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How to Force the Telecoms to Deliver Fiber-Optic to Reservations

The Bureau of Land Management recently announced that it was undertaking an agency-wide review of railroad rights of way to determine whether utilities—mostly telecommunication companies with fiber optic lines—are unlawfully piggy-backing on railroad lines without federal approval. It’s about time.

This announcement is the result of mounting federal litigation and congressional pressure that led to a revised legal position within the Department of the Interior that piggy-backing without compensation violates the Constitution. This same scrutiny must now be applied to all BIA rights of way, and the unlawful practice of piggy-backing on Indian lands must end.

For far too long Tribes have endured the empty promises that fiber optics would bring high-speed Internet to their communities, for example, only to find that, without any compensation or federal approval, their permanent homelands were again exploited. This time it was by piggy-backing lines of communication companies that passed right through their lands without delivering any services to their communities. It may be time to reverse that practice and force those utilities to deliver services as compensation for historical trespass.

At the close of the Reagan administration in 1989, the Solicitor’s Office issued a revised opinion to the BLM on piggy-backing. The opinion, obviously a political one, declared that agency permission would no longer be required to allow utilities to piggy-back on railroad rights of way. Over time, federal courts and congressional leaders, principally Senator Diane Feinstein of California, questioned the constitutionality of that flawed position taken by Interior’s lawyers, and forced the Solicitor’s Office to revisit the 1989 revised opinion.

In 2011, lo and behold a new revised opinion was issued that declared railroad rights of way are mere easements that must be used for only railroad purposes. Under the common law, additional uses could not be made of those rights of way without approval from, and compensation to, the landowner. This led to the new BLM memorandum that was issued on August 11. The BLM is now requiring that all railroad rights of way on federal lands must be reviewed for compliance with this new and enlightened legal position.

Coincidently, in March of this year another decision of interest on railroad rights of way was made by the United States Supreme Court, called Marvin M. Brandt Revocable Trust v. U.S. In that case the Court held that once a railroad right of way is abandoned, when granted under authority of the same 1875 statute that was the subject of the Ping-Pong opinions of the Solicitor, the right of way automatically forfeits to the landowner.

The Brandt decision has put into serious question whether the Rails to Trails Program, which converted abandoned rail lines to walking trails, is even constitutional. Though that is another topic, Tribes should also re-examine whether any of their lands have been converted from rail use to public trail use without compensation. If so, that might be a continuing trespass.

The 1875 railroad right-of-way statute is almost identical to the 1899 statute for railroad rights of way across Indian lands. One difference is that the statute that now allows the BIA to issue railroad rights of way also called for Interior to issue regulations. Those regulations are now undergoing proposed revisions, and this is the time to demand that automatic forfeiture requirements under the Constitution be incorporated.

As it stands now, and as the BIA wants to continue in the proposed regulations, the agency retains discretion as to whether an abandoned right of way will be “cancelled.” According to the Supreme Court, however, that discretion is unconstitutional and abandoned rights of way are automatically forfeited to the landowner.

To the BIA’s credit, the proposed regulations would now recognize that additional uses of existing rights of way—piggy-backing—will require BIA approval. At least that is consistent with the new revised Solicitor Opinion, the recent BLM memorandum and the state of the law. We need to keep a close eye on that comment process to make sure those requirements become final. However, the automatic forfeiture requirement for abandoned rail lines is still needed in the proposed regulations to satisfy the Fifth Amendment’s prohibition against taking property without just compensation.

Dave Lundgren practices Federal Indian law from his office in Eastern Washington, and deals extensively with rights of way on Indian lands. He can be reached at LundgrenPC@gmail.com.