Ladd v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

JACK LADD, JOBETH LADD, JOHN LADD, MARIE
LADD,
GAIL A. LANHAM, JAMES A. LINDSEY, MICHAEL
A. LINDSEY,
WILLIAM LINDSEY, CHARLIE MILLER, PAULINE
MILLER,
AND RAYMOND MILLER,
Plaintiffs-Appellants,

v.
UNITED STATES,
Defendant-Appellee.
__________________________

2010-5010
__________________________

Appeal from the United States Court of Federal
Claims in case No. 07-CV-271, Senior Judge Robert H.
Hodges, Jr.
_________________________

Decided: December 14, 2010
_________________________

MARK F. (THOR) HEARNE, II, Arent Fox LLP, of Clay-
ton, Missouri agued for plaintiffs-appellants. With him
on the brief were LINDSAY S.C. BRINTON and MEGHAN S.
LARGENT.
LADD v. US 2

JAMES D. GETTE, Attorney, Environment and Natural
Resources Division, United States Department of Justice,
of Washington, DC, for defendant-appellee. With him on
the brief was IGNACIA S. MORENO, Assistant Attorney
General.

GREG REILLY, Morrison & Foerster LLP, of San Diego,
California, for amicus curiae. With him on the brief was
SARAH SIMMONS, of Chiyoda-ku, Tokyo Japan. Of counsel
was ANDREA C. FERSTER, Rails-To-Trails Conservancy, of
Washington, DC.
__________________________

Before RADER, Chief Judge, LINN and MOORE, Circuit
Judges.
MOORE, Circuit Judge.

The appellants appeal an order of the Court of Fed-
eral Claims granting summary judgment that no com-
pensable taking occurred when the Department of
Transportation’s Surface Transportation Board (STB)
issued a Notice of Interim Trail Use or Abandonment
concerning an easement over the appellants’ land. Be-
cause the court’s order conflicts with Caldwell v. United
States, 391 F.3d 1226 (Fed. Cir. 2005) and Barclay v.
United States, 443 F.3d 1368 (Fed. Cir. 2006), we reverse.

BACKGROUND

The appellants own land in Cochise County, Arizona
near the United States-Mexico border. In 1903, the El
Paso & Southwestern Railroad Company (El Paso) ac-
quired the right to use a 100-feet wide, 76.2-mile long
strip of land to build and operate a railroad, pursuant to
the General Railroad Right-of-Way Act of 1875, 43 U.S.C.
3 LADD v. US

§§ 934-39 (1875 Act), and various private conveyances.
According to the appellants, they retained fee simple
estates in the portions of their land underlying the rail-
way.

In 2003, the San Pedro Railroad Operating Company,
LLC (San Pedro) acquired the El Paso’s rights to the
railway. At that time, the railway served one principal
shipper, the Chemical Lime Company. San Pedro in-
tended to restore a connection with the Mexico rail service
at Naco, Arizona, but the plan never materialized. Thus,
in 2005, San Pedro initiated proceedings to abandon all
76.2 miles of the railway by filing a petition with the STB
under 49 U.S.C. § 10502 seeking exemption from the
requirements of 49 U.S.C. § 10903. As explained by the
STB, when such a “petition becomes effective, the railroad
will be able to salvage track, ties, and other railroad
appurtenances and dispose of the right-of-way.” STB
Docket No. AB-1081X, D.I. 35-9, 1 (Nov. 9, 2005). Over
an objection from the Chemical Lime Company, the STB
granted San Pedro’s petition and instructed San Pedro to
file a notice of consummation to signify that it had exer-
cised its authority to fully abandon its railway line. Id. at
7; see also 49 C.F.R. § 1152.29(e)(2).

The Trust for Public Land (Trust), a charity support-
ing the conversion of abandoned rail lines to public rec-
reational trails, asked the STB to issue a Notice of
Interim Trail Use or Abandonment (NITU) pursuant to
§ 8(d) of the National Trails System Act Amendments of
1983 (Trails Act). See 16 U.S.C. § 1247(d). San Pedro
indicated its willingness to enter into trail use negotia-
tions with the Trust, and on July 25, 2006, the STB
issued a NITU, suspending abandonment proceedings and
authorizing a 180-day period for San Pedro and the Trust
to negotiate a trail use agreement. STB Docket No. AB-
LADD v. US 4

1081X, D.I. 35-10, 2 (Jul. 25, 2006). The Trust requested
a 30-day extension of the negotiating period of the NITU
for a portion of the railway line, specifically, a segment
running from Highway 92 to Curtiss Flats (the Northern
Stretch). Thus for this segment, the negotiating period
lasted 210 days. The STB indicated that San Pedro’s
abandonment exemption would become effective subject
to the NITU (and other standard conditions, not relevant
here). The STB further stated that if no trail use agree-
ment was reached, San Pedro could fully abandon its
railway line. Id. at 3. Shortly after the STB issued the
NITU, San Pedro removed its rails and ties from the land.

