Brandt v. United States
Contact: William Perry Pendley, 303/292-2021, Ext. 30
I have just returned from the appearance by Mountain States Legal Foundation (MSLF) before the Supreme Court of the United States on behalf of our Wyoming client, Marvin Brandt. Now that I have finished the work that piled up during my time in Washington, D.C., including fundraising efforts for 2013, I want to report to you on the arguments.
By way of background, in 1875, Congress passed the General Railroad Right of Way Act of 1875, which provided for conveying easements to railroads to lay railroad track to permit the settlement of the West by private citizens. It was clear at that time that the right granted to the railroads was an easement and NOT a partial fee with a right of reversion to the federal government of the right of way after the railroad ended its use of the easement. In fact, from the time the U.S. Department of the Interior (DOI) first adopted regulations regarding the act in the 1800s until today, that is, as recently as November 2011 (the date of the most recent Solicitor’s Opinion on the issue), the DOI has treated the right of way as an easement when conveying land to settlers. In 1942, the Supreme Court was presented with the question of whether the right of way was an easement or a partial fee in which the federal government retained an interest. The Solicitor General (SG) spent almost the entire brief arguing that it was an easement. The Supreme Court adopted that argument almost verbatim and rejected other arguments by the SG that were inconsistent with the holding that the right of way was an easement. Meanwhile, Congress made no changes in the 1875 act in response to either the actions of the DOI or the ruling of the Supreme Court.
As a result, everyone in the country--lawyers, landmen, and title insurance providers--recognized that if the federal government conveys to a private party lands encumbered with an 1875 railroad right of way, when the railroad abandons its use of the right of way, the former easement is absorbed into the title owned by the private landowner. That is, the land is no longer encumbered by the easement and is owned outright and totally by the landowner and NOT the federal government. The patent received by our client, Marvin Brandt of Fox Park, Wyoming, provides that his land is encumbered by the railroad right of way and that the federal government retains no interest in the property. Now the federal government, after 140 years of arguing otherwise, asserts that when it conveyed the right of way to the railroad it was NOT an easement, but a partial fee in which the federal government retained the right of reversion, that is, it could get it back. This partial fee with right of reversion that the federal government argues exists and has existed since 1875 is unknown to the common law and property law in this country. In fact, the concept is not just alien to the common law, it is a sleeping Frankenstein monster created by the federal government and its allies in States, municipalities, and land-grab groups that, if allowed to awaken as a result of a Supreme Court ruling against Marvin Brandt, will eject people from their land and even their homes. As several justices pointed out during the argument, the federal government argues that, contrary to all knowledgeable expectation and 140 years of actions by Congress, the Court, and the Executive, millions of landowners will be displaced or have their titles to their land rendered in doubt.
There was some media coverage of the case:
http://www.scotusblog.com/2014/01/argument-preview-rights-to-old-rights-of-way/
http://www.usatoday.com/story/news/nation/2014/01/14/supreme-court-property-rights-west/4479339/
http://washingtonexaminer.com/supreme-court-to-decide-if-bicycle-trails-trump-property-rights/article/2542361
My article on the case appeared in the Washington Times the day before the argument:
http://www.washingtontimes.com/news/2014/jan/12/pendley-the-us-forest-service-land-grab/
Because cameras are not allowed in the Courtroom, artists capture their view of the proceedings. Here is that of Art Lien (you may click on it to enlarge it):
To sum it up, the argument went very well for MSLF and its client. I expect a 7-2 ruling (with Justices Breyer and Kagan joining the 5 normally right-of-center justices) and would not be surprised with a unanimous ruling given Chief Justice Roberts’ penchant for unanimous rulings and the lack of any ideological passion in the questions posed by Justices Ginsburg and Sotomayor. The transcript is online here:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-1173_7lh8.pdf
As MSLF’s Vice President and Chief Legal Officer, Steve Lechner, made clear in his opening, the ruling sought by the federal government would: 1) overturn the Court’s 1942 ruling in Great Northern, which interpreted the 1875 General Railroad Right of Way Act, which is at issue in Brandt; 2) overturn the Court’s 1979 ruling in Leo Sheep, which held the federal government does not acquire property by implication, or as I would put it, by stealth; and 3) reverse 140 years of policy by the federal government including acts of Congress, consistent actions by the Executive, specifically the Department of the Interior, and a ruling by the Supreme Court in 1942.
As a result, the federal government was under constant attack during its argument for: 1) reversing its position, which the Court wholeheartedly embraced, in Great Northern; 2) not providing case law support for its new position, adopted after 140 years of viewing the grant in question as an easement; and 3) subjecting thousands and perhaps millions of landowners, who had relied on the federal government’s actions for 140 years, to the seizure of their property and on this point the federal government was hammered for not knowing how much land would be affected by the Court’s decision. Declared Justice Scalia, “[Y]ou should know how much land the United States owns. It's incredible that--that there's no record in the Interior Department or anywhere else of what land the United States own. You claim you own these thousands of acres, and you say we've not kept track of it. We just know where it's going to go, but we don't know what we own.” (pp. 51-52)
The attack on the federal government started early—the federal government’s attorney got out two sentences--with Justice Alito: “Mr. Yang, I have to say I think the government gets the prize for understatement with its brief in this case. You have a sentence in your brief that says, 'We acknowledge that there is language in this Court's opinion in Great Northern and in the government's brief in that case that lends some support to petitioner's contrary argument.'" Then Justice Alito quoted four subject headings from the government’s brief in Great Northern, which argue forcefully that the grant is an easement. (p. 24)
Justice Breyer was very troubled by the possibility that someone would wake up with a bicycle path through his house (p. 36), especially given the proper reliance on Great Northern for over 70 years. “Can you imagine or explain to me why a property lawyer worth his salt since 70 years ago or more, 1942, wouldn't have read [Great Northern] and advised his client, who was buying the land, if the railroad abandons it, it's yours,” asked Justice Breyer. (p. 32) “[B]ecause the lawyer would think--when he reads the case of Great Northern … it's an easement.” (pp. 36-37) Justice Kagan later jumped in, “Well, I'm just suggesting that after Great Northern and then you're given this patent, which is unequivocal and does not reserve anything, why anybody would think that they haven't gotten the whole ball of wax is a mystery.” (pp.40-41) As I noted already, the desultory and perfunctory questions by Justice Ginsburg and Sotomayor cause me to believe that they will join the other justices in the majority opinion.
I will let you know when the Court rules, which should be long before June.
William Perry Pendley, Esq.
President
Mountain States Legal Foundation
Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.