The Honorable George F. Gunn, United States District Judge

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 Corporation brought a condemnation action

against National Railroad Passenger Corporation, known as Amtrak, to

acquire two parcels of real property adjacent to Union Station in downtown

St. Louis, Missouri. Amtrak previously had acquired the property under its

federal condemnation power for the construction of a rail passenger service

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 general

restructuring of the United States 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 the future for a public use such as an intercity rail

passenger station. Union Center appeals, arguing that the district court

misinterpreted Missouri law and that the planned future use of property for

public use is not a defense 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 implied 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

property in the future for an intercity rail passenger station.

Accordingly, we affirm.

In 1980, under its federal condemnation power, Amtrak acquired three

parcels of property near Union Station in St. Louis for the purpose of

constructing a rail passenger service station for intercity rail passenger

service. At the time Amtrak obtained this property, the federal government

had committed funding for 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 the

property. In the meantime, Amtrak has leased portions of the property to

the post office for parking and temporary storage of mail trucks and

trailers and to St. Louis Station Associates for parking. The property is

also included as one of eight possible sites for a proposed Multi-Modal

Transportation Center that, if built, would include a rail passenger

station. 
-3-

In 1993, Union Center, a redevelopment corporation organized under

Missouri law, Mo. Rev. Stat. §§ 353.010-.190 (1994), filed a condemnation

petition in state court seeking to condemn two parcels of the property

Amtrak had acquired in the 1980 federal condemnation actions. Union Center

has the right of eminent domain under Section 353.130 of the Missouri

Revised Statutes.

Amtrak removed the condemnation action to federal court and moved for

judgment on the pleadings or, in the alternative, summary judgment. Amtrak

argued that Missouri law did not permit condemnation of Amtrak's property,

and also that Union Center lacked standing to collaterally 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 district court did not decide Amtrak's preemption, collateral

estoppel, 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 looked to Missouri law and concluded that Union Center

could not condemn Amtrak's property because Amtrak's property already was

devoted to a public use and Union Center had failed to show that there was

"no possibility in the future for Amtrak to use the property for a public

use such as an intercity rail passenger station." Id. Union Center

appeals.

I.

Amtrak contends that we should affirm the district court's judgment

on the alternative ground that 45 U.S.C. § 545(d) impliedly preempts any

state or local law that permits the condemnation of Amtrak's property

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 financial

resources are available --

. . .

(B) to acquire any right-of-way, land, or other

property (except right-of-way, land, or other

property of a railroad or property of a State or

political subdivision thereof or of any other

governmental agency), which is required [for]

inter-city rail passenger service;

by the exercise of the right of eminent domain, in accordance with

the provisions of this subsection, in the district court of the

United States for the judicial district in which such property is

located . . .; Provided, That such right may only be exercised 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 required

3

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

v. Two Parcels of Land, 822 F.2d 1261, 1264-65 (2d Cir.) (discussing

Amtrak's condemnation authority), cert. denied, 484 U.S. 954 (1987).

The Supreme Court recently outlined the doctrine of implied

preemption:

[A] federal statute implicitly overrides state law either when

the scope of a statute indicates that Congress intended federal

law to occupy a field exclusively, or when state law is in

actual conflict with federal law. We have found implied

conflict pre-emption where it is impossible for a private party

to comply with both state and federal requirements, or where

state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.
-5-

Freightliner Corp. v. Myrick, 115 S. Ct. 1483, 1487 (1995) (internal

citations and quotations omitted).

Amtrak explains that any state or local 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

"required [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). 

Union Center responds that 45 U.S.C. § 545(d) does not impliedly

preempt state or local condemnation laws. Union Center supports its

argument with the Supreme Court's decision in Cipollone v. Liggett Group,

Inc., 505 U.S. 504 (1992), that holds that when a federal statute contains

an express preemption clause, and that clause is a reliable indication of

congressional intent with respect to state authority, a court cannot

consider implied theories of preemption. Because the Rail Passenger

Service Act expressly preempts numerous state and local laws and does not

mention condemnation laws, Union Center argues there is no implied

preemption. See Cipollone, 505 U.S. at 516-17. The Supreme Court recently

rejected Union Center's interpretation of Cipollone, however, reasoning

that, "[a]t best, Cipollone supports an inference that an express

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 could

condemn Amtrak's property thereby frustrating Amtrak's ability to

accomplish its federal mandate of creating a nationwide rail system and

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 of

compensation due landowners following condemnation under 45 U.S.C.

