     In the United States Court of Federal Claims
                                No. 16-1633L
                            (Filed: May 17, 2018)

**********************

WILLIAM O. BANKS, et al.,
                                                  Fifth Amendment Taking;
                                                  Rails-To -Trails; Right-of-
                     Plaintiffs,
                                                  Way Easement; Notice of
                                                  Interim Trail Use; Consent
v.
                                                  to Do Harm; Fee Estate;
                                                  State Law Reversionary
THE UNITED STATES,
                                                  Interest.
                     Defendant.

**********************
       Mark Fernlund Hearne, II, Washington, DC, with whom were Lindsay
S.C. Brinton, Meghan S. Largent, Stephen S. Davis, and Abram Pafford, for
Plaintiffs.

       Paul George Galindo, Trial Attorney, United States Department of
Justice, Environmental & Natural Resources Division, Washington, DC, with
whom was Jeffrey H. Wood, Acting Assistant Attorney General, for Defendant.

                                   OPINION

        Plaintiffs in this action are Lafayette County, Missouri landowners who
assert that the United States took without compensation interests in their real
property contrary to the Fifth Amendment to the Constitution. Plaintiffs allege
that their predecessors-in-interest sold right-of-way easements along a
2.91-mile-long strip of land to the Wyandotte, Kansas City and Northwestern
Railroad solely for operation of a railway in or about 1873. They allege that
the United States, acting pursuant to the National Trails System Act1 (the


1
 In 1983, Congress enacted the National Trails System Act Amendments of
1983, Pub. L. No. 98-11, 97 Stat. 42, to the National Trails System Act, Pub.
L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. § 1241
et seq.) (2012). Trails Act creates an an alternative to immediate abandonment
“Trails Act), took a new easement across their underlying fee interest in those
same lands in February 2012 when the Surface Transportation Board (STB)
invoked section 8(d) of the National Trails System Act and issued a Notice of
Interim Trail Use (“NITU”), postponing plaintiffs’ immediate right to full use
of the surface.

        Pending are the parties’ cross-motions for partial summary judgment.
Plaintiffs’ motion seeks a ruling in their favor on liability, after which the court
should proceed to the valuation phase. Defendant’s cross-motion asks the
court to deny plaintiffs’ motion and defer ruling on liability. Defendant also
seeks a preliminary ruling as to three particular parcels of land, asserting that
plaintiffs either do not own the fee, or have waived any objection to the
conduct of the United States.

                                BACKGROUND

       The railroad corridor in question stretches from milepost 246.49 near
Myrick, Missouri, to milepost 243.58 in Lexington, Missouri. The Union
Pacific Railroad is the most recent successor in interest to the Wyandotte,
Kansas City and Northwestern Railroad. On January 31, 2011, Union Pacific
petitioned the STB to abandon the line. On February 16, 2012, the City of
Lexington requested the STB to invoke section 8(d) of the Trails Act and issue
a NITU, which it did on February 24, 2012. In the interim, a series of
extensions have been issued to the original NITU, with the most recent
expiring on January 24, 2018.

                                 DISCUSSION

        There are fourteen parcels at issue, owned by five plaintiffs. The
parties have agreed on a numbering system and, as to most of the parcels, have
also agreed that the railroad originally acquired only an easement. As to two
parcels, however, defendant contends that the Union Pacific is the fee owner:
parcel 13, the Waters conveyance, and Parcel 18, the Macey conveyance. As
to the third parcel in dispute, defendant argues that the plaintiff invited the
United States’ actions, thus waiving any complaint about it now. Plaintiffs


by preserving the rail corridor for future rail use through imposition of an
interim recreational trail, a practice known as “railbanking.” See 16 U.S.C. §
1247(d) (2012).


                                         2
disagree as to all three. We address each in turn and then treat the parties’
cross-motions as to the general liability issue.

