When Rails-to-Trails, Robber Barons, and Revocable Trusts Collide

Opinions of the United States Supreme Court are often hard to parse (even for judges and lawyers) and are usually full of unfamiliar legal concepts.  So it’s with some trepidation that I’ve decided to make a Supreme Court opinion the subject of one of my first posts.  Before I jump into all the legal mumbo jumbo (which I’ll try to keep simple if only for my own sake), I should start by establishing what exactly the case has to do with running.

Let’s start with the Rails-to-Trails Conservancy.  According to their website:

Rails-to-Trails Conservancy is a non-profit organization based in Washington, D.C., whose mission it is to create a nationwide network of trails from former rail lines and connecting corridors to build healthier places for healthier people.

The organization (RTC for short) has been around since 1986 and has done a lot to see their mission achieved.  For instance, not too far from where I live is the Elizabeth River Trail – Atlantic City Spur, which was, in fact, built on an old railroad right-of-way that follows along parts of Norfolk’s waterfront.  One city over in Virginia Beach, the Norfolk Avenue Trail, occupying a portion of the former Norfolk and Southern Railroad right-of-way, offers 1.3 miles of asphalt trail to walkers, bikers, and skaters.  It’s safe to say that a lot of the trails and paths RTC draws attention to and helps to preserve might not exist otherwise.

Runners, especially, enjoy the benefits of having rail-trails around.  For example, in Savannah, Georgia,  Ledesma Sports Medicine sponsors the Savannah Rails to Trails Ultra.  This years’s event featured four separate races (from 5k to 50k) and hosted 400 runners.  Similar races take place across the country–to say nothing of the countless recreational runs that people take on rail-trails on a daily basis–and they are made possible, in part, by the work done by RTC.

Now that I’ve sung the praises of RTC, I’ll transition to the legal stuff by pointing out that in the case I’m going to discuss they filed an amicus brief in support of the respondent, i.e., the federal government.  On March 10, the Supreme Court handed down its decision in the case of Marvin M. Brandt Revocable Trust v. United States.  The opinion itself can be found here and a resource page covering the case is at the excellent SCOTUSblog here.

Unless you just love trusts and estates law, “revocable trust” might be a term likely to make your eyes glaze over.  Fortunately (for most of us, anyway), the trust in question wasn’t the main issue in the case.  The main issue involved the General Railroad Right-of-Way Act of 1875. Much more exciting, right? 

Understanding the case requires some historical background.  Justice Roberts put a considerable amount of historical background about the railroads in general in his opinion, but I’ll just stick to the history that’s directly relevant to the case itself.  Even limiting myself to just that, the story starts more than a century ago.

In 1908, the Laramie, Hahn’s Peak and Pacific Railroad (LHP&P) obtained a patent that “meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border” (a total distance of about 66 miles at a width of 200 feet).  Lest anyone be confused by the use of the term “patent” in this context, the majority opinion supplies the definition: “A land patent is an official document reflecting a grant by a sovereign that is made public, or ‘patent.'”  Skipping forward to 1996, the last railroad to own the right of way abandoned it–a process that wasn’t finalized until 2004.

Of course, if it were only the railroad involved in the situation there would be no case to begin with.  In fact, however, as the name of the case implies, the Brandt family has had an interest in some of the land on the old LHP&P tract since 1976.  It was in that year that the federal government “patented an 83-acre parcel of land in Fox Park, surrounded by the Medicine Bow-Routt National Forest, to Melvin and Lulu Brandt.”  Marvin, for whom the trust is named, is Melvin’s son.  The patent to the Brandts contained a number of limitations (the government reserved some rights of way for itself), but more importantly, the patent provided that the grant was “subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn’s Peak & Pacific Railway Company, its successors or assigns.”  As Justice Roberts pointed out “The patent did not specify what would occur if the railroad abandoned this right of way.”

