Memmer v. United States ( 2022 )

Case: 21-2133 Document: 54 Page: 1 Filed: 09/28/2022
United States Court of Appeals
for the Federal Circuit
______________________
JEFFREY MEMMER, GILBERT EFFINGER, LARRY
GOEBEL, SUSAN GOEBEL, OWEN HALPENY,
JOSEPH JENKINS, MICHAEL MARTIN, RITA
MARTIN, MCDONALD FAMILY FARMS OF
EVANSVILLE, INC., REIBEL FARMS, INC., JAMES
SCHMIDT, ROBIN SCHMIDT,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Cross-Appellant
______________________
2021-2133, 2021-2220
______________________
Appeals from the United States Court of Federal
Claims in No. 1:14-cv-00135-MMS, Senior Judge Margaret
M. Sweeney.
______________________
Decided: September 28, 2022
______________________
THOMAS SCOTT STEWART, Stewart Wald & McCulley,
LLC, Kansas City, MO, argued for plaintiffs-appellants.
Also represented by ELIZABETH MCCULLEY; STEVEN WALD,
St. Louis, MO.
DANIEL HALAINEN, Environment and Natural Re-
sources Division, United States Department of Justice,
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2 MEMMER v. US
Washington, DC, argued for defendant-cross-appellant.
Also represented by TODD KIM.
MARK F. HEARNE, II, True North Law Group, LLC, St.
Louis, MO, for amici curiae Cato Institute, James W. Ely,
Jr., National Association of Reversionary Property Own-
ers, Owners’ Counsel of America, Reason Foundation,
Southeastern Legal Foundation. Also represented by
STEPHEN S. DAVIS.
______________________
Before LOURIE, SCHALL, and REYNA, Circuit Judges.
SCHALL, Circuit Judge.
Jeffrey Memmer and the eleven other plaintiffs-appel-
lants in this case (collectively, “Appellants” or “landown-
ers”) own property in the state of Indiana. In February of
2014, they brought suit in the United States Court of Fed-
eral Claims, seeking compensation for an alleged taking
arising from the operation of § 8(d) of the National Trails
System Act Amendments of 1983 (“Trails Act”), 16 U.S.C.
§ 1247(d). 1 Appellants claimed that actions taken by the
government on April 8, 2011, had permanently taken their
property. According to Appellants, the taking arose out of
the abandonment by Indiana Southwestern Railway Com-
pany (“Indiana Southwestern”) of railway easements in In-
diana in which Appellants had reversionary interests.
Following a trial, the Court of Federal Claims found that
1 The original complaint was filed by Mr. Memmer
for himself and as representative of a class of similarly sit-
uated individuals. Complaint, Memmer v. United States,
No. 1:14-cv-00135-MMS (Fed. Cl. Feb. 18, 2014), ECF
No. 1. In January of 2015, Mr. Memmer, joined by the
other named Appellants, filed an amended complaint.
Amended Complaint, Memmer v. United States, No. 1:14-
cv-00135-MMS (Fed. Cl. Jan. 9, 2015), ECF No. 19.
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MEMMER v. US 3
the United States had taken Appellants’ property. The
court determined, however, that the taking lasted only
from May 23, 2011, to January 7, 2014. Memmer v. United
States, 150 Fed. Cl. 706, 761 (Nov. 2, 2020) (“Memmer I”).
Following the court’s decision, and after the parties stipu-
lated to compensation and interest, the court entered judg-
ment in favor of Appellants. Judgment, Memmer v. United
States, No. 1:14-cv-00135-MMS (Fed. Cl. June 7, 2021),
ECF No. 198, J.A. 77.
Appellants have appealed the ruling of the Court of
Federal Claims that the taking by the United States lasted
only from May 23, 2011, to January 7, 2014. For its part,
the government has cross-appealed. It contends that the
Court of Federal Claims erred in holding that Appellants’
property was taken. In the alternative, the government ar-
gues that, if there was a taking, it lasted only from May 23,
2011, to November 8, 2013.
