Property Rights, Rail Trails and Highways

This week, the Supreme Court heard oral arguments in a case that is relevant to the future of rail trails and railbanking. As RTC put it

The case of Marvin M. Brandt Revocable Trust et al., v. United States, challenges the right of the United States to convert a federally-granted right-of-way into a rail-trail, a right established by Congress and long fought for and protected by Rails-to-Trails Conservancy.

The Brandt property lies along the corridor of theMedicine Bow Rail Trail in Wyoming, a former disused rail corridor inside Medicine Bow National Forest that was converted into a public trail by the U.S. Forest Service and local supporters.

The Mountain States Legal Foundation, the Cato Institute and the Pacific Legal Foundation are supporting the Brandts' effort to sue the United States to bring the public corridor into private ownership and prevent its reuse as a publicly accessible rail-trail. All three organizations have a history of launching legal action to reduce protection of public lands.

A loss in the Supreme Court would not only block the completion of the Medicine Bow Rail Trail, but could also threaten existing rail-trails across America that utilize federally-granted rights-of-way.

And you can read their recap as well as their amicus brief if you'd like to know more. 

I'm not a lawyer, and there are likely tens of millions of Americans who know more than me about this, but I did grill my wife - who does some property law - on the difference between easements and fee simple, read the transcript and stayed in a Holiday Inn Express last night, all of which means I know enough to know that Ron Arnold at the Washington Times is not one of those tens of millions of Americans I mentioned. His article entitled "Supreme Court to Decide if bicycle trails trump property rights" misses the whole point of the case.

First of all,  THIS case is specifically about a rail-to-trail conversion, but the argument is not. Something the government points out several times. 

Mr. Yang: this is not a Rails-to-Trails Act case

That's because the law in question allows the federal government to convert old rail right-of-ways into trails or highways. In fact originally the law allowed for highway conversion (starting in 1922, when rails were being abandoned and more roads, not coincidentally, were being built). It was only later, in 1988, that trails were added as another option, but roads were the original exception. And in many places they have done that. I-66 in Virginia is an old rail right-of-way as is MLK Highway in Maryland. Now whether those two highways were built on right-of-ways or land that was bought and owned by the state or limited fee land or easements, I don't know, but other roads and highways have been, and that's a pretty important point which I'll mention later. 

Second of all this isn't about property rights, it's about who owns the rights to the property in the first place. You can't lose the rights to land that you don't have. 

Arnold starts his trip to crazy town by ignoring the 1875 law (and the 1922 one) that originally claimed that Brandt didn't own the right-of-way to that land (which his father acquired in 1976). Trail activists didn't create this change in rights, they just used it to create trails instead of roads. 

The “rails-to-trails” movement plaguing Brandt goes back to the 1990s, when leftist foundations such as Surdna (timber heirs), HKH (a mining heir), and Joyce (President Obama was a board member) realized they could push their climate-related no-motorized-transportation agenda nationwide – rural and urban – by creating and funding bicycle activist groups.

The idea was to convert abandoned railroad rights-of-way on private land, then proliferating everywhere, into “corridors of linear parks.” The resulting “linear parks” have brought thousands of claims from Americans like Brandt who demand that the government give back their stolen land – or pay for it.

Whether or not the "land is stolen" is what the court will decide (though I think we call it a "taking"). Though technically we know that it was not. Brandt still owns the mineral rights to the land, for example, it is only the surface rights that the government is claiming. 

Brandt was up against a sizeable dark network that may now be ripe for disruption and dismantling, depending on the outcome of the case of Marvin M. Brandt Revocable Trust v. United States.

Wow, never heard RTC and its affiliates described as a "Dark Network". My reading of the X Files is that Dark Networks usually don't have magazines and blogs, but perhaps I'm wrong.

Arnold then goes on to only talk to only one-side of the case and make this over-the-top statement

What's at stake? Pendley explained that if the federal government prevails, there will be no protection for property owners against agencies taking their lands “by implication, that is, by stealth.”

MSLF President William Perry Pendley predicts a 7-2 win for Brandt, and like him I'll note that trying to predict Supreme Court decisions is a fool's errand, but I think the government is likely to prevail. 

Here's how I read it. Until 1871, the government definitely had a reversionary interest (meaning it went to them when abandoned) in the railroad right-of-way - everyone agrees with that. But then in 1875, Congress passed a law giving the land to adjacent landowners to encourage homesteading. 

Then in 1942, in Great Northern Railroad vs. the United States the Supreme Court decided that that the railroads did not own the land's mineral rights. In that ruling, they compare the railroad's ownership to an easement. If the railroad only has a railroad easement, then when it's abandoned, there is nothing that can revert to the government. But if the railroad owns something else, then that can revert to the government and they can then do with that what they like - like build a rail trail. This is kind of the point that everyone is arguing about. Are these easement or are they not, and Brandt's case is built almost entirely on what Great Northern says about it. At times Great Northern says that it was an easement and at others that it was the nature of an easement. The government argues that it is neither an easement or a fee, but rather a right'-of-way "a special statutory term which has accumulated meaning over time, particularly, in the railroad context." At times it is like and easement and at times like a fee they argue "it was a fact that the right-of-way has some of the attributes of a fee, and those included exclusive and perpetual occupation and remedies."

