Opposition Brief — Glosemeyer v. Missouri-Kansas-Texas Railroad

= =~ eee

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1989

MAURICE AND DOLORES GLOSEMEYER, et al.,

- Petitioners,

MISSOURI-KANSAS-TEXAS RAILROAD, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION ON BEHALF OF RESPONDENTS

MISSOURI-KANSAS-TEXAS RAILROAD,

MISSOURI DEPARTMENT OF NATURAL RESOURCES,

ET AL., AND

CONSERVATION FEDERATION OF MISSOURI, ET AL.

TO PETITION FOR WRIT OF CERTIORARI

Henry MenGHINI * EDWARD DowNEY

Y Evans & Dixon ROBERT LINDHOLM *

( ; Office of the Attorney General

of the State of Missouri

P.O. Box 899

Jefferson City, Missouri 65102

Attorneys for Respondents

Department of Natural

Resources, et al.

QUESTIONS PRESENTED

This case involves some of the same questions pending

before this Court in Preseault v. ICC, No. 88-1076, argued

November 1, 1989, relating to 16 U.S.C. §1247(d), a

statute administered by the Interstate Commerce Commis-.

sion (ICC) dealing with “railbanking” (preserving rail

corridors for future rail use through compatible interim

uses). Although both the court of appeals in the under-

lying decision in Preseauvlt and the court of appeals in

the underlying decision in the case at bar unanimously

determined that 16 U.S.C. §1247(d) is fully constitu-

tional, they did so for different reasons. The court of

appeals in Preseault found that 16 U.S.C. § 1247(d) was

not a taking. The court of appeals in the case at bar did

not reach that issue, instead finding that if § 1247/d)

might in some instances result in a taking, just compen-

sation is available under the Tucker Act, 28 U.S.C.

$ 1491. Because there is no even arguable conflict in the

circuits on this latter point, a denial of certiorari is ap-

propriate and not simply a deferral pending the outcome

of Preseault, as intimated in petitioner “Glosemeyer’s

“Questions Presented.” The basic questions presented in

this case are as follows:

1. Does Congress lack power under the Commerce

Clause to preserve rail transportation corridors for pos-

sible future use?

2. Does regulation of rai] abandonments by ICC, which

regulation routinely frustrates results which otherwise

would occur under state law, constitute a “taking” re-

quiring just compensation?

3. Has Congress withdrawn the just compensation rem-

edy provided by the Tucker Act with respect to actions of

the ICC regulating rai] abandonments?

4. Does a legitimate Congressional] rai] regulatory pur-

pose (preserving corridors for future use) somehow be-

(i)

ii

come noxious when implemented via a compatible interim

use (trails) which interim use is subservient to, and

finances, preservation of the corridor for future rail use,

even though both railroads and trails are “public high-

ways” and mutually subject to regulation as such?

5. Should this Court overturn long-established prece-

dent, specifically confirmed in the rail regulatory context,

that the Tucker Act is available unless expressly with-

drawn?

TABLE OF CONTENTS

Page

ge 5 | i

Ey 8 gg | eee iv

STATEMENT OF THE CASE ..000oo.o.o....cc-cccccceseseeeeeee- 2

A. The Origin of this Case and Petitioner’s Claims

i sscnwepvasinnpeendonten’ 2

B. ICC Authority over Abandonments..................... 4

C. Preservation of Rail Corridors............0000000.......... 5

D. There Is No Conflict in the Circuits ........00000...... 7

SUMMARY OF ARGUMENT ...............00000000000 8

REASONS FOR DENYING THE WRIT ..................... 9

I. 16 U.S.C. § 1247(d) IS WITHIN CONGRESS’S

POWER UNDER THE COMMERCE CLAUSE.. 9

Il. 16 U.S.C. §1247(d) IS NOT A TAKING

WITHOUT JUST COMPENSATION ........0.... 17

A. 16 U.S.C. §1247(d) Is Reasonable Regula-

cis siieicenaccadicetpieniucnpandecininecsonsecesose 17

B. In Any Event, A Just Compensation Rem-

EE 22

a canetnsnbabrneawnnnidscnaceessesee 27

Nee encncsseninsssssscuonenseocsnsea la

(iii)

iv

TABLE OF AUTHORITIES

Cases

Addyston Pipe & Steel Co. v. United States, 175

BR MERE beatipen ean eine ste Dor vs A Oe

Anderson v. Knoxville Power & Light Co., 16

Tenn. App. 259, 64 S.W. 2d 204 (1938) .....000.....

Brainard v. Mississquoi R.R., 48 Vt. 107 (1874)...

Cater v. Northwestern Telephone Exchange Co.,

60 Minn. 548, 68 N.W. 111 (1985)........00000000000..

Cherokee Nation v. Southern Kansas Railway, 135

es Ne EE ces cnsestcncecoenaschembiaean ck acmehitananitantess

Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co.,

1 er ne Ce Biting hicetsdicls caine caatitcees

Chicago, R.I. & P. Ry Co. v. George, 145 Mo. 38,

ef MG RRC nin CI ee el ont Ae

Colorado v. United States, 271 U.S. 153 (1926)...

Duke Power Co. v. Carolina Environmental Study

Group, Inc., 4388 U.S. 59 (1978) ..22.......0...cccceeeceeeeee

Faus v. City of Los Angeles, 67 Cal.2d 350, 62

Cal. Rptr. 193, 481 P.2d 849 (1967) -...00 0.

Glosemeyer v. Missouri-Kansas-Texas Railroad,

685 F. Supp. 1108 (E.D. Mo. 1988), aff’d, 879

HF me BAG CUT CID, FI iv esicsctcrccvcticncensnssccnvecersensi

Haeussler v. Braun, 314 N.W.2d 4 (Minn. 1981)..

Hatch v. Cincinnati & L.R. Co., 18 Ohio St. 92

CRIED -chccandisanes Woceiaiiichnd iniedenasaccecaea aba dadaceminaiieets

Heart of Atlanta Motel, Inc. v. United States, 379

Rs i I sicccetinis Actacoaccetcnieeelaeeendaabeniieion cone

Hennick v. Kansas City Southern Ry. Co., 289

8 BRO Tne En

Hodel v. Virginia Surface Mining & Reclamation

pr, | OS O°) Peemancer mean

Houston, E. & W. T. Ry Co., 234 U.S. 342 (1914)..

ICC v. Maine Central Railroad Co., 505 F.2d 590

| Re st ht ee

Kansas City Area Transportation v. Ashley, 555

S.W. 2d 9 (Mo. 1977), cert. denied, 434 U.S.

ROD Ie ined aetkisdicccocinnssinseciceceeceeleeesintiaa anita ta

Kansas Electric Power Co. v. Walker, 51 P.2d

DOG CHRO: - HD wvicnisnccicicinaniststinatiabiataiiiiaicisiiepiaaaics

v

TABLE OF AUTHORITIES—Continued

Page

Keystone Bituminous Coal Association v. De

Benedictis, 480 U.S. , 107 S.Ct. 1232

CII aahecerenecesnibintennenninianieis tcnsapiecneitrimieinanamnemcesintpmeinite 3

Lehigh & N.E. Ry Co. v. ICC, 540 F.2d 71 (3d Cir.

1976), cert. denied, 429 U.S. 1061 (1977) ........... 5

Louisville & N.R. Co. v. Mottley, 219 U.S 467

RUE cccikics nseteasearscnshasntbseudonceyabinnscle vubbstaumicatniestiichubanaies 9

Martens v. B & O Railroad Co., 289 S.E.2d 706

4 SS Reece eee en 18

Matter of Boston & Maine Corp., 596 F.2d 2 (1st

Se II sta sists hsnhiecniccclins hehehe cgebadeieeciomiinsleaasehiuglinionsil 21

Mobile & Gulf R. Co. v. Crocker, 455 So.2d 829

Ci TR ctcrcesctesncninannionnessessaininianmenviesiaientelchinesitiiseien 22

Moeller v. Interstate Commerce Commission, 201

F. Supp. 588 (S.D. Iowa 1962) .........................000 9

National Wildlife Federation v. ICC, 850 F.2d 694

i i I ieninie cecesstainenitaientnvsimnipipinpedidinnmanints 10, 16

New Orleans Terminal Co. v. Spencer, 366 F.2d

i gk: Le | ee eeemeereteN || Ena 4

New York v. United States, 257 U.S. 591 (1922).. 9

Nollan v. California Coastal Commission, 108 S.Ct.

alae naapeaiae 20

North Carolina v. United States, 210 F. Supp. 675

eb ee SS, ees 9

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation and Development Commis-

Pg mR | ee eee 12

Philadelphia, B. & W. R.R. Co. v. Schubert, 224

I tries 9

Reed v. Meserve, 487 F.2d 646 (1st Cir. 1973).... 10, 14

Regional Rail Reorganization Act Cases, 419 U.S.

