Alaska Railroad Corporation v. Flying Crown Subdivision Addition No. 1 and Addition No. 2 Property Owners Association

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA RAILROAD
CORPORATION,
Plaintiff,
vs.
FLYING CROWN SUBDIVISION
ADDITION NO. 1 AND ADDITION
NO. 2 PROPERTY OWNERS
ASSOCIATION,
Defendant,
MUNICIPALITY OF ANCHORAGE,
DEPARTMENT OF LAW,
Intervenor-
Defendant.
Case No. 3:20-cv-00232-JMK
ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT
I. 	INTRODUCTION
Before the Court at Docket 13 is Plaintiff Alaska Railroad Corporation’s
(“ARRC”) Motion for Summary Judgment. 	Defendant Flying Crown Subdivision
Addition No. 1 and Addition No. 2 Property Owners Association (“Flying Crown”) filed
an abbreviated Response in Opposition at Docket 81. ARRC filed a consolidated Reply in
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support of its Motion for Summary Judgment and Response in Opposition to Flying
Crown’s cross motion at Docket 91.1
Additionally, before the Court at Docket 84 is Defendant Flying Crown’s
Cross Motion for Summary Judgment. 	Flying Crown supports its Cross Motion for
Summary Judgment with a “Consolidated Memorandum In Opposition to Plaintiff’s
Motion for Summary Judgment and In Support of Flying Crown’s Cross-Motion for
Summary Judgment” at Docket 85. ARRC’s consolidated Response is filed at Docket 91.
Flying Crown filed its Reply at Docket 94.
Intervenor-Defendant Municipality of Anchorage (“the Municipality”) filed
a 	Response 	in 	Opposition 	to 	ARRC’s 	Motion 	for 	Summary 	Judgment, 	entitled
“Municipality of Anchorage’s Memo in Support of Opposition to Plaintiff’s Motion for
Summary Judgment” at Docket 86.
Amici curiae ENSTAR Natural Gas Company and Alaska Pipeline Company
(collectively, “ENSTAR”) filed an amicus brief at Docket 88 in support of Flying Crown’s
Opposition to ARRC’s Motion for Summary Judgment. 	Amicus curiae Matanuska
Telecom Association, Inc. (“MTA”) filed an amicus brief at Docket 97 in support of Flying
Crown’s Motion for Summary Judgment. With the Court’s permission, ARRC filed a sur-
reply to MTA’s amicus brief at Docket 111.
1 ARRC’s original consolidated Reply/Response appears at Docket 89, but was incorrectly filed.
Docket 91, therefore, appears as an Errata but contains the complete, correctly filed version.
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The 	Parties 	presented 	oral 	arguments 	on 	November 	30, 	2021, 	and
December 15, 2021, before this Court.2 	Per the discussion below, ARRC’s Motion for
Summary Judgment at Docket 13 is GRANTED. 	Flying Crown’s Cross Motion for
Summary Judgement at Docket 84 is DENIED without prejudice.
II. 	BACKGROUND
The Court’s analysis requires an understanding of complicated legislative
and factual context dating back to the turn of the 20 th century. During the early 1900s, in
the wake of the Klondike Gold Rush, as many as fifty private companies were formed for
the purpose of constructing railroads in the Territory of Alaska.3 	Observing the failures
and financial ruin of these private companies, while recognizing the importance of reliable
rail travel to the commercial development of the Territory, Congress passed the Alaska
Railroad Act of 1914 (“1914 Act”).4 	The 1914 Act authorized the President to locate,
construct, and operate a federal railroad in Alaska and to “acquire rights of way, terminal
grounds, and all other rights” necessary for its construction.5 	The Act also directed the
2 Due to inclement weather, the Court was forced to continue the November 30, 2021, oral
argument to December 15, 2021. See Docket 120.
3 Docket 1 at 3.
4 Act of March 12, 1914, 38 Stat. 305 (formerly codified at 43 U.S.C. § 975, et seq.) (“1914 Act”),
repealed by Alaska Railroad Transfer Act, Pub. L. 97-468, Title VI, § 615(a)(1), 96 Stat. 2556, 2577–78
(1983). 5 1914 Act, § 1 (“Terminal and station grounds and rights of way through the lands of the United
States in the Territory of Alaska are hereby granted for the construction of railroads, telegraph and telephone
lines authorized by this Act, and in all patents for lands hereafter taken up, entered or located in the Territory
of Alaska there shall be expressed that there is reserved to the United States a right of way for the
construction of railroads, telegraph and telephone lines to the extent of one hundred feet on either side of
the center line of any such road. . . .”).
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federal government to reserve a right-of-way in patents issued for all lands conveyed out
of federal ownership.6
On February 15, 1950, the United States issued federal patent No. 1128320
to Thomas Sperstad (“1950 Sperstad Patent”), Flying Crown’s predecessor-in-interest,
granting a parcel of land known as the Sperstad Homestead.7 	The Sperstad Patent
explicitly “reserved to the United States a right-of-way for the construction of railroads,
telegraph and telephone lines in accordance with the Act of March 12, 1914 [(]38 Stat.
305).”8 	An airstrip was later developed on the Sperstad Homestead, along the federal
government’s right-of-way (“ROW”), and coexisted peacefully with the operations of the
railroad.9 According to Flying Crown, when it developed the subdivision, a portion of this
airstrip was included and it is now used by the homeowners.10 	The Municipality has at
least three properties passed to it by federal patents that contain the same language as the
Sperstad Patent, i.e., reserving the federal government’s interest in its ROW pursuant to
the 1914 Act.11
In 1981, Senator Ted Stevens introduced “on behalf of himself and Senator
[Frank] Murkowski S.1500, a bill to provide for the transfer of the Alaska Railroad to the
State of Alaska.”12 Later, in 1983, Congress enacted the Alaska Railroad Transfer Act of
6 Id.
7 Docket 85 at 7.
8 Id. (quoting Docket 13-1).
9 According to Flying Crown, “[a] portion of the airstrip overlaps with the outer edges of Plaintiff
Alaska Railroad Corporation’s [] easement.” Docket 85 at 4.
