Evaluation of Activities within Railroad Rights-of-Way Granted under the General Railroad Right-of-Way Act of March 3, 1875

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

August 11, 2014

In Reply Refer To:
2800/2880/2920/9239 (350) P

EMS TRANSMISSION 08/12/2014
Instruction Memorandum No. 2014-122       
Expires:  09/30/2015                                                                                        

To:                   All Field Office Officials

From:              Assistant Director, Energy, Minerals, and Realty Management

Subject:           Evaluation of Activities within Railroad Rights-of-Way Granted under the General Railroad Right-of-Way Act of March 3, 1875       DD:  09/30/2014

Program Area:  Right-of-Way Management.

Purpose:  This Instruction Memorandum (IM) provides revised guidance in response to Solicitor’s Opinion M-37025 (2011 M Opinion), dated November 4, 2011, which withdrew those portions of Solicitor’s Opinion M-36964 (1989 M Opinion), dated January 5, 1989, relating to the scope of a railroad’s authority to undertake or authorize activities[1] within railroad rights-of-way (ROW) granted pursuant to the General Railroad Right-of-Way Act of March 3, 1875 (1875 Act) across Bureau of Land Management (BLM)-managed lands.  This IM replaces the interim guidance provided in BLM WO-IM-2012-038 (Interim Guidance Relating to the Scope of a Railroad’s Authority to Approve Uses within ROW Granted under the Act of March 3, 1875).

Policy/Action:  Based on a review of the 1989 M Opinion, Proposed Installation of MCI Fiber Optic Communications Line within Southern Pacific Transportation Co.’s Railroad ROW, the 2011 M Opinion withdrew those portions of the 1989 M Opinion addressing a railroad’s authority to undertake or authorize activities within 1875 Act railroad ROWs.[2]

The 2011 M Opinion concluded that a railroad’s authority to undertake or authorize others to undertake activities within an 1875 Act ROW is limited to those activities that derive from or further a railroad purpose.  As the 2011 M Opinion explains, the inquiry into whether a particular activity derives from or furthers a railroad purpose is a fact-specific inquiry that starts with the basic premise that a railroad has the exclusive right to use as much of the surface and subsurface within an 1875 Act ROW as may be needed to further the construction or operation of the railroad (e.g., laying of track, constructing a station, and operating trains).  An activity derives from or furthers a railroad purpose if it originates from or promotes such a purpose.  Aside from core railroad activities (e.g., track construction), examples of activities that have been found to derive from or further a railroad purpose include the installation of telephone and telegraph lines that facilitate railroad communications and the construction of freight warehouses and other structures that support a railroad’s receipt and transport of freight. 

The guidance contained in subsections B through D below describes how the BLM will evaluate on a case-by-case basis whether existing and proposed activities within 1875 Act ROWs across BLM-managed public lands derive from or further a railroad purpose. 

The determination of whether an activity located within an 1875 Act ROW across BLM-managed public lands is within or outside the scope of such 1875 Act ROW must be made by the BLM.  The BLM will require an authorization under the applicable legal authorities (e.g., the Federal Land Policy and Management Act (FLPMA), or the Mineral Leasing Act (MLA)) if the activity is outside the scope of the 1875 Act ROW.  The criteria the BLM will apply in making its determination are found in subsection E below and in attachment 1.  Activities that the BLM determines do not derive from or further a railroad purpose within an 1875 Act ROW on BLM-managed public lands are outside the scope of the 1875 Act ROW and will require BLM authorization.  Most, if not all, of these authorizations will be governed by Title III or Title V of FLPMA or Section 28 of the MLA.  Activities that the BLM determines derive from or further a railroad purpose, on the other hand, can continue or proceed without BLM action or authorization pursuant to the 1875 Act. 

For any particular activity that the BLM determines is outside the scope of an 1875 Act ROW, it is recommended that the applicable BLM office with jurisdiction over the project meet with the parties undertaking or proposing to undertake the activity prior to their filing of an application for an authorization for such activity.  Acceptance of an application by the BLM does not constitute the BLM’s approval of or authorization for the activity.  The BLM will process all applications received in accordance with the applicable statutes, regulations, and policy.  In some circumstances, the BLM may deny an application.  For example, the BLM may deny a FLPMA Title V application if (1) the activity is inconsistent with the purpose for which BLM manages the public lands in question under the applicable resource management plans (RMP) - e.g., Wilderness Study Areas, Areas of Critical Environmental Concern, etc.; (2) the activity is not in the public interest; (3) the proponent is not qualified to hold a ROW grant; or (4) issuing the ROW grant would be inconsistent with the MLA, FLPMA, other laws or regulations. 

