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The Death of Rails-to-Trails? A Land Ethic Look at Marvin M. Brandt Revocable Trust vs. United States

If you’re a State College runner, chances are that you’ve taken advantage of the Bellefonte Central Rail Trail, which connects the Penn State arboretum to the Toftrees area trails.
by khepler Jul 16, 2015
Contributors: Stephanie E. Vasko
As a former Seattle-ite, I logged hours upon hours running on the Burke-Gilman trail, a member of the Rail-Trail Hall of Fame that curves through several Seattle neighborhoods and up along the western shore of Lake Washington.  If you’re a State College runner, chances are that you’ve taken advantage of the Bellefonte Central Rail Trail, which connects the Penn State arboretum to the Toftrees area trails.  Across the United States, more than 20,000 miles make up the Rails-to-Trails program. Converted rail trails serve as a thoroughfare for alternative commuters, a place for a weekend walk or ride, or the backbone of marathon training running routes.

Now imagine a world where some of those rail trails cease to exist.    Unfortunately, due to the March 10, 2014 Supreme Court ruling in Marvin M. Brandt Revocable Trust vs. United States, this world could become a possibility.  The outcome of this case has ignited discussions between trail users in the Rails-to-Trails community and has received coverage through larger media outlets.  While the Rails-to-Trails Conservancy has put together a large collection of information on the case, I’ll distill it down to the basic argument and point you to their extensive feature for more details on the case itself (as well as the exemptions to the ruling).  The core argument facing the court was whether the land that was ceded to the government by the General Railroad Right-of-Way Act of 1875 remains government property after the rail activity on the land has ceased or whether it reverts to the original landowner.**  With an 8-1 margin, the Supreme Court ruled in favor of the Brandt Trust and original landowner rights.**

Can the Supreme Court’s decision, which could potentially revert public activity spaces back to private property, be considered an ethical one?  One way to view this issue is through the idea of Aldo Leopold’s land ethic (from A Sand County Almanac), where he states that we should “Examine each question in terms of what is ethically and esthetically right, as well as what is economically expedient.  A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise."  Taken alone, this may not be enough to make a convincing case for rail trails.  However, Leopold expands on this notion by saying “land ethic changes the role of Homo sapiens from conqueror of the land-community to plain member and citizen of it. It implies respect for his fellow-members, and also respect for the community as such."  From this perspective, rail trails could play an important part in the ability of a (human) community to engage with their surroundings.  In Greenways for America, Charles E. Little argues that rail trails could be a place where “Leopold’s land ethic might take hold in minds that otherwise would never consider such a thing (p. 104).”  Simply put, access to nature through rail trails can be the seed for individuals to develop not only a sense of a land ethic close to home, but to learn to view their local space in the larger context of conservation and bioethics.  Are we (or the court) impeding spaces for informal development of ethical thinking and reasoning skills by removing or ceasing to build spaces where this development can occur?

Conversely, it could be argued that the activities of runners/bikers/humans/pets in general on these trails are destructive to native environments.  For example, the equestrian community has previously debated whether or not their use of trails is incongruous with the land ethic  and what good trail design and use should look like.  While equestrian activities differ from the previously mentioned groups, the ideas of bringing non-native species into an area remains the same. Could the human (and potentially pet) activities that rail trails bring to ecosystems possibly be threatening the stability of the biotic communities surrounding the trail? If so, is there an “ethical weighing” that needs to occur between the potential activities of the landowner and the potential activities of the public? If we look at the The Brandt Trust case not only through a legal perspective, but also through an ethical one, several difficult questions arise. This case requires us to take a look at our own actions as we interact with our environment, and challenges us with the ideas of personal land ownership versus nature as commons.

On a final note, Justice Sotomayor’s impassioned dissent, an excerpt of which is reprinted below, echoes some of these concerns while also pointing out potential economic ramifications to the American taxpayer:

“…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.* I do not believe the law requires this result, and I respectfully dissent.”

As this ruling is recent, we may yet watch these debates play out in the lower courts and in the media.  If you have any thoughts on this unfolding case, let me know what you think in the comments!


**This is a very simplified and reduced interpretation of the issue facing the court and their decision for the purposes of discussion in this blog series.  For a full perspective, I would suggest a read of: http://www.supremecourt.gov/opinions/13pdf/12-1173_nlio.pdf

*Dept. of Justice, Environment and Natural Resources Div., FY 2014 Performance Budget, Congressional Submission, p. 7, http://www.justice.gov/jmd/2014justification/pdf/enrd-justification.pdf (visited Mar. 7, 2014, and available in Clerk of Court's case file).