I. Defendant’s Motion For Partial Summary Judgment As To The Three
Disputed Parcels

       Missouri law permits railroad companies to hold rail corridors in fee.
Miller v. United States, 67 Fed. Cl. 542, 547 (2005); Hubbert v. United States,
58 Fed. Cl 613, 615 (2003); and Moore v. United States, 58 Fed. Cl. 134
(2003). Plaintiffs are correct, however, that Missouri law favors the
conveyance of easements to railroads. Moore, 58 Fed. Cl. at 136 (citing
Brown v. Weare, 152 S.W.2d 649, 652 (Mo. 1941)); Chouteau v. Mo. Pacific
R.R. Co., 22 S.W. 458 (1893); Jordan v. Stallings, 911 S.W.2d 653, 658 (Mo.
Ct. App. 1984). Thus, only if the intent is clear will a deed be construed as
conveying a fee to a railroad for operation of a rail line.

       Defendant offers the following printed transcription of the hand-written
deed to Parcel 13, the Waters conveyance, parts of which were illegible:

       This Indenture made on the 12th day of July A.D. One
       Thousand, eight hundred and eighty two by and between Patrick
       Waters and Catherine Waters of Lafayette County, State of
       Missouri, parties of the first part, and the Missouri Pacific
       Railway Company Corporation organized under the laws of the
       State of [illegible], party of the second part. Witnesseth the said
       parties of the first part, in consideration of the sum of One
       Hundred dollars, the receipt whereof is hereby acknowledged
       and the building, maintenance, and operation of a railroad by the
       said party of the second part its successors and assigns upon the
       strip of land hereinafter described, do by these presents grant,
       bargain, and sell, convey and confirm unto the said party of the
       second part, its successors and assigns, all that piece and parcel
       of land being a strip of land One hundred and twenty five feet in
       width situated, being and lying in [… illegible…] State of
       Missouri in section No. Township No. 51, Range No. 27: Lot
       16, Block 2 and Lot 6, Block 3, all in [Illegible] addition to the
       City of Lexingt[on], Mo. according to the survey and profile
       map made by the Engineers of said Railway Company for a
       Railway over and across said tracts of land filed with the Clerk
       of 54-433 the County Court of said County and in his office

                                       3
       being for a sidetrack and switch of said Railway Company. The
       coal under said land is expressly reserved from the operation of
       this deed[;] the right is also reserved to remove the fence and the
       [… illegible…] the same are to be removed so as not to interfere
       with or delay said Company in constructing their railroad over
       said lots. And the parties of the first part agree further that the
       Railway Company aforesaid, through its agents, employees and
       servants, may be allowed to encroach upon the adjoining Lands
       outside of the limit above mentioned as to which the parties of
       the first part [has] title for the purposes of constructing or
       trimming its cuts or fills or for any purposes of drainage or
       change of channel, so long as the Railway Company aforesaid
       may wish to maintain and operate the said Railroad, it being
       expressly understood and agreed, however, that the title acquired
       by the said party of the second part shall be confined to the strip
       of land first above mentioned. To have and to hold the premises
       aforesaid with all and singular the rights, privileges,
       appurtenances and immunities thereto belonging or in anywise
       appertaining unto the said party of the second part, and its
       successors and assigns forever.

We read this language as creating three new estates in land.

        The first, relating to the parcel in dispute, we hold to be a fee
conveyance. Although the word “fee” does not appear, the granting language
contains no limitation of rights in the transfer. Instead, “all that parcel” is
bargained, sold and conveyed, subject only to retention of a mineral estate (the
coal rights), the second estate created, which, as defendant correctly points out,
is not inconsistent with the conveyance of a fee interest. Further, the reference
to “the survey and profile map made by the Engineers of said Railway
Company for a Railway over and across said tracts of land filed with the Clerk
of 54-433 the County Court of said County and in his office being for a
sidetrack and switch of said Railway Company,” we do not construe
grammatically to be a limitation of the purpose of the grant. It is part of the
identification of the property.

      The consideration of $100 is also not de minimis. Indeed, as part of the
consideration, the grantee promises to construct a railroad. This additional
language, rather than suggesting an easement, is clearly intended as an element
of compensation. Finally, the habendum clause is consistent with the

                                        4
conveyance of a fee: “To have and to hold the premises aforesaid with all
singular rights the rights privileges, appurtenances and immunities thereto
belonging or in anywise appertaining unto the said party of the second part,
and its successors and assigns forever.” All rights in the land, as a surface
estate, are being conveyed, in other words, as a fee.

