Petition for Writ of Certiorari — Flying Crown Subdivision Addition No. 1 and Addition No. 2 Property Owners Association, Petitioner v. Alaska Railroad Corporation

Supreme Court briefMar 18, 2024

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No. ____________

In The

Supreme Court of the United States

____________________

FLYING CROWN SUBDIVISION ADDITION NO. 1

AND ADDITION NO. 2 PROPERTY OWNERS’

ASSOCIATION, a non-profit,

Petitioner,

ALASKA RAILROAD CORPORATION,

Respondent.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, Virgnia 22201

PGilliard@pacificlegal.org

JEFFREY W. MCCOY*

*Counsel of Record

DAMIEN M. SCHIFF

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

JMcCoy@pacificlegal.org

DSchiff@pacificlegal.org

EVA R. GARDNER

Ashburn & Mason, P.C.

1227 West 9th Avenue, Suite 200

Anchorage, Alaska 99501

eva@anchorlaw.com

Counsel for Petitioner

QUESTION PRESENTED

When interpreting railroad rights-of-way granted

by federal statutes, courts look to the condition of the

country when the statutes were enacted, as well as the

declared purpose of the rights-of-way, and must read

all of their parts together. Leo Sheep Co. v. United

States, 440 U.S. 668, 682 (1979). To that end, this

Court has repeatedly held—most recently in Marvin

M. Brandt Revocable Tr. v. United States, 572 U.S. 93,

110 (2014)—that, because Congress made a “sharp

change” in national policy in 1871 which ended

generous land grants to railroads, a reference in a

post-1871 statute to a railroad right-of-way must be

construed to mean a “simple easement.” Such an

easement gave a railroad a nonpossessory right to use

another’s land for railroad purposes and no more.

The Ninth Circuit here, however, concluded that

a right-of-way reserved in 1950 under the 1914 Alaska

Railroad Act reserved an “exclusive-use” easement as

defined in the 1983 statute transferring the federal

Alaska Railroad to the State of Alaska, 45 U.S.C.

§§ 1201–14. This vested Respondent Alaska Railroad

Corporation (ARRC) with a possessory interest in

Petitioner Flying Crown’s property, cloaking it with

the rights of fee simple ownership—including the

right to exclude Flying Crown and other property

owners across Alaska from areas ARRC does not use.

The question presented is:

Whether railroad rights-of-way reserved under

the 1914 Alaska Railroad Act are nonpossessory

“simple easements” like other railroad rights-of-way

conveyed after 1871 or “exclusive-use” easements as

defined by a 1983 statute.

LIST OF ALL PARTIES

Petitioner (defendant-appellant below) is Flying

Crown Subdivision Addition No. 1 and Addition No. 2

Property Owners’ Association.

Respondent (plaintiff-appellee below) is the

Alaska Railroad Corporation.

Respondent Municipality of Anchorage Department of Law was intervenor-defendant at the District

Court.

CORPORATE DISCLOSURE STATEMENT

Petitioner Flying Crown Subdivision Addition

No. 1 and Addition No. 2 Property Owners’

Association is a non-profit and hereby states that it is

neither owned by a parent corporation, nor is there a

publicly held corporation owning ten percent (10%) or

more of its shares.

RELATED PROCEEDINGS

The proceedings identified below are directly

related to the above-captioned case in this Court:

Alaska Railroad Corporation v. Flying Crown

Subdivision Addition No. 1 and Addition No. 2.

Property Owners Association, No. 22-35573 (9th Cir.)

(opinion issued September 18, 2023, withdrawn and

superseded on Denial of Rehearing by an order and

opinion issued on December 29, 2023).

Alaska Railroad Corporation v. Flying Crown

Subdivision Addition No. 1 And Addition No. 2.

Property Owners Association, No. 3:20-cv-00232-JMK

(D. Alaska), judgment entered April 5, 2022,

reconsideration denied June 30, 2022.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

LIST OF ALL PARTIES ............................................. ii

CORPORATE DISCLOSURE STATEMENT ............ ii

RELATED PROCEEDINGS....................................... ii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS AT ISSUE.................... 1

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE .................................... 5

Factual and Legal Background ....................... 5

A. The Alaska Railroad ....................................... 5

B. The Sperstad Patent and Flying

Crown Subdivision .......................................... 6

C. ARTA and transfer of railroad

to the State of Alaska ..................................... 8

II.

Proceedings Below ........................................... 9

REASONS FOR GRANTING THE PETITION ....... 11

This case raises a question of exceptional

importance to the people of Alaska ............... 11

II.

The Ninth Circuit’s opinion conflicts

with relevant decisions of this Court ............ 15

A. The opinion conflicts with this Court’s

precedent on how to interpret statutes

granting railroad rights-of-way .................... 16

B. The opinion ignores this Court’s rule

that cases interpreting pre-1871

rights-of-way do not control when

interpreting post-1871 rights-of-way ........... 22

C. The opinion conflicts with this

Court’s precedent on the meaning

of “right-of-way” ............................................ 23

III. The Ninth Circuit’s opinion conflicts with

other lower courts’ decisions on the scope

of railroad rights-of-way ................................ 26

CONCLUSION.......................................................... 30

APPENDIX

Opinion and Order (denying petition for panel

rehearing and rehearing en banc),

U.S. Court of Appeals for the Ninth Circuit,

filed December 29, 2023 ...................................... 1a

Opinion, U.S. Court of Appeals for the

Ninth Circuit, filed September 18, 2023 .......... 22a

Order re: Judge Bade is replacement for Judge

Murguia, U.S. Court of Appeals for the

Ninth Circuit, filed November 21, 2023 ........... 43a

Order Denying Motion to Reconsider,

U.S. District Court for the District

of Alaska, filed June 30, 2022 ........................... 44a

Judgment in a Civil Action, U.S. District

Court for the District of Alaska,

filed April 5, 2022 .............................................. 51a

Order on Cross Motions for Summary Judgment,

U.S. District Court for the District of Alaska,

filed March 10, 2022 .......................................... 53a

An Act To authorize the President of the

United States to locate, construct, and

operate railroads in the Territory of Alaska,

and for other purposes, 38 Stat. 305

(March 12, 1914) ................................................ 87a

Alaska Railroad Transfer Act,

45 U.S.C. §§ 1201–1214..................................... 93a

Grant Deed of land from United States to

Thomas W. Sperstad, February 15, 1950 ....... 138a

TABLE OF AUTHORITIES

Cases

Amoco Prod. Co. v. Vill. of Gambell, Alaska,

480 U.S. 531 (1987) ............................................. 11

Barahona v. Union Pac. R.R. Co.,

881 F.3d 1122 (9th Cir. 2018) ....................... 28–29

Cheshire Hunt, Inc. v. United States,

158 Fed. Cl. 101 (2022)........................................ 27

City of Lincoln v. Surface Transp. Bd.,

414 F.3d 858 (8th Cir. 2005) ............................... 27

Coeur Alaska, Inc. v. Se. Alaska

Conservation Council,

557 U.S. 261 (2009) ............................................. 11

Denver & R.G. Ry. Co. v. Alling,

99 U.S. 463 (1878) ........................................... 4, 15

Great N. Ry. Co. v. United States,

315 U.S. 262 (1942) ..................4, 15–17, 19–22, 24

Home on the Range v. AT&T Corp.,

386 F. Supp. 2d 999 (S.D. Ind. 2005) .................. 28

Idaho v. Oregon Short Line R.R. Co.,

617 F. Supp. 207 (D. Idaho 1985) ....................... 16

Jie Ao & Xin Zhou—Petition for Declaratory

Order, No. FD 35539, 2012 WL 2047726

(Surface Transp. Bd. June 4, 2012) .................... 27

Kansas City S. Ry. Co. v.

Arkansas Louisiana Gas Co.,

476 F.2d 829 (10th Cir. 1973) ............................. 28

Leo Sheep Co. v. United States,

440 U.S. 668 (1979) ................................... 4, 16, 25

vii

LKL Associates, Inc. v. Union Pacific Railroad Co.,

17 F.4th 1287 (10th Cir. 2021) ............................ 29

Marvin M. Brandt Revocable Tr. v. United States,

572 U.S. 93 (2014) ..........................4, 15–19, 21–25

Midland Valley R.R. Co. v. Sutter,

28 F.2d 163 (8th Cir. 1928) ................................. 28

Norfolk S. Ry. Co. v. Smith,

611 S.E.2d 427 (N.C. Ct. App. 2005)............. 27–28

Oceanview Homeowners Ass’n, Inc. v.

Quadrant Constr. & Eng’g,

680 P.2d 793 (Alaska 1984) ............................... 3, 7

Smith v. City of Jackson,

544 U.S. 228 (2005) ............................................. 18

Smith v. Townsend,

148 U.S. 490 (1893) ......................................... 4, 15

Sturgeon v. Frost,

577 U.S. 424 (2016) ............................................. 11

Sturgeon v. Frost,

587 U.S. 28 (2019) ............................................... 11

Territory of New Mexico v.

U.S. Tr. Co. of New York,

172 U.S. 171 (1898) ............................................. 22

U.S. Forest Serv. v. Cowpasture River Pres. Ass’n,

140 S. Ct. 1837 (2020) ................................... 23–24

United States v. Denver & Rio Grande Ry. Co.,

150 U.S. 1 (1893) ..................................... 18–19, 25

Veach v. Culp,

599 P.2d 526 (Wash. 1979) ............................ 26–27

viii

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

General Railroad Right-of-Way Act of 1875,

18 Stat. 482,

43 U.S.C. §§ 934–939........................................... 17

43 U.S.C. § 937 .......................................................... 18

43 U.S.C. § 975, et seq. ................................................ 2

Alaska Railroad Transfer Act,

45 U.S.C. §§ 1201–1214................................. 1–2, 8

45 U.S.C. § 1202(6) ......................................... 9, 12, 21

48 U.S.C. § 301, et seq. ................................................ 2

1914 Alaska Railroad Act,

38 Stat. 305 (March 12, 1914) ......1–2, 6, 16, 18, 20

Pub. L. No. 97-468 (Jan. 14, 1983) ............................. 2

Alaska Stat. § 42.40.010 ............................................. 2

Alaska Stat. § 42.40.350(a)......................................... 8

Alaska Stat. § 42.40.410 ............................................. 8

Regulations

43 C.F.R. § 65.8 (1949)........................................ 12, 20

43 C.F.R. § 74.2 (1949).................................... 2, 12, 20

Rules

Sup. Ct. R. 10(c) ........................................................ 11

Sup. Ct. R. 13.3 ........................................................... 1

Other Authorities

Alaska Railroad Fact Sheet,

https://www.alaskarailroad.com/sites/d

efault/files/akrr_pdfs/Fact_Sheet.pdf

(last visited Mar. 12, 2024) ................................. 11

ARRC, ARRC Historic Timeline

(updated May 2023),

www.alaskarailroad.com/sites/defaul

t/files/Communications/Alaska_Railr

oad_Historic_Timeline.pdf .................................... 7

Bouvier, John,

3 Bouvier’s Law Dictionary and

Concise Encyclopedia (1914) ............................... 24

Bruce, J. & Ely, J., Law of Easements

and Licenses in Land § 1:1 (2015) ...................... 23

Bruce, Jon W., Ely, Jr., James W. &

Brading, Edward T.,

The Law of Easements & Licenses

in Land § 11:6 (2024)........................................... 13

Cong. Globe, 42d Cong., 2d Sess. (1872) ............ 17, 19

Gates, Paul W., History of Public Land

Law Development (1968) ..................................... 17

Kelly, Devin, Alaska Railroad drops contentious

policy around private property near tracks,

Anchorage Daily News (Nov. 14, 2017),

https://www.adn.com/alaskanews/2017/11/14/alaska-railroad-dropscontentious-policy-around-private-propertynear-tracks/? .......................................................... 3

Kopp, Chuck, Getting the Alaska

Railroad back on track, Anchorage

Daily News (Nov. 19, 2021),

https://www.adn.com/opinions/202

1/11/19/getting-the-alaskarailroad-back-on-track/ ........................................ 12

Renfro’s Lakeside Retreat, map,

https://www.renfroslakesideretreat.com/

maps.html (last visited Mar. 12, 2024)............... 12

Restatement (First) of Property § 450 (1944) .......... 24

Restatement (Third) of Property

(Servitudes) § 4.9 (2024)................................ 15, 26

PETITION FOR WRIT OF CERTIORARI

Petitioner Flying Crown Subdivision Addition No.

