Rails To Trails Conservancy
Better Business Bureau Accredited Charity
shop   |   eNews   |   find a trail
Share this page:
The Supreme Court Decision: How Does It Affect Rail-Trails?

On March 10, 2014, the U.S. Supreme Court handed down a decision in the case involving a rail corridor formerly on federal land that is now privately owned (Marvin M. Brandt Revocable Trust et al. v. United States).

The U.S. Supreme Court decision was undoubtedly disappointing for supporters of rail-trails. But after examining the Court’s decision, it is clear that its reach is much narrower than has been reported in the press. 

The main questions on your mind may be: Does this decision mean that my rail-trail or trail project will go away? What effect will this decision have on the broader rail-trail movement? 

To answer the first question, the vast majority of current and planned rail-trails will not be affected. 

The ruling does not affect trails that have been “railbanked” (the federal process of preserving former railway corridors for potential future railway service by converting them to multi-use trails in the interim). Potentially affected corridors are predominantly west of the Mississippi and were originally acquired by railroads after 1875 through federal land to aid in westward expansion. 

Existing rail-trails or trail projects ARE NOT affected by this decision if ANY of the following conditions are met:

  1. The rail corridor is “railbanked.” 
  2. The rail corridor was originally acquired by the railroad by a federally granted right-of-way (FGROW) through federal lands before 1875. 
  3. The railroad originally acquired the corridor from a private land owner. 
  4. The trail manager owns the land adjacent to the rail corridor.
  5. The trail manager owns full title (fee simple) to the corridor.
  6. The railroad corridor falls within the original 13 colonies. 

If your rail-trail or trail project meets any of the conditions above, it is NOT affected by the U.S. Supreme Court decision. 

If you have questions about a specific trail, please contact the manager of that trail, or contact us at railtrails@railstotrails.org.

Despite the decision, the rail-trail movement remains strong. But the ruling will likely invite more litigation directed at rail-trails that consist of or include federally granted rights of way.

As this case moves back to the lower courts, RTC is exploring opportunities to ensure the scope of the ruling is as narrow as possible. 

..................................................................

Kevin Mills is RTC’s Senior Vice President of Policy and Trail Development, and instigator of the Partnership for Active Transportation.


Posted Tue, Mar 11 2014 6:56 PM by Amy Kapp

Comments

Jeff Grover wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 7:35 PM

I'd like railstotrails.org to do a little research on the trails in their database, and come up with how many are affected

Fight for the Right to Cycle... wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 7:49 PM

First, thank you for the work you have done. My son and I have ridden trails from Florida to Wyoming, California to New York. This ruling is devastating to me, another in a long series of rulings that seem to be moving our public rights held by the citizenry to individual rights that limit the rights of the vast majority. In short, the court ruled for the few to the detriment of the many.

I hope that RTC will continue to fight against this ruling and for sane and permanent access by the people to these vital transportation and recreational corridors.

Yesterday, I gave an additional contribution to RTC so that we have resources to fight. I hope all other members will consider doing the same.

Jana wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 7:50 PM

Your post assumes that the reader has some idea of what you're talking about. Start with a quick sentence reviewing what the court decision was. Then tell us what it doesn't affect.

Joyanna wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 8:05 PM

Hi I'm curios if any if the trails in the Rio Linda, Del Paso Heights, or Natomas areas of the Sacramento, California are impacted?

Jim Pedgrift wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 8:43 PM

I am following your comments as carefully as I can and I am left with one obvious question. I have a good idea of what types of rail-trail projects would NOT be effected, but what type of project is the most greatly endangered by this ruling? What was most pertinent in the case ruled on by the court?  

Andrew Morris-Frieidman wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 9:32 PM

First the SCOTUS tries to destroy democracy with "Citizens United" then they turn their attention to Rail Trails. Only Sotomayor voted with us? Yikes! Was this suit funded by ALEC?They are the group that brought us the "Stand Your Ground"laws.

www.alecexposed.org/.../ALEC_Exposed

David Brickley, Dahlgren Railroad Heritage Trail wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 9:40 PM

I attended the oral arguments on this case when it was heard before the U.S.Supreme Court. Thank you for your excellent analysis of the Court's decision. Rails-trails are an important asset for all to enjoy.

