United States Court of Appeals 

for the Federal Circuit ______________________ 

JEFFREY MEMMER, GILBERT EFFINGER, LARRY 

GOEBEL, SUSAN GOEBEL, OWEN HALPENY, 

JOSEPH JENKINS, MICHAEL MARTIN, RITA 

MARTIN, MCDONALD FAMILY FARMS OF 

EVANSVILLE, INC., REIBEL FARMS, INC., JAMES 

SCHMIDT, ROBIN SCHMIDT,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Cross-Appellant

______________________ 

2021-2133, 2021-2220

______________________ 

Appeals from the United States Court of Federal 

Claims in No. 1:14-cv-00135-MMS, Senior Judge Margaret 

M. Sweeney.

______________________ 

Decided: September 28, 2022

______________________ 

THOMAS SCOTT STEWART, Stewart Wald & McCulley, 

LLC, Kansas City, MO, argued for plaintiffs-appellants. 

Also represented by ELIZABETH MCCULLEY; STEVEN WALD, 

St. Louis, MO.

 DANIEL HALAINEN, Environment and Natural Resources Division, United States Department of Justice,

Case: 21-2133 Document: 54 Page: 1 Filed: 09/28/2022
2 MEMMER v. US

Washington, DC, argued for defendant-cross-appellant. 

Also represented by TODD KIM. 

 MARK F. HEARNE, II, True North Law Group, LLC, St. 

Louis, MO, for amici curiae Cato Institute, James W. Ely, 

Jr., National Association of Reversionary Property Owners, Owners’ Counsel of America, Reason Foundation, 

Southeastern Legal Foundation. Also represented by 

STEPHEN S. DAVIS. 

______________________ 

Before LOURIE, SCHALL, and REYNA, Circuit Judges. 

SCHALL, Circuit Judge. 

Jeffrey Memmer and the eleven other plaintiffs-appellants in this case (collectively, “Appellants” or “landowners”) own property in the state of Indiana. In February of 

2014, they brought suit in the United States Court of Federal Claims, seeking compensation for an alleged taking 

arising from the operation of § 8(d) of the National Trails 

System Act Amendments of 1983 (“Trails Act”), 16 U.S.C. 

§ 1247(d).1 Appellants claimed that actions taken by the 

government on April 8, 2011, had permanently taken their 

property. According to Appellants, the taking arose out of 

the abandonment by Indiana Southwestern Railway Company (“Indiana Southwestern”) of railway easements in Indiana in which Appellants had reversionary interests. 

Following a trial, the Court of Federal Claims found that 

1 The original complaint was filed by Mr. Memmer 

for himself and as representative of a class of similarly situated individuals. Complaint, Memmer v. United States, 

No. 1:14-cv-00135-MMS (Fed. Cl. Feb. 18, 2014), ECF 

No. 1. In January of 2015, Mr. Memmer, joined by the 

other named Appellants, filed an amended complaint. 

Amended Complaint, Memmer v. United States, No. 1:14-

cv-00135-MMS (Fed. Cl. Jan. 9, 2015), ECF No. 19.

Case: 21-2133 Document: 54 Page: 2 Filed: 09/28/2022
MEMMER v. US 3

the United States had taken Appellants’ property. The 

court determined, however, that the taking lasted only 

from May 23, 2011, to January 7, 2014. Memmer v. United 

States, 150 Fed. Cl. 706, 761 (Nov. 2, 2020) (“Memmer I”). 

Following the court’s decision, and after the parties stipulated to compensation and interest, the court entered judgment in favor of Appellants. Judgment, Memmer v. United 

States, No. 1:14-cv-00135-MMS (Fed. Cl. June 7, 2021), 

ECF No. 198, J.A. 77.

Appellants have appealed the ruling of the Court of 

Federal Claims that the taking by the United States lasted 

only from May 23, 2011, to January 7, 2014. For its part, 

the government has cross-appealed. It contends that the 

Court of Federal Claims erred in holding that Appellants’ 

property was taken. In the alternative, the government argues that, if there was a taking, it lasted only from May 23, 

2011, to November 8, 2013. 

For the reasons set forth below, we agree with the 

Court of Federal Claims that Appellants’ property was 

temporarily taken under the Trails Act. We agree with the 

government, however, that the taking lasted only from 

May 23, 2011, to November 8, 2013. Accordingly, we affirm-in-part and vacate-in-part. The case is remanded to 

the Court of Federal Claims for a determination as to the 

compensation and interest to which Appellants are entitled 

as a result of the taking of their property having ended on 

November 8, 2013, rather than on January 7, 2014.

