BIERY v. USA

Filing 104

ORDER granting 23 Motion for Partial Summary Judgment; denying 31 Cross-Motion for Summary Judgment. Joint Status Report due by 7/11/2011 Signed by Judge Nancy B. Firestone. (ek) Copy to parties.

In the United States Court of Federal Claims
No. 07-693L and No. 07-675L
CONSOLIDATED
(Filed: June 9, 2011)

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DOROTHY L. BIERY, et al.,

and
JERRAMY and ERIN

PANKRATZ, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
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Fifth Amendment Takings Clause;
Rails-to-Trails; National Trails System
Act Amendments of 1983, 16 U.S.C. §
1247(d); Kansas Law; Scope of
Railroad Easements; Railroad
Easement Abandonment

Mark Fernlund Hearne, II, Clayton, MO, with whom were Meghan S. Largent
and Lindsay S.C. Brinton, Clayton, MO, and Debra Albin-Riley, Los Angeles, CA, for
plaintiffs.
Kristine Sears Tardiff, U.S. Department of Justice, Concord, NH, with whom
were Ignacia S. Moreno, Assistant Attorney General, and Ayako Sato, Washington, D.C.,
for defendant.
OPINION
FIRESTONE, Judge.
The plaintiffs in these consolidated cases are fourteen Kansas landowners who
claim to own the fee interests in land underlying two previously-operating sections of a

railroad line.1 The plaintiffs claim that the defendant (“government”) effected a taking of
the plaintiffs’ fee interest in the railroad corridor when the government approved the
conversion of the subject railroad line to a recreational trail pursuant to the “railbanking”
provision of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d)
(“Trails Act”). The plaintiffs, whose fee interest was encumbered by the railroad rightof-way, claim that, but for the Trails Act, the railroad easements held by the Burlington
Northern Santa Fe Railway (“BNSF”) over their fee land would have expired now that the
easement is no longer being used for train travel. They argue that the government’s
authorization of a recreational trail within the railroad corridor and continued control over
the corridor for potential future rail activation has prevented reversion of the easements to
the plaintiffs. The plaintiffs are now seeking just compensation pursuant to the Takings
Clause of the Fifth Amendment to the United States Constitution for the alleged taking
associated with the government’s authorization of railbanking and trail use under the
Trails Act.
Pending before the court are the parties’ cross-motions for summary judgment as
1

The court granted the defendant’s unopposed motion to consolidate the cases on May 9,
2008. Order Consolidating Cases, May 9, 2008, ECF No. 29. Biery v. United States, 07-693L, is
the lead case, and all relevant citations in this opinion are to pleadings and orders in that case
unless otherwise indicated. See id.
The plaintiffs at one time numbered eighteen between the two cases, but the court
dismissed the claims of four of the Biery plaintiffs, having found that those plaintiffs had no
property right or interest upon which to base their takings claims in this action. Order on the
Nature of the Property Interests Acquired by the Railroads, Aug. 20, 2009, ECF No. 74. The
plaintiffs sought to appeal this order, but the appeal was dismissed as premature because this
court had not yet entered a final judgment. Biery v. United States, 2009-5134 (Fed. Cir. Dec. 18,
2009).
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to whether there has been a taking of their property interests by virtue of the
government’s authorization of railbanking pursuant to the Trails Act. Resolution of these
motions requires the court to opine on the scope of the railroad easements under Kansas
law.2 For the reasons set forth below, the plaintiffs’ motions for summary judgment are

2

The parties filed their cross-motions for summary judgment on April 30 and June 2,
2008, respectively. After holding oral argument on the motions on December 18, 2008, the
court, having “determined . . . that resolution of the liability issues in this case turns in large part
on questions of Kansas state law as to which it appears to this court that there is no controlling
precedent in the decisions of the Kansas Supreme Court and the Kansas Court of Appeals,”
certified three questions of state law to the Kansas Supreme Court. Certification Order, Feb. 27,
2009, ECF No. 68. The parties submitted briefs to the Kansas Supreme Court, which held oral
argument on the certified questions on October 30, 2009. On September 23, 2010, the Kansas
Supreme Court issued an order dismissing the case, noting that the Kansas statute regarding
certification of state law questions, Kan. Stat. Ann. § 60-3201, does not specifically mention the
Court of Federal Claims as a court from which the Kansas Supreme Court may answer certified
questions of law. Pls.’ Notice of Decision by Kan. Sup. Ct., Ex. A, ECF No. 77 (Sept. 27, 2010).
This court ordered the parties to submit copies of all briefs filed and the transcript of the oral
argument before the Kansas Supreme Court. The parties were also permitted to submit
supplemental briefs.
Thus, the court now has before it the following submissions in Biery: Pls.’ Mot. Summ.
J., April 30, 2008, ECF No. 23, 25; Def.’s Cross-Mot. Summ. J. & Resp. to Pls.’ Mot. Summ. J,
June 2, 2008, ECF No. 31; Pls.’ Resp. to Def.’s Cross-Mot. Summ. J. & Reply in Supp. of Mot.
Summ. J., Aug. 7, 2008, ECF No. 47; Def.’s Reply in Supp. of Cross-Mot. Summ. J., Aug. 21,
2008, ECF No. 51; Joint Statement of Facts & J.A., ECF No. 66; Pls.’ Notice of Filings in Kan.
Sup. Ct., Oct. 7, 2010, ECF No. 82 (includes Pls.’ Opening Br., App. A; Pls.’ Reply Br., App. B;
Pls.’ Letter Re. Moody v. Allegheny Valley Land Trust, 976 A.2d 484 (Pa. 2009), App. D; Pls.’
Letter Re. Bittner v. Watco Cos., 226 P.3d 563 (Kan. App. 2010), App. E; Unofficial Tr. Kan.
Sup. Ct. Oral Arg., App. F); Def.’s Notice of Filings in Kan. Sup. Ct., Oct. 12, 2010, ECF No. 83
(includes Def.’s Br., Ex. 1; Def.’s Letter Re. Moody, 976 A.2d 484, Ex. 2; Def.’s Resp. to Amici
Brs., Ex. 3; Def.’s Letter Re. Troha v. United States, 692 F. Supp. 2d 550 (W.D. Pa. Feb. 25,
2010), Ex. 4); Pls.’ Supp’l Br., Nov. 8, 2010, ECF No. 89; Pls.’ Notice of Supp’l Auth. Re. Ladd
v. United States, 630 F.3d 1015 (Fed. Cir. 2010), Dec. 14, 2010, ECF No. 90; Def.’s Supp’l Br.,
Dec. 20, 2010, ECF No. 91; Pls.’ Reply in Supp. of Supp’l Br., Dec. 30, 2010, ECF No. 92; Pls.’
Notice of Supp’l Auth. Re. Navajo Nation v. United States, 631 F.3d 1268 (Fed. Cir. 2011), Feb.
4, 2011, ECF No. 93; Def.’s Resp. to Pls.’ Notice of Supp’l Auth. Re. Navajo, Feb. 15, 2011,
ECF No. 94; Pls.’ Reply in Supp. of Notice of Supp’l Auth. Re. Navajo, Feb. 21, 2011, ECF No.
96; Pls.’ Notice of Supp’l Auth. Re. Nordhus v. United States, No. 09-042L, 2011 WL 1467940
(Fed. Cl. Apr. 12, 2011), Apr. 18, 2011, ECF No. 99; Pls.’ Notice of Supp’l Auth. Re. Capreal,
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GRANTED and the defendant’s cross-motions for summary judgment are DENIED.
I.

