very yes thank you your honor i don't know if the panel has a particular place i'd like to start in case  as of january twenty sixth of this year the district court here has approved with the concurrence of the federal circuit an award of one hundred ten million dollars plus forty nine thousand six hundred thirty six dollars three thousand and five twenty one sixty five in interest with interest occurring at the rate of four point two percent compounded annually from the dates of taking with respect to individuals who were part of this when the underlying easement was extinguished ok so then that the trails act clearly is relevant their right sort you don't just view that registrars of action is under the little talk or act and it's because of what happened from the trails act that is an element of the claim in that  so in this one you do agree the trails act is key no we're not in a trade in a takings case it is right but i mean but you can't have it both ways either either there's something to take or there's not something to take in the government at least in the federal court of claim concluded that something was taken and that's that's what i think you've given here that's a lot of money i think there's a it is a lot of money it's valuable property but there's a difference between the parties rights in the two cases and one case you're talking about the plaintiffs reversionary interests they were supposed to get used possession and control of that land pursuant to state law when the when the easement was extinguished at the trails that steps and and blocks that reversionary interest when you read those cases about trails that that's what they're about as the plaintiffs reversionary interest being blocked that's different from the defendants easement and what happens to that so it wasn't the easement part of what was taken no these men was not taken all right so these men again the court of federal claims the only thing that was claimed by these plaintiffs was an interest in a fee that was somehow taken as well by the trails act is that right yeah well it technically what what's taken is the right to use possession control that reversionary interest to reclaim where you'd like to have the land of the middle and yes so you're saying that you're saying that the a taking of something yes but my point is there wasn't a final finding and centerline there was a briefing substantial briefing about the centerline presumption and where where there were meets and bounds that issue was reserved for trial and the court there and the believe me the department of justice lawyers are perfectly capable of arguing that stuff and we had our hands full and that same argument was for them to just let go and he  change the title did not need to be so basically the chain of title wasn't mentioned in the settlement basically the settlement occurred because nobody wanted to go to trial on this and it doesn't have any impact on this case so i don't think it has an impact on this case except as on chain of title and i guess i'd like to talk about chain of title a little bit more because in in case berg we obviously took the position based on our experience in so many trails cases that you don't present that evidence he he was a very strong opinion that we should have produced we should have had them to begin with and we didn't have them in our possession when we objected to discovery we didn't get them until later when we needed to try to get them to maintain our case and we chose to get four representative chains of title believing that they would we would be able to prove have many trials later and prove those and not have to incur the expense for all the plaintiffs for all these change of title and so that's what we're trying to do but to the merits of the issue it's i guess it mostly is the same as the hornish case just that there's more and more plaintiffs and so i do think that the decision in a case from the central district of california in a case where involved and where he also sort of projected the horn case burge analysis that was presented to him to say well you know this isn't a question of standing they can come into court and argue what they want when they present their ownership deeds and so they they may or may not show ownership but it's not required that they come in with a chain of title just to have standing and so i berg was sort of followed each other are really outliers on this whole chain of title issue what about the standing aspect of it i mean the court after going through all of this concluded hey you know without proving that you own what you say you own you don't have standing to me seems putting cart before the horse so to me it sounds like just because i don't prevail on my claim means i don't have standing i ought to be able to make the argument and so maybe i don't know if it ends up being a distinction without a difference but nothing that is no basis for stealing if you didn't have them well i would turn that analogy around and say the person does sell apples and i said that he stole apples and just because i i have documentary proof there some rule that says i don't prevail doesn't mean i can't come in and make the argument that and that's what we were doing we were presenting our ownership deeds and saying i mean equitable apples well the fact is we presented our our deeds and for it to be  sentially called america's kind of argument that that's it doesn't give us a standing respect didn't the court say your argument is you own from the middle line of the easement it's only on that basis that you own it your doesn't show there's a wand meets and bounds descriptions that would eliminate that right so you don't own anything from what you present yeah i mean it interferes with these it's very common and in fact it's almost always the case that someone who lives next to a road or highway for that matter will have a deed that shows that the boundary or a plant that shows the boundary as as that easement for obvious reasons you wouldn't want that person thinking they could go cultivate that area or bill put a building on it and so what defendants will commonly do in these kinds of cases a say well you weren't granted that land that's what the whole center line presumption is for is to say  live next to an easement if you have if you only annex to an easement you're presumed owner of the center of it so it fills that vacuum it