         In the United States Court of Federal Claims
                                  Nos. 14-6L, 14-38L
                               Filed: February 28, 2017
    * * * * * * * * * * * * * *             *
    TIMOTHY A. JAMES, et al.,               *
    WILHELMEAN BROWN, et al., 1             *
                                            *
                                            *        Cross-Motions for Partial
                       Plaintiffs,          *        Summary Judgment; Takings
    v.                                      *        Claim; Trails Act, 16 U.S.C.
                                            *        § 1241 et seq. (2012); S.C.
    UNITED STATES,                          *        Code § 57-3-220(A).
                                            *
                       Defendant.           *
                                            *
    * * * * * * * * * * * * * *             *


       Mark F. Hearne, II, Arent Fox, LLP, Clayton, MO, for the James plaintiffs. With him
are Lindsay S.C. Brinton and Meghan S. Largent, Arent Fox, LLP, Clayton, MO.

       Elizabeth G. McCulley, Stewart, Wald & McCulley LLC, Kansas City, MO, for the
Brown plaintiffs. With her is Thomas S. Stewart, Stewart, Wald & McCulley LLC, Kansas
City, MO.

      Jacqueline C. Brown, Trial Attorney, Environment & Natural Resources Section,
Department of Justice, Washington, D.C., for defendant. With her was Jeffrey H. Wood,
Acting Assistant Attorney General, Environment & Natural Resources Division,
Department of Justice, Washington, D.C.

                                       OPINION

HORN, J.

                                     FINDINGS OF FACT

       In these consolidated rails-to-trails cases, plaintiffs are landowners in South
Carolina who allege that they are entitled to receive just compensation under the Fifth
Amendment to the United States Constitution because the United States government

1These cases were originally captioned Rosalyn G. Burns, et al. v. United States, No.
14-38L, and Timothy A. James, et al. v. United States, No. 14-6L. After Ms. Burns
changed representation to become a plaintiff in Timothy A. James, et al. v. United States,
No. 14-6L, the court issued an Order changing the case caption of the Burns case to
Wilhelmean Brown, et al. v. United States, retaining the case number 14-38L.
effected takings of their reversionary property interests by operation of the National Trails
System Act, 16 U.S.C. § 1241, et seq. (2012) (the Trails Act). Plaintiffs own property
adjacent to the railroad line at issue in the above-captioned cases, which is operated by
the South Carolina Central Railroad Company, LLC (SC Central) and extends from
milepost 319.89 near Society Hill, South Carolina to milepost 332.68 near Cheraw, South
Carolina. Plaintiffs allege that the United States destroyed plaintiffs’ reversionary rights to
exclusive use and possession of their land when the United States Surface Transportation
Board (STB) issued a Notice of Interim Trail Use (NITU) related to the railroad line
adjacent to their property.

        Although plaintiffs’ claims relate to the same 12.8 mile railroad line in Chesterfield
and Darlington counties, South Carolina, plaintiffs initially filed their takings claims as two
separate cases in the United States Court of Federal Claims, which were identified as
Timothy A. James, et al. v. United States, No. 14-6L (Fed. Cl. Jan. 2, 2014), and Rosalyn
G. Burns, et al. v. United States, No. 14-38L (Fed. Cl. Jan. 16, 2014) (now captioned
Wilhelmean Brown, et al. v. United States), filed on January 2, 2014 and January 16,
2014, respectively. At the time the complaints were filed, plaintiffs in James were
represented by Mark F. Hearne II of Arent Fox, LLP, and plaintiffs in the then-captioned
Burns case were represented by Elizabeth A. McCulley of Baker Sterchi Cowden & Rice.2
As a result of both counsel’s solicitation activities at or around the time when both cases
were initiated, the separate complaints filed in Brown and James listed three of the same
plaintiffs: Rosalyn Gail Burns, Ruby Mae Jefferson, and Sarah Moody. On February 12,
2014, counsel for plaintiffs in Timothy A. James, et al. v. United States moved to intervene
in the matter of Rosalyn G. Burns, et al. v. United States. On February 27, 2014, the court
held a hearing with defendant and plaintiffs’ counsel in both cases to discuss the motion
to intervene and how the two cases would proceed moving forward. At the hearing,
counsel for plaintiffs in James and Burns, now Brown, agreed to consolidate the two
separate actions. On March 7, 2014, the court issued an Order consolidating Rosalyn G.
Burns, et al. v. United States, No. 14-38L (now captioned Wilhelmean Brown, et al. v.
United States), and Timothy A. James, et al. v. United States, No. 14-6L, for case
management purposes. Given some of the prior activity to engage clients, the court
ordered counsel for plaintiffs in both cases to submit to the court an updated chart
identifying the correct case and counsel for each of the named plaintiffs and the date of
client engagement.

        On May 29, 2014, counsel in James and Brown filed separate, amended
complaints clarifying the individual plaintiffs named in each of the two cases. In the Brown
case plaintiffs filed a complaint, a first amended complaint, and a second amended
complaint. The James plaintiffs filed a complaint and five amended complaints, with the
last of the five filed on April 8, 2015. These amended complaints identify each plaintiff

2 On April 16, 2015, Ms. McCulley filed a notice of change of law firm and address
indicating that she had changed to a new law firm, Stewart, Wald & McCulley LLC, and
was no longer associated with Baker Sterchi Cowden & Rice, LLC.




                                              2
and clarify that Rosalyn Gail Burns and Ruby Mae Jefferson, who were initially named as
plaintiffs in both James and Brown, are now plaintiffs in James, and Sarah Moody, who
also initially was named as a plaintiff in both James and Brown, is a plaintiff in Brown.
Therefore, after all of the amended complaints, the plaintiffs in James are as follows:
Timothy A. James and Lorraine G. James, Joseph Bell-Bay, J. Scott Bennett, Beatrice K.
Bradshaw, Keith Thomas Bradshaw, Mamie Broady, Miriam M. Burn, Rosalyn Gail Burns,
Howard Clifton Chapman, Carolyn C. Cole, Julia W. Covington, Cribb Family Limited
Partnership, Davis & Co., Inc., Margaret D. Davis, heirs of Mastin Fuller, James Flowers,
Jr., Debra Piner on behalf of the Walter F. Godfrey estate, Tomuel Goggins, Belton
Grooms, Robin Hepburn, James E. Hill, Daisy L. Hooks, Darren Hooks, Ruby Mae
Jefferson, J.L. Anderson Company, Frank M. Kelly, Amanda Knowlin, Amanda Walker on
behalf of Thurman D. Lewis and Geraldine Lewis, Eric Dewayne Loflin, Mary Floyd
McCormick, Jimmy Samuel McMillon and Glenda Hubbard McMillon, Mutli-Systems
Electrical Constructors, Inc., Julian Nolan, Robert P. Nolan, Pentecostal Assembly
Holiness Church, Flora Hooks Peyton, John Lewis Rivers III, Sarah Sellers, Robin
Hepburn on behalf of Victoria C. Smith, Sonoco Products Company, William A. Sylvia,
Town of Cheraw, Joann K. Warr, and Wing Fowler Properties, and counsel of record is
Mark F. Hearne, II, of Arent Fox LLP. The plaintiffs in Brown are as follows: Wilhelmean
Brown, Thomas Gary, Jr., Jesse W. James and Carlean Strong James, Sarah Moody,
Daisy M. Gainey, Polly C. Moore, Gaston Harris and Mary Harris, William S. Johnson, Sr.
and Mamie J. Johnson, Marian Jean Johnson, James P. McQueen and Annie B.
McQueen, Benny Hart Moore, Alexander Sturdivant and Daisy Sturdivant, Ransom
Wilson, Theodore A. Kirby, Dr. N.H. Beaver, L.E. Covington, Jr., C. Rodney Michael and
Tonya H. Michael, and James Douglas and Joy C. Myers, and counsel of record is
Elizabeth McCulley of Stewart, Wald & McCulley LLC.

      The 12.8 mile railroad line at issue in the above-captioned cases was initially
constructed by the Cheraw and Darlington Railroad Company pursuant to an Act of the
South Carolina legislature in 1849. See 1849 S.C. Acts 583. The Act provided, in pertinent
part:

      Be it enacted, by the Senate and House of Representatives now met and
      sitting in General Assembly and by the authority of the same, That for the
      purpose of establishing a communication by Rail Road from Cheraw to
      some point on the Wilmington and Manchester Rail Road in the District of
      Darlington, the formation of a corporate Company, is hereby authorized to
      be called the Cheraw and Darlington Rail Road Company, which . . . is
      hereby authorized to construct a Rail Road from the Town of Cheraw to
      some point on the Wilmington and Manchester Rail Road, in the District of
      Darlington, by a route to be determined by said Company after the same
      shall have been formed.

1849 S.C. Acts 583 (emphasis in original). The Act provided further that “the powers,
rights and privileges, granted by the Charter of the Wilmington and Manchester Rail Road
Company to that Company, shall be and are hereby granted to the Cheraw and Darlington
Rail Road Company.” 1849 S.C. Acts 584. The Charter to create the Wilmington and
Manchester Railroad Company was enacted by the state of South Carolina in 1846. See

                                            3
1846 S.C. Acts 381. The 1846 Act authorized the railroad company to acquire the property
on which to construct the railroad through eminent domain, contract, and the presumption
of grants of land. See 1846 S.C. Acts 386-89. The 1846 Act stated:

       That the said President and Directors, their officers, agents and servants,
       shall have full power and authority to enter upon all lands and tenements,
       through which they may desire to conduct their Rail Road, and to lay out the
       same according to their pleasure, so that the dwelling house, yard, garden
       or graveyard of no person be invaded, without his consent, and that they
       shall have power to enter in and lay out such contiguous lands as they may
       desire to occupy, as sites for deposites, toll houses, warehouses, engine
       sheds, workshops, water stations, and other buildings, for the necessary
       accommodation of their officers, agents and servants, their horses, mules,
       and other cattle, and for the protection of the property entrusted to their
       care.

1846 S.C. Acts 388. Defendant submits that the Cheraw and Darlington Railroad
Company acquired the property to construct the railroad by deed and by condemnation.
Plaintiffs contend that the railroad only acquired prescriptive easements for railroad
purposes because the railroad was constructed through the exercise of eminent domain
and without the underlying landowners’ permission or consent.