BACKGROUND

I 

A rail carrier that intends to abandon or discontinue a 

rail line must either file an application with, or seek exemption from, the Surface Transportation Board (“STB” or 

“Board”). The STB has authority to regulate the construction, operation, and abandonment of most rail lines in the 

United States. 49 U.S.C. §§ 10903, 10502; 49 C.F.R. 

Case: 21-2133 Document: 54 Page: 3 Filed: 09/28/2022
4 MEMMER v. US

§§ 1152.20–1152.22, 1152.50; Caldwell v. United States, 

391 F.3d 1226, 1228 (Fed. Cir. 2004). At the same time, 

Congress has determined it beneficial to preserve established railroad rights-of-way and to create recreational

trails. Accordingly, § 8(d) of the Trails Act, 16 U.S.C. 

§ 1247(d), provides a mechanism for a rail carrier that intends to abandon or discontinue a rail line to instead negotiate an agreement with a locality or a private entity trail 

sponsor to convert the railroad’s right-of-way into a recreational trail.2 

If a rail carrier has sought an abandonment exemption 

and agrees to negotiate an agreement with a trail sponsor, 

the STB will issue a Notice of Interim Trail Use or Abandonment (“NITU”). The NITU provides for a negotiation 

period during which the railroad can “discontinue service” 

on the rail line and “salvage track and materials.” 

49 C.F.R. § 1152.29(d)(1) (2012) (providing a negotiation 

period of 180 days); Preseault v. Interstate Com. Comm’n, 

494 U.S. 1, 7 & n.5 (1990) (discussing the 180-day negotiation period following the issuance of a NITU by the Interstate Commerce Commission, the predecessor to the STB).3 

2 An alternate means of preventing the abandonment of a rail line is through another party’s offer to subsidize the rail line that is the subject of an abandonment 

application. This is referred to as an Offer of Financial Assistance, or “OFA.” See 49 U.S.C. § 10904.

3 If a railroad that has applied for abandonment 

without seeking an exemption agrees to negotiate a trailuse agreement, the railroad may apply to the STB for a

Certificate of Interim Trail Use or Abandonment (“CITU”). 

49 C.F.R. § 1152.29(c)(1) (2012). Section 1552.29 of Title 

49 has changed and currently provides that a railroad may 

fully abandon the line if no interim trail-use agreement is 

reached within one year of the issuance of the NITU or 

CITU. See 49 C.F.R. § 1552.29(c),(d) (2020). 

Case: 21-2133 Document: 54 Page: 4 Filed: 09/28/2022
MEMMER v. US 5

After the negotiation period, if no agreement is reached, 

the railroad may abandon the line and file a notice of consummation of abandonment with the Board. 49 C.F.R. 

§ 1152.29(d)(1), (e)(2). If an agreement is reached, trail use 

of the right-of-way is authorized and abandonment by the 

railroad is blocked indefinitely, subject to restoration of the 

right-of-way for railroad purposes. Castillo v. United 

States, 952 F.3d 1311, 1315 (Fed. Cir. 2020); see also 16 

U.S.C. § 1247(d). Because the right-of-way may be restored for railroad purposes, the process contemplated by 

the Trails Act is referred to as “railbanking.” See Caldwell, 

391 F.3d at 1229.

Where the railroad held an easement to the underlying 

property, the conversion of the right-of-way to a recreational trail, and thus the implementation of a new easement, can form the basis for a physical takings claim under 

the Fifth Amendment to the Constitution. Preseault v. 

United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en 

banc) (“Presault II”). Such a taking occurs when “state law 

reversionary property interests that would otherwise vest 

in the adjacent landowners are blocked from so vesting.” 

Caldwell, 391 F.3d at 1233. We have explained that the

taking begins upon the issuance of the NITU, “the only government action in the railbanking process that operates to 

prevent abandonment of the corridor and to preclude the 

vesting of state law reversionary interests in the right-ofway.” Id. at 1233–34, 1236; see also Barclay v. United 

States, 443 F.3d 1368, 1373 (Fed. Cir. 2006).

In Ladd v. United States, 630 F.3d 1015, 1023–24 (Fed. 

