Here's the latest in a case we've been following (because we filed an amicus brief in the Federal Circuit in support of the property owners, and will be filing a brief in support of the cert petition).
This is the case about New York City's "Highline," the abandoned elevated rail line which was converted into a public parkway. The problem, however, was that the federal government failed to pay just compensation to the owner of the railway easement, who was supposed to have the easement revert to it when the city stopped using it for a rail line.
The owner brought a rails-to-trails takings case for compensation in the Court of Federal Claims but that court, and the Federal Circuit, concluded that under New York law, the terms of the easement (what the Federal Circuit called a "general easement") meant that the easement was granted not only for railway uses, but for literally any use the grantee desired. Thus, even though the rail uses had been abandoned, the city could continue to use it for a public park, without paying compensation because the reversionary easement owner didn't have "property" that was taken.
The property owner sought en banc review in the Federal Circuit, and that's the stage at which we filed our amici brief, which argued that New York law doesn't recognize a "general easement" which would allow the grantee to do anything it likes with the easement. If the Federal Circuit's guess about New York property law was correct (which it wasn't) then the grant really wasn't for an easement, but rather for the fee simple absolute. If you can do literally anything you like with property someone lets you use, without conditions, then it really isn't an easement.
After the court declined to hear the case en banc, the owner filed this cert petition which argues that there's a lower court split on what a federal court should do when confronted with an unsettled question of state law. The Federal Circuit here just took its best guess about what New York law allowed (a guess that, in our view, and in the view of the others who filed amici briefs is wrong), while other circuits require the court to certify the unsettled question of state law to the appropriate state court.
We think the latter approach is the better one, especially in matters of property law, which for the most part are supremely local, more within the knowledge and expertise of state court judges. The CFC and the Federal Circuit -- nationwide courts -- are even further removed than the district and other federal circuit courts from the nuances of local property law, and the judges of the former courts may have no familiarity whatsoever with the state law they purport to apply.
Here's the Question Presented:
When the Court of Appeals confronts a novel or unsettled question of state law, should the court certify the question to the state’s highest court or should the federal court make an Erie-guess about how the state’s highest court might decide the issue?
The property owners are represented by our colleagues at Federal Takings.
We'll post our amici brief next week after we file it.