BACKGROUND
A.

The Trails Act

In this court’s recent decision in Macy Elevator, Inc. v. United States, No. 09515L, 2011 WL 1319026 (Fed. Cl. Apr. 7, 2011), the court summarized the general
purposes and operation of the Trails Act as follows:
Congress enacted the Trails Act to address the national problem of a reduction
in rail tracks. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5 (1990)
(“Preseault I”). The Trails Act authorizes the Surface Transportation Board
(“STB”)3 to preserve railroad corridors or rights-of-way not currently in use
for train service for possible future rail use by converting those rights-of-way
into recreational trails. Id. at 5-6; 16 U.S.C. § 1241 (2006). In essence, the
Trails Act allows a railroad to relinquish responsibility for a rail line by
transferring the corridor to an entity that will use it as a recreational trail.
Although the corridor is not used as a railroad during the period of interim trail
use, it remains intact for potential future use for rail service. This process is
called “railbanking.”
Macy Elevator, 2011 WL 1319026 at *1 (renumbered footnote in original). The court
then explained that STB approval of railbanking and recreational trail use are authorized

Inc. v. United States, No. 09-186L, 2011 WL 1740543 (Fed. Cl. May 6, 2011), May 9, 2011,
ECF No. 100; and Def.’s Notice of Supp’l Auth. Re. Enbridge Pipelines (Illinois) L.L.C. v.
Moore, 633 F.3d 602 (7th Cir. 2011), May 18, 2011, ECF No. 103. Also before the court is the
plaintiffs’ Motion for Partial Summary Judgment filed in Pankratz, filed April 14, 2008, prior to
consolidation.
Although all of these relevant briefs are in the record and before the court, the court has
focused primarily on the parties’ briefs submitted to the Kansas Supreme Court and the parties’
subsequent supplemental briefs filed in this court.
3

The Transportation Act of 1920, 41 Stat. 477-78, initially gave the Interstate Commerce
Commission (“ICC”) authority over railroad abandonments; this authority is now held by the
STB following enactment of the ICC Termination Act of 1995, 49 U.S.C. § 10501 (1996).
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in connection with the STB’s abandonment approval authority. In particular, the court
explained that in cases where a railroad and a trail provider reach an agreement over
recreational trail use of the rail line, the STB will retain jurisdiction over the rail corridor
and the corridor will be railbanked for possible future rail use. In such cases, the rail
corridor will not be returned to the underlying fee owner:
Before a railroad corridor may be converted into a recreational trail, the
railroad must either initiate abandonment proceedings with STB under 49
U.S.C. § 10903 (2006) (where the railroad has recently had operating train
service) or seek an exemption from the ordinary abandonment procedures
under 49 U.S.C. § 10502 (2006) (where the railroad has had no local rail
service for at least two years).4 Caldwell v. United States, 57 Fed. Cl. 193, 195
(2003) (“Caldwell I”), aff’d, 391 F.3d 1226 (Fed. Cir. 2004) (“Caldwell II”).
Under either procedure, abandonment of the rail line and right-of-way will not
be approved by the STB if a qualified trail provider5 submits to the STB a
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STB’s regulations provide:

An abandonment or discontinuance of service or trackage rights is exempt if the
carrier certifies that no local traffic has moved over the line for at least 2 years and
any overhead traffic on the line can be rerouted over other lines and that no formal
complaint filed by a user of rail service on the line (or a state or local government
entity acting on behalf of such user) regarding cessation of service over the line either
is pending with the Board or any U.S. District Court or has been decided in favor of
the complainant within the 2-year period. The complaint must allege (if pending),
or prove (if decided) that the carrier has imposed an illegal embargo or other
unlawful impediment to service.
49 C.F.R. § 1152.50(b) (2010). The STB must also find that the line is not necessary to carry out
the government’s rail transportation policy, the line is of limited scope, and continued regulation
is unnecessary to protect shippers from abuse of market power. Id. § 1152.50(c).
The railbanking process works in largely the same manner, whether the proceeding is
exempt from the abandonment process or non-exempt.
5

The statute defines “qualified trail provider” as a “state, political subdivision, or
qualified private organization that is prepared to assume full responsibility for management of
[railroad] rights-of-way and for any legal liability arising out of such transfer or such use, and for
the payment of any and all taxes that may be levied or assessed against the [railroad] rights-of-5-

request to use the right-of-way as a recreational trail. If the trail provider
submits a statement of willingness to assume financial and legal responsibility
to the STB and the railroad, the STB will, in the case of an operating railroad
issue a Certificate of Interim Trail Use or Abandonment (“CITU”) which
preserves the STB’s jurisdiction over the rail corridor while the parties
negotiate an Interim Trail Use Agreement. See 49 C.F.R. § 1152.29(c) (2010).
In cases involving the exemption procedure, such as the present case, the STB
issues a Notice of Interim Trail Use or Abandonment (“NITU”), which also
preserves the STB’s jurisdiction over the rail corridor, allows the railroad to
discontinue operations and remove track and equipment, and affords the
railroad and the trail provider 180 days to negotiate a railbanking and interim
Trails Act Agreement. Caldwell II, 391 F.3d at 1229-30; Caldwell I, 57 Fed.
Cl. at 195; 49 C.F.R. § 1152.29(d). During this period, the railroad will also
negotiate an agreement for the transfer of the corridor to the trail operator.
[footnote omitted] “If an agreement is reached, the NITU [or CITU]
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.” Caldwell I, 57 Fed. Cl. at 195 (internal citations
omitted); see also 49 C.F.R. § 1152.29(d)(2). If an agreement is not reached,
the railroad will be allowed to abandon the line, at which time the STB’s
jurisdiction over the right-of-way terminates.6
Id. (renumbered footnotes in original). If there is no agreement between the railroad and
trail operator, the railroad may abandon the line and the STB will no longer have
jurisdiction over the rail corridor.

way.” 16 U.S.C. § 1247(d).
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As explained above, issuance of a CITU or a NITU is an alternative to the standard
process of approving the railroad’s application for abandonment. Where the STB issues an order
authorizing the railroad to abandon the line and the railroad carries out the abandonment, the
STB’s jurisdiction over the railroad right-of-way terminates. Hayfield N. R.R. Co. v. Chicago &
N.W. Transp. Co., 467 U.S. 622, 633-34 (1984); Preseault I, 494 U.S. at 7; 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)).
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B.

