                In the United States Court of Federal Claims
                                           No. 14-37L

                                      (Filed: June 17, 2015)

 **********************************
                                              )
 KENNETH AND NORMA                            )       Rails-to-trails takings case; liability for a
 CAQUELIN,                                    )       taking arising upon issuance of a NITU by
                                              )       the STB
                       Plaintiffs,            )
                                              )
           v.                                 )
                                              )
 UNITED STATES,                               )
                                              )
                       Defendant.             )
                                              )
 **********************************

        Elizabeth McCulley, Stewart, Wald & McCulley LLC, Kansas City, Missouri, for
plaintiffs. With her on the briefs and at the hearing was Thomas S. Stewart, Stewart, Wald &
McCulley LLC, Kansas City, Missouri. With her on the briefs were Steven M. Wald, Stewart,
Wald & McCulley LLC, St. Louis, Missouri, and J. Robert Sears, Baker Sterchi Cowden Rice,
L.L.C., St. Louis, Missouri.

       Julia S. Thrower, Trial Attorney, Natural Resources Section, Environmental and Natural
Resources Division, United States Department of Justice, San Francisco, California, for
defendant. With her on the briefs was John C. Cruden, Assistant Attorney General,
Environmental and Natural Resources Division, United States Department of Justice,
Washington, D.C.

                                     OPINION AND ORDER

LETTOW, Judge.

       In this takings case, a Notice of Interim Trail Use (“NITU”) issued by the federal Surface
Transportation Board (“STB”) authorized conversion of a portion of a railroad line located in
Hardin and Franklin Counties, Iowa and its attendant right-of-way into a public recreational trail
under Section 208 of the National Trails System Act Amendments of 1983, Pub. L. No. 98-11,
§ 208, 97 Stat. 42 (“Trails Act”) (codified at 16 U.S.C. § 1247(d)).1 Plaintiffs, Kenneth and

       1
        The original purpose of the Trails Act “was to preserve unused railroad rights-of-way by
converting them into recreational trails.” Barclay v. United States, 443 F.3d 1368, 1371 (Fed.
Cir. 2006) (citing Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990) (“Preseault I”)).
The Trails Act Amendments in 1983 included new provisions that created a “railbanking”
Norma Caquelin, owned two parcels of land adjacent to the railroad right-of-way on the date of
the STB’s action. For one parcel, the predecessor railroad had acquired its interest by a right of
way deed, and for the other parcel, the railroad had acquired its rights by condemnation.
Plaintiffs allege that the successor railroad held easements limited to railroad purposes that were
exceeded by issuance of the NITU, rendering the government liable for taking plaintiffs’
property without just compensation under the Fifth Amendment. See, e.g., Preseault I, 494 U.S.
at 12 (holding that the Tucker Act, 28 U.S.C. § 1491(a), provided a remedy for an alleged taking
of a property interest in land previously used as a railroad right-of-way that had been transferred
to a public entity for use as a public trail).2 Before the court are plaintiffs’ motion for partial
summary judgment and defendant’s corresponding cross-motion on the issue of liability.

        For the reasons stated, the court concludes that the government is liable to the plaintiffs
for the taking of their property upon the issuance of the NITU that exceeded the scope of the
former easement.

                                        BACKGROUND3

        The parties’ dispute concerns a 10.46-mile strip of land extending from milepost 201.46
near Ackley, Iowa, to milepost 191.0, outside Geneva, Iowa, upon which North Central Railway
Association, Inc. (“North Central Railway”) previously acquired easements for railway purposes
through a series of mesne conveyances. Compl. ¶ 3. A railroad had been constructed by the
Eldora Railroad and Coal Company in 1866 from approximately one mile north of Eldora, Iowa,
to Ackley, Iowa, for the purpose of transporting coal from the Coal Bank Hill area in the Iowa
River valley near Eldora4 to a connection at Ackley with an east-west railroad, then known as the
Dubuque & Sioux City Railroad, which later became part of the Illinois Central Railroad. See
Pls.’ Mem. in Support of Mot. for Partial Summary Judgment on Liability (“Pls.’ Mot.”) at 12-
13, ECF No. 12. Between 1868 and 1870, the line was extended north to Northwood, Iowa, and
south to Marshalltown, Iowa, where it connected with the Chicago & North Western Railroad.

