Loveridge v. United States

Opinion

In the United States Court of Federal Claims No. 16-912L (Filed: September 18, 2020)

) PERRY LOVERIDGE, et al., ) ) Plaintiffs, ) ) v. ) ) RCFC 59(a); RCFC 54(b); THE UNITED STATES, ) Reconsideration; Rails-to-Trails; ) Oregon Law; Adjacency Defendant. ) )

Thomas S. Stewart, Kansas City, MO, for plaintiffs. Elizabeth G. McCulley, Kansas City, MO, of counsel.

David W. Gehlert, Environment and Natural Resources Division, United States Department of Justice, Washington DC, with whom was Jean E. Williams, Deputy Assistant Attorney General, for defendant.

ORDER GRANTING IN PART AND DENYING IN PART RECONSIDERATION AND ALLOWING FOR ADDITIONAL LIMITED DISCOVERY

FIRESTONE, Senior Judge.

Pending before the court in this Oregon Trails Act case is the Loveridge plaintiffs’

motion for reconsideration of this court’s June 22, 2020 opinion denying plaintiffs’

motion for partial summary judgment and granting the government’s cross motion

regarding twelve parcels where there is an intervening road between the plaintiffs’

property and the railroad’s right of way. Loveridge v. United States, 149 Fed. Cl. 64, 72-

77 (2020). The court held that these plaintiffs failed to show under Oregon law “that they

own more than to the centerline of the intervening road, street or pathway identified as a boundary in their deeds” and thus could not demonstrate that their parcels were adjacent

to the rail corridor, as required to demonstrate a taking. Id. at 77. The plaintiffs now

argue that “[a]lthough the [c]ourt correctly set forth and summarized the fundamental

aspects of the centerline presumption” under Oregon law, the court “applied the

presumption incorrectly on the adjacency and ownership issues.” Pls.’ Mot. at 1, ECF

No. 119. The plaintiffs also contend that regardless of whether the court properly denied

their motion for partial summary judgment, the court improperly granted the

government’s cross motion and should have allowed plaintiffs to obtain additional

evidence of ownership. Id. at 1, 13-14.

As discussed below, plaintiffs’ motion is GRANTED IN PART and DENIED IN

PART. The court denies reconsideration on the ground that the court incorrectly applied

Oregon law in its prior decision based on the record then before the court. However, the

court exercises its discretion to grant the plaintiffs’ alternative request for additional

discovery to establish whether plaintiffs’ parcels are adjacent to the rail corridor.

Following a period of limited discovery, the parties may file renewed motions for

summary judgment on this issue.

I. BACKGROUND

The facts of this case have been discussed at length in prior opinions, and the court

will only briefly repeat the relevant facts here. The plaintiffs claim they are entitled to

just compensation under the Fifth Amendment in connection with the creation of the

Salmonberry Trail in Oregon over a railroad right of way operated by the Port of

Tillamook Bay (“POTB”). The plaintiffs claim to own property underlying the POTB’s

2 railroad right of way and assert that the creation of the Salmonberry Trail gave rise to a

taking of their property. Loveridge, 149 Fed. Cl. at 68.

As relevant here, the plaintiffs argued in their prior motion for partial summary

judgment that they own the underlying fee to the centerline of the railroad right of way

for twelve parcels bounded by a road, street, or other pathway adjacent to the railroad

right of way by operation of the “centerline presumption” and its exception under Oregon

law. Id. at 72. The plaintiffs supported their claims with undisputed evidence of the

conveyance deeds granted by prior landowners to the railroad for the right of way

between 1900 and 1910, as well as documentation regarding the creation of a public road,

street or other pathway adjacent to the railroad’s right of way in the form of resolutions

providing notice to the public about the plan to construct the road and recommendations

that a road be established with damages paid to the abutting landowner. Id. The

government argued in its cross motion that under Oregon law the current landowners who

own property bounded by a road, street, or pathway own only to the centerline of the

road, street, or pathway and cannot claim any ownership of the railroad right of way. Id.

The court denied the plaintiffs’ motion for partial summary judgment on this issue

and granted the government’s cross motion.1 The court first explained that “Oregon

law’s centerline presumption provides that the adjacent landowners on either side of the

road each own the underlying fee to the centerline of the road.” Id. at 75. The court also

recognized an exception to the centerline presumption “where the dedicated road runs

1 The court assumed without deciding that the property interest conveyed to create the intervening road, street, or pathway was an easement. Loveridge, 149 Fed. Cl. at 74, 76-77. 3 between two tracts of land under different ownership and the road was wholly dedicated

from only one of the owners’ tracts,” in which case “the entire width of the road transfers

with the abutting property from which it was wholly dedicated.” Id. (quotation and

internal alterations omitted).

