### The Honorable George F. Gunn, United States District Judg e 1 

### for the Eastern District of Missouri. ___________ No. 95-3412

___________ Union Center Redevelopment * Corporation, a Missouri * redevelopment corporation, * * Plaintiff - Appellant,* * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * National Railroad Passenger * Corporation, a District of * Columbia corporation, * * Defendant - Appellee. *

___________ Submitted: April 11, 1996 Filed: January 2, 1997

___________ Before MCMILLIAN, JOHN R. GIBSON, and FAGG, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.
Union Center Redevelopment Corporati on brought a condemnation action ag ainst National Railroad Passenger Corporation, known as Amtrak, t o acquire two parcels of real property adjacent to Union Station in downtown St. Louis, Missouri. Amtrak previously had acquired the property under it s federal condemnation power for the construction of a rail passenger servic e station. The district court granted summary judgment to Amtrak , 1 concluding that Union

### The Rail Passenger Service Act of 1970 was recodified at 49 2 

### U.S.C. § 24101 et seq. , and reenacted as part of a genera l restructuring of the United St ates Code, which took effect on July 5, 1994. Pub. L. No. 103-272, 108 Stat. 899 (1994). The parties agree that the former Title 45 controls this action because it was commenced before July 5, 1994.
-2- Center had failed to show that there was no possibility that Amtrak would use the property in t he future for a public use such as an intercity rail passenger station. U nion Center appeals, arguing that the district court misinterpreted Missouri law and that the planned future use of property fo r public use is not a d efense to condemnation for a present public use. We conclude that Union Center cannot maintain a condemnation action against Amtrak because 45 U.S.C. § 545(d) (1994) constitutes an implie d preemption 2 of Missouri condemnation law. We also conclude that Union Center cannot prevail under Missouri law, as Union Center failed to establish that its proposed use will not materially interfere with Amtrak's plan to use the proper tyin the future for an intercity rail passenger station

. Accordingly, we affirm.

In 1980, under its federal condemnat ion power, Amtrak acquired three parcels of property near Union Station in St. Louis for the purpose o f constructing a rail passenger service station fo r intercity rail passenger service. At the time Amtrak obtained this property, the federal governmen t had committed fundingfor the construction of a rail passenger station in St. Louis, but later withdrew the funding. Since acquiring the property, Amtrak has continued unsuccessfully to seek funds to build a station on th e property. In the mea ntime, Amtrak has leased portions of the property to the post office for parking and temporary storage of mail trucks an d trailers and to St. Louis Station Associates for parking. The property is also included as one of eight possible sites for a proposed Multi-Moda l Transp ortation Center that, if built, would include a rail passenge r station.

### -3- In 1993, Union Center, a redevelopment corporation organized unde r Missouri law, Mo. Rev . Stat. §§ 353.010-.190 (1994), filed a condemnation petit ion in state court seeking to condemn two parcels of the propert y Amtrak had acquired in the 1980 federal condemnation actions. Union Cente r has the ri ght of eminent domain under Section 353.130 of the Missour i Revised Statutes.

Amtrak removed the condemnation action to federal court and mov ed for judgment on the pleadings or, in the alternative, summary judgment. Amtra k argued that Missouri law did not permit condemna tion of Amtrak's property, and also that Union Center lacked standing to co llaterally attack the 1980 condemnation actions and was barred by the doctrines of res judicata and collateral estoppel. Amtrak also argued that 45 U.S.C. § 545(d) preempts state laws that conflict with Amtrak's federal right of condemnation.

The d istrict court did not decide Amtrak's preemption, collatera l esto ppel, or res judicata arguments. See Union Ctr. Redev. Corp. v

. National R .R. Passenger Corp. , 874 F. Supp. 968, 970 (E.D. Mo. 1995)

. Instead, the court lo oked to Missouri law and concluded that Union Center could not condemn Amt rak's property because Amtrak's property already was devoted to a public use and Union Center had fai led to show that there was "no possibility in th e future for Amtrak to use the property for a public
use su ch as an intercity rail passenger station." Id. Union Cente r appeals.

I.

