Cheshire Hunt, Inc. v. United States

In the United States Court of Federal Claims

No. 18-111L

Filed: January 31, 2022

________________________________________

)

CHESHIRE HUNT, INC., et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

________________________________________ )

Mark F. Hearne, II, True North Law, LLC, St. Louis, Mo., for Plaintiff. Stephen S. Davis, of

counsel.

Zachary T. West, Trial Attorney, Natural Resources Section, Environment and Natural Resources

Division, United States Department of Justice for the United States, with whom was Paul E.

Salamanca, Acting Assistant Attorney General, Environment and Natural Resources Division.

OPINION AND ORDER

MEYERS, Judge.

When the Government exercises its authority under the National Trails System Act

(“Trails Act”), 16 U.S.C. § 1247(d), to allow the conversion of a railway easement to a

recreational trail, it prevents the abandonment of the railway from extinguishing the easement

and takes the property owner’s reversion interest in the property. Because the Government takes

some portion of the landowner’s property interest when it prevents the reversion of the easement

to the landowner, the Government must pay just compensation. Here, the Government argues

that its taking was narrow and does not prevent the Plaintiffs from maintaining their previously

existing encroachments into the railway corridor so long as those encroachments do not interfere

with potential reactivation of rail use or interim trail use. Therefore, the Government argues that

it is not liable for the value of the encroaching betterments in this case. Because neither party’s

all-or-nothing view of the law is correct and there is nothing in the record indicating that the

Plaintiffs’ encroachments do not interfere with trail use, the Government’s motion fails. As a

result, the Court denies the Government’s motion for partial summary judgment.

I. Background

A. The Honore Deed.

In 1900, much of what is now Sarasota County, Florida was owned by Bertha Palmer and

her family members. ECF No. 14 ¶ 3. 1 Among Ms. Palmer’s relatives owning this property

was her brother, Adrian Honore. Id. Palmer and Honore actively sought to promote and bring

prosperity to Sarasota and Venice, Florida. Id. ¶¶ 3-4. To help the Venice area, Palmer and

Honore promoted the creation of a rail line between Sarasota, Florida, where existing railways

ended, to Venice, Florida, which was about 15 miles south of the existing terminus of Seaboard

Air Line Railway (the “Railroad” 2) line. Id.

In 1910, Mr. Adrian Honore executed a deed transferring “a right of way for railroad

purposes over and across” land in Sarasota County, Florida. 3 ECF No. 14-1 at 1. The Honore

deed provides that in the event the Railroad ever “abandon[s]” the easement—i.e., ceases using

the land “for railroad purposes”—the “land shall ipso facto revert to and again become the

property of the undersigned, his heirs, administrators and assigns.” Id. at 3 (emphasis in

original). This deed has come before the Court before and Judge Williams held that the Honore

deed created an easement for railway use and Mr. Honore (and his successors and assigns)

“retained fee title to the underlying land encumbered by the easement.” Rogers v. United States,

90 Fed. Cl. 418, 431 (2009).

B. The Trails Act Amendments of 1983.

America’s rail system peaked at 272,000 miles. Preseault v. I.C.C., 494 U.S. 1, 5 (1990).

By 1990, “only about 141,000 miles [were] in use,” and that number was projected to fall by

about 3,000 miles per year through the end of the twentieth century. Id. Prior to 1983, the

Government sought to convert railway rights-of-way to recreational trails after abandonment but

found this approach failed because many of the easements reverted to the landowners upon the

cessation of railroad use. See id. at 6. As a result, there was no interest left to convert to a

recreational trail.

In 1983, Congress amended the Trails Act to add Section 8(d), which “provides that

interim trail use ‘shall not be treated, for any purposes of any law or rule of law, as an

abandonment of the use of such rights-of-way for railroad purposes.’” Id. at 8 (quoting 16

U.S.C. § 1247(d)). “By deeming interim trail use to be like discontinuance rather than

abandonment, Congress prevented property interests from reverting under state law[.]” Id.

1

Plaintiffs’ Second Amended Complaint starts with paragraphs numbered 1-28, then has

paragraphs numbered 1-75, then paragraphs numbered 1 and 2, then paragraphs numbered 1-22.

ECF No. 14. Several more paragraphs are not numbered at all. To avoid confusion, the Court

refers to the first set of numbered paragraphs—i.e., paragraphs numbered 1-28 appearing on ECF

pages 4-12—unless otherwise indicated.

2

Seaboard fell upon hard times and its interest in the Honore easement has transferred several

times to other rail operators. Because there is no distinction between Seaboard and its successors

that is relevant to the resolution of this motion, the Court refers simply to the “Railroad.”

3

At the time of the deed, what is now Sarasota County was part of Manatee County, Florida.

While the deed refers to the property being in Manatee County, the Court refers to the property

as being in Sarasota County because that is how the remaining documents—e.g., the NITU—

refer to the property.

2

(internal citation omitted). This gave the Government a chance to convert rights-of-way to trail

use before the property could revert to the servient landowners. This also gives rise to the taking

in rails-to-trails cases.

