The federal government has filed its brief responding to the cert petition which asks the Supreme Court to review a Tenth Circuit decision and resolve a lower court split about the meaning of the term railroad "right of way" as used in an 1875 federal statute and federal land patents subject to the 1875 Act.
The issue is whether the federal government retained an "implied reversionary interest" when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the right of way, and that it did not revert to the property owner.
Disclosure: we filed an amicus brief in the case supporting the petition. Our brief argues that the case was an attempt to undercut takings claims in which the plaintiff's rights are based on a patent subject to the 1875 Act, since the government's track record in the Court of Federal Claims and the Federal Circuit isn't very good. Because it has been unable to prevail on a variety of theories in rails-to-trails takings cases in the 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." Our brief argues that 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.
The government's brief doesn't challenge those arguments, made in our brief and the other amicus briefs (see also here) filed supporting the property owner. Indeed, the government's brief agrees there is a circuit split, and that the Court should grant cert and resolve it. The only dispute is on the underlying merits, and the government seems to have doubled down on its strategy: it now wants to wipe out these type of takings claims nationwide, and not just in the Tenth Circuit:
As petitioners note (Pet. 32-33), and as the court of appeals (Pet. App. 5-6) and the district court (id. At 26) recognized, the decision below conflicts with the Federal Circuit’s decision in Hash v. United States, 403 F.3d 1308 (2005), which held, in the context of a suit seeking
just compensation for a taking under the Fifth Amendment, That the United States did not “retain” a “reversionary interest to the land underlying [1875 act] rights of-way after disposing of the land by land grant patent under the Homestead Act.” Id. At 1318. Moreover, the Seventh Circuit has, in dictum, concluded that Hash "make[s] better sense than [the Tenth Circuit's decision in] Marshall.” Samuel C. Johnson 1988 Trust v. Bayfield Cnty., 649 F.3d 799, 803 (2011). By contrast, the Ninth Circuit has, in dictum, agreed with Oregon Short
Line that Section 912 applies to rights-of-way granted “both before and after 1871.” Vieux v. East Bay Reg’l Park Dist., 906 F.2d 1330, 1335, cert. denied, 498 U.S. 967 (1990). There is also disagreement in state courts of last resort.. . . .Whether the United States has reversionary interests in 1875 Act rights-of-way is a question of sufficient importance to warrant this Court's review.. . . .To date, thousands of claims pertaining to 1875 Act rights-of-way have been filed. Under current Federal Circuit precedent, the United States will be obligated to pay just compensation on many claims in which ownership of the right-of-way is often a determining factor. Those claims could impose considerable financial liability on the United States and the public fisc, making it appropriate for this Court to review whether the United States holds a reversionary interest in an 1875 Act right-of-way.
Brief at 17-20.
The petitioner has declined to file a response, and the case will now be placed on the Court's calendar for consideration. Stay tuned, folks.