Caquelin v. United States

In the United States Court of Federal Claims
No. 14-37L

(Filed: November 6, 2018)

**********************************
NORMA CAQUELIN, ) Post-trial decision on remand in a rails-to-
) trails takings case; liability for a
Plaintiff, ) temporary taking arising upon issuance of
) a NITU by the Surface Transportation
v. ) Board
)
UNITED STATES, )
)
Defendant. )
)
)
**********************************

Thomas S. Stewart, Stewart, Wald & McCulley LLC, Kansas City, Missouri, for
plaintiff. With him at the trial and on the briefs was Elizabeth McCulley, Stewart, Wald &
McCulley LLC, Kansas City, Missouri. Also with him on the briefs were Steven M. Wald of
Stewart, Wald & McCulley LLC, St. Louis, Missouri, and J. Robert Sears, of Baker Sterchi
Cowden & Rice, L.L.C., St. Louis, Missouri.

Kristine S. Tardiff, Trial Attorney, Natural Resources Section, Environmental and
Natural Resources Division, United States Department of Justice, Concord, New Hampshire for
defendant. With her on the briefs was Jeffrey H. Wood, Acting Assistant Attorney General,
Environmental and Natural Resources Division, United States Department of Justice,
Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

This rails-to-trails takings case is before the court after a trial held on remand from the
United States Court of Appeals for the Federal Circuit. The remand directed the court to develop
a factual record bearing on the government’s contention that a set of precedents in the court of
appeals should be overruled. See Caquelin v. United States, 697 Fed. Appx. 1016 (Fed. Cir.
2017) (“Caquelin II”), vacating 121 Fed. Cl. 658 (2015) (“Caquelin I”). The government had
argued on appeal that a recent decision of the Supreme Court, Arkansas Game & Fish Comm’n v.
United States, 568 U.S. 23 (2012), had undercut prior decisions by the Federal Circuit (and,
indeed, the Supreme Court) relating to the analysis of takings claims in the rails-to-trails context.
See Caquelin II, 697 Fed. Appx. at 1019 (“[E]n banc review may be warranted” because the
“Arkansas Game decision does raise questions about Ladd [v. United States, 630 F.3d 1015 (Fed.
Cir. 2010)],” and other earlier rails-to-trails decisions by the court of appeals.).

The case has its genesis in a Notice of Interim Trail Use (“NITU”) issued by the federal
Surface Transportation Board (“STB”), which authorized conversion of a portion of a railroad
line located in Hardin and Franklin Counties, Iowa and its attendant right-of-way into a public
recreational trail pursuant to Section 208 of the National Trails System Act Amendments of
1983, Pub. L. No. 98-11, § 208, 97 Stat. 42, 98 (“Trails Act”) (codified at 16 U.S.C. § 1247(d)).1
Plaintiffs, Kenneth Caquelin, now deceased,2 and his wife, Norma Caquelin, owned two parcels
of land adjacent to and under the railroad right-of-way on the date of the STB’s action.3 For one
parcel, the predecessor railroad had acquired its interest by a right of way deed, and for the other
parcel, the railroad had acquired its rights by condemnation. Stip. ¶ 1; Caquelin I, 121 Fed. Cl.
at 660. The successor railroad held easements limited to railroad purposes that were exceeded by
issuance of the NITU, rendering the government liable for taking plaintiffs’ property without just
compensation under the Fifth Amendment. See, e.g., Preseault I, 494 U.S. at 12-13 (holding that
the Tucker Act, 28 U.S.C. § 1491(a), provided a remedy for an alleged taking of a property

1
The original purpose of the Trails Act “was to preserve unused railroad rights-of-way by
converting them into recreational trails.” Barclay v. United States, 443 F.3d 1368, 1371 (Fed.
Cir. 2006) (citing Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990) (“Preseault I”)).
The Trails Act Amendments in 1983 added new provisions that created a “railbanking” system
that allowed rail carriers to transfer management of rail corridors to private or public entities for
interim management as public recreational trails while preserving the ability to reactivate the
abandoned rail corridors for potential future railroad use. 16 U.S.C. § 1247(d). A NITU serves
as the mechanism that bars the fee owners’ reversionary interest during the pendency of trail-use
negotiations. See Preseault I, 494 U.S. 8, 10; Barclay, 443 F.3d at 1374.
2
Mr. Caquelin died on July 24, 2017. Tr. 674:9-14; Corrected Stipulations of Fact for
Trial (“Stip.”) ¶ 5, ECF No. 51. On the date the NITU was issued, Mr. and Mrs. Caquelin held
the property as joint tenants with full right of survivorship, Stip. Ex. 4, and Mrs. Caquelin as the
surviving spouse succeeded to title upon her husband’s death, see id.

The transcript of the trial will be cited as “Tr. __.” The Stipulations incorporate
extensive documentary exhibits, and citations to those exhibits will appear as “Stip. Ex. ___.”
Defendant’s exhibits will be cited as “DX ___,” and plaintiff’s exhibits will be cited as “PX
___.”
3
Mrs. Caquelin is a widow in her 80s who was in ill health at the time of the trial and not
able to testify despite having been called by the parties to do so. Tr. 445:22 to 447:8, 671:10 to
674:19. The property at issue was purchased by Mrs. Caquelin’s great grandfather, William
Summer Nobles in 1892. Stip ¶ 2. Mrs. Caquelin’s family has owned the farmland since that
purchase. Stip. ¶ 2. In Mrs. Caquelin’s hands, the property thus qualifies as a “Century Farm” in
Iowa parlance. The house in which Mrs. Caquelin was born and raised abuts her farmland and
was viewed during the site visit. Tr. 672:22 to 673:9.

2
interest in land previously used as a railroad right-of-way that had been transferred to a public
entity for use as a public trail).4
FACTS5

The parties’ dispute concerns a 10.46-mile strip of land extending from milepost 201.46
near Ackley, Iowa, to milepost 191.0, outside Geneva, Iowa, upon which the North Central
Railway Association, Inc. (“North Central Railway”) previously acquired easements for railway
purposes through a series of mesne conveyances. Caquelin I, 121 Fed. Cl. at 660. A railroad
had been constructed by the Eldora Railroad and Coal Company in 1866 from approximately one
mile north of Eldora, Iowa, to Ackley, Iowa for the purpose of transporting coal from the Coal
Bank Hill area in the Iowa River valley near Eldora6 to a connection at Ackley with an east-west
railroad, then known as the Dubuque & Sioux City Railroad, which later became part of the
Illinois Central Railroad. Stip. Ex. 11 at STB000023. Between 1868 and 1870, the line was
extended north to Northwood, Iowa, and south to Marshalltown, Iowa, where it connected with
the Chicago & North Western Railroad. Id. A predecessor extending the rail line, the Central
Railroad of Iowa,7 acquired rights in one of the parcels at issue by a right-of-way deed, see
Caquelin I, 121 Fed. Cl. at 660 (citing Pls.’ Mem. in Support of Mot. for Partial Summ.
Judgment on Liability (“Pls.’ Mot.”), at 13 & Exs. A-2 (Maps of the Line) & J (Right of Way
Deed by Henry and Maria Ihde to Central Railroad of Iowa (filed Apr. 30, 1870)), and rights to
the second parcel by a condemnation, see id. (citing Pls.’ Mot. at Ex. K (Latham Condemnation,
Franklin County, Iowa (witnessed Aug. 31, 1870))). North Central Railway acquired property
rights in the rail corridor in 1989. See United States’ Cross-Mot. for Summ. Judgment & Mem.
in Support, and Opp’n to Pls.’ Mot. for Partial Summ. Judgment on Liability (“Def.’s Cross-
Mot.”) at 2-3, ECF No. 18. The rail corridor traverses a rural area of fertile agricultural land.
See id. at 2; see also Stip. Ex. 6 (Franklin County Assessor’s map of parcels). Indeed, the
segment of the rail corridor at issue in this case is comprised of Klinger silty clay loam and

4
The Taking Clause of the Fifth Amendment provides that “private property [shall not] be
taken for public use, without just compensation.” U.S. Const. amend. V.
5
The recitation of facts is drawn from the record of the trial held in Eldora, Iowa from
May 30, 2018 through June 1, 2018, stipulations of fact filed by the parties in advance of trial,
and uncontested facts developed during proceedings in 2015 related to the parties’ cross-motions
for partial summary judgment on liability.
6
Mining was discontinued many years ago. The locality of the mine now is preserved in
name by the Coal Bank Hill Bridge, which traverses the Iowa River between Fallen Rock State
Preserve to the north and Pine Lake State Park to the south. The bridge is listed on the National
Register of Historic Places.
7
The Central Railroad of Iowa was succeeded by the Central Iowa Railway and
eventually became part of the Minneapolis and St. Louis Railway system.

