Amicus Curiae Brief — Glosemeyer v. Missouri-Kansas-Texas Railroad

1989

NIOL, JR

IN THE i CLERK

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-564

MAURICE AND DOLORES GLOSEMEYER, et al.,

- Petitioners,

MISSOURI-KANSAS-TEXAS RAILROAD, et a/.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

Megtete—aD ERIE OF AMICI CURIAE

AMERICAN FARM BUREAU FEDERATION AND

MISSOURI FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER *

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

AMERICAN FARM BUREAU FEDERATION

225 Touhy Avenue

Park Ridge, Illinois 60068

(312) 399-5795

RON MCMILLIN

MISSOURI FARM BUREAU FEDERATION

211 E. Capitol Street

Post Office Box 235

Jefferson City, Missouri 65102-0235

(314) 636-2177

Attorneys for Amici Curiae

American Farm Bureau Federation

and Missouri Farm Bureau

Federation

* Counsel of Record

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-564

MAURICE AND DOLORES GLOSEMEYER, et al.,

Petitioners,

Vv.

MISSOURI-KANSAS-TEXAS RAILROAD, ¢? a/.,

Responde nts.

an,

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

IN SUPPORT OF PETITIONERS

The American Farm Bureau Federation (AFBF) and

the Missouri Farm Bureau Federation (MFFB) respect-

fully move for leave to file the attached brief amici curiae

in support of the Petition for Writ of Certiorari. In sup-

port of the Motion, Applicants state as follows:

1. The American Farm Bureau Federation (AFBF) of

Park Ridge, Illinois is a non-profit general farm organi-

zation incorporated pursuant to the laws of the State of

I}linois. Its purposes are to promote, protect and repre-

sent the economic, social and educational interests of

farmers and ranchers across the country. The largest

general farm organization in the United States, AFBF

has member state organizations in all 50 states and

Puerto Rico, representing the interests of more than 3.6

million member families. AFBF has a stated policy goal

to protect the private property rights of landowners abut-

ting abandoned railroad rights-of-way.

2. The Missouri Farm Bureau Federation (MFBF) of

701 S. Country Club Drive, Jefferson City, Missouri, is

a voluntary, non-profit general farm organization com-

prised of 111 affiliated county Farm Bureaus with a

membership of more than 77,000 member families. Its

purpose is to represent, serve and protect the interests

and rights of farmers and ranchers in Missouri, includ-

ing the protection of private property rights. MFBF has

a stated policy objective to protect the private property

rights of landowners in abandoned railroad rights-of-way

easements.

3. The protection of private property rights is of

paramount importance to farmers and ranchers across

the country. Many of those affected by the Rails-To-

Trails scheme, both in Missouri and throughout the na-

tion, are farmers and ranchers. Many of Petitioners

herein are MF BF members.

4. The Rails-To-Trails scheme strikes at the very

heart of the notion of private property rights. By seek-

ing to indefinitely postpone the property interests of

these landowners—interests that were freely bargained

for and defined by specific easement grants between their

predecessors in title and the railroads—the Rails-To-

Trails scheme expressly denies these private property

rights and alters those private agreements entered dec-

ades before.

5. Rails-To-Trails is a significant issue nationwide.

AFBF counsel have been directly involved in such at-

tempted conversions in nearly 20 states in every region

of the country. The issues presented here are of para-

mount importance not only to farmers and ranchers, but

to every private property owner across the United States.

6. AFBF and MFBF had actively participated as amici

curiae in this case both before the federal district court

eo

for the Eastern District of Missouri and the Eighth Cir-

cuit Court of Appeals. Moreover, AFBF has provided

organizational support and other assistance to Petitioners

at every stage in this proceeding.

7. AFBF and MFBF have also been actively involved

in other cases concerning rails-to-trails issues, including

the filing of briefs amici curiae in the Preseault case

pending in this Court.

WHEREFORE, Applicants AFBF and MFBF respect-

fully pray for leave to file briefs amici curiae in support

of the Petition for Writ of Certiorari and on the merits

if the Petition is accepted.

