Property Rights

If the government takes private property the Constitution requires the government to pay the landowner “just compensation” for that property the government took form the landowner.  The Fifth Amendment to the United States Constitution says, “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Every state constitution contains a similar provision protecting an owner’s right to their private property.  Depending upon the circumstances of your case, you may also be entitled to be paid additional compensation for what the government took and the expenses you may have incurred in defending your right to be compensated.  The federal Uniform Relocation Act, 42 U.S.C. § 4601, et seq., requires the federal government (or a state government using federal funds or acting under federal authority) to pay your legal fees and litigation expenses.  The text of the Uniform Relocation Act is available here.

As the Supreme Court ruled more than one hundred years ago, the purpose of the Fifth Amendment is to protect a landowner’s right to his or her private property.  The Fifth Amendment provides that, if the government (state or federal) takes an owner’s private property, the government must make the owner whole.  See, e.g., Seaboard Air Line Railway v. United States, 261 U.S. 299, 304 (1923) (“The compensation to which the owner is entitled is the full and perfect equivalent of the property taken.  It rests on equitable principles and it means substantially that the owner shall be put in as good position pecuniarily as he would have been if his property had not been taken.”) (citation omitted). 

The federal Trails Act takes your private property.

In enacting the federal Trails Act, Congress wanted to preserve otherwise-abandoned railroad corridors by delaying the railroad’s authority to abandon the corridor to allow the railroad to possibly sell the right-of-way to a non-railroad for a public recreational trail.  See National Wildlife Federation v. I.C.C., 850 F.2d 694, 697 (DC Cir. 1988).  But this didn’t work.  The Supreme Court observed that “by 1983, Congress recognized that these measures [the public use provision delaying disposition] ‘ha[d] not been successful in establishing a process through which railroad rights-of-way which are not immediately necessary for active service can be utilized for trail purposes.’”  Preseault v. I.C.C., 494 U.S. 1, 6 (1990).  Delaying abandonment for a limited period of time didn’t succeed because, under state law, the railroad had nothing to sell.

The Supreme Court explained, “many railroads do not own their rights-of-way outright but rather hold them under easements [and] … the property reverts to the abutting landowner upon abandonment of rail operations.”  Preseault, 494 U.S. at 7.  Congress adopted section 8(d) of the Trails Act to fix this problem by pre-empting state law and allowing a railroad to sell the otherwise abandoned right-of-way to a non-railroad trail-user notwithstanding the fee owner’s state law reversionary interests.

The Supreme Court explained that section 8(d) of the Trails Act, which is invoked by the Board when the Board’s issues an order called a “Notice of Trail Use or Abandonment” (NITU), “pre-empt[s] the operation and effect of certain state laws that ‘conflict with or interfere with federal authority over the same activity.’”  Preseault, 494 U.S. at 21 (O’Connor, J., concurring).  State courts “cannot enforce or give effect to asserted reversionary interests….”  Id. at 22.  When the Surface Transportation Board (the Board) invokes section 8(d), it denies an owner his reversionary right to possess his land and perpetually forestalls termination of the railroad easement.  See National Wildlife, 850 F.2d at 705; Citizens Against Rails-to-Trails v. Surface Transportation Board, 267 F.3d 1144, 1149 (DC Cir. 2001). 

If the railroad and trail-sponsor agree, the railroad transfers the right-of-way to the trail-sponsor.  The agreement between the railroad and trail-sponsor is a private agreement not filed with the Board, and affected landowners are never told of the agreement between the railroad and trail-user.   As a further consequence of invoking section 8(d), the Board retains jurisdiction of the corridor, perpetually pre-empting state law, and may authorize any railroad (not just the original railroad) to build a new railroad line across the owner’s land.  The Board can indefinitely extend the period for the railroad to reach a trail-use agreement.  See Birt v. Surface Transportation Board, 90 F.3d 580, 589 (DC Cir. 1996).  See also Rail Abandonments – Supplemental Trails Act Procedures, 4 I.C.C.2d 152 (1987).  The Board will also freely issue “replacement NITUs,” substituting new and different trail-sponsors even after the trail-use negotiating period has expired.  See Barclay v. United States, 443 F.3d 1368, 1376 (Fed. Cir. 2006) (despite expiration of the original NITU, replacement NITU precluded consummation of abandonment and reversion of landowners’ interest). 

Once a trail-use agreement between the railroad and the trail-sponsor is executed, which may take months or years, the trail-sponsor may proceed to construct a recreational rail-trail.  The duration between when the government originally invokes section 8(d) and when trail-use is established or negotiations with trail-sponsors end without any agreement frequently lasts a decade or longer – far longer than the six-year statute of limitations for a landowner to bring a claim for compensation.  See, e.g., Wisconsin Cent. Ltd., No. AB-303 (Sub-No. 18X) (Surface Trans. Bd. July 28, 2009) (NITU issued March 1998 and extended until January 2010).  Thus, because construction of a recreational trail may not begin until six years after an owner’s land has been taken, an owner may be unaware that his land has been taken until the landowner is no longer eligible to file a claim for compensation.

