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Western Group and Legal Expert Urge Rehearing En Banc for Michigan Landowners

Jul 24, 2017 | by William Perry Pendley

DENVER, CO.  A western nonprofit, public-interest legal foundation with decades of experience seeking “just compensation” for the taking of “private property” for “public use” and a renowned legal historian and property rights expert today urged the U.S. Court of Appeals for the Sixth Circuit to rehear en banc the appeal brought by Muskegon County, Michigan landowners who sought constitutional relief for use of their private property for a public trail.  On May 31, 2017, a three-judge panel ruled against the landowners.  On July 5, 2016, Mountain States Legal Foundation (MSLF) and James W. Ely Jr. of Vanderbilt Law School urged the U.S. Court of Appeals for the Sixth Circuit to reverse a ruling by the federal district court for the western district of Michigan dismissing the lawsuit.  At issue are three federal laws limiting jurisdiction of federal district courts—Article III courts—in lawsuits alleging the unconstitutional taking of private property.  MSLF and Professor Ely aver these cases may be brought under the Constitution; thus, they cannot be removed from the jurisdiction of an Article III court, cannot be entrusted to a non-Article III court, and cannot be tried exclusively by a judge, that is, property owners may not be denied trial by a jury.

“Protecting property rights is of exceptional importance, the panel’s ruling conflicts with a ruling of the Sixth Circuit, and the panel’s holding conflicts with a landmark precedent set by the Supreme Court of the United States,” said William Perry Pendley, president of MSLF.  “Sovereign immunity can no more preclude the pursuit of just compensation under the Fifth Amendment today than it could when the Supreme Court ruled in 1882.”

A 3.35-mile right-of-way acquired by the Grand Rapids and Indiana Railroad in 1886, which was limited in scope to the operation of a railway, has not been used for railroad operations since September of 2005.  Thus, in November of 2007, Mid-Michigan Railroad, which is the predecessor in interest to Grand Rapids and Indiana Railroad, petitioned the federal Surface Transportation Board for authority to abandon the 3.35-mile right-of-way.  Although abandonment has not been authorized due to ongoing negotiations between Mid-Michigan Railroad and the Michigan Department of Natural Resources, on January 14, 2015, twenty (20) landowners across whose property the right-of-way passes sued the United States claiming the federal government took their private property without paying just compensation.

The United States moved to dismiss the landowners’ lawsuit for failure to state a claim and for lack of subject-matter jurisdiction arguing that their complaint violates three federal statutes:  (1) the Little Tucker Act, 28 U.S.C. § 1346, which places a $10,000 monetary limitation on the jurisdiction of all Article III courts to hear Fifth Amendment claims; (2) the Tucker Act, 28 U.S.C. § 1491, which grants exclusive jurisdiction over Fifth Amendment claims exceeding $10,000 to the U.S. Court of Federal Claims, a non-Article III court; and (3) 28 U.S.C. § 2402, which bars any right to a trial by jury for Fifth Amendment claims.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Brott v. United States of America

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