# Petition for Writ of Certiorari — Glosemeyer v. Missouri-Kansas-Texas Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0421%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1016 ## Text 0 89-5 64 No. CPH F SPAMOL, JR, C4 i»? ee aol IN THE Supreme Court of the United States OCTOBER TERM, 1989 MAURICE AND DOLORES GLOSEMEYER, et al., Petitioners, vS. MISSOURI-KANSAS-TEXAS RAILROAD, et al., Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT PETITION FOR WRIT OF CERTIORARI MICHAEL M. BERGER* of FADEM, BERGER & NORTON A Professional Corporation 12424 Wilshire Boulevard Post Office Box 250050 Los Angeles, Califomia 90025 (213) 207-2727 Attorneys for Petitioners Maurice and Dolores Glosemeyer, et al. *Counsel of Record ‘ ' j , Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510 ‘a5 QUESTIONS PRESENTED The questions in this case, presented in a different procedural posture, are now pending before the Court in Preseault v. ICC, Ne. 88-1076 (Certiorari granted April 24, 1989; oral argument set for November 1, 1989), regarding the Constitutionality of 16 USC §1247(d) (the “rails-to-trails” scheme). 1. With Certiorari granted in Preseault, should Certiorari be granted in this case (or should considera- tion of Certiorari be deferred pending a decision in Preseault) either to: © @ ensure a result compatible with this Court’s decision in Preseault, or @ provide a case which raises the same Constitu- tional issues as Preseault, but in a different procedural posture, if Preseault is determined not to be the appropriate vehicle for this Court’s adjudication (as happened during the last decade with other regulatory taking cases)? 2. When Congress enacts a statute which purports to undo settled state property law, by an after-the-fact redefinition of abandonment of an easement or by pre-empting state property law regarding the abandon- ment of easements, does the statute violate the Fifth Amendment’s Taking Clause? 3. When Congress passes a law which effects an unconstitutional taking of private property for public use and prohibits the expenditure of any funds unless ex- pressly appropriated by Congress, is declaratory or injunctive relief an available remedy, or is the property owner restricted to, or even permitted, an action for compensation? 4. Is the “railbanking” concept a smokescreen for an unconstitutional taking of property for other (non- rail) public use when use of the program must be fi preceeded by an ICC finding that the right-of-way is not needed for future railroad use, inclusion of an abandoned right-of-way in the trail program is solely at the discre- tion of state agencies or private groups, not the Interstate Commerce Commission, and the “rail-to-trail” conver- sion decisions have nothing to do with potentially reactivating rail service? 5. Does the deferential standard of review used in this case by the District Court and the Court of Appeals conflict with the standard of review announced in Nollan v. California Coastal Commn. (1987) 483 US 825, i.e., careful scrutiny of government actions which take private property? 6. If an otherwise rational and valid Congressional enactment takes private property for public use without compensation, may the enactment be invalidated as violating the Taking Clause of the Fifth Amendment? 7. When Congress passes a law which retroactively alters the terms of contracts between citizens in a way which transfers property rights from one group of citizens to the public for public use, has that Congres- sional impairment of contract obligations denied the holders of the contract rights substantive due process of law? 8. May a state agency, pursuant to authority pur- portedly granted by a federal statute, act without restraint to violate the Just Compensation Clause of the Fifth Amendment or the Impairment of Contracts Clause of Article 1, §10 of the Constitution? - iii - PARTIES TO THE PROCEEDING The parties are: Plaintiffs (Petitioners): Maurice and Dolores Glosemeyer; Fred and Alwera Brodbeck; Richard and Esther Burgess; John and Marjorie Dohr; Clarence and Onita Duenke; Ada Haase; Roy and Phyllis Haase; Wayne and Maureen Heck; Bernard Hellebusch; Elmer and Regina Hellebusch; James and Patricia Hellebusch; Mrs. Bernard Moellering; Alvin Roewe; Werner Roewe; James and Carla Schwoeppe; Donald and Delores Vitt; Jay and Nancy Walk, Jr.; Clarence Bergman; Harold Blaylock; Maurine Bluhm; Clara Boessen; Ralph and Mildred Brandt; Anne Buckley; Roy Cary; Kenneth and Loretta Burre; Walter and Helen Burre; Albert and Esther Dickson; Charles Dilthey; Denis Engemann; Gerald Engemann; Bernard and Geraldine Eichelberger, Sr.; Glen and Eleta Eichhorn; Sidney and Nadine Eldringhoff; Irven and Margaret Ewing; Hattie Farris; Bruce Florea; Andrew and Emilie Gerke; Anton and Alice Gerke; Herbert Gerke; Roy and Helen Gramlich; Clifford and Rosaline Haid; Norma and Edward Hasselman; Erwin and Alberta Heck; Linda and Gordon Heck; Marie and Leroy Heidbreder; Earl and Gladys Heitmann; Gary and Patty Heldt; Randy and Kendall Kircher; Leroy Kircher, Jr.; John and Barbara Knaus; Randall Kollmeyer; Roman and Leona Kuchem; Leonard and Isabel Lang; Thomas and Lana Langford; Carl Lensing; Allan Lietzke; Earl Mallinckrodt; James and Evalane Meyer; John Morr; Walter and Edna Nadler; L.W. Niewald; J.M. Potter; Layton Rehmeier; Alan and Mary Richter; Wilbur Rothgeb; Bill Rudloff, Hulda Rueff; Herbert Schmid; Marvin Schupp; Wilbur Schuster; Clara Siegel; Harold and Bonnie Siegel; Mary Sly; Jim and Stephanie Sneed; John and Mary Sneed; Robert Snoddy; Earl Summers, Cleo Tinsley; Terry - iv - Twenter; Price and Edna Vaughan; B.J. Wessing; Charles Wessing; Laura Willenbring; John and Susan Williamson, Jr.; Wilfred and Carol Wissman; Frank Pierson; Clifford Sapp; Brenda Reeder, Alfred Beckmeyer; Clifford Nahler; Robert Sapp; Marvin Sapp; Ina Mae Sapp; Bud Holiman; Amy Easley; Edward and Gloria Belt; Charles and Aurelia Bottenmuller; Bertha Hampton; John Reeder; Sharon Beeler; Thomas Douglass; and Douglass Farms, Inc.; Anthony Aholt, Bernard and Virginia Altheuser; Albert Bates; Helen Bennett; Donald Dothage; Albert Eichhorn; Elda Flatt; Elmer Friedric; Lawerence and Anna Gerke; Norman Gerke; Harold & Geralyn Gloe; David & Tammy Goebel; Donald & Viola Gordon; Elmer Gregory; Harrell Harvey; James Harvey; Alma Horner; William and Elsie Hunt; John and Gladys Miller; May Miller; John and Ethel Nolle; Eugene and Mary Lou Renfrow; James and Dorothy Roddy; Norbert and Louise Schuster; Steve and Debbie Schuster; Lyonel and _ Irene Schweerkotting; Leonard Struckhoff; Henry, Sr. and Theresa Struckhoff; Clyde and Sarah Twenter; Raymond and Helen Twillman; Earl Wessing; Laura Carpenter; Ryland Kessinger and Ellen Kessinger; Walter Moore and Dorothy Moore; Daniel L. Schlafly; Katherine Walsh and Edward Waish, Jr. Defendants and Intervening Defendants (Respondents): Missouri-Kansas-Texas Railroad, Missouri Department of Natural Resources, an agency of the State of MO; Frederick A. Brunner, Director Missouri Department of Natural Resources, Conservation Federation of MO; National Wildlife Federation; the Rails to Trails Con- servancy; the Lewis and Clark Nature Trail Foundation; the Sierra Club; the Paralyzed Veterans of America; BICYCLE USA; the Lewis and Clark Heritage Foundation; the American Hiking Society; the Katy MO River Trail Association; the American Rivers Conser- vation Council; United States -V- TABLE OF CONTENTS QUESTIONS PRESENTED PARTIES TO THE PROCEEDING TABLE OF AUTHORITIES OPINIONS BELOW JURISDICTION CONSTITUTIONAL AND STATUTORY PROVISIONS STATEMENT OF THE CASE A. Procedural Summary and Overview B. Factual Statement C. The “Rails-to-Trails” Scheme Page iil 1X - vi - Page REASONS FOR GRANTING THE WRIT 12 THIS COURT HAS ALREADY ACKNOWLEDGED THE IMPOR- TANCE OF THE ISSUES AT BENCH BY GRANTING CERTIO- RARI IN PRESEAULT 13 THERE IS CONFUSION AND CON- FLICT AMONG THE CIRCUIT COURTS AND THE ICC ABOUT THE CONSTITUTIONALITY OF CONGRESS’ “RAILS-TQ-TRAILS” SCHEME 14 A GOVERNMENTAL PROGRAM WHICH TAKES PRIVATE PROP- ERTY FOR PUBLIC USE WITH- OUT COMPENSATION VIOLATES THE FIFTH AMENDMENT 15 - Vil - Page THE COURT OF APPEALS’ ANAL- YSIS OF A STATUTE WHICH CONCEDEDLY TAKES PRIVATE PROPERTY FOR PUBLIC USE VIO- LATES THE STANDARD OF REVIEW ESTABLISHED BY THIS COURT IN WNOLLAN v. CALIF. COASTAL COMMN. 17 A. When an Exercise of Govern- mental Power Abridges Private Property Rights, the Action is Subject to Close Examination 18 B. The “Rails-to-Trails” Scheme Lacks Sufficient Basis Under the Commerce Clause 21 CONCLUSION 25 - Vill - Page APPENDIX A DECISION OF THE UNITED STATES COURT OF APPEALS FOR’ THE EIGHTH CIRCUIT, DATED JULY 5, 1989 A-1 APPENDIX B DECISION OF THE UNITED STATES DISTRICT COURT, E.D. MISSOURI, DATED MAY 10, 1988 B-1 APPENDIX C DECIS:ON OF INTERSTATE COM- MERCE COMMSSION, DATED MARCH 6, 1987 C-1 APPENDIX D DEED, DATED APRIL 4, 1884 D-1 - ik - TABLE OF AUTHORITIES Page Cases Board of Regents v. Roth (1972) 408 US 564 10 City of Columbia v. Baurichter (Mo App 1987) 729 SW 2d 475 4 Connecticut Trust for Historic Preservation v. ICC (2d Cir 1988) 841 F 2d 479 23 First English Evangelical Lutheran Church v. County of Los Angeles (1987) 482 US 304 i ae Hodel v. Irving (1987) 481 US 704 15, 26 Hooe v. U.S. (1910) 218 US 322 16 Kansas City Area Transp. Auth. v. 4550 Main Assoc. (Mo App 1986) 742 SW 2d 182 4 Leiter v. U.S. (1926) _ 271 US 204 16 Littlefield v. City of Afton (8th Cir 1986) 785 F 2d 596 24 Maiatico v. U.S. (DC Cir 1962) 302 F 2d 880 16 Page Missouri-Kansas-Texas Ry. Co. v. Freer (Mo App 1959) 321 SW 2d 731 4 National Wildlife Federation v. ICC (DC Cir 1988) 850 F 2d 694 5, 11-14, 23, 24 Nollan v. California Coastal Commn. (1987) 483 US 825 17-19, 21, 24 Pollnow v. State Dept. of Natural Resources (Wis 1979) 276 NW 2d 738 22 Preseault v. ICC (2d Cir 1988) 853 F 2d 145, cert. granted 57 USLW 3704 5, 11-14, 25, 26 Prune Yard Shopping Center v. Robins (1980) 447 US 74 10 Regional Rail Reorganization Act Cases (1974) 419 US 102 15, 16 Ruckelshaus v. Monsanto Co. (1984) 467 US 986 10, 15 Schnabel v. County of DuPage (Ill App 1981) 428 NE 2d 671 22 Southern Cal. Financial Corp. v. U.S. (CtCl 1980) 634 F 2d 521 16 Sutton v. U.S. (1921) 256 US 575 16 University City v. Chicago, R.I. & P. Ry. Co. (Mo 1941) 149 SW 2d 321 4 - Xi - Washington State Dept. of Game v. ICC (9th Cir 1987) 829 F 2d 877 Webb’s Fabulous Pharmacies, Inc. v. Beckwith (1980) 449 US 155 ICC Decisions Chicago and North Western Transp. Co. — Abandonment and Discontinuance of Trackage Rights (1988) ICC Docket No. AB-1 (Sub-no. 219)(1988 ICC Lexis 365) Chicago and North Western Transp. Co. — Abandonment (1988) ICC Docket No. AB-1 (Sub-No. 215)(1989 ICC Lexis 23) Exemption of Out of Service Lines (1986) 2 ICC 2d 146 Missouri-Kansas-Texas Railroad Co. — Abandonment — In St. Charles, Warren, Montgomery, Callaway, Boone, Howard, Cooper and Pettis Counties, Mo. ICC Docket No. AB-102 (Sub-No. 13) (March 6, 1987) Missouri Pacific Railroad Co. — Abandonment (1988) ICC Docket No. AB-3 (Sub-No. 57) (1988 ICC Lexis 384) Rail Abandonments; Use of Rights-of-Way as Trails; Supplemental Trails Act Procedures (1989) 54 Fed Reg 8011 Page 23 10 23 23 23 Ba, 83 14, 23 - Xil - Page Rail Abandonments — Use of Rights-of-Way 10, 13 as Trails (1986) 2 ICC 2d 591 20, 22, 23 Statutes 16 USC §1241 et seq. 8 16 USC §1247(d) 2, 4,9, 15, dy ae 16 USC §1249 6, 16 28 USC §1254(1) 2 49 USC §10903 22 Pub. L. 98-11, §101 3, 6, 16 Regulations 49 CFR §1152.29 24 49 CFR §1152.29(C)(2) 24 Constitution United States Constitution Article I, §8 ey | Fifth Amendment a 5, 01, ts, eee Legislative Records House Report 98-28 8, 10 Senate Report 98-1 8 - Xill - Publications Best, The Supreme Court Becomes Serious About Takings Law: Nollan Sets New Rules For Exactions (1987) 10 Zon. & Plan. L. Rep. 153 Bosselman & Stroud, The Current Status of Development Exactions (1987) 14 Fla. Env. & Urb. Issues 8 Comment, The Use of Discontinued Railroad Rights-of-Way as Recreational Hiking and Biking Trails: Does the National Trails System Act Sanction Takings? (1988) 33 St. Louis U.L.J. 205 Lawrence, Regulatory Takings: Beyond the Balancing Issues (1988) 20 The Urban Lawyer 389 Mandelker, Land Use Law (2d ed 1988) §2.23 Marsh & Rosenthal, At Long Last, The Supreme Court Speaks Out on the “Taking” Issue (1987) 5 Cal. Real Prop. J. 1 Peterson, Land Use Regulatory “Takings” Revisited: The New Supreme Court Approaches (1988) 39 Hast. L.J. 335 Page 19 19 19 19 19 19 - X1V - Page Taub, Exactions, Linkages, and Regulatory Takings: The Developer’s Perspective (1988) 20 The Urban Lawyer 515 19 The Supreme Court, 1986 Term — Leading Cases (1987) 101 Harv. L. Rev. 119 19 No. In The SUPREME COURT OF THE UNITED STATES October Term, 1989 MAURICE AND DOLORES GLOSEMEYER, et al., Petitioners, VS. MISSOURI-KANSAS-TEXAS RAILROAD, et al., Respondents. PETITION FOR WRIT OF CERTIORARI The Petitioners respectfully pray that a Writ of Certiorari issue to review a judgment of the United States Court of Appeals for the Eighth Circuit. OPINIONS BELOW The decision of the Court of Appeals (App A) is reported as Glosemeyer v. Missouri-Kansas-Texas R.R. (8th Cir 1989) 879 F 2d 316. The decision of the District Court (App B) is reported as Glosemeyer v. Missouri-Kansas-Texas R.R. (ED Mo 1988) 685 F Supp 1108. mm JURISDICTION The decision of the Eighth Circuit Court of Appeals was entered on July 5, 1989. The jurisdiction of this Court is invoked under 28 USC §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS Fifth Amendment, United States Constitution: “““ . nor {shall any person] be deprived of life, liberty, or property, without due proc- ess of law; nor shall private property be taken for public use, without just compen- sation.” United States Constitution, Article I, §8: “The Congress shall have power to ... regulate commerce with foreign nations, and among the several states .. .” Trails Act Amendment, 16 USC §1247(d): “Railroad rights-of-ways. The Secretary of Transportation, the Chairman of the Interstate Commerce Commission, and the Secretary of the Interior, in administering the Railroad Revitalization and Regulatory Reform Act of 1976, shall encourage State and local agencies and private interests to establish appropriate trails using the provi- sion of such programs. Consistant with the purposes of that Act, and in furtherance of the national policy to preserve estab- lished railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage — a energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to dona- tion, transfer, lease, sale, or otherwise in a manner consistent with the National Trails System Act [16 USC §1241 et seq.], if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for pur- poses of any law or rule of law, as an abandonment of the use of such rights-of- way for railroad purposes. