Barclay v. United States

Reinhardt, Mary Rodgers, Darrell 1863,3 staple it was a at common J. least Turner, Thompson, Robert Geneva Rules of Evidence have The Federal law.4 Turnquist, Turnquist, E. Donald Clark exception two aspects codified Weber, Wiebe, Plain- and Marlene J. Thus, excep- of Rule 803. subsections tiffs-Appellants, the state- firmly rooted. Whether tion is properly Georgia’s fit question ments v. placed has not been exception gestae res STATES, Defendant-Appellee. here, accept and thus we the UNITED at issue Appeals’ decision Georgia Court Body Works, Inc., Renewal exception applies. gestae res

Georgia’s Plaintiff-Appellant, Conclusion V. district court’s denial of affirm the

We States, Defendant-Appellee. § 2254 petition. Espy’s 28 U.S.C. 05-1255, Nos.

AFFIRMED. Appeals, Court of

United States Federal Circuit. April 2006. BARCLAY, Barclay, John Constance

Royer Barclay, Barclay, Althea John

Amos, Bacon, Marcia J. Ronald J.

Bartel, Bergen, Boyle, E. Melvin John Ehrlich, Ehrlich,

Jonathan Florence Graumann, Kliewer,

Donald Ruben Kroupa, Kroupa,

Alvin Barbara Bur Ledell, Miller, Lee Dale

dett Vernon Mitchell,

Minns, A. Mid Frank Kansas Association,

Cooperative John F. Presnell,

Opat, Regier, Robert Janet

Sonja Reinhardt, Regier, Don Janice (1863). concept gestae 3. See Ga.Code 3696 common law of the res with 803(1) (2)). Fed.R.Evid. Graham, Fed. & See Michael H. Prac. Proc. (explaining replacement § 7043 Illig, appeal et al. in

curiae Sarah him on the brief were J. Robert With Alok Ahuia. counsel on Sears and Of David Cooper, brief were Charles J. H. Lehn, Cooper David Thompson, and M. & Kirk, PLLC, Washington, of DC. PROST, NEWMAN, DYK, Before Judges. Circuit Opinion for the court Circuit filed Judge DYK.

Dissenting opinion by Circuit filed Judge NEWMAN.

DYK, Judge. Circuit for The United States District Court District Kansas and of Feder of the Court al dismissed Claims several landowners’ challeng Fifth Amendment claims ing operation of the National Trail (the Systems Act”), Act 16 “Trails U.S.C. Fex, Fex, Ackerson Kauffman Cecilia 1247(d). § Barclay, et al. v. United DC, PC, argued plain- for Washington, of States, F.Supp.2d (D.Kan.2004); 1169 Barclay, et al. With tiffs-appellants John Works, Body Renewal Inc. v. United was Neis Ackerson. her on brief States, (2005). 64 Fed.Cl. 609 Applying Fresno, California, Rosati, of our Robert J. decision Caldwell v. United (Fed.Cir.2004), argued plaintiff-appellant for Renewal 391 F.3d 1226 cert. de - Works, -, Body nied Inc. U.S. (2005) (mem.), L.Ed.2d 72 both the district McFadden, Attorney, Appellate Lane M. court and the Court of Federal Claims Section, Environment & Natural Re- held that the claims be- were time-barred Division, Depart- sources United States they years were filed than cause more six DC, Justice, Washington, ment of ar- after Transportation the Surface Board defendant-appellee in gued for (“STB”) issued Notices of Interim Kelly him on the were A. John-

With brief (“NITU”). Trail orUse Abandonment We son, General, Acting Attorney Assistant agree governs, af- and we Kathryn Ar- E. Kovacs John E. firm. Arbab, bab, Attorneys. Attorney, E. John defendant-appellee in 05-5109. argued BACKGROUND him on were A. Kelly

With the brief John- son, General, Acting Attorney Assistant I Kovacs, Kathryn Attorney. E. (Thor) II, By railway F. Lathrop

