred to may be found at end of hearing.]

Ms. WOOLSEY. Mr. Chairman, earlier this year the American

Farmland Trust released a shocking statement: ‘‘Nationwide, almost 50 acres of prime and unique farmland are being destroyed

every hour, every day.’’ This loss of productive farmland threatens

not only the lifestyle of small farmers, but also the economic and

environmental stability of our community.

In my district, Marin County alone has lost 32,000 acres of farmland since 1952. The Point Reyes National Seashore Farmland Protection Act, H.R. 1995, is a unique solution to this growing problem

in our country. How do we protect disappearing farmland while simultaneously protecting our natural resources?

The fundamental problem we face in Marin and Sonoma Counties is the threat of development. The lands in the proposed farm-
13

land protection area are sandwiched between 6.5 million people

who live in the San Francisco Bay area and the Point Reyes National Seashore, one of the 10 most heavily visited national parks

in this country. As more and more visitors discover the beauty and

the majesty of this area, Mr. Chairman, the pressures for development become greater and greater.

By authorizing the purchase of agricultural conservation easements, this bill enables willing landowners to remain in agriculture. The great beauty of this legislation is that the local residents developed a solution which works for them. It is based on

former Marin County Supervisor Gary Giacomini’s vision, and it

builds upon existing successful land trust and open space district

programs. The organizations that monitor the agricultural conservation easements within the proposed farmland protection area

are made up of local residents.

Mr. Chairman, landowners will not be dealing with bureaucrats

in Washington. They will be dealing with their neighbors who best

understand their needs. The Federal Government does have an interest in this area. That interest is the Point Reyes National Seashore. The purchase of agricultural conservation easements protects agriculture, while defending the Nation’s investment in the

seashore from incompatible land uses in the surrounding areas.

H.R. 1995 creates a 38,000-acre farmland protection area. Landowners in the area qualify for the benefits of agricultural conservation easements. Landowners outside the area do not. H.R. 1995 authorizes $30 million for the Federal Government to partner with

the local community in a dollar-for-dollar match. The local community has already invested $15 million in this area.

H.R. 1995 does not grant any additional powers to the Federal

Government. It authorizes a voluntary program. It ensures that the

land remains on the tax roll, and it protects private property

rights. If a landowner chooses not to participate, life remains unchanged.

Mr. Chairman, I’ve held public meetings, and I’ve had individual

meetings, one-on-one, with most landowners within the proposed

farmland protection area. I sat in their kitchens, I heard their concerns, and I cleared up misinformation. These meetings were extremely productive, and this bill responds to the suggestions and

concerns that I heard from the landowners.

Through these meetings, I know that the majority of impacted

landowners support this bill. In addition, the great majority of my

constituents support this bill. Both the Marin and Sonoma Boards

of Supervisors have endorsed the plan, as well as the West Marin

Chamber of Commerce. National organizations supporting this legislation include the League of Women Voters, American Farmland

Trust, and the Trust for Public Land.

Currently, H.R. 1995 has 44 bipartisan co-sponsors. In particular, I’d like to acknowledge my original co-sponsor, Congressman Wayne Gilchrest, as well as the Park Subcommittee members

who are co-sponsors: Ranking Member Faleomavaega, which I

think was the hardest part of this testimony—making sure I got

his name right—Representatives Duncan, Vento, Jones, Pallone,

and Hinchey, and Delegate Christian-Green.
14

The landowners raised concerns about this legislation during our

meetings, and in response this bill was strengthened to ensure

more protection for agriculture and for landowners. Despite these

changes some members, however, of the local Farm Bureau, continue to oppose the bill. However, it must be noted that the Marin

Farm Bureau is split and officially neutral on this issue.

Mr. Chairman, Subcommittee members, the Point Reyes National Seashore Farmland Protection Act is a creative solution for

protecting our agricultural land, a solution that balances environmental and economic needs, while at the same time respecting the

rights of individual property owners. H.R. 1995 will serve as a national model for the protection of agriculture, as well as for the protection of our Nation’s investment in its national parks.

The program is completely voluntary. It keeps lands in private

ownership and maintains the local tax base. Through this program,

we will be investing in our future by protecting our Nation’s resources—both land and people. We must begin to take steps to address this need. This bill will start that process.

Thank you, Mr. Chairman. I look forward to answering any questions that you might have about this legislation.

Mr. HANSEN. Thank you. I will proceed at this point, as we have

a vote on now on the rule on the grazing bill—and following that,

if we could hurry back, we would have questions for our colleagues

on their testimony, and then we’ll go to the panels. I intend to hold

everyone—members and witnesses—to 5 minutes. We’ve got seven

panels today, and it’s going to take a while to get through this, so

if anybody goes over, they will hear the gavel. So, don’t do something you don’t want to hear.

Anyway, we’ll stand in recess long enough to vote, and then I

would urge members of the Committee to hurry right back.

[Recess.]

Mr. DUNCAN. [presiding] I’ve been asked by Committee staff to

go ahead and reconvene the hearing until Chairman Hansen gets

back. And we are, I understand, at the point of questioning of

members, and I don’t think we have too many questions of members because we want to move as quickly as we can to other panels.

But, I would like to ask Ms. Woolsey about her bill. Is your bill

totally voluntary, Ms. Woolsey?

Ms. WOOLSEY. The bill is 100 percent voluntary, Mr. Duncan. It’s

willing seller, willing buyer.

Mr. HANSEN. [presiding] The gentleman from Tennessee.

Mr. DUNCAN. Would any agency of the Federal Government have

any increased authority or power over this land?

Ms. WOOLSEY. No. In fact, because of the concern in that regard

and a discussion I had with Representative Tom Campbell, I have

agreed to an author’s amendment to the bill when we do get to

markup; and that language would say that, ‘‘no lands or interest

in lands may be acquired by the Secretary within the farmland protection area without consent of the owner thereof.’’ That is the intent in the bill, and we will have it in the bill when the bill gets

to the next step.

Mr. DUNCAN. Would any of the farmers there now, anybody who

wanted to farm the land later—it’s my understanding that a farm-
15

er who has this land now would be able to sell the land later to

somebody who agreed to keep it in agricultural use. Is that correct?

Ms. WOOLSEY. Absolutely.

Mr. DUNCAN. Would they have to get permission from the Department of the Interior or the National Park Service or any other

Federal agency——

Ms. WOOLSEY. No.

Mr. DUNCAN. [continuing] to sell the land or do anything else on

the land? If they wanted to expand their farm by adding a barn,

for instance, or doing anything else consistent with agricultural

use, would they have to get permission from the Department of the

Interior or the National Park Service or any other Federal agency?

Ms. WOOLSEY. They would not have to get permission from any

Federal agency. They would go through the Land Trust with whom

they negotiated their easement and their agreement.

Mr. DUNCAN. Now what does that mean—that they would have

to get permission from the Land Trust?

Ms. WOOLSEY. The Land Trust will monitor the easements.

Landowners negotiate a contract with them about how they’re

going to use their land. And certainly a barn, a residence for a

farm worker or for one of their kids—all of that—they’ve been

doing that already in the 15 years that the Marin Agricultural

Land Trust has had easements. We have excellent experience in

that regard, that there’s no controversy as the land remains in agriculture.

There’s no control over pesticides; there’s no control over hunting; there’s no public access availability in this bill. Public access

would be dependent on the landowner wanting public access and

having that land purchased by the Federal Government, but they

would have to ask for it.

Mr. DUNCAN. All right; thank you very much.

Mr. HANSEN. Thank you. The gentleman from American Samoa,

you’re recognized for 5 minutes.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. Congresswoman

Woolsey, obviously there were, according to your testimony, there

were landowners that were opposed or still are opposed to the proposed bill. Can you elaborate how—I’m sure that in the course of

the hearings and the meetings that you’ve held with the community people, including the landowners—can you tell the Committee

what the basis is of how you draw the conclusion that, as far as

you’re concerned, the majority of the landowners support the legislation?

Ms. WOOLSEY. Well, as I said, I met one-on-one, actually in kitchens, at the kitchen table, with the majority of the landowners. And

talk about a group of wonderful people—let me tell you; it was my

privilege to be there, not their privilege to have me. During these

meetings it became very clear that there was a lot of misinformation. Once I got there, we talked through the bill and what it really

means—that it is voluntary, that they don’t have to be a part of

it if they don’t want to, and that their lives won’t change if they

choose not to participate.

Once they realized that the easements would be based on fair

market value, that the Federal Government would not have a

reach into their lives, and that their private property rights would
16

be protected, the great majority—there is a small, vocal minority,

believe me—but the great majority of landowners said, ‘‘All right,

even if I don’t want to participate, I have no problem doing so.’’

And I feel very secure in telling you that the majority of the landowners support it.

Mr. FALEOMAVAEGA. A couple of days ago—and I’m sure with all

of the other members of the Subcommittee—I received a letter from

a Mr. Echeverria, the president of the California Cattlemen’s Association in opposition to H.R. 1995. Would you care to comment on

that?

Ms. WOOLSEY. Well, yes; I would. I read that letter myself. First

of all, only 3 percent of Cattleman’s Association members live in

my district, but they sent out this letter about this bill that is very,

very inaccurate. I mean, it comes close to being lies, actually. So,

to clarify it, agricultural conservation easements will be negotiated

and monitored with willing landowners by the local Land Trust organization, not the Park Service as they stated. These easements

will keep the land in agriculture, in perpetuity. When the landowner dies, the land doesn’t go to the Park; it stays in the family

like any private property would.

Mr. FALEOMAVAEGA. I want to share a thought with my friends

from across the aisle that I don’t believe in the encroachment of the

Federal Government, too—perhaps you might say selectively.

Now you’ve indicated earlier in your testimony that your bill

does not add more power to Big Brother—the Federal Government—to coming in there and taking control of the lives of the people who live or will be affected by the proposed legislation. Would

you care to comment on that?

Ms. WOOLSEY. We have, throughout the authoring of this bill,

been very careful to make certain that the Federal Government

does one thing and one thing only—it provides a partnership in

funding with the local agencies so that we could keep this land in

agriculture in perpetuity. This is about farming. This is about agriculture—and with the Tom Campbell language that I’ve agreed to,

it couldn’t be clearer that there’s nothing in this bill to give the

Park Service more control over that land.

The farming around the borders of the Point Reyes National Seashore really does protect our investment in that existing national

park, which is one of the most visited national parks in the country. So it makes a difference to our investment in the existing park;

it makes a difference in keeping agriculture alive in my district

and in the Nation.

Congressman Ryun, you’re not being neglected here. I just have

one question on your proposed legislation. You’re just simply saying

that the landowners deserve to have due compensation for the taking.

Mr. RYUN. That’s correct, and that’s one of the processes we’re

trying to establish with this particular Act.

Mr. FALEOMAVAEGA. OK; and is it your opinion that the Federal

Government should be the one that is paying these landowners for

the taking?

Mr. RYUN. Not only my opinion, but it’s the opinion of the Supreme Court, as well.
17

Mr. FALEOMAVAEGA. OK. And I understand that there is ongoing

court litigation on this very issue. This is nothing new. I mean, I

notice you have about seven trails in Kansas, according to the——

Mr. RYUN. Yes; we have some that are developed and some that

are being considered. I think when you get to the testimony you’ll

hear some compelling testimony, not only by landowners that have

been affected, but by some of the court decisions that have already

been rendered.

Mr. FALEOMAVAEGA. OK; thank you, Mr. Chairman.

Mr. HANSEN. The gentleman from California, Mr. Pombo.

Mr. POMBO. Thank you, Mr. Chairman. Ms. Woolsey, you’ve said

that your legislation is voluntary, and I have looked through it, but

I fail to see—normally in a legislation such as this that the author

intends to be voluntary, there will be a section on that particular

subject that outlines what the voluntary participation is and what

the options are for the particular private property owners, and

there is not one included in this particular legislation.

Ms. WOOLSEY. Well, if the gentleman would like to work with my

office in that regard, like we did with Representative Campbell,

we’re more than willing to define what the intent of a boundary is.

I can tell you what the intent is with this bill, and that’s that we

create a choice for the landowner.

Those who are within this farmland protection area have the option of an agricultural easement. Those who are not within that

area do not have that option, and that’s exactly what this is about.

It’s defining where the Federal Government would have an interest, an interest enough to invest money over time through appropriations after the bill is authorized.

Mr. POMBO. Your legislation allows the purchase of lands within

the farmland protected area that are in danger of being developed

or under threat of being developed. Whose definition of ‘‘under

threat of being developed’’ are we going to use?

Ms. WOOLSEY. Well, I think the community at large probably

would have more to say about that than either of us here in Washington. But it would be willing seller in that regard, and that’s

what is strengthened in the language—through Mr. Campbell’s

language.

Mr. POMBO. Unfortunately, this legislation—you’re incorrect in

one thing—the community would have less to say about it than the

members of this Committee, because if the Secretary of the Interior

is the one that is going to be purchasing the lands, it will be a Federal decision that is made. Therefore, the definition of ‘‘under

threat of development’’ is more likely to be a definition that is used

by the National Park Service or the Department of the Interior or

the particular committee—this being the Resources Committee, the

Committee of jurisdiction.

Ms. WOOLSEY. Well, my point in saying local is that the negotiations will be through local land trusts and open space districts.

But, remember what the intent of this bill is. The intent of this bill

is to keep land in agriculture. One of the reasons we haven’t tried

to use State programs is that the State tends to turn the land back

in to parks. That isn’t the intent of this bill. The intent of this bill

is to keep this land in agriculture because that is the best use of
18

the land, and it’s also the best protection for the Point Reyes National Seashore.

So, keeping that in mind, the people who lived in the area which

is now the Pt. Reyes National Seashore were very frightened of the

same things that you’re talking about. Now, 100 percent of those

who are currently farming in the National Seashore have signed a

petition saying they are very satisfied with their relationship with

the National Park Service. So, we will keep our agreement, and the

agreement is to keep this land in agriculture in perpetuity—willing

seller, willing buyer.

Mr. POMBO. One final question for you. The land is currently

zoned as agricultural land; that’s the current zoning that’s on the

property. The local people have made the decision that that is the

zoning that they want, that they want to keep it in agriculture,

that that is the purpose of that land in the county zoning at the

current time. Why do you think it is necessary to go beyond what

the local people have instituted to put in Federal legislation or a

Federal designation on that particular piece of property?

Ms. WOOLSEY.Now, for the same reason that we have the Marin

Agricultural Land Trust and the Sonoma County Open Space Districts, these lands are under great threat of development. It is a

miracle that that land is still in productive agriculture, but it’s because it’s been owned by three and four generations of farmers that

are dedicated to that lifestyle. There are pieces of property proposed for development right now within that area that are before

the Board of Supervisors. Over time, that threat is getting greater

and greater, and I believe that it’s in the best interest in protecting

our existing investment in the National Seashore, and also in

protecting——

Mr. POMBO. I don’t want to interrupt you, but I’ve run out of

time. You’ve said that the local people support keeping it in agriculture. The local people make the decision as to how it is going

to be zoned, and it’s currently zoned agriculture. The local people

make that decision.

No one in this room, other than you, have anything to do with

how that particular piece of property is zoned. And yet you seem

to be concerned that the local people may change their minds and

want a different zoning on that particular property, so what you’re

asking is that we come up with a Federal zoning for that particular

land——

Ms. WOOLSEY. No.

Mr. POMBO. [continuing] so that they can’t change their mind

and make a different decision.

Ms. WOOLSEY. No, they can change their mind. If they don’t volunteer to be part of the easement program, they can go right to the

Board of Supervisors, to the planning and zoning program that is

existing right now in their county. I would think that Republicans

would really like this bill because the land is zoned one unit for

60 acres; therefore, they don’t get to develop very much of it, if any

of it. And I am proposing that we offer them some financial support

so they can stay in agriculture, so they can expand, so they can

modernize, so they can do whatever—pay inheritance taxes. This is

really paying them for not developing, which is exactly what I

thought was part of the property rights initiative that you support.
19

Mr. HANSEN. The time of the gentleman has expired. The gentleman from Guam.

Mr. UNDERWOOD. Thank you, Mr. Chairman. I only have one

question for Mr. Ryun, and just a comment on Ms. Woolsey’s legislation.

Mr. Ryun, in the case of the owners of these railway easements,

how far back, how many generations are we talking about in many

of these cases? I mean we’re not talking about——

Mr. RYUN. It’s really hard, at this point, to pinpoint an exact

date. I know we have many—in fact, I think there are some documents that might be available today showing some of the actual

easements that were granted. My point is, it’s difficult to trace it

back and yet we have many documents that show that people originally gave just the right-of-way to the railroads for an interim use

just for that period of time.

Mr. UNDERWOOD. Well, I’m in support of the basic thrust of your

legislation, but I was just wondering, are we talking about things

that could go back four, five, or six generations of families, of owners? We’re talking about something that could have been over

100—no, not 100 years—maybe 100 years ago?

Mr. RYUN. Yes; that’s very possible.

Mr. POMBO. If the gentleman would yield on that point. In many

of these cases these easements were granted between the late

1800’s and 1920, and especially on private property where you had

a private property owner granting a railroad use easement on that

property. A lot of those easements were given between the late

1880’s and 1920’s; that is when the documents were actually

signed.

Mr. UNDERWOOD. OK; thank you very much. And so in that instance, even though the property owner may have changed, obviously the right to the property stayed with whoever it went to.

Mr. RYUN. And may I add something to that?

Mr. UNDERWOOD. Sure.

Mr. RYUN. And that is why the right-of-way was given, it was

just for the purpose of the railroad. When the railroad left and the

railways and the ties and everything left, so did the easements; so

it should revert back to the original owner. That’s the way the

easements were established.

Mr. UNDERWOOD. Well, thank you for that. And I would just like

to commend the gentlewoman from California for her legislation

and for an innovative and creative way to keep alive what is a very

valuable national park area.

Mr. FALEOMAVAEGA. Will the gentleman yield?

Mr. UNDERWOOD. Yes, I’d be happy to yield.

Mr. FALEOMAVAEGA. I just wanted to ask Congresswoman Woolsey just an additional question just to make sure—in the times

that you’ve also met, does the administration support this legislation?

Ms. WOOLSEY. Yes. Actually, the Secretary has been out to the

area. He came just to view it, and then when he got out of the helicopter he said, ‘‘You’ve sold me. I’ve never seen anything quite like

it.’’

Mr. FALEOMAVAEGA. And in this whole process——

Ms. WOOLSEY. It has to stay in agriculture.
20

Mr. FALEOMAVAEGA. And in this whole process, there is no Federal taking, whatsoever, of land ownership.

Ms. WOOLSEY. There is no Federal taking.

Mr. FALEOMAVAEGA. And that the landowners maintain their private ownership of the lands involved here.

Ms. WOOLSEY. Private ownership on the tax rolls—willing seller,

voluntary involvement. What participating means is that land

stays in agriculture in perpetuity. It can only be sold for agriculture or for open space, but our goal is to keep it in agriculture.

Mr. FALEOMAVAEGA. OK. And Mr. Ryun, you’re not against the

trails system, you just want the landowners to be compensated?

Mr. RYUN. That’s correct.

Mr. FALEOMAVAEGA. That’s the bottom line of what you’re asking

in this legislation.

Mr. RYUN. That’s partly correct. Let me qualify that; yes, we

want them to be compensated, but we want them to be able to use

their own land, because as it is now set up many times that land

goes away, on a trail, and they’re not able to use the land as it was

originally intended. They have to maintain, let’s say, for example,

both sides of the trail with fences, whatever it might be. But, nevertheless, we want them to have the right to use that land in whatever way they choose.

Mr. FALEOMAVAEGA. So if a landowner, an adjacent landowner,

has 5 acres—that wants to develop that portion—and then another

portion adjacent to the trails system that goes on for 100 miles, but

because of that 5 acres they’ll have to go around the trails system?

Mr. RYUN. One of the reasons we wanted to return to the States

is to get the State the opportunity to make that decision and get

the landowners the choice of whatever they would like to do with

their land.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.

Mr. HANSEN. The gentleman from Guam—are there any further

questions on your time?

The gentleman from Puerto Rico.

Mr. ROMERO-BARCELO. Thank you, Mr. Chairman. I’d like to ask

Ms. Woolsey, is this bill—is this not only what the landowners in

the area want, but also what the local leadership in your district

wants?

Ms. WOOLSEY. You’re correct, Carlos. Both Boards of Supervisors

have endorsed the bill, as well as the West Marin Chamber of

Commerce. And, we have a stack of support letters that most bills

would be very glad to have. And I can tell you, the majority—the

great, great majority—of the people in my district support this initiative, this legislation.

Mr. ROMERO-BARCELO. Well, I guess, who are we then to say otherwise?

Ms. WOOLSEY. Thank you.

Mr. ROMERO-BARCELO. Mr. Ryun, all you’re looking for is that

the land that is now being used for the trailways, that it reverts

back to the landowners that are adjacent to that property? Is that

correct?

Mr. RYUN. We’re really dealing with the current land situation

and who owns that current land.
21

Mr. ROMERO-BARCELO. Oh, the owners—they are the owners of

the land, or was the railroad the owner of the land? Who is the

owner?

Mr. RYUN. It’s whoever holds the deed. In this case, we believe

the majority of it goes back to the landowners—privately held.

Mr. ROMERO-BARCELO. Oh, so the land itself—the trailways

themselves—were not owned by the railroad?

Mr. RYUN. No, they were not.

Mr. ROMERO-BARCELO. They were just easements.

Mr. RYUN. That’s correct.

Mr. ROMERO-BARCELO. OK; thank you very much.

Mr. HANSEN. Mr. Ryun, during the last vote you mentioned you

felt there was a question on what the gentleman from Minnesota,

Mr. Vento, had said and you would like to clarify that answer for

the record. Would you like to do that now?

Mr. RYUN. Well, the rights-of-way were paid for—and if I can say

this, they were paid for, I guess, forever, but really they were only

granted for a period of time. In fact, there’s case law at the U.S.

Supreme Court and the Court of Appeals and the Supreme Court

of Indiana that all agree with the fact that that right-of-way was

for a period of time and that it would revert back to the original

landowners.

Mr. HANSEN. Thank you. Do any of my colleagues have further

questions for this panel, for our colleagues?

The gentleman from California is recognized for 5 minutes.

