[Congressional Record (Bound Edition), Volume 151 (2005), Part 22]
[Extensions of Remarks]
[Pages 30445-30447]
[From the U.S. Government Publishing Office, www.gpo.gov]




  H.R. 4581, THE EASEMENT OWNERS' FAIR COMPENSATION CLAIMS ACT OF 2005

                                 ______
                                 

                           HON. W. TODD AKIN

                              of missouri

                    in the house of representatives

                       Sunday, December 18, 2005

  Mr. AKIN. Mr. Speaker, in his first State of the Union address, 
President Abraham Lincoln said, ``It is as much the duty of government 
to render prompt justice against itself in favor of citizens as it is 
to administer the same between private individuals.'' President Lincoln 
said this in reference to the United States Court of Claims which he 
proposed Congress to establish for the purpose of justly resolving the 
claims of citizens against the United States. One of the most 
fundamental rights we enjoy in this nation is the right to know that

[[Page 30446]]

our property is free from confiscation absent the protections of the 
Fifth Amendment. When the government does confiscate a citizen's 
property, the United States Constitution requires the government to 
provide the citizens from whom the property is confiscated full and 
fair compensation for the property that has been taken.
  A matter has come to my attention in which the United States 
government falls tragically short of meeting this obligation. I refer 
to those individual property owners in St. Louis County whose property 
has been confiscated by the Federal Government for use as a public 
recreational trail under the Federal Trails Act. These citizens' 
property was taken more than 12 years ago when it was converted to a 
recreational trail under the Federal Trails Act, and they have still 
not received compensation. This is so despite the fact that the Justice 
Department has admitted in a settlement agreement and in numerous court 
pleadings that the Federal Government has confiscated their property 
and that the Fifth Amendment to the U.S. Constitution requires that the 
Federal Government pay these property owners the fair value of the 
property taken. The Justice Department and the property owners each 
hired appraisers who determined the fair value of the property and 
after 6 years of litigation in the Federal Court of Claims a settlement 
agreement was reached.
  Yet, two days before this agreement was to be approved by the judge, 
the Federal Circuit Court of Appeals issued a decision in a Georgia 
case called Caldwell v. United States. The Justice Department and the 
U.S. Court of Claims have interpreted that case as announcing a new 
rule for the time when a property owner must file a claim to recover 
the value of his property taken by operation of the Trails Act. This 
``new rule'' is inconsistent with the understanding of Congress when we 
enacted the Trails Act and, as announced by the dissenting opinion in 
the Caldwell case, is ``contrary to all authority''. The Federal 
Circuit decision ruled that the statute of limitations for Trails Act 
compensation claims begins to run, not when the property owners land is 
actually taken from the landowner, but when the Surface Transportation 
Board issues a notice that there is a possibility that the land might 
be taken in the future.
  Mr. Speaker, this ``new rule'' announced by the Caldwell court, as it 
has been interpreted and applied by the Justice Department and the 
lower courts, will work a great injustice to a limited number of 
property owners whose property has been confiscated but will now be 
denied compensation, while at the same time requiring the Federal 
Government to pay compensation for property that might never be 
converted to a public recreational trail. The new Caldwell rule will 
cost the Federal Government plenty--requiring taxpayers to pay 
significantly greater interest for compensation claims during the time 
before the property was ever taken from the land owners.
  Mr. Speaker, this injustice is best illustrated by the letter I 
received from Gale and Sara Illig. Mr. and Mrs. Illig live in my home 
county of St. Louis, Missouri and their property was taken for a 
recreational trail. I incorporate Mr. and Mrs. Illig's letter in these 
remarks.

