Colorado Update

I’m preparing to go to Colorado in a couple of weeks to do some reporting and writing about the disaster from there. I’ll be heading out November 3rd and will be there for a week. In the meantime, I thought a brief update was in order on the situation:

The Denver Post is reporting that over 300 immigrants remain homeless after the flood because many of them do not qualify for government aid. They were living in trailers or apartments in areas such as Evans, Milliken and Longmont. Apparently, many are in the country without documents, but others lost important documents in the floods. Click here for the story.

One of the issues faced by people living in the mountains is that first they have been hit by two disasters in short succession. First they had fires, and then they had a major flood. Even before the floods last month, flash floods running off the burned up hillsides has resulted in mudflows and severe erosion in several areas. This problem was exacerbated by the storm last month. The Coloradoan.com had covered this story on September 25th.  The impact on mountain residents is severe. In the meantime, drought, fire and climate change, says the National Geographic, all may have contributed to the Colorado flooding. NPR reports flood forensics suggest that mud and rock slides have caused serious erosion in several areas. Digging out of roads, bridges and homes will be costly and take time.

A couple of weeks ago, Colorado State’s Climate Center has launched a website devoted to the floods. It contains storm facts, timelines, photos of the damage as well as satellite and radar imagery.  They also include a Resources page here that includes flood highway updates.

FEMA has issued a statement titled, “Colorado Flooding One Month Later: Positive Signs of Recovery.” Among other pieces of information and links to their various activities, FEMA reports county-by-county breakdown of state and federal grants.

A financial disaster emerged in the wake of the Colorado floods for many food victims because many homeowners did not have flood insurance. The USA Today reported back on September 16th that only 22,000 homes and business had flood insurance (mostly residential policies). Before being too appalled at that figure, it may be good to check to see if your flood insurance is up to date. NBC News Business reports that only 18% of Americans have any kind of flood insurance. Many do not even realize they need it, or they think they have it but don’t. (For more information on flood insurance visit FloodSmart.gov.)

Let’s Talk Easements: October Term and the US Supreme Court

This week began with the First Monday in October. For nearly anyone interested in law, this is an important event: it’s the start of the Supreme Court’s October term. We wait to read through the docket, and then we have what seem to be endless discussions about what we think is most interesting. This year’s cases include another look at affirmative action and a bunch of cases involving various workplace issues, some of which are utterly fascinating.

My interest in the Court’s docket tends to be fairly specific, and rarely does it have a lot to do with all the other discussions about other hot button issues. This October, buried in the pile of work accepted for review by the Nine, is a case that should be of interest to anyone watching the politics of property rights. The case, Brandt v. US may have significant consequences for the National Trails System Improvement Act (Pub. L. No. 100-470, 102 Stat. 2281 (1988)), which converts abandoned railroads to multi-use public spaces. It is a hugely popular program, and has been lauded throughout the country. Indeed, I for one have long loved the walking and hiking trails that come out of this legislation. However, property issues have been stewing for a while now, and Brandt provides us with an opportunity to see why this popular program has been disputed in the courts.

Brandt involves rights of way granted by the federal government in the 19th century to railroad companies on land that was later granted by patent to private owners. That’s very complicated sounding, so I’ll unpack it a bit. Before I can do that, though, I need to explain why I think easement disputes are so important.

Easement disputes that rise to the level of the Supreme Court almost always provide insight into policy problems in a historical perspective. For this reason, anytime easements held by the federal government over land that is privately owned are discussed, my ears perk up. For one thing, how Congress and the Courts interpret easement language in statutes, as well as in the easements themselves, has important consequences for property owners. For example, flowage easements, which provide the right to use land during a flood to divert the water into an area owned privately, have been obtained by the government in spillway and wetland areas in order to control flooding. The government argues that such easements are necessary for the protection of private property. This protection comes in the form of decreasing flooding heights in other areas. The specific language of the easements and the servitude placed on the land can both be sources of contention during flood control operations. Thus, they sit at the intersection of disaster management and property law. Easements in other contexts are instructive because they can shed light on how time, moving along as it does, and changes in the land and the people living on it or near it, combine with economic issues to give shape to disputes concerning various forms of land use. Easements exist at that intersection of disaster management and property because easements also sit at the intersection of community relations, social structures and norms. Put pressure on easement arrangements, and you will learn a lot very quickly about a community.

Boiled down to their most basic conceptual level, an easement is a contract between a private property owner and another party that grants the right of limited use of land owned to the second party. Title of the land does not transfer. The original owner continues to hold title, and the user gets to use the land for the purpose set out in the easement. A lot us of know what an easement is because we have them around our homes. For example, do you have an alleyway behind your house? Or a shared driveway? If you own the title of the property that is being used by a neighbor or the public (i.e., think a sidewalk), chances are there’s an easement that allows that use. When you do a title search on a piece of property, any easement that exists should show up (caveat: an implied easement might not — these exist where a tradition of use has developed. They can become a point of hot contest if an owner no longer wants to allow the use that’s been there for some time). Sometimes there’s money exchanged for the easement, but not always. I have friends who have an easement for a shared driveway with their neighbor — they did the paperwork and shook hands. There is some financial element to their agreement, but it seems mostly to revolve around who pays to have the snow cleared in the winter. But the easement does structure their relationship to some extent by stating who has the right to do what, and what compensation is required for that right. And it is a driveway, so this is a right to use that matters on a nearly daily basis.

