We finally got around to reading “What Lies Beneath,” an opinion piece from the New York Times that we’ve been saving in our to-read list since the spring, Linda Greenhouse’s musings on the U.S. Supreme Court’s 8-1 decision in Marvin M. Brandt Revocable Trust v. United States.
In that piece, Ms. Greenhouse notes that Brandt was one of those cases she pretty much didn’t care about (“I hadn’t read the briefs or the argument transcript, let alone attended the argument itself.”). In other words, it wasn’t about Citizens United, abortion, or religion, the usual things the reporters who cover the Supreme Court beat consider hot topics. No, this was one that — even after she read the opinion — “I had only a vague sense of what the case was about and none whatsoever of its significance, if any,” that it it concerned what happens when a railroad abandons a right of way, “and “the landowner won and the government lost.”
Seeking “enlightenment” in Justice Sotomayor’s solitary dissent, Ms. Greenhouse found in its last paragraph “a clue about why the decision might matter.” That last paragraph is the same one which we wrote about in this post, where Justice Sotomayor complains that the other eight Justices missed the importance of the case, and this decision could — horror of horrors — potentially cost the government “hundreds of millions of dollars.” As Ms. Greenhouse put it, “Aha – rails to trails.”
She rightly notes that court opinions often do not provide the larger context (“How far the Supreme Court should go to acknowledge the real-world context of its decisions is a question worth considering. Notice that I said context rather than consequences.”). But in our view, she entirely misses the real context of the Brandt case:
But context is another matter. It took only a quick perusal of the briefs (available through the court’s website) to see that the roots of the dispute between the Wyoming landowner and the government lie deep in the property-rights movement. The property owner had lost in the lower courts, and briefs urging the justices to hear his appeal were filed by leading libertarian and property-rights-friendly organizations. The lawyer who argued on the landowner’s behalf, Steven J. Lechner, is the chief legal officer of the Mountain States Legal Foundation, long a prominent defender of Western land interests.
To see Brandt as only being about the property rights movement is to grasp only the effect, but not the cause. First, it wasn’t just the property owners who urged the Court to take the case. Instead of a brief in opposition, the government took the unusual step of agreeing with the property owner’s petition, and urged the Court to take the case. Second, as we explained in this post (and in our amici brief), the Brandt case was a quiet title action, instituted by the government, in which it sought to undermine the rights of reversionary landowners under established precedent, by pulling the floor out from under their takings claims. The government was hoping the Court would agree with its argument that the railroad grants were subject to the government’s implied reversionary interest, which resulted in the reversionary owners not having any property rights that could be taken. Which, of course, would render moot any claim for a taking when an abandoned railway is converted into a public recreational trail instead of beng returned to the private owner.
Property owners, you see, were on a win streak in the Court of Federal Claims and the Federal Circuit (some recent examples here), and the government’s obvious reason for instituting Brandt was to try and wipe out many of these (and future) takings claims. As our brief argued:
Unable to prevail on a variety of theories in rails-to-trails takings cases in the Court of Federal Claims (CFC) and the Federal Circuit for more than a decade, the Government appears to have switched tracks. Instead of continuing its fruitless frontal attacks on these takings claims—attacks which the courts have repeatedly rebuffed—the Government in this case has sought to undermine the very notion of property ownership 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.”
In other words, they drew first blood.
Thus, the win in Brandt was only an acknowledgement by the Court that the government’s strategy to undermine the rights of the reversionary property owners failed. And while Ms. Greenhouse is “grateful to Justice Sotomayor for cluing us in to what it’s about,” perhaps she should have not stopped with the dissent, which revealed only more trees, and not the actual forest.