ADKINS et al v. USA

Filing 59

PUBLISHED OPINION (Joint Status Report due by 9/5/2012) granting in part and denying in part 42 Motion for Summary Judgment; granting in part and denying in part 45 Cross Motion. Signed by Judge Lawrence M. Baskir. (dcl) Copy to parties.

In the United States Court of Federal Claims
Case No. 09-503L
(FILED: July 10, 2012)
TO BE PUBLISHED
*****************************************************
WILMA N. ADKINS, et al.,
*
Plaintiffs,
*
*
v.
*
*
THE UNITED STATES OF AMERICA,
*
Defendant.
*
*
*****************************************************

Rails-to-trails; condemnation
followed by deed; scope of the
easement; easement limited to
railroad purposes; fee simple
conveyance; unlimited easement;
adjacency requirement; extent of
takings liability.

Thomas Scott Stewart, Baker, Sterchi, et al., Kansas City, MO, attorney of
record for the Plaintiff.
Frank James Singer, U.S. Department of Justice, Washington, D.C., attorney of
record for the Defendant.
Amelia Moorstein, Law Clerk.

OPINION
BASKIR, Judge.
Plaintiffs are 55 landowners collectively owning 99 parcels of land (92 of which
are at issue here) located in Polk County, Iowa. Plaintiff moves for summary judgment
under Rule 56 of the Rules of the U.S. Court of Federal Claims (RCFC), alleging that
the Surface Transportation Board’s (STB) issuance of a Notice of Interim Trail Use
(NITU) amounts to a taking of their property under the Fifth Amendment. Defendant
also moves for summary judgment, disputing the application of various source deeds to
the parcels at issue, the adjacency of various parcels to the land at issue, and the
nature of the railroad’s and plaintiffs’ property interest in the land at issue.
After reviewing the parties’ submissions, we grant plaintiffs’ motion in part, deny
plaintiffs’ motion in part, grant defendant’s motion in part, and deny defendant’s motion
in part for the reasons discussed below. We also dismiss those claims that plaintiffs
have agreed to dismiss.

BACKGROUND
I.

General Rails-to-Trails Background

This is a rails-to-trails case. The court will briefly summarize the statutory
context of this litigation.
Congress enacted section 1247(d) of the National Trails System Act (Trails Act)
in an effort to preserve railroad corridors for possible future rail use by preempting state
abandonment law. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 7-8 (1990)
(citing National Trails System Act Amendments of 1983, Pub. L. No. 98-11, § 208(d),
97 Stat. 42, 48 (codified as amended at 16 U.S.C. § 1247(d))).
Pursuant to its rule-making authority, the STB published regulations concerning
abandonment of and discontinuance of service over rail lines, including regulations
relating to railbanking pursuant to section 1247(d). 49 C.F.R. §§ 1152.1-1152.60. To
pursue regulatory abandonment or discontinuance of service over a rail line, rail
operators must file an application for abandonment or discontinuance with the STB.
49 U.S.C. § 10903; 49 C.F.R. § 1152.20 (establishing the regulatory framework for
abandonment/discontinuance application). In certain circumstances, a rail operator
may initiate proceedings for exempted abandonment or discontinuance. 49 C.F.R
§ 1152.20.
After a railroad initiates an abandonment or exempted abandonment proceeding,
a state, political subdivision, or qualified private organization may submit a petition in
that proceeding indicating its interest in acquiring or using the subject rail corridor for
interim use and railbanking under section 1247(d). Id. § 1152.29(a). If the rail operator
agrees to negotiate an interim trail use agreement with the proposed trail operator, the
STB must issue a NITU. Id. § 1152.29(d). The NITU suspends the railroad’s initial
proceedings and provides a 180-day window for the rail operator and third party to
negotiate an interim trail use agreement. Id.
If the parties enter into an interim trail use agreement, the abandonment
proceedings are suspended and rail service is discontinued. Interim trail use under that
agreement “shall not be treated, for purposes of any law or rule of law, as an
abandonment of the use of such rights-of-way for railroad purposes.” 16 U.S.C.
§ 1247(d). If no railbanking agreement is reached, the rail operator may abandon the
rail line, subject to the satisfaction of any other conditions of abandonment. 49 C.F.R.
§ 1152.29(d)(1).

II.