I a ia ee 23, 24, 25

Ruckelshaus v. Monsanto Corp., 467 U.S. 986

re oa lin ieee iliieshecinbemimaneenimaete 23, 24

St. Louis-San Francisco Ry Co. v. Pillard, 43

ee IE CUR, BUI enc sinnsitenneigpencenecnonemanoani 18

Schechter Poultry Corp. v. United States, 295 U.S.

SE Ra Na LC Oe nee 19

Southern Railway v. United States, 222 U.S. 20

EE NERA REN eee eer ON en CTT 19, 21

vi

TABLE OF AUTHORITIES—Continued

State ex rel. Washington Wildlife Preservation,

Inc. v. State, 329 N.W. 2d 543 (Minn. 1983),

cert. denied, 463 U.S. 1209 (1988) .......................

Telecommunications Research & Action v. FCC,

760 Pia TE CO. Cis TOI access sens.

Trustees of the Diocese of Vermont v. State, 145

Ve. GEO, SOG A.B WEE CHG) ncn cccenccecccessscccc.s.e

United States v. Locke, 471 U.S. 84 (1985)............

United States v. O’Brien, 391 U.S. 367 (1968)...

United States ». Riverside Bayview Homes, 474

rs ee ~ eis cce eee cokes

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

PII iis ssoncono anes isancehthemupsnsinnsiiioss aibladdeeekmmteaeeaieaii

Village of Euclid v. Ambler Realty, 272 U.S. 365

RI a cesickasddecaschccnsilschcdeaceicacoemitaleelinaeeinaiacd aticalas

Administrative Cases

Chicago & A. R.R. Co. v. Toledo, P. & W. R.R. Co.,

ROR TS Bak Cece ee

Missouri-Kansas-Texas Railroad Company—A ban-

donment—in St. Charles, et al., Counties, Mis-

souri, AB-102 (Sub-no. 13), served March 16,

1987 (unpublished, available via Lexis Trans

BOD niiitcessccictlitainitisnstaia ipcaiatiengs dite tia iain 12,

oe Fg ee em

Oregon Short Line R. Co.—Abandonment—

Gookom, BOD BGs GE CEC Oe nntitnttnicsatisitcainitintanes

Rail Abandonments—Use of Rights-of-Way as

Trails, ICC2d , served May 6, 1986....

Rail Abandonments—Use of Rights-of-Way as

Trails—Supplemental Trails Act Procedures,

Ex parte 274 (Sub-no. 13), served May 26, 1989

(unpublished, available via Lexis Trans li-

ET

U.S. Constitution

Pp. ae . © % gears

CN CI os tinstitiinnasccsissctisiscasasiaptiitet ciepantaieaeiitaaeaetians

Fifth Amendment ................ na iguniiuesneaianeaaaaaaalae

Page

20

9, 22

17, 23

14, 16

14

23

vii

TABLE OF AUTHORITIES—Continued

Statutes Page

National Trails System Act, 16 U.S.C. § 1247(d)..passim

NT i aires as hi tamtcnin 25

§101 of P.L. 98-11 (notes to 16 U.S.C.A

RE ERSTE ER LEN ene eae ND 24, 25

Price Anderson Act, 42 U.S.C. § 2210 000002... 25, 26

Railroad Revitalization and Regulatory Reform

I nT alasiessumanuniageads 4,11

Regional Rail Reorganization Act, 45 U.S.C. § 701.. 24, 25,

26

Revised Interstate Commerce Act,

a ac cetbuiheeen 4,13

a cenavecpoiinanain 4

os cccadgieennensianinien 5, 6

ns ote tuniantl 5, 6, 22

Staswers Act, O46 Bint. 1606 .... ................00..00..0005c0.000.0 4

Tucker Act, 28 U.S.C. § 1491........00...000002.... 4, 7, 8, 23, 25, 26

a enminepuhiionmeenbbanabase 3

co cenennnbglntnansqmnneuuees 3

SE a Rr eae 25 -

i a ETE eat OE ED 25

A re Oe Nobili csecracnsnocanaeetrivensavevhiesetonssbouenats 20

eS einen pdesobaaesebibacanes 5

Other

J. Barnard & D. Beckmann, Feasibility of Land

Banking Railroad Right-cf-Way (Legis. Env.

Adv. Group, University of Iowa, Jan. 1981)... 10

H.R. Rep. No. 28, 98th Cong., Ist Sess. 0... .......... 23

a a anshieyaiowunpaionevubpienss 19

Nichols on Eminent Domain § 10.221 (J. Sackman

a ianwtena 1S cts ign RS 19

Preseault oral argument transcript .......................... 21

AE a 1

Ne nn sss ceceuuvecunwasencevensanens 26

U.S. DOT, Availability and Use of Abandoned

Railroad Rights-of-Way (1977) .................. Poeenee 11

a eanmalaninios 16

54 Fed. Reg. 8011 (Feb. 24, 1989) (ICC policy

AS OC Ee 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-564

MAURICE AND DOLORES GLOSEMEYER, et al.,

.. Petitioners,

MISSOURI-KANSAS-TEXAS RAILROAD, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION ON BEHALF OF RESPONDENTS

MISSOURI-KANSAS-TEXAS RAILROAD,

MiSSOURI DEPARTMENT OF NATURAL RESOURCES,

ET AL., AND

CONSERVATION FEDERATION OF MISSOURI, ET AL.

TO PETITION FOR WRIT OF CERTIORARI

Respondents Missouri-Kansas-Texas Railroad, Missouri

Department of Natural Resources, et al.,1 and Conserva-

tion Federation of Missouri, et al.,? respectfully request

1The other “State” defendant/appellee below was Frederick

Brunner, Director of the Missouri Department of Natural Re-

sources. The current Director of the Missouri Department of Nat-

ural Resources is G. Tracy Mehan, III, who should now be sub-

stituted as a respondent herein. Sup. Ct. Rule 40.3.

2 This group of respondents includes National Wildlife Federa-

tion, Rails to Trails Conservancy, the Lewis and Clark Nature

Trail Foundation, Sierra Club, the Paralyzed Veterans of America,

BICYCLE USA ‘now League of American Wheelmen), the Lewis

and Clark Heritage Foundation, American Hiking Society, the

Katy Missouri River Trail Association, and American Rivers Con-

servation Council.

2

that this Court deny the petition for writ of certiorari

sought by petitioners Glosemeyer, et al., seeking review

of the judgment of the United States Court of Appeals

for the Eighth Circuit in this case.’

STATEMENT OF THE CASE

This case involves the constitutionality of section 8(d)

of the National Trails System Act (“Trails Act’), 16

U.S.C. § 1247(d). Section 1247(d) seeks to preserve rail

corridors for future rail use (a concept known as “rail-

banking”). Procedurally, it accomplishes this through

permitting ICC to authorize cessation of current rail ser-

vice obligations while maintaining ICC authority over the

corridor to order restoration of rail service. Retention of

ICC rail regulatory authority serves, as the statute on its

face declares, to preempt state or local law under which

parcels in the rail corridor might otherwise revert to ad-

jacent property owners or original grantors. Financially,

the statute fosters its railbanking ends by transferring

the preservation costs and burdens from the rail carrier

to the railbanker (usually a state or local agency, but

sometimes a qualified private conservation organization).

In order to induce volunteers to assume the preservational

costs and burdens, § 1247(d) allows the railbanker to use

the corridor as a public recreational] trail in the interim—

a use compatible not only with restoration of rail service

in the future but also consistent with the “public high-

way” nature of a railroad right-of-way.