prevents remnants basically going to a vacuum that no one really would would hold onto  and bounds descriptions and what what is not meets and bounds it's pretty obvious it has to have boundaries has a call outs you know this many feet from this post to this post that's your meat and has to have it has to   similarly king county will say any time there's an exception that that's meets and bounds though include those in those categories where i strongly contend that an exception is just means subject to the existing easement for the same kind of reasons you're telling the grantee that you are allowed to own the land next to the easement but it's subject to the rights of a third party so you don't interfere with that that's what the soberest case is from washington and kershaw dops that so when you have an exception you have to look very closely what are they really trying to do here it's not just the knee jerk what that means you don't own it no the they're putting the world on notice and the grantee a notice that there's another easement out there that they can interfere with let's talk about what the court did if i understand it correctly the court said like this is your burden i ask you to produce this very early on you're go prejudice these defendants you didn't produce it it's your burden to show that you don't get your property by means and bounds without evidence that that's not the case you have no presumption that you're entitled to ownership of the la the median strip therefore you have no ownership that would give you standing right why is the court wrong i think for a variety of reasons your honor starting with the fact that for reasons we've already discussed we don't think change should have been necessary all we should have to do is present or ownership deed the ownership deed rob presented the current ownership deeds and so we think that should should have been enough in terms of the actual  reading of the deeds you have the secondary problem that i just mentioned of are these really meets and bounds or not what's the effect of exclusions see kershaw's obrist those are other reasons and then finally there's the striking of the change themselves and we have a portion in our our brief about that they should have been struck we as counsel or given a sanction have to be one which we settled and paid and  we don't think our client should be punished for our delay which we are we obtained at the change of title in january and we produced them in july i'm sorry june of the same year five months later of course there's some time to review those chains of title so i would argue there's maybe a four month to lead it's also at a time after we had lost in a summary judgment motion where we thought that we might be taking in a like a tory appeal or having many representative trials and so not producing them was was not intentional we were not flouting just in the you needed them i'm sorry you didn't think you needed them we thought we might not need them because we thought was going to go away and so  this isn't a case where someone just found a document we behind we've been hiding and we produce it on the eve of trial a truck course discretion is curtailed when you're going to give the extreme sanction of essentially the death penalty which at this is what amounted to  dismissing a case and so we cited some some cases where there's been much more consistent egregious conduct which the ninth circuit reversed and said no that you need to look at alternative methods and we don't think king county was prejudiced they didn't even need an extension of time to file their reply so if it comes to that we would certainly ask that they not be struck and that they be allowed in evidence we think it at a minimum there's factual questions if we have to if we have to go back well after the court ordered to produce to change the title in what did you do did you go out and try to collect them and you tell the court we're having trouble getting these are why was the court concerned that you just hadn't responded well what happened was we lost a summary judgment motion in october around that time i think was a little bit before maybe that we had lost on the discovery issue about whether we needed to produce to get change title so when we lost on the summary judgment motion there was a question of well what are we going to do now we're going to go spend you know hundred thousand dollars plus of our clients money ultimately to get these changes when it doesn't look so good so we just we made the strategic decision after meeting with the steering committee of plaintiffs to get four cha representative chains so you made the strategic decision that you were going to comply with a court order no no no no no we made the decision we didn't have them at the time we would have to change the title when the court ordered us to produce so we had to go out and get them so we didn't get them january of two thousand and sixteen and so that until after you lost the summary judgment motion yes yes and there was a partial summary judgment motion and so there were more issues that came up later in the second round of summary judgment motions and that's when we we responded in then voluntarily produced the documents so we certainly may never had any type of intention to withhold documents and not produce the court obviously felt differently in order that we review that for abuse of discretion right well yes and we're not here talking about the sanction against the attorneys though we're talking about the sanction on it and their discretion is curtailed  in the i'm going to pronounce it for gel stad case sixty two f second thirteen thirty four the ninth circuit reversed the imposition of a default judgment which there is a long history of  discovery of use and so that that's how to curtail i'm still confused the court granted the motion to compel you had you had an order from the court to compel the production of these documents yes we didn't have them at that time though i know you didn't but there's an order from the court did you did you would you do in response to that we went out and got four chains i mean i think that first why did the court feel that you hadn't responded in  that i think the courts issue with us in that regard was that there was when we obtained after we have changed obtained the change in january that we didn't produce them until june why why did you