S. Mike Gentine (J.D. The George Washington University School of Law, 2012) recently published his article entitled Riding the Trails to Bad Law: The Inevitably Unjust Results of the National Trails System Act And Current Takings Jurisprudence, 47 Real Prop. Tr. & Est. L.J. 173 (2012). The introduction to the article is below:
Since 1968, Congress has searched for an effective legal means to turn disused or outright abandoned rail lines into publicly accessible walking, hiking, or biking trails. Congress's first attempt was the National Trails System Act (NTSA). When this effort proved ineffective at building the hoped-for national spider web of walkability, Congress tried again, this time attempting to nudge rail companies into offering their rights-of-way for public sale by allowing the Interstate Commerce Commission (ICC) to delay the companies' legal abandonment of the property if they did not make the offers. This, too, was unsuccessful because companies could not possibly comply with the request; the lines were mostly on property the rail companies acquired through easements or other property rights short of fee simple, and when the railroads abandoned the lines, state property laws could require the instant return of the property to its original owners.
The next and current program, the amended NTSA, appeared in 1983. Under this scheme, when a railroad petitions for legal recognition of its abandonment of a line, anyone interested in converting that line to a public trail can apply for a Notice of Interim Trail Use or Abandonment (NITU) or a Certificate of Interim Trail Use or Abandonment (CITU). These processes operate identically and differ only in the formal classification of the underlying abandonment proceeding (for simplicity, this article will use NITU throughout to encompass both forms). An application for an NITU could result in a direct transfer to the trail operator, which may shut out the future interest holder.
At least in the Federal Circuit, the settled law for years has been that a successful negotiation under an NITU--one that transfers the easement to a trail operator rather than allowing it to revert to the future interest holder--is a taking within the meaning of the Fifth Amendment. However, cementing the idea that an NITU creates a taking left at least three related questions. First, when does the claim for a taking accrue? Second, how long does a future interest holder have to assert that claim? Third, for what portion of that intervening time is the government liable for compensation?
In a series of cases spanning six years, the Federal Circuit has answered each of these questions, but the answers have produced a troublesome reality in which both NITU negotiations and the resulting takings litigation can take several years and the total taxpayer cost of acquiring a right to walk the trails can be absurd. This article briefly discusses the Preseault cases, which led to the conclusion that an NITU does take property. Part II examines the congressional history of the NTSA. Part III discusses the development of rail line abandonment law and NTSA jurisprudence, including a thorough look at Ladd v. United States. Part IV analyzes the legal and practical flaws in that jurisprudence, most notably the functional impossibility of applying Ladd literally. Finally, Part V offers three potential solutions to this troublesome legal climate and discusses the limitations of solutions other scholars have offered.
This article proposes development (either judicial or legislative) of a compensation scheme that both better protects landowners and better accomplishes the goal of the rails-to-trails concept. This scheme will require a rethinking of Federal Circuit cases like Caldwell v. United States and Barclay v. United States and a review of Ladd. The result, hopefully, will be a legal regime in which the government fully and fairly compensates landowners pursuant to the Fifth Amendment; the litigation process is faster and simpler; and rails will be able to turn to trails more quickly.