In the United States Court of Federal Claims

No. 16-1633L

(Filed: May 17, 2018)

* * * * * * * * * * * * * * * * * * * * * *

WILLIAM O. BANKS, et al., 

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

* * * * * * * * * * * * * * * * * * * * * *

Fifth Amendment Taking;

Rails-To -Trails; Right-ofWay Easement; Notice of

Interim Trail Use; Consent

to Do Harm; Fee Estate;

State Law Reversionary

Interest.

Mark Fernlund Hearne, II, Washington, DC, with whom were Lindsay

S.C. Brinton, Meghan S. Largent, Stephen S. Davis, and Abram Pafford, for

Plaintiffs.

Paul George Galindo, Trial Attorney, United States Department of

Justice, Environmental & Natural Resources Division, Washington, DC, with

whomwas JeffreyH. Wood,ActingAssistant AttorneyGeneral, for Defendant.

OPINION

Plaintiffs in this action are Lafayette County, Missouri landowners who

assert that the United States took without compensation interests in their real

property contrary to the Fifth Amendment to the Constitution. Plaintiffs allege

that their predecessors-in-interest sold right-of-way easements along a

2.91-mile-long strip of land to the Wyandotte, Kansas City and Northwestern

Railroad solely for operation of a railway in or about 1873. They allege that

the United States, acting pursuant to the National Trails System Act1

(the

1

In 1983, Congress enacted the National Trails System Act Amendments of

1983, Pub. L. No. 98-11, 97 Stat. 42, to the National Trails System Act, Pub.

L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. § 1241

et seq.) (2012). Trails Act creates an an alternative to immediate abandonment
“Trails Act), took a new easement across their underlying fee interest in those

same lands in February 2012 when the Surface Transportation Board (STB)

invoked section 8(d) of the National Trails System Act and issued a Notice of

Interim Trail Use (“NITU”), postponing plaintiffs’ immediate right to full use

of the surface. 

Pending are the parties’ cross-motions for partial summary judgment. 

Plaintiffs’ motion seeks a ruling in their favor on liability, after which the court

should proceed to the valuation phase. Defendant’s cross-motion asks the

court to deny plaintiffs’ motion and defer ruling on liability. Defendant also

seeks a preliminary ruling as to three particular parcels of land, asserting that

plaintiffs either do not own the fee, or have waived any objection to the

conduct of the United States. 

BACKGROUND

The railroad corridor in question stretches from milepost 246.49 near

Myrick, Missouri, to milepost 243.58 in Lexington, Missouri. The Union

Pacific Railroad is the most recent successor in interest to the Wyandotte,

Kansas City and Northwestern Railroad. On January 31, 2011, Union Pacific

petitioned the STB to abandon the line. On February 16, 2012, the City of

Lexington requested the STB to invoke section 8(d) of the Trails Act and issue

a NITU, which it did on February 24, 2012. In the interim, a series of

extensions have been issued to the original NITU, with the most recent

expiring on January 24, 2018. 

DISCUSSION

There are fourteen parcels at issue, owned by five plaintiffs. The

parties have agreed on a numbering system and, as to most of the parcels, have

also agreed that the railroad originally acquired only an easement. As to two

parcels, however, defendant contends that the Union Pacific is the fee owner:

parcel 13, the Waters conveyance, and Parcel 18, the Macey conveyance. As

to the third parcel in dispute, defendant argues that the plaintiff invited the

United States’ actions, thus waiving any complaint about it now. Plaintiffs

by preserving the rail corridor for future rail use through imposition of an

interim recreational trail, a practice known as “railbanking.” See 16 U.S.C. §

1247(d) (2012). 

2
disagree as to all three. We address each in turn and then treat the parties’

cross-motions as to the general liability issue. 

I. Defendant’s Motion For Partial Summary Judgment As To The Three

Disputed Parcels

Missouri law permits railroad companies to hold rail corridors in fee. 