For the reasons set forth below, we agree with the
Court of Federal Claims that Appellants’ property was
temporarily taken under the Trails Act. We agree with the
government, however, that the taking lasted only from
May 23, 2011, to November 8, 2013. Accordingly, we af-
firm-in-part and vacate-in-part. The case is remanded to
the Court of Federal Claims for a determination as to the
compensation and interest to which Appellants are entitled
as a result of the taking of their property having ended on
November 8, 2013, rather than on January 7, 2014.
BACKGROUND
I
A rail carrier that intends to abandon or discontinue a
rail line must either file an application with, or seek ex-
emption from, the Surface Transportation Board (“STB” or
“Board”). The STB has authority to regulate the construc-
tion, operation, and abandonment of most rail lines in the
United States. 49 U.S.C. §§ 10903, 10502; 49 C.F.R.
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4 MEMMER v. US
§§ 1152.20–1152.22, 1152.50; Caldwell v. United States,
391 F.3d 1226, 1228 (Fed. Cir. 2004). At the same time,
Congress has determined it beneficial to preserve estab-
lished railroad rights-of-way and to create recreational
trails. Accordingly, § 8(d) of the Trails Act, 16 U.S.C.
§ 1247(d), provides a mechanism for a rail carrier that in-
tends to abandon or discontinue a rail line to instead nego-
tiate an agreement with a locality or a private entity trail
sponsor to convert the railroad’s right-of-way into a recre-
ational trail. 2
If a rail carrier has sought an abandonment exemption
and agrees to negotiate an agreement with a trail sponsor,
the STB will issue a Notice of Interim Trail Use or Aban-
donment (“NITU”). The NITU provides for a negotiation
period during which the railroad can “discontinue service”
on the rail line and “salvage track and materials.”
49 C.F.R. § 1152.29(d)(1) (2012) (providing a negotiation
period of 180 days); Preseault v. Interstate Com. Comm’n,
494 U.S. 1, 7 & n.5 (1990) (discussing the 180-day negotia-
tion period following the issuance of a NITU by the Inter-
state Commerce Commission, the predecessor to the STB). 3
2 An alternate means of preventing the abandon-
ment of a rail line is through another party’s offer to subsi-
dize the rail line that is the subject of an abandonment
application. This is referred to as an Offer of Financial As-
sistance, or “OFA.” See 49 U.S.C. § 10904.
3 If a railroad that has applied for abandonment
without seeking an exemption agrees to negotiate a trail-
use agreement, the railroad may apply to the STB for a
Certificate of Interim Trail Use or Abandonment (“CITU”).
49 C.F.R. § 1152.29(c)(1) (2012). Section 1552.29 of Title
49 has changed and currently provides that a railroad may
fully abandon the line if no interim trail-use agreement is
reached within one year of the issuance of the NITU or
CITU. See 49 C.F.R. § 1552.29(c),(d) (2020).
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MEMMER v. US 5
After the negotiation period, if no agreement is reached,
the railroad may abandon the line and file a notice of con-
summation of abandonment with the Board. 49 C.F.R.
§ 1152.29(d)(1), (e)(2). If an agreement is reached, trail use
of the right-of-way is authorized and abandonment by the
railroad is blocked indefinitely, subject to restoration of the
right-of-way for railroad purposes. Castillo v. United
States, 952 F.3d 1311, 1315 (Fed. Cir. 2020); see also 16
U.S.C. § 1247(d). Because the right-of-way may be re-
stored for railroad purposes, the process contemplated by
the Trails Act is referred to as “railbanking.” See Caldwell,
391 F.3d at 1229.
Where the railroad held an easement to the underlying
property, the conversion of the right-of-way to a recrea-
tional trail, and thus the implementation of a new ease-
ment, can form the basis for a physical takings claim under
the Fifth Amendment to the Constitution. Preseault v.
United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en
banc) (“Presault II”). Such a taking occurs when “state law
reversionary property interests that would otherwise vest
in the adjacent landowners are blocked from so vesting.”
Caldwell, 391 F.3d at 1233. We have explained that the
taking begins upon the issuance of the NITU, “the only gov-
ernment action in the railbanking process that operates to
prevent abandonment of the corridor and to preclude the
vesting of state law reversionary interests in the right-of-
way.” Id. at 1233–34, 1236; see also Barclay v. United
States, 443 F.3d 1368, 1373 (Fed. Cir. 2006).
