Cynical Clinton Lawyers Hold
Property Hostage Seven Years

By William Perry Pendley

(Editor's note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of property rights and individual liberties.)

In 1995, Assistant Attorney General Lois Schiffer, the highest-ranking environmental lawyer in the U.S. Department of Justice, spoke in Denver, Colorado. Remarkably, given the topics she might have addressed, she spent an hour attacking Congressional proposals to expedite the time-consuming (often a decade or more) process by which landowners seek just compensations when the government "takes" their property. There was no need for legislation, she said, because her office quickly pays all takings claims.

Tell that to Maurice and Delores Glosemeyer of Marthasville, Mo. Their "takings" claim, filed on March 4, 1993, is still pending in federal court. That's not the half of it. Ms. Schiffer and her attorneys have done everything to prevent the Glosemeyer claim from being heard. Worse yet, the Glosemeyers are not alone.

Before the turn of the century, a railroad purchased easements across the property that the Glosemeyers came to own. By their express terms, the easements were for a railroad "right-of-way" and "for no other purpose." The property owners knew, and Missouri law ensured, that if the railroad abandoned its right-of-way, the property would revert to the landowner.

In 1983, Congress passed the "Rails to Trails Act," under which, when railroads asked the Interstate Commerce Commission for authority to abandon a right-of-way, the ICC could mandate that the right-of-way become a trail.

When property owners challenged the act, the U.S. Supreme Court upheld its constitutionality, but held that the inability of property owners to get their land back was probably a "taking" for which "just compensation" had to be paid.

In 1996 the U.S. Court of Appeals for the Federal Circuit held that when a Vermont family's property was turned into a trail after being abandoned by a railroad it was "taken." "Just compensation" had to be paid.

The Grosemeyers' situation differed slightly. Because the rail line across the Glosemeyers' property flooded on an almost annual basis and the track was "mostly obsolete because of its age" (half the bridges were installed before 1930) the railroad found alternative means of moving its freight, abandoned the line and began tearing out its tracks.

However, when the railroad asked the ICC for authority to abandon the right-of-way the ICC told the railroad to give it to the Missouri Department of Natural Resources for use as a trail. That was fine with the railroad; whether the right-of-way was abandoned or given to the DNR, the railroad's responsibility was terminated.

The Glosemeyers also believed that it made little difference whether the ICC granted the abandonment or gave the trail to the DNR. After all, the railroad had abandoned its use of the right-of-way and had torn up its tracks. Furthermore, because a trail is not a "railroad purpose" under Missouri law, the Glosemeyers had to be paid.

Ms. Schiffer and her lawyers disagreed, arguing that the trail was a railroad purpose because it was "saving" the right-of-way for future railroad use ("rail banking"). Not surprisingly, this absurd notion — one federal judge called it a "fig leaf" — has been rejected by Missouri courts.

Knowing that, Ms. Schiffer and her attorneys argued for six years that the case was not ready for trial or for a ruling from the judge. In hearing after hearing, federal lawyers asked for time to learn the facts. Each time their request was denied. Now at long last, time for Clinton's lawyers may be running out. Recently the federal judge hearing the case, in response to a government lawyer's request for more depositions to learn if the railroad had pulled up its tracks, responded: "Why don't you drive out and take a look!"

Maybe, after nearly seven years, attempts by the Clinton administration to railroad property owners out of "just compensation" have reached the end of the line. Maybe now the thousands of property owners facing the same situation as the Glosemeyers will be able to receive — if not justice — then "just compensation."