10 Id. at 8.
11 Docket 86 at 4.
12 S. Rep. No. 97-479, at 5 (1982).
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1982 (“ARTA”), which authorized the transfer of nearly all the federal Alaska Railroad’s
property rights to the State of Alaska’s new Alaska Railroad Corporation (“ARRC”).13 The
Secretary of Transportation was directed to transfer “all rail properties of the Alaska
Railroad” to ARRC, which received all interests that were held at that time by the United
States.14 	Relevant to this case, Section 1203 of ARTA describes the procedures that the
Secretary was directed to follow in making such transfers.15 The federal Alaska Railroad’s
ROW contained in the Sperstad Patent was transferred to ARRC via interim conveyance
which “vest[ed] in the State exactly the same right, title, and interest in and to the rail
properties identified therein as the State would have received had it been issued a patent
by the United States.”16 The Secretary then was directed to survey the land conveyed by
interim conveyance and issue a patent.17
In 2006, the United States apparently perfected this interim conveyance and
transferred its full interest to the state of Alaska in Patent No. 50-2006-0363 (“2006
Patent”), which conveyed an exclusive-use easement across the property subject to the
1950 Sperstad Patent.18 	The 2006 Patent states: 	“[p]ursuant to [ARTA], the right, title,
13 See 45 U.S.C. § 1203(a) (“Subject to the provisions of this chapter, the United States, through
the Secretary, shall transfer all rail properties of the Alaska Railroad to the State.”).
14 ARTA defines all “rail properties of the Alaska Railroad” to mean “all right, title, and interest
of the United States to lands, buildings, facilities, machinery, equipment, supplies, records, rolling stock,
trade names, accounts receivable, goodwill, and other real and personal property, both tangible and
intangible, in which there is an interest reserved, withdrawn, appropriated, owned, administered or
otherwise held or validly claimed for the Alaska Railroad by the United States or any agency or
instrumentality thereof as of January 14, 1983, but excluding any such properties acquired, in the ordinary
course of business after that date but before the date of transfer. . . .” 45 U.S.C. § 1202(10). The definition
goes on to include several exclusions irrelevant to this case.
15 See id. at § 1203(b)(1)(A)–(D).
16 Id. at § 1203(b)(3).
17 Id.
18 Docket 13 at 10.
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and interest granted by the United States in the above-described real property that is located
within the right-of-way of the Alaska Railroad shall be not less than an exclusive-use
easement as defined in Sec. 603(6) of ARTA.”19 Flying Crown alleges it was not notified
of the issuance of the 2006 Patent.20 Although Flying Crown currently accesses the portion
of the runway underlying the ROW free of charge, ARRC previously has charged $4,500
per year for a permit to use the property.21
In 2019, Flying Crown sent a letter to ARRC claiming that the transfer of the
federal Alaska Railroad’s ROW had “attempted to award property rights no longer owned
by the federal government.”22 	Flying Crown demanded that “ARRC immediately
proclaim, by means of a legally recordable document, that it relinquishes any and all claim
to ‘exclusive use’ of the right-of-way[.]”23 	This ongoing dispute appears to be at least
partially born out of Flying Crown’s displeasure with ARRC’s insistence that the
subdivision obtain a permit to access lands (i.e., the airstrip) encumbered by the ROW.24
According 	to 	Flying Crown, 	many 	homeowners 	have 	purchased homes 	and made
significant alterations to their properties within the Flying Crown subdivision to gain
access to the airstrip, and are concerned about future access.25
On September 21, 2020, in response to Flying Crown’s demand letter, ARRC
filed this action seeking a “judgment quieting title in the ROW crossing defendant’s
19 Docket 13-2 at 2.
20 Docket 85 at 10.
21 Id. at 12.
22 Docket 13 at 10.
23 Id. at 11.
24 Docket 85 at 11–12.
25 Id.
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property and a finding that ARRC’s interest in that ROW includes the entire interest
previously held by the United States federal government, and all rights contained within
the definition of an ‘exclusive use easement’ under 45 U.S.C. § 1202(6).”26 	ARRC
maintains that it cannot continue to operate the railroad safely or efficiently without
clarifying the rights to and retaining authority over its ROW on Flying Crown’s property.27
III. 	LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to grant summary
judgment if the movant “shows that there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of law.”28 When considering a motion for
summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.”29 To present a genuine dispute, the evidence must
be such “that a reasonable jury could return a verdict for the nonmoving party.”30 “A fact
is material if it could affect the outcome of the suit under the governing substantive law.”31
If the evidence provided by the nonmoving party is “merely colorable” or “not significantly
probative,” summary judgment is appropriate.32 Once the moving party has met its initial
burden, the nonmoving party “may not rest upon the mere allegations or denials of the
26 Docket 1 at 10.
27 Id. at 8.
28 Fed. R. Civ. P. 56(a).
29 Moldex-Metric, Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
30 Anderson, 477 U.S. at 248.
31 Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006) (citing Anderson, 477
U.S. at 248).
32 Anderson, 477 U.S. at 249–50.
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adverse party’s pleading,” but must provide evidence that “set[s] forth specific facts
showing that there is a genuine issue for trial.”33 Conclusory allegations will not suffice.34
As a threshold matter, the Court finds that summary judgment is appropriate
in this case. In determining whether to grant or deny summary judgment, a court need not
“scour the record in search of a genuine issue of triable fact.”35 A court is entitled to “rely
on the nonmoving party to identify with reasonable particularity the evidence that
precludes summary judgment.”36 	The Parties agree that the record presents no disputed
issues of material fact.37
IV. 	DISCUSSION
Set to this storied background, the matter before the Court boils down to one
relatively straightforward question: what property interest does ARRC possess in its ROW
that crosses Flying Crown’s property? ARRC posits that it possesses at least an “exclusive-
use interest” in the ROW.38 ARRC requests that this Court grant summary judgment in its
favor, quieting title to the ROW, and finding that “ARRC’s interest in that ROW includes
the entire interest previously held by the United States federal government, and all rights
contained 	within 	the 	definition 	of 	an 	‘exclusive 	use 	easement’ 	under 	45 	U.S.C.
§ 1202(6).”39
33 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (internal citations omitted).
