The federal government loses its control of land that's granted to railroad companies after the track has been abandoned, the U.S. Supreme Court ruled Monday. The court sided with a private landowner in Wyoming who is fighting efforts to convert disused tracks into a bike path near his house.
The court's decision overturns decisions by district and appeals courts. The wider impact of the ruling is difficult to estimate, partly because the U.S. government doesn't have a central database of the land it owns under such circumstances, as SCOTUS Blog has reported.
The justices and attorneys acknowledged that uncertainty during oral arguments over the case in January.
"For all I know, there is some right-of-way that goes through people's houses, you know," Justice Stephen Breyer said, "and all of a sudden, they are going to be living in their house and suddenly a bicycle will run through it."
Today's ruling could have "implications for about 80 other cases involving some 8,000 claimants," according to USA Today. "Tens of thousands of other property owners also could emerge as victors."
The plaintiffs in the Wyoming case, Marvin Brandt Revocable Trust v. United States, are descendants of the owner of a sawmill that produced railroad ties. The family was granted dozens of acres of land in Medicine Bow-Routt National Forest; they are resisting attempts to use part of that land for a trail.
"We traded for the land with a right of way on it for railroad uses," Brandt said in December. "They want to bring a train through here, that's fine. We never expected and we never agreed to a bicycle trail."
That's a quote from a profile of the case in the journal Environment & Energy. Here's more from the article:
"The mill is long gone, and — to Brandt's eye — his view is ruined by a Forest Service bicycle trail that runs behind his property, then bisects his 83-acre tract, which is about 50 miles west of Laramie.
"Brandt, 69, has protested the trail since the Forest Service proposed converting the abandoned railway for recreational use nearly a decade ago. He claims that once the railroad abandoned the government-issued right of way in the mid-1990s, he gained ownership of that land."
The family was granted the land in 1976, in exchange for turning a larger acreage over to the government. The court's discussion of the case touched on decades of law, from the 1875 Railroad Right of Way Act to the 1942 Great Northern Railway case, which centered on oil and mineral rights.
When the Forest Service moved to convert a swath of former railroad track on the Brandts' land that is 200 feet wide and 10 acres long into bike trails, the family sued. After losing in two lower courts, they emerged from the Supreme Court with a victory today.
With 21 miles of gravel pathway passing through the forest, the Medicine Bow Rail Trail "has become one of the most popular rail-trails in America," according to the Rails-to-Trails Conservancy.
The organization, which filed papers with the court siding with the U.S. government, says the Brandt family's legal fight has been aided by groups such as the Mountain States Legal Foundation, the Cato Institute, and the Pacific Legal Foundation.
In the Supreme Court's opinion issued Monday, the majority noted that although the family's land grant came with restrictions that included the use of roads on the property, "if those roads cease to be used by the United States or its assigns for a period of five years, the patent provides that "the easement traversed thereby shall terminate."
The lone dissenting vote in the case came from Justice Sonia Sotomayor, who wrote that her colleagues erred in its interpretation of or reliance on a 1942 decision that involved oil and mineral rights on federal land that is tied to railroads' right of way.
The majority's opinion "does not meaningfully grapple with prior cases... that expressly concluded that the United States retained a reversionary interest in railroad rights of way," Sotomayor wrote.
Writing for the majority in the case, Chief Justice John Roberts wrote that the grant of land, or patent, "did not specify what would occur if the railroad abandoned this right of way."
During oral arguments earlier this year, discussion of the case also centered on the differences between an easement and a fee. Here's a relevant exchange from the court transcript:
JUSTICE KENNEDY: Is there any doctrine in property law that if a right of access is granted and its to the exclusion of all other uses, it's — it looks for all purposes like absolute control, that it ceases to be an easement and becomes a limited fee? I mean is there some magic that takes place in property law so that if there's a grant that conveys such total control, is it construed not to be an easement?
MR. LECHNER: I don't know of any.
JUSTICE KENNEDY: I've never seen it.
MR. LECHNER: Roads, highways are conveyed -
JUSTICE SCALIA: Have you even heard of the term "limited fee" until this case? I never heard it.
