Free Motion for Partial Summary Judgment - District Court of Federal Claims - federal

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 9th day of June, 2006, I electronically filed the foregoing Defendant's Appendix of Exhibits Filed in Support of Defendant's Motion for Summary Judgment and Supporting Memorandum as to the Category 1 Lands through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected in the Notice of Electronic Filing: Cecilia Fex, Attorney for Plaintiffs [email protected] Nels J. Ackerson, Attorney for Plaintiffs [email protected] Lary C. Walker [email protected]

/s/ Kristine S. Tardiff E-mail: [email protected]

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Murray D. Feldman (Idaho State Bar No. 4097) HOLLAND & HART LLP Suite 1400, U.S. Bank Plaza 101 South Capitol Boulevard Post Office Box 2527 Boise, Idaho 83701 Telephone: (208) 342-5000 Facsimile: (208) 343-8869 [email protected] Richard A. Allen (District of Columbia State Bar No. 160523) Zuckert Scoutt & Rasenberger, L.L.P. 888 Seventeenth Street, N.W., Suite 700 Washington, D.C. 20006-3309 Telephone: (202) 298-8660 Facsimile: (202) 342-0683 [email protected] Andrea Ferster (District of Columbia State Bar No. 384648) General Counsel Rails-to-Trails Conservancy 1100 17th Street, N.W. Washington, D.C. 20036 Telephone: (202) 974-5142 Facsimile: (202) 331-9680 [email protected] Attorneys for Amicus Curiae Rails-To-Trails Conservancy IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ) ) ) ) ) ) ) ) ) ) ) )

ROBERT HASH and GERLENE HASH, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

Case No. CV99-324-S-MHW BRIEF OF AMICUS CURIAE RAILS-TO-TRAILS CONSERVANCY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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This case is on remand to this court from a decision of the United States Court of Appeals for the Federal Circuit dated April 4, 2005. Amicus Curiae Rails-to-Trails Conservancy ("RTC")1 submits this memorandum in support of the motion for summary judgment filed by Defendant United States of America ("United States" or "Government") on the issue of the liability of the United States to "Category 1" Plaintiffs.2 Category 1 Plaintiffs are those with asserted interests in land subject to rights-of-way initially granted by the United States to the Pacific and Idaho Northern Railroad Co., predecessor to the Union Pacific Railroad Company, (collectively, the "Railroad") pursuant to the General Railroad Right-of-Way Act of 1875, codified at 43 U.S.C. §§ 934-939 ("the 1875 Act"). As explained below, the railbanking of those rights-of-way pursuant to 16 U.S.C. § 1247(d), the federal railbanking law, is consistent with the easement granted to the Railroad under the 1875 Act. Accordingly, as a matter of law there has been no abandonment of that easement and therefore no taking of any interests of plaintiffs in Category 1 requiring compensation. The Interest Of Amicus RTC RTC is a non-profit corporation formed in 1985, with more than 100,000 members and supporters nationwide, dedicated to assisting state and local governments and other organizations in preserving otherwise to be abandoned railroad corridors for By order dated December 6, 1977 (Docket #11), the Court granted RTC's motion to participate in this case as amicus curiae on the issues of class certification and the "merits of Plaintiffs' request for a determination of liability against the United States." The current motion addresses the merits of that liability issue.
2 1

The Government's summary judgment motion with respect to Category 1 Plaintiffs is being filed pursuant to the Court's scheduling order of April 26, 2006.
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continued public use. RTC is acutely interested in the construction of federal statutes applicable to federally-granted railroad right of way ("FGROW"). On the one hand, RTC has purchased, or contracted to purchase, a number of railroad lines containing FGROW for trail and related preservation purposes, and thus has a direct economic stake in some FGROW properties. But more broadly, RTC is concerned that the public's substantial investment in these transportation corridors is fostered and preserved for continued public transportation uses, as Congress has provided in statutes governing use and disposition of FGROW. Statement Of The Case This case involves claims for compensation by property owners for alleged takings of property interests arising out of the operation of federal legislation enacted in 1983, 16 U.S.C. § 1247(d), commonly known as the "Rails-to Trails Act."3 The Rails-

to-Trails Act was enacted to preserve railroad corridors for future rail use that might otherwise be abandoned. It does so by establishing a process of "railbanking" by which railroads desiring to cease rail operations over specific lines for the present can, instead of "abandoning" the lines, convey them to qualified users for interim use as recreational trails until such time as the railroad may wish to reactivate rail service. The Rails-toTrails Act provides that "if such interim use [as a trail] is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of