The Trust and San Pedro did not reach a trail use
agreement. On January 29, 2007, San Pedro filed a notice
of consummation informing the STB that it had aban-
doned the portion of the railway line east of Naco, Arizona
(the Southern Stretch). See 49 C.F.R. § 1152.29(e)(2). 1
For the remainder of the line, San Pedro filed, and the
STB granted, several requests to postpone the deadline to
consummate abandonment. See, e.g., STB Docket No.
1081X (Jun. 8, 2007). The current deadline for San Pedro
to consummate abandonment is July 26, 2011. STB
Docket No. 1081X (May 14, 2010).

Although the Northern Stretch of the rail corridor no
longer serves as a railway, no public trail has been estab-

1 This regulation provides that “[a] railroad that re-
ceives authority from the Board to abandon a line (in a
regulated abandonment proceeding under 49 U.S.C.
§ 10903, or by individual or class exemption issued under
49 U.S.C. § 10502) shall file a notice of consummation
with the Board to signify that it has exercised the author-
ity granted and fully abandoned the line (e.g., discontin-
ued operations, salvaged the track, canceled tariffs, and
intends that the property be removed from the interstate
rail network).” 49 C.F.R. § 1152.29(e)(2).
5 LADD v. US

lished. According to the appellants, this corridor provides
a convenient route to enter the United States from Mex-
ico, and it is now used by illegal aliens and drug smug-
glers and patrolled by the U.S. Border Patrol. The
appellants further state that they have tried to “fence and
build barriers across the abandoned rail line but the
Border Patrol and trespassers continue to cut the fence
and remove the barriers.” Appellants’ Br. at 10.

The appellants brought suit against the United States
in the Court of Federal Claims alleging a violation of the
takings clause of the Fifth Amendment to the United
States Constitution. The appellants alleged, among other
things, that the NITU had forestalled or taken their state
law reversionary property interests. J.A. 65. The appel-
lants further alleged that pursuant to Caldwell, 391 F.3d
1226, and Barclay, 443 F.3d 1368, a taking of their prop-
erty occurred when the STB issued the NITU on July 25,
2006. J.A. 66.

The Court of Federal Claims concluded that no taking
had occurred and dismissed the case. Ladd v. United
States, 90 Fed. Cl. 221, 228 (2009). The court determined
that “[a] physical taking cannot have occurred in these
circumstances, where neither the NITU nor another
aspect of the federal abandonment process has resulted in
the construction of a trail for public use.” Id. at 226. The
court further stated that “[i]ssuance of a NITU cannot be
a physical taking where the landowners have not suffered
a physical invasion of the property in which they claim
interests.” Id. The court explained that “[c]onversion of a
railroad right-of-way to a public trail has been the physi-
cal invasion necessary to finding takings in earlier Rails-
to-Trails cases,” citing Barclay, 443 F.3d at 1372, Cald-
well, 391 F.3d at 1228, and Preseault v. International
Commerce Commission, 100 F.3d 1525, 1551-52 (Fed. Cir.
LADD v. US 6

1996) (en banc). Id. at 227. The court held that unlike
Preseault, Caldwell, and Barclay, in this case, a trail has
not yet been established. Id. The court stated that the
rail corridor remained with the railroad, and thus “[t]he
railroad holds the key to completing the regulatory aban-
donment process. The NITU has not effected a change of
status in plaintiffs’ property interests.” Id. The court
acknowledged that “Caldwell and Barclay suggest that
temporary takings could occur in some circumstances, but
those cases addressed applicable statutes of limitations
for takings in this court.” Id. The court concluded that a
“physical presence by the general public, made possible by
government action, is the crucial element so far missing
from this case.” Id.

