Today's commentary is by our colleage Thor Hearne, who regularly represents property owners in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. He recently joined us on the faculty of the ALI-ABA eminent domain program in San Diego, and spoke at the 2011 Brigham-Kanner Property Rights Conference in Beijing. He's familiar to our readers who have followed his success in "rails to trails" cases in the CFC. Thor reports on the latest developments in those cases below.
Thor recently posted this summary, noting that the U.S. Department of Justice had lost a series of 16 Trails Act cases in a row during the past 12 months, and now updates us with the most recent decision, this time from the Indiana Supreme Court, Howard v. United States, No. 94S00-1106-CQ-333 (Mar. 20, 2012), a case in which the state court answered a question certified to it by the Court of Federal Claims:
Under Indiana law, are railbanking and interim trail use pursuant to 16 U.S.C. § 1274(d) uses that are within the scope of the easements acquired by the railroad companies either by prescription, condemnation, or the deed at issue; and if either is not within the scope of the easements originally acquired, is railbanking with interim tr[ai]l use a shifting public use?
Slip op. at 1-2. The court answered "both parts in the negative. Under Indiana law, railbanking and interim trail use pursuant to 16 U.S.C. § 1274(d) are not uses within the scope of the easements, and railbanking with interim trail use does not constitute a permissible shifting public use."
Barista's note: we added the title to this post, a reference to the cliche supposedly originated by Albert Einstein that the definition of insanity is doing the same thing over and over again and expecting different results.
Thor writes:
In most of these cases the DOJ makes the – by now inane – argument that under state law, a public recreational trail is really the same as if a railroad was currently operating across the land because the federal STB could (under the federal Trails Act and not any provision of state-law) could maybe allow some unnamed railroad to build a railway line across this land in the future.
The Federal Circuit in an en banc decision (Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (en banc)) has rejected this argument, the Supreme Court in Preseault v. ICC, 494 U.S. 1 (1990) literally laughed this argument out of court. Numerous subsequent courts including the Federal Circuit in a series of decisions and the U.S. Court of Claims in an unbroken series of something like 20 or more decisions, have all rejected this specious argument. Now, the Indiana Supreme Court has added its weight to this settled point of law. In Howard, the Indiana Supreme Court issued a decision that overwhelming rejected the Justice Department’s argument that "railbanking" is a "railroad purpose."
The question one needs to ask is why on earth is the Justice Department continuing to spend millions of taxpayer funds trying to beat this long-dead horse. Hopefully, there is some "grown-up" at the Justice Department with the wisdom and authority to say, “enough is enough, we lost this argument and now we need to devote our resources to fairly compensating these landowners." Really, how many Supreme Courts need to reject the Justice Department’s specious argument before they finally give up? It is costing taxpayers millions to keep making an entirely specious argument. The Justice Department might as well repeatedly argue the world is flat in the hope that but simply repeating the argument it somehow gains merit.
Howard v. United States, No. 94S00-1106-CQ-333 (Mar. 20, 2012)
