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Supreme Court Deals Massive Blow To Rails-to-Trails Programs
March 10, 2014 12:37 PM   Subscribe

Rails-to-Trails Essentially Told To Take A Hike
"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."
The Supreme Court struck a decisive (8-1) blow against rails-to-trails programs today with its ruling on Marvin Brandt Revocable Trust v. United States.

The case was brought forth by a Wyoming landowner who was okay with a railroad traveling through his property but did not want it converted to a bike path. In their analysis, SCOTUSblog said the decision was largely forced by the court's 1942 ruling on Great Northern Railway Co. v. United States. The decision could cost the government to pay compensation up to "hundreds of millions of dollars."

There are currently over 20,000 miles of trails converted from railroad right-of-ways, and another 9000 in various stages of planning. There's probably a trail near you.
posted by entropicamericana (95 comments total) 9 users marked this as a favorite

 
I didn't have high hopes for the ruling, but this still stings. NIMBY is a scourge.

Cyclists should still support Rails to Trails, though. They put out nice literature and maps, and are fighting for individuals.
posted by planetesimal at 12:42 PM on March 10 [5 favorites]


Yeah I don't know about this one. I ride, and I'm a supporter of Rails-to-trails, but the part where the government decides to try and change the purpose of the easement makes me nervous.

This though:
"They want to bring a train through here, that's fine. We never expected and we never agreed to a bicycle trail."
Is pretty hilarious.
posted by Big_B at 12:46 PM on March 10 [30 favorites]


They want to bring a train through here, that's fine. We never expected and we never agreed to a bicycle trail.

Sure, because bicycles are sooooo much more dangerous and annoying than trains.
posted by ubiquity at 12:47 PM on March 10 [21 favorites]


This is the kind of thing that makes me want to be a bored billionaire, just so I could I buy up the defunct rail company and reactivate a _very_ short-haul railway.
Maybe one that ferries bicyclists from the end of the trail at their property to the continuation on the other side.

Complete with signaling train horn.
For safety, of course.
posted by madajb at 12:49 PM on March 10 [114 favorites]


There are different concerns involved in hosting a bike trail than a railway. Less noise, less smoke, more litter, more uninvited individuals wandering around beyond the easement. (Whereas the train will very rarely go off the easement)
posted by Holy Zarquon's Singing Fish at 12:49 PM on March 10 [57 favorites]


Easy solution: Build a flatbed train car with bicycle treadmills built into it.
posted by Rock Steady at 12:50 PM on March 10 [7 favorites]


This doesn't seem like a large blow to rails-to-trails, at least the ones I have experience with. In my area, it's usually a known transfer of rights from the railway to the rails-to-trails program, with caveats laid (like removable surfaces, etc. in case the rails are recommissioned). This case is something entirely different, wherein the rails-to-trails path was going to cross an easement that had been abandoned previously, that the railroad company no longer had claim to: it's as if I'd borrowed your car, gave it back, and then claimed that I hadn't given it back and I needed to lend it to my aunt Sue.

Sure, because bicycles are sooooo much more dangerous and annoying than trains.

They're different. Trains go through on a set schedule, they tend to have predictable intentions, and so on. Having an unpredictable flow of strangers across your property is different: some will be vandals, some may be dangerous, some will wander from the trail and fall down a hole and sue you into oblivion.
posted by sonic meat machine at 12:50 PM on March 10 [33 favorites]


Not especially germane to the FPP, but Rails to Trails had always given me a warm-fuzzy, until a lefty eco-type once explained to me how the organization was really on the inside with the auto industry, working to dismantle all the railways to push more transit onto the roads and further diminish the relevance of train travel. I'm still not sure how much I believe that.
posted by slogger at 12:51 PM on March 10 [4 favorites]


While I agree that NIMBY is a problem in general, I think it's a little more justifiable in cases where it actually is someone's, you know, back yard.
posted by kiltedtaco at 12:51 PM on March 10 [12 favorites]


A lot of people don't remember in the original "don't tread on me" poster, there was a tandem bicycle right next to the snake.
posted by phaedon at 12:54 PM on March 10 [5 favorites]


There are different concerns involved in hosting a bike trail than a railway.

I can also see how someone would see having a railroad nearby as a benefit to themselves such that they were willing to grant an easement, while they see don't see bike trails as personally beneficial in the same way.
posted by jacquilynne at 12:54 PM on March 10 [4 favorites]


Sure, all those bikes will be bringing the farmers cattle to market for her.
posted by Confess, Fletch at 12:58 PM on March 10


It should be worth pointing out that there is correlation between bicycle trails and increased property values and raiilroads and decreased property values.

Given the landowner is from Wyoming, I assume the only Gadsden flag around is the one on his Ford F-350.
posted by entropicamericana at 12:59 PM on March 10 [4 favorites]


Trains go through on a set schedule,

You've obviously never worked for a railroad.
posted by Pogo_Fuzzybutt at 1:00 PM on March 10 [23 favorites]


Not especially germane to the FPP, but Rails to Trails had always given me a warm-fuzzy, until a lefty eco-type once explained to me how the organization was really on the inside with the auto industry, working to dismantle all the railways to push more transit onto the roads and further diminish the relevance of train travel.

Further diminishing the relevance of train travel is like further diminishing the relevance of professional soccer. That ship, so to speak, has sailed.
posted by Etrigan at 1:00 PM on March 10 [10 favorites]


Easy solution: Build a flatbed train car with bicycle treadmills built into it.