Glenn I. Maze wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 11 2014 10:39 PM

Thank you for the explanation Kevin. With existing trails spared closure/disruption, I will be able complete my goal of traversing America "trails only"; between Canadaian  and Mexican borders. The Supreme Court opened a "can of worms"just the same. Justice Stephen Breyer must have bonked his head with one of his bike accidents. How else could he conclude an 1875 act and a 1942 decision was applicable today?

Drew Lieb wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 12:29 AM

@Jeff Grover, I'm sure that they will do that internally. Publicly releasing such a list would only invite more lawsuits, no?

Anthony wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 3:21 AM

Sheesh people, get a grip. A corporate conspiracy that only Sotomayor was immune to? 11:1 sounds to me like it's pretty solid law. Congress needs to fix it. For the case at hand, govt needs to pursue via eminent domain instead of (what was thought to be) an existing easement. I strongly support rails to trails, they're one of the best things our govt has done. Legal decisions based on law and only law are even more important.

Doug McLean, Lynchburg VA wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 8:14 AM

I couldn't agree more, Anthony, there needs to be a legislative response declaring the affected trails with the same protections for the sake of the 'Greater Good' (and, in this case, one that affects 'Homeland Security). As far as 'Conspiracy' goes, it's usually a corporation's lawyers trying to find loopholes in the laws that spawn this type of legal attack, and this is (without question) a back-door legal attack.

Nicolas wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 9:13 AM

This is a victory for private property rights.  An easement is not property - it is a non-possessory right of passage.  This ruling affects much more than rail-trails because easements are a very real aspect of real estate.  For the court to rule otherwise it would have affected every powerline easement - if you got a telephone pole on your property the power company has an easement over your property.  This ruling says that the power company doesn't own your land - and thats a win for you and I.

Copeland Casati wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 10:33 AM

We are huge enthusiasts of Rails-To-Trails.

However, I completely agree with Nicolas.

Melissa wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 11:59 AM

As a co founder of our own local rail trail I am so relived to read your information regarding this Supreme Count Decision that initially made me very concerned for the future of our still-being-developed-world class rail trail. Thank you for putting this article together and you can be sure I will share it widely.

tmaster wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 1:07 PM

I agree this is a good decision easements should have never been converted into trails they were granted to the railroad companies not the people. They are not "our public rights" they are private property you are crossing illegally. This ruling will require the trails to make agreements with the property owners and get permission to pass. If they can not get it then that part of the trail will have to be closed.

Eminent domain would require the gov to pay the land owners for the land which I don't see them doing.

Lets face it its over. If you want to build a trail you will now have to get permission of the land owners.

You should switch to trying to get the federal gov to make more trails on federal lands.

Boston biker wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 2:24 PM

Unfortunately for us relatively quiet bikers we will continue to be punished for noisy polluting snow machines and atvs.

Matt wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 4:07 PM

I agree with Nicolas.  Just because there was once an easement for a railroad (or any other purpose), doesn't mean the government should decide the future use of the land.  If it is valuable to have a trail through private land, the owner deserves compensation.  If they don't want to sell the land, that is their choice.  I love hiking trails and I see rails-to-trails as an excellent use of the land but not at the expense of private property rights.

Rick wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 5:34 PM

The National Association of Reversionary Property Owners seek to stop the rails-to-trails movement. This will prevent people from having a safe, raily route to work and school and exercise.

david b wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 10:23 PM

I studied the entire paper trail on this case.The ruling handed down was fair and legal. I personally thought RTC was blowing it out of proportion.

Sherri wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 12 2014 11:21 PM

I see photos of the beautiful hiking trails but the land was suppose to return to the landowner when the railroad ceased to exist. Our trail is nothing but obnoxious drunks on 4 wheelers with loud or no exhausts. They have destroyed the peace of country living and ride all hours of the day and night. I hope it closes tomorrow.

dave wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Thu, Mar 13 2014 10:03 AM

Hi David B...why are the 13 original states exempt? Thanks...I can't see to find an explanation...d

eben wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Thu, Mar 13 2014 12:19 PM

will this ruling have a large impact on the completion of the east coast bike way?Glad I live in New England.

Ken S. wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Fri, Mar 14 2014 1:39 PM

I love bike trails and use them whenever I can.  But I just read the Supreme Court decision and pages 17 and 18 of the decision appears to say that all that was ever granted to the railroad by the 1875 act was an easement. Furthermore, as the Act stated that if land was not developed for a period of five years, the railroad would lose the easement.  I am afraid that the railbanking act may fail this fresh test put in place by the court.  I smell many many lawsuits -- some to acquire land and some to claim condemnation under eminent domain.  Any thoughts?