       On December 19, 2011, SC Central filed a Notice of Exemption with the STB
seeking authorization “to abandon approximately 12.8 miles of line in Chesterfield and
Darlington Counties, SC, between milepost 319.89 +/-, near Society Hill, SC, and milepost
332.48, in Cheraw, SC” pursuant to “the class exemption at 49 C.F.R. § 1152.50.” In the
Notice of Exemption, SC Central stated that “[t]here are no local shippers on the Line”
and that “[n]o local rail traffic” had moved over the line for the previous two years.
According to the Notice of Exemption, the “last traffic to move over the Line was in July
2009.” The Notice of Exemption also proposed February 8, 2012 as the abandonment
date. SC Central stated in the Notice of Exemption that it “believes that the property
proposed for abandonment is suitable for other public purposes.” The Notice of
Exemption was filed in the Federal Register on January 6, 2012, and stated that, in the
event SC Central did not file a notice of consummation of the abandonment by January
6, 2013, “the authority to abandon would automatically expire.”

        Thereafter, on January 12, 2012, the Town of Cheraw filed a request with the STB
for the “issuance of a Public Use Condition as well as an Interim Trail Use Condition rather
than an outright abandonment authorization for approximately 12.8 miles of line in
Chesterfield and Darlington Counties, South Carolina.” (emphasis removed). The Town
of Cheraw requested that the STB issue a NITU so that the Town of Cheraw could
negotiate with SC Central for acquisition of the line for use as a trail under the Trails Act.
SC Central agreed to negotiate interim trail use/rail banking with the Town of Cheraw for
the 12.8 mile railroad line between the Town of Cheraw and Society Hill. As a result of
the agreement between SC Central and the Town of Cheraw to negotiate the interim use
of the railroad corridor as a recreational trail and preservation for railbanking purposes,
the STB issued a NITU on February 3, 2012. The NITU permitted the Town of Cheraw

                                              4
“to negotiate with SCRF [SC Central] for interim trail use/rail banking of the ROW [right-
of-way].” The NITU directed that “[t]he parties may negotiate an agreement during the
180-day period,” and stated that “[i]f no agreement is reached within 180 days, SCRF
may fully abandon the line.” The NITU further states that “[u]se of the ROW for trail
purposes is subject to any future use of the property for restoration of railroad operations.”

       After several months, the negotiations between SC Central and the Town of
Cheraw ended without reaching an interim trail use agreement. As a result, the STB
issued an order vacating the February 3, 2012 NITU on June 20, 2012 because “the Town
no longer consents to continued negotiations and has indicated that it no longer is willing
to assume the responsibilities required of a trail sponsor under the Board’s interim trail
use regulations.” The STB’s June 20, 2012 decision explained that the Town of Cheraw
filed a document titled “Notice of Termination of Negotiations between the Town and
SCRF to acquire the ROW, and Notice of the Withdrawal of all Purchase Offers by Town
to SCRF, and . . . Town’s Request That STB Amend Its Prior Decision.” According to the
STB, after the February 3, 2012 NITU was vacated, as of August 2012, there were “no
legal or regulatory barriers” preventing SC Central from consummating the abandonment
of the railroad line, however, SC Central had to file a notice of consummation of the
abandonment by January 6, 2013 or the authority to abandon would automatically expire.
Instead of filing a notice of consummation of abandonment by January 6, 2013, however,
SC Central entered into negotiations with another entity, and the January 6, 2013
deadline lapsed.

        After the negotiations between SC Central and the Town of Cheraw ceased, SC
Central entered into trail use negotiations with the Friends of Cheraw to Society Hill
Railtrail (Friends of Cheraw). The Friends of Cheraw had not requested a NITU before
entering into negotiations with SC Central. In a February 14, 2013 letter to the STB,
approximately eight months after the February 3, 2012 NITU was vacated on June 20,
2012, SC Central requested that the STB extend the filing deadline for SC Central’s notice
of consummation of the railroad abandonment because “after interim trail use
negotiations between SCRF and the Town ended, SCRF began interim trail use/rail
banking discussions with the Friends of the Cheraw Trail” and an extension of the
consummation deadline was necessary for those negotiations to continue. In an April 2,
2013 decision, the STB granted, in part, SC Central’s request for an extension of time to
consummate the abandonment of the railroad line until June 2, 2013. On May 24, 2013,
the Friends of Cheraw requested that the STB issue a NITU for the 12.8 railroad line so
that the Friends of Cheraw and SC Central could continue the negotiations “to establish
interim trail use and rail banking under section 8(d) of the National Trails System Act, 16
U.S.C. 1247(d).” On May 28, 2013, SC Central submitted a letter to the STB supporting
the Friends of Cheraw’s request for the issuance of a NITU. On May 31, 2013, the STB
issued a second NITU permitting SC Central and the Friends of Cheraw to negotiate an
agreement regarding the 12.8 mile railroad line. The May 31, 2013 NITU stated that “[u]se
of the right-of-way for trail purposes is subject to possible future reconstruction and
reactivation of the right-of-way for rail service,” and that “[i]f no agreement is reached
within 180 days, SCRF may fully abandon the Line.” The May 31, 2013 NITU also
modified the notice of exemption previously published in the Federal Register on January
6, 2012 “to the extent necessary to implement interim trail use/rail banking . . . to permit

                                              5
the Cheraw Friends to negotiate with SCRF for trail use for the rail line . . .”. Based on
submissions from the parties, it appears that the STB extended the consummation of
abandonment deadline from November 27, 2013 to January 16, 2015, and the authority
to abandon the railroad expired on January 16, 2015, pursuant to the STB’s order, several
months before SC Central submitted its notice to discontinue service.

        SC Central and Friends of Cheraw engaged in negotiations for a trail use
agreement for more than two years before October 5, 2015, when the Friends of Cheraw
notified the STB that the organization withdrew from negotiations with SC Central. In its
letter to the STB, Friends of Cheraw stated: “Please be advised that Friends of Cheraw
to Society Hill Rail Trail has withdrawn from all negotiations with SCRF and therefore
terminates its interest in the pending NITU. The parties have mutually agreed that there
is no basis for reaching a definitive agreement.”

      After negotiations between SC Central and Friends of Cheraw ceased, and the
above-captioned cases had been initiated in this court, on November 19, 2015, SC
Central sent a letter to the STB stating that “in lieu of a full abandonment of the Line,” SC
Central decided “to consummate the discontinuance of service over the Line as of
November 19, 2015.” In the letter, SC Central stated that it would “be unable to enter an
agreement for interim trail use/rail banking.”

         Although the James and Brown plaintiffs filed separate complaints, the allegations
in both complaints arise from and revolve around the same facts. In both the James and
Brown complaints, plaintiffs allege that they are residents and landowners in Chesterfield
and Darlington counties in South Carolina who owned land adjacent to, and underlying,
the railroad line owned and operated by SC Central at all times pertinent to their takings
claims. The parties in both cases have stipulated that all plaintiffs owned fee title to
property adjacent to, and underlying, the railroad corridor on which the railroad operated
at the time of the alleged taking on February 3, 2012. The parties in both cases also have
stipulated that, for purposes of partial summary judgment, the railroad held an easement
for railroad purposes that laid across plaintiffs’ property.

       In their final amended complaints, James, filed on April 8, 2015, and Brown, filed
on May 30, 2014, plaintiffs allege that the United States effected a taking of their property
without just compensation in violation of the Fifth Amendment to the United States
Constitution when the STB issued a NITU on February 3, 2012. Plaintiffs allege that once
SC Central ceased operations on the railroad line, the railroad easement was abandoned
and plaintiffs, as the fee owners of the underlying property, regained their right to the
exclusive use and physical possession of their property. According to plaintiffs, but for
operation of the Trails Act, plaintiffs would have the exclusive right to physical ownership,
possession, and use of their property, free of any easement for recreational trail use or
future railroad use. Plaintiffs allege that the “actions of the United States have resulted in
the taking of Plaintiffs’ property, by reason of the direct physical taking of Plaintiffs’
property” and “damage to Plaintiffs’ remaining adjacent property which has suffered a
loss of privacy and other severance damages as a result of the proximity of the public on
the adjoining trail.” Plaintiffs seek to recover a monetary judgment representing the full
market value of their property taken by the United States on the date it was taken,

                                              6
February 3, 2012, as well as “severance damages,” “delay damages,” and costs and
attorneys’ fees.

       When the amended complaints were filed in this court, SC Central was engaged
in ongoing trail use negotiations with the Friends of Cheraw. While these negotiations
proceeded, the parties submitted periodic, joint status reports to the court indicating
whether SC Central and Friends of Cheraw had executed a final trail use agreement. In
the joint status reports submitted to the court, the parties also informed the court about
the progress of the appraisal process with respect to the properties at issue. On
December 7, 2015, the parties informed the court that negotiations between Friends of
Cheraw and SC Central had concluded without reaching a final trail use agreement, and
that, on November 19, 2015, SC Central had notified the STB that it intended to
discontinue service on the line.

       Both plaintiffs and defendant have moved for partial summary judgment on the
issue of liability pursuant to Rule 56 of the Rules of the United States Court of Federal
Claims (RCFC) (2016). Defendant filed a motion for partial summary judgment asserting
that neither a permanent nor a temporary physical taking had occurred as a result of the
NITU issued by the STB on February 3, 2012. In response, plaintiffs filed a cross motion
for partial summary judgment regarding defendant’s liability for taking plaintiffs’ right to
unencumbered title and exclusive possession and use of their land without just
compensation in violation of the Fifth Amendment to the United States Constitution.

                                      DISCUSSION

        The court considers the parties’ cross-motions for partial summary judgment.
RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language and
effect. Both rules provide that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” RCFC 56(a); Fed. R. Civ. P. 56(a) (2016); see also Young
v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015); Alabama v. North Carolina, 560 U.S.
330, 344 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);
Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016); Biery v. United States,
753 F.3d 1279, 1286 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd
v. United States, 713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d
1341, 1349 (Fed. Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed.
Cir. 2012); Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365,
1372 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear
Inc., 620 F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v.
United States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
2010), cert. denied, 5 U.S. 1004 (2011); 1st Home Liquidating Trust v. United States, 581
F.3d 1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375,
1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283
(Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden
v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.
Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.

                                             7
Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.
United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,
317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United
States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610
(2011).

        A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh’g denied, 361 U.S. 941 (1960).

       When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.

       In appropriate cases, summary judgment:

                                              8
       saves the expense and time of a full trial when it is unnecessary. When the
       material facts are adequately developed in the motion papers, a full trial is
       useless. “Useless” in this context means that more evidence than is already
       available in connection with the motion for summary judgment could not
       reasonably be expected to change the result.

Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng'g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).

         Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Group,
Inc. v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),
reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-
67; Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807. “However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247-48.


                                                9
       The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.
Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en
banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, 119 Fed. Cl. 751, 757-758 (2015). If the moving party
makes such a showing, the burden shifts to the nonmoving party to demonstrate that a
genuine dispute regarding a material fact exists by presenting evidence which establishes
the existence of an element essential to its case upon which it bears the burden of proof.
See Celotex Corp. v. Catrett, 477 U.S. at 322; see also Wavetronix LLC v. EIS Elec.
Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long Island Sav. Bank, FSB v.
United States, 503 F.3d at 1244; Florida Power & Light Co. v. United States, 375 F.3d
1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207
(Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed. Cir. 2000);
Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; Rasmuson v. United States,
109 Fed. Cl. 267, 271 (2013). However, “a non-movant is required to provide opposing
evidence under Rule 56(e) only if the moving party has provided evidence sufficient, if
unopposed, to prevail as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d
1359, 1369 (Fed. Cir. 2006).

        Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not
automatically follow that summary judgment should be granted to one side or the other.
See Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see
also Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968–69 (Fed. Cir. 2009);
B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001); Atl. Richfield
Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Chevron USA,
Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir. 2000), cert. denied, 532 U.S. 942
(2001); Bubble Room, Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact
that both the parties have moved for summary judgment does not mean that the court
must grant summary judgment to one party or the other.”), reh’g denied and en banc
suggestion declined (Fed. Cir. 1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1,
2 (1st Cir. 1998); Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997);
LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir. 1968),
cert. denied, 393 U.S. 1083 (1969); Rogers v. United States, 90 Fed. Cl. 418, 427 (2009),
subsequent determination, 93 Fed. Cl. 607 (2010); Consol. Coal Co. v. United States, 86
Fed. Cl. 384, 387 (2009), aff’d, 615 F.3d 1378, (Fed. Cir.), and reh’g and reh’g en banc
denied (Fed. Cir. 2010), cert. denied, 564 U.S. 1004 (2011); St. Christopher Assocs., L.P.
v. United States, 75 Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading

                                             10
& Bates Corp. v. United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate
each party’s motion on its own merits, taking care to draw all reasonable inferences
against the party whose motion is under consideration, or, otherwise stated, in favor of
the non-moving party. See Frankel v. United States, 842 F.3d at 1249; First Commerce
Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed.
Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338–39 (Fed. Cir.), reh’g and reh’g en
banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002); Oswalt v. United States,
85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v. United States, 71 Fed. Cl.
114, 119 (2006).

       Cross-motions are no more than a claim by each party that it alone is entitled to
summary judgment. The making of such inherently contradictory claims, however, does
not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich
Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d at 1148; Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d at 2;
Rogers v. United States, 90 Fed. Cl. at 427; Reading & Bates Corp. v. United States, 40
Fed. Cl. at 748.

      “Questions of law are particularly appropriate for summary judgment.” Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to
judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.”).

         In the above-captioned cases in which both parties have moved for partial
summary judgment, plaintiffs allege that defendant effected a taking under the Fifth
Amendment to the United States Constitution through operation of the Trails Act. The
Takings Clause of the Fifth Amendment to the United States Constitution provides in
pertinent part: “nor shall private property be taken for public use without just
compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is
to prevent the government from “‘forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode
Island, 533 U.S. 606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49
(1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528
(2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska
2009); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24, reh’g
denied, 439 U.S. 883 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005); E.
Enters. v. Apfel, 524 U.S. 498, 522 (1998); Rose Acre Farm, Inc. v. United States, 559
F.3d 1260, 1266 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2009), cert. denied, 559 U.S.
935 (2010); Janowsky v. United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res. Invs.,
Inc. v. United States, 85 Fed. Cl. 447, 469-70 (2009); Pumpelly v. Green Bay & Miss.
Canal Co., 80 U.S. (13 Wall.) 166, 179 (1871) (citing to principles which establish that
“private property may be taken for public uses when public necessity or utility requires”

                                            11
and that there is a “clear principle of natural equity that the individual whose property is
thus sacrificed must be indemnified”).

       “[A] claim for just compensation under the Takings Clause must be brought to the
Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker
Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520 (citing
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984)); see also Acceptance Ins.
Cos. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007); Morris v. United States, 392
F.3d 1372, 1375 (Fed. Cir. 2004) (“Absent an express statutory grant of jurisdiction to the
contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over
takings claims for amounts greater than $10,000.”). The United States Supreme Court
has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within
the jurisdiction of the [United States Court of Federal Claims] to hear and determine.”
Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12 (1990) (Preseault I) (quoting
United States v. Causby, 328 U.S. 256, 267 (1946)); see also Lion Raisins, Inc. v. United
States, 416 F.3d 1356, 1368 (Fed. Cir. 2005); Narramore v. United States, 960 F.2d 1048,
1052 (Fed. Cir. 1992); Hardy v. United States, 127 Fed. Cl. 1, 7 (2016); Perry v. United
States, 28 Fed. Cl. 82, 84 (1993).

        To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that
the government took a private property interest for public use without just compensation.
See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating
that the classic taking is one in which the government directly appropriates private
property for its own use); Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004),
cert. denied, 546 U.S. 811 (2005); Arbelaez v. United States, 94 Fed. Cl. 753, 762 (2010);
Gahagan v. United States, 72 Fed. Cl. 157, 162 (2006). “The issue of whether a taking
has occurred is a question of law based on factual underpinnings.” Huntleigh USA Corp.
v. United States, 525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S. 1045 (2008).
The government must be operating in its sovereign rather than in its proprietary capacity
when it initiates a taking. See St. Christopher Assocs., L.P. v. United States, 511 F.3d
1376, 1385 (Fed. Cir. 2008).

        The United States Court of Appeals for the Federal Circuit has established a two-
part test to determine whether government actions amount to a taking of private property
under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d
1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.
Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed. Cir.)
(citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied,
516 U.S. 808 (1995)), reh’g denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005).
A court first determines whether a plaintiff possesses a cognizable property interest in the
subject of the alleged takings. See Casitas Mun. Water Dist. v. United States, 708 F.3d
at 1348. Then, the court must determine whether the government action is a
“‘compensable taking of that property interest.’” Huntleigh USA Corp v. United States, 525
F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).

      To establish a taking, a plaintiff must have a legally cognizable property interest,
such as the right of possession, use, or disposal of the property. See Loretto v.

                                              12
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v.
Gen. Motors Corp., 323 U.S. 373 (1945)); Piszel v. United States, 833 F.3d 1366, 1374
(Fed. Cir. 2016); Rogers v. United States, 814 F.3d 1299, 1303 (Fed. Cir. 2015); Casitas
Mun. Water Dist. v. United States, 708 F.3d at 1348; CRV Enters., Inc. v. United States,
626 F.3d 1241, 1249 (Fed. Cir. 2010), cert. denied, 563 U.S. 989 (2011); Karuk Tribe of
Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.), reh’g denied and en banc suggestion
denied (Fed. Cir. 2000), cert. denied, 532 U.S. 941 (2001). “‘It is axiomatic that only
persons with a valid property interest at the time of the taking are entitled to
compensation.’” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting
Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001), cert. denied, 353 U.S. 1077
(2002) and citing Cavin v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992)).
Therefore, “[i]f the claimant fails to demonstrate the existence of a legally cognizable
property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United
States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1352
(Fed. Cir. 2003) and M & J Coal Co. v. United States, 47 F.3d at 1154). The court does
not address the second step “without first identifying a cognizable property interest.” Air
Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (citing Am. Pelagic
Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States, 291 F.3d 1334,
1340 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2002), cert. denied, 537 U.S. 1112
(2003)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005). Only if there is to be a
next step, “‘after having identified a valid property interest, the court must determine
whether the governmental action at issue amounted to a compensable taking of that
property interest.’” Huntleigh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am.
Pelagic Fishing Co. v. United States, 379 F.3d at 1372); see also Casitas Mun. Water
Dist. v. United States, 708 F.3d at 1348.

          The STB has authority to regulate most railroad lines in the United States. See 49
U.S.C. § 702 (2012). A railroad seeking to abandon any part of its railroad line must either
(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See
49 U.S.C. § 10903 (2012); see also 49 C.F.R. § 1152.50 (2017). “If the STB approves a
standard abandonment application or grants an exemption and the railroad ceases
operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and
state law reversionary property interests, if any, take effect.” Caldwell v. United States,
391 F.3d 1226, 1228-29 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6-8), reh’g en
banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005).

       “The Trails Act is designed to preserve railroad rights-of-way by converting them
into recreational trails.” Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir. 2012).
By operation of the Trails Act, the STB may issue a NITU, “suspending exemption
proceedings for 180 days to allow a third party to enter into an agreement with the railroad
to use the right-of-way as a recreational trail.” Barclay v. United States, 443 F.3d 1368,
1371 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006), cert. denied, 846 U.S. 1209
(2007). Section 8(d) of the Trails Act, codified at 16 U.S.C. § 1247(d), “allows a railroad
to negotiate with a state, municipal, or private group (‘the trail operator’) to assume
financial responsibility for operating the railroad right of way as a recreational trail.” See
Bright v. United States, 603 F.3d 1273, 1275 (Fed. Cir.) (citing Caldwell v. United States,
391 F.3d at 1229), reh’g and reh’g en banc denied (Fed. Cir. 2010). If the railroad and an

                                             13
authorized trail provider 3 reach an agreement, the NITU extends indefinitely, and the
corridor is railbanked, with interim trail use permitted. See 49 C.F.R. § 1152.29(d)(1)-(2)
(2016) (“The NITU will indicate that interim trail use is subject to future restoration of rail
service . . . . Additionally, the NITU will provide that if the sponsor intends to terminate
interim trail use on all or any portion of the right-of-way covered by the interim trail use
agreement, it must send the [STB] a copy of the NITU and request that it be vacated on
a specific date.”); see also Biery v. United States, 753 F.3d 1279, 1285 (Fed. Cir. 2014)
(“If the railroad and the [Surface Transportation] Board reach agreement, the land
underlying the railway may be transferred to a trail operator (e.g., state, political
subdivision, or qualified private organization) for interim trail use.” (citing Citizens Against
Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001))); Caldwell
v. United States, 57 Fed. Cl. 193, 194 (2003) (“The term railbanking refers to the
‘preservation of railroad corridor for future rail use,’ while making the corridor available for
other activities.” (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903
n.1 (8th Cir. 1997))), aff’d, 391 F.3d 1226 (Fed. Cir. 2004), reh’g en banc denied (Fed.
Cir.), cert. denied, 546 U.S. 826 (2005).