Pub. L. No. 98-11, § 208, 97 Stat. 42, 48. The Rails-to-Trails Act was enacted as part of the National Trails Systems Act Amendments of 1983, and it is codified at 16 U.S.C. § 1247(d).
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any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes." 16 U.S.C. § 1247(d). See generally, Preseault v. ICC, 494 U.S. 1 (1990).4 The Plaintiff class in this case is comprised of persons who own land adjacent to an 83.1 mile railroad corridor formally owned by the Railroad between the towns of Weiser and Rubicon in Washington County, Idaho. The Surface Transportation Board ("STB") issued a Notice of Interim Trails Use ("NITU") on December 28, 1995, authorizing the Friends of the Weiser River Trail, Inc. to negotiate an interim trail use agreement with the Railroad pursuant to 16 U.S.C. § 1247(d). The Plaintiffs claim to have property interests in the corridor, which they allege were taken by the interim trail use agreement, thereby entitling them to compensation under the Takings Clause of the Fifth Amendment. On July 7, 2000 (Docket #39), this Court certified this case as a class action, and then proceeded to determine the Railroad's property rights along this 83-mile corridor. The parties stipulated that the railroad corridor had been pieced together in the nineteenth century by a combination of private deeds conveying land from landowners,

4

In Preseault, the Supreme Court held that the Rails-to-Trails Act was a constitutional exercise of Congress' Commerce Clause power. The Court did not reach the question whether it might effect a taking for which the Fifth Amendment would require compensation, but held that if it did effect a taking, the Tucker Act would provide a remedy to affected property owners. 494 U.S. at 15-17. In a later Tucker Act suit by the Preseaults, a plurality opinion of the Federal Circuit indicated that the Rails-to-Trails Act will effect a taking if, in the absence of the Rails-to-Trails Act, the actions of the railroad would have resulted in an abandonment of the railroad's easement and a reversion of the underlying property to the adjacent landowner. Preseault v. United States, 100 F.3d 1525, 1550-52 (Fed. Cir. 1996). But see, Preseault v. United States, 853 F.2d 145, 151 (2d Cir. 1988), aff'd on other grounds, 494 U.S. 1 (1990).
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by adverse possession, and by federal grant under the 1875 Act.5 The parties divided the Plaintiff class into categories depending upon the types of conveyance by which different parts of the corridor were originally conveyed to the Railroad, and asked the Court to determine the nature of the property interests conveyed to the Railroad and the interests, if any, retained by the original grantors. By memorandum decision issued on November 27, 2001 (Docket #88), the Court held that adjacent landowners did not have any property rights in those parcels obtained by 1875 federal grants (Category 1 Plaintiffs) because any interests not conveyed to the Railroad were retained by the federal government and were disposed of according to the 1988 Amendments to the National Trails Systems Act, 16 U.S.C. § 1248(c). The Court also held that the parcels of land obtained by the Railroad by adverse possession were acquired in fee simple, and that all but a handful of the private deeds conveyed fee simple title to the Railroad as well. Most of Plaintiff's claims were therefore dismissed. By an order entered on March 10, 2003 (Docket #107), the Court entered final judgment on the claims of the those members of the Plaintiff class whom the Court found in its 2001 decision held no property interests in the railroad corridor and therefore no valid taking claim. The Court found that final judgment under Fed. R. Civ. P. 54(b) as to those claims was appropriate, observing that "[t]he very nature of this case turns on legal issues." (Docket #107 at 7.)

The 1875 Act was repealed as a basis for granting new railroad rights of way effective October 21, 1976, by Pub. L. No. 94-579, Title VII, § 706(a), 90 Stat. 2793. The repeal is not relevant to the discussion herein.
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The Plaintiffs appealed that judgment to the Federal Circuit, which, on April 4, 2005, issued a decision reversing the judgment in part, vacating in part, and remanding for further proceedings. Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005). With respect to Category 1 Plaintiffs, the Federal Circuit held that this Court erred in holding that the United States retained the reversionary interest in the land underlying the Railroad's right-of-way; the Federal Circuit held that owners of the adjacent land, not the Government, owned the land underlying the right-of-way. The Federal Circuit concluded: "On the railway's abandonment of its right-of-way these owners were disencumbered of the railway easement, and upon conversion of this land to a public trail, these owners' property interests were taken for public use, in accordance with the principles set forth in the Preseault cases. On remand, the district court shall determine just compensation on the conditions that apply to these landowners." Hash, 403 F.3d at 1318. The Federal Circuit also vacated this Court's ruling that various private deeds conveyed a fee simple interest in the right-of-way to the Railroad. The Federal Circuit remanded that aspect of the ruling for reconsideration in light of the Idaho Supreme Court's subsequent decision in Neider v. Shaw, 65 P.3d 525 (Idaho 2003). Hash, 403 F.3d at 1321. The proper interpretation of those deeds is not addressed by the Government's present motion for summary judgment or this brief.