Already a thing. Unfortunately, it sounds like the rails have already been removed in this case.

until a lefty eco-type once explained to me how the organization was really on the inside with the auto industry, working to dismantle all the railways to push more transit onto the roads and further diminish the relevance of train travel

One of the uses of rail trails is rail banking, which preserves unused easements/rights of way that might otherwise revert. So creating a rail trail can actually preserve a railroad easement. If the auto industry is behind a sinister rail-trail conspiracy, I think they could do a better job of it.

Also, trails may have been unused as railways for years before the rails to trails people start up. (Which seems to have been the case in this case -- the easement reverted after five years.)

Around my area rail trails are of definite net economic benefit to neighboring properties -- some advertise offices on the rail trail, some put out soda machines, and real estate listings mention them as desirable features. But I can see it being very different out west. I'd be worried about fire, myself.
posted by pie ninja at 1:00 PM on March 10 [6 favorites]


What's most sad is not that we'll have fewer bike trails (though that is sad), but that these rights of way are basically irreplaceable in a country that is vastly more populous than it was when they were established. Bike trails, trains, roads, canals, monorails, pneumatic tubes, mass drivers—there are a lot of things that you can do when you have an easement going hundreds of miles in a straight-ish line, and that become completely infeasible when you have to deal with hundreds of individual landlowners to try to acquire that easement.
posted by enn at 1:02 PM on March 10 [39 favorites]


Having an unpredictable flow of strangers across your property is different: some will be vandals, some may be dangerous, some will wander from the trail and fall down a hole and sue you into oblivion.

Because people like this never wander along railroad tracks.
posted by RolandOfEld at 1:02 PM on March 10 [13 favorites]


Sure, because bicycles are sooooo much more dangerous and annoying than trains.

Number of times walking a trail (or hell, even walking along a railroad track) in which I've almost been hit by a train=0
Number of times walking a trail in which I've almost been hit or HAVE been hit by a bike= more than 20

just sayin'
posted by HuronBob at 1:03 PM on March 10 [4 favorites]


You've obviously never worked for a railroad.

All the live-long-day or otherwise.
posted by Jahaza at 1:04 PM on March 10 [6 favorites]


HuronBob: Number of times walking a trail (or hell, even walking along a railroad track) in which I've almost been hit by a train=0
Number of times walking a trail in which I've almost been hit or HAVE been hit by a bike= more than 20

just sayin'


Compare the statistics for bicyclist-on-pedestrian fatalities with those of train-on-pedestrian fatalities and get back to me.
posted by Mitrovarr at 1:06 PM on March 10 [18 favorites]


annoyance != life-threatening.
posted by anthill at 1:07 PM on March 10 [2 favorites]


I wonder why the question of what happens when the railroad leaves was left completely up in the air in the first place - surely the question had to come up at some point when they were writing the law.
posted by jason_steakums at 1:09 PM on March 10


I'd be worried about fire, myself.

I know this isn't what you meant, but I'm imagining a bike fire on the side of the path, traffic backed up for hundreds of feet in either direction, cyclists scuttling past rubbernecking.
posted by backseatpilot at 1:10 PM on March 10 [20 favorites]


C'mon guys, this is an easy one. You don't need to turn the tracks into bike trails, you need to turn your bike into a train.
posted by furnace.heart at 1:11 PM on March 10 [6 favorites]


> until a lefty eco-type once explained to me how the organization was really on the inside with the auto industry, working to dismantle all the railways to push more transit onto the roads and further diminish the relevance of train travel. I'm still not sure how much I believe that.

That seems pretty suspect. Rails to Trails is about using defunct rails, not pushing any active service lines out.
posted by planetesimal at 1:11 PM on March 10




I wonder why the question of what happens when the railroad leaves was left completely up in the air in the first place - surely the question had to come up at some point when they were writing the law.

The law in question is from 1875, when no one had any idea that railroads would ever not be necessary.
posted by Etrigan at 1:12 PM on March 10 [7 favorites]


I wonder why the question of what happens when the railroad leaves was left completely up in the air in the first place - surely the question had to come up at some point when they were writing the law.

I don't know, I'd imagine the railroad as an institution looked pretty permanent at the time. I'd bet that the planners of the interstate highway system also didn't spend a lot of time thinking about what happens when interstate highways become obsolete—as they certainly will, one way or another, sooner or later.
posted by enn at 1:12 PM on March 10 [1 favorite]


This doesn't seem like a large blow to rails-to-trails, at least the ones I have experience with. In my area, it's usually a known transfer of rights from the railway to the rails-to-trails program, with caveats laid (like removable surfaces, etc. in case the rails are recommissioned).

Yeah, but in areas where the railroad doesn't own the land under the track outright but only has an easement or similar usufruct*, it isn't clear (to me) that they can transfer the rights to create and run a bicycle and/or walking trail. For the simple reason that they may never have had those rights to start with.

*love that word
posted by ROU_Xenophobe at 1:14 PM on March 10 [6 favorites]


I don't miss many things about BC these days, but I'll always miss biking from Metchosin to downtown Victoria via the Galloping Goose to see my first real boyfriend. That trail was magical; flat and straight with these lovely slightly overgrown trees and bushes fully meeting overhead for long stretches. Just a gorgeous sunny tunnel through the woods to ride on when you're ridiculously young and immortal and in love.