Amtrak co ntends that we should affirm the district court's judgment
on the alternative ground that 45 U.S.C. § 545(d) impliedly preempts any state o r local law that permits the condemnation of Amtrak's propert y without its consent. Section

### 45 U.S.C. § 545 provides, in part: 3 

### (d) Acquisition of property; declaration of taking ; property compensation; procedures; transfer of title (1) [Amtrak] is authorized, to the extent financia l resources are available --

. . . (B) to acquire any right-of-way, land, or othe r property(except right-of-way, land, or othe r proper tyof a railroad or property of a State o r political subdivision thereof or of any othe r governmental agency), which is required [for ] inter-city rail passenger service; by the exercise of the right o f eminent domain, in accordance with the provisions of this subsection, in the district court of th e United States for the judicial district in which such property is located . . .; Provided , That such right may only be exercis ed when [Amtrak] cannot acquire such property by contract or is unable to agree with the owner as to the amount of compensation to be paid.

-4- 545(d) grants Amtrak the right to condemn any property that is require d

3 for intercity rail passenger service. See National R.R. Passenger Corp.

v. T wo Parcels of Land , 822 F.2d 1261, 1264-65 (2d Cir.) (discussin g Amtrak's condemnation authority), cert. denied , 484 U.S. 954 (1987).

The Sup reme Court recently outlined the doctrine of implie d preemption:
[A] federal statute impl icitly overrides state law either when the scope of a statute indicates that Congress inte nded federal law to occupy a field exclusively, or when state law is i n act ual conflict with federal law. We have found implie d conflict pre-emption where it is impossible for a p rivate party to comply with both state and federal requirements, or wher e sta te law stands as an obstacle to the accomplishment an d execution of the full purposes and objectives of Congress.

### -5-

Frei ghtliner Corp. v. Myrick , 115 S. Ct. 1483, 1487 (1995) (interna l citations and quotations omitted).
Amtrak explains that any state or lo cal law that would allow for the condemnation of its property would directly conflict with Amtrak' s independent determination under 45 U.S.C. § 545(d) that such property is "requi red [for] inter-city rail passenger service." See National R.R

. Passenger Corp. v. Boston and Maine Corp. , 503 U.S. 407, 417-422 (1992 ) (considering another condemnation provision in the Rail Passenger Service Act).

Un ion Center responds that 45 U.S.C. § 545(d) does not impliedl y pree mpt state or local condemnation laws. Union Center supports it s argument with the Sup reme Court's decision in Cipollone v. Liggett Group, Inc. , 505 U.S. 504 (1992), that holds that when a federal statute contains an express preemptionclause, and that clause is a reliable indication of congre ssional intent with respect to state authority, a court canno t consid er implied theories of preemption. Because the Rail Passenge r Service Act expressly preempts numerous state and local laws and does not mentio n condemnation laws, Union Center argues there is no implie d preemption. See Cipollone , 505 U.S. at 516-17. The Supreme Court recentl y rejec ted Union Center's interpretation of Cipollone , however, reasonin g that, "[a]t best, Cipollone supports an inference that an expres s preemption clause forecloses implied preemption; it does not establish a rule." Freightliner Corp. , 115 S. Ct. at 1488.

Under Union Center's construction of state law, Union Center coul d condem n Amtrak's property thereby frustrating Amtrak's ability t o
acc omplish its federal mandate of creating a nationwide rail system an d overriding Amtrak's decision that property is "required [for] inter-city rail passenger service." See 45 U.S.C. § 545(d)

. See also Two Parcels of Land , 822 F.2d at 1266-67 (holding that Amtrak's condemnation rights would be "actually

### -6-

frustrate[d]" if state law were applied to determine the measure o f compensation due landowners following condemnation under 45 U.S.C

. § 545(d)); National R.R. Passenger Corp. v. Comm onwealth of Pa. Pub. Util. Comm'n , 848 F.2d 436, 437-40 (3d Cir.) (holding, under the principles of federal supremacy, that Amtrak was exempt under 45 U.S.C. § 546(b) fro m payment of a special assessment by a state agenc y), cert. denied , 488 U.S. 893 (1988). Accordingly, we are persuaded that 45 U.S.C. § 545(d ) impliedly preempts Missouri law. II.

