J. PAUL PRESEAULT AND PATRICIA PRESEAULT, PETITIONERS V. INTERSTATE COMMERCE COMMISSION, ET AL. No. 88-1076 In the Supreme Court of the United States October Term, 1988 On Petition for A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The Federal Respondents In Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion Opinions Below The opinion of the court of appeals (Pet. App. 1-13) is reported at 853 F.2d 145. The final order of the Interstate Commerce Commission (Pet. App. 47-54) is reported at 2I.C.C.2d 903 (1987). JURISDICTION The judgment of the court of appeals was entered on August 4, 1988. A petition for rehearing was denied on September 28, 1988. (Pet. App. 57.) The petition for a writ of certiorari was filed on December 27, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Petitioners claim to own a reversionary interest in a portion of a right-of-way used by the Vermont Railway, Inc. The question is whether an order of the Interstate Commerce Commission that allows the City of Burlington to use that right-of-way as a nature trail is invalid as an unconstitutional taking of petitioners' property even though petitioners may seek just compensation under the Tucker Act. STATEMENT 1. In 1968, Congress enacted the National Trails System Act (16 U.S.C. 1241 et seq.) (Trails Act) to establish a nationwide system of nature trails. As originally enacted, the Trails Act did not provide for the conversion of railroad rights-of-way to nature trails. Congress first addressed that possibility in Section 809 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. 10906. Section 809 provided for: (1) studies aimed at preserving railroad rights-of-ways, and (2) measures encouraging the voluntary conversion of railroad lines to nature trails. 49 U.S.C. 10906 note. In 1983, Congress amended the Trails Act by adding Section 8(d) (codified at 16 U.S.C. 1247(d) (Supp. IV. 1986)). Section 8(d) was enacted "in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service." 16 U.S.C. 1247(d). See also H.R. Rep. No. 28, 98th Cong., 1st Sess. 8 (1983) ("previous congressional efforts have not been successful in establishing a process through which railroad rights-of-way which are not immediately necessary for active service can be utilized for trail purposes"). To accomplish that goal, Section 8(d) modified the authority of the Interstate Commerce Commission (ICC or Commission) over the abandonment of rail lines. In general, the Commission has plenary authority over whether a railroad may abandon one of its lines. See 49 U.S.C. 10903 (1982 & Supp. IV 1986); Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319 (1981). That power was modified by Section 8(d) of the Trails Act to provide that rights-of-ways that otherwise might be abandoned may be preserved and used on an interim basis as nature trails under the supervision and maintenance of a public agency or private party. Section 8(d) states that, if the railroad and trail user reach such an arrangement, "such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes." 16 U.S.C. 1247(d) (Supp. IV 1986). In short, Section 8(d) allows for the maintenance of railroad rights-of-way for possible future railroad use (so-called "railbanking"), while allowing such rights-of-way to used currently as nature trails. See Pet. App. 3. 2. Petitioners are Vermont landowners who claim to hold a reversionary interest in a railroad right-of-way adjacent to their land (Pet. App. 3). Until 1975, Vermont Railroad, Inc., operated rail service over that line under a lease from the State of Vermont. The State of Vermont claims that it owns the right-of-way in fee simple (id. at 10). Petitioners, however, contend that they own title to the land, subject only to an easement for railroad purposes (ibid.). Accordingly, after active rail service had ceased, petitioners brought a quiet-title action in state court (id. at 3). The Supreme Court of Vermont dismissed that action on the ground that the ICC had exclusive jurisdiction over the right-of-way because it had not authorized the abandonment of the line. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). Petitioners then filed with the ICC a petition seeking a certificate of abandonment for the railroad line (Pet. App. 4). While that petition was pending, the State of Vermont informed the Commission that it had entered into a lease with the City of Burlington pursuant to Section 8(d) of the Trails Act whereby the City would maintain in right-of-way as a trail while preserving it for possible future rail use. See 51 Fed. Reg. 464 (1986). The Commission then dismissed petitioners' request for a certificate of abandonment (Pet. App. 5). The Commission later denied petitioners' request for reconsideration. The ICC explained that the lease arrangement between Vermont and Burlington satisfied the Trails Act (id. at 50). The Commission observed that "interim trail use" might "conflict with the reversionary rights of adjacent land owners, but that is the very purpose of the Trails Act" (id. at 53). 