Factual Background

The following facts are taken from the parties’ filings and are undisputed except
where noted.
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Beginning in the late 1880's, a combination of different railroad companies
obtained property rights in conjunction with their construction of segments of the
railroad corridor at issue. The primary railroad constructor for the parcels in this suit
was Des Moines & Minnesota Railroad Company (Des Moines Railroad). Des Moines
Railroad obtained property rights through its own name as well as through Martin L.
Sykes. Iowa and Minnesota Railway Company (Iowa Railway) also obtained property
rights for a portion of the rail corridor. The railroads acquired the property both through
condemnation and deeds.
Union Pacific Railroad Company (“Union Pacific”) became the successor-ininterest to this rail line. Union Pacific filed a combined environment and historical report
concerning the relevant rail corridor on June 3, 2003, and filed with the STB a petition
for exemption from formal abandonment proceedings on July 16, 2003. On August 7,
2003, Iowa National Heritage Foundation filed a petition with the STB indicating that it
was interested in negotiating a trail use agreement with Union Pacific and requesting
that the STB issue a NITU rather than an outright abandonment authorization between
milepost 10.7 near Ankeny, Iowa, to milepost 341.1 near Slater, Iowa.
On August 11, 2003, Union Pacific responded to the Iowa National Heritage
Foundation’s August 7 petition by stating that it had no objection to a standard public
use condition and by expressing its willingness to negotiate a possible interim trail use
agreement. The STB issued its NITU on September 3, 2003. The STB authorized
extensions of the time afforded for negotiating an interim trail agreement. The trail use
agreement and sale of the rail corridor was finalized on December 13, 2005.
Plaintiffs filed a complaint on August 3, 2009, and later filed first amended and
first corrected amended complaints to include other plaintiffs. The final list of plaintiffs
includes 55 landowners collectively owning 99 parcels of land located in Polk County,
Iowa -- this motion is filed with respect to 92 parcels. Plaintiffs allege that the STB’s
issuance of a NITU amounts to a taking of their property under the Fifth Amendment.

DISCUSSION
I.

Legal Standard

Summary judgment is appropriate where there is “no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter of law.” RCFC
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A genuine
issue is one that “may reasonably be resolved in favor of either party.” Anderson,
477 U.S. at 250. A fact is material if it “might affect the outcome of the suit.” Id. at 248.
The moving party bears the burden of establishing the absence of any material fact,
and any doubt over factual issues will be resolved in favor of the non-moving party.
Mingus Construcotrs, Inc. v. Unites States, 812 F.2d 1387, 1390 (Fed. Cir. 1987) (citing
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United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) and SRI Int’l v. Matsushita
Elec. Corp., 775 F.2d 1107, 1116 (Fed. Cir. 1985)).
Once the moving party meets its initial burden, the non-moving party may not
rely merely on allegations of denials in its own pleading. See RCFC 56(c)(1). If the
moving party meets its initial burden, the non-moving party, through affidavits or as
otherwise provided in RCFC 56, must set forth specific facts showing a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (applying Fed. R. Civ. P.
56). In evaluating motions for summary judgment, courts must draw any inferences
from the underlying facts in the light most favorable to the non-moving party and may
not engage in credibility determinations or weigh the evidence. Anderson, 477 U.S. at
255; Matsushita Elec. Indus Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II.

Rails-To-Trails Litigation History

The Preseault cases establish the framework for analyzing a takings claim
pursuant to the Trails Act. In Preseault v. Interstate Commerce Comm’n, the Supreme
Court examined the history and purpose of the Trails Act, the constitutionality of the
Trails Act, and the proper vehicle for property owners to receive just compensation for a
taking under the Trails Act. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1
(1990) (“Preseault I”). The court held that the Tucker Act provides jurisdiction to the
Court of Federal Claims and is the proper remedy to recover damages for a taking
pursuant to operation of the Trails Act. Id.
The court in Preseault I also stated that state property laws dictate whether the
railroad held an easement or fee interest, and thus, dictated the nature of the property
interests held by property owners. Id. at 8. Under section 8(d) of the Trails Act
authorizing issuance of a NITU, Congress intentionally prevented easement property
interests from reverting to adjacent property owners under state law that would occur
absent the Trails Act. Id.
In Preseault v. United States, the Federal Circuit laid the foundation and set forth
the requirements for a compensable taking by operation of the Trails Act. Preseault v.
United States, 100 F.3d 1525 (Fed. Cir. 1996) (“Preseault II”). The court held that
authorization of conversion of a railroad right-of-way to a public recreational trail by the
Trails Act constituted a taking of the property of the owners of the underlying fee simple
estate. The court set forth a test for determining whether a plaintiff is due just
compensation: First, the court must determine whether the railroad held an easement
or held the land in fee simple; if the terms of the easement limited it to use for railroad
purposes, the authorization for future use as a public recreational trail constituted a
taking. If the scope of the railroad’s easements were broad enough to encompass trail
use, a taking still occurred if the easements were abandoned prior to NITU. Id. at 1533.

