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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. THE UNITED STATES, Defendant-Appellee. No. 03-1395. November 10, 2003. Appeal from the United States District Court for the District of Idaho in 99-CV-324, Magistrate Judge Mikel H. Williams Brief for Appellee the United States Kelly A. Johnson, Acting Assistant Attorney General.Kathryn E. Kovacs, Kristine Tardiff, Katherine J. Barton, Attorneys, Environment and Natural, Resources Division, Department of Justice, P.O. Box 23795 L'Enfant Station, Washington, D.C. 20026. *i TABLE OF CONTENTS STATEMENT OF RELATED CASES ... 1 ISSUES PRESENTED ... 3 STATEMENT OF THE CASE ... 4 STATEMENT OF FACTS ... 5 A. Statutory background ... 5 B. Factual background ... 6 C. District court decision ... 7 SUMMARY OF ARGUMENT ... 10 ARGUMENT ... 12 I. THE UNITED STATES HOLDS THE REVERSIONARY INTEREST IN RIGHTS-OF-WAY GRANTED UNDER THE 1875 ACT ... 12 A. The language, legislative history, and purpose of the 1875 Act compel a determination that Congress retained a reversionary interest in the rights-of-way ... 13 B. Great Northern's characterization of the 1875 Act rights-of-way as easements is

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consistent with the United States' retention of a reversionary interest in them ... 18 1. The easements granted by the 1875 Act are unique, statutory easements ... 18 *ii 2. Distinctions between pre- and post-1871 railroad rights-of-way grants are immaterial ... 22 3. The United States retains the reversionary interest in 1875 Act rights-of-way just as it does in earlier statutes granting a limited fee interest ... 27 C. Congress repeatedly demonstrated its understanding that the United States retained the reversionary interest in the 1875 Act rights-of-way ... 31 1. The 1898 Act: Extending the 1875 Act to Alaska ... 32 2. The 1906 and 1990 Acts: Enforcing the 1875 Act's forfeiture ... 34 3. The 1992 Act: Disposition of 1875 Act abandoned rights-of-way ... 36 4. Disposition of 1875 Act rights-of-way for public highways ... 38 D. The courts have overwhelmingly concluded that the United States retained the reversionary interest in the 1875 Act rights-of-way ... 40 E. Interior's decisions are consistent with the United States' retention of the reversionary interest in the rights-of-way ... 42 II. THE RIGHTS-OF-WAY GRANTED BY PRIVATE DEED CONVEYED A FEE SIMPLE INTEREST ... 45 A. Idaho law presumes a railroad acquires a fee simple interest in a rights-of-way ... 45 *iii B. The language in the deeds indicates that a fee simple interest was intended to be granted ... 47 C. The property interest conveyed in the rights-of-way represented in Category 14 are determined by the deeds ... 55 III. THE RAILROAD OBTAINED A FEE-SIMPLE INTEREST IN RIGHTS-OF-WAY ACQUIRED BY ADVERSE POSSESSION ... 58 A. Under Idaho law, adverse possession results in acquisition of a fee simple interest ... 58 B. The proceedings presumed and the parties stipulated that the Railroad acquired the subject parcels by adverse possession ... 59 CONCLUSION ... 62 CERTIFICATE OF COMPLIANCE

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*iv TABLE OF AUTHORITIES CASES, FEDERAL Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792 (Fed. Cir. 1990) ... 47 Bell v. New Jersey, 461 U.S. 773 (1983) ... 31 Beres v. United States, No. 03-785L (Fed. Cl.) ... 3 Birt v. Surface Transportation Board, 90 F.3d 580 (D.C. Cir. 1996) ... 5 Blendu v. United States, No. 01-718L ... 3 Caldwell v. United States, 250 U.S. 14 (1919) ... 14 California ex rel. State Lands Comm'n v. United States, 457 U.S.283(1982) ... 13 Chicago and North Western Ry. Co. v. Continental Oil Co., 253 F.2d 468 (10th Cir. 1958) ... 25 City of Aberdeen v. Chicago and North Western Transp. Co., 602 F. Supp. 589 (D.S.D. 1984) ... 41 Columbia Valley R. Co. v. Portland & S. Ry. Co, 162 F. 603 (9th Cir. 1908) ... 31 Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942) ... passim Idaho v. Oregon Short Line Railroad Co., 617 F. Supp. 207 (D. Idaho 1985) ... 21, 23, 36, 39 In re McLinn, 739 F.2d 1395 (9th Cir. 1984 ... 46 International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ... 31 John McShain. Inc. v. United States, 375 F.2d 829, 831 (Ct. Cl. 1967) ... 60 Leo Sheep Co. v. United States, 440 U.S. 668, 682 (1979) ... 21 Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368, 1374 (Fed. Cir. 2002) ... 37 Maritrans. Inc. v. United States, 342 F.3d 1344 (Fed. Cir. 2003) ... 4 Marshall v. Chicago and Northwestern Transp. Co., 31 F.3d 1028 (10th Cir. 1994) ... 40, 41 Mauler v. Bayfield County, 309 F.3d 997 (7th Cir. 2002) ... 29, 30 Midland Valley R. Co. v. Sutter, 28 F.2d 163 (8th Cir. 1928) ... 22 Territory of New Mexico v. United States Trust Co. of New York, 172 U.S. 171 (1898) ... 22

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Morton v. Mancari, 471 U.S. 535 (1974) ... 37 New York Indians v. United States, 170 U.S. 1 (1898) ... 53 *v Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 477 (1973) ... 32 Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267 (1903) ... 23, 28 Preseault v. Interstate Commerce Commission, 494 U.S. 1 (1990) ... 5, 6 Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) ... 18, 45, 55, 56 Preseault v. ?? Ct. 818 (1992) ... 56 Rice v. United States, 348 F. Supp. 254 (D.N.D 1972) ... 29 Rice v. United States, 479 F.2d 58 (8th Cir. 1973) ... 29 Rio Grande Western Ry. Co. v. Stringham, 239 U.S. 44 (1915) ... 24, 27, 33 Schneider v. United States, No. 8:99CV0315 (D.Neb.) ... 3 Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572 (1980) ... 31 United States v. Big Horn Land & Cattle Co., 17 F.2d 357 ... 27 United States v. Union Pacific Railroad Co., 353 U.S. 112 (1957) ... 14, 25, 27 Vieux v. East Bay Regional Park Dist., 906 F.2d 1330 (9th Cir. 1990) ... 41 Watt v. Western Nuclear Inc., 462 U.S. 36 (1983) ... 14 Western Union Teleg. Co. v. Pennsylvania R. Co., 195 U.S. 540 (1904) ... 22 Wilson v. United States, 917 F.2d 529 (Fed. Cir. 1990) ... 31 Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967) ... 26, 41 Wyoming v. Andrus, 602 F.2d 1379 (10th Cir. 1979) ... 40 CASES, STATE: Barney v. Burlington Northern R. Co., 490 N.W.2d 726 (S.D. 1992) ... 41 Boise Valley Const. Co. v. Kroeger, 105 P. 1070 (Idaho 1909) ... 57 Brown v. Washington, 942 P.2d 908 (Wash. 1996) ... 21, 51 Clark v. CSX Transp., 737 N.E.2d 752 (Ind. Ct. App. 2000) ... 53 C&G, Inc. v. Rule, 25 P.3d 76 (2001) ... 46, 47, 50 Corning v. Lehigh Val. R. Co., 217 N.Y.S.2d 874 (1961) ... 59