The BLM will deny an application if the activity in question interferes with railroad purposes because the BLM lacks the authority to authorize activities that are inconsistent with valid pre-existing rights.

1. Public Request for Information About Existing Activities Located Within 1875 Act ROW

In light of the 2011 M Opinion’s conclusion, and in recognition that railroads and other parties may have undertaken various activities within 1875 Act ROWs (some of which may have been undertaken in reliance on the 1989 M Opinion), the BLM Washington Office will publish a Federal Register notice requesting information about existing activities located within 1875 Act ROWs.  The Notice will request parties with activities located within 1875 Act ROWs notify the BLM within 180 days following publication of the notice in the Federal Register.

In addition to requesting information about existing activities, the notice will also explain the process that the BLM will use to evaluate those activities to determine whether they are derived from or further a railroad purpose as outlined in subsection E below and attachment 1.  Finally, the notice will identify the process(es) that the BLM will use to process any subsequent applications for BLM authorizations related to those activities.

2. When the BLM is Notified of Existing Activities Located Within 1875 Act Railroad ROWs

The procedures in this subsection apply to any existing activities located within an 1875 Act ROW prior to release of Opinion M-37025 on November 4, 2011, where the party or parties undertaking such activities notify the BLM of the existing activities, either in response to the notice in subsection A or otherwise.  Under such circumstances, the BLM will evaluate the activity pursuant to the procedures set forth in subsection E below and attachment 1, and will notify the party or parties of the BLM’s determination of whether the activity is within the scope of the 1875 Act or requires BLM authorization. 

In order for the BLM to evaluate an activity, the BLM state office having jurisdiction over the lands in question should request information from the party undertaking the activity as outlined in attachment 1.  For multistate projects, information can be submitted to any of the BLM state offices having jurisdiction in the project area.  Any BLM state office undertaking an evaluation of an activity affecting multiple states will coordinate the evaluation of the activity with all affected BLM state offices. 

Upon receipt of notification of an activity located within an 1875 Act ROW, the BLM state office(s) will serialize the case in the Legacy Rehost 2000 (LR2000) System according to data standards set forth in attachment 2[3] and begin evaluating the activity consistent with the guidance provided in subsection E and the process outlined in attachment 1 to determine whether the activity is within the scope of the 1875 Act ROW.  As part of that evaluation, the BLM may request additional information from the party undertaking the activity and/or from the railroad company holding the 1875 Act ROW to complete the evaluation of the activity and the activities relationship to railroad purposes. 

3. When the BLM Becomes Aware of Existing Activities Located Within an 1875 Act Railroad ROW

If the BLM becomes aware of an existing activity located within an 1875 Act ROW that has not previously been identified, evaluated, or authorized, the BLM will identify the party undertaking the existing activity.  The BLM will serialize the case in the LR2000 System according to the data standards set forth in attachment 2. 

Notification process when the BLM becomes aware of existing activities located within an 1875 Act Railroad ROW 

The BLM will send an initial certified letter to both the holder of the 1875 Act ROW and the party undertaking the activity, requesting additional information regarding the activity.  The letter will provide 90 days from receipt of the letter to submit the additional information being requested.

If the railroad ROW holder and/or party undertaking the activity responds with an assertion that the activity in question is derived from or furthers a railroad purpose (see subsection E below), the BLM will assess whether the holder and/or party undertaking the activity provided enough information to support an evaluation of the activity.  If the information provided appears to the BLM to be adequate to support an evaluation of the activity, the BLM will begin evaluating the activity consistent with the guidance provided in subsection E and the process outlined in attachment 1.  However, if the railroad ROW holder and/or the party undertaking the activity do not respond, or if the BLM determines that additional information is needed, the BLM will send a second certified letter requesting additional information.  The second letter will provide 60 days from receipt in which to submit the requested information. 