C. The application for abandonment and the NITU.

For many years the Railroad operated a rail line across the Honore easement. But the last

commercial traffic over the line was in 2002. ECF No. 14 ¶ 9. As a result, the railroad

petitioned the Surface Transportation Board (“STB” or the “Board”) for authorization to abandon

several sections of the Sarasota-Venice railroad. Id. ¶¶ 10-18. In 2017, the Railroad petitioned

to abandon the 1.71-mile segment of the rail line at issue in this case. Id. ¶ 11. After Sarasota

County agreed to serve as trail operator, the STB issued a Notice of Interim Trail Use (“NITU”)

on December 5, 2017. Id. ¶ 17; see also ECF No. 14-1 at 107-11 (Ex. 10). The NITU covers a

1.71-mile segment of the Venice Branch railway line “between milepost SW 890.29 and

milepost SW 892.00 outside of the City of Sarasota, in Sarasota County, Fla.” ECF No. 14-1 at

107. The right-of-way extends 50 feet from the centerline of the tracks, making a roughly 100-

foot-wide corridor. Id. at 114 (Ex. 11) (“Site Boundary 50’ ± From Centerline of Nearest Track

(CSX Corridor 100’ Wide)”). The NITU allowed the Railroad to discontinue service while

preventing the right-of-way from reverting to the Plaintiffs pursuant to the Honore deed.

Following the NITU, the Railroad negotiated a trail use agreement with Sarasota County,

Florida, in which the County agreed to serve as the trail operator. See id. at 112. As the trail

operator, Sarasota County has dispatched sheriff’s deputies to remove people from the right-of-

way and ordered Plaintiffs and others to remove improvements that encroach on the easement.

ECF No. 140 at 2. The Government, however, insists that it did nothing to authorize Sarasota

County to demand the removal of encroachments, thereby passing the liability for their value to

the county. See ECF No. 139 at 6. Sarasota County denies liability in separate litigation in

Florida. ECF No. 140 at 10 n.18. Plaintiffs are left without their property and two sovereigns

pointing the finger at each other as the one responsible for the takings.

D. The encroachments.

The primary issue before the Court is who is liable for ordering the Plaintiffs to remove

encroaching improvements from the right-of-way. 4 According to the Government, “[t]hese

encroachments include fences, storage containers, portions of buildings, concrete pads, and

telecommunication towers, among others.” ECF No. 120 at 1. The record provides a more

detailed explanation of the easements as follows:

• Argos Ready Mix’s encroachments include a fence. ECF No. 152-12 at 7. 5

Sarasota County describes this encroachment as a fence that is “[a]pproximately

4

While the Parties assert that some of these encroachments have existed for decades, the record

does not reflect how these encroachments came into being or what their legal status was at the

time of the NITU.

5

Because ECF No. 152 and its accompanying attachments do not include consistent page

numbering, the Court refers to the page numbering in the ECF Header.

3

encroaching 25.7 ft. at northern boundary.” ECF No. 152-15 at 7 (PID No.

0097050017).

• Charleen R Rosin Revocable Trust’s encroachments included a fence. ECF No.

152-12 at 3. Sarasota County describes this encroachment as a fence that has

been “removed already” and was “[a]pproximately encroaching 1.8 ft.” ECF No.

152-15 at 7 (PID No. 0090010003).

• Ducks in a Row Enterprises, LLC’s encroachments include “a portion of [an]

outbuilding, fence, parking lot, chain link fence, and bollards.” ECF No. 152-12

at 4. Sarasota County describes this encroachment as: “Fence - 16.5 ft. at

northern boundary and 19.7 ft. at southern boundary; Concrete Building - 5.7 ft. at

northern corner and 11.5 ft at southern corner; 4 x 8” Bollards; Concrete Asphalt

by Bollards - 11.9 ft.” and also indicates that there is an “antenna tower” as well.

ECF No. 152-15 at 7 (PID No. 0090010002).

• Group W Property’s encroachments include a “metal storage building, storage

yard and fence.” ECF No. 152-12 at 8 (PID No. 0097120005).

II. Pending motions regarding supplemental authority and evidence.

Before turning to the merits of the Government’s motion, the Court addresses other

pending motions. Since the Court heard argument on the Government’s motion, the Plaintiffs

have filed several notices of supplemental authority and motions to file supplemental evidence.

See ECF Nos. 133, 146, and 152. The most recent is a motion to file additional evidence

regarding the Government’s motion that Plaintiffs filed on October 17, 2021. These two

motions, ECF Nos. 146 and 152 are granted.

III. The Government’s motion for partial summary judgment.

For the purposes of this motion, the Government does not dispute that the Honore deed

created an easement limited to railroad use and the underlying land would have reverted to

landowners upon the abandonment of railroad use if the Government had not invoked the Trails

Act. According to the Government, “[t]he parties agree that under Florida law, the railroad

originally acquired only an easement for railroad purposes in the segments of the corridor

adjacent to the True North Plaintiffs’ property, and that Plaintiffs own the fee underlying the

corridor to the centerline.” ECF No. 120 at 1; see also Hearing Tr. at 7:25-8:8 (ECF No. 145).

