Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

JACK LADD and MARIE LADD, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) )

No. 07-271 L Honorable Robert H. Hodges, Jr.

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT AND ITS OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

I.

The History of the Subject Railroad Right-of-Way 1. In July 2006, the San Pedro Railroad Operating Company, LLC ("SPROC"), a

wholly-owned subsidiary of Arizona Rail Group, held an interest in approximately 76.2 miles of railroad line in Cochise, County, Arizona (the "subject right-of-way"). See STB Decision and Notice of Interim Trail Use or Abandonment at 1-2 (service date July 26, 2006) (Ex. A).1/ 2. The subject right-of-way consists of (1) the Bisbee Branch between milepost

1085.0 at Bisbee Junction and milepost 1090.6 at Bisbee and (2) the Douglas Branch between milepost 1040.15 near Curtiss and milepost 1106.5 near Douglas. Id. 3. The El Paso and Southwestern Railroad, the Arizona and Southeastern Railroad

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All citations to Exhibits and the Straup Declaration refer to the exhibits and declaration filed by the United States along with its brief in support of its cross motion for summary judgment and in opposition to Plaintiffs' motion for partial summary judgment.

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Company, and the Arizona and Colorado Railroad Company (the "prior railroads") are prior owners of the subject right-of-way. See e.g. Docket No. 33 at 4 (referring to SPROC as the "successor to El Paso and Southwestern Railroad"). 4. The subject right-of-way was originally acquired by the prior railroads through

the 1875 Act and various private conveyance documents executed in the early 1900s. See generally Declaration of Cindi A. R. Straup ("Straup Decl."). 5. On July 13, 2006, SPROC filed a letter requesting that the STB authorize SPROC

to abandon the approximately 76.2 miles of railroad line. See Ex. A at 1-2. 6. On July 20, 2006, SPROC filed a letter indicating its willingness to enter into trail

use negotiations, previously requested by the Trust for Public Land ("the Trust"). Id. at 2. 7. In a July 26, 2006 Decision and Notice of Interim Trail Use or Abandonment

("NITU"), the STB authorized a 180-day period for the parties to negotiate an interim trail use/rail banking agreement. Id. at 2. 8. Interrog. 17. 9. By letter dated January 19, 2007, the Trust requested a 30-day extension of the No trail use agreement was reached during that time. See Ex. C at Ans. to

NITU negotiation period for approximately 38.4 miles of the rail line. See Letter of the Trust to STB dated Jan. 19, 2007 (Ex. D). 10. The STB issued a Decision extending the NITU negotiating period until February

21, 2007 for the portions of the Douglas Branch located between milepost 1040.15 near Curtiss and approximately milepost 1074.3 at the intersection of the rail line with State Highway 92. See STB Decision (service date February 14, 2007) (Ex. E).

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11.

The NITU negotiation period was not extended and, therefore, expired on January

22, 2007 for the Bisbee Branch between milepost 1085.0 at Bisbee Junction and milepost 1090.6 at Bisbee and for the portion of the Douglas Branch between milepost 1074.3 at the intersection of the rail line with State Highway 92 and milepost 1106.5 near Douglas. See Ex. E at 2. 12. No trail use agreement was reached during the NITU negotiation period for any

portion of the subject right-of-way. See Ex. C at Ans. to Interrog. 17. 13. 14. No interim trail use was established over the subject right-of-way. Id. In addition to authorizing a negotiation period pursuant to the Trails Act, the

STB's July 26, 2006 decision specifically contained authorization for the railroad to abandon the subject right-of-way if no trail use agreement was reached within the negotiating period. See Ex. A at 3. 15. On January 29, 2007, the railroad filed a letter with the STB stating that it had

consummated abandonment of approximately 28.1 miles of the subject right-of-way, between: "(1) milepost 1084.0 and milepost 1097.3 at Paul Spur, (2) milepost 1097.3 at Paul Spur and milepost 1106.5 near Douglas, and (3) milepost 1085.0 at Bisbee Jct., and milepost 1090.6 at Bisbee." See Letter of SPROC to STB dated Jan. 29, 2007 (Ex. F). 16. On May 11, 2007, SPROC filed a request to postpone by one year, until July 26,

2008, the deadline to consummate abandonment of the remaining portion of the subject right-ofway. STB Decision (service date June 8, 2007) (Ex. G). 17. In a June 8, 2007 Decision, the STB determined that for good cause shown, the

extension would be granted. Id. 18. SPROC currently has until July 26, 2008 to exercise the authority to abandon and

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file a notice of consummation for the approximately 48.1 miles of the subject right-of-way between milepost 1040.15 and milepost 1084.0. Id. II. The Named Plaintiffs' Property 19. The Lindsey Family, Castro, Heinzl, Singletree Ranch, Miller Ranch Trust, and

Windsor-Brown Plaintiffs' properties abut portions of the subject right-of-way between milepost 1040.15 near Curtiss and milepost 1074.3 at the intersection of the rail line with State Highway 92 (the "Northern Stretch"). See Straup Decl. at ¶ 8. 20. The Northern Stretch of the subject right-of-way was subject to both the original

