Here’s the Brief for the United States in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (filed Dec. 17, 2013).
That’s the case, set for argument on January 14, 2014, in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases.
Here are the final two amicus briefs supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute. As our amici brief argues, if the Court accepts the government’s theory in the case, it could wipe out an entire class of rails-to-trails takings cases.
Next up, the government’s merits brief.
Continue Reading Last Two Amicus Briefs In SCOTUS Rails-To-Trails Case
Here are two more amici briefs supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
The Cato, et al brief argues:
We doubt there is serious dispute that protecting individuals’ right to their property is a foundational purpose for which our national and state governments were established. But we begin from this point because the right landowners have to be secure in their property is undermined…
Continue Reading More Amici Briefs In SCOTUS Rails-To-Trails Case
Here’s the amici brief of Pacific Legal Foundation and the Center for Constitutional Jurisprudence in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As we’ve explained, although this case is a quiet title action out of a Colorado U.S. District Court, it could have huge implications for rails-to-trails takings cases in the Court of Federal Claims and the Federal Circuit. The issue is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot.
The Tenth Circuit, in contrast to other courts, held that the right of way is subject to an implied reversionary interest in favor of the United States, meaning that the property owner doesn’t have “property” that was taken when the railroad was abandoned and was turned into a recreational trail. The merits brief of the petitioners is posted here.
We filed an amicus brief in the case, available here.
The PLF/CCJ brief argues:
This case raises important questions regarding the common law system of property ownership and the certainty of titles in property.
…
In the decision below, however, the Tenth Circuit repudiated the common law rules of property ownership in favor of a per se rule, holding that the United States—the original grantor of the railroad easement and the Brandts’ fee estate—will retain an “implied reversionary interest” in an 1875 Act right-of-way, even after the government patents the underlying land and conveys it to a private party without any express reservation of reversionary rights. … The decision below extended the Tenth Circuit’s rule, holding that all private landowners whose titles are traceable to a federal land patent will be subject to the government’s unexpressed reservation of a reversionary interest in a railroad right-of-way, regardless of the rights and expectations established by their titles.
…
If not reversed, the Tenth Circuit’s rule will unsettle the rights and expectations of tens of thousands of landowners across the nation. … Amici urge this Court to reverse the Tenth Circuit’s opinion in this case and to reaffirm the fundamental common law principle that ownership of land will be determined by title, not implication.
More background on the case in a piece in Jurist by PLF’s Brian T. Hodges, “Brandt v. US: Should the Common Law of Propert be Scrapped?”
Here’s the amici brief we are filing (along with our firm colleagues Mark Murakami and Bethany Ace) in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
As we explained here, although this case is a quiet title action out of a Colorado U.S. District Court, it could have huge implications for rails-to-trails takings cases in the Court of Federal Claims and the Federal Circuit. The issue is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot.
In this case, the railway abandoned its use, after which…
Continue Reading New Amici Brief: Attempting To Derail Rails-To-Trails Takings Cases
Here’s the property owner’s merits brief in the case about the meaning of the term “railroad right of way” in an 1875 federal statute, Marvin M. Brandt Revocable Trust v. United States, No. 12- 1173. The meaning of a term in a somewhat obscure federal statute in a quiet title action isn’t a case of obvious interest here, but as the amicus brief we filed at the cert stage points out, a decision in the government’s favor could jeopardize rails-to-trails takings cases.
The issue in Brandt is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the…
Hey, that rhymes! Today, in a not-entirely-unexpected move, the U.S. Supreme Court granted cert and agreed to review United States v. Brandt Revocable Trust, No. 09-8047 (Fed. Cir. Sep. 11, 2012).
We say not-unexpected for two reasons. First, the Tenth Circuit expressly noted its ruling created a circuit split (that’s catnip to counsel considering a petition). Second, the Solicitor General did not oppose the petitition, but agreed that it should be granted to resolve the split in the government’s favor.
The issue in the case is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the…
Here’s the Opinion and Order of the Court of Federal Claims after the damages trial in Childers v. United States, No. 08-1981 (Aug. 5, 2013). It’s a very long opinion (145 pages, with a table of contents!), so we’re not going to summarize it, but if you want to know how a rails-to-trails case is tried, you can’t do better than this. Here’s the court’s overview:
This Fifth Amendment taking case comes before the Court following a trial on damages. Plaintiffs, landowners of 13 separate properties in Sarasota, Florida, seek just compensation stemming from the imposition of a recreational trail across their properties pursuant to the Rails to Trails Act. Specifically, Plaintiffs seek $8,703,800, representing $4,938,200 for the encumbrance of the trail and $3,765,600 in severance damages. Defendant asserts that compensation should be limited to the encumbrance, which it claims is properly valued at $2,220,900. The Court awards just…
Continue Reading Major CFC Decision On Rails-To-Trails Takings
The federal government has filed its brief responding to the cert petition which asks the Supreme Court to review a Tenth Circuit decision and resolve a lower court split about the meaning of the term railroad “right of way” as used in an 1875 federal statute and federal land patents subject to the 1875 Act.
The issue is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the right of way, and that it did not revert to the property owner.
Disclosure: we filed an amicus brief in the case supporting the petition. Our brief argues that the…
Every now and then, we post an update from the rails-to-trails arena. But we’ve never provided a “big picture” look at the issue. Well, law.com has saved us the effort. In “Rails-to-Trails Program Costly to Taxpayers,” Jenna Greene provides an overview of how a law the Congressional Budget Office said “wouldn’t cost the federal government a thing,” ended up costing the taxpayers $49 million in the last year alone. Worth reading.
For our latest foray into this area, see our amicus brief urging the Supreme Court to review a Tenth Circuit case about the meaning of the term railroad “right of way” in an 1875 federal statute. We argue that the case, if left unreviewed by the Court, is an effort to undercut rails-to-trails takings cases. Continue Reading A Summary Of Rails-to-Trails Takings Cases