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For Opinion See 403 F.3d 1308 Briefs and Other Related Documents United States Court of Appeals,Federal Circuit. Robert HASH, Gerlene Hash, William Don Lakey, and Nancy Hawkins, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee. No. 03-1395. July 25, 2003. Appeal from the United States District Court for the District of Idaho in Case No. 99-CV-324, Magistrate Judge Mikel H. Williams. Brief for Plaintiffs-Appellants Nels J. Ackerson, Cecilia Fex, Sommer Barnard Ackerson, P.C., Attorneys for Plaintiffs-Appellants, 1666 K Street, N.W., Suite 1010, Washington, DC 20006, (202) 833-8833.Of Counsel: Daniel J. Millea, Zelle, Hofmann, Voelbel, Mason & Gette, LLP, 33 South Sixth Street, City Center, Suite 4400, Minneapolis, MN 55402, (612) 339-2020. *iii TABLE OF CONTENTS CERTIFICATE OF INTEREST ... i STATEMENT OF RELATED CASES ... xiii JURISDICTIONAL STATEMENT ... 1 STATEMENT OF THE ISSUES ... 1 I. FEDERAL LAND GRANTS UNDER 1875 ACT ... 1 II. IDAHO STATE LAW ISSUES ... 2 STATEMENT OF THE CASE ... 3 STATEMENT OF FACTS ... 6 I. HISTORICAL BACKGROUND ... 6 II. CLASS MEMBERS' PROPERTY INTERESTS ... 7 SUMMARY OF THE ARGUMENT ... 9 STANDARD OF REVIEW ... 11

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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ARGUMENT ... 12 I. PATENTS ISSUED SUBJECT TO 1875 ACT EASEMENTS TRANSFERRED FEE TITLE TO THE SERVIENT ESTATE IN ACCORD WITH CONGRESSIONAL INTENT. ... 12 *iv A. UNDER THE 1875 ACT, CONGRESS INTENDED TO DISPOSE OF THE FEE TITLE TO THE PUBLIC LANDS THAT WERE SUBJECT TO THE RAILWAY GRANTS ... 13 1. The Great Northern Decision ... 13 2. The Phrase "Subject To" Has a Well-Known Meaning at Common Law. ... 16 3. The Position of The United States in This Case Is A Reversal of Its Historic Position. ... 17 B. UNDER PUBLIC DOMAIN LAW, PATENTEES WHO RECEIVED TITLE TO LANDS SUBJECT TO THE 1875 ACT GRANTS BECAME VESTED WITH THE FEE SIMPLE TITLE TO THOSE LANDS ... 19 1. Overriding Principle of Public Land Law. ... 19 2. Application of Public Land Law to Patents Subject to 1875 Act Easements and Other Railway Grants. ... 20 3. Finding Intent To Reserve When None is Expressed is Impermissible Under the Rules of Statutory Construction Applicable to the 1875 Act. ... 24 C. SUBSEQUENT REMEDIAL LEGISLATION CANNOT ALTER THE NATURE OF PROPERTY INTERESTS ESTABLISHED DECADES BEFORE ITS ENACTMENT. ... 28 1. 43 U.S.C. § 912 Did Not Evince the Intent of a Congress in Session Fifty Years Earlier. ... 29 2. The Express Terms of Section 912 ... 38 *v II. IDAHO STATE LAW ISSUES. ... 39

A. THE CONVEYANCES IN CATEGORIES 5, 6, AND 8 ARE UNAMBIGUOUSLY EASEMENTS CONVEYED UNDER IDAHO LAW ... 39 B. THE DISTRICT COURT ERRED IN HOLDING THAT THE RAILROAD ACQUIRED FEE TITLE THROUGH ADVERSE POSSESSION. ... 42 C. THE RAILROAD'S INTEREST IN CATEGORY 14 PARCELS IS AN EASEMENT ONLY ... 48 CONCLUSION ... 52 REQUIRED ADDENDUM STATUTORY ADDENDUM PROOF OF SERVICE

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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CERTIFICATE OF COMPLIANCE Note: Table of Contents page numbers missing in original document *vi TABLE OF AUTHORITIES I. FEDERAL Law Statutes: 28 U.S.C. § 1295(a)(2) ... 1 General Railroad Right-of-Way Act of 1875: 43 U.S.C. §§ 934-939 ... 1, 4 Homestead Act of May 20, 1862: 12 Stat. 392; Formerly codified at 43 U.S.C. § 161 (Repealed 1976) ... passim Little Tucker Act: 28 U.S.C. § 1346(a)(2) ... 1, 4 National Trails System Act: 16 U.S.C. §§ 1241-1251 ... 3, 32 Railroad Right-of-Way Abandonment Act of March 8, 1922: 43 U.S.C. § 912 ... passim Court and Agency Decisions: A. Otis Birch and M. Estelle C. Birch, 53 Interior Dec. 340 (1931) ... 22 Abbott Lab. v. Brennan, 952 F.2d 1346 (Fed. Cir. 1991) ... 6, 12, 39 Amerada Hess Corp., 83 Interior Dec. 194 (1976) ... 18, 23, 24 AT&T v. United States, 177 F.3d 1368 (Fed. Cir. 1999) ... 23 Boesche v. Udall, 373 U.S. 472 (1963) ... 10, 20 Brucker v. Buschmann, 21 Pub. Land Dec. 114 (1896) ... 22 *vii Dehne v. United States, 970 F.2d 890 (Fed. Cir. 1992) ... 11 Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 435 F. Supp. 313 (D. Wyo. 1977) ... 10, 20

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 619 F.2d 696 (8th Cir. 1980) ... 10, 20 Eugene McCarthy, 14 Pub. Land Dec. 105 (1892) ... 21, 34 Field v. Mans, 516 U.S. 59 (1995) ... 37 Glosemeyer v. United States, 45 Fed. Cl. 771 (2000) ... 3, 4 Graham v. Hastings & Dakota Ry. Co., 1 Pub. Land Dec. 362 (1883) ... 20 Great Northern v. United States, 315 U.S. 262 (1942) ... passim Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041 (Fed. Cir. 2001) ... 12, 39 Idaho v. Oregon Short Line Ry. Co., 617 F. Supp. 207 (D. Idaho 1985) ... passim John W. When, 32 Pub. Land Dec. 33 (1903) ... 22 Leo Sheep Co. v. United States, 440 U.S. 668 (1979) ... passim Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) ... 12 Mars Inc. v. Kabushiki-Kaisha Nippon Conlux, 24 F.3d 1368 (Fed. Cir. 1994) ... 36 Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028 (10th Cir. 1994) ... 31 *viii Matos by Rivera v. Sec'y of Dept. of Health and Human Services, 35 F.3d 1549 (Fed. Cir. 1994) ... 11 Moore v. Robbins, 96 U.S. 530 (1877) ... 10 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) ... 36 Northern Pac. R. Co. v. Townsend, 190 U.S. 267 (1903) ... 22 Pensacola & Louisville R.R. Co., 19 Pub. Land Dec. 386 (1894) ... 21 Preseault v. I.C.C., 494 U.S. 1 (1990) ... 3, 10, 29, 38 Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) ... passim Railroad Co. v. Baldwin, 103 U.S. 426 (1880) ... 10 Regents of Univ. of New Mexico v. Knight, 321 F.3d 1111 (Fed. Cir. 2003) ... 12 Right of Way, 12 Pub. Land Dec. 423 (1891) ... 21 Rio Grande Western R. Co. v. Stringham, 239 U.S. 44 (1915) ... 23 Smith v. Townsend, 148 U.S. 490 (1893) ... 16 State of Wyoming, 83 Interior Dec. 364 (1976) ... 21

