Taking a Hike

Is the Supreme Court serious about property rights? Its decision in a case involving railroad easements could be a strong indication.

Preseault v. Interstate Commerce Commission challenges as an unconstitutional taking of property a federal statute that allows abandoned rights-of-way to be converted into public hiking trails. The decision, expected before the summer, will be the first major takings ruling since the landmark 1987 case Nollan v. California Coastal Commission. It gives the Court an opportunity to elaborate on its reasoning in Nollan, which held that conditions attached to a beach construction permit violated the Takings Clause. The coastal commission had tried to compel the plaintiffs to allow public passage through their property.

Similarly, Vermont residents Paul and Patricia Preseault argue that the 1983 "rails-to-trails" law violates their property rights by creating a public hiking trail on their land. The excuse for the incursion is a railroad right-of-way that was abandoned in 1975. Under the terms of the conveyance that permitted the railroad to use the property, the right-of-way expires when the railroad stops using it. But the 1983 statute gives the Interstate Commerce Commission the authority to supersede such contracts for the sake of outdoor recreation.

If the Supreme Court finds that a taking has occurred in the Preseault case, it may either call for compensation or invalidate the statute. The decision could affect thousands of property owners throughout the country, since many rights-of-way are based on conveyances intended exclusively for railroad use.

"The potential impact is tremendous," says John Groen, an attorney with the Pacific Legal Foundation, which represented the property owners in Nollan. "This is an opportunity to embellish on the Nollan decision…to send a message that the Takings Clause is alive and well, and it will be enforced."