Argument Preview / Panel Activity

One case being argued in November at the Federal Circuit attracted two amicus briefs. That case is Behrens v. United States, which concerns a claim the federal government was liable for taking land for public use through the National Trails System Act. Specifically, in this case, the Federal Circuit will review the determination by the Court of Federal Claims that the plaintiffs were not entitled to compensation because the scope of the easement in question was broad enough to encompass railbanking and the construction of a hiking and biking trail. This is our argument preview.

In their opening brief, the Behrens make two points. First, they argue “[t]he CFC’s ruling on [the] scope [of the easements] was error[eous] because it is contrary to Missouri’s voluntary grant statute, numerous precedents from several Missouri courts and the Eighth Circuit interpreting Missouri law, and basic property law that an easement, by definition, has to be for a particular purpose.” On this point, the Behrens maintain that the decision was erroneous “because all of the easements granted to the railroad were ‘for the construction of the railroad’ as set forth in Missouri’s statute, which meant that the scope of the voluntary grants was limited to railroad purposes” not for the purposes of railbanking and the construction of a hiking and biking trail. Second, the Behrens advance an alternative argument based on abandonment that the CFC declined to address. The Behrens argue that the CFC abused its discretion by declining to rule on the abandonment argument because “justice requires that Plaintiffs should have been allowed to supplement their two prior motions and good cause also exists because the issue had already been briefed on two prior occasions and the Court never ruled.”

The United States in its response brief makes its first argument that Missouri’s statute governing voluntary grants “does not restrict property acquired by voluntary grant to use for railroad construction, maintenance, and operations only.” Rather, says the government, the statute “broadly allows railroads to take and hold any real estate voluntarily granted to them to ‘aid in the . . . accommodation of . . . railroads.'” Moreover, it asserts, “[w]hile interim trail use serves public recreational interests in addition to railroad purposes, the interim use ‘aid[s] in the . . . accommodation of railroads’ by preserving rail corridors for future railroad use.” In its second argument, the United States asserts “[t]he CFC did not abuse its discretion in declining to consider Plaintiffs’ alternative takings theory that the relevant easements expired (for all purposes) via abandonment before STB issued the NITU.” According to the government, “Plaintiffs deliberately chose not to pursue their alternative theory in their motion . . . on the view that the alternative theory had become ‘moot’ (or unnecessary).”

The Behrens, in their reply brief, reassert the arguments they made in their opening brief. For example, they maintain “[t]he government’s argument is flatly contrary to Missouri’s ‘voluntary grant’ statute, and numerous Missouri cases interpreting the statute, that conclude that any conveyance to a railroad for nominal consideration conveys an easement to the railroad that is limited in scope to railroad purposes only as a matter of law.”

Professor James W. Ely, Jr. submitted an amicus brief to the court in favor of the Behrens. Ely argues the CFC “erred when [it] concluded Missouri recognizes the notion of an ‘unrestricted’ easement because [the judge] wrongly believed a conveyance granting an easement to a railroad for construction and operation of a railroad burdened the owner’s land with a right of anyone to use the owner’s land for any purpose.” Moreover, Ely asserts, the CFC’s holding that “‘Missouri law does not support a presumption that easements conveyed to a railroad by voluntary grant are limited in scope to railroad purposes only'” is contrary to property law because railroads are “established for a specific purpose intended by the railroad and the landowners at the time the right-of-way easement was established.”

The Missouri Farm Bureau Federation also submitted an amicus brief to the court in favor of the Behrens. The Farm Bureau argues that “[t]he government is liable for a taking when it issues an order, such as the [Notice of Interim Trail Use], invoking the provision of the Trails Act that expressly preempts state law inconsistent with the Trails Act.” Moreover, the Farm Bureau asserts, “[t]he Federal Circuit has repeatedly held recreational trail use is not within the scope of an easement for railroad purposes.”

This case will be argued on Wednesday, November 2. We will report on any developments.