American Railway Development Association

August 2014
Real Estate Feature: 
Utility Crossings of Railroad Right of Way

By Michael J. Barron, Jr., Fletcher & Sippel LLC

For railroads, the issue of utilities, pipeline operators, wire companies, gas companies, etc., trying to expedite crossings of railroad property is a topic of frequent concern. Railroads sometimes find themselves in the situation of trying to preserve the safety and integrity of their rail lines and operations in the face of determined attempts to expedite crossings of railroad property without agreement or adequate notice.

Railroads frequently find themselves under the jurisdiction of state law on these issues as the preemptive effect of federal law under the Interstate Commerce Commission Termination Act, or ICCTA, has not always held sway in these situations. Similarly, the Surface Transportation Board ("STB") has not always been helpful to railroads with regards to federal preemption on these issues. In a case involving condemnation of the property of Eastern Alabama Railway LLC by a water and sewer utility, the STB held that matters in dispute regarding this proposed crossing of the rail line by the utilities was a matter of state law and not federally preempted. See Eastern Alabama Railway LLC - Petition for Declaratory Order, STB Docket Number FD 35583, decision served March 9, 2012.

Despite being under the jurisdiction of state law in dealing with these issues and not always being able to rely on federal preemption, railroads do have an array of powerful arguments at their disposal. For one thing, railroads are private entities and, therefore, should be able to assert the rights of private property owners in eminent domain cases. Therefore, railroads are well advised to make every effort to determine the exact status of ownership when....READ MORE
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The American Railway Development Association (ARDA) is a not-for-profit educational trade association founded in 1906 to promote Economic Development, Real Estate Development, Technology, and Environmental Activities of the North American Railroads. 
The objectives of the Association are to foster the industrial, real estate, natural resources, market development activities and environmental concerns of the North American railroads; and through the advancement of ideas and education of its members, further promote the effectiveness of railway development and related work.
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