Exhibit 3 to Defendant's Response to Court's January 30, 2007 Order
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Coulsen v. Aberdeen-Springfield Canal Co., 277 P. 542 (Idaho 1929) ... 48 Grill v. W. Virginia R.R. Maintenance Authority, 423 S.E.2d 893 (W. Va. 1992) ... 54 Hamilton v. King County, 2000 WL 1772525 (Wash. App. Div. 1 2000) ... 41 *vi Hill v. The Western Vermont Railroad Co., 32 Vt. 68 (1859) ... 56 Illinois Cent. R. Co. v. Noyes, 96 N.E. 830 (Ill. 1911) ... 69 Neider v. Shaw, 65 P.3d 525 (Idaho 2003) ... 49, 50, 51 Norfolk & Western Ry. Co. v. Bremco Mills, Inc., 288 N.E. 868 (Ohio Com. P. 1971) ... 59 Oregon Short Line Ry. Co. v. Yeates, 17 P. 457 (Idaho 1888) ... 48 Oregon Short Line R.R. Co. v. Caldwell, 226 Pac. 175 (1924) ... 61 Owen v. Boydstun, 624 P.2d 413 (Idaho 1981) ... 61, 62 O'Brien v. Best, 194 P.2d 608 (Idaho 1948) ... 59, 62 Pollnow v. State Dep't of Nat'l Res., 276 N.W.2d 738 (Wis. 1979) ... 59 Puett v. Western Pacific Railroad Co., 752 P.2d 213(Nev. 1988) ... 21 Sinnett v. Werelus, 365 P.2d 952 (Idaho 1961) ... 59 Union Pacific Railroad Co. v. Ethington Family Trust, 50 P.3d 450 (Idaho 2002) ... 56 Urbaitus v. Commonwealth Edison, 575 N.E.2d 548 (Ill. 1991) ... 57 Whipps Land & Cattle Co. v. Level 3 Communications, LLC, 658 N.W.2d 258 (Neb. 2003) ... 41 ADMINISTRATIVE DECISIONS, FEDERAL Amerada Hess, 83 Int. Dec. 194 (1976) ... 44 Brucker v. Buschmann, 21 Pub. Land Dec. 115 (1895) ... 42, 43 Eugene McCarthy, 14 Pub Land Dec. 105, 109-10 (1892) ... 42 Pensacola and Louisville R.R. Co., 19 Pub. Land Dec. 386, 387 (1894) ... 42 Proposed Installation of MCI Fiber Optic Comm. Line within Southern Pacific Transportation Co.'s Railroad Right-of-Way, 96 Int. Dec. 439 (1989) ... 21, 43 State of Wyoming, 27 IBLA 137 (1976) ... 33, 43 Use of Right of Way for Extracting Oil, 56 Int. Dec. 206 (1937) ... 27

Exhibit 3 to Defendant's Response to Court's January 30, 2007 Order
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W.S. Burch, 45 Pub. Land Dec. 473, 477 (1916) ... 44 STATUTES, RULES AND REGULATIONS, FEDERAL 16 U.S.C. § 1248(c) ... 37 43 U.S.C. § 937 ... 14-15 43 U.S.C. § 942-1 to 942-9 ... 32 43 U.S.C. § 942-1 ... 32 *vii 43 U.S.C. § 942-2 ... 32 43 U.S.C. § 942-5 ... 32 Act of May 14, 1898, c. 299, 30 Stat. 409 ("Extending the Homestead Laws and Providing for the Right-of-Way for Railroads in the District of Alaska") ... 32 Act of June 26, 1906, c. 3350, 34 Stat. 482 (codified at 43 U.S.C § 940) ... 34 Act of February 25, 1909, c. 191, 35 Stat. 647 (codified at 43 U.S.C. § 940) ... 34-35 Act of May 25, 1920, c. 197, 41 Stat. 621 (codified at 43 U.S.C. § 913) ... 8, 40 Act of Nov. 21, 1921, c. 119, 42 Stat. 212, 216 (codified as amended at 23 U.S.C. § 316) ... 38, 40 Act of March 8, 1922, c. 94,.42 Stat. 414 (codified at 43 U.S.C. § 912) ... 36 Federal Land Policy and Management Act, Pub. L. 94-579, 90 Stat. 2793, Section 706(a) ... 14 General Railroad Right-of-Way Act of 1875, ch. 152, 18 Stat. 482 (codified at 43 U.S.C. §§ 934-939) ... 7, 14 National Trails System Act Amendments of 1983, Pub. L. 98-11, 97 Stat. 48 ... 5 National Trails System Act, Pub. L. 90-543, 82 Stat. 919, Pub. L. 98-11, 97 Stat. 48 (codified as amended at 16 U.S.C. § 1241 et seq.) ... 5, 13 Federal Circuit Rule 47.5 ... 1 STATUTES, RULES, AND REGULATIONS: STATE 1864 Idaho Sess. Laws § 43at 528 (codified at Idaho Code § 55-604) ... 46 Idaho Code § 5-210 ... 12, 58-59, 61-62 Idaho Code § 62-104(2) and (3) ... 53 361-62, S.B. No. 45 (1899), General Laws of State of Idaho (5th Sess.) ... 46

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General Laws of the State of Idaho (Fifth Session) at 361-62, S.B. No. 45 (1899) ... 47 *Viii OTHER AUTHORITIES H. Rep. No. 137, 55th. Cong,, 2d Sess. 1898, ... 32 H.R. Rep. No. 2283, 59th Cong., 2d Sess. 1906, 40 Cong. Rec. 4615 (1906) ... 34 3 Cong. Rec. 404 (1875) ("1875 Act") ... 17 Sen. Rep. No. 388, 67 Cong. 2d Sess. (January 6, 1922 at 1 & 2) ... 36, 38 23 Am. Jur. 2d Deeds § 277 ... 52 28 Am. Jur. 2d Estates § 15 ... 52 3 Am. Jur. 2d Adverse Possession §§ 1, 248 ... 58 6 A.L.R. 3d 973 (1966), § 3 ... 52 D. Wright and J. Hester, Pipes, Wires, and Bicycles, 27 Ecology L.Q. 351, 372 (2000) ... 17 STATEMENT OF RELATED CASES Pursuant to Federal Circuit Rule 47.5, counsel for the United States makes the following representations: 1. Counsel is 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 is aware of the following cases pending in other courts that will be directly affected by this Court's decision on Issue I in this appeal: - Beres v. United States, No. 03-785L (Fed. Cl.) - Blendu v. United States, No. 01-718L (Fed. Cl.) - Schneider v. United States, No. 8:99CV0315 (D. Neb.) ISSUES PRESENTED In 1995, the Interstate Commerce Commission ("ICC") authorized the Northern and Pacific Railroad Company ("Railroad") to discontinue its use of part of its rightof-way in Idaho. The ICC "railbanked" the right-of-way for future railroad use and authorized its interim use as a recreational trail. Owners of parcels abutting or traversed by the right-of-way ("Landowners") brought this class action takings suit. The issues on appeal are: 1. With respect to rights-of-way conveyed to the Railroad by the United States under