1 and Addition No. 2 Property Owners’ Association

respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Ninth Circuit.

OPINIONS BELOW

The panel opinion and order denying Petitioner

Flying Crown’s petition for panel rehearing or

rehearing en banc is published at 89 F.4th 792 and

reproduced in Petitioners’ Appendix (App.) 1a–21a.

The District Court’s decision denying Flying Crown’s

motion to reconsider is included at App. 44a–50a. The

District Court’s opinion granting ARRC’s motion for

summary judgment and denying Flying Crown’s

motion for summary judgment is included at 53a–86a.

JURISDICTION

The Ninth Circuit denied Petitioner’s petition for

panel rehearing or rehearing en banc on December 29,

2023. Jurisdiction is conferred under 28 U.S.C.

§ 1254(1). This petition is timely under Supreme

Court Rule 13.3.

STATUTORY PROVISIONS AT ISSUE

The text of the 1914 Alaska Railroad Act, 38 Stat.

305 (March 12, 1914), and the Alaska Railroad

Transfer Act, 45 U.S.C. §§ 1201–1214, are set out in

the petition appendix. App. 87a–137a.

INTRODUCTION

In the early 20th Century, Congress sought to

settle the Alaskan frontier. To that end, Congress

enacted the 1914 Alaska Railroad Act, which

authorized the President to locate and operate a

railroad of up to 1,000 miles to connect Alaska’s

Pacific coast with its interior. Act of March 12, 1914,

38 Stat. 305 (formerly codified at 43 U.S.C. § 975, et

seq. and, prior to statehood, at 48 U.S.C. § 301, et seq.)

(“1914 Act”), App. 87a–92a, repealed Jan. 14, 1983, by

ARTA, Pub. L. No. 97-468, Title VI, § 615(a)(1). The

statute authorized the President to acquire rights-ofway for the railroad and, for federally owned land

subsequently patented to homesteaders, directed the

President to reserve a right-of-way for the railroad.

Act of March 12, 1914, 38 Stat. at 306 (App. 88a).

Throughout the 1900s prior to Alaska statehood,

the federal government issued hundreds of land

patents to Alaska settlers. See 43 C.F.R. § 74.2 (1949).

Many of these homesteads were taken subject to the

railroad’s right-of-way and often the newly patented

land was bisected by the railroad right-of way. Id.

In the 1980s Congress passed a statute

transferring the Alaska Railroad to the State of

Alaska, 45 U.S.C. §§ 1201–1214, and the State then

put Respondent ARRC in charge of owning and

operating the railroad, see Alaska Stat. § 42.40.010.

Eventually, ARRC claimed that it had exclusive use

and control over the entire width of its easement area,

whether or not that portion of the land was being used

for railroad purposes. See Complaint, District

Court case no. 3:20-cv-00232, docket no. 1 (filed

September 21, 2020).

In 2013, ARRC used its interpretation of the scope

of the easement to charge fees to homeowners and

business owners for the privilege of using their

property. Excerpts of Record (ER) at 174, Ninth

Circuit case no. 22-35573, docket no. 12 (filed

January 17, 2023); id. at 58–171. In 2017, after

immense public pressure, ARRC rescinded the fees for

some, but not all, property and business owners.

Devin Kelly, Alaska Railroad drops contentious policy

around private property near tracks, Anchorage Daily

News (Nov. 14, 2017).1 Despite revoking some of the

fees, ARRC still maintains that it has exclusive

control over the entire width of the easement area and

has the authority to charge fees to the servient estate

owners if it wishes. See id; ER at 58–171.

Petitioner Flying Crown is one group of

homeowners affected by ARRC’s assertion that it has

exclusive control over the entire width of the easement

area. Flying Crown’s homes are next to an airstrip

that has been used by the property owners since the

1950s. Oceanview Homeowners Ass’n, Inc. v.

Quadrant Constr. & Eng’g, 680 P.2d 793, 795 (Alaska

1984). In the more than half-century history of the

airstrip, there have been no issues to the railroad

resulting from the use of the airstrip. ER at 174; App.

5a.

A small portion of ARRC’s easement overlaps with

the airstrip. ER at 173; App. 5a. Thus, according to

ARRC, the homeowners can only use the airstrip at

ARRC’s discretion. Recognizing that ARRC’s position

places a cloud on the homeowners’ title—and that

their continued use of the airstrip could be in

jeopardy—the homeowners in 2019 sent ARRC a

letter requesting that the corporation stop claiming

exclusive use of the entire easement area. App. 5a–6a.

In response, ARRC sued the homeowners, requesting

that the District Court quiet title and declare that

1 https://www.adn.com/alaska-news/2017/11/14/alaska-railroad-

drops-contentious-policy-around-private-property-near-tracks/?

ARRC owns an “exclusive-use” easement, as defined

by the 1982 Alaska Railroad Transfer Act—a statute

passed 32 years after Flying Crown’s predecessor-ininterest acquired the property at issue. See

Complaint, District Court case no. 3:20-cv-00232,

docket no. 1 (filed September 21, 2020).

The District Court granted summary judgment in

favor of ARRC, holding that ARCC has an “exclusiveuse” easement across Flying Crown’s property. App.

53a–86a. In a published opinion, the Ninth Circuit

affirmed. App. 1a–21a.

The Ninth Circuit’s opinion conflicts with this

Court’s precedents on how courts should interpret

statutes that grant or reserve railroad rights-of-way.

This Court has stated that, in interpreting the scope

of a railroad right-of-way, a court “must look to the

condition of the country when the acts were passed, as

well as to the purpose declared on their face, and read

all parts of them together.” Leo Sheep Co. v. United

States, 440 U.S. 668, 682 (1979) (quotations omitted).

To that end, this Court has repeatedly held that, after

1871, Congress adhered to a new policy towards

railroads, and hence statutes after that date should be

construed to grant railroads just “simple easements”

and nothing more. Marvin M. Brandt Revocable Tr. v.

United States, 572 U.S. 93, 110 (2014); Great N. Ry.

Co. v. United States, 315 U.S. 262, 279 (1942); Denver

& R.G. Ry. Co. v. Alling, 99 U.S. 463, 475 (1878);

Smith v. Townsend, 148 U.S. 490, 498 (1893). But in

holding that ARRC owns an “exclusive-use” easement,

the Ninth Circuit’s opinion grants ARRC more than a

simple easement.

The opinion also conflicts with decisions from

courts around the country interpreting the scope of

railroad rights-of-way. By holding that ARRC has an

“exclusive-use” easement—and that the corporation’s

use and control of the easement area do not have to

relate to a railroad purpose—the Ninth Circuit has

held that ARRC has a railroad right-of-way unlike any

other in the country.

This case is about more than Flying Crown. By

suing the homeowners here, ARRC has secured

exclusive control over property from Fairbanks to

Seward. Whether homeowners and business owners

across Alaska can reasonably use their property is at

ARRC’s sole discretion. Some property owners own

land bisected by the railroad, and now ARRC will

determine whether they have the privilege of using

their whole property. ARRC can continue charging

fees to businesses that also own easements on the

land, and—if ARRC wishes—can reimpose fees on

homeowners wanting to use their land even in a

manner that does not interfere with railroad

operations.

The Ninth Circuit has decided an important

federal question in a way that conflicts with relevant

decisions of this Court and other courts. The Petition

for Writ of Certiorari should be granted.

STATEMENT OF THE CASE

Factual and Legal Background.

A. The Alaska Railroad.

The Alaska Railroad Act of 1914 authorized the

President to locate, construct, and operate a federal

railroad in Alaska of up to 1,000 miles, to purchase or

otherwise acquire real and personal property,

including by eminent domain, and “to acquire rights

of way, terminal grounds, and all other rights”

necessary for the construction of the federal Alaska

Railroad. Act of March 12, 1914, 38 Stat. at 306 (App.

88a). The stated purpose of this federal railroad was

to connect Alaska’s Pacific coast with its interior, to

“aid in the development of the agricultural and

mineral or other resources of Alaska, and the

settlement of the public lands therein ….” 38 Stat. at

306 (App. 87a).

The 1914 Act also directed the federal government

to reserve a right-of-way for the Alaska Railroad in

land patents issued in Alaska after its enactment. Act

of March 12, 1914, 38 Stat. at 307 (App. 90a).

Specifically, the Act provided that the patents will

reserve “to the United States a right of way for the

construction of railroads, telegraph and telephone

lines to the extent of one hundred feet on either side

of the center line of any such road” and “twenty-five

feet on either side of the center line of any such

telegraph or telephone lines.” Id.

B. The Sperstad Patent and Flying Crown

Subdivision.

On February 15, 1950, the United States issued

federal land patent No. 1128320 to Thomas Sperstad

(“Sperstad Patent”), App. 138a, Flying Crown’s

predecessor-in-interest.

The

Sperstad

Patent

expressly “reserved to the United States a right of way

for the construction of railroads, telegraph and

telephone lines in accordance with the Act of

March 12, 1914 [(]38 Stat. 305).” App. 139a. At the

time the patent was issued, the Alaska Railroad’s

track already traversed the 120-acre Sperstad

Homestead from north to south.2

An airstrip was developed on the Sperstad

Homestead in the 1950s parallel to the railroad rightof-way. Oceanview Homeowners, Inc., 680 P.2d at 795.

A portion of the airstrip overlaps with the outer edges

of the right-of-way—dozens of yards away from the

railroad tracks. App. 5a; ER at 173. In 1965, John

Graham purchased what is now the Flying Crown

Subdivision, and when the subdivision was developed

the new homeowners continued to use the airstrip.

Oceanview Homeowners Ass’n, Inc., 680 P.2d at 795.

Flying Crown’s homeowners, many of whom are

pilots who purchased their homes because of this

airstrip access, continue to use the airstrip today. ER

at 173. And several of the homeowners have invested

time and money to construct dedicated airplane

hangars on their lots with the expectation that they

will continue to be able to access and use the airstrip.

Id.

Flying Crown has always maintained a good

relationship with the Alaska Railroad, under both

federal and state ownership. ER at 173. The Flying

Crown homeowners have always respected the need

for safe railroad operations and honored the rights of

the easement holder. ER at 173–74. For example, in

the early 1970s, Flying Crown erected a fence a safe

distance from and parallel to the tracks but within the

easement area, to inhibit casual pedestrian crossing.

ER at 173. Flying Crown still maintains the fence

ARRC, ARRC Historic Timeline at 5 (updated May 2023),

www.alaskarailroad.com/sites/default/files/Communications/Ala

ska_Railroad_Historic_Timeline.pdf.

today. Id. There have never been any instances when

the fence, the airstrip, Flying Crown, or its

homeowners have impeded railroad operations. ER at

174.

C. ARTA and transfer of railroad to the

State of Alaska.

In 1983, Congress enacted the Alaska Railroad

Transfer Act, 45 U.S.C. §§ 1201–1214, and authorized

the transfer of the federal Alaska Railroad to the State

of Alaska. The statute authorized the transfer of

nearly all of the federal property rights and interests

to Alaska’s new Alaska Railroad Corporation so that

the State could take over operation of the railroad.

Pursuant to ARTA, ARRC received all of the

described personal and real property interests that

were owned by the federal government at the time of

transfer, including the 1914 Act right-of-way reserved

in the Sperstad Patent. But critically, ARRC received

no more than what the federal government had

owned. Indeed, in 2018, the State of Alaska enacted

House Bill 119, which reiterated that, when the

federal government transferred the railroad right-ofway, it did not transfer, and the State did not receive,

any interest the federal government did not own at the

time

ARTA’s

enactment.

Alaska

Stat.

§ 42.40.350(a), as amended. The statute explicitly

prohibited ARRC from asserting an interest in the

right-of-way that was not federally owned at the time

of transfer, and from applying for or acquiring any

land or interest in land from the federal government

that was not federally owned at the time of transfer.