In Ladd v. United States, 630 F.3d 1015, 1023–24 (Fed.
Cir. 2010), we held that where no trail-use agreement is
reached, but the NITU compels the railroad to delay its
abandonment, the issuance of a NITU can effect a tempo-
rary physical taking. In Caquelin v. United States, 959
F.3d 1360 (Fed. Cir. 2020) (“Caquelin III”), we clarified and
explained whether the issuance of a NITU alone can trig-
ger a taking. The Caquelin III court clarified the legal
standard for ‘‘the timing of a NITU-based taking’’ and the
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6 MEMMER v. US
application of general causation principles under Caldwell,
Barclay, and Ladd. 959 F.3d at 1370–71. The court ex-
plained that, because a railroad’s easement would remain
in place absent abandonment by the railroad, there could
be no taking until the time as of which, had there been no
NITU, the railroad would have abandoned the rail line. See
id. at 1371–72. In other words, ‘‘a NITU does not effect a
taking if, even in the absence of a NITU, the railroad would
not have abandoned its line (a necessary prerequisite for
termination of the easement under state law) during the
period of the NITU.’’ Id. at 1363. ‘‘[I]n such a case, the
NITU takes nothing from the landowner that the land-
owner would have had in the absence of the NITU.’’ Id.
II
On October 25, 2010, Indiana Southwestern submitted
a notice of exemption from abandonment proceedings, stat-
ing that it would consummate abandonment of its rail lines
on or after January 15, 2011. Memmer I, 150 Fed. Cl. at
748; J.A. 253–54, 1253–57, 1358–61. In response, on No-
vember 12, 2010, the STB published a notice stating that,
absent third party intervention, the exemption would be
effective, and thus, Indiana Southwestern could abandon
the lines, on December 14, 2010. 4 75 Fed. Reg. 69,520 (Nov.
12, 2010). The STB’s notice indicated that the deadline for
railbanking requests and OFAs was November 22, 2010.
Id. Pursuant to 49 C.F.R. § 1152.29(e)(2), Indiana South-
western was given one year from the STB’s notice, until
November 12, 2011, to file a notice of consummation of
abandonment, if it chose to do so.
A few days after the STB’s notice was published, the
Indiana Trails Fund, Inc. (“Trails Fund”) submitted a re-
quest for the Board to issue a NITU for the rail corridor to
4 We hereafter sometimes refer to Indiana South-
western’s rail lines collectively as the “rail line” or “line.”
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MEMMER v. US 7
permit negotiations about railbanking if Indiana South-
western agreed. J.A. 254. The Board also received notice
from the Town of Poseyville, Indiana of its intent to file an
OFA.
On November 23, 2010, Indiana Southwestern advised
that it was “willing to negotiate interim trail use/rail bank-
ing with . . . the Indiana Trails Fund, Inc.” Suppl. App. 1. 5
The Town of Poseyville’s OFA, however, took priority over
the railbanking request, and there were several months of
proceedings over the town’s offer. Memmer I, 150 Fed. Cl.
at 733–34. Ultimately, the Poseyville offer fell through.
Thereafter, with the railroad’s consent, on April 8,
2011, the Board issued a NITU that became effective May
23, 2011. Id. at 734, 751; J.A. 254, 1362–69. The NITU
provided a 180-day period for the Trails Fund and Indiana
Southwestern to negotiate an interim trail-use agreement,
through November 19, 2011. J.A. 1368–69. The Trails
Fund obtained four extensions—all with the consent of In-
diana Southwestern—through November 8, 2013. Id. at
254–55, 1075, 1370–73. While the NITU was pending, In-
diana Southwestern executed a contract with A&K Mate-
rials, Inc. (“A&K”). Pursuant to that contract, A&K agreed
to purchase and remove the rails on the rail line except
those in rail crossings. Memmer I, 150 Fed. Cl. at 735, 748.
It also agreed to move the ties from the center of the rail
line. Id. A&K complied with the terms of the agreement
and completed its work by early February of 2012.
The NITU deadline lapsed, and the NITU therefore ex-
pired, without the Trails Fund and Indiana Southwestern
executing a trail-use agreement. Because the NITU exten-
sions had lasted more than one year, under 49 C.F.R.
