Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:04-cv-01544-LMB

Document 71

Filed 04/16/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Filed electronically on April 16, 2007)

ELLAMAE PHILLIPS COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Case No. 04-1544-L Judge Lawrence M. Baskir

MOTION OF RAILS-TO-TRAILS CONSERVANCY FOR LEAVE TO FILE SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Pursuant to the Court's order filed April 13, 2007, Amicus Curiae Rails-to-Trails Conservancy ("RTC") moves for leave to file the attached brief pursuant to the Court's directive in a telephone conference call on March 13, 2007 calling for the supplemental briefs concerning the meaning of the ruling of the Federal Circuit in Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005) (hereafter, "Hash II") with respect to the right-ofway easements granted by the General Railroad Right-of-Way Act of 1875, codified at 43 U.S.C. §§ 934-939 ("the 1875 Act"), and the significance of that ruling for the issues now before this Court. RTC submitted the attached brief for filing on April 6, 2007 in accordance with the schedule established by the Court, but it was returned because it was not accompanied by a motion for leave to file and because it was not filed electronically.

Case 1:04-cv-01544-LMB

Document 71

Filed 04/16/2007

Page 2 of 3

First, RTC apologizes to the Court for its evident misunderstanding of the Court's previous orders. Although RTC did not participate in the conference call on March 13, 2007 and only learned of it afterwards, RTC had understood that the Court had invited further briefs on the meaning of the Federal Circuit's opinion in Hash II, and that no further motion from RTC was required to comply with the Court's request.1 RTC was also not aware that the Court, on March 29, 2007, had designated this case for electronic filing, not having received a copy of that order. RTC's counsel of record has now registered as a CM/ECF user with this Court. In the motion RTC filed on August 18, 2006 for leave to file a brief as amicus curiae in support of the United States, which the Court granted by Order dated October 23, 2006, RTC detailed its interest in the issues presented by this and other takings cases arising out of the Federal Railbanking Act, 16 U.S.C. 1247(d), and its extensive experience with those issues in other cases, including the Hash case. The scope of the easements granted to railroads by the General Railroad Right-of-Way Act of 1875, codified at 43 U.S.C. §§ 934-939, and whether railbanking causes an abandonment of those easements, are extremely important issues, not only to the Government but also to all supporters of the federal railbanking program, which is RTC's primary mission. With respect to the specific benefits that consideration of the attached brief may provide to the Court with respect to the meaning of the Federal Circuit's decision in Hash II, RTC was directly involved in that case, and submitted briefs to the Federal Circuit and attended the oral argument, and also submitted briefs to the United States District Court
RTC had the same understanding with respect to its first Supplemental Brief, which it filed on February 12, 2007 and which was filed in response to the Court's order of January 30, 2007, directing all "parties" to file supplemental briefs addressing three questions propounded by the Court. The Clerk's office acceptance of that filing led RTC to believe that no separate motion for leave to file was required to comply with the Court's request for supplemental briefs in the March 13 conference call.
1

2

Case 1:04-cv-01544-LMB

Document 71

Filed 04/16/2007

Page 3 of 3

in the remand proceedings and attended the oral argument before that court as well. RTC believes that its experience provides it with a knowledge of and perspective on the specific question posed by the Court that may be helpful to the Court's resolution of that question. RTC therefore respectfully requests that its brief on that question be accepted and considered. CONCLUSION For these reasons, RTC respectfully requests that this Court grant it leave to file that attached Second Supplemental Brief In Support of Defendant's Motion For Summary Judgment as amicus curiae.

Respectfully submitted, s/ Richard A. Allen ______________________ Richard A. Allen (Attorney of Record) Christina M. Wenzel Zuckert Scoutt & Rasenberger, L.L.P. 888 Seventeenth Street, N.W. Suite 700 Washington, D.C. 20006-3309 (202) 298-8660

Of Counsel: Andrea C. Ferster, General Counsel RAILS-TO-TRAILS CONSERVANCY 1100 17th Street, N.W., 10th Floor Washington, D.C. 20036 (202) 974-5142 Attorneys for Amicus Curiae Rails-to-Trails Conservancy April 16, 2007

3