Later in 1922, Congress said that these right-of-ways, once abandoned could be turned into roads (which means that they didn't think that these were easements) and in 1988 that they could also be turned into trails (again, not easements). But Scalia, who most aggressively sided with Brandt, doesn't care what later Congresses thought, "We don't interpret statutes on the basis of what later Congresses think they meant." he says.

The government points to a couple of other court cases and laws and says that the show "that whenever there is a forfeit, the United States' interest reverts first to roads and then to municipalities, and if there was anything left it would go to a land owner" and that this was unquestioned for 60 years. 

Anyway, it seems like Scalia will side with Brandt (when it is pointed out that both the Dept. of Interior and Agriculture agree that the surface rights will revert to the government he says  sarcastically "both of them want more federal lands, that's surprising, right?" It seems like Kagan, Sotomayor and Ginsburg, at least, will side with the government.  Alito and Roberts are hard to read.  Kennedy looks to be leaning for Brandt. Breyer is leaning government. 

The main reason that I think the court will decide for the government is that to do otherwise would really upset the apple cart. Many justices want to know how many miles of right-of-way are in question and only Brandt's lawyer gives an answer "thousands", but they seem legitimately worried that changing the current intrepretation of this law would lead to thousands of takings cases - people suing the government for property that was taken from them for a road or trail or municipality. Scalia argues that it wouldn't be that many due to adverse possession which shows that he wants to diminish the risk. Breyer is especially concerned "what actually happened matters. And the amounts [of money] matter, at least to me."

So, changing the interpretation of the law could lead to thousands of cases and billions of dollars litigated, which is something several of them seem uncomfortable with. [Thus, ironically, it may be roads that have been built on these right-of-ways that save the rail trail movement.] And the government has given them a nice little way out that allows for the status quo and a narrow decision - namely that the 1875 law creates a special case in property law, a railroad right-of-way, that is like an easement for mineral rights and like a fee for surface rights (which revert to the government upon abandonment). It wouldn't change much, would not carry over to other areas and would not be sweeping. The alternative sets up a massive expenditure by governments, who for decades thought they were acting within the law, and a windfall for people who probably never thought they owned the land anyway - all to be litigated for years and years. Prior case law is ambiguous enough that only Scalia seems convinced one way or the other. So, I suspect the Court will take the lifeline the government is throwing them and use it to wrap this up cleanly.

I might turn out to be very wrong, but not as wrong as Arnold. 

Comments

[Early Man]

The question the Washington Times should be asking--do bike trails piss you off more than toll roads? I think the only thing that can make I-66 a more pleasurable driving experience is toll booths to pay rent for the land that was taken by stealth. We know how much Tea Partiers like paying for the true cost of their driving.

[washcycle]

They would not pay rent. They could just buy it using eminent domain. But it would cost a lot of money. I guess it would just come out of the extra transportation dollars we all have.

[Crickey7]

I predict the suit gets tossed. The result would be extremely disruptive of well-established programs.

The claim that land has been "stolen" is curious. There is a property right at stake--the reversionary interest in the land. But that's a contingent interest. The owner of that interest never possessed the land, and their right never comes into effect until certain conditions have been satisfied. Others may have superior rights, as indeed the Unites States arguably has here.

It's in no sense "stealing", it is at worst ensuring the failure of a condition to ownership that was never guaranteed.

[Kolohe]

"First of all, THIS case is specifically about a rail-to-trail conversion, but the argument is not. Something the government points out several times."
Well, you could have fooled me, with that RTC excerpt.

"Wow, never heard RTC and its affiliates described as a "Dark Network". "

But of course, the RYC slagging Cato as people as part of network who want to "reduce protection of public lands" is perfectly okay.

"Breyer is especially concerned "what actually happened matters. And the amounts [of money] matter, at least to me.""

And there you have it. Money talks, even to liberals - nobody actual gives a darn about principles, much less rights.

Though I could see this court going 5-4 against the government, as Kennedy is still the deciding vote and could easily take the flip side of his Kelo argument (as these are different circumstances and a different underlying issue)

(and the ultimate irony is that modern progressives are now entirely in favor of the shady land deals that gave huge concessions to politically connected railroad barons. )

[washcycle]

Kolohe, you must be easily fooled.

Labelling one group as wanting to do something that arguably they want to do is very different from a pejorative like "Dark Network". You may disagree with the RTC critique of Cato, but it's more defensible than "dark network".

People do care about rights, but Breyer is looking at being a bit pragmatic. I think the court has a long and noble history of pragmatism.

I don't think this is all a sign that liberals are "in favor" of the land deals that gave land to the railroads. It shows that liberals are in favor of an interpretation that the government gave them surface rights to the land as opposed to an easement. That doesn't require any judgement on the wisdom of the giving. In fact, not all of these ROWs were given away.

[Jack]

My crazy alarm goes off whenever I hear certain snippets -
"The rails-to-trails movement plaguing ... goes back to ... leftist foundations ... President Obama was a board member ... realized they could push their climate-related no-motorized-transportation agenda ... creating and funding bicycle activist groups ..."

It's hard to even take someone seriously when they write that kind of stuff.