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Argument I. The Threshold Issue On Remand Is An Issue Of Federal Law: Whether The Rights-Of-Way Granted By The 1875 Act Were Abandoned By Railbanking And Interim Trail Use. In remanding the Category 1 issues to this Court, the Federal Circuit stated that "[o]n the railway's abandonment of its right-of-way these owners were disencumbered of the railway easement, and upon conversion of this land to a public trail, these owner's property were taken for public use." Hash, 403 F.3d at 1318 (emphasis added). Before it can be determined that the property interests of Category 1 Plaintiffs have been taken, therefore, there is a critical threshold issue that was not decided by the Federal Circuit and that has yet to be determined: namely, whether the Railroad's right-of-way was in fact abandoned by the railbanking and interim trail use of those portions of the right-ofway conveyed to the Railroad under the 1875 Act. If, as RTC and the Government contend, the scope of the legal rights conveyed to the Railroad by the 1875 Act includes using the right-of-way not only for present railroad operations but also for railbanking for future rail operations as well as other public right-of-way uses, including interim use as a public trail, then the railroad's conveyance of the right-of-way to the Friends of the Weiser River Trail, Inc. for those purposes and the use of it for those purposes are consistent with the right-of-way and are not an abandonment of it. Thus, a determination that the Government did not retain the reversionary interests in rights-of-way conveyed under the 1875 Act does not resolve the issue whether the Railroad abandoned its right-of-way upon conveying the right-of-way to a qualified entity under the Rails-to-Trails Act for railbanking and interim trail use, as the Court of Claims recently ruled in Beres v. United States, 64 Fed. Cl. 403 (2005). In that
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case, the Court of Claims ruled, like the Federal Circuit in this case, that the United States did not retain a reversionary interest in rights-of-way granted under the 1875 Act. The court, however, stated: "That result, however, by no means resolves the case before the court. There remain numerous issues to resolve before this court can determine if the plaintiffs are entitled to compensation, including resolution of the successor in title to the land and whether or not there was an abandonment." 64 Fed. Cl. at 428 (emphasis added). The scope of the easement conveyed to the Railroad by the 1875 Act and whether that easement was abandoned by railbanking and interim trail use were not issues presented to the Federal Circuit by the Plaintiffs' appeal in this case (since they had not been decided by this Court in the decision appealed by the Plaintiffs), and they were not briefed by the parties or discussed or decided by the Federal Circuit's opinion. The only Category 1 issue presented to the Federal Circuit was, as the court's opinion indicates, whether "the ownership of the underlying land remained with the United States for lands subsequently patented to settlers under the Homestead Act." Hash, 403 F.3d at 1313. Inasmuch as the parties, on the Plaintiffs' appeal, never briefed or had reason to brief the scope of the easement conveyed by the 1975 Act and whether it was abandoned, it would have been a violation of due process for the court to have decided that issue. See, e.g., Jenkins v. Missouri, 216 F.3d 720, 726 (8th Cir. 2000); Doubleday & Co. v. Curtis, 763 F.2d 495, 502 (2d Cir. 1985). What legal interests were conveyed to the railroad by the 1875 Act, a federal statute, and whether those interests were abandoned by railbanking and interim trails use pursuant to the Rails-to-Trails Act are, of course, issues of federal law. For example, in
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Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 270 (1903), the Court, in upholding the rights of a railroad under a 1864 federal statute against a person claiming title under a state adverse possession law, stated: "And depending, as this question does, upon the nature and effect of the acts of Congress, its solution necessarily involves a Federal question." See also Nicodemus v. Union Pacific Corp., 440 F.3d 1227, 1234-37 (10th Cir. 2006). State court decisions concerning the scope of rights-of-way granted by private deeds or by state laws may be instructive in resolving that issue, but the question is ultimately one of federal law. In that regard, the 1875 Act issues in this case differs from the issues presented in most takings cases arising out of the operation of the Rails-to-Trails Act, which usually turn on state law issues concerning the scope of property rights granted to railroads by private deeds or operation of state laws and whether those rights were abandoned. For instance, in Preseault, 494 U.S. at 8, the Supreme Court observed that "[s]tate law generally governs the disposition of reversionary interests." (Emphasis added.) In this case, all of the property interests involved were originally conveyed to the Railroad and the Plaintiffs' predecessors from the public lands of the United States pursuant to federal statutes, and the general rule is not applicable; rather, the scope of those interests are solely matters of federal law. Furthermore, the 1875 Act issues in this case are solely issues of law. They do not turn on any disputed issues of fact. As the Court observed in its March 7, 2003, opinion, "[t]he very nature of this case turns on legal issues." (Docket #107 at 7.) The issues may therefore properly be resolved by summary judgment.

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II.

The Rights-Of-Way Granted By The 1875 Act Authorized Their Use For Railbanking And Interim Trail Use And Were Not Abandoned By Their Conveyance And Use For Those Purposes. A. The Scope Of The 1875 Act Easement Is Defined By The Act Itself, Which Does Not Restrict The Use Of The Right Of Way To Railroad Uses Only.

In its November 27, 2001 Memorandum Decision, this Court, in discussing the language in deeds at issue in Category 5, observed: "When a deed to any grantee contains a granting clause that conveys a `right-of-way,' the deed generally will be interpreted as conveying an easement. However, the mere mention of the term `right of way' does not necessarily constitute the conveyance of an easement limited to railroad purposes." (Docket #88, Mem. Decision at 11-12.) That observation is equally pertinent to the granting language of the 1875 Act.6 In the case of federally granted right-of-way, the scope of an easement conveyed under the 1875 Act turns, not on the language of any instrument of conveyance, as there is none, but on the language of the federal statutes authorizing the railroad's acquisition of the corridor. Thus, the starting point for determining the scope of the interests conveyed by the 1875 Act is, of course, the language of the statute itself.7 The Act, now codified in 43 U.S.C. § 934, provides:

6

The relevance of the Court's observation to the issue of the scope of the easements conveyed by the 1875 Act is not affected by the Federal Circuit's decision vacating the Court's ruling that Category 5 deeds conveyed fee simple interests and remanding that ruling for reconsideration in light of the Idaho Supreme Court's subsequent decision in Neider v. Shaw, 65 P.3d 525 (Idaho 2003).