A. The Origin of this Case and Petitioner’s Claims Here.

This case arises out of a quiet title action filed in Mis-

souri state court, properly removed by the Missouri De-

partment of Natural Resources and Missouri-Kansas-

Texas (“Katy”) Railroad to federal district court. The

* For ease of exposition, we will refer to petitioners Glosemeyer,

et al., in the singular as “petitioner” or “petitioner Glosemeyer”

herein.

3

quiet title proceeding purportedly involved the ownership

of interests in a 199-mile long railroad right-of-way,

stretching along the Missouri River from Machens (near

St. Louis) to Sedalia.‘ This line is a former mainiine of

the Katy system, now being merged with the Union

Pacific/Missouri Pacific system.

Specifically, petitioner Glosemeyer contends that he

owns “reversionary” interests in various parcels in the

corridor which would have vested in him all interests in

these portions of the right-of-way but for the application

of 16 U.S.C. §1247(d). Petitioner did not seek judicial

review of the ICC order regulating this corridor under

16 U.S.C. § 1247(d). Under 28 U.S.C. § 2344, applicable

pursuant to 28 U.S.C. § 2321, petitioner had only 60 days

in which to seek such review. The ICC order is now final

and not subject to judicial review. Telecommunications

Research & Action v. FCC, 750 F.2d 70, 75 (D.C.Cir.

1984). The only issue left to litigate from a collateral at-

tack on an ICC order in state court upon removal to fed-

eral district court is the constitutionality of the under-

lying statute, 16 U.S.C. §1247(d). Sie Keystone Bitu-

minous Coal Ass’n v. De Benedictis, 45) U.S. , 107

S.Ct. 1282, 1247 (1987) (sole question on facial challenge

is whether the “mere enactment” of statute constitutes

a taking).

Petitioner, resigning himself to that issue here, makes

what amounts to only a very limited claim against the

statute in his Petition for Certiorari. His argument that

the statute is unconstitutional] rests almost exclusively

upon characterizing § 1247(d) in pejorative terms, and

asserting that Congress lied when it stated that the statute

had a rail regulatory purpose. He says that 16 U.S.C.

4 Petitioner Glosemeyer below declined to respond to discovery

aimed at establishing an evidentiary basis for the various title

claims made in his original complaint. The record is therefore

void of any evidentary support for petitioner's broad claims of

property interest in this corridor.

4

§ 1247(d) is a “rails to trails scheme”; he claims it is a

land grab for parks; he contends (with no evidence) that

none of the lines covered by it will ever be restored for

rail use; and he belittles Congress’s express declaration of

its interest in preserving the corridor for future use.

Although the constitutionality of §1247(d) as applied

here is not at issue, he also asserts that the 199-mile

former Katy mainline is too junky ever to be restored.

On the strength of these pejoratives and allegations of

congressional deceit and duplicity, he claims that section

8(d) is a “taking,” rather than reasonable regulation,

and he argues that the traditional remedy for “regulatory

takings”—namely, the Tucker Act, 28 U.S.C. § 1491—

has been withdrawn. Petitioner’s “facts” are colorful, but

self-serving and largely imaginary. Petitioner’s conclu-

sions amount to demands that Congress’s determinations

of transportation policy be second-guessed, not only by

petitioner but also by this Court. Petitioner’s conclusions

about the unconstitutionality of 16 U.S.C. § 1247(d) are

accordingly groundless.

B. ICC Authority over Abandonments.

The Interstate Commerce Commission has long regu-

lated all rail abandonments. No abandonment of a rail

line in interstate commerce is permissible absent a license

from the ICC.’ Congress, concerned about the system bank-

ruptcies in the 1560’s and early 1970's, adopted two major

statutes (the Railroad Revitalization and Regulatory Re-

form Act® and the Staggers Act’) easing railroads rate

regulation and rail line abandonment requirements. Un-

der the impetus of these statutes, ICC has moved away

from the principle of “cross-subsidization.” This concept,

as applied to rai] lines, seeks to preserve money-losing

549 U.S.C. § 10903-04; ICC v. Maine Central Railroad Co., 505

F.2d 590, 593 (2d Cir. 1974) ; New Orleans Terminal Co. v. Spencer,

366 F.2d 160, 164-66 (5th Cir. 1966).

* 90 Stat. 31.

——1 94 Stat. 1895.

5

lines by offsetting losses against profits from money-

making lines.*

Congress recognized that easing abandonment require-

ments and moving away from “cross-subsidization” of

money-losing lines in order to preserve them would result

in an increase in abandorments. Indeed it did. Abandon-

ment approvals jumped from approximately 1000 miles

per year to approximately 3000 miles per year. This was

cause for concern. The current contraction of the railroad

industry may be viewed not so much as a manifestation

of historic inevitability, but as a reflection, among other

things, of (a) anachronistic cost burdens with which

railroads have been saddled and (b) significant tax sub-

sidies enjoyed by competing surface transportation modes.

Especially given the well-established recognition that rail-

roads are one of the most environmentally sound, energy

efficient forms of surface transportation (45 U.S.C.

§ 801), it is therefore not implausible to plan for a rein-

vigoration of the industry in the future. It is certainly

not unreasonable at least to preserve the rai] option. That

is what 16 U.S.C. § 1247(d) is about as much as “trails.”

C. Preservation of Rail Corridors.

Consonant with the above, Congress has adopted a

variety of measures to preserve rail lines for continued

and future use which would otherwise be abandoned un-

der the new policy against cross-subsidization. Consonant

with the policy against cross-subsidization, all the meas-

ures aimed at corridor preservation impose minima] bur--

dens upon the rail carrier seeking abandonment.

The various measures include 49 U.S.C. § 10905, 49

U.S.C. § 10906, and 16 U.S.C. §1247‘d). Under 49

® An example of a case affirming this approach on abandonment

of lines is Lehigh & N.E. Ry Co. v. ICC, 540 F.2d 71, 84 (2d Cir.

1976), cert. denied, 429 U.S. 1061 (1977) (indefinite delay in au-

thorizing abandonment not a taking as long as the railroad’s entire

operation is not thrown into a loss). As applied to rates, “cross-

subsidization” calls for profits on shipments of certain commodities

to offset losses incurred in shipments of other commodities.

6

U.S.C. § 10905, a carrier seeking to abandon a line may

be compelled to transfer it to a third party for use as a

rail line upon terms and conditions established by the

Commission. Similarly, 49 U.S.C. § 10906 authorizes the

Commission to bar disposal of lines authorized for aban-

donment for 180 days unless the lines have first been of-

fered on reasonable terms for public acquisition and use.

In both cases, rail preservation is accomplished without

cross-subsidization: under § 10905, the Commission re-

quires payment of the constitutionally minimum level of

compensation. Under § 10906, the Commission leaves

terms of transfer to voluntary agreement.

As a supplement, Congress in early 1983 adopted what

at the time was a non-controversial amendment to the

National Trails System Act. The amendment, now codi-

fied at 16 U.S.C. § 1247(d), is aimed squarely at preserv-

ing lines for future rail use (“railbanking’”). It provides

that the Commission may not authorize abandonment

where a state or local government or qualified private

organization is willing to bear all the costs, management

responsibility and tort liability associated with preserving

a line for future use. As an inducement to state and

local governments and qualified private organizations to

volunteer to shoulder these burdens, the statute permits

the railbanking party to use the corridor in the interim

as a recreational trail. Again, the statute operates with-

out cross-subsidization. In the past, abandonments were

simply denied in order to preserve rail lines for future

use, and carriers incurred substantial continuing costs

as a result. Alternatively, carriers could relieve them-

selves of some costs by obtaining a certificate of discon-

tinuance (but not full abandonment), which would pre-

serve the corridor intact, but not relieve the carrier of

tax and tort liability. In contrast, 16 U.S.C. § 1247(d)

*ICC noted the similarity in application of discontinuance au-

thority and in application of § 1247(d) at 54 Fed. Reg. 8011, 8012-

13 (Feb. 24, 1989).

7

lifted the costs of preserving the lines for future inter-

state commerce completely from the carriers. The interim

trail use serves as a means of financing the preservation.