Mark Hearne & interstate nation’s L.C., 272,- Louis, Missouri, Gage system peak for amici had shrunk from its St. 141,000 jurisdiction to about F.3d at 1230. While retains track 000 miles of track, right-of-way, may reopen continue over the and railroads STB miles of exemption year. proceedings Preseault to substitute a new abandoning track each 1152.29(f), § operator, 49 C.F.R. Commerce Interstate (1990) accept requests, late-filed trail use 108 L.Ed.2d I”). 1152.29(e)(1), (“Preseault or to vacate a no- Supreme As the Court C.F.R. I, exemption tice of and issue a purpose in Preseault explained willing- unused a railroad files its statement of preserve Act was to late the Trails negotiate, by converting 1152.29(g). them ness to C.F.R. rights-of-way trails. Id. The mecha- into recreational I, In Preseault the Court noted but did (a NITU) staying order nism is STB “Congress not resolve the claim that ... during pendency railroad abandonment the Fifth preclud violated Amendment of trail use. ing property reversion of state interests.” I, 914; in 494 494 at 110 see also id. at detail Preseault U.S. S.Ct. As described 22, 110 (O’Connor, J., 7-8, concurring) at Preseault v. S.Ct. U.S. (operation “may delay 1537-40 of the Trails Act 100 F.3d (“Preseault (Fed.Cir.1996) (en banc) ”), property enjoyment II owners’ of their rever- Caldwell, 1228-30, interests,” sionary in or- which “burdens and de and 391 F.3d at interest”). subject In property to a line that to feats the Preseault der abandon II, jurisdiction, apply a railroad must we established that the elimination of STB § adjacent landowners’ state law reversion- the STB under either 49 U.S.C. (standard abandonment), ary or 49 interests when is sus U.S.C. abandonment (abandonment by exemption).1 pended § under the Trails Act constitutes a taking. Fifth Amendment 100 F.3d at proceedings appeals All involved these Caldwell, we held that such a exemption proceedings. were Under the NITU, Act, may Trails the STB issue a claim accrues statute-of-limitations exemption proceedings purposes pro for 180 abandonment suspending ceedings suspended by into an are the STB’s issu days party to allow a third to enter Caldwell, ance of a NITU. agreement with the railroad to use the (the Barclay appel appellants 1235. The right-of-way as a recreational trail. 49 05-1255) (the 1152.29(b)(2) (d) (2005). and Renewal § . If lants No. C.F.R. 05-5109) challenge in No. both operator appellant and the trail reach an the railroad decision indefinitely the correctness agreement, “the NITU extends ” Caldwell, particular to the facts applicability .... and its permit interim trail use 1230; claims. takings of their 391 F.3d at see 49 C.F.R. 1152.29(d)(1).

§ If no trail use reached, the NITU converts into an II exemption, allowing effective notice of entirely Barclay appellants filed their Trails railroad to “abandon the line The I, Act claims in the United States liquidate its interest.” Preseault Caldwell, 914; Kansas Court for the District of U.S. at see 391 District 1, 1996, (2000). system. January rail 49 U.S.C. 1. On the STB succeeded state agencies. Interstate Commerce Commission as "STB” to refer to both We use authority regulate agency the inter- with begun by interests complaint alleged The April “could not amount to a first NITU” and rights-of-way running across that railroad separate taking property triggering property in Kansas Barclay appellants’ ” Barclay, F.Supp.2d a new .... claim into three different recre- converted were (the Barclay appellants timely at 1179. Meadowlark, Sunflower, ational trails trails) jurisdiction appealed, pursu- and we have pursuant to the Flint Hills 1295(a)(2). ant to 28 Act, U.S.C. that these con- conversions Trails takings. Fifth Amendment stituted

government moved to dismiss on the Ill complaint ground that was not filed year statute limitations. within the six complaint in the Renewal’s Court of govern- We decided Caldwell while alleged that Federal Trails-Act Claims pending. motion was Because the ment’s of a railroad run- conversion for all three were is- initial NITUs trails ning Renewal’s across Califor- to the cutoff date for the statute prior sued nia a taking. constituted The STB author- limitations,2 the district dismissed court May ized effective complaint. operator and the a trail putative filed 23,1995. request May use on The railroad court found The district that the Su- had track equip- removed most of the and preme Pipe in Court’s decisions American 1995, by July though ment Utah, 538, & v. 414 Co. U.S. Construction had not under been consummated federal 756, (1974), 94 38 L.Ed.2d 713 subsequently law. The STB issued Co., Parker, Inc. 462 Crown Cork & Seal v. 23, 1995, and right- NITU on October 2392, 345, U.S. 103 S.Ct. 76 L.Ed.2d 628 of-way into a trail. was converted (1983), required tolling the of limi- statute in months, weeks, complaint Renewal filed its the Court tations for eleven three 11, on December Federal Claims 2003. day, during the pendency and one States, The Court of Federal Claims dismissed the v. F.R.D. 638 Swisher United 189 complaint, relying on Caldwell conclude (D.Kan.1999), alleging a class action Trails that claim accrued on “Renewal’s October in Barclay appel- Act which issued,” day the NITU was lants were class members. The district six-year period. well outside the limitations ac- court nevertheless concluded that the Renewal, Fed.Cl. at 615. 64 Renewal filed, timely tion not our applying was timely jurisdiction have appealed, and we that the accrued holding Caldwell claims 1295(a)(3). pursuant 28 U.S.C. original issuance NITUs. rejected district court that re- contentions NITUs,

