PROPERTY RIGHTS

Justices press government in Wyo. man's challenge to Forest Service rail trail

The Supreme Court struggled today with a Wyoming man's challenge to the Forest Service's construction of a bicycle trail across his property.

Landowner Marvin Brandt argues that the Forest Service had no right to create the trail on an abandoned railroad right of way that bisects his 83 acres about 50 miles west of Laramie.

Forest Service officials claim the government has a "reversionary interest" in the land after the railway was removed from a 200-foot-wide strip under the 1875 General Railroad Right of Way Act.

Several justices appeared receptive to Brandt's arguments. Steven Lechner of the nonprofit Mountain States Legal Foundation, representing Brandt, focused his argument on the Supreme Court's 1942 ruling in Great Northern Railway Co. v. United States.

In that case, the court considered whether railroad companies were granted the mineral rights under rights of way. The court held that they didn't have mineral rights and characterized the rights of way as easements -- meaning the government-provided right to pass over otherwise private land.

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In that case, Lechner noted, the government explicitly asked the court to consider the rights of way as easements.

Justice Elena Kagan, a member of the court's liberal wing, said the government "faces a problem" in now asking the court to reconsider that characterization.

Consequently, Kagan indicated she understood why Brandt would think he now owns the land.

"Why anybody would think they hadn't gotten the whole ball of wax is a mystery," Kagan said.

The 21-mile trail runs along part of a 66-mile right of way that was once used by the Laramie, Hahn's Peak and Pacific Railroad Co. to carry gold and coal from Laramie to the Colorado line.

Brandt and his father, who owned a saw mill on the site, used the railway to transport lumber. The family came to the area in the late 1930s and eventually acquired more than 200 acres of land scattered throughout the Medicine Bow Forest.

In 1976, they entered into the land exchange with the Forest Service, giving up those parcels for the 83 acres where Brandt now lives (Greenwire, Dec. 3, 2013).

The railway was formally abandoned in 2004, and the following year the Forest Service -- with the backing of local bicycling groups -- proposed the trail.

In 2006, the government asked a court to formally declare its ownership over the railway on Brandt's property, citing a "reversionary interest" in the property. The court sided with the government, and, when Brandt appealed, so did the Denver-based 10th U.S. Circuit Court of Appeals.

Other circuits, however, have sided with property owners in similar disputes where they claim their land was unlawfully taken without just compensation when rail trails were installed.

Most notably, the U.S. Court of Appeals for the Federal Circuit -- which has jurisdiction over all takings claims at the appellate level -- ruled against the government in a similar case in 2005.

Both conservative and liberal justices wrestled with several aspects of the case, including how many rights of way would be affected if they sided with the government. Conservationists and environmentalists strongly support rails-to-trails conservation, and they have become increasingly popular in recent years.

Justice Stephen Breyer, himself an avid bicyclist, noted that he "certainly think[s] bicycle paths are a good idea."

But he wonders whether there could be landowners who "are going to be living in their houses and all of the sudden a bicycle would ride through."

Several justices also noted that the original land "patent" the government granted to Brandt did indeed contain a clause that allowed a railroad to continue to run over the right of way and, once it was abandoned, to build a public highway on it. That would seem to suggest the government did have some reversionary interest in the property.

And Justice Sonia Sotomayor seemed to indicate she didn't see a problem with the government granting an easement to a railway and reserving the right to grant a similar easement later on the same land for a bicycle path.

"That easement is continuing to be used by the person who [originally] gave it," Sotomayor said, referring to the government.

But both Breyer and Justice Antonin Scalia took issue with the government's position that the rights of way are easements when it comes to subsurface rights, but not when it comes to surface rights.

Breyer pressed government attorney Anthony Yang for a "single example" where a court has said the rights of way can be classified in two different ways for property rights purposes.

Yang, an assistant to the solicitor general, however, maintained that Great Northern only applied to subsurface rights and that congressional language and intent show the government "resumes the full title of the land" after the railway is taken up.

Chief Justice John Roberts and Justice Anthony Kennedy, who are often the swing votes on the court, did not give much indication of how they viewed the case. Roberts did note that the government mentioned the railroad right of way in the land exchange and didn't classify it as an easement.

Property rights activists and libertarian groups such as the Cato Institute are closely watching the case because of the potentially broad scope that Breyer referenced. If the court sides with Brandt, the government would be vulnerable to hundreds of legal challenges on the issue and potentially millions of dollars in settlements.

If the court sides with the government, however, it would foreclose that possibility.

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