Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00718-ECH

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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. ) _______________________________________ ) JOINT STATUS REPORT AND SCHEDULING PROPOSAL The parties submit this joint status report to inform the Court of their revised proposal regarding title and liability for certain segments of the right-of-way at issue in this case. I. Withdrawal and Substitution of Title Stipulations The parties previously filed a set of stipulations intended to resolve certain title-related issues in this case involving the interpretation of deeds under Idaho law. The parties' stipulations were intended to facilitate the resolution of this case while preserving the Plaintiffs' right and ability to appeal any adverse ruling with respect to the deed interpretation either through the related case of Hash v. United States, No. CV-99-324-S-MHW (D. Idaho), or through this case. However, based on their recent review of the status of both cases, the parties agree that their current stipulations do not adequately preserve that right of appeal in the manner they had intended. For that reason, the parties are proposing to withdraw their previously filed stipulations and to file a revised set of stipulations. The parties propose to accomplish this through (1) the filing of a joint motion to withdraw their previously filed stipulations and (2)

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filing their revised title stipulations. The parties intend to file both the joint motion and the revised stipulations by May 31, 2007. II. Further Proceedings Following Revision of Title Stipulations The parties' proposed withdrawal and substitution of stipulations will not affect all of their prior title stipulations. The status of the pending claims based on the parties' current proposal is summarized as follows. A. The Category 6 Deeds

The substantive changes in the parties' revised stipulations relate to six deeds by which the Railroad acquired its interest in the subject right-of-way which are comparable to the deeds in Hash deed category 6. These deeds and the claims that they relate to are as follows: Deed and Exhibit No. Reed Deed, Ex. 4. to Revised Title Stipulations Hallstrom Deed, Ex. 5 to Revised Title Stipulations Girling Deed, Ex. 8 to Revised Title Stipulations Day Deed, Ex. 9 to Revised Title Stipulations Glenn Deed, Ex. 11 to Revised Title Stipulations Hartley Deed, Ex. 12 to Revised Title Stipulations Hoffstatter Deed, Ex. 13 to Revised Title Stipulations Claim Blendu Blendu Fairchild Fairchild Shumway Shumway Harrison

The parties do not agree as to the nature of the interest acquired by the Railroad pursuant 2

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to these six deeds, nor as to the applicability of an interlocutory decision in Hash in which the district court interpreted several similar deeds. Accordingly, the parties propose to brief the question of whether the six deeds in question conveyed fee simple title or an easement to the Railroad as a matter of Idaho law. Because this same issue was briefed in the Hash case, the parties propose to compile copies of the Hash briefs into a joint appendix to be filed with the Court. The parties will then file supplemental briefs to address the interpretation of the six deeds at issue in this case. The parties propose to brief this issue in accordance with the following schedule: Joint Appendix of Hash Briefs to be filed by June 4, 2007. Opening Supplemental Briefs Regarding the Category 6 Deeds to be filed by Plaintiffs and Defendant by July 13, 2007. Reply Supplemental Briefs Regarding the Category 6 Deeds to be filed by Plaintiffs and Defendant by August 10, 2007. B. Category 4, 7 and 9 Deeds

There are four deeds at issue in this case that the parties have stipulated are comparable to the deeds in Hash deed categories 4, 7 and 9. The parties previously stipulated that under Idaho law, as interpreted and applied in Hash, these four deeds conveyed fee simple title to the strips of land described therein to the Railroad. The parties are modifying these stipulations by further stipulating that, because the Railroad acquired fee simple title to the segments conveyed by the Category 4, 7 and 9 deeds at issue in this case, the Plaintiffs who own land abutting these segments do not have an ownership interest in those segments and therefore cannot pursue a takings claim involving those segments. 3

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The category 4, 7 and 9 deeds in this case and the claims that they relate to are as follows: Deed and Exhibit No. Claim

Potter Deed, Ex. 3 to Revised Title Blendu Stipulations Male Deed, Ex. 6 to Revised Title Stipulations Kilborn Deed, Ex. 7 to Revised Title Stipulations Jeffreys Deed, Ex. 10 to Revised Title Stipulations Fairchild Fairchild Milton and Lola Kerner

In accordance with their revised stipulations, the parties jointly request that the Court issue an order dismissing the claims or portions of claims involving property conveyed to the Railroad by these four deeds for lack of ownership. A proposed order is attached. Entry of this order also renders Defendant's pending motion for partial summary judgment (Doc. 44) moot with respect to these claims or portions of claims involving property conveyed to the Railroad by the Category 4, 7 and 9 deeds identified above. C. Defendant's Pending Motion for Partial Summary Judgment

On March 9, 2007, Defendant filed a motion for partial summary judgment that encompasses the claims of Plaintiffs Dean and Velda Fairchild, Milton and Lola Kerner, Bruce and Julie Kerner, Steven and Elsie Shumway, Twila Harrison, and a portion of the claim of Plaintiffs Ron and Betty Blendu (Doc. 44). Pursuant to the Court's Order of May 10, 2007 (Doc. 49), Plaintiffs' response to Defendant's motion is due by June 15, 2007. The parties hereby agree that further briefing on Defendant's motion for partial summary judgment should be stayed with respect to the six Category 6 deeds pending the Court's 4

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resolution of the underlying title questions involving those deeds. This stay affects the portions of the claims of the Blendus, the Fairchilds, the Shumways and Twila Harrison that are based on the Category 6 deeds. In addition, in light of the revised stipulations regarding the Category 4, 7 and 9 deeds at issue in this case, including the parties' request that the Court enter an order dismissing the claims or portions of claims involving property conveyed to the Railroad by those deeds for lack of ownership, the portion of Defendant's pending motion for partial summary judgment that related to those deeds is moot. D. Just Compensation Proceedings

The parties propose to continue moving forward with just compensation proceedings as to the 1875 Act lands that are subject to the Court's Opinion of February 22, 2007 (Doc. 42). The next telephone status conference regarding the parties progress on this matter is scheduled for June 21, 2007, at 12:00 p.m. Eastern Daylight Time. See Order of May 11, 2007 (Doc. 50). III. Conclusion The parties are available to meet with the Court telephonically to discuss the revised proposal set forth herein. Alternatively, the parties respectfully request that the Court issue a scheduling order setting the various filing deadlines that the parties have agreed to and proposed herein.

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Dted: 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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