Longnecker Prop. v. United States

• Decision Date: 30 April 2012
• Docket Number: No. 09-173L,09-173L
• Parties: LONGNECKER PROPERTY, et al., For Themselves, and as Representatives of a Class of Similarly Situated People,Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

LONGNECKER PROPERTY, et al., For Themselves, and asRepresentatives of a Class of Similarly Situated People,Plaintiffs,

v.UNITED STATES, Defendant.

No. 09-173L

United States Court of Federal Claims

Filed: April 30, 2012

Fifth Amendment Taking; Rails to

Trails; Scope of the Easements;

Railbanking.

Brent W. Baldwin, Baker Sterchi Cowden and Rice, LLC, St. Louis, Mo., for the plaintiffs. With him were Steven M. Wald and J. Robert Sears, Baker Sterchi Cowden and Rice, LLC, St. Louis, Mo., and Thomas S. Stewart and Elizabeth C. McCulley,

Baker Sterchi Cowden and Rice, LLC, Kansas City, Mo., of counsel.

Bruce K. Trauben, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendant. With him was Ignacia S. Moreno, Assistant Attorney General, Environment and Natural Resources Division.

OPINION

HORN, J.

At issue is a 3.46 mile right of way in Thurston County, Washington. The plaintiffs in this Longnecker class action allege that when the United States Department of Transportation, Surface Transportation Board (STB) issued a Notice of Interim Trail Use (NITU), pursuant to the National Trails System Act, 16 U.S.C. §§ 1241-1251 (2006), and authorized conversion of the railroad line for use as a public recreational trail, the federal government denied plaintiffs their reversionary interest in the rights of way located on their properties, formerly occupied by a railroad. Plaintiffs, therefore, claim the United States effected a taking, compensable under the Fifth Amendment to the United States Constitution. This opinion addresses cross-motions for partial summary judgment regarding those deeds which conveyed only easements, and whether the scope of the easements was exceeded by the issuance of the NITU. Previously, on March 2, 2012, this court issued an Order dismissing certain claimswhich conveyed only fee interests. The facts established in the March 2, 2012 Order are incorporated into this opinion. Certain of the relevant facts are briefly repeated below, together with additional facts pertinent to this opinion.

FINDINGS OF FACT

The parties have stipulated that the majority of the railroad line in question was originally acquired by the Tacoma, Olympia and Gray's Harbor Railroad Company (the TO&GHR) and its successor, the Northern Pacific Railway (the NPR). Between July 1890 and February 1911, the TO&GHR and the NPR acquired the land needed to construct the railroad by deeds granted by the plaintiffs' predecessors in title to the railroad:¹ Jane Adams and Mary and G.W. Carpenter,² Charles and Gertrude Hochhaus,³ William Stewart,⁴ Allen and Ellen Weir,⁵ John M. and Sarah E. Patton,⁶ J.C.and Eva Ellis,⁷ David and Ella N. Fleetwood,⁸ Joseph and Almeda G. Rowe,⁹ George W. and Mary A. Carpenter,¹⁰ John M. and Jane Adams,¹¹ David and Elizabeth Chambers,¹² and Herman J. and Emilie G. Frase.¹³

The parties have stipulated that the deeds at issue in this opinion, the Patton Deed, the Ellis Deed, the Fleetwood Deed, the Rowe Deed, the Carpenter Deed, the Adams Deed, the Chambers Deed, and the Frase Deed, each titled, "Right of Way Deed" (collectively, the Right of Way Deeds), conveyed only easements to the TO&GHR. Despite variations in the grantors' names, the dates the deeds were executed, the amount of consideration paid, and the property descriptions, the Patton Deed, the Ellis Deed, the Fleetwood Deed, the Rowe Deed, the Carpenter Deed, the Adams Deed, the Chambers Deed, and the Frase Deed contain nearly identical formats, including nearly identical granting, habendum, and reverter clauses. The only differences between the granting, habendum, and reverter clauses in the Right of Way Deeds occur in spelling and punctuation, except that the Fleetwood Deed does not state the width of the right of way and the Adams Deed grants "a right of way One hundred and fifty feet in width," comprised of "a strip of land Fifty feet in width on such each side of the center line...[and] also a strip fifty feet wide on the south side of and adjoining such strip already described." Examples of a few slight variations in the language of the other Right of Way Deeds are: the Patton Deed contains an additional stipulation that the TO&GHR build a fence on both sides of the right of way to protect livestock and the Ellis and Fleetwood Deeds state that the grant is for "One Dollar and other valuable considerations." Neither provision is included in the other Right of Way Deeds.

