# In th e United States Court of Federal Cl aims

No. 16-1633L (Filed: May

17, 2018)

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

W I LLIAM O. BANKS, et al.,

Plaintiffs
,

v.

THE UNITED STATES,

Defendant.

* * * * * * * * * * * * * * * * * * * * * * Fif th Am endm ent T akin g ; Rails-To

- Trails; Right-of

Wa y Easem ent; Notice of Interim Trail Use; Consent
to D o Harm ; Fee Estate; State Law Reversionary Interest.

Mark Fernlund H

earne, II
, W ashington, DC, w ith w hom were Lindsay S.C. B rinton
, M

eghan S. Largent
, Stephen S. Davis
, a n d Abram Pafford
, f or Plaintif f s.

Paul George G alindo
, Trial A ttorney , United States Departm ent of Justice, Environm ental & Natural R esources Division, W ashington, DC, with whom was Jeff

r e y H

. W o o d
, A c t i n g Assistant Attorney General, f or Def endant

.

OPI NI ON

Plaintif f s i n this action are Laf

ay ette C ounty , Missouri landowners w ho
assert t h at the United States took without com p ensation interests in their r eal property contrary to the Fif th Am endm ent to the Constitution. P laintif f s allege that thei r p redecessors-in-interest sold r ight-of -way e asem ents along a 2.91-m i le-long strip of land to the W y andotte, Kansas C ity and Northwestern Railroad solely

f or operation of

a railway in or about 1873. They

allege that
t h e U n i t ed States, acting pursuant to t he National Trails S y stem Act 1 (t h e

1 In 1983, C o n g r e s s enacted the National Trails Sy stem Act Am endm ents of 1983, Pub. L

. No. 98-11, 97 Stat. 4 2, to the National T rails Sy s tem Act, P ub. L. No. 90-543, 8 2 S tat. 919 (1968) (codif ied as a m ended at 16 U.S.C. § 1241
et seq.) (2012). T rails Act creates an an a lternative to im m ediate abandonm ent“Trails Act), took a new easem e nt across t heir underly ing f ee interest in those

sam e lands i n February 2012 w h e n the Surf ace Transportation Board ( STB) invoked section 8(d) o f t he National Trails Sy stem A c t and issued a Notice of Interim Trail Use ( “NITU”), postponing plaintif f s’ im m e diate right t o f

ull u se of the surf a ce.
Pending are the parties’ cross-m o tions f or partial sum m ary

judgm ent. Plaintif f s’ m otion seeks a ruling in their f avor o n liability
, a f

ter which the court

s h o u l d p roceed to the valuation phase. Def endant’s cross-m otion asks th e court to deny

plaintif f s’ m otion and def

e r ruling on liability . Def endant also seeks a prelim inary ruling a s to three p articular parcels of l and, a s serting t hat plaintif f s either d o n ot o wn the f ee, or have waived any objection to the conduct of

the United States.

BACKGROUND

The railroad corridor in question stretches f rom m ilepost 246.4 9 n ear My rick, Missouri
, to m ilepost 243.58 in Lexington, Missouri. The U nion Pacif ic R ailroad is the m ost recent s uccessor in interest to the W y a ndotte, Kansas City and Northwestern Railroad. On January 31, 2011, Union Pacif ic petitioned t he STB t o abandon t he line. On February 16, 2 012, t he City of Lexington requested t he STB to invoke section 8 (d) of the T rails Act and issue

a NITU, which it did on Feb r u a r y 2 4
, 2 0 1 2

. In the interim
, a series of

e xtensions have been issued to the original NITU, with the m ost rec e n t expiring on January

24, 2018.

DISCUSSION

There are f

o urteen parcels a t i s s u e, owned by f ive p laintif

f s. The parties h ave agreed o n a num bering sy stem a nd, as to m ost of the p arcels, have also agreed t hat the railroad originally acquired only an e a sem ent. As to t wo parcels, however, def

endant contends that the Union Pacif ic is the f ee owner: parcel 1 3, t he W aters convey ance, and Parcel 18, the Macey convey ance. A s to the t hird parcel in dispute, def endant argues t hat the plaintif f invited the United States’ a ctions, thu s w aiving any com plaint about it now. Plaintif f s

by preserving the rail corridor f or f uture r ail use t h r o u gh im position of an interim recreational trail, a practice k nown as “railbanking.” See 16 U .S.C. § 1247(d) (2012).

