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Smart in your world | Arent Fox For Immediate Release

US Supreme Court Upholds Property Rights in Key Decision


March 11, 2014

Washington, DC — On March 10, 2014, the United States Supreme Court ruled in favor of the landowner in a pivotal Fifth Amendment property rights case that will allow thousands of people to maintain ownership of millions of acres of land across the country. By an 8-1 vote in Brandt v. United States, the Court preserved the certainty and predictability in land titles and upheld one of the fundamental policies of the country’s property law system.

Complex Litigation partner Thor Hearne filed an amicus brief in the case on behalf of the Cato Institute, the American Farm Bureau Federation, the American Land Title Association, the National Cattlemen’s Beef Association, and the Public Lands Council, organizations representing thousands of potentially-affected landowners. As part of Mr. Hearne’s work on the case, he appeared at the counsel table during oral argument and assisted the Brandt family’s attorney with Mountain States Legal Foundation, who argued the case. A link to Arent Fox’s brief can be found here.

The Court’s decision potentially affects millions of acres of land encumbered by railroad rights-of-way. “As we advocated, the Supreme Court upheld and protected the fundamental property rights of thousands of landowners across the country,” said Mr. Hearne.

The brief Arent Fox filed also expressed the views of four distinguished professors in the field of property law: James W. Ely, Jr., Richard A. Epstein, Donald Kochan, and Dale A. Whitman. Arent Fox lawyers who joined Mr. Hearne on the brief include associates Lindsay Brinton, Megan S. Largent, and attorney Stephen Davis.

In Brandt, the federal government attempted to take the Brandt family’s land without compensation. In 1908, as part of a broader effort to encourage the expansion of rail service across the county, the federal government granted a “right-of-way” to the Hahn’s Peak and Pacific Railway Company to build and operate a 66-mile railway. Later, the government sold the Brandts an 80-acre tract of land subject to the railroad’s easement. The government did not retain any interest in the land. Years later, the railroad abandoned the railroad easement. The Brandts now own the land unencumbered by any easement. But the federal government claimed that it retained an “implied” right in the land it sold the Brandt family decades ago.

The Court ruled in favor of the Brandts and held that when the railroad “abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated,” and “Brandt’s land became unburdened of the easement.”

Arent Fox is currently representing more than a thousand landowners in more than a dozen eminent domain cases against the federal government. Mr. Hearne has earned a national reputation for his work in complex federal and state litigation and appeals — especially in cases involving constitutional law and election issues. In addition, Mr. Hearne has written and lectured on Fifth Amendment takings at the Brigham-Kanner Annual Property Rights Conference and been on the faculty of the American Law Institute for its annual conference on eminent domain.

Arent Fox’s Complex Litigation group has been recognized by Chambers USA for its “streamlined” approach that delivers “quality” results. With more than 125 litigators, the practice boasts a deep bench and international reach while having extensive experience in high-stakes litigation before federal and state courts and regulatory agencies. The group is especially proficient at managing parallel litigation in multiple jurisdictions and represents clients in matters that include intellectual property, health care, life sciences, trade, automotive, insurance, and human rights abuses.



Nathan Carlile
Communications Manager
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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.



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