[00:00:00] Speaker 03:
Our next case is number 241114 Sour West LLC versus United States.

[00:00:07] Speaker 03:
Okay, Mr. Ripley.

[00:00:08] Speaker 02:
Good morning.

[00:00:09] Speaker 02:
May it please the court?

[00:00:11] Speaker 02:
We're here today because a simple question was erroneously made complex.

[00:00:16] Speaker 02:
Causation in Rails-to-Trails cases was always a simple matter, and it's only been since Kaplan clarified the causation standard that it's become complex.

[00:00:24] Speaker 02:
But as Kaplan went out of its way to say,

[00:00:27] Speaker 02:
The court's clarification took nothing away from the simplicity of the analysis.

[00:00:33] Speaker 02:
As Rails to Trails cases since Kaplan, and especially Memmer and Hardy, have enunciated, causation is established based on the railroad's verified intent to abandon, absent extraordinary circumstances or clear mistake.

[00:00:47] Speaker 02:
Kaplan's aftermath spread widely throughout the CFC.

[00:00:51] Speaker 02:
But in every case since this one, except this one, and the exception that proves the rule in Hardy, causation has been established with 2022's Blevins as the most comprehensive example.

[00:01:04] Speaker 05:
Let me ask you, you challenge the, you say the court of federal claims aired in considering these five factors that are extracted from Kakelin, right?

[00:01:19] Speaker 05:
And you say it aired its application, because you say it should have come out differently as to how they weighed, correct?

[00:01:27] Speaker 05:
That's correct.

[00:01:28] Speaker 05:
Then you say that also the court aired, and then turning to what it describes as these other considerations.

[00:01:36] Speaker 05:
And they're all listed, and I think it's page 24 to 25 of the joint appendix.

[00:01:43] Speaker 05:
Now why was, do you say it was error?

[00:01:46] Speaker 05:
for the court to look at those considerations, because it does seem, if you look at Kellen, and specifically pages 1372 and 1373, that it's contemplated that a court should look at these factors.

[00:02:04] Speaker 05:
In that case, the court said the government didn't come forward with these factors, but there's clearly the suggestion that it can come forward.

[00:02:11] Speaker 05:
So why are you saying it was wrong

[00:02:13] Speaker 02:
for the court of federal came to look at these additional consideration factors it wasn't wrong to look at them because as you noted cacklin mentioned those and the cfc in the decision sense of have done the same thing and member and that appeal to uh... said that the same time here was a robustness of the analysis where the going back to the simplicity of these cases the whole history of this going back a couple decades now

[00:02:38] Speaker 02:
Looking too far into it gets closer to, in fact, the CFC called it a multi-factor analysis at one point during his analysis, where if you're looking at all these details, that complicates the issue unnecessarily and brought us to this result.

[00:02:51] Speaker 03:
Well, your main point is that Kaplan was wrongly decided.

[00:02:59] Speaker 03:
We should ask to have the in-bank court overrule it.

[00:03:02] Speaker 03:
But you're also making an argument that I think Judge Stahl was asking about, which is whether under Kaplan here the case came out right.

[00:03:16] Speaker 02:
So yes, our primary position is that this case should be reviewed en banc to firmly establish that causation is established, notice of exemptions, the verified statement of intent, and need to, that should be the end of it.

[00:03:28] Speaker 02:
Setting that aside for purposes of this case and this argument, causation is clearly established under prong two, if you look at the facts of this case.

[00:03:35] Speaker 02:
And primarily looking at the notice of exemption, that verified statement to the STV that this line is no longer being used for freight services, we intend to abandon it,

[00:03:45] Speaker 02:
The railroad in this case actually went way above and beyond in that verified statement.

[00:03:49] Speaker 02:
If you compare it with other notices of exemptions in other cases, the railroad here said we haven't used it for 20 years, where the only requirement is you say two years as a railroad.

[00:03:59] Speaker 02:
That perfectly comports with the history of the line as we see here, where even the CFC agreed that this was abandoned under state law three decades prior to the NICU's issuance.

[00:04:10] Speaker 02:
So it's not that looking at the factors necessarily was wrong, inherently.

[00:04:15] Speaker 02:
It was that the weighing of them and going above and beyond those factors, too, and to this discontinued standard, that was the error, where the weight should have been put on the railroad's own verified statements as an affirmative intent to abandon, which establishes the presumption.

[00:04:32] Speaker 02:
And plaintiffs did that here upon issuance of the need to.

[00:04:34] Speaker 04:
And then to the extent- My understanding of the government's position is that

[00:04:39] Speaker 04:
an application to abandon or an exemption request, it just starts the ball rolling.

[00:04:48] Speaker 04:
That in one sense, yes, it's officially formally an application to abandon.

[00:04:52] Speaker 04:
But at the same time, a host of different options can result from that application.

[00:04:59] Speaker 04:
You can perhaps begin now negotiating with a local town for a possible interim trail use and rail banking.

[00:05:07] Speaker 04:
Or you can get financial assistance for the rail line.

[00:05:13] Speaker 04:
Or you can choose not to abandon at all.