system that allowed rail carriers to transfer management of rail corridors to private or public
entities for interim management as public recreational trails while preserving the ability to
reactivate the abandoned rail corridors for potential future railroad use. See 16 U.S.C. § 1247(d).
A NITU serves as the mechanism that bars railroad abandonment during the pendency of trail-
use negotiations. See Preseault I, 494 U.S. 1.
       2
        The Fifth Amendment provides that “private property [shall not] be taken for public use,
without just compensation.” U.S. Const. amend. V.
       3
         The recitation of factual circumstances that follows is taken from the parties’ pleadings,
their cross-motions for partial summary judgment, and the documentary materials submitted with
the parties’ motions.
       4
        Mining was discontinued many years ago. The locality of the mine now is preserved in
name by the Coal Bank Hill Bridge, which traverses the Iowa River between Fallen Rock State
Preserve to the north and Pine Lake State Park to the south. The bridge is listed on the National
Register of Historic Places.



                                                  2
Id. at 13 & Ex. F (Historic Report (May 9, 2013)). A predecessor extending the rail line, the
Central Railroad of Iowa,5 acquired rights in one of the parcels at issue by a right of way deed,
see id. at Exs. A-2 (Maps of the Line) & J (Right of Way Deed by Henry and Maria Ihde to
Central Railroad of Iowa (filed Apr. 30, 1870)), and rights to the second parcel by a
condemnation, see id. at Ex. K (Latham Condemnation, Franklin County, Iowa (witnessed Aug.
31, 1870)). North Central Railway acquired property rights in the rail corridor in 1989. See
United States’ Cross-Mot. for Summary Judgment and Mem. in Support, and Opp’n to Pls.’ Mot.
for Partial Summary Judgment on Liability (“Def.’s Cross-Mot.”) at 2-3, ECF No. 18. The rail
corridor traverses a rural area of fertile agricultural land. See id. at 2; see also Pls.’ Mot. Ex. I
(Map of Parcels). Plaintiffs are residents and citizens of Cedar Falls, Iowa, who acquired the two
parcels, numbered 1219200016 and 1219200001, in Franklin County, Iowa, on May 17, 2007,
adjacent to the rail corridor. Compl. ¶ 4. Plaintiffs allege that under Iowa law, they gained fee
title up to the centerline of the rail corridor in question. Compl. ¶ 4; see also Pls.’ Mot. at 1-2 &
Exs. G (Warranty Deed (May 11, 2007)), H (Summary of Parcels (Jan. 15, 2015)), & I (Map of
Parcels); Hr’g Tr. 5:21-25 (May 14, 2015).6

        On May 13, 2013, North Central Railway filed a Proposed Abandonment with the STB,7
including a verified notice of exemption pursuant to 49 C.F.R. § 1152.50, seeking to abandon the
railroad line on the grounds that “no local traffic has moved over the [l]ine for at least two years”
and that “no local or overhead traffic has moved over or on the [l]ine for over five . . . years.”
Def.’s Cross-Mot. at 3 (citing Pls.’ Mot. Ex. F, at 4); see also Pls.’ Mot. Ex. A-1 (Notice of
Exemption (May 9, 2013)).8 Under STB regulations, the abandonment exception for the railroad

       5
        The Central Railroad of Iowa was succeeded by the Central Iowa Railway and
eventually became part of the Minneapolis and St. Louis Railway system.
       6
        Further citations to the transcript of the hearing held on May 14, 2015 will omit
reference to the date.
       7
        The STB has authority “to regulate the construction, operation, and abandonment of
most railroad lines in the United States.” Caldwell v. United States, 391 F.3d 1226, 1228 (Fed.
Cir. 2004).
       8
        49 C.F.R. § 1152.50 addresses abandonments and discontinuances of service and
trackage rights that are exempt from the generally applicable procedures outlined under 49
U.S.C. § 10903 and provides, in pertinent part:

