Free Motion for Summary Judgment - District Court of Federal Claims - federal

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the Defendant to the Plaintiffs' Proposed Findings of Uncontroverted Fact, Docket

No. 35, fied December 4, 2007. These documents identify the land owned by the

Plaintiffs including that portion of the Plaintiffs' property that has been taken by
the federal government.

As to the physical dimensions and location of the actual railroad roadbed

and right-of-way, such is shown on the maps and surveys produced by the
Defendant itself

in response to RCFC 26(a)(1)on November 2,2007.

INTERROGATORY NO.2: For each Plaintiff, identify the date and
means by which each Plaintiff acquired the Property identified in Interrogatory

No.1, and the amount of consideration paid for that Property. Attach copies of all
Documents relative to the response noted in your answer, including deeds or other
conveyance Documents.

ANSWER: See response to Interrogatory No.1 above. As to the request
for "the amount of consideration paid," first and fundamentally, such request is
irrelevant to the current issue of the government's liabilty for taking the Plaintiffs'

land and relates (if at all) to the issue of damages. Further, as to even the question
of damages, such information may be irrelevant (i.e., the amount paid in 1920 for a
parcel of land is irrelevant to the value of that property and the

value of the portion

of the land taken by the government when the STB issued the NITU on July 25,
2006.)

INTERROGATORY NO.3: Please identify the property interest each
Plaintiff alleges is held in the Property identified in Interrogatory No. Ion:
a. the date(s) of acquisition, identified in Interrogatory No.2;

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b. the date(s) of

the alleged taking; and

c. the date on which you prepared this response.

Attach copies of all Documents relative to the response noted in your answer.

ANSWER: Each Plaintiff owns fee title to the land described in the
conveyances referenced in Interrogatory No. 1. Each Plaintiff held fee title to this
land on: (1) the date they acquired the property (which predated the STB's issuance
of the NITU on July 25, 2006); (2) the date of the NITU; and (3) they currently own
fee title to the land.

The one exception known to the Plaintiff is W.iiam Lindsey who has died

since the government took his land. That property owned by Wiliam Lindsey on
July 25, 2006 is now owned by his estate.

INTERROGATORY NO.4: For each Plaintiff, identify by metes and
bounds or other legal description the specific property interest which you allege
has been taken by the Defendant. Please state each and every fact upon which

you base this response and attach copies of all Documents relative to the response
noted in your answer.

ANSWER: See response to Interrogatory No.1 above.
INTERROGATORY NO.5: Please identify all servitudes, easements,
rights of way, covenants, licenses, profits, leases, assignments, mortgages, or

subleases, either owned or in possession of Plaintiffs in this litigation, or any
other Person or entity, which currently exists or has existed on the Subject

Properties at any time since the date of

Plaintiffs' original acquisition, including:

a. The identity of

the Person(s) or entity holding such an interest or status:
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Subject Property has been permanently taken and identify the facts upon which
your contention is based.

ANSWER: Yes, pursuant to Caldwell, Barclay, and Renewal Body Works,

Inc., those landowners' whose property was subject to the original NITU and whose land remains subject to the NITU (i.e., those whose land underlies the portion of the
right-of-way between (a) milepost 1040.15 near Curtiss and milepost 1055.8 near

Charleston, and (b) 1055.8 near Charleston and approximately milepost 1074.3 at

the intersection of the rail line with State Highway 92) has been permanently taken

and remains indefinitely subject to the STB's jurisdiction. To the extent that the

current NITU is set to expire on July 26, 2008, the STB possesses the abilty to
indefinitely grant extensions to this NITD.
The named Plaintiffs who own land subject to this permanent taking are the

Lindsey family, Valentin and Deborah Ann Castro, Singletree Ranch, LLC., Joseph

Lawrence Heinzl, the CoL. Quentin Miler Family Trust, and Tammy WindsorBrown.

INTERROGATORY NO. 10: Please state, with respect to the Subject
Property along the entire Subject Right-of-Way, whether you contend that any of
the Property has been temporarily taken by Defendant. If so, please identify \"iith

specificity the portions of the Subject Right-of-Way along which you believe the

Subject Property has been temporarily taken and identify the facts upon which
your contention is based.