180-day NITU negotiation period as well as the 30-day extension of the NITU negotiation period. See Exs. A, B. 21. The portion of the subject right-of-way abutting the Lindsey Family property was

acquired by the El Paso and Southwestern Railroad, one of the prior railroads, through a single deed. See Straup Decl. at ¶ 5. The deed is recorded at the following deed book and page number in the Cochise County Courthouse: D.R. 53-247 (October 30, 1911). Id. Ex. 7. 22. The portion of the subject right-of-way abutting the Castro property was acquired

by the El Paso and Southwestern Railroad, one of the prior railroads, through a single deed and through an easement acquired pursuant to an 1875 Act grant. See Straup Decl. at ¶ 5. The deed is recorded at the following deed book and page number in the Cochise County Courthouse: D.R. 53-232 (November 6, 1911). Id. Ex. 8. 23. The portion of the subject right-of-way abutting Joseph Lawrence Heinzl's

property was acquired by the El Paso and Southwestern Railroad, one of the prior railroads, through a single deed and through an easement acquired pursuant to an 1875 Act grant. See

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Straup Decl. at ¶ 5. The deed is recorded at the following deed book and page number in the Cochise County Courthouse: D.R. 53-232 (November 6, 1911). Id. Ex. 8. 24. The portion of the subject right-of-way abutting the Singletree Ranch property

was acquired by the Arizona & Southeastern Railroad Company, one of the prior railroads, through an easement acquired pursuant to an 1875 Act grant. See Straup Decl. at ¶ 5. 25. The portion of the subject right-of-way abutting the Miller Ranch Trust property

was acquired by the Arizona & Southeastern Railroad Company, one of the prior railroads, through an easement acquired pursuant to an 1875 Act grant. See Straup Decl. at ¶ 5. 26. The portion of the subject right-of-way abutting Tammy Windsor-Brown's

property was acquired by the El Paso and Southwestern Railroad, one of the prior railroads, through an easement acquired pursuant to an 1875 Act grant. See Straup Decl. at ¶ 5. 27. The Ladd Family property and most of the Miller Family property abut portions

of the railroad corridor located between milepost 1074.3 at the intersection of the rail line with State Highway 92 and milepost 1084.0 (the "Middle Stretch"). See Straup Decl. at ¶ 9. 28. The Middle Stretch of the subject right-of-way was subject to the original 180-

day NITU negotiation period but not the 30-day extension of the NITU negotiation period. See Exs. A, B. 29. The portion of the subject right-of-way abutting the Ladd Family property was

acquired by the El Paso and Southwestern Railroad, one of the prior railroads, through six deeds and through an easement acquired pursuant to an 1875 Act grant. See Straup Decl. at ¶ 5. The deeds are recorded at the following deed book and page numbers in the Cochise County Courthouse: D.R. 19-498 (July 9, 1903); D.R. 19-493 (July 20, 1903); D.R. 19-491 (July 16,

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1903); D.R. 19-488 (July 7, 1903); D.R. 19-500 (July 13, 1903); and D.R. 19-496 (July 7, 1903). Id. Exs. 1-6. 30. A portion of the subject right-of-way abutting the Miller Family property was

acquired by the El Paso and Southwestern Railroad, one of the prior railroads, through a single deed and through an easement acquired pursuant to an 1875 Act grant. See Straup Decl. at ¶ 5. The deed is recorded at the following deed book and page number in the Cochise County Courthouse: D.R. 50-416 (January 14, 1910). Id. Ex. 9. 31. The remaining portion of the subject right-of-way abutting the Miller Family

property was acquired by the Arizona and Colorado Railroad Company, one of the prior railroads, through a single deed. See Straup Decl. at ¶ 5. The deed is recorded at the following deed book and page number in the Cochise County Courthouse: D.R. 27-495 (March 20, 1903). Id. Ex. 10. 32. A small piece of the Miller Family property abuts a portion of the railroad

corridor located between milepost 1084.0 and milepost 1097.3 at Paul Spur (the "Southern Stretch"). See Straup Decl. at ¶ 9. 33. The Southern Stretch of the subject right-of-way was subject to the original 180-

day NITU negotiation period but not the 30-day extension of the NITU negotiation period. See Exs. A, B. 34. The railroad has fully consummated abandonment of the Southern Stretch of the

subject right-of-way. See Ex. F.

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May 15, 2008

Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division

/s/ Rachel A. Dougan RACHEL A. DOUGAN JAMES D. GETTE Trial Attorneys Natural Resources Section Environment and Natural Resources Division United States Department of Justice Benjamin Franklin Station, P.O. Box 663 Washington, DC 20044-0663 Telephone: (202) 616-5082 Facsimile: (202) 305-0506 [email protected]

OF COUNSEL ELLEN D. HANSON, General Counsel EVELYN KITAY, Attorney Surface Transportation Board Office of General Counsel 395 E Street, SW Washington, DC 20024

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