[00:00:00] Speaker 03:
Okay, our final case this morning is number 22-1277, Barron's versus United States.

[00:00:06] Speaker 03:
Mr. Stewart.

[00:00:14] Speaker 04:
Thank you, Your Honor.

[00:00:15] Speaker 04:
May I please support?

[00:00:17] Speaker 04:
The CFC's opinion in this case that the easements to the railroad were broad enough in scope to allow rail banking and a hiking and biking trail is a major and significant error.

[00:00:30] Speaker 04:
In essence, the CFC followed Missouri's voluntary grant statute and authority from the Missouri Supreme Court to determine that the deeds were actually voluntary grants and were therefore easements and then turned around and completely ignored the voluntary grant statute and the precedent from Missouri Supreme Court when they got to the issue of the scope of the easements.

[00:00:55] Speaker 04:
There is simply no way to affirm

[00:00:58] Speaker 04:
the CSE's opinion in this case and still be obedient to that controlling authority, both the statute from Missouri, the Supreme Court of Missouri opinion in Brown v. Weir, the several opinions from this court with respect to the scope of the easements and what the landowners intended or did not intend to do 120 years ago, and basic property law.

[00:01:20] Speaker 04:
Here, the important thing is that under Missouri law, frankly since 1853,

[00:01:26] Speaker 04:
Missouri has had a voluntary grant statute which specifically says that grants to a railroad for the construction of the railroad are limited in scope to railroad purposes as a matter of law.

[00:01:40] Speaker 04:
And it's also under case law.

[00:01:42] Speaker 04:
So it's both under the statute, Section 388.2102 in Missouri, and also according to the precedent in Brown v. Weir and other cases.

[00:01:52] Speaker 01:
If we agree with you on all this, we don't need to get to the abandonment stuff, right?

[00:01:56] Speaker 01:
Correct, Your Honor.

[00:01:57] Speaker 01:
It's an alternative path to liability.

[00:02:00] Speaker 03:
So what the government is arguing, at least one of their arguments, is that this was served railroad purposes because it was preserving it for possible future railroad use.

[00:02:11] Speaker 03:
And the only discussion of that point that we were able to find in the authorities was the concurring opinion in Kressel.

[00:02:20] Speaker 03:
And I don't think either one of you cites any other authority on that subject.

[00:02:25] Speaker 03:
Am I right about that?

[00:02:26] Speaker 03:
That's not a question which has been decided by a majority opinion.

[00:02:34] Speaker 04:
I think it has, Your Honor, for this reason.

[00:02:36] Speaker 04:
And that is because what they are really saying is

[00:02:39] Speaker 04:
that a hiking and biking trail under the statute has to be an accommodation to the railroad because the statute says a construction, maintenance, or accommodation of the railroad.

[00:02:48] Speaker 04:
And so what they're really saying is that, first of all, it falls under that narrow interpretation of the statute that somehow a hiking and biking trail is somehow an accommodation to the railroad.

[00:03:01] Speaker 03:
Yeah, but I'm sort of assuming that that gets rejected and that their remaining argument is, well, it's an accommodation to the railroad because it preserves it for possible future railroad use.

[00:03:13] Speaker 03:
And it doesn't seem, I can't find a decision which specifically addresses that other than the concurrence of Pressell.

[00:03:23] Speaker 04:
I think, Your Honor, there are several opinions from this court, some authored by Your Honor, with respect to the fact that rail banking is not a railroad purpose.

[00:03:32] Speaker 04:
And it's the preservation, it's the speculative possibility of speculative restoration of the rail sometime in the future.

[00:03:41] Speaker 04:
That's not a railroad purpose.

[00:03:43] Speaker 04:
And there are several opinions all the way from Caldwell and Barkley and all of the other opinions that came from this court that said and confirmed exactly that.

[00:03:52] Speaker 04:
Here, what they're really trying to say is that it's not the preservation of the railroad.

[00:03:58] Speaker 04:
And the reason that is is that before we even get to the administration of the Trails Act, it has to be a petition for abandonment by the railroad

[00:04:09] Speaker 04:
In other words, they come in and they specifically say, we want to abandon this railroad corridor.

[00:04:14] Speaker 04:
And then they have to say that, and all the conditions have to be met before the STB will ever issue any kind of an order allowing them to abandon and allowing to start the whole rail banking process.

[00:04:27] Speaker 04:
Here what we have is a situation where it's not an accommodation of the railroad at all, but for the preservation of the railroad tracks

[00:04:36] Speaker 04:
It is an accommodation to the United States because that's what the Trails Act is all about.

[00:04:41] Speaker 04:
The Trails Act allows a trail operator to come in and use it in the interim for a hiking and biking trail even though it's been abandoned by the railroad, even though it's been approved for abandonment and all the conditions for abandonment have been met.