Pankratz–Butler County, Kansas7
1.

Railroad Corridor Acquisition

The property at issue in Pankratz v. United States, No. 07-675L, is a 10.6-milelong, 100-foot-wide strip of railroad corridor lying between milepost 483.62 in Augusta,
Kansas and milepost 494.22 near Andover, Kansas. The corridor was initially acquired
largely through condemnation in 1879 by the St. Louis, Wichita & Western Railway
Company8 pursuant to a charter granted that same year and Kansas statutes.9 For one
segment of this corridor, the railroad acquired its rights via voluntary conveyance from
William and Anna Chase. The Chase deed provides that the grantors convey “a strip of
land one hundred feet wide . . . for the purpose of constructing and operating said
Railway. . . . Should Railway Company fail or cease to use said land for said purpose or
fail to establish the Station and build a depot on [illegible] this grant and said title shall
revert back to the undersigned grantors, their heirs or assigns.” J.A. A-2, ECF No. 66-1.
The parties agree that under Kansas law in effect at the time, the railroad acquired an
easement, rather than a fee interest, through its condemnation and the voluntary grant.
2.

STB Proceedings and Railbanking

In the mid to late 1990s, BNSF ceased using the right-of-way for active rail
7

The following facts are not in dispute unless otherwise noted.

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BNSF is the successor in interest to this railroad company.

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The charter further provided that the corporation was also formed for the purpose of
constructing, maintaining, and operating a magnetic telegraph in connection therewith. Pls.’
Mot. to Supp. R., Ex. A, ECF No. 69-1.
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service. In January 2002, Butler County acquired the right-of-way from BNSF by a
quitclaim deed as part of its desire to restore active rail service. The STB, pursuant to its
plenary jurisdiction over such acquisitions, approved the transfer of the right-of-way and
trackage. Contrary to its plans, Butler County was unable to locate a railroad operator to
restore service on the rail line. On June 15, 2004, Butler County filed a Notice of
Exemption with the STB, seeking authority to abandon the line. On July 2, 2004, the
STB granted the exemption–effective August 4, 2004–giving the railroad authority to
consummate abandonment by removing tracks and equipment. The STB’s Environmental
Report, which accompanied the Abandonment Exemption, noted, “The Line is stub-ended
and, therefore, not capable of handling overhead traffic. The Line has had no traffic in
recent years. In addition, no maintenance has been performed on this dormant Line for
some time.” J.A. B-4, ECF No. 66-2. The STB’s historic report noted, “By the mid1990’s, all operations on the Line had ceased. The Line is in poor condition and has not
seen any traffic in recent years. In order to restart freight operations, significant
rehabilitation would be required.” J.A. B-5, ECF No. 66-3.
On July 28, 2004, Prairie Travelers, Inc. late-filed an expression of interest in
negotiating a trail use agreement with Butler County pursuant to the Trails Act. Butler
County had not yet consummated abandonment of the line by removing the tracks and
equipment and agreed to negotiate an agreement. Accordingly, on September 14, 2004,
the STB issued a NITU, providing a 180-day period during which the parties could

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negotiate an agreement and the County could remove tracks. Butler County and Prairie
Travelers were unable to negotiate an agreement, and the NITU expired by its terms on
March 13, 2005. At that time, Butler County was authorized to exercise its authority to
abandon the line, but it did not take steps to do so.
On May 2, 2005, Butler County Economic Development (“BCED”), an agency of
the County government, requested a second NITU from the STB. The STB granted that
request and issued a NITU on June 2, 2005. On June 3, 2005, Butler County notified the
STB that a trail use agreement had been reached with the Economic Development agency.
On November 5, 2009, the STB vacated the NITU issued to BCED and issued a new
NITU with the City of Augusta, Kansas replacing BCED as the trail manager.
C.

Biery–Reno County, Kansas 10
1.

Railroad Corridor Acquisition

The property at issue in Biery v. United States, No. 07-693L, is a 2.8-mile-long,
100-foot-wide strip of railroad corridor adjacent to South Hutchinson between milepost
0.62 and milepost 3.50 in Reno County, Kansas. The corridor was initially acquired
through two condemnation proceedings between 1889 and 1899 by the Hutchinson,
Oklahoma & Gulf Railway Company and its successor in interest, the Hutchinson &
Southern Railway Company.11 The parties agree that under Kansas law in effect at the

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The following facts are not in dispute unless otherwise noted.

11

Hutchinson & Southern became part of BNSF in 1995. The charter for the Oswego and
State Line Railroad company says that the corporation was for the purpose of constructing and
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time, the railroad acquired an easement, rather than a fee interest, through its
condemnation proceedings.
2.

STB Proceedings and Railbanking

On February 20, 2004, BNSF filed a Notice of Exemption with the STB, seeking
authority to abandon the line. Shortly thereafter, the City of South Hutchinson sent a
letter to the STB expressing interest in negotiating a trail use agreement for the corridor.
The STB granted the abandonment exemption on March 11, 2004, effective April 10,
2004; the STB’s Environmental Assessment stated that “there is now no demand for or
prospect of rail service over the line, and no traffic has originated, terminated, or moved
overhead on this line segment for two years.” J.A. E-7, ECF No. 66-8. BNSF then
indicated that it was willing to enter into a trail use agreement, and on April 8, 2004, the
STB issued a NITU, providing a 180-day period during which BNSF and the City could
negotiate. The STB extended the negotiation period until April 5, 2005. On March 23,
2005, BNSF and the City of South Hutchinson entered into a railbanking and interim trail
use agreement pursuant to which BNSF transferred to the City on February 17, 2006 a
quitclaim deed of its interest in the railroad corridor.

maintaining a “railroad” for “public use.” Pls.’ Mot. to Supp. R., Ex. B, ECF No. 69-1. The
charter for the Hutchinson Oklahoma & Gulf Railroad likewise states that it is also authorized to
operate a “telegraph” line and other lines of “railroad and telegraph in connection therewith.” Id.

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II.

DISCUSSION
A.

Standard of Review

Pursuant to Rule 56 of the Rules of the United States Court of Federal Claims
(“RCFC”), summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” RCFC
56(c)(1); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Casitas
Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008); Telemac
Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed. Cir. 2001) (citation
omitted). In considering a motion for summary judgment, the court’s role is not to
“weigh the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. “The evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Id. at 255; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986); Casitas Mun. Water Dist., 543 F.3d at 1283; Lathan Co., Inc. v. United
States, 20 Cl. Ct. 122, 125 (1990).
B.

