In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1348

SAMUEL C. JOHNSON 1988 TRUST, et al.,

Plaintiffs-Appellees,

v.

BAYFIELD COUNTY, WISCONSIN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06-C-348-S—John C. Shabaz, Judge.

____________

ARGUED NOVEMBER 8, 2007—DECIDED APRIL 2, 2008

____________

BeforeEASTERBROOK,Chief Judge, andFLAUM and KANNE,

Circuit Judges.

FLAUM, Circuit Judge. At issue in this lawsuit are

Bayfield County’s (“the County”) ongoing efforts to

convert unused railway lines in the County into snowmobile trails. As the legal basis for its plans, the County

alleges that the United States retains a reversionary interest in these railroad right-of-ways and that Congress has

established that, pursuant to this reversionary interest, if

the railway lines are formally abandoned, local governments are then provided with a one-year window with
2 No. 07-1348

which to establish a public highway if they so choose. 43

U.S.C. § 912; 16 U.S.C. § 1248(c). Local landowners

(“Landowners”), who have been using these old railway

lines as their own, took preemptive measures and filed a

quiet title action seeking declaratory relief against the

County and the United States, claiming that the United

States had not retained a reversionary interest over these

particular railway lines, and, in the alternative, that the

land had vested in the Landowners because the one-year

period from the date of abandonment had already lapsed.

The district court never made a determination on these

claims. Instead, the United States filed a Disclaimer of

Interest in the property. See 28 U.S.C. § 2409a(e). The

district court then determined that, even assuming that

the United States retained a reversionary interest and the

railway lines had not been abandoned, the Disclaimer

of Interest had the same effect as eliminating the United

States’s reversionary interest, which the court classified

as a necessary predicate for the County to have any interest in the railway lines. Accordingly, the district court

found for the Landowners. For the following reasons,

however, we vacate the grant of summary judgment for

the Landowners, vacate the quiet title finding in the

Landowners’ favor, and remand for further proceedings.

I. Background

A. Grants to the Railroads

In the 1850’s and 1860’s, Congress passed a series of

laws granting tracts of land and right-of-ways for purposes of constructing railway lines. Particularly relevant

to this case are Acts enacted on August 4, 1852; June 3,

1856; and May 5, 1864. See ch. 80, 10 Stat. 28, 28-29 (1852);

ch. 43, 11 Stat. 20, 20-21 (1856); and ch. 80, 13 Stat. 66, 66-68
No. 07-1348 3

(1864). The parties agree that the railroad’s property

interest in the railway line traversing the property owned

by Samuel C. Johnson 1988 Trust and Imogene P. Johnson

(“SC Johnsons”) was originally acquired by the railroad

via the 1856 and 1864 Acts. This is because those Acts

governed odd numbered sections of property, which

would include the SC Johnsons’ land, located at Section 21,

Township 44 North, Range 7 West in Bayport County. The

parties are in disagreement, however, as to whether the

United States maintained a reversionary interest in this

land. According to the Landowners, the 1856 and 1864

Acts vested the title of fee simple absolute with the State

of Wisconsin, which then in turn transferred this full

property interest to the railroad companies. See 1874 Wis.

Sess. Laws ch. 126, § 1. The County, however, argues

that the Western District of Wisconsin and this Court

have already found that the United States retained a

reversionary interest in odd-numbered sections of Bayfield County granted to the State of Wisconsin for the

purpose of constructing railroads under the 1856 and 1864

Acts. Mauler v. Bayfield County, 204 F. Supp. 2d 1168, 1176

(W.D. Wis. 2001); Mauler v. Bayfield County, 309 F.3d 997,

1001 (7th Cir. 2002).

Also in dispute is the United States’s reversionary

interest in the parcels of land owned by John and Kay

Hawksford (“Hawksfords”) and Dean and Kathryn

Johnson (“DK Johnsons”), which lie in an even section—specifically, Government Lot 2 of Section 32, Township 44 North, Range 7 West, in Bayfield County. According to the Landowners, railroads seeking rights of way

in even-numbered sections generally obtained this interest through private conveyance or condemnation on a

parcel-by-parcel basis. With respect to the property in

Section 32, the Landowners maintain that a private home-
4 No. 07-1348

steader initially acquired title to the property in 1882 by

patent from the United States, without the United States

retaining any reversionary interest. Approximately

seven months later, the state condemned a portion of this

property, completely outside any federal land grant

program.