Kristen Langley wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Fri, Mar 14 2014 1:59 PM

I've been working in a position involved with land-use regulation (engineering) for three decades, and, in the past, donated to RTC.

I 'get' the decision. It isn't 'personal' against those who ride, but, it is that pesky Fifth Amendment.

"Nor shall private property be taken for public purpose without just compensation." A "taking" includes more than just a full-meal-deal seizure (right-of-way, most often).

Is a bike trail a public good? Absolutely.

Can a property owner exclude the public from their property?

There have been court cases dating back decades that one of the hallmarks of property ownership is the right to exclude the public, and, to be compensated (financially) for the taking of that exclusionary ability.

brian g wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Sat, Mar 15 2014 1:13 AM

We have an abandoned railroad across our property and it's been a fight with the local governments for years now.  First, they said they owned the property and even had the property recorded to show themselves as the fee owners.  Then the government tried extorting us.  There was a building on the property so the government claimed to own it and they said we could pay a lease to continue using the building, but if we refused to sign a lease for the building then they would demolish it.  We did not pay a lease to use our own building and so the local government demolished the property.

Now after a few lawyers have gotten involved, the  local government finally understands that it's just an easement but has refused to remedy the building that they demolished.  Now the local government is also the trail manager and under the terms of the NITU's they are supposed to pay property taxes but they are refusing to do that and they won't abate the taxes either.  Does anybody know how to make the trail managers pay the taxes they agreed to pay?  Since the STB has the easement and just issues trail management responsibilities to local entities it makes things really complicated when there are disagreements and it's not clear about who has rights to what.  I should also say that our property is a city block in a commercial zoned part of a town.  It's not a nature trail out in the middle of nowhere.

In theory these rails to trails projects sound like a utopian dream but actually dealing with the logistics of them makes it seem more like a nightmare.  The unintended consequences have been horrible.

Steve wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Sat, Mar 15 2014 1:17 PM

For all those cheering what they claim to be a victory for private property rights, read the ruling first. In this particular case, the government granted a corridor to the railroad in 1908. The same government then gave an overlapping block of land to an individual in 1976 (with the rail line still running through it).

The problem was simply that the disposition of the land upon railroad abandonment was left ambiguous, which of course is why it made it all the way to the supreme court.

The court disentangled the ambiguity as best they could. But this is hardly an example of sensibly upholding private property rights, and to me it makes more sense to preserve the corridor that has legally been in place for 100+ years, despite the fact that it would now be used by cyclists and hikers rather than trains.

Ray wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Mon, Mar 17 2014 5:35 PM

If it was Federal Property in the first place this seems to be just a land grab by so called private Property Holders

SteveVarnum wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Mon, Mar 17 2014 7:10 PM

Thanks for the article...made me feel a little better. Power to RTC!

After reading about some of the fumbling with memory about property law by some members of SCOTUS, it is now clear to me why they don't want TV's, i.e., public scrutiny on their sessions.

Robert Opal wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Mon, Mar 17 2014 9:58 PM

Attached is a posting on the Supreme Court decision which appeard on the Trains.com website.  It suggests that the effects of the Supreme Court decison may be even more limited than stated in the RTC summary:

__________

I've read the Supreme Court opinion in the Brandt case. You can, too, at the following address (make sure you pour yourself a big cup of coffee before you start). It's actually quite interesting, not only because of the holding but because of the historical information it contains on U.S. land grant policy:

www.supremecourt.gov/.../12-1173_nlio.pdf

Naturally, the decision is being misread by many, probably because few normal people are intimately familiar with the National Trails System Act (I'll call it the "Trails Act" for short). I've been involved in a lot of Trails Act transactions (i.e., I'm definitely not "normal", as many of my acquaintences will attest), so let me make a few points about the Brandt decision:

1. The decision only affects trails created on rights of way that a railroad acquired under the 1875 Land Grant Act. And even here, it doesn't affect all such trails. It only affects those that were created after the railroad was "abandoned". As such, except for compensation (see ‘5’ below), it does NOT affect trails established under the Trails Act provision normally used for rail-trail conversions (16 USC 1247(d) for those who want to look it up).  That's because 1247(d) trail corridors are not "abandoned" for rail use (see below).