[00:04:56] Speaker 00:
And I assume that part of the relevance of what you just said is that the Missouri statute that goes back to 1853

[00:05:05] Speaker 00:
talks about accommodation of its railroad, the it being a particular company which would not extend to the possibility of the corridor being used for rail purposes in the future by somebody else.

[00:05:18] Speaker 04:
I think that's precisely it, Your Honor.

[00:05:20] Speaker 04:
In addition to the fact that if you look at the Brown v. Weir case carefully, it says construction, maintenance, and accommodation.

[00:05:27] Speaker 04:
And then in parentheses, it has operations, which means that this railroad ceased using it

[00:05:34] Speaker 04:
for a railroad when they petition for the abandonment process.

[00:05:38] Speaker 04:
And that's exactly what happened here.

[00:05:39] Speaker 04:
So it's for that reason and the reason that its railroad was stopped using it and some other railroad might come in and use it in the future.

[00:05:48] Speaker 04:
Rail banking is not a railroad purpose under a lot of authority from this court in particular.

[00:05:54] Speaker 00:
If this is true under the 1853 Missouri statute, is there an additional federal law issue

[00:06:03] Speaker 00:
to discuss about rail banking or no?

[00:06:07] Speaker 04:
Frankly, I don't think so, Your Honor.

[00:06:08] Speaker 04:
I think this court, I think the CFC erred as a matter of law because they didn't give the credence to the Missouri statute.

[00:06:17] Speaker 04:
They didn't give credence.

[00:06:19] Speaker 04:
It's the public policy of Missouri.

[00:06:21] Speaker 04:
If you read Brown v. Weir carefully, it specifically says that.

[00:06:26] Speaker 04:
What the statute does is it states the public policy in Missouri that even though a deed might look like a fee deed, even though it has a humbendum clause or something that might be utilized for some purpose to determine that would ordinarily be a fee deed without the statute.

[00:06:44] Speaker 00:
Right, so this is a restriction on what the parties can do even if they want to do it very much

[00:06:50] Speaker 00:
is if they do it by a dollar consideration, we don't care what your intent is.

[00:06:56] Speaker 00:
This is a restriction.

[00:06:57] Speaker 00:
Can I ask this question?

[00:06:58] Speaker 00:
So there's discussion either in all or some of the deeds here about, let's call it a three-band corridor, the middle one with the rails and then two, what, 100-foot, yes, 100-foot bands on the outside.

[00:07:14] Speaker 00:
The government's brief at least says that the outside bands are not in dispute here, only the middle.

[00:07:20] Speaker 04:
That's true, Your Honor, because those were used... How is that possible?

[00:07:24] Speaker 00:
I just want to understand.

[00:07:25] Speaker 04:
They were used for ingress and egress to construct the inner band.

[00:07:29] Speaker 04:
Right, but they're not in dispute because what?

[00:07:32] Speaker 04:
Because they reverted back to the adjacent landowners 120 years ago.

[00:07:34] Speaker 04:
They're already back.

[00:07:36] Speaker 04:
They were in essence a temporary taking of that land for the purpose of construction of the east end in the first place.

[00:07:43] Speaker 04:
But all of those deeds with their secondary and tertiary grants to the railroad all specifically say.

[00:07:48] Speaker 00:
Right, but only as the secondary and tertiary parts do they have specific language about use for rail.

[00:07:57] Speaker 00:
They specifically say that they're for the construction of the railroad.

[00:08:00] Speaker 00:
Right, but the grant for the middle doesn't really have language like that, which is what creates the need to then figure out whether Missouri law

[00:08:11] Speaker 00:
overrides what on its face might look like a feed deed.

[00:08:15] Speaker 00:
That's precisely right, Your Honor.

[00:08:19] Speaker 04:
It's also, I think it's pretty clear that these were for the construction of the railroad just as a matter of fact, as well as a matter of law, even though they don't specifically say for the right of way.

[00:08:29] Speaker 04:
If you look at the history of what the railroad did, this is one of the crazy things about what the CFC did here, is they ultimately ordered us, so the judge ultimately ordered us to go back and look at extrinsic evidence.

[00:08:41] Speaker 04:
and then basically ignored all of that extrinsic evidence with respect to the creation, the location, and the prior use of those easements, which also generally showed that they were specifically used for railroad purposes only.

[00:08:54] Speaker 04:
Here, what happened is, and this is one reason why our briefs talk about this at some length, there's no doubt that the voluntary grants conveyed an easement.

[00:09:06] Speaker 04:
An easement, by definition, as a matter of basic property law,

[00:09:10] Speaker 04:
has to be for a specific purpose.

[00:09:14] Speaker 04:
The CFC here never defined what that purpose was, if not for railroad purposes.