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

cross-m otions as to the general liability issue.

I. Def endant’s Motion For Partial Sum m ary J u dgm ent A s To T he Three Disputed Parcels

Missouri law p erm its railroad com panies to hold rail corridor s i n f ee. Miller v. U

nited States
, 67 Fed. Cl. 542, 547 (2005); Hubbert v. U n ited States
, 58 Fed. Cl 613, 6 15 (2003); and Moore v. U nited States
, 58 Fed. Cl. 1 34 (2003). P laintif

f s are c o r r ect, however, that Missouri l aw f avors the

con v e y ance of easem ents to railroads. Moore
, 58 Fed. Cl. at 1 36 (citing Brown v. W

eare , 152 S.W .2d 649, 652 (Mo. 1941)); C h outeau v. Mo. Pacific R.R. C o. , 22 S.W

. 458 (1893); J

ordan v. S tallings
, 911 S.W .2d 653, 658 (Mo. Ct. App. 1984). Thus, only if the intent i s clear will a deed be con s t r u e d as convey ing a f

ee to a railroad f

or operation of a rail line.

Def endant of f ers the f ollowing printed transcriptio n o f t h e h a n d

- w ritten deed to Parcel 13, the W aters convey ance, parts of which were illegible:

This Indenture m ade on the 12th d a y o f July A.D. One Thousand, eight hundred and eighty two by and between Patrick W aters and Catherine W aters of Laf ay ette County
, State of Missouri, parties of t h e f i rst part, and the Missouri Pacif ic Railway Com

pany Corporation organized under the laws of the State of [ illegible], party of the second part. W itnesseth the said parties of t he f

irst part, in considerat i o n o f t he sum of One Hundred dollars, t he receipt whereof is hereby acknowledged and the building, m aintenance, a n d o peration o f a railroad by the said party of the second part i ts successors and assigns u pon the strip of land hereinaf

ter described, do by thes e p resents grant, bargain, and sell, convey and conf irm unto the said party of the second part, its successors and assigns, all that piece a nd parcel of land being a strip of land One h undred and twenty f i ve f eet in width situated, being and ly ing in [

... illegible...] State of Missouri i n section No. Township No. 51, Range No

. 2 7 : L ot 16, Block 2 and Lot 6, Block 3, all in [ Illegible] addition to the City of Lexingt[ on], Mo. according to t he survey a n d prof ile

m a p m a de by the Engineers of said Railway Com p any f or a Railway o ver and across said tracts of land f iled with the Clerk of 54-433 the C ounty C ourt of s aid C ounty a nd in h i s of f ice

3being f or a sidetrack and switch of said Railway Com pany

. The coal under said l and is expressly reserved f rom the operation of this deed[ ;] the r ight is also reserved to rem ove t he f e nce and the [

... i llegible...] t he sam e are to be rem oved so as not to interf ere with or delay said Com

pany i n c o nstructing their r ailroad o ver said lots. A nd the parties of the f irst part agree f

urther that the Railway C om

pany af oresaid, through i ts a gents, em ploy ees and servants, m ay be allowed to encroach upon the adjoining Lands outside o f the lim it above m entioned as to which the parties of the f irst part [ h a s] title f

or t he purposes of constructing or trim m ing it s c u t s or f

ills or f or any purposes of drainage or change o f c h a n nel, so long as t he Railway Com p any a f o resaid

m a y w ish to m a intai n a nd operate the said Railroad, it being

e x p r e s s l y u n d erstood and a greed, however, that t he title a c q u i r e d by t he said party of the second part shall be conf ined to t he strip of land f irst above m entioned. To have and to hold the p rem i ses af oresaid with all and singular t he rights, pr i v i leges, appurtenances and im m

unities thereto belonging or in any wise apperta i n i n g unto the said p arty of the second part, and its successors and assigns f

orever.

W e read this language as creating three new estates in land.

T h e f i r st, relating to the p arcel in dispute, we hold to be a f e e convey ance. A lthough the word “ f ee” does not appear, t he granting language

con t a i n s no lim itation of rights in the transf e r. Instead, “all that parcel” is bargained, sold a nd convey ed, subject o nly to retention of a m ineral estate (the coal r ights), t he s econd estate created, which, as def endant correctly p oints out, is not inconsistent with the convey a n ce of a f ee interest. Further, the ref erence to “the sur v e y a n d prof ile m ap m ade b y t he Engineers o f said Railway Com p any f or a Railway over and a cross said t racts of land f i led with the Clerk of 54-433 the County Court of sai d C o u n ty a nd in his o f f ice being f

or a sidetrack and switch of said Railway Com p any ,” we do not construe g ram m atically to be a lim i tation of the purpose of t he g rant. It i s p a r t o f t h e identif ication of the property

.