       An abandonment or discontinuance of service or trackage rights is exempt if the
       carrier certifies that no local traffic has moved over the line for at least 2 years
       and any overhead traffic on the line can be rerouted over other lines and that no
       formal complaint filed by a user of rail service on the line (or a state or local
       government entity acting on behalf of such user) regarding cessation of service
       over the line either is pending with the Board or any U.S. District Court or has
       been decided in favor of the complainant within the 2-year period. The complaint
       must allege (if pending), or prove (if decided) that the carrier has imposed an
       illegal embargo or other unlawful impediment to service.



                                                  3
line was scheduled to become effective July 5, 2013. See Pls.’ Mot. at 11-12 (citing Ex. C, at 1
(STB Decision and Notice of Interim Trail Use or Abandonment (July 3, 2013))).

        Shortly before the abandonment exception became effective, on June 25, 2013, the City
of Ackley and the Iowa National Heritage Foundation (collectively “the City”) filed a request for
the issuance of a Public Use Condition under 49 U.S.C. § 10905 and a NITU under the Trails
Act. See Pls.’ Mot. Ex. B, at 1 (Pet. for Recons. (dated June 25, 2013 and entered June 26,
2013)); Hr’g Tr. 6:4-11 (noting that “the railroad initially applied purely for abandonment”).9
Two days later, on June 27, 2013, a letter from North Central Railway was entered with the STB
indicating North Central Railway’s agreement with the requested public use condition and
related restrictions and its willingness to negotiate with the Iowa Trails Council regarding
acquisition of the railroad line. See Def.’s Cross-Mot. at 3-4; see also Pls.’ Mot. Ex. E (Letter to
Chief, Section of Administration, Office of Proceedings, STB from counsel for North Central
Railway (dated June 24, 2013 and entered June 27, 2013)). On July 3, 2013, STB accordingly
issued a NITU for the railroad line. Pls.’ Mot. Ex. C (STB Decision and Notice of Interim Trail
Use or Abandonment (July 3, 2013)); see also Def.’s Cross-Mot. at 4; Compl. ¶ 5.10 The NITU
provided a 180-day period during which the railroad could negotiate with the potential trail
group regarding “railbanking and interim trail use” of the corridor. Def.’s Cross-Mot. at 1 (citing
Pls.’ Mot. Ex. C, at 4). After the 180-day period, absent an extension, the NITU would expire by
its own terms, at which point the railroad would be authorized to abandon the line. See Pls.’
Mot. Ex. C, at 5.

        On October 15, 2013, the Iowa Trails Council filed a Trail Use Request with the STB,
and negotiations over a Trail Use Agreement ensued, contemplating that the rail corridor would
be used as a public recreational trail with railbanking for possible future activation as a railroad.
Compl. ¶ 6.11 However, no agreement was reached. See Def.’s Cross-Mot. at 4. On December


49 C.F.R. § 1152.50(b) (emphasis added).
       9
           49 U.S.C. § 10905 provides, in relevant part:

       When the [STB] approves an application to abandon or discontinue . . . , the
       [STB] shall find whether the rail properties that are involved in the proposed
       abandonment or discontinuance are appropriate for use for public purposes,
       including highways, other forms of mass transportation, conservation, energy
       production or transmission, or recreation. If the [STB] finds that the rail
       properties proposed to be abandoned are appropriate for public purposes and not
       required for continued rail operations, the properties may be sold, leased,
       exchanged, or otherwise disposed of only under conditions provided in the order
       of the [STB].

49 U.S.C. § 10905.
       10
            Plaintiffs maintained ownership over the two parcels in question on that date. Compl.
¶ 4.



