SCOTUS decision affecting rails-to-trails programs

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reddan
Keymaster
#

Interesting.

This leads me to wonder if a greater focus on rail-with-trail might be warranted, if one wishes to encourage a large-scale network of recreational bike routes without spending decades in negotiations with individual property owners. (Of course, the argument could be legitimately made that such a network would be called “the roads”, but it is nice to have facilities dedicated to non-motorized traffic.)


Tink
Member
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This is a horrible decision for the future of the government’s Rails-to-Trails program. Private landowners may now sue to get their land BACK from the program, not to mention the fact that they can now effectively prevent the creation of future Rails-to-Trails. Justice Sotomayor, the lone voice of dissent on the Court, was correct when she stated, “The Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as a means of transportation and recreation… Lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.” This decision by SCOTUS marks a sad day for rails-to-trails advocates nationwide.


Vannevar
Participant
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I think there may be some nuance there. This may only apply to railroad rights-of-way taken via the federal General Railroad Right-of-Way Act of 1875, and it may only apply to those Rail Banks done where the railroad when out of business prior 1983’s Rails to Trails legislation. (Which is still a lot of them)

Personally, I think it’s a good decision – from a property-rights perspective. Government took somebody’s property for a railroad, and if the railroad went away (and there wasn’t any Rail2Trail law) then it should probably revert to the original owner. And now they’re going to get paid for it. That doesn’t offend me.

Certainly, lots of trail folks are waking up to a new world, lots of attorneys have messages in their inbox’s, and people trying to assemble new trails have a lot more ambiguity to deal with.

IMO I don’t think any existing trail will be threatened; people might get paid for their land. Sort of a very-long-term taking by eminent domain (in effect) purchase of the land for the trail. I think it smells like fairness.

And I love me some bike trails.


jonawebb
Participant
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Except that the folks who had their land taken way back in 1875 are long dead, their heirs inherited land which had the strip of land already removed from it, and quite possibly the government taking of the land for the railroads also increased the value of the land by making it accessible via railroad, or, now, as part of a trail system. To claim that the land really belongs to them after over a hundred years of ownership by someone else sounds like faux originalist justification for rich guys getting richer at the expense of the rest of us.


salty
Participant
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IANAL and I haven’t read the whole decision, but this smells a whole lot more like people looking to make a quick (and undeserved) buck couched in some “civil liberties” nonsense than “fairness” to me.


Benzo
Participant
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Could local governments / county governments claim trail right of way via eminent domain and compensate landowners for the small value of the narrow strip of land used for the trail?


andyc
Member
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They could: See Kelo v. City of New London

<cynic>Though I think that only applies to organizations with deep pockets.</cynic>


Drewbacca
Participant
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jonawebb wrote:Except that the folks who had their land taken way back in 1875 are long dead, their heirs inherited land which had the strip of land already removed from it, and quite possibly the government taking of the land for the railroads also increased the value of the land by making it accessible via railroad, or, now, as part of a trail system. To claim that the land really belongs to them after over a hundred years of ownership by someone else sounds like faux originalist justification for rich guys getting richer at the expense of the rest of us.

I agree with you, except that there was a property exchange in 1976 (IIRC). So, this particular example doesn’t go back generations. It’s more complex than just a fight over land use.

I think that the family is owed compensation from the government for what amounts to a sort of juggling act of property rights. That said, I don’t like the differentiation of right-of-way… the implication that a train would be OK but a bike path is unacceptable. I think there are two different issues that sort of got strung together.

I’m genuinely concerned about how the dust will settle on this. I’m certainly not as confident as V.


jonawebb
Participant
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Benzo wrote:Could local governments / county governments claim trail right of way via eminent domain and compensate landowners for the small value of the narrow strip of land used for the trail?

Yes, but if the property owner wants to fight it in court, it can take years to resolve, and guess what happens to the trail in the meantime?


salty
Participant
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La propriété, c’est le vol.


reddan
Keymaster
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IANAL, but there is an important difference between an “easement” and “taking ownership”. Easements are more akin to rental/lease agreements; when the agreement has terminated, ownership reverts to the current property holder.

The crux of the rail decision by SCOTUS seems to be that the federal gov’t specifically did not take ownership (and, in fact, argued for that very point in court many years ago, to avoid paying eminent domain and compensation then), but merely acquired easements for use of the railroads; if the gov’t had actually purchased the land, it could then be reallocated for whatever they wished.