Mr. POMBO. Thank you, Mr. Chairman. Mr. Ryun, I’ve had the

opportunity to review a number of the grant deeds that were given

in these cases. Typically, they would state a boundary limit that

would have the property description on it. They would typically say

that they were granting an easement that was 50 feet wide on either side of the track that went within this particular property,

and that it was a surface easement granted for railroad purposes

only; if they were ever to be given up for railroad purposes, that

the underlying easement would revert to the adjoining property

owners, which was the case in this country for many years, that

that is what happened. In many cases, once the ICC ruled that

abandonment had taken place, the property would revert to the adjoining property owners who rightfully owned the real estate.

Rails to Trails changed that, and it came in and said, unilaterally, we are taking away all reversionary property right that the

adjoining property owners have, and it was done on the suspense

calendar in the House; it was done with little or no debate in the

Senate. I don’t think anybody really realized what a massive taking

had occurred when that particular piece of legislation passed, and

what you are attempting to do is to correct part of that problem.

You’ve stated that your interest is in compensation, in the rightful compensation when a taking occurs. But in your experience, do

most of these property owners want to be paid or do they want

their reversionary rights returned to them?

Mr. RYUN. Most of them would really like the use of their land,

because in some cases—and we’ll have some shown here in just a

little bit indicating that the land really cuts through the middle of

their property—to the extent that maintaining fences takes away,

if you will—it gives them a lot of additional liabilities. I hate to dis-
22

agree with some of the gentlemen that spoke earlier, but I will—

that it is not as pleasant an experience for the landowners as has

been projected.

And while I’m an advocate of trails and enjoy the purpose for

which they are there—the families can go and participate and bikeride on them; I enjoy running on them—I think it’s very important

that we look at this issue closely and give the property owners the

rights that are guaranteed under the Constitution, and that is if

they choose to have compensation, that’s fine, but many of them

just want the use of their land.

Mr. POMBO. I know that in your past life you are probably the

most famous trail user that this Congress has ever had, and have

supported that throughout your entire life—the creation of those

trails. But I think in this particular case it’s not a matter of whether or not you support trails; it’s whether or not Congress is willing

to do what’s right.

Mr. RYUN. That’s correct, and that’s one of the reasons that this

particular Act is being offered, and that is to return those rights

back to the State, because once the Federal Government stepped in

and took that right away, it changed this process enormously—and

also return that right back to the individual.

Mr. POMBO. Thank you.

Thank you, Mr. Chairman.

Mr. FALEOMAVAEGA. Mr. Chairman, I——

Mr. HANSEN. The gentleman from American Samoa.

Mr. FALEOMAVAEGA. Mr. Chairman, I would like to ask unanimous consent to provide for the record a statement by Congresswoman Donna Green——

Mr. HANSEN. Without objection, so ordered.

Mr. FALEOMAVAEGA. [continuing] in full support of Congresswoman Woolsey’s bill, H.R. 1995.

[The prepared statement of Ms. Christian-Green follows:]

STATEMENT OF HON. DONNA M. CHRISTIAN-GREEN, A DELELGATE IN CONGRESS FROM

THE TERRITORY OF THE VIRGIN ISLANDS

Thank you Mr. Chairman for the opportunity to make this statement in support

of H.R. 1995, the Point Reyes National Seashore Farmland Protection Act. I want

to also take this opportunity to praise Congresswoman Woosley for her hard work

in putting H.R. 1995 together and for getting it to this point today.

Mr. Chairman, the Point Reyes National Seashore Farmland Protection Act is a

worthy bill which enjoys bipartisan support and deserves this Subcommittee’s favorable recommendation. It’s primary purpose is to preserve agriculture by maintaining

the Point Reyes farmland in private ownership using conservation easements, following the successful nonprofit Marin Agricultural Land Trust model, which preserved over 11,000 acres of agricultural land in the proposed area over fifteen years

ago. This represents a unique and creative way to lend a hand to the area farmers

while protecting their livelihood.

In addition to the public/private partnership, H.R. 1995 also establishes a local/

Federal Government partnership. Federal funds will be contributed to the area only

after the local government has contributed its share. H.R. 1995 has also received

the bipartisan support of the Marin County Board of Supervisors, the Sonoma County Board of Supervisors, the American Farmland Trust, the Inverness Association,

the West Marin Environmental Action Committee and the West Marin Chamber of

Commerce.

Mr. Chairman, H.R. 1995 proposes an innovative cost effective way to protect the

38,000 acres of agricultural lands adjacent to the Point Reyes National Seashore

and deserves to be enacted into law.
23

Mr. FALEOMAVAEGA. And I was curious—in my ignorance, Mr.

Chairman, I had asked you if this was the famous Jim Ryun, the

olympic runner that I admired so much in my earlier years in

watching him perform. And I thought it was R-y-a-n rather than

R-y-u-n, but at any rate, my added congratulations for your being

here before the Committee.

Mr. RYUN. Thank you—and I assume then that I can count on

your support?

[Laughter.]

Mr. FALEOMAVAEGA. Well, as long as it doesn’t affect the trails

and that the Chairman will find the money to pay for our adjacent

landowners, I think we should be able to work something out here

in-between.

Mr. HANSEN. This is the famous Eni Faleomavaega, the BYU

football player, in case you had any question.

[Laughter.]

Mr. FALEOMAVAEGA. Well, if the Chairman would yield, you

know we have 20 Samoans that play in the NFL, and three made

All-Pro last year. So that means for every 12,000 Samoans, Mr.

Chairman, that live in the United States, we produce one NFL

player.

[Laughter.]

Mr. HANSEN. And half of the BYU team is from American

Samoa, if I may say so.

Mr. POMBO. Mr. Chairman, I would like to ask unanimous consent that a letter that was sent to me by the California Farm Bureau Federation be included in the record.

Mr. HANSEN. Without objection, so ordered.

[The information referred to may be found at end of hearing.]

Mr. HANSEN. Any further questions? The gentleman from Puerto

Rico.

Mr. ROMERO-BARCELO. No further questions.

Mr. HANSEN. Ms. Woolsey, I’ve been trying to absorb what you’ve

been saying here, and one part kind of bothers me in section 3(b)

of your bill. It provides for the Secretary of the Interior to exchange

Federal lands for lands within your farmland protection area without regard to the Federal Land Policy and Management Act of

1976—or we call that the FLPMA Act—you know, the Organic Act.

In other words, the Secretary can exchange for Federal lands

outside of California—well, why do you have that provision in your

bill? Because in effect, you’re amending the FLPMA Act for this

one provision, and that is always kind of a red flag to those of us

who wade through these things daily.

Ms. WOOLSEY. Well, it was included to make sure we covered

every base of how we might be able to keep this land in productive

agriculture, Mr. Chairman. I’m more than willing to talk about

how that gets in the way of the bill going forward. I should ask the

Park Service why they requested to put it in there.

[Laughter.]

Mr. HANSEN. We’ll have them on next.

Ms. WOOLSEY. This is a question for Don Neubacher.

Mr. HANSEN. Don’t worry; they’ll get their opportunity. The thing

that bothers me, though, is that that’s kind of a wide-open provision. See, what you’ve got here is——
24

Ms. WOOLSEY. If there were excess BLM estimates.

Mr. HANSEN. [continuing] somebody could—say the Department

of Interior could—find a piece in southern Utah, called the Grand

Staircase Escalante, and take ground out of that, or he could find

it some somewhere else, and for me that’s kind of a dangerous provision on that. Their estimates may be a little——

Ms. WOOLSEY. I would believe it would be, and, Mr.

Chairman——

Mr. HANSEN. Would you be amenable to taking that out?

Ms. WOOLSEY. [continuing] would you ask that question to the

Park Service in the next panel? Because they know why they requested it, and if it doesn’t make sense we’ll work with them and

we’ll do something differently.

Mr. HANSEN. All right; thank you. Any further questions? Apparently not. We’re into this hearing 1 hour and 35 minutes; we’ve got

a number to go.

We ask our colleagues, if they so desire, to join us on the dias,

and we’ll recognize them after members of the Committee if they

have questions for the further panels. Thank you very much.

We’ll turn to our next panel, which is Kate Stevenson, Associate

Director, Cultural Resource Stewardship and Partnerships, for the

National Park Service, and Evelyn Kitay—I hope I’m saying that

right—senior trial attorney, Office of the General Counsel, Surface

Transportation Board—if they would like to join us.

It’s always good to see you, Ms. Stevenson; it’s a pleasure to have

you with us. We’ll start with you. Keep in mind, we’ve got a long

hearing. We’ve got to have this over by 2 o’clock, because we’ve got

other people that are going to come in this room. So, we’ll hold everybody to 5 minutes; you know the rules on the lights.

Ms. STEVENSON. That’s fine; thank you, Mr. Chairman.

Mr. HANSEN. All right, we’ll turn the time to you—may we have

order in the chambers, please?

STATEMENT OF KATE STEVENSON, ASSOCIATE DIRECTOR,

CULTURAL RESOURCE STEWARDSHIP AND PARTNERSHIPS,

THE NATIONAL PARK SERVICE

Ms. STEVENSON. Thank you very much. We appreciate very much

the opportunity to offer the views of the Department of the Interior

on both H.R. 2438 and H.R. 1995. I have with me today Tom Ross,

who is the Assistant Director for Recreation and Conservation, and

Don Neubacher, who is the Superintendent of Point Reyes National

Seashore.

We strongly oppose H.R. 2438. This bill would effectively eliminate the railbanking provision in the National Trails System Act,

thus impeding preservation of rail corridors for future transportation needs, as well as hindering the creation of new trails in the

interim. Railbanking is entirely voluntary on the part of the railroad and the local community. This provision of the statute merely

allows those groups to decide whether and how a corridor should

be banked for the future.

The National Park Service role is purely advisory. The Act directs us to encourage the development of trails on abandoned railroad rights-of-way for possible future uses. To that end, we notify

State and local governments that railroad rights-of-way may be
25

available for trail use. The action, then, is in the hands of the community and the railroad.

Each year we receive about 150 notices of impending abandonments from the railroads. That amounts to about 2,500 miles a

year. From October 1995 to October 1996, 118 corridors totaling

1,673 miles were proposed for abandonment. Communities requested railbanking on 34 corridors for a total of 730 miles.

Railbanking has become an effective tool for the preservation of

railroad corridors. In the 10 years that it has been in place, it has

led to the development of 45 trails totaling 1,238 miles in 20

States. We believe the communities should continue to have this

option.

The Department strongly supports H.R. 1995, and we urge its

early enactment. The bill has five important components. No. 1, it

preserves the long-term productive agriculture in the region. No. 2,

it furnishes essential watershed protection of Tomales and Bodega

estuaries. No. 3, it maintains the land primarily in private ownership. No. 4, it creates a model public-private partnership, and, No.

5, it protects the significant public investment in the Point Reyes

National Seashore.

The legislation proposes an innovative and cost-effective method

to protect the 38,000 acres of coastal agricultural landscape. This

protection would primarily be accomplished through acquisition of

development rights and conservation easements, all from willing

landowners. With conservation easements, land would remain in

private ownership and would be protected from incompatible development, and would contribute to the local economy and the tax

base. Preserving the undeveloped lands in the farmland protection

area is integral to protecting park values and the long-term health

of the Tomales and Bodega Bays.

The compatible pastoral setting of the eastern side of Tomales

and Bodega Bays is unquestionably in jeopardy. Growth throughout Marin County is high. Open pastures and ranches are being

sold and segmented for various types of development. Major landuse changes in the lands forming the eastern slope of Tomales Bay

will directly and negatively impact public enjoyment of Point Reyes

National Seashore.

A private, non-profit group, the Marin Agricultural Land Trust,

MALT, has made significant headway in protecting the rural setting of these critical watershed lands. The 13-year-old group has already purchased conservation easements on 11,000 acres within

this proposed 38,000-acre protection zone. Because of MALT’s efforts, the acquisition of these easements by the Federal Government would not be needed.

Similarly, the Sonoma Land Trust has begun the purchase of

several properties in the northern part of the protection area.

These local efforts have already contributed close to $15 million to

achieve the overall goals of the bill. H.R. 1995 would authorize a

Federal partnership, a Federal contribution in order to complete

the overall protection of the area.

H.R. 1995 has received bipartisan support and the endorsement

of many groups, including the Marin County Board of Supervisors,

the Sonoma County Board of Supervisors, the American Farmland
26

Trust, the Inverness Association, the West Marin Environmental

Action Committee, and the West Marin Chamber of Commerce.

The National Park Service believes now is the time to support

these innovative partnership efforts. If H.R. 1995 were enacted,

funding for easement acquisition would be contingent upon Federal

budgetary constraints and the administration’s funding priorities.

This concludes my statement. I would be pleased to answer any

questions you all might have.

[The prepared statement of Ms. Stevenson may be found at end

of hearing.]

Mr. HANSEN. Thank you very much. Ellen Kitay, we’ll turn the

time to you for 5 minutes.

STATEMENT OF EVELYN KITAY, SENIOR TRIAL ATTORNEY, OFFICE OF THE GENERAL COUNSEL, SURFACE TRANSPORTATION BOARD

Ms. KITAY. Thank you, Mr. Chairman. I’m Evelyn Kitay of the

General Counsel’s Office at the Surface Transportation Board.

I’ve been involved in a number of judicial proceedings relating to

the implementation of the existing Trails Act by the Board and its

predecessor, the ICC. Accordingly, I’m here to testify regarding the

role of the Board in implementing the existing Trails Act and to

present views on H.R. 2438. With me at the table today is Joseph

Dettmar, Deputy Director of the Office of Proceedings.

The existing Trails Act gives interested parties the opportunity

to negotiate voluntary agreements to use, for recreational trails,

railroad rights-of-way that otherwise would be abandoned. The Act

is intended to preserve railroad rights-of-way for future use, which

is called railbanking. Many railroads do not own the land on which

their track lies. Rather, they have easements over the land of adjoining property owners.

Unless those easements are railbanked by converting them to a

trail, they are extinguished, and the land reverts to the adjoining

property owners when the Board authorizes the abandonment of

the line and the abandonment authority is exercised. Some rightsof-way that were made into trails have been reactivated as active

rail lines.

The Board has adopted specific procedures to implement the existing Trails Act. To begin the trail use process, a trail proponent

must file a formal request in an actual abandonment docket. A

trail-use request has no effect on the Board’s decision as to whether

to grant a railroad permission to abandon the line. It is considered

only after the Board has decided to permit the abandonment.

The formal trail use request must include a statement of willingness to assume financial responsibility for the property, and the

trail use proponent must explicitly agree to assume responsibility

for paying taxes and for any liability.

When the Board has decided that an abandonment will be permitted on a particular line, and a trail use request has been received regarding that line, the railroad must notify the Board of

whether it is willing to negotiate a trail use agreement. If the railroad declines to negotiate, the abandonment will proceed as if no

trail use request was ever filed.
27

On the other hand, if the railroad agrees to negotiate and no

offer of financial assistance to continue rail service on the line is

received, the Board will impose a trail condition which gives the

trail use proponent time to negotiate a trail use agreement with

the railroad. Offers of financial assistance take priority over trails

use requests, because they are offers to continue actual rail service

on the line.

The Board has no involvement in the negotiations between the

railroad and the trail use proponent. It does not analyze, approve,

or set the terms of trail use agreements. If a trail use agreement

is reached, the parties may implement it without further Board action. If no trail use agreement is reached, the trail condition expires and the line may be fully abandoned.

The Board is not authorized to regulate activities over the actual

trail, and the Board has no authority to deny the trail use request

if the statute has been properly invoked and the railroad has consented to negotiate. In short, the Board’s jurisdiction is ministerial,

and the Board cannot decide on whether or not railbanking or trail

use is desirable.

H.R. 2438, if enacted, would dramatically alter the Board’s ministerial role under the Trails Act. Under the current statute, the

Board must impose a trail condition permitting interim trail use on

a rail line approved for abandonment whenever the statutory criteria are met. The Board has no discretionary decisionmaking authority in this area and no substantive authority, other than to

carry out the essentially automatic provisions of the statute. Furthermore, the Board is not authorized to regulate a trail and its

use.

Under the proposed bill, however, the Board’s ability to impose

a trail condition would become discretionary; that is, the Board

would be required to seek to determine if trail use is appropriate

in a particular case. Requiring the Board to approve and oversee

particular trails in this manner would be beyond the Board’s primary mission, which is to oversee the economic regulation of railroads, motor carriers, pipelines, and non-contiguous domestic water

trade. The Board has no particular expertise or knowledge concerning recreational trails. Congress only gave the agency a part to

play in the formation of trails because of the railbanking element

of the Trails Act.

Furthermore, the Board has limited resources. It currently has

only around 130 employees to handle approximately 500 pending

cases. The Board lacks the staff that would be required to approve

and oversee individual trail use requests. In short, involving the

Board in trail use approvals would be neither consistent with the

agency’s mandate, nor feasible given its existing resources and expertise.

H.R. 2438 also raises additional concerns. First, the bill could result in a delay of the exercise of a railroad’s right to abandon lines

that are no longer needed for current rail service until the Trails

Act process under the legislation is completed. This would be

counter to the mandate of the law that the Board now implements,

which is to facilitate and expedite abandonments.

Second, the bill provides no legal standards by which the Board

is to exercise the discretion the agency would be given with respect
28

to the granting of trail authority. This could create inconsistency

in the granting of trail use authority and vulnerability with respect

to likely judicial appeals.

Third, the bill raises the possibility of our having to do an environmental review under NEPA in every case in which a trail proposal is made. Such a requirement would impose additional burdens on the already strained resources of the Board.

Finally, the bill creates confusion within the provision eliminating Federal preemption by appearing to give the vesting of any

reversionary property interests pursuant to State law priority over

the creation of any trail and railbanking. This provision could

render the exercise of the Board’s discretion with regard to trail

use fruitless in many cases, because there could be no trails under

the proposed bill if there would be a reversion under State law.

In summary, the role that the Board plays under the Trails Act

is not intended to promote a position on the issue of the conflict

between reversionary property rights and trails. The Board’s existing responsibilities with respect to trails are ministerial and do not

and are not intended to resolve this conflict from a policy perspective.

However, the proposed bill appears to impose a burdensome regulatory responsibility on the Board to determine whether a trail

should be created that could be rendered a nullity, in many cases,

by the operation of State law giving effect to reversionary property

rights. This exercise, which is not consistent with the Board’s primary mission, would be time-consuming and a strain on its already

limited resources, and could ultimately be a fruitless effort by the

Board.

This concludes my oral remarks, and I would be happy to answer

any questions that you might have.

[The prepared statement of Ms. Kitay may be found at end of

hearing.]

Mr. HANSEN. Thank you.

Questions for our witnesses? I’ll limit the members to 5 minutes;

the gentleman from American Samoa.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. Ms. Kitay—am

I pronouncing the name correctly?

Ms. KITAY. Yes.

Mr. FALEOMAVAEGA. I think, basically, as a matter of our national policy, not so much in the area of the fact that at one time

we’ve had 270,000 miles of railroad corridors all over the country,

and now because of abandonments since 1990, it’s only 141,000—

and correct me as I’m going along on the history of our railway system. We’re having a difficult time even getting Amtrak on the

track, as far as getting proper appropriations and funding for the

process.

My question is, isn’t it the bottom line—because of the Congress

seeing this as our national policy—that we have to preserve these

easements so that at one time, or maybe sometime in the future,

that if our railroad system would have a need for these easements

to go back, if there’s a need economically?

Ms. KITAY. Yes. In the Preseault case in the Supreme Court, the

Supreme Court clearly found and approved the railbanking purpose

of the statute, and if there is railbanking, then the line remains
29

within the national transportation system and remains available to

be restored to rail service. So that is clearly a policy of the existing

Trails Act.

Mr. FALEOMAVAEGA. Then the Congress turned around and made

it very technical, saying it’s still for public use because it’s an easement and there’s really not been an absolute—what do you call it—

alienation—of the land that is used as an easement by these railroads. Am I correct? So instead of doing it, now we come out with

this system of putting in trails, rather than giving back the lands

to the original owners. Because it seems to me that this is the

heart of Congressman Ryun’s bill; they don’t mind having trails,

but they do want to be compensated after abandonment. This is

what I sense, and correct me if I’m wrong on this.

Ms. KITAY. No; I think that’s correct. I think under the existing

statute we have no discretion. We have to stop the abandonment.

The abandonment doesn’t go forward if there is a proposal for trail

use, assuming that the statutory criteria are met. And the Supreme Court, in the Preseault case, found that the landowner’s

right was to seek compensation, by filing an action in the Claims

Court, and there have been several of those actions that have been

filed and are pending.

This statute would change that because—or at least it can be

read to change that, to suggest that—where there are easements

and where the easements would be extinguished under State law,

you’d never get to the trail in the first place.

Mr. FALEOMAVAEGA. And I’m sorry Mr. Ryun is not here, but I

think there was an additional condition that if these landowners

get their land back, they can then develop the land in some other

form different from the trails system.

Ms. KITAY. Right. Well, once there is an abandonment and once

the abandonment authority is exercised, then the land is no longer

within the national transportation system and it can be developed

for any use, and the right-of-way would have to be re-acquired to

bring it back as a rail line, which is often a very costly undertaking.

Mr. FALEOMAVAEGA. Let’s say there’s a corridor 100 miles long,

and the landowner gets it back—maybe 50 miles of that. Obviously,

this is going to break the trail system, because the landowner may

decide, ‘‘Well, I want to develop this 50 miles; it belongs to me as

a landowner.’’ What is this going to do to the railway system, as

far as the original intent of the Congress? We’re not going to have

a rail system.

Ms. KITAY. Well, there have been a few railroad rights-of-way

that have been restored.

Mr. FALEOMAVAEGA. OK, so in other words the railroads will just

have to go around these landowners who say, ‘‘Well, 50 miles belongs to me.’’ And they’re every much entitled to it as a landowner.

Ms. KITAY. Well, I think it’s——

Mr. FALEOMAVAEGA. My question is how the railway system is

going to redevelop itself should the railway system say, ‘‘Well, we

want to use the easements again because our railroad system in

the country needs to be brought back to life again.’’

Ms. KITAY. Well, there are ways; eminent domain is available,

and there are other ways in which a railroad can acquire land. It’s
30

just more expensive and more cumbersome to do it that way than

it would be under this kind of a statute.

Mr. FALEOMAVAEGA. Now don’t get me wrong. I absolutely believe in the right of landowners to be duly compensated. But when

the easements were taken, these landowners never received a cent

from the Federal Government?

Ms. KITAY. I think it’s not clear. They could have received money.

We’d just have to go back to 1899 or what happened in 1910, and

that’s something that we don’t know about. Presumably they paid

less for their land than they would have if there hadn’t been an

easement or they got money from the railroad.