In contrast to the earlier remedies, it preserves corridors

without any cross-subsidization from the carrier’s other

operations.

D. There Is No Conflict in the Circuits.

Petitioner Glosemeyer is adamantly opposed to preser-

vation of rail corridors for future transportation use

(“railbanking”’) and to public use of the corridors in the

interim as trails. He contends that 16 U.S.C. § 1247(d)

is beyond Congress’s power under the Commerce Clause.

He dismisses its “railbanking” purpose as contrived, and

argues that it is solely for parks and public recreation,

which he views as constitutionally illegitimate. In any

event, petitioner claims that but for 16 U.S.C. § 1247/(d),

he would enjoy exclusive use of the surface of his alleged

parcels in the right-of-way, and that the statute operates

as a “taking” of his “reversionary interests” without just

compensation in violation of the Fifth Amendment. The

District Court rejected these arguments in Glosemeyer v.

Missouri-Kansas-Texas Railroad, 685 F.Supp. 1108 (E.D.

Mo. 1988), and the Eighth Circuit likewise upheld the

statute in Glosemeyer v. Missouri-Kansas-Texas Railroad,

879 F.2d 316 (8th Cir. 1989).

To date, no court has embraced the view that section

8(d) of the Trails Act is somehow unconstitutional. All

courts which have considered the question have agreed

that the statute is within Congress’s power under the

Commerce Clause. Further, all courts which have con-

sidered the question have agreed that even if the statute

might in some instance amount to a taking, Congress has

impliedly agreed to provide just compensation pursuant

to the Tucker Act, 28 U.S.C. § 1491. The United States

has agreed that the Tucker Act is available. Petitioner

Glosemeyer has not devised any new arguments which

8

undermine the validity of what Congress has done. There

is no conflict in the circuits with regard to the result

reached by the Eighth Circuit.

SUMMARY OF ARGUMENT

ICC regulation of rail abandonments necessarily over-

rides results which would otherwise be applicable under

state law. 16 U.S.C. §1247(d) is part of a family of

measures implemented by ICC which aim at preserving

corridors for continued transportation use, now or in the

future, and for other public purposes even where cessa-

tion of rail service is found to be permissible under the

longstanding “public convenience and necessity” balanc-

ing test. 16 U.S.C. §1247(d) is well within Congress’s

power.

16 U.S.C. § 1247(d) serves a legitimate rail regulatory

purpose: fostering preservation of corridors for future

rail use. The interim trail use with which petitioner takes

umbrage is subservient to this purpose. It is there so

the preservation may be accomplished without burdening

the current rail carrier or current shippers. Given the

long-established “public highway” character of railroads,

interim use of a corridor as a trail (a form of public

highway) in service to the rail regulatory goal of cor-

ridor preseravtion is not a taking. In any event, if 16

U.S.C. § 1247(d) in some instance results in a taking, the

Tucker Act provides a “just compensation” remedy, as

found by the Eighth Circuit and the District Court

below.

9

REASONS FOR DENYING THE WRIT

I. 16 U.S.C. § 1247(d) IS WITHIN CONGRESS’S POWER

UNDER THE COMMERCE CLAUSE

Under the Commerce Clause, a statute enacted by Con-

gress must be upheld if it serves legitimate purposes and

specifies means which are “reasonable adapted” to

achievement of those ends. Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 262 (1964); Hodel v.

Virginia Surface Mining & Reclamation Ass’n, 452 U.S.

264, 276 (1981). Under this test, Congress clearly has

the power to regulate interstate railroads for the current

and future public convenience and necessity, and to do

so to the exclusion of contrary state law. See, e.g., Chi-

cago & N.W. Tr. Co. v. Kalo Brick & Tile Co., 450 U.S.

311, 320, 321 (1981). This power includes the authority

to grant or to deny abandonments a state might other-

wise handle much differently, with all the consequences

to interested parties (the railroad, shippers, reversionary

property owners, or the public) and their private agree-

ments which might flow therefrom. See, e.g., New York

v. United States, 257 U.S. 591, 601 (1922); Philadelphia,

B. & W. R.R. Co. v. Schubert, 224 U.S. 603, 614-15

(1912); Lowisville & N.R. Co. v. Mottley, 219 U.S. 467,

481-82 (1911); Addyston Pipe & Steel Co. v. United

States, 175 U.S. 211, 230 (1899); Moeller v. Interstate

Commerce Commission, 201 F. Supp. 583, 589-90 (S.D.

Iowa 1962) (three-judge); North Carolina v. United

States, 210 F. Supp. 675, 679 (M.D. No. Car. 1962)

(three-judge).

Chicago & A. R.R. Co. v. Toledo, P. & W. R.R. Co.,

146 ICC 171 (1928), is illustrative and closely on point.

The Commission in that case required that a certificate

of abandonment be obtained prior to cessation of service

even though such cessation was required under the terms

of a lease. Citing a passage from Louisville & N.R. Co.,

supra, 219 U.S. at 482, the Commission rejected the con-

tention that the parties’ lease was binding for regulatory

10

purposes. The Commission emphasized that if its juris-

diction over abandonments and discontinuances of service

was to be limited or circumscribed by the specific provi-

sions of private contracts, and was to be exercisable only

during the life of those contracts, then the Commission’s

jurisdiction “could be entirely defeated by short-term

contracts made renewable at the option of the parties.’

In short, ICC regulation of abandonments routinely,

necessarily and legitimately impacts, regulates, and over-

rides results which might otherwise obtain under state

law.

16 U.S.C. §1247(d) on its face states that one of its

purposes is to preserve rail corridors for future rail

use. This is unquestionably a legitimate purpose. Reed v.

Meserve, 487 F.2d 646, 649-650 (1st Cir. 1973) (pres-

ervation of rail corridor for future use is legitimate ob-

jective). See also National Wildlife Federation v. ICC,

850 F.2d 694, 705 (D.C.Cir. 1988) (“[n]o one doubts

that Congress has power” to preserve a rail corridor

even if that power is exercised without any rail regula-

tory purpose). The means selected by Congress to accom-

plish this end—inducing state and local agencies to vol-

untarily assume the costs and burdens associated with

preserving the corridor for future rail use in return for

compatible use in the interim—is manifestly rational."

10 A report prepared by two economists for the Iowa legislature

rams this point home:

“The longer the [railroad right-of-way] must be banked be-

fore being redeveloped as a railroad or as some other transport

corridor, the higher will be the costs and the less the likelihood

of the project having a positive net present value. At the same

time, if interim uses can be identified and initiated before this

redevelopment occurs, the project is more likely to have a posi-

tive net present value.”

J. Barnard & D. Beckmann, Feasibility of Land Banking Railroad

Right-of-Way (Legis. Env. Adv. Group, University of Iowa, Jan.

1981), at p. 41. 16 U.S.C. § 1247(d), by linking railbanking with

compatible interim use, increases the likelihood that railbanking

11

Further, by removing the burden of preserving the cor-

ridor in the interim from carriers and shippers, the stat-

ute is artfully consistent with fostering current as well

as future interstate commerce. Under the well-estab-

lished analysis of Congressional Commerce Clause power,

the statute is clearly within Congress’s power.

Petitioner Glosemeyer argues that the rail regulatory

justifications for 16 U.S.C. § 1247(d) are “valid ration-

alizations” (Cert. Pet. at 21) and “a transparent at-

tempt to alchemize private property into public hiking and

biking trails... .” Cert. Pet. at 24. Petitioner’s ex-

cited rhetoric and pejorative characterizations are a rel-

atively blatant effort to encourage this Court to substi-

tute the judgment of petitioner for that of Congress with

respect to national railroad and transportation policies.

Congress declared its railbanking purpose in the stat-

ute. The second sentence of 16. U.S.C. § 1247(d) states:

“Consistent with the purposes of [the Railroad Re-

vitalization and Regulatory Reform Act of 1976],

and in furtherance of the national policy to preserve

established railroad rights-of-way for future reacti-

vation of rail service, to protect rail transportation

corridors, and to encourage energy efficient trans-

portation use, in the case of interim use of any es-

projects will have a positive net present value and thus will be

undertaken. The district court below recognized that 16 U.S.C.

