Western property rights case pits landowners, government

Richard Wolf, USA TODAY5:45 p.m. EST January 14, 2014

An 1875 congressional law and a 1942 court decision don't answer whether the government or private landowners have first dibs on former railroad property


(Photo: AP)

STORY HIGHLIGHTS

  • Supreme Court must decide who gets retired railroad property
  • Government victory could lead to expensive takings lawsuits
  • Landowner victory could affect popular "rails to trails" program


WASHINGTON -- The Supreme Court wrestled Tuesday with the repercussions of how the West was won.

What did Congress intend, the justices wondered, when it passed the General Railroad Right of Way Act of 1875 to give rail lines access to public lands? Now that most of the railroads are out of business and much of the land has been sold, who gets the rail beds -- the government or private landowners?

Despite their best efforts to decipher 19th century laws and 20th century court rulings, most of the justices appeared conflicted, and for good reason: Whatever they decide could cause trouble.

If they side with two lower courts and let the government freely carve roads and bike trails along the rail beds, thousands of property owners could sue, exposing the government to costly settlements. About 80 such cases already exist with about 8,000 claimants.

If they reverse field and rule for property owners such as the family of Marvin Brandt, who brought the lawsuit over a disputed 10 acres of land in Wyoming, it could jeopardize the government's 1983 "rails to trails" program, responsible for creating more than 1,400 bike and nature trails throughout the West.

Hard as they tried, the justices couldn't quantify the size of the problem.

None of the lawyers in the dispute could tell them precisely how many acres of land (likely millions) or miles of roads and bike paths (probably thousands) are at stake. Nor could they pinpoint how many property owners are threatened (maybe tens of thousands) or how much they could seek in compensation (possibly billions of dollars).

It "strikes me as pretty unusual that the government doesn't know what it owns," said a clearly irritated Chief Justice John Roberts. Justice Antonin Scalia, who cast his lot with the landowners early on, called that "incredible."

Justices Stephen Breyer and Elena Kagan worried about the implications for landowners if the government is granted the rights to railroad rights-of-way, likened by Kagan to "these spaghetti strips of land."

Breyer, who has had three bicycling accidents since 1993 -- the last of which in April resulted in a shoulder replacement -- envisioned a future in which landowners could be besieged by bikers.

"I certainly think bicycle paths are a good idea," he said. But "for all I know, there is some right-of-way that goes through people's houses, you know, and all of a sudden they are going to be living in their house and suddenly a bicycle will run through it."

http://www.usatoday.com/story/news/n...-west/4479339/