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III.

The Court’s Table

The parties dispute certain attributes of the parcels that would be determinative
as to whether the government is liable for a Fifth Amendment taking. The claimants are
laid out in numerical order in the table below. Next to each claimant, the court has
summarized each party’s position and the conclusion that the court has ultimately
reached for each claimant. The reasoning for the court’s decision is discussed in
further detail in the following sections. Where the defendant has asserted several
theories to preclude takings liability, the court has only noted the chief argument that
persuaded the court to enter judgment for defendant.
Claimant Name
and Number

Plaintiff Position

Defendant Position

Court Holding

1. William &
Paula Eichinger

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the John Witner
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

2. Michael Staab
& Deborah K.
McKittrick

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the John Witner
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

3.

Dismiss

Dismiss

Dismiss

4.

Dismiss

Dismiss

Dismiss

5. Charles L. &
Cynthia Cannon

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

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6. Frank R., Jr.
Martin

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

7. Robert L. &
Patricia A. Peters

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

8. Todd E. &
Susan L.
Johnson

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

9. Hope Church
of the Nazarene

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

10. Clifford & Kari
Suhr

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

11. David E. &
Cynthia L.
Brooner

When a
condemnation was
followed by a deed,

The condemnation
is irrelevant. The
court must look at

DENY plaintiffs’
Motion and
GRANT

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the railroad was
granted an easement
limited to railroad
purposes.

the deed only, and
the James Irvine
deed granted the
railroad fee title.

defendant’s Motion

12. Ronald E.
Pinyan &
Catherine
Anderson

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

13. Christopher
David Feldhacker

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

14. Branko &
Jadranka
Todorovic

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

15. Floyd W. &
Patricia A. Cooke

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

16. David M. &
Christine L.
Chongo

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

17. Michael R. &

When a

The condemnation

DENY plaintiffs’

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Jane L. Nieland

condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

Motion and
GRANT
defendant’s Motion

18. Peter R. &
Renita R.
DiDonato

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

19. Michael &
Lisa Beving

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

20. Ronnie L. &
Deborah A. Smith

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

21. Bob J. &
Pamela J. Ballard

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

22. Doug
Smelling

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

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23.

Dismiss

Dismiss

Dismiss

24. Boyce L.
Lange Living
Trust, Boyce L.
Lange, Trustee

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

25. Clayton W. &
Gayle L
Lindstrom

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

26. Clayton W. &
Gayle L.
Lindstrom

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

26A. MLSK, LLC

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

26B. MLSK, LLC

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

26C. MLSK, LLC

When a
condemnation was
followed by a deed,
the railroad was

The condemnation
is irrelevant. The
court must look at
the deed only, and

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

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granted an easement
limited to railroad
purposes.

the James Irvine
deed granted the
railroad fee title.

27A. Dorothy
Wheeler Trust &
David Harmon

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the James Irvine
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

27B.

Dismiss

Dismiss

Dismiss

28.

Dismiss

Dismiss

Dismiss

29. Gary L. &
Melva B. Schmidt

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the August Matter
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

30. Ronald A. &
Jody L. Palmer

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the August Matter
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

31A. W. Nevin &
Bonita Jean
Harmon

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the John Dunlap
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

31B. W. Nevin &
Bonita Jean
Harmon

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad

The condemnation
is irrelevant. The
court must look at
the deed only, and
the John Dunlap
deed granted the

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

- 10 -

purposes.

railroad fee title.

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the John Dunlap
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

31D. W. Nevin &
Bonita Jean
Harmon and
Randy C. & Paula
A. Zink

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

31E. W. Nevin &
Bonita Jean
Harmon and
Randy C. & Paula
A. Zink

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

31F. W. Nevin &
Bonita Jean
Harmon and
Randy C. & Paula
A. Zink

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

31G. W. Nevin &
Bonita Jean
Harmon and
Randy C. & Paula
A. Zink

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

31H. W. Nevin &
Bonita Jean
Harmon and
Randy C. & Paula
A. Zink

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

31I. W. Nevin &
Bonita Jean
Harmon and
Randy C. & Paula
A. Zink

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

32. Thomas H.

No objections.

GRANT plaintiffs’

31C. W. Nevin &
Bonita Jean
Harmon

- 11 -

Blake

Motion and DENY
defendant’s Motion

33A.

Dismiss

Dismiss

Dismiss

33B. Triple J of
Ankeny, LLC

The Jacob Moeckly
deed #1 granted an
easement limited to
railroad purposes.