Even if Missouri condemnation law applied, we are convinced tha t Missou ri law does not authorize Union Center's proposed condemnation o f Amtrak 's property. Union Center contends that, contrary to th e interpretation of the district court, Missouri law does not require as a condit ion precedent to taking property previously acquired and held fo r public use, that the condemnor negate the possibility that the owner may use the property in the future for a public use.
In granting summary judgment to Amtr ak, the district court relied on St. Louis, Hannibal & Kansas City Railway v. Hannibal Union Depot Co. , 28 S.W. 483 (Mo. 1894). In that case, a railroad sought to condemn, for use as railway track, a part of land acquired and he ld by Hannibal Union Depot that was currently used for a railroad depot. Id. at 484. The railroad condemned the property under Section 2741 of the 1889 Missouri Revise d Statutes (now codified at Mo. Rev. Stat. § 523.100 (1994)), which provided :

In case the lands sought to be appropriated are held by an y cor poration, the right to appropriate the same by a railroa d

. . . shall be limited to such use as shall not materiall y int erfere with the uses to which, by law, the corporatio n holding the same is authorized to put said lands.

### -7- After the trial court allowed the railroad to condemn the property, the depot appealed. The Missouri Supreme Court first described the power of the st ate to appropriate private property to a public use as "a n inherent element of sovereignty. . . appl[ying] to all property, and . . . impliedly reserved in every grant." Id. at 485. The court then explained that the power to det ermine whether the proposed use constitutes a public use rests exclusively with the legislature. Id. The court clarified this power:

It may be conceded, as a general rule of law, that lands once approp riated to one public use cannot be taken unde r pro ceedings in invitum and applied to the same or a n inconsistent use, unless the intention of the legislature that it shou ld be so taken is manifested in express terms or b y necessary implication.
Id.

The cour t decided that the general condemnation power given to th e railroad necessarily implied the power to appropriate a part of the depot' s land unless the condemnation would materially interfere with the uses of the depot. Id. The court allowed the railroad to proceed with it s condemnation because it found that the construction and operation of the railroad would not materially interfere with the land acquired and used by the depot. Id. at 485-86.

Union Center argues that the district court's reliance on Hanniba l is misplaced because the Missouri court was cons idering a specific statute that required a deter mination that the proposed taking did not materially interfere with another public use. Union Center contends that there are
a number of cases decided after Hannibal , most notably, Kansas & Topek a Coal Ry. Co. v. Northwestern Coal & Mining Co. , 61 S.W. 684 (Mo. 1901) (en banc), which permit property acquired and held for a proposed future publi c use to be subsequently condemned for a present public use.

### -8- In Northwestern Coal , a railroad attempted to condemn land fo r railroad t racks. Id. at 685. The coal company which owned the lan d protes ted the condemnation, arguing that the location of the propose d tracks would material ly interfere with its operations and construction of
a new mine. Id. at 692-93. The court rejected the coal company' s arguments stating tha t it "must deal . . . with the conditions that exist at the ti me the condemnation is asked, and cannot take into accoun t conditi ons that may or may not arise or be created thereafter." Id. a t 693. The court did not, however, hold that future plans for publi c property are of no consequence. Indeed, the cou rt specifically considered the coal company's future plans, but concluded that the location an d operation of the rail road would not materially interfere with the present
or future use of the land for mining purposes, noting that the coal company had offered to sell the railroad a right-of-way for three thousand dollars

. Id.
Recently, the Missouri Supreme Court reaffirmed Hannibal Union Depot Co. stating: [P]roperty already devot ed to a public use cannot be taken for another public use which will totally destroy or materiall y impair or interfere with the former use, unless the intention of the legislature that it should be so taken has bee n manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in each case insufficient; . . .