Anyone against that sort of thing is a Bad Person.
posted by feckless fecal fear mongering at 1:14 PM on March 10 [27 favorites]


It's really a pretty simple question of boilerplate property law. The railroad right of way was an easement, not a grant, as determined by another case 70 years ago where the railroad wanted to drill for oil on their right of way and the government sued (successfully) to shoot them down. But since it's an easement, once it's been formally abandoned for 5 years it disappears. This is the nature of easements which only exist in order to promote a specific public good, which in this case was moot when the railroad shut down and tore up the tracks. There has to be some limit at which the landowner can go ahead and use the land without worrying that someone will come along and want to build something else on it.

The implications for R2T are annoying but not catastrophic, as the easements can still be preserved by simply not abandoning them. Had it gone the other way there would be very bad implications for people who think they own the land they've improved who might just be told otherwise at some indefinite point in the future.
posted by localroger at 1:14 PM on March 10 [12 favorites]


The other sketchy bit about this particular trail is that the Forest Service didn't notify the landowner that they were building the bike trail. From this article:
The railroad stopped running in 1995 and was formally abandoned in 2004.

In 2005, the Forest Service proposed the bicycle trail's route, which bisected Brandt's property where the railroad formerly ran. Brandt claims the Forest Service "kept it a secret" from him.

Later that year, in a February 2005 letter, the service apologized for not putting Brandt on its "distribution list."

"It was an oversight on our part," it wrote in a letter shared by Brandt.

In the middle of 2006, the Forest Service asked a federal court to declare its ownership of the right of way, citing a reversionary interest in the 1875 law.
posted by Ham Snadwich at 1:17 PM on March 10 [2 favorites]


Sure, because bicycles are sooooo much more dangerous and annoying than trains.

Where I grew up, a good friend of mine has a house along (what was) an old abandoned railbed.
The tracks were long gone, the railbed graveled over, and other than the occasional ATVer, and some neighborhood folks using it as a shortcut, it pretty much just served as a path for wildlife.

However, the area has become a hotbed of rail-trail conversions, there was much fund-raising, and the old railbed is now a 30 some-odd mile trail connected to other longer trails.
It is busy from dawn to dusk with people not from the neighborhood, they've had to put up fencing to stop people taking shortcuts through their yard and not infrequently, people knock on the _back door_ asking to use the bathroom.
It has definitely impacted their quality of life.

The point is that "just bicycles and walkers" can in some ways be worse than the occasional train, in ways you wouldn't expect.
posted by madajb at 1:22 PM on March 10 [32 favorites]


In 2005, the Forest Service proposed the bicycle trail's route, which bisected Brandt's property where the railroad formerly ran. Brandt claims the Forest Service "kept it a secret" from him.

Later that year, in a February 2005 letter, the service apologized for not putting Brandt on its "distribution list."


So, sometime between January 1, 2005, and February 28, 2005, the government proposed a route, and at some later time within that same period they notified the landowner. In the worst case scenario, if the route was proposed on January 1 and the letter sent on February 28, it took them a whopping 59 days to notify him. Cry me a fucking river.
posted by enn at 1:27 PM on March 10 [7 favorites]


The implications for R2T are annoying but not catastrophic, as the easements can still be preserved by simply not abandoning them.

As you note, though, the government has previously argued (successfully) that easements are only for particular purposes.
posted by Etrigan at 1:28 PM on March 10 [1 favorite]


Further diminishing the relevance of train travel is like further diminishing the relevance of professional soccer. That ship, so to speak, has sailed.

Not true, within cities. There are disused rail lines in cities that could be adapted to light rail or other public transport very quickly and at a low cost.

Converting these to trails would be tragic. But it's hard to fight these cases because a new trail gives people warm fuzzies (as stated above); it's greenwashing.
posted by Pruitt-Igoe at 1:29 PM on March 10 [6 favorites]


As you note, though, the government has previously argued (successfully) that easements are only for particular purposes.

Otherwise the easement that Comcast has through your property could be repurposed for an oil pipeline.
posted by Ham Snadwich at 1:33 PM on March 10 [2 favorites]


Sure, because bicycles are sooooo much more dangerous and annoying than trains.

I think people have shown, it's not that bicycles are more dangerous and annoying than trains, it's that bicyclists are more dangerous and annoying than train passengers.

It should be worth pointing out that there is correlation between bicycle trails and increased property values and raiilroads and decreased property values.

Hmm, you're right, the conversion would increase property taxes while offering no actual improvement to the landowner.
posted by kafziel at 1:34 PM on March 10 [5 favorites]


Whereas the train will very rarely go off the easement

But when they do….Hoo, boy!
posted by wenestvedt at 1:34 PM on March 10 [9 favorites]


"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."

I suppose it is possible that quote makes sense in context, but I have my doubts.
posted by ckape at 1:35 PM on March 10 [15 favorites]


Hmm, you're right, the conversion would increase property taxes while offering no actual improvement to the landowner.

Impressive. Most impressive. *holds up a card with a 10 printed in large block letters on it*
posted by entropicamericana at 1:36 PM on March 10 [6 favorites]


This though:
"They want to bring a train through here, that's fine. We never expected and we never agreed to a bicycle trail."
Is pretty hilarious.


If there's a concern here, it's probably that the stated purpose of the bike trail is to bring many more members of the public onto (what could be) your private property. One person on a moving train isn't going to stop and bring his friends.

If one says that is an unlikely worry, I would certainly worry 1) when I don't have an ability to say who does and doesn't have direct access to my property because it's open to the public and 2) how the rules for how that land is used can change on the whim of a government, bringing with it who-knows-what social factors. Social conditions do change, and the time to challenge something isn't 20 years later after nothing after the land was re-appropriated.
posted by SpacemanStix at 1:40 PM on March 10 [2 favorites]


I suppose it is possible that quote makes sense in context, but I have my doubts.