The Trails Act and the Fifth Amendment Takings Clause

The interaction between the Trails Act and the Takings Clause has been explained
as follows:
The Takings Clause of the Fifth Amendment provides in relevant part
that “private property [shall not] be taken for public use, without just
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compensation.” U.S. Const. Amend. V. “The Amendment ‘does not prohibit
the taking of private property, but instead places a condition on the exercise of
that power.’” Preseault I, 494 U.S. at 11 (quoting First English Evangelical
Lutheran Church of Glendale v. Cnty. of Los Angeles, 482 U.S. 304, 314
(1987)). In cases involving the Trails Act, it is now settled that if the
government takes private property by authorizing recreational trail use of a
railroad right-of-way, the government must provide just compensation.
Preseault I, 494 U.S. at 12-16. It is equally settled that “only those individuals
‘with a valid property interest at the time of the taking are entitled to
compensation.’” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)
. . . . Because real property rights arise from state law, the extent of the
plaintiffs’ property interests in the right-of-way depend on the law of the state
in which the property is located. [footnote omitted] See Stop the Beach
Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2597 (2010)
. . . . Thus, the Federal Circuit has determined that a taking occurs where the
issuance of the CITU or NITU authorizing recreational trail use effectively
extinguishes the state property rights of reversion of the right-of-way to the fee
owner.12 As the [Federal] Circuit has recently stated, “it is settled law that a
Fifth Amendment taking occurs in Rails-to-Trails cases when government
action destroys state-defined property rights by converting a railway easement
to a recreational trail, if trail use is outside the scope of the original railway
easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010).
Macy Elevator, 2011 WL 1319026 at *7 (renumbered footnote in original).
In this connection, the Federal Circuit has explained that these Rails-to-Trails
cases present three primary questions:
(1) who owned the strips of land involved, specifically did the Railroad . . .
acquire only easements, or did it obtain fee simple estates; (2) if the Railroad
acquired only easements, were the terms of the easements limited to use for
railroad purposes, or did they include future use as public recreational trails;

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Regarding the government action that gives rise to a taking, the Federal Circuit has held
that “[t]he issuance of the NITU is the only government 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.” Caldwell II, 391 F.3d at 1233-34; see also Ladd v.
United States, 630 F.3d 1015, 1023-24 (Fed. Cir. 2010).
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(3) even if the grants of the Railroad’s easements were broad enough to
encompass recreational trails, had these easements terminated prior to the
alleged taking so that the property owners at that time held fee simples
unencumbered by the easements.
Preseault v United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (“Preseault II”); see also
Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009). In sum, if
the railroad did not receive a fee interest but only a railroad purpose easement and if the
recreational trail use and railbanking authorized by the NITU exceed the scope of that
easement and prevented expiration of the easement and reversionary interests from
vesting in the fee owners, then a taking has occurred. See Ladd, 630 F.3d at 1019, reh’g
denied, No. 2010-5010, 2011 WL 2043242 (Fed. Cir. May 26, 2011).
It is not disputed that the railroads in these cases did not acquire fee interests in
the property that is the subject of these cases, and the plaintiffs do not allege that the
easements expired prior to issuance of the NITUs. Thus, these cases turn on the scope of
the railroad easements acquired by the railroad in each of the relevant conveyance
instruments and whether the Trails Act has prevented the reversion of the plaintiffs’
property rights under Kansas law.
C.

Scope of the Railroad Easements

The initial question the court must answer in these cases is whether under Kansas
law the railroad’s easements authorize recreational trail use and railbanking. As noted,
the Kansas courts have not directly opined on this question. Significantly, this court
recently found in another case that a compensable taking resulted under Kansas law from
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the issuance of a NITU where the railroad held only a “railroad purpose easement.” See
Nordhus Family Trust v. United States, No. 09-042L, 2011 WL 1467940 (Fed. Cl. April
12, 2011). Courts have reached the same result in connection with railroad purpose
easements in Vermont, Preseault II, 100 F.3d 1525; Washington, Lawson v. State, 730
P.2d 1308 (Wash. 1986); Wisconsin, Pollnow v. State Department of Natural Resources,
276 N.W.2d 738 (Wisc. 1979); Missouri, Glosemeyer v. United States, 45 Fed. Cl. 771
(2000); California, Toews v. United States, 53 Fed. Cl. 58 (2002); Florida, Rogers v.
United States, 90 Fed. Cl. 418 (2009); Indiana, Macy Elevator, 2011 WL 1319026;
Massachusetts, Capreal, Inc. v. United States, No. 09-186L, 2011 WL 1740543 (Fed. Cl.
May 6, 2011); and Texas, Ybanez v. United States, No. 09-172L, 2011 WL 1957687
(Fed. Cl. May 20, 2011).
In several other states, courts have found that the STB’s authorization of
railbanking and recreational trail use does not give rise to a taking based on the terms of
the railroad’s easements in those cases and the applicable state law. See Moody v.
Allegheny Valley Land Trust, 976 A.2d 484 (Pa. 2009) (Pennsylvania); Chevy Chase
Land Co. v. United States, 733 A.2d 1055 (Md. 1999) (Maryland); State by Wash.
Wildlife Pres., Inc. v. State, 329 N.W.2d 543 (Minn. 1983) (Minnesota); and Rieger v.
Penn Cent. Corp., No. 85-CA-11, 1985 WL 7919 (Ohio App. 1985) (Ohio).
The plaintiffs contend that the railroad easements at issue in this case, whether
obtained through condemnation or voluntary conveyance, are limited to railroad

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purposes. They argue further that “railroad purposes” includes only active use as a
railroad in connection with train use, under Kansas law. More specifically, the plaintiffs
argue that, under Kansas law, an easement for railroad purposes may not be used as a
recreational trail or maintained through railbanking. The government contends that
recreational trail use and railbanking are within the scope of the easements at issue in
this case under Kansas law. The government relies on Kansas cases that it contends
recognize that an easement acquired for one public use may shift to another public use
without being extinguished and cases that recognize that an easement is not lost if it is
being maintained for the purposes for which it was obtained, even if there is no active
use.
1.

Easements Acquired Through Condemnation

The parties agree that the easements at issue in these cases were created for
“railroad purposes.” Indeed, this view is compelled by Kansas law. At the time of the
subject condemnations, railroads were authorized to take property under the power of
eminent domain and to take and hold voluntary grants of real estate only “to aid in the
construction, maintenance and accommodation of its railway.” Kan. Gen. Stat. 1868, ch.
23, § 47 (currently codified as Kan. Stat. Ann. § 66-501). Further, Kansas law provides
that the extent of permissible uses of easements acquired by condemnation is determined
by reference to the statutes authorizing the condemnation and commissioners’ reports.
See Kan. Power & Light Co. v. Ritchie, 722 P.2d 1120, 1123 (Kan. Ct. App. 1986); State

