Beres v. United States

Nos. 03-785L, 04-1456L, 04-1459L, 04-1463L, 04-1465L, 04-1467L, 04-1469L, 04-

1471L, 04-1472L, 04-1473L

Filed: April 16, 2019

* * * * * * * * * * * * * *

*

WARREN S. BERES, et al., *

* Motion to Dismiss; Motion to Strike;

Plaintiffs, * Cross-Motions for Partial Summary

v. * Judgment; Rails to Trails; Fifth

* Amendment Taking; Subject Matter

UNITED STATES, * Jurisdiction; Deed Interpretation;

* Plat Interpretation; Adverse

Defendant. * Possession; Preemption; RCFC

* * * * * * * * * * * * * * * 56(d).

Cecilia Fex, Ackerson Kauffman Fex, P.C., Washington, D.C., for plaintiffs in D.

Mike Collins, et al. v. United States, Case No. 04-1472L; and Reid Brown, et al. v. United

States, Case No. 04-1473L.

Richard M. Stephens, Stephens & Klinge LLP, Bellevue, WA, for plaintiffs in

Warren S. Beres v. United States, Case No. 03-785L; Clifford F. Schroeder, et al. v.

United States, Case No. 04-1456L; Clarence A. Peterson, et al. v. United States, Case

No. 04-1459L; Raymond Spencer, et al. v. United States, Case No. 04-1463L; Robert C.

Nelson, et al. v. United States, Case No. 04-1465L; and Eugene Morel, et al. v. United

States, Case No. 04-1467L.

Tanya C. Nesbitt, Trial Attorney, Natural Resources Section, Environmental and

Natural Resources Division, United States Department of Justice, Washington, D.C., for

defendant. With her was Jeffrey H. Wood, Acting Assistant Attorney General,

Environment and Natural Resources Division.

OPINION

HORN, J.

At issue in the court’s Opinion is whether ten plaintiffs have an interest in the land

underlying the railroad corridor at issue in D. Mike Collins, et al. v. United States, No. 04-

1472L (Collins), Robert G. Nelson, et al. v. United States, No. 04-1465L (Nelson),

Clarence A. Peterson, et al. v. United States, No. 04-1459L (Peterson), Raymond

Spencer, et al. v. United States, No. 04-1463L (Spencer), and Clifford F. Schroeder, et

al. v. United States, No. 04-1456L (Schroeder). The plaintiffs in the specifically-named,

consolidated cases allege that the United States effected a taking without just

compensation along a 12.45-mile railroad line (the railroad corridor) near the eastern

shore of Lake Sammamish in King County, Washington, when the Surface Transportation

Board issued a Notice of Interim Trail Use (NITU) on September 18, 1998.

The ten specifically-named plaintiffs1 whose interests are addressed in this

Opinion are Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and

Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson

plaintiff Donna Marie Raab Matrinez,2 Collins plaintiffs D. Michael and Vanessa Collins,

Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and Beth

Nelson and the Estate of William F. Hughes.3

The cases were consolidated for case-management purposes under the lead case,

Warren S. Beres v. United States, Case No. 03-785L (Beres). The court previously has

issued multiple Opinions in the specifically-named cases. See Beres v. United States,

104 Fed. Cl. 408, 412 (2012) (discussing Opinions issued in the above-captioned cases)

(Beres V). In Beres V, an Opinion in which the court addressed “the scope of the rights

of way in these multifaceted takings cases, involving numerous plaintiffs, multiple

1 The parties’ filings with the court have referred to sets of married plaintiffs as one

plaintiff, and, in this Opinion, the court likewise refers to sets of married plaintiffs as one

plaintiff.

2 Documents submitted to the court throughout the course of this litigation have referred

to Donna Marie Raab Matrinez as both “Donna Marie Raab Matrinez” and “Donna Marie

Raab Martinez.” Plaintiffs submitted to the court an affidavit signed by Donna Marie Raab

Matrinez, in which Ms. Raab Matrinez signs her last name as “Raab Matrinez,” and both

parties’ cross-motions for partial summary judgment use the last name “Raab Matrinez.”

The court, therefore, will refer to that plaintiff as Donna Marie Raab Matrinez.

3 In defendant’s motion for partial summary judgment, defendant originally moved for

partial summary judgment against Paul and Joanne Spears, plaintiffs in Estate of Pearl

Welch, No. 04-1471L (Welch), as well as against Brian and Mary Conway, Scott and

Sandra DeMers, and Foster and Lemoine Radford, who are plaintiffs in Waverly Hills Club

v. United States, No. 04-1473L (Waverly Hills Club). In defendant’s reply, defendant

states:

The parties have reached a settlement in principal of the remaining claims

in Estate of Welch, No. 04-1471L and Waverly Hills Club, No. 04-1474L,

and dispositive title issues are not present in the remaining three actions:

Beres v. United States, No. 03-785L (Fed. Cl.); Brown v. United States,

No. 04-1473L (Fed. Cl.) [(Brown)]; and Morel v. United States, No. 04-1467

(Fed. Cl.) [(Morel)].

On June 12, 2018, pursuant to the parties’ June 8, 2018 joint stipulations of dismissal, the

court dismissed, with prejudice, the claims of Welch plaintiff Paul and Joanne Spears and

Waverly Hills Club plaintiffs Brian and Mary Conway, Scott and Sandra DeMers, and

Foster and Lemoine Radford, whose claims initially were addressed in defendant’s motion

for partial summary judgment.

2

statutory land grants, different deed types, a prescriptive easement and subsequent

conveyances over a more than one hundred year time period,” the court explained:

One opinion denied defendant’s motion for summary judgment regarding

the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat.

482, 43 U.S.C. § 934 et seq. (repealed in 1976), (the 1875 Act), and its

effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64

Fed. Cl. 403 (2005) [(Beres I)]. This court also issued an Order forwarding

the plaintiffs’ request for certification on relevant questions of state law to

the State of Washington Supreme Court, which the State of Washington

Supreme Court summarily denied. See Schroeder v. United States, 66 Fed.

Cl. 508 (2005) [(Beres II)]. Subsequently, this court issued an opinion,

addressing issues of collateral estoppel regarding former plaintiffs Gerald

L. and Kathryn B. Ray and a number of other plaintiffs in the above

captioned consolidated cases. See Beres, et al. v. United States, 92 Fed.

Cl. 737 (2010) [(Beres III)]. Finally, this court issued an opinion addressing

the question of fee versus easement for a number of the deeds which

conveyed rights of way to the railroads. See Beres, et al. v. United States,

97 Fed. Cl. 757 (2011) [(Beres IV)].

Beres V, 104 Fed. Cl. at 412 (footnote omitted). The facts in the Opinions discussed

above are incorporated into this Opinion, and certain facts relevant to the court’s analysis

are repeated below. Following the numerous previous Opinions issued by this court on a

variety of issues and numerous attempts by the parties at settlement negotiations, the

parties have filed cross-motions for partial summary judgment, as well as a motion to

dismiss and a motion to strike, addressed below in this Opinion.

FINDINGS OF FACT

The following specific facts which bear on the issues currently before the court are

summarized below. In 1998, the Burlington Northern and Santa Fe Railway (Burlington

Northern), a successor-in-interest to the Seattle, Lake Shore and Eastern Railway

Company, sought an exemption to abandon the railroad corridor from the Surface

Transportation Board (STB). Beres V, 104 Fed. Cl. at 417 (citation omitted). On May 13,

1998, the STB granted Burlington Northern an exemption to abandon the railroad corridor.

Id. (citation omitted). On September 16, 1998, the STB authorized The Land Conservancy

of Seattle and King County (TLC) to assume financial responsibility for Burlington

Northern’s right-of-way pursuant to the National Trails System Act, 16 U.S.C. § 1241 et

seq. (1994) (the Trails Act). Beres V, 104 Fed. Cl. at 417 (citation omitted). On September

18, 1998, the STB authorized the issuance of a NITU permitting King County and TLC to

establish a public recreational trail over the railroad right-of-way, pursuant to 16 U.S.C. §

1247(d) (1994), and, subsequently, King County reached an agreement with Burlington

Northern for use of the railroad right-of-way for trail purposes. Beres V, 104 Fed. Cl. at

417. On September 29, 1998, counsel for the TLC indicated to the STB that the parties

had reached a railbanking agreement related to Burlington Northern’s railroad corridor

pursuant to the NITU. Id.

3

Lake Sammamish is located to the west of the parcels owned by the ten plaintiffs

whose interest in the land underlying the railroad corridor currently is at issue in this

Opinion. The railroad corridor is to the east of all ten of the plaintiffs’ parcels, and the East

Lake Sammamish Parkway is to the east of the railroad corridor. The ten plaintiffs’

parcels, therefore, lie between Lake Sammamish and the railroad corridor.

Spencer, Schroeder, and Peterson Plaintiffs

The parties dispute whether the metes and bounds in the deeds conveying land to

Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and

Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff

Donna Marie Raab Matrinez rebut the centerline presumption under Washington State

law. The parties also dispute whether Spencer plaintiffs Raymond and Lael Spencer,

John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and

Kathy Schroeder, and Peterson plaintiff Donna Marie Raab Matrinez have an interest in

the land underlying the railroad corridor.

The deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael

Spencer, John and Carolyn Rossi, and Reid and Susan Brockway all contain references

to tracts of land on an unrecorded plat map of a subdivision of land created by Willis J.

Connell, as indicated in the text of those plaintiffs’ deeds quoted below.4 The pertinent

portion of the deed conveying parcel number 173870-0035 to Spencer plaintiffs Raymond

and Lael Spencer states:

That portion of Government Lot 2[5] in Section 32, Township 25 North,

Range 6 East, in King County, Washington, described as follows:

Beginning at the intersection of a line of said Government Lot 2 with the

southwesterly line of the Northern Pacific Railway right-of-way; thence north

38 degrees 00 minutes 00 seconds east along said right-of-way line 313.29

feet to the true point of beginning; thence continuing north 38 degrees 00

minutes 00 seconds east along said right-of-way line 75.00 feet; thence

north 52 degrees 00 minutes 00 seconds west 230 feet more or less to the

westerly line of said Government Lot 2; thence southwesterly along said

westerly line to a point which bears north 52 degrees 00 minutes 00

4Unlike the deeds conveying land to Spencer plaintiffs Raymond and Lael Spencer, John

and Carolyn Rossi, and Reid and Susan Brockway, the deeds conveying land to

Schroeder plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff Donna Marie

Raab Matrinez do not contain references to the unrecorded plat map of a subdivision

created by Willis J. Connell.

5 When a section of land “contains or borders upon a body of water, which interrupts the

normal quarter-section measurements [of land], all or part of the section may be divided

into irregular portions called ‘government lots.’” See 18 W ILLIAM B. STOEBUCK & JOHN W.

WEAVER, WASHINGTON PRACTICE SERIES: REAL ESTATE § 13.2 (2d ed. 2004 & Supp. 2018).

4

seconds west from the true point of beginning; thence south 52 degrees 00

minutes 00 seconds east 230 feet more or less to the point of beginning;

(ALSO KNOWN AS Tract 8 and the northeasterly 25 feet of Tract 7,

Connell’s Subdivision of Government Lot 2, according to the unrecorded

plat thereof.)

(capitalization in original). The pertinent portion of the deed conveying parcel number

173870-0130 to Spencer plaintiffs John and Carolyn Rossi states:

That portion of Government Lot 2, Section 32, Township 25 North, Range

6 East, W.M., in King County, Washington, described as follows:

Beginning at the intersection of the southerly line of said Government Lot

with the westerly line of the right-of-way of the Northern Pacific Railway

Company and running thence northerly along said westerly line 1238.29

feet to the true point of beginning; thence northerly along said westerly line

62 feet; thence North 52° 00’ 00” West 43 feet; thence northeasterly at right

angles 13 feet; thence North 52° 00’ 00” West to the westerly line of said

Government Lot; thence southerly along said westerly line to a point from

which the true point of beginning bears South 52° 00’ 00” east; thence South

52° 00’ 00” East 210 feet, more or less, to the true point of beginning.

Together with second class shorelands adjoining.

(Also known as Tract 26 and a portion of Tract 27, Willis J. Connell’s

Subdivision, according to the unrecorded plat thereof; together with second

class shorelands adjoining.)

(capitalization in original). Similarly, the pertinent portion of the deed conveying parcel

number 173870-0080 to Spencer plaintiffs Reid and Susan Brockway states:

BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF

GOVERNMENT LOT 2, SECTION 32, TOWNSHIP 25 NORTH, RANGE 6

EAST, W.M., IN KING COUNTY, WASHINGTON, WITH THE WESTERLY

LINE OF THE NORTHERN PACIFIC RAILWAY RIGHT OF WAY; THENCE

ALONG SAID RIGHT OF WAY LINE NORTH 38°00’ EAST 738.29 FEET

TO THE TRUE PLACE OF BEGINNING; THENCE NORTH 38°00’ EAST

75 FEET; THENCE NORTH 52°00’ WEST 225 FEET, MORE OR LESS,

TO THE WESTERLY LINE OF SAID GOVERNMENT LOT 2; THENCE

SOUTHWESTERLY ALONG SAID LOT LINE TO A POINT WHICH BEARS

NORTH 52°00’ WEST FROM THE TRUE PLACE OF BEGINNING;

THENCE SOUTH 52°00’ EAST 220 FEET, MORE OR LESS, TO THE

PLACE OF BEGINNING.

5

(BEING KNOWN AS TRACT 16 AND THE SOUTH HALF OF TRACT 17,

WILLIS J. CONNELL’S SUB-DIVISION, ACCORDING TO THE

UNRECORDED PLAT THEREOF; SUBJECT TO A ROADWAY OVER

THE SOUTHEASTERLY 15 FEET THEREOF; TOGETHER WITH

SECOND CLASS SHORE LANDS RUNNING THEREON.)

(capitalization in original).

The Spencer plaintiffs state, and the plat maps submitted to the court indicate, that

Willis J. Connell created the subdivision in March 1927.6 The 1927 plat map created by

Willis J. Connell is titled “Connell’s Sub. Of Gov Lot 2” and indicates that the subdivision

is located in Section 32, Township 25 North, Range 6 East, and contains thirty-one tracts

of land. The thirty-one tracts are numbered sequentially and are all bordered by

Sammamish Lake to the west. The plat map indicates that thirty-one parcels are not all

the same size, and that the western border runs along the sinuosities of Lake

Sammamish. For example, on the plat map of Willis J. Connell’s subdivision, the distance

between Lake Sammamish and the eastern border of Tract 26, a tract identified in the

deed conveying land to Spencer plaintiffs John and Carolyn Rossi, is listed as 175 feet

wide, while the distance between Lake Sammamish and the eastern border of Tract 16,

a tract identified in the deed conveying land to Spencer plaintiffs Reid and Susan

Brockway, is listed as 225 feet wide. The distance between Lake Sammamish and the

eastern border of Tract 8, a tract identified in the deed conveying land to Spencer plaintiffs

Raymond and Cael Spencer, is listed as 250 feet wide.