The issue before the Court is the scope of the Government’s taking.

A. Standard of Review

Under Rule 56, “[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.” Rules of the Court of Federal Claims (“RCFC”) 56(a). The initial burden on the movant is

to show that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). If the movant does so, the burden shifts to the nonmovant to show the existence

of a genuine dispute of a material fact, which can be achieved by “citing to particular parts of

4

materials in the record” or by “showing that the materials cited do not establish the absence . . .

of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” RCFC 56(c)(1). “By its very terms, this standard provides that the mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A

“genuine” dispute of material fact exists where a reasonable factfinder “could return a verdict for

the nonmoving party.” Id. at 248. “Material” facts are those “that might affect the outcome of

the suit under the governing law,” as opposed to “disputes that are irrelevant or unnecessary.”

Id.

“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be

drawn in his favor.” Id. at 255. Therefore, “[a]ny 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.” BES Design/Build, LLC v. United States, No. 19-1892C, 2021 WL 5621326, at

*24 (Fed. Cl. Nov. 30, 2021) (citations omitted). But “a nonmovant 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.” Id. at *25 (quoting Saab Cars USA, Inc. v. United

States, 434 F.3d 1359, 1369 (Fed. Cir. 2006)).

B. Neither Party’s extreme view of the easement is correct.

According to the Government, the Trails Act calls for the easement to be the least costly

to the Federal Government. See ECF No. 120 at 3. As a result, the Government insists that a

Trails Act easement for recreational trail use must be non-exclusive for the trail operator and the

Government is not liable for taking the Plaintiffs’ right to maintain their encroachments. Id. The

Plaintiffs contend that “the Board’s invocation of section 8(d) is a complete taking of the

landowners’ state-law right to use and possess the land and takes essentially the entirety of the

owners’ state-law right to their property.” ECF No. 130 at 29. Alternatively, Plaintiffs contend

that the easement grants the trail operator the exclusive use of the property. Id. at 32-34. Neither

extreme is correct.

1. The Trails Act neither mandates nor prohibits exclusive easements.

The Government argues that the Trails Act’s “plain language does not mandate the

creation of exclusive easements for trail use.” ECF No. 120 at 9. That may well be so, but the

plain language also does nothing to prohibit exclusive use easements. The Court begins, as it

must, with the text of the Trails Act. E.g., Caraco Pharm. Lab’ys, Ltd. v. Novo Nordisk A/S, 566

U.S. 399, 412 (2012) (“We begin ‘where all such inquiries must begin: with the language of the

statute itself.’”) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989));

Barela v. Shinseki, 584 F.3d 1379, 1382-83 (Fed. Cir. 2009) (“Statutory interpretation starts with

the plain language of the statute.”) (citation omitted). The Trails Act provides:

The Secretary of Transportation, the Chairman of the Surface

Transportation Board, and the Secretary of the Interior, in

administering the Railroad Revitalization and Regulatory Reform

Act of 1976 . . . shall encourage State and local agencies and

5

private interests to establish appropriate trails using the provisions

of such programs. Consistent with the purposes of that Act, and in

furtherance of the national policy to preserve established railroad

rights-of-way for future reactivation of rail service, to protect rail

transportation corridors, and to encourage energy efficient

transportation use, in 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. If a State, political subdivision, or qualified

private organization 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,

then the Board shall impose such terms and conditions as a

requirement of any transfer or conveyance for interim use in a

manner consistent with this chapter, and shall not permit

abandonment or discontinuance inconsistent or disruptive of such

use.

16 U.S.C. § 1247(d).

The Government reads this provision and finds its “express, narrow purpose is to

‘preserve established railroad rights-of-way for future reactivation of rail service.’” ECF No.

120 at 10 (quoting 16 U.S.C. § 1247(d)). Therefore, the Government argues that the Court

should construe Section 1247(d) “to create the least burdensome interest necessary to achieve its

stated purpose . . . .” Id. For their part, Plaintiffs counter that Congress unequivocally

authorized the taking of their property for two purposes: (1) to preserve railroad corridors for

potential reactivation; and (2) to expand public recreation. ECF No. 130 at 16, 32-33. The

Plaintiffs are correct.

The assertion that Section 1247(d)’s only purpose is to preserve railroad rights-of-way is

belied by the text of the statute and Supreme Court precedent. The very first sentence of Section

1247(d) directs various cabinet secretaries to “encourage State and local agencies and private

interests to establish appropriate trails.” 16 U.S.C. § 1247(d) (emphasis added). The Supreme

Court held that Congress’s 1983 amendments to the Trails Act, which added Section 1247(d),

represented “the culmination of congressional efforts to preserve shrinking rail trackage by

converting unused rights-of-way to recreational trails.” Preseault, 494 U.S. at 5 (emphasis

added). And the Supreme Court found that “[t]wo congressional purposes are evident” in the

Trails Act. Id. at 17 (emphasis added). The first of these purposes was “to ‘encourage the

development of additional trails’ and to ‘assist recreation[al] users by providing opportunities for

trail use on an interim basis.’” Id. at 17-18 (first quoting H.R.Rep., at 8, 9; S.Rep., at 9, 10

(same), U.S. Code Cong. & Admin. News 1983, p. 119; and then citing 16 U.S.C. § 1241(a)

which states that the Trails Act “promote[s] the preservation of, public access to, travel within,

and enjoyment and appreciation of the open-air, outdoor areas and historic resources of the

6

Nation”). The second purpose was “to preserve established railroad rights-of-way for future

reactivation of rail service, to protect rail transportation corridors, and to encourage energy

efficient transportation use.” Id. at 18 (quoting H.R.Rep., at 8; S.Rep., at 9, U.S. Code Cong. &

Admin. News 1983, p. 119) (citation omitted).