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the authority of the General Railroad Right-of-Way Act of 1875, whether the United States retains the reversionary interest in those rights-of-way. 2. With respect to rights-of-way conveyed to the Railroad by private owners of the property traversed by the rail corridor, whether the deeds granting the rightsof-way to the Railroad conveyed a fee simple interest. 3. With respect to rights-of-way obtained by the Railroad by adverse possession, whether the Railroad obtained fee simple ownership in the rights-of-way. STATEMENT OF THE CASE This case involves a class action takings claim based on a December 28, 1995 decision of the ICC to authorize the preservation of the Railroad's right-of-way for the nation's future transportation use, and to permit the Railroad to negotiate with a trail organization for interim use of the right-of-way as a recreational trail. The case was filed in Idaho district court on July 26, 1999 by Landowners, who claimed that but for the ICC's action the right-of-way would have been abandoned under state law and devolved to them. The district court certified the class on July 7, 2000 and subsequently directed the parties to brief the threshold question of the nature of the property interest in the rights-of-way originally conveyed to the Railroad. This briefing was to allow the court to identify Landowners who had no property interest in the right-of-way [FN1] and could be dismissed from the case. For the purposes of briefing, the parties categorized each segment of the right-of-way based on the method by which it was conveyed to the Railroad. FN1. As a threshold matter, a takings claimant must establish its ownership of a compensable interest in the property allegedly taken. Maritrans. Inc. v. United States, 342 F.3d 1344, 1351 (Fed. Cir. 2003). On November 27, 2001, the district court ruled largely in the United States' favor, holding that Landowners in all but two categories held no property interest in the right-of-way. On March 10, 2003, the district court granted Landowners' motion for entry of final judgment on most of those claims pursuant to Federal Rule of Civil Procedure 54(b). JA2-12. STATEMENT OF FACTS A. Statutory background Beginning in the mid-1970s, Congress took a number of steps to deal with "the national problem of shrinking rail trackage" by converting unused rights-of-way to recreational trails. Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 5 (1990) ("Preseault I"). Since 1920, almost half of the country's approximately 270,000 miles of rail lines had gone out of use, and experts predicted that an additional 3,000 miles would be abandoned annually. Id. "Confronted with the Hobson's choice of forfeiting a national rail system through piecemeal abandonment of lines, or forcing railroads to maintain tracks on which they cannot turn a profit," Congress enacted

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the National Trails the National Trails at 16 U.S.C. § 1241 F.3d 580, 582 (D.C.

System Act Amendments of 1983, Pub. L. 98-11, 97 Stat. 48, to System Act, Pub. L. 90-543, 82 Stat. 919 (codified, as amended, et seq.) ("Trails Act"). See Birt v. Surface Transp. Bd., 90 Cir. 1996).

The Trails Act authorizes the ICC (today the Surface Transportation Board, or STB) to preserve for possible future railroad use rights-of-way not currently in *5 service and allow interim use of the land as recreational trails. Section 8(d) provides that a railroad wishing to cease operations along a particular route may negotiate with a State, municipality, or private group that is prepared to assume financial and managerial responsibility for the right-of-way. Preseault I, 494 U.S. at 6-7 (1990). If the parties reach agreement, the land may be transferred to the trail operator for interim trail use, subject to ICC-imposed terms and conditions - including the right of the railroad to reassert control and revive rail service - and the rail line is deemed by statute not to be abandoned. Ibid. Where railroad rightsof-way are held as common law easements subject to extinguishment under state law if abandoned, section 8(d) may give rise to a taking claim if the interim trail use prevents the interests in the right-of-way from otherwise vesting in the holder of the underlying fee. Id. at 8; see also Hash v. United States, 2000 WL 1460801 (Fed. Cl. July 7, 2000), at *1-*2. B. Factual background The right-of-way at issue in this case runs between Weiser and New Meadows in southwest Idaho. It was acquired by the Railroad primarily between 1899 and 1905, at which time the land traversed by the right-of-way consisted of intermingled public and private lands. JA57-59, 209-17. Where the right-of-way crossed federal lands, the Railroad acquired the right-of-way from the United *6 States pursuant to the General Railroad Right-of-Way Act of 1875, ch. 152, 18 Stat. 482 (codified at 43 U.S.C. §§ 934-939) ("1875 Act"). Where the right-of-way crossed private lands, the Railroad generally acquired the right-of-way by deed from the private landowner. In some cases, the Railroad acquired the right-of-way from private landowners by adverse possession. The Railroad completed construction of the rail line in 1911 (JA49) and began operation by 1916 (JA209). In March 1995, the Railroad filed a petition for exemption to abandon approximately 83.1 miles of rail line, including the portion at issue in this case. JA49. The ICC granted the exemption and, on December 28, 1995, served a decision and notice of interim trail use or abandonment authorizing the negotiation of an interim trail use agreement. On July 17, 1997, the Friends of the Weiser Trail reached an agreement with the Railroad, which quitclaimed its rights to that organization, subject to resumption of rail use at some future time. JA50. C. District court decision For the purposes of briefing the issue of the nature of the property interests in the rights-of-way, the parties categorized the rights-of-way as follows (JA242-44): - Category 1 consists of those portions of the right-of-way granted to *7 the Railroad by the United States under the 1875 Act. The land traversed by these rights-

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of-way was subsequently patented to private landowners, presumably pursuant to the Homestead Act of 1862. This category consists of the majority of mileage in the right-of-way. - Categories 2 through 9 encompass segments of the right-of-way conveyed by private deed. The parties grouped these rights-of-way into categories according to common language in the deeds. The deeds in each category are represented by one or more [FN2] "representative" deeds for the purposes of briefing and decision.

