LOVERIDGE et al v. USA

Filing 128

REPORTED ORDER granting in part and denying in part 119 Motion for Reconsideration. Joint status report due by 10/1/2020. Signed by Senior Judge Nancy B. Firestone. (lb) Service on parties made.

In the United States Court of Federal Claims
No. 16-912L
(Filed: September 18, 2020)
PERRY LOVERIDGE, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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RCFC 59(a); RCFC 54(b);
Reconsideration; Rails-to-Trails;
Oregon Law; Adjacency

Thomas S. Stewart, Kansas City, MO, for plaintiffs. Elizabeth G. McCulley, Kansas City,
MO, of counsel.
David W. Gehlert, Environment and Natural Resources Division, United States
Department of Justice, Washington DC, with whom was Jean E. Williams, Deputy
Assistant Attorney General, for defendant.
ORDER GRANTING IN PART AND DENYING IN PART RECONSIDERATION
AND ALLOWING FOR ADDITIONAL LIMITED DISCOVERY
FIRESTONE, Senior Judge.
Pending before the court in this Oregon Trails Act case is the Loveridge plaintiffs’
motion for reconsideration of this court’s June 22, 2020 opinion denying plaintiffs’
motion for partial summary judgment and granting the government’s cross motion
regarding twelve parcels where there is an intervening road between the plaintiffs’
property and the railroad’s right of way. Loveridge v. United States, 149 Fed. Cl. 64, 7277 (2020). The court held that these plaintiffs failed to show under Oregon law “that they
own more than to the centerline of the intervening road, street or pathway identified as a

boundary in their deeds” and thus could not demonstrate that their parcels were adjacent
to the rail corridor, as required to demonstrate a taking. Id. at 77. The plaintiffs now
argue that “[a]lthough the [c]ourt correctly set forth and summarized the fundamental
aspects of the centerline presumption” under Oregon law, the court “applied the
presumption incorrectly on the adjacency and ownership issues.” Pls.’ Mot. at 1, ECF
No. 119. The plaintiffs also contend that regardless of whether the court properly denied
their motion for partial summary judgment, the court improperly granted the
government’s cross motion and should have allowed plaintiffs to obtain additional
evidence of ownership. Id. at 1, 13-14.
As discussed below, plaintiffs’ motion is GRANTED IN PART and DENIED IN
PART. The court denies reconsideration on the ground that the court incorrectly applied
Oregon law in its prior decision based on the record then before the court. However, the
court exercises its discretion to grant the plaintiffs’ alternative request for additional
discovery to establish whether plaintiffs’ parcels are adjacent to the rail corridor.
Following a period of limited discovery, the parties may file renewed motions for
summary judgment on this issue.
I.

BACKGROUND
The facts of this case have been discussed at length in prior opinions, and the court

will only briefly repeat the relevant facts here. The plaintiffs claim they are entitled to
just compensation under the Fifth Amendment in connection with the creation of the
Salmonberry Trail in Oregon over a railroad right of way operated by the Port of
Tillamook Bay (“POTB”). The plaintiffs claim to own property underlying the POTB’s
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railroad right of way and assert that the creation of the Salmonberry Trail gave rise to a
taking of their property. Loveridge, 149 Fed. Cl. at 68.
As relevant here, the plaintiffs argued in their prior motion for partial summary
judgment that they own the underlying fee to the centerline of the railroad right of way
for twelve parcels bounded by a road, street, or other pathway adjacent to the railroad
right of way by operation of the “centerline presumption” and its exception under Oregon
law. Id. at 72. The plaintiffs supported their claims with undisputed evidence of the
conveyance deeds granted by prior landowners to the railroad for the right of way
between 1900 and 1910, as well as documentation regarding the creation of a public road,
street or other pathway adjacent to the railroad’s right of way in the form of resolutions
providing notice to the public about the plan to construct the road and recommendations
that a road be established with damages paid to the abutting landowner. Id. The
government argued in its cross motion that under Oregon law the current landowners who
own property bounded by a road, street, or pathway own only to the centerline of the
road, street, or pathway and cannot claim any ownership of the railroad right of way. Id.
The court denied the plaintiffs’ motion for partial summary judgment on this issue
and granted the government’s cross motion.1 The court first explained that “Oregon
law’s centerline presumption provides that the adjacent landowners on either side of the
road each own the underlying fee to the centerline of the road.” Id. at 75. The court also
recognized an exception to the centerline presumption “where the dedicated road runs

