Here's the amicus brief we filed today on behalf of our colleagues at Owners' Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).
That petition asks the Court to review a Tenth Circuit decision that continued 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 Brandt.
Our brief argues that this is 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.
Here's the Summary of Argument from the brief:
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.
Br. at 4.
There will be other amicus briefs, and we'll post those as they become available. With a clear circuit split and the attendant weird result (two similarly-situated landowners could have entirely different rights, depending on whether their land is in the Tenth Circuit, or elsewhere), we think there's a good chance this case will catch the Court's attention.
Brief Amicus Curiae of Owners' Counsel of America in Support of Petitioners, Brandt v. United States, No. 1...