Cir. 2010), we held that where no trail-use agreement is 

reached, but the NITU compels the railroad to delay its 

abandonment, the issuance of a NITU can effect a temporary physical taking. In Caquelin v. United States, 959 

F.3d 1360 (Fed. Cir. 2020) (“Caquelin III”), we clarified and 

explained whether the issuance of a NITU alone can trigger a taking. The Caquelin III court clarified the legal

standard for ‘‘the timing of a NITU-based taking’’ and the 

Case: 21-2133 Document: 54 Page: 5 Filed: 09/28/2022
6 MEMMER v. US

application of general causation principles under Caldwell, 

Barclay, and Ladd. 959 F.3d at 1370–71. The court explained that, because a railroad’s easement would remain 

in place absent abandonment by the railroad, there could 

be no taking until the time as of which, had there been no 

NITU, the railroad would have abandoned the rail line. See 

id. at 1371–72. In other words, ‘‘a NITU does not effect a 

taking if, even in the absence of a NITU, the railroad would 

not have abandoned its line (a necessary prerequisite for 

termination of the easement under state law) during the

period of the NITU.’’ Id. at 1363. ‘‘[I]n such a case, the 

NITU takes nothing from the landowner that the landowner would have had in the absence of the NITU.’’ Id.

II

On October 25, 2010, Indiana Southwestern submitted 

a notice of exemption from abandonment proceedings, stating that it would consummate abandonment of its rail lines 

on or after January 15, 2011. Memmer I, 150 Fed. Cl. at 

748; J.A. 253–54, 1253–57, 1358–61. In response, on November 12, 2010, the STB published a notice stating that, 

absent third party intervention, the exemption would be 

effective, and thus, Indiana Southwestern could abandon 

the lines, on December 14, 2010.4 75 Fed. Reg. 69,520 (Nov. 

12, 2010). The STB’s notice indicated that the deadline for 

railbanking requests and OFAs was November 22, 2010. 

Id. Pursuant to 49 C.F.R. § 1152.29(e)(2), Indiana Southwestern was given one year from the STB’s notice, until 

November 12, 2011, to file a notice of consummation of 

abandonment, if it chose to do so. 

A few days after the STB’s notice was published, the 

Indiana Trails Fund, Inc. (“Trails Fund”) submitted a request for the Board to issue a NITU for the rail corridor to 

4 We hereafter sometimes refer to Indiana Southwestern’s rail lines collectively as the “rail line” or “line.”

Case: 21-2133 Document: 54 Page: 6 Filed: 09/28/2022
MEMMER v. US 7

permit negotiations about railbanking if Indiana Southwestern agreed. J.A. 254. The Board also received notice 

from the Town of Poseyville, Indiana of its intent to file an 

OFA. 

On November 23, 2010, Indiana Southwestern advised 

that it was “willing to negotiate interim trail use/rail banking with . . . the Indiana Trails Fund, Inc.” Suppl. App. 1.5 

The Town of Poseyville’s OFA, however, took priority over 

the railbanking request, and there were several months of 

proceedings over the town’s offer. Memmer I, 150 Fed. Cl. 

at 733–34. Ultimately, the Poseyville offer fell through.

Thereafter, with the railroad’s consent, on April 8, 

2011, the Board issued a NITU that became effective May 

23, 2011. Id. at 734, 751; J.A. 254, 1362–69. The NITU 

provided a 180-day period for the Trails Fund and Indiana 

Southwestern to negotiate an interim trail-use agreement, 

through November 19, 2011. J.A. 1368–69. The Trails 

Fund obtained four extensions—all with the consent of Indiana Southwestern—through November 8, 2013. Id. at

254–55, 1075, 1370–73. While the NITU was pending, Indiana Southwestern executed a contract with A&K Materials, Inc. (“A&K”). Pursuant to that contract, A&K agreed 

to purchase and remove the rails on the rail line except 

those in rail crossings. Memmer I, 150 Fed. Cl. at 735, 748. 

It also agreed to move the ties from the center of the rail 

line. Id. A&K complied with the terms of the agreement 

and completed its work by early February of 2012.

The NITU deadline lapsed, and the NITU therefore expired, without the Trails Fund and Indiana Southwestern 

executing a trail-use agreement. Because the NITU extensions had lasted more than one year, under 49 C.F.R. 