2. The Brandt decision doesn't involve a 1247(d) trail conversion. Rather, the government’s position was that the property automatically reverted to the United States after abandonment under a different provision of the Trails Act. The court rejected this argument, holding that the railroad's interest in the property was only an easement, which automatically expired upon abandonment, As such, there was nothing to revert to the U.S.

3. The outcome would have been very different had the Brandt case involved a 1247(d) trail transaction (again, this is the provision used for most Trails Act trail conversions). In this case, there would have been no "abandonment". Rather, the easement would have remained in effect for the trail. That's because, under the statue, 1247(d) trail use is not considered an "abandonment" of the ROW for rail use. Mr. Brandt, however, would not have walked away fuming and empty-handed.  Rather, he would have been entitled to compensation from the United States for the "taking" of his property (because, but for the Trails Act conversion, he would have had full ownership and use of the property).

4. The 1247(d) statutory scheme described above was upheld by the Supreme Court in a 1990 decision (Preseault v. Interstate Commerce Commission). The rationale for the 1990 decision is pretty simple.  It goes like this:  While 1247(d) may result in a “taking” of private property, the Constitution doesn't prevent the government from "taking" such property. What the Constitution does require is that the government pay compensation for any property it “takes”. Since compensation for any 1247(d) “takings” was available under another Federal statute (the Tucker Act), 1247(d) was constitutional. There’s nothing in the Brandt decision that undercuts the 1990 decision upholding 1247(d)

5. The one area where the Brandt decision might affect 1247(d) trails is compensation. The decision establishes that the underlying owner of property subject to an 1875 Act rail easement gets full ownership when the railroad is abandoned (i.e., the easement vanishes and the owner has full use of the property). That means, in the case of a 1247(d) trail established on 1875 land grant property, the underlying owners should be entitled to compensation from the United States for a "taking" . I don’t know how much property like this there is, but there could be a number of compensation cases filed against the U.S. in the wake of the Brandt case.

More than anyone probably wanted to know. Just my little weakness.

Bob O wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Mon, Mar 17 2014 10:39 PM

In response to Brian G's comment, I don't know what the fats of this specific situation are,  But 1247(d) of the Trails Act and the STB's regulations require the trail operator to take financial and management responsibility for the trail corridor.  If the the "local government" that has the trail is not doing that, have your lawyers look into the possibility of filing a petition with STB to vacate trail use for non-compliance with the Trails Act. If nothing else, it might bring the local governments to the table.

Also, if the trail operator demolished a building on property that (but for the trail) would have been yours, you may have a claim against the United States under the Tucker Act for a "taking".  Again, this is something you should have your lawyers look at.  I believe there is a 6-year time limit for filing such a claim.    

Dusty wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Tue, Mar 18 2014 12:55 PM

I have always been curious (but I guess not curious enough to do the research) about eminent domain. "Nor shall private property be taken for public purpose without just compensation."

Okay, that is clear. But I haven't found anything in the constitution that defines what is a reasonable "public purpose". However, I don't think tearing down someone's home against their will to build a mall is reasonable and I don't think taking someone's property for a recreational trail is reasonable. This is especially a problem where the 'takings' have gone into overdrive, as in the case of the Minnesota sisters who reluctantly agreed to grant easement to the county for a bike trail through land that has been in their family for a century, only to have the county decided that they wanted all the land so that they could put a park and a dock where today the owners have a little cabin and a peaceful weekend retreat. Thus, when we cyclists get all gaga over the possibility of a new trail where we can play, we should first consider whether our 'right' to that land (we really have none) supersedes the rights of those who have owned, maintained, enjoyed and paid property taxes on for any length of time. Unless you are a socialist, you should see the wisdom and value of erring on the side of INDIVIDUAL rights, not collective  rights.

Carroll Pratt wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 19 2014 12:13 AM

Please explain why this ruling does not affect the original 13 colonies.

Rick wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 19 2014 9:01 AM

I agree with Steve. This was not a case of land owned by private parties for decades with an easement for railroad use only over it. This was a much more ambiguous case, where the land had been public for ever until the private party acquired it with the easement. In retrospect, when the government transferred the land to the private party they should have said that the easement pertains to other transportation than a railroad, but that apparently had not  been standard practice, the assumption being other transportation like trails was a permissible use of the easement. My question is whether the landowners purchased this land from the government or whether they received it for free?