3
Dinsdale silty clay loam (designated soil types 184 and 337B, respectively), DX22, which both
have a very high Corn Suitability Rating (“CSR”) of 95, DX 11; see also Tr. 246:20 to 248:5.8

Ms. Caquelin is a resident of Cedar Falls, Iowa, who acquired the two parcels, numbered
1219200016 and 1219200001, in Franklin County, Iowa, through inheritance from her
grandparents. Stip. ¶¶ 2-5 & Ex. 6 (map of parcels).9 Plaintiff alleges that under Iowa law, she
gained fee title up to the centerline of the rail corridor in question. Compl. ¶ 4; see also Pl.’s
Mot. at 1-2, Exs. G (Warranty Deed (May 11, 2007)), H (Summary of Parcels (Jan. 15, 2015)),
& I (Map of Parcels); Hr’g Tr. 5:21-25 (May 14, 2015).

On May 13, 2013, North Central Railway filed a Proposed Abandonment with the STB,10
including a verified notice of exemption pursuant to 49 C.F.R. § 1152.50, seeking to abandon the
railroad line on the grounds that “no local traffic [or overhead] has moved over the [l]ine for at
least two years.” Stip. Ex. 11 at STB000006, STB000009 (Notice of Exemption-Abandonment
Exemption (May 9, 2013)).11 Under STB’s regulations, the abandonment exception for the

8
CSR ratings extend from 00 (nonexistent) to 100 (perfect). By comparison, CSR ratings
for other good-to-excellent farmland that was at issue in another rails-to-trails case, located in the
same general area of Iowa, ranged from 56 to 97.5. See Sears v. United States, 132 Fed. Cl. 6,
16 (2017), aff’d, 726 Fed. Appx. 823 (Fed. Cir. 2018). For a more detailed description of CSR
ratings in Iowa, which are based on soil information generated by the United States Department
of Agriculture and adapted by Iowa State University to take account of variables pertinent to
land in the State, see Sears, 132 Fed. Cl. at 13-14 nn.11, 12.
9
In 1982, Mrs. Caquelin inherited a real estate contract from her mother Lois R. Hoffman.
Stip. ¶ 3; see also Stip. Ex. 1 (real estate contract between Lois R. Hoffman and Gary L. and
Joyce M. Fairbanks (Mar. 13, 1981)). At that point, she held legal title but not equitable title.
See Installment Land Contract, Black’s Law Dictionary (10th ed. 2014). That conditional
contract for sale was never fully implemented, and the equitable as well as legal title was fully
vested in Mrs. Caquelin in 1986. Stip. ¶ 4; see also Stip. Exs. 2, 3 (deeds recorded Dec. 29 and
30, 1986).
10
The STB has authority “to regulate the construction, operation, and abandonment of
most railroad lines in the United States.” Caldwell v. United States, 391 F.3d 1226, 1228 (Fed.
Cir. 2004).
11
49 C.F.R. § 1152.50 addresses abandonments and discontinuances of service and
trackage rights that are exempt from the generally applicable procedures outlined under 49
U.S.C. § 10903 and provides, in pertinent part:

An abandonment or discontinuance of service or trackage rights is exempt if the
carrier certifies that no local traffic has moved over the line for at least 2 years
and any overhead traffic on the line can be rerouted over other lines and that no
formal complaint filed by a user of rail service on the line (or a state or local
government entity acting on behalf of such user) regarding cessation of service
4
railroad line was scheduled to become effective July 5, 2013. See Stip. Ex. 11 at STB000074-75
(STB Notice (June 5, 2013)).

Shortly before the abandonment exception became effective, on June 24, 2013, the City
of Ackley and the Iowa National Heritage Foundation (collectively “the City”) filed a request for
issuance of a Public Use Condition under 49 U.S.C. § 10905 and a NITU under the Trails Act.
See Stip. ¶ 12.a & Ex. 11 at STB000066 (Pet. for Recons. (filed June 21, 2013 and entered June
24, 2013)); Hr’g Tr. 6:4-11 (May 14, 2015) (noting that “the railroad initially applied purely for
abandonment”).12 Several days later, on June 27, 2013, a letter from North Central Railway was
entered with the STB indicating its agreement with the requested public use condition and related
restrictions and its willingness to negotiate with the Iowa Trails Council regarding acquisition of
the railroad line. See Stip. ¶ 12.c; see also Stip. Ex. 11 at STB000073 (Letter to Chief, Section
of Administration, Office of Proceedings, STB from Counsel for North Central Railway (filed
June 24, 2013 and entered June 27, 2013)). On July 3, 2013, STB accordingly issued a NITU for
the railroad line. Stip. Ex. 11 at STB000077 (STB Decision and Notice of Interim Trail Use or
Abandonment (July 3, 2013)).13 The NITU provided a 180-day period during which the railroad
could negotiate with the potential trail group regarding “railbanking and interim trail use” of the
corridor. Id. at STB000080. After the 180-day period, absent an extension, the NITU would
expire by its own terms, at which point the railroad would be authorized to abandon the line. See
id. at STB000081.

over the line either is pending with the Board or any U.S. District Court or has
been decided in favor of the complainant within the 2-year period. The complaint
must allege (if pending), or prove (if decided) that the carrier has imposed an
illegal embargo or other unlawful impediment to service.

49 C.F.R. § 1152.50(b) (emphasis added).
12
49 U.S.C. § 10905 provides, in relevant part:

When the [STB] approves an application to abandon or discontinue . . . , the
[STB] shall find whether the rail properties that are involved in the proposed
abandonment or discontinuance are appropriate for use for public purposes,
including highways, other forms of mass transportation, conservation, energy
production or transmission, or recreation. If the [STB] finds that the rail
properties proposed to be abandoned are appropriate for public purposes and not
required for continued rail operations, the properties may be sold, leased,
exchanged, or otherwise disposed of only under conditions provided in the order
of the [STB].

49 U.S.C. § 10905.
13
Mr. and Mrs. Caquelin maintained ownership over the two parcels in question on that
date.
5
 On October 15, 2013, the Iowa Trails Council filed a Trail Use Request with the STB,
and negotiations over a Trail Use Agreement ensued, contemplating that the rail corridor would
be used as a public recreational trail with railbanking for possible future activation as a railroad.
See Caquelin I, 121 Fed. Cl. at 662.14 No agreement was reached, however. On December 6,
2013, the Iowa National Heritage Foundation requested a 180-day extension to continue
negotiations, see Stip. Ex. 11 at STB000082 (Letter to Cynthia T. Brown, STB, from President,
Iowa Natural Heritage Foundation (Dec. 6, 2013)), but North Central Railway did not file a letter
indicating its consent, and on December 30, 2013, the NITU expired, see id.; see also Hr’g Tr.
12:7-15, 29:22 to 30:4 (May 14, 2015). On March 31, 2014, the railroad consummated
abandonment of its line and the STB’s regulatory jurisdiction ended. Stip. ¶ 12.f & Ex. 11 at
STB000085 (STB Decision (May 9, 2014)). On April 24, 2014, North Central Railway notified
the STB that it had exercised the authority to fully abandon the line. Id. ¶ 12.f & Ex. 11 at
STB000084 (Notice of Consummation (Apr. 24, 2014)).

On January 16, 2014, Mr. and Mrs. Caquelin filed suit in this court. Their complaint
alleged an uncompensated taking of their property in contravention of the Fifth Amendment.
Specifically, plaintiffs argued that cessation of railroad activities across the burdened property
effected an abandonment under Iowa law of the railroad-purposes easement, leading to a taking
when the STB forestalled plaintiffs from regaining use and possession of their property. Compl.
¶¶ 7-9. Plaintiffs averred the government’s action “diminish[ed] the value of the remaining
property[] and [engendered] delay damages based upon the delayed payment of compensation.”
Compl. ¶ 10. Plaintiffs requested damages equal to the “full fair market value of the property . . .
on the date it was [allegedly] taken, including severance damages and delay damages, and costs
and attorneys’ fees” in addition to “such further relief as [the] [c]ourt may deem just and proper.”
Compl. at 3.15

14
The complaint incorrectly lists the date as October 15, 2001. Compl. ¶ 6.
15
At trial, the parties conceded that the segment of the rail corridor at issue was limited to
the west half of the corridor south of milepost 191, an area of .359 acres. See PX 2 (Expert
Report of Dr. James B. Kliebenstein) at 7, 9; DX 18 (Expert Report of Gary Thien) at 7, 16; Tr.
204:15 to 207:18, 236:11 to 237:9, 511:4 to 516:20.

