Argument Recap

Earlier this week the Federal Circuit heard oral argument in Albright v. United States, a case we have been following because it attracted an amicus brief. In this case, owners of land in Oregon assert that the United States Surface Transportation Board violated the Takings Clause by converting a railway easement to a recreational trail. The court addressed the holding by the Court of Federal Claims “that the [relevant] deeds conveyed fee simple title from Plaintiffs’ predecessors-in-interest to the railroads, such that Plaintiffs have no compensable property interest on which to base takings claims.” Chief Judge Prost and Judges Taranto and Linn heard the oral argument. This is our argument recap.

Thomas S. Stewart argued for the appellant land owners. He began with a roadmap of the land owners’ argument: First, to ascertain the “intent of the parties,” Stewart explained, the court must “look to the law and the surrounding circumstances” including “the statutes,” “the common law,” and “the railroad charter” at the time of the conveyance. Second, Stewart continued, the deeds were “all executed under the compulsion of eminent domain and the clear purpose of each deed was to merely confirm a grant to utilize the strip of land for the construction and operation for a railroad, which is a limited purpose under Oregon law, that creates a presumption of an easement by itself.” Third, he continued, each of the deeds at issue “contain several other indicia that indicate and confirm that the grantors merely intended to grant an easement.” Thus, Mr. Stewart argued, “the CFC erred in holding that the deeds at issue conveyed fee title because they conveyed title under the compulsion of eminent domain.”

Judge Linn asked Stewart to address the government’s contention that an Oregon statute creates a presumption of a fee conveyance. Stewart argued that the “government’s reliance on a presumption of fee is fictitious.” He explained that the Supreme Court of Oregon has discounted the relevant statutory language. Stewart further submitted that the Federal Circuit has endorsed this view of the Supreme Court of Oregon by citing the relevant Oregon case.

Anna T. Katselas argued for the government. She similarly began with a quick overview of the government’s position in the case. She argued that “the CFC correctly ruled that the [Plaintiff land owners’] taking claims cannot proceed because [they] failed to establish that they possessed compensable property interest under Oregon law.” Further, she asserted, “Oregon law is quite clear that there is a statutory presumption of a fee conveyance.” Before she could move beyond these initial remarks, however, Judge Taranto interrupted to ask her to address the Supreme Court of Oregon’s decision that allegedly discounted the significance of the relevant statute. Katselas responded by explaining that the Supreme Court of Oregon “did not abolish or overrule the statute.”

Katselas relied upon a case decided by the Supreme Court of Oregon. She explained that in that case the court held that a lumber company was granted fee title for land upon which it built a railroad, and she emphasized that the conveyance deeds in that case were similar to the deeds at issue in this case. After questioning from Judge Taranto, Katselas argued that it did not matter that the previous case involved a lumber company instead of a railroad company with the power of eminent domain. She explained the lumber company still built a railway through the land of other property owners.

In rebuttal, Stewart reiterated that the CFC “did not discuss the surrounding circumstances and the common law” of Oregon at the time of the conveyance of the deeds. Furthermore, Stewart distinguished the government’s case by explaining that, even though the lumber company did build a railway, “the lumber company did not have the power of eminent domain, which throws out the concept of compulsory consent.” After Judge Taranto questioned this distinction, Stewart emphasized that, regardless, “inexplicably, the CFC disregarded three” of the relevant factors required to be considered under Oregon law, and concluded that that “is a fundamental error in and of itself.”

We will keep track of this case and report on its disposition.