Arent Fox partner Thor Hearne was featured in a front-page, 1,100 word article published in the October 31, 2011 edition The National Law Journal reporting on so-called “rails-to-trails” cases, which the newspaper labels “the fastest-growing area of Fifth Amendment ‘takings’ litigation against the United States.”

In the article, “DOJ Derailed in Land Cases,” National Law Journal reporter Mike Scarcella writes:

The US Department of Justice has suffered a string of recent defeats over compensating landowners for the conversion of old railways into public trails, potentially exposing the government to millions of dollars in liability. Lawyers in the DOJ Environment and Natural Resources Division are fighting on two fronts — in the US Court of Federal Claims and in the US Court of Appeals for the DC Circuit — to limit the number of future claims in these so-called "rails-to-trails" cases.

For the government, the trails cases make up the fastest-growing area of Fifth Amendment "takings" litigation against the United States, and DOJ is currently grappling with more than 10,000 claims, according to a report the department published this year. Thousands of miles of abandoned railway lines have been turned over to public use since the 1980s in at least 33 states, including Florida, Kansas, Pennsylvania and Texas.

In one pending case in the Washing­ton-based federal claims court — a property rights dispute about land in Arizona along the US-Mexico border — DOJ has taken a position in the litigation that lawyers for the landowners describe as an "egregious" attempt to stall the civil action and to shirk liability altogether.

Arent Fox litigation partner Mark "Thor" Hearne II, the lead attorney for the Arizona plaintiffs, said in a Sept. 30 court filing that DOJ "invites this court into a Hall of Mirrors, a trip down the rabbit hole into a world where lower courts disregard" the rulings of a higher authority.

The DOJ strategy, he said, highlights a win-at-all-cost approach in an effort to block subsequent claims for compensation. A federal claims judge in an unrelated trails case ruled against DOJ on Oct. 25, continuing the string of losses.

"The decision of the Federal Circuit arose on fully briefed, fully argued motions on every aspect of liability," Hearne said in an interview. "The government argued its entire point on liability — every feature of it. It's particularly outrageous that the Department of Justice would try to reargue liability now."

To read the full National Law Journal article, please click here.