Estate of Glowdena B. Finnigan v. United States ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF GLOWDENA B. FINNIGAN, No. 19-35922
Plaintiff-Appellant,
D.C. No.
v. 9:18-cv-00109-
DLC-KLD
UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted October 28, 2020
Portland, Oregon
Filed June 21, 2021
Before: Susan P. Graber, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton;
Dissent by Judge Ikuta
2 ESTATE OF FINNIGAN V. UNITED STATES
SUMMARY*
Property Rights
The panel affirmed the district court’s grant of summary
judgment in favor of the United States in an action brought by
the Estate of Glowdena B. Finnigan seeking to quiet title to
real property that had been granted by the federal government
to the Northern Pacific Railroad Company, but was
abandoned many years ago.
After Northern Pacific physically abandoned the 20-mile
segment in 1958, several landowners along the right of way
sought a judicial decree of abandonment, and ultimately
gained title to their respective segments of the abandoned
railway. The Estate’s predecessor-in-interest did not seek a
judicial decree of abandonment at that time or for many years
thereafter.
At issue is the question whether the United States
maintained its reversionary interest over real property granted
over 150 years ago to a railroad for use as a right of way, or
whether that interest was later ceded to settlers who owned
adjoining property. Specifically, the parties dispute whether
the current ownership of the abandoned right of way was
controlled by the Abandoned Railroad Right of Way Act,
codified at 43 U.S.C. § 912 and enacted in 1922, under which
title transferred to the adjacent landowners, or by the Rails-
to-Trails Act, codified at 6 U.S.C. § 1248(c) and enacted in
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ESTATE OF FINNIGAN V. UNITED STATES 3
1988, under which the United States retained its reversionary
interest in the land.
Reviewing the history, the plain text of the statutes, and
court precedent, the panel concluded that 16 U.S.C.
§ 1248(c), applied to this parcel and that the United States
retained its reversionary interest. Specifically, first, the panel
held that when it comes to transferring rights of way to
neighboring landowners, abandonment requires both physical
abandonment and a judicial decree of abandonment. Second,
the panel rejected the Estate’s argument that the judicial-
decree requirement was met when another parcel that was
also within the 20-mile segment of track obtained a judicial
decree of abandonment, because that decree did not cover the
parcel that the Estate sought to claim in this action. Third,
the panel held that § 1248(c) applied, and the right of way at
issue reverted to the United States, save for the land used to
establish a county road that Sanders County established
within the railroad right of way that traversed the Finnigan
property in the 1970s.
Judge Ikuta dissented. She would hold that
“abandonment” meant physical abandonment, and Northern
Pacific physically abandoned its right of way traversing the
property at issue in 1958. Because the abandonment occurred
before October 4, 1988, see 16 U.S.C. § 1248(c), the Finnigan
Estate was entitled to the property upon a judicial decree of
abandonment.
4 ESTATE OF FINNIGAN V. UNITED STATES
COUNSEL
Timothy M. Bechtold (argued), Bechtold Law Firm PLLC,
Missoula, Montana, for Plaintiff-Appellant.
Mark Steger Smith (argued), Assistant United States
Attorney, United States Attorney’s Office, Billings, Montana,
for Defendant-Appellee.
OPINION
CLIFTON, Circuit Judge:
This case presents the question of whether the United
States maintains its reversionary interest over real property
granted over 150 years ago to a railroad for use as a right of
way, or whether that interest was later ceded to settlers who
owned adjoining property. It is “one of those rare cases
evoking episodes in this country’s history” that bear
repeating, lest they be “remembered as dry facts and not as
adventure.” Leo Sheep Co. v. United States, 440 U.S. 668,
669 (1979).
The Estate of Glowdena B. Finnigan (“Estate”) seeks to
quiet title to real property that had been granted by the federal
government to the Northern Pacific Railroad Company
(“Northern Pacific”), but was abandoned many years ago.
The right of way traverses land unquestionably owned by the
Estate. As will be described in greater detail below, over time
Congress changed its policy on how to treat abandoned
railroads. The central dispute between the parties is whether
the current ownership of the abandoned right of way is
controlled by 43 U.S.C. § 912, enacted in 1922, under which
ESTATE OF FINNIGAN V. UNITED STATES 5
title transferred to the adjacent landowners, or by 16 U.S.C.
§ 1248(c), enacted in 1988, under which the United States
retained its reversionary interest in the land. Reviewing the
history, the plain text of the statutes, and our precedents, we
conclude that the 1988 statute, § 1248(c), applies to this
parcel and that the United States retained its reversionary
interest. We thus affirm the district court’s grant of summary
judgment in favor of the United States.
I. Background
In the early 19th century, the United States acquired the
territory we now describe as the American West. The
California Gold Rush, prompted by discovery of gold at
Sutter’s Mill in 1848, heightened interest in transcontinental
railroads. Construction of those railroads would be expensive
and risky, though. After years of “fruitless exhortation,” it
was evident that “private investors would not move without
tangible governmental inducement.” Leo Sheep, 440 U.S.
at 671.
Beginning in 1850, Congress enacted statutes that
provided grants of public lands to private railroad companies
to subsidize the construction of long stretches of railroads.
See Avista Corp. Inc. v. Wolfe, 549 F.3d 1239, 1242 (9th Cir.