To the east of the eastern border of all of the thirty-one parcels is a dotted line,

above which is written “NOR. PAC. RY.” (capitalization in original). To the east of that

dotted line is another line, above which is written “R. of Way Limit,” and to the east of line

6 Plaintiffs submitted to the court two plat maps of the subdivision created by Willis J.

Connell in 1927, the first of which plaintiffs labeled “Connell’s Plat Map ver. 1” and the

second of which plaintiffs labeled “Connell’s Plat Map ver. 2.” The plat map labeled

“Connell’s Plat Map ver. 1” is a large copy of a plat map of the subdivision created by

Willis J. Connell in 1927. The plat map labeled “Connell’s Plat Map ver. 2” appears to be

a smaller, photo-copied, black-and-white copy, sometimes very difficult to read, of the

subdivision created by Willis J. Connell in 1927. Plaintiffs’ cross-motion for partial

summary judgment indicates that the plat map labeled “Connell’s Plat Map ver. 1” and

the plat map labeled “Connell’s Plat Map ver. 2” both were created in March 1927. The

two plat maps are substantially the same, with the same number of tracts, which appear

to have the same dimensions. There do not appear to be any significant differences

between the plat map labeled “Connell’s Plat Map ver. 1” and the plat map labeled

“Connell’s Plat Map ver. 2.” The two versions of the plat map, however, do contain some

minor differences, although the minor differences do not impact the court’s analysis in this

Opinion. The court’s analysis in this Opinion discusses the plat map labeled “Connell’s

Plat Map ver. 1,” and the court’s analysis will note any differences between the plat map

labeled “Connell’s Plat Map ver. 1” and the plat map labeled “Connell’s Plat Map ver. 2”

when relevant.

6

labeled “R. of Way Limit” is yet another line, above which is written “County Road

Margin.”7 (capitalization in original). The number “50.’” is written between the eastern

edge of the parcels and the dotted line labeled “NOR. PAC. RY.,” as well as between the

dotted line labeled “NOR. PAC. RY.” and the line labeled “R. of Way Limit.” (capitalization

in original).

Based on the record before the court, it appears that Willis J. Connell died shortly

after creating the 1927 unrecorded plat map. A probate document concerning the estate

of Willis J. Connell, which is dated January 30, 1928, lists as inventory: “That portion of

Government Lot 2, Section 32, Township 25, North, Range 6 E. W. M., lying West of the

Northern Pacific Railroad right of way, together with the shore lands of the second class

fronting thereon, less the north ten feet previously conveyed.” The probate document

concerning the estate of Willis J. Connell does not explicitly mention the land underlying

the railroad corridor.

Unlike the deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael

Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, the deeds conveying

parcels to Schroeder plaintiffs Clifford and Kathy Schroeder and to Peterson plaintiff

Donna Marie Raab Matrinez do not contain references to the unrecorded plat map of the

subdivision created by Willis J. Connell. The pertinent portion of the deed conveying

parcel number 322506-9144 to Schroeder plaintiffs Clifford and Kathy Schroeder states:

Beginning at a point which is 229.36 feet east and 834.91 feet north of the

southwest corner of said Government Lot 4 and running southwesterly 66

feet along the northwesterly margin of the Northern Pacific Railroad right of

way to the point of beginning; thence north 70° 28’ 04” west to the shore of

Lake Sammamish; thence southwesterly along said shoreline to a line

which is parallel to an 250 feet southwesterly of said initial course of north

70° 28’ 04” west; thence south 70° 28’ 04” east along said parallel line to

the northwesterly margin of the Northern Pacific Railroad right of way;

thence northerly along said margin to the point of beginning. EXCEPT the

northeasterly 100 feet thereof.

(capitalization in original). The pertinent portion of the deed conveying parcel number

322506-9241 to Peterson plaintiff Donna Marie Raab Matrinez states:

That portion of government lot 3 and the northeast quarter of the southwest

quarter of section 32, township 25 north, range 6 east, W.M., in king [sic]

County, Washington, described as follows:

Beginning at the intersection of the westerly line of the Northern Pacific

Railway Company’s right-of-way with the east-west center line of said

section; thence south 38°05’37” west 282.99 feet; thence north 51°54’23”

7The plat map labeled “Connell’s Plat Map ver. 2” contains the words “Redmond Issaquah

Road” above the line marked as “County Road Margin” in the plat map labeled “Connell’s

Plat Map ver. 1.” (capitalization in original).

7

west 190 feet, more or less, to the westerly line of said government lot;

thence northeasterly along said lot line to the northwest corner thereof;

thence easterly along said lot line to the point of beginning . . . .

The “Shorelands” Conveyances and Collins plaintiffs D. Michael and Vanessa

Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs

Robert and Beth Nelson and the Estate of William F. Hughes

The parties have referred to five plaintiffs as the plaintiffs with the “shorelands”

issue. The five plaintiffs whose deeds reference second-class shorelands are Collins

plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam

Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F.

Hughes. Nelson plaintiff the Estate of William F. Hughes claims to own two parcels, the

first of which is parcel number 202506-9071 and is located in Government Lot 1. Nelson

plaintiff the Estate of William F. Hughes’ second parcel is parcel number 202506-9085

and is located in Government Lot 2. The parcels alleged to be owned by Collins plaintiffs

D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam Freedman and

Nelson plaintiffs Robert and Beth Nelson all are located in Government Lot 2.

According to defendant, “[u]nder Washington law, second-class shorelands are

‘shores of a navigable lake or river belonging to the state, not subject to tidal flow, lying

between the line of ordinary high water and the line of navigability, and more than two

miles from the corporate limits of any city.’” (emphasis in original) (quoting W ASH. REV.

CODE § 79.105.060 (2017)).8 Defendant also states that, “[i]n sum, under [Washington]

state law, ‘second-class shorelands’ are defined as lands underwater.” Plaintiffs state that

second-class shorelands “would ordinarily mean they are underwater and adjacent to so-

called ‘uplands,’[9] i.e., dry ground. See, e.g., Albee v. Town of Yarrow Point, 445 P.2d

340, 343 (Wash. 1968). But that is not the case here.” (footnote omitted). The land

underneath a body of water is considered to be the “‘bed,’” which is defined as “the land

under the water beyond the ‘shorelands,’ on tidal water also called the ‘tidelands’ or the

8The current version of the Revised Code of Washington defines first-class shorelands

as:

[S]hores of a navigable lake or river belonging to the state, not subject to

tidal flow, lying between the line of ordinary high water and the line of

navigability, or inner harbor line where established and within or in front of

the corporate limits of any city or within two miles of either side.

See W ASH. REV. CODE § 79.105.060 (2019).

9 The State of Washington Supreme Court has indicated that uplands are dry land

abutting navigable water. See Davidson v. State, 802 P.2d 1374, 1376 (Wash. 1991) (en

banc) (“When plaintiffs purchased their property in 1961, they believed they were

purchasing all of the uplands (dry land bordering the lake) and abutting shorelands

(submerged land out to the State-owned harbor area) encompassing the marina

improvements.”).

8

‘beach.’ In general, then, shorelands lie between uplands and beds.” See 18 W ILLIAM B.

STOEBUCK & JOHN W. WEAVER, W ASHINGTON PRACTICE SERIES: REAL ESTATE § 13.5 (2d ed.

2004 & Supp. 2018).

According to plaintiffs, the “story of these properties begins in the late 19th

century.” On June 13, 1887, Alfred Palmberg executed a deed conveying a 100-foot wide

strip of land to the Seattle, Lake Shore and Eastern Railway Company, on which the

railroad corridor was subsequently constructed.10 The June 13, 1887 deed provided that

“[a]ll riparian and water front rights on Lake Samamish [sic] are hereby expressly

reserved.” In Beres IV, the undersigned determined that the June 13, 1887 deed only

conveyed an easement to the Seattle, Lake Shore and Eastern Railway Company. See

Beres IV, 97 Fed. Cl. at 781-92. According to plaintiffs and defendant, as of June 13,

1887, Alfred Palmberg had not yet acquired second-class shorelands from Washington

State.

On March 30, 1893, Alfred Palmberg executed a deed conveying a parcel of land

in Government Lot 2 and Government Lot 3 to Alonzo C. Stares in exchange for $60.00.

The pertinent portion of the March 30, 1893 deed stated:

Beginning at a point on the line between lots 2 and 3 in section 20 Tp. 25 N

R. 6 E. W.M. 569 64/100 feet south of the NW corner of said lot 3 thence

west in said lot 2 two hundred and twenty one and 58/100 (221 58/100) feet

thence southwesterly along a line drawn at right angels [sic] to the center

line of the Seattle Lake Shore and Eastern Railway Company fifteen and

3/10 feet to the easterly margin of the right of way of said Railway Company

thence southeasterly along said right of way two hundred forty and 4/10

(240 4/10) feet thence east eighty seven (87) feet to the line between said

lots 2 and 3 thence east in said lot 3 fifty five (55 25/100) feet thence north

two hundred (200) feet thence west fifty five and 25/100 (55 25/100) feet to

the place of beginning containing 1 one acre Together with all riparian rights

as reserved from Seattle Lake Shore and Eastern Railway Company

fronting upon and appurtenant to the land hereinbefore described.

(the A. Stares tract). According to plaintiffs and defendant, in 1908, Alfred Palmberg died,

and his wife, Bertha Palmberg, inherited Alfred Palmberg’s property. On September 29,

1914, Bertha Palmberg and King County executed a quitclaim deed conveying to King

County a sixty-foot-wide strip of land in Governments Lots 1 and 2 “lying easterly of and

adjacent to the right of the Northern Pacific Ry.” in exchange for $200.00. Following the

10 The Seattle, Lake Shore and Eastern Railway Company subsequently was acquired

by the Seattle and International Railroad, which subsequently was acquired by the

Northern Pacific Railway Company. See Beres V, 104 Fed. Cl. at 416. In 1970, the

following railway companies merged to form the Burlington Northern Railroad: Northern

Pacific Railway Company; the Great Northern Railway; the Chicago, Burlington and

Quincy Railroad; the Spokane, Portland and Seattle Railway; and other wholly-owned

subsidiaries. Id.

9

legal description of the strip of land being conveyed appeared the words “Right-of-way

Issaquah Redmond Road.”

Bertha Palmberg appears to have died in 1918. Bertha Palmberg’s probate

document listed the following six individuals as children of Bertha Palmberg: Maude

Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, Bert Stares, and Alfred W.

Palmberg, who the parties indicate is the son of Alfred Palmberg and Bertha Palmberg.

Bertha Palmberg’s probate document listed four different parcels, each of which is located

in either Government Lot 1, 2, or 3 and is described as extending to the eastern line of

the railroad corridor. Bertha Palmberg’s probate documents indicated that each of the six

children listed above were to receive an undivided one-sixth interest in the properties

described in the probate document, as well as an undivided one-sixth interest in any other

real or personal property belonging to Bertha Palmberg. According to a title report dated

November 15, 1946, which is discussed below, it appears that Maude Palmberg, Annie

Stangroom, and Alfred W. Palmberg were the children of both Alfred Palmberg and

Bertha Palmberg. Bessie Zengel, Gertie Gorman,11 and Bert Stares appear to be children

of Bertha Palmberg, but appear to have a father other than Alfred Palmberg.

In 1928, after Bertha Palmberg’s estate had been probated, Alfred W. Palmberg

applied to purchase second-class shorelands adjacent to Government Lot 2 from the

State of Washington. Plaintiffs have submitted to the court a report “on title,” which was

completed by the Lawyers & Realtors Title Insurance Company on July 19, 1928, and

was marked as “ENTERED” by the “Commissioner Pub. Lands Office.” (capitalization in

original). The July 19, 1928 title report states that “we have examined the records” and

“find” that Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, Alfred W.

Palmberg, and Bert Stares are tenants in common for “[a]ll of Government Lot 2, EXCEPT

portion described as Parcel ‘A’ and except railroad right of way and except County roads.”

(capitalization in original). Parcel A is defined in the July 19, 1928 title report, and the

legal description of Parcel A appears to match the legal description of the A. Stares tract,

which, as discussed above, was conveyed by Alfred Palmberg, the father of Alfred W.

Palmberg, to Alonzo C. Stares in 1893. The July 19, 1928 title report further states that

the “records do not disclose the location of the railroad right of way with reference to the

meander line[12] or the high water line, however, the deed to the railroad company of the

right of way expressly reserves all riparian and water front rights on Lake Sammamish.”

11The documents submitted to the court refer to what appears to be a single individual

as both Gertie Gorman and Gertie Gorman Hughes. The parties have not established

when Gertie Gorman became Gertie Gorman Hughes. The court uses Gertie Gorman

when the relevant document states Gertie Gorman, and the court uses Gertie Gorman

Hughes when the relevant document states Gertie Gorman Hughes.

12 In 1920, the State of Washington Supreme Court stated:

By the United States government system of surveys, a meander line is run

when a water course or other body of water is the external boundary of the

adjacent land. The line showing the place of the water course of other body

of water and its course, sinuousities [sic], and distance, is called a ‘meander

10

On August 3, 1928, Edward C. Dohm, a “State Field Engineer,” submitted a report

to the State of Washington Commissioner of Public Lands regarding Alfred W. Palmberg’s

application to purchase second-class shorelands. Edward Dohm’s report states:

Sir — I herewith submit the following report on App. No. 8732 by Alfred

Palmberg (A. Palmberg) to purchase shore lands of the second class in

front of parts of lot 2, section 20, township 25 north, range 6 east, on the

east side of Lake Sammamish, in King County.

The applicant claims to be the owner of the abutting upland and states that

there are no improvements on the shore lands.

In proof of ownership has submitted the certificate of title dated July 19,

1928, from Lawyers & Realtors Title Insurance Company, showing that

Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, A.

Palmberg and Bert Stares are holders as tenants in common and as their

separate estates a certain tract of upland located in said lot 2.

This application, together with App. No. 8710 covering the balance of the

frontage bordering on said lot 2 have been given considerable study owing

to the peculiar descriptions which have been used in describing the upland

tracts. We have secured 3 maps from the Northern Pacific Railway

Company and a plat from the Engineer of King County. These plats show

the railway right of way and the county road right of way mentioned in the

descriptions and also show that the line of high water is located outside of

the west line of the Northern Pacific right of way, and also outside the

government meander line.

line.’ The general rule adopted by both federal and state courts is that

meander lines are not run as boundaries of the fractional tracts thus

surveyed, but for the purpose of defining the sinuousities [sic] of the banks

of the streams and other bodies of water and as a means of ascertaining

the acreage of such body of land subject to sale and which is to be paid for

by the purchaser. It has therefore generally been held both by federal and

state courts that such meander lines are for the purpose of showing the

border lines of the streams, but that the water courses themselves

constitute the real boundaries.