§ 1247(d) emanates from longstanding congressional concern over

rail abandonments and their impact on the interstate rail network.

Glosemeyer v. M-K-T, 685 F. Supp. 1108, 1115 (E.D. Mo. 1988),

citing 90 Stat. 144, 145. Reports indicated that abandonments were

running at 3000 miles per year, and were likely to continue at that

level or to increase. Id. citing U.S. DOT, Availability and Use of

Abandoned Railroad Rights-of-Way (1977). A major problem in

preserving lines through railbanking was, however, financing the

management of the corridor without burdening the rail industry

which was suffering from low returns and systern bankruptcies.

685 F. Supp. at 1115 n.6.

12

tablished railroad rights-of-way pursuant to dona-

tion, transfer, lease, sale or otherwise in a manner

consistent with this chapter, if such interim use is

subject to restoration of 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.”

This declaration of railroad regulatory purposes is en-

titled to deference rather than second-guessing. United

States v. O’Brien, 391 U.S. 367, 383 (1968) ; Pacific Gas

& Electric Co. v. State Energy Resources Conservation

and Development Commission, 461 U.S. 190, 216 (1983).

Petitioner cites nothing to suggest that Congress acted

illegitimately in declaring its purpose. Instead, peti-

tioner Glosemeyer spins a tale of woe from various ICC

statements or actions taken out of context. These upon

analysis prove nothing against the statute, and it is the

statute which is at issue here.

Petitioner Glosemeyer cites an ICC statement which

notes that Congesss was concerned to prevent reversions

of rights-of-way while not in current rail service, and

implies that ICC acknowledges that this is for recrea-

tional and amusement purposes rather than for railbank-

ing. Cert. Pet. at 22. Respectfully, preserving corridors

against reversion is what railbanking and the statute are

all about. ICC has repeatedly said that the purpose of

regulating reversion is to keep the corridor intact for rail

purposes. In its decision authorizing cessation of service

and application of § 1247(d) below, ICC said: “Congress

intended to preempt state property law that would other-

wise authorize a reversion of the right-of-way upon dis-

continuance of service and thereby preserve transporta-

tion corridors for future reactivation of rail service.”

Decision in AB-102 (Sub-no. 13, served March 16, 1987,

at p. 7 (emphasis added). It is only coincidental that

trail interests are also served.

13

Petitioner Glosemeyer complains that before ICC ap-

plies 16 U.S.C. § 1247(d), it makes a finding that “the

right-of-way is not necessary ‘. . . for present or future

public convenience and necessity.’ ” Cert. Pet. at 22 (em-

shasis in original). Petitioner opines that this finding

demonstrates that corridor preservation under 16 U.S.C.

§ 1247(d) is not related to a rail purpose.'! But peti-

tioner is wrong. ICC’s finding goes not to the propriety

or desirability of railbanking the right-of-way for fu-

ture use, but instead goes to the propriety of burdening

the rail carrier with those costs. More specifically, under

49 U.S.C. § 10903, ICC necessarily makes a finding, re-

quired for all discontinuances of service or abandon-

ments, that cessation of rail service is permissible under

“the present or future public convenience and necessity”

standard. This standard is the very traditional balanc-

ing test weighing the cost to the carrier and interstate

commerce of providing current service against the loss

to local shippers. See Colorado ». United States, 271 U.S.

153 (1926).'* It has nothing whatsoever to do with the

11 Petitioner’s complaint relates to ICC’s construction of 16

U.S.C. § 1247(d) in unison with 49 U.S.C. § 10903, and not with

16 U.S.C. § 1247(d). If there is an inconsistency in ICC’s finding

and application of § 1247(d), the remedy lies in a change in ICC's

finding, not in declaring § 1247(d) somehow unconstitutional.

12 This Court articulated the test in Colorado as follows:

“The sole test prescribed is that abandonment be consistent

with the public necessity and convenience. ... The benefit to

one of abandonment must be weighed against the inconvenience

and loss to which the other will be subjected. Conversely, the

benefits to particular communities and commerce of continued

operation must be weighed against the burden thereby imposed

upon other commerce. ... Whatever the precise nature of

these conflicting needs, the determination is made upon a

balancing of the respective interests—the effort being to decide

what fairness to all concerned demands. In that balancing, the

fact of demonstrated prejudice to interstate commerce and the

absence of earnings adequate to afford reasonable compensation

are, of course, relevant and may often be controlling. But the

14

question whether it would nonetheless be desirable to

retain the right-of-way over which the service is pro-

vided for possible future use if the retention can be done

at no cost to the carrier or shippers. As the First cir-

cuit indicated in Reed v. Meserve, supra, 487 F.2d at

649-50 (decided long before the advent of various rail

corridor preservation measures), there is nothing incon-

sistent between permitting a carrier to abandon service

but nonetheless taking steps to retain a right-of-way for

future transporation use through some interim modality.

Petitioner’s gambit is a failure for another reason:

basic misquotation. What ICC said below was that

“The present and future public convenience and

necessity permit (a) discontinuance of service over;

or (b) abandonment of the described line of rail-

road, subject to the employee protective conditions

in Oregon Short Line R. Co.—Abandonment—Goshen,

360 I.C.C. 91 (1979), and subject to the directives

for implementing interim trail use/rail banking set

forth in the orders below.” *

In other words, ICC’s finding as to public convenience

and necessity in this case was expressly subject to a con-

dition which aimed at preserving the corridor for future

transportation use without burdening the carrier and

current interstate commerce. This is not a renunciation

of the corridor as unworthy of railbanking (i.e, future

public rail use) as petitioner Glosemeyer is evidently at-

tempting to suggest.

Finally, petitioner Glosemeyer objects that the ‘“na-

tional interstate commerce” policy was left to voluntary

agreements by the ICC. Petitioner appears to argue that

Act does not make issuance of the certificate dependent upon

a specific finding to that effect.”

271 U.S. at 168-69.

13 Decision and Certificate in AB-102 (Sub-no. 13), served April

27, 1987 (emphasis added) (Appendix A).

15

such a policy is too fraught with uncertainty, too “left

to the whim of trail operators and railroads” (Cert. Pet.

at 24), to be meaningful except for recreation. Again,

petitioner is way wide of the mark. ICC cannot force a

state or local government, or a third party, to step for-

ward to assume the costs of preserving a corridor for

future use. Obviousiy, the state or local agency or pri-

vate group must volunteer. Moreover, preservation is

potentially expensive, and volunteers would be discour-

aged if the agency did not permit them to abandon the

railbank if the costs became prohibitive. The voluntary

aspects of ICC’s construction of the statute of which peti-

tioner Glosemeyer complains thus help it to work as Con-

gress intended; these aspects do not hinder it or somehow

traduce the rail purposes with which it is associated. As

to ICC’s construction of the statute to require the car-

rier’s voluntary consent, the agency’s whole thrust since

the mid-1970’s has been in the direction of deregulation

and voluntarism. Further, this construction does permit

each carrier agreeable to railbanking to structure ar-

rangements least burdensome to its operations and thus

directly serves interstate commerce purposes.

In any event, this does not mean, as petitioner sug-

gests, that the railbanking policy is so porous—so weak

in preservational power—as to be meaningless. Clearly

at least some corridors will be preserved for future use

which would otherwise be lost. A case in point is the

Katy mainline in Missouri—a corridor of potentially

enormous future significance. Presumably the reason

the petitioner is in this Court is that he feels that stat-

ute is a significant factor in preserving a major corridor.

Petitioner Glosemeyer’s parting shot is that the statute

is “not justifiable as rail regulation under the Commerce

Clause” and is purely recreational in nature. Cert. Pet.

at 24. Petitioner is just wrong. The railbanking pur-

pose is paramount. The interim trail use is subject to it,

and finances it. The corridor remains under ICC authority

16

for railbanking purposes. That authority is expressly

stated in the “certificate of interim trail use” issued with

respect to the Katy trail below."

The point can be approached from another angle. As

recreational legislation, the statute is subject to downsides

more substantial than the purported defects which peti-

tioner coins to undermine it as a rail regulatory measure.

