The opinion of the court was delivered by: District Judge McLaughlin
The Plaintiffs, a certified class pursuant to Fed. R. Civ Pro. 23(b)(3), consist of individuals who own land that abuts or is traversed by a recreational trail in Elk and Cameron Counties, Pennsylvania. In this action, brought pursuant to the "Little Tucker Act," 28 U.S.C. § 1346(a)(2), they contend that by virtue of the operation of the National Trails System Act, 16 U.S.C. § 1241 et seq., they have been deprived of reversionary property interests in various portions of the recreational trail without just compensation in violation of the Fifth Amendment of the United States Constitution. Presently pending before the Court are the parties' cross-motions for summary judgment.*fn1 For the reasons which follow, the Defendant's motion for summary judgment will be granted and the Plaintiffs' motion denied.
This case concerns a railroad right-of-way formerly operated by Allegheny & Eastern Railroad, Inc., ("A&E") in Cameron and Elk Counties, Pennsylvania. (Joint Statement of Facts, ¶ 1). The portion of the right-of-way at issue totals 18.9 miles in length and was originally constructed in 1864 by the Philadelphia and Erie Railroad Company. (Joint Statement, ¶ 3). A&E acquired its ownership interest in the right-of-way in 1985. (Joint Statement, ¶ 4). Following the acquisition, A&E did not utilize the line for common carrier freight services. (Joint Statement, ¶ 20). However, other railroad carriers occasionally used the line for special contract services through approximately late 2000. (Joint Statement, ¶¶ 21-22).
On August 8, 2003, A&E stated in an Environmental/Historic Report filed with the Surface Transportation Board ("STB")*fn2 that "[n]o service has been provided on this line by Applicant for over two years. Abandonment of the line will allow Applicant to salvage the track and materials. At this time, there appears to be no alternative to the proposed action." (Joint Statement, ¶ 23). A&E also noted that "[a]ll track removal work will be done on top of the road bed. Nothing beneath the road bed will be distrubed." A&E further stated that it would leave in place, unaltered, certain structures along the right-of-way, such as archways, culverts, and bridges. (Joint Statement, ¶ 24).
On September 11, 2003, A&E filed a Notice for Exemption of Abandonment seeking authorization from the STB to abandon rail service over the right-of-way. (Joint Statement, ¶ 7). The STB issued an exemption authorizing abandonment of the line, with the exemption set to become effective on October 31, 2003. (Joint Statement, ¶ 8). Prior to that date, however, Elk County and Cameron County each filed a request to "railbank" the railway corridor pursuant to Section 8(d) of the National Trails Systems Act, 16 U.S.C. § 1247(d) (hereinafter, the "Railbanking Act") (Joint Statement, ¶ 9).
The Railbanking Act, designed to preserve the country's rapidly disappearing railway corridor infrastructure for future rail service and energy efficient transportation uses, permits inactive railroad corridors to be used on an interim basis as trails. The Railbanking Act is triggered when a railroad desires to terminate its common carrier obligation to provide freight rail service on a line, an action requiring approval from the STB. When a qualified entity desires to negotiate with the railroad concerning the preservation of a corridor for future rail and interim trail use, it must request that the STB issue a railbanking order (known as a Certificate of Interim Trail Use ("CITU") or a Notice of Interim Trail Use ("NITU")) by filing a statement of willingness to assume legal or financial responsibility over the corridor until such time as it is needed again for rail service. 49 C.F.R. § 1152.29(a). Where a NITU or CITU is issued and a railbanking agreement is reached between a railroad and a trail sponsor, the corridor is "railbanked" and remains subject to the federal authority of the STB for so long as the trail use continues, and the corridor remains intact and potentially available for reactivated rail service. Birt v. STB, 90 F.3d 580, 583 (D.C. Cir. 1996).
In this case, the STB issued a NITU for the subject right-of-way on October 30, 2003, granting A&E and Elk and Cameron Counties 180 days within which to negotiate a railbanking and interim trail use agreement. (Joint Statement, ¶ 12). From 2003 through 2008, the parties sought and obtained numerous extensions of this negotiating window from the STB. (Joint Statement, ¶¶ 29-42). On November 7, 2006, in the midst of the ongoing negotiations, Elk County filed a notice with the STB indicating that the West Creek Recreational Trail Association ("WCRTA") had been substituted as the proposed trail sponsor. On November 15, 2006, A&E indicated that it had no objection to the substitution of the WCRTA as trail sponsor. (Joint Statement, ¶ 18). A&E eventually reached an agreement with the trail sponsor and the right-of-way was railbanked on or about September, 2008.
Plaintiffs advance two arguments in support of their contention that a "taking" has occurred. First, Plaintiffs contend that A&E's property interest in the railroad right-of-way would have been deemed to have been abandoned under state law but for the operation of the Railbanking Act.
Alternatively, Plaintiffs contend that the utilization of the right-of-way as a recreational trail exceeds the scope of the use permitted in some of the original conveyances resulting in a reversion of the Plaintiffs' property interests.*fn3
This matter is fully briefed and is now ripe for disposition. I address each of the Plaintiffs' contentions in turn below.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.
On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3rd Cir.1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3rd Cir.1993). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3rd Cir.1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out ... that there is an absence of evidence to support the nonmoving party's claims." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "There must ... be sufficient evidence for a jury to return a verdict in favor of the nonmoving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted." Arbruster v. Unisys Corp., 32 F.3d 768, 777 (3rd Cir.1994), abrogated on other grounds, Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231 (3rd Cir.1999).
Notably, "[t]he rule is no different where there are cross-motions for summary judgment." Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3rd Cir.2008). As stated by the Third Circuit, "'[c]ross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'" Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3rd Cir.1968)).
In Preseault v. United States, 494 U.S. 1, 22 (1990) ("Presault I"), the owners of a reversionary interest in a railbanked right-of-way challenged the constitutionality of the Railbanking Act as an invalid exercise of Congressional power and sought compensation on the grounds that it "takes private property without just compensation." Preseault I, 494 U.S. at 10. Although the Court rejected the Preseault's constitutional challenge, it acknowledged that the operation of the Railbanking Act might give rise to a takings claim if properly brought pursuant to the Tucker Act. Preseault I, 494 U.S. at 16. In a frequently cited concurrence, Justice O'Connor explained the circumstances under which a takings claim might be successfully advanced. In this regard, Justice O'Connor stated:
The scope of the [ICC's] authority to regulate abandonments, thereby delimiting the ambit of federal power, is an issue quite distinct from whether the Commission's exercise of power over matters within its jurisdiction effected a taking of petitioner's property. Although the Commission's actions may pre-empt the operation and effect of certain state laws, those actions do not displace state law as the traditional source of the real property interests. The Commission's actions may delay property owners' enjoyment of their reversionary interests, but that delay burdens and defeats the property interest rather than suspends or defers the vesting of those property rights. Any other conclusion would convert the ICC's power to pre-empt conflicting state regulation of interstate commerce into the power to pre-empt the rights guaranteed by state property law, a result incompatible with the Fifth Amendment.
The ICC may possess the power to postpone enjoyment of reversionary interest, but the Fifth Amendment and well-established doctrine indicate that in certain circumstances the Government must compensate owners of those property interests when it exercises that power. . . . [T]he existence of a taking will rest upon the nature of the state-created property interest that petitioners would have ...