Doing a Double Take: Rail-Trail Takings Litigation in the Post-Brandt Trust Era
51 Pages Posted: 18 Sep 2015 Last revised: 10 Nov 2015
Date Written: 2015
After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW lands to the class of potential takings cases that already suffer serious legal and logical infirmities. The Court’s hasty decision simply compounds the disastrous effects of the Court of Federal Claims’ already disastrous takings jurisprudence in this area.
Keywords: takings, FGROW, railroads, 1875 General Railroad Right of Way Act, railbanking
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