Miller v. United States, 67 Fed. Cl. 542, 547 (2005); Hubbert v. United States,

58 Fed. Cl 613, 615 (2003); and Moore v. United States, 58 Fed. Cl. 134

(2003). Plaintiffs are correct, however, that Missouri law favors the

conveyance of easements to railroads. Moore, 58 Fed. Cl. at 136 (citing

Brown v. Weare, 152 S.W.2d 649, 652 (Mo. 1941)); Chouteau v. Mo. Pacific

R.R. Co., 22 S.W. 458 (1893); Jordan v. Stallings, 911 S.W.2d 653, 658 (Mo.

Ct. App. 1984). Thus, only if the intent is clear will a deed be construed as

conveying a fee to a railroad for operation of a rail line. 

Defendant offers the following printed transcription of the hand-written

deed to Parcel 13, the Waters conveyance, parts of which were illegible:

This Indenture made on the 12th day of July A.D. One

Thousand, eight hundred and eighty two by and between Patrick

Waters and Catherine Waters of Lafayette County, State of

Missouri, parties of the first part, and the Missouri Pacific

Railway Company Corporation organized under the laws of the

State of [illegible], party of the second part. Witnesseth the said

parties of the first part, in consideration of the sum of One

Hundred dollars, the receipt whereof is hereby acknowledged

and the building, maintenance, and operation of a railroad by the

said party of the second part its successors and assigns upon the

strip of land hereinafter described, do by these presents grant,

bargain, and sell, convey and confirm unto the said party of the

second part, its successors and assigns, all that piece and parcel

of land being a strip of land One hundred and twenty five feet in

width situated, being and lying in [... illegible...] State of

Missouri in section No. Township No. 51, Range No. 27: Lot

16, Block 2 and Lot 6, Block 3, all in [Illegible] addition to the

City of Lexingt[on], Mo. according to the survey and profile

map made by the Engineers of said Railway Company for a

Railway over and across said tracts of land filed with the Clerk

of 54-433 the County Court of said County and in his office

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being for a sidetrack and switch of said RailwayCompany. The

coal under said land is expressly reserved from the operation of

this deed[;] the right is also reserved to remove the fence and the

[... illegible...] the same are to be removed so as not to interfere

with or delay said Company in constructing their railroad over

said lots. And the parties of the first part agree further that the

RailwayCompany aforesaid, through its agents, employees and

servants, may be allowed to encroach upon the adjoining Lands

outside of the limit above mentioned as to which the parties of

the first part [has] title for the purposes of constructing or

trimming its cuts or fills or for any purposes of drainage or

change of channel, so long as the Railway Company aforesaid

may wish to maintain and operate the said Railroad, it being

expresslyunderstood and agreed, however, that the title acquired

by the said party of the second part shall be confined to the strip

of land first above mentioned. To have and to hold the premises

aforesaid with all and singular the rights, privileges,

appurtenances and immunities thereto belonging or in anywise

appertaining unto the said party of the second part, and its

successors and assigns forever. 

We read this language as creating three new estates in land. 

The first, relating to the parcel in dispute, we hold to be a fee

conveyance. Although the word “fee” does not appear, the granting language

contains no limitation of rights in the transfer. Instead, “all that parcel” is

bargained, sold and conveyed, subject only to retention of a mineral estate (the

coal rights), the second estate created, which, as defendant correctlypoints out,

is not inconsistent with the conveyance of a fee interest. Further, the reference

to “the survey and profile map made by the Engineers of said Railway

Company for a Railway over and across said tracts of land filed with the Clerk

of 54-433 the County Court of said County and in his office being for a

sidetrack and switch of said Railway Company,” we do not construe

grammatically to be a limitation of the purpose of the grant. It is part of the

identification of the property. 

The consideration of $100 is also not de minimis. Indeed, as part of the

consideration, the grantee promises to construct a railroad. This additional

language, rather than suggesting an easement, is clearly intended as an element

of compensation. Finally, the habendum clause is consistent with the

4
conveyance of a fee: “To have and to hold the premises aforesaid with all

singular rights the rights privileges, appurtenances and immunities thereto

belonging or in anywise appertaining unto the said party of the second part,

and its successors and assigns forever.” All rights in the land, as a surface

estate, are being conveyed, in other words, as a fee. 