-15-

v. Armell, 8 Kan. 288 (1871).
The process by which the subject railroads exercised their authorization to acquire
easements by condemnation for their railroads is set forth in Kansas General Statutes
1868, chapter 23, sections 81 through 86. In pertinent part, section 81 provides:
Any duly chartered and organized railway corporation may apply to the board
of county commissioners . . . to lay off . . . a route for such proposed railroad,
not exceeding one hundred feet in width . . . and also such land as may be
deemed necessary for side-tracks, depots and workshops, and water stations,
materials for construction . . . a right of way over adjacent lands sufficient to
enable such company to construct and repair its roads and stations, and a right
to conduct water by aqueducts, and the right of making proper drains.
Kan. Gen. Stat. 1868, ch. 23, § 81 (emphasis added). The commissioners have the route
surveyed, determine the quantity of land necessary, and appraise the value of the land
and damages to it. Id. § 82. The commissioners’ determinations are to be set forth in a
written report, which is filed with the county clerk. Id. The county clerk then files the
report with the county treasurer, who certifies the report upon the railroad corporation’s
payment in full of the appraisal. Id. § 83. Upon filing a copy of this certified report with
the register of deeds for the county in question, the railroad:
shall have the right to occupy the land so embraced within such route, for the
purposes necessary to the construction and use of its road; and to such portions
of such road over which a railroad shall be actually constructed within such
time, the perpetual use of such lands shall vest in such company, its successors
and assigns, for the use of the railroad, as soon as so much of such railroad
shall have been constructed fit for use.
Id. § 84 (emphasis added).
The court agrees with the parties based on these statutes and the limitations
-16-

specified in the condemnation reports, that the easements at issue in these cases were
condemned for the purpose of constructing and operating a railroad.13
2.

Easement Created by Voluntary Conveyance

There is no dispute that the one easement created by voluntary conveyance at
issue in these cases was also limited to “railroad purposes.” Under Kansas law, the
interest conveyed to a railroad by a voluntary grant depends on the interpretation of the
deed. Stone v. U.S.D. No. 222, 91 P.3d 1194, 1203-04 (Kan. 2004). The Chase deed at
issue in Pankratz states the conveyance was “for the purpose of constructing and
operating said Railway” and that “Should Railway Company fail or cease to use said
land for said purpose or fail to establish the Station and build a depot on [illegible] this
grant and said title shall revert back to the undersigned grantors, their heirs or assigns.”
J.A. A-2, ECF No. 66-1. The limitations in this deed are consistent with the Kansas
statute on voluntary grants for railroad rights-of-way, which stated that a grant may be
made “to aid in the construction, maintenance and accommodation” of a railway, but that

13

Although the charters for the railroads also indicated that they were created to operate
both railroads and telegraph lines, in Kansas the commissioners’ report in a condemnation
proceeding establishes the purposes for which the property can be used. See Roberts v. Upper
Verdigris Watershed Joint Dist. No. 24l, 392 P.2d 914, 920 (Kan. 1964); Armell, 8 Kan. 288.
The commissioners’ report relevant to Pankratz states the condemnation was of land “through
which proposed railroad shall be located by reason of the location, construction and operation of
said railroad in accordance with the provisions, regulations, and restrictions of the State of
Kansas[.]” J.A. A-1, ECF No. 66-1. The commissioners’ report relevant to Biery similarly limits
the interest condemned to “a route for such proposed railroad” and such land that was necessary
for certain ancillary uses such as side-tracks, depots, and water stations. J.A. D-1, D-2, ECF No.
66-6. Thus, the reports at issue in these cases establish that these lines were created for railroad
use only.
-17-

“the real estate received by voluntary grant[] shall be held and used for the purpose of
such grant only.” Kan. Gen. Stat. 1868, ch. 23, § 47. Thus, the court agrees with the
parties that the Chase easement is also for railroad purposes only.
D.

Recreational Trail Use Is Not a Railroad Purpose

Having determined that the easements at issue in these cases were created for
“railroad purposes,” the court now turns to the first question of whether recreational trail
use falls within the scope of “railroad purpose” under Kansas law. If it does, the court’s
inquiry ends because even in the absence of the Trails Act such use would maintain the
railroad easements under Kansas law, preventing their reversion to the plaintiffs, and
thus there has not been anything taken by the government by its issuance of the NITUs.
A finding that trail use is within the scope of the easements at issue would also defeat the
plaintiffs’ argument that authorization of trail use in a sense imposed a new easement on
the plaintiffs’ property. If, however, recreational trail use falls outside the scope of the
easement, a taking may have occurred.
The parties rely on separate Kansas Supreme Court cases to support their
respective views. The plaintiffs argue that railroad purposes include only use for train
traffic and that any other use falls outside the scope of a railroad purpose easement. The
government argues that the Kansas courts have recognized that easements may be
construed to allow for the advancement of any legitimate public purpose, including
additional uses not identified in the original easement.

-18-

The court finds that the Kansas Supreme Court’s view is more restrictive than the
government argues and that Kansas precedent would not support a reading of “railroad
purposes” to include “recreational trail use.” In addition, as discussed below, the court
finds that the Kansas Supreme Court decisions regarding the scope of public utility and
road easements relied upon by the government are distinguishable and do not support the
broad construction of “railroad purpose” advocated by the government.
The Kansas Supreme Court’s relatively restrictive interpretation of railroad
easements was established in Armell. In that case the Kansas Supreme Court considered
whether, when acquiring a 100-foot-wide right-of-way, the railroad had also acquired the
right to dig drainage ditches across adjoining lands. The Court held that although the
railroad had the right under the condemnation statute to acquire more than a 100-footwide right-of-way for purposes of maintaining the railroad bed, where it had not done so
in the condemnation, the court would not extend the easement to accommodate the
railroad’s needs:
[I]t does not follow, because these are necessary appendages of the road, that
the company obtained them as rights incidental to its condemnation of the right
of way 100 feet in breadth. On the contrary, when the rights or easements are
taken by condemnation, the proceedings must show definitely and precisely
what is taken, and what the owner parts with. Nothing is taken by implication
or intendment. . . .
The land appropriated by the railroad company was just 100 feet in
width, and no more. That is just what was condemned[–]what was paid
for[–]and beyond that limit they obtained no right whatever, not even an
easement which would authorize them to run a wheelbarrow over the adjacent
lands to repair their road.

-19-

Armell, 8 Kan. 288 (emphasis added). Armell makes clear that Kansas courts will look
closely at what has in fact been granted when a railroad acquires an easement.
More recently, the Kansas Supreme Court has recognized that easements should
be construed to advance the purposes of the easement granted. For example, in Spears v.
Kansas City Power & Light Co., 455 P.2d 496 (Kan. 1969), the Kansas Supreme Court
explained that “an easement or a servitude imposed upon another’s land extends to all
uses directly or indirectly conducive to advance the purposes for which it was obtained.”
Spears, 455 P.2d at 502. In this connection, the Kansas Supreme Court cited with
approval a decision of the Missouri Supreme Court, which applied this rule in a railroad
context. Id. (citing Hennick v. Kan. City S. Ry. Co., 269 S.W.2d 646 (Mo. 1954)).
In Hennick the Missouri Supreme Court was called upon to construe the scope of
a railroad purposes easement which had been initially granted to a steam railway in 1908
for the operation of a “through” railroad between specified points; many years later
another railroad acquired the easement, which it used for “industrial track purposes.”
Hennick, 269 S.W.2d at 652-53. The Missouri Supreme Court rejected the fee owner’s
contention that the easement authorized only a “certain type of railroad between certain
points in certain counties.” Id. at 652. Rather, the Missouri Supreme Court stated:
[W]e construe the easement originally obtained as one authorizing the use of
the land in question for . . . the purpose of operating a railroad over that
particular land, and for any legitimate railroad purpose incidental to the use of
that land for operating trains over it. [citation omitted] In our view, so long
as the instant right-of-way continues to be used for legitimate right-of-way
purposes in connection with the operation of a railroad, the easement
-20-