        When the NITU extends indefinitely and the corridor is railbanked, the STB retains
jurisdiction and abandonment of the railroad corridor is blocked. See 16 U.S.C. § 1247(d)
(“[I]n the case of interim use of any established railroad rights-of-way pursuant to
donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if
such interim use is subject to restoration or reconstruction for railroad purposes, such
interim use shall not be treated, for purposes of any law or rule of law, as an abandonment
of the use of such rights-of-way for railroad purposes.”); see also Rasmuson v. United
States, 807 F.3d 1343, 1344 (Fed. Cir. 2015) (“NITUs ‘preserve established railroad
rights-of-way for future reactivation of rail service’ and permit the railroad operator to
cease operation without legally abandoning any ‘rights-of-way for railroad purposes.’”
(quoting 16 U.S.C. § 1247(d))).

       As described by the United States Court of Appeals for the Federal Circuit:

       Thus, section 8(d) of the Trails Act prevents the operation of state laws that
       would otherwise come into effect upon abandonment-property laws that
       would “result in extinguishment of easements for railroad purposes and
       reversion of rights of way to abutting landowners.” Rail Abandonments-Use
       of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591,
       1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original
       easement granted to the railroad under state property law is not broad



3 The Trails Act indicates that a trail provider may be “a State, political subdivision, or
qualified private organization [that] is prepared to assume full responsibility for
management of such rights-of-way and for any legal liability arising out of such transfer
or use, and for the payment of any and all taxes that may be levied or assessed against
such rights-of-way.” 16 U.S.C. § 1247(d).


                                              14
       enough to encompass a recreational trail. See Preseault II, 100 F.3d at
       1552; see also Toews [v. United States], 376 F.3d at 1376.

Caldwell v. United States, 391 F.3d at 1229; see also Rogers v. United States, 814 F.3d
at 1303 (“As we have previously explained in other rails-to-trails cases, a taking, if any,
occurs when, pursuant to the Trails Act, the STB issues a Notice of Interim Trail Use
(‘NITU’) to suspend the abandonment of the rail line by a railroad and preserve it for future
active railroad use.” (citing Barclay v. United States, 443 F.3d at 1373)).

         The Federal Circuit has established a three-part inquiry to determine takings
liability in cases involving the conversion of railroad rights of way for recreational trail use
by means of 16 U.S.C. § 1247(d) of the Trails Act, as follows:

       (1) who owned the strips of land involved, specifically did the Railroad . . .
       acquire only easements, or did it obtain fee simple estates; (2) if the
       Railroad acquired only easements, were the terms of the easements limited
       to use for railroad purposes, or did they include future use as public
       recreational trails; and (3) even if the grants of the Railroad's easements
       were broad enough to encompass recreational trails, had these easements
       terminated prior to the alleged taking so that the property owners at that
       time held fee simples unencumbered by the easements.

Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (Preseault II). Phrased
differently, the Federal Circuit has also indicated:

       the determinative issues for takings liability are (1) who owns the strip of
       land involved, specifically, whether the railroad acquired only an easement
       or obtained a fee simple estate; (2) if the railroad acquired only an
       easement, were the terms of the easement limited to use for railroad
       purposes, or did they include future use as a public recreational trail (scope
       of the easement); and (3) even if the grant of the railroad's easement was
       broad enough to encompass a recreational trail, had this easement
       terminated prior to the alleged taking so that the property owner at the time
       held a fee simple unencumbered by the easement (abandonment of the
       easement).

Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009) (citing
Preseault II, 100 F.3d at 1533).

        According to the United States Court of Appeals for the Federal Circuit, “[i]t is
settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases when
government action destroys state-defined property rights by converting a railway
easement to a recreational trail, if trail use is outside the scope of the original railway
easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010), reh’g and reh’g
en banc denied, 646 F.3d 910 (Fed. Cir. 2011); see also Rogers v. United States, 814
F.3d at 1303; Ellamae Phillips Co. v. United States, 564 F.3d at 1373. “It is the law-created
right to own private property, recognized and enforced by the Constitution, legislation,


                                              15
and common law, that gives the owner an historically rooted expectation of
compensation.” Preseault II, 100 F.3d at 1540. The Federal Circuit in Preseault II also
indicated:

       [T]hat power includes the power to preempt state-created property rights,
       including the rights to possession of property when railroad easements
       terminate. As Justice O'Connor succinctly pointed out in her concurring
       opinion in Preseault I, however, having and exercising the power of
       preemption is one thing; being free of the Constitutional obligation to pay
       just compensation for the state-created rights thus destroyed is another.

Id. at 1537 (citing Preseault I, 494 U.S. at 22).

        To determine the nature of the property interest at issue, the court looks to state
law. See Rogers v. United States, 814 F.3d at 1305 (“We analyze the property rights of
the parties in a rails-to-trails case under the relevant state law.”). The United States Court
of Appeals for the Federal Circuit, interpreting a takings claim for a railroad right-of-way,
stated that, “state law generally creates the property interest in a railroad right-of-way.”
Barclay v. United States, 443 F.3d at 1374 (citing Preseault I, 494 U.S. at 8, 16). In a
footnote on the same page, the United States Court of Appeals for the Federal Circuit
repeated, “[i]n Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004), we reiterated that
state law controls the basic issue of whether trail use is beyond the scope of the right-of-
way.” Barclay v. United States, 443 F.3d at 1374 n.4. “The nature of the interest conveyed
is determined according to the law of the state where the conveyance occurred. ‘State
law creates and defines the scope of the reversionary or other real property interests
affected by the ICC’s [Interstate Commerce Commission] action pursuant to Section 208
of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’” Chevy
Chase Land Co. of Montgomery Cnty. v. United States, 37 Fed. Cl. 545, 565 (1997)
(quoting Preseault I, 494 U.S. at 20 (O’Connor, J., concurring) (citing Ruckelshaus v.
Monsanto Co., 467 U.S. at 1001)), aff’d, 230 F.3d 1375 (Fed. Cir. 1999), reh’g and reh’g
en banc denied (Fed. Cir.), cert. denied, 531 U.S. 957 (2000); see also Whispell Foreign
Cars, Inc. v. United States, 97 Fed. Cl. 324, 331 (“Whether an individual has a
compensable private property interest is determined by state law.”), amended after
recons. in part, 100 Fed. Cl. 529 (2011). Moreover, in Ruckelshaus v. Monsanto Co., 467
U.S. at 1001, the Supreme Court stated, “we are mindful of the basic axiom that
‘“[p]roperty interests . . . are not created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.”’” (quoting Webb's Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972))) (omission in original). In Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363 (1977), the United States Supreme Court stated that, “[u]nder
our federal system, property ownership is not governed by a general federal law, but
rather by the laws of the several States.” Id. at 378; see also Davies Warehouse Co. v.
Bowles, 321 U.S. 144, 155 (1944) (“The great body of law in this country which controls
acquisition, transmission, and transfer of property, and defines the rights of its owners in
relation to the state or to private parties, is found in the statutes and decisions of the
state.”).

                                             16
        As indicated above, defendant has moved for partial summary judgment in its
favor, and plaintiffs have moved for partial summary judgment in their favor as to the issue
of takings liability so that, if liability is found, the matter can proceed to the valuation stage
to determine the just compensation due to each plaintiff. According to plaintiffs, “the
federal government is constitutionally required to compensate these landowners for that
property the federal government took from these owners when the Surface Transportation
Board invoked §1247(d) of the National Trails System Act.” Plaintiffs argue that the NITU
permitted the land under the otherwise abandoned railroad easement to be used by the
public for recreation, and, as a result, the owners lost their state-law right to exclusive
possession and unencumbered title of their property. Alternatively, plaintiffs argue that
the NITU “converted an easement originally granted for operation of a railroad to a
conveyance for a completely different us [sic] – public recreation,” and “[u]nder South
Carolina law, converting an easement to a new use caused the easement to terminate
and allowed the landowners to regain unencumbered possession of its property.”
Plaintiffs assert that “[o]n this essential issue of liability, there is no genuine dispute about
the material facts. These landowners are entitled to judgment as a matter of law.”
Defendant asserts, however, that it is entitled to partial summary judgment because
neither a permanent nor a temporary physical taking occurred as a result of the NITU
issued by the STB on February 3, 2012. Defendant argues that there has been “no taking
of Plaintiffs’ property rights by operation of federal law” because the scope of the railroad’s
easements was not exceeded and, furthermore, the railroad never abandoned its
easements. Defendant argues that during the period in which the railroad negotiated with
the trail groups, there were no trail use easements imposed on plaintiffs’ property, and at
the end of the NITU period, SC Central elected to maintain its easements.

       As a threshold matter, the above-captioned cases may be distinct from a number
of other rails-to-trails cases, because these cases implicate a specific South Carolina
statute relevant to plaintiffs’ reversionary property interests. The South Carolina statute
states, in pertinent part:

       A railroad right-of-way corridor held for railroad right-of-way preservation
       may be used for a public purpose compatible with preservation of the
       corridor for future transportation use on an interim basis until the corridor is
       used for rail transport. A railroad corridor held for railroad right-of-way
       preservation is not abandoned for the purpose of any law.

