Legal Case Summary

We'll hear argument next in case 12-1173, Marvin Grant Revigable Trust versus United States. Mr. Electioner? Mr. Chief Justice, and may it please the Court, if upheld, the decision below will upset 100 years of property law and title to perhaps a million acres of land based upon and applied reverse and area interest that the government recently created. I like to make three points. First, the decision below violates Leo Sheep, where this Court rejected the government's attempt to create a property interest through implication and reaffirmed that the government does not retain any interest, not express the reserved and the patent or the granting statute. Two, the decision below is contrary to both the government's argument and this Court's ruling in Great Northern that 1875 back writes away our easements and not fees. And filing the decision below is inconsistent with the Department of Interior's long-standing interpretation that the 1875 act granted only an easement. It is axiomatic that the highest evidence of title in this country is a patent from the government. When the government issues a patent, it divest itself a title, except for those interests expressly reserved. Here, the patent did not reserve any interest in the 1875 act. You're not reading this, are you? That's all right. Here, the patent did not reserve any interest in 1875 act right away. Yet the government knew how to reserve interest at that time because it reserved the interest for ditches and canal and reserved the right to two-fourth service road when it issued the patent. And some interest were reserved by the government in 1976 shows that other interests were not. Well, under Section 1912, the government could did reserve an interest for a public highway, is that correct? No. No. Section 1912 has to be read in conjunction with this Court's decision in Northern Pacific B. Townsend and Strangell. And in those decisions, this Court held that railroad rights away were limited fees with implied reversionary interest. The patent you talked about, I'm not recalling it exactly, it had, it mentioned the railroad interest, right? Yes. It mentioned it in context of the grants title is subject to those rights for railroad purposes, as it been granted to the railroad under the 1875 act. So it didn't characterize it as either an easement or a fee with an implied revertor. That it was subject to those rights for railroad purposes, as it had been granted to the railroad, sounds like it was granted subject to a servitude. Rights for railroad purposes sounds like a servitude. And of course, that's how the Department of Interior interpreted it at the time with these 1875 rights away were easements. Following its longstanding interpretation plus this Court's ruling in Great Northern that these were easements

. And at the time that regulation was the law of the land, and that's that controlled the title that the grant got to the point. What they're saying, I think the government's point is the other side is saying, and I don't remember the term, if I'm from my property law, it was, what's the right term? You grant a, black acre to a in his heirs, that's a fee simple, but it's subject to a shifting, it's subject to divestiture, subject to a condition subsequent. What's the right term? Or chips at that? Defeasible fee? Or a? There could be. There was a fact that additional service there. But anyway, that's what they're saying. And they're saying that that's for purposes of who owns the land, the mineral rights, it's treated as an easement. But for purposes of deciding who it reverts to, it's treated as a fee subject to a shifting use or whatever you call it, subject to what it is a subject to right or reverse. But that's similar to the argument that the government made in 1942 in Great Northern. The limited fee in the same way. But it's different in this respect. It's different that there they were talking about who owns the mineral rights. So for those purposes, they say it's treated like an easement. But for who gets the revertor, it's drifted like a shift of the fee. K. Well, it's nice. Do you know of any other real estate thing, which is an easement for one purpose and the fee for another? The government absolutely denied in Great Northern, didn't it? It was, that was the government's case. This was not a fee. Exactly. That would say it's, you know, for some purposes it is for, they said it was not a fee. And that's what the Court held, in accordance with what the government wanted, right? Correct. And that case has been around for how long? Seven, two years. Yeah. And the case explicitly says it's an easement. And people have been buying and selling real estate. I assume in reliance on that case for that. That entire period of time

. And now the government has this new theory that for some purposes it's a fee, for some purposes it's an easement. That's not what Great Northern said. No, but I think it's important that the government, the argument that the government is making today is similar to their alternative argument that they made there in Great Northern saying, okay, well, it's not an easement that it's a limited fee in the surface. This Court in Great Northern did not even address that alternative arguments, which shows how strongly this Court in Great Northern believed was just an easement. And this will be- They're not really alternative. Well, maybe it's all right to say they're alternative arguments, but they're mutually exclusive arguments. I mean, they're alternative in the sense that they led to the same result. But the one argument is this is A, and the other argument is this is not A. Yes, they'd be mutually exclusive. All right, we have a brief here from the cities, and they point out that, of course, there is a reliance on your side, your abs, I believe you're absolutely right. But they say there's also a lot of reliance on the other side because cities have built highways, and they've- or states have, and they've converted it to use under patents or under statutes that the United States gave them that right. And all those are going to be invalid if you win. Now, what's your response to that? They would all- I'm not sure that they would be invalid. I would. Well, I don't know where all the- the city public highways interest are. Visa B, the land- where- how the land was originally patented. It could have been originally patented in a town site plaque or something like that, that as opposed to here, where it was originally patented to one under one patent, and I'm not sure how all the cities' property was acquired. I assume your answer would be that if it's a choice between disappointing people who properly be lined on the law and disappointing people who were- were not following the law, it's clear who should- who should take it in the neck. It's the latter, isn't it? Absolutely. Plus, the cities also have the power of them- the power of them don't make. And if they would want one of public highway, they certainly could condemn one. I thought the cities were relying on Section 912 as applied to the 1875 Act. That's what they- that's what the cities were relying on, but you must keep in mind that Section 912 did not alter or amend the 1875 Act. So, the nature of the grant, the 1875 Act, must be looked through the eyes of Congress in 1875. In 1922, when Congress passed Section 912, Congress was grappling with what to do with these isolated strips of land that would be administratively burdensome to manage. And they said, well originally they said, well, let's give them to the settlers because they're the ones that entitled to in the first place

. And then- and as an afterthought, they said, well, let's put these in the- as a public highway. But they did not amend the grant under the 1875 Act, they- or alter the amended grant. Well, can you explain to me something about that 1875 Act in a bit? We know that until 1871, this railroad, right to play, will consider to leave the government in the position of having a reversionary interest. Correct. And I don't see anything in the 1875 Act to statute. There was- and into the giving away of large- large quantities of land to the railroad. And so that was out. But what is there in the 1875 Act that changes the right of way from what it had been up until 1871? As the government argued in Great Northern and as this Court adopted that argument, the key provision in 1875 Act is Section 4, which reserved the right to Congress to dispose of the lands underlying 1875 rights away to settlers. And this is a reflection of the change of policy in 1871, because that's where the Congress changed its policy to- in an effort to secure homesteads to actual settlers as opposed to benefiting the railroads. And Section 4, as this Court said in Great Northern, after language to demonstrate a conveyance of an easement, it would be hard to find. But the bearable was not benefited by the end of the 1871 understanding of the right of way. The one that was benefited was the government- government- government that that- the land. And so it's not- it- we're not going to- we're not going to stop giving land to the railroad, or yes. But the beneficiary that is losing out under your interpretation is the government. But it's- it's not only my interpretation, it's the interpretation of the Court in Great Northern that it was an easement. And this Court was not- this Court in Great Northern knew the difference of the word easement and knew what the significance of using that term would mean, and so did the government at the time. There were- there were points along the right of way where the railroad needed a station or a wider area for water towers and so forth. And it- usually could receive those by simply filing a patent if it was within a permitted zone if it was within- if they were 20 miles equal distant or something like that. How did they get those additional lands? The station- one way they could do them was to condemn. Well, well- absent condemnation could they just receive them from the government? Well, under the 1875 act, yes, the Congress did provide four station grounds. The railroad could secure station grounds by filing a map of the station grounds with the local land office and once the Secretary approved, then they would acquire the station grounds. But the nature of the grant that they require in the station grounds is the same as for the right of way and that's merely an easement. So it- so it was clear at the time of the grant that it was on the- that what was granted was co-extenses with what the right of way was- with the- with the railroad right of way. Yes, and that was how the Department of Interior originally interpreted in 1888 as the- the railroad didn't get a fee in anything. It got a right- it got an easement in the railroad- in the right of way and in the station grounds. Are there any instances in which the railroad can keep its station even if it abandons the right of way or does the station fall with the right of- when the right of way is abandoned? I think the right- the station grounds are tied to the right of way, so if you're banning the right of way, the station grounds would also be extinguished and unburdened the underlying fee

