OCA Files Amicus Brief in “Rails to Trails” Takings Case Seeking Review by the U.S. Supreme Court

The Owners’ Counsel of America (OCA) has filed an amicus brief in support of the landowner in Brandt v. United States (12-1173) urging the United States Supreme Court to review the decision of the Tenth Circuit Court of Appeal and resolve a “circuit split” concerning whether the United States has a reversionary interest in railroad rights of way crossing privately-owned lands under a 1875 Congressional Act.

The Tenth Circuit acknowledged a “circuit split” in its opinion in United States v. Brandt, 2012 WL 3935613 (C.A.10 (Wyo.), noting a divergence from decisions in the Seventh Circuit, Federal Circuit and Court of Federal Claims which have held that the United States did not have a reversionary interest in railroad right of way when the underlying land had been conveyed to private owners. The Tenth Circuit’s decision held that the United States retained an implied reversionary interest in railroad right of way and that the Federal Government, rather than the private landowner owning the adjacent patented lands, acquired ownership of the land when the railroad abandoned the easement.

“If the Tenth Circuit’s decision is allowed to stand, similarly-situated landowners across the country will be subjected to varying federal rules, based solely on where their land is located.” said Robert H. Thomas. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii attorney-member of OCA, prepared the brief.
In 1875, Congress passed 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 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 Act of March 8 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 failed to provide a specific definition of the term “easement” in the context of the 1875 Act opening 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 right of way, later abandoned by the railroad in 2003. In 2005 under the 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 national trail. The United States then sought to acquire ownership of the railway easement by filing a complaint for declaratory judgment of abandonment and quiet title to the right-of-way (D.Wyo., No. 06cv184) on July 14, 2006. The Government has asserted that it owns the land beneath the abandoned railroad easement crossing Brandt’s land. Brandt, through his attorneys at Mountain States Legal Foundation, has fought against that argument.
“In Brandt, it appears that the Government instituted a quiet title action as part of a new strategy to wipe out an entire class of rails-to-trails cases by securing a ruling that owners of land subject to the 1875 Act rights of way do not actually own the property under the right of way and, therefore, do not have a claim,” said Thomas.

“Over the last decade, the Government has been unsuccessful in a number of theories argued in rails-to-trails takings cases in the Federal Circuit and Court of Federal Claims,” explained Mark M. Murakami, Thomas’s partner at Damon Key Leong Kupchak Hastert and co-author of the brief. “Perhaps, the U.S. decided to switch tracks in Brandt in hopes of finally prevailing.”

OCA’s brief contends that if the Government’s strategy to redefine the property rights of landowners owning land subject to the 1875 Act is successful, the Government will eliminate an entire class of takings claims without justification. The brief further argues that the Tenth Circuit’s conclusion that the term “right of way” as used in the 1875 Act signified the conveyance of a fee interest to the railroads with an implied right of reversion to the United States not only conflicts with the Supreme Court’s ruling in Great Northern, but also strays greatly from the common law meaning of the term. For the U.S. to advocate a departure from the common law understanding of “right of way” with regard to the 1875 Act, it must demonstrate that Congress intended to change the common law meaning. Yet, the legislative history surrounding the enactment of the 1875 Act suggests Congress had no such intent.

“The high court’s review is extremely important in this case, as it may affect thousands of property owners nationwide,” said Bethany C.K. Ace, who joined Thomas and Murakami on the brief. “If the Federal Government is allowed to redefine the common law meaning of right of way in Brandt without impunity, it will no longer be liable to pay just compensation to those landowners.”

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