MR. LECHNER: Well, I read these -
JUSTICE SCALIA: James Casner didn't talk to me about limited fee.
MR. LECHNER: I read these cases in law school so I was aware of the term.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
The case is submitted.
In her dissent, Sotomayor wrote that the justices were shifting the court's position on rights of way that it established in 1903. The issue is broader than whether rights are termed "easements" or "fees," she said. She concluded:
"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 American taxpayers hundreds of millions of dollars."
The very first person we thought to for our Sense of Place series in Austin was longtime resident Alejandro Escovedo. Make no mistake: Escovedo was born and raised in San Antonio, but has called Austin home for years. Today he reminisces about coming to Austin as a kid and tells how it was a tour stop with Rank and File, his band with his brother Javier, that convinced him to move back to Austin. Alejandro is a connector and a bridge between eras of Austin music and recently hosted a show telling the city's music history.
Listen to the interview and three songs he recorded with World Cafe for the release of his 2010 album Street Songs of Love. While Alejandro has often been the subject of his albums, particularly in the wake of his battle with Hepatitis C, Street Songs was not an autobiographical album as in the past. Escovedo sets the scene for our Sense of Place week in Austin.
If there's anything most of us are tired of this winter, it's bone-chilling cold.
It's enough to drive you to drink.
Literally. Because frigid weather is just what some enterprising artisans need to make a dessert wine that has been showing up on trendy tables and menus. Ice cider was invented in Quebec in the 1990s. This time of year, it's fermenting on the other side of the border as well, as a few snowy states try to tap into the locavore market and turn perishables into profits.
The first American maker to have a federally approved label is Eden Ice Cider, which got its start about eight years ago in a rural corner of Vermont known as the Northeast Kingdom. That's when Eleanor Leger, a Vermonter, and her husband, Albert, a Canadian, were sipping apple liqueur in Montreal, and wondering, "Why doesn't anybody make this stuff on our side of the border?" Vermont usually has more than enough ice and apples of its own, plus long cold spells needed to concentrate flavor.
Eleanor says this has been the best winter ever. At the end of each fall, she and her husband press cider from their 1,000 apple trees (and from a few other orchards) and stick the plastic vats in cold storage. After the first frost, they drag them outdoors. This crazy year, the stuff has frozen, almost thawed, and frozen several times. That makes for a rich, concentrated apple elixir — and lots of it. Yield is important, because about 75 percent of the original cider is left behind in an icy block after the concentrate drizzles out, ready for fermentation.
Now the amber liquid is bubbling away in steel vats along the walls of a big cellar. Albert — sometimes with his Canadian enologist — tastes it just about every day to decide when to stop the fermentation. Ice cider makers aim for a subtle balance of apple, sugar, and acidity. Each variety of late-season apple creates a different flavor. Honey Crisp apples, for example, have a hint of honey, though no bees were involved.
A lot of people who don't love sweet dessert wines like ice cider. Apples are naturally more tart than grapes, so they leave a crisper, fresher aftertaste. And apples may be New England's true terroir. Though Calvinists might have frowned on turning a Northern Spy into a thimbleful of booze, hard apple cider was a popular alcoholic drink in Colonial America. Now that it's making a comeback with brands like Woodchuck, ice cider wine seems to be riding on its coattails.
Eden, Vermont's largest producer, is filling about 40,000 bottles a year, and it's available in at least 20 states. Vermont has sprouted at least five other ice cider makers, with more likely to venture into the orchard as the trend takes off.
So what else can you do with this alcoholic ambrosia, besides sip it? At 30 bucks a bottle, most thrifty New Englanders serve it in slender stemmed goblets on special occasions.
Martha Stewart gave it a thumbs up for Thanksgiving fare. You can also shake it up in cocktails. Eden has just come out with an aperitif cider infused with red currants and bitters, and they are now fermenting something like an apple champagne.
"We want Vermont to be known for ice cider," Eleanor Leger says. "This is apple country."