. Could I ask you again about Section 912? Your patent says that it is subject to those rights for railroad purposes that have been granted to the railway company in particular, and it's a successors on the signs. Now, that was- that patent came after the enactment of 912 and 912 clarifies the rights of order. Changes the rights of railroad companies and says that if they abandon property within one year after that, there can be a public highway established on that property. So why wasn't your patent subject to that? Well, first, I don't- 912 did not change the grant to the railroad. 912 applies if the government has any remaining interest in the right of way. Well, you didn't get your property from the railroad. You got it from the government. You got it from the government. You got it from the patent from the government. So the question is what were they conveying to you? And if you read the patent in connection with 912, isn't it clear they're conveying to you? Arguably, everything other than this right to have a public highway established on that land when it was abandoned by the railroad. They were conveying it subject to those rights for railroad purposes, or this is specific language in it. And the 912 does not create a reservation, doesn't create a right or revert, or- it was simply to deal with what they were going to do with these strips of land upon abandonment. Because at the time that's when the railroad first began, Congress was worried we were going to have these isolated strips. It didn't change the 1875 act. It didn't change the previously granted rights away to expand the scope of them. But when they were abandoned and they came back under the law of the time that the government had the implied condition of revert, they came back, the government said, okay, well, if you want to establish a public highway, that's fine. Otherwise it's going to go, it's going to enure to the benefit of the settler. But it didn't change the nature of the grant, it didn't change the 1875 act. It didn't create it, it did not create an interest that wasn't there before. It was just how to deal with the interest that the Congress thought it had after this court's decision in balancing and strengthening. I still don't understand it. You say this was purely an easement. All right. So that means that when there's an abandonment, the government has complete title to the property, right? They convey that property to you, but before they do that, they say that there's this reservation of rights with respect to the establishment of highway. I'm one, well, I'm troubled under your hypothetical, the government still owns the underlying land when the railroad's banded. So when the railroad is abandoned, the two estates merge

. There was one. That's your argument, isn't it? Well, I think that's the argument under the common law too. It's what's written. It may be a good argument, but that's right. In 12 says that when the railroad abandoned a piece of the right of way, okay, it then says that the interest of the United States, or a right title and interest in the state of the West, that's the one that's being invested in the town that builds Iowa, your point is, that's true, but where they previously, where they have previously, where they have given and where they conveyed it to a private person, they didn't have any right title and interest because on abandonment, it was simply an easement and on abandonment that goes to the property owner who owns the land on either side. But is that, I mean, your point is that the United States didn't have any right title and interest on the abandonment unless the United States continued to own the property. Correct. All right. So that is your point. They can't convey what they don't have. Correct. And there's, let's take this in a normal easement situation. I have an easement to go through your backyard, to get to the street. Can I assign that easement to another person so that the person who buys my home can now walk through your backyard? In certain circumstances, yes. So what's wrong with the concept that when this land was given to you as a railroad right away, when it's abandoned that the railroad in essence under 1912 and under the 1922 act, that you are giving that easement to the U.S. to use as a right of way. And so whether it's a trail or a highway or any of the other items that are specified in the statute, that that easement is continuing to be used by the person who gave it, which was originally the U.S. And your patent was given subject to that easement, to that right of way. It was subject to those rights for railroad purposes, correct. Well, what was the language of the patent? Subject to those rights for railroad purposes, as it been said. Was that the exact language? I thought it was for a right of way. Okay, exact language on page 78 of Petitioner's appendix. Petitioner's appendix, 78, sorry. Too many briefs, sorry

. 78. And what do you want us to read there? Well, there was a question about whether that was actually the language, which was subject to those rights. The last paragraph subject to those rights for railroad purposes have been granted to the railroad under the 1875 Act. The 1875 Act, what was given to the railroad, was a right of way. A right to lay their tracks and a right of passage. Just as I'm seeing the 1875 grant, it was the right of way through public lands. Yes, and as the government argued in Great Northern, that right in the 1875 Act was a right to lay tracks and a right of passage in easement. I know Great Northern said so, and that's surely a very strong support for your view. But why did Great Northern think that there was a difference between pre-1871 grants and post? First, the shift in Congress's policy, and the railroads fell out at disfavor and Congress passed resolution, saying, you know, we want to hold onto these lands to secure homesteads for actual settlers. I mean, I guess I had thought if you were just dealing with this as a matter of first impression, that the shift in Congress's policy was a shift about whether to give away, you know, huge swaths of land to the railroads. And that Congress, indeed, decided enough of this, we're not going to give these checkerboard grants of land to the railroad because they're making a mint from this, and we'd rather give it to homesteaders. But there was, I don't see any evidence that there was any shift in policy or any reason why there would be a shift in policy as to what the rights of way were, whether they were easements or whether they were limited fees. Well, Section 4 has a lot to do with that, and that is where Congress reserved the right to dispose of the underlying lands to the settlers. That provision is not found in the pre-1871 railroad grants. And this Court in Great Northern looked at that, and you say you got to look at Section 4, that provides light on how to interpret the right-of-way grant in Section 1. And because of Congress's intent and the legislative history surrounding similar language when Congress passed in 1872, they called it the right-of-way is merely going to be in a conference. I guess, you know, again, if you were just looking at this as a matter of first impression, the language of Section 4 does not seem to me to be very indicative of anything. You know, it says subject to the right-of-way, subject to the right-of-way, whatever the right-of-way is, subject to the right-of-way. If it's an easement, subject to the right-of-way, if it's a limited fee, doesn't seem to pick one or the other. But as the government argued in Great Northern, it would be silly to pat in the underlying land subject to a fee. I mean, there would be no reason for the section, that language at all, if the railroad got a fee, and then you patented the, in effect, it would be the adjacent land, not the underlying land. There would be no reason to say that the adjacent land is subject to a fee, because if the limited fees, they were envisioning those things going to the center of the earth. So you'd be patented in the adjacent land. But under Section 4 and has Great Northern interpreted, the patents go to the underlying land, and that's what happened in this case, because Brandoan is the underlying land in minerals. Well, and your answer is, it seemed to me, and maybe you have to do this properly, that you confused limited fee with fee-simple, with absolute fee. Now, obviously, that's true of this, the same owner, they merge