       The third estate granted, which relates to “adjoining Lands,” appears to
be for the limited purpose of allowing the railroad maintenance access in
support of the primary grant:

       the Railway Company aforesaid, through its agents, employees
       and servants, may be allowed to encroach upon the adjoining
       Lands outside of the limit above mentioned as to which the
       parties of the first part [has] title for the purposes of constructing
       or trimming its cuts or fills or for any purposes of drainage or
       change of channel, so long as the Railway Company aforesaid
       may wish to maintain and operate the said Railroad, it being
       expressly understood and agreed, however, that the title acquired
       by the said party of the second part shall be confined to the strip
       of land first above mentioned.

This grant, which is limited both in time and purpose, is a grant of an easement
for a particular use. It does not, however, suggest a more limited purpose for
the identified parcel underlying the railroad track itself. The grants are
independent. The first is a fee with a retained mineral estate; the other is an
easement.

      Parcel 18, the Macey conveyance, is controlled by a quitclaim deed
which, according to the government’s transcription, recites the following:

       This Indenture, Made on the day of October A.D. One Thousand
       Eight Hundred and Eighty-Two by and between Henry Macey
       and Maria Macey of the County of Jackson and State of
       Missouri, parties of the First Part, and The Missouri Pacific
       Railway Company of the County of and State of Missouri, party
       of the Second Part, WITNESSETH: that the said part____ of the
       First Part, in consideration of the sum of Twenty Dollars
       [$20.00], to them paid by the said party of the Second Part, the
       receipt of which is hereby acknowledged, do by these presents
       Remise, Release and forever Quit-Claim, unto the said party of

                                         5
       the Second Part, the following described lots, tracts or parcels
       of Land, lying, being and situate in the County of Lafayette and
       State of Missouri, to wit: The right of way for the track and road
       of said Company one hundred and twenty five feet [125’] in
       width over and across lots eight (8) and nine (9) in Block Five
       (5) in Buckingham’s addition to the City of Lexington[,] said
       right of way to be as shown by the profile and map of right of
       way for additional side tracks of said rail road filed in the office
       of the County Clerk of Lafayette County Missouri on the 14th
       day of August 1882.

        A quitclaim deed typically transfers all of the grantor’s interest in a
piece of land, Jamieson v. Jamieson, 912 S.W.2d 602, 605 (Mo. Ct. App.
1995) (“A quit-claim deed passes the whole of grantor’s interest in the
property.”), although it does so without warranting title. Plaintiffs are thus left
to argue that they have a fee interest in a parcel of land in which their
predecessors-in-title quitclaimed away all of their estate. The contradiction in
that argument is readily apparent.

       We recognized, however, that the use of the following phrase in the
granting clause adds a bit of confusion:

       The right of way for the track and road of said Company one
       hundred and twenty five feet [125’] in width over and across lots
       eight (8) and nine (9) in Block Five (5) in Buckingham’s
       addition to the City of Lexington[,] said right of way to be as
       shown by the profile and map of right of way for additional side
       tracks of said rail road filed in the office of the County Clerk of
       Lafayette County Missouri on the 14th day of August 1882.

        Defendant argues that the phrase is purely descriptive of the four
corners of the land being conveyed. Grammatically we believe defendant is
correct. The right of way language is preceded by the phrase “forever
Quitclaim. . . the following described lots, tracts or parcels of Land, . . . to wit:
. . .” The court has held that terms such as “‘right of way’ may be entirely
descriptive in nature, rather than an express limitation on the quantum of
interest.” Hubbert, 58 Fed. Cl at 615-616 .

       The habbendum clause, while less critical than the granting clause, is
also persuasive that the release is of a fee:

                                         6
       TO HAVE AND TO HOLD the same, with all the rights,
       immunities, privileges and appurtenances thereto belonging,
       unto the said party of the Second Part, and its successors and
       assigns, forever; so that neither the said parties of the First Part,
       nor their heirs, nor any person or persons for them or in their
       name or behalf, shall or will hereafter claim or demand any right
       or title to the aforesaid premises, or any part thereof, but they
       and every of them shall by these presents be excluded and
       forever barred.