3. Petitioners sought judicial review of the Commission's order in the court of appeals. The court sustained the Commission's order (Pet. App. 1-13). The court of appeals first rejected petitioners' claim that Section 8(d) of the Trails Act exceeds Congress's power to make laws regulating interstate commerce. The court stated: "The challenged section of the Trails Act serves two purposes: (1) preserving rail corridors for future railroad use and (2) permitting public recreational use of trails. Both purposes are legitimate congressional goals under the commerce clause." (Pet. App. 9). The court then observed that Section 8(d) is a "remarkably efficient and sensible way to achieve both goals" (Pet. App. 10). The court of appeals then rejected (Pet. App. 10-13) petitioners' assertion that Section 8(d) is unconstitutional on its face because it effects a taking of private property without just compensation. The court noted that petitioners purport to hold a reversionary interest in the right-of-way (Pet. App. 12). The court ruled, however, that "(t)he ICC has plenary and exclusive authority to determine whether it is appropriate under all the circumstances to allow a railway carrier to abandon a route, and if the ICC determines that abandonment is not appropriate, no reversionary interest can or would vest" (ibid.). Here, the court observed, the ICC has ruled that the right-of-way may not be abandoned because it should be retained for possible "future railroad use" (ibid.). The court held that the ICC's ruling, which followed from Section 8(d) of the Trails Act, did not effect a taking any more than a Commission order requiring a railroad to continue to provide railroad service over a particular line (ibid.). ARGUMENT 1. Petitioners renew their claim (Pet. 8-17) that the Commission's application of Section 8(d) to the facts of this case resulted in an unconstitutional taking of petitioners' property. That claim is without merit. a. This is an action brought under 28 U.S.C. 2342 for judicial review of a final order of the ICC. The court of appeals had jurisdiction only to decide the validity of the ICC's order denying petitioners' request for a certificate of abandonment. Petitioners do not contend that the Commission violated any statutory duty. Rather, they contend that the Commission's order results in an unconstitutional taking. But the Commission's order is constitutionally valid whether or not Section 8(d) effects a taking in this case. "The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation." Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985). In Williamson Planning Comm'n, 473 U.S. at 194-195, this Court stated: "If the government has provided an adequate process for obtaining compensation, and if resort to that process "yield(s) just compensation," then the property owner "has no claim against the Government' for a taking" (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, n.21 (1984)). The Tucker Act, 28 U.S.C. 1491, provides such a remedy. It allows a person to seek just compensation in the Claims Court for a taking of private property by the federal government. /1/ See United States v. Causby, 328 U.S. 256, 267 (1946). Accordingly, this Court has "held that taking claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act." Williamson Planning Comm'n, 473 U.S. at 195. Petitioners have not pursued their claim under the Tucker Act. Thus, the Commission's application of Section 8(d) of the Trails Act in this case has not effected an unconstitutional taking even if petitioner's reversionary interest was "taken" within the meaning of the Fifth Amendment. Contrary to petitioners' contention (Pet. 16), the Trails Act does not repeal the Tucker Act's grant of jurisdiction to adjudicate takings claims involving Section 8(d) of the Trails Act. In Monsanto, supra, this Court noted that the Tucker Act applies to taking claims under the Fifth Amendment unless Congress expresses its "unambiguous intention to withdraw the Tucker Act remedy." 467 U.S. at 1019. There is no such expression in the Trails Act. Petitioners cite a 1983 amendment to the Trails Act, which stated that the authority "to make payments() under this Act shall be effective only to such extent or in such amounts as are provided in advance in appropriation Acts" (National Trail Systems Act Amendments of 1983, Pub. L. No. 98-11, Section 101, 97 Stat. 42). But that provision, by its plain terms, does not affect payments made under the Tucker Act; it applies to payments made under the Trails Act. In any event, payments under the Tucker Act are made out of the Judgment Fund, which is an appropriated fund. See 31 U.S.C. 1304(a). Accordingly, petitioners may pursue their claim against the United States for compensation in the Claims Court. The Commission's order, therefore, is not invalid as an unconstitutional taking of private property without just compensation. b. The court of appeals rested its judgment on a different ground. It reasoned that petitioners' property had not been "taken" within the meaning of the Fifth Amendment. The court of appeals noted that the ICC has plenary authority to determine whether a railroad line may be abandoned and, until the Commission authorizes an abandonment, "no reversionary interest can * * * vest." Pet. App. 12. That reasoning appears to be at odds with the court of appeals' decision in National Wildlife Fed'n v. ICC, 850 F.2d 694 (D.C. Cir. 1988). In that case, the District of Columbia Circuit reviewed the Commission's regulations implementing Section 8(d) of the Trails Act. The court ruled that Section 8(d) could, in a given case, effect a taking of private property. 