The County disagrees with the Landowners’ characterization of the property interest over the railway line in

Section 32. The Act of 1852 granted a right-of-way to

railways “charted within ten years hereafter” on the United

States’s public lands, with construction then needing to

be completed within the next fifteen years. Ch. 80, § 1, 10

Stat. 28 (1852). The County maintains that the railway line in Section 32 is covered by this Act because,

even though construction on the line did not begin until

the mid-1870’s, the railroad filed a map with the Land

Office in 1858 that showed the intended railway line. The

County argues that court decisions have not required

railroads to have strictly complied with statutorily imposed time limits, and that thus, with the Act of 1852

applying here, the United States retained a reversionary

interest in the property. According to the County, the

1882 land grant to the homesteader and subsequent

state condemnation proceeding did not affect the United

States’s reversionary interest in the railway line.

B. Congress’s Scheme for the United States’s Reversionary Interests

The basis for finding that the United States holds a

reversionary interest in the railway lines can be traced back

to a 1903 Supreme Court decision, where the Court characterized railroad grants as a “limited fee, made on an

implied condition of reverter in the event that the com-
No. 07-1348 5

1 The full text of 43 U.S.C. § 912 provides:

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, except lands within a municipality the

title to which, upon forfeiture or abandonment, as herein

(continued...)

pany ceased to use or retain the land for the purpose for

which it was granted.” Mauler, 309 F.3d at 1001 (quoting

Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271

(1903)). Subsequently, in 1922, Congress passed the Abandoned Railroad Right of Way Act, 43 U.S.C. § 912,

which addressed how Congress wished to dispose of its

reversionary interest. Id., at 999. Section 912 provided

that when a railway line was declared abandoned by

a proper court or by Congress, the United States’s reversionary interest would vest in the adjacent landowner,

unless the abandoned line was converted into a public

highway within one year of the declaration of abandonment. 43 U.S.C. § 912.1

 At approximately the same time,
6 No. 07-1348

1 (...continued)

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. . . .

2 This statute, 43 U.S.C. § 913, reads in full:

All railroad companies to which grants for rights of way

through the public lands have been made by Congress,

or their successors in interest or assigns, are hereby authorized to convey to any State, county, or municipality any

portion of such right of way to be used as a public highway or street: Provided, That no such conveyance shall

have the effect to diminish the right of way of such railroad company to a less width than fifty feet on each side

of the center of the main tract of the railroad as now established and maintained.

3 The full text of this amendment, 16 U.S.C. § 1248(c), reads:

Commencing upon the date of enactment of this subsection [enacted Oct. 4, 1988], any and all right, title, interest,

and estate of the United States in all rights-of-way of the

type described in the Act of March 8, 1922 (43 U.S.C. 912),

(continued...)

Congress also passed another law permitting the railroads to sell their right of way to state or local governments to establish public highways.2

 Pub. L. No. 66-217,

41 Stat. 621 (enacted in 1920, codified at 43 U.S.C. § 913).

In an effort to preserve these abandoned railway lines

for use as trails, Congress amended § 912 in 1988. 16 U.S.C.

§ 1248(c). Under this amendment, abandoned railway

lines would no longer pass to the adjacent landowner,

but instead the United States would retain title to the

property, provided again that the line was not converted

to a public highway within one year of a determination

of abandonment.3 Id.
No. 07-1348 7

3 (...continued)

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 Act.

4 The Landowners offer various theories as to why this is the

case, including: 1) that the ICC’s 1978 Certificate and Order

operated as an Act of Congress; 2) that the decision in State

v. Holmgren, 332 N.W.2d 311 (Wis. Ct. App. 1983), holding that

(continued...)

C. Dissolution of the Railway Line

In addition to disputing whether the United States

maintained a reversionary interest in these railway lines,

the County and the Landowners also dispute whether

the railway lines have already been abandoned in accord

with § 912 and § 1248(c). In 1974, the Chicago & North

Western Transportation Company filed a Notice of Proposed Abandonment with the Interstate Commerce

Commission (“ICC”) with respect to the portion of railway

line running through Bayfield County that is relevant to

this case. Then, in 1978, the ICC issued a Certificate and

Order permitting the abandonment of the railway line. One

month later, in April 1978, the railroad cancelled its tariffs

on the line, and in 1980, the railroad pulled up the tracks.

In November 1979, soon before the tracks were pulled

up, the County had declined an opportunity to purchase

this right-of-way.