[00:09:19] Speaker 04:
What the CFC did was they said, we have an open-ended, unrestricted easement for any purpose.

[00:09:31] Speaker 04:
That's a judicial unicorn.

[00:09:32] Speaker 04:
That's contrary to what basic property law says, because an easement has to be for a specific purpose.

[00:09:40] Speaker 04:
And here, this court has spoken on a number of occasions, as have the Missouri courts, that it cannot be a general open-ended easement for any purpose.

[00:09:51] Speaker 04:
And so what you really have here is a situation where the CSC said, well, it looks like a fee deed, thereby negating the whole concept of Missouri's public policy with respect to the voluntary grant statute.

[00:10:08] Speaker 04:
But they said, I'm stuck with the fact that it's an easement, but it's an easement that is for unlimited purposes, which is also contrary to law.

[00:10:18] Speaker 04:
In other words, the CFC was wrong on both counts, on both avenues of that investigation.

[00:10:25] Speaker 04:
The CFC ended up doing here what no Missouri court has ever done, and that is allow an easement to a railroad to be used for non-railroad purposes.

[00:10:36] Speaker 04:
Never done before.

[00:10:38] Speaker 00:
Unless this idea of rail banking would constitute railroad purposes, which is not actually the language, right, of 1853, right, of the 1853 statute.

[00:10:50] Speaker 04:
No, the statute says it would be used for such purpose, which is the construction, the operation, the accommodation, which I think is the operation of the railroad, the maintenance of the railroad.

[00:11:00] Speaker 00:
It's railroad.

[00:11:05] Speaker 00:
that's referred to in section one of that statute.

[00:11:07] Speaker 00:
The corporation formed, not for future companies engaged in rail business.

[00:11:14] Speaker 00:
Railroad is a squirrely word.

[00:11:16] Speaker 04:
It's a squirrely word, but that's how it's used in this statute.

[00:11:20] Speaker 04:
And it goes back to what Judge Dyke mentioned at the very beginning.

[00:11:23] Speaker 04:
If you look at the history of the precedent from this court, all the way back to pre-1902, when they say it is

[00:11:32] Speaker 04:
unfathomable or beyond possibility that any grantor 120 years ago would have ever envisioned or intended, as this Court tried to focus on, that they would use a grant to a railroad for a hiking and biking trip.

[00:11:54] Speaker 04:
That's, in this Court, several times.

[00:11:56] Speaker 04:
In fact, in the Toe's opinion, which was eight years after

[00:12:01] Speaker 04:
They said it's beyond caval that a grantor 120 years ago would have anticipated or intended that a grant to a railroad to use it for their railroad purposes would then be converted to a hike and biking trip.

[00:12:15] Speaker 00:
I think I'm probably repeating something I said.

[00:12:20] Speaker 00:
Why does intent matter in a case like this where you would think that the deed itself is the best evidence of intent?

[00:12:30] Speaker 00:
A relevant part of the deed is looks like a fee grant.

[00:12:35] Speaker 00:
And I thought your answer was intent doesn't matter here.

[00:12:38] Speaker 00:
Missouri law says this is the extent of it regardless of intent.

[00:12:43] Speaker 00:
So whatever we said about what somebody in 1880 would have intended doesn't really seem to be the question here.

[00:12:52] Speaker 04:
It's not.

[00:12:53] Speaker 04:
And the CRC should not have even gone down that path.

[00:12:56] Speaker 04:
The CFC went to great length to look at the wording of the deed, the hubbinden flaws in the grant clause, to try to ascertain what the grantors intended with respect to the scope, even though that has been specifically preempted by Missouri law based on the voluntary grant statute.

[00:13:12] Speaker 03:
So suppose we had a situation which the railroad said, well, for the moment, we're going to discontinue operations on this line.

[00:13:19] Speaker 03:
But 10, 15 years from now, we hope to be able to start again with different economic conditions.

[00:13:25] Speaker 03:
And in the meantime, we're going to let people use it for hiking.

[00:13:29] Speaker 04:
That's a case that I'm waiting to bring to this Court, Your Honor, that there is actually a separate body of law for discontinuance as opposed to abandonment.

[00:13:38] Speaker 04:
Here, we don't have that situation because it's abandoned.

[00:13:41] Speaker 00:
Would that railroad be going to the surface transportation board and seeking abandonment or...?

[00:13:47] Speaker 04:
They would be seeking discontinuance.

[00:13:49] Speaker 00:
Which wouldn't...?

[00:13:50] Speaker 04:
That would trigger a whole other set of regulations and that if they then tried to use it for hiking and biking trail, I'll be right back here then.

[00:13:58] Speaker 04:
I'm into my rebuttal time.

[00:14:00] Speaker 03:
We'll give you two minutes.

[00:14:04] Speaker 03:
Mr. Mandelbaum.