Despite the clarity of the Trails Act, the Government argues that the legislative history

shows that Congress did not intend to have the trail use easements be exclusive for the trial

operator. ECF No. 120 at 14-15. Here too the Plaintiffs respond that Congress intended to take

their state-law right to use and possess their property in its entirety. ECF No. 130 at 29-33. As

an initial matter, this Court does not believe there is any reason to resort to legislative history in

this case because the Trails Act is unambiguous. That said, the Supreme Court has addressed the

history of the Trails Act, and specifically Section 8(d) added by the 1983 amendments. But even

if it were proper to review the Trails Act’s legislative history, it would not help the Government.

The Government relies most on the Supreme Court’s statement in Preseault that “[t]here

is no doubt that Congress meant to keep the costs of the [1983] Amendments to a minimum.”

ECF No. 120 at 5 (some alterations in original) (quoting Preseault, 494 U.S. at 14). From this

statement, the Government contends that Congress “did not intend Section 8(d) to impose costly

exclusive easements.” Id. at 14; see also id. at 15 (“The legislative record conflicts with the

suggestion that Congress intended to impose exclusive easements and exclude servient estate

owners from their land.”). But the Supreme Court’s opinion in Preseault does not support the

Government’s argument. The Supreme Court concluded that the legislative history indicated

that Congress chose a less expensive alternative than federal acquisition of all abandoned rights-

of-way. According to the Court:

The statements made in Congress during the passage of the Trails

Act Amendments might reflect merely the decision not to create a

program of direct federal purchase, construction, and maintenance

of trails, and instead to allow state and local governments and

private groups to establish and manage trails. The alternative

chosen by Congress is less costly than a program of direct federal

trail acquisition because, under any view of takings law, only some

rail-to-trail conversions will amount to takings. Some rights-of-

way are held in fee simple. Others are held as easements that do

not even as a matter of state law revert upon interim use as nature

trails. In addition, under § 8(d) the Federal Government neither

incurs the costs of constructing and maintaining the trails nor

assumes legal liability for the transfer or use of the right-of-way.

In contrast, the costs of acquiring and administering national scenic

and national historic trails are borne directly by the Federal

Government. Thus, the “low cost” language might reflect

Congress’ rejection of a more ambitious program of federally

owned and managed trails, rather than withdrawal of a Tucker Act

remedy.

7

Preseault, 494 U.S. at 15-16 (footnotes and internal citations omitted). Nothing in the history or

Supreme Court precedent dictates the conclusion that Congress did not authorize the taking of an

exclusive easement.

According to the Government, “[t]his Court should afford substantial deference to the

United States’ position.” ECF No. 120 at 15. The Government doesn’t specify what type of

deference it claims to be entitled to, but argues this deference is due under United States v.

Carmack, 329 U.S. 230 (1946). ECF No. 120 at 15. According to Carmack, “[t]he power of

eminent domain is vested in the sovereign, which has broad discretion to decide how to employ

that power.” Id. (citing Carmack, 329 U.S. at 236). Plaintiffs respond to the Government based

on the understanding that the Government is seeking some form of Chevron deference. See ECF

No. 130 at 33-34. It is not clear, however, that the Government is seeking Chevron deference in

this case because it never cites Chevron nor argues for deference like Chevron here. That said,

no amount of deference would allow the Court to credit the Government’s interpretation of the

Trails Act when that interpretation runs counter to Supreme Court precedent as discussed above.

In Carmack, the Supreme Court held that the sovereign has broad discretion in how to

exercise its eminent domain power. See ECF No. 120 at 15. Carmack addressed whether certain

government officials were authorized by Congress to acquire certain land for a post office in

Cape Girardeau, Missouri. Carmack, 329 U.S. at 233. But the discretion discussed in Carmack

dealt with whether the United States could invoke eminent domain to take property in Cape

Girardeau when Congress had not specified the locations that it authorized the Government to

take property. And much of the dispute in Carmack involved whether the United States could

take Missouri public property—e.g., a courthouse, a local park, city hall, and a public library—

and use that property for federal purposes. Id. at 233-34. No similar issues arise in this case and

nothing in Carmack supports the notion that the Government is entitled to deference on a

question of Fifth Amendment Taking damages. The Government does not get to put its finger on

the scale when it comes to determining just compensation.