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for payment of any and all taxes that may be levied or assessed against such rights-of- way, then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this Act, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.” Pub. L. 98-11, §101 “Notwithstanding any other provision of this Act, authority to enter into contracts, and to make payments, under this Act shall be effective only to such extent or in such amounts as are provided in advance in appropriation Acts.” a STATEMENT OF THE CASE A Procedural Summary and Overview This case began as a quiet title action in the Warren County, Missouri, Circuit Court, to quiet the Property Owners’ title to land which had been subject to ease- ments “for the purpose of establishing, constructing and maintaining a railroad on the said land herein conveyed and for no other purpose.” (A representative deed [which was before the lower courts] is App D.) The Missouri-Kansas-Texas Railroad had de facto abandoned its rail line and thereafter sought and obtained de jure approval of that abandonment from the _ Interstate Commerce Commission (ICC). (Missouri-Kansas-Texas Railroad Co. — Abandonment — In St. Charles, Warren, Montgomery, Callaway, Boone, Howard, Cooper and Pettis Counties, Mo. ICC Docket No. AB-102 [Sub-No. 13] [March 6, 1987]) (M-K-T Abandonment) (App C) The quiet title suit was necessitated because the State sought to obtain from the Railroad the right to convert its former railroad right-of-way easement into a recrea- tional trail easement pursuant to 16 USC §1247(d) (the “rails-to-trails” scheme). Such a conversion of use is improper under Missouri law,’ and cannot Constitution- | Missouri law has long held that, when an easement is created for a specific use and that use is abandoned, then the easement is extinguished. (E.g., Missouri-Kansas-Texas Ry. Co. v. Freer (Mo App 1959] 321 SW 2d 731, 737 [a railroad right-of-way easement is limited to railroad right-of-way use]; University City v. Chicago, R./. & P. Ry. Co. (Mo 1941] 149 SW 2d 321, 326 [abandonment of the use for which the easement was granted ends the easement owner’s interest in the property]; City of Columbia v. Baurichter [Mo App 1987] 729 SW 2d 475, 481 [when its use is abandoned, “the ease- ment is extinguished”]; Kansas City Area Transp. Auth. v. 4550 (continued) es. ally be accomplished by a federal statute which forbids compensation to the Property Owners. The defendants removed the case to the U.S. District Court because their defense involved the application of a federal statute.” The District Court determined that the statutory scheme was Constitutional and that the Property Owners’ remedy, if any, was to seek just compensation from the United States in the Claims Court. On appeal, the Eighth Circuit Court of Appeals af- firmed. Expressly acknowledging “... that the takings issue has divided the circuit courts of appeal ...” (App A, p A 15) — with the District of Columbia Circuit holding that the “rails-to-trails” scheme could be a Fifth Amendment taking (National Wildlife Federation v. ICC [DC Cir 1988] 850 F 2d 694, 704), and the Second Circuit holding that the “rails-to-trails” scheme could never be a Fifth Amendment taking (Preseault v. ICC [2d Cir 1988] 853 F 2d 145, 151; cert. granted 57 USLW 3704)? — the Eighth Circuit nonetheless concluded that the “rails-to-trails” scheme was Constitu- (ftn. continued) Main Assoc. [Mo App 1986] 742 SW 2d 182, 191 [cessation of use of railroad easement for railroad right-of-way terminates the easement and frees the underlying property owners of the easement’s burden].) 2 The United States and a number of recreational organizations intervened and joined the original State and Railroad defendants. (App A, p A 3) 3 It is noteworthy that, in Preseault, the Solicitor General — on behalf of the ICC —— has refused to defend the broad holding of the Second Circuit that the statute “... never could effect a taking. We do not defend the judgment on that rationale, which conflicts with the District of Columbia Circuit’s opinion .. .” (Preseault, Brief for the Federal Respondents 21, fn 13) Y > tional because compensation could be sought in the Claims Court (App A, p A 19). Although argued in the briefs, the Court of Appeals’ opinion gives no consideration to the explicit statutory prohibition on unauthorized compensation in the Trails Act Amendments, of which the “rails-to-trails” scheme is a part: é “Notwithstanding any other provision of this Act, authority to enter into contracts, and to make payments, under this Act shall be effective only to such extent or in such amounts as are provided in advance in appropriation Acts.” (Pub. L. 98-11, §101 [not codified, but reproduced in the notes following 16 USCA §1249]; emphasis added.) Rather than rule as to this express statutory prohibi- tion on spending Federal money to acquire trails, the Court of Appeals erroneously asserted that “[t]he statute and its legislative history are simply silent.” (App A, p A 18) That is factually wrong and distorts the legislative record. The statute and its history are quite vocal in prohibiting any payments which are not approved in advance. That prohibition on payments precludes recovery of compensation in the Claims Court. 4 The Court of Appeals similarly misdescribed the import of the statute when it asserted that the Property Owners’ argument was that no Claims Court recourse was possible “... because there is no express provision in §1247(d) authorizing a taking or appropriating any funds as compensation.” (App A, p A 17) That was not the Property Owners’ argument. The argument was that the statute was clear on its face that use of any funds for recreational trails which were not specifically authorized in advance was _ expressly prohibited. The Court of Appeals’ evasion of the statute’s words was necessary to reach its erroneous conclusion. a | ; ; a 2 B Factual Statement? Land owned by the Property Owners has been subject for a century to easements in favor of the Railroad or its railroad predecessors in interest. Appendix D is repre- sentative of the deeds by which these easements were created. The purpose for which the easements were granted is precise: “for the purpose of establishing, constructing and maintaining a railroad on the said land herein con- veyed and for no other purpose,” to be used as a “right- of-way for a railroad and for no other purpose.” The i144 Property Owners/Petitioners own individual parts of a strip of land once used by the Railroad for a 200-mile right-of-way crossing two-thirds of Missouri, from Machens (north of St. Louis) westward to Sedalia. The right-of-way ownership disputed in this case was part of the Railroad’s main line from St. Louis to Parsons, Kansas. Most of the line is north of, and paral- lels, the Missouri River. According to documents filed by the Railroad with the ICC, use had declined, and line operation had become unprofitable. The track and the ties were obsolete, and many of the numerous bridges were in need of substan- tial repair. The cost to repair, replace, and maintain the tracks, ties, and bridges, made it impossible to profitably operate the line. ’ The District Court granted summary judgment in favor of the Respondents and the Court of Appeals affirmed. The facts stated here were not disputed by the Respondents. Both courts assumed the facts to be as stated by the Property Owners. (App A, p A 16) - 8. The proximity of the line to the Missouri River caused continuing problems. The line was subject to flooding aid, in fact, was rendered inoperable by flood- waters in October 1986. Moreover, the need for the line ceased when the Rail- road obtained the right to use a parallel right-of-way owned by the Missouri Pacific Railroad south of the Missouri River. The existence of the Missouri Pacific’s parallel line on the south side of the Missouri River made the line here in dispute redundant.°® Because of the lack of need for the rail line, and the cost to restore it to a useful condition, the ICC author- ized abandonment of the line. (App C, p C 10) C The “Rails-to-Trails’” Scheme The National Trails System Act (16 USC §1241 er seq.) was adopted in 1968 to increase outdoor recreation. Bills were introduced in Congress beginning in 1980, which culminated in the National Trails System Act Amendments of 1983, whose general thrust was to in- crease the availability of trails at little or no cost to the federal government. (See generally Senate Report 98-1; House Report 98-28.) Part of the 1983 program was the so-called “rails-to-trails” scheme. 6 Since then, the Missouri-Kansas-Texas Railroad has been acquired by the parent of the Missouri Pacific Railroad, unifying railroad ownership through the Missouri River corridor and nullify- ing even a theoretical need to re-open the obsolete and redundant line north of the river. -9- It had come to Congress’ attention that there was a “problem” in utilizing some abandoned railroad rights- of-way for recreational trails because the railroads owned only easements of limited life in those rights-of- way which ended when railroad use was abandoned. The “problem” was settled state real property law. The general rule (including the rule in Missouri, as discussed above at p 4, fn 1) was that, on abandonment of use as a right-of-way, the railroad’s interest automatically lapsed, restoring title unburdened by the railroad easement to the underlying property owners. (See generally Com- ment, The Use of Discontinued Railroad Rights-of-Way as Recreational Hiking and Biking Trails: Does the National Trails System Act Sanction Takings? [1988] 33 St. Louis U.L.J. 205, 211, 213.) Thus, on abandonment of railroad use, railroads which owned only easements were unable to convert their former right-of-way ease- ments into recreational trails even if the railroads so desired. The solution which Congress devised was 16 USC §1247(d). Congress was ingenuously candid about its intent: “The key finding of this amendment is that interim use of a railroad right-of- way for trail use, when the route itself remains intact for future railroad purposes, shall not constitute an abandonment of such rights-of-way for railroad purposes. This finding alone should eliminate many of the problems with this program. The concept of attempting to establish trails only after the formal abandonment of a railroad right-of-way is self-defeating; once a right-of-way is abandoned for railroad -10- road purposes there may be nothing left for trail use.” (House Report 98-28 at 8-9) The problem with this Congressional solution is that it: @ sought to override and retroactively change State property law; @ ignored settled decisions of this Court that property interests are defined by state, not federal, law;’ and @ prohibited spending any federal funds for the program except as specifically author- ized in advance in Congressional appropria- tions Acts. The consequence was confusion. The ICC understood that Congress intended no money to be spent. (Rail Abandonments — Use of Rights-of-Way as Trails [1986] 2 ICC 2d 591, 597 [Trails Rules]) The ICC also under- stood that Congress intended to eliminate the “problem” caused by the legal doctrine that cessation of rail use causes an automatic abandonment of a railroad easement and returns full dominion over the property to the under- lying