2008). In 1860, then-presidential candidate Abraham Lincoln
proclaimed that “a railroad to the Pacific Ocean [was]
imperatively demanded by the interests of the whole country
[and] that the Federal Government ought to render immediate
and efficient aid in its construction.” J. ELY, RAILROADS AND
AMERICAN LAW 51 (2001). The Civil War accelerated efforts
to develop a network of railroads to facilitate the
transportation of troops and supplies. See Marvin M. Brandt
Revocable Tr. v. United States, 572 U.S. 93, 96 (2014).
6 ESTATE OF FINNIGAN V. UNITED STATES
In 1864, Congress passed the Northern Pacific Railroad
Company Land Grant Act, which gave Northern Pacific a
right of way through public lands to construct a railroad and
telegraph line from the Great Lakes to the Pacific Coast,
specifically from Lake Superior in Minnesota to Puget Sound
in Washington. Act of July 2, 1864, 13 Stat. 365. The grant
included two hundred feet on either side of the railway for
“station buildings, workshops, depots, machine shops,
switches, side tracks, turn-tables, and water stations[.]”
13 Stat. at 367. The Act also envisioned significant grants of
additional public lands to Northern Pacific, which the
company could sell to subsidize the construction of the
railroad. See id. In 1883, Northern Pacific completed the
railroad and celebrated with a “golden spike” ceremony near
Gold Creek, Montana, a place now listed on the National
Register of Historic Places. By the time of completion,
Northern Pacific had claimed forty-five million acres of land
grants, which included 23 percent of present-day North
Dakota and 15 percent of Montana. P. GATES, HISTORY OF
PUBLIC LAND LAW DEVELOPMENT 372–75 (1968) (“PUBLIC
LAND”).1
The right of way at issue in this case is part of an
abandoned 20-mile segment of railroad along the south side
of the Clark Fork River outside of Noxon, Montana (the “20-
mile segment”). Part of that segment runs through the
Finnigan property, which itself is entirely within the
boundaries of the Kanisku National Forest. The railroad was
in use until the 1950s, when Northern Pacific rerouted this
1
These massive land grants were some of the last of their kind. In
subsequent years, grants of public land were considered “lavish” and
thought to be ripe for abuse and corruption. See Avista, 549 F.3d at 1242(discussing the Credit Mobilier scandal).
ESTATE OF FINNIGAN V. UNITED STATES 7
stretch of tracks from the south side to the north side of the
river in anticipation of the construction of two new
hydroelectric dams, the Noxon Rapids Dam and the Cabinet
Gorge Dam, which would flood sections of the south side
tracks. See Avista, 549 F.3d at 1243–44.2
The Supreme Court considered the legal nature of the
right of way granted to Northern Pacific in Northern Pacific
Railway Co. v. Townsend, 190 U.S. 267 (1903). It held that
Northern Pacific was granted a “limited fee, made on an
implied condition of reverter in the event that the company
ceased to use or retain the land for the purpose for which it
was granted.” Id. at 271. Upon abandonment of the land for
railroad use, the right of way would revert to the United
States. Id.After the 1864 grant to Northern Pacific, Congress
changed its approach. Until 1871, federal grants generally
took the form of “rights of way through the public domain
accompanied by outright grants of land[,]” often convened in
“checkerboard blocks.” Brandt, 572 U.S. at 96–97 (citing
PUBLIC LAND 362–68). The grants gave railroad companies
a limited fee property interest, with the United States
retaining a right of reverter if the lands were abandoned. That
was the regime that applied to the property at issue in this
case. See N. Pac. Ry. Co., 190 U.S. at 271; Rio Grande W. Ry.
Co. v. Stringham, 239 U.S. 44, 47 (1915).
After 1871, congressional grants of rights of way were
limited to easements. See, e.g., Great N. Ry. Co. v. United
2
The Avista decision concerns another portion of the same Northern
Pacific right of way along the Clark Fork River. It provides additional
historical background.
8 ESTATE OF FINNIGAN V. UNITED STATES
States, 315 U.S. 262 (1942); Brandt, 572 U.S. at 103. That
distinction carried legal significance. Rights of way
previously granted as limited fee interests vested title to the
land in the railroad companies but allowed the United States
to reclaim the land upon forfeiture or abandonment. Because
the United States maintained a reversionary interest, the
railroad companies could not voluntarily transfer their
interests, nor could third parties acquire title to the land by
way of adverse possession. Avista, 549 F.3d at 1242–43. This
arrangement effectively kept title to those public lands in the
government. However, when Congress changed the nature of
the right of way to an easement in 1871, it allowed “full title
to that right of way [to] vest in the patentee of the land” upon
unilateral abandonment by the railroad company, because that
“easement would cease.” Brandt, 572 U.S. at 105 (internal
quotation marks omitted).
In 1922, Congress changed the treatment of abandoned
tracks when it passed the Abandoned Railroad Right of Way
Act, codified in 43 U.S.C. § 912.3 Under that provision, title
3
43 U.S.C. § 912 provides, in a run-on sentence of a kind sometimes
found in statutes:
Whenever public lands of the United States have been
or may be granted to any railroad company for use as a
right of way for its railroad or as sites for railroad
structures of any kind, and use and occupancy of said
lands for such purposes has ceased or shall hereafter
cease, whether by forfeiture or by abandonment by said
railroad company declared or decreed by a court of
competent jurisdiction or by Act of Congress, then and
thereupon all right, title, interest, and estate of the
United States in said lands shall, except such part
thereof as may be embraced in a public highway legally
established within one year after the date of said decree
ESTATE OF FINNIGAN V. UNITED STATES 9
to the right of way that would otherwise revert to the
government could be transferred to the owner of the land
traversed by the abandoned railroad, unless the right of way
was within a municipality or had been turned into a public
highway (the “public highway exception”). See 43 U.S.C.