The landowners appeal. We have jurisdiction under
28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the court’s grant of summary judgment de
novo. Casitas Mun. Water Dist. v. United States, 543 F.3d
1276, 1283 (Fed. Cir. 2008). Summary judgment is ap-
propriate where the record shows that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Ct. Fed. Cl. R.
56(c). The issue of whether a taking has occurred is a
question of law, reviewed de novo, with factual underpin-
nings, which we review for clear error. Casitas, 543 F.3d
at 1283.

The Takings Clause of the Fifth Amendment provides
that private property shall not “be taken for public use,
without just compensation.” U.S. Const. Amend. V. “The
Amendment does not prohibit the taking of private prop-
erty, but instead places a condition on the exercise of that
7 LADD v. US

power.” Preseault v. Int’l Commerce Comm’n, 494 U.S. 1,
11 (1990) (citation and quotation marks omitted). “The
Supreme Court has emphasized that the Takings Clause
was designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.” Ca-
sitas, 543 F.3d at 1288 (quotation marks and citation
omitted). It is settled law that a Fifth Amendment taking
occurs in Rails-to-Trails cases when government action
destroys state-defined property rights by converting a
railway easement to a recreational trail, if trail use is
outside the scope of the original railway easement. See
Ellamae Phillips Co. v. United States, 564 F.3d 1367,
1373 (Fed. Cir. 2009). This appeal concerns whether the
government’s issuance of a NITU constitutes a com-
pensable taking, where no conversion to a recreational
trail has occurred.

The appellants’ assert that two of our prior cases,
Caldwell, 391 F.3d 1226 and Barclay, 443 F.3d 1368,
indicate that the issuance of a NITU amounts to a com-
pensable taking, whether or not the easement is trans-
ferred or a recreational trail is ever established. We
describe these cases in detail before turning to the parties’
arguments.

A.

In Caldwell, a railroad company, Norfolk Southern
Railway Company (Norfolk), filed a request for exemption
under 49 U.S.C. § 10505 (now § 10502) to abandon a rail
corridor in Columbus, Georgia. 391 F.3d at 1230-31.
Norfolk agreed to negotiate a trail use agreement with the
city of Columbus, and on August 31, 1994, the STB issued
a NITU. Id. at 1231. At the request of Norfolk and the
city, the STB extended the NITU to cover an additional
LADD v. US 8

length of railroad line and extended the negotiating
period by 180 days. Id. On August 17, 1995, Norfolk
entered into a trail use agreement with the Trust for
Public Land, an entity chosen by the city to negotiate the
agreement. Id. The STB again extended the NITU
negotiating period to ensure that it remained in effect
until the actual transfer of the easement to the trail
manager. Id. at 1232. Norfolk transferred its easement
to the trust on October 9, 1996, and the deed was re-
corded on October 11, 1996. Id. On October 7, 2002—less
than six years after the transfer of the easement—Mr.
William Caldwell filed suit in the Court of Federal Claims
on behalf of himself and a class of people owning land
burdened by the transferred easement. Mr. Caldwell
alleged that the conversion of the rail corridor to a public
trail constituted a compensable taking because the con-
version extinguished state law reversionary property
interests that would otherwise take effect after the rail-
road abandoned its line. Id. The Court of Federal Claims
dismissed the suit as untimely, concluding that the stat-
ute of limitations began to run on August 17, 1995, when
Norfolk entered into a trail use agreement. Id. This
court affirmed the dismissal, but concluded that the
limitations period began to run on the date that the NITU
issued. Id. at 1233. We determined that the limitations
period began when state law reversion interests are
“forestalled by operation of § 8(d) of the Trails Act,” and
we further determined that “this occurs when the railroad
and trail operator communicate to the STB their intention
to negotiate a trail use agreement and the agency issues
an NITU that operates to preclude abandonment under
section 8(d).” Id. We explained that “[t]he issuance of the
NITU is the only government action in the railbanking
process that operates to prevent abandonment of the
corridor and to preclude the vesting of state law rever-
sionary interests in the right-of-way.” Id. at 1233-34. We
9 LADD v. US

noted that in some cases, no trail use agreement is
reached, and we stated that “[i]n these circumstances, a
temporary taking may have occurred.” Id. We affirmed
the dismissal of Mr. Caldwell’s suit as untimely because
although he filed within six years of the actual transfer of
the easement, he filed more than six years after the NITU
issued. 2