. Well, I was using limited fee in the context as this Court used it in Townsend Limited fee with the implied conditioner revertor. I mean, even in the Townsend 1903, the railroad got at all that it was subject to implied conditioner revertor if they stopped using it for railroad purpose. But they did get fee-simple absolute to the center of the earth, is how it was construed at that time. So that shed light on the fact that Section 4 reflects that only an easement was granted, because you would not need to have a subject to language at all if you were just patting the adjacent lands. It is also well established that the Department of Tears, interpretation of public land laws such as 1875 Act, is entitled to great deference. This is because public land laws provide for the acquisition of title, which much must be secured. And beginning in 1888 and continuing through today, the Department of Interior still construes 1875 Act as easements, and they can still constru 1875 Act rights ways different from pre-1871. I don't know if Stan Houghbett can be. And yet the government can argue contrary to what the government says. I mean, is that what you are telling us? I'm saying. The Interior says one thing, and the Justice Department here says something else. I mean, you have a President who reconciles these two things, and he must agree with one of the other. Well, I think under this Court's precedent, you defer to the agency in charge of ministering 1875 Act, and that is the Department of Interior. And the Department of Interior has consistently interpreted these rights away as easements, and that interpretation is entitled to substantial deference. I'm sure the government will have an explanation of why we shouldn't. If it pleases the Court to like to reserve the remainder of my time for rebuttal. Thank you, counsel. Mr. Yang? Mr. Chief Justice, and may have pleased the Court. The statute is legislative history, the surrounding statutory context, which includes Section 912 as well as the 1906 and 1909 Act. And this Court's decisions construing the 1875 Act, including Section 4, which predated great Northern, show that the United States retains the reversionary interest in the surface of the land of right of ways granted to railroads. Mr. Yang, I have to say I think the government gets a prize for understatement with its brief in this case. You have a sentence in your brief that says, we acknowledge that there is language in this Court's opinion in great Northern. And in the government's brief in that case, that sent lens some support to petitioner's contrary argument

. Here are the subject headings of the government's brief in great Northern. The right of way granted by the Act of March 3, 1875, is in the nature of an easement. The language of the 1875 Act shows that only an easement was granted. The legislative background in history of the 1875 Act showed that the grant was of an easement rather than a fee, subsequent administrative and congressional construction confirmed that only an easement was granted. I'm the first sentence of the summary of the argument. There's also other portions of the brief. I would refer the Court, for instance, to footnote 4, where the Court, the government said there would be a separate question raised about whether a patent holder, subsequently who obtains the patent after the grant of right of way, would take this government interest. And the Court, the government said, in fact, that would raise different questions. The Court recognized that on pages, the last two pages of its opinion, it specifically limited its judgment to situations where the government retained interest in the entire surrounding parcel, and in fact modified the judgment below which enjoined the railroad from oil drilling simply to apply to that. Not only that, the Court was writing on the Court. The government didn't cite, for instance. You think the Court was saying it will be an easement when that suits the government, but it will be something else when that suits the government. No, I think what the Court was saying is that an easement or it's not an easement. You really think the opinion meant to reserve the question whether it was an easement? I do with respect to the issue that we have here. The question before the Court was whether the right of way, which is a statutory term, Congress could have used easement, it could have used fee, it did not, it used a special statutory term which is accumulated meaning over time in the particularly railroad context. In that context, the Court was deciding whether it was in the nature of an easement, which is our subject heading said, it's in the nature of an easement, but that's visa V, the United States. I have, Yalva, I have got the point. With respect to the mineral lands, and in fact the shift that Justice Katie and you were talking about is a shift about subsidies. It was a shift of subsidy away from these lavish land grants, and when Congress was stopping that lavish grant to railroads, it made no sense to construe the act with respect to the mineral rights, which the Court said were mineral riches. Why would Congress do that when it was cutting back on the street? Well, all of that may be, but the term easement is a well-known term with an established meaning. And you're saying that you said it was an easement, the Court said it was an easement, you persuaded the Court to say it was an easement. And now you're saying this is some kind of property right that has no name. Well, it's obviously unknown to the law. It's a right of way. And in fact, the government's brief also said that with respect, and I'm quoting from page 9, with respect to the surface under any of the theories, even under the easement theory, which is, I don't believe, is a true common law easement, the railroad's control of the surface was complete. And then we went on further, and this is on page 36 and 37, it said it was a fact that the right of way has some of the attributes of a fee, and those included exclusive and perpetual occupation, and the remedies

. And so, again, if we were to rewrite our brief, we would certainly do so much more carefully now. But I think that the way that you read the brief is the way that you read opinions, which is in context in which it was decided, particularly because footnote 4, and this Court's opinion responding to footnote 4, made clear that they were only addressing mineral rights where the United States held the surrounding parcel. And that's particularly true, because this Court had already construed Section 4 of 1875 Act before Great New Yorker and Stalker and in Stinky. And in Stalker, the Court held that the subject 2, this is on page 154, a patent was subject to the railroad rights acquired by approval, that's the approval in Section 4, and the subject to language in Section 4. Upon approval, the grounds so selected were subject, were segregated from the public lands, and the required interiors would draw the land granted from the market. And then the Court goes on, and this is on page 154 again, the later patent, the patent issued to a settler, even though the local land office forgot to or omitted to mark the right of way on the landplats. The subsequent patent was inoperative to pass title to those later patent holders. And then in Stinky, this is 1922, the Court followed Stalker and said the approved map under Section 4 is the equivalent of a patent. And then they go on to say citing Stalker that the later patent was inoperative to pass title. And I think it's important, in both of those cases, the Court sided to interiors regulations in Stalker. The Court quoted at length the regulations from 1888, which although the Court suggested that in Great Northern those were the first regulations they actually weren't, there were prior regulations in 1878, which discussed nothing about the nature of the fee, and this unfortunately are hard to find. They are in Senate Executive Document 3045 Congress, Third Session 1879. So, but the regs that the petitioners now rely on were specifically referenced by the Court, including the regs that say the disposition of the land surrounding the right of way is subject to the right of way. Mr. Yang, the petitioners say that there are thousands or even tens of thousands of people in their position. Do you dispute them? We don't have good numbers, actually, on them. What are the numbers? Look, this is what I'm thinking. This is property law. It's not just a question of trying to work out what the case could or couldn't have stood for, but by trying to remember my property class. It vaguely was, which was a great class, A. James Casner, real expert. And he, I think, said that when you convey subject of divestment, the fee, the something called season under the common law went to the recipient of the conveyance. But if you convey an easement, season did not pass. So, in holding that it is an easement, you're holding there was no season. And therefore, it couldn't be a divestiture. Now, whether that's true or not, or I've misremembered it, I'd go back to Justice Scalia's question

