Upping the ante on bridges is not atypical no matter the state. When the Conrail/ exPC/ ExxNYC/ exxx3I bridge across the Illinois River near DePue IL was hit by a barge in 1979 the Army Corps told them they couldn't fix it unless they put in a new bridge with better clearances. The response (by Conrail, and especially Milwaukee Road, who needed the bridge to jointly serve the J&L steel plant just on the east side of the river) was: this bridge was fine for the past 100 years until last week, so why isn't it now? But it didn't get them anywhere, and so a Chicago freight bypass is now lost (it is now NS).

UP/BNSF can bring in whole squadrons of Lawyers and Lobbyists to deal with this issue, and tie it up in court till practically everyone who was initially involved is dead of old age.

And that still doesn't fix the bridge.

They could be prosecuted in court for criminal trespass. The land under and around the bridge belongs to the United States of America, not the railroad. Now that this is public information, there's no way they'd get forgiveness from the Forest Service. Stuff like this is nothing to BNSF or UP, it's just the cost of doing business to them. Their scads of attorneys deal with stuff like this well in advance of any big projects. What the USFS does to the D&S is essentially irrelevant to the big carriers.

I'm pretty sure that the RR owns the right of way. The National Forest did not exist when the D&RGW built the line and it certainly would have been standard practice to have a deed for the right of way. If the D&S purchased the railroad, including the ROW from the D&RG then the Forest service can't demand anything. It would certainly be prudent for the railroad to rebuild the bridge to modern standards of strength and clearance, but the Forest Service should not have to approve anything. Did the Cumbers & Toltec have to get permission from the Forest Service to replace the Lobato Trestle after it burned?

ROW only includes the bridge and land, not the creek. They can fix the bridge as long as they do not affect the flow of the water. As the USFS is involved, it is most likely that the stream bed is federal land. Property rights can get very complicated when streams and rivers get involved.

I believe, that in this case, the railroad owns, outright, the land that they operate on (not an easement or by permit) through the national forest at this location.

The bridge in question is not the issue, but the ROW that was washed out north of the bridge, due to the debris plugging the waterway under the bridge. From my understanding, the debris has been removed. The railroad would now like to repair their ROW and track north of the bridge.

I also own land that borders the National Forest, along with many neighbors. I have never requested or have been told by the forest service that I have to get their permission to do maintenance, repairs and fire mitigation on my own property.

I fail to see the difference here.

MD Ramsey

The railroad opened in 1882, therefore the ROW is subject to the General Railroad Right-of-Way Act of 1875. The Act grants railroads "easements for railroad purposes", not fee simple title to the land beneath.

The relationship of the easement to the underlying property is outlined in this 2013 case.

In this case, the underlying property owner is the United States. The railroad can sell its easement to another railroad "for railroad purposes" but if the railroad is abandoned then the easement vanishes.

Whether the timber harvesting was beyond what was needed for railroad purposes is a good question.

It is my understanding that this was not a land grant, but outright purchase of the land by the DRG. No easement, outright ownership.

I guess we will all find out once the dust clears and the lawyers have their day in court.

MDR

That is exactly what the DRGW did to the EPA after the Thistle landslide. The EPA wanted an environmental study done that could take several years. Before the chance to even file an environmental study had happened... the DRGW had already drilled two tunnels through the mountain and rebuilt their mainline.

Mind you, the DSNG does not have the same fiscal resources the DRGW would have had in its prime, and it is probably cheaper for the DSNG to play ball with the Forest Service than it would be to do a "sucks for you we already built the bridge!" move. I am sure they don't want a second lawsuit with the Forest Service.

I don't know why all these people are wanting the D&SNG to break the law when it comes to land that we, the citizens of the United States, own.

Because it's federal overreach. The USFS is largely out of control, this is just the tip of the iceberg.

CD

I think I'll wait for the facts to come in before formulating an opinion.

This is the internet in the year 2020. That's no longer allowed, obviously.

Mike, I suspect that the difference is that that the Clean Water Act probably applies to the D&SNG's repair work.

Photos posted by the Durango Herald newspaper appear to show that the repairs will require working within the stream and placing fill on wetland. That scope of work -- working in the stream and placing fill on wetland -- usually requires permits from the Army Corps of Engineers under sections 402 and 404 of the Clean Water Act.
I don't think it is overreach. The Forest Service is supposed to enforce applicable laws and regulations which effect the National Forest System -- that is their job!
Indeed. Here's an article from the June 21, 2020 Durango Herald describing how the Forest Service issued a cease and desist order because 200 feet of road base had been laid without proper permits: Forest Service stops unauthorized road building northeast of Durango
The photo attached to the article appears to show road fill placed in a stream.
There are mechanisms for that scenario -- the Class-Is may have nationwide permits from the Corp, for example.IMHO, that would be dumb, really dumb.