Barclay v. U.S.
| Citation | 443 F.3d 1368 |
| Decision Date | 11 April 2006 |
| Docket Number | No. 05-5109.,No. 05-1255.,05-1255.,05-5109. |
| Parties | John BARCLAY, Constance Barclay, Royer Barclay, Althea Barclay, John Amos, Marcia J. Bacon, Ronald J. Bartel, Melvin Bergen, John E. Boyle, Jonathan Ehrlich, Florence Ehrlich, Donald Graumann, Ruben Kliewer, Alvin Kroupa, Barbara Kroupa, Burdett Ledell, Lee Dale Miller, Vernon Minns, Frank A. Mitchell, Mid Kansas Cooperative Association, John F. Opat, Robert Presnell, Janet Regier, Sonja Regier, Don Reinhardt, Janice Reinhardt, Mary J. Rodgers, Darrell Thompson, Robert Turner, Geneva Turnquist, Donald Turnquist, Clark E. Wiebe, and Marlene J. Weber, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee. Renewal Body Works, Inc., Plaintiff-Appellant, v. United States, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Cecilia Fex, Ackerson Kauffman Fex, PC, of Washington, DC, argued for plaintiffs-appellants John Barclay, et al. With her on the brief was Nels Ackerson.
Robert J. Rosati, of Fresno, California, argued for plaintiff-appellant Renewal Body Works, Inc.
Lane M. McFadden, Attorney, Appellate Section, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee in 05-1255. With him on the brief were Kelly A. Johnson, Acting Assistant Attorney General, and Kathryn E. Kovacs and John E. Arbab, Attorneys. John E. Arbab, Attorney, argued for defendant-appellee in 05-5109. With him on the brief were Kelly A. Johnson, Acting Assistant Attorney General, and Kathryn E. Kovacs, Attorney.
Mark F. (Thor) Hearne II, Lathrop & Gage L.C., of St. Louis, Missouri, for amici curiae Sarah Illig, et al. in appeal 05-1255. With him on the brief were J. Robert Sears and Alok Ahuia. Of counsel on the brief were Charles J. Cooper, David H. Thompson, and David M. Lehn, Cooper & Kirk, PLLC, of Washington, DC.
Before NEWMAN, DYK, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
The United States District Court for the District of Kansas and the Court of Federal Claims dismissed several landowners' Fifth Amendment takings claims challenging the operation of the National Trail Systems Act (the "Trails Act"), 16 U.S.C. § 1247(d). Barclay, et al. v. United States, 351 F.Supp.2d 1169 (D.Kan.2004); Renewal Body Works, Inc. v. United States, 64 Fed.Cl. 609 (2005). Applying our decision in Caldwell v. United States, 391 F.3d 1226 (Fed.Cir.2004), cert. denied ___ U.S. ___, 126 S.Ct. 366, 163 L.Ed.2d 72 (2005) (mem.), both the district court and the Court of Federal Claims held that the claims were time-barred because they were filed more than six years after the Surface Transportation Board ("STB") issued the Notices of Interim Trail Use or Abandonment ("NITU"). We agree that Caldwell governs, and we affirm.
By 1990, the nation's interstate railway system had shrunk from its peak of 272,000 miles of track in 1920 to about 141,000 miles of track, and railroads continue abandoning track each year. Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 5, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) ("Preseault I"). As the Supreme Court explained in Preseault I, the purpose of the Trails Act was to preserve unused railroad rights-of-way by converting them into recreational trails. Id. The mechanism is a STB order (a NITU) staying railroad abandonment during the pendency of trail use.
As described in detail in Preseault I, 494 U.S. at 7-8, 110 S.Ct. 914, Preseault v. United States, 100 F.3d 1525, 1537-40 (Fed.Cir.1996) (en banc) ("Preseault II"), and Caldwell, 391 F.3d at 1228-30, in order to abandon a line that is subject to STB jurisdiction, a railroad must apply to the STB under either 49 U.S.C. § 10903 (standard abandonment), or 49 U.S.C. § 10502 (abandonment by exemption).1 All proceedings involved in these appeals were exemption proceedings. Under the Trails Act, the STB may issue a NITU, suspending exemption proceedings for 180 days to allow a third party to enter into an agreement with the railroad to use the right-of-way as a recreational trail. 49 C.F.R. § 1152.29(b)(2) and (d) (2005). If the railroad and the trail operator reach an agreement, "the NITU extends indefinitely to permit interim trail use . . . ." Caldwell, 391 F.3d at 1230; see 49 C.F.R. § 1152.29(d)(1). If no trail use agreement is reached, the NITU converts into an effective notice of exemption, allowing the railroad to "abandon the line entirely and liquidate its interest." Preseault I, 494 U.S. at 7, 110 S.Ct. 914; see Caldwell, 391 F.3d at 1230. While it retains jurisdiction over the right-of-way, the STB may reopen exemption proceedings to substitute a new trail operator, 49 C.F.R. § 1152.29(f), to accept late-filed trail use requests, 49 C.F.R. § 1152.29(e)(1), or to vacate a notice of exemption and issue a NITU when a railroad late files its statement of willingness to negotiate, 49 C.F.R. § 1152.29(g).
