Nos. 16-865L, 16-893L 

Filed: July 26, 2018

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ANDREW S. LUCIER, et al., 

THOMAS E. BEATTIE, et al., 

Plaintiffs,

v.

UNITED STATES,

 

Defendant.

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Motions for Reconsideration; Rails 

to Trails; Centerline Presumption.

O R D E R

On July 3, 2018, plaintiffs in Andrew S. Lucier, et al. v. United States, No. 16-865L 

(Lucier),1 and Thomas E. Beattie, et al. v. United States, No. 16-893L (Beattie),2

landowners in Thurston County, Washington, who allege that the United States 

government effected takings of their reversionary property interests through the operation 

of the National Trails System Act, 16 U.S.C. § 1241 et eq. (2012) (the Trails Act), both

filed identical motions for reconsideration under Rule 59 (2018) of the Rules of the United 

States Court of Federal Claims (RCFC) of the court’s June 1, 2018 Opinion granting 

defendant’s motions for summary judgment in Lucier and Beattie and denying Lucier

plaintiffs’ and Beattie plaintiffs’ motions for partial summary judgment. See Lucier v. 

United States, No. 16-865L, 2018 WL 2471404, at *39 (Fed. Cl. June 1, 2018).

Subsequent to the court’s June 1, 2018 Opinion, on June 5, 2018, the Clerk’s Office 

entered judgment in favor of defendant in Lucier and Beattie. 

In their motions for reconsideration, Lucier and Beattie plaintiffs argue:

Plaintiffs sought partial summary judgment in their original motion on two 

issues: 1) whether the railroad held an easement in the railroad corridor; 

 

1 The plaintiffs in Lucier are as follows: Andrew S. Lucier, Kris Allen O’Bannon, Jan 

Pettigrew, Scott L. and Susan K. Putzier, Keith D. Quentin, Kenneth T. and Shannon L. 

Kratina, Jon Sandberg, Robert M. and Kathleen L. Shaputis, and Skiview Estates 

Association.

2 The plaintiffs in Beattie are as follows: Thomas E. Beattie, Clinton L. Termini, and 

Stephen Upton.
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and 2) whether nature and hiking trail use exceeded the scope of such an 

easement. Defendant responded and filed a cross-motion on the additional 

issue of whether Plaintiffs possessed a cognizable property interest in the 

railroad right of way, an issue Plaintiffs believed was not suited for resolution 

by summary judgment but rather for trial.[3] The Court ultimately granted 

Defendant’s cross-motion and denied Plaintiffs’ cross-motion for partial 

summary judgment. Plaintiffs request reconsideration of the Court’s June 1 

Opinion and Order relating to the parties’ motions for summary judgment in 

order to correct factual mistakes, correct errors of law, and avoid manifest 

injustice, and because extraordinary circumstances exist in this instance 

because the Court misinterpreted or missed vital evidence and disposed of 

Plaintiffs’ claims, thus depriving them of due process and of their 

Constitutional right to be free of government intrusion on their private 

property or to be compensated for the intrusion.

Lucier and Beattie plaintiffs “do not ask the Court to reconsider whether judgment should 

be entered in favor of Plaintiffs on the ownership issue. Rather, Plaintiffs request the Court 

reverse its decision that Defendant is entitled to summary judgment on its cross-motion.”

In its June 1, 2018 Opinion, the court analyzed the property interests of the twelve

Lucier and Beattie plaintiffs, nine of which own land corresponding with tracts of land 

depicted on the plat map of Large Lot Subdivision 0146 (LLS-0146). The nine plaintiffs 

owning land corresponding with a tract of land depicted on the plat map of LLS-0146 are 

Lucier plaintiffs Andrew S. Lucier, Kris Allen O’Bannon, Kenneth T. and Shannon L. 

Kratina, Jon Sandberg, Scott and Susan Putzier, and Robert M. and Kathleen L. Shaputis 

and Beattie plaintiffs Thomas E. Beattie, Clinton L. Termini, and Stephen Upton. Id. at 

*31. The remaining three plaintiffs, Lucier plaintiffs Jan Pettigrew, Keith D. Quentin, and 

Skiview Estates Association, own property that does not correspond with a tract of land 

in LLS-0146. Id. at *35. The plat maps of the properties owned by Lucier plaintiffs Jan 

Pettigrew, Keith D. Quentin, and Skiview Estates Association, however, all contain 

language “excepting” the railroad corridor from the three plaintiffs’ plat maps. Id.