5 Our citation to Suppl. App. refers to the Supplemental Appendix filed as an addendum to the United 

States’ Opening Brief.

Case: 21-2133 Document: 54 Page: 7 Filed: 09/28/2022
8 MEMMER v. US

§ 1152.29(e)(2), Indiana Southwestern then had 60 days—

through January 7, 2014—to file a notice of consummation 

of abandonment of the rail line. It chose not to do so, however. See J.A. 1077, 1214, 1229. 

Eventually, Indiana Southwestern submitted a new 

notice of exemption. In response, the STB published a notice in July of 2021, shortly after this appeal was filed. 

86 Fed. Reg. 37,782 (July 16, 2021). The STB’s notice 

stated that, absent third party intervention by July 26, 

2021, the exemption would be effective, and thus Indiana 

Southwestern could abandon the line, on August 15, 2021. 

No potential trail sponsors came forward, and no NITU issued. Indiana Southwestern then filed a notice of consummation with the Board on August 31, 2021, meaning that 

the rail line was officially abandoned. As a result, Indiana 

Southwestern’s easements terminated, and the landowners’ fee simple interests became unencumbered by any 

easements. 

III

On January 9, 2015, the landowners filed their 

amended complaint, asserting that the issuance of the 

NITU on April 8, 2011, effected a permanent Fifth Amendment taking of their property. The landowners alleged that 

they each owned their property in fee simple; that Indiana 

Southwestern owned an easement across each of their 

properties; that their properties would no longer be burdened by that easement if the easement was abandoned or 

authorized for use beyond its scope; and that, but for the 

issuance of the NITU, they would own their land unencumbered by any easements. Memmer I, 150 Fed. Cl. at 

716–17. 

The parties each moved for summary judgment on liability. Relevant to this appeal, the parties disputed 

whether the issuance of the NITU effected a taking when a 

trail-use agreement was not executed, the NITU expired on 

its own terms, and Indiana Southwestern did not 

Case: 21-2133 Document: 54 Page: 8 Filed: 09/28/2022
MEMMER v. US 9

consummate abandonment of its rail line during the period 

of the NITU. Id. at 717. 

In an Opinion and Order issued July 10, 2015, the 

Court of Federal Claims held that the NITU effected a temporary categorical taking that spanned from May 23, 2011, 

the date the NITU went into effect, to November 8, 2013, 

the date the NITU expired.6 Id. The parties ultimately 

reached a settlement on the amount due for the claims that 

survived summary judgment, and each appealed different 

facets of the court’s Opinion and Order to this court. Id. at 

717–18.

While the case was on appeal, our court issued a predecessor decision to Caquelin III, Caquelin v. United 

States, 697 F. App’x 1016 (Fed. Cir. 2017) (“Caquelin I”). 

In that case, the government argued for the application of 

a multi-factor takings analysis pursuant to Penn Central 

Transportation Co. v. City of New York, 438 U.S. 104, 124 

(1978), and Arkansas Game & Fish Commission v. United 

States, 568 U.S. 23, 38–40 (2012), instead of a categorical 

takings analysis. Our court’s Caquelin I decision remanded for a decision by the Court of Federal Claims to 

create in that case “a fully developed record applying the 

multi-factor analysis the government urge[d].” Caquelin I, 

697 F. App’x at 1020. The parties in this case then jointly

sought, and our court granted, a remand consistent with 

the ruling in Caquelin I. Memmer I, 150 Fed. Cl. at 718. 

Subsequently, the Court of Federal Claims issued its decision on remand in Caquelin, Caquelin v. United States, 

140 Fed. Cl. 564 (“Caquelin II”), setting forth the Court of 

6 A categorical taking occurs when a regulation 

“compel[s a] property owner to suffer a physical invasion” 

or “denies all economically beneficial or productive use” of 

the property. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 

1015 (1992) (internal quotation marks omitted). 

Case: 21-2133 Document: 54 Page: 9 Filed: 09/28/2022
10 MEMMER v. US

Federal Claims’ multi-factor analysis. Id. at 584. Our 

court then issued Caquelin III, which reaffirmed that a 

taking under the Trails Act is a categorical taking and clarified the applicable causation standard, as discussed above. 

