                                   ___________

                                   No. 95-3412
                                   ___________

Union Center Redevelopment             *
Corporation, a Missouri                *
redevelopment corporation,             *
                                       *
           Plaintiff - Appellant,*
                                       * Appeal from the United States
                                       * District Court for the
     v.                                * Eastern District of Missouri.
                                       *
National Railroad Passenger            *
Corporation, a District of             *
Columbia corporation,                  *
                                       *
           Defendant - Appellee.       *

                                   ___________

                    Submitted:     April 11, 1996

                          Filed:   January 2, 1997
                                   ___________

Before MCMILLIAN, JOHN R. GIBSON, and FAGG, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.


     Union Center Redevelopment Corporation brought a condemnation action
against National Railroad Passenger Corporation, known as Amtrak, to
acquire two parcels of real property adjacent to Union Station in downtown
St. Louis, Missouri.    Amtrak previously had acquired the property under its
federal condemnation power for the construction of a rail passenger service
station.    The   district   court1   granted    summary   judgment   to   Amtrak,
concluding that Union




      1
      The Honorable George F. Gunn, United States District Judge
for the Eastern District of Missouri.
Center had failed to show that there was no possibility that Amtrak would
use the property in the future for a public use such as an intercity rail
passenger station.     Union Center appeals, arguing that the district court
misinterpreted Missouri law and that the planned future use of property for
public use is not a defense to condemnation for a present public use.             We
conclude that Union Center cannot maintain a condemnation action against
Amtrak because 45 U.S.C. § 545(d) (1994)2 constitutes an implied preemption
of Missouri condemnation law.         We also conclude that Union Center cannot
prevail under Missouri law, as Union Center failed to establish that its
proposed use will not materially interfere with Amtrak's plan to use the
property    in   the   future   for    an    intercity   rail   passenger   station.
Accordingly, we affirm.


     In 1980, under its federal condemnation power, Amtrak acquired three
parcels of property near Union Station in St. Louis for the purpose of
constructing a rail passenger service station for intercity rail passenger
service.    At the time Amtrak obtained this property, the federal government
had committed funding for the construction of a rail passenger station in
St. Louis, but later withdrew the funding.          Since acquiring the property,
Amtrak has continued unsuccessfully to seek funds to build a station on the
property.    In the meantime, Amtrak has leased portions of the property to
the post office for parking and temporary storage of mail trucks and
trailers and to St. Louis Station Associates for parking.           The property is
also included as one of eight possible sites for a proposed Multi-Modal
Transportation Center that, if built, would include a rail passenger
station.




     2
      The Rail Passenger Service Act of 1970 was recodified at 49
U.S.C. § 24101 et seq., and reenacted as part of a general
restructuring of the United States Code, which took effect on July
5, 1994. Pub. L. No. 103-272, 108 Stat. 899 (1994). The parties
agree that the former Title 45 controls this action because it was
commenced before July 5, 1994.

                                            -2-
     In 1993, Union Center, a redevelopment corporation organized under
Missouri law, Mo. Rev. Stat. §§ 353.010-.190 (1994), filed a condemnation
petition in state court seeking to condemn two parcels of the property
Amtrak had acquired in the 1980 federal condemnation actions.   Union Center
has the right of eminent domain under Section 353.130 of the Missouri
Revised Statutes.


     Amtrak removed the condemnation action to federal court and moved for
judgment on the pleadings or, in the alternative, summary judgment.   Amtrak
argued that Missouri law did not permit condemnation of Amtrak's property,
and also that Union Center lacked standing to collaterally attack the 1980
condemnation   actions and was barred by the doctrines of res judicata and
collateral estoppel.   Amtrak also argued that 45 U.S.C. § 545(d) preempts
state laws that conflict with Amtrak's federal right of condemnation.


     The district court did not decide Amtrak's preemption, collateral
estoppel, or res judicata arguments.      See Union Ctr. Redev. Corp. v.
National R.R. Passenger Corp., 874 F. Supp. 968, 970 (E.D. Mo. 1995).
Instead, the court looked to Missouri law and concluded that Union Center
could not condemn Amtrak's property because Amtrak's property already was
devoted to a public use and Union Center had failed to show that there was
"no possibility in the future for Amtrak to use the property for a public
use such as an intercity rail passenger station."       Id.     Union Center
appeals.


