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Government Clashes with Property Owners Over Unused Railroad Tracks

The conflict between private property and public land is nothing new. Property rights have shaped the way in which American society was structured from the moment Europeans reached the New World. Although there have been instances where conservationists have been able to use property rights to their advantage, such as in buying up land that houses sensitive environments, the relationship between conservation and property has typically been rocky. For example, legislation such as the Endangered Species Act allows the federal government to require landowners to preserve critical habitats on their land at the expense of uninterrupted use. Property owners are understandably resistant to this type of intervention, which is often justified in the name of preservation for future generations. On March 10, 2014, the Supreme Court of the United States addressed a case where the federal government wanted to convert railroad tracks into public use trails through private property.  The Court came down on the side of the property owners.

The Marvin Brandt Revocable Trust owns a significant amount of land in the Medicine-Bow Routt National Forest. Some of this land contained railroad track easements owned by the federal government. The United States Forest Service wanted to continue a trail through the family’s land on these federally owned easements, with permission of the railroad and the National Forest Service. The family argued that the land could only be used for railroad purposes, and could not be converted to another public use at the will of the government. After the trust lost in two lower court decisions, the Supreme Court held that after five years of non-use as railroad tracks, these easements reverted to the owner of the property. As such, the Forest Service could not use them as a part of their trail program.

The trail in question is part of the Rails-to-Trails movement that began in the 1980s when railroad transport was beginning to fall into disuse. The government did not want to lose the transportation network for fear that it may one day become useful, so they amended the National Trails System Act to include a procedure called “railbanking.” This procedure allows public or private agreements between track owners and trail builders to convert the land into a public trail until the railroad might need it again.

Resulting trails have a variety of benefits, and seemed like the perfect fix to preserve the railroad network while creating something productive. Health benefits include greater public access to exercise trails and green space, especially in lower-income neighborhoods without many parks where abandoned tracks are often found. The trail system also provides the economic benefit of connecting areas of varying socio-economic wealth, which promotes community development. Transportation infrastructure also improved in many urban areas. For example, the Atlanta Beltline, which is currently in the process of being converted into a multi-use path, allows users to bike or walk short distances that would take infinitely longer in the infamous Atlanta traffic. Trails through national forests or other conservation areas also promote tourism and education about conservation goals. Furthermore, trails have a variety of environmental benefits, such as providing links between fragmented habitats, and improving wetland systems.[i]

These trails have not gone without criticism.  Many of the railroad tracks, such as the ones contested in the Supreme Court case, run through what is otherwise private property in federally-owned easements. An easement is a property right to use someone else’s piece of land for a specific purpose, such as access to the easement owner’s land, or in this case, for railroad tracks. The government owns the easement in question that runs through the family’s land and had the power to assign use of the tracks on its easement to railroad companies. Property owners draw a distinction between this agreed use, and simply allowing the government to do whatever it wishes with the land, especially something that will allow public access to private land.

The Supreme Court agrees with the property owners. The Court seemed extremely concerned about the possibility that some railroad easements go right through people’s homes, saying that this intrusion is unreasonable for any but the initial agreed use.[ii] This contention seems suspect both because the United States government does not have a central database of land that it owns under such circumstances[iii] and because the people who hypothetically built houses on easements are still undertaking a significant risk.

Others criticize that the government is spending exorbitant amounts of money to settle property claims with landowners whose plots abut the trails. In 2013, the government spent $49 million on such claims.[iv] For a project that was supposed to be almost cost-free, that is a lot of money. Additionally, scholars have pointed out that the government is not even getting a deed for this money. So the taxpayers are not paying for the government to buy land for trails.[v]

The real question underlying all of this is whether the benefits are worth the costs. Is the court siding with private property owners when the policy and benefits point the other way? Both the environmentalist and the outdoorsman in me say of course. But legally, there is a long history of protecting private property. Our country was built on this system. And the lone dissenting vote of Justice Sotomayor, shows that the Court is in agreement. Property comes first.

-Rachael Westmoreland is a General Member on MJEAL. She can be reached at

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Benefits of Rail-Trails, Rails-to-Trails Conservancy (Apr. 9, 2014),

[ii] Bill Chappell, Family Trust Wins Supreme Court Fight Against Bike Trail, The Two Way- Breaking News from NPR (Mar. 10, 2014),

[iii] Id.

[iv] Jenna Greene, Rail-to-Trails Program Costly to Taxpayers; what could go wrong adapting old railway lines for recreation?, Nat. Law J. (2013).

[v] Id.

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