No equal jus­tice for landown­ers

A Wy­oming landowner who fought fed­eral in­tru­sion de­serves to be com­pen­sated

The Washington Times Weekly - - Commentary - By Low­ell E. Baier and Christo­pher E. Se­gal

Lawyers are ex­pen­sive, es­pe­cially when ci­ti­zens fight the fed­eral gov­ern­ment. That is why, in 1980, Congress passed the Equal Ac­cess to Jus­tice Act (EAJA), which au­tho­rizes those who pre­vail in lit­i­ga­tion against the fed­eral gov­ern­ment to col­lect at­tor­ney’s fees and ex­penses, that is, un­less fed­eral lawyers were “sub­stan­tially jus­ti­fied,” in bring­ing and lit­i­gat­ing the case. Sadly, a Wy­oming fed­eral dis­trict court re­cently turned the EAJA on its head.

Decades ago, fear­ful of the grow­ing fed­eral reg­u­la­tory bur­den, small busi­ness own­ers urged Congress to pro­vide a mech­a­nism to de­fend them­selves. One co-spon­sor, U.S. Sen­a­tor Den­nis DeConcini, Ari­zona Demo­crat, pro­claimed the EAJA sought to “en­cour­age [ci­ti­zens] to vin­di­cate their rights and not to ac­qui­esce in a rul­ing or sanc­tion which they be­lieve ar­bi­trary, mis­guided or un­fair.” With­out the EAJA, said U.S. Sen. Pete Domenici, New Mex­ico Repub­li­can, “[I]ndi­vid­u­als and small busi­nesses are . . . forced to knuckle un­der” to the fed­eral gov­ern­ment’s de­mands.

Over the years, the EAJA be­came an es­sen­tial tool for so­cial se­cu­rity and vet­er­ans claimants, in­di­gents, and marginal­ized in­di­vid­u­als. Un­for­tu­nately, in the last 20 years, more and larger EAJA awards are be­ing made to en­vi­ron­men­tal groups that win pro­ce­dural vic­to­ries, while fewer EAJA awards are be­ing made to in­di­vid­ual and busi­nesses that vin­di­cate their rights, in court, against fed­eral lawyers. The Wy­oming rul­ing has made mat­ters worse.

The Gen­eral Rail­road Right-of-Way Act of 1875 granted rail­roads ease­ments across fed­eral land for as long as the land is used for a rail­road. In south­east­ern Wy­oming, the fed­eral gov­ern­ment granted such an ease­ment in 1908. Later, the fed­eral gov­ern­ment trans­ferred some of the underlying land to pri­vate par­ties with­out re­serv­ing sur­face or sub­sur­face rights, in­clud­ing small busi­ness own­ers Melvin and Lulu Brandt who ex­changed 220

After the rail­road aban­doned ser­vice and re­moved the tracks and ties along its 66-mile cor­ri­dor, the fed­eral gov­ern­ment sought a court or­der that it owned the for­mer rail­road right-ofway. Thirty one landown­ers con­ceded or set­tled out of court, but the Brandts’ son Marvin, rep­re­sented by Moun­tain States Le­gal Foun­da­tion, fought back. In 2014, the United States Supreme Court ruled 8-1 that the land be­longed to Mr. Brandt be­cause of a 1942 rul­ing on the same is­sue won by the fed­eral gov­ern­ment.

In­cred­i­bly, the so­lic­i­tor gen­eral did not ar­gue the 1942 rul­ing was wrong but, as Jus­tice Scalia put it, the land “will be an ease­ment when that suits the gov­ern­ment [as it did in 1942], but it will be some­thing else when that suits the gov­ern­ment [as it does against Brandt].” Jus­tice Al­ito lac­er­ated the so­lic­i­tor gen­eral by quot­ing from the gov­ern­ment’s 1942 brief. Jus­tice Breyer opined that “a prop­erty lawyer worth his salt” knows Mr. Brandt owns the land. Jus­tice Ka­gan won­dered aloud “[W]hy any­body would [ar­gue as does the fed­eral gov­ern­ment] is a mys­tery.” The Court ruled, “We de­cline to en­dorse such a stark change in po­si­tion [be­cause] noth­ing in the text of the 1875 Act sup­ports such an im­prob­a­ble (and self-serv­ing) read­ing.”

The case re­turned to Wy­oming where Mr. Brandt got his land back and filed his EAJA ap­pli­ca­tion. Bizarrely, the dis­trict court ruled the gov­ern­ment’s po­si­tion rea­son­able: a Supreme Court jus­tice dis­sented in sup­port of the hold­ings of three ap­pel­late judges and the dis­trict court. That showed, held the dis­trict court, there was “room for de­bate” in the case.

The dis­trict court’s de­ci­sion was doomed given its premise that the EAJA “is to be strictly con­strued in fa­vor of the sov­er­eign.” Fur­ther­more, the dis­trict court mis­char­ac­ter­ized le­gal prece­dent that de­mands “a fair read­ing of the [law],” claim­ing it re­quires “strict con­struc­tion,” and re­lied on this mis­char­ac­ter­i­za­tion to sup­port its opin­ion. The fact is the EAJA places the bur­den of prov­ing that its case was jus­ti­fied from the be­gin­ning on the fed­eral gov­ern­ment. In light of the 1942 rul­ing that was the fed­eral gov­ern­ment’s even­tual un­do­ing, its po­si­tion was never jus­ti­fied.

An ar­gu­ment can be rea­son­able with­out be­ing cor­rect, but that a judge finds it per­sua­sive does not make it rea­son­able. Un­der the EAJA, rea­son­able­ness must be eval­u­ated con­tex­tu­ally “both in law and fact.” The Supreme Court held the gov­ern­ment’s ar­gu­ment had no ba­sis in law; thus, it is nei­ther rea­son­able nor “sub­stan­tially jus­ti­fied.” The dis­trict court sought to evade this de­ci­sion by rul­ing that rea­son­able­ness may be de­fined in the con­text of ei­ther “law or fact.”

Marvin Brandt did not knuckle un­der to the gov­ern­ment’s il­le­gal de­mand and, at great ex­pense, was vin­di­cated. Given the Supreme Court’s rul­ing, if any­one de­serves an EAJA award, it is him. The dis­trict court not only does him great in­jus­tice, it jeop­ar­dizes the abil­ity of any cit­i­zen to re­ceive what Congress in­tended, and evis­cer­ates the EAJA. We only hope that Mr. Brandt will ap­peal, win his at­tor­neys’ fees and ex­penses, and thereby save the EAJA. Low­ell Baier and Christo­pher Se­gal are the au­thors of “In­side the Equal Ac­cess to Jus­tice Act: En­vi­ron­men­tal Lit­i­ga­tion and the Crip­pling Bat­tle over Amer­ica’s Lands, En­dan­gered Species, and Crit­i­cal Habi­tats” (Row­man &Lit­tle­field, 2016).


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