         NOTE: This opinion is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

 NORMA E. CAQUELIN, KENNETH CAQUELIN,
FOR THEMSELVES AND AS REPRESENTATIVES
OF A CLASS OF SIMILARLY SITUATED PERSONS,
              Plaintiffs-Appellees

                           v.

                  UNITED STATES,
                 Defendant-Appellant
                ______________________

                      2016-1663
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00037-CFL, Judge Charles F.
Lettow.
               ______________________

                Decided: June 21, 2017
                ______________________

    ELIZABETH MCCULLEY, Stewart Wald & McCulley,
LLC, Kansas City, MO, argued for plaintiffs-appellees.
Also represented by THOMAS SCOTT STEWART.

    ERIKA KRANZ, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellant. Also represented
2                                CAQUELIN   v. UNITED STATES



by JOHN C. CRUDEN, KATHERINE J. BARTON, MATTHEW
LITTLETON.

     ROBERT THOMAS, Damon Key Leong Kupchak
Hastert, Honolulu, HI, for amici curiae Southeastern
Legal Foundation, Property Rights Foundation of Ameri-
ca, Inc.

    MARK F. HEARNE, II, Arent Fox, LLP, Clayton, MO,
for amici curiae National Association of Reversionary
Property Owners, National Cattlemen’s Beef Association,
Public Lands Council. Also represented by MEGHAN SUE
LARGENT, LINDSAY S.C. BRINTON, STEPHEN SHARP DAVIS.

    ANDREA CAROL FERSTER, Rails-to-Trails Conservancy,
Washington, DC, for amicus curiae Rails-to-Trails Con-
servancy.
               ______________________

Before PROST, Chief Judge, TARANTO and HUGHES, Circuit
                        Judges.
PER CURIAM.
    This rails-to-trails case involves property owned by
the Caquelins that, in 2013, was subject to a railroad-held
easement limited to railroad use. The railroad or its
predecessors had held the easement since 1870. It is
undisputed that the easement would terminate when the
railroad ceased using the easement for its stated purpose
and abandoned the line.
    In May 2013, the railroad filed a Notice of Exemption
with the Surface Transportation Board, seeking the
Board’s permission to abandon the line and invoking a
regulatory exemption from the usual rail-use-related
standards that the Board applies in determining whether
to grant such permission.        J.A. 24–76; 49 C.F.R.
§ 1152.50. To support its invocation of the exemption, the
CAQUELIN   v. UNITED STATES                              3



railroad certified that it had not run trains over the line
for several years. J.A. 27. The railroad stated that the
abandonment would “be consummated on or after the
effective date of a Board decision” on the abandonment
exemption. J.A. 26.
    On July 3, 2013, two days before the abandonment
exemption was scheduled to take effect, the Board issued
a Notice of Interim Trail Use or Abandonment (NITU)
under 16 U.S.C. § 1247(d) and 49 C.F.R. § 1152.29, which
prohibited the railroad from abandoning the rail line for a
period of 180 days. 1 The barring of abandonment blocked
reversion of the easement interest to the Caquelins, i.e.,
the lifting of the burden of the easement from their own-
ership. As relevant here, the Board’s stated reason for its
action was to allow the railroad to negotiate with two
entities—not including the Caquelins—that had jointly
proposed to create and manage a recreational trail on the
land. The Board’s action was not based on any foreseea-
ble continuation or resumption of railway use—the NITU
authorized the railroad to salvage track and related
materials even during the 180-day period, J.A. 83, and
granted the railroad authority to abandon the line if the
180-day period ended with no extension or trail agree-
ment, J.A. 82, 84.
     If the railroad and potential trail sponsors had
reached a proper trail agreement while the NITU was in
effect, the Caquelins would have been blocked from re-
gaining an unburdened interest in their land during the
life of the trail use. See 49 U.S.C. § 1247(d); Toews v.
United States, 376 F.3d 1371, 1381 (Fed. Cir. 2004). In its