Alaska Stat. §§ 42.40.350(a), 42.40.410.

Despite House Bill 119, ARRC continues to assert

fee rights for lands underlying its rights-of-way as

part of its ratemaking process. An early 2021 draft

appraisal of ARRC’s lands reveals that ARRC directed

the appraiser to assume that it owned its right-of-way

in fee simple, and to value it accordingly. ER at 58–

171. This continues a years-long policy of ARRC

charging significant fees for use of any portion of its

rights-of-way, including those portions not necessary

for the operation of the railroad. For example, prior to

public outcry over the practice, ARRC charged Flying

Crown $4,500 per year to use the small portion of

property underlying the right-of-way. ER at 174.

Although that fee has been dropped under a current

agreement with Flying Crown, ARRC continues to

assert its right to deny anyone from using any portion

of the right-of-way, and charge access fees if it wishes.

II. Proceedings Below.

On September 21, 2020, ARRC filed this action,

seeking to quiet title to the right-of-way across Flying

Crown’s property, and requesting “a finding that

ARRC’s interest in that [right-of-way] includes the

entire interest previously held by the United States

federal government, and all rights contained within

the definition of an ‘exclusive use easement’ under 45

U.S.C. § 1202(6).” ER at 203. ARRC asserted

jurisdiction under 28 U.S.C. § 1331 because the case

turns on substantial questions of federal law.

Flying Crown filed its answer on November 12,

2020, and, eight days later, ARRC filed a motion for

summary judgment. See District Court Dkt. Nos. 11,

13. On December 3, 2020, ARRC moved to stay

discovery until resolution of its motion for summary

judgment. District Court Dkt. No. 16. Flying Crown

opposed the motion, but on March 12, 2021, the

District Court granted the motion and stayed

discovery pending resolution of the motion for

summary judgment. ER at 175.

On August 16, 2021, Flying Crown filed a crossmotion for summary judgment and an opposition to

ARRC’s motion for summary judgment. Following

briefing and hearings on the motions, the District

Court granted ARRC’s motion for summary judgment

and denied Flying Crown’s cross-motion on March 10,

2022. App. 53a–86a. The District Court concluded

that (1) the federal government reserved at least an

“exclusive-use” easement, as defined in the 1982

Alaska Railroad Transfer Act, when it issued the

Sperstad Patent in 1950, and (2) the entirety of the

federal government’s reserved interest was

transferred to ARRC pursuant to ARTA and perfected

via patent in 2006. App. 86a. The District Court

subsequently denied Flying Crown’s motion for

reconsideration. App. 44a–50a.

Flying Crown appealed and the Ninth Circuit held

oral argument on August 15, 2023. On September 18,

the Ninth Circuit affirmed the judgment of the

District Court. App. 22a–42a. After Flying Crown filed

a petition for panel rehearing or rehearing en banc,

Judge Murguia was disqualified or recused herself

from the case and was replaced by Judge Bade. App.

43a.

On December 29, 2023, the Ninth Circuit issued

an order withdrawing the September 18 opinion, filing

a new opinion reflecting Judge Bade’s concurrence

and affirming the judgment of the District Court, and

denying the petition for panel rehearing or rehearing

en banc. App. 1a–21a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit “has decided an important

federal question in a way that conflicts with relevant

decisions of this Court.” Sup. Ct. Rule 10(c). By

holding that ARRC holds an “exclusive-use” easement

in its right-of-way, it has prevented hundreds of

property owners and businesses from making

reasonable use of their property.

This Court has granted certiorari in other cases

where the Ninth Circuit issued a decision that

conflicts with this Court’s precedents in a way that

significantly affects Alaskans. See, e.g., Sturgeon v.

Frost, 587 U.S. 28 (2019); Sturgeon v. Frost, 577 U.S.

424 (2016); Coeur Alaska, Inc. v. Se. Alaska

Conservation Council, 557 U.S. 261 (2009); Amoco

Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531

(1987). The petition here should be granted for the

same reasons.

This case raises a question of exceptional

importance to the people of Alaska.

As noted above, the Ninth Circuit’s decision

affects more than Flying Crown. It restricts the ability

of residents and businesses across Alaska to

reasonably use their property. The Alaska Railroad

runs from Fairbanks to Seward, for approximately

650 miles.3 Now, ARRC can prevent property owners

across the state from using any of the surface estate

for 100 feet on each side of the railroad tracks—or

force the servient estate owners to pay fees—even if

3 Alaska Railroad Fact Sheet,

https://www.alaskarailroad.com/sites/default/files/akrr_pdfs/Fac

t_Sheet.pdf (last visited Mar. 12, 2024).

ARRC is not using, and does not need to use, that

portion of the surface estate. See Appellee’s

Answering Br. at 1, Ninth Cir. No. 22-35573 (filed

March 20, 2023).

Indeed, ARRC can cut off property owners from

using the entirety of their property. Many of the land

patents issued under the 1914 Alaska Railroad Act

were bisected by the railroad right-of-way. See 43

C.F.R. §§ 65.8, 74.2 (1949). And today, many

landowners and businesses still hold property where

the railroad tracks cross through the middle. See, e.g.,

Renfro’s Lakeside Retreat, map;4 Chuck Kopp,

Getting the Alaska Railroad back on track, Anchorage

Daily News (Nov. 19, 2021).5 Because of the panel’s

decision, whether these landowners can cross the

railroad tracks to access another portion of their

property is at the sole discretion of ARRC. App. 21a;

see also 45 U.S.C. § 1202(6) (App. 95a–96a).

Landowners that own property not bisected by the

railroad are also limited in the use of their property

even if only a small portion of the right-of-way that

the railroad is not using and does not need to use

touches their property. ARRC has exclusive use of the

200 feet of surface estate adjacent to the railroad

tracks and whether the property owners have the

privilege of being able to use their property is at the

sole discretion of ARRC.

Finally, ARRC can prevent other easement

holders—like utilities—from using the land these

https://www.renfroslakesideretreat.com/maps.html (last

visited Mar. 12, 2024).

5 https://www.adn.com/opinions/2021/11/19/getting-the-alaskarailroad-back-on-track/.

easement holders have a right to use. In the

proceedings below, the Matanuska Telephone

Association, ENSTAR Natural Gas Company, and the

Alaska Pipeline Company explained how ARRC’s

interpretation of its right-of-way interfered with

utility and pipeline easements held by the three

companies and how ARRC had used its “exclusiveuse” easement to force the companies to pay fees in

order to operate. District Court Dkt. Nos. 88, 97; 9th

Cir. Dkt No. 16.

The Ninth Circuit’s attempt to minimize the

consequences of its decision is unconvincing. See App.

10a. Because ARRC has currently granted Flying

Crown a zero-fee license to use the surface estate, the

opinion reflects a belief that there will be little

practical consequences for Flying Crown. Id. But “a

license is generally revocable at the will of the

licensor,” Jon W. Bruce, James W. Ely, Jr., &

Edward T. Brading, The Law of Easements & Licenses

in Land § 11:6 (2024), meaning that there is no

guarantee that Flying Crown will be able to use its

property in the future.

While ARRC’s counsel stated at oral argument

before the Ninth Circuit that ARRC has no plans to

restrict Flying Crown’s use, App. 10a, at best that

statement reflects the view of the current ARRC

Board. Nothing would prevent a future board from

deciding to restrict Flying Crown’s use of its property

or charge Flying Crown for the privilege of reasonably

using the land it owns. The Flying Crown homeowners

should not have to rely on an offhand comment by an

attorney at oral argument to be secure in their titles.

And the homeowners have good reason to be

skeptical that ARRC will not charge fees for the

reasonable use of their own property. In the last few

years, ARRC attempted to raise the rates it charges

landowners to use their own land, before eventually

rolling back the rate hike. See ER at 174; Kelly, supra.

Because of ARRC’s inconsistency regarding the use of

its right-of-way, Flying Crown sought clarity of title

by sending a letter requesting that ARRC not claim an

“exclusive-use” easement over Flying Crown’s

property. See Complaint, District Ct. Dkt. No. 1 ¶ 22.

In response, ARRC sued Flying Crown. Id. ARRC’s

actions over the past decade show that there are no

assurances that ARRC will allow Flying Crown to use

its property in the future.

Moreover, the panel did not address the

consequences for other Alaska property owners and

businesses. While ARRC is not currently restricting

Flying Crown from using its property or charging the

homeowners a fee, that is not true in other parts of

Alaska. Brief of Amicus Curiae Matanuska Telecom

Association (Matanuska Br.), 9th Cir. Dkt No. 16, at

13. Indeed, while ARRC may at present have “no plans

to reinstate the permitting fee” on Flying Crown, App.

10a, it recently sought an appraisal to estimate how

much it can charge others to use portions of the

easement. ER at 58–171. And because ARRC has

currently backed off from raising fees on residential

properties, it has instead raised permitting fees on

utility companies that must use a portion of the rightof-way to provide services to Alaskans. Matanuska Br.

at 4, 13.

ARRC does not need exclusive control of 200 feet

of surface estate—and the ability to charge everyone

else a fee—to operate its railroad. It is axiomatic that

a servient estate cannot unreasonably interfere with

the use of an easement. See Restatement (Third) of

Property (Servitudes) § 4.9 (2024). And, indeed, there

has never been an issue with a servient estate

unreasonably interfering with ARRC’s operations.

App. 5a. But the panel’s decision goes beyond allowing

ARRC to make reasonable requests to ensure that it

can operate its railroad; it gives ARRC unilateral

control over the servient estates.

In short, the record in this case contains no

evidence of any operational railroad need for an

“exclusive-use” easement; what the record does reveal

is ARRC’s desire to secure an “exclusive-use”

easement for revenue generation, ER at 58–171; ER

at 174; Matanuska Br. at 4, 13. The panel opinion

gives ARRC the ability to demand fees from servient

estates and from anyone else who may have a right or

need to use ARRC’s right-of-way The practical

consequences of that decision warrant its review by

this Court.

II. The Ninth Circuit’s opinion conflicts with

relevant decisions of this Court.

This Court has repeatedly held that railroad

rights-of-way established by Congress after 1871 are

simple easements. Brandt, 572 U.S. at 110; Great N.

Ry. Co., 315 U.S. at 279; Denver & R.G. Ry. Co., 99

U.S. at 475; Smith v. Townsend, 148 U.S. at 498. And

“[t]he essential features of easements … are well

settled as a matter of property law.” Brandt, 572 U.S.

at 104–05. “An easement is a nonpossessory right to

enter and use land in the possession of another and

obligates the possessor not to interfere with the uses

authorized by the easement.” Id. (quotations omitted).

An easement “merely gives the grantee the right to

enter and use the grantor’s land for a certain purpose,

but does not give the grantee any possessory interest

in the land[.]” Id. at 105 n.4. In short, “a simple

easement carries with it no right to exclusive use and

occupancy of the land.” Idaho v. Oregon Short Line

R.R. Co., 617 F. Supp. 207, 212 (D. Idaho 1985).

The 1914 Act is no different from other railroad

acts passed by Congress after 1871. The right-of-way

described by the 1914 Act is an easement, and in

reserving a right-of-way in the Sperstad Patent, the

federal government did not reserve a possessory

interest in the property now owned by Flying Crown.

In holding otherwise, the Ninth Circuit issued an

opinion that conflicts with the relevant decisions of

this Court.

A. The opinion conflicts with this Court’s

precedent on how to interpret statutes

granting railroad rights-of-way.

This Court has instructed that a railroad statute

should “receive such a construction as will carry out

the intent of Congress[.]” Leo Sheep Co., 440 U.S. at

682 (quotations omitted). Congress passed the 1914

Act to aid in the settlement of Alaska’s interior. Act of

March 12, 1914, 38 Stat. at 306 (App. 87a). As with

previous railroad acts, Congress intended for the

Alaska Railroad to assist in developing a newly

acquired portion of the country. See Brandt, 572 U.S.

at 95 (“In the mid-19th century, Congress began

granting private railroad companies rights of way

over public lands to encourage the settlement and

development of the West.”).