Respectfully submitted,

JOHN J. RADEMACHER *

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

AMERICAN FARM BUREAU FEDERATION

225 Touhy Avenue

Park Ridge, Illinois 60068

(312) 399-5795

RON MCMILLIN

MISSOURI FARM BUREAU FEDERATION

211 E. Capitol Street

Post Office Box 235

Jefferson City, Missouri 65102-0235

(314) 636-2177

Attorneys for Amici Curiae

American Farm Bureau Federation

and Missouri Farm Bureau

Federation

* Counsel of Record

Dated: October 30, 1989

TABLE OF CONTENTS

Page

yy VS Ba, we Livy % 3: yi —_ GeRRRReReRUneconunmnrrennerenCMninnin eS ii

INTEREST OF AMICI] CURIABS 20. cccvcieccreccscccccccessssssse 1

STATEMENT OF THE FAC ae wnccccecccciccccrccectcencteccoreens 3

pb ye | a ey ys ERE Pa Rene RRP Sew oOR. Deer NER nD RID MeN MS es 3

REASONS FOR GRANTING THE WRIT................... 5

I. THE ISSUE IS OF NATIONAL SCOPE AND

Be I viccschacecsectanarietss aie ede lem aeceseeader 5

Il. THERE IS UNCERTAINTY AMONG THE

CIRCUITS AND WITH THE ICC ...................... 6

Ill. RAILS-TO-TRAILS VIOLATES THE FIFTH

AMENDMENT PROHIBITION AGAINST

TAKING PRIVATE PROPERTY WITHOUT

Pid: ym et) fy 5+ 0 5 gt) Sc innnnce es cueenanm 7

A. Section 1247(d) “‘Takes” Private Property.. 7

B. The Statute Is Designed To Preclude Com-

pensation to Landowners for the Property

ONE Be BI issesamitesacuvcdscpiseasesianteiaens nations 9

IV. THE EIGHTH CIRCUIT APPLIED THE

WRONG STANDARD OF REVIEW TO THE

RAILS-TO-TRAILS SCHEME ............................. 11

V. SECTION 1247(d) IS NOT A RAILBANK

IPS FSW OW eccshccicvectnioorvnctalounipigacocienntsacemaplenmiaseiaals 11

A. “Railbanking” In Section 1247(d) Is Incon-

sistent With ICC Abandonment Authority

a I oo oon ca aeinceieataoeicaeoeieen 12

B. The Purpose of Section 1247(d) Is Develop-

ment of Recreational Trails _................... ae, 13

C. The Rails-to-Trails Scheme Itself Refutes

the “‘Railbank” Rationalization...........0..00.00.... 14

CAPE V GAEL TERIIE -cscsciccsecenscsiumnserdedanlcccacabdasnmmatsiiienenenne 17

li

TABLE OF AUTHORITIES

CASES Page

Connecticut Trust for Historic Preservation v.

BUC, G41 F.Be ETO (BG Cit. BOGGS oncccncccensiccnieo nee... 15

First English Evangelical Lutheran Church v.

County of Los Angeles, 481 U.S. 304 (1987)... 8

Hodel v. Irving, 481 U.S. 704 (1987) ............00....... 1,9

Kaiser Aetna v. United States, 444 U.S. 164

FSSA eRe aera Rega ren NNR ROR Dan ION 11

Loretto v. Teleprompter Manhattan CATV Corp.,

Ge SE ee CD witerenccctvetnnntiectedlecincaiicanne 8

Missouri-Kansas-Texas Ry. Co. v. Freer, 321 SW.

2d 731 (Mo. App. 1959)....... < EROS So Rtas er ane 3

National Wildlife Federation v. ICC, 850 F.2d 694

CT js MIR: ~ SIU = ius cccicitce icechiabincigndbise alana La baamet annie 6,17

Nollan v. California Coastal Commission, 483 U.S.

Bg I RR I Aer ele re en At ratte 7,11

Penn Central Transportation Co. v. City of New

go, BY Sik Me BY, | Sees yeni 8

Pollnow v. State Department of Natural Re-

sovrcer, 276 N.W. 2d 738 (Wisc. 1979) .............. 3

Preseault v. ICC, 853 F.2d 145 (2d Cir. 1988)... 4, 5,6

Ruckelshaus v. Monsanto Co., 467 U.S. 1017

PI IUPTE D sxsnecsaceshenneemnegsisesasennsansdtencbiossdiccnnabpelimue iniapsbuseieta 7,8

Schnabel v. County of DuPage, 428 N.E.2d 678

(Ill. App. 1981)

U.S. v. Causby, 328 U.S. 256 (1946) ..0.2000022000 7

Washinaton State Department of Game v. ICC,

$29 F.2d 877 (9th Cir. 1987) 00. 15

CONSTITUTION

Fifth Amendment to the U.S. Constitution ............ passim

STATUTES

Bae S a | | Si cee ena 3

16 U.S.C. 1247 (d) ........ iwaideceenapeunuaencencenseunpnnrogéadeaucsinsed passim

REGULATIONS

49 CFR 1152.29 0. <phaguudaaneua-sisaasonsesemmsiauenens 15

49 CFR 1152.29 (c) (2) ooo c ce eeeeeeeeeeeee eee 16

: |

iii

TABLE OF AUTHORITIES—Continued

Page

I nN ae 12

ESE Eee ese eer 13

MISCELLANEOUS

Availability and Use of Abandoned Rights-of-Way

House Report No. 98-28, p. 8-9 ..........2.2....22222222200eeeee 12

Bo A, | eee aele re SS aa artes SSE Sa a 4

H.R. Report No. 98-28, 98th Congress Ist Sess.,

NMED U1. cs coscucanedcioncuemesasnepsaounaaianbaiaenanadaheabenterhmnoate 14

M-K-T Abandonment, ICC Doc. No. AB-102 (Sub.