34 See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
35 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotation and citation omitted).
36 Id. (internal quotation and citation omitted).
37 See Dockets 13 at 12; 85 at 5; 86 at 3.
38 Docket 13 at 1.
39 Docket 1 at 10.
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Flying Crown answers that ARRC can possess no more than a “common-law
simple easement” for the purpose of railroad construction and operation.40 Flying Crown
does not dispute that the federal government’s interest in the ROW passed to ARRC under
ARTA.41 It does, however, dispute the nature of the interest that was transferred. The crux
of Flying Crown’s contention is that the federal government reserved a simple easement in
the ROW at the time the 1950 Sperstad Patent was issued, and, therefore, that is the greatest
interest that could be conveyed to ARRC under ARTA. In other words, the United States
could not “lawfully convey a property interest greater than what it actually possessed.”42
Flying Crown requests that this Court grant summary judgment in its favor and find that:
(1) “[t]he 1914 Act right of way reserved across federal lands, as reflected in the Sperstad
Patent, is a common-law simple easement for the purpose of railroad construction and
operation, not an ‘exclusive-use’ or other ‘near-fee’ land interest”; (2) “United States
lacked the legal authority to convey to ARRC, under ARTA, any rights in the Sperstad
Homestead beyond its 1914 Act easement rights, because the United States did not actually
possess broader rights in 1983”; (3) “ARTA did not newly create and grant ARRC an
‘exclusive-use easement’ across the Sperstad Homestead because previously patented
lands do not contain ‘unresolved claims of valid existing rights,’ and thus were not subject
to the new ‘exclusive-use easement’ created for other land categories in ARTA”; and
(4) “[i]f the Court determines that ARTA did convey to ARRC a greater interest than the
40 Docket 85 at 12.
41 Id. at 13.
42 Id.
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common-law easement that the United States possessed in the Sperstad Homestead, this
will constitute an unconstitutional taking of Flying Crown’s property without just
compensation and due process of law.”43 	The Municipality supports Flying Crown’s
position, but describes ARRC’s interest in the ROW as an “easement for railroad
purposes.”44
Resolution to the overarching question of what interest ARRC possesses in
its ROW hinges on two distinct legal issues. 	First, what was the nature of the interest
reserved by the federal government in the ROW when it issued the 1950 Sperstad Patent?
Second, what is the nature of the interest conveyed to ARRC in the ROW pursuant to
ARTA? Each of these questions relies entirely on what property interest Congress intended
to convey in the 1914 Act.
A. 	The Federal Government Reserved at Least an “Exclusive-Use Easement” in
the 1950 Sperstad Patent Pursuant to the 1914 Act.
ARRC asserts that the railway ROW reserved in the 1950 Sperstad patent,
issued pursuant to the 1914 Act, “included rights to exclusive possession and control of all
areas within the ROW.”45 Because the legal scope of a railway ROW is not defined in the
1914 Act, ARRC urges this Court to “(1) look to the meaning of a railroad ‘right-of-way’
as that term was understood at the time of the 1914 Act; and (2) resolve any ambiguities in
favor of the United States as sovereign grantor.”46
43 Docket 84 at 2.
44 Docket 86 at 6.
45 Docket 13 at 12–13.
46 Id. at 14.
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Defendants agree with ARRC that the Court must look to case law to
determine the commonly understood scope of a railroad’s right-of-way. However, Flying
Crown alleges that only cases decided after 1871 are relevant due to a Congressional shift
in policy concerning land grants to railroads after that year.47 Flying Crown maintains that
a railway easement is no different from an easement as understood under the common law,
meaning that it is a nonpossessory interest and entitles the railroad to less than full
control.48
(1) 	Right-of-way as defined in the 1914 Act
At the outset, the Court notes that resolution of this first issue does not require
the Court to precisely define the contours of the interest the federal government reserved
to itself in the 1950 Sperstad Patent. Ultimately, ARRC asks this Court to declare that its
current ROW takes the form of at least an exclusive-use easement as defined in
Section 1202(6) of ARTA.49 	That definition specifies that an “exclusive-use easement”
affords the easement holder:
(A) 	the exclusive right to use, possess, and enjoy the
surface 	estate 	of 	the 	land 	subject 	to 	this 	easement 	for
transportation, communication, and transmission purposes and
for support functions associated with such purposes;
(B) 	the right to use so much of the subsurface estate
of the lands subject to this easement as is necessary for the
transportation, communication, and transmission purposes and
associated support functions for which the surface of such
lands is used;
47 Docket 85 at 16.
48 Id. at 15–16.
49 Docket 1 at 10.
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(C) 	Subjacent and lateral support of the lands subject
to the easement; and
(D) 	The right (in the easement holder’s discretion) to
fence all or part of the lands subject to this easement and to
affix track, fixtures, and structures to such lands and to exclude
other persons from all or part of such lands[.]50
Therefore, the Court need only to determine whether ARRC’s interest in the ROW crossing
Flying Crown’s property gives it the exclusive right to use, possess, and enjoy the surface
estate of the land for the defined purposes and supportive functions.51
Article IV, Section 3, Clause 2 of the United States Constitution gives
Congress the “Power to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United States[.]” 	Therefore, when
Congress grants an interest in property, it may specify terms or elements different from
those that would otherwise apply by virtue of common law. 	Congress enacted both the
1914 Act and ARTA pursuant to this constitutional authority.
Turning to the plain language of the 1914 Act, Congress declared that:
in all patents for lands hereafter taken up, entered, or located
in the Territory of Alaska there shall be expressed that there is
reserved 	to 	the 	United 	States 	a 	right 	of 	way 	for 	the
construction of railroads, telegraph, and telephone lines to the
50 45 U.S.C. § 1202(6).
