# Record and brief — Marvin M. Brandt Revocable Trust v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0888%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2014 - **Citation:** 572 U.S. 93 ## Text No. 12-1173 Title: Marvin M. Brandt Revocable Trust, et al., Petitioners v. United States Docketed: March 26, 2013 Lower Ct United States Court of Appeals for the Tenth Circuit Case Nos.: (09-8047) Decision Date: September 11, 2012 Rehearing Denied: December 26, 2012 Questions Presented ~~~Date~~~ ~~~~~~~Proceedings and Orders Mar 22 2013 Petition for a wnt of certioran filed. (Response due April 25, 2013) Apr 17 2013 Order extending time to file response to petition to and including May 28, 2013 Apr 23 2013 Brief amicus curiae of Pacific Legal Foundation filed. Apr 25 2013 Brief amici curiae of Cato Institute, et al. filed. Apr 25 2013 Brief amicus curiae of Owners’ Counsel of America filed. May 28 2013 Order further extending time to file response to petition to and including June 27, 2013. Jun 18 2013 Order further extending time to file response to petition to and including August 1, 2013. Jul 24 2013 Order further extending time to file response to petition to and including September 5, 2013. Sep 52013 Brief of respondent United States filed. Sep 6 2013 Letter of September 6, 2013, from counsel for petitioners received. Sep 11 2013 DISTRIBUTED for Conference of September 30, 2013. Oct 12013 Petitions GRANTED. Oct 21 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners. Nov 42013 SET FOR ARGUMENT ON Tuesday, January 14, 2014. Nov 15 2013 Joint appendix filed. (Statement of costs filed) Nov 15 2013 Bnef of petitioners Marvin M. Brandt Revocable Trust, et al. filed. Nov 19 2013 Record from the U.S.C.A. 10th Circuit is electronicand located on PACER. One additional record from the U.S.C.A. 10 Circuit (1 envelope). Nov 19 2013 Bnef amicus curiae of Northwest Lega! Foundation filed. (Distributed) Nov 20 2013 Motion for leave to file amici brief filed by Owners' Counsel of America, et al. Nov 21 2013 CIRCULATED. Nov 22 2013 Brief amici curiae of Cato Institute, et al. filed. (Distributed) Nov 22 2013 Bnef amicus curiae of National Association of Reversionary Property Owners filed. (Distributed) Nov 22 2013 Bnef amicus curiae of Pacific Legal Foundation and Center for Constitutional Jurisprudence filed. (Distributed) Nov 22 2013 Bnef amicus curiae of New England Legal Foundation filed. (Distnbuted) Dec 92013 Motion for leave to file amici brief filed by Owners’ Counsel! of America, et al. GRANTED. Dec 16 2013 Brief of respondent United States filed. (Distributed) Dec 23 2013 Bnef amici curiae of Rails To Trails Conservancy, et al., filed. (Distributed) Dec 23 2013 Bnef amici curiae of National Conference of State Legislatures, et al. filed. (Distributed) Dec 23 2013 Brief amici curiae of States of New Mexico, et al. filed. (Distributed) Jan 72014 Reply of petitioners Marvin M. Brandt Revocable Trust, et al. filed. (Distributed) Jan 14 2014 Argued. For petitioners: Steven J. Lechner, Lakewood, Colo. For respondent: Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C. Mar 10 2014 Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion. PETITION FOR WRIT OF CERTIORARI 12-1173 3n The Supreme Court of the Anited States ° MARVIN M. BRANDT REVOCABLE TRUST AND MARVIN M. BRANDT, TRUSTEE, Petitioners, v. UNITED STATES OF AMERICA, Respondent. ¢ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit * PETITION FOR WRIT OF CERTIORARI e STEVEN J. LECHNER, Esq. Counsel of Record JEFFREY W. McCoy, Esq. MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) lechner@mountainstateslegal.com jmccoy@mountainstateslegal.com Counsel for Petitioners —— (OM KLE CAW BRIEF PRINTING €0) oR 925 oe OR CALL COLLET are t47 Nth QUESTION PRESENTED This case involves the General Railroad Right- of-Way Act of 1875 (“1875 Act”), under which thou- sands of miles of rights-of-way exist across the United States. In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), this Court held that 1875 Act rights-of-way are easements and not limited fees with an implied reversionary interest. Based upon the 1875 Act and this Court’s decisions, the Federal and Seventh Circuits have concluded that the United States did not retain an implied reversionary interest in 1875 Act rights-of-way after the underlying lands were patented into private ownership. In this case, the Tenth Circuit reached the opposite conclusion and acknowledged that its decision would continue a cir- cuit split. The question presented is: Did the United States retain an implied rever- sionary interest in 1875 Act rights-of-way after the underlying lands were patented into private owner- ship? il PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioners are Marvin M. Brandt Revocable Trust and Marvin M. Brandt, Trustee (collectively “Brandts”). The Brandts were defendants in the U.S. District Court for the District of Wyoming and appel- lants before the U.S. Court of Appeals for the Tenth Circuit. The Brandts are not corporate entities. Respondent is the United States of America. The United States initiated this action against the Brandts and others, and was the appellee below. Wyoming and Colorado Railroad Company (“WYCO”) is a Utah corporation and was a defen- dant below. WYCO did not participate in the Tenth Circuit proceedings. The other defendants were: Board of County Commissioners, Albany County, Wyoming; DuWayne Keeney; Elizabeth Keeney; Susan Torres; Juan Torres; Bunn Family Trust, Debra R. Hinkel, Trustee; Roger L. Morgan; Daniel K. McNierney; Susan McNierney; Ralph L. Lockhart; Duane King; Patricia King; Marilyn Flint; Marjorie Secrest; Gary Williams; June Williams; Glenna Louise Marrs Trust, Glenna Marrs and Rondal Wayne, Trustees; Kenneth R. Lankford IJ; Kenneth R. Lankford, Sr.; Patrick R. Rinker; Patricia A. Rinker Flanigin; David Yeutter; Marilyn Yeutter; Snowy Range Properties, LLC; Michael Palmer; Sally Palmer; Ray L. Waits; Breazeale Revocable Trust, ill PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT - Continued Vernon H. and Norma J. Breazeale, Trustees; Eugene L. Budnick; Donald Graff; Wanda Graff; Lawrence R. Otterstein; Ginny L. Otterstein; Ronald B. Yeutter; Helen D. Yeutter; Patrick R. Rinker; Lynda L. Rinker; Edmund L. Gruber; Donna Ellen Gruber; Robert S. Pearce; Dorothy M. Pearce; David M. Pearce; Steven M. Pearce; Kathlynn A. Lambert; Steven P. Taffe; Janis A. Taffe; Billy M. Ratliff; and Tobin L. Ratliff. None of these defendants participated in the Tenth Circuit proceedings. iV TABLE OF CONTENTS Page QUESTION PRESENTED.................ccccssseccccccesssees i PARTIES TO THE PROCEEDINGS AND RULE IIE cnicintnsstponnensituannsmaiibunaniianiaien il GE GUF EE EI vcwercninecisncssssesnscesssosoness vill PETITION FOR WRIT OF CERTIORAR]............ 1 I ET a vcecsininsniinspeiisatsngimicanisuenniaendeenens l STATEMENT OF JURISDICTION .........0..000..0..... 1 STATUTORY PROVISIONS AT ISSUE ................ 2 STATEMENT OF THE CASE.....................eeee 2 I. LEGAL BACKGROUND ...................ccc0ees00 2 A. Railroad Land Grants ........................... 2 B. The General Railroad Right-Of-Way ee SE cacteniccdnnctenenscineniiaininetnienela 3 C. This Court’s Decision In Stringham ..... 5 D. Congress Responds To Stringham ........ 6 E. This Court Rejects Stringham And Re- affirms That 1875 Act ROWs Are Ease- F. The National Trails System Improve- I TA Te SI elitr ccctetsinesiienscrsinineninindi 9 II. PROCEEDINGS BELOW..............00.00.0.0.0... 10 REASONS FOR GRANTING THE PETITION ..... 15 I. II. ITT. TABLE OF CONTENTS -— Continued Page THE TENTH CIRCUIT'S RULING THAT THE UNITED STATES RETAINED AN IMPLIED REVERSIONARY INTEREST IN 1875 ACT ROWS CONFLICTS WITH THIS COURTS RULING IN GREAT ET iincabniidisscunencavieihinboniiesiadiinaununans THE TENTH CIRCUIT'S RULING THAT THE UNITED STATES RETAINED AN IMPLIED REVERSIONARY INTEREST IN 1875 ACT ROWS CONFLICTS WITH THIS COURT’S PRECEDENT REGARD- ING THE SANCTITY OF PATENTS AND THIS COURT'S RULING IN LEO SHEEP... THE TENTH CIRCUIT’S RULING THAT THE UNITED STATES RETAINED AN IMPLIED REVERSIONARY INTEREST IN 1875 ACT ROWS CONFLICTS WITH DECISIONS FROM THE FEDERAL AND yy —__ — . “p » a he . | | APR 25 2013: No. 12-1173 3n The Supreme Court of the Anited States o> MARVIN M. BRANDT REVOCABLE TRUST AND MARVIN M. BRANDT. TRUSTEE. Petitioners. Y. UNITED STATES OF AMERICA, Respondent. ¢-- On Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit + BRIEF AMICUS CURIAE OF OWNERS’ COUNSEL OF AMERICA IN SUPPORT OF PETITIONERS + ROBERT H. THOMAS Counsel of Record MARK M. MURAKAMI BETHANY C.K. ACE Damon Key Leong Kupchak Hastert 1008 Bishop Street, 16th Floor Honolulu. Hawaii 96813 (SOR) 531-8031 rhta@hawatlauver.com Counsel for Amicus Curiae QUESTION PRESENTED This case involves the General Railroad Right-of- Way Act of 1875 (“1875 Act”), under which thousands of miles of rights-of-way exist across the United States. In Great Northern Ry. Co. v. United States. 315 U.S. 262 (1942), this Court held that 1875 Act rights-of-way are easements and not limited fees with an implied reversionary interest. Based upon the 1875 Act and this Court's decisions, the Federal and Seventh Circuits have concluded that the United States did not retain an implied reversionary inter- est in 1875 Act rights-of-way after the underlying lands were patented into private ownership. In this case, the Tenth Circuit reached the opposite conclu- sion and acknowledged that its decision would con- tinue a circuit split. The question presented 1s: Did the United States retain an implied reversion- ary interest in 1875 Act rights-of-way after the underlying lands were patented into private owner- ship? li TABLE OF CONTENTS QUESTION PRESENTED .......................:scsceeees TAR OF ALT TEIGRn 0 BU onc sccecccccesccccvsceecccsss INTEREST OF THE AMICUS CURIAE.......... SUMMARY OF ARGUMENT ...................:220000e TET “ctiniineasnaningecenitnmininnippecnsntintiniitnnnbedte I. DERAILING 1875 ACT TAKINGS II. REVISING RIGHT OF WAY TO MEAN AN “IMPLIED” REVERSIONARY INTEREST FUNDAMENTALLY DEPARTS FROM ITS UNDERSTOOD RIE ditscconseiniecdnntensesaeubeciehuansinabnaigiiies oD} or 19 11] TABLE OF AUTHORITIES CASES Agins v. City of Tiburon, 447 U.S. 258 ail inscutcucincsapetcenstnetienapiandninnabiiiniadiinkesesenete Anna F. Nordhus Trust v. United States, 98 Fed. Cl. 331 (2011).................... senintindinianii Arkansas Game and Fish Comm'n v. United States, 133 S. Ct. 511 (2012).......... Astoria Federal Savings and Loan Asso- ciation v. Solimino, 501 U.S. 104 (1991) Beres v. United States, 64 Fed. Cl. 403 Biery v. United States, 99 Fed. Cl. 565 ai ccabiohansinitileassigieesdeisieiciaiiicacabanniia ancepiniceeaietpiaiels Bright v. United States, 603 F.3d 1273 I ek hae) Capreal, Inc. v. United States, 99 Fed. Cl. | MERE Recht sR ee alts ae etree ' City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) ......... Dolan v. City of Tigard, 512 U.S. 374 STE ensardanthiveninedtesaamniindcinssastesastansieniianias Page 9 eee eee wwe — 9 2 eee eee eee —s “eee eee eee 7 lV TABLE OF AUTHORITIES—Continued Ellamae Phillips Co. v. United States, 564 F.3d 1367 (Fed. Cir. 2009)...............c000000+- Ellamae Phillips Co. v. United States, 99 ee i SE I iis cenitciedacircitedemedinencentinnicns Evans v. United States, 694 F.3d 1377 (Fed. Cir. 2012)..... gesaliat iiiniacbilanioecacuiaininianide Farmers Co-op. Co. v. United States, 98 Es Is BEE IU a sitetnencesedeadeeiencseseasdesenies First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. a i Great Northern Ry. Co. v. United States, Re ee Ce I iieccccnsttiindiiincdeanitipinantinne Green v. Bock Laundry Machine Co., 490 oF fe ASIST MEATEAR SS eae Hash v. United States, No. 1:99-CV- 00324-MHW, 2012 WL 1252624 (D. I I lta Page Vv TABLE OF AUTHORITIES—Continued Page Howard v. United States, 964 N.E.2d 779 a g Ingram v. United States, 105 Fed. Cl. 518 RET RPE PRT a ee Oe Re ERED See ede are i) Isbrandtsen Co. v. Johnson, 343 U.S. 779 Is ott oil sta ialdele ee bibl elias aah cithibniatelacieedseneadan 18 Kaiser Aetna v. United States, 444 U.S. EERE PRE ree hse ee On eo eN re eee ee Re 2 Kelo v. City of New London, 545 U.S. 469 i a sieiesiamernainaions 2 Koontz v. St. Johns River Water Man- agement District, No. 11-1447 .......................0.0008 2 Ladd v. United States, No. 2012-5086, 2013 WL 1405871 (Fed. Cir. Apr. 9, LITER ee ee BETES OT eT On ROC EER on PE Ce eee 10 vi TABLE OF AUTHORITIES—Continued Page Lingle v. Chevron U.S.A., Inc., 544 U.S. oa ass leelebeeereadaaadbaneaaniiin 2 Lucas v. South Carolina Coastal Council, EE TR A na a ne 2 Macy Elevator v. United States, 97 Fed. ek EE PERERA ice meer ot eee me OIE re we Pree 9 Michigan Dep't of Nat. Resources v. Car- mody-Lahti Real Estate, Inc., 699 a ls CE IE MIE icreieressisiccresicencowsnteinndsonipnes 14 Milwaukee v. Illinois, 451 U.S. 304 (1981) ............ 15 Mobil Oil Corp. v. Higginbotham, 436 te I rica bisbacincndntaunddasosdnasmansteienibies 15, 18 New Mexico v. U.S. Trust Co., 172 U.S. | RSS PEW oo oe no MERTON CCR 14 Nollan v. Cal. Coastal Comm'n, 483 U.S. ak a arlanlenaneninaiaaniinn 2 Northern Pac. Ry. Co. v. Townsend, 190 | —__L___ A ETR IS AS ETe Sieh ne oT sn Pan 15 vu TABLE OF AUTHORITIES—Continued Page Palazzolo v. Rhode Island, 533 U.S. 606 AT BEET Ee Ae TT COLES DEL FILE EER TOT Pe 2 Pollnow v. State Dep't of Nat. Resources, eo FR Om he Terre 13-14 Preseault v. Interstate Commerce Comems te, 4046 U.S. 1 (IGG) .....ccccsccccccccccceses passim Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1986) (en banc) ........................... 5. 6. 10 Quinn v. Pere Marquette Rv. Co., 239 se I iis ici ahadlascnadinusdioseinuneinlanniin 14 Raulerson v. United States, 99 Fed. Cl. 9 | RR Ts OE EES ae Lee ee a eee ee 10 Rogers v. United States, 101 Fed. Cl. 287 |RSS REI ACTER I perro AONE ORL BC ORE 9-10 San Remo Hotel, L.P v. City and County of San Francisco, 545 U.S. 323 (2005) ................. 2 Shaw v. Railroad Co., 101 U.S. 5357 EER ene PRE ee ee a RRR IMR CRA 18 Smith v. Hall, 72 N.W. 427 (owa 1897) ................ 14 vill TABLE OF AUTHORITIES—Continued Page Southern Ry. Co. v. City of Memphis, 97 Ie i elicleiiiiaite 12 Stop the Beach Renourishment, Inc. v. Fla. Dep't of EnvtT Protection, 130 S. Ct. EE aR ER Lee ae ewe Leen en Nera 2 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regi Planning Agency, 535 U.S. 302 i a ia taal lal ca ail iel nall eata ananeeinmanmatians 2 Toews v. United States, 376 F.3d 1371 ES IE ee ee OPN eR 8 United States v. Texas, 507 U.S. 529 SE TRAE SS RGIS: t-e RRNA ET eae er 18 Williams v. Western Union Ry. Co., 5 I es ccdiesnglneiae 13 Wyoming v. Udall, 379 F.2d 635 (10th Cir.), cert. denied, 389 U.S. 985 (1967) ... 