	Introduction

Pressure is building for passenger train use of freight railroad rights of way. Amtrak, the federally owned rail passenger operator, has eminent domain power over freight railroad facilities and can appeal to a federal adjudicator, the Surface Transportation Board (STB), to determine the terms of its access to freight railroad track. As passenger operators other than Amtrak have no statutory leverage when negotiating with freight railroads, they have little control over the price of access and may have no recourse if freight railroads reject their proposals. The tension between commuter and freight use of track was highlighted during mark-up of the Passenger Rail Investment and Improvement Act of 2008 ( P.L. 110-432 ). During House committee mark-up, a provision (§401) to require binding arbitration when commuter rail authorities and freight railroads fail to reach agreement over access proved controversial. The committee chose instead to require non-binding arbitration, leaving the possibility that the public authority might be unable to implement a proposed commuter-rail project. In the 112 th Congress, the Senate-passed version of surface transportation reauthorization legislation ( S. 1813 ) calls for the U.S. Department of Transportation to evaluate the best means to enhance intercity passenger service in shared-use rail corridors and to survey processes for resolving disputes over passenger access. Some Members of Congress have urged greater reliance on private companies to provide intercity rail services similar to those offered by Amtrak, but such private services may be difficult to develop so long as potential operators lack Amtrak's statutory right to compel freight railroads to allow passenger trains to use their tracks. Freight railroads can be expected to object to such initiatives as unfair "takings" of their private property. The freight railroad's requirements would severely curtail passenger rail operations. Railroads: Public Purposes but Private Property

Mandating passenger-train access to freight rights of way raises old but recurring arguments about the fundamental nature of privately owned railroads. A long line of court decisions holds that while railroads are not charities, neither are they completely like other businesses that are free to operate solely for profit maximization. In other words, while railroad rights of way are private property, there is substantial case law that has infused them with a public interest or a public duty component. In their charters, the government often gave railroads eminent domain power. These cases are important to present-day concerns about public access to freight railroad rights of way because eventually they established three important principles:
the public does have a right to some amount of control over rights of way; this public control is vested predominantly in the federal government, not the states, because railroads are intrinsically an inter state means of commerce; this control does not give the public the right to confiscate. Given the increasing demands on urban rail corridors, Congress may wish to consider alternatives for managing them. Thus, the fundamental issue is whether freight railroads and prospective passenger rail authorities should negotiate over the price of railroad property just as any private parties would or whether an independent, but governmental, third party, such as the STB, should have some role in determining the terms of sale. Given that a public service obligation is still attached to railroads, albeit largely lifted with respect to passenger service, do freight railroads have the right to solely set the price for passenger access or should the public's convenience and necessity be given some consideration? Creating track access rights for potential private operators of rail service may be a particularly thorny issue.
Pressure is building for greater passenger use of freight railroad rights of way. Freight railroad rights of way are owned by private, for-profit corporations, and the routes potentially most useful for passenger service are typically the busiest with freight traffic. In many cases, states or commuter rail authorities have reached agreement with freight railroads to share either their track or right of way. However, unlike Amtrak, which has eminent domain power over freight facilities and can appeal to a federal agency to determine the terms of its access to freight track, other would-be passenger rail operators do not have any statutory leverage when negotiating with freight railroads. This likely increases the price public authorities pay for access and leaves them with no apparent recourse when freight railroads reject their offers.
During House committee mark-up of the Passenger Rail Investment and Improvement Act of 2008 (P.L. 110-432), a provision to require binding arbitration when commuter rail authorities and freight railroads fail to reach agreement over access proved controversial. The committee chose instead to require non-binding arbitration. Some Members of Congress have urged greater reliance on private companies to provide intercity rail services similar to those offered by Amtrak, but such private services may be difficult to develop so long as potential operators lack Amtrak's statutory right to compel freight railroads to carry passenger trains. Freight railroads can be expected to object to such initiatives as unfair "takings" of their private property. In the 112th Congress, the version of surface transportation legislation passed by the Senate (S. 1813) calls for a federal study to evaluate passenger service in shared-use rail corridors and to survey processes for resolving disputes over passenger access.
Passenger access to freight railroad track raises old but recurring questions about the fundamental nature of railroad rights of way. Railroads are not like other businesses that are free to decide how and where they allocate resources solely on the principle of maximizing shareholder returns. While railroad rights of way are private property, more than a century of case law has upheld a public duty on them. The public nature of railroads is evident from the fact that they were designated as "common carriers," granted eminent domain power, and regulated by government. However, the private interest of railroads is protected by the limitation that the government's right to regulate does not mean the right to confiscate. Railroad rights of way, unlike highways, were not considered part of the "public domain." When competition from other modes eroded passenger rail travel, it was confirmed that the public duty attached to railroads could obligate them to operate some trains at a loss, provided the railroad's overall operations were profitable.
The issue for Congress is whether freight railroads and prospective passenger rail authorities should negotiate over the terms of use of railroad property just as any private parties would or if a governmental third party, such as the federal Surface Transportation Board (STB), should have some role in determining the terms. Given that a public service obligation is still attached to railroads, albeit largely lifted with respect to passenger service, do freight railroads have the right to set the price for passenger access unilaterally, or should the public's convenience and necessity be given some consideration? Granting track access rights to potential private operators of passenger service could be a particularly thorny issue. Given the increasing demands on urban rail corridors, Congress might examine alternative methods for managing them. A public "rail port authority" might have some advantages over private railroads in optimizing an urban rail network.