FN2. A table identifying the representative deeds for each category may be found at JA185. - Categories 10, 12 and 13 consist of segments of the right-of-way acquired by ad[FN3] verse possession. Categories 12 and 13 initially represented rights-of-way acquired by different conveyance methods but no deeds were ultimately found for these properties and these categories were not addressed in district court briefing. The parties subsequently stipulated that the segments in Categories 12 and 13 should be treated as having been acquired by the Railroad by adverse possession, and that the district court's ruling on adverse possession be applied to them. JA238-44. FN3. Due to clerical error, there is no Category 11. *8 - Categories 14 and 15 overlap Categories 2 through 9. Category 14 consists of segments of the right-of-way conveyed by deeds containing language indicating the deed was drawn up after the Railroad surveyed and located the right-of-way. Category 15 encompasses all segments conveyed by deed using the term "right-of-way" somewhere in the conveyance document. See JA164-67. The district court held that, except with respect to right-of-way segments in Categories 2 and 3, Landowners did not have an ownership interest in the right-of-way. With respect to Category 1, the district court held that the United States retained the reversionary interest in the right-of-way segments granted to the Railroad pursuant to the 1875 Act, and thus Landowners did not own a vested property interest in those segments when the ICC authorized their preservation for future rail use. Op. 7. With respect to Categories 2 and 3, the district court determined that the deeds conveyed a fee simple interest with a possibility of reverter, and thus the ownership interest in these rights-of-way reverted to the original grantors upon abandonment. Op. 10-11. With respect to Category 4, Landowners stipulated that the deeds conveyed a fee simple interest to the Railroad. Op. 11. For Categories 5 through 9, the district court held that the deeds conveyed a fee simple interest to the Railroad. Op. 11-15. As to Category *9 10, which the parties later stipulated to include Categories 12 and 13, the district court held that the Railroad's acquisition of these rights-of-way by adverse possession gave it a fee simple interest in them. Op. 15-16. The district court rejected Landowners' contention that the right-of-way segments in Category 14, for which the deeds were executed after the Railroad had surveyed and located the right-of-way, were only easements even if the language of the deed indicated a fee simple interest had been conveyed. Op. 16-17. Landowners did not make a separate argument with respect to rights-of-way in Category 15; these parcels are governed by the district court's rulings on Categories 2 through 9.

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SUMMARY OF ARGUMENT The ICC's decision to authorize the preservation of the Railroad's right-of-way for the nation's future transportation use, and to permit the Railroad to negotiate for its interim use as a recreational trail, does not constitute a taking of Landowners' property because they have no property interest in the right-of-way. 1. The district court correctly held that the United States retains the reversionary interest in rights-of-way granted from the federal lands to railroads under the 1875 Act, and that this interest was not conveyed to subsequent patentees of lands crossed by these previously-established rights-of-way. Because federal land grants must be strictly construed in favor of the United States, and the 1875 Act contains no clear language conveying any interest in the rights-of-way to the subsequent patentees, the Act must be construed to retain the reversionary interest in the United States. In addition, the purposes of the Act, to construct and maintain a national public transportation system, are served by construing the Act to retain the United States' interest in this system of rights-of-way created from the public's lands. Furthermore Congress repeatedly and specifically demonstrated in subsequent statutes that it understood that the United States retained the reversionary interest in the 1875 Act rights-of-way. Finally, with one limited exception, every court to address the question has concluded that the 1875 Act retained the reversionary interest in the rights-of-way for the United States. 2. The district court correctly interpreted Idaho law in holding that the deeds at issue in this appeal - executed between the Railroad and private landowners - conveyed a fee simple interest to the Railroad, and thus the grantors retained no property interest in the right-of-way. The district court correctly concluded that use of the term "right-of-way" in the deeds did not indicate that an easement was granted, given otherwise clear language in the deeds conveying a fee simple interest. The district court also correctly concluded that, under Idaho law, the fact that a deed was executed after the right-of-way was surveyed and located does not require a determination that an easement rather than fee simple interest was conveyed. Idaho's presumption that a fee simple interest is conveyed, its statutory authority permitting railroads to acquire rights-of-way in fee, and case law interpreting a postlocation deed to convey a fee simple interest in the right-of-way all support the district court's decision. The United States asks that this Court certify the Idaho state law questions involved in this case to the Idaho Supreme Court, however, and requests direct affirmance of the district court's ruling to the extent it requires adjudication of Idaho property law issues only in the alternative. 3. The district court also correctly concluded that, under Idaho law, the Railroad holds a fee simple interest in rights-of-way it acquired by adverse possession. Adverse possession pursuant to Idaho's adverse possession statute clearly results in the acquisition of a fee interest, and the Idaho Supreme Court has specifically upheld a railroad's fee simple ownership in a right-of-way acquired by adverse possession. ARGUMENT

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I. THE UNITED STATES HOLDS THE REVERSIONARY INTEREST IN RIGHTS-OF-WAY GRANTED UNDER THE 1875 ACT. At the time the Railroad located the right-of-way at issue in this case, most of the land crossed by the right-of-way was in federal ownership as unappropriated public land. The Railroad obtained the right-of-way across this public land under *12 the 1875 Act. Subsequently, the public lands crossed by the right-of-way were patented to private landowners, presumably under the homestead statutes. The district court correctly held that the United States retains the reversionary interest in these 1875 Act rights-of-way, and correctly rejected Landowners' claim that the homesteaders obtained the fee simple interest in the rights-of-way burdened only by a common law easement. Thus, the district court correctly held that Landowners have no prop[FN4] erty interest in the rights-of-way. FN4. Even if the United States does not hold a reversionary interest in the right-of-way, the rail line preservation and interim trail use authorized by the ICC is within the scope of the federal statutory easement granted by the 1875 Act for public transportation purposes; thus no abandonment would have occurred under Idaho law but for the preclusive effect of the Trails Act. However, that issue is beyond the scope of this appeal, which pertains only to whether the Landowners have a property interest in the right-of-way. A. The language, legislative history, and purpose of the 1875 Act compel a determination that Congress retained a reversionary interest in the rights-of-way. It is well-established that "federal land grants are to be construed strictly in favor of the United States." California ex rel. State Lands Comm'n v. United States, 457 U.S. 283, 288 (1982). In construing public land grants, courts must apply " `the established rule that land grants are construed favorably to the Government, that nothing passes except what is conveyed in clear language, and that if there are doubts they are resolved for the Government, not against it.' " *13 Watt v. Western Nuclear Inc., 462 U.S. 36, 59 (1983) (quoting United States v. Union Pacific R. Co., 353 U.S. 112, 116 (1957)); see also Caldwell v. United States, 250 U.S. 14, 20, 21 (1919). This canon has been repeatedly applied in, construing 19th century statutes granting railroad rights-of-way, including the 1875 Act at issue here. See, e.g., Great Northern Ry. Co. v. United States, 315 U.S. 262, 272 (1942); Union Pacific, 353 U.S. at 116. The 1875 Act contains no language conveying an interest in railroad rights-of-way to owners of property traversed by the rights-of-way. Section 1 of the 1875 Act provides for the grant of rights-of-way to railroads. It specifies: That the right of way through the public lands of the United States is hereby granted to any railroad company * * * [that has met certain requirements], to the extent of one hundred feet on each side of the central line of said road * * *. [FN5] 43 U.S.C. § 934. It also grants the railroad the right to take rock and timber necessary for construction from public lands adjacent to the right-of-way, as well as up to 20 acres for stations along the line and land needed for other railroad-related facilities. Id. Section 4 provides that a railroad company must file a profile

