Balagna v. United States
| Decision Date | 05 October 2017 |
| Docket Number | No. 14-21L,No. 16-405L (Consolidated),14-21L,16-405L (Consolidated) |
| Parties | ELLEN AND MARK S. BALAGNA, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. ROBERT AND SUSAN BATTERTON, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. Claims Court |
Keywords: Fifth Amendment's Takings Clause; Rails-To-Trails Conversion; Notice of Interim Trail Use; 26 U.S.C. § 1247(d); Crossing Rights; Municipal Corporation; Compensable Taking.
Mark F. ("Thor") Hearne, II, Arent Fox LLP, Washington, DC, with whom were Meghan S. Largent, Lindsay S.C. Brinton, and Stephen S. Davis, for Plaintiffs.
Sarah Izfar, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, U.S. Department of Justice, Washington, DC, with whom was Jeffrey H. Wood, Assistant Attorney General, for Defendant.
These consolidated rails-to-trails takings cases involve sixty-seven properties abutting a 14.5-mile railroad right-of-way in Fulton County, Illinois. The right-of-way is currently the subject of a Notice of Interim Trail Use (NITU) issued by the Surface Transportation Board (STB), although no final trail use agreement has been reached.
Before the Court are cross-motions for summary judgment regarding several issues. First, the government has moved for summary judgment with respect to two of the properties, contending that the railroad owns the relevant portions of those properties in fee simple. Second, the government has moved for summary judgment with respect to any landowners' claims that the issuance of the NITU resulted in a taking of their right to access properties (or portions of properties) that may be reached only by crossing the right-of-way. Finally, the government has moved for summary judgment with respect to the claims of two plaintiffs, the City of Canton (City) and the Village of Norris (Village), which are Illinois municipal corporations rather than private landowners. The landowners oppose all the government's motions and have cross-moved for summary judgment as to the issues raised in the government's motion.
As discussed below, under Illinois state law, the railroad owns the part of the railroad corridor crossing the two landowners' properties in fee simple. Thus, the government is entitled to summary judgment as to those two properties. Further, under Illinois law, the landowners are guaranteed a right to access their properties, and the issuance of the NITU does not affect those state law crossing rights. Finally, the Court concludes that no compensable taking of the City's or the Village's property has occurred under the particular circumstances of this case. The government is thus entitled to summary judgment as to those claims as well.1
Since the 1850s, the Burlington Northern Santa Fe Railroad Company (BNSF) or its predecessors-in-interest has held an interest in certain properties along a 14.5-mile right-of-way in Fulton County, Illinois. See Joint Stips. Regarding Title Matters at 1-2 & n.1, ECF No. 55. The parties agree that for most of the properties, BNSF held an easement granting it, at minimum, a right-of-way to use the burdened land for railroad purposes. See id.; see also Pls.' Resp. at 4.
On January 4, 2013, pursuant to 49 C.F.R. § 1152.50, BNSF filed an application before the STB to abandon the right-of-way.3 See Pls.' Reply Ex. 6 at 79, ECF No. 126-1. On January 23, 2013, pursuant to 26 U.S.C. § 1247(d) and 49 C.F.R. § 1152.29(d), the Canton Park District (CPD) filed a Request for Public Use Condition and Request for Interim Trail Use with the STB, indicating its willingness to assume financial responsibility for the corridor.4 See Pl.'s Reply Ex. 7 at 139-41, ECF No. 126-2.
After BNSF agreed to negotiate an interim trail use/rail banking agreement with CPD, the STB issued an NITU for the right-of-way on May 24, 2013. See Pl.'s Reply Ex. 10 at 148. The STB has extended the deadline for negotiating a final trail use agreement several times, and the current deadline is November 22, 2017. See Landowners' Mot. to Suppl. Their Resp. to the Gov't's Mot. for Summ. J. With New Relevant Fact Ex. 1, ECF No. 118-1; see also Decision, BNSF Railway Company—Abandonment Exemption—In Fulton County, Ill., No. AB-6-486-X (STB June 2, 2017). Thus, no final trail use agreement yet exists.
