Fifth Amendment Takings Law

Among its varied responsibilities, the Natural Resources Section defends all real property claims brought in the United States Court of Federal Claims arising under the Just Compensation Clause of the Fifth Amendment to the United States Constitution. Also known as the "Takings Clause," it states: "nor shall private property be taken for public use, without just compensation." This provision does not prohibit the United States from acquiring property from private owners, but rather conditions such 'taking' on the payment of just compensation. 

Unlike direct condemnation claims, in which the United States institutes suit to compensate property owners for property it has acquired through the exercise of eminent domain, the Natural Resources Section's jurisdiction encompasses so-called "inverse condemnation" claims. In these cases, private property owners sue the United States when they believe that some government action has interfered with the use and enjoyment of their property. Such government actions can be:

• physical in nature, such as permanent flooding of property abutting a river caused by the construction of dam, or
• regulatory in nature, such as the denial of a permit under the Clean Water Act to dredge and fill wetlands.

The number and scope of takings claims defended by the Section has grown with the changing climate disrupting the maintenance and operation of government managed projects. 

One particular area in which NRS is responsible for defending Fifth Amendment takings claims involves the preservation of railroad corridors and the development of rail-trails under the National Trails System Act, 16 U.S.C. § 1247(d). In these lawsuits, the plaintiff landowners seek compensation for a taking of their property interests in these corridors due to the conversion of the corridors from active rail use to trail use and preservation for future rail use. NRS has defended claims involving rail-trails across the country, from the 240-mile Katy Trail in Missouri to the now iconic elevated High Line in Manhattan.