                                                  4
6, 2013, the Iowa National Heritage Foundation requested a 180-day extension to continue
negotiations, see id. Ex. 1 (Letter to Cynthia T. Brown, STB, from President, Iowa Natural
Heritage Foundation (Dec. 6, 2013)), but North Central Railway did not file a letter indicating its
consent. On December 30, 2013, the NITU expired. See id., see also Hr’g Tr. 29:22 to 30:4. On
March 31, 2014, the railroad consummated abandonment of its line, and the STB’s regulatory
jurisdiction ended. Def.’s Cross-Mot. at 2, 4 & Ex. 3 (STB Decision (May 9, 2014)). On April
24, 2014, North Central Railway notified the STB that it had exercised the authority to fully
abandon the line. Pls.’ Mot. Ex. D (Notice of Consummation (Apr. 24, 2014)).

        On January 16, 2014, plaintiffs filed suit in this court. In their complaint, they allege an
uncompensated taking of their property in contravention of the Fifth Amendment. Specifically,
plaintiffs argue that cessation of railroad activities across the burdened property effected an
abandonment under Iowa law of the railroad-purposes easement, leading to a taking when the
STB prevented plaintiffs from regaining use and possession of their property. Compl. ¶¶ 7-9.
Plaintiffs aver that the government’s action “diminish[ed] the value of the remaining property[]
and [engendered] delay damages based upon the delayed payment of compensation.” Compl.
¶ 10. Plaintiffs request damages equal to the “full fair market value of the property . . . on the
date it was [allegedly] taken, including severance damages and delay damages, and costs and
attorneys’ fees” in addition to “such further relief as [the] [c]ourt may deem just and proper.”
Compl. at 3.

        On January 16, 2015, plaintiffs filed their motion for partial summary judgment on the
issue of liability. See Pls.’ Mot. On March 6, 2015, the government responded with a cross-
motion for partial summary judgment on the same issue. See Def.’s Cross-Mot. These cross-
motions have now been thoroughly briefed and were argued at a hearing held on May 14, 2015.

                                   STANDARD FOR DECISION

        A grant of summary judgment is appropriate if the pleadings, affidavits, and evidentiary
materials filed in a case reveal that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the Court of
Federal Claims (“RCFC”). A material fact is one “that might affect the outcome of the suit.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute exists when the
finder of fact may reasonably resolve the dispute in favor of either party. Id. at 250.

        The moving party bears the burden of demonstrating the absence of any genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, “the
inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable
to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986) (alteration in original) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)). To establish “that a fact cannot be or is genuinely disputed,” a party must “cite[] to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials.” RCFC 56(c)(1)(A). If the record taken as a whole “could not lead a rational


       11
            The complaint incorrectly lists the date as October 15, 2001. Compl. ¶ 6.


                                                  5
trier of fact to find for the non-moving party, there is no ‘genuine issue for trial’” and summary
judgment is appropriate. Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 288 (1968)).

        The same standard applies when the parties have cross-moved for summary judgment.
See Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009). “The fact
that both parties have moved for summary judgment does not mean that the court must grant
judgment as a matter of law for one side or the other.” Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). Rather, the court must evaluate each motion on its
own merits, “taking care in each instance to draw all reasonable inferences against the party
whose motion is under consideration.” Id.

                                      ANALYSIS

        To find a taking giving rise to liability under the Fifth Amendment in a rails-to-trails
case, the court must perform a three-part analysis outlined by the Federal Circuit in Preseault v.
United States, 100 F.3d 1525 (Fed. Cir. 1996) (“Preseault II”):

       (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.

100 F.3d at 1533; see also Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir.
2009); Haggart v. United States, 108 Fed. Cl. 70, 77 (2012); Geneva Rock Prods., Inc. v. United
States, 107 Fed. Cl. 166, 170 (2012); Ingram v. United States, 105 Fed. Cl. 518, 534 (2012);
Longnecker Prop. v. United States, 105 Fed. Cl. 393, 405 (2012); Beres v. United States, 104
Fed. Cl. 408, 423-24 (2012); Jenkins v. United States, 102 Fed. Cl. 598, 605 (2011). To prevail,
plaintiffs must demonstrate that the railroad held only an easement, rather than a fee simple
estate, on their property, and that either the easement did not encompass future use as a public
recreational trail or that it terminated prior to the alleged taking.