                                    I.


     Amtrak contends that we should affirm the district court's judgment
on the alternative ground that 45 U.S.C. § 545(d) impliedly preempts any
state or local law that permits the condemnation of Amtrak's property
without its consent.   Section




                                    -3-
545(d)3 grants Amtrak the right to condemn any property that is required
for intercity rail passenger service.      See National R.R. Passenger Corp.
v. Two Parcels of Land, 822 F.2d 1261, 1264-65 (2d Cir.) (discussing
Amtrak's condemnation authority), cert. denied, 484 U.S. 954 (1987).


     The   Supreme    Court   recently   outlined   the   doctrine   of   implied
preemption:


     [A] federal statute implicitly overrides state law either when
     the scope of a statute indicates that Congress intended federal
     law to occupy a field exclusively, or when state law is in
     actual conflict with federal law.       We have found implied
     conflict pre-emption where it is impossible for a private party
     to comply with both state and federal requirements, or where
     state law stands as an obstacle to the accomplishment and
     execution of the full purposes and objectives of Congress.




     3
      45 U.S.C. § 545 provides, in part:

     (d) Acquisition of property; declaration of taking;
     property compensation; procedures; transfer of title

     (1) [Amtrak] is authorized, to the extent financial
     resources are available --

              . . .

              (B)   to acquire any right-of-way, land, or other
              property (except right-of-way, land, or other
              property of a railroad or property of a State or
              political subdivision thereof or of any other
              governmental agency), which is required [for]
              inter-city rail passenger service;

by the exercise of the right of eminent domain, in accordance with
the provisions of this subsection, in the district court of the
United States for the judicial district in which such property is
located . . .; Provided, That such right may only be exercised when
[Amtrak] cannot acquire such property by contract or is unable to
agree with the owner as to the amount of compensation to be paid.




                                     -4-
Freightliner Corp. v. Myrick, 115 S. Ct. 1483, 1487 (1995) (internal
citations and quotations omitted).


        Amtrak explains that any state or local law that would allow for the
condemnation      of   its    property   would      directly    conflict    with      Amtrak's
independent determination under 45 U.S.C. § 545(d) that such property is
"required [for] inter-city rail passenger service."                     See National R.R.
Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417-422 (1992)
(considering another condemnation provision in the Rail Passenger Service
Act).


        Union Center responds that 45 U.S.C. § 545(d) does not impliedly
preempt state or local condemnation laws.                    Union Center supports its
argument with the Supreme Court's decision in Cipollone v. Liggett Group,
Inc., 505 U.S. 504 (1992), that holds that when a federal statute contains
an express preemption clause, and that clause is a reliable indication of
congressional intent with respect to state authority, a court cannot
consider implied theories of preemption.                    Because the Rail Passenger
Service Act expressly preempts numerous state and local laws and does not
mention    condemnation       laws,   Union    Center      argues   there   is   no    implied
preemption.      See Cipollone, 505 U.S. at 516-17.            The Supreme Court recently
rejected Union Center's interpretation of Cipollone, however, reasoning
that,    "[a]t    best,      Cipollone   supports     an    inference   that     an    express
preemption clause forecloses implied preemption; it does not establish a
rule."    Freightliner Corp., 115 S. Ct. at 1488.


        Under Union Center's construction of state law, Union Center could
condemn    Amtrak's       property    thereby       frustrating     Amtrak's     ability    to
accomplish its federal mandate of creating a nationwide rail system and
overriding Amtrak's decision that property is "required [for] inter-city
rail passenger service."         See 45 U.S.C. § 545(d).         See also Two Parcels of
Land, 822 F.2d at 1266-67 (holding that Amtrak's condemnation rights would
be "actually




                                              -5-
frustrate[d]" if state law were applied to determine the measure of
compensation   due   landowners   following    condemnation    under   45    U.S.C.
§ 545(d)); National R.R. Passenger Corp. v. Commonwealth of Pa. Pub. Util.
Comm'n, 848 F.2d 436, 437-40 (3d Cir.) (holding, under the principles of
federal supremacy, that Amtrak was exempt under 45 U.S.C. § 546(b) from
payment of a special assessment by a state agency), cert. denied, 488 U.S.
893 (1988).    Accordingly, we are persuaded that 45 U.S.C. § 545(d)
impliedly preempts Missouri law.
                                      II.