Shortly after the abandonment was final, the government filed the current case to quiet title, i.e., to clear up who owned what.  There were 31 parcels of land altogether and the government was able to clear title to all but one of the parcels either through settlement or default judgment.  The one holdout, as you know by now, was Marvin Brandt.  According to Brandt–arguing based on common law property rules–the right of way across his land was merely an easement that disappeared upon abandonment by the railroad.  The government (with RTC as amicus) contended that it had always retained “a future estate that would be restored to the United States if the railroad abandoned or forfeited its interest.”  The lone dissenter, Justice Sonia Sotomayor, painted a dire picture of the consequences that would result from a decision in favor of the property owners:

Since 1903, this Court has held that rights of way were granted to railroads with an implied possibility of reverter to the United States. Regardless of whether these rights of way are labeled “easements” or “fees,” nothing in Great Northern overruled that conclusion. By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars. I do not believe the law requires this result, and I respectfully dissent.

The stakes, then (both in the eyes of the government and of RTC) were substantial.  Without getting too much down into the weeds of the legal analysis, the bottom line is that the government lost this case.  Justice Roberts wrote:

The Government does not dispute that easements normally work this way [i.e., the easement is extinguished upon abandonment], but maintains that the 1875 Act granted the railroads something more than an easement, reserving an implied reversionary interest in that something more to the United States. The Government loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States315 U. S. 262 (1942).

The Great Northern case put together two of everyone’s favorite 19th century “robber baron” villains: the railroads and the oil industry.  The Great Northern Railway Company discovered oil under its right of way and (obviously) wanted to extract the oil for its own benefit.  The government told the railroad “Not so fast!” and pointed out that their right of way only ran over the surface of the land; it gave the railroad no right to take oil out of the ground.  The Supreme Court agreed, holding (in a phrase repeated throughout Justice Roberts’ majority opinion in our case)  that “the 1875 Act granted an easement and nothing more.”  For eight of the Supreme Court’s justices, the application of that holding to the present case was straightforward.

For anyone who doesn’t know what an easement is, it’s more or less a limited right granted by a landowner to someone else for a limited use of the property.  For instance, a power company might have an easement along property in order to put up power lines.  They don’t own the land, but they have a limited right to do certain things on it.   In determining that all the railroad ever had was a simple easement, the finding in favor of the Brandts was a natural conclusion.

One is left wondering, however, whether Justice Sotomayor’s predictions about the fallout from this decision might actually come to pass.  Certainly, a race like the Savannah Rails to Trails Ultra that relies on the existence of rail-trails for holding its events would be natural to worry that rail-trails are no longer a viable option and the government will phase the program out.   Race organizers, the RTC, hikers, and trail runners can take some comfort, however, from another federal law that was enacted in 1968: the National Trails System Act.

As its names suggests, the National Trails System Act established the system of National Scenic Trails, National Historic Trails, and National Recreation Trails that are now so familiar.  The important provision of that act for our purposes is Section 8(d):

[I]n the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with the National Trails System Act, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way . . . then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this Act, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.

John Heffner of Strasburger & Price, L.L.P. summarizes the effect of that section:

While this decision could have major implications for lands that reverted to the government upon termination of their use as railroad lines, it does not affect the efficacy of rail trails established under the Trails Act, the usual method today for preserving railroad lands for recreational purposes. There are two reasons for that conclusion. First, under the Trails Act a rail line designated for trail use is not considered legally “abandoned” despite the fact that railroad service has terminated and the track has been removed. Second, a substantial, if not the majority, of rail trails established today involve lines where the land is either held in fee or consists of a common law reversionary easement not a federal land grant.

Heffner chose what I think is an appropriate title for his article: “Reports of the Death of Rail Trails Are Greatly Exaggerated.”  In fact, RTC itself notes that the impact of the decision will be limited: “The ruling only affects non-railbanked corridors that were created from federally granted rights-of-way through the 1875 Act. And we know that most railroad corridors created under this federal law are located west of the Mississippi River.”

Conservation and other groups have come to rely on the federal government for meeting their goals (and who can blame them given the history of the parks systems in this country?), but this case shows that that reliance might very well be misplaced.  It would undoubtedly be harder to preserve the same amounts and types of land that the national park system has been sitting on for the last century.  But if conservation groups, hikers, cyclists, runners and others who enjoy trails are serious about the benefits of keeping these areas preserved, then it’s a task they should be ready to take on, even if that means doing it without the government.

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