                                   A. Easements

         Plaintiffs have satisfied the first element of the Preseault II inquiry because it is
undisputed by the parties that North Central Railway possessed only an easement for railroad
purposes derived from the 1870 Ihde deed and the 1870 Latham Condemnation. See Def.’s
Cross-Mot. at 3 (“For purposes of summary judgment, the United States does not dispute that
under applicable Iowa law and the original deed to the railroad and condemnation proceedings,
the railroad acquired an easement for railroad purposes to the segments of the corridor adjacent


                                                 6
to the two parcels of land owned by the [p]laintiffs on the date the NITU was issued.”); see also
Hr’g Tr. 13:23 to 14:1 (“[O]n the first factor [of the Preseault II inquiry], there is no dispute for
purposes of the summary judgment [motion] that the [p]laintiffs . . . owned fee simple the right-
of-way or the rail corridor.”). “Under Iowa law, deeds are interpreted according to the ordinary
rules of contract construction.” Burgess v. United States, 109 Fed. Cl. 223, 228 (2013) (citing
Wiegmann v. Baier, 203 N.W.2d 204, 206 (Iowa 1972); Maxwell v. McCall, 145 Iowa 687, 124
N.W. 760 (1910); Jackson v. Benson, 54 Iowa 654, 7 N.W. 97 (1880)). Here, the relevant “Right
of Way Deed” from Henry and Maria Ihde granted a right of way to the railroad company for
“construction of said road,” Pls.’ Mot. Ex. J, and thus “conveyed to the railroad only an easement
for railroad purposes,” Macerich Real Estate Co. v. City of Ames, 433 N.W.2d 726, 729 (Iowa
1988). Similarly, the Latham Condemnation was “occasioned by the location of the Central
Railroad of Iowa, over and across the lands of H. E. Latham,” Pls.’ Mot. Ex. K, and led to
acquisition by the railroad of an easement, see Hastings v. Burlington & M.R.R., 38 Iowa 316
(1874) (holding that with a condemnation for railroad purposes, landowners hold fee title and
railroads acquire nothing more than an easement by the condemnation); see also McKinley v.
Waterloo, R.R., 368 N.W.2d 131, 133-35 (Iowa 1985) (same). In sum, the Central Railroad of
Iowa acquired, and the North Central Railway as successor held, an easement while the plaintiffs
retained fee simple title to the parcels. See McClurg Family Farm, LLC v. United States, 115
Fed. Cl. 1, 7-11 (2014) (applying Iowa statutory and judicial precedents); see also Burgess, 109
Fed. Cl. at 230-31 (same); Jenkins v. United States, 102 Fed. Cl. 598, 607 (2011) (same). The
court thus must proceed to the other elements of the Preseault II analysis.

                           B. Limited Use for Railroad Purposes

        In rails-to-trails cases, a taking by the government is established if the railroad acquired
only an easement, the easement was limited to railroad purposes, and the scope of the easement
does not include recreational trail use upon issuance of a NITU. See Ladd v. United States, 630
F.3d 1015, 1019 (Fed. Cir. 2010), reh’g and reh’g en banc denied, 646 F.3d 910 (“It is settled
law that a Fifth Amendment taking occurs in [r]ails-to-[t]rails 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.”) (emphasis added). Plaintiffs
claim that the STB’s issuance of the NITU exceeded the scope of the easement by blocking their
reversionary interest and contemplating conversion of the railway into a recreational trail. Pls.’
Mot. at 19. Therefore, plaintiffs contend that they are entitled to compensation for a temporary
taking of their property. Id. at 2.

