Hardy v. United States
131 Fed. Cl. 534
Fed. Cl.2017Background
- 112 landowners adjacent to a rail corridor in Newton County, Georgia, sued the United States alleging a Fifth Amendment taking under the Trails Act after the Surface Transportation Board (STB) issued a Notice of Interim Trail Use (NITU) on August 19, 2013.
- The original NITU described the line as running between milepost E65.80 (described as the line’s crossing of Route 229 in Newborn) and E80.70 in Covington.
- In 2016 the rail owner (CGA) and STB filings clarified that milepost E65.80 was actually just east of the Ziegler Road crossing west of downtown Newborn; STB issued a correction amending the NITU on November 18, 2016.
- Eleven plaintiffs (twelve parcels) were affected by the NITU’s narrowing; they contend the original NITU effected a taking from August 19, 2013 until the correction.
- The government moved for partial reconsideration, arguing the correction was ministerial/retroactive and thus no taking occurred as to the omitted parcels; plaintiffs argued the original NITU triggered the taking and the correction only affects duration.
- The Court denied reconsideration, holding issuance of the original NITU effected a taking and the 2016 amendment is a subsequent NITU (effective on its service date) that only affects the taking’s duration (Aug. 19, 2013–Nov. 18, 2016 for affected plaintiffs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does issuance of a NITU effect a Fifth Amendment taking? | NITU issuance effects a taking; the August 19, 2013 NITU accrued plaintiffs’ claims. | Government contested applicability to some parcels but did not dispute the bedrock rule. | Court: NITU issuance effects a taking; post‑NITU events do not negate that. |
| Does a later correction to a NITU negate or retroactively undo the original NITU’s taking? | Correction only affects duration; the cause of action accrues at the original NITU. | Correction is ministerial/retroactive, so original NITU should not have effected a taking for omitted parcels. | Court: The November 18, 2016 amendment is not retroactive; it is a subsequent NITU effective on its service date and does not undo the original taking. |
| When does a Trails Act claim accrue if multiple NITUs are issued? | Accrual occurs at issuance of the first NITU concerning the property. | Argued correction should relate back to the original NITU to avoid accrual for certain parcels. | Court: Accrual is triggered by the original NITU; subsequent NITUs do not alter accrual. |
| What is the relevant period of the temporary taking for affected plaintiffs? | Taking began with original NITU (Aug. 19, 2013) and ended with STB correction (Nov. 18, 2016). | Sought to eliminate or shorten that period by treating the correction as retroactive. | Court: Temporary taking runs Aug. 19, 2013 – Nov. 18, 2016; amendment affects only duration/damages. |
Key Cases Cited
- Ladd v. United States, 630 F.3d 1015 (Fed. Cir. 2010) (issuance of NITU effects accrual of Rails‑to‑Trails takings claim)
- Barclay v. United States, 443 F.3d 1368 (Fed. Cir. 2006) (NITU blocks state reversionary interests; NITU alone triggers takings inquiry)
- Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2004) (first NITU marks finite start of temporary or permanent takings claims)
- Ladd v. United States, 713 F.3d 648 (Fed. Cir. 2013) (accrual occurs at issuance of the first NITU concerning the property)
- Rogers v. United States, 814 F.3d 1299 (Fed. Cir. 2015) (confirming that a NITU is the operative event for Trails Act takings accrual)
- James v. United States, 130 Fed. Cl. 707 (Fed. Cl. 2017) (post‑NITU events may affect duration/compensation but not the existence of a taking)