In general, we should be wary of making it easier for large deep-pocketed organizations to casually strip away property rights; just because it benefits us in this specific case, doesn’t mean we want to make it easier for, say, a fracking company to buy out the the neighboring farmer with the unused right-of-way across your back yard, so they can run trucks through there.

And, to be fair, the people who might potentially make a buck are not just corporations and robber barons, but a lot of folks living in rural and/or impoverished areas. Look at where the existing rail lines run, and you’ll find few running through McMansion developments and golf courses; you’ll see a whole lot of farms, woodlots, and patch towns.

I dunno. I can’t say that I like the decision, but I also can’t argue that it’s not legit.


Drewbacca
Participant
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salty wrote:La propriété, c’est le vol.

Fetchez la vache!


Pierce
Participant
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The particular case is concerned with the government giving property to the guy’s family, which included the railroad. When the railroad was pulled out, the government tried to claim title to the right of way.

“Private landowners may now sue to get their land BACK from the program, not to mention the fact that they can now effectively prevent the creation of future Rails-to-Trails.”

I mean I guess theycould sue if they wanted to be dicks about it, but all they gain is some railroad land. Especially if it’s an already established trail, they’ll be buying a lot of ill will and more taxes to pay I’m assuming if they try to assert ownership

As for making bucks, bucks are only made if the government actually decides to buy the land after its rights have been challenged. Is the government now going to try and buy this guy’s right of way land or just drop it?

I think there’s also a nice tax incentive to avoid quick buck schemes. Taxes on the land would make it wise to have the land valued low. If the government decides it needs it and uses eminent domain, that same low valuation will come in their favor.

Going forward, if the government grant’s public land or sells it like they did with this guy’s family, they can just cut out the right of way from the sale.


Pierce
Participant
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NPR story:

http://www.npr.org/blogs/thetwo-way/2014/03/10/288584936/family-trust-wins-supreme-court-fight-against-bike-trail

And:

http://www.eenews.net/stories/1059991197

Wow, turns out the guy is a dick. If the trail section is actually used, my guess is that people will just be going around, under or over whatever he uses to try and restrict access to the property

Well, kind of a dick. There’s nothing particularly wrong with trying to figure out whether or not land belongs to you or not


JaySherman5000
Member
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“For all I know, there is some right of way that goes through people’s houses, you know,” Justice Stephen Breyer said, “and all of a sudden, they are going to be living in their house and suddenly a bicycle will run through it.”

because that’s a reasonable argument that makes complete sense. How did this guy get to the Supreme Court again?

I agree that this case is a win for property owners. As nice as bike trails might be, no one has the right to grab land from a property owner without compensating them in some way.

Also, having a trail run through your property can be a significant burden for the property owner, especially if it isn’t managed well (i.e. litter, vagrants, trespassers wandering off the trail, etc…). In some ways, it could be a lot worse than having an active railroad running through your yard. At least with the trains you get the pleasant clickety-clack of steel wheels on polished rails.


that guy
Participant
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An easement or “right of way” is NOT the same as ownership.

The landowner granted (or was forced to grant) a right of way for a railroad, not a bike path or any other use.


salty
Participant
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I thought the “railbanking” legislation that enabled Rails-to-Trails was expressly devised to avoid these kinds of shenanigans.


that guy
Participant
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salty wrote:“railbanking” legislation

That’s true, but the railroad had been abandoned long before the 1983 railbanking legislation, so the government can’t come in and say “sorry we gave away our right to that land decades ago (when the railroads abandoned it), we’d like it back now.”


Drewbacca
Participant
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that guy wrote:That’s true, but the railroad had been abandoned long before the 1983 railbanking legislation, so the government can’t come in and say “sorry we gave away our right to that land decades ago (when the railroads abandoned it), we’d like it back now.”

“The railroad stopped running in 1995 and was formally abandoned in 2004.”


that guy
Participant
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Drewbacca wrote:

that guy wrote:That’s true, but the railroad had been abandoned long before the 1983 railbanking legislation, so the government can’t come in and say “sorry we gave away our right to that land decades ago (when the railroads abandoned it), we’d like it back now.”

“The railroad stopped running in 1995 and was formally abandoned in 2004.”

Oh.

Well that’s BS then.


