As I walked out of the Supreme Court on Tuesday, the only thing I was certain of was how much was uncertain.
The case of Marvin M. Brandt Revocable Trust et al., v. United States is likely to have lasting implications for the development of rail-trails on federally-granted rights-of-way, but as we await a decision from the highest court in the land, a prediction about the court's direction is as hard to offer now as before.
Few justices clearly signaled their intentions or leanings, instead peppering both sides with questions designed to probe potential weaknesses in their case.
Though a rail-trail is at the heart of the dispute (for those who haven't been following the case, here's the background), the legal debate is a broader matter of property law. Tuesday's oral arguments very much reflected conflicting notions about how to apply various acts of Congress and Supreme Court precedents dating back to the 1870s.
One notable occurrence on Tuesday was the justices' frustration with the absence of hard data on how many miles of federally-granted rights-of-way there in fact are in the United States.
This was not the result of insufficient research on behalf of the lawyers, but rather that the mapping and record keeping of these land transactions in the 19th and early 20th century were not unified or coordinated. There exists no national map or database of federally-granted rights-of-way. What Rails-to-Trails Conservancy has managed to piece together comes from our own interactions with trail and land managers over the years. Unfortunately, that does not lend itself to the production of an authoritative national number.
We do know, however, that a number of America's most famous rail-trails have sections on federally-granted rights-of-way, including the George S. Mickelson Trail in South Dakota, the John Wayne Pioneer trails in Washington, and the Weiser River Trail in Idaho. But it is important to note that it is not just rail-trails that are impacted. Federally-granted rights-of-way were also converted into public roads and highways, and so any Supreme Court decision that makes less certain the authority of the United States government to make these corridors available for transportation could have far-reaching implications.
It is clear that the justices wish to better understand who might be affected by their ruling, and to what degree, but it is hard to decipher whether they would find a broad impact to be unsettling or attractive. They may not be in accord with each other on this one.
The attention-grabbing quip of Justice Stephen Breyer offered an insight into just how uncertain the justices are as to the precedent this case may set.
"For all I know, there is some right-of-way that goes through people's houses, you know, and all of a sudden, they are going to be living in their house and suddenly a bicycle will run through it," Breyer said.
While Breyer's hypothetical is as unlikely as it is entertaining, it does demonstrate that there is fear at either end of the spectrum about what this decision will mean.
We believe that a win for the United States in this case, affirming the reversionary interest of the American people in federally-granted rights-of-way after the cessation of rail activity, would essentially maintain the status quo. Building rail-trails would be just as challenging as it has always been, but a decision in favor of the United States would at least provide a level of certainty for land managers and trail builders.
Should the United States lose, we believe that any trails consisting of federally-granted rights-of-way that have been formally railbanked will remain protected. However, non-railbanked corridors may be vulnerable to legal challenges.
A reinterpretation of the law concerning federally-granted rights-of-way would possibly mean the United States would be liable to compensate to some landowners, perhaps encouraging more tax-payer funded litigation in the future.
Responding to Breyer's "Tour de Living Room" vision, Assistant to the Solicitor General, Anthony Yang, noted that for much of the past century no landowner had expressed a grievance against public use of federally-granted rights-of-way.
Now we wait. To those of you who supported our legal efforts to make sure the interests of rail-trail users were represented in this case, I thank you. Your contribution allowed us to speak up on behalf on rail-trails in a way that would not have been possible otherwise.
A decision is expected in June, though it is possible it could be handed down well before then. Rest assured, Rails-to-Trails Conservancy will keep you apprised of any developments.
Are you aware of the campaign to get old local roads reestablished as rights of way? e.g. disused dirt roads in states like Vermont, which may now have houses that were built on them...
Not federal but same issue.
Based on the court's decision we could be sunk...
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