The consideration o f $100 is also n ot de minimis

. Indeed, as part of the consideration, the g rante e p r o mises to construct a r ailroad. This additional language, r ather than suggesting an easem ent, is clearly intended as an elem ent of com pensation. Finally
, the habendum c l a use is c onsistent with the

4convey ance o f a f ee: “To have and to hold the pr e mi s e s a f o r e said with all singul a r r ights the rights p rivileges, appurtenances and i m m unities thereto belonging or i n any

wise appertainin g u n t o t he said party of t he second p art, and its successors and assigns f oreve r

. ” A ll rights i n the land, as a surf a ce estate, are being convey ed, in other words, as a f ee.

The third estate granted, which r elates to “adjoining Lands,” a ppears to be f or the lim ite d p u r p o s e of allowing the railroad m aintenance access in support of

the prim ary

grant:

the Railway Com

pany af oresaid, through its agents, e m ploy ees and s er vants, m ay be allowed to encroach upon the adjoining Lands outside of t h e l im it above m entioned as to which the parties of t he f

i rst part [ has] title f

or t he p urposes of constructing

or trim m ing its cuts or f

i lls o r f or any purpos e s o f d rainage or change of c hannel, so l ong as the Railway Com pa n y a f o r esaid

m a y w ish to m a intain and operate t he said Railroad, i t being

e x p r essly understood and agreed, h owever, that th e t i t l e a c q u i r e d by t he said party of the second part shall be conf ined to t he strip of land f irst above m entioned.

This grant, which is lim ited both in tim e and purpose, is a grant of a n easem ent f or a particular u se. It d oes not, however, suggest a m ore l im ited purpose f or the identif

ied parcel underly ing t he railroad t r a c k itself

. The g rants are independent. The f

irst is a f ee wi t h a r e tained m ineral estate; t he other is an

easem ent.

Parcel 18, the Macey convey a nce, is control l e d by a quitclaim deed which, according to the governm ent’s transcription, recites the f ollowing:

This Indenture, M a de on the d ay of October A.D. One Thousand Eight Hundred and Eighty -Two b y and betwe e n Henry Macey and Maria Macey of the County o f J ackson and State of Missouri, parties of the Fi rst Part, and The Missouri Pacif ic Railway C om

pany of the County of and State o f Missouri, p arty of the Second P art, W ITNESSETH: that the said part____ of the First Part, i n consideration of the sum of Twenty Dollars [ $20.00], to them paid by the s aid party of t he Second P art, the receipt of which is hereby acknowledged, do by these presents Rem ise, Release a nd f

orever Quit-Claim
, unto the said party of

5the Second Part, the f ollowing described l ots, t r a c t s or parcels of Land, ly ing, being and situate in the County of Laf a y ette and State of Missouri, to wit: The right of way f o r the track a nd road of said Com

pany one hundr e d a nd twenty f ive f eet [ 125’] in width over and a cross lots eight (8) and nine ( 9) in Block Five (5) in Buckingham ’s addition to the City o f Lexington[
, ] said right o f w a y t o b e a s shown by the p rof ile and m ap o f right of
way f or additional side tracks of s a id rail road f iled in the of

f ice of the County Clerk of Laf ay ette County Missour i o n the 14th day of August 1882.

A quitclaim deed ty

pically tr a n s f

e r s a ll of the g rantor’s i nterest in a piece of land, Jamieson v. Jamieson
, 912 S.W .2d 602, 605 (M o

. Ct. App. 1 9 95) (“A quit-claim deed passes the whole of grantor’s interest in the property .”), a lthough i t does so without warranting title. Plaintif f s are thus l ef

t to argue that they h a v e a f ee interest in a parcel o f land in w hich their predecessors-in-title quitclaim ed away all o f their e state. The contradiction in that argum ent is readily

apparent.