continues.
Id. (emphasis added). The Missouri Supreme Court went on to hold that use of the rightof-way for industrial track fell within the scope of the original railroad purpose
easement. The Missouri Court concluded that “defendant’s use of the tract is one of the
uses for which the land was condemned.” Id. at 653. Thus, the Kansas Supreme Court
has apparently agreed that “so long as the right-of-way continues to be used for . . .
purposes in connection with the operation of a railroad,” the use is within the scope of a
railroad purpose easement. Id. at 652.
Based on these precedents, the court concludes that easements in Kansas may be
used to “advance” their original purpose, but all uses must be tied to that original
purpose. Here, the court finds that recreational trail use is not a use contemplated by the
original easements because it is not a use that advances the operation of trains. Indeed, a
recreational trail is only viable where the operation of trains has ceased. As such,
recreational trail use is outside the scope of a railroad purpose easement. This court
therefore concurs in the conclusions of the court in Nordhus, which also held that
recreational trail use is not a use included in the scope of a railroad purpose easement
under Kansas law. Nordhus, 2011 WL 1467940 at *9.
In addition, the court finds that the Kansas cases relied upon by the government
do not alter this conclusion regarding the scope of railroad purpose easements under
Kansas law. The government relies on Atchison, Topeka & Sante Fe Railway Co. v.

-21-

O’Leary, 100 P. 628 (Kan. 1909), in which the Kansas Supreme Court refused to enjoin
a city from paving a public road that encroached upon a railroad right-of-way. The
government contends that this decision establishes that a right-of-way acquired for
railroad purposes may be put to other public uses so long as those uses do not interfere
with the railroad purpose. The government argues that it follows from O’Leary that use
of a former railroad corridor as a recreational trail is permissible because the current trail
use does not interfere with potential future railroad use. The court disagrees with the
government’s broad characterization of O’Leary. First, O’Leary involved the situation in
which the railroad, the owner of the right-of-way easement, sued to prevent a portion of
its right-of-way from being put to another public use. Rather than opining on the breadth
of the permissive uses of an easement, the court’s decision reflects a notion that the
railroad’s ownership of a right-of-way is subject to certain limits, and that “the natural
order of events” could lead to the need for new crossings such that “other limitations in
favor of the general public upon an exclusive right of occupancy by the railroad of its
right of way might be justly imposed.” O’Leary, 100 P. at 629 (quoting No. Pac. Ry. Co.
v. Townsend, 190 U.S. 267, 272 (1903)). The court does not find this holding regarding
the need for increased public crossings over railroad rights-of-way to be analogous to the
issue in these cases, in which railroad use has stopped altogether. Second, O’Leary
involved the paving of a road that had been in existence for more than twenty years; it is
unlike the current situation in which all of the railroad’s tracks are removed and its bed is

-22-

converted into a completely different use. The Kansas Court’s holding in O’Leary does
not support the conclusion that in Kansas a railroad easement may be put to any public
purpose regardless of the purposes identified in the original easement.
For these same reasons, the court disagrees with the government’s contention that
Kansas law allows for a broad shifting of public uses from one public use to another
public use. The government relies upon Kansas Electric Power Co. v. Walker, 51 P.2d
1002 (Kan. 1935), to support its view that Kansas law allows for a broad interpretation
of public use easements. In Kansas Electric, the use of an easement across private
property for an electric street car line was changed by the operator to a right-of-way for
gas-powered buses. The Kansas Supreme Court considered whether the changed method
of transportation constituted an abandonment of the right-of-way for electric street car
service. The Court held:
[T]he granting of the privilege of making such change and the right to use the
streets of the city in the new and different way will not in any way affect the
rights of these parties as to the passageway over private property within the
city limits.
....
[T]he additional noise and vibration found by the court is not such an element
as should wholly hinder and prevent the taking of a forward or progressive
step, so recognized by the general public, when not in itself injurious or
destructive.
Kan. Elec., 51 P.2d at 1002, 1004-05 (emphasis added) (citing, e.g., In re Int’l Ry. Co.,
275 N.Y.S. 5, 9 (N.Y. App. Div. 1934) (“Its enjoyment should continue, though the
obsolete methods of transportation named in the franchise be replaced by modern ones,

-23-

unless some right of the public is interfered with, and unless the utility’s affirmative
servitude over the streets is increased.”)).
The court finds that Kansas Electric does not support the conclusion that Kansas
law supports a broad shifting use approach to construing railroad purpose easements.
First, the Kansas Supreme Court’s decision in Kansas Electric rested on its reasoning
that technological development will necessitate “progressive” changes in the use of
transportation easements. See id. The cases before this court, however, do not involve a
“forward or progressive step” in the use of the railroad easement. See id. Rather, there
has been a cessation of technologically advanced use (i.e. railroad use) and a transition to
a less advanced use (i.e. trail use) more akin to a “leap” than a “step.” Further, in
contrast to Kansas Electric, in which the court found the burden imposed by electric
streetcar use and gas-powered bus use to be similar, the court finds the use of a right-ofway for railroad traffic and for foot traffic to be wholly dissimilar. In the latter situation,
the landowner’s fee is burdened in a manner fundamentally different from the bargainedfor use. As this court stated in Toews, decided under California law:
[T]he use [as a trail] is different in kind. The purpose is fundamentally
recreational, not the movement of goods or people in commerce. In the past,
plaintiffs’ land was subject to the isolated passage of a freight train. Now their
land is available to any member of the public for any legal purpose. The
current use, a linear park, is, in short, fundamentally different in kind than a
railroad purpose. Hence, a new easement has been imposed irrespective of
railbanking.
Toews, 53 Fed. Cl. at 62 (citing Pollnow, 276 N.W.2d 738); see also Preseault II, 100

-24-

F.3d at 1554 (Rader, J., concurring) (“Realistically, nature trails are for recreation, not
transportation. Thus, when the State sought to convert the easement into a recreational
trail, it exceeded the scope of the original easement . . . .”).
In view of the foregoing, the court concludes that use of the railroad purpose
easements for recreational trail purposes is not related to train travel (nor does it
“advance the purposes” for which the easements were created, see Spears, 455 P.2d at
502), and imposes a different burden on the plaintiffs’ estates beyond that reasonably
contemplated at the time of conveyance or condemnation. Thus the court concludes that
recreational trail use amounts to a use outside the scope of the easement granted.
While the court finds that recreational trail use is outside the scope of the
easement, the court must next examine whether railbanking is also outside the scope of
the railroad purpose easements at issue. The plaintiffs argue that the court need not
address this issue because recreational trail use outside the scope of the railroad purpose
easements resulted in forfeiture of the easements and thus, but for the Trails Act, the
underlying fee would have reverted back to the plaintiffs without anything more.14 The
government argues that Kansas law does not support a finding that railroad easements
are forfeited by conversion to trail use. Rather, the government contends that if