According to the Landowners, the railway line was

abandoned in accord with the terms of § 912 in either

1978 or 1980,4

 while the County contends that a proper
8 No. 07-1348

4 (...continued)

the railway lines over other properties in Bayfield County

had been abandoned, similarly served as a “decree[ ] by a court

of competent jurisdiction” that the property at issue in this

suit had been abandoned; and 3) that the court can make its

declaration of abandonment retroactive, such that this court or

the district court could issue a declaration that the railway

line was abandoned in 1978. See Vieux v. East Bay Regional Park

Dist., 906 F.2d 1330, 1340 (9th Cir. 1990).

declaration of abandonment has not yet been issued.

Regardless, while the County disputes the validity of the

following actions, on March 4, 1980, the railroad executed

a quitclaim deed purporting to convey its interests over

all the property at issue to the SC Johnsons. The SC

Johnsons then donated the majority of these lands to the

Forest Service, while retaining some of the land for themselves, and issuing quitclaim deeds to other parties,

including the Hawksfords and DK Johnsons, whose

properties abutted the right of way.

D. Procedural History

This lawsuit arose out of the County’s ongoing efforts

to convert and integrate abandoned railway lines into

the 500 miles of snowmobile trails that already exist in

the County. See Travel Info: Ashland and Bayfield

County, Snowmobile Report & Information, http://www.

travelbayfieldcounty.com/files/rsnowmobilefr.html (last

visited March 14, 2008). In the hopes of preventing the

County from moving forward with its plan, the Landowners filed an action in federal court against the County and

the United States seeking declaratory relief, see 28 U.S.C.

§ 2201, under the Quiet Title Act, 28 U.S.C. § 2409a. On
No. 07-1348 9

November 1, 2006, the Landowners filed a motion for

summary judgment, contending that § 912, § 913, and

§ 1248(c) were inapplicable because the United States had

not retained any reversionary interests over the former

railway lines, and alternatively, that the railway lines had

been abandoned for purposes of § 912 in 1978, and thus

the County could no longer lay claim to the property. The

County filed its brief opposing the Landowners’ motion

for summary judgment on November 21, 2006, disputing

both of the Landowners’ claims. On that same date, the

United States filed a Disclaimer of Interest in the property.

This Disclaimer, submitted by the United States Attorney’s Office, stated that the United States had determined

that the lands in question had been deeded without the

United States retaining any reversionary interest in the

property, and that accordingly, the United States, under

28 U.S.C. § 2409a(e), disclaimed all interest in the property

at issue in this suit. The following day, the district

court issued an order confirming the Disclaimer of Interest. Subsequently, the Landowners filed a motion to

dismiss, claiming that the Disclaimer resolved the issues

in their favor in the case.

On January 19, 2007, the district court dismissed the

United States from the case and issued its Memorandum

and Order on the Landowners’ motions. After establishing

that despite the Disclaimer, an independent basis for

federal jurisdiction still existed, see 28 U.S.C. § 2409a(e), the

district court proceeded to analyze the impact the Disclaimer had on the County’s asserted property rights over

the railway lines. The court determined that the County did

not acquire any interest in the railway lines until after they

were abandoned, and that prior to that date, the United

States could treat its reversionary interests as it wished.

Accordingly, assuming abandonment had not yet occurred,
10 No. 07-1348

the United States’s Disclaimer of Interest destroyed any

property interest the County had in the railway lines.

Based on these findings, the district court granted the

Landowners’ motion for summary judgment and provided

declaratory relief to the Landowners by quieting title in

their favor with respect to any claim to the property made

by the County under 43 U.S.C. § 912 or 16 U.S.C. § 1248(c).

II. Analysis

A. Federal Jurisdiction

Before proceeding to examine the Disclaimer of Interest’s effect on the merits of this suit, we must first determine whether this Court has jurisdiction over this case. The

Landowners brought suit under the Declaratory Judgment Act, 28 U.S.C. § 2201, to quiet title in the disputed

property. When the suit was originally filed, federal

jurisdiction existed by virtue of the fact that the United

States was named as a defendant. See 28 U.S.C. § 2409a(a);

see also 28 U.S.C. § 1346(f). This basis for jurisdiction,

however, was eliminated when the district court confirmed the Disclaimer of Interest. 28 U.S.C. § 2409a(e).

Thus, in order for the suit to have remained in federal

court, an independent basis for federal jurisdiction was

required. Id. The district court properly found that such

an independent basis exists.