Mr. FALEOMAVAEGA. They were compensated for fair market

value. I mean, isn’t this a Federal policy in the first place, that in

a taking for a public purpose that the landowner should be compensated?

Mr. DETTMAR. Well, Congressman, landowners——

Mr. HANSEN. State your name, please, for the record.

Mr. DETTMAR. I’m sorry; I’m Joseph Dettmar, the Deputy Director of the Office of Proceedings at the Surface Transportation

Board.

Landowners have a claim under the Federal Tort Claims Act in

the Court of Claims, but as I believe as has already been stated,

none of those claims have been successfully prosecuted; so no landowners have received any money for any land.

Ms. KITAY. Well, it’s under the Fifth Amendment. They can bring

a takings claim, not a tort claim. It’s a takings claim under the

Fifth Amendment, and in one case a taking was found, and the

amount of damages has not yet been set. That is the Preseault case

that arose out of the Supreme Court case, and there are several

cases that are now pending. One is pending in the Federal Circuit,

and there are two or three pending in the Claims Court now.

Mr. FALEOMAVAEGA. Mr. Chairman, my time is up. Thank you.

Mr. HANSEN. Are the landowners included in the negotiations

with the trail proponents and the railroad?

Ms. KITAY. Not directly. The way the statute was drafted and the

way it’s been implemented by the Board, landowners get notice of

the proposed abandonment and the possibility that a particular

right-of-way can be used as a trail, but the voluntariness and the

beginning of a negotiation process is between the trail proponent

and the railway.

Mr. HANSEN. What’s the history of this, then? Have landowners

become an integral part of it? If they’re given a notice, like we get

notices of water—things that somebody’s doing—that’s all they get?

Ms. KITAY. They get notice of proposed abandonments. They have

participated in our abandonment proceedings before the Board;

they have challenged several decisions where we imposed trail conditions in the courts, with varying degrees of success.

Mr. HANSEN. But they’re only a party if they become an intervenor then; is that right?

Ms. KITAY. They can file comments and participate in our—yes;

but that’s correct; that’s the way the statute was written.

Mr. HANSEN. So that’s like John Q. Anybody. I mean, I could do

that in Salt Lake City. I could intervene on an issue in Hutchinson,

Kansas if I so desired. I mean, anybody can do that. So they’re not
31

given any particular greater standing than anybody else; is that

right?

Ms. KITAY. That’s right. In our proceedings, that’s right.

Mr. HANSEN. Oh, I see. The gentlelady from—the gentleman

from Iowa——

Mr. RYUN. If you could yield for a minute.

My question is, have any interim use requests been considered

or denied as a result of landowner appeal?

Ms. KITAY. No. Well, there are cases where we have found that

the abandonment had been fully exercised prior to an imposition of

a trail condition, and we have revoked trail authority on that

ground. And we have also made it clear that if a landowner or anyone else comes in and shows that the statutory requirements of the

Trails Act are not being met, that we will revoke trail conditions.

Mr. RYUN. Well, no, because the landowner owns the land, and

that’s what we’re trying to establish here.

Ms. KITAY. Right. The land—I think the way that the statute

was written and the way that the board has implemented the statute is that the landowner’s real right is to go to court and bring

a takings claim.

Mr. RYUN. May I make a point on that? That’s what we were discussing earlier, that they can go to court, but the cost of going to

court and coming back here exceeds the actual cost of the land. In

many cases it would cost them a great deal of money. In fact, I

gave a point earlier that it can cost as much as $100,000 for land,

let’s say, that’s worth $30,000, in addition to the number of years

that it’s tied up in court. So it is extremely difficult for the landowner to be able to do this process.

Mr. HANSEN. That was on my time.

The gentlelady from Washington.

Mrs. LINDA SMITH. Thank you, Mr. Chairman.

I think my first question is for Ms. Stevenson—and I could be

confused, but I don’t think so, because I’ve gone through some of

these. But you stated in your testimony that railbanking is entirely

voluntary between railroads and local communities. And that

railbanking requires consensus—is what you said—among local

community leaders and their constituents.

I’m really not aware of the provisions of section 8(d) that prevent

the conversion of railroads, or railways, into recreational trails, absent community or constituent consensus. So I guess, how does this

statute require consensus from local communities, which is part of

your testimony?

Ms. STEVENSON. I think actually that, when Ms. Kitay explained

her testimony, hers probably was more clear than what we had

written. It doesn’t require total consensus from the committee; it

requires an agreement between the railroad and the community

group, or the rail proponent in order for a railbanking provision to

go ahead.

Mrs. LINDA SMITH. OK. So it isn’t necessarily consensus; it’s just

an agreement of the parties present?

Ms. STEVENSON. Consensus between the two parties——

Mrs. LINDA SMITH. Just the two parties.

Ms. STEVENSON. [continuing] not necessarily consensus of the entire community. That’s correct.
32

Mrs. LINDA SMITH. OK. So the landowners themselves could be

excluded from this consensus?

Ms. STEVENSON. That’s correct.

Mrs. LINDA SMITH. Thank you.

I would reserve the balance on my time for the proponent of this

particular bill.

Mr. HANSEN. Thank you.

The gentleman from Puerto Rico.

Mr. ROMERO-BARCELO. I have no questions, Mr. Chairman.

Mr. HANSEN. The gentleman from Kansas, do you have any questions?

The young lady from California. We’ll recognize you for 5 minutes.

Ms. WOOLSEY. Thank you, Mr. Chairman.

Ms. Stevenson, would it be all right if Superintendent Don

Neubacher sat with you?

Ms. STEVENSON. It would be a pleasure.

Ms. WOOLSEY. Thank you very much.

My question really is directed to him, because it’s about the history of the Point Reyes National Seashore as it was originally proposed.

Mr. Neubacher, it’s my understanding that—and you weren’t

there then; you’re way younger than I am, but you know the history better than I. It’s my understanding that there was a lot of

opposition when the initial Point Reyes National Seashore was proposed. This opposition was based on the fears of the bill’s consequences and of intrusion of Federal Government in a way of life.

I’d like to know, do we still face those worries with the local

ranches within that area?

Mr. NEUBACHER. Unequivocally no. Actually, we have a very

positive relationship with the ranchers with inside the National

Seashore at this point in time. We still have 18 ranchers operating,

and we get along extremely well. In fact, there was—part of the

original legislation that prohibited from purchasing any of those

ranch complexes; is later the ranchers came to Congress, and ask

for authority to work a little bit more closely with us, and gave us

the authority to buy interest in those lands to.

To this day we still have about 20,000 plus acres of active ranching going on in Point Reyes National Seashore, and again, it’s extremely compatible, and as your proposing this bill, we endorse the

idea of extending that to the East Side of Tomales Bay because of

the positive relationship.

Ms. WOOLSEY. Well, would you take a step across the bay now

to the farmland protection area, and talk about how that would enhance our Federal investment in the national park.

Mr. NEUBACHER. The Tomales Bay estuary system—which is

really one of the largest on the west coast—is extremely productive.

There’s like 50,000 shore birds. We have Coho salmon, we have

steelhead. Ten percent of the Coho population left in California—

goes up Waganeigus Creek, which comes out of Tomales Bay.

We have found over time that again this relationship with the

pastoral setting is very compatible with the park setting. What we

don’t want—there is numerous studies that urbanization actually

adds more deterioration to the environment. So we’d like to work
33

with the local community. And this was really initiated by the local

community to ensure that the pastoral setting continues, because

again, we have a very clean estuary; we have a good system; it’s

working, and want to ensure that it continues into perpetuity.

Ms. WOOLSEY. OK, thank you very much. Thank you, Mr. Chairman.

Mr. HANSEN. Superintendent, how many acres have you purchased since establishment of the park?

Mr. NEUBACHER. Pardon me?

Mr. HANSEN. How many acres have been purchased since the

park was established?

Mr. NEUBACHER. The total authorization for Point Reyes is

71,000, and we’ve purchased about 65,000. The rest is primarily—

other agencies own it. For example, the Coastguard. And there

were some agreements with AT&T that we wouldn’t purchase that

land. Actually, the outstanding land that we haven’t purchased, the

very small parcels; we’re probably going to do those—actually, our

land protection plan calls for less than fee acquisition. Total outstanding is 200 to 300 acres.

Mr. HANSEN. How much would that be agricultural ground?

Mr. NEUBACHER. Left?

Mr. HANSEN. Yes.

Mr. NEUBACHER. None.

Mr. HANSEN. None? How much agricultural ground has been

purchased?

Mr. NEUBACHER. Actually, I’d have to submit that for the record.

The original pastoral zone created by the legislation was 26,000.

And we did purchase more of that, and I could look that up, but

I don’t know the total acres initially.

Mr. HANSEN. At one time was this all agricultural land?

Mr. NEUBACHER. A lot of the park was agricultural land. It is

heavily wooded in the southern section of the park. In the initial

concept for the park, when it was supported by the Board of Supervisors, they divided the park up into a public use area, and a pastoral zone. And we have really kept to that original agreement.

And again, we’ve worked the ranching community. And one thing

we’re going to enter today is testimony from the ranchers that are

in the park now, saying that we’ve treated fair, that we have a

good relationship, and that they work well with us.

Mr. HANSEN. How much money does this cost the taxpayers?

Mr. NEUBACHER. The authorized ceiling for Point Reyes National

Seashore is approximately $62 million——

Mr. HANSEN. So you still have some——

Mr. NEUBACHER. [continuing] the majority of that, $62.5 million.

Mr. HANSEN. So how much more do you feel you need to accomplish what would be in Mrs. Woolsey’s bill?

Mr. NEUBACHER. With Woolsey’s bill, actually the appraisal—the

authorized ceiling in Woolsey’s bill is $30 million. The appraisal

that the Park Service did—and this was a very rough appraisal—

that we could purchase everything, which means the conservation

easements and the 38,000 acres—about 2,000 of that is state

lands—with about $40 million. And again, there’s already been a

commitment of 11,000 acres, which is worth about $15 million. So

the rest of the money would come from the match.
34

And again, this is a partnership. We were approached by the

local community—the partnership between the state, the local community, and the Federal Government. So what we’re trying to do

is do the Federal commitment, because we have such a significant

resource here, next to Tomales Bay and in Point Reyes National

Seashore.

Somebody mentioned earlier, the public truly is being served. We

have 2.5 million visitors coming to this area, and we contribute

about $107 million to the economy.

Mr. HANSEN. Well, what is the significance you point out? I

mean, if we talk Yellowstone, we can all figure out what that is,

the Grand Canyon. For those of us who haven’t the opportunity to

visit this park, give us a quick summation of the great significance

on it.

Ms. STEVENSON. Well, if the gentleman will yield. You have to

remember you’ve been invited out there many times.

Mr. NEUBACHER. And we would love to have you come out.

Mr. HANSEN. That’s true. We’re invited everywhere around the

world, and it’s just hard to prioritize it all.

Mr. NEUBACHER. The park’s significance, really—when national

seashores were established we were trying to protect scenic coastline, and within the park we have a lot of maritime history. We

have 147 miles of hiking trails. We have wildlife that abounds. I

mean, we serve a lot of visitors, so the recreational and scenic opportunities are phenomenal. And we also have the oldest shipwreck

on the west coast. We have the St. Augustine. You may have read

about it recently; we’re trying to uncover it. It’s where the first European contact occurred in California; Sir Francis Drake landed

there in the 1500’s. The significance overall for the resources, cultural and natural, are phenomenal, and of national significance.

Mr. HANSEN. I’m not asking you to be a land appraiser, but the original Act—what, it was $14 million. And yet you folks have

spent $65 million. How do you feel $30 million will handle it all?

The rule of thumb around here is it takes longer and cost more

on everything we do.

Mr. NEUBACHER. We can submit this for the record, but we’ve actually gone through—the conservation easements have been purchased by the Marin Agricultural Land Trust. So we have a lot of

history, and actually the prices to a certain extent have stabilized.

We actually did an estimate for a conservation easement, we feel

very certain—and again, this was done by qualified appraisers. I

personally believe that we’ll do the job.

Mr. HANSEN. The gentlelady from Washington, did you want to

reclaim any time?

Mrs. LINDA SMITH. I just had one question of Ms. Kitay. Am I

saying that right?

Ms. KITAY. K-i-t-a-y.

Mrs. LINDA SMITH. Kitay. You made a comment, that I just

wasn’t sure if I understood it fully. You were concerned about

NEPA review being required because of this particular bill. I guess

I wanted to know why trails shouldn’t be—or should be exempt

from NEPA review, or did I not understand what you were saying?

Ms. KITAY. Well, we had a court case involving NEPA, and

whether we had to do a environmental analysis of every trail, and
35

the 8th Circuit in a case called Goos v. ICC, found that because our

role under the Trails Act is ministerial, there’s no discretionary decisionmaking involved, and therefore NEPA is not triggered every

time you have a trail proposal. And our concern here is that, if this

bill were enacted, and the Board were given discretion regarding

trail authority, that then you would have trails considered, or the

licensing or approval of trails considered, to be major Federal actions requiring an environmental review under NEPA.

Mrs. LINDA SMITH. So the jury’s out on whether or not I would

support that or not. I think there should be a lot of review before

there’s a trail. But you would say that would get in the way of producing that trail, making it more difficult.

Ms. KITAY. I think the concern that the Board has is that that

would impose additional burdens on our already strained resources,

because we have so little staff, and so many pending cases; and

that that would just create more cases that we had to do environmental assessments on or whatever.

Mrs. LINDA SMITH. So you think trails should be exempt of most

environmental assessments?

Ms. KITAY. Well, I think that—as I said, because under the current statute we don’t exercise discretion——

Mrs. LINDA SMITH. You don’t have to now; you would have to

then.

Ms. KITAY. We would have to under this bill.

Mrs. LINDA SMITH. Thank you.

Mr. HANSEN. The gentleman from Maryland, any questions?

Mr. GILCHREST. Not at this moment that would probably make

any sense, Mr. Chairman, because I’m late for the hearing, but I

hope everything’s going all right so far. I’ll have some questions

maybe for the next panel. Thank you.

Mr. HANSEN. The gentleman from American Samoa.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.

I just wanted to ask the superintendent and then Ms. Stevenson

for their comments further on H.R. 1995. I guess there’s a saying

that haste makes waste. And I just wanted to ask you, is there any

conceivable issue that was not considered, in terms of the process

that you’ve undertaken to review all the issues that were involved,

where we’ve come now with Ms. Woolsey’s proposed legislation?

I mean, how long has this taken place as far as the consultations, and meetings? I mean, this wasn’t done in a process of 3

months or 6 months, or——

Mr. NEUBACHER. No, we’re talking years. And I’ve been—Actually I worked at Point Reyes National Seashore, I worked on another project; no I’m back. And I’ve been the superintendent there

for approximately the last 3 years. And this started way before I

got there, so we’re talking 3 years plus. There’s been a lot of discussions and consultations. And I have to admire Ms. Woolsey for actually all the work she’s done working with the community. She’s

done a lot of public meetings.

Mr. FALEOMAVAEGA. OK. So this is not a Democratic or Republican bill; this is a bill that’s going to benefit the community there

in Point Reyes.

Mr. NEUBACHER. Very much so, and there’s tremendous broadbased support from the community organizations.
36

Mr. FALEOMAVAEGA. I yield to the gentlelady from——

Ms. WOOLSEY. Thank you. I would like to ask, if the Chairman’s

not going to ask a question about clarifying the section of the bill

you questioned earlier, if I should ask them. Or are you going to

ask them?

Mr. FALEOMAVAEGA. I will ask them myself.

Ms. WOOLSEY. Thank you.

Mr. FALEOMAVAEGA. Could you clarify that provision that was

raised by the Chairman?

Mr. NEUBACHER. Yes. The intent of that section is clearly what

Mr. Hansen stated, was that we could exchange lands outside the

state. So under the current Policy Act we cannot do that; it would

only be with inside the states. So that’s why we worked with the

Congresswoman to instate that. I mean, that’s—in our opinion,

would not make or break this bill. So if there’s concern we wouldn’t

oppose a change.

Mr. FALEOMAVAEGA. So in other words, Secretary Babbitt can exchange Escalante Monument in Utah with——

Mr. NEUBACHER. I’m afraid so, I guess I’d have to say.

Mr. FALEOMAVAEGA. Go ahead, Mr. Chairman.

Mr. HANSEN. Why is that necessary to have that in the bill?

Mr. NEUBACHER. Well, we were trying—there have been other

cases where I’ve worked with the Park Service, that we have found

lands in other states that we could not exchange that were really

good—the agricultural community would like to have had, but we

just couldn’t do it, and we had to go back to Congress for authority.

So we thought we’d avoid that so we could exchange lands in another location if possible. It just gives us broader authority to do

the job.

Mr. HANSEN. But in effect your amending FLPMA for this one

particular area.

Mr. NEUBACHER. That’s correct.

Mr. HANSEN. That’s dangerous, too. I wouldn’t count to heavily

on that——

Mr. FALEOMAVAEGA. I think I’m still on my time, Mr. Chairman.

Now this is not the only exception of this proposed legislation,

Ms. Stevenson. I mean, are there other instances where the secretary is authorized to do exchange of lands, or the department for

that matter?

Ms. STEVENSON. I’m sorry, Mr. Faleomavaega, I don’t know the

answer to that; we’ll have to provide it for the record.

Mr. FALEOMAVAEGA. Would you provide that for the record, because I think—I do share the Chairman’s concern if we’re setting

a precedent.

Thank you, Mr. Chairman.

Mr. HANSEN. Thank you.

We appreciate Evelyn Kitay and Kate Stevenson for being with

us, and appreciate your testimony. We’ll excuse you at this point.

And Panel No. 3 is Nels J. Ackerson, The Ackerson Group; Richard

Welsh, Executive Director of National Association of Reversionary

Property Owners; Jayne Glosemeyer; and Howard Woodbury.

We appreciate the third panel being with us at this time. You

know the rules. We’re 2 hours and 15 minutes into this hearing.

It’s going a little slower than we’d plan.
37

Mr. Ackerson, we’ll start with you, and just go across.

We’ll give you each 5 minutes. Is that all right?

Mr. ACKERSON. That’s fine, Mr. Chairman. Thank you.

Mr. HANSEN. Thank you. The floor is yours, as we say in our

business.

Mr. ACKERSON. Thank you, Mr. Chairman.

Mr. Chairman, I have submitted for the record a 7-page singlespaced statement of testimony, of which I will not have time to

read.

Mr. HANSEN. Without objection, that will be included. And all of

your testimonies in their completeness will be included in the

record, and you would like to abbreviate your testimony, by all

means, please do it.

Mr. ACKERSON. Thank you, I will do so.

STATEMENT OF NELS ACKERSON, ATTORNEY, THE ACKERSON

GROUP

Mr. ACKERSON. Mr. Chairman and members of the Committee,

I have the privilege of representing, individually and in class actions, now tens of thousands of landowners, homeowners, families,

retirees, small businesses, farm organizations, and others, in about

15 states across the nation. Like the author of H.R. 2438, Mr.

Ryun, many of my clients enjoy the outdoors and know the benefits

of recreational trails. They also in many cases are conservationists.

What distinguishes my clients from others is that they own the

land on which railroads once operated their trains, and upon which

trails are now operating or proposed. They are not adjacent landowners; they are the landowners. They own the strips of land running through their farms or their yards, where trains once ran,

every bit as much as any homeowner owns a backyard, a driveway,

or a deck.

And so, members of the Committee, I want to ask this Committee to look at two different perspectives on the railroad corridors where trails have been proposed or are operating; not just

the perspective down the corridor, but the perspective across the

corridor.

The owner’s perspective is different, because it is their land.

They not only look down the abandoned railroad, but also across

it. Looking cross the right-of-way they see the rest of their farm,

reunited for a more efficient farming operation, now that the railroad has brought to an end the agreement that allowed railroad

use on their land.

They see a backyard in which their children can play in safety

and privacy. Sometimes they see a strip of land that has become

a sanctuary for wildflowers, berry bushes, and wildlife which they

would like preserved, free from asphalt surfaces and free from traffic.

In short, what my clients, the landowners, see, is their home,

their farm, their land. Unfortunately, the perspective that has

dominated much of the debate, and not a bad perspective, but a different perspective—and it’s only bad if it’s the only perspective—

and that is the perspective down the corridor.

Railroad companies and trails advocates often fail to look at the

other perspective, across the corridor. Railroads want to be paid for

land they once used, regardless of whether they own it. Trails pro-
38

ponents see opportunities for recreational uses, and often view my

clients as greedy or disgruntled neighbors, who are troublesome in

their bothering to stop part of a trail; rather than as the owners

of the trail that is to be taken without their consent and without

their consultation for the purpose that they did not have in mind.

Now those who look down the corridor, and only down the corridor, not only miss a beautiful view of life; they also miss the fundamental point that we learned in kindergarten: you shouldn’t take

something that is not yours without first asking. That’s the first

principle. The other is, you should pay for what you take. The perspective down the corridor—when it is the exclusive perspective—

turns a blind eye to those who own the land. A trail proponent in

zeal to establish a recreational trail may presume that the railroad,

rather than the real landowner, should be approached and paid for

the land. The railroad of course likely will be happy to oblige. It’s

a rule of human nature I think—even in this city—that if you rob

Peter to pay Paul, you can often count on Paul for support.

Thus the real landowners are taken out of any involvement

whatsoever in what happens to their land. That is the perspective

that has been fostered and maintained by the present law. Owners

of the land to be taken for a trail don’t even know about these

abandonments in many many cases. Some of my clients who own

farms or little homes along abandoned railroad corridors don’t read

the Federal Register every day. They don’t get a second notice.

Some of them have no idea what’s happened until it’s done. That

is why the issues that are addressed in this bill must be addressed

seriously.

H.R. 2438 provides a way to restore balance among the various

pubic and private interests that are affected by the National Trail

System Act. Public policy should recognize and protect the legitimate interests of persons whose land is taken for a new public purpose, and whose lives and the lives of their families will be changed

forever as a result.

Those persons who are the most affected should at the very least,

have a significant role in the process, be given protection against

the loss of security and privacy, and have access to traditional land

law to enforce their property rights. The conservation, recreation,

and even national security objectives of the National Trail System

Act—and incidentally, I would like to address those national security issues if the time will permit—those objectives can be accomplished without sacrificing what has been the very fabric of society

embedded in the Constitution.

We don’t need to sacrifice constitutional safeguards. We don’t

need to eliminate the roles of state and local government. And we

don’t need to violate the simple principle, that we should never

take what is ours without first asking, and we should pay for what

we take.

I believe my time is up, unfortunately. I have addressed in my

written statement a number of misconceptions about the law and

about the facts, which I would be happy to address if anyone has

questions.