§ 912. In particular, the statute provided that a right of way
shall be “transferred to and vested in” the adjacent landowner
if the railroad company’s “use and occupancy of said lands
. . . has ceased or shall hereafter cease . . . by abandonment by
or forfeiture or abandonment be transferred to and
vested in any person, firm, or corporation, assigns, or
successors in title and interest to whom or to which title
of the United States may have been or may be granted,
conveying or purporting to convey the whole of the
legal subdivision or subdivisions traversed or occupied
by such railroad or railroad structures of any kind as
aforesaid, except lands within a municipality the title to
which, upon forfeiture or abandonment, as herein
provided, shall vest in such municipality, and this by
virtue of the patent thereto and without the necessity of
any other or further conveyance or assurance of any
kind or nature whatsoever: Provided, That this section
shall not affect conveyances made by any railroad
company of portions of its right of way if such
conveyance be among those which have been or may
after March 8, 1922, and before such forfeiture or
abandonment be validated and confirmed by any Act of
Congress; nor shall this section affect any public
highway on said right of way on March 8, 1922:
Provided further, That the transfer of such lands shall
be subject to and contain reservations in favor of the
United States of all oil, gas, and other minerals in the
land so transferred and conveyed, with the right to
prospect for, mine, and remove same.
10 ESTATE OF FINNIGAN V. UNITED STATES
said railroad company declared or decreed by a court of
competent jurisdiction or by Act of Congress.” Id.4
After Northern Pacific physically abandoned the 20-mile
segment in 1958, Avista, 549 F.3d at 1248, several
landowners along the right of way sought a judicial decree of
abandonment in accordance with § 912, and they ultimately
gained title to their respective segments of the abandoned
railway. See, e.g., Bennett v. United States, No. 6262-28
(Sanders Cnty., Mont. Nov 25, 1980); Olson v. Cnty. of
Sanders, No. DV-85-37 (Sanders Cnty., Mont. Oct. 13,
1987); Noxon Rural Fire Dist. v. Evans, No. 96-06 (Sanders
Cnty., Mont. Nov. 12, 1996).
4
As the relevant committee report explained:
[A]bandoned or forfeited strips are of little or no value
to the Government and [. . .] in rural communities they
ought in justice to become the property of the person to
whom the whole of the legal subdivision had been
granted or his successor in interest. Granting such relief
in reality gives him only the land covered by the
original patent. The attention of the committee was
called, however, to the fact that in some cases highways
have been established on abandoned rights of ways or
that it might be desirable to establish highways on such
as may be abandoned in the future. Recognizing the
public interest in the establishment of roads, your
committee safeguarded such rights by suggesting the
amendments above referred to protecting not only roads
now established but giving the public authorities one
year’s time after a decree of forfeiture or abandonment
to establish a public highway upon any part of such
right of way.
S. Rep. 388, 67th Cong., 2d Sess. 1 (1922).
ESTATE OF FINNIGAN V. UNITED STATES 11
The Estate’s predecessor-in-interest, Lottie Moore
Finnigan, did not seek a judicial decree of abandonment at
that time or for many years thereafter. Finnigan had acquired
a land patent to the land adjacent to Northern Pacific’s right
of way in 1922, the same year that Congress enacted § 912.
It was not until 1996 that the Estate, under successor
Glowdena B. Finnigan, brought a quiet title action against
Northern Pacific’s successor in interest, the Burlington
Railroad Company, and Sanders County, where the property
is located (“the 1996 case”). See Finnigan v. Burlington N.
R.R. Co. & Sanders Cnty., No. DV-96-46 (Sanders Cnty.,
Mont. Dec. 10, 1996). The United States was not named as a
party to that action.
In the meantime, however, Congress had changed course
again. By the 1980s, the struggling railroad industry was
abandoning 4,000 to 8,000 miles of railroad per year. In 1983,
concerned about the proliferation of abandoned railroads,
Congress created a system of “railbanking” to preserve
inactive corridors for future use while permitting interim trail
use. In 1988, Congress enacted the National Trails System
Improvements Act of 1988, colloquially known as the “Rails-
to-Trails Act,” codified in 16 U.S.C. § 1248(c).5
5
16 U.S.C. § 1248(c) provides:
Commencing October 4, 1988, any and all right, title,
interest, and estate of the United States in all
rights-of-way of the type described in section 912 of
Title 43, shall remain in the United States upon the
abandonment or forfeiture of such rights-of-way, or
portions thereof, except to the extent that any such
right-of-way, or portion thereof, is embraced within a
public highway no later than one year after a
12 ESTATE OF FINNIGAN V. UNITED STATES
As its colloquial name implies, the Rails-to-Trails Act
grew out of a movement to convert abandoned railways into
recreation areas for hiking, biking, skiing, and snowshoeing.