The Jacob Moeckly
deed #1 granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

34A. Sharon Burt,
Karen R.
Huggans, Ronald
Mayner, Beth
Ann Roy & Steve
Roy, and Charles
Hale

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

34B. Sharon Burt,
Karen R.
Huggans, Ronald
Mayner, Beth
Ann Roy & Steve
Roy, and Charles
Hale

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

35. Wilma N.
Adkins

Source deed located
at book 94, page 555
applies; grantor held
an easement and
could only quit claim
to the railroad the
easement it held.

Chain-of-title
indicates that
railroad obtained
fee title.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

36. Merrill U. &
Linda L. Goering

Source deed located
at book 94, page 555
applies; grantor held
an easement and
could only quit claim
to the railroad the
easement it held.

Chain-of-title
indicates that
railroad obtained
fee title.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

37A. Audre M.
Ferrier & B.E.
Ferrier

The Jacob Moeckly
deed #3 granted an
easement limited to
railroad purposes.

The Jacob Moeckly
deed #3 granted a
fee.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

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37B. Audre M.
Ferrier & B.E.
Ferrier

The Jacob Moeckly
deed #3 granted an
easement limited to
railroad purposes.

The Jacob Moeckly
deed #3 granted a
fee.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

38A. James E. &
Patricia R. Brady

The Emma Mason
deed granted an
easement limited to
railroad purposes.

The Emma Mason
deed granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

38B. James E. &
Patricia R. Brady

The Emma Mason
deed granted an
easement limited to
railroad purposes.

The Emma Mason
deed granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39A. Gonner
Farms, LLC

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39B. Gonner
Farms, LLC

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39C. Gonner
Farms, LLC

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39D. Gonner
Farms, LLC

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39E. Gonner
Farms, LLC

No dispute.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39F. Gonner
Farms, LLC

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

39G. Gonner
Farms, LLC

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

39H. Gonner
Farms, LLC

Plaintiff’s property is
adjacent to the
former railroad right-

N.W. 58th Street
frustrates
adjacency

DENY plaintiffs’
Motion and
GRANT

- 13 -

of-way.

requirement.

defendant’s Motion

40. Melvin E. &
Karen Flanders

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

41A. Dale A. &
Kathleen Barrett

The Peter Sutter
deed granted an
easement limited to
railroad purposes.

The Peter Sutter
deed granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

41B. Dale A. &
Kathleen Barrett

The Peter Sutter
deed granted an
easement limited to
railroad purposes.

The Peter Sutter
deed granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

41C. Dale A. &
Kathleen Barrett

The Peter Sutter
deed granted an
easement limited to
railroad purposes.

The Peter Sutter
deed granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

42. Raymond J. &
Diane Conway

The Peter Sutter
deed granted an
easement limited to
railroad purposes.

The Peter Sutter
deed granted an
unlimited
easement.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

43A. Marion
Carlson & Nyra
Carlson

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

43B. Marion
Carlson & Nyra
Carlson

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

The condemnation
is irrelevant. The
court must look at
the deed only, and
the B.D. & R.H
Leggett deed

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

43C. Marion
Carlson & Nyra
Carlson
44A. Michael A. &
Julianne K.
Manock, Jennifer
G. Friestad, Jill
M. Friestad-Tate
& Brian H. Tate

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad

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purposes.

granted the railroad
fee title.

44B. Michael A. &
Julianne K.
Manock, Jennifer
G. Friestad, Jill
M. Friestad-Tate
& Brian H. Tate

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the B.D. & R.H
Leggett deed
granted the railroad
fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

44C. Michael A.
& Julianne K.
Manock, Jennifer
G. Friestad, Jill
M. Friestad-Tate
& Brian H. Tate

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the B.D. & R.H
Leggett deed
granted the railroad
fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

45A. Jan-Rose
Farm, Inc.

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

45B.

Dismiss

Dismiss

Dismiss

45C.

Dismiss

Dismiss

Dismiss

45D.

Dismiss

Dismiss

Dismiss

46A. Robert C. &
Kathleen D.
Houge

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

46B. Robert C. &
Kathleen D.
Houge

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

47. James A.
Harp

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

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48. Young
Investments, LC

Transfer deed and
articles of
organization support
assertion that Young
Investments, LC was
owner of the property
on the date the NITU
was issued.

Plaintiff was not
owner of the
property on the
date the NITU was
issued.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

49. Kenneth D. &
Rosalie A. Lund

Plaintiff’s property is
adjacent to the
former railroad rightof-way.