placement rather than the initial DISCUSSION NITUs, triggered the accrual of their Flint Hills claims for the and Sunflower We review both the district court’s trails, holding subsequently jurisdiction that issued dismissal for want of and the covering way same rights legal NITUs of the Court of conclusions Federal Raisins, in effect Lion “merely blocking continued of Claims without deference. 24, (Flint trail). Septem- 2. May The relevant NITUs were 1996 Hills As noted issued on 28, (Meadowlark 12, trail), April 7, ber April complaint filed on was 1995, (Sunflower trail), and March 1994). States, delayed Accrual Inc. v. until a trail United (Fed.Cir.2005); agreement use is executed or the trail Applegate (Fed.Cir.1994). States, operator physical possession takes F.3d right-of-way. agree with the district court and the We that these actions

Court of Federal claims are time-barred under our decision II Caldwell.3 Barclay appellants and Renew argue al first that Caldwell was wrongly I decided and should be overruled. Panels by previous of this court are explained prece bound We dential until taking, any, by if decisions overturned right- when a “[t]he Supreme Court or this court en of-way is converted to interim trail use banc. Kimberly-Clark v. Fort Corp. under the Trails Act occurs when state law Howard Pa Co., (Fed.Cir.1985). per reversionary property interests that would The court declined to adjacent vest in the landowners rehear Caldwell en otherwise banc, Caldwell, vesting.” Supreme Court denied cer are blocked from so — tiorari. Caldwell v. United 391 F.3d at 1233. Abandonment is sus -, U.S. 163 L.Ed.2d 72 pended and the interest (2005) (mem.). event, any majority opera the railroad and trail blocked “when arguments rejected of these were Cald tor communicate to the STB their inten new, they well. To the extent are negotiate tion to a trail use they are without merit. agency operates the issues an that NITU preclude to abandonment under section and amici that appellants contend 8(d)” of the Trails Act. Id. We concluded wrongly Caldwell was decided insofar as that issuance of the NITU is the “[t]he on federal than to relied rather state law only government railbanking action in the determine when abandonment and rever- operates that process prevent to abandon rights-of-way of occur. sion railroad preclude ment of the corridor and to the vesting reversionary of state law interests argues Renewal that because the rail- (em in right way.” the of Id. at 1233-34 equipment road had removed its track and Thus, original). a phasis Trails Act by from the June effec- accrues, taking begins claim and tively abandoning it under California law all, if at on issuance of the NITU. We exclusive, granting and Renewal “full and “[wjhile explicitly held in that the undisturbed, possession and uncontested taking may by be abandoned ... the ter property and use” of the until trail use NITU[,] mination of the the accrual date began, Br. of at App. Renewal the single taking of a October, remains fixed.” Id. at of did issuance the NITU 1995 1235. The issuance of the NITU is the not block Renewal’s interest. only Thus, event that must occur to “entitle the Renewal concludes that its claim did plaintiff to institute an Creppel physically action.” v. not accrue until it was ousted (Fed.Cir. 41 property began. F.3d 631 from the when trail use agree period, we we Because with the district court tolled the limitations do not decide Barclay appellants’ required that the claims were time- here whether the Swisher action toll- assuming ing. barred even that the Swisher action