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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Swendig v. Washington Power Co., 265 U.S. 322 (1924) ... 10, 19, 23 Toews v. United States, 53 Fed. Cl. 58 (2002) ... 4 United States v. Schurz, 102 U.S. 378 (1880) ... 10, 19 United States v. Union Pac. R. Co., 353 U.S. 112 (1957) ... 23 *ix Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330 (9th Cir. 1990) ... 31 Watt v. Western Nuclear, Inc., 462 U.S. 36 (1983) ... 24 Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1976) ... 18, 21 Administrative Materials: Fed. R. Civ. P. 54(b) ... 1, 5 II. STATE LAW Statutes: IDAHO CODE § 5-210 ... 43 IDAHO REV. STAT. § 4043 (1887) ... 43 Cases: Atchison, Topeka and Santa Fe Ry. Co. v. Humberg, 675 P.2d 375 (Kan. Ct. App. 1984) ... 59 Barney v. Burlington Northern R.R. Co., 490 N.W.2d 726 (S.D. 1992) ... 31 Berg v. Fairman, 690 P.2d 896 (Idaho 1984) ... 44 Boise Valley Const. Co. v. Kroeger, 105 P. 1070 (Idaho 1909) ... 50, 51 Bolton v. Dyke Oil Co., 114 S.W.2d 299 (Tex. Civ. App. 1938) ... 16 C & G, Inc. v. Rule, 25 P.3d 76 (Idaho 2001) ... 11, 40, 41 Camp v. East Fork Ditch Co., Ltd., 55 P.3d 304 (Idaho 2002) ... 45 Chesapeake & Ohio Ry. Co. v. Deepwater Ry. Co., 50 S.E. 890 (W. Va. 1905) ... 49 *x City of Aberdeen v. Chicago & North Western Transp. Co., 602 F. Supp. 589 (D.C.S.D. 1984) ... 31 City of Buckley v. Burlington Northern R.R. Corp., 723 P.2D 434 (Wash. 1986) ... 31, 38 Consumers' Gas Trust Co. v. American Plate Glass Co., 68 N.E. 1020 (Ind. 1903) ... 45

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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Cravens v. Jolly, 623 S.W.2d 569 (Mo. Ct. App. 1981) ... 16 Gibbens v. Weisshaupt, 570 P.2d 870 (Idaho 1977) ... 11, 46 Green v. Christie, 40 P. 54 (Idaho 1895) ... 43 Idaho Forest Indus., Inc. v. Hayden Lake Watershed Improvement Dist., 733 P.2d 733 (Idaho 1987) ... 11 Idaho-Iowa Lateral & Reservoir Co. v. Fisher, 151 P. 998 (Idaho 1915) ... 49 Lillich v. Lowery, 320 N.W.2d 463 (Neb. 1982) ... 16 Little v. Crawford, 88 P. 974 (Idaho 1907) ... 43 Loomis v. Union Pac. R.R. Co., 544 P.2d 299 (Idaho 1975) ... 44 Maryland & P.R. Co. v. Mercantile-Safe Deposit & Trust Co., 166 A.2d 247 (Md. 1960) ... 45 Melton v. Davis, 443 S.W.2d 605 (Tex. Civ. App. 1969) ... 16 Neider v. Shaw, 65 P.3d 525 (Idaho 2003) ... 11, 39, 41 Oregon Short Line R. Co. v. Stalker, 94 P. 56 (Idaho 1908) ... 26 Oregon Short Line R. Co. v. City of Caldwell, 226 P. 175 (Idaho 1924) ... 46 *xi O'Brien v. Best, 194 P.2d 608 (Idaho 1948) ... 47 People v. Ocean Shore R.R., 196 P.2d 570 (Cal. 1948) ... 45 Pollnow v. State Dept. of Nat'l Res., 276 N.W.2d 738 (Wis. 1979) ... 45 Roby v. New York Cent. & H.R.R. Co., 36 N.E. 1053 (N.Y. 1894) ... 16 Strother v Bootheel Rail Properties, Inc., 66 S.W.3d 751 (Mo. Ct. App. 2001) ... 43 Swank v. Sweetwater Irrigation & Power Co., 98 P. 297 (Idaho 1908) ... 43 Utter v. Gibbins, 48 P.3d 1250 (Idaho 2002) ... 44 West v. Smith, 511 P.2d 1326 (Idaho 1973) ... 45 Wheeling Stamping Co. v. Warwood Land Co., 412 S.E.2d 253 (W.Va. 1991) ... 45 Whipps Land & Cattle Co. v. Level 3 Communications, LLC, 658 P.2d 258 (Neb. March 14, 2003) ... 31 Williams v. Odessa & M. Ry., 44 A. 821 (Del. 1895) ... 49 III. SECONDARY SOURCES

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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73 AM. JUR. 2D Statutes § 153 (May 2003) ... 36 Andrew C. Mergen, Surface Tension: The Problem of Federal/Private Split Estate Lands, 33 LAND & WATER L. REV. 419 (1998) ... 24 Paul Smyth, Conservation and Preservation of Federal Public Resources: A History, 17-Fall, NAT. RESOURCES & ENV'T 77 (2002) ... 19 *xii Sharon J. Bell, Osages, Iron Horses, and Reversionary Interests: The Impact of United States v. Atterberry on Railroad Abandonments, 20 TULSA L.J. 255 n.134 (1984) ... 32 STATEMENT OF RELATED CASES Pursuant to Federal Circuit Rule 47.5, counsel for appellants make the following representations: 1. Counsel are unaware of any other appeal in or from the same civil action or proceeding in the lower court that was previously before this or any other appellate court. 2. Counsel are aware of the following cases pending in other courts that will be directly affected by this Court's decision in the pending appeal: · Bywaters v. United States, Ind. No. 699-CV-451 (E.D. Tex.); and · Schneider v. United States, No. 8:99CV0315 (D. Neb.), consolidated with Seger v. United States, No. 4:99CV3056, Gray v. United States, No. 4:99CV3154, and Lazy Horseshoe Ranch v. United States, No. 4:99CV3153. 1JURISDICTIONAL STATEMENT This action is brought against the United States pursuant to the Fifth Amendment to the United States Constitution for the taking of private property without just compensation. (Appendix ("A") 47-55.) The United States District Court for the District of Idaho has original jurisdiction over this action under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). This Court has exclusive jurisdiction for any appeals taken from final judgment from the district court in this action pursuant to 28 U.S.C. § 1295(a)(2). On March 7, 2003, under Fed. R. Civ. P. 54(b), the district court entered final judgment as to some, but not all, parties' claims. (Al.) Plaintiffs-Appellants timely filed a notice of appeal of that judgment on May 1, 2003. (A245.) This Court has jurisdiction of this appeal because it is taken from a 54(b) final judgment which disposed of all claims for the majority of the Plaintiffs and class members in this action. (A2-12.) STATEMENT OF THE ISSUES I. FEDERAL LAND GRANTS UNDER 1875 ACT.