14-15, 16 Winter v. Natural Resources Def. Council, Se ns ce stedeeeiandiibanatineaial 2 1x TABLE OF AUTHORITIES—Continued Page Ybanez v. United States, 98 Fed. Cl. 659 ARIE Ei vosinsseccectnarniesiebndiveticeasieeseneiehiinadiiiisiadmiaaniadeana anne amnennn 8 Ybanez v. United States, 102 Fed. Cl. 82 ITE ti sco-cctasceesestiendalgsensinastieidideiciaseslacnndamniaimedaaae hata ] Yee v. City of Escondido, 503 U.S. 519 OI... cnsnnssinionisanineriscstsnn:iebbieansaadsccadlcatenaheanda mena 2 CONSTITUTIONS, STATUTES, AND RULES CP SAE. GRIN W iccccncssstctinistihninetaatdanndacaaudaa passim National Trails System Act, 16 U.S.C. ee 5 Uniform Relocation Assistance and Real Estate Acquisition Act, 42 U.S.C. ENON ee enn Sern 10 General Railroad Right of Way Act of oo FS a ee eT passim Se IN I re re! l LEGISLATIVE MATERIALS Cong. Globe, 42nd Cong., 2d Sess. 1585 Te nidnsphiinsidenninneinniiaceahdindatmeasiiatt aia eee as 16 x TABLE OF AUTHORITIES—Continued Page I, ov ciccccasccuseacsnccescsscenenns 16-17 a a stishiseenodoosses 17 3 Cong. Rec. 1791 (1875) .......cccccccececcescecceececeseeseeees 17 OTHER AUTHORITIES Berger, Michael M., Supreme Bait & Switch: The Ripeness Ruse in Regula- tory Takings, 3 Wash. U.J.L. & Policy a cibanunnuannincanons 3 Berger, Michael M., Taking Sides on Takings Issues (Am. Bar Ass’n 2002) .................. 3 Berger, Michael M. & Kanner, Gideon, Thoughts on the White River Junction Manifesto: A Reply to the “Gang of Five's” Views on Just Compensation for Regulatory Taking of Property, 9 Loy. I ceunauueseniencncesnase 3 Black's Law Dictionary (2d ed. 1910)..................... 15 xl TABLE OF AUTHORITIES—Continued Blake, William G., The Law of Eminent Domain—A Fifty State Survey (Am. NIRA el Lac A, aie Ne a Ely, James W., The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed. 1998)................. Fields, Leshe A.. Colorado Eminent Do- Os i Fex, Cecilia, The Elements of Liability in a Trails Act Taking: A Guide to the Analvsis, 38 Ecol. L. Q. 673 (2011)............. Hamilton, John, Kansas Real Estate Practice And Procedure Handbook NT aniccaiisnisaiuaimiatamiiia iene ninenauiisetnieninaiinnen Hamilton, John & Rapp, David M., Law And Procedure of Eminent Domain in the 50 States (Am. Bar Ass'n 2010)........... Kanner, Gideon, Making Laws and Sau- sages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill ls Gs I viittidetntiethd ictadradavadaiidanindgi Page nian 3 sisted 3 mbesinialies 3 inanbnaiible 3 xl TABLE OF AUTHORITIES— Continued Klinger, Friedrich Maximilian, Der Wirrwarr, oder Sturm und Drang Se Se icncindsciineninansisiniepaiiniidtieniiinleaiadgaaaiintinscninlih Litigation and Its Effect on the Rails-to- Trails Program: Hearing Before the Subcommittee on Commercial and Ad- ministrative Law of the House Commit- tee on the Judiciary, 107th Cong. (June Ss EE niiclindnindnduincnensusdsmnsatininpntedesmeicnmeabune Merriam, Dwight H., Eminent Domain Use and Abuse: Kelo in Context (Am. RETR RS a DSR ne rare Ree Millis, Henry E. & Abbott, Augustus L., Mills on the Law of Eminent Domain Fe rcthdsndenunminnapinnteteaendiinsmnnsnentioninsonpiuitiniis Rikon, Michael, Moving the Cat into the Hat: The Pursuit of Fairness in Con- demnation, or, Whatever Happened to Creating a “Partnership of Planning?” 4 Alb. Gov't L, Rev. 154 (2011)...........0.00.... Page pduaniiias 7 xl TABLE OF AUTHORITIES—Continued Page Roberts, Darwin P., The Legal History of Federally Granted Railroad Rights Of Way and the Myth of Congress's “1871 Shift”, 82 U. Colo. L. Rev. 85 (2011) .................. 11 Smith, Randall A.. Eminent Domain After Kelo and Katrina, 53 La. Bar J. 363 SREB CTR ar A ee. APE Na Bi ee nee PN Nt oe co rE 3 INTEREST OF THE AMICUS CURIAE Owners’ Counsel of America (OCA) is a national. invitation-only network of the most experenced eminent domain and property mghts attorneys.' They have joined together to advance, preserve and defend the rights of private property owners and thereby further the cause of liberty, because the right to own and use property is “the guardian of every other right,” and the basis of a free society. See James W. Ely, The Guardian of Every Other Right: A Constitu- tional History of Property Rights (2d ed. 1998). As the lawyers on the front lines of property law and proper- ty rights, OCA members understand the importance of the issues in this case, and how redefinition of “easement” to “implied reversionary interest’—a decision which exacerbates the lower court split—will eliminate an entire class of rails-to-trails takings claims. This has resulted in the rights of owners whose property interests are based on grants subject to the General Railroad Right of Way Act of 1875, 43 U.S.C. § 934 (1875 Act) varying depending on the federal circuit in which their land happens to be located. If left unreviewed by this Court. the Tenth Circuit's decision will undermine well-settled expecta- 1. Pursuant to this Court's Rule 37.2(a), all parties have consented to the filing of this brief. Counsel of record for all parties received notice at least 10 days prior to the due date of the Amicus Curiae’s intention to file this bref. Letters evidenc- ing such consent have been filed with the Clerk of the Court. Pursuant to Rule 37.6, Amicus affirms that no counsel for any party authored this brief in whole or in part. and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus, its members, or its counsel made a monetary contribu- tion to its preparation or submission. 2 tions, and the common conception of what it means to own property subject to a right of way for railroad purposes. OCA brings unique expertise to this task. OCA is a non-profit 501(c)(6) organization sustained solely by its members. Only one member lawyer is admitted from each state. Since its founding, OCA has sought to use its members’ combined knowledge and experi- ence as a resource in the defense of private property ownership, and to make that opportunity available and effective to property owners nationwide. OCA member attorneys have been involved in landmark property law cases in nearly every jurisdiction na- tionwide. Additionally, OCA members and their firms have been counsel for a party or amicus in many of the property cases this Court has considered in the past forty years, including Preseault v. Inter- state Commerce Comm'n, 494 U.S. 1 (1990), and most recently Arkansas Game and Fish Comm'n v. United States, 133 S. Ct. 511 (2012), and Koontz v. St. Johns River Water Management District, No. 11-1447. 2. See also Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl Protection, 130 S. Ct. 2592 (2010); Winter v. Natural Resources Def. Council, 555 U.S. 7 (2008); Kelo v. City of New London, 545 U.S. 469 (2005); San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005); Lingle v. Chevron U'.S.A., Inc., 544 U.S. 528 (2005): Tahue-Sierra Pres. Council, Inc. v. Tahoe Regl Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode Island, 533 U.S. 606 (2001); City of Monterey v. Del Monte Dunes at Monterey, Lid., 526 U.S. 687 (1999); Dolan v. City of Tigard, 512 U.S. 374 (1994): Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Yee v. City of Escondido, 503 U.S. 519 (1992); Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987): First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987); Agins v. City of Tiburon, 447 U.S. 255 (1980); Kaiser Aetna v. United States, 444 U.S. 164 (1979). 3 OCA members have also authored and edited trea- tises, books, and law review articles on property law and property rights.* OCA believes its members’ long experience in advo- cating for property owners and protecting their constitutional mghts will provide an additional, valuable viewpoint on the issues presented to the Court. —+ 3. See, e.g.. Michael M. Berger, Taking Sides on Takings Issues (Am. Bar Ass'n 2002) (chapter on What's “Normal” About Plan- ning Delay’); Michael M. Berger, Supreme Bait & Switch: The Ripeness Ruse in Regulatory Takings, 3 Wash. U.J.L. & Policy 99 (2000); Michael M. Berger & Gideon Kanner, Thoughts on the White River Junction Manifesto: A Reply to the “Gang of Five's” Views on Just Compensation for Regulatory Taking of Property, 9 Loy. L.A.L. Rev. 685 (1986); William G. Blake, The Law of Eminent Domain—A Fifty State Survey (Am. Bar Assn 2012) (editor); Leshe A. Fields, Colorado Eminent Domain Practice (2008): John Hamilton, Kansas Real Estate Practice And Proce- dure Handbook (2009) (chapter on Eminent Domain Practice and Procedure); John Hamilton & David M. Rapp, Law And Proce- dure of Eminent Domain in the 50 States (Am. Bar Ass'n 2010) (Kansas chapter); Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective of Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rts. J. 679 (2005): Dwight H. Merriam, Eminent Domain Use and Abuse: Kelo in Context (Am. Bar Ass'n 2006) (coeditor); Michael Rikon. Moving the Cat into the Hat: The Pursuit uf Fairness in Condemnation, or, Whatever Happened to Creating a “Partnership of Planning?’. 4 Alb. Gov't L. Rev. 154 (2011); Randall A. Smith, Eminent Domain After Kelo and Katrina, 53 La. Bar J. 363 (2006); (chapters on Prelitigatuon Process and Flooding and Erosion). SUMMARY OF ARGUMENT Unable to prevail on a variety of theories in rails- to-trails takings cases in the Federal Circuit and the Court of Federal Claims (CFC) for more than a decade, the Government appears to have switched tracks. Instead of continuing its fruitless frontal attacks on these takings claims-—efforts that repeat- edly have been rebuffed by the courts—the Govern- ment in this case has sought to undermine the very notion of property by redefining the “rights of way” granted for railway uses under the 1875 Act from easements that are extinguished when no longer used for a railroad, to “implied reversionary inter- ests.” This brief makes two points. First, the Govern- ment’s strategy to redefine property rights based on the 1875 Act will virtually wipe out an entire class of takings claims without justification. Second, this Court's decision in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942)—holding that 1875 Act rights of way are ecasements—is supported by the common law definition of “right of way” prevailing at the time that the 1875 Act was adopted. In the absence of evidence of contrary intent, statutory terms used by Congress should be interpreted as having the meaning commonly assigned to them at the time. This case presents the Court with the opportunity to provide definitive guidance that terms in a federal statute that are not defined by Congress are not wholly malleable, and OCA respectfully asks this Court to review the important issues raised in the petition. a 5 ARGUMENT I. DERAILING 1875 ACT TAKINGS CASES The Government instituted this quiet title action as part of its apparent strategy to eliminate an entire class of rails-to-trails cases by securing a ruling that owners of land subject to 1875 Act rights of way do not own “property,” and thus cannot state a takings claim. In Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 (1990) (Preseault J), this Court sustained the federal rails-to-trails program‘ as a valid exercise of the federal commerce power, but concluded that converting an abandoned railroad right of way to trail use may “givie] rise to just compensation claims” under the Takings Clause. /d. at 13. Justices O'Connor, Scalia, and Kennedy elaborated, conclud- ing that the conversion to trail use “may delay prop- erty owners’ enjoyment of their reversionary inter- ests, but that delay burdens and defeats the property interest rather than suspends or defers the vesting of those property rights.” Jd. at 22 (O'Connor, J., con- curring). In the subsequent Tucker Act case, the Federal Circuit held the Government liable for com- pensation when recreational trail use exceeds the scope of the origina! railroad right of way. Preseault v. United States, 100 F.3d 1525, 1541 (Fed. Cir. 1996) (en banc) (Preseault lJ). That decision set out the elements of a rails-to-trails takings case: Under Preseault II, the determinative issues for takings liability are (1) who owns the strip of land involved, specifically, whether the railroad ac- quired only an easement or obtained a fee simple 4. National Trails System Act, 16 U.S.C. § 1241. et seq. 6 estate; (2) if the railroad acquired only an ease- ment, were the terms of the easement limited to use for railroad purposes, or did they include fu- ture use as a public recreational trail (scope of the easement); and (3) even if the grant of the rail- road's easement was broad enough to encompass a recreational trail, had this easement terminated prior to the alleged taking so that the property owner at the time held a fee simple unencum- bered by the easement (abandonment of the easement). Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1372-73 (Fed. Cir. 2009) (citing Preseault IJ, 100 F.3d at 1533). However, the Government refused to accept the situation and undertook an approach that recent- ly led the Federal Circuit to wonder aloud “exactly what this sturm und drang is about” in rails-to-trails cases. Evans v. United States, 694 F.3d 1377, 1381 & n.7 (Fed. Cir. 2012) (citing Friedrich Maximilian Klinger, Der Wirrwarr, oder Sturm und Drang (1776)). The court criticized the Government's bor- derline frivolous strategy: And even more puzzling is why the Government, after Bright was decided, pursued the course it chose in the district courts and in this appeal, secking with every possible argument—even if so thin as to border on the frivolous—to avoid acqui- escing in plaintiffs’ effort to have the district court judgments put aside and to proceed on the merits in the Court of Federal Claims. Evans, 694 F.3d at 1381 (citing Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010)). 