OCA/NFIB Amicus Brief Filed in Brandt Rails to Trails Case

December 6, 2013

The Owners Counsel of America (OCA) and National Federation of Independent Business (NFIB) Small Business Legal Center filed their amicus brief in support of the landowner in Brandt v. United States, No. 12-1173 (cert. granted October 1, 2013) arguing the United States Supreme Court should reverse a Tenth Circuit Court of Appeals decision which held the United States retained an implied reversionary interest in railroad rights-of-way.

As described in an earlier post, this case involves the conversion of an abandoned railroad line crossing private property to a public recreational trail under the National Trails System Act, 16 U.S.C. § 1241. The railroad abandoned the easement in 2003. In 2005 under the National Trails System Act, the U.S. Forest Service issued a notice of intent to convert the abandoned railway crossing the Brandt property into a national trail.  The United States filed a quiet title action asserting it owns the land encumbered by the easement.

The brief filed by OCA and the NFIB Legal Center argues that, if the Tenth Circuit’s decision is accepted and applied nationwide as the Federal Government has urged in its brief, an entire class of takings claims will be eliminated.  It says the lower court’s conclusion “is nothing more than a backdoor way to avoid paying just compensation in cases that the Government keeps losing.”  The brief also argues the Supreme Court’s decision in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), which holds that 1875 Act rights-of-way are easements, “is supported by the common law definition of right of way prevailing at the time that the 1875 Act was adopted.”

This case began as a quiet title action filed by the U.S. in the Colorado U.S. District Court.  But it could have significant 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.  Easements may be extinguished, but reversionary interests cannot.