[00:00:00] Speaker 01:
The next case, as indicated, is Memmer et al.

[00:00:04] Speaker 01:
v. United States, 2021-2133 and 2220.

[00:00:11] Speaker 01:
Mr. Stewart, please proceed.

[00:00:15] Speaker 03:
Thank you, Your Honor.

[00:00:16] Speaker 03:
May it please the Court.

[00:00:18] Speaker 03:
This case was, in essence, a companion case to the Kaplan case, at least procedurally, although the facts were different.

[00:00:26] Speaker 03:
And the end result in Kaplan, I call it Kaplan 2, which was the second opinion from this court, was a clarification of some of the explicit or implicit rulings in Caldwell, Barclay, Illig, and Ladd.

[00:00:42] Speaker 03:
And the result was the articulation of a causation standard that applied to Rails to Trails takings cases.

[00:00:51] Speaker 03:
I don't think the intent

[00:00:53] Speaker 03:
was to create chaos or confusion, but I think that has been the result since Kaplan 2 came down, primarily because of mischaracterizations of the ruling in Kaplan 2 by the government repeatedly.

[00:01:08] Speaker 03:
So given all of the pre-existing precedent, including Caldwell-Bartley and particularly Ladd, which was confirmed again in Kaplan 2,

[00:01:19] Speaker 03:
The application of the causation standard must focus on the railroad's intent to abandon at the time of the need to.

[00:01:27] Speaker 03:
And its applicability must frankly be limited to rather strange situations such as Hardy, where the STB issues a need to amend due to an error, revisits or revises the original need to to exclude some property.

[00:01:43] Speaker 03:
There are basically two issues on this appeal.

[00:01:45] Speaker 03:
First, the first issue is

[00:01:48] Speaker 03:
if the causation standard is applied, plaintiffs have easily met their burden to establish causation based on the evidence presented at trial, as Judge Sweeney found.

[00:01:59] Speaker 03:
In fact, the facts supporting her finding of causation are overwhelming.

[00:02:04] Speaker 00:
Mr. Stewart, let me ask you.

[00:02:06] Speaker 00:
Excuse me.

[00:02:06] Speaker 00:
This is Judge Schall.

[00:02:07] Speaker 00:
Can you see me?

[00:02:09] Speaker 00:
Yeah, yes, Your Honor.

[00:02:13] Speaker 00:
In your first brief, you urged us

[00:02:16] Speaker 00:
You urged that Kakelin was wrongly decided, but you're not, and I look at your reply brief, however, you're no longer taking that position, correct?

[00:02:27] Speaker 03:
Well, not for purposes of this appeal, Your Honor.

[00:02:29] Speaker 03:
You're correct that I represented Ms.

[00:02:33] Speaker 03:
Kakelin.

[00:02:33] Speaker 03:
We actually won that on appeal, and we were not in a position to appeal.

[00:02:38] Speaker 03:
OK.

[00:02:39] Speaker 03:
I do not believe this panel obviously has the ability on its own to overrule Caldwell, Barkley, Illigan, Ladd.

[00:02:47] Speaker 03:
Just like this panel does not have the ability to overrule Kaplan 2 on its own.

[00:02:52] Speaker 03:
And so for purposes of this appeal, the issue is whether the evidence presented met the causation standard, Your Honor.

[00:03:00] Speaker 00:
Now on the causation, you basically, where you part company, as I understand it, with the decision of the Court of Federal Claims is,

[00:03:08] Speaker 00:
The Court of Federal Claims said, I think, that the temporary categorical taking ended on January 7th of 2014.

[00:03:18] Speaker 00:
You feel that it should be carried out till 2021 when the railroad finally completed the abandonment process.

[00:03:30] Speaker 00:
And your whole linchpin there, as I understand it, is the regulation, correct, that required that the railroad

[00:03:37] Speaker 00:
to formally submit consummation of abandonment, is that correct?

[00:03:44] Speaker 03:
That's part of it, Your Honor, yes.

[00:03:46] Speaker 03:
The second issue that I was going to discuss is the duration of the taking.

[00:03:50] Speaker 03:
And I think it's definitely true that we believe that the duration of the taking in this case is 10 years.