Prior to 1871, Congress achieved its development

and settlement goals through a “lavish policy of grants

from the public domain” to railroad companies. Great

N. Ry. Co., 315 U.S. at 273 n.6. Congress passed

numerous statutes that granted railroad companies

rights-of-way through the public land along with

outright grants of land in fee along those rights-ofway. Brandt, 572 U.S. at 96–97 (citing Paul W. Gates,

History of Public Land Law Development 362–68

(1968)). Under these pre-1871 acts, “the rights of way

conveyed in such land-grant acts [were] held to be

limited fees.” Great N. Ry. Co., 315 U.S. at 273 n.6.

But there was a “sharp change in Congressional

policy with respect to railroad grants after 1871 ….”

Great N. Ry. Co., 315 U.S. at 275. In the 1860s, the

public began to resent these generous land grants to

railroads and “[b]y the 1870s, legislators across the

political spectrum had embraced a policy of reserving

public lands for settlers rather than granting them to

railroads.” Brandt, 572 U.S. at 97.

After 1871, Congress stopped awarding land

grants to the railroads and instead conveyed to them

“the right-of-way” through federal lands. Id. at 97–98.

As an 1872 House resolution explained, “the policy of

granting subsidies in public lands to railroads and

other corporations” was discontinued because “every

consideration of public policy and equal justice to the

whole people requires that the public lands should be

held for the purpose of securing homesteads to actual

settlers ….” Cong. Globe, 42d Cong., 2d Sess., 1585

(1872).

Congress then passed the General Railroad Rightof-Way Act of 1875, 18 Stat. 482, 43 U.S.C. §§ 934–

939, which removed the need for Congress to grant

individual rights-of-way to railroads and further

solidified the change in national policy towards

settlement. Brandt, 572 U.S. at 98. With the 1875 Act,

Congress intended to “promote the building of

railroads through the immense public domain

remaining unsettled and undeveloped at the time of

its passage.” United States v. Denver & Rio Grande

Ry. Co., 150 U.S. 1, 8 (1893). Unlike the pre-1871

railroad acts, the 1875 Act was “intended to promote

the interests of the government in opening to

settlement and in enhancing the value of those public

lands through or near which such railroads might be

constructed.” Id. In accordance with this policy,

rights-of-way under the 1875 Act were “simple

easement[s]” and nothing more. Brandt, 572 U.S. at

110.

Thus, after 1871, Congress facilitated the

development of unsettled public lands by directly

granting land patents to homesteaders subject to

easements for railroad rights-of-way. Denver & Rio

Grande Ry. Co., 150 U.S. at 8; 43 U.S.C. § 937. The

1914 Act achieved its Alaska development goals in a

similar manner. Act of March 12, 1914, 38 Stat. at

306–07 (App. 89a–91a). The 1914 Act uses the same

term—“right-of-way”—as the 1875 Act when referring

to the railroad’s interest. The use of the same term,

placed in the context of the post-1871 change in

railroad policy, demonstrates that Congress intended

to reserve the same interest in the 1914 Act that it

granted in the 1875 Act and other post-1871 Acts, i.e.,

a simple easement. See Smith v. City of Jackson, 544

U.S. 228, 233 (2005) (when Congress uses the same

language in two statutes, it is appropriate to assume

Congress intended the same meaning in both

statutes); compare Act of March 12, 1914, 38 Stat. at

307 (App. 90a); with 43 U.S.C. § 937.

But here the Ninth Circuit held that this Court’s

precedent interpreting the post-1871 laws did not

apply to the 1914 Act because Alaska is different. App.

14a–15a. Specifically, the panel stated that Alaska in

1914 was more undeveloped than the rest of the

western United States was in 1871 and, thus, the 1914

Act was more like the pre-1871 acts. App. 15a–16a.

But even post-1871, there was “immense public

domain

[that]

remain[ed]

unsettled

and

undeveloped[.]” in the West. Denver & Rio Grande Ry.

Co., 150 U.S. at 8. Hence, lack of development does not

distinguish Alaska from the post-1871 American

West.

More to the point, Congress’s post-1871 change in

policy was not because the western United States had

become more developed since the mid-1800s; the

change was because the previous policy did not

achieve Congress’s settlement goals. Great N. Ry. Co.,

315 U.S. at 275. Indeed, members of Congress stated

that granting fee title to railroads went against the

Homestead Act of 1862, Brandt, 572 U.S. at 97, and

thus issued a new policy “for the purpose of securing

homesteads to actual settlers[.]” Cong. Globe, 42d

Cong., 2d Sess., 1585 (1872).

The Ninth Circuit’s opinion assumes that

Congress silently went back on this policy when it

passed the 1914 Act. Despite Congress’s finding that

the pre-1871 policy did not work, Cong. Globe, 42d

Cong., 2d Sess., 1585 (1872), the panel believed that

Congress in the 1914 Act returned to the old,

unworkable way of settling a frontier by severely

restricting the rights of settlers to use their newly

granted land, App. 15a–16a.

Such an interpretation not only assumes that

Congress reversed decades of successful settlement

policy, it assumes that Congress did not mean what it

said when it passed the 1914 Act. The railroad rightof-way was an aid to settlement and development of

Alaska. Act of March 12, 1914, 38 Stat. at 306 (App.

87a). But an “exclusive-use” easement would hinder

the government’s interest in opening lands to

settlement.

Indeed, an “exclusive-use” easement would

prevent full use of patented homesteads in Alaska.

Patents were issued as contiguous parcels, 43 C.F.R.

§ 65.8 (1949), and taken subject to the right-of-way.

See 43 C.F.R. § 74.2 (1949). If the right-of-way had

included a right to exclude the entire width of the

right-of-way, homesteaders would have been

prevented from using the whole of the contiguous

property because one portion of the property would be

cut off from the other. An “exclusive-use” easement

would thus be in direct conflict with the 1914 Act’s

stated policy to aid in the settlement of Alaska. Act of

March 12, 1914, 38 Stat. at 306 (App. 87a).

Moreover, the Ninth Circuit’s opinion not only

contradicts this Court’s precedent on how to interpret

railroad statutes, it contradicts the specific issue

decided in Great Northern. In Great Northern, the

dispute was over who owned the oil and minerals

underlying the right-of-way and, thus, who controlled

the subsurface estate. 315 U.S. at 272. This Court

concluded that the 1875 “Act was designed to permit

the construction of railroads through the public lands

and thus enhance their value and hasten their

settlement,” and that the “achievement of that

purpose does not compel a … grant [that] convey[s] a

fee title to the land and the underlying minerals.” Id.

Thus, the fee owner (there, the United States) owned

the minerals and was in control of how the subsurface

estate was developed. Id.

Here, the Ninth Circuit’s opinion gives ARRC

control not just over the surface estate, but a

significant portion of the subsurface estate as well.

See 45 U.S.C. § 1202(6) (App. 95a–96a) (defining

“exclusive-use easement” to allow for control over

portions of the subsurface estate). As stated above,

this has caused difficulty for utility companies who

own easements under the right-of-way.6 ARRC has

charged these companies significant fees for the

ability to use easements that the utility companies

already hold. District Court Dkt. Nos. 88, 97; 9th Cir.

Dkt. No. 16.

The Ninth Circuit’s opinion grants ARRC fee title

in all but name. Indeed, when ARRC was determining

the rates it would charge for use of the right-of-way in

2021, it instructed its consultant to assume that

ARRC owned in fee simple. ER at 59. But the right-ofway reserved under the 1914 Act is like the rights-ofway reserved in all post-1871 railroad statutes,

namely “simple easement[s],” see Brandt, 572 U.S. at

110. In holding otherwise, the Ninth Circuit issued a

6 The District Court’s opinion attempted to avoid this issue by

stating that it “specifically declined to analyze this aspect of

ARRC’s interest in the [right-of-way] when it denied [amici’s]

Motions to Intervene.” App. 66a n.51. But the Ninth Circuit’s

opinion places no such limits on its analysis and holding.

Furthermore, by holding that ARRC owns an “exclusive-use”

easement, as defined by ARTA, both the District Court and Ninth

Circuit opinions necessarily hold that ARRC can exclude anyone

else with an interest in the property encompassing its easement.

decision in conflict with this Court’s applicable

precedent.

B. The opinion ignores this Court’s rule that

cases interpreting pre-1871 rights-of-way

do not control when interpreting post1871 rights-of-way.

In concluding that a railroad right-of-way is a

unique type of easement, the Ninth Circuit relied on

Territory of New Mexico v. U.S. Tr. Co. of New York,

172 U.S. 171, 183 (1898). App. 14a. In New Mexico,

this Court interpreted a pre-1871 congressional

railroad grant, 172 U.S. at 172, and held that the

railroad had “more than an ordinary easement,” id. at

183. But the Court held that the railroad had more

than an “ordinary easement” because, at the time the

statute at issue was adopted, it was congressional

policy to grant extraordinary fee interests to railroads.

See Great N. Ry. Co., 315 U.S. at 278.

By relying on New Mexico, the Ninth Circuit

ignored this Court’s rule that cases that “deal with

rights of way conveyed by land-grant acts before the

shift in Congressional policy occurred in 1871 … are

not controlling” when interpreting railroad acts that

were adopted after the shift in policy. Great N. Ry. Co.,

315 U.S. at 278.

Brandt reaffirmed this point. 572 U.S. at 103.

There, the government relied on the same out-ofcontext statement from New Mexico that the Ninth

Circuit quoted here. See Brandt, 572 U.S. at 114

(Sotomayor, J., dissenting). But this Court rejected

the government’s argument in Brandt because “cases

describing the nature of pre-1871 rights of way …

[are] ‘not controlling,’ because of the shift in

congressional policy[.]” Id. at 103 (citations omitted).

Whatever property interest Congress granted to

railroads prior to 1871 was not the same interest that

Congress granted to railroads after 1871. Id. The

panel’s prominent reliance on a case interpreting a

pre-1871 act conflicts with how this Court has

instructed lower courts to view such cases when

interpreting post-1871 acts.

C. The opinion conflicts with this Court’s

precedent on the meaning of “right-ofway.”

The panel’s holding also contradicts this Court’s

precedent on the meaning of “right-of-way.” As the

Court recently reiterated, “[a] right-of-way is a type of

easement” that allows “a nonowner a limited privilege

to use the lands of another.” U.S. Forest Serv. v.

Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1844–

45 (2020) (quotations omitted). “And because an

easement does not dispossess the original owner,

[citation], ‘a possessor and an easement holder can

simultaneously utilize the same parcel of land[.]’” Id.

at 1844 (quoting J. Bruce & J. Ely, Law of Easements

and Licenses in Land § 1:1, p. 1–5 (2015)); see also

Brandt, 572 U.S. at 105 n.4. Importantly, the meaning

of “right-of-way” does not change even if the federal

government owns the right-of-way. Cowpasture, 130

S. Ct. at 1844.

While Cowpasture interpreted a 1968 statute, the

term “right-of-way” had the same meaning in 1968 as

it did in 1950, when the federal government issued a

patent to Flying Crown’s predecessor, and in 1914

when Congress passed the Alaska Railroad Act. See

Cowpasture, 140 S. Ct. at 1844–45 (citing

Restatement (First) of Property § 450 (1944) for

meaning of right of way); John Bouvier, 3 Bouvier’s

Law Dictionary and Concise Encyclopedia 3444 (1914)

(“A right of way is the privilege which an individual,

or a particular description of individuals, … have of

going over another’s ground.”). Thus, the 1914 Act—

and the 1950 Patent—reserved only a limited

privilege to use the underlying land. It did not reserve

a possessory interest in that land. See Brandt, 572

U.S. at 105 n.4.

The Ninth Circuit, however, held that ARRC has

something greater than a limited privilege to use the

lands of another. The “exclusive-use” easement

adopted in the opinion gives ARRC unlimited right to

control over 200 feet of surface estate surrounding its

tracks. In other words, the “exclusive-use” easement

dispossess the owners of the servient estates.

In support of its interpretation, the panel relied

on “the general rule of construction that any

ambiguity in a grant is to be resolved favorably to a

sovereign grantor—nothing passes but what is

conveyed in clear and explicit language.” Great N. Ry.

Co., 315 U.S. at 272 (quotations omitted); see App.