In particular, interim trail users are reluctant to invest

money in railbanked rights-of-way because they in fact

may be restored at some point, perhaps only a few years

hence,” for rail purposes, and arrangements to work out

this concern must be carefully negotiated with rail car-

riers. But in any event, even if the statute were solely

or even predominantly recreational, it is not beyond Con-

gress’s power under the Commerce Clause. See National

Wildlife Federation v. ICC, supra.

Petitioner Glosemeyer also belittles railbanking as ap-

plied to the Katy mainline. He claims that it has “no

potential” for reactivation because of its “inferiority” as

compared to a parallei Missouri Pacific line on the other

side of the Missouri River. Cert. Pet. at 24 n.15. Union

Electric Company, a major public utility, opposed aban-

donment of the Katy mainline on the ground that it alone

adequately served Union Electric’s Callaway nuclear gen-

erating facility, that loss of the corridor would hamper

transport of heavy transformers to the facility and the

construction of a possible additional electrical generating

14 The Certificate expressly states that “[i]nterim trail use/rail

banking is subject to the future restoration of rail service.” Cer-

tificate in AB-102 (Sub-no. 13), served April 27, 1987. See Ap

pendix A.

15 According to the Washington Post, the Montgomery County

(Maryland) Council in the past month has already undertaken to

restore rail service in a corridor preserved through interim trail

use by means of an ICC order under section 8(d) of the Trails Act,

16 U.S.C. §1247(d), issued approximately two years ago. See

Wash. Post, Nov. 29, 1989, Al, p. 1, col. 4.

17

facility at the site. Preservation of the Katy mainline

through interim trail use and railbanking is the least

burdensome means available to preserve the corridor to

meet Union Electric’s possible future railroad needs.”

Further, several parties have indicated interest in re-

activating portions of the line.” The line was profitable

in 1984, 1985, and in the “base year” calculated for pur-

poses of the application to cease service.’ Petitioners’

pronunciamentos concerning the inapposite nature of rail-

banking are exercises in fictionalization.

The whole debate on whether the statute is or is not

rail regulatory, or sufficiently rail regulatory, goes not

so much to Congress’s power as to whether the statute is

“reasonable regulation” or a “taking’”—the Fifth Amend-

ment issue. That issue is treated below.

Il. 16 U.S.C. §1247(d) IS NOT A TAKING WITHOUT

JUST COMPENSATION

A. 16 U.S.C. § 1247(d) Is Reasonable Regulation

Reasonable regulation is not a taking. United States v.

Locke, 471 U.S. 84, 104 (1985); Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 16 (1976); Village of Euclid v.

16 See Missouri-Kansas-Teras Railroad Company—Abandonment

—in St. Charles, et al., Counties, Missouri, 1CC dkt. AB-102 (Sub-

no. 13), served March 16, 1987, at p. 4.

17 ICC indicated that it was unwilling simply to deny abandon-

ment to retain the corridor on a stand-by basis for Union Electric

in light of the utility’s “uncertain” needs and the economic burden

of refusing to permit cessation of service on the railroad. /d. at 5.

18 See, e.g., id. at 7-8.

19 Missouri-Kansas-Tezas Railroad Company—Abandonment—in

St. Charles, et al., Counties, Missouri, 1CC Dkt. AB-102 (Sub-no.

13), served March 16, 1987, at p. 2 ($3,480,195 in profit on

$10,572,105 revenue in 1984; $6,052,860 profit on $12,519,485 reve-

nue in 1985; and $5,342,205 profit on $11,770,975 revenue for base

year). Two of the five Commissioners voted against cessation of

service. /d.

18

Ambler Realty, 272 U.S. 365 (1926). Petitioner Glose-

meyer basically argues that 16 U.S.C. §1247(d) goes

beyond the “reasonable” because its rail regulatory pur-

pose is a sham and the statute is just a recreational trail

“scheme.” As demonstrated in the preceding section, peti-

tioner is in error. The statute has a clear and paramount

railbanking purpose. The interim trai] use is subordinate

to that purpose. In particular, the interim trail use fi-

nances the railbanking (rather than vice versa), and any

trail is displaced upon orders of the ICC restoring active

rail service.”

We do not understand petitioner Glosemeyer to contend

that preserving a corridor for future use is unreasonable

regulation and a taking. Missouri law, like the law of

other states which we have examined, recognizes the

legitimacy of preserving a rail corridor for future use.”

The whole thrust of ICC control over abandonments is to

postpone abandonment and to preserve a corridor for con-

tinued or future use. To claim that such action is a tak-

ing is to claim that ICC has been taking reversionary in-

terests in violation of the Fifth Amendment since World

War I; it is to claim that the basic legal test for abandon-

ment—which permits ICC to refuse to permit abandon-

ment—is unconstitutional. Petitioner would presumably

be satisfied if ICC simply refused to permit an abandon-

ment and consigned the line to become wildlife habitat

for an indefinite period. Petitioner’s real displeasure

with 16 U.S.C. § 1247(d) is that it fosters a use of the

2° Under the law of at least some states, railroads are permitted

to lease portions of railroad right-of-way easements for non-rail

purposes in order to defray costs. See Martens v. B&O Railroad

Co., 289 S.E.2d 706, 711-12 (W.Va. 1982).

21 £.9., St. Louis-San Francisco Ry Co. v. Dillard, 43 S.W.2d

1034, 1037 (Mo. 1931) (preserving a right-of-way for future use

or growth is a railroad purpose and right-of-way need not be

occupied by the railroad until necessary or desirable to do so).

Accord, Hennick v. Kansas City Southern Ry Co., 239 S.W.2d 653

(1965).

19

corridor during the railbank period other than as strictly

wildlife habitat.

But this “change”—which is subordinate to restoration

for current rail purposes at any time—is not of sufficient

significance to render the operation of the statute some-

thing other than “reasonable regulation.” First, the use

in question—trail use—is perfectly consistent with the

longstanding status of railroad rights-of-way. Under fed-

eral as well as state law, railroad rights-of-way are “pub-

lic highways.” ** A “trail” is the epitome of a “public

highway.” Indeed, until the mid-nineteenth century and

except for rivers, virtually all “public highways” were

once trails. Further, there is no claim that a “trail’’ is

more burdensome than a railroad upon abutting proper-

ties. To the contrary, ICC has recently found that there

is no evidence of any significant burdens arising from

interim trail use of railroad rights-of-way.** Further, it

is hornbook law that railroads are the most burdensome

variety of public highway, cutting off abutter rights of

access ** and commanding exclusive use of the surface

estate.” If a government requirement of continued rail

22 E.g., Missouri Constitution, Art. XII, §13 (1945) (railroads

are public highways) ; Southern Railway v. United States, 222 U.S.

20, 25 (1911) (railroad is a “highway of interstate commerce’’) ;

Schechter Poultry Corp. v. United States, 295 U.S. 495, 546 (1925)

(railroads are “highways of both interstate and intrastate com-

merce”); Cherokee Nation v. Southern Kansas Railway, 125 U.S.

641, 657 (1890) (“{A) railroad is a public highway, established

primarily for the convenience of the people, and to subserve public

ends and therefore, subject to governmental control and regula-

tion”).

23 Rail Abandonments—Use of Rights-of-Way as Trails—Supple-

mental Trails Act Procedures, Ex parte 274 (Sub-no. 13), served

May 26, 1989, at p. 3 n.4, p. 6, p. 6n.9.

% See 3 Nichols on Eminent Domain § 10.221 (J. Sackman 3d ed.

1985).

26 For example, under Missouri law, a railroad’s right of posses-

sion is “exclusive ..., and it is only by consent of the company

20

operation is not an “invasion” of the expectations of the

reversionary interest holder, it is hard to see how the

lesser “imposition” of preservation for future rail opera-

tion is one. See Nollan v. California Coastal Commission,

108 S.Ct. 3141, 3147-48 (1987).

Second, federal law as well as the law of many states

recognizes an interchangeability of highway uses for

various kinds of public highway rights-of-way. For ex-

ample, federal law expressly permits other kids uf pub-

lic highways to occupy federally-granted railroad rights-

of-way, both before and after cessation of rail use.” In-

terchangeability is also recognized at state law.” The

basic principle was aptly stated both this decade, and al-

most 100 years ago, by the Minnesota Supreme Court:

“The question, then, is what is the nature and ex-

tent of the public easement in a highway? If there

is any one fact established in the history of society

and of the law itself, it is that the mode of exercis-

ing this easement is expansive, developing and grow-

ing as civilization advances. ... [I]t has become

settled law that the easement is not limited to the

particular methods of use in vogue when the ease-

ment was acquired. ... Another proposition .. . is

that the owner of the fee in the land can use the surface for any

purpose.” Chicago, R.l. & P. Ry Co. v. George, 145 Mo. 38, 47 S.W.