Mis souri Cities Water Co. v. Hodge , 878 S.W.2d 819, 821 (Mo. 1994 ) (internal citations omitted). After analyzing s everal condemnation cases, the court summarized the law in Missouri when a condemnor attempts t o condemn property already devoted to a public use for another public use:

The consiste nt thread of law running through these cases is that if any existing public use will not be harmed by a new and different public use, condemnation

### Mo. Rev. Stat § 353.130.3 provides: 4 

### An urban redevelopment corpora tion may exercise the power of eminent domain in the manner provided fo r corporations in chapter 523, RSMo; or it may exercise th e power of eminent domain in the manner provided by an y other applicable statutory pro vision for the exercise of the power of eminent domain. Property already devoted t o a publ ic use may be acquired in like manner, provide d that no real property belonging to any city, county, or the st ate, or any political subdivision thereof may b e acquired without its consent.
-9- will be allowed under a general form of authority, both use s bei ng "necessary" and not necessarily inconsistent o r dest ructive. However, before allowing a municipality or a public service entity to take other public property that would destroythe previous "necessary" use, specific legislativ e del egation is required. The rationale being that th e le gislature, not the subsequent condemning authority, is th e prop er entity to decide between mutually conflicting o r destructive uses of public property.

Id. a t 822. Accord City of Kirkwood v. Union Elec. Co. , 896 S.W.2d 94 6 (Mo. Ct. App. 1995) (statutory authority permitting condemnor to acquire by em inent domain real estate and personal property for the purpose o f constructing, maintaining, and operating electric light plants, did no t "specificallyand expressly state[] that the eminent domain power may be exercised to acquire an existing `waterworks' or `electrical utility'").

Union Center contends that two sources provide it with specifi c author ityfor the condemnation. First, Union Center argues tha t Section 353.130.3 of the Missouri Revised Statut es specifically authorizes an urban redevelopmen t corporation to take "[p]roperty already devoted to publi c use." Section 353.130.3, however, provides only generalize d 4 author ityfor the condemnation of public property, and does no t specif icallyauthorize Union Center to condemn the property of Amtrak

. Next, Union Center as serts that the ordinances adopted by the City of St. Louis

### -10-

pr ovide express legislative authority to Union Center for condemnin g property. Union Center, however, must have such authority from a Missouri statute. See Missour i Cities Water Co. , 878 S.W.2d at 821, 825; Maryland Heights Fire Protection Dist. v. Campbell , 736 S .W.2d 383, 386 (Mo. 1987).

Union Ce nter also argues that the court misapplied Missouri law t o the circumstances of this case by concluding that Amtrak's long-term plan to b uild a rail passenger station constituted a public use, and tha t Amtrak's commercial rental of portions of the property qualified as a n interim public use. Union Center points out that there is no approved pla n to build a rail passenger station on the property, the plan having bee n cancel led, and that Amtrak itself characterizes the property as "exces s real estate." There is, however, evidence that Amtrak has a long-term plan to build
a station on the property. Edward M. Jenkins, project director for real estate development fo r Amtrak, testified in his deposition that there are ongoing plans to design a passenger station on t he property. Jenkins also clarified that Amtrak referred to the property as "excess real estate " because the property "was not at that time in active railroad use, . . . not that it would never be necessary for railroad use, or that it wasn't intended for railroad use." In addition, the City of St. Louis ha s propos ed a Multi-Modal Transportation Center for the area that woul d inclu de a rail passenger station for Amtrak, and the city currently i s consideri ng the property for the proposed center. In light of thi s evidence, the distric t court did not err in concluding that Amtrak's plan to use the property as a rail station constitutes a public use.

Likewise, we are unpersuaded by Union Center's argument that th e district court erred in concluding that the current use of the lan d consti tutes an interim public use. Amtrak now leases one of the tw o parcels of property to the United States Post Office for

### -11-

parking and storage, and the other to an affiliate of Union Center fo r parking. Leasing the property for parking with the long-term intent t o develop the property as a rail station constitutes a public use. See The Cur ators of Univ. of Missouri v. Brown , 809 S.W.2d 64, 65-67 (Mo. Ct

. App.), cert. denied , 502 U.S. 940 (1991); Arata v. Monsanto Chemical Co. , 351 S.W.2d 717, 721 (Mo. 1961).
We affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.