The Supreme Court decides rails to trails case: A new governmental attorney estoppel doctrine or a case of revisionist history?

Vol. 45 No. 6

Norman A. Dupont is a shareholder in the Los Angeles office of Richards Watson Gershon, where he practices primarily environmental law. He is a former editor-in-chief of Trends and a current member of the Trends editorial board.

A new governmental attorney estoppel doctrine?

In March, the U.S. Supreme Court issued its first environmental opinion of the 2013 Term, deciding Marvin M. Brandt Revocable Trust v. U.S., 134 S. Ct. 1257; 188 L. Ed. 2d 272 (2014) (Brandt). Brandt involved the claims of a single property holder who challenged the federal government’s reversionary interest in a former railroad right-of-way crossing his land. The government wanted to convert the land into a trail, hence the slogan “rails to trails.”

In the 8–1 opinion, written by Chief Justice Roberts, the Court held that the U.S. lacked any reversionary interest in former railroad rights-of-way established pursuant to an 1875 statute. This ruling effectively limits the Government’s current practice of converting former railroad rights of way into greenway trails and potentially exposes the U.S. to a number of “takings” suits for lands it has already acquired under that statute.

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