Exhibit 3 to Defendant's Response to Court's January 30, 2007 Order
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of its rail corridor with the local U.S. Department of the Interior *14 ("Interior") district land office within 12 months after survey or location of the road, which, after Interior's approval, is to be noted on the plats at that office. Section 4 then provides that FN5. The 1875 Act was repealed, effective October 21, 1976, insofar as applicable to the issuance of rights-of-way over the public lands and lands of the national forest systems. See the Federal Land Policy and Management Act, Pub. L. 94-579, 90 Stat. 2793, Section 706(a). thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way: Provided, That if any section of said road shall not be completed within five years after the location of said section, the rights herein shall be forfeited as to any such uncompleted section of said road. Id. § 937. Thus, the 1875 Act granted a 200-foot "right-of-way" to a railroad that met the statutory requirements, and once that right of way was noted on plats by Interior, the land over which it passed was disposed "subject to" such right-of-way. From this language, Landowners assert (Br. 16-17) that Congress granted the subsequent patentees of lands crossed by 1875 Act rights-of-way the fee simple interest in the rights-of-way such that the right-of-way would disappear and merge with that fee upon its abandonment or forfeiture. But there is no language in the Act conveying such a right. Nor does the purpose of the 1875 Act indicate, that Congress intended to irrevocably relinquish the public interest in and control over the rights-of-way by automatically allowing them to devolve to the homesteaders of the surrounding land if the railroads forfeited or abandoned the rights-of-way. The purpose of the *15 1875 Act was to "permit construction of railroads through the public lands and thus enhance their value and hasten their settlement." Great Northern, 315 U.S. at 272. As the Court concluded in Great Northern, that purpose does not compel a conclusion that railroads were granted fee title to and the mineral interests in the rights-of-way. Id. But neither does it compel a conclusion that the reversionary interesta in the rights-of-way were granted to homesteaders of the land crossed by the rights-of-way. To the contrary, the purpose of creating public transportation corridors is furthered by retaining the reversionary interest in the rights-of-way in the United States. This allows the United States to decide - if the rights-of-way are forfeited or abandoned - whether they are still needed for transportation purposes or should be conveyed to the owners of the surrounding lands. Similarly, the legislative history provides no indication that the reversionary interests in the rights-of-way were intended to be conveyed to the homesteaders. Prior to 1871, railroad grants generally consisted of a 200-foot to 400-foot right-of-way through the public lands, as well as alternating sections of land (consisting of 640 acres each) along the entire right-of-way. These grants resulted in 100 to 110 million acres passing to the railroads between 1862 and 1871, which caused a public outcry focused largely on the shortage of land to homesteaders as the railroads were

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slow to bring to market the alternating sections of land granted to *16 them. See D. Wright and J. Hester, Pipes, Wires, and Bicycles, 27 Ecology L.Q. 351,372 (2000). In 1872, Congress resolved that "the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued." Great Northern, 315 U.S. at 274 (internal quotations omitted). The 1875 Act ended the practice of making "lavish grants" to railroads; it made no grants of alternating sections of land and ensured that railroads did not receive the subsurface mineral interests in their rights-of-way. Id. at 275. Thus, in presenting the 1875 Act for vote on the Senate floor, the Senate committee chairman noted that the committee had "endeavored to preserve the public lands for the benefit of actual settlers" and "has been very conservative in regard to the appropriation of public lands to railroads." The chairman explained that no alternating sections were granted to the railroad but made no suggestion that the homesteaders would have a future right to the rightof-way itself. Instead, he explained: "All our grants of public lands, therefore, have been narrowed down to rights of way." 3 Cong. Rec. 404 (1875). In sum, nothing in the 1875 Act indicates a clear intent of Congress to relinquish the public's interest in the federal grants of rights-of-way made to the railroads. To the contrary, construing the Act to retain a reversionary interest in *17 those federal property interests in the United States is fully consistent with the Act's language, purpose, and legislative history. B. Great Northern's characterization of the 1875 Act rights-of-way as easements is consistent with the United States' retention of a reversionary interest in them. Landowners' argument rests on their contention that Supreme Court precedent, and the language of the 1875 Act, establishes that the 1875 Act rights-of-way operate as traditional common law easements. Such easements are deemed to be a mere " `use' interest, sometimes an `incorporeal hereditament,' but not a `possessory' interest in the land." See Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) ("Preseault II"). For such easements, the land crossed by the easement is viewed as a present estate in fee simple, subject to the burden of the easement, and there is no reversionary interest; rather, upon expiration of the easement, the burden on the fee dissolves. Id. However, as case law clearly establishes, so-called "easements" granted for rights-of-way under the federal railroad statutes are unique, statutory interests that have many attributes of a fee interest in which a reversionary interest may be retained. 1. The easements granted by the 1875 Act are unique, statutory easements. The U.S. Supreme Court addressed the nature of the property interest conveyed to railroads under the 1875 Act in *18Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942). In Great Northern, the United States brought suit against a railroad that owned rights-of-way obtained under the 1875 Act in order to prevent it from removing the oil, gas, or minerals in the rights-of-way, which the United States claimed to own. Id. at 270. The Court held for the United States, concluding that the rights-of-way were "easements" that did not convey the subsurface mineral interests in the rights-of-way to the railroad.