51 The Municipality of Anchorage spends nearly the entirety of its brief asserting that ARRC’s
interest in the ROW is an “Easement for Railroad Purposes.” See Docket 86 at 6–30. The phrase “railroad
purpose” is derived from “the Supreme Court’s description in Union Pacific of the nature of the rights
acquired under” the pre-1871 Acts and the 1875 Act. Barahona v. Union Pac. R.R. Co., 881 F.3d 1122,
1131 (9th Cir. 2018) (citing to United States v. Union Pac. R.R. Co., 353 U.S. 112, 114 (1957)). However,
the Parties’ cross motions for summary judgment do not contest the purpose and use of ARRC’s ROW
across Flying Crown’s property, or ARRC’s ability to require a lease incident to its use of the ROW for
railroad purposes. It appears that ARRC is utilizing its ROW to operate a functioning railway, a universally
recognized use under the pre-1871 Acts and the 1875 Act. The Court specifically declined to analyze this
aspect of ARRC’s interest in the ROW when it denied ENSTAR’s and MTA’s Motions to Intervene. See
Dockets 59; 60.
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extent of one hundred feet on either side of the center line of
any such road and twenty-five feet on either side of the center
line of any such telegraph or telephone lines.52
Central to this case is the meaning Congress intended to attach to the phrase “right of way”
at the time the statute was enacted. This Court is unaware of any case law squarely defining
the contours of the federal government’s right-of-way under that Act, and therefore looks
to case law interpreting other acts for guidance. Case law distinguishes a railroad right-of-
way, although often characterized as an easement, from a traditional private easement and
recognizes that the term carries an elevated and particularized meaning in this context.53
A “simple easement” generally has been used to describe an interest only in the right to use
another’s land, or an area above or below it, for a particular purpose (such as a right-of-
way);54 while a complete conveyance in all rights associated with the property generally is
described as “fee simple.”55 However, there exists a wide range of interests between the
two terms depending on the exclusivity of the possession, the duration of the interest, and
the completeness of the rights granted. As articulated recently by the Tenth Circuit:
the degree of exclusivity of the rights conferred by an easement
or profit is highly variable. At one extreme, the holder of the
easement or profit has no right to exclude anyone from making
any use that does not unreasonably interfere with the uses
authorized by the servitude. On the other end of the spectrum,
52 Act of March 12, 1914, 38 Stat. 305 (formerly codified at 43 U.S.C. § 975, et seq.) (“1914
Act”), repealed by Alaska Railroad Transfer Act, Pub. L. 97-468, Title VI, § 615(a)(1), 96 Stat. 2556, 2577–
78 (1983) (emphasis added).
53 See e.g., Western Union Telegraph Co. v. Pennsylvania R.R. Co., 195 U.S. 540, 570 (1904).
54 Under R ESTATEMENT (THIRD) OF P ROPERTY: S ERVITUDES § 1.2(1) (Am. Law Inst. 2000), an
easement is a “nonpossessory right to enter and use land in the possession of another and obligates the
possessor not to interfere with the uses authorized by the easement.” See also B LACK ’S LAW DICTIONARY
(11th ed. 2019) (defining an easement as “[a]n interest in land owned by another person, consisting in the
right to use or control the land, or an area above or below it, for a specific limited purpose.”).
55 See B LACK ’S LAW DICTIONARY (11th ed. 2019) (defining fee simple as “the broadest property
interest allowed by law”).
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the holder of the easement or profit has the right to exclude
everyone, including the servient owner, from making any use
of the land within the easement boundaries.56
A railroad’s right-of-way historically has leaned closer to the latter. 	In Western Union
Telegraph Company v. Pennsylvania Railroad Company, the Supreme Court held that
[a] railroad right of way is a very substantial thing. It is more
than a mere right of passage. It is more than an easement. . . .
[I]f a railroad’s right-of-way was an easement it was one
having the attributes of the fee, perpetuity and exclusive use
and possession. . . . A railroad’s right of way has, therefore, the
substantiality of the fee, and it is private property, even to the
public, in all else but an interest and benefit in its uses.57
The Supreme Court also has been careful to note that the terminology used between courts
is less important than the actual property rights and interests described.58
Flying Crown agrees that “[w]hen the United States first began supporting
railroads with land dedications, it legislatively granted public land in fee to the railroads.”59
However, citing to Great Northern Railway Company v. United States,60 it argues that this
practice ended in 1871 and railroads thereafter were granted simple common law
easements. In Great Northern, the Supreme Court was asked to rule on the narrow question
56 LKL Assocs., Inc. v. Union Pac. R.R. Co., 17 F.4th 1287, 1295 (10th Cir. 2021) (quoting
R ESTATEMENT (THIRD) OF P ROPERTY: S ERVITUDES § 1.2 cmt. c (Am. Law Inst. 2000)) (internal quotations
omitted).57 Western Union, 195 U.S. 540, 570 (1904) (internal quotation and citation omitted).
58 See New Mexico v. U.S. Trust Co. of New York, 172 U.S. 171, 183 (1898) (“the right acquired
by the railroad company, though technically an easement, yet requires for its enjoyment a use of the land
permanent in its nature and practically exclusive.”) (internal quotation omitted); see also Marvin M. Brandt
Revocable Trust v. United States, 572 U.S. 93, 114 (2014) (“federal and state decisions in this area have
not historically depended on ‘basic common law principles.’ To the contrary, this Court and others have
long recognized that in the context of railroad rights of way, traditional property terms like ‘fee’ and
‘easement’ do not neatly track common-law definitions.”) (Sotomayor, J., dissenting).
59 Docket 85 at 16.
60 315 U.S. 262, 271 (1942).
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of whether the Great Northern Railway Company possessed oil and mineral rights
underlying its right-of-way acquired pursuant to the Act of March 3, 1875, also known as
the General Railroad Right-of-Way Act (“1875 Act”).61 The 1875 Act provided that “[t]he
right of way through the public lands of the United States is granted to any railroad
company” meeting certain requirements.62 To claim its right-of-way, a railway company
was expected to file a proposed map of its rail corridor with a local Department of Interior
office, and, upon approval, “all such lands over which such right of way shall pass shall be
disposed of subject to the right of way.”63 	Analyzing the “language of the Act, its
legislative history, its early administrative interpretation, and the construction placed upon
it by Congress in subsequent enactments[,]” the Supreme Court ruled that the 1875 Act
“clearly grant[ed] only an easement, and not a fee” to the Great Northern Railway
Company.64 Reconciling Congress’s clear intent to grant land in fee simple to the railroads
prior to 1871, the Court observed that “[a]fter 1871 outright grants of public lands to private
railroad companies seem to have been discontinued.”65 The Supreme Court also noted that
any ambiguity in a grant should be resolved favorably to the sovereign grantor and went
on to find that there was nothing in the statute which clearly and explicitly conveyed
mineral rights to the railway companies.66 The United States therefore retained control of
subsurface mineral rights.
