Ownership of Federal Land: Answers Suggested by the Bundy Standoff (Eminent Constitutional Scholar)

Our American Constitution ^ | April 25, 2014 | Prof. Rob Natelson

[BuckeyeTexan]

I posted the following on another thread the other day and failed to ping either of you. Apologies.

There are two recent cases that could give us an indication about how a Roberts' Court would rule: Marvin M. Brandt Revocable Trust v. United States (March 2014) and PPL Montana, LLC v. State of Montana (February 2012). The following is regarding the latter.

The Supreme Court sided today with a Wyoming landowner who challenged the Forest Service's construction of a bicycle trail on an abandoned railway that slices through his property.

By an 8-1 vote, the justices held in Marvin Brandt Revocable Trust v. United States that the government had no right to Brandt's Fox Park tract once the railroad formally abandoned the property around 2004. The decision reverses a lower federal appellate court ruling in favor of the Forest Service.

Chief Justice John Roberts, writing for the majority, classified the railroad right of way as an easement that reverted back to Brandt when the railroad pulled up its ties.

The government, Roberts wrote, lost because of its arguments in a previous Supreme Court case -- 1942's Great Northern Railway Co. v. United States. That case centered on whether railroads were given rights to subsurface minerals when the government granted a right of way.

The government won in that case by arguing that railroads didn't get mineral rights and classified rights of way as easements, meaning a temporary right to cross the land.

The court "cannot overlook the irony," Roberts said, of the government now basing its arguments on other Supreme Court cases.

"The government loses that argument today, in large part because it won when it argued the opposite before this court more than 70 years ago," he wrote.

"Those basic common law principles resolve this case. When the Wyoming and Colorado Railroad abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated. Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel."

(...)

"The chief may have taken this opinion to send a message to the [solicitor general] that it should not be making arguments that depend on a complete about-face from prior arguments that have formed the basis for long-standing precedent," said Tim Bishop of Mayer Brown, a Supreme Court industry advocate who's not involved in the Brandt case. "Someone at [the Department of Justice] should have stood up to [the Bureau of Land Management] and Interior and explained that there was no plausible basis for arguing that the right of way was more than an easement." Source

xzins: We need a ping list and keeper of. I nominate you. :) I have the SCOTUS ping list and can ping them when necessary regarding "Supreme Court doctrine." (I think I like that phrase.)

[Scoutmaster]

Thank you for those cases.

I'll note that parties take diametrically opposed positions in subsequent litigation that involve seemingly identical facts to previous litigation. The parties attempt to differentiate the facts of the case at issue from the underlying facts of the previous litigation or to argue that public policy has changed.

Differentiation of facts is what has given us exceptions and nuances in legal interpretation, as well as being the basis for much or most common law.