Active: Ninth Circuit appeal challenges court-approved property rights extortion

The Flying Crown subdivision near Anchorage, Alaska, with its adjacent airstrip, is naturally home to many pilots.

The Alaska Railroad, a state-owned company, has long held an easement across the subdivision and part of the airstrip. The easement, first granted by the federal government and later transferred to the state, was always treated as “nonexclusive.” That is, the railroad could cross homeowners’ properties but could not prohibit homeowners from crossing or using the easement for their flight-related activities.

The homeowners have flown for decades with no safety issues or other concerns. In many instances, the homeowners invested time and money in building the infrastructure necessary to accommodate their planes. Nor have they drawn complaints from the railroad.

In 2020, however, the railroad sued Flying Crown, claiming the easement is actually “exclusive,” meaning the railroad has the power to deny property owners permission to use the easement area—even though they own the underlying property—and to charge the property owners fees as a condition of using their own airstrip.

The railroad has made it very clear that this is a test case, seeking legal cover for government easement holders throughout Alaska to exclude underlying property owners, and charge them for using their own property.

Nevertheless, a federal district judge took the railroad’s side, saying that the easement is exclusive. Now, the railroad can prevent a use that property owners have had for decades.

If other courts adopt the district court’s interpretation, property owners around the country will be affected, especially large swaths of land throughout the western United States that is often burdened by railroad easements. This includes the “rails to trails” movement, which seeks to convert old railroad easements into public access trails, and could open private property to the public.

The government cannot take more land than it’s been granted. If a government-owned railroad wants to expand the scope of an easement, it can, but not by fiat. It must pay just compensation.

Represented at no charge by PLF, the subdivision’s homeowners appealed the lower court’s decision at the Ninth Circuit Court of Appeals to stop the Alaska Railroad from enshrining easement holders’ exclusionary powers at the expense of private property rights.

What’s At Stake?

  • Government can’t take more land than it kept in a property easement agreement. Nor can it unilaterally change the terms of that agreement to block landowners’ rights to use their own property.

Case Timeline

January 17, 2023