Last week, the Federal Circuit heard oral argument in Behrens v. United States, which involves a claim that the federal government is liable for taking land for public use through the National Trails System Act. In this case, the Behrens appealed a 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. Judges Dyk, Taranto, and Hughes heard the oral argument. This is our argument recap.
Thomas Stewart argued for the Behrens. He began by asserting the CFC’s ruling that the scope of the easement was broad enough to encompass hiking and biking trails was erroneous because it ignored precedent and the language of the relevant statute. One judge asked about the government’s argument that preserving the railroad for future railroad use is covered by the easement. Stewart responded that the government interprets the statute too broadly because railbanking does not constitute a railroad purpose. Moreover, he asserted, speculative future railroad use has not been permitted in past cases. Stewart also cited precedent that found railroad purposes to include only construction, maintenance, and operations. He asserted this finding means, in the present case, that the railroad ceased using the easement in question when the railroad petitioned for abandonment. One judge then asked why railbanking cannot constitute a railroad purpose. Stewart responded that the statute says the easement can be used only for maintenance, preservation, accommodation, or operation of the railroad, which does not encompass railbanking.
Stewart then argued the CFC ignored extrinsic evidence that the voluntary grant conveyed an easement that must be used for a specific purpose under property law. Moreover, he asserted, the CFC insisting that the easement was open-ended for any purpose contradicts basic property law. In response, one judge asked whether the original grantor’s intent matters in this case. Stewart responded that intent is irrelevant because of the relevant statute.
John Smeltzer appeared for the government. He presented three arguments why the CFC correctly held that the railbanking could not cause a taking from the Behrens.
First, Smeltzer argued that the deeds at issue in this case are unrestricted land grants that are subject only to the voluntary grant statute, not the grantor’s intent.
Second, he argued, the land grants aid in accommodation of the railroad. One judge asked if no present or future railroad has shown any interest in reserving service for the railroad, then how can the hiking and biking trails be for a railroad purpose. Smeltzer responded that the statute’s legislative intent indicates the purpose is to maintain and preserve the railroad for possible reactivation in the future because Congress was concerned with losing railroads permanently. Another judge asked what the statute says about future railroad use. In response, Smeltzer asserted that, in the past, corridors that have been put in railbanking have been reactivated. Moreover, he asserted, the purpose of the statute is to maintain the railroads for interim periods.
Third, Smeltzer asserted that the Missouri statute controls the scope of the easement and the court should not look to extrinsic evidence. One judge then asked if this case all comes down to statutory interpretation, how does “accommodation” include railbanking. Smeltzer responded that there are no cases discussing the “accommodation” language in the statute. However, he asserted the Missouri Constitution declares railroads to be public highways, which means they are intended for public use and the interim trail use is consistent with what the public expects.
One judge asked about the abandonment claim the CFC said the Behrens forfeited. Specifically, the judge asked whether the CFC found they forfeited the abandonment claim just because the Behrens were late in raising it. Smeltzer responded that the abandonment claim is an alternative claim, and anyway if the government prevails on the railbanking use argument then the abandonment claim does not matter.
In rebuttal, Stewart cited precedent allegedly holding that the legislature intended to interfere in the dealings with the railroad companies and landowners and to protect the latter if the railroad was never constructed or if it was abandoned. Moreover, he argued, the Missouri Supreme Court has stated that accommodations deal only with operations of railroads, not trail use.
We will continue monitoring this case and report on developments.