In Rails to Trails Case, Solicitor General Changes Course From Position Taken 70 Years Ago

March 10th, 2014

Marvin M. Brandt Revocable Trust v. United States is a case that (perhaps) only property professors can enjoy. In another installment in the lengthy “Rails to Trails” litigation, this case considers whether the government retains a reversionary interest in an easement that was granted, and abandoned, by a railroad.

In the mid-19th century, Congress began granting pri­ vate railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads’ rights of way. The settlers and their successors remained, but many of the railroads did not. This case presents the question of what happens to a railroad’s right of way granted under a particular statute—the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way?

Writing for 8 Justices, Chief Justice Roberts notes that the Court previously adopted the position the Solicitor General successfully argued in 1942 (the SG in 1942 was Charles Fahy):

The Govern­ ment loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U. S. 262 (1942).

Yet, 70 years later the Government takes a different position.

Contrary to that straightforward conclusion, the Gov­ ernment now tells us that Great Northern did not really mean what it said. Emphasizing that Great Northern involved only the question of who owned the oil and min-

erals beneath a right of way, the Government asks the Court to limit its characterization of 1875 Act rights of way as “easements” to that context. Even if the right of way has some features of an easement—such as granting only a surface interest to the railroad when the Govern­ ment wants the subsurface oil and minerals—the Gov­ ernment asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it. But nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading.

Roberts even finds this change of position “ironic”:

We cannot overlook the irony in the Government’s ar­ gument based on Sections 912 and 940. Those provisions plainly evince Congress’s intent to divest the United States of any title or interest it had retained to railroad rights of way, and to vest that interest in individuals to whom the underlying land had been patented—in other words, people just like the Brandts. It was not until 1988—12 years after the United States patented the Fox Park parcel to the Brandts—that Congress did an about­ face and attempted to reserve the rights of way to the United States. That policy shift cannot operate to create an interest in land that the Government had already given away.5 

So now, the United States is estopped by positions taken 70 years ago on property issues.

More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied rever­ sionary interest. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are con­ cerned.” Leo Sheep Co., supra, at 687.

Justice Sotomayor doubts that the government actually changed course, noting the critique is misplaced here

Even assuming that it is an injustice for the Govern- ment to change positions on an issue over a 70-year period, it is not clear that such a change in position happened here. Yes, the Government argued in Great Northern that a right of way was an “easement.” It proposed, however, that the right of way may well have had “some of the attributes of a fee.” Brief for United States in Great Northern R. Co. v. United States, O. T. 1941, No. 149, pp. 36–37. The Government contended that it is “ ‘not important whether the interest or estate passed be consid- ered an easement or a limited fee,’” observing that an easement “may be held in fee determinable.” Id., at 35–36 (quoting United States v. Big Horn Land & Cattle Co., 17 F. 2d 357, 365 (CA8 1927)). Indeed, the Government expressly reserved the possibility that it retained a rever- sionary interest in the right of way, even if the surround- ing land was patented to others. Brief for United States in Great Northern, at 10 n. 4. The Court is right to criticize the Government when it takes “self-serving” and contra- dictory positions, ante, at 12, but such critique is mis- placed here.