[00:14:06] Speaker 03:
Or no, Mr. Smelson.

[00:14:09] Speaker 02:
Yes, good afternoon, Your Honors.

[00:14:10] Speaker 02:
I may please the Court, John Smeltzer for the United States.

[00:14:13] Speaker 02:
Your Honors, the Court of Federal Claims correctly held that the federal rail banking in this case will not and could not cause a taking from the plaintiffs, and this is true for three reasons.

[00:14:23] Speaker 02:
There are three parts to our arguments.

[00:14:25] Speaker 02:
We've covered a lot of ground here, but let me just lay out the three parts.

[00:14:28] Speaker 02:
The first part is the deeds themselves, they're unrestricted land grants to the railroads.

[00:14:34] Speaker 02:
and they're subject only to the terms of that voluntary grant statute.

[00:14:38] Speaker 02:
So the first point to your point, Judge Toronto, the intent matters only if there's a restriction in the deed, right?

[00:14:45] Speaker 02:
And so these deeds are unrestricted, so it doesn't matter.

[00:14:48] Speaker 02:
What matters here is the line of the statute.

[00:14:51] Speaker 02:
The second part of our argument is under the statute, right, lands that are granted by voluntary grant can be put to any use that aids in the accommodation of the railroad.

[00:15:03] Speaker 00:
This is a sticking point for me of the railroad meaning the company.

[00:15:10] Speaker 02:
Right.

[00:15:10] Speaker 02:
And you're focusing on the term it.

[00:15:12] Speaker 02:
And we would submit, Your Honor, that it should not, that one word should not be so narrowly construed to preclude a conveyance to another railroad, right?

[00:15:22] Speaker 02:
If that railroad determined that it couldn't or didn't have the means to run a railroad, it's certainly under

[00:15:29] Speaker 02:
United States and Missouri law can alienate its interests in its lands to another railroad or another entity.

[00:15:35] Speaker 00:
And this corridor went through several... This corridor was sold several times, right?

[00:15:39] Speaker 02:
The original railroad is four railroads behind, right?

[00:15:42] Speaker 02:
And so we would submit that the term it has to be read under the understanding, right, that railroad rights can be conveyed.

[00:15:50] Speaker 02:
And if they can be conveyed, then it doesn't mean that particular railroad.

[00:15:54] Speaker 02:
It means railroad purposes that the state of Missouri is trying to promote in general.

[00:15:59] Speaker 03:
OK, so that's not the slightest evidence in this record that any railroad was interested in resuming service over this line.

[00:16:06] Speaker 02:
At this point, Your Honor, those railroads were in the future either.

[00:16:10] Speaker 02:
Right, but the purpose of the federal law is to maintain the corridor for future railroad use.

[00:16:17] Speaker 02:
That is the reason for the Trails Act.

[00:16:18] Speaker 02:
That is the reason for promoting

[00:16:20] Speaker 02:
this interim use.

[00:16:22] Speaker 02:
That interim use preserves it within the federal rail system, right, for possible reactivation for potential rail use.

[00:16:30] Speaker 02:
So we submit that is within the broad language of the Missouri statute, aiding in the accommodation of railroads, because it leaves, and this was an important, if you look in the

[00:16:40] Speaker 02:
The statute, the Trails Act, the background, it specifically states that Congress was concerned about the loss of these corridors, right?

[00:16:48] Speaker 02:
Because today's economic circumstances were not sufficient for certain railroads to believe that they could continue running.

[00:16:56] Speaker 02:
And so those railroads were willing to abandon their interests, right?

[00:16:59] Speaker 02:
Because they didn't want to maintain or continue the obligation of maintaining the corridor.

[00:17:05] Speaker 02:
paying the taxes on it and bearing liability for the use of the corridor.

[00:17:09] Speaker 02:
But Congress was concerned that, look, once these rail corridors are gone, we're not going to have them anymore.

[00:17:14] Speaker 03:
So the specific... So the easement here was transferred to this hiking trail organization, right?

[00:17:19] Speaker 02:
It was transferred to the state of Missouri, Your Honor.

[00:17:21] Speaker 03:
To the state of Missouri.

[00:17:23] Speaker 02:
But let me step back.

[00:17:26] Speaker 02:
There's a trail interim use agreement between the railroad and the state of Missouri.

[00:17:30] Speaker 02:
The actual

[00:17:32] Speaker 02:
The law, the regulations don't require... Who owns the amusement now?

[00:17:37] Speaker 02:
That's what I'm saying.

[00:17:38] Speaker 02:
It's not in the record.

[00:17:39] Speaker 02:
The federal law, the statute, and the regulations don't require an actual transfer or any particular form of transfer.