property owners. (Trails Rules, 2 ICC 2d at 597) Thus, when it drafted rules to implement the “rails-to- trails” scheme, the ICC concluded that the scheme would not take property from any private property owners and that, even if it did, no compensation could be awarded for any “delay” in the ability of property owners to recover full use of the land underlying former railroad rights-of-way. (Trails Rules, 2 ICC 2d at 600) 7 Ruckelshaus v. Monsanto Co. (1984) 467 US 986, 1011; Webb's Fabulous Pharmacies, Inc. v. Beckwith (1980) 449 US 155, 161; Board of Regents v. Roth (1972) 408 US 564, 577; PruneYard Shopping Center v. Robins (1980) 447 US 74, 84. a -ij- The Constitutional confusion in this scheme was recently analyzed by the Court of Appeals for the Dis- trict of Columbia Circuit, which concluded that the “rails-to-trails” scheme could result in a taking of prop- erty and the ICC could not ignore the _ taking/ compensation issue. (National Wildlife Federation v. ICC [DC Cir 1988] 850 F 2d 694) National Wildlife did not consider whether the statute itself was Constitu- tional, as the only issue before that court for review was the propriety of the regulations drafted by the os The question on this appeal is the question presented in Preseault and left unaddressed in National Wildlife: the Constitutionality of the “rails-to-trails” scheme both on its face and as applied to specific property owners, given their rights and reasonable expectations under settled state easement law and the Fifth Amendment protection afforded them.” 8 After the DC Circuit told the ICC to reconsider its rules in light of the holding that the impact of the statute and the ICC’s rules could be a Fifth Amendment taking of property owners’ reversionary rights, the ICC ducked the issue, refused to change its rules to consider that possibility, and reiterated its former conclusion. (Rail Abandonments; Use of Rights-of-Way as Trails; Supplemental Trails Act Procedures {1989} 54 Fed Reg 8011) (Supplemental Trails Rules) The ICC’s evasion of the DC Circuit’s remand order is now on appeal (Beres v. JCC, DC Cir no. 89-1178), with proceedings in abeyance pending this Court’s decision in Preseault. 9 Because of the settled state law described earlier, the Property Owners’ rights under Missouri law were assumed by the courts below. As the Court of Appeals put it: “Like the district court, we assume for purposes of analysis that the conversion of the right-of-way from railroad use to interim trail use under § 1247(d) constituted a taking of plaintiffs’ reversionary interests in the right-of-way. We also assume for purposes of analysis that plaintiffs do possess reversionary interests (continued) . a2. REASONS FOR GRANTING THE WRIT THIS COURT HAS ALREADY ACKNOWL- EDGED THE IMPORTANCE OF THE ISSUES AT BENCH BY GRANTING CER- TIORARI IN PRESEAULT The issues presented in this case are of nationwide importance. This Court’s grant of Certiorari in Preseault attests to their importance, as does the sub- stantial number of amicus curiae briefs filed in support of both sides in that case. The amici curiae represent organizations and interest groups from all points of the politicai and economic spectrum and all parts of the nation. The importance to all of a clear determination of the issues presented in this case cannot be understated. Regardless of one’s perception of the propriety of con- version of abandoned railroad rights-of-way to hiking and biking trails, the conflicting decisions of the Second Circuit in Preseault, the Eighth Circuit in this case, and the DC Circuit in National Wildlife leave the program in a confused limbo which serves no one. Indeed, because of the pending litigation and the conflicting results, the ICC has refused to adopt a position on these issues: “Given the fact that the compensation issue is still being actively litigated ..., we have decided not to take any position on the merits of the different interpreta- tions at this time. Nor will we attempt to (ftn. continued) ; in the right-of-way which would vest by operation of state law when the right-of-way is no longer used for rail service.” App A, pA 16) A ae ne ich would vest by operation of state law when the right-of-way is no longer used for rail service.” (App A, p A 16) x; Because of that attempted fundamental change in the private ownership status quo, which requires the Prop- erty Owners to relinquish something which they own, the Nollan standard of review is required. Being “particularly careful” in examining the basis of a regulation, as Nollan requires, calls for substantially less deference to the governmental rationalizations than in pre-Nollan times. Regulations which take property can no longer be sustained in court merely because there is Some rational basis for believing that the challenged action might be necessary or useful. Nollan’s analysis makes this clear. There, the govern- ment sought to rely on the minimal, rational basis stand- ard of review used by the Court of Appeals here. (See 483 US at 834.) But this Court would have no part of it. Instead, this Court subjected the government’s rationales to careful examination, concluding that one justification for the action was “... a made-up purpose of the regulation. . .” (483 US at 839, fn. 6), while others were ““... impossible to understand .. .” (483 US at 838) The Court of Appeals’ review here is not compatible with the Nollan standard of review. Moreover, as the following discussion shows, the “rails-to-trails” scheme is not sustainable even under a “rationa) basis” standard. B. The “Rails-to-Trails’” Scheme Lacks Sufficient Basis Under the Commerce Clause The Court of Appeals’ analysis of the Commerce Clause issue is due no deference. It reflexively accepts, in a brief discussion and at face value, the vapid rationalizations put forth in support of the “rails-to- trails” scheme. (App A, p A 13) That is not adjudica- » 22 « tion; that is abdication. Under any standard of review, more is required than abject acceptance of presumed Congressional rationality. Otherwise, the Constitutional rule would be that there is never review of the basis for legislation. The interstate commerce justification for the statute was Said to be the furtherance of the “railbanking” program, i.e., a program to maintain railroad rights-of- way for future use after the present railroad abandons the railroad right-of-way. However, in the context of the “rails-to-trails” scheme, the “railbanking” rationalization is a sham. The ICC has candidly acknowledged this, concluding that “.., the main purpose of the amendment is to remove reversion as an obstacle that hinders or prevents the successful conversion of entire linear rights-of-way to recreation use when the rights-of-way have been oper- ated under easements for railroad purposes.” (Trails Rules, 2 ICC 2d at 597; emphasis added )!? The operation of the “rails-to-trails” scheme confirms the ICC’s conclusion. Before the ICC can even consider a “rails-to-trails” conversion, it must find that the right-of-way is not necessary for “... present or future public convenience or necessity ...” (49 USC §10903; emphasis added. 12 The quoted passage then cites, as illustrative of the reason for the enactment of §1247(d), not anything having to do with “railbank- ing” or anything else to do with reviving railroads for that matter, but to state court cases which held that state easement law required extinguishment of railroad easements when railroad use ended. (Pollnow v. State Dept. of Natural Resources (Wis 1979] 276 NW 2d 738; Schnabel v. County of DuPage [Ill App 1981] 428 NE 2d 671) That is the problem addressed by §1247(d), not preservation of rail routes. ae See also Exemption of Out of Service Lines [1986] 2 ICC 2d 146, 152.) As the ICC most recently put it: “In every Trails Act case, we will al- ready have found that the public conven- ience and necessity permit abandonment (or that regulatory approval is not required under 49 U.S.C. 10505).” (54 Fed Reg at 8012, fn 3; emphasis added.) In other words, “railbanking” is permitted only after the ICC concludes that “railbanking” is not needed, thus confirming that the actual purpose of §1247(d) is the creation of hiking and biking trails, not the preservation of needed rail rights-of-way. The ICC essentially con- cedes this. (Trails Rules, 2 ICC 2d at 597) Moreover, the effectuation of this supposed “national interstate commerce” policy was left not to the ICC or any national governmental body, but to voluntary agree- ment!? between railroads and private trail operators or local government agencies. '4 Absent such agreements, the so-called “national policy” does not function. If-the 13 The “rails-to-trails” scheme has been repeatedly held to be a voluntary, rather than a mandatory, program. (Washington State Dept. of Game v. ICC [9th Cir 1987] 829 F 2d 877; National Wildlife Federation v. ICC [DC Cir 1988] 850 F 2d 694; Connecticut Trust for Historic Preservation v. ICC [2d Cir 1988] 841 F 2d 479) 14 The ICC cannot compel trail conversion if no trail group expresses interest (e.g., Chicago and North Western Transp. Co. — Abandonment and Discontinuance of Trackage Rights [1988] ICC Docket No. AB-1 [Sub-no. 219][1988 ICC Lexis 365]) or if the railroad declines any trail conversion (e.g., Chicago and North Western Transp. Co. — Abandonment [1988] ICC Docket No. AB-1 [Sub-No. 215][1989 ICC Lexis 23]; Missouri Pacific Railroad Co. — Abandonment [1988] ICC Docket No. AB-3 [Sub-No. 57][1988 ICC Lexis 384]). 1’ e trail operator becomes disenchanted with its task, it may abandon the trail at will, with scarcely a “by your leave” to the ICC. (49 CFR §1152.29[C][2]) Whether there is any “railbanking” at all is thus left to the whim of trail operators and railroads. This is a recreation measure, not a railroad measure. When Congress addresses national railroad policy, it is much more direct. No finding that a particular right-of-way is even suit- able (let alone needed) for “railbanking” is necessary before the ICC authorizes conversion to recreational trail use. (49 CFR §1152.29)'> This caused the D.C. Circuit evident concern. (See National Wildlife, 850 F 2d at 707, 708.) Here, the Court of Appeals refused to consider the actual rationality of this scheme, opting for an assumed rationality. Nollan makes that mode of review inap- propriate. The “rails-to-trails” scheme is a transparent attempt to alchemize private property into public hiking and biking trails at no cost to the public, but at substantial loss to individual property owners. The “rails-to-trails” scheme is not justifiable as railroad regulation under the Commerce Clause.'® It is recreational legislation, and nothing more. 1S This is highly pertinent in a case such as this one where the right-of-way was abandoned in favor of a superior, parallel right-of- way across the Missouri River and not as susceptible to the River's ravages as the abandoned right-of-way. Had this inquiry been made, it would have disclosed no potential for future reactivation of this inferior abandoned right-of-way. 16 The analysis in this section also demonstrates that the “rails-to- trails” scheme is a denial of substantive due process as applied to the Property Owners, as it is arbitrary, capricious, and lacking in a rational basis. (See Littlefield v. City of Afton (8th Cir 1986] 785 F 2d 596.) Ob oe ee a OS a ES «ea ES OS ST te -25- CONCLUSION This Court’s grant of Certiorari in Preseault recog- nizes that the issues presented in this case are important and require resolution. Those issues touch the core of the relationship between the government and the governed. They deal with the Constitutional limitations on the government’s ability to retroactively redefine private property interests to serve some perceived public need. No one questions the power of Congress to act in the public interest. But the issue here, as is so often the case in Constitutional litigation, is means, not ends. As this Court put it in First English: “... many of the provisions of the Consti- tution are designed to limit the flexibility and freedom of governmental authorities and the Just Compensation Clause of the Fifth Amendment is one of them.” (482 US at 321) Here, in its effort to expand recreational opportunities for some, Congress has violated the rights of others. It has enacted legislation which takes property from pri- vate owners and declares it to be the public’s. And, in so doing, Congress made it clear that no federal funds were to be spent on the program unless Congress specifi- cally authorized the expenditure in advance. That clear prohibition on spending money precludes any recourse these Property Owners might otherwise have to seek compensation in the Claims Court. The Court of Appeals’ conclusion that the Claims Court is available for compensation could only be reached by ignoring the Congressional prohibition on spending money. - 26 - Because the statute thus takes private property for public use (as the Court of Appeals acknowledged [App A, p A 16]), and provides no compensation, the statute is void (Hodel