[The prepared statement of Mr. Ackerson may be found at end

of hearing.]

Mr. HANSEN. Thank you very much. Mr. Welsh.
39

STATEMENT OF RICHARD WELSH, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION OF REVERSIONARY PROPERTY OWNERS

Mr. WELSH. Thank you, Mr. Chairman and Members of the Subcommittee.

Mr. HANSEN. Would you move the mike over in front, if you

would, please.

Mr. WELSH. Oh.

Mr. HANSEN. Yes, right there. Thank you.

Mr. WELSH. Usually with my hearing problem I talked loud

enough for everybody to hear within a mile.

Mr. Chairman and Members of the Subcommittee, I’m Richard

Welsh, the Executive Director of National Association of Reversionary Property Owners, the non-profit organization dedicated to

the preservation of reversionary property rights for the tens of

thousands of property owners throughout the country.

NARPO currently is working with aggrieved property owners in

47 states. To date there is over 60,000 property owners throughout

the country affected by this rails-to-trails law. Regardless of the intentions of the supporters of the rails-to-trails movement, rails-totrails as passed by Congress and implemented by Federal agencies,

and private entities I might add, has become a terrible detriment

to the individual and constitutional property rights of members of

our United States. H.R. 2438 will go a long way to right a major

flaw in the rails-to-trails law.

When Congress passed the original rails-to-trails law in 1983,

the new railbanking policy preempted state property laws. Specifically, Congressman Ryun’s bill will eliminate this preemption. This

will not be the death of the rails-to-trails movement, as the trails

owners insist. Instead Rails-to-Trails project sponsors can acquire

land like any other entity, seeking specified land for public use.

Government and private groups can pay for the land needed from

the property owners to develop the trails. The rails-to-trails law

has programmed over 3,600 miles, across 62,000 pieces of private

property, without paying one cent of compensation for the loss of

rights; rights which the U.S. Supreme Court set seven and a half

years ago for due compensation. Jayne Glosemeyer sitting on my

left here will testify to that effect now.

Because the Rails-to-Trails Act preempt state property law of reversion, certain other state and Federal laws lose their application.

A glaring case of laws being abrogated due to the Rails-to-Trails

Act occurred near Park City, Utah in 1989, and still exists today.

When Union Pacific Railroad abandoned their line in Echo, Utah

to Park City, abutting owners expressed concerned about the nearby tailing piles from the old Silver King mine. The tailing piles lie

directly on the right-of-way and imposed an environmental risk at

that time, and even today still do.

The BLM hazardous material unit ordered an environmental survey to be conducted on the right-of-way, which was proposed for

the trail. The survey reported that voluminous amounts of arsenic,

mercury, lead, were present, and leeching into the soil and going

into the air. The report warned that children would be susceptible

to airborne carcinogens emanating from the tailing piles. Because

of the exemption from state and Federal environmental laws
40

through this Trails Act—excuse me. Because of the exemption from

state and Federal environmental review of trails, nothing was

done, and the trail was built within 20 feet of the exposed tailing

piles. If Park City would have had to abide by the state reversionary laws, more oversight of the project would have occurred,

and polluted land most assuredly would have been cleaned up.

One of the worst aspects of the Rails-to-Trails Act is that private

entities can designate and develop trails without ever being subject

to the electorate. In a case near Lewiston, Idaho, a rail salvage

company acquired an interest in a long-abandoned railroad. When

the property owners heard that a trail might be built on the rail

bed they tried to find out who owned the property and who had

control over it. NARPO was finally able to determine that the railroad was abandoned in 1985, and already the land had reverted to

the abutting property owners. But during this confusion the trails

group sold quit claim deeds to the non-suspecting property owners

that already owned the land.

One way property owners can fight to regain the use of their

land, is to convince local elected officials to oppose rails-to-trails

projects. It is difficult to succeed however, when an advantage is

provided to the trails group over landowners, through the Federal

law. In almost every instance property owners do not know about

a forthcoming project until the trail is being built through their

property. The Rails-to-Trails Conservancy, who is going to testify

later, supports this non-notification of property owners. Into the

record as part of my testimony today is the letter from the RTC

office in Washington, DC, here to an Emmet, Idaho official, where

the RTC advocates keeping the property owners in the dark until

the funding and authorization for the trail is approved. The sad

part is, RTC receives Federal program money to be used to collude

against property owners.

Interim Trail Use designation and the arbitrary control by a

trails groups has had detrimental affect to property rights. After

being designated an Interim Trail User under the Rails-to-Trails

Act, an entity can take complete control of the right-of-way, even

though it might be 400 feet wide. The negotiations between the

trail use entity and the abandoning railroad can go on for years.

The Service Transportation Board exerts no oversight before or

after issuing the trail use agreement. Meanwhile, the abutting

owners do not know who’s controlling it and who to address their

complaints to.

H.R. 2438 will prevent the preemption of state property law.

Groups interested in making trails would have to abide by state reversionary property law. Abiding by the state law would solve all

the above-mentioned problems before they occur. It a state or local

government want to develop a trail they could condemn the rightof-way and pay the property owner. This is the way our law is supposed to work.

Rails-to-Trails was written to effectively extinguish reversionary

rights. The U.S. Supreme Court has said these rights can be taken.

The court said the Constitution requires compensation. To date nobody has been paid. The property owner, Mr. Preseault from

Vermont, has been waiting, and really since 1980, when his property was originally taken, and is now a trail.
41

I want to thank the committee, and I’d be glad to answer any

questions.

[The prepared statement of Mr. Welsh may be found at end of

hearing.]

Mr. HANSEN. Thank you, Mr. Welsh.

Jayne Glosemeyer.

STATEMENT OF JANE GLOSEMEYER, LANDOWNER

Ms. GLOSEMEYER. Thank you, Mr. Chairman.

I am Jayne Glosemeyer, a landowner from Marthasville, Missouri. I came here today to tell you that the Rails-to-Trails Act may

produce trails, but in the process it destroys things much more precious; the safety and security one has in their property, and a future hope of passing down one’s heritage to their children. My husband and I learned of this government policy that prevents us from

using our own land, by reading the Sports section of the ‘‘St. Louis

Post Dispatch.’’ Landowner notification is not a provision of the

Rails-to-Trails Act.

We own and operate a farm that has been in our family for over

100 years. My great uncle, granted and recorded an easement in

1889 to the Cleveland, St. Louis, and Kansas City Railroad Company—of which I hold a copy—allowing 12 acres to be used for the

purpose of a right-of-way for a railroad, and for no other purpose.

Today, instead of a railroad, which my family agreed to, I now have

a state park running through the middle of my farm.

A landowner group, made up of community members, formed with me and spent over $150,000 to fight for our property in state

court, Federal court, U.S. Supreme Court, and now the U.S. Court

of Claims. Over ten and a half years of my life has been spent in

some form of litigation over land that I own, and I have a deed to

it. This confiscation of private land for public use has left me feeling like a second class citizen. Neither the Missouri Constitution,

nor Missouri state statutes have protected me.

The Rails-to-Trails Act is a scam, contrived by special interest

trails groups to void state railway abandonment law in order to use

my land for their purposes. Trail proponents state in a September

1988 issue of The Bay State Trail Riders Association, that

railbanking is a myth, and a way to get old railroads without having to pay for them. Railroad companies welcome the effects of this

law, because they receive money for land they do not own, nor have

the right to sell. According to the Rails-to-Trails Act my legal contract with the railroad company is a useless sheet of paper, and I

do not understand why Congress would pass a law that negates

legal contracts and renders state property law useless.

As a result of the Rails-to-Trails Act, I have found that I have

not only lost my property rights, but I am also forced to carry an

undue financial burden to provide recreational space for the general public. The Katy Trail sits 30 yards outside my front door, and

2 feet from our livestock’s pens and sheds. In addition to the privacy I’ve lost because of the trail, I am forced to rent housing facilities for my livestock, 2 miles from our farm. The potential for liability and disease from human contact with our livestock has

caused us to move our animals and prevented us from expanding

our livestock operation. Just imagine, owning plenty of land to op-
42

erate and expand our farm—our hog farm—only to have government, a government program force us to rent land because the program has made our land unfit.

Now that a recreational trail exists in the railroad’s place, we

face significant exposure to liability arising from the uncontrolled

trespass of the public, or generally ignorant of the dangers of interfering with the breeding habits of animals. Our once peaceful farm

was at risk of being sued should a trail user be injured by an animal.

One afternoon I returned home to find a woman off her bicycle,

sitting in the shade of our shed, while her child chased one of my

piglets around the field. I shudder to think what would have happened to that child if the piglet had squealed and the 600 pound

sow came to the rescue of her baby.

Representative Jim Ryun’s bill, the Railway Abandonment Clarification Act, will honor state property law, and prevent the Federal

preemption of state law, concerning how railway abandonments are

treated. Since it will remove the Federal mandate regarding the

treatment of abandonment railways and designation of recreational

trails, I will be free to deal with the State of Missouri. As you may

know, due to the lobbying efforts of the landowners along the abandoned Katy Rail line, the State of Missouri struggled with the issue

of whether to proceed with the Katy Trail, and with that I do not

object. I do object however, when the Federal Government grants

to special interest groups and railroads, both non-public entities,

the power and the authority to claim my land as their own to do

what they wish.

The Railway Abandonment Clarification Act removes the Federal

bias that converts abandoned railways into trails over the rights of

property owners. Since it is my land, I want control over how it is

used. Anyone, including the State of Missouri, should consult me

first to ask permission to use my land. I support Jim Ryun’s bill,

and encourage its immediate consideration by the Committee, and

I thank you for this opportunity to be here. And I’d be happy to

answer questions later.

[The prepared statement of Ms. Glosemeyer may be found at end

of hearing.]

Mr. HANSEN. Thank you.

Mr. Woodbury.

STATEMENT OF HOWARD WOODBURY, LANDOWNER

Mr. WOODBURY. Thank you, Mr. Chairman. I appreciate the opportunity to appear before the Subcommittee on this issue that directly affects my farm and family. Representative Ryun’s bill, H.R.

2438, the Railway Abandonment Clarification Act, is a sensible solution to the problem created when bikers, hikers, and horseback

riders want to put a trail on my land where there used to be railroad tracks.

My name is Howard Woodbury, and my brother, father and I operate a diversified farm of 4,000 acres in Eastern Kansas. On my

farm we raise wheat, corn, grain sorghum, soybeans, and cattle.

My grandfather bought this farm more than 50 years ago when the

Missouri Pacific Railroad operated the rail line that runs through

my land. Originally, the railroad was build in 1886 and served
43

Forbes Field in Topeka when it was an air force base. After Forbes

Field became an Air National guard base the rail line was used to

service some farm cooperatives in Northern Osage County, but no

longer continued north into Topeka. The particular line that cuts

across my property is a 15-mile spur from Lomax to Overbrook, off

of the Union Pacific line out of Kansas City.

When my grandfather bought our farm he understood that there

were existing easements for railroad purposes on the land. My

grandfather understood, and it has been long understood in Kansas, that railroads hold no interest in the land except as an easement. The Rails-to-Trails Act, however, has put in jeopardy the

owner’s property rights to his land which holds an easement. Kansas Law 66–525 states, any conveyance by any railroad company

of any actual or purported right, title, or interest in property, acquired in strips for right-of-way to any party other than the owner

of the servient estate, shall be null and void, unless such conveyance is made with a manifestation of intent that the railroad company’s successor shall maintain the railroad operations on such

right-of-way, and railroad owns marketable title for such purpose.

What that means is, that unless the railroad sells the right-of-way

to another railroad, the easement expires, and I regain the use of

my land. In fact, my property held another railway that was abandoned some time in the 1920’s. Consistent with Kansas state law,

the use of that land reverted back to my farm, and today I use that

land to grow hay to feed my cattle and other livestock.

Some time in 1984 or 1985 a flood caused the washout of the

Missouri Pacific railway north of my farm, between Overbrook and

Michigan Valley. Because the line was not heavily used and probably did not generate too much business for the railroad, the washout was not repaired, and rail service was discontinued on the line.

The Overbrook co-op sued the Missouri Pacific to repair the washout, and reinstate rail service for their grain elevators. The Union

Pacific railroad bought the railway shortly after the rail service returned on the line. This was particularly memorable because since

the washout repair the railway was not as sturdy as before, and

trains would travel up and down the line at approximately 8 to 10

miles an hour, blowing their whistles as they went.

In 1993, rail service was permanently discontinued, and the

tracks and ties were removed in 1996. Around this same time rumors began that the railway was to be converted into a trail for

horseback riders and recreational users. Neighboring farms like

mine, which would be affected by this conversion were concerned.

We had seen and were aware that another abandoned railway

south of Topeka was dedicated to one of these recreational trails

and never amounted to much. The right-of-way is not developed,

not maintained, and seems like a big waste of money, property, and

other resources.

My family and I do not want our land to be turned into an eyesore since, according to state law, I should be able to use the land

to graze my cattle. Some landowners from surrounding towns met

together, but we were told if we wanted to use our property it

would be a long, drawn-out and expensive legal fight. In addition,

the trail manager, who’s the director of the Kansas Horsemen

Foundation, and the former director of the Kansas Wildlife and
44

Parks, told us that they owned the land. He further stated that

anyone fencing off the corridor or attempting to use the land could

be arrested. Also the trail manager said that the trail was opened

for public use, even though it had not been developed, and he

would not be responsible to keep out trespassers. Our fears about

our land are becoming quickly realized. It is not maintained, it has

not been developed, and trespassers are a constant problem. Because the right-of-way has become a kind of no man’s land, heavy

rains have shifted rock and soil, and damaged some of the fencing.

I took it upon myself to repair the fencing to keep my cattle safe,

but have yet to be reimbursed by the trail manager. I would like

to use my land, keep it maintained, and determine its use for myself.

What really gets under my skin is the fact that by all rights this

land is mine, and I should be able to do with it what I want.

Representative Ryun’s bill makes it clear that the Federal Government does not preempt state law, with respect to the establishment of an the easement, or right-of-way, or property interest. The

people of Kansas have the good sense to develop laws and regulations under which everyone can operate. And if we have a problem,

I can get to the courthouse or the state house, without having to

travel all the way to Washington, DC to address my grievances.

Thank you.

[The prepared statement of Mr. Woodbury may be found at end

of hearing.]

Mr. HANSEN. Thank you, sir.

We’ll now turn to the members of the Committee for questions

for this panel.

The gentleman from American Samoa is recognized for 5 minutes.

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.

Mr. Ackerson, I think you’re the legal scholar here among the

panelists, and I’d like to ask just one or two questions if I may.

I take the position that you suggested to the members of the

Subcommittee that we ought to put ourselves in the position of the

landowner, so let me ask you this.

Were the landowners compensated at the time of the taking, of

the easements, historically?

Mr. ACKERSON. In some cases—if you’re speaking of easements

alone—in some cases the landowners were compensated for what

was taken, and that was only the right to cross the land. They

were not compensated for the ownership of the land. In other instances, according to the records, there was no compensation at all.

In many of the cases which we have involving railroads, the railroads cannot prove that they ever paid anything for the land, but

in some cases, no doubt, they did. And let me say, in some cases

there’s also no doubt that the railroads actually bought the fee simple interest in the land. That’s not what we’re talking about today.

But the answer to your question then, were the landowners compensated for their land? No, they were not. They were compensated

if an easement was given; they were compensated for a right to

cross the land with the railroad. And at the risk of saying too much

here, let me just say, there was a lot of reason for that. When most
45

of these railroads were built the communities welcomed them because they would carry their crops, and unite their communities.

Mr. FALEOMAVAEGA. It’s an economic benefit, obviously.

Mr. ACKERSON. That’s right. And so the railroad provided the

benefit, completely different from what now might be used as an

recreational benefit to someone else.

Mr. FALEOMAVAEGA. I’m trying to gather again what you just

stated earlier. There was compensation but in different circumstances.

Mr. ACKERSON. Well, there’s compensation for what was taken,

but there was not compensation——

Mr. FALEOMAVAEGA. It was a mixed bag.

Mr. ACKERSON. [continuing] there was not compensation for a

use after the railroad was abandoned. There was never compensation for that.

Mr. FALEOMAVAEGA. In the most instances where these lands

were involved if a railroad wants to build a rail system through my

land would I have to get permission from the state government to

contract with the railroad?

Mr. ACKERSON. Most typically in the last century when railroads

were chartered they were given limited powers of eminent domain.

And that is, they could either bargain with the landowners, or they

could cause eminent domain to be exercised, and they could take

the land. But they could only take it after paying for it, and after

having a determination that it was, (a) a legitimate public use; and

(b) that a fair price was being paid.

Mr. FALEOMAVAEGA. So your whole point of argument here, is

that if it was taken for a public purpose, and then after the railroad has no longer the need for the use as a public purpose, the

land should revert back to the landowners. That’s the basis of your

argument.

Mr. ACKERSON. Not only that, but for a specific public purpose—

and the specific public purpose was to operate a railroad. There are

other public purposes to operate power lines, to operate telecommunications lines, to operate—to have sewers, to have public

roads. These particular easements were for one purpose only, and

that was to operate a railroad. That’s what they bought or that’s

what they condemned in most of the instances we’re talking about.

Mr. FALEOMAVAEGA. Could you also share with the Committee.

I hear 100 feet, 200 feet, 15 feet; what exactly is the lateral distance involved here. I notice the tracks. It’s only about 15 feet from

that home there.

Mr. ACKERSON. This particular home happens to be in Leelanau

County, Michigan, and you’re right, that is a proposed trail. It’s

being developed as a trail right now, and it’s about 15 feet from the

family’s kitchen. There’s another home right down from the line

from that, where it’s 15 feet from the bedroom and the kitchen, and

the wife and the family was shocked to look out her kitchen window one morning to see a man on a horse right outside looking in

upon her. That’s the kind of invasion of privacy that some of these

people——

Mr. FALEOMAVAEGA. So in the process of taking, there are inconsistencies, even on the property involved here—some involved 100

feet, some 200 feet, some 10 feet from——
46

Mr. ACKERSON. Typically through the plains and in the west

they’re wider than in the east. They range from 20 feet at the very

minimum to more than 100, sometimes 200 feet.

Mr. FALEOMAVAEGA. So your suggestion is that, rather than the

railroads dealing with the landowners, the trail proponent should

deal with the landowners, if they want trails built on their land.

Mrs. LINDA SMITH. Mr. Chair?

Mr. ACKERSON. Whoever wants to use the land——

Mrs. LINDA SMITH. Could the gentleman yield?

Mr. FALEOMAVAEGA. I’d be glad to yield.

Mr. ACKERSON. If I may just——

Mrs. LINDA SMITH. Please go ahead.

Mr. ACKERSON. [continuing] just say, whoever wants to use the

land, should deal with the person who owns the land. I guess that’s

the principle.

Mrs. LINDA SMITH. Would the gentleman yield?

Mr. FALEOMAVAEGA. I’d gladly yield.

Mrs. LINDA SMITH. I think what you’re arguing for is local control who could deal with this a lot better than we can here. And

I think the argument of the proponents is that, we shouldn’t violate

local land use or state land use. And they could probably better

deal with this than we could deal here.

Mr. FALEOMAVAEGA. But I think one of the problems that I’m

faced with—and this goes right down to the bottom line of our total

mass transit system. As a matter of policy, where the railroad system or the industry comes into play, if they’re going to be doing

abandonments simply because—the railway is in trouble. I don’t

know if I’m right it this.

At one time we had 290,000 miles of railway. It was the most active form of transportation. America now would rather ride in their

cars than take the train. And this is the reason why we don’t have

125-mile bullet trains in our country, because simply we’re not into

the mass transit system as are most other developed countries.

My question is, it goes right to the fundamental issue that Congress has to make that decision, as an overall Federal policy, are

we going to continue having a railway system in place, whether or

not by abandonment now, or in the coming 25 years or 30 years?

Are we still going to be having some kind of railroad tracks to

maintain this form of transportation. And maybe our friends from

Conrail will respond to that when they testify. But that’s my concern that we have here.

Mr. ACKERSON. May I offer——

Mr. FALEOMAVAEGA. Please, by all means.

Mr. ACKERSON. The situation that we have under the National

Trail System Act right now, it seems to me puts the railway system, even for national security purposes, at great risk. Because

there was a comment made earlier that these agreements for trail

use are voluntary agreements. Well, they’re voluntary agreements

between a railroad and a trail group. It’s like three people saying—

or two people saying, let’s you and me take that fellow’s land. It’s

not voluntary for the landowner, and it’s not even supervised by

the U.S. Government. So if there is a national security risk, that

risk is there now. Unless a railroad and a trail group decide to pre-
47

serve something, the Surface Transportation Board says it has no

discretion.

Now in terms of just preserving the railroad system for other

purposes—and Mr. Faleomavaega, you mentioned a while ago that

you were concerned about a 5-acre strip interrupting an entire trail

if everyone else wanted the trail.

Well, there still can be an opportunity to accomplish that in the

traditional manner that our Constitution and our laws have directed, including the laws of this Congress. And that is, if there is

a legitimate public purpose, first establish it, and then allow condemnation to go forward. If there’s only—if as some of the trail proponent say, 70, 80, 90 percent support it, then what is stopping it

from being done in the traditional manner? And I tell you what is

stopping it. Right now it’s a matter of money. It can be acquired

cheaper from the people who don’t own it—the railroads—than it

can be from those who do.

Mr. FALEOMAVAEGA. It can also be said by the same token, because there was a commonality of an economic interest. Everybody

welcomed the railroads. So now that because of abandonment—because of economic reasons, now the whole picture has changed, and

this is where we’re at right now.

Thank you, Mr. Chairman.

Mr. HANSEN. The time has expired.

The gentlelady from Washington.

Mrs. LINDA SMITH. Thank you, Mr. Chair.

I want to make a comment to begin with. What I’m seeing is the

acquisition and the immediate taking out of the rails, as quickly as

possible, and sometimes changing of the structure around it to ensure they will not be rails again in our area. So, I can understand

the concern. Yet, what we’re dealing with today are property owners who are not considered in the decisions at all. So my concern

with the property owners is that they’re being told that by default

that a greater good than their constitutional rights needs to happen, whether it be for maintaining the railroads or whether it be

for maintaining trails, they’re somewhere in between.

So I guess my argument today is that we can’t leave them in between. They do have a superior right under the Constitution to

their rights of property, and that’s why we’re here today for this

particular bill.

I do want to commend the author for the superior job he’s done.