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The court assumed without deciding that the property interest conveyed to create the
intervening road, street, or pathway was an easement. Loveridge, 149 Fed. Cl. at 74, 76-77.
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between two tracts of land under different ownership and the road was wholly dedicated
from only one of the owners’ tracts,” in which case “the entire width of the road transfers
with the abutting property from which it was wholly dedicated.” Id. (quotation and
internal alterations omitted).
Applying Oregon law, the court determined that “plaintiffs have failed to show
that they own more than to the centerline of the intervening road, street or pathway
identified as a boundary in their deeds.” Id. at 77. This was because “the modern deeds
show that the property conveyed to the plaintiffs is bounded by the intervening road,” and
plaintiffs failed to “produce evidence,” such as conveyance instruments, “to show that the
land on the other side of the centerline of the road and directly adjacent to the railroad
right of way” – in other words, the entire land underlying the road – “was also conveyed
to them.” Id. The court explained that the exception to the centerline presumption did
not apply as to the road because the plaintiffs had “presented no evidence of two owners
at the time the roads were created,” and that “[w]ithout this evidence, it must be
presumed that the parcel closest to the railroad right of way is now owned by someone
other than the plaintiffs.” Id. In so holding, the court relied on BHL Properties LLC v.
United States, 135 Fed. Cl. 222, 228-29 (2017), which required the plaintiff to present
evidence that he owned the fee under the intervening road where the language of the
plaintiff’s deed described the road easement as the boundary of the property transferred.
The plaintiffs have now filed a motion for reconsideration of this decision on
adjacency. The plaintiffs argue that the court correctly articulated Oregon law but
misapplied the centerline presumption in this case. Pls.’ Mot. at 5-6. According to the
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plaintiffs, by operation of the centerline presumption and its exception, “two distinct
parcels were created when the railroad’s right-of-way was created,” but “the centerline
presumption was not triggered when the road was constructed . . . because the entire
width of the road was transferred by the abutting landowner on that side.” Id. at 6. “As a
result,” plaintiffs argue, “the ultimate successor to” that abutting landowner – the
plaintiffs and parcels at issue here – “continued to own the underlying fee in the
intervening road and the underlying fee to one-half of the railroad’s right-of-way” under
Oregon law. Id. at 9. The fact that the modern deeds contain describe the road as a
boundary, the plaintiffs argue, does not “negate the necessity to apply the centerline
presumption when the right-of-way was constructed or the exception to the centerline
presumption when the road was constructed.” Pls.’ Reply at 6, ECF No. 124.
Alternatively, the plaintiffs argue that the court should not have granted the
government’s cross motion for summary judgment because if their argument is not
adopted, “there is a factual and legal dispute as to who owns the underlying fee in the
railroad’s right-of-way.” Pls.’ Mot. at 11-12. The plaintiffs contend that “the [c]ourt
should have allowed the [p]laintiffs to obtain chain of title evidence to provide additional
evidence of ownership or the [c]ourt could have reserved the issue for trial . . . .” Pls.’
Reply at 11.
The government responds that reconsideration is inappropriate because plaintiffs
have not raised any new arguments and have failed to demonstrate error in the court’s
decision. Def.’s Resp. at 3-7, ECF No. 123. The government contends that the court
properly followed the rationale of BHL Properties and that, because plaintiffs have had
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discovery and failed to produce evidence to support their claims, the court properly
granted summary judgment in favor of the government on this issue. Id.
Oral argument was held on September 9, 2020.
II.

LEGAL STANDARD
Plaintiffs move for reconsideration of an interlocutory order, which the court

considers under Rule 59(a)(1) and Rule 54(b) of the Rules of the United States Court of
Federal Claims (“RCFC”). “These rules articulate the understanding that courts possess
inherent authority to modify interlocutory orders prior to the entering of final judgment in
a case.” Martin v. United States, 101 Fed. Cl. 664, 670 (2011), aff’d sub nom. Fournier
v. United States, No. 2012-5056, 2012 WL 6839784 (Fed. Cir. Nov. 27, 2012). The
grounds for a court’s exercise of its authority to reconsider include the discovery of new
or different material evidence not presented in an earlier decision, an intervening change
in controlling legal authority, or when a prior decision is clearly incorrect and would
work a manifest injustice. Martin, 101 Fed. Cl. at 670. Reconsideration is “not intended,
however, to give an unhappy litigant an additional chance to sway the court.” Id. at 671
(internal quotation omitted).
The standard for reconsideration of an interlocutory order under RCFC 54(b) and
59(a)(1) has been described as “less rigorous” than the standards applicable to the
reconsideration of final judgments under RCFC 59(e). Martin, 101 Fed. Cl. at 670.
Reconsideration under RCFC 54(b) is available “as justice requires.” L-3 Commc’ns
Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48 (2011). “While the threshold for
reconsideration under RCFC 54(b) is imprecise, it certainly ‘leaves within [its] ambit . . .
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a good deal of space for the [c]ourt’s discretion.’” Martin, 101 Fed. Cl. at 671 (quoting
Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). Asking “what justice requires
amounts to determining, within the [c]ourt’s discretion, whether reconsideration is
necessary under the relevant circumstances.” Farmers Coop. Co. v. United States, 100
Fed. Cl. 579, 581 (2011) (internal quotation omitted).
III.

