Here's the amici brief we are filing (along with our firm colleagues Mark Murakami and Bethany Ace) in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That's the case in which the Court is considering the meaning of the term railroad "right of way" as used in an 1875 federal statute.
As we explained here, although this case is a quiet title action out of a Colorado U.S. District Court, it could have huge implications for rails-to-trails takings cases in the Court of Federal Claims and the Federal Circuit. The issue is whether the federal government retained an "implied reversionary interest" when it issued railroad 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 district court asserting it owned the right of way, and that it did not revert to the property owner. The Tenth Circuit, in contrast to other courts, held that the right of way is subject to an implied reversionary interest in favor of the United States, meaning that the property owner doesn't have "property" that was taken when the railroad was abandoned and was turned into a recreational trail. The merits brief of the petitioners is posted here.
We're filing the amici brief on behalf of our colleagues at Owners' Counsel of America (check out footnotes 2 and 3 starting on page 2 of our brief if you want to know a bit about what kind of firepower OCA has), and the National Federation of Independent Businesses Small Business Legal Center.
Our brief argues:
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."This brief makes two points. First, the Tenth Circuit’s conclusion if accepted and applied nationwide as the Government urges, will eliminate an entire class of takings claims, and is nothing more than a backdoor way to avoid paying just compensation in cases that the Government keeps losing. 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 an express indication 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.
OCA and NFIB Legal Center respectfully ask this Court to reverse the Tenth Circuit and hold that railroad rights of way under the 1875 Act are easements, and the reversionary owners are entitled to continue to pursue claims for just compensation when their property is taken for public recreational trails.
Stay tuned. More amici briefs are coming, and we'll post them when they are filed.