Although the Landowners brought suit under the

Declaratory Judgment Act, this Act does not serve as an

independent basis for federal jurisdiction. Wisconsin v.

Ho-Chunk Nation, 512 F.3d 921, 935 (7th Cir. 2008) (citing

GNB Battery Technologies v. Gould, Inc., 65 F.3d 615, 619

(7th Cir. 1995)). Instead, “jurisdiction is determined by

whether federal question jurisdiction would exist over
No. 07-1348 11

the presumed suit by the declaratory judgment defendant.”

Id. (quoting GNB Battery Technologies, 65 F.3d at 619). Thus,

the issue is whether the County’s presumed complaint

against the Landowners, on its face, would include an

action “arising under” federal law. Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987); 28 U.S.C. § 1331. Here,

the County’s property interest in the railway lines is dependent upon the United States retaining a reversionary

interest in the land pursuant to the congressional acts

deeding the land away, and then rests upon Congress’s

disposal of this reversionary interest under 43 U.S.C. § 912

and 16 U.S.C. § 1248(c). The centrality of these federal

laws’ interpretation to the proper adjudication of this

suit gives rise to federal jurisdiction. This comports with

a long history of Supreme Court decisions finding federal jurisdiction to exist over state quiet title actions. See

Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S.

308, 315-16 (2005) (finding federal jurisdiction when

the issue of notice under a federal statute was a critical

element in a quiet title claim) (citing Hopkins v. Walker,

244 U.S. 486, 490-91 (1917) (federal jurisdiction exists over

a quiet title action when the construction and effect of a

federal mining law was an essential, real, and substantial

part of the plaintiff’s claim); Northern Pacific R. Co. v.

Soderberg, 188 U.S. 526, 528 (1903); Wilson Cypress Co. v.

Del Pozo y Marcos, 236 U.S. 635, 643-644, (1915)). Accordingly, having found that federal jurisdiction exists despite

the United States’s Disclaimer of Interest, we turn to the

merits on this appeal.

B. Effect of Disclaimer of Interest

In reviewing the lower court’s decision on the merits,

because this is an appeal from a grant of the Landowners’
12 No. 07-1348

motion for summary judgment, we review the decision

de novo, Jackson v. County of Racine, 474 F.3d 493, 498 (7th

Cir. 2007), drawing all facts and reasonable inferences

in the light most favorable to the nonmovant, the County.

Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007)

(citing South v. Ill. EPA, 495 F.3d 747, 751 (7th Cir. 2007)).

The facts, however, appear to be uncontested, with the

dispute solely involving the legal property interests held by

the different parties. Thus, to the extent that the resolution

of the Disclaimer’s effect on the County’s interest involves

a pure question of law, drawing upon issues of statutory

interpretation, this too we review de novo. Zeigler Coal Co.

v. Office of Workers’ Comp. Programs, 490 F.3d 609, 613 (7th

Cir. 2007) (“We review pure questions of law de novo.”);

United States v. Genendo Pharm., N.V., 485 F.3d 958, 962 (7th

Cir. 2007) (“a question of statutory interpretation [is]

subject to de novo review”).

We note at the outset that we are provided with little

guidance in addressing the effect of the United States’s

Disclaimer of Interest. The statute itself, under which the

United States disclaimed its interest, fails to define

“disclaimer,” does not address under what circumstances

a district court should “confirm” such a disclaimer, and

fails to address what effect, if any, such a disclaimer has

on a suit other than to divest the federal court of jurisdiction under 28 U.S.C. § 1346(f). See 28 U.S.C. § 2409a(e).

Similarly, little help can be found on this matter by

turning to our sister circuits or the lower federal courts.

Fortunately, our task here is a narrow one. Despite the

lack of clarity as to what effect the Disclaimer has on the

County’s interest, the parties in this suit do not dispute

that the United States properly issued its Disclaimer of

Interest, and the County does not directly challenge the
No. 07-1348 13

5 We do note, however, that there is some tension in the case

law as to whether a district court, prior to confirming the United

States’s disclaimer, is to ascertain the validity of the United

States’s justification for issuing the disclaimer, or whether

confirmation is a mere formality. Compare Donnelly v. United

States, 850 F.2d 1313, 1317 (9th Cir. 1988) (discussing how the

district court confirmed the disclaimer as “valid” in light of the

United States’s proper conveyance of the disputed property in

accord with the governing statute), with W. H. Pugh Coal Co.