The third estate granted, which relates to “adjoining Lands,” appears to

be for the limited purpose of allowing the railroad maintenance access in

support of the primary grant: 

the Railway Company aforesaid, through its agents, employees

and servants, may be allowed to encroach upon the adjoining

Lands outside of the limit above mentioned as to which the

parties of the first part [has] title for the purposes of constructing

or trimming its cuts or fills or for any purposes of drainage or

change of channel, so long as the Railway Company aforesaid

may wish to maintain and operate the said Railroad, it being

expresslyunderstood and agreed, however, that the title acquired

by the said party of the second part shall be confined to the strip

of land first above mentioned. 

This grant, which is limited both in time and purpose, is a grant of an easement

for a particular use. It does not, however, suggest a more limited purpose for

the identified parcel underlying the railroad track itself. The grants are

independent. The first is a fee with a retained mineral estate; the other is an

easement.

 

Parcel 18, the Macey conveyance, is controlled by a quitclaim deed

which, according to the government’s transcription, recites the following: 

This Indenture, Made on the day of October A.D. One Thousand

Eight Hundred and Eighty-Two by and between Henry Macey

and Maria Macey of the County of Jackson and State of

Missouri, parties of the First Part, and The Missouri Pacific

RailwayCompany of the County of and State of Missouri, party

of the Second Part, WITNESSETH: that the said part____ of the

First Part, in consideration of the sum of Twenty Dollars

[$20.00], to them paid by the said party of the Second Part, the

receipt of which is hereby acknowledged, do by these presents

Remise, Release and forever Quit-Claim, unto the said party of

5
the Second Part, the following described lots, tracts or parcels

of Land, lying, being and situate in the County of Lafayette and

State of Missouri, to wit: The right of way for the track and road

of said Company one hundred and twenty five feet [125’] in

width over and across lots eight (8) and nine (9) in Block Five

(5) in Buckingham’s addition to the City of Lexington[,] said

right of way to be as shown by the profile and map of right of

way for additional side tracks of said rail road filed in the office

of the County Clerk of Lafayette County Missouri on the 14th

day of August 1882. 

A quitclaim deed typically transfers all of the grantor’s interest in a

piece of land, Jamieson v. Jamieson, 912 S.W.2d 602, 605 (Mo. Ct. App.

1995) (“A quit-claim deed passes the whole of grantor’s interest in the

property.”), although it does so without warranting title. Plaintiffs are thus left

to argue that they have a fee interest in a parcel of land in which their

predecessors-in-title quitclaimed away all of their estate. The contradiction in

that argument is readily apparent. 

We recognized, however, that the use of the following phrase in the

granting clause adds a bit of confusion: 

The right of way for the track and road of said Company one

hundred and twenty five feet [125’] in width over and across lots

eight (8) and nine (9) in Block Five (5) in Buckingham’s

addition to the City of Lexington[,] said right of way to be as

shown by the profile and map of right of way for additional side

tracks of said rail road filed in the office of the County Clerk of

Lafayette County Missouri on the 14th day of August 1882. 

Defendant argues that the phrase is purely descriptive of the four

corners of the land being conveyed. Grammatically we believe defendant is

correct. The right of way language is preceded by the phrase “forever

Quitclaim. . . the following described lots, tracts or parcels of Land, . . . to wit:

. . .” The court has held that terms such as “‘right of way’ may be entirely

descriptive in nature, rather than an express limitation on the quantum of

interest.” Hubbert, 58 Fed. Cl at 615-616 . 

The habbendum clause, while less critical than the granting clause, is

also persuasive that the release is of a fee:

6
TO HAVE AND TO HOLD the same, with all the rights,

immunities, privileges and appurtenances thereto belonging,

unto the said party of the Second Part, and its successors and

assigns, forever; so that neither the said parties of the First Part,

nor their heirs, nor any person or persons for them or in their

name or behalf, shall or will hereafter claim or demand any right

or title to the aforesaid premises, or any part thereof, but they

and every of them shall by these presents be excluded and

forever barred.

The language affirms the notion of a quitclaim conveyance. The grantors

disclaim any further interest in the parcel, which is contrary to the inherently

limited grant of an easement. We are persuaded that this deed conveyed fee

title to the land underlying the railway. 

