Following up on our post earlier this week with our amicus brief, here are the remainder of the briefs filed in the Federal Circuit in a case in which the government is asking the court to bypass panel hearing and go straight to en banc review of a Court of Federal Claims opinion which held that the owners of a railroad easement which was converted to a recreational path are owed $900 in just compensation, plus EAJA fees.
Why all this sturm und drang (as the Federal Circuit once characterized rails-to-trails cases) over 900 bucks?
As we wrote in our earlier post, this is the government's attempt to wipe out established regulatory takings doctrine and get the Federal Circuit to effectively overrule its prior decisions holding the government liable for physical takings when it prevents reversion of the railroad easement to private owners when those easements are no longer used for railroad purposes, even if those takings are not permanent. Here, the government asks the Federal Circuit to abandon the per se physical takings test and instead apply the ad hoc regulatory framework when the taking is not "permanent."
Here are the other briefs:
What we found most disturbing about this effort was the government's complaint that these darn recreational trails are costing money. The doctrine "encourages litigation!" And when property owners have to sue to enforce their rights, they get attorneys fees, "guaranteed!" See Op Br at 2. The nerve!
Our response: if you don't want to pay for these things, don't take them.
Stay tuned.