N.W. 58th Street
frustrates
adjacency
requirement.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

50A. Charles T.
Cownie Trust

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the Robert L.
Clingen deed
granted the railroad
fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

50B. Charles T.
Cownie Trust

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the Robert L.
Clingen deed
granted the railroad
fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

51. Kenneth D. &
Rosalie A. Lund

When a
condemnation was
followed by a deed,
the railroad was
granted an easement
limited to railroad
purposes.

The condemnation
is irrelevant. The
court must look at
the deed only, and
the Mary J. Murry
deed granted the
railroad fee title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

52A. Thomas H.
& Deanna K.
Jones

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

52B. Thomas H.
& Deanna K.

No objections.

GRANT plaintiffs’
Motion and DENY

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Jones

defendant’s Motion

53A. Dale A. &
Denise J.
Petersen

The David Magraw
deed granted an
easement limited to
railroad purposes.

The David Magraw
deed granted fee
title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

53B. Dale A. &
Denise J.
Petersen

The David Magraw
deed granted an
easement limited to
railroad purposes.

The David Magraw
deed granted fee
title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

53C. Dale A. &
Denise J.
Petersen

The David Magraw
deed granted an
easement limited to
railroad purposes.

The David Magraw
deed granted fee
title.

DENY plaintiffs’
Motion and
GRANT
defendant’s Motion

54A. Thomas
Curphey &
Richard Martin
Curphey

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

54B. Thomas
Curphey &
Richard Martin
Curphey

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

55A. Jissom, Inc.

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

55B. Jissom, Inc.

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

55C. Jissom, Inc.

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

55D. Jissom, Inc.

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

55E. Jissom, Inc.

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

55F. Jissom, Inc.

No objections.

GRANT plaintiffs’

- 17 -

Motion and DENY
defendant’s Motion
55G. Jissom, Inc.

IV.

No objections.

GRANT plaintiffs’
Motion and DENY
defendant’s Motion

Parcels that defendant stipulates to an entry of summary judgment or the plaintiff
agrees to dismiss

Defendant concedes that certain parcels adjoin segments of the rail corridor that
Union Pacific operated by condemned easement or by deeded easement limited to
railroad purposes only. Those claimants for whom we grant summary judgment
through stipulation are: 31D, 31E, 31G, 31H, 31I, 32, 34A, 34B, 39A, 39B, 39C, 39D,
39E, 39F, 43C, 52A, 52B, 54A, 54B, 55A, 55B, 55C, 55D, 55E, 55F, and 55G.
Plaintiff has agreed to dismiss some of its claims. We therefore dismiss claims
3, 4, 23, 27B, 28, 43C, 45B, 45C, and 45D.

V.

Parcels that defendant asserts the railroad owned in fee because a deed
followed a condemnation

The parties dispute the railroad’s ownership of those parcels where the railroad
initially acquired its property interest through condemnation, but the owner
subsequently executed a deed transferring an interest in the property to the railroad.
The court finds for defendant for those properties where a deed reciting a fee simple
conveyance followed a condemnation: 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 24, 25A, 25B, 26A, 26B, 26C, 27A, 29, 30, 31A, 31B, 31C, 44A,
44B, 44C, 50A, 50B, and 51.
Under Iowa law, condemnation of land for a railroad right-of-way creates an
easement for railroad purposes. McKinley v. Waterloo Railroad Co., 368 N.W.2d 131,
133-35 (Iowa 1985). The parcels in dispute were condemned; however, the owners
also executed deeds following the condemnations. Plaintiffs characterize the deed as
merely affirming the easement, while defendant characterizes the deeds as property
transfers completely separate and apart from the condemnation.
The 1853 Iowa Code, ch. 31, § 4 states that if a landowner refuses to grant a
right-of-way, the railroad may enter the property and construct tracks after paying the
condemnation award. Pl. Ex. G. But this statute does not require that the parties
record this transaction except for a report by disinterested parties as to the damages.
See Id. Yet the parcels at issue have deeds transferring a property interest in addition
- 18 -