Plaintiffs also argue more generally that these two conveyances need

be read in light of the broader circumstances surrounding this rail corridor. 

They point out that the original conveyances to Parcels Nos. 13 and 18

constitute only a fraction of the land abutting and underlying the abandoned

railroad corridor owned byWilliam Banks and that the government agrees that

at least seven of those original conveyances relating to Bank’s property

granted easements. They thus urge the court not to treat these two small

parcels as distinct.

That may be the case, but each deed must be viewed separately. These

are legally operative documents in and of themselves. We cannot reform these

two deeds to conform them with the others. 

The third parcel of land the government contests is owned by the

Lexington Special Road District. Defendant contends that the Road District

is barred from recovery because it is a creature of the State of Missouri, and

the state consented to the harm that Road District alleges. Both the City of

Lexington and the Road District are political subdivisions of Missouri. The

Road District is a municipal corporation; the City of Lexington is a

municipality, but both derive their powers from Missouri statutes, and the

powers of either or both can be expanded, contracted, or amended through the

action of the Missouri legislature. According to the government, this plaintiff,

properly viewed as the state, has invited the invasion through the actions of

one of its other subdivisions. See Pennsylvania v. New Jersey, 426 U.S. 660,

664 (1976) (“[N]o State can be heard to complain about damage inflicted by

7
its own hand.”). Plaintiff responds that these two entities are separately

chartered under Missouri law and should be viewed as distinct political

entities, each with capacity to complain of the other’s actions. 

This same issue was addressed recently on similar facts in Balagna v.

United States, 135 Fed. Cl. 16 (2017). The court there held that because one

municipal corporation, the Canton Park District (“CPD”), had sought the

NITU at issue, two other landowners which were also municipal corporations

could not pursue their claims: 

CPD acted within its statutory authority under Illinois law when

it filed the request for public use with the STB. In the Court’s

view, when CPD filed the public use request with the STB on

the state's behalf, the state effectively consented to the federal

government holding the City's and Village's properties for use

as a trail. Accordingly, no compensable taking occurred.

Balagna, 135 Fed. Cl. at 27. 

We believe the same reasoning applies here. The “state” here is acting

through both the road district and the city. Their conduct thus merges in the

State of Missouri. The Road District is barred by the consent of the state,

acting through the city, in seeking the federal government’s issuance of the

NITU.

II. Plaintiffs’ Motion For Partial Summary Judgment And Defendant’s

Request For A Stay Or Discovery

We turn now to the remaining more general liability issue raised by

plaintiffs’ motion for summary judgment, which is the mirror image of

defendant’s motion for a stay. Plaintiffs argue that, under the law of this

circuit, liability is established; the incontrovertible act of taking occurred upon

issuance of the NITU. Plaintiffs cite Ladd v. United States, 630 F.3d 1015,

1019, 1023 (Fed. Cir. 2010), reh’g and reh’g en banc denied, 646 F.3d 910

(Fed. Cir. 2011), and Caldwell v. United States, 391 F.3d 1226 (Fed. Cir.

2004), for the proposition that a taking occurs immediately upon issuance of

a NITU. The fact that a trail easement has not been imposed nor a trail

constructed, as is the case here, is not relevant to the issue of liability,

according to plaintiffs; consideration of whether a trail is in place merely goes

to damages. 

8
That assertion is certainly consistent with the two cited Federal Circuit

opinions. Caldwell’s announcement, at the government’s urging, of a bright

line rule for commencement of the limitations period, had a dramatic impact

on pending rails to trails cases, which had been analyzed under the assumption

that a taking did not commence until signing of the trail use agreement. Some

cases pending at the time were therefore dismissed as untimely.

Despite its impact on pending cases, thereafter Caldwell could be

applied coherently in those instances in which a trail user was in place. What

that case did not address directlywas what would occur if a trail use agreement

did not emerge before or during the pendency of litigation. Litigation had to

commence, due to Caldwell, but the government took the position that the

mere issuance of a NITU is not a per se taking. 