Regarding the issue of the Lucier and Beattie plaintiffs’ interest in the land 

underlying the railroad corridor, the court determined that, under Washington State law, 

the express metes and bounds and illustrations in the plat maps of the properties owned 

by the Lucier and Beattie plaintiffs rebutted the centerline presumption for all plaintiffs. Id.

at *30-31. The court then determined that Lucier plaintiffs Andrew S. Lucier, Kris Allen 

O’Bannon, Kenneth T. and Shannon L. Kratina, Jon Sandberg, Scott and Susan Putzier, 

and Robert M. and Kathleen L. Shaputis and Beattie plaintiffs Thomas E. Beattie, Clinton 

L. Termini, and Stephen Upton, all of whom own property corresponding with tracts of 

land depicted on the plat map of LLS-0146, did not own the land underlying the railroad 

 

3 On December 6, 2017, Lucier and Beattie plaintiffs both cross-moved for partial 

summary judgment on the issue of Lucier plaintiffs’ and Beattie plaintiffs’ interest in the 

land underlying the railroad corridor, asserting that the all of the Lucier and Beattie

plaintiffs owned the land underlying the railroad corridor in fee simple.
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corridor, and the court granted defendant’s motions for summary judgment against those 

nine plaintiffs. Id. at 35. The court explained: 

The plat map of LLS–0146, which consists of three sheets, on each of which 

is the phrase “BLACK LAKE ESTATES,” was created in 1982 at the request 

of “TERRY ASBJORNSEN on FOR B.L. ESTATES, G.P.” (capitalization in 

original). As discussed above, Black Lake Estates, G.P. subsequently 

conveyed title to land located in LLS–0146 to plaintiffs’ predecessors-intitle. The legal description on the first sheet of the plat map of LLS–0146 

states that that LLS–1046 extends “ALONG THE EAST LINE OF SAID 

SECTION 7. 1295.80 FEET, TO THE NORTHERLY LINE OF THE 

BURLINGTON NORTHERN R.R. RIGHT OF WAY: THENCE . . . ALONG 

SAID RIGHT OF WAY LINE . . . .” (capitalization in original). Subsequently 

in the legal description on the plat map of LLS–0146, the legal description 

states “AND THAT PORTION OF GOVERNMENT LOT 1, SECTION 8, T 

17 N., R 2 W, W.M. LYING NORTHWESTERLY OF THE RIGHT OF WAY 

OF THE BURLINGTON NORTHERN R. R . . . .” All three sheets of the plat 

map of LLS–1046 uses metes and bounds that indicate the boundaries of 

properties adjacent to the railroad corridor end at the edge of the railroad 

corridor. The three sheets of the plat map of LLS–0146 also all contain 

illustrations that indicate the tracts of land on LLS–0146 end at the edge of 

the railroad corridor and indicate that the centerline of the railroad corridor 

is separate from the boundaries of the abutting properties in LLS–0146. On 

each of the three sheets of the plat map of LLS–0146, next to the illustration 

of the centerline of the railroad corridor, appear the words “NOT IN PLAT.”

The legal description of LLS–0146, metes and bounds in the plat maps of 

LLS–0146, the illustrations in the plat map of LLS–0146, and the phrase 

“NOT IN PLAT” in the plat map of LLS–0146 indicate that the railroad 

corridor is separate from the abutting properties in LLS–0146, and that the 

railroad corridor is not included in LLS–0146. The legal description on the 

plat map of LLS–1046 describes LLS–1046 as extending to the railroad 

corridor, states that LLS–0146 runs “ALONG” the railroad corridor, and 

states that LLS–1046 is “LYING NORTHWESTERLY” of the railroad 

corridor. The metes and bounds and illustrations are consistent with the 

legal description of LLS–1046 and indicate that the properties in LLS–0146 

that abut the railroad corridor only extend up to the edge of the railroad 

corridor. The phrase “NOT IN PLAT” also indicates that the railroad corridor 

is not included in LLS–0146, which is consistent with the plain language and 

markings contained on the plat maps of LLS–1046. Additionally, the plat 

map of LLS–0146 illustrates the presence of other easements on LLS–

0146, including a “DRAINAGE AND UNIMPROVED MUTUAL 

EASEMENT,” a “B.P.A. EASEMENT,” a “BONNEVILLE POWER ADM 

EASEMENT,” several “DRAINAGE EASEMENT[S],” several 

“UNIMPROVED MUTUAL EASEMENT[S],” and several “PRIVATE 

EASEMENT ROAD[S].” Unlike the properties in LLS–0146 that abut the 

railroad corridor, the metes and bounds of properties on the plat map of 
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LLS–0146 extend into the easements on the plat map of LLS–0146. That 

the railroad corridor is not included in LLS–0146 is reinforced by the fact 

that the metes and bounds of properties in LLS–0146 extend into other 

easements on the LLS–0146 plat map, but the metes and bounds of the 

properties adjacent to the railroad corridor extend only up to the edge of the 

railroad corridor.