Mrs. Caquelin should have ownership of the west half of the corridor north of milepost
191 but for a cloud on title attributable to improper deeds transferring her interest to her neighbor
to the east, David Wohlford. The corridor north of milepost 191 was subject to a NITU issued
on October 23, 2001, Stip. Ex. 8 at STB000142, but no trail agreement was ever reached. The
railroad quitclaimed its right-of-way in the entirety of that part of the corridor to D.W.R.R., LLC
on October 21, 2002. Stip. Ex. 9 at US000033-34. D.W.R.R., LLC was controlled by Don
Wohlford, David Wohlford’s father. On December 18, 2003, D.W.R.R. LLC quitclaimed the
former railroad corridor north of milepost 191 to Mrs. Caquelin’s neighbor to the east, David
Wohlford. Stip. Ex. 10 at US 000039. This set of quitclaim deeds inappropriately encompassed
Mrs. Caquelin’s residual fee interest as well as that of Mr. Wohlford.
6
 On January 16, 2015, plaintiffs filed a motion for partial summary judgment on the issue
of liability. See Pls.’ Mot. On March 6, 2015, the government responded with a cross-motion
for partial summary judgment on the same issue. See Def.’s Cross-Mot. These motions were
thoroughly briefed and were argued at a hearing held on May 14, 2015. The court granted
plaintiff’s motion for summary judgment and denied defendant’s cross-motion for summary
judgment on June 17, 2015. Caquelin I, 121 Fed. Cl. at 658. In its opinion, the court concluded
that the government was liable to the Caquelins under the three-part analysis outlined by the
Federal Circuit in Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (“Preseault II”).
See Caquelin I, 121 Fed. Cl. at 663-67. Following this decision, on November 18, 2015, the two
parties stipulated to the amount of just compensation, including principal and interest, of
$900.00. Stipulation as to Just Compensation (“First Stip.”) at 1, ECF No. 30. Judgment was
entered under Rule 54(b) of the Rules of the Court of Federal Claims (“RCFC”) on January 6,
2016. Judgment, ECF No. 32. A few months later, the government submitted a notice for appeal
to the Federal Circuit. Notice of Appeal, ECF No. 35. In the appeal, the government argued
“the 180-day blocking of reversion was not a categorical taking, but instead calls for a multi-
factor analysis . . . invok[ing] the general ‘regulatory takings’ framework set forth to govern
land-use restrictions in Penn Central . . . and the temporary-takings analysis set forth to govern
the repeated controlled floodings . . . at issue in Arkansas Game & Fish . . . .” Caquelin II, 697
Fed. Appx. at 1019 (citing Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124
(1978); Arkansas Game, 568 U.S. 38-40). At bottom, the government’s “principal argument is
that Ladd should be overruled en banc” by the Federal Circuit and replaced by a more ad-hoc
multi-factor analysis. Id.

In a short per curium opinion, the Federal Circuit vacated and remanded this court’s
decision to grant summary judgment in favor of the plaintiffs. The Federal Circuit opined that
“[e]n banc review may be warranted” since “Arkansas Game does raise questions about Ladd,”
and instructed this court to further develop the litigation record to determine “how the
government-advanced multi-factor analysis applies in this case, on the assumption that such an
analysis is the governing standard.” Caquelin II, 697 Fed. App. at 1019-20 (emphasis added).
The appellate court noted that “this panel cannot declare Ladd no longer to be good law based on
. . . Arkansas Game.” Id. at 1019. The Federal Circuit also requested this court to “discuss[]
what facts invoke which of the Supreme Court’s standards” in order to “focus the appellate
consideration of the issues raised by the government.” Id. at 1020. In short, this court was
charged with developing a conceptual framework followed by analysis of a factual record
bearing on the government’s proffered multifactor analysis approach.

Following this prime directive of the Federal Circuit, the court started the process of
developing the requested factual record. In preparation for the trial, on April 3, 2018, the parties
filed joint stipulations of fact. See Stipulations of Fact for Trial, ECF No. 48. This was followed
by revised stipulations of fact for trial that corrected some minor errors, filed May 10, 2018. See
Stip. A three-day trial was held in Eldora, Iowa from May 30, 2018 to June 1, 2018. At the trial,
the court heard from both fact and expert witnesses and conducted a site visit on the second day
of trial for the court to see and examine the land at issue and to hear testimony from witnesses
about the land on site.

7
 After the trial, the court requested post-trial briefing by the parties to further hone the
factual record. Scheduling Order of June 11, 2018, ECF No. 61. Plaintiff filed her opening post-
trial brief on July 20, 2018. Pl.’s Post-Trial Br., ECF No. 66. The government filed its
responsive post-trial brief on August, 29, 2018. Def.’s Post-Trial Br., ECF No. 68. A reply brief
was filed by the plaintiff on September 11, 2018, Pl.’s Post-Trial Reply Br., ECF No. 69, and a
closing argument was held on September 19, 2018.

STANDARDS FOR DECISION

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 inquiry into
whether a compensable taking has occurred requires this court to resolve “a question of law
based on factual underpinnings.” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)
(citations omitted); see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984) (stating
that courts perform “an ‘ad hoc, factual’ inquiry” in analyzing whether a compensable taking has
occurred (quoting Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979))). In this case, Mrs.
Caquelin, as plaintiff, bears the burden of proving the relevant factual underpinnings of her claim
against the United States, and must generally proffer “‘evidence which is more convincing than
the evidence which is offered in opposition to it.’” Jazz Photo Corp. v. United States, 439 F.3d
1344, 1350 (Fed. Cir. 2006) (quoting Hale v. Department of Transp., 772 F.2d 882, 885 (Fed.
Cir. 1985)).

To establish a viable takings claim, Mrs. Caquelin must prove two things. First, she must
establish that she had “a property interest for purposes of the Fifth Amendment.” Members of
the Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed. Cir. 2005) (citing
Conti v. United States, 291 F.3d 1334, 1339 (Fed. Cir. 2002); Wyatt, 271 F.3d at 1096 (“[O]nly
persons with a valid property interest at the time of the taking are entitled to compensation.”)).16
Second, Mrs. Caquelin must establish that the government’s actions “amounted to a compensable
taking of that property interest.” American Pelagic Fishing Co., L.P. v. United States, 379 F.3d
1363, 1372 (Fed. Cir. 2004).

ANALYSIS

The procedural posture of this case is unusual. The court is charged with developing a
factual record, accompanied by legal analysis, to enable the Federal Circuit to make an informed
decision regarding which analytical test should apply to temporary takings resulting from the
issuance of a NITU. To complete this task, the court will first comply with the court of appeals’
mandate to “discuss[] what facts invoke which of the Supreme Court’s standards,” Caquelin II,
697 Fed. Appx. at 1020, and develop a conceptual framework for takings analysis. After this
framework is established, the court will apply the factual record of this case to the Arkansas
Game multi-factor analysis as commanded. See id.

16
That Mrs. Caquelin has the requisite property interest in the pertinent segment of the
rail corridor is not disputed. See Caquelin I, 121 Fed. Cl. at 663-67.
8
 I. Takings Principles

Generally, the government can take property by two means: physically or by regulation.
Both types of takings can be further divided into two categories: categorical and non-categorical.
Categorical takings deprive the owners of all economically viable use of their property. Non-
categorical takings, on the other hand, deprive the owner of some amount of the economic use of
their land, either through physical invasion or onerous regulation. Takings can be either
permanent or temporary in duration.

A. Physical Takings

1. Categorical physical takings.

a. Permanent categorical physical takings.

The classic takings case – indeed, the salient exemplar of a taking under the Takings
Clause of the Fifth Amendment – involves a categorical physical taking that is permanent in
duration. This situation is also the most straightforward to analyze. In these cases, the
government physically and permanently seizes possession of the entirety of a landowner’s
property for public use. See, e.g., 28 U.S.C. § 1358 (relating to “proceedings to condemn real
estate for the use of the United States or its departments or agencies”). Physical possession of
land occurs when the “owner [is] deprived of valuable property rights, even [if] title ha[s] not
formally passed.” Caldwell v. United States, 391 F.3d at 1235 (citing United States v. Dow, 357
U.S. 17, 23 (1958)). In permanent categorical physical taking cases, the taking itself is often
uncontested – the litigation instead typically focuses on “what compensation [is] just.” Hendler
v. United States, 952 F.2d 1364, 1371 (Fed. Cir. 1991). It does “no[t] matter how weighty the
asserted ‘public interests’ involved” are – the government must pay compensation for a
“permanent physical occupation.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1015, 1028 (1992) (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419
(1982)).

b. Temporary categorical physical takings.

By contrast, a temporary categorical physical taking occurs when the government
physically seizes the entirety of a landowner’s property for public use, but returns it to the
original owner after a period of time. “[C]ompensation is mandated when a leasehold is taken
and the government occupies the property for its own purposes, even though that use is
temporary.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,
321-23 (2002) (citing United States v. General Motors Corp., 323 U.S. 373 (1945)). When a
physical taking is categorical, courts look to the temporal element to determine the measure of
just compensation under the Fifth Amendment, not whether a claim arose at all. See Ladd, 630
F.3d at 1025; Yuba Nat. Res., Inc. v. United States, 821 F.2d 638, 641-42 (1987).

