It was mostly a win for the property owners in today's Federal Circuit opinion in Hardy v. United States, No. 19-1793 (July 15, 2020).
The opinion isn't heavy on the takings doctrine. It spent most of the time affirming the Court of Federal Claims' conclusion that the plaintiff-owners owned property under Georgia law (their predecessors had conveyed easements, not fee simple interests, and thus maybe had their reversionary interests taken when, after the rails were abandoned, they were converted to trails use).
Check it out for the nuances of Georgia property law. Is this an easement, a fee, a right-of-way, or something else? Whatever the feds wanted them to be, the court agreed with the owners that Georgia said they were easements. And we know who defines property, mostly, for purposes of the takings clause in this case: Georgia.
The balance of the opinion was more of a draw, with the court vacating the CFC's judgment and remanding the case. Not because there was something wrong with the CFC's conclusion, but because the feds raised an issue on appeal that apparently had not been covered below, and the CFC's judgment was rendered before the recent Federal Circuit opinion in Caquelin v. United States, 959 F.3d 1360 (Fed. Cir. May 29, 2020). That case reaffirmed the long-standing Federal Circuit rule that the issuance of a Notice of Interim Trail Use is the "taking" in a rails-to-trails case, and also set out in more detail how that test should be applied.
In Hardy, the federal government asserted that the railroad never intended to abandon certain portions of the rail lines. Thus, no taking for those parts. The plaintiffs, naturally, disputed that. But you know what appellate courts do when confronted with new authority (Caquelin), and an undeveloped factual record: remand for more factfinding:
Because the briefing and argument before this court did not sufficiently focus on whether or when the Railroad would have abandoned its easements for land east of mile-post E-65.80 absent the NITU, we decline to address this issue on the merits in the first instance. Accordingly, we vacate the Court of Federal Claims’ decision that issuance of the NITU effected a physical taking of land east of mile-post E-65.80 and remand for further proceedings on the questions of whether and when the Railroad would have abandoned the portion of its rail line east of milepost E-65.80 absent the August 2013 NITU.
Slip op. at 18.
Not a complete win for the property owners. But often in our world, you can count as living to fight another day as a win. We think this counts as a win.
Hardy v. United States, No. 19-1793 (Fed. Cir. July 15, 2020)