W e recognized, h o w e v e r , t hat the u se o f the f ollowing phrase in the granting clause adds a bit of conf usion:

The right of way f

o r the track and road of said Com pa n y one hundred a nd twenty f

ive f eet [ 125’] in width over and across lots eight (8) a nd nine (9) in Block Five (5) in B uc k i n g h a m ’s

a d d i t i on to t he C ity of Lexington[ ,] said right o f way to be as shown b y the p rof

ile and m ap of right of way f or additional side tracks o f said r ail road f

iled in t he of

f ice of the County Clerk of Laf a y ette County

Missouri on the 14th day of August 1882.

Def endant argues that the phras e i s p u rely descriptive o f t he f o ur

corners of t he land b e i n g c onvey ed. Gram m atically w e believe def endant is
correct. T he right of way la nguage is p receded by the phrase “f orever Quitclaim

. . . the f

ollowing described lots, tracts or parcels of Land,

. . . t o wit:

. . .” The court has held t h a t t e r ms s u ch as “‘right of way ’ m ay be entirely descriptive in n a ture, rather than an express lim itation on the q uantum of interest.” Hubbert
, 58 Fed. Cl at 615-616 .

The habbendum c lause, while l ess critical than t he granting c lause, is also persuasive that the release is of a f ee:

6TO H A V E AND T O HOLD the sam e, with all the rights, im m unities, privileges and appurtenances thereto belonging,
unto the s a id party of the Second Part, and its suc c e s s o r s and assigns, f orever; so that neither the said parties of the F irst Part,

nor their heirs, n o r a n y p erson or persons f o r them or in their

nam e or behalf

, s hall or w ill h ereaf

t er claim or dem and any right

or tit le to t he a f

oresaid prem i ses, or any part thereof
, but they and e v e r y o f them shall by these presents be excluded and f orever barred.

The language af

f irm s the notion of a quitclaim c onvey a nce. The grantors disclaim any f

urther interest in the parcel, which is contrary to the inherently lim ited grant of an easem ent. W e a re persuaded that this deed c o n vey ed f ee title to the land underly ing the railway

.

Plaintif f s a lso argue m ore generally t hat t hese two con v e y a n c e s need be read in light o f the broader circum stances surrounding this r a i l c o r ridor. T h e y p o i nt out that the original convey ances to Parcels Nos. 13 a nd 1 8 constitute only a f

raction of t h e land abutting and u nderly i ng the abandoned railroad corridor owned by W illiam Banks and that the governm ent agrees t hat
at least seven o f t hose original convey ances relating to Ba n k’s property granted e asem ents. They thus u rge the court not to treat t h e s e t w o s m all parcels as distinct.

That m a y be the case, but each deed m ust b e viewed separately

. These

are legally operative docum ents in a n d o f them s elves. W e cannot ref orm these two deeds to conf

orm them with the others.

The third parcel of land the governm ent contests is owned by the Lexington Special Road District. Def e ndant contends that the Road District is barred f

rom recovery because it is a c r eature o f the State o f M i s souri, and the state consented to the h a r m t h a t Road District alleges. Both the City of Lexington and t he R oad District are political subdivisions o f Missouri. The Road District i s a m

unicipal c orporation; the C i t y o f Lexington is a

m unicipality
, but both derive their p o w e r s f r om M issouri statutes, and the
powers of either or both can be expanded, c ontracted, or am ended through the action of the Missouri legislature. According to the governm ent, this plaintif f
, properly viewed as the st a t e , h a s i nvited the invasion through the actions of

one of its other s ubdivisions. See Pennsylvania v. New Jersey
, 426 U.S. 660, 664 (1976) (“[ N]o State can be heard to com plain about dam a g e inf

licted by

7its own h a nd.”). Plaintif f r e s ponds that these two e ntities a re separately chartered u nder M issouri la w and s hould b e viewed as d istinct political entities, each with capacity to com plain of the other’s actions.

This sam e issue was addressed recently on sim ilar f

acts in Balagna v. United States , 135 F ed. Cl. 16 (2017). The court there held that because one

m unicipal corporation, t he C anton P ark District (“CPD”), had sought the NITU at issue, two other landowners which were also m unicipal corporations could not pursue their claim s:

CPD acted within its statutory a uthority under Illinois law when it f i led the request f

or p ublic u se w ith the ST B. In t he Court’s view, when CPD f

i l ed the public u se r equest w ith the S TB on the state' s behalf

, the state ef

f ectively consented to the f ederal
governm e nt holding the C ity ' s and Vil l age' s properties f or u se as a trail. Accordingly , no com pensable taking occurred.