. Is there a single example since the Doomsday book, since Daedonus, since the Braken on little to whatever it was? I mean, in the history of the common law, up to the present, where a court has interpreted an ambiguous phrase, which doesn't say, to grant an easement for one purpose, but not for the other. There may be some, but I didn't notice any cited in the government's brief. I'm not sure that there would be any common law cases. No, I said in any way, any case at all. In this context, what is the case? What is the case? I'd like to read. That's the pre-1871 statutes. The court would sometimes have had a different view. They didn't say it was an easement. I did read. You did? They sometimes refer to them as easements. Which case? I don't have it in front of me. I know that they're going to say, oh, where is it roughly in your brief? We didn't refer to those cases. All right. Well, we might have cited the cases in our brief. We didn't refer to that part. I'm not surprised, but you think there are some. I'll get my log. There are some, but the point was they were trying to discuss the nature of a statutory right of way. Congress did not use the term easement, did not use the term fee. And so the court has been using common law terms which don't fit perfectly to describe certain cases. Can you imagine or explain to me why a property lawyer worth his soul since 70 years ago, more, that 1942 wouldn't have read that case, and advised his client who was buying the land if the railroad abandons it. It's yours. There are, where is some evidence? There are at least four reasons. There are not reasons. I want to know if there's any authority and then you give the reason. There's the statutory and case law authority. I would start with stock or in Steinke, which specifically is say that when you have approved the map, it's equivalent to a patent. And then therefore any partial subject is, can be subject to the patent or the right of way, which means you don't get any interest, at least in the surface of the right of way. So those cases have never been overruled. One, two, Congress in 1906, and this isn't significant. This is a page, section 940, page 6A and 7A of our brief. Congress said that each and every grant of right of way under this 1875 act, each and every one. Shall be declared for if they did it, they hadn't been constructed. And this is important. The United States resumes the full title to the lands covered thereby, free and discharged from such eachment. They give compensation to the people to whom they pronounce that. No. I can't change the meaning of the 1875 act. But it reflects Congress's understanding of what the 1870 act was. It reflects a later Congress's understanding of what an earlier Congress did. We don't interpret statutes on the basis of what later Congress's think they meant. This Court did in Great Northern. In fact, this Court. We've done it. Okay. That's possible. But what we're talking about is Great Northern, and in fact, Great Northern quotes this language of section 940. The very next section goes on to say that the government's interests shall endure to the benefit of the land conveyed by the United States previously, which was subject to the right of way. So that section itself shows that starting in 1906, and that's both 1906 and 1909, Congress understood that the government had a reversionary interest. Mr. Yang, can I take you back to my question? Sure. Thousands, tens of thousands

. I would start with stock or in Steinke, which specifically is say that when you have approved the map, it's equivalent to a patent. And then therefore any partial subject is, can be subject to the patent or the right of way, which means you don't get any interest, at least in the surface of the right of way. So those cases have never been overruled. One, two, Congress in 1906, and this isn't significant. This is a page, section 940, page 6A and 7A of our brief. Congress said that each and every grant of right of way under this 1875 act, each and every one. Shall be declared for if they did it, they hadn't been constructed. And this is important. The United States resumes the full title to the lands covered thereby, free and discharged from such eachment. They give compensation to the people to whom they pronounce that. No. I can't change the meaning of the 1875 act. But it reflects Congress's understanding of what the 1870 act was. It reflects a later Congress's understanding of what an earlier Congress did. We don't interpret statutes on the basis of what later Congress's think they meant. This Court did in Great Northern. In fact, this Court. We've done it. Okay. That's possible. But what we're talking about is Great Northern, and in fact, Great Northern quotes this language of section 940. The very next section goes on to say that the government's interests shall endure to the benefit of the land conveyed by the United States previously, which was subject to the right of way. So that section itself shows that starting in 1906, and that's both 1906 and 1909, Congress understood that the government had a reversionary interest. Mr. Yang, can I take you back to my question? Sure. Thousands, tens of thousands. How many people are involved here? How many acres of land? Again, we don't know because the way that these things are disposed of, there has not been a centralized way of tracking it. It could be a significant amount because the 1875 act rights of ways were at least in number the most numerous. It's hard to know about mileage because the specific land grants were often quite long, but in terms, there were at least a certain significant number of 1875 act rights of ways. And so going back to Justice Breyer's question about why a good lawyer would not have great pause about saying that you got the surface interest, you have Stocker and Steinty, you have the section 940, which was enacted in 1906 and 1909, you have section 912, which was that whenever there is a forfeiture, the United States interest reverts to first for roads and then to humanist opalities, and if there was anything left, it would go to a landowner. That, you know, was unquestioned. It appears until, at least with the surface interest, until the mid-1980s, for 60 years, municipalities and roads were introduced. I see that it's true, and I certainly think bicycle pals are a good idea. But the problem that I see here is just what Justice Kagan is bringing up. That is, as I read this, I think there might be, you know, millions of acres in the last 70 years that have been conveyed. For all I know, there is some right of way that goes to people's houses, you know, and all of a sudden they are going to be living in their house and suddenly a bicycle will run through it, which isn't so bad. But I'm concerned about that, and your answer makes me more concerned. Because you haven't suggested anything that makes me think there aren't millions and millions of acres involved. Now, what are you going to say that the disabuse me of that? Well, I think the question is that between 1922 and the mid-1980s, this issue does not appear to have risen. It's a risen only with respect to the military. Exactly. Because the lawyer would think when he reads the case of Great Norther, and he would think it's an easement. And then when the city takes the road and we're in the municipality, excuse me, the municipality takes the right of way, no one complained for 60 years. I mean, this is the background of the law. This is going to be a significant issue. How much is that? How much roughly is that? How often has it turned out that there was a conveyance after 1942, there was a conveyance to an abandoned right of way by the United States to land that had previously been granted to a private owner? The amicus brief of how often? It doesn't have, again, we don't have good numbers on how often? I know you don't have good numbers, but can you give me a rough estimate? I think a significant amount of time, because the, if you look at the amicus brief of the National Council on State Legislatures, they've seen this. I'll say it's 10 times as much reliance on the one side than the other side. Is that totally wrong? You're on right. I can't speculate on numbers. I just don't have the, it would be not appropriate for me for the United States to speculate on numbers. What do you say? Mr. Lesson told us, he said, to this very day, the Department of Interior has taken the position for these railroad railways or easements

