Policy: Law

Supreme Court to decide if bicycle trails trump property rights

By |
Opinion,Ron Arnold,Columnists,Supreme Court,Law

Marvin Brandt, 69, of Fox Park, Wyo., had his day in court  Tuesday — the U.S. Supreme Court — trying to regain his rights to the abandoned railroad bed that crosses his ruggedly scenic Medicine Bow homesite. The 200-foot-wide slice bisecting his 83-acre property was seized in 2006 by the U.S. Forest Service and now bears a bicycles-only recreation supertrail.

Brandt and his father got the land with its railroad tracks in a 1976 trade with the U.S. Forest Service. The railroad abandoned its right of way in the mid-1990s, giving Brandt ownership under the 1875 General Railroad Right of Way Act.

But when the USFS sued Brandt to commandeer the strip, insisting that it owned “reversionary rights” to the railroad bed, Brandt filed a counterclaim to protect his title. He lost in lower courts, so the Supreme Court is now his only hope.

Who’s right? The problem is that reversionary law is a byzantine maze, and federal courts have ruled both ways. And even though the Supreme Court ruled in 1942 that the 1875 law gave reversionary rights to the private landowner, government agencies have recently paid no attention.

So cyclists go la-la-la on their merry way while Brandt peers sadly out his two-story cabin’s floor-to-ceiling windows and pins his hopes on the Supreme Court.

The impetus for confiscating Brandt’s land supposedly came from local groups such as Cycle Wyoming. It may sound silly that the rural pedaling class could wield such power over the USFS, but, as predictable, Big Green was largely behind Brandt’s problem.

The “rails-to-trails” movement plaguing Brandt goes back to the 1990s, when leftist foundations such as Surdna (timber heirs), HKH (a mining heir), and Joyce (President Obama was a board member) realized they could push their climate-related no-motorized-transportation agenda nationwide — rural and urban — by creating and funding bicycle activist groups.

The idea was to convert abandoned railroad rights-of-way on private land, then proliferating everywhere, into “corridors of linear parks.” The resulting “linear parks” have brought thousands of claims from Americans like Brandt, who demand that the government give back their stolen land — or pay for it.

The Washington-based Rails-to-Trails Conservancy ($6.9 million 2012 income) is the movement’s linchpin today, with over 250 foundation grants providing $6.4 million of its 2007-2012 $35 million budget. It has dozens of linked counterparts. Brandt was up against a sizeable dark network that may now be ripe for disruption and dismantling, depending on the outcome of the case of Marvin M. Brandt Revocable Trust v. United States.

Supreme Court justices heard none of that in Tuesday’s oral argument — activism had no place in the dispute, only reversionary property law. Brandt was represented by Steven J. Lechner, vice president and chief legal officer of Denver-based Mountain States Legal Foundation, who made an intricate argument brimming with erudite explanations of railroad reversionary rights, spiked with controversial views on easements and fee ownerships, legal arcana at the heart of Brandt’s case.

I spoke to MSLF President William Perry Pendley, who was at counsel table during the argument, and I asked his morning-after opinion of how it went. He should know — he has argued and won before the Supreme Court himself.

Pendley said, “I think it went very well. Steve did an excellent job, judging by the questions he got from the bench. Several justices appeared receptive to the Brandt arguments, and government attorney Anthony Yang was bluntly rebuked several times.”

What about the outcome? Pendley said, “You can’t predict the Supreme Court, but I wouldn’t be surprised at a finding for Mr. Brandt of 7-2 and possibly even by a unanimous decision.”

What's at stake? Pendley explained that if the federal government prevails, there will be no protection for property owners against agencies taking their lands “by implication, that is, by stealth.”

RON ARNOLD, a Washington Examiner columnist, is executive vice president of the Center for the Defense of Free Enterprise.

View article comments Leave a comment