Federal Land Use Law & Litigation


Federal Land Use Law & Litigation


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This 2014 edition covers several important recent developments in this field. These include:

The Supreme Court’s ruling in Brandt Revocable Trust et al v. United States, which involved the general question of whether the federal government retains a reversionary interest in a railroad’s right-of-way granted under the General Railroad Right–of–Way Act of 1875. The issue had led to a split among the federal circuits. The Court concluded the right-of-way granted to the railroad under the 1875 Act was an easement. Thus, when a railroad abandoned the right-of-way, the underlying land became unburdened of the easement. The Brandt Revocable Trust decision has potential relevance to the Rails-to-Trails Act which authorizes the conversion of abandoned railroad rights-of-way into recreational trails as can be seen from Justice Sotomayor’s dissent which predicted that the decision will lead to lawsuits challenging the conversion of former railbeds to recreational trails.

The Court’s grant of cert in Reed v. Town of Gilbert, involving a church’s challenge to sign regulations in Gilbert, Arizona that the church claims disfavor its temporary directional signs based on their content. We note that the decision in Reed will likely resolve a split in the federal Circuit Courts of Appeal as to the correct view of what comprises content-based, as opposed to content-neutral, sign regulations.

The Court’s decision in Utility Air Regulatory Group v U.S. EPA to strike down EPA’s efforts to regulate greenhouse gases (GHGs) emitted from stationary sources. The Court held that while its 2007 decision in Massachusetts v. EPA decision affirmed EPA’s ability to regulate GHG emissions as “air pollutants,” the decision did not necessarily apply to the specific category of air pollutants regulated by the “Prevention of Significant Deterioration” (PDS) provisions under the Clean Air Act (CAA). The Court found that EPA’s 2010 “Tailoring Rule” providing for a phased implementation of GHG permitting requirements based on source emission levels, was an impermissible interpretation of its authority under the CAA, because it would “bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.”



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Land Use, Litigation


Land Use Law | Law | Litigation

Federal Land Use Law & Litigation