§ 545(d)); National R.R. Passenger Corp. v. Commonwealth 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) from

payment of a special assessment by a state agency), 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 that

Missouri law does not authorize Union Center's proposed condemnation of

Amtrak's property. Union Center contends that, contrary to the

interpretation of the district court, Missouri law does not require as a

condition precedent to taking property previously acquired and held for

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 Amtrak, 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 held 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 Revised

Statutes (now codified at Mo. Rev. Stat. § 523.100 (1994)), which provided:

In case the lands sought to be appropriated are held by any

corporation, the right to appropriate the same by a railroad

. . . shall be limited to such use as shall not materially

interfere with the uses to which, by law, the corporation

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 state to appropriate private property to a public use as "an

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 determine 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

appropriated to one public use cannot be taken under

proceedings in invitum and applied to the same or an

inconsistent use, unless the intention of the legislature that

it should be so taken is manifested in express terms or by

necessary implication.

Id. 

The court decided that the general condemnation power given to the

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 its

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 Hannibal

is misplaced because the Missouri court was considering a specific statute

that required a determination 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 & Topeka

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 public

use to be subsequently condemned for a present public use.
-8-

In Northwestern Coal, a railroad attempted to condemn land for

railroad tracks. Id. at 685. The coal company which owned the land

protested the condemnation, arguing that the location of the proposed

tracks would materially interfere with its operations and construction of

a new mine. Id. at 692-93. The court rejected the coal company's

arguments stating that it "must deal . . . with the conditions that exist

at the time the condemnation is asked, and cannot take into account

conditions that may or may not arise or be created thereafter." Id. at

693. The court did not, however, hold that future plans for public

property are of no consequence. Indeed, the court specifically considered

the coal company's future plans, but concluded that the location and

operation of the railroad 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 devoted to a public use cannot be taken for

another public use which will totally destroy or materially

impair or interfere with the former use, unless the intention

of the legislature that it should be so taken has been

manifested in express terms or by necessary implication, mere

general authority to exercise the power of eminent domain being

in each case insufficient; . . .

Missouri Cities Water Co. v. Hodge, 878 S.W.2d 819, 821 (Mo. 1994)

(internal citations omitted). After analyzing several condemnation cases,

the court summarized the law in Missouri when a condemnor attempts to

condemn property already devoted to a public use for another public use:

The consistent 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 corporation may exercise the

power of eminent domain in the manner provided for

corporations in chapter 523, RSMo; or it may exercise the

power of eminent domain in the manner provided by any

other applicable statutory provision for the exercise of

the power of eminent domain. Property already devoted to

a public use may be acquired in like manner, provided

that no real property belonging to any city, county, or

the state, or any political subdivision thereof may be

acquired without its consent.

-9-

will be allowed under a general form of authority, both uses

being "necessary" and not necessarily inconsistent or

destructive. However, before allowing a municipality or a

public service entity to take other public property that would

destroy the previous "necessary" use, specific legislative

delegation is required. The rationale being that the

legislature, not the subsequent condemning authority, is the

proper entity to decide between mutually conflicting or

destructive uses of public property. 

Id. at 822. Accord City of Kirkwood v. Union Elec. Co., 896 S.W.2d 946

(Mo. Ct. App. 1995) (statutory authority permitting condemnor to acquire

by eminent domain real estate and personal property for the purpose of

constructing, maintaining, and operating electric light plants, did not

"specifically and 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 specific

authority for the condemnation. First, Union Center argues that

Section 353.130.3 of the Missouri Revised Statutes specifically authorizes

an urban redevelopment corporation to take "[p]roperty already devoted to

public use." Section 353.130.3, however, provides only generalized

4

authority for the condemnation of public property, and does not

specifically authorize Union Center to condemn the property of Amtrak.

Next, Union Center asserts that the ordinances adopted by the City of St.

Louis
-10-

provide express legislative authority to Union Center for condemning

property. Union Center, however, must have such authority from a Missouri

statute. See Missouri 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 Center also argues that the court misapplied Missouri law to

the circumstances of this case by concluding that Amtrak's long-term plan

to build a rail passenger station constituted a public use, and that

Amtrak's commercial rental of portions of the property qualified as an

interim public use. Union Center points out that there is no approved plan

to build a rail passenger station on the property, the plan having been

cancelled, and that Amtrak itself characterizes the property as "excess

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 for Amtrak, testified in his deposition that there are

ongoing plans to design a passenger station on the 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 has

proposed a Multi-Modal Transportation Center for the area that would

include a rail passenger station for Amtrak, and the city currently is

considering the property for the proposed center. In light of this

evidence, the district 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 the

district court erred in concluding that the current use of the land

constitutes an interim public use. Amtrak now leases one of the two

parcels of property to the United States Post Office for
-11-

parking and storage, and the other to an affiliate of Union Center for

parking. Leasing the property for parking with the long-term intent to

develop the property as a rail station constitutes a public use. See The

Curators 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.