Whispell Foreign Cars, Inc. v. United States

• Decision Date: 29 August 2011
• Docket Number: No. 09-315L,09-315L
• Parties: WHISPELL FOREIGN CARS, INC., ET AL., Plaintiffs, v. THE UNITED STATES, Defendant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

WHISPELL FOREIGN CARS, INC., ET AL., Plaintiffs, v. THE UNITED STATES, Defendant.

No. 09-315L

United states Court of Federal Claims

E-Filed: August 29, 2011

Fifth Amendment Rails-to-Trails Takings Claim; Interest Acquired by Railroad by Adverse Possession; Ordinance Conveyed an Easement to Railroad

Mark F. Hearne, II, Clayton, MO, for plaintiffs. Lindsay S.C. Brinton and Meghan S. Largent, Washington, DC, of counsel.

Carol L. Draper, with whom was Ignacia S. Moreno, Assistant Attorney General, Environment & Natural Resources Division, Natural Resources Section, United States D epartment of Justice, Washington, D C , for defendant.

ORDER AND OPINION

HEWITT, Chief Judge

I. Introduction

This is a rails-to-trails case brought by Whispell Foreign Cars, Inc., et al. (plaintiffs). Plaintiffs claim that the government effected a taking of their property when it converted a railroad right of way to a trail pursuant to the National Trails System Act Amendments of 1983 (the Trails Act Amendments), Pub. L. No. 98-11, 97 Stat. 42, to the National Trails System Act (Trails Act), Pub. L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. § 1241 (2006)). Pls.' Mem. of Law in Supp. of Mot. for Partial Summ. J. (plaintiffs' Memorandum or Pls.' Mem.), Docket Number (Dkt. No.) 31, at 1.Plaintiffs request the court to enter partial summary judgment holding that the government has taken their property in violation of the Fifth Amendment and is therefore obligated to pay plaintiffs just compensation. Pls.' Mem. 2.

Defendant cross-moves for summary judgment contending that Tampa & Gulf Coast Railroad Co. (individually and/or collectively with its successors, as the context requires, Tampa & Gulf Coast) acquired a fee simple interest in plaintiffs' property and that the government is therefore not obligated to pay plaintiffs just compensation. Def.'s Cross-Mot. for Summ. J., Opp'n to Pls.' Mot. for Partial Summ. J., and Mem. in Supp. Thereof (defendant's Response or Def.'s Resp.), Dkt. No. 38, at 1-2.

Before the court are Plaintiffs' Motion for Partial Summary Judgment, Dkt. No. 29, filed June 16, 2010; plaintiffs' Memorandum, Dkt. No. 31, filed June 16, 2010; Plaintiffs' Proposed Findings of Uncontroverted Fact (PFUF I), Dkt. No. 30, filed June 16, 2010; Defendant's Responses and Objections to Plaintiffs' Proposed Findings of Uncontroverted Fact (Def.'s Resp. to PFUF I), Dkt. No. 40, filed July 28, 2010; defendant's Response, Dkt. No. 38, filed July 28, 2010; Defendant's Proposed Findings of Uncontroverted Fact in Support of its Cross-Motion for Summary Judgment (DFUF), Dkt. No. 39, filed July 28, 2010; Plaintiffs' Responses to Defendant's Proposed Findings of Uncontroverted Fact in Support of its Cross-Motion for Summary Judgment (Pls.' Resp. to DFUF), Dkt. No. 49, filed October 22, 2010; Plaintiffs' Proposed Findings of Uncontroverted Fact in Response to Defendant's Cross-Motion for Summary Judgment (PFUF II), Dkt. No. 50, filed October 22, 2010; Plaintiffs' Response to Defendant's Cross-Motion for Summary Judgment (Pls.' Resp.), Dkt. No. 48, filed October 22, 2010; Defendant's Reply in Support of Cross-Motion for Partial Summary Judgment, and Opposition to Plaintiffs' Motion for Partial Summary Judgment (Def.'s Reply), Dkt. No. 56, filed November 23, 2010; Defendant's Objections and Response to Plaintiffs' Proposed Findings of Uncontroverted Fact in Response to Defendant's Cross-Motion for Summary Judgment (Def.'s Resp. to PFUF II), Dkt. No. 57, filed November 23, 2010; Plaintiffs' Sur-Reply in Support of their Motion for Partial Summary Judgment and in Response to the Government's Reply in Support of its Cross-Motion for Partial Summary Judgment (Pls.' Sur-Reply), Dkt. No. 62, filed December 15, 2010; Defendant's Supplemental Reply in Support of Cross-Motion for Partial Summary Judgment and in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Def.'s Supp. Brief), Dkt. No. 64, filed January 28, 2011; Plaintiffs' Supplemental Memorandum in Support of Their Cross-Motion for Partial Summary Judgment Relating to Segments of Right-of-Way Referenced in Ordinance 429 and for Which There is No Recorded Conveyance (Pls.' Supp. Brief), Dkt. No. 68, filed February 14, 2011; Motion by Bama Sea Products, Inc., Peter Denne Property Holdings, Inc. and the Batton, Samon, and Resch Families Requesting this Court to Reconsider its Dismissal of Their Claims (plaintiffs' Motion for Reconsideration or Pls.' Mot. Recons.), Dkt. No. 69,filed February 28, 2011; Defendant's Response to Plaintiffs' Motion for Reconsideration (Def.'s Resp. Recons.), Dkt. No. 74, filed March 30, 2011; Plaintiffs' Reply in Support of Motion for Reconsideration (Pls.' Reply Recons.), Dkt. No. 79, filed April 18, 2011; the Parties' Joint Stipulation in Response to this Court's June 7, 2011 Order (Stipulation I), Dkt. No. 83, filed June 17, 2011; Defendant's Supplemental Memorandum Addressing Ordinance 429 (Def.'s 429 Brief), Dkt. No. 86, filed July 7, 2011; Plaintiffs' Supplemental Brief on Ordinance 429 (Pls.' 429 Brief), Dkt. No. 87, filed July 7, 2011; the parties' Second Joint Stipulation (Stipulation II), Dkt. No. 89, filed July 12, 2011; and Plaintiffs' Reply Brief on Ordinance 429 (Pls.' 429 Reply), Dkt. No. 91, filed July 15, 2011.

