In the Supreme Court of the United States
GARY E. ALBRIGHT, ET AL., Petitioner,
UNITED STATES OF AMERICA, Respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit
Brief of the Cato Institute, National Association of Reversionary Property Owners, Reason Foundation, Southeastern Legal Foundation, and Property Law Professors Shelley Ross Saxer and James W. Ely, Jr., as Amici Curiae
In Support Of Petitioners
The Federal Circuit erred by not certifying this novel question of state law to the Oregon Supreme Court. The Federal Circuit erred further when it wrongly guessed how Oregon’s highest court may decide this question of Oregon property law. See Arizonans for Official English v. Arizona, 520 U.S. 43, 78-79 (1997). Contrary to this Court’s guidance in Arizonans, Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and Railroad Comm’n of Texas v. Pullman, 312 U.S. 496 (1941), the Federal Circuit did not certify (or abstain from deciding) a novel question of Oregon property law. Instead of certifying this question, the Federal Circuit made an Erie-guess about how it believed Oregon’s highest court might decide this unsettled question of Oregon law.
In doing so, the Federal Circuit unsettled Oregon property law and undermined the certainty of land title contrary to this Court’s admonition in Leo Sheep Co. v. United States, 440 U.S. 668, 687-88 (1979) (“This Court has traditionally recognized the special need for certainty and predictability where land titles are concerned, and we are unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation.”).
This is a Trails Act taking case involving issues of Oregon state property law. The federal government converted an otherwise abandoned railroad right-of-way into a public park. But for the federal government’s order invoking section 8(d) of the Trails Act, these Oregon landowners would have enjoyed unencumbered title to, and exclusive possession of, their land. But, because the government invoked the Trails Act, these landowners lost their state law right to their land. Preseault I, 494 U.S. at 8 (section 8(d) “gives rise to a takings question in the typical rails-to-trails case because many railroads do not own their rights-of-way outright but rather hold them under easements or similar property interests”).
Had it not been for the Board’s order invoking section 8(d) of the Trails Act, these Oregon landowners would have unencumbered use and possession of their land. See Brandt, 572 U.S. at 104-05 (“if the beneficiary of the easement abandons it, the easement disappears, and the landowner resumes his full and unencumbered interest in the land”). The Board’s invocation of section 8(d) of the Trails Act encumbered these owners’ land with a new and different easement. See Trevarton v. South Dakota, 817 F.3d 1081, 1087 (8th Cir. 2016) (“Congress and the Trails Act intended to convey to the interim trailuser a property interest that includes the right to use the acquired right-of-way for recreational trail purposes. …[A]s a matter of federal law it granted ‘a new easement for a new use.’”) (quoting Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en banc) (Preseault II)).
This Court recently emphasized the obligation the government owes private landowners when the government imposes an easement across owners’ land. In Cedar Point Nursery v. Hassid, this Court held that “[w]hen the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation.” 141 S.Ct. 2063, 2071 (2021). This Court further explained that the “government commits a physical taking *** when the government physically takes possession of property without acquiring title to it.” Id. This sort of “physical appropriation[ ] constitute[s] the ‘clearest sort of taking,’ and we assess them using a simple, per se rule: The government must pay for what it takes.” Id. And, this Court continued, “even if the Government physically invades only an easement in property, it must nonetheless pay just compensation.” Id. at 2073.
The Federal Circuit erred in its application of Oregon law and held the government did not take an easement across these Oregon landowners’ property. Oregon law provides that a railroad may obtain only that interest necessary to carry out its chartered purpose – by either its eminent domain power or by conveyance. Oregon case law and scholarly interpretation of that law (relied by the Oregon Supreme Court) further explain that deeds conveying a “strip of land” as surveyed/located across the grantor’s land convey only an easement.
This Court should grant certiorari because the Federal Circuit violated foundational principles of federalism when it refused to certify a novel issue of state law to the state’s highest court.
In a similar Trails Act case Federal Circuit Judge Moore observed “given what an awful job we obviously do of interpreting state law, why don’t we just send this [case] to [the state court], so that we don’t make another mistake?” The Federal Circuit should have followed Judge Moore’s advice.
The Federal Circuit’s refusal to certify questions of state law violates this Court’s guidance and is out of step with the other circuits. This case provides the opportunity for this Court to direct lower federal courts when they should (indeed must) certify unsettled questions of state law to the state’s highest court. This guidance is especially needed in the Federal Circuit because Congress granted the Federal Circuit exclusive national jurisdiction of every Fifth Amendment taking case against the United States, and inverse condemnation cases most often involve interpretation of state property law.