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Supreme Court’s rail-trail ruling: What does it mean for Oregon?

Posted by on March 11th, 2014 at 12:46 pm

Family trip to Stub Stewart State Park-39-39

A Supreme Court ruling could open the door
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.”

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  • Chris I March 11, 2014 at 2:25 pm


    Property owners will always be king. Public access is just not a priority in this country, for some reason. This will kill many projects around the country. If one thing is certain, it’s that greedy landowners will do whatever they can to restrict access for the general public.

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    • Paul March 11, 2014 at 8:14 pm

      Restrict or extort, greed and selfishness rule.

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    • GlowBoy March 11, 2014 at 9:19 pm

      Yep, that’s happened with EVERY rail-trail project I’m familiar with. Property owners near Lyle, WA fought the Klickitat Trail (a truly wonderful trail) tooth and nail.

      Funny, in many countries travelers are allowed not only to travel across on private land, but to camp on it, as long as they stay a prescribed distance from residences. But here in America, landowners will use deadly force in preventing people from even setting foot on their land. Very different ideas of the very nature of land ownership, to say the least.

      Hey Jonathan, how can your list not include the Deschutes River State Recreation Area? That’s one of Oregon’s oldest rail-trails, and certainly one of the most scenic (not to mention my personal favorites).

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      • Pete March 11, 2014 at 10:59 pm

        You are right, it was a helluva fight. I know the people who purchased a remaining chunk under trust to make completion of the Klickitat trail possible – they are successful and truly wonderful business owners in Portland and Beaverton that give back so much to the community. I thank them by getting out there as much as possible to enjoy it!

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  • kww March 11, 2014 at 3:12 pm

    Why can’t we ‘railbank’ the Lake Oswego rail line? What a commuter and pedestrian trail that would be!

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  • Chris March 11, 2014 at 3:19 pm

    The Willamette Shore line in Lake Oswego can’t be railbanked because the majority of the line is via an easement that requires it be used for “rail purposes.” If it is used for any other purpose the easement becomes void.

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  • Harald March 11, 2014 at 5:56 pm

    Wikipedia has some interesting background on “railbanking.”

    I hadn’t encountered the term before.

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  • dwainedibbly March 11, 2014 at 6:08 pm

    I wonder if at least some property owners could be enticed to allow rail trails if there was some sort of conservation easement deal that would give them tax breaks, etc.

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  • MIXTIEME March 11, 2014 at 9:54 pm

    Who do we contact to convey our disappointment in this decision?

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    • Pete March 11, 2014 at 11:03 pm

      Start by texting “WTF did you just say??” to Justice Stephen Breyer…

      from USA Today:
      Justice Stephen 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.”

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  • MarkB March 12, 2014 at 6:39 am

    OK, so Breyer is an ***deleted by moderator – please don’t insult people in the comments*** ; and while SOME landowner/rail-trail conflicts may have some legitimacy, I’m of a mind to require at least SOME of the ‘winners’ of these type of suits to pay for the “improvements” to their property — as in a countersuit brought at the same time.

    As someone who’s grown up within sight of railroad tracks in urban settings for most of my 55 years, the only motives I can see for such suits are access to otherwise-unused land (possibly split by the railroad), or simple greed.

    There’s also the sometimes-misused concept of “eminent domain”. They ALL need to be case-by-case, with limited use of precedent.

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  • Stretchy March 12, 2014 at 8:57 am

    If it’s greed for a lawful landowner to use her land for her own exclusive purposes, what is it called when you want to use her land for your own purposes?

    If you are such a fan of public access, I’m sure you won’t mind me carving out a shortcut through your home or apartment if I find the shortcut desirable.

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    • John Lascurettes March 12, 2014 at 9:18 am

      We’re not talking about establishing new shortcuts – we’re talking about using a cut through that has already existed and could not be used or developed by the landowner (probably for generations).

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      • Stretchy March 13, 2014 at 8:16 am

        Yes, we are talking about new shortcuts. The existing right-of-way is for a railroad. The proposed right-of-way is for a bike path. To state the obvious, these are two different things.

        If I give you permission to use my property for purpose A, that does not give you permission to use it for purpose B regardless of your feelings about how noble or convenient purpose B is.

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    • GlowBoy March 12, 2014 at 1:59 pm

      Uh, you do know there’s a difference between a built-up home or apartment and a piece of unoccupied land, right?

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      • GlowBoy March 12, 2014 at 2:03 pm

        Well, maybe not. After all, Breyer didn’t seem to understand the difference.

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  • matt March 12, 2014 at 9:40 am
  • Carl March 12, 2014 at 10:36 am

    Hey, let the trails revert to private ownership with the understanding that trails will still be used and the new owners WILL HAVE TO MAINTAIN THEM. That might change a few minds.

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  • esther c March 12, 2014 at 12:58 pm

    I cannot imagine why someone would not think having a bike trail available to hop onto adjacent to their property would be a good thing. Maybe if it bisected it too close to your house or something but really, wouldn’t it be an asset?

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    • GlowBoy March 12, 2014 at 2:03 pm

      Yes, in the end it almost always ends up being a huge asset, and real estate flyers invariably tout a property’s proximity to the trail as a huge asset.

      But before a trail is built and folks lacking imagination are able to envision it, invariably you get a bunch of property owners bellyaching about all the crime, vandalism, fires and other problems they think a trail will bring. It seems an immutable law of (human) nature for it to always play out this way.

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    • wsbob March 13, 2014 at 10:28 am

      People get used to, and like their privacy. From newspaper stories leading up to construction of the Banks-Vernonia, I remember this being among reasons some people had reservations about the trail going in. One day, they’re living in solitude and quiet, the next day they’ve got a bike freeway running across their property…so to speak. It’s not like SE Portland urban residents having change in the form of the Springwater corridor located in their back yard.

      Rails to trails projects is a great idea, but inevitably, some people won’t take warmly to it being on they’re property. That they’re due some consideration with regards to this seems reasonable. Also inevitable, though, and unfortunate, is that some people or companies may try use the supreme court ruling simply to make a lot of money, or out of spite, to keep the public off their land.

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  • Dave March 5, 2015 at 10:21 am

    I actually own 1600 feet of frontage to the proposed westsider trail I also have 30 acres of prime Vineyard land in the Yamhill Carlton AVA which also has frontage to 47 and the railhead.where I am all for the trail as I beleive it is not only good for our area and community, but is also beneficial to my bottom line as well! I don’t think that people here are opposed to this addition to our emerging wine industry as we are becoming one of the finest valley’s for wine grape production! Hopefully people that either have land adjacent to or own the land that the rail sits on our generous, I don’t think they should give their land away but at least allow the use of it as was done for the railroad I think that would probably be the best solution but there will always be those few that only care about the money and could care less about the area and that’s just part of the process hope it all goes well and we get our trai! looking forward to that.

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  • Chris March 17, 2015 at 8:05 pm

    I also have land on both sides of the proposed yamhelas trail. I farm on both sides of it and believe there will be conflicts with tress passing and vandalism on my land. It has been shown that pproperty values decrease. If you do not believe this please come and purchase my farm and retire on the profits if the trail is deemed constitutional. Why should the county, including myself, have to pay more taxes to maintain a trail that pdx people will use and abuse and then go home at the end of the day. How many bottles of wine can you carry on a 10 speed?

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