PROPERTY RIGHTS:

Supreme Court rules against Forest Service in 'blow to rail-trail efforts'

The Supreme Court sided today with a Wyoming landowner who challenged the Forest Service's construction of a bicycle trail on an abandoned railway that slices through his property.

By an 8-1 vote, the justices held in Marvin Brandt Revocable Trust v. United States that the government had no right to Brandt's Fox Park tract once the railroad formally abandoned the property around 2004. The decision reverses a lower federal appellate court ruling in favor of the Forest Service.

Chief Justice John Roberts, writing for the majority, classified the railroad right of way as an easement that reverted back to Brandt when the railroad pulled up its ties.

The government, Roberts wrote, lost because of its arguments in a previous Supreme Court case -- 1942's Great Northern Railway Co. v. United States. That case centered on whether railroads were given rights to subsurface minerals when the government granted a right of way.

The government won in that case by arguing that railroads didn't get mineral rights and classified rights of way as easements, meaning a temporary right to cross the land.

The court "cannot overlook the irony," Roberts said, of the government now basing its arguments on other Supreme Court cases.

"The government loses that argument today, in large part because it won when it argued the opposite before this court more than 70 years ago," he wrote.

"Those basic common law principles resolve this case. When the Wyoming and Colorado Railroad abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated. Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel."

Brandt's father, Melvin, came to Fox Park in 1939 to work at a sawmill there. He later bought the business and several parcels in the Medicine Bow Forest, about 50 miles west of Laramie.

Brandt inherited the business and ran the sawmill until it closed in 1976. The same year, he entered into a land exchange with the government, trading about 200 acres scattered throughout the forest for about 83 in Fox Park.

The parcel contained part of a right of way for a 66-mile railroad operated by the Laramie, Hahn's Peak and Pacific Railroad. When the rail was abandoned in 2004, Brandt assumed he owned the rights to all his property.

But in 2005, the Forest Service proposed a bicycle trail along the right of way, claiming a "reversionary interest" in the land. The following year it successfully asked a court to declare its ownership over the property (Greenwire, Dec. 3, 2013).

Roberts rejected that argument today.

"The United States did not reserve to itself any interest in the right of way in that patent," Roberts said. "Under Great Northern, the railroad thus had an easement in its right of way over the land owned by the Brandts."

In an interview, Brandt said today "both my wife and I have been in tears" since getting news of the ruling.

"This has been a battle that I never thought I'd be in," he said. "It was always our assumption that if the railroad ever left, it would revert to us."

Reactions

The ruling is a broad victory for property rights activists. There have been many lawsuits filed challenging so-called rail trails under the Constitution's takings clause, which states that no property may be taken without just compensation.

William Perry Pendley of the Mountain States Legal Foundation, which represented Brandt, said the ruling could affect "millions of people" who "could benefit from a ruling that the federal government retains an interest and then can later come in and seize."

Others noted that Roberts came down particularly hard on the government for a "stark change in position" from the Great Northern case.

"The chief may have taken this opinion to send a message to the [solicitor general] that it should not be making arguments that depend on a complete about-face from prior arguments that have formed the basis for long-standing precedent," said Tim Bishop of Mayer Brown, a Supreme Court industry advocate who's not involved in the Brandt case. "Someone at [the Department of Justice] should have stood up to [the Bureau of Land Management] and Interior and explained that there was no plausible basis for arguing that the right of way was more than an easement."

Supporters of rail-trails programs argued that the government had always maintained some interest in the rights of way.

They'll likely take some consolation in Justice Sonia Sotomayor's dissent, which argues that the majority's reliance on Great Northern is flawed.

Sotomayor contends that case focused only on subsurface mineral rights.

"Since 1903, this Court has held that rights of way were granted to railroads with an implied possibility of reverter to the United States," Sotomayor wrote. "Regardless of whether these rights of way are labeled 'easements' or 'fees,' nothing in Great Northern overruled that conclusion."

Danaya Wright, a property rights professor at the University of Florida Levin College of Law, called the ruling a "snap decision" that didn't fully grapple with all the facets of the case.

"I don't think they have at all scratched beneath the surface to understand the legal issues," she said.

Wright added that she is "very disappointed" that the court did not talk about the takings aspects of the case, noting that the ruling will likely lead to a significant uptick in property rights owners challenging rail trails.

She estimates that potentially a third of the country's 270,000 miles of rail lies on rights of way granted under the law at issue in the case. Trails or highways built on that land are now susceptible to legal challenges, potentially putting the government on the hook for millions of dollars in settlements.

"The ruling really struck a blow to rail-trail efforts," she said.

Click here to read the opinion.

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