7 This is not an isolated example of the “scorched earth” approach. In 2002 Congress held hearings into rails-to-trails takings cases, and directed the Gov- ernment to resolve these cases more quickly and more fairly than it had been. See Litigation and Its Effect on the Rails-to-Trails Program: Hearing Before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary, 107th Cong.June 20, 2002), available at http://commdocs.ho use.gov/committees/judiciary/hju80320.000/hju80320 _Of.htm. As described by a noted property owners’ lawyer in a recent law review article, “[i]n the first several years following the Preseault II decision, the Department of Justice (DOJ) continued to challenge the United States’ liability by recycling the unsuc- cessful argument it has made in Preseault LI.” Cecilia Fex, The Elements of Liability in a Trails Act Taking: A Guide to the Analysis, 38 Ecol. L. Q. 673, 675-76 & n.6 (2011) (citations omitted). The article continues: After losing several lability arguments, culminat- ing in a second Federal Circuit decision, Toews v. United States, the DOJ’s challenges to the gov- ernment’s hability subsided. Beginning around 2003, the DOJ started stipulating to liability—or waiving the issue—instead of pursuing challenges in the courts. But the reprieve was brief. The DOJ has resurrected its challenges to the government's liability in recent years. In an ap- parent coordinated litigation strategy, the DOJ now routinely raises arguments that the Federal Circuit previously rejected. Worse for the attor- neys and courts who do not typically deal with these Tucker Act cases, the DOJ advances these arguments without acknowledging the contrary 8 law that was established during its earlier at- tempts to escape the government's liability. The DOJ'’s strategy relies on the marginalization of Preseault IJ as purportedly being limited to the facts in that case, glancing over the fundamental principles laid out in Preseault J, and ignoring Toews altogether. Accordingly, by recycling the arguments it made in Preseault lI and Toews, the government persists in arguing in various guises that recreational use is no different from railroad use, or that railbanking is a “railroad purpose,” so that nothing was taken from the landowner when the right of way became a recreational trail. In arguing that hikers and bikers are the same as railroad locomotives, the government sweeps sev- eral decades of contrary law under the rug. Id. at 676 (citing Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004)). The courts have not been convinced, concluding it is “obvious,”® and that there is a “clear consensus” that trail use is “fundamental- ly different’® and “clearly different”’ than a railway. 5. Anna F. Nordhus Trust v. United States, 98 Fed. Cl. 331, 338 (2011) (“To state the obvious, removing tracks to establish recreational trails is not consistent with a railroad purpose, and cannot be regarded as incidental to the operation of trains.”). 6. Ellamae Phillips Co. v. United States, 99 Fed. Cl. 483, 487 (2011) (“There is clear consensus that recreational trail use is fundamentally different in nature than railroad use.”). 7. Ybanez v. United States, 98 Fed. Cl. 659 (2011) (“The origi- nal parties to railroad conveyances between 1887 and 1891 would not likely have contemplated use of the right-of-way as a recreational trail. Such a use would be ‘clearly different’ from railway operations.”). See also Biery v. United States, 99 Fed. Cl. 565, 576 (2011) (Indeed, a recreational trail is only viable where the operation of trains has ceased. As such, recreational 9 See also Howard v. United States, 964 N.E.2d 779. 780-81 (Ind. 2012) (under Indiana law, railbanking and interim trail use are not within scope of railway easements). Unsuccessful in rehashing the losing Preseault Il arguments on liability, the Government shifted to making the same argument in the context of calcu- lating just compensation, claiming that owners are entitled only to recover the value of the land encum- bered by a trail easement. This too was rejected by the CFC. See, e.g., Ingram v. United States, 105 Fed. Cl. 518, 530 (2012) (“The measure of just compensa- tion to the plaintiffs for the takings of plaintiffs property should capture the value of the reversionary interests in their ‘before taken’ condition, unencum- bered by the easements.”); Ybanez v. United States, 102 Fed. Cl. 82, 88 (2011) (“The measure of just compensation is the difference between the value of plaintiffs’ land unencumbered by a railroad ease- ment, and the value of plaintiffs’ land encumbered by a perpetual easement for’ recreational trail use.”); Rogers v. United States, 101 Fed. Cl. 287, 294 trail use is outside the scope of a railroad purpose easement.”); Capreal, Inc. v. United States, 99 Fed. Cl. 133, 145 (2011) (°A railroad .. has the primary purpose of transporting goods and people. The purpose of a recreational trail is fundamentally different. A bicycle trail does not exist to transport people but rather to allow the public to engage in recreation and enjoy the outdoors. The two uses are distinct and an easement for a recreational trail is not like in kind to an easement for rail- roads.”); Farmers Co-op. Co. v. United States, 98 Fed. Cl. 797, 804 (2011) (railway purposes “are distinct from. and incon- sistent with, use of the right-of-way as a recreational! trail”); Macy Elevator v. United States, 97 Fed. Cl. 708, 730 (2011) (“The taking arises because recreational trail use does not fall within the scope of the original railroad easement.”). 10 (2011) (measure of compensation is the difference between the land unencumbered by a railroad ease- ment, and the land encumbered by an easement for recreational trail use and railbanking); Raulerson v. United States, 99 Fed. Cl. 9, 12 (2011) (same). The most recent example of a pointless argument sur- faced in Ladd v. United States, No. 2012-5086, 2013 WL 1405871 (Fed. Cir. Apr. 9, 2013), in which the Federal Circuit soundly rejected the Government's argument the statute of limitations had started even though the government did not inform owners of the Notice of Interim Trail Use (NITU), the action trigger- ing the right to institute a claim. The government itself was unaware of the NITU, yet it claimed the owners should have been.* The present litigation must be viewed in light of these failed arguments, and the initial issue in rails- to-trails takings cases under Preseault IJ: if, as the Tenth Circuit concluded, property owners are deemed to not possess “property,” then their takings claims magically vanish. Preseault IJ, 100 F.3d at 1533. This issue turns on “the nature of the original conveyance that established the railroad’s right to operate a railroad on the property at issue.” Ellamae Phillips Co., 564 F.3d at 1373-74. See also Preseault 8. The Government's rails-to-trails strategy has also needless- ly increased the cost of resolving many of these cases, often bevond reason. For example, in Hash v. United States, No. 1:99- CV-00324-MHW, 2012 WL 1252624 (D. Idaho Apr. 13, 2012). the court awarded the plaintiffs $2.24 million in attorney's fees and costs under the Uniform Relocation Assistance and Real Estate Acquisition Act, 42 U.S.C. § 4601 et. seg. Which means that to secure an $883,312 just compensation award, it cost the plaintiffs more than two-and-a-half times that amount, and the tuxpayers even more. ll I, 494 U.S. at 21 (O'Connor, J., concurring) (“[djetermining what interest petitioners would have enjoyed under [state] law, in the absence of the ICC's recent actions, will establish whether petitioners possess the predicate property interest that must underlie any takings claim.”). In the Tenth Circuit, the court’s decision in this case has virtually swal- lowed up every rails-to-trails takings case where the property owners rights are based on a grant subject to the 1875 Act. This has continued the lower court split and results in similarly-situated landowners nationwide being subject to different federal rules, based only on the location of their land. See Darwin P. Roberts, The Legal History of Federally Granted Railroad Rights Of Way and the Myth of Congress's “1871 Shift”, 82 U. Colo. L. Rev. 85 (2011) (noting a split among the Federal, Seventh, Ninth, and Tenth Circuits). As the CFC noted: Since the Supreme Court's decision in Great Northern, cases have generally defined the right- of-way interest in 1875 Act as an easement. Un- fortunately, however, the Supreme Court, in Great Northern, and in subsequent cases, has not provided a more specific definition of the term “easement” in the 1875 Act context. Beres v. United States, 64 Fed. Cl. 403, 422 (2005) (footnote omitted). This case presents the opportuni- ty for the Court to do so. 12 Il. REVISING RIGHT OF WAY TO MEAN AN “IMPLIED” REVERSIONARY INTEREST FUNDAMENTALLY DEPARTS FROM ITS UNDERSTOOD MEANING The Tenth Circuit’s conclusion that the term “right of way” meant to signify the conveyance of a fee interest to the railroads with an implied right of reversion to the United States not only conflicts with this Court’s ruling in Great Northern, but is a fun- damental departure from the common law meaning of the term. Congress did not define “right of way” in the 1875 Act, but the prevailing understanding at the time of the 1875 Act in the federal courts was that a railroad right of way conveyed only an extin- guishable easement. Thus, in Southern Ry. Co. v. City of Memphis, 97 F. 819 (6th Cir. 1899), the court denied a railroad’s request to enjoin the city from removing its tracks because the “conditional ease- ment” granted (limiting use to cars drawn by horse or other animal) was impossible to enjoy, and the easement terminated. The court likened the situa- tion to an easement for a particular purpose, which “fajf that purpose cease to exist, or its enjoyment become impossible, the grant is at an end.” /d. at 822 (“Thus, where there was a reservation of a right of way over flats appurtenant to uplands, for water craft, to and from a dock or wharf, the easement was held to be extinguished by the subsequent construc- tion by the city of a public street between the plain- tiffs upland and the dock, which made access to the dock and deep water impossible.”). The common law understanding of “right of way” in state courts at the time of the adoption of the 1875 Act was the same, as illustrated by the decision of the Wisconsin Supreme 13 Court concluding that the term described an ease- ment, and not a fee or a reversionary interest: “Right of way,” in its strict meaning. is “the right of passage over another man’s ground,” and in its legal and generally accepted meaning, in refer- ence to a rail way, it is a mere easement in the lands of others, obtained by lawful condemnation to public use, or by purchase. It would be using the term in an unusual sense, by applying it to an absolute purchase of the fee-simple of lands to be used for a railway or any other kind of way. Williams v. Western Union Ry. Co., 5 N.W. 482, 484 (Wis. 1880) (emphasis original) (citing Henry E. Mills & Augustus L. Abbott, Mills on the Law of Eminent Domain § 110 (1879)). That understanding remains the same today, and many state courts have concluded that a railway right of way is an extin- guishable easement. For example, the Washington Supreme Court rejected the argument that a rail right-of-way is a “perpetual public easement,” and concluded that under Washington property law, it is an interest terminated when the railroad abandons a line: At common law, where a deed is construed to con- vey a right of way for railroad purposes only, up- on abandonment by the railroad of the right of way the land over which the right of way passes reverts to the reversionary interest holder free of the easement. Lawson v State, 730 P.2d 1308. 1311 (Wash. 1986). See also Pollnow v. State Dep't of Nat. Resources, 276 N.W.2d 738, 744 (Wis. 1979) (“We hold that the only interest the railroad gained in the right of way by 14 adverse possession was an easement.”); Michigan Dept of Nat. Resources v. Carmody-Lahti Real t's- tate, Inc., 699 N.W.2d. 272, 280 (Mich. 2005) (“As we recognized over seventy years ago in Quinn, a deed granting a right-of-way typically conveys an ease- ment, whereas a deed granting land itself is more appropriately characterized as conveying a fee or some other estate[.]”) (citing Quinn v. Pere Marquette Ry. Co., 239 N.W. 376 (Mich. 1931)). When the 1875 Act was adopted, easements were incorporeal hereditaments only. Although a railroad casement has been described as “more than an ordinary easement[,]” having the “attributes of the fee.” New Mexico v. U.S. Trust Co., 172 U.S. 171, 183 (1898), this did not alter a railroad right of way’'s fundamental nature as an easement. See id. (“The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad”) (quoting Smith v. Hall, 72 N.W. 427 (lowa 1897)). That a railroad easement may not be precisely the same as other easements does not alter the essential nature of the interest granted. As the Tenth Circuit noted in a case under a predecessor statute involving a rail- road right of way, a different term was used because unlike common law easements, railway rights of way were generally exclusive: For the purposes of this case, we are not im- pressed with the labels applied to the title of the railroads in their rights-of-way across the public lands of the United States. The concept of “lim- ited fee” was no doubt applied in Townsend be- cause under the common law an easement was an incorporeal hereditament which did not give an exclusive right of possession. With the expansion a 15 of the meaning of easement to include, so far as railroads are concerned, a right in perpetuity to exclusive use and possession the need for the “limited fee” label disappeared. Wyoming v. Udall, 379 F.2d 635, 640 (10th Cir.), cert. denied, 389 U.S. 985 (1967) (citing Northern Pac. Ry. Co. v. Townsend, 190 U.S. 267 (1903)).2 See also Black's Law Dictionary 408-09 (2d ed. 1910) (defin- ing easement as a “right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner’). In contrast, a “lim- ited fee” was understood to be “[a]n estate of inher- itance in lands, which is clogged or confined with some sort of condition or qualification.” Jd. at 487. To abrogate a common law principle, the statute must “speak directly” to the question addressed by the common law. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618. 625 (1978); Milwaukee v. Illinois, 451 U.S. 304, 315 (1981). The burden is on the party claiming that Congress changed a common law meaning to show “the legislature intended such a change.” Green v. Bock Laundry Machine Co., 490 U.S. 504, 521 (1989). The Government made no such showing here, and an examination of the legislative history of the 1875 Act reveals no Congressional intent to change the common meaning of “right of 9. Notably, the 1875 Act did not convey a completely exclusive right. Section 2 barred railroad companies whose rights of way passed through areas of limited access. such as canyons, passes. or defiles, from preventing any other railroad company from use and occupancy of these areas, or to impede other forms of transportation in the area needed for public accommodation. 43 U.S.C. § 935. 16 way. The 1875 Act was designed to obviate the need for Congress to adopt new legislation for each new railroad, by providing a general statute applicable to all future grants within the territories. 