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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A. Whether the General Railroad Right-of-Way Act of 1875, c. 152, 18 Stat. 482, 43 U.S.C. §§ 934-939 ("1875 Act") expresses a Congressional intention to dispose to homestead settlers lands traversed by railroad grants subject only to the easements that were granted to the railroads. B. Whether, pursuant to the Homestead Act of May 20, 1862, 12 Stat. 392, federal patents for lands burdened by 1875 Act railway grants, which did not reserve fee title in those lands to the United States, granted the fee title in those lands to the patentee. C. Whether 43 U.S.C. § 912, enacted almost half a century after the 1875 Act, should be construed to disturb vested property rights when an alternative construction is appropriate. II. IDAHO STATE LAW ISSUES. A. Whether private conveyances granting a "right-of-way," or otherwise expressly indicating the grant to be for railroad or right-of-way purposes, unambiguously convey an easement under Idaho law. B. Whether a railroad can obtain fee title to a right-of-way by claiming adverse possession without satisfying the statutory requirements necessary to establish fee title by adverse possession; and whether the interest obtained in a right-of-way by a railroad through prescription is in any event limited to an easement. C. Whether a right-of-way interest that is acquired by a railroad through unauthorized occupation is limited to an easement notwithstanding a subsequent grant by deed. STATEMENT OF THE CASE This is a class action, brought on behalf of approximately two hundred landowners, seeking compensation for the taking of their private property under federal authority, pursuant to the National Trails System Act, 16 U.S.C. §§ 1241-1251 ("Trails Act"). Class members are owners of property whose lands are traversed by a former railroad right-of-way that operated from Weiser to New Meadows, Idaho, and spanned 83.1 miles. (A48-49.) This right-of-way was conveyed by the railroad company to a trail sponsor, Friends of Weiser Trail, in 1997. Under the Trails Act, abandoned railroad right-of-way easements may be converted to recreational trail use instead of reverting to the actual owners of the estate un[FN1] derlying those rights-of-way. E.g. Preseault v. I.C.C., 494 U.S. 1 (1990) ("Preseault I"); Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (en banc) ("Preseault II"); Glosemeyer v. United States, 45 Fed. Cl. 771 (2000). The Trails Act allows for any owner whose property has been taken under a "Rails-to-Trails" conversion to seek just compensation from the United States Government by bringing a claim against it under the Tucker Acts. E.g., id. This action has been brought by the named Plaintiffs under the Little Tucker Act to seek just compensation for the taking of the Plaintiffs' and the class members' properties.

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(A47-55.) The district court certified this case as a class action on July 7, 2000. (A135-163.) FN1. The term "reversionary" is sometimes used to denote the concept of the ownership of the vested right to the underlying real estate ("servient estate") that is burdened by easements. As explained in Preseault II, however, the term "reversionary" is actually a misnomer when used in the context of easements because an abandoned easement does not "revert" - it is merely extinguished so that the land becomes unencumbered by any burden. 100 F.3d at 1533. To determine whether the Government has taken private property under the Trails Act, a plaintiff must establish two general elements. The plaintiff must show that (1) only an easement in the right-of-way was originally acquired by the railroad company, and that he therefore owns the underlying estate in fee simple; and (2) recreational trail use is different from railroad use and therefore exceeds the scope of the original easement. E.g., Glosemeyer, 45 Fed. Cl. at 779; Toews v. United States, 53 Fed. Cl. 58, 62 (2002). In 2001, the parties briefed the first issue of whether certain sample parcels in this class action were acquired by the original railroad as easements, or rather in fee simple or fee simple determinable, and whether the class members, through their predecessors in title, retained fee simple ownership in the servient estate to the right-of-way. Relevant to the briefing were interests acquired by the railroad (1) through the General Railroad Right-of-Way Act of 1875, 43 U.S.C. §§ 934-939 ("1875 Act"); (2) from railroad deeds granted by private landowners; and (3) through adverse possession. (A 13-30.) The district court entered a Memorandum Decision on these issues on November 27, 2001. (A13-30.) Subsequently, the parties and the district court attended to various matters relevant to that decision. When those matters were resolved, the Plaintiffs moved for a Rule 54(b) judgment as to those claims that were final pursuant to the Memorandum Decision. The district court granted the motion and entered judgment on March 10, 2003. (A2-12.) The district court's judgment resulted in finality for a majority of the class member landowners. The court ruled that with respect to the 1875 Act easements, the federal government, rather than the landowners, owned the servient estate in fee simple. (A29.) As to the state law issues, the court ruled that deeds which included references to "right of way" and other easement terminology nonetheless conveyed fee simple title rather than mere easements. In addition, the court found that for parcels where there was no deed, the railroad took fee title by adverse possession. Inasmuch as the district court concluded with respect to all of the foregoing categories the class members did not own the land below the right-of-way in fee simple (A29-30), it follows that nothing was "taken" from the plaintiffs when the rightsof-way were converted to trail use. The affected class members' claims would therefore be subject to dismissal under the court's adverse rulings as to these federal and state law issues. (A4-10.) 6STATEMENT OF FACTS

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I. HISTORICAL BACKGROUND. In the early- to mid-1800's, the federal government sought to encourage the development and settlement of the public lands. See Great Northern v. United States, 315 U.S. 262 (1942); Leo Sheep Co. v. United States, 440 U.S. 668 (1979). To facilitate this policy, the government enacted a series of statutes bestowing large areas of land to railroad companies to aid in the financing and construction of railway lines. Id. By 1871, however, this practice fell into "public disfavor," 315 U.S. at 273, and in a "sharp change in Congressional policy," subsequent legislation enacted by Congress limited federal railway grants to easements for railroad purposes. 315 U.S. at 274-75. This new policy was described in the following resolution adopted by the House of Representatives on March 11, 1872: `Resolved, that in the judgment of this House the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law.' Cong. Globe, 42nd Cong., 2nd Sess. 1585 (1872). 315 U.S. at 273-74. Congress then made numerous specific railway right-of-way grants to encourage further railway development, but to escape the burden of the high *7 volume of special legislation, Congress eventually passed the 1875 Act providing for general grants of railroad rights-of-way easements without the need for special legislation. 315 U.S. at 273-74. The route for each proposed railroad was to be established by filing a plan of the route with the Secretary of the Interior Department. The Act then provided that "all such lands over which such right-of-ways shall pass shall be disposed of subject to such right-of-way." 1875 Act § 937. (Attached hereto in Statutory Addendum ("SA") at 2.) The railroad right-of-way at issue in this case was acquired and pieced together by the Pacific and Idaho Northern Railroad Company ("Railroad Company") in the late 1800's and early 1900's. (A14-15, A48-49, A175-224.) Some parcels were acquired pursuant to the 1875 Act and some by deeds or adverse possession. (Id.) II. CLASS MEMBERS' PROPERTY INTERESTS. The land burdened by the rights-of-way acquired under the 1875 Act was shortly thereafter patented to entrymen pursuant to the Homestead Act of May 20, 1862, 12 [FN2] Stat. 392; formerly codified at 43 U.S.C. § 161 (repealed 1976). (SA1.) Under the Homestead Act, settlers were permitted to obtain up to one hundred and sixty acres, or "one-quarter section" of land by way of patent. Id. The homestead patents in this case conveyed the entire one hundred and sixty acres to the *8 plaintiffsclass members' predecessors in interest. (A236-237.) The patents expressly reserved in the United States the right-of-way for the construction of ditches and canals and provided for reservation of water rights to the extent those rights might reside in