. How many people are involved here? How many acres of land? Again, we don't know because the way that these things are disposed of, there has not been a centralized way of tracking it. It could be a significant amount because the 1875 act rights of ways were at least in number the most numerous. It's hard to know about mileage because the specific land grants were often quite long, but in terms, there were at least a certain significant number of 1875 act rights of ways. And so going back to Justice Breyer's question about why a good lawyer would not have great pause about saying that you got the surface interest, you have Stocker and Steinty, you have the section 940, which was enacted in 1906 and 1909, you have section 912, which was that whenever there is a forfeiture, the United States interest reverts to first for roads and then to humanist opalities, and if there was anything left, it would go to a landowner. That, you know, was unquestioned. It appears until, at least with the surface interest, until the mid-1980s, for 60 years, municipalities and roads were introduced. I see that it's true, and I certainly think bicycle pals are a good idea. But the problem that I see here is just what Justice Kagan is bringing up. That is, as I read this, I think there might be, you know, millions of acres in the last 70 years that have been conveyed. For all I know, there is some right of way that goes to people's houses, you know, and all of a sudden they are going to be living in their house and suddenly a bicycle will run through it, which isn't so bad. But I'm concerned about that, and your answer makes me more concerned. Because you haven't suggested anything that makes me think there aren't millions and millions of acres involved. Now, what are you going to say that the disabuse me of that? Well, I think the question is that between 1922 and the mid-1980s, this issue does not appear to have risen. It's a risen only with respect to the military. Exactly. Because the lawyer would think when he reads the case of Great Norther, and he would think it's an easement. And then when the city takes the road and we're in the municipality, excuse me, the municipality takes the right of way, no one complained for 60 years. I mean, this is the background of the law. This is going to be a significant issue. How much is that? How much roughly is that? How often has it turned out that there was a conveyance after 1942, there was a conveyance to an abandoned right of way by the United States to land that had previously been granted to a private owner? The amicus brief of how often? It doesn't have, again, we don't have good numbers on how often? I know you don't have good numbers, but can you give me a rough estimate? I think a significant amount of time, because the, if you look at the amicus brief of the National Council on State Legislatures, they've seen this. I'll say it's 10 times as much reliance on the one side than the other side. Is that totally wrong? You're on right. I can't speculate on numbers. I just don't have the, it would be not appropriate for me for the United States to speculate on numbers. What do you say? Mr. Lesson told us, he said, to this very day, the Department of Interior has taken the position for these railroad railways or easements. That's not correct, because it needs to be qualified. After Great Northern, Interior has concluded in Amara de Hess, which we cite in our brief, that the subsurface interests would go to the patentee. But with respect to the surface interests, that has not been the case. In fact, until 1984 is the first case that I have seen in the, in a case that was the counterpart to the Oregon short line case that we cite that led to this decision here, there was, it just wasn't disputed. Why is interest? Why then did no one from the Department of the Interior join on, join your brief? They agree with our brief. We don't always have a choice. Do they? No, that we have been in close consultation with the Department of Interior and they have signed off on this brief. The agency that's at issue here is actually agriculture, because agriculture is the forest service which has lands. I think both of them want more federal lands, that's surprising. I think that's maybe a little agriculture. I think the government is giving the Court its view of the law here. We're interpreting it. Multiple agencies have been consulted and we've been trying to come to grips with the Court's conflicting, you know, language. If you take language in the abstract and you divorce it from the context of the case, the Court's decisions are conflicting, but when you look at the context of the case, you look at Great Northern as with respect to saying that the subsurface interest, the mineral interest, are like an easement with respect to the United States, these have either railroad, but then you have stalker and stinky saying that when under Section 4 of the Act, it's an authoritative construction of Section 4 of the Act, when you prove a map of a railroad under Section 4, it is tantamount to a patent and thereafter a subsequent patent does not confer an interest on the patentee, those cases are reconciled, we think, by acknowledging that stalker and stinky control, at least with respect to the surface interests, and then with respect to the subsurface interest, Great Northern clearly says that at least vis-a-vis the United States and the railroad, where there's no third parties involved, that is deemed to be like an easement that would not give a subsurface interest. And there's real important reasons to distinguish between the subsurface and the surface with respect to rights of ways. Surface is what's all, for the right of ways, what's important, it's critical. You need to have a artery that connects various parcels of land that's put true back when 1875 was enacted, and it's true now with respect to highways and other uses that the government might put its land to. Sotomayor-Butt-The patentee or Mr. Yann, which was what, in the mid-1970s, did not reserve anything. The government just made an unquivocal grant to the grant family. And that was true both in stalker and in stinky with respect to the subsequent patentee. Well, I'm just suggesting that after Great Northern, and then you're given this patent, which is unequivocal and does not reserve anything, why anybody would think that they have the patent got in the whole ball of wax is a mystery. Well, I think you would have to, if you had a good lawyer, the good lawyer would say, look, we've got, there's uncertainty here. You've got stalker and stinky with, says you get no interest. You have Great Northern, which would doesn't address interests that pass to third parties. It only addresses the interest that the railroad has, and it says there's no mineral rights

. That's not correct, because it needs to be qualified. After Great Northern, Interior has concluded in Amara de Hess, which we cite in our brief, that the subsurface interests would go to the patentee. But with respect to the surface interests, that has not been the case. In fact, until 1984 is the first case that I have seen in the, in a case that was the counterpart to the Oregon short line case that we cite that led to this decision here, there was, it just wasn't disputed. Why is interest? Why then did no one from the Department of the Interior join on, join your brief? They agree with our brief. We don't always have a choice. Do they? No, that we have been in close consultation with the Department of Interior and they have signed off on this brief. The agency that's at issue here is actually agriculture, because agriculture is the forest service which has lands. I think both of them want more federal lands, that's surprising. I think that's maybe a little agriculture. I think the government is giving the Court its view of the law here. We're interpreting it. Multiple agencies have been consulted and we've been trying to come to grips with the Court's conflicting, you know, language. If you take language in the abstract and you divorce it from the context of the case, the Court's decisions are conflicting, but when you look at the context of the case, you look at Great Northern as with respect to saying that the subsurface interest, the mineral interest, are like an easement with respect to the United States, these have either railroad, but then you have stalker and stinky saying that when under Section 4 of the Act, it's an authoritative construction of Section 4 of the Act, when you prove a map of a railroad under Section 4, it is tantamount to a patent and thereafter a subsequent patent does not confer an interest on the patentee, those cases are reconciled, we think, by acknowledging that stalker and stinky control, at least with respect to the surface interests, and then with respect to the subsurface interest, Great Northern clearly says that at least vis-a-vis the United States and the railroad, where there's no third parties involved, that is deemed to be like an easement that would not give a subsurface interest. And there's real important reasons to distinguish between the subsurface and the surface with respect to rights of ways. Surface is what's all, for the right of ways, what's important, it's critical. You need to have a artery that connects various parcels of land that's put true back when 1875 was enacted, and it's true now with respect to highways and other uses that the government might put its land to. Sotomayor-Butt-The patentee or Mr. Yann, which was what, in the mid-1970s, did not reserve anything. The government just made an unquivocal grant to the grant family. And that was true both in stalker and in stinky with respect to the subsequent patentee. Well, I'm just suggesting that after Great Northern, and then you're given this patent, which is unequivocal and does not reserve anything, why anybody would think that they have the patent got in the whole ball of wax is a mystery. Well, I think you would have to, if you had a good lawyer, the good lawyer would say, look, we've got, there's uncertainty here. You've got stalker and stinky with, says you get no interest. You have Great Northern, which would doesn't address interests that pass to third parties. It only addresses the interest that the railroad has, and it says there's no mineral rights. And then you have Congress in 1906, 1909, 1922, and more recently in 1988, doubling down, saying, you know, the United States interests goes to roads first. It seems to me a fair reading of the history here, Mr. Yang, is that it really didn't occur to the government until very recently that these rights of way had value as anything other than railroad tracks. And indeed, that the government was anxiously trying to give these things away because it thought these spaghetti strips of land, it's of no use to the government, he or take them, get them off our hands. And, you know, having done that for many, many, many decades, the government faces a problem when it turns around and says, you know what, we forgot, there were bike paths. I don't think that's quite accurate. At least since 1922, the government has disposed of a Congress, I should say, has directed the government to dispose of its reverse and very interest first to roads. And that remains true today. And then also, from 1922 until 1988, it was supposed to go to any municipality, any land with any municipality goes to municipality, and then third, it would go to any landowner of the surrounding parcel that was obtained the interest subject to the right of way. Now, of course, you know, Congress is free to choose to change its decision about how to dispose of U.S. government interest, any government property, there is no vested interest in that. And I think what we're trying to say in our brief is that Petitioner asks the Court essentially to nullify a significant significant enactment by Congress. It would nullify. But, look, when you talk about, I mean, I went and read, when I read, I thought your brief was very persuasive, but then I read Great Northern, and I thought they have, they were really quoting it correctly. Here's what they said about the cases that you refer to, like Springer. The conclusion that the railroad was the owner of a limited fee, which is the conclusion of those earlier cases, was based on cases arising under the 1871 Act, not the 1875 Act, and the change of policy in 1875 was not brought to the Court's attention. Well, say, and then they say that conclusion is inconsistent with the language of the 1875 Act. It's history, and it's early administrative interpretation. We therefore do not regard this earlier case as controlling. That was Townsend, which was dictum. We told the Court that Townsend was dictumming Townsend. The dispute was by a railroad who got a decree from a State Court saying it had the right of way. I thought they say in the stringent cases, that the same as Townsend. Oh, I'm sorry, stringent. Yeah