In Barclay, we reaffirmed that “takings law supplies a
single bright-line rule for accrual.” 443 F.3d at 1378. We
addressed two appeals, one from Mr. John Barclay and
other landowners (Barclay appellants) and the other from
Renewal Body Works, Inc. (Renewal). Renewal filed its
complaint in the Court of Federal Claims on December 11,
2003, alleging that the conversion of a railroad right-of-
way across its property under the Trails Act constituted a
Fifth Amendment taking. Id. at 1372. The STB issued a
NITU on October 23, 1995, id., and the railroad compa-
nies involved “finally reached an agreement with the city
on December 22, 1997 through which the city purchased
[the railroads’] interests in the rail line segment.” Re-
newal Body Works, Inc. v. United States, 64 Fed. Cl. 609,
612 (2005). Noting that Caldwell was binding precedent,
the Court of Federal Claims dismissed the suit as un-
timely because the complaint was filed more than six
years after the NITU issued, even though the complaint

2 The dissent argued that Mr. Caldwell could not
have filed a claim before the easement was actually
transferred on October 9, 1996. Id. at 1237. According to
the dissent, “[n]egotiation of a possible future event may
state a hope and a plan, but it is not a fixed, ripe, and
compensable taking. The owners of the fee had no right
to compensation based on or at the time of these authori-
zations to negotiate; thus these authorizations could not
accrue the period of limitations.” Id.
LADD v. US 10

was filed less than six years after the trail use agreement.
Id. at 613.

On appeal, Renewal argued that the issuance of the
NITU in October 1995 did not actually block Renewal’s
reversionary interest. Barclay, 443 F.3d at 1373. Re-
newal pointed out that the railroad removed its ties and
tracks from Renewal’s land by June 1995, “effectively
abandoning it under California law and granting Renewal
‘full and exclusive, undisturbed, and uncontested posses-
sion and use’ of the property until trail use began.” Id. at
1373. Renewal apparently used the right-of-way for
parking after the railroad removed its ties, and it argued
that the conversion to trail use ousted it from the right to
use the right-of-way for parking. Id. at 1374 n.5. Re-
newal argued that its claim did not accrue until it was
physically ousted from the property. Id. We rejected this
argument. Id. at 1374. We explained that
“[a]bandonment cannot occur until authorized by federal
law, and the NITU precludes abandonment and the
reversion that would follow if abandonment were con-
summated . . . . The barrier to reversion is the NITU, not
physical ouster from possession. ” Id. We stated that
“after the issuance of the NITU, the easement continued
in existence beyond the time when it otherwise would
have been abandoned. Thus, the NITU triggers accrual.”
Id. (quotation marks and citation omitted).

We also affirmed the dismissal of the Barclay appel-
lants’ claim. On April 7, 2004, the Barclay appellants
filed suit in the United States District Court for the
District of Kansas alleging that the railroad rights-of-way
across their property were converted into three different
recreational trails and that these conversions constituted
Fifth Amendment takings. Id. at 1371-72. The STB
issued NITUs related to the three trails in 1995 and
11 LADD v. US

1996—more than six years before the complaint was filed.
Id. at 1372 n.2. Following Caldwell, which issued while
the case was pending, the district court dismissed the
case as untimely. Id. at 1372. On appeal, the Barclay
appellants argued that under Kansas law, the taking
occurs “when the railroad ceases operations and the trail
operator assumes physical possession.” Id. The Barclay
appellants urged that the trail operator’s physical occupa-
tion, and not the NITU, blocked the reversion of their
state law property rights. Id. We stated that even if that
were true, “state law reversion was still delayed by the
issuance of the NITU, and the claim still accrued with the
issuance of the NITU.” Id. Notably, the NITU issued—
and thus the claim accrued—while the railroad was still
operating. We stated: “It similarly makes no difference
that railroad use may have continued after the NITU
issued.” Id. at 1374.

The Barclay appellants attempted to distinguish their
case from Caldwell. The Barclay appellants pointed out
that they petitioned to the STB to reopen the proceedings
for a portion of the right-of-way (the Sunflower Trail), and
they asserted that claims related to that trail did not
accrue until their petition was finally denied. Id. at 1377.
We rejected this position: “This is merely another version
of the argument—rejected in Caldwell—that the original
NITU should not be viewed as the taking because subse-
quent events might render the NITU only temporary.” Id.
at 1378. The Barclay appellants also argued that when
the STB issues a modified NITU, a separate taking oc-
curs. We disagreed and determined that a series of NITU
orders must be viewed as a single and continuous gov-
ernment action, and thus any extensions or modifications
of the original NITU are not separate compensable tak-
ings. Id. at 1375-76. We concluded that this was true
even when the STB issued a new NITU ten days after the
LADD v. US 12

original NITU expired. Id. After rejecting all of the
appellants’ arguments, we affirmed the dismissal, con-
cluding that “we adhere to Caldwell and hold that the
issuance of the original NITU triggers the accrual of the
cause of action.” Id. at 1378. 3

B.