14

The plaintiffs argue that imposition of a use outside the scope of the easement is a
misuse that would have caused the easement to terminate under state law but for the operation of
the Trails Act. The plaintiffs have not presented, and the court has not found, any Kansas law to
support this proposition. Because the court concludes, infra, that the NITUs preempted
abandonment under state law, the court does not reach the plaintiffs’ argument regarding
termination.
-25-

railbanking is a railroad purpose under Kansas law, the railroad easements would have
remained in existence regardless of the Trails Act, and thus the STB has not interfered
with the plaintiffs’ property interests by retaining jurisdiction over the railroad corridor.
Put another way, the government contends that if railbanking–the maintenance of the
corridor for future potential rail service–is a use within the scope of the easement, then
the Trails Act has not effected a taking by preempting abandonment under Kansas law.15
E.

Railbanking Is Not a Railroad Purpose That Works to Preserve
Railroad Purpose Easements

Although, for the reasons discussed above, the plaintiffs do not believe the court
need reach this issue,16 the plaintiffs nonetheless argue that railbanking is not a railroad
purpose where, as here, the rights-of-way are owned by a non-railroad, the tracks are
removed, and the possibility of future rail use is at most “a vague existential notion that
maybe someday a railroad might possibly come back.” Pls.’ Opening Br. 31, ECF No.
82-1. Thus, the plaintiffs argue, the government’s actions in authorizing railbanking
have taken the plaintiffs’ right to hold unencumbered fee. The government argues that
railbanking is a railroad purpose under Kansas law and therefore the Trails Act had not

15

The government argues that if trail use is outside the scope of the easement but
railbanking is a permissible use of the railroad purpose easement, then the holder of the
easement, and not the federal government, is liable for any damages resulting from trail use.
16

Indeed, the Federal Circuit suggested in Preseault II that such a consideration is
irrelevant to the question of whether a taking has occurred: “The fact that restoration of [a]
portion of the line would be technically feasible tells us little. The question is not what is
technically possible to do in the future, but what was done in the past.” Preseault II, 100 F.3d at
1547.
-26-

prevented the subject easements from expiring under Kansas law. The government
contends that it therefore has not taken away any of the plaintiffs’ property rights under
Kansas law.
For the reasons that follow, the court finds that the plaintiffs have the better
argument under Kansas law. The Kansas Supreme Court has ruled on several occasions
that an easement acquired for railroad purposes is effective only so long as the easement
is used for or in connection with active rail service. As the court held in Abercrombie v.
Simmons, 81 P. 208 (Kan. 1905):
“[T]he grant does not ordinarily vest a fee in the company, but vests such an
estate–usually an easement–as is requisite to effect the purpose for which the
property is required. . . .”
. . . [T]he interest was taken for use as a right of way, it is limited to that use,
and must revert when the use is abandoned.
Abercrombie, 81 P. at 210-11 (holding that where railroad acquired railroad purpose
easement but never graded and constructed the track, the railroad’s subsequent
conveyance was void because the easement had expired) (quoting 2 Byron K. Elliott &
William F. Elliott, Treatise on the Law of Railroads, §400 (1897)). The Kansas Supreme
Court has further stated:
We have held that when land is devoted to railroad purposes it is immaterial
whether the railway company acquired it by virtue of an easement, by
condemnation, right-of-way deed, or other conveyance. If or when it ceases
to be used for railway purposes, the land concerned returns to its prior status
as an integral part of the free-hold to which it belonged prior to its subjection
to use for railway purposes.
Harvest Queen Mill & Elevator Co. v. Sanders, 370 P.2d 419, 423 (Kan. 1962) (emphasis
-27-

added). While these decisions do not directly answer the question of whether railbanking
may be a “railway purpose,” the decisions make clear that continued rail use and
cessation of rail use by the railroad are treated differently under Kansas law. As the
Kansas Supreme Court held in Abercrombie, an easement created by a railroad company
that is not put to actual use as a railroad will expire. Thus, once a railroad stops all train
traffic on its tracks, the easement expires.
The Kansas Supreme Court decision in Harvey v. Missouri Pacific Railroad, 207
P. 761 (Kan. 1922), relied upon by the government is not inconsistent with the court’s
conclusion. In Harvey the fee owner of land over which an easement for “railway side
tracks, depots, workshops, water station, and stockyards” was created through
condemnation proceedings sued to quiet title on the grounds that the contested easement
had “yet been used or needed for railway purposes” but was adjacent to a 100-foot-wide
right-of-way under current use for a rail line. Harvey, 207 P. at 761-62. In this context,
the Kansas Supreme Court held that the railroad’s “rights acquired under [condemnation]
proceedings are not lost through lapse of time and nonuse, so long as the railway has a
potential need of them.” Id. at 763. The Kansas Supreme Court went on to hold,
however, that its conclusion was based on the fact that an actual railroad was operating
next to the subject strip. The Kansas Court stated, “If the [operating] railway . . . should
be abandoned or relocated elsewhere than on plaintiff’s property, the dominant estate
would terminate, and the defendant’s rights acquired by condemnation would terminate

-28-

and revert to the plaintiff.” Id. at 762. Critical in Harvey was the fact that the railroad
easement was being held in conjunction with actual and operating rail service. It was
because of that “potential need” only that the Kansas Supreme Court held that the railroad
could continue to hold its easement over lands not yet in use; once the need vanished, the
easement would terminate. Id. at 763. In the cases before the court, however, there is no
active rail line in operation to support the “potential need” of any existing railroad. To
the contrary, the subject rights-of-way are no longer even owned by a railroad company.
The government’s reliance on Matlack v. City of Wichita, 407 P.2d 510 (Kan.
1965), and similar cases involving easement “nonuse” is also misplaced. In Matlack the
court considered whether an easement condemned by a city for a public street had expired
because it had not been put to use. The Kansas Supreme Court held:
Mere nonuse, for a limited time, of the land condemned for public purposes,
unless accompanied by failure to pay compensation, does not constitute
abandonment. An easement on land dedicated to or condemned for a public
use does not revert to the fee owner unless its use for the dedicated or
condemned purpose has become impossible, or so highly improbable as to be
practically impossible.
Matlack, 407 P.2d at 511 (citing McAlpine v. Chicago Great W. Ry. Co., 75 P. 73 (Kan.
1904)). The court found that there was nothing in the record before it that suggested that
“use of the land for some street purpose is impossible or even highly improbable.” Id.;
see also Riverside Drainage Dist. of Sedgwick Cnty. v. Hunt, 99 P.3d 1135, 1139 (Kan.
App. 2004) (no abandonment of easement for maintenance of drainage ditch because use
was not “impossible, or so highly improbable as to be practically impossible” where
-29-

“[t]he drainage ditch exists and will need maintenance from time to time” (citing
Matlack)). These cases stand in marked contrast, however, to the subject cases, where
there has not been active rail traffic for years and the STB found that there is no
foreseeable demand for rail service on the lines.17 In addition, the corridors are now
owned and maintained by non-railroad entities that maintain and pay taxes in connection
with the easements. Given these undisputed facts, the court finds that future use as a
railroad is indeed “highly improbable” and thus railbanking is not, under Kansas law and
the facts of these cases, a railroad purpose sufficient to preserve the subject easements
and prevent the abandonment of a railroad easement.
F.