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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others. There were no reservations made for the fee interests or reversionary in[FN3] terests in any of the lands subject to federal railway right-of-way grants. (A236-37.) FN2. Repealed. Pub.L. 94-579, Title VII, § 702, Oct. 21, 1976, 90 Stat. 2787. FN3. Each type of interest at issue was identified parties and samples were selected and submitted to of the briefing. (A14-15.) 1875 Act interests were and two of the patents burdened by those interests (A236-37.) by a "category" by the the court for the purpose classified as "Category 1" were submitted for review.

Many of the remaining right-of-way segments were acquired by the railroad through private deeds, the language of which varied. Some of the deeds conveyed fee simple [FN4] [FN5] title to the Railroad Company. (A17 n.3, A186-89.) Others, however, contained language as follows: "A perpetual right of way" (A200); "perpetual right of way for said [railroad's] railway line" (A190); and, "A strip of land for a right of way" ... "to be used.... for a right of way ... and for all and every purpose necessary ... in connection with ... said railway" (A191). Some of the deeds also contained language which indicated that the Railroad Company had entered upon and taken [FN6] steps to construct the railway before obtaining the deed to *9 the property. (A192, A203.) Many of the deeds used language different from the above, but referred [FN7] to the "right-of-way" in some fashion in the body of the deed. (A196-97.) FN4. "Category 4." (A 185.) FN5. "Categories 5, 6, and 8." (A185, A200-01, A190-91.) FN6. "Category 14." (A185, A189-94, A196-208.) FN7. "Category 15." (A185, 192, 195-97, A199, A201-05.) The third type of interest acquired by the Railroad Company, according to records it filed with the Interstate Commerce Commission, was in parcels said to be acquired by [FN8] "adverse possession." (A212-224, at 212-216.) No evidence in the record indicates whether the Railroad Company paid taxes on those parcels, enclosed them, cultivated the land, or used such parcels by permission of the landowners. FN8. "Category 10." (A185, 212-216.) Categories 12 and 13 have been subsumed into Category 10. (A239.) The district court ruled that the United States retained the fee interests in the rights-of-way granted by the 1875 Act, and that the Railroad Company acquired fee title to the rights-of-way obtained by private conveyances or "adverse possession." (A13-A30.) SUMMARY OF THE ARGUMENT Under the 1875 Act, Congress intended to limit the interest conveyed in railway grants to easements so that the fee title in the lands subject to those easements

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
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could later be disposed of to settlers. See Great Northern, 315 U.S. 262 (1942). Accordingly, when homestead patents were later issued pursuant to the Homestead Act of May 20, 1862, for lands subject to the railway grants, and no reservations were made by the United States to retain the fee title to the land used by the railroad, those patents conveyed fee title to that land to the patentees. See Swendig v. Washington Power Co., 265 U.S. 322, 331 (1924); United States v. Schurz, 102 U.S. 378 (1880); Moore v. Robbins, 96 U.S. 530, 533 (1877); Railroad Co. v. Baldwin, 103 U.S. 426 (1880); Boesche v. Udall, 373 U.S. 472, 477 (1963); Leo Sheep Co. v. United States, 440 U.S. 668 (1979); Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 435 F. Supp. 313, 317 (D. Wyo. 1977) ("ETSI I") (citing 63 AM. JUR. Public Lands § 73). The result of these patents was therefore to vest the fee title to the servient estate in the patentee, subject only to the easement for railroad purposes created by the 1875 Act. Baldwin, 103 U.S. at 430. Because the United States retained no "reversionary interest" in the patented lands, subsequent legislation enacted by the United States Congress purporting to dispose of federal lands still under its ownership and control could not apply to those patented lands. Rather, the patented lands had passed out of the public domain and were private property subject to protection under the Fifth Amendment to the Constitution. Preseault II, supra. Under state law, as to certain railroad deeds and as to rights-of-way acquired by "adverse possession," the district court failed to recognize that the language in railroad deeds, which explicitly states that the interests granted were intended to be used as a "right of way," conveyed merely easements, and that the subject railroad did not acquire fee title to those properties. Neider v. Shaw, 65 P.3d 525 (Idaho March 7, 2003); C & G, Inc. v. Rule, 25 P.3d 76 (Idaho 2001). The district court also failed to recognize that the railroad could not obtain fee title by adverse possession to rights-of-way without proof that the requirements for a claim of ownership by adverse possession had been satisfied; moreover, the district court erred in concluding that Idaho State law unequivocally holds that a Railroad Company would acquire fee title by adverse possession when a lesser interest could be inferred. Idaho Forest Indus., Inc v. Hayden Lake Watershed Improvement Dist., 733 P.2d 733, 736 (Idaho 1987); Gibbens v. Weisshaupt, 570 P.2d 870, 875 (Idaho 1977). Accordingly, the district court erred as a matter of law when it ruled that the class members in this action did not have fee title to the interests addressed in Categories 1, 5, 6, 8, 10, 12, 13, 14, and 15. STANDARD OF REVIEW Questions of federal law involving statutory interpretation are reviewed de novo. See Matos by Rivera v. Sec'y of Dept. of Health and Human Services, 35 F.3d 1549 (Fed. Cir. 1994); *12Dehne v. United States, 970 F.2d 890, 892 (Fed. Cir. 1992). The interpretation of a contract or a deed is a question of law. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 997 (Fed. Cir. 1995), aff'd, 517 U.S. 370 (1996) ("The principle that documentary interpretation is a matter of law has become a basic tenet of modem contract law."). This principle is true where, as here, no extrinsic evidence is introduced to aid in deed construction. Id. State law governs