wait to do your honor it was simply a matter of getting distracted with the press of business and and not having on the my our minds it wasn't there was no intentional decision it was just an oversight yours of the court's order was july of two thousand and fifteen and you produced them in june two thousand and sixteen no i think the court's order on discovery was in the fall of two thousand and fifteen but that's only documents in our possession and control and so we went out and got documents to be in our possession our control over the next few months ok and then we had a five month delay in producing once we obtained them in the five with the delay was just an oversight yes your honor it was right behind the i'm going to be trying to go quickly because i have a lot to say in my eight minutes first to correct the record in the prior case and hornish point have said that the chains of title were in the record however the chains of title were attached to the declaration of john raul and the court struck john rawls declaration as part of the proceedings in that case and the plaintiffs have not appeal trial they're not in the record from your perspective that's right that's correct expert mr greenleaf opine that that is essentially the fee that all you of those portions of the right of way that is unopposed evidence below it is because what is being taken or what is not reverting is substantial right that includes subsurface aerial rights and we know that that's the case because in haggard the court there talked about the fact that it was included in trance it's possible passenger trail use as an interim use we also know about it because in a related case i apolo the same plaintiffs brought in inverse condemnation class action against king county in these defendants for their subsurface an aerial rights that case was dismissed because the court concluded that they were already receiving compensation for the subsurface and aerial rights in the haggard case and the plaintiffs did not appeal that decision can you clarify this for me middle of the easement included in the award that the court of federal claims is made so in the federal court of claims it's not that the fee was taken what is being taken is the railroad easement it's being stopped from reverting to these landowners and the value that is given to that in the takings case is essentially a fee that to you because the easement is so substantial that's where i'm having some trouble as i look at this and there obviously are not a really great map of it but it looks like you have a little piece little piece there no big deal unless you have the right to get to the middle of the easement then you're talking about some substantial property it almost looks to me like the court of federal claims without saying so and i realize that in the settlement nobody really specify this folks are being compensated for the taking of their interest in property up through the middle of the easement is that correct well either the middle of these men or the entirety of the eastman i think there is either way though it is contrary to the position of the county it is contrary to the position of the plaintiffs in this case because the plaintiffs here are saying all of our rights have been taken in and haggard and we're going to compensate a lot of money there but we're going to come here in this court and argue that we get to still control don't really own very much anyway because they don't get it they don't get to go to the middle of the easement some of them a little bit of this and some have a little bit of that but not much in any event it's all the prescriptive easement that we have overcomes all of that so you have to take something and the court of federal claims concluded that they were something had been taken i'm just trying to understand what the court of federal claims think was taken i believe the federal court of claims believes what's being taken is compensated for something yes they might that's a lot of money it is ok it is with respect to the centerline presumption i would just like to point out a couple of things since that's come out an argument in case for gk this issue was raised and litigated as part of king county's motion for summary judgment so we had asked for these chains of title in discovery we didn't get them we brought up our motion for summary judgment which raised the fact that their current deeds which produced and so when we're talking about the center one presumption in this case what we find is there was in the end no material question of fact about whether they could use the centerline presumption because the court found that they had not come forward with  t evidence for the vast majority of plaintiffs now even with respect to the four chains of to get in that then from your perspective when i gather the court as well it was essential but the plane has produced a chain of title in order to be the beneficiaries of the presumption is their right well that's part of it your honor actually the change of title tell us a lot more than just the center line of presumption and so what we learned from one of the change the title was a deed that nobody had ever seen before that showed that the predecessor to the garden of eden plat which is a substantial piece here had actually there there was a prior deed that had deeded all of that land for the right of way previously and so when the hilman had it he didn't actually have anything to convey and so that is a deed that we didn't know about and certainly it would have changed the way that we argued summary judgment so so when there was a request for production of documents to the plaintiff for the change of title it was for more than just the presumption correct it was it was relevant for other issues absolutely in that a discussion ever come up it during the discovery dispute as to why you want these yes it did  it was precisely for these things of trying to understand what had happened over the course of the history of this land to make sure that we all of us understood the and easement questions that were coming up who owns the revisionary interest so for instance we know things like there is a condemnation and the question is is everybody understands that's an easement but who holds the revisionary interest is that these plaintiffs or is it the state of washington same for the lake washington company there are issues about