v. Irving [1987] 481 US 704). The issues here are important. The Property Owners pray that Certiorari be granted or that the decision whether to grant Certiorari be deferred until after this Court decides Preseault. If the decision as to Certiorari is deferred, this Court can ensure that the Property Own- ers at bench receive treatment consistent with Preseautlt. Deferral would also provide this Court with a ready vehicle to address these issues if, for some reason, Preseault is found to be procedurally inappropriate. Respectfully submitted, FADEM, BERGER & NORTON MICHAEL M. BERGER Counsel of Record Attorneys for Petitioners APPENDIX A i--. UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 88-1863 Maurice and Dolores Glosemeyer; Fred and Alwera Brodbeck; Richard and Esther Burgess; John and Marjorie Dohr; Clarence and Onita Duenke; Ada Haase; Roy and Phyllis Haase; Wayne and Maureen Heck; Bernard Hellebusch; Elmer and Regina Hellebusch; James and Patricia Hellebusch; Mrs. Bernard Moellering; Alvin Roewe; Werner Roewe; James and Carla Schwoeppe; Donald and Delores Vitt; Jay and Nancy Walk, Jr.; Clarence Bergman; Harold Blaylock; Maurine Bluhm; Clara Boessen; Ralph and Mildred Brandt; Anne Buckley; Roy Cary; Kenneth and Loretta Burre; Walter and Helen Burre; Albert and Esther Dickson; Charles Dilthey; Denis Engemann; Gerald Engemann; Bernard and Geraldine Eichelberger, Sr.; Glen and Eleta Eichhorn; Sidney and Nadine Eldringhoff; Irven and Margaret Ewing; Hattie Farris; Bruce Florea; Andrew and Emilie Gerke; Anton and Alice Gerke; Herbert Gerke; Roy and Helen Gramlich; Clifford and Rosaline Haid; Norma and Edward Hasselman; Erwin and Alberta Heck; Linda and Gordon Heck; Marie and Leroy Heidbreder; Earl and Gladys Heitmann; Gary and Patty Heldt; Randy and Kendall Kircher; Leroy Kircher, Jr.; John and Barbara Knaus; Randail Kollmeyer; Roman and Leona Kuchem; Leonard and Isabel Lang; Thomas and Lana Langford; Carl Lensing; Allan Lietzke; Earl Mallinckrodt; James and Evalane Meyer; John Morr; Walter and Edna Nadler; L.W. Niewald; J.M. Potter; Layton Rehmeier; Alan and Mary Richter; Wilbur Rothgeb; Bill Rudloff, Hulda Rueff; Herbert Schmid; Marvin Schupp; Wilbur Schuster; Clara Siegel; Harold and Bonnie Siegel; Mary Sly; Jim and Stephanie Sneed; John and Mary Sneed; Robert Snoddy; Earl Summers, Cleo Tinsley; Terry Twenter; Price and Edna Vaughan; B.J. Wessing; Charles Wessing; Laura Willenbring; John and Susan Williamson, Jr.; Wilfred and Carol Wissman; Frank Pierson; Clifford Sapp; Brenda -A 2- Reeder, Alfred Beckmeyer; Clifford Nahler; Robert Sapp; Marvin Sapp; Ina Mae Sapp; Bud Holiman; Amy Easley; Edward and Gloria Belt; Charles and Aurelia Bottenmuller; Bertha Hampton; John Reeder; Sharon Beeler; Thomas Douglass; and Douglass Farms, Inc.; Anthony Aholt, Bernard and Virginia Altheuser; Albert Bates; Helen Bennett; Donald Dothage; Albert Eichhorn; Elda Flatt; Elmer Friedric; Lawerence and Anna Gerke; Norman Gerke; Harold & Geralyn Gloe; David & Tammy Goebel; Donald & Viola Gordon; Elmer Gregory; Harrell Harvey; James Harvey; Alma Horner; William and Elsie Hunt; John and Gladys Miller; May Miller; John and Ethel Nolle; Eugene and Mary Lou Renfrow; James and Dorothy Roddy; Norbert and Louise Schuster; Steve and Debbie Schuster; Lyonel and Irene Schweerkotting; Leonard Struckhoff; Henry, Sr. and Theresa Struckhoff; Clyde and Sarah Twenter; Raymond and Helen Twillman; Earl Wessing; Laura Carpenter; Ryland Kessinger and Ellen Kessinger; Walter Moore and Dorothy Moore; Daniel L. Schlafly; Katherine Walsh and Edward Walsh, Jr., Appellants, v. Missouri-Kansas-Texas Railroad; Missouri Department of Natural Resources, an agency of the State of MO; Frederick A. Brunner, Director Missouri Department of Natural Resources, Appellees. Conservation Federation of MO; National Wildlife Federation; the Rails to Trails Conservancy; the Lewis and Clark Nature Trail Foundation; the Sierra Club; the Paralyzed Veterans of America; BICYCLE USA; the Lewis and Clark Heritage Foundation; the American Hiking Society; the Katy MO River Trail Association; the American Rivers Conservation Council; United States, Intervenors Below. Appeal from the United States District Court for the Eastern District of Missouri -A 3- Submitted: December 12, 1988 Filed: July 5, 1989 Before McMILLAN and BEAM, Circuit Judges, and WHIPPLE, District Judge. McMILLIAN, Circuit Judge. Plaintiffs appeal from a final order entered in the District Court! for the Eastern District of Missouri rejecting their constitutional challenge to § 8(d) of the National Trails Sys- tem Act of 1968 (Trails Act), as amended, 16 U.S.C. § 1247(d) (hereinafter § 1247(d)), and granting summary judgment in favor of defendants. Glosemeyer v. Missouri- Kansas-Texas R.R., 685 F.Supp. 1108 (E.D. Mo. 1988) (Glosemeyer). Plaintiffs are 144 individuals who own prop- -erty adjacent to a railroad line in eastern Missouri that is no longer in use.2_ Their properties are subject to easements or rights-of-way for railroad use. The Missouri-Kansas-Texas Railroad Co. (MKT), the Missouri Department of Natural Resources (DNR), and the director of the DNR, Frederick A. Brunner, were the original defendants. The United States and eleven environmental and recreational interest groups” The Honorable Dean Whipple, United States District Judge for the Western District of Missouri, sitting by designation. | The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri. 2 The district court granted the American Farm Bureau Federation and the Missouri Farm Bureau Federation leave to file briefs in support of plaintiffs as amici curiae. These organizations filed a joint amicus brief in support of plaintiffs on appeal. 3 The interest group intervenors are the Conservation Federation of Missouri, the National Wildlife Federation, the Rails to Trails Conservancy, the Lewis and Clark Nature Trial [sic] Foundation, the Sierra Club, the Paralyzed Veterans of America, BICYCLE USA, the Lewis and Clark Heritage Foundation, the American Hiking Society, (continued) Ae were later granted leave to intervene as defendants. For reversal plaintiffs argue the district court erred in granting summary judgment in favor of defendants because § 1247(d) (1) constitutes a taking of rights-of-way for trail use without just compensation in violation of the takings clause of the fifth amendment, (2) is not a valid exercise of power under the commerce clause, and (3) impairs private contractual rights in violation of the contracts clause and the due process clause of the fifth amendment. For the reasons discussed below, we affirm the order of the district court. STATUTORY BACKGROUND The following is a summary for purposes of analysis only. For a comprehensive legislative history of the Trails Act and the 1983 amendments, see the discussions in Glosemeyer, 685 F. Supp. at 1113-17, and National Wildlife Federation v. ICC, 271 U.S. App. D.C. 1, 850 F.2d 694, 697-99 (1988) (NWF). Section 1247(d) is part of the Trails Act. Congress enacted the Trails Act in 1968 in order to establish a nation- wide system of nature trails. As originally enacted, the Trails Act made no provision for the conversion of railroad rights-of-way to trail use. NWF, 850 F.2d at 697. By the early 1970s, however, [c]oncerned about the disintegration of our national rail system due, in part, to abandonment of rail corridors, [C]ongress called for a study on establishing a “rail bank” consisting of selected abandoned railroad rights-of-way. Railroad Re- vitalization and Regulatory Reform Act of 1976 [((4-R Act)], § 809, Pub. L. No. 94-210, Title VIII, 90 Stat. 144 (codified as amended at 49 U.S.C. (ftn. continued) 6 ; the KATY Missouri River Trail Association, and the American Rivers Conservation Council. hh 3 § 10906 (1980)). One significant impediment to the preservation of rail corridors has been that much railroad right-of-way is held by easement only and, under the laws of some states, once rail service is discontinued such easements automati- cally expire and the rights-of-way revert to adja- cent property owners. To address this problem, [C]Jongress enacted 16 U.S.C. § 1247(d) as part of the 1983 Trails Act Amendments in order (1) to preserve for possible future railroad use rights-of-way. that are not cur- rently in service and (2) to allow interim use of the rail corridors as recreational trails. Preseault v. ICC, 853 F.2d 145, 147 (2d Cir. 1988) (Preseault), cert. granted, 109 S. Ct. 1929 (1989). As explained in Glosemeyer, 685 F.Supp. at 1116-17 (citations omitted), § 1247(d) grant[s] interested parties the opportunity to use, for recreational purposes, and to preserve, for future rail service, railroad rights-of-way which have been approved for abandonment. Section 1247(d) provides that if interim trail use “is subject to restoration or reconstruction for railroad purposes” then such use “shall not be treated, for purposes of any law or rule of law, as an abandon- ment of the use of such rights-of-way for railroad purposes.” It also provides that if a qualified pub- lic Or private entity is prepared to assume full responsibility for the management of the right-of- way and for any liability arising out of its transfer or use, the [Interstate Commerce Commission (ICC)] “shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with [the Trails -A 6- Act], and shall not permit abandonment or discon- tinuance inconsistent or disruptive of such use.” Under its final rules,* when the ICC finds that a railroad right-of-way is appropriate for abandon- ment under 49 U.S.C. § 10903 and when a quali- fied public or private entity offers to maintain the right-of-way for interim trail use, the ICC issues a [Certificate of Interim Trail Use (CITU)]. The CITU permits the railroad to discontinue rail service, cancel tariffs and salvage track and other equipment. It further provides the railroad and the prospective interim trail user 180 days to negotiate an interim trail use agreement. If no agreement is reached, “then the CITU will convert into an effec- tive certificate of abandonment, permitting the railroad to abandon the line immediately.” If, however, an agreement is reached, the ICC will permit interim trail use and hold in abeyance its authorization to abandon the right-of-way. Should the trail user thereafter seek to terminate its use of the right-of-way, it must file a “petition to reopen the abandonment proceeding” so that the ICC may 4 See Rail Abandonments — Use of Rights-of-Way as Trails, 2 I.C.C.2d 591 (1986), and Rail Abandonments — Supplemental Trails Act Procedures, 4 1.C.C.2d 152 (1987) (codified at 49 C.F.R. § 1152.29). In response to other litigation involving railbanking, see National Wildlife Fed'n v. ICC, 271 U.S. App. D.C. 1, 850 F.2d 694 (1988), the ICC recently issued a supplemental policy statement expressing its conclusion that the railbanking provision does not violate the just compensation clause, either because railbanking does not constitute a taking or because, if it does constitute a taking, monetary relief is available under the Tucker Act in the Claims Court. See 54 Fed. Reg. 8011, 8013 (Feb. 24, 1989). A petition for review has been filed. Beres v. ICC, No. 89-1178 (D.C. Cir. Mar. 14, 1989). LeAnne see pn. were, ~ ) 2 “issue a certificate of abandonment to the railroad and to the trail user.” Accordingly, “(t]he key finding of [§ 1247(d)] is that interim use of a railroad right- of-way for trail use, when the route itself remains intact for future railroad purposes, shall not consti- tute an abandonment of such rights-of-way for rail- road purposes.” See also NWF, 850 F.2d at 669-02 (interim trail use requires voluntary agreement between railroad and trail user); Washington State Department of Game v. ICC, 829 F.2d 877, 879-81 (9th Cir. 1987) (same). PROCEDURAL BACKGROUND At issue in the present case is approximately 200 miles of railroad right-of-way between Machens and_ Sedalia, Missouri; much of the railroad line follows the north bank of the Missouri River. MKT no longer provides rail service over the railroad line. In September 1986 MKT filed an application with the ICC pursuant to 49 U.S.C. § 10903 to abandon the contested sec- tion of right-of-way. Several parties protested or commented on the MKT application to abandon, including the DNR. In October 1986 the DNR invoked § 1247(d) and requested the ICC to issue a CITU to preserve the right-of-way for rail- banking, citing the geological, biological, historical, archeological, and cultural values of the right-of-way. MKT was interested in working out an interim use agreement with the state and the other interest groups. Adjacent landowners, however, opposed the conversion of the right-of-way to trail use on the grounds that, by operation of state law, once the right-of-way is no longer used for rail purposes, it automati- cally dissolves. They also expressed concerns about security and crime. 