[00:17:48] Speaker 02:
Sometimes the railroads do fully transfer all their property rights, but there's nothing in the statute, the regulation, that says the railroad has to.

[00:17:55] Speaker 02:
I mean, that's the point, and it's not in this particular record.

[00:17:58] Speaker 02:
as to the ownership of the right.

[00:18:00] Speaker 02:
What the statute is concerned with is the assumption of liability for the use and liability for maintaining and paying taxes in the interim period, right?

[00:18:12] Speaker 02:
And so as long as the Interim Use Agreement provides for that... What does the statute say about future railroad use?

[00:18:19] Speaker 03:
How does the easement come back into being?

[00:18:22] Speaker 02:
Easements have been reactivated, or I'm sorry, corridors that have been

[00:18:26] Speaker 02:
put into rail banking have been reactivated for rail use.

[00:18:29] Speaker 02:
And it happens when the railroad that agreed to the interim use agreement comes back and says, now I want to run a railroad, or another railroad.

[00:18:38] Speaker 03:
Do they keep the Eastman, or do they transfer it?

[00:18:40] Speaker 02:
If it's transferred, then the interim use agreement with the trail sponsor, as a matter of federal law, provides that it is subject to reactivation for rail use.

[00:18:52] Speaker 03:
Which means re-transferring the Eastman.

[00:18:54] Speaker 02:
which means that the trail sponsor, if somebody wants it for rail use, can't complain.

[00:18:59] Speaker 02:
The trail sponsor can't say, this is a trail now.

[00:19:02] Speaker 02:
It's a trail permanent, because it's not.

[00:19:05] Speaker 02:
The purpose of the federal law is to allow an interim use that's going to maintain this corridor for future rail use.

[00:19:12] Speaker 02:
That's the purpose of the statute.

[00:19:16] Speaker 02:
And so the third part of our argument, Your Honor, is the first part, D is unrestricted, so they don't control.

[00:19:23] Speaker 02:
The Missouri statute does control the scope.

[00:19:26] Speaker 02:
We don't need to look to extrinsic evidence or other things.

[00:19:28] Speaker 02:
We look to the plain language of aids in the accommodation of.

[00:19:31] Speaker 03:
So if you're right, how is it that you lost any of these cases?

[00:19:36] Speaker 02:
I was trying to get to my third point.

[00:19:37] Speaker 02:
We've lost a number of these cases because we have restricted deeds, right, Your Honor?

[00:19:42] Speaker 02:
There's a lot of cases where you don't have an unrestricted deed under a statute with broad language under a state law that promotes the public use of railways.

[00:19:52] Speaker 02:
The Tay's case and the Purcell case were both cases where the restrictions were specifically within the deeds.

[00:19:59] Speaker 02:
And so if you have a grantor saying, I'm giving this to you, railroad company, only so long as it's used for a railroad, then you do look to the purpose of the grant.

[00:20:09] Speaker 02:
That's not what we have here.

[00:20:11] Speaker 02:
We have unrestricted, essentially fee grants.

[00:20:14] Speaker 00:
And do you happen to recall what the language in Purcell and the other ones that you just referred to

[00:20:22] Speaker 00:
really confined to current use as for rail traffic, or was it broad enough to encompass your notion of

[00:20:34] Speaker 00:
preserving the court for a possible future.

[00:20:37] Speaker 02:
The deeds in both cases specifically referred to language such as for the railroad, for the railroad purposes, or so long as.

[00:20:44] Speaker 03:
Can you point me to where in Press Off this language appears?

[00:20:47] Speaker 03:
Because I thought the language and the deed in Press Off was broader than that.

[00:20:53] Speaker 03:
It had the word accommodation.

[00:20:55] Speaker 03:
That's my recollection.

[00:20:58] Speaker 03:
I may be wrong.

[00:20:59] Speaker 03:
Right.

[00:20:59] Speaker 03:
The other thing.

[00:21:00] Speaker 02:
Where's the language?

[00:21:05] Speaker 02:
Your Honor, I don't have it highlighted in my copy of the case.

[00:21:12] Speaker 02:
I think you cited it in the brief.

[00:21:16] Speaker 02:
I mean, I do know that in the court, in analyzing, it talks about the bargain with the grantor, right?

[00:21:23] Speaker 02:
And made a determination under Vermont law that the bargain of the grantor wasn't being fulfilled if it's not being used for a railroad.

[00:21:31] Speaker 02:
So, and again, this is just the plurality, right, in Perseaux.

[00:21:35] Speaker 02:
There were four judges that talked about scope and looked at this issue.

[00:21:41] Speaker 02:
Six judges found, you know, taking in Perseaux by abandonment because in that case there was a finding by the Court of Federal Crimes that there was an abandonment under Vermont law before the Trails Act was enacted.