959 F.3d at 1367–73. Caquelin III issued before the issuance of the decision presently on appeal.

On remand in this case, the Court of Federal Claims 

allowed additional discovery and conducted a trial on liability and damages. With the benefit of the issuance of our 

Caquelin III decision before it, the court understood that it 

needed to analyze “whether the Board’s issuance of the 

NITU caused the injury alleged by [the landowners]—a 

compelled continuation of Indiana Southwestern’s easements that prevented [the landowners] from acquiring fee 

simple interests in the underlying land by operation of 

state law.” Memmer I, 150 Fed. Cl. at 747. Before the 

Court of Federal Claims, the government argued that the 

landowners suffered no injury because they were in the 

same position they were in before Indiana Southwestern 

filed its notice of exemption. Id. The landowners contended that they were injured by the Board’s issuance of 

the NITU—at least while the NITU was in effect—because 

a NITU automatically causes a taking under binding precedent. Id. at 747–48.

In its decision, the Court of Federal Claims determined 

that the landowners had established that Indiana Southwestern would have abandoned the rail lines in the absence 

of the NITU. Id. at 748. The court relied on the fact that 

Indiana Southwestern initiated the process for abandonment by filing a notice of exemption in which it represented 

that it had no local traffic move over its lines for at least 

the preceding two years and averred that it would consummate the abandonment of the lines “on or after January 15, 

2011.” Id. (quoting J.A. 1254). The court also relied on the 

fact that, during the pendency of the NITU, Indiana Southwestern engaged A&K to remove the rails on the line. Id. 

In addition, the court noted, counsel for Indiana 

Case: 21-2133 Document: 54 Page: 10 Filed: 09/28/2022
MEMMER v. US 11

Southwestern testified that, even after the NITU expired, 

it was Indiana Southwestern’s intent to either finalize the 

abandonment or execute a trail-use agreement. Id. at 748; 

see J.A. 1196–98, 1228–29. The court concluded:

These facts reflect that Indiana Southwestern had 

every intent to abandon the railroad lines during 

the period of time that the NITU was in effect, and 

was prevented from doing so by the existence of the 

NITU. Further, the only evidence possibly suggesting that Indiana Southwestern might not have

abandoned the lines between May 23, 2011, and 

November 8, 2013, is the fact that it did not file a 

notice of consummation within the sixty-day period 

following the expiration of the NITU, as legally required. However, what Indiana Southwestern 

chose to do (or not do) after the NITU expired is not 

particularly suggestive of what Indiana Southwestern was planning to do while the NITU was in place 

because such action (or inaction) might have been 

prompted by information learned or circumstances 

that arose after the NITU expired. And even if it 

was suggestive, it is outweighed by the evidence

demonstrating Indiana Southwestern’s intent to 

abandon the lines. Accordingly, the Board’s issuance of the NITU injured plaintiffs by compelling 

the continuation of Indiana Southwestern’s easements––despite Indiana Southwestern’s expressed 

intent to abandon the lines––and preventing them

from acquiring fee simple interests in the underlying land.

Memmer I, 150 Fed. Cl. at 748 (footnote omitted) (citing

Caquelin III, 959 F.3d at 1370–71 (focusing on whether the 

railroad company would have abandoned its line ‘‘during

the NITU’’ period)). The court noted that evidence indicating that the railroad continued to negotiate a trail-use 

agreement with the Trails Fund after the NITU expired 

Case: 21-2133 Document: 54 Page: 11 Filed: 09/28/2022
12 MEMMER v. US

was irrelevant to whether it would have abandoned the rail 

lines during the pendency of the NITU. Id. at 748 n.41.

The Court of Federal Claims then examined the scope 

and duration of the taking. Id. at 750–52. The court rejected the landowners’ argument that the taking was permanent. Instead, the court determined, the taking was 

temporary, lasting from the date the NITU became effective—May 23, 2011—through the deadline under 49 C.F.R. 

§ 1152.29(e)(2) for Indiana Southwestern to file its notice 

of consummation of abandonment—January 7, 2014. Id.

at 751–52. 

Following its decision, the court denied the landowners’ 

motion for reconsideration. Memmer v. United States, 153 

Fed. Cl. 707 (May 20, 2021). After the parties then stipulated to damages and interest, the court entered final judgment on June 7, 2021. J.A. 77. Appellants timely appealed 

and the government timely cross-appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

I 

“We review the Court of Federal Claims’ legal conclusions de novo and its factual findings for clear error.” 

