Castillo v. United States

In the United States Court of Federal Claims

Nos. 16-1624L; 17-1931L; 17-468L; 17-4680L

Filed: March 1, 2023

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

REINALDO CASTILLO, et al., *

*

Plaintiffs, *

v. *

*

UNITED STATES, *

*

Defendant. *

*

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

NELSON MENENDEZ, et al., *

*

Plaintiffs, *

v. *

*

UNITED STATES, *

*

Defendant. *

*

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

MIRIAM HERNANDEZ, *

*

Plaintiff, *

v. *

*

UNITED STATES, *

*

Defendant. *

*

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

*

CLARO LIMA, *

*

Plaintiff, *

v. *

*

UNITED STATES, *

*

Defendant. *

*

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

Meghan S. Largent, Lewis Rice, LLC, St. Louis, MO, James H. Hulme, Arent

Fox, LLP, Washington, D.C., Mark F. Hearne, II, True North Law LLC, St. Louis, MO, for

plaintiffs as counsel of record. With them were Lindsay S.C. Brinton, Lewis Rice, LLC,

St. Louis, MO, Laurel LaMontagne, Arent Fox, LLP, Washington, D.C., and Stephen S.

Davis, True North Law, LLC, St. Louis, MO.

Davene D. Walker, Trial Attorney, Natural Resources Section, Environment and

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

defendant. With her was Todd Kim, Assistant Attorney General, Environment and Natural

Resources Division, Washington, D.C.

OPINION

HORN, J.

The Opinion which follows addresses the limited remand of this court’s decision in

the cases of Reinaldo Castillo, et al., v. United States, Case No. 16-1624L (Castillo), and

Nelson Menendez, et al., v. United States, Case No. 17-1931L (Menendez), see Castillo

v. United States, 138 Fed. Cl. 707 (2018), rev’d, 952 F.3d 1311 (Fed. Cir. 2020), and this

court’s decision on motions to reconsider this court’s Opinion in both cases. See Castillo

v. United States, 140 Fed. Cl. 590 (2018), rev’d, 952 F.3d 1311 (Fed. Cir. 2020). The

nineteen plaintiffs in Castillo,1 three plaintiffs in Menendez,2 one plaintiff in Miriam

1 The plaintiffs in Castillo are as follows, in the form provided by the parties, in order of

claim number: Gonzalo Padron Marino and Julia Garcia; and Mayda Rotella, parcel

number 01-4002-002-0220; Shops on Flagler, Inc., parcel number 01-4002-002-1780;

Jose F. and Dora A. Dumenigo, parcel number 01-4002-002-1730; Humberto J. and

Josefa Marcia Diaz, parcel number 01-4002-002-1720; Luis Crespo, parcel number 01-

4002-002-1650; Jose Luis and Grace Barsello Napole, parcel number 01-4002-002-1640;

Bernardo D. and Norma A. Manduley, parcel number 01-4002-002-1630; Danilo A. and

Dora Rodriguez, parcel number 01-4002-002-1610; Avimael and Odalys Arevalo, parcel

number 01-4002-002-1600; Dalia Espinosa, Daniel Espinosa and Sofira Gonzalez, parcel

number 01-4002-002-1580; Lourdez Rodriguez, parcel number 01-4002-001-1370;

Alberto Perez, parcel number 01-4002-001-1380; Mayra Lopez, parcel number 01-4002-

001-1390; Niraldo Hernandez Padron and Mercedes Alina Falero, parcel number 01-

4002-001-1400; Luisa Palencia and Xiomara Rodriguez, parcel number 01-4002-001-

1410; Reinaldo F. Castillo, parcel number 01-4002-001-1430; Hugo E. and Concepcion

V. Diaz as Co-Trustees of the Diaz Family Revocable Trust, parcel number 01-4002-001-

1440; South American Tile, LLC, parcel number 01-4002-001-1450; and Gladys

Hernandez, parcel number 01-4002-001-1460.

2The plaintiffs in Menendez are as follows, in order of claim number: Norma D. Gomez

and Jose M. Martinez, parcel number 01-4002-002-1710; Nelson Menendez and Osvaldo

Borras, Jr., parcel number 01-4002-002-1690; and Luis R. Schmidt, parcel number 01-

4002-002 -1660.

2

Hernandez v. United States,3 Case No. 17-468L (Hernandez), and one plaintiff in Claro

Lima v. United States,4 Case No. 17-4680L (Lima), in the four above captioned cases

before this court, are each owners of properties in one of two subdivisions in Miami-Dade

County, Florida, the Princess Park Manor and Zena Gardens subdivisions. In a table

submitted to the court attached to the parties’ “Amended Joint Stipulations Regarding

Title” after the remand, discussed below, each plaintiff in Castillo, Menendez, Hernandez,

and Lima stipulated to ownership of a parcel of land “[a]djacent” to the Southern Little

River Branch Railroad Line (railroad corridor).5 All four sets6 of plaintiffs allege that as

“[a]djacent” landowners to the railroad corridor, they own the land that runs to the

centerline of the railroad corridor. The plaintiffs further allege that when the United States

government, pursuant to the National Trails System Act, 16 U.S.C. § 1241 et seq. (2018)

(the Trails Act), authorized use of the railroad corridor as a public recreational trail, the

government destroyed plaintiffs’ reversionary rights to exclusive use and possession of

the land underlying the railroad corridor, and thereby effected a taking of plaintiffs’

property without just compensation. According to the Castillo, Menendez, Hernandez, and

Lima plaintiffs, they are, therefore, entitled to receive just compensation under the Fifth

Amendment to the United States Constitution for the government’s taking of their private

property.

FINDINGS OF FACT

In 2018, the court issued an Opinion in Castillo and Menendez granting partial

summary judgment in favor of the United States and finding that the Castillo and

3 The plaintiff in Hernandez is Miriam Hernandez, parcel number 01-4002-002-1740.

4 The plaintiff in Lima is Claro Lima, parcel number 01-4002-002-1590.

5 A fifth case, also on the same rail line, Eduardo Alvarez, et al., v. United States, Case

No. 21-610L (Alvarez), was filed more recently than the others, and in a May 11, 2022

joint submission, the Alvarez parties agreed the legal and factual issues were

substantially similar to the Castillo, Menendez, Hernandez, and Lima cases and agreed

to not take further action at this time, pending a decision in the Castillo, Menendez,

Hernandez, and Lima cases. The plaintiff in Alvarez is Eduardo and Marilyn Alvarez,

parcel number 01-4002-002-0260.

6 The plaintiffs in the above captioned cases are organized according to parcel ownership

in the two subdivisions in which the plaintiffs own property. As a result, one “plaintiff” may

consist of multiple persons, as well as trusts, companies, or other entities, who together

own one parcel of land and, thus, have one claim against the United States. The

organization of plaintiffs in this opinion is consistent with the parties’ representations of

the plaintiffs’ organization, including the table provided in the parties’ “Amended Joint

Stipulations of Title,” discussed further below, as well as this court’s prior Opinion issued

June 29, 2018, in Castillo v. United States, 738 Fed. Cl. 707 (2018). While all plaintiffs

from the June 29, 2018 Opinion remain before the court, due to differences between the

parties’ prior joint stipulations and the most recent “Amended Joint Stipulations of Title,”

some plaintiffs’ names in this Opinion differ somewhat from the June 29, 2018 Opinion.

3

Menendez plaintiffs had no property interests in the land underlying the railroad corridor.

See Castillo v. United States, 138 Fed. Cl. at 742. As relevant to the above captioned

cases, from the record before the court at the time of the briefing of the prior cross-motions

for partial summary judgment, defendant relied on the subdivision plats of the Zena

Gardens and Princess Park Manor subdivisions in support of its cross-motions for partial

summary judgment before the remand. After the issuance of the court’s June 29, 2018

decision, the Castillo and Menendez plaintiffs filed motions for reconsideration trying to

rely on additional evidence including, in relevant part, chains of title for the properties

owned by the plaintiffs Reinaldo F. Castillo and Nelson Menendez,7 which had not been

previously submitted to the court prior to the decision on the earlier cross-motions for

partial summary judgment, for which reason the motions for reconsideration were denied.

See Castillo v. United States, 140 Fed. Cl. at 598, 606.8 Defendant opposed the motions

for reconsideration and tried to rely on a “tax deed,” dated 1937, which defendant similarly

produced for the first time during the briefing of the motions for reconsideration. This 1937

deed was not addressed in this court’s Opinion denying the motions for reconsideration.

After the motions for reconsideration were denied, the plaintiffs in Castillo and Menendez

filed an appeal to the United States Court of Appeals for the Federal Circuit. See Castillo

7 According to the Menendez chain of title and to the table submitted by the parties

showing all plaintiffs with claims currently before the court, the property owned by Nelson

Menendez is also owned by Osvaldo Borras, Jr. The Menendez chain of title includes

mentions of the surname “Borras” as well as “de Borras,” although plaintiffs refer to the

individual as Osvaldo Borras, Jr. For clarity, the court refers to the chain of title for the

property owned by Nelson Menendez and Osvaldo Borras, Jr., as the Menendez chain of

title.

8 As the court explained in its October 30, 2018 Opinion denying the Castillo and

Menendez plaintiffs’ motions for reconsideration, after the motions for reconsideration

were filed, plaintiffs in Castillo and Menendez submitted the chains of title of Mr. Castillo

and Mr. Menendez as attachments to “notices of additional authority in support of their

motions for reconsideration.” See Castillo v. United States, 140 Fed. Cl. at 598. Moreover,

the court further noted in the Opinion denying the motions for reconsideration that “[t]he

plaintiffs, without explanation, did not attach to the notices of additional authority the

chains of title for the parcels of land currently owned by the remaining eighteen Castillo

plaintiffs and remaining two Menendez plaintiffs in the above-captioned cases.” Id.

(alteration added). In addition to the chains of title of Mr. Castillo and Mr. Menendez,

plaintiffs tried to support their motions for reconsideration with two declarations, one of

which was from a law professor at the University of Missouri, and the other of which was

from a Florida attorney, as well as “a copy of three sections of the 2012 Florida Uniform

Title Standards,” and copies of the Zena Gardens and Princess Park Manor subdivision

plats. See id. The declarations and Florida Uniform Title Standards produced by plaintiffs

in support of their prior motions for reconsideration are not relied on by any party with

respect to the cross-motions for partial summary judgment currently before the court on

remand. With the exception of the subdivision plats, the evidence produced by plaintiffs

in support of their motions for reconsideration had not been previously submitted to this

court. See id.

4

v. United States, 952 F.3d 1311, 1315 (Fed. Cir. 2020). The Federal Circuit reversed and

issued a limited remand of the decisions in Castillo and Menendez to this court on the

issue of the application of the centerline presumption under Florida law, and directed “any

appropriate further development of the factual record.” Id. at 1325.9 The Castillo and

Menendez cases are now before this court on the limited remand, as well as the

Hernandez and Lima cases which were joined for the purposes of resolving plaintiffs’

claims with respect to the railroad corridor during the remand. Following the remand, the

parties engaged in additional discovery, along with multiple rounds of supplemental

briefing, and although plaintiffs produced no additional evidence to support their claims

during the post-remand period, defendant on remand produced a 1938 quitclaim deed

and a 1938 affidavit, both of which defendant argues clarify the 1937 deed defendant

previously produced in opposition to the prior motions for reconsideration.10 In their briefs

with respect to the cross-motions for partial summary judgment currently before this court

on remand and in multiple rounds of supplemental briefing, plaintiffs and defendant made

arguments regarding Florida law in effect at the time of the conveyances referred to in the

9 The Federal Circuit issued a precedential decision on appeal in the Castillo and

Menendez cases on February 20, 2020, see Castillo v. United States, 950 F.3d 1362

(Fed. Cir. 2020), but upon defendant’s petition for panel rehearing, the Federal Circuit

issued a modified precedential decision, Castillo v. United States, 952 F.3d 1311, and the

Federal Circuit also issued an order on the petition for panel rehearing, explaining that

“[t]he only changes from the previously issued opinion are a revision of the sentence now

on page 4, lines 22–29, and deletion of a phrase on page 7, line 22.” Castillo v. United

States, 796 F. App’x 746, 747 (Fed. Cir. 2020) (alteration added). The revised sentence

noted by the Federal Circuit reads in the modified decision:

If the railroad and trail operator reach a trail agreement during a negotiation

period provided by the STB’s issuance of a Notice of Interim Trail Use or

Abandonment (NITU), and so notify the STB, trail use of the right-of-way is

authorized and termination of the railroad easement through abandonment

is blocked indefinitely.

Castillo v. United States, 952 F.3d at 1315. The modified decision also deleted the phrase

“that would allow it to operate a trail on the corridor,” Castillo v. United States, No. 2019-

1158, slip op. at 7 (Fed. Cir. Feb. 20, 2020), from the sentence which in the modified

decision reads: “On November 1, 2016, Florida East Coast Industries (FEC Industries)

requested issuance of an NITU.” Castillo v. United States, 952 F.3d at 1316. According

to the Editor’s Note currently available at the citation of the original Federal Circuit

decision in Castillo, the Federal Circuit’s original decision “was withdrawn from bound

volume because it was superseded on rehearing,” Castillo v. United States, 950 F.3d

1362, and is no longer available on legal databases.

10 Consistent with the limited remand directed by the Federal Circuit, plaintiffs’ arguments

in their cross-motions for partial summary judgment on remand are limited to contending

that the evidence now in the record before the court upon which defendant relies does

not rebut the centerline presumption under Florida law.

5

1937 deed, 1938 quitclaim deed, and 1938 affidavit, discussed further below. The

relevant findings of facts from this court’s decision before the appeal, the June 29, 2018

Opinion on the parties’ cross-motions for partial summary judgment in Castillo and

Menendez, in relevant part, are incorporated into this Opinion and the facts established

during discovery as part of the remand proceedings are described below.

Until its abandonment in 2016, the Florida East Coast Railway operated the section

of the railroad corridor at issue, which spans 100 feet in width and runs approximately

1.21 miles on the railroad corridor between milepost LR (Left/Right) 11+3989 and

milepost LR 13+0000 in Miami-Dade County, Florida. The land upon which the railroad

corridor at issue was built was obtained by the Florida East Coast Railway through

multiple conveyances in the 1920s. In particular, the section of the railroad corridor at

issue in the above captioned cases is comprised of four unequally sized and separate

rights-of-way as well as a strip of land resulting from a written deed (the Holman deed),

that, when combined, span 100 feet wide and comprise part of the 1.21 mile long railroad

corridor. In 1932, the Florida East Coast Railway constructed a railroad line on this 1.21

mile strip of land.