The Act was repealed in 1976 insofar as authorizing new rights of way after that date, see supra note 5, but its terms remain applicable to rights of way granted under the Act before that date.
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The right of way through the public lands of the United States is granted to any railroad company duly organized under the laws of any State or Territory, except the District of Columbia, or by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road. Perhaps most significantly, the language of the statute simply granted a "right of way" two hundred feet wide to specified railroad companies. This language makes clear that, while the principal purpose of the grant was to promote the construction of railroads across federal lands, nothing in the language of the statute limits the use of the granted right-of-way to railroad uses or indicates that the right-of-way was to be granted only for the purpose of constructing and operating a railroad. Notably, the Supreme Court has declined to graft implied restrictions on other rights granted by the 1875 Act. In United States v. Denver & Rio Grande Ry. Co., 150 U.S. 1 (1893), for example, the Court rejected the Government's argument that § 934 granted railroads the right to take timber and other materials from public lands adjacent to the right of way only if they were taken from locations near the construction site but not from locations far away from the construction site. The Court observed: "If congress had intended to impose any such restriction upon the use of timber or other material taken from adjacent public lands it should have been so expressed." 150 U.S. at 11. The same

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observation applies to of any contention that the rights-of-way granted by the 1875 Act are limited to railroad uses. In this respect, moreover, the language of the 1875 Act granting the rights-of-way contrasts significantly with language in other federal statutes granting rights-of-way to railroads. For example, the Act of July 1, 1862, 12 Stat. 489, authorizing the transcontinental railroad, provided in Section 2: "That the right of way through the public lands be, and the same is here granted to said company [the Union Pacific Railroad] for the construction of said railroad and telegraph line[.]" (Emphasis added.) In United States v. Union Pacific R.R. Co., 353 U.S. 112, 114 (1957), the Supreme Court specifically noted that "this right of way was granted Union Pacific `for the construction of said railroad and telegraph line.' § 2. That purpose is not fulfilled when the right of way is used for other purposes." No such qualification is contained in the language of the 1875 Act. Although not controlling on this issue of federal law, a very thoughtful and instructive decision relevant to the proper interpretation of the language of § 934 is the Maryland Court of Appeals (Maryland's highest court) decision in Chevy Chase Land Co. v. United States, 733 A.2d 1055 (Md. 1999). In that case, a railroad acquired a rightof-way in 1911 for $4,000 from the Chevy Chase Land Company pursuant to a deed which conveyed to the railroad "a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated." Id. at 1065. The Maryland Court of Appeals, in construing the deed as a matter of Maryland law, held that the deed did not convey a fee simple interest to the railroad but only an easement--a right of passage--over the land company's property. Id. at 1071-72. The court, however,
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rejected the land company's argument that it had conveyed an easement that only authorized railroad operations by the grantee and its heirs and assigns. Id. at 1073-74. Although the deed conveyed the easement expressly to an identified railroad, the court rejected the land company's argument that "when a right-of-way is conveyed to a railroad, it is ipso facto restricted to railroad uses." Id. at 1072. The court acknowledged that "the circumstances clearly indicate that the original instrumentality was a railroad," but it said that "nowhere does the language `for railroad purposes' appear, and there are no other express limitations on the use of the right of way." Id. at 1073. The court cited a ruling to the same effect by the Minnesota Supreme Court which addressed the scope of an easement granted to a railroad and held: [N]one of the deeds expressly limit the easement to railroad purposes, provide that the interest conveyed terminates if use for railroad purposes ceases, or provide that the easement would exist only for so long as the right-of-way was used for railroad purposes. While the grantors were undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes. Id. (quoting State ex rel. Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543, 546 (Minn. 1983)). The Maryland court in Chevy Chase Land Co. went on to hold that the easement conveyed to the railroad was broad enough to encompass use of the right of way as a trail. 733 A.2d at 1074-1079. Based on this interpretation of the railroad's property interest, the Federal Circuit found that the subsequent conveyance of the right-of-way for railbanking and interim trail use under the Rails-To-Trails Act was within the scope of the railroad's property interest, and therefore resulted in no taking of any property interest

