Free Stipulation - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _______________________________________ ) RON AND BETTY BLENDU, et al., ) ) Plaintiffs, ) ) No. 01-718 L v. ) ) Judge Emily C. Hewitt UNITED STATES OF AMERICA, ) ) ) Defendant. ) _______________________________________ ) REVISED TITLE STIPULATIONS (MODIFIED May 30, 2007) The stipulations set forth herein replace the title-related stipulations previously filed by the parties that the parties have jointly moved to withdraw.1 The stipulations set forth below are expressly based on facts and information available and known to the parties at this time, and are subject to modification or revocation by either party should additional factual information come to light that affects the accuracy of these stipulations. In addition, if there is an intervening change in the law that affects the stipulations set forth herein while this case is still pending, then either party may seek to be relieved of the stipulations on that ground. Some of the parties' stipulations are based on the decisions in the related case of Hash v. United States, No. CV-99-324-S-MHW (D. Idaho), which involves the same railroad right-ofway that is at issue in this case. In Hash, the parties categorized the original conveyances to the railroad into deed categories and then briefed the question of whether the subject deeds conveyed
1

The withdrawn stipulations are set forth in the parties' Stipulations Regarding Title Matters (filed Jan. 22, 2007) (Doc. 35), and in their Second Set of Stipulations Regarding Title Matters (filed Feb. 5, 2007) (Doc. 37). 1

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an easement or fee simple title to the railroad. In a memorandum decision of November 21, 2001, the district court held that the deeds for deed categories 4 through 9 conveyed fee simple title to the railroad. See Hash v. United States, No. CV-99-324-S-MHW, Mem. Decision at 1118 (D. Idaho Nov. 21, 2001) (Exhibit 1). The Hash plaintiffs subsequently appealed the district court's interpretation of the deeds for categories 5, 6 and 8, but did not appeal the district court's interpretation of categories 4, 7 and 9. Plaintiffs herein also do not challenge the district court's interpretation of categories 4, 7 and 9. On appeal, the Federal Circuit vacated the district court's ruling as to categories 5, 6 and 8, and remanded for redetermination in light of an intervening decision from the Idaho Supreme Court. Hash v. United States, 403 F.3d 1308, 1319-21, 1323 (Fed. Cir. 2005). On remand, the district court interpreted the deeds in deed categories 5, 6 and 8 and held that, under Idaho law, those deeds conveyed fee simple title to the railroad. Hash v. United States, No. CV-99-324-SMHW, Mem. Decision at 6-17 (D. Idaho Aug. 18, 2006) (Exhibit 2). That interlocutory decision remains subject to appeal. The parties herein do not agree as to the applicability of this Hash decision to certain deeds in this case, and have thus proposed further briefing as to the nature of the interest acquired by the Railroad pursuant to several deeds that fall within deed category 6.2 This proposed briefing schedule is set forth in the parties' Joint Status Report and Scheduling Proposal, filed this date (Doc. 51).

This case involves several Category 6 deeds. There are no Category 5 or Category 8 deeds at issue in this case. 2

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Stipulations Applicable to All Plaintiffs (Background Facts) 1. The railroad right-of-way at issue in this case ("the subject right-of-way") is located between Weiser and New Meadows, Idaho. This right-of-way is approximately 83 miles in length and generally follows the path of the Weiser River. 2. Between 1899 and 1900, the Pacific and Idaho Northern Railway (the "Railroad") commenced construction of its railroad line on the subject right-of-way. Construction of the Railroad's line reached Cambridge in December 1900, Council in March of 1901, and Meadow Valley or "New Meadows" in 1911. 3. The Railroad acquired its interest in certain portions or segments of the right-ofway on which its line was constructed by deed. The interpretation of these deeds is governed by Idaho state law. 4. On March 17, 1995, citing the closure of a Boise Cascade sawmill in Council and an anticipated loss of 75% of the rail traffic on the Weiser to New Meadows line, the Railroad filed a petition with the Surface Transportation Board ("STB") seeking an exemption under 49 U.S.C. § 10505 from the prior approval requirements of 49 U.S.C. § 10903-04 to abandon the 83-mile line. 5. By a decision served on November 1, 1995, the STB granted the Railroad's petition, subject to several conditions. 6. Several groups filed requests for the issuance of a Notice of Interim Trail Use ("NITU"), along with "Statements of Willingness to Assume Financial Responsibility" for the right-of-way, and the Railroad indicated it was willing to 3