v. United States, 418 F. Supp. 538, 539 (E.D. Wis. 1976) (“confirmation of the disclaimer of the United States is deemed a

formality and one which this court should not deny”). There

appears to be greater uniformity among the courts, however, in

finding that a disclaimer should not be confirmed if the United

States is acting in bad faith. See Donnelly, 850 F.2d at 1317 (also

noting that the district court found the disclaimer to be made

in “good faith”); see also W. H. Pugh Coal Co., 418 F. Supp. at

539 (after confirming disclaimer, stating, “If this were a situation in which the state and federal authorities were attempting

to whipsaw the plaintiff and to harrass it so as to avoid a

resolution of this dispute, I would be reluctant to grant the

dismissal.”). In a case such as this, where the United States

has filed a formal Disclaimer of Interest as part of the quiet title

suit (as opposed to a claim by the United States, for example,

that an alleged prior conveyance of its property served as its

disclaimer of interest), we find it unnecessary for the court to

examine the validity of the underlying factual and legal basis

offered for filing the Disclaimer, although confirmation could

(continued...)

district court’s confirmation of this Disclaimer, nor raise

any charge that the United States acted in bad faith.

Accordingly, we also find no issue with the United States’s

filing, and the district court’s confirmation, of the Disclaimer.5

 Furthermore, it is unnecessary for us to deter-
14 No. 07-1348

5 (...continued)

be withheld if the United States were found to have acted in

bad faith.

mine what effect the United States’s Disclaimer had on

parties aside from the County, since the only issue to

determine in this suit is whether the County has

superior title to the Landowners by virtue of § 912 and

§ 1248(c). See United States v. Oregon, 295 U.S. 1, 24-25

(1935) (“A bill to quiet title may not be defeated by showing that the plaintiff’s interest, otherwise sufficient to

support the bill, is subject to possibly superior rights

in third persons not parties to the suit. It is enough that

the interest asserted by the plaintiff in possession of land

is superior to that of those who are parties defendant.”)

(internal citations omitted). Thus, our focus is truly limited to ascertaining the Disclaimer’s effect on the

County’s property interest in the railway lines.

In trying to determine whether the Disclaimer served

to destroy the County’s property interest, it is first necessary to define “disclaimer.” Given that the statute does

not define the term, we turn to the common understanding of the word, which is that the Disclaimer operates

as “[a] renunciation of [the United States’s] legal right or

claim” over the railway lines. BLACK’S LAW DICTIONARY

496 (8th ed. 2004); see Bel v. United States, 452 F.2d 683, 693

(5th Cir. 1971), cert. denied, 406 U.S. 919 (1972) (quoting

City Nat’l Bank & Trust Co. v. United States, 203 F. Supp. 398,

402 (S.D. Ohio 1962) (defining disclaimer as “the repudiation or renunciation of a claim or power invested in a

person for which he formally alleged to be his. The refusal,

or rejection of an estate or right offered to a person. The

disavowal, denial, or renunciation of an interest, right, or
No. 07-1348 15

property imputed to a person or alleged to be his.”); see

BLACK’S LAW DICTIONARY 417 (5th ed. 1979) (defining

“disclaimer” in the context of estates as “[t]he act by

which a party refuses to accept an estate which has been

conveyed to him.”). If the Disclaimer is deemed a “renunciation,” the issue then becomes what it is that is

being renounced—that the United States ever held a

reversionary interest in the land, or merely the United

States’s current reversionary interest in the property. If

it is the former, it would mean that § 912 and § 1248(c)

were never applicable to the railway lines at issue in the

suit. If instead it is the latter, then the question is whether

such a disclaimer still renders § 912 and § 1248(c) wholly

inapplicable to the railway lines, or whether, under the

statutory scheme in § 912 and § 1248(c), the County’s

interest is destroyed by the Disclaimer.

We turn first to the question of whether the United

States’s Disclaimer has the effect of renouncing that the

United States ever held a reversionary interest in the

land at issue. As the district court observed below, as a

general matter, under common law principles for trusts

and estates, a disclaimer or renunciation is treated as

making an interest ineffective from its inception. See Jewett

v. Comm’r, 455 U.S. 305, 323 (1982) (Blackmun, dissenting)

(in a trust case, stating, “[a] disclaimer is a refusal to accept

property ab initio”); see also RESTATEMENT (FIRST) OF PROPERTY § 231 cmt. d (1936) (in the estates context, describing

how, “Normally renunciation is not manifested until a

date subsequent to the time when the creating instrument becomes operative. When, however, such renunciation is manifested, the resulting ineffectiveness operates . . .

as an ineffectiveness in the inception.”) However, this

legal fiction does not alter whether the United States in
16 No. 07-1348

fact retained a reversionary interest in the railway lines

at issue in this suit.