For example, in Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), the
government seized plaintiff’s laundry facility during World War II to provide laundry and dry

9
cleaning services to the armed forces. The Supreme Court found the taking to be categorical, as
the government possessed the entirety of plaintiff’s property. Id. at 3. But it was ultimately
temporary, as the government returned the property after the war ended. Id. at 3-4. Thus, the
principal disagreement in Kimball Laundry was over how compensation should be calculated,
not whether a taking occurred. See id. at 6 (stating that “the question of compensation for the
temporary taking of petitioner’s land, plant, and equipment” was at issue.).

Similarly, United States v. Pewee Coal Co. also involved a temporary categorical taking
during World War II. 341 U.S. 114 (1951). In Pewee Coal, the government seized control of
various coal mines across the country in 1943 to circumvent a nationwide strike of miners. Id. at
115. A mine was returned to the original owners after five and one-half months of government
occupation, and the operators of the mine sued for compensation. Id. The Court found the
seizure of the mine to be “‘in as complete a sense as if the [g]overnment held full title and
ownership.’” Id. at 116 (citing United States v. United Mine Workers, 330 U.S. 258 (1947)).
Much like Kimball Laundry, the majority of the opinion was devoted to detailing how much
compensation the mine owners were entitled to for the taking period, rather than if a taking had
occurred at all. Id. at 116-17.

In sum, when the government physically seizes the entirety of a plaintiff’s property, it is a
categorical taking. Whether the government exercises permanent or temporary control is only
relevant for the calculation of compensation, not whether a taking occurred. See, e.g., General
Motors, 323 U.S. at 378 (“Governmental action short of acquisition of title or occupancy has
been held, if its effects are so complete as to deprive the owner of all or most of his interest . . . ,
to amount to a [T]aking.”).

2. Non-categorical physical takings.

Non-categorical physical takings also require proper compensation under the Takings
Clause of the Fifth Amendment. See, e.g., Loretto, 458 U.S. at 419. A non-categorical physical
taking occurs when the government occupies part of an owner’s property in some manner. The
physical invasion could be as small as a single cable box, see id., or as large as multiple wells,
see Hendler, 952 F.2d 1364, 1375-78. And like categorical physical takings, non-categorical
physical takings can be permanent or temporary in duration.

a. Permanent non-categorical physical takings.

Permanent, non-categorical physical takings are treated analytically the same as
categorical physical takings, except for the calculation of damages. The Supreme Court has
consistently drawn a bright line that any permanent physical invasion of property, no matter how
negligible, constitutes a taking. See Loretto, 458 U.S. at 436 (“Th[is] traditional rule also avoids
otherwise difficult line-drawing problems” with how much physical taking would be too much);
United States v. Causby, 328 U.S. 256, 261-65 (1946) (holding that repeated flights by
government planes through the plaintiffs’ airspace constituted a permanent non-categorical
physical taking); Hendler 952 F.2d at 1375-78 (finding government-drilled wells on a plaintiff’s
property constituted a permanent non-categorical physical taking that required compensation).

10
When physically, and permanently, taking a part of property, “the government does not simply
take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a
slice of every strand. . . . it effectively destroys each of these rights.” Loretto, 458 U.S. at 435
(emphasis in original).

The seminal case of this type in the Supreme Court is Causby. The plaintiffs in Causby
were farmers who sued the government for “frequent and regular flights of army and navy
aircraft over [plaintiffs’] land at low altitudes” that injured chickens and forced them to close the
farm. 328 U.S. at 258. Despite the fact that the “enjoyment and use of the land [was] not
completely destroyed,” the Court found a physical taking because “the use of the airspace
immediately above the land [] limit[ed] the utility of the land and cause[d] a diminution in its
value.” Id. at 262. And, “the fact that [the government planes] do[] not occupy [the land] in a
physical sense – by the erection of buildings and the like – is not material. As we have said, the
flight of airplanes [in this case] . . . is as much an appropriation of the use of the land as a more
conventional entry upon it.” Id. at 265. The Court in Causby effectively recognized the
existence of a non-categorical physical taking, i.e., one that does not completely deprive the
owner of all economic value, but is of a permanent nature.

In Loretto, Court formally recognized the principle that any permanent physical invasion
of property constitutes a taking, no matter how “minimal [the] economic impact on the owner.”
458 U.S. at 434-35. The Court in Loretto found a non-categorical permanent physical taking
from the imposition of cable boxes on the plaintiffs’ property – despite the small impact on the
property’s value. See id. at 434, 441-42. “Once the fact of occupation is shown, of course, a
court should consider the extent of the occupation as one relevant factor in determining the
compensation due. For that reason, moreover, there is less need to consider the extent of the
occupation in determining whether there is a taking in the first instance.” Id. at 437 (emphasis in
original).

Public easements being imposed on a landowner can also constitute permanent non-
categorical physical takings. See Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979)
(citing Causby, 328 U.S. at 265; Portsmouth Harbor Land & Hotel Co. v. United States, 260
U.S. 327 (1922)). In Kaiser Aetna, the Court held that “even if the [g]overnment physically
invades only an easement in property, it must nonetheless pay just compensation.” Id. at 180.
Similarly, in Nollan v. California Coastal Comm’n, 483 U.S. 825, 831 (1991), Justice Scalia
wrote, “[t]o 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.” Id. The right to
exclude others is “one of the most essential sticks in the bundle of rights that are commonly
characterized as property.” Id. (quoting Loretto, 458 U.S. at 433).

The Federal Circuit followed a similar path in recognizing permanent non-categorical
physical takings. See, e.g., Hendler, 952 F.2d at 1375-78. In Hendler, the Federal Circuit found
ground wells drilled by the government on the plaintiffs’ property to monitor pollution
constituted a permanent non-categorical physical taking. See 952 F.2d at 1375-77. The wells
were permanent because “[y]ears have passed since the [g]overnment installed the first wells . . .

11
[which are] 100 feet deep, lined with plastic and stainless steel, and surrounded by gravel and
cement.” Id. at 1376. The government’s order also authorized state and federal officials to have
continuing access to the property. Id. at 1374. Recognizing that on a long enough timeline,
every government action could be considered “temporary,”17 the court noted “[a]ll takings are
‘temporary,’ in the sense that the government can always change its mind at a later time.” Id. at
1376. The court drew a distinction between “governmental activities which involve an
occupancy that is transient and relatively inconsequential,” such as the “parked truck of the
lunchtime visitor,” and the more “permanent” nature of the embedded wells. Id. at 1376-77.
The court noted that “the concept of permanent physical occupation does not require that in
every instance the occupation be exclusive, or continuous and uninterrupted.” Id. at 1377.
Rather, indefiniteness means permanency. Id. at 1376.

The Federal Circuit provided additional guidance on distinguishing between temporary
and permanent non-categorical physical takings in Otay Mesa Prop., L.P. v. United States, 670
F.3d 1358, 1363 (Fed. Cir. 2012). The court concluded that takings are considered permanent
even if the landowner could take “specified action” to terminate the taking. 670 F.3d at 1368-69
(“In Loretto, was possible for the landowner to act in a manner so as to avoid the taking . . .
[because] a landlord could avoid the law’s requirements by ceasing to rent the building to
tenants, but [] this did not make the cable company’s invasion of the property not permanent.”)
(citing Loretto, 458 U.S. at 421, 438-39). In Otay Mesa, the government installed roads, a tented
structure, and underground sensors outside a previously-granted twenty-foot-wide easement on
property in California adjacent to the border with Mexico. 670 F.3d at 1360-61. The Federal
Circuit concluded that the taking by the government was permanent, even though the plaintiff in
Otay Mesa could have “decide[d] to develop the entirety of its property, thereby terminating the
sensor easement.” Id. at 1368. Arbitrary end dates are similarly unpersuasive in finding whether
an easement was temporary or permanent in nature. Id. at 1368. “[O]nly such activities [like]
abandonment of the easement by the Border Patrol . . . can end the easement.” Id.

b. Temporary non-categorical physical takings.

Ordinarily, temporary governmental action will give rise to a taking if permanent action
of the same character would constitute a taking. See Arkansas Game, 568 U.S. at 26-27, 32-34;
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304,
318-20 (1987). That is true for non-categorical as well as categorical physical takings, but
temporary non-categorical physical takings have to be differentiated from torts. See Ridge Line,
Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003). That line-drawing exercise can be
significant with government-induced flooding, see, e.g., Arkansas Game, 568 U.S. at 36,
although “[t]here is thus no solid grounding in precedent for setting flooding apart from all other
government intrusions on property,” id.

In this context, the Supreme Court employed six interrelated factors in Arkansas Game to
help determine if a temporary non-categorical physical taking occurred. 568 U.S. at 38-39.

17
This echoes the famous economist John Maynard Keynes, who famously stated “[i]n
the long run we are all dead.”
12
Those factors were “time,” “inten[t],” “forseeab[ility],” “character of the land,” “reasonable
investment-backed expectations,” and “severity of the interference.” Id. Arkansas Game
involved the flooding and destruction of forest land caused by the Army Corps of Engineers
through its operations of a dam during the period 1993 through 2000. Id. at 28. Those
operations deviated from planned water-release rates to benefit farmers and recreational users.
Id. at 27. Water was stored behind the Corps’ dam from September to December, but was
released above historical norms during the ensuing tree-growing season, id. at 28, saturating soil
and weakening root systems of trees to the point the trees were destroyed, id. at 30. The Corps
eventually ceased the deviations and returned to more normal water flows. Id. at 28. The Court
found that the flooding could constitute a taking. Id. at 38-40.

