Brandt Vs United States
March 13, 2014
Let’s start this off with a disclaimer – I am not an attorney and thus I do not give legal opinions.
This is just one person, who has some knowledge of real estate and railroads opinion.
Is the Foothills Trail in any danger based on this March 10, 2014 opinion of the United State Supreme Court, Marvin Brandt Trust vs The United State of America? The answer in my opinion as a resounding…. NO!
1) The discussion in Brandt pertains to railroad rights of ways created by Acts of the United States Congress in 1875 and after. Generally in Western Washington that would be the original main line rights of ways of the Great Northern Railway and the Chicago, Milwaukee, St. Paul and Pacific Railways.
2) The whole of the Foothills Trail is located on the former main line right of way of the Northern Pacific Railroad/Railway, which right of way was created by an Act of the U.S. Congress on July 2, 1864.The Brandt Court Case only pertains to Acts in 1875 and after, thus does not affect the Foothills Trail. In fact said Brandt discussion is not new case law but simply reaffirms a 1941 Decree of the U. S. Supreme Court.
3) IF, which it DOES NOT, said decision pertained to the Foothills Trail we have already done the steps necessary under the Brandt decision to make sure the Foothills Trail is safe. Pierce County acquired title from the adjacent owners and in some cases from the long ago parties who had rights within the N.P.s right of way whose rights were based on a Washington State Supreme Court decision in Roeder vs B.N.
4) The Trail right of way between Shaw Road and the McMillan Trailhead was acquired by Pierce County using an EXCEPTION in United States Code 43-912 which is commonly referred to as the railroad right of way abandonment law. That exception is called the “public highway exception”. Pierce County has declared the whole of that portion of the former Northern Pacific right of way as a public highway by Resolution of the Pierce County Council.
5) There is a small area of the Shaw Road to McMillan Trail that is “railbanked” but that was included in the Pierce County Resolution creating the “public Highway”.
I feel comfortable that the Foothills Trail, as it exists on March 13, 2014, is SAFE.
President of the Foothills Rails to Trails Coalition