[00:03:58] Speaker 03:
And the reason is it's related to the consummation of abandonment, but the actual reality is

[00:04:06] Speaker 03:
is that the NITU itself is the governmental act that set in motion all of these events.

[00:04:14] Speaker 00:
But the NITU had expired in, I guess it was November of 2013.

[00:04:22] Speaker 00:
And now it seems to me that after 2013 or January 2014, what does or doesn't happen is all in control of the railroad.

[00:04:35] Speaker 03:
The railroad has a conscious decision to make and that's true in every case, but that's not what results in duration of the taking.

[00:04:44] Speaker 03:
So for example, once the need to is issued, the need to also gives the railroad the right to remove the rails and ties and prescribes an initial negotiation period for the conclusion that they're going to enter into a trail use agreement.

[00:05:03] Speaker 03:
But the fact of the matter is, is just like a hundred years of jurisprudence from the Supreme Court and most recently stated in Cedar Point nursery and the Nick case, the constitutional taking starts when the need to is issued, but it does not end when the need to expires because all of the events that took place, including the finding of state law abandonment that Judge Sweeney concluded, occurred during the dependency of the need to.

[00:05:30] Speaker 03:
So under these facts,

[00:05:33] Speaker 03:
The STB retained jurisdiction at the expense of these landowners.

[00:05:37] Speaker 03:
That's the definition of a taking.

[00:05:40] Speaker 03:
And it's a matter of fact that the consummation of abandonment requirement allowed the railroad to do that.

[00:05:49] Speaker 03:
But that goes to the duration of the taking and not whether a taking occurred.

[00:05:53] Speaker 00:
Well, the duration is obviously important in terms of the overall compensation if it's determined there was a taking.

[00:06:00] Speaker 00:
There's a big difference in the compensation between 2013 or 14 and 2021.

[00:06:06] Speaker 03:
It is not actually all that significant, Your Honor, because it's still a temporary taking.

[00:06:14] Speaker 03:
But the fact of the matter is that when the governmental act takes place, it blocked the plaintiff's reversionary interest.

[00:06:25] Speaker 03:
And the Neetu was, frankly, the only legal block to putting the land to productive use.

[00:06:32] Speaker 03:
So here, what you have is a situation where, unlike the facts of Kaakwan, the railroad basically admitted, they first filed their application for abandonment.

[00:06:45] Speaker 03:
They stated to the world that they had no further use for this as an ongoing railroad operation.

[00:06:53] Speaker 03:
They said there were no shippers.

[00:06:54] Speaker 03:
In fact, there had been no shippers since 2004.

[00:06:58] Speaker 03:
And so they sought permission to abandon it.

[00:07:00] Speaker 03:
And in this particular case, the STB granted their permission to abandon it even before the NITU was issued.

[00:07:08] Speaker 03:
And then they reiterated that permission to abandon when the NITU was issued.

[00:07:12] Speaker 03:
So the NITU caused the ultimate blocking of the reversionary interest.

[00:07:20] Speaker 03:
And that continued.

[00:07:20] Speaker 03:
It didn't expire when the NITU expired.

[00:07:24] Speaker 03:
So here, what you have is a situation where the railroad had a choice to make, but they always have a choice to make.

[00:07:30] Speaker 03:
If they enter into a trail use agreement, it is a permanent taking.

[00:07:36] Speaker 03:
If they had then decided to consummate abandonment, it would have been a temporary taking.

[00:07:41] Speaker 03:
But what the government is really trying to do here is limit takings law to those two

[00:07:50] Speaker 03:
options or possibilities after the need to is issued.

[00:07:55] Speaker 03:
One is the execution of the trail use agreement and one's the consummation of abandonment.

[00:08:00] Speaker 03:
But that doesn't cover all the possible options that can occur once the need to is issued.

[00:08:06] Speaker 02:
So for example, in this particular case... Counsel, this is Judge Rayner.

[00:08:12] Speaker 02:
If one of the main characteristics of a NITU is that it mandates and prevents the revision of the state's interest, why is it that that particular mandate or that stopping the revision of state interest, does it also expire when the NITU expires?

[00:08:38] Speaker 03:
Because it allows the NITU to do several things.

[00:08:42] Speaker 03:
It's just like the recent opinions from the Supreme Court in both Cedar Point nursery and the Nick place.

