In the 19th Century, when railroads were being built across the West, the federal government granted significant land and benefits to the railroad companies. The Great Railroad Right-of-Way Act of 1875 allowed the government to give railroad companies easements to build tracks — that is, a right to use sections of another’s property without legally owning it. The Brandt family eventually acquired land in Wyoming that came with pre-existing railroad easements.



In 2001, the owner of the easement formally abandoned all claims to it, presumably returning the property to the Brandts. But the government wanted that land. In 2006, it sued for title to the former easement land on the theory that the government retained a residual claim to it after the railroad abandoned it. The Brandts argue that the government has no such right and that taking their land requires just compensation under the Fifth Amendment’s Takings Clause.



Although this may seem like a small, unique problem, the scope of the Old West’s railway system was huge and those old easements criss-cross the land of thousands of property owners. In 1983, Congress amended the National Trails System Act to allow the government to take abandoned railroad easements and turn them into land for public recreation and “railroad banking.” Landowners have been fighting the taking of their property under the Trails Act ever since, claiming, as here, that the government’s original grant to the railroads contained no residual right of possession for the government.



Indeed, two federal courts of appeals, the Seventh and Federal Circuits, have held that the government didn’t retain any residuary rights. In the Brandts’ case, however, the Tenth Circuit held otherwise. This circuit split is untenable. Over 5,000 miles of abandoned track has been taken by the government since the Trails Act, and about 10,000 property owners are currently fighting in federal courts to hold onto their property.



Of course, given the possible benefits of not having to pay compensation to landowners, the government has responded to these claims by being aggressively litigious, reaching into its endless war-chest of taxpayer-provided resources to challenge the landowners on every tiny point. As the Federal Circuit said, the government’s behavior is “puzzling” in that it is “foregoing the opportunity to minimize the waste both of its own and plaintiffs’ litigation resources, not to mention that of scarce judicial resources,” but also by advancing arguments “so thin as to border on the frivolous.”



Cato, along with the National Association of Reversionary Property Owners, has filed an amicus brief supporting the Brandts and asking the Supreme Court to rectify the above situation. We argue that the Tenth Circuit ignored the reasoning of its sister circuits and instead relied on far less persuasive authority. Given the scope of land possibly involved — there are approximately 130,000 miles of abandoned track in the country, with 3,000 more being abandoned every year — it’s difficult to imagine a decision more unsettling to the expectation of thousands of property owners than the Tenth Circuit’s unjustified ruling here.



Ironically, given the scope of the problem, the Court’s resolution of this issue against the government might actually save the government money, even if it has to pay just compensation. The government’s behavior in challenging these claims demonstrates not only the need for the Court to rectify circuit splits, but also to uphold the property rights of citizens against opportunistic, self-interested, and powerful governmental forces that often just don’t play fair.



The government will now have a chance to respond to the cert petition in Brandt v. United States, and then this fall the Supreme Court will decide whether to take the case.