No. 13), March 6, 1987, pages 3 and 5 ................ 15

DOCU OE Tee is, BI. ennsccesnmercecctnccocssbtinicecxecoss 13

Rail Abandonments—Use of Rights-of-Way as

Trails, Ex Parte No. 274 (Sub No. 13), decided

I Fer ts I Bi ice eisrrencnteecdenecetcvnniricns 13

Rail Abandonments—Use of Rights-of-Way as

Trails, Ex Parte No. 274 (Sub. No. 13), decided

ne a ea asa 14

Rail Abandonments—Use of Rights-of-Way as

Trails, Ex Parte No. 274 (Sub. No. 13), decided

I as a NO histincdsacte atest corte 10

Rail Abandonments—Use of Rights-of-Way as

Trails—Supplemental Trails Act Procedures,

decided December 2, 1987 ..............................-...... 15

Rail Abandonments—Use of Rights-of-Way as

Trails: Supplemental Trails Act Procedures, 54

Fed. Reg. 8011, 8012 (1989) ................................ 12

Railroad Revitalization and Regulatory Reform

I A I eeewitctstecknscs cinonee sscolnaahk Aiacceliinieateddabeateataais 12

Transportation Code ...... laces PL eet eee adultes ae 13

cg |. a ee EN ieee Ne APPR RENe oP SSN 10

IN THE

Suprene Court of the United States

OCTOBER TERM, 1989

No. 89-564

MAURICE AND DOLORES GLOSEMEYER, et al.,

‘ Petitioners,

MISSOURI-KANSAS-TEXAS RAILROAD, ef al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

oe

BRIEF OF AMICI CURIAE

AMERICAN FARM BUREAU FEDERATION AND

— MISSOURI FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

The American Farm Bureau Federation-(AFBF) and

the Missouri Farm Bureau Federation (MFBF) respect-

fully move for leave to file the attached brief amici curiae

in support of the Petition for Writ of Certiorari. A Mo-

tion for Leave to file this brief Amici Curiae is attached.

INTEREST OF AMICI CURIAE

The American Farm Bureau Federation (AFBF) of

Park Ridge, Illinois is a non-profit general farm organi-

zation incorporated pursuant to the laws of the State of

Illinois. Its purposes are to promote, protect and repre-

sent the economic, social and educational interests of

farmers and ranchers across the country. The largest

g nerai farm organization in the United States, AFBF

, , |

2

has member state organizations in all 50 states and

Puerto Rico, representing the interests of more than 3.6

million member families. AFBF has a stated policy goal

to protect the private property rights of landowners abut-

ting abandoned railroad rights-of-way.

The Missouri Farm Bureau Federation (MFBF) of

701 S. Country Club Drive, Jefferson City, Missouri, is

a voluntary, non-profit general farm organization com-

prised of 111 affiliated county Farm Bureaus with a

membership of more than 77,000 member families. Its

purpose is to represent, serve and protect the interests

and rights of farmers and ranchers in Missouri, includ-

ing the protection of private property rights. MFBF has

a stated policy objective to protect the private property

rights of landowners in abandoned railroad rights-of-way

easements.

The protection of private property rights is of para-

mount importance to farmers and ranchers across the

country. Many of those affected by the Rails-To-Trails

scheme, both in Missouri and throughout the nation, are

farmers and ranchers. Many of Petitioners herein are

MFBF members.

The Rails-To-Trails scheme strikes at the very heart of

the notion of private property rights. By seeking to in-

definitely postpone the property interests of these land-

owners—interests that were freely bargained for and

defined by specific easement grants between their pre-

decessors in title and the railroads—the Rails-To-Trails

scheme expressly denies these private property rights and

alters those private agreements entered decades before.

Rails-To-Trails is a significant issue nationwide. AF BF

counsel have been directly involved in such attempted

conversions in nearly 20 states in every region of the

country. The issues presented here are of paramount

importance not only to farmers and ranchers, but to every

private property owner across the United States.

3

AFBF and MFBF had actively participated as amici

curiae in this case both before the federal district court

for the Eastern District of Missouri and the Eighth Cir-

cuit Court of Appeals. Moreover, AFBF has provided

organizational support and other assistance to Petitioners

at every stage in this proceeding.

