Rails to Trails: A Train Wreck for Property Owners

Private property rights are under siege by a government program called Rails to Trails


Train tracks
Beau Lawrence

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.

In 1875 the government paid landowners minuscule sums of money for the right to run tracks on private property. The government never attempted to make a clean purchase or negotiate permanent takings under the doctrine of eminent domain. 

Today, business has evolved and railroads have abandoned vast swaths of rail crisscrossing the country. In many cases, dangerous, decayed tracks sit forgotten on private land. While pedestrian trails would likely be an improvement to the land, they are categorically different from enjoying the private backyard the Brandts paid for—or even from the commercial wealth the trains would have brought.

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. 

In 1998, DC attorney Nels Ackerson described Rails-to-Trails as a "vast program for the quiet confiscation of land." He noted that it has "created a blank check drawable from the account of the U.S. Treasury" that "may cost the taxpayers hundreds of millions of dollars or more." 

Property rights are one of the more fundamental principles of free society. The government cannot avoid the Constitution by avoiding the most basic principles of ownership. The Supreme Court should respect landowners' common law rights and expectations and grant quiet title to the Brandts, or else require the government to pay just compensation for taking the Brandts' land.