There’s a lot of bills before Congress right now, and to get this up

in the last 2 weeks he must have had a pretty compelling argument for the chair. But I know his passion for the rights of the

property owner are strong, and he is representing the folks very

well in his district on this issue.

I will just not ask any more questions. I don’t think there are too

many questions on this particular issue, except his bill should go

forward to push the issue of protecting private property rights,

which is the prime purpose of the sponsor. Thank you.

Mr. HANSEN. Thank you.

Gentlelady from California have any questions for this panel?

Ms. WOOLSEY. No thank you.

Mr. HANSEN. Gentleman from Kansas.
48

Mr. RYUN. If I may, I’d like to ask Ms. Glosemeyer a few questions. We’ve been discussing rights, if you will, and the entire trails

issue.

Can you perhaps touch a little bit on, on what it has cost you

in terms of the moving of our livestock to another location; some

of the costs that are involved, the renting of additional land?

Ms. GLOSEMEYER. It cost us basically $100 a month, or $100 a

week—I’m sorry—to rent housing facilities for our livestock. And

that also creates the problem of bringing feed. We have the feed

at our farm, and we have to haul it to the 2 miles away, which is

several times a week we have to do this.

Mr. RYUN. I think it’s interesting to note that when the actual

railroad was running through, your animals were very comfortable

with the railroad, and were accustomed to the sounds, and yet as

a result of this——

Ms. GLOSEMEYER. There’s were no problem with the railroad.

Mr. RYUN. [continuing] new transition, you’ve had to make quite

a bit of adjustment.

Ms. GLOSEMEYER. What caused us to have to move—like I said

in my testimony—was the threat of the trespass, which we did not

have when the railroad was there. And we felt no hindrance to improving our farm and our livestock management.

Mr. RYUN. Thank you.

Mr. HANSEN. Mr. Woodbury, Glosemeyer—if I’m saying that

right—how much of your farms—what would be the acreage size

that we’re talking about?

Ms. GLOSEMEYER. The trail is approximately a mile long through

our farm, and approximately 100 feet wide, which would convert to

about 12 acres of land.

Mr. HANSEN. And you stated in your testimony you had fee title

to that, is that right? You have the deed to it?

Ms. GLOSEMEYER. Yes, we have the deed, and we also have the

easement that was granted.

Mr. HANSEN. Do you pay taxes on that area?

Ms. GLOSEMEYER. We paid taxes up until 1985, when the State

of Missouri determined that, because it was a railroad that as a

landowner I should not pay the tax. If a tax were levied on it, I

would be paying it, yes.

Mr. HANSEN. You hold title to it, but you don’t pay taxes on it,

is that right?

Ms. GLOSEMEYER. I did up until 1985.

Mr. HANSEN. Up until 1985. Who does pay taxes, anybody?

Ms. GLOSEMEYER. No. The railroad company—excuse me. The

railroad company was levied at a tax on the property, and I believe

now the State of Missouri makes a payment in lieu of taxes.

Mr. HANSEN. So any citizen can go on that property now, is that

right?

Ms. GLOSEMEYER. Yes. It is opened to the general public, yes.

Mr. HANSEN. Is this about the same similar state with you, Mr.

Woodbury?

Mr. WOODBURY. Mine would be somewhere approximately 8 to 9

acres on my mile that I’ve—that runs through our place. My abstract from 1886, we didn’t own the property. In fact, the property

that we own is in two different half mile sections, and it was in
49

approximately six different tracks in 1886 when it was bought. Everyone of the abstracts from June of 1886 say they condemn a strip

100 feet wide, over, across, and through the property for railroad

purposes; and if the railroad—for that railroad and any of its successors, is what it says in the abstract from 1886.

Mr. HANSEN. You don’t get an annual tax notice on it now, is

that right?

Mr. WOODBURY. We pay taxes on the land, that is correct. We

don’t pay the railroad taxes. The railroad paid the farm greater

majority of taxes on that land than what we did, but they were

paying it on their tracks, not on the actual land that it was sitting

on. We paid—I still continue to pay tax on the land that it’s sitting

on.

Mr. HANSEN. I see.

Were either of you brought into the negotiations when the railto-trail thing went through? Were either of you an active part of

this?

Ms. GLOSEMEYER. No. Like I said in my statement, we read

about it in the ‘‘The Post Dispatch’’ in the Sports section that there

was the possibility of a trail being placed on the abandoned rail

corridor. And as landowners began to realize that there was the

possibility of this happening, we formed a group to take it to court

to reclaim the land as ours, according to what Missouri state law

should have given to us. But not once did anyone from the Railsto-Trails group approach us and say, this is what we would like to

do with your property. We were never a part of any negotiation,

nor was there any notice given to us directly.

Mr. HANSEN. Then apparently you weren’t approached either on

the idea of compensation for the ground?

Ms. GLOSEMEYER. No, sir.

Mr. HANSEN. So in effect, you have title to property, you don’t

pay taxes on it. You have no control over it. But you have some

kind of quasi title, I guess, therefore you can’t do anything with it;

you can’t use it; you can’t sell it; you can’t do anything, is that

right?

Ms. GLOSEMEYER. I’m not allowed to do anything with it. No, sir,

it’s part of a state park, but I do own it. My deed is still there, and

I still have an easement that says it could not be used for any purpose but a railroad.

Mr. HANSEN. What happens when you argue the fact that the

Constitution says you have to be compensated for your ground?

What’s the response on that?

Ms. GLOSEMEYER. I believe in our Constitution. I believe the

Constitution was written so that this very thing would not happen

to me; that a private group could not, without my consent, take

and use my property. I believe it was written there so I would be

part—so they would have to negotiate with me as to how my land

would be used. Did I understand your question correctly?

Mr. HANSEN. One of the greatest arguments that goes around

this Committee is taking by the government, and being compensated on it, whether it’s wilderness, waterways, roads, whatever

it is. And I guess we’re going to have to bring that back to the middle somewhere. I think we got a little extreme on some of it.

Did you have a comment?
50

Mr. RYUN. Yes, I have a question for Mr. Ackerson. I know

you’ve worked with a number of different landowners throughout

the country. Could you comment on perhaps some of those who

have actually had to buy their land back, or perhaps who have—

they don’t have use of it anymore, but perhaps they’ve had to buy

it back.

Mr. ACKERSON. One of the greatest abuses that I think has happened as a result of this Act being in place, is that persons have

seized control of the land—including railroads—not for the purpose

of converting it to a trail, but for the purpose of extracting money

from the very people who own the land, requiring landowners to

pay railroads to get their own land back under threat of taking it

for a trail. If a railroad can hold out the threat of railbanking, even

when the railroad does not own the land it can demand money

from the landowners, and yes, I’ve seen that happen in many instances.

In fact there have been instances where Federal money through

ISTEA has been used to pay the railroad, which does not own the

land, to convert the land to a trail, and we have a possibility—although it’s going to be expensive—for the landowners to be paid by

the United States by going to the Court of Claims so the United

States pays for the land once again. And there’s even a third possibility, because in some of these instances we know that the railroads have donated their land, which they don’t own, and have

taken tax deductions as if they owned it.

So we have a triple hit by the taxpayers, and we also have a double hit on the landowners, because the land they’ve already paid

for, and they own, and they’re paying taxes on, under the threat

of it being railbanked, they may have to pay the railroad for it one

more time in order to avoid railbanking.

Now we’ve seen that done through a method of bidding. A railroad will say, we’re going to railbank this, but if you landowners

want it back, you can bid more and we’ll sell it back to you, even

though we don’t own it.

Mr. HANSEN. Thank you, we’re 3 hours into this hearing. We’ve

got three panels to go. So I appreciate the patience. You’ve folks

have been here, and traveled a long way to be here. I will excuse

this Committee, and thank you for your testimony.

Panel 4 is Edward Norton; the Honorable Janice Hodgson, Mayor

of the city of Garnett; Bill Newman, and Richard V. Allen.

We appreciate the panel being with us, and you know the rules.

We’d really appreciate it if you’d stay at 5 minutes. Mayor, I don’t

know if you do that in city council meetings. I used to have a hard

time when I was in your position.

We’ll start with you, Mr. Newman, and if you could stay within

your time, fine. You’ve got to realize that on the floor right now is

a grazing bill, and our members—a lot of them are over there, and

in and out, and around and about. And I guess people in the west

have some great concerns on that, so no one’s sliding you; we’ll

read a lot of your report.

Mr. NEWMAN. Mr. Chairman, if it’s alright with you, could I yield

to Mr. Norton to go first?

Mr. HANSEN. Whatever makes you folks happy.

Mr. NEWMAN. Thank you.
51

Mr. HANSEN. In what order do you want to go now?

Mr. NORTON. I’ll be glad to go first, Mr. Chairman.

Mr. HANSEN. All right, then 1, 2, 3, 4. Is that alright, in that

order?

Mr. NORTON. That’s fine.

Mr. HANSEN. All right. Watch the clock.

STATEMENT OF EDWARD NORTON, BOARD MEMBER,

NATIONAL TRUST FOR HISTORIC PRESERVATION

Mr. NORTON. I’ll watch the clock very carefully. And thank you

for the opportunity to testify this morning. I always look forward

to testifying before this Subcommittee. Your jurisdictions touches

subjects that are near and dear to my heart, and none more so that

preserving our nation’s rail corridors and our rail trail system.

On just a very personal note, as a young boy I used to ride with

my Uncle Stewart, up the C&O line, from Ashville, Kentucky to

Elk Horn City, on his locomotive, and I can honestly say that with

respect to the Rails-to-Trails Conservancy, the national group that

is involved in this issue, I was present at the beginning in the early

1980’s when this movement got underway. So this is a subject that

I’ve had some familiarity with all along.

The subject of this hearing this morning touches a subject within

the jurisdiction of this Subcommittee that I think requires careful

balancing of the different interests and values involved; private

property rights, and private property values, as well as broader societal interest. And I think that in many cases—and this is exactly

one—that many times those interests are much more compatible,

and in fact reinforcing than they are in direct conflict, and that we

can solve these things without taking a blunderbuss or meat ax approach to them.

I should also add that I’m testifying today on behalf of, not only

the Rails-to-Trails Conservancy, but also the Surface Transportation Policy Project, which is a coalition of more than 150 organizations and individuals that include state and local government;

the National League of Cities, the National Council of State Legislatures, and many organizations, and certainly the total membership of the Surface Transportation Quality Project probably exceeds

2 million people.

To get really right to the heart of the matter, we oppose this legislation. We believed that it would effectively destroy the national

railbanking system, established under section 8(d); that it would

destroy many of the benefits—additional benefits—of interim trail

use under the present law; that it will really create—or eliminate

any incentive for railroads to preserve their unused corridors. It

creates a cumbersome, and burdensome, and confusing administrative process. And most important, for purpose of what we’ve heard

this morning, it is our view that this bill will really not provide any

significant protection to private property rights of the adjacent

landowners.

We acknowledge that the private property rights of adjacent

landowners are an important subject that must be addressed in

any statutory arrangement like this. We are sensitive to those constitutional rights. We look to try to create expeditious, efficient

means to resolve those rights, and to provide for compensation
52

where compensation is due under either state or Federal law, but

this bill does not accomplish that purpose.

Let me very briefly respond to the remarks that have been made

earlier about the origins and the implementation of section 8(d). I

happen to have been around when this matter first began to move,

and I really don’t remember what happened in the House of Representatives, and I looked at this again last night.

I can tell you that the sponsors of this provision in the Senate—

Senator Jim McClure form Idaho, Senator Malcom Wallop from

Wyoming, and also Senator Dentor from Alabama. And I would

never say to any of those gentlemen, having dealt with them on

these kind of issues, that the put forward a piece of ill considered

legislation. Nor has the implementation of this bill been ill considered, and its implementation really is not one that has been left

to private rails-to-trails groups and also to the railroads.

If you look just at the Midwest for example, the George

Michaelson Trail in South Dakota, which is 110 miles and named

after Republican Governor George Michaelson. It’s a federally

banked rail trail. The Cowboy Trail, which was 320 miles recently

discovered in Nebraska, and it was railbanked under the leadership of Governor Nelson. In that case the rail detail group was in

fact the state agency. The same is true of the Katy Trail, supported

and railbanked by Republican Governor, John Ashcroft. And certainly the Prairie Spirit Trail in Kansas was railbanked under the

leadership of former Republic Governor, Mike Hayden. The state

plays—and in all of those cases, with the possible exception, I’m

not quite sure of South Dakota, the state is in fact the rail-to-trail

agency. So the notion that this is some Federal, private group and

railroad scheme fostered off onto landowners is just simply not correct in neither the legislative history nor the subsequent implementation of that law would suggest that.

With respect to the issue of property rights, which I’d like to

squarely address, it’s our position on this that people who are in

fact actually agree have a perfectly added existing remedy to which

they can go. We would be delighted to work with members of this

Committee and the other interested groups to make sure that is

both expeditious and fair. But it is simply not right to say that

under present law, including the Supreme Court’s interpretation of

that law, that state law is totally preempted, and that person’s

right and their right to exclusive ownership under the right-of-way

is preempted by Federal law. That in fact is the holding of the second round of the Preso case, decided by the Court of Appeals here

in Washington, DC last year.

It should be absolutely clear that the Supreme Court decided 9

to 0, without dissent, that section 8(d) is constitutional. And the

Court of Appeals have decided that property owners do have a

claim—if they do have a claim—if they can establish ownership

under state law, they have an existing remedy to which they can

turn in the U.S. Court of Claims, and state that law—their rights

to property will in fact be determined by state law.

I see my time is up, and I’ll be glad to answer any further questions.

[The prepared statement of Mr. Norton may be found at end of

hearing.]
53

Mr. FALEOMAVAEGA. [presiding] Thank you, Mr. Norton.

Mayor Hodgson.

STATEMENT OF HON. JANICE HODGSON, MAYOR, CITY OF

GARNETT

Ms. HODGSON. Thank you.

Good afternoon, Mr. Chairman, and Members of the Committee.

My name is Janice L. Hodgson, Garnett, Kansas, in the heartland

of the Honorable Ryun’s district. I’m accompanied to this hearing

by Mr. Scott Lambers, city administrator of Ottawa, Kansas. He

carries with him a letter from their mayor, and I carry one from

my city manager that I would like to have entered into the record.

I am the mayor of a community in Kansas which has a railbank

corridor, which runs directly throughout town. We currently receive

a quality of life benefit from the National Trail System Act because

we have a wonderful linear park, which connects both or city parks

and reservoirs with the town square. the Prairie Spirit Rail Tail

between Richmond and Welda, Kansas, with Garnett as a central

point, is now completed, and it’s providing tremendous economic

development and tourism results for the city of Garnett. Users are

experiencing a healthy safe place to walk, ride and bike as they

enjoy all that nature has to offer. Ground breaking ceremonies for

Phase II from Richmond to Ottawa occurred just last Friday, October 24th. This is the first major tourism project for this area, and

the first rail trail in the State of Kansas. The $1.3 million project

was started by the Kansas Department of Wildlife and Parks, and

the Kansas Department of Transportation. This project was funded

by ISTEA funds, and we wish to thank the United Congress for authorizing the highway transportation moneys for this use. We were

required to provide 20 percent of the funds to complete this project,

and these funds were provided by state and local government, and

private contributors.

The city of Garnett, through its economic development office, is

keeping a close eye on the use of the trail, as well as the impact

that it has on our local economy. I promise that we will do everything possible to ensure its continued success. We are committed

to maintain 3 miles of the trail that runs through our corporate

limits. Garnett is a rural community of 3,200 people. We are a community of volunteers and hard-working people who understand

what an enormous project the trail is, but we are willing to work

hard to provide a quality of life environment, not only for our citizens, but for the many visitors that we are attracting to our area.

Sales tax collections reflect a 10 percent increase from 1995 to

1996, and project the sales tax revenues from 1996 to 1997 will increase by 15 percent, which we feel can be attributed somewhat to

the trail users that are coming to our city. The proposed amendment to the National Trails Act would remove the Federal law’s

ability to override state law. Supporters of these amendments want

the states to be able to decide how these corridors should be preserved, yet by the current statutes in Kansas, these right-of-ways

would be disposed of as soon as they are abandoned, and by dividing the right-of-way among the current owners of the adjacent

property.
54

There is no mechanism in the State of Kansas to preserve rail

corridors. The Kansas statute divides all property, regardless if the

land was from a direct grant from the U.S. Government to the railroad, or obtained through an easement. The railbank corridor,

which travels through our community, was established in the

1860’s, and 40 percent of the rail right-of-way was from a direct

grant from the U.S. Government. Other parcels were obtained

through donations and the purchase of easements. Without

railbanking, all of these would be divided among the adjacent landowners of the current Kansas statute.

The corridor could be lost, and with it any hope of future reactivation, either for freight or for a possible light rail connection to

Kansas City. In the meantime, our town would be deprived of a

major resource for economic development. In 1996 Governor Bill

Graves issued a 1-year moratorium on the construction of the second 15-mile section of the Prairie Spirit Trail. This would allow the

county commission for the country through which that section

passed to have the right to stop construction by simply voting not

to allow the trail to pass through their county. The moratorium

was for 1 year. In that time the County Commission never called

for a vote on the trail. After the year was over, the moratorium was

lifted, and the plans for construction began.

For these reasons, I am here to discourage any amendment to

the National Trail System Act, which would place the Act in danger, and fail to provide a nationwide plan for the conservation of

rail corridors.

I appreciate the time that you’ve given me to express our opinion. Please visit our area and the first Kansas rail trail.

[The prepared statement of Ms. Hodgson may be found at end of

hearing.]

[The information referred to may be found at end of hearing.]

Mr. FALEOMAVAEGA. Thank you, Mayor Hodgson.

Mr. Allen.

STATEMENT OF RICHARD ALLEN, LANDOWNER

Mr. ALLEN. Thank you, Mr. Chairman, it’s a pleasure to appear

here today, although I must admit that I’m more accustomed to

testifying on matters pertaining to nuclear throw weights, perhaps

China, which may be an easier topic today than the one under consideration by this Subcommittee, the Soviet Union and other national security topics.

I am Richard Allen, and I come today as a property owner near—

with property near the soon to be abandoned Southern Pacific Tennessee Pass line of 178 miles. As a committed mainstream—and by

mainstream I mean to say Reagan Republican—and as the author

of the term ‘‘Reaganaut,’’ I use that term very discretely—by disposition I’m committed to uphold in the rights of individual property owners, and I am sensitive and well aware of the property

rights issues concerned with this matter at hand.

I’d like to suggest that I limit my remarks, Mr. Chairman, to

four brief points. First, because I believe in the promotion of our

national security interest, I’m going to speak about that issue. Second, I’d like to stress the importance of preserving the famous Tennessee Pass rail line, one of only two rail corridors crossing the
55

great Rocky Mountains to Colorado. Then I would like to talk about

the level—the high level—of local support in the region for this perspective conversion. And fourth, I would like to remind members

of this Committee and Subcommittee that the nation’s railbanking

statute was signed into law by President Reagan in 1983, and

President Reagan, certainly one of our most determined and fierce

protectors of property rights.

I served two presidents in the White House on three occasions,

and other public officials, and I’ve worked and consulted widely

with Members of Congress for many many years since the early

1960’s. And as long time advocate of national defense, I am extremely aware of national transportation polices which either will

add to or subtract from the national security interest of the United

States. So I should like to say emphatically that from my point of

view, the railbanking program strongly supports our national security interest, and that eliminating or compromising the railbanking

program could compromise our ability to defend the Nation in the

time of crisis, especially a time of extended crisis.

You might recall that the interstate highway system was first

proposed by President Eisenhower as a national defense highway

system. It was proposed under that format because of the need to

move material, troops, and other vital materials from one point of

the country to another efficiently and quickly. Although our nation’s rail corridor system was primarily developed by private interest, it’s no less important to the strategic protection of our nation

in times of war or global unrest. Railbanking is a common sense

alternative to ensure that the constructed rail corridor system remains intact, even though current economic conditions may make

in infeasible to run trains on those lines.

There’s also a national security of railroads system map, just like

the national defense highways system map, and this map identifies

railroads whose preservation are considered essential for the national security. The proposed legislation H.R. 2438 would actually

preempt this important strategic system, by allowing states at

their own election, and without regard to the larger national strategic considerations involved, to make decisions about whether to

protect portions of the security railroad system. And while it may

be unusual to raise national security issues before this particular

Committee, we can all appreciate the long-range importance of

these issues.

In Colorado, with the merger of the Union Pacific and Southern

Pacific Railroad the great Tennessee Pass rail line is being abandoned. We can all marvel at the truly significant engineering accomplishments that made possible the development of this corridor,

which includes 119 bridges and more than 4,100 feet of tunnels

through the Rocky Mountains. Under current abandonment procedures, unless the corridor is railbanked under the national

railbanking statute, all 119 bridges would have to be dismantled,

or would represent a perpetual liability to the Union Pacific or the

State of Colorado. This is not an unusual problem of course, but

it is particularly acute there.

The Tennessee Pass corridor passes through 4 counties and 20

towns. Since the Union Pacific announced its intention to abandon

the line, the State of Colorado has examined many alternatives,
56

held many hearings, had a lot of citizen input, and has developed

what I would identify as overwhelming local support. Certain committees met and held extensive hearings so that public input could

be heard, and the result is a very high level of support for the trail

system as it is to be proposed there. Chambers of commerce and

other businesses are very importantly behind this.

I had the opportunity to discuss this just the other night in Colorado with the Honorable John Fawcett, the mayor of Avon, Colorado. And he informed me that there is virtually no opposition

whatsoever in the region and certainly not among his own people.

In the County of Eagle, in which Avon is located in the town of Edwards, there has been a newly instituted one-half cent transportation tax, of which 10 percent must go for rails, rather for trails.

This is an extremely important concept, and $4 million has been

appropriated from the GOCO, the Greater Outdoors Colorado

Foundation for this purpose.

Finally, I will suggest to members of this Committee and the

House of Representatives, that the statute was signed into law by

President Reagan after due consideration of his entire staff, his administration, and particularly by the ever tough and omnipresent

Office of Management and Budget. I suggest that this Committee

follow President Reagan’s leadership, and refrain from weakening

or dismantling this important legislation, which helps to implement

our national policy of preserving the built rail corridor infrastructure. Thank you, sir.

[The prepared statement of Mr. Allen may be found at end of

hearing.]

Mr. FALEOMAVAEGA. Thank you, Mr. Allen.

Mr. Newman.

Mr. NEWMAN. With your permission, Mr. Chairman, I’d like to

summarize my remarks, and you have my written statement for

the record.