Rue v. Oregon & W.R. Co., 186 P. 1074, 1077 (Wash. 1920) (citations omitted); see also

WILLIAM B. STOEBUCK & JOHN W. W EAVER, 18 WASHINGTON PRACTICE SERIES: REAL ESTATE

§ 13.5 (2d ed. 2004 & Supp. 2018) (“‘Meander lines’ are straight-line segments, run by

surveyors, that approximately follow the sinuosities of the edge of a body of water. They

are run in straight-line segments because it would be difficult, if not practically impossible,

for a surveyor to measure and describe the irregular edge of a body of water. . . . A

meander line is not the boundary of uplands that border on a body of water; the actual

shore of the body of water is the boundary.” (footnote omitted)).

11

From our study of the records, the following description is submitted:

All shore lands of the second class owned by the State of

Washington, situate in front of, adjacent to or abutting upon the

following described uplands:

In front of all of lot 2, section 20, township 25 north, range 6 east W.

M., except the following described tract:

[legal description appearing to match the legal description of the A.

Stares tract]

The above portion of said lot 2, not thus excepted. [sic] have a

frontage of 15.81 lineal chains, more or less, measured along

government meander line.

(emphasis in original).

The State of Washington appears to have approved Alfred W. Palmberg’s

application to purchase the second-class shorelands, and Alfred W. Palmberg appears

to then have made installment payments to the State of Washington in exchange for the

second-class shorelands. On February 27, 1940, the State of Washington and Alfred W.

Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, and Bert

Stares, the six heirs of Bertha Palmberg, executed a deed, in which the State of

Washington, in exchange for compensation of $395.25, conveyed:

All shore lands of the second class, owned by the State of Washington,

situate in front of, adjacent to or abutting upon the following described

uplands:

In front of all of lot 2, section 20, township 25 north, range 6 east, W.M.,

except the following described tract:

[legal description appearing to match the legal description of the A. Stares

tract]

The above portions of said lot 2, not thus excepted, have a frontage of 15.81

lineal chains, more or less, measured along the government meander line.

According to plaintiffs’ cross-motion for partial summary judgment in this court, “[i]n

1945—and this is where the ‘shorelands’ misnomer showed up in Plaintiffs’ chain of title—

one of the heirs, Bert Stares (Bertha’s son from another marriage, hence the different last

name), filed a partition action in order to split the remaining Palmberg property between

the six heirs.” Plaintiffs submitted a complaint to this court dated June 22, 1945, which

12

was filed in the Superior Court of the State of Washington for King County and listed Bert

Stares and Gertie Gorman Hughes as plaintiffs. In subsequent documents filed with the

Superior Court of the State of Washington for King County, Gertie Gorman Hughes is

listed as a defendant, without explanation as to why Gertie Gorman Hughes originally

was listed as a plaintiff on the June 22, 1945 complaint. The June 22, 1945 complaint lists

“MAUDE PALMBERG, ANNIE STANGROON [sic], MRS AUTHUR HARRIS, Formerly

EILEEN STANGROON, BESSIE ZENGEL, Deceased and her heirs, and ALFRED [W.]

PALMBERG, Deceased and his heirs” as defendants. (capitalization in original). The

court notes that the complaint appears to incorrectly list Annie Stangroom as Annie

Stangroon. The parties have not indicated who “MRS AUTHUR HARRIS, Formerly

EILEEN STANGROON,” is or her role in the partition action, although, the November 15,

1946 title report, which is discussed below, states that Eileen Stangroon does not have

an interest in the land at issue in the partition action. (capitalization in original).

The June 22, 1945 complaint filed in Washington State court stated that “all of the

parties herein are joint owners of the following described property in King County,

Washington.” The June 22, 1945 complaint then provided:

Those portions of Government Lots 1, 2 and 3 of Section 20, Township 25

North, Range 6 E.W.M., Described as follows:

PARCEL “A”

Beginning at a point on the North line of said Government Lot 1, 630 feet

East of the Northwest corner thereof; then South 900 feet; thence

Southwesterly, at right angles to the right-of-way of the Northern Pacific

Railway Company (formerly the Seattle and International Railway) to the

Northeasterly line of said right-of-way; thence Southeasterly, along said

Northeasterly line to the South line of said Government Lot 1; thence East,

along said South line to the Southeast corner thereof; thence North, along

the East line thereof, to the Northeast corner thereof; thence West, along

the North line, to the point of beginning, EXCEPT County Road.

PARCEL “B”

Beginning at the Northeast corner of said Government Lot 2; thence South,

along the East line thereof, 569.04 feet; thence 221.58 feet; thence

Southwesterly, at right angles, to the right-of-way of the Northern Pacific

Railway Company (formerly the Seattle and International Railway), 15.3

feet, to the Northeasterly line of said right-of-way; thence Northwesterly,

along said Northeasterly line, to the North line of said Government Lot 2;

thence East, along said North line, to the point of beginning, TOGETHER

WITH second class shore lands adjoining, EXCEPT County Road.

PARCEL “C”

Beginning at the Southeast corner of said Government Lot 2; thence North,

along the East line thereof, 110 feet; thence West 87 feet to the

Northeasterly line of the right-of-way of the Northern Pacific Railway

13

Company (formerly the Seattle and International Railway); thence

Southeasterly, along said Northeasterly line, to the point of beginning,

TOGETHER WITH second class shore lands adjoining, EXCEPT County

Road.

(capitalization in original). The June 22, 1945 complaint requested that the Superior Court

of the State of Washington for King County partition the interests of the parties listed in

the complaint.

On April 14, 1948, Gertie Gorman Hughes, who, at that time, was listed as a

defendant, filed with the Superior Court of the State of Washington for King County a

document titled “BILL OF PARTICULARS,” attached to which was a copy of a title report

dated November 19, 1946. (capitalization in original). The attached November 19, 1946

title report described three separate parcels in Government Lots 1 and 2. The legal

description of the first parcel appears to match the legal description of Parcel A in the

June 22, 1945 complaint and states that title was vested in the heirs of Alfred Palmberg

and Bertha Palmberg, except for Maude Palmberg. The November 19, 1946 title report

indicates that Bert Stares acquired the interest of Maude Palmberg in the parcel with a

legal description appearing to match the legal description in Parcel A by quitclaim deed

dated June 7, 1945. The legal description of the second parcel in the November 19, 1946

title report appears to match the legal description of Parcel B in the June 22, 1945

complaint, but further states that the second parcel was “EXCEPT portion if any, in said

railroad right of way.”13 (capitalization in original). According to the November 19, 1946

title report, title to the second parcel, “EXCEPT the second class shorelands,” was vested

in S. L. Stangroom and Annie Stangroom.14 (capitalization in original). The legal

description of the third parcel in the title report appears to match the legal description of

Parcel C in the June 22, 1945 complaint, but further states that the third parcel was

“EXCEPT County Road; TOGETHER with second class shore lands adjoining, EXCEPT

portion if any, in said railroad right of way.” The November 19, 1946 title report stated that

title to the third parcel was vested in an individual, H. N. Coury, “EXCEPT the second

class shore lands,” and indicated that title to the second-class shorelands was not vested

in H. N. Coury. According to the November 19, 1946 title report, the second-class

shorelands in the second and third parcels were vested in undivided one-sixth interests

in the heirs of Alfred W. Palmberg, the heirs of Bessie Zengel, Maude Palmberg, Annie

Stangroom, Gertie Gorman Hughes, and Bert Stares.15 The November 19, 1946 title

report suggested that the Superior Court lacked jurisdiction over the land owned by H. N.

Coury.

13 As noted above, in the June 22, 1945 complaint, Parcel B was described as being

“TOGETHER WITH second class shore lands adjoining, EXCEPT County Road.”

(capitalization in original).

14 S.L. Stangroom and Annie Stangroom appear to have been spouses.

15The November 19, 1946 title report indicated that Alfred W. Palmberg and Bessie

Zengel were deceased at the time the title report was published.

14

According to the Superior Court of the State of Washington for King County’s

January 21, 1949 Findings of Fact and Conclusions of Law, a trial in the partition action

was held in September 1948. The Superior Court’s Findings of Fact and Conclusions of

Law describes three parcels, which are labeled as Parcel A, Parcel B, and Parcel C. The

Findings of Fact and Conclusions of Law described the three parcels as:

In the County of King, State of Washington, those portions of Government

Lots 1 and 2 of Section 20, Township 25 North, Range 6 E.W.M. described

as follows:

PARCEL A:

Beginning at a point on the north line of Government Lot 1, 630 feet east of

the northwest corner thereof; thence South 900 feet; thence southwesterly

at right angles to the right-of-way of the Northern Pacific Railway Company

(formerly the Seattle and International Railway) to the northeasterly line of

said right-of-way; thence southeasterly along said northeasterly line to the

south line of said Government Lot 1; thence east along said south line to

the southeast corner thereof; thence north along the east line thereof to the

northeast corner thereof; thence west along the north line to point of

beginning; thence west along the north line to point of beginning; EXCEPT

County Road;

PARCEL B:

Beginning at the northeast corner of said Government Lot 2; thence south,

along the east line thereof 569.64 feet; thence west 221.58 feet; thence

southwesterly at right angles to the right-of-way of the Northern Pacific

Railway Company (formerly the Seattle and International Railway) 15.3 feet

to the northeasterly line of said right-of-way; thence northwesterly along

said northeasterly line to the north line of said Government Lot 2; thence

east along said North line to the point of beginning; EXCEPT County Road;

TOGETHER with second class shore lands adjoining, EXCEPT portion if

any, in said railroad right of way.

PARCEL C:

The second class shorelands adjoining that certain parcel of land

particularly described as “Beginning at the Southeast corner of said

Government Lot 2; thence North, along the East line thereof, 110 feet;

thence West 87 feet to the Northeasterly line of the right of way of the

Northern Pacific Railway Company (formerly the Seattle and International

Railway); thence Southeasterly, along said Northeasterly line, to the point

of beginning, EXCEPT County Road.” [illegible] any, in said [illegible] right

of way.

15

(strike-through and capitalization in original).

The Superior Court of the State of Washington for King County found that “title to

Parcel B, exclusive of second class shorelands,” was acquired by S. L. Stangroom and

Annie Stangroom. According to the Superior Court’s Findings of Fact and Conclusions of

Law, S.L. Stangroom and Annie Stangroom acquired Parcel B, excluding the second-

class shorelands, “beneficially and not as redemption subject to claims of other heirs of

the decedent Alfred Palmberg and Bertha Palmberg.” The Superior Court’s Findings of

Fact and Conclusions of Law indicate that S. L. Stangroom and Annie Stangroom

acquired Parcel B, excluding the second-class shorelands, after the State of Washington

foreclosed on that portion of Parcel B when Bert Stares failed to pay taxes on the property

described in Parcel B, excluding the property described as second-class shorelands.

Regarding the remaining property that had not been “beneficially” acquired by the

Stangrooms, which the Superior Court of the State of Washington for King County

described as Parcel A, “PARCEL B SHORELANDS,” and Parcel C, the Superior Court

determined that “partition in kind cannot be awarded without prejudice to the right of the

parties hereto.” (capitalization in original). The Superior Court of the State of Washington

for King County concluded that “partition in the proceeds of sale can be had without

prejudicing the rights of the parties hereto,” and the Superior Court appointed Charles W.

Bovee as “referee to perform the duties imposed on referees in partition suits, including

the matter of sale of the property involved being partitioned.”

According to a document titled “REFEREE’S RETURN OF SALE,” which was

dated May 14, 1949, the referee, Charles W. Bovee, held an auction of “Parcel (a),”

“Parcel (b),” and “Parcel (c)” on April 30, 1949.16 (capitalization in original). The Referee’s

Return of Sale does not appear to contain legal descriptions of Parcel (a), Parcel (b), or

Parcel (c), but it appears that the legal descriptions contained Charles W. Bovee’s “Parcel

(a),” “Parcel (b),” and “Parcel (c)” corresponded with the legal descriptions of Parcel A,

Parcel B, and Parcel C in the Superior Court’s Findings of Fact and Conclusions of Law,

which the Superior Court of the State of Washington for King County ordered Charles W.

Bovee to partition.17 Mr. Bovee indicated in the Referee’s Return of Sale that Parcel (a)

was sold to J.J. Simpson for $7,500.00 and “Parcels (b) and (c) in combination” were sold

to J.A. Earley for $6,600.00. On May 20, 1949, the Superior Court of the State of

Washington for King County issued an order confirming Mr. Bovee’s sale and directing

that title to Parcel (a) be vested in J.J. Simpson and that title to Parcels (b) and (c) be

16Although the Superior Court of the State of Washington for King County’s January 21,

1949 Findings of Fact and Conclusions of Law refers to the relevant parcels as “PARCEL

A,” “PARCEL B,” and “PARCEL C,” Charles Bovee’s May 14, 1949 Referee’s Return of

Sale document refers to the relevant parcels as “Parcel (a),” “Parcel (b),” and “Parcel (c).”

(capitalization in original).

17As discussed above, the Superior Court of the State of Washington for King County

determined that title to the land described in Parcel B lying east of the railroad corridor

was vested in S. L. Stangroom and Annie Stangroom and was not subject to partition.

Parcel (b) in Mr. Bovee’s sale, therefore, only included the second-class shorelands

“adjoining” Parcel B.

16

vested in J.A. Earley. As indicated in the Superior Court of Washington’s January 21,

1949 Findings of Fact and Conclusions of Law, Parcel (a) contained land, but not second-

class shorelands, in Government Lot 1, while Parcels (b) and (c) contained “second class

shore lands” in Government Lot 2.

Government Lot 1

On June 8, 1949, Charles W. Bovee, as the court-appointed referee of the partition

action, executed a deed conveying land in Government Lot 1 to J.J. Simpson for

$7,500.00. Specifically, the June 8, 1949 deed stated:

That portion of Government Lot 1, Section 20, Township 25 North, Range

6, E. W. M., King County, Washington, described as follows: Beginning at a

point on the north line of Government Lot 1, 630 feet east of the northwest

corner thereof; thence south 900 feet; thence southwesterly at right angles

to the right of way of Northern Pacific Railway Company (formerly Seattle

and International Railway) to the northeasterly line of the said right of way;

thence southeasterly along said northeasterly line to the south line of said

Government Lot 1; thence east along said south line to the southeast corner

thereof; thence north along the east line thereof to the northeast corner

thereof; thence west along the north line to point of beginning; EXCEPT

County Road.

(capitalization in original). Subsequently, on July 1, 1949, J.J. Simpson and Gertie

Gorman Hughes executed a real estate contract, in which J.J. Simpson exchanged land

with a legal description appearing to match the legal description provided in the June 8,

1949 deed quoted above for $7,500.00. A statutory warranty deed conveying the land

described in the June 8, 1949 real estate contract to Gertie Gorman Hughes was recorded

on November 23, 1962.

According to plaintiffs, after executing the July 1, 1949 real estate contract with J.J.

