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Western Group and Property Rights Expert Urge Review of Fifth Amendment Case

Dec 14, 2017 | by William Perry Pendley

DENVER, CO.  The Fifth Amendment to the U.S. Constitution provides the government may not take private property for public use without just compensation.  When a group of Muskegon County, Michigan landowners sought just compensation in federal court for the use of their private property as a public trail, however, they found that a federal statute requires that any lawsuit claiming just compensation damages over $10,000 must be brought in a special tribunal under the control of Congress with no right to a jury trial.

A 3.35-mile right-of-way acquired by the Grand Rapids and Indiana Railroad in 1886, which was limited to the operation of a railway, has not been used for that purpose since late 2005.  Thus, in November of 2007, Mid-Michigan Railroad, which is the successor 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.  While any landowners across whose property the right-of-way had passed would ordinarily hold unencumbered title to their land once the railway ceased operations, the federal government invoked section 8(d) of the Trails Act and created a new easement for public recreational use.  On January 14, 2015, twenty-three of the affected landowners sued the United States claiming the federal government took their private property without paying just compensation in Michigan federal district court.

The United States moved to dismiss the landowners’ lawsuit for failure to state a claim and for lack of subject-matter jurisdiction, arguing that the landowners’ lawsuit seeking just compensation in excess of $10,000 and demanding trial by jury cannot be brought before a federal district court because of three federal statutes:  (1) the Little Tucker Act, 28 U.S.C. § 1346, which places a $10,000 limitation on the jurisdiction of Article III courts to hear Fifth Amendment claims; (2) the Tucker Act, 28 U.S.C. § 1491, which grants 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 a right to a trial by jury for Fifth Amendment claims. In early 2016, the federal district court granted the United States’ motion to dismiss. 

On May 31, 2017, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled against the landowners.  After the Sixth Circuit rejected a plea to rehear the case en banc, the landowners sought Supreme Court review.  Mountain States Legal Foundation (MSLF), a western nonprofit, public-interest legal foundation with decades of experience seeking just compensation for the taking of private property for public use, and James W. Ely, Jr., a professor of law at Vanderbilt University, renowned legal historian, and property rights expert, today filed a brief supporting their petition.  MSLF and Professor Ely argue that a case arising under the Fifth Amendment’s Just Compensation Clause must be entrusted to an Article III court, and that Congress is not allowed to transfer jurisdiction over such cases to tribunals under its own control that lack Article III’s safeguards of impartiality.

“Under the Constitution, property owners have the right to have their Fifth Amendment cases heard by their State’s federal district court and a local jury of their peers and not by a faraway legislative or administrative court established by Congress,” said William Perry Pendley, president of MSLF.

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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