Mr. FALEOMAVAEGA. Please.

STATEMENT OF BILL NEWMAN, VICE PRESIDENT AND

WASHINGTON COUNSEL, CONRAIL

Mr. NEWMAN. Good morning or good afternoon, I guess by now.

My name is William Newman, and I’m Vice President of the Washington Counsel for Consolidated Rail Corporation. And for those

who don’t know, Conrail is the fifth largest Class I railroad in

America today.

I appreciate the opportunity to testify on behalf of Conrail, and

I’m here today to extol the benefits of the Rails-to-Trails program.

But before I do that, I’d like to just take a minute to bring the people on this Committee up to speed about the Renaissance that’s

going on in the freight railroad industry today.

Many people harken back to the early 1970’s when our industry

was on very hard financial times; over 25 percent of the railroad

network was in bankruptcy. Today in good part, due to the passage

of the Staggers Rail Act, our industry is prospering. I’m pleased to

say that among other things, we offer better service, we have

newer technologies, and we are also benefiting I think from the

shortage of drivers in the trucking industry. We’re also benefiting

from the fact that there are limited resources to attend to the
57

needs of our highway system, but basically the railroad industry is

thriving today.

Notwithstanding that, we still are all businesses, looking to shed

unnecessary costs where we can. And historically as you know, the

way the industry dealt with lines that it no longer needed was to

abandon them. In fact, as I pointed out in my testimony, the Class

I railroad industry had 200,000 miles—road miles in 1965 and the

Class I network now is down to slightly over 100,000. Abandonments, which are the virtually irreversible dismantling of rail corridors, were the predominant method of disposing of these lines before the 1980’s. Then in the 1980’s two alternatives to abandonments arose; both of them we believe are better in terms of preserving existing rail service, allowing the future potential of rail

service, and improving overall public policy.

The first was the development of the short-line sale program,

whereby uneconomic lines are sold to short-line operators. Conrail

has 170 of them connecting to us today, and they’re roughly 20 percent of our business. But for the lines for which there is no foreseeable future of viable rail service, the Rails-to-Trails program has offered an alternative to abandonments, which would usually, as I

mentioned, result in the dismantling of a corridor, thus making the

corridor virtually impossible to be reconstructed for rail use.

The Rails-to-Trails program preserves rail lines by authorizing

trail use and railbanking through agreements with interim trail

users, made on a voluntary basis, subject to reactivation and interim user assumption of liability in connection with trail use, and

the payment of taxes, and without, from the railroads perspective,

burdening the abandonment process.

Congress carefully struck a balance between multiple goals in

the Rails-to-Trails program. It preserved rail rights-of-ways and

the rights of the railroads to dispose of their property as they see

fit. It induced the railroads to enter into agreements to have the

interim of trail user assume the tax and legal liabilities, which otherwise might be formidable hurdles; and facilitated the marketing

of entire rights-of-way segments in the economic development with

such marketing. It allowed for the potential reactivation of the

right-of-way by the railroad should demand arise for it, and it assured the redress for the rights of the adjacent landowners, who

have compensable property interest in the right-of-way at issue. We

believe that the courts and the ICC, which is the predecessor to the

Surface Transportation Board, have preserved the balance struck.

Let me focus if I can for a moment on the pending legislation.

Conrail believes H.R. 2438 would eviscerate the Rails-to-Trails program for the following reasons beginning with the repeal of the policy statement. In particular, the repeal of the quote, ‘‘to preserve

established railroad rights-of-way for future reactivation of rail

service; to protect rail transportation corridors’’ and ‘‘the interim

use of any established railroad right-of-way’’ not being treated as

an abandonment, combined with the non-exemption of state property law provided for in section 5 is, with the pun intended, a total

abandonment of the policy to preserve rail corridors for interim

use, with the possibility of reactivation for future rail use.

Indeed, the bill is intended to give primacy to the interests of adjacent property owners, but sacrifices the policy of preserving rails
58

rights-of-way and the possible reactivation of rail service in doing

so. Other sections of H.R. 2438 are intended to cripple or burden

the rails-to-trails process, by leaving it ambiguous as to has the liability for taxes on the right-of-way, the liability for the adjacent

property owners’ interests, and making the Surface Transportation

Board process potentially more litigious, extenuated, and consequently less predictable. In conclusion, Conrail believes the railsto-trails process works well as presently constituted, and we would

urge Congress not to tinker with it.

[The prepared statement of Mr. Newman may be found at end

of hearing.]

Mr. FALEOMAVAEGA. The gentleman from Kansas for questions.

Mr. RYUN. I’d like to direct my question, if I might, to Mr. Norton. You said something early in your testimony I would like to

look at.

While it’s true that landowners can go to claims court—and by

the way that’s a very expensive process for landowners throughout

this country to travel all the way back here to Washington—this

arrangement gives great advantage to your group to take the people’s property, and then let those landowners seek some sort of

help along the way in an appeal.

You seem to be sensitive, and you made that comment earlier

that you want to be sensitive, sensitive to compensation, landowners and property rights issues to the point where it’s an inconvenience to you.

How do you respond to that? Isn’t that the way it would be, that

it’s more of an inconvenience to you than anyone else?

Mr. NORTON. I’m not sure I quite understand the question. But

let me address the property rights issue and the issue of the cost—

the process for resolving these issues and the cost of that.

First of all, I don’t understand how this proposed legislation—assuming for the moment that we do have a costly procedure, a very

costly procedure, a time consuming procedure—that I don’t understand how this statute in any way resolves that. I don’t understand

how property owners who have legitimate claims will be really in

any different position.

The underlying question always is, who has title to the land,

what is the extent of those rights, what were the rights that were

given up, what were the rights that it retained. Those issues are

determined under state law, and under the terms of the deeds from

the railroads, and they are very fact-specific. Whether those are resolved in the Court of Claims, or in state courts, or otherwise, these

issues are always going to end up to some extent—they’re always

going to end up in the court.

Mr. RYUN. Mr. Norton, may I interrupt just for a minute. I’m

going to have to run for a vote. But I see the process as being best

handled at a state level, where they have the opportunity to condemn that land, and to go through the process, if you will, compensation; whereas in this process it’s very expensive, and it really

does lean toward those of you that are here as opposed to the small

landowner, that’s back some place else in the United States.

Mr. FALEOMAVAEGA. If the gentleman from Kansas would yield,

because you have a vote, and I know this is a critical panel that

you would like to raise some additional questions, I’d be more than
59

happy to maybe give a 10-minute recess for you to return, and may

want to raise additional questions, if that’s all right with the gentleman.

Can the members of our panel have just a little patience, and the

gentleman will come back, and we will continue with the questioning. Thank you.

The Committee will be recessed for about 10 minutes.

[Recess.]

Mr. FALEOMAVAEGA. We’d like to regroup, please, panel.

I am not sure if Mr. Ryun will be coming back, but certainly

every opportunity will be given to him to raise additional questions.

In fact, we’ll even allow the gentleman to submit more questions

for the record if he wishes, and then to the members of the panel.

I want to thank the members of the panel for their testimonies.

This is always what makes democracy quite interesting, that you

have an entirely different perspective from the other panel which

gave their statements earlier.

I do remember Mr. Richard Allen, with utmost respect for your

tremendous service to our country at the time when you served as

national security advisor to President Reagan, and I want to offer

my personal welcome to you, sir, and a job well done, if that’s a

better way of saying it.

Mr. Newman, on the issue of our whole—I kept asking these

same questions, but I don’t know, maybe I’m going over my head

in trying to focus a little more specifically on our general overall

national policy. It’s not about land rights, it’s not about the taking

or easements; I’m talking about the situation with our whole railroad company or industry, if you want to put it those terms.

You indicated earlier that we are getting a little better than it

was before.

Mr. NEWMAN. That is correct.

Mr. FALEOMAVAEGA. Do you think that there is a future for the

railroad industry to be expanding even more?

Mr. NEWMAN. Let me kind of reiterate some of the things I

touched on in my testimony.

The railroad industry is going to continue to grow. The railroad

industry, I believe—I feel very confident—is one that will get a bigger piece of the freight traffic that is out there. We are doing better. There are external forces at work that help us. However, as I

mentioned, we will do more with less, as everybody in this world

seeks to be more productive.

So, if your question is, will there be new lines of railroad, not

likely. As I mentioned with the short-line program, one of our primary goals is the preservation of the rail network, because after

the railroad is gone, in our view, it will not come back unless we

preserve the corridors. That’s why our preference, when we have a

line that does not make economic sense, is to sell it first to a shortline operator, thereby perpetuating rail service. And the fallback to

that is, if that doesn’t work because the economics aren’t there,

then we look to something like rails-to-trails.

Mr. FALEOMAVAEGA. See we’ve got a problem here. We have a national policy with reference of maintaining the basic structure or

the integrity of our transportation system, which the railway sys-
60

tem is one of those very important aspects of our whole transportation system.

You’re talking about an issue—what is it annually in terms of

the gross and passenger, industry, and cargo commodities?

Mr. NEWMAN. The railroad industry is roughly about a $35 billion revenue industry; this is the freight industry. In addition to

that, as you know, you have Amtrak, who’s revenues are slightly

over a billion dollars. You have a great number of commuter agencies across the country, many of which—particularly I’m familiar

with Conrail—most of which operate over our freight lines. We

share those lines. And indeed, with respect to Amtrak, we share

the Northeast Corridor with them.

The railroad industry carries 60 percent of our nation’s coal, carries about 70 percent of our finished motor vehicles, carries grain,

carries chemicals. As I mentioned, we are increasingly carrying all

kinds of merchandise in our internodal trains. Our internodal

trains are growing phenomenally. Our industry as far as I’m concerned is only going upward.

Mr. FALEOMAVAEGA. And Mr. Norton, you’ve indicated that you

do have some very serious problems with the provision of Mr.

Ryun’s bill. His suggestion is that we ought to just let the state

government take care of this, in terms of the reversion of the status of the land, if it’s abandoned by the railroads.

You’re talking about how much—I notice Kansas, I think, has

about, what, nine trails, rail trail systems in Kansas currently?

Mr. NORTON. I think that’s right currently in Kansas. There is

actually an exhibit at the back of—it’s actually three, three existing; it’s attached to our testimony—three open trails in Kansas at

least, as I look at those numbers.

Mr. FALEOMAVAEGA. I noticed that Mr. Allen makes a very interesting comment about the fact that our railway system has very

far-reaching the national security considerations. And I’d like, Mr.

Allen, if you can elaborate a little further, how does a railroad have

to do with our national security interest?

Mr. ALLEN. Well, Mr. Chairman, if you could imagine a period

of prolonged crisis, and the need to mobilize resources, you would

quickly I think understand the requirement to keep open the option; to have always the option to revert to putting rails back down.

I speak from the limited experience that I have in Colorado. The

railroad wants to take up those rails, use them someplace else;

they’re heavy duty rails with a special high quality, and take up

the ties, and so on and so forth. But there may be a time when it

has to go back in. For example, the misfortunate—or the unfortunate fact that there were a building or something in existence, the

railroad would have a hard time—and I think you pointed out earlier—going around those square corners. Put back in a railroad in

time of great national need, or prolong national crisis would be a

very important consideration. And it’s my understanding that there

had been certain reconversions where economic feasibility indicated

that that should be done. But for long-term national security considerations it seems to me to be vital to keep open these main rail

corridors, and to have the option to have them converted once

again to their original use. That’s why I believe that nothing

should be done to disturb the existing system.
61

Mr. FALEOMAVAEGA. Thank you, my time is up.

The gentleman from Kansas.

Mr. RYUN. Yes. I’d like to direct that question, if I may, a little

bit to Nels Ackerson, with regard to national security. If you would

comment on that. I know you mentioned earlier you would like to

do that.

Would you please do so at this point?

Your microphone is not on.

Mr. FALEOMAVAEGA. Could you turn your mike on, Mr. Ackerson?

Mr. ACKERSON. My reaction will be one of common sense, and not

born of the national security experience of Mr. Allen, so I don’t

question at all the legitimacy of his concern. What I hear though,

is that there is a national security reason to preserve the existing

corridors, and if so, that should be addressed it seems to me in the

present law as well as any future law. And it seems to me it could

be addressed rather effectively by simply permitting the Department of Defense to determine, during the abandonment process,

whether this is a corridor that should be preserved for national security purposes, and if so, then the traditional condemnation process in eminent domain proceedings could take effect, and that corridor could be preserved during the period in which that condemnation action goes forward.

It seems to me that is a matter, to the extent there’s a national

security interest, that is right now, because right now the United

States has no other way to preserve that corridor, unless by chance

a railroad and a trails group happen to agree to.

Mr. NEWMAN. Mr. Chairman, may I address this question, because I know a little bit about it, coming from the rail side.

Mr. FALEOMAVAEGA. The gentleman from Kansas, it’s his time.

Mr. RYUN. Yes, you may.

Mr. NEWMAN. Mr. Ackerson is exactly right. The people don’t realize that the Department of Defense is a major railroad shipper,

and when the railroad proposes to abandon the line as one of the

shippers, they are served with notice of the proposed abandonment,

and the Department of Defense has, and I assume, will continue

to be a purchaser of these lines. They have from time to time

stepped in and bought lines. And in fact they, in several cases, operate their own service to reach the outlying rail network.

Mr. ACKERSON. And that could remain the same I think in the

continuing law if your bill were to be passed, Mr. Ryun.

Mr. RYUN. And that’s correct. That’s how I see my bill at this

point in time, that it really doesn’t threaten that particular issue.

Mr. ALLEN. May I make a comment, sir, although it’s on your

time?

Mr. RYUN. Mr. Chairman?

Mr. FALEOMAVAEGA. The gentleman from Kansas, it’s his time,

but if you would allow Mr. Allen to respond to your concern.

Mr. RYUN. I’m finished at this point. That’s fine. Thank you.

Mr. FALEOMAVAEGA. Do you have any further questions, sir?

[No response.]

Mr. FALEOMAVAEGA. OK, Ms. Woolsey.

Ms. WOOLSEY. I will let the gentleman at the end of the table

answer on some of my time, Mr. Chairman.

Mr. FALEOMAVAEGA. Mr. Allen, go ahead.
62

Mr. ALLEN. Thank you. I was just going to point out very briefly

that national security is a much broader consideration than simply

the Department of Defense. And my second observation, meant

somewhat lightly, is that the last place I would go for a quick resolution of a problem or a study, is the Department of Defense, and

ask them to determine anything with clarity recision within a reasonable frame of time. And I think the Congress itself has its own

experience in that regard.

So, the basic point I’d like to make, however, is national security

is not limited to what the Department of Defense has to say about

anything; it’s a much broader concept, and especially as we learn

this fact of life in the post-cold war world.

Mr. FALEOMAVAEGA. Will the gentlelady yield?

Ms. WOOLSEY. Yes, I will yield.

Mr. FALEOMAVAEGA. Mr. Norton, please enlighten us, what can

we do to help these landowners that are telling us their sense of

grievance? Now, you’ve indicated they do have access to the Federal courts, costing them hundreds of thousands of dollars.

Is there another option that is available for these landowners?

Mr. NORTON. Well, thank you for asking that question. Actually

Congressman Ryun and I were in the middle of a conversation

about that when you had to recess. Let me try to pick up that answer.

First of all, I would say that we all should work together to try

to find the right forums and the expeditious processes by which

property—legitimate property rights can be adjudicated. This has

to be an adjudicatory process; it is the essential nature of these

issues. I do not think you can escape that. It will have to be in

state court—in Federal court or the Federal courts of claims. But

the process will have to be adjudicatory.

I think you’ve heard very compelling testimony here today that

the bill, as introduced, for a number of reasons would destroy any

incentive on the part of the railroads. We’ve heard it from the railroad industry to preserve unused rail corridors. I think that we

need an approach, with respect to these property rights, that employs the scalpel rather than the meat cleaver on these issues. And

we would be very anxious to work with the Committee in order to

do that.

From my own experience litigating cases in both state and Federal courts, local courts, state courts, Federal courts, I don’t believe

that state courts are necessarily even the best or the most expeditious place in which to resolve these issues. I know that the Court

of Claims does have procedures now that allow for the Court of

Claims to act as essentially circuit writers. A great deal of this can

be done in an expeditious way, and maybe it would be better.

I would conclude by saying that, I think that this is an issue on

which this Committee should get some really good legal advice. I

think there’s been some bad legal advice about these legal issues,

and the constitutional issues, and the court decisions bandied

about today. I think you should get some good independent advice

on this, and develop a consistent position with respect to property

rights.

Recently, the House of Representatives passed H.R. 1534, which

allows, Congressman Ryun, private landowners and developers to
63

bypass state and local court systems, and go directly to Federal

court, even bypassing state administrative processes. And I think

what we need to do is really look—this issue is coming up over and

over again, and we need to look at a way that these legitimate

property rights can be expeditiously adjudicated.

Mr. HANSEN. [presiding] Thank you. Any other questions for this

panel?

Mr. RYUN. Just a comment. And that is, the bill you mentioned,

H.R. 1534, while it has passed the House, has not been signed into

law yet, so it is still to be——

Mr. HANSEN. We’ll excuse this panel, and thank you so very

much. Appreciate the patience of all you folks today. All heck could

break loose on the floor any minute on the grazing bill, and we’ve

got to move right along here, if we can.

Our fifth panel is Steve Kinsey, Robert Berner, and Sharon

Doughty. If those folks would like to come up, we’d appreciate it.

Well, thank you very much for being here; we appreciate your

presence. I would appreciate if you stay within your time, not that

your testimony isn’t extremely important, but we’re going to have

bells going off, and we’re going to sit here to 8 if we don’t get some

of things going.

So, Mr. Kinsey, we’ll start with you, sir.

STATEMENT OF STEVE KINSEY, SUPERVISOR, FOURTH

DISTRICT, COUNTY OF MARIN

Mr. KINSEY. Thank you very much. My name is Steven Kinsey,

and I do appreciate your durability today, as well as this opportunity to address you on behalf of the Marin County Board of Supervisor, and as a representative voice for the quarter million residents of Marin County.

The district that I serve is a very vast part of Marin County,

comprising almost two-thirds of its land mass, and virtually all of

it’s agricultural lands; as well as the great majority of its Federal

parks and its recreation areas. It’s a privilege to serve the spectacular and diverse community of Marin.

Mr. Chairman, the Marin County Board of Supervisors unanimously supports H.R. 1995, because this legislation sets up a voluntary cost-effective collaboration between Federal and local governments that can help protect our region’s agricultural heritage

and, one of our nation’s most popular national parks at the same

time. I’m pleased to report as well that my colleagues on the

Sonoma County Board of Supervisors, our neighbors immediately

to the north, equally share our commitment to passage of this bill.

Additionally, throughout each of our counties there is an overwhelming majority of residents who strongly favor the protections

that will be provided by this legislation.

H.R. 1995 offers real relief for ranching families committed to

sustaining their way of life. Farming has never been an easy job.

Farming on the urban edge is even more challenging, due to the

relentless pressure development exerts upon the fertile soil.

Like so many ranchers across America our region’s farming families are often land rich and cash strapped. This legislation can deliver the vital funds many ranchers need to finance repairs and improvements in their operations, to comply with emerging regulatory
64

requirements, or to diversify into entirely new agricultural venues.

In return, the environmental character and the productive value of

the land can be retained in perpetuity.

I’m not sitting here today asking the Federal Government to unilaterally undertake the salvation of our region’s agriculture. Marin

has a 25-year history, a very proud history, of working to effectively preserve our historic agricultural lands. We’ve utilized many

tools, including low density zoning, acquisition of conservation

easements, and diversification of the industry beyond our historic

beef and dairy markets, toward reaching this goal of protecting our

agriculture. Today Marin ranches in addition to beef, sheep, and

dairy, also produce high quality vegetables, grapes, berries, and

even an emerging market in olive oil.

In spite of Marin’s historic efforts to protect our agriculture, H.R.

1995 is urgently needed to assist ranching families who choose to

continue their way of life, and pass it on to generations to come.

Without this program those cash-strapped families will have no

other choice except to sell out or seek to develop their property. In

fact, for the first time since creating our coastal ag zoning, an application to develop a sprawling 20-unit subdivision on a 1,200 acre

parcel within the proposed Protection Act boundary, has been submitted, and it’s expected to be deemed complete by our County’s

staff tomorrow on October 31st.

The proposal reflects the maximum density permitted under the

Marin 60-acre zoning. Similar proposals are sure to follow this

precedent-setting effort, and as each one is submitted, the pressure

for adjacent property owners to follow down that path will surely

increase. Passage of H.R. 1995 will certainly stall that trend.

It is not Marin’s intention that property owners be denied the

ability to propose such developments if they desire to do so. However, H.R. 1995 offers a voluntary alternative to development. Individual ranchers can decide for themselves whether or not to participate in the program. This is far different than the circumstances

an earlier generation faced when the Park Service was acquiring

lands in the national seashore.

There are other provisions of H.R. 1995 that I’d like to bring to

your attention today as well. H.R. 1995 requires the local community to continue to invest in protecting our agriculture. Fifty percent of the funding for easement purchases must come from nonFederal sources. Purchase of conservation easements instead of the

costlier fee purchase in most instances, will allow more agricultural

lands to be protected for less Federal dollars. The land will also remain on local property tax rolls, particularly important to me as a

supervisor, and particularly important to the schools in our country, as well as to the other important service districts that receive

property tax funding.

In conclusion, I wish to reiterate my deep gratitude for the opportunity you’ve made for us to speak to you on this matter today.

In this year of shrinking government and a renewed commitment

to private property rights, H.R. 1995 provides your Committee with

an innovative opportunity to protect the family farm and our national treasures, without breaking the bank or infringing on an individual’s freedom to choose. I urge you to breathe life into this important legislation, adding your own contributions to its innovative
65

structure so that it can serve not only the coast of California, our

remarkable Marin County and Sonoma County; but also serve as

a national model for a way to protect agriculture on the urban

edge. Thank you for your time.

[The prepared statement of Mr. Kinsey may be found at end of

hearing.]

Mr. HANSEN. Thank you very much.

Mr. Berner.

STATEMENT OF ROBERT BERNER, EXECUTIVE DIRECTOR,

MARIN AGRICULTURAL LAND TRUST

Mr. BERNER. Thank you, Mr. Chairman and Members of the

Committee.

My name is Robert Berner. I am executive director of Marin Agricultural Land Trust, a non-profit organization, whose mission is

to help preserve productive farmland in Marin County. I speak for

MALT and not for any other organizations or individuals.