AFBF and MFBF have also been actively involved in

other cases concerning rails-to-trails issues, including the

filing of briefs amici curiae in the Preseault case pending

in this Court.

STATEMENT OF FACTS

The facts are as set forth by Petitioners. Most of the

easements at issue here were negotiated prior to 1900,

and specifically limit use of the right-of-way to railroad

use.

INTRODUCTION

Beginning in the middle of the 19th century, our na-

tion embarked on an aggressive policy of building a rail

network linking all parts of the country. Railroads often

obtained rights-of-way by negotiating easements from pri-

vate landowners, such as Petitioners, for use as corridors

for strictly railroad purposes.

In 1968, Congress enacted the National Trails System

Act [16 U.S.C. 1241 et seg.] to increase recreational trail

opportunities.

By 1983, Congress noted a “problem” with obtaining con-

version of abandoned right-of-way for trails. That “prob-

lem” is well-settled state law' which states that a limited

use railroad easement automatically lapsed when the

property is no longer used for the intended purpose,

restoring full title to the grantor landowners. The Rails-

1E.g., Missouri-Kansas-Teras Ry. Co. v. Freer, 321 SW. 2d

721 (Mo. App. 1959); Pollnow v. State Department of Natural

Resources, 276 N.W.2d 728 (Wisc. 1979); and Schnabel v. County

of DuPage, 428 N.E. 2d 678 (Ill. App. 1981).

4

To-Trails section [16 U.S.C. 1247(d)] was thus added to

the National Trails System Act to remedy this “problem.”

Section 1247(d) denies the interests of private land-

owners by two means: First, it makes the inherently il-

logical finding that recreational trail use is somehow a

“railroad use.”* Second, it preempts established state

law, which provides that easements are extinguished when

the railroad use of the property ceases.

Section 1247(d) thus seeks to legislatively extend the

property interest of the railroad beyond the automatic

expiration set forth in the easement grant, at the expense

of the rights of the private landowners. The statute

makes no provision for compensation to these landowners,

and contemplates none. In fact, the statute is premised

on tenuous assumptions that must expressly deny land-

owner compensation.

At least three federal Circuit Courts of Appeals have

considered various aspects of the issue, with three differ-

ent results. The Second Circuit, in Preseault v. ICC, 853

F.2d 145 (2d Cir. 1988), cert. granted, 57 USLW 3804

(1989), held that Rails-To-Trails could never be a “tak-

ing.” By contrast, the D.C. Circuit held that rails to trails

regulations could in some circumstances result in a Fifth

Amendment taking, National Wildlife Federation v. ICC,

850 F.2d 694 (D.C. Cir. 1988). The Eighth Circuit below

made no finding on the Fifth Amendment issue, stating

that any remedy must be pursued in the Claims Court in-

stead. Meanwhile, in the face of this judicial uncertainty,

the ICC is blithely proceeding to allow creation of new

trails every day, at the expense of landowners everywhere.

? This “key finding” “alone should eliminate many of the prob-

lems with this program. The concept of attempting to establish

trails only after the formal abandonment of a railroad right-of-way

is self-defeating; once a railroad right-of-way is abandoned for

railroad purposes there may be nothing left for trail use.” (House

Report No. 98-28, p. 8-9)

him

‘

5

REASONS FOR GRANTING THE WRIT

I. THE ISSUE IS OF NATIONAL SCOPE AND IM-

PORTANCE

The Rails-To-Trails Conservancy estimates that there

are approximately 150,000 miles of rail lines across the

country. It also estimates that between 2,500 and 5,000

miles of these lines are abandoned every year. Trail ad-

vocates are increasingly using section 1247(d) to prevent

return of these abandoned lines to their rightful owners

by seeking their use as recreational trails. Farmers,

ranchers and other abutting landowners are increasingly

aware that they have rights to these abandoned corridors

as a result of the terms of easements granted by their

predecessors in title decades before. The undersigned

AFBF counsel is personally working with landowners in

nearly 20 states across the country who are being ad-

versely affected by this scheme.

These cases are in various stages of administrative

and judicial review. As indicated above, the signals com-

ing from the federal Circuits that have addressed some

of the substantive issues of the problem are mixed or

confusing at best. Rather than prudently waiting for the

judicial dust to settle, the ICC is forging ahead to ef-

fectuate trail conversions, often stretching even the

bounds of the statute and its own regulations. The rights

of private landowners are being adversely affected with

every new ICC decision on the subject.

The case is not about the merits of additional recrea-

tional trails. It is about the methods employed to obtain

those trails. It is about private property rights and land-

owners whose valid, vested rights are being ignored and

trampled in the rush to create new trails.

