Preseault v. U.S.
| Citation | 66 F.3d 1190 |
| Decision Date | 20 November 1995 |
| Docket Number | 93-5068,Nos. 93-5067,s. 93-5067 |
| Parties | J. Paul PRESEAULT and Patricia Preseault, Individually and as Partners of 985 Associates, Ltd., a Vermont Limited Partnership, and 985 Associates, Ltd., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee, and The State of Vermont, Defendant-Cross-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Appealed from: U.S. Court of Federal Claims; Judge Christine Odell Cook Miller.
Patrick W. Hanifin, New England Legal Foundation, Boston, MA, argued for plaintiffs-appellants.
John K. Dunleavy, Assistant Attorney General, Montpelier, VT, argued for defendant-cross-appellant.
Jeffrey P. Kehne, Attorney, Environmental and Natural Resources Division, Department of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief was Robert L. Klarquist.
Thomas C. Jackson, Beveridge and Diamond, P.C., Washington, D.C., for the Amici Curiae Rails-to-Trails Conservancy and the National Trust for Historic Preservation in the United States.
William Perry Pendley, Mountain State Legal Foundation, Denver, CO, for Amici Curiae Maurice L. and Delores J. Glosemeyer.
Upon consideration thereof, it is
ORDERED that the suggestion to rehear the appeal in banc be, and the same hereby is, accepted; and
IT IS FURTHER ORDERED that the judgment of the court entered on September 14, 1995, and reported in 66 F.3d 1167 (Fed.Cir.1995), is vacated and that the opinion of the court accompanying the said judgment is withdrawn.
Additional briefing and argument are not indicated at this time.
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Preseault v. U.S., s. 93-5067
... ... The first, in 1985, holds that affected property owners (in that case the Preseaults and others) cannot maintain a suit in state court for a declaration of rights concerning the matter at issue before us because the matter is exclusively within the province of the Federal Government pursuant to the provisions of the Interstate Commerce Commission Act, and that the state court is therefore without subject matter jurisdiction. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 ... ...
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Avenal v. U.S., 95-5149
... ... The case before us presents a textbook example of a situation in which the plaintiffs, in the face of established public concerns and while governmental efforts to ... 3 Plaintiffs' heavy reliance, particularly in their reply brief, on the panel opinion in Preseault v. United States, 66 F.3d ... ...
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Lucas v. South Carolina Coastal Council: the categorical and other "exceptions' to liability for Fifth Amendment takings of private property far outweigh the "rule".
...The panel opinion was vacated, the case was taken en banc, and additional briefing and argument was ordered. Preseault v. United States, 66 F.3d 1190 (Fed. Cir. 1995). The Federal Circuit's en banc decision reversed and found a physical taking. 100 F.3d at (271) "It is to the holdings of ou......