The opinion of the court was delivered by: Alan B. Johnson, District Judge.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on cross motions for summary judgment. The Court, having carefully reviewed the motions and the materials filed in support thereof and opposition thereto, and being fully advised in the premises, FINDS that plaintiff's Motions for Summary Judgment on cross claims should be GRANTED and defendant's Motion for Summary Judgment should be DENIED for the reasons stated below:
Plaintiff United States (the "Government") brings this action seeking a judicial declaration of abandonment of approximately 66 miles of railroad right-of-way running from Laramie, Wyoming to the Colorado border by way of Fox Park, Wyoming. Upon abandonment, the United States also seeks to quiet title to the abandoned railroad right-of-way in the Government. Defendant, Marvin M. Brandt Revocable Trust and Marvin Brandt, trustee, (collectively "the Trust") assert that the Trust has a vested interest in the railroad right-of-way and opposes the Government's claim. The Trust also seeks to have the title to the railroad right-of-way quieted in its favor. Pursuant to Fed.R.Civ.P. 13(b), the Trust also filed a counterclaim seeking to quiet title to a right-of-way easement for Forest Service Road ("FSR") 512. The Trust claims the easement has been terminated by the United States Forest Service. The road at issue also runs through land owned by the Trust in Fox Park, Wyoming. The Government disputes the road easement has been terminated and alleges that the express conditions of abandonment contained in the original deed have not been met. The Government filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56(b) on the railroad right-of-way and FSR issues and the Trust reciprocated in kind.
The Government filed its complaint with this Court in July of 2006. It seeks a declaratory judgment that the Wyoming–Colorado ("WYCO") Railroad Company, Inc. right-of-way, lying within the Medicine Bow National Forest in the State of Wyoming, had been abandoned. The Government also initiated this action against twenty-six separate parties who may have claimed an interest in the right-of-way. On August 8, 2006, the Trust filed a counterclaim seeking to quiet title to the railroad right-of-way in the Trust. Also on August 8, 2006, the Trust filed a second counterclaim against the Government seeking to quiet title to a 0.2 mile section of FSR 512. On October 1, 2007, the Trust amended its second counterclaim regarding the 0.2 mile section of FSR 512 to include the entirety of FSR 512 that crosses the Trust's property (approximately 0.7 miles).
On October 10, 2007 the Government filed a motion for summary judgment and a brief in support of its motion against the Trust. Also on October 10, 2007, the Trust filed a motion for and brief in support of summary judgment on its railroad right-of-way counterclaim and its FSR 512 counterclaim against the Government. On November 13, 2007 the Trust filed its "Brief In Opposition" to the Government's motion for summary judgment disputing the Government's interest in the railroad right-of-way and seeking to have all right, title, and interest in the railroad right-of-way quieted in the trust. Further, the Trust argues that to quiet title in the Government would constitute a Fifth Amendment taking requiring just compensation. That same day, the Government filed its response to the Trust's motion for summary judgment on the railroad right-of-way. Since the parties last motions were filed, all parties but the Trust have settled with the Government. Thus, the current action between the Government and the Trust is the only matter remaining for this Court to decide.
APPLICABLE FACTS AND PARTIES' ARGUMENTS ON RAILROAD RIGHT–OF–WAY
HISTORY OF THE RAILROAD RIGHT–OF–WAY
In 1908, the Laramie, Hahn's Peak and Pacific Railroad Company ("LHPPR") was granted a right-of-way (ROW) for railroad purposes through the public lands of the United States under the General Railroad Right–of–Way Act of 1875, 43 U.S.C §§ 934–030 ("1875 Act"). The grant was for a two-hundred foot wide ROW, approximately 66 miles long. LHPPR completed construction of the railroad from Laramie to Colorado in 1911. Later, the Trust's predecessor in interest acquired Tract 37, Township 13 North, Range 78 West 6th P.M. by a patent issued from the United States under 16 U.S.C. § 485 for 83.32 acres on Februaryl8, 1976. In November 1987, WYCO became the latest successor to the LHPPR Company.
On May 15, 2001, WYCO filed a Notice of Intent to Abandon Rail Service with the Surface Transportation Board ("STB"). The STB approved the abandonment petition subject to satisfaction of certain abandonment conditions. The STB removed the last condition thus effecting its approval of the abandonment of the rail line on December 31, 2003. On January 15, 2004, WYCO notified the Secretary of the STB that it had completed its abandonment of the rail line.