Plaintiffs Ellen and Mark Balagna own land traversed by the BNSF right-of-way. Compl. ¶¶ 25-26, ECF No. 1; id. Ex. 5, ECF No. 1-5. On January 8, 2014, they filed a complaint in this Court seeking just compensation under the Fifth Amendment's TakingsClause based on the issuance of the NITU. Compl. ¶¶ 44-51. Specifically, they alleged that the NITU had:
(a) forestalled or taken from [them] their state law "reversionary" right to their property; (b) appropriated an easement across [their] property for an interim public-access recreational trail[;] and (c) appropriated an easement for a potential future railroad right-of-way across [their] property and . . . taken from [them] the rights they enjoy under Illinois law to the exclusive use and physical occupation of their land.
Id. ¶ 39; see also id. ¶¶ 44-51. The Balagnas filed their complaint as a class action on behalf of themselves and all similarly situated land owners. Id. ¶ 29. On September 9, 2014, upon the parties' stipulation, the Court certified an opt-in class under Rule 23(c)(1) of the Rules of the Court of Federal Claims (RCFC). Class Cert. Order at 2, ECF No. 26. The class may consist of:
Among the members of the class are Deborah and Gregor Herberger and the Jenine C. Hinton Trust (Trust). See 4th Am. Compl. ¶¶ 58-61, 82-85, ECF No. 36; The United States' Mot. for Summ. J. & Mem. in Supp. (Def.'s Mot.) at 13, ECF No. 90. The properties that the Herbergers and the Trust now own once belonged to Ms. Mary Snider. See Pl.'s Resp. at 30; id. Ex. 19. In 1858, BNSF's predecessor-in-interest obtained a condemnation order for the portion of the right-of-way crossing Ms. Snider's property. See Pls.' Reply Ex. 5 at 64, 66, 71.
The City of Canton is also a member of the class in the Balagna action. See 4th Am. Compl. ¶¶ 179-81. It owns property that abuts and underlies the right-of-way. Id.; see also id. Ex. 43, ECF No. 36-4 ().
Robert and Susan Batterton also own land traversed by the BNSF right-of-way. See Compl. ¶ 26, Batterton, No. 16-405L, ECF No. 1. On March 30, 2016, the Battertons and five co-plaintiffs filed a complaint in this Court. See id. at 1-3. Like the Balagna plaintiffs, the Batterton plaintiffs seek just compensation under the Fifth Amendment's Takings Clause based on the issuance of the NITU. Id. ¶¶ 63, 67-75.
The Village of Norris is one of the plaintiffs in the Batterton action. Id. ¶¶ 44-48. It is a municipal corporation that owns property that abuts and underlies the right-of-way. See id.; see also id. Ex. 9, ECF No. 1-9 ().
Because the cases involve common questions of law and fact, the Court consolidated the actions on September 8, 2016. See Order Consolidating Cases, Batterton, No. 16-405L, ECF No. 12.
On August 5, 2016, before the Court consolidated the cases, the government filed a motion for partial summary judgment as to the City of Canton's claims. ECF No. 73. On September 20, 2016, after the Court consolidated the cases, the government similarly moved for partial summary judgment as to the Village of Norris's claims. ECF No. 81. The City and the Village filed a combined response on September 23, 2016. ECF No. 82. The government filed a reply on October 11, 2016. ECF No. 83. The Court then requested supplemental briefing from the parties. See Suppl. Briefing Order, ECF No. 92.
In the meantime, the government filed its motion for partial summary judgment as to the additional liability issues on December 15, 2016. ECF No. 90. On March 6, 2017, the Court then stayed consideration of the government's motions as to the City and the Village pending completion of briefing on the government's additional motion. Order, ECF No. 107. The landowners filed their cross-motion on March 9, 2017. ECF No. 110. The Court granted several extensions of time with respect to the parties' responses and replies, see ECF Nos. 113, 121, 124, and heard oral argument on all the pending motions on September 20, 2017.
The Tucker Act grants the Court of Federal Claims jurisdiction to "render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). The Fifth Amendment's Takings Clause provides that "private property [shall not] be taken for public use, without just compensation." U.S. Const. amend. V. Accordingly, "[i]f there is a taking, the claim is 'founded upon the Constitution' and within the jurisdiction of the [Court of Federal Claims] to hear." Preseault v. Interstate Commerce Comm'n (Preseault I), 494 U.S. 1, 12 (1990) (quoting United States v. Causby, 328 U.S. 256, 267 (1946)).
It is well-established that the issuance of an NITU pursuant to 16 U.S.C. § 1247(d) and 49 C.F.R. § 1152.29(d) may give rise to a compensable taking. Id. at 13-14; see also ...
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