61 Great Northern Ry. Co. v. United States, 315 U.S. 262, 270 (1942).
62 43 U.S.C. § 934.
63 Id. at § 937.
64 Great Northern, 315 U.S. at 277, 271.
65 Id. at 274.
66 Id. at 272, 276–77.
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The Supreme Court had chance again to interpret the scope of a railroad’s
right-of-way under the 1875 Act in Marvin M. Brandt Revocable Trust v. United States.67
This time, the Supreme Court grappled with the question of who possesses the rights to
underlying minerals when a railroad abandons its right-of-way: 	the federal government,
or the landowner?68 The federal government argued that the abandoned railway right-of-
way at issue was “tantamount to a limited fee with an implied reversionary interest,”69 and
therefore “vested in the United States when the right of way was relinquished.”70 Relying
heavily 	on 	its 	decision 	in 	Great 	Northern, 	the 	Court 	rejected 	the 	government’s
characterization and found that the right-of-way was an easement which terminated upon
the railroad’s abandonment, leaving the landowner’s property unburdened.71 The Supreme
Court again explicitly found that cases describing rights-of-way granted prior to 1871 were
not controlling due to a major shift in Congressional policy concerning land grants to
railroads after that year.72 	This interpretation entitled landowners to the mineral rights
upon abandonment of the right-of-way.
Flying Crown asks this Court to adopt a simplistic view of the case law and
find that, based on the Supreme Court’s ruling in Brandt, the United States cannot reserve
more than a common law simple easement in a railroad right-of-way under any statute
enacted after 1871. But Brandt does not demand this result. While it is true that the 1875
67 572 U.S. 93 (2014).
68 Id. at 102–03.
69 Id. at 110.
70 Id. at 102.
71 Id. at 110.
72 Id. at 107.
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Act unquestionably granted an easement to a qualifying railroad in its right-of-way, rather
than an interest in fee simple, the Supreme Court in Brandt left unresolved the degree of
exclusivity the easement grants the railroad in its right-of-way.73
Although not binding on this Court, the Tenth Circuit’s decision in LKL
Associates., Inc., v. Union Pacific Railroad Co.74 is illustrative to the question of easement
exclusivity left open in Brandt.75 	In LKL, plaintiff Union Pacific Railroad Company
(“Union Pacific”) charged the defendants rent under a lease that allowed the defendants to
continue operating a business on land owned in fee simple, but encumbered by the
railroad’s right-of-way pursuant to the 1875 Act.76 	After the Supreme Court declared in
Brandt that a railroad’s right-of-way under the 1875 Act is a “nonpossessory” easement,
the defendants filed suit to have their leases rescinded and restitution for past rents paid,
among other declaratory relief.77 	Recognizing that this case dealt primarily with surface
level rights, rather than mineral rights, the Tenth Circuit first analyzed “whether a railroad’s
1875 Act right of way includes the right to exclude others.”78 	After affirming the
73 See LKL Assocs., Inc. v. Union Pac. R.R. Co., 17 F.4th 1287, 1295 (10th Cir. 2021) (“The Court
in Brandt also used common law principles to define the essential features of an easement—mainly, that it
is a ‘nonpossessory right to enter and use and in the possession of another and obligates the possessor not
to interfere with the uses authorized by the easement.’ 	But the Court left unresolved the degree of
exclusivity this right of way affords the grantee.”) (internal citations omitted).
74 17 F.4th 1287, 1295 (10th Cir. 2021).
75 The Parties agree that LKL is factually akin to the dispute between ARRC and Flying Crown.
See Dockets 85 at 18; 115 at 1.
76 See LKL, 17 F.4th at 1291.
77 Id. Flying Crown similarly argues that because an easement is by nature “nonpossessory,” it
cannot be “exclusive-use,” because exclusive-use implies “full control.” Docket 85 at 15–16. However,
ARRC agrees that its interest is nonpossessory. 	See Docket 91-1 at 5. 	Nonpossessory is an irrelevant
characterization in this context because a nonpossessory interest such as a right-of-way can certainly
include the right to exclude even the servient owner from using the land. See R ESTATEMENT (THIRD) OF
P ROPERTY: S ERVITUDES § 1.2(1) (Am. Law Inst. 2000).
78 LKL, 17 F.4th at 1294.
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undisputed fact that the 1875 Act “grants only an easement and not a fee interest,” the court
then found that this did not preclude a nonpossessory easement from providing a grantee
with exclusivity.79 	In other words, “[a]s long as the grantor has not ‘clearly and
unequivocally relinquished all interest in the subject area,’ courts can certainly find that an
exclusive easement is not a fee.”80 The court ultimately determined that Union Pacific had
the right to exclude defendants from its property pursuant to its right-of-way under the
1875 Act, in congruence with Great Northern and Brandt, because “[a] railroad easement
is exclusive in character.”81
This Court agrees with the Tenth Circuit’s observation that Brandt is not
particularly illustrative to determining the surface level exclusivity of a railroad’s right-of-
way.82 Where it was principally concerned with the rights to the underlying minerals, the
Supreme Court in Brandt had no occasion to determine whether the federal government
could exclude all parties from the surface. It is hard to imagine that an operational railroad
would not possess this stick in the bundle, especially in a residential area such as the Flying
Crown Subdivision where residents actively use the land burdened by the ROW and safety
is of the utmost concern. As described supra, ARRC does not ask this Court to determine
who possesses the rights to underlying mineral resources or the disposition of its interests
upon abandonment. Nor does ARRC request that this Court declare its current interest in
79 Id. at 1295.
80 Id. at 1296–97 (citing Jon W. Bruce & James W. Ely, Jr., T HE LAW OF EASEMENTS & LICENSES
IN LAND § 1:28 (2019)).