According to the map depicting an aerial view of the railroad corridor attached to

plaintiffs’ filings in the Castillo and Menendez cases, to which defendant did not take

issue, the four separate rights-of-way obtained by condemnation and the one property

interest obtained by the Holman deed are not all adjacent to the parcels now owned by

plaintiffs in the above captioned cases.11 According to the aerial map previously submitted to

the court, three of the four rights-of-way, the Russo right-of-way,12 the Johnson right-of-way,13 and

11 With respect to the Holman property interest, this court in its June 29, 2018 Opinion

determined that the Florida East Coast Railway obtained fee simple title to the land

covered by a 1923 deed from G.F. and Mary Holman, see Castillo v. United States, 138

Fed. Cl. at 711-12, and the Castillo and Menendez plaintiffs did not appeal that part of

the holding to the Federal Circuit. See Castillo v. United States, 952 F.3d at 1317 n.2.

This court’s previous holding with respect to the Holman deed, therefore, is not at issue

in this Opinion on remand.

12 The Florida East Coast Railway obtained the Russo right-of-way in a condemnation

proceeding in the Circuit Court of the Eleventh Judicial Circuit of Florida, in Dade County,

Florida (Dade County Circuit Court) on October 28, 1924 against “Paul Russo and

Southern Bank & Trust Company” that resulted in a final judgment appropriating land to

be used “as a right of way for the construction, location, and maintenance of the extension

of its line of railroad from Okeechobee, Florida to Miami, Florida” by Florida East Coast

Railway.

13The Florida East Coast Railway obtained the Johnson right-of-way in a condemnation

proceeding in the Dade County Circuit Court on November 21, 1924 against William H.

Johnson, Seminole Fruit & Land Company, Clark G. Smith, Ethel C. Rewis, and Donald

Rewis, that resulted in a final judgment appropriating land to be used “as a right of way

6

the J. Pyles and J. Owens right-of-way,14 when combined, form the eastern edge of the railroad

corridor that runs adjacent to all twenty-four parcels belonging to the plaintiffs in the above

captioned cases. The Stanley right-of-way,15 and the Holman property interest obtained by

a deed,16 when combined, form the western side of the railroad corridor, and, therefore,

are separated from the Castillo, Menendez, Hernandez, and Lima plaintiffs’ parcels by

one of the other three rights-of-way at issue, as depicted on the Castillo and Menendez

plaintiffs’ aerial map.

The Four Separate and Distinct Rights-of-Way by Condemnation

As noted above, the Russo right-of-way forms part of the eastern portion of the

railroad corridor at issue in the case currently before the court. The Russo right-of-way

measures a total of .41 acres, and is 25.33 feet wide along its northern border and 1.2

feet wide along its southern border, running north to south. To the east of, and adjacent

for the construction, location, and maintenance of the extension of its line of railroad from

Okeechobee, Florida to Miami, Florida” by Florida East Coast Railway.

14 The Florida East Coast Railway obtained the J. Pyles and J. Owens right-of-way in a

condemnation proceeding in the Dade County Circuit Court on November 21, 1924

against the Seminole Fruit & Land Company, that resulted in a final judgment

appropriating land to be used “as a right of way for the construction, location, and

maintenance of the extension of its line of railroad from Okeechobee, Florida to Miami,

Florida” by Florida East Coast Railway. The Castillo and Menendez plaintiffs refer to this

final judgment as the “J. Pyles, J. Owens Judgment” in their “Joint Stipulations Regarding

Title,” while the Hernandez and Lima plaintiffs refer to this judgment as the “Seminole

Fruit & Land Condemnation,” or the “Seminole Fruit & Land Company condemnation,”

respectively, in their cross-motions for partial summary judgment. The court refers to the

right-of-way as the J. Pyles and J. Owens right-of-way in this Opinion.

15 The Florida East Coast Railway obtained the Stanley right-of-way in a condemnation

proceeding in the Dade County Circuit Court on October 28, 1924 against R.S. Stanley

that resulted in a final judgment in favor of the Florida East Coast Railway, which stated

that the land obtained by the Florida East Coast Railway was to be used “as a right of

way for the construction, location, and maintenance of the extension of its line of railroad

from Okeechobee, Florida to Miami, Florida,” measuring a total of 1.9 acres, and is 1320

feet long running north to south, 50.54 feet wide at its northern border, and 74.67 feet

wide at its southern border. The Stanley right-of-way is not adjacent to any of the parcels

belonging to the Castillo, Menendez, Hernandez, or Lima plaintiffs.

16 While the land conveyed by the Holman deed constitutes a large portion of the railroad

corridor to the west of the properties located in the Zena Gardens subdivision, according

to the aerial map which the Castillo and Menendez plaintiffs included with their previous

filings, the Holman deed land does not overlap with any of the four rights-of-way.

Moreover, for all plaintiffs for whom the Holman deed is a relevant conveyance, at least

a portion of the railroad corridor adjacent to the plaintiffs’ properties is part of the Russo

right-of-way.

7

to, the Russo right-of-way are the respective parcels of land owned by the following nine

Castillo plaintiffs, as depicted on the Castillo plaintiffs’ aerial map17 of the railroad corridor:

• Lourdez Rodriguez

• Alberto Perez

• Mayra Lopez

• Niraldo Hernandez Padron and Mercedes Alina Falero

• Luisa Palencia and Xiomara Rodriguez

• Reinaldo F. Castillo

• Hugo E. and Concepcion V. Diaz as Co–Trustees of the Diaz Family Revocable

Trust

• South American Tile, LLC

• Gladys Hernandez

The Johnson right-of-way forms part of the eastern portion of the railroad corridor

at issue in the case currently before the court. The Johnson right-of-way measures

approximately .48 acres, and is 37.39 feet wide at its northern border and 25.33 feet wide

at its southern border, running north to south. The Johnson right-of-way is adjacent to the

properties of the following six Castillo plaintiffs, as depicted on plaintiffs’ aerial map of the

railroad corridor previously submitted to the court before the remand:

• Luis Crespo

• Jose Luis and Grace Barsello Napole

• Bernardo D. and Norma A. Manduley

• Danilo A. and Dora Rodriguez

• Avimael and Odalys Arevalo

• Dalia Espinosa, Daniel Espinosa and Sofira Gonzalez

According to the “Amended Joint Stipulations of Title” submitted after the remand and as

depicted on plaintiffs’ aerial map of the railroad corridor submitted before the remand, the

Johnson right-of-way is also adjacent to the properties of Menendez plaintiff Luis R.

Schmidt and Lima plaintiff Claro Lima. Moreover, the Johnson right-of-way lies between

the plaintiffs’ properties to which it is adjacent and the southern portion of the Stanley

right-of-way on the western edge of the railroad corridor.

The J. Pyles and J. Owens right-of-way forms part of the eastern portion of the

railroad corridor at issue in the case currently before the court. The J. Pyles and J. Owens

right-of-way is divided into two portions, a southern portion and a northern portion.

According to the aerial map previously submitted by the Castillo and Menendez plaintiffs,

the southern portion of the J. Pyles and J. Owens right-of-way shares the railroad corridor

with the Stanley right-of-way. As depicted on plaintiffs’ aerial map previously submitted

before the remand in Castillo and Menendez, and on the valuation map submitted with

the cross-motions for partial summary judgment currently before the court after the

17The Castillo plaintiffs’ properties which are adjacent to the Russo right-of-way, are not

identified on the aerial map submitted by the Menendez plaintiffs before the remand.

8

remand, the Stanley right-of-way covers the western portion of the railroad corridor, and

the southern portion of J. Pyles and J. Owens right-of-way covers the eastern portion of

the railroad corridor and is adjacent to the following plaintiffs’ parcels:

Castillo plaintiffs:

• Humberto J. and Josefa Marcia Diaz

• Jose F. and Dora A. Dumenigo

Menendez plaintiffs:

• Norma D. Gomez and Jose M. Martinez

• Nelson Menendez and Osvaldo Borras, Jr.

According to the parties’ “Joint Stipulations Regarding Title” filed in this court in

Hernandez and the valuation map attached to the motions for partial summary judgment

currently before the court after the remand, the southern portion of the J. Pyles and J.

Owens right-of-way is also adjacent to the property of Hernandez plaintiff Miriam

Hernandez.18 Moreover, the southern portion of the J. Pyles and J. Owens right-of-way

lies between the plaintiffs’ properties to which it is adjacent and the northern portion of

the Stanley right-of-way on the western edge of the railroad corridor.

According to the aerial map previously provided to the court by the Castillo plaintiffs

before the remand,19 and on the valuation map attached to the cross-motions for partial

summary judgment currently before the court after the remand, the northern portion of the

J. Pyles and J. Owens right-of-way is adjacent to the parcels for the following two Castillo

plaintiffs: Shops on Flagler Inc., and Gonzalo Padron Marino, Julia Garcia and Mayda

Rotella. Notably, as depicted on the plaintiffs’ aerial map previously submitted in Castillo

before the remand, the northern portion of the J. Pyles and J. Owens right-of-way is the

only portion of the railroad corridor at issue in which only one right-of-way covers the full

width of the railroad corridor, which is 100 feet.

The Plats of the Subdivisions and Plaintiffs’ Deeds

The land to the east of the right-of-way eventually became the properties of two

families, the Merwitzers and the Mosses, who would plat their lands as the Zena Gardens

18 While the claims in Alvarez are not considered in the current Opinion, according to the

“Amended Joint Stipulations Regarding Title” and the valuation map attached to the

cross-motions for partial summary judgment currently before the court, the J. Pyles and

J. Owens right-of-way is also adjacent to the property of the Alvarez plaintiff Eduardo and

Marilyn Alvarez.

19 Similar to the Russo right-of-way, the Castillo plaintiffs whose properties are adjacent

to the northern portion of the J. Pyles and J. Owens right-of-way are not identified on the

aerial map submitted by the Menendez plaintiffs before the remand.

9

and Princess Park Manor subdivisions, respectively. On September 30, 1947, Louis and

Rebecca Merwitzer platted a parcel of their land and called it the “Zena Gardens”

subdivision. According to the subdivision plat for Zena Gardens, which was attached to

the government’s previous cross-motions for partial summary judgment in Castillo and

Menendez before the remand and to which the plaintiffs do not take issue, the western

border of Zena Gardens is adjacent to the railroad corridor, which measures 100 feet wide

and is labeled “Florida East Coast Railway.” According to the respective deeds submitted

by the Castillo plaintiffs as attachments to their amended complaint,20 the respective

parcels of land owned by the following nine Castillo plaintiffs are located in the Zena

Gardens subdivision:

• Lourdez Rodriguez

• Alberto Perez

• Mayra Lopez

• Niraldo Hernandez Padron and Mercedes Alina Falero

• Luisa Palencia and Xiomara Rodriguez

• Reinaldo F. Castillo

• Hugo E. and Concepcion V. Diaz as Co–Trustees of the Diaz Family Revocable

Trust

• South American Tile, LLC

• Gladys Hernandez

According to the Menendez, Hernandez, and Lima plaintiffs’ deeds, none of the

Menendez, Hernandez, or Lima plaintiffs own property in the Zena Gardens subdivision.

The Zena Gardens subdivision plat states, in relevant part:

That Louis Merwitzer and Rebecca Merwitzer his wife owners of the S.E. ¼

of the S.E. ¼ of Section 2, Township 54 South, Range 40 East, Miami, Dade

County, Florida, excepting therefrom a strip of land off the westerly side

which is the right of way of the Okeechobee–Miami Extension of the Florida

20 As the court noted in the June 29, 2018 decision on the prior cross-motions for summary

judgment before the remand, after the original complaint in Castillo was filed, the

complaint was amended twice, the first time, on March 31, 2017, “to join an additional

twenty-two plaintiffs,” and the second time, on September 29, 2017, “to dismiss certain

plaintiffs, resulting in the current nineteen plaintiffs in Castillo.” Castillo v. United States,

138 Fed. Cl. at 716. As the court also noted in the June 29, 2018 Opinion, the Menendez

plaintiffs amended their complaint once, on January 19, 2018, after Castillo and

Menendez were consolidated, to join an additional plaintiff, resulting the three current

Menendez plaintiffs. See id. at 717. All Castillo and Menendez plaintiffs whose claims

were previously at issue in the June 29, 2018 Opinion remain parties to the current

litigation; no parties have been dismissed or joined in the Castillo and Menendez cases

in the time since the June 29, 2018 Opinion. Since the original filing of the Hernandez

and Lima plaintiffs’ claims on March 31, 2017, neither the Hernandez plaintiff nor the Lima

plaintiff have filed amended complaints.

10

East Coast Railway, have caused to be made the attached plat entitled

“Zena Gardens.”

The Streets, Avenues and Terrace as shown together with all existing and

future planting, trees and shrubbery there on are hereby dedicated to the

perpetual use of the Public for proper purposes reserving to the said Louis

Merwitzer and Rebecca Merwitzer, his wife, their heirs, successors or

assigns, the reversion or reversions thereof whenever discontinued by law.

On November 3, 1949, Erving and Harriett Moss platted a parcel of their land and

called it the “Princess Park Manor” subdivision. According to the subdivision plat for the

Princess Park Manor, previously submitted by the defendant in Castillo and Menendez

before the remand and to which the plaintiffs do not take issue, the western border of

Princess Park Manor is adjacent to the railroad corridor, which measures 100 feet wide

and is labeled “East R/W Line of F.E.C. Ry.” Princess Park Manor is directly north of Zena

Gardens, separated only by a street. According to the respective deeds submitted by the

plaintiffs, the respective parcels of land owned by the following remaining plaintiffs in

Castillo, and the plaintiffs in Menendez, Hernandez, and Lima are located in the Princess

Park Manor subdivision:

Castillo plaintiffs:

• Gonzalo Padron Marino and Julia Garcia; and Mayda Rotella

• Shops on Flagler, Inc.