Under § 1248(c), Congress provided that title to a right of
way “shall remain” with the United States for railroad rights
of way abandoned after October 4, 1988, except to the extent
that the right of way was converted to a public highway
within one year of abandonment. In effect, § 1248(c) reversed
the policy of § 912 and preserved the government’s interests
in rights of way abandoned after 1988. Id.
In 2018, the Estate brought the present action against the
United States to quiet its title to the right of way across its
property that Northern Pacific stopped using in 1958. The
Estate argued that § 912 controlled, because Northern Pacific
stopped using the right of way in 1958, even though the
railway was not formally declared abandoned before the 1988
enactment of the Rails-to-Trails Act. The federal government
disagreed.
The district court held that “abandonment” required both
physical abandonment and a judicial or legislative decree of
abandonment. Because the right of way at issue was not
decreed abandoned until after 1988, the district court
concluded that § 1248(c) controlled and that title had reverted
to the United States. The district court entered summary
judgment in favor of the government. The Estate timely
appealed.
determination of abandonment or forfeiture, as
provided under such section.
ESTATE OF FINNIGAN V. UNITED STATES 13
II. Discussion
We have jurisdiction under 28 U.S.C. §1291. We review
the grant of a motion for summary judgment de novo.
WildEarth Guardians v. Provencio, 923 F.3d 655, 664 (9th
Cir. 2019).
We begin by looking at the text of the statute. By its
terms, the Rails-to-Trails Act applies, starting October 4,
1988, to rights of ways of the kind previously covered by the
1922 statute. The critical passage provides:
Commencing October 4, 1988, any and all
right, title, interest, and estate of the United
States in all rights-of-way of the type
described in section 912 of Title 43, shall
remain in the United States upon the
abandonment or forfeiture of such
rights-of-way, or portions thereof . . . .
16 U.S.C. § 1248(c) (emphasis added). A right of way “of the
type described in section 912” is one that exists until its
forfeiture or abandonment is “declared or decreed by a court
of competent jurisdiction or by Act of Congress.” 43 U.S.C.
§ 912.
Thus, the central question is whether the United States
had retained an interest in the right of way that traverses the
Estate when the Rails-for-Trails Act became effective on
October 4, 1988. The resolution of that issue depends, in turn,
on whether, a right of way should be deemed “abandoned”
when physically abandoned or whether the term
“abandonment” requires both physical abandonment and a
14 ESTATE OF FINNIGAN V. UNITED STATES
judicial decree of abandonment when transferring the land to
a neighboring landowner.
A. Requiring a Decree of “Abandonment”
On de novo review, we agree with the district court that
when it comes to transferring rights of way to neighboring
landowners, abandonment requires both physical
abandonment and a decree of abandonment. Section 1248(c)
thus controls.
We have already held that “abandonment” of a right of
way in this context requires two steps:
In order for reversionary rights to vest under
§ 912, the railroad must 1) cease “use and
occupancy” of the rights of way and
2) abandonment must be “declared or
decreed” by a court of competent jurisdiction
or a congressional act.
Vieux v. E. Bay Reg’l Park Dist., 906 F.2d 1330, 1337 (9th
Cir. 1990). That conclusion was driven by § 912’s
requirement that “forfeiture or by abandonment by said
railroad company [be] declared or decreed by a court of
competent jurisdiction or by Act of Congress.” 43 U.S.C.
§ 912. Only “then and thereupon [shall] all right, title,
interest, and estate of the United States . . . be transferred” to
the adjoining landowner. Id. We took these provisions to
impose a two-step requirement, both physical abandonment
and a judicial or congressional decree recognizing it. See
Vieux, 906 F.2d at 1337.
ESTATE OF FINNIGAN V. UNITED STATES 15
We later applied that two-step test in Avista, a case
involving another portion of the same right of way along the
Clark Fork. We emphasized that both steps had to have been
accomplished before the property would qualify as
abandoned for the purpose of transferring it to neighboring
landowners:
Vieux underscored that for any reversionary
property rights to vest, the use and occupancy
of the land must have ceased by abandonment
or forfeiture and the abandonment or
forfeiture must have been declared by
Congress or a court of competent jurisdiction.
Avista, 549 F.3d at 1246–47.
Perhaps recognizing our precedent that abandonment
requires two steps, including a judicial decree or
congressional declaration, the Estate argues that § 1248(c)
should be interpreted to require that only the first step, the
physical abandonment, needed to have occurred before
October 4, 1988. Under that reading, the second step could be
accomplished at any point thereafter, including through the
current action brought by the Estate to quiet its title to the
property in question, now more than sixty years after its
physical abandonment and more than thirty years after the
enactment of § 1248(c).
That approach is not consistent with the text of § 1248(c),
however. If it were any railroad right of way, regardless of
what § 912 provided, § 1248(c) could just say “railroad right
of way,” but it does not. Because the Estate did not seek a
formal decree or declaration of abandonment until much later,
“all right, title, interest, and estate of the United States” in the
16 ESTATE OF FINNIGAN V. UNITED STATES
right of way was retained by the United States, regardless of
whatever inchoate interest the Estate may previously have
had. 43 U.S.C. § 912. Starting October 4, 1988, the Rails-to-
Trails Act required that “any and all right, title, interest, and
estate of the United States” so retained under § 912 “remain
in the United States.” 16 U.S.C. § 1248(c). It does not say
that such interests will remain with the United States until the
adjoining landowner finally takes action to obtain a judicial
or congressional decree under § 912, nor does it suggest that
there is anything limited or temporary about the rights
retained by the United States. The Estate’s preferred
interpretation is thus foreclosed by a plain reading of
§ 1248(c).