Ladd dealt with the situation in which a trail use agreement was never

consummated. Relying on Caldwell, the Federal Circuit held that 

we reject the government’s present suggestion that the NITU is

nothing more than a temporary regulatory hold on the railroad’s

authority to abandon its railway. In Caldwell, we rejected the

notion that two takings might occur in a Rails-to-Trails case–a

regulatory taking followed by a physical taking. . . . “the accrual

date of a single taking remains fixed.” We further explained: 

“The NITU marks the ‘finite start’ to either temporary or

permanent takings claims by halting abandonment and the

vesting of state law reversionary interests when issued.” 

630 F.3d 1015 (citing Caldwell, 391 F.3d at 1235). The court made it plain

that the taking was a physical, not a regulatory one, and that the duration of the

taking went to damages and not to liability. Id.

Relying on this controlling precedent, plaintiffs ask the court to enter

judgment as to liability. They assert that “the notion of ‘permanence’ as the

government uses the term is not a necessary predicate to establish the

landowners’ entitlement to compensation.” Pl.’s Reply Br. 14, ECF No. 31. 

Defendant disagrees, urging the court to delay entry of judgment on

liability because of more recent developments in takings law, relying on

Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012), and

the Federal Circuit’s decision in Caquelin v. United States, 697 Fed. App’x

9
1016 (Fed. Cir. 2017). 

Arkansas Game &Fish was not a rails to trails case. Rather, it involved

a claim of physical taking due to flooding. At the Court of Federal Claims,

Judge Lettow had concluded that the United States was liable for a temporary

physical taking and ordered compensation. 87 Fed. Cl. 594 (2009). On

appeal, the Federal Circuit reversed. 637 F.3d 1366, 1374 (Fed. Cir. 2011). 

Because flooding cases have been treated as sui generisin takings analysis due

to their similarity to tort actions, the court held that, in order to be

compensable, flowage easements uniquely had to be permanent or inevitably

recurring.2 Because there had not been a finding of permanence or inevitable

recurrence, there was no taking. See id. at 1379. 

The Supreme Court reversed. It began by recognizing the background

principle in takings law that “[o]rdinarily . . . if government action would

qualifyas a taking when permanentlycontinued, temporaryactions ofthe same

character may also qualify as a taking.” 568 U.S. at 26. The case before it,

however, was unique. The question was “the appropriate classification of

temporary flooding.” Id. The Court went on to make the limited ruling that

such cases are not immune from a takings analysis and remanded. In doing so,

however, it recognized a more general distinction in takings cases between

permanent and temporary physical takings:

When regulation or temporary physical invasion by government

interferes with private property, our decisions recognize, time is

indeed a factor in determining the existence vel non of a

compensable taking. Also relevant to the takings inquiry is the

degree to which the invasion is intended or is the foreseeable

result of authorized government action. So, too, are the

character of the land at issue and the owner's “reasonable

investment-backed expectations” regarding the land's use. . . . . 

Severity of the interference figures in the calculus as well. 

2

“[C]ases involving flooding and flow-age easements are different. Both

Supreme Court precedent and our own precedent dictate that we must

distinguish between a tort and a taking.” Arkansas Game & Fish, 637 F.3d at

1374.

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The Court of Federal Claims found that the flooding the

Commission assails was foreseeable. . . . Further, the court

determined that the interference with the Commission's property

was severe: The Commission had been deprived of the

customary use of the Management Area as a forest and wildlife

preserve, as the bottomland hardwood forest turned, over time,

into a “headwater swamp.” 

568 U.S. at 38–40 (internal citations and footnotes omitted). 

As can be seen from this excerpt, the Court viewed temporary physical

takings as similar to regulatory takings in that both involve a balancing of

various factors to determine “the existence vel non of a taking.” These factors

include time, foreseeability, severity, the character of the land at issue and the

owner’s reasonable expectations. 

