Barclay v. U.S.

• Decision Date: 29 December 2004
• Docket Number: No. 04-1119-WEB.,04-1119-WEB.
• Citation: 351 F.Supp.2d 1169
• Parties: John and Constance BARCLAY; Royer and Althea Barclay; John Amos; Marcia J. Bacon; Ronald J. Bartel; Melvin Bergen; John E. Boyle; Jonathan and Florence Ehrlich; Donald Graumann; Ruben Kliewer; Alvin and Barbara Kroupa; Burdett Ledell; Lee Dale Miller; Vernon Minns; Frank A. Mitchell; Mid Kansas Cooperative Association; John F. Opat; Robert Presnell; Janet and Sonja Regier; Don and Janice Reinhardt; Mary J. Rodgers; Darrell Thompson; Robert Turner; Geneva and Donald Turnquist; Clark E. Wiebe; and Marlene J. Weber, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

351 F.Supp.2d 1169

John and Constance BARCLAY; Royer and Althea Barclay; John Amos; Marcia J. Bacon; Ronald J. Bartel; Melvin Bergen; John E. Boyle; Jonathan and Florence Ehrlich; Donald Graumann; Ruben Kliewer; Alvin and Barbara Kroupa; Burdett Ledell; Lee Dale Miller; Vernon Minns; Frank A. Mitchell; Mid Kansas Cooperative Association; John F. Opat; Robert Presnell; Janet and Sonja Regier; Don and Janice Reinhardt; Mary J. Rodgers; Darrell Thompson; Robert Turner; Geneva and Donald Turnquist; Clark E. Wiebe; and Marlene J. Weber, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. 04-1119-WEB.

United States District Court, D. Kansas.

December 29, 2004.

Cecilia Fex, Elaine A. Panagakos, Ackerson, Kauffman and Fex, PC, Washington, DC, Jeffrey R. Emerson, Foulston, Conlee, Schmidt & Emerson, LLP, Wichita, KS, for Plaintiffs.

G. Evan Pritchard, U. S. Department of Justice, Washington, DC, for Defendant.

Memorandum and Order

WESLEY E. BROWN, Senior District Judge.

The plaintiffs allege that they are fee simple owners of properties in Kansas which are subject to easements for railroad purposes. According to the complaint, these railroad rights-of-way have now been converted to recreational trial use pursuant to a federal "rails to trails" statute.¹ Plaintiffs claim the conversion constitutes a taking of their property for public use which obligates the United States to provide just compensation under the Fifth Amendment. Relief is sought pursuant to the "Little Tucker Act," 28 U.S.C. § 1346(a)(2), in the form of damages, costs, interest, and other relief. The matter is now before the court on the United States' Motion to Dismiss, which alleges that the claims are barred by the statute of limitations. The court finds that oral argument would not assist in deciding the issues presented.

I. Background.

The background of the "rails-to-trails" act was explained in Preseault v. Interstate Commerce Commission, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). Pursuant to its authority to regulate interstate commerce, Congress gave the Interstate Commerce Commission (ICC), and later the Surface Transportation Board (STB), exclusive authority over the construction, operation, and abandonment of the nation's rail lines. Rail trackage in the United States peaked at around 272,000 miles in 1920 and has declined significantly since them. Id. at 5, 110 S.Ct. 914. By 1990, only about 141,000 miles were in use, with 3,000 more miles expected to be abandoned every year. Id. Pursuant to statute and regulation, when a railroad operator wants to cease operations on a rail line it must file notice of its intent with the STB. The STB may authorize the abandonment only if it finds that public convenience and necessity require it. 49 U.S.C. § 10903(d). Once a carrier abandons a line pursuant to authority granted by the STB, the line is no longer part of the national transportation system. Abandonment of a rail line may trigger reversionary interests in the property because many railroads do not own the rights-of-way upon which they operate; they merely own easements or similar interests. Frequently these easements provide that the right-of-way reverts to the abutting landowner upon abandonment of rail operations.

In 1976, Congress passed the National Trails System Act, which was aimed at promoting the conversion of abandoned rail lines to recreational trails. Id. at 6-7, 110 S.Ct. 914. This Act encouraged the Government to promote conversion and authorized the ICC to delay disposition of rail property unless the property were first offered for sale on terms providing for public use. By 1983, Congress concluded these provisions had not been successful, and it amended the Trails Act to give the ICC authority to preserve rights-of-way not currently in service for possible future railroad use (called "rail banking") and to allow interim use of the land as recreational trails. Id. The amendments provide that a railroad wishing to cease operations along a particular route may negotiate with a State, municipality or private group that is prepared to assume financial and management responsibility for the right-of-way. If the parties reach an agreement, the land may be transferred to the trail operator for interim trail use, subject to ICC-imposed terms. If no agreement is reached, the railroad may be permitted to abandon the line entirely. Id. at 6-8, 110 S.Ct. 914.