Farmland makes Marin County one of the most unique and

beautiful places in the United States. Agriculture preserved what

is now Point Reyes National Seashore from second home, suburban

and commercial development, until it was set aside as a national

park. Agriculture today serves as the gateway to Point Reyes National Seashore, and is an integral part of the values, quality and

character that makes Point Reyes one of the most visited national

parks in the country. These are not hobby farms, but economically

viable businesses, many of which have been in the same families

for three and four generations.

But farming on the edge of the country’s fourth largest metropolitan area brings development pressures and rising land prices

that threaten the future of agriculture. When Point Reyes National

Seashore was created in 1962, there were 3 million people in the

northern California Bay area; today there are over 6 million.

The most pernicious threats to agriculture are insidious and

largely invisible. County land use policies protect against sprawl

development with low density zoning, typically one unit for every

60 acres. The State Williamson Act allows agricultural landowners

to be taxed based upon our agricultural land values rather than

market values. But zoning and the Williamson Act do not protect

against high agricultural land values driven by the proximity of

our agricultural lands to the metropolitan bay area, or rural sprawl

characterized by low density residential development. The average

agricultural property in the county is 600 acres, making it vulnerable under local zoning to subdivision into 10 residential parcels.

For 17 years Marin Agricultural Land Trust has offered agricultural families faced with the need to capitalize some of the value

of their land a conservation alternative through the purchase of

conservation easements. We have acquired easements on 38 farms

and ranches totaling 25,500 acres. The purchase of conservation

easements has been critical to the survival of agricultural in Marin.

Every rancher knows someone who would have been forced to sell

their land, or unable to buy land, were it not for the purchase of

a conservation easement.

Because Point Reyes National Seashore is a national asset and

its protection and preservation a Federal responsibility, we think
66

it is reasonable and justifiable for the Federal Government to share

in the cost of protecting the farmland which is so important to the

character, quality, and environment of this enormously popular

park. We do not think it fair to place the economic burden of protecting these lands solely on the landowners through further

downzoning.

We offer to work in partnership with the Federal Government to

permanently preserve the farmlands within the boundaries of H.R.

1995 through the acquisition of conservation easement in voluntary, compensatory transactions with landowners. The land

would remain privately owned, privately managed, and on the tax

rolls. MALT will help match Federal funds, and will undertake

both acquisition and monitoring responsibilities entirely at our own

expense, at no cost to the Federal Government.

I want to emphasize, Mr. Chairman, that MALT does not support

legislation that makes private farmland park land; subjects landowners to Federal regulation; diminishes land values; or is not voluntary and compensatory. We do not believe that H.R. 1995 does

any of those things. H.R. 1995 would help maintain privately

owned agricultural land in private ownership and protect it from

non-agricultural development, but protected from non-agricultural

development by conservation easements purchased at market value

in voluntary transactions with landowners, thereby preserving this

area adjacent to Point Reyes National Seashore in the private agricultural land uses which have historically, and continue to be, compatible with and complimentary to the park. Thank you very much.

[The prepared statement of Mr. Berner may be found at end of

hearing.]

Mr. HANSEN. Thank you.

Ms. Doughty.

STATEMENT OF SHARON DOUGHTY, DAIRY RANCHER

Ms. DOUGHTY. Good afternoon. My name is Sharon Mendoza

Doughty. I am a lifetime registered Republican and a third generation dairyman, who was raised on a Historic B Ranch, which is

now a part of the Point Reyes National Seashore. My family owned

four ranches, totaling 5,000 acres, which became part of the Point

Reyes National Seashore when it was authorized in 1962. My father and brother still operate a dairy on this land, under the reservation of use and occupancy with the National Park Service.

After college I married a local dairyman, and in 1973 moved to a

773-acre dairy on the East Side of Tomales Bay, across from the

Point Reyes National Seashore. This land is within the proposed

area to be included in the Point Reyes National Seashore Farmland

Protection Act. Since being widowed in 1984, I have continued to

operate the dairy. We milk 300 cows twice daily, produce 2,500 gallons of milk. That along with 50 other dairies in Marin County provide 25 percent of the milk for the San Francisco metropolitan bay

area.

My family and I are committed to agriculture. It is hard work,

but it is what we know and love. Although it certainly was not our

purpose, for the past 30 years agriculture has also preserved the

east shore of Tomales Bay from development, that would otherwise
67

destroy the extraordinary pristine quality of the bay, and the integrity and character of the Point Reyes National Seashore.

As an active participant in the agricultural community, I am a

20 plus year member of the Marin County Farm Bureau, as well

as Western United Dairymen, as well as the local Chamber of Commerce. In 1994 Governor Pete Wilson appointed me to the California Coastal Commission, where I served for 2 years. In 1986 the

Marin County Board of Supervisors appointed me to the 15-member board of the Marin County Agricultural Land Trust, where I

served for 9 years. I was chairman of that board for 2 years, as

well as chairman of the Agricultural Committee for several years.

MALT’s nationally recognized program is highly respected by farmer and non-farmer alike. It has successfully purchased easements

on 25,504 acres of the 150,000 acres critical to Marin’s ag industry.

In the past to fund MALT easement program we have used

money from a local foundation from the California Coastal Conservancy, as well as $15 million from State Proposition 70. There is

still a long list of property owners who are interested in selling

their easements on their land. We have twice tried within the

county, and participated in another state proposition to obtain

more funds, but have failed narrowing the two-thirds vote required.

Because of the popularity of the Point Reyes National Seashore

with the people throughout the United States the concept was developed that this open space along Tomales Bay deserves national

support.

I was not especially enthusiastic about this idea in the beginning. We certainly do not need more land and public ownership in

Marin County, and I had many questions concerning accessibility,

funding, and administration. In the past 3 years Lynn Woolsey has

closely listened to all the property owners and sincerely tried to address their concerns, while protecting the investment for the people

of the entire United States. In its form today I am now in full support of H.R. 1995. No new authority to regulate private land is

granted in this legislation. If and when the Federal Government

purchases the conservation easement, the conservation easement

protects the landowner. The conservation easements acquired as a

result of this Act will expressly permit hunting, predator control,

use of lawful pesticides, just as MALT easements do. MALT is

specified in the bill to manage and monitor these easements.

My 773-acre property is very desirable for development. We are

reminded of how desirable this property is every weekend by the

guests of our bed and breakfast. However, I prefer to have the option to sell a conservation easement on this productive land, for me

and my heirs to continue our stewardship of this land and agriculture. We have planted 5 acres of vineyards in an effort to diversify for viability. The money we could receive from this act would

help us to buy more land for vineyards to build a winery, or creamery for a cheese operation without incurring heavy debt. We have

four adult children who are very interested in agricultural operators. Upon my death, these funds could be used to help supplement

my life insurance and pay my heirs’ inheritance taxes, so my children would not be forced to sell the land.

Because of the positive experience that my family has had with

the tenants of the National Park Service, I would willingly enter
68

into an agreement to sell my conservation easements to the National Park Service. For over 25 years the tenants of the National

Park Service within the Point Reyes National Seashore have enjoyed a positive relationship. These tenants have together signed a

petition, which I’m submitting as part of my testimony today to

substantiate that relationship.

It reads, ‘‘We the undersigned ranchers and residents of the

Point Reyes National Seashore wish to dispel certain misinformation about our relationship with the seashore. In particular, we

would like it be publicly known that our relationship with the National Park Service is generally harmonious.’’ And it is signed by

the current tenants of the seashore.

I want to thank you very much for the opportunity to testify here

today in support of H.R. 1995.

[The prepared statement of Ms. Doughty may be found at end of

hearing.]

Mr. HANSEN. Thank you very much.

Questions for the panel?

Mr. Faleomavaega.

Mr. FALEOMAVAEGA. I would defer to the gentlelady from California.

Ms. WOOLSEY. Thank you very much.

Thank you very much, that was excellent testimony. Thank you

for being so patient and waiting so long.

First, with Bob Berner. Can you tell me what the confusion is

among those who are in opposition to this bill, regarding the

Williamson Act? They seem to think that the Williamson Act will

do the same thing as the conservation easements. I think they’re

missing a point.

Could you put that in words for us?

Mr. BERNER. Well, I can’t speak for other people, but the

Williamson Act is a short-term provision, an agreement between

the landowner and the county, whereby the landowner is taxed

based upon agricultural use rather than market value, in exchange

for commitment to maintain the property and agriculture for a 9-

to 10-year period.

Ms. WOOLSEY. But it does not add any new income to the landowner.

Mr. BERNER. That’s correct. It does not address the problem I described of high land values and the difficulties of farming families

when they have to treat the land as a financial asset, and not just

as a natural resource. Zoning and the Williamson Act, public policy

in general simply is not a tool, which is useful in a region like ours

to address this economic problem.

Ms. WOOLSEY. And under H.R. 1995 wouldn’t the land with agricultural conservation easements be taxed at ag value, not at development value? So they would still have the benefit——

Mr. BERNER. When a landowner sells the conservation easement,

if that property is not already in the Williamson Act the landowner

would, I think, invariably enter into the Williamson Act, a contract

for the county, so it would be taxed based upon its agricultural use.

Ms. WOOLSEY. Thank you.

Sharon, you’ve come from a large ranching family, and I’d like,

if you would, to go a little bit beyond your own concerns.
69

Do the other members of your family have concerns about this

bill, and have we through our changes answered most or all of

those concerns?

Ms. DOUGHTY. Yes. Besides my piece of property, my family also

owns more property within this zone. And again, we are conservative farmers. There were definitely—my Republican father was

very concerned about what this would mean to that property and

to our family, and he has worked very closely—all of us have

worked very closely in expressing our concerns, and he has—in the

last version of the bill was very delighted with the changes that

were made; felt that we could definitely live viably within what

was being presented. And he said to me, that he was quite impressed with you, Lynn, because you had listened to us, and your

tenaciousness in meeting with all of us, and finding out what we

all needed and felt—you’ve done a wonderful job of representing us.

Ms. WOOLSEY. I guess I was the straight man for that one, Mr.

Chairman. I wasn’t asking for a compliment. I really wanted to

make sure that I have answered a good number of the concerns of

your family as well as the others——

Ms. DOUGHTY. Well, we certainly feel that you have been very

tenacious——

Ms. WOOLSEY. Well, thank you.

Ms. DOUGHTY. [continuing] in making sure that our concerns

were met, and that farming would in fact survive. That was the

point.

Ms. WOOLSEY. Thank you.

Supervisor Kinsey, let’s talk about the 2.5 million visitors that

visit the Point Reyes National Seashore every year. It’s one of the

most visited national parks in the nation, and that keeps getting

lost I think in what we’re talking about here.

Those visitors travel through Marin County. What does that

bring to your county?

Mr. KINSEY. Well, I think, Congresswoman, really it brings a tremendous amount to our county, not only the cultural exchange that

obviously happens when you have visitors from around the world,

but certainly a tremendous boost to our economy. And in fact, there

certainly are 2.5 million visitors who come to the National Seashore each year. They are just a part of the over 6.5 million visitors

who come to all of Marin County on an annual basis to enjoy, not

just the seashore, but the Golden Gate national recreational areas

as well.

Within the seashore itself I think Superintendent Neubacher

mentioned earlier today that over $100 million a year is brought

to the local economy, and that contribution has a tremendous benefit. It serves not only to increase the sales taxes and the overnight

occupancy taxes that help to fund a number of our county services,

including the public safety services that many rural communities

cannot afford; but it provides the opportunity for many of our residents to work locally, which has enormous benefits to strengthen

the family values, and to reduce the environmental impacts that

long distance commuting provide to so many urban areas.

So I would say that there is a significant environmental as well

as cultural and economic benefit to having the park, and we extend

ourselves generously I hope to those visitors because we want to
70

provide a real sense of hospitality to people that come to Marin

County.

Ms. WOOLSEY. Thank you, I’ve used my time.

Mr. HANSEN. Gentleman from California.

Mr. POMBO. Thank you, Mr. Chairman.

Mr. Kinsey as one of those people who has boosted the economy

in Marin County on a number of occasions on my visits to Point

Reyes. I can understand why the people are interested in protecting that area, and it is a beautiful area. And there’s no question

about that.

But what do you think this legislation—what power does this

legislation give you, or what authority does it take to protect this

area that you don’t believe you currently have as the lead authority

in land use planning in Marin County?

Mr. KINSEY. Mr. Pombo, I believe that this legislation is primarily developing an economic partnership between the Federal

Government and the local community to fulfill our land use expectations and aspirations. It’s a voluntary bill, and for those landowners who don’t choose to exercise the options available through

this legislation, we have—if not a welcome door, certainly an open

door in Marin County that would allow individuals to apply.

As I mentioned in my testimony, we currently have a proposal

on a 1,200-acre ranch for a subdivision of that ranch, the first of

its kind within the coastal ag zoning. I would say that this is not

about fulfilling our land use expectations in ways that we cannot

as Marin County; this is about strengthening the partnership between the Federal Government and the long-term efforts of Marin

County to sustain our agricultural heritage.

Mr. POMBO. So, in your mind it gives you no greater land use authority than what you currently have, but it gets the money; it

brings money to the table.

Mr. KINSEY. It does not in any way affect the land use authority

that the county currently has; that’s correct.

Mr. POMBO. Have you supported in the past the development? I

think you said that your county was on 60 acres development, was

the minimum. Have you supported those developments in the past?

Mr. KINSEY. As I mentioned, Mr. Pombo, this is the first application within the coastal ag zoning for a subdivision of a ranch. What

I have done is to make it clear to our staff that we need to treat

this application with all fairness, and as such, we are determining

that that application is complete as of this week, and we will begin

the environmental review process and the public hearings, and consideration of the project on its merits, as it applies to our current

zoning.

Our zoning——

Mr. POMBO. Is this the first time that there has been an application to subdivide into 60-acre blocks within this area?

Mr. KINSEY. Within the coastal ag zoning this is—the areas within the Farmland Protection Act boundaries; this is the first subdivision that has been proposed.

What I would say is that, the zoning that we have is very strict.

It’s very clear that our intention is to support agriculture, and that

agriculture is the primary intention that we choose to accomplish.

So for a subdivision to be deemed appropriate it needs to show that
71

it’s a secondary use to the primary use of agriculture. So there’s no

question—and I don’t want to mislead anyone here to think that

we have lax zoning that would allow for agriculture to slip away

from us. But this legislation, should it be successful, will strengthen our hand, and more importantly, will provide individuals who

choose to participate with the opportunity to stay on their lands,

as opposed to feel compelled for personal reasons, financial hardship, to either sell the lands or attempt to subdivide the land in

order to continue their lifestyle.

Mr. POMBO. I think you’ve established that the greatest need in

this area is dollars, in purchasing the conservation easement on

those lands; that it’s not a lack of land use ability that the county

has, but it’s a lack of dollars, and that that is the primary motivation with legislation like this.

Is that correct or is that incorrect? Because if there’s no land use

authority included in this bill, if there’s no restrictions that are included in this bill, if there’s no way that we are in any way taking

away any of your land use authority, or any of the property rights

of the people involved—the property owners involved, then the only

thing left in that scenario is the dollars.

Mr. KINSEY. I think that, while I would agree that the land use

authority is maintained with Marin County, the value of this bill

goes far beyond the economic benefit alone.

Mr. POMBO. Mr. Berner, if you want to respond to that. I’m very

curious because I’m not—I’m not totally opposed to this idea because we have a program very similar to it in my own county. But

the argument that is continually made is that, it’s no new land use

authority, and there’s nothing there. And if that’s the case, why do

you need a Federal bill?

If it’s just the dollars, then let’s just say, OK, it’s just the dollars,

let’s work on that. But if it’s not that, tell me what it is.

Mr. BERNER. Well, I think the bill as it is written is very clear

about that. All it does is authorize Federal funds to be used to purchase conservation easements in order to preserve the land for agriculture. As I tried to indicate my testimony——

Mr. POMBO. It’s several pages, and I’ve reviewed the bill, and it’s

more than just an authorization. I’ve done authorization bills before, and you don’t need several pages to just do an authorization

bill.

Mr. BERNER. The problem in Marin County—and this is a problem that’s shared in other agricultural communities adjacent to

urban areas—is that land prices have risen far beyond any values

based upon agricultural land. And while that in some senses is a

windfall to the landowner, it also presents them with a host of

problems. It makes it difficult to pass land from one generation to

the next because of high estate taxes. It makes it difficult for a

young farmer or rancher to buy land because it has to be paid for

at market value by——

Mr. POMBO. Coming from a seventh generation farm family——

Mr. BERNER. OK. You know all this.

Mr. POMBO. [continuing] I’m very familiar with that.

Mr. BERNER. So, the solution that Marin county has tried to

apply to this problem for the last 17 years, is to support a program

which offers landowners an option. Instead of having to sell the
72

land, or consider dividing it, or developing it, they instead can sell

a conservation easement. And in that way realize some of the capital value of the land without having to change what they’re doing.

We have spent some $17 million in the county over the last 15

years doing that. We will continue doing that, but the magnitude

of the need is greater than the local funding is going to be able to

meet. And because Point Reyes National Seashore is so importantly

related to at least some of these agricultural lands, we are urging

Congress to consider the idea of sharing with us the cost of offering

this conservation option to agricultural landowners.

Mr. POMBO. Let me ask you a question—Do you have any

questions——

Mr. GILCHREST. Um——

Mr. POMBO. Very quickly I’ll ask one more question, then I’ll

yield to him.

Mr. HANSEN. Well, I thought he could yield to you if he didn’t

have any questions.

Mr. GILCHREST. I have one.

Mr. HANSEN. Well, why don’t you take the floor——

Mr. GILCHREST. I’ll take my time and——

Mr. HANSEN. [continuing] yield to Mr. Pombo, and then come

back to your question.

Mr. GILCHREST. [continuing] yield—I’ll yield to the gentleman

from California, with a quick question.

Mr. HANSEN. That way, we’ll use the time wisely.

Mr. POMBO. Thanks, Wayne.

Just one final question. If we came up with legislation that all

it was was an authorization for a grant that would go into an organization—not necessarily yours, but an organization like yours—to

purchase conservation easement for the protection of agriculture in

this area, and gave no other authority whatsoever—that’s all it

did—would that accomplish what you want?

Mr. BERNER. Yes, sir. And I think that’s all we think this bill

does.

Mr. POMBO. No, there are a lot of concerns that this bill could

go——

Mr. BERNER. I understand, but that is——

Mr. POMBO. [continunig] beyond that. That was the question.

Thank the gentleman for yielding.

Mr. HANSEN. Gentleman from Maryland.

Mr. GILCHREST. I guess to some extent that was my question,

and I’m from Maryland, and we have conservation easement program where we simply buy the development rights from a farmer,

and then that farm stays in a permanent easement from now until

the end of time. And it’s an excellent program, except there’s never

quite enough money to do that. And there’s more farmers that

want to do it than there is a money available for that, and so we

mixed the little Federal fund about year—I guess it’s about a year

ago. It’s $35 million nationwide to be distributed to those states

that have those kinds of programs.

And I guess I’d like maybe just a quick answer from especially

the dairy rancher. Ma’am. I’m not sure where you are on this

panel. But I guess if we could—whether it’s Lynn’s bill or somebody

else’s bill, the intent here is to help state, Federal, local govern-
73

ment, private landowners to preserve agricultural land in the

United States. It’s my understanding we lose about a million acres

a year. In my small state of Maryland we lose 25,000 acres a year,

and that’s a lot for us.

So we’re attempting to give money in cooperation with the state

programs, to preserve agriculture, not to create natural parks or

BLM land—and there’s nothing wrong with those things—but to

preserve agriculture.

Now, is there anybody on the panel that has some sense that this

bill would preserve agriculture for a short period of time, and the

likelihood that it would turn into a national park later because of

this legislation?

Ms. DOUGHTY. No.

Mr. BERNER. No, sir.

Mr. KINSEY. No.

Mr. GILCHREST. I guess we should go vote, Mr. Chairman.

Mr. HANSEN. OK. Thank you very much. Just let me ask one

other quicky here.

You’ve all talked about conservation easements. Do any of you

envision or support park service acquisition of private property?

Keep in mind that takes it off the tax rolls. Do any of you support

that?

Mr. KINSEY. Well, I consider this bill to be primarily an easement acquisition program. I think that with willing landowner—a

willing seller and a willing buyer on the part of the Federal Government, that on a merit basis you could consider certain plans.

But I would strongly discourage that because of my interest in

maintaining both the tax rolls and the active agriculture in our

county.

Mr. HANSEN. Well, thank you very much. We appreciate the panel’s comments.

We’ll turn to our last panel; Martin and Sally Pozzi, Mary

Coletti, Donna Furlong, and Judy Borello, please come forward,

please.

Now, if you folks—I could ask you to wait just a minute, I’d really appreciate. We’re going to have to go vote. And as soon as Lynn

Woolsey gets back, the gentleman from the American Samoa will

bang the gavel, and we’re start again.

[Recess.]

Mr. FALEOMAVAEGA. The Committee will reconvene again. We’d

like to call on our next panel, our final panel here.

Mr. Martin and Sally Pozzi; Ms. Mary Coletti; Ms. Donna Furlong; and Ms. Judy Borello. We would like to welcome you to the

Committee, and would like to hear your testimony right now.

Mr. and Mrs. Pozzi.

STATEMENT OF MARTIN AND SALLY POZZI, RANCHERS

Mr. POZZI. Thank you. My name is Martin Pozzi. I’m a fifth generation rancher in the Sonoma Marin area. I have come to testify

for this Committee, representing Cattlemen’s Association and as a

landowner. Ms. Woolsey, my Congresswoman, has introduced legislation which will make my ranch part of the Point Reyes National

Seashore. When I first learned of this legislation she had intro-
74

duced it in the 103d Congress, without even telling the landowners,

and was proposing to introduce it in the 104th.

As president of the Marin County Farm Bureau, by direction of

board, I indicated that the legislation was unacceptable. The major

concerns were, the park boundary, private property rights, and the

lack of funding. After our meeting, Lynn sent a letter to all the

landowners, stating that we had met, and that our concerns had

been taken care of. She has made changes, but the main concerns

still remain.

As Ms. Coletti will testify, we have letters from overwhelming

from overwhelming majority of landowners, indicating opposition to

their land being included it the Point Reyes National Seashore.

My family sold an agriculture conservation easement to the local

Marin Agricultural Land Trust organization, that this legislation

was modeled after. My eight siblings and father—all co-owners of

this ranch—committed to limiting the uses of our ranch to agriculture.