Taken together, the statutory text and precedent make clear that Congress sought to

preserve railway rights-of-way and promote recreational trails. While it may be that the

preservation of railway rights-of-way is Congress’s primary concern, given the requirement that

any trail use is subject to reactivation of rail use, the Court must give meaning to the recreational

trail use until such time as the rail use resumes.

2. The Trails Act does not preempt or forbid all uses of Plaintiffs’ property.

Plaintiffs argue that the Trails Act “explicitly preempt[s] owners’ state-law rights and

state-law remedies” and that “[the STB] has declared that state law is preempted beginning with

the Board’s original invocation of section 8(d) and state law is continually and perpetually

preempted thereafter.” ECF No. 130 at 21. The Government counters that the preemption under

the Trails Act is limited to abandonment and matters that interfere with railroad use. ECF No.

132 at 3-4, 9.

The Plaintiffs’ argument is overbroad. This Court and others have repeatedly rejected the

argument that the Trails Act preempts all use of burdened property by the servient landowner.

E.g., Dana R. Hodges Tr. v. United States, 111 Fed. Cl. 452, 457 (2013); Sears v. United States,

8

132 Fed. Cl. 6, 26 (2017), aff’d per curiam, 726 F. App’x 823 (Fed. Cir. 2018); see also Franks

Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 410-11 & n.2 (5th Cir. 2010) (holding that

railroad crossing disputes under state law are only pre-empted if such disputes invoke state laws

that if enforced would affect the management or governance of rail transportation); Adrian &

Blissfield R.R. Co. v. Vill. of Blissfield, 550 F.3d 533, 539-41 (6th Cir. 2008) (holding that state

law will be pre-empted if it serves to prevent the railroad from carrying out its operations); New

York Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252-54 (3d Cir. 2007) (agreeing

“that a state law that affects rail carriage survives preemption if it does not discriminate against

rail carriage and does not unreasonably burden rail carriage”); Florida E. Coast Ry. Co. v. City of

W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir. 2001) (holding that “express pre-emption

applies only to state laws ‘with respect to regulation of rail transportation’”) (emphasis in

original). Therefore, “[s]tate law claims that do not deal with abandonment issues are not

preempted by the Trails Act.” Sears, 132 Fed. Cl. at 26 (citing Dana R. Hodges Trust, 111 Fed.

Cl. at 456–57); ECF No. 120-1 at 9 n.2.

The STB has clearly stated that its “regulatory interest is that nothing precludes ‘a

railroad’s right to reassert control over the right-of-way at some future time to revive active rail

service.’” ECF No. 120 at 13 (quoting ECF No. 120-1 at 9 n.2). As such, it appears that the

STB has no direct interest in the scope of the trail easement beyond ensuring the ability to return

to rail use. Further, the STB has stated that “trail use under the Trails Act should not prevent a

third party from continuing to use a portion of the rail right-of-way in the same manner it was

lawfully used before the interim trail use on the line, so long as that use does not interfere with

potential reactivation of rail service.” ECF No. 120-1 at 9 n. 2. The Court cannot fully agree

with the STB, however, because the Trails Act serves two purposes—i.e., the reactivation of rail

use and interim trail use. The lawful use of the burdened property under a trail use easement is

not necessarily the same as it was under the rail easement because an encroachment that does not

interfere with rail use may well interfere with trail use. As the Federal Circuit explained, “it

appears beyond cavil that use of these easements for a recreational trail—for walking, hiking,

biking, picnicking, frisbee playing, with newly-added tarmac pavement, park benches,

occasional billboards, and fences to enclose the trailway—is not the same use made by a

railroad, involving tracks, depots, and the running of trains. The different uses create different

burdens.” Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004) (emphasis added).

The Court is not persuaded by the Plaintiffs’ reliance on Tubbs v. Surface Transportation

Board, 812 F.3d 1141 (8th Cir. 2015), as a “demonstration of the Board’s broad assertion of its

preemptive authority over state law and state law remedies.” ECF No. 130 at 22. In Tubbs, the

plaintiffs sued on a variety of state law theories that a railroad improperly constructed its rail

line, which they alleged caused flooding on their property. 812 F.3d at 1145-46. The Circuit

affirmed the preemption of the plaintiffs’ claims because “the state-law claims would

unreasonably burden or interfere with rail transportation.” Id. The record here does not support

a similar holding. First, the STB has stated that its “regulatory interest is that nothing preclude

potential rail reactivation.” ECF No. 132 at 6 (citing ECF No. 120-1). Additionally, the

Government has explicitly stated that it does not believe the Plaintiffs’ encroachments interfere

with rail use. Hearing Tr. at 15:16-17 (ECF No. 145) (stating that the encroachments at issue

“did not interfere then [when the Railroad was operating] and they would not interfere with rail

reactivation now”). Second, although the Court does not have before it the history of how these

encroachments came to be or their legal status at the time of the NITU, the Government has

9

acknowledged that the “encroachments that we’re talking about, they were in the corridor for

years, and according to Plaintiffs, some cases decades, before rail banking.” Id. at 15:13-16. If

any of these encroachments interfered with rail use, one could safely assume that the STB or the

Court would have heard about it before now.