Even if, as a general matter, the mere filing of a disclaimer of interest cannot alter the underlying history of

conveyances and property interests surrounding a

given piece of land, the Landowners argue that this Court

should defer to the specific legal assertions made by

the United States in the Disclaimer filed in this suit.

Here, the Disclaimer filed by the United States Attorney’s

Office on behalf of the United States did not merely

disclaim the United States’s interest in the property, but

also included the legal predicate for doing so—namely, that

the United States had not retained any reversionary interest

or right of reentry to the land ultimately deeded to the

Landowners. The Landowners argue that the district court,

upon confirming the Disclaimer, should have accepted

these assertions at face value, and thus found that because

the United States lacked any reversionary interest in

the railway lines, § 912 was inapplicable to the property

at issue and accordingly the County lacked any interest

in the right-of-way. This, however, is not the case. The Department of Justice’s mission “[t]o enforce the law and

defend the interests of the United States,” United States

Department of Justice, Mission Statement, http://www.

usdoj.gov/02organizations/ (last visited on March 10,

2008), and the United States Attorney’s duty to represent

the United States in all civil matters, 28 U.S.C. § 547, does

not bestow that office with the power to authoritatively

determine mixed questions of law and fact, such as

whether the United States originally maintained a reversionary interest over the railway lines at issue in this

suit. Thus, the district court’s confirmation of the Disclaimer only confirmed the United States’s renunciation of

its interest in the property as of the date of the Disclaimer’s
No. 07-1348 17

6 We note that this is not to say that the United States could

not express, as a litigant in this lawsuit, the position it has

adopted in the Disclaimer. We only find that the Disclaimer

does not bind this Court to adopt those legal conclusions.

filing—whether the United States ever in fact held a

reversionary interest in the railway lines is a matter left

to the courts, assuming jurisdiction over the suit still

exists.6 See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is

emphatically the province and duty of the judicial department to say what the law is.”); Alaska v. United States, 662

F. Supp. 455, 457-58 (D. Alaska 1987), affirmed by Alaska v.

Ahtna, Inc., 891 F.2d 1401 (9th Cir. 1989) (district court’s

confirmation of United States’s disclaimer of interest did

not strip the court of jurisdiction to review the Secretary

of Interior’s determination of a waterway’s navigability,

the sole issue in determining whether property interest

originally lay with the United States or with Alaska).

Assuming, then, that the United States did in fact retain

a reversionary interest in the railway lines at issue in this

suit, the remaining question is what legal effect, if any,

the Disclaimer now has on the County’s property interest.

Here too, separation of powers concerns exist, which in

this case prevent the Disclaimer from effectively repealing

§ 912 and § 1248(c)’s applicability to this land. As has

already been discussed, § 912, § 913, and § 1248(c) were

passed by Congress pursuant to the United States’s reversionary interest in the railway’s right-of-way. This interest

can best be characterized as a “possibility of reverter,”

which only vests upon abandonment of the railway line,

at which point the interest is still subject to divestment if

a public highway is established within one year’s time.

See Vieux v. E. Bay Reg’l Park Dist., 906 F.2d 1330, 1337 (9th
18 No. 07-1348

7 The relevant language in Independent School Dist. v. Smith

states:

As to the parties who might ultimately become entitled to

a reversion under the provisions of the statute then existing,

no right then vested. The legislature could thereafter have

repealed the provision for reversion, without violating the

rights of anyone. It could have again enacted different

provisions pertaining to reversion, without violating the

rights of anyone. In other words, no one then had a vested

right in the future operation of the statute.

Cir. 1990). Tracking the district court’s reasoning, the

Landowners assert that similarly, the County’s interest

in the property cannot vest unless three contingencies

occur: 1) the United States retains its reversionary interest; 2) the railway line is abandoned; and 3) a public

highway is established. Accordingly, assuming abandonment has not yet occurred, the Landowners claim that

the United States was free to alter, amend, or release

the non-vested property interests it held, as well as those

of the County.

The Landowners are partially correct in their argument.

As the cases cited by the Landowners to support their

position reflect, when a legislature disposes of a possibility of reverter in a statute, until that interest vests into

an enforceable right, the legislature is free to repeal that

reversionary interest or amend the contingencies upon

which the interest will vest. Independent School Dist. v.