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of the land company. Chevy Chase Land Co. v. United States, 230 F.3d 1375 (table), 1999 WL 1289099, *3 (Fed. Cir. Mar. 27, 2000) (unpublished opinion). The analyses of the courts in Chevy Chase Land Co. and State ex rel. Washington Wildlife Preservation are very pertinent to the scope of the easement conveyed to the Railroad by the 1875 Act. As with the deeds in those cases, § 943 conveyed rights-ofway to railroads with the clear purpose to promote railroad use and construction. But also, like those deeds, nothing in § 934 expressly limited use of the right of way to railroad purposes or provides that the easement will exist only so long as it is used for railroad purposes. The same analysis supports the conclusion that the easement conveyed to the Railroad by the 1875 Act in this case was not limited to railroad operations but encompasses other transportation uses, including railbanking and interim trail use. Several other considerations strongly support the conclusion that the easement conveyed to the Railroad by the 1875 Act is not limited to railroad uses and encompasses railbanking and interim train use. The first is that a principal purpose of the conveyance of the Railroad's right-of-way under the terms of the Rails-to-Trail Act is to preserve the availability of precious and rapidly shrinking transportation corridors for future railroad operations. In Preseault v. ICC, 494 U.S. at 5-6, 17-19, the Court discussed this purpose and rejected the contention that it was not genuine or valid, stating: "To the contrary, Congress apparently believed that every line is a potentially valuable national asset that merits preservation even if no future rail use for it is currently foreseeable." Id. at 19. That purpose is clearly consistent with, and indeed furthers, the general purpose of the

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1875 Act.8 Accordingly, the Supreme Court's admonition that the 1875 Act "is to be liberally construed to carry out its purposes," Great Northern, 315 U.S. at 272, supports the conclusion that the rights-of-way granted by that Act include railbanking and interim trail use. Another principle supporting that conclusion, also endorsed in Great Northern, is that "the Act is also subject to the general rule of construction that any ambiguity in a grant is to be resolved favorably to the sovereign grantor, " id., namely, the United States. In some cases, that rule may militate in favor of a narrow construction of the rights granted to the grantee, but in cases involving railbanking and trail use under the Rails-toTrails Act, the opposite is true. In such cases, the United States, through its legislative branch, enacted the 1875 Act to grant interests in federal lands for the purpose of promoting railroad development, and the same sovereign also enacted the Rails-to-Trail Act to preserve for the future the rail corridors created in large part by the earlier Act. It is therefore in the interests of the United States to resolve any doubts about the scope of
8

The Rails-to-Trails Act provides that a right-of-way will not be deemed to be abandoned by interim use as a trail only if such "interim use is subject to restoration or reconstruction for railroad purposes." 16 U.S.C. § 1247(d). Surface Transportation Board regulations require that trail use agreements between railroads and trail users contain this condition, 49 C.F.R. § 1152.29(a)(3), and a number of rights-of-way have been reconverted to railroad use. See, e.g., BG & CM R.R.--Exemption, Finance Docket No. 34399, 2003 WL 22379168 (S.T.B. Oct. 17, 2003); Georgia Great S. Div., South Carolina Cent. R.R. Co.--Abandonment & Discontinuance Exemption--Between Albany & Dawson, In Terrell, Lee, & Dougherty Counties, GA, Docket No. AB-389 (Sub-No. 1X), 2003 WL 21132515 (S.T.B. May 16, 2003); Missouri Pacific R.R. Co.-- Abandonment Exemption--In St. Louis County, MO, Docket No. AB-3 (Sub-No. 98X), 1997 WL 201480 (S.T.B. April 25, 1997); Norfolk & Western Ry. Co.--Abandonment Between St. Marys & Minster In Auglaize County, OH, 9 I.C.C.2d 1015, 1017 (1993); Iowa Power, Inc.--Construction Exemption--Council Bluffs, IA, 8 I.C.C.2d 858, 866 (1990). Given the serious capacity constraints now facing the nations' railroads, more such reconversions are likely in the foreseeable future.
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the rights-of-way granted by the 1875 Act in favor of the conclusion that they encompass railbanking and interim trail use. B. Subsequent Federal Statutes Have Clarified The Broad Scope Of 1875 Act Easements By Specifically Authorizing Continued Use Of The Rights-Of-Way For Public Highway And Trail Use.

