Third-Party Uses on Railroad Rights-of-Way 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

November 27, 2017

In Reply Refer To:

2800/2880/2920/9239 (301/350) P

EMS TRANSMISSION 12/05/2017

Instruction Memorandum No. 2018-014     

Expires:  09/30/2021  

To:                             All Field Office Officials

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

Subject:                     Third-Party Uses on Railroad Rights-of-Way under the General Railroad Right-of-Way Act of March 3, 1875

Program Area:  Rights-of-Way Management and Land Use Authorization Management.

Purpose:  This Instruction Memorandum (IM) transmits the Bureau of Land Management (BLM) policy on third-party uses on railroad rights-of-way (ROW) authorized under the General Railroad ROW Act of March 3, 1875 (1875 Act).

Policy/Action:  Based on the Department’s legal interpretation expressed in the Acting Solicitor’s Opinion M-37048 – Withdrawal of Solicitor’s Opinion M-37025 issued on November 4, 2011, and Partial Withdrawal of Solicitor’s Opinion M-36964 issued on January 5,1989, issued on September 1, 2017, the rights-of-way granted to railroad companies under the 1875 Act include the right to lease portions of their easement to third parties without BLM permit or grant, provided that such leases are limited to the surface, broadly defined, of the easement and do not interfere with the continued use of the easement for railroad operations.  As a consequence, an authorization from the BLM for existing or proposed uses within 1875 Act ROWs, including third-party uses, is generally unnecessary.  It is therefore unnecessary for the BLM to actively review for authorization purposes such uses within 1875 Act ROWs. 

Timeframe:  This IM is effective immediately.

Budget Impact:  The application of this policy will have no impact on the budget.   

Background:  Washington Office (WO) IM 2017-060, dated March 29, 2017, rescinded the WO IM 2014-122, dated August 11, 2014, for Evaluation of Activities within Railroad Rights of Ways Granted under the General Railroad Right of Way Act of March 3, 1875 and also rescinded WO IM 2012-038, dated December 2, 2011, which was interim guidance on the same subject.  In addition, by Memorandum, dated June 30, 2017, the Acting Solicitor for the Department of the Interior temporarily suspended and withdrew Solicitor’s Opinion M-37025 in order to determine if the analysis set forth in the opinion was complete and whether post-2011 court decisions should be factored into the Solicitor’s Opinion.

On September 1, 2017, the Acting Solicitor issued Opinion M-37048 withdrawing Solicitor’s Opinion M-37025 and superseding Solicitor’s Opinion M-36946 only with respect to its interpretation of the 1875 Act.  Opinion M-37048 concludes that “the rights-of-way granted to railroad companies under the 1875 Act allow railroad companies to lease portions of their easements to third parties without permit or grant from the [BLM], provided that such leases are limited to the surface, broadly defined, of the easement and do not interfere with the continued use of the easement as a railroad.”  Opinion M-37048 alternatively concludes that even if the scope of an 1875 Act ROW is limited to railroad purposes, the 1875 Act should be interpreted broadly to include activities and uses in accordance with the incidental use doctrine.  In other words, a railroad may lease land for activities or uses within an 1875 Act right-of-way, “as long as the proposed use is not otherwise prohibited, provides some incidental benefit to the railroad, and does not inhibit the continued use of the right-of-way for railroad operations.”  Consistent with the conclusions of Opinion M-37048, the BLM will no longer take an active role in reviewing existing or proposed uses within 1875 Act ROWs.            

Manual/Handbook Sections Affected:  No BLM handbooks or manuals will be affected.

Coordination:  The National Renewable Energy and Rights-of-Way Coordination Office (WO-301) prepared this IM in coordination with the Office of the Solicitor.

Contact:  If you have any questions concerning the content of this IM, please contact me at   202-208-4201, or your staff may contact Stephen Fusilier, Acting Chief, National Renewable Energy and Rights-of-Way Coordination Office (WO-301) at 202-912-7148 and sfusilie@blm.gov or Erica Pionke, Realty Specialist (WO-301) at 202-912-7219 and epionke@blm.gov.

Signed by:                                                                  Authenticated by:

Timothy R. Spisak                                                     Robert M. Williams

Acting, Assistant Director                                         Division of IT Policy and Planning,WO-870

Energy, Minerals, and Realty Management

1 Attachment 

     1 - Solicitor M-Opinion 37048 (25 pp)