Burnett v. United States, 16-995L

• Court: U.S. Claims Court
• Writing for the Court: GRIGGSBY, Judge
• Decision Date: 09 October 2018
• Docket Number: No. 16-995L,16-995L
• Citation: Burnett v. United States, No. 16-995L (Fed. Cl. Oct 09, 2018)
• Parties: DUANE OMAR BURNETT, et al., Plaintiffs, v. THE UNITED STATES, Defendant.

DUANE OMAR BURNETT, et al., Plaintiffs,
v.
THE UNITED STATES, Defendant.

No. 16-995L

United States Court of Federal Claims

October 9, 2018

Rails-to-Trails; Fifth Amendment Takings; National Trails System Act; Missouri Property Law; Fee Simple; Easement; Notice of Interim Trail Use (NITU); Summary Judgment; RCFC 56.

J. Robert Sears, Attorney of Record, Jacqueline D. Gebhardt, Baker Sterchi Cowden & Rice, L.L.C., St. Louis, MO, for plaintiffs.

Lila Jones, Attorney of Record, Edward C. Thomas, Laura Duncan, Jeffrey H. Wood, Acting Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice, Washington, DC; Theodore L. Hunt, Of Counsel, Associate General Counsel, Surface Transportation Board, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiffs are landowners of property located adjacent to a railroad line owned by the Missouri Central Railroad Company ("MCRR") and they have brought this rails-to-trails action against the United States pursuant to the National Trails Systems Act, 16 U.S.C. §§ 1241-51. See generally 4th Am. Compl. In the fourth amended complaint, plaintiffs allege a Fifth Amendment takings of their reversionary interest in certain property underlying the railroad line, that they allege has been conveyed to MCRR as an easement for railroad purposes, as a result of the Surface Transportation Board's issuance of a Notice of Interim Trail Use on February 25, 2015. Id. at ¶¶ 3-5.

Plaintiffs have filed a motion for partial summary judgment on liability and the government has filed a cross-motion for summary judgment on standing and title issues, pursuant to Rule 56 of the Rules of the United States Court of Federal Claims ("RCFC"). For the reasons

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set forth below, the Court DENIES plaintiffs' motion for partial summary judgment and GRANTS the government's cross-motion for summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

A. Factual Background

This "rails-to-trails" case is one of several cases pending before the Court involving an alleged takings of real property situated along a 144.3 mile rail corridor located in Cass, Pettis, Benton, Morgan, Miller, Cole, Osage, Maries, Gasconade, and Franklin Counties in the State of Missouri. Pl. Mem. at 1; Def. Ex. 2; Pl. Ex. C.

1. The National Trails System Act

As background, the Interstate Commerce Act of 1887, ch. 104, 24 Stat. 379, and the Transportation Act of 1920, ch. 91, 41 Stat. 477-78, grant the Interstate Commerce Commission, now the Surface Transportation Board ("STB"), exclusive authority over the construction, operation and abandonment of the Nation's rail lines. See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321 (1981). In order for a railroad company to terminate rail service, the railroad company must obtain the consent of the STB. See Barclay v. United States, 443 F.3d 1368, 1371 (Fed. Cir. 2006), cert. denied, 549 U.S. 1209 (2007). To obtain consent, the railroad company may apply for permission to discontinue service, seek permission to terminate through abandonment proceedings, or file a request for an exemption from abandonment proceedings. See 49 U.S.C. § 10903(d)(1)-(2); Barclay, 443 F.3d at 1371. Once the STB consents, the rail line is removed from the national transportation system and the STB's jurisdiction comes to an end. Barclay, 443 F.3d at 1371.

In 1983, Congress amended the National Trails System Act to include an alternative process for railroad companies to abandon rail lines. 16 U.S.C. § 1247(d); Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 5-6 (1990) ("Preseault I"); Caldwell v. United States, 391 F.3d

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1226, 1229 (2004) ("Caldwell II"). This process, known as "railbanking," preserves corridors or rights-of-way not in use for train service for possible future use as recreational trails. Caldwell II, 391 F.3d at 1229.

In order for a rail line to be "railbanked," the railroad company must first file an abandonment application under 49 U.S.C. § 10903, or a notice of exemption from that process under 49 U.S.C. § 10502. Once an abandonment application, or request for an exemption, is filed, a party interested in railbanking may request the issuance of a Certificate of Interim Trail Use ("CITU") (in abandonment application proceedings) or a Notice of Interim Trail Use ("NITU") (in abandonment exemption proceedings). 49 C.F.R. § 1152.29(c)-(d). If the railroad company indicates that it is willing to negotiate a railbanking and interim trail use agreement, the STB issues the CITU or NITU. Id. The issuance of the CITU or NITU preserves the STB's jurisdiction over the rail line and allows the railroad company to discontinue operations and remove track and equipment while the parties negotiate a railbanking and interim trail use agreement. Id.; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 711-12 (2011).