     Even if Missouri condemnation law applied, we are convinced that
Missouri law does not authorize Union Center's proposed condemnation of
Amtrak's   property.     Union    Center    contends   that,   contrary     to   the
interpretation of the district court, Missouri law does not require as a
condition precedent to taking property previously acquired and held for
public use, that the condemnor negate the possibility that the owner may
use the property in the future for a public use.


     In granting summary judgment to Amtrak, the district court relied on
St. Louis, Hannibal & Kansas City Railway v. Hannibal Union Depot Co., 28
S.W. 483 (Mo. 1894).   In that case, a railroad sought to condemn, for use
as railway track, a part of land acquired and held by Hannibal Union Depot
that was currently used for a railroad depot.          Id. at 484.   The railroad
condemned the property under Section 2741 of the 1889 Missouri Revised
Statutes (now codified at Mo. Rev. Stat. § 523.100 (1994)), which provided:


     In case the lands sought to be appropriated are held by any
     corporation, the right to appropriate the same by a railroad
     . . . shall be limited to such use as shall not materially
     interfere with the uses to which, by law, the corporation
     holding the same is authorized to put said lands.




                                      -6-
      After the trial court allowed the railroad to condemn the property,
the depot appealed.   The Missouri Supreme Court first described the power
of the state to appropriate private property to a public use as "an
inherent element of sovereignty. . . appl[ying] to all property, and . . .
impliedly reserved in every grant."    Id. at 485.   The court then explained
that the power to determine whether the proposed use constitutes a public
use rests exclusively with the legislature.   Id.    The court clarified this
power:


      It may be conceded, as a general rule of law, that lands once
      appropriated to one public use cannot be taken under
      proceedings in invitum and applied to the same or an
      inconsistent use, unless the intention of the legislature that
      it should be so taken is manifested in express terms or by
      necessary implication.

Id.

      The court decided that the general condemnation power given to the
railroad necessarily implied the power to appropriate a part of the depot's
land unless the condemnation would materially interfere with the uses of
the depot.    Id.     The court allowed the railroad to proceed with its
condemnation because it found that the construction and operation of the
railroad would not materially interfere with the land acquired and used by
the depot.   Id. at 485-86.


      Union Center argues that the district court's reliance on Hannibal
is misplaced because the Missouri court was considering a specific statute
that required a determination that the proposed taking did not materially
interfere with another public use.     Union Center contends that there are
a number of cases decided after Hannibal, most notably, Kansas & Topeka
Coal Ry. Co. v. Northwestern Coal & Mining Co., 61 S.W. 684 (Mo. 1901) (en
banc), which permit property acquired and held for a proposed future public
use to be subsequently condemned for a present public use.




                                      -7-
       In Northwestern Coal, a railroad attempted to condemn land for
railroad tracks.     Id. at 685.    The coal company which owned the land
protested the condemnation, arguing that the location of the proposed
tracks would materially interfere with its operations and construction of
a new mine.     Id. at 692-93.      The court rejected the coal company's
arguments stating that it "must deal . . . with the conditions that exist
at the time the condemnation is asked, and cannot take into account
conditions that may or may not arise or be created thereafter."      Id. at
693.    The court did not, however, hold that future plans for public
property are of no consequence.    Indeed, the court specifically considered
the coal company's future plans, but concluded that the location and
operation of the railroad would not materially interfere with the present
or future use of the land for mining purposes, noting that the coal company
had offered to sell the railroad a right-of-way for three thousand dollars.
Id.


       Recently, the Missouri Supreme Court reaffirmed Hannibal Union Depot
Co. stating:

       [P]roperty already devoted to a public use cannot be taken for
       another public use which will totally destroy or materially
       impair or interfere with the former use, unless the intention
       of the legislature that it should be so taken has been
       manifested in express terms or by necessary implication, mere
       general authority to exercise the power of eminent domain being
       in each case insufficient; . . .