Exhibit 3 to Defendant's Response to Court's January 30, 2007 Order
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The Great Northern Court applied the rule that, in a land grant by the United States, nothing passes but what is conveyed in clear and explicit language. Id. at 272. The Court found that there was no clear and explicit conveyance of the underlying oil and minerals, and that such a conveyance was not necessary to achieve the Act's purpose. Rather, the Court concluded that certain language in the Act indicated an easement was intended, including language granting "the" rather than "a" right-of-way; a provision prohibiting the railroad from preventing other railroads from using canyons or passes through which the right-of-way passed; and language providing for the disposal of land crossed by the right-of-way "subject to" the right-of-way. Id. at 271-72. The Court then looked to the "history of the times" to discern Congress's intent. Id. at 273. The Court found the 1875 Act was intended to make a "sharp change" from the pre-1871 approach of making "lavish grants" to the railroads, *19 and thus Congress did not intend to grant railroads the mineral rights in the right-of-way. Id. at 275. The Court also found pertinent to the Act's construction the fact that Interior decisions issued after the Act's passage concluded that the Act granted an easement, and that Congress continued to use similar language in subsequent statutes without contesting Interior's interpretation. Id. Finally, the Court looked to Congress's own subsequent interpretations of the 1875 Act - set forth in legislation enacted in 1906 and 1909 - which interpreted the 1875 Act as granting easements. Id. at 276-77. The Court rejected statements in prior cases that the 1875 Act granted a "limited fee" - described as the fee interest with the possibility of reverter upon cessation of use for railroad purposes - reasoning that those cases had wrongly adopted the language of cases construing pre- 1871 statutes. The Court noted, in any event, that none of the prior cases explicitly decided the rights to subsurface minerals in a right-of-way. Id. at 278. While Great Northern characterized the 1875 Act rights-of-way as "easements," it did not hold that they were akin to common law easements, but only that they constituted a property interest that did not convey the subsurface minerals. See infra, Part I.B.2. As Interior has explained with respect to the 1875 Act rights-of-way, "it is unjustifiable to force a unique estate created by Congress *20 into a common-law label." Proposed Installation of MCI Fiber Optic Comm. Line within Southern Pacific Transportation Co.'s Railroad Right-of-Way, 96 Int. Dec. 439, 447 (1989). Congress may "pre-empt or override common-law rules regarding easements, reversions, or other traditional real property interests," and it is not necessary to "shoe-horn" the 1875 Act easements into a traditional common law category. Idaho v. Oregon Short Line Railroad Co., 617 F. Supp. 207, 212 (D. Idaho 1985); see also Brown v. Washington, 924 P.2d 908, 917 (Wash. 1996) (easements on public land granted by Congress "are subject to the intentions and specifications of Congress"); Puett v. Western Pac. R. Co., 752 P.2d 213, 215-16, 218 (Nev. 1988) ("cases interpreting the 1875 Act demonstrate that the easements granted thereby were not intended to be construed within the traditional definition of an easement"). As the Supreme Court has recognized, 19th century statutes making grants to railroads are "to receive such a construction as will carry out the intent of Congress, however difficult it might be to

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give full effect to the language used if the grants were by instruments of private conveyance." Leo Sheep Co. v. United States, 440 U.S. 668, 682 (1979) (internal quotations omitted). Given the special nature of railroad rights-of-way, it cannot be assumed that Congress intended the rights of way to operate as common law easements. Indeed, the Supreme Court has recognized that a federal grant of a railroad right-of-way *21 "is more than a mere right of passage. It is more than an easement." Western Union Teleg. Co. v. Pennsylvania R. Co., 195 U.S. 540, 570 (1904). Even "if a railroad's right of way was an easement," it was one "having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property." Id. (internal quotations omitted). The Court concluded, therefore, that a railroad right-of-way "has the substantiality of the fee." Id.; see also Territory of New Mexico v. United States Trust Co. of New York, 172 U.S. 171, 184 (1898) (citing cases applying certain fee title principles to railroad easements); Midland Valley R. Co. v. Sutter, 28 F.2d 163, 165 (8th Cir. 1928) (citing numerous "[w]ell-considered cases recognize that an easement for a railroad right of way differs in important respects from other easements") (internal quotations omitted). Accordingly, the 1875 Act granted not just an incorporeal use interest in the rights-of-way but rather an interest that is corporeal and possessory - operating essentially as a fee interest in the surface - and the traditional rules regarding the passing of the servient estate and precluding a "reversionary interest" need not apply. 2. Distinctions between pre- and post-1871 railroad rights-of-way grants are immaterial. Landowners' contention that the United States does not retain the reversionary interest in 1875 Act rights-of-way also rests on distinguishing the *22 pre-1871 rights-of-way - characterized by the Supreme Court as a "limited fee" in which the United States holds the right of reverter - from the 1875 Act rights-of-way, characterized by the Supreme Court as "easements," in which Landowners contend the United States holds no reversionary interest. But as the case law demonstrates, the distinction between the two is at most minimal. Both are corporeal and possessory interests that carry reversionary interests, and any distinction between them has no bearing on the outcome of this case. The evolution of the case law on the nature of interests granted in the various congressional railroad right-of-way statutes is recounted in Oregon Short Line, 617 F. Supp. at 210-211. In 1903, the U.S. Supreme Court considered whether homesteaders who had cultivated and occupied a portion of a railroad right-of-way granted under an 1864 statute (the "1864 Act") could acquire the occupied property by adverse possession. The Court ruled that the 1864 Act conveyed a "limited fee, made on an implied condition of reverter in the event the company ceased to use or retain the land for the purpose for which it was granted." Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267 (1903). The Townsend Court held that the right-of-way could not be alienated by the railroad directly or indirectly via adverse possession, because the railroad held only the right to use the right-of-way for railroad purposes. Id.

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at 271. In other words, the United *23 States held the reverter. In 1915, the Court considered whether a party holding a mining patent that granted fee title to lands encompassed by a mining claim crossed by an 1875 Act right-of-way obtained title to the right-of-way. The Court, relying on Townsend, characterized the right-of-way as a "limited fee" made on an implied condition of reverter. Rio Grande Western Ry. Co. v. Stringham, 239 U.S. 44, 47 (1915). Although Stringham, like Townsend, characterized the nature of the railroad's interest as fee title, subject to the United States' reversionary interest, both cases addressed only the question of the ownership of the surface rights. It was against this background that the Supreme Court decided Great Northern, which for the first time addressed whether the congressional grant of a railroad rightof-way conveyed the subsurface mineral interests. The question arose in the context of the 1875 Act and, as discussed supra Part I.B.2, the Court held that the Act did not grant the railroads the mineral rights in the rights-of-way. Apparently assuming that the "limited fee" interest described in Townsend conveyed to the railroad all present interests in the right-of-way, including the mineral interests, Great Northern distinguished between pre- and post-1871 statutes and characterized the 1875 Act as granting an "easement" rather than a "limited fee" interest. While the Court rejected Stringham's characterization of *24 the 1875 Act rights-of-way as conveying a "limited fee" interest, the Court noted that none of the prior cases involved the question of rights to subsurface minerals. Id. at 278-79. In 1957, the question of rights to subsurface minerals in rights-of-way granted under a pre-1871 statute came before the Court. See United States v. Union Pacific, 353 U.S. 112. The Court held that the 1862 statute in question did not convey the subsurface mineral rights to the railroad. While the Court relied in part on specific language in the statute to reach this conclusion, the Court also sought to reconcile the prior decisions of the Court characterizing the property interest conveyed in grants of railroad rights-of-way. The Court rejected the argument that the Townsend line of cases compelled a ruling that the railroad owned the subsurface mineral rights, concluding: The most that the `limited fee' cases decided was that the railroads received all surface rights to the right of way and all rights incident to a use for railroad purposes. Id. at 119; see also Chicago and North Western Ry. Co. v. Continental Oil Co., 253 F.2d 468, 471 (10th Cir. 1958) (questioning whether the "so-called limited fee concept of title to railroad rights-of-way" could be said to have established railroad ownership in underlying minerals). The Court also declined to apply the distinction between the pre- and post-1871 Acts made in Great Northern, *25 reasoning that its "suggestion that a right of way may at times be more than an easement was made in an effort to distinguish the earlier `limited fee' cases." Id. Subsequent courts reviewing the evolution of this case law have viewed it as indicating that there may be little, if any, distinction between the rights granted in pre- and post-1871 railroad right-of-way statutes. The Tenth Circuit explained:

