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In an unprecedented move this week, the Federal Bureau of Land Management released a heavily burdensome administrative determination requiring extraordinary environmental review of ancillary railroad right of way uses that had previously been noncontroversial.
For nearly 150 years railroads have held granted easements across federal lands under the General Right-of-Way Act of 1875. These right of way easements include up to 100 feet of easement on each side of a the central rail line that have been used by the railroad and for most of the last 150 years, railroads have in turn granted access for other ancillary uses along these significant ROW’s including pipelines for oil, natural gas and water transmission along with more modern technology including fiber optic lines and telecommunications.
The railroad ROW’s have always been considered an unobtrusive method of creating a less impactful infrastructure corridors and providing access for needed utilities across otherwise pristine areas of open space. The consolidation of uses in an existing railroad easement is the preferred environmental option versus easement requests sprawled across the Western United States where most federal land exists.
The BLM administrative determination was made in the matter of the Cadiz Water Project, a water conservation and transmission project that includes a 43 mile pipeline previously authorized by the Arizona and California Railroad (ARZC) on the railroads existing 1875 Act easement. As part of the agreement, Cadiz would provide ARZC water along the rail line for fire suppression, fiber optics facilities for communications purposes, generate hydro-electric power exclusively for the railroad and water for a steam powered touring train to be operated by the railroad.
In a 2011 opinion from the Office of the Solicitor of the United States Department of Interior providing guidance to the BLM, the Solicitor states that “railroads have the right to undertake a range of activities within their ROW’s, including commercial activities, so long as the activity derives from or furthers [at least in part] a railroad purpose.” The Solicitor concluded that a railroad could not grant third party’s rights where the actions “bear no relationship to the construction and operation of the railroad”.
The Oct 2nd BLM decision has changed course from the Solicitor’s Opinion and concluded that the “project does not derive from or further a railroad purpose” even though the project clearly provides for railroad service and bears a relationship to the operation of the railroad. In the administrative determination, BLM expands upon the 2011 Solicitor’s opinion by concluding that the “origin of the activity itself is a non-railroad use.”
This statement is found nowhere in the Solicitor’s opinion according to Cadiz Inc. President Scott Slater, who in a response to BLM stated that the “issue is not whether a commercial activity like the conveyance of water for public consumption is a railroad purpose, but whether it furthers a railroad purpose,” and that the “origin” of the activity under review is expressly rejected by the Solicitor’s opinion.
The BLM determination calls into question thousands of miles of existing and future ROW easements that crisscross the Western United States. If the “origin” of the underlying use must be a railroad purpose then thousands of miles of pipeline and other facilities owned and operated by energy infrastructure companies such as Kinder Morgan could be jeopardized. Kinder Morgan operates pipelines in miles of Union Pacific ROW. Even fiber optic cables expressly approved by the Solicitor’s opinion cannot comply with BLM’s test because they originate from private commercial purposes, not railroad purposes.
If the decision stands, it appears it would require all projects now determined to be “non-railroad uses” to individually and separately apply for National Environmental Policy Act clearance, a process that can take up to 5 years and is under the discretion of the BLM. It will also cloud title and make financing of infrastructure projects much more difficult.
The new BLM determination potentially encompasses billions of dollars in current and future infrastructure activities. With the significant land holdings under the jurisdiction of the BLM across Arizona, California, Nevada, Utah and other western states, the impact of the BLM determination could be significant on local and state economies, which require the movement of utilities and communications services across vast areas of federal land.
If the BLM decision stands, the other question is how environmental organizations might use it to challenge existing ROW uses and future infrastructure development that could be considered “growth inducing.”
Both Union Pacific and Burlington Northern Santa Fe Railroads were contacted for this article. Union Pacific stated that they were still reviewing BLM’s administrative determination and its possible impact. Comments from BNSF were not available at deadline.