81 Id. at 1297.
82 See id. at 1295.
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the ROW is held in fee simple.83 Although the Court finds that Brandt is not necessarily
inapposite to this case, it does find that Brandt is of limited import in determining whether
the federal government’s interest in the ROW was at least an exclusive-use easement
pursuant to the 1914 Act.
This Court also must recognize the stark differences between the 1875 Act
and the 1914 Act, including the circumstances leading to their enactments. First, the 1875
Act reserved a right-of-way to qualifying private railroad companies, while the 1914 Act
specifically reserved the ROW to the federal government.84 Indeed, the Ninth Circuit noted
in 1971 that the federal Alaska Railroad was the only railroad in the United States wholly
owned and operated by the federal government.85 	Other courts have recognized this
disparity and refused to find the two statutes comparable on this basis alone.86
Second, the development of a railway in the Alaska Territory was unlike any
other infrastructure endeavor in the continental United States. 	At its inception, many
private railroad companies attempted and failed to establish a functional railway system in
83 See Docket 1 at 10. 	ARRC’s position is that the federal government reserved “a ROW
equivalent to the type of ‘limited fee’ described in N. Pac. Ry. Co. v. Townsend, 190 U.S. 267, 271 (1903),”
in the 1950 Sperstad Patent. Docket 13 at 14. Indeed, the Court notes that subsequent legislative history,
Congressional remarks, and the historical underpinnings of the Alaska railroad, discussed infra, support a
finding that the federal government intended to reserve its ROW in fee simple, pursuant to the 1914 Act.
However, the Court need only determine that ARRC’s current interest in the ROW is at least paramount to
an “exclusive-use easement,” as defined by ARTA, which only specifies exclusive rights to the surface and
subsurface rights as necessary to support surface uses. The Court therefore declines to consider whether
the federal government’s interest in the 1950 Sperstad Patent was reserved in fee simple.
84 Compare 43 U.S.C. § 934 with 1914 Act § 1.
85 United States v. City of Anchorage, State of Alaska, 437 F.2d 1081, 1082 (9th Cir. 1971).
86 See, e.g., King Cnty. v. Abernathy, No. C20-0060-RAJ-SKV, 2021 WL 3472379, *6 n.6 (W.D.
Wash. July 26, 2021) (“The [1914 Act] likewise authorized the President to ‘perform any and all acts in
addition to those specifically set out in the statutory language which were necessary to accomplish the
purposes and declared objects of the Act.’ . . . No such language exists in the 1875 Act.”).
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the Territory of Alaska. The Ninth Circuit has recognized that “[a]t the time of the passage
of the [1914] Act . . . the interior of Alaska was, for most purposes, completely isolated
from the outside world. 	The construction of a railroad was absolutely essential to the
development of the interior.”87 	The Ninth Circuit even went as far as to describe the
establishment of the federal Alaska Railroad as a “public exigency” and found that the
1914 Act unquestionably reserved lands under navigable waters in fee to the United
States.88 	Given the importance of the federal Alaska Railroad to the development of the
Territory, and its unique nature as a railway owned exclusively by a sovereign, the Court
can only rely on case law interpreting the contours of the 1875 Act so much.
In this case, the Court finds that Congress’s interpretation of the 1914 Act in
subsequent enactments is more persuasive than case law exclusively interpreting the 1875
Act. 	In Great Northern, on which Brandt heavily relies, the Supreme Court found “it is
settled that ‘subsequent legislation may be considered to assist in the interpretation of prior
legislation upon the same subject.’”89 	As discussed infra in Section IV.B. of this Order,
the Senate Committee on Commerce, Science, and Transportation concluded that the
subsequently enacted ARTA
would convey to the State a fee interest in the 200-foot strip
comprising 	the 	railroad 	track 	right-of-way, 	amounting 	to
roughly 12,000 acres. 	This fee estate is recognized by the
Committee to be the current interest of the Alaska Railroad
derived from common practice and authorized under section 1
of the March 12, 1914 Alaska Railroad Act.90
87 City of Anchorage, 437 F.2d at 1084.
88 Id. at 1085.
89 Great Northern, 315 U.S. at 277 (citing to Tiger v. W. Inv. Co., 221 U.S. 286, 309 (1911)).
90 S. Rep. No. 97-479, at 8 (1982) (emphasis added).
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The Committee further explained that “[t]he reported bill . . . ensures conveyance of the
track right-of-way in fee so that the State can continue to operate the railroad.”91 Congress
in 1982 thus interpreted the 1914 Act as reserving the federal government’s ROW in fee
simple. Although the Supreme Court in Brandt cautioned against relying on the views of
a subsequent Congress in interpreting the intent of an earlier one, that remark referred to
statutes that did not speak directly to the issue at hand.92 	It is difficult for this Court to
simply ignore the statements of Congress directly relating to its intent in enacting ARTA
and in pari materia with the 1914 Act.93
(2) 	Resolution of ambiguities
Where land grants are ambiguous, such ambiguity must be resolved in favor
of the sovereign grantor.94 	Further, “nothing passes but what is conveyed in clear and
explicit language.”95 	Flying Crown argues that there is no ambiguity in the 1914 Act or
the ROW reservation pursuant to that Act, and therefore this canon of construction is
irrelevant.96 The Court disagrees. A “right-of-way,” especially in the context of a railway,
without further delineation of rights, is an inherently ambiguous term in property law. The
91 Id.
92 Brandt, 572 U.S. at 109.
93 See United States v. Freeman, 44 U.S. 556, 564–65 (1845) (“If a thing contained in a subsequent
statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute; if
it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the
words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the
construction of the first statute.”) (internal citations omitted).
94 Great Northern Ry. Co. v. United States, 315 U.S. 262, 272 (1942) (“[t]he Act is also subject to
the general rule of construction that any ambiguity in a grant is to be resolved favorably to a sovereign
grantor”); United States v. Union Pac. R.R. Co., 353 U.S. 112, 116 (1957) (“[L]and grants are construed
favorably to the Government . . . if there are doubts they are resolved for the Government, not against it.”).