7 * In March 1987 the ICC concluded that the economic burden on MKT of continued operation outweighed the inconvenience to shippers and others from discontinuance of service and authorized issuance of a CITU pursuant to § 1247(d) in lieu of a certificate of abandonment. Missouri- Kansas-Texas R.R. — Abandonment — St. Charles, Warren, Montgomery, Calloway, Boone, Howard, Cooper & Pettis County, Mo., 1CC No. AB-102 (Sub-No. 13) (served Mar. 16, 1987). On April 22, 1987, the ICC issued the CITU. /d. (served Apr. 27, 1987). In the meantime, in December 1986, after the ICC final rules had been issued but before the ICC issued the CITU, plaintiffs, owners of property adjacent to the right-of-way, filed an action to quiet title in state court against MKT, the DNR, and Brunner, the director of the DNR. The action was later removed to federal district court. Plaintiffs alleged that their predecessors-in-interest had granted a right-of-way over their property to the predecessors-in-interest of MKT “for the purpose of right-of-way for a Railroad, and for no other purpose.” Plaintiffs argued that when MKT ceased to use the right-of-way for the purpose of a railroad, MKT, by opera- tion of state law, lost its interest in the right-of-way and had no interest in the right-of-way to transfer to DNR. Plaintiffs alleged that but for conversion of the right-of-way from “rails to trails” use under § 1247(d), their reversionary inter- ests in the right-of-way would have vested in them under state law. Plaintiffs argued § 1247(d) violated the commerce clause, the contracts clause, the due process clause, the takings clause, and various state constitutional and statutory provisions. Plaintiffs sought declaratory and injunctive relief. As noted earlier, the United States and eleven environ- mental and recreational interest groups intervened. In a well-reasoned opinion, the district court held that it had subject matter jurisdiction over plaintiffs’ constitutional challenge to § 1247(d), Glosemeyer, 685 F. Supp. at 1112, -A 9- but not plaintiffs’ claims against the regulations and the ICC decision, id., and rejected plaintiffs’ claims on the merits, holding that § 1247(d) did not viclate the commerce clause, the contracts clause, the fifth amendment due process clause, or the takings clause, and that state law in conflict with the federal statutory scheme was pre-empted. /d. at 1118-22. The district court granted summary judgment in favor of defendants and against plaintiffs and declared § 1247(d) is constitutional. This appeal followed. JURISDICTION As a preliminary matter, we hold that we have appellate jurisdiction under 28 U.S.C. § 1291 and do not reach the question whether we also have jurisdiction under 28 U.S.C. § 2342. Cf. Preseault, 853 F.2d at 149 (finding appellate jurisdiction pursuant to 28 U.S.C. § 2342 to review constitu- tional challenge to ICC order under § 1247(d); describing as nonsensical requirement of bifurcated challenge). Plaintiffs’ action to quiet title in state court was removed to federal district court in December 1986; the ICC decision granting the CITU was not served until March 6, 1987. Because no administrative action had been taken at the time plaintiffs’ complaint had been removed and filed n federal district court, the district court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1337, to decide plaintiffs’ facial chal- lenge to the constitutionality of § 1247(d). See Preseault, 853 F.2d at 149, citing Public Utilities Comm'n v. United States, 355 U.S. 534, 540 (1958). We also agree that the district court did not have subject matter jurisdiction over plaintiffs’ challenge to the ICC’s decision to grant the CITU and to the ICC’s final rules implementing § 1247(d). Under 28 U.S.C. § 2342, the fed- eral circuit courts of appeal, and not the federal district ceurts, have exclusive jurisdiction to “determine the validity of ... all rules, regulations, or final orders of the [ICC] -A 10- made reviewable by [28 U.S.C. § 2321].” See NWF, 850 F.2d at 699 (petitions for review of final ICC rules); Washington State Department of Game v. ICC, 829 F.2d at 878 (petitions for review of ICC decision to deny CITU and final ICC rules). CONTRACTS CLAUSE We first address plaintiffs’ contracts clause and related substantive due process arguments. Plaintiffs argue that § 1247(d) violates the contracts clause, U.S. Const. art. I, § 10. Brief for Appellants at 48 n.31. Plaintiffs characterize the grants of right-of-way by their predecessors-in-interest to MKT’s predecessors-in-interest as contracts and argue that § 1247(d) impairs their rights under these contracts by pur- porting to transfer their reversionary interests in the right- of-way to a third-party, that is, the designated interim trail user or, possibly, the public. As correctly noted by the dis- trict court, this argument must fail because the contracts clause? applies only to state, not federal, laws. Glosemeyer, 685 F. Supp. at 1118; see also NWF, 850 F.2d at 702 n.12. Section 1247(d) is federal legislation. “Any claim that federal legislation unlawfully impairs existing contracts falls under the due process clause of the fifth amendment.” NWF, 850 F.2d at 702 n.12. “The party asserting a Fifth Amendment due process violation must overcome a presumption of constitutionality and ‘establish that the legislature acted in an arbitrary and irrational way.’ ” National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe R.R., 470 U.S. 451, 472 (1985), citing Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729 (1984). Plaintiffs argue that § 1247(d) violates substantive > The contracts clause provides in part that “[nJo State shall... pass any ... law impairing the Obligation of Contracts.” -A 11- due process because it is arbitrary, capricious and lacking in a rational basis. Brief for Appellants at 48 n.31. Even if we assume for purposes of analysis, as did the district court, that the right-of-way agreements were contracts and that § 1247(d) substantially impaired plaintiffs’ contractual rights, this argument must fail. The substantive due process argument is related to plaintiffs’ commerce clause argument. As discussed further below, we reject both arguments for the same reasons. We agree with the district court that “Congress acted rationally in enacting § 1247(d) by electing to postpone railroad abandonments and to encour- age interim trail use so as to further its railbanking purpose.” Glosemeyer, 685 F. Supp. at 1119. COMMERCE CLAUSE The district court concluded that “Congress acted ration- ally in enacting § 1247(d) by electing to postpone railroad abandonments and to encourage interim trail use so as to further its railbanking purpose” and thus held § 1247(d) did not violate the commerce clause. Glosemeyer, 685 F. Supp. at 1117-18. As a threshold matter, plaintiffs argue the dis- trict court erred in applying a rational basis test. Plaintiffs argue the applicable standard of review is strict scrutiny, citing Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (Nollan). Nollan involved land use regulation. We think the district court correctly characterized § 1247(d) as part of the comprehensive federal scheme regulating rail- roads and thus subject to commerce clause analysis and the rational basis test. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) (Hodel). On the merits, plaintiffs argue that § 1247(d) lacks a rational basis because Congress’s express legislative pur- pose, railbanking, is a sham. Plaintiffs argue that railbank- ing is merely a subterfuge for Congress’s “real” purpose, that is, the conversion, without just compensation, of their rever- -A 12- sionary interests in the right-of-way to recreational trail use. As is apparent from the reference to just compensation, this argument is related to plaintiffs’ takings clause argument discussed below. Plaintiffs argue that it is virtually impossi- ble to believe that railroad lines which have been proposed for abandonment and converted to interim trail use will ever be restored to rail service in the future. Plaintiffs argue that, because in most cases the track will have been salvaged, resumption of rail service would require the installation of a new roadbed and new track and-the repair or reconstruction of bridges and would thus be prohibitively expensive. Plain- tiffs argue that in the present case resumption of rail service is particularly unlikely in light of MKT’s acquisition of trackage rights along a route parallel to this right-of-way. Plaintiffs also argue that, assuming there is a rational basis for railbanking, the means chosen by Congress are not reasonably related to this purpose. For example, plaintiffs argue that certification for interim trail use affects only 5% ! of all railroad rights-of-way proposed for abandonment and thus is a remarkably underinclusive way to preserve rights- of-way for future rail service. Plaintiffs also argue that, although railbanking is ostensibly of vital importance to the national welfare, certification for interim trail use is not mandatory and instead depends upon the voluntary coopera- tion of both the abandoning railroad and the prospective interim trail user. Under commerce clause analysis, the scope of judicial review is “relatively narrow.” Hodel, 452 U.S. at 276. In determining whether an exercise of congres- sional power is valid under the commerce clause a court may consider only (1) whether there is any rational basis for a congressional finding that the regulated activity affects interstate commerce; and (2) whether “the means chosen by [Congress are] reasonably adapted to the end permitted by the Constitution.” ST NN ~ en ee ene ee Cena -A 13- Preseault, 853 F.2d at 149, citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964); see also Hodel, 452 U.S. at 276. We hold the district court’s analysis on the merits is cor- rect. First, we agree that railbanking is not a mere sham for recreation or conservation uses. “(Section 1247(d)] serves two purposes: (1) preserving rail corridors for future rail- road use and (2) permitting public recreational use of trails. Both purposes are legitimate congressional goals under the commerce clause.” Preseault, 853 F.2d at 150. Because plaintiffs do not contend that § 1247(d) is a regulation of an activity which does not affect interstate commerce or that Congress cannot regulate railroad abandonments,° the only issue is whether § 1247(d) was reasonably adapted to these two purposes. We agree with the Second Circuit that interim trail use is “a remarkably efficient and sensible way to achieve both goals.” /d. Section 1247(d) enables railroads that wish to dis- continue service to help preserve rights-of-way for future rail use, when they might otherwise seek to abandon a line; it protects the railroad from liability in the interim; and it provides for mainte- nance of the right-of-way by the trail user during the interim. Id. It may well be true that interim trail use is not a very effective way to accomplish these goals. However, such an argument should be addressed to Congress, not the courts. 6 “Congress’s authority to regulate the railroads is well recognized, as is its authority to regulate railroad abandonments.” Preseault v. ICC, 853 F.2d 145, 150 (2d Cir. 1988) (citations omitted), cert. granted, 109 S.Ct. 1929 (1989). And, as noted by the district court, “Congress vested in the ICC ‘exclusive’ and ‘plenary’ authority over railroad abandonments.” Glosemeyer v. Missouri-Kan.-Tex. R.R., 685 F. Supp. 1108, 1113 (E.D. Mo. 1988), citing Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321 (1981). -A 14- “{T)he effectiveness of existing laws in dealing with a prob- lem identified by Congress is ordinarily a matter committed to legislative judgment.” Hodel, 452 U.S. at 283. TAKINGS CLAUSE This is plaintiffs’ principal argument. The district court held that § 1247(d) did not constitute an unconstitutional taking of plaintiffs’ property without just compensation because plaintiffs had an adequate legal remedy under the Tucker Act, 28 U.S.C. § 1491. Glosemeyer, 685 F. Supp. at 1119. Plaintiffs argue that § 1247(d) effects a temporary regulatory taking of their reversionary interests in the right- of-way by postponing the vesting of these interests under state law. Plaintiffs argue that this constitutes a taking with- Out just compensation in violation of the takings clause. Plaintiffs fusther argue that they have no adequate remedy at law and are therefore cntitled to equitable relief, that is, enjoyment of their property free of the right-of-way or ease- ment for railroad use. They argue the Tucker Act remedy is not available because § 1247(d) does not include any provi- sion for compensation and because Congress did not appro- priate any funds to acquire lands for the national trails system. _— MKT, the state defendants, and the environmental and recreational interest group defendants argue jointly that 7 The Tucker Act, 28 U.S.C. § 1491(a)(1), provides in part that | [t]he United States Claims Court shall have jurisdiction | to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. | -A 15- § 1247(d) does not effect a taking at all. These defendants note that, under § 1247(d), when the ICC authorizes interim trail use instead of abandonment, the right-of-way has not been abandoned and remains subject to the exclusive and continuing jurisdiction of the ICC. They argue that state property law is irrelevant unless and until the ICC declares the right-of-way to be abandoned, thereby ending its jurisdic- tion over the right-of-way. The United States argues that, even if § 1247(d) does effect a taking, the district court cor- rectly held that equitable relief was not available because plaintiffs could seek just compensation under the Tucker Act in the Claims Court. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (Monsanto) (alleged regulatory taking of trade secrets per pesticide statute; no equitable relief because com- pensation available per Tucker Act). In the present case the district court did not decide whether the conversion of the right-of-way from rail use to interim trail use under § 1247(d) constituted a taking. In- stead, the district court assumed for purposes of analysis that conversion of the right-of-way from rail use to interim trail use would effect at least a temporary taking of plaintiffs’ reversionary interests in the right-of-way. The district court concluded, however, that § 1247(d) did not constitute a violation of the takings clause because plaintiffs had an available legal remedy — they could sue for damages under the Tucker Act in claims court. Glosemeyer, 685 F. Supp. at 1119-20. For the reasons discussed below, we hold the dis- trict court’s analysis of the takings issue was correct. We note that the takings issue has divided the circuit courts of appeal. The District of Columbia Circuit has strongly suggested that “the postponement of a reversionary interest that would otherwise vest under state law constitutes a taking of private property [for public use] for which just compensation must be made.” NWF, 850 F.2d at 704 (reviewing ICC final rules which provided that conversion of rights-of-way from railroad use to interim trail use would not -A 16- result in a taking of any reversionary interests in rights-of- way; rules remanded to ICC for further consideration); accord Lawson v. State, 107 Wash. 2d 444, 730 P.2d 1308, 1315-16 (1986); cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 134 (1974) (Regional Rail) (“erosion taking” under the Regional Rail Reorganization Act of 1973). The Second Circuit, however, has squarely held that § 1247(d) does not effect a taking because “[t]he ICC has plenary and exclusive authority to determine whether it is appropriate under all the circumstances to allow a railroad carrier to abandon a route, and if the ICC determines that abandonment is not appropriate, no reversionary interest [in the right-of- way] can or would vest [under state law].” Preseault v. ICC, 853 F.2d at 151; accord State ex rel. Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543 (Minn.), cert. denied, 463 U.S. 1209 (1983). The Supreme Court recently granted a petition for writ of certiorari in the Preseault case. 109 S. Ct. 1929 (1989). Like the district court, we assume for purposes of analysis that the conversion of the right-of-way from railroad use to interim trail use under § 1247(d) constituted a taking of plaintiffs’ reversionary interests in the right-of-way.® We also assume for purposes of analysis that plaintiffs do possess reversionary interests in the right-of-way which would vest by operation of state law when the right-of-way is no longer used for rail service. But cf. NWF, 850 F.2d at 703-04 (state laws operate subject to plenary authority of ICC to regulate railroad abandonments and cannot transfer, extinguish or cause reverter of right-of-way prior to ICC- approved abandonment). In our view, whether § 1247(d) effects a taking of plain- tiffs’ property interests does not answer plaintiffs’ constitu- 8 “The inquiry into whether a taking has occurred is essentially an ‘ad hoc, factual inquiry.’ ” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984) (citation omitted). -A 17- tional challenge; rather, what is dispositive is whether plain- tiffs can obtain compensation, which depends, in turn, upon whether plaintiffs can sue under the Tucker Act, 28 U.S.C. § 1491. This is because the takings clause’ of the fifth amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314 (1987) (citatiouis omitted). [It is designed not to limit the governmental inter- ference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. Thus, government action that works a taking of property rights necessarily implicates the “constitutional obligation to pay just compensation.” Id. at 315 (emphasis in original), citing Armstrong v. United States, 364 U.S. 40, 49 (1960). “The Fifth Amendment does not require that compensation precede the taking.” Monsanto, 467 U.S. at 1016 (citation omitted). “All that it requires is that a * “reasonable, certain and adequate provi- sion for obtaining compensation” ’ exist at the time of the taking.” Glosemeyer, 685 F. Supp. at 1119, citing Regional Rail, 419 U.S. at 124-25. “Generally, an individual claiming that the United States has taken his [or her] property can seek just compensation under the Tucker Act, 28 U.S.C. § 1491.” Monsanto, 467 U.S. at 1016 (footnote omitted). Plaintiffs, of course, argue that they cannot sue under the Tucker Act because there is no express provision in § 1247(d) authorizing a taking o1 appropriating any funds as compensation. Plaintiffs further argue that because the Tucker Act is not available to them, they have no adequate legal remedy and are thus entitled to equitable relief. We disagree. 9 The takings clause provides in part that “private property [shall not] be taken for public use, without just compensation.” -A i8- In determining whether a Tucker Act remedy is available for claims arising out of a taking pur- suant to a federal statute, the proper inquiry is not whether the statute “expresses an affirmative show- ing of congressional intent to permit recourse to a Tucker Act remedy,” but “whether Congress has in the [statute] withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a suit involving the [statute] ‘founded ... upon the Constitution.’ ” Id. at 1017, citing Regional Rail, 419 U.S. at 126 (emphasis in original). As noted by the district court, “[a]ltogether absent in § 1247(d) or its legislative history is a discussion of the interaction between § 1247(d) and the Tucker Act.” Glosemeyer, 685 F. Supp. at 1120. Congress did not address the liability of the United States tO pay just compensation if a taking be found to have occurred. Congress either did not believe that the postponement of a railroad’s aban- donmeni of a right-of-way constituted a taking or assumed that the general grant of jurisdiction under the Tucker Act would provide a necessary remedy for any taking that might be found to have occurred. In either event, Congress’ failure to address the issue cannot be construed to reflect an unambiguous intention to withdraw the Tucker Act remedy. Id. at 1121. The statute and its legislative history are simply silent. In the face of this legislative silence, the district court correctly refused to hold that the Tucker Act remedy was not available to plaintiffs. The most that can be said is that § 1247(d) is ambiguous on the question of the availability of the Tucker Act remedy. Because “the Tucker Act grants what is now the Claims Court ‘jurisdiction to render judg- ment upon any claim against the United States founded ... ewe eth a ed BU een ee ee eS a -A 19- upon the Constitution, ’ ” id. (citations omitted), holding that plaintiffs could not sue under the Tucker Act with respect to takings under § 1247(d) would amount to holding that § 1247(d) withdrew jurisdiction from the Claims Court and thus partially repealed the Tucker Act. Not only are “repeals by implication ... disfavored,” Regional / ail, 419 U.S. at 133, it is also entirely possible for § 1247(d) and the Tucker Act to co-exist. “[W]here two statutes are ‘capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’” Monsanto, 467 U.S. at 1018, citing Morton v. Mancari, 417 U.S. 535, 551 (1974) (intermediate citation omitted). In the absence of a clearly expressed Congressional intention to the contrary, the district court correctly refused to construe § 1247(d) to withdraw the Tucker Act remedy. We hold that § 1247(d) does not violate the takings clause. Finally, we hold that the district court correctly denied plaintiffs’ request for equitable relief. “Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subse- quent to the taking.” Monsanto, 467 U.S. at 1016 (footnote omitted). Accordingly, we affirm the order of the district court. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. APPENDIX B nae ha 685 FEDERAL SUPPLEMENT 1108 Maurice and Dolores GLOSEMEYER, et al., Plaintiffs, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, et al., Defendants. No. 86-2508C(6). United States District Court, E.D. Missouri. May 10, 1988. MEMORANDUM GUNN, District Judge. This action involves a challenge to Section 8(d) of the National Trails System Act, as amended, 16 U.S.C. § 1247(d) (“§ 1247(d)”). Section 1247(d), enacted in furtherance of a national policy to preserve established railroad rights-of-way for future reactivation of rail service, authorizes the Inter- state Commerce Commission (“ICC”) to enter orders permit- ting such rights-of-way to be used on an interim basis as recreational trails. Plaintiffs, adjacent landowners to a rail- road right-of-way subject to an ICC order entered pursuant to § 1247(d), challenge the section on various federal and state constitutional and statutory grounds. In 1983 Congress amended Section 8 of the National Trails System Act of 1968 by adding a provision for the interim use of railroad rights-of-way as recreational trails.' : Although § 1247(d) was enacted in a single paragraph, it is useful to separate its three sentences: {1] The Secretary of Transportation, the Chairman of the Interstate Commerce Commission, and the Secretary of the Interior, in administering the Railroad Revitalization and Regulatory Reform (continued) -B2- National Trails System Act Amendments of 1983, Pub.L.No. 98-11, § 208 (1983), (codified at 16 U.S.C. § 1247(d)). In September 1986 the Missouri-Kansas-Texas Railroad Com- pany (“M-K-T”), pursuant to 49 U.S.C. § 10903, filed an application with the ICC to abandon approximately 200 miles of a railroad right-of-way between Machens and Sedalia, Missouri. In October 1986 the Missouri Department of Natural Resources (“DNR”) filed a protest to M-K-T’s appli- cation with the ICC in which it invoked § 1247(d) and requested the ICC to issue a Certificate of Interim Trail Use (“CITU”) to it pursuant to § 1247(d) and the regulations promulgated thereunder. 49 C.F.R. § 1152.29 (1986). The CITU would authorize and direct interim use of the railroad right-of-way for a recreational trail while requiring retention and maintenance of the railroad corridor for reinstatement of rail service in the future. On March 6, 1987, the ICC (ftn. continued) : ; Act of 1976... shall encourage state and local agencies and private interests to establish appropriate trails using the provisions of such programs. [2] Consistent with the purposes of that Act, and in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restora- tion or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandon- ment of the use of such rights-of-way for railroad purposes. (3) If a state, political subdivision, or qualified private organiza- tion is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use. s93- concluded that the railroad should be relieved of its present service obligations and, to facilitate preservation of the line and its use in the interim as a trail, authorized the issuance of a CITU, Missouri-Kansas-Texas Railroad Company — Abandonment — St. Charles, Warren, Montgomery, Calloway, Boone, Howard, Cooper and Pettis County, Mo., ICC No. AB-102 (Sub-No. 13), served March 16, 1987. On April 22, 1987, the ICC issued the CITU. Missouri-Kansas- Texas Railroad Company — Abandonment — St. Charles, Warren, Montgomery, Calloway, Boone, Howard, Cooper and Pettis County, Mo., ICC No. AB-102 (Sub-No. 13), served April 27, 1987. As a consequence plaintiffs filed the present action in which they challenge the transfer of interest in the railroad right-of-way from M-K-T to DNR. Plaintiffs named M-K-T, DNR and Frederick A. Brunner, the director of DNR, as defendants. However, by subsequent order of the Court, the United States of America and eleven environmental and recreational interest groups (“Interest Groups”) were per- mitted to intervene as defendants.2 In addition, the Court granted the American Farm Bureau Federation and the Missouri Farm Bureau Federation leave to file briefs in support of plaintiffs as amici curiae. In their complaint, plaintiffs allege that their predecessors in interest granted a right-of-way over their property to the predecessors in interest of M-K-T. A representative con- veyance attached as Exhibit B to their complaint, and exe- cuted by the predecessors in interest of one of the plaintiffs and M-K-T, indicates that the right-of-way was conveyed 2 The Interest Groups are the Conservation Federation of Missouri, the National Wildlife Federation, the Rails to Trails Conservancy, the Lewis and Clark Nature Trail Foundation, the Sierra Club, the Paralyzed Veterans of America, BICYCLE USA, the Lewis and Clark Heritage Foundation, the American Hiking Society, the Katy Missouri River Trail Association and the American Rivers Conserva- tion Council. ‘id The Court refuses to find such a taking. First, because they have altogether failed to come forward with any authority to demonstrate that a state, acting pur- suant to a lawfully enacted federal statute, may be found to have taken property without just compensation. Second, and even if they could make such a demonstration, they have failed to show, as they are required to do if this Court is to review their claim, that they have sought compensation through the procedures provided by the state for obtaining such relief. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3117-121, 8/ L.Ed.2d 126 (1985); First English, 107 S.Ct. at 2389 n. 10. E. The State Law Claims [11] Plaintiffs and amici curiae contend that § 1247(d) violates numerous state constitutional and statutory provi- sions as well as state common law. Specifically, and insofar as pertinent to the Court, they contend § 1247(d) violates the due process clause contained in Article I, Section 10 of the Missouri Constitution, the impairment of the cbligation of 13 The fifth amendment takings clause applies to the states through the fourteenth amendment. See Chicago B & O R.R. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). - B 26- contracts clause contained in Article I, Section 13 of the Missouri Constitution and state property law. Upon a review of the arguments advanced by the parties, the Court finds that the state laws referred to above are preempted by federal law. As the Supreme Court recently observed, the cir- cumstances under which federal law may be said to preempt state law are familiar. Schneidewind v. ANR Pipeline Co., __. -;U.S. ___, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988). Congress may either explicitly define the extent to which its enactments preempt state law, or, in the absence of explicit statutory language, implicitly indicate an intent to occupy a given field to the exclusion of state law. Schneidewind, 108 S.Ct. at 1150. If Congress has not entirely displaced state law in a particular field, state law is preempted when it actually conflicts with federal law. Schneidewind, 108 S.Ct. at 1150. “Such a conflict will be found ‘when it is impossi- ble to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).’” Schneidewind, 108 S.Ct. at 1150-51 (citations omitted). In this case, § 1247(d) by its express terms preempts state law insofar as that law would permit reversion of the M-K-T right-of-way to plaintiffs while the right-of-way is being used on an interim basis as a trail. Moreoever, § 1247(d) is an adjunct to a federal regulatory scheme which the Supreme Court has viewed as plenary, exclusive and preemptive. See, e.g., Chicago & N.W. Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). Upon review, the Court concludes that the applica- ble state law would interfere with the federal objective of preserving railroad rights-of-way for future rail service through interim trail use and is therefore preempted. -B27- Plaintiffs and amici curiae have not presented any colorable arguments which would lead to a contrary conclusion. ORDER AND JUDGMENT Pursuant to the memorandum filed herein on this date, IT IS HEREBY ORDERED that plaintiffs’ motion for summary judgment be and it is denied. IT IS FURTHER ORDERED that defendants Missouri- Kansas-Texas Railroad Company, Department of ~'atural Resources and Frederick A. Brunner’s motion for summary judgment, defendants Conservation Federation of Missouri, et al.’s motion for judgment on the pleadings or, in the alternative, for summary judgment, and defendant United States of America’s motion for partial summary judgment be and they are granted. In light of the foregoing, IT IS HEREBY ORDERED, ADJUDGED and DECREED that judgment in this action be and it is entered in favor of defendants and against plaintiffs. Accordingly, the Court declares 16 U.S.C. § 1247(d) constitutional. APPENDIX C a4: SERVICE DATE MAR 16 1987 INTERSTATE COMMERCE COMMISSION DECISICN Docket No. AB-102 (Sub-No. 13) MISSOURI-KANSAS-TEXAS RAILROAD COMPANY — ABANDONMENT — IN ST. CHARLES, WARREN, MONTGOMERY, CALLAWAY, BOONE, HOWARD, COOPER AND PETTIS COUNTIES, MO Decided: March 6, 1987 By application filed September 26, 1986,! the Missouri- Kansas-Texas Railroad Company (MKT) seeks to abandon its 199.92-mile line of railroad between Machens (milepost 26.92) and Sedalia, MO (milepost 226.84). Public notice was properly given. Protests were filed by Missouri Depart- ment of Natural Resources (DNR); Missouri Rail Improve- ment Authority (Authority); Union Electric Company (Union); and MFA Incorporated (MFA). Comments were filed by United States Department of the Interior (DOI); Missouri Highway and Transportation Com- mission (Transportation Commission); Boone County Com- mission; City of St. Charles, MO; Town of Hartsburg, MO; Village of Rhineland, MO; St. Charles and Augusta Railroad (St.C&A); Rails-to-Trails Conservancy, National Wildlife Federation, and Conservancy Federation of Missouri (Com- menters); Paraquad; St. Charles Tourism Commission; | MKT’s application, initially filed August 25, 1986, was rejected by decision served September 26, 1986, due to a failure of publication. i Special Recreational Council of Greater St. Louis; Missouri Park and Recreation Association; Lewis & Clark Trail Heri- tage Foundation; St. Louis Disabled Voters Council; Boonsville Chamber of Commerce; Clinton Chamber of Commerce; St. Charles Quarry Company; Missouri Farm Bureau; Holiday Inn of St. Peters/St. Charles; and the follow- ing individuals: Donald J. and Delores I. Vitt, Richard H. Luecke, Pam Hinrichs, Mr. & Mrs. Richard Glass, Mary Stanley, Jeanne M. Kissell, Karl R. Barnickol, J. Donovan Larson, Carolyn Meyer, Philip G. Enns, Catherine I. Sandell, James and Kathleen M. Mikolajczak, A. W. Rueff, Helen Brune, Tim Von Engein, Mary L. Singleton, Sidney Eldringnoff, Dee Dokken, and Mr. and Mrs. Maurice L. Glosemeyer. We will also accept a late-filed comment by the Missouri Valley Steam Engine Ass’n (MoVal). The Railway Labor Executives’ Association (RLEA), the United Transportation Union (UTU) and Brotherhood of Locomotive Engineers (BLE) filed comments on behalf of employees. Based on the protests and comments, an investigation was instituted under modified procedure. Verified statements were filed by MKT, DNR, Commenters and Union. MKT replied. Most of the comments involve a proposal that the right-of-way be designated for interim use as a trail under the National Trails System Act, 16 U.S.C. 1247(d) (Trails Act). Before we consider the Trails Act issue, we must first deter- mine whether the public convenience and necessity require Or permit abandonment. TRAFFIC The line is located beside the Missouri River and is part of MKT’s main line between St. Louis and Parsons, KS. Most of the traffic was overhead traffic between St. Louis and the remainder of MKT’s system. Some local traffic was also generated. Effective March 27, 1986, MKT was granted overhead trackage rights over a parallel line of the Missouri 3. Pacific Railroad Company (MP) between Sedalia and St. Louis.2 MKT then rerouted its overhead traffic onto MP’s line. MKT continued to provide service on the subject line for local traffic until October 6, 1986, when the line was embargoed. The line was heavily damaged by floods and is currently out of serv.ce. MKT asserts that the amount of local traffic generated by the line does not justify the rehabilitation expense needed to resume service. MKT’s data shows that, in 1984, it handled 44,684 car- loads on the line, of which 43,778 were overhead and 906 locally generated. In 1985, it handled 45, 138 carloads, of which 44,362 were overhead and 776 locally generated. In the first three months of 1986, it handied 12,829 carloads, of which 12,594 were overhead and 235 locally generated.” The principal shippers were MFA, whose traffic was grain and fertilizer ingredients, and Westinghouse Electric Com- pany (Westinghouse), whose traffic was _ principally petroleum, and iron and steel sheets. Before April 1986, MKT operated one train each way on the line daily. After the diversion of bridge traffic onto MP’s line, MKT states it provided local service on an “as needed” basis ——- about one trip per month. . 2 See Notice of Exemption in F.D. 30805, Missouri-Kansas-Texas R. Co. — Trackage Rights —— Missouri Pacific R. Co. (not printed), served April 9, 1986. 3 MKT’s data shows that “significant” users generated 879 carloads in 1984, 736 carloads in 1985, and 217 carloads in the first three months of 1986. -C4- REVENUE AND COSTS The following cost and revenue data were submitted: Base Year 1984 1985 4/85 - 3/86 Revenues $10,572,105 $12,319,883 $11,770,975 Avoidable Costs 7,091,910 6,267,023 6,428,770 Profit 3,480,195 6,052,860 5,342,205 The cost and revenue data were based on operations con- ducted prior to the diversion of overhead traffic onto MP’s line. Therefore, MKT submits that the data does not repre- sent a true picture of the line. It suggests that its subsidy year calculations are a more reliable indication of revenues and cost attributable to the line, for they reflect local opera- tions. The subsidy year projects revenues of $445,425, and avoidable costs of $2,022,774, resulting in an avoidable loss of $1,577,349. We agree with MKT ‘that its data are dis- torted because they include bridge traffic which need not move over the line.* Under these circumstances and consid- ering that no objection has been submitted to MKT’s revenue and cost data, we will accept MKT’s. subsidy year projection to indicate operations for the line for local traffic only. REHABILITATION As stated above, the line is inoperable due to flood dam- age and will need repair before service is resumed. 4 In the absence of evidence that rerouting of bridge traffic creates inefficiencies, our long standing practice is to accept railroad management rerouting decisions. att S:. However, the amount of rehabilitation required is uncertain. MKT claims that rehabilitation of the line would cost $4,057,629. Before the iine was damaged, MKT states that it maintained the line at Federal Railroad Administration (FRA) Class II standards. At that level, MKT operated the line at 25 miles per hour. MKT proposes to restore the line to Class II level. MKT notes that the expenditure for rehabilitation to resume service would be about 30 percent of its entire track and bridge maintenance budget. Union objects that MKT’s rehabilitation estimate is in- flated. It claims that the cost of rehabilitation should be for the minimum FRA Class I, because MKT has not justified a higher standard. It cites Southern Pacific Transp. Co. — Abandonment, 360 I.C.C. 138, 144 (1979) for this proposition. While MKT responds that the line was part of its main line, and it could not operate competitive service at the 10 mile-per-hour speed limit for a Class I line, we also question MKT’s rehabilitation estimate. The overhead traffic, which was the vast amount of traffic handled up to April 1986, is now being moved on MP’s line. Thus, the traffic level on the subject line would be substantially reduced. Also service levels would be reduced to an “as needed” basis to handle only iocal traffic. In view of these circumstances, MKT has not justified rehabilitation of the line to Class II levels. Nevertheless, we recognize that substantial repairs would be required before service could be resumed. Without alternative cost es- timates, we cannot recompute the rehabilitation that is needed to restore the line to Class I standards. Accordingly, we can conclude only that considerabie rehabilitation is necessary, but the cost for that rehabilitation is uncertain. O46. OPPORTUNITY COST Continued operation of the line will also require MKT to incur an annual opportunity cost. Opportunity cost reflects the economic loss experienced by the carrier from foregoing a more profitable alternative use of its assets. These costs are developed by multiplying the net liquidation value (NLV) of the line by a rate of return equal to the railroad cost of capital as determined by the Commission. The most recent Commission determination of railroad cost of capital is 18.6 percent. See Ex Parta No. 274 (Sub-No. 3C) Abandonment of R. Lines — Use of Opportunity Costs, 1 1.C.C. 2nd 203 (1984). MKT did not compute its opportunity cost for continued operation of the line. However, we can use MKT’s unchal- lenged NLV of $5,859,491 in its cost data to compute oppor- tunity cost. Under the methodology, MKT’s opportunity cost would be $1,089,865, and would still be substantial even if a lower rate of return were used. We note, however, that the NLV was computed prior to the flood that damaged the