FEDS TAKE PROPERTY FOR A TRAIL; TAKE TAXPAYERS FOR A RIDE [Burlington, Vermont]

Mountain States Legal Foundation ^ | 3 June, 2002 | William Perry Pendley

[brityank]

FEDS TAKE PROPERTY FOR A TRAIL;
TAKE TAXPAYERS FOR A RIDE

William Perry Pendley
President and Chief Legal Officer

 

On May 22, 2002, the U.S. Court of Federal Claims ordered the United States to pay J. Paul and Patricia Preseault of Burlington, Vermont, for the unconstitutional taking of their property, that is, without paying for it. The United States was ordered to pay: $234,000, plus interest from the February 5, 1986, date of the taking, for a total of $551,931.30; and $894,855.60 in attorneys' fees. The United States will be writing a check for $1,446,786.90!

The United States will be writing that check because, in 1983, Congress amended the National Trails Act, by enacting the Rails to Trails Act, which prevents railroad easements that cross private property from reverting to the landowners after railroads abandon rail service. Thus, the owners are denied the reversionary rights to which they are entitled by: their deeds, the contract into which they or their predecessors entered with the railroad, and state law. Instead, if the easements are sought for trail use, the United States instructs the railroads that they may abandon rail service only if they transfer the easement for that purpose.

That is what happened to the Preseaults. Their land near the shore of Lake Champlain in northern Vermont was traversed by the Vermont Railway. In 1981, the railway right-of-way having been abandoned, the Preseaults sued in state court for their reversionary rights under Vermont law. In August 1983, the court dismissed their case, ruling that the United States controlled the easement, a decision upheld by Vermont's Supreme Court. In 1985, the Preseaults petitioned the United States for a ruling that the rail line had been abandoned. Instead, in January 1986, the United States authorized the railroad to end its rail service and approved the transfer of the easement to the City of Burlington for use as a bicycle and pedestrian path. In 1988, the Preseaults' challenge to the constitutionality of the Rails-to-Trails Act failed at the U.S. Court of Appeals for the Second Circuit. Then, in 1990, the U.S. Supreme Court ruled that while the Act was constitutional, the Preseaults' property might have been "taken for public purpose without just compensation," a determination that required the Preseaults to file a claim against the United States.

On December 26, 1990, the Preseaults did so, arguing that Congress had taken their property and they were owed "just compensation." The United States said, "No;" it owed the Preseaults nothing! In 1992, the U.S. Court of Federal Claims agreed, as did a three-judge panel of the U.S. Court of Appeals for the Federal Circuit in 1995. Then, in November 1996, the entire Federal Circuit reversed both decisions, ruling that the Preseaults' property had been taken and they were owed "just compensation." Four and one half years later, a trial was held on the amount of compensation; on May 22, 2001, a ruling was issued. One year later, the court ruled regarding attorneys' fees.

As large as the check is that the United United States must write, it could have been worse; the $900,000 in attorneys' fees covers only the litigation that began in December 1990. But, as the late Senator Everett McKinley Dirksen once said, "a million here, a million there, and pretty soon you're talking about real money."

However, the taxpayers did not get the worst of it. Twenty-one years after the Preseaults went to court to regain their property and more than eleven years after they sought the "just compensation" to which the Constitution says they are entitled, they won. It took all those years for one reason: the federal government fought them every step of the way!

In 1995, a top official at Clinton's Justice Department gave a major speech against legislation then being considered by Congress to cut the time necessary for people like the Preseaults to obtain "just compensation." "There's no need to change the law," she argued, "we readily compensate anyone whose property is taken." Tell that to the Preseaults!

If you would like to help support MSLF in litigating against this type of abuse, click below. MSLF's sole source of support is the tax-deductible contributions it receives from people like you.

https://www.ifr-ors.com/wpr.cfm?wp=14&A=713

[MsLady]

Excellent!!! But, what a longtime to wait for justice.

[brityank]

Almost twenty years for them to win what is constitutionally mandated, and the taxpayers get stuck paying more than twice due to the legal fees. (No. I don't begrudge the lawyers fees.)

Ping.

[Grampa Dave]

Late but good news ping!

[Carry_Okie]

Haven't seen you in a while.

[backhoe]

All you folks who surf in here need to click on this:

landgrab:

To find all articles tagged or indexed using landgrab, click below:
	click here >>>	landgrab	<<< click here
(To view all FR Bump Lists, click here)

... to see just how much mischief has been "slipped in under your radar" while you weren't paying attention...

[brityank]

I might be late, but I think I brought good stuff!

Been tied up the past couple of months moving a data center from across the pond; I have a feast-or-famine job! Cheers.

[Fish out of Water]

fyi

[Ben Ficklin]

Thanks for the ping. I haven't seen you here lately.

[Libertina]

Evening Brityank, I'm happy with the outcome, but dumbfounded at the bizzarre stuff the federal government tries to get away with. Here's one for you: Washington State, large church buys land for new church (appropirately zoned), has been collecting money now the build the new church. The city council CONDEMS the LAND so they can sell it to Costco, because a church would be of "less" value to the people in the area and they don't like the church pushing people around. ????? Yes, true.

[Libertina]

CONDEMS
LOL oops... please make that CONDEMN, although the coucil members are liberals so they'd probably be into condoming the land as well! :)

[brityank]

I had read of that; hopefully something will get to the US Supreme Court, and a solid decision can develop that restricts Eminent Domain to needful public works -- not commercial ventures.

There's also a farm family in Coatsville. PA going through the same thing -- seems the town wants to steal their land for a golf course. PA is a funny place -- it isn't a State; it's a Commonwealth, so the land-use laws are a little funny. My take is they still have to abide by the US Constitution as it takes precedence over the state laws.

[teeman8r]

why won't the members of congress who passed such unconstitutional laws be held accountable and not the taxpayers??? is there someone i could call to get this done??? my congressman won't answer his phone.

[brityank]

Good Luck -- Tom.

As you no doubt know it's like screaming into the wind.
Maybe backhoe will avail us of his scream list? ;^)

Mike.

[hedgetrimmer]

We really must start working on repealing the unconstitutional laws the government uses to torment the American Citizen. We really must!

[madfly]

hey backhoe, I just clicked and there are no articles posted after Feb. 12th??? I'm hoping the recent ones you've added aren't missing.

To find all articles tagged or indexed using landgrab, click below:
	click here >>>	landgrab	<<< click here
(To view all FR Bump Lists, click here)

... to see just how much mischief has been "slipped in under your radar" while you weren't paying attention...

[madfly]

Thanks for the ping. Good to see you posting again.

[brityank]

... there are no articles posted after Feb. 12th???

There's a lot missing; did someone change the algorithms or do we have to put them in the Keyword list now?

[madfly]

... there are no articles posted after Feb. 12th???

There's a lot missing; did someone change the algorithms or do we have to put them in the Keyword list now?

Pinging the index gang, are you aware of this?

[Exigence]

Bump!