Missouri Cities Water Co. v. Hodge, 878 S.W.2d 819, 821 (Mo. 1994)
(internal citations omitted).   After analyzing several condemnation cases,
the court summarized the law in Missouri when a condemnor attempts to
condemn property already devoted to a public use for another public use:


             The consistent thread of law running through these cases
       is that if any existing public use will not be harmed by a new
       and different public use, condemnation




                                     -8-
        will be allowed under a general form of authority, both uses
        being "necessary" and not necessarily inconsistent or
        destructive.   However, before allowing a municipality or a
        public service entity to take other public property that would
        destroy the previous "necessary" use, specific legislative
        delegation is required.       The rationale being that the
        legislature, not the subsequent condemning authority, is the
        proper entity to decide between mutually conflicting or
        destructive uses of public property.


Id. at 822.     Accord City of Kirkwood v. Union Elec. Co., 896 S.W.2d 946
(Mo. Ct. App. 1995) (statutory authority permitting condemnor to acquire
by eminent domain real estate and personal property for the purpose of
constructing, maintaining, and operating electric light plants, did not
"specifically and expressly state[] that the eminent domain power may be
exercised to acquire an existing `waterworks' or `electrical utility'").


        Union Center contends that two sources provide it with specific
authority    for   the   condemnation.        First,    Union   Center   argues   that
Section 353.130.3 of the Missouri Revised Statutes specifically authorizes
an urban redevelopment corporation to take "[p]roperty already devoted to
public use."4      Section 353.130.3, however, provides only generalized
authority    for   the   condemnation    of    public    property,   and   does    not
specifically authorize Union Center to condemn the property of Amtrak.
Next, Union Center asserts that the ordinances adopted by the City of St.
Louis




        4
         Mo. Rev. Stat § 353.130.3 provides:

             An urban redevelopment corporation may exercise the
        power of eminent domain in the manner provided for
        corporations in chapter 523, RSMo; or it may exercise the
        power of eminent domain in the manner provided by any
        other applicable statutory provision for the exercise of
        the power of eminent domain. Property already devoted to
        a public use may be acquired in like manner, provided
        that no real property belonging to any city, county, or
        the state, or any political subdivision thereof may be
        acquired without its consent.

                                         -9-
provide express legislative authority to Union Center for condemning
property.   Union Center, however, must have such authority from a Missouri
statute.    See Missouri Cities Water Co., 878 S.W.2d at 821, 825; Maryland
Heights Fire Protection Dist. v. Campbell, 736 S.W.2d 383, 386 (Mo. 1987).


     Union Center also argues that the court misapplied Missouri law to
the circumstances of this case by concluding that Amtrak's long-term plan
to build a rail passenger station constituted a public use, and that
Amtrak's commercial rental of portions of the property qualified as an
interim public use.   Union Center points out that there is no approved plan
to build a rail passenger station on the property, the plan having been
cancelled, and that Amtrak itself characterizes the property as "excess
real estate."
     There is, however, evidence that Amtrak has a long-term plan to build
a station on the property.    Edward M. Jenkins, project director for real
estate development for Amtrak, testified in his deposition that there are
ongoing plans to design a passenger station on the property.   Jenkins also
clarified that Amtrak referred to the property as "excess real estate"
because the property "was not at that time in active railroad use, . . .
not that it would never be necessary for railroad use, or that it wasn't
intended for railroad use."      In addition, the City of St. Louis has
proposed a Multi-Modal Transportation Center for the area that would
include a rail passenger station for Amtrak, and the city currently is
considering the property for the proposed center.         In light of this
evidence, the district court did not err in concluding that Amtrak's plan
to use the property as a rail station constitutes a public use.


     Likewise, we are unpersuaded by Union Center's argument that the
district court erred in concluding that the current use of the land
constitutes an interim public use.      Amtrak now leases one of the two
parcels of property to the United States Post Office for




                                    -10-
parking and storage, and the other to an affiliate of Union Center for
parking.   Leasing the property for parking with the long-term intent to
develop the property as a rail station constitutes a public use.   See The
Curators of Univ. of Missouri v. Brown, 809 S.W.2d 64, 65-67 (Mo. Ct.
App.), cert. denied, 502 U.S. 940 (1991); Arata v. Monsanto Chemical Co.,
351 S.W.2d 717, 721 (Mo. 1961).


     We affirm the judgment of the district court.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -11-