In 1922, Congress passed the Abandoned Railroad Right–of–Way Act, codified at 43 U.S.C. § 912.*fn1 Section 912 granted to landowners adjacent to previous railroad right-of-way grants any right and title that the United States would have retained upon abandonment. Congress later modified § 912 by passing the National Trails System Improvement Act of 1988, codified at 16 U.S.C. § 1248(c).*fn2 By modifying § 912, the United States retained any and all rights and interests in abandoned railroad rights-of-way that would have been otherwise granted to adjacent landowners under § 912 so long as those rights-of-way had not been utilized as a public highway within one year of abandonment. Section 912 requires a judicial decree or Act of Congress to relinquish the claim the Government retained upon abandonment. As of the date of this memorandum no judicial decree of abandonment of the railroad ROW has occurred.
THE GOVERNMENT'S ARGUMENTS
The Government contends that Tenth Circuit case law supports its position that, upon abandonment, all right, title, and interest in the railroad ROW reverts to the Government. The Government relies on Marshall v. Chi. & Nw. Transp. Co., 31 F.3d 1028 (10th Cir.1994); Phillips Co. v. Denv. & Rio Grande W. RR Co., 97 F.3d 1375 (10th Cir.1996); and Nicodemus v. Union Pac. R.R., 440 F.3d 1227 (10th Cir.2006).
In Marshall, the owners and successors in interest of property adjacent to an abandoned railroad ROW in Natrona County, Wyoming, brought an action to quiet title against Chicago and Northwestern Transportation Company ("CNWT"). Marshall v. Chi. & Nw. Transp. Co., 31 F.3d 1028 (10th Cir.1994). In 1980, CNWT assigned a 60–foot–wide strip of its 200–foot–wide ROW to an unaffiliated partnership. Id. at 1028. The partnership then assigned its interest to Casper Creek Development, Inc. Id. CNWT filed an application for abandonment of the ROW with Interstate Commerce Commission, which was approved on November 30, 1988. Id. CNWT discontinued its use of the ROW on January 15, 1989. Id. In June of 1990, CNWT conveyed the remaining 140 feet width of the ROW to Forgey Ranch Company. Id. The company completed track removal near the end of August, 1990. Id.
In Marshall, the Tenth Circuit affirmed this Court's holding that 43 U.S.C. § 912 applies to both pre–1871 and post–1871 grants for railroad rights-of-way.*fn3 The Tenth Circuit held in favor of the owners of the adjacent land. The Court reasoned that:
[Section] 912 provides in essence that when public lands of the United States have been granted to any railroad company for use as a right-of-way, and the railroad company thereafter ceases to use and occupy the right of way by, for example, abandonment, as decreed by a court of competent jurisdiction, then all right, title, interest, and estate in the right of way shall be transferred to and vested in anyone to whom or to which title of the United States may have been granted by way of patent to convey the whole of the legal subdivision previously traversed by the right of way.
Marshall, 31 F.3d at 1031. The Tenth Circuit also stated that:
[Section 912] is designed to cover the situation where the United States grants a railroad company a right of way over public lands and thereafter conveys ... to another the whole of the legal subdivision[s] ... traversed or occupied by such railroad. [Which] appears to cover the instant case.
Marshall, 31 F.3d at 1032 (internal citations omitted). Finally, the Tenth Circuit stated: "In enacting these statutes, Congress clearly felt that it had some retained interest in railroad rights-of-way." Marshall, 31 F.3d at 1032 (citing State of Idaho v. Or. Shortline R.R., 617 F.Supp. 207 (D.Idaho 1985). Thus the Tenth Circuit held that § 912 applied to rights-of-way like those at issue in Marshall and that when those rights-of-way are abandoned, the Government conveys its retained interest to the adjacent landowners. See id.
The Government contends the holding in Marshall is significant in the instant case because the Tenth Circuit held that under § 912, the United States retained an interest in abandoned 1875 Act railroad rights-of-ways. The instant case concerns a grant for a railroad ROW made under the 1875 Act. Therefore, under the Tenth Circuit's interpretation of § 912 in Marshall, the United States retained an interest in the WYCO ROW.