1374 possession. law ouster from As Renewal it- generally state creates

While right-of-way, admits, NITU, interest a railroad self after issuance I, 8, 16, 494 at seault U.S. “the easement continued existence be- Pre 914,4 disposition reversion “the of S.Ct. yond the when it time otherwise would subject ... ary [is] interests Br. of Reply have been abandoned.” Re- jurisdic plenary’ and ‘exclusive [STB’s] newal, Thus, triggers at 4. the NITU ac- abandonments” rail regulate tion crual.5 way. Id. at rights of road argu- law Barclay appellants’ state Transp. & Co. v. (quoting Chi N.W. case ment is without merit. In the also Co., Tile Kalo Brick & trail, that they insist Meadowlark (1981)). 1124, 67 L.Ed.2d NITU would not itself block a reversion if dictates when abandonment Federal law right-of- the railroad continued use the Thus, Renewal is incorrect that occurs. way purposes for railroad after the NITU timing law of the aban governs state They argue under was issued. Kan- cannot occur un donment. Abandonment (which assertedly sas law different from law, by til authorized federal law), the occur only California can and the precludes re after law abandon- federal authorized would follow if abandonment version that is, ment —that ceases 1247(d) were consummated. U.S.C. operations the trail operator assumes (2000); 1152.29(d)(1); Cald C.F.R. possession. urge physical They thus well, 1229; Preseault v. In F.3d physical occupation, trail operator’s Comm’n, 853 terstate Commerce NITU, not the Meadowlark trail Cir.1988) (“Until (2d 145, 151 the [STB] if blocked the reversion.6 But even under abandonment, issues certifícate Kansas law the reversion would occur railway subject to property remains until after federal authorization of aban- jurisdiction, law may [STB’s] and state donment, that state law was still reversion property.”); not cause a reverter NITU, delayed issuance Nat’l Fed’n v. Interstate Com Wildlife the claim still accrued with the issuance of merce similarly It no NITU. makes difference (D.C.Cir.1988) (“Nor may state law cause may that railroad use have continued after right-of-way prior a reverter to an the NITU The issued. termination of rail- abandonment.”). Thus, [STB]-approved delayed road use by was still the NITU. there no until could be abandonment au by thorized federal law. The NITU Ill abandonment; barred the Barclay appellants The contend cannot after of a also occur issuance NITU distinguishable while the a number NITU is effect. barrier is on NITU, physical grounds. to reversion is the States, appears argue 4.In v. United 376 F.3d to that the Toews Renewal also rail- rights (Fed.Cir.2004), road to use conferred Renewal the we reiterated that state law right-of-way parking during period for the controls basic issue of trail use the whether is use, and that the conversion to trail beyond scope right-of-way. Id. right use ousted Renewal from the to use question merits This is distinct parking. Whether or not this from the of claim See issue accrual. also correct, alleged ouster was not conse- Hash v. 1319- quence taken of actions under the Trails Act. (Fed.Cir.2005) (applying Idaho law to de- termine whether interests exist- Illig 6. Amici and Gale advance Sarah also this ed). argument. same A inal operator propose trail to to transfer rights responsibilities trail use to a Barclay argue appellants new trail operator. See Rail Abandon- original issued for the Flint NITUs ments, 2 I.C.C.2d at 606-08 (recognizing Hills trail were vacated and that a second such “serial appropriate). trail use” as taking occurred when a new was NITU The regulations provide a mechanism Although of a issued. issuance NITU re for substituting operators trail updat- quires operator that at least one trail file a ing NITUs without abandonment. The willingness respon statement assume original replacement operators trail sibility for the trail before issuance of the file a notice in accordance with 49 C.F.R NITU, and that trail operator is listed 1152.29(f)(1). (nam- Then, a new NITÜ NITU, ordering of a clause NITU ing operator) the new trail is substituted typically is not to a particular limited trail original for the (naming original NITU operator7 negoti and a railroad is free to trail operator). As the regulation pro- agreement any ate a trail use party. with vides, reopen “[t]he board will the aban- Rail Rights- See Abandonments —Use of exemption donment or proceeding, vacate Trails, (Sub. of-Way as Ex Parte No. 274 CITU; existing or NITU and issue an 13), 591, 605-06, 608, No. I.C.C.2d appropriate replacement or CITU (1986) (“Rail Abandonments”); WL 68617 to the new trail user.” 49 C.F.R. Neb. Trails Council v. Transp. Surface 1152.29(f)(2). gap There is no between Bd., (8th Cir.1997); 120 F.3d Goos original replacement NITUs. v. Interstate Commerce Though formally “vacat[ing]” original (8th Cir.1990). Nonetheless, NITUs, that, the STB makes clear in sub- that, is common if after issuance of the stance, it “substituting” “in users operator NITU the trail named proceedings.”8 the [same] original unwilling NITU becomes or un trail, responsibility able assume for the circumstances, agree Under these we operator a new will be able to formally be with the district court’s conclusion that the substituted issuance of a new NITU series of STB NITU orders must be agreement before an with the railroad is viewed part single as of a and continuous reached. It is also common for origi government action rather than as new tak- operator nal trail unwilling become ings. Any approach other result in would unable to serve after an is multiple potential takings of the same re- railroad, Caldwell, reached with orig- versionary and for the interest. we re- See, e.g., (Sub. 89X), Ry., 7. Cent. Kan. LLC—Abandonment Docket No. AB-33 No. 1995 WL Exemption Marion & (1995) (same). McPherson Coun 569357 —In ties, KS, (Sub. STB Docket No. AB-406 No. 6X), (1996) (original 1996 WL 169774 Sun Exemp 8. See Mo. Pac. R.R.—Abandonment NITU) (imposing flower Trail no limitations Counties, KS, Osage, Lyon, tion—In & Morris negotiating parties, referring only on to "the (Sub. 111X), STB Docket No. Ab-3 No. Mo. specifying requirements trail user” in the Exemption Pac. R. Co.—Abandonment —In use); interim trail Mo. Pac. R.R. Co.—Aban Miami, Franklin, Counties, KS, Osage & STB Exemption donment Morris & Dickinson —In (Sub. 115), Docket No. AB-3 No. Mo. Pac. R. Counties, KS, (Sub. STB Docket No. AB-3 No. Exemption Co.—Abandonment Morris & —In 121X), (1995) (Flint 1995 WL 137149 Hills KS, Counties, Dickinson STB Docket No. AB- trail, Segment original NITU) Dickinson (Sub. 121X), (1997). 3 No. 1997 WL 414314 (same); Union Pac. R.R. Co.—Abandonment KS, Exemption County, McPherson STB —In

