Could Maine condemn an unsafe or unreliable private rail line and transfer its operation to another railroad?

Plain-English summary

The Speaker of the Maine House asked whether the Legislature could authorize condemnation of rail lines that were not being operated safely, reliably, or efficiently, followed by transfer of those lines to other rail operators.

The Attorney General’s office identified two federal constitutional questions. First, federal railroad law could preempt a state condemnation statute under the Supremacy Clause. The opinion found no specific provision in the Interstate Commerce Act or the cited federal railroad-safety statutes that prohibited state or local governments from condemning railroads, and it noted precedents involving public acquisition of private railroads.

Second, the Fifth Amendment required a taking to be for public use. The opinion said state condemnation followed by state operation would present no apparent problem, but immediate transfer to another private party raised a public-use question. It suggested that the state retain ownership and use a contract, lease, or similar arrangement for private operation. The letter stressed that its advice was general because the office had limited time to research the question.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who the opinion addressed at the time

Maine legislators

The opinion did not identify a categorical constitutional bar to the proposed legislation. It recommended structuring any bill so that the state retained ownership of a condemned railroad while another operator ran it under contract, lease, or a similar arrangement.

Railroad operators and property owners

The opinion treated federal preemption and the Fifth Amendment public-use requirement as separate issues. Its proposed state-ownership structure was aimed at preserving the public aspect of the transaction rather than deciding every possible condemnation arrangement.

Common questions

Q: Did the opinion find that federal railroad law preempted state condemnation?

A: No. Based on the statutes reviewed, the opinion found no specific federal provision prohibiting state or local governments from condemning railroads.

Q: Could Maine condemn a railroad and immediately give it to another private operator?

A: The opinion did not give an unqualified yes. It said that an immediate private transfer raised a public-use question under the Fifth Amendment.

Q: What structure did the opinion suggest?

A: It suggested that the state keep ownership of the rail line and allow another private party to operate it by contract, lease, or a similar arrangement.

Q: Was the opinion a final analysis of a specific bill?

A: No. The letter said the advice was necessarily general because of the limited research time and offered further work on legislative details.

Background and constitutional framework

The Supremacy Clause of Article VI made federal law controlling when Congress displaced state authority. The opinion reviewed the Interstate Commerce Act, 49 U.S.C. § 10101, et seq., and federal railroad-safety provisions at 45 U.S.C. § 421, et seq. It found extensive federal regulation of rates and safety but no apparent ban on public ownership of railroads through acquisition or condemnation.

The Fifth Amendment’s Takings Clause required condemnation to serve a public use. The opinion distinguished state ownership and operation from a transaction that immediately transferred the property to another private party. Retaining public ownership, in the office’s view, would preserve the public character of the arrangement and reduce the constitutional concern.

Citations and references

Federal provisions:

• Article VI of the United States Constitution, the Supremacy Clause
• Fifth Amendment of the United States Constitution, the public-use requirement
• 49 U.S.C. § 10101, et seq., the Interstate Commerce Act provisions cited in the opinion
• 45 U.S.C. § 421, et seq., the railroad-safety provisions cited in the opinion

Cases:

• Chicago and Northwestern Transportation Co. v. United States, 678 F.2d 665 (7th Cir. 1982)
• Port Authority Trans-Hudson Corp. v. Hudson Rapid Tubes Corp., 231 N.E.2d 734 (N.Y. 1967)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880203.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

February 3, 1988

Honorable John L. Martin
Speaker of the House
House of Representatives
State House Station #2
Augusta, Maine 04333

Dear Speaker Martin:

You have inquired of this Department whether there is generally any constitutional impediment to the enactment by the Maine Legislature of legislation authorizing the condemnation of rail lines when such lines are not being operated safely, reliably, or efficiently, and the transfer of those lines to other rail operators.

The question which you pose involves two separate clauses of the United States Constitution. First, the condemnation statute would have to be found not to have been “preempted” by any act of Congress, and thus unconstitutional under the Supremacy Clause of Article VI of the United States Constitution. Second, any statute authorizing the condemnation of private property would have to comply with the requirement of the “Taking” Clause of the Fifth Amendment of the United States Constitution that the condemnation be for a “public use.”

With regard to the preemption question, there does not appear to be any specific provision, either of the Interstate Commerce Act, 49 U.S.C. § 10101, et seq., or of the provisions of the United States Code relating to railroad safety, 45 U.S.C. § 421, et seq., which prohibits state or local governments from condemning railroads. Those statutes, which generally are concerned with rates charged by railroads and the safe operation of railroads, respectively, do have extensive provisions relating to state regulatory activities in these areas, but they do not appear to prohibit state ownership, by acquisition or otherwise, of railroads. Indeed, the condemnation of private railroads by public authorities is not without precedent. See, e.g., Chicago and Northwestern Transportation Co. v. United States, 678 F.2d 665 (7th Cir. 1982); Port Authority Trans-Hudson Corp. v. Hudson Rapid Tubes Corp., 231 N.E.2d 734 (N.Y. 1967).

With regard to the “Taking” Clause, while there clearly would be no difficulty with the state condemning a railroad and operating it itself, a question does arise as to whether the immediate transfer of the railroad to another private party would constitute a “public use” within the meaning of the Clause. In view of this question, this Department would suggest that if legislation authorizing condemnation were proposed, such legislation contain provisions for the retention of ownership of the railroad in question by the state and its operation, by a contract, lease or otherwise, by another private party. In this manner, the public aspect of the transaction would be preserved, and any concern that the statute violated the “public use” component of the “Taking” Clause would be minimized.

In view of the limited time available to research your question, the advice contained in this letter is necessarily general. This Department remains available, however, to work with you and the Legislature in developing the details of the legislation in order to avoid any constitutional difficulties.

Sincerely,

Deputy Attorney General

CH/ec