Beres v. United States, No. 03-785L

• Court: Court of Federal Claims
• Writing for the Court: HORN, J.
• Parties: WARREN S. BERES, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Decision Date: 16 April 2019
• Docket Number: No. 04-1473L,No. 04-1467L,No. 04-1463L,No. 04-1456L,No. 04-1469L,No. 04-1472L,No. 03-785L,No. 04-1459L,No. 04-1465L,No. 04-1471L

WARREN S. BERES, et al., Plaintiffs,
v.
UNITED STATES, Defendant.

No. 03-785L
No. 04-1456L
No. 04-1459L
No. 04-1463L
No. 04-1465L
No. 04-1467L
No. 04-1469L
No. 04-1471L
No. 04-1472L
No. 04-1473L

United States Court of Federal Claims

April 16, 2019

Motion to Dismiss; Motion to Strike; Cross-Motions for Partial Summary Judgment; Rails to Trails; Fifth Amendment Taking; Subject Matter Jurisdiction; Deed Interpretation; Plat Interpretation; Adverse Possession; Preemption; RCFC 56(d).

Cecilia Fex, Ackerson Kauffman Fex, P.C., Washington, D.C., for plaintiffs in D. Mike Collins, et al. v. United States, Case No. 04-1472L; and Reid Brown, et al. v. United States, Case No. 04-1473L.

Richard M. Stephens, Stephens & Klinge LLP, Bellevue, WA, for plaintiffs in Warren S. Beres v. United States, Case No. 03-785L; Clifford F. Schroeder, et al. v. United States, Case No. 04-1456L; Clarence A. Peterson, et al. v. United States, Case No. 04-1459L; Raymond Spencer, et al. v. United States, Case No. 04-1463L; Robert C. Nelson, et al. v. United States, Case No. 04-1465L; and Eugene Morel, et al. v. United States, Case No. 04-1467L.

Tanya C. Nesbitt, Trial Attorney, Natural Resources Section, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C., for defendant. With her was Jeffrey H. Wood, Acting Assistant Attorney General, Environment and Natural Resources Division.

OPINION

HORN, J.

At issue in the court's Opinion is whether ten plaintiffs have an interest in the land underlying the railroad corridor at issue in D. Mike Collins, et al. v. United States, No. 04-1472L (Collins), Robert G. Nelson, et al. v. United States, No. 04-1465L (Nelson), Clarence A. Peterson, et al. v. United States, No. 04-1459L (Peterson), Raymond Spencer, et al. v. United States, No. 04-1463L (Spencer), and Clifford F. Schroeder, et al. v. United States, No. 04-1456L (Schroeder). The plaintiffs in the specifically-named, consolidated cases allege that the United States effected a taking without just compensation along a 12.45-mile railroad line (the railroad corridor) near the eastern

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shore of Lake Sammamish in King County, Washington, when the Surface Transportation Board issued a Notice of Interim Trail Use (NITU) on September 18, 1998.

The ten specifically-named plaintiffs¹ whose interests are addressed in this Opinion are Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez,² Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes.³

The cases were consolidated for case-management purposes under the lead case, Warren S. Beres v. United States, Case No. 03-785L (Beres). The court previously has issued multiple Opinions in the specifically-named cases. See Beres v. United States, 104 Fed. Cl. 408, 412 (2012) (discussing Opinions issued in the above-captioned cases) (Beres V). In Beres V, an Opinion in which the court addressed "the scope of the rights of way in these multifaceted takings cases, involving numerous plaintiffs, multiple

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statutory land grants, different deed types, a prescriptive easement and subsequent conveyances over a more than one hundred year time period," the court explained:

One opinion denied defendant's motion for summary judgment regarding the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat. 482, 43 U.S.C. § 934 et seq. (repealed in 1976), (the 1875 Act), and its effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64 Fed. Cl. 403 (2005) [(Beres I)]. This court also issued an Order forwarding the plaintiffs' request for certification on relevant questions of state law to the State of Washington Supreme Court, which the State of Washington Supreme Court summarily denied. See Schroeder v. United States, 66 Fed. Cl. 508 (2005) [(Beres II)]. Subsequently, this court issued an opinion, addressing issues of collateral estoppel regarding former plaintiffs Gerald L. and Kathryn B. Ray and a number of other plaintiffs in the above captioned consolidated cases. See Beres, et al. v. United States, 92 Fed. Cl. 737 (2010) [(Beres III)]. Finally, this court issued an opinion addressing the question of fee versus easement for a number of the deeds which conveyed rights of way to the railroads. See Beres, et al. v. United States, 97 Fed. Cl. 757 (2011) [(Beres IV)].