• Jose F. and Dora A. Dumenigo

• Humberto J. and Josefa Marcia Diaz

• Luis Crespo

• Jose Luis and Grace Barsello Napole

• Bernardo D. and Norma A. Manduley

• Danilo A. and Dora Rodriguez

• Avimael and Odalys Arevalo

• Dalia Espinosa, Daniel Espinosa and Sofira Gonzalez

Menendez plaintiffs:

• Norma D. Gomez and Jose M. Martinez

• Nelson Menendez and Osvaldo Borras, Jr.

• Luis R. Schmidt

Hernandez plaintiff:

• Miriam Hernandez

Lima plaintiff:

• Claro Lima

11

The Princess Park Manor subdivision plat states, in relevant part:

That ERVING A.MOSS and HARRIETT E.MOSS his wife, owners of the

South ½ of the N.E. ¼, South of the Canal and East of the Florida East

Coast Right–of–Way, located in Sec. 2 TWP.54 South, RGE. 40 East, Dade

County Florida; being the land East of the Florida East coast Right–of–way

and between Flagler Street and the Tamiami canal and extending East to

Ludlum Road, ALSO The West ½ of the Northeast ¼ of the Southeast ¼

less the Florida East coast Right–of–way all in Sec. 2 Township 54 South

RGE.40 East, Dade County, Florida, Said Florida East coast Right–of–way

being the right-of-way of the Okeechobee Miami Extension of the Florida

East Coast Railway, have caused to made the attached Plat entitled

“PRINCESS PARK MANOR.”

The Streets, Avenues, Roads, Terraces, Courts and Alleys as shown

together with all existing and future planting, trees and shrubbery thereon

are hereby dedicated to the perpetual use of the public for proper purposes,

reserving to the said ERVING A.MOSS and HARRIETT E.MOSS, his wife

their heirs; successors or assigns, the reversion or reversions thereof

whenever discontinued by law.

(capitalization and emphasis in original). As noted above, the subdivision plats for both

the Zena Gardens and Princess Park Manor plats were previously submitted to the court

before the remand.

Between March 1977 and July 2016, all the plaintiffs in the above captioned cases

acquired title in their respective parcels of land in the Princess Park Manor and Zena

Gardens subdivisions. None of the deeds for any of the plaintiffs in Castillo, Menendez,

Hernandez, and Lima provide the measurements of the respective parcels. Instead, the

deeds for all plaintiffs in the above captioned cases state the particular subdivision in

which the parcel is located, the parcel’s “Lot” number in the subdivision, and reference

the particular subdivision plat in which the parcel is located. For example, the warranty

deed for Menendez plaintiff Norma D. Gomez and Jose M. Martinez states that on May

31, 2005:

[G]rantor [Margaret Ann Arguelles], for and in consideration of the sum of

TEN AND NO/100 DOLLARS ($10.00) and other good and valuable

considerations to said grantor in hand paid by said grantee [Norma D.

Gomez and Jose M. Martinez], the receipt whereof is hereby acknowledged,

has granted, bargained, and sold to the said grantee, and grantee's heirs

and assigns forever, the following described land, situate, lying and being

in Miami–Dade County, Florida to-wit:

Lot 15, Block 11, of PRINCESS PARK MANOR, according to the Plat

thereof, recorded in Plat Book 50, at Page 18, in the Public Records of

Miami–Dade County, Florida.

Parcel Identification Number: 0140020021710

12

(capitalization and emphasis in original; alterations added). Similarly, the warranty deed

for Castillo plaintiff Reinaldo F. Castillo states that on June 15, 1977:

[T]he grantor [Ramon and Maria Perez], for and inconsideration of the sum

of $10.00 and other valuable considerations, receipt whereof is hereby

acknowledged, hereby grants, bargains, sells, aliens, remises, releases,

conveys and confirms unto the grantee [Reinaldo F. and Margarita Castillo],

all that certain land situate in Dade County, Florida, viz:

Lot 8, in Block 11, of ZENA GARDENS, according to the Plat thereof,

as recorded in Plat Book 46, at Page 51, of the Public Records of Dade

County, Florida.

(capitalization and emphasis in original; alterations added). Each of the parcels of land

belonging to the plaintiffs is depicted, including the measurements thereof, on either the

Zena Gardens plat or Princess Park Manor plat. All of the parcels belonging to the

plaintiffs in Castillo, Menendez, Hernandez, and Lima are depicted on the subdivision

plats as being directly to the east of the railroad corridor, however, none of the parcels,

as depicted on the plats, extend onto the railroad corridor.

In 2004, service over the railroad corridor ceased when the Florida East Coast

Railway temporarily closed off a portion of the railway to perform emergency repair work

on a bridge at milepost 12.23+. The temporary closure blocked access to the railroad

corridor. When the section of the railroad opened again, shippers did not resume rail

service and, according to the combined environmental and historical report attached to

the Florida East Coast Railway’s abandonment petition before the United States Surface

Transportation Board (STB), which along with the combined environmental and historical

report was included as exhibits to the Castillo and Menendez plaintiffs’ previous

submissions to the court before the remand, there were “no new sources of potential local

traffic.”

The Florida East Coast Railway Begins the Abandonment Process of the

Railroad Corridor

On January 21, 2016, the Florida East Coast Railway began the process to

“abandon” the railroad corridor at issue by filing a verified notice of exemption with the

STB. The Florida East Coast Railway’s January 21, 2016 “Verified Notice of Exemption”

stated that the Florida East Coast Railway “plans to abandon the Line, salvage the track

and materials and convert the property to trail use.” On February 10, 2016, the STB

published the notice exemption in the Federal Register and the exemption became

effective on March 11, 2016. On October 31, 2016, Florida East Coast Industries, LLC

sent a letter to the STB requesting a “notice of interim trail use/rail banking” over the

railroad corridor and submitting its willingness to assume financial responsibility pursuant

to 49 C.F.R. § 1152.29 (2016). On November 1, 2016, the Florida East Coast Railway

sent a letter to the STB stating it “agree[d] to negotiate interim trail use/rail banking for the

Line with FECI [Florida East Coast Industries].” (alterations added). On November 21,

2016, the STB invoked section 8(d) of the Trails Act, 16 U.S.C. § 1247(d) (2012), and

13

issued its “DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT”

(NITU), authorizing the Florida East Coast Railway to negotiate a trail use agreement with

the Florida East Coast Industries. (capitalization in original). On July 18, 2017, the Florida

East Coast Railway notified the STB that it had entered a purchase sale agreement with

the Florida East Coast Industries for the “rail banking/interim trail use” of the rail line at

issue.

PROCEDURAL HISTORY

The plaintiffs in the Castillo and Menendez cases originally brought suit on

December 7, 2016, and December 12, 2017, respectively. The Menendez case was

originally assigned to Judge Thomas C. Wheeler of this court and was subsequently

transferred to the undersigned. The Menendez complaint raised the same issues of law

and fact as alleged by the Castillo plaintiffs, and the Menendez plaintiffs alleged they own

land underlying the same section of the railroad corridor at issue in the Castillo case. The

plaintiffs and defendant in both Castillo and Menendez were previously represented in

each case by the same attorneys of record,21 who filed a joint notice before this court on

February 23, 2018, stating that the “same issues of law and facts apply to both cases.”

This court previously ordered the two cases consolidated on January 12, 2018.

21 Davene Walker of the United States Department of Justice has been defendant’s

counsel of record for the Castillo and Menendez cases since the filing of each case. The

initial complaint in Castillo was filed by counsel of record Mark F. Hearne, II, then of Arent

Fox, LLP. On March 21, 2017, Lindsay S.C. Brinton, also of Arent Fox, LLP, moved to

substitute herself as counsel of record in Castillo, which the court granted the following

day. Following the substitution of Ms. Brinton in Castillo, the initial complaint Menendez

was filed by Ms. Brinton as counsel of record, then still of Arent Fox, LLP. Two days after

the initial Menendez complaint was filed, a Notice of Indirectly Related Case, referring to

Castillo, was filed in Menendez, however, Mr. Hearne was listed as the counsel of record

on that notice. A motion to substitute Ms. Brinton for Mr. Hearne as counsel of record in

Menendez was filed and granted on January 12, 2018. At the time the cases were

consolidated on January 12, 2018, all Castillo and Menendez plaintiffs were represented

by Ms. Brinton as counsel of record. Ms. Brinton remained counsel of record for both

Castillo and Menendez as of the time of filing the respective motions for reconsiderations

in those cases on July 30, 2018, and the notice of appeal in both Castillo and Menendez

on October 31, 2018. Mr. Hearne notified the court by a Notice of Change of Contact

Information on October 9, 2019, that he had left Arent Fox, LLP for a new firm, the True

North Law Group, LLC. At a time not indicated by the filings in Castillo and Menendez,

Ms. Brinton and Meghan S. Largent also left Arent Fox, LLP for Lewis Rice, LLC. Between

April 29, 2020 and May 5, 2020, Ms. Largent, James H. Hulme of Arent Fox, LLP, and

Mr. Hearne filed motions to substitute themselves as counsels of record for certain

individual Castillo and Menendez plaintiffs. The current arrangement of plaintiffs and

counsels of record, including affiliations of plaintiffs’ attorneys, is discussed below.

14

The plaintiffs in the Hernandez and Lima cases originally brought suit as co-

plaintiffs in one case, Hernandez, et al., v. United States, on March 31, 2017.22 The

Hernandez case was originally assigned to Judge Lydia Kay Griggsby of this court, was

reassigned to Judge Richard A. Hertling on June 21, 2019, and was subsequently

transferred to the undersigned on May 14, 2020. On April 16, 2021, this court severed the

claims of plaintiff Claro Lima from the claims of then pro se plaintiff Miriam Hernandez.

Ms. Hernandez had failed to appear at scheduled hearings, leading to the decision to

proceed as two distinct cases: Hernandez, Case No. 17-468L, and Lima, Case No. 17-

4680L. Plaintiff Miriam Hernandez subsequently retained counsel Meghan S. Largent of

Lewis Rice, LLC on May 7, 2021, and is now represented by the same counsel of record

as the plaintiff in Lima and certain Castillo and Menendez plaintiffs.23

In the complaints currently before the court, the Castillo and Menendez plaintiffs

allege they are “Florida landowners who are owed compensation for their property rights

22 Davene Walker of the United States Department of Justice has been the defendant’s

counsel of record for the Hernandez and Lima cases since those cases were originally

filed. The initial complaint in Hernandez was filed by counsel of record Cecilia Hagan

Stultz of Maglio, Christopher & Toale, PA. On January 29, 2018, Christina E. Unkel, also

of Maglio, Christopher & Toale, PA, filed a motion to substitute herself as counsel of

record in Hernandez, which was granted the same day. On April 11, 2019, Ms. Unkel filed

a motion to withdraw from the representation of Miriam Hernandez, and on April 24, 2019,

Ms. Largent of Lewis Rice, LLC filed a motion to substitute herself as counsel of record

for Claro Lima. Ms. Largent’s motion to substitute was granted on April 24, 2019, and Ms.

Unkel’s motion to withdraw was granted on April 29, 2019, after which point Ms.

Hernandez proceeded pro se until her hiring of Ms. Largent over two years later, after the

Lima case had been severed from Hernandez.

23 In the time since the plaintiffs in the above captioned cases filed their respective initial

complaints, the attorneys representing certain plaintiffs have shuffled on multiple

occasions as attorneys representing various clients have changed law firms. As of the

time of filing this Opinion, the plaintiffs are represented as follows. The following plaintiffs

are represented by James H. Hulme, with Laurel LaMontagne, of Arent Fox, LLP:

Castillo plaintiffs:

• Reinaldo Castillo

• Danilo and Dora Rodriguez

The following plaintiffs are represented by Mark F. Hearne, II, with Stephen S. Davis, of

True North Law, LLC, who were formerly attorneys at Arent Fox, LLP:

Castillo plaintiffs:

• Avimael and Odalys Arevalo

• Luis Crespo

• Hugo and Concepcion V. Diaz as Co-Trustees of Diaz Family Revocable Trust

• Bernard and Norma Manduley

• Jose Luis and Grace Barsello Napole

15

taken by the federal government as a result of its authorization that the right-of-way be

converted to a public recreation trail.” The Castillo and Menendez complaints state that

each of the Castillo and Menendez plaintiffs owned their property on November 21, 2016,

when the STB issued the NITU, and that each plaintiff’s “property abuts[24] and underlies

• Niraldo Hernandez Padron and Mercedes Alina Falero

• Luisa Palencia and Xiomara Rodriguez

• Alberto Perez

• Lourdez Rodriguez

• Shops on Flagler, Inc.

Menendez plaintiff:

• Nelson Menendez and Osvaldo Borras, Jr.

The following plaintiffs are represented by Meghan S. Largent, with Lindsay S.C. Brinton,

of Lewis Rice, LLC, who were formerly attorneys at Arent Fox, LLP:

Castillo plaintiffs:

• Humberto J. and Josefa Marica Diaz

• Jose F. and Dora A. Dumenigo

• Dalia Espinosa, Daniel Espinosa and Sofira Gonzalez

• Gladys Hernandez

• Mayra Lopez

• Gonzalo Padron Marino and Julia Garcia; and Mayda Rotella

• South American Tile, LLC

Menendez plaintiffs:

• Norma D. Gomez and Jose M. Martinez

• Luis R. Schmidt

Hernandez plaintiff:

• Miriam Hernandez

Lima plaintiff:

• Claro Lima

24 Plaintiffs state in their complaints in Castillo and Menendez that their respective

properties “abut” the railroad corridor. It appears, however, that both sets of plaintiffs use

the term “abut” interchangeably with “adjacent” in their filings in Castillo and Menendez.

In the parties’ “Joint Stipulations Regarding Title,” filed in both Castillo and Menendez

before the remand, the parties stated that the respective properties for both sets of

plaintiffs are “[a]djacent” to the railroad corridor. Likewise, the government states in its

cross-motion for partial summary judgment prior to the remand in Castillo and Menendez

that all of the plaintiffs’ properties are “adjacent” to the railroad corridor. (alteration added).

The plaintiffs in Hernandez and Lima state that their property is “adjacent to the

16

the former Railroad right-of-way, which is now subject to an easement for an interim

public-access trail and possible future railroad reactivation.” (alteration added). The

Castillo and Menendez plaintiffs claim that the government “took these Florida owners’

land for a public recreational trail by an order of the federal Surface Transportation Board

invoking a provision of the federal Trails Act.” The Castillo and Menendez plaintiffs also

claim that “when the federal government authorizes a public recreational trail across an

owner’s land, the fifth amendment requires the government to compensate the owner.”

