By William Perry Pendley, 
President and Chief Legal Officer, Mountain States Legal Foundation

6/12/02

(PFNS) 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, taking it 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 contracts 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 they may abandon rail service only if they transfer the easement for that purpose.

That is what happened to the Preseaults. The Vermont Railway traversed their land near the shore of Lake Champlain in northern Vermont. 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 the United States must write, it could have been worse; the $900,000 in attorneys' fees covers only the litigation that began in December 1990. However, 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!

PFNS is a public service of the Paragon Foundation, Alamogordo, NM 1-877-847-3443