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contractual obligations and transfers of property rights. Regents of Univ. of New Mexico v. Knight, 321 F.3d 1111, 1118 (Fed. Cir. 2003). This Court reviews a district court's interpretation of state law de novo, without deference to the district court, and reviews its findings of fact for clear error. Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041, 1051 (Fed. Cir. 2001); Abbott Lab. v. Brennan, 952 F.2d 1346, 1355 (Fed. Cir. 1991) ("We review de novo the correctness of the district court's determination of state law."). ARGUMENT I. PATENTS ISSUED SUBJECT TO 1875 ACT EASEMENTS TRANSFERRED FEE TITLE TO THE SERVIENT ESTATE IN ACCORD WITH CONGRESSIONAL INTENT. It is well-settled that railroad rights-of-way created by the 1875 Act merely created easements on public land and did not convey fee title to the railroads. Great Northern, 315 U.S. at 277. This point is undisputed. Therefore, fee title to the lands underlying the railroad rights-of-way remained in the United States *13 Government for as long as those lands remained unsettled. When homesteaders received patents from the United States for lands burdened by 1875 Act railroad rights-of-way easements, the fee title to those lands in their entirety was transferred to the patentees, subject only to those easements. See id. at 276-77. A. UNDER THE 1875 ACT, CONGRESS INTENDED TO DISPOSE OF THE FEE TITLE TO THE PUBLIC LANDS THAT WERE SUBJECT TO THE RAILWAY GRANTS. 1. The Great Northern Decision. In Great Northern, the United States Supreme Court all but settled the questions of federal law now before this Court. At issue was whether the federal right-of-way grants acquired by railroad companies pursuant to the 1875 Act bestowed easement or fee title to the companies. Mineral rights were at stake and the railroad company in possession of the 1875 Act grants claimed that it was the title owner to those rights. The United States took the position that easements were granted under the 1875 Act, not fee title. It claimed that the United States therefore owned the servient estate to those tracts of land still in the public domain. The Court agreed with the United States, holding that "[t]the Act of March 3, 1875, from which petitioner's rights stem, clearly grants only an easement, and not a fee." Id. at 271. In support of its findings, the Court reviewed the plain language of the statute itself, the history surrounding the federal railway grants, policies and *14 decisions issued by the Department of the Interior ("Interior"), and the legislative history behind the Act. Great Northern, 315 U.S. at 273-77. The Court applied principles of statutory construction to the 1875 Act and found Section 4 to be "especially persuasive" that grants made pursuant to the Act only conveyed easements. Section 4 required that the location of the right of way be recorded in the local land office, and stated that "... thereafter all such lands over which [1875 Act] right of way shall pass shall be disposed of subject to such right of way." 315 U.S. at 271 (emphasis added). The Court observed that Section 4's re-

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servation of the right to dispose of the lands subject to the right of way was wholly inconsistent with the grant of a fee. Id. The Court adopted the statements of the court below: "Apter words to indicate the intent to convey an easement would be difficult to find." Id. In other words, Section 4 was unambiguous in its meaning. The fact that Congress reserved the right to subsequently dispose of the land to future settlers "subject to such right of way" is clear proof that the Government did not retain any interest in the land after it was patented. It would hardly make sense if the intent was that in the subsequent disposition of the burdened lands to patentees, the Government still reserved the underlying fee. The Great Northern Court supported its conclusion with reference to four decades (from 1872 to 1909) of legislative history and administrative action: *15 "[T]he land over which this right of way passes is to be sold subject to the right of way. It simply provides that this right of way shall be an encumbrance upon the land..." (Remarks by Congressman Slater, who reported the bill for the Portland, Dalles and Salt Lake Act of April 12, 1872, 17 Stat. 52, Cong. Globe, 42nd Cong., 2nd Sess. 2137 (1872)). "Resolved, that... every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers ..." Resolution of the United States Congress regarding grants of public lands to railroads. Cong. Globe, 42nd Cong., 2nd Sess. 1585 (1872). "... All persons settling on public lands to which a railroad right of way has attached, take the same subject to such right of way and must pay for the full area of the subdivision entered, there being no authority to make deductions in such cases." 12 L.D. 423, 428. "... Under the present law whenever the railroad passes through a tract of public land the entire tract is patented to the settler or entryman, subject only to this easement." H. Rep. No. 1417, 59th Cong., 1st Sess., p. 2 (Ser. No. 4904). 315 U.S. at 272 n.3, 273-74, 276 n.13, 277 (quotations and citations in original) (emphases added). These telling excerpts from the history surrounding the Act which were of importance to the Supreme Court in affirming the intention of Congress - reveal the driving momentum behind this Act and acts directly related: in the name of "equal justice to the whole people," patentees were to receive the "public lands ... for the purpose of securing homesteads to actual settlers" - and those patentee settlers were to receive the "entire tract" subject "only" to the easements once they were passed on from the public lands. Id. *16 2. The Phrase "Subject To" Has a Well-Known Meaning at Common Law. The phrase "subject to" as used in the 1875 Act was readily identifiable then, as it is now, as a term of art in common law. The phrase was uniformly used to denote that the servient estate was burdened by an easement or other restriction on use. The universal acceptance of that interpretation is apparent from the multitude of cases that used "subject to" in this context. See, e.g., Smith v. Townsend, 148 U.S. 490, 499 (1893); Roby v. New York Cent. & H.R.R. Co., 36 N.E. 1053, 1054-55 (N.Y. 1894)

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(noting that upon abandonment of railroad right of way, property "subject to the railroad easement" would revert to owner of the fee over which the easement ran); Cravens v. Jolly, 623 S.W.2d 569, 572 (Mo. Ct. App. 1981) ("[A] grant of land with full covenants of warranty, which definitely describes the land conveyed, and then excepts or reserves a roadway for the use of the public, or a railroad or other right of way, as such, occupying a mere easement on, over, or across the land conveyed, conveys the fee to the entire tract subject to the easement reserved.") (emphasis added); accord Melton v. Davis, 443 S.W.2d 605, 607 (Tex. Civ. App. 1969) (same); Bolton v. Dyke Oil Co., 114 S.W.2d 299, 301 (Tex. Civ. App. 1938) (same); Lillich v. Lowery, 320 N.W.2d 463, 465 (Neb. 1982) (framing the issue, in a factual situation similar to the instant one, as: "Does a grant of title to a tract of land which exempts a right-of-way or an easement *17 withhold passage of fee title to the land underlying the easement, or does title pass to the grantee subject only to the outstanding right created by the easement?") (citing Kozak v. State, 189 Neb. 525 (1973)) (emphasis added). In short, the 1875 Act means what it says. The lands burdened by railroad easements were to be disposed of, subject to those easements. This intent is reinforced by the legislative history and administration of the Act. 3. The Position of The United States In This Case Is A Reversal of Its Historic Position. Appellee United States appears to have agreed with this interpretation for the first one hundred years after passage of the Act. For example, it is evident from the Great Northern decision itself that certain lands at issue in that case had passed out of the public domain and had vested in private hands just as intended by Congress. In the last paragraph of the decision, the Court noted that the railroadpetitioner challenged the Government's standing to bring the case at all, apparently arguing that all the lands subject to the 1875 Act right-of-way at issue were no longer in the public domain, and that the Government had failed to introduce evidence in the record to show it had any ownership in the tracts of land subject to the easements. See id. at 279-80. The Supreme Court permitted the parties to "cure this defect" by establishing that the Government had "retained title to certain tracts of land" (inside Glacier National Park) over which the 1875 Act *18 right-of-way passed. Id. at 280. The remaining tracts, it follows, had passed out of the public domain and vested in the settlers of those tracts. See Amerada Hess Corp., 83 Interior Dec. 194, 200-201 (1976) (agreeing that the clear interpretation of this passage in Great Northern was that lands traversed by 1875 Act easements that had been conveyed by the Government without mineral reservation "were no longer subject to the jurisdiction of the United States with respect to the oil and gas deposits underlying the right-of-way"). In 1942 when Great Northern was decided, the United States did not take the position it now takes here. In 1942, the United States laid claim to rights only on those tracts which still remained in the public domain - not to those that had since been patented to settlers. 315 U.S. at 272-280. Later still, in 1976, the United States continued to assert no claim over post-1871 Act railway grants once they passed from