If the railroad ROW holder and/or the party undertaking the activity do not respond to the first letter or if they respond but do not provide the requested information within 60 days of receipt of the second letter, the BLM will send a third certified letter.  The third letter will provide notice that in the absence of information showing otherwise, the BLM will conduct an evaluation to determine whether the activity derives from or further a railroad purpose based on the information practically available to it, and that if the evaluation results in a determination that the activity does not derive from or further a railroad purpose, the BLM will consider whether a trespass notice should be issued.  The letter will provide 30 days from receipt to submit the requested information.  If the BLM does not receive the requested information within 30 days, the BLM would have the option of proceeding with an unauthorized use action in accordance with the regulations applicable to the activity in question (see 43 CFR 2808, 2888, 2920.1-2, 2933.33, 9239) after documenting its evaluation of the activity based on the available information. 

Determination of whether the activity is within the scope of the 1875 Act or requires BLM authorization

In connection with the review of an existing activity locatedd within an 1875 Act ROW, the BLM may determine that athe activity is within the scope the railroad ROW and that accordingly no BLM authorization is required.  If the activity is within the scope of the railroad ROW, the BLM will issue a letter and close its file on the matter.  For those activities that the BLM determines are outside the scope of the 1875 Act ROW, the BLM should determine, pursuant to the applicable authorities (e.g., FLPMA Title III, Title V, or MLA, Section 28), the type of authorization that is required or that the BLM will not authorize an existing activity and advise the party of that determination.

If a party undertaking an existing activity has complied with the procedures outlined in subsection B and C above and the BLM determines that the activity in question does not derive from or further a railroad purpose, the BLM will exercise its enforcement discretion under the applicable unauthorized use regulations (see 43 CFR 2808, 2888, 2920.1-2, 2933.33, 9239) until the party obtains a BLM authorization for the activity or the party discontinues the activity. 

Discontinuation of the activity and removal of any associated facilities in lieu of applying for an authorization for the existing activity

Where the BLM determines that an authorization is required, the party undertaking the activity may decide to discontinue the activity and remove any associated facilities in lieu of applying for an authorization for the existing activity.  In such circumstances or when the BLM determines that an authorization cannot be issued, the BLM will work with the party undertaking the activity to determine a reasonable timeframe for discontinuing the activity (i.e., the removal of facilities from the public lands and final reclamation) to the satisfaction of the authorized officer, if applicable.  The BLM will coordinate the timeframe with the railroad ROW holder if the ROW holder is not the party undertaking the activity.  Following the close of the agreed-upon time period for discontinuing the activity, if the party undertaking the activity has not discontinued the activity (i.e., full removal of facilities and final reclamation), the BLM will consider taking actions in accordance with the applicable unauthorized use regulations (see 43 CFR 2808, 2888, 2920.1-2, 2933.33, 9239).

4. New Activities Located Within 1875 Act Railroad ROWs 

Proponents of all new activities located within those portions of an 1875 Act ROW across BLM-managed lands should notify the BLM of those activities prior to undertaking them.  The BLM should encourage proponents to request that the BLM evaluate whether those activities derive from or further a railroad purpose in order for the BLM to determine whether the activity requires BLM authorization.  As with the evaluation of existing activities, the BLM will follow the directions in attachment 2 for serializing the case, and then begin evaluating the proposed activity consistent with the guidance provided in subsection E and the process outlined in attachment 1.  If the activity is within the scope of the railroad ROW, the BLM will issue a letter and close its file on the matter.  For those activities that the BLM determines are outside the scope of the 1875 Act ROW, the BLM should determine pursuant to the applicable statutes, regulations, and policy (e.g., FLPMA Title V, MLA), the type of authorization that is required for the activity in question or whether, pursuant to the applicable authorities, the BLM will not authorize an activity for the reasons noted above.  The BLM will advise the party of these determinations via a business letter as outlined below.    

5. Evaluation of Existing and Proposed Activities Located Within 1875 Act Railroad ROWs

Determining whether a particular activity derives from or furthers a railroad purpose requires a fact-specific case-by-case evaluation.  Generally speaking, the information necessary to support such an evaluation should be provided by the railroad ROW holder and/or the party undertaking the activity.  However, the BLM should also consider any other information practically available to it, which information may be particularly important when the railroad ROW holder, and/or the party undertaking the activity are non-responsive to the BLM’s request for information.

The case-by-case evaluation described in this section must consider the following factors. 