Simpson, Gertie Gorman Hughes then “sought to purchase the adjoining shorelands from

the State.” A July 28, 1950 document titled “AFFIDAVIT OF ACTUAL OWNERSHIP and

WAIVER OF PREFERENCE RIGHT” signed by Gertie Gorman Hughes and J.J. Simpson

states that J.J. Simpson is the legal and record owner of the property described in the

June 8, 1949 deed quoted above. (capitalization in original). The July 28, 1950 document

also states that J.J. Simpson contracted to sell the land described in the June 8, 1949

deed to Gertie Gorman Hughes via the July 1, 1949 real estate contract, and that J.J.

Simpson “desires to and does waive his preference right to purchase the shore lands in

front of the above-described land, in favor of Gertie Gorman Hughes, who is the applicant

to purchase the same.”

On July 30, 1951, the Department of Public Lands for the State of Washington

issued an order conveying second-class shorelands to Gertie Gorman Hughes for

“$50.00 per lineal chain or a total value of $202.00.” The July 30, 1951 order described

the second-class shorelands as:

17

The shore lands of the second class, owned by the State of Washington,

situate in front of, adjacent to or abutting upon that portion of Lot 1, Section

20, Township 25 North, Range 6 East, W.M., lying southeasterly of a line

running S 45° 35’ W from a point in said Lot 1 which is East 630 feet and

South 900 feet from the northwest corner thereof, with a frontage of 4.04

lineal chains, more or less.

The July 30, 1951 order stated that Gertie Gorman Hughes had “purchased the abutting

uplands,” and that “by virtue of such upland ownership the said Gertie Gorman Hughes

is entitled to the preference right to purchase shore lands abutting upon her upland.”

On April 11, 1956, Gertie Gorman Hughes conveyed land in Government Lot 1,

which was described as bordering “the northeasterly margin of the Issaquah-Redmond

County Road with the south line” of Government Lot 1, to William F. Hughes. On June

14, 1966, Gertie Gorman Hughes executed a deed conveying land in Government Lot 1

to William F. Hughes and Betty Mary Hughes. The legal description of the land in the

June 14, 1966 deed had a substantially similar legal description to the legal description

of the land contained in the June 8, 1949 real estate contract between Gertie Gorman

Hughes and J.J. Simpson. The June 14, 1966 deed further stated that the conveyance

was “LESS” an area of land to the east of “the Issaquah-Redmond County Road” and that

the conveyance was

TOGETHER WITH the second class shorelands conveyed to the above

named grantor from the State of Washington by deed dated September 19,

1951, and recorded in Volume 3098 of Deeds at Page 491 under King

County Auditor’s Receiving No. 4185298.

(capitalization in original).

On March 8, 1978, Gertie Gorman Hughes executed a deed with William John

Hughes and Peggy Anne Hughes. The March 8, 1978 deed conveyed appearing to match

the land described in the June 14, 1966 deed following the word “LESS” and described

as being east of “the Issaquah-Redmond County Road.” (capitalization in original). In

1987, William F. Hughes and Betty Mary Hughes executed a deed conveying a strip of

land in Government Lot 1 to William John Hughes and Peggy Anne Hughes. In 1988, the

Hughes family appears to have implemented a lot line adjustment in Government Lot 1.

On May 26, 1989, William F. Hughes and Betty Mary Hughes executed a deed with the

Kao Family Partnership. In the May 26, 1989 deed, William F. Hughes and Betty Mary

Hughes appear to only convey lands lying to the east of the County Road, and do not

appear to convey the second-class shorelands to the west of the County Road. According

to plaintiffs’ cross-motion for partial summary judgment, “[t]he Hugheses received and

retained all lands in the partition action in Government Lot 1 except for the part later

deeded east of the right of way.”

18

Government Lot 2

Following the Superior Court of the State of Washington for King County’s

confirmation of the sale of Parcels (b) and (c) to J.A. Earley on May 20, 1949 by Charles

W. Bovee, the court-appointed referee, Mr. Bovee and J.A. Earley executed a deed for

$6,600.00 on June 8, 1949. The June 8, 1949 deed described the land being conveyed

as follows:

Those portions of Government Lot 2, Section 20, Township 25 North, Range

6 E. W. M., King County, Washington, described as follows:

The second class shore lands adjoining the following described property:

Beginning at the northeast corner of said Government Lot 2; thence south

along east line thereof 569.64 feet; thence west 221.58 feet; thence

southwesterly at right angles to right of way of the Northern Pacific Railway

Company (formerly the Seattle and International Railway) 15.3 feet to the

northeasterly line of said right of way; thence northwesterly along said

northeasterly line to the north line of said Government Lot 2; thence east

along said north line to the point of beginning; EXCEPT County Road;

EXCEPT portion if any, in said railroad right of way;

The second class shore lands adjoining that certain parcel of land

particularly described as: Beginning at the southeast corner of said

Government Lot 2; thence north, along the east line thereof, 110 feet;

thence west 87 feet to the northeasterly line of the right of way of the

Northern Pacific Railway Company (formerly the Seattle and International

Railway); thence southeasterly, along said northeasterly line, to the point of

beginning, EXCEPT County Road. EXCEPT portion, if any, in said railroad

right of way.

(capitalization in original). On August 11, 1949, Charles W. Bovee filed a petition for a

corrected deed for J.A. Earley in the Superior Court of the State of Washington for King

County, in which Mr. Bovee stated that the legal description in June 8, 1949 deed was

“ambiguous.” On August 12, 1949, the Superior Court of the State of Washington for King

County issued an Order instructing Charles W. Bovee to issue a corrected deed to J.A.

Earley.

Charles W. Bovee executed a corrective deed dated August 11, 1949 to J.A.

Earley. The August 11, 1949 contained the following legal description of the land being

conveyed to J.A. Earley:

All shore lands of the second class formerly owned by the State of

Washington situated in front of, adjacent to or abutting upon government lot

2, section 20, township 25 north, range 6 east, W. M., except the shore

lands in front of the following described tract:

19

[legal description appearing to match the legal description of the A. Stares

tract]

The portions of said government lot 2, not thus excepted, have a frontage

of 15.81 lineal chains, more or less, measured along the government

meander line.

The shorelands hereby conveyed are all the shore lands of the second class

conveyed by that certain deed from the State of Washington to Alfred

Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie

Gorman and Bert States by deed dated February 27, 1940 . . . .

Nelson plaintiff the Estate of William F. Hughes, parcel number 202506-9085,

Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam

Freedman and Nelson plaintiffs Robert and Beth Nelson assert that they all “trace their

ownership of the right of way back to Earley, who purchased the ‘second class

shorelands’ – i.e., the shorelands, uplands, and right of way – in the partition action.” In

each of the deeds conveying land to Nelson plaintiff the Estate of William F. Hughes,

parcel number 202506-9085, Collins plaintiffs D. Michael and Vanessa Collins, Donald

Barrett, and Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson,

the land being conveyed is described as second-class shorelands “adjacent to,”

“abutting,” or “adjoining” Government Lot 2.

Adverse Possession

According to all ten plaintiffs, “in the unlikely event their title failed to convey

ownership underlying the railroad right of way, then the circumstances show they are

entitled to partial summary judgment on the alternative basis that they or their

predecessors adversely possessed the right of way.” The ten plaintiffs each assert that

“evidence shows that under Washington State law they (or their predecessors) satisfied

the elements of adverse possession to the subject properties on or before September 18,

1998,” prior to the issuance of the NITU, and, therefore, obtained an interest in the land

underlying the railroad corridor through adverse possession. Defendant, however,

contends that the plaintiffs “cannot adversely possess the reversionary interest in the

right-of-way.” Defendant has not yet conducted discovery into whether plaintiffs have

adversely possessed the land underlying the railroad corridor. Defendant contends that,

“[i]f the Court allows Plaintiffs’ adverse possession claims to proceed, the United States

requests that the Court deny Plaintiffs’ cross-motion for partial summary judgment

pursuant to RCFC [Rules of the United States Court of Federal Claims] 56(d) in order to

allow the United States adequate time to discover facts necessary to its defense” because

the “current posture of the litigation is such that the parties have not engaged in intensive

factual or expert discovery on the issue of adverse possession.”

20

Procedural History

Defendant filed a motion for partial summary judgment, in which defendant argues

that Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid

and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff

Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald

Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and

the Estate of William F. Hughes do not own the land underlying the railroad corridor.

Regarding plaintiffs’ alternative argument that they obtained an interest in the land

underlying the railroad corridor through adverse possession, defendant asserts that

Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and

Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff

Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald

Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and

the Estate of William F. Hughes cannot adversely possess the land underlying the railroad

corridor because plaintiffs’ adverse possession claims are preempted by the I.C.C.

Termination Act of 1995 (the ICCTA). Defendant also argues that, under Washington

State law, plaintiffs cannot adversely possess a reversionary interest.

Plaintiffs filed a single, combined cross-motion for partial summary judgment, in

which Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid

and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff

Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald

Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and

the Estate of William F. Hughes each assert that they own the land underlying the railroad

corridor in fee through their respective deeds. Alternatively, Spencer plaintiffs Raymond

and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder

plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez,

Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam

Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F.

Hughes argue that, if they do not own the land underlying the railroad corridor based on

their deeds, “then plaintiffs or their predecessors adversely possessed the fee title subject

to the railroad easements before September 18, 1998.” According to plaintiffs’ cross-

motion, the ICCTA does not preempt their alternative adverse possession claims, nor

does Washington State law bar their alternative adverse possession claims. Plaintiffs

attached to their cross-motion for partial summary judgment a declaration signed by Jerry

Broadus, who states that he is “a retired licensed land surveyor and inactive (retired)

attorney in Washington State,” a declaration signed by Vicki E. Orrico, who states that

she is “a lawyer licensed to practice law in the State of Washington,” and a declaration

signed by Charles A. Klinge, who states that he has “been an attorney since 1990 and

admitted to practice in the State of Washington since 1996.”

Subsequently, defendant filed a motion to strike the declarations signed by Mr.

Broadus, Ms. Orrico, and Mr. Klinge. In defendant’s motion to strike, defendant argues

that the court should strike the declarations signed by Mr. Broadus, Ms. Orrico, and Mr.

Klinge because ownership of the land underlying the railroad corridor is a legal question

21

not suitable for expert testimony. Defendant also asserts that plaintiffs violated Rule

26(a)(2) (2018) of the Rules of the United States Court of Federal Claims (RCFC) by

failing to disclose Mr. Broadus, Ms. Orrico, and Mr. Klinge as experts, and that Mr.

Broadus, Ms. Orrico, and Mr. Klinge are not qualified to provide expert testimony.

Plaintiffs filed an opposition to defendant’s motion to strike, in which plaintiffs argue that

“[d]efendant confuses expert statements that are offered to assist the Court in

understanding the evidence with inadmissible legal conclusions.” Plaintiffs contend that,

“[w]ith no trial scheduled, the declarations do not violate RCFC 26(a)(2),” and that Mr.

Broadus, Ms. Orrico, and Mr. Klinge are qualified as expert witnesses. According to

plaintiffs, striking the declarations signed by Mr. Broadus, Ms. Orrico, and Mr. Klinge is

“not an appropriate remedy if any remedy is needed.”

In a footnote in defendant’s motion for partial summary judgment, defendant had

stated that the “United States renews its objection that this Court does not have

jurisdiction to entertain Plaintiffs’ adverse possession claims because they must be

adjudicated in a Washington state proceeding before they can be asserted against the

United States in a takings case.” Defendant’s cross-motion presumably referred to

defendant’s opposition to plaintiffs’ March 17, 2017 motion requesting that the court issue

“an order affirming this Court has jurisdiction to determine whether the land taken by the

United States had been adversely possessed by certain plaintiffs prior to the taking,”

which the court had denied as premature. After receiving the parties’ filings discussed

above, the court issued an Order directing defendant to update and restate its challenge

to this court’s jurisdiction over plaintiffs’ alternative claims involving adverse possession.

Thereafter, defendant filed a motion to dismiss plaintiffs’ claims of acquiring an

interest in the land underlying the railroad corridor through adverse possession pursuant

to RCFC 12(b)(1) (2018) and 12(b)(6) (2018). Defendant argues that the court lacks

jurisdiction over plaintiffs’ adverse possession claims because the claims “are between

private parties and cannot be definitively resolved by this Court.” According to defendant,

“[e]ven if the Court were to find that it has subject matter jurisdiction over Plaintiffs’

adverse possession claims, these claims should still be dismissed under RCFC 12(b)(6)

because the facts Plaintiffs have alleged do not entitle them to a legal remedy.” Plaintiffs

filed an opposition to defendant’s motion to dismiss, in which plaintiffs argued that this

court does have jurisdiction over plaintiffs’ adverse possession claims, to which defendant

filed a reply.

DISCUSSION

“Subject-matter jurisdiction may be challenged at any time by the parties or by the

court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing

Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g

en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also Int’l Elec.

Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The Tucker

Act, 28 U.S.C. § 1491 (2018), grants jurisdiction to this court as follows:

22

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker

Act waives sovereign immunity to allow jurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States, (2) seeking a refund

from a prior payment made to the government, or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);

see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.

Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487

F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,

552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).

“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable

under the Tucker Act. The claim must be one for money damages against the United

States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United

States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116

(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566

F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d

1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that

creates the right to recovery of money damages against the United States.”); Golden v.

United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United

States, the United States Court of Appeals for the Federal Circuit identified three types of

monetary claims for which jurisdiction is lodged in the United States Court of Federal

Claims. The Ontario Power Generation, Inc. court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket’” (quoting

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federal Claims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.

Claims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “particular provision

of law relied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.

23

[392,] 401-02 [1976] (“Where the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation-

does not create a cause of action for money damages unless, as the Court

of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as

mandating compensation by the Federal Government for the damage

sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is

commonly referred to as claims brought under a “money-mandating”

statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see

also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.

of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon “‘can fairly be

interpreted as mandating compensation by the Federal Government.’” United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see

also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.

Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.

Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief

must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.

at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional

provision[] that operate[s] to waive sovereign immunity for claims premised on other

sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the

Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject

matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,

1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);

see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United

States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-

mandating source is “fatal to the court’s jurisdiction under the Tucker Act”); Price v. United

States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66

(2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the complaint

are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson

v. Pardus, 551 U.S. 87, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a

judge must accept as true all of the factual allegations contained in the complaint.” (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema

N. A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,

1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as

true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)));

Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.

2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

24

“Determination of jurisdiction starts with the complaint, which must be well-pleaded

in that it must state the necessary elements of the plaintiff’s claim, independent of any

defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)

(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g

denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.

Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,

713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the

grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing

that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)

(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly,

550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of

law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.

Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel

Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in

part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d

ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations

unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460

U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the

speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting

v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated

in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

In the specifically-named cases, plaintiffs allege that defendant effected a taking

under the Fifth Amendment to the United States Constitution through the operation of the

Trails Act. The Takings Clause of the Fifth Amendment to the United States Constitution

provides in pertinent part: “nor shall private property be taken for public use without just

compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is

to prevent the government from “‘forcing some people alone to bear public burdens which,

in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode

Island, 533 U.S. 606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49

(1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska

2009); see also Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 123-24, reh’g

denied, 439 U.S. 883 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005); E.