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the public domain. See Wyoming v. Udall, 379 F.2d 635, 640 (10th Cir. 1976) (noting that the United States conceded that on post-1871 federal right-of-way grants, "title to the servient estate [of such grants] passes without express mention in a subsequent grant by the United States of the traversed tract") (emphasis added). Events in history explain why the United States historically did not claim to have kept the fee title to the railway easements and has only recently taken this new position. As noted by one author, the Government's earlier policy of *19 disposing of public lands changed in 1976: Ultimately, as far as public lands are concerned, Congress enacted the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701, et seq., which belated [sic] but officially changed the nineteenth century presumption that the public domain would be held only temporarily by the federal government until disposal under the public land laws to a presumption of federal retention and management. Paul Smyth, Conservation and Preservation of Federal Public Resources: A History, [FN9] 17-Fall, NAT. RESOURCES & ENV'T 77, 112 (2002). FN9. At the time of the article, Mr. Smyth held the title of the Deputy Associate Solicitor in the Division of Land and Water Resources in the Department of Interior's Solicitor's Office. Nothwithstanding the government's new theory, the only conclusion that is consistent with the Supreme Court's extensive reasoning in the seminal Great Northern decision is that patentees, not the United States, hold fee title to lands burdened by the 1875 Act railroad easements. B. UNDER PUBLIC DOMAIN LAW, PATENTEES WHO RECEIVED TITLE TO LANDS SUBJECT TO THE 1875 ACT GRANTS BECAME VESTED WITH THE FEE SIMPLE TITLE TO THOSE LANDS. 1. The Overriding Principle of Public Land Law. When a patent is issued in accordance with governing statutes, title and control of the land passes to the patentee, Swendig, 265 U.S. at 331; Schurz, 102 U.S. at 397, limited only by reservations expressly elaborated in the statutes or set *20 out in the patents themselves. See Leo Sheep, 440 U.S. at 679. Indeed, "it is nearly hornbook that a patent passes to the patentee all interest the government has, on the date of the patent, to everything embraced within the meaning of the term `land.' " ETSI I, 435 F. Supp. at 317 (citing 63 AM. JUR., Public Lands § 73); cf. Robbins, 96 U.S. at 533 (when "the patent issued under the seal of the United States, and signed by the President, is delivered to and accepted by the party, the title of the government passes with this delivery"). Once public lands are entered and patented to settlers, the land becomes segregated from the public land and "takes on the character of private property." Graham v. Hastings & Dakota Ry. Co., 1 Pub. Land Dec. 362 (1883) (citing Witherspoon v. Duncan, 4 Wall., 210; Opinion of the Attorney General, 8 C.L.O., 72); cf. Boesche, 373 U.S. at 477 (noting as a matter of course that "a land patent[] ... divests the Government of title"). If burdened by a federal land grant right-of-way, the person acquiring that public land will take the entire tract, subject to that servitude. Baldwin, 103 U.S. at 430; Energy Transp. System

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Inc. v. Union Pac. R.R. Co., 619 F.2d 696, 698-99 (8th Cir. 1980) ("ETSI II") (ruling servient estate to railway grant passed when state acquired federal lands). 2. Application of Public Land Law to Patents Subject to 1875 Act Easements and Other Railway Grants. Patents for public lands were issued by the Interior, formerly referred to as *21 the "Land Department." The long-term policy of the Interior was that in issuing patents for land traversed by rights-of-way, the patentee received fee title to the en[FN10] tire tract of land, without diminution of the right-of-way. State of Wyoming, 83 Interior Dec. 364, 368 (1976). This meant that for those lands burdened with 1875 Act easements, the Interior carried out what it believed to be the intent of Congress, to dispose of those tracts subject only to the easements. FN10. This is true as a matter of law but is also evident from the patents at issue in this case. The subject patents were issued pursuant to the Homestead Act of 1862, and neither the statute nor the patents reserved to the United States the fee title to any federal land grant right-of-way easements. (SA1; A234-37.) In the late 1800's and early 1900's, decisions issued from the Interior held that patents to tracts of land burdened by federal land grant easements, including the 1875 Act easements, passed all the title, not otherwise reserved, to the patentee, subject only to the burden of the easement. Right of Way, 12 Pub. Land Dec. 423, 428 (1891) (under the 1875 Act, settlers take the full tract of land that is subject to the right-of-way), Eugene McCarthy, 14 Pub. Land Dec. 105 (1892) (title to mineral claimant would become unrestricted upon abandonment of federal land grant rightof-way); Pensacola & Louisville R.R. Co., 19 Pub. Land Dec. 386 (1894) ("... lands across which a right-of-way is claimed by a railroad company [under federal land grants] may be disposed of by patent ... patentees will take the servient tenement, subject to whatever servitude may exist, and they will find *22 ample protection in the courts, should any attempt be made to deprive them of the use or occupancy of their land..."); Brucker v. Buschmann, 21 Pub. Land Dec. 114 (1896) (finding railroad right-of-way does not diminish the acreage held in fee by the homesteader); John W. When, 32 Pub. Land Dec. 33 (1903) (noting that the rights-of-way granted under 1875 and 1891 acts were mere easements and that the applicant to purchase land over which they passed would therefore be required to pay for the entire tract). The policy of the Interior changed, however, for a period of time in the early 1900's, when the department opined, inter alia, that it was the United States and not the patentees who were the owners of the fee underlying the federal right-of-way grants. See, e.g., A. Otis Birch and M. Estelle C. Birch, 53 Interior Dec. 340 (1931) (ruling that lands burdened by 1875 Act grants were retained by the Government and did not pass to settlers). However, as noted by the Supreme Court in Great Northern, the Interior's decisions from the early 1900's up until that time were a "shift in interpretation" of the federal land grant statutes, and should not be regarded as binding on the department "since it was impelled by what [the Court] regards as inaccurate statements" in the earlier cases it had decided. 315 U.S. at