The Castillo and Menendez plaintiffs seek “full fair-market value of the property taken by

the government on the date it was taken,” including “severance damage,” “delay”

damages, litigation costs and attorneys' fees, and “[s]uch further relief as this Court may

deem just and proper.” (alteration added).

In their original complaint, filed before the claims of the Hernandez and Lima

plaintiffs were severed, the Hernandez and Lima plaintiffs allege that they “are the fee

owners of real property in Miami Dade County, Florida,” that their land is “adjacent to the

abandoned railroad right-of-way,” and that “Plaintiffs’ predecessor owners granted

easements to FEC [Florida East Coast Railway] for the sole purpose of operating a

railroad, and not for any other general or recreational purpose.” (alteration added). The

Hernandez and Lima plaintiffs further allege that “[o]n November 21, 2016, the STB

issued an [sic] NITU for the Line,” which amounted to “[t]he appropriation of a new

easement for an interim public recreational trail,” that “is a taking of Plaintiffs’ property for

which the Fifth Amendment to the United States Constitution requires that the United

States pay just compensation to Plaintiffs.” (alterations added). The Hernandez and Lima

plaintiffs seek “just compensation for the value of their property taken by the federal

government,” which “includes compensation for the delay between the time their property

was taken, November 21, 2016, and when the federal government ultimately pays

Plaintiffs their compensation,” as well as “attorneys’ fees, costs, and expenses incurred

in bringing this action pursuant to the URA [Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970], 42 U.S.C. §4654(c).” (alteration added).

The parties in Castillo and Menendez filed “Joint Stipulations Regarding Title”

during earlier proceedings before remand, and the parties in Hernandez and Lima filed

“Joint Stipulations Regarding Title” after remand, on May 19, 2021 with respect to Ms.

Hernandez and on August 18, 2021 with respect to Mr. Lima. All parties have stipulated

to certain threshold issues. All parties agree that all plaintiffs owned their corresponding

parcels on November 21, 2016, when the STB issued the NITU, and that plaintiffs’

corresponding parcels are “[a]djacent” to the railroad corridor. (alteration added). The

parties in Castillo and Menendez also stipulate that the rights-of-way the Florida East

Coast Railway obtained through the four final judgments in the condemnation

proceedings were each an “[e]asement.” (alteration added). The parties in Hernandez

and Lima did not stipulate that the Florida East Coast Railway obtained the rights-of-way

as an easement, but in defendant’s filings in the Hernandez and Lima cases, defendant

acknowledged that “[a]ll of the condemnation orders granted the railroad easements over

abandoned railroad right-of-way” and do not use the phrase “abuts,” unlike the Castillo

and Menendez plaintiffs.

17

the subject lands, not fee simple title to those lands.” (emphasis in original; alteration

added).

On January 19, 2022, the parties filed “Amended Joint Stipulations” in Castillo,

Menendez, Hernandez, and Lima, as well as in Alvarez, each containing the same table

reflecting the claims of all plaintiffs whose claims are currently before the court, as well

as the claim of the Alvarez plaintiff. The table, reproduced below in the form provided by

the parties, displays each plaintiff's name, claim number (with respect to Castillo plaintiffs)

or case name and number (with respect to Menendez, Hernandez, Lima and Alvarez

plaintiffs), and parcel number of the plaintiff's parcel located in either the Zena Gardens

or Princess Park Manor subdivision. The table also displays the “Applicable RR [Railroad]

Conveyance” claimed by plaintiffs and defendant for each of the plaintiffs’ parcels, which

refers to one of the four condemnation proceedings.25 (alteration added). The table further

displays the “Nature of RR [Railroad] Ownership” as alleged by plaintiffs and defendant,

which refers to the interest the Florida East Coast Railway obtained in each of the

conveyances at issue. (alteration added). At present, plaintiffs claim that the “Nature of

RR [Railroad] Ownership” with respect to every conveyance is that of an easement, and

defendant claims that the “Nature of RR [Railroad] Ownership” with respect to every

conveyance is that of fee title. (alterations added). The table also indicates that each

plaintiff owned his or her particular parcel of land on the NITU date and states that each

of the plaintiffs’ parcels are “Adjacent to ROW [right-of-way].” (alteration added).

25 Prior tables of plaintiffs’ claims submitted by the parties included reference to the

Stanley judgment and Holman deed as applicable conveyances to certain plaintiffs. The

most recent chart joint submitted by the parties on January 19, 2022, however, does not

indicate that either the Stanley judgment or the Holman deed is an applicable conveyance

to any plaintiff in any of the above captioned cases.

18

Castillo, et al., v. United States, Case No. 16-1624L; Menendez, et al. v. United States,

Case No. 17-1931L; Hernandez v. United States, Case No. 17-468L; Lima v. United

States, Case No. 17-4680L; Alvarez v. United States, Case No. 21-610L

Claim Plaintiffs Parcel Owned Adjacent Applicable Applicable Nature of Nature of

Number Number Parcel to RR RR RR RR

(Castillo) on ROW [Railroad] [Railroad] [Railroad] [Railroad]

or Case NITU [right- Conveyance Conveyance Ownership Ownership

No. Date of- (Plaintiffs) (US) (Plaintiffs) (US)

way]

12 Gonzalo 01-4002- Yes Yes J. Pyles, J. 1937

Padron 002- Owens Quitclaim Easement Fee

Marino 0220 Judgment Deed (Bk

and Julia (Bk 24, Pg 1806, Pg

Garcia; 208) 127)

and

Mayda

Rotella

17 Shops on 01-4002- Yes Yes J. Pyles, J.

1937 Fee

Flagler, Inc. 002- Owens Quitclaim Easement

1780 Judgment Deed (Bk

(Bk 24, Pg 1806, Pg

208) 127)

21 Jose F. 01-4002- Yes Yes J. Pyles, J.

1937 Fee

and Dora 002- Owens Quitclaim Easement

A. 1730 Judgment Deed (Bk

Dumenigo (Bk 24, Pg 1806, Pg

208) 127)

22 Humberto 01-4002- Yes Yes J. Pyles, J.

1937 Fee

J. and 002- Owens Quitclaim Easement

Josefa 1720 Judgment Deed (Bk

Marcia (Bk 24, Pg 1806, Pg

Diaz 208) 127)

29 Luis 01-4002- Yes Yes W. Johnson 1937 Fee

Crespo 002- Judgment Quitclaim Easement

1650 (Bk 24, Pg Deed (Bk

207) 1806, Pg

127)

30 Jose Luis 01-4002- Yes Yes W. Johnson 1937 Fee

and Grace 002- Judgment Quitclaim Easement

Barsello 1640 (Bk 24, Pg Deed (Bk

Napole 207) 1806, Pg

127)

19

31 Bernardo 01-4002- Yes Yes W. Johnson 1937 Fee

D. and 002- Judgment Quitclaim Easement

Norma A. 1630 (Bk 24, Pg Deed (Bk

Manduley 207) 1806, Pg

127)

33 Danilo A. 01-4002- Yes Yes W. Johnson 1937 Fee

and Dora 002- Judgment Quitclaim Easement

Rodriguez 1610 (Bk 24, Pg Deed (Bk

207) 1806, Pg

127)

34 Avimael 01-4002- Yes Yes W. Johnson 1937 Fee

and Odalys 002- Judgment Quitclaim Easement

Arevalo 1600 (Bk 24, Pg Deed (Bk

207) 1806, Pg

127)

36 Dalia 01-4002- Yes Yes W. Johnson 1937 Fee

Espinosa, 002- Judgment Quitclaim Easement

Daniel 1580 (Bk 24, Pg Deed (Bk

Espinosa 207) 1806, Pg

and Sofira 127)

[Gonzalez

26]

43 Lourdez 01-4002- Yes Yes P. Russo 1937 Easement Fee

Rodriguez 001- Judgment Quitclaim

1370 (Bk 24, Pg Deed (Bk

83) 1806, Pg

127)

44 Alberto 01-4002- Yes Yes P. Russo 1937 Easement Fee

Perez 001- Judgment Quitclaim

1380 (Bk 24, Pg Deed (Bk

83) 1806, Pg

127)

45 Mayra 01-4002- Yes Yes P. Russo 1937 Easement Fee

Lopez 001- Judgment Quitclaim

1390 (Bk 24, Pg Deed (Bk

83) 1806, Pg

127)

26The table provided by the parties in their “Amended Joint Stipulations of Title” after

remand omits the surname “Gonzalez” from Castillo plaintiff Sofira Gonzalez.

20

46 Niraldo 01-4002- Yes Yes P. Russo 1937 Easement Fee

Hernandez 001- Judgment Quitclaim

Padron and 1400 (Bk 24, Pg Deed (Bk

Mercedes 83) 1806, Pg

Alina 127)

Falero

47 Luisa 01-4002- Yes Yes P. Russo 1937 Easement Fee

Palencia 001- Judgment Quitclaim

and 1410 (Bk 24, Pg Deed (Bk

Xiomara 83) 1806, Pg

Rodriguez 127)

49 Reinaldo F. 01-4002- Yes Yes P. Russo 1937 Easement Fee

Castillo 001- Judgment Quitclaim

1430 (Bk 24, Pg Deed (Bk

83) 1806, Pg

127)

50 Hugo E. 01-4002- Yes Yes P. Russo 1937 Easement Fee

and 001- Judgment Quitclaim

Concepcio 1440 (Bk 24, Pg Deed (Bk

n V. Diaz 83) 1806, Pg

as Co- 127)

Trustees of

the Diaz

Family

Revocable

[Trust27]

51 South 01-4002- Yes Yes P. Russo 1937 Easement Fee

American 001- Judgment Quitclaim

Tile, LLC 1450 (Bk 24, Pg Deed (Bk

83) 1806, Pg

127)

52 Gladys 01-4002- Yes Yes P. Russo 1937 Easement Fee

Hernandez 001- Judgment Quitclaim

1460 (Bk 24, Pg Deed (Bk

83) 1806, Pg

127)

27The table provided by the parties in their “Amended Joint Stipulations of Title” after

remand omits the word “Trust” from Castillo plaintiff Hugo E. and Concepcion V. Diaz as

Co-Trustees of the Diaz Family Revocable Trust.

21

Menendez, Norma D. 01-4002- Yes Yes J. Pyles, J. 1937 Easement Fee

Case No. Gomez and 002- Owens Quitclaim

17-1931 Jose M. 1710 Judgment Deed (Bk

Martinez (Bk 24, Pg 1806, Pg

208) 127)

Menendez, Nelson 01-4002- Yes Yes J. Pyles, J. 1937 Easement Fee

Case No. Menendez 002- Owens Quitclaim

17-1931 and 1690 Judgment Deed (Bk

Osvaldo (Bk 24, Pg 1806, Pg

Borras, Jr. 208) 127)

Menendez, Luis R. 01-4002- Yes Yes W. Johnson 1937 Easement Fee

Case No. Schmidt 002- Judgment Quitclaim

17-1931 1660 (Bk 24, Pg Deed (Bk

207) 1806, Pg

127)

Hernandez, Miriam 01-4002- Yes Yes J. Pyles, J. 1937 Easement Fee

Case No. Hernandez 002- Owens Quitclaim

17-468 1740 Judgment Deed (Bk

(Bk 24, Pg 1806, Pg

208) 127)

Hernandez, Claro Lima 01-4002- Yes Yes W. Johnson 1937 Easement Fee

Case No. 002- Judgment Quitclaim

17-468 [sic] 1590 (Bk 24, Pg Deed (Bk

207) 1806, Pg

127)

Alvarez, Eduardo 01-4002- Yes Yes J. Pyles, J. 1937 Easement Fee

Case No. and Marilyn 002- Owens Quitclaim

21-610 Alvarez 0260 Judgment Deed (Bk

(Bk 24, Pg 1806, Pg

208) 127)

(capitalization and emphasis in original; alterations and footnotes added).

The United States Court of Federal Claims’ June 29, 2018 Opinion Granting

Defendant’s Cross-Motions for Partial summary judgment

As detailed above, after plaintiffs filed their complaints, the Castillo plaintiffs twice

amended their complaint to join and voluntarily dismiss certain plaintiffs, the Menendez

plaintiffs amended their complaint once to join one plaintiff, and defendant filed answers.

The Castillo and Menendez plaintiffs moved for partial summary judgment as to the

government’s liability for taking their property without just compensation with respect to

the relevant easements making up portions of the railroad corridor. The government in

Castillo cross-moved for partial summary judgment with respect to the portion of the

railroad corridor conveyed by the Holman deed, stating that it was not liable for any

takings with respect to that portion of the railroad corridor because the Holman deed

granted fee simple title to the Florida East Coast Railway as to that portion of the railroad

22

corridor. See Castillo v. United States, 138 Fed. Cl. at 730 (“In Castillo, the government

has cross-moved for partial summary judgment ‘as to the railroad’s ownership of portions

of the rail line’ that the Florida East Coast Railway ‘acquired by [the Holman] deed.’”

(alteration in original)).28 The government further argued in both its cross-motions for

partial summary judgment before the remand in Castillo and Menendez that it was not

liable for any alleged takings of the railroad corridor at issue because the Castillo and

Menendez plaintiffs could not prove that they owned the land underlying the rights-of-way

at issue. See id. at 734 (“The government responds in its cross-motion for summary

judgment in Castillo that the plaintiffs ‘have failed to prove that they are the fee owners of

some or all of the portions of the railroad corridor acquired by condemnation.’”) and id. at

735 (explaining that “in Menendez, the government argues in its cross-motion for partial

summary judgment that the ‘plaintiffs cannot prove that they are the owners of portions

of the railroad corridor acquired by condemnation’”). Plaintiffs argued, for the first time in

their respective reply briefs in support of their motions for partial summary judgment

before remand, that under Florida law the “centerline presumption” provides that “‘[e]ach

landowner whose property borders the abandoned right-of-way is presumed by Florida

law to own the land underlying the right-of-way, up to the center line of the right-of-way.’”