who you know and so the chains of title are critical for us understanding all of those issues so it just is not just the center of my presumption remember which which railroad i believe i'd have to go back and check the record on that i have very little time left you have no time left how much more do you have to say well i could talk i'm sure i love this rail argument to this court that the plain language of the trails act actually supports the fact that king county has the railroad easement it's the language that's omitted it says this trail sponsership have full responsibility for management of such rights of way legal liability arising from such transfer or use and those two sentences refer back to the preceeding paragraph which talks about such rights away for railroad agree that the n s f held at least a railroad easement through the disputed corridor this is significant because railroad easements provide the holder with the exclusive possession and control over the corridor necessary for an intensive use like constructing an operating a railroad given the feel like nature of these railroad easements washington courts have held that the railroad corridors can be used for any purpose not whether telecommunication equipment was incidental use of a railroad corridor and in that case the the court said it was now up on appeal to the supreme court the supreme court reversed not on that grounds the supreme court said this telecommunications company was required by state statute to proceed under an eminent domain theory and couldn't get it by purchase and so ultimately reversed that decision but then later on in the washing securities versus horse heaven there's the question i had before maybe you can help me is that if the railroad owned a fee i get your point under washington law but look to the railroad only on a prescriptive use minister a particular piece of property along comes the trails act the county or the port takes it over it got what the railroad own which was a prescriptive easement for railroad uses are you saying that under the incidental use doctrine of the state of washington that even though all you had was a prescriptive easement which was used to do certain specific things by virtue of the nature of a prescripti prescriptive event provided the equivalent of a railroad easement then the incidental use dr and one hundred percent applies one of the arguments that we hear from the plaintiff this is well we don't think that these are incidental uses these are you know big power lines and such but the insulin use doctrine does not focus on what the adjoining property owners think of the use it focuses on whether the use is incidental to the railroad operations and on that the test is clear is the power lines sewer lines etc inconsistent with railroad operations and on this point i think it's important to note that since the mid one thousand eight hundred p s e and its predecessor companies have been obtaining gas and electric utility rights through the court or without objection under the incidental use doctrine others have obtained sewer lines water lines the right to put in fiber optics and telephone lines so this corridor has to use the bundle sticks analogy a bundle of utility sticks or the plan of say i was those uses from the corridor because it's been real banks with no explanation of how that should be handled and we'd submit there's nothing in the federal when it's talking about preserving the railroad right away that indicates any intent to oust incidental uses which could provide income for the trail operator to maintain the trail as well as preserve the co they ran around road yeah and once you run a railroad because at least the case law i would argue supports applying the same incidental use dr and because when you run around road you build bridges you tunnel you need to keep people away from the tracks you're subject to a lot of potential liability if someone goes on the track so that operating a road requires exclusive possession and control washington loss of ports that use of the railroad corridor and i think it takes you straight to the in l use dr and questioned by my colleague all right thank you very much the final counsel for the defense is matthew segal from sound transom i'm always glad to hear the transit  and the ground had been well plowed i think we're probably at that point today so i'm happy to answer any runs that on the ok i will i may sit down before the end of my time if the court does not questions on  but i i i did first of all want to emphasize that there are no prescriptive easements at issue in this case there are no news there are none and with respect to the chord or that sound transit's rights derive from their two source documents they're both in the record transcripts and the originals that's the beltline deed and the condemnation judgment and so those are where the rights derive from there's also no dispute with respect to sound transit's portion of the chord or that this is a rail easement and that we wish to use it for real purposes namely passenger rail which was incorporated within the language of the original really isn't your particular isn't the one that was more down by the water and was acquired differently than some of the rest of it or that a different one well we're along the east side of lake washington as you head south towards rant and that's that's the portion of it and that you are nine hundred series has a sort of list of maps that shows the exact segments of that corridor  and in that respect also there's no issue with that particular portion of the chord or about whether the ownership is in easement or in fee in other words we agree it's an easement now the court asked what was taken and i  think that's also a critical question because it really does defeat the interpretation of the trails act that's being urged by the appellants what was taken is is the interest that would have reverted back to those playing to from this  easement had the easement been abandoned by operation of state law namely the last case which was discussed in the hornish decision and so if that state law had been applied without the benefit of the trails act then what would have happened is they would have received a sensually a fee interest back in the entirety of that area that's otherwise subject to the easement but they did not and so the u s supreme court in the praise salt decision