But Maine, New York, Michigan, and Washington are starting to ride the ice cider wave, too. The question is not whether they have enough apples. The real test will be whether they have enough ice.
There, at least this year, far northern Vermont may have them beat.
Elections for governor could provide some good news for Democrats this fall, giving them the chance to regain ground in a few states where the party has had good fortune recently.
It's not hard to imagine that even as Democrats suffer losses at the congressional level, they could gain some ground in the states.
At this early stage, Republicans are expected to hold control of the House and pick up seats in the Senate — maybe even win a majority in the Senate.
But the GOP has fewer opportunities when it comes to statehouses. Republicans dominated state elections back in 2010, leaving them few openings this year. (Governors serve four-year terms everywhere but Vermont and New Hampshire.)
Republicans gained six governorships in 2010. They have a 29 to 21 edge over Democrats overall.
There are 36 governorships up for grabs this year. Over the coming weeks, NPR will be looking at the most competitive and compelling races among them.
"You had a lot of Republicans win governorships in 2010 and some of them are going to be vulnerable, particularly in those blueish-leaning states," says Justin Phillips, co-author of The Power of American Governors.
But Phillips says there might not be as many vulnerable Republicans as some observers had expected a couple of years ago.
There are governors who pushed controversial programs early in their terms, but have since moderated their message. They may also benefit from President Obama's current unpopularity, Phillips says.
"Democrats will probably hold maybe one or two more governorships next year than they do now, but I wouldn't expect there to be a huge turnover, or for the Democrats to hold more governorships than Republicans next year," says Kyle Kondik, managing editor of the University of Virginia's political website Crystal Ball.
A Lot Like 1986
Kondik compares this year to 1986. Then as now, many senators of the president's party were vulnerable. In fact, Democrats took control of the Senate that year, ousting a number of Republicans who had been elected along with President Ronald Reagan in 1980.
But Republicans gained governorships that year. And something similar might happen this fall.
Several Democratic senators elected from red states such as Alaska and Arkansas during Obama's big win in 2008 are looking vulnerable. But there are Republicans serving as governor in no fewer than 10 states that Obama carried in both his presidential elections.
Virginia Democrat Terry McAuliffe prevailed in one such state last year, breaking the commonwealth's longstanding practice of electing governors from the party that doesn't control the White House.
Several Republicans swept in with the GOP tide in 2010 might be washed away this year; the list of most vulnerable governors includes Tom Corbett of Pennsylvania, Paul LePage of Maine and Rick Scott of Florida.
Rick Snyder of Michigan is also a Democratic target, but he appears to be in better shape. In fact, not all the blue and purple state Republicans are looking particularly vulnerable.
Some who pushed controversial programs early in their terms, such as John Kasich of Ohio and Scott Walker of Wisconsin, have had time to recover their footing and now look like favorites.
Able To Appear Moderate
Today's governors may be more partisan than their predecessors, but they still have the chance to craft a moderate image, focusing on big-picture issues such as the budget and jobs while leaving contentious social issues to legislators.
"We've seen just as many cases of governors making moderate turns," says Thad Kousser, a political scientist at the University of California, San Diego. "Part of why [Democratic Gov.] Jerry Brown is not facing a major challenge is that he's really governed from the center in California."
Next door in Nevada, Republican Brian Sandoval's focus on education and health — including his embrace of the Affordable Care Act — has kept his approval ratings high in a state that twice voted for Obama. In fact, Democrats have yet to field an opponent against him.
Incumbent governors in general are tough to beat. Even as they made their gains in 2010, Republicans defeated only two incumbent Democrats (Chet Culver of Iowa and Ted Strickland of Ohio).
Not every governor has announced his or her plans yet, but more than 25 of them will be running for re-election this year.
A few sitting governors could run into difficulty, either because the economy remains weak in their states or because their own policies have proven to be unpopular.
Kansas Republican Sam Brownback, for instance, has managed to alienate even many members of his own party with his strongly conservative agenda. Several blue state Democratic incumbents could also be at risk, including Pat Quinn of Illinois, Neil Abercrombie of Hawaii and Dannel Malloy of Connecticut.