3 Cong. Rec. 404 (1875). By the time Congress considered Senate Bill 378, which became the 1875 Act, it had already ceased its earlier practice of issuing out-and-out land grants to railways. See Cong. Globe, 42nd Cong., 2d Sess. 1585 (1872) (resolving to discontinue the prac- tice of granting subsidies in public lands to rail- roads); Great Northern, 315 U.S. at 274 (“the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued”) (inter- nal quotations omitted); Wyoming v. Udall, 379 F.2d 635, 638 (10th Cir.) (From 1850 to 1871, “Congress subsidized railroad construction by lavish grants from the public domain. .. . In 1871, the policy changed and outright grants were discontinued.”), cert. denied, 389 U.S. 985 (1967). Thus, the Act granted railroads only “the right of way through the public lands of the United States” with certain attendant rights to take surface materials from “the public land adjacent to the line of said road” and use land adjacent to the line for appurtenant station- buildings, depots, and other improvements. See 43 U.S.C. § 934. Congress intended to grant only a limited interest to railroad operators. Discussing the bill, the chair for the Committee of Public Lands noted that during the preceding years, the committee had “been very conservative with regard to the appropriation of public lands to railroads|,]” that the committee had “endeavored to preserve the public lands for the benefit of actual settlers|[,]” and that “[a]ll our grants of public lands, therefore, have been narrowed down 17 to rights of way.” 3 Cong. Rec. 404 (1875) (remarks of Senator Townsend). See also 3 Cong. Rec. 1791 (1875) (Discussing a similar right of way grant to the Puyallup Valley Coal Company, Senator Sprague noted the bill “is merely to give the right of way for a railroad in Oregon .. . with the right to take material within the grant.” When asked if it was a land grant, answered “[njo land grant, not an acre.”). One of the major issues Congress grappled with was the issue of what, if any, control the Territories (and later- admitted States) would have over the railroads and the freight to be transported. Senator Hawley de- scribed the interests being granted: This bill does not propose to charter any corpora- tion... . What does it do? It simply and only gives the right of way. It merely grants to such railroad companies as may be chartered the right to lay their tracks and run their trains over the public lands; it does nothing more. This is all that can be got out of it by any possible construction. The simple right being given to locate a road and op- erate cars upon the track so located].] 3 Cong. Rec. 407 (1875) (remarks of Senator Haw- ley). Nothing in the discussions of the bill suggests that Congress intended to grant any form of fee interest or contemplated a possibility of reverter. In the absence of an express contrary definition or clear legislative history that reveals otherwise, terms used by Congress arising from the common law should be interpreted as carrying the same meaning. In drafting legislation, Congress is charged with knowing the existence and meaning of these terms. “Congress is understood to legislate against a back- ground of common law ... principles. Thus, where a 18 common-law principle is well established, the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” Astoria Federal Savings and Loan Associa- tion v. Solimino, 501 U.S. 104, 108 (1991) (citations omitted). Further, “[jJust as longstanding is the principle that ‘[s]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar princi- ples, except when a statutory purpose to the contrary is evident.” United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). In these cases, Congress “does not write upon a clean slate.” United States v. Texas, 507 U.S. at 434 (citing Astoria, 501 U.S. at 108). This principle is particularly appropriate where the use of the common law would be for “filling a gap left by Congress’ silence” as opposed to “rewriting rules that Congress has affirmatively and specifically enacted.” Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624 (1978). Altering the fundamental nature of well- established common law understandings should not be read into Congress’ mere silence. In Shaw v. Railroad Co., 101 U.S. 557, 565 (1880), this Court held “[njo statute is to be construed as altering the common law, farther than its words import. It 1s not to be construed as making any innovation upon the common law which it does not fairly express.” If changes such as the Tenth Circuit found here were intended by Congress, “surely the statute would have said something more.” Jd. Thus, changes to the fundamental, underlying nature of well-established terms cannot be read into Congress’ silence. Where Congress adds rights or conditions on 19 top of common law rights, these additions are to be read narrowly and not to cause other changes un- addressed in the legislation. In the 1875 Act, Con- gress granted a special type of easement allowing railroads to use land as long as they operated a railway. When that use ceased, the land would become the property of the owner of the underlying tract. Congress did not grant the railroads a fee interest subject to the Government’s implied rever- sion that would spring forth over a century later to wipe out a property owner's right to compensation. +> CONCLUSION For the foregoing reasons, this Court should grant certiorari to review the Tenth Circuit's judgment. Respectfully submitted. ROBERT H. THOMAS Counsel of Record MARK M. MURAKAMI BETHANY C.K. ACE Damon Key Leong Kupchak Hastert 1003 Bishop Street, 16th Floor Honolulu, Hawai 96813 (808) 531-8031 rht@hawaulawyer.com Counsel for Amicus Curiae APRIL 2013. BRIEF FILED 1 2013 No. 12-1173 LU QFEKE OF THE On seme | In the Supreme Court of the Anited States ~~ MARVIN M. BRANDT REVOCABLE TRUST, et al., Petitioners, We UNITED STATES, Respondent. ~ On Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit + BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI + BRIAN T. HODGES PAUL J. BEARD, II Counsel of Record Pacific Legal Foundation Pacific Legal Foundation 930 G Street 10940 33rd Place, Suite 210 Sacramento, California 95814 Bellevue, Washington 98004 Telephone: (916) 419-7111 Telephone: (425) 576-0484 Facsimile: (916) 419-7747 Facsimile: (425) 576-9565 E-mail: pjbepacificlegal org E-mail: bth@pacificlegal.org Counsel for Amicus Curtae Pacific Legal Foundation 1 QUESTION PRESENTED This case involves the General Railroad Right-of-Way Act of 1875 (1875 Act), under which thousands of miles of rights-of-way were established across the United States. In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), this Court held that the 1875 Act rights-of-way are easements and not limited fees with an implied reversionary interest. Based upon the 1875 Act and this Court's decisions, the Federal and Seventh Circuits have concluded that the United States did not retain an implied reversionary interest in 1875 Act rights-of-way after the underlying lands were patented into private ownership. In this case, the Tenth Circuit reached the opposite conclusion and acknowledged that its decision would continue a circuit split. The question presented Is: Did the United States retain an implied reversionary interest in 1875 Act rights-of-way after the underlying lands were patented into private ownership? ll TABLE OF CONTENTS Page QUESTION PRESENTED. .................. i TABLE OF AUTHORITIES .................. ili INTEREST OF AMICUS CURIAE.............. 1 INTRODUCTION AND SUMMARY OF REASONS FOR GRANTING THE WRIT .... REASONS WHY CERTIORARI SHOULD BE Joel Sea iene oe eae e oS 4 I. THE TENTH CIRCUIT'S DECISION IS INCONSISTENT WITH THE COMMON LAW OF PROPERTY OWNERSHIP ........ 4 A. Property Rights Created by Federal Land Grants Are Determined in Accordance with the Common Law ..... 4 bo B. Disputes over Ownership of Abandoned Railroad Rights-of-Way Are Determined by Rehance on Common Law Principles .............. 7 C. The Tenth Circuit’s Rule Repudiates ec on od we 8 le 10 Il. THE TENTH CIRCUIT'S PER SE RULE THREATENS THE CERTAINTY AND STABILITY OF TITLE....... CONCLUSION 15 i = oo je Wy ie by we Qk ae oy oe Ae ek A oe Ae ek ee i ae oe ee oe ill TABLE OF AUTHORITIES Page Cases Arkansas Game & Fish Comm'n v. United States, ef Se ia k |) Pee ree eee! 3 Beres v. United States, 3, Se [| ‘eee 13-14 Board of County Sup Ts of Prince William County, Va. v. United States, 48 F.3d 520 i.) Bk er re rs i) Boesche v. Udall, 373 U.S. 472 (1963) .......... 10 Brown v. Washington, 924 P.2d 908 a re ik Carney v. Board of County Commissioners of Sublette County, 757 P.2d 556 (Wyo. 1988) ............ — | City of Monterey v. Del Monte Dunes at Monterey, Lid... GBB U.B. GBT CRG jw ce tte | Ellamae Phillips Co. v. United States, 564 F.3d 1367 (Fed. Cir. 2009) .........0~«22 0... 7 Energy Transp. System Inc. v. Union Pac. R.R. Co., 619 F.2d 696 (8th Cir. 1980) ....... 10 Great Northern Ry. Co. v. United States, BES U.. BE CRG cg cc vec nesccusses .. 6-3 Hash v. United States, 403 F.3d 1308 io B® ere see 3, 7,9. 10, 13 Iron Silver Min. Co. v. Elgin Min. & Smelting Co.., SEG Gy. Dee Cee = sv wk oe os eee eee 13 1V TABLE OF AUTHORITIES—Continued Page Koontz v. St. Johns River Water Management District, (U.S. Supreme Court No. 11-1447) ....1 Leo Sheep Co. v. United States, CE 10,13 Lessee of Irwin H. Doolittle’s Lessee v. Bryan, 55 U.S. 563 (1852). ; ; ee 13 Louts W. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762 (3d Cir. 1994) ......... atte Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028 (10th Cir. 1994) ............ 10-11 Moore v. Robbins, 96 U.S. 530 (1877)... 2.200... 14 Mount Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480 (10th Cir. 1998) ............... & Nollan v. California Coastal Comm'n, er l Northern Pac. Ry. Co. v. Townsend, TT fw eee wee ees 7,9 Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ... 1 Preseault v. Interstate Commerce Comm'n, TE a i 2 Preseault v. United States, 100 F.3d 1525 Ct wee eee eees 2,4, 7-9 Railroad Co. v. Baldwin, 103 U.S. 426 (1880) .... 10 Smith v. Townsend, 148 U.S. 490 (1893) ......... 5 Vv TABLE OF AUTHORITIES—Continued Page State of Idaho v. Oregon Short Line Railroad Co., 617 F. Supp. 207 EE Peep re Suitum v. Tahoe Regi Planning Agency, ee GE SE o's sb ete ee es ee ae 1 Toews v. United States, 376 F.3d 1371 SG at eae ce eo ee a ae 7 Wilcox v. Jackson, 38 U.S. 498 (1839) .......... 13 Administrative Decisions Brucker v. Buschmann, 21 Pub. Land Dec. 114 SED oo & hc oie ate Ss eb Lee EE eee oe 6 Eugene McCarthy, 14 Pub. Land Dec. 105 (1892) ................. 7 Fremont, Elkhorn and Missouri Valley Ry. Co., 19 Pub. Lands Dec. 588 (1894) ................. 6 John W. Wehn, 32 Pub. Land Dec. 33 (1903) .. .. 6 Mary G. Arnett, 20 Pub. Land Dec. 131 (1895)... 6 Pensacola & Louisville R.R. Co., 19 Pub. Land Dec. 386 (1894) ................ 6 State of Wyoming, 27 IBLA 137 (1976) .......... S Federal Statutes Federal Land Policy and Management Act of 1976, 43 U.S. G UFR, OOOO. ne ce ccc cee: 14 General Railroad Right-of-Way Act of 1875, 18 Stat. 482, 43 U.S.C. § 934, et seg. .. .. 2, 4-7, 11 v1 TABLE OF AUTHORITIES—Continued Page tod 2 ao kT) i a et 14 Rule of Court io ee OE ge TA et eee ene ee. lal ee ae we l Miscellaneous Cunningham, Roger, et al., The Law of Property (2d ed. 1993) Fex, Ceciha, The Elements of Liability in a Trails Act Taking: A Guide to the Analysis, ee ey Bane, Drm GORD «ce os 6 och ebay tee 7 Hirakawa, Gregg H., Preserving Transportation Corridors for the Future: Another Look at Railroad Deeds in Washington State, 25 Seattle U. L. Rev. 481 (2001) 11 Powell on Real Property § 78A ............ 3,12 Roberts, Darwin P., The Legal History of Federally Granted Railroad Rights-of-Way and the Myth of Congress's “1871 Shift’, ¢ Be ee Sl, | ee ee 12 Simes, L. M., Law of Future Interests (2d ed. 1966) Smith, Chester H., & Boyer, Ralph E., Survey of the Law of Property (2d ed. 1971) ............. 8 1] Tiffany, Real Property § 220 (3d ed. 1939) vil TABLE OF AUTHORITIES—Continued Page Wright, Danaya C., The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History: Hash v. United States and the Threat to Rail-Trail Conversions, ee as ee Eo. us os 3 os 3 506 wo @ 0b 6 0084 12 1 INTEREST OF AMICUS CURIAE Pursuant to Supreme Court Rule 37.2(a), Pacific Legal Foundation submits this bnef amicus curiae in support of Petitioners Marvin M. Brandt Revocable Trust and Marvin M. Brandt (Brandt).’ Pacific Legal Foundation (PLF) was founded 40 years ago and is widely recognized as the largest and most experienced nonprofit legal foundation of its kind. PLF attorneys litigate matters affecting the public interest at all levels of state and federal courts and represent the views of thousands of supporters nationwide who believe in hmited government and private property rights. PLF attorneys have participated as lead counsel or amicus curiae 1n several cases before this Court in defense of the right of individuals to make reasonable use of their property, and the corollary right to obtain just compensation when that right is infringed. See, e.g., Koontz v. St. Johns River Water Management District (U.S. Supreme Court No. 11-1447); Arkansas Game & Fish Comm'n vu. United States, 133 S. Ct. 511 (2012); Palazzolo uv. Rhode Island, 533 U.S. 606 (2001); City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999); Suitum v. Tahoe Regi Planning Agency, 520 U.S. 725 (1997); Nollan v. California Coastal Comm'n, ' All parties have consented to the filing of this bmef. Counsel of record for all parties received notice at least 10 days prior to the due date of Amicus Curiae’s intention to file this bref. Letters evidencing such consent have been filed with the Clerk of the Court. No counsel for any party authored this brief in whole or in part and no person or entity made a monetary contribution specifically for the preparation or submission of this brief. No person other than Amicus Curiae, its members, or its counse! made a monetary contribution to its preparation or submission. 