Similarly, the Court does not find that Grantwood Village v. Missouri Railroad Co., 95

F.3d 654 (8th Cir. 1996), supports the Plaintiffs’ view that the Trails Act preempts all state law.

Grantwood Village involved a quiet title action in which the Eighth Circuit recognized the

plaintiff was making “a collateral attack on the ICC’s 6 order authorizing interim trail use on the

right-of-way.” Id. at 657. Thus, the Circuit explained that such a claim was preempted, not that

all state laws were. See also James v. United States, 130 Fed. Cl. 707, 734 (2017) (recognizing

that Grantwood Village addressed a question of abandonment and that such claims were

preempted rather than all state law claims). The same is true of City of Auburn v. United States,

154 F.3d 1025 (9th Cir. 1998), which found state laws requiring environmental permitting of rail

lines were preempted by federal law. But these cases do not support the broad notion that the

Trails Act preempts the operation of all state laws or prohibits all uses by the servient landowner.

Finally, Plaintiffs rely on Illig v. United States, 58 Fed. Cl. 619 (2003), to argue that the

Trails Act easement is exclusive. ECF No. 130 at 35-36. The Court, however, agrees with the

Government that Illig does not hold that all Trails Act easements are for exclusive use by the

trail operator. ECF No. 132 at 9-10. Instead, Illig analyzed the statutory and regulatory

framework under the Trails Act and persuasively held that the trail easement must be at least

coextensive with the rail easement “both in its location and exclusivity.” Illig, 58 Fed. Cl. at

631. But, as the Government points out, Illig addressed the exclusivity of rail easements under

Missouri law and found them to be exclusive. As explained below, Florida does presume that

rail easements are nonexclusive.

3. Florida law presumes that railroad easements are nonexclusive.

The Parties dispute whether under Florida law a rail use easement is exclusive. Compare

ECF No. 120 at 16-21 with ECF No. 130 at 16-30. An exclusive easement is “[a]n easement that

the holder has the sole right to use.” Exclusive easement, Black’s Law Dictionary (11th ed.

2019). In other words, if the easement is exclusive, then the trail operator is the only one that

may make any use of the property.

Under Florida law an easement is presumed to be nonexclusive and any intent to grant

exclusive use must be explicit. See Wiggins v. Lykes Bros., Inc., 97 So. 2d 273, 276-77 (Fla.

1957); Stephens v. Dobbins, 511 So. 2d 652, 652-53 (Fla. Dist. Ct. App. 1987); Gelfand v.

Mortg. Invs. of Wash., 453 So. 2d 897, 898 (Fla. Dist. Ct. App. 1984). “The general rule of law

in Florida is that an instrument creating an easement must be construed as creating a

nonexclusive easement unless the instrument clearly shows an intention that the easement is to

be exclusive.” Stephens, 511 So. 2d at 652-53 (citing Wiggins, 97 So. 2d 273; Gelfand, 453 So.

2d 897; Consol. Gas Co. v. City Gas Co. of Fla., 447 So. 2d 351 (Fla. Dist. Ct. App.1984)). In

short, “no intention to convey an exclusive easement . . . can be imputed to the grantor of the

6

The authority of the STB over abandonment issues previously belonged to the Interstate

Commerce Commission (“ICC”).

10

easement in the absence of a clear indication of such intention. . . .” Wiggins, 97 So. 2d at 276-

77. There is nothing in the Honore deed that indicates an intent to convey an exclusive easement

to the Railroad and the Parties point to nothing.

Plaintiffs instead argue that railway easements are exclusive under Florida law. But

Plaintiffs’ reliance on McIlvaine v. Florida East Coast Railway Co., 568 So. 2d 462, 464 (Fla.

Dist. Ct. App. 1990), is misplaced. See ECF No. 130 at 35. According to Plaintiffs, McIlvaine

holds that “[b]ecause the railroad is held to a high degree of care in transporting goods and

people, the carrier is granted what is essentially exclusive possession of its easement.”. Id.

(quoting McIlvaine, 568 So. 2d at 464). But in McIlvaine, the court of appeals reversed the trial

court’s holding on exclusivity because it found “no authority is offered to support a railroad’s

removal of a structure that was in existence at the time the right of way was granted” and thus

the “appellant should be allowed to retain the structures located on his land or to require FEC to

compensate him for their removal.” 568 So. 2d at 466.

The Government’s reliance on Kitzinger v. Gulf Power Co., 432 So. 2d 188 (Fla. Dist. Ct.

App. 1983), is equally misplaced. ECF No. 120 at 18-20. According to the Government,

because Kitzinger was “a compromise ruling, [where] the court refused to enjoin the

[encroaching] house but maintained it was not free of the easement,” “this Court should balance

Sarasota County’s right to use the trail use easement with the servient estate owner’s right to

enjoy their burdened fee.” Id. at 18-19. But Kitzinger does not support such a conclusion. The

Federal Government’s authority to take property is not dependent on state law. According to the

Supreme Court, “[i]f the United States have the power [of eminent domain], it must be complete

in itself. It can neither be enlarged nor diminished by a State. Nor can any State prescribe the

manner in which it must be exercised.” Carmack, 329 U.S. at 238 (quoting Kohl v. United

States, 91 U.S. 367, 374 (1875)).