The appellants argue that we created a bright-line
rule in Caldwell, 391 F.3d at 1235, that a taking occurs
when the STB issues a NITU. The appellants assert that
we reaffirmed this rule in Barclay, in which we stated
that “a Trails Act taking begins and a takings claim
accrues, if at all, on issuance of the NITU . . . . The
issuance of the NITU is the only event that must occur to
entitle the plaintiff to institute an action.” 443 F.3d at
1373 (quotation marks and citations omitted). The appel-
lants further assert that we once again affirmed this rule,
albeit in a non-precedential opinion, stating that “[w]e
held in Caldwell and reaffirmed in Barclay v. United
States, 443 F.3d, 1368, 1378 (Fed. Cir. 2006) that the
issuance of the original NITU triggers the accrual of the
cause of action under the Tucker Act.” Illig v. United

3 The dissent argued that “[a] Fifth Amendment
taking cannot occur simply upon issuance of a NITU,
because the deprivation of the reversion has not yet
occurred, and may never occur.” Id. at 1378. The dissent
explained that under Preseault, 100 F.3d 1525, the con-
version of a railroad to a trail can constitute a taking, but
the cause of action and the right to compensation do not
vest until the claim accrues. Id. at 1379. The dissent
stated that “[t]he general rule in physical takings cases is
that the taking is actionable when the property is taken
and liability is fixed, not when it is suggested to be
taken.” Id. The dissent further explained that the major-
ity’s “choice of bright line would vest compensation rights
although no taking may ever occur.” Id. at 1380.
13 LADD v. US

States, 274 Fed. Appx. 883 (Fed. Cir. 2008), cert denied,
77 U.S.L.W. 3707 (U.S. June 29, 2009) (No. 08-852).

The appellants acknowledge that in Caldwell, Bar-
clay, and Illig, we addressed the beginning of the limita-
tions period for a Rails-to-Trails takings claim. The
appellants explain that the standard rule is that the
limitations period commences when the cause of action is
complete. They contend that it is not possible to have a
claim accrue without having all elements of the claim
present on the same date. Thus, according to the appel-
lants, by holding that the limitations period begins on the
date of the NITU, we determined that all of the elements
of a takings claim were present on that date. The appel-
lants argue that it is improper to look to events after the
accrual date—such as whether a trail was established—to
determine whether a claim arose. “If the statute of limi-
tations starts running (as it has in every Trails Act case
since Caldwell) when the NITU is issued even though no
trail is then ‘established’ and no physical occupation of
the land has occurred, then a trail being ‘physically
established’ cannot be an element required to fix the
government’s liability.” Appellants’ Br. at 35. The appel-
lants argue that the Court of Federal Claims “seems to
believe a NITU triggers claim accrual for the purpose of
beginning the statute of limitations clock running, but a
landowner’s taking claim does not arise until a trail is
subsequently established.” Id. at 34. They contend that if
we affirm the decision of the Court of Federal Claims,
“landowners whose property is subject to a NITU would
be left in the untenable position of having the [six-year
statute of] limitations period running – and even expiring
– before their claim for compensation accrues.” Id. at 36.
The appellants conclude that the Court of Federal Claims
erred by not following the Caldwell bright-line rule.
LADD v. US 14

The government responds that a physical occupation
is required for a physical takings claim. The government
contends that the NITU did nothing more than place a
temporary regulatory hold or moratorium on the rail-
road’s authority to abandon its rail corridor, allowing the
railroad and a trail operator to negotiate a potential trail
use agreement. The government asserts that under
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, 535 U.S. 302, 324 (2002), the mere
delay in the use of property does not result in a physical
takings claim. The government asserts that the appel-
lants did not assert a regulatory takings claim, and that
even if they had brought such a claim, it would also fail.
The government asserts that a Rails-to-Trails takings
claim requires an actual conversion of a railroad to a new
use that is outside the scope of the initial conveyance, and
the government explains that the NITU does not by itself
result in such a conversion.