Enters. v. Apfel, 524 U.S. 498, 522 (1998); Pumpelly v. Green Bay & Miss. Canal Co., 80

U.S. (13 Wall.) 166, 179 (1871) (citing to principles which establish that “private property

may be taken for public uses when public necessity or utility requires” and that there is a

“clear principle of natural equity that the individual whose property is thus sacrificed must

be indemnified”); Rose Acre Farm, Inc. v. United States, 559 F.3d 1260, 1266 (Fed. Cir.),

reh’g en banc denied (Fed. Cir. 2009), cert. denied, 559 U.S. 935 (2010); Janowsky v.

United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res. Invs., Inc. v. United States, 85

Fed. Cl. 447, 469-70 (2009).

25

“[A] claim for just compensation under the Takings Clause must be brought to the

Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker

Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520 (citing

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984)); see also Acceptance Ins.

Cos. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007); Morris v. United States, 392

F.3d 1372, 1375 (Fed. Cir. 2004) (“Absent an express statutory grant of jurisdiction to the

contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over

takings claims for amounts greater than $10,000.”). The United States Supreme Court

has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within

the jurisdiction of the [United States Court of Federal Claims] to hear and determine.”

Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12 (1990) (Preseault I) (quoting

United States v. Causby, 328 U.S. 256, 267 (1946)); see also Lion Raisins, Inc. v. United

States, 416 F.3d 1356, 1368 (Fed. Cir. 2005); Narramore v. United States, 960 F.2d 1048,

1052 (Fed. Cir. 1992); Perry v. United States, 28 Fed. Cl. 82, 84 (1993).

To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that

the government took a private property interest for public use without just compensation.

See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating

that the “‘classic taking’” is one in which the government directly appropriates private

property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 324 (2002)), cert. denied, 136 S. Ct. 2461 (2016); Adams v. United

States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S. 811 (2005); Arbelaez

v. United States, 94 Fed. Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed. Cl. 157,

162 (2006). “The issue of whether a taking has occurred is a question of law based on

factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78

(Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The government must be operating in its

sovereign rather than in its proprietary capacity when it initiates a taking. See St.

Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed. Cir. 2008).

The United States Court of Appeals for the Federal Circuit has established a two-

part test to determine whether government actions amount to a taking of private property

under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d

1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.

Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal

Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied, 516 U.S. 808

(1995)). A court first determines whether a plaintiff possesses a cognizable property

interest in the subject of the alleged takings. See Casitas Mun. Water Dist. v. United

States, 708 F.3d at 1348; Jackson v. United States, 135 Fed. Cl. 436, 444 (2017) (citation

omitted). Then, the court must determine whether the government action is a

“‘compensable taking of that property interest.’” Huntleigh USA Corp v. United States, 525

F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).

To establish a taking, a plaintiff must have a legally cognizable property interest,

such as the right of possession, use, or disposal of the property. See Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v.

26

Gen. Motors Corp., 323 U.S. 373 (1945)); Piszel v. United States, 833 F.3d 1366, 1374

(Fed. Cir. 2016), cert. denied, 138 S. Ct. 85 (2017); Rogers v. United States, 814 F.3d

1299, 1303 (Fed. Cir. 2015); Casitas Mun. Water Dist. v. United States, 708 F.3d at 1348;

CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed. Cir. 2010), cert. denied,

563 U.S. 989 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.),

reh’g denied and en banc suggestion denied (Fed. Cir. 2000), cert. denied, 532 U.S. 941

(2001). “‘It is axiomatic that only persons with a valid property interest at the time of the

taking are entitled to compensation.’” Am. Pelagic Fishing Co. v. United States, 379 F.3d

at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001), cert.

denied, 353 U.S. 1077 (2002); and citing Cavin v. United States, 956 F.2d 1131, 1134

(Fed. Cir. 1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a

legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing

Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d

1344, 1352 (Fed. Cir. 2003); and M & J Coal Co. v. United States, 47 F.3d at 1154). The

court does not address the second step “without first identifying a cognizable property

interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (citing

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381; and Conti v. United States,

291 F.3d 1334, 1340 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2002), cert. denied, 537

U.S. 1112 (2003)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005); see also

Balagna v. United States, 135 Fed. Cl. 16, 22 (2017), recons. denied, No. 14-21L, 2017

WL 5952123 (Fed. Cl. Dec. 1, 2017). Only if there is to be a next step, “‘after having

identified a valid property interest, the court must determine whether the governmental

action at issue amounted to a compensable taking of that property interest.’” Huntleigh

USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United

States, 379 F.3d at 1372); see also Casitas Mun. Water Dist. v. United States, 708 F.3d

at 1348.

The STB has authority to regulate most railroad lines in the United States. See 49

U.S.C. § 702 (2018). A railroad seeking to abandon any part of its railroad line must either

(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See

49 U.S.C. § 10903 (2018); see also 49 C.F.R. § 1152.50 (2018). “If the STB approves a

standard abandonment application or grants an exemption and the railroad ceases

operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and

state law reversionary property interests, if any, take effect.” Caldwell v. United States,

391 F.3d 1226, 1228-29 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6-8), reh’g en

banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005).

“The Trails Act is designed to preserve railroad rights-of-way by converting them

into recreational trails.” Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir.), reh’g

denied, 684 F.3d 1295 (Fed. Cir. 2012). By operation of the Trails Act, the STB may issue

a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter

into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay

v. United States, 443 F.3d 1368, 1371 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006),

cert. denied, 846 U.S. 1209 (2007). Section 8(d) of the Trails Act, codified at 16 U.S.C.

§ 1247(d), “allows a railroad to negotiate with a state, municipal, or private group (‘the

trail operator’) to assume financial responsibility for operating the railroad right of way as

27

a recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed. Cir.) (citing

Caldwell v. United States, 391 F.3d at 1229), reh’g and reh’g en banc denied (Fed. Cir.

2010). If the railroad and an authorized trail provider18 reach an agreement, the NITU

extends indefinitely, and the corridor is railbanked, with interim trail use permitted. See

49 C.F.R. § 1152.29(d)(1)-(2) (2018) (“The NITU will indicate that interim trail use is

subject to future restoration of rail service . . . . Additionally, the NITU will provide that if

the sponsor intends to terminate interim trail use on all or any portion of the right-of-way

covered by the interim trail use agreement, it must send the [STB] a copy of the NITU and

request that it be vacated on a specific date.”); see also Biery v. United States, 753 F.3d

1279, 1285 (Fed. Cir.) (“If the railroad and the [Surface Transportation] Board reach

agreement, the land underlying the railway may be transferred to a trail operator (e.g.,

state, political subdivision, or qualified private organization) for interim trail use.” (citing

Citizens Against Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir.

2001))), reh’g and reh’g en banc denied (Fed. Cir. 2014); Caldwell v. United States, 57

Fed. Cl. 193, 194 (2003) (“The term railbanking refers to the ‘preservation of railroad

corridor for future rail use,’ while making the corridor available for other activities.”

(quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903 n.1 (8th Cir.

1997))), aff’d, 391 F.3d 1226 (Fed. Cir. 2004), reh’g en banc denied (Fed. Cir.), cert.

denied, 546 U.S. 826 (2005).

When the NITU extends indefinitely and the corridor is railbanked, the STB retains

jurisdiction and abandonment of the railroad corridor is blocked. See 16 U.S.C. § 1247(d)

(“[I]n the case of interim use of any established railroad rights-of-way pursuant to

donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if

such interim use is subject to restoration or reconstruction for railroad purposes, such

interim use 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.”); see also Rasmuson v. United

States, 807 F.3d 1343, 1344 (Fed. Cir. 2015) (“NITUs ‘preserve established railroad

rights-of-way for future reactivation of rail service’ and permit the railroad operator to

cease operation without legally abandoning any ‘rights-of-way for railroad purposes.’”

(quoting 16 U.S.C. § 1247(d))).

As described by the United States Court of Appeals for the Federal Circuit:

Thus, section 8(d) of the Trails Act prevents the operation of state laws that

would otherwise come into effect upon abandonment-property laws that

would “result in extinguishment of easements for railroad purposes and

reversion of rights of way to abutting landowners.” Rail Abandonments-Use

of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591,

1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original

easement granted to the railroad under state property law is not broad

18 The Trails Act indicates that a trail provider may be “a State, political subdivision, or

qualified private organization [that] is prepared to assume full responsibility for

management of such rights-of-way and for any legal liability arising out of such transfer

or use, and for the payment of any and all taxes that may be levied or assessed against

such rights-of-way.” 16 U.S.C. § 1247(d).

28

enough to encompass a recreational trail. See Preseault II, 100 F.3d at

1552; see also Toews [v. United States], 376 F.3d [1371,] at 1376 [(Fed.

Cir.), reh’g denied (Fed. Cir. 2004)].

Caldwell v. United States, 391 F.3d at 1229; see also Rogers v. United States, 814 F.3d

at 1303 (“As we have previously explained in other rails-to-trails cases, a taking, if any,

occurs when, pursuant to the Trails Act, the STB issues a Notice of Interim Trail Use

(‘NITU’) to suspend the abandonment of the rail line by a railroad and preserve it for future

active railroad use.” (citing Barclay v. United States, 443 F.3d at 1373)); Burnett v. United

States, 139 Fed. Cl. 797, 804 (2018) (“A Fifth Amendment takings occurs in rails-to-trails

cases when the government, through the issuance of a CITU [Certificate of Interim Trail

Use] or NITU, destroys an individual’s state law reversionary interest in property

underlying a railroad right-of-way.” (citing Ladd v. United States, 630 F.3d at 1023-24));

BHL Props., LLC v. United States, 135 Fed. Cl. 222, 227-28 (2017) (citing Caldwell v.

United States, 391 F.3d at 1233).

The Federal Circuit has established a three-part inquiry to determine takings

liability in cases involving the conversion of railroad rights of way for recreational trail use

by means of 16 U.S.C. § 1247(d) of the Trails Act, as follows:

(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; and (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). Phrased

differently, the Federal Circuit has also indicated:

the determinative issues for takings liability are (1) who owns the strip of

land involved, specifically, whether the railroad acquired only an easement

or obtained a fee simple estate; (2) if the railroad acquired only an

easement, were the terms of the easement limited to use for railroad

purposes, or did they include future use as a public recreational trail (scope

of the easement); and (3) even if the grant of the railroad’s easement was

broad enough to encompass a recreational trail, had this easement

terminated prior to the alleged taking so that the property owner at the time

held a fee simple unencumbered by the easement (abandonment of the

easement).

Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009) (citing

Preseault II, 100 F.3d at 1533); see also Chi. Coating Co., LLC v. United States, 892 F.3d

1169, 1170 (Fed. Cir. 2018) (citing Ellamae Phillips Co. v. United States, 564 F.3d at

29

1373); Butler v. United States, 139 Fed. Cl. 617, 622 (2018) (quoting Ellamae Phillips Co.

v. United States, 564 F.3d at 1373).

According to the United States Court of Appeals for the Federal Circuit, “[i]t 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), reh’g and reh’g

en banc denied, 646 F.3d 910 (Fed. Cir. 2011); see also Rogers v. United States, 814

F.3d at 1303; Ellamae Phillips Co. v. United States, 564 F.3d at 1373. “It is the law-created

right to own private property, recognized and enforced by the Constitution, legislation,

and common law, that gives the owner an historically rooted expectation of

compensation.” Preseault II, 100 F.3d at 1540. The United States Court of Appeals for

the Federal Circuit in Preseault II also indicated

that power includes the power to preempt state-created property rights,

including the rights to possession of property when railroad easements

terminate. As Justice O’Connor succinctly pointed out in her concurring

opinion in Preseault I, however, having and exercising the power of

preemption is one thing; being free of the Constitutional obligation to pay

just compensation for the state-created rights thus destroyed is another.

Id. at 1537 (citing Preseault I, 494 U.S. at 22).

To determine the nature of the property interest at issue, the court looks to state

law. See Rogers v. United States, 814 F.3d at 1305 (“We analyze the property rights of

the parties in a rails-to-trails case under the relevant state law.”); see also Chi. Coating

Co., LLC v. United States, 892 F.3d at 1170 (citing Bd. of Regents v. Roth, 408 U.S. 564,

577 (1972)). The United States Court of Appeals for the Federal Circuit, interpreting a

takings claim for a railroad right-of-way, stated that, “state law generally creates the

property interest in a railroad right-of-way.” Barclay v. United States, 443 F.3d at 1374

(citing Preseault I, 494 U.S. at 8, 16). In a footnote on the same page, the United States

Court of Appeals for the Federal Circuit repeated, “[i]n Toews v. United States, 376 F.3d

1371 (Fed. Cir. 2004), we reiterated that state law controls the basic issue of whether trail

use is beyond the scope of the right-of-way.” Barclay v. United States, 443 F.3d at 1374

n.4.

The nature of the interest conveyed is determined according to the law of

the state where the conveyance occurred. ‘State law creates and defines

the scope of the reversionary or other real property interests affected by the

ICC’s [Interstate Commerce Commission] action pursuant to Section 208 of

the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’”

Chevy Chase Land Co. of Montgomery Cty. v. United States, 37 Fed. Cl. 545, 565 (1997)

(quoting Preseault I, 494 U.S. at 20) (O’Connor, J., concurring) (citing Ruckelshaus v.

Monsanto Co., 467 U.S. at 1001)), aff’d, 230 F.3d 1375 (Fed. Cir. 1999), reh’g and reh’g

30

en banc denied (Fed. Cir.), cert. denied, 531 U.S. 957 (2000); see also Whispell Foreign

Cars, Inc. v. United States, 97 Fed. Cl. 324, 331 (“Whether an individual has a

compensable private property interest is determined by state law.”), amended after

recons. in part, 100 Fed. Cl. 529 (2011). Moreover, in Ruckelshaus v. Monsanto Co., 467

U.S. at 1001, the Supreme Court stated, “we are mindful of the basic axiom that

‘“[p]roperty interests . . . are not created by the Constitution. Rather, they are created and

their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law.”’” (omission in original) (quoting Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth,

408 U.S. at 577)). In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co.,

429 U.S. 363 (1977), the United States Supreme Court stated that, “[u]nder our federal

system, property ownership is not governed by a general federal law, but rather by the

laws of the several States.” Id. at 378; see also Davies Warehouse Co. v. Bowles, 321

U.S. 144, 155 (1944) (“The great body of law in this country which controls acquisition,

transmission, and transfer of property, and defines the rights of its owners in relation to

the state or to private parties, is found in the statutes and decisions of the state.”). The

parties do not dispute that Washington State law applies to the specifically-named cases.