11, 14 (1898).

26 43 U.S.C. §§ 912 & 913.

27 £.g., Hatch v. Cincinnati & L.R. Co., 18 Ohio St. 92 (1864)

(canal to railroad); Faus v. City of Los Angeles, 67 Cal.2d 350, 62

Cal. Rptr. 193, 431 P.2d 849 (1967) (railroad to road); Brainard

v. Mississquoi R.R., 48 Vt. 107 (1874) (trail to railroad); Kansas

Electric Power Co. v. Walker, 51 P.2d 1002 (Kan. 1935) (railroad

to road: “change in method of transportation and motive power”

is not an abandonment); Anderson v. Knoxville Power & Light Co.,

16 Tenn. App. 259, 64 S.W. 2d 204, 205 (1933) (track to trackless

trolleys); State ez rel. Washington Wildlife Preservation, Inc. v.

State, 329 N.W.2d 543, 545, 547 (Minn. 1983), cert. denied, 463

U.S. 1209 (1983) (railroad to trail).

21

that the public easement in a highway is not limited

to travel or transportation of persons or property in

movable vehicles.”

Haeussler v. Braun, 314 N.W. 2d 4 (Minn. 1981), quot-

ing Cater v. Northwestern Telephone Exchange Co., 60

Minn. 543, 63 N.W. 111, 112 (1885). The case would be

different if 16 U.S.C. § 1247(d) provided that railroad

rights-of-way could be used in a fashion incompatible not

only with railbanking but also with the basic “public

highway” nature of the corridor in question. But Con-

gress has not authorized use of the corridors as prisons,

or gasoline stations, or video stores. Congress, in a fash-

ion consistent not only with railbanking but also with

the public highway character of the corridor, has fostered

preservation through a highly compatible and inexpensive

interim use. This is not a case of saying “if my aunt

were a man, he would be my uncle.” It is a case of

saying “my aunt is my aunt, whether she is wearing a

dress, a skirt, or a pair of blue jeans,” or, perhaps more

appropriately, “my aunt is my aunt, whether she is driv-

ing a car or walking.”

Third, the scope of reasonable federal regulation tends

to be at its broadest when exercised over railroads and

their rights-of-way.” Focusing on the rights-of-way them-

selves, this flows from the fact that those rights-of-way

are a unique conglomeration of interests, subject not only

to regulation as public highways, but also to federal com-

mon carrier regulation under the Commerce Clause. The

scope of this regulation extends not only to carrier opera-

tions, but to the underlying property and interests therein.

Matter of Boston & Maine Corp., 596 F.2d 2, 5-6 (1st

Cir. 1979). Private parties granting interests in parcels

28 See Transcript of oral argument in Preseault v. ICC, U.S. Sup.

Ct. No. 88-1076, argued Nov. 1, 1989, at p. 27.

2° £.9g., Southern Railway v. United States, 222 U.S. 20 (1911);

Houston, E. & W. T. Ry Co. v. United States, 234 US. 242 (1914)

(broad construction of congressional power as applied to railroads).

to a railroad for a corridor, even if they purport to re-

strict their grants to time-limited leases or very narrow

easements, implicitly make those grants subject to federal

regulation and ICC jurisdiction. Chicago & Alton R.R.

Co. v. Toledo, P. & W. R.R. Co., supra. As a result, it is

well-established that state property law simply does not

apply to parcels in the corridor until ICC jurisdiction is

ended. E.g., Mobile & Gulf R. Co. v. Crocker, 455 So. 2d

829, 832 (Ala. 1984); Trustees of the Diocese of Vermont

v. State, 145 Vt. 510, 496 A.2d 151, 154 (1985).

That certainly is the case in Missouri. In Kansas City

Area Transportation v. Ashley, 555 S.W. 2d 9 (Mo.

1977), cert. denied, 434 U.S. 1066 (1978), the Missouri

Supreme Court rejected efforts by a public agency to ac-

quire, under state law, any portion of an unused rail line

still regulated by ICC. The Missouri Supreme Court said

that “legal abandonment of [a] line of track or discon-

tinuance of service can only be accomplished by the ICC.”

The court went on to explain that

“ICC is required to consider a number of factors in

arriving at a decision regarding abandonment and

is afforded the alternative of allowing another to

provide rail service over the line of track ... or

allow the disposition of the properties for other pub-

lic purposes, including mass transportation [citing

49 U.S.C. sec. 1(a) (10), the predecessor of 49 U.S.C.

§ 10906).”

555 S.W. 2d at 11. ICC jurisdiction—for railroad

purposes—has not ended in rights-of-way covered by 16

U.S.C. § 1247(d).

B. In Any Event, A Just Compensation Remedy Is

Available

The Court of Appeals below of course did not reach the

issue of whether 16 U.S.C. § 1247(d) could ever be a

taking, finding instead that just compensation was avail-

able. It is again hornbook law that “takings” are not

23

barred by the U.S. Constitution; the Constitution only

proscribes takings without just compensation. That com-

pensation can be paid after the fact as well as before.

Ruckelshaus v. Monsanto Corp., 467 U.S. 986, 1016

(1984).

The United States has implicitly promised to pay any

required amounts in the event of a “taking” through suits

in Claims Court under the Tucker Act, 28 U.S.C. § 1491.

The only requirement is that the “taking” be authorized.

In the event there is a “taking” of a reversionary inter-

est under 16 U.S.C. § 1247(d), there is no question but

that it is authorized. Congress has clearly provided in

the second sentence of 16 U.S.C. § 1247(d) that interim

trail use and railbanking shall not be considered an

abandonment for purposes of any state or local law. The

legislative history expressly states that this was intended

to regulate state law reversionary interests.*” ICC’s con-

struction of the statute is in accord.” Petitioner through-

out his Petition for Certiorari emphasizes that this was

precisely Congress’s intent. In short, all agree that 16

U.S.C. § 1247(d) is being applied to reversionary inter-

ests by ICC in accordance with Congress’s intent. If this

application results in a taking, it is clearly authorized.

It is noteworthy that Regional Rail Reorganization Act

Cases, 419 U.S. 102 (1974), another railroad case, is the

leading decision on this point. In this decision, parties

* H.R. Rep. No. 28, 98th Cong., Ist Sess. 1, reprinted in 1982

U.S. Code Cong. & Admin. News 119.

%1“As we noted in Rail Abandonments—Use of Rights-of-Way

as Trails, ——- ICC2d ——, slip op. at 9, served May 6, 1986,...,

Congress intended to preempt state property law that would other-

wise authorize a reversion of the right-of-way upon discontinuance

of service and thereby preserve transportation corridors for future

reactivation of rail service. Allowing reversion of the right-of-way

would subvert Congressional purpose in enacting the Trails Act.”

Missouri-Kansas-Tezas RR—Abandonment—St. Charles, et al.

Counties, AB-102 (Sub-no. 13), served March 16, 1987, at p. 7.

24

with interests in the Penn Central Transportation Com-

pany brought suits contesting the constitutionality of the

Regional Rail Reorganization (3-R) Act, 45 U.S.C. § 701,

claiming that the statute violated the Fifth Amendment

by taking property without just compensation. This

Court reiterated the “general rule” that “if there is a

taking . . . of property for which there must be compen-

sation under the Fifth Amendment, the [Federal] Gov-

ernment has impliedly promised to pay that compensation

and has afforded a remedy for its recovery by a suit in

the Court of Claims.” 419 U.S. at 126-27. This posi-

tion has been subsequently reiterated many times by this

Court. Ruckelshaus v. Monsanto, supra; Duke Power Co.

v. Carolina Environmental Study Group, Inc., 438 U.S.