The government seeks to distinguish Caldwell and
Barclay, asserting that those cases address when a tak-
ings claim accrues rather than whether a takings claim
can be established. The government points to our state-
ment in Caldwell that: “This case does not involve, and
we do not herein address, whether the issuance of the
NITU in fact involves a compensable temporary taking
when no agreement is reached.” Caldwell, 391 F.3d at
1234 n.7. The government argues that in Caldwell, we
“recognized that a categorical treatment of a NITU is not
possible,” Gov’t Br. at 31, quoting from the following
passage:
15 LADD v. US

[T]he NITU operates as a single trigger to several
possible outcomes. It may, as in this case, trigger
a process that results in a permanent taking in
the event that a trail use agreement is reached
and abandonment of the right-of-way is effectively
blocked. Alternatively, negotiations may fail, and
the NITU would then convert into a notice of
abandonment. In these circumstances, a tempo-
rary taking may have occurred. It is not unusual
that the precise nature of the takings claim,
whether permanent or temporary, will not be
clear at the time it accrues.

Caldwell, 391 F.3d at 1234 (citations and footnote omit-
ted). The government asserts that this case differs from
Caldwell and Barclay in that no trail was ever estab-
lished.

The government further asserts that the delay in the
reversion of the appellants’ state law property interests is
not due to the NITU but rather is due to San Pedro’s
extensions for the time to file a notice of consummation.
The government asserts that San Pedro had the option to
request these extensions notwithstanding the NITU.
Thus, the government argues that the regulatory process
is the same as it would have been had no NITU issued.
The government asserts that these facts do not give rise
to a compensable taking.

C.

Whether we agree with the Caldwell bright-line rule,
it is settled law. A taking occurs when state law rever-
sionary property interests are blocked. Caldwell, 391
F.3d at 1233-34; Barclay, 443 F.3d at 1374 (“The barrier
to reversion is the NITU, not physical ouster from posses-
LADD v. US 16

sion.”). The NITU is the government action that prevents
the landowners from possession of their property unen-
cumbered by the easement. 4 We are bound by our prior
decisions that when the NITU is issued the claim has
accrued and the statute of limitations period commences.
“Having determined that the appellants’ takings claim
accrued on the date when the NITU was issued, we must
now determine if the six year statute of limitations bars
Caldwell’s claim in this case.” Caldwell, 391 F.3d at
1235. “The issuance of the NITU is the only event that
must occur to ‘entitle the plaintiff to institute an action.’
Accrual is not delayed until a trail use agreement is
executed or the trail operator takes physical possession of
the right-of-way.” Barclay, 443 F.3d at 1373. “[W]e
adhere to Caldwell and hold that the issuance of the
original NITU triggers the accrual of the cause of action.”
Id. at 1378; see also id. at 1374 (“[T]he NITU triggers
accrual.”).

The government’s attempts to distinguish Caldwell
and Barclay are not persuasive. In Caldwell and Barclay,
we indicated that physical occupation is not required.
See, e.g., Barclay, 443 F.3d at 1374 (“The barrier to rever-
sion is the NITU, not physical ouster from possession.”).
Indeed, the Barclay appellants’ claim accrued while the
railroad was still operating. Id. “In general, a takings
claim accrues when ‘all events which fix the government’s
alleged liability have occurred and the plaintiff was or
should have been aware of their existence.’’ Boling v.
United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000).
Because according to our precedent, a takings claim

4 The government disputes the character of the
property rights in this case. For purposes of summary
judgment, however, we must assume facts in favor of the
appellants.
17 LADD v. US

accrues on the date that a NITU issues, events arising
after that date—including entering into a trail use
agreement and converting the railway to a recreational
trail—cannot be necessary elements of the claim. Hence
it is irrelevant that no trail use agreement has been
reached and that no recreational trail has been estab-
lished.

This court is bound by Barclay and Caldwell. We can-
not and will not divorce the claim accrual from com-
mencement of the statute of limitations as the
government urges. “The standard rule is that the limita-
tions period commences when the plaintiff has a complete
and present cause of action.” Bay Area Laundry & Dry
Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522
U.S. 192, 201 (1997) (quotation marks omitted). “Unless
Congress has told us otherwise in the legislation at issue,
a cause of action does not become ‘complete and present’
for limitations purposes until the plaintiff can file suit
and obtain relief.” Id. “While it is theoretically possible
for a statute to create a cause of action that accrues at one
time for the purpose of calculating when the statute of
limitations begins to run, but at another time for the
purpose of bringing suit, we will not infer such an odd
result in the absence of any such indication in the stat-
ute.” Reiter v. Cooper, 507 U.S. 258, 267 (1993). Section
2501 sets forth the applicable limitation period: “Every
claim of which the United States Court of Federal Claims
has jurisdiction shall be barred unless the petition
thereon is filed within six years after such claim first
accrues.” Nothing in § 2501 indicates that the claim
accrual date for purposes of bringing suit differs from the
date on which the limitations period commences. There is
no basis for concluding that the statute of limitations
begins to run on a land owner’s physical taking claim
when the NITU issues, but that a physical taking claim
LADD v. US 18