. And then you have Congress in 1906, 1909, 1922, and more recently in 1988, doubling down, saying, you know, the United States interests goes to roads first. It seems to me a fair reading of the history here, Mr. Yang, is that it really didn't occur to the government until very recently that these rights of way had value as anything other than railroad tracks. And indeed, that the government was anxiously trying to give these things away because it thought these spaghetti strips of land, it's of no use to the government, he or take them, get them off our hands. And, you know, having done that for many, many, many decades, the government faces a problem when it turns around and says, you know what, we forgot, there were bike paths. I don't think that's quite accurate. At least since 1922, the government has disposed of a Congress, I should say, has directed the government to dispose of its reverse and very interest first to roads. And that remains true today. And then also, from 1922 until 1988, it was supposed to go to any municipality, any land with any municipality goes to municipality, and then third, it would go to any landowner of the surrounding parcel that was obtained the interest subject to the right of way. Now, of course, you know, Congress is free to choose to change its decision about how to dispose of U.S. government interest, any government property, there is no vested interest in that. And I think what we're trying to say in our brief is that Petitioner asks the Court essentially to nullify a significant significant enactment by Congress. It would nullify. But, look, when you talk about, I mean, I went and read, when I read, I thought your brief was very persuasive, but then I read Great Northern, and I thought they have, they were really quoting it correctly. Here's what they said about the cases that you refer to, like Springer. The conclusion that the railroad was the owner of a limited fee, which is the conclusion of those earlier cases, was based on cases arising under the 1871 Act, not the 1875 Act, and the change of policy in 1875 was not brought to the Court's attention. Well, say, and then they say that conclusion is inconsistent with the language of the 1875 Act. It's history, and it's early administrative interpretation. We therefore do not regard this earlier case as controlling. That was Townsend, which was dictum. We told the Court that Townsend was dictumming Townsend. The dispute was by a railroad who got a decree from a State Court saying it had the right of way. I thought they say in the stringent cases, that the same as Townsend. Oh, I'm sorry, stringent. Yeah. Well, that's the one you were, that's the one. No, no, we're not relying on Townsend. We're relying on Stalker and Steinty, which are 1875 Act holdings. It's this Court, construing the very statute that we're talking about, Section 4, which is the very section that the petitioners. Now, it would be kind of remarkable to read language in Great Northern, which addressed a different question in which the government specifically reserved the question of what interest would transfer to a patent. The Court specifically limited its decision, so it wouldn't reach that issue. And then it's subsolensial overruled to decisions by this Court on the very statute decided 30 years earlier when the Court was closer to the 1875 Act. That would be a pretty remarkable thing, I think, in what we're saying is that no Stalker and Steinty remain good law, even if you characterize the right of way as having attributes of an easement, because it's clear it can't be a common law. I don't think that even petitioner may be able to dispute this, but at a common law easement, as this Court has explained, would not give as traditionally framed exclusive and perpetual occupation to the railroad. It would not give the remedy of the fee. All those are very practical real rights that would have to be conferred, that would be greater than a mere common law easement. And that's true back in 1871, and it's true in 1875, and we said it was true in our brief to this Court. We said, as an easement, the fact that it has some of the attributes of a fee, including exclusive and perpetual occupation and the remedies of a fee and not an easement, doesn't take it out of the box of what we're talking about in that case. And so again, I think you need to read in Contas. I agree that if you just take Greek northern and look at it without peeling back the hood a little bit, there's language that, you know, would lead to this surprise. That's basically my problem, and I guess you just don't have any specific things of what property lawyers were saying, but those two cases are from the era of Stringham. And at that point, apparently the Court thought it was a limited fee. One was before you get it. Yeah, they were all, but were it the way it was any of them? After Great Northern? No, not after Great Northern. So then in Great Northern, it comes along. But Justice Barrett, I think it's a mistake to rely on these labels of limited fee and easement too strongly. That's what this Court's basically said in Union Pacific in 1957. In Union Pacific, the Court said, look, these pre-1871 cases used the term limited fee, but really we're not going to see deemed that to be controlling with respect to the mineral rights. And the Court is doing exactly what we're saying should be done here, which is you understand the right of way in the context of the statutory text and the context of the environment, surrounding statutory environment in the context of this Court's decisions. And it's not a binary, black or white choice between common law terms. Congress didn't use those common law terms