Some of the factors employed in Arkansas Game have origins in accepted takings
jurisprudence. For example, “inten[t]” seems to correlate with authorized government action,
although that may not always be factually the case. Additionally, “character of the land” and
“reasonable investment-backed expectations” have roots in regulatory takings jurisprudence,
although “character of the land,” Arkansas Game, 568 U.S. at 39 (emphasis added), is a reversal
from the focus in regulatory takings on “character of the government action,” Penn Central, 438
U.S. at 124 (emphasis added). Contrastingly, factors relating to tort concepts, i.e.,
“forseeab[ility]” and “severity of the interference” were employed in Arkansas Game.18 Finally,
“time” concerns the duration of the temporary interference.

On the other hand, if landowners suffered “an incidental or consequential injury . . .
caused, for example, by improvident conduct on the part of the government in managing its
property,” such landowners may have to look to tort law. See Ridge Line, 346 F.3d at 1356. In
applying the distinction between a foreseeable injury and a merely incidental injury, the Federal
Circuit requires plaintiffs to demonstrate that their injury was “the likely result of the
[government’s] act, not that the act was the likely cause of the injury.” Cary, 552 F.3d at 1377
(citing Moden, 404 F.3d at 1343) (emphasis added).19

18
In this respect, it is not necessary to show that the government specifically intended to
invade and injure the property. Rather, the standard allows recovery based on injuries that are
the direct, natural, predictable, or probable result of governmental action (i.e., foreseeable). See
Cary v. United States, 552 F.3d 1373, 1377 (Fed. Cir. 2009); see also Ridge Line, 346 F.3d at
1356. That is, a court can infer governmental action for an invasion of a property interest where
the plaintiff proves that “the government should have predicted or foreseen the resulting injury.”
Cary, 552 F.3d at 1377 (quoting Moden v. United States, 404 F.3d 1335, 1343 (Fed. Cir. 2005)).
19
Foreseeability can be critical in governmental flooding cases. See, e.g., Arkansas
Game, 568 U.S. at 23; Cary, 552 F.3d at 1373; Moden, 404 F.3d at 1335; Ridge Line, 346 F.3d at
1346; Cotton Land Co. v. United States, 109 Ct. Cl. 816 (1948). In governmental flooding cases,
liability can turn on whether the taking was predictable or whether an intervening cause broke
the chain of causation. See Arkansas Game & Fish Comm’n v. United States, 87 Fed. Cl. 594,
621-24 (2009), rev’d, 637 F.3d 1366 (Fed. Cir. 2011), rev’d & remanded, 568 U.S. 23, aff’d on
remand, 736 F.3d 1364 (Fed. Cir. 2013). Predictability focuses on the end-result, i.e., whether
the flooding should have been foreseen based on information available to the government at the
13
 B. Regulatory Takings

Justice Holmes articulated the basic standard for regulatory takings in Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 414-15 (1922): “while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking.” By this general formulation,
Justice Holmes endeavored to balance the legitimate, regulatory needs of the state with the
reasonable expectations of property owners. Id. at 413-15 (“Government hardly could go on if to
some extent values incident to property could not be diminished without paying for each such
change in the general law.”). Following Pennsylvania Coal, courts have struggled to define a
“set formula” for determining how much regulation is too much. See Lucas, 505 U.S. at 1015.
In doing so, courts have engaged in “essentially ad hoc, factual inquires.” Id. (citing Penn
Central, 438 U.S. at 124). Over the years, the Court has recognized two types of regulatory
takings – categorical and non-categorical. See id. at 1014-1020.

1. Categorical regulatory takings.

A categorical regulatory taking occurs when a “regulation denies all economically
beneficial or productive use of land . . . for the common good.” Lucas, 505 U.S. at 1015-16, 19
(citing Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), abrogated by Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528 (2005); Nollan, 483 U.S. at 834; Keystone Bituminous Coal Ass’n v.
DeBenedictis, 480 U.S. 470, 495 (1987); Hodel v. Virginia Surface Mining & Reclamation
Ass’n., 452 U.S. 264, 295-96 (1981)) (emphasis added). As the Court observed in Lucas, the
“total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a
physical appropriation.” Id. at 1017 (citations omitted). And like a categorical physical taking,
courts do not need to run through the “case-specific inquiry into the public interest advanced in
support of the restraint” to determine if the taking is compensable. Id. at 1015.

In Lucas, the regulation at issue prevented the development of certain coastal lots in
South Carolina. 505 U.S. at 1006-07. Plaintiff, owner of two coastal lots on a barrier island, was
prevented from building on or developing the two pieces of land. Id. After the South Carolina
trial court found that the land was effectively rendered economically valueless, the Supreme
Court held that the regulation would constitute a categorical regulatory taking. Id. at 1030-32.

Cases subsequent to Lucas have considered that a categorical regulatory taking is
“limited to the ‘extraordinary circumstance when no productive or economically beneficial use
of land is permitted.’” Tahoe-Sierra, 535 U.S. at 330 (quoting Lucas, 535 U.S. at 1017)
(emphasis in original); see also Lost Tree Village Corp. v. United States, 787 F.3d 1111, 1116
(Fed. Cir. 2015) (“[A] Lucas [categorical regulatory] taking is rare.”). Indeed, even a 93%

time of action. Id. at 621-23. Relatedly, intervening causes might “break the ‘chain of
causation’ between the governmental action and plaintiff’s injury.” Id. at 615, 623-24 (citing
Cary, 552 F.3d at 1380.

14
reduction in land value is not enough to meet the Lucas standard for a categorical regulatory
taking. Palazzolo v. Rhode Island, 533 U.S. 606, 616 (2001).

In Lost Tree, the Federal Circuit addressed noneconomic attributes. See Lost Tree, 787
F.3d at 1111. In that case, the Army Corps of Engineers denied a wetland fill permit to the
plaintiffs to build on waterfront property. Id. at 1114. The land’s value decreased by 99.4% due
to the government action. Id. The government argued that since there was some (even if token)
property value remaining (regardless of its source), the taking was not categorical and should
instead be analyzed through the Penn Central lens. Id. at 1116. The Federal Circuit disagreed,
holding that a purely nominal noneconomic residual value would not forestall a categorical
regulatory taking. Id. at 1117.

2. Non-categorical regulatory takings.

If a regulation does not “den[y] all economically beneficial or productive use of land,”
courts turn to a “complex of factors,” Palazzolo, 533 U.S. at 617, which together guide what is
“essentially [an] ad hoc, factual inquir[y],” Penn Central, 438 U.S. at 124. Penn Central listed
three factors to be considered in determining if a non-categorical taking occurred: (1) “[t]he
economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has
interfered with distinct investment backed expectations;” and (3) “the character of the
government action.” Id. “Each of these factors are considered in terms of the ‘parcel as a
whole.’” Seiber v. United States, 364 F.3d 1356, 1370 (Fed. Cir. 2004) (quoting Penn Central,
438 U.S. at 130-31). Although these factors provide “important guideposts . . . [, t]he Takings
Clause requires careful examination and weighing of all the relevant circumstances.” Palazzolo,
533 U.S. at 634, 636 (O’Connor, J., concurring); see also Tahoe–Sierra, 535 U.S. at 321
(Whether a taking has occurred “depends upon the particular circumstances of the case.”); Yee v.
City of Escondido, 503 U.S. 519, 523 (1992) (Regulatory takings claims “entail[ ] complex
factual assessments.”).

A non-categorical taking does not require a complete economic loss; rather, a partial but
substantial temporary taking may be compensable. Palazzolo, 533 U.S. at 617; Cienega
Gardens v. United States, 331 F.3d 1319, 1343, 1345 (Fed. Cir. 2003).

C. The July 3, 2013 NITU Issued Regarding Mrs. Caquelin’s Land

Mrs. Caquelin’s reversionary property interest was blocked by the STB’s imposition of
the NITU pending consideration of authorizing a trail for public use. See Stip. ¶¶ 12-14. “In the
bundle of rights we call property, one of the most valued is the right to sole and exclusive
possession – the right to exclude strangers, or for that matter friends, but especially the
government.” Hendler, 952 F.2d at 1374-75 (Fed. Cir. 1991) (citing Nollan, 483 U.S. at 831;
Loretto, 458 U.S. at 426) (internal citations omitted) (emphasis in original). Here, Mrs. Caquelin
was prevented from using her land for any purpose for the duration of the NITU. See Stip. Ex.
11 at STB000077-81. It makes no difference that the NITU did not ultimately result in trail use
of the railroad corridor. The court therefore determines that the NITU issued regarding Mrs.
Caquelin’s property represents a categorical physical taking, albeit a temporary one. In these

15
circumstances, the principles identified and applied in Pewee Coal, Kimball Laundry, and
General Motors would govern the takings analysis, and the Arkansas Game factors would be
inapplicable.

