Amici Brief: On Unsettled Questions Of State Law In Takings Cases, Federal Courts Shouldn't Guess
Here's the follow up to that cert petition we recently posted. In Romanoff v. United States, 815 F.3d 809 (Fed. Cir. 2016), a rails-to-trails case, the Federal Circuit was confronted with a question about how New York property law treated an easement. In that case, the easement was granted for railroad purposes, and after the railroad stopped using it, the City of New York converted it into a public recreational park, the vaunted "Highline."
Of course, no one bothered to pay the owner of the reversionary interest just compensation as the Fifth Amendment requires, so it was forced to bring a claim in the Court of Federal Claims to recover compensation. That court, affirmed by the Federal Circuit, concluded that the reversionary owner owned nothing, because the easement its predecessor had granted wasn't really for railroad purposes, but allowed the grantee to do anything with the property that it desired.
The idea that an easement (a limited interest in property) could be read by a federal court to allow virtually any use, was not only offensive to New York law, but property law pretty much anywhere. So the owner asked the federal courts to certify the question of state law to state courts. The Federal Circuit refused to do so, and in essence took its best guess about what New York law said about these easements.
That's the basis of the cert petition, and the amici brief we filed today in support. The list of amici is pretty impressive: our own Owners' Counsel of America, the NFIB Small Business Legal Center, the Cato Institute, lawprofs Paula Franzese and James Ely, the National Association of Reversionary Property Owners, the Property Rights Foundation of America, and the Citizen Advocacy Center. Like we said, long list.
Here's the Summary of Argument from our brief:
Words have meaning. Especially words in a document conveying an interest in real property. These words must be viewed in light of the intent of the parties as expressed by the terms of the instrument, state law, and the “special need for certainty and predictability where land titles are concerned.” Leo Sheep Co. v. United States, 440 U.S. 668, 687-88 (1979). This rule does not exist for its own sake, but because it forms the foundation of every civil right. The Federal Circuit violated these principles when instead of certifying the question to the New York courts, it discovered in the Romanoff conveyance something never before seen in New York law: a “general easement,” which can be used “for any purpose for which the grantee wishes.” In doing so, it permitted the Romanoff family’s property—conveyed for railroad purposes—to be pressed without compensation into public service as a recreational space. This brief presents four arguments. First, property rights are the basis of a free society, and the foundation on which all other civil rights stand. Second, judicial federalism requires certification of novel state property issues to state courts. Third, by failing to certify the question to the New York Court of Appeals, the Federal Circuit undermined certainty and predictability by concluding that the words in the Romanoff conveyance mean something other than what they say. Fourth, the need for certification is greatest where a court of national jurisdiction considers takings claims based on novel issues of state property law.
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