. Well, that's the one you were, that's the one. No, no, we're not relying on Townsend. We're relying on Stalker and Steinty, which are 1875 Act holdings. It's this Court, construing the very statute that we're talking about, Section 4, which is the very section that the petitioners. Now, it would be kind of remarkable to read language in Great Northern, which addressed a different question in which the government specifically reserved the question of what interest would transfer to a patent. The Court specifically limited its decision, so it wouldn't reach that issue. And then it's subsolensial overruled to decisions by this Court on the very statute decided 30 years earlier when the Court was closer to the 1875 Act. That would be a pretty remarkable thing, I think, in what we're saying is that no Stalker and Steinty remain good law, even if you characterize the right of way as having attributes of an easement, because it's clear it can't be a common law. I don't think that even petitioner may be able to dispute this, but at a common law easement, as this Court has explained, would not give as traditionally framed exclusive and perpetual occupation to the railroad. It would not give the remedy of the fee. All those are very practical real rights that would have to be conferred, that would be greater than a mere common law easement. And that's true back in 1871, and it's true in 1875, and we said it was true in our brief to this Court. We said, as an easement, the fact that it has some of the attributes of a fee, including exclusive and perpetual occupation and the remedies of a fee and not an easement, doesn't take it out of the box of what we're talking about in that case. And so again, I think you need to read in Contas. I agree that if you just take Greek northern and look at it without peeling back the hood a little bit, there's language that, you know, would lead to this surprise. That's basically my problem, and I guess you just don't have any specific things of what property lawyers were saying, but those two cases are from the era of Stringham. And at that point, apparently the Court thought it was a limited fee. One was before you get it. Yeah, they were all, but were it the way it was any of them? After Great Northern? No, not after Great Northern. So then in Great Northern, it comes along. But Justice Barrett, I think it's a mistake to rely on these labels of limited fee and easement too strongly. That's what this Court's basically said in Union Pacific in 1957. In Union Pacific, the Court said, look, these pre-1871 cases used the term limited fee, but really we're not going to see deemed that to be controlling with respect to the mineral rights. And the Court is doing exactly what we're saying should be done here, which is you understand the right of way in the context of the statutory text and the context of the environment, surrounding statutory environment in the context of this Court's decisions. And it's not a binary, black or white choice between common law terms. Congress didn't use those common law terms. Congress used the term right of way. It used the same text that it did in prior grants of rights of way. And all we're trying to say is that there are real important interests here. It's not practically feasible to ever reconstruct these arteries through the lands. And they were important when Congress granted them to develop the lands in 1875. And they remain important today as Congress is now repeatedly recognized in terms of granting public roads. So do we know how many miles of public roads and how many miles of bike trails have been either? On bike trails, this is not a rails to trails, act case. There are different issues there. On the rails to trails, act case, you know, it's, I don't have a mileage. But this is a trail that, in this case, the government used its property interest through the national forests as well as through this parcel for like a 22-mile trail. There are probably 1,000 miles of trail that are, that are, that would be affected. And importantly, there's a lot of interest going forward that would be affected when the law, again, the law of 19, 1922 was that the Congress would reserve the United States interest for roads and municipalities. And that was a significant- Are there highways that would be affected? I mean, if we rule for the brands, are there suddenly going to be highways that can't be- Well, it certainly- Well, it certainly- It certainly would call into question the legality of the land transfers. And I'm sure that could be something that could be litigated. There would be issue, I'm sure, defenses raised by the states and municipalities. But what the Court would be saying is that for, since 1922, and this policy continues now, that the highways that have been created under 1875 Act would be invalid- You think of anything I can do about this? Look, it's a case, in my mind, at least, where reliance interests on a previous case and the property law area are important. And yet, none of the briefs here really gives me a reasonably concrete idea of how much reliance there's been. And- And- On ease? So I'm somewhat in the dark. Yeah. It's difficult to know, because again, these are kind of ad hoc things. When there's an abandonment, there might be proceedings, but there's been- We've not been able to obtain centralized, reliable information on the total number. Because this goes back a pretty long way, we're talking about, again, starting in 1922. You know, this has been unchallenged until we got two district court decisions in the mid-80s, with respect to the surface. Now, on the subsurface, great northerin has continued to be applied by interior, and that's been treated differently. And I think it's important also to remember that the regulations, not only were they cited by this court in Stalker and Stinky, the court was clearly aware of the regulations. In 1931, the case called Otis Birch, where interior basically followed Stalker and recognized that you could not pass title

. Congress used the term right of way. It used the same text that it did in prior grants of rights of way. And all we're trying to say is that there are real important interests here. It's not practically feasible to ever reconstruct these arteries through the lands. And they were important when Congress granted them to develop the lands in 1875. And they remain important today as Congress is now repeatedly recognized in terms of granting public roads. So do we know how many miles of public roads and how many miles of bike trails have been either? On bike trails, this is not a rails to trails, act case. There are different issues there. On the rails to trails, act case, you know, it's, I don't have a mileage. But this is a trail that, in this case, the government used its property interest through the national forests as well as through this parcel for like a 22-mile trail. There are probably 1,000 miles of trail that are, that are, that would be affected. And importantly, there's a lot of interest going forward that would be affected when the law, again, the law of 19, 1922 was that the Congress would reserve the United States interest for roads and municipalities. And that was a significant- Are there highways that would be affected? I mean, if we rule for the brands, are there suddenly going to be highways that can't be- Well, it certainly- Well, it certainly- It certainly would call into question the legality of the land transfers. And I'm sure that could be something that could be litigated. There would be issue, I'm sure, defenses raised by the states and municipalities. But what the Court would be saying is that for, since 1922, and this policy continues now, that the highways that have been created under 1875 Act would be invalid- You think of anything I can do about this? Look, it's a case, in my mind, at least, where reliance interests on a previous case and the property law area are important. And yet, none of the briefs here really gives me a reasonably concrete idea of how much reliance there's been. And- And- On ease? So I'm somewhat in the dark. Yeah. It's difficult to know, because again, these are kind of ad hoc things. When there's an abandonment, there might be proceedings, but there's been- We've not been able to obtain centralized, reliable information on the total number. Because this goes back a pretty long way, we're talking about, again, starting in 1922. You know, this has been unchallenged until we got two district court decisions in the mid-80s, with respect to the surface. Now, on the subsurface, great northerin has continued to be applied by interior, and that's been treated differently. And I think it's important also to remember that the regulations, not only were they cited by this court in Stalker and Stinky, the court was clearly aware of the regulations. In 1931, the case called Otis Birch, where interior basically followed Stalker and recognized that you could not pass title. Now, that was a mineral act case, and the court also said that because you can't separate the estates, or there's no reason to separate the surface from the subsurface, the mineral couldn't be transferred either, that's been overtaken by events. Well, maybe it's important to recognize in 31, and when the regs were codified in the CFR in 38, which are the 1909 regs, which had never been changed, revisited on the nature of the interest, they simply just carried forward, even though interior recognized that there would be no interest given to patentees of the land after a right away is granted under Section 4 of the Act. Maybe the reason you don't have records on this, which strikes me as pretty unusual, that the government doesn't know what it owns, is that for decades you didn't think that you owned a reversionary interest. Well, for decades, we thought you owned a reversionary interest. Well, you don't need any records on where these things are. But Congress told everyone how to dispose of it. It went to streets, roads, highways, then to municipalities, and if then not municipalities, it would go to the landowner. So the United States, you know, disposed of its reversionary interest through statute. It wasn't until 1988 that the policy changed to prioritize highways, and then the U.S. is interest after that. So it's understandable why we haven't been intimately involved with all these forfeitures that have occurred over time. Congress directed how the United States interest should be disposed of. What would be the exposure of the United States if we could lose other taking claims now? There are taking claims that would, any 1875 Act case or right of way, which has been abandoned, which is then put to another use, whether it be a highway under the current section 912, or whether it reverts to the United States, or even if, for instance, it doesn't revert to the United States. Are there any statute of limitations with all of this to be subject to the APA or a claim for damages against the U.S.? I don't believe the APA would govern a claim of damages against the U.S. There are taking claims which proceed under the Tucker Act against the U.S. or the Little Tucker Act depending on the amount. It wouldn't be an APA issue. What about adverse possession, can't think of? Yeah, adverse possession is certainly an issue that might, might, would come up. I would think if there's been no objection to these spaghetti strips of land, I don't think condemnation would cost the government a lot for that matter. What, you know, what do you think? Well, spaghetti strip of land through the U.S

