Proposal to Allow States Limited Power of Eminent Domain over Railroads

I recently asked our Congressional representatives, Adam Schiff and Judy Chu, to modify eminent domain rules over freight railroads. Without reforming eminent domain rules, the Union Pacific route will be eliminated. According to the Rail Authority engineers I spoke with, there are a number of reasons why the Union Pacific route is ideal compared with building high speeed trains along the 10 or the 60 freeways. For example, the trains will need to go slow to make a sharp curve south of Union Station to reach the I-10 freeway route. In contrast, it would make a more gentle curve at high speeds to reach the Union Pacific route. The Union Pacific route is also more straight, which will allow the trains to maintain speeds more than a route that uses the more curvy I-10 freeway route.

Such legislation to modify eminent domain rules over freight railroads has several goals:

  • to bring Union Pacific to the bargaining table (Without a chance at reform, Union Pacific has little to no incentive to come to the bargaining table and discuss selling or allowing the Rail Authority to use its right of way.);
  • to help resolve issues related to Union Pacific with other segments of the high speed rail project;
  • to provide one more alternative route for the Rail Authority to consider during its environmental impact studies;
  • improve potential for HSR nationwide.


The legislation would have four elements.

  1. Definitions
    • Underutilized Right of Way means less than 50% of the right of way is currently used for rail transport.
    • High Speed Rail means sustained speeds over 110 MPH in urbanized areas and capable of more than 200 MPH in rural areas.
  2. Power of eminent domain
    • States will have the power of eminent domain when less than 25% of the right of way is used for rail transport.
    • States may petition the Surface Transportation Board to use eminent domain when the railroad uses between 25% and 50% of the right of way.
  3. A role for the Surface Transportation Board, and continued federal oversight
    • The railroad may appeal to the Surface Transportation Board.
      • In which case, the Surface Transportation Board would analyze whether the exercise was appropriate.
      • Environmental study could continue during the appeals process.
    • Surface Transportation Board would have power to cancel an exercise of power of eminent domain
    • The Surface Transportation Board would be given some guidance about when to approve a state’s request or cancel an exercise, including the amount of space requested, impact on freight delivery, current and historical freight capacity, existing passenger rail usage, and type of rail line (main, trunk, spur, etc).
  4. Limitations to power of eminent domain
    • The state may not take more than 50% of the right of way unless the right of way has not been used for 5 years, in which case the state may seize the full property under eminent domain.
    • State may only exercise its powers of eminent domain for passenger rail transport.


To pass, the legislation will require carrots to acquire support of other representatives and the business community. Here are some things that might help legislation gain necessary support:

  1. Transfer of Amtrak obligations
    • ´╗┐Any passenger rail obligations, including easements, on the freight hauler for that right of way would be transferred to the high speed rail agency. In that way, Union Pacific could transfer to the Rail Authority any obligations to Amtrak or Metrolink over that right of way.
  2. Waiver of liability/ limited liability
    • Railroads will ask for full waiver of liability regardless of fault.
    • Railroads may settle for the passenger rail company/agency taking the first bite after an accident regardless of who was at fault.
      • I was told, but have not verified, that the latter is the arrangement made by BNSF and Amtrak/Coaster for trackage between Orange County and San Diego.

This proposed legislation is aimed at giving the Rail Authority an opportunity to study the Union Pacific route. Even if the legislation is not helpful to my cause, which is to get the Rail Authority an opportunity to truly consider the Union Pacific right of way, I expect that such legislation will help promote high speed rail in other areas of the state or country. It may also successfully get Union Pacific and other railroad companies to the bargaining table, where it would not consider negotiating today.

Yvonne in Congressman Schiff’s office said they will research the economic effects and put out some feelers in Congress. Congresswoman Chu said she would consider the legislation as well as possibly asking the Congressional Research Service to study its effects.

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