When most people think of walking along railroad tracks, they conjure up images from classic films or their own youth. In 1986, however the Rails-to-Trails Conservancy, an American nonprofit organization based in Washington, D.C. was created to capitalize on a little-noticed section of The Railroad Revitalization and Regulatory Reform Act of 1976 (known as the 4R Act). This included provisions for funding, information exchange and technical assistance in order to preserve these corridors and create public trails, and was called the “railbanking” provisions; it allowed disused railroad corridors to be preserved in public ownership rather than sold and dismantled. The federal government would give grants to cities to convert the abandoned rail lines to recreational and trail uses.
While this seems like an efficient, and straightforward concept, the real impact of this project has been felt across thousands of miles of landowners’ property throughout the United States. The problem is that 90% railroads are on easements (generally 100′ wide) and not owned outight by the railroads. An easement is a “taking” of private property for a public purpose, and in Texas, only for “public use.” This means that when the government takes someone’s property to use, it must identify the extent of what it is taking; both the physical boundaries of the property taken, and, in the case of easements, what it will do on the property and for how long.
The federal government’s unilateral conversion of the easement from railroad purpose to recreational purpose is a “taking” in condemnation for which the landowner is entitled to compensation. An easement of the kind that railroads sit on lasts only so long as it is used as a railroad. As soon as it stops being used for that purpose, it reverts back to the landowner.
So now, the federal government finds itself in a pickle. By turning these old railroads into trails, it opened the door to landowners to walk all over it, so to speak. Landowners started suing the cities and federal government for inverse condemnation and winning. Now the most recent Supreme Court case, a resounding victory for landowners, has shot down the federal government’s arguments that it acquired these lands outright when then revert from railroad easements back to the government.
In a write up by Lawrence Hurley, he explains that the U.S. Supreme Court on Monday ruled, 8-1 for a Wyoming property owner who objected to a plan to extend a pathway across his land. In a decision that could affect similar cases across the United States, the court ruled on an 8-1 vote that the right-of-way across Marvin Brandt’s land that was established by a railroad was extinguished when the railroad was later abandoned.
As a result, the U.S. Forest Service cannot build a public trail along a half-mile stretch of the railroad that crosses Brandt’s land in Fox Park. The lone dissenting opinion, penned by Justice Sotomayor, said the court’s decision could lead to more expensive litigation over other trails, including compensation claims filed by landowners. Mr. Hurley concludes that there are currently about 20,000 miles of so-called rail trails, according to the conservancy.
The federal government will have to think twice about new rails to trails developments, understanding that whenever they begin one of these projects, the landowners along the proposed trail will be able to recover for the taking of the property. This will have far reaching consequences for any such proposed project, and represents a substantial victory for landowners all over the country.
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