   1    In other cases, we are informed, the Board has re-
peatedly extended the 180-day period, barring termina-
tion of easements for years. See, e.g., Wis. Cent. Ltd. No.
AB-303 (Sub-No. 18X), 2010 WL 738577 (Surface Transp.
Bd. Mar. 4, 2010).
4                               CAQUELIN   v. UNITED STATES



briefing to this court, the government does not deny that
such a trail agreement would properly be deemed a cate-
gorical taking—without a multi-factor analysis looking
beyond the fact that the government-authorized trail use
exceeded the scope of the easement. See Government’s
Br. 20–51. 2 On that premise, the NITU would block
reversion of the railroad easement to the landowners in
order to secure time to arrange what would be a categori-
cal taking where, as here, the easement was limited to
railway use. See Toews, 376 F.3d at 1375–82.
     In this case, the 180-day period was never extended,
and no trail agreement was reached. The railroad com-
pleted its abandonment of the line a few months after the
NITU lapsed. And the easement burdening the Caquel-
ins’ ownership of the land was lifted.
   The Caquelins sued the United States under the
Tucker Act, alleging that the temporary blocking of rever-


    2   The Supreme Court has used “categorical taking”
to refer to several types of government actions—such as
certain land-interest appropriations or transfers, “physi-
cal” appropriations of personal property or occupations of
real property by the government or its designee, or impo-
sitions of public-access requirements—that have been
deemed takings based on “per se” or relatively “bright-
line” rules. Contrasted are other government actions—
such as certain police-power regulations restricting own-
ers’ particular uses of their land—for which a takings
determination requires a more complex multi-factor
analysis. See, e.g., Horne v. Dep’t of Agriculture, 135 S.
Ct. 2419, 2425–28 (2015); Koontz v. St. John’s River Water
Mgmt. Dist., 133 S. Ct. 2586, 2598–600 (2013); Tahoe-
Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
535 U.S. 302, 321–24 (2002); Dolan v. City of Tigard, 512
U.S. 374, 383–86 (1994); Nollan v. Cal. Coastal Comm’n,
483 U.S. 825, 831–35 (1987).
CAQUELIN   v. UNITED STATES                              5



sion of the easement interest constituted a compensable
temporary taking. The Court of Federal Claims held, on
summary judgment, that a categorical taking had oc-
curred, relying on this court’s decision in 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).
See Caquelin v. United States, 121 Fed. Cl. 658 (2015).
The parties agreed on the amount of compensation.
    The United States appeals. It does not argue that, as
a matter of law, no taking occurs unless a trail agreement
is reached. Nor does the government dispute that if a
temporary taking occurred, it began on July 3, 2013, the
date of the NITU. Rather, the government argues that
the 180-day blocking of reversion was not a categorical
taking but instead calls for a multi-factor takings analy-
sis. It invokes the general “regulatory takings” frame-
work set forth to govern land-use restrictions in Penn
Central Transportation Co. v. City of New York, 438 U.S.
104, 124 (1978), and the temporary-takings analysis set
forth to govern the repeated controlled floodings, for
water-management purposes, at issue in Arkansas Game
& Fish Commission v. United States, 568 U.S. 23, 38–40
(2012)—without indicating whether those standards differ
materially. 3 Recognizing the difficulty of adopting such



   3     In Arkansas Game, the United States argued to
the Supreme Court that, if the repeated, temporary
flooding at issue could constitute a taking at all, the
determination must be made under a multi-factor analy-
sis, for which it cited Penn Central. Br. for Respondent,
Ark. Game, 133 S. Ct. 511, 2012 WL 3680423, at *38, *42,
*44 (No. 11-597). The government argued that cases in
which “the government itself (or its designee) physically
occupied private property” were “inapt,” reasoning that “it
is not sensible to regard the water [entering the down-
stream lands during the flooding] as being an occupation
6                                CAQUELIN   v. UNITED STATES