Even if the Court relies on Kitzinger, it does not support the Government here. In

Kitzinger the servient landowner built a house that encroached “18.06 feet into a 100-foot wide

electrical transmission line easement that Gulf Power” possessed. Kitzinger, 432 So. 2d at 189.

Gulf Power sued for an injunction ordering the removal of the house even though it was

undisputed that the house did not interfere with any past, present, or planned future use of the

easement. Id. The Court determined that although the encroachment did not interfere with any

use of the easement at the time of the litigation and would not be removed, the easement holder’s

easement was not diminished by the maintenance of the encroachment. Id. at 194-95. In other

words, if the power company chose to use its easement in a manner that the house interfered

with, the power company retained the right to order the encroachment removed. Id. at 195. This

would support a finding in this case that the easement holder—i.e., the trail operator—maintains

the right to order the removal of encroachments if they interfere with trail use even if they did

not interfere with rail use.

4. The deeds from the Railroad to Sarasota County do not define the scope of

the taking in this case.

The Government insists that the Court should look to the deeds that transferred the

easement from the Railroad to The Trust for Public Land and then from The Trust for Public

Land to Sarasota County to determine the scope of the taking here. ECF No. 132 at 10 (citing

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ECF No. 120-3). For reasons already stated, this analysis is misguided. The deeds here did not

take Plaintiffs’ property—the STB did through the NITU. As Justice Holmes explained, “the

question is, What has the owner lost? not, What has the taker gained?” Bos. Chamber of Com. v.

City of Bos., 217 U.S. 189, 195 (1910); see also Seaboard Air Line Ry. Co. v. United States, 261

U.S. 299, 304 (1923) (“The compensation to which the owner is entitled is the full and perfect

equivalent of the property taken.”) (citation omitted).

As the Federal Circuit has often explained, “[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)

(citation omitted). Therefore, “[t]he issuance of the NITU is the only government action in the

railbanking process that operates to prevent abandonment of the corridor and to preclude the

vesting of state law reversionary interests in the right-of-way.” Id. at 1020 (quoting Caldwell v.

United States, 391 F.3d 1226, 1233-34 (Fed. Cir. 2004)) (alteration and emphasis in original). 7

The Circuit reiterated this conclusion recently, holding:

It is important to identify the nature of the government action at

issue. The NITU in this case, as in similar cases, was a

government action that compelled continuation of an easement for

a time; it did so intentionally and with specific identification of the

land at issue; and it did so solely for the purpose of seeking to

arrange, without the landowner’s consent, to continue the easement

for still longer, indeed indefinitely, by an actual trail conversion.

Caquelin v. United States, 959 F.3d 1360, 1367 (Fed. Cir. 2020).

It is important to understand what the easement is in this case. Like other easements, a

right-of-way easement under the Trails Act “burdens ‘a particular parcel of land.’” United States

Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S.Ct. 1837, 1845 (2020) (quoting J. Bruce &

J. Ely, Law of Easements and Licenses in Land § 1:1, at 1-6 (2015)). And “[l]ike all easements,

the parcel of land burdened by the easement has particular metes and bounds.” Id. at 1846

(citation omitted). This description of the burdened property is essential because “without such

descriptions, parties to an easement agreement would be unable to understand their rights or

enforce another party’s obligations under the easement agreement. Id. Here, the NITU provides

for the easement over the 100-foot wide (+/-) corridor between Milepost SW 890.29 and

7

The Court recognizes that this formulation of the NITU as the taking is “shorthand” for a larger

analysis that applies when “no party has pointed to any legally material difference between the

NITU date of issuance (or expiration) and a date of abandonment in the but-for world in which

there was no NITU.” Hardy v. United States, 965 F.3d 1338, 1349 (Fed. Cir. 2020) (quoting

Caquelin v. United States, 959 F.3d 1360, 1372 (Fed. Cir. 2020)). Because the issue here is what

defines the scope of the taking rather than its timing, the Court applies the Ladd-Caldwell

shorthand rather than the larger analysis (i.e., when the railroad would have abandoned in the

absence of a NITU). See Caquelin, 959 F.3d at 1372 (concluding “there is no taking until the

time as of which, had there been no NITU, the railroad would have abandoned the rail line,

causing termination of the easement that the NITU continued by law”).

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Milepost SW 892.00. The NITU makes no exception for any encroachments; it authorizes

converting the “right-of-way” into a recreational trail without any limitation. ECF No. 14-1 at

107-111 (Ex. 10). Deeds between third parties do not define the scope of the easement—the

NITU does. Although the Parties argue that Palmetto Conservation Foundation v. Smith, 642 F.

Supp. 2d 518 (D.S.C. 2009) addresses the exclusivity of the trail easement, the Court finds it

more appropriate when considering the scope of the easement. In Palmetto, the court held that

the trail use easement imposed a different use of the property and that “‘different uses create

different burdens.’” Id. at 530 (quoting Toews v. United States, 376 F.3d 1371, 1376-77 (Fed.