Nonetheless, as instructed by the Federal Circuit’s mandate, the court will proceed to
apply the factors identified in Arkansas Game to the factual record established by the trial held
on remand.

II. Multi-Factor Analysis

The court here is charged with an atypical task. The Federal Circuit specifically
instructed this court to determine “how the government-advanced multi-factor analysis applies in
this case, on the assumption that such an analysis is the governing standard.” Caquelin II, 697
Fed. Appx. at 1020. Thus, the court is to act in a supporting role – teeing up the problem for the
Federal Circuit to determine if en banc review is necessary to examine the Ladd precedent and
the earlier decisions by the Federal Circuit that provided antecedents for Ladd. As mandated, the
court will address the six factors from Arkansas Game in turn.

Factor 1: Time and Duration of the Taking

In Arkansas Game, the Supreme Court advised that “time is indeed a factor in
determining the existence vel non of a compensable taking.” Arkansas Game, 568 U.S. at 38-39
(citing Loretto, 458 U.S. at 435, n.12; Tahoe-Sierra, 535 U.S. at 342; National Bd. of YMCA v.
United States, 395 U.S. 85, 93 (1969) (finding the brief occupation of a building by the United
States military during a riot in Panama did not constitute a taking because the building was
already under attack)). Other temporary takings cases provide additional instruction as to how
time factors into the overall calculus. See First English, 482 U.S. at 318 (“‘[T]emporary’ takings
which, as here, deny a landowner all use of his property, are not different in kind from permanent
takings, for which the Constitution clearly requires compensation.”); Tahoe-Sierra, 535 U.S. at
322 (“[C]ompensation is mandated when a leasehold is taken and the government occupies the
property for its own purposes, even though that use is temporary.”); Yuba, 821 F.2d at 641-42
(“[T]emporary reversible takings should be analyzed in the same constitutional framework
applied to permanent irreversible takings.”).

For this case, the duration and time of the taking is undisputed and uncontroversial. The
taking began on the date the STB issued the NITU and blocked Mrs. Caquelin’s reversionary
interest in the property, i.e., on July 3, 2013, and ended when the NITU expired, i.e., on
December 30, 2013, for a total period of 180 days. See Stip. Ex. 11 at STB000077, 80-81. The
duration factors into the calculation of just compensation for Mrs. Caquelin, rather than into the
existence vel non of a taking. See First English, 482 U.S. at 318-19; Yuba, 821 F.2d at 641-42.
When the STB first issued the NITU and blocked Mrs. Caquelin’s reversionary interest in the
land at issue, it was indeterminate how long the taking would last. Stip. Ex. 11 at STB000080.
As a factual matter, near the end of the six-month period of the NITU, the Iowa Heritage Council
sought a 180-day extension to continue negotiations for a trial, Stip. Ex. 11 at STB000082, but
no extension was granted, see supra, at 6.

16
 The government, in its post-trial brief, emphasizes that the NITU “was in place for only
180 days,” and that “there was no extraordinary delay in the regulatory abandonment
proceeding.” Def.’s Br. at 46-47; see also id. at 41-50. But as discussed previously, the NITU
deprived Mrs. Caquelin of all use of the land at issue during the time it was in effect. See Stip.
Ex. 11 at STB000077; see also Caldwell, 391 F.3d at 1235 (The “triggering event for any takings
claim under the Trails Act occurs when the NITU is issued.”). It does not matter for the takings
analysis that the NITU was “only” in place for 180 days or that it was resolved without an
“extraordinary delay.” The time is relevant only to the calculation of damages. See Yuba, 821
F.2d at 641-42. What matters is on July 3, 2013, the government acted in a way that completely
deprived Mrs. Caquelin the use of her property for what was then an unspecified amount of time.
See Stip. Ex 11 at STB000077-81.

The court concludes that the time factor weighs in favor of finding a taking of Mrs.
Caquelin’s property. See Banks v. United States, 138 Fed. Cl. 141, 150 (2018) (citing Kimball
Laundry, 338 U.S. 1) (additional citations omitted); see also Balagna v. United States, 138 Fed.
Cl. 398, 403 (2018) (“[A]pplication of the Arkansas Game factors would not be likely to yield a
result different from that reached under controlling precedent.”) (internal citation omitted). Mrs.
Caquelin was not deprived of her land by the mere “parked truck of the lunchtime visitor.”
Hendler, 952 F.2d at 1376. Rather, the NITU denied Ms. Caquelin useable time to reclaim the
plot of land for the next planting season and also delayed her ability to harvest the valuable
timber on the segment.

Factor 2: Degree to Which the Invasion was Intended

The next factor the Supreme Court lists as “relevant to the takings inquiry,” is the “degree
to which the invasion is intended.” Arkansas Game, 568 U.S. at 39. This factor cannot be
disputed. The STB issued the NITU with intent to block Ms. Caquelin from any use of the
corridor segment while a potential trail use was being negotiated. See Caldwell, 391 F.3d at
1233-34 (“[G]overnment action . . . operates to . . . preclude the vesting of [the] reversionary
interest.”); Banks, 138 Fed. Cl. at 150 (“There was no inadvertence here.”). The rails-to-trails
program was specifically amended to prevent the railroad from abandoning the property and to
block the owner’s reversionary interest. See Preseault I, 494 U.S. at 8 (“By deeming interim
trail use to be like discontinuance rather than abandonment, . . . Congress prevented property
interests from reverting under state law.”) (citing S. Rep. No 98-1, p.9 (1983)). The very
purpose of the Act is to effectuate a taking to preserve the option for interim trail use and
railbanking. Id.

Factor 3: The Foreseeable Result of Authorized Government Action

In related vein, Arkansas Game referred to consideration of whether the revision was “the
foreseeable result of authorized government action.” Arkansas Game, 568 U.S. at 39 (citing
John Horstmann Co. v. United States, 257 U.S. 138, 146 (1921) (no takings liability when the
government action, an increase of water in a lake due to an irrigation project in Nevada, was not
foreseeable); Ridge Line, 346 F.3d at 1355-56 (requiring plaintiffs in a flooding case to establish

17
that “the effects [plaintiff] experienced were the predictable result of the government’s action”);
In re Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 325-26 (7th Cir. 1986)
(discussing how “[a]ccidental unintended injuries inflicted by governmental actors are treated as
torts, not takings.”)).

In Moden, 404 F.3d at 1343, the Federal Circuit held that “[a]n inverse condemnation
plaintiff must prove that the government should have predicted or foreseen the resulting injury,”
and also that there were no intervening causes that might relieve the government of liability. See
also Cary, 552 F.3d at 1379 (“Wherever there is an authorized action, the causation prong is
satisfied for any injury which is the direct, natural, and probable result of that action.”). At
bottom, this factor “merely inquires into whether the ‘invasion’ is the foreseeable result of
government action.” Banks, 138 Fed. Cl. at 150 (citing Arkansas Game, 568 U.S. at 39).

Here, the result of the NITU was foreseeable, as the very point of a NITU is to prevent a
landowner’s reversionary interest from taking effect so the trail negotiating process can take
place. See Preseault I, 494 U.S. at 7-9. No preternatural clairvoyance is needed in this case to
predict that the outcome of the government action is the deprivation of Mrs. Caquelin’s property
interest. See id.; see also Stip. Ex. 9 at STB000077-81. It does not matter that there was no
“physical presence of federal or third party actors.” Banks, 138 Fed. Cl. at 150. In the words of
Judge Bruggink, the fact that a NITU results in an owner’s losing the rights to use their own land
“requires no great foresight to anticipate.” Id. And, no intervening cause that might relieve the
government of liability is present here.20

Therefore, the court finds that the deprivation of property was a predictable and
foreseeable consequence of issuing the NITU. None of the predictability or foreseeability issues
present in inverse-condemnation flooding cases is present here.

Factor 4: Character of the Land at Issue

The fourth factor spelled out by the Supreme Court in Arkansas Game is the “character of
the land at issue.” 568 U.S. at 39 (citing Palazzolo, 533 U.S. at 618). In Arkansas Game, the
Court noted that the trial court “found the [a]rea had not been exposed to flooding comparable to
the 1990’s accumulations in any other time span either prior to or after the construction of the
[d]am.” Id. In the eyes of the Court, the lack of prior comparable flooding made it more likely
that a taking occurred – as the owners of the property had no forewarning of the potential for
floodwaters to inundate their land. See id.

While this factor is ostensibly similar to one from Penn Central, a key difference exists
between the test for non-categorical regulatory takings in Penn Central and the inquiry detailed
by the Supreme Court in Arkansas Game. In Penn Central, the focus is on the character of the

20
The government’s post-trial brief does not address this factor except for a cursory
acknowledgement. See Def.’s Br. at 34. Instead, the government attempts to shoehorn the non-
categorical regulatory taking test from Penn Central into the current analysis. See id. at 34-67.