In the specifically-named cases, all ten plaintiffs assert that plaintiffs are entitled to

compensation because plaintiffs own the land underlying the railroad corridor “by way of

their deeds.” Alternatively, all ten plaintiffs allege that they acquired title to the land

underlying the railroad corridor through adverse possession. Defendant asserts that this

court lacks jurisdiction over plaintiffs’ claims based on plaintiffs’ alternative adverse

possession theory because the claims are “inchoate claim[s]” and involve “unresolved

claims between private parties,” namely the plaintiffs and unidentified third-parties who

allegedly own fee interest in the land underlying the railroad corridor. According to

defendant, the court lacks jurisdiction to resolve such questions involving third parties

because the Tucker Act only provides this court with jurisdiction to resolve claims against

the United States. Defendant argues that, in United States v. Sherwood, 312 U.S. 584

(1941), the United States Supreme Court “found that a Tucker Act claim must be

dismissed if ‘maintenance against private parties is prerequisite to prosecution of the suit

against the United States . . . .’” (omission in original) (quoting United States v. Sherwood,

312 U.S. at 588). In its motion to dismiss, defendant notes that “there may be little case

law on this specific issue.”

Plaintiffs assert that “Plaintiffs could find no case directly on point—likely none exist

because the [defendant’s jurisdictional] argument seems so far-fetched.” All of the

plaintiffs, however, argue that it is the court’s “task” to determine whether plaintiffs

acquired interests in the land underlying the railroad corridor through adverse possession,

as plaintiffs, alternatively, have alleged. Plaintiffs assert that, under Washington State

law, “once the requisite elements of adverse possession are met title is perfected and the

land belongs to the adverse possessor regardless of any judicial proceeding.” (emphasis

in original). Moreover, plaintiffs contend that the court “routinely adjudicates” whether a

plaintiff has a compensable interest in a takings case. Plaintiffs argue:

31

[W]hen construing a deed or other documents in a Trails Act takings case

and consequently deciding whether or not the plaintiff was a bona fide

owner on the date of take, the Court will have reviewed evidence and

necessarily decided that other successors in interest to the original owner

of the right of way—i.e., absent third parties—did or did not own the right of

way. And more specifically to this point, a plaintiff in this Court need not first

file a quiet title action in a state court to have a state court confirm title as

between other, potential third-party owners of the property underlying a

railroad easement before the plaintiff can file a takings case in this Court or

before this Court can rule on the merits of ownership.

All ten plaintiffs also contend that their “claims are against the United States for taking

their property interests that were vested in them as of September 1998—they are not

making any claim against a purported absent third party because the title vested in them

either by deeds or via adverse possession long ago.” (emphasis in original). According to

plaintiffs, defendant misconstrues United States v. Sherwood, 312 U.S. 584, because, in

the specifically-named cases, “there is no requirement that there first be a quiet title suit

brought elsewhere in a state court to perfect or vest title in Plaintiffs.”

In United States v. Sherwood, Jacob Sherwood had recovered a judgment in a

New York State court against Frederick Kaiser in the amount of $5,567.22. United States

v. Sherwood, 312 U.S. at 585. The New York State court’s order “authorized” Jacob

Sherwood “to bring suit against the Government to recover for breach of its contract with

Kaiser for the construction of a post office building.” See id. Subsequently, Jacob

Sherwood filed a lawsuit against the United States and Frederick Kaiser in the United

States District Court for the Eastern District of New York. See id. In discussing the Tucker

Act jurisdiction of the United States Court of Claims, a predecessor court to this court, the

United States Supreme Court stated that the Court of Claims’ jurisdiction

is confined to the rendition of money judgments in suits brought for that relief

against the United States . . . and if the relief sought is against others than

the United States the suit as to them must be ignored as beyond the

jurisdiction of the court. . . . [O]r if its maintenance against private parties is

prerequisite to prosecution of the suit against the United States the suit must

be dismissed.

Id. at 588 (citations omitted). The United States Supreme Court stated that the lawsuit

filed by Jacob Sherwood could not have been “maintained in the Court of Claims because

that court is without jurisdiction of any suit brought against private parties and because

adjudication of the right or capacity of respondent [Jacob Sherwood] to proceed with the

suit upon the contract of the judgment debtor [Frederick Kaiser] with the United States is

prerequisite to any recovery upon the Government contract.” Id.

The cases before this court, however, differ from the circumstances in Sherwood,

because, under Washington State law, plaintiffs did not, prior to filing suit in this court,

need to bring actions against third-parties in order to have obtained interests in the land

32

underlying the railroad corridor through adverse possession. The State of Washington

Supreme Court has stated:

The doctrine of adverse possession permits a party to acquire legal title to

another’s land by possessing the property for at least 10 years in a manner

that is “(1) open and notorious, (2) actual and uninterrupted, (3) exclusive,

and (4) hostile.” ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757, 774 P.2d

6 (1989) (citing Chaplin v. Sanders, 100 Wash. 2d 853, 857, 676 P.2d 431

(1984)). Title vests automatically in the adverse possessor if all the

elements are fulfilled throughout the statutory period. El Cerrito, Inc. v.

Ryndak, 60 Wash. 2d 847, 855, 376 P.2d 528 (1962) (“When real property

has been held by adverse possession for 10 years, such possession ripens

into an original title.”).

Gorman v. City of Woodinville, 283 P.3d 1082, 1083 (Wash. 2012) (en banc); see also

Ofuasia v. Smurr, 392 P.3d 1148, 1157 (Wash. Ct. App. 2017) (“[T]itle automatically vests

in an adverse possession claimant when the requirements of adverse possession have

been satisfied for 10 years.” (citing Gorman v. City of Woodinville, 283 P.3d at 1083)).

Thus, “[w]hen a person adversely possesses real property for 10 years, such possession

ripens into an original title.” Nickell v. Southview Homeowners Ass’n, 271 P.3d 973, 978

(Wash. Ct. App.) (citing El Cerrito, Inc. v. Ryndak, 376 P.2d at 532), review denied, 282

P.3d 96 (Wash. 2012); see also Smale v. Noretep, 208 P.3d 1180, 1182 (Wash. Ct. App.

2009) (“If the Smales adversely possessed the portion of the disputed property that

originally fell within their fence line, their possession ripened into original title after 10

years of possession.” (citing El Cerrito, Inc. v. Ryndak, 376 P.2d at 532)). The filing of a

quiet title action in a Washington State court is not a “prerequisite” to obtaining title

through adverse possession under Washington State law. See Gorman v. City of

Woodinville, 283 P.3d at 1085; see also Ofuasia v. Smurr, 392 P.3d at 1157 (stating that

a “new title holder need not file suit to perfect” an interest in land obtained through adverse

possession (citing Gorman v. City of Woodinville, 283 P.3d at 1085)); Halverson v. City

of Bellevue, 704 P.2d 1232, 1234 (Wash. Ct. App. 1985) (stating that Washington State

law “is clear that title is acquired by adverse possession upon passage of the 10-year

period,” not when a quiet title action is filed, and that a “quiet title action merely confirm[s]

that title to the land had passed” (citations omitted)).

In the specifically-named cases, the ten plaintiffs did not need to file lawsuits

against private parties in order to establish ownership interests in the land underlying the

railroad corridor through adverse possession. Under Washington State law, if plaintiffs

had satisfied the elements for adverse possession by September 18, 1998, when the

NITU was issued in the specifically-named cases, plaintiffs could have had vested

interests in the land underlying the railroad corridor when the alleged taking occurred.

Washington State law does not require that the plaintiffs in these cases maintain a quiet

title action in Washington State court in order to acquire or confirm their interests in the

land underlying the railroad corridor, as title in the allegedly adversely possessed land

automatically would vest by operation of law when all of the requisite elements for adverse

possession were satisfied, which plaintiffs contend occurred prior to the issuance of the

33

September 18, 1998 NITU. Plaintiffs’ claims in the specifically-named cases generally

also differ from a quiet title action, which plaintiffs could have filed in Washington State

court or federal district court against the alleged third parties. In this court, none of the

plaintiffs currently addressed in this Opinion have requested, as they could have done in

Washington State court or in federal district court, that, based on plaintiffs’ adverse

possession claims, the court independently “confirm[]” that title has passed to the

plaintiffs. See Gorman v. City of Woodinville, 283 P.3d at 1084 (internal quotation marks

and citation omitted). Nor are any of the plaintiffs seeking to “obtain paper title in the form

of a court judgment that he has acquired title.” See 17 W ILLIAM B. STOEBUCK & JOHN W.

WEAVER, W ASHINGTON PRACTICE SERIES: REAL ESTATE § 8.6 (2d ed. 2004 & Supp. 2018).19

Rather, plaintiffs seek to establish as an alternative theory that the actions of the United

States resulted in a taking of their property in violation of the Fifth Amendment to the

United States Constitution.

Moreover, plaintiffs’ claims in the specifically-named cases are against the United

States, not “unidentified third parties who are not before the Court,” as defendant argues.

None of plaintiffs’ claims seek remedies from the alleged third parties not before the court.

The ten plaintiffs in the specifically-named cases allege that the United States effected a

taking without just compensation along the railroad corridor, when the Surface

Transportation Board issued a NITU on September 18, 1998, and that plaintiffs had

acquired, prior to September 18, 1998, interests in the land underlying the railroad either

through their deeds or through adverse possession. In order to assess the validity of the

plaintiffs’ takings claims, the court must determine whether each of the plaintiffs had an

interest in the property allegedly taken by the government. See Casitas Mun. Water Dist.

v. United States, 708 F.3d at 1348 (stating that, “[f]irst, the court determines whether the

claimant has identified a cognizable Fifth Amendment property interest that is asserted to

be the subject of the taking”). Plaintiffs’ alleged takings claims may involve considering

whether plaintiffs had satisfied the elements of adverse possession under Washington

State law as of September 18, 1998, but consideration of such evidence does not alter

the nature of plaintiffs’ claims, which seek to acquire compensation for an alleged taking

by the government. Indeed, in a situation involving a title dispute in a takings claim

between a plaintiff and the United States, the United States Court of Claims stated:

If plaintiff had brought suit to be restored possession of her land, perhaps

the issue would be different and 28 U.S.C. 2409a might require this suit be

brought in the district court. But this is not a suit for possession. It is a just

compensation action and thereby within the historical jurisdiction of the

court. To hold otherwise would allow defendant in its answer to determine

the situs of an action by alleging governmental ownership. This we decline

to do.

19The State of Washington Supreme Court has referred to William B. Stoebuck as a “well

regarded commentator.” See Presbytery of Seattle v. King Cty., 787 P.2d 907, 913

(Wash.) (en banc), cert. denied, 498 U.S. 911 (1990); see also Bain v. Metro. Mortg. Grp.,

Inc., 285 P.3d 34, 40 (Wash. 2012) (en banc) (discussing the statements of “learned

commentators William Stoebuck and John Weaver”).

34

Bourgeois v. United States, 212 Ct. Cl. 32, 35 n.1, 545 F.2d 727, 729 n.1 (Ct. Cl. 1976);

see also Katzin v. United States, 908 F.3d 1350, 1366 (Fed. Cir. 2018) (Newman, J.,

dissenting) (“When title is disputed as to property purportedly taken, and the remedy

sought is just compensation, the Court of Federal Claims has authority to decide title.”).

Thus, because plaintiffs’ claims do not require the filing of a quiet title suit under

Washington State law in order to establish their interest in the land, and because all of

the plaintiffs assert takings claims against the United States for monetary compensation,

this court concludes it does have jurisdiction to address plaintiffs’ alternative claims of

acquiring interests also through adverse possession. The court, therefore, denies

defendant’s motion to dismiss under RCFC 12(b)(1) based on defendant’s position

regarding plaintiffs’ alternative adverse possession theory.

Although the parties have not cited, and there does not appear to be case law

directly addressing the court’s jurisdiction over the specific type of adverse possession

claims presented in this case and discussed above, the court notes that, in determining

whether the ten plaintiffs acquired an interest in the land underlying the railroad corridor

through the deeds in their chains of title, the court will be required to analyze deeds

between plaintiffs and third-parties not currently before the court, as well as deeds

between plaintiffs’ predecessors-in-title and judicial proceedings involving the land at

issue in the specifically-named cases. The court notes that members of this court routinely

have examined chains of title, which involve numerous transactions involving interests in

land executed by third parties not before the court, to determine whether plaintiffs possess

a valid interest in land allegedly taken by the government. See, e.g., the undersigned’s

decision in Lucier, et al. v. United States, 138 Fed. Cl. 423, 464-66, recons. denied, 138

Fed. Cl. 793 (2018).

Additionally, in defendant’s motion to dismiss, defendant briefly argues, “[i]n each

complaint, Plaintiffs alleged that they had obtained their property interest by a deed,” and

that, “[e]ven if the Court were to find that it has subject matter jurisdiction over Plaintiffs’

adverse possession claims, these claims should still be dismissed under RCFC 12(b)(6)

because the facts Plaintiffs have alleged do not entitle them to a legal remedy.” According

to plaintiffs, however, “[e]ach complaint alleges that Plaintiffs possess property interests

and are silent as to the method of acquiring the interest,” and that plaintiffs are not

required to allege in the complaints “the method by which ownership was obtained.” In

the complaints of Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi,

and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder,

Peterson plaintiff Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa

Collins, Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and

Beth Nelson and the Estate of William F. Hughes, each plaintiff simply “claims” an

“interest” in the “real property” which plaintiffs allege has been taken by the government.

None of the plaintiffs’ complaints assert acquisition of a property interest in the land

underlying the railroad corridor solely through a deed, but, rather, assert that the plaintiffs

did have an interest in the land underlying the railroad corridor as of the date of the alleged

taking by the government. The complaints plausibly allege that each plaintiff had an

35

interest in the land allegedly taken by the government, and the court denies defendant’s

motion to dismiss pursuant to RCFC 12(b)(6).

The parties also have crossed-moved for partial summary judgment. RCFC 56

(2018) is similar to Rule 56 of the Federal Rules of Civil Procedure in language and effect.

Both rules provide that “[t]he court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” RCFC 56(a); Fed. R. Civ. P. 56(a) (2018); see also Alabama

v. North Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 (1999);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes v. S. H. Kress &

Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d at 1286; Ladd v. United

States, 713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349

(Fed. Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012);

Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed.

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620

F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United

States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010),

cert. denied, 564 U.S. 1004 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d

1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375,

1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283

(Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden

v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.

Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.

Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.

United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,

317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United

States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610

(2011).

A fact is material if it will make a difference in the result of a case under the

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott

Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;

Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.

Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or

unnecessary factual disputes do not preclude the entry of summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.

372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.

2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79

Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,

216 (1958), cert. denied, 361 U.S. 843 (1959), reh’g denied, 361 U.S. 941 (1960).

When reaching a summary judgment determination, the judge’s function is not to

weigh the evidence and determine the truth of the case presented, but to determine

whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.

at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United

36

States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts

do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,

118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,

455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99

Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick

Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);

Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.

2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether

the evidence presents a disagreement sufficient to require submission to fact finding, or

whether the issues presented are so one-sided that one party must prevail as a matter of

law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of

Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc

suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When

the record could not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust

v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,

586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),

reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d

1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.

Cir. 1996). In such cases, there is no need for the parties to undertake the time and

expense of a trial, and the moving party should prevail without further proceedings.