Picture these guys on fixies and penny-farthings. I'm told it happens all the time in Portland.
posted by entropicamericana at 1:44 PM on March 10


I currently live on a road that is essentially a frontage road for Highway 101 and bike route to the popular Bob Jones Bike Trail, and as such, has far more bicycle traffic than car traffic. Basically 0.01% of bicyclists passing by stop here for any purpose, even with a 75-foot wide parking area that opens directly onto the street. And when I go out to my mailbox, facing the street, I stand in the bike lane and no oncoming bike has ever proven to be a threat to me. I also have lived for a year about 50 yards from an active train track. At any time then, I would have celebrated replacing it with a bike trail, but even more so now that I know what bike trail adjacency is like. From my personal viewpoint, the arguments against more bike trails smell as much like the fictional creations of fossil-fuel profiteers as the arguments against human-caused Climate Change.

"I don't have an ability to say who does and doesn't have direct access to my property because it's open to the public "
I'd never buy a 'property' like that, myself. But then, I don't include "control over public lands" as part of "property rights".
posted by oneswellfoop at 2:02 PM on March 10 [5 favorites]


You've obviously never worked for a railroad.

Or perhaps even taken one much. Anyone who has engaged me in a discussion of rail travel will sooner or later have heard of the time my train was five hours late, but because I was waiting for it in Brandon, Manitoba -- with a topography comparable to the surface of a pool table -- I could see it the whole damn time

This is not a new thing, either. W. S. Gilbert (of Gilbert and Sullivan fame) began a letter of complaint over a century ago with, “Sir, Sunday morning, although recurring at regular and well foreseen intervals, always seems to take this railway by surprise.”
posted by ricochet biscuit at 2:03 PM on March 10 [9 favorites]


oneswellfoop, the bike path in front of your house is public property adjacent to your property. It's not an easement running through your property.
posted by Pruitt-Igoe at 2:06 PM on March 10 [5 favorites]


Whereas the train will very rarely go off the easement

But when they do….Hoo, boy!


But, at the very least, you know exactly who's responsible, and they'll have some sort of insurance for just that kind of thing to remediate any damage.
posted by LionIndex at 2:21 PM on March 10 [1 favorite]


But, at the very least, you know exactly who's responsible, and they'll have some sort of insurance for just that kind of thing to remediate any damage.

I can see this exact line being used to describe the sanguine outcome of an accident to people who said that maybe oil rig accidents would be problematic for coastal dwellers.
posted by RolandOfEld at 2:29 PM on March 10 [1 favorite]


I've gotta say, "no, you can't just change the reason for an easement and still keep it" definitely seems like a net good, and also, the opposite ruling would've been a pretty shitty way to deal with the very real problem of NIMBYism blocking progress. Not sure what a good solution to that looks like, but playing fast and loose with easement law seems like an ill-advised shortcut that opens the door to a lot of abuses.
posted by jason_steakums at 2:34 PM on March 10 [13 favorites]


Oil drilling is a poor comparison.

A telecommunications company can upgrade their lines from copper to glass fibre, and no one bats an eye. It’s still serving the purpose of telecommunications.

If bicycle traffic replaces train traffic on a railway easement, that easement is still serving as a transportation corridor.

That’s not a perfect comparison either, but it’s a lot better.
posted by Fongotskilernie at 3:12 PM on March 10 [4 favorites]


This though:
"They want to bring a train through here, that's fine. We never expected and we never agreed to a bicycle trail."
Is pretty hilarious.


If you have livestock or other potentially attractive/ dangerous things on your property then yeah, a train is no big deal but a bunch of strange people? That is a HUGE problem. You'd have to fence the trail or educate the American public. You'd also have to change all kinds of liability laws as they relate to "attractive nuisances". I'm a big proponent of public right of ways but this would be a fucking nightmare. At the very least if want the entire right of way fenced with appropriate fencing plus any pass overs or crossings installed and maintained with no charge to me.

It would be one thing if you bought the land knowimg a trail went throught it.
posted by fshgrl at 3:13 PM on March 10 [8 favorites]


A telecommunications company can upgrade their lines from copper to glass fibre, and no one bats an eye. It’s still serving the purpose of telecommunications.

If bicycle traffic replaces train traffic on a railway easement, that easement is still serving as a transportation corridor.


The difference between copper and glass fiber is zero to the property owner. The difference between a train track and a bicycle path is more than zero.
posted by Etrigan at 3:18 PM on March 10 [3 favorites]


Yes, folks, I know trains can be late. I lived for much of my childhood next to a track. It still doesn't change the fact that trains are a lot more predictable than a stream of random cyclists, backpackers, cavers, campers, hunters, and ATV maniacs. Some of these people may use the rails as well, of course, but it's not the stated purpose, and you've got two private entities trying to discourage trespassing instead of one property owner who needs to put up fences to keep people out of their property (and could still be sued if someone jumps the fence and falls in a ditch, or goes into a cave and dies, etc.).

Hell, just the amount of litter that would be generated by a bike trail would be annoying, especially if there are streams and gullies where people will feel free to dump any shit they happen to have on hand.
posted by sonic meat machine at 3:20 PM on March 10 [1 favorite]


If a trail is on a rail-banked line, it can be converted back to a rail line at any time- it's part of the law and part of the deal.