The Estate’s approach is also inconsistent with
Congress’s purpose in enacting § 1248(c): to retain title to
thousands of miles of rights of way to convert to recreational
trails, at a time when abandoned railroads were proliferating
throughout the country. If Congress had determined to limit
the reach of § 1248(c) only to physical abandonments
occurring after October 4, 1988, or to permit adjoining
landowners to obtain the judicial or congressional decrees
required under § 912 at any date into the future – thus
allowing abandoned but yet unclaimed parcels to remain in
limbo – it could, and presumably would, have said so.
B. Requiring Parcel-Specific Determinations
The Estate argues that even if § 1248(c)’s two-step
requirement applies, the judicial-decree requirement was met
when another parcel that was also within the 20-mile segment
of track abandoned by the Northern Pacific in 1958 obtained
a judicial decree of abandonment. The Estate cites, for
example, a judgment issued by the state district court in 1980
ESTATE OF FINNIGAN V. UNITED STATES 17
concerning an action brought by landowner David Bennett to
quiet title to the right of way that crossed property that he
owned. See Bennett, No. 6262-28. It appears that the federal
government within that action disclaimed any interest in that
property. By its express terms, however, the judicial decree
in that case was limited to the precise parcel for which the
plaintiffs there quieted title. It did not cover the parcel that
the Estate seeks to claim in this action.
A judicial decree of abandonment is particular to the
parcel at issue and to the parties in the case. The Bennett case
might serve as evidence that the railroad company’s use of
the right of way ended around 1958, but that fact, satisfying
the first step, is not in dispute. The case cannot satisfy the
requirement of the second step, that “the abandonment or
forfeiture must have been declared by Congress or a court of
competent jurisdiction.” Avista, 549 F.3d at 1246–47. A
particularized declaration of abandonment is necessary to put
the public on notice. See id. at 1250. From that point, the
clock starts running for state and local governments to claim
the property for other permitted uses, such as building a
public highway. See id. at 1250 n.11. If a single declaration
could apply to an entire railroad line, it would not provide
local governments adequate opportunity for parcel-specific
factual development and could impede determinations about
the continuing usefulness of particular segments of the right
of way.
The Estate did seek a judicial decree concerning its
property in 1996. Although that case was specific to the
parcel at issue, it failed to name the United States as a
defendant, and it brought no claims under the Quiet Title Act,
codified in 28 U.S.C. § 2409a, as would normally be required
to affect a federal interest in real property. We need not
18 ESTATE OF FINNIGAN V. UNITED STATES
decide the effect of those elements of the 1996 decree,
however, as that decree suffers from a more important defect.
It was brought years after the 1988 enactment of § 1248(c),
and by that time the statute provided that title to the
abandoned right of way would remain with the federal
government, except for any portion that had been taken for a
public highway.
C. The County Road
In the 1970s, Sanders County established a county road
within the railroad right of way that traverses the Finnigan
property. The Estate claims that the public highway exception
is not at issue here because, in the 1996 case, Finnigan
granted a 60-foot right of way to Sanders County for the road
in consideration for the County’s agreement not to take any
further action to establish public roads, highways, or
facilities.
As we noted in Avista, “[under] the normal sequence of
events, the entry of a final judgment declaring the right of
way abandoned under § 912 would serve to commence the
time period during which the highway exception could be
established by the creation of a public road.” 549 F.3d
at 1251. However, in this case, as in Avista, the public road
had already been established before the declaration of
abandonment. Nevertheless, in Avista, we determined that
under the § 912 scheme, even if the landowners’ inchoate
reversionary interests vested with the entry of a judicial
decree of abandonment, they would be “immediately divested
by the existence of a previously established public road.” Id.
The same would hold true for the 1996 case, if § 912 applied.
ESTATE OF FINNIGAN V. UNITED STATES 19
However, § 1248(c) does not require that the United
States obtain a formal decree of abandonment. Thus, we
conclude that any portion of the right of way dedicated to
public road use transfers to Sanders County because § 1248
provides that title reverts to the United States except “to the
extent that any such right of way, or portion thereof, is
embraced within a public highway.” Accord Avista, 549 F.3d
at 1251 (comparing the highway exceptions under § 912 and
§ 1248(c)).
We thus conclude that § 1248(c) applies, and the right of
way at issue reverts to the United States, save for the land
used to establish a county road.
III. Conclusion
We affirm the district court’s grant of summary judgment
in favor of the United States.
AFFIRMED.
IKUTA, Circuit Judge, dissenting:
This case presents a straightforward question of statutory
interpretation. The majority merely had to interpret the
meaning of “abandonment” as that term is used in 16 U.S.C.
§ 1248(c). If we use the dictionary definition of the term,
“abandonment” means physical abandonment. Using that
definition, the Northern Pacific Railroad Company
abandoned its right of way traversing the property at issue in
1958. Because the abandonment occurred before October 4,
1988, see 16 U.S.C. § 1248(c), the Finnigan Estate is entitled
20 ESTATE OF FINNIGAN V. UNITED STATES
to the property upon a judicial decree of abandonment. The
majority errs by relying on cases construing a different
statute, failing to address the text of § 1248(c), and failing to
explain how its construction of § 1248(c) makes sense in light
of the overall statutory scheme. Therefore, I dissent.