17a–18a. But here, the patent contains no ambiguity

because it conveys in clear language fee title to Flying

Crown’s predecessor-in-interest. App. 139a. And it

only reserves a “right of way,” id. a term that means a

limited privilege to use the land of another,

Cowpasture, 140 S. Ct. at 1844–45.

Contrary to the Ninth Circuit’s view, the

sovereign grantor canon does not dictate that a court

should adopt whatever interpretation benefits the

government. See Great N. Ry. Co., 315 U.S. at 273.

Indeed, the “Court long ago declined to apply this

[sovereign-grantor] canon in its full vigor to grants

under the railroad Acts,” Leo Sheep, 440 U.S. at 682.

Rather, the rule that “public grants are construed

strictly against the grantees” should not “‘be so

construed as to defeat the intent of the legislature ….’”

Id. at 682–83 (quoting Denver & Rio Grande R. Co.,

150 U.S. at 14). Notably, the Court in Leo Sheep

construed the statute at issue against the

government, despite the sovereign grantor canon. Id.

at 681.

Here, the panel applied the sovereign grantor

canon in its full vigor to defeat the intent of Congress.

By holding that ARRC has an “exclusive-use”

easement, the Ninth Circuit believed that the rights

of the railroad were greater than the rights of the

underlying homeowner and thus, if it wishes, the

railroad can prevent the servient estate homeowner

from using the entirety of his or her property. But in

passing the 1914 Alaska Railroad Act, Congress

created a railroad to serve settlers, not the other way

around. Congress did not intend for the railroad to be

able to prevent the homesteading that the railroad

was created to provide.

In short, the Ninth Circuit looked to the sovereign

grantor canon to find ambiguity in the term “right-ofway,” rather than interpret the term “right-of-way”

first to determine whether it was ambiguous. As this

Court has recognized, Congress has for over 150 years

used the term “right-of-way” to mean a limited

privilege to use another’s property. And after 1871,

Congress used the term “right-of-way” in railroad

statutes to mean “simple easement.” Brandt, 572 U.S.

at 110. By holding that ARRC has an “exclusive-use”

easement, the Ninth Circuit issued an opinion in

conflict with this Court’s precedents.

III. The Ninth Circuit’s opinion conflicts with

other lower courts’ decisions on the scope of

railroad rights-of-way.

Finally, in holding that ARRC holds a unique

“exclusive-use” easement, the Ninth Circuit decided

that the scope of ARRC’s easement is more exclusive

than nearly every other railroad easement in the

country. In other words, the Ninth Circuit interpreted

the term “right-of-way” beyond how any other court

has interpreted the same term in similar acts. This

conflict is an additional reason why the Petition

should be granted.

The Ninth Circuit cited safety concerns as a

reason why railroad rights-of-way are distinct from

other rights-of-way. App. 6a. But a railroad does not

need an exclusive-use easement to ensure safe

operations because the servient estate has no right to

unreasonably interfere with the use of the easement.

See Restatement (Third) of Property (Servitudes) § 4.9

(2024). As the dominant estate holder, ARRC can

make demands of the servient estate owner—and

even significantly restrict the owner’s use—to ensure

safe operation of the railroad. Id.

Thus, while “it is true that in most instances the

very nature of a railroad will require it to enjoy a

substantial right regardless of the nature of its title,”

courts must still “look to the actual use being made of

this easement in light of the rule that the servient

owner retains the use of an easement so long as that

use does not materially interfere with” the easement

holder’s rights. Veach v. Culp, 599 P.2d 526, 528

(Wash. 1979). But here, the Ninth Circuit did not look

to ARRC’s actual use to determine whether railroad

operations necessitated excluding the servient estate

from using any portion of the right-of-way. If the court

had inquired into ARRC’s use, it would have

concluded that ARRC does not need an “exclusive-use”

easement to ensure safe operations. See ER at 174.

Indeed, the Surface Transportation Board has

recognized that a railroad does not need exclusive use

of its right-of-way to ensure safe operations. See City

of Lincoln v. Surface Transp. Bd., 414 F.3d 858, 863

(8th Cir. 2005) (Surface Transportation Board

adopting the position that “it is well established that

nonconflicting, nonexclusive easements across railroad property are not preempted if they do not hinder

rail operations or pose safety risks.”); Jie Ao & Xin

Zhou—Petition for Declaratory Order, No. FD 35539,

2012 WL 2047726, at *7 (Surface Transp. Bd. June 4,

2012) (“[I]t is often possible for an easement that

crosses over, under, or across a right-of-way, to coexist with active rail operations without necessarily

interfering with the latter.”). And some states

explicitly hold that railroad easements are

nonexclusive, which undermines the Ninth Circuit’s

rationale that a railroad must have exclusive use of its

easement to ensure safe operation. See, e.g., Cheshire

Hunt, Inc. v. United States, 158 Fed. Cl. 101, 109

(2022) (“Under Florida law an easement is presumed

to be nonexclusive and … [t]here is nothing in the []

deed that indicates an intent to convey an exclusive

easement to the Railroad[.]”); Norfolk S. Ry. Co. v.

Smith, 611 S.E.2d 427, 430 (N.C. Ct. App. 2005)

(“Areas of a right-of-way not required for railroad

purposes may be used by the servient owner in

manners not inconsistent with the right-of-way.”).

Even when courts have presumed that a railroad

has some exclusive use of the right-of-way, those

courts still recognize limits on the exclusivity of the

easement. Specifically, many cases that hold railroads

have “exclusive” easements also hold that the

railroads’ exclusive use extends only to the portion

actually used for railroad purposes. See, e.g., Midland

Valley R.R. Co. v. Sutter, 28 F.2d 163, 167 (8th Cir.

1928) (analyzing numerous railroad cases and

synthesizing the rule that the adjoining owner of the

fee can use the “portions of the right of way not being

used by the railroad company and not necessary to the

safe and convenient use of that which is in actual

use”); Kansas City S. Ry. Co. v. Arkansas Louisiana

Gas Co., 476 F.2d 829, 835 (10th Cir. 1973)

(Interpreting two post-1871 railroad statutes and

concluding that a railroad “cannot deprive the owner

of the servient estate ... from making use of the land

in strata below the surface and below substrata which

are used or needed by the railroad company, and

which in nowise ... interferes with the construction,

maintenance and operation of the railroad.”); Home on

the Range v. AT&T Corp., 386 F. Supp. 2d 999, 1023–

24 (S.D. Ind. 2005) (under the 1875 Act, the scope of a

right-of-way over federal land granted to a railroad

was limited to the uses of land consistent with

construction and operation of the railroad).

The Ninth Circuit itself has elsewhere recognized

the limits of a railroad right-of-way. Barahona v.

Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir.

2018). In Barahona, the court held that 1875 Act

rights-of-way were easements and a railroad’s rights

under those easements extend only to those uses that

are “incidental to railroad operations[.]” Id.

Even LKL Associates, Inc. v. Union Pacific

Railroad Co., which the opinion below cited in support

of its holding, recognizes that exclusive use must be in

furtherance of some railroad purpose. 17 F.4th 1287,

1303 (10th Cir. 2021). And while the Tenth Circuit in

LKL Associates took a broad view of what constitutes

a railroad purpose, id., it recognized some limits to the

railroad’s use of the right-of-way when it held that

leases granted by the railroad were invalid because

they did not further a railroad purpose. Id. at 1301.

The decision below, however, places no limits on

ARRC’s use of the right-of-way. Instead, it grants

ARRC exclusive control over 200 feet of surface

estate—and a significant amount of subsurface

estate—even if the railroad is not using those portions

in furtherance of its railroad operations. The Ninth

Circuit’s decision allows ARRC to demand fees from

the servient estate owners to use the easement, as it

has done in the past, even if the servient owners’ use

of the easement does not affect railroad operations in

any way.

In short, the Ninth Circuit has held that ARRC

has a railroad right-of-way more substantial than

nearly any other railroad in the country. The Ninth

Circuit believed that this “exclusive-use” easement

was necessary for the safe operation of the railroad.

But no other railroad in the country needs an

“exclusive-use” easement to safely operate its

railroad. Indeed, the record below clearly reveals that

ARRC can ensure safe operations with a less

burdensome

easement.

easement

than

“exclusive-use”

CONCLUSION

The petition for a writ of certiorari should be

granted.

DATED: March 2024.

Respectfully submitted,

PAIGE E. GILLIARD

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, Virgnia 22201

PGilliard@pacificlegal.org

JEFFREY W. MCCOY*

*Counsel of Record

DAMIEN M. SCHIFF

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

JMcCoy@pacificlegal.org

DSchiff@pacificlegal.org

EVA R. GARDNER

Ashburn & Mason, P.C.

1227 West 9th Avenue, Suite 200

Anchorage, Alaska 99501

eva@anchorlaw.com

Counsel for Petitioner

APPENDIX

Appendix

Table of Contents

Opinion and Order (denying petition for panel

rehearing and rehearing en banc),

U.S. Court of Appeals for the Ninth Circuit,

filed December 29, 2023 ...................................... 1a

Opinion, U.S. Court of Appeals for the

Ninth Circuit, filed September 18, 2023 .......... 22a

Order re: Judge Bade is replacement for Judge

Murguia, U.S. Court of Appeals for the

Ninth Circuit, filed November 21, 2023 ........... 43a

Order Denying Motion to Reconsider,

U.S. District Court for the District

of Alaska, filed June 30, 2022 ........................... 44a

Judgment in a Civil Action, U.S. District

Court for the District of Alaska,

filed April 5, 2022 .............................................. 51a

Order on Cross Motions for Summary Judgment,

U.S. District Court for the District of Alaska,

filed March 10, 2022 .......................................... 53a

An Act To authorize the President of the

United States to locate, construct, and

operate railroads in the Territory of Alaska,

and for other purposes, 38 Stat. 305

(March 12, 1914) ................................................ 87a

Alaska Railroad Transfer Act,

45 U.S.C. §§ 1201–1214..................................... 93a

Grant Deed of land from United States to

Thomas W. Sperstad, February 15, 1950 ....... 138a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA RAILROAD

CORPORATION,

Plaintiff-Appellee,

No. 22-35573

D.C. No. 3:20-cv00232-JMK

FLYING CROWN

SUBDIVISION ADDITION

NO. 1 AND ADDITION NO. 2

PROPERTY OWNERS

ASSOCIATION, a non-profit,

ORDER AND

OPINION

Defendant-Appellant,

and

MUNICIPALITY OF

ANCHORAGE, DEPT OF

LAW,

Intervenor-Defendant.

Appeal from the United States District Court

for the District of Alaska

Joshua M. Kindred, District Judge, Presiding

Argued and Submitted August 15, 2023

Anchorage, Alaska

Filed December 29, 2023

Before: Richard A. Paez, Jacqueline H. Nguyen, and

Bridget S. Bade, Circuit Judges.

Order;

Opinion by Judge Nguyen

_________________________________________________

SUMMARY*

_________________________________________________

Property Law

In a case in which Chief Judge Murguia is recused

and Judge Bade was drawn as a replacement judge,

the panel (1) withdrew the opinion filed on

September 18, 2023; (2) filed a new opinion, reflecting

Judge Bade’s concurrence, affirming the district

court’s summary judgment in favor of Alaska Railroad

Corp. (“ARRC”) in its action seeking to quiet title in a

railroad right-of-way and to clarify that ARRC’s

interest in the right-of-way includes an exclusive-use

easement; (3) denied a petition for panel rehearing;

and (4) denied a petition for rehearing en banc.

ARRC, a state-owned corporation, owns and

operates Alaska’s railroad system. It possesses a

right-of-way on which it operates a section of track

next to an air strip owned by Flying Crown

Subdivision No. 1 and Addition No. 2 Property

Owners Association. ARRC’s right-of-way includes

one-hundred feet on either side of the track’s center

line, some of which directly overlaps with Flying

Crown’s air strip.

The panel held that the Alaska Railroad Act of

1914 authorized the creation of the Alaska Railroad, a

federal railroad, and reserved railroad rights-of-way

to the United States. The Alaska Railroad Transfer

Act of 1982 authorized the federal government to

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the

reader.

transfer nearly all of the Alaska Railroad property

rights to ARRC.