Balagna , 135 Fed. Cl. at 27.

W e believe the sam e reasoning applies here. T he “state” here is acting through b oth t he r oad district and the city

. T heir c onduct thus m erges in the State of Missouri. The Road Distri c t i s b a rred by the consent of the state, acting thro ugh the city
, in seeking the f ederal governm e n t’s issuance of the NITU.

II. P laintif

f s’ Motion For Partial Sum m ary Judgm ent And Def endant’s Request For A Stay

Or Discovery

W e turn now to the rem a ining m ore general liability issue raised by pl a intif f s ’ m otion f

or s um m ary judgm ent, which is the m irror im age of def endant’s m otion f

or a stay

. Plaintif

f s argu e that, under the law of this circuit, liability i s established; the incontrovertible act of taking o ccurred upon i s s u ance of the NITU. P laintif f s cite L add v. United S

tates, 630 F.3d 1015, 1019, 1023 ( Fed. Cir. 2 010), reh’g and reh’g en b anc denied
, 6 4 6 F .3d 9 10 (Fed. Cir. 2011), and Caldwell v. United States
, 3 91 F.3d 1226 (Fed. Cir. 2004), f or the proposition that a taking occurs im m ediately upon issuance of

a NITU. The f

act t h a t a trail easem ent has n ot been i m p osed nor a trail constructed, as is the c ase her e , i s not relevant to t he issue of liability
, according to plaintif

f s; consideration of whether a t rail is in place m erely goes to dam ages.

8That assertion is certainly consistent with the t wo cited F ederal Circuit

opinions. C

aldwell’s announcem ent, at the governm ent’s urging, of a bright line r ule f or com m e ncem e nt of

the lim itations period, had a dram atic im pact

on pending rails to t rails cases, which had been a n aly zed under the assum

ption that a taking did not com m ence until s igning of the trail use agreem e nt. Som e cases pending at the tim e were theref ore dism issed as untim ely

. Despite i ts im

pact on pending c ases, thereaf ter Caldwell could be applied coherently i n those instances in which a trail user w as in place. W hat that case did n o t address directly was what would occur if a trail use agreem ent did not em erge b ef

ore or d uring the pendency

of litigation. Litigation had to

com m ence, due to Caldwell
, but t he governm ent took the posi t i on that the

m ere issuance of

a NITU is not a per se taking.

Ladd dealt with the situation i n which a trail use agreem ent was never

consum m ated. Rely ing on Caldwell , the Federal Circuit held that

we reject the governm ent’s present suggestion that the NITU is nothing m o re than a tem

porary regulatory hold on the railroad’s authority to abandon its railway

. In Caldwell
, we r e j e c t ed the notion that two takings m ight occur in a R ails-to-Trails case–a regulatory taking f

o llowed by a p hy sical taking.

. . . “the a ccrual date of a s ingle taking rem ains f i xed.” W e f

urther explained: “T h e N I T U m arks the ‘f inite start’ to either tem porary or perm a nent t akings claim s by halting abandonm ent and the vesting of state law reversionary

interests when issued.”

630 F.3d 1015 (citing C

aldwell
, 391 F.3d at 1 235). The court m ade it plain that the taking was a p hy sical, not a regulatory one, and that t he duration of the taking went to dam ages and not to liability

. Id.

Rely ing on this controlling p r e c edent, plaintif f s ask the court to enter judgme n t a s to l iability

. They assert that “the notion of ‘ perm anence’ as the
governm e nt uses the term is not a necessary predicate to establish the landowners’ entitlem e nt to com pensa t i on.” Pl.’s R eply Br. 1 4, ECF N o. 31.

Def endant disagrees, urging the c o urt to delay e n t r y of judgm ent on liability because of m ore recent developm ents in t akings law, rely ing on Arkansas Game & Fish Commission v. United S tates , 568 U.S. 23 (2012), and the Federal Circuit’s decision i n Caquelin v. U nited States, 697 Fed. A p p ’x

91016 (Fed. Cir. 2017).