Castillo v. United States, 138 Fed. Cl. at 734 (alteration added). The subdivision plats

which are also at issue in the cross-motions for partial summary judgment currently before

the court after remand were first relied on by defendant in support of its cross-motions for

partial summary judgment in Castillo and Menendez before the remand, and

subsequently by plaintiffs in support of their motions for reconsideration. Before the

remand, the court found that the Holman deed conveyed fee simple title to the Florida

East Coast Railway and that the nine Castillo plaintiffs who alleged their interests in the

land underlying the railroad corridor were in whole or in part derived from the Holman

deed had no cognizable property interest in the portion of the railroad corridor conveyed

in the Holman deed, and, therefore, that no taking occurred with respect to that land.29

See id.

28As this court previously explained in its June 29, 2018 Opinion before the remand, the

Castillo plaintiffs who had previously claimed an interest in the land conveyed by the

Holman deed “responded to the government’s cross-motion for partial summary judgment

as to the Holman conveyance that none of the Castillo plaintiffs are ‘seeking summary

judgment [in their motion for partial summary judgment] for any land described in the 1923

Holman Deed.’” Castillo v. United States, 168 Fed. Cl. at 731 (alteration in original). This

court further explained, however, that the relevant portion of the railroad corridor “is

comprised of both the Russo right-of-way and the result of the Holman conveyance,” and,

therefore, “whether these nine Castillo plaintiffs own the land underlying what was

included in the Holman conveyance is at issue.” Id.

29 As noted above, after the remand, no plaintiff with a claim currently before the court

alleges a property interest in the land conveyed by the Holman deed as the basis for their

claim in the above captioned cases, although certain plaintiffs alleged such an interest

when their claims were first filed in this court before the remand. All plaintiffs who

previously alleged an interest in the land conveyed by the Holman deed also previously

23

When evaluating the Castillo and Menendez plaintiffs’ argument regarding the

centerline presumption before the remand, this court interpreted the centerline

presumption under Florida law, and relied on a decision of the Supreme Court of Florida,

which had analyzed Florida law certified to it by the United States Court of Appeals for

the Federal Circuit, Rogers v. United States, 184 So. 3d 1087 (Fla. 2015), as well as other

Supreme Court of Florida precedents of Jacksonville, Tallahassee & Key West Railway

Co. v. Lockwood, 15 So. 327 (Fla. 1894), and Smith v. Horn, 70 So. 435 (Fla. 1915). As

this court explained in the June 29, 2018 Opinion, the centerline presumption “‘is a rule

of construction that is employed to aid in determining the grantor’s intent’ as to whether

the grantor intended to retain title to the land underlying the easement or pass title to his

grantees.” Castillo v. United States, 138 Fed. Cl. at 736 (quoting Rogers v. United States,

184 So. 3d at 1098). As the Supreme Court of Florida explained, the centerline

presumption holds “that where a street or highway is the boundary of a lot or piece of

land, that the owner of such land owns the soil to the center of such street or highway,

subject to the right of the public to pass and repass over and along it.” Fla. So. Ry. Co. v.

Brown, 1 So. 512, 513 (Fla. 1887). The centerline presumption is not absolute, however,

and, as this court held in its June 29, 2018 Opinion, the centerline presumption “can be

rebutted in certain circumstances.” Castillo v. United States, 138 Fed. Cl. at 736. This

court determined that

the center line presumption can be rebutted, for example, by evidence that

the grantor did not own the land underlying the easement at issue, or, if

there was ownership of such land, evidence that the grantor clearly

reserved title to the land, such that the adjoining landowner would have no

interest in the easement.

Id. at 738.

This court construed the plats of the two subdivisions in which the Castillo and

Menendez plaintiffs’ properties were located, consistent with the Florida District Court of

Appeal for the Second District’s decision in North Lauderdale Corp. v. Lyons, 156 So. 2d

690 (Fla. Dist. Ct. App. 1963), which held that “[t]he plat must be construed as a whole

and every part of the instrument be given effect” and that “the plat should be construed

fairly and reasonably with no part rejected as superfluous.” N. Lauderdale Corp. v. Lyons,

156 So. 2d at 692 (alteration added). With respect to the Zena Gardens plat, this court

determined that the language “excepting therefrom a strip of land off the westerly side

which is the right of way of the Okeechobee-Miami Extension of the Florida East Coast

Railway,” included in the plat, indicated that “the railroad corridor is not included in the

Zena Gardens subdivision,” and that the nine Castillo plaintiffs’ parcels “end at the edge

of the railroad corridor.” Castillo v. United States, 138 Fed. Cl. at 740. With respect to the

Princess Park Manor plat, this court determined that the language “‘East of the Florida

East Coast Right-of-Way’” and “‘less the Florida East Coast Right-of-Way,’” included in

the plat, indicated that “the railroad corridor is not included in the platted subdivision” and

that the ten Castillo and three Menendez plaintiffs’ parcels “end at the edge of the railroad

corridor.” Id. at 741. For these reasons, this court concluded that the centerline

alleged an interest in land underlying the Russo right-of-way, and continue to allege such

interests after the remand.

24

presumption was rebutted with respect to all Castillo and Menendez plaintiffs and that the

Castillo and Menendez plaintiffs had no cognizable interest in the railroad corridor.

Therefore, this court held that all Castillo and Menendez plaintiffs’ takings claims failed

as to the portion of the railroad corridor that the Florida East Coast Railway obtained

through the four condemnation proceedings in 1924. See id. at 740, 742. Accordingly,

this court granted the government’s cross-motions for partial summary judgment in

Castillo and Menendez, and denied the Castillo and Menendez plaintiffs’ respective

motions for partial summary judgment. See id. at 742.

Following this court’s decision on the parties’ cross-motions for partial summary

judgment, the Castillo and Menendez plaintiffs moved for reconsideration, see Castillo v.

United States, 140 Fed. Cl. at 593, challenging “‘whether this Court correctly applied the

centerline presumption,’” but did not seek reconsideration of the court’s Opinion with

respect to the Holman deed. See id. at 597-98. The Castillo and Menendez plaintiffs tried

to support their motions for reconsideration with the subdivision plats of the Zena Gardens

and Princess Park Manor subdivisions, which defendant previously produced in support

of its cross-motions for partial summary judgment before remand. The Castillo and

Menendez plaintiffs also submitted evidence to support their motions for reconsideration

in this court which was “not previously submitted by the Castillo and Menendez plaintiffs

when briefing their motions for summary judgment” prior to the court’s issuance of its June

29, 2018 Opinion, including the chains of title for Castillo plaintiff Reinaldo F. Castillo, in

the Zena Gardens subdivision, and Menendez plaintiff Nelson Menendez, in the Princess

Park Manor subdivision.30 See id. at 598. Chains of title for the properties of “the

remaining eighteen Castillo plaintiffs and remaining two Menendez plaintiffs” were not

submitted, which omission was “without explanation,” as this court noted in its Opinion

denying the motions for reconsideration. See id. The two chains of title submitted by

plaintiffs have subsequently been relied upon by defendant in support of its motions for

partial summary judgment currently under consideration after remand and are discussed

below.

Each of the deeds in the Zena Gardens chain of title, which plaintiffs first produced

in support of their motions for reconsideration, up to and including the 1946 Merwitzer

deed, conveyed a parcel of land approximately 40 acres in area, the size of the Zena

30 In addition to the chains of title, the Castillo and Menendez plaintiffs attempted to

support their motions for reconsideration in this court with two declarations, “a copy of

three sections of the 2012 Florida Uniform Title Standards,” and two deeds which were

duplicative of deeds in the chains of title. See Castillo v. United States, 140 Fed. Cl. at

598. The Castillo and Menendez plaintiffs put forth the declarations as authorities on

Florida law, which this court held “do not change the court’s June 29, 2018 conclusion.”

Id. at 603. This court explained that “[a]ny explanation or interpretation offered” in the

declarations “as to how the centerline presumption should be applied in the above-

captioned cases, however, is not binding on this court,” because “[i]t is the role of the

court to interpret and apply Florida State law in the above-captioned cases, as interpreted

by the Florida courts.” Id. at 602 (alteration added) (citing Chi. Coating Co., LLC v. United

States, 892 F.3d 1164, 1170 (Fed. Cir. 2018)).

25

Gardens subdivision once platted. The chain of title report for the Zena Gardens

subdivision contains the following deeds. Three deeds described the property conveyed

as “subject to” the Florida East Coast Railway right-of-way: the 1924 Russo deed, from

Paul and Lucy Russo to Antonio Lanese, described the property conveyed therein as

“SUBJECT TO: Judgment dated Oct. 28, 1924 in the case, Florida East Coast Railway

Company, a corp., vs. Paul Russo, et al. [sic],”31 (capitalization in original; alteration

added), while both the 1925 Lanese deed, from Antonio and Marie Lanese to the Lanese

Investment Company, and the 1927 Lanese deed, from the Lanese Investment Company

to Antonio Lanese, described the property conveyed therein as “subject to the right of

way of the Florida East Coast Railway.” The 1945 Hollett deed, from Carmen Lanese to

T.C. and Myrtle Hollett, described the land it conveyed as

less that certain strip of land off the Westerly portion of the above described

property, more particularly described as:

Said strip being bounded on the West by the West boundary line of above

mentioned fractional part of said Section, on the East by a line parallel to

and fifty (50) feet East of the center line of the Okeechobee-Miami

Extension of the Florida East Coast Railway as surveyed, and located, and

on the North and South by the respective boundary lines of said

aforementioned fractional part of said Section, said strip being twenty-five

and thirty-three one-hundredths (25.33) feet wide at the North end, and one

and two-tenths (1.2) feet wide at the South end, containing in all forty-one

one-hundredths (0.41) acres, more or less.

(capitalization in original). The 1945 Merwitzer deed, from T.C. and Myrtle Hollett to Louis

Merwitzer, the 1945 Central Construction deed, from Louis and Rebecca Merwitzer to

Central Construction Company, Inc., and the 1946 Merwitzer deed, from Central

Construction Company, Inc., to Louis Merwitzer, all contain nearly identical descriptions

of the property conveyed as the 1945 Hollett deed, with only slight variations such as the

placement and capitalization of the word “less;” the spelling out of “50,” “25.33,” “1.2,” and

“0.41;” and minor differences in capitalization, punctuation, spelling, and wording of the

descriptions. Following the 1946 Merwitzer deed, in 1947 a conveyance was made by

deed from Louis and Rebecca Merwitzer to Zena Gardens, Inc. in order to plat the Zena

Gardens subdivision, with the land conveyed thereby described by reference to the

attached Zena Gardens plat.

The Princess Park Manor chain of title, which plaintiffs first produced in support of

their motions for reconsideration, begins with three quitclaim deeds conveying property

to A. B. Small from W.J. and Mary Elle Weller, from L.A. and Mabel E. Lins, and from

Douglas and Theodora W. Nicholson, each recorded on December 7, 1925, and none of

31 The three deeds providing an identical description of the land conveyed with a

reference to the 1924 Russo judgment do not provide a citation to the 1924 Russo

judgment. Moreover, while a typewritten form memorializing the judgment is included in

the record before the court, the judgment, which was entered by the Circuit Court for Dade

County, Florida, in 1924, does not appear to be reported or otherwise available on legal

databases.

26

which refer to the Florida East Coast Railway right-of-way. Following the 1925 Small

deeds, the next conveyance was the 1934 Dallas Investment Company deed, from the

City of Miami to Dallas Investment Company, which described the land it conveyed as:

S1/2 of NE1/4 S of Canal less F. E. C. & S. A. F. right of way, and W1/2 of

NE1/4 of SE1/4, less F. E. C. right of way, less N. 35’ St. and less S. 35’

St., Section 2, Township 54 South, Range 40 East, in the City of Miami,

County of Dade, State of Florida.

(capitalization in original). The 1936 Long Company deed, from the Southern Drainage

District to The Long Company, described the land it conveyed as:

The West Half of the North-east Quarter of the South-east Quarter less the

Railway, all in Section Two, Township Fifty-four South, Range Forty East,

consisting of Thirty-five acres and Nineteen 11/100 acres respectively.

(capitalization in original). The 1947 Eristavi-Tchitcherine deed, from The Long Company

to Princess Lucy Eristavi-Tchitcherine, described the land it conveyed as:

The South one-half (S ½) of the Northeast one-quarter (NE ¼) South of the

Canal and East of the F.E.C. right-of-way, located in Section 2, Township

54-South, Range 40-East, Dade County, Florida; being the Land East of the

F.E.C. right-of-way and between Flagler Street and the Tamiami Canal and

extending East to Ludlam Road; also

The West one-half (W ½) of the Northeast one-quarter (NE ¼) of the

Southeast one-quarter (SE ¼) less the F.E.C. right-of-way, all in Section 2,

Township 54-South Range 40-East, Dade County, Florida, together with the

improvements thereon.

(capitalization in original). The 1949 Moss deed, from the Estate of Lucy Cotton Thomas

(identified in the prior deed as Princess Lucy Eristavi-Tchitcherine) to Erving A. Moss,

who would plat the Princess Park Manor subdivision, provided an identical description of

the land as the 1947 Eristavi-Tchitcherine deed, with exception of capitalization

differences, spelling differences such as “Northeast Quarter” instead of “Northeast one-

quarter (NE ¼)” and “Southeast Quarter” instead of “Southeast one-quarter (SE ¼),”

omitting “(W ½)” and certain hyphens, spelling out “Florida East Coast,” and omitting the

phrase “together with the improvements thereon.” (capitalization in original). The 1949

Moss deed was the final conveyance before the platting of the Princess Park Manor

subdivision in 1949.

In opposition to the Castillo and Menendez plaintiffs’ motions for reconsideration

of the court’s June 29, 2018 Opinion, and more than one and a half years after the Castillo

plaintiffs filed their original complaint, defendant produced, for the first time, a quitclaim

deed, executed May 6, 1937 and identified by defendant as a “tax deed” (the 1937

deed).32 The 1937 deed identifies two separate land conveyances involving the Southern

Drainage District, a local taxing authority, the first conveyance on August 7, 1933, and

32Because the 1937 deed is identified as a “tax deed” but memorializes a quitclaim

conveyance, the court identifies the deed as “the 1937 deed” to avoid confusion.

27

the second conveyance on May 6, 1937. According to the 1937 deed, the 1933

conveyance and the 1937 conveyance both concerned the same parcels of land.