5 Our citation to Suppl. App. refers to the Supple-
mental Appendix filed as an addendum to the United
States’ Opening Brief.
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8 MEMMER v. US
§ 1152.29(e)(2), Indiana Southwestern then had 60 days—
through January 7, 2014—to file a notice of consummation
of abandonment of the rail line. It chose not to do so, how-
ever. See J.A. 1077, 1214, 1229.
Eventually, Indiana Southwestern submitted a new
notice of exemption. In response, the STB published a no-
tice in July of 2021, shortly after this appeal was filed.
86 Fed. Reg. 37,782 (July 16, 2021). The STB’s notice
stated that, absent third party intervention by July 26,
2021, the exemption would be effective, and thus Indiana
Southwestern could abandon the line, on August 15, 2021.
No potential trail sponsors came forward, and no NITU is-
sued. Indiana Southwestern then filed a notice of consum-
mation with the Board on August 31, 2021, meaning that
the rail line was officially abandoned. As a result, Indiana
Southwestern’s easements terminated, and the landown-
ers’ fee simple interests became unencumbered by any
easements.
III
On January 9, 2015, the landowners filed their
amended complaint, asserting that the issuance of the
NITU on April 8, 2011, effected a permanent Fifth Amend-
ment taking of their property. The landowners alleged that
they each owned their property in fee simple; that Indiana
Southwestern owned an easement across each of their
properties; that their properties would no longer be bur-
dened by that easement if the easement was abandoned or
authorized for use beyond its scope; and that, but for the
issuance of the NITU, they would own their land unencum-
bered by any easements. Memmer I, 150 Fed. Cl. at
716–17.
The parties each moved for summary judgment on lia-
bility. Relevant to this appeal, the parties disputed
whether the issuance of the NITU effected a taking when a
trail-use agreement was not executed, the NITU expired on
its own terms, and Indiana Southwestern did not
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MEMMER v. US 9
consummate abandonment of its rail line during the period
of the NITU. Id. at 717.
In an Opinion and Order issued July 10, 2015, the
Court of Federal Claims held that the NITU effected a tem-
porary categorical taking that spanned from May 23, 2011,
the date the NITU went into effect, to November 8, 2013,
the date the NITU expired. 6 Id. The parties ultimately
reached a settlement on the amount due for the claims that
survived summary judgment, and each appealed different
facets of the court’s Opinion and Order to this court. Id. at
717–18.
While the case was on appeal, our court issued a pre-
decessor decision to Caquelin III, Caquelin v. United
States, 697 F. App’x 1016 (Fed. Cir. 2017) (“Caquelin I”).
In that case, the government argued for the application of
a multi-factor takings analysis pursuant to Penn Central
Transportation Co. v. City of New York, 438 U.S. 104, 124
(1978), and Arkansas Game & Fish Commission v. United
States, 568 U.S. 23, 38–40 (2012), instead of a categorical
takings analysis. Our court’s Caquelin I decision re-
manded for a decision by the Court of Federal Claims to
create in that case “a fully developed record applying the
multi-factor analysis the government urge[d].” Caquelin I,
697 F. App’x at 1020. The parties in this case then jointly
sought, and our court granted, a remand consistent with
the ruling in Caquelin I. Memmer I, 150 Fed. Cl. at 718.
Subsequently, the Court of Federal Claims issued its deci-
sion on remand in Caquelin, Caquelin v. United States,
140 Fed. Cl. 564 (“Caquelin II”), setting forth the Court of
6 A categorical taking occurs when a regulation
“compel[s a] property owner to suffer a physical invasion”
or “denies all economically beneficial or productive use” of
the property. Lucas v. S.C. Coastal Council, 505 U.S. 1003,
1015 (1992) (internal quotation marks omitted).
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10 MEMMER v. US
Federal Claims’ multi-factor analysis. Id. at 584. Our
court then issued Caquelin III, which reaffirmed that a
taking under the Trails Act is a categorical taking and clar-
ified the applicable causation standard, as discussed above.
959 F.3d at 1367–73. Caquelin III issued before the issu-
ance of the decision presently on appeal.