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

a claim of p h y s i c a l taking due to f looding. At t he Court of Federal C laim s, Judge Lettow had concluded that the United S tates was liable f or a tem porary phy s i c a l t a k ing and ordered com pensation. 87 Fed. Cl. 594 ( 2009). On appeal, the Fed e r a l C i r cuit reversed. 637 F.3d 1366, 1374 (Fed. Cir. 2011). Because f l ooding cases have been treated as sui g eneris in takings a naly sis due
to their sim ilarity to tort actions
, t h e c o urt held that, in order to be

com pensable, f

l owage easem ents uniquely had to be perm anent or inevitably recurring. 2 Because there h ad not been a f inding of perm anence or inevitable recurrence, there was no taking. See id . at 1379.

The Suprem e Court reversed. I t began by r ecognizing the background principle in takings l aw that “[ o]rdinarily

. . . i f g o vernm ent action w ould qualif y as a t aking when perm anently continued, tem porary a ctions of t he sam e character m ay also qualif y as a taking.” 568 U.S. at 26. The c a s e b e f o r e it, however, was unique. The question was “the appropriate c l a s s if ication of
tem porary f looding.” Id. The C o urt went on to m a ke the lim ited r uling t hat such cases are not im m

une f rom a takings analy s is and rem anded. In doing so, however, it recognized a m ore general distinction i n takings c ases between
perm anent and tem

p orary phy sical takings:

W hen regulation or tem

porary phy sical invasion by governm ent interf eres with private property , our d ecisions r ecognize, tim e is indeed a f

actor i n determ ining t h e e x istence vel non of a

com pensable taking. Also relevant to the takings inquiry is the degree to which the invasio n i s intended or is the f oreseeable result of autho r i z e d governm ent action. So, t oo, are the character of the land at issue and the owner' s “ r e asonable investm ent-backed e xpectations” regarding the land' s use.

. . . . Severity of

the interf erence f igures in the calculus as well.

2 “ [ C]ases involving f

l ooding and f

low-age easem ents a re dif f erent. Both Suprem e C ourt precedent and our own precedent dictate that we m ust distinguish between a tort and a taking.” A rkansas Game & Fish, 637 F .3d at 1374.

10The Court of Federal Claim s f o und that the f

looding the Com m ission a ssails was f oreseeable.

. . . Further, the court determ ined that the interf

erence with the Com m ission' s property

was severe: The Com m ission had been deprive d of the
custom ary use of t he Managem ent Area as a f orest and wildlif

e preserve, as t he b o ttom land h ardwood f orest turned, over tim e, into a “headwater swam

p.”

568 U.S. at 38–40 (internal citations and f o otnotes om itted).

As can be seen f

rom this excerpt, the Court viewed t em porary phy sical takings as sim ilar t o regulatory takings i n tha t b o t h i nvolve a b alancing of various f actors to determ ine “the existence v el non o f a taking.” These f actors include tim e, f

oreseeability
, severity
, t he character o f the land at issue and the owner’s reasonable expectations.

Subsequent to Arkansas Game & F ish
, the Federal Circ u i t was conf r o n t e d w ith an appeal f

rom this court’s d ecision in C aquelin v. U

nited States
, 121 Fed. Cl. 6 58, 667 (2015), in which J udge Lettow w a s f aced with

a situation in which the NITU had never b een consum m ated an d i n d e e d had
term inated. Nevertheless, rely ing on L a dd
, h e f ound t hat a tem

porary t aking had occurred and ordered com pensation. On appeal, that d ecision was vacated and rem anded. 697 F. App’x 1016 (Fed. Cir. 2017). W h ile r ecognizing t hat the law of the circuit d ictated af f irm ance by the panel, n evertheless, the circuit
court observed t hat the interposition of Arkansas G ame & F i s h may have called L add into question. It rem anded f or the trial court’s application of the f actors suggested in Arkansas Game & Fish f or d eterm ining w hen a tem porary phy sical invasion is com

pensable u nder the f

if th a m endm ent. Id. at 1 019-20. The court em

ploy ed a sim ilar r e ma n d in Memmer v. United States
, No. 2017-2150, 2017 W L 6345843 (Fed. C ir. N ov. 1 6, 2017). Those r em ands are still pending.

Def e n d a nt, in reliance on these rem ands, urges the court to deny plaintif f s’ m o tion f

o r partial sum m ary judgm e n t and either abide the outcom e of Caqueline a nd Memmer or allow discovery o n the f actors iden t i f

ied in Arkansas Game & Fish. W e believe neither to be necessary

.

