Memmer v. United States

Owners’ Counsel of America, along with four other national property rights groups recently filed an Amicus Brief challenging the U.S. government’s request to revisit a property owners’ takings claim based on the Trails Act. The groups’ brief noted that several of the court’s rulings dating back two decades established a clear precedent on the matter which the government was clearly seeking to overturn. Established precedent holds that the Trails Act gives rise to a per se physical taking (not a regulatory taking) of a landowner’s private property when the government first invokes section 8(d) of the Trails Act. See Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 8 (1990) (Preseault I) (The Trails Act “gives rise to a takings question in the typical rails-to-trails case because many railroads do not own their rights-of- way outright but rather hold them under easements or similar property interests.”), and Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en banc) (Preseault II) (Trails Act imposes “a new easement for the new use, constituting a physical taking of the right of exclusive possession that belonged to the [landowners].”).Following the filing of the all briefs, the United States Court of Appeals for the Federal Circuit denied the government’s Petition for Rehearing. The property owners were represented by OCA members Thor Hearne and Stephen Davis.