[00:05:16] Speaker 04:
Or you can maybe hand over the easement to some other railroad company.

[00:05:23] Speaker 04:
And so that's why a deeper inquiry needs to take place.

[00:05:27] Speaker 04:
Is that an incorrect understanding of how the process works?

[00:05:32] Speaker 02:
No, that's not incorrect.

[00:05:34] Speaker 02:
It's just important to note.

[00:05:35] Speaker 04:
Then we go on to all the indicia under the pretty unique facts here that seem to militate against a view of abandonment.

[00:05:47] Speaker 04:
There was various maintenance work done.

[00:05:49] Speaker 04:
There was this railroad company does seem to be looking for other options, shopping around for other possibilities.

[00:05:58] Speaker 04:
And then there's this other

[00:06:01] Speaker 04:
issues that I'm interested in you talking about, which is the National Historic Preservation Act and how at the time of the Neetu, this rail line was already under some

[00:06:16] Speaker 04:
historical preservation review process that was lengthier than the actual NITU period.

[00:06:26] Speaker 04:
And so regardless of whether the NITU had issued the summer of 2008, it seems like there's no way that this railroad company could have in fact consummated abandonment during this second half of 2008.

[00:06:42] Speaker 04:
Is there something wrong with

[00:06:45] Speaker 04:
with that understanding of the facts?

[00:06:48] Speaker 02:
So I'll hit the individual facts here first.

[00:06:50] Speaker 02:
As far as the maintenance and sporadic rail car storage, which existed as of the need to date, that is also true in many of these cases.

[00:06:58] Speaker 02:
In Blevins, particularly, there was rail car storage.

[00:07:01] Speaker 02:
Going all the way back to Preso 2, there was some rail car storage.

[00:07:04] Speaker 02:
The SDV itself has said multiple times that rail car storage alone is not enough.

[00:07:09] Speaker 02:
to keep it within federal jurisdiction.

[00:07:12] Speaker 02:
The railroads verified statements at the time of the need to also said we intend to abandon this.

[00:07:17] Speaker 02:
It's not fit for freight service.

[00:07:18] Speaker 02:
There are no potential shippers that we see.

[00:07:21] Speaker 02:
Rail car storage was ongoing.

[00:07:22] Speaker 03:
One of the issues here seems to be whether rail car storage is railroad use or whether you actually have to operate trains over the line, right?

[00:07:32] Speaker 02:
And yeah, I would say that's in this case.

[00:07:34] Speaker 02:
If you look at the history of these cases, it's clearly not enough to... Storage is not railroad use.

[00:07:40] Speaker 02:
Yes, that's right.

[00:07:41] Speaker 02:
And if you look back at the history of these cases, that's true.

[00:07:44] Speaker 02:
That's been present in many cases, and that's not satisfied railroad purposes.

[00:07:50] Speaker 02:
So going back to the facts here, unless you have a follow-up.

[00:07:54] Speaker 03:
Well, on the historic preservation thing, it seems to me historic preservation didn't require that you operate the line, only that you leave the tracks where they were, right?

[00:08:03] Speaker 02:
It's essentially a hold while the Shippo at SHPO... A hold on what?

[00:08:08] Speaker 03:
A hold on ripping up the tracks or a hold on stopping railroad operations?

[00:08:14] Speaker 02:
Ripping up the tracks.

[00:08:15] Speaker 04:
And to be more specific, precluding any consummation of abandonment as well.

[00:08:22] Speaker 04:
Is that right?

[00:08:23] Speaker 02:
That's true.

[00:08:24] Speaker 02:
However, I'll note that in Blevins, this was addressed.

[00:08:28] Speaker 02:
Judge Holt, in a previous opinion, hiply also addressed this very robustly.

[00:08:33] Speaker 02:
Judge Tapp and Lowry also addressed this issue.

[00:08:35] Speaker 02:
All of them found this not to be an issue as vis-a-vis causation in these cases.

[00:08:41] Speaker 02:
It's a completely separate process.

[00:08:42] Speaker 03:
I don't understand how historic preservation prevents abandonment.

[00:08:45] Speaker 03:
You can abandon the line without ripping up the tracks, right?

[00:08:49] Speaker 02:
Yes, that's my understanding.

[00:08:51] Speaker 04:
It's essentially a whole... I guess the entire point is it's a completely separate process from... It is, but to formally consummate abandonment under this Transportation Act scheme, I think you're precluded from being able to do that formal abandonment final step if the rail line is under this

[00:09:16] Speaker 04:
national preservation historical review thing.

[00:09:20] Speaker 04:
Is that right?

[00:09:21] Speaker 04:
I think you've said yes twice, and so that's what I'm trying to get to the bottom of.

[00:09:24] Speaker 02:
Yeah, so playing back into the whole, these are separate processes.

[00:09:28] Speaker 02:
That may be true where certain conditions are placed upon it if things are found that warrant historic preservation.

[00:09:35] Speaker 02:
That does not mean the whole line is maintained.

[00:09:38] Speaker 02:
Use of the line, so vis-a-vis the landowners in this example, if they got their... You can abandon the line without ripping up the tracks, right?