In my neck of the woods, an abandoned rail line causes more trouble - ATV's, vandalism, littering, drunken carousing - than if the line is converted to a rail trail. Many of those at first fearful of the rail trail find it much more pleasant than an uncontrolled abandoned rail bed. Results of course vary, and there are also reports of bikers and hikers holding picnics on people's back yard tables.

Some rail lines are not easements at all, but fully-owned property and I know some folks who have leased a privately-owned rail line for a bike/hike trial. The lessees get to control access and set rules, and they aren't subject to nimby challenge.

Though it is yet to be seen how well this works out, the neighbors are pleased that the part of the trail so far developed is closed to ATV's, dirt bikes and snowmobiles.
posted by tommyD at 3:22 PM on March 10 [1 favorite]


One more thing:

I'd be worried about fire, myself.

Railroad trains are a major cause of wild fires, not so much as in the days of steam, but wheels still throw blobs of hot metal into dry vegetation.
posted by tommyD at 3:28 PM on March 10


The difference between copper and glass fiber is zero to the property owner. The difference between a train track and a bicycle path is more than zero.

More than zero, yes, but there’s a non‐zero difference when railroads changed from steam locomotives to diesel.

I would argue that diesel was a change for the better, but then again, I’d say the same about trains to bicycles.

So steam to diesel is okay, but what about electrifying the route and turning it into a light railway? What about high‐speed rail?

Take the argument to its logical extreme and you end up with backyard canals, airstrips, and space ports. You have to draw the line somewhere, and that involves making a value judgement.
posted by Fongotskilernie at 3:36 PM on March 10


"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."


Yes, because no one has ever been put out of their home for eminent domain purposes. Well, no rich person, anyway.
posted by Mental Wimp at 3:46 PM on March 10 [1 favorite]


"For all I know, there is some right of way that goes through people's houses"

It's funny but in some places there is exactly this situation. Or was until recently. A few years ago, the real estate lawyers in Vermont were sorting through a situation caused by the VT supreme court ruling that the de-certification of highways was ineffective unless everything was done strictly by the rules. Well, the problem was that some of the "highways" had been established by the state legislature two hundred years ago, were de-certified almost-but-not-exactly correctly a hundred years ago, had long since passed into oblivion everywhere but the law books, where they continued to live on in the form of "thence two hundred yards past the hickory tree on the Hiram Smith farm". As I recall, some of those "highways" went right through the houses that were there now, with nary a physical trace. Though to my knowledge no one tried to revive them in the form of a bike trail. [/cool story bro]
posted by bepe at 4:08 PM on March 10 [2 favorites]


Pretty sure that Breyer quote is from a Mississippi John Hurt song.

For all I know baby, there is some right of way that goes through people's house
For all I know honey, there is some right of way that goes through people's house, hoo
For all I know baby, there is some right of way that goes through people's house

Gonna ride that train, ride it down the rail.
I go down the path, all the way to the trail.
I get on my bike, past their houses I do roam.
Gonna ride my bicycle, run it all of a sudden through their home.

...might've Fred McDowell.
posted by Smedleyman at 4:16 PM on March 10 [3 favorites]


"Transportation" is really, really vague. Bike trails are not generally used for the purposes of people getting from point A to point B, they're used for the purposes of going out and enjoying yourself riding your bike, usually.

A lot of states, in the wake of Kelo, made state laws that forbid doing what Kelo allowed, which was eminent domain purely to give the land to someone who was going to engage in "economic development". In other words, they could force you to give up your house to build a Walmart because jobs. If you throw in another backdoor that a government can get an easement for one purpose and then use it for other things as long as it has the easement, then, well, no, I don't really trust some local government not to figure out that it, say, has an easement for the purposes of an access road, and then it closes the access road when it goes unused and instead leases that spot out to a company that puts in a shopping center?

When you're as cash-strapped as a lot of localities are, you get creative, sometimes in really destructive ways. The Kelo development deal ended up costing the area tens of millions and never produced any of the promised results in either jobs or tax revenue, so they knocked down a bunch of people's houses and forced them to move for nothing. I'm generally pretty socialist, but this is one area where I prefer for there to be more strict guidelines as far as what the government can and can't do.
posted by Sequence at 4:38 PM on March 10 [5 favorites]


You know, in most places the sidewalk in front of your house is a public easement on your private property. Lord help us if pedestrians or bicyclists were to have access to it. Think of all the vandalism.

"That is a HUGE problem. You'd also have to change all kinds of liability laws as they relate to "attractive nuisances". I'm a big proponent of public right of ways but this would be a fucking nightmare. At the very least if want the entire right of way fenced with appropriate fencing plus any pass overs or crossings installed and maintained with no charge to me."

On your sidewalk. Oh, the humanity!
posted by JackFlash at 4:45 PM on March 10 [2 favorites]


And you know who voted in favor of Kelo?

That's right!
posted by entropicamericana at 4:54 PM on March 10 [1 favorite]


There are differences between the sidewalk and a rural bike trail. First, in areas where your house is fronted by a sidewalk, population density is pretty high: there is a lot of traffic, which gives rise to an "eyes on the street" effect. Ever notice how crowded streets feel safe and abandoned ones don't? Well, imagine that you're in the middle of the country with no neighbors for miles in a place where police response might be measured in hours. This is more isolated than even the most desolate street in a major city.

Second, litter and trash is handled by people who are actually hired to do that—sanitation services and street cleaners. They don't always do a great job (Philly, you're a beautiful city, but seriously), but there is at least someone to do it. If you're in the middle of nowhere and some asshole throws a bag of used condoms and beer cans into a stream on your property, that's all yours, buddy!