In 1950, the United States issued the “Sperstad

Patent” to Flying Crown’s predecessor in interest. The

Alaska Railroad’s track already traversed the land,

and the Sperstad Patent reserved a railroad right-ofway. The panel held that the 1914 Act did not reveal

the scope of the right-of-way retained by the

government. Considering common law principles, the

sovereign grantor canon, and the court’s interpretation of the general right-of-way statute adopted by

Congress in 1875, the panel concluded that, in the

Sperstad Patent, the federal government intended to

reserve an exclusive-use easement under the 1914

Act. The panel further held that the federal

government transferred the exclusive-use easement it

retained under the 1914 Act to ARRC under the

Alaska Railroad Transfer Act of 1982.

_________________________________________________

COUNSEL

_________________________________________________

Jeffrey W. McCoy (argued), Pacific Legal Foundation,

Highlands Ranch, Colorado; Damien M. Schiff, Pacific

Legal Foundation, Sacramento, California; Paige E.

Gilliard, Pacific Legal Foundation, Arlington,

Virginia; Eva R. Gardner, Ashburn & Mason PC,

Anchorage, Alaska;

Thomas E. Meacham, Thomas E. Meacham Attorney

at Law, Anchorage, Alaska; for Defendant-Appellant.

Michael C. Geraghty (argued) and William G. Cason,

Holland & Hart LLP, Anchorage, Alaska, for PlaintiffAppellee.

Ashley C. Brown and John A. Lehman, Kemppel

Huffman and Ellis PC, Anchorage, Alaska, for Amicus

Curiae Matanuska Telecom Association, Inc.

_________________________________________________

ORDER

The Honorable Chief Judge Mary Murguia is

recused from this case and Judge Bade was drawn as

a replacement judge pursuant to General Order 3.2h

(Dkt. No. 45). The opinion filed on September 18, 2023

is hereby withdrawn. A new opinion reflecting Judge

Bade’s concurrence will be filed contemporaneously

with this order.

The panel has voted to deny the petition for panel

rehearing. Judge Nguyen and Judge Bade have voted

to deny the petition for rehearing en banc, and Judge

Paez has so recommended.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote

on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

The petition for panel rehearing and the petition

for rehearing en banc are denied. No further petitions

for panel rehearing or rehearing en banc will be

entertained.

OPINION

NGUYEN, Circuit Judge:

This case concerns the property rights of two

uniquely Alaskan entities. On one side is Flying

Crown Subdivision Addition No. 1 and No. 2 Property

Owners Association (“Flying Crown”), a homeowners’

association for the eponymous subdivision in

Anchorage, Alaska. Flying Crown is one of many

subdivisions nestled in South Anchorage. But it is not

your average subdivision. The homes in Flying Crown

back up to a small air strip. A Flying Crown

homeowner can walk out her back door, hop into the

plane parked in her backyard, and conveniently taxi

her plane directly onto the grassy take-off and landing

strip that abuts her backyard. Some of Flying Crown’s

homeowners selected the subdivision for that very

reason.

On the other side is the Alaska Railroad

Corporation (“ARRC”), a state-owned corporation that

owns and operates Alaska’s railroad system. The

railroad carries millions of tons of cargo, connects

rural communities to population centers in Anchorage

and Fairbanks, and allows tourists to travel to remote

regions off the state’s road system. ARRC also

possesses a right-of-way on which it operates a section

of track adjacent to Flying Crown’s air strip. Its rightof-way includes one-hundred feet on either side of the

track’s center line, some of which directly overlaps

with Flying Crown’s air strip.

For decades, Flying Crown and ARRC coexisted

peacefully. ARRC operated its railroad, and Flying

Crown’s homeowners took off and landed on the

adjacent air strip. Neither party was legally certain of

the exact property right, but it did not seem to matter.

As far as we are aware, no significant problems arose

because both parties acted in the spirit of mutual

accommodation.

In 2019, Flying Crown sent ARRC a letter

demanding that ARRC relinquish any claim to

exclusive use of the right-of-way. In response, ARRC

filed this action seeking to quiet title in the right-ofway and to clarify that ARRC’s interest in the right-

of-way includes an exclusive-use easement. ARRC’s

claim raises challenging questions about the proper

interpretation of the Alaska Railroad Act of 1914 and

the Alaska Railroad Transfer Act of 1982. We will

explain the legal issues in more detail below, but

suffice it to say that, as a matter of safety, the railroad

must possess the right to exclude anyone—including

Flying Crown homeowners—from its right-of-way.

Accordingly, we hold that ARRC possesses at least an

exclusive-use easement in its right-of-way crossing

Flying Crown’s property. Because the district court

properly granted summary judgment to ARRC and

denied Flying Crown’s cross-motion for summary

judgment, we affirm.

I. Factual, Legal, and Procedural Background

The parties rely on railroad statutes from both the

contiguous United States and Alaska. We start by

reviewing the relevant history of railroad acts in the

continental United States and Alaska before turning

to the factual and procedural background of this

litigation.

A. Railroads in the Continental United States

The continental United States experienced a

significant boom in railroad growth in the 1800s.

Between 1850 and 1871, “Congress embarked on a

policy of subsidizing railroad construction by lavish

grants from the public domain.” Great N. Ry. Co. v.

United States, 315 U.S. 262, 273 (1942). Congress

granted “rights of way through the public domain,

accompanied by outright grants of land along those

rights of way,” conveyed in “checkerboard blocks.”

Marvin M. Brandt Revocable Tr. v. United States, 572

U.S. 93, 96–97 (2014). This policy enabled railroad

companies to “either develop their lots or sell them, to

finance construction of rail lines and encourage the

settlement of future customers.” Id. at 97.

The Supreme Court characterized these pre-1871

rights-of-way as “limited fee[s].”1 N. Pac. Ry. Co. v.

Townsend, 190 U.S. 267, 271 (1903). The pre-1871

rights-of-way were unquestionably exclusive. See New

Mexico v. U.S. Tr. Co., 172 U.S. 171, 183 (1898)

(holding that the railroad’s right-of-way is “more than

an ordinary easement” because it has the “attributes

of the fee, perpetuity and exclusive use and

possession”); W. Union Tel. Co. v. Pa. R.R. Co., 195

U.S. 540, 570 (1904) (“A railroad right of way is a very

substantial thing. It is more than a mere right of

passage. It is more than an easement [and] . . .

‘whatever it may be called, it is, in substance, an

interest in the land, special and exclusive in its

nature.’” (citation omitted)).

Congress’s generous land-grant policy proved

unpopular. Western settlers complained that it

discouraged settlement because railroads were slow to

sell their land. Brandt, 572 U.S. at 97. As a result of

this and other criticisms, “[a]fter 1871 outright grants

of public lands to private railroad companies seem to

have been discontinued.” Great N., 315 U.S. at 274.

Between 1871 and 1875, Congress passed a series of

one-off acts granting individual railroads particular

The Supreme Court initially called the pre-1871 grants

“absolute grant[s],” see St. Joseph & Denver City R.R. Co. v.

Baldwin, 103 U.S. 426, 429–30 (1880), before adopting the

“limited fee” designation, see Barahona v. Union Pac. R.R. Co.,

881 F.3d 1122, 1127 (9th Cir. 2018) (“[T]he Court apparently

endorsed the conclusion that the pre-1871 grants were of a

limited fee.”).

rights-of-way through public land in the western

United States. Id. After several years, “[t]he burden of

this special legislation moved Congress to adopt [a]

general right of way statute” in 1875. Id. at 275.

The Supreme Court distinguished 1875 Act rightof-way grants from their pre-1871 predecessors.

Unlike pre-1871 acts, the 1875 Act “grants only an

easement, and not a fee.” Id. at 271; see also Brandt,

572 U.S. at 104 (“[T]he [Great Northern] Court

specifically rejected the notion that the right of way

conferred even a ‘limited fee.’” (citation omitted)).2 The

Supreme Court has not, however, determined whether

1875 Act rights-of-way are exclusive in nature.

B. Railroads in Alaska

Alaska’s railroad boom lagged several decades

behind the contiguous United States. In the late 1800s

and early 1900s, private railroads began investing in

Alaska in hopes of capitalizing on the Klondike Gold

Rush. But the conditions in Alaska proved challenging

and, ultimately, private railroads failed. Recognizing

that the developing territory needed a reliable

railroad, Congress passed the Alaska Railroad Act of

1914 (“1914 Act”). See Act of March 12, 1914, ch. 37,

38 Stat. 305 (formerly codified at 43 U.S.C. § 975, et

2 The earliest case interpreting an 1875 Act right-of-way called

the railroad’s interest in its right-of-way a “limited fee.” See Rio

Grande W. Ry. Co. v. Stringham, 239 U.S. 44, 47 (1915) (stating

that “[t]he right of way granted by [the 1875 Act] is neither a

mere easement, nor a fee simple absolute, but a limited fee [that]

carries with it the incidents and remedies usually attending the

fee”). Thus, it initially seemed that the Supreme Court would

treat 1875 Act easements like their pre-1871 predecessors. But

the Supreme Court roundly rejected this position in Great

Northern, 315 U.S. at 271.

seq.). The 1914 Act authorized the president to “locate,

construct and operate railroads in the Territory of

Alaska.” Id. The Alaska Railroad was the first—and

only—federally constructed and operated railroad in

the United States. United States v. City of Anchorage,

437 F.2d 1081, 1082 (9th Cir. 1971).

To make the railroad possible, the 1914 Act

required that future land patents by the federal

government in Alaska “reserve[] to the United States

a right of way for the construction of railroads,

telegraph and telephone lines to the extent of one

hundred feet on either side of the center line of any

such road.” 1914 Act § 1.

In the early 1980s, the federal government decided

that Alaska should take over ownership and

management of the railroad. S. Rep. No. 97-479, at 5

(1982). Congress enacted the Alaska Railroad

Transfer Act of 1982 (“ARTA”), 45 U.S.C. §§ 1201–14,

which authorized the federal government to transfer

nearly all of its railroad’s property rights to the state

of Alaska’s new state-owned Alaska Railroad

Corporation. Today, ARRC continues to own and

operate Alaska’s full-service freight and passenger

railroad.

C. Litigation Background

On February 15, 1950, the United States issued

federal patent No. 1128320 to Thomas Sperstad

(“Sperstad Patent”), Flying Crown’s predecessor in

interest. As required by the 1914 Act, the Sperstad

Patent “reserved to the United States a right of way

for the construction of railroads, telegraph and

telephone lines in accordance with the Act of

March 12, 1914.” The Alaska Railroad’s track already

10a

traversed the land when the federal government

issued the Sperstad Patent.

In 1965, John Graham purchased a piece of the

Sperstad Patent to develop the Flying Crown

subdivision. Oceanview Homeowners Ass’n, Inc. v.

Quadrant Const. & Eng’g, 680 P.2d 793, 795 (Alaska

1984). By 1962, an airstrip—which overlapped with

the railroad’s right-of-way—was built on the Sperstad

land. Id. Many of Flying Crown’s homeowners are

pilots and selected the subdivision because of the

airstrip.

Following ARTA’s enactment in 1983, the federal

government transferred the Alaska Railroad’s

easement over what was originally the Sperstad

Patent to ARRC, first by interim conveyance and later

pursuant to Patent No. 50-2006-0363. The patent

purported to convey “not less than an exclusive-use

easement” to ARRC.

ARRC and the Flying Crown homeowners

coexisted peacefully for decades. At some point, ARRC

began charging Flying Crown an annual $4,500

permitting fee to use the airstrip on the right-of-way.

Flying Crown objected to the fee, but the parties

seemed to have resolved the issue without litigation—

ARRC terminated the fee in 2017. ARRC does not

currently charge Flying Crown any permitting fees.

Counsel for ARRC represented at oral argument that

ARRC has no plans to reinstate the permitting fee.

Nevertheless, in 2019, Flying Crown sent ARRC a

letter claiming that the ARTA transfer had

“attempted to award property rights no longer owned

by the federal government” and demanding that

“ARRC immediately proclaim, by means of a legally

11a

recordable document, that it relinquishes any and all

claim to ‘exclusive use’ of the right-of-way.” In

response, ARRC filed this action seeking to quiet title

in the right-of-way and to clarify that ARRC’s interest

in the right-of-way includes an exclusive-use

easement.

