Appeal from the United States District Court for the District of Montana, Jeremiah C. Lynch, Magistrate Judge, Presiding, D.C. No. CV-05-00201-JCL.
The opinion of the court was delivered by: Thomas, Circuit Judge
Argued and Submitted August 11, 2008
Submission deferred August 11, 2008
Billings, Montana Resubmitted December 11, 2008
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and Sidney R. Thomas, Circuit Judges.
This appeal presents the question of whether a court may retroactively declare a railroad right of way abandoned under the Abandoned Railway Right of Way Act. We conclude that the Act does not permit a nunc pro tunc abandonment declaration.
The storied Clark Fork River in Montana was formed from floods left by the last ice age and named by Meriwether Lewis during the expedition's return from the west coast. Its tributaries were celebrated by author Norman Maclean in his novella A River Runs Through It.*fn1 One of the most spectacular settings in the lower Clark Fork River valley is just over a one-lane bridge from Noxon, Montana, where the use of the rails ended and our controversy began.
The right of way at issue was granted to the Northern Pacific Railroad Company pursuant to the Northern Pacific Railroad Company Land Grant Act of 1864, 13 Stat. 365. The 1864 Act grew out of Congress' efforts in the mid-19th Century, intensified by the Gold Rush and the Civil War, to settle the American West and provide a direct link to California. Leo Sheep Co. v. United States, 440 U.S. 668, 670-77 (1979) (discussing in detail the history of this period of railroad development). Beginning in 1850, Congress passed a series of statutes granting public lands to private railroad companies to spur the construction of a cross-country railroad. Great N. Ry. v. United States, 315 U.S. 262, 273 & n.6 (1942). During this period, Congress often granted the railroads alternate sections of land along the right of way - resulting in a "checker-board" of public and private lots - to further subsidize construction. Leo Sheep Co., 440 U.S. at 672. Section 2 of the 1864 Act granted the Northern Pacific with a right of way extending "two hundred feet in width on each side of said railroad where it may pass through the public domain" from Lake Superior to the Puget Sound.
In subsequent years, the policy of granting "lavish" subsidies of public lands to railroads was met with increasing public disfavor. Great N. Ry., 315 U.S. at 273-74. In the wake of the Credit Mobilier scandal in 1872, the House of Representatives adopted a resolution condemning the practice. Cong. Globe, 42d Cong., 2d Sess., 1585 (1872); see Leo Sheep Co., 440 U.S. at 670-77; Great N. Ry., 315 U.S. at 273-74. Although this marked the end of outright land grants, Congress continued to encourage development of the West through the General Railroad Right of Way Act of 1875, which provided easements to railroads across public lands. 43 U.S.C. § 934; see also United States v. Union Pac. R. R., 353 U.S. 112, 119 (1957); Great N. Ry., 315 U.S. at 273-76.
Northern Pacific, like other railroad companies granted land prior to 1875, held title in the right of way in the form of 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." N. Pac. Ry. Co. v. Townsend, 190 U.S. 267, 271 (1903). Under Townsend, land granted to a railroad would revert to the United States in the event the railroad stopped using the right of way for railroad purposes. Id. at 271-72. Because of the United States' potential interest, a railroad did not have the power to voluntarily transfer its interest in the right of way, nor could a private party acquire title to any portion of the right of way by adverse possession. Id.
Twenty years after Townsend, Congress enacted 43 U.S.C. § 912, known as the "Abandoned Railroad Right of Way Act," "to dispose of the abandoned railroad lands to which the United States held a right of reverter under Townsend." Mauler v. Bayfield County, 309 F.3d 997, 999 (7th Cir. 2002); Pub. L. No. 67-163, 42 Stat. 414 (1922). Section 912 provides in relevant part:
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 . . . .
In short, § 912 requires that public lands given by the United States for use as railroad rights of way be turned into public highways within one year of their abandonment or be given to the owners of the land traversed by the right of way. Through the public highway exception, Congress sought to ensure that former rights of way could continue to be used for public transportation purposes. Vieux v. E. Bay Reg'l Park Dist., 906 F.2d 1330, 1335 (9th Cir. 1990).*fn2
By the early 1880s, Northern Pacific had constructed its rail line on the south bank of the Clark Fork River in northwestern Montana. The rail line crossed what would later be surveyed as Government Lot 5 of Section 24 in Township 26 North, Range 33 West. In 1921, Arthur Hampton acquired the patent to Government Lot 5 under the Homestead Act of 1862. The patent purported to convey all of Government Lot 5, and contained no mention of Northern Pacific's pre-existing right of way.
In the early 1950s, Washington Water Power, a predecessor of Avista, began construction of the Cabinet Gorge Dam in Idaho, which created the Cabinet Gorge Reservoir on the Clark Fork River in Idaho and Montana. To fill the reservoir, Washington Water Power needed to secure either fee title to the shoreline or water flowage easements over shoreline property. Accordingly, in July 1952, Arthur Hampton's widow, Fanny Hampton, deeded "[a]ll that part of Government Lot 5 . . . lying north of the Northern Pacific right of way" to Washington Water Power. The conveyance included roughly .84 acres lying in between the Northern Pacific right of way and the Clark Fork River, as well as
. . . all tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining, and the reversion or reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, right of dower and right of homestead, possession, claim, and demand whatsoever, as well in law as in equity [of Fanny Hampton] of, in or to the said premises, and every part and parcel thereof, with the appurtenances thereto belonging . . . .
One year later, in July 1953, Northern Pacific purported to relinquish to the United States a one hundred foot wide strip of the right of way, adjacent to the land conveyed to Washington Water Power by Fanny Hampton. The United States Bureau of Land ...