Abandonment of the Easement Under State Law

Given the court’s conclusions regarding the scope of the easements at issue, the
court agrees with the plaintiffs that, but for the STB’s issuance of the NITUs, the subject
easements would have been abandoned by the railroads and the plaintiffs’ property would
have no longer been encumbered by a railroad purpose easement. There is no dispute that
since the 1986 enactment of the Kansas abandonment statute, if the STB issues a NITU,

17

Regarding the line at issue in Biery, the STB found that “there is now no demand for or
prospect of rail service over the line, and no traffic has originated, terminated, or moved
overhead on this line segment for two years.” J.A. E-7, ECF No. 66-7. Regarding the line at
issue in Pankratz, the STB found, “The Line is stub-ended and, therefore, not capable of handling
overhead traffic. The Line has had no traffic in recent years. In addition, no maintenance has
been performed on this dormant Line for some time.” J.A. B-4, ECF No. 66-2. The STB’s
historic report noted, “By the mid-1990’s, all operations on the Line had ceased. The Line is in
poor condition and has not seen any traffic in recent years. In order to restart freight operations,
significant rehabilitation would be required.” J.A. B-5, ECF No. 66-3.
-30-

legal abandonment of the easement cannot occur under Kansas law despite all
appearances that would otherwise support such a finding. See Bitner v. Watco Cos., 226
P.3d 563, 566 (Kan. App. 2010) (no abandonment of railroad right-of-way despite nonuse
where railroad did not file for an abandonment order with the STB). However, it is also
not disputed that, but for the NITUs and the trail use agreements, Butler County (in
Pankratz) and BNSF (in Biery) would have been authorized to consummate abandonment
of the rail line.18 Butler County tried in vain to reestablish rail service after it purchased
the line and, after it was unable to find an operator to do so, took steps to abandon the
line. BNSF relinquished all liability and responsibility for maintenance of the corridor
and payment of taxes, evidenced no intent to maintain an active role in maintaining the
corridor, and retains no right to re-enter the corridor.19 After entering into trail use
agreements, Butler County and BNSF removed the tracks, rendering present use as a
railroad impossible and future use improbable. In such circumstances, the court finds that
under Kansas law these railroad rights-of-way were effectively abandoned for state law
purposes, and only the STB’s issuance of the NITUs prevented the plaintiffs from
enjoying their underlying fee unencumbered by the easements.

18

The plaintiffs note also that “discontinu[ance]” is regulated separately from
“abandon[ment]” under 49 U.S.C § 10903(a)(1)(A) and (a)(1)(B), respectively. Thus, the
process for abandonment will result in abandonment, rather than merely discontinuing railroad
operation.
19

In Pankratz, Butler County was both the corridor owner at the time of the issuance of
the NITU and also the trail operator after issuance of the NITU. BNSF had severed its ties to the
corridor at issue in that case in 2002, when it sold the corridor to Butler County.
-31-

The court finds that the issuance of the NITUs prevented the expiration of the
railroad easements that would have otherwise been abandoned and thus the issuance of
the NITUs resulted in a taking of the plaintiffs’ reversionary interests. By operation of
the Trails Act in these cases, the plaintiffs have been deprived of the unencumbered fee
they would have otherwise enjoyed under state property law.
G.

Pankratz: Temporary Versus Permanent Taking

Having concluded that the issuance of the NITUs gave rise to takings in these
cases, the court must now decide whether the facts of Pankratz give rise to a single
permanent taking or a temporary taking followed by a permanent taking. The plaintiffs
contend that the issuance of the first NITU, on September 14, 2004, effected a permanent
taking of their property interest.20 The government contends that the September 14, 2004
NITU effected, at most, a temporary taking that extended only until that NITU expired by
its terms on March 13, 2005. The government argues that any permanent taking accrued
on June 2, 2005 when the STB issued the second NITU, which remains in effect.
The Federal Circuit has explained:
[T]he NITU operates as a single trigger to several possible outcomes. It may,
as in this case, trigger a process that results in a permanent taking in the event
that a trail use agreement is reached and abandonment of the right-of-way is
effectively blocked. Preseault II, 100 F.3d at 1552; see also [Toews v. United
States, 376 F.3d, 1371, 1376 (Fed. Cir. 2004)]. Alternatively, negotiations
may fail, and the NITU would then convert into a notice of abandonment. In
these circumstances, a temporary taking may have occurred. It is not unusual

20

The plaintiffs concede that an adjacent owner who acquired fee after the date of this
initial NITU is not entitled to compensation.
-32-

that the precise nature of the takings claim, whether permanent or temporary,
will not be clear at the time it accrues.
Caldwell II, 391 F.3d at 1234 (footnotes omitted); see also Illig v. United States, 67 Fed.
Cl. 47, 52 (2005). In Barclay v. United States, 443 F.3d 1368 (Fed. Cir. 2006), the
Circuit examined the question of whether a single permanent taking or a temporary taking
and a later permanent taking occurred where ten days passed between the expiration of
one NITU and the issuance of a second. Finding that the taking, if any, stemmed from the
issuance of the first NITU, the Circuit explained, “[T]he new NITU in substance merely
extended the original NITU and listed a new potential trail operator.” Barclay, 443 F.3d
at 1376. While Pankratz involves a more lengthy gap between the expiration of the first
NITU and the issuance of the second than did Barclay, the court finds that the Circuit’s
reasoning in Barclay is applicable here. The second NITU was in effect a modification
and extension of the original NITU issued September 14, 2004. Indeed, just as was the
case in Barclay, in issuing the June 2, 2005 NITU, the STB stated, “[T]he decision and
notice served on September 14, 2004 . . . is modified to the extent necessary to . . . permit
BCED to negotiate with the County for trail use of the entire line . . . .” J.A. B-15, ECF
No. 66-4 (emphasis added). For these reasons, the court finds that there has been a single
taking in Pankratz which accrued on September 14, 2004.
III.

CONCLUSIONS
For the forgoing reasons, the plaintiffs’ motions for summary judgment are

GRANTED and the defendant’s motions for summary judgment are DENIED. The
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parties shall file a joint status report detailing next steps for resolving the remaining
issues in these cases by July 11, 2011.
IT IS SO ORDERED.

s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge

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