Subsequent to Arkansas Game & Fish, the Federal Circuit was

confronted with an appeal from this court’s decision in Caquelin v. United

States, 121 Fed. Cl. 658, 667 (2015), in which Judge Lettow was faced with

a situation in which the NITU had never been consummated and indeed had

terminated. Nevertheless, relying on Ladd, he found that a temporary taking

had occurred and ordered compensation. On appeal, that decision was vacated

and remanded. 697 F. App’x 1016 (Fed. Cir. 2017). While recognizing that

the law of the circuit dictated affirmance by the panel, nevertheless, the circuit

court observed that the interposition of Arkansas Game & Fish may have

called Ladd into question. It remanded for the trial court’s application of the

factors suggested in Arkansas Game &Fish for determining when a temporary

physical invasion is compensable under the fifth amendment. Id. at 1019-20. 

The court employed a similar remand in Memmer v. United States, No.

2017-2150, 2017 WL 6345843 (Fed. Cir. Nov. 16, 2017). Those remands are

still pending.

Defendant, in reliance on these remands, urges the court to deny

plaintiffs’ motion for partial summary judgment and either abide the outcome

of Caqueline and Memmer or allow discovery on the factors identified in

Arkansas Game & Fish. We believe neither to be necessary. 

The Supreme has long held that temporary physical invasions are not

necessarily a compensable taking. As the Court taught in Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), 

11
The permanence and absolute exclusivity of a physical

occupation distinguish it fromtemporary limitations on the right

to exclude. Not every physical invasion is a taking. As

PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980);

Kaiser Aetna v. United States, 444 U.S. 164 (1979), and the

intermittent flooding cases reveal, such temporary limitations

are subject to a more complex balancing process to determine

whether they are a taking. The rationale is evident: they do not

absolutely dispossess the owner of his rights to use, and exclude

others from, his property. 

The dissent objects that the distinction between a

permanent physical occupation and a temporary invasion will

not always be clear. This objection is overstated, and in any

event is irrelevant to the critical point that a permanent physical

occupation is unquestionably a taking. In the antitrust area,

similarly, this Court has not declined to apply a per se rule

simply because a court must, at the boundary of the rule, apply

the rule of reason and engage in a more complex balancing

analysis.

Id. at 436 n.12. This is, of course, the same analysis relied on by the Court in

Arkansas Game & Fish. 

We can presume that the court in Ladd was familiar with this limitation

and nevertheless implicitly concluded that, in the rails to trails context, these

factors militated in favor of a compensable temporary taking. “[P]hysical

takings are compensable, even when temporary. . . . The duration of the taking

goes to damages, not to whether a compensable taking has occurred.” Ladd,

630 F.3d at 1025. Even if we ignore Ladd and undertake a multi-factor

analysis, however, the result we find will be the same. 

We reject at the outset defendant’s remarkable proposal that discovery

be allowed into the following myriad questions:

1. The date and circumstances under which plaintiff acquired the

property;

2. Plaintiffs’ intended use of the property at the time of

acquiring the property;

3. Applicable zoning and other rules and restrictions on property

12
use in the area;

4. Plaintiffs’ past and current use of the property;

5. The past and current use of neighboring and nearby

properties;

6. The effect, if any, of the rail corridor on plaintiffs’ use of the

property;

7. The effect, if any, of the NITU and the Trails Act on

plaintiffs’ use of the property;

8. The economic impact, if any, of the Trails Act on the

property;

9. The character of the Plaintiffs’ property;

10. Plaintiffs’ reasonable investment-backed expectations for

their respective properties, if any;

11. The nature and effect of any asserted interference of

Plaintiffs’ use of their property;

12. The value of the property interest allegedly taken;

13. The amount of compensation due in the event that a

temporary taking is established; and

14. The Union Pacific Railroad Company’s current property

interests in the subject railroad corridor.

These fourteen “factors” are either immaterial to liability or can be addressed

without any further discovery. The factors actually enumerated in Caqueline

or Arkansas are the following:

Time: The length of time between the issuance of the NITU and today

is undisputed. The NITU was issued on February 12, 2012, and has been

extended thereafter. Temporary takings less than six years have been held to

be compensable. See Kimball Laundry Co. v. United States, 338 U.S. 1

(1949); Yuba Natural Res., Inc. v. United States, 821 F.2d 638 (Fed. Cir.