In appropriate cases, summary judgment:

saves the expense and time of a full trial when it is unnecessary. When the

material facts are adequately developed in the motion papers, a full trial is

useless. “Useless” in this context means that more evidence than is already

available in connection with the motion for summary judgment could not

reasonably be expected to change the result.

Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,

(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)) (citation omitted), vacated on other

grounds, 970 F.2d 890 (Fed. Cir. 1992); see also Vivid Techs., Inc. v. Am. Sci. & Eng’g,

Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to

deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can

ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).

Summary judgment, however, will not be granted if “the dispute about a material

fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see

also Premier Office Complex of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed.

Cir. 2019); Chi. Coating Co., LLC v. United States, 892 F.3d at 1169; Long Island Sav.

Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g and reh’g en banc

denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly & Co. v. Barr Labs.,

Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2001), cert.

37

denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1353 (Fed.

Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451; Stephan v. United

States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Grp., Inc. v. United States,

101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party produces sufficient

evidence to raise a question as to the outcome of the case, then the motion for summary

judgment should be denied. Any doubt over factual issues must be resolved in favor of

the party opposing summary judgment, to whom the benefit of all presumptions and

inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United States, 588 F.3d

1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 (2010); Dethmers Mfg. Co. v.

Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001), reh’g and reh’g en banc

denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S. 957 (2003); Monon Corp.

v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v. Fedders Corp., 145 F.3d 1461,

1463 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir. 1998); see also

Am. Pelagic Co. v. United States, 379 F.3d at 1371 (citing Helifix Ltd. v. Blok-Lok, Ltd.,

208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R. Hodges Trust v. United States, 111

Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl. at 611 (“‘The evidence of the

nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’”

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas Mun. Water Dist. v. United States,

543 F.3d at 1283; and Lathan Co. Inc. v. United States, 20 Cl. Ct. 122, 125 (1990))); see

also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-67; Vivid Techs., Inc. v. Am.

Sci. & Eng’g, Inc., 200 F.3d at 807. “However, once a moving party satisfies its initial

burden, mere allegations of a genuine issue of material fact without supporting evidence

will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States,

584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

at 247-48.

The initial burden on the party moving for summary judgment to produce evidence

showing the absence of a genuine issue of material fact may be discharged if the moving

party can demonstrate that there is an absence of evidence to support the nonmoving

party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also FastShip,

LLC v. United States, 892 F.3d 1298, 1307 (Fed. Cir. 2018); Riley & Ephriam Constr. Co.

v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown Operations Int’l Ltd. v.

Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed. Cir. 2002); Trilogy

Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741 (Fed. Cir.) (quoting

Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994), reh’g denied and en

banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en banc suggestion

declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1569 (Fed. Cir.

1997); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807; RQ Squared, LLC v.

United States, 119 Fed. Cl. 751, 757-58 (2015), subsequent determination, 129 Fed. Cl.

742 (2017), aff’d, 708 F. App’x 685 (Fed. Cir. 2018). If the moving party makes such a

showing, the burden shifts to the nonmoving party to demonstrate that a genuine dispute

regarding a material fact exists by presenting evidence which establishes the existence

of an element essential to its case upon which it bears the burden of proof. See Celotex

Corp. v. Catrett, 477 U.S. at 322; see also Wavetronix LLC v. EIS Elec. Integrated Sys.,

38

573 F.3d 1343, 1354 (Fed. Cir. 2009); Long Island Sav. Bank, FSB v. United States, 503

F.3d at 1244; Fla. Power & Light Co. v. United States, 375 F.3d 1119, 1124 (Fed. Cir.

2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed. Cir. 2001); Am.

Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed. Cir. 2000); Vivid Techs., Inc. v.

Am. Sci. & Eng’g, Inc., 200 F.3d at 807; Rasmuson v. United States, 109 Fed. Cl. 267,

271 (2013). However, “a non-movant is required to provide opposing evidence under Rule

56(e) only if the moving party has provided evidence sufficient, if unopposed, to prevail

as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir.

2006).

Even if both parties argue in favor of summary judgment and allege an absence of

genuine issues of material fact, the court is not relieved of its responsibility to determine

the appropriateness of summary disposition in a particular case, and it does not follow

that summary judgment should be granted to one side or the other. See Prineville Sawmill

Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.

v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,

L.P. v. United States, 586 F.3d at 968-69; B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d

587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,

1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir.

2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v. United States, 159 F.3d

553, 561 (Fed. Cir. 1998) (“The fact that both the parties have moved for summary

judgment does not mean that the court must grant summary judgment to one party or the

other.”), reh’g denied and en banc suggestion declined (Fed. Cir. 1999); Allstate Ins. Co.

v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs., Inc., 118 F.3d

1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401

F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 (1969); Rogers v. United

States, 90 Fed. Cl. 418, 427 (2009), subsequent determination, 93 Fed. Cl. 607 (2010),

aff’d, 814 F.3d 1299 (2015); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387

(2009), aff’d, 615 F.3d 1378 (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir.

2010), cert. denied, 564 U.S. 1004 (2011); St. Christopher Assocs., L.P. v. United States,

75 Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.

United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion

on its own merits, taking care to draw all reasonable inferences against the party whose

motion is under consideration, or, otherwise stated, in favor of the non-moving party. See

First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g

en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d

1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed. Cir.),

reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);

Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.

United States, 71 Fed. Cl. 114, 119 (2006).

“Questions of law are particularly appropriate for summary judgment.” Oenga v.

United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d

1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]

because no material facts were disputed, many being stipulated, and the only disputed

issues were issues of law. Moreover, on each issue one party or the other is entitled to

39

judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d

1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law

may be decided on motion for summary judgment.”).

Motion to Strike

In the specifically-named cases, the parties dispute whether the court should strike

the declarations signed by Jerry Broadus, Vicki Orrico, and Charles Klinge, which were

submitted to the court by plaintiffs. In the declaration signed by Jerry Broadus, Mr.

Broadus states that he is a retired land surveyor and attorney who was retained by

Richard Stephens, counsel of record for the Nelson, Peterson, Schroeder, and Spencer

plaintiffs. Jerry Broadus states that Richard Stephens “has asked me to review the

property descriptions on three Statutory Warranty Deeds” relevant to Spencer plaintiffs

Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway. In

the declaration signed by Vicki Orrico, Ms. Orrico states that she is an attorney who

“investigated the chain of title” and “the right of way adjacent” to the parcels owned by

Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam

Freedman. In the declaration signed by Charles Klinge, Mr. Klinge states that he is an

attorney at Stephens & Klinge LLP, the law firm at which counsel of record for the Nelson,

Peterson, Schroeder, and Spencer plaintiffs, Richard Stephens, is a partner,20 making

him an odd, and potentially conflicted, choice as the declarant. Mr. Klinge states that his

declaration “addresses the chain of title for” Spencer plaintiffs Raymond and Lael

Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs

Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, and Nelson

plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes. Plaintiffs also

attached a multitude of documents pertaining to the plaintiffs’ chains of title to the

declarations signed by Mr. Klinge, Mr. Broadus, and Ms. Orrico.

In defendant’s motion to strike, defendant argues that the declaration signed by

Charles Klinge offers inadmissible legal opinion because Mr. Klinge “opines on the chain

[sic] of titles for the Spencer, Rossi, Brockway, Matrinez, Schroeder, Nelson, and Hughes

properties” and “draws conclusions based on what he believes the documents to show.”

Defendant contends that the court should strike the declaration signed by Jerry Broadus

because Mr. Broadus offers inadmissible legal opinion by opining on whether the metes

and bounds in certain plaintiffs’ deeds “precisely or carefully define the parcels.”

According to defendant, the declaration signed by Vicki Orrico offers inadmissible legal

opinion because Ms. Orrico “forms legal conclusions based on the deeds, legal

description and boundary line agreements for the Freedman, Barrett and Collins

Plaintiffs.” Defendant also contends that the declarations signed by Mr. Klinge, Mr.

20 According to Stephens & Klinge LLP’s website, Stephens & Klinge LLP only consists

of two attorneys, Mr. Stephens and Mr. Klinge. See Attorneys, STEPHENS & KLINGE LLP

(last visited Apr. 16, 2019), https://www.gskonline.com/attorneys.

40

Broadus, and Ms. Orrico violate RCFC 26(a)(2) (2018)21 because “none of the attorney-

declarants were identified as expert witness under RCFC 26(a)(2),” and “Plaintiffs failed

to provide the substantive information required in an expert report.” According to

defendant, the court should strike the declarations because Mr. Klinge, Mr. Broadus, and

Ms. Orrico are not qualified as expert witnesses on deed interpretation, and the three

declarations do not meet the requirements of RCFC 56(c)(4) because the declarations

are not based on personal knowledge. Alternatively, “the United States requests that the

Court require Plaintiffs to file expert reports, grant the United States the opportunity to

depose Plaintiffs’ experts, and provide time to obtain its own experts.”

In its motion to strike and reply in support of that motion, defendant has not moved

to strike the exhibits to the declarations signed by Mr. Klinge, Mr. Broadus, and Ms. Orrico.

In plaintiffs’ opposition to defendant’s motion to strike, plaintiffs state that defendant “has

agreed informally with Plaintiffs that even if the Court were to strike all the testimony, the

exhibits that are attached to the declarations should not be stricken,” a statement which

defendant has not disputed. Plaintiffs, however, argue:

[A]s statements offered to assist with determining the intent of the parties,

or to explain how boundaries are determined or referred to in Washington

by the title and survey professionals, or even to opine on whether parties to

historical documents used language which evinced their intent to include or

exclude the right of way, the declarants’ statements are not impermissible

“legal opinions” as Defendant argues.

According to plaintiffs, plaintiffs’ alleged failure to disclose Mr. Klinge, Mr. Broadus, and

Ms. Orrico as expert witnesses prior to filing plaintiffs’ cross-motion for partial summary

judgment did not violate RCFC 26(a)(2) by allegedly failing to timely disclose the expert

witnesses because RCFC 26(a)(2) is not implicated, as, according to plaintiffs, there is

“no trial is scheduled and no deadline has passed to trigger the requirements under RCFC

26(a)(2).” Plaintiffs also argue that Mr. Klinge, Mr. Broadus, and Ms. Orrico are qualified

expert witnesses, and that the declarations signed by Mr. Klinge, Mr. Broadus, and Ms.

Orrico are based on personal knowledge because Mr. Klinge, Mr. Broadus, and Ms.

Orrico reviewed the documents relevant to the transactions discussed in the declarations.

Additionally, plaintiffs cite Katzin v. United States, 120 Fed. Cl. 199 (2015), and argue

that “Katzin teaches an opinion is not objectionable just because it embraces an ultimate

issue.”

RCFC 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose

a motion [for summary judgment] must be made on personal knowledge, present facts

that would be admissible in evidence, and show that the affiant or declarant is competent

to testify on the matters stated.” RCFC 56(c)(4). The court will not consider a declaration

purporting to support a motion for summary judgment if the declaration contains

statements that are legal conclusions, not based on the declarant’s personal knowledge,

21RCFC 26(a)(2)(A) states that “a party must disclose to the other parties the identity of

any witness it may use at trial to present evidence under Federal Rule of Evidence 702,

703, or 705.” See RCFC 26(a)(2)(A).

41

or would otherwise be inadmissible as evidence. See Found. of Human Understanding v.

United States, 88 Fed. Cl. 203, 228 n.19 (2009), aff’d, 614 F.3d 1383 (Fed. Cir. 2010);

see also Adarbe v. United States, 58 Fed. Cl. 707, 712 n.1 (2003).

Rule 702 (2019) of the Federal Rules of Evidence (FRE)22 governs the admissibility

of testimony by expert witnesses. FRE 702 states:

A witness who is qualified[23] as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;

and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

FRE 702. Under FRE 702, the court must, as an initial matter, determine whether the

expert testimony being offered will assist the trier of fact to understand evidence or

determine facts in issue. See Stobie Creek Invs., LLC v. United States, 81 Fed. Cl. 358,

360 (2008) (citing FRE 702). “Expert testimony that testifies about what the law is or

directs the finder of fact how to apply law to facts does not ‘assist the trier of fact to

understand the evidence or to determine a fact in issue’ within the contemplation of Fed.

R. Evid. 702.” Id. “In general, federal courts have found expert testimony on issues of law,

either giving a legal conclusion or discussing the legal implications of evidence, to be

22 The proceedings of the United States Court of Federal Claims “shall be in accordance

with such rules of practice and procedure (other than the rules of evidence) as the Court

of Federal Claims may prescribe and in accordance with the Federal Rules of Evidence.”

28 U.S.C. § 2503 (2018).

23 “Determinations as to the qualification of experts and the admissibility of their testimony,

including an evaluation of whether the opinion is reliable and relevant, are generally within

the discretion of a trial judge, and are reviewed for an abuse of discretion, only overturned

if manifestly erroneous.” Piscopo v. Sec’y of Health & Human Servs., 66 Fed. Cl. 49, 53

(2005) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)); see also

Hitkansut LLC v. United States, 127 Fed. Cl. 101, 107 (2016) (stating that a trial judge is

responsible for determining “whether an expert witness is qualified or whether his or her

opinions constitute admissible evidence” (citing Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 592 (1993))).

42

inadmissible.” Sparton Corp. v. United States, 77 Fed. Cl. 1, 7 (2007) (citations omitted);

see also Katzin v. United States, 120 Fed. Cl. at 211 (“Expert testimony that amounts to

an opinion of law is strongly disfavored by federal courts.” (citing Sparton Corp. v. United

States, 77 Fed. Cl. at 7)); Thomas v. United States, 106 Fed. Cl. 467, 476 n.4 (2012)

(disregarding an expert witness’ affidavit when the affiant outlined his opinion as to

whether a plaintiff owned a reversionary interest under Tennessee law). Although, under

FRE 704(a) (2019), opinion testimony is not objectionable merely because the opinion

embraces an ultimate issue, expert testimony embracing an ultimate issue that does not

assist the court in understanding the evidence before the court or in resolving factual

issues is inadmissible. See Katzin v. United States, 120 Fed. Cl. at 212 (citing Stobie

Creek Invs., LLC v. United States, 81 Fed. Cl. at 363); see also Sparton Corp. v. United

States, 77 Fed. Cl. at 8 (“Although Fed. R. Evid. 704 was amended so as not to preclude

expert testimony on the ultimate issue, the amendment was not intended to allow an

expert to advise the court on what outcome to reach.” (footnote omitted)). “The admission

of expert testimony is within the discretion of the trial court.” Banks v. United States, 94

Fed. Cl. 68, 73 (2010) (citing Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356,

1360 (Fed. Cir. 2008), reh’g denied (Fed. Cir. 2009)).

