Whispell Foreign Cars Inc v. The United States

• Decision Date: 07 February 2011
• Docket Number: No. 09-315L,09-315L
• Parties: WHISPELL FOREIGN CARS, INC., ET AL., Plaintiffs, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

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

No. 09-315L

United States Claims Court.

E-Filed: February 7, 2011

Fifth Amendment Rails-to-Trails

Takings Claim; Partial Summary

Judgment for Defendant;

Interpretation of Deeds to

Railroad; Deeds Conveyed Title

in Fee Simple to Railroad

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

Carol 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). Before the court are plaintiffs' Motion for Partial Summary Judgment, Docket Number (Dkt. No.) 29, filed June 16, 2010; plaintiffs' Memorandum of Law in Support of Motion for Partial Summary Judgment (Pls.' Mem.), Dkt. No. 31, filed June 16, 2010; plaintiffs' Proposed Findings of Uncontroverted Fact (PFUF I), Dkt. No. 30, filed June 16, 2010; the government's (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 Cross-Motion for Summary Judgment, Opposition to Plaintiffs' Motion for Partial Summary Judgment, and Memorandum in Support Thereof (Def.'s Resp.), 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; and 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, 2010.¹

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 Amendments), Pub. L. No. 98-11, 97 Stat. 48, to the National Trails System Act (the Trails Act), Pub. L. No. 90-543, 82 Stat. 919 (1968) (codified as amended at 16 U.S.C. § 1241 (2006)). 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 the government did not effect a taking when it converted a railroad right of way to a trail pursuant to the Amendments to the Trails Act because plaintiffs' predecessors-in-interest conveyed fee simple estates to Tampa & Gulf Coast Railroad Co. (individually and/or collectively with its successors, as the context requires, Tampa & Gulf Coast). Def.'s Resp. 2-3. The court finds that the government did not effect a taking of the following plaintiffs' properties and accordingly denies the following plaintiffs' claims because such plaintiffs' predecessors-in-interest conveyed fee simple estates to Tampa & Gulf Coast: (1) Bama Sea Products, Inc.'s claim relating to the Hayward Conveyance; (2) Peter Denne Property Holdings, Inc.'s claim relating to the Hayward Conveyance; (3) Joel M. and Jared M. Samon's claimrelating to the Hayward Conveyance; (4) Billie James and Laura E. Donald's claim relating to the Hayward Conveyance; (5) SBJ Resch Family Partnership Ltd.'s claim relating to the Hayward Conveyance; (6) Johnston Properties, LLC's claim relating to the Gilbart Conveyance; (7) Johnston Properties, LLC's claim relating to the Ainsworth Conveyance; (8) Whispell Foreign Cars, Inc.'s claim relating to the Ainsworth Conveyance; (9) Labar Enterprises, Inc. and Larry J. Ritzenthaler's claims relating to the Ainsworth Conveyance; (10) Ronald Hendriex's claim relating to the Pancoast Conveyance; (11) Connie and James Howard Batton's claim relating to the Pancoast Conveyance; (12) Whispell Foreign Cars, Inc.'s claim relating to the Pancoast Conveyance; and (13) Vito C. Farese's claim relating to the Pancoast Conveyance. The court therefore GRANTS-IN-PART and DENIES-IN-PART defendant's Cross-Motion for Summary Judgment and DENIES-IN-PART plaintiffs' Motion for Summary Judgment.²

II. Background

A. The Trails Act

Congress enacted the Amendments to address the national pro blem of shrinking rail tracks. Preseault v. Interstate Commerce Comm'n (Preseault I), 494 U.S. 1, 5 (1990). The Amendments authorize the Interstate Commerce Commission (Commission or ICC)³ to preserve railroad rights-of-way not currently in use for rail service for possible future use by converting those unused rights-of-way to recreational trails. Id. at 5-6; 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 or seek an exemption under 49 U.S.C. § 10502. Caldwell v. United States (Caldwell I), 57 Fed. Cl. 193, 195 (2003), aff'd, 391 F.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 generally terminates. Hayfield N. R.R. Co. 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.⁴ 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 a Trails Act Agreement, the STB issues an NITU. 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(d)(1). An NITU preserves the STB's jurisdiction. Caldwell v. United States (Caldwell II), 391 F.3d 1226, 1229-30 (Fed. Cir. 2004). The NITU affords the railroad and the authorized trail group 180 days to negotiate a railbanking and interim 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 railbanking 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. (internal citations omitted); 49 C.F.R. § 1152.29(d)(2).

B. The Four C onveyances

Through a number of conveyances during the early 1900s, Tampa & Gulf Coast acquired a right of way on land approximately two miles in length in St. Petersburg, Florida to construct and operate a railroad. DFUF ¶¶ 1-2; Pls.' Resp. to DFUF ¶ 2. This opinion addresses four of those conveyances affecting the thirteen claims identified in the third paragraph of Part I of this opinion (collectively, the Four Conveyances).

On November 23, 1914 Janet M. Hayward and H.E. Hayward executed an instrument (Hayward Conveyance) that conveyed to Tampa & Gulf Coast "A strip of land Thirty (30) feet on either side of the center line of said railroad, as located and being constructed" for the consideration of one dollar and for the benefits to be derived from the construction and operation of the railroad. Def.'s Resp. Defendant's Exhibit (DX) C (Hayward Conveyance); PFUF I, Plaintiffs' Exhibit (PX) 1-B (Hayward Conveyance); PFUF I ¶¶ 7-9, 11-13; Def.'s Resp. to PFUF I ¶¶7-9, 11-13.

On November 23, 1914 Harold W. Gilbart and Emma Gilbart executed an instrument (Gilbart Conveyance) that conveyed to Tampa & Gulf Coast "A strip of land Thirty (30) feet on either side of the center line of said railroad as located and being constructed" for the consideration of one dollar and for the benefits to be derived from the construction and operation of the railroad. Def.'s Resp. DX D (Gilbart Conveyance); PFUF I PX ¶-C (Gilbart Conveyance); PFUF I ¶¶ 14-17; Def.'s Resp. to PFUF I ¶¶ 14-17.

On March 15, 1 915 H.M. Pancoast and Sarah Pancoast executed an instrument (Pancoast Conveyance) that conveyed to Tampa & Gulf Coast "a strip of land... thirty (30) feet on each side of a center line described as follows..." in consideration "of the sum of one dollar and other consideration...." Def.'s Resp. DX F (Pancoast Conveyance); PFUF I PX 1-D (Pancoast Conveyance); PFUF I ¶¶ 20-22; Def.'s Resp. to

PFUF I ¶¶ 20-22.

O n May 7, 1917 Wilfred Ainsworth et ux executed an instrument (Ainsworth Conveyance) that conveyed to Tampa & Gulf Coast "A strip of land Thirty (30) feet on either side of the center line of said railroad, as located and constructed" for the consideration of one...