Third, the sidewalk is a public good that benefits you as much as anyone else. You can walk down to the corner cafe or a few blocks to the park. It is part of the city that you apparently value, since you've bought a house there. On the other hand, a bike trail bringing people through your private property is a public good for other people that has no discernible benefit for you, the property owner. After all, you could already ride a bike on your property if you wanted to do so.

Fourth, and most vitally, the sidewalk was an aspect of the place that you took into consideration upon purchase or lease. Even if you hate sidewalks, you looked around and said: "Okay, there's a sidewalk here, but I'll take it." Building a sidewalk through your yard after you bought it would probably merit a little more comment.
posted by sonic meat machine at 4:56 PM on March 10 [10 favorites]


Sidewalks don't run through pastures or farmyards typically. That would be a significant safety issue on a busy trail. Especially in the US where people tend to be fucking clueless about farm animals and laws do not favor the landowner.

I'm a big trails advocate, I bet I've spent more time than about anyone on this thread volunteering for trails. But people are morons and if someone wanted to run a new trail through my place on a path of their choosing? I'd fight it too.
posted by fshgrl at 5:09 PM on March 10 [3 favorites]


so they knocked down a bunch of people's houses and forced them to move for nothing.

Yeah, I think that's the thinking here. Sort of the "do you even know wtf you have or don't have?" F'rinstance:
The wider impact of the ruling is difficult to estimate, partly because the U.S. government doesn't have a central database of the land it owns under such circumstances...

So you've got what essentially the railroad blew off, with no guidance on the property rights if they do that, and no real idea of how to plan the hybrid transportation system because you (the government) don't know who owns what, where.

What do they do all day? Oh, boy let's start a rail to trail system. Sounds great. So, we just write legislation and hope for the reality picture then?

I Love, capital L, Love this as an idea. I think it's the new wave. I think without it when the SHTF and we realize we're not going to live the same way for the next 200 years vast numbers of people are not going to be able to move any long distance without it.

But damn, any vagaries are gonna bite you hard, particularly with property rights.

I expect they'll go back to court again with another case where they've hammered out the uncertainties in the law and make more specific and comprehensive plans (including potential damages, land management agencies' responsibilities, etc.)

Take the Appalachian Trail (the real one, not the cheatin' on your wife one). Rangers have wide latitude to act on their own authority. They're federal officers so anywhere along the 2,100 miles they can get involved.
Additionally, people on the trail can self-police if the boundaries are well marked and have contact information displayed for emergencies and so forth.

In the FPP case, who does the guy call if someone chucks the bag'o'condoms and beer cans (to be fair, one man's trash is another man's internet fetish, Rule 34 on the Hamm's Beer Bear) onto his property?

What's irritating is that all this kind of stuff could have been hashed out before.
Run it like the A.T., coordinate with railroad officials, Forest Rangers, Wyoming Parks have some 8,500 miles of trails - coordinate those agencies, 99 (?) percent of it is federal land so it's mostly on the Rangers but regional trail supervisors could have input. On top of that you have a local conservancy club who can document (phone cam!) dumping, trespass, and other problems.

Naaah. Why look at the way it could work before bullcharging ahead with legislation then muscling people who kick at it and blow all kinds of taxpayers money when you lose?

I hear people who say government should be run like a business all the time. And usually it's idjits like this and the Kelso people. Like people who live there are in the way of progress the way all them trees in the way of the scenery.

It'd work great too. I take down a moose (well, not anymore thanks to developers, but you get the idea) and Joe Property owner pays me a visit while I'm skinning it, he's not going to be in a happy mood. But if I called him, asked for permission to be near/on his land and left him a walkie talkie to keep him advised of our movements, he's going to be in a much nicer mood when I dump a hunk of steak on him in thanks.
posted by Smedleyman at 5:35 PM on March 10 [3 favorites]


The 'trains are fine, but not bikes' quote is pretty funny, but to be clear, the railroad was abandoned since 1995. The family here has enjoyed peace and quiet for almost twenty years, it's not like they're choosing between bikers and a literal train.
posted by mrbigmuscles at 6:14 PM on March 10 [1 favorite]


I am all about trails access, but if it was my land I wouldn’t be. That’s the whole point of public land. It’s kind of weird to say "hey, there used to be a train here 20 years ago, and we had permission for that, so that means we can do whatever we want here".
posted by bongo_x at 6:23 PM on March 10 [4 favorites]


So, I kind of get how this particular rail line to bike trail scheme failed, especially given the abandonment of easement. For other rails-to-trails, does the legal framework that preserves these easements protect them from claims of abandonment? What's the status going forward?
posted by klangklangston at 6:26 PM on March 10


I like R2T the concept is fantastic, however I think this was the correct ruling. An easement is not a public right of way unless very specifically defined as such.
I recently bought 10 acres of land to build on in the future. I was able to afford it because there is a natural gas pipeline easement on part of it. We did due diligence and decided we could live with it because even though it has been used as a snowmobile right-of-way when no one has occupied the property the only people that actually have rights to acess that easement land are the owners and the pipeline folks for rare maintence. If R2T or some other organization came along long after the pipeline was decommissioned and unilaterly decided they had rights to allow though hikers access along that line I too would be quite upset.
All this ruling means is R2T must actually negotiate with landowners like any other trail system, or easement seekers rather then just assume they can go anywhere defunct rail lines where.
I hope R2T prospers and expands from coast to coast but they can't unlilaterly repurpose land to achieve their goals
posted by edgeways at 6:34 PM on March 10 [2 favorites]


wenestvedt: "But when they do….Hoo, boy!"