1376 Moreover, it operator. trail is clear that following United approach, jected that Dow, 17, 24, authority had to extend the the STB v. States (1958), that did not occur 1039, where the NITU and abandonment 1109 2 L.Ed.2d Birt, at 585- in the interim. 90 F.3d as the See dismissed “bizarre” Supreme Court Birt, argued that differ- a landowner the could be “two 87. that there contention by retroactively its property, with STB abused discretion ‘takings’ of the same ent (the a of extending CITU version the determined as some incidents issued standard abandonment and some as of the other.” So NITU of one date pro- exemption rather than proceedings was not consummat- long as abandonment eight days after the CITU ex- ed, jurisdiction ceedings) over retained the STB The District of Columbia Circuit pired. Mexican right-of-way. See Baros Tex. (5th 228, Cir.2005); disagreed, concluding that the STB re- Co., Ry. Bd., jurisdiction right-of-way, tained over Transp. Birt v. Surface (D.C.Cir.1996). Thus, exten- authority and thus had to issue the any extensions sion, did consum- original of the railroad not NITU were because or modifications takings. mate while the CITU was separate potential abandonment not

expired. Id. at The new CITU merely a continuation of the old. became B agree with District of Columbia We Here, the rail- Circuit’s decision Birt. required No different result road did not consummate abandonment of Trail The for the NITU. initial Sunflower file the Sunflower Trail a expire Trail NITU was set to Sunflower with notice of consummation the STB be- Although opera a June 1997. new 6, 1997, day the initial tween June request tor a to be filed substituted day expired, NITU and June for the of a new on June issuance NITU replacement NITU was issued.10 Thus not until the STB did issue NITU separate NITU not a taking. new was later, 1997. days Barclay on June argue under circum appellants these inoper original NITU became