95 Great Northern, 315 U.S. at 272 (quoting Caldwell v. United States, 250 U.S. 14, 20 (1919)).
96 Docket 85 at 23. The Municipality also argues that ARTA is unambiguous, but agrees that all
ambiguity must be resolved in favor of the sovereign grantor. Docket 86 at 7.
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Parties and this Court have gone to great lengths to parse legislative history and case law
to decipher the meaning Congress intended to attach to the phrase “right-of-way” in the
1914 Act, as that phrase is not defined within the statute. Further, the federal government
did not clearly or explicitly give away its interest in the exclusive occupancy and use of the
ROW in the 1950 Sperstad Patent. Therefore, even if Flying Crown could argue that the
Brandt decision is persuasive, this Court still would find that the latent ambiguity in the
1950 Sperstad Patent must be resolved in favor of the federal government.
In summary, based on the unique circumstances facing railroad companies
in 	constructing 	the 	Alaskan 	railroad, 	the 	interpretation 	of 	Congress 	in 	subsequent
enactments, and the well-settled principle that uncertainty in a land grant from a sovereign
grantor must be resolved in favor of that grantor, this Court finds that the federal
government reserved at least an exclusive-use easement, as defined by ARTA, in its ROW
in the 1950 Sperstad Patent pursuant to the 1914 Act.
(B) 	ARRC Received at Least an “Exclusive-Use” Easement in the ROW Pursuant
to ARTA
Finding that the federal government reserved at least an exclusive-use
easement in the 1950 Sperstad Patent pursuant to the 1914 Act, the Court now must
determine what interest was transferred to ARRC pursuant to ARTA, first via interim
conveyance, and later via the 2006 Patent. 	The Court engages in the same analysis to
determine the scope of that interest and looks to the plain language and legislative history
of ARTA.
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In unanimously reporting S. 1500, the Senate Committee on Commerce,
Science, and Transportation declared that the bill, as amended, would “facilitate the
transfer of the railroad lands [to the State] by providing for the conveyance of the track
right-of-way in fee and an expedited process for adjudicating Native and other third party
claims of valid existing rights to other railroad lands.”97 	Taking into account the variety
of 	claims 	that 	might 	arise, 	Congress 	identified 	four 	categories 	of 	conveyances 	in
section 1203(b)(1) of ARTA: 	(A) “all rail properties of the Alaska Railroad except any
interest in real property” to be delivered by bill of sale to the State; (B) “all rail properties
of the Alaska Railroad that are not conveyed pursuant to subparagraph (A) of this
paragraph and are not subject to unresolved claims of valid existing rights” to be delivered
to the State via interim conveyance; (C) “all rail properties of the Alaska Railroad not
conveyed pursuant to subparagraphs (A) or (B) of this paragraph pending conveyances in
accordance with the review and settlement or final administrative adjudication of claims of
valid existing rights” to be delivered to the State via an exclusive license; and (D) “an
exclusive-use easement for that portion of the right-of-way of the Alaska Railroad within
the Denali National Park and Preserve” to be conveyed to the State via deed.98
The Parties appear to agree that the 1950 Sperstad Patent was transferred to
the State pursuant to section 1203(b)(1)(B) because it was transferred via interim
97 S. Rep. No. 97-479, at 1 (1982).
98 45 U.S.C. § 1203(b)(1)(A)-(D).
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conveyance and not subject to any unresolved claims.99 	Referring specifically to that
subsection in section 1205(b)(4)(B), ARTA states
[w]here lands within the right-of-way, or any interest in such
lands, have been conveyed from Federal ownership prior to
January 14, 1983, or is subject to a claim of valid existing rights
by a party other than a Village Corporation, the conveyance to
the State of the Federal interest in such properties pursuant to
section 1203(b)(1)(B) or (2) of this title shall grant not less
than an exclusive-use easement in such properties.100
Mr. Sperstad was granted the patent to the Sperstad Homestead in 1950, well before
January 1983. 	A simple reading of ARTA plainly indicates that Congress authorized the
transfer of its interest in the ROW, as reserved in the 1950 Sperstad Patent, from federal
ownership to ARRC. 	ARTA is clear that such interest shall not be less an exclusive-use
easement. 	ARRC therefore maintains an exclusive-use easement in the ROW crossing
Flying Crown’s property.
The Court’s reading is bolstered by subsequent administrative interpretations
of ARTA. 	Though not binding, the Court finds the Interior Board of Land Appeals’
(“IBLA”) interpretation of ARTA in Peter Slaiby & Rejani Slaiby (“Slaiby”) to be
persuasive.101 	In Slaiby, two landowners appealed the Bureau of Land Management’s
decision allowing the Secretary of Transportation to grant a patent to ARRC for an
99 See Dockets 85 at 29–30; 13 at 10; 86 at 21.
100 45 U.S.C. § 1205(b)(4)(B) (emphasis added). Flying Crown argues that ARRC interprets this
section to mean that “for all properties transferred under ARTA, regardless of which category they are in
or what their title history includes, ARRC received a near-fee interest in an exclusive-use easement, or the
full fee interest.” Docket 85 at 37. But the Court focuses this Order only on those interim conveyances
made pursuant to section 1203(b)(1)(B), which includes the 1950 Sperstad Patent. It makes no observation
concerning the remaining transfer mechanisms.
101 186 IBLA 143 (2015).
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exclusive-use easement over their property adjacent to a portion of ARRC’s ROW.102 The
original landowner was granted a patent for 150 acres of land in 1950.103 However, after
the Good Friday 1964 earthquake, railway trackage needed revision and realignment.104
Pursuant to that process, in 1965, the federal Alaska Railroad purchased several parcels of
land from the original landowner as well as a “perpetual right of way and easement [ROW]
to construct, reconstruct, operate and maintain a railroad line and appurtenances.”105 The
Slaibys later acquired a home on the parcels encumbered by the federal Alaska Railroad’s
ROW. Counsel for ARRC represented that the ROW had not yet been conveyed pursuant
to ARTA and was still owned by the federal government.106 The Slaibys claimed that the
interest acquired by the federal government in 1965 was a “limited easement” and urged
the Bureau of Land Management not to grant an exclusive-use easement.107 	Finding the
language of ARTA clear, the IBLA determined that where the landowners’ property was
“conveyed out of Federal ownership prior to January 14, 1983, the U.S. Secretary of
Transportation ‘shall not grant less than an exclusive-use easement in such properties [to
ARRC].’”108 In ruling for ARRC, the IBLA interpreted ARTA in the same way the Court
does in this case.