For more information on the Trails Act, see the following law review articles by Thor Hearne:

• Mark F. (Thor) Hearne, II, The Trails Act: Railroading Property Owners and Taxpayers for More Than a Quarter Century, 45 ABA Real Property, Trust & Estate Law Journal 115 (Spring 2010), available here.
• Mark F. (Thor) Hearne, II, The Fifth Amendment Requires the Government to Pay an Owner Interest Equal to What the Owner Could Have Earned Had the Government Paid the Owner the Fair-market Value of Their Property on the Date the Government Took the Owner’s Property, 1 Brigham-Kanner Property Rights Journal 3 (2012), available here.

How to be paid for a Trails Act taking of your private property. 

Federal law requires that all claims for compensation against the federal government over $10,000 must be filed in the United States Court of Federal Claims, which sits in Washington, DC.  Unlike in other eminent domain cases, landowners whose property is taken under the Trails Act must affirmatively file a claim for compensation in this court.  It is critical that your attorney not only be specially admitted to practice in this court, but have the best and most in-depth trial experience in this court.

Who is the best lawyer to represent you in making your claim for compensation for a Trails Act taking of your property.

Your selection of an attorney is extremely important.  You have only one opportunity to be compensated and you will want to select the attorney with the most experience and ability to represent you.

If the government has taken your property for a public rail-trail corridor, you may receive solicitations from many attorneys asking you to engage them to represent you.  Be careful!  You should not select an attorney based upon advertisements, and you should choose the most qualified and experienced attorney.  

Here are some points to consider: 

• How many landowners has the attorney successfully represented?

Thor pioneered this field of law and is the most experienced attorney litigating Trails Act taking cases.  Thor has successfully brought Trails Act taking cases as lead counsel on behalf of over 1,000 landowners in sixteen states.

• What is the attorney’s trial and appellate experience and his firm’s experience?How many cases has the attorney tried as the lead trial counsel in court?  This is not just as a “second-chair” in trial or name on the pleadings, but the actual attorney representing the landowners as the lead trial counsel who was responsible for the trial of the case.

In the more than thirty years Thor has practiced law, Thor has gained extensive experience as lead counsel in complex federal litigation before both trial and appellate courts.  Thor has argued appeals before the United States Supreme Court, the Fourth, Sixth, Eighth, Eleventh, and Federal Circuits, and before the Florida, Missouri, Michigan, and Kansas state supreme courts.  No other attorney in Trails Act cases can claim this level of trial and appellate experience.

• How many cases has the attorney argued in the Court of Appeals or the United States Supreme Court or lower state and federal courts of appeal? 

In addition to the dozens of cases Thor has argued in appeals, including in the U.S. Supreme Court, Thor has filed amicus curiae briefs (or “friend of the court” briefs) as lead counsel in the U.S. Supreme Court on behalf of many public officials, property law scholars, and property rights organizations, including members of Congress, the Cato Institute, American Farm Bureau Federation, Montana Farm Bureau Federation, American Land Title Association, National Cattlemen’s Beef Association, Public Lands Council, and law school professors James Ely, Jr., Richard Epstein, Donald Kochan, and Dale Whitman. 

• What national recognition or positions has the attorney received?Especially in the area of property rights and eminent domain litigation?

Thor is one of only 51 attorneys who are members of Owners’ Counsel of America, an invitation-only association of the top attorney in each state who exclusively represents landowners in eminent domain cases.  I am the only Owners’ Counsel of America attorney who brings and litigates Trails Act taking cases.  See their website at www.ownerscounsel.com.  Thor was named one of the nation’s “Top Fifty Litigation Trailblazers and Pioneers” by the National Law Journal and was also featured in the National Law Journal as a pre-eminent national trial and appellate attorney for his work in property rights litigation.

Thor is a sought-after speaker at national eminent domain conferences, including the American Law Institute’s Eminent Domain and Land Valuation Litigation Seminar and the Brigham-Kanner Property Rights Conference at William & Mary University.

• Ask for references.Ask the attorney to provide the names of other landowners that have retained the attorney and are satisfied with the outcome of their case.  Some attorneys will recommend that an owner settle a case for a fraction of what the owner is due in order that the attorney is paid a quick fee.  The important point for you as the landowner is that the attorney you retain to represent you is your advocate and cares more about you and seeing that you receive the full compensation you are due rather than just getting an attorney fee by settling you claim “on the cheap” so there is a quick settlement.  For a court-filed reference regarding Thor’s Trails Act litigation expertise, see here.

Before signing any agreement for any attorney to represent you and your property rights, it is important to ask these questions and make sure you are represented by the most experienced and most qualified attorney.