A Word on the Feds’ Strange Behavior From one Who Knows

A while back, last November to be exact, we had occasion to comment on the Feds’ strange behavior.  Click here.

Although both the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit have plainly held in the Preseault case that the so-called Rails-to-Trails Act that converts privately owned rights of way of railroads that have discontinued operations into public hiking and biking rails, amounts to a taking of the servient owners’ interest in the land underlying those rights of way, the Feds keep on resisting plainly meritorious claims by these folks who want to get paid for those servient interests taken from them. So in violation of the Uniform Relocation Assistance Act, instead filing eminent domain actions like they are supposed to, to acquire those servient interests, the feds ignore claims of their owners and thus force them to sue in the U.S. Court of Federal Claims. Why are they dong this? Beats us, because they have been losing these cases every time.

Anyway, Thor Hearne, a colleague who does a lot of this work on behalf of property owners has chimed in, and with his permission, we quote here the pertinent part of his e-mail.

[T]he Justice Department has persisted with an irrational strategy of repeatedly
making the same losing argument in its effort to frustrate landowner’s right to
be paid for that property which the federal government has taken under the
National Trails System Act. Judge Smith’s latest decision rejecting the Justice
Department’s argument is just the most recent rejection of the government’s
argument. This is the 16th Trails Act case the Justice Department
has lost in just the past year. The Justice Department has an unbroken
string of losses in these Trails Act cases. In all of these cases the
government argued that, essentially, a public recreational trail is the same
thing as a railroad and, therefore, converting an abandoned railroad easement into
an easement for public recreation and so-called ‘railbanking’ is not a taking.
Or, in a variation of this argument, the Justice Department contends the value
of the property taken must be determined by using a “before and after
appraisal” in which the property is assumed to be perpetually encumbered by an
active railroad right-of-way in the “before” condition.


It is not at all surprising that, since Preseault I 494 U.S. 1 (1990) and Preseault
100 F.3d 1525 (Fed. Cir. en banc, 1996), no court has accepted
this argument. The only remarkable point is that the Justice Department
persists in making this argument. It is a truly bizarre litigation strategy.
Again, as several noted during the ALI-ABA conference in San Diego, the
government must not only pay the owners for the property it has taken, it must
also pay interest on this amount and reimburse the owners for their litigation
expenses. The Trails Act – and especially the Justice Department’s litigation
strategy responding to these landowners’ claims – is extravagantly expensive to
taxpayers. (Emphasis in the original).


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