stances C ative, occurred, and the Barclay appellants The re also insist landowners’ interest reverted. placement in their was a Trail NITU did NITU view dis the Meadowlark because, tinct affected government action that a block their interest Caldwell, however, Here unlike taking. again, new new the NITU at issue merely 180-day public condition substance extended the contained use original potential pursuant NITU9 and listed new issued U.S.C. 10905. Ry., year Exemp- donment with the within one Cent. Kan. LLC—Abandonment STB Counties, KS, per- tion—In Marion & McPherson exemption effective date the notice 6X), (Sub. STB No. Docket AB-406 No. mitting C.F.R. abandonment. reconsideration, (1997) (“Upon WL 323576 67876-01, 1152.29(e)(2); Fed.Reg. exemption served ... on March notice (Dec. 1996) (adding 67896-97 13, 1996, exempting the abandonment 1152.29(e)(2)). jurisdic- The STB retains line above is modified to the extent described right-of-way tion until the notice over of necessary implement to interim trail use/rail Baros, consummation filed. See 13, 1997.”). banking ... until December at 236. 24, 1996, 10. As of December the railroad must a notice of aban- file of consummation offering requires condition donment and thus to enable a public use trail use parties agreement. for to interested But for the

rights-of-way sale NITU’s trail use alia, for, condition, “high- inter using the railroad could abandon the transportation, immediately reversion, line ways, trigger other forms mass conservation, energy production public or trans- since the use condition did not itself mission, preclude 49 U.S.C. recreation.” abandonment. See Fritsch v. In- (2000). Here, 248, the time the issuance terstate Commerce (section (D.C.Cir.1995) NITU, operator a trail was named precludes willingness and the railroad had stated its sale or disposal right-of-way, other abandonment); negotiate agreement. to a trail use The but not Nat’l Wildlife Fed’n, (what alternatively requested operator trail 850 F.2d at 701-02 is now condition, appar- use public issuance of the section 10905 “has no rail banking provi- ently theory public on the that a use condi- preempt sion that would state laws that preserve right-of-way tion would for could otherwise result reversion of policy, trail use. accordance with its rights-of-way abutting landowners upon service”). the STB issued both conditions simulta- a cessation of rail The bar on neously. The STB the NITU made abandonment effected the NITU’s trail public clear use condition was triggered use condition accrual of the “subject agree- to the execution of a trail just cause of action here as it did in Cald- ment,” and that an interim trail “[i]f use/ well. banking agreement

rail is executed within above, 180-day period specified D expire will to the ex- public use condition banking agreement tent the use/rail Finally, Barclay appellants ar segment.” covers the same line Union gue that their Sunflower Trail claims did Exemption— Pac. R. Co.—Abandonment not accrue when the initial NITU was KS, County, In McPherson STB Docket on April issued because after the (Sub. 89X), No. No. AB-33 1995 WL replacement was issued on June (“Meadowlark (1995) NITU”). 1997, group petitioned of landowners No pub- was reached under the reopen exemption proceeding and va condition, expired lic use and it after 180 replace cate both the initial NITU and the days. petitioners argued ment NITU. The the railroad omitted material facts in its Barclay appellants’ theory appears and that exemption notice of CKC was if pur- to be that were financially operator. unfit to serve as trail public chased under use condition for petition reopen The STB denied the on scope use that right- was within the petitioners ap December 1998. The of-way, example, continued rail use for Circuit, pealed to the District Columbia transit, might mass reversion not have oc- which affirmed in part and reversed law, curred under state and hence that the part on October See Jost blockage of the reversion did not occur Bd., Transp. 194 F.3d 79 Surface public expired. until the use condition (D.C.Cir.1999). remand, fur On the STB reasoning again We do not think that can be explained Caldivell ther its de distinguished primary petition May on this basis. The nied the 2001. That object of preclude appealed. the NITU was to aban- denial was not NEWMAN, Judge, dissenting. that Barclay appellants contend Circuit

The until the petition not accrue their claim did holds Fifth panel majority that a finally May denied reopen was taking Amendment occurs in a rails-to- as though original the NITU even case, compensa- actionable for trails and is replacement never the NITU extended tion, a government on the the issues date merely is This effective. ceased to be of Interim Trail Use Notice or Abandon- argument rejected of the another version — (“NITU”). announces ment Such Notice original the NITU in Caldwell—that railway use right the railroad’s to abandon taking the viewed as because should not be negotiate potential opera- and with a trail might render the NITU subsequent events agreement Trail tor. If an for interim trail use is The Sunflower only temporary. original reached, when the NITU right-of-way claims is rail-banked accrued issued, re- petition of the regardless possible railway future use. 16 U.S.C. open. 1247(d). If not such an is days, reached within or an extension