I
A
The issue in this case arises because Congress has enacted
two separate schemes for the disposition of railroad rights of
way that the United States granted to railroad companies and
that reverted to the United States when the railroad
companies no longer needed them.
In 1864, Congress enacted the Northern Pacific Railroad
Company Land Grant Act of 1864 (the 1864 Act), which
granted Northern Pacific a right of way over public land from
Lake Superior to the coast of Washington state. Avista Corp.
Inc. v. Wolfe, 549 F.3d 1239, 1242 (9th Cir. 2008). The
Supreme Court held that the 1864 Act gave Northern Pacific
a limited fee interest in the public land with “an implied
condition of reverter.” See N. Pac. Ry. Co. v. Townsend,
190 U.S. 267, 271 (1903). Under ordinary principles of
property law, if Northern Pacific “ceased to use or retain the
land for the purpose for which it was granted,” the land would
automatically revert to the United States. See id.; see also
Avista, 549 F.3d at 1242.
Congress has adopted two approaches for dealing with the
rights of way that revert to the United States upon
abandonment.
ESTATE OF FINNIGAN V. UNITED STATES 21
First, in 1922, Congress enacted the Abandoned Railroad
Right of Way Act, codified at 43 U.S.C. § 912.1 Section 912
addresses the situation when “public lands of the United
States have been or may be granted to any railroad company
for use as a right of way” and the “use and occupancy of said
lands for such purposes has ceased.” 43 U.S.C. § 912. Under
Townsend, such a cessation of use automatically causes the
property to revert to the United States. See 190 U.S. at 271.
If the railroad company’s cessation of use is “declared or
decreed by a court of competent jurisdiction,” then a further
transfer is triggered. 43 U.S.C. § 912. As stated in § 912,
“then and thereupon all right, title, interest, and estate of the
1
43 U.S.C. 912 reads:
Whenever public lands of the United States have been
or may be granted to any railroad company for use as a
right of way for its railroad or as sites for railroad
structures of any kind, and use and occupancy of said
lands for such purposes has ceased or shall hereafter
cease, whether by forfeiture or by abandonment by said
railroad company declared or decreed by a court of
competent jurisdiction or by Act of Congress, then and
thereupon all right, title, interest, and estate of the
United States in said lands shall, except such part
thereof as may be embraced in a public highway legally
established within one year after the date of said decree
or forfeiture or abandonment be transferred to and
vested in any person, firm, or corporation, assigns, or
successors in title and interest to whom or to which title
of the United States may have been or may be granted,
conveying or purporting to convey the whole of the
legal subdivision or subdivisions traversed or occupied
by such railroad or railroad structures of any kind as
aforesaid.
43 U.S.C. § 912.
22 ESTATE OF FINNIGAN V. UNITED STATES
United States in said lands shall . . . be transferred to and
vested in any person” to whom the United States previously
granted the property that was traversed by the right of way.
Id.2
Many years later, in 1988, Congress adopted a different
scheme applicable to “railroad rights of way abandoned after
October 4, 1988.” Avista, 549 F.3d at 1243 n.2. In the
National Trails System Improvements Act of 1988, Congress
provided that the United States’ reversionary interest in
railroad rights of way “shall remain in the United States upon
the abandonment or forfeiture of such rights-of-way” after
October 4, 1988. 16 U.S.C. § 1248(c).3 Unlike § 912,
§ 1248(c) does not mention a judicial decree of abandonment
2
Congress made a number of exceptions to this disposition, including
for any part of a right of way “embraced in a public highway legally
established within one year after the date of said decree or forfeiture or
abandonment.” 43 U.S.C. § 912.
3
The entire provision reads:
Commencing October 4, 1988, any and all right, title,
interest, and estate of the United States in all
rights-of-way of the type described in section 912 of
Title 43, shall remain in the United States upon the
abandonment or forfeiture of such rights-of-way, or
portions thereof, except to the extent that any such
right-of-way, or portion thereof, is embraced within a
public highway no later than one year after a
determination of abandonment or forfeiture, as
provided under such section.
16 U.S.C. § 1248(c).
ESTATE OF FINNIGAN V. UNITED STATES 23
or require the United States to obtain one in order to retain its
reversionary interest.4
In short, Congress enacted two schemes for disposing of
the United States’ reversionary interest in abandoned railroad
rights of way, both of which are still in effect. Under § 912,
the United States’ reversionary interest is generally
transferred to certain private landowners if they obtain a
judicial decree of abandonment. But under § 1248(c), the
United States retains its reversionary interest (without any
judicial decree being required) for any right of way
abandoned after October 4, 1988. Because § 1248(c) did not
repeal § 912, both schemes remain in effect today.
B
The question here is which statute, § 912 or § 1248(c),
applies to the right of way traversing the Finnigan property.
The right of way that traverses the Finnigan property is part
of a much longer 20-mile segment of right of way along the
Clark Fork River. The key dates are not in dispute. Northern
Pacific ceased to use the 20-mile segment of the right of way
for railroad purposes in 1958. See Avista, 549 F.3d at 1247.