The plat maps of the referenced short subdivisions, which are referenced 

by the plaintiffs’ individual deeds and correspond with tracts of land on LLS–

0146, indicate that the plaintiffs do not own the land underlying the railroad 

corridor. None of the plaintiffs’ deeds contain language which purports to 

convey the land underlying the railroad corridor, and the illustrations in the 

referenced short subdivisions are consistent with the illustrations on the 

sheets of the plat map of LLS–0146 and indicate that the referenced short 

subdivisions end at the edge of the railroad corridor. The plat map of SS–

2411, which contains the parcels owned by Lucier plaintiff Andrew S. Lucier 

and Beattie plaintiff Stephen Upton, states in metes and bounds and has an 

illustration indicating that the edge of the properties in SS–2411 end at the 

edge of the railroad corridor. The plat map of SS–2411 also marks where 

the centerline of the railroad corridor is located and contains an arrow, 

above which is written “50’,” pointing to the edge of the properties and the 

centerline of the railroad corridor. The plat map of SS–2066, which contains 

the parcels owned by Lucier plaintiff Kris Allen O’Bannon, Kenneth T. and 

Shannon L. Kratina, and Jon Sandberg, states in metes and bounds and 

has an illustration indicating that the edge of the properties in SS–2066 end 

at the edge of the railroad corridor. As with the plat map of SS–2411, the 

plat map of SS–2066 also marks where the centerline of the railroad corridor 

is located and contains an arrow, above which is written “50’,” pointing to 

the edge of the properties and the centerline of the railroad corridor. 

Likewise, the plat map of SS–1966, which contains the parcel owned by 

Lucier plaintiff Robert M. and Kathleen Shaputis, the plat map of SS–1962, 

which contains the parcels owned by Lucier plaintiff Scott and Susan Putzier 

and Beattie plaintiff Clinton L. Termini, and the plat map of SS–2110, which 

contains the parcel owned by Beattie plaintiff Thomas E. Beattie, all contain 

metes and bounds and illustrations which indicate that the edge of the 

properties in the plat maps of SS–1966, SS–1962, and SS–2110 end at the 

edge of the railroad corridor. Each of the plat maps of the subdivisions 

referenced in the plaintiffs’ deeds use metes and bounds that indicate the 

boundaries of the parcels in the subdivisions extend to the edge of the 

railroad corridor, which indicates the parties did not intend to convey an 

interest in the land underlying the railroad. See Roeder Co. v. Burlington N., 

Inc., 716 P.2d [716 P.2d 855,] 862 [(Wash.), recons. denied (Wash. 1986)] 

(“A metes and bounds description in a deed to property that abuts a right of 

way is evidence of the grantor’s intent to withhold any interest in the abutting 

right of way . . . .” (citations omitted)). While a metes and bounds description 

does not definitively establish intent, collectively, the plaintiffs’ deeds, the 
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plat maps of the referenced short subdivisions, and the plat map of LLS–

0146 demonstrate that Lucier plaintiffs Andrew S. Lucier, Kris Allen 

O’Bannon, Kenneth T. and Shannon L. Kratina, Jon Sandberg, Scott and 

Susan Putzier, and Robert M. and Kathleen L. Shaputis and Beattie

plaintiffs Thomas E. Beattie, Clinton L. Termini, and Stephen Upton do not 

have an interest in the land underlying the railroad corridor.

Additionally, the chains of title offered by plaintiffs do not create a genuine 

issue of material fact. Nothing in the chains of title indicates that any of the 

nine aforementioned plaintiffs own the land underlying the railroad corridor. 

The deeds in the chains of title that post-date the creation of the plat map 

of LLS–0146 by Black Lake Estates, G.P. in 1982 for the nine plaintiffs 

owning land corresponding with tracts in LLS–1046 all describe the land 

being conveyed as either being in a short subdivision, the plat maps of 

which reference being located on LLS–0146. The post–1982 deeds in the 

chains of title for the nine plaintiffs do contain any language indicating that 

any of the plaintiffs own anything more than the properties described in the 

plat maps of the short subdivisions discussed above or LLS–0146, which, 

as stated above, do not include the land underlying the railroad corridor. 

The court, therefore, grants defendant’s motion for summary judgment 

against Lucier plaintiffs Andrew S. Lucier, Kris Allen O’Bannon, Kenneth T. 

and Shannon L. Kratina, Jon Sandberg, Scott and Susan Putzier, and 

Robert M. and Kathleen L Shaputis and Beattie plaintiffs Thomas E. Beattie, 

Clinton L. Termini, and Stephen Upton.

Id. at *34-35.

Regarding Lucier plaintiffs Jan Pettigrew, Keith D. Quentin, and Skiview Estates 

Association, whose deeds referenced plat maps that contained language “excepting” the 

railroad corridor from the plat maps, the court granted defendant’s motions for summary 

judgment against Lucier plaintiffs Jan Pettigrew, Keith D. Quentin, and Skiview Estates 

Association. Id. at *37-38. The court determined that, under Washington State law, the 

excepting language in the plat maps, the metes and bounds in the plat maps, and the 

illustrations in the plat maps indicated that Lucier plaintiffs Jan Pettigrew, Keith D. 

Quentin, and Skiview Estates Association do not own the land underlying the railroad 

corridor. Id.