[00:09:45] Speaker 03:
And being in compliance with the historic preservation conditions.

[00:09:48] Speaker 02:
Can you repeat the first part?

[00:09:49] Speaker 03:
You can abandon the line without ripping up the tracks if the historic preservation requirement says you have to keep the tracks the way they were, right?

[00:09:58] Speaker 03:
That's right.

[00:09:59] Speaker 04:
What do you mean by you can abandon though?

[00:10:02] Speaker 04:
That's really the question.

[00:10:03] Speaker 04:
Abandon as abandoned is understood under Colorado state law.

[00:10:07] Speaker 04:
or abandoned as it's understood under the Transportation Act of 1920, where you have to actually consummate abandonment in order to formally abandon the easement.

[00:10:20] Speaker 02:
So this is where the separate tracks come into play.

[00:10:22] Speaker 02:
Is abandonment both state and federal or completely separate from impositions of condition on the National Historic Preservation?

[00:10:27] Speaker 04:
I understand, but now I've heard you say two opposite answers to what my question was on this

[00:10:35] Speaker 04:
And now I'm really lost at what your position actually is.

[00:10:38] Speaker 02:
I'm sorry.

[00:10:39] Speaker 02:
I guess to clarify, you can consummate abandonment.

[00:10:42] Speaker 02:
I misspoke there.

[00:10:44] Speaker 02:
And when I first responded to your question, I believe that's what we're talking about.

[00:10:47] Speaker 04:
You can consummate abandonment under the regime put in place by, I don't know, all these federal statutes.

[00:10:57] Speaker 04:
during the historical review process that the rail line's been put under by, I don't know, by the government through the NHPA.

[00:11:08] Speaker 02:
I don't want to step too far there as far as can it be consummated while the review process is ongoing.

[00:11:14] Speaker 02:
I don't know if that's particularly the case, but it can be consummated.

[00:11:18] Speaker 02:
That was my question all along.

[00:11:20] Speaker 04:
During that historical review process,

[00:11:24] Speaker 04:
You certainly can't touch the and rip up the track, but can you in fact consummate abandonment?

[00:11:32] Speaker 02:
You can.

[00:11:32] Speaker 02:
The thing about this process during the historical review process, it depends on where the SHPO is in that process.

[00:11:40] Speaker 02:
Once they, and usually they review this very quickly where they will identify either there are things we need to look into or there are not.

[00:11:49] Speaker 02:
fairly quickly in this process.

[00:11:51] Speaker 03:
This is really confusing.

[00:11:53] Speaker 03:
This is sort of a bit of a sideshow, but I don't understand how the historic preservation process prevents you from abandoning the line.

[00:12:00] Speaker 03:
The historic preservation process only requires that you keep the track the way it was.

[00:12:05] Speaker 03:
And I think some of these rails-to-trails situations, the track does stay the way it is, but the line is nonetheless abandoned for railroad use, right?

[00:12:14] Speaker 01:
That's correct.

[00:12:16] Speaker 01:
That's correct.

[00:12:18] Speaker 03:
I'm sorry, did you have any other questions on this?

[00:12:26] Speaker 03:
So, here I understand that the railroad negotiated with the city of Des Moines, right?

[00:12:32] Speaker 03:
And they wanted money in order to allow the thing to be converted to a trail, correct?

[00:12:39] Speaker 03:
It's the city of Johnstown, but yes, that's correct.

[00:12:41] Speaker 03:
Okay.

[00:12:41] Speaker 03:
And does that happen frequently in these rails-to-trails cases that the railroad is asking for money to abandon the line?

[00:12:50] Speaker 02:
Yes, especially in smaller railroad situations.

[00:12:52] Speaker 02:
But if you look at Memmer, for example, that's also evidence of intent to abandon in these cases because that would invoke the Trails Act and cause the permanent take.

[00:13:00] Speaker 04:
But the easement, the right of way for rail use hasn't actually been abandoned when you convert it to an interim trail use, right?

[00:13:14] Speaker 04:
Because it's interim trail use and rail banking.

[00:13:18] Speaker 04:
is am i understanding the regime correctly that's correct and that's exactly why there's a take otherwise it would have been really there will be a taking if it ever if this real line ever gets converted into an inter trail that i understand if it does it won't be uh... abandonment of the real

[00:13:41] Speaker 02:
rail line easement?

[00:13:42] Speaker 02:
The state law of rail easement.

[00:13:44] Speaker 02:
Yes, that's correct, and that's why there's a taking.

[00:13:46] Speaker 02:
It prevents that from happening upon the NITU's issuance.

[00:13:49] Speaker 02:
And whether that's temporary or permanent, that's a durational question based on the facts of the case, which here established that it was a temporary taking based on the railroad's verified intent, the decades-long non-use of context at the time that intent was stated.

[00:14:03] Speaker 04:
Your taking is a temporary taking?

[00:14:05] Speaker 02:
That's correct.

[00:14:06] Speaker 04:
For whatever the 180-day period of the NITU?

[00:14:09] Speaker 05:
That's correct.

[00:14:11] Speaker 05:
So your position is that we have to just focus on the railroad's intent at the time of the need to, is that correct?