S.C. Code § 57-3-220(A) (2010). (emphasis added). This statute was enacted prior to the
first NITU issued in this case on February 3, 2012, and the second NITU issued on May
31, 2013. 4 As stated above, on December 19, 2011, SC Central filed a Notice of

4 In issuing the second NITU on May 31, 2013, the STB modified the original notice issued
on June 6, 2012, exempting abandonment of the railroad line to the extent necessary to
implement interim trail use/rail banking in order to permit Friends of Cheraw to negotiate
with SC Central for trail use of the rail line. Notwithstanding the gap in time between the
issuance of the first and second NITUs in this case, the court’s takings analysis focuses
on the issuance of the first NITU as the second NITU became an extension of the first.
See Barclay v. United States, 443 F.3d at 1375 (explaining that “the series of STB NITU

                                               17
Exemption with the STB seeking authorization “to abandon approximately 12.8 miles of
[railroad] line in Chesterfield and Darlington Counties, SC, between milepost 319.89 +/-,
near Society Hill, SC, and milepost 332.48, in Cheraw, SC” pursuant to “the class
exemption at 49 C.F.R. § 1152.50.” In the Notice of Exemption, SC Central stated that
“[t]here are no local shippers on the Line” and that “[n]o local rail traffic” had moved over
the line for the previous two years. Thereafter, the Town of Cheraw requested the
“issuance of a Public Use Condition as well as an Interim Trail Use Condition rather than
an outright abandonment authorization for approximately 12.8 miles of line in Chesterfield
and Darlington Counties, South Carolina,” and SC Central agreed to negotiate interim
trail use/rail banking with the Town of Cheraw for the 12.8 mile railroad line between the
Town of Cheraw and Society Hill. As a result of the agreement between SC Central and
the Town of Cheraw to negotiate the preservation and interim use of the railroad corridor
as a recreational trail, the STB issued a NITU on February 3, 2012 stating, “[t]he parties
may negotiate an agreement during the 180-day period,” and stating that “[i]f no
agreement is reached within 180 days, SCRF may fully abandon the line.” These facts
indicate that, although SC Central, initially, may have sought to abandon the railroad
corridor, SC Central changed course and agreed to negotiate transferring the railroad for
preservation purposes and engaged in negotiations for three years with trail use groups
in an effort to reach a rail preservation and trail use agreement. As indicated above, South
Carolina statute § 57-3-220(A) states that a railroad corridor “held for railroad right-of-way
preservation” may not be considered abandoned. It appears, therefore, that under South
Carolina law, when a railroad demonstrates an intent to enter into an agreement designed
to preserve a railroad right-of-way, the South Carolina statute precludes a finding of
abandonment. In the above-captioned cases, SC Central did not reach a railbanking or
trail use agreement with a third party, however that is not dispositive. SC Central’s actions
to negotiate a trail use agreement are sufficient to invoke § 57-3-220(A). As a result,
plaintiffs’ argument that the railroad was abandoned and that the NITU prevented
plaintiffs’ reversionary interests from springing into effect at some point is not persuasive.

       Although the court may not consider the railroad’s easements abandoned because
of SC Central’s efforts to enter a railroad preservation agreement, the court still may find
that the NITU effected a temporary taking if the NITU authorized uses of the railroad
easement that went beyond the scope of the easement. In these cases, the parties have
stipulated, for the purposes of partial summary judgment, that the railroad held easements
limited to railroad purposes when the NITU was issued. See Ladd v. United States, 630
F.3d at 1019 (“It is settled law that a Fifth Amendment taking occurs in Rails-to-Trails
cases when government action destroys state-defined property rights by converting a
railway easement to a recreational trail, if trail use is outside the scope of the original
railway easement.”); see also Rogers v. United States, 107 Fed. Cl. 387, 393 (2012)
(“[T]he taking occurs when the government, pursuant to the Trails Act, creates a new



orders must be viewed as part of a single and continuous government action”); see also
Biery v. United States, 99 Fed. Cl. 565, 580-81 (2011) (“The second NITU was in effect
a modification and extension of the original NITU.”).


                                             18
easement for a recreational use over land that had been encumbered by an easement
limited to railroad purposes.”).

        To determine in these cases whether takings have occurred, the court applies the
standard for takings liability set forth by the United States Court of Appeals for the Federal
Circuit in Preseault II, 100 F.3d at 1525:

       (1) who owned the strips of land involved, specifically did the Railroad . . .
       acquire only easements, or did it obtain fee simple estates; (2) if the
       Railroad acquired only easements, were the terms of the easements limited
       to use for railroad purposes, or did they include future use as public
       recreational trails; and (3) even if the grants of the Railroad's easements
       were broad enough to encompass recreational trails, had these easements
       terminated prior to the alleged taking so that the property owners at that
       time held fee simples unencumbered by the easements.

Id. The parties have stipulated, for the purposes of partial summary judgment, that
plaintiffs owned property adjacent to, and underlying, the railroad line at issue and that
SC Central acquired only easements for railroad purposes that lay across plaintiffs’ land.
Thus, the first prong of the Preseault II analysis is met.

       Regarding the second prong of the Preseault II analysis: “were the terms of the
easement limited to use for railroad purposes, or did they include future use as public
recreational trails,” Preseault II, 100 F.3d at 1542-43, the United States Court of Appeals
for the Federal Circuit stated in Toews v. United States, 376 F.3d at 1376, that “[i]t is
elementary law that if the Government uses (or authorizes the use of . . .) an existing
railroad easement for purposes and in a manner not allowed by the terms of the grant of
the easement, the Government has taken the landowner’s property for the new use.” Id.
The parties do not dispute, for purposes of summary judgment, that the scope of the
railroad’s easements was limited to railroad purposes. The parties disagree in this case,
however, as to whether the scope of the easements held by the railroad was exceeded
by operation of the Trails Act. Because the railroad corridor at issue in the above-
captioned cases was created pursuant an act of the South Carolinian legislature, the court
looks to the laws of South Carolina to determine issues relating to the scope of the
easements. See id. at 1375; see also Harley-White v. United States, 129 Fed. Cl. 548,
555 (2016).

        Defendant submits that the scope of the railroad’s easements was not exceeded
because (1) “while the NITU was in effect . . . no trail use agreement was ever reached,
and there was no transfer of SC Central’s easements to any third party under the Trails
Act,” and (2) preservation of a railroad corridor is a railroad purpose consistent with the
terms of the railroad’s easements under South Carolina law. To support its position that
the scope of the railroad’s easements was not exceeded, defendant focuses on whether
the railroad’s easements ever were used for non-railroad purposes by operation of the
Trails Act. In contrast, in arguing that the NITU effected a taking of plaintiffs’ property
interests, plaintiffs focus on whether the NITU authorized uses of the railroad’s easements
that went beyond railroad purposes. Plaintiffs argue that because the railroad held

                                             19
easements for railroad purposes, “the STB’s issuance of a NITU invocating §1247(d) to
forestall state-law termination of the easement and authorize new and difference uses of
the land is a compensable taking for which the Fifth Amendment compels the government
to justly compensate the owner.” Plaintiffs argue that, because defendant admits that SC
Central only had a limited easement for railroad purposes, “[t]his settles the government’s
liability” for the taking of plaintiffs’ property interests.

        Defendant’s argument that a taking has not occurred because no trail use
agreement with a third party was reached and there was no transfer of the easements to
a trail group is not persuasive in light of decisions by the United States Court of Appeals
for the Federal Circuit. The Federal Circuit has found that, under the second part of the
Preseault II test, the United States may be held liable under the Fifth Amendment when
the use of a railroad easement allowed by operation of the Trails Act exceeds the scope
of the easements held by the railroad. As explained above, in Preseault II, the Federal
Circuit established that one of the three “determinative issues” to consider in analyzing a
takings claim is “if the Railroad acquired only easements, were the terms of the
easements limited to use for railroad purposes, or did they include future use as public
recreational trails.” Preseault II, 100 F.3d at 1533. The Federal Circuit explained, “if the
Government’s use of the land for a recreational trail is not within the scope of the
easements, then that use would constitute an unauthorized invasion of the land.” Id.
Similarly, the Federal Circuit held in Caldwell that “[a] Fifth Amendment taking occurs if
the original easement granted to the railroad under state property law is not broad enough
to encompass a recreational trail.” Caldwell v. United States, 391 F.3d at 1229. Citing
these Federal Circuit decisions, judges of the United States Court of Federal Claims have
explained that the second prong of the Preseault II analysis is to determine whether the
issuance of the NITU, authorizing the conversion of a railroad right-of-way to a public
recreational trail, is beyond the scope of the relevant railroad’s easement. See Harley-
White v. United States, 129 Fed. Cl. at 555 (quoting Ladd v. United States, 630 F.3d at
1019) (“A taking occurs in a rails-to-trails case ‘when government action destroys state-
defined property rights by converting a railway easement to a recreational trail, if trail use
is outside the scope of the original railway easement.’”). In Barlow v. United States, 123
Fed. Cl. 186, 201 (2015), the court explained that, after determining that the railroad held
an easement, “the Court next turns to the question of whether the scope of the easement
for those parcels has been exceeded by the issuance of the NITU.” Id.; see also Geneva
Rock Products, Inc. v. United States, 107 Fed. Cl. 166, 171 (2012) (“If the easement
granted under the 1875 Act was limited to railroad purposes and its scope does not
include recreational trail use upon issuance of a NITU, then a taking will be established.”);
Thomas v. United States, 106 Fed. Cl. 467, 476 (2012) (“If the railroad receives only a
railroad purpose easement and if the recreational trail use and railbanking authorized by
the NITU exceed the scope of that easement and thereby prevent expiration of the
easement and reversionary interests from vesting in the fee owners, then a Fifth
Amendment taking has occurred.”); Rhutasel v. United States, 105 Fed. Cl. 220, 227
(2012) (holding that “the conversion to a trail is completely unrelated to the operation of
a railway; therefore, trail use falls outside the scope of the right-of-way deeds and
condemned easements”).



                                             20
        As these cases explain, the focus of the second inquiry of the Preseault II analysis
is whether the terms of the easement at issue include public recreational trail use of the
right-of-way, and not, as defendant asserts, whether a trail use agreement actually was
reached. Therefore, if the STB issues a NITU that authorizes recreational trail use of
railroad easements, and trail use is not contemplated in the terms of the railroad
easements, the government has effected a taking. See Macy Elevator, Inc. v. United
States, 97 Fed. Cl. at 718 (“[I]f the railroad did not receive a fee interest but only a railway
easement and if the recreational trail use authorized by the NITU exceeds the scope of
that railway easement, than a taking has occurred.”). In Toews v. United States, 376 F.3d
at 1376, the Federal Circuit explained that “[i]t is elementary law that if the Government
uses . . . or authorizes the use of . . . an existing railroad easement for purposes and in a
manner not allowed by the terms of the grant of the easement, the Government has taken
the landowner’s property for the new use.” Id. (emphasis added).