The proceeds from MALT were used to purchase a neighboring

ranch to expand our agricultural holdings, making room for my

brother and myself to have agricultural operations. We support the

use of voluntary conservation easements as a tool for the preservation of ag lands. Our ranch will never be developed. Now we will

be penalized by having it become park land, which will jeopardize

the one use we were trying to protect it for. This is instant creation

of park without compensation.

The creation of the Point Reyes National Seashore and acquisition of land from the owners has happened in my lifetime. I have

been aware of what has happened to most of the 27 original dairies

and numerous ranching operations which are all now park land.

Although the original legislation was supposed to protect landowners of more than 500 acres in active agriculture, not one is still

privately owned.

Correspondence from the author, her staff, and her experts claim

that the program is completely voluntary. The legislation states:

Section 3, ‘‘Addition of farmland protection areas to the Point

Reyes National Seashore. a) Addition Section 2 of the Act entitled,

an act to establish the Point Reyes National Seashore in the State

of California, and for other purposes, is amended by adding at the

end the following:

The Point Reyes National Seashore shall also include the farmland protection area.’’ This is not voluntary.

The agriculture experts have openly stated that this will not preserve agriculture, and the largest agricultural organizations in the

world are very distressed with a thinly veiled attempt to use agriculture for park expansion.

As Bob Vice, president of California Farm Bureau Federation

wrote to her, ‘‘You do not preserve farm and ranch land by making

it part of the park system.’’ Our agriculture operations are more

threatened by the expansion of park than by development.

I believe the public, your constituents, want to preserve agriculture land, and are reluctant to pay for expansion of park land.

The opportunity to do what Ms. Woolsey describes as voluntary use

of conservation easements to protect this agriculture land with

willing landowners, can and should be accomplished. Increase fund-
75

ing in the Department of Agriculture’s Conservation Easement Program so the use of voluntary easements can be accomplished. This

is the department of our government with expertise in agriculture,

and should be responsible for the easements, not the Department

of Interior, which specializes in parks.

I have worked my whole life on my family’s 1,200-acre ranch. We

had a dairy until the late 1970’s, and since have raise sheep and

beef cattle. I supported my youngest siblings with my ranch operation, enabling them to attend college. All nine of us graduated. My

wife and I have a 2-year old daughter, who spends time with us

on the ranch, and loves it as much as we do. We have a 4-month

old son, and we almost named him Park Pozzi, because this issue

has taken up so much of our lives. My children are the sixth generation in my family to be in agriculture. I want to ensure that my

children will be able to continue my agriculture heritage.

Ever since I was in third grade I knew I wanted to be a rancher.

I worked hard toward that end goal, getting my college degree in

animal science with a minor in business, and being active in agricultural organizations. Please do not include this land in a national

park. Thank you for allowing me to be here.

[The prepared statement of Mr. Pozzi may be found at end of

hearing.]

Mr. POMBO. [presiding] Thank you.

Ms. COLETTI. My turn?

Mr. POMBO. Yes.

STATEMENT OF MARY COLETTI, RANCHER

Ms. COLETTI. My name is Mary Coletti. My family has been

ranching our land for five generations. This same land is being left

in trust to our children, who plan to continue our ranching operation.

I have been to numerous meetings concerning this 38,000 acre

park expansion bill. I have witnessed overwhelming landowner opposition, and, very little landowner support (as the map illustrates). In addition, opposition to this park expansion bill has been

expressed by the farm groups and the taxpayers organizations.1

—————— Opposition has been expressed by farm groups. American Farm Bureau Federation, California Farm Bureau Federation, California Cattlemen’s Association, California Wool Growers Association (refer to letter dated 11/04/97), North Bay Wool

Growers, Sonoma County Farm Bureau, Fresno County Farm Bureau, Kings County

Farm Bureau. (refer to submitted letter)

Ms. Woolsey, you wrote December 5th; ‘‘As I made clear on our

November 26th meeting, I will not proceed in Washington without

the support of the landowners.’’ And on the 22nd of December; ‘‘Let

me assure you that Chairman Young gave me his word, and I have

given the landowners my word that this bill will only move forward

with local support.’’ (Letters subitted for the record)

Somehow our concerns have not been heard so I helped form

‘‘Citizens for Protecting Farmland.’’ Our purpose is to educate the

public and our legislators as to the facts of this bill, and to reiterate our concerns and opposition to this bill. A packet was prepared, and I would like to enter this into the record now.

We are a group of landowners within the proposed park boundary, representing over 22,000 acres opposed to the bill. 5,700 addi-
76

tional acres have serious concerns, but are leery of speaking up;

Plus we’ve just received two other letters in opposition to the bill.2

——————

Since the publication of the packet, we recieved additional letters. 23,679.18 acres

are opposed and 2,540.26 acres have major concerns for a total of 26,219.44. A letter

from Margaret Nobmann, Luke and Josh Stevens are included. The charts have

been updated and are included. Pages 9, 10, 10.1, 11, are included. Mr. Williamsen,

39, is deceased, his wife and children continue to be opposed to the bill.

Of the 38,000 acres, over 27,000 acres are protected from development from the Williamson Act. Over 11,500 acres are protected

by the Marin County Agricultural Land Trust, MALT, and the

Sonoma County Preservation Trust, SALT. More is protected by

government ownership. (as maps illustrate)

Of the 38,000 acres, all development rights are protected by

stringent local laws and zonings, which have been in effect for 25

years; 120 acres per dwelling in Sonoma; and 60 acres per dwelling

in Marin. Marin County may be the only county to require mandatory conservation easements in order to build a dwelling. If protected by MALT, SALT, and the Williamson Act, the development

rights are even more restrictive. (see map)

Because of all of the above, very few building permits have been

issued over the past 10 to 15 years. further testimony that there

is no push for development, nor a need for this bill. These are family farms that have been in operation since the 1800’s.

H.R. 1135 and H.R. 1995 is not the first time that farmland has

been included within the Point Reyes National Seashore park

boundary. Farmers fought to save their land from becoming park

land in the 1960’s and 1970’s, and now, none of that land is privately owned.3

——————

Merv McDonald submitted testimony pointing out that some ranchers were forced

out of the boundary and the land became part of the Pt. Reyes National Seashore.

(Refer to the attached letter.)

Congresswoman Woolsey, if you’re concerned about preserving

farmland, as your title for your legislation implies, I would strongly

encourage you, with Congress’ help, to increase funding to the

USDA Conservation Easement program and include our area as

one to receive the funds to purchase easements in Sonoma and

Marin Counties. This would allow funding for anyone that would

like to sell their easements to their land without the expansion of

the Point Reyes National Seashore park, and creating a ‘‘public/private’’ partnership or a ‘‘local/Federal’’ partnership. This would not

place an involuntary park boundary over our land. We are the best

stewards of our land. Keeping the agricultural easements under

the Department of Agriculture, not the Department of Interior as

part of a park, will help the farmers the most in the long-run as

history has shown.

The large map illustrates the landowner opposition to this park

expansion.4 All the maps illustrate the lack of need for such a bill

to prevent development. Please help my family, and the families of

the other farmers who want to continue to ranch without being included within the Point Reyes National Seashore park boundary.

Having a aprk boundary over our land is not voluntary and is a

waste of the taxpayers’ money. Thank you for hearing me.

——————
77

Opposition has been expressed to Ms. Woolsey. The chart on page 10 lists landowners who submitted letters (pages 21-70) or signed petitions (pages 71-81). To our

knowledge these landowners have not changed their position and are still opposed

to this legislation.

[The prepared statement of Ms. Coletti may be found at end of

hearing.]

[The information referred to may be found at end of hearing.]

Mr. POMBO. Thank you very much.

Ms. Furlong.

STATEMENT OF DONNA FURLONG, RANCHER

Ms. FURLONG. Good afternoon, gentlemen. My name is Donna

Furlong, and I’ve been ranching for most of my adult life. After my

husband passed away 14 years ago, I continued the family business

of raising beef, cattle, and sheep because I wanted to pass the family tradition on to my four sons and my grandchildren.

I am here today as a landowner who will be affected, and also

as a representative of the California Wool Growers Association.

You all received a letter from the California Wool Growers. I would

like to read an excerpt of that letter.

‘‘The California Wool Growers Association opposes H.R. 1135 and

H.R. 1995, which expands the Point Reyes National Seashore. Both

of the respective bills are misleading in title and summary. While

the author claims to be giving the Secretary of Agriculture the authority and appropriations for farmland conservation easements, it

is clear that this is nothing more than a park expansion bill. And

while the author insists that the bill is intended to preserve farmland, it does nothing more than create public access, where there’s

now private farmland, at the expense of taxpayers, local farmers,

and ranchers.’’

Most of the people I know want to preserve this farmland for future generations. They do not disagree with conservation easement,

but do not want to be included within a park boundary. This has

been touted as buffer zone for the park. The bay is already a natural buffer zone. Park land means public access, and public access

means lots of headaches for a rancher.

This bill in the beginning offered assurances that no public trails

could be put through the properties involved. This was taken out.

This is a grave concern of mine. The general public will not honor

a fence, and once they enter your property, even though they have

no right whatsoever to be there, they want you to be responsible

for their actions. What if my bull doesn’t like their looks?

My main concern is funding. This bill is on a matching-fund

basis. Marin County does not have sales tax to fund open space

and conservation easement. Marin County taxpayers voted down

Measure A last November, which would have provided the Marin

Agricultural Land Trust with money to fund conservation easements. The voters of California turned down Cal Paw 1994 which

would have provided the Marin Agricultural Land Trust with

money. The voters have said they do not want to fund more park

land, so where will Marin County get the matching fund? The only

matching fund Marin County has is around $15 million. Fifteen

million dollars is not enough to purchase conservation easements

within this boundary.
78

Before such a bill is ever considered, there should be enough

funds available for just compensation for all properties within the

area. You should not put a boundary around land, and then decide

what just compensation is, and where the money will come from.

A licensed appraiser has told me that being in a park boundary

cannot help but lower your property value.

Most people in agriculture want to continue, but it has to be viable. If you are truly interested in saving ag, help us with the bottom line, but don’t put a boundary around it. If I put an easement

on my property, and you allow predators to run amok as they do

in the park, and I can no longer raise livestock, what do I do? Sit

and look at my beautiful view of the ocean, or sell out at a very

reduced price? I feel that this bill takes away my property rights

with out just compensation. My property rights have already been

infringed on by the Coastal Commission, the Planning Department,

and the Gulf of Farallones National Marin Sanctuary. Don’t add

another layer of regulation. I would urge you please not to consider

this bill. Thank you.

[The prepared statement of Ms. Furlong may be found at end of

hearing.]

Mr. FALEOMAVAEGA. Thank you very much. Ms. Borello.

STATEMENT OF JUDY BORELLO, RANCHER

Ms. BORELLO. My name is Judy Borello, and I own a 864-acre

ranch within the proposed Farmland Protection Act. My reasons for

opposing this bill are as follows:

When Ms. Woolsey, by the way, got up here today and said that

the people—the ranchers for her bill within the zone are more in

the majority to support the bill—it’s totally wrong and bogus. Twothirds of the ranchers within the proposed boundary do not want

the supposed protection that her bill recommends. And the proof—

you can always talk to Martin Pozzi, who’s past president of the

Farm Bureau, because there were signed letters, signed signatures;

two-thirds of the majority of the ranchers within the zone are opposed to the bill.

In 1972 we could build a house on every 2 acres, then we ranchers were rezoned one house every 60 acres; a devaluation of 30

times of our property value. Right after the great devaluation took

place, 95 percent of the ranchers joined a state program called

Williamson Act. For a substantial reduction in taxes the ranchers

opted to not develop their ranches, leaving their land in open space

for the next 10 years. But the program automatically self renews

itself every day for 10 years. So, every day you’re being renewed

for 10 years, and so far I haven’t known any rancher that’s pulled

out of Williamson Act, so there’s a real layer of protection right

there.

On top of these two layers or protection, 40 percent of the 38,000

acres within the proposed boundary has been purchased by the

Marin Agricultural Land Trust, which is referred to as MALT. This

means that, even though the development rights cannot be used

under Williamson Act—in other words they’re kind of in a neutered

position—they are now permanently extinguished under the rights

to purchase a MALT easement.
79

To add to all of this already protection of the land on the east

shore of Tomales Bay, which is the land in question on this bill,

is a very scarce amount of water, due to the fact that our land is

geologically referred to as Franciscan formation, which is known

for its low bearing and inadequate for water bearing supplies.

There are like scarce pockets of the water in different places, but

it basically isn’t an abundantly watered piece of land. Reference to

USGS Water Supply Paper 1427, Geology and Groundwater in

Sonoma and Marin Counties is where you can find this information.

Summing all of this up and based on a logical conclusion, do we

need to spend the hard-earned tax dollar of the American people

to purchase what is already protected? There is 80,000 acres of

park land already purchased, and can’t be fully maintained because

of the lack of funding. So why purchase more? In fact, over 50 percent of our Marin County is off the private tax rolls, and these are

in state, Federal, or county park or open spaced districts.

My ranch is being lethally affected by this bill because, my late

husband, Robert Borello, who met an untimely death due a car accident in October 1992, was the past president of the Farm Bureau,

and one of the longest serving directors in past history. He was a

staunch believer in retaining agricultural land values and property

rights. He opted not to put Borello Ranch under Williamson Act,

believing that if you take the government carrot, you get the government noose. He kept his development right intact by paying full

taxes, developed a thriving rock quarry, septic ponds for the West

Marin County community, and parts of Sonoma County. He developed large dams on the property, one of which is 40-acre foot dam,

and spring fed, never losing half of its capacity. His hard work,

foresight, and determination created these assets, and now with

this Farmland Protection Act on a seemingly not-well-hidden park

bill, I stand to lose a lot as well as my neighbors.

The quarry has been idle since Robert’s death. Three quarry outfits have wanted to lease it, but when faced with the pending park

bill, have backed off, watching to see what happens. On November

17th the quarry will be reviewed by the Board on Mining, and

there’s a chance the quarry could be closed permanently because

idle position is granted for only so long of a time.

Due to this 5-year fracas over this park bill—let alone if it

passed—I stand to lose a substantial amount of money while it also

clouds the title to sell my ranch to the private sector. I believe that

my fellow ranchers and myself deserve a lot better from this. I

would like to see agriculture easements available to ranchers, but

not at the expense of forcing the many into while a few gain a deal.

It’s very funny to me that the agriculturalists, the ranchers themselves, including the ag experts in this deal say, they don’t want

it, it’s not protecting them, when in fact it weakens them. But the

politically non-savvy, non-agriculturally knowledgeable people, will

tell the rancher what’s right for him, and force it upon him, while

portraying to the public how they saved agriculture.

I know that the Democrats and Republicans have come together

over fiscal responsibility issues, and I hope that this Committee

will see the wisdom of not wasting taxpayers’ money on this faulty

bill. Perhaps if this bill guaranteed the rancher the right to be fully
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compensated for his land as in the original park bill, it would have

a chance; but not this forced boundary with limited compensation.

Thank you for allowing me time to speak on this issue. P.S.

Many politicians and environmentalists lust after our privately

owned land. They refer to it as their sacred viewshed. Don’t try to

take it from us with this cheap shot Farm Land Protection Act bill;

after all, I believe there is still a commandment that says Thou

shall not steal. Thank you.

[The prepared statement of Ms. Borello may be found at end of

hearing.]

Mr. POMBO. Thank you. Mr. Faleomavaega.

Mr. FALEOMAVAEGA. Mr. Chairman, I’d like to defer to the

gentlelady from California.

Ms. WOOLSEY. Thank you very much.

Mr. Chairman, I understand that after this vote, we’re going to

have six in a row, so let’s try to do this, and then we can let everybody out of this room.

First of all, I want you to know, all of you up here as witnesses,

thank you for coming. I cannot wait until the day we sit down, realize the misinformation that’s been kicked around, and realize the

benefits of still being in agriculture and at the same time your

neighbors have the benefit of volunteering into these easements if

they want them. I look forward to that. I think it’s going to happen.

I wouldn’t be doing this if I didn’t think it could happen.

But, you know, there’s a lot of confusion. There’s something that

confuses me, Judy, about your testimony. I know after our sitting

and talking you worry about the value of your quarry. In response

to this concern, this bill includes language, language actually that

Representative Pombo questioned. It’s on page 5, line 13 of the bill.

Ms. BORELLO. Lynn, can I say something here?

Ms. WOOLSEY. No, no, let me finish, please.

Ms. BORELLO. To answer you.

Ms. WOOLSEY. Well, I will let you. But I want to make sure you

know that this bill makes it possible for you and others to negotiate voluntarily for in-fee purchase of your land. And that was so

that you could be fully compensated for that land.

So my question to you, how could you be against this bill, when

actually your major concern is answered in the bill?

Ms. BORELLO. OK, I will answer you. First of all, when this bill

first started, Gary Giacomini was our supervisor. He was going to

get $70 or $80 million worth of seed money here to try to take care

of everybody. I was at that time told by Gary, who was friends with

my late husband, that my ranch would come out in fee, because it

is the only real deal. It isn’t in Williamson Act. It has development

rights.

Ms. WOOLSEY. Well, you could put it in.

Ms. BORELLO. OK. It has a quarry. It’s very diverse from the

other ranches, all right?

Ms. WOOLSEY. OK, I’m going——

Ms. BORELLO. But let me finish——

Ms. WOOLSEY. No, wait a minute. I need to take——

Ms. BORELLO. So then I count on the facts——

Ms. WOOLSEY. No, excuse me, Judy.
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Ms. BORELLO. [continuing] that I’m going to be bought out in fee,

and all of a sudden at the April meeting with you——

Mr. POMBO. The gentlewoman from California controls the time,

and we’re trying to keep this——

Ms. WOOLSEY. Yes. Judy, let me respond.

Mr. POMBO. [continuing] I’m trying to keep this as good as we

can.

Ms. BORELLO. Well, I need to answer her question.

Ms. WOOLSEY. No, Judy, what you need to know——

Ms. BORELLO. At that meeting you guys dumped me, but in the

meantime the bill wasn’t taking care of other people either.

Mr. POMBO. Please, let’s try to keep this as calm as we can. I will

give you ample opportunity to respond. If there is not time in the

hearing, I will give you the opportunity to respond in writing, and

your entire testimony will be included in the record at this point.

Ms. Woolsey.

Ms. WOOLSEY. Thank you very much, Mr. Pombo.

And Judy, it’s not that I’m cutting you off. I’ve got a lot of questions. And my point is, we did answer your concern in the bill. So

we’ll go from there to more misinformation.

The point keeps being made by those at the table that the landowners in the pastoral zone at the Point Reyes National Seashore

ended up having their land purchased. They came to the Congress

and asked if they could be bought out. That is why it happened.

They came to the Congress and asked, because the original bill prohibited purchase of their land, and that request was honored. So

please, we don’t need that misinformation.

There is also misinformation about whether or not the majority

of the landowners support this bill. Believe me, I sat with them,

one-on-one; the majority does. The Citizens for Protecting Farmlands report has people listed that have sent me letters just recently, supporting the bill. You have a deceased person on that list.

You have people registered both as property owners, and they’re

counted twice. You’re double-counting people.

So, all I can tell you, is that that’s——

Ms. BORELLO. Could you supply us with signatures——

Ms. WOOLSEY. [continuing] misinformation.

Ms. BORELLO. [continuing] of people that are for your bill——

Mr. POMBO. Is that a question?

Ms. WOOLSEY. No, my question is—now, I want to go on beyond

that. I want to talk about the letter of misinformation that came

from the Woolgrowers. Actually an example of the misinformation—my point is proved in what you said, Donna. You say that—

you’re quoting them, ‘‘While the author claims to be giving the Secretary of Agriculture the authority . . .’’ It shows how little they

know about this bill. It’s the Secretary of Interior that we’re dealing with.

People have not paid any attention to this bill. The information

that came from the cattlemen, full paragraph, talking about letting

people on the land for viewing, public access, no hunting. None of

that—all of that is protected for you in the bill; absolutely.

How are we ever going to get together when I keep hearing misinformation. You refuse to hear what’s really in the bill. Once you

do, and then I think we deal with it actually.
82

Now, Martin and Sally, I have a question.

I understand that you sold your conservation easements on your

land.

Mr. POZZI. Correct.

Ms. WOOLSEY. And that has worked well for your family, I believe.

Mr. POZZI. Correct.

Ms. WOOLSEY. I think you need to know a story that I heard

when I was going around talking to the neighbors and the farmers.

Two different farmers that I talked to—landowners who have

MALTED easements on their land, told me point blank—and now

I’m telling you they told me this. They told me that they did not

like my bill because if their neighbor needed to sell they did not

want to have to compete with fair market value. They didn’t want

to compete with H.R. 1995; they wanted to buy their neighbor out

cheap.

Is that fair?

Martin?

Mr. POZZI. I can’t tell you about cheap because the

appraisals——

Ms. WOOLSEY. Well they want to go below the appraisal, they tell

me.

Mrs. POZZI. We are in favor of the use of voluntary conservation

easements for the preservation of agricultural lands. We are opposed to our land becoming part of a park. We have sold our development right, and we didn’t ask that anyone else have their land

be included in a national park or have any other limitation in order

for our land to have the conservation easement. There are conservation easement programs available, and we request that you

use those, instead of including all of our land in a park, and you

expand on the funding in the program that’s available, instead of

causing this limitation on our land. We want to continue an active

agricultural production—a productive agriculture.

Ms. WOOLSEY. Well, I’m with you. We’re definitely together on

that.

Mr. POMBO. I’m going to have to cut you off.

Ms. WOOLSEY. And I’ve used up all my time.

Mr. Chairman, thank you.

Mr. POMBO. I’m going to have to cut you off. And I’ve got to

apologize to this panel. We have a series of six or seven votes,

which means we’re going to be over there for about 2 hours, and

I’m not going to make you stay here for the 2 hours.

I will tell you that there are questions that I have, that Mr.

Faleomavaega had, and that Mr. Hansen, the chairman of the Subcommittee, had for this panel. Those will be submitted to you in

writing.

I will encourage each of you, if you have further statements that

you would like to have included as part of the official record, to do

that, and I will hold the record open on this hearing for 10 days,

to give you an opportunity to have all of your information included

in the official record of this hearing. But unfortunately because of

the voting schedule, I’m going to have to adjourn the hearing. And

again, I apologize to all of you for the long wait in the abbreviated

hearing. But thank you very much for coming.
83

Ms. BORELLO. Thank you for hearing us out.

Mr. POMBO. The hearing is adjourned.

[Whereupon, at 3:40 p.m., the Committee was adjourned subject

to the call of the Chair.]

[Additional material submitted for the record follows.]
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