       Dear Congressman Akin: We have a small business. Gale is in 
     commercial holiday decorating and Sarah helps in the 
     business. After a number of years of saving, in 1984 we 
     bought our home in Grantwood Village. By most standards it is 
     a modest home but it is a home that we love and have worked 
     hard to care for and improve over the years. This home is 
     where we have raised our family and now spend our retirement 
     years. We are not a family of great wealth and our home 
     represents our most significant asset.
       When we bought our home in 1984, one of the features that 
     appealed to us was the quiet and secluded community and 
     location. A screened-in sun porch on the south side of our 
     home is one of our favorite rooms. Outside the sun porch and 
     further to the south is the now abandoned Missouri Pacific 
     Railroad right-of-way. We own the property over which the 
     MoPac held an easement for this branch-line of their 
     railroad. The tracks themselves were just a single line and 
     they were infrequently used. Between the tracks and our home 
     was a large, attractive hedge which gave us privacy.
       In 1992 a not-for-profit nature trail group negotiated with 
     MoPac to acquire this now abandoned railroad right-of-way. We 
     have been told that the federal government gave the trail 
     group the authority to acquire this abandoned railroad right-
     of-way and to prevent us from using our property. We 
     understand that the federal Trails Act gave them this ability 
     to take our property even though under Missouri law we had 
     the right to use and occupy this property once it was 
     abandoned by MoPac. We wrote to Senator Bond in 1992 
     expressing concern about the effect this trail would have 
     upon our home and property value. While the railroad had a 
     full 100 foot width easement, they only used a very narrow 12 
     feet that was occupied by the train tracks and, as noted, 
     that was used infrequently. Because of the Trails Act, the 
     trail organization now claims the right to use the full 100 
     foot width of the original railroad easement, including the 
     right to cut and remove all of the foliage on this part of 
     our property. Additionally, with the trail use we now have, 
     quite literally, hundreds of people biking and walking 
     through our property where previously we enjoyed a quiet and 
     secluded home.
       Now, we want to make clear that we do not oppose 
     recreational hiking and biking trails and we think parks and 
     recreational trails are a fine thing. It is just that when, 
     as in our situation, the federal government runs the trail 
     through our property without our consent we believe that we 
     should be fairly compensated for this taking of our property. 
     This public trail runs just several feet from our sunroom and 
     across almost the entire southern third of our property.
       We have always understood that the U.S. Constitution 
     provided us the guarantee that if our property were to be 
     taken we would be compensated. I mentioned that we are a 
     family of modest means and this is true. This causes us to 
     feel even more painfully the effect that this taking of our 
     property has had upon our own home value.
       The government took our property almost 13 years ago. We 
     spent more than 6 years in a lawsuit with the government 
     seeking to be compensated for the government's taking of this 
     property. In that lawsuit, the Justice Department agreed that 
     this taking of our property represented a value of $72,065 
     taken from us by the federal government. The Justice 
     Department also agreed that they would pay us this money and 
     that they were responsible to make this payment under the 
     Fifth Amendment of the U.S. Constitution. The Justice 
     Department also agreed to pay us interest on this because it 
     has now been 13 years since our property was taken. The 
     Justice Department's agreement that they would pay us was 
     long overdue but was very welcome.
       As we get older we face the realistic understanding that we 
     will not be able to live in our home forever. During the 
     twelve years since the trail was created, Gale has suffered 
     both cancer and a multiple heart valve replacement. The value 
     that we have built up in our home is an asset that we look to 
     provide for our needs when we reach a point where we can no 
     longer care for this home and need to move into other living 
     arrangements. For this reason the $72,065 plus interest since 
     1992, while not much money to the federal government, is 
     quite literally huge to us. This is why we were so pleased 
     when the settlement was reached last December.
       * * * what happened next, * * * is still one of the most 
     outrageous experiences in our life and represents a great 
     injustice to us personally. Two days before the hearing with 
     the Judge to approve the settlement, we understand that the 
     Court of Appeals decided a Georgia Trails Act case. The 
     government claimed this case changed the law and meant that 
     now they now no longer had to pay us what they had agreed 
     they were obligated to pay us for the confiscation of our 
     property.
       We are not lawyers so maybe that is why we cannot 
     understand the nuances of this, but, to us, a very simple 
     principle is involved. The government has taken our property, 
     the government agreed that they have taken our property (I am 
     told by [our attorney] that the government agreed to this not 
     just once, but on multiple occasions in formal statements 
     filed with the Court), the government agrees how much they 
     owe us for the property, including interest, and the 
     government is required by the U.S. Constitution to pay us 
     this money. Then, at literally the last minute, they claim 
     the law has changed because of a case in Georgia so they no 
     longer have to pay us. This is just flat wrong! And, no 
     amount of legal nuance can make it right.
       Congressman Akin, a lot of us in St. Louis experienced the 
     same sense of outrage during the October 16th Cardinals game 
     against the Astros when the home plate umpire, Cuzzi, called 
     what was clearly a ball to be a strike on Jim Edmonds and 
     then threw Jim Edmonds out of the game. That bad call did not 
     necessarily change the outcome of the game. But the tragic 
     effect of this bad call by the Court in the Georgia case and 
     the bad call by the Department of Justice to use that case as 
     an excuse for the government to escape its obligation to pay 
     us for our property represents a devastating financial 
     setback for our family.
       We have always worked hard, saved our money, and paid our 
     taxes and expected that the federal government would treat us 
     in a fair and just manner. We must tell you that we see this 
     effort by the government to now escape their clear 
     constitutional obligation to pay us (and the other one 
     hundred property owners from whom they admit taking property) 
     as a very fundamental injustice. For that reason, we are 
     extremely grateful to have you represent us in the Congress 
     and greatly appreciate your efforts to address this 
     injustice. We are grateful for your help on this matter of 
     such great importance to us.
       Warmest regards,
                                             Sarah and Gale Illig.

