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Argument recap: Oh, give me land, lots of land . . .

With Justice Stephen G. Breyer attempting repeatedly to remember what he had been taught in property class in law school, the Supreme Court on Tuesday spent a seminar-like hour exploring what it means when the government gives land away, and then seeks to take it back.  There was much talk of easements, and limited fees, servitudes, and reversionary interests, but in the end it was far from clear what would guide the Court to a ruling in Marvin Brandt Revocable Trust v. United States.

One of the most important questions that the Justices wanted answered, however, went entirely without an answer: what would the impact be of a ruling in this case — that is, how much land does the government claim to own, and how would existing occupants be disturbed if it reclaimed perhaps millions of acres out West?

Justice Breyer, who seemed to enjoy this argument a great deal, suggested that some people might be sitting in their homes, quietly enjoying property that they thought they owned, when all of a sudden a bicyclist — using a bike trail that had been marked out on the land — might speed through their rooms.

But neither a sometimes faltering lawyer for a land-owning trust, Steven J. Lechner of Lakewood, Colorado, and an energetic and fast-talking Justice Department lawyer, Anthony A. Yang, had any idea what was actually at stake in terms of the number of acres or the varying terms of ownership.  (Lechner’s quite apparent nervousness might well have been explained because, after he had spoken only a few sentences, Justice Antonin Scalia brusquely asked: “You’re not reading this?”  Lechner didn’t answer, simply standing silent for a lengthy embarrassed moment.  Lawyers at that lectern are, it seems, supposed to extemporize.)

This case is basically about a series of federal laws — the most important, apparently, an 1875 statute — that represent the sometimes meandering policy of Congress in giving away the public lands for railroad development.  But the case is also about who owns or controls the land when the railroads stop using it for their rails, stations, and switching yards.

Lechner’s client, a Wyoming family that got a government grant of about eighty acres of land in 1976, is now resisting the federal government’s claim to about ten acres of it.  Their attorney argued that the government had made the grant only subject to the railroads’ temporary use of a strip of it, with no promise that any part would return to federal ownership.

The attorney stuck fairly closely to his chosen line of argument, although he was pressed heavily to defend it.  His key points were that the terms of the family’s grant were clear and favored their right to keep all of the land, and his core legal claim that a 1942 Supreme Court ruling that seemed to strongly buttress their claim.

He had Scalia on his side almost all the way (at least after the Justice’s initial taunt).  But he and government lawyer Yang had to cope, repeatedly, with Justice Breyer’s sometimes awkward efforts to remember the phrases he had learned as a student of property law.

Lechner’s presentation ended on another somewhat difficult moment, when Justice Anthony M. Kennedy said “you confuse limited fee with fee simple or absolute fee.”  He said that what he was talking about was “limited fee with implied condition of a reverter” — but that, he insisted, was not what his client had received.

Yang, an Assistant to the U.S. Solicitor General, had his own challenging opening moment.  He had hardly begun when Justice Samuel A. Alito, Jr., said the legal brief the government had filed “gets a price for understatement,” in the very cautious language that document had used to describe what that significant 1942 decision had meant.  (That language was intended to be, and was, grudgingly helpful to the Brandt family’s claim.)

Yang, though, was not at all put off by Alito’s comment, quickly reciting other parts of the brief that had made the central point he was now making about the government’s claim to have railroad rights-of-way land revert to the government once the railroad had abandoned them.

His most challenging questioners were Justice Breyer and Justice Elena Kagan, both of whom tried repeatedly to get him to give some estimate of how much land was at stake, and how many peoples’ lives might be disrupted if a vast expanse of public land were now reclaimed by the federal government.   Yang stubbornly repeated: “We don’t have good numbers on that.”

Justice Scalia took up that question as Yang’s time was expiring, expressing astonishment that the federal government was saying that “we don’t know what we own.”  Still composed, Yang simply replied that the data “is not centralized.”

Lechner, on rebuttal, said that while he had no idea what was at stake overall, he did know that the Brandt family owned eighty acres on its grant from the government, and now the government wanted ten acres back.

Recommended Citation: Lyle Denniston, Argument recap: Oh, give me land, lots of land . . ., SCOTUSblog (Jan. 14, 2014, 4:10 PM),