[00:08:50] Speaker 03:
Here, the taking starts when the plaintiff's reversionary interests are blocked.

[00:08:56] Speaker 03:
But the effects of the need to do not stop when the need to expires.

[00:09:03] Speaker 03:
The plaintiff's reversionary interests are still being blocked.

[00:09:07] Speaker 02:
What's blocking them at that point?

[00:09:11] Speaker 02:
After the need to expires, what's blocking them?

[00:09:15] Speaker 03:
It's the preemption of the state law reversionary rights.

[00:09:19] Speaker 03:
It's actually the state law abandonment occurred during the pendency of the need to.

[00:09:24] Speaker 02:
And at that point in time... I understand that it's the revision of the state rights that's being blocked.

[00:09:34] Speaker 02:
And it's the need to that's blocking that

[00:09:37] Speaker 02:
Now, if the need to is no longer valid because it's expired, then why does that law continue?

[00:09:47] Speaker 03:
Because it sets in motion the right to intervene in state rights, interstate property laws.

[00:09:54] Speaker 03:
That's the definition or the linchpin of the taking under all takings jurisprudence.

[00:10:00] Speaker 03:
So for example, I think it basically goes back to what this court said

[00:10:06] Speaker 03:
back in the Himmler case in 1992.

[00:10:10] Speaker 03:
All takings, in a sense, are temporary because the government can later change their mind.

[00:10:16] Speaker 03:
Here, the railroad can later change their mind.

[00:10:18] Speaker 03:
It's basically permanent until it becomes temporary.

[00:10:21] Speaker 01:
And in fact, in Himmler... Council, let's get back to the question of causation.

[00:10:27] Speaker 01:
Under the Kaplan case, need to does not affect a taking

[00:10:34] Speaker 01:
If the railroad would not have abandoned its line during the period of the Nitu, and it didn't abandon it here, isn't that right?

[00:10:46] Speaker 01:
It kept it open.

[00:10:47] Speaker 03:
They did not consummate federal law abandonment during the pendency of the Nitu.

[00:10:51] Speaker 03:
That's correct.

[00:10:52] Speaker 01:
So there's no causation.

[00:10:54] Speaker 01:
So there's no causation, and it's no longer a question of how long the taking occurred.

[00:11:00] Speaker 01:
There was no taking.

[00:11:02] Speaker 03:
Well, the taking occurs when the need to is issued, and the standard would have abandoned during the pendency of the need to goes to intent to abandon.

[00:11:12] Speaker 03:
That's basically the essence.

[00:11:14] Speaker 03:
And the most important line in Judge Toronto's opinion in Kaplan too was, when they start talking about the consummation of abandonment was, he said it's immaterial that the abandonment did not occur

[00:11:28] Speaker 03:
through the dependency of the NITU because that does not impact whether a taking actually occurred or not.

[00:11:35] Speaker 03:
The ultimate upshot of that is that it's the railroad intent to abandon at the time of the NITU that causes the taking and blocks the landowners' diversionary rights.

[00:11:48] Speaker 03:
Here, the situation is where, and they looked at all kinds of evidence.

[00:11:52] Speaker 03:
They looked at events that occurred before the NITU,

[00:11:56] Speaker 03:
during the NITU and after the NITU and concluded that the railroad intended to abandon during the pendency of the NITU.

[00:12:04] Speaker 03:
Not that there was actual abandonment during the pendency of the NITU.

[00:12:09] Speaker 03:
In fact, the consummation of abandonment is not even the test.

[00:12:12] Speaker 03:
The ultimate consummation of abandonment, if it occurs, goes to the duration of the taking, not whether a taking occurred.

[00:12:21] Speaker 03:
The evidence of causation is even much more substantial based on this record after an eight day jury trial for a variety of reasons.

[00:12:30] Speaker 03:
First, Judge Toronto left for another occasion, back situations that could arise.

[00:12:37] Speaker 03:
This is one of those occasions where in every case, in order for the railroad to even be able to get a need to issue, every railroad must come in and state their affirmative intent to abandon.

[00:12:50] Speaker 03:
that they have not used it for a period of time.

[00:12:53] Speaker 03:
Here, they basically did not use it for any railroad purposes for 18 years.

