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Friday, March 14, 2014

Property rights win in 'Rails to Trails'

by Theodora Dowling, WLJ Correspondent

The Supreme Court took the administrative branch of the federal government to school last week for a lesson in private property rights. In what is being called the “rails-to-trails” case, a pivotal question was asked: can the federal government assert ownership of private land, just because it once granted a right-of-way there? Thanks to the grit of a Fox Park, WY, landowner, who hollered “No!” all the way to the Supreme Court, we now know the answer. In a sweeping 8-1 vote, the Supreme Court ruled that the government does not own this man’s land, nor that of many other private landowners whose properties were once encumbered with railway rightsof-way.

The case has its beginnings in an 1875 law by which the U.S. government granted railroads rights-of-way over what are now millions of acres of privately-owned land across the country. These easements cleared the way for the railways as the nation expanded westward. In modern times, as the railroads have begun to pull up ties and abandon their rights-of-way, the government has made the claim that it has an “implied reversionary interest” in the private property once encumbered by the rights-of-way. In other words, even though it’s not written in law (and violates both common law and Supreme Court precedent), the government says those tracts of land “revert” to federal ownership. Through a federal program developed in the 1980s, the government began turning some of those strips of land into public hiking and biking trails.

But when it came to his property, Marvin Brandt didn’t go along with the government’s “program.” Instead of settling with the government, he fought back.

“In 2006, when the U.S. Forest Service decided to seize Marvin Brandt’s land for its ill-advised trail, (the agency) knew its legal position had zero merit,” said William Perry Pendley in an interview with WLJ. Pendley is President of the Mountain States Legal Foundation (MSLF) law firm; MSLF served as Brandt’s defense in this case, Marvin M. Brandt Revocable Trust v. United States.

“Nonetheless, (the Forest Service) thought it could wear Brandt down by dragging him to the Supreme Court,” said Pendley. “The federal government’s conduct in this case is nothing less than shameful!” Mr. Brandt’s dealings with the Forest Service began in 1976, when his family agreed to a land exchange with the agency. The patent (or title) Brandt got from the Forest Service jurisdiction provided that his 83 acres was encumbered with a right-of-way to be used by the railroad, which was still in operation at the time. Then, years after the railroad pulled ties and relinquished its right-of-way, the Forest Service claimed it owned the 200-foot-wide, 10-acre tract of land. The agency’s intent was to make a bike trail through the Brandt’s private property. So, the agency sought an order “quieting title” (handing over the land to the government) to the former railway right-of-way on Brandt’s and his neighbors’ properties. Unlike his neighbors, Brandt fought back. The issue went to court, and in 2012, the Tenth Circuit Court of Appeals ruled in favor of the government. But Brandt didn’t give up. He petitioned the Supreme Court, and was joined in amici briefs filed by American Farm Bureau Federation (AFBF), National Cattlemen’s Beef Association (NCBA), Public Lands Council (PLC), Cato Institute (a free-market think tank), American Land Title Association, Pacific Legal Foundation, and several professors of property law.

In their amicus brief filed with the Supreme Court, the industry and private property groups stated, “The Tenth Circuit determining the Brandt’s title to their land without regard to the rules of property… is like trying to play baseball when the strike zone is different with each pitch.”

Chief Justice John Roberts, who wrote the majority opinion for the Court, agreed.

“The essential features of easements—including, most important here, what happens when they cease to be used—are well settled as a matter of property law... Those basic common law principles resolve this case,” Chief Justice Roberts wrote.

The majority opinion also noted that the government, in claiming it has right to the land under these old easements, is contradicting arguments it made in the 1942 Supreme Court case. That case, Great Northern Railway Co. v. United States, centered on whether railroads could claim rights to sub-surface minerals when the government granted them a right of way. In that instance, of course, the government was arguing the railroads did not get the mineral rights as an attachment to a simple easement.

“More than 70 years ago, the government argued before this court that a right of way granted under the 1875 act was a simple easement. The court was persuaded, and so ruled,” wrote the Chief Justice in his opinion. “Now the government argues that such a right of way is tantamount to a limited fee with an implied reversionary interest. We decline to endorse such a stark change in position, especially given ‘the special need for certainty and predictability where land titles are concerned.’” Of the majority opinion, Pendley told WLJ, “The Chief Justice could not have dealt more harshly with the federal government and its argument that it could ignore what it told the court in 1942 and what the court held in its landmark ruling that year.”

Indeed, Chief Justice Roberts did not mince words in his opinion: “We cannot overlook the irony in the government’s argument…. Contrary to [the 1942 ruling’s] straightforward conclusion, the government now tells us that Great Northern did not really mean what it said.”

The Supreme Court Justices’ 8-1 ruling, combined with Chief Justice Roberts’ harsh opinion, is a homerun for property rights, said Danielle Quist, Senior Counsel for Public Policy at AFBF, in an interview with WLJ.

“It is unfortunate that Brandt had to take his case all the way to the Supreme Court to stop the federal government from taking ownership of his land,” said Quist.

“But now those who own property subject to these 1875 easements can have some certainty that those strips of land belong to them and not the government.”

Some are speculating that since the Supreme Court’s clarification of the rightful ownership of those land tracts, the government may now be on the hook for millions of dollars in compensation where trails and highways exist on private land.

The ruling may prompt landowners to demand more than compensation; they may even challenge those byways’ very existence.

Said Pendley of this landmark case, “We are indebted to the courage of Marvin Brandt … for his willingness to take on the federal government and the biggest law firm in the world—the Department of Justice.”

The verdict is out: the federal government cannot retain an interest at one point, and then later come in and seize, said Pendley.

The Cato Institute summed up the importance of the case to all Americans as such:

“Stable and predictable property rights are vital to a well-functioning and free society. Not only do they facilitate commerce, but they protect the rights of private owners against the grabby hands of government officials who believe that they can put that property to better use. Now, if the government wants to turn rails into trails, they can pay for the land, just like anyone else.” — Theodora Dowling, WLJ Correspondent

 
 


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