What Are the Feds Doing And Why Are They Doing It?

Ever since the U.S. Supreme Court decided Preseault v. I.C.C., 494 U.S. 1 (1990), holding that when a railroad ceases operations and abandons its right of way easement, causing a reversion of the eas ement area to the underlying land owner, that does not justify the invalidation of government action when the feds (or local  government) want to grab it for hiking trails. However, it does give rise to a taking when the federal government takes over the vacated right of way for a hiking and biking trail.

The problem is that under  prevailing state property law, when a railroad ceases to operate and its right of way is abandoned, that means that the area covered by that right of way reverts to the underlying servient owner free and clear of t he easement. So when the feds step in, as they eventually did via the Rails-to-Trails Act that transforms those former railroad rights of way into public recreational uses, like hiking trails, that means that they are taking the former easement areas and are then required to pay just compensation.

But since they haven’t done that (pay, that is) the owners of the servient easement areas have had to sue for their compensation. And where the taking is by the feds, you have to sue them in the U.S. Court of Federal Claims in Washington, under the Tucker Act. And so, the owners did this en masse. Even though the law on point has been crystal-clear, and the owners were clearly in the right, the feds have been fighting tooth and nail to keep from paying. Why? We have no idea because when they lose an inverse condemnation case, the owners are entitled not only to just compensation, but also to attorneys’ fees and interest. So each time the feds dig in their heels and fight a losing case like that, they are only making things more expensive for themselves and the  federal taxpayers.

To give you an idea of what’s going on, allow us to share our experience in writing Just Compensation, our monthly report on eminent domain that has been in print continuously since 1957.  In preparing the latest issue, we came across  four — count ’em, four — such cases. If you don’t believe us, check out  98 Fed.Cl. 797, 99 Fed.Cl. 133, 99 Fed.Cl. 483, and 99 Fed.Cl. 565. The feds lost every one.

So why are they fighting and blowing the taxpayers’ money on these battles they haven’t been able to win and are unlikely to win in the future? We have no idea. But if you do, please let us know.