ANSWER: For that portion 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

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and milepost 1106.5 near Douglas, and (3) milepost 1085.0 at Bisbee Junction and

milepost 1090.6 at Bisbee, the NITU operated to forestall and preclude these land
owners' reversionary property interests from July 25, 2006 (the date of the NITU)

until January 22, 2007 (the date the NITU and the STB's jurisdiction expired). This
period was 181 days in duration.

The application of the NITU to these landowners' property was a taking of
their right to their property pursuant to Caldwell, Barclay, and Renewal Body

Works, Inc. (See also DOJ's testimony in Illg v. United States in the Appendix 5 to

Plaintiffs' Memorandum of Law in Support of their Motion for Partial Summary
Judgment).

The Ladd family and the Charlie Miler family are the two named Plaintiffs
whose land was temporarily taken.

INTERROGATORY NO. 11: For each Plaintiff, with respect to any
Property that you contend was temporarily taken, please identify the date upon
which it was first taken and identify the date upon which the taking ceased.

ANSWER: See Plaintiffs' response to Interrogatory No. 10 above.

INTERROGATORY NO. 12: For each Plaintiff, with respect to any
Property that you contend was temporarily taken, please state whether you believe
the taking was physical or regulatory in nature. If you believe the taking was

physical in nature, please identify any physical invasion or occupation of the
property by the Defendant and identify the date of any such physical invasion or
occupation.

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right-of-way by ilegal immigrants and drug smugglers has substantially affected the

Miler's adjoining ranch land.

INTERROGATORY NO. 15: For each Plaintiff, with respect to any
Property that you contend was temporarily taken, please identify the highest and
best use for the subject property immediately following the alleged date of taking.

ANSWER: Objection. This interrogatory goes to the issue of damages.
Plaintiffs have yet addressed the issue of damages in this stage of the litigation.

INTERROGATORY NO. 16: Please state your opinion as to the fair
market value, immediately before and after the alleged date of taking, of your

interests in the Subject Property, which you allege to have been taken by the
United States. State in detail the basis for these determinations of fair market

value and identify any documents in support thereof.

ANSWER: Objection. This interrogatory goes to the issue of damages.
Plaintiffs have yet addressed the issue of damages in this stage of the litigation.

INTERROGATORY NO. 17: With respect to your contention in
paragraph 25 of the First Amended Complaint that "sometime after February

2007 a Trail Use Agreement was reached between the SPROc and the Trust for
Public Land," please identify the facts upon which this contention is based.

ANSWER: At the time of filng the Plaintiffs' First Amended Complaint, it

was the Plaintiffs' information and belief that a Trail Use Agreement had been

reached or had been reached in principle for the north-south portion of the
abandoned right-of-way. This was based upon statements made by various
participants during public meetings in Cochise County, Arizona. The Plaintiffs

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currently understand that a Trail Use Agreement has not yet been reached for any

portion of the abandoned right-of-way.
INTERROGATORY NO. 18: With respect to your contention in
Plaintiffs' Proposed Findings of

Uncontroverted Fact that "Plaintiffs are the

successors in title to the original property owners that granted the rights-of-way to

the El Paso and Southwestern Railroad," for each Plaintiff, separately identify the
conveyance document(s) upon which this contention is based.

ANSWER: See response to Interrogatory No.1 above.
INTERROGATORY NO. 19: Please identify all Persons, other than
Experts, whom you intend to call at trial in this matter to testify as to any issue
concerning the liability of

the Defendant.

ANSWER: Plaintiffs anticipate that each of the Plaintiffs - or a
representative of each Plaintiff ownership group - may testify. Plaintiffs reserve the
right to supplement this response as litigation ensues.
INTERROGATORY NO. 20: Please set forth the names, addresses and
expertise of any and all Experts whom you expect to call as an expert witness at
trial, or on whose opinion you expect to rely in support of Plaintiffs' pleadings, to
testify as to any issue concerning the liability of

the Defendant, and state in detail:

a. The subject matter upon which the Expert is expected to testify;

b. The substances of the facts and opinions upon which the Expert is

expected to testify; and

c. A summary of the grounds for each opinion.

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