. Now, that was a mineral act case, and the court also said that because you can't separate the estates, or there's no reason to separate the surface from the subsurface, the mineral couldn't be transferred either, that's been overtaken by events. Well, maybe it's important to recognize in 31, and when the regs were codified in the CFR in 38, which are the 1909 regs, which had never been changed, revisited on the nature of the interest, they simply just carried forward, even though interior recognized that there would be no interest given to patentees of the land after a right away is granted under Section 4 of the Act. Maybe the reason you don't have records on this, which strikes me as pretty unusual, that the government doesn't know what it owns, is that for decades you didn't think that you owned a reversionary interest. Well, for decades, we thought you owned a reversionary interest. Well, you don't need any records on where these things are. But Congress told everyone how to dispose of it. It went to streets, roads, highways, then to municipalities, and if then not municipalities, it would go to the landowner. So the United States, you know, disposed of its reversionary interest through statute. It wasn't until 1988 that the policy changed to prioritize highways, and then the U.S. is interest after that. So it's understandable why we haven't been intimately involved with all these forfeitures that have occurred over time. Congress directed how the United States interest should be disposed of. What would be the exposure of the United States if we could lose other taking claims now? There are taking claims that would, any 1875 Act case or right of way, which has been abandoned, which is then put to another use, whether it be a highway under the current section 912, or whether it reverts to the United States, or even if, for instance, it doesn't revert to the United States. Are there any statute of limitations with all of this to be subject to the APA or a claim for damages against the U.S.? I don't believe the APA would govern a claim of damages against the U.S. There are taking claims which proceed under the Tucker Act against the U.S. or the Little Tucker Act depending on the amount. It wouldn't be an APA issue. What about adverse possession, can't think of? Yeah, adverse possession is certainly an issue that might, might, would come up. I would think if there's been no objection to these spaghetti strips of land, I don't think condemnation would cost the government a lot for that matter. What, you know, what do you think? Well, spaghetti strip of land through the U.S. We faced a very considerable amount of litigation in recent years. It doesn't interior, I mean, it doesn't thought that high-well, aren't there people in the government who keep track of where the highways are built? Well, for local roads, I mean, this is the idea that these rights of ways would go to states and localities, not federal highways, that's Section 912. But you should know how much land the United States owns. It's incredible that there's no record in the Interior Department or anywhere else of what land the United States owns. You claim you own these thousands of acres. And you say we've not kept track of it. We just know where it's going to go, but we don't know what we own. There are some records that you can get from archives with respect to specific things, but it's not centralized. We don't have a way of aggregating what has happened over the last 90 years. That's the difficulty that we have here. Thank you, Council. Thank you. Mr. Electric, have four minutes remaining? We do know how many acres are involved in this case, and the government is claiming ten of the 83 acres that had padded to Marvin Brandt's parents. As this Court has noted, Stereo-descices concerns are at the acne and cases involving property rights. With respect to Stacher and Stinky, those were pre-great-northern, those were limited fee cases. At most they stand for first in time, first in right. Stinky was written by Justice Van DeVaner, who also wrote Stringham, which great-northern overturned. That's why Stacher and Stinky fell out of use over the years. If Stacher and Stinky were so important, the government should have brought those cases to the Court's attention in great-northern, but it didn't. With respect to the 1931 land decision the government just brought up, I refer the Court to Solicitor's opinion. Yes, it would be the private parties that would have brought it up in great-northern, wouldn't it? And do you have any light to shed on the comparative amounts? I mean, they say that for all we know, there are billions of dollars worth of takings claims that will come up with where the highways run. And you're arguing, of course, any reasonable property lawyer would have relied on great-northern to think it was just conveying an easement. But I'm not a property lawyer. And so what actually happened matters in the amounts matter, at least to me, and do you have any light to shed? I don't have any light to shed on the actual mileage. We know it's thousands

. We faced a very considerable amount of litigation in recent years. It doesn't interior, I mean, it doesn't thought that high-well, aren't there people in the government who keep track of where the highways are built? Well, for local roads, I mean, this is the idea that these rights of ways would go to states and localities, not federal highways, that's Section 912. But you should know how much land the United States owns. It's incredible that there's no record in the Interior Department or anywhere else of what land the United States owns. You claim you own these thousands of acres. And you say we've not kept track of it. We just know where it's going to go, but we don't know what we own. There are some records that you can get from archives with respect to specific things, but it's not centralized. We don't have a way of aggregating what has happened over the last 90 years. That's the difficulty that we have here. Thank you, Council. Thank you. Mr. Electric, have four minutes remaining? We do know how many acres are involved in this case, and the government is claiming ten of the 83 acres that had padded to Marvin Brandt's parents. As this Court has noted, Stereo-descices concerns are at the acne and cases involving property rights. With respect to Stacher and Stinky, those were pre-great-northern, those were limited fee cases. At most they stand for first in time, first in right. Stinky was written by Justice Van DeVaner, who also wrote Stringham, which great-northern overturned. That's why Stacher and Stinky fell out of use over the years. If Stacher and Stinky were so important, the government should have brought those cases to the Court's attention in great-northern, but it didn't. With respect to the 1931 land decision the government just brought up, I refer the Court to Solicitor's opinion. Yes, it would be the private parties that would have brought it up in great-northern, wouldn't it? And do you have any light to shed on the comparative amounts? I mean, they say that for all we know, there are billions of dollars worth of takings claims that will come up with where the highways run. And you're arguing, of course, any reasonable property lawyer would have relied on great-northern to think it was just conveying an easement. But I'm not a property lawyer. And so what actually happened matters in the amounts matter, at least to me, and do you have any light to shed? I don't have any light to shed on the actual mileage. We know it's thousands. We know that this is- Out on your side. What about the possibility that millions of acres has been conveyed? And there are tens of thousands or hundreds of thousands of abandoned railroad that property lawyers thought went to the person who bought them and brought run through somebody's house. I mean, is that a figment of my imagination? No. And you won't say, no, it isn't. And therefore, I'm asking you, is there any empirical support anywhere for how property law is treated great-northern, how much was conveyed, et cetera? Anything you can say on that would be help. I have nothing to say about the quantity, but I know that when S.G. S7 circuit ruled in SC Johnson that the title insurance thought that was a landmark decision because it resolved a lot of problems with the title insurance industry. Each mile of the right of way takes up 24 acres. At one point there were 270,000. As this court noted in preso, there was 272,000 miles of roads at the peak in the early 1920s and about 130 of those have been abandoned by the time of the preso decision. I want to also address the forfeiture provision that they mentioned in great northern relied on Section 43, 940 to confirm its conclusion that the S.G. Indeed, these are easements because the 43 U.S.C. 940 calls them an easement. And as with respect to land that the government is still owned at the time of abandonment, they said that the government's land would be discharged of the easement. Is there any doctrine in property law that if a right of access is granted and it's to the exclusion of all other uses, it's, it looks for all purposes like absolute control that it ceases to be an easement and becomes a limited fee. And is there some magic that takes place in property law so that if there's a grant that conveys such total control that it is construed not to be an easement? I don't know, Vinnie. I've never seen it. You know, roads, highways are conveyed into the city. You even heard of the term limited fee until this case? I never heard of it. Well, I read it. A. James Casner didn't talk to me about a limited fee

. Well, I read these cases in law schools, so I was aware of that. Thank you. Thank you, counsel. The case is submitted