KBrooks
Participant
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JaySherman5000 wrote:

Also, having a trail run through your property can be a significant burden for the property owner, especially if it isn’t managed well (i.e. litter, vagrants, trespassers wandering off the trail, etc…). In some ways, it could be a lot worse than having an active railroad running through your yard.

JaySherman5000, do you have any evidence to back that up? It’s a common argument against rail-trails, but hasn’t turned out to be true in most cases (that I know of).


KBrooks
Participant
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In any case:

This decision kind of sucks… I think… although it sounds like this guy had more of a claim than most. What worries me is that suing to take land from existing rail-trails will become a pet cause of right-wingers and just another means of “bikes are for blue states” pigeon-holing.


edmonds59
Participant
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I wonder how the signatories of the broken 1851 Treaty of Fort Laramie would feel about the US granting this land to this cracker’s ancestors in the first place. How far back in property rights claims do we want to go anyway?


Drewbacca
Participant
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KBrooks wrote:In any case:

This decision kind of sucks… I think… although it sounds like this guy had more of a claim than most. What worries me is that suing to take land from existing rail-trails will become a pet cause of right-wingers and just another means of “bikes are for blue states” pigeon-holing.

The RTC response released later in the day discusses your concerns.

http://community.railstotrails.org/blogs/trailblog/archive/2014/03/11/the-supreme-court-decision-how-does-it-affect-rail-trails.aspx


JaySherman5000
Member
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KBrooks wrote:

JaySherman5000, do you have any evidence to back that up?

Well, that was just my opinion, but I think a sound argument can be made. Railroads easements are generally treated as private property, hence the fencing and other barriers that run parallel to the train tracks in some areas (e.g. near Sandcastle). Those barriers keep people off the tracks and probably reduce liability in the case where someone might try to hug a moving train. So if I agree to a railroad easement on my property, I know more or less what sort of intrusions to expect (mainly trains and service vehicles).

Meanwhile, a bicycle trail is a public facility accessible by anyone. Having a bike trail run through the middle of your property means you are losing a greater magnitude of control over land, as you are exposing your property to more people (instead of just railroad employees and contractors you now are exposed to anyone that decides to take a jaunt down the trail). The likelihood that someone will wander off a bike trail and onto your property seems obviously greater than someone hopping off a freight train onto your land, if only because the sheer number of people flowing through the easement is greater in the case of the trail. This rationale might be why Mr. Brandt said the following:

“We traded for the land with a right of way on it for railroad uses,” Brandt said in December. “They want to bring a train through here, that’s fine. We never expected and we never agreed to a bicycle trail.”


Drewbacca
Participant
#

JaySherman5000 wrote:“We traded for the land with a right of way on it for railroad uses,” Brandt said in December. “They want to bring a train through here, that’s fine. We never expected and we never agreed to a bicycle trail.”

My only problem with that quote is that it goes both ways. The gov’t may not have stipulated in the land exchange that the land could see other use besides railroad (which was Mr. Brandt’s point)… but the contract also failed to stipulate that the gov’t couldn’t.

But, the fact remains that it was an easement and not an exchange of ownership… It does seem quite absurd that the government can make use of someone’s land without reimbursing them for it (which is how I understand that?).


reddan
Keymaster
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but the contract also failed to stipulate that the gov’t couldn’t.

I don’t think that really matters. The contract I signed with my waterproofers recently didn’t bar their laborers from using my shower or wearing my wife’s underwear, but I’m pretty sure lack of explicit denial is not the same thing as implicit permission.


KBrooks
Participant
#

JaySherman5000 wrote:

Well, that was just my opinion, but I think a sound argument can be made. Railroads easements are generally treated as private property, hence the fencing and other barriers that run parallel to the train tracks in some areas (e.g. near Sandcastle). Those barriers keep people off the tracks and probably reduce liability in the case where someone might try to hug a moving train. So if I agree to a railroad easement on my property, I know more or less what sort of intrusions to expect (mainly trains and service vehicles).

Meanwhile, a bicycle trail is a public facility accessible by anyone. Having a bike trail run through the middle of your property means you are losing a greater magnitude of control over land, as you are exposing your property to more people (instead of just railroad employees and contractors you now are exposed to anyone that decides to take a jaunt down the trail). The likelihood that someone will wander off a bike trail and onto your property seems obviously greater than someone hopping off a freight train onto your land, if only because the sheer number of people flowing through the easement is greater in the case of the trail. This rationale might be why Mr. Brandt said the following:

“We traded for the land with a right of way on it for railroad uses,” Brandt said in December. “They want to bring a train through here, that’s fine. We never expected and we never agreed to a bicycle trail.”