Subsequent congressional enactments leave no doubt that Congress intended and desired that the rights-of-way granted by the 1875 Act be used not just for railroad operations, but more broadly for use as public highways and trails. The Supreme Court, in construing the 1875 Act in Great Northern Ry. v. United States, 315 U.S. 262, 272 (1942) stated: "It is settled that `subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject.'" (quoting Tiger v. Western Investment Co., 221 U.S. 286, 309 (1911)). These subsequent statutes make clear that Congress clearly in the 1875 Act to convey a very broad grant of a "right of way." In particular, 43 U.S.C. § 913 authorizes use of federally-granted rights-of-way for "public highway" purposes, except for the 50 feet on each side of centerline. This was later modified by 23 U.S.C. § 316 to allow public highway use anywhere in the right-of-way. The broad scope of the right-of-way conveyed to the Railroad under the 1875 Act was further confirmed by 43 U.S.C. § 912. Under the plain language of 43 U.S.C. § 912, Congress provided for the disposition of all federally granted rights-of-way only upon a judicial or congressional determination of abandonment, including the 1875 Act grants. If there is a judicial or congressional declaration of abandonment, 43 U.S.C. § 912 provides that the rights to the corridor vest in the person or entity owning the legal subdivision traversed by the federally-granted right of way in question, unless (a) the
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federally-granted right of way is in a municipality, in which case it goes to the municipality, or (b) a state or local government establishes a public highway on the federally-granted right of way parcel within one year of the judicial declaration of abandonment, in which case the rights vest in the state or local government. As explained by this Court in Idaho v. Oregon Shortline R.R. Co., 617 F. Supp. 207, 212 (D. Idaho 1985), regardless of how the interest conveyed to the railroad under the 1875 Act right of way is denominated, "[s]ections 912, 913 and 316 evince an intent to ensure that railroad rights-of-way would continue to be used for public transportation purposes, primarily for highway transportation." See also Marshall v. Chicago & N.W. Transp. Co., 31 F.3d 1028, 1032 (10th Cir. 1994) (quoting Oregon Shortline). Likewise, in Great Northern, the Supreme Court held that statute did not grant railroads a fee simple interest in the rights of way but only a transportation easement. 315 U.S. at 27172. However, nothing in the decision states or suggests that the easement granted was limited to rail operations. Finally, the Rails-to-Trails Act itself reflects a clear federal policy favoring the preservation of all railroad rights-of-way for potential future rail use and for trail use in the interim. All of the foregoing statutes further support the conclusion, indicated by the language of 43 U.S.C. § 934, that the rights-of-way conveyed by the 1875 Act were not intended to be limited to active railroad operations but broadly encompass public transportation uses, including railbanking and recreational trail use. It follows that the Railroad's conveyance of the rights-of-way involved in Category 1 to the Friends of the

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Weiser River Trail, Inc. for those purposes was consistent with the rights granted to the Railroad and was not an abandonment of the rights-of-way. Conclusion As a matter of federal law, the rights conveyed to the Railroad under the 1875 Act authorize use of the rights-of-way for railbanking and interim trail use under the Rails-toTrails Act, and those rights were not abandoned by the Railroad's conveyance of those rights-of-way for such uses. As to those rights-of-way, therefore, no property interests of Plaintiffs have been taken. Respectfully submitted this 9th day June 2006. ZUCKERT SCOUTT & RASENBERGER, L.L.P. Richard A. Allen

RAILS-TO-TRAILS CONSERVANCY Andrea Ferster

HOLLAND & HART LLP

By:

/s/ Murray D. Feldman E-Mail: [email protected]

Attorneys for Amicus Curiae Rails-To-Trails Conservancy

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Certificate Of Service I HEREBY CERTIFY that on the 9th day of June 2006, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Nels J Ackerson [email protected] Cecilia Fex [email protected]; [email protected] [email protected] Lary C Walker [email protected] C Tom Arkoosh [email protected], [email protected] Kristine S Tardiff [email protected] [email protected] [email protected] [email protected]

/s/ Murray D. Feldman E-Mail: [email protected]
3565097_2.DOC

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Lary C. Walker, ISB No. 1303 WALKER LAW OFFICE 232 East Main Street PO Box 828 Weiser, ID 83672 Telephone: (208) 414-0390 Fax: (208) 414-0404 Email: [email protected] and Cecilia Fex, pro hac vice (DC Bar No. 435061) ACKERSON KAUFFMAN FEX , PC 1250 H Street, N.W., Suite 850 Washington, DC 20005 Telephone: (202) 833-8833 Fax: (202) 833-8831 Email: [email protected] Counsel for Plaintiffs' Class UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO _________________________________________ ) ROBERT HASH and GERLENE HASH, et al., ) ) Plaintiffs, ) ) Case No. CV99-324S-MHW v. ) ) Honorable Mikel H. Williams UNITED STATES OF AMERICA ) ) Defendant. ) _________________________________________ ) CLASS REPRESENTATIVES' CROSS-MOTION FOR SUMMARY JUDGMENT AS TO THE CATEGORY 1 LANDS

Dated: July 12, 2006

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On behalf of the members of the class whose properties are burdened by the former railroad parcels designated under Category 1, Representatives of Plaintiffs' Class ("Plaintiffs"), by counsel, hereby oppose Defendant's motion for summary judgment (Doc. No. 155), and crossmove for summary judgment holding the Government liable for a taking of these class members' properties. The railroad acquired right of way easements to these Category 1 parcels pursuant to the General Railroad Right-of-Way Act of March 3, 1875, ch. 152, 18 Stat. 482 (codified at 43 U.S.C. §§ 934-939 (1982)) ("1875 Act"). Under the 1875 Act, the United States granted only easements for railroad purposes. United States v. Union Pac. R. Co., 353 U.S. 112, 119 (1957) (discussing the holding in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), and affirming that "only an easement for railroad purposes was granted"); Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005). The class members' original predecessors in interest took the full legal subdivision burdened by these easements for railroad purposes only. For almost one hundred years, these railroad easements burdened the lands owned by class members who own property in Washington and Adams counties, Idaho, alongside the Weiser River. In 1997, after years of decline in use, prospects of facing serious financial losses, and with the need for extensive and costly maintenance and repairs to the infrastructure, the railroad company divested itself of its easement interests, conveying them to a trail sponsor to be used for a recreational, linear park. By operation of the National Trails System Act, 16 U.S.C. §§ 1241-1251 (the "Trails Act"), railroad rights of way which would otherwise be ripe for abandonment are sometimes converted to linear parks or recreational trails, such as was done here, with the potential to be 2