The Suprem e has long held that tem porary phy sical invasions are not

necessa r i l y a c o m

p e nsable taking. As the Court taught in Loretto v. Teleprompter Manhattan CATV Corp ., 458 U.S. 419 (1982),

11The perm anenc e and absolute exclusivity o f a phy sical occupation distinguish it f rom tem porary lim itations on the right
to exclude. Not e very phy sical invasion is a taking. A s PruneY ard Shopping Center v. Robins
, 447 U .S. 7 4 ( 1 980); K a i ser Aetna v. U

nited States
, 444 U.S. 164 ( 1979), and t h e i n term ittent f

l ooding cases r eveal, such t em porary lim itations

are subject to a m ore com plex balancing process to determ ine whether they

are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and e xclude others f rom , his property

.

The dissent o b

j e cts that t he distinction between a perm a nent phy sica l o c cupation and a tem porary invasion will
not alway s be clear. This obj e c t i o n is overstated, and in any event is irrelevant to the critical point that a perm anent phy sical occupation is unquestionably a taking. I n the antitrust area, sim ilarly
, this Court has not declined to apply a p er se rule sim ply because a court m

ust, at the boundary

of the r ule, a pply the rule of reason and engage in a m ore com ple x b alancing analy sis.

Id. at 436 n .12. This i s, of course, the s am e analy sis r elied on by the Court in Arkansas Game & Fish.

W e can presum e that the court in L add was f am iliar with t his lim itation and nevertheless im

plicitly concluded that, in the r ails t o trails context, these f actors m ilitated in f

avor of a com

p ensable temp o r a r y t aking. “[ P]hy sical takings are com

pensable, even when tem

porary

. . . . The duration o f the t aking goes to dam a ges, not to whether a com pensable taking has occurred.” Ladd
, 630 F.3d at 1025. Even if w e ignore Ladd and undertake a m ulti-f a c t or analy sis, however, the result we f ind will be the sam e.

W e reject a t the outset d ef endant’s rem arkable p roposal that discovery be allowed into the f

o llowing m y

riad questions:

1. T h e d ate and circum stances under which plaintif f a c quired the property ; 2. Plaintif

f s’ in tended use of the property a t the tim e of acquiring the property ; 3. Applicable z oning and other r ules and restrictions on property

12use in the area; 4. Plaintif f s’ past and current use of

the property ; 5. T h e p a s t and current use of neighboring and nearby properties; 6. The ef f ect, i f any , of t he rail corridor on plaintif f s’ use o f the property ; 7. T he ef

f ect, i f a n y , o f the NITU and the T rails Act on plaintif f s’ use of the property ; 8. The e conom ic im

p act, if any , of the Trails Act o n the property ; 9. The character of

the Plaintif

f s’ property ; 10. Plaintif

f s ’ reason a ble investm ent-backed expectations f or their respective properties, if any ; 11. The nature and ef

f ect of a ny a sserted interf erence of Plaintif f s’ use of their property ; 12. The value of

the property

interest allegedly

taken; 13. The a m ount of com pensation du e i n t h e event that a tem porary taking is established; and 14. The Union Pacif

ic Railroad C o m

pany ’s current property interests in the subject railroad corridor.

These f ourteen “f

actors” are either i m m aterial to liability or can be addressed without any f

urther discovery

. The f

actors actually enum erated in C aqueline

or Arkansas are the f

o llowing:

Tim e: T he length of tim e between the issuance of the NITU and t oday is undisputed. The N ITU was is s u e d on February 12, 2012, and has been extended t hereaf

ter. Tem porary takings less than six y ears have been h eld to be com pensab le. See Kimball Laundry Co. v. United States, 3 38 U.S. 1 (1949); Y uba Natural Res., Inc. v. U nited States
, 821 F.2d 6 3 8 (Fed. Cir. 1987); Hardy v. United States
, 131 Fed. Cl. 5 34, 540 (2017); James v. U nited States
, 130 Fed. Cl. 7 07 (2017); Pettro v. United States
, 47 F ed. Cl. 136, 1 55 (2000).

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

use of the l and. As t he Federal Circuit explained in Caldwell
, “[ T]he issuance of the NITU is the only governm ent action in th e r a i l b a nking p rocess t hat operates to prevent a

bandonm ent of the corridor and to preclude the vesting of
state law reversionary interests in the r ight-of -way .” 391 F.3d at 1233–34. See United States v. Causby
, 328 U.S. 256, 266 (1946) (af f irm ing a tem

porary

13taking f rom overf

li g h t s a s “a direct and i m m ediate interf erence w ith the enjoy m ent and use of

the land”).