This Court recognized the importance of the property

rights issue involved by accepting the Preseault case for

review this term. The large number of amicus curiae

briefs filed in that case—including ones from AFBF and

6

MFBF—attest to the great interest from all sides in

this issue.

The many pending cases both before agencies and the

lower courts demand a full resolution of the issue. This

case presents the issue from a different perspective than

that in Preseault. Review of both aspects presented by

these two cases will provide full resolution of the many

issues that need to be decided.

IL THERE IS UNCERTAINTY AMONG THE CIR-

CUITS AND WITH THE ICC

We have indicated above that three federal Circuit

Courts of Appeal have reviewed various aspects of this -

issue. That confusion is detailed in the Brief of Peti-

tioners. Everyone affected by Rails-To-Trails is looking

for a definitive resolution.

The Eighth Circuit decision below merely adds to the

confusion. It says that the appropriate remedy is in the

Claims Court for compensation. The D.C. Circuit on the

other hand, in direct conflict with the decision below, says

that 1247(d) “not only does not authorize the Commis-

sion to ‘condemn’ or ‘take’ railroad property, it does not

specify any procedures to be used in appropriating such

property and provides no guarantee of just compensa-

tion.” *

It is also noteworthy that several of these cases, includ-

ing this one, began in the state courts as quiet title ac-

tions. They were removed to federal court on the basis

of the federal statute involved. One of the bases for re-

moval is a uniform application of this statute. To date,

that uniformity has not materialized throughout the Cir-

cuits. Only this Court can provide the direction needed.

3 National Wildlife Federation, supra, at 700.

7

III. RAILS-TO-TRAILS VIOLATES THE FIFTH AMEND-

MENT PROHIBITION AGAINST TAKING PRIVATE

PROPERTY WITHOUT JUST COMPENSATION

The Fifth Amendment to the U.S. Constitution pro-

vides: “nor shall private property be taken for public use

without just compensation.” Statutes which (a) effect

a “taking” of private property for public use, and (b)

preclude compensation to affected parties, violate the

Fifth Amendment and must be invalidated. See Ruckels-

haus v. Monsanto Co., 467 U.S. 1017 (1984) and Hodel

v. Irving, 481 U.S. 704 (1987). Section 1247(d) does

both.

A. Section 1247(d) “Takes” Private Property

A fundamental principle of real property law is that

a party cannot transfer an interest that it does not have.

Another fundamental principle is that that interest is

defined by the operative deed/grant.

The analysis is simple—by means of the easements,

MKT no longer has an interest in the right-of-way once

abandonment criteria are satisfied. By legislative fiat,

section 1247(d) gives MKT the right to retain the ease-

ment for purposes of disposal to trail groups, at the ex-

pense of the interests of the landowners who would have

reclaimed their property upon abandonment. Section

1247(d) “takes” a new easement from the landowners in

favor of the abandoning railroad, bringing the Fifth

Amendment into play. See U.S. v. Causby, 328 U.S. 256

(1946).

“Taking” of just such an easement was held unconsti-

tutional in Nollan v. California Coastal Commission, 483

U.S. 825 (1987). Because it involved a regulatory tak-

ing, that case is not as close as the case at bench. The

Court said:

“Had California simply required the Noilans to make

an easement across their beachfront available to the

public on a permanent basis . . . we have no doubt

8

there would have been a taking. To say that the ap-

propriation of a public easement across a landown-

er’s premises does not constitute the taking of a

property interest . . . is to use words that deprive

them of all their ordinary meaning. Indeed, one of

the principal uses of the eminent domain power is to

assure that the government be able to require con-

veyance of just such interests, so long as it pays for

them.” *

The Court continued: “Perhaps because this point is

so obvious, we have not been confronted with a contro-

versy that required us to rule on it.”

This case presents that “controversy.”

“Takings” are more readily found when there is a

physical invasion of the property. Penn Central Trans-

portation Co. v. City of New York, 438 U.S. 104 (1974);

First English Evangelical Lutheran Church v. County of

Los Angeles, 482 U.S. 304 (1987) and Loretto v. Tele-

prompter Manhattan CATV Corp., 458 U.S. 419 (1982).

This Court has recently said:

“We think a ‘permanent physical invasion’ has oc-

curred for purposes of that rule, where individuals

are given a permanent and continuous right to pass

to and fro, so that the real property may continuously

be traversed, even though no particular individual is

permitted to station himself permanently on the

premises.” *

This is precisely the situation presented here with rec-

reational trails.

Moreover, this Court has consistently held that the

“property interests” subject to the Fifth Amendment are

defined by state law. See Ruckelshaus, supra. As indi-

cated above, state law vests property in the landowners

upon a finding of abandonment. By preempting state law

497 L.Ed. 685.

5 Nollan, supra, 97 L.Ed.2d at 686.

9

for the express purpose of altering that result, section

1247(d) “takes” the landowners interests.