Most easements run with the land (known as “perpetual easements”). This means they obligate future owners to allow the use designated in the easement, as well as the owner who negotiated the initial easement. And if the use of the land changes, the users have to renegotiate with the owner. Again, at its most basic, oversimplified level, this is what an easement is. There are complexities, of course (there always are in law). But the point is this: easements transfer a limited right to use from an owner to a non-owner, but they do not transfer title.

There’s another legal instrument, known as a limited fee title, which is also used at times to acquire land for public purposes. Here, ownership actually does transfer to the user of the land, but there are specific conditions to the transfer. The holder of the limited fee can determine how the land is to be used within the limitations set out in the fee. Now, my understanding here is that a limited fee on public land means that the holder can do whatever he/she wants with the land provided the conditions of the fee are met, both in terms of the limitations placed on the use and the specific conditions under which the transfer occurred. If those conditions or specific circumstances cease to exist, the ownership of the land reverts back to the original owner. If the original owner is the government (because they are the “owners” of public land), then it would revert to them. For example, if a corporation is granted a limited fee title to operate its railroad, as long as that is what they are doing, they can do many things with the land: build depots, new tracks, upgrade old tracks, dig for wiring, etc. As long as it supports the operation of their railroad, they own the land and can do what they need to do to run their railroad. But, if the railroad ceases to exist, the conditions under which the limited fee title was granted also cease to exist, and the ownership of the land reverts back to the original holder of title. If it’s public land, that would be the government. If it’s private land, the “reversionary interest”, as it is called, goes back to the private owner.

In Brandt, the right to use public land for railroad tracks was granted to the railroads in 1875 in the General Railroad Right-of-Way Act. At the time, the land was not privately owned. What complicates the issue, however, is that several decades later, in 1908,  the federal government granted the land surrounding the tracks to the parents of Marvin Brandt, the plaintiff in the case, through a land patent. Land patents transfer the title of land from a sovereign entity (i.e., the federal government in this case) to a private owner. Thus, the land became privately owned. According to the petition for cert, the patent expressly reserved certain rights of ways and road easements in it. What the plaintiffs dispute, however, is whether it reserved an “implied reversionary interest” for the government in the land where the railroad tracks were. The answer to their question will turn on whether or not the 1875 statute granted an easement or a limited fee title.

Brandt’s lawyers argue that the right-of-way granted in 1875 provided an easement for the building of the railroad tracks, not a limited fee. When the land was patented to the Brandt family, they came into ownership of all the land, but the railroads retained their usage rights in the easement. Later, when the tracks were abandoned, the limited use ceased to exist. There was no need to change ownership because the land reverted back to the Brandts, as owners of the land through the patent.

The federal government disagrees, and has argued in lower courts that the reversionary interest in the land is their’s since it was public land in the first place. The patent, they contend, did not transfer title to the Brandts in the area where the limited fee existed. In short, they believe they still own the land where the railroad tracks had been, even though the railroads long go abandoned them. The government has, therefore, sought to quiet title in the land (for the Brandts as well as other property owners in the area) so that they can use the railroad tracks for conversion to recreational trails.

The question in the case, then, is whether the 1875 legislation granted an implied reversionary interest in the land for the federal government.  And the answer turns on whether it was an easement (in which case, the reversionary interest is the Brandts’) or a limited fee (in which case, the government claims they have the title to the land).

For supporters of the rail conversion programs, this case is frightening. If the Court finds for Brandt, areas that were part of the right of way granted by the 1875 act will have to be purchased, or an easement will have to be obtained, or there will be no public recreational trail through that land. An alternative will have to be found. This can become a very costly proposition, making rail conversions much more difficult in many places. Keep in mind, however, that not all the railroad tracks that are abandoned were part of the rights of way granted in the 1875 act under scrutiny in this case. Therefore, every abandoned track in the country will not be subject to the ruling. Some were on land owned and run by the railroads themselves; other lands were granted through other types of land transactions to the railroads; and still other land was held by state governments or other private entities. Anyone who thinks there’s a track that could be converted has to do their homework already, and more work may be the cost of a decision against the government in this case. Fortunately, there are great organizations that can help figure some of this out, such as the Rails To Trails Conservancy.

My researcher self sees the case as a great example of how historical developments complicate private property. Large, national programs continue, in these disputes, to impact private owners well over a hundred years later. Property disputes are not unique in presenting their history through a multitude of public sources. We document land so carefully, however, that property disputes provide incredibly helpful insight in understanding the development of public policy and disputing behavior because there are long-term and rich records. If one contextualizes them and reads them with a mind to broader political, economic and social forces, the past is alive again and we can gain some leverage on why policies that are popular, like the rail conversion program, can become so hotly disputed. As much as I love the trails I’ve been on that were created through this program, I can see why private owners may not want the members of the public walking, biking, or hiking through their land, particularly if they have little say as to which of those activities will be allowed, what will happen if the public litters or damages the land, or if they simply have another use in mind for it. Ownership needs to be clarified, and then we need to decide how to proceed.

As in many property rights claims, there are competing norms at work. Here, the rights of ownership (which are tied directly to economic development) versus the ability to use recreational spaces (which are also tied directly to economic development) are vying for our attention. We will see what the Supreme Court does.  In the meantime, when I have updates on the status of the case, I’ll post them.

SCOTUSblog, a great resource for finding Supreme Court analysis, has posted documents related to the case here.

The lawyers for Brandt, Mountain States Legal Foundation, have posted materials relating to the case, including their press release.