Beres V, 104 Fed. Cl. at 412 (footnote omitted). The facts in the Opinions discussed above are incorporated into this Opinion, and certain facts relevant to the court's analysis are repeated below. Following the numerous previous Opinions issued by this court on a variety of issues and numerous attempts by the parties at settlement negotiations, the parties have filed cross-motions for partial summary judgment, as well as a motion to dismiss and a motion to strike, addressed below in this Opinion.

FINDINGS OF FACT

The following specific facts which bear on the issues currently before the court are summarized below. In 1998, the Burlington Northern and Santa Fe Railway (Burlington Northern), a successor-in-interest to the Seattle, Lake Shore and Eastern Railway Company, sought an exemption to abandon the railroad corridor from the Surface Transportation Board (STB). Beres V, 104 Fed. Cl. at 417 (citation omitted). On May 13, 1998, the STB granted Burlington Northern an exemption to abandon the railroad corridor. Id. (citation omitted). On September 16, 1998, the STB authorized The Land Conservancy of Seattle and King County (TLC) to assume financial responsibility for Burlington Northern's right-of-way pursuant to the National Trails System Act, 16 U.S.C. § 1241 et seq. (1994) (the Trails Act). Beres V, 104 Fed. Cl. at 417 (citation omitted). On September 18, 1998, the STB authorized the issuance of a NITU permitting King County and TLC to establish a public recreational trail over the railroad right-of-way, pursuant to 16 U.S.C. § 1247(d) (1994), and, subsequently, King County reached an agreement with Burlington Northern for use of the railroad right-of-way for trail purposes. Beres V, 104 Fed. Cl. at 417. On September 29, 1998, counsel for the TLC indicated to the STB that the parties had reached a railbanking agreement related to Burlington Northern's railroad corridor pursuant to the NITU. Id.

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Lake Sammamish is located to the west of the parcels owned by the ten plaintiffs whose interest in the land underlying the railroad corridor currently is at issue in this Opinion. The railroad corridor is to the east of all ten of the plaintiffs' parcels, and the East Lake Sammamish Parkway is to the east of the railroad corridor. The ten plaintiffs' parcels, therefore, lie between Lake Sammamish and the railroad corridor.

Spencer, Schroeder, and Peterson Plaintiffs

The parties dispute whether the metes and bounds in the deeds conveying land to Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff Donna Marie Raab Matrinez rebut the centerline presumption under Washington State law. The parties also dispute whether Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff Donna Marie Raab Matrinez have an interest in the land underlying the railroad corridor.

The deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway all contain references to tracts of land on an unrecorded plat map of a subdivision of land created by Willis J. Connell, as indicated in the text of those plaintiffs' deeds quoted below.⁴ The pertinent portion of the deed conveying parcel number 173870-0035 to Spencer plaintiffs Raymond and Lael Spencer states:

That portion of Government Lot 2[⁵] in Section 32, Township 25 North, Range 6 East, in King County, Washington, described as follows:

Beginning at the intersection of a line of said Government Lot 2 with the southwesterly line of the Northern Pacific Railway right-of-way; thence north 38 degrees 00 minutes 00 seconds east along said right-of-way line 313.29 feet to the true point of beginning; thence continuing north 38 degrees 00 minutes 00 seconds east along said right-of-way line 75.00 feet; thence north 52 degrees 00 minutes 00 seconds west 230 feet more or less to the westerly line of said Government Lot 2; thence southwesterly along said westerly line to a point which bears north 52 degrees 00 minutes 00

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seconds west from the true point of beginning; thence south 52 degrees 00 minutes 00 seconds east 230 feet more or less to the point of beginning;

(ALSO KNOWN AS Tract 8 and the northeasterly 25 feet of Tract 7, Connell's Subdivision of Government Lot 2, according to the unrecorded plat thereof.)

(capitalization in original). The pertinent portion of the deed conveying parcel number 173870-0130 to Spencer plaintiffs John and Carolyn Rossi states:

That portion of Government Lot 2, Section 32, Township 25 North, Range 6 East, W.M., in King County, Washington, described as follows:

Beginning at the intersection of the southerly line of said Government Lot with the westerly line of the right-of-way of the Northern Pacific Railway Company and running thence northerly along said westerly line 1238.29 feet to the true point of beginning; thence northerly along said westerly line 62 feet; thence North 52° 00' 00" West 43 feet; thence northeasterly at right angles 13 feet; thence North 52° 00' 00" West to the westerly line of said Government Lot; thence southerly along said westerly line to a point from which the true point of beginning bears South 52° 00' 00" east; thence South 52° 00' 00" East 210 feet, more or

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