DISCUSSION
Applying these standards, the court denies the plaintiffs’ motion for

reconsideration on the issue of the court’s application of the centerline presumption and
its exception to the facts of this case, as the record currently exists. The plaintiffs merely
repeat arguments that were already considered by the court, again explaining their theory
regarding the operation of the centerline presumption and its exception on the parcels at
issue. These repeated arguments do not demonstrate that the court’s decision is “clearly
incorrect.” Martin, 101 Fed. Cl. at 670. As in plaintiffs’ prior briefing, plaintiffs’ current
reconsideration motion argues that the court should not have followed the rationale of
BHL Properties in determining whether the plaintiffs owned the entirety of the
intervening road, street or pathway and therefore whether they owned property adjacent
to the rail corridor. Pls.’ Mot. at 10 & n.13, 13 (“The fact is that BHL Properties . . . was
wrongly decided.”). According to plaintiffs, by failing to determine that the plaintiffs
must own the entire underlying road by operation of the exception to the centerline
presumption, the court has impermissibly created a “vacuum of ownership” as to “who
owns one-half of the railroad’s right-of-way on the side of the intervening road.” Pls.’
Reply at 8.
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As explained in its June 22, 2020 decision, however, the court disagrees. It is the
plaintiffs’ burden to prove ownership of land abutting the railroad corridor in order to
demonstrate a taking has occurred. BHL Props., 135 Fed. Cl. at 229; Brooks v. United
States, 138 Fed. Cl. 371, 394 (2018) (“[I]t is plaintiffs’ burden to establish that their
property is adjacent to the railroad right-of-way.”). The court concluded that the
plaintiffs failed to do so, determining based on the record presented to the court that the
court could not “presume that the property underlying the entire road belongs to [the
plaintiffs] because it once belonged to a prior landowner where the modern deeds show
that the property conveyed to the plaintiffs is bounded by the intervening road.”
Loveridge, 149 Fed. Cl. at 77. Following the rationale of BHL Properties, the court held
that plaintiffs failed to produce evidence to support their preferred application of the
centerline presumption and its exception to the properties at issue. Plaintiffs’ mere
disagreement with this court’s reasoning and the court’s reliance on BHL Properties does
not warrant reconsideration of this issue. Res Rei Dev., Inc. v. United States, No. 151256C, 2017 WL 280890, at *1 (Fed. Cl. Jan. 23, 2017) (“[M]ere disagreements with a
court’s reasoning are insufficient to warrant reconsideration under RCFC 59 . . . .”).
However, the court will exercise its discretion in these circumstances, see Farmers
Co-op, 100 Fed. Cl. at 581, to grant reconsideration for the limited purpose of allowing
the plaintiffs to conduct discovery to provide chain of title or other evidence supporting
their arguments that they own property adjacent to the subject rail line. The court
recognizes, as the government argues, that fact discovery has closed in this case and
agrees that it is plaintiffs’ burden to prove adjacency. Def.’s Resp. at 6-7. However, now
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that the court has ruled that the court disagrees with plaintiffs’ presumed application of
Oregon law, the court deems it appropriate to allow the plaintiffs to obtain additional
evidence regarding adjacency for the twelve relevant parcels. The government has not
shown that it would be prejudiced by additional, limited discovery. Moreover, the court
has previously left similar ownership issues open following summary judgment briefing
where the record “lack[ed] any evidence regarding” ownership, but where “it appear[ed]
that such evidence could be produced.” Anderson v. United States, 147 Fed. Cl. 661, 688
& n.26 (2020). The court therefore grants the plaintiffs’ motion for reconsideration on
this limited basis only.
IV.

CONCLUSION
For the foregoing reasons, plaintiffs’ motion for reconsideration, ECF No. 119, is

GRANTED IN PART and DENIED IN PART. The parties shall submit by October 1,
2020 a joint status report proposing a limited discovery schedule in accordance with this
decision.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge

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