Cir. 2004)). The upshot of Palmetto is that the new easement entitles the trail operator to use the

entire easement for trail purposes if it chooses unless some portion of the easement has been

ceded back to the servient landowner. In other words, Palmetto stands for the common sense

understanding that an easement holder may use the entirety of the burdened property for the

purpose of the easement. But without knowing the legal status of the encroachments at the time

of the NITU, the Court cannot determine Palmetto’s application here.

C. There is no evidence showing that the Plaintiffs’ encroachments do not

interfere with trail use.

The Government argues that it is not liable for the value of the encroachments because

the easement granting the trail operator the right to use the right-of-way as a recreational trail is

nonexclusive. But the exclusivity issue does not resolve the Government’s liability because the

question here is whether the Plaintiffs had the right to maintain encroachments that conflicted

with the trail operator’s right to use its easement. As the Government itself states, “a servient

estate owner can use a rail-trail corridor if they do not materially interfere with potential rail

reactivation or public trail use.” ECF No. 132 at 3. Because there is no evidence that the

Plaintiffs’ encroachments do not interfere with trail use, summary judgment is not appropriate

here.

As discussed above, neither Party argues that the Plaintiffs’ encroachments interfere with

potential rail reactivation. Because the encroachments appear to have existed during rail

operation without issue, it is hard to see how they could interfere with potential reactivation of

rail operations.

That said, there is no evidence that the encroachments do not interfere with trail use. The

Federal Circuit characterized a “NITU as allowing occupation by someone other than the

landowner.” Caquelin, 959 F.3d at 1367; see also id. at 1367-68 (discussing the categorical

treatment of rails-to-trails easement because it impairs the right to exclude others). Rather, it

appears that the Plaintiffs interfere with the easement given that they have erected buildings and

fenced off sections of the easement. As the Florida court recognized in Kitzinger, “‘the erection

of permanent structures, such as buildings or walls,’ is commonly regarded as ‘seriously

interfering with the [easement holder’s] right of use.’” Kitzinger, 432 So. 2d at 193 (quoting 3

Powell, The Law of Real Property ¶ 424 (1981)). Again, here each of the Plaintiffs has fenced

off a section of the easement for their exclusive use.

The Government also argues that the Trails Act “should not empower a trail sponsor to

remove an encroachment simply because it extends one foot into a 100-foot-wide corridor.”

ECF No. 132 at 9. As explained above, however, the question is not whether the Trails Act

13

empowers a trail sponsor, but the scope of the easement that the STB imposed on Plaintiffs. And

as a factual matter, this argument does not appear to apply to anything other than the Charleen R

Rosin Revocable Trust’s claim, which only encroached 1.8 feet into the easement. See supra pp.

3-4. Under the Government’s theory, it wouldn’t appear the same argument would apply to a 28-

foot encroachment. Because the Parties didn’t argue this issue with specific reference to the

NITU, the Court does not opine at this point. That said, to the extent Florida law defines the

scope of the easement the STB imposed (as explained above it is not clear that it does), Florida

courts have found that even minor encroachments are impermissible and enjoined the

maintenance of small buildings encroaching on an easement. E.g., Kitzinger, 432 So. 2d at 193.

Finally, the Government’s Motion is not helped by its highlighting the fact that “Sarasota

County already allows encroachments in the corridor—it just licenses their presence.” ECF 120

at 21 (citing ECF Nos. 74, 78 (denoting the “joint status reports detailing Sarasota County’s

willingness to license a structure encroaching into the corridor”)). This favorable citation to the

trail operator’s licensing of encroachments begs the question—if the trail operator has the

authority to license encroachments, an authority that must flow from the NITU, does it also have

the authority to choose not to license other encroachments? But without the NITU, the Plaintiffs

would be free to use their property unencumbered by any easement and Sarasota County would

not have any right as the trail operator to do anything with the easement.

IV. Motion to Sever Claims.

Also pending is a motion to sever the claims of non-encroaching landowners—i.e., the

Plaintiffs who have no encroachments on the right-of-way at issue—from the Plaintiffs subject to

this motion. While the Parties dispute the propriety of severing claims, the Court believes that

this opinion will put the encroaching and non-encroaching Plaintiffs on relatively the same path

for the remainder of the matter and severing the claims would be inefficient at this time.

Therefore, the Court denies the motion to sever without prejudice to refile if the proceedings

regarding the liability for the encroachments addressed in this opinion will unduly delay the non-

encroaching Plaintiffs’ claims.

V. Conclusion

For the reasons stated above, the Court:

1. DENIES the Government’s motion for partial summary judgment, ECF No. 120;

2. GRANTS the Plaintiffs’ motion for leave to file notice of supplemental authority, ECF

No. 146;

3. GRANTS the Plaintiffs’ motion for leave to file additional evidence, ECF No. 152;

and

4. DENIES without prejudice the Non-encroaching Plaintiffs’ motion to sever claims,

ECF No. 153.

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The Court will schedule a status conference with the Parties during the week of February

21, 2022 to address further proceedings in this matter and setting a schedule for any additional

briefing and/or trial in this matter.

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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