an approach while Ladd remains controlling precedent,
the government’s principal argument is that Ladd should
be overruled en banc. 4
    We think it clear that application of this court’s deci-
sion in Ladd would lead to affirmance of the Court of
Federal Claims’ judgment in this case. We also think that
this panel cannot declare Ladd no longer to be good law
based on the Supreme Court’s post-Ladd decision in



by the government” and “any flooding of a downstream
riparian parcel is typically the consequence of government
action outside, and not specific to, that parcel, much like
general government regulation of the use of private
property.” Id. at *40–41. The Supreme Court ruled that
a multi-factor approach was required “[w]hen regulation
or temporary physical invasion by government interferes
with private property,” 568 U.S. at 38, and it remanded
for application of the approach, id. at 37–40. On remand,
this court applied the multi-factor approach and affirmed
the Court of Federal Claims’ finding of a taking. Ark.
Game & Fish Comm’n v. United States, 736 F.3d 1364
(Fed. Cir. 2013).
     4  Ladd relied on Caldwell v. United States, 391 F.3d
1226 (Fed. Cir. 2004), which held that a takings claim
accrues, and the six-year statute of limitations begins to
run, when an NITU issues, so that a takings claim filed
more than six years after the NITU is out of time. Id. at
1233. After Caldwell adopted that rule, the government
defended it and relied on it to secure dismissals of a
number of takings suits as untimely. See, e.g., Barclay v.
United States, 443 F.3d 1368 (Fed. Cir. 2006). The pre-
sent case does not involve an accrual or timeliness ques-
tion. But the government argues that, if the Ladd ruling
as to the merits of the takings challenge is deemed to
follow from Caldwell’s accrual ruling, as Ladd held, then
this court should overrule Caldwell as well as Ladd.
CAQUELIN   v. UNITED STATES                               7



Arkansas Game, on which the government heavily relies.
Nevertheless, in requiring a multi-factor analysis of the
repeated floodings at issue as “temporary physical inva-
sion[s],” 568 U.S. at 38, Arkansas Game does raise ques-
tions about Ladd.       Those questions supplement the
questions raised (including by the author of Ladd) when
Ladd was decided. See Ladd v. United States, 646 F.3d
910 (Fed. Cir. 2011) (Gajarsa, J., joined by Moore, J.,
dissenting from denial of rehearing en banc). En banc
review may be warranted to address those questions, in
light of the full range of Supreme Court decisions, and to
decide whether Ladd should remain governing precedent.
In so stating, we neither state a conclusion that en banc
review is warranted nor prejudge the merits of the tak-
ings issues.
    Before deciding whether en banc review is worth-
while, we think, it is advisable to have the litigation
record in this case further developed. Perhaps en banc
review might not be warranted, for example, if an appro-
priate multi-factor analysis were to lead to the same
conclusion as the one Ladd drew—that an NITU like the
one here constitutes a taking for reasons common to many
rails-to-trails cases (leaving only the question of proper
compensation, which is not at issue here). In any event,
this court’s further consideration of what the proper
takings framework is, whether Ladd or something else,
would benefit from a fully developed record applying the
multi-factor analysis the government urges as a substi-
tute for Ladd. Such a record would give the court a
concrete basis for comparison of the competing legal
standards as applied.
    Accordingly, we vacate the judgment and remand for
development of such a record. On remand, the Court of
Federal Claims should conduct such proceedings—pre-
trial, trial, and post-trial—as are necessary for an adjudi-
cation of how the government-advanced multi-factor
analysis applies in this case, on the assumption that such
8                                CAQUELIN   v. UNITED STATES



an analysis is the governing standard. An opinion con-
taining findings of fact and conclusions of law under such
a standard—and also discussing what facts invoke which
of the Supreme Court’s standards—would sharpen the
focus of appellate consideration of the issues raised by the
government in this case. We recognize that, under Ladd
as the current governing law in this court, it does not
appear that this remand could result in a different Court
of Federal Claims judgment. We vacate and remand
because a more fully developed record will materially aid
this court in deciding how ultimately to resolve the merits
of the takings issues presented.
    No costs.
                VACATED AND REMANDED