The district court granted ARRC’s motion for

summary judgment and denied Flying Crown’s cross

motion. The court held “that ARRC possesses the

interest to at least an exclusive-use easement . . . in

its [right-of-way] crossing Flying Crown’s property.”

Flying Crown appealed.

II. Jurisdiction and Standard of Review

We have jurisdiction because this case turns on

“substantial questions of federal law.” See Grable &

Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545

U.S. 308, 312 (2005); see also 28 U.S.C. § 1331. We

review de novo the district court’s grant or denial of

summary judgment, First Resort, Inc. v. Herrera, 860

F.3d 1263, 1271 (9th Cir. 2017), and we affirm.

III. Analysis

A. The 1914 Act

The Sperstad Patent “reserved to the United

States a right of way for the construction of railroads

. . . in accordance with the [Alaska Railroad Act of

1914].” Accordingly, we turn first to the scope of the

interest reserved by the federal government under the

1914 Act.

The 1914 Act does not define the scope of a “rightof-way,” nor does it include any textual hints as to the

right-of-way’s exclusivity or lack thereof. Flying

Crown contends that the federal government had no

12a

exclusive easement under the 1914 Act and therefore

cannot transfer such interest to the state; ARRC takes

the opposite position. But neither party relies on a

purely textual argument. In the absence of textual

guidance, we rely on contextual indicators—common

law principles, the sovereign-grantor canon, and a

contemporaneous railroad act from the contiguous

United States—to determine whether the federal

government intended to reserve an exclusive-use

easement under the 1914 Act. We conclude that it did.

i. Common Law Principles

We begin with “basic common law principles.”

Brandt, 572 U.S. at 106; accord id. at 104–06.3 Flying

Crown contends that, under common law, easements

are by nature nonexclusive. Not so. “Easements . . .

may be exclusive or nonexclusive,” and “[t]he degree

of exclusivity of the rights conferred by an easement

. . . is highly variable.” Restatement (Third) of

Property: Servitudes § 1.2 cmt. c (2000); see also id.

§ 1.2 cmt. d (“Easements and profits may authorize

the exclusive use of portions of the servient estate[.]”).

Exclusivity is a spectrum that ranges from “no right

to exclude anyone” to “the right to exclude everyone,”

and nearly everything in between. Id. § 1.2 cmt. c.

To determine the degree of exclusivity, “[a]

servitude should be interpreted to give effect to the

intention of the parties ascertained from the language

used in the instrument, or the circumstances

surrounding creation of the servitude, and to carry out

the purpose for which it was created.” Id. § 4.1(1); see

We draw the relevant common law principles from the

Restatement (Third) of Property: Servitudes, just as the Supreme

Court did in Brandt.

13a

also Leo Sheep Co. v. United States, 440 U.S. 668, 682

(1979) (holding that a railroad act should “receive

such a construction as will carry out the intent of

Congress” which can be determined by “the condition

of the country when the acts were passed, as well as

to the purpose declared on their face” (citation

omitted)). Because language in the Sperstad Patent

and the underlying 1914 Act provide little guidance,

we look instead to the purpose and circumstances of

the right-of-way reservation to determine the parties’

intent. Both weigh in favor of a finding an exclusiveuse easement interest.

The express purpose of right-of-way reservations

made pursuant to the 1914 Act was “for the

construction of railroads.” The intent of the railroad

was to

aid in the development of the agricultural

and mineral or other resources of Alaska,

and the settlement of the public lands

therein, and . . . to provide transportation

of coal for the Army and Navy,

transportation of troops, arms, munitions

of war, the mails, and for other

governmental and public uses, and for the

transportation of passengers and property.

1914 Act § 1; see also City of Anchorage, 437 F.2d at

1082 (“The purpose of this railroad was to aid in the

development of the natural resources of the Territory

and the settlement of its public lands by providing

necessary transportation from the coast to the

interior.”).

An exclusive-use easement best serves this

purpose. Safe and efficient operation requires

14a

railroads to have the ability to exclude anyone,

including the servient estate owner, at any time.

Contrary to Flying Crown’s contention, an exclusiveuse easement does not impair the statute’s settlement

purpose. If anything, it facilitates settlement by

ensuring that settlers have dependable access to

transportation and goods.

Railroad rights-of-way are necessarily different

than traditional easements because of the purpose of

the easement. Our circuit has recognized as much. See

Barahona, 881 F.3d at 1134 (“It is beyond dispute that

a railroad right of way confers more than a right to

simply run trains over the land.”). Logically, the scope

of an easement intended to facilitate the passage of

large, fast-moving machinery differs from, say, an

easement to walk across a neighbor’s land to access

the beach. See, e.g., New Mexico, 172 U.S. at 181–82

(“[Right-of-way] may mean one thing in a grant to a

natural person for private purposes, and another

thing in a grant to a railroad for public purposes, as

different as the purposes and uses and necessities,

respectively, are.”). Thus, the purpose of the 1914

Act—to provide a railroad for the territory of Alaska—

is best served by an exclusive-use easement.

The circumstances that led to the creation of the

right-of-way also weigh in favor of finding an

exclusive-use easement. See Leo Sheep, 440 U.S. at

682; Restatement § 4.1(1); see also United States v.

Union Pac. R.R. Co. (“Union Pac. I”), 91 U.S. 72, 79

(1875). Flying Crown contends that the context that

led to the 1914 Act is comparable to the

contemporaneous 1875 Act in the contiguous United

States. But “Alaska is often the exception, not the

rule.” Sturgeon v. Frost, 139 S. Ct. 1066, 1080 (2019)

15a

(citation omitted); Yellen v. Confederated Tribes of the

Chehalis Rsrv., 141 S. Ct. 2434, 2438 (2021)

(highlighting “the unique circumstances of Alaska”).

As discussed above, the federal government

supported railroads in the contiguous United States

through generous land grants until public resentment

developed. Brandt, 572 U.S. at 97. The 1875 Act

resulted from Congress’s shift away from such

extravagant subsidies. Alaska was different. Unlike

the booming railroad industry in the contiguous

United States, Alaskan railroad companies struggled

and frequently failed. In response, the federal

government introduced a radical new policy—the

government itself would construct and operate the

Alaska

Railroad.

Consequently,

widespread

frustration with private railroads’ unmerited

enrichment at the expense of the public—the very

circumstance that led to the 1875 Act—never occurred

in Alaska.

If anything, the circumstances that gave rise to the

Alaska Railroad were more like the pre-1871, rather

than the post-1875, western United States. The

western United States was a vast, undeveloped land

before the completion of the transcontinental railroad

in 1869, see Union Pac. I, 91 U.S. at 80; Alaska was a

similarly vast, undeveloped territory in the early

1900s, see H.R. Rep. No. 92, at 11 (1913). Both

territories held the promise of abundant agricultural

and mineral resources, as well as the potential for

settlement. See Union Pac. I, 91 U.S. at 80; 1914 Act

§ 1. And just as Congress viewed the Alaska Railroad

as a critical tool for the impending global unrest in

1914, see 51 Cong. Rec. S1896 (1914) (“[O]ne of the

prime motive powers behind this bill, or one of the

16a

reasons urged for its passage, is that it is a great

military necessity.”), it similarly viewed a railroad as

essential to Civil War-era security when it passed the

pre-1871 acts, see Brandt, 572 U.S. at 96 (“The Civil

War spurred the effort to develop a transcontinental

railroad[.]”).

In both contexts, serious risks led to substantial

government involvement in creation of the railroad. In

the pre-1871 western United States, “[t]he risks were

great and the costs were staggering,” and thus

“[p]opular sentiment grew for the Government to play

a role in supporting the massive project.” Brandt, 572

U.S. at 96 (“[T]he Federal Government ought to

render immediate and efficient aid in its

construction.” (citation omitted)). The federal

government acquiesced by offering generous land

grants for railroad rights-of-way. In 1914 Alaska,

where the risks were arguably greater and the costs

even more staggering, the government saw the need

to play a more active role in developing the railroad.

H.R. Rep. No. 92, at 12 (1913) (describing the Alaska

Railroad as an “immense undertaking” in light of the

“extreme cold” which requires a railroad “aided or

built by [the] government[]”).

These parallels make sense. The United States

acquired the western territories between 1803 and

1853. Brandt, 572 U.S. at 95 (beginning with the

Louisiana Purchase through the Gadsden Purchase).

The United States purchased the Alaska territory in

1867. Alaska v. United States, 545 U.S. 75, 83 (2005).

Thus, development in Alaska was several decades

behind the western United States. It is unsurprising,

then, that the circumstances of pre-1871 western

United States—where the government granted

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railroad rights-of-way in exclusive-use limited fee—

offer a more apt analogy to 1914 Alaska than the post1875 western United States. Thus, the circumstances

of the 1914 Act weigh in favor of finding at least an

exclusive-use easement.

ii. Sovereign-Grantor Canon

The sovereign-grantor canon also militates in favor

of exclusivity.4 Under the canon, “[any] doubts . . . are

resolved for the Government, not against it.” United

States v. Union Pac. R.R. Co. (“Union Pac. II”), 353

U.S. 112, 116 (1957). Here, the structure of the 1914

Act right-of-way—a reservation to the government

instead of a grant to a private company—requires us

to apply the sovereign-grantor rule to construe the

right-of-way reserved to the government expansively.

Flying Crown emphasizes the Supreme Court’s

common articulation of the principle—“nothing passes

except what is conveyed in clear language”—to argue

that we should limit the government’s reservation to

its explicit language. But Supreme Court cases that

cite the principle arise from a governmental grant of a

right-of-way to a private party. See Great N., 315 U.S.

at 272; Union Pac. II, 353 U.S. at 116; Brandt, 572

U.S. at 110 n.5. In that context, the Court has limited

4 Flying Crown contends that the sovereign-grantor rule applies

with less vigor to railroad acts. We disagree. Leo Sheep’s

statement that “this Court long ago declined to apply [the

sovereign grantor] canon in its full vigor to grants under the

railroad Acts” introduces some confusion when read in isolation.

440 U.S. at 682. But Leo Sheep stands for the proposition that

the sovereign-grantor rule cannot overcome the legislature’s

stated or implied intent—not that the sovereign-grantor rule no

longer applies. Id. (“[P]ublic grants are construed strictly against

the grantees, but they are not to be so construed as to defeat the

intent of the legislature[.]” (citation omitted)).

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the grant to its explicit terms. But, here, the

government reserved a right-of-way to itself. If we

were to limit the reservation to its explicit terms, we

would resolve doubts against the government—not for

it. We instead follow the animating principle behind

the sovereign-grantor canon, that ambiguity in land

grants should be resolved in favor of the government,

to interpret the reservation expansively. Thus, the

sovereign-grantor canon weighs in favor of finding at

least an exclusive-use easement.

iii. Contemporaneous Railroad Statute

Finally, reading the 1914 Act in concert with the

1875 Act supports exclusivity. Flying Crown contends

that the 1875 Act granted nonexclusive easements

and that similar language in the 1914 Act dictates the

same conclusion. As noted above, the 1875 Act is an

inapt analogy to the 1914 Act. But even assuming the

1875 Act is pertinent, Flying Crown’s argument fails

because it rests on the faulty premise that the 1875

Act granted nonexclusive easements.

The Supreme Court has opined on several aspects

of the interest granted by an 1875 Act right-of-way.

For instance, an 1875 Act right-of-way does not

include the right to drill for and remove subsurface oil,

gas, and minerals. Great N., 315 U.S. at 279. And

when the railroad abandons an 1875 Act easement,

the easement extinguishes, and the interest goes to

the servient landowner (not the government). Brandt,

572 U.S. at 105–06.

But the Supreme Court has never addressed

whether an 1875 Act easement is exclusive or

nonexclusive. See L.K.L. Assocs., Inc. v. Union Pac.

R.R. Co., 17 F.4th 1287, 1308 (10th Cir. 2021)

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(Briscoe, J., concurring in part and dissenting in part)

(“What the Supreme Court did not address in Brandt,

because it did not need to, is whether an easement

granted under the 1875 Act is exclusive or nonexclusive.”). The only circuit to answer the question,

the Tenth Circuit, held that “[a]n 1875 Act easement

allows the grantee to exclude everyone—including the

grantor and fee owner.” Id. at 1295.