Although other landowners whose property was traversed by
the 20-mile segment obtained judicial decrees of
abandonment, Finnigan did not. The Finnigan Estate finally
filed a quiet-title action in district court against the United
States in 2018. The district court held that § 1248(c) applied
to the right of way because no judicial decree of abandonment
4
Section 1248(c) creates an exception for any right of way “embraced
within a public highway no later than one year after a determination of
abandonment or forfeiture, as provided” under the 43 U.S.C. § 912.
16 U.S.C. § 1248(c).
24 ESTATE OF FINNIGAN V. UNITED STATES
had been issued prior to October 4, 1988. Therefore, the
court ruled that the United States retained the reversionary
interest in the right of way.
The majority now affirms the district court’s decision
based on the following reasoning. According to the majority,
the term “abandonment” in § 1248(c) means “both physical
abandonment and a judicial or congressional decree
recognizing it.” Majority at 13–14. Because the Finnigan
Estate did not obtain a judicial decree before October 4, 1988,
the majority reasons, the right of way was not abandoned
before that date, and so § 1248(c) necessarily applies.
C
In ruling that abandonment means “both physical
abandonment and a judicial or congressional decree
recognizing it,” the majority ignores the statutory text of
§ 1248(c) and the overall statutory scheme involving
abandoned railroad rights of way; it therefore reaches an
erroneous result.
As always, we must start with the statutory text. See
BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004).
Section 1248(c) provides that “any and all right, title, interest,
and estate of the United States in all [railroad] rights-of-way
of the type described in section 912 of title 43, shall remain
in the United States upon the abandonment or forfeiture of
such rights-of-way, or portions thereof . . . .” 16 U.S.C.
§ 1248(c). The statute does not define abandonment, so we
consider its “ordinary, dictionary meaning.” See In re Roman
Cath. Archbishop of Portland in Or., 661 F.3d 417, 432 (9th
Cir. 2011). We frequently consider both “popular
dictionaries,” Metro One Telecomms., Inc. v. Comm’r,
ESTATE OF FINNIGAN V. UNITED STATES 25
704 F.3d 1057, 1061 (9th Cir. 2012), and Black’s Law
Dictionary, see Ariz. Health Care Cost Containment Sys. v.
McClellan, 508 F.3d 1243, 1250 n.9 (9th Cir. 2007).
“Abandonment” is defined as “relinquishment by a
nonuser.” Abandonment, Webster’s Third New International
Dictionary 2 (1961). This dictionary definition is consistent
with the legal definition: “relinquishing of or departing from
. . . with the present, definite, and permanent intention of
never returning or regaining possession.” Abandonment,
Black’s Law Dictionary (11th ed. 2019). Thus, the plain
meaning of abandonment is physical abandonment. Using
this plain meaning, § 1248(c) provides that when a right of
way is physically abandoned after October 4, 1988, the
United States retains its reversionary interest.
Under our precedent, “[u]nless the plain meaning leads to
an absurd or unreasonable result, which it does not here, our
judicial inquiry is at an end.” United States v. King, 244 F.3d
736, 740 (9th Cir. 2001) (cleaned up). It is more than
reasonable to use the plain meaning of “abandonment” here.
The interest in a right of way automatically reverts to the
United States when a railroad company physically abandons
it. See Townsend, 190 U.S. at 271. Therefore, under
§ 1248(c), when a railroad physically abandons a right of way
after October 4, 1988, the United States retains its interest in
the right of way. Congress could reasonably conclude that
the United States would not need to obtain a judicial decree
of abandonment in order to retain the reversionary interest it
already possessed under Townsend. Therefore, it makes
sense to read § 1248(c) as applying upon physical
abandonment of a right of way, not upon the issuance of a
judicial decree (which § 1248(c) does not mention).
26 ESTATE OF FINNIGAN V. UNITED STATES
By contrast, under § 912, Congress provided that a private
landowner could not claim interest in part of an abandoned
right of way without some judicial action. This also makes
sense: Congress could reasonably conclude that a third party
should not be able to claim that a right of way traversing its
property was abandoned by the railroad without some judicial
review and approval.
Nor does the context of § 1248(c) require a different
interpretation. See BedRoc Ltd., 541 U.S. at 185 (considering
a word’s statutory context to confirm its ordinary meaning).
Rather, interpreting “abandonment” according to its
dictionary definition avoids redundancies in § 1248(c). See
Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881
(2019). Section 1248(c), for example, carves out an
exception for public highways created “no later than one year
after a determination of abandonment.” 16 U.S.C. § 1248(c).
It would be redundant for Congress to refer, in the same
provision, to an “abandonment” and a “determination of
abandonment” if the word abandonment necessarily included
obtaining a judicial decree (i.e., a determination) of
abandonment. Similarly, § 912 creates an exception for any
part of a right of way “embraced in a public highway legally
established within one year” of a “decree or . . .
abandonment.” 43 U.S.C. § 912. Again, it would be
redundant for Congress to refer to a “decree . . . or
abandonment” if the word “abandonment” necessarily
included a decree. These redundancies are a “clue” that the
proper interpretation of abandonment in § 1248(c) is physical
abandonment. Rimini St., 139 S. Ct. at 881.
Because the best interpretation of “abandonment” is
physical abandonment, § 1248(c) is applicable only when the
physical abandonment of a right of way described in § 912
ESTATE OF FINNIGAN V. UNITED STATES 27
occurs after October 4, 1988. Because there is no dispute that
Northern Pacific abandoned the right of way at issue well
before October 4, 1988, § 1248(c) is simply not applicable
here.
