Without Trails

Second lawsuit filed regarding public trail near Riley


A second lawsuit has been filed against the U.S. government claiming Vigo County landowners should be compensated under the Fifth Amendment for land that the U.S. Surface Transportation Board ordered be converted into a public trail near the town of Riley.

At issue is an approximately 6-mile section of rails which once serviced the Chinook Coal Mine just past Riley. The Indiana Railroad Company operated the Riley spur line under an easement and in May petitioned to abandon the line, which went between milepost 6.48 and milepost 12.4 near Riley.

On May 19, the Vigo County Board of Commissioners filed a trail use request for the property. On June 9, the Surface Transportation Board issued “a notice of Interim Trail” use for the property.

Vigo County Commissioner Mike Morris earlier this year said the abandoned rail could be a future trail from Riley to Idle Creek subdivision.

On June 10, a St. Louis law firm filed a lawsuit in U.S. Courts of Federal Claims on behalf of four Vigo County landowners — Jeffrey M. Butts, Jo Dion Eck, James M. Havens and Terry L. Havens as trustees of The Havens Revocable Trust — seeking $1 million in compensation, plus costs of litigation and attorneys fees.

A response from the federal government in that case is slated for this week.

On Thursday, a second lawsuit was filed on behalf of Idle Creek Golf Course Inc., Timothy Taylor and Amy Taylor.

“Any lawsuit is solely against the federal government, it does not affect the recreational trail project,” said Lauren N. McKenty, an attorney with the Edwardsville, Illinois, based Flint Law Firm.

“We are currently seeking $2 million as well as severance damages, delay damages, interest, expenses, and attorneys’ fees. This number will change as more plaintiffs are added to the case,” McKenty said. “We believe there are about 50 potential claimants that are not currently represented.”

The St. Louis-based Lewis Rice LLC law firm last month held meetings for potential landowners. Now, the Flint firm also plans to hold meetings slated Aug. 19 at 8 a.m., noon and 5:30 p.m. at Idle Creek Golf Course. Landowners who might wish to join the lawsuit are welcome.

The U.S. government has until Oct. 4 to reply to the second lawsuit.

McKenty said the The National Trails System Act (Trails Act) permits the conversion of disused railroad corridors into trails for hiking, biking, and other recreational activities, while preserving the right-of-way for future use as a railroad if such use becomes viable again in the future.

The Trails Act and its implementing regulations, McKenty said, prevent the abandoned railway from reverting to the abutting landowners, and instead grant the trail sponsor a new easement for a new purpose — namely, an easement for a recreational trail.

“Federal courts have long held that landowners whose property abuts a rail line being converted into a recreational trail are entitled to compensation under the takings clause of the Fifth Amendment,” McKenty said. “Although the government may take a landowner’s property, it must pay the landowner fair market value for the property taken. But, if the landowner does not pursue a claim for compensation before the statute of limitation expires, then the government is not required to pay the landowner any compensation.

“The property owner must enforce their constitutional rights by filing suit against the federal government in the United States Court of Federal Claims,” McKenty said.

The takings clause of the Fifth Amendment to the U.S. Constitution says, “Nor shall private property be taken for public use, without just compensation.”

Reporter Howard Greninger can be reached 812-231-4204 or howard.greninger@tribstar.com. Follow on Twitter@TribStarHoward.

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