There is no doubt that section 1247(d) “takes” private

property.

B. The Statute Is Designed to Preclude Compensation

to Landowners for the Property That Is Taken

The Eighth Circuit assumed for purposes of analysis

that section 1247(d) “took” Petitioners’ property. Its

fundamental mistake is its ruling that compensation is

available to petitioners through the Claims Court. This

issue is very important to determine the scope of the Fifth

Amendment.

Statutory invalidation is appropriate where Congress

has expressly or impliedly precluded compensation. Hodel

v. Irving, supra. As in Irving, section 1247(d) is silent

on the issue. An examination of the purpose, intent and

application of 1247(d) clearly shows that compensation

to landowners is precluded.

First, its stated purpose was to remove the “problems”

of landowner reversion that might hinder trail develop-

ment. See p. 3, supra. It was to accomplish this by pre-

empting state law that expressly recognized such rights.

The law treats landowner rights as if they do not exist.

If such rights (including a right to compensation) were

even acknowledged, there would have been no reason for

enactment of the law in the first place. Thus, section

1247(d) requires that landowner rights must necessarily

be denied. Mere enactment of section 1247(d) to change

existing law involves a denial of just compensation.

Second, the law is premised on continued ownership of

the line by the railroad. The entire scheme depends on

the disposition by the railroad to trail groups, and pay-

ment by such groups to the railroad. It seeks to extend

the railroad easement by stating that abandonment may

not occur if interim trail use is desired—a clumsy and

illogical attempt to retain ICC jurisdiction over the line,

and hence continued railroad ownership.

10

The very essence of the law being the continued owner-

ship by the railroad, the rights of private owners must

necessarily be disavowed in order for the scheme to work.

To allow or infer a “just compensation” remedy would

recognize possible jandowner rights and thus destroy the

very essence of the section 1247(d).

To engraft a just compensation remedy on section

1247(d) would mean that compensation would have to be

paid twice for each right-of-way—once by the government

to the landowners pursuant to the Fifth Amendment and

also by the trail users to the railroad. We do not think

that Congress intended such an absurd result.

Third, the 1CC has admitted that it has no authority to

pay compensation under this scheme. The Commission

stated:

“To recover under the Tucker Act, the Government

must be authorized by Congress to take the action

giving rise to the Tucker Act suit. We have con-

cluded that the Trails Act does not authorize con-

demnation of rights-of-way.” (Emphasis added) °

In the same decision the ICC says: ‘The landowners fee

interests cannot be taken under the Trails Act because the

power to condemn any interest in land has not been dele-

gated to us under the statute.” *

Without that authority to condemn, a “just compensa-

tion” remedy is not available.

It is therefore not surprising that the D.C. Circuit held

that just compensation was not a viable remedy in this

situation.* The Eighth Circuit below failed to consider

these factors in holding otherwise.

6 Rail Abandonments-—Use of Rights-of-Way as Trails, Ex Parte

No. 274 (Sub No. 13), decided August 13, 1986, page 5.

T Op. Cit., page 4.

8 See page 6, supra.

11

IV. THE EIGHTH CIRCUIT APPLIED THE WRONG

STANDARD OF REVIEW TO THE RAILS-TO-

TRAILS SCHEME

If section 1247(d) is not a “railbank” statute as its

proponents claim, it cannot be sustained on the basis of

the Commerce Clause within the railroad regulatory

framework in which it operates.°

In reviewing this important factor, the Eighth Circuit

only applied the “rational basis test.” In cases where

Fifth Amendment takings are involved, however, Nollan

requires more. The Court reiterated a stricter standard

of review in such cases: “[WlJe have required that the

regulation ‘substantially advance’ the ‘legitimate state

interest’ sought to be achieved, not that the State ‘could

rationally have decided’ the measure adopted might

achieve the State’ objective.” '°

Nollan therefore requires looking behind the stated

purpose of a statute to determine its real purpose, and

whether the confiscatory action advances that purpose. A

mere “rational basis test” is no longer sufficient. Section

1247(d) must therefore be examined in that light.

V. SECTION 1247(d) IS NOT A RAILBANK STATUTE

Even a cursory look at section 1247(d) shows that it

cannot be sustained on the basis of a “railbank” objective.

First, railbanking itself is a chimerical concept. Any

railroad that has taken the time and expense to pursue

abandonment, take up tracks, discontinue tariffs and re-

route traffic is not likely to incur the exorbitant costs to

re-start service over a line that has been abandoned.