I was going to post that. Verbatim.
posted by notsnot at 7:02 PM on March 10 [1 favorite]


The Supreme Court struck a decisive (8-1) blow against rails-to-trails programs today with its ruling on Marvin Brandt Revocable Trust v. United States.

FWIW this is a very exaggerated summary of the impact of this opinion.

A more fair summary is that it doesn't affect the main and most common type of rail-to-trail project at all ('railbanked' trails), it also doesn't affect another common situation (where the railroad owns land outright), but in a third situation (which I won't try to describe because it is sorta complicated) it does create some serious problems, though far below what you would normally call a 'decisive blow'.

More info in the Rail to Trail Conservancy's summary of the decision.
posted by flug at 7:14 PM on March 10 [2 favorites]


We did due diligence and decided we could live with it because even though it has been used as a snowmobile right-of-way when no one has occupied the property the only people that actually have rights to acess that easement land are the owners and the pipeline folks

And there is a huge difference between what amounts to a locals path for locals and a trail being aggressively marketed to the general public and tourists.

Smmedley I think you are spot on comparing this to the Appalachian trail re enforcement issues.
posted by fshgrl at 7:23 PM on March 10


It's really a pretty simple question of boilerplate property law.

The trial court, a three-judge appellate court, and a Supreme Court justice ruled in the government's favor. I haven't studied the case closely but this alone suggests it was not so simple.
posted by brain_drain at 7:24 PM on March 10


For other rails-to-trails, does the legal framework that preserves these easements protect them from claims of abandonment?

For most rail-to-trail conversions, at least in our part of the country (and within the U.S.), the railroad right of way is 'railbanked.'

That is exactly what it sounds like. You take the right of way and formally/legally declare that you're going to 'put it in the vault' for potential later railroad use. In the meanwhile, you're going to use if for a trail or whatever. This is called 'interim trail use.' But formally/legally it remains a part of the federal railway system.

A railroad right of way that is 'railbanked' is not formally abandoned at all, remains legally a part of the federal railroad system, and is not affected by this ruling at all. This ruling applies to trails on railroad right of way where, for whatever reason, the opportunity to railbank the line was missed.

Part of the idea behind railbanking is that railroad rights of way are a bit like Humpty Dumpty. They are easy to take a part but almost impossible to ever put back together again. Even if you can't really think of why you need that corridor for the next 5 or 10 years, or even 25 or 50 or 100, it's still a wise move to keep that contiguous corridor together and intact.

A little more info on railbanking at wikipedia.
posted by flug at 7:25 PM on March 10 [5 favorites]


The trial court, a three-judge appellate court, and a Supreme Court justice ruled in the government's favor. I haven't studied the case closely but this alone suggests it was not so simple.

The fact that three courts all agreed on the conclusion argues that it was somehow difficult or controversial?

The main question is why the SC granted certiori and issued a ruling at all. This probably happened because of the level of public ruckus about the implications for R2T, thus the somewhat hyperbolic OP. But no, the law is pretty straightforward on this matter and all the courts that have ruled on the case have agreed on the conclusion.
posted by localroger at 7:33 PM on March 10


If a right of way has been railbanked, is it generally usable as any other kind of right of way? Can the government say "I have this right of way for a rail line, and I'm not using it for trains now, but I'm holding on to it for the future. Until then, I'm letting cyclists use it"?
posted by jeather at 7:34 PM on March 10 [1 favorite]


localroger: You are incorrect. The Supreme Court reversed the decision of the court of appeals. Both lower courts ruled the opposite way. Read the decision (or even just the syllabus).
posted by brain_drain at 7:45 PM on March 10 [1 favorite]


I wonder why the question of what happens when the railroad leaves was left completely up in the air in the first place - surely the question had to come up at some point when they were writing the law.

Like the question of what to do with all the roads after flying drones render them obsolete. That's been written into laws and contracts for decades now. No? Wait, what do you mean no?
posted by newdaddy at 8:19 PM on March 10


brain_drain: Sorry, I was using a recent comment as a reference. Not a good idea, touche.
posted by localroger at 8:56 PM on March 10


Although I guess that does explain why the SC heard the case. Those decisions were just all kinds of wrong under long-established law.
posted by localroger at 8:57 PM on March 10


Like the question of what to do with all the roads after flying drones render them obsolete. That's been written into laws and contracts for decades now. No? Wait, what do you mean no?

Well... yeah. Roads have been getting closed for ages and that has been written into laws and contracts for decades. Generally once the road meets whatever criteria for abandonment is written into the relevant laws (is the road still in use by the public, is the road important for emergency services, that kind of thing) the land reverts to the property owners. But if anyone's waiting on drones to make roads irrelevant so they can get their land back, they're gonna be waiting for quite a while yet.
posted by jason_steakums at 9:25 PM on March 10 [1 favorite]


oneswellfoop, the bike path in front of your house is public property adjacent to your property. It's not an easement running through your property.

That's not necessarily true. At least, not here in Washington State, and I don't think it is in California either.

Here, you generally hold title all the way to the center line of the street, and the public has an easement through your property (namely, the right of way).

So having a road run in front of your house isn't really different from having a trail behind your house, legally speaking.
posted by neal at 9:45 PM on March 10


You know, in most places the sidewalk in front of your house is a public easement on your private property. Lord help us if pedestrians or bicyclists were to have access to it.