According to the 1937 deed, “at a sale held by Bob Simpson, as Tax Collector of

Dade County, on the 7th day of August, 1933, to enforce the collection of the unpaid taxes

levied by said District for the year 1932,” the Southern Drainage District acquired interests

in certain parcels of land. The 1937 deed, however, does not specify if the Southern

Drainage District acquired fee simple or some other type of interest in the parcels of land

at the 1933 tax sale. Further, although the 1937 deed states that the 1933 tax sale was

held “to enforce the collection of the unpaid” drainage taxes for 1932, the 1937 deed does

not identify the parties who failed to pay the drainage taxes in 1932. Defendant has not

produced any records from the 1933 tax sale at any point in the litigation of the above

captioned cases.

Additionally, the 1937 deed memorializes a conveyance by the Southern Drainage

District to the Florida East Coast Railway on May 6, 1937. The 1937 deed provides:

This Indenture, Made this 6th day of May, A. D. 1937, between the

SOUTHERN DRAINAGE DISTRICT, a drainage district of the State of

Florida, created by Chapter 7599, Laws of Florida, Acts of 1917 and Acts

amendatory thereto, party of the first part, and Florida East Coast Railway,

A Florida Corporation St. Augustine [sic] of the County of St. Johns and

State of Fla., party of the second part:

WITNESSETH, that the said party of the first part, for and in consideration

of the sum of ONE DOLLAR ($1.00) AND OTHER VALUABLE

CONSIDERATION, in hand paid by the party of the second part the receipt

whereof is hereby acknowledged, has remised, released, and quit-claimed,

and by these presents does remise, release, and quit-claim unto the said

party of the second part, and his heirs and assigns forever, all the right, title,

interest, claim, and demand which the said party of the

# 193, 480, 482, 484, 662[33]

first part acquired at a sale held by Bob Simpson, as Tax Collector of Dade

County, on the 7th day of August, 1933, to enforce the collection of the

unpaid taxes levied by said District for the year 1932), in and to the following

described land, lying and being in the County of Dade and State of Florida,

to-wit:

A One Hundred Foot Strip across East Half of Section Two, Township Fifty-

four South, Range Forty East, Tallahassee Meridian, Fla.

Also- East Half of the North-west Quarter of the North-east Quarter, East of

the West line of the R/W in Section Twenty-three, Township Fifty-four

South, Range Forty East, Tallahassee Meridian, Fla.

33Defendant asserts that the numbers, typewritten between the lines of the original 1937

tax deed and reproduced above, “appear to represent the tax certificates previously sold

by the Tax Collector,” which plaintiffs have not challenged.

28

Also- A Strip as in Deed Book 410 at Page 85, in Section Twenty-three,

Township Fifty-four South, Range Forty East, Tallahassee Meridian, Fla.

Also- A Strip as in Deed Book 366 at Page 357, in Section Twenty-three,

Township Fifty-four South, Range Forty East, Tallahassee Meridian, Fla.

Also- F. E. C. R/y across South-west Quarter of the North-east Quarter of

the North-east Quarter of Section Twenty-one, Township Fifty-five South,

Range Forty East, Tallahassee Meridian, Fla.[34]

This deed acknowledges receipt of Southern Drainage District taxes for the

years of 1932, 1933, 1934, 1935, 1936 on the above named Lands.

TO HAVE AND TO HOLD the same, together with all and singular the

appurtenances thereunto belonging or in anywise appertaining and all the

estate, right, title, interest, and claim whatsoever of the said party of the first

part, either in law or equity, to the only proper use, benefit, and behoof of

the said party of the second part and his heirs and assigns forever.

(capitalization in original; alteration and footnotes added).

In their motions for reconsideration, the Castillo and Menendez plaintiffs argued

“that the court committed ‘clear error’ resulting in ‘manifest injustice’ when the court

concluded that both sets of plaintiffs do not own any of the land underlying the railroad

corridor.” Castillo v. United States, 140 Fed. Cl. at 600. The Castillo and Menendez

plaintiffs claimed that the chains of title they submitted in support of the motions for

reconsideration “‘demonstrate that the Moss and Merwitzer families did not “clearly

reserve title” to the land under the railroad right-of-way easement.’” Id. at 601. On October

30, 2018, this court issued an Opinion denying the Castillo and Menendez plaintiffs’

motions for reconsideration. The court identified three primary grounds for

reconsideration: “‘(1) an intervening change in the controlling law; (2) the availability of

34 According to the parties’ filings in the above captioned cases, including the aerial maps

submitted by the Castillo and Menendez plaintiffs before the remand, the Castillo,

Menendez, Hernandez, and Lima plaintiffs currently before the court own property only in

Section Two, Township Fifty-four South, Range Forty East. Only one description of land

in the 1937 deed is found within the same Section Two as plaintiffs’ properties, which is

the description of the “One Hundred Foot Strip across East Half of Section Two, Township

Fifty-four South, Range Forty East, Tallahassee Meridian, Fla.” Moreover, the other

Sections referred to in the 1937 deed are located miles away from the railroad corridor

currently at issue, and the lands described in the 1937 deed other than the “One Hundred

Foot Strip” in Section Two are not addressed in any other documents produced by

plaintiffs or defendant during the motions for reconsideration, during the appeal to the

Federal Circuit before the remand, or during the additional discovery period after the

remand. Of the remaining four descriptions of land stated in the 1937 deed, three

descriptions refer to lands in “Section Twenty-three, Township Fifty-four South, Range

Forty East,” and one description refers to land in “Section Twenty-one, Township Fifty-

five South, Range Forty East.” Accordingly, only the description of the “One Hundred Foot

Strip” in Section Two is relevant to the issues before the court on remand.

29

new evidence; and (3) the need to correct clear error or prevent manifest injustice.’” Id. at

599 (quoting Del. Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383

(Fed. Cir. 2010) (internal quotations omitted)). The court stated that “‘a motion for

reconsideration should not be based on evidence that was readily available at the time

the motion was heard.’” Id. at 600 (quoting Johnson v. United States, 127 Fed. Cl. 661,

664 (2016) (internal quotations omitted)). The court held that “the chains-of-title are public

records and, therefore, were available to the Castillo and Menendez plaintiffs when they

briefed the motions for summary judgment” and accordingly “should not have been left

for a post-decision motion for reconsideration.” Id. The court also addressed the merits of

the chains of title and determined that the language “less” and “East of,” used in the deeds

in the chains of title with reference to the railroad corridor, indicated the deeds did not

convey title to the railroad corridor. See id. at 601-02. The court further addressed the

Castillo and Menendez plaintiffs’ argument, asserted for the first time in their motions for

reconsideration, “that ‘[t]he description of the property conveyed in the Zena Garden [sic]

and Princess Park Manor plats is rightly understood under Florida law and land title

standards as a conveyance of the entire fee estate subject to the existing railroad

easement.’” Id. at 602 (emphasis and alterations in original). The court explained that “‘a

party may not raise an issue for the first time on reconsideration when the issue was

available to be litigated,’” id. (quoting CANVS Corp. v. United States, 116 Fed. Cl. 294,

300 (2014)), and held that the “plaintiffs’ newly raised arguments that the excepting

language in the Zena Gardens and Princess Park Manor plats means the subdivision is

‘subject to’ the railroad right-of-way” did not constitute “a basis for reconsideration of the

court’s June 29, 2018 Opinion” granting partial summary judgment to defendant. See id.

Additionally, the court addressed the Castillo plaintiffs’ argument “that the court

‘clearly erred when it granted summary judgment’ in favor of defendant regarding the

portion of the railroad corridor obtained by condemnation because the government did

not move for summary judgment as to this portion of the railroad corridor,” because, in

Castillo, defendant had “moved for summary judgment as to the portion of the railroad

corridor obtained through the Holman deed and not to the portion of the railroad corridor”

composed of the four rights-of-way. Id. at 604.35 The court explained that “‘[a] court may

. . . grant summary judgment in favor of the nonmoving party,’” id. (ellipsis in original;

alteration added) (quoting U.S. Sur. Co. v. United States, 83 Fed. Cl. 306, 309-10 (2008)),

and the court held that “[e]ven though defendant did not move for summary judgment as

to the portion of the railroad corridor obtained through condemnation, the Castillo plaintiffs

had adequate notice and opportunity to argue to the court as to why the subdivision plats

did not preclude their takings claims.” Id. at 605 (alteration added). For these reasons,

the court denied the Castillo and Menendez plaintiffs’ attempt to seek reconsideration on

the basis of evidence not previously before the court prior to the issuance of its June 29,

2018 Opinion, see generally Castillo v. United States, 138 Fed. Cl. 707, in particular, as

relevant to the above captioned cases, the subdivision chains of title produced by the

Castillo and Menendez plaintiffs. Accordingly, the court denied the motions for

reconsideration, because “the Castillo and Menendez plaintiffs have not presented this

35The Menendez plaintiffs did not make a similar argument with respect to the court’s

grant of partial summary judgment to the government in Menendez.

30

court with any proper grounds to reconsider its June 29, 2018 Opinion or the July 2, 2018

judgments entered in Castillo and Menendez.” Castillo v. United States, 140 Fed. Cl. at

606 (capitalization in original).

The plaintiffs in Castillo and Menendez appealed this court’s rulings on the prior

cross-motions for partial summary judgment, see generally Castillo v. United States, 138

Fed. Cl. 707, to the United States Court of Appeals for the Federal Circuit. See generally

Castillo v. United States, 952 F.3d 1311. The Federal Circuit on appeal paraphrased this

court’s holding as having been “that the only reasonable finding on the evidence in this

case was that the centerline presumption was overcome or was inapplicable.” Id. at 1315.

On appeal, the Castillo and Menendez plaintiffs argued that the United States Court of

Federal Claims had “misapplied the centerline presumption under Florida law” by

“improperly interpret[ing] the Zena Gardens and Princess Park Manor plats as reserving

a reversionary interest in the FEC right-of-way to the Merwitzers and Mosses, so that the

subsequent deeds to the subdivision parcels at issue did not grant any ownership of land

in the railroad corridor.” 36 Id. at 1319-20 (alteration added). “[I]n the absence of a contrary

indication under Florida law,” the Federal Circuit “conclude[d] that the centerline

presumption applies to railroad rights-of-way that serve as boundaries of a plot, including

a plot within a subdivision,” a conclusion this court had also reached in its earlier Opinion.

See id. at 1320 (alterations added). Applying the centerline presumption to the subdivision

plats, the Federal Circuit reached the conclusion that the language of the Zena Gardens

and Princess Park Manor plats is not sufficient to avoid the centerline presumption. See

id. at 1322-23. The Federal Circuit on appeal relied on Bischoff v. Walker, 107 So. 3d

1165 (Fla. Dist. Ct. App. 2013), a decision from the Florida District Court of Appeal for the

Fifth District, to determine that the “East of” language of the Princess Park Manor plat did

not rebut the centerline presumption because it was “nearly identical to the plat language”

“‘lying East of [the] Canal’” which the court in Bischoff held did not rebut the centerline

presumption. Castillo v. United States, 952 F.3d at 1322 (alteration in original) (quoting

Bischoff v. Walker, 107 So. 3d at 1166-68). The Federal Circuit further relied on Dean v.

MOD Properties, Ltd., 528 So. 2d 432 (Fla. Dist. Ct. App. 1988), also a decision from the

Florida District Court of Appeal for the Fifth District, to determine that the “less” language

of the Princess Park Manor plat and the “excepting” language of the Zena Gardens plat

also did not rebut the centerline presumption, because the plat language was “‘relevantly

similar to the language’” “‘less and except’” which did not rebut the centerline presumption

in Dean.37 See Castillo v. United States, 952 F.3d at 1322 (quoting Dean v. MOD Props.,

36 The Castillo and Menendez plaintiffs did “not challenge that aspect of the trial court’s

ruling” concerning the Holman deed on appeal, and, therefore, that portion of this court’s

previous Opinion on the cross-motions for partial summary judgment before appeal has

not been disturbed. See Castillo v. United States, 952 F.3d at 1317 n.2.

37The Federal Circuit also addressed the reservation language included in the subdivision

plats, but the Federal Circuit would only “assume, without deciding” that the plats rebutted

the centerline presumption with respect to the reservation of “the ‘Streets, Avenues and

Terrace’” in the Zena Gardens plat and of “the ‘Streets, Avenues, Roads, Terraces,

Courts, and Alleys’” in the Princess Park Manor plat. See Castillo v. United States, 952

F.3d at 1323. The reservations, the Federal Circuit noted, omitted the railroad corridor,

31

Ltd., 528 So. 2d at 432-33). The Federal Circuit concluded that this court had “erroneously

granted summary judgment in its original rulings” and that the subdivision plats did not

“contain clear expressions of exclusion of the railroad corridor from the subdivisions

whose parcels were to be conveyed to purchasers.” Id. at 1323.

With respect to the chains of title first produced by the Castillo and Menendez

plaintiffs in support of their motion for reconsideration, the Federal Circuit observed that

“[a]t least some of the pre-platting property documents to which we have been pointed

themselves use the FEC [Florida East Coast] right-of-way as a boundary.” Id. at 1324

(alterations added). The Federal Circuit, however, did not come to a conclusion with

respect to the significance of the plaintiffs’ chains of title, stating:

Interpreting such documents, like interpreting the [subdivision] plats

themselves, requires use of the centerline presumption to the extent it

applies. The trial court’s discussion of pre-platting issues in the

reconsideration order may have been colored by an understanding of the

presumption that we have determined to be incorrect in rejecting the trial

court’s original summary-judgment ruling.

Id. (footnote omitted). In a footnote appended to the above quoted material, the Federal

Circuit also analyzed the 1937 deed which defendant had produced for the first time in

opposition to the motions for reconsideration:

Under the summary-judgment standard requiring evidence to be viewed

favorably to the nonmoving party, see Dairyland Power Coop. v. United

States, 16 F.3d 1197, 1202 (Fed. Cir. 1994), the 1937 deed indicates, at

most, that the FEC [Florida East Coast] Railway fell behind on its drainage-

tax payments owed to the District and that, to clear the debt, the FEC

Railway paid the unpaid drainage taxes for 1932-1936 and received from

the District, in return, the quitclaim deed reflecting the clearance and

removal of the District’s tax lien. Under Florida law, the 1937 quitclaim deed

conveyed only such “title or interest as possessed by the grantor [here, the

Southern Drainage District] at the time of the making of the deed.” See

Florida East Coast Ry. Co. v. Patterson, 593 So. 2d 575, 577 (Fla. Dist. Ct.