59, 94 n.89 (1978); United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 127-29 (1985).

Petitioner Glosemeyer argues, however, that Congress

has withdrawn the Tucker Act remedy. Petitioner has a

heavy burden. Repeals of statutes are disfavored, and

this Court has repeatedly indicated that a claimed repeal

of the Tucker Act remedy must be express and clear.

E.g., Ruckelshaus v. Monsanto, supra, 467 U.S. at 1017;

Regional Rail Reorganization Act Cases, supra, 419 U.S.

at 126.

Petitioner’s sole argument on the repeal point (see

Cert. Pet. at 16) is that Congress impliedly withdrew

the Tucker remedy via § 101 of Public Law 98-11, re-

produced in the notes following 16 U.S.C.A. § 1249. Sec-

tion 101 states that “authority to enter into contracts

and to make payments ... under [the National Trails

System] Act shall be effective only to such extent or in

such amounts as are provided in advance in appropria-

32 This Court rejected arguments that the Tucker Act is inade-

quate because Congress may not appropriate the money involved;

because the remedy is delayed; and because valuation of railroad

property may be complex. 419 U.S. at 148 n.35.

—_ | a ee ee nai |

25

tion Acts.” First, this language on its face has no bear-

ing on ICC’s administration of 16 U.S.C. § 1247(d).

ICC does not enter into contracts or make payments

under the National Trails System Act. Its proceedings

and activities take place under the Revised Interstate

Commerce Act. The language is directed not at regula-

tory actions, but principally at land acquisitions for the

various “national trails” specified in 16 U.S.C. § 1244

by the Secretaries of Interior and Agriculture. Second,

to the extent § 101 nevertheless calls for an appropria-

tion in advance, such an appropriation is specifically pro-

vided in advance through 31 U.S.C. § 1304, which refer-

ences, among other things, 28 U.S.C. § 2517, which in

turn covers 28 U.S.C. § 1491. Section 101 is quite liter-

ally satisfied by the Tucker Act remedy.

Section 101 simply reiterates the constitutional require-

ment that no money be expended in the absence of an

appropriation. U.S. Const. Art. I, § 9, cl. 7. To construe

this requirement as somehow withdrawing the Tucker

Act remedy is to say, in a reversal of the entire Regional

Rail Reorganization Act line of cases, that the Tucker

Act is not available unless expressly provided for. It

would call into constitutional question a host of regula-

tory statutes.

In the Regional Reorganization Act Cases and in Duke

Power Co. v. Carolina Environmental Study Group, Inc.,

supra, this Court was faced with two statutes (the 3-R

Act and the Price Anderson Act*) which set very ex-

press limits on the amount of money which could be paid

from the Treasury. In each case, this Court held that

sums exceeding these amounts would nevertheless be avail-

able under the Tucker Act to remedy any constitutional

deficiencies resulting from regulatory actions under the

statutes. There is far less “evidence” for a withdrawal

of the Tucker Act with respect to actions of the ICC un-

83 42 U.S.C. § 2210.

26

der 16 U.S.C. § 1247(d) than there was for such with-

drawal under the 3-R Act or Price-Anderson.

Although the United States has consistently taken the

position that the Tucker Act is available to remedy any

“takings” resulting from application of 16 U.S.C.

§ 1247(d), no claim has yet been filed by anyone seeking

such compensation. The reason is apparent from the his-

tory of this case. It was filed not to obtain compensation,

but to block preservation of the corridor for the future.”

While this case was pending below, petitioner and his

allies rejected a totally voluntary offer by the Governor

of Missouri to cooperate in state legislation to purchase

trail easements from them. Petitioner’s arguments con-

cerning the unavailability of compensation are contrived

and tendered simply to derail the legitimate congressional

objective of maintaining rail corridors intact for future

use.

34 The St. Louis Post-Dispatch states that Gary Heldt, one of the

Glosemeyer petitione:s, indicates that “money is beside the point.”

The newspaper states that he said, after the Preseault oral argu-

ment, that “{c]ompensation is not the issue,” and that the “land-

owners” simply want the property. St. Louis Post-Dispatch, Nov.

2, 1989, p. 12A.

CONCLUSION

There is no conflict in the circuits with respect to the

issues decided by the United States Court of Appeals in

its result below. The petition for certiorari shouid be

denied.

HENRY MENGHINI *

EVANS & DIXON

314 North Broadway

St. Louis, Missouri 63102

(314) 621-7755

Attorneys for Respondent

Missouri-Kansas-T exas

Railroad Co.

CHARLES H. MONTANGE *

1400 - 16th St., N.W., #301

Washington, D.C. 20036

(202) 797-5427

Attorney for Respondents

Conservation Federation of

Missouri, et al.

Respectfully submitted,

EDWARD DOWNEY

ROBERT LINDHOLM *

Office of the Attorney General

of the State of Missouri

P.O. Box 899

Jefferson City, Missouri 65102

Attorneys for Respondents

Department of Natural

Resources, et al.

* Counsel of Record

December 1989

APPENDIX

a a

la

APPENDIX

INTERSTATE COMMERCE COMMISSION

DECISION AND CERTIFICATE OF INTERIM TRAIL

USE OR ABANDONMENT

Docket No. AB-102 (Sub-No. 13)

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY—ABANDON-

MENT IN ST. CHARLES, WARREN, MONTGOMERY, CAL-

LAWAY, BOONE, HOWARD, COOPER AND PETTIS COUN-

Ties, MO

Decided: Apri] 22, 1987

I have considered the record in this proceeding, includ-

ing the administratively final decision served and pub-

lished March 16, 1987, in which applicant was authorized

to (a) discontinue service over; or (b! abandon its

199.92-mile line of railroad between milepost 26.92; near

Machens and milepost 226.84 near Sedalia, MO. That

decision provided that any- person, including a gvovern-

ment entity, could offer financial assistance to the carrier

under 49 C.F.R. 1152.27(¢) and 49 U.S.C. 10905 within

10 days of publication of the Commission's finding in the

Federal Register.

In addition, the decision found interim trail use ‘rail

banking under 49 C.F.R. 1152.29 feasible, and applicant

has notified the Commission that it is willing to 1 egotiate

an interim trail use agreement.

2a

The time for filing offers of financial assistance has

expired without a bona fide offer. In absence of an offer

and in view of applicant’s willingness to negotiate an in-

terim trail use agreement, an appropriate decision and

certificate must be entered.

It is certified: The present and future public conveni-

ence and necessity permit (a) discontinuance of service

over; or (b) abandonment of the described line of rail-

road, subject to the employee protective conditions in

Oregon Short Line R. Co.—Abandonment—Goshen, 360

L.C.C. 91 (1979), and subject to the directives for imple-

menting interim trail use/rail banking set forth in the

orders below.

It is ordered:

1. Subject to any conditions set forth above, the rail-

road may discontinue service, cancel tariffs for this line

on not less than 10 days’ notice to the Commission, and

salvage track and material consistent with interim trail

use/rail banking after the effective date of this certi-

ficate. Tariff cancellations must refer to this decision and

certificate by date and docket number.

2. In an interim trail use/rail banking agreement is

reached, it must require the trail user to assume, for the

term of the agreement, full responsibility for manage-

ment of, any legal liability arising out of the transfer

or use of (unless the user is immune from liability, in

which case it need only indemnify the railroad against

any potential liability), and the payment of any and all

taxes that may be levied or assessed against the right-of-

way.

3. Interim trail use/rail banking is subject to the fu-

ture restoration of rail service.

4. If the user intends to terminate trail use, it must

send the Commission a copy of this certificate and request

that it be vacated on a specified date.

3a

5. If an agreement for interim trail use/rail banking

is reached by the 180th day after service of this cer-

tificate, interim trail use may be implemented. If no

agreement is reached by the 180th day, applicant may

fully abandon the line.

6. The decision and certificate will be effective 30 days

from the date of service.

By the Commission, Jane F. Mackall, Director, Office

of Proceedings.

NORETA R. MCGEE

Secretary

[SEAL]

Served April 27, 1989.