        The government acknowledges that the easements granted to North Central Railway were
limited to railroad purposes and did not include recreational trail use. See, e.g., Def.’s Cross-
Mot. at 15. However, it contends that the question of whether trail use exceeds the scope of the
railroad’s easement is “irrelevant” under the circumstances presented because the NITU was in
effect for only six months and expired on its own terms, and because no interim trail-use
agreement was reached. Def.’s Cross-Mot. at 16; see also Hr’g Tr. 14:6-9. The government
emphasized that “there was no actual non-railroad use that occurred during the time that the
NITU was effective.” United States’ Reply in Support of Cross-Mot. for Summary Judgment
(“Def.’s Reply”) at 1, ECF No. 20. Therefore, in the government’s view, “[a]lthough the
issuance of the NITU may have delayed the railroad’s abandonment of an easement . . . , that



                                                 7
delay did not defeat [p]laintiffs’ interests nor burden those interests in a manner that rises to the
level of a compensable taking.” Def.’s Cross-Mot. at 15.

         In support of its position, the government largely relies upon, but seeks to distinguish,
the Federal Circuit’s decisions in Caldwell, 391 F.3d 1226, and Barclay, 443 F.3d 1368, in
which the court of appeals addressed the question of the proper date of accrual in Fifth
Amendment rails-to-trails actions. In Caldwell, the court held that because the issuance of a
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,” the proper date of accrual of a takings claim is the date of the NITU issuance. 391
F.3d at 1233-34 (emphasis in original); see also Def.’s Cross-Mot. at 11-12. The court
explained:

       [T]he NITU operates as a single trigger to several possible outcomes. It may, as
       in this case, trigger a process that results in a permanent taking in the event that a
       trail use agreement is reached and abandonment of the right-of-way is effectively
       blocked. . . . Alternatively, negotiations may fail, and the NITU would then
       convert into a notice of abandonment. In these circumstances, a temporary taking
       may have occurred. It is not unusual that the precise nature of the takings claim,
       whether permanent or temporary, will not be clear at the time it accrues.

Caldwell, 391 F.3d at 1234 (citing Preseault II, 100 F.3d at 1552; Toews v. United States, 376
F.3d 1371, 1376 (Fed. Cir. 2004)). In Barclay, the court of appeals reaffirmed this resulting
“bright-line rule” by holding that the proper date of accrual for several landowners’ claims was
the date of the NITU issuance. 443 F.3d at 1378.

        The government attempts to distinguish Caldwell and Barclay by observing that while in
those cases the STB’s issuance of a NITU had led to an interim trail use agreement, no such
agreement was reached here. See Def.’s Cross-Mot. at 11-12. In addition, the government
underscores that in Caldwell, the Federal Circuit employed noncommittal language and
specifically left open the question of whether issuance of a NITU itself was sufficient to trigger a
temporary takings claim, noting that, “[t]his case does not involve, and we do not herein address,
whether the issuance of the NITU in fact involves a compensable temporary taking when no
agreement is reached.” 391 F.3d at 1234 n.7. Correlatively, the government points out that the
court’s decision in Barclay also did not address a temporary takings claim. See 443 F.3d 1368.
On this basis, the government avers that whether the issuance of a NITU gives rise to a
compensable takings claim where no trail agreement is reached and the NITU is not extended is
an open question and urges the court to find that the United States is not liable for a taking
because “there was no transfer of the railroad’s easement” and therefore “no resulting trail use.”
Def.’s Cross-Mot. at 16; see also Hr’g Tr. 22:1-7.