• The specific purpose of the 1875 Act, which was to give railroads the exclusive right to use and occupy the granted ROW for railroad purposes.
• The concept that, even though railroad ROW grants are generally broadly construed, any doubts about the scope of such grant are still to be resolved in the Government’s favor.  As a practical matter, this means that a railroad ROW holder and/or the party arguing that a particular activity is within the scope of an 1875 Act ROW must provide sufficient evidence to overcome any doubts as to whether a particular activity is within the scope of the ROW.  
• The relationship between the activity and the railroad – e.g., does the activity in question originate or issue from, help promote, and/or advance the railroad purposes?   
• Historical industry practice with respect to the activity in question – e.g., is the proposed activity one that has been used by railroads previously in furtherance of a railroad purpose?

As the 2011 M-Opinion explained, activities found to derive from or further a railroad purpose can also provide non-railroad benefits.  For example, a telephone line that is located within an 1875 Act ROW that provides station communication might also support general/non-railroad residential/commercial communications.  The fact that an activity may provide other non-railroad benefits in and of itself does not necessitate a finding that the activity is outside the scope of an 1875 Act ROW, so long as it is demonstrated that the activity derives from or furthers a railroad purpose.  The nature and extent of the non-railroad benefits of an activity relative to the railroad purpose of the same activity may inform the BLM’s overall evaluation of that activity (e.g., Did the railroad purpose or the non-railroad purpose drive the activity or drive the design of the activity in question?  What is the primary objective of the activity in question and how interrelated is it with the identified railroad purpose?). 

The following types of activities have been found to derive from or further a railroad purpose even though they may have also provided substantial non-railroad benefits:  telephone lines providing both railroad and commercial communications, commercial warehouses that supported the railroad, power lines that provided power to the railroad and others, and bulk and retail oil facilities that provided fuel for railroad and other uses.  As the 2011 M Opinion explains, these examples are illustrative only (i.e., not all telephone lines are necessarily within the scope of an 1875 Act ROW); such determinations require a case-by-case evaluation of the specific circumstances surrounding a particular activity. 

When evaluating existing or proposed activities located within an 1875 Act ROW, the BLM may also consider the following factors on a case-by-case basis:

1. The current Manual for Railway Engineering (MRE), an annual publication of the American Railway Engineering and Maintenance Association (www.arema.org).  The MRE provides recommended practices for the railway industry (see Branch Chief, Rights-of-Way (WO-350) for ordering information);
2. Information provided by the party undertaking the proposed or existing activity and/or any other information relating to the subject activity;
3. Engineering design standards applicable to the activity in question relevant to the geographical area(s) where it is located;
4. Any relevant case law or other legal guidance provided by the Solicitor’s Office;  
5. Any input from the railroad company holding the subject 1875 Act ROW to the extent they are not already involved in the process; 
6. Any articles of incorporation, corporate charter, legal filings or publicly noted information that explain the purpose of the railroad company’s operations; and 
7. Current and past BLM RMPs and activity plans for the public lands in question, information in the LR2000 System, Master Title Plats, Historical Indices, historic maps, and the like.

The evaluation of existing/proposed activities may necessitate review by a BLM engineer, other BLM personnel, and the Solicitor’s Office.  In addition, the BLM state offices may contact the Washington Office Branch of Rights-of-Way (WO-350), for assistance with evaluations.

If the BLM concludes that the subject activity derives from or furthers a railroad purpose, then the activity does not require a BLM authorization.  The party can undertake the activity or the railroad can authorize the activity at its discretion, subject to any other applicable requirements.  As noted above, in those instances the BLM will issue a letter to that effect and close its file on the matter.

If the BLM concludes that the subject activity does not derive from or further a railroad purpose, the party undertaking the activity must submit an application to the BLM for the appropriate authorization in order for that new activity to proceed or for the existing activity to continue. 

The Washington Office, Division of Lands, Realty and Cadastral Survey (WO-350) will monitor and evaluate ROW workloads from LR2000 in accordance with the data standards in attachment 2.  

The BLM will process such applications in accordance with applicable statutes, regulations, and policies.  Since a railroad has the exclusive right to use the entirety of its 1875 Act ROW for the purposes of operating a railroad, any non-railroad related activity undertaken or authorized within such ROW cannot otherwise interfere with the railroad’s operations.  Therefore, BLM approval of any such activity located within an 1875 Act ROW across BLM-managed lands will require coordination with the railroad ROW holder to ensure such activities do not interfere with railroad operations.  The BLM will process applications for activities located within 1875 Act ROWs subject to the same fees and requirements that the BLM normally requires for such activity on BLM-managed lands under applicable statutes, regulations, and policies, including, but not limited to, cost recovery fees (i.e., processing and monitoring fees), rental fees, bonding requirements, and strict liability where appropriate.