The language affirms the notion of a quitclaim conveyance. The grantors
disclaim any further interest in the parcel, which is contrary to the inherently
limited grant of an easement. We are persuaded that this deed conveyed fee
title to the land underlying the railway.

       Plaintiffs also argue more generally that these two conveyances need
be read in light of the broader circumstances surrounding this rail corridor.
They point out that the original conveyances to Parcels Nos. 13 and 18
constitute only a fraction of the land abutting and underlying the abandoned
railroad corridor owned by William Banks and that the government agrees that
at least seven of those original conveyances relating to Bank’s property
granted easements. They thus urge the court not to treat these two small
parcels as distinct.

       That may be the case, but each deed must be viewed separately. These
are legally operative documents in and of themselves. We cannot reform these
two deeds to conform them with the others.

        The third parcel of land the government contests is owned by the
Lexington Special Road District. Defendant contends that the Road District
is barred from recovery because it is a creature of the State of Missouri, and
the state consented to the harm that Road District alleges. Both the City of
Lexington and the Road District are political subdivisions of Missouri. The
Road District is a municipal corporation; the City of Lexington is a
municipality, but both derive their powers from Missouri statutes, and the
powers of either or both can be expanded, contracted, or amended through the
action of the Missouri legislature. According to the government, this plaintiff,
properly viewed as the state, has invited the invasion through the actions of
one of its other subdivisions. See Pennsylvania v. New Jersey, 426 U.S. 660,
664 (1976) (“[N]o State can be heard to complain about damage inflicted by

                                        7
its own hand.”). Plaintiff responds that these two entities are separately
chartered under Missouri law and should be viewed as distinct political
entities, each with capacity to complain of the other’s actions.

       This same issue was addressed recently on similar facts in Balagna v.
United States, 135 Fed. Cl. 16 (2017). The court there held that because one
municipal corporation, the Canton Park District (“CPD”), had sought the
NITU at issue, two other landowners which were also municipal corporations
could not pursue their claims:

       CPD acted within its statutory authority under Illinois law when
       it filed the request for public use with the STB. In the Court’s
       view, when CPD filed the public use request with the STB on
       the state's behalf, the state effectively consented to the federal
       government holding the City's and Village's properties for use
       as a trail. Accordingly, no compensable taking occurred.

Balagna, 135 Fed. Cl. at 27.

       We believe the same reasoning applies here. The “state” here is acting
through both the road district and the city. Their conduct thus merges in the
State of Missouri. The Road District is barred by the consent of the state,
acting through the city, in seeking the federal government’s issuance of the
NITU.

II. Plaintiffs’ Motion For Partial Summary Judgment And Defendant’s
Request For A Stay Or Discovery

        We turn now to the remaining more general liability issue raised by
plaintiffs’ motion for summary judgment, which is the mirror image of
defendant’s motion for a stay. Plaintiffs argue that, under the law of this
circuit, liability is established; the incontrovertible act of taking occurred upon
issuance of the NITU. Plaintiffs cite Ladd v. United States, 630 F.3d 1015,
1019, 1023 (Fed. Cir. 2010), reh’g and reh’g en banc denied, 646 F.3d 910
(Fed. Cir. 2011), and Caldwell v. United States, 391 F.3d 1226 (Fed. Cir.
2004), for the proposition that a taking occurs immediately upon issuance of
a NITU. The fact that a trail easement has not been imposed nor a trail
constructed, as is the case here, is not relevant to the issue of liability,
according to plaintiffs; consideration of whether a trail is in place merely goes
to damages.

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        That assertion is certainly consistent with the two cited Federal Circuit
opinions. Caldwell’s announcement, at the government’s urging, of a bright
line rule for commencement of the limitations period, had a dramatic impact
on pending rails to trails cases, which had been analyzed under the assumption
that a taking did not commence until signing of the trail use agreement. Some
cases pending at the time were therefore dismissed as untimely.

        Despite its impact on pending cases, thereafter Caldwell could be
applied coherently in those instances in which a trail user was in place. What
that case did not address directly was what would occur if a trail use agreement
did not emerge before or during the pendency of litigation. Litigation had to
commence, due to Caldwell, but the government took the position that the
mere issuance of a NITU is not a per se taking.