said that can be a taking because you're denied your of claims has then refined that further and said the taking occurs when the need to is issued it might be temporary if there is not a trail agreement reached or it might be permanent if there is one reached and it was in this case there was one reached and they were compensated what were they compensated for this is also really critical and if you look at the haggard decision you see they were compensated for and after interest which is their their property burdened by an easement that includes not only but also light rail or commuter rail and that's critical because you see in some of these court of claims cases cited in the briefing here that the u s government initially had said well really you should only be compensated for a property burdened by a trail and the court of claims has said no no that's not true because there's also utilities or there are other interim uses there and so you get paid for that too and they they have been in your view that would recognized in effect the incidental use doct b has frequently recognized uses for utilities and also uses for interim light rail transit streets we've cited a number of those administrative decisions in our briefing the baltimore and ohio decision is probably the most significant one but there are many and what they show is that these types of projects are taking place all over the country in other words you have these core doors being preserved there's a lot of value in the corridors being preserved multi jurisdictional efforts are made to preserve the corridors and to not only create the trail which is really only one component of the of the trails act but to fund preservation of that area and maintain it for possible reactivation and how do you do that with trails don't necessarily pay for themselves and so you do fund that with other types of interim uses if those uses were allowed under the state law instrument at issue and that can be light rail transit can be easy it can be roadways all sorts of things and the qualifications are but one of your colleagues i believe a new this is the other case talked about how there were special use permits that were granted and that the very fact that those have been granted to some of the plaintiffs is evidence that they recognize that the county in that case had interests that permitted them to use the property these people use the counties probably is that a fair analysis i am not familiar with that would the granting of special use permits by the county because you're correct that doesn't really apply to are used i think what what puget sound energy was saying if this is what the court's alluding to is that there were uncontested or on objected to uses of the cord or by utilities and also for that matter through passenger service over the past one hundred years and if the courts asking why is that relevant the answer to that would be that under washington state law the subsequent conduct of the parties and the successor does serve as an evidentiary value to interpret the scope of an easement and so if you've seen that type of activity going on for an extended period of time without objection in particular that's considered to be further evidence that that is something that was contemplated as within the scope of the easement so i would also finally add your honor that there was a summary judgment motion brought by sound transit granted by the district court confirming that sound transit this is a separate motion had rights that included not only surface rights but aerial rights and subsurface rights consistent with the normal and necessary operation of a railroad that grant or summary judgment is not challenged on appeal and should be affirmed i thought so correct on the merits for the reason points and then also answer your own earlier question grable in little bit more detail if i could number one there was a reference to hornish about a declaration being struck the chains were not struck the source evidence was not struck the chains are still in  you're sure i believe so your honor i don't i don't recall any order that the chains themselves were struck usually that the court would just say you know were the evidence as you know i think it was  question about the foundation and the court just struck it i don't remember that for the attached this was about whether his opinions invaded the province of the court right about you know whether they showed right yeah but i don't remember the a second thing i say about prescription is all the stuff about special permit ing other deeds they use is they use and that's your limitation of these men and that was a stablished one hundred years ago and that hasn't changed that uses been the same so no matter what somebody is saying even a plaintiff is saying about what i think they're what i what i think the boundary is the uses they use and that's the easement so you heard the argument by distinguished counsel that incidental use is part of washington law and a lot of case law to back it up what's your response to that well i think it's not fully developed i mean just judging by the  only case dealing with there's not the only case but what i would say here and this actually highlights the subject major stiction argument that we're making is that there incident only use doctrine depends on there being exist being an existing railroad easement and so in response to that defense we say it was extinguished when trail use was allowed that's why there's no incidental uses allowed it's because trail use which lawson says is beyond the was to say there's a substantial federal interest in having tax issues litigate in federal court here there's no federal substantial interest which is a special category of small and special category of cases there's no substantial federal interest because this is about local infrastructure and whether it's going to be put in no one's trying to stop the trail believe me the trails act is going to go on fine and while it's a grassroots effort they're being converted all over the country all the time this nothing about this case is going to affect that thank you can thank you you know the question my colleagues we thank all counsel of your argument have been very helpful we are grateful to have the audience that we have today and hopefully you have found this at least you can see what courts of appeal do at least in public