In Preseault I, the Court noted but did not resolve the claim that "Congress . . . violated the Fifth Amendment by precluding reversion of state property interests." 494 U.S. at 9, 110 S.Ct. 914; see also id. at 22, 110 S.Ct. 914 (O'Connor, J., concurring) (). In Preseault II, we established that the elimination of adjacent landowners' state law reversionary interests when abandonment is suspended under the Trails Act constitutes a Fifth Amendment taking. 100 F.3d at 1550-52. In Caldwell, we held that such a claim accrues for statute-of-limitations purposes when railroad abandonment proceedings are suspended by the STB's issuance of a NITU. Caldwell, 391 F.3d at 1235. The Barclay appellants (the appellants in No. 05-1255) and Renewal (the appellant in No. 05-5109) challenge both the correctness of the Caldwell decision and its applicability to the particular facts of their takings claims.
The Barclay appellants filed their Trails Act takings claims in the United States District Court for the District of Kansas on April 7, 2004. The complaint alleged that railroad rights-of-way running across the Barclay appellants' property in Kansas were converted into three different recreational trails (the Meadowlark, Sunflower, and Flint Hills trails) pursuant to the Trails Act, and that these conversions constituted Fifth Amendment takings. The government moved to dismiss on the ground that the complaint was not filed within the six year statute of limitations. We decided Caldwell while the government's motion was pending. Because the initial NITUs for all three trails were issued prior to the cutoff date for the statute of limitations,2 the district court dismissed the complaint.
The district court found that the Supreme Court's decisions in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), required tolling the statute of limitations for eleven months, three weeks, and one day, during the pendency of Swisher v. United States, 189 F.R.D. 638 (D.Kan.1999), a class action alleging Trails Act takings in which the Barclay appellants were class members. The district court nevertheless concluded that the action was not timely filed, applying our holding in Caldwell that the claims accrued on issuance of the original NITUs. The district court rejected contentions that replacement NITUs, rather than the initial NITUs, triggered the accrual of their claims for the Flint Hills and Sunflower trails, holding that subsequently issued NITUs covering the same rights of way "merely continued in effect the blocking of the reversionary interests begun by the first NITU" and "could not amount to a separate taking of the property triggering a new claim . . . ." Barclay, 351 F.Supp.2d at 1179. The Barclay appellants timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(2).
Renewal's complaint in the Court of Federal Claims alleged that Trails-Act conversion of a railroad right-of-way running across Renewal's property in California constituted a taking. The STB authorized abandonment effective May 28, 1995, and the putative trail operator filed a trail use request on May 23, 1995. The railroad had removed most of the track and equipment by July 1995, though abandonment had not been consummated under federal law. The STB subsequently issued a NITU on October 23, 1995, and the right-of-way was converted into a trail.
Renewal filed its complaint in the Court of Federal Claims on December 11, 2003. The Court of Federal Claims dismissed the complaint, relying on Caldwell to conclude that "Renewal's claim accrued on October 23, 1995, the day the NITU was issued," well outside the six-year limitations period. Renewal, 64 Fed.Cl. at 615. Renewal timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
We review both the district court's dismissal for want of jurisdiction and the legal conclusions of the Court of Federal Claims without deference. Lion Raisins Inc. v. United States, 416 F.3d 1356, 1362 (Fed.Cir.2005); Applegate v. United States. 25 F.3d 1579, 1581 (Fed.Cir.1994). We agree with the district court and the Court of Federal claims that these actions are time-barred under our decision in Caldwell.3
We explained in Caldwell that "[t]he taking, if any, when a railroad right-of-way is converted to interim trail use under the Trails Act occurs when state law reversionary property interests that would otherwise vest in the adjacent landowners are blocked from so vesting." Caldwell, 391 F.3d at 1233. Abandonment is suspended and the reversionary interest is blocked "when the railroad and trail operator communicate to the STB their intention to...
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