Argument Preview / Panel Activity

This week we are previewing oral arguments scheduled for next week at the Federal Circuit in three cases that attracted amicus briefs. Today we highlight Memmer v. United States, a takings case in which Memmer appeals a decision by the Court of Federal Claims concerning a Notice of Interim Trail Use issued by the Surface Transportation Board. In the appeal, Memmer challenges the lower court’s analysis of causation as well as its decision that “the duration of the taking lasted as long as the railroad’s abandonment authority existed.” The United States cross-appeals to argue that the lower court “erred in holding that Indiana Southwestern would have abandoned if the NITU had not issued.” One amicus brief was filed in support of Memmer. This is our argument preview.

In its opening brief, Memmer argues that the issuance of a NITU “triggers a physical taking” because it “authorizes a physical occupation of the landowners’ property.” He claims that “the taking is a per se categorical physical taking when it is issued.” Memmer claims that, as a result, there is “no causation requirement” under the National Trail Systems Act; he says “the issuance of the NITU is the only causation that is necessary.” He goes on to discuss the issue of the duration of the taking. He asserts the CFC “erred when it determined that the duration of the taking ended when the railroad’s authorization to abandon expired.” Memmer argues that “the duration of the taking continued after the expiration of the NITU” because the railroad failed to “consummate federal abandonment after state law abandonment occurred during the pendency of the NITU.”

In its principal and response brief, the United States argues it is not liable because Memmer “failed to establish that the NITU delayed or prevented expiration of the railroad’s easements.” It refutes Memmer’s claim that there is no causation requirement, citing precedent. It also notes that “no case has held that a NITU can effect a taking where, as here, the NITU does not result in either a trail-use agreement or delayed abandonment.” Further, the United States contends, the lower court “erred in holding that Indiana Southwestern would have abandoned if the NITU had not issued.” The government maintains any NITU taking “necessarily concluded” with the NITU’s expiration.

In his response and reply brief, Memmer argues that, even if causation is a necessary element for a Trails Act taking, the facts of his case establish causation. He goes on to claim that the government “repeatedly misstates the law related to state law abandonment by mischaracterizing the distinction between state law abandonment and the consummation of abandonment under federal law.” Finally, Memmer reasserts his argument that “state law reversionary rights were forestalled until the railroad finally consummated abandonment under federal law” due to the railroad’s failure to “consummate federal abandonment.”

In its reply brief, the United States argues that Memmer did not establish causation. It claims that Memmer’s interpretation of the relevant precedent is consistently inaccurate. And it asserts that the lower court “erred in determining the duration of any taking.”

The National Association of Reversionary Property Owners, Cato Institute, Owners’ Counsel of America, Southeastern Legal Foundation, Reason Foundation, and Professor James W. Ely, Jr. filed an amicus brief in support of Memmer. In their brief, they claim the Trails Act has the “express purpose” of “‘destroying’ and ‘effectively eliminating’ landowners’ state-law reversionary property interests.” Additionally, they claim, “invocation of the Trails Act is a per se taking for which the government has a ‘categorical’ obligation to pay the landowner.”

This case will be argued on Monday, June 6. We will report on developments.