In the forty-seven page declaration signed by Charles Klinge, Mr. Klinge discusses

the transactions in the alleged chains of title for Spencer plaintiffs Raymond and Lael

Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs

Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, and Nelson

plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes. Charles Klinge

offers his commentary and thoughts on the transactions in the chains of title and

discusses and concludes whether he believes certain transactions included the land

underlying the railroad corridor. For example, Mr. Klinge states that “William F. Hughes

and Betty Mary Hughes in September 1998 retained ownership of all of the uplands” and

that “William F. Hughes and Betty Mary Hughes are the successors to the original private

property owner, Alfred Palmberg, who granted the Right of Way Deed to Seattle Lake

Shore & Eastern Railway.” Charles Klinge also makes conclusory, legal statements such

as, “in the context of this description, the reference to ‘second class shorelands’ was a

shorthand reference describing the uplands southwesterly of the northeasterly line of the

railroad right of way plus the submerged lakebed out to the line of navigability.” (emphasis

in original). It is within the province of the court to interpret the documents available to

determine the intent of the parties’ entering into the transactions relevant to the plaintiffs’

chains of title. At this stage of the proceedings, without an opportunity for defendant to

carefully review and examine the statements made by Mr. Klinge, Ms. Orrico, and Mr.

Broadus, each of whom offered declarations with what appears to be an offer of expert

conclusions, as discussed further below, the court does not accept the untested

declarations submitted by plaintiffs. The court is concerned about relying on the

potentially self-serving conclusions of only one party. Therefore, at this stage of the

proceedings, the court concludes that the untested declarations do not contain

information that will assist the court to fairly understand and reach conclusions about the

transactions and conveyances in the chains of title for Spencer plaintiffs Raymond and

Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder

plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez,

43

and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes. The

declaration submitted by Charles Klinge is struck by the court.

In the declaration signed by Vicki Orrico, Ms. Orrico, an attorney, states that she

reviewed the chains of title of Collins plaintiffs D. Michael and Vanessa Collins, Donald

Barrett, Howard and Pam Freedman. As in the declaration signed by Charles Klinge, Vicki

Orrico’s declaration discusses the transactions in the chains of title allegedly held by

Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam

Freedman. Ms. Orrico provides commentary on transactions within the plaintiffs’ chains

of title and interprets the similarities or differences between the legal descriptions in the

plaintiffs’ deeds. Deed interpretation ultimately is within the province of the court. As in

the case of the declaration submitted by Mr. Klinge, the defendant has not had an

opportunity to do its own analysis and allow the court to review submissions from both

parties. Moreover, the declaration signed by Vicki Orrico does not contain specialized

information that at this stage of the litigation should be used to finally evaluate plaintiffs’

interests in the specifically-named cases. Based on the reasoning discussed above, the

court also strikes the declaration signed by Vicki Orrico.

In the declaration signed by Jerry Broadus, Mr. Broadus reviewed the legal

descriptions in the deeds allegedly conveying title to Spencer plaintiffs Raymond and Lael

Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, as well as the 1927

unrecorded plat map of a subdivision created by Willis J. Connell. Mr. Broadus describes

what he believes the metes and bounds in the deeds and 1927 unrecorded plat map

indicate and concludes that “[t]hose calls do not clearly exclude the abutting fee

underlying the railroad easement.” Mr. Broadus also asserts, without citation to any

authority, that “[i]t is common knowledge among surveyors that metes and bounds

descriptions were regularly added to unrecorded plat descriptions at the insistence of the

tax assessors, to ‘improve’ the legal descriptions in case the assessor needed to use

them for tax foreclosures.” In his declaration, Mr. Broadus discusses what he asserts is

the “[m]odern practice” of surveying and states that his understanding is that “[m]odern

practice prefers to adopt a mathematically weighted mean bearing between the westerly

directions of the north and south lines of the section, but this has hardly been the practice

in the past.” Mr. Broadus then discusses the partition action in the Superior Court for the

State of Washington for King County and states that, “[i]n my opinion,” the deed executed

by the court-appointed referee, Charles Bovee, and J.A. Earley included the land

underlying the railroad corridor. Whether the deeds conveying land to Spencer plaintiffs

Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway

included the land underlying the railroad corridor is a question for the court to decide

under Washington State law, including consideration of the decision in Roeder Co. v.

Burlington Northern, Inc., 716 P.2d 855 (Wash.) (en banc), recons. denied (Wash. 1986)

(en banc). Mr. Broadus’ untested speculative, generalized “common knowledge” and

discussion of “[m]odern practice” should not be relied on by the court, and does not assist

the court to evaluate the particular deeds and plat maps submitted by the parties. The

court, utilizing the guidance of Washington State law, must ascertain the intent of the

parties when the transaction was entered into by the parties. Consequently, based on the

reasoning discussed above, at this time Jerry Broadus’ declaration does not assist the

44

court in interpreting the evidence submitted to the court, and the court strikes the

declaration signed by Jerry Broadus. Although the court is not resistant to understanding

how each side to the dispute at issue interprets the underlying documents, without

information or testimony or joint stipulations submitted by both sides, the court will not

accept the plaintiffs’ proffered declarations concerning interpretations of plaintiffs’ chains

of title.

Plaintiffs’ reliance on Katzin v. United States, 120 Fed. Cl. 199, is misplaced.

United States Court of Federal Claims judges are not bound by each other. See Park

Props. Assocs., L.P. v. United States, 120 Fed. Cl. 787, 790 (2015) (quoting Sotera Def.

Solutions, Inc. v. United States, 118 Fed. Cl. 237, 258 (2014)), aff’d, 677 F. App’x 676

(Fed. Cir. 2017). Moreover, the facts and circumstances of each case will direct whether

a submitted expert declaration will assist the court. In Katzin v. United States, a judge of

the United States Court of Federal Claims was addressing a takings case concerning

property located in Puerto Rico. See Katzin v. United States, 120 Fed. Cl. at 217. The

Katzin court stated that resolution of the property issues before that judge would “depend

upon interpretations of century-old land records and maps, some of which are in Spanish.”

See id. The Katzin plaintiffs provided an expert declaration discussing the Puerto Rican

property records, which were cited by the Katzin plaintiffs and contained certain

documents that were in Spanish. See id. at 212. The judge in Katzin declined to strike the

expert declaration because the judge in Katzin concluded that the expert’s “opinion is

derived from a ‘review of a century’s worth of deed boundary descriptions and transfer

information,’” and “assist[ed] the court in understanding the foundational facts at issue in

the case.” See id. at 212 (quoting the Katzin plaintiffs’ brief). The defendant in Katzin also

had been able to depose the expert in Katzin. See id. at 212 n.16.

In conclusion, the untested, oversimplified, conclusory declarations signed by

Charles Klinge, Vicki Orrico, and Jerry Broadus in the specifically-named cases do not

assist the court at this stage of the proceedings to reach a fair and just decision.

Defendant in the specifically-named cases has not been provided an expert report or an

opportunity to depose Mr. Klinge, Ms. Orrico, or Mr. Broadus. Moreover, unlike the

documents in Katzin, the documents in the record before this court are in English and do

not require translation by an expert. The court, therefore, strikes the declaration signed

by Mr. Klinge, the declaration signed by Ms. Orrico, and the declaration signed by Mr.

Broadus. The parties have not moved, however, to strike the exhibits and chains of titles

attached to and cited in the declarations signed by Charles Klinge, Vicki Orrico, and Jerry

Broadus. The exhibits attached to the declarations signed by Mr. Klinge, Ms. Orrico, and

Mr. Broadus, which defendant has not moved to strike, do include information on the

plaintiffs’ chains of title and additional documents perhaps relevant to the analysis of

whether plaintiffs own the lands underlying the railroad corridor in their particular cases.

These documents may be relevant at later stages of the proceedings and both parties will

have an opportunity to address their significance to finally resolve the cases.

45

Contract Interpretation Under Washington State Law

The parties also dispute whether Spencer plaintiffs Raymond and Lael Spencer,

John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and

Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, Collins plaintiffs D.

Michael and Vanessa Collins, Donald Barrett, Howard and Pam Freedman and Nelson

plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes had an interest in

the land underlying the railroad corridor when the alleged taking occurred. As an initial

matter, the parties dispute whether under Washington State law the court may review

extrinsic evidence when interpreting the deeds conveying land to plaintiffs in the

specifically-named cases. Defendant argues that interpretation of a deed can potentially

be a mixed question of fact and law, but, that, “[w]here, as here, there is no dispute as to

the language included in a deed or plat, interpretation of either document is a pure

question of law that can be resolved on summary judgment.” (citing Hanson Indus., Inc.

v. Cty. of Spokane, 58 P.3d 910, 913 (Wash. Ct. App. 2002)). Defendant asserts that

“surrounding circumstances and other extrinsic evidence are to be used to determine the

meaning of specific words and terms used and not to show an intention independent of

the instrument or to vary, contradict or modify the written word.” (internal quotation marks

and citations omitted) (emphasis in original). According to plaintiffs, under Washington

State law, the court may review extrinsic evidence regardless of whether the deed is

ambiguous. Plaintiffs argue that Washington State has adopted the “context rule,” which

plaintiffs assert “‘recognizes that the intent of the ... [sic] parties cannot be interpreted

without examining the context surrounding the making of the contract’ or deed, including

extrinsic evidence.” (emphasis and omission in original) (quoting Pelly v. Panasyuk, 413

P.3d 619, 629 (Wash. Ct. App. 2018)). Plaintiffs contend that this court “must consider

the context of the transaction because the parties’ intent cannot be determined without

it.”

According to the State of Washington Supreme Court, under Washington State

law, “when construing a deed, the intent of the parties is of paramount importance and

the court’s duty to ascertain and enforce.” Brown v. State, 924 P.2d 908, 911 (Wash.) (en

banc), recons. denied (Wash. 1996); see also Kershaw Sunnyside Ranches, Inc. v.

Yakima Interurban Lines Ass’n, 126 P.3d 16, 25-26 (Wash. 2006) (en banc); Kitsap Cty.

v. Kitsap Rifle & Revolver Club, 337 P.3d 328, 345 (Wash. Ct. App. 2014) (“Our goal is

to discover and give effect to the parties’ intent as expressed in the deed.” (citing Harris

v. Ski Park Farms, Inc., 844 P.2d 1006 (Wash.) (en banc), recons. denied (Wash. 1993),

cert. denied, 510 U.S. 1047 (1994))), amended on recons. denial (2015), review denied,

352 P.3d 187 (Wash. 2015); Newport Yacht Basin Ass’n of Condo. Owners v. Supreme

Nw., Inc., 277 P.3d 18, 24 (Wash. Ct. App. 2012) (citation omitted); Wash. State Grange

v. Brandt, 148 P.3d 1069, 1073 (Wash. Ct. App. 2006) (“Generally, when construing a

deed, the intent of the parties is of paramount importance and courts must ascertain and

enforce such intent.”), review denied, 171 P.3d 1054 (Wash. 2007).

The State of Washington Supreme Court also has applied the “context rule” to the

interpretation of “railroad deeds.” As indicated by the State of Washington Supreme Court

in Harris v. Ski Park Farms, Inc. when analyzing deeds that involved the conveyance of

46

land underlying a railroad corridor, “[t]his court has adopted the ‘context rule’ which

succinctly stated is that ‘extrinsic evidence is admissible as to the entire circumstances

under which [a] contract [is] made, as an aid in ascertaining the parties’ intent’, specifically

adopting the Restatement (Second) of Contracts §§ 212, 214(c) (1981).” Harris v. Ski

Park Farms, Inc., 844 P.2d at 1014 (footnote omitted) (alterations in original); see also

Haggart v. United States, 108 Fed. Cl. 70, 78 (2012) (“When faced with railroad deeds,

Washington courts have been more accepting of extrinsic evidence, regularly relying on

it to interpret the conveyance language, even when no ambiguity is cited.” (citing Kershaw

Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 126 P.3d at 25 n.12; and

Harris v. Ski Park Farms, Inc., 844 P.2d at 1014)), recons. denied, 131 Fed. Cl. 628

(2017); Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 126 P.3d at

26 n.15 (“Even absent ambiguity, this court, unlike in statutory or contract construction

cases, has consistently examined the circumstances surrounding the transfer and

subsequent conduct of the parties, regardless of ambiguity, if helpful in ascertaining the

parties’ intent, which is of paramount importance.” (internal quotation marks and citation

omitted)); Brown v. State, 924 P.2d at 912 (“In addition to the language of the deed, we

will also look at the circumstances surrounding the deed’s execution and the subsequent

conduct of the parties.”); cf. Newport Yacht Basin Ass’n of Condo. Owners v. Supreme

Nw., Inc., 277 P.3d at 27 (noting that the context rule applies to a “discrete subset of

cases interpreting railroad right-of-way interests”). Citing to Brown v. State and Harris v.

Ski Park Farms, Inc., the State of Washington Court of Appeals in Roeder Co. v. K & E

Moving & Storage Co., Inc., noted that “the [State of Washington] Supreme Court has

recently ruled that, in light of Washington’s adoption of the ‘context rule’ for contracts,

courts may look to extrinsic evidence along with the deed itself to determine the parties’

intent.” Roeder Co. v. K & E Moving & Storage Co., Inc., 4 P.3d 839, 841 n.6 (Wash. Ct.

App.) (emphasis in original) (citing Brown v. State, 924 P.2d at 912; and Harris v. Ski Park

Farms, Inc., 844 P.2d at 1014), recons. denied, (Wash. Ct. App. 2000), review denied, 16

P.3d 1264 (Wash. 2001)). Analyzing the language of deeds involving a conveyance of

land underlying a railroad corridor first, but then referring to the context surrounding the

execution of the deeds is reasonable, given the age of deeds and the sometimes stilted

language employed therein. See Haggart v. United States, 108 Fed. Cl. at 78-79 (citing

the undersigned’s decision in Longnecker Prop., et al. v. United States, 105 Fed. Cl. 393,

409 (2012)). Indeed, the undersigned in previous cases applied the context rule when

interpreting deeds involving the conveyance of land underlying a railroad corridor in

Washington State. See Lucier, et al. v. United States, 138 Fed. Cl. at 449-51; Longnecker

Prop., et al. v. United States, 105 Fed. Cl. at 409-10; Beres V, 104 Fed. Cl. at 427-31.

The plaintiffs’ deeds in the specifically-named cases, however, are not “railroad

deeds” involving a conveyance of land to a railroad company. The plaintiffs’ chains of title

involve deeds concerning private conveyances of land, which are governed by

Washington State’s rules of contract interpretation. See Pelly v. Panasyuk, 413 P.3d at

628 (citing Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d 614 (Wash. 2014) (en banc);

Hollis v. Garwall, Inc., 974 P.2d 836 (Wash. 1990) (en banc); and Newport Yacht Basin

Ass’n of Condo. Owners v. Supreme Nw., Inc., 277 P.3d 18). In Berg v. Hudesman, the

State of Washington Supreme Court stated that the “instant case presents a clear

47

opportunity for this court to resolve the long-standing confusion engendered by

inconsistent holdings in this area [of contract interpretation]” and that:

We now hold that extrinsic evidence is admissible as to the entire

circumstances under which the contract was made, as an aid in ascertaining

the parties’ intent. We adopt the Restatement (Second) of Contracts §§ 212,

214(c) (1981). Section 212 provides:

(1) The interpretation of an integrated agreement is directed to the

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