OCA Files Amicus Brief in "Rails to Trails" Takings Case Seeking Review by the U.S. Supreme Court
April 25, 2013 -- The Owners' Counsel of America (OCA) has filed an amicus brief in support of the landowner in Brandt v. United States (12-1173) urging the United States Supreme Court to review the decision of the Tenth Circuit Court of Appeal and resolve a "circuit split" concerning whether the United States has a reversionary interest in railroad rights of way crossing privately-owned lands under a 1875 Congressional Act.
The Tenth Circuit acknowledged a "circuit split" in its opinion in United States v. Brandt, 2012 WL 3935613 (C.A.10 (Wyo.), noting a divergence from decisions in the Seventh Circuit, Federal Circuit and Court of Federal Claims which have held that the United States did not have a reversionary interest in railroad right of way when the underlying land had been conveyed to private owners. The Tenth Circuit's decision held that the United States retained an implied reversionary interest in railroad right of way and that the Federal Government, rather than the private landowner owning the adjacent patented lands, acquired ownership of the land when the railroad abandoned the easement.
"If the Tenth Circuit's decision is allowed to stand, similarly-situated landowners across the country will be subjected to varying federal rules, based solely on where their land is located." said Robert H. Thomas. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii attorney-member of OCA, prepared the brief.
In 1875, Congress passed the General Railroad Right-of-Way Act of 1875 ("1875 Act"), 43 U.S.C. §§ 934-939. The 1875 Act allowed Congress to grant railroads right of way access through publicly owned lands. Congress later passed the Act of March 8, 1922, 43 U.S.C. § 912, which permitted the conveyance of title to the land under these railroad rights of way to homesteaders whom the adjacent property had been granted by land patent. The Act of March 8 provided that upon abandonment by the railroad, ownership of the right of way transferred to the private landowner. In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), the Supreme Court clarified that the rights of way granted under the 1875 Act were easements for the limited purpose of railroad use. In Great Northern and subsequent cases, however, the Court failed to provide a specific definition of the term "easement" in the context of the 1875 Act opening the door to the current litigation.
The Brandt family acquired 83 acres in Albany County, Wyoming by land patent from the U.S. Forest Service in 1976. The land was bisected by an 1875 Act right of way, later abandoned by the railroad in 2003. In 2005 under the National Trails System Act, 16 U.S.C. § 1241, the Forest Service issued a notice of intent to convert the abandoned railway crossing Brandt's and neighboring properties into a national trail. The United States then sought to acquire ownership of the railway easement by filing a complaint for declaratory judgment of abandonment and quiet title to the right-of-way (D.Wyo., No. 06cv184) on July 14, 2006. The Government has asserted that it owns the land beneath the abandoned railroad easement crossing Brandt's land. Brandt, through his attorneys at Mountain States Legal Foundation, has fought against that argument.
"In Brandt, it appears that the Government instituted a quiet title action as part of a new strategy to wipe out an entire class of rails-to-trails cases by securing a ruling that owners of land subject to the 1875 Act rights of way do not actually own the property under the right of way and, therefore, do not have a claim," said Thomas.
"Over the last decade, the Government has been unsuccessful in a number of theories argued in rails-to-trails takings cases in the Federal Circuit and Court of Federal Claims," explained Mark M. Murakami, Thomas's partner at Damon Key Leong Kupchak Hastert and co-author of the brief. "Perhaps, the U.S. decided to switch tracks in Brandt in hopes of finally prevailing."
OCA's brief contends that if the Government's strategy to redefine the property rights of landowners owning land subject to the 1875 Act is successful, the Government will eliminate an entire class of takings claims without justification. The brief further argues that the Tenth Circuit's conclusion that the term "right of way" as used in the 1875 Act signified the conveyance of a fee interest to the railroads with an implied right of reversion to the United States not only conflicts with the Supreme Court's ruling in Great Northern, but also strays greatly from the common law meaning of the term. For the U.S. to advocate a departure from the common law understanding of "right of way" with regard to the 1875 Act, it must demonstrate that Congress intended to change the common law meaning. Yet, the legislative history surrounding the enactment of the 1875 Act suggests Congress had no such intent.
"The high court's review is extremely important in this case, as it may affect thousands of property owners nationwide," said Bethany C.K. Ace, who joined Thomas and Murakami on the brief. "If the Federal Government is allowed to redefine the common law meaning of right of way in Brandt without impunity, it will no longer be liable to pay just compensation to those landowners."
Brigham-Kanner Property Rights Conference Celebrates A Decade of Success in Promoting Exchange Between Legal Scholars and Members of the Bar
April 22, 2013 -- The 2013 Brigham-Kanner Conference will take place October 17-18 at William & Mary School of Law in Williamsburg, Virginia. The 2013 Conference marks ten years that members of the bench, bar and academia have come together to explore recent developments in takings and property law and discuss the importance property rights plays in American society.
