This is the brief of Owners' Counsel of America supporting the petitioners in Brandt v. United States. That case involves an abandoned rail line in Wyoming, but this case has nationwide implications.
The issue before the Court is whether railroad "rights of way" under an 1875 federal statute implied reversionary interests" as the Tenth Circuit determined in this case, or are easements as held by the Seventh, Ninth, and Federal Circuits. The difference being that a railroad easement belongs to the owner of the underlying parcel when a railway ceases operation, whereas an "implied reversionary interest" belongs to the United States in those same circumstances.
Here's the summary of the brief's arguments:
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 interests.”
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 easements—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.
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