"Of the six states where there's likeliest to be turnover, three are Republicans and three are Democrats," Kondik says.
Republicans have their eye on Arkansas, where popular incumbent Democrat Mike Beebe is prevented from running again by term limits. The state has been trending Republican — not only strongly opposing Obama, but giving control of the legislature to the GOP two years ago for the first time since the 19th century.
Arkansas is a place where an anti-Obama tide isn't the only Democratic worry — the attention and resources being devoted to a Senate race also could have a spillover effect on the governor's race.
But in most places, the governorship is a prominent enough position that candidates should be able to stand, or fall, on their own.
That's led some political observers to think this year's elections will end up reflecting the 50-50 divide in the country.
The conventional wisdom at this point is that Republicans will gain seats in Congress — as the party not controlling the White House nearly always does in mid-term elections.
But Democrats can cut against this grain by taking back a few governorships — which would be especially satisfying in big states like Pennsylvania and Florida.
Edward Snowden, the former National Security Agency contractor who has leaked large amounts of classified information about the agency's electronic surveillance programs, spoke via video to a sympathetic audience at South By Southwest Interactive on Monday.
Snowden, who is wanted for prosecution in the U.S., was in Russia, where he's been given temporary asylum. Repeating things he's said before, Snowden declared Monday that he would do what he did all over again because he had seen the Constitution being "violated on a massive scale."
The Obama administration disagrees, though Snowden's revelations did begin a process that earlier this year led the president to say he wants the NSA to stop holding on to massive amounts of "metadata" about the phone calls and electronic communications of millions of people around the world.
We posted some highlights from Snowden's comments. As you'll see, he faced no tough questions.
Earlier today, All Tech Considered previewed his SXSW appearance.
Update at 1:02 p.m. ET. Would He Do It Again? "Absolutely Yes":
The last question to Snowden is about whether he would do what he's done again. "Absolutely yes," he says, adding that he "took an oath to support and defend the Constitution and I saw the Constitution ... being violated on a massive scale."
The surveillance programs, he adds, take the Constitution's prohibition against unreasonable searches and seizures and turn it into "any seizure is fine, just don't search it."
Update at 12:59 p.m. ET. The Problem With Contractors:
Snowden has worked both inside the government and for contractors outside it. The problem with contractors, he says, is that "they aren't accountable."
Update at 12:50 p.m. ET. A Tor Endorsement:
A Twitter query about what the average person can do to protect their online communications prompts Snowden to talk about Tor, the "mixed routing network" that can make it much harder to track online activity.
Update at 12:45 p.m. ET. Another Question For Snowden From The Web. Who Are You To Decide?
"On what basis do you get to be the person to unilaterally decide what material remains classified & what gets released?" (Tweeted here.)
We'll watch to see if that's asked.
Update at 12:40 p.m. ET. Question From The Web. What About Crimea?
"What are you doing in Russia now that the Crimea situation is escalating?"
We'll watch to see if that's asked.
Update at 12:30 p.m. ET. Does Mass Surveillance Distract The Security Agencies?
Snowden argues that "we've actually had tremendous intelligence failures because we're monitoring the Internet ... everybody's communications, instead of the suspects' communications." His example: Tips about the brothers' accused in the Boston Marathon bombings may not have been thoroughly pursued because the surveillance programs were given priority.
Update at 12:25 p.m. ET. Says He's Not Weakening Nation's Security, NSA Is:
It's pointed out to Snowden that the NSA believes his revelations have harmed national security. His response? The NSA has "elevated offensive operations — that is, attacking — over the defense of our communications." And that, in Snowden's view, has made the nation less secure.
He makes the case that without a well-defended communications system, "our economy can't succeed."
Update at 12:15 p.m. ET. The Constitution As A Backdrop:
The background behind Snowden (presumably thanks to a "green screen" projection), is an image of the U.S. Constitution.
Note: NPR is not a SXSW sponsor, but our friends on the Music Desk are webcasting music from there and some NPR staff are appearing on some SXSW panels.