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restored in the future to railroad use if the need arises. Under prevailing law, when trail use is implemented a landowner's interests in vested rights are potentially "blocked" and any takings claim thereby accrues. Caldwell v. United States, 391 F.3d 1226 (2004). When the Government takes property under these circumstances, it is up to the landowner to muster the resources to bring a takings action in order to receive damages for the taking. See id. The question of liability in a rails-to-trails taking turns on the nature of the scope of the interests granted to the railroad. If the grant was limited in scope so as not to permit the transition from railroad to recreational, linear park use, and if no applicable law otherwise permits the transition, then the trail conversion on private properties burdened by the new easement is a taking of private property. Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996); Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004). At the time the interests in these 1875 Act easements were created and the legal subdivisions burdened by the easements were patented to settlers, the scope of the grant to railroads were for railroad purposes only, and patentees received the full subdivision underlying these grants burdened only by the easements for railroad purposes. Hash, 403 F.3d 1308; see generally Leo Sheep Co. v. United States, 440 U.S. 668 (1979); Swendig v. Washington Water Power Co., 265 U.S. 322 (1924). In granting these railroad rights of way and in patenting the legal subdivisions to settlers of public lands, the United States did not reserve to itself the right to control or maintain these interests for other, non-railroad purposes. Hash, 403 F.3d 1308. For the foregoing reasons, and those set forth in the memorandum ("Memorandum") that accompanies this cross-motion and the Plaintiffs' response in opposition to Defendant's motion (Doc. No. 155), Plaintiffs request the Court grant their cross-motion for summary judgment and 3

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find that the United States is liable for a taking as to Category 1 easements, and shall pay just compensation to eligible class members whose properties are burdened by the Weiser River Trail. Dated: July 12, 2006 Respectfully submitted, ACKERSON KAUFFMAN FEX , PC /s/ Cecilia Fex Email: [email protected]__________ CECILIA FEX, pro hac vice (DC Bar No. 435061) 1250 H Street, N.W., Suite 850 Washington, DC 20005 Telephone: (202) 833-8833 Fax: (202) 833-8831 Of Counsel: Lary C. Walker, ISB No. 1303 WALKER LAW OFFICE 232 East Main Street PO Box 828 Weiser, ID 83672 Telephone: (208) 414-0390 Fax: (208) 414-0404 Email: [email protected] Counsel for Plaintiffs' Class

4

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 12th day of July, 2006, I electronically filed Class Representatives' Cross-Motion for Summary Judgment as to the Category 1 Lands, through the CM/ECF system, which caused the following parties or counsel to be served with this document by electronic means, as more fully reflected in the Notice of Electronic Filing:

Kristine S. Tardiff, Counsel for Defendant [email protected]

/s/ Cecilia Fex Email: [email protected] Counsel for Plaintiffs' Class

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Lary C. Walker, ISB No. 1303 WALKER LAW OFFICE 232 East Main Street PO Box 828 Weiser, ID 83672 Telephone: (208) 414-0390 Fax: (208) 414-0404 Email: [email protected] and Cecilia Fex, pro hac vice (DC Bar No. 435061) ACKERSON KAUFFMAN FEX , PC 1250 H Street, N.W., Suite 850 Washington, DC 20005 Telephone: (202) 833-8833 Fax: (202) 833-8831 Email: [email protected] Counsel for Plaintiffs' Class UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO _________________________________________ ) ROBERT HASH and GERLENE HASH, et al., ) ) Plaintiffs, ) ) Case No. CV99-324S-MHW v. ) ) Honorable Mikel H. Williams UNITED STATES OF AMERICA ) ) Defendant. ) _________________________________________ ) CLASS REPRESENTATIVES' MEMORANDUM IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 155 - Filed on June 9, 2006) AS TO THE CATEGORY 1 LANDS

Dated: July 12, 2006

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TABLE OF CONTENTS

I. QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. BRIEF ANSWER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 III. BACKGROUND .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. B. Circumstances Surrounding the Enactment of the 1875 Act.. . . . . . . . . . . . . . . . . 2 Legislation Enacted in the 1900's.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IV. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. The Federal Circuit Issued a Mandate, Holding the United States has Taken Category 1 Properties and Instructing the Court to Determine Just Compensation Due to Eligible Class Members.. . . . . . . . . . . . . . . 6 The Government Is Liable for Taking Private Land Because the Scope of the Rights of Way Granted Solely to Railroads under the 1875 Act Which Burdened Patentees' Lands Did Not Include the Use of Linear Parks for Hiking, Picnicking, Wildlife and Nature Walks, and Other Recreational Pursuits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. 2. Regulatory Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Conversion of the 1875 Act Railroad Easements to Recreational Linear Parks Is Beyond the Scope of the Original Easements Which Burdened Patentee's Title.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 a. The 1875 Act Easements Were Limited to Railroad Purposes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Issue Is Not Whether the United States Could Reserve to Itself the Right of Way Interests, but Whether it Did; Manifestly it Did Not... . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The 1920's Legislation Did Not and Could Not Operate to Change the Interests Granted under the 1875 Act or to Patentee Settlers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Railroad Uses or Even Transportation Purposes Does Not Constitute Recreational Trail Use... . . . . . . . . . . . . . . . . . . . . . . . 22
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B.

b.

c.

d.

i

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3. 4. 5.