In Lucier and Beattie plaintiffs’ identical July 3, 2018 motions for reconsideration

under RCFC 59, Lucier and Beattie plaintiffs argue that the court’s “determination that 

nine plaintiffs who own parcels in Large Lot Subdivision 0146 do not own the land under 

the corridor is a clear mistake of fact,” the court misapplied the centerline presumption,

and noted Sutton v. United States, 107 Fed. Cl. 436 (2012), a rails-to-trail case arising 

under California law, as “virtually indistinguishable.” According to plaintiffs, “the Court’s 

striking of plaintiffs’ extrinsic evidence of intent was based on a misinterpretation of the 

character and quality of the evidence presented,” “the Court’s determination that three 

plaintiffs who own parcels with ‘excepting deeds’ do not own the land under the corridor 
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is a clear error of law,” “the Court erred by viewing the evidence in favor of defendant,” 

and, “as an alternative, the Court should certify the interpretation of the centerline 

presumption to the Washington Supreme Court.”

Reconsideration of a judgment is not intended to permit a party to retry its case 

when it previously was afforded a full and fair opportunity to do so. The United States 

Court of Appeals for the Federal Circuit has stated that “[t]he decision whether to grant 

reconsideration lies largely within the discretion of the [trial] court.@ Yuba Nat. Res., Inc. 

v. United States, 904 F.2d 1577, 1583 (Fed. Cir.), reh=g denied (Fed. Cir. 1990); see also

Carter v. United States, 207 Ct. Cl. 316, 318, 518 F.2d 1199, 1199 (1975), cert. denied, 

423 U.S. 1076, reh’g denied, 424 U.S. 950 (1976); CanPro Invs. Ltd. v. United States, 

131 Fed. Cl. 528, 531 (2017); Osage Tribe of Indians of Okla. v. United States, 97 Fed. 

Cl. 345, 348 (2011) (discussing RCFC 59(a) and RCFC 60(b)); Oenga v. United States, 

97 Fed. Cl. 80, 83 (2011) (discussing RCFC 59(a)); Webster v. United States, 92 Fed. Cl. 

321, 324, recons. denied, 93 Fed. Cl. 676 (2010) (discussing RCFC 60(b)); Alpha I, L.P. 

ex rel. Sands v. United States, 86 Fed. Cl. 126, 129 (2009) (discussing RCFC 54(b) and 

59(a)); Banks v. United States, 84 Fed. Cl. 288, 291-92 (2008) (discussing RCFC 54(b) 

and 59(a)); Corrigan v. United States, 70 Fed. Cl. 665, 667-68 (2006) (discussing RCFC 

59(a)); Tritek Techs., Inc. v. United States, 63 Fed. Cl. 740, 752 (2005); Keeton Corr., 

Inc. v. United States, 60 Fed. Cl. 251, 253 (2004) (discussing RCFC 59(a)); Paalan v. 

United States, 58 Fed. Cl. 99, 105 (2003), aff=d, 120 F. App=x 817 (Fed. Cir.), cert. denied, 

546 U.S. 844 (2005); Citizens Fed. Bank, FSB v. United States, 53 Fed. Cl. 793, 794 

(2002) (discussing RCFC 59(a)).

AMotions for reconsideration must be supported >by a showing of extraordinary 

circumstances which justify relief.=@ Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. 

Cir. 2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999))

(discussing RCFC 59(a)), reh’g en banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 

(2005); see also Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d at 1382 (“Rule 60(b)(6) is 

available only in extraordinary circumstances and only when the basis for relief does not 

fall within any of the other subsections of Rule 60(b).” (citing Marquip, Inc. v. Fosber Am., 

Inc., 198 F.3d 1363, 1370 (Fed. Cir. 1999), reh’g denied (Fed. Cir. 2000)); Provident Sav. 

Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995)); Oenga v. United States, 97 Fed. Cl. 

at 83; Seldovia Native Ass’n Inc. v. United States, 36 Fed. Cl. 593, 594 (1996) (discussing 

RCFC 59(a)), aff’d, 144 F.3d 769 (Fed. Cir. 1998). Generally, “[t]he cases seem to make 

[a] fault/no fault distinction the controlling factor in determining whether extraordinary 

circumstances will be found or not. In a vast majority of cases finding that extraordinary 

circumstances do exist so as to justify relief, the movant is completely without fault . . . .” 

12 Joseph T. McLaughlin and Thomas D. Rowe, Jr., Moore’s Federal Practice § 

60.48[3][b] (3rd ed. 2008) (discussing RCFC 60(b)(6)); see also Amado v. Microsoft 

Corp., 517 F.3d 1353, 1363 (2008) (citing Pioneer Inv. Servs. Co. v. Brunswick Assoc. 

Ltd. P’ship, 507 U.S. 380, 393 (1993)) (discussing RCFC 60(b)(6)). 

Courts must address reconsideration motions with Aexceptional care.@ Carter v. 

United States, 207 Ct. Cl. at 318, 518 F.2d at 1199; see also Global Comput. Enters. v. 

