April 29, 2014

Private property versus public recreation: the debate continues

By Brian T. Hodges Senior Attorney

Earlier this month, I published a guest column about the recent U.S. Supreme Court decision Marvin M. Brandt Revocable Trust v. United States with Jurist, an online journal run by the University of Pittsburgh School of Law. The article takes on critics who believe that judicial respect for private property rights will spell doom for public recreation policies like Rails to Trails. That argument, I point out, is nothing more than naked antagonism with the mandates of the U.S. Constitution:

[The] takings clause of the Fifth Amendment mandates that government pay just compensation when it seeks to take private property for public use. Indeed, a unanimous court made that precise point almost twenty-five years ago in Preseault v. Interstate Commerce Comm’n when it upheld the Rails-to-Trails Act against a facial challenge. In that case, the court cautioned that some of the abandoned railroad rights-of-way may be held in private ownership, which will require just compensation before converting the land into public recreational trails. [Justice] Sotomayor’s dissent in Brandt—and all of the commentary it inspired—forgets Justice Oliver Wendell Holmes’ famous warning in Pennsylvania Coal Co. v. Mahon “that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Thus, even though bike paths on former railroad easements may be good and desirable, it doesn’t mean that the public should get the land for free.

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