Applying Oregon law, the court determined that “plaintiffs have failed to show

that they own more than to the centerline of the intervening road, street or pathway

identified as a boundary in their deeds.” Id. at 77. This was because “the modern deeds

show that the property conveyed to the plaintiffs is bounded by the intervening road,” and

plaintiffs failed to “produce evidence,” such as conveyance instruments, “to show that the

land on the other side of the centerline of the road and directly adjacent to the railroad

right of way” – in other words, the entire land underlying the road – “was also conveyed

to them.” Id. The court explained that the exception to the centerline presumption did

not apply as to the road because the plaintiffs had “presented no evidence of two owners

at the time the roads were created,” and that “[w]ithout this evidence, it must be

presumed that the parcel closest to the railroad right of way is now owned by someone

other than the plaintiffs.” Id. In so holding, the court relied on BHL Properties LLC v.

United States, 135 Fed. Cl. 222, 228-29 (2017), which required the plaintiff to present

evidence that he owned the fee under the intervening road where the language of the

plaintiff’s deed described the road easement as the boundary of the property transferred.

The plaintiffs have now filed a motion for reconsideration of this decision on

adjacency. The plaintiffs argue that the court correctly articulated Oregon law but

misapplied the centerline presumption in this case. Pls.’ Mot. at 5-6. According to the

4 plaintiffs, by operation of the centerline presumption and its exception, “two distinct

parcels were created when the railroad’s right-of-way was created,” but “the centerline

presumption was not triggered when the road was constructed . . . because the entire

width of the road was transferred by the abutting landowner on that side.” Id. at 6. “As a

result,” plaintiffs argue, “the ultimate successor to” that abutting landowner – the

plaintiffs and parcels at issue here – “continued to own the underlying fee in the

intervening road and the underlying fee to one-half of the railroad’s right-of-way” under

Oregon law. Id. at 9. The fact that the modern deeds contain describe the road as a

boundary, the plaintiffs argue, does not “negate the necessity to apply the centerline

presumption when the right-of-way was constructed or the exception to the centerline

presumption when the road was constructed.” Pls.’ Reply at 6, ECF No. 124.

Alternatively, the plaintiffs argue that the court should not have granted the

government’s cross motion for summary judgment because if their argument is not

adopted, “there is a factual and legal dispute as to who owns the underlying fee in the

railroad’s right-of-way.” Pls.’ Mot. at 11-12. The plaintiffs contend that “the [c]ourt

should have allowed the [p]laintiffs to obtain chain of title evidence to provide additional

evidence of ownership or the [c]ourt could have reserved the issue for trial . . . .” Pls.’

Reply at 11.

The government responds that reconsideration is inappropriate because plaintiffs

have not raised any new arguments and have failed to demonstrate error in the court’s

decision. Def.’s Resp. at 3-7, ECF No. 123. The government contends that the court

properly followed the rationale of BHL Properties and that, because plaintiffs have had

5 discovery and failed to produce evidence to support their claims, the court properly

granted summary judgment in favor of the government on this issue. Id.

Oral argument was held on September 9, 2020.

II. LEGAL STANDARD

Plaintiffs move for reconsideration of an interlocutory order, which the court

considers under Rule 59(a)(1) and Rule 54(b) of the Rules of the United States Court of

Federal Claims (“RCFC”). “These rules articulate the understanding that courts possess

inherent authority to modify interlocutory orders prior to the entering of final judgment in

a case.” Martin v. United States, 101 Fed. Cl. 664, 670 (2011), aff’d sub nom. Fournier

v. United States, No. 2012-5056, 2012 WL 6839784 (Fed. Cir. Nov. 27, 2012). The

grounds for a court’s exercise of its authority to reconsider include the discovery of new

or different material evidence not presented in an earlier decision, an intervening change

in controlling legal authority, or when a prior decision is clearly incorrect and would

work a manifest injustice. Martin, 101 Fed. Cl. at 670. Reconsideration is “not intended,

however, to give an unhappy litigant an additional chance to sway the court.” Id. at 671

(internal quotation omitted).

The standard for reconsideration of an interlocutory order under RCFC 54(b) and

59(a)(1) has been described as “less rigorous” than the standards applicable to the

reconsideration of final judgments under RCFC 59(e). Martin, 101 Fed. Cl. at 670.