II
The majority does little to justify its contrary holding.
Instead of interpreting the text of § 1248(c), the majority
relies on cases construing a different statute, § 912. See
Majority at 14 (citing Avista, 549 F.3d at 1246–47; Vieux v.
E. Bay Reg’l Park Dist., 906 F.2d 1330, 1337 (1990)). This
reliance is misplaced. Unlike § 1248(c), § 912 explains the
conditions under which the United State’s reversionary
interest in a right of way is deemed to be transferred to a
private landowner whose property is traversed by the right of
way. As Vieux and Avista explain, before a private
landowner can claim this reversionary interest, “the railroad
must 1) cease ‘use and occupancy’ of the rights of way and
2) abandonment must be ‘declared or decreed’ by a court of
competent jurisdiction or a congressional act.” Vieux,
906 F.2d at 1337 (emphasis in original). This two-step
process makes sense in the § 912 context: there must be a
physical abandonment, which causes the property to
automatically revert to the United States, and then there must
be a judicial ruling for the reversionary interest in the right of
way to vest in the relevant landowner. See Avista, 549 F.3d
at 1246–47 (reiterating that “for any reversionary property
rights to vest, the use and occupancy of the land must have
ceased by abandonment or forfeiture and the abandonment or
forfeiture must have been declared by Congress or a court of
competent jurisdiction”).
28 ESTATE OF FINNIGAN V. UNITED STATES
But our analysis of § 912 in these cases clearly does not
apply to either the language or purpose of § 1248(c). In fact,
construing “abandonment” to mean “both physical
abandonment and a judicial or congressional decree
recognizing it” in § 1248(c), Majority at 14, would have an
absurd result. Because § 1248(c) provides that the
reversionary interest “shall remain in the United States upon
the abandonment or forfeiture of such rights-of-way,” the
majority’s interpretation would require the United States to
obtain a judicial decree in order to claim its reversionary
interest in abandoned rights of way. This reading is contrary
to Townsend, which held that interest in an abandoned right
of way automatically reverts to the United States. Townsend,
190 U.S. at 271.
In fact, the majority’s interpretation of “abandonment” to
mean “both physical abandonment and a judicial or
congressional decree recognizing it” does not even make
sense when applied to § 912. If the word “abandonment”
necessarily included obtaining a declaration or decree of
abandonment, it would not be necessary to state that a
landowner can claim the right of way only if “the use and
occupancy of the land . . . ceased by abandonment or
forfeiture and the abandonment or forfeiture [was] declared
by Congress or a court of competent jurisdiction.” Avista,
549 F.3d at 1246–47. Rather than a two-step process, a one-
step process would suffice. The majority fails to explain—or
even discuss—the problems with its interpretation.5
5
The majority’s interpretation of the phrase “all rights-of-way of the
type described in section 912 of title 43” in § 1248(c) as referring to a
right of way “that exists until its forfeiture or abandonment is ‘declared or
decreed by a court of competent jurisdiction or by Act of Congress,’”
Majority at 13, provides no support for its argument that “abandonment”
ESTATE OF FINNIGAN V. UNITED STATES 29
Finally, the majority claims that interpreting abandonment
to mean physical abandonment is “inconsistent with
Congress’s purpose in enacting § 1248(c): to retain title to
thousands of miles of rights of way . . . at a time when
abandoned railroads were proliferating throughout the
country.” Majority at 16. “But policy arguments cannot
supersede the clear statutory text.” Universal Health Servs.,
Inc. v. United States, 136 S. Ct. 1989, 2002 (2016).6
Moreover, the majority’s policy concerns are misplaced. As
the Supreme Court has explained, by the late 1980s experts
had predicted that approximately 3,000 miles of railroad
would be physically abandoned every year through the end of
the twentieth century. See Preseault v. ICC, 494 U.S. 1, 5
(1990). Interpreting § 1248(c) consistent with the plain
meaning of abandonment would therefore leave plenty (as
much as 36,000 miles by 2000 alone) of physically
abandoned railroad for the government to reclaim after
October 4, 1988.
***
means “both physical abandonment and a judicial or congressional decree
recognizing it,” Majority at 14. Under Townsend, the reversionary interest
in a right of way (however it is defined) automatically vests in the United
States once the railroad company has physically abandoned it. See 190
U.S. at 271. Under § 1248(c), such a right of way remains in the United
States only if it was abandoned after October 4, 1988. Avista, 549 F.3d at1243 n.2.
6
Contrary to the majority, the text of § 912 does not put any time
limit on when adjoining landowners may obtain judicial or congressional
decrees for physically abandoned parcels; therefore, Congress did
expressly permit “adjoining landowners to obtain the judicial or
congressional decrees required under § 912 at any date into the future.”
Majority at 16.
30 ESTATE OF FINNIGAN V. UNITED STATES
Because the term “abandonment” in § 1248(c) means
physical abandonment, and Northern Pacific physically
abandoned the property at issue well before October 4, 1988,
§ 1248(c) is not applicable here. Instead, § 912 applies, and
the Finnigan Estate should take title to the right of way at
issue here whenever a court of competent jurisdiction
declares that it has been abandoned. The government
concedes that federal courts are courts of competent
jurisdiction for purposes of § 912. Thus, I would reverse and
remand to the district court with instructions to declare the
Finnigan right of way abandoned and quiet title to the
Finnigan Estate.