Argument Preview

Another case that will be argued next week is Caquelin v. United States, which attracted three amicus briefs. The Federal Circuit will be asked to address two questions related to takings law. First, the court will consider whether the Court of Federal Claims erred in holding that a notice of interim trail use (“NITU”) “amounted to a government-authorized physical occupation of the underlying property for purposes of [a] takings analysis.” Second, the court will consider whether the Court of Federal Claims erred in finding a taking under the “multifactor analysis of Arkansas Game [and Fish Comm’n v. United States].” Here is our preview of the arguments that will be presented to the court.

In its opening brief, the government addresses each issue in turn. With respect to the issue of whether a physical occupation occurred, the government explained that the question before the court is “whether the issuance of a NITU—an administrative action that does not constitute a physical invasion or occupation by the United States but instead allows for a negotiation period that (possibly) briefly extends a pre-existing perpetual easement—constitute a per se physical taking.” The government claims the answer “is no.” It argues that an NITU does not (1) create a new use of a railroad easement; (2) expand an existing easement; (3) create a new easement; or (4) “permanently prevent an underlying owner from regaining the unencumbered fee.” Instead, the government argues, an NITU “simply allows a period for negotiations that might . . . lead to an easement for interim trail use rather than a continuation of the abandonment process that might . . . result in the railroad easement’s being abandoned.” Based on this understanding of the situation, the government contends that the treatment of the NITU as a per se taking by the Court of Federal Claims is “demonstrably wrong.”

Turning to the application of Arkansas Game, the government points out that this second issue arises in this case only if the court agrees per se takings liability is inappropriate. The government’s primary argument with respect to this issue is that the Court of Federal Claims failed to apply the relevant precedent and failed to “hold Plaintiff to her burden to establish critical facts.” The government maintains that the lower court’s analysis “appears infected by its belief that Plaintiff’s claim is compensable per se and thus should not be subject to the multi-factor analysis” that is required by Federal Circuit precedent. But, “[o]n the facts developed” by the Court of Federal Claims, the government argues that “the only available conclusion . . . is that no compensable taking occurred here.”

Caquelin, in her response brief, also begins with the question of whether a physical taking occurred. She begins her argument by citing to two Supreme Court cases in which, she alleges, “the authorization for the conversion of a railroad right-of-way to a public recreational hiking and biking trail by issuance of a NITU constituted a taking because the owner’s reversionary interest was blocked under the authority of the Trails Act.” Arguing that the NITU is both a physical and categorical taking, Caquelin also cites to Federal Circuit precedent as standing for the proposition that the NITU “blocks the landowner’s reversionary interests and [thus] a categorical physical taking accrues.” According to Caquelin, “the duration of the temporary categorical physical taking under the Trails Act when the NITU is issued goes to the issue of damages and not the issue of liability.” She characterizes the government’s position as “a frontal assault on all precedent” from the Federal Circuit holding that “a temporary categorical physical taking occurs when the NITU is issued and no trail use agreement is ultimately signed.” She maintains that the government’s attempt “to treat a temporary taking when no trail use agreement is ultimately reached as a temporary non-categorical regulatory taking” already has been rejected by the Supreme Court and the Federal Circuit.

Turning to the multifactor analysis issue, Caquelin keeps her argument brief. She says that “a multi-factor analysis does not apply to a temporary categorical physical taking” based on Supreme Court and Federal Circuit precedent. Anyway, she argues, “when a multi-factor test is properly applied to a temporary categorical physical taking, the result is exactly the same.”

In its reply brief, the government first argues that the “NITU did not cause any physical occupation or use of Plaintiff’s property beyond the pre-existing railroad easement.” On this point, the government attempts to differentiate the present case from the precedent cited by Caquelin. Finally, the government again argues that, “[e]ven if the NITU effected a physical occupation, it did not amount to a taking under the multi-factor analysis of Arkansas Game.”

As noted, this case has drawn interest in the form of three amicus briefs, one in favor of the government and two in favor of Caquelin.

A first amicus brief, filed by the Rails-to-Trails Conservancy, supports the United States. It first argues that a particular case cited by Caquelin “conflates physical and regulatory takings concepts and must be overturned.” The brief also argues that a NITU does not constitute a taking under the Arkansas Game test.

The Iowa Farm Bureau Federation, Illinois Agricultural Association, Kansas Farm Bureau, and Missouri Farm Bureau Federation filed an amicus brief in support of Caquelin. They argue that a “Fifth Amendment taking occurs when the government blocks a landowner’s state law property rights by invocation of Section 8(d) of the Trail Act.” They also argue that “preserving precedent is paramount in property rights cases.”

The National Association of Reversionary Property Owners, Cato Institute, Southeastern Legal Foundation, Reason Foundation, Inversecondemnation.Com, and Professor James W. Ely, Jr. filed the third amicus brief, which also supports Caquelin. Their brief makes three arguments. First, it argues that the Court of Federal Claims properly followed the Federal Circuit’s precedent. Second, it argues that the government’s “temporary regulatory taking theory” contradicts “controlling precedent and is a logical and practical disaster.” Its final argument is that adopting the government’s position “would unsettle land title throughout the country and throw [the Federal Circuit’s] Trails Act jurisprudence into chaos.”

We will keep track of this case and report on any developments.