[00:14:22] Speaker 05:
That's correct.

[00:14:22] Speaker 05:
But the cases, and I'm thinking Kellan, Memmer, look at more than just that instant of the need to.

[00:14:32] Speaker 05:
They look at things that happened before and afterward, correct?

[00:14:36] Speaker 02:
Yes, that's correct.

[00:14:36] Speaker 05:
So what is it, are we looking at intent

[00:14:40] Speaker 05:
at the time of the need to, but intent as informed by what we know happened before and afterwards?

[00:14:47] Speaker 02:
That's correct.

[00:14:48] Speaker 02:
Based on Kaplan, that's what you should do.

[00:14:51] Speaker 02:
The problem here at the CFC is that went way too far.

[00:14:54] Speaker 02:
And I think that's... I'm sorry, you said what?

[00:14:56] Speaker 05:
The court went where?

[00:14:57] Speaker 02:
The court went too far.

[00:14:58] Speaker 02:
Too far where?

[00:14:59] Speaker 02:
In terms of time or what?

[00:15:02] Speaker 02:
I guess after.

[00:15:03] Speaker 02:
Where, I guess for example, we have here six years after the need to in 2014, the railroad says there is industry developing so we're going to put this back into service, notwithstanding that... You're talking now about all the items and events that are listed at the appendix 24 and 25, right?

[00:15:21] Speaker 02:
Yes, that's correct.

[00:15:22] Speaker 02:
But up until 2014, all statements from the railroad, which were all, again, verified and stated before the STB, were either abandoning this or other options which are public use in rail banking.

[00:15:33] Speaker 02:
So all the way up from the Neatoos issuance through 2014, there was no indication whatsoever, especially in the context of the three decades prior of complete non-use, that the railroad did not intend, as of the Neatoos issuance, that it was intending to abandon at that time.

[00:15:50] Speaker 03:
Okay.

[00:15:51] Speaker 03:
We'll give you a couple of minutes for rebuttal.

[00:15:52] Speaker 03:
Thank you.

[00:15:54] Speaker 03:
Mr. Herman.

[00:16:07] Speaker 00:
Good morning, your honors.

[00:16:08] Speaker 00:
May it please the court, Brian Herman for the United States.

[00:16:11] Speaker 00:
Causation is a basic premise that applies equally in Trails Act cases as in any other taking and the United States caused no taking here.

[00:16:19] Speaker 00:
The undisputed facts allow no reasonable inference that absent this need to, the railroad would have abandoned during the 180-day period.

[00:16:27] Speaker 00:
But before turning to those facts, I did want to start by talking about the National Historic Preservation Act because of the questions earlier.

[00:16:34] Speaker 00:
Some of the confusion may come from the fact that plaintiffs chose not to reply on this issue, the first and only mention in the reply brief of the United States argument on the National Historic Preservation Act.

[00:16:46] Speaker 00:
is in footnote 35 on page 21.

[00:16:49] Speaker 00:
And it merely tells this court to see a different CFC decision.

[00:16:52] Speaker 03:
OK, but this Historic Preservation Act doesn't prevent a railroad from abandoning the line.

[00:16:57] Speaker 03:
It just says you have to keep the tracks the way they were, right?

[00:17:00] Speaker 00:
Respectfully, Your Honor, that's incorrect.

[00:17:01] Speaker 00:
And Judge Chen, I would- OK, why is that incorrect?

[00:17:04] Speaker 00:
This is appendix 948.

[00:17:05] Speaker 00:
This is a National Historic Preservation order.

[00:17:09] Speaker 00:
And it says that the railroad, quote, shall not file its consummation notice or initiate any salvage activities related to abandonment, including removal of tracks and ties until the section 106 process has been completed and the board has removed this condition.

[00:17:26] Speaker 00:
The notice of consummation is the federal law requirement to abandon.

[00:17:30] Speaker 00:
The line is not out of the court's jurisdiction and no state law can operate until the notice of consummation is filed.

[00:17:37] Speaker 00:
And the board's historic use order prohibits the filing of any notice of consummation.

[00:17:43] Speaker 00:
So as a matter of law, this railroad could not have abandoned from before the need to issued until well after it expired.

[00:17:50] Speaker 05:
But as a practical matter, I guess I'm picking up on what Judge Dyke was saying earlier.

[00:17:55] Speaker 05:
As a practical matter, if the railroad's not doing anything and the tracks are just sitting there, in a sense, it has abandoned it, hasn't it?

[00:18:05] Speaker 00:
No, Your Honor, certainly not under federal law.

[00:18:07] Speaker 00:
Non-use is not enough to abandon under federal law, nor is it in action.

[00:18:11] Speaker 00:
And I think this actually goes a little bit to Your Honor's question about intent as well.

[00:18:15] Speaker 00:
If a railroad comes along and files an exemption petition,

[00:18:19] Speaker 00:
and says we do intend to abandon at a specific date.

[00:18:22] Speaker 00:
The board issues abandonment authority, and the railroad does nothing.

[00:18:26] Speaker 00:
That abandonment authority will expire, and the railroad will not have abandoned.

