Residents ponder rails-to-trails lawsuit

Crews bury a wastewater line on the former railroad bed near Painter. An area man is considering a lawsuit because of land access issues caused by the railroad right of way. Photo by Ted Shockley.

By Stefanie Jackson – Can landowners be compensated if they feel their property rights have been violated by the proposed hiking and bicycling trail?

An Exmore-area couple is asking an attorney that question, the answer to which could have widely ranging impacts.

There are hundreds of Eastern Shore property owners who own land by the Shore’s former railroad, which is being converted to a public trail, and could file a lawsuit against the federal government for just compensation.

Among them are Wardtown residents Ken and Mary Dufty, who are considering suing the U.S. government because they say they can’t access their own land. 

The U.S. Surface Transportation Board, which regulates railroads, decided in late 2019 to allow the Eastern Shore’s railroad to be abandoned. The railroad’s operation had ceased in 2018.

Through legal agreements called easements, the railroad had the “right of way” to run tracks on nearly 50 miles of the Shore across other people’s property.

Earlier this month, Ken Dufty wrote to the Flint Cooper Law Firm in Illinois, which specializes in rails-to-trails lawsuits.

Dufty’s action was prompted by the local rails-to-trails committee denying him access to his property near the railroad right-of-way – because he would have to cross the right-of-way to access it. 

The committee announced, “anyone that is caught crossing or using the old rail line will be prosecuted to the fullest extent of the law until the (rails to trails) project is complete,” according to Dufty’s Aug. 7 letter.

Regarding Dufty’s ability to access his property, the law firm noted that if he decides to sue the federal government, he can seek “cost to cure” damages, including the cost to restore access to his property.

The issue has been mentioned before.

According to a March 2021 article in the Eastern Shore Post, Accomack’s then-county attorney, Cela Burge, noted that a notice of interim trail use “sets a time clock ticking for any folks … that have property along the rail line – and it puts in place a statute of limitations for any of them that would wish to make a claim in federal court.”

The statute of limitations is six years from the time the notice of interim trail use or NITU is issued.

In January 2020, the Surface Transportation Board issued a NITU to the Dahlgren Railroad Heritage Trail Association, of northern Virginia.

The notice allowed a period of 180 days for the railroad association to negotiate an agreement with Canonie Atlantic, the company that manages the railroad, to create a public trail where the railroad once ran.

Because the notice was issued by a federal government agency in accordance with the U.S. National Trails Act, it could be argued that the federal government’s power of eminent domain was used to take the property in the railroad right-of-way for public use – in this case, a public trail.

The U.S. Constitution specifies the government can take any property for public use, but not without paying for it. 

The negotiation period between Canonie Atlantic and the Dahlgren Railroad Heritage Trail Association was set to expire last month, but in March, a letter was filed with the Surface Transportation Board to replace Dahlgren with the local Eastern Shore Rail Trail Foundation as trail sponsor.

If the request is approved, a new NITU will be issued, and negotiations will resume.

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