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. Those earlier cases, which Great Northern overruled, were, inter alia, Northern Pac. R. Co. v. Townsend, 190 U.S. 267 (1903) (in dicta stating federal land grant rights-of-way conferred limited fee with an implied *23 condition of reverter) and Rio Grande Western R. Co. v. Stringham, 239 U.S. 44 (1915) (applying the dicta from Townsend to a right-of-way acquired under the 1875 Act). 315 U.S. at 276. Indeed, in a lengthy analysis of patent decisions, the Interior itself acknowledged this shift in interpretation and attributed the shift to the Townsend and Stringham line of cases. Birch, 53 Interior Dec. at 342-45; see also United States v. Union Pac. R. Co., 353 U.S. 112 (1957) (repudiating further the Townsend and Stringham line of cases). In the wake of Great Northern, the Interior returned to its earlier policy on the disposition of the servient estate to 1875 Act grants. In a careful and comprehensive analysis chronicling the history of land patents that were subject to federal grants of rights-of-way, the Interior considered whether the servient mineral estate (and therefore the entire estate) of lands burdened by rights-of-way established under the 1875 Act passed to the patentees of such lands. Amerada Hess Corp., 83 Interior Dec. at 197-203. The department concluded that the answer was "clear": Once the Government patented lands subject to 1875 Act easements, the title to the servient estate "passed out of federal ownership" to the patentee and the United States [FN11] no longer had any interest in the land. Id. at 203. FN11. It is well-settled that the agency charged with the administration of a federal statute is to be given due deference for its interpretation and administration of that statute. AT&T v. United States, 177 F.3d 1368 (Fed. Cir. 1999) (Rader, J., concurring); Swendig, 265 U.S. at 331 ("It is a `settled rule that the practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration is entitled to the to the highest respect, and, if acted upon for a number of years, will not be disturbed except for very cogent reasons.' ") (emphasis added). The Interior's decision in Amerada Hess Corp., therefore, should be given due deference here. *24 The Amerada Hess Corp. decision is in accord with public land laws which hold that once title passed by way of homestead patents or mineral laws and other land disposal laws, the Government would have no redress upon perfection of the title if it later discovered, for example, that valuable mineral rights had passed. See Watt v. Western Nuclear, Inc., 462 U.S. 36, 49-50 n.9 (1983) (reviewing history of public land law and noting that "under a land-grant statute, the patentee received title to the entire land, including any subsequently discovered minerals"); Andrew C. Mergen, Surface Tension: The Problem of Federal/Private Split Estate Lands, 33 LAND & WATER L. REV. 419, 426 n.36 (1998). 3. Finding Intent to Reserve When None is Expressed is Impermissible Under the Rules of Statutory Construction Applicable to the 1875 Act. The "clear" conclusion reached by the Interior in Amerada Hess Corp. is similarly supported under the rules of statutory construction applicable to the 1875 Act and homestead patents. The United States Supreme Court has spoken on such construction

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relatively recently in Leo Sheep. At issue was whether Congress intended to reserve easements across federal land grants when no such *25 reservations had been expressed in the operative statute bestowing the grants. Leo Sheep, 440 U.S. at 679. The Court refused to find such intent. Id. As noted by the Court, ordinarily "when grants to federal lands are at issue, any doubts `are resolved for the Government not against it.' " Id. at 682 (quoting Andrus v. Charlestone Stone Prod. Co., 436 U.S. 604, 617 (1978)). This rule of construction, however, is not to be applied so as to frustrate the intent of Congress or to "withhold what is given either expressly or by necessary or fair implication." Id. at 682-83. Under this precept, there must be some affirmative expression or indication of Congressional intent to reserve interests in the United States before such reservations may be assumed. Under the Homestead Act, patents were issued for the full one hundred and sixty acres of land, with no reservations made for railroad rights-of-way. (A236-237.) Under the 1875 Act, the express intent was to grant only easements so that the lands could be disposed of to subsequent settlers. See Great Northern, 315 U.S. at 272. Significantly, homestead patents did contain other, explicit reservations: the patents reserved and excepted "vested and accrued water rights," the "right of a proprietor of a vein or lode to extract and remove his ore therefrom," and "a right of way thereon for ditches or canals." (A236-7.) "Given the existence of such explicit exceptions, [the Supreme] Court has in the past *26 refused to add to this list by [FN12] divining some `implicit' congressional intent." Leo Sheep, 440 U.S. at 679. FN12. While not an issue before the Court, it should not be assumed that the United States retained any reversionary interests to pre-1871 grants either, unless expressly reserved. Courts have found that the Government's "reversionary interests" in the public lands would be granted to patentees when disposing of tracts of land, subject to the railroad's rights. See Oregon Short Line R. Co. v. Stalker, 94 P. 56, 64 (Idaho 1908) (citing to Interior regulations, 32 Lands Dec. 481, Dep. Int. (1904)); Baldwin, supra; ETSI I, 435 F. Supp. at 317; ETSI II, 619 F.2d at 698-99 (finding that lands passed to Nebraska included the servient estate to pre-1871 railway grants). The question of whether the class members in this action own the underlying fee title implicates the Fifth Amendment to the United States Constitution: if they do own these rights, their Constitutional rights have been violated. As discussed, the rights to the tracts of land at issue vested originally under homestead patents, and the 1875 Act provided for grants of easements so that the lands should be disposed of to patentees, subject only to those easements. It must follow, therefore, that, in the absence of express or affirmative intent to withhold the fee to those easements, they must vest in the patentee. Cf. id. at 687-88 ("Generations of patents have issued without any express reservation of the right now claimed by the Government.... 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.") *27 (emphasis added). *28 C. SUBSEQUENT REMEDIAL LEGISLATION CANNOT ALTER THE NATURE OF PROPERTY INTERESTS

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ESTABLISHED DECADES BEFORE ITS ENACTMENT. Contrary to the position the Government took in the first hundred years following the inception of the 1875 Act, the Government-Appellee now maintains, and the district court agreed, that Congress intended to retain the servient estate to post1871 Act railway grants. (A18-19.) The rationale behind this argument ignores the express terms of the 1875 Act, its legislative history, the express reservations which exist in relevant patents, and public domain doctrine with respect to homestead and land patent law. Instead, the rationale is based primarily on 43 U.S.C. § 912, a statute which was enacted some fifty years after the inception of the 1875 Act and whose purpose was to dispose of unwanted strips of land. The Government-Appellee argued that it was this statute, and not the patents themselves, that purported to vest "reversionary rights" in adjoining landowners to abandoned 1875 Act railroad rights-of-way. (A18-19.) This interpretation, however, stands legal jurisprudence on its head. It imputes a Congressional power to confer rights that the Government did not have, as those [FN13] rights had already vested with landowners from homestead patents. FN13. See § I, supra. Moreover, as set out below, under the express terms of 43 U.S.C. § 912, the Government limited the reach of the enactment to rights and interests that *29 remained in the Government. By its very terms, therefore, Section 912 excluded the granted lands subject to the 1875 Act easements. Morever, even if Congress actually intended Section 912 to preempt vested rights, and by operation of legislation defeat the extinguishment of the railroad easements, the result would be a disturbance of constitutionally protected property rights for which just compensation is appropriate. Preseault I, supra. 1. 43 U.S.C. § 912 Did Not Evince the Intent of a Congress in Session Fifty Years Earlier. Almost half a century after passing the 1875 Act, Congress enacted the Railroad Right-of-Way Abandonment Act of March 8, 1922, 42 Stat. 414, 43 U.S.C. § 912 ("Section 912"). To understand the intention behind this Act, and its relevance to the issues presented in this case, it is important to put the Act in its historic context. E.g., Great Northern, 315 U.S. at 273 (" `[C]ourts, in construing a statute, may with propriety recur to the history of the times when it was passed.' ") (citation omitted). As discussed above, for the first three decades after the enactment of the 1875 Act, the courts and the Interior consistently understood that the intention behind the 1875 Act was to grant easements to railroad companies and to reserve the servient estate thereto for homestead settlers. Great Northern, 315 U.S. at 275-76; see also § IB(1)(2), supra. As the Supreme Court was later to recognize in Great Northern, however, the issue then became confused as a result *30 of its intervening decisions in Townsend, and Stringham, supra, which Great Northern later repudiated. 315 U.S. at 276-79. The Supreme Court's ultimate clarification in Great Northern did not occur until 1942. Section 912 was enacted in 1922, in the midst of the confusion.