18
governmental action. See Penn Central, 438 U.S. at 123. But in Arkansas Game, the Supreme
Court reverses the inquiry and directs courts to look to the “character of the land at issue.” See
Arkansas Game, 568 U.S. at 39 (emphasis added). When viewed in the government flooding
context, and in conjunction with the other Arkansas Game factors, this change in the focus of the
inquiry is cogent and instructive. The Penn Central factors are designed to determine if a non-
categorical regulatory taking occurred, Penn Central, 438 U.S. at 124, or, in the words of Mr.
Justice Holmes, whether a governmental regulation “goes too far,” Pennsylvania Coal, 260 U.S.
at 415. Arkansas Game, by contrast, points courts to determine whether a taking (as opposed to
a tort) occurred by looking at the nature of the underlying land, i.e., was it prone to repeated
flooding or especially susceptible to flooding. 568 U.S. at 39. This factor, much like factors 2
and 3, seems specifically identified to be deployed in a governmental flooding context.

The character of the land at issue in this case is largely undisputed. The plot of land here
is a 0.359 acre segment located adjacent to farmland in Franklin County, Iowa, measuring 313
linear feet in length from the location of the Milepost 191 marker extending to the southeastern
corner of the Caquelin property, and fifty feet in width extending from the westerly line of the
railroad corridor to the center line. Stip. ¶¶ 19-20 & Ex. 15 at US000288-89; see also Caquelin
I, 121 Fed. Cl. at 660-61. At the time of the taking, the bucolic segment of land was covered
with trees and residual ballast. Because of the ballast, the remainder of the plot was “a couple of
feet lower than the rail[bed].” See Tr. 71:18 to 72:7, 91:7 to 93:25 (testimony of Mr. Abbas).21
After a rain, the area could be briefly “wet” because of the slightly elevated railbed, but it is not
“wetland,” and reclamation of the corridor plus tiling could put the land into productive use. Tr.
71:18 to 72:7, 91:7 to 93:25 (Abbas). Dr. Kliebenstein, an expert who testified on behalf of Mrs.
Caquelin, emphasized that the CSR of the soil involved is 95, indicating the soil is extremely
productive for the growing of corn and other crops. Id. at 208:5-14, 218:24 to 222:1, 225:1-11,
277:7 to 278:4. The court therefore determines this factor also weighs in favor of finding a
taking.22

21
Mr. Abbas farms Mrs. Caquelin’s land under a leasehold. TR. 63:2-25.
22
“Whether the plaintiffs’ property was commercial, farm, or undeveloped land, the
United States has no right to simply block control of the surface . . . .” Banks, 138 Fed. Cl. at
150. In a case of this type, character of the land is only relevant for determining compensation,
rather than liability. See id. It is antagonistic to long-standing takings principles that a plaintiff
would be required to demonstrate the various productive characteristics of his or her land in
order to prove liability when faced with a categorical physical or regulatory taking. See, e.g.,
Loretto, 458 U.S. 434-35; Tahoe-Sierra, 535 U.S. at 323-24; Horne v. Department of
Agriculture, ___ U.S. ___, ___, 135 S. Ct. 2419, 2428-2430 (2015) (“[O]nce there is a taking, as
in the case of a physical appropriation, any payment from the Government in connection with
that action goes, at most, to the question of just compensation.”) (citing Suitum v. Tahoe Reg’l
Planning Agency, 520 U.S. 725, 747-48 (1997)). Indeed, the government would still be liable
for taking entirely unproductive land with little value – even if the compensation ultimately paid
was nominal. Correspondingly, the fact that the corridor segment is relatively small does not
affect liability, although it bears directly on compensation. See Loretto, 458 U.S. at 434-36.

19
 Factor 5: Reasonable Investment-Backed Expectations

The fifth factor identified by the Supreme Court is “the owner’s ‘reasonable investment-
backed expectations’ regarding the land’s use.” Arkansas Game, 568 U.S. at 39 (citing
Palazzolo, 533 U.S. at 618 (detailing the difference between a categorical regulatory taking
where “a regulation has deprived a landowner of ‘all economically beneficial use’ of the
property” and a non-categorical regulatory taking, when a regulation “defeated the reasonable
investment-backed expectations of the landowners to the extent that a taking has occurred.”)).
This factor has its roots in Penn Central, where the Court stated it was necessary to determine
the “extent to which the [governmental action] has interfered with distinct investment-backed
expectations” when examining a non-categorical regulatory taking. 438 U.S. at 124 (citation
omitted). And unlike the fourth factor of Arkansas Game, there is no reversal of the inquiry.

Other cases provide additional guidance regarding how the court should interpret
“reasonable investment-backed expectations.” See Ruckelhaus, 467 U.S. at 1006-07 (finding
that reasonable investment-backed expectations “must be more than a ‘unilateral expectation or
abstract need’”) (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 499 U.S. 155, 161
(1980)); see also Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed. Cir.
2018) (“The reasonable, investment-backed expectation analysis is designed to account for
property owners’ expectation that the regulatory regime in existence at the time of their
acquisition will remain in place, and that new, more restrictive legislation or regulations will not
be adopted.”); Cienega Gardens, 331 F.3d at1345-46 (“This factor also incorporates an objective
test – to support a claim for a regulatory taking, an investment-backed expectation must be
‘reasonable.’”); but see Palm Beach Isles Assoc. v. United States, 231 F.3d 1354, 1364 (Fed. Cir.
2000) (“[I]n accord with Lucas, and not inconsistent with any prior holdings of this court, when a
regulatory taking, properly determined to be ‘categorical,’ is found to have occurred, the
property owner is entitled to a recovery without regard to consideration of investment-backed
expectations. In such a case, ‘reasonable investment-backed expectations’ are not a proper part
of the analysis, just as they are not in physical takings cases.”) (emphasis added).

Dr. Kliebenstein testified that the land at issue could be reclaimed as high quality
farmland and put into very productive use. See Tr. 208:5-14; 218:24 to 222:1; 225:1-11; 277:7:7
to 278:4. According to Dr. Kliebenstein, the cost to reclaim the land would be approximately
$1,120, Tr. 249:1 to 250:6, with a potential “$3 and $3.50 return for every dollar of investment,”
Tr. 251:2 to 252:14.

In early July 2013, with the issuance of the NITU, Mrs. Caquelin was denied the
opportunity to prepare the land for productive use during the next planting season. See Tr. 802:8
to 807:13; Pl.’s Br. at 58-59. Mr. Abbas, who farms the land on a cash-rent basis, Tr. 72:15 to
73:9,23 has been active in enhancing the productivity of the land by tiling and otherwise

23
In 2012 and 2013, Mr. Abbas paid $18,000 to farm Mrs. Caquelin’s property. Stip. Ex.
14 at PLT00020. In 2014 and 2015, the rent was raised to $25,000. Id. at PLT000019. But rent
20
improving it, Tr. 73:21 to 76:9. He had discussed potential tiling of the corridor segment at issue
with the principal of a firm that had performed other reclamation work in the area. Tr. 80:14 to
81:8, 91:20 to 92:7. Plaintiff’s experts, Mr. Matthews and Dr. Kliebenstein, had also discussed
the cost of reclamation with this local contractor. See PX 1 (Matthews Expert Report) at 11; PX
2 (Kliebenstein Expert Report) at 13; Tr. 249:1 to 250:6, 322:2-23. Therefore, Mrs. Caquelin
contends that additional rental income should be considered in her reasonable investment-backed
expectations, if such a test were to apply. See Pl.’s Br. at 58-59.

The government, on the other hand, claims that due to the timing of the NITU and the
unreclaimed nature of the property, Mrs. Caquelin could not have any reasonable investment-
backed expectations. See Def.’s Br. at 29, 50-55; see also Tr. 811:1 to 813:14. Its argument
emphasizes the fact that the timing of the NITU precluded Mrs. Caquelin from gaining any farm
rental income from the unreclaimed plot in 2013, the year the NITU was issued. See Def.’s Br.
at 62-65. The government acknowledges that Mrs. Caquelin could have started the reclamation
process after the NITU expired in December 2013. See Tr. 801:15 to 802:3.24

The government further argues that Mrs. Caquelin did not have any reasonable
investment backed expectations, as she “acquired her interest in the adjacent farmland by
inheritance” with the railroad’s easement still present on the property, and she could not have
known when or if that easement would be abandoned. See Def.’s Br. at 50-55; see also Tr.
786:19 to 788:23. In addition, the government contends that Mrs. Caquelin “had no actual or
objectively reasonable expectations about the use of the 0.359-acre segment of the railroad
corridor at the time she acquired her interest in the adjacent property” or “at the time of the
government’s action.” Def.’s Br. at 51.

