646 F.3d 910
Fed. Cir.2011Background
- Plaintiffs challenge government action under the Rails-to-Trails Act involving a right-of-way conversion to recreational trail.
- A Notice of Interim Trail Use or Abandonment (NITU) issued during the process and its legal significance is central to the takings claim.
- The court in Caldwell and Barclay held that accrual of Rails-to-Trails takings claims begins when the NITU is issued, potentially triggering a physical taking.
- In Ladd v. United States, the panel held that accrual occurs at the NITU issuance, even when no public trail is established, potentially yielding a physical taking.
- The dissent argues that NITU issuance does not automatically produce a physical taking; regulatory taking analysis may be required if no trail is established.
- The en banc petition focusing on correcting Caldwell and Barclay was denied, prompting a dissent highlighting the improper entrenchment of erroneous precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does accrual for Rails-to-Trails takings arise? | Ladd contends accrual occurs at NITU issuance (per Caldwell/Barclay). | United States argues accrual aligns with NITU issuance, triggering liability. | Accrual is not automatically at NITU issuance when no public trail is established. |
| Does the NITU issuance automatically constitute a physical taking? | NITU issuance can trigger a physical taking. | NITU issuance may be temporary or regulatory, not necessarily physical. | NITU does not automatically result in a physical taking; regulatory analysis may apply. |
| Should the court have reheard en banc to recalibrate precedent? | En banc review necessary to correct flawed Caldwell/Barclay rule. | Panel denial of rehearing en banc was appropriate. | Court denied rehearing en banc; dissent argues for en banc reconsideration. |
Key Cases Cited
- Caldwell v. United States, 391 F.3d 1226 (Fed.Cir. 2004) (NITU triggering Rails-to-Trails takings accrual)
- Barclay v. United States, 443 F.3d 1368 (Fed.Cir. 2006) (issuance of NITU triggers accrual; perpetual/temporary taking questions)
- Ladd v. United States, 630 F.3d 1015 (Fed.Cir. 2010) (recognizes accrual at NITU though physical taking may not occur)
- Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) (distinguishes physical from regulatory takings; long-standing takings dichotomy)
- Yee v. City of Escondido, 503 U.S. 519 (1992) (physical taking requires government occupancy of land)
- Preseault v. Interstate Commerce Comm'n, 494 U.S. 1 (1990) (NITU context and rail-highway rights rationale)
- Seldovia Native Ass'n, Inc. v. United States, 144 F.3d 769 (Fed.Cir. 1998) (timing for takings liability accrual)
- Forshey v. Principi, 284 F.3d 1335 (Fed.Cir. 2002) (en banc authority and proper construction of governing law)
- City of Sherrill, New York v. Oneida Indian Nation of New York, 544 U.S. 197 (2005) (cases resolved on issues not discretely identified in briefs)
- Pfizer, Inc. v. Teva Pharm. USA, Inc., 518 F.3d 1353 (Fed.Cir. 2008) (predicate legal issues necessary to resolve the case)