Conservative Property Rights Movement Threatens "Rails to Trails" Program

| Wed Sep. 4, 2013 10:59 AM EDT
The White River state rail trail near Burlington, Vermont.

The Rails-to-Trails program has long been a government program everyone can love. In 1983, Congress created the feel-good program to convert abandoned rail tracks into hiking and biking trails for public use. Not only did the program re-purpose ugly abandoned trackwork, but it did it on the cheap. When Congress passed the measure into law, the Congressional Budget Office found that it wouldn't cost federal taxpayers a dime. The railroad usually pulls up the tracks and leases or donates the corridor to a trail agency that puts it into public use for recreation, while reserving the right to turn the trail back into a railroad track at some point in the future.

Since the program was created, 20,000 miles of unused train tracks have been converted into recreational trails. But these days, anything involving a bike, it seems, is a ripe target for conservative ire. Thanks to some creative work by conservative property rights groups, the cost of the formerly cheap program has grown exponentially, largely because of lawsuits by property owners who own land next to the railways and claim that putting bikes instead of trains on the corridors constitutes a "taking" by the government for which they should be compensated. Jenna Greene at the National Law Journal tells the story here.

Historically, the sorts of takings that conservatives have been peeved about involve such cases as a municipality using its eminent domain power to seize someone's house or run-down apartment building and giving it to shopping mall developers or a big drug company, or when the EPA takes land to create habitat for an endangered species. But the rail-to-trail cases are somewhat different. According to Greene, just in the past year, the federal government has paid out nearly $50 million in settlements to property owners to compensate them for the conversion of private railroad property to trails, even when the landowners get to keep the land.

The problem stems from a fairly egregious example of judicial activism in a case filed by Vermont's Presault family. They were angry that a rail conversion had brought a steady stream of cyclists and backpackers across their land where trains used to travel, even though they knew the rail bed was at risk of becoming a trail when they bought the land. Backed by the conservative New England Legal Foundation, they spent eight years fighting the trail all the way to the US Supreme Court, challenging the rail-to-trail statute as unconstitutional and demanding compensation for the cyclists' intrusion. The high court disagreed with them and found the law valid, but it did allow the Presaults to pursue their damages claim. They lost, however, before the Court of Federal Claims, which said they weren't entitled to any money. A a three-judge panel of the US Court of Appeals for the Federal Circuit came to the same conclusion. 

But weirdly, the Federal Circuit later decided all on its own to have the full circuit hear the case again, and this time, it found in the Presaults' favor. Perhaps it was no coincidence that four of the six judges who voted to give the family $350,000 in damages (plus almost $900,000 to their lawyers) had recently attended an all-expense paid junket to a legal seminar at a Montana resort sponsored by the same conservative foundations bankrolling the Presaults' litigation. Donors to the seminars included the Olin Foundation, which also supported the New England Legal Foundation, and, of course, the Koch brothers, the oil and gas magnates who fund a host of conservative causes.

That decision set off a wave of litigation by property owners demanding to be compensated for the horror of having bikes running on the abandoned train bed on their land. Judges who've never seen a consumer protection class action they could certify have been regularly allowing class actions by property owners over rail-to-trail conversions. Greene reports that the government has been losing all of these cases, and paying out some huge settlements, including one this year in South Carolina for $33.5 million, which amounted to more $1 million per mile of trail. There are 8,000 such claims in the pipeline, potentially turning the affordable trail program into a very expensive giveaway to private landowners courtesy of federal taxpayers. 

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