October 4th, 2013 — By — In News & Events

Supreme Court Grants Cert in Brandt v. US, Rails to Trails Takings Case

Earlier this week the U.S. Supreme Court granted certiorari in Brandt Revocable Trust v. United States, (12-1173).  As our colleague, Robert Thomas, explains this was a “not-entirely-unexpected move” by the Court due to the fact that the Tenth Circuit acknowledged that its ruling created a “circuit split” and the Solicitor General did not oppose the landowner’s petition.  Rather, in it’s “Brief Not-In-Opposition” the SG argued that the Court should grant review and resolve the issue in favor of the government.

The dispute in this case revolves around whether the federal government retained an “implied reversionary interest” in railroad rights of way granted under an 1875 Congressional Act or whether the grants were subject only to a railroad easement.  In the Brandt case, the railway abandoned use of the easement.  Then the federal government instituted a quiet title action in federal court claiming it owned the land beneath the right of way rather than the property owner who holds title to the larger parcel surrounding the former railroad easement.   The Tenth Circuit, contrary to every other court that has considered the issue, held that that the United States, rather than the private landowner, acquired ownership of the land by an “implied reversionary interest” when the railroad was abandoned.

OCA filed an amicus brief in this case supporting the petitioner. The 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.

More to come as this case heads to the Court for argument.

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