DN Editorial: Unhappy trails

Posted: March 18, 2014

IT MIGHT be sound reasoning, but a Supreme Court decision last week on an arcane legal-easement argument will likely have broad and regrettable consequences for the national movement to convert old railroad beds into bicycle paths. (That includes portions of the 3,000-mile East Coast Greenway intended to create an urban path from Florida to Maine.)

The case, Brandt v. U.S., is rooted in the General Railroad Right-of-Way Act of 1875, through which Congress established a uniform approach to granting easements on government land so that railroad companies could extend tracks through the heart of the still-developing country.

As the federal government deeded some of that land to homesteaders, the easements went with the property transfer, meaning that the new landowners were required to let the railroads use their property. But that 1875 law didn't specify what would happen to the easement if the railroad line was abandoned, which is what happened in 2004 to a 66-mile track running from Laramie, Wyo., to the Colorado state line.

Two years later, federal lawyers filed legal papers asserting that the easement reverted to the government, part of a move to convert the railroad bed into the Medicine Bow Rail Trail. The Brandt family, which owns 83 acres transected by the old railroad line, contested the government's claim, arguing that the easement died with the railroad. As a result, the government had no right to maintain the easement - and thus no right to build a public bike trail on the family's land. The Supreme Court ruled 8 to 1 in favor of the Brandt family (with Justice Sonia Sotomayor dissenting), and it's hard to find fault with the court's logic. But it may have the unfortunate effect of encouraging private property owners to cut off public access to bike trails established over old railroad easements, and to thwart efforts to build new ones.

The Rails-to-Trails Conservancy, which is behind the efforts, says there are more than 21,000 miles of rail trails nationwide, but no one has kept track of how many were developed on easements under the 1875 law, so it's unclear how many miles will be affected. This is the regrettable repercussion of the court's decision.

Bike trails have added significantly to the recreational offerings available around the country, and if they were built on a now indefensible legal presumption, care must be taken to protect existing trails and create a mechanism for their continued development. That will likely take negotiations with property owners, and some federal park dollars, to ensure the future of the affected trails. If so, it would be a good investment, and smart policy.


The Daily News occasionally runs editorials from other sources. This first appeared in the Los Angeles Times.

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