[00:18:30] Speaker 00:
It must have.

[00:18:30] Speaker 05:
But I'm thinking that it's a practical matter.

[00:18:33] Speaker 05:
Even though statutory or regulatory requirements have been met, if a railroad is just sitting there, a rail line is just sitting there, the railroad's not doing anything, the average

[00:18:45] Speaker 05:
layperson would say it's abandoned.

[00:18:48] Speaker 05:
I realize it means something different in the statutory sense that we're involved in here, but isn't a railroad abandoned if all you have are the tracks but nothing's going on over the tracks?

[00:19:00] Speaker 00:
I don't think either the state law or federal law supports that, but more importantly in this case, those aren't our facts.

[00:19:05] Speaker 03:
But you could abandon and keep the tracks the way they are, right?

[00:19:10] Speaker 00:
You could abandon under federal law while leaving the tracks in place.

[00:19:13] Speaker 00:
That's true.

[00:19:14] Speaker 00:
But here, this railroad couldn't abandon it as a matter of federal law.

[00:19:17] Speaker 00:
And an important point is that it's a reference to a layperson.

[00:19:22] Speaker 00:
Laypersons wouldn't believe this rail line was abandoned in that respect because it was used.

[00:19:27] Speaker 00:
There's been some looser reference to what use existed before the exemption petition.

[00:19:32] Speaker 00:
The language of the exemption petition is about local or overhead traffic, which is specific types of railroad use.

[00:19:39] Speaker 00:
Local traffic is freight train usage on the segment of the line at issue, going to a destination on that line.

[00:19:46] Speaker 00:
Overhead traffic is using the line to get to places from on either end.

[00:19:50] Speaker 00:
That was not occurring here.

[00:19:52] Speaker 00:
But railroad uses were occurring.

[00:19:55] Speaker 00:
This railroad was storing cars, marshaling cars, and earning money from the use of the trains.

[00:20:00] Speaker 00:
Its tracks were in place.

[00:20:01] Speaker 00:
It was maintaining it enough, certainly, to engage in railroad car storage.

[00:20:05] Speaker 03:
OK, but this seems to be a difference between you and Mr. Ripley as to whether car storage constitutes railroad operations or not, right?

[00:20:15] Speaker 03:
What authority do we have that tells us what the answer is today?

[00:20:19] Speaker 00:
I can answer your question in two parts, Your Honor.

[00:20:21] Speaker 00:
The first, to the authority actually, Perseaux itself answers that question.

[00:20:25] Speaker 00:
In Perseaux,

[00:20:26] Speaker 00:
The court noted that the uses of the line had stopped in 1970, but that the railroad had not abandoned until 1975 when it pulled up the tracks.

[00:20:37] Speaker 03:
But more importantly than that- That's not addressing car storage as being railroad operations.

[00:20:42] Speaker 00:
If the opinion continues, and I apologize for not giving that fuller answer, Your Honor, the opinion notes that from 1970 to 1975,

[00:20:49] Speaker 00:
the railroad was using the line for car storage.

[00:20:52] Speaker 00:
And it wasn't until that stopped with pulling up the tracks in 1975 that the court found the railroad had abandoned.

[00:20:59] Speaker 00:
But more importantly here, the court doesn't need to decide as a matter of law whether rail car storage is railroad purposes, because the cackling question is whether this railroad would have abandoned during the need-to period absent the need-to.

[00:21:14] Speaker 00:
And so the fact that it was using the line for storage

[00:21:17] Speaker 00:
and earning revenue shows that it would not have abandoned this line absent the need to.

[00:21:24] Speaker 00:
particularly the case with some of the additional facts, including during the NITU.

[00:21:29] Speaker 00:
In October of that year, 2008, this railroad replaced 700 spikes, ties, and switches.

[00:21:36] Speaker 00:
That's while the NITU is in place.

[00:21:39] Speaker 00:
If the railroad is spending money on switches, ties, and spikes while the NITU is in place, it's not going to abandon Absent the NITU.

[00:21:46] Speaker 00:
Switches, ties, and spikes are not necessary for rail banking.

[00:21:50] Speaker 05:
Mr. Chairman, let me ask you, in response to what position I understand Mr. Ripley takes, is that you judge the railroad's intent at the time of the need to.

[00:22:00] Speaker 05:
Is that correct?

[00:22:01] Speaker 05:
We disagree with that, Your Honor.

[00:22:03] Speaker 00:
What do you say?

[00:22:04] Speaker 00:
The test is, as Kaplan and Memmer explain, is whether the railroad would have abandoned it during the period of the need to if the Surface Transportation Board had not issued it.

[00:22:13] Speaker 00:
Intent is a factor to consider, but it's not the test.

[00:22:18] Speaker 05:
OK.

[00:22:18] Speaker 05:
The other question I have, and this maybe is just totally irrelevant to anything, clearly the landowners here had the burden of establishing the causation factor, correct?

[00:22:30] Speaker 05:
Yes, Your Honor.