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[W]e are not impressed with the labels applied to the title of the railroads in their rights-of-way across the public lands of the United States. The concept of "limited fee" was no doubt applied in Townsend because under the common law an easement was an incorporeal hereditament which did not give an exclusive right of possession. With the expansion of the meaning of "easement" to include, so far as the railroads are concerned, a right in perpetuity to exclusive use and possession the need for "limited fee" label disappeared. Wyoming v. Udall, 379 F.2d 635, 640 (10th Cir. 1967). Oregon Short Line probed the limits of Great Northern's distinction between pre- and post-1871 statutes, noting that the language of the pre and post- 1 871 Acts "contained identical language." 617 F. Supp. at 212. Oregon Short Line described Townsend and Stringham as decisions that "attempt[ed] to define the property interest conveyed to a railroad by the grant of a right-of-way" and resulted in the "inartful coinage of the term `limited fee with an implied condition of reverter.' " Id. at 210. Indeed, Stringham itself, in applying the term "limited fee with an implied condition of reverter" to 1875 Act rights-of-way, described the right as "neither a mere *26 easement, nor a fee simple absolute." 239 U.S. at ?? Horn Land & Cattle Co., 17 F.2d 357, 365 (8th Cir. 1927) (stating, in reference to an 1891 right-of-way statute, "We think, it, therefore, not important whether the interest or estate passed be considered an easement or a limited fee. In any event it is a limited fee in the nature of an easement."). Similarly, in a decision that was a prelude to Great Northern, Interior accepted Stringham's characterization of the 1875 Act as granting a "limited fee" interest in the rights-of-way, and yet held that the oil and gas underlying the 1875 Act rights-of-way did not convey to the railroad grantee. Use of Right of Way for Extracting Oil, 56 Int. Dec. 206 (1937). It is clear, as Union Pacific established, that both pre- and post-1871 railroad right-of-way statutes granted to railroads "all surface rights to the right of way and all [nonsurface] rights incident to a use for railroad purposes." 353 U.S. at 119. Both essentially grant the railroad a corporeal fee-like interest in the surface (plus ancillary nonsurface rights) so long as the railroad uses the rightof-way for railroad purposes. Consequently, both operate in the same manner with respect to their reversionary interests and effect on conveyances to homesteaders of lands crossed by the right-of-way. *27 3. The United States retains the reversionary interest in 1875 Act rights-of-way just as it does in earlier statutes granting a limited fee interest. It is well-established that the United States retains the reversionary interest in pre-1871 rights-of-way. See Townsend, 190 U.S. at 271. Although the 1864 statute addressed in Townsend did not expressly retain a reversionary interest in the United States, Townsend implied the existence of such a reverter because the "grant was explicitly stated to be for a designated purpose" and thus provided a right to present use of the right-of-way only so long as it was used for that purpose. Id. Similarly, the 1875 Act grants the right-of-way for a designated purpose - for railroad use and provides the right to present use of the right-of-way only so long as it is used for that purpose. Thus, just as in pre-1871 statutes, a right of reverter is implied

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in the 1875 Act rights-of-way. It is also well-established that the reversionary interests in the pre-1871 rights[FN6] of-way are retained by the United States. Id. While Townsend did not address this question directly, it noted that the grant of the right-of-way took the *28 land granted out of the category of public lands subject to pre-emption and sale, and thus "the homesteaders acquired no interest in the land within the right-of-way" despite the fact that "the grant to them was of the full legal subdivisions." Id. Applying the reasoning of Townsend, the Seventh Circuit ruled that subsequent patentees of land crossed by railroad rights-of-way granted under statutes enacted in 1856 and 1864 did not possess a legal interest in the right-of-way, because the right-of-way constituted a limited fee interest in which the United States held the possibility of reverter. See Mauler v. Bayfield County, 309 F.3d 997 (7th Cir. 2002). Under similar reasoning, the Eighth Circuit likewise held that subsequent patentees of land crossed by 1864 Act rights-of-way did not obtain the oil and gas interests in the right-of-way, because the right-of-way "was taken out of the category of public land subject to preemption and sale"; thus those rights were retained by the United States. See Rice v. United States, 479 F.2d 58 (8th Cir. 1973); see also Rice v. United States, 348 F. Supp. 254 (D.N.D 1972) (providing detailed reasoning on which the court of appeals relied). FN6. Landowners contention (Br. 26 n.12) that the reversionary interest in the limited fee rights-of-way conveys to the subsequent patentees of the surrounding land is not supported by the cases they cite, none of which rules on the United States' interests in the rights-of-way; belies their reliance on the "subject to" language of the 1875 Act; and would render subsequent legislation dealing with the disposition of the United States' reversionary interests in rights-of-way completely meaningless, null and void. See infra, Part I.C. Given the similar fee-like attributes of the rights-of-way granted by the 1875 Act, these grants also segregate or sever these rights-of-way from the public domain, prevent their passage to the subsequent homesteaders, and retain the reversionary interest in the United States. Whatever differences may exist *29 between the limited fee and 1875 Act rights-of-way is immaterial in this case. As the Mauler court reasoned in holding narrow differences in grants immaterial: Because the land grants in this case were comprised of federal lands in the public domain and were given for exactly the same purpose as the grant in Townsend, we readily conclude that the strip of land at issue here was subject to an implied right of reverter in the United States. 309 F.3d at 1001. Nor, contrary to the argument asserted by Landowners (Br. 13-15), is construing the 1875 Act to retain the reversionary interest in the United States contrary to Great Northern. Great Northern examined addressed the question of whether the Act granted the subsurface mineral rights to the railroads. It did not speak to the question of what interests the United States retains. Nothing in Great Northern indicates that Congress intended to retain the reversionary interests in rights-of-way granted pri-