The Government cites Phillips for the proposition that under § 1248(c) any right to an abandoned railroad ROW remains in the United States. Phillips Co. v. Denv. & Rio Grande W. RR Co., 97 F.3d 1375 (10th Cir.1996). In Phillips, the owner of land adjacent to a railroad ROW sought a retroactive determination of abandonment and to quiet title to the ROW pursuant to 43 U.S.C. § 912 in order to avoid the effects of 16 U.S.C. § 1248(c). Id. The court stated that before § 912 can be given effect it must receive authorization from the Interstate Commerce Commission ("ICC") to abandon the railroad ROW. Id. at 1377. The ICC, the agency responsible for approving the abandonment, stated that it had no authority to declare the railroad ROW abandoned retroactively. Id. The Tenth Circuit held that it was compelled to defer to the agency. Id. (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The Court also held that once § 1248(c) had been enacted, the reversionary interest was held by the United States and not adjacent landowners. Id. at 1376 n. 4.
The Government contends Phillips is relevant to the instant case because the plaintiff sought a retroactive declaration of abandonment of the rights-of-way in order to circumvent the grasp of 16 U.S.C. § 1248(c). The Tenth Circuit did not address what role § 1248(c) plays in the final analysis of the case. However, based on the language the Court employed, any right an adjacent landowner received under § 912 was removed by Congress's passage of § 1248(c) in 1988. The Government's reasoning seems in accord with this interpretation.
The Government points to the Tenth Circuit's decision in Nicodemus v. Union Pacific Corp., 440 F.3d 1227 (10th Cir.2006). In Nicodemus, landowners sued Union Pacific Corp. for trespass and unjust enrichment arising from the railroad's grant of subsurface easements to telecommunications providers for the right to install fiber-optic cables in its railroad ROW. Nicodemus, 440 F.3d 1227. The District Court of Wyoming dismissed the action for lack of federal question jurisdiction. Nicodemus v. Union Pacific Corp., 204 F.R.D. 479, 493 (D.Wyo.2001) (holding the interpretation of federal land grants to railroads is not a substantial question of federal law so as to afford federal question jurisdiction over state law claims). The Tenth Circuit disagreed with this Court's decision. Nicodemus, 440 F.3d at 1229 (10th Cir.2006). It held that the interpretation of federal land grants involved a substantial federal issue deserving of the federal forum for resolving the issue. Id.
The Tenth Circuit stated that under 43 U.S.C. § 912:
[L]and given by the United States for use as a railroad right-of-way in which the United States retained a right of reverter under N. Pac. R.R. v. Townsend, 190 U.S. 267, 23 S.Ct. 671, 47 L.Ed. 1044 (1903) must be turned into a public highway within one year of ... abandonment or be given to the adjacent land owners.
Nicodemus, 440 F.3d at 1236. The Nicodemus court further explained that:
Subsequently Congress enacted the National Trails System Improvement Act of 1988, 16 U.S.C. § 1248(c), under which those lands not converted to public highways within one year of abandonment revert back to the United States, not adjacent private landowners.
Id. Thus, that court held that "the United States has a reversionary interest in the lands when no longer used for the designated purposes ... [t]hus the government has a direct interest in the determination of property rights granted to the railroad." Id. The Government relies on the holding in Nicodemus to support its claim of a reversionary interest in the railroad ROW at dispute in the instant case.
Finally, the Government denies the Trust's assertion that to quiet title in the Government constitutes a Fifth Amendment taking requiring just compensation. The thrust of the Government's argument seems to be that (1) under Marshall and Phillips, the United States retained a reversionary interest to all railroad rights-of-way; (2) under § 912, if the ROW was abandoned by the railroad then the United States conveyed its reversion to the adjacent landowner; (3) section 912 as modified by § 1248(c), retains the reversion held by the United States under § 912 and does not convey it to adjacent landowners; (4) following the reasoning of the Tenth Circuit, the United States never relinquished its reversion prior to abandonment, the railroad ROW never vested in the adjacent landowner, and having never vested, retention of the reverter cannot be viewed as a taking, i.e., you cannot lose what you never possessed. Retaining this reversionary interest, the Government asks this Court to decree the ROW abandoned and to quiet title in the ROW in the Government.
The Trust argues that the Government did not retain a reverter in rights-of-way granted under the Act of 1875. Citing recent federal decisions in support of its argument, the Trust contends that this Court should hold consistent with these decisions and grant summary judgment in favor of the Trust. The Trust also offers its line of decisions to support its argument that to quiet title in the Government constitutes a taking requiring just compensation.
The Trust argues that WYCO received only an easement in the Act of 1875. The Trust claims that the Patent reserved a reversion to the owner of the surrounding land and its predecessor-in-interest and reserved nothing for the United States. Citing Hash v. United States, 403 ...