On remand in this case, the Court of Federal Claims
allowed additional discovery and conducted a trial on lia-
bility and damages. With the benefit of the issuance of our
Caquelin III decision before it, the court understood that it
needed to analyze “whether the Board’s issuance of the
NITU caused the injury alleged by [the landowners]—a
compelled continuation of Indiana Southwestern’s ease-
ments that prevented [the landowners] from acquiring fee
simple interests in the underlying land by operation of
state law.” Memmer I, 150 Fed. Cl. at 747. Before the
Court of Federal Claims, the government argued that the
landowners suffered no injury because they were in the
same position they were in before Indiana Southwestern
filed its notice of exemption. Id. The landowners con-
tended that they were injured by the Board’s issuance of
the NITU—at least while the NITU was in effect—because
a NITU automatically causes a taking under binding prec-
edent. Id. at 747–48.
In its decision, the Court of Federal Claims determined
that the landowners had established that Indiana South-
western would have abandoned the rail lines in the absence
of the NITU. Id. at 748. The court relied on the fact that
Indiana Southwestern initiated the process for abandon-
ment by filing a notice of exemption in which it represented
that it had no local traffic move over its lines for at least
the preceding two years and averred that it would consum-
mate the abandonment of the lines “on or after January 15,
2011.” Id. (quoting J.A. 1254). The court also relied on the
fact that, during the pendency of the NITU, Indiana South-
western engaged A&K to remove the rails on the line. Id.
In addition, the court noted, counsel for Indiana
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MEMMER v. US 11
Southwestern testified that, even after the NITU expired,
it was Indiana Southwestern’s intent to either finalize the
abandonment or execute a trail-use agreement. Id. at 748;
see J.A. 1196–98, 1228–29. The court concluded:
These facts reflect that Indiana Southwestern had
every intent to abandon the railroad lines during
the period of time that the NITU was in effect, and
was prevented from doing so by the existence of the
NITU. Further, the only evidence possibly suggest-
ing that Indiana Southwestern might not have
abandoned the lines between May 23, 2011, and
November 8, 2013, is the fact that it did not file a
notice of consummation within the sixty-day period
following the expiration of the NITU, as legally re-
quired. However, what Indiana Southwestern
chose to do (or not do) after the NITU expired is not
particularly suggestive of what Indiana Southwest-
ern was planning to do while the NITU was in place
because such action (or inaction) might have been
prompted by information learned or circumstances
that arose after the NITU expired. And even if it
was suggestive, it is outweighed by the evidence
demonstrating Indiana Southwestern’s intent to
abandon the lines. Accordingly, the Board’s issu-
ance of the NITU injured plaintiffs by compelling
the continuation of Indiana Southwestern’s ease-
ments––despite Indiana Southwestern’s expressed
intent to abandon the lines––and preventing them
from acquiring fee simple interests in the underly-
ing land.
Memmer I, 150 Fed. Cl. at 748 (footnote omitted) (citing
Caquelin III, 959 F.3d at 1370–71 (focusing on whether the
railroad company would have abandoned its line ‘‘during
the NITU’’ period)). The court noted that evidence indicat-
ing that the railroad continued to negotiate a trail-use
agreement with the Trails Fund after the NITU expired
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12 MEMMER v. US
was irrelevant to whether it would have abandoned the rail
lines during the pendency of the NITU. Id. at 748 n.41.
The Court of Federal Claims then examined the scope
and duration of the taking. Id. at 750–52. The court re-
jected the landowners’ argument that the taking was per-
manent. Instead, the court determined, the taking was
temporary, lasting from the date the NITU became effec-
tive—May 23, 2011—through the deadline under 49 C.F.R.
§ 1152.29(e)(2) for Indiana Southwestern to file its notice
of consummation of abandonment—January 7, 2014. Id.at 751–52.
Following its decision, the court denied the landowners’
motion for reconsideration. Memmer v. United States, 153
Fed. Cl. 707 (May 20, 2021). After the parties then stipu-
lated to damages and interest, the court entered final judg-
ment on June 7, 2021. J.A. 77. Appellants timely appealed
and the government timely cross-appealed. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I
“We review the Court of Federal Claims’ legal conclu-
sions de novo and its factual findings for clear error.”
