By Lisa Soronen

The State and Local Legal Center (SLLC) typically files Supreme Court briefs that argue federal law shouldn’t apply. If the court disagrees with the SLLC, generally state law will be preempted or declared unconstitutional. In Marvin M. Brandt Revocable Trust v. United States, the SLLC takes the unusual position that federal law should apply. But this case isn’t your usual case.   

In Brandt the court will decide who owns an abandoned federally granted railroad right-of-way: the United States or the land owner whose property the right-of-way runs through. The (SLLC) filed an amicus brief in this case supporting the United States, which NCSL joined. State and local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.”      

In 1908 the United States granted the Laramie, Hahn’s Peak and Pacific Railroad Company a right-of-way to build a railroad over public land pursuant to the General Railroad Right of Way Act of 1875. In 1976 the predecessor to the Marvin M. Brandt Revocable Trust bought land surrounding part of this railroad right-of-way. In 2004 the railroad abandoned the right-of-way. The trust argued it owns the abandoned right-of-way. The U.S. 10th Circuit Court of Appeals disagreed, concluding that a number of federal statutes provide that the United States retains a “reversionary interest” in General Railroad Right of Way Act of 1875 rights-of-way.

If the Supreme Court agrees with the 10th Circuit, state and local governments will benefit. A federal statute, if applicable, grants the United States title to abandoned railroad rights-of-way unless a “public highway” is established on the right-of-way within one year of abandonment.  Public highways include recreational trails.   

The SLLC amicus brief argues that state and local governments have long relied on the federal statutes relevant to this case to build public highways in abandoned railroad rights-of-way.

The National League of Cities, National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, and the American Planning Association also signed onto the SLLC's brief.

Oral argument has been scheduled for Jan. 14. The Supreme Court will issue an opinion in this case by June 30.

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on Supreme Court cases for the NCSL Blog.


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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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