Under implementing regulations, a railroad may apply to the STB for a Certificate of Interim Trail Use or Abandonment (CITU) or, in a proceeding involving the exemption of a route from STB regulation, a Notice of Interim Trail Use or Abandonment (NITU). The issuance of a CITU or NITU provides a 180-day period in which the railroad may, among other things, negotiate an agreement for interim trail use with a qualified trail operator. (This 180-day period may be extended by the STB). If an agreement is reached, interim trail use is thereby authorized. Federal law provides that if such interim use is subject to restoration for railroad purposes, "such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes." 16 U.S.C. § 1247(d). This effectively preempts the operation of reversionary clauses under state property law and prevents the property from reverting to the abutting landowner. It has also given rise to claims, including the instant one, that the conversion constitutes a taking of private property for public use.

In Preseault the Supreme Court found the Trails Act was a valid exercise of Congress' power under the Commerce Clause. Preseault, 494 U.S. at 19, 110 S.Ct. 914. Moreover, it said even assuming that the conversion of a right-of-way to a trail constituted a "taking" of the property, the availability of a remedy under the Tucker Act rendered premature any claim that the taking was without just compensation. Id. at 16-17, 110 S.Ct. 914.

II. Summary of Relevant Facts.

The following summary is from the complaint and the uncontroverted facts in defendant's motion to dismiss. The claims in the case relate to three separate recreational trails: the Meadowlark Trail; the Sunflower Trail; and the Flint Hills Nature Trail.

A. The Meadowlark Trail. The Union Pacific (UP) was the last railroad to hold the right-of-way in McPherson County, Kansas upon the properties of the plaintiffs identified in ¶ 6 of the complaint. On June 22, 1995, the UP filed a notice of exemption (see 49 CFR § 1152.50) to abandon its McPherson County railroad line (12.6 miles of railroad between mile post 518.0 near McPherson, Kansas, and milepost 530.6 near Lindsborg, Kansas). On August 18, 1995, the City of Lindsborg requested that a Notice of Interim Trail Use (NITU) be issued for this 12.6 mile line under the National System Trails Act (16 U.S.C. § 1247(d)) so as to enable the City to acquire the right-of-way for use as a recreational trial. Thereafter, the City submitted to the STB a statement of willingness to assume financial responsibility for interim trail use and rail banking in compliance with 49 CFR § 1152.29. On September 6, 1995, the UP responded that it was willing to negotiate with the City of Lindsborg concerning interim trail use.

On September 28, 1995, the STB issued and served a NITU imposing both a 180-day public use condition (42 U.S.C. § 10906) and a 180-day trail use/rail banking condition (16 U.S.C. § 1247(d)) in connection with the proposed abandonment. On March 26, 1996, the STB extended the NITU negotiating period by an additional 180 days, through September 22, 1996. A motion to extend the negotiating period was filed on September 18, 1996, which was granted by the STB on January 27, 1997, extending the negotiating period through March 21, 1997. On March 25, 1997, the STB extended the period through April 20, 1997.

On April 16, 1997, the UP issued a "Donative Quitclaim Deed" to the Central Kansas Conservatory [or Conservancy] Inc.(CKC), which purported to convey to CKC all of UP's right, title and interest to the real estate in the portion of the McPherson line being abandoned by UP. On the same day, the UP and CKC entered into a "Line Donation Contract" which stated that the contract and deed were made in accordance with and subject to the Trails Act. Since the contract and deed were executed, CKC has exercised exclusive control, pursuant to the Trails Act, over the location of the former railroad right of way in McPherson County, which is now known as the Meadowlark Trail.

B. The Sunflower Trail. The last railroad to hold the right-of-way in Marion and McPherson Counties upon the properties of the plaintiffs identified in ¶ 5 of the complaint was Central Kansas Railway, LLC ("Central Kansas"). On February 22, 1996, Central Kansas filed a notice of exemption under 49 CFR § 1152 to abandon this line (specifically, 33.4 miles from milepost 10 plus 2418 feet at or near Marion to milepost 43 plus 4505 feet at or near McPherson). The exemption was scheduled to become effective on April 12, 1996. On April 12, 1996, the STB issued a NITU and stayed the exemption for six months to permit Central Kansas to negotiate with Jennings & Co., which had filed a statement of willingness to assume responsibility for the line. The STB granted two additional extensions. The CKC filed a statement of willingness to assume responsibility for the trial and requested issuance of a NITU. On June 12, 1997, the STB issued a second NITU and postponed the effective date of the exemption until December 13, 1997. On September 19, 1997, Central Kansas issued to the Central Kansas Conservatory [or Conservancy] (CKC) a "Donative Quitclaim Deed" which purported to convey all of the railroad's right, title and interest in the real estate on the portion of the line that was to be abandoned by Central Kansas. The deed made reference to a "Line Donation Contract" between Central Kansas and the CKC dated ...