This week, the Supreme Court ruled that the United States Forest Service could not construct a trail on an abandoned railroad right of way (ROW) that crosses through private property. Brandt v. United States, No. 12-1173, 2014 WL 901843 (U.S. Mar. 10, 2014). This ruling represents a major shift regarding the appropriate use of rights of way and has a strong potential to spur thousands of landowner lawsuits all across the country.

The decision is being hailed by property rights activists as a major victory, but Justice Sotomayor, the sole dissenting justice, warned that the majority’s ruling will be extremely disruptive to the historical use of abandoned railroad ROWs, stating that: “since 1903, this Court has held that rights of way were granted to railroads with an implied possibility of reverter to the United States . . . By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost the American taxpayers hundreds of millions of dollars.” Brandt, 2014 WL 901843, at *15 (U.S. Mar. 10, 2014) (Sotomayor, J., dissenting).