Users of the abandoned line will have found other trans-

portation arrangements. New industry to the affected

® Even if 1247(d) is found to be a valid exercise of the Commerce

Clause, however, it can still be found in violation of the Fifth

Amendment “takings” clause. See Kaiser Aetna v. United States,

444 U.S. 164 (1979). 7

10 Nollan, 483 U.S. at 834 (emphasis in original).

1z

area will also have arranged other ways to satisfy their

transportation needs.

Second, at the time of enactment of 1247(d) there was

no national policy of “railbanking” as cited in the law.

It is true that the idea was studied by the Department

of Transportation, but the concept was rejected. (See

Availability and Use of Abandoned Railroad Rights-of-

Way, DOT, 1977.) The DOT concluded that there was

no demand for railbanking, precisely for the reasons cited

above. The limited railbanking provisions enacted by the

Railroad Revitalization and Regulatory Reform Act of

1976 were repealed in 1980. Not only was there no such

national policy, but policy was actually opposed to it.

A. “Railbanking” In Section 1247(d) Is Inconsistent

With ICC Abandonment Authority and Jurisdiction

Proponents define “railbanking” as the preservation

of lines for some nebulous and uncertain possibility that

they might perchance again be used for rail use some-

time in an undefined future.

Yet 49 U.S.C. § 10903 requires ICC to permit aban-

donment “only if the Commission finds that the present or

future public convenience and necessity require or permit

the abandonment or discontinuance.” (Emphasis added).

“Future” public convenience and necessity necessarily in-

cludes a determination whether or not the line is needed

for future rail use—the very essence of “railbanking.”

The paradox is that ICC can only invoke 1247(d)

after finding that present or future public convenience

and necessity requires abandonment. As ICC says: “In

every Trails Act case, we will already have found that

public convenience and necessity permit abandonment.” ™

The ICC recognized the inherent inconsistency of 1247(d)

11 Rail Abandonments: Use of Rights-of-Way as Trails: Supple-

mental Trails Act Procedures, 54 Fed. Reg. 8011, 8012 (1989).

13

with its long standing traditional authority under the

Transportation Code:

“However, the amendment appears to conflict with

the Commission’s statutory responsibilities under 49

U.S.C. § 10904. Under 49 U.S.C. § 10904, if the pub-

lic convenience and necessity require or permit aban-

donment of a rail line or discontinuance of rail serv-

ice, it must, within a specific time, issue a certificate

permitting abandonment or discontinuance. Under

16 U.S.C. § 1247(d), if a party seeks to use the un-

derlying right-of-way for a trail and is willing to

comply with certain requirements, the Commission

may not permit an abandonment or discontinuance

‘inconsistent’ with trail use.”

While ICC has yet to resolve these inherent conflicts,

it nevertheless is approving new trails all the time.

B. The Purpose of Section 1247(d) Is Development of

Recreational Trails

“This purpose, if one goes along with the ICC, is ex-

pressly to preserve ROW’s for ‘future rail operations’—

a complete myth if there ever was one, and both sides

know it.” '* This statement, by the trails proponents,

accurately summarizes the feelings of Congress, the ICC,

and all parties affected by 1247(d). This is a trails law,

not a railbank statute. Several factors illustrate this

conclusion.

First, the statute itself states that its purpose is to

“encourage State and local agencies and private interests

to establish appropriate trails using the provisions of pro-

grams such as rail programs.” It directs the ICC to

“not permit abandonment or discontinuance inconsistent

or disruptive of such {interim trail] use.” It was added

12 Rail Abandonments—Use of Rights-of-Way as Trails, Ex Parte

No. 274 (Sub No. 13), decided February 11, 1985, page 2.

13 Newsletter of BSTRA, Inc. and the Southern New England

Trails Conference, Sept. 1986, p. 2.

14

to the National Trails System Act, not to the Transpor-

tation Code with which it is inherently inconsistent.

The House Report accompanying section 1247(d)

states:

“The concept of attempting to establish trails only

after the formal abandonment of railroad rights-of-

way is self-defeating; once a right-of-way is aban-

doned for railroad purposes there is nothing left for

trail use. This amendment would ensure that interim

trail use is considered prior to abandonment.’

The ICC admits the true purpose of the law even more

bluntly:

“This language demonstrates that the main purpose

of the amendment is to remove reversion as an ob-

stacle that hinders or prevents the successful conver-

sion of entire linear rights-of-way to recreational

uses when the rights-of-way have been operated un-

der easements for railroad purposes. Thus, Congress

intends that trail use occur and rights-of-way remain

intact when they otherwise would be subject to re-

versionary interest.” '

The transparency of any lofty “railbanking” goals is

thus shattered by the candid admissions of the body that

enacted the law and the agency entrusted with its en-

forcement.