United States, 88 Fed. Cl. 466, 468 (2009) (discussing RCFC 59(a)). “The three primary 
7

grounds that justify reconsideration are: ‘(1) an intervening change in the controlling law; 

(2) the availability of new evidence; and (3) the need to correct clear error or prevent 

manifest injustice.’” Del. Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 

1383 (Fed. Cir. 2010); see also Griffin v. United States, 96 Fed. Cl. 1, 7 (2010) (discussing 

RCFC 59(a)), mot. to amend denied, appeal dismissed, 454 F. App’x 899 (Fed. Cir. 2011); 

Totolo/King Joint Venture v. United States, 89 Fed. Cl. 442, 444 (2009) (quoting Stockton 

E. Water Dist. v. United States, 76 Fed. Cl. 497, 499 (2007), aff’d in part, vacated in part, 

rev’d in part on other grounds, 583 F.3d 1344 (Fed. Cir. 2009)) (discussing RCFC 59(a)), 

appeal dismissed, 431 F. App’x 895 (Fed. Cir.), reh’g denied (2011); Dairyland Power 

Coop. v. United States, 90 Fed. Cl. 615, 652 (2009) (discussing RCFC 59(a)), recons.

denied, No. 04-106C, 2010 WL 637793 (Fed. Cl. Feb. 22, 2010), aff’d in part, vacated in

part on other grounds, 645 F.3d 1363 (Fed. Cir. June 24, 2011); Matthews v. United 

States, 73 Fed. Cl. 524, 526 (2006) (citations omitted) (discussing RCFC 59); Prati v. 

United States, 82 Fed. Cl. 373, 376 (2008) (discussing RCFC 59(a)), aff’d, 603 F.3d 1301 

(Fed. Cir.), reh’g en banc denied (2010), cert. denied, 562 U.S. 1139 (2011); Tritek 

Techs., Inc. v. United States, 63 Fed. Cl. at 752; Bannum, Inc. v. United States, 59 Fed. 

Cl. 241, 243 (2003) (discussing RCFC 59(a)); Citizens Fed. Bank, FSB v. United States, 

53 Fed. Cl. at 794; Strickland v. United States, 36 Fed. Cl. 651, 657 (discussing RCFC 

59(a)), recons. denied (1996); Bishop v. United States, 26 Cl. Ct. 281, 286, recons. denied

(1992) (discussing Rule 59 of the Rules of the United States Claims Court). AManifest,@

as in Amanifest injustice,@ is defined as Aclearly apparent or obvious.@ Ammex, Inc. v. 

United States, 52 Fed. Cl. 555, 557 (2002) (discussing RCFC 59), aff’d, 384 F.3d 1368 

(Fed. Cir. 2004), cert. denied, 544 U.S. 948 (2005). “Where a party seeks reconsideration 

on the ground of manifest injustice, it cannot prevail unless it demonstrates that any 

injustice is ‘apparent to the point of being almost indisputable.’” Griffin v. United States, 

96 Fed. Cl. at 7 (quoting Pac. Gas & Elec. Co. v. United States, 74 Fed. Cl. 779, 785 

(2006), aff’d in part, rev’d in part on other grounds, 536 F.3d 1282 (Fed. Cir. 2008)). AA 

court, therefore, will not grant a motion for reconsideration if the movant >merely reasserts 

. . . arguments previously made . . . all of which were carefully considered by the court.=@

Ammex, Inc. v. United States, 52 Fed. Cl. at 557 (emphasis in original) (quoting Principal 

Mut. Life Ins. Co. v. United States, 29 Fed. Cl. 157, 164 (1993), aff’d, 50 F.3d 1021 (Fed. 

Cir.), reh’g denied, en banc suggestion declined (Fed. Cir. 1995)); see also CanPro Invs. 

Ltd. v. United States, 131 Fed. Cl. at 531; Griffin v. United States, 96 Fed. Cl. at 7; Bowling 

v. United States, 93 Fed. Cl. 551, 562 (discussing RCFC 59(a) and 60(b)), recons. denied

(2010); Webster v. United States, 92 Fed. Cl. at 324 (discussing RCFC 59(a) and 60(b)); 

Pinckney v. United States, 90 Fed. Cl. 550, 555 (2009); Tritek Techs., Inc. v. United 

States, 63 Fed. Cl. at 752.

In sum, it is logical and well established that, “‘[t]he litigation process rests on the 

assumption that both parties present their case once, to their best advantage;’ a motion 

for reconsideration thus should not be based on evidence that was readily available at 

the time the motion was heard.” Seldovia Native Ass’n Inc. v. United States, 36 Fed. Cl. 

at 594 (quoting Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 376, aff’d, 39 

F.3d 1198 (Fed. Cir. 1994) (table)). “Post-opinion motions to reconsider are not favored, 

especially ‘where a party has had a fair opportunity to . . . litigate the point in issue.’” 

Aerolease Long Beach v. United States, 31 Fed. Cl. at 376 (quoting Prestex, Inc. v. United 
8

States, 4 Cl. Ct. 317, 318, aff’d, 746 F.2d 1489 (Fed. Cir. 1984) (citing Gen. Elec. Co. v. 