Smith, 181 N.W. 1, 2 (Iowa 1921);7

 Commonwealth Transp.

Comm’r v. Windsor Indus., 630 S.E.2d 514, 521 (Va. 2006)

(“Thus, we are of opinion that until the possibility of

having an estate in the property vested into an enforceable

right, the contingencies upon which it depended and the
No. 07-1348 19

procedures for exercising the right accrued remained

subject to modification by future amendment.”). Thus, as

reflected by Congress’s 1988 amendment to § 912 with

§ 1248(c), Congress was free to modify the disposal of

the United States’s reversionary interest for railway lines

that had not yet been abandoned according to the terms

set forth in § 912. The Landowners fail to recognize,

however, that there is a distinction between Congress

modifying the disposal of the United States’s reversionary

interest and the United States Attorney’s Office trying to

do the same. While it is uncontested by the County that

the United States Attorney’s Office has been granted the

authority to disclaim the United States’s own interest in the

property at issue, that does not give the United States

Attorney’s Office the authority to also effectively disclaim the County’s statutorily created interest. See Royal

Indemnity Co. v. United States, 313 U.S. 289, 294 (1941)

(“Subordinate officers of the United States are without [the]

power [to release or otherwise dispose of the rights and

property of the United States], save only as it has been

conferred upon them by Act of Congress or is to be implied

from other powers so granted.”) If the United States

Attorney’s Office, by filing a Disclaimer of Interest, is “free

to foreclose Bayfield County’s future contingent rights” in

the right-of-way as the district court maintained, this

effectively amounts to the executive branch’s usurpation

of Congress’s decision to bestow the County with a future,

contingent property interest in the right-of-way, creating

separation of powers concerns.

The Landowners further argue, however, that common

law principles must be applied to the property interests

in § 912 and § 1248(c), in which case the Landowners

claim that by the very terms of § 912 and § 1248(c), the

Disclaimer serves to extinguish the County’s property
20 No. 07-1348

interest. According to the Landowners, the Disclaimer

should be treated the same as a “release” of the United

States’s possibility of reverter, which, as the Landowners

maintain, at common law served to convert what was

previously a determinable or qualified fee into a fee

simple absolute. 28 AM. JUR. 2D ESTATES § 210 (2007);

HERBERT T. TIFFANY & BASIL JONES, 2 TIFFANY REAL PROP.

§ 314 (1939). While this Court acknowledges that at common law, a “release” of a possibility of reverter generally

has this effect, see RESTATEMENT (FIRST) OF PROPERTY § 58

(1936), it is still not altogether clear whether the County’s

interest would invariably be extinguished under common law principles. First, the authorities cited by the

Landowners do not clearly state whether such a release

invariably destroys the executory limitation that would

attach to the United States’s estate upon reversion of the

right-of-way. See RESTATEMENT (FIRST) OF PROPERTY § 46

cmt. n (1936) (discussing springing executory limitations,

and noting that when a deed “contains a limitation in

favor of persons not ascertainable until after the end of

such prior interests, the conveyor, or his successor in

interest retains a reversionary interest which, at the end of

the other created interests, becomes a present estate in

fee simple subject to an executory limitation of the springing type.”). Furthermore, it is not a given that a “release” is

the proper analogy to this Disclaimer under common

law principles, or whether a “renunciation” is the better

analog. See RESTATEMENT (FIRST) OF PROPERTY §§ 231,

233 (1936) (discussing “renunciation” and its impact on

succeeding interests). Fortunately, contrary to the Landowners’ position, this Court is not required to decipher

how the County’s property interest and the Disclaimer

fit within common law property classifications. As the
No. 07-1348 21

Supreme Court stated in an early case involving a congressional land grant to a railroad:

It is always to be borne in mind, in construing a congressional grant, that the act by which it is made is a

law as well as a conveyance, and that such effect must

be given to it as will carry out the intent of Congress.

That intent should not be defeated by applying to

the grant the rules of the common law, which are

properly applicable only to transfers between private

parties.

Missouri, Kan. and Tex. Ry. v. Kansas Pac. Ry., 97 U.S. 491,

497 (1878); Leo Sheep Co. v. United States, 570 F.2d 881, 885

(10th Cir. 1977) (“In order to determine whether there

was an implied reservation of an easement of access, we

look solely to the intent of Congress, as such will not be

defeated by application of the rules of common law.”)