We see no reason to depart from our sister circuit’s

sound reasoning. The 1875 Act stated that a railroad

could not exclude its competitors from physically

narrow passages like canyons. 43 U.S.C. § 935. The

Tenth Circuit held that this language implied that an

1875 Act easement is exclusive, subject to specific

exceptions such as in narrow passages. L.K.L., 17

F.4th at 1295–96. In doing so, the Tenth Circuit

rejected the plaintiffs’ contention that Brandt and

Great Northern foreclosed exclusivity. Id. at 1297

(holding that Brandt and Great Northern turned on

the difference between an easement and a possessory

interest, which “is not relevant to whether a railroad

with an 1875 Act easement has the right to exclude”).

We agree. And if the 1875 Act grants exclusive-use

easements, then it is only logical that the federal

government reserved no less than an exclusive-use

easement for itself in Alaska. Indeed, Flying Crown

offers no rationale for why the federal government

would reserve a lesser property interest for itself in

the 1914 Act than it granted to private railroads in the

1875 Act.

In sum, the language of the 1914 Act does not

reveal the scope of the right-of-way retained by the

government. But common law principles, the

20a

sovereign grantor canon, and our interpretation of the

1875 Act all lead us to hold that the federal

government reserved no less than an exclusive-use

easement under the 1914 Act.

B. ARTA

We turn now to the scope of the interest

transferred from the federal government to ARRC

pursuant to ARTA. We hold that the federal

government transferred the exclusive-use easement it

retained under the 1914 Act to ARRC under ARTA.

ARTA requires the federal government to grant

“not less than an exclusive-use easement” to the State

under certain circumstances, all of which were met

here. 45 U.S.C. § 1205(b)(4)(B). Specifically, as

relevant here, ARTA set out the following “procedures

applicable” to lands to be transferred:

[w]here lands within the right-of-way, or

any interest in such lands, have been

conveyed from Federal ownership prior to

January 14, 1983, or is subject to a claim

of valid existing rights by a party other

than a Village Corporation, the conveyance

to the State of the Federal interest in

such properties pursuant to section

1203(b)(1)(B) or (2) of this title shall grant

not less than an exclusive-use easement in

such properties.

Id. (emphasis added).

The Sperstad Patent meets all the conditions of

§ 1205(b)(4)(B). The Sperstad Patent included land

within the railroad right-of-way. The federal

government granted the Sperstad Patent in 1950,

meaning that the land was “conveyed from Federal

21a

ownership prior to January 14, 1983.” Id. And

ARTA authorized transfer of the easement across

the Sperstad Patent pursuant to 45 U.S.C.

§ 1203(b)(1)(B).

Under

the

plain

text

§ 1205(b)(4)(B), then, “the conveyance to the State of

the Federal interest” in this case “shall grant not less

than an exclusive-use easement.”

Citing to Encino Motorcars, LLC v. Navarro,

Flying Crown instead contends that we should apply

the distributive canon to read § 1205(b)(4)(B) as

referring to property interests that have been

conveyed and are subject to a claim of valid existing

rights or property interests that have not been

conveyed and are subject to a claim of valid existing

rights. 138 S. Ct. 1134, 1141–42 (2018). But the

distributive canon has no role here. The Supreme

Court held in Encino that “‘or’ is ‘almost always

disjunctive.’” Id. at 1141 (quoting United States v.

Woods, 571 U.S. 31, 45 (2013)). Indeed, the Court

eschewed the distributive canon in favor of the

ordinary, disjunctive meaning of “or” because it was

the “more natural reading.” Id. at 1142. Likewise, we

find that the ordinary, disjunctive reading is the most

natural reading of § 1205(b)(4)(B).

IV. Conclusion

We hold that the 1914 Act reserved an exclusiveuse easement for the Alaska Railroad and that the

federal government transferred that exclusive-use

easement to the state under ARTA. Accordingly, the

district court properly granted ARRC’s motion for

summary judgment and denied Flying Crown’s crossmotion for summary judgment.

AFFIRMED.

22a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA RAILROAD

CORPORATION,

Plaintiff-Appellee,

No. 22-35573

D.C. No. 3:20-cv00232-JMK

FLYING CROWN

SUBDIVISION ADDITION

NO. 1 AND ADDITION NO. 2

PROPERTY OWNERS

ASSOCIATION, a non-profit,

OPINION

Defendant-Appellant,

and

MUNICIPALITY OF

ANCHORAGE, DEPT OF

LAW,

Intervenor-Defendant.

Appeal from the United States District Court

for the District of Alaska

Joshua M. Kindred, District Judge, Presiding

Argued and Submitted August 15, 2023

Anchorage, Alaska

Filed September 18, 2023

Before: Mary H. Murguia, Chief Judge, and

Richard A. Paez and Jacqueline H. Nguyen,

Circuit Judges.

Opinion by Judge Nguyen

23a

_________________________________________________

SUMMARY*

_________________________________________________

Property Law

The panel affirmed the district court’s summary

judgment in favor of Alaska Railroad Corp. (“ARRC”)

in its action against Flying Crown Subdivision No. 1

and Addition No. 2 Property Owners Association,

seeking to quiet title in a railroad right-of-way and to

clarify that its interest in the right-of-way includes an

exclusive-use easement.

ARRC, a state-owned corporation, owns and

operates Alaska’s railroad system. It possesses a

right-of-way on which it operates a section of track

next to an air strip owned by Flying Crown, a

homeowners’ association. ARRC’s right-of-way

includes one-hundred feet on either side of the track’s

center line, some of which directly overlaps with

Flying Crown’s air strip.

The panel held that the Alaska Railroad Act of

1914 authorized the creation of the Alaska Railroad, a

federal railroad, and reserved railroad rights-of-way

to the United States. The Alaska Railroad Transfer

Act of 1982 authorized the federal government to

transfer nearly all of the Alaska Railroad property

rights to ARRC.

In 1950, the United States issued the “Sperstad

Patent” to Flying Crown’s predecessor in interest. The

Alaska Railroad’s track already traversed the land,

* This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the

reader.

24a

and the Sperstad Patent reserved a railroad right-ofway. The panel held that the 1914 Act did not reveal

the scope of the right-of-way retained by the

government. Considering common law principles, the

sovereign

grantor

canon,

and

the

court’s

interpretation of the general right-of-way statute

adopted by Congress in 1875, the panel concluded

that, in the Sperstad Patent, the federal government

intended to reserve an exclusive-use easement under

the 1914 Act. The panel further held that the federal

government transferred the exclusive-use easement it

retained under the 1914 Act to ARRC under the

Alaska Railroad Transfer Act of 1982.

_________________________________________________

COUNSEL

Michael C. Geraghty (argued) and William G. Cason,

Holland & Hart LLP, Anchorage, Alaska, for PlaintiffAppellee.

Jeffrey W. McCoy (argued), Pacific Legal Foundation,

Highlands Ranch, Colorado; Damien M. Schiff, Pacific

Legal Foundation, Sacramento, California; Paige E.

Gilliard, Pacific Legal Foundation, Arlington,

Virginia; Eva R. Gardner, Ashburn & Mason PC,

Anchorage, Alaska; Thomas E. Meacham, Thomas E.

Meacham Attorney at Law, Anchorage, Alaska; for

Defendant-Appellant.

John A. Leman and Ashley C. Brown, Kemppel

Huffman and Ellis PC, Anchorage, Alaska, for Amicus

Curiae Matanuska Telecom Association Inc.

25a

OPINION

NGUYEN, Circuit Judge:

This case concerns the property rights of two

uniquely Alaskan entities. On one side is Flying

Crown Subdivision Addition No. 1 and No. 2 Property

Owners Association (“Flying Crown”), a homeowners’

association for the eponymous subdivision in

Anchorage, Alaska. Flying Crown is one of many

subdivisions nestled in South Anchorage. But it is not

your average subdivision. The homes in Flying Crown

back up to a small air strip. A Flying Crown

homeowner can walk out her back door, hop into the

plane parked in her backyard, and conveniently taxi

her plane directly onto the grassy take-off and landing

strip that abuts her backyard. Some of Flying Crown’s

homeowners selected the subdivision for that very

reason.

On the other side is the Alaska Railroad

Corporation (“ARRC”), a state-owned corporation that

owns and operates Alaska’s railroad system. The

railroad carries millions of tons of cargo, connects

rural communities to population centers in Anchorage

and Fairbanks, and allows tourists to travel to remote

regions off the state’s road system. ARRC also

possesses a right-of-way on which it operates a section

of track adjacent to Flying Crown’s air strip. Its rightof-way includes one-hundred feet on either side of the

track’s center line, some of which directly overlaps

with Flying Crown’s air strip.

For decades, Flying Crown and ARRC coexisted

peacefully. ARRC operated its railroad, and Flying

Crown’s homeowners took off and landed on the

adjacent air strip. Neither party was legally certain of

26a

the exact property right, but it did not seem to matter.

As far as we are aware, no significant problems arose

because both parties acted in the spirit of mutual

accommodation.

In 2019, Flying Crown sent ARRC a letter

demanding that ARRC relinquish any claim to

exclusive use of the right-of-way. In response, ARRC

filed this action seeking to quiet title in the right-ofway and to clarify that ARRC’s interest in the rightof-way includes an exclusive-use easement. ARRC’s

claim raises challenging questions about the proper

interpretation of the Alaska Railroad Act of 1914 and

the Alaska Railroad Transfer Act of 1982. We will

explain the legal issues in more detail below, but

suffice it to say that, as a matter of safety, the railroad

must possess the right to exclude anyone—including

Flying Crown homeowners—from its right-of-way.

Accordingly, we hold that ARRC possesses at least an

exclusive-use easement in its right-of-way crossing

Flying Crown’s property. Because the district court

properly granted summary judgment to ARRC and

denied Flying Crown’s cross-motion for summary

judgment, we affirm.

I. Factual, Legal, and Procedural Background

The parties rely on railroad statutes from both the

contiguous United States and Alaska. We start by

reviewing the relevant history of railroad acts in the

continental United States and Alaska before turning

to the factual and procedural background of this

litigation.

A. Railroads in the Continental United States

The continental United States experienced a

significant boom in railroad growth in the 1800s.

27a

Between 1850 and 1871, “Congress embarked on a

policy of subsidizing railroad construction by lavish

grants from the public domain.” Great N. Ry. Co. v.

United States, 315 U.S. 262, 273 (1942). Congress

granted “rights of way through the public domain,

accompanied by outright grants of land along those

rights of way,” conveyed in “checkerboard blocks.”

Marvin M. Brandt Revocable Tr. v. United States, 572

U.S. 93, 96–97 (2014). This policy enabled railroad

companies to “either develop their lots or sell them, to

finance construction of rail lines and encourage the

settlement of future customers.” Id. at 97.

The Supreme Court characterized these pre-1871

rights-of-way as “limited fee[s].”1 N. Pac. Ry. Co. v.

Townsend, 190 U.S. 267, 271 (1903). The pre-1871

rights-of-way were unquestionably exclusive. See New

Mexico v. U.S. Tr. Co., 172 U.S. 171, 183 (1898)

(holding that the railroad’s right-of-way is “more than

an ordinary easement” because it has the “attributes

of the fee, perpetuity and exclusive use and

possession”); W. Union Tel. Co. v. Pa. R.R. Co., 195

U.S. 540, 570 (1904) (“A railroad right of way is a very

substantial thing. It is more than a mere right of

passage. It is more than an easement [and] . . .

‘whatever it may be called, it is, in substance, an

interest in the land, special and exclusive in its

nature.’” (citation omitted)).

The Supreme Court initially called the pre-1871 grants

“absolute grant[s],” see St. Joseph & Denver City R.R. Co. v.

Baldwin, 103 U.S. 426, 429–30 (1880), before adopting the

“limited fee” designation, see Barahona v. Union Pac. R.R. Co.,

881 F.3d 1122, 1127 (9th Cir. 2018) (“[T]he Court apparently

endorsed the conclusion that the pre-1871 grants were of a

limited fee.”).

28a