        Notwithstanding defendant’s argument that no trail use easement was imposed
because no recreational trail use agreement was reached, the Federal Circuit has
previously concluded that whether a trail use agreement is reached or a recreational trail
is established is “irrelevant” to determining whether a taking has occurred. See Ladd v.
United States, 630 F.3d at 1024. Defendant’s argument that the railroad’s easements
were not exceeded because no trail use agreement was reached is similar to the
argument the government pursued in Ladd v. United States, 630 F.3d at 1024. In Ladd,
the government argued that “a Rails-to-Trails takings claim requires an actual conversion
of a railroad to a new use that is outside the scope of the initial conveyance” and that “the
NITU does not by itself result in such a conversion.” Id. at 1023. Similar to the above-
captioned cases currently before this court, in Ladd no trail use agreement was
established at the time the complaint was filed. In its brief before the court, defendant
“acknowledges that the Court in Ladd held that finalization of a trail use is not a precursor
to a taking claim – whether it be permanent or temporary.” Defendant asserts, however,
that the above-captioned cases are distinguishable from Ladd because, in Ladd, the
Federal Circuit did not consider a situation in which the railroad maintained its easement
in perpetuity. Although the facts in Ladd are not identical to those in the above-captioned
cases, in discussing rails-to-trails takings claims generally, the Federal Circuit in Ladd
explained that because “a takings claim accrues on the date that a NITU issues, events
arising after that date—including entering into a trail use agreement and converting the
railway to a recreational trail—cannot be necessary elements of the claim.” Id.; see also
Carolina Plating Works, Inc. v. United States, 102 Fed. Cl. at 559 (explaining that “it is the
issuance of the NITU, and not some later or earlier action in the nature of physical
possession, that is the governmental act which blocks the state reversion property interest
and thereby effectuates the takings”). The Federal Circuit in Ladd concluded that, when
determining whether a taking has occurred, “it is irrelevant that no trail use agreement
has been reached and that no recreational trail has been established.” Ladd v. United
States, 630 F.3d at 1024. In Ladd, the Federal Circuit indicated that whether a trail use
agreement is reached may be a consideration in determining the duration of a taking, but
not the underlying takings liability. Id. at 1025; see also Memmer v. United States, 122
Fed. Cl. 350, 365-66 (2015) (“The Federal Circuit’s holdings are unambiguous: events
arising after the Board issues the NITU have no effect on the existence of a Fifth
Amendment taking, but may affect the nature of the taking to be compensated.”). The

                                              21
Federal Circuit’s decision in Ladd is controlling here. Accordingly, defendant’s argument
that the scope of the railroad’s easements was not exceeded because, after the NITU
was issued, no trail use agreement was reached, fails and the court need not wait for the
execution of a trail use agreement before finding that a taking has occurred. That a trail
use agreement may never be reached does not change the court’s conclusion, which is
consistent with Ladd.

          In opposition to plaintiffs’ takings claims in this court, defendant does not argue
that recreational trail use is within the scope of the railroad’s easements. Defendant also
does not contend that the NITU did not authorize trail use. Nor does defendant challenge
plaintiffs’ argument that “[p]ublic recreation is not a railroad purpose.” As stated above, in
its cross motion for partial summary judgment, defendant states that “the United States
does not contest for the purposes of this motion that SC Central’s easements were limited
to railroad purposes.” According to the United States Court of Appeals for the Federal
Circuit “it appears beyond cavil that use of these [railroad] easements for a recreational
trail . . . is not the same use made by a railroad, involving tracks, depots, and the running
of trains.” Toews v. United States, 376 F.3d at 1376; see also The Ellamae Phillips Co. v.
United States, 99 Fed. Cl. 483, 487 (2011) (explaining that “[t]here is clear consensus
that recreational trail use is fundamentally different in nature than railroad use”). Under
existing Federal Circuit guidance, given that defendant has stipulated that the railroad’s
easements were limited to railroad purposes and that defendant does not argue that
recreational trail use is a railroad purpose within the scope of the railroad’s easements,
the issuance of the NITU in these cases, which authorized recreational trail use of the
railroad easements, would normally be found to exceed the scope of the railroad’s
easements. When “the NITU imposes both interim trail use and railbanking, the imposition
of a recreational trail on the easement is sufficient to constitute a taking.” Capreal, Inc. v.
United States, 99 Fed. Cl. 133, 143 (2011); see also Ladd v. United States, 630 F.3d at
1019.

        Nonetheless, in the above-captioned cases, defendant continues to assert that the
scope of the railroad’s easements was not exceeded because the maximum easement
imposed by the NITU was a railbanking easement. Defendant tries to explain that,
“railbanking is deemed a railroad purpose under South Carolina law,” and the easements
burdening plaintiffs’ properties were limited to railroad purposes. Therefore, according to
defendant, the imposition of a railbanking easement on plaintiffs’ South Carolina
properties did not exceed the easements already in place. To support its position,
defendant points to South Carolina statute § 57-3-220(A), discussed above, and argues
that the statute provides that, for the easements at issue, “railbanking is a railroad
purpose,” and that this statute “is what distinguishes it from the other cases.” In response,
plaintiffs argue that the South Carolina statute “cannot redefine property interests
established and defined more than a century ago by the railroad’s condemnation of this
right-of-way.”

      At issue is whether railbanking is within the scope of the railroad’s easements. The
South Carolina statute § 57-3-220(A), to which defendant refers, states:



                                              22
       A railroad right-of-way corridor held for railroad right-of-way preservation
       may be used for a public purpose compatible with preservation of the
       corridor for future transportation use on an interim basis until the corridor is
       used for rail transport. A railroad corridor held for railroad right-of-way
       preservation is not abandoned for the purpose of any law.

S.C. Code § 57-3-220(A). This language is similar to the language in 16 U.S.C. § 1247(d)
of the Trails Act, which states:

       [I]n the case of interim use of any established railroad rights-of-way
       pursuant to donation, transfer, lease, sale, or otherwise . . . if such interim
       use is subject to restoration or reconstruction for railroad purposes, such
       interim use shall not be treated, for purposes of any law or rule of law, as
       an abandonment of the use of such rights-of-way for railroad purposes.

16 U.S.C. § 1247(d). The language contained in 16 U.S.C. § 1247(d), authorizing the
preservation of railroad rights-of-way, which is similar to the language in South Carolina
statute § 57-3-220(A), has been described by judges of the United States Court of
Appeals for the Federal Circuit and the United States Court of Federal Claims as
“railbanking.” See Preseault II, 100 F.3d at 1555; Caldwell v. United States, 57 Fed. Cl.
at 194; Macy Elevator, Inc. v. United States, 97 Fed. Cl. at 711 (“[T]he Trails Act allows a
railroad to relinquish responsibility for a rail line by transferring the corridor to an entity
that will use it as a recreational trail. Although the corridor is not used as a railroad during
the period of interim trail use, it remains intact for potential future use for rail service. This
process is called ‘railbanking.’”). Railbanking language, such as that contained in the
Trails Act and the South Carolina statute, serves to insulate from abandonment a railroad
easement that is used for a public purpose and “held for railroad right-of-way
preservation.” See 16 U.S.C. § 1247(d); S.C. Code § 57-3-220(A); see also Ladd v. United
States, 630 F.3d at 1020 (explaining that the NITU is the only government action in the
railbanking process that can operate to prevent abandonment of the railroad easement);
Ybanez v. United States, 98 Fed. Cl. 659, 663 (2011) (explaining that issuance of the
NITU by operation of the Trails Act blocks abandonment of a railroad right-of-way
easement). While railbanking statutes may block abandonment of a railroad right-of-way
in certain prescribed circumstances, abandonment of a railroad easement is separate and
distinguishable from exceeding the scope of a railroad easement. See Geneva Rock
Prods., Inc. v. United States, 107 Fed. Cl. at 172 (holding that “the existence of rail-
banking, even if it may be sufficient to rescue the easement from abandonment through
operation of state law, is not enough to insulate the government from a takings claim”);
Capreal, Inc. v. United States, 99 Fed. Cl. at 146. The Federal Circuit’s analysis for
determining a taking in rails-to-trails cases, as set forth in Preseault II, distinguishes
between examining the scope of the easement and determining if the easement was
abandoned. See Preseault II, 100 F.3d at 1555. These questions are put forth separately
in the second and third prongs of the Preseault II analysis. See id. Thus, while defendant
can rely on the South Carolina statute, which is quoted above, to argue that the railroad’s
easements were not abandoned, the statute is not dispositive to determine whether the
scope of the railroad’s easements was exceeded. In other words, the South Carolina


                                               23
statute may allow railbanking and block abandonment in these cases, but railbanking may
still exceed the scope of the railroad’s easements for railroad purposes. 5

       As discussed above, the scope of a railroad easement is a matter of state law
when the easement was created pursuant to state law, as it was in the above-captioned
cases. See Toews v. United States, 376 F.3d at 1375; see also Harley-White v. United
States, 129 Fed. Cl. at 555. Neither plaintiffs nor defendant cite to any cases arising in
South Carolina state courts which interpret S.C. Code § 57-3-220(A), and there do not
appear to be any South Carolina state court decisions on point which have found that
railbanking is a railroad purpose within the scope of a railroad purposes easement under
S.C. Code § 57-3-220(A). Nor has a judge of this court or the Court of Appeals for the
Federal Circuit interpreted the South Carolina statute as it relates to a rails-to-trails
decision. In other contexts, however, the Court of Appeals of South Carolina has
addressed railroad rights-of-way which is useful to inform this court’s consideration of the
current cases. In Eldridge v. City of Greenwood, 388 S.E.2d 247, 249 (S.C. Ct. App. 1989)
(Eldridge I), the Court of Appeals of South Carolina considered whether the removal of
railroad tracks and the conveyance of the railroad right-of-way to local municipalities for
the construction of a public road constituted an abandonment of the use of the right-of-
way for railroad purposes. Id. In its decision, the court reviewed the statutory authority
that created the railroad company, the Greenville and Columbia Railroad Company, and
provided for its powers to obtain and hold property, codified at 1845 S.C. Act 227-28. See

5 The court notes that in the above-captioned cases, trail use negotiations between SC
Central and the Town of Cheraw and between SC Central and the Friends of Cheraw
failed. Had the negotiations been successful and the NITU process been completed, the
South Carolina statute could have been in conflict with the NITU process and raised the
specter of preemption. As discussed above, S.C. Code § 57-3-220(A) states, in part, “[a]
railroad corridor held for railroad right-of-way preservation is not abandoned for the
purpose of any law.” Id. This, however, appears inconsistent with the railbanking process
under the Trails Act, in which the railroad files an application to abandon or discontinue
service with the STB, 49 U.S.C. § 10903 (2012), or seeks a Notice of Exemption from
that process pursuant to 49 U.S.C. § 10502, as SC Central did in the above-captioned
cases. As indicated by Congress in the Trails Act, at 16 U.S.C. § 1241, titled,
“Congressional statement of policy and declaration of purpose,” “In order to provide
for the ever-increasing outdoor recreation needs of an expanding population and in order
to promote the preservation of, public access to, travel within, and enjoyment and
appreciation of the open-air, outdoor areas and historic resources of the Nation, trails
should be established (i) primarily, near the urban areas of the Nation, and (ii) secondarily,
within scenic areas and along historic travel routes of the Nation, which are often more
remotely located.” 16 U.S.C. § 1241(a) (emphasis in original). To the extent the sweeping
language of the South Carolina statute § 57-3-220(A) would conflict with the purpose of
the Trails Act and the process for abandonment identified by the STB in Title 49 of the
United States Code, preemption might be an issue under different circumstances than
those presented in the current cases.