Once the BLM has completed its evaluation of the applicability of the 1875 Act of the proposed or existing activity, the BLM authorized officer will, by certified mail using a business-letter format, notify the party undertaking the activity and the holder of the 1875 Act ROW of its determination.  The BLM’s determination whether an activity does or does not derive from or further a railroad purpose, and by extension whether a BLM authorization is required for that activity, does not determine any final rights or obligations, does not constitute authorization or disapproval of any particular activity, and no legal consequences for the activity in question flow from that determination.  Therefore, the BLM’s determination, as reflected in the business-letter notification, is not a final agency action/decision and therefore is not subject to appeal under the regulations found at 43 CFR Part 4 (BLM Manual Sections 1841.1.D. and 1841.15).  All letters referenced above reporting the results of any BLM evaluation under this IM should notify the party receiving the letter that they have a continuing obligation to notify the BLM of new activities they might undertake within an 1875 Act ROW because any determination made with respect to any particular activity is limited to the facts before the BLM at that time of such determination.                                                                                                              

Implementation: Each BLM state director must identify a point-of-contact for railroad ROW evaluations for 1875 Act ROWs.  Within 45 days of issuance of this IM, each BLM state director will forward the names of points-of-contact to Jennifer Whyte, Realty Specialist, Railroad Program Lead, WO-350.

Timeframe:  This information and guidance is effective immediately.

Budget Impact:  This policy has a moderate budget impact.  The budget impact will depend on the cost of the Federal Register notice, the cost of other public notices, the amount of outreach, and the number of activities that need to be evaluated using the process outlined in this IM, such as pre-application meetings, records management, and coordination.  If the evaluation results in the submittal of an application, the BLM will primarily rely on cost recovery for processing applications and monitoring the authorizations.  If it is necessary to open an unauthorized use action, the BLM costs for processing the action will be pursued to the extent allowable in accordance with the unauthorized use regulations applicable for the subject use (i.e., 43 CFR 2808, 2888, 2920.1-2, 2933.33, 9239).

Background:  On January 5, 1989, the Solicitor issued Opinion M-36964 which, among other things, concluded that railroads possessed “what is tantamount to a fee interest in [their] 1875 Act rights of way,” allowing them to undertake or authorize any activities located within these ROWs regardless of purpose.  As a result of further review of the 1875 Act and applicable judicial decisions, the Solicitor issued Opinion M-37025 on November 4, 2011, withdrawing that part of Opinion M-36964 concerning the scope of a ROW issued pursuant to the 1875 Act.  As Opinion M-37025 explains, railroad companies have the authority to undertake or authorize activities located within an 1875 Act ROW if those activities derive from or further a railroad purpose, while the BLM retains jurisdiction over activities located within the 1875 Act ROWs across BLM-managed lands that do not derive from or further a railroad purpose.

Manual/Handbook Sections Affected:  This IM transmits policy that the BLM will incorporate into the BLM Right-of-Way Manual Series 2800/2880 during the next revision. 

Coordination:  WO-350 developed this IM in consultation with the WO-100 and coordinated with the Solicitor’s Office and BLM state and field offices.

Contact:  If you have any questions concerning the content of this IM, please contact me at   202-208-4201, or your staff may contact Lucas Lucero, Senior Advisor (WO-300) at 202-912-7342 or LLucero@blm.gov, or Jennifer Whyte, Realty Specialist, Railroad Program Lead (WO-350) at 202‑912‑7219 or JWhyte@blm.gov.

 

Signed by:                                                                   Authenticated by:
Michael Nedd                                                             Robert M. Williams
Assistant Director                                                       Division of IRM Governance,WO-860
Energy, Minerals and Realty Management

2 Attachments
     1 - Process for Evaluation of an Activity Located within a Right-of-Way Granted under the General Railroad Right-of-Way Act of 1875 (4 pp)
     2 - Legacy Rehost 2000 System - Procedures for Serializing Activity Evaluation Requests, General Railroad Right of Way Act of March 3, 1875 National Data Standard (5 pp)