[00:22:32] Speaker 05:
Then we have the language in Coqueline, and I'm maybe mispronouncing the name of it, where the court talks about the government

[00:22:43] Speaker 05:
came forward with

[00:23:00] Speaker 05:
burden being on the appellants, but yet there's that language that I just noted that suggests at some point the government has to, if it wants to prevail, come forward with something.

[00:23:13] Speaker 05:
What are we talking about here in causation and burden of proof or burden of coming forward?

[00:23:18] Speaker 05:
Am I clear in my question?

[00:23:19] Speaker 00:
Yes, Your Honor, I understand it.

[00:23:21] Speaker 00:
And I agree there is an initial causation burden on the plaintiffs.

[00:23:25] Speaker 00:
The best way to consider that in light of what the court did in Kaplan is that the plaintiffs there came forward with evidence.

[00:23:32] Speaker 05:
And the United States was- On the five factors, basically.

[00:23:34] Speaker 00:
Yes, including that the railroad there, for instance, was authorized to remove track, unlike here, and pulled up the track, unlike here, and then, in fact, did abandon.

[00:23:44] Speaker 00:
So those factors were the evidence that the plaintiffs had come forward.

[00:23:47] Speaker 00:
And as I read the court's decision there, the United States came forward with nothing else

[00:23:51] Speaker 00:
And so that evidence supported plaintiffs meeting their burden that the railroad would have abandoned during the NITU period.

[00:23:58] Speaker 00:
And a particularly important fact in that regard is that in Kaplan, the railroad abandoned within three months of the NITU's expiration.

[00:24:06] Speaker 00:
And if it had moved that quickly without NITU, it certainly would have abandoned within the six-month window of the NITU in that case.

[00:24:12] Speaker 00:
Here we have a starkly different situation.

[00:24:15] Speaker 00:
The railroad regained authority to consummate abandonment in March of 09.

[00:24:19] Speaker 00:
It then had six years of unfettered abandonment authority, completely within its discretion, and chose never to abandon.

[00:24:26] Speaker 00:
In fact, within two months.

[00:24:27] Speaker 05:
But in answer to my question, though, I understand you're reciting the facts of this case.

[00:24:33] Speaker 05:
But in answer to my question, if you have a situation where a railroad, I'm sorry, where landowners come in and they demonstrate the five factors from Kakelin that we've been talking about or that you were referencing,

[00:24:47] Speaker 05:
Uh, what happens then?

[00:24:49] Speaker 05:
The government can just sit there and say, you haven't met your five factors, or if the five factors maybe are met, it then has to, it has a burden of coming in, right?

[00:25:03] Speaker 05:
With evidence.

[00:25:05] Speaker 05:
That's what I'm trying to understand what exactly that discussion at 1372 to 1373 of Kakelin is sort of telling us.

[00:25:14] Speaker 05:
What do you say that discussion is telling us?

[00:25:17] Speaker 00:
I think the discussion is saying that, similar to what the CFC did here, the court should engage in a holistic assessment of all the evidence to answer the question.

[00:25:26] Speaker 00:
I'm hesitant to speak too much to those factors as anything definitive, because the court never said those are the factors.

[00:25:32] Speaker 00:
It never said that they're exhaustive.

[00:25:34] Speaker 00:
In any case, there could be different factors.

[00:25:36] Speaker 00:
And so I think the best approach is

[00:25:37] Speaker 00:
Looking at all of the evidence, what would the Router have done?

[00:25:40] Speaker 00:
And those five factors are the only evidence that the plaintiffs had come forward with.

[00:25:43] Speaker 05:
And you'd say looking at all the evidence was the burden met.

[00:25:47] Speaker 00:
Correct.

[00:25:47] Speaker 05:
You're saying that this little discussion that we have at those pages of Kakelin is just a discussion specific to the particular circumstances of that case in terms of the way it had gone down in terms of the evidence.

[00:26:01] Speaker 00:
Yes, Your Honor.

[00:26:02] Speaker 05:
And I suppose this is... Not setting forth the rule.

[00:26:04] Speaker 00:
Correct.

[00:26:05] Speaker 00:
Correct.

[00:26:05] Speaker 00:
Well, the rule in Kaplan is what would the railroad have done absent the need to?

[00:26:09] Speaker 00:
Would it have abandoned during the need to period?

[00:26:11] Speaker 00:
And so looking at all of the evidence to answer that question is the test.

[00:26:15] Speaker 00:
And I briefly just wanted to come back to that particular fact about the timing.

[00:26:19] Speaker 00:
Because here,

[00:26:20] Speaker 00:
The railroad regained its authority to abandon in March of 2009.

[00:26:24] Speaker 00:
And within two months, so by May of 2009, it filed a request to extend the time to abandon, saying it was seeking alternatives.

[00:26:32] Speaker 00:
So we don't have to worry about how far down is some of this evidence.

[00:26:35] Speaker 00:
It was spending money during the need-to period.

[00:26:37] Speaker 00:
It was repairing the line during the need-to period.

[00:26:41] Speaker 00:
And as soon as it had its authority to abandon,

[00:26:43] Speaker 00:
It didn't, and in fact sought extensions for several years to seek alternatives to abandon, which it has now done.