Caquelin III, 959 F.3d at 1366 (citing Love Terminal Part-
ners, L.P. v. United States, 889 F.3d 1331, 1340 (Fed. Cir.
2018)). “Whether a taking has occurred is a question of law
based on factual underpinnings.” Id. (citing Wyatt v.
United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)). Cau-
sation is a question of fact we review for clear error. Hen-
dler v. United States, 175 F.3d 1374, 1378 (Fed. Cir. 1999).
II
We turn first to the government’s cross-appeal, which
challenges the Court of Federal Claims’ conclusion that the
issuance of the NITU in this case effected a taking. Accord-
ing to the government, “there is no change to the
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MEMMER v. US 13
landowners’ property interests,” and therefore no taking,
“when a railroad requests abandonment authority from the
Board and then [the railroad] chooses not to exercise that
authority,” as Indiana Southwestern did in this case.
United States Opening Br. 33.
The government urges that our cases have found a tak-
ing to have occurred only where the NITU either (a) re-
sulted in a trail-use agreement; or (b) compelled a delay in
the railroad’s abandonment of its line. Id. at 20–26, 30–36.
“[W]hen a NITU expires with no change in the use of the
rail corridor or in federal jurisdiction over the rail line,” the
government contends, it “cannot be said to have caused a
change in the nature or effect of any easement.” Id. at 33.
The government also urges that in a situation “when the
railroad does not abandon the line and easements do not
terminate after the NITU period, no government action . . .
can be said to have caused a delay,” and therefore no tem-
porary taking has occurred, because “[t]he government
cannot delay something that does not happen.” Id. at 34.
Relatedly, the government contends that the Court of
Federal Claims erred when it held that the Caquelin III
causation standard was met, i.e., that Indiana Southwest-
ern would have abandoned the rail line if the NITU had not
issued. Id. at 36–42. The government points to Indiana
Southwestern’s decisions to participate in negotiations
with a potential trail sponsor and to extend the NITU and
argues that these actions show the railroad’s interest in
pursuing a rail-trail as opposed to an interest in abandon-
ing the rail corridor. Id. at 37–39. The government also
points to Indiana Southwestern’s decision not to consum-
mate abandonment after the NITU expired, urging that it
“should weigh heavily against the conclusion that the
NITU caused a physical taking solely by preventing the
railroad from abandoning the line during its pendency.” Id.
at 39. The government posits that, in this case, Indiana
Southwestern “simply exercised its discretion—as it
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14 MEMMER v. US
always may—to not finish the regulatory process that it be-
gan.” Id. at 20.
Appellants respond that “the evidence of causation in
this case is substantial, overwhelming, and unrefuted and
far exceeds the nature of the evidence that established cau-
sation in [Caquelin III].” Appellants’ Resp. & Reply Br. 3;
see also id. at 2–3, 4–9. Appellants argue that, in Caquelin
III, our court considered, and found sufficient to determine
that Ms. Caquelin had met her burden on the causation is-
sue, evidence of the railroad’s actions before the NITU (“the
railroad filed an application to abandon, indicating an af-
firmative intent to abandon”); evidence of its actions during
the NITU (the railroad “refused [to consent to an extension
of the NITU], confirming an interest in abandoning sooner
rather than later” and removed track during the NITU);
and evidence of its actions after the NITU (the railroad
“completed the abandonment just three months after . . .
the date . . . it became legally authorized to abandon the
line”)). Id. at 11–12 (citing Caquelin III, 959 F.3d at 1372–
73). Appellants also point out that the Caquelin III court
considered that the railroad in that case fulfilled the stand-
ard of abandonment under state law. Id. at 12.
The evidence of causation in this case that Appellants
point to is evidence that Indiana Southwestern intended to
consummate abandonment when it submitted its notice of
exemption before the NITU issued, evidence that the rail-
road removed the rails and ties during the pendency of the
NITU (which, Appellants argue, established abandonment
under Indiana state law), and evidence that the railroad
still intended to either consummate abandonment or enter
into a trail-use agreement when the NITU expired, and ul-
timately did formally consummate abandonment under
federal law in 2021. Id. at 12–15 (citing J.A. 1216, 1221,
1228–29).