App. 1992). Moreover, “the execution of a quitclaim deed, without more,

does not necessarily import that the grantor possesses any interest at all

and if the grantor has no interest in the land described at the time of the

conveyance, the quitclaim conveys nothing to the grantee.” Miami Holding

Corp. v. Matthews, 311 So. 2d 802, 803 (Fla. Dist. Ct. App. 1975). The

government has not presented evidence that the Southern Drainage District

had ownership interests in the corridor land at the time of the quitclaim deed.

Accordingly, the evidence does not support the government’s summary-

judgment position that the FEC Railway acquired fee title through the 1937

quitclaim deed.

which the Federal Circuit stated “confirms the absence of a reservation by the grantors

as to the railroad corridor.” Id.

32

Castillo v. United States, 952 F.3d at 1324 n.6 (second alteration in original). The Federal

Circuit “remand[ed] the case for further proceedings” only “with respect to the portions of

the FEC [Florida East Coast] Railway right-of-way related to the condemnation orders,”

“including any appropriate further development of the factual record,” including “such

record development as is appropriate” on the issue of whether “the Merwitzers and

Mosses did not own the corridor land now at issue when they filed their plats.” Id. at 1325

(alterations added). As described above, the Federal Circuit did not disturb this court’s

holding with respect to the fee simple title conveyed by the Holman deed, which did not

implicate the centerline presumption. The Federal Circuit stated that, in remanding the

case, it would “not prejudge what conclusion may be justified on remand, whether or not

the evidentiary record is supplemented.” Id.

Following the remand of the Castillo and Menendez cases to this court, the case

of Hernandez, et al., v. United States, Case No. 17-468L, in which the Hernandez and

Lima plaintiffs were initially co-plaintiffs, was transferred to the undersigned. The parties

proceeded to engage in additional discovery to supplement the evidentiary record “as is

appropriate,” see Castillo v. United States, 952 F.3d at 1325, with respect to the question

of whether the Merwitzers and Mosses owned the land at the time of the platting of the

Princess Park Manor and Zena Gardens subdivisions that now constitutes the railroad

corridor at issue. As noted above, the parties engaged in discovery with the exception of

the Hernandez plaintiff Miriam Hernandez, who at the time of the remand was proceeding

pro se, failed to appear at scheduled hearings, and did not participate actively in the

additional discovery on remand, and the Alvarez plaintiff, who had agreed to wait while

the remand was proceeding.

During the additional discovery period after remand, defendant stated that it had

“located two additional documents that confirm the nature of the 1937 tax deed,” and

produced both documents for the first time. The first document defendant produced for

the first time during the additional discovery period on remand is a quitclaim deed,

executed July 16, 1938 by the Florida East Coast Railway and its receivers (the 1938

quitclaim deed). The 1938 quitclaim deed memorializes a conveyance from the Florida

East Coast Railway to the Southern Drainage District. The 1938 quitclaim deed provides:

THIS INDENTURE, Made this 16th day of July A. D. 1938, between

FLORIDA EAST COAST RAILWAY COMPANY, a corporation organized

and existing under the laws of the State of Florida, party of the first part,

William R. Kenan, Jr., and Scott M. Loftin as Receivers of the properties of

said Florida East Coast Railway Company, and not individually, parties of

the second part, and SOUTHERN DRAINAGE DISTRICT, a drainage

district organized and existing under the laws of the State of Florida, party

of the third part:

WITNESSETH:

That the said party of the first part, for and in consideration of the sum of

One Dollar ($1.00) to it in hand paid by the said party of the third part, the

receipt whereof is hereby acknowledged, has granted, remised, released

and quit-claimed, and by these presents doth grant, remise, release and

quit-claim unto the said party of the third part, its successors and assigns

33

forever, all the right, title, interest, claim and demand which the said party

of the first part hath in and to the following described lot, piece or parcel of

land, situate, lying and being in the County of Dade and State of Florida, to

wit:

All that part of the East half of Section 2, Township 54 South, Range 40

East, except a strip of land one hundred feet wide used as right of way for

Florida East Coast Railway, the center line of said one hundred foot strip

being described as follows:

Beginning at a point in the north line of Section 2, which is 1265 feet west

of its Northeast corner and continuing thence southerly across the East half

of said Section 2 to a point in the south line thereof which is 1353.1 feet

west of the southeast corner of said Section.

The land hereby quit-claimed not now being held or required for railroad

purposes.

TO HAVE AND TO HOLD the same together with all and singular the

appurtenances thereunto belonging or in anywise appertaining, and all the

estate, right, title, interest and claim whatsoever of the said party of the first

part, either in law or equity, to the only proper use, benefit and behoof of the

said party of the third part, its successors and assigns forever.

And the parties of the second part, as evidencing their consent, approval

and authorization of the quit-claim and release of the above described

property by the party of the first part to the party of the third part, join in the

execution of this Indenture.

(capitalization in original).

The second document defendant produced for the first time during the additional

discovery period on remand is an affidavit executed September 20, 1938 by the President

and Secretary of the Southern Drainage District (the 1938 affidavit), who had previously

been signatories to the 1937 deed. In the 1938 affidavit, the affiants swore:

1. On May 6, 1937, a tax deed was issued by the said SOUTHERN

DRAINAGE DISTRICT to the FLORIDA EAST COAST RAILWAY

COMPANY, wherein the said Drainage District quit-claimed its rights

acquired by the purchase on August 7, 1933, for unpaid taxes levied by said

Drainage District for the year 1932 in and to the following described land:

A strip 100’ across East one-half (1/2) of Section 2, Township 54

South Range forty (40) East, Tallahassee Meridian, Florida (also

other lands);

34

that the above described description of the property conveyed was an error

in that the said SOUTHERN DRAINAGE DISTRICT intended to convey the

following described land:

A strip of land 100’ wide used as right-of-way for Florida East Coast

Railway, passing across the East one-half (1/2) of Section 2,

Township 54 South Range forty (40) East, Tallahassee Meridian,

Florida;

that the error occurred by reason of the fact that said quit-claim deed failed

to state that said property deeded was the said right-of-way of the Florida

East Coast Railway;

2. That on the 16th day of July, 1938, the said FLORIDA EAST COAST

RAILWAY COMPANY, a Florida corporation, WILLIAM R. KENAN, JR. and

SCOTT M. LOFTIN, as Receivers of the properties of the said FLORIDA

EAST COAST RAILWAY COMPANY, did execute a quit-claim deed to the

said SOUTHERN DRAINAGE DISTRICT, reconveying all of the property

hereinabove described, save and except that which was intended to be

deeded by the said original quit-claim deed heretofore mentioned;

3. That the said SOUTHERN DRAINAGE DISTRICT has no claim of title

whatsoever against any part of the East half of Section 2, Township 54

South, Range 40 East, and that it makes this affidavit, by its said officers,

for the purpose of clearing and quieting any cloud upon the title of the said

land which may have been raised by the original deed made by it to the

FLORIDA EAST COAST RAILWAY COMPANY or by the reconveyance by

the said FLORIDA EAST COAST RAILWAY COMPANY to the said

SOUTHERN DRAINAGE DISTRICT of all of said property, save and except

that originally intended to have been deeded; and that the purpose of this

affidavit is to permit the conveyance of all of said land heretofore clouded

by said deeds, without the necessity of the making of several quit-claim

deeds to the individual owners of the said land and by this affidavit the said

SOUTHERN DRAINAGE DISTRICT does herewith estop itself from

claiming any right, interest or title in and to the land lying in the East half of

Section 2, Township 54, South, Range 40 East, other than its right to levy

and collect taxes against said land in accordance with the statutes of the

State of Florida, and to acquire further deeds of conveyance to said property

for non-payment of Southern Drainage District taxes.

(capitalization in original). The 1938 affidavit appears to have been intended by the

affiants to clarify the 1937 and 1938 conveyances memorialized in the 1937 deed and

1938 quitclaim deed, respectively. Neither the 1938 quitclaim deed nor the 1938 affidavit

indicate whether the interest “originally intended to have been deeded” in 1937 was fee

simple title. The 1938 quitclaim deed and 1938 affidavit were the only new pieces of

evidence produced during an extensive post remand discovery and then submitted by

35

defendant following the remand, which had not been before this court when this court’s

earlier Opinions were issued, or before the Federal Circuit when it reviewed this court’s

earlier rulings. Plaintiffs did not submit additional evidence during the post remand

discovery period.

After discovery on remand, defendant filed two motions for partial summary

judgment38 pursuant to Rule 56(a) and (c) of the United States Court of Federal Claims

(RCFC) (2021), first, with respect to the claims of the Castillo and Menendez plaintiffs,

and second, with respect to the claims of the Hernandez and Lima plaintiffs, who at that

time had not yet been severed and were proceeding as co-plaintiffs in Hernandez. In the

first motion for partial summary judgment on remand, defendant moves for partial

summary judgment with respect to the claims of the Castillo and Menendez plaintiffs

arguing that defendant has rebutted the centerline presumption by demonstrating “that

FECR [Florida East Coast Railway] acquired fee title from the 1937 tax deed to the subject

railroad corridor,” as well as that the plaintiffs “have no property interest in that portion of

the corridor” at issue. In the second motion, defendant moves for partial summary

judgment with respect to the Hernandez and Lima plaintiffs, making identical arguments

to those made in its motion for partial summary judgment in Castillo and Menendez,

except that the defendant’s motion regarding the Hernandez and Lima plaintiffs is

concerned only with the railroad corridor adjacent to Princess Park Manor, the subdivision

in which plaintiffs Miriam Hernandez and Claro Lima own property.

In support of its motions for partial summary judgment on remand, defendant

argues that the 1937 deed, which defendant produced for the first time in opposition to

plaintiffs’ motions for reconsideration, indicates that the Florida East Coast Railway

“acquired fee simple title to the subject railroad corridor from Southern Drainage District,”

and tries to rely on the 1938 quitclaim deed and 1938 affidavit, which defendant produced

for the first time during the additional discovery period on remand, as well as a Florida

statute, Chapter 12406 of the Florida Acts of 1927 (the 1927 Florida statute), to “confirm

the nature of the 1937 tax deed.” After two rounds of supplemental briefing, defendant

further identified Florida statutes enacted in 1917, 1929, and 1931, all concerning the

Southern Drainage District, to try to further support its argument that the 1937 deed

conveyed fee simple title to the Florida East Coast Railway. Defendant additionally argues

that the Florida East Coast Railway’s fee simple ownership of the railroad corridor is

evidenced by the deeds in the subdivision chains of title, which plaintiffs first produced in

support of their motions for reconsideration, the language of which deeds defendant

argues changed following the conveyance memorialized in the 1937 deed (1937

conveyance) to exclude the railroad corridor from conveyance. Accordingly, defendant

argues that it “has rebutted the centerline presumption.” Of the evidence relied upon by

38Defendant styles its motions as motions for summary judgment, not for partial summary

judgment. Because the sole issue before the court on remand is the application of the

centerline presumption to plaintiffs’ claims, because the other issues of liability previously

decided by this court’s earlier decisions were affirmed by the Federal Circuit, and also

because damages are yet to be considered, the court refers to defendant’s motions as

motions for partial summary judgment.

36

defendant to support its motions for partial summary judgment after the remand, the 1937

deed and the chains of title were previously submitted to this court at the time of the

briefing of the earlier motions for reconsideration in Castillo and Menendez, and the 1938

quitclaim deed, 1938 affidavit, and 1917, 1927, 1929, and 1931 Florida statutes were

produced for the first time during the additional discovery periods after the remand.

The plaintiffs in Castillo, Menendez, Hernandez, and Lima did not produce

additional documents during the additional extended discovery period after remand.

Plaintiffs in Castillo and Menendez jointly filed a response to defendant’s motion for partial

summary judgment on remand with respect to their claims and a cross-motion for partial

summary judgment pursuant to RCFC 56(a) on the issue of the government’s liability.

Then-Hernandez plaintiff, now Lima plaintiff, Claro Lima also filed a separate response to

defendant’s motion for partial summary judgment in Hernandez and a cross-motion for

partial summary judgment pursuant to RCFC 56(a) on the issue of the government’s

liability.39 On May 19, 2021, after the severing of Claro Lima’s claims and the creation of

the Lima case, Hernandez plaintiff Miriam Hernandez filed her own response to

defendant’s motion for partial summary judgment in Hernandez and cross-moved for

partial summary judgment pursuant to RCFC 56(a) on the issue of the government’s

liability, making arguments consistent with those made by the Lima plaintiff. As a result

of the severing of Miriam Hernandez and Claro Lima’s claims, plaintiffs in the above

captioned cases filed a total of three cross-motions for partial summary judgment on

remand: one from the Castillo and Menendez plaintiffs, one from the Hernandez plaintiff,

and one from the Lima plaintiff.

The Castillo and Menendez plaintiffs’ cross-motion, the Hernandez plaintiff’s

cross-motion, and the Lima plaintiff’s cross-motion make similar, though not identical,

arguments. All plaintiffs argue in their cross-motions on remand that the Federal Circuit

on appeal held that neither the language of the subdivision plats nor the 1937 deed was

proof that plaintiffs’ predecessors-in-interest did not own the land underlying the railroad

corridor. The Castillo and Menendez plaintiffs argue that the 1938 quitclaim deed and

1938 affidavit “produced on remand do nothing to support a different outcome.” The

Hernandez and Lima plaintiffs in their cross-motions for partial summary judgment

similarly argue that on remand “[t]he government has put forth no evidence that rebuts”

the centerline presumption. (alteration added). All plaintiffs in their cross-motions for

partial summary judgment after remand argue that summary judgment must be entered

in their favor with respect to liability on the basis of defendant’s failure to rebut the

centerline presumption. All plaintiffs, therefore, argue that the court should deny the

government’s motions and find that, because the centerline presumption has not been

rebutted, the government is liable for taking plaintiffs’ land up to the centerline of the

railroad corridor, and the court should “proceed to determine” the just compensation owed

to the plaintiffs.

In its combined responses to the plaintiffs’ cross-motions for partial summary

judgment and replies in support of its own motions for partial summary judgment on

39As noted above, on April 16, 2021, the court severed the claims of Claro Lima and

Miriam Hernandez and created two cases, Lima and Hernandez.

