The odds were against state and local government in the Brandt case for the most compelling reason possible:  precedent (old, but pretty much on point) contradicted our position.  Yet there was some reason for hope at the oral argument.  Justice Breyer referred to the State and Local Legal Center amicus curiae brief, which ICMA joined, by name at oral argument and discussed one of the brief’s arguments.  Hopes were dashed with the Court issued an opinion against the United States joined by all members of the Court except Justice Sotomayor.    

In Marvin M. Brandt Revocable Trust v. United States the Court held that a private party, rather than the federal government, owns anabandoned railroad right-of-way granted by the General Railroad Right-of-Way Act of 1875.  When the federal government owns abandoned railroad rights-of-way, state and local governments may convert them into “Rails-to-Trails.”  

In 1908 the United States granted the Laramie, Hahn’s Peak and Pacific Railroad Company a right-of-way to build a railroad over public land in Wyoming pursuant to the General Railroad Right of Way Act of 1875.  In 1976 the United States granted to the Brandts a parcel of land that this right-of-way ran through.  In 2004 the successor railroad abandoned the right-of-way.  The Brandts contested the United States claim that it owns the abandoned right-of-way.

The Court ruled against the United States “in large part because it won when it argued the opposite before this Court more than 70 years ago in the case of Great Northern Railway Co. v. United States.”  In Great Northern oil was discovered under an 1875 Act right-of-way. The United States claimed that the railroad had been given only an easement (and the United States owned everything beneath the surface) because after 1871, when Congress stopped giving railroads parcels of land and only gave them rights-of-way, the United States also stopped retaining a right of reverter in the event of abandonment and instead granted railroads mere easements.

The United States and the SLLC argued that the Court should not read Great Northern as broadly and that a series of federal statutes apply to abandoned 1875 rights-of-way and grant the United States title to abandoned rights-of-way unless a state or local government establishes a “public highway,” including a recreational trail, within one year of abandonment.  The Justices discussed at oral argument the SLLC brief which argued that state and local governments have relied on these statutes.  Yet the Court concluded they don’t apply to 1875 rights-of-way because “these statutes do not tell us whether the United States has an interest in any particular right of way; they simply tell us how any interest the United States might have should be disposed of.”

Justice Sotomayor summarizes why this case is a loss for federal, state, and local government:  “[T]he Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”