United States, 189 Ct. Cl. 116, 117-18, 416 F.2d 1320, 1321 (1969))) (omission in original; 

other citation omitted).

Lucier and Beattie plaintiffs argue that the court erred in finding that Lucier plaintiffs 

Andrew S. Lucier, Kris Allen O’Bannon, Kenneth T. and Shannon L. Kratina, Jon 

Sandberg, Scott and Susan Putzier, and Robert M. and Kathleen L. Shaputis and Beattie

plaintiffs Thomas E. Beattie, Clinton L. Termini, and Stephen Upton, all of whom own 

property corresponding with tracts of land depicted on the plat map of LLS-0146, did not 

own the land underlying the railroad corridor. Lucier and Beattie plaintiffs attempt to 

support their motions for reconsideration by arguing that, prior to the issuance of the 

court’s June 1, 2018 Opinion, the “Plaintiffs presented to the Court a document that 

showed three principle facts necessary to the just determination of Plaintiffs’ claims and 

the Defendant’s cross-motion.” According to Lucier and Beattie plaintiffs, the “three facts” 

are:

1. The express lines and words used on plat LLS-0146 should be read to 

include the entire abutting half corridor to its centerline and not 

exclude the BNSF railroad as the Court held in its Order.

2. A plat later in time covering a portion of the same property subdivided by 

LLS-0146 supports the necessary conclusion that the plat includes the right 

of way that includes the easement that the Court held is excluded. Plat 

SS-2411, a plat drawn out of parcel number 1 of LLS-0146 and later in time, 

depicts the right of way to its centerline and does not contain any express 

words of exclusion. So do the other plats further subdividing LLS-0146; and

3. The owner excluded another piece of land from LLS-0146. The manner 

in which this piece was excluded demonstrates how the owner who created 

the plat would have excluded the railroad right of way had it intended to do 

so. The owner excluded a parcel by designating it on the plat and stating, 

“EXCEPT THAT PART OF GOVERNMENT LOT 1 DESCRIBED AS 

FOLLOWS: BEGINNING AT A POINT 30.00 FEET SOUTH AND 30.00 

FEET EAST OF THE N.W. CORNER OF SAID GOVERNMENT LOT 1: 

THENCE EAST 210.00 FEET. THENCE SOUTH 210.00 FEET. THENCE

WEST 210.00 FEET: THENCE NORTH 210.00 FEET TO THE P.O.B.” 

(Capitalization in original).

(emphasis in original). Regarding Lucier plaintiffs Jan Pettigrew, Keith D. Quentin, and 

Skiview Estates Association, whose deeds referenced plat maps that contained language 

“excepting” the railroad corridor from the plat maps, Lucier and Beattie plaintiffs argue 

that the court committed a “clear error of law” because plaintiffs “proved” that the grantors 

in the plaintiffs’ chains of title did not convey the land underlying the railroad corridor and 

“an objective review of the record affirms plaintiffs’ position with respect to these three 

Plaintiffs.”
9

Lucier and Beattie plaintiffs also contend that “[c]ircumstantial evidence of the type 

provided by Dr. Kilpatrick,” which plaintiffs acknowledge was struck by the court, “is 

sufficient to defeat a movant’s motion for summary judgment,” and that “the Defendant’s 

cross motion for summary judgment should have been denied and the ownership issue 

should now be set for trial.” Lucier and Beattie plaintiffs assert that “plaintiffs made clear 

on the record in response to the Court’s question, and later in a filing requested by the 

Court, that there are no conveyances of any interest in the fee strips underlying the 

corridor other than those conveyances in the chains of title from one grantor to the other 

to each of the plaintiffs in this case.” According to Lucier and Beattie plaintiffs, “[t]here is 

LLS-0146, but all the plat does is reinforce and repeat that at most the presumption is 

rebutted and give rise to ambiguity.” Lucier and Beattie plaintiffs further assert that the 

court erred because the plat map of LLS-0146 “contains conflicting indications” and “these 

conflicting indications should have been resolved at summary judgment in favor of 

Plaintiffs.” Lucier and Beattie plaintiffs argue that:

The Court construed the various indications of LLS-0146 as evidencing an 

intention by the grantors to retain the fee interest in the railroad right of way. 

The various indications, which were subject to opposing constructions, 

should have been resolved in favor of Plaintiffs as the nonmoving party. The 

Defendant’s interpretation of the phrase “B.N. R/W R.R. [centerline] (NOT 

IN PLAT)” was that the phrase is an unequivocal intention of the grantor’s 

intention that the fee simple in the right of way was specifically intended to 

be retained by the grantors. As discussed supra, this phrase was subject to 

a completely valid and plausible interpretation opposite to the Defendant’s.

Additionally, Lucier and Beattie plaintiffs assert that Sutton v. United States, a rails-totrails case analyzed under California law, “and this case are on all fours,” and that “[t]he 

Defendant lost in Sutton because it failed to come forth with any extrinsic evidence aside 

from the chains of title.”

