UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALASKA RAILROAD No. 22-35573 CORPORATION, D.C. No. 3:20-cv- Plaintiff-Appellee, 00232-JMK v. FLYING CROWN SUBDIVISION ORDER AND ADDITION NO. 1 AND ADDITION OPINION NO. 2 PROPERTY OWNERS ASSOCIATION, a non-profit,

Defendant-Appellant, and MUNICIPALITY OF ANCHORAGE, DEPT OF LAW,

Intervenor-Defendant.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Argued and Submitted August 15, 2023 Anchorage, Alaska

Filed December 29, 2023 2 ALASKA R.R. CORP. V. FLYING CROWN SUBDIVISION

Before: Richard A. Paez, Jacqueline H. Nguyen, and Bridget S. Bade, Circuit Judges.

Order; Opinion by Judge Nguyen

SUMMARY *

Property Law

In a case in which Chief Judge Murguia is recused and Judge Bade was drawn as a replacement judge, the panel (1) withdrew the opinion filed on September 18, 2023; (2) filed a new opinion, reflecting Judge Bade’s concurrence, affirming the district court’s summary judgment in favor of Alaska Railroad Corp. (“ARRC”) in its action seeking to quiet title in a railroad right-of-way and to clarify that ARRC’s interest in the right-of-way includes an exclusive- use easement; (3) denied a petition for panel rehearing; and (4) denied a petition for rehearing en banc. ARRC, a state-owned corporation, owns and operates Alaska’s railroad system. It possesses a right-of-way on which it operates a section of track next to an air strip owned by Flying Crown Subdivision No. 1 and Addition No. 2 Property Owners Association. ARRC’s right-of-way includes one-hundred feet on either side of the track’s center

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALASKA R.R. CORP. V. FLYING CROWN SUBDIVISION 3

line, some of which directly overlaps with Flying Crown’s air strip. The panel held that the Alaska Railroad Act of 1914 authorized the creation of the Alaska Railroad, a federal railroad, and reserved railroad rights-of-way to the United States. The Alaska Railroad Transfer Act of 1982 authorized the federal government to transfer nearly all of the Alaska Railroad property rights to ARRC. In 1950, the United States issued the “Sperstad Patent” to Flying Crown’s predecessor in interest. The Alaska Railroad’s track already traversed the land, and the Sperstad Patent reserved a railroad right-of-way. The panel held that the 1914 Act did not reveal the scope of the right-of-way retained by the government. Considering common law principles, the sovereign grantor canon, and the court’s interpretation of the general right-of-way statute adopted by Congress in 1875, the panel concluded that, in the Sperstad Patent, the federal government intended to reserve an exclusive-use easement under the 1914 Act. The panel further held that the federal government transferred the exclusive-use easement it retained under the 1914 Act to ARRC under the Alaska Railroad Transfer Act of 1982.

COUNSEL Jeffrey W. McCoy (argued), Pacific Legal Foundation, Highlands Ranch, Colorado; Damien M. Schiff, Pacific Legal Foundation, Sacramento, California; Paige E. Gillard, Pacific Legal Foundation, Arlington, Virginia; Eva R. Gardner, Ashburn & Mason PC, Anchorage, Alaska; 4 ALASKA R.R. CORP. V. FLYING CROWN SUBDIVISION

Thomas E. Meacham, Thomas E. Meacham Attorney at Law, Anchorage, Alaska; for Defendant-Appellant. Michael C. Geraghty (argued) and William G. Cason, Holland & Hart LLP, Anchorage, Alaska, for Plaintiff- Appellee. Ashley C. Brown and John A. Lehman, Kemppel Huf