Supreme Court Hears Oral Argument in Rails-to-Trails Property Rights Case Today

Today, the U.S. Supreme Court hears argument in Marvin M. Brandt Revocable Trust v. United States, No. No. 12-1173, a Rails-to-Trails takings case.  At the core of the dispute between the landowner and U.S. Forest Service is the meaning of the term railroad “right of way” as used in the 1875 General Railroad Right of Way Act and whether the federal government retained an “implied reversionary interest” in railroad rights of way granted under the Act.  Brandt contends that the land grants were subject to a railroad easement which expired when the railroad abandoned use.

In this case, the railway abandoned use of the easement.  Then the federal government instituted a quiet title action in federal court claiming it owned the land beneath the right of way rather than the property owner who holds title to the larger parcel surrounding the former railroad easement.   The Tenth Circuit, contrary to every other court that has considered this issue, held that that the United States, rather than the private landowner, acquired ownership of the land by “implied reversionary interest” when the railroad was abandoned.

Owners’ Counsel of America and the National Federation of Independent Business (NFIB) filed an amici brief in support of the Petitioner/Landowner, which argues that if the Court accepts the theory advanced by the government, an entire class of rails-to-trails takings cases would be eliminated.   The brief, authored by OCA Hawaii member, Robert Thomas, makes two distinct points. First, if the Tenth Circuit’s decision is accepted and applied nationwide as the Government has urged in its brief in this case, an entire class of takings claims will be eliminated. Second, the Supreme Court’s decision in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942) is supported by the common law definition of right of way prevailing at the time of the 1875 Act.  In Great Northern, the Court held that railroad rights of way granted by Congress under the 1875 Act are easements for the limited purpose of railroad use.  In the absence of an express indication by Congress of contrary intent, statutory terms used by Congress should be interpreted as having the meaning commonly assigned to them at the time.

More commentary on the case is available on Robert’s blog here and here as well as our previous posts here and here.  Check out SCOTUSblog for a preview of the issues and argument here.

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