9 483 U.S. 825 (1987). PLF attorneys are familiar with the issues surrounding the government's policy of converting abandoned railroad tracks to recreational trails, having participated as amicus curiae in Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 (1990). Because of its history and experience with regard to issues affecting private property, PLF believes that its perspective will aid this Court in considering Brandt's petition. INTRODUCTION AND SUMMARY OF REASONS FOR GRANTING THE WRIT This case raises important questions regarding the common law of property ownership and the certainty of titles in property. Brandt owns a parcel of property in fee simple. Pet. at 11-12. An abandoned railroad right-of-way easement, established under the General Railroad Right-of-Way Act of 1875 (1875 Act), traverses his land. Jd. According to the common law, the railroad easement was extinguished upon its abandonment and Brandt owns his land unencumbered by the right-of-way. Preseault v. United States, 100 F.3d 1525, 1545 (Fed. Cir. 1996); Carney v. Board of County Commissioners of Sublette County, 757 P.2d 556, 562-63 (Wyo. 1988). The Tenth Circuit, however, adopted a new rule of federal property law, holding that the United States—the original grantor of the railroad easement and Brandt’s fee estate—held an impled reversionary interest in the easement, even though the government had patented the underlying property and sold the land without a reservation of reversionary rights. Pet. Cert. App. at 3-6, 18-21, 26. As fully set out in the Petition, the Tenth Circuit's rule directly conflicts with decisions of this Court as well as decisions from the Federal Circuit, the Court of 3 Federal Claims, and the Seventh Circuit. Pet. at 17-34. The spht of authority regarding ownership of abandoned railroad rights-of-way has been growing for years, and is well-documented. See, e.g., Pet. Cert. App. at 5-6, 22-24 (discussing split of authority); Hash v. United States, 403 F.3d 1308, 1318 (Fed. Civ. 2005) (same); 11 Powell on Real Property § 78A (referring to the existing split of authority as a “mess [that] is not entirely fixed” and in need of “thorough analysis”); Roger Cunningham, et al., The Law of Property § 8.9, p. 460 (2d ed. 1993) (decisions concerning railroad rights-of-way “are in considerable disarray’). Amicus PLF urges the Court to grant the Petition to resolve this conflict, especially because the Tenth Circuit's rule departs from ordinary understandings of property ownership. Specifically, the Tenth Circuit altered the common law definitions of easements and freehold estates by holding that the common law of property categorically does not apply to disputes over ownership of railroad easements. Pet. Cert. App. at 5 (citing Idaho v. Oregon Short Line Railroad Co., 617 F. Supp. 207, 212 (D. Idaho, 1985)). See Arkansas Game & Fish Comm'n v. United States, 133 S. Ct. 511, 518 (2012) (disapproving of categorical rules that reduce property rights). The Tenth Circuit's rule deprives property owners of their right to exclusive ownership of their land. If left unreviewed, the decision below will unsettle the mghts and expectations of thousands of property owners within the Circuit and nationwide. See, e.g., Brown v. Washington, 924 P.2d 908, 916 (Wash. 1996) (relying on federal precedent to determine ownership of abandoned railroad easements). PLF, therefore, urges this Court to grant the Petition to reaffirm the common law principle that ownership of land is determined by title. 4 REASONS WHY CERTIORARI SHOULD BE GRANTED I THE TENTH CIRCUIT’S DECISION IS INCONSISTENT WITH THE COMMON LAW OF PROPERTY OWNERSHIP The property interest at issue in this case is a fee holder's right to reclaim exclusive ownership of lands underlying an abandoned easement that traverses his land. That right is well-recognized by the common law of property. Preseault, 100 F.3d at 1542-46; Carney, 757 P.2d at 562-63. The Tenth Circuit, however, adopted a per se rule that grants the federal government ownership of a fee holder’s reversionary interest in an abandoned railroad easement, and consequently refused to consider Brandt's common law property rights to determine ownership of the abandoned easement. Pet. Cert. App. at 5-6. A. Property Rights Created by Federal Land Grants Are Determined in Accordance with the Common Law The Tenth Circuit’s repudiation of the common law is fundamentally at odds with decisions of this Court and other courts that have relied on the common law to define property interests in railroad right-of-way cases. Indeed, the common law guided this Court in construing the 1875 Act. In Great Northern Railway Company v. United States, 315 U.S. 262 (1942), this Court considered whether the 1875 Act conveyed railroad rights-of-way as easements or as limited fees. This Court determined that Congress’ use of the phrase “right of way” in the statute was intended only to create an easement because that phrase was +) consistent with the common law understanding of easements and was wholly inconsistent with the rights associated with fee estates. Jd. at 271 (“The Act of March 3, 1875...clearly grants only an easement, and not a fee.”). This Court also relied on the common law to determine the property rights acquired in patented lands that are burdened by a right-of-way easement. Smith v. Townsend, 148 U.S. 490, 499 (1893) (“Doubtless whoever obtained title from the government to any quarter section of land through which ran this right of way would acquire a fee to the whole tract, subject to the easement of the company; and if ever the use of that right of way was abandoned by the railroad company, the easement would cease, and the full title to that right of way would vest in the patentee of the land.”). In fact, early administrative land decisions viewed railroad rights-of-way as common law easements, and relied on common law principles to define the nature and scope of federal land grants when the property is traversed by a railroad right-of-way. For example, an 1888 decision instructed that patentees must pay for the full area purchased with no deduction for the right-of-way easement because the patentee was taking title to the entire tract, including the land underlying the easement: The act of March 3, 1875, is not in the nature of a grant of lands; it does not convey an estate in fee .... All persons settling on public lands to which a railroad right of way has attached, take the same subject to such right of way and must pay for the full area of 6 subdivision entered, there being no authority to make deductions in such cases. Great Northern, 315 U.S. at 275 n.13 (quoting 12 L.D. 423, 428 (Jan. 13, 1888)). Many other decisions from that period apply common law principles to resolve disputes concerning railroad rights-of-way.” See, e.g., John W. Wehn, 32 Pub. Land Dec. 33, 34 (1903) (noting that the rights-of-way granted under the 1875 and 1891 Acts were mere easements and that the applicant who purchased land over which they passed would therefore be required to pay for the entire tract); Brucker v. Buschmann, 21 Pub. Land Dec. 114, 115 (1895) (finding railroad right-of-way does not diminish the acreage held in fee by the homesteader); Mary G. Arnett, 20 Pub. Land Dec. 131, 132 (1895) (A grant under the 1875 Act conveyed “an easement and not the land.”); Pensacola & Louisville R.R. Co., 19 Pub. Land Dec. 386, 388 (1894) (holding that “lands across which a right-of-way is claimed by a railroad company [under federal land grants] may be disposed of by patent” and that the “patentees will take the servient tenement, subject to whatever servitude may exist, and they will find ample protection in the courts, should any attempt be made to deprive them of the use or occupancy of their land”); Fremont, Elkhorn and Missouri Valley Ry. Co., 19 Pub. Lands Dec. 588, 599 (1894) (“That the right of way granted by the [1875] act in question is a mere casement can not be questioned, for the fourth section provides that ‘thereafter all such lands, over which such right of way shall pass, shall be disposed of subject to the right of way.’”); Eugene McCarthy, 14 ' Public Land Decisions are administrative orders issued between 1881 and 1929 by the U.S. Department of Interior and General Lands Office in cases relating to public lands. 7 Pub. Land Dec. 105, 110 (1892) (title to mineral claim would become unrestricted upon abandonment of federal land grant right-of-way); Right of Way, 12 Pub. Land Dec. 423, 428 (1891) (under the 1875 Act, settlers take the full tract of land that is subject to the right-of-way). Simply put, the common law understandings of easements and freehold estates defined the character of property interests conveyed in federal land grants and patents. B. Disputes over Ownership of Abandoned Railroad Rights-of-Way Are Determined by Reliance on Common Law Principles The Tenth Circuit's rule also conflicts with the Federal Circuit’s reliance on the common law to determine whether a landowner has a _ protected property interest in an abandoned right-of-way. See, e.g., Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009); Hash, 403 F.3d at 1314; Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004); Preseault, 100 F.3d at 1533. Determining the character of a right-of-way is a necessary step before deciding ownership of the land because not all railroad rights-of-way involve the same property interest. See Cecilia Fex, The Elements of Liability in a Trails Act Taking: A Guide to the Analysis, 38 Ecology L.Q. 673, 686-89 (2011). At certain times in history, the federal government granted the _ railroad companies rights-of-way as limited fee estates. See, e.g., Great Northern, 315 U.S. at 273-74; Northern Pac. Ry. Co. v. Townsend, 190 U.S. 267, 271 (1903). At other times, the government granted the railroad companies rights-of-way as easements. Great Northern, 315 U.S. 8 at 271. The type of right-of-way owned by a railroad depends upon the specific terms and conditions of the original conveyance, which, in turn, relies on common law understandings of easements and fee estates. /d. At common law, there is a stark difference between a limited fee and an easement. A grant of a limited fee estate (also known as a fee simple determinable, base fee, or qualified fee) creates a fee simple subject to a special limitation, such as a requirement that the property be used only for railroad purposes. Mount Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480, 485 (10th Cir. 1998) (citing Chester H. Smith & Ralph E. Boyer, Survey of the Law of Property 8 (2d ed. 1971)); see also State of Wyoming, 27 IBLA 137, 164 (1976) (Chief Administrative Judge Frishberg, dissenting) (citing L. M. Simes, Law of Future Interests 28-29 (2d ed. 1966)). Upon the occurrence of the special limitation, the fee estate automatically terminates and the property reverts to the grantor or his successors in interest. Mount Olivet Cemetery, 164 F.3d at 485; State of Wyoming, 27 IBLA at 164 (citing Simes, supra; 1 Tiffany, Real Property § 220 (3d ed. 1939)).* But, until the condition for reverter is triggered, the owner of the limited fee is considered the “absolute owner of the land.” Choctaw O. & G. R.R. Co. v. Mackey, 256 U.S. 531, 538-39 (1921). A conveyance of an easement transfers no ownership in the underlying land to the holder of the right-of-way. Preseault, 100 F.3d at 1542; see also Louis W. Epstein Family Partnership v. Kmart Corp., * The Interior Board of Land Appeals reviews decisions of departmental administrative judges concerning public lands. 9 13 F.3d 762, 766 (3d Cir. 1994) (“[T]he owner of land. who grants a right of way over it, conveys nothing but the right of passage and reserves all incidents of ownership not granted.”); Board of County Sup'rs of Prince William County, Va. v. United States, 48 F.3d 520, 527 (Fed. Cir. 1995) (“[A] fee simple estate is not an easement, or vice versa.”). Instead, an easement creates a servitude on the land that grants the holder “a right to make use of the land over which the easement lies for the purposes for which it was granted.” Preseault, 100 F.3d at 1545 (citing 7 Thompson on Real Property § 60.02(c), (d)). And when the easement is abandoned, the easement is extinguished and the underlying fee becomes unburdened. Preseault, 100 F.3d at 1545; Carney, 757 P.2d at 562-63. According to those common law principles, ownership of an abandoned right-of-way depends on the character of the right-of-way. Where the railroad acquired a fee interest in the right-of-way, title no longer remained in the United States. Northern Pacific, 190 U.S. at 270. The federal government held a possibility of a reverter (by operation of the special limitation in the grant), but the land itself belonged to the railroad company. J/d. at 271. Therefore, a subsequent grant of the surrounding property could not transfer title to the land underlying the right-of-way. Jd. at 270. And the owner of the surrounding lands did not acquire a reversionary interest in the railroad right-of-way. However, where the _ railroad acquired a right-of-way easement, title to the underlying property remained in the United States. Hash, 403 F.3d at 1314. Thus, a subsequent patent of the property 10 conveyed the entire tract, including the easement and the reversionary interest therein, to the patentee. Railroad Co. v. Baldwin, 103 U.S. 426, 430 (1880); Energy Transp. System Inc. v. Union Pac. R.R. Co., 619 F.2d 696, 698-99 (8th Cir. 1980) (ruling servient estate to railway grant passed when state acquired federal lands); see also Boesche v. Udall, 373 U.S. 472, 477 (1963) (a land patent “divests the government of title”). The government grantor cannot retain an implied reversionary interest in an abandoned easement located on private property without effecting an uncompensated taking of the fee holder’s property rights. See, e.g., Leo Sheep Co. v. United States, 440 U.S. 668, 678-79 (1979); Hash, 403 F.3d at 1318 (“|PJroperty rights that are not explicitly reserved by the grantor cannot be inferred to have been retained.”). Thus, it is essential to determine the common law character of the right-of-way before a court can decide who owns the reversionary rights in the land. C. The Tenth Circuit’s Rule Repudiates the Common Law The Tenth Circuit's decision creates so many conflicts with other decisions because it adopts a categorical rule that (1) changes the definition of an easement and (2) holds that the common law of property does not apply to disputes over ownership of abandoned railroad easements. Pet. Cert. App. at 5-6. As shown above, the Tenth Circuit’s rule finds no support in this Court’s case law. Instead, the Tenth Circuit created its rule by elevating a poorly reasoned trial court opinion to the status of binding Circuit precedent. Pet. Cert. App. at 5 (citing Oregon Short Line Railroad, 617 F. Supp. at 212; see also Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028, 1] 1030-32 (10th Cir. 1994) (adopting the “result and rationale” of Oregon Short Line)). Oregon Short Line isa summary judgment opinion resolving a dispute over ownership of an abandoned right-of-way easement. 