to the Notices of Condemnation. See CSUF Ex. I.1- I.7. It seems more probable that
the parties executed this deed to document a separate transaction than to cement the
terms of the condemnation. The parties did not need to execute any document aside
from the Notice of Condemnation, so we will treat the extra document as a separate
transaction.
In further support of defendant’s argument, the consideration stated in the deeds
at issue is greater than the consideration stated in each corresponding Condemnation
Notice that plaintiff has provided. Id.; D’s Reply at 18 n.5. There could be many
explanations for the increased consideration; but at the very least the discrepancy
supports the conclusion that the deeded transfer and condemnation were not the same
transaction, but rather were two separate transactions.
We reject plaintiffs’ assertion of the “compulsory consent” theory developed in
Preseault II. The court in Preseault II held that, under Vermont law, a railroad with
eminent domain power that acquired land by “consent”– a deed purporting to convey a
fee simple title – took only an easement because the process was compulsory in
nature. Id. at 1536. The court in Hash v. United States did not accept the plaintiffs’
compulsory consent argument because it had not proffered “evidence of any greater
inequality between the buyer and seller” as to the deeds affiliated with condemnation
proceedings versus those that were not. Hash v. United States, 403 F.3d 1308, 1323
(Fed. Cir. 2005). Plaintiffs in this case have similarly failed to proffer evidence of a
greater inequality between the buyers and sellers subject to the condemnation
proceedings versus those who were not. Iowa law specifically allows railroads to
acquire fee title through purchase. See Watkins v. Iowa Cent. R. Co., 98 N.W. 910,
913 (Iowa 1904). There is no reason that we should not give effect to the separately
executed deed.
We now turn our attention to the language in the deeds at issue and find they
granted the railroad a fee simple interest. The John Witner, James Irvine, August
Matter, John Dunlap, B.D. and R.H. Leggett, Robert L. Clingen, and Mary J. Murry
deeds all use identical language in that they “sell and convey” the “described premises.”
CSUF Ex. I.1 - I.7 Under Iowa law, this language conveys a fee simple interest. See
McKinley v. Waterloo Railroad Co., 368 N.W.2d 131, 137 (Iowa 1985).

VI.

Parcels that defendant asserts are unlimited easements or fees based on the
language of the deed

The parties dispute the interest conveyed by certain deeds. Specifically,
defendant asserts that certain parcels’ deeds granted an unlimited easement or a fee,
while plaintiffs assert these deeds granted an easement limited to railroad purposes.
Plaintiffs primarily rely on three cases to support their argument: two Iowa cases and
one Court of Federal Claims case. These cases indicate that the scope of the
- 19 -

easement is determined by the language as it reveals the intent of the grantors. The
cases are discussed below:
In Macerich Real Estate Co. v. City of Ames, the Supreme Court of Iowa held the
deed at issue granted an easement limited to railroad purposes. The deed read,
“[Grantors] hereby sell and convey to the Iowa and Minnesota Railway Company the
right-of-way 100 feet in width for a single or double railroad tracks as the same is
located through the following lands, to-wit: [legal description].” Macerich Real Estate
Co.v. City of Ames, 433 N.W.2d 726, 728-29 (Iowa 1988).
In Estate of Rockafellow v. Lihs,, the Court of Appeals of Iowa found an
easement limited to railroad purposes in the language “[Grantors]. . .give, remise,
release, convey and quitclaim to the said Burlington, Cedar Rapids & Minnesota
Railway Company for the purpose of constructing a railroad thereon and for all
purposes connected with the construction and use of the said railroad the right-of-way
for the said road over and through the described tract. . .” Estate of Rockafellow v.
Lihs, 494 N.W.2d 734, 736 (Iowa App. 1992). The deed also contained a reverter
provision which allowed the easement to revert to the grantor when the railroad stopped
using the easement. Id. at 735.
Defendant argues that the deeds in this case grant unlimited easements
because they do not contain reverter clauses. The Court of Federal Claims in
Jenkins v. United States rejected a similar argument. Jenkins v. United States,
102 Fed. Cl. 598 (Dec. 20, 2011). The court reasoned that the Iowa court in Estate of
Rockafellow had relied on language outside the reverter clause in holding that the
deeds at issue granted an easement for railroad purposes only. It concluded that the
language in the deeds in Jenkins, which contained language similar to the language in
the deeds in the case before us, granted an easement limited to railroad purposes.
We now turn our attention to the language in the specific deeds in this case.
The Robert Channon deed, which applies to parcels 31D and 31E, reads,
“[Grantor] does grant, sell and convey. . .for the purposes of constructing a Railroad
thereon, and for all uses and purposes connected with the use and construction of a
Railroad, the right-of-way for a Railroad over and through the following described tract. .
.”. CSUF Ex. III.1 (emphasis added). Defendant asserts this language granted an
unlimited easement. However, as the emphasized portions of the language indicate,
the grantor intended to grant an easement limited to railroad purposes.
The Jacob Moeckly deed #1, which applies to parcel 33B, reads, “[Grantor]. .
.hereby sell and convey. . .the right-of-way one hundred feet in width for a single or
double railroad track to the same as located through the following lands to-wit. . .”
CSUF Ex. III.5 (emphasis added). Defendant asserts this language granted an
unlimited easement. Not only does the emphasized language indicate an intent to
- 20 -

