I love to walk but because of health reasons I don’t walk that much in the woods anymore. I loved hiking and when I was in my 20s I used to do a lot of backpacking, one weekend I walked 25 miles with a 65 lb pack. But now I limited to walking about 2 miles on the level, hill just wipe me out. So when I see something like this it gets my blood boiling.
Rails-to-Trails Conservancy to defend rail-trails in the Supreme Court: Wyoming landowner threatens public ownership of rail corridorsThe case has worked its way through the courts and will be heard by the Supreme Court next month.
At issue in Marvin S. Brandt Revocable Trust et al., v. United States is whether the American people retain a reversionary interest in railroad rights-of-way that were created by the General Railroad Right-of-Way Act of 1875, after railroad activity has ceased on the corridor. It is only the second time that a rail-trail case has been heard by the nation's highest court.
The corridor in this case passes through a segment of land surrounded by Medicine Bow National Forest in Wyoming that the U.S. Forest Service patented to the Brandt family in 1976. Bisecting that parcel is a 200-foot wide corridor of federally-owned land that had been granted to the Laramie, Hahn's Peak and Pacific Railway company in 1908, for the purpose of constructing a railroad.
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Recognizing the great importance of providing public access to the nation's public lands, in 2007 the U.S. Forest Service and local groups converted most of that disused corridor into the Medicine Bow Rail Trail, which has become one of the most popular rail-trails in America.
This spectacular 21-mile rail-trail, which has provided a significant boost to the state's trails tourism economy, has but one disconnection point - the Brandt property. The Mountain States Legal Foundation, the Cato Institute, and the Pacific Legal Foundation are behind the Brandt's effort to sue the United States to bring the public corridor into private ownership and prevent its reuse as a public.
The case affects more than a century of federal laws and policies protecting the public's interest in railroad corridors created through public lands - and could have lasting impacts on the future of rail-trails across the country. Just like our national parks and treasured lands to which they connect, these rail corridors are protected assets in which the public has a unique interest.And who knows what this conservative Supreme Court will rule, the court seems to be against anything federal and in favor of big business, it could easily stop the public use of the Rails-to-Trails system. Both the District Federal Court and the Appeals Court found in favor of the government and the Land Trust also filed in the Court of Federal Claims which ruled that they didn’t have standing to file a claim but that was overturned on appeal. So now the case will be heard by the Supreme Court on January 14th.
A loss before the Supreme Court would not only potentially block the public rail-trail providing access to Medicine Bow National Forest, but would also threaten rail-trails across America that utilize federally-granted rights-of-way.
Here's the problem in a nutshell. Most railroads were given the right to take land from private owners for the purpose of laying track and moving people and goods across the nation. These laws gave the former property owners the right to reclaim their interest in the rail property when or if the land is no longer used as a railroad.
ReplyDeleteThis issue would be easy to resolve with the just takings clause of the 5th amendment, where no property shall be taken by government without just compensation. Given the current value, and not potential value of the land, the government should be able to buy this land cheaply. Doing this would solve the problem. Sadly, the government doesn't do this....
The thing in this case was when the title for the public land was transferred to the Brandt (1976), the right-of-away was already in place (1908)and the land was transferred minus the right-of-way.
ReplyDeleteWhen the railroad abandoned the right-of-way, the federal government said that they still had a use for the right-of-way which was then turned over to the government(2003).
The Brandt never really had the land the land around the right-of-way was deeded to them. So the "question before the Court is whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right-of-Way Act of 1875 rights-of-way after the underlying lands were patented into private ownership."
The land was transferred to Brandt "subject to those rights for railroad purposes" granted to the original railroad. That wording arguably transfers the land, while still subjecting it to the existing easement. If it's indeed an easement. Which Brandt thought it was, and which the US thought it wasn't (but rather a limited fee, by which is meant a limited form of ownership of the land used for railroad purposes, whose ownership once the railroad formally abandons it is supposed to revert to the US).
ReplyDeleteSo it's not really accurate to say the Brandts never really had the land, the way it was patented to them. Or at least, it's not accurate because it assumes an answer to the question presented to the Court.
I'm no more lawyer than anyone here (as far as it appears to me — I only found this blog post searching for commentary on the oral argument). But I have a fair bit of hobbyist interest in the law. And I was able to arrange my schedule to be at the Supreme Court for the oral argument. In preparation I read the party briefs, and I read the Cato, PLF, and Rails to Trails briefs — a sampling of the most important ones (as far as the legal process is concerned), plus some ones for organizations with which I have some level of affinity. (Cato and PLF because I am broadly libertarian, Rails to Trails because I am a cyclist and backpacker and spend time outdoors and all else equal wouldn't mind more bike trails — assuming they can be created legally. Which was the question here. Also I wanted another counterpoint besides the US brief, to get the other side of the matter.) Given Breyer's candid admissions of fumbling to remember his property law (simultaneously amusing, understandable, and horrifying), I'm not all that sure I'm further behind in my understanding of the legal concepts at play than he was. :-)
I gave my own analysis of oral argument on Twitter if you scroll back to January 14. Long and short of it, I counted to at least five or six for Brandt's position: Scalia, Alito, Breyer, Roberts, and Kagan all expressed various amounts of skepticism at times (although of course it might have been devil's-advocate questions). (And probably Thomas, silently as usual, because I think Scalia's understandings probably resemble Thomas's here.) So I expected Brandt to win. And indeed, today, he did -- quite handily with an 8-1 decision.
This may be unfortunate as far as bike paths in the US goes, ignoring everything else. But if the only way for those bike paths to manifest is to take it from Brandt without paying him (nothing about today's decision prevents the government using eminent domain to acquire the land if they fairly pay Brandt), then shouldn't that "wrong" not be canceled out by the bike path "right"? Letting the end (bike paths) justify the means (by theft of property) is wrong. I'd hope most people would see it this way, even if the result is that there are fewer bike paths and trails for us to use.