1987); Hardy v. United States, 131 Fed. Cl. 534, 540 (2017); James v. United

States, 130 Fed. Cl. 707 (2017); Pettro v. United States, 47 Fed. Cl. 136, 155

(2000).

Causation: There can be no dispute that the NITU occurred and blocked

use of the land. As the Federal Circuit explained in Caldwell, “[T]he issuance

of the NITU is the only government action in the railbanking process that

operates to prevent abandonment of the corridor and to preclude the vesting of

state law reversionary interests in the right-of-way.” 391 F.3d at 1233–34. 

See United States v. Causby, 328 U.S. 256, 266 (1946) (affirming a temporary

13
taking from overflights as “a direct and immediate interference with the

enjoyment and use of the land”). 

Intentionality/Foreseeability: We view it as unnecessary to open

discovery for this factor as well. There was no inadvertence here.

Foreseeability merely inquires into whether the “invasion” is the foreseeable

result of government action. See Arkansas Game & Fish, 568 U.S. at 39. The

compensable “invasion” in a rails to trails case does not necessarily involve

physical presence of federal or third party actors. From the beginning, the

Court has held that “[b]y deeming interim trail use to be like discontinuance

rather than abandonment, Congress prevented propertyinterests fromreverting

under state law.” Preseault v. I.C.C., 494 U.S. 1, 8 (1990) (internal citation

omitted.) The fact that the NITU is not evidenced by “boots on the ground”

is immaterial. The owners of the underlying fee are precluded from using their

own land. That result requires no great foresight to anticipate. 

Severity/Substantiality: It is undisputed that 100% of the landowners’

use of their own land is blocked by operation of law. None of the rails to trails

case precedent with respect to liability has required an additional showing by

landowners of what they would have done with the land if they could access

it. That may well be relevant in a compensation inquiry, but we view it as

immaterial on liability. 

The character of the land at issue: Admittedly there is no stipulation as

to the nature of the land at issue, but we view this issue as immaterial on

liability. Whether plaintiffs’ property was commercial, farm, or undeveloped

land, the United States has no right to simply block control of the surface at no

cost to the government unless plaintiffs can demonstrate its value. This issue,

as well, only has potential relevance for compensation. 

The owner’s reasonable investment-backed expectations: In the context

of a physical invasion, this issue goes to whether the landowners could

legitimately anticipate being free of government interference.3 For example,

if the government is asserting public safety concerns which prompted it to

enter the land, then that fact is relevant in a balancing analysis. In Arkansas,

the Court noted that distinct investment-backed expectations are a matter often

3 We decline to stretch this factor in the context of a rails to trails case to the

more generalized inquiry under regulatory takings cases. 

14
informed by the law in force in the State in which the property is located. 568

U.S. at 38. There can be no need for further consideration here. The only

issue is whether plaintiffs owned a fee estate. If so, then the entire premise

behind Preseault is that they have a right under state law to expect the return

of unfettered access when a railroad easement comes to an end. There is no

assertion that the government was pursuing some public safety concern or was

suppressing a nuisance. 

Plaintiffs have been deprived of the full use of their own property for

over six years. The NITU plainly caused this impact. The nature of the taking

is foreseeable, severe, not mitigated depending on the quality of the land, and

could not be anticipated. This much is undisputed and is sufficient to find a

compensable temporary taking. Consideration of the other factors are not

relevant to liability, although may relate to the amount of compensation. 

CONCLUSION

Summary judgment is granted to defendant with respect to the three

parcels discussed above. Claims as to those parcels are dismissed. 

Defendant’s motion is denied in all other respects. Plaintiffs’ motion for

partial summary judgment is granted as to liability for a temporary taking with

respect to remaining plaintiffs.4 The parties are directed to communicate and

propose further proceedings with respect to compensation in a joint status

report on or before Friday, June 8, 2018. 

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge

4 Defendant alludes to the possibility that some of the plaintiffs, and not merely

those who own the three parcels addressed above, may not have owned their

parcels as of the date of the NITU. The discovery request related only to the

multi-factor analysis and presumed no further discovery on title. Defendant

did not seek additional discovery on this issue and has offered nothing other

than speculation. 

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