There are plenty of places where an active railroad is not separated from private property by a fence. Also, as far as “intrusions” and “magnitude of control,” you can’t assume that everyone would share your opinion on what constitutes these. Personally, I’d take a few people biking through over the noise and threat of derailment or spillage of toxic substances (however low).

In any case, my point is that the “intrusions” by people wandering off the trail is a common misconception that has been inflated by rail-trail opponents.


reddan
Keymaster
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In any case, my point is that the “intrusions” by people wandering off the trail is a common misconception that has been inflated by rail-trail opponents.

I do wonder if there is any real difference (in terms of litter, trespassing, and what-have-you) between the average rail-trail and the average sidewalk. Speaking as Someone With A Sidewalk In Front Of Their House, I can attest that there are plenty of times when people walk on my lawn, and plenty of litter being dropped.

[ETA:] And dogshit. Let’s not forget the dogshit. One of my most petted of peeves.


Drewbacca
Participant
#

Dan, that’s a terrible example. We are talking contracted use here, and the assumption by the land owner that it would only be used for trains. Using another mode of transportation along the same route is not even remotely comparable to an invasion of privacy in your underwear example. As far as taking a shower, I’d compare that to the government going outside of the perimeter established by the easement, which is not the case.

It would be more accurate if the waterproofers decided to build a swimming pull in your basement… but then, I expect you have a quote (or some kind of work order) for the labor which is itself an explicit contractual agreement.

I do agree in this case that the Brandts were unaware of the possibility of a rail-trail when they made the property exchange back in the 70’s and there was no reason to expect such a clause. I do sympathize with them in that they were apparently shafted by the government. I’m fine with the ruling based on this being an easement as opposed to a change of property ownership. The whole situation sounds like a mess of bad planning, and lack of communication of all parties involved.

Still, the point of a contract is to protect both parties and specifically outlining what the leasee can/can’t do in regards to that… I think the only implicit understanding is that you aren’t going to break other laws or engage in any illicit activity. I’m not willing to call a rail-trail such a violation… maybe a nudist beach or a sound stage, but not a basic use trail that sees minimal ridership to begin with.


JaySherman5000
Member
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@kbrooks:

My point was that you can limit access to a railway, whereas a public-use access trail, by nature, should not be limited. It stands to reason that the more people you have traversing an easement, the more likely you are to have people wander off of said easement. As an example, how much traffic do you think the sunken barges in the south side would see if there weren’t a paved bicycle trail running adjacent to them?

Again, in the case of railroads, the number of people expected to traverse that easement (disregarding those that are confined inside of trains) should be less than what is expected in the case of a bicycle trail. If the number of people expected in the area is reduced, then the number of people wandering away from that area is reduced. Advantage: trains.


reddan
Keymaster
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Dan, that’s a terrible example.

Well, yes. That was the intent. It was to illustrate the laughability of the idea that anything not forbidden in a contract is permitted by default, when referencing *someone else’s property*.

As a landowner, I’d be pretty peeved if I’d granted a pedestrian right-of-way through my property, and it was converted to motor vehicle access against my will.


salty
Participant
#

there is specific legislation enabling the conversion of railroad ROW to trails, so all of these arguments that “they shouldnt be able to convert X into Y” are moot. my understanding is the intent of that legislation was exactly to avoid having one greedy prick hold an entire trail system hostage.


Jacob McCrea
Participant
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I read the Supreme Court’s opinion last night. Based on substantial relevant experience, the Court’s decision was 100% correct, and quite frankly was as predictable as the sun coming up in the morning. The government originally granted a surface easement (and not some larger property interest) to the railroad to place a rail line on public land generations ago. Then, in 1976, the government traded the public land to the landowner, subject to the railroad’s surface easement rights, in exchange for land that the government wanted.

If the government wanted to retain any rights in the land upon which the railroad right of way was located, it should have carved out those rights in the 1976 transaction with the landowner. It didn’t, despite a U.S. Supreme Court case on the books clearly stating that the railroad’s rights were in the nature of a surface easement, and despite (literally) centuries of well-settled property law providing that upon the abandonment of the easement, the easement rights terminated, with NO property rights reverting to the original grantor of the easement/predecessor in title (the government in this case).

