In addition to the initial media coverage of and commentary about the Supreme Court's 8-1 decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014) rendered earlier this week, there has been more, mostly focused on the final lines of Justice Sotomayor's solo dissent:
By changing course today, the 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.
Dissent at 8 (emphasis added).
What she was getting at, of course, was the fact -- not stated anywhere in the majority opinion but made clear by the amicus briefs -- that by holding that the interest granted was only an easement and did not revert to the United States upon abandonment by the railroad, the Court did not affect the rights of the revisionary property owners to bring takings claims in the Court of Federal Claims. When land they believed they were getting when the railroads stopped using it for railroads was instead converted to recreational trails, the owners must be paid just compensation. It should be pretty routine for the CFC to determine what's owed in those cases.
But there's probably a good reason the majority opinion didn't go into all of that: it wasn't at issue in the case, at least not directly. Remember that Brandt was a quiet title action, brought by the government against the property owners. A test case in the sole federal circuit that had already ruled the government's way in an earlier decision on the easement-or-revisionary-interest question. Thus, it was no surprise that the District Court, applying that earlier precedential case, ruled in favor of the government, as did the Tenth Circuit. And it was not that much of a surprise that at the cert stage, the government actually agreed with the property owners, and urged the Court to review the case. Let's take that Tenth Circuit precedent and make it nationwide.
As we argued in our amicus briefs, this was a strategy designed to virtually wipe out those CFC takings cases. As Gideon Kanner pointed out, the government's track record in those cases was pretty bad. A win in Brandt would have eliminated the problem of having to pay for public recreational trails in many cases. No property, no taking, no compensation. All the Supreme Court's ruling in the case meant is that this strategy failed, and the existing process, envisioned long ago by the Court in Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 (1990), would remain. In that case, the Court sustained the National Trails System Act, 16 U.S.C. § 1241, et seq. as a valid exercise of the federal commerce power, but concluded that converting an abandoned railroad right of way to trail use may "giv[e] rise to just compensation claims” under the Takings Clause. Id. at 13. If the public wants a recreational trail, that's just fine as long as it pays for it. As Justice Holmes wrote long ago, "[w]e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).
In other words, no free rides for rails-to-trails.
But instead of focusing on that, much of the coverage makes it seem like the property owners got away with something, and that the Supreme Court's decision will result in a big change in the existing landscape:
- Supreme Court deals setback to rails-to-trails movement (Los Angeles Times)
- Supreme Court Wakes Up in 1875 (Bloomberg)
- Supreme Court Sides With Landowner in Rails-to-Trails Case (Wall Street Journal)
- The Supreme Court Decision: How Does It Affect Rails-Trails? (Rails-to-Trails Conservancy)
- U.S. Supreme Court Deals Blow to National Rails-to-Trails Movement (LegalPlanet blog)
- Sotomayor Earns Another Scolding As She Breaks From Majority In Railroad Case (Forbes)
But the only "setback" or "blow" the Court dealt to rails-to-trails is what should be the unremarkable idea that property owners must be compensated if their property is impressed into public service, and that even though bike paths on former railroad easements may be a good thing doesn't mean we get them for nothing. Getting that free ride might be simpler and easier for everyone (but the property owner, of course), but as Professor Richard Epstein recently pointed out, the Just Compensation requirement forces us to ask the right questions when deciding whether to do things like institute a rail-to-trail conversion program. Questions like "can we afford this?"
Protecting private property does not stand in opposition to the welfare of the community at large, but is thoroughly consistent with it. For example, forcing New York City to put the cost of landmark preservation "on budget" improves the political process by forcing a more candid deliberation of relative costs and benefits. It is the failure to incorporate this check on deliberation that has contributed so much to economic stagnation in New York City and the nation.See Epstein, Our Property Principle (Mar. 10, 2014).
Maybe after Brandt, the right questions will finally be asked about the rails-to-trails program.