C. The Rails-to-Trails Scheme Itself Kefutes the “Rail-

bank” Rationalization

The scheme itself demonstrates that the true purpose

of the law is to develop recreational trails, and has noth-

ing to do with “railbanking.”’

a. There is no requirement that ICC find a line that is

proposed for abandonment suitabie or necessary for rail-

14H. Rep’t No. 98-28, 98th Cong. Ist Sess., page 8.

15 Railroad Abandonments-—Use of Rights-of-Way as Trails, Ex

Parte 274 (Sub No. 13), served May 6, 1986, page 7.

15

banking.'® In fact, the opposite finding is required (see

p. 12, supra). ICC has even expressly indicated that it

will not determine whether “railbanking” is feasible.’

Rather, ICC will only determine whether the Trails Act

is applicable. Without at least this nexus, railbanking

must be considered only a facade for the real purpose of

the law.

b. Only parties interested in developing trails have

authority to invoke section 1247(d). [49 CFR 1152.29].

Not only does neither the ICC nor the railroad have au-

thority to invoke the statute, but such decisions are left

solely to those who have no interest in future rail use

of the line. In order to preserve their trails, such groups

would not want to see resumption of the line. “ » such

decisions are made, not on the basis of railbanking, but

on the suitability of the line as a trail.

ce. Once trail interest is expressed, the decision to trans-

fer is voluntary with the railroad. See National Wildlife

Federation v. ICC, supra; Washington State Depart-

ment of Game v. ICC, 829 F.2d 877 (9th Cir. 1987) and

Connecticut Trust for Historic Preservation v. ICC, 841

F.2d 479 (2d Cir. 1986).

This decision does not require any commitment by the

railroad to even consider a resumption of service in the

future. Rather, the law allows the railroad to receive a

windfall for a right-of-way that they have already aban-

doned. The windfall is at the expense of the landowners.

Moreover, the law allows the railroad to leave bridges

and trestles that it would otherwise cost exorbitant

amounts to remove. Thus, decisions to pursue trail use

16 Tn fact, in this particular case, the opposite finding was made.

The ICC found the line was subject to flooding and major repairs

would have to be done. See M-K-T—Abandonment, ICC Dock. No.

AB-102 (Sub No. 13) March 6, 1987, pages 3 and 5.

17See Rail Abandonments—Use of Rights-of-Way as Trails—

Supplemental Trails Act Procedures, decided December 2, 1987.

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future rail use. In any event, future resumption of

service over an abandoned line is remote at best and vir-

tually nil.

In National Wildtife, the D.C. Circuit was “unable,

therefore, to conclude that existing precedent provides

that the rights of those who have an interest in railroad

property may be frustrated indefinitely in order to pre-

serve the possibility, however slight, that rail service may

be resumed in the future.” 850 F.2d at 708.

CONCLUSION

Nearly 100 vears ago, Petitioners’ predecessors in in-

terest in good faith granted a right to a railroad to use

their property to operate a railroad. That line stopped

running several years ago.

Under the easement, Petitioners should now have their

property back. Yet when they tried to reclaim it they

were prevented from doing so by a federal statute which

decrees that the land now belongs to a trail group to use

in a manner that has nothing to do with railroad use.

Section 1247(d) is a transparent and convoluted at-

tempt to make sure that Petitioners are deprived of their

private property rights in the right-of-way. To achieve

that purpose, it had to make the illogical and inherently

contradictory finding that recreational trail use is some-

how a “railroad use.” Similar scenes are being played

out across the country. ICC and trail users continue t

ignore valid, vested property rights. Numerous cases

have been filed to protect and reclaim those rights.

The Fifth Amendment “takings” clause was specifically

added to the U.S. Constitution to protect private citizens

from having their property rights so blatantly and cav-

alierly tramp'ed. Justice and the Fifth Amendmeni: de-

mand that section 1247(d) be invalidated.

The decision below ducks the issue. It fails to recog-

nize that compensation is not the answer in all cases,

especially where the statute expressly denies such rights.

18

AFBF and MFBF respectfully request that the Peti-

tion for Writ of Certiorari be granted.

Dated: October 30, 1989

Respectfully submitted,

JOHN J. RADEMACHER *

Genera! Counsel

RICHARD L. KRAUSE

Assistant Counsel

AMERICAN FARM BUREAU FEDERATION

225 Touhy Avenue

Park Ridge, Illinois 60068

(312) 399-5795

RON MCMILLIN

MISSOURI FARM BUREAU FEDERATION

211 E. Capitol Street

Post Office Box 235

Jefferson City, Missouri 65102-0235

(314) 636-2177

Attorneys for Amici Curiae

American Farm Bureau Federation

and Missouri Farm Bureau

Federation

* Counsel of Record