[00:12:58] Speaker 03:
Here, the blocking of the reversionary interest lasted for a minimum of 30 months instead of six months in Kaplan.

[00:13:06] Speaker 03:
And most importantly, there are two other pieces of evidence.

[00:13:10] Speaker 01:
I'm sorry.

[00:13:13] Speaker 01:
Please be alert to comments from the bench.

[00:13:16] Speaker 01:
You wanted to save some rebuttal time.

[00:13:18] Speaker 01:
You're well into it.

[00:13:20] Speaker 01:
Yes, Your Honor, I apologize.

[00:13:22] Speaker 03:
I just want to make one other point on causation.

[00:13:24] Speaker 03:
The issue is that state law abandonment happened, in this case, during the pendency of the NITU.

[00:13:30] Speaker 03:
And most importantly, because of the trial, we have reams of testimony from the railroad itself that they intended to abandon during the pendency of the NITU, and even after the NITU expired.

[00:13:43] Speaker 03:
And so thus, the blocking of the plaintiffs' reversionary rights continued.

[00:13:47] Speaker 03:
I will reserve the rest of my time, Your Honor.

[00:13:49] Speaker 03:
Thank you.

[00:13:50] Speaker 01:
All right, we'll give you two minutes for a bottle.

[00:13:53] Speaker 01:
Mr. Hellenian, if I pronounced it correctly.

[00:13:59] Speaker 04:
Hellenian, your honor.

[00:14:00] Speaker 04:
Thank you.

[00:14:04] Speaker 04:
Good morning, and may it take the court, Daniel Hellenian for the United States.

[00:14:08] Speaker 04:
The question before the court today in the United States's cross appeal is whether the railroad's decision not to abandon its line can result in a physical taking

[00:14:18] Speaker 04:
by the United States requiring just compensation.

[00:14:22] Speaker 04:
And the answer to that question has to be no.

[00:14:26] Speaker 04:
We think the CFC reached a contrary conclusion by misapplying the court's decision from 2020 in Kaplan versus United States.

[00:14:34] Speaker 04:
So we respectfully ask the court to reverse the CFC's legal error and conclude that there was no taking on this case.

[00:14:45] Speaker 01:
Wasn't that a question of fact on causation?

[00:14:48] Speaker 01:
Claims court decided?

[00:14:53] Speaker 04:
We think that there is a purely legal issue of whether a need to that does not result in either a trial use agreement or a delay in the termination of easements could result in a taking, because a physical taking requires an intrusion by the government.

[00:15:12] Speaker 04:
And second, we think it's a purely legal question whether the facts found

[00:15:17] Speaker 04:
by the CFC support the conclusion that there is a legal causation in this case.

[00:15:23] Speaker 04:
And on both grounds, we think the CFC erred.

[00:15:27] Speaker 00:
So Mr. Leinen, you don't challenge the fact findings of the Court of Federal Claims, correct?

[00:15:35] Speaker 00:
You don't say they're clearly erroneous.

[00:15:37] Speaker 00:
What you're saying, as I understand it, is that they're not clearly erroneous.

[00:15:42] Speaker 00:
We don't challenge them.

[00:15:43] Speaker 00:
But as a matter of law, they don't support the determination that there was a taking, because they don't support the determination that there was causation.

[00:15:55] Speaker 04:
Yes, Your Honor, that's correct.

[00:15:56] Speaker 04:
We have not identified clear error that we're urging this court to reverse.

[00:16:00] Speaker 04:
But we think that as a matter of law, the facts found by the CFC do not support causation.

[00:16:07] Speaker 04:
And we think in a situation where the railroad ultimately chooses not to abandon,

[00:16:13] Speaker 04:
There simply can never be causation or a physical taking on that kind of set of facts.

[00:16:19] Speaker 00:
And that's because... Is that how you would distinguish the Kaquelen case?

[00:16:26] Speaker 00:
Because there, the railroad said, no, we don't want to go down the road anymore with this negotiation process.

[00:16:35] Speaker 00:
We don't want to extend past, I guess it was December 30th of 2013.

[00:16:40] Speaker 00:
We want to abandon.

[00:16:41] Speaker 00:
Is that how you'd distinguish that case?