         In the Federal Circuit’s decision in Ladd, 630 F.3d 1015, the government raised, and the
court of appeals rejected, virtually identical arguments to those the government is now making.
Ladd concerned landowners who owned tracts adjacent to a railway in Cochise County, Arizona.
The landowners brought a Fifth Amendment takings action against the government after the STB
issued a NITU suspending abandonment proceedings by the local railway. Id. at 1017-18. After
no trail use agreement was reached, the negotiating period was extended. Id. At the time that


                                                  8
plaintiffs’ claims were first considered on the merits, the NITU was set to expire and trigger the
consummation of abandonment of the easement in the following year. The trial court concluded
that no taking had occurred, reasoning that “[a] physical taking cannot have occurred in these
circumstances, where neither the NITU nor another aspect of the federal abandonment process
has resulted in construction of a trail for public use.” Ladd v. United States, 90 Fed. Cl. 221, 226
(2009), rev’d and remanded, 630 F.3d 1015. The court justified its position by explaining that
“[i]ssuance of a NITU cannot be a physical taking where the landowners have not suffered a
physical invasion of the property in which they claim interests.” Id.

       The Federal Circuit reversed. In doing so, the court stated that it found the government’s
attempts to distinguish Caldwell and Barclay to be unpersuasive, reasoning:

       In Caldwell and Barclay, we indicated that physical occupation is not required.
       See, e.g., Barclay, 443 F.3d at 1374 (“The barrier to reversion is the NITU, not
       physical ouster from possession.”). Indeed, the Barclay appellants’ claim
       accrued while the railroad was still operating. Id. “In general, a takings claim
       accrues when ‘all events which fix the government’s alleged liability have
       occurred and the plaintiff was or should have been aware of their existence.’”
       Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000). Because according
       to our precedent, 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. Hence it is irrelevant that no trail use agreement has been reached and
       that no recreational trail has been established.

Ladd, 630 F.3d at 1024 (emphasis added).12

        The Federal Circuit’s decision in Ladd is dispositive here. The court specifically
addressed and contemplated the circumstance where a NITU is issued and no trail use agreement
is reached. See Ladd, 630 F.3d at 1025.13 As the court of appeals specified, the action by the
government that gives rise to a takings claim is the issuance of a NITU by the STB, regardless of
the events that follow. Id. at 1025. The court stated that “where no trail use agreement is
reached, the taking may be temporary. . . . However, physical takings are compensable, even
when temporary.” Id. (citing Caldwell, 391 F.3d at 1234; Barclay, 443 F.3d at 1348; Hendler v.
United States, 952 F.2d 1364, 1376 (Fed. Cir. 1991) (“A taking can be for a limited term—what

       12
         The Federal Circuit in Ladd also observed that holding otherwise could potentially
deprive landowners of the opportunity to file takings claims entirely if the STB allowed
extensions to continue negotiations beyond the six-year statute of limitations period following
the issuance of a NITU. Ladd, 630 F.3d at 1024 (“[L]andowners whose property is subject to a
NITU would be left in the untenable position of having the six-year limitations period running—
and even expiring—before they could file suit.”).
       13
         On remand, the trial court in Ladd awarded compensation for a temporary taking. Ladd
v. United States, 108 Fed. Cl. 609 (2012), aff’d in relevant part and rev’d in a separate respect,
713 F.3d 648 (Fed. Cir. 2013).



                                                 9
is ‘taken’ is, in the language of real property law, an estate for years, that is, a term of finite
duration as distinct from the infinite term of an estate in fee simple absolute.”); Yuba Natural
Res., Inc. v. United States, 821 F.2d 638, 641-42 (1987)).14 In Ladd, the court concluded that
“the duration of the taking goes to damages, not to whether a compensable taking has occurred.”
Id.15