Travis wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 19 2014 2:50 PM

The use of land for railroad access is far different than the use as a public trail.  When the railroad was in operation the number of people "the public" that got some sort of benefit from its operation was a very large percentage of the population.  Many of the benefits that people enjoyed were essential to their survival.   That being said, I can see how the use could be justified as being for the public good.  The use of that land for a recreational trail however is entirely different in that the percentage of people in this country that will receive any benefit from it is minute in comparison.  Furthermore the benefit received by the few that do choose to use the trail is nothing close to essential for survival and could easily be obtained at the local gym, or by use of land that is already set aside for public use.  A large amount of public money is already being spent to maintain land like the entire national forest system, state parks, county parks, city parks, and many other trail systems. Not only is the percentage of people that benefit from the trail small, there are many negative impacts that result from public trail access.  Some of those are impacts are simply cosmetic or trivial but some result in loss of life and life endangerment.  Because of the obvious involvement of the RTC in creating the opportunity for such negative impacts, I feel that research should be conducted and consideration given to things like the amount of rapes and abductions that occur along trails, as well as the loss of privacy to those areas where land owners may have had absolute solitude and now are forced to deal with every vagrant, pervert, or thief that now has the right to stand at the edge of their property and be tempted to steal their valuables, or in all reality, their children.  I would challenge any bicyclist or hiker to go to the family of someone that has been abducted, raped or murdered as a result of someone that gained access to their loved one by use of a public trail and convince them of how you being able to ride your bike on what was once their property is worth the life of their loved one.  If the taking of peoples land against their will is to be considered "for the public good" then any and all impacts of such action should be exhaustively researched and made public, whether negative or positive.  So maybe on the RTC websites,along side the pictures of beautiful mountain scenes, should be some of crime scenes, vandalism and trash piles to represent reality of many rather than fantasy of few.

Joe wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Mar 26 2014 9:35 AM

Has anyone been able to determine why this decision does not affect trails in the original 13 colonies?  

I can't find an answer anywhere.  

Bob O wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Sat, Mar 29 2014 11:24 PM

In response to Carroll Pratt, I suspect (but don't know for sure) that the reason the Brandt decision doesn't affect the original 13 colonies is one of the following: (i) the 1875 land grant act didn't, by its terms, apply in the original 13 colonies, or (more likely)(ii) there were no public lands in the original 13 colonies to which the 1875 Act could apply.  Keep in mind that the 1875 Act only gave rairload's rights over public lands, not privately owned property

Bo O wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Sat, Mar 29 2014 11:44 PM

In response to "Dusty's" question about whether trail use was a valid public purpose, the 1990 Supreme Court decision I mentioned in my earlier note (Preseault v. ICC, 110 S. Ct. 914,for those who want to read it) expressly held that the Trails Act was a valid exercise of Congress' Commerce Clause power under the Constitution.  But, importantly,  the court also held that affected landowners had a claim against the United States for "just compensation" for any "taking" of their property that might result from a Trails Act conversion.  There have been a ton of Trails Act "compensation" cases against the U.S. since 1990, very many of which have been successful,  The reason trail operators or supporters may not be aware of them is that the cases are brought against the U.S. (not the trail operator) and the compensation comes from the Federal treasury.

Alan wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Wed, Apr 9 2014 3:16 PM

Wow Travis, just wow... What's it like to live with so much fear? Hide your kids, hide your wives, the perverted cyclists are coming within 400 ft of your house!!!! Only a fascist would close public trails and tell me to go to the gym and pay a monthly fee to exercise.

Dick wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Thu, Apr 10 2014 6:14 PM

Rail trail people are the most selfish, inconsiderate, and underhanded towards property owned by others I have ever met! That includes entities such as local, state, municipal, utilities, rail roads, etc. that have been enlisted to help gang up on property and home owners they want to steal land from. All done under many various guises!

Peg wrote re: The Supreme Court Decision: How Does It Affect Rail-Trails?
on Mon, Jun 9 2014 11:27 AM

I'm appalled at the ignorance of basic constitutional law demonstrated by all the hissy-fits here from trail users.  Bottom line is that there was an easement for a purpose for a fixed period--just because trails are "good" and trail users obviously morally superior to the people who happened to have PAID for the land in question doesn't mean that the terms of the easement (railroad and five years of nonuse) don't control.  Go buy a trail easement if you want a trail there.  

 

Rails-to-Trails Conservancy
The Duke Ellington Building
2121 Ward Ct., NW
5th Floor
Washington, DC 20037
+1-202-331-9696