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or to 1871 and relinquish them thereafter. To the contrary, as discussed in the following section, there is ample evidence that Congress understood it had retained the reversionary interest in both pre- and post-1871 rights-of-way. *30 C. Congress repeatedly demonstrated its understanding that the United States retained the reversionary interest in the 1875 Act rights-of-way. Numerous subsequent statutes pertaining to the 1875 Act demonstrate Congress's consistent view that the United States retained the reversionary interest in the 1875 Act rights-of-way. "It is settled that subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject." Great Northern, 315 U.S. at 277 (internal quotations omitted). In particular, courts may consider subsequent legislation that clarifies or depends on a particular interpretation of earlier legislation to have effect. See Bell v. New Jersey, 461 U.S. 773, 789-90 (1983) (view of later Congress persuasive in determining meaning of earlier statute); Wilson v. United States, 917 F.2d 529, 535 (Fed. Cir. 1990) (same, 1987 statute used to determine meaning of 1956 enactment); Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (giving "significant weight" to the views expressed in 1972 statute to determine the meaning of 1936 statute); International Bhd. of Teamsters v. United States, 431 U.S. 324, 393 (1977) (1976 amendments used to construe 1946 statute). 1. The 1898 Act: Extending the 1875 Act to Alaska In 1898, Congress passed an act "Extending the homestead laws and *31 providing for the right of way for railroads in the District of Alaska." See Act of May 14, 1898, c. 299, 30 Stat. 409 (codified at 43 U.S.C. §§ 942-1 to 942-9). The 1898 Act was "grounded largely upon the right-of-way act of 1875." See H. Rep. No. 137, 55th Cong., 2d Sess. (1898). The 1898 Act reproduced verbatim the very language that Great Northern relied on to hold that the 1875 Act rights-of-way were railway easements, including the language providing that land crossed by the rights-of-way shall be disposed "subject to" the right-of-way. See 43 U.S.C. §§ 942-1, 942-2, 942-5. Thus, the 1898 Act granted the same type of railway easements as the 1875 Act, and provided for the same type of conveyance of the surrounding lands. See, e.g., Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (statutes with similar language and subject matter should be given the same meaning). However, by the time of the 1898 Act, Congress had learned that the forfeiture provision of the 1875 Act was not self-executing, and that forfeitures were being delayed by the need for court orders declaring forfeiture. Thus, Congress added language to the 1898 Act declaring that, if construction was not completed on a rightof-way within five years, forfeiture would occur "without further action or declaration." 43 U.S.C. § 942-5; see also Columbia Valley R. Co. v. Portland & S. Ry. Co, 162 F. 603, 606 (9th Cir. 1908) (same language in *32 similar 1906 Act "takes the place of the adjudication of forfeiture"). This provision also demonstrated Congress's recognition that the United States retained the reversionary right in the railway easements granted under the Act, stating that, upon forfeiture, the rightof-way "shall revert to the United States without further action or declaration."

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Id. Thus, the 1898 demonstrates that Congress understood that the railway easements granted in both the 1875 and 1898 Acts reverted to the United States and did not devolve to the patentees of adjacent land. The 1898 Act demonstrates that the phrase "subject to" does not, as Landowners contend, show that the United States did not retain any interest in the land after it was patented (Br. 14) or that only a use restriction was conveyed to the Railroad (Br. 16-17). Indeed, the Supreme Court itself has used the phrase "subject to" to exclude a fee interest. See Stringham, 239 U.S. at 46 ("defendants' title under the placer patent was subject to this [limited fee] right of way"). Interior has used the "subject to" language in the same manner. See State of Wyoming, 27 IBLA 137 (1976) (states seeking patents to sections of "school lands" traversed by pre-1871 railroad limited fee rights-of-way take such sections "subject to" the rightof-way); see id. at 168 (Ritvo, A.J., dissenting) (language stating state took lands "subject to" right-of-way "is not indicative of any title or estate vesting in the State to the lands within the right-of-way"). *33 The 1898 Act also demonstrates that Congress understood that it retained the reversionary interest in the railroad rights-of-way well before the Supreme Court ruled in Stringham (1915) that such interests constituted limited fees. Hence, Landowners are wrong (Br. 28-39, esp. 37) that subsequent statutes demonstrating Congress's understanding that the United States retained the reversionary interest in 1875 Act rights-of-way were based on Stringham's holding that the 1875 Act rights-of-way were limited fee interests, which was subsequently overruled. 2. The 1906 and 1909 Acts: Enforcing the 1875 Act's forfeiture provision. Congress made explicit its understanding that the 1875 Act retained the reversionary interest in the United States in two nearly identical statutes enacted in 1906 and 1909. See Act of June 26, 1906, c. 3350, 34 Stat. 482, and Act of February 25, 1909, c. 191, 35 Stat. 647 (codified as amended at 43 U.S.C. § 940). The Supreme Court relied on these statutes in Great Northern in construing the 1875 Act, 353 U.S. at 276-77, and they similarly may be relied on here. These statutes were intended to enforce the Act's forfeiture provision by legislatively declaring all existing unused rights-of-way on which plats had been filed to be forfeited. See H.R. Rep. No. 2283, 59th Cong., 1st Sess. (1906); 40 Cong. Rec. 4615 (1906). They provided that where a rail line had not been constructed within *34 five years of the grant of an 1875 Act right-of-way, the right-of-way shall be, and hereby is, declared forfeited to the United States * * * and the United States hereby resumes the full title to the lands covered thereby freed and discharged from such easement, and the forfeiture hereby declared shall, without need of further assurance or conveyance, inure to the benefit of any owner or owners of land heretofore conveyed by the United States subject to any such grant of right of way or station grounds * * *. 43 U.S.C. § 940 (emphasis added). These statutes again recognized that upon forfeiture of an 1875 Act right-of-way, the United States resumed full legal title to it and provided for the automatic conveyance upon such forfeiture from the United

Exhibit 3 to Defendant's Response to Court's January 30, 2007 Order
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-cv-01544-LMB 2003 WL 25291552 (C.A.Fed.) (Cite as: 2003 WL 25291552)

Document 67-4

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States to the owner of lands traversed by the right-of-way. Like the 1898 Act, the 1906 and 1909 Acts also show the error of Landowners' arguments about the meaning of the language and interests conveyed in the 1875 Act. These Acts expressly recognized that the right-of-way granted was an "easement," but one in which the United States retained the reversionary interest. Additionally, this use of the term "easement" post-dated Townsend's characterization of pre-1871 rights-of-way as "limited fee" interests, demonstrating that Congress was not acting based on an erroneous application of Townsend to the 1875 Act. The Acts also expressly recognized that the land crossed by the right-of-way had been conveyed "subject to" the right-of-way, demonstrating again - as discussed above - that this *35 language does not convey a fee simple interest to the homesteaders burdened only by a common law easement. 3. The 1922 Act: Disposition of 1875 Act abandoned rights-of-way. Congress for the fourth time demonstrated its understanding that the United States retained the reversionary interest in the 1875 Act rights-of-way in 1922, with the enactment of the Railroad Right-of-Way Abandonment Act. See Act of Mar. 8, 1922, c. 94, 42 Stat. 414 (codified at 43 U.S.C. § 912). The 1922 Act was specifically intended to address forfeitures or abandonments of rights-of-way granted under the 1875 Act. See Sen. Rep. No. 388, 67th Cong., 2d Sess. (January 6, 1922), at 1 (referencing section 4 of the 1875 Act "under which most of the rights of way over public lands have been granted") and at 2 (explaining how the statute operates on 1875 Act rights-of-way). The 1922 Act provided that whenever a railroad ceased use and occupancy of a right-of-way granted to it from the federal public lands, all right, title, interest, and estate of the United States in sai