The NITU or CITU affords the railroad company 180 days in which to negotiate a railbanking and interim trail use agreement with the third party. 49 C.F.R. § 1152.29(c)(1), (d)(1); Caldwell II, 391 F.3d at 1229-30, 1233. If an agreement is reached, the NITU (or CITU) automatically authorizes the interim trail use. If the STB takes no further action, the trail sponsor then may assume management of the right-of-way, subject only to the right of a railroad to reassert control of the property for restoration of rail service. Caldwell v. United States, 57 Fed. Cl. 193, 195 (2003), aff'd, 391 F.3d 1226 (Fed. Cir. 2004) ("Caldwell I") (internal citations omitted); see also 16 U.S.C. § 1247(d); 49 C.F.R. § 1152.29(d)(2). If no agreement is reached, the railroad company may proceed with the abandonment process. 49 C.F.R. § 1152.29(d)(1), (e)(2).

2. The Rock Island Line

The railroad line at issue in this case is a 144.3 mile long rail corridor commonly known as the Rock Island Line (the "Rock Island Line"). Def. Ex. 2 at 22; Pl. Ex. C at 22. This rail corridor extends across the center of the State of Missouri, from Pettis County to Franklin County. Def. Ex. 2 at 22; Pl. Ex. C at 22.

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Built in the early 1900s, the Rock Island Line was originally part of the Chicago, Rock Island and Pacific Railroad Company. Def. Ex. 2 at 16; Pl. Ex. C at 16. Several different railroad companies owned the Rock Island Line until 1999, when the Missouri Central Railroad Company acquired the rail line. Def. Ex. at 16-17; Pl. Ex. C at 16-17.²

On November 18, 2014, MCRR filed a verified notice of exemption with the STB to abandon its interest in the Rock Island Line. Def. Ex. 3; Pl. Ex. B. On December 16, 2014, the Missouri Department of Natural Resources ("MDNR") filed a request for the issuance of a NITU to allow the department to negotiate with MCRR for the acquisition of the rail corridor for use as a trail under the National Trails Systems Act. Def. Ex. 4; Pl. Ex. D.

The STB issued the NITU on February 25, 2015. Def. Ex. 5; Pl. Ex. A. Although the original NITU would have expired 180 days thereafter, the MCRR has requested and received multiple extensions of the NITU. Def. Ex. 6; Pl. Ex. E. The current expiration date of the NITU is February 21, 2019. Def. Ex. 6; Pl. Ex. E. And so, to date, no railbanking and interim-trail-use agreement is in place with respect to the Rock Island Line. See Def. Ex. 6; Pl. Ex. E.

3. The Disputed Parcels

This takings matter involves 29 claims related to 38 plaintiffs and 29 parcels located along the Rock Island Line. See generally 4th Am. Compl. Eighteen claims—involving 23 plaintiffs—are addressed in the parties' cross-motions for summary judgment. See generally Pl. Mot.; Pl. Mem.; Def. Mot.³

The relevant claims are described in the table below:

Claim; No.	Plaintiffs	Parcel No.	County
1	Robert J. Atkins	25-1-11.0-1-099-061.000	Franklin
2	Belle Community Fair, Inc.	01-4.0-20-003-02-0003.00	Maries
3	Duane Omar & Darlene E. Burnett	16-1.0-11-000-000-011.002	Gasconade
5	Roscoe Charles & Daisy M. Durbin	01-4.0-20-003-05-0001.00	Maries
6	J. Juanita Griggs	01-5.0-21-002-09-0005.00	Maries

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Claim; No.	Plaintiffs	Parcel No.	County
7	Howard & Marie O. Holaway	24-2-03.0-0-000-003.000	Franklin
10	Estate of Patricia Kinkead	25-1-01.0-3-002-046.000	Franklin
11	Sonny & Charlotte Lemons	19501500000000200	Osage
12	Wayne M. & Gloria Misner	14-9.0-29-004-001.001.000	Gasconade
13a	Tami Luehr Morton	25-1-01.0-3-002-042.000	Franklin
13b	Tami Luehr Morton	25-1-01.0-3-002-043.100	Franklin
17a	Oral D. Seymour	02-6.0-23-000-00-0010.00	Maries
19	Martin Five Ltd. Partnership	25-1-11.0-1-001-074.000	Franklin
20	Everett Turner	01-4.0-20-001-24-0005.00	Maries
21	James Daren Zumwalt	19-6.0-14-000-00-0011.00	Osage
22a	Value Investments, LLC, Estate of; John H. & Temple Lee Vance	25-1-11.0-1-004-095.000	Franklin
22b	Value Investments, LLC, Estate of; John H. & Temple Lee Vance	25-1-11.0-1-004-096.000	Franklin
23	JHV Holdings, LLC	25-1-11.0-1-004-149.000	Franklin

B. Procedural Background

On August 12, 2016, plaintiffs filed the complaint. See generally Compl. On August 15, 2016; April 4, 2017; May 15, 2017; and February 20, 2018, plaintiffs filed amended complaints. See generally 1st Am. Compl.; 2d Am. Compl.; 3d Am. Compl.; 4th Am. Compl.

On March 16, 2018, plaintiffs filed a motion for partial summary judgment on liability. See generally Pl. Mot. On April 16, 2018, the government filed a cross-motion for summary judgment on standing and title issues. See generally Def. Mot. On May 30, 2018, plaintiffs filed a reply in support of then motion for partial summary judgment and a response and opposition to the government's cross-motion for summary judgment. See generally Pl. Resp. On July 13, 2018, the government filed a reply in support of its cross-motion for summary judgment. See generally Def. Reply.

These...