line. The damage probably reduced the NLV to some extent. Nevertheless, we conclude that MKT would still incur a substantial opportunity cost, because continued operations could only be accomplished if the line were rehabilitated and additional track material were committed to the line, thereby restoring at least some of the lost value of the line that may be attributable to the flood. SHIPPER AND COMMUNITY INTEREST Protests and comments by DNR, civic organizations, and individuals principally concern the proposed use of the right-of-way as a trail. We will discuss these concerns below. We now discuss issues raised by shippers and com- munity interests pertinent to the abandonment application. Salvage will not affect use of the right-of-way as a trail because bridges, culverts and other structure will remain intact. Nor will salvage of this segment require pre-salvage permits or consultation with Federal or State agencies. However, SEE recommends a condition that if during salvage, archeological resources, including scattered remains are uncovered, the State Histori- cal Officer should be notified. That condition will be imposed. The second alternative would be abandonment of the line. Abandonment would allow MKT to salvage the entire line with possible adverse effect on historical structures such as bridges. Also MKT will no longer be obligated to maintain structures, resulting in further adverse impact. Removal of bridges and other structures (that would be permitted follow- ing abandonment but would not be permitted during trails use) could have adverse short-term impacts on streams and waterways. Upon abandonment, portions of the right-of-way MKT held by easement will revert to adjacent landowners. After reversion, landowners could convert the right-of-way > SEE also recommends that MKT be permitted to salvage track and materials, but only between Booneville and Rhineland. This would, as a result, require MKT to leave intact for the period of the public use condition track and materials on the segments St.C & A and MoVal propose to acquire under the public use condition. We do not agree with SEE that is [sic] is necessary to require MKT to -leave track and materials intact on these segments. Under the CITU (issuance of which will be delayed until this decision becomes final), MKT may only begin salvage of track and material 30 days after the CITU is issued. MKT should not be precluded from deriving immediate benefits for sale or reuse of the track and materials. Nevertheless, should St. C & A and MoVal intend to go forward with their proposals to acquire segments of the line for excursion trains under the public use conditions, they would have ample time to negotiate separately with MKT to acquire track and materials. -C 16- into other uses. Long-term adverse consequences could result if une alternative uses result in loss of wildlife habitat. SEE recommends that abandonment be conditioned to require MKT to comply with section 106 of NHPA. It also recommends that, before salvage, MKT consult with the U.S. Army Corps of Engineers and appropriate Federal and State agencies and obtain permits if necessary. These condi- tions will also be imposed. The third alternative considered by SEE is public use sale under section 10906. The segment SEE considers more likely to be involved in a sale for public use is between Booneville and Sedalia, where MoVal proposes to operate steam excursion trains. SEE notes that the segment sought by St. C & A between Machens and Augusta also for a steam excursion train was severely damaged by floods and would require extensive repairs. SEE asserts that a public use sale may have adverse environmental impacts on historical o: archaelogical [sic] resources and water and wetland quality. These impacts would primarily result from salvage opera- tions. It recommends that public use sale be subject to the same conditions it proposed for abandonment. We do not agree with this recommendation. A public use condition under section 10906 is intended to facilitate negotiations for alternative public use of rights-of- way that we approve for abandonment. However, section 10906 does not provide us with authority to approve the sale of right-of-way following abandonment. Thus, we cannot subject the public use purchaser to environmental or other conditions. On the other hand, since the sale involves aban- doned right-of-way, MKT would still be obligated to comply with environmental conditions imposed on the abandonment. Accordingly, no additional conditions need be imposed on public use sale. The final alternative would be continued operation under the financial assistance procedures in 49 U.S.C. 10905. These procedures take precedence over interim trail use i - under section 1247(d) and public use conditions under sec- tion 10906. SEE asserts that this alternative could involve adverse impacts on historical and archaelogical [sic] resources and recommends conditions to require compliance with section 106 of NHPA. Since the 10905 procedures can be invoked only if an offer of financial assistance is made, it is premature to consider imposing a condition now. We will consider imposing a condition if we issue a decision authorizing rail services to be continued under section 10905. We agree with SEE’s analysis and its conclusion that interim trail use will likely have the least extensive environ- mental impact. Nevertheless, by our imposition of the environmental conditions set forth below, any adverse environmental impacts resulting from either MKT’s discon- tinuance (if an Interim Trails Use Agreement is reached) or its abandonment (if an Interim Trail Use Agreement is not reached), can be sufficiently mitigated. We will impose the following environmental condi- tions: under section 10905. 1. If interim trail use agreement is reached under the CITU, MKT must notify the State Historical Preservation Office if, during salvage, archaelogical [sic] resources, including scattered remains, are uncovered. 2. If abandonment is effected under the CITU, MKT must (a) comply with the procedures in section 106 of NHPA and consult with the State Historical Preservation Officer for appropriate documentation of bridges and structures included in the National Register of Historical Places if they are to be demolished or substantially altered; and (b) consult with and obtain necessary permits from the U. S. Army Corps of Engineers and other Federal and State agencies before sal- vaging bridges and structures. -C 18- We find: The present and future public convenience and necessity permit abandonment by MKT of the line of railroad described above, subject to: (1) the employee protective conditions in Oregon Short Line R. Co. — Abandonment — Goshen, 360 I1.C.C. 91 (1979); (2) the terms and conditions of the CITU that will be issued; (3) the condition that MKT keep intact all the right-of-way underlying the track, includ- ing bridges and culverts, for a period of 180 days from the effective date of this decision to enable any State or local government agency or other interested person to negotiate the acquisition of the right-of-way for public use; and (4) the environmental conditions discussed above. Abandonment of the line will not result in a serious adverse impact on rural and community development. As conditioned, the action will not significantly affect either the quality of the human environment or energy conservation. It is ordered: 1. Our findings will be published in the Federal Register on March 16, 1987. An offer of financial assistance to allow rail services to continue must be received by MKT and the Commission within 10 days after publication. The offer must comply with 49 U.S.C. 10905 and 49 CFR 1152.27(b). 2. Offers and related correspondence to the Commission must refer to this proceeding. The following notation must be typed in bold face on the lower left-hand corner of the envelope: “Rail Section AB-OFA”. 3. Subject to the conditions set forth above, and provided that no offer for continued rail operation is received, a CITU will be issued. MKT must not effect abandonment or discon- tinuance of operations and track and material salvage until permitted to do so under the terms of the CITU. 4. If abandonment or discontinuance of operations is effected, tariffs applicable to the line may be cancelled upon -C19- not less than 10 days notice to this Commission. When filing schedules cancelling tariffs applicable to this line, MKT must refer to the certificate by docket number and date. 5. This decision will be effective 30 days from the date of service. By the Commission, Chairman Gradison, Vice Chairman Lamboley, Commissioners Sterrett, Andre, and Simmons. Commissioner Simmons dissented with a separate expres- sion. Vice Chairman Lamboley dissented and will submit a separate expression at a later date. Noreta R. McGee Secretary (SEAL) COMMISSIONER SIMMONS, dissenting: The abandonment appears to be related to the pending merger between Union Pacific Corporation and Katy Industries. I believe that the abandonment application should have been filed in conjunction with this proposed consolidation. In this manner, the Commission can then determine the overall operating plans of the two rail carriers serving Missouri and analyze the total impact of a con- solidated UP-MP-MKT on the rail needs of the Missouri shippers. APPENDIX D : : : . .. Mts [DEED] This Indenture, made on the 4th day of April A.D. 1884 by and between Berard Maskey of the County of Warren and State of Missouri party of the first part, and the Cleveland, St. Louis and Kansas City Railway Company of the State of Missouri, party of the second part: Witnesseth — That the said party of the first part in con- sideration of the sum of Three Hundred Dollars to him in hand paid, the receipt of which is hereby acknowledged, and in further consideration of a Railroad to be constructed and maintained by the said party of the second part, does by these presents give, grant, and quit claim unto the said party of the second part or their assigns, for the purpose of a right-of-way for a Railroad, and for no other purpose, a strip of land one hundred feet in width, as the same is or may be located by said Company for the purpose as aforesaid, being in front of and extending across the following described land, lying, being and situated in the County of Warren and State of Missouri, to wit: [metes and bounds description omitted] To have and to hold the same with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part and to their assigns, for the purpose of establishing, constructing and maintaining a Railroad on the said land herein conveyed, and for no other purpose. Provided, that this shall in no case interfere with the occupancy and use of such land by or under the owner thereof until the construction of said road is commenced and as it may progress. In witness whereof the said party of the first part has hereunto set his hand and seal, the day and year first above mentioned. [Signatures of grantors and notarization omitted. ] Page 1 of 2 No. 89- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1989 Maurice and Dolores Glosemeyer, et al., Petitioners, vs. Missouri-Kansas-Texas Railroad, et al., Respondents. STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) ee, Donald A. Johnson being first duly sworm, deposes and says: I am a citizen of the United States and a resident of or employed in the county aforesaid. I am over the age of 18 years and not a party to the said action. My business addresss is 3550 Wilshire Blvd., Suite 916, Los Angeles, California 90010. On October 3, 1989, I served the within PETITION FOR WRIT OF CERTIORARI on the inter- ested parties in said action by placing three true copies thereof with first-class postage fully prepaid, in the United States post office mailbox at Los Angeles, California, in sealed envelopes addressed as follows: EDWARD F. DOWNEY HENRY MENGHINI ROBERT M. LINDHOLM 214 North Broadway Assistant Attorney Generals St. Louis, MO 63102 - Post Office Box 899 Jefferson, City, MO 65102 Page 2 of 2 CHARLES MONTANGE LOUISE F. MILKMAN Attorney at Law U.S. Dept. of Justice 1400 Sixteenth St., N.W. 10th and Pennsylvania Ave., N.W. Suite 301 Washington, D.C. 20530 Washington, D.C. 20036 That affiant makes this service, for MICHAEL M. BERGER, Coun- sel of Record, of FADEM, BERGER & NORTON, Attomeys for Petitioners herein, and that to the best of my knowledge all persons required to be served in said action have been served. aay", : {) — yeah’ LA t ieor— Donald A. ons On October 3, 1989, before me, the undersigned, a Notary Public in and for said County and State, personally appeared Donald A. Johnson, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. OFFICIAL SEAL Theodore Matsuo Wilden NOTARY PUBLIC - CALIFORNIA LCS ANGELES COUNTY My comm. expires NOV 30, 1990 en Baer cite ROTTS se > ee A, Wil Notary Public in and for said County and State Lawyers Brief Service / Legal Printers / (213) 383-4457 / (714) 720-1510 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0421%3A1. Public record. Not legal advice.