Bicyclists can't legally ride on the sidewalk in front of my building. They'd probably hit some young children.
posted by John Cohen at 9:48 PM on March 10 [1 favorite]


HuronBob: "Number of times walking a trail (or hell, even walking along a railroad track) in which I've almost been hit by a train=0
Number of times walking a trail in which I've almost been hit or HAVE been hit by a bike= more than 20
"

This is a completely nonsensical comparison if only because of the selection effects of people hit by trains not posting to metafilter.

Sequence: " Bike trails are not generally used for the purposes of people getting from point A to point B, they're used for the purposes of going out and enjoying yourself riding your bike, usually"

This is a very car centric view point. Lots of people cycle for transportation and will use trails to that end. Even in rural areas because the alternative often is cycling on a highway or (shudder) limited access freeway.

EG: I used the Galloping Goose every week to get to work when I lived in Victoria.
posted by Mitheral at 9:57 PM on March 10 [5 favorites]


I love rails-to-trails. It's a fantastic idea, and has opened up a whole lot of wonderful places to many more people.

That said, I'm on Brandt's side. They agreed to use his property under certain terms, and he abided by (more likely: was forced to swallow) those terms until they ended. His claim is first and legitimate.

Had he been approached straightforwardly and forthrightly, he might have been convinced to do the better thing. Now he has every reason to suspect motivations and resist. Good decision.
posted by Twang at 11:19 PM on March 10 [2 favorites]


Can the government say "I have this right of way for a rail line, and I'm not using it for trains now, but I'm holding on to it for the future. Until then, I'm letting cyclists use it"?

That was the central question of this case.

The law seems pretty clear when the government has granted a right of way on either government or private property. After abandonment the ROW reverts to the original property owner, either the government or the private owner. In this case the ROW was granted when it was federal property, then deeded to Brandt in a land swap in 1976.

The Forest Service claimed the government had a revisionary interest in the easement. Brandt claims that since the Forest Service didn't include anything about a revisionary interest when they transferred the property, none exists.

There's a series of laws and court decisions that either clarify or muddy the waters, depending on which side you're on. The section of this article titled Conflicting Interpretations has a pretty good summary.
posted by Ham Snadwich at 6:16 AM on March 11


Yeah, I think this was a good ruling, even if people will have less bike trails, there really shouldn't necessarily be a right to bike on private land anyway. That is what public land and the actual roads are for.
posted by corb at 7:43 AM on March 11


corb: "there really shouldn't necessarily be a right to bike on private land anyway"

That's totally NOT what this was about.
posted by Big_B at 8:57 AM on March 11 [5 favorites]


I don't suppose it's too much to ask that maybe companies that are trying to prevent the abandonment of their right of way will run subsidized commuter trollies on those lines? I love me some bike trails but I would really love me some rural mass transit. I mean, I already know the answer, though. Sigh.
posted by Skwirl at 9:36 AM on March 11 [1 favorite]


That's not necessarily true. At least, not here in Washington State, and I don't think it is in California either.

Here, you generally hold title all the way to the center line of the street, and the public has an easement through your property (namely, the right of way).


The only way this is true is if you are living in/on a private street. The vast majority of streets in the US are public property and that line usually extends several feet PAST the sidewalk on most residential subdivision streets. This is a popular myth but if you check your subdivisions plat at the county you might be surprised at just where your property lines actually are. I believe the origin of this myth is that most municipalities require the property owner with frontage to maintain landscaping and general upkeep (not street maintenance-garbage and the like) on the public ROW in front of your house.

I am a civil engineer working daily in land development on projects in several different states and the situation you describe does exist, but is far from the norm in any state I am aware of (including California).
posted by bartonlong at 11:29 AM on March 11


> The vast majority of streets in the US are public property and that line usually extends several feet PAST the sidewalk on most residential subdivision streets.

Same here in Toronto Canada.
posted by Artful Codger at 12:04 PM on March 11


It depends where you are and how the property was developed. I live in downtown Baltimore and our property extends to the back of the curb. The city has an easement for the sidewalk, but the cost of maintaining the sidewalk is borne by the owner. My in laws live along a rural public road in Maryland and there play does extend to the middle of their road, but I'm willing to bet this is a holdover from when it was a dirt road that was later improved by the county. They pay no costs related to maintaining the road, other than property taxes.
posted by Ham Snadwich at 5:59 PM on March 11


Derp. That should read "...their plat does extend to the middle of the road..." stupid autocorrect.
posted by Ham Snadwich at 5:38 AM on March 12


I don't suppose it's too much to ask that maybe companies that are trying to prevent the abandonment of their right of way will run subsidized commuter trollies on those lines? I love me some bike trails but I would really love me some rural mass transit. I mean, I already know the answer, though. Sigh.

That would be some borderline worthless mass transit. I mean, I'm all for mass transit, but it's hard to see how it would be a net benefit for Wyoming at all. I did some calculations... if you compressed the entire population of the state of Wyoming into a city, it would be the 32nd largest, smaller than Las Vegas and a bit larger than Albuquerque. If it were instead a metropolitan area, which is more "fair" to a lot of medium-sized cities, it'd be the 92nd largest metro area in the US—a little smaller than Jackson, Mississippi.

Most cities that size are lucky to have a competently designed bus system, let alone trains... and they're not spread out over a hundred thousand square miles.
posted by sonic meat machine at 7:08 AM on March 12


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