OCA Files Amicus Brief in Support of Wyoming Landowner in “Rails-to-Trails” Takings Case Seeking SCOTUS Review

Today, the Owners’ Counsel of America (OCA) filed an amicus curiae brief in support of the landowner in Marvin M. Brandt Revocable Trust v. United States (12-1173) urging the United States Supreme Court to review a Tenth Circuit Court of Appeals decision in United States v. Brandt, 2012 WL 3935613 (C.A.10 (Wyo.)) which erroneously found that the federal government retained an “implied reversionary interest” in railroad rights of way granted under an 1875 Congressional Act. The Tenth Circuit, contrary to every other court that has considered the issue, held that that the United States, rather than the private landowner, acquired ownership of the land when the railroad was abandoned.

The Tenth Circuit acknowledged a “circuit split” in its opinion, noting a divergence from decisions in the Seventh Circuit, Federal Circuit and Court of Federal Claims all of which concluded the federal government did not have a reversionary interest in railroad rights of way when the underlying land had been conveyed to private owners.  “If the Tenth Circuit’s decision is allowed to stand, similarly-situated landowners across the country will be subjected to different federal rules, based solely on where their land is located.” said Robert H. Thomas, a Director at Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii member of OCA.

The History of the Brandt Case

In 1875, Congress adopted the General Railroad Right-of-Way Act of 1875 (“1875 Act”), 43 U.S.C. §§ 934-939. The 1875 Act allowed Congress to grant railroads right of way access and through publicly owned lands.  Congress later passed the Act of March 8, 1922, 43 U.S.C. § 912, which permitted the conveyance of title to the land under these railroad rights of way to homesteaders whom the adjacent property had been granted by land patent.  The 1922 Act provided that upon abandonment by the railroad, ownership of the right of way transferred to the private landowner.  In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), the Supreme Court clarified that the rights of way granted under the 1875 Act were easements for the limited purpose of railroad use.  In Great Northern and subsequent cases, however, the Court has not provided a specific definition of the term “easement” in the context of the 1875 Act which opened the door to the current litigation.

The Brandt family acquired 83 acres in Albany County, Wyoming by land patent from the U.S. Forest Service in 1976.
The land was bisected by an 1875 Act railroad right of way, later abandoned by the railroad in 2003.  In 2005 under the “Rails-to-Trails” statute (National Trails System Act, 16 U.S.C. § 1241), the Forest Service issued a notice of intent to convert the abandoned railway crossing Brandt’s and neighboring properties into a recreational trail. This should have triggered Brandt’s claim for compensation under the Fifth Amendment’s Takings Clause, but the federal government then sought to confirm that it —and not Brandt — owned the land. It sued Brandt, seeking a ruling that when the government granted the right of way to the railroad, it retained an implied right to recover ownership if the railroad ever ceased operating (D.Wyo., No. 06cv184).

Mountain States Legal Fund represented Brandt before the Court of Federal Claims and the Tenth Circuit Court of Appeals.  MSLF also filed the Petition for Certiorari with the Supreme Court.  More on the procedural history of the case is available on the MSLF website here.

OCA’s Amicus Brief – A Summary of the Argument

Robert Thomas prepared the brief on behalf of OCA and was joined by his law partner Mark M. Murakami and Damon Key attorney Bethany C.K. Ace.  The brief’s Summary of the Argument is excerpted below.

Unable to prevail on a variety of theories in rails-to-trails takings cases in the Federal Circuit and the Court of Federal Claims (CFC) for more than a decade, the Government appears to have switched tracks. Instead of continuing its fruitless frontal attacks on these takings claims—efforts that repeatedly have been rebuffed by the courts—the Government in this case has sought to undermine the very notion of property by redefining the “rights of way” granted for railway uses under the 1875 Act from easements that are extinguished when no longer used for a railroad, to “implied reversionary interests.”

This brief makes two points. First, the Government’s strategy to redefine property rights based on the 1875 Act will virtually wipe out an entire class of takings claims without justification. Second, this Court’s decision in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942)—holding that 1875 Act rights of way are easements—is supported by the common law definition of “right of way” prevailing at the time that the 1875 Act was adopted. In the absence of evidence of contrary intent, statutory terms used by Congress should be interpreted as having the meaning commonly assigned to them at the time. This case presents the Court with the opportunity to provide definitive guidance that terms in a federal statute that are not defined by Congress are not wholly malleable, and OCA respectfully asks this Court to review the important issues raised in the petition.

Because the Tenth circuit’s decision created a circuit split and has the result of subjecting similarly-situated landowners across the country to differing federal rules depending upon whether their land is located within the Tenth Circuit’s jurisdiction or not, we are hopeful that the Court will grant review.

For more on Brandt, visit Robert Thomas’s blog here, here and here.

To view OCA’s news release dated April 25, 2013, visit here.

Brief Amicus Curiae of Owners’ Counsel of America in Support of Petitioners, Brandt v. United States, No. 1… by robert_thomas_5

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