BLM Issues Guidance on Uses of Railroad Right of Ways

WASHINGTON , D.C. –  The Bureau of Land Management (BLM) today issued guidance to its state and field offices on how to evaluate activities on thousands of miles of public land that was granted to railroad companies as rights–of-way under a 19th century law. BLM land managers will use the guidance to determine whether the lands are being properly used under the law. 

The General Railroad Right-of-Way Act of 1875 (1875 Act) granted railroad companies a 100-foot right-of-way (ROW) on public land on either side of a railroad center-line with exclusive right to use as much of the surface and subsurface area as needed to further the business of the railroad.  Thousands of miles of 1875 Act ROWs are estimated to exist on public land in the western United States.If an evaluation under the new guidelines determined that an activity served a railroad purpose, the BLM would take no action and the activity would continue without BLM oversight.  If, however, an evaluation found that an activity does not serve a railroad purpose, then the activity would require BLM authorization under the Federal Land Management and Policy Act or the Mineral Leasing Act.  The BLM would work with the railroad or whoever is undertaking the activity to determine the appropriate process. 

Activities authorized by the 1875 Act that serve a railroad purpose include: telegraph, telephone and fiber optic lines that provide for both railroad and commercial communications; warehouses that provide for receipt of freight by the railroad while also providing other retail services; transmission lines that provide power to the rail line and commercially; and station grounds, maintenance yards, and related improvements.  While not directly related to the operation of trains, these activities are nevertheless necessary for railroad business.“These evaluations are important because the BLM has the responsibility as a land steward to ensure that public lands are managed in a responsible way,” said Steve Ellis,BLM Deputy Director of Operations. “And because each activity has a unique situation, the evaluations will be done on a case-by-case basis.”

The guidance was issued through an Instruction Memorandum (IM) following the Department of the Interior Solicitor’s legal opinion about activities within the 1875 Act ROWs.  That opinion, issued in 2011, says 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.  The IM replaces interim direction on the Solicitor’s opinion that the BLM issued in December 2011. 

Once the IM is issued the guidance will trigger formal review of all pending proposed projects within an 1875 Railroad ROW. Formal review and evaluation of the use will be evaluated for all proposed projects on public land to determine if the use derives from or furthers a railroad purpose. Currently, the BLM has one application pending for evaluation of the use in Southern California known as the Cadiz Project.

The BLM plans to publish a notice in the Federal Register asking parties undertaking activities within the 1875 Act ROWs for information about the activities.  Parties will have 180 days after the Federal Register notice to let the BLM know about the activities, after which evaluations will begin.  You may read the IM by clicking here: http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2014/IM_2014-122.html.