      Ladd dealt with the situation in which a trail use agreement was never
consummated. Relying on Caldwell, the Federal Circuit held that

       we reject the government’s present suggestion that the NITU is
       nothing more than a temporary regulatory hold on the railroad’s
       authority to abandon its railway. In Caldwell, we rejected the
       notion that two takings might occur in a Rails-to-Trails case–a
       regulatory taking followed by a physical taking. . . . “the accrual
       date of a single taking remains fixed.” We further explained:
       “The NITU marks the ‘finite start’ to either temporary or
       permanent takings claims by halting abandonment and the
       vesting of state law reversionary interests when issued.”

630 F.3d 1015 (citing Caldwell, 391 F.3d at 1235). The court made it plain
that the taking was a physical, not a regulatory one, and that the duration of the
taking went to damages and not to liability. Id.

      Relying on this controlling precedent, plaintiffs ask the court to enter
judgment as to liability. They assert that “the notion of ‘permanence’ as the
government uses the term is not a necessary predicate to establish the
landowners’ entitlement to compensation.” Pl.’s Reply Br. 14, ECF No. 31.

        Defendant disagrees, urging the court to delay entry of judgment on
liability because of more recent developments in takings law, relying on
Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012), and
the Federal Circuit’s decision in Caquelin v. United States, 697 Fed. App’x

                                        9
1016 (Fed. Cir. 2017).

       Arkansas Game & Fish was not a rails to trails case. Rather, it involved
a claim of physical taking due to flooding. At the Court of Federal Claims,
Judge Lettow had concluded that the United States was liable for a temporary
physical taking and ordered compensation. 87 Fed. Cl. 594 (2009). On
appeal, the Federal Circuit reversed. 637 F.3d 1366, 1374 (Fed. Cir. 2011).
Because flooding cases have been treated as sui generis in takings analysis due
to their similarity to tort actions, the court held that, in order to be
compensable, flowage easements uniquely had to be permanent or inevitably
recurring.2 Because there had not been a finding of permanence or inevitable
recurrence, there was no taking. See id. at 1379.

       The Supreme Court reversed. It began by recognizing the background
principle in takings law that “[o]rdinarily . . . if government action would
qualify as a taking when permanently continued, temporary actions of the same
character may also qualify as a taking.” 568 U.S. at 26. The case before it,
however, was unique. The question was “the appropriate classification of
temporary flooding.” Id. The Court went on to make the limited ruling that
such cases are not immune from a takings analysis and remanded. In doing so,
however, it recognized a more general distinction in takings cases between
permanent and temporary physical takings:

       When regulation or temporary physical invasion by government
       interferes with private property, our decisions recognize, time is
       indeed a factor in determining the existence vel non of a
       compensable taking. Also relevant to the takings inquiry is the
       degree to which the invasion is intended or is the foreseeable
       result of authorized government action. So, too, are the
       character of the land at issue and the owner's “reasonable
       investment-backed expectations” regarding the land's use. . . . .
       Severity of the interference figures in the calculus as well.




2
 “[C]ases involving flooding and flow-age easements are different. Both
Supreme Court precedent and our own precedent dictate that we must
distinguish between a tort and a taking.” Arkansas Game & Fish, 637 F.3d at
1374.

                                      10
               The Court of Federal Claims found that the flooding the
       Commission assails was foreseeable. . . . Further, the court
       determined that the interference with the Commission's property
       was severe: The Commission had been deprived of the
       customary use of the Management Area as a forest and wildlife
       preserve, as the bottomland hardwood forest turned, over time,
       into a “headwater swamp.”

568 U.S. at 38–40 (internal citations and footnotes omitted).

       As can be seen from this excerpt, the Court viewed temporary physical
takings as similar to regulatory takings in that both involve a balancing of
various factors to determine “the existence vel non of a taking.” These factors
include time, foreseeability, severity, the character of the land at issue and the
owner’s reasonable expectations.

