Posted by Jonathan Maus (Publisher/Editor) on March 11th, 2014 at 12:46 pm
for lawsuits from landowners adjacent to popular
rail-trails like the Banks-Vernonia State Trail.
(Photo by J. Maus/BikePortland)
Yesterday’s Supreme Court ruling on a rail-trail case — and the doomsday headlines that followed — have caused a lot of concern among people who love cycling on paths built atop former railroad corridors.
In Marvin M. Brandt Revocable Trust v. United States the court ruled 8-1 in favor of the trust, who claimed their rights to the now-abandoned railroad should be reinstated. Their land is slated to become part of the Medicine Bow Rail Trial and the federal government argued that they have rights to the trail easement based on a “reversionary interest” which should go into effect once the railroad was abandoned.
With the court siding with a private landowner, the federal government could potentially be forced to buy them out. The case could also trigger claims by other landowners. The USA Today reported that the ruling could have “implications for about 80 other cases involving some 8,000 claimants” and that ultimately, “Tens of thousands of other property owners also could emerge as victors.” If that happened, the federal government could be forced to choose between spending hundreds of millions of dollars to acquire easements or limit public access on popular paths. A very likely outcome is that some new rail-trail projects will be put on hold while the case winds it way through appeals and legal analysis.
Whether or not a trail corridor is impacted by this ruling depends on how the land it sits on was initially transferred. Railroad companies typically either bought the land outright, purchased only an easement over the land, or they received permission to use the land from a federal right-of-way grant. If a railroad is still being actively used, then there’s nothing to worry about. It’s only after the railroad is abandoned that issues can arise.
Some rail corridors have been “railbanked,” a process keeps them from being legally considered as abandoned and preserves them for either future rail use or as a public trail. If a rail-trail is on a corridor that has been railbanked, this ruling won’t impact it at all.
Not surprisingly as a state with several major rail-trails, there’s a lot of concern and curiousity from Oregonians about the ruling. To find out more, we’ve spoken about this case with Kevin Mills, the senior vice president of policy and trail development at the Rails-to-Trails Conservancy and Rocky Houston, trail coordinator with Oregon Parks & Recreation Department.
“We feel like we have a good faith claim [to the land], but that can be a moving target when laws change.”
— Rocky Houston, Oregon Parks & Recreation Department
Mills with RTC says his organization is still exploring the nuances of the court’s decision. Right now, he wants to make it clear that the ruling applies only to railroads abandoned prior to 1988 and that were acquired with federal right-of-way grants. Railbanked corridors are safe, but at this point, he says, anything not railbanked is now “more vulnerable to litigation from landowners.”
Unfortunately, one issue that this case has brought up is that the exact ownership status of much of this railroad land is unclear. During the Supreme Court hearing, even the federal government didn’t seem to know how many of the right-of-way grants they’ve issued. It’s also likely that much of the information is buried in old documents owned by the railroad companies themselves — many of which are now defunct.
Mills and his team are still reacting to the decision and it will likely take some time before its full scope and impact of the ruling are known. “We are trying to explore the nuances,” he told us, “What remains to be decided is, are their ways we can restrict the scope of the impact of this decision as it moves back down the courts?”
Rocky Houston with Oregon Parks & Recreation said the ruling is a “setback” but that most of Oregon’s trails will, hopefully, avoid new litigation from landowners. “To a certain degree, this is going to require adjacent landowners to file a claim, so there will have to be some action taken… And I think we’ve done our due diligence when we acquired the land initially.”
While Houston said it’s too early to tell if the dire headlines about the future of rail-trails are warranted, he stopped short of downplaying its importance and potential negative impact. “We feel like we have a good faith claim [to the land],” he said, “But that can be a moving target when laws change.”
Currently, Oregon has four major rail-trails that are actively used by the public: the Banks-Vernonia State Trail, the Row River National Recreation Trail, the OC&E Woods Line State Trail and the Springwater Corridor Trail.
Of those, the Springwater and the OC&E are railbanked and therefore safe from any future legal claims. Houston said the Salmonberry Corridor will be railbanked as well.
One future trail he mentioned that this ruling might impact is the Yamhelas Westsider Trail currently under development in the Willamette Valley. “That project would be an interesting case,” Houston said. There are other pieces of trails throughout the state that use former railroad corridors (including a portion of the Fanno Creek Trail in Beaverton); but so far we haven’t found a good, publicly available map that lists them all.
As for the Banks-Vernonia and the Row River Trails, it remains to be seen whether adjacent landowners will file a claim of ownership. The Banks-Vernonia railroad was abandoned in 1973 and ODOT purchased the right-of-way in 1974. The Row River Trail was abandoned in 1990 and was purchased by the Bureau of Land Management through a timber sale.
Rail-trail projects were notoriously complicated and fraught with fine print even before to this ruling. What lies ahead for Oregon, the RTC, and other agencies is a lot more research and a lot more lawyer fees.
“Once the opinion is interpreted by attorneys from RTC, ODOT, and other entities,” Houston said, “hopefully it will provide us with some framework for moving forward.”