[00:21:55] Speaker 02:
It's an interesting and, I think, outlying case in that sense, right, with respect to the abandonment because that was an abandonment that was found under state law before you even get into Trails Act or even any consideration of interim use.

[00:22:10] Speaker 02:
And so for sure, the analysis of the four judges in the plurality that addressed the scope issue was focused on the idea that there was a bargain in the terms of the grant.

[00:22:23] Speaker 02:
And I do know, Your Honor, and we cite it in the brief, that when the court said that, the court said that a different result may pertain if you have different kinds of easements or if you have a grant under a particular statute.

[00:22:36] Speaker 02:
We cite that in the brief.

[00:22:38] Speaker 02:
That's the language from Purcell.

[00:22:39] Speaker 02:
acknowledging that if you have a special statute that governs the scope of the deed, that's different than if you're dealing with just the grant.

[00:22:48] Speaker 02:
Here, as I said, all you have is the Missouri statute, right?

[00:22:52] Speaker 01:
And so all it comes down to is statutory interpretation, and for you to prevail, you have to convince us that

[00:23:01] Speaker 01:
Missouri State law would read accommodation broadly enough to include rail vacuums.

[00:23:06] Speaker 02:
Right.

[00:23:06] Speaker 02:
And as we cite in the brief, if you look at dictionaries at the time, the term accommodation... Do you cite any cases?

[00:23:13] Speaker 01:
Because it seems to me that all the cases... Well, it was a case.

[00:23:16] Speaker 01:
Right.

[00:23:17] Speaker 01:
I'm sorry.

[00:23:17] Speaker 01:
All the cases that discuss this seem to go the other way.

[00:23:22] Speaker 02:
not discuss the term accommodation, Your Honor.

[00:23:24] Speaker 02:
We cited a case that defined accommodation and then cited two definitions of accommodation, and the definition said, you know, accommodation is a favor or a convenience, and it's, you know, it's broadly construed.

[00:23:36] Speaker 01:
Construing accommodation in this statute?

[00:23:40] Speaker 02:
Yeah.

[00:23:40] Speaker 01:
So, I mean, I don't know how that helps us.

[00:23:44] Speaker 01:
What helps us is state law cases construing the statute and getting a general understanding of what this statute means under Missouri state law, and all of them seem to have a more narrower reading of that statute, even if they didn't expressly talk about accommodation than you are putting forth.

[00:24:06] Speaker 02:
You're assuming cases that aren't there, Your Honor.

[00:24:08] Speaker 01:
The other cases in Missouri that... Well, you're assuming cases that aren't there either.

[00:24:13] Speaker 01:
Your Honor, I mean, you don't have a case... Brown v. Weir.

[00:24:15] Speaker 01:
...specifically constring this statute... Yes, Brown v. Weir.

[00:24:18] Speaker 01:
...in your fair.

[00:24:19] Speaker 02:
Brown v. Weir.

[00:24:19] Speaker 02:
Let's talk about Brown v. Weir, because that's the case that was identified by the plaintiffs as being significant.

[00:24:25] Speaker 02:
152 Southwest Second, the court tells you what the purpose of the statute is.

[00:24:31] Speaker 02:
It says it was to protect the landowners, quote, if the railroad was never constructed,

[00:24:36] Speaker 02:
and also if the railroad company abandoned land acquired for its use.

[00:24:40] Speaker 02:
The key phrase there is abandoned land acquired for its use.

[00:24:44] Speaker 02:
They don't say stop running the railroad, decided not to use it for active rail operations.

[00:24:52] Speaker 02:
They say abandoned land.

[00:24:53] Speaker 02:
We submit that's consistent with the broad interpretation of the statute.

[00:24:57] Speaker 02:
Going on in that decision at pages 654 through 55, the Missouri Supreme Court specifically notes that the Missouri Constitution since 1875 had declared railroads to be public highways, right?

[00:25:12] Speaker 02:
And then it says, if a highway, I'm sorry, quote, if a highway is taken wholly off one man's property and such highway is later vacated, the use of the land goes back to the original owner grantees, unquote.

[00:25:24] Speaker 02:
So the idea of the statute is, the purpose of the statute, it's when the railroad is completely done with the use, right?

[00:25:31] Speaker 02:
When it's done with for any use that aids in the accommodation of railroads, it goes back to the grantors.

[00:25:37] Speaker 02:
The idea of the statute is to make sure that once we're done with the public use that's being allowed by this statute, that it's going to go back to somebody because we don't want these strips and gores, you know, hanging out there where nobody's maintaining it.

[00:25:51] Speaker 03:
It doesn't indicate that this railroad or any other railroad

[00:25:54] Speaker 03:
plan to go back to railroad use here.

[00:25:57] Speaker 01:
But that's the purpose of the federal law.

[00:25:58] Speaker 01:
You just split from railroad to public use in that last phrase.