        Subsequent to Arkansas Game & Fish, the Federal Circuit was
confronted with an appeal from this court’s decision in Caquelin v. United
States, 121 Fed. Cl. 658, 667 (2015), in which Judge Lettow was faced with
a situation in which the NITU had never been consummated and indeed had
terminated. Nevertheless, relying on Ladd, he found that a temporary taking
had occurred and ordered compensation. On appeal, that decision was vacated
and remanded. 697 F. App’x 1016 (Fed. Cir. 2017). While recognizing that
the law of the circuit dictated affirmance by the panel, nevertheless, the circuit
court observed that the interposition of Arkansas Game & Fish may have
called Ladd into question. It remanded for the trial court’s application of the
factors suggested in Arkansas Game & Fish for determining when a temporary
physical invasion is compensable under the fifth amendment. Id. at 1019-20.
The court employed a similar remand in Memmer v. United States, No.
2017-2150, 2017 WL 6345843 (Fed. Cir. Nov. 16, 2017). Those remands are
still pending.

        Defendant, in reliance on these remands, urges the court to deny
plaintiffs’ motion for partial summary judgment and either abide the outcome
of Caqueline and Memmer or allow discovery on the factors identified in
Arkansas Game & Fish. We believe neither to be necessary.

      The Supreme has long held that temporary physical invasions are not
necessarily a compensable taking. As the Court taught in Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982),

                                       11
       The permanence and absolute exclusivity of a physical
       occupation distinguish it from temporary limitations on the right
       to exclude. Not every physical invasion is a taking. As
       PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980);
       Kaiser Aetna v. United States, 444 U.S. 164 (1979), and the
       intermittent flooding cases reveal, such temporary limitations
       are subject to a more complex balancing process to determine
       whether they are a taking. The rationale is evident: they do not
       absolutely dispossess the owner of his rights to use, and exclude
       others from, his property.

              The dissent objects that the distinction between a
       permanent physical occupation and a temporary invasion will
       not always be clear. This objection is overstated, and in any
       event is irrelevant to the critical point that a permanent physical
       occupation is unquestionably a taking. In the antitrust area,
       similarly, this Court has not declined to apply a per se rule
       simply because a court must, at the boundary of the rule, apply
       the rule of reason and engage in a more complex balancing
       analysis.

Id. at 436 n.12. This is, of course, the same analysis relied on by the Court in
Arkansas Game & Fish.

       We can presume that the court in Ladd was familiar with this limitation
and nevertheless implicitly concluded that, in the rails to trails context, these
factors militated in favor of a compensable temporary taking. “[P]hysical
takings are compensable, even when temporary. . . . The duration of the taking
goes to damages, not to whether a compensable taking has occurred.” Ladd,
630 F.3d at 1025. Even if we ignore Ladd and undertake a multi-factor
analysis, however, the result we find will be the same.

       We reject at the outset defendant’s remarkable proposal that discovery
be allowed into the following myriad questions:

       1. The date and circumstances under which plaintiff acquired the
       property;
       2. Plaintiffs’ intended use of the property at the time of
       acquiring the property;
       3. Applicable zoning and other rules and restrictions on property

                                       12
       use in the area;
       4. Plaintiffs’ past and current use of the property;
       5. The past and current use of neighboring and nearby
       properties;
       6. The effect, if any, of the rail corridor on plaintiffs’ use of the
       property;
       7. The effect, if any, of the NITU and the Trails Act on
       plaintiffs’ use of the property;
       8. The economic impact, if any, of the Trails Act on the
       property;
       9. The character of the Plaintiffs’ property;
       10. Plaintiffs’ reasonable investment-backed expectations for
       their respective properties, if any;
       11. The nature and effect of any asserted interference of
       Plaintiffs’ use of their property;
       12. The value of the property interest allegedly taken;
       13. The amount of compensation due in the event that a
       temporary taking is established; and
       14. The Union Pacific Railroad Company’s current property
       interests in the subject railroad corridor.

These fourteen “factors” are either immaterial to liability or can be addressed
without any further discovery. The factors actually enumerated in Caqueline
or Arkansas are the following:

        Time: The length of time between the issuance of the NITU and today
is undisputed. The NITU was issued on February 12, 2012, and has been
extended thereafter. Temporary takings less than six years have been held to
be compensable. See Kimball Laundry Co. v. United States, 338 U.S. 1
(1949); Yuba Natural Res., Inc. v. United States, 821 F.2d 638 (Fed. Cir.
1987); Hardy v. United States, 131 Fed. Cl. 534, 540 (2017); James v. United
States, 130 Fed. Cl. 707 (2017); Pettro v. United States, 47 Fed. Cl. 136, 155
(2000).