617 F. Supp. at 208-09. Key to the dispute was whether the federal government held an implied reversionary interest in the easement. /d. at 209, 211-12. Although an implied reversionary interest is not recognized by the common law, the Idaho federal district court ruled that the federal government could create a new property interest. Jd. at 211-12. The trial court explained that the government, in authorizing grants for right-of-way easements, had the authority to “pre-empt or override common-law rules regarding easements, reversions, or other traditional real property interests” in order to create an “imphed condition of reverter” on all such conveyances. (‘d. at 212. Because of that, the court refused to consider the common law rules regarding easements, holding instead that the “precise nature of [the] retained interest need not be shoe-horned into any specific category cognizable under the rules of real property law.” Jd. Thus, the trial court concluded that the federal government, in enacting the 1875 Act, had implicitly suspended the common law and had impliedly reserved a reversionary interest in all railroad right-of-way easements. /d. The Tenth Cuircuit’s decision to adopt the reasoning of Oregon Short Line as a per se rule of federal property law threatens our common law system of property ownership. Indeed, legal scholars recognize that the conflict between the Tenth Circuit and the Federal Circuit engenders a “fundamental contradiction” in the law of property. 11 Powell on 12 Real Property § 78A. Even scholars who support the modern rails-to-trails policy acknowledge that Oregon Short Line created a property interest that is neither recognized nor bound by common law principles. Danaya C. Wright, The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History: Hash v. United States and the Threat to Rail-Trail Conversions, 38 Envtl. L. 711, 731-32 (2008) (Oregon Short Line corrected Congress’ “unfortunate use of the term ‘easement’” by overriding the common law rules.); Gregg H. Huirakawa, Preserving Transportation Corridors for the Future: Another Look at Railroad Deeds in Washington State, 25 Seattle U. L. Rev. 481, 504 (2001) (“Since federal ‘easements’ on public land are granted by Congress, the easements are subject to Congressional desires rather than common law.”); Darwin P. Roberts, The Legal History of Federally Granted Railroad Rights-of-Way and the Myth of Congress's “1871 Shift”. 82 U. Colo. L. Rev. 85, 101 (2011) (Since railroad easements are not bound by the common law in the Tenth Circuit, courts can alter the language of a federal land grant to advance modern government interests such as the rails-to-trails policy.). Landowners deserve to have their property rights determined by the title they hold in their land, not by a court-created per se rule. The Tenth Circuit's decision to the contrary raises important questions of property law and warrants review by this Court. 13 II THE TENTH CIRCUIT'S PER SE RULE THREATENS THE CERTAINTY AND STABILITY OF TITLE The consequences of the Tenth Circuit’s decision are far-reaching. Landowners rely on their titles to establish ownership of property. But if courts are unwilling to give effect to titles, the owners’ interests and expectations in their property become potentially worthless. Accordingly, this Court has a long-standing policy of avoiding rules or constructions that unsettle titles. Leo Sheep, 440 U.S. at 687 (“This Court has traditionally recognized the special need for certainty and predictability where land titles are concerned|.]”) (citing Iron Silver Min. Co. v. Elgin Min. & Smelting Co., 118 U.S. 196, 206-07 (1886); Lessee of Irwin H. Doolittle’s Lessee v. Bryan, 55 U.S. 563, 567 (1852)); see also Beres v. United States, 64 Fed. Cl. 403, 427 (2005) (“A fundamental precept of our property ownership system and system of laws includes certainty of ownership upon purchase, whether by receipt of a land patent from the federal government or a deed from a private party.”). This case provides a good example of the nghts threatened by the Tenth Circuit’s decision. Brandt's parents acquired title in fee simple to property traversed by an abandoned railroad easement. Pet. at 10-11. It is well-recognized that a federal land patent passes “a perfect and consummate title” to the owner. Wilcox v. Jackson, 38 U.S. 498, 516 (1839); Hash, 403 F.3d at 1314-15 (A patent “‘conveys the fee simple title in the land over which the right-of-way is granted to the person to whom patent issues .. . such patentee takes the fee subject only to the railroad company’s 14 right of use and possession’.”) (quoting 43 C.F.R. 243.2 (1909) (repealed by the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701, et segq.)). Once a parcel is patented and sold as private property, the federal government “is absolutely without authority” to alter the property interests transferred. Moore v. Robbins, 96 U.S. 530, 533 (1877). Because the federal government did not reserve any reversionary rights in the railroad easement when it sold its property, Brandt has a common law right to exclusive ownership of the land underlying the abandoned right-of-way. The Tenth Circuit's decision, however, repudiates those common law principles and authorizes the government to take some of the property back decades after the land was sold. Under the lower court's rule, “titles derived from the United States, instead of being the safe and assured evidences of ownership which they are generally supposed to be, [are] subject to the fluctuating, and in many cases unreliable, action of the [government].” Moore, 96 U.S. at 533. The Tenth Circuit's decision is contrary to policies underlying our property system and warrants review. Beres, 64 Fed. Cl. at 427 (“The average citizen, the reasonable man, expects that a contract to transfer land, whether from a public or private owner, is effective and will not be retroactively changed many years after the land transfer.”). 15 a CONCLUSION The Tenth Circuit’s repudiation of the common law rights inherent in fee simple title creates a conflict that, by itself, warrants certiorari. But the need for this Court’s review is heightened by the fact that the lower court adopted a harmful rule that has the capacity to unsettle the expectations of property owners across the Nation. This Court should grant Brandt’s petition. DATED: April, 2013. Respectfully submitted, BRIAN T. HODGES PAUL J. BEARD, I] Counsel of Record Pacific Legal Foundation Pacific Legal Foundation 930 G Street 10940 33rd Place, Suite 210 Sacramento, California 95814 Bellevue, Washington 98004 Telephone: (916) 419-7111 Telephone: (425) 576-0484 Facsimile: (916) 419-7747 Facsimile: (425) 576-9565 E-mail: pyb@’pacificlegal.org E-mail: bthwpacificlegal.org Counsel for Amicus Curiae Pacific Legal Foundation JOINT APPENDIA [Supreme Coun US. —] RECC™” —_ AN:) No. 12-1173 NOV | 5 2013 BRIEFS 7 LOPFICE OF THE cura | In The Supreme Court of the Anited States e MARVIN M. BRANDT REVOCABLE TRUST AND MARVIN M. BRANDT, TRUSTEE, Petitioners, v. UNITED STATES OF AMERICA, Respondent. 7 On Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit . JOINT APPENDIX ° STEVEN J. LECHNER, ESQ. DONALD B. VERRILLI, JR. Counsel of Record Solicitor General JEFFREY W. McCoy, Esq. DEPARTMENT OF JUSTICE MOUNTAIN STATES Washington, D.C. 20530 LEGAL FOUNDATION (202) 514-2217 2596 South Lewis Way SupremeCtBriefs@usdoj.gov Lakewood, Colorado 80227 (303) 292-2021 lechner@ mountainstateslegal.com jymecoy@ mountainstateslegal.com Counsel for Petitioners Counsel for Respondent ——— ee oe —— Petition For Certiorari Filed March 22, 2013 Certiorari Granted October 1, 2013 COCKLE LEGAL BREEPS (star) 225 fOR4 WWW COM KLELEGCALARIEFS OM TL rary ef Casares: Law ‘ib-arv JOINT APPENDIX TABLE OF CONTENTS Relevant Docket Entries from the United States District Court for the District of Wy- oming, 2:06-cv-00184-ABu ....................cceceeeeeeees Relevant Docket Entries from the United States Court of Appeals for the Tenth Cir- TERRES Done eae ase eer ie OED Stipulation of the United States and Defendant Wyoming and Colorado Railroad Company, Inc., Dist. Ct. Dkt. No. 93 (filed November es SED vistnncnnnictintainccnsniiipennianipmaennemmaneiine Declaration of Marvin M. Brandt (excerpt, paragraphs 1-10), Exhibit 3 to Statement of Undisputed Material Facts Filed by Defen- dants Marvin M. Brandt Revocable Trust and Marvin M. Brandt, Trustee, Dist. Ct. Dkt. No. 141-2 (filed October 10, 2007)............. Aerial Photograph of Fox Park Estates and the Brandt Property, Exhibit A to Second Decla- ration of Clinton D. Kyhl, Attachment to Re- ply to Response in Opposition to Motion, filed by Counter Defendant United States of America, Plaintiff United States of America, Dist. Ct. Dkt. No. 153-2 (filed December 4, il JOINT APPENDIX TABLE OF CONTENTS - Continued Page The following opinions and orders have been omitted in printing this Joint Appendix be- cause they appear on the following pages in the appendix to the Petition for a Writ of Certiorani: U.S. District Court for the District of Wyoming, Memorandum Opinion and Order, April 8, Tae en TE TT TT App. 10 U.S. District Court for the District of Wyoming, Judgment on Brandts’ First and Second Counterclaims, March 2, 2009 ...................... App. 57 U.S. District Court for the District of Wyoming, Judgment on Claims Against Wyoming and Colorado Railroad Company, March 2, 2009... App. 60 U.S. District Court for the District of Wyoming, Order Dismissing Brandts’ Third Counter- is Se as I cericcctcrssectivinictcticsnenencsnsnseen App. 62 Tenth Circuit Court of Appeals, Per Curiam COOGEE, TREO BD, BPE oc cesccccssecccsesevcssccsses App. 1 Tenth Circuit Court of Appeals, Order Denying Petition for Rehearing, December 26, 2012 ... App. 67 1 Relevant Docket Entries from the United States District Court for the District of Wyoming, 2:06-cv-00184-ABJ Date Filed No. Docket Text 07/14/2006 08/08/2006 1 59 10/10/2006 89 03/09/2007 105 COMPLAINT (Thirty-nine sum- monses issued), filed by United States of America. (szf) (Entered: 07/17/2006) * * * ANSWER to Complaint with Affirmative Defenses, COUNTER- CLAIM against Counter- Defendant United States of America by Defendant Marvin M Brandt. (Attachments: # 1 Exhib- it) (Pendley, William) Modified on 8/8/2006 (sjlg). (Entered: 08/08/2006 * * * United States’ Reply to Counter- claims of Defendant Marvin M. Brandt ANSWER to Counterclaim by Counter Defendant United States of America. Associated Cases: 2:06-cv-00184-ABJ, 2:06- cv-00171-ABJ (Vassallo, Nicholas) (Entered: 10/10/2006) * * *x AMENDED COMPLAINT for Declaratory Judgment of Aban- donment and to Quiet Title against Defendant Donna Ellen 2 Gruber, Edmund L Gruber, Kathlynn A Lambert, David M Pearce, Dorothy M Pearce, Robert S Pearce, Steven M Pearce, Billy M Ratliff, Tobin L Ratliff, Lynda L Rinker, Patrick R Rinker, Janis A Taffe, Steven P Taffe, Helen D Yeutter, Ronald B Yeutter, Eliza- beth Keeney, Susan Torres, Rondal Wayne, Juan Torres, Debra R Hinkel, Roger L Morgan, Daniel K McNierney, Susan McNierney, Ralph L Lockhart, Duane King, Patricia King, Mari- lyn Flint, Marjorie Secrest, Nor- ma J Breazeale, Marvin M Brandt, Gary Williams, June Williams, Glenna Marrs, Kenneth R Lankford, II, Kenneth R Lank- ford, Sr, Patrick R Rinker, Patri- cia A Rinker, David Yeutter, Marilyn Yeutter, Snowy Range Properties LLC, Michael Palmer, Sally Palmer, Ray L Waits, Vernon H Breazeale, Eugene L Budnick, Donald Graff, Wanda Graff, Lawrence R Otterstein, Ginny L Otterstein, Wyoming and Colora- do Railroad Company Inc, Albany County Board of County Commis- sioners, DuWayne Keeney , filed by United States of America. (sjlg) (Entered: 03/09/2007 ) % ae * 10/0 1/2007 10/02/2007 10/10/2007 10/10/2007 137 138 139 142 3 REFERRED TO MAGISTRATE JUDGE. MOTION to Amend/ Correct (105 in 2:06-cv-00184- ABJ) Amended Complaint, filed by Counter Claimant Marvin M Brandt, Defendant Marvin M Brandt. (Attachments: # 1 Amended Answer and Counter- claims# 2 Proposed Order) Associated Cases: 2:06-cv-00184- ABJ, 2:06-cv-00171-ABJ (McMah- on, Joshua) (Entered: 10/01/2007) ORDER by the Honorable William C Beaman granting (137 in 2:06- cv-00184-ABJ, 57 in 2:06-cv- 00171-ABJ) MOTION to Amend/ Correct (105 in 2:06-cv-00184- ABJ) to Substitute Real Parties in Interest and to Amend the Caption Associated Cases: 2:06-cv- 00184-ABJ, 2:06-cv-00171-ABJ (sjlg) (Entered: 10/03/2007) MOTION for Summary Judg- ment, filed by Counter Claimant Marvin M Brandt, Defendant Marvin M Brandt. Associated Cases: 2:06-cv-00184-ABJ, 2:06- cv-00171-ABJ (McMahon, Joshua) (Entered: 10/10/2007) * * * MOTION for Summary Judg- ment, on the Second Counterclaim of Defendants/Counterclaimants 11/13/2007 11/13/2007 12/04/2007 147 148 153 4 Marvin M. Brandt Revocable Trust and Marvin M. Brant, Trustee, filed by Plaintiff United States of America. Associated Cases: 2:06-cv-00184-ABJ, 2:06- cv-00171-ABJ (Statkus, Carol) (Entered: 10/10/2007) * * * RESPONSE in Opposition re (142 in 2:06-cv-00184-ABJ) Motion for Summary Judgment, (144 in 2:06-cv-00184-ABJ) Motion for Summary Judgment, filed by Counter Claimant Marvin M Brandt, Defendant Marvin M Brandt. (Attachments: # 1 Exhibit Second Declaration of Marvin M. Brandt) Associated Cases: 2:06-cv-00184-ABJ, 2:06- cv-00171-ABJ (McMahon, Josh- ua) (Entered: 11/13/2007) RESPONSE in Opposition re (139 in 2:06-cv-00184-ABJ) Motion for Summary Judgment filed by Plaintiff United States of Ameri- ca. Associated Cases: 2:06-cv- 00184-ABJ, 2:06-cv-00171-ABJ (Vassallo, Nicholas) (Entered: 11/13/2007) * * 4 REPLY to (147 in 2:06-cv-00184- ABJ) Response in Opposition to 12/04/2007 04/08/2008 4/18/2008 154 170 172 5 Motion, filed by Counter Defen- dant United States of America, Plaintiff United States of Ameri- ca. (Attachments: # 1 Attach- ments A & B and Declarations of Clinton D. Kyhl, Rick D. Cables and Casey B. Hull)Associated Cases: 2:06-cv-00184-ABJ, 2:06- cv-00171-ABJ (Statkus, Carol) (Entered: 12/04/2007) REPLY to (148 in 2:06-cv-00184- ABJ) Response in Opposition to Motion for Summary Judgment filed by Counter Claimant Marvin M Brandt, Defendant Marvin M Brandt. Associated Cases: 2:06- cv-00184-ABJ, 2:06-cv-00171- ABJ(McMahon, Joshua) (Entered: 12/04/2007) + * * MEMORANDUM OPINION AND ORDER by the Honorable Judge Alan B Johnson Associated Cases: 2:06-cv-00184-ABJ, 2:06-cv-00171- ABJ (sjlg) (Entered: 04/09/2008) * + + REFERRED TO MAGISTRATE JUDGE. MOTION for Order Defendant's Motion to Transfer Third Counterclaim to the United States Court of Federal Claims filed by Counter Claimant Marvin M Brandt, Defendant Marvin M 4/18/2008 03/02/2009 173 200 6 Brandt. (Attachments: # 1 Pro- posed Order Proposed Order Granting Defendant’s Motion To Transfer Third Counterclaim to the United States Court of Feder- al Claims)Associated Cases: 