                                             24
id. The court explained that “[o]wnership of a right-of-way by a railroad company carries
with it the right to use the property within the right-of-way for any purpose which furthers
the business of the railroad,” and that “[w]hen land is taken for railroad purposes, the
railroad company acquires ‘not merely the right to construct and maintain a railroad in
accordance with the original plans, but it is the easement to make any use of the land for
railroad purposes.’” Id. In Eldridge I, the court concluded that “the operation of public
roads . . . within the disputed right-of-way” did not appear to be “incident to the
construction, maintenance, and operation of [the] railroad,” and that the lower court had
erred in holding that removing the railroad tracks and conveying the right-of-way so that
it could be used for a public road did not constitute abandonment of the right-of-way.
Eldridge I, 388 S.E.2d at 250-51. Nearly ten years after the decision in Eldridge I, the
Court of Appeals of South Carolina in a second Eldridge case held that the use of the
railroad’s right-of-way for public highway purposes was inconsistent with the railroad’s
easement. Eldridge v. City of Greenwood, 503 S.E.2d 191, 202 (S.C. Ct. App. 1998)
(Eldridge II). The court held that when a “railroad derived its interest to the rights of way
pursuant to a statutory provision,” the statutory language should be given its “plain and
ordinary meaning without resorting to subtle or forced construction to limit or expand a
statute’s operation.” Eldridge II, 503 S.E.2d at 202. The South Carolina Court of Appeals
stated that “[i]t is also a general rule of construction that statutory grants of eminent
domain should be strictly construed.” Id.

        As in Eldridge I and Eldridge II, in the above-captioned James and Brown cases,
the Cheraw and Darlington Railroad Company derived its power to construct the railroad
line at issue from statute, specifically the 1849 Act to Charter the Cheraw and Darlington
Railroad (and the 1846 Act to Charter the Wilmington and Manchester Railroad). The
1849 Act granted the Cheraw and Darlington Railroad Company an interest in the railroad
line as long as it was used “only for the purposes of the said road, and no longer.” The
1849 Act referenced the 1846 Act, which read in pertinent part:

       That the said President and Directors, their officers, agents and servants,
       shall have full power and authority to enter upon all lands and tenements,
       through which they may desire to conduct their Rail Road, and to lay out the
       same according to their pleasure, so that the dwelling house, yard, garden
       or graveyard of no person be invaded, without his consent, and that they
       shall have power to enter in and lay out such contiguous lands as they may
       desire to occupy, as sites for deposites, toll houses, warehouses, engine
       sheds, workshops, water stations, and other buildings, for the necessary
       accommodation of their officers, agents and servants, their horses, mules,
       and other cattle, and for the protection of the property entrusted to their
       care.

                                            ...

       In the absence of any contract or contracts with the said company, in
       relation to land through which the said road may pass, signed by the owner
       thereof, or by his agent, or any claimant or person in possession thereof,
       which may be confirmed by the owner therof, it shall be presumed that the

                                             25
       land upon which the road may be constructed, together with a space of
       sixty-five feet on each side of the centre of the said road, has been granted
       to the company by the owner or owners therof, and the said company shall
       have good right and title thereto, and shall have, hold, and enjoy the same,
       as long as the same may be used only for the purposes of the said road,
       and no longer. . .

1846 S.C. Acts 388. This statutory language indicates that the Cheraw and Darlington
Railroad Company had authority to enter onto land for the purposes of the railroad and
for constructing various types of specifically identified buildings, all of which were to be
related to operating the railroad. The statute does not contemplate preservation of a
railroad corridor for other future uses, or railbanking. Moreover, in this Circuit, judges have
declined to find that railbanking is a railroad purpose. See, e.g., Preseault II, 100 F.3d at
1554 (Rader, J., concurring) (rejecting the railbanking argument as a “vague notion,”
incapable of overriding the present use of the property as a recreational trail); Capreal,
Inc. v. United States, 99 Fed. Cl. at 146 (Interpreting Massachusetts law in which the
court stated, “that railbanking is too hypothetical and unlikely to serve as a railroad
purpose.”); Nordhus Family Trust v. United States, 98 Fed. Cl. 331, 339 (2011)
(Interpreting Kansas law, the court stated, “[i]n the present case, there is no evidence of
any plan to reactivate the rail service—simply a speculative assertion by Defendant that
some resumed rail service could occur in the future. The transfer of the easement to
entities completely unconnected with rail service, and the removal of all rail tracks on the
corridor, lead the Court to conclude that any future rail use simply is unrealistic.”); Macy
Elevator, Inc. v. United States, 97 Fed. Cl. at 730 (Interpreting Indiana law and relying on
Preseault II to deem railbanking “irrelevant to the question of whether a taking has
occurred.”); Rogers v. United States, 90 Fed. Cl. at 432 (Interpreting Florida law and
indicating, “[h]ere, as in Preseault II, the use of the right-of-way as a public trail while
preserving the right-of-way for future railroad activity was not something contemplated by
the original parties to the Honore conveyance back in 1910.”); Glosemeyer v. United
States, 45 Fed. Cl. 771, 781 (2000) (Interpreting Missouri law, the court stated, “[i]n sum,
neither component of railbanking-the preservation of the rail line for future use nor the
‘interim’ use of the easement as a recreation trail-constitutes a railroad purpose under
Missouri law.”). Therefore, this court strictly construes the language in the statutory grant
included in the 1849 Act to charter the Cheraw and Darlington Railroad, and the 1846
Act, so as to exclude railbanking as a railroad purpose under the easements. The
guidance of the Court of Appeals of South Carolina in Eldridge I and Eldridge II, although
not in direct parallel to the cases currently before the court, reinforce this court’s
conclusion. Therefore, the court concludes that the uses authorized by the NITU
exceeded the scope of the railroad’s easements.

       Under South Carolina law, an easement for railroad purposes generally will be
extinguished when the easement is converted for non-railroad use. See Eldridge II, 503
S.Ed.2d at 201-203 (disagreeing with appellants’ argument that conversion from railroad
use to public roadway use does not extinguish an easement). The Supreme Court of
South Carolina also has specifically held that “an easement no longer used for its stated
purposes has been abandoned and therefore extinguished.” Faulkenberry v. Norfolk
Southern Ry. Co., 563 S.E.2d 644, 646, n.3 (S.C. S.C. 2002). For example, in Immanuel

                                              26
Baptist Church of N. Augusta v. Barnes, 264 S.E.2d 142, 144-45 (S.C. S.C. 1980), the
Supreme Court of South Carolina explained that “an owner of an easement may
relinquish that easement . . . if there is clear evidence of a purpose inconsistent with the
existence of the easement . . . .” Id. In Saluda Motor Lines, Inc. v. Crouch, 386 S.E.2d
290, 291 (S.C. Ct. App. 1989), the Court of Appeals of South Carolina held that a railroad
had extinguished its railroad right-of-way easements because the “conduct of the Motor
Lines has been utterly inconsistent with intent to use the property involved for railroad
purposes.” Id. Considering these South Carolina Supreme Court decisions, there is a
school of thought in South Carolina which has concluded that an easement can be
extinguished when it is used for non-railroad purposes. Upon the extinguishment of the
railroad purposes easement, plaintiffs have a right to their property unencumbered by the
easement. See Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257, 1265
(2014) (“In other words, if the beneficiary of the easement abandons it, the easement
disappears, and the landowner resumes his full and unencumbered interest in the land.”);
see also Rogers v. United States, 107 Fed. Cl. at 393 (explaining that upon “termination
of a railroad easement, the burden of the easement would simply be extinguished, and
the landowner’s property would be held free and clear of any such burden”). This, at first
glance, is inconsistent with South Carolina statute § 57-3-220(A), which provides that a
railroad right-of-way held for railroad preservation shall not be considered abandoned,
yet, as stated above, there is no South Carolina case interpreting § 57-3-220(A). Although
the South Carolina Supreme Court has held that an easement can be extinguished by
use for non-railroad purposes, the South Carolina statute appears to block any
abandonment or extinguishment of the railroad’s easements under state law, “a railroad
corridor held for railroad right of way preservation is not abandoned for the purpose of
any law,” S.C. Code § 57-3-220(A). As discussed above, the court concludes that the
railroad easements were not abandoned under South Carolina law.

        In the above-captioned cases, the NITU explicitly authorized use of the railroad’s
easements for recreational trail use. As discussed above, the court has found recreational
trail use and railbanking as beyond the scope of the railroad purposes easements held
by SC Central. When SC Central pursued the issuance of a NITU, which the STB
subsequently issued, authorizing the railroad’s easements to be used for recreational trail
use, with attendant railbanking, the easements limited for railroad purposes were
exceeded even though trail use did not become a reality. See Ladd v. United States, 630
F.3d at 1019 (“[A] Fifth Amendment taking occurs in a Rails-to-Trails cases when
government action destroys state-defined property rights by converting a railway
easement to a recreational trail, if trail use is outside the scope of the original railway
easement.”); see also Toews v. United States, 376 F.3d at 1376; see also Memmer v.
United States, 122 Fed. Cl. at 365. The NITU imposed a new and different burden on the
property. By operation of the Trails Act, the government exercised control over plaintiffs’
property and effected a taking of plaintiffs’ property. Even though no trail use was
consummated, initially or after the second NITU was issued, the takings occurred with the
issuance of the NITU and for the periods in which the NITU was in operation. Thus, after
a trail use agreement was no longer viable, the railroad purposes easements remained
in place as burdens on the plaintiffs’ properties.