[00:16:46] Speaker 04:
So in Kaquelen,

[00:16:49] Speaker 04:
The railroad made a determination to abandon, and then the court could look at the decision to abandon the point where the railroad actually abandoned and compare that to a hypothetical situation where the railroad would have abandoned earlier.

[00:17:04] Speaker 04:
And the taking, as the court explained in Kaplan, lies in the difference between those two.

[00:17:10] Speaker 04:
The way that the court conceived of the taking in Kaplan

[00:17:15] Speaker 04:
is that, this is a quote, the government actually compelled continuation of an easement for a time.

[00:17:21] Speaker 04:
And here we can't say that because the railroad ultimately chose not to abandon.

[00:17:26] Speaker 04:
So I think that is the crucial distinction, is that after the U-2 expired in 2013, the railroad had total discretion to choose whether or not it wanted to consummate abandonment or not.

[00:17:41] Speaker 04:
And it declined to do so, and indeed did not

[00:17:44] Speaker 04:
end up going forward with abandonment until 2021.

[00:17:48] Speaker 04:
So on that set of facts, it can't be the case that the needs you hear compel the continuation of any easement, because the easements were the same before and after this entire process.

[00:18:01] Speaker 04:
Before the railroad requested abandonment authority in 2010, and after that, authority expired in 2014.

[00:18:09] Speaker 04:
There's still no change.

[00:18:11] Speaker 00:
Excuse me, let me ask you one other question.

[00:18:13] Speaker 00:
Your backup argument is that if we conclude that there was a taking, we should affirm the Court of Federal Claims.

[00:18:23] Speaker 00:
However, we should change the period.

[00:18:26] Speaker 00:
In other words, the Court of Federal Claims said the taking ended on January 7, 2014.

[00:18:32] Speaker 00:
You're saying we should stop at November 8, 2013, correct?

[00:18:37] Speaker 00:
That's correct, Jim.

[00:18:41] Speaker 00:
Why?

[00:18:41] Speaker 00:
Let me ask you this.

[00:18:43] Speaker 00:
If that's the case, why would the taking not end at the conclusion of the first six-month NITU period, which would be shorter than that?

[00:18:55] Speaker 00:
In other words, the NITU was issued May 23, 2011, and it was due to expire six months after that in the normal course.

[00:19:05] Speaker 00:
But then the railroad, and I guess the potential trails provider, extended it by agreeing to extensions.

[00:19:16] Speaker 00:
Why did it not end, the period not end, six months after May 23rd, 2011?

[00:19:23] Speaker 00:
Because that was when, after that, everything was at the option of the railroad.

[00:19:29] Speaker 04:
Your Honor, I would like to welcome that.

[00:19:31] Speaker 00:
Pardon?

[00:19:34] Speaker 04:
Your Honor.

[00:19:35] Speaker 04:
we would absolutely welcome that sort of conclusion uh... i'm sure you would like to hear your brief so i think the way that you construct your argument here is based on the duration of the need to because we think uh... you know the entire need to process voluntary which is why there was no taking in uh... i think it would be certainly appropriate for the court to conclude that

[00:20:04] Speaker 04:
the railroad's agreement to the extension after the initial 180 days concluded any taking, if there were indeed a taking.

[00:20:15] Speaker 04:
So we would certainly welcome that conclusion, and we think it would be appropriate.

[00:20:18] Speaker 04:
We've urged a sort of more limited conclusion, only because we think the entire need to process is entirely voluntary.

[00:20:30] Speaker 04:
But again, we would certainly welcome that conclusion from the board.

[00:20:37] Speaker 04:
I would just take maybe a second to clarify a little bit about the sequence of events in response to some of the arguments so far today.

[00:20:47] Speaker 04:
I think of course the court is very familiar from the briefing with the timeline, but I just wanted to make clear that when the STB granted abandonment, excuse me, when the railroad filed its exemption notice initially requesting abandonment authority,

[00:21:05] Speaker 04:
I think it was maybe said earlier that the board granted abandonment authority in response to that notice.

[00:21:13] Speaker 04:
What the board did was say that the railroad would have abandonment authority subject to something like a request for a YouTube.

[00:21:21] Speaker 04:
So that's what happened here.

[00:21:23] Speaker 04:
In November, a trail sponsor came forward and expressed interest in negotiating a trail use agreement.

