The State of New York wants to build the Bronx River Greenway, a "23-mile-long ribbon of green with a multi-use path that will extend along the full length of the river in Westchester County and the Bronx." Who could argue with that?
Amtrak, that's who. After failing to acquire 6 parcels along the river owned by the "private corporation created by the Rail Passenger Service Act of 1970, 49 U.S.C. § 24101," in 2008, the state filed notices of appropriation and maps with the county clerk, and title to the land vested in the state. They kept trying to work things out, apparently, but to no avail and in 2012, Amtrak sued in federal court, arguing that the takings were invalid under the Supremacy Clause because they were expressly or impliedly preempted by federal law.
In National Railroad Passenger Corp. v. McDonald, No. 13-4161-cv (Feb. 24, 2015), the Second Circuit never reached the merits of Amtrak's preemption claim, concluding instead that Amtrak waited too long to raise it. The court applied New York's six-year statute of limitations, and detailed the series of events that convinced the court that Amtrak knew or should have known about the injury:
We do not pause to determine the precise date on which NYSDOT knew, or had reason to know, because both possible dates are well beyond six years from the date this action was brought. In 2005, when Weld sent the email informing Amtrak that NYSDOT would hold a May 2005 public hearing on the subject of condemning Amtrak’s land, Amtrak arguably had reason to know of the alleged Supremacy Clause violation that is the basis of its present claim. Eminent domain proceedings cloud title, and Amtrak concedes that it suffered not merely potential, but actual injury once its property became the subject of EDPL proceedings. At the very latest, Amtrak had notice of this harm in August 2005, when NYSDOT announced its findings.
Slip op. at 9.
But wait, you say, the takings actually didn't take place until 2008, and since Amtrak sued in 2012, it was okay. Not so held the court, the "completion of the takings was merely the final act of the intrusion on Amtrak's alleged Supremacy Clause rights that accrued in 2005 at the outset of the condemnation proceedings." Slip op. at 10.
It would make no sense to begin the limitations period -- or restart it -- when title to the real estate actually vests in the state, an act that occurs only after notice to interested parties and the requisite findings have been made. Indeed, Amtrak's proposed rule would leave the validity of a condemnation of its property in doubt for some six years after title has passed. Common sense, not to mention the record of Amtrak's failure to take any of the obvious protective measures, directs otherwise.
Slip op. at 10 (footnote omitted).
In other words, don't wait for the final hammer to fall before formally objecting. We're not sure we agree with the court's analysis here, because before the 2008 notices of appropriation and filing of the maps and vesting of the title in the state, nothing was written in stone, and it appears to us that there was some chance the state and Amtrak would reach an agreement. "Common sense" tells us that it would have tainted the negotiations were Amtrak to have thrown down a lawsuit at that point, and perhaps the reasons it didn't file then wasn't that it was idly sitting on its rights, but rather (1) its property was still its property because the state had not taken the final act to vest title, and (2) it hoped that the ongoing negotiations might be successfully concluded short of a taking.
But the Second Circuit thought otherwise, so the prudent course is to file early and perhaps often. Landowners in these situations are put in a tough spot because invariably, if they do file suit as the Second Circuit requires, either for inverse condemnation or to stop a taking, the condemnor will argue that the case isn't ripe.
Sidebar: for an Amtrak-related post, see "'Shoot, Move & Communicate' En Route To The ABA Annual Meeting" about our adventures traveling cross-country on the train.
National Railroad Passenger Corp. v. McDonald, No. 13-4161-cv (2d Cir. Feb. 24, 2015)