Defendant's "Shifting Public Use Doctrine" Does Not Apply . . . . . . . . . 25 "Railbanking" Is Irrelevant to the Analysis.. . . . . . . . . . . . . . . . . . . . . . . 26 The Question of Abandonment is Immaterial to Establishing Liability... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE

ii

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TABLE OF AUTHORITIES CASES Barney v. Burlington N. R.R., 490 N.W.2d 726 (S.D. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Beres v. United States, 64 Fed. Cl. 403 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 20-22 Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Evans v. United States, 504 U.S. 255 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18 Glosemeyer v. United States, 45 Fed. Cl. 771 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 29 Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5, 7, 14, 15, 19-21 Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim Hastings v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363 (1889). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Hayfield Northern R.R. Co., Inc. v. Chicago and North Western Transp. Co., 467 U.S. 622 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Idaho v. Oregon Short Line R.R. Co., 617 F. Supp. 207 (D. Idaho 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 King v. Saint Vincent's Hosp., 502 U.S. 215 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Lawson v. State, 730 P.2d 1308 (Wash. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 29 Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979) .. . . . . . . . . . . . . . . . 2, 13, 24, 28, 30 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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Northern Pacific Railway v. Townsend, 190 U.S. 267 (1903).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17, 19, 20 Pollnow v. State Dep't of Natural Resources, 276 N.W.2d 738 (Wis. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 29 Preseault v. I.C.C., 853 F.2d 145 (2nd. Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Preseault v. Interstate Commerce Commission, 494 U.S. 1 (1990) ("Preseault I"). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 27, 29 Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) ("Preseault II").. . . . . . . . . . . . . . . . . . . . . 1, 7-11, 22-29 Preseault v. United States, 27 Fed. Cl. 69 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Railway Co. v. Alling Denver and Rio Grande Ry. Co., 99 U.S. 463 (1878).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16 Rio Grande Western Railroad Co. v. Stringham, 239 U.S. 44 (1915).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14, 17, 19, 20 Robert C. Herd & Co., Inc. v. Krawill Machinery Corp., 359 U.S. 297 (1959).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Schmitt v. United States, 2003 WL 21057368 (S.D. Ind. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 29 Schnabel v. County of DuPage, 428 N.E.2d 671 (Ill. App. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Shaw v. Railroad Co., 101 U.S. 557 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 18 Smith v. Townsend, 148 U.S. 490 (1893).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18 Swendig v. Washington Water Power Co., 265 U.S. 322, 44 S.Ct. 496, 68 L.Ed. 1036 (1924) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 24 Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10, 11, 23, 25-29
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United States v. Union Pacific R.R. Co., 91 U.S. 72 (1875) ("Union Pacific I"). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 United States v. Union Pacific R.R. Co., 353 U.S. 112 (1957) ("Union Pacific II") . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 7, 15, 18 Vizcaino v. U.S. Dist. Court for Western Dist. of Washington, 173 F.3d 713 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 STATUTES 16 U.S.C. §§ 1241-1251 National Trails System Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11, 12 23 U.S.C. § 316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 43 U.S.C. § 912 Railroad Right-of-Way Abandonment Act of March 8, 1922, 42 Stat. 414. . . . . . . . . . . 20 43 U.S.C. § 913. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 43 U.S.C. 934-939 General Railroad Right of Way Act of March 3, 1875, ch. 152, 18 Stat. 482. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim 43 U.S.C. § 940. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14 43 U.S.C. §§ 942-1 to 942-9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16 49 U.S.C. § 10502. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 49 U.S.C. § 10505. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 49 U.S.C. § 10903. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Union Pacific Land Grant Act of July 1, 1862, § 6, 12 Stat. 489, amended by Act of July 2, 1864, ch. 216, 13 Stat. 356. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 REGULATIONS 43 C.F.R. § 243.2 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 43 C.F.R. § 2842(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 49 C.F.R. § 1152.29(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 49 C.F.R. § 1152.50(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 49 C.F.R. §§ 1152.29(b) & (d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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LEGISLATIVE MATERIALS H. Rep. No. 4777, 59th Cong., 1st Sess. p. 2 (Ser. No. 4908). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 H.R. REP. NO . 217, 67th Cong., 1st Sess. (1921). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-22 OTHER AUTHORITIES Rail Abandonments­Use of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C.2d 591 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . 12 Paul W. Gates, History of Public Land Law Development (Public Land Law Review Commission, 1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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Case 1:01-cv-00