grant an easement limited to railroad purposes, but this language mirrors the language
in the deed in Macerich Real Estate Co. that the court found to be an easement limited
to railroad purposes.
The Jacob Moeckly deed # 2 located at book 77, page 473 applies to parcels 35
and 36 and reads, “[Grantor]. . .do hereby sell and convey. . .the following described
premises. . .” (emphasis added) Pls. Reply Br., Ex. J. This language clearly grants fee
simple. After the Jacob Moeckly transfer, the railroad (through Martin Sykes) quitclaimed this land to Albert Keep in a deed located at book 85, page 315. Pls. Reply Br.,
Ex. J. Albert Keep platted this property as the Town of Crocker; this plat indicates that
the depot grounds are 135 feet wide, that all of block 6 is “reserved for railway
purposes, including as part of the Depot Grounds,” and consists of “WAREHOUSE
LOTS.” U.S. Ex. 73. Albert Keep then quit-claimed the platted Town of Crocker to the
Western Town Lot Company, specifying that the grantor was “excepting and reserving
them from the Depot grounds of the Des Moines and Minnesota Rail Road, as stated
on and shown on the recorded Plat- of the Town of Crocker; and this right-of-way for
said railroad Fifty (50) feet in width on each side of the centerline as located and
constructed over said land.” Pls. Reply Br., Ex. J. (book 85, page 516). There is no
indication the depot grounds, except for the 50 feet on other side of the centerline, was
granted to the railroad as anything less than fee simple. Furthermore, the language
clearly states that the deed was granting a right-of-way to be used for construction of a
railroad. These two facts support plaintiffs’ argument that the depot grounds were
granted in fee simple and the railroad was granted a right-of-way.
Western Town Lot Company then conveyed its interest through the deed located
at book 94, page 555, which states that Western Town Lot Company conveys to the
railroad’s “successors and assigns forever, all the rights, title, interest, claim, and
demand. . .the following described lot or parcel of land. . .” Def. Mot. Ex. 22. This
transfer of property clearly conveys fee interest, and the two transfers prior to plaintiffs’
ownership are not in dispute. Thus, the chain of title indicates that fee title, except for
the right-of-way indicated in Albert Keep’s quit-claim deed to the Western Town Lot
Company, was ultimately transferred to the railroad. Id. Since the railroad held an
easement limited to railroad purposes and claimants 35 and 36 own their properties in
fee simple, the court grants summary judgment for the plaintiffs.
The Jacob Moeckly deed #3, which applies to parcels 37A and 37B, reads,
“[Grantor]. . .do hereby sell and convey. . .the following described real estate situated in
the County of Polk State of Iowa. . .the right-of-way for railroad purposes, one hundred
feet (100) in width across the following described real estate to-wit. . .” CSUF Ex. III.7
(emphasis added). Defendant asserts that this deed conveyed fee title to the railroad.
Though this deed refers to “real estate,” the subsequent language uses the same
language as the Jacob Moeckly deed #1 and the Macerich Real Estate deed. Given
that the same grantor unequivocally granted an easement in another deed on the same
date, May 20, 1880, we think the grantor had a clear intent to grant an easement limited
to railroad purposes in this second deed.
- 21 -

The Emma Mason deed, which applies to parcels 38A and 38B, reads,
“[Grantor]. . .hereby sell and convey. . .the right-of-way, one hundred feet in width for a
single or double railroad track, as the same is located through the following lands towit...”CSUF Ex. III.8 (emphasis added). Defendant asserts this language granted an
unlimited easement. However, this language mirrors the language of the deed in
Macerich Real Estate and similarly grants an easement limited to railroad purposes.
The Peter Sutter deed, which applied to parcels 41A, 41B, 41C, and 42, reads,
“[Grantor] does grant, sell, and convey. . .for the purpose of constructing a railroad
thereon and for all uses and purposes connected with the construction and use of the
railroad, the right-of-way for a railroad over and through the following described tract,
piece or parcel of land. . .” CSUF Ex. III.11 (emphasis added). Defendant asserts this
language granted an unlimited easement. The emphasized language demonstrates
that the grantor intended to limit the right-of-way’s use to railroad purposes.
The David Magraw deed, which applies to parcels 53A, 53B, and 53C, reads,
“[Grantor] do hereby sell and convey unto the said Des Moines and Minnesota Rail
Road Company the following described premises, situated in the County of Polk and
state of Iowa, to-wit. . .” CSUF III.12 (emphasis added). Defendant asserts that this
language conveys fee title. We agree that the use of “premises” in the deed indicates
an intent to convey fee title and we grant summary judgment for defendant.

