Friday, November 29, 2013

Rails to Trails: A Train Wreck for Property Owners

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Rails to Trails is a government program to convert abandoned railroad tracks to recreational trails. Sounds great, except that the tracks run over private property, and the private landowners haven’t been paid for this permanent land grab. A case before the Supreme Court this term, Brandt v. United States, demonstrates the program’s problems.  

The Brandt family owns 83 acres of Wyoming property, split in half by a railroad right of way. Under the General Railroad Right-of-Way Act of 1875, the government paid the Brandts’ predecessors to use their land for the limited purpose of laying train tracks. The understanding at the time was that the land would revert to private property if and when the railroads ceased operating.

The railroad’s right to use the Brandts’ property ended when it abandoned its right of way to the the land in 2003. The Brandts should now be able to use the strip of land however they please. But in 2005, under the “Rails to Trails” statute, the government told the Brandts that it would be converting the abandoned railway into a recreational trail.

In 1988, a century after contracts were signed, the federal government passed a “Railbanking” law to preserve its possession and establish its right to turn abandoned railroad tracks into recreational parks. This was not what landowners had agreed to and was not within the terms of the government’s limited right to use the Brandts’ land.

Converting the tracks into a trail makes the government’s use of the land permanent rather than temporary and conditional on the railroad’s use. It also changes the nature of how the government plans to use the land. If the government wants to convert the expired railroad easement into a recreational trail, it should have to pay the Brandts just compensation for this new, permanent taking.

The Pacific Legal Foundation, which filed an amicus brief on the Brandts’ behalf, writes that, because existing precedent is so clear, the “case should have been open-and-shut.” Instead, the “United States tried to circumvent Federal Circuit precedent by filing a quiet title action in a Wyoming federal district court,” claiming that its “implied” right to use the land trumped the Brandts’ interest. The government relied on weak authority to convince the Tenth Circuit that it had an “implied reversionary interest” in the railroad easement, and that the common law of property does not apply to disputes over ownership of railroad easements.

But common law principles of ownership always apply to property. The Supreme Court has repeatedly applied common law to railroad easements, including requiring subsequent purchasers of the underlying land to purchase the entire tract, including the easement portion conditionally contracted to the railroad. That means that the land the Brandts bought included the strip the feds now claim belongs to them, and the price the Brandts paid reflects that they, not the government, own that strip.

...None of this controversy is a surprise to the government, which has been defending these programs in court since the beginning. As early as 1942, the Supreme Court interpreted the Railroad Right of Way Act to grant only an easement, rather than a more expansive property right. More recently, in 2002, Assistant Attorney General Thomas L. Sansonetti warned Congress that then-pending rails-to-trails cases across the country involved 4,550 private property owners and exposed the government to over $57 million in constitutionally-required compensation for these takings. 



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