  Mr. Speaker, this letter demonstrates my initial point that the 
Federal Government has dramatically fallen short of President Lincoln's

[[Page 30447]]

standard of ``providing prompt justice against itself in favor of 
citizens''. Mr. Speaker, H.R. 4581 remedies this injustice and also 
returns administration of the Trails Act to a manner consistent with 
Congress' intention when initially passed.


The Purpose of H.R. 4581, the Easement Owners' Fair Compensation Claims 
                              Act of 2005

  The Easement Owners' Fair Compensation Claims Act of 2005 will remedy 
the injustice worked by the Federal Circuit Decision in Caldwell v. 
United States. It will establish clearly Congress's intent regarding 
when the Trails Act is intended to interfere with a property owner's 
interest and it will provide that those property owners in the limited 
number of cases affected by this Caldwell decision are, in fact, 
provided full, fair compensation for the property that the Federal 
Government took from them while, at the same time, assuring that the 
Federal Government does not use taxpayers' funds to pay for claims 
where it did not take any property and where ultimately, no 
recreational trail is ever created. In so doing, we will bring justice 
on behalf of those owners whose property is taken and we will also 
preserve and steward the taxpayers' resources by not paying for claims 
where no recreational trail for public use is ever created. This bill 
will provide the constitutionally mandated compensation to those 
property owners whose lands have been confiscated (as the Justice 
Department has already admitted) while on a broader level saving the 
Government from having to pay money for property that is never taken 
for a public recreational trail and prevent the Federal Government from 
having to pay interest for a ``taking'' of property years before the 
property owner's State law right to use and possess the property is 
ever interfered with.
  In short, H.R. 4581 restores the date for starting the statute of 
limitations to the date when the property owners' rights to the 
property are actually taken by the Federal Government. This is 
consistent with Congress's intention when the Trails Act amendments 
were passed in 1983 and will assure compensation to those property 
owners whose property the Government already acknowledged taking but 
not require the Government to pay compensation or interest for property 
never converted to trail use. H.R. 4581 will not undercut the operation 
of the Trails Act but will actually make it more cost efficient and 
will fairly treat those property owners whose property is actually 
taken for a trail.

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