William & Mary recently announced that Columbia Law School Professor Thomas W. Merrill will receive the 2013 Brigham-Kanner Property Rights Prize. Professor Merrill is among the nation's leading scholars of property, administrative, and environmental law, and is the Charles Evans Hughes Professor at Columbia Law School. His books include Property: Takings (with David A. Dana) (Foundation Press, 2002), Property: Principles and Policies (2d ed., with Henry E. Smith) (Foundation Press, 2012), and The Oxford Introductions to U.S. Law (with Henry E. Smith) (Oxford University Press, 2010). His many articles have appeared in publications such as Harvard Law Review, New York University Law Review, University of Pennsylvania Law Review, and Yale Law Journal. Merrill holds a B.A., with honors in history, from Grinnell College, and a B.A., with first-class honors in philosophy, politics, and economics, from Oxford University, where he was a Rhodes Scholar.
After earning his J.D. at the University of Chicago, he clerked for Judge David L. Bazelon of the U.S. Court of Appeals for the D.C. Circuit and then for U.S. Supreme Court Justice Harry A. Blackmun. After clerking, Merrill practiced at Sidley, Austin, Brown & Wood in Chicago and then served as deputy solicitor general in the Department of Justice, a role in which he supervised Supreme Court litigation. Merrill was the John Paul Stevens Professor of Law at Northwestern University before joining the Columbia University faculty in 2003.
The Conference schedule and speaker's have yet to be finalized, however, the anticipated topics for discussion include:
- The Impact of a Leading Property Scholar: Defining the Essence of Property;
- Promoting Government Forbearance;
- The Implications of the Court's Recent Takings Cases; and
- Property Rights in Times of Transition.
The Brigham-Kanner Property Rights Conference is sponsored by the William & Mary Property Rights Project which seeks to promote the exchange of ideas between scholars and members of the property rights bar through lectures, the annual Brigham-Kanner conference and the Brigham-Kanner Conference Journal. The Conference, Prize and Journal are named in recognition of the lifetime contributions of property rights lawyers and OCA Members Toby Prince Brigham and Gideon Kanner. The Brigham-Kanner Prize has been presented annually since 2004 to an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights.
Virginia OCA Member, Joseph T. Waldo, Conference Co-Chair and a 1978 graduate of William and Mary School of Law, said the annual conference provides a vital and unique forum in which members of the practicing bar and members of the academy can meet and exchange viewpoints in a constructive environment. "The conference's upcoming tenth year anniversary gives us cause to celebrate past advancements while continuing to focus on how the security of property rights is changing our world," he said.
More details about the conference schedule and speakers will be updated here as it becomes available. To attend the conference and/or awards ceremony, contact the William & Mary Property Rights Project at lsdevl@wm.edu or call (757) 221-3796.
OCA Joins Coalition of Property Rights Advocates as Amicus in Support of Property Owner Seeking Supreme Court Review in Kelo-like Eminent Domain Case
January 7, 2013 -- A coalition of property rights advocates including the Owners' Counsel of America, National Federation of Independent Business Small Business Legal Center, CATO Instiutute, and noted law professors James Ely, David Callies, Todd Zywicki, Randy Barnett, Eric Claeys, and D. Benjamin Barros, has filed an amicus curiae brief in support of the Petition for Certiorari filed by the Pacific Legal Foundation in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).
The brief, authored by George Mason law professor, Ilya Somin, argues:
This case presents an opportunity for this Court to clarify the definition of a "pretextual taking" under the Public Use Clause of the Fifth Amendment. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court ruled that "economic development" is a public use justifying the use of eminent domain. But the Court also emphasized that government may not "take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." ... Unfortunately, Kelo provided only limited guidance on what counts as a pretextual taking.
This case arises out of the U.S. Territory of Guam. Mr. Ilagan owned an apartment complex in Agana, Guam. Mr. Ungacta, who was then the Mayor of Agana, owned a neighboring residential lot. In 1981, the Ungacta property did not have access to a road. Ungacta appraised a part of the Ilagan property that had access, and which was used for parking for Ilagan's tenants. Soon after, the Guam government condemned the appraised area, paying for it with compensation supplied by Ungacta, and transferred it to Ungacta.
Guam asserted that the taking was for "economic development" occurring under the "Agana Plan," a post-WWII redevelopment plan enacted to reconfigure irregular lot lines, but which had not been used for seven years prior to the Ilagan taking. No other lots were taken under purported authority of the Plan at the time of the Ilagan taking. In the 30 years since, the Plan has never been used to take any property.
Although the Guam trial court held the taking unconstitutional, the Guam Supreme Court reversed. At the urging of Ungacta (the Guam government did not appeal), that court applied a standard of "judicial deference" under Kelo, and held the taking served a valid public purpose.
More about the Ilagan case and the amici brief is available at inversecondemnation.com, The Volokh Conspiracy and the CATO Institute.