Caquelin III, 959 F.3d at 1366 (citing Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1340 (Fed. Cir. 

2018)). “Whether a taking has occurred is a question of law 

based on factual underpinnings.” Id. (citing Wyatt v. 

United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)). Causation is a question of fact we review for clear error. Hendler v. United States, 175 F.3d 1374, 1378 (Fed. Cir. 1999). 

II

We turn first to the government’s cross-appeal, which 

challenges the Court of Federal Claims’ conclusion that the 

issuance of the NITU in this case effected a taking. According to the government, “there is no change to the 

Case: 21-2133 Document: 54 Page: 12 Filed: 09/28/2022
MEMMER v. US 13

landowners’ property interests,” and therefore no taking, 

“when a railroad requests abandonment authority from the 

Board and then [the railroad] chooses not to exercise that 

authority,” as Indiana Southwestern did in this case. 

United States Opening Br. 33. 

The government urges that our cases have found a taking to have occurred only where the NITU either (a) resulted in a trail-use agreement; or (b) compelled a delay in 

the railroad’s abandonment of its line. Id. at 20–26, 30–36. 

“[W]hen a NITU expires with no change in the use of the 

rail corridor or in federal jurisdiction over the rail line,” the 

government contends, it “cannot be said to have caused a 

change in the nature or effect of any easement.” Id. at 33. 

The government also urges that in a situation “when the 

railroad does not abandon the line and easements do not 

terminate after the NITU period, no government action . . . 

can be said to have caused a delay,” and therefore no temporary taking has occurred, because “[t]he government 

cannot delay something that does not happen.” Id. at 34. 

Relatedly, the government contends that the Court of 

Federal Claims erred when it held that the Caquelin III

causation standard was met, i.e., that Indiana Southwestern would have abandoned the rail line if the NITU had not 

issued. Id. at 36–42. The government points to Indiana 

Southwestern’s decisions to participate in negotiations 

with a potential trail sponsor and to extend the NITU and 

argues that these actions show the railroad’s interest in 

pursuing a rail-trail as opposed to an interest in abandoning the rail corridor. Id. at 37–39. The government also 

points to Indiana Southwestern’s decision not to consummate abandonment after the NITU expired, urging that it 

“should weigh heavily against the conclusion that the 

NITU caused a physical taking solely by preventing the 

railroad from abandoning the line during its pendency.” Id.

at 39. The government posits that, in this case, Indiana 

Southwestern “simply exercised its discretion—as it 

Case: 21-2133 Document: 54 Page: 13 Filed: 09/28/2022
14 MEMMER v. US

always may—to not finish the regulatory process that it began.” Id. at 20. 

Appellants respond that “the evidence of causation in 

this case is substantial, overwhelming, and unrefuted and 

far exceeds the nature of the evidence that established causation in [Caquelin III].” Appellants’ Resp. & Reply Br. 3; 

see also id. at 2–3, 4–9. Appellants argue that, in Caquelin 

III, our court considered, and found sufficient to determine 

that Ms. Caquelin had met her burden on the causation issue, evidence of the railroad’s actions before the NITU (“the 

railroad filed an application to abandon, indicating an affirmative intent to abandon”); evidence of its actions during 

the NITU (the railroad “refused [to consent to an extension 

of the NITU], confirming an interest in abandoning sooner 

rather than later” and removed track during the NITU); 

and evidence of its actions after the NITU (the railroad 

“completed the abandonment just three months after . . . 

the date . . . it became legally authorized to abandon the 

line”)). Id. at 11–12 (citing Caquelin III, 959 F.3d at 1372–

73). Appellants also point out that the Caquelin III court 

considered that the railroad in that case fulfilled the standard of abandonment under state law. Id. at 12.

The evidence of causation in this case that Appellants 

point to is evidence that Indiana Southwestern intended to 

consummate abandonment when it submitted its notice of 

exemption before the NITU issued, evidence that the railroad removed the rails and ties during the pendency of the 

NITU (which, Appellants argue, established abandonment 

under Indiana state law), and evidence that the railroad 

still intended to either consummate abandonment or enter 

into a trail-use agreement when the NITU expired, and ultimately did formally consummate abandonment under 

federal law in 2021. Id. at 12–15 (citing J.A. 1216, 1221, 

1228–29).