2:06- cv-00184-ABJ, 2:06-cv-00171-ABJ (McMahon, Joshua) ‘Entered: 04/18/2008 ) MOTION to Dismiss for Lack of Jurisdiction, Motion to Dismiss Third Counterclaim of Marvin M. Brandt Revocable Trust and Marvin M. Brandt, and United States’ Opposition to Transfer filed by Counter Defendant United States of America, Plaintiff United States of America. (At- tachments: # 1 Proposed Or- der)Associated Cases: 2:06-cv- 00184-ABJ, 2:06-cv-00171-ABJ (Vassallo, Nicholas) (Entered: 04/18/2008) * 4: JUDGMENT IN FAVOR of the United States on its Claims Against MARVIN M BRANDT Revocable Trust and MARVIN M BRANDT, Trustee and on the First and Second Counterclaims of MARVIN M BRANDT Revoca- ble Trust and MARVIN M BRANDT, Trustee by the 03/04/2009 04/29/2009 202 206 7 Honorable Judge Alan B Johnson ORDERED, ADJUDGED and DECREED (92) Motion for Order in case 2:06-cv-00171-ABJ; order- ing (172) Motion for Order in case 2:06-cv-00184-ABJ Associated Cases: 2:06-cv-00184-ABJ, 2:06- cv-00171-ABJ (sbad) (Entered: 03/03/2009) * + * ORDER Granting 93 (173) in case 2:06-cv-00171-ABJ Plaintiff ’s Motion to Dismiss the Third Counterclaim of Marvin M. Brandt Without Prejudice and Denying 92 (172) in case 2:06-cv- 00171-ABJ Defendant Marvin M. Brandt Revocable Trust’s, Marvin M. Brandt, Trustee, MOTION to Transfer the Third Counterclaim to the United States Court of Federal Claims. Associated Cases: 2:06-cv-00184-ABJ, 2:06-cv-00171- ABJ (szf) (Entered: 03/04/2009) + » a NOTICE OF APPEAL as to 200 Order on Motion for Order, 170 Order on Motion for Summary Judgment,, 202 Order on Motion for Order,, Order on Motion to Dismiss/Lack of Jurisdiction, filed by Counter Claimant Marvin M Brandt, Defendant Marvin M 8 Brandt. Filing fee $455 due. (Pendley, William) (Entered: 04/29/2009 ) * * a 9 Relevant Docket Entries from the United States Court of Appeals for the Tenth Circuit, No. 09-8047 Date Filed Docket Text 05/01/2009 09/30/2009 10/05/2009 12/14/2009 [9655512] Civil case docketed. Prelimi- nary record filed. DATE RECEIVED: 04/29/2009 Docketing statement due 05/15/2009 for Marvin M. Brandt. Transcript order form due 05/15/2009 for William Perry Pendley. Notice of appearance due on 05/15/2009 for Marvin M. Brandt and United States of America. * * * [9697616] Appellant’s brief ~ | Edited 10/05/2009 by BV}filed by Mr. Marvin M. Brandt. Original and 7 copies. Served on 09/30/2009. Manner of Service: US mail, ECF/NDA. JS. * * » {9699131] Appendix filed by Appellant Mr. Marvin M. Brandt. Original and 1 copies. Appendix pages: 242. Number of volumes: 1. Hardcopy only. Served on 09/30/2009. Manner of Service: US mail. * * * 19719668] Appellee/Respondent’s brief filed by United States of America. Original and 7 copies. Served on: 12/14/2009. Manner of service: US mail, 12/14/2009 12/21/2009 01/21/2010 06/28/2011 07/07/2011 10 ECF/NDA. Oral argument requested? Yes. KJB. [9720254] Appendix filed by Appellee United States of America. Original and 1 copy. Appendix pages: 11. Number of volumes: 1. Hardcopy only. Served on 12/14/2009. Manner of Service: US mail. a * a [9722788] Amicus Curiae brief filed by Rails to Trails Conservancy. Original and 7 copies. Served on 12/21/2009. Manner of Service: email, clerk. [9730326] Appellant/Petitioner’s reply brief filed by Mr. Marvin M. Brandt. Original and 7 copies. Served on 01/21/2010. Manner of Service: clerk. JS. # * * [9879541] Supplemental authority filed by Mr. Marvin M. Brandt and Marvin M. Brandt Revocable Trust. Served on 06/28/2011. Manner of Service: ECF/NDA. JS. [9882008] Response filed by United States of America to Appellants’ Letter of Supplemental Authority. Served on 07/07/2011. Manner of Service: ECF/NDA. KJB. *x * * 09/11/2012 10/24/2012 10/25/2012 12/18/2012 12/26/2012 11 (10000112) Affirmed. Terminated on the merits after oral hearing. Written, unsigned, unpublished (Enter for the court Per Curiam). Judges Kelly, O’Brien(concurring), and Holmes. Mandate to issue. [09-8047] [10013294] Petition for rehearing en banc, for rehearing filed by Mr. Marvin M. Brandt and Marvin M. Brandt Revocable Trust. Original and 18 copies. Served on 10/24/2012. Manner of Service: ECF/NDA. [09-8047] SJL * * * [10013766] Order filed by Judges Kelly, O’Brien and Holmes directing a re- sponse to the petition for rehearing en banc and/or panel rehearing on or before 12/18/2012 for United States of America. Served on 10/25/2012. [09- 8047] — [Edited 10/30/2012 by AT — Appellee was granted an extension of time to file a response. | [10029368] Response filed by United States of America to Appellant’s peti- tion for rehearing en banc and/or panel rehearing. Served on 12/18/2012. Man- ner of Service: ECF/NDA. [09-8047] KJB [10030875] Order filed by Judges Kelly, O’Brien and Holmes denying petition for rehearing and rehearing en banc filed by Appellants Mr. Marvin M. Brandt and Marvin M. Brandt Revoca- ble Trust. [09-8047] 03/27/2013 12 { 10057270] Petition for writ of certiora- ri filed by Marvin M. Brandt Revocable Trust, et al. on 03/22/2013. Supreme Court Number 12-1173. [09-8047] 13 MATTHEW H. MEAD United States Attorney CAROL A. STATKUS NICHOLAS VASSALLO Assistant United States Attorneys P.O. Box 668 Cheyenne, WY 82003-0668 Telephone: 307-772-2124 Facsimile: 307-772-2123 carol.statkus@usdoj.gov nick. vassallo@usdoj.gov KARL MORELL Ball Janik LLP 1455 F Street, N.W. Suite 225 Washington. D.C. 20005 Telephone: 202-638-3307 Fax: 202-783-6947 kmorel]@dc.bjllp.com IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING UNITED STATES OF AMERICA, Plaintiff, No. 06-CV-0184J and WYOMING AND COLORADO ) yr Case RAILROAD COMPANY, INC., ) N® O@-C VTi Ld et al. ) Defendants. ) V. ed 14 STIPULATION OF THE UNITED STATES AND DEFENDANT WYOMING AND COLORADO RAILROAD COMPANY, INC. (Filed Nov. 28, 2006) Plaintiff United States, by and through the United States Attorney for the District of Wyoming and Assistant United States Attorneys Carol A. Statkus and Nicholas Vassallo, and Defendant Wyo- ming and Colorado Railroad Company, Inc., by and through its attorney, Karl Morell of Ball Janik L.L.P., Washington, D.C., agree and stipulate as follows: 1. The Wyoming and Colorado Railroad Compa- ny (WYCO) is a party defendant in this action filed by the United States. 2. Karl Morell hereby enters his appearance on behalf of WYCO in this case. 3. WYCO acknowledges adequate service of process. 4. WYCO does not contest personal or subject matter jurisdiction or venue. 5. The lands subject to this action are those within the right-of-way granted under the General Railroad Right-of-Way Act of 1875 to the Laramie, Hahn's Peak and Pacific Railroad Company as de- scribed in paragraphs 11, 12, and 13 of the Govern- ment’s Complaint (“the right-of-way”). 15 6. WYCO is the successor to the Laramie, Hahns Peak and Pacific Railway Company. 7. WYCO operated the rail line until around September, 1995. 8. On May 16, 1996, WYCO filed a Petition for Exemption with the Surface Transportation Board (STB), seeking to administratively abandon its Coalmont Branch in Albany County, Wyoming, from the Colorado State line to near Laramie, Wyoming. 9. On September 16, 1996, the STB authorized the abandonment of the Coalmont Branch and estab- lished conditions of abandonment related to protect- ing historic integrity of sites and structures along the right-of-way, protecting geodetic station markers and consulting with the Forest Service regarding salvage activities. 10. WYCO removed the tracks and ties in 1999 and 2000. 11. On December 31, 2003, the STB removed the last of the conditions, thus permitting WYCO to consummate the abandonment of the rail line. 12. On January 15, 2004, WYCO notified the Secretary of the STB that it had consummated the abandonment of the Coalmont Branch. 13. Concerning those lands which are the subject of this action, namely the 28.08 miles of the right-of-way from the National Forest boundary near 16 Albany to the Wyoming Colorado state line encom- passing approximately 637.09 acres, WYCO has terminated all railroad activities and hereby stipu- lates that it abandons any and all rights, title and interests it may have in the mght-of-way, in accord- ance with 43 U.S.C. § 912. 14. WYCO agrees to the entry of a judicial decree of abandonment of the right-of-way. 15. WYCO takes no position on quiet title claims raised by the United States or the other De- fendants and does not need to be involved in further proceedings. SO STIPULATED AND AGREED. THE UNITED STATES OF AMERICA MATTHEW H. MEAD United States Attorney Dated: 11/28/06 _ By: /s/ Caro] A. Statkus Carol A. Statkus, Assistant United States Attorney Nicholas Vassallo, Nicholas Vassallo, Assistant United States Attorney 17 DEFENDANT THE WYOMING AND COLORADO RAILROAD, COMPANY, INC. Dated: _—___ By: /s/ Karl Morell Kari Morell, its attorney Ball Janik LLP [Certificate Of Service Omitted In Printing] 18 EXHIBIT 3 Joshua D. McMahon, Esq. William Perry Pendley, Esq. (Wyo. Bar No. 20995) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 Telephone: (303) 292-2021 Facsimile: (303) 292-1980 jmcmahon@mountainstateslegal.com Attorneys for Defendants Marvin M. Brandt Revocable Trust and Marvin M. Brandt, Trustee IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING UNITED STATES ) No. 06CV184-J OF AMERICA ) DECLARATION Plaintiff, ) OF MARVIN M. " BRANDT WYOMING AND COLORADO ? ‘Filed Oct. 10, 2007) RAILROAD COMPANY, INC., et al., ~ Defendants. ~~ — I, Marvin M. Brandt, declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the follow- ing statements are true and correct to the best of my knowledge: 19 1. In 1939, my father, Melvin M. Brandt began working at the sawmill located in Fox Park, Wyo- ming. Subsequently, in 1944, my father, in part, purchased the sawmill. 2. In 1946, at two years o1 age, my family moved to Fox Park, Wyoming. Thereafter, I attended Fox Park Grade School through grade eight. 3. In 1958, I began working at the sawmill. 4. In 1976, the Forest Service patented 83.32 acres of land in Fox Park, Wyoming, to my parents Melvin M. Brandt and Lula M. Brandt. A copy of the Patent is attached to Defendants’ Statement of Un- disputed Material Facts (*“DSOF”) at Exhibit 1. 5. From 1976 until 1991, I owned and operated the sawmill in Fox Park, Wyo. In 1991, I permanently closed the sawmill. 6. By 1991, I was the owner of the 83.32 acres of land patented to my parents. 7. In 2002, I created the Marvin M. Brandt Revocable Trust. A copy of the Trust Agreement is attached hereto as Exhibit A. 8. Iam Trustee of the Marvin M. Brandt Revo- cable Trust. 9. The Marvin M. Brandt Revocable Trust and Marvin M. Brandt, Trustee, are parties in the above captioned matter. 20 10. In 2002, I deeded the following property to the Marvin M. Brandt Revocable Trust: Lots 2,3,4,5,6,7,8,9,10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 31, 34, 35, 37, 38, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, and 60 Fox Park Estates in Government Tract 31, Section 21, Township 13 North, Range 78 West of the 6th P.M., Al- bany County, Wyoming. To date, the Marvin M. Brand Revocable Trust con- tinues to own that property. A copy of this deed is attached hereto as Exhibit B. * * * Respectfully Submitted By: /s/ Marvin M. Brandt Marvin M. Brandt, Trustee Marvin M. Brandt Revocable Trust 9 Moose Meadow Road Fox Park Wyoming 82070-9623 (307) 745-3258 Case 2:06-cv-00184-AB) Documert 153-2 ‘ay 4 ’ * MSR Si2 Row Mesh BS 33) © 9S" 5/7 208 eT, Filed 12/04/2007 __ Page 5 of 10 4 . ; Rocky Mountain 12 PETITIONER'S BRIEF se No. 12-1173 Iu The Supreme Court of the Anited States . MARVIN M. BRANDT REVOCABLE TRUST AND MARVIN M. BRANDT, TRUSTEE, Petitioners, Vv. UNITED STATES OF AMERICA, Respondent. « On Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit ¢ BRIEF OF PETITIONERS S STEVEN J. LECHNER, ESQ. Counsel of Record JEFFREY W. McCoy, Esq. MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 (303) 292-1980 (facsimile) lechner@mountainstateslegal.com jmccoy@mountainstateslegal.com Counsel for Petitioners CORKLE LEGAL BKIFES (sb) 925 6984 WWW COCKLELECALBRIEFES COM QUESTION PRESENTED This case involves the General Railroad Right-of- Way Act of 1875 (“1875 Act”), under which thousands of miles of rights-of-way exist across the United States. In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), this Court held that 1875 Act rights-of-way are easements and not limited fees with an implied reversionary interest. Based upon the 1875 Act and this Court’s decisions, the Federal and Seventh Circuits have concluded that the United States did not retain an implied reversionary interest in 1875 Act mghts-of-way after the underlying lands were patented into private ownership. In this case, the Tenth Circuit reached the opposite conclusion and acknowledged that its decision would continue a circuit split. The question presented is: Did the United States retain an implied rever- sionary interest in 1875 Act rights-of-way after the underlying lands were patented into private owner- ship? il PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT Petitioners are Marvin M. Brandt Revocable Trust and Marvin M. Brandt, Trustee. Petitioners were defendants in the U.S. District Court for the District of Wyoming and appellants before the U.S. Court of Appeals for the Tenth Circuit. Petitioners are not corporate entities. Respondent is the United States of America. The United States initiated this action against Petitioners and others, and was the appellee below. Wyoming and Colorado Railroad Company (“WYCO”) is a Utah Corporation and was a defendant below. WYCO did not participate in the Tenth Circuit proceedings. The other defendants were: Board of County Commissioners, Albany County, Wyoming; DuWayne Keeney; Elizabeth Keeney; Susan Torres; Juan Torres; Bunn Family Trust, Debra R. Hinkel, Trustee; Roger L. Morgan; Daniel K. McNierney; Susan McNierney; Ralph L. Lockhart; Duane King; Patricia King; Marilyn Flint; Marjorie Secrest; Gary Williams; June Williams; Glenna Louise Marrs Trust; Glenna Marrs and Rondal Wayne, Trustees; Kenneth R. Lankford Il; Kenneth R. Lankford, Sr.; Patrick R. Rinker; Patricia A. Rinker Flanigin; David Yeutter; Marilyn Yeutter; Snowy Range Properties, LLC; Michael Palmer; Sally Palmer; Ray L. Waits; ill PARTIES TO THE PROCEEDINGS AND RULE 29.6 STATEMENT -— Continued Breazeale Revocable Trust, Vernon H. and Norma J. Breazeale, Trustees; Eugene L. Budnick; Donald Graff; Wanda Graff; Lawrence R. Otterstein; Ginny L. Otterstein; Ronald B. Yeutter; Helen D. Yeutter; Patrick R. Rinker; Lynda L. Rinker; Edmund L. Gruber; Donna Ellen Gruber; Robert S. Pearce; Dorothy M. Pearce; David M. Pearce; Steven M. Pearce; Kathlynn A. Lambert; Steven P. Taffe; Janis A. Taffe; Billy M. Ratliff; and Tobin L. Ratliff. None of these defendants participated in the Tenth Circuit proceedings. iv TABLE OF CONTENTS Page ot yy tl By fs 4, yy 4 | rian i PARTIES TO THE PROCEEDINGS AND RULE TES LETT A RE ne aR il ee TE ccetisicscsescecccecsssnssssoversessseses iv ee Cer FF II onc scccccccconsvecnecnsensecsseses vii I aac nieciiidnnmmaniiligiiende 1 STATEMENT OF JURISDICTION ........0..000.0..... l STATUTORY PROVISIONS AT ISSUE ................ 