[00:21:31] Speaker 04:
The railroad agreed.

[00:21:32] Speaker 04:
So the railroad actually,

[00:21:34] Speaker 04:
uh... agreed not to exercise that abandonment authority of its own volition before it would have taken effect.

[00:21:42] Speaker 00:
So is it your position, Mr. Lennon, that there can never be a taking if we have a situation like we did here where the railroad seeks an exemption uh... the exemption request is granted subject to

[00:21:57] Speaker 00:
a potential trail provider coming in, the trail provider comes in, the potential trail provider comes in, and the railroad then enters into discussions.

[00:22:08] Speaker 00:
And we go from there.

[00:22:09] Speaker 00:
You're saying that in that scenario, there could never be a temporary categorical taking.

[00:22:15] Speaker 00:
Is that correct?

[00:22:17] Speaker 04:
So I have two responses to that, Your Honor.

[00:22:20] Speaker 04:
First, as we explained in our briefs, the United States reserves the argument that

[00:22:25] Speaker 04:
LAD in that line of cases was wrongly decided in the first place.

[00:22:29] Speaker 04:
So it is our view that the initial agreement to a need to would initiate any argument that there's a physical taking.

[00:22:38] Speaker 04:
But recognizing that Kaplan concluded that there could be a taking, we think that at least in this circumstance where you see repeated voluntary agreements to extensions and an ultimate decision not to consummate abandonment

[00:22:53] Speaker 04:
that that certainly cannot be a physical taking, notwithstanding what the court concluded in Kaplan where there was agreement to an initial need to and the court subsequently found the taking.

[00:23:04] Speaker 04:
I would also just note that in Kaplan, of course, the court recognized this causation standard in a way that hadn't been examined previously.

[00:23:13] Speaker 04:
And in that case, the parties in the CFC did not develop a full record on this causation question.

[00:23:22] Speaker 04:
the Federal Circuit, this court, made a causation conclusion based on the record before it.

[00:23:32] Speaker 04:
So we think that this case is just distinguishable from that on a number of different graphs.

[00:23:41] Speaker 04:
I guess one last point then, that is, I wanted to clarify that the Kaplan standard does not hinge on the intent of the railroad.

[00:23:52] Speaker 04:
I think intent itself cannot constitute a taking.

[00:23:57] Speaker 04:
What this court said in Kaplan is that there has to be a compelled continuation of easement based on a conclusion that the railroad would have abandoned during the period of need to.

[00:24:08] Speaker 04:
We don't have that kind of evidence here, but even if you did, there would not be a taking because the railroad ultimately chose not to exercise the authority to abandon when it had that authority

[00:24:23] Speaker 04:
I'm happy to answer any other questions from the court.

[00:24:27] Speaker 04:
But otherwise, I'll reserve my time.

[00:24:30] Speaker 01:
We will reserve your remaining time for your cross-appeal if there's something to respond to.

[00:24:38] Speaker 01:
Thank you very much, Your Honor.

[00:24:39] Speaker 01:
In the meantime, let's hear from Mr. Stewart.

[00:24:44] Speaker 03:
Unmuted.

[00:24:44] Speaker 03:
Can you hear me now, Your Honor?

[00:24:46] Speaker 01:
We can.

[00:24:47] Speaker 03:
OK, I'm sorry, Your Honor.

[00:24:48] Speaker 03:
It's interesting to note how the government's arguments have changed over time because

[00:24:53] Speaker 03:
Initially in the realm of temporary tape cases, they always said there was no such thing.

[00:24:58] Speaker 03:
You had to have a trial use agreement.

[00:25:00] Speaker 03:
And then they said, well, even if you can have a temporary tape, the analysis had to be a regulatory versus physical taping or even a multi-factor test.

[00:25:10] Speaker 03:
And when that was shot down, now they're evolved into there's no causation test unless there's a consummation of abandonment.

[00:25:19] Speaker 03:
That ignores the intent to abandon, which is exactly what Judge Tarano said in Capital II.

[00:25:25] Speaker 03:
And they finally basically admitted that all they're really trying to do is overrule the Preston all the way back from 1996 in Preso II through Caldwell, Barkley, Illigan, and Ladd.