Lucier and Beattie plaintiffs, however, had already made the arguments discussed 

above to the court prior to its June 1, 2018 Opinion. The court did not find plaintiffs’ 

arguments regarding LLS-0146 and the “excepting” language persuasive when analyzing 

whether the Lucier and Beattie plaintiffs owned the land underlying the railroad corridor, 

and in its June 1, 2018 Opinion, the court explained, at length, why the court concluded 

that the Lucier and Beattie plaintiffs did not own the land underlying the railroad corridor. 

See Lucier v. United States, 2018 WL 2471404, at *30-38. The court considered and 

disagreed with the Lucier and Beattie plaintiffs’ position in their identical May 21, 2018

supplemental filings to this court that the record before the court, including the plat map 

of LLS-0146, which contained the words “NOT IN PLAT,” “affirmatively demonstrates that 

the right of way, to the centerline, is included in plat LLS-0146, while the center line and 

beyond are excluded.” The court also did not find conflicting persuasive indications, as 

asserted by plaintiffs, that indicated Lucier plaintiffs Andrew S. Lucier, Kris Allen 

O’Bannon, Kenneth T. and Shannon L. Kratina, Jon Sandberg, Scott and Susan Putzier, 

and Robert M. and Kathleen L Shaputis and Beattie plaintiffs Thomas E. Beattie, Clinton 

L. Termini, and Stephen Upton owned the land underlying the railroad corridor.
10

Regarding “plaintiffs’ extrinsic evidence of intent,” the court explained that plaintiffs’ 

inability to offer transactions involving the land underlying the railroad corridor did not 

create a genuine issue of material fact because of “the plain, unambiguous language and 

markings in the plat maps of the referenced short subdivisions and LLS-0146, which 

indicate the railroad corridor was not included as part of the plaintiffs’ properties,” as well 

as the plain language and markings in the plat maps of the properties owned by Lucier

plaintiffs Jan Pettigrew, Keith D. Quentin, and Skiview Estates Association. Id. at *35 n.25, 

*38 n.27. In its earlier Opinion, the court also reviewed Sutton v. United States and 

analyzed plaintiffs’ argument that “‘[t]he court in Sutton v. United States, granted summary 

judgment in Plaintiffs [sic] favor upon the same type and degree of evidence provided in 

this case where the government’s defense was the same as it is here.’” See id. at *38. 

The court, however, found that, “unlike the decision in Sutton v. United States, the deeds 

and plat maps of all of the plaintiffs’ properties demonstrate that, under Washington law, 

the parties did not intend to pass fee interest in the land underlying the railroad corridor 

to the plaintiffs.” Id. at *39. 

Lucier and Beattie plaintiffs have not demonstrated any extraordinary 

circumstances or manifest injustice justifying reconsideration of this court’s June 1, 2018 

Opinion. Rather, the plaintiffs have rehashed arguments previously made by plaintiffs and 

previously considered by this court. Such assertions are not sufficient to support plaintiffs’

motions for reconsideration under RCFC 59. See Lee v. United States, 130 Fed. Cl. 243, 

252 (2017) (analyzing a motion for reconsideration under RCFC 59 and stating “[i]t is not 

sufficient for plaintiffs to reassert the same arguments they made in earlier proceedings, 

nor can plaintiffs raise new arguments that could have been made earlier” (citation 

omitted)), aff’d, No. 2017-1643, 2018 WL 3404023 (Fed. Cir. July 13, 2018). 

Lucier and Beattie plaintiffs further assert that, “[e]ven though the Court’s 

interpretation of the rebuttal rule was correct – metes and bounds rebut the presumption 

– Plaintiffs disagree that the rule was correctly applied.” The Lucier and Beattie plaintiffs 

argue that this court incorrectly viewed the plat maps of “LLS-0146 and the various short 

subdivision[s]” “as additional evidence of an intention by the grantors to retain unto 

themselves the fee interest in the railroad right of way.” Lucier and Beattie plaintiffs argue 

“that the plats contain indications that the right of way borders Plaintiffs’ properties adds 

nothing to the analysis” because “[i]t is not additional evidence, it does no more than 

repeat the principle.” According to Lucier and Beattie plaintiffs: 

The error of the Court’s application of the [centerline presumption] rule 

appears to flow at least in part from a flawed interpretation of the portion of 

the Roeder decision that dealt with the claims of the Davises. The Court 

correctly reports that the deed that applied to the Davises did not include a 

metes and bounds description, and only described the property as “lying 

Northerly of the right-of-way.” Roeder, 716 P.2d at 862 n. 27; ECF No. 45 

at p. 45. Thus, the centerline presumption was not rebutted, yet the court 

nonetheless held that the evidence supported an intent that the fee in the 

right of way was retained. But the court’s conclusion was not based upon 
11

the language of the deed describing the property as lying north of the right 

of way. Rather, it was because the Davises’ claim was defective at the 

outset – they failed to provide their current ownership deed, i.e., they 

failed to provide any deed or evidence that they obtained their abutting 

property from the fee owner of the land underlying the railroad corridor. Id.

at 862 (emphasis added).