       14
          These statements by the court squarely refute the government’s assertion “that the
opinions in Caldwell and Barclay and Ladd don’t really address or opine on whether an issuance
of a NITU involves a compensable temporary taking when no agreement is reached.” Hr’g Tr.
28:1-5.
           The government’s position was also rejected by a judge of this court in Farmers
Cooperative Co. v. United States, 98 Fed. Cl. 797 (2011), recons. denied, 100 Fed. Cl. 579
(2011), which involved the issuance of a NITU where the rail corridor never was converted to
use as a recreational trail. The court reasoned that “[b]ecause the issuance of the NITU by the
STB . . . forestalled the abandonment process in favor of the potential conversion of the railroad
right-of-way to a use outside the scope of the original easement, it blocked the vesting of
[p]laintiffs’ state law reversionary interests” and therefore constituted a taking. Id. at 805 (citing
Ladd, 630 F.3d at 1023) (in turn citing Caldwell, 391 F.3d at 1233-34).
       15
          The government argues that unlike the circumstances in Ladd and Farmers Cooperative
in which “the interference with the plaintiffs’ ‘reversionary’ interests was for a period of five to
six years,” in this case “the NITU was in place for only 180 days” and “the railroad did
consummate abandonment . . . shortly after the NITU expired.” Def.’s Reply at 5; see also Hr’g
Tr. 12:7-15. The government suggests that any interference was “minimal” given that the
railroads had held the easement “for over 140 years.” Def.’s Reply at 5; see also Hr’g Tr. 25:4-7
(“[I]f there is a temporary taking, you have to at least go through a balance of factors in
establishing whether that taking is compensable.”); Hr’g Tr. 27:5-7 (“[A]fter 140-plus years of a
railroad track in place, it was probably not prime agricultural land.”). The government’s
arguments are unavailing because they address the issue of damages rather than liability. In that
respect also, the government’s offhand comment about value may not be accurate as an
evidentiary matter because the surrounding land is sufficiently productive that neighboring
farmers “ban[d]ed together and bought [the rail easement to] their own land back.” Hr’g Tr.
30:2-3.
           Applying Ladd to the facts at issue is also consistent with Supreme Court precedent on
the subject. In Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012), the
Supreme Court held that government-induced flooding of temprorary duration may be
compensable. The Court specified that “we have rejected the argument that government action
must be permanent to qualify as a taking.” Id. at 519. Similarly, in Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982), the Court observed that an easement of passage of
cables, although not a permanent occupation of land, constitutes a physical invasion that “is a
government intrusion of an unusually serious character.” Id. at 433 (citing Kaiser Aetna v.
United States, 444 U.S. 164 (1979) (involving the government’s imposition of a navigational
servitude requiring public access to a landowner’s pond)). The Supreme Court has also specified
that once the government’s actions have “worked a taking of all use of property, no subsequent
action by the government can relieve it of the duty to provide compensation for the period during


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        Accordingly, in light of the termination of the NITU, the court finds that a temporary
taking occurred.

                             C. Ownership of the Underlying Fee

        A qualifying plaintiff must have owned pertinent property on the date of the taking. The
date of the taking is identified as the date “when state law reversionary property interests that
would otherwise vest in the adjacent landowners are blocked from so vesting. . . . [T]his occurs
when the railroad and trail operator communicate to the STB their intention to negotiate a trail
use agreement and the agency issues an NITU that operates to preclude abandonment.”
Caldwell, 391 F.3d at 1233; see also Ladd, 630 F.3d at 1025; Barclay, 443 F.3d at 1373 (“Thus,
a Trails Act taking begins and a takings claim accrues, if at all, on issuance of the NITU.”).
Therefore, the date of the taking is July 3, 2013, when the NITU was issued. The government
has not disputed that plaintiffs then owned the adjacent property and the underlying fee to the
centerline of the rail corridor.

                                         CONCLUSION

        For the reasons stated, the government is liable for the taking of plaintiffs’ property on
July 3, 2013, upon issuance of the NITU. Accordingly, plaintiffs’ motion for summary judgment
on liability is GRANTED. The government’s cross-motion for summary judgment on the same
issue is DENIED.

       The court requests that the parties file a joint status report by July 16, 2015, providing a
plan and schedule for addressing damages.

       It is so ORDERED.


                                                   s/ Charles F. Lettow
                                                   Charles F. Lettow
                                                   Judge




which the taking was effective.” First English Evangelical Lutheran Church of Glendale v. Los
Angeles Cnty., Cal., 482 U.S. 304, 321 (1987).



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