(citing Missouri, Kan. and Tex. Ry., 97 U.S. at 491). This

rule, specifically articulated by the Supreme Court with

respect to statutorily granted property interests in the

railroads, takes precedent over general language by the

Supreme Court cited by the Landowners that Congress

intends for common law definitions to be applied to terms

not otherwise defined in a given statute. See Neder v. United

States, 527 U.S. 1, 23 (1999) (“Congress intends to incorporate the well-settled meaning of the common-law terms it

uses . . . ‘unless the statute otherwise dictates.’ ”) (quoting

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992));

see also Evans v. United States, 504 U.S. 255, 259-60 (1992).

Indeed, courts have specifically stated, in reference to

§ 912, that “[t]he precise nature of [the United States’s]

retained interest need not be shoe-horned into any

specific category cognizable under the rules of real property law.” Marshall v. Chicago & Northwestern Transp. Co., 31
22 No. 07-1348

8 We observe that this holding is entirely consistent with other

cases to have addressed the effect of a disclaimer of interest

under 28 U.S.C. § 2409a(e). The most closely analogous case is

Leisnoi, Inc. v. United States, 313 F.3d 1181 (9th Cir. 2002), in

which Leisnoi, an Alaska Native village corporation, sought

to quiet title against the United States with respect to land it

had obtained from the United States under the Alaska Native

Claims Settlement Act. Id. at 1182-83. A third-party, Stratman,

who had conducted ranching operations on the land when it

was federally owned, moved to intervene, claiming that the

lands should be returned to the federal government because

Lesnoi did not qualify as a Native Village under the Act. Id. The

United States issued a disclaimer of title, which the district

(continued...)

F.3d 1028, 1032 (10th Cir. 1994) (quoting Idaho v. Oregon

Short Line R.R. Co., 617 F. Supp. 207, 212 (D. Idaho 1985)).

Accordingly, the Landowners’ claim as to what effect the

Disclaimer has on the County’s property interest under

common law principles is immaterial. Congress, in passing

§ 912 and § 1248(c), provided that local governments could

take claim to properly abandoned railway lines by establishing a public highway within a one-year time period.

Congress has the means to further amend, modify, or

repeal this property interest, but under the current terms

of the statute, Congress’s intent would be frustrated by

permitting the Disclaimer to extinguish local governments’

interest in establishing a public highway on these lands.

Accordingly, for the reasons discussed, we hold that the

United States’s Disclaimer did not serve to extinguish any

interest the County holds in the railway line, assuming

the United States originally retained a reversionary interest in the right-of-way and formal abandonment, according

to the terms in § 912, has not yet occurred.8

 In reaching
No. 07-1348 23

8 (...continued)

court confirmed, then dismissing Stratman’s motion to intervene as moot. Id. at 1184. The Ninth Circuit affirmed the

dismissal of the motion to intervene. Id. at 1184-85. Contrary to

the Landowners’ claim that Stratman and the County are

similarly situated in both cases, a clear distinction exists.

Stratman had no interest in the disputed property—his sole

claim was that title should remain with the United States. Id. at

1185. In contrast, the County has a statutorily created interest in

establishing a public highway on the railway lines within one

year of abandonment according to the terms in § 912. This

distinction allows for the difference in outcome between the

dismissal in Leisnoi and the continued vitality of the County’s

claim at this stage of the proceedings.

this decision, we are mindful of the important policy

considerations raised by the parties and the amicus curiae,

particularly with respect to the County and Congress’s

interest in preserving abandoned railway lines for conversion into trails, as opposed to the Landowners’ interest

in not being stripped of land they have deemed their own

for over twenty years. These policy concerns, however,

are more appropriately addressed with respect to the

issue of when the railway lines were abandoned according

to the terms of § 912, assuming that the United States did

in fact retain a reversionary interest in the property. Given

that the district court based its grant of summary judgment and order quieting title in the Landowners’ favor

based solely upon what we have found to be an erroneous

finding regarding the Disclaimer’s effect on the County’s

alleged interest in the right-of-way, we remand for consideration of whether the United States did in fact retain

a reversionary interest in the land at issue and, if so,

whether the railroad’s right-of-way has been abandoned

according to the terms of § 912 and § 1248(c).
24 No. 07-1348

III. Conclusion

For the foregoing reasons, we VACATE the district court’s

grant of summary judgment and declaratory judgment

quieting title in the Landowners’ favor, and REMAND for

further proceedings consistent with this opinion.

USCA-02-C-0072—4-2-08