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Press Release

Ninth Circuit ruling for United States retains abandoned railroad right of way for public access

For Immediate Release
U.S. Attorney's Office, District of Montana

BILLNGS – A ruling by the 9th U.S. Circuit Court of Appeals in an ownership dispute of an abandoned railroad right of way near Noxon, Montana, held that the United States retained ownership under the National Trails System Improvement Act,  Acting U.S. Attorney Leif M. Johnson said today.

In an opinion issued on June 21, the Ninth Circuit ruled for the United States on a plaintiff’s appeal from the U.S. District Court for the District of Montana in a case before U.S. District Judge Dana L. Christensen.

"This is an important decision for people who live in and visit Montana.  The public has a growing interest in using these abandoned rights-of-way for recreation and access to Montana waterways and public lands.  The court’s decision in this case strikes an appropriate balance between interests of the adjacent landowners and the public as intended by Congress when it passed the National Trail System Improvement Act in 1988,” Acting U.S. Attorney Johnson said.

At issue was whether the United States maintained its reversionary interest over real property granted 150 years ago to a railroad for use as a right of way, or whether that interest was later ceded to settlers who owned adjoining property. The Estate of Glowdena Finnigan sued the U.S. Forest Service in 2018 to quiet title to a former railroad right-of-way segment near Noxon, Montana. The dispute involved whether the current ownership of the abandoned right of way was controlled by the Abandoned Railroad Right of Way Act, enacted in 1922, which transferred title to the adjacent land owners, or by the Trails Act, enacted in 1988, under which the United States retained its interest in the land.

Here, the Estate sought to quiet title to a right-of-way that the Northern Pacific Railroad Company stopped using in about 1958, but that was never declared to be abandoned any time before the enactment of the Trails Act. The Estate claimed it acquired reversionary rights in the right-of-way simply by virtue of the physical abandonment of the railroad right-of-way in 1958, even though the abandonment was never confirmed by Congress or a judicial decree. The U.S. Forest Service objected that – in lieu of prior judicial confirmation – title to such lands remained with the United States under the Trails Act.  Because the lands are entirely within the Kanisku National Forest, the agency maintained they should be retained for potential recreational use by the public.

In its opinion, the Ninth Circuit held that physical abandonment alone does not suffice.  In order to acquire an abandoned railroad right of way, an adjoining landowner must establish both physical abandonment and confirmation of such abandonment by Congress or a judicial decree before the 1988 enactment of the Trails Act. Because abandonment of the railroad right of way across the Finnigan parcel was not judicially confirmed, ownership reverted to the United States under the Trails Act.

Assistant U.S. Attorney Mark Steger Smith argued the case.

9th Circuit Court PACER Case No. 19-35922.pdf (



Clair Howard
Public Affairs Officer

Updated June 22, 2021