VII.

Parcels that defendant disputes adjacency

Iowa Code § 327G.77(1) states, “If a railroad easement is extinguished under
327G.76, the property shall pass to the owners of the adjacent property at the time of
abandonment. If there are different owners on either side, each owner will take to the
center of the right-of-way.” Thus, plaintiffs must establish that their property is adjacent
to the parcels at issue. If there is land separating plaintiffs’ property from the railroad
easement, plaintiffs must proffer evidence that they are still the owner of the underlying
intervening property. See Notelzah v. Destival, 537 N.W.2d 687, 692 (Iowa 1995)
(holding that the holder of a permanent easement located adjacent to a railroad
easement was not an “adjacent” owner entitled to reversion upon abandonment).
Defendant argues that N.W. 58th Street is owned in fee by the County and
prevents reversion to claimants 39G, 39H, 40, 43A, 43B, 45A, 46A, 46B, 47, and 49.
We agree that the County owns fee title to N.W. 58th Street; because this land is
adjacent to the railroad, plaintiffs are not entitled to any reversionary interest in the
parcels.
The intervening highway is N.W. 58th Street; the instruments conveying land are
titled “Easement for Public Highway” and the granting clause states that the grantors
“do hereby sell and convey...for road purposes and for use as a public highway, the
- 22 -

following described premises...” Pl. Mem. Ex. J. Though the deed is entitled
“Easement for Public Highway,” it is significant that there is no reference to a “right-ofway” in the granting clause. Furthermore, the granting clause uses the word
“premises,” indicating an intent to grant fee title. In Lowers v. United States, the
Supreme Court of Iowa held that the deed at issue granted the railroad fee title when it
was titled “Rt. Of Way Deed” and the granting clause conveyed “the following piece or
tract of land.” Lowers, 663 N.W.2d 408, 411 (Iowa 2003). We are faced with a similar
situation here, and agree with the Supreme Court of Iowa that such language granted
the County fee title to the land underlying N.W. 58th Street.

VIII.

Parcels that defendant disputes plaintiff owned on the date the NITU was issued

Defendant objects to ownership of several plaintiffs on the date the NITU was
issued; we already resolved all of those claims, except for claimant 48, on other
grounds. As for claimant 48, defendant asserts that “Young Investments, LC” did not
own the property at issue on the date the NITU was issued.
We grant summary judgment for defendant for claimant 48 because there is no
evidence that “Young Investments, LC” was the owner of this property on the date of
the NITU. The applicable deed conveys the property on December 9, 2012 to “Donald
C. Young, Trustee of the Donald C. Young Trust.” CSUF Ex. 48. Though Donald C.
Young is the registered agent of Young Investments, LC, Id., the owner of the property
at the time the NITU was issued was “Donald C. Young, Trustee of the Donald C.
Young Trust” and not “Young Investments, LC.”

IX.

The Court rejects defendant’s position regarding the nature of the taking arising
from the blocked extinguishment

For those parcels the court finds a taking occurred or to which defendant has
stipulated a taking occurred, defendant contends that it is only liable for a taking of an
easement for railroad purposes. This position was recently rejected by the court in
Macy Elevator, Inc., et al. v. United States, 09-515L (filed June 21, 2012) and we reject
defendant’s position for the same reasons. The Supreme Court in Preseault I indicated
that takings liability would be determined by “what interest petitioners would have
enjoyed under [state] law, in the absence of the ICC’s recent actions.” Preseault I, 494
U.S. at 21. Because of the NITU, a railroad purposes easement no longer exists- the
NITU replaced a railroad purposes easement with an easement authorizing interim
public trail use. But for issuance of the NITU, under Iowa law the easement would have
reverted back to plaintiffs upon cessation of railroad operations, and plaintiffs would
have enjoyed land unencumbered by any easement. See McKinley, 368 N.W.2d 131.
Plaintiffs were deprived of their reversionary rights because of government action, so
the government is liable for a taking of unencumbered property.
- 23 -

CONCLUSION
For the reasons stated above, the court GRANTS plaintiffs’ Motion for
Summary Judgment in part and DENIES plaintiffs’ motion in part; and GRANTS
defendant’s Motion for Summary Judgment in part and DENIES defendant’s
motion in part in accordance with the Court’s chart in section III. We also DISMISS
those claims that plaintiffs have agreed to dismiss.
The parties are ordered to submit a Joint Status Report by September 5, 2012,
on further proceedings.
IT IS SO ORDERED.

s/ Lawrence M. Baskir
LAWRENCE M. BASKIR
Judge

- 24 -