IV thereof, right-of-way is deemed aban- summary, to Caldwell and we adhere any and are ex- doned easements therefor original hold that the issuance applica- with the tinguished accordance of the cause of triggers accrual NITU state law. Preseault v. Interstate ble See appellants’ arguments action. The 5, 110 Commerce 7 n. urging trigger, a different de- these cases (1990) (“If agree- 108 L.Ed.2d 1 on when abandonment occurred pending trail use qualified [for ment interim with a law, the last NITU in a under state when reached, operator] interim trail use issued, or NITU was series was not, thereby If authorized. or CITU attack, subject to collateral longer no automatically converts into an effec- merely emphasize the correctness of the certificate notice tive or of abandon- Appellants’ arguments lead rule. ment.”). Thus, the statute and the NITU multiple takings single potentially to a do make if mandatory, trail use and endless litigation interest and achieved, is not trail use statute effects concerning appropriate date for accru- railway abandonment of use and reversion al, and leaving gov- landowners thus easement. great uncertainty ernment in a state of as respective rights obligations. to their and taking FifthA Amendment cannot occur Here, Caldwell, that as we conclude NITU, upon of a simply issuance because supplies single bright-line law deprivation of the reversion has not rule that these for accrual avoids adverse occurred, yet may never If occur. consequences. abandoned, railway use is simply the ease- extinguished, ment is is un- CONCLUSION burdened, and no occurs. Thus the district decisions court issuance of Notice of Interim Trail Use Federal dismissing Court of Claims per taking, Abandonment is not a se complaints appellants’ are right no of compensation arises on issu- My colleagues ance of the Notice. err in AFFIRMED. holding period limitations for COSTS compensation Fifth Amendment starts accrue, brought, No costs. an action can be it immediately upon suggested issuance of the NITU. when to be taken. Clarke, 253, United States v. in Hair v. States 350 U.S. explained As United (1980) 1127, 63 (Fed.Cir.2003), L.Ed.2d 373 period a of limi- F.3d 1253 “physical by Court stated that takings gov- not accrue until an issue is tations does may ernmental bodies that entitle a land- actionable: owner to compensation,” sue for 445 U.S. a The basic rule is that the clock of 256, 1127, at 100 S.Ct. occur with the begins statute of limitations to run from occupation property: “Condemna- plaintiffs cause of action date proceedings, depending tion appli- on the “accrues,” ... A cause of action “ac- statute, cable require various affirmative a plaintiff complete crues” when the has action part on the of the condemning au- present cause of action. “The earli- thority. To a accomplish taking by sei- opportunity complete pres- est for a zure, hand, on the other a condemning ent of action is that moment cause authority only need occupy the land in legally recog- plaintiff has suffered 257, question.” 445 U.S. 100 S.Ct. 1127. nizable harm at the hands of the defen- In Nollan v. Coastal California dant, such as the time of contract breach 3141, 483 U.S. 107 S.Ct. wrong.” of a or the commission tortious (1987) L.Ed.2d 677 the Court made clear permanent occupation is the Corman, (quoting Id. at 1260 Calvin W. permanent right of triggers traversal that (1991)). Actions 6.1 Limitation of right compensation, owner’s not the As in Preseault v. discussed United negotiations. commencement of gen- See States, (Fed.Cir.1996), 100 F.3d 1525 Dow, erally United States conversion of to a (1958) (the 78 S.Ct. 2 L.Ed.2d 1109 trail can recreational constitute a Fifth taking occurred property when the was However, taking. Amendment the cause occupied, not when the deed was trans- right compensation of action and do not later). ferred some time In Loretto v. vest until the claim In Boling accrues. v. Teleprompter Corp., Manhattan CATV (Fed.Cir. States, 220 F.3d 1365 U.S. 73 L.Ed.2d 868 2000) this court reiterated that: “In gener (1982)the permanent Court focused al, a claim takings accrues when ‘all events physical occupation property in de- government’s which fix the alleged liability occurred, termining taking whether a had plaintiff have occurred and the was or legislative not the or administrative events should have been aware of their exis occupation. authorized that ” (quoting Hopland tence.’ Id. at 1370 prospective, requires The NITU is Band Pomo Indians v. United by additional rail steps carrier and (Fed.Cir.1988)). 1573, 1577 855 F.2d options others before either of the two my colleagues’ ruling taking From that a legal authorized the NITU will take possibility occurred as soon as the arose effect. See 49 C.F.R. 1152.29. The for trail conversion as an alternative to require NITU does not that the railroad must, right-of-way, abandonment of the I must an consummate for rails- respectfully, dissent. to-trails conversion. C.F.R. general physical rule 1152.29(d), (e)(2); §§ see National Wild cases is that the is actionable when Federation v. Interstate Commerce life (D.C.Cir. fixed, Comm’n, liability is taken and 700-02 negotia- 1988). while the trail use compensation in the context of As discussed of ongoing; period a the limita- of NITU must be tions were the issuance whether suit could have impact cannot accrue before by an environmental tions preceded Hair, of is F.3d at aspect brought. the NITU been 1260. study, the tentative stressed: Indeed, panel majority reinforces the not of NITU or CITU is an

