Landowners with property along the planned Ecusta Trail have sued the federal government for compensation and are waiting to hear whether the United States will accept liability and compensate them for land essentially confiscated in the creation of the trail between Hendersonville and Brevard.
Attorney Lindsay Brinton, with St. Louis firm Lewis Rice LLC, filed the updated suit Nov. 3 in the case, dubbed Austin v. United States, representing about 175 claims, she said.
“The federal government took these North Carolina owners’ property and the Just Compensation Clause of the Fifth Amendment to our Constitution requires the federal government pay these owners for what the government took,” the suit says.
While it's still early in the process, Brinton said those homeowners, if successful, could see anywhere from a few thousand dollars to hundreds of thousands of dollars depending on appraisals for each parcel.
She said that the suit is only against the federal government and won't have an impact on the ongoing work to construct the trail, with some clients in favor of the trail and some against.
Brinton told the Hendersonville Times-News in August that landowners have shared concerns of trespassing, loss of privacy, loss of river access and impact on farming operations.
Local governments and the state of North Carolina have contributed funds to the project, spearheaded by the Friends of the Ecusta Trail, which is railbanking the 19-mile, abandoned railroad track in Henderson and Transylvania counties to create a pedestrian trail.
With an infusion of $600,000 in the latest state budget, the Ecusta Trail is set to break ground on the first 6 miles of trail in spring 2022.
Now landowners who leased property to the railroad, not those who sold their property, are seeking compensation for land effectively confiscated by the trails agreement in June 2021, according to the suit.
The suit asks the court to require the federal government to pay the full fair-market value for the property, pay them compensation for the delay between June 2021 and when the payment takes place and to reimburse litigation and attorneys' fees.
Railbanking, the method used to create the Ecusta Trail, preserves the railroad corridor for future use as a railroad, but the law creates a system that transfers ownership directly to the trial organization, bypassing easements private property owners had with the railroad company.
In question is section 8(d) of the National Trails System Act, which established railbanking in 1983, according to the Rails to Trails Conservancy, a law that has now accounted for the creation of more than 4,200 miles of rail-trails nationwide.
It’s a voluntary agreement between a railroad company, in this case Blue Ridge Southern, and a trail agency, in this case Ecusta Rails2Trails LLC, to use an out-of-service railway as a trail until the railroad may need the route for service again.
The agreement transfers ownership to a private organization or public agency, and as Rails to Trails’ website explains, the “property transfer precludes abandonment. In other words, because a railbanked corridor is not considered abandoned, it can be sold, leased or donated to a trail manager without reverting to adjacent landowners.”
That federal law trumps the North Carolina state law that would have returned land under easement to the property owners once the railroad abandoned the line, Brinton said.
Section 8(d) allows the railroad to sell the land to a non-railroad entity for a different purpose, she said.
The lawsuit argues that it's now up to the federal government to compensate owners for land lost from easements now owned by the trail organization.
On Nov. 17, U. S. Assistant Attorney General Todd Kim filed an initial answer to the lawsuit's claims, denying them.
Brinton said it's a "boilerplate filing" with "no real significance."
She said they have provided the court with a claims book of documents supporting each claim, including deeds, GIS snapshots showing the parcels, the original conveyance to the railroad that created the rights of way and tax records showing the owners owned the property at the time of the railbanking agreement.
The government will go through those documents and either accept liability or dispute it, Brinton said.
If disputed, the case will move on to the court, where she and Lewis Rice attorney Meghan Largent, also representing the landowners, will file briefing papers and oral arguments will be scheduled.
The process normally takes about two years, she said, though if disputed, it could take longer.
"The biggest issue will be proving that the railroad only had an easement," Brinton said, noting that proving ownership of the lots will be easier, and something they are confident they'll accomplish.
In some cases, she said, it may mean looking at deeds that date back to the 1800s to show that the owner of the property only intended for the railroad to have an easement, and that the easement was for railroad purposes only, and wouldn't include a recreation use some 150 years later.
Austin v. United States isn't the only lawsuit representing landowners seeking compensation for land in relation to the Ecusta Trail, with another case filed by attorneys with another St. Louis firm, True North Law.
In August, Brinton said she and Largent have helped thousands of landowners recover just compensation, including cases successfully settled in North Carolina.
She said she feels confident in this case.
Derek Lacey covers health care, growth and development for the Asheville Citizen Times. Reach him at DLacey@gannett.com or 828-417-4842 and find him on Twitter @DerekAVL.
This article originally appeared on Asheville Citizen Times: Landowners sue for compensation after seizure of land for Ecusta Trail