2 STATEMENT OF THE CASE .....................:s0seeeeeees 2 I. LEGAL BACKGROUND .......................000 2 A. Railroad Land Grants ........................... 2 B. The General Railroad Right-Of-Way Act I Tis ciaceslaactbaeenaine slanieinbancaisiiesadartueoniamains 3 C. This Court’s Decision In Stringham. ..... 6 D. Congress Reacts To Stringham ............. 7 E. This Court Rules That 1875 Act ROWs I is niiessisistnigslepaibuieidianianineinin 8 F. The National Trails System Improve- I TIE I deiiriecitiinisessitecctinniccccveeses ) II. PROCEEDINGS BELOW. .........................04 11 SUMMARY OF ARGUMENT ............0.........0.02..... 15 I hcnctsgeitinis tah ag cuimidiadacesiecnnianiinconataanintaiie 18 I. Il. TABLE OF CONTENTS - Continued Page THE 1875 ACT GRANTED ONLY AN EASEMENT AND UPON ABANDON- MENT THE UNDERLYING PATENTED LAND BECOMES UNBURDENED ........... A. In Great Northern, This Court Unmis- takably Ruled That 1875 Act ROWs Are Easements POPP eee eee eee eee ee eee eee eee ee eee eee B. In Union Pacific, This Court Reaf- firmed That 1875 Act ROWs Are Ease- IIIT “cuiandticsissnsamnishibasdatidapitaiacubbihaiibeamamusmenmbiae C. The Department Of The Interior In- terpreted 1875 Act ROWs As Ease- IED ciinvidccnsninctentnestinnichisuniinsesinscamemnt D. When An 1875 Act ROW Is Abandoned, The Underlying Patented Land Is No Longer Burdened By The Easement .... THE UNITED STATES DID NOT RETAIN AN IMPLIED REVERSIONARY INTEREST IN 1875 ACT ROWS AFTER THE UN- DERLYING LANDS WERE PATENTED ... A. The Finding Of An Implied Reversion- ary Interest In 1875 Act ROWs Would Negate The Security Of Title Provided By Patents Issued By The United States B. Subsequent Statutes Cannot Alter Ei- ther Congress’s Intent In Passing The 1875 Act Or The Nature Of Previously Granted 1875 Act ROWs eee eee eee ee 18 18 26 28 31 35 36 vl TABLE OF CONTENTS - Continued Page C. Cases Interpreting Pre-1871 ROW Grants Cannot Create An Implied Reversion- ary Interest In 1875 Act ROWs............. 49 D. Marshai. And Oregon Short Line I Pro- vide No Support For The Finding Of An Implied Reversionary Interest In I ipsinntntidinicentictiieindannniein 53 IT cciisstnsissanicccditansiiininniininnseistgenianinenedaie 58 vil TABLE OF AUTHORITIES CASES Amoco Prod. Co. v. S. Ute Indian Tribe, 526 I conan 3, 32, 41 Beres v. United States, 64 Fed. Cl. 403 TPR at ee een eee ere Meno 14, 38, 40, 42, 58 Brandt v. United States, 102 Fed. Cl. 72 (2011)........ 13 Brandt v. United States, 710 F.3d 1369 (Fed. a ae 13 Chicago & N. W. Ry. Co. v. Continental Oil Co., 253 F.2d 468 (10th Cir. 1958) Chickasaw Nation v. United States, 534 U.S. 84 ESAS Ae esennsed one as ree eee yO ene an DPF ID 56 Choctaw, O. & G. R.R. Co. v. Mackey, 256 U.S. SEP aI ic staeciltaila teeslsesaciaahipaealiamuiaieatneaiunitdadalabiaemisied 23 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 SII siictiiesiicdinaitiipteialaescasiisbainadiaclanndalagiaamasiidadansigasnminiadmedsbicciiin 56 City of Aberdeen v. Chicago & N. W. Transp. Co., 602 F. Supp. 589 (D.S.D. 1984) ................. 34, 44 Denver & R.G. Railway Co. v. Alling, 99 U.S. NEP TEeiciariciisisscconeidatiinbdduaicanianienatieinaisuniaieuiandaimaed 23, 41 Dominguez De Guyer v. Banning, 167 U.S. 723 SSnInnTtTT a icedichschsclicnmtancdiceineaeiaipsiinansileescdiatcgicimictsiap hatte tt aac 31 Grainger v. United States, 197 Ct.Cl. 1018 IN Seiki inciedecieais eaabbendatehadaiaiaacdlotaasialala katana edie 31 Great Northern Ry. Co. v. United States, 315 ge RTE RPEERC RSE ELEY ees har nay Pa hoe passim Vili TABLE OF AUTHORITIES — Continued Page Hash v. United States, 403 F.3d 1308 (Fed. Cir. I clk aalidadedi i iontaeaatlaeeaandueanaadnaiionnatnitde 14, 36, 38, 46 Himonas v. Denver & R.G.W.R. Co., 179 F.2d ee Se IE TIE dnsibncccsnsicasecisnntnsdactinkicinncinsene 25, 54 Home on the Range v. AT&T Corp., 386 F. Supp. 2d 999 (S.D. Ind. 2005)................. 39, 52, 58 Idaho v. Oregon Short Line R.R. Co., 617 F. Supp. 207 (D. Idaho 1985).......... 53, 54, 55, 57, 58 Idaho v. Oregon Short Line R.R. Co., 617 F. Supp. 213 (D. Idaho 1985) .........................sssses0e. 57 Leo Sheep Co. v. United States, 440 U.S. 668 are ei ariinsisscniussdenscpuvnsiiindipsaihanieailieibainmepineiicieiddelilaiaiibaia passim MacDonald v. United States, 119 F.2d 821 (9th ON ca a a 19, 20, 32 Marshall v. Chicago & N.W. Transp. Co., 31 Re Me SEN DS IFO ctissirniccccsccncsnsnisscscnts passim Mauler v. Bayfield Cnty., 309 F.3d 997 (7th Cir. RR ESESSEeR, SOL Sn a) DS 90 hs OS NO OEP 52 McLaren v. Fleischer, 256 U.S. 477 (1921)......0..0...... 30 Missouri, K. and T: R. Co. v. Kansas Pac. R. ee 8 ee 31, 37, 38 Missouri, K. & T. R. Co. v. Roberts, 152 U.S. | EERE NE Rr A eR OO PS EP 3 Missouri-Kansas-Texas R. Co. v. Ray, 177 F.2d I TN acetic sicinttrnimtireciinnaaiaieniilh 24, 46 Moore v. Robbins, 96 U.S. 530 (1877) .....................4. 36 ix TABLE OF AUTHORITIES — Continued Page N. Star Steel Co. v. Thomas, 515 U.S. 29 (1995)....... 48 Nat'l Wildlife Fed'n v. LC.C., 850 F.2d 694 Ee BIE Fi ic ccncensnscnsccenvuniiigssamaainumisidatanniamaan 24 New Mexico v. U.S. Trust Co. of New York, 172 SP Oe Cee ecescnntestuisnciteiisdaamiiaiapiainliamaimel ae imal 24 Noble v. Oklahoma City, 297 U.S. 481 (1936) ........... 23 Northern Pac. Ry. Co. v. Townsend, 190 U.S. SEY CIEE cnrincserensenameniennniinninasiapiaaaae passim Poverty Flats Land & Cattle Co. v. United States, 788 F.2d 676 (10th Cir. 1986) ...........000000.... 31 Preseault v. 1.C.C., 494 U.S. 1 (1990)... eee 10 Preseault v. United States, 100 F.3d 1525 (Fed. Se FI sicsiintinsnnctpiensinintinntasiiiaddalad aaa 10, 24, 32 Rainwater v. United States, 356 U.S. 590 | ___ N TREM SRE TT eT RE we 46 Rice v. United States, 348 F. Supp. 254 (D. N.D. ITD csicusinnininstiaeniciaiaasseienpnnihniiiniiamaammasnidaa nee 51 Rice v. United States, 479 F.2d 58 (8th Cir. STUDY isiiciccsianinciiunpiidinipibanianiinsiieediiniadiiaaniianindsaiae 51 Rio Grande W. Ry. Co. v. Stringham, 239 U.S. Be Cie inriinicstesacresnsintesnsnimnineapaannanlll passim Rivers v. Roadway Exp., Inc., 511 U.S. 298 PUP icivnesiiviscneieindiialilbiainascisssiaieasiesiniaiidielaaaaai al 47 Samuel C. Johnson 1988 Trust v. Bayfield County, Wisconsin, 649 F.3d 799 (7th Cir. EEE? sncincisciginsdibieuaiinamaiacendmiammiinleenee 32, 52, 57 x TABLE OF AUTHORITIES -— Continued Page Shaw v. Merchants’ Nat'l Bank, 101 U.S. 557 a. scesnstntipanscsconness 31 Smith v. Townsend, 148 U.S. 490 (1893)............. 23, 34 Stalker v. Oregon Short Line R.R. Co., 225 U.S. a ES ETT 52 Swendig v. Washington Water Power Co., 265 a ssocenansosennesel 36 United States v. Denver & Rio Grande Ry. Co., Ss sgsntoniidinstinnisiints 41 United States v. Great N. Ry. Co., 32 F. Supp. a ieeennonennioene 18, 19 United States v. Magnolia Petroleum Co., 110 cS 33, 48 United States v. Nixon, 418 U.S. 683 (1974) ............. 29 United States v. Price, 361 U.S. 304 (1960)............... 46 United States v. Stone, 69 U.S. 525 (1864)................ 36 United States v. Union Pac. R. Co., 91 U.S. 72 a puinsenbonononsoncesos 21 United States v. Union Pac. R. Co., 126 F. Supp. 646 (D. Wyo. 1954).................cccccssssssseseeees 26 United States v. Union Pac. R. Co., 230 F.2d ET aR 26 United States v. Union Pacific R. Co., 353 U.S. STi lutein iiaiareredensnettaninccensconsensstonesaenesess passim Work v. State of Louisiana, 269 U.S. 250 (1925) ....... 36 xi TABLE OF AUTHORITIES - Continued Page Wyoming v. Andrus, 602 F.2d 1379 (10th Cir. TAROT IE TAP HS BAN Be Om POA CoN, 29, 44, 50 Wyoming v. Udall, 379 F.2d 635 (10th Cir. EE acer e ee aes Meee Ree peer. 27, 28, 50, 52 STATUTES 1862 Pacific Railway Act, 12 Stat. 489 (1862)....2, 26, 27 1864 Pacific Railway Act, 13 Stat. 356 (1864)....... 2,27 1864 Northern Pacific Railway Act, 13 Stat. a el 3 Act of July 26, 1866, 14 Stat. 289 (1866).........0.....00.... 3 Act of April 12, 1872, 17 Stat. 52 (1872)..........0..... 4, 20 General Railroad Right-of-Way Act of 1875, 18 Stat. 482 (1875) (codified at 43 U.S.C. TT AEE ARTE OND LOND nth passim I al aeeeciehiaeieanainaelal 2,5 A 5 ee a pisdaeieasenainnes 5, 6, 19, 41, 45 Act of March 3, 1891, 26 Stat. 1095 (1891) (codified at 43 U.S.C. §§ 946-949) ...0.00.. ee. 25 Act of June 26, 1906, 34 Stat. 481 (1906) (codified at 43 U.S.C. § 944) .00000 oe. 22, 25, 46 Act of June 26, 1906, 34 Stat. 482 (1906)........0.000000.... 6 Act of February 25, 1909, 35 Stat. 647 (1909) (emia G6 4B UEE.C. © BOBD occcccccccccccccccscccscvcccsss 6, 46 xl TABLE OF AUTHORITIES — Continued Page Act of March 8, 1922, 42 Stat. 414 (1922) (codified at 43 U.S.C. § 912) ...................ceeceee passim Federal Land Policy and Management Act, Pub. L. No. 94-579, Title VII § 706(a), 90 Stat. 2743 (1976) (codified at 43 U.S.C. ea We I vaiciciisnidecintniocscsieiiibincsacniiiameadied’ 41 General Exchange Act, 16 U.S.C. §§ 485-86 I a oak 11 SU a 30 National Trails System Act Amendments of 1983, Pub. L. No. 98-11, 97 Stat. 42 (1983) (codified at 16 U.S.C. §§ 1241-1251)... ee. 9 National Trails System Improvements Act of 1988, Pub. L. No. 100-470, §3, 102 Stat. SN IN Acscciadsndesicnscniesiccutadeindniiieapasiaiamnnnnnsette 2,9, 10, 49 FE YER ee REPRE passim ee tit MTN uiicsnttrsicicitinarcchctibtabasesidbice ninanheabaigaiiaianatta 2 ee ec UU cca chica eglsicclieonagibaaseiiiadedigmndiaan 56 | | ESR eee mee NOM aR Te he eS ree 1 Xili TABLE OF AUTHORITIES -— Continued Page LEGISLATIVE HISTORY ey TERRA TITY ectanccondensensiinntcnadannsaceinnsen 10, 49 Cong. Globe, 42nd Cong., 2d Sess., 1585 (1872).......... 4 Cong. Globe, 42nd Cong., 2d Sess., 2136 (1872).......... 4 H.R. Rep. No. 59-4777 (1906)....................0.sssssrcscesseee 22 BE.me. GED. BVO. ST-BUT (GEE ).....ccccsescoccocceecessveces 7, 44, 45 Be nS Se UII vncccinsoseciencciiccsisianniiteuinnpiedicanommeltiinte 44 SD. Baw. Pee. DODGED (IBBB) «.crccvececccsoccssvcesesversessses 10, 49 REGULATIONS ee te I iaiietccckssccdunioncdcndsonseecaaieimmpueniatd 29 43 C.F.R. § 2842. l(a) (1976) ......................000¢ 29, 34, 38 RULES ID CAINS TID TING yicscsciscectssnsesnvensscstenscesncticnens il FEDERAL REGISTER 35 Fed. Reg. 9,502 (June 13, 1970)............. ara ae 29 45 Fed. Reg. 44,518 (July 1, 1980) ......000.. ee. 29 ADMINISTRATIVE DECISIONS BG Din, Abt, Glam, BD (ITO) once esccccccccccscnevessecesecsceces 34 Amerada Hess Corp., 24 IBLA 360 (1976)........... 30, 51 George W. Zarak, 4 IBLA 82 (1971) .....0...... eee. 51 X1V TABLE OF AUTHORITIES - Continued Page Fremont, Elkhorn and Missouri Valley Ry. Co., In aie 5 Right of Way-Railroads-Act of March 3, 1875, eae 22 Right-of-Way Railroads, 37 L.D. 787 (1909).............. 29 Solicitor’s Opinion M-36597, 67 I.D. 225 (1960) ....... 25 Solicitor’s Opinion M-36964, 96 I.D. 439 Ee Fe Rae ee OP ee 39, 40, 55 Solicitor’s Opinion M-37025 (2011), available at http//www.doi.gov/solicitor/opinions/M-37025.pdf (iast visited Nev. 9, BO1D)........0.....0e...0.0000.: 40, 51, 55 State of Wyoming, 27 IBLA 137 (1976) ...................... 29 OTHER AUTHORITIES Brief for the United States, Great Northern Ry. Co. v. United States, No. 149, 1942 WL ER RS ea een Tear ee AT STON LONE passim David G. Ebner, Mineral Ownership Beneath Railroad Rights-Of-Way, 31 RMMLF-INST a ehieeiasianaeiadal 25 James W. Ely, Jr., Railroads & American Law IE iieiicichiahdbinatsdiiteiheacuihiine diaiian codtumadalindandiianansenicea a James W. Ely, Jr. and Jon W. Bruce, The Law of Easements & Licenses in Land (2013) ................... 39 Joyce Palomar, Patton and Palomar on Land SE ERENT Seem Se ane Se 48 Lewis M. Sines, Future Interests (2d ed. 1966) ......... 48 XV TABLE OF AUTHORITIES — Continued Page Marion Clawson and Burnell Held, The Federal Lands: Their Use and Management (1957)............ 4] Paul W. Gates, History of Public Land Law De- SIT enesiontesenvenirentncticisinansimendscnembibennitcinitians 3 Restatement (First) of Property § 504 (1944)............. 32 Restatement (Third) of Property (Servitudes) § 2.2, aE Te a EET 34 Restatement (Third) of Property (Servitudes) § 7.4, nn kG SED siakactceinalnpaauosianiihiana 32 Sharon J. Bell, Osages, Iron Horses and Re- versionary Interests: The Impact of United States v. Atterberry on Railroad Abandon- ments, 20 Tulsa L.J. 255 (1984).............. eee ees 33 l OPINIONS BELOW The opinion of the U.S. Court of Appeals for the Tenth Circuit was not selected for publication in the Federal Reporter, is available at 496 Fed. App’x 822, and is reproduced at Petition Appendix (“Pet. App.”) 1-9. The opinion of the U.S. District Court for the District of Wyoming was not selected for publication in the Federal Supplement, is available at 2008 WL 7185272, and is reproduced at Pet. App. 10-56. ° STATEMENT OF JURISDICTION On March 2 and 3, 2009, the district court en- tered final judgment against Petitioners. Pet. App. 57-59. On April 29, 2009, Petitioners timely filed a Notice of Appeal. Joint Appendix (“JA”) 7. On Sep- tember 11, 2012, the Tenth Circuit issued a per curiam decision affirming the district court’s judg- ment. Pet. App. 1-9. On October 24, 2012, Petitioners timely filed a petition for rehearing en banc and/or panel rehearing. That petition was denied on Decem- ber 26, 2012. Jd. 67-68. The Petition for Writ of Certi- orari was timely filed on March 22, 2012, within ninety days of denial of the petition for rehearing. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). 2 STAT t'TORY PROVISIONS AT ISSUE The Ge... «ul Railroad Right-of-Way Act of 1875 (“1875 Act”), 18 Stat. 482-83 (1875), is codified at 43 U.S.C. §§ 934-939, and is reproduced at Pet. App. 69- 71. The Act of March 8, 1922, 42 Stat. 414-15 (1922), is codified at 43 U.S.C. § 912, and is reproduced at Pet. App. 72-73. Relevant portions of Section 3 of the National Trails System Improvements Act of 1988, Pub. L. No. 100-470, § 3, 102 Stat. 2281 (1988), are codified at 16 U.S.C. § 1248(c) and (d), and are reproduced at Pet. App. 74. » STATEMENT OF THE CASE I. LEGAL BACKGROUND. A. Railroad Land Grants. During the mid-1800s, the United States pro- moted, as national policy, the development and set- tlement of the public domain in the western United States. See, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0888%3A0. Public record. Not legal advice.