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negotiate a railbanking and interim trail use agreement pursuant to the National Trails System Act, 16 U.S.C. § 1247(d). 7. On December 28, 1995, the STB issued a NITU that reopened the exemption proceedings and modified its decision of November 1, 1995, to allow the parties 180 days to negotiate a railbanking and interim trail use agreement. The NITU also authorized the Railroad to discontinue service on the line and to "salvage track and track materials consistent with interim trail use/rail banking." 8. The Railroad reached a Trails Act agreement with the Friends of the Weiser River Trail ("FWRT"), and quitclaimed its interest in the subject right-of-way to FWRT on June 17, 1997. Subject to the Trails Act and the conditions set forth in the NITU, the right of way presently is owned and operated by FWRT and is known as the "Weiser River Trail." 9. The alleged date of taking in this case is December 28, 1995, which is the date on which the STB issued its decision and NITU. See Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2004), cert. denied, 126 S. Ct. 366 (2005); Barclay v. United States, 443 F.3d 1368 (Fed. Cir. 2006). Stipulations Applicable to Plaintiffs Ron and Betty Blendu 10. On December 28, 1995, Plaintiffs Ron and Betty Blendu were the owners of certain real property located in Washington County, Idaho. Portions of this property abut or are traversed by the subject right-of-way. The Blendus' predecessors-in-title include: (1) Francis M. and Pauline Potter, (2) Andrew M. and Ona Reed, and (3) John P. and Eva Hallstrom. 4

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11.

On July 22, 1899, Francis M. and Pauline Potter conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Potter deed"). The Potter deed, which is attached hereto as Exhibit 3, was recorded in Washington County, Idaho at Book 10, Page 91.

12.

The Potter deed is comparable to the warranty deeds in Hash deed categories 4, 7 and 9, which were held by the district court to convey fee simple title to the Railroad. 2001 Mem. Decision at 11, 15 (Ex. 1). Under Idaho law, as interpreted and applied in Hash, the Potter deed conveyed fee simple title to the strip of land described therein to the Railroad.

13.

Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Potter deed (Ex. 3), the Blendus have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Blendus' takings claim shall be dismissed by order of the Court.

14.

On September 6, 1899, Andrew M. and Ona Reed conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Reed deed"). The Reed deed, which is attached hereto as Exhibit 4, was recorded in Washington County, Idaho at Book 10, Page 161.

15.

The Reed deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Reed deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal. 5

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16.

On August 23, 1899, John P. And Eva Hallstrom conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Hallstrom deed"). The Hallstrom deed, which is attached hereto as Exhibit 5, was recorded in Washington County, Idaho at Book 10, Page 145.

17.

The Hallstrom deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Hallstrom deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

18.

In addition to the lands described in paragraphs 11 ­ 16, the Railroad acquired its interest in two segments of the portion of the right-of-way that traverses the land owned by the Blendus under the General Railroad Right-of-Way Act of March 3, 1875, ch. 152, 18 Stat. 482 (codified as 43 U.S.C. §§ 934-939 (1982)) (the "1875 Act"). The segments acquired under the 1875 Act traverse the SW1/4 SW1/4 of Section 33 in T14N R3W and the NE1/4 NE1/4 of Section 5 in T13N R3W. The Court's ruling regarding liability as to these segments is set forth in the Court's Opinion of February 22, 2007 (Doc. 42).

19.

In addition to the lands described in paragraphs 11 ­ 17, the Railroad acquired its interest in a segment of the subject right-of-way that abuts or traverses the land owned by the Blendus in the N1/2 NW1/4 of Section 8 and in the SW1/4 SW1/4 of Section 5, both in T13N R3W, by adverse possession. The parties are not stipulating at this time to the nature of the interest that the Railroad acquired by adverse possession under Idaho law. 6

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Stipulations Applicable to Plaintiffs Dean and Velda Fairchild 20. On December 28, 1995, Plaintiffs Dean and Velda Fairchild were the owners of certain real property located in Washington County, Idaho. This property abuts or is traversed by the subject right-of-way. The Fairchilds' predecessors-in-title include: (1) William H. Male, (2) Marvin and Jane Kilborn, (3) Norman Girling, and (4) Adeline Day. 21. On May 2, 1900, William H. Male conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Male deed"). The Male deed, which is attached hereto as Exhibit 6, was recorded in Washington County, Idaho at Book 9, Page 445. 22. The Male deed was one of the representative deeds for Hash deed category 9. The district court held that the category 9 deeds, including the Male deed, conveyed fee simple title to the Railroad. 2001 Mem. Decision at 15 (Ex. 1). Under Idaho law, as interpreted and applied in the Hash decision, the Male deed conveyed fee simple title to the strip of land described therein to the Railroad. 23. Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Male deed (Ex. 6), the Fairchilds have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Fairchilds' takings claim shall be dismissed by order of the Court.

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24.

On August 29, 1899, Marvin Kilborn and Jane Kilborn conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Kilborn deed"). The Kilborn deed, which is attached hereto as Exhibit 7, was recorded in Washington County, Idaho at Book 10, Page 149.

25.

The Kilborn deed is comparable to the warranty deeds in Hash deed categories 4, 7 and 9, which were held by the district court to convey fee simple title to the Railroad. 2001 Mem. Decision at 11, 15 (Ex. 1). Under Idaho law, as interpreted and applied in the Hash decision, the Kilborn deed conveyed fee simple title to the strip of land described therein to the Railroad.