Reconsideration under RCFC 54(b) is available “as justice requires.” L-3 Commc’ns

Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48 (2011). “While the threshold for

reconsideration under RCFC 54(b) is imprecise, it certainly ‘leaves within [its] ambit . . .

6 a good deal of space for the [c]ourt’s discretion.’” Martin, 101 Fed. Cl. at 671 (quoting

Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). Asking “what justice requires

amounts to determining, within the [c]ourt’s discretion, whether reconsideration is

necessary under the relevant circumstances.” Farmers Coop. Co. v. United States, 100

Fed. Cl. 579, 581 (2011) (internal quotation omitted).

III. DISCUSSION

Applying these standards, the court denies the plaintiffs’ motion for

reconsideration on the issue of the court’s application of the centerline presumption and

its exception to the facts of this case, as the record currently exists. The plaintiffs merely

repeat arguments that were already considered by the court, again explaining their theory

regarding the operation of the centerline presumption and its exception on the parcels at

issue. These repeated arguments do not demonstrate that the court’s decision is “clearly

incorrect.” Martin, 101 Fed. Cl. at 670. As in plaintiffs’ prior briefing, plaintiffs’ current

reconsideration motion argues that the court should not have followed the rationale of

BHL Properties in determining whether the plaintiffs owned the entirety of the

intervening road, street or pathway and therefore whether they owned property adjacent

to the rail corridor. Pls.’ Mot. at 10 & n.13, 13 (“The fact is that BHL Properties . . . was

wrongly decided.”). According to plaintiffs, by failing to determine that the plaintiffs

must own the entire underlying road by operation of the exception to the centerline

presumption, the court has impermissibly created a “vacuum of ownership” as to “who

owns one-half of the railroad’s right-of-way on the side of the intervening road.” Pls.’

Reply at 8.

7 As explained in its June 22, 2020 decision, however, the court disagrees. It is the

plaintiffs’ burden to prove ownership of land abutting the railroad corridor in order to

demonstrate a taking has occurred. BHL Props., 135 Fed. Cl. at 229; Brooks v. United

States, 138 Fed. Cl. 371, 394 (2018) (“[I]t is plaintiffs’ burden to establish that their

property is adjacent to the railroad right-of-way.”). The court concluded that the

plaintiffs failed to do so, determining based on the record presented to the court that the

court could not “presume that the property underlying the entire road belongs to [the

plaintiffs] because it once belonged to a prior landowner where the modern deeds show

that the property conveyed to the plaintiffs is bounded by the intervening road.”

Loveridge, 149 Fed. Cl. at 77. Following the rationale of BHL Properties, the court held

that plaintiffs failed to produce evidence to support their preferred application of the

centerline presumption and its exception to the properties at issue. Plaintiffs’ mere

disagreement with this court’s reasoning and the court’s reliance on BHL Properties does

not warrant reconsideration of this issue. Res Rei Dev., Inc. v. United States, No. 15-

1256C, 2017 WL 280890, at *1 (Fed. Cl. Jan. 23, 2017) (“[M]ere disagreements with a

court’s reasoning are insufficient to warrant reconsideration under RCFC 59 . . . .”).

However, the court will exercise its discretion in these circumstances, see Farmers

Co-op, 100 Fed. Cl. at 581, to grant reconsideration for the limited purpose of allowing

the plaintiffs to conduct discovery to provide chain of title or other evidence supporting

their arguments that they own property adjacent to the subject rail line. The court

recognizes, as the government argues, that fact discovery has closed in this case and

agrees that it is plaintiffs’ burden to prove adjacency. Def.’s Resp. at 6-7. However, now

8 that the court has ruled that the court disagrees with plaintiffs’ presumed application of

Oregon law, the court deems it appropriate to allow the plaintiffs to obtain additional

evidence regarding adjacency for the twelve relevant parcels. The government has not

shown that it would be prejudiced by additional, limited discovery. Moreover, the court

has previously left similar ownership issues open following summary judgment briefing

where the record “lack[ed] any evidence regarding” ownership, but where “it appear[ed]

that such evidence could be produced.” Anderson v. United States, 147 Fed. Cl. 661, 688

& n.26 (2020). The court therefore grants the plaintiffs’ motion for reconsideration on

this limited basis only.

IV. CONCLUSION For the foregoing reasons, plaintiffs’ motion for reconsideration, ECF No. 119, is

GRANTED IN PART and DENIED IN PART. The parties shall submit by October 1,

2020 a joint status report proposing a limited discovery schedule in accordance with this

decision.

IT IS SO ORDERED.

s/Nancy B. Firestone NANCY B. FIRESTONE Senior Judge