OCA’s Supreme Court Amicus Brief Seeks to Block the Government’s Efforts to Derail Rails-to-Trails Takings Cases

FOR IMMEDIATE RELEASE

November 21, 2013 – Jacksonville, FL – The Owners’ Counsel of America (OCA) and National Federation of Independent Business (NFIB) Small Business Legal Center* filed an amici curiae brief in support of the landowner in Brandt v. United States, No. 12-1173 (cert. granted October 1, 2013) urging the United States Supreme Court to reverse a Tenth Circuit Court of Appeals decision which held that the United States retained an implied reversionary interest in railroad rights of way.

“At first glance it may appear that this case just involves an abandoned rail line in Wyoming, but its’ outcome has nationwide implications.  If the Tenth Circuit’s ruling is upheld, any property purchased from the United States would be subject to the fluctuating policies of the government,” said Karen Harned, executive director of the NFIB Small Business Legal Center.  [Read the NFIB’s news release announcing the brief filing here.]

This case involves the conversion of an abandoned railway line transgressing private property to a public recreational trail under the National Trails System Act, 16 U.S.C. § 1241. The Brandt family property in Albany County, Wyoming is bisected by a railroad right of way granted under the General Railroad Right-of-Way Act of 1875 (“1875 Act”), 43 U.S.C. §§ 934-939.  The railroad abandoned the easement in 2003.  In 2005 under the National Trails System Act, 16 U.S.C. § 1241, the U.S. Forest Service issued a notice of intent to convert the abandoned railway crossing the property into a national trail.

The United States then sought to acquire ownership of the land underlying the railway easement by filing a complaint for declaratory judgment of abandonment and quiet title to the right-of-way (D.Wyo., No. 06cv184) asserting that it owns the land beneath the easement.  In United States v. Brandt, 2012 WL 3935613 (C.A.10 (Wyo.)), the Tenth Circuit, held that the U.S. retained an implied reversionary interest in the right of way and acquired ownership of the land underlying the easement upon abandonment by the railroad.  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 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. (Our previous post here provides some additional detail and history of the case.)

“Over the last decade, the Government has unsuccessfully argued a number of legal theories in rails-to-trails takings cases in both the Federal Circuit and Court of Federal Claims,” explained Robert H. Thomas.  Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii attorney-member of OCA, prepared the brief on behalf of OCA and the NFIB Legal Center.  “The Government’s position in this case appears to be a new strategy that is nothing more than a backdoor way to avoid paying just compensation in cases that it keeps losing.”

The brief filed by OCA and the NFIB Legal Center 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.

“This case presents the Court with the opportunity to provide definitive guidance that terms in a federal statute that are not expressly defined by Congress, but which have a commonly understood meaning, are not wholly malleable,” said Thomas.  “If the Tenth Circuit’s decision is allowed to stand, the Government’s strategy to redefine the property rights of landowners owning land subject to the 1875 Act will become the law of the land, eliminating an entire class of takings claims without justification.”

“We are pleased that the Court has agreed to review this extremely important case, the result of which may affect thousands of property and business owners nationwide,” said Luke A. Wake, an attorney with the NFIB Legal Center.  “If the government can redefine the common law meaning of ‘right of way’ in this case, landowners across the country will lose their Constitutional guarantee to just compensation under the Fifth Amendment.”

Owners’ Counsel of America and the NFIB Legal Center request the Supreme Court reverse the Tenth Circuit’s decision and find that railroad rights of way under the 1875 Act are easements that become extinguished upon abandonment entitling the reversionary landowners to continue pursuing claims for just compensation when their private property is taken for public use.  The case is scheduled for oral argument January 14, 2014.

*The NFIB Small Business Legal Center is a 501(c)(3) organization created to protect the rights of America’s small business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation’s courts. The National Federation of Independent Business is the nation’s leading small business association, with offices in Washington, D.C. and all 50 state capitals.

Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae of Owners’ Counsel of America and Nation… by robert_thomas_5

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