Int e n t ionality

/Foreseeability : W e view it as unnecessary to open discovery f

or this f actor as well. Th e r e w as no i nadvertence here. Foreseeability

m erely inquires into whether the “invasion” is the f oreseeable result of governm ent action. See Arkansas Game & Fish
, 568 U.S. at 39. The

com pensable “invasion” in a rails t o t rails case does not necessarily involve phy sical presence of f

ederal or third party a c t o r s

. F rom the beginning, the Court has h eld that “[ b]y deem ing interim trail use to be li k e discontinuance rather than abandonm ent, Congress p r e v e n t e d p r o p e r t y i n t e r e s t s f

rom reverting under sta t e law.” Preseault v. I.C.C.
, 494 U.S. 1, 8 (1990) (internal citation

om itted.) The f

act that the NITU is not evidenced by “boots on t h e ground” is im m aterial. The owners of the underly ing f e e are precluded f

rom using their own land. That result requires no great f oresight to anticipate.

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

use of t heir own land is blocked by operation of l aw. N o ne of the rails to trails

case precedent with respect to liability h as required an additional s howing by landowners of

what they

would have done with t he l and if they could access it. That m ay well be relevant in a co mp e n s a t i o n inquiry
, but we view it as im m a terial on liability

.

The c haracter of the land at issue: Adm ittedly there is no stipulation as to the nature of the land a t i ssue, but we view this issue as i m m aterial on liability

. W hether plaintif f s’ property was com m ercial, f arm , or undeveloped land, the United States has no right to sim p ly block control of the surf a c e at no cost t o the governm ent unless plaintif f s can dem o nstrate its value. This issue, as well, only

has potential relevance f or com pensation.

T h e o w n e r ’ s r easonable i nvestm ent-backed expectations: In the c o n t e x t of a phy sical invasion, this issue goes t o whether the landowners could legitim ately anticipate being f ree of governm ent interf

erence. 3 For exam

ple, if the g overnm ent is asserting public s af ety concerns w h i ch prom pted it to enter the land, then that f

act is relevant in a balancing a naly sis. In Arkansas
, the Court noted that distinct investm ent-backed expectations are a m atter o f ten

3 W e decline to stretch this f actor in the context of

a rails to trails case to the

m ore generalized inquiry under regulatory

takings cases.

14inf

orm ed by the law in f

orce in the State in which the property is l ocated. 5 68 U.S. a t 3 8

. T h ere can b e no need f or f urther consideration h ere. The only issue is whether plaintif

f s owned a f

e e es t a t e

. I f so, then the entire prem i se behind Preseault is that t hey have a right under state law t o expect the return of unf ettered access w hen a railroad e a sem e n t c o m e s to a n end. There is no assertion that t he governm ent was p ursuing s om e public s a f ety concern or was suppressing a nuisance.

Plaintif f s have been deprived of the f ull u se of their own property f

or

over six y ears. The N ITU p lainly caused this im pact. T h e n ature o f the t aking is f oreseeable, s evere, not m itigated depending o n the quality of the land, and could not b e anticipated. T his m uch is undispu t e d and is suf f icient to f ind a

c o mpensable tem

p o rary taking. Consideration of t he other f actors are not relevant to liability
, although m ay relate to the am ount of

com pensation.

CONCLUSION

Sum m ary judgm ent is granted t o def endant with respect to the three parcels discussed abo v e

. C l aim s as to those parcels are dism issed. Def endant’s m otion is denied in all other respects. Plaintif f s’ m otion f

or partial sum m ary judgm ent i s granted as to liability f o r a tem porary t aking with respect to rem aining plaintif f s. 4 The p arties are directed to com m unicate and
propose f urther proceedings with respect to com pensat i o n in a j oint status report on or bef

o re Friday , June 8, 2018.

s/Eric G. Bruggink ERIC G. BRUGGINK Senior Judge

4 Def endant alludes to the possibility that som e of the plaintif f s, and not m erely those who own the three parcels addressed above, m ay not have owned their parcels as of the date of the NITU. T he discovery request related only to the

m ulti-f actor analy sis and presum ed no f urther d iscovery on title. Def endant did not seek additional discovery on this issue and h as of f e r ed nothing other than speculation.

15