                                            27
       Having concluded that a taking occurred when the NITU was issued because the
NITU authorized uses that exceeded the scope of the railroad’s easements, the court
turns to consider whether the taking was temporary or permanent. According to plaintiffs,
the NITU effected a permanent taking of plaintiffs’ right to the unencumbered use of their
land. Plaintiffs argue that the taking does not end until the “STB vacates the original order
invoking the Trails Act and no longer asserts jurisdiction over the owner’s property.”
Defendant, however, argues that, even if the court determines that the NITU resulted in
a taking, on the facts of these cases plaintiffs’ claims can only be analyzed as a temporary
taking. Defendant asserts that “the issuance of the NITU does not result in a per se
temporary taking,” and, argues that, instead, “the question of whether the STB’s issuance
of a NITU resulted in a temporary taking of Plaintiffs’ property interests in the subject
railroad corridor requires consideration of all facts and circumstances.” According to
defendant, plaintiffs cannot meet their burden to show that a temporary taking occurred
as outlined by the United States Supreme Court’s decision in Arkansas Game and Fish
Commission v. United States, 133 S. Ct. 511, 522-23 (2012). According to defendant, in
Arkansas Game and Fish Commission, the Supreme Court

       decreed that the test of liability for temporary takings both physical and
       regulatory turns on many factors the courts must weigh, including the
       duration and severity of the interference, the character of the land, the
       landowner’s reasonable investment-backed expectations, and the degree
       to which the invasion is the intended or foreseeable result of authorized
       government action.

 Defendant asserts that plaintiffs presented no evidence regarding these factors, and that
an assessment of these factors reveals that the United States is not liable for a temporary
taking of plaintiffs’ property. According to defendant, a temporary taking of plaintiffs’
property interests did not occur because the “NITU process did not delay the Railroad’s
abandonment in a manner that adversely affected the Plaintiffs’ property rights.”
Defendant also argues that plaintiffs did not have any reasonable investment-backed
expectations in full and unrestricted use of the property underlying the railroad line.
Alternatively, defendant argues that, even if the court finds that a temporary taking
occurred, “[a]ny taking found extends only from February 2012 to November 2015 – a
period of less than three years.” Defendant argues that, because SC Central filed the
notice to discontinue service in November 2015, “SC Central can no longer abandon the
rail line (or transfer it to a trail group) without another action by the STB.”

        The United States Court of Appeals for the Federal Circuit has held that “where no
trail use agreement is reached, the taking may be temporary.” Ladd v. United States, 630
F.3d at 1025. The Federal Circuit stated further that “[t]he duration of the taking goes to
damages, not to whether a compensable taking has occurred.” Id. In Memmer v. United
States, 122 Fed. Cl. at 365-66, and Caquelin v. United States, 121 Fed. Cl. 658, 666
(2015), other judges of this court have found that a temporary taking occurred when the
NITU had expired and no trail use agreement had been reached. In the above-captioned
cases, the NITU remained in place for approximately three years, between February 3,
2012 and January 16, 2015, however the railroad was not able to execute a trail use
agreement during that time and the authority to abandon the railroad line expired on

                                             28
January 16, 2015. Notwithstanding defendant’s argument that plaintiffs must satisfy
certain factors to prove that a temporary taking occurred, the Federal Circuit
unequivocally stated in Ladd that whether a taking is permanent or temporary does not
affect whether a compensable taking has occurred, but, instead, to what damages
plaintiffs may be entitled. “Post-NITU events may affect the duration of, and compensation
for, the taking, but they do not foreclose the NITU from effecting the taking in the first
instance.” Memmer v. United States, 122 Fed. Cl. at 366; see also Ladd v. United States,
630 F.3d at 1025. As discussed more fully above, this court has concluded that a
compensable taking occurred when the NITU was issued on February 3, 2012. Given that
the NITU expired on January 16, 2015, and, at the same time, the authority to use the
railroad’s easements for recreational trail use and railbanking expired, the court finds the
nature of the taking in these cases to be temporary.

         Finally, in addition to the takings claims, the parties dispute whether certain
plaintiffs can recover “severance damages” for the alleged impairment of plaintiffs’
crossing rights by operation of the Trails Act. Plaintiffs Sonoco Products, Inc., the Cribb
Family Limited Partnership, Robert Nolan, L.E. Covington, Jr., and Dr. N.H. Beaver, Jr.
own property on both sides of the railroad corridor and allege that the NITU impaired their
ability to cross the railroad corridor and fully access their property. Defendant argues that
these plaintiffs cannot demonstrate they are entitled to severance damages for alleged
impairment of crossing rights as a result of action of the United States because the Trails
Act authority did not prevent plaintiffs from crossing over any easement imposed.
Defendant argues that the landowners have continued to cross the railroad corridor and
that South Carolina law requires railroads to allow crossing rights. Defendant asserts that,
although the Trails Act may postpone reversionary interests that would otherwise arise
under state law, the Trails Act does not preempt all state law. Plaintiffs argue that
defendant’s argument is premature because “[t]he specific compensation due each of
these South Carolina owners will be determined in the appraisal and valuation stage of
this litigation,” and the amount due to each owner is specific to the circumstances and
appraisal of each owner’s property. Alternatively, plaintiffs argue that the “[t]he STB’s
continuing jurisdiction to regulate this corridor under the Trails Act means federal law
preempts South Carolina law,” and that “the state law right to cross a railroad right-of-
way, as it relates to severance damages, is something that has been preempted by the
federal law.” Plaintiffs argue that because the STB did not recognize plaintiffs’ right to
cross the corridor, plaintiffs did not retain the legal right to cross the corridor. According
to plaintiffs, if plaintiffs who own property on both sides of the railroad corridor do not have
the legal right to cross the railroad corridor, “then the property has to be appraised taking
that fact into consideration.”

        The Trails Act authorizes the government to preempt state abandonment laws by
issuing a NITU, which precludes the vesting of state law reversionary interests in an
otherwise abandoned railroad right-of-way. See Caldwell v. United States, 391 F.3d at
1233; see also Jenkins v. United States, 102 Fed. Cl. 598, 615 (2011) (explaining that
“the Trails Act authorizes the federal government to preempt state abandonment laws”).
In Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452, 456 (2013), another judge
of this court found that, although state law claims of abandonment of a railroad right-of-
way are preempted by operation of the Trails Act, the issuance of the NITU does not

                                              29
preempt all state law property claims of a landowner. See id. Counsel for the above-
captioned James plaintiffs put forth a similar preemption argument in Dana R. Hodges
Trust v. United States, in which the plaintiffs sought severance damages and argued that
their state law property rights, including their crossing rights, were entirely preempted
when the STB invoked the Trails Act and issued a NITU. See id. In Dana R. Hodges Trust,
the court found that plaintiffs “lack[ed] case support for their broader pre-emption
argument that the Trails Act precludes all state law property law claims.” Id. In that case,
the court concluded that, while the Trails Act precludes a landowner’s state law claim as
to abandonment of a railroad easement, plaintiffs are not impeded from exercising
whatever rights of access they held that pre-existed the conversion of the railroad corridor
to recreational usage. Id.

        To support its position that the “federal Trails Act preempts state law altogether,”
plaintiffs further cite Preseault I, 494 U.S. at 20, and Grantwood Village v. Missouri Pacific
Railroad Co., 95 F.3d 654, 657 (8th Cir. 1996). In both Preseault I and Grantwood Village,
the courts also explained that the Trails Act preempts the operation of some, but not all,
state laws. See Preseault I, 494 U.S. at 21 (O’Connor, J. concurring) (explaining that the
ICC’s actions preempt “the operation and effect of certain state laws”); Grantwood Village
v. Mo. Pacific R.R. Co., 95 F.3d at 657 (explaining that because the “ICC has exclusive
and plenary authority to determine whether a rail line has been abandoned . . . the
question of whether [the railroad] abandoned the right-of-way necessarily involves federal
law”). As the court concluded in Dana R. Hodges Trust v. United States, this court finds
that plaintiffs have not submitted supportive case law or substantiated their broad position
that the Trails Act preempts the operation of all state law. Moreover, the existing federal
rails-to-trails case law suggests the opposite of plaintiffs’ position and that the purpose of
the Trails Act is to preempt the abandonment of a railroad right-of-way under applicable
state law. See Rogers v. United States, 814 F.3d at 1303; Barclay v. United States, 443
F.3d at 1373 (explaining that the Trails Act operates to prevent abandonment of a railroad
corridor and to preclude the vesting of state law reversionary interests in the right-of-way);
Caquelin v. United States, 121 Fed. Cl. at 660, n.1 (explaining that the NITU serves as
the mechanism that bars railroad abandonment); Rhutasel v. United States, 105 Fed. Cl.
at 230 (explaining that the issuance of the NITU is the only government action that
operates to preempt abandonment); Glosemeyer v. United States, 45 Fed. Cl. at 776
(explaining that the Trails Act works to thwart and preempt the termination of a railroad’s
right-of-way).

        The law in South Carolina establishes that a railroad possessing a mere easement
over a landowner’s property may not interfere with a landowner’s right to cross. See
Faulkenberry v. Norfolk Southern Ry. Co., 563 S.E.2d at 648 (holding that “the 1845
Charter created only an easement in Railroad, such that Faulkenberry . . . may cross the
railroad tracks”); Miller v. Seaboard Air Line Ry., 77. S.E. 748 (S.C. S.C. 1913) (holding
that when a railroad company acquires by deed or condemnation a right of way which
divides a tracts, the owner has the right of crossing). As discussed above, the parties do
not dispute, for the purpose of summary judgment, that the railroad held only an easement
for railroad purposes, thus, pursuant to South Carolina property law, plaintiffs in the
above-captioned cases had a right to cross the railroad easement held by SC Central and
its predecessors. There is no support in South Carolina case law or in the Trails Act for

                                             30
plaintiffs’ argument that, by operation of the Trails Act, plaintiffs lost their crossing rights
when the NITU was issued. Plaintiffs crossing rights have not changed. Instead, plaintiffs
hold the same crossing rights over the trail use and railbanking easements imposed by
the NITU and retain the same entry rights that plaintiffs held when SC Central received
the easements for railroad purposes over plaintiffs’ land.

        The above-captioned cases are not ripe for a decision as to damages because the
parties have not submitted briefing on damages, and, as plaintiffs assert, the
compensation due to each plaintiff will be considered in the appraisal and valuation stage
of this litigation.

                                       CONCLUSION

       For the foregoing reasons, defendant’s cross-motion for partial summary judgment
is DENIED, and plaintiffs’ cross-motion for partial summary judgment is GRANTED. The
measure of just compensation to the plaintiffs for the taking of plaintiffs' property should
be based on the takings time period and the additional trail use and railbanking
easements that were imposed on plaintiffs’ property, which was originally encumbered by
the railroad purposes easement. Further proceedings will be established by separate
Order.

IT IS SO ORDERED.

                                                            s/Marian Blank Horn
                                                            MARIAN BLANK HORN
                                                                       Judge




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