1. “Whether the CFC erred in holding that a NITU—which did not authorize third-party use of the railroad’s right-of-way but merely imposed a short administrative hold in the railroad’s voluntary abandonment of the right-of-way—amounted to a government-authorized physical occupation of the underlying property for purposes of takings analysis, and whether this Court should sit en banc to overrule Ladd and Caldwell to the extent that those cases hold that a NITU invariably causes a physical occupation.”
2. “If a NITU can be deemed to cause a government-authorized physical occupation, whether the CFC erred in applying a per se rule to hold that any NITU-caused delay constituted a taking.”
3. “Whether, if the multi-factor analysis of Arkansas Game applies, the CFC erred in finding a taking under that framework.”
1. “The NITU, which expired without a trail agreement in this case, mandated continuation of the easement for a shorter period, providing a right of occupation by someone other than the landowner and, the trial court found, barring the landowner from using the ground burdened by the easement. . . . Ladd I, following Caldwell and Barclay, along with Hendler concerning temporary takings, held that this federal-law maintenance of an easement is a categorical, though temporary, taking, because, for takings-law purposes, it is relevantly the same in character as the longer-duration coerced continuation of an easement that a NITU effects when a trail conversion takes place. . . . This categorical treatment of a coerced easement that impairs the landowner’s right to exclude by allowing others’ occupation finds support in Supreme Court precedent.”
2. “We do not think that Arkansas Game implies that a non-categorical approach to finding a taking applies to the NITU situation at issue here—a mandated continuation of an easement, not to regulate the landowner’s conduct on her land, but only to buy time to arrange a permanent taking by indefinite coerced maintenance of an easement.”
3. “We reject the contention that Arkansas Game calls for displacing the categorical-taking analysis adopted in our precedents for a NITU that blocks termination of an easement, an analysis applicable even when that NITU expires without a trail use agreement that would indefinitely extend the federal law blocking of the easement’s termination.”