The presence of walnut trees on the segment complicates the equation of reasonable
investment-backed expectations. David Matthews, an expert appraiser, testified at trial that one
of the walnut trees by itself was worth “several thousand dollars” in his estimation. Tr. 365:6-
23, 368:3 to 370:8, 370:18 to 373:1. The court also observed the walnut trees on its site visit to
the property. Tr. 461:22-25 to 462:6, 462:24 to 463:6.25

was reduced back to $20,700 for 2016 and 2017. Id. at PLT000018. For 2018, the rent was
further reduced to $19,200. Id. at PLT00017.
24
Another lengthy argument made by the government is that the July 3, 2013 issuance
date of the NITU precluded the planting of soybeans on the corridor segment in 2013. See Def.’s
Br. at 61-65; see also Tr. at 547:19 to 548:5, 550:10 to 551:15, 555:8 to 557:13, 795:1 to 802:23.
This argument misses the point – it is irrelevant if Mrs. Caquelin would have been able to
reclaim the plot of land for productive use in 2013. What is relevant is that Mrs. Caquelin would
have been able to start the reclamation process for the next planting season. See Tr. 796:8-19.
As the court pointed out in closing argument, any “prudent landowner” would have used the time
from July 3rd onward to clear the property to “prepare it for planting the next season.” Id.
25
The segment at issue is wooded and fairly flat. Tr. 222:2 to 224:22. The larger trees
are growing at and near the fenceline that separated the railroad corridor from Mrs. Caqulin’s
21
 To the court, these trees signify an additional component of Mrs. Caquelin’s investment-
backed expectations independent of rental income from farming purposes. This undercuts the
government’s argument that STB’s “interference . . . had no measurable economic impact.” E.g.,
Def.’s Br. at 54. The government’s argument seems to be myopically focused on the economic
viability of growing crops on the taken property during 2013, after the July 3, 2013 NITU
issuance date. See id. at 62-67. Mr. Thien, an appraiser testifying as an expert on behalf of the
government, was asked to provide a value for the entirety of the parcels owned by Ms. Caquelin
and also to evaluate whether those was any loss of revenue or rent during the period of July 3
through December 30, 2013. Tr. 497:24 to 498:9. Despite the exhaustive exposition of Mr.
Thien’s methodology and his ultimate conclusion regarding the viability of farming the plot,
neither the government in its brief, nor Mr. Thien in his testimony, addressed the impact of the
walnut trees on the cost to reclaim Mrs. Caquelin’s property or on the value of the segment at
issue. See generally Def.’s Br. at 59-68; see also Tr. 641:12 to 644:24, 645:21 to 647:7, 647:18
to 649:2, 656:17 to 658:4. Correlatively, Mr. Thein did not consider the extent to which
reclamation would provide a positive recovery to Mrs. Caquelin through the enhanced value of
the segment.

Therefore, the court finds factor 5 cuts in favor of a taking. When the NITU was
imposed on Mrs. Caquelin’s property on July 3, 2013, it denied her the opportunity to perform
the economically viable action of reclaiming the land and putting it to productive agricultural
use. Moreover, the presence of the harvestable walnut trees on the property would have covered
the cost of reclamation, and this circumstance also bears on objectively reasonable investment-
backed expectations.

Factor 6: Severity of the Interference

For the last factor, the Supreme Court in Arkansas Game details that the “[s]everity of the
interference figures in the calculus as well.” 568 U.S. at 39 (citing Portsmouth Harbor, 260 U.S.
at 329-30 (“[W]hile a single act may not be enough, a continuance of them in sufficient number
and for a sufficient time may prove [a taking]. Every successive trespass adds to the force of the
evidence.”)). In Portsmouth Harbor, the Court held the repeated firing of military guns over the
plaintiff’s beach resort could constitute a taking if the firings were numerous enough. 260 U.S.
at 329-30. This fact pattern has a similarity to Causby, where repeated overflights of
governmental aircraft over a farm constituted a taking. 328 U.S. at 258, 265.

farmland to the west. Tr. 224:15-20. The larger trees included at least one walnut that could be
harvested as part of the reclamation work, and sold to a veneer company. Tr. 368:4-22, 461:22
to 462:23. The price obtainable for the large walnut, apart from the other walnuts and
hardwoods, Tr. 368:4 (conservatively, $2,000), would exceed the estimated reclamation cost. Tr.
82:5-25, 114:10 to 115:7, 249:3 to 250:6 (approximately $1,120); PX 1 at 11. Walnut trees are
prized for their high quality wood and “bring premium prices, and have since the 1700s, with
single trees bringing up to $20,000.” Craig Wallin, Growing Walnut Trees for Profit, Profitable
Plants Digest, https://www.profitableplantsdigest.com/growing-walnut-trees-for-profit/ (last
accessed Nov. 5, 2018).
22
 In a rail-to-trails case, however, this factor is less relevant. See Banks, 138 Fed. Cl. at
150. In rails-to-trails cases, the NITU acts as a complete interference to the plaintiff’s use and
enjoyment of their land. The segment here would have reverted to Mrs. Caquelin but for the
issuance of the NITU. She was unable to harvest the valuable walnut trees, prepare the land for
the next planting season, or exercise any other of her rights in the “bundle of sticks” that are
inherent to landownership. “None of the rails to trails case precedent[s] with respect to liability
has required an additional showing by landowners of what they would have done with the land if
they could access it.” Id.

For this factor, the court therefore finds the interference to be complete, i.e., as severe as
possible. The court also notes that this factor is redundant in a categorical takings analysis. If
the taking is categorical, see supra Part I, the taking of the property is complete and the duration
of the taking is only relevant regarding compensation. Consequently, any categorical taking
would also necessarily result in a 100% interference in the use of land, the severest possible
level.

III. SYNOPSIS

After addressing the Arkansas Game factors in the context of the facts of this case, the
court concludes that a taking occurred when the STB issued a NITU that blocked Mrs.
Caquelin’s reversionary interest in the land. The STB’s action delayed Mrs. Caquelin’s
reversion by 180 days. For that, the government owes just compensation, even if the amount is
underwhelming in the circumstances. See Loretto, 458 U.S. at 434-35; see also First Stip. (“The
parties have stipulated, based on the Court’s liability decision, that the principal and interest of
just compensation due to Plaintiffs Norma E. and Kenneth Caquelin is $900.00.”). The taking
was foreseeable, manifestly intended as a taking, and not mitigated by the character of the land
or Mrs. Caquelin’s reasonable investment-backed expectations. See also Banks, 138 Fed. Cl. at
150 (finding the same outcome with another NITU); Balagna, 138 Fed. Cl. at 403 (same).

Additionally, notwithstanding the foregoing takings analysis, if for whatever reason the
court of appeals should conclude that no taking occurred, a tort claim under the Federal Torts
Claim Act, 28 U.S.C. § 1346, would become applicable, but such a claim might actually
establish that a taking was more appropriate. That Act provides that:

“[D]istrict courts . . . shall have exclusive jurisdiction of civil actions or
claims against the United States . . . for injury or loss of property . . . caused
by the . . . wrongful act or omission of any employee of the [g]overnment
. . . , under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

At issue in a tort claim would be the precepts set out in Chapter 7 of the
Restatement (Second) of Torts (Am. Law Inst. 1965) (entitled “Invasions of the
Interest in the Exclusive Possession of Land and its Physical Condition (‘Trespass on

23
Land’).”). Under the Restatement, “a person who is in possession” is someone who
“has the right against all persons to immediate occupancy of land, if no other person is
in possession.” Id. § 157(c). With the abandonment by the railroad of its rail line, its
easement was extinguished and Mrs. Caquelin was entitled to occupancy of her
portion of the said corridor. “Liability for intentional intrusions on land” is covered by
Section 158 of the Restatement (heading, capitals omitted), excepting “[c]onduct
which would otherwise constitute a trespass if it is privileged.” Id., § 158 cmt. e. A
privilege “may be given by law because of the purpose for which the actor acts or
refrains from acting.” Id. The STB’s authorization to enter a NITU in anticipation of
trail use and rail-banking may constitute such a privilege.26 If so, the authorized
action presumptively would give rise to a taking.

CONCLUSION

For the reasons stated, the government is liable for a taking of plaintiff’s property on July
3, 2013, upon issuance of the NITU. In accord with the remand, the court concludes that final
judgment for the stipulated amount of principal and interest, $900.00, shall be entered under
RCFC 54(b) because there is no just reason for further delay. The clerk shall issue judgment
consistent with this disposition.

The court will address attorneys’ fees and expenses under the Uniform Relocation
Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4654 (c), after the judgment
entered under RCFC 54(b) has become final as defined in 28 U.S.C. § 2412(d)(2)(G). See RCFC
54(d)(2)(B)

It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

26
Restatement (Second) of Torts § 163 pertains to “intended intrusions causing no harm.”
Id. (heading, capitals omitted). As the Restatement explains, “[t]he wrong for which a remedy is
given under the rule stated in this Section consists of an interference with the possessor’s interest
in excluding others from the land.” Id., § 163 cmt. d.
24