[00:26:02] Speaker 01:
And that seems to be the problem here.

[00:26:05] Speaker 01:
I mean, this statute grants the easement for railroad purposes, not public use purposes.

[00:26:11] Speaker 02:
It doesn't say railroad purposes, Your Honor.

[00:26:13] Speaker 02:
And I want to be clear.

[00:26:15] Speaker 02:
I think broadly it's for railroad uses because it says aid in the accommodation of railroads.

[00:26:20] Speaker 02:
But I also want to just

[00:26:22] Speaker 02:
We have to, Your Honor, that the Missouri Constitution since 1875 has said that railroads are public highways.

[00:26:31] Speaker 02:
And so there is certainly a public use component to a grant, a voluntary grant, to a railroad.

[00:26:37] Speaker 02:
Any grantor, to come back to this point, the grantor's intent might matter.

[00:26:41] Speaker 02:
But any grantor in 1901, when these grants were issued, that's providing a voluntary grant under a statute that's broadly worded

[00:26:49] Speaker 02:
under the Missouri Constitution that says these are public highways is going to expect and have an expectation that there's going to be public use of this rail line that's consistent with rail use.

[00:27:01] Speaker 02:
And that's all we're saying is it's preserved through the rail banking specifically for rail use and the interim use, right?

[00:27:08] Speaker 02:
The interim use

[00:27:09] Speaker 02:
is consistent with what the public would expect the rail use to be useful.

[00:27:14] Speaker 02:
Let me give you an example.

[00:27:17] Speaker 02:
The plaintiffs and their amici, Professor Eli, said that walking on a railway is a trespass.

[00:27:25] Speaker 02:
And so that public use couldn't possibly have been contemplated or could be part of the scope of an easement.

[00:27:30] Speaker 02:
But we cited to the actual Missouri law that's longstanding since the early 1900s

[00:27:36] Speaker 02:
That's Missouri Statute Section 389.650, subsection 6.

[00:27:40] Speaker 02:
That says, quote, if any person not connected with or employed upon the railroad shall walk upon the track or tracks thereof, unquote, and then quote again, such person shall be deemed to have committed a trespass in so walking upon such track in any action brought by him on account of such harm against the corporation owning such railroad, but not otherwise.

[00:28:02] Speaker 02:
but not otherwise, Your Honors.

[00:28:04] Speaker 02:
The expectation from this statute is people publicly walking on the rail with the railroad's consent, where the railroad hasn't said you can't be on this line, and they're not suing the railroad for any harm.

[00:28:15] Speaker 02:
The expectation is the public rail line is going to be used for people walking on it, right?

[00:28:19] Speaker 02:
That's all that's happening in the interim use.

[00:28:22] Speaker 02:
There's people walking on the rail line, this public highway under Missouri law, right?

[00:28:27] Speaker 02:
And it's being preserved specifically for under federal law and under the terms of rail banking, the specific terms of the interim use agreement.

[00:28:37] Speaker 02:
for future rail use, which is a use that aids in the accommodation of the railroads.

[00:28:43] Speaker 02:
Nothing has been taken from the landowners who gave a voluntary grant for the railroads to have and hold forever all rights, privileges, immunities, and appurtenances

[00:28:57] Speaker 02:
You know, as long as it's subject to the controlling statute, which again, not a question of intent, but this is not an unfairness concern for the grantors.

[00:29:09] Speaker 02:
They'll get the land back, right, for their use if and when the railroad abandons.

[00:29:15] Speaker 00:
When we go to flying railroads.

[00:29:17] Speaker 02:
We're going to go to very fast railroads first, Your Honor, and we may need these lines.

[00:29:25] Speaker 03:
Before you sit down, one question.

[00:29:26] Speaker 03:
I do not understand the Court of Federal Claims ruling on abandonment, the abandonment claim.

[00:29:33] Speaker 03:
As I understand it, there was an abandonment claim in the complaint, and the Court of Federal Claims said

[00:29:41] Speaker 03:
No, no, you forfeited that claim because you didn't make a timely motion for summary judgment.

[00:29:47] Speaker 03:
They may have forfeited the right to make a motion for summary judgment, but how does that take the claim out of the case?

[00:29:53] Speaker 03:
It just doesn't make any sense.

[00:29:55] Speaker 02:
I think that question is the framing of the complaint is better asked from Mr. Stewart, because I don't remember.

[00:30:01] Speaker 02:
My understanding is the complaint said it was a taking, and these were two alternative theories that were argued in the summary judgment.

[00:30:06] Speaker 03:
If I'm right that they were asserting an abandonment claim, the fact that they may have

[00:30:10] Speaker 03:
pass the time for summary judgment doesn't mean that you win, it just means they can't file a motion for summary judgment.