        Causation: There can be no dispute that the NITU occurred and blocked
use of the land. As the Federal Circuit explained in Caldwell, “[T]he issuance
of the NITU is the only government action in the railbanking process that
operates to prevent abandonment of the corridor and to preclude the vesting of
state law reversionary interests in the right-of-way.” 391 F.3d at 1233–34.
See United States v. Causby, 328 U.S. 256, 266 (1946) (affirming a temporary

                                        13
taking from overflights as “a direct and immediate interference with the
enjoyment and use of the land”).

        Intentionality/Foreseeability: We view it as unnecessary to open
discovery for this factor as well. There was no inadvertence here.
Foreseeability merely inquires into whether the “invasion” is the foreseeable
result of government action. See Arkansas Game & Fish, 568 U.S. at 39. The
compensable “invasion” in a rails to trails case does not necessarily involve
physical presence of federal or third party actors. From the beginning, the
Court has held that “[b]y deeming interim trail use to be like discontinuance
rather than abandonment, Congress prevented property interests from reverting
under state law.” Preseault v. I.C.C., 494 U.S. 1, 8 (1990) (internal citation
omitted.) The fact that the NITU is not evidenced by “boots on the ground”
is immaterial. The owners of the underlying fee are precluded from using their
own land. That result requires no great foresight to anticipate.

        Severity/Substantiality: It is undisputed that 100% of the landowners’
use of their own land is blocked by operation of law. None of the rails to trails
case precedent with respect to liability has required an additional showing by
landowners of what they would have done with the land if they could access
it. That may well be relevant in a compensation inquiry, but we view it as
immaterial on liability.

        The character of the land at issue: Admittedly there is no stipulation as
to the nature of the land at issue, but we view this issue as immaterial on
liability. Whether plaintiffs’ property was commercial, farm, or undeveloped
land, the United States has no right to simply block control of the surface at no
cost to the government unless plaintiffs can demonstrate its value. This issue,
as well, only has potential relevance for compensation.

        The owner’s reasonable investment-backed expectations: In the context
of a physical invasion, this issue goes to whether the landowners could
legitimately anticipate being free of government interference.3 For example,
if the government is asserting public safety concerns which prompted it to
enter the land, then that fact is relevant in a balancing analysis. In Arkansas,
the Court noted that distinct investment-backed expectations are a matter often


3
 We decline to stretch this factor in the context of a rails to trails case to the
more generalized inquiry under regulatory takings cases.

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informed by the law in force in the State in which the property is located. 568
U.S. at 38. There can be no need for further consideration here. The only
issue is whether plaintiffs owned a fee estate. If so, then the entire premise
behind Preseault is that they have a right under state law to expect the return
of unfettered access when a railroad easement comes to an end. There is no
assertion that the government was pursuing some public safety concern or was
suppressing a nuisance.

        Plaintiffs have been deprived of the full use of their own property for
over six years. The NITU plainly caused this impact. The nature of the taking
is foreseeable, severe, not mitigated depending on the quality of the land, and
could not be anticipated. This much is undisputed and is sufficient to find a
compensable temporary taking. Consideration of the other factors are not
relevant to liability, although may relate to the amount of compensation.

                               CONCLUSION

        Summary judgment is granted to defendant with respect to the three
parcels discussed above. Claims as to those parcels are dismissed.
Defendant’s motion is denied in all other respects. Plaintiffs’ motion for
partial summary judgment is granted as to liability for a temporary taking with
respect to remaining plaintiffs.4 The parties are directed to communicate and
propose further proceedings with respect to compensation in a joint status
report on or before Friday, June 8, 2018.



                                            s/Eric G. Bruggink
                                            ERIC G. BRUGGINK
                                            Senior Judge




4
 Defendant alludes to the possibility that some of the plaintiffs, and not merely
those who own the three parcels addressed above, may not have owned their
parcels as of the date of the NITU. The discovery request related only to the
multi-factor analysis and presumed no further discovery on title. Defendant
did not seek additional discovery on this issue and has offered nothing other
than speculation.

                                       15