[00:25:35] Speaker 03:
It's not the consummation of abandonment.

[00:25:37] Speaker 03:
That's not the test.

[00:25:39] Speaker 03:
The consummation of abandonment basically is a federal law concept

[00:25:44] Speaker 03:
invoked by the regulation and has nothing to do with the reason there's a taking, which is the blocking of the reversionary rights.

[00:25:55] Speaker 03:
And it's not a continuation of the easement either.

[00:25:57] Speaker 03:
This is basically an argument that they dusted off all the way back to 1990 when they argued in front of the Supreme Court.

[00:26:04] Speaker 03:
And it basically goes, well, you didn't have anything before, so you didn't lose anything.

[00:26:09] Speaker 03:
And that is contrary to what Judge Rieck was said and also contrary to what Judge Moore said in the oral argument in the last.

[00:26:16] Speaker 01:
Counsel, please do not talk through the bench.

[00:26:20] Speaker 01:
I'm sorry, Your Honor.

[00:26:22] Speaker 01:
Where in Cacklin is intent indicated as a requirement irrelevant?

[00:26:31] Speaker 03:
Your Honor, they say repeatedly in there that they would have abandoned during the pendency of the need to.

[00:26:37] Speaker 03:
Not that they did.

[00:26:38] Speaker 03:
And that is basically the same thing as intent.

[00:26:43] Speaker 03:
Because, and that's exactly what the CFC found when it was remanded back in this case.

[00:26:50] Speaker 03:
Because they said the actual consummation of abandonment, Judge Toronto specifically said, the precise timing of consummation of abandonment is immaterial to liability if abandonment would have occurred during the need to period.

[00:27:07] Speaker 03:
It goes to their intent to abandon and not the actual consummation of abandonment.

[00:27:12] Speaker 01:
But would have occurred is based on judgment of facts rather than imputation of intent.

[00:27:21] Speaker 03:
It is a finding of their intent, which is a finding of fact, as Judge Sweeney did.

[00:27:29] Speaker 03:
It's actually a mixed question of fact and law in this instance.

[00:27:33] Speaker 01:
All right.

[00:27:34] Speaker 01:
Thank you.

[00:27:36] Speaker 03:
Finally, Your Honor, I'll just say that the federal government on the duration, the federal government maintains jurisdiction until the railroad actually ultimately consummates abandonment.

[00:27:47] Speaker 03:
And once state law abandonment has occurred, the duration of the taking is continued.

[00:27:52] Speaker 03:
It's just like Judge Roberts said recently in Cedar Point Nursery and Nick.

[00:27:57] Speaker 03:
The bank robber can ultimately decide to return the money, but he's still guilty of robbing the bank.

[00:28:02] Speaker 03:
And under these circumstances, these landowners

[00:28:06] Speaker 03:
could not make any productive use of their land for a 10-year period of time after the nietzsche was issued.

[00:28:12] Speaker 03:
And that's the duration of the taping.

[00:28:14] Speaker 01:
Thank you, counsel.

[00:28:15] Speaker 03:
Thank you, Your Honor.

[00:28:17] Speaker 01:
We'll hear from Mr. Kallainen on rebuttal, on the cross appeal.

[00:28:25] Speaker 04:
Thank you, Your Honor.

[00:28:26] Speaker 04:
Just one brief point.

[00:28:30] Speaker 04:
The government's position in this case is not inconsistent

[00:28:35] Speaker 04:
With the court's prior decisions in cases like Purcell, in Kaplan itself, the court considered whether the announcement or recognition of a causation standard was consistent with the court's past decisions and concluded that it was.

[00:28:50] Speaker 04:
So all we're asking the court to do in this case is to simply make effective the standard that the court announced in Kaplan and conclude that there was no causation.

[00:29:00] Speaker 04:
The court does not need to examine broader questions of the

[00:29:03] Speaker 04:
court's doctrine in this area, but simply apply Kaplan to this scenario, which the court did not resolve in that case.

[00:29:12] Speaker 04:
And for that reason, we'd ask the court to find that there is no taking in the process.

[00:29:16] Speaker 04:
Thank you, Your Honor.

[00:29:17] Speaker 01:
Thank you, counsel.

[00:29:18] Speaker 01:
We will take the case on a submission.