37

remand, defendant acknowledges that unless defendant shows that the Florida East

Coast Railway obtained fee simple title to the railroad corridor in 1937, “the centerline

presumption would likely allow Plaintiffs to be the presumed owners of a portion of the

former railroad right-of-way.” (capitalization in original). Although defendant appears to

acknowledge that its relied-upon evidence is unclear as to the nature of the 1937

conveyance, defendant argues that the court need not

speculate as to what occurred almost ninety years ago. All material facts

are known; there was a tax sale and a tax deed memorializing the sale was

recorded. Under Florida law, as described in the United States’ motion, the

1937 tax deed is sufficient on its own to show that (1) the Southern Drainage

District acquired title to the subject lands as a result of the tax sale and (2)

the FECR [Florida East Coast Railway] acquired the fee simple estate to

the disputed corridor through the deed. The 1938 affidavit and quitclaim

deed further confirm that FECR acquired fee title to the entire 100’ strip of

land that comprised the former railroad corridor.

(alteration added).

The Castillo, Menendez, Hernandez, and Lima plaintiffs argue in their replies40 in

support of their cross-motions for partial summary judgment on remand that, “[w]hile the

exact circumstances surrounding the execution of the 1937 quitclaim deed are unclear,

the evidence available demonstrates that the unrecorded 1937 quitclaim deed was most

likely a product of a bankrupt railroad’s failure to pay drainage taxes assessed on its right-

of-way.” (alteration added). Although plaintiffs acknowledge the lack of clarity presented

by the evidence in the record before the court on remand, plaintiffs argue that “even

viewing the facts in a light most favorable to the government,” a phrase that appears to

misstate the standard for a decision on a motion for summary judgment, the evidence

presented by the government “cannot constitute proof of the railroad’s ownership of the

fee estate in the land.” After an opportunity for extended discovery after remand, the

parties’ cross-motions for partial summary judgment after remand have been fully briefed

with multiple rounds of supplemental briefing to address issues identified by the court

submitted as well.

DISCUSSION

As an initial matter, plaintiffs respond to defendant’s motion for partial summary

judgment and argue that the mandate issued by the United States Court of Appeals for

the Federal Circuit when remanding Castillo and Menendez to this court “forecloses” the

arguments with respect to rebutting the centerline presumption which defendant makes

in its motions for partial summary judgment on remand, and plaintiffs argue that the issues

raised by defendant “were already decided by the Federal Circuit.” Defendant responds

to plaintiffs, arguing that plaintiffs mischaracterize the mandate issued by the Federal

Circuit when remanding Castillo and Menendez to this court, and defendant argues that

“[t]he Federal Circuit did not remand this case for judgment to be entered in favor of

Plaintiffs,” but rather, “the Federal Circuit remanded to this Court for further consideration”

40Instead of filing a separate reply brief, the Hernandez plaintiff decided to adopt the reply

brief filed by the Lima plaintiff as her own.

38

of whether the centerline presumption could be rebutted “with or without further

development of the record.” (alteration added). Defendant characterizes the mandate as

an “open-ended remand” which “plainly authorizes the Court to consider the additional

evidence presented by the United States.” The Federal Circuit has explained that, when

a lower court must interpret the mandate of an appeals court on remand, “both the letter

and the spirit of the mandate must be considered,” and “[o]nly the issues actually

decided—those within the scope of the judgment appealed from, minus those explicitly

reserved or remanded by the court—are foreclosed from further consideration.” Engel

Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir. 1999) (alteration added).

While plaintiffs are correct that the Federal Circuit held “that, under Florida law, the

centerline presumption applies to the railroad right-of-way context of the present case,”

Castillo v. United States, 952 F.3d at 1321, and that the Federal Circuit determined that

the Zena Gardens and the Princess Park Manor subdivision plats did not rebut the

centerline presumption, see id. at 1322, the mandate of the Federal Circuit on remand

does not prohibit defendant’s arguments in its motions for partial summary judgment. As

discussed above, the Federal Circuit ordered “[f]urther proceedings, including such record

development as is appropriate” and the Federal Circuit specifically did “not prejudge what

conclusion may be justified on remand, whether or not the evidentiary record is

supplemented.” Id. at 1325 (alteration added). Accordingly, the Federal Circuit did not

“actually decide[]” whether the centerline presumption would be rebutted on remand. See

Engel Indus., Inc. v. Lockformer Co., 166 F.3d at 1383 (alteration added). Rather, the

Federal Circuit explicitly remanded the question of whether the centerline presumption

would be rebutted, including, “as is appropriate,” with an expanded factual record, to this

court after discovery. See Castillo v. United States, 952 F.3d at 1325. Moreover, while

defendant tries to rely on the 1937 deed and subdivision chains of title, first produced

following the court’s June 29, 2018 Opinion, see generally Castillo v. United States, 138

Fed. Cl. 707, defendant now also tries to rely on the 1938 quitclaim deed, the 1938

affidavit, discussed above, and the historical Florida statutes from 1917, 1927, 1929, and

1931, which were first identified by the defendant following remand and in supplemental

briefing to the cross-motions on remand. As defendant’s arguments in its motions for

partial summary judgment after the remand rely on additional evidence produced after

remand, and defendant’s arguments focus on the ownership of the railroad corridor land

prior to the platting of the subdivisions, the Federal Circuit’s mandate on remand does not

preclude this court from addressing the arguments made in defendant’s motions for partial

summary judgment after remand. Additionally, the court now re-considers the question of

whether the evidence rebuts the centerline presumption, as a result of an expanded

evidentiary record after the Federal Circuit’s remand of the above captioned cases, the

subsequent additional discovery conducted by the parties after the remand as well as the

supplemental briefing opportunities afforded to the parties. The conclusion reached in this

court’s decision after the remand is the result of the evidentiary material produced on

remand, as explained by the arguments offered in the parties’ cross-motions for partial

summary judgment after remand and the supplemental briefs filed in support thereof, and

are discussed below.

RCFC 56 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

39

to judgment as a matter of law.” RCFC 56(a); Fed. R. Civ. P. 56(a) (2023) (alteration

added); see also Young v. United Parcel Serv., Inc., 575 U.S. 206, 231 (2015); 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); Anderson v. United States,

23 F.4th 1357, 1361 (Fed. Cir. 2022); Shell Oil Co. v. United States, 7 F.4th 1165, 1171

(Fed. Cir. 2021); Authentic Apparel Grp., LLC v. United States, 989 F.3d 1008, 1014 (Fed.

Cir. 2021); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir.), reh’g and reh’g en

banc denied (Fed. Cir. 2014); 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); 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); Capitol

Indem. Corp. v. United States, 162 Fed. Cl. 388, 397 (2022); King v. United States, 159

Fed. Cl. 450, 461 (2022); Desert Sunlight 250, LLC v. United States, 157 Fed. Cl. 209,

222 (2021).

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); BASF Corp. v. SNF Holding

Co., 955 F.3d 958, 963 (Fed. Cir. 2020); 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.

607, 611 (2011); 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

40

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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Marriott Int’l Resorts, L.P. v.

United States, 586 F.3d at 968; 3rd Eye Surveillance, LLC v. United States, 151 Fed. Cl.

49, 54 (2020) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

at 587); Pfizer Inc. v. United States, 149 Fed. Cl. 711, 715 (2020) (quoting Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. at 587). 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.

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 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 Lab’ys, Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied

(Fed. Cir. 2001), cert. 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., Ltd. 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., Inc. 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., Ltd. 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 795, 807 (Fed. Cir. 1999).

“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.

41

2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; Univ. South Florida

v. United States, 146 Fed. Cl. 274, 280 (2019).

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., Inc. 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; 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);

Massey v. Del Lab’ys, Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997); 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); Allstate Ins. Co.

v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); 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); Beard v. United States, 125

Fed. Cl. 148, 156 (2016); Two Shields v. United States, 119 Fed. Cl. 762, 775 (2015),

aff’d sub nom. Ramona Two Shields v. United States, 820 F.3d 1324 (Fed. Cir. 2016).

In the above-captioned 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 S. Grande View Dev. Co., Inc. v. City of Alabaster, Ala., 1 F.4th

1299 (11th Cir. 2021), and 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

42

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).

“[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

(alteration added) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984));

see also Acceptance Ins. Cos. Inc. 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, 579 U.S. 902 (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 Fishermen’s Finest, Inc. v. United States, No. 2021-

2326, 59 F.4th 1269, 2023 WL 1807477, at *4 (Fed. Cir. Feb. 8, 2023); 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

43

Fishermen’s Finest, Inc. v. United States, 59 F.4th 1269, 2023 WL 1807477, at *4 (“‘First,

the court determines whether the claimant has identified a cognizable Fifth Amendment

property interest that is asserted to be the subject of the taking.’” (quoting Acceptance

Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed. Cir. 2009))); 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);

see also Fishermen’s Finest, Inc. v. United States, 59 F.4th 1269, 2023 WL 1807477, at

*4 (“‘Second, if the court concludes that a cognizable property interest exists, it

determines whether that property interest was “taken.”’” (quoting Acceptance Ins. Cos. v.

United States, 583 F.3d at 854)).

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.

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 (alterations added) (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.

44

The STB has authority to regulate most railroad lines in the United States. See 49

U.S.C. § 1302 (2018).41 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 Behrens v. United States, No. 2022-1277,

2023 WL 1944933, at *1 (Fed. Cir. Feb. 13, 2023) (citing 49 U.S.C. §§ 10502, 10903); 49

C.F.R. § 1152.50 (2022). “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), holding modified by Hardy v. United States, 965 F.3d 1338, 1349 (Fed.

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

“clarifies the legal standard for ‘the timing of a NITU-based taking’ under Caldwell [391

F.3d at 1235] and its progeny” (quoting Caquelin v. United States, 959 F.3d at 1370) such

that “‘a NITU does not effect a taking if, even in the absence of a NITU, the railroad would

not have abandoned its line (a necessary prerequisite for termination of the easement

under state law) during the period of the NITU’” (quoting Caquelin v. United States, 959

F.3d at 1363)).

“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), holding modified by Hardy v. United States, 965 F.3d

at 1349 (recognizing that Caquelin v. United States “acknowledges that ‘other language

in Caldwell’ and its progeny,” including Barclay, 443 F.3d at 1371 (citing Caldwell v. United

States, 391 F.3d at 1235), “‘uses a shorter formulation’” for the timing of a NITU-based

taking which is a “‘shorthand’” not reflecting the actual but-for rule of timing (quoting

Caquelin v. United States, 959 F.3d at 1372)). Section 8(d) of the Trails Act, codified at

16 U.S.C. § 1247(d) (2018), “allows a railroad to negotiate with a state, municipality, or

private group (the ‘trail operator’) to assume financial responsibility for operating the

railroad right of way as a recreational trail.” See Behrens v. United States, 2023 WL

1944933, at *1 (citing Preseault I, 494 U.S. at 6-7); 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), holding modified by Hardy v. United States, 965 F.3d at

1349 (recognizing that Caquelin v. United States “acknowledges that ‘other language in

Caldwell’ and its progeny,” including Bright, 603 F.3d at 1276 (citing Caldwell v. United

States, 391 F.3d at 1235), “‘uses a shorter formulation’” for the timing of a NITU-based

41The statute at 49 U.S.C. § 1302 was previously found at 49 U.S.C. § 702 in the 2012

United States Code. The old section 702 was moved to the current section 1302 in

December 2015. See Surface Transportation Board Reauthorization Act of 2015, Pub. L.

114-110, § 3(a)(3), 129 Stat. 2228, 2228.

45

taking which is a “‘shorthand’” not reflecting the actual but-for rule of timing (quoting

Caquelin v. United States, 959 F.3d at 1372)). If the railroad and an authorized trail

provider42 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) (2022)

(“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.”

(alteration added); Behrens v. United States, 2023 WL 1944933, at *1-2 (quoting Caldwell

v. United States, 391 F.3d at 1230); Biery v. United States, 753 F.3d at 1285 (“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.” (alteration added) (citing Citizens Against Rails–

to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001))); 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 Behrens v. United

States, 2023 WL 1944933, at *2 (quoting 16 U.S.C. § 1247(d)); 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

42 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) (ellipsis added).

46

easement granted to the railroad under state property law is not broad

enough to encompass a recreational trail. See Preseault [v. United States],

100 F.3d [1525,] 1552 [Fed. Cir. 1996) (“Preseault II”)]; 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 (alterations added); see also Behrens v.

United States, 2023 WL 1944933, at *2 (quoting Preseault v. United States, 100 F.3d

1525, 1550 (Fed. Cir. 1996) (Preseault II)); Caquelin v. United States, 959 F.3d at 1364;

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 1015, 1023-24 (Fed. Cir. 2010), reh’g and reh’g en banc denied,

646 F.3d 910 (Fed. Cir. 2011), holding modified by Hardy v. United States, 965 F.3d at

1349 (recognizing that Caquelin v. United States “acknowledges that ‘other language in

Caldwell’ and its progeny,” including Ladd, 630 F.3d at 1023 (citing Caldwell v. United

States, 391 F.3d at 1235), “‘uses a shorter formulation’” for the timing of a NITU-based

taking which is a “‘shorthand’” not reflecting the actual but-for rule of timing (quoting

Caquelin v. United States, 959 F.3d at 1372)))); 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 II, 100 F.3d at 1533 (ellipsis added). 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

47

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 Behrens v. United States, 2023 WL 1944933, at

*2 (quoting Caldwell v. United States, 391 F.3d at 1229, and Preseault II, 100 F.3d at

1550); Caquelin v. United States, 959 F.3d at 1364 (stating that “establishment of a trail

under the Trails Act results in a Fifth Amendment taking when the original easement

granted to the rail carrier under state property law is not sufficiently broad in scope to

encompass recreational trail use”); Chi. Coating Co., LLC v. United States, 892 F.3d at

1170 (citing Ellamae Phillips Co. v. United States, 564 F.3d at 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 at 1019 (alteration added); 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. However, as Justice O’Connor succinctly pointed out in her

concurring opinion [in Preseault I], 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 (alteration added) (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 Behrens v.

United States, 2023 WL 1944933, at *2 (“These cases depend upon state law and the

facts of the particular land grants.”); Hardy v. United States, 965 F.3d at 1344 (citing Chi.

Coating Co., LLC v. United States, 892 F.3d at 1170); 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

This text is long and has been trimmed here. Open the source document for the complete record.