[00:30:21] Speaker 02:
My understanding is the court treated it as two parts of their claim said that they were to file summary judgment on this point.

[00:30:30] Speaker 02:
They didn't file summary judgment.

[00:30:31] Speaker 03:
No, they didn't say you had to file summary judgment.

[00:30:33] Speaker 03:
They said if you were going to file, you had to do it by such and such date.

[00:30:36] Speaker 03:
Apparently, at least the court found they didn't comply with the date and then treated that as though they lose.

[00:30:42] Speaker 03:
I don't understand that.

[00:30:43] Speaker 03:
You may lose the right to move for summary judgment.

[00:30:45] Speaker 03:
You don't lose the case.

[00:30:49] Speaker 02:
It's a fair point.

[00:30:51] Speaker 02:
But they weren't arguing that there was disputed facts with respect to their claim.

[00:30:54] Speaker 02:
They were arguing that it was a point of law, and they didn't bring it.

[00:30:58] Speaker 02:
And they haven't briefed in their briefs that they need to go back and prove up facts.

[00:31:02] Speaker 02:
So I think with respect to missing the court's deadline, the good cause standard and the abuse of discretion still applies.

[00:31:10] Speaker 02:
And we would also point out the fact that it's an alternative argument.

[00:31:14] Speaker 02:
And it makes no sense as an alternative argument, because if we prevail on the first part and the rail line is broad enough to accommodate this use, the undisputed facts are is all you're doing is changing from one permitted use to another.

[00:31:27] Speaker 02:
And that can't possibly be evidence of abandonment.

[00:31:30] Speaker 03:
OK, well, thank you.

[00:31:31] Speaker 03:
We'll hear from Mr. Stewart in a couple of minutes.

[00:31:38] Speaker 04:
Thank you, Your Honor.

[00:31:40] Speaker 04:
Frankly, I'm not sure I understand almost anything the government said there.

[00:31:45] Speaker 04:
If you look at Brown v. Weir, first of all, it specifically says that it is apparent that the legislature intended positively to interfere in the dealings of a railroad company with the landowners and to protect the latter if the railroad was never constructed, and also if the railroad company abandoned land acquired for its use.

[00:32:05] Speaker 04:
That's exactly what happened here.

[00:32:08] Speaker 04:
They're basically, I thought they were going to resurrect arguments all the way back to preso two.

[00:32:12] Speaker 04:
They actually resurrected an argument all the way back to preso one.

[00:32:18] Speaker 04:
When they again are reiterating that rail banking under the Trails Act is purportedly a railroad purpose.

[00:32:25] Speaker 04:
Okay, here they're casting it in terms of accommodation to the railroad.

[00:32:30] Speaker 04:
When the Missouri Supreme Court specifically says that accommodation to the railroad means railroad operations which have ceased.

[00:32:37] Speaker 04:
And it's an argument they've lost since 1990, and the government just raised it again.

[00:32:42] Speaker 04:
And the fact of the matter is, is that it goes back to what Justice Scalia asked in Preso 1, where he says, that argument isn't compelling to me, because if my aunt were a man, she would be my uncle.

[00:32:56] Speaker 01:
You know, Counsel, I mean, that might have been appropriate when Justice Scalia said it, but that kind of comment really isn't appropriate today.

[00:33:04] Speaker 04:
I apologize, Your Honor.

[00:33:05] Speaker 04:
I thought I was quoting Justice Scalia as agreeing with him.

[00:33:08] Speaker 01:
I think it's very insensitive to certain issues relevant to today.

[00:33:13] Speaker 01:
So please don't quote that.

[00:33:14] Speaker 04:
Okay.

[00:33:14] Speaker 04:
I apologize, Your Honor.

[00:33:17] Speaker 04:
I think they are trying to rekindle arguments that they tried for years and years and lost.

[00:33:22] Speaker 04:
Because here what you have is a transfer of the land to the state of Missouri to operate it on an interim basis for a hiking and biking trail.

[00:33:32] Speaker 04:
And this Court has said repeatedly that it is a creation of a new easement.

[00:33:38] Speaker 04:
The prior easement was extinguished.

[00:33:40] Speaker 04:
That's what the Trails Act does when it intervenes.

[00:33:42] Speaker 04:
That's the governmental act that allows them to build a hiking and biking trail that they otherwise would not be allowed to build.

[00:33:49] Speaker 04:
And I just want to, my time is up, Your Honor, but I want to direct the Court's attention to the Abbott opinion that we actually filed as supplemental authority.

[00:33:56] Speaker 03:
Okay, we're familiar with that.

[00:33:58] Speaker 03:
I think we're out of time.

[00:34:00] Speaker 03:
Thank you Your Honor.

[00:34:02] Speaker 03:
That concludes our session for this morning.