[00:26:49] Speaker 00:
The railroad maintains its jurisdiction under the board.

[00:27:00] Speaker 04:
Can we go back to NHPA?

[00:27:02] Speaker 04:
Yes, Judge.

[00:27:04] Speaker 04:
You cited the order.

[00:27:05] Speaker 04:
A948 that was issued to GWRC saying you can't consummate during the period of review.

[00:27:16] Speaker 04:
Fine, that's in the order, but is there some statutory authority to back up that order, that aspect of the order?

[00:27:30] Speaker 00:
requires all agencies to stop and consider the impacts of its actions on historic properties as a matter of the underlying National Historic Preservation Act.

[00:27:38] Speaker 00:
And the board itself, it has issued, this is an order it served, it's cited at page 11 of our red brief.

[00:27:49] Speaker 00:
It's next part of the order that it issued where it says, a historic preservation condition is a regulatory barrier to abandonment.

[00:27:56] Speaker 03:
OK, but the historic preservation agency, whatever it is, has no authority to tell people to keep operating a railroad.

[00:28:03] Speaker 03:
They can only say, don't pull up the tracks and the ties, right?

[00:28:07] Speaker 00:
The STB has existed.

[00:28:09] Speaker 03:
Yes, no.

[00:28:10] Speaker 00:
So I'm not sure which agency you're referring to, Your Honor, but the board has its own independent obligations.

[00:28:15] Speaker 03:
No, no, no, no.

[00:28:16] Speaker 03:
But the historic preservation statute, let's say,

[00:28:19] Speaker 03:
does not require continued railroad operation.

[00:28:24] Speaker 03:
It just says physically, you've got to leave the zone the way it was, right?

[00:28:30] Speaker 00:
Not precisely.

[00:28:31] Speaker 00:
The NHPA says that you have to account for the impacts of your actions on historic property.

[00:28:35] Speaker 00:
This can be done in several ways, including a Section 106 mitigation.

[00:28:39] Speaker 03:
You can't tell people, as a matter of historic preservation, you have to keep operating the railroad, right?

[00:28:45] Speaker 00:
Well, no.

[00:28:45] Speaker 00:
The NHPA doesn't speak about railroad use.

[00:28:48] Speaker 03:
Yeah, OK.

[00:28:49] Speaker 00:
But the reason it matters is because the STB in enforcing its obligations and meeting and protecting its obligations under that statute, where the STB has exclusive and plenary authority over regulating abandonments,

[00:29:02] Speaker 00:
It can tell railroads, you do not have permission to abandon while we are considering our obligations under the NHPA.

[00:29:09] Speaker 00:
And that's what this, that's what the board did here.

[00:29:11] Speaker 00:
Great Western could not have abandoned no matter what.

[00:29:14] Speaker 05:
Does that speak to, and correct me if I'm wrong, I got the sense here, and I'm maybe misremembering the record, but I got the sense here, Mr. Herman, that Judge Holt said,

[00:29:26] Speaker 05:
He had this lengthy discussion of the historic preservation situation.

[00:29:31] Speaker 05:
But then he said, this wasn't really a factor.

[00:29:34] Speaker 05:
I don't see this as a factor in the railroad's intent.

[00:29:38] Speaker 05:
Am I wrong about that?

[00:29:39] Speaker 05:
Maybe I am.

[00:29:40] Speaker 05:
Correct me if I'm wrong.

[00:29:41] Speaker 05:
He seemed to say, OK, it was out there.

[00:29:44] Speaker 05:
They were constrained.

[00:29:46] Speaker 05:
But it wasn't driving their thinking as to what they wanted to do.

[00:29:51] Speaker 05:
what they could do, but it wasn't driving their thinking as to what they wanted to do.

[00:29:55] Speaker 05:
Am I wrong about that?

[00:29:57] Speaker 00:
I don't know that I recall an explicit discussion, but you're right.

[00:29:59] Speaker 00:
We certainly never argued below that it was a heavy factor in looking at the facts as a whole.

[00:30:04] Speaker 00:
The NHPA, we argued it.

[00:30:06] Speaker 04:
I thought he said he's not going to reach the issue of the NHPA.

[00:30:09] Speaker 00:
Yes, Your Honor.

[00:30:10] Speaker 00:
It's a separate legal question as to whether the NHPA alone would have prevented abandonment.

[00:30:14] Speaker 00:
He did not reach.

[00:30:15] Speaker 00:
He deferred saying, the facts as a whole told me this railroad would not have abandoned.

[00:30:19] Speaker 00:
So he didn't reach the NHPA at all.

[00:30:21] Speaker 00:
This court doesn't have to.

[00:30:23] Speaker 00:
The undisputed facts here are enough to support that this railroad would not have abandoned Absent the Need to's issuance because this railroad continued to use and maintain its railroad before, during, and after the Need to.

[00:30:36] Speaker 03:
But actually the NHPA supports the plaintiffs here, doesn't it?

[00:30:40] Speaker 03:
Because they didn't pull up the track

[00:30:45] Speaker 03:
and the ties, and you say that shows an intent not to abandon, but they're able to say, no, no, the reason we didn't pull up the track on the ties is because of historic preservation.