II. Background

A. The Trails Act

Congress enacted the Trails Act Amendments to address the national problem of declining use of rail tracks and resulting removal of tracks. Preseault v. Interstate Commerce Comm'n (Preseault I), 494 U.S. 1, 5 (1990). The Trails Act Amendments authorize the Interstate Commerce Commission (Commission or ICC)¹ to preserve railroad rights of way not currently in use for rail service for possible future use by converting unused rights of way to recreational trails. Id. at 6; see 16 U.S.C. § 1241.

In order for a railroad right of way to be converted to a recreational trail, the railroad must first initiate abandonment proceedings with the Surface Transportation Board (STB) under 49 U.S.C. § 10903 (2006) or seek an exemption under 49 U.S.C. § 10502.² Caldwell v. United States (Caldwell I), 57 Fed. Cl. 193, 195 (2003), aff'd, 391F.3d 1226 (Fed. Cir. 2004). If authority to abandon is granted, and the railroad carries out the abandonment, the STB's jurisdiction over the railroad right of way usually terminates. Hayfield N. R.R. v. Chicago & N. W. Transp. Co., 467 U.S. 622, 633-34 (1984). A party interested in acquiring or using the railroad right of way may request a certificate of interim trail use (CITU) or a notice of interim trail use (NITU) from the STB.³ 49 C.F.R. § 1152.29(a), (c)-(d) (2010).

If a request for an NITU is received, and the railroad indicates that it is willing to negotiate an "interim trail use/rail banking agreement" (Trails Act Agreement), the STB⁴issues an NITU. 49 C.F.R. § 1152.29(d)(1);⁵ Caldwell I, 57 Fed. Cl. at 195 (citing Goos v. Interstate Commerce Comm'n, 911 F.2d 1283, 1295 (8th Cir. 1990); 49 C.F.R. § 1152.29(b)(1)). An NITU preserves the STB's jurisdiction, Caldwell v. United States (Caldwell II), 391 F.3d 1226, 1230 (Fed. Cir. 2004), and affords the railroad and the authorized trail group 180 days to negotiate a Trails Act Agreement, Caldwell I, 57 Fed. Cl. at 195; 49 C.F.R. § 1152.29(d)(1). If the parties do not reach a rail banking and interim Trails Act agreement within 180 days, the NITU authorizes the railroad to abandon the line. Caldwell I, 57 Fed. Cl. at 195 (citing Nat'l Ass'n of Reversionary Prop. Owners v. Surface Transp. Bd., 158 F.3d 135, 139 (D.C. Cir. 1998)). "If an agreement is reached, the NITU 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." Id.(citations omitted); 49 C.F.R. § 1152.29(d)(2).

B. The NITU

In March 2004 Tampa & Gulf Coast's successor, CSX Transportation, Inc. (CSX), filed a petition to abandon the railroad. Def.'s Resp. Defendant's Exhibit (DX) A (STB NITU); PFUF I Plaintiffs' Exhibit (PX) 1-QQ (STB NITU). In May 2004 the Chairman of the Pinellas County Commission wrote to the Secretary of the STB stating that "Pinellas County has just recently became aware of the abandonment procedure step taken by [CSX] concerning a segment of rail line in St. Petersburg." PFUF I PX 1-CCC (Letter from the Chairman of the Pinellas County Commission). The Chairman informed the STB that "we are documenting our interest in establishing a trail use for that property, as an extension of the Pinellas Trail. . . . If we are successful through the abandonment procedure and obtain this property, the Pinellas Trail will link the downtown area of St. Petersburg to the rest of the county by way of this multipurpose trail.'" PFUF I PX 1-CCC (Letter from the Pinellas County Commission). CSX agreed to negotiate with Pinellas County, PFUF I PX 1-DDD (Letter Re Abandonment Exemption), and the STB issued an NITU for the railroad, PFUF I PX 1-QQ (STB NITU); Def.'s Resp. DX A (STB NITU). In December 2005 CSX and The Trust for Public Land (TPL) reached an agreement pursuant to the NITU, and CSX executed a quitclaim deed to TPL. PFUF I PX 1-A (CSX & TPL Deed); Def.'s Resp. DX B (CSX & TPL Deed). The right of way was subsequently conveyed by TPL to the State of Florida. See Def.'s Resp. DX I (Counteroffer & Purchase Agreement). In 2007 Pinellas County constructed a public recreational trail on the right of way where Tampa & Gulf Coast once operated a railroad, see PFUF I PX 1-BBB (Trail Extension Plans for Project No. 06103-612); PFUF I PX 1-FFF (Photographs from Pinellas County documenting construction of the Pinellas Trail); PFUF I PX 1-GGG (Trail Extension Plans for Project No. 06103-112), and this suit followed.

C. The Fifth Amendment Takings Clause

The Trails Act is subject to the Fifth Amendment Takings Clause. Preseault I, 494 U.S . at 12-16....