Case: 21-2133 Document: 54 Page: 14 Filed: 09/28/2022
MEMMER v. US 15

III

To begin, we disagree with the government that a physical taking cannot occur when a NITU ends without either 

a trail-use agreement or the consummation of the railroad’s abandonment. As we stated in Caquelin III: 

The NITU in this case, as in similar cases, was a

government action that compelled continuation of 

an easement for a time; it did so intentionally and 

with specific identification of the land at issue; and 

it did so solely for the purpose of seeking to arrange, without the landowner’s consent, to continue the easement for still longer, indeed

indefinitely, by an actual trail conversion.

Caquelin III, 959 F.3d at 1367. Thus, once initiated, a 

NITU can effect a “mandated continuation” of an easement 

by the STB that “provid[es] a right of occupation by someone other than the landowner and . . . bar[s] the landowner 

from using the ground burdened by the easement.” Id.; see 

also Ladd, 630 F.3d at 1025; Caldwell, 391 F.3d at 1234, 

1236. This “mandated” or “compelled” continuation of an 

easement can occur regardless of whether the NITU ultimately leads to a trail-use agreement or the railroad’s 

abandonment is ultimately consummated. That said, as 

we explained in Caquelin III, in order to determine if a 

NITU has effected a taking, we must consider whether the 

railroad would have abandoned the line, i.e., relinquished 

its rights to the rail right-of-way, during the period of the 

NITU had there been no NITU. 959 F.3d at 1372. That 

brings us to the matter of causation in this case. In that 

regard, we are not persuaded by the government’s argument that the Court of Federal Claims erred in its causation analysis. 

Significantly, the government does not argue that the 

court’s findings of fact on causation are clearly erroneous. 

Oral Argument, 15:25–16:18 (June 6, 2022), 

https://oralarguments.cafc.uscourts.gov/default.aspx?fl=

Case: 21-2133 Document: 54 Page: 15 Filed: 09/28/2022
16 MEMMER v. US

21-2133_06062022.mp3. What this means is that, in order 

for us to reverse the Court of Federal Claims on causation, 

we would have to conclude that the facts found by the court 

are insufficient support for the finding that “Indiana 

Southwestern had every intent to abandon the railroad 

lines during the period of time that the NITU was in effect, 

and was prevented from doing so by the existence of the 

NITU.” Memmer I, 150 Fed. Cl. at 748; see Caquelin III, 

959 F.3d at 1372–73 (rejecting the government’s argument 

that the evidence was insufficient to support a finding of 

causation where there was no evidence indicating the railroad would have delayed abandonment had there been no 

NITU). We are unable to reach that conclusion, however.

Since it does not challenge the Court of Federal Claims’ 

findings of fact, the government relies heavily on evidence 

that Indiana Southwestern was interested in entering into 

a trail-use agreement as showing that the railroad did not 

intend to abandon the rail line during the NITU period. We 

fail to see, though, how this evidence helps the government 

when, had a trail-use agreement been reached during the 

NITU, a taking of Appellants’ property would have occurred. See Presault II, 100 F.3d at 1550 (holding that the 

conversion of a rail line to a public trail was a taking of a 

new easement for which the landowners were entitled to 

compensation). Moreover, the government does not point 

to any evidence indicating that Indiana Southwestern had 

changed its mind and wished to continue operating the rail 

line during the NITU period. We therefore cannot say that 

the Court of Federal Claims erred in finding the evidence 

that Indiana Southwestern would have relinquished its 

rights to its right-of-way during the NITU period outweighed the evidence to the contrary.

IV

We turn next to the issue of when the temporary taking 

ended. Appellants urge us to hold that the taking lasted 

until Indiana Southwestern consummated its 

Case: 21-2133 Document: 54 Page: 16 Filed: 09/28/2022
MEMMER v. US 17

abandonment on August 31, 2021. Appellants’ Br. 2, 5, 38–

41, 44–52. This is so, Appellants contend, because the requirements for abandonment under Indiana law were satisfied upon the railroad’s removal of the rails, yet 

Appellants’ reversionary rights were still blocked until the 

railroad filed a notice of consummation of abandonment as 

required by 49 C.F.R. § 1152.29(e)(2). Id. at 41; Appellants’ 

Resp. & Reply Br. 24–26.

For its part, the government contends that, if we agree 

with the Court of Federal Claims that a taking occurred, 

we nevertheless should hold that the court erred when it 

held that the taking ended on January 7, 2014, the conclusion of the 60-day period following expiration of the NITU. 