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MEMMER v. US 15
III
To begin, we disagree with the government that a phys-
ical taking cannot occur when a NITU ends without either
a trail-use agreement or the consummation of the rail-
road’s abandonment. As we stated in Caquelin III:
The NITU in this case, as in similar cases, was a
government action that compelled continuation of
an easement for a time; it did so intentionally and
with specific identification of the land at issue; and
it did so solely for the purpose of seeking to ar-
range, without the landowner’s consent, to con-
tinue the easement for still longer, indeed
indefinitely, by an actual trail conversion.
Caquelin III, 959 F.3d at 1367. Thus, once initiated, a
NITU can effect a “mandated continuation” of an easement
by the STB that “provid[es] a right of occupation by some-
one other than the landowner and . . . bar[s] the landowner
from using the ground burdened by the easement.” Id.; see
also Ladd, 630 F.3d at 1025; Caldwell, 391 F.3d at 1234,
1236. This “mandated” or “compelled” continuation of an
easement can occur regardless of whether the NITU ulti-
mately leads to a trail-use agreement or the railroad’s
abandonment is ultimately consummated. That said, as
we explained in Caquelin III, in order to determine if a
NITU has effected a taking, we must consider whether the
railroad would have abandoned the line, i.e., relinquished
its rights to the rail right-of-way, during the period of the
NITU had there been no NITU. 959 F.3d at 1372. That
brings us to the matter of causation in this case. In that
regard, we are not persuaded by the government’s argu-
ment that the Court of Federal Claims erred in its causa-
tion analysis.
Significantly, the government does not argue that the
court’s findings of fact on causation are clearly erroneous.
Oral Argument, 15:25–16:18 (June 6, 2022),
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=
Case: 21-2133 Document: 54 Page: 16 Filed: 09/28/2022
16 MEMMER v. US
21-2133_06062022.mp3. What this means is that, in order
for us to reverse the Court of Federal Claims on causation,
we would have to conclude that the facts found by the court
are insufficient support for the finding that “Indiana
Southwestern had every intent to abandon the railroad
lines during the period of time that the NITU was in effect,
and was prevented from doing so by the existence of the
NITU.” Memmer I, 150 Fed. Cl. at 748; see Caquelin III,
959 F.3d at 1372–73 (rejecting the government’s argument
that the evidence was insufficient to support a finding of
causation where there was no evidence indicating the rail-
road would have delayed abandonment had there been no
NITU). We are unable to reach that conclusion, however.
Since it does not challenge the Court of Federal Claims’
findings of fact, the government relies heavily on evidence
that Indiana Southwestern was interested in entering into
a trail-use agreement as showing that the railroad did not
intend to abandon the rail line during the NITU period. We
fail to see, though, how this evidence helps the government
when, had a trail-use agreement been reached during the
NITU, a taking of Appellants’ property would have oc-
curred. See Presault II, 100 F.3d at 1550 (holding that the
conversion of a rail line to a public trail was a taking of a
new easement for which the landowners were entitled to
compensation). Moreover, the government does not point
to any evidence indicating that Indiana Southwestern had
changed its mind and wished to continue operating the rail
line during the NITU period. We therefore cannot say that
the Court of Federal Claims erred in finding the evidence
that Indiana Southwestern would have relinquished its
rights to its right-of-way during the NITU period out-
weighed the evidence to the contrary.
IV
We turn next to the issue of when the temporary taking
ended. Appellants urge us to hold that the taking lasted
until Indiana Southwestern consummated its
Case: 21-2133 Document: 54 Page: 17 Filed: 09/28/2022
MEMMER v. US 17
abandonment on August 31, 2021. Appellants’ Br. 2, 5, 38–
41, 44–52. This is so, Appellants contend, because the re-
quirements for abandonment under Indiana law were sat-
isfied upon the railroad’s removal of the rails, yet
Appellants’ reversionary rights were still blocked until the
railroad filed a notice of consummation of abandonment as
required by 49 C.F.R. § 1152.29(e)(2). Id. at 41; Appellants’
Resp. & Reply Br. 24–26.
For its part, the government contends that, if we agree
with the Court of Federal Claims that a taking occurred,
we nevertheless should hold that the court erred when it
held that the taking ended on January 7, 2014, the conclu-
sion of the 60-day period following expiration of the NITU.