850 F.2d at 706. The court noted that whether a taking occurs will depend on the landowners' property interest under state law (ibid.) and the likelihood that the right-of-way will be used for rail services in the future (id. at 707-708). The court remanded the regulations to the Commission for reconsideration in light of the court's Fifth Amendment analysis. /2/ Accordingly, the Second Circuit seems to hold that Section 8(d), if properly applied, can never result in a taking of property, whereas the District of Columbia Circuit holds that it might in a particular case. For two reasons, however, we believe that this case is not the proper vehicle for resolving that disagreement. First, as we explained above, this action is one for judicial review of an order of the Commission. That order is valid whether or not Section 8(d) effects a taking in this case. Thus, the takings question raised in the petition is not squarely presented in this case. Second, petitioners make a facial challenge to the statute. But this Court has repeatedly stated that, when a plaintiff asserts a takings claim, "ad hoc, factual inquiries" must be conducted with respect to specific property." Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 495 (1987). Accord Kaiser Aetna v. United States, 444 U.S. 164 (1979). In this case, for example, a court could not resolve petitioners' Fifth Amendment claim without initially resolving the issue whether petitioners own their land subject to a railroad easement or the State of Vermont owns the right-of-way in fee simple. The Claims Court is the proper forum for determining the facts necessary to resolve such fact-specific issues that are implicated by petitioners' Fifth Amendment claim. 2. Petitioners next contend (Pet. 17-22) that Section 8(d) of the Trails Act exceeds the reach of Congress's lawmaking power under the Commerce Clause. That argument has been rejected by every court that has considered it. See Pet. App. 9-10; National Wildlife Fed'n v. United States, 850 F.2d 705-707; Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108, 1117-1119 (E.D. Mo. 1988). It is well settled that "when Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational." Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 277 (1981). Here, Congress found that the use and maintenance of railroad rights-of-way affect interstate commerce. See 16 U.S.C. 1247(d) (Supp. IV 1986). Petitioners do not contend that Congress's finding is irrational. See generally Hayfield Northern R.R. v. Chicago & North Western Transp. Co., 467 U.S. 622, 628-630 (1984) (Congress has well-recognized authority to regulate abandonment of railroad lines). Instead, petitioners erroneously cite Nollan v. California Coastal Comm'n, 107 S.Ct. 3141 (1987), for the proposition that this Court has limited Congress's power under the Commerce Clause. In Nollan, the Court considered whether a state regulation effected a taking of private property. The Court did not consider Congress's power to make laws under the Commerce Clause of the Constitution. The two inquiries are distinct. Indeed, this Court noted in Kaiser Aetna v. United States, supra, that the issue whether a law validly enacted under the Commerce Clause amounts to a taking "is an entirely separate question." 444 U.S. at 174. And under this Court's holdings, there is no doubt that Congress had the power under the Commerce Clause to enact Section 8(d) of the Trails Act. The separate question -- whether the application of Section 8(d) results in a taking in this case -- is a matter for determination by the Claims Court. Conclusion The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General DONALD A. CARR Acting Assistant Attorney General PETER R. STEENLAND, JR. LOUISE MILKMAN Attorneys ROBERT S. BURK General Counsel ELLEN D. HANSON Associate General Counsel LOUIS MACKALL Attorney Interstate Commerce Commission MARCH 1989 /1/ The federal district courts have jurisdiction over such claims not exceeding $10,000. 28 U.S.C. 1346. /2/ On remand, the Commission readopted its rules. Rail Abandonments -- Use of Rights-of-Ways As Trails, Ex parte No. 274 (Sub. No. 13) (Feb. 10, 1989), appeal pending, No. 89-1178 (D.C. Cir.). The ICC reasoned that the Claims Court is the proper forum to decide any questions of just compensation under the Fifth Amendment.