Arent Fox LLP announced today that the US Court of Appeals for the Federal Circuit has reversed a lower court decision and ordered the federal government to pay Arizona ranchers for property it has taken from them.
The case began in 2006 when the federal Surface Transportation Board issued an order authorizing a railroad to sell a 76.2 mile-long abandoned railroad easement so that it may be turned into a public recreational trail. The trail was never built, however, and these Arizona ranchers’ land is “now used by illegal aliens and drug smugglers and patrolled by the US Border Patrol.” The federal order affected almost 2,000 acres of land in Arizona. The lead Plaintiff, Jack Ladd, was recently featured by National Public Radio (NPR) in a report about the violence occurring along this part of the US – Mexico border.
The Arizona ranchers would rather have their land back so they could fence the property and prevent it from being used as a route for drug smuggling and illegal immigration. However, federal law does not allow them to challenge the government’s order. Their only recourse is to seek payment for the land taken.
“The federal Trails Act has literally created a ‘trail of tears’ for these Arizona ranchers and their families. Their land was taken without their consent. The least they can expect is to be fairly compensated for what the government has taken. We are grateful that, by this decision, the Federal Circuit has sent a very clear message, the Fifth Amendment is alive and well and these families will be paid for property the federal government has taken from them,” said Arent Fox partner Thor Hearne. Hearne is a nationally known authority in constitutional and eminent domain litigation and represents these Arizona ranchers and argued their case in the Federal Circuit. “We are very pleased with the court’s decision. It is a fundamental right of citizens under the Constitution to receive just compensation when their property is taken by the government for public use. Judge Moore’s decision was exceptionally clear and well-reasoned. The court directed the government to now pay these citizens for the property it has taken.”
The US Justice Department had argued that, even though the federal government’s order destroyed these rancher’s right to their property under Arizona law, the government did not need to pay them because a public trail had not yet been built – and may never be built.
The Court of Appeals rejected the Justice Department’s claim the government did not need to pay for the property because the recreational trail had not been built. “We reject the government’s present suggestion that the [government’s order] is nothing more than a temporary regulatory hold on the railroad’s authority to abandon its railway,” the Court wrote. “Where no trail use agreement is reached, the taking may be temporary. However, physical takings are compensable, even when temporary.” The Court of Appeals continued, “It is irrelevant that no trail use agreement has been reached and that no recreational trail has been established.”
“It is settled law that a Fifth Amendment taking occurs in Rail-to-Trails cases when government action destroys state-defined property rights by converting a railway easement to a recreational trail,” wrote Judge Kimberly A. Moore for the unanimous appeals court in Ladd, et al. v. United States. “A taking occurs when state law reversionary property interests are blocked. The [federal government’s order] is a government action that prevents the landowners from [having] possession of their property unencumbered by the easement.”
This is the second recent victory for property owners in an appeal Thor Hearne and the Arent Fox team have argued to the Federal Circuit. Mr. Hearne argued a similar Fifth Amendment taking case in the Federal Circuit which ruled in favor of the landowners in March of this year.
“The Federal Circuit has shown it will zealously protect citizens’ Fifth Amendment right to be paid compensation when the government takes land. The Court has not been sympathetic to the Justice Department’s ill-founded and technical arguments made in an effort to excuse the federal government from its constitutional obligation,” Hearne observed. “This decision establishes further precedent which will, hopefully, contribute to fair, cost-efficient and prompt resolution of these and other claims.”
Thor Hearne was lead counsel and was joined by Arent Fox associates Meghan Largent and Lindsey Brinton who worked with him as part of the litigation team representing these Arizona ranchers.
To read the Federal Circuit’s opinion in the case, Ladd, et al. v. United States, please click here.
Arent Fox’s briefs filed with the Federal Circuit may be read by clicking here and here.
To listen to the oral argument of this case before the Federal Circuit, click here.