[00:30:55] Speaker 00:
That does not support the plaintiffs here, Your Honor, because the NHPA is not the challenge of government action.

[00:31:01] Speaker 00:
The only challenge of government action in this case is the need to, and more than that... No, no, that doesn't address what I'm saying.

[00:31:07] Speaker 03:
What I'm saying is the government relies on the fact that the ties and the rails

[00:31:13] Speaker 03:
were not pulled up, which is contrary to the idea that they were abandoning the thing, right?

[00:31:20] Speaker 00:
That's their argument.

[00:31:22] Speaker 00:
Your Honor, if I might just briefly respond to that point, I see that amount of time.

[00:31:25] Speaker 00:
Go ahead.

[00:31:27] Speaker 00:
It's more than that.

[00:31:27] Speaker 00:
The issue is not simply that they left the tracks in place.

[00:31:31] Speaker 00:
They spent money repairing the tracks.

[00:31:33] Speaker 00:
That's a key distinction here.

[00:31:34] Speaker 00:
They didn't organize, like in Memmer, for instance, a company to come along and salvage when they had authority.

[00:31:39] Speaker 00:
They paid to repair these tracks and ties.

[00:31:42] Speaker 03:
Okay.

[00:31:43] Speaker 03:
All right.

[00:31:43] Speaker 03:
I think we're out of time.

[00:31:44] Speaker 03:
Thank you.

[00:31:44] Speaker 03:
Thank you.

[00:31:45] Speaker 03:
Mr. Ripley, you've got a couple of minutes here.

[00:31:52] Speaker 02:
Thank you.

[00:31:53] Speaker 02:
I do want to start with setting aside causation for a second in response.

[00:31:58] Speaker 02:
We do still have an alternative path to liability and state law abandonment alone in Prop 3.

[00:32:03] Speaker 02:
You should have two minutes.

[00:32:05] Speaker 02:
Go ahead.

[00:32:06] Speaker 02:
The prom 3 of preso 2, going back to preso 2, says state law abandonment is a specific alternative path to liability.

[00:32:14] Speaker 04:
You didn't bring this up in your original argument presentation, right?

[00:32:18] Speaker 02:
This is in response to all the facts being brought up.

[00:32:20] Speaker 02:
And I did talk about state law abandonment as context of this whole analysis causation.

[00:32:28] Speaker 02:
Looking to state law abandonment prom 3, it's an alternative path.

[00:32:31] Speaker 02:
It's clearly established here.

[00:32:33] Speaker 02:
The CFC.

[00:32:34] Speaker 03:
We rejected that in Caldwell and Barclays already, right?

[00:32:39] Speaker 03:
We said federal law determines what abandonment is.

[00:32:43] Speaker 02:
As far as the distinction between state law and... We said federal law and government.

[00:32:48] Speaker 03:
Maybe we were wrong, but we've already decided the issue.

[00:32:51] Speaker 02:
I believe that contradicts PRISO 2, though, their discussion of state law abandonment.

[00:32:56] Speaker 02:
I'll just note that that's an alternative path to liability, and the Federal Circuit backed that up after that.

[00:33:00] Speaker 02:
Going back to Prompt 2 analysis and causation, at the end of the day, I think we have to, and going back to the shifting burden analysis, you have to take the railroad's word for it.

[00:33:10] Speaker 02:
When they file that notice of exemption for abandonment, they verify before the STB, we intend to abandon this line.

[00:33:17] Speaker 02:
There's no freight services.

[00:33:18] Speaker 02:
There's no railroad purposes that should be under STB jurisdiction.

[00:33:24] Speaker 02:
car storage falls into that.

[00:33:26] Speaker 02:
As I mentioned before, plenty of the cases mention rail car storage, and that was not a factor in the railroad's intent.

[00:33:35] Speaker 02:
As far as the notice of consummation and that discussion, I'll note that the member court said that that doesn't matter.

[00:33:43] Speaker 02:
The actual filing of a consummation abandonment itself is not a prerequisite to finding a temporary taking, because that does not speak, even going back to the railroad's intent as of the NICU's issuance,

[00:33:54] Speaker 02:
That's what establishes causation.

[00:33:56] Speaker 02:
And we would have abandoned language.

[00:33:58] Speaker 02:
How do we determine that?

[00:33:59] Speaker 02:
Looking at the reverence intent as stated in context of 30 years of values as of the E2's issuance.

[00:34:06] Speaker 02:
So I know I'm out of time, but I do just want to wrap up briefly by saying, again, this is a simple question, and all we're asking is to confirm causation was established here based on these facts.

[00:34:18] Speaker 02:
This court also has the opportunity to round out the remaining questions presented by Kaplan, where it talked about this burden of production that we've been talking about, where notice of exemption paired with a need to establishes affirmative presumption to abandon, absent extraordinary circumstances or clear mistake like in Hardy.

[00:34:38] Speaker 03:
Okay, thank you.

[00:34:39] Speaker 03:
Thank both counsel.

[00:34:40] Speaker 03:
The case is submitted.