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Section 912 reads, in relevant part, as follows: § 912. Disposition of Abandoned or Forfeited Railroad Grants. Whenever public lands of the United States have been ... granted to any railroad company for use as a right of way ... and use and occupancy of said lands for such purposes has ceased or shall hereafter cease ... then ... all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said ... abandonment be transferred to and vested in any person ... assigns, or successors in title and interest to whom or to which title of the United States may have been ... granted, conveying ... the whole of the legal subdivision or subdivisions traversed or occupied by such railroad .... Id. Under its express terms, Section 912 operated to transfer and vest "all right, title, interest, and estate of the United States" in any lands previously conveyed [FN14] which the railroad right-of-way traversed. As discussed supra, the United States no longer held title to lands burdened by the 1875 Act easements that had been conveyed in homestead patents. Consequently, by Section 912's express terms, those lands were excluded from its provisions. FN14. The provision also provided for future grants. See 43 U.S.C. § 912. The cases relied on by the district court in reaching its decision on the 1875 *31 Act are Idaho v. Oregon Short Line Ry. Co., 617 F. Supp. 207 (D. Idaho 1985) and Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330 (9th Cir. 1990), cert. denied, 498 [FN15] U.S. 967. (A18-19.) The district court adopted and abbreviated the analysis from Oregon Short Line, decided sixteen years earlier in 1985 by then-Chief Judge Callister of the Idaho District Court. The district court engaged in no analysis concerning whether the patents that were issued to settlers under the Homestead Act carried with them the interests to the 1875 Act railroad easements that burdened the land. Rather, the district court began with the assumption that the United States was the owner of "reversionary" interests on the 1875 Act *32 easements. (A 18-19.) The general assumption expressed in Oregon Short Line, and implicitly adopted in the district court's Memorandum Decision, was that under Section 912, the government for the first time sought to divest itself of so-called "reversionary" fee title interests it purportedly held under the 1875 Act. Therefore, the district courts erroneously found, under the terms of the 1988 National Trails Act, supra, "Congress effectively repealed those portions of Section 912 that had allowed the government to relinquish its interests in these [1875 Act] rights-of-way to adjacent landowners." (A 19.) Because the district court relied heavily on Oregon Short Line, Chief Judge Callister's 1985 decision requires careful review. FN15. In Vieux, the question of whether Section 912 applied to federal railway grants was not in dispute. 906 F.2d at 1336 (noting the appellants argued that railroad abandonment had occurred and therefore triggered their reversionary rights purportedly conveyed under Section 912). Thus, that decision, addressing pre-1871 railway grants, cannot stand as precedent, notwithstanding its holding (without analysis) that Section 912 applies to pre-and post-1871 Act grants. See 906 F.2d at 1335. There are other courts that have similarly

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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ruled, relying heavily on Vieux or Oregon Short Line. See, inter alia, Marshall v. Chicago & Northwestern Transp. Co., 31 F.3d 1028 (10th Cir. 1994) (quoting extensively from Oregon Short Line); Barney v. Burlington Northern R.R. Co., 490 N.W.2d 726 (S.D. 1992) (agreeing with holding in Vieux and quoting from Oregon Short Line); Whipps Land & Cattle Co. v. Level 3 Communications, LLC, 658 P.2d 258 (Neb. March 14, 2003) (quoting extensively from Oregon Short Line). But other courts have reached the opposite conclusion or have reasoned Section 912 merely cleaned up the problem of otherwise having to take extra steps to claim vested title. See City of Aberdeen v. Chicago & North Western Transp. Co., 602 F. Supp. 589 (D.C.S.D. 1984) (holding Section 912 does not apply to 1875 Act easements); City of Buckley v. Burlington Northern R.R. Corp., 723 P.2D 434, 436-7 (Wash. 1986) (observing Section 912 to be a "clean-up" measure). In Oregon Short Line, the State of Idaho sued two railroad companies for declaratory relief, alleging those companies previously abandoned certain railway lines pursuant to federal law and the State therefore was entitled to acquire the property pursuant to Section 912. Id. at 208-09. Additional parties, intervenor cities and one county were permitted to advance claims concerning the right-of-way within their boundaries, and adjoining landowners were likewise permitted intervention. Id. at 209. The intervenor County filed for summary judgment arguing that Section 912 applied to the 1875 Act. The railroad companies argued that Section 912 was not triggered because no abandonment had taken place. The intervenor landowners contended that Section 912 did not apply to 1875 Act *33 rights-of-way and that they held fee title to the servient estate. Id. The Oregon Short Line court ruled that Section 912 did apply to 1875 Act railroad rights-of-way. In so ruling, the court reviewed certain segments of history related to the 1875 Act and to the legislative history of Section 912 which appeared to support its decision. Id. at 210-13. The court failed to consider, however, the vast body of public land law directly relevant to the questions of whether (1) patentees received the servient estate to railway grants under the Homestead Act, and (2) under the terms of the 1875 Act or land patents to settlers the United States expressed any affirmative intent to retain such interests. See §§ IA, B, supra. Instead, the Oregon Short Line decision focused primarily on the history of Section 912 and, to the extent the analysis went back further, that analysis misapprehended the relevant history. See Oregon Short Line, 617 F. Supp. at 210-13. For example, with respect to the period between 1871 (when the origins of the 1875 Act first began) and 1903 (the beginning of the Townsend line of decisions), the court failed to consider whether interests had already vested under public domain law. The court failed to consider the consistent application of the laws followed by the Interior before the advent of the Townsend decision. Instead, the court mistakenly attributed "definitional problems" to the Interior's earlier interpretation of the "exact nature of the railroads' right-of-way interest." *34617 F. Supp. at 210. The Interior, however, did not suffer from this infirmity. Rather, as noted by the Supreme Court, the Interior consistently held the 1875 Act rights-of-way to be

Exhibit 4 to Defendant's Response to Court's January 30, 2007 Order
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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easements and it was not until 1904, in "a shift in interpretation ... probably due to the [fee language] in ... Townsend" that the Interior adopted a different position from what it had taken over the previous decades. See Great Northern, 315 U.S. at 275-76; see also Interior decisions cited at § I