(emphasis in original). The Lucier and Beattie plaintiffs note that they provided chains of 

title to the court and assert that:

Plaintiffs are therefore not in the same position as the Davises in Roeder, 

since Plaintiffs’ claims did not have the deficiency, as the Davises failed to 

demonstrate they were entitled to the centerline presumption in the first 

instance. Again, the Davises did not even present their ownership deed. 

Accordingly, it was error for the Court to compare the Plaintiffs to the 

Davises, and consider the fact that the right of way was named or identified 

in the plats as a boundary as additional evidence of intent to retain the fee 

in the right of way.

(emphasis in original).

The court’s June 1, 2018 Opinion explained that, in the cases before the court, the 

“legal description of LLS–0146, metes and bounds in the plat maps of LLS–0146, the 

illustrations in the plat map of LLS–0146, and the phrase ‘NOT IN PLAT’ in the plat map 

of LLS–0146 indicate that the railroad corridor is separate from the abutting properties in 

LLS–0146, and that the railroad corridor is not included in LLS–0146.” Id. at *34. The 

court also determined that:

The plat maps of the referenced short subdivisions, which are referenced 

by the plaintiffs’ individual deeds and correspond with tracts of land on LLS–

0146, indicate that the plaintiffs do not own the land underlying the railroad 

corridor. None of the plaintiffs’ deeds contain language which purports to 

convey the land underlying the railroad corridor, and the illustrations in the 

referenced short subdivisions are consistent with the illustrations on the 

sheets of the plat map of LLS–0146 and indicate that the referenced short 

subdivisions end at the edge of the railroad corridor.

Id. The court did not incorrectly compare the Lucier and the Beattie plaintiffs to the 

Davises in Roeder, but, rather, found that LLS-0146 indicated that plaintiffs did not own 

the land underlying the railroad corridor, which was consistent with plaintiffs’ 

subsequently-created deeds and the subsequently-created plat maps of plaintiffs’

properties. Thus, the Lucier and Beattie plaintiffs’ motions for reconsideration do not 

establish that the court committed an error of law when applying the centerline 

presumption, as plaintiffs contend.
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Finally, Lucier and Beattie plaintiffs

respectfully suggest that as an option the Court hold its judgment in 

abeyance and allow Plaintiffs to seek certification of the [centerline 

presumption] issue before the Washington Supreme Court. In light of the 

Court’s rulings thus far, Plaintiffs respectfully state that they have now 

decided they will seek such certification anyhow if this case proceeds to the 

appellate level, and so simply raise this as an option now for the Court’s 

consideration.

Under Rule 16.16 of the Washington State Rules of Appellate Procedure, “[t]he 

Supreme Court [of Washington] may entertain a petition to determine a question of law 

certified to it under the Federal Court Local Law Certificate Procedure Act if the question 

of state law is one which has not been clearly determined and does not involve a question 

determined by reference to the United States Constitution.” See Wash. R. App. P. 16.16 

(2018). Under Washington State’s Federal Court Local Law Certificate Procedure Act:

When in the opinion of any federal court before whom a proceeding is 

pending, it is necessary to ascertain the local law of this state in order to 

dispose of such proceeding and the local law has not been clearly 

determined, such federal court may certify to the supreme court [of 

Washington] for answer the question of local law involved and the supreme 

court shall render its opinion in answer thereto.

Wash. Rev. Code § 2.60.020 (2018). If Lucier and Beattie plaintiffs wanted to seek 

certification of a question regarding the centerline presumption under Washington State 

law to the Supreme Court of Washington, the plaintiffs could have requested such 

certification prior to the court’s issuance of its June 1, 2018 Opinion and the entering of 

judgment in favor of defendant on June 5, 2018. The Lucier and Beattie plaintiffs, 

however, did not suggest that the application of the centerline presumption warranted 

certification to the Supreme Court of Washington and did not assert that the centerline 

presumption under Washington State law was unclear until after the court analyzed 

plaintiffs’ arguments and granted summary judgment in favor of defendant. Moreover, the

court does not believe that “the interpretation of the centerline presumption,” or the 

interpretation of Roeder Co. v. Burlington Northern, Inc., as explained and applied in the 

court’s June 1, 2018 Opinion, is sufficiently unclear as to warrant certification to the 

Supreme Court of Washington. The court, therefore, declines to hold its judgment in 

abeyance or to seek certification of the centerline presumption issue before the Supreme 

Court of Washington.
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CONCLUSION

For the foregoing reasons, the Lucier plaintiffs’ motion for reconsideration is 

DENIED, and the Beattie plaintiffs’ motion for reconsideration also is DENIED. 

IT IS SO ORDERED.

 s/Marian Blank Horn

 MARIAN BLANK HORN

 Judge