It was during that period that Indiana Southwestern could

have filed a notice of consummation of abandonment had it 

chosen to do so. Instead, the government argues, the taking ended when the NITU expired on November 8, 2013, 

because after that date, the decision to fully abandon the 

rail line, and thus the continuation or non-continuation of 

the easement, was solely in the control of Indiana Southwestern. The government responds to Appellants’ arguments regarding Indiana law by pointing out that the STB 

has exclusive and plenary jurisdiction over the abandonment of rail lines, and that abandonment under state law 

is preempted by federal law. United States Opening Br. 

55–57; United States Resp. & Reply Br. 15–16; see also Appellants’ Resp. & Reply Br. 20.

V

We agree with the government that the taking ended 

upon expiration of the NITU on November 8, 2013. This is 

so because it was on that date that the United States was 

no longer responsible for mandating the continuation of the 

easement because, from that point forward, the decision 

rested solely in the hands of Indiana Southwestern. Navajo Nation v. United States, 631 F.3d 1268, 1274 (Fed. Cir. 

Case: 21-2133 Document: 54 Page: 17 Filed: 09/28/2022
18 MEMMER v. US

2011) (“A takings claim must be predicated on actions undertaken by the United States . . . .”).

For the same reason, we reject Appellants’ argument

that the taking lasted until August 31, 2021, when Indiana 

Southwestern finally filed its notice of consummation of 

abandonment pursuant to 49 C.F.R. § 1152.29(e)(2). Appellants claim that § 1152.29(e)(2) effected a taking because it allowed the railroad to fail to consummate 

abandonment after state law abandonment had already occurred. In other words, Appellants argue that, because 

§ 1152.29(e)(2) requires the filing of a notice of consummation of abandonment, but does not mandate the filing of 

that notice as of the date state law abandonment requirements are met, the regulation had the effect in this case of 

extending Indiana Southwestern’s easements and therefore the taking of Appellants’ property, for an additional 

period.7 We reject this argument. As Appellants 

acknowledge, “it is always the railroad’s choice that ultimately impacts the duration of the taking.” Appellants’ 

Resp. & Reply Br. 26. Moreover, acceptance of Appellants’ 

7 Paragraph (e)(2) of 49 C.F.R. § 1152.29 states that 

a railroad that has received authority from the STB to 

abandon a rail line “shall file a notice of consummation 

with the Board to signify that it has exercised the authority 

granted and fully abandoned the line (e.g., discontinued operations, salvaged the track, canceled tariffs, and intends 

that the property be removed from the interstate rail network).” 49 C.F.R. § 1152.29(e)(2). The regulation provides 

that, “assuming that the railroad intends to consummate 

the abandonment,” the notice of consummation must be 

filed within one year of the service date of the decision permitting the abandonment unless at the conclusion of the 

one-year period a legal or regulatory barrier exists, in 

which case the notice of consummation must be filed no 

later than 60 days after the barrier is removed. Id.

Case: 21-2133 Document: 54 Page: 18 Filed: 09/28/2022
MEMMER v. US 19

argument would effectively contradict the STB’s plenary 

authority to regulate abandonment, which Congress 

granted over a hundred years ago in the Transportation 

Act of 1920, Pub. L. No. 66-162, 41 Stat. 456, 477–78 (“[N]o 

carrier by railroad subject to this Act shall abandon all or 

any portion of a line of railroad, or the operation thereof, 

unless and until there shall first have been obtained from 

the Commission a certificate that the present or future 

public convenience and necessity permit of such abandonment.”). 

CONCLUSION

For the foregoing reasons, we hold that the Court of 

Federal Claims did not err in finding that Appellants suffered a temporary taking of their property. We hold that 

the court did err, however, in finding that the taking lasted 

until January 7, 2014. As explained, it lasted only until 

November 8, 2013. We therefore affirm the Court of Federal Claims’ determination on liability, but we vacate its 

ultimate judgment as to compensation and interest. We 

remand the case to the court for a determination of the 

compensation and interest to which Appellants are entitled 

as a result of the taking of their property having ended on 

November 8, 2013, rather than on January 7, 2014.

AFFIRMED-IN-PART, VACATED-IN-PART, AND 

REMANDED

Costs

No costs.

Case: 21-2133 Document: 54 Page: 19 Filed: 09/28/2022