If you want a fairly decent analogy, it is this: The government sold its bicycle to a private citizen, then asserted the right to ride the bike as it saw fit, and did indeed take and ride the bike, without paying just compensation under the “takings” clause of the U.S. Constitution.

Furthermore, the contrary result would have been a massive conveyance of public property to the railroads, much more than they’ve already received – effectively a supercharged version of corporate welfare for the railroads. This is exactly why the government successfully argued in the 1940s that the railroads received only an easement under the statute, rather than full title (surface rights, oil and gas rights, coal rights, etc.). In that old case, the railroad wanted to drill for oil and gas, despite having only a surface easement under the statute, and the government essentially said, “oh no, you only have an easement, we own the oil and gas rights.”

As for those who would have liked to see a different result, I would say that (1) it’s easy to take that position when it isn’t your property; (2) you are condoning a society where the government won’t honor its contractual agreements with citizens, and the courts let the government get away with it.


Marko82
Participant
#

In situations like this, why doesnt the government just take the railbed property by eminent domain like they do for roads? Surely a rail to trail is a better public use of this then the RI private development case that reached the court a few years back.


Pierce
Participant
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“I read the Supreme Court’s opinion last night.”

The problem with only reading one opinion is that you’re entirely dependent upon the Justice’s reading of a previous opinion, which could be significantly different than your understanding or even another Justices. Note Sotomayor’s dissent, which reads them differently.


LizziMac
Member
#

Here’s a handydandy collection of trail impact studies (bottom right of page: “Trail Studies and Reports”) that have been conducted, as well as other information (links to statutes) and various oppositional concerns that have been addressed for those interested in becoming more educated on the topic.


Swalfoort
Participant
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I am with Jacob on this one.

The nature of the agreement between the US government and the railroad permitted a USE of the property, not control of the property.

When the use went away, the agreement ceased.

Railbanking, which is the current practice of protecting rail rights of way so that trail (or other transportation use) can be developed preserves the corridor as a transportation route, and is granted by the railroad. (Which the railroad has the right to take back, by the way….)

In this case, the railroad had permission from the federal government to use the property, but did not control it in the presumed sense. It had no right to authorize any subsequent use of the property.


Vannevar
Participant
#

Drewbacca wrote:I’m genuinely concerned about how the dust will settle on this. I’m certainly not as confident as V.

I’ll have you know, I have a Master’s Degree in Sanguine.

edmonds59 wrote:I wonder how the signatories of the broken 1851 Treaty of Fort Laramie would feel about the US granting this land to this cracker’s ancestors in the first place. How far back in property rights claims do we want to go anyway?

That’s what my wife said, when the railroad goes away and the property reverts to the original owner – is that the Native Americans?

reddan wrote:wearing my wife’s underwear,

Jacob McCrea wrote:Based on substantial relevant experience, the Court’s decision was 100% correct, and quite frankly was as predictable as the sun coming up in the morning. T

I love this thread and all yinz.


edmonds59
Participant
#

My take is this.
The SCOTUS decision was (and not simply by definition) the right one. I can think of any number of foreseeable conditions where the reverse would set a horrible precedent. Justice Sotomayor’s dissent, while I normally consider her more competent than most of the others, was off base.
That being said, this property owner could certainly have come to some settlement short of relinquishing the property rights to allow this HALF MILE SECTION of a 21 mile trail (Sadcastle, anyone?) to continue as an amenity and asset to the community. From what I’ve read, some 30+ other property owners along this trail came to some kind of settlement with the National Park Service to allow the trail. In similar situations across the country, trail advocates have negotiated agreements with property owners to provide trails. That’s how that’s done. This is apparently the first one that went to the Supreme Court.
So then, a couple things.
a. This guy is just a Supreme dick who hates bikes, trails, and sees people as threats to be repelled from his land, land that was handed down to him from his ancestors after being wrested from the original inhabitants by the US gummint.
b. The Cato Foundation and the Mountain States Legal Foundation, libertarian/small gummint activist think tanks*, saw this case as an opportunity to set a legal precedent in these types of cases, which is their stated mission, and thusly backed his case to the Supreme Court. [edit; side benefit – it appears to the general public that this is a case of the oppressed little guy fightin’ the the big bad Feds, and carries on their mythology.]

*except in cases where we are using big gummint to wrest control of lands from those whose ownership and/or ideologies we don’t care for.

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