Flying Crown’s interpretation of ARTA requires this Court to find that “the
exclusive-use easement requirement” contained in section 1205(b)(4)(B) does not apply to
102 Id. at 146.
103 Id.
104 Id.
105 Id. (alterations in original).
106 Id.
107 Id.
108 186 IBLA at 148 (quoting 45 U.S.C. § 1205(b)(4)(B)) (alteration in original).
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the ROW reserved in the 1950 Sperstad Patent.109 	This is difficult where the text of
section 1205(b)(4)(B) specifically cites its applicability to interim conveyances made
pursuant to section 1203(b)(1)(B), under which Flying Crown states the 1950 Sperstad
Patent 	was 	transferred. 	Flying 	Crown 	acknowledges 	this, 	but 	it 	argues 	that
section 1205(b)(4)(B) of ARTA only applies to “such claims to federally-owned land that
remained unresolved at ARTA’s enactment” because section 1205(b) broadly specifies
adjudicatory procedures and, significantly, includes the phrase “unresolved claims of valid
existing rights.”110 Because the federal government’s ROW was contained in a patent, it
was resolved, and therefore section 1205(b)(4)(B) does not apply.111
For this reading to make sense, Flying Crown requires us to find that “as to
patented lands . . . all provisions in ARTA that involve the procedures and the requirements
for the Secretary to resolve ‘claims of valid existing rights’ simply have no applicability”
because “there are no remaining ‘unresolved claims’ to patented lands.”112 In other words,
the Court must determine that Congress committed a massive drafting error. First, ARTA
specifically defines a “claim of valid existing rights” as “any claim to the rail properties of
109 Docket 85 at 33.
110 Id. at 34 (emphasis in original).
111 Id. at 36.
112 Id. Flying Crown appears to base its argument, in part, on the fact that section 1205(b)(4)(B)
is found under the subtitle “Review and settlement of claims; administrative adjudication process;
management of lands; procedures applicable.” 45 U.S.C. § 1205(b). However, section 1205 is broadly
entitled “Lands to be Transferred.” 	A “review and settlement process” is specifically identified in
subsection (1)(A); however, subsection (B) stands apart. See 45 U.S.C. § 1205(b)(2) (“Upon completion
of the review and settlement process required by paragraph (1)(A) of this subsection . . . .). Section 1205(4),
which states the purposes of subsections (1)(A) and (B), clarifies that in addition to providing adjudicatory
procedures, these subsections are meant to “avoid potential impairment of railroad operations resulting
from joint or divided ownership in substantial segments of right-of-way.” Id. at § 1205(4).
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the Alaska Railroad on record in the Department of the Interior as of January 13, 1983.”113
If Congress intended for this definition to apply only to unresolved claims, it would have
said so, as it does in other places in the statute.114 Further, Flying Crown cherry-picks its
conclusion that section 1205(b)(4)(B) only applies to “claim[s] of valid existing rights,” by
ignoring the first half of that subsection, which states that the exclusive-use easement also
applies to “lands within the right-of-way, or any interest in such lands, [that has] been
conveyed from Federal ownership prior to January 14, 1983, or is subject to a claim of
valid existing rights[.]”115 	The Court declines to divine a contrary Congressional intent
from the statute where the plain language suggests a clear application.
Even assuming, arguendo, Flying Crown is correct that the exclusive-use
easement mandate contained in section 1205(b)(4)(B) does not apply to the 1950 Sperstad
Patent, it is irrelevant to ARRC’s interests in the ROW at issue in this case. This is because
regardless of the Court’s interpretation of ARTA, both Parties still agree that ARTA
conveyed precisely the interest that was reserved by the federal government pursuant to the
1914 Act.116 	This Court already has determined that the federal government reserved at
least an exclusive-use easement in the ROW pursuant to that Act. It therefore follows that
its entire interest was transferred to ARRC under ARTA.117
113 45 U.S.C. § 1202(3).
114 See, e.g., 45 U.S.C. § 1203(b)(1)(B).
115 45 U.S.C. § 1205(b)(4)(B) (emphasis added).
116 See Dockets 91-1 at 14–15; 85 at 30.
117 Flying Crown also asserts that ARRC’s interpretation of ARTA is barred by the canon of
constitutional avoidance because “it would require the Court to find that ARTA effectuated an
unconstitutional taking by giving ARRC greater rights over Flying Crown’s property than the federal
government actually possessed.” Docket 85 at 27. This argument is circular. To determine there was an
unconstitutional taking, the Court first would need to adopt Flying Crown’s interpretation of ARTA. The
Court expressly rejects that interpretation and therefore does not address this argument any further.
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The Court’s determinations that (1) the United States reserved at least an
exclusive-use easement in its right-of-way in the 1950 Sperstad Patent, and (2) this entire
interest was transferred to ARRC pursuant to ARTA and perfected in the 2006 Patent, and
forecloses the remainder the of Flying Crown’s assertions in its Cross Motion for Summary
Judgment. 	Premised on its claim that the United States reserved a common law simple
easement in the ROW and therefore could not convey the full panoply of rights articulated
under ARTA to ARRC, Flying Crown argues that it is entitled to compensation under the
Fifth Amendment of the United States Constitution.118 The Court has determined that the
United States did not transfer an expanded interest to ARRC upon enactment of ARTA.
Accordingly, there is no taking, and Flying Crown’s constitutional claim fails.
V. 	CONCLUSION
The Court finds that ARRC possesses the interest to at least an exclusive-use
easement, as defined by ARTA, in its ROW crossing Flying Crown’s property, reserved in
Federal Patent 50-2006-0363. 	Based on the foregoing, ARRC’s Motion for Summary
Judgment at Docket 13 is GRANTED. 	Flying Crown’s Cross Motion for Summary
Judgment at Docket 84 is DENIED without prejudice.
IT IS SO ORDERED this 10th day of March, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
118 Docket 85 at 44–45.
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