Ownership of the railroad line transferred hands several times after the initial acquisitions by the TO&GHR and its successor the NPR, by operation of mergers. In 1970, the NPR merged with the Great Northern Railway Company and the Chicago Burlington and Quincy Railroad Company to become the Burlington Northern Railroad Company. Subsequently, the Burlington Northern Railroad Company merged with the Atchison Topeka and Santa Fe Railway Company to become the Burlington Northern and Santa Fe Railway Company (the Burlington Northern).

By 2002, the railroad line was out of service and the Burlington Northern and local authorities began discussing the fate of the line. On November 7, 2002, the City of Lacey wrote to counsel for the Burlington Northern regarding the rail line's suitability for alternative, public use as a recreational trail and its request that, upon abandonment, "the roadbed and structures such as bridges, trestles, and culverts be left intact, to the extent that they are currently installed in this section of rail corridor. In the November 7, 2002 letter the City of Lacey also stated: "The Cities do not object to the removal of track materials, such as rails and ties." On December 2, 2002, the City of Olympia informed the Burlington Northern that it agreed with the statements made by the City of Lacey.

On March 26, 2004, the Cities of Lacey and Olympia filed a "request for both a Public Use Condition and a Trail Use" for the 3.46 mile line at issue in this case. On April 6, 2004, the Burlington Northern filed a Notice of Exemption to abandon 5.80 miles of railroad corridor between milepost 3.27 in Quadlock, Washington and milepost 9.07 in Olympia, Washington. See BNSF Railway Co.¹⁴ - Abandonment Exemption - in Thurston Cnty., WA, STB Docket No. AB-6 (Sub. No. 410X), 2005 WL 678995 (S.T.B. Mar. 23, 2005). The 3.46 mile right of way was within the railroad corridor between Quadlock, Washington and Olympia, Washington, extending from milepost 3.27 in Quadlock to milepost 6.73 in Olympia. Id. After receiving notice that their original request was premature because it was filed before the railroad filed a Notice of Exemption, the Cities filed a new request on April 21, 2004. On April 26, 2004, the Burlington Northern filed a letter with the STB indicating that it did not object to the issuance of a NITU for the 3.46 mile line. On May 24, 2004, the STB issued a NITU for the 3.46 mile section of the line. See Burlington Northern & Santa Fe Ry. Co. - Abandonment Exemption - in Thurston Cnty., WA, STB Docket No. AB-6 (Sub. No. 410X), 2004 WL 1153050 (S.T.B. May 19, 2004). The STB's ruling authorized the conversion of the railroad right of way into a recreational trail pursuant to 16 U.S.C. § 1247(d).

On November 22, 2004, the Cities of Lacey and Olympia and the Burlington Northern entered into a Railbanking and Bargain Sale Contract, which indicated:

pursuant to Section 1247(d) of the National Trails Systems Act, as amended, and the terms and conditions set forth herein, BNSF is willing to sell to Buyer at a substantially reduced purchase price all of BNSF's right, title and interest, subject to any reservations set forth hereinbelow, (i) in a rail corridor and trail-related structures (including land, bridges, culverts, ballast and earthwork)....

The Railbanking and Bargain Sale Contract acknowledged the Burlington Northern's right to reactivate and restore rail service on the property and the possibility that theBurlington Northern's interest in the property, "may be subject to reversion upon abandonment of use for railroad purposes or cessation of interim trail use."

On November 23, 2004, the Burlington Northern notified the STB that it had reached a trail use agreement for the 3.46 mile line. See BNSF Railway Co. - Abandonment Exemption - in Thurston Cnty., WA, STB Docket No. AB-6 (Sub. No. 410X), 2005 WL 678995 (S.T.B. Mar. 23, 2005). On December 15, 2004, the Burlington Northern notified the STB that it had consummated the abandonment for the remainder of the line between milepost 6.73 and milepost 9.07. Id. On January 20, 2005, the Burlington Northern executed quit claim deeds granting its interests in the 3.46 mile railroad line to the Cities of Lacey and Olympia pursuant to the Railbanking and Bargain Sale Contract. The City of Olympia completed a trail on its portion of the right of way on December 1, 2007, and by December 31, 2009, the City of Lacey completed a trail on its portion of the right of way. From the record, it appears the tracks were removed from the rail line.

Thereafter, the plaintiffs filed their claims in the United States Court of Federal Claims, alleging that, following the issuance of the NITU for the 3.46 mile line section of the railroad, "[b]y operation of the Trails Act, the United States took Plaintiffs' property for which it is Constitutionally obligated to pay just compensation," pursuant to the Fifth Amendment to the United States Constitution. Subsequently, the plaintiffs filed a motion to certify this case as a class action, citing to Rule 23 of the Rules of the United States Court of Federal Claims (RCFC). The defendant did not oppose certification, and the motion to certify the class was granted by the court. Subsequently, the plaintiffs filed an amended complaint. On March 2, 2012, this court issued an Order granting a motion by defendant for partial summary judgment, concluding that the deeds which conveyed a fee interest, the...