[Issuance recognition long this in its that “So as view abandonment, the but only incidental to consummated, was not the abandonment guarantee a of eventual also is itself not the jurisdiction right- over STB retained or CITU serves trail use. The the Maj. op. “key 1376. Yet of-way.” at opportunity for the only provide “to an accrual is the date on purposes date for trail to and users prospective plaintiffs clearly land has been which the thus, an negotiate agreement; [the when Boling, 220 permanently taken.” F.3d is a or there issues] NITU CITU STB Seldovia). taking (citing at A claim right- a particular that only possibility a any than when the cannot accrue earlier be used a recre- of-way actually will as required event to indispensable establish trail.” ational liability the has government’s occurred. States, v. 403 F.3d See Hash United Comm’n, 911 v. Interstate Commerce Goos (“On (Fed.Cir.2005) railway’s (8th Cir.1990) (emphasis of its these original). railway owners were disencumbered issued the NITU government When easement, upon of this land conversion herein, known it was not whether trail, owners’ public a these a re- right-of-way would be converted to use, public interests were taken for ensuing negotia- trail. If the creational set forth in principles accordance with failed, had such that trail did not tions cases.”) the Preseault taking being, into there could be no come holding majority errs in that panel for compensa- on trail A suit based use. negotiate “willingness railroad’s ripe taking is not until the occurs. tion maj. at agreement,” op. trail use panel majority states “the termi- taking. an Fifth Amendment actionable delayed by was still nation of railroad use Although my colleagues extol the virtues NITU,” maj. producing at op. period of a line” for “bright accrual delay in incongruity whereby despite the limitations, citing v. abandonment, majority holds that the (Fed.Cir.2004), States, 391 F.3d 1226 their already A accrued. cause of action had use, bright compensa- line vest choice of would “delay” possible conversion to may rights although taking tion no ever unknown whether trail while remains a Notice of all, occur. The issuance of Interim per taking occur is not se use will taking, Trail is not a whether or not already entitlement to com- Use with vested abandoned, railway already has been A claim does not accrue use pensation. trail use is suc- independent until “all have occurred that fix the events taking, For a cessfully the Government and consummated. alleged liability harm actual or immi- plaintiff alleged to institute an action.” “the must be entitle nent, conjectural hypothetical.” v. United not Seldovia Native Ass’n (Fed.Cir.1998). Arkansas, The Whitmore (1990). 1717, 109 L.Ed.2d herein could have sued plaintiffs Preseault, 100 F.3d at ernment advises that there As elaborated are some twen- (“We ty-two support pending arising find no Vermont law cases from the Na- proposition, propounded System for the the de- tional Trails Act. It appropriate dissent, accepted by necessary fendants and for this court clarify rail- scope of an easement limited to inconsistencies in our precedent. purposes road should be read to include

public hiking biking recreational

trails.”), liability for a is based on change in use of the easement from trail. use recreational Until change is fixed its occurrence

firm, right there is no accrual of the compensation taking.

recover for such

To the extent that Caldwell is construed otherwise, panel major-

to hold as does the

ity, warrants review. should We for purpose, gov-

sit en banc this

Case Details

Case Name: Barclay v. United States

Court Name: Court of Appeals for the Federal Circuit

Date Published: Apr 11, 2006

Citation: 443 F.3d 1368

Docket Number: 2005-1255

Court Abbreviation: Fed. Cir.