It was during that period that Indiana Southwestern could
have filed a notice of consummation of abandonment had it
chosen to do so. Instead, the government argues, the tak-
ing ended when the NITU expired on November 8, 2013,
because after that date, the decision to fully abandon the
rail line, and thus the continuation or non-continuation of
the easement, was solely in the control of Indiana South-
western. The government responds to Appellants’ argu-
ments regarding Indiana law by pointing out that the STB
has exclusive and plenary jurisdiction over the abandon-
ment of rail lines, and that abandonment under state law
is preempted by federal law. United States Opening Br.
55–57; United States Resp. & Reply Br. 15–16; see also Ap-
pellants’ Resp. & Reply Br. 20.
V
We agree with the government that the taking ended
upon expiration of the NITU on November 8, 2013. This is
so because it was on that date that the United States was
no longer responsible for mandating the continuation of the
easement because, from that point forward, the decision
rested solely in the hands of Indiana Southwestern. Nav-
ajo Nation v. United States, 631 F.3d 1268, 1274 (Fed. Cir.
Case: 21-2133 Document: 54 Page: 18 Filed: 09/28/2022
18 MEMMER v. US
2011) (“A takings claim must be predicated on actions un-
dertaken by the United States . . . .”).
For the same reason, we reject Appellants’ argument
that the taking lasted until August 31, 2021, when Indiana
Southwestern finally filed its notice of consummation of
abandonment pursuant to 49 C.F.R. § 1152.29(e)(2). Ap-
pellants claim that § 1152.29(e)(2) effected a taking be-
cause it allowed the railroad to fail to consummate
abandonment after state law abandonment had already oc-
curred. In other words, Appellants argue that, because
§ 1152.29(e)(2) requires the filing of a notice of consumma-
tion of abandonment, but does not mandate the filing of
that notice as of the date state law abandonment require-
ments are met, the regulation had the effect in this case of
extending Indiana Southwestern’s easements and there-
fore the taking of Appellants’ property, for an additional
period. 7 We reject this argument. As Appellants
acknowledge, “it is always the railroad’s choice that ulti-
mately impacts the duration of the taking.” Appellants’
Resp. & Reply Br. 26. Moreover, acceptance of Appellants’
7 Paragraph (e)(2) of 49 C.F.R. § 1152.29 states that
a railroad that has received authority from the STB to
abandon a rail line “shall file a notice of consummation
with the Board to signify that it has exercised the authority
granted and fully abandoned the line (e.g., discontinued op-
erations, salvaged the track, canceled tariffs, and intends
that the property be removed from the interstate rail net-
work).” 49 C.F.R. § 1152.29(e)(2). The regulation provides
that, “assuming that the railroad intends to consummate
the abandonment,” the notice of consummation must be
filed within one year of the service date of the decision per-
mitting the abandonment unless at the conclusion of the
one-year period a legal or regulatory barrier exists, in
which case the notice of consummation must be filed no
later than 60 days after the barrier is removed. Id.Case: 21-2133 Document: 54 Page: 19 Filed: 09/28/2022
MEMMER v. US 19
argument would effectively contradict the STB’s plenary
authority to regulate abandonment, which Congress
granted over a hundred years ago in the Transportation
Act of 1920, Pub. L. No. 66-162, 41 Stat. 456, 477–78 (“[N]o
carrier by railroad subject to this Act shall abandon all or
any portion of a line of railroad, or the operation thereof,
unless and until there shall first have been obtained from
the Commission a certificate that the present or future
public convenience and necessity permit of such abandon-
ment.”).
CONCLUSION
For the foregoing reasons, we hold that the Court of
Federal Claims did not err in finding that Appellants suf-
fered a temporary taking of their property. We hold that
the court did err, however, in finding that the taking lasted
until January 7, 2014. As explained, it lasted only until
November 8, 2013. We therefore affirm the Court of Fed-
eral Claims’ determination on liability, but we vacate its
ultimate judgment as to compensation and interest. We
remand the case to the court for a determination of the
compensation and interest to which Appellants are entitled
as a result of the taking of their property having ended on
November 8, 2013, rather than on January 7, 2014.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
Costs
No costs.