# Preseault v. Interstate Commerce Commission

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## Concurring Opinion

    O'Connor
United States Supreme Court
494 U.S. 1
Preseault v. Interstate Commerce Commission
No. 88-1076 Argued: Nov. 1, 1989. --- Decided: Feb 21, 1990
Syllabus
Because pre-existing federal law failed to deal adequately with the national problem of shrinking rail trackage, Congress enacted the National Trails System Act Amendments of 1983 (Amendments) to the National Trails System Act (Trails Act), which authorize the Interstate Commerce Commission (ICC or Commission) to preserve for possible future railroad use rights-of-way not currently in service and to allow interim use of the land as recreational trails. Section 8(d) of this so-called "rails-to-trails" statute provides that a railroad wishing to cease operations along a particular route may negotiate with a State, municipality, or private group prepared to assume financial and managerial responsibility for the right-of-way. If the parties reach agreement, the land may, subject to ICC-imposed terms and conditions, be transferred to the trail operator for interim trail use notwithstanding whatever reversionary interests may exist in the property under state law. If no agreement is reached, the railroad may abandon the line entirely, thereby allowing the property to revert to abutting landowners if the terms of applicable easements and state law provide for such reversion. After Vermont Railway, Inc., stopped using a right-of-way adjacent to petitioners' land in Vermont, petitioners brought a state-court, quiet title action, alleging that the railroad's easement had been abandoned and thus extinguished, and that the right-of-way had therefore reverted to them under state law. Holding that it lacked jurisdiction because the ICC had not authorized abandonment of the route and therefore still exercised exclusive jurisdiction over it, the court dismissed the action, and the State Supreme Court affirmed. Petitioners then sought a certificate of abandonment from the ICC, but the Commission granted a petition to permit the railroad to discontinue rail service and transfer the right-of-way to the city of Burlington for interim trail use under § 8(d). The Federal Court of Appeals affirmed, rejecting petitioners' contentions that § 8(d) is unconstitutional on its face because it takes private property without just compensation in violation of the Fifth Amendment and because it is not a valid exercise of Congress' Commerce Clause power.
Held:
1. Even if the rails-to-trails statute gives rise to a taking, compensation is available under the Tucker Act, and the requirements of the Fifth Amendment are therefore satisfied. Since the Amendments and their legislative history do not mention the Tucker Act-which provides Claims Court jurisdiction over claims against the Government to recover damages founded on, inter alia, the Constitution-the Amendments do not exhibit the type of "unambiguous intention" to withdraw the Tucker Act remedy that is necessary to preclude a claim under that Act. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019, 104 S.Ct. 2862, 2881, 81 L.Ed.2d 815. Section 101 of the Amendments-which provides that "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"-does not, as petitioners claim, indirectly manifest the necessary intent by rendering "unauthorized," as not approved by Congress for payment in advance, any rail-to-trail conversion that could result in Claims Court litigation. Since § 8(d) speaks in capacious terms of interim use of any right-of-way, it clearly authorizes conversions giving rise to just compensation claims and therefore does not support petitioners' contention. That there is no explicit promise to pay for any takings is irrelevant, since the Tucker Act constitutes an implied promise to pay just compensation which individual laws need not reiterate. Moreover, § 101 speaks only to payments under the Amendments themselves and not to takings claims that "arise" under the Fifth Amendment and for which payments are made "under" the Tucker Act from the separately appropriated Judgment Fund. Nor do statements in the legislative history indicating Congress' desire that the Amendments operate at "low cost" demonstrate an unambiguous intent to withdraw the Tucker Act remedy, since a generalized desire to protect the public fisc is insufficient for that purpose, see, e.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 127-128, 95 S.Ct. 335, 350-351, 42 L.Ed.2d 320, and since the statements might simply reflect Congress' rejection of a more ambitious program of federally owned and managed trails. Because petitioners' failure to make use of the available Tucker Act remedy renders their takings challenge to the ICC's order premature, there is no need to determine whether a taking occurred. Pp. 11-17.
2. The Amendments are a valid exercise of Congress' Commerce Clause power. The stated congressional purposes-(1) to encourage the development of additional recreational trails on an interim basis and (2) to preserve established railroad rights-of-way for future reactivation of rail service-are valid objectives to which the Amendments are reasonably adapted. Even if petitioners were correct that the rail banking purpose is a sham concealing a true purpose of preventing reversion of rights-of-way to property owners after abandonment, the Amendments would still be valid because they are reasonably adapted to the goal of encouraging the development of additional trails. There is no requirement that a law serve more than one legitimate purpose. Moreover, this Court is not free under the applicable rational-basis standard of review to hold the Amendments invalid simply because the rail banking purpose might be advanced more completely by measures more Draconian than § 8(d)-such as a program of mandatory conversions or a prohibition of all abandonments. The long history of congressional attempts to address the problem of rail abandonments provides sufficient reason to defer to the legislative judgment that § 8(d) is an appropriate answer. Furthermore, in light of that history, Congress was entitled to make the judgment that every line is a potentially valuable national asset meriting preservation even if no future rail use for it is currently foreseeable, so that the fact that the ICC must certify that public convenience and necessity permit abandonment before granting an interim trail use permit does not indicate that the statute fails to promote its purpose of preserving rail corridors. Pp. 17-19.
853 F.2d 145 (CA2 1988), affirmed.
BRENNAN, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, in which SCALIA and KENNEDY, JJ., joined, post, p. 17-19.
Michael M. Berger, Los Angeles, Cal., for petitioners.
Brian J. Martin, Washington, D.C., for federal respondents.
John K. Dunleavy, New York City, for state respondents.
Justice BRENNAN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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