has not accrued at that point. We will not divorce claim
accrual and the limitations period. Therefore, the issu-
ance of the NITU marks both the beginning of the limita-
tions period and the date on which a claim accrues for
purposes of bringing suit.

To hold otherwise could potentially deprive appellants
of the ability to file a takings claim at all. As explained
by the appellants, landowners whose property is subject
to a NITU would be left in the untenable position of
having the six-year limitations period running—and even
expiring—before they could file suit. Indeed, here, the
limitations period began in July 2006, and STB extended
the deadline for San Pedro to file a notice of consumma-
tion indicating abandonment of the Northern Stretch to
July 2011. If San Pedro elects to request another one-
year extension and does not commence abandonment by
July 2012, the limitations period will have expired. If we
adopted the government’s proposed rule, the limitations
period for the taking of the land owner’s property rights
would expire before the land owner ever had the right to
bring suit for this same taking (prior to claim accrual).

In fact, in its brief opposing the petitioner’s request
for certiorari in Illig, 274 Fed. Appx. 883, the government
acknowledged that Caldwell established the right to seek
compensation upon the issuance of a NITU. The govern-
ment explained:

It is true that, under Caldwell, landowners may
seek compensation for an alleged taking immedi-
ately upon issuance of the NITU, even though no
trail use agreement is reached, and any taking
that may later be found would only have been
temporary.
19 LADD v. US

J.A. 1736. The government opposed the grant of certio-
rari and extolled the bright-line rule as having “the
singular virtue of providing certainty to prospective
claimants of when their claims accrue and when the
limitations period expires.” J.A. 1735.

In light of Caldwell and Barclay, we reject the gov-
ernment’s present suggestion that the NITU is nothing
more than a temporary regulatory hold on the railroad’s
authority to abandon its railway. In Caldwell, we re-
jected the notion that two takings might occur in a Rails-
to-Trails case—a regulatory taking followed by a physical
taking. We stated that “a taking occurs when the owner
is deprived of use of the property . . . by blocking the
easement reversion. While the taking may be aban-
doned . . . by the termination of the NITU[,] the accrual
date of a single taking remains fixed.” Caldwell, 391 F.3d
at 1235. We further explained: “The NITU marks the
‘finite start’ to either temporary or permanent takings
claims by halting abandonment and the vesting of state
law reversionary interests when issued.” Id. Thus, the
NITU forestalls or forecloses the landowners’ right to
unencumbered possession of the property. Cf. Nollan v.
Cal. Costal Comm’n, 483 U.S. 825, 831 (1987) (“To say
that the appropriation of a public easement across a
landowner's premises does not constitute the taking of a
property interest but rather … ‘a mere restriction on its
use,’ is to use words in a manner that deprives them of all
their ordinary meaning.”) (internal citations omitted).

As indicated in Caldwell and Barclay, where no trail
use agreement is reached, the taking may be temporary.
See Caldwell, 391 F.3d at 1234; Barclay, 443 F.3d at
1378. However, physical takings are compensable, even
when temporary. See Hendler v. United States, 952 F.2d
1364, 1376 (Fed. Cir. 1991) (“A taking can be for a limited
LADD v. US 20

term-what is ‘taken’ is, in the language of real property
law, an estate for years, that is, a term of finite duration
as distinct from the infinite term of an estate in fee sim-
ple absolute.”); see also Yuba Natural Res., Inc. v. United
States, 821 F.2d 638, 641-42 (1987). The duration of the
taking goes to damages, not to whether a compensable
taking has occurred.

CONCLUSION

For the foregoing reasons, the decision of the Court of
Federal Claims is reversed. We remand for a determina-
tion of the compensation owed to the appellants for the
taking of the Southern Stretch and the Northern Stretch
of railway line.

REVERSED AND REMANDED