- - Tuesday, August 18, 2015


One of the best-known constitutional guarantees, certainly among landowners, is the right to “just compensation” when the federal government seizes “private property” for “public use.” What is not well known is that, despite explicit constitutional assurances, victims of a “taking” may not sue in federal courts established by the Constitution nor are they allowed a jury trial to determine the amount of their recompense. Fortunately, a brave band from Michigan has challenged the constitutionality of decades-old federal laws that deny these rights.

Muskegon (from the Ottawa tribe’s “Masquigon” for “marshy river or swamp”) — a city on the Muskegon River where it empties into Muskegon Lake in Michigan — is the largest city on Lake Michigan’s eastern edge with 38,000 residents and 172,000 living in its metropolitan area. Grand Rapids, the largest city in western Michigan with 1 million metro-area residents, is 50 miles to the southeast. In historical times, Muskegon was first home to bands of American Indian tribes, then fur trappers and traders, and finally, loggers. Today, its economy is advanced manufacturing, including aerospace, armor and bearings.

One Muskegon business typical of many American towns is Fredricks Construction Co., a family-owned and -run outfit specializing in roofing applications, siding, windows and insulation for residential projects. Founded in 1969 by Gar Fredricks, he has operated it since 1979 at its current location in a mixed light industrial and residential area. Along the property’s southern boundary runs a railroad right-of-way, established in 1886 by the Grand Rapids & Indiana Railroad with Mr. Fredricks’ predecessor. The line was acquired by the Pennsylvania Railroad and eventually became the Mid-Michigan Railroad, Inc.

In 2008, the Mid-Michigan Railroad ended railroad activity, which by operation of the contract with successor-in-interest Mr. Fredricks and pursuant to Michigan law, caused the land to revert to Mr. Fredricks. The federal Rails-to-Trails Act of 1983, however, required the railroad to file its request to abandon with the federal Surface Transportation Board. In 2009, the board issued orders authorizing the Mid-Michigan Railroad to negotiate with a trail operator to convert the right-of-way into a public trail and created two new easements on Mr. Fredricks’ property: one for the trail and one that holds the land in perpetuity for future railroad use. Neither Mr. Fredricks nor the 19 other individuals, families and small businesses in this predominantly African-American section of Muskegon whose land was taken unconstitutionally were notified.

Faced with a clear violation of their Fifth Amendment rights, the landowners sought relief before a court established under the Constitution. After all, in 1990 the Supreme Court of the United States held unanimously that the Rails-to-Trails Act “gives rise to a taking .” Furthermore, the Seventh Amendment guarantees the right to trial by jury.

Unfortunately, two laws passed in 1887 require any takings claim of $10,000 or more be brought not in a constitutional (Article III) court such as the Michigan federal district court in nearby Grand Rapids, but in the U.S. Court of Federal Claims in Washington, D.C. — an executive branch tribunal or legislative court created by Congress in that long-ago statute. Worse, the claims court does not provide trial by jury.

To protect their rights, the landowners, represented by Mark F. Hearne, II, who has fought this battle for decades, sued in the claims court in Washington in July 2014. Then, in January, they sued in Michigan federal district court seeking their “just compensation,” demanding a trial by jury, and challenging the constitutionality of the federal laws that deny them all of this. Recently, the claims court rejected the federal government’s motion to dismiss their lawsuit. Final briefs are being filed before the argument and ruling that could set them on course for a landmark decision from the Supreme Court.

William Perry Pendley is president of Mountain States Legal Foundation in Denver and author of “Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today” (Regnery, 2013).

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