26.

Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Kilborn deed (Ex. 7), the Fairchilds have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Fairchilds' takings claim shall be dismissed by order of the Court.

27.

On August 29, 1899, Norman Girling conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Girling deed"). The Girling deed, which is attached hereto as Exhibit 8, was recorded in Washington County, Idaho at Book 10, Page 144.

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28.

The Girling deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Girling deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

29.

On July 18, 1899, Adeline Day conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Day deed"). The Day deed, which is attached hereto as Exhibit 9, was recorded in Washington County, Idaho at Book 10, Page 74.

30.

The Day deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Day deed, in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

Stipulations Applicable to Plaintiffs Milton and Lola Kerner 31. On December 28, 1995, Plaintiffs Milton and Lola Kerner were the owners of certain real property located in Washington County, Idaho. This property abuts or is traversed by the subject right-of-way. The Kerners' predecessors-in-title include Sarah J. Jeffreys. 32. On July 1, 1899, Sarah J. Jeffreys conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Jeffreys deed"). The Jeffreys deed, which is attached hereto as Exhibit 10, was recorded in Washington County, Idaho at Book 10, Page 49.

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33.

The Jeffreys deed is comparable to the warranty deeds in Hash deed categories 4, 7 and 9, which were held by the district court to convey fee simple title to the Railroad. 2001 Mem. Decision at 11, 15 (Ex. 1). Under Idaho law, as interpreted and applied in the Hash decision, the Jeffreys deed conveyed fee simple title to the strip of land described therein to the Railroad.

34.

Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Jeffreys deed (Ex. 10), the Kerners have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Kerners' takings claim shall be dismissed by order of the Court.

Stipulations Applicable to Bruce and Julie Kerner 35. Bruce and Julie Kerner own certain property in Washington County, Idaho that abuts land owned by Plaintiffs Milton and Lola Kerner. However, the property owned by Bruce and Julie Kerner does not abut and is not traversed by the subject right-of-way. Accordingly, the parties stipulate that Plaintiffs Bruce and Julie Kerner do not have an ownership interest in the subject right-of-way and cannot pursue a takings claim in this case. The parties therefore stipulate that the takings claim of Bruce and Julie Kerner shall be dismissed by order of the Court. Stipulations Applicable to Plaintiffs Steven R. and Elsie B. Shumway 36. On December 28, 1995, Plaintiffs Steven R. and Elsie B. Shumway were the owners of certain real property located in Adams County, Idaho. This property 10

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abuts or is traversed by the subject right-of-way. The Shumway's predecessorsin-title include William M and Martha L. Glenn and William Hartley. 37. On August 16, 1905, William M. and Martha L. Glenn conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Glenn deed"). The Glenn deed, which is attached hereto as Exhibit 11, was recorded in Washington County, Idaho. 38. The Glenn deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Glenn deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal. 39. On August 16, 1905, William Hartley conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Hartley deed"). The Hartley deed, which is attached hereto as Exhibit 12, was recorded in Washington County, Idaho at Book D, Page 178. 40. The Hartley deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Hartley deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal. Stipulations Applicable to Plaintiff Twila Harrison 37. On December 28, 1995, Plaintiff Twila Harrison was the owner of certain real property located in Washington County, Idaho. Portions of this property abut or are traversed by the subject right-of-way. Harrison's predecessors-in-title include George W. Hoffstatter. 11

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38.

On November 20, 1899, George W. Hoffstatter conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Hoffstatter deed"). The Hoffstatter deed, which is attached hereto as Exhibit 13, was recorded in Washington County, Idaho at Book 10, Page 403.

39.

The Hoffstatter deed was included in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Hoffstatter deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

Dated: May 30, 2007 Respectfully submitted, MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment & Natural Resources Division s/ Lary C. Walker LARY C. WALKER WALKER LAW OFFICE 232 East Main Post Office Box 828 Weiser, ID 83672 TEL: (208) 414-0390 FAX: (208) 414-0404 E-MAIL: [email protected] Attorney for Plaintiffs s/ Kristine S. Tardiff KRISTINE S. TARDIFF United States Department of Justice Environment & Natural Resources Division Natural Resources Section 53 Pleasant Street, 4th Floor Concord, NH 03301 TEL: (603) 230-2583 FAX: (603) 225-1577 E-MAIL: [email protected] Attorney for Defendant

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Appendix of Joint Exhibits to Revised Title Stipulations

Exhibit No. 1 2 3 4 5 6 7 8 9 10 11 12 13

Description Hash v. United States, No. CV-99-324-S-MHW, Mem. Decision (D. Idaho Nov. 21, 2001) Hash v. United States, No. CV-99-324-S-MHW, Mem. Decision (D. Idaho Aug. 18, 2006) Potter Deed Reed Deed Hallstrom Deed Male Deed Kilborn Deed Girling Deed Day Deed Jeffreys Deed Glenn Deed Hartley Deed Hoffstatter Deed