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By Lisa Soronen

RailroadEvery year before the Supreme Court’s term officially begins on the first Monday in October the Court holds its “long conference,” during which the justices consider which cases to hear among the approximately 2,000 cert petitions that have accumulated over the summer. On Oct. 1, the Court accepted eight of those cases, one of which the State and Local Legal Center (SLLC) will file an amicus brief.

In Marvin M. Brandt Revocable Trust v. United States, the Court will decide who owns an abandoned railroad right-of-way: the United States or a private land owner living next to the right-of-way. In 1875, Congress passed a law granting rights-of-way to railroads through public land. Over the course of the next century, as trucking became a more popular method of transport, numerous railroads abandoned these rights-of-law. 

The government argues that a 1922 federal statute allows the United States to retain the railroad right-of-way if it is abandoned. If that is the case, and the abandoned right-of-way is located in a municipality, the municipality automatically receives it from the federal government for free. If the abandoned right-of-way is located elsewhere, a state or local government receives it for free if it establishes a “public highway” on the right-of-way within one year. State and local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.”

State and local governments often own and maintain abandoned railroad rights-of-way. The Supreme Court usually takes cases where at least two federal circuit courts of appeals have ruled differently on the same issue. In Marvin M. Brandt Revocable Trust v. United States, the Tenth Circuit ruled in favor of the United States. In a similar case, Samuel C. Johnson 1988 Trust v. Bayfield County, Wisconsin, the Seventh Circuit ruled against Bayfield County, who intended to build snowmobile trials on the abandoned railroad right-of-way. 

Learn more about cases from this term affecting state government at the SLLC Supreme Court Preview webinar on October 22.  Registration is free.     

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.

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