Free Notice of Directly Related Case(s) - District Court of Federal Claims - federal

Case 1:08-cv-00324-CCM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) TERRY and DIANE WINDER, et al., ) ) Plaintiffs, ) No. 08-324 L ) v. ) ) Judge Christine O.C. Miller UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) NORMAN and MIRNA JONES, ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) BESSIE SHIRA, et al., STAN and REBECCA BEECHAM, et al.,

No. 08-435 L

No. 08-453 L

No. 08-457 L

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NOTICE OF RELATED CASES Pursuant to Rules 40.2(a)(3) and 40.2(b) of the Rules of the United States Court of Federal Claims ("RCFC"), Defendant United States of America hereby files this notice of directly and indirectly related cases. Although the recently filed case of Fauvergue v. United States, No. 08-431 L (Fed. Cl.) (Smith, S.J.), is directly related in part and maybe indirectly related in part to the abovecaptioned cases, for the reasons stated herein, Defendant does not believe that consolidation of Fauvergue with these cases is appropriate at this time.1/ By Order dated June 24, 2008, the Court consolidated the four above-captioned cases pursuant to RCFC 42(a) and RCFC 42.1, and designated Winder v. United States, No. 08-324 L, as the lead case. See Order, filed June 24, 2008 (Winder, Doc. 13). There are approximately 102 plaintiffs named in the four complaints filed in the consolidated cases (collectively "the Winder Plaintiffs").2/ The Winder Plaintiffs allege that they are the fee owners of land in Jasper County, Missouri, that is subject to a railroad right-of-way. The Winder Plaintiffs allege that their ownership interest in the right-of-way was taken by operation of the National Trails System Act, 16 U.S.C. § 1247(d). See Pls'. Compl. ¶ 1, at 2-3 (Winder, Doc. 1). Specifically, the Winder Plaintiffs allege that, on June 21, 2002, the Surface Transportation Board ("STB") issued a Decision and Notice of Interim Trail Use ("NITU"), authorizing the Burlington Northern Santa Fe Railway ("BNSF") and a qualified trail sponsor to negotiate a railbanking and interim trail use agreement. Id. ¶ 5, at 4. The
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Defendant is not opposed to transfer or reassignment of Fauvergue to this Court if the assigned judges determine upon consultation under RCFC 40.2 that such a transfer or reassignment is appropriate.
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In the caption of Plaintiffs' complaints, Plaintiffs have grouped numerous individuals conjunctively, e.g., "Terry and Diane Winder." 2

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Winder Plaintiffs state that such an agreement was reached with respect to the 15.93-mile segment of the subject right-of-way located in Jasper County, Missouri, and that a non-profit Missouri corporation is now operating a recreational trail on the railroad corridor. The Winder Plaintiffs state that they are "seeking monetary compensation from the United States of America for the 5th Amendment taking of [their] reversionary interest [in the right-of-way] and the added encumbrance of the trail." Id. ¶ 1, at 3. On June 12, 2008, Plaintiff Earleen Fauvergue filed a separate complaint in the United States Court of Federal Claims. See Fauvergue v. United States, No. 08-431 L (Fed. Cl.) (Smith, S.J.). Fauvergue alleges that she is the fee owner of a parcel of land in Jasper County, Missouri, that is subject to the same railroad right-of-way at issue in Winder. See Fauvergue Compl. at 1, 3 (Doc. 1) ("Fauvergue Compl."). Like the Winder plaintiffs, Fauvergue alleges a taking of her ownership interest in the subject right-of-way by operation of the National Trails System Act, 16 U.S.C. § 1247(d). In addition to bringing a claim on her own behalf for the property she purports to own in Jasper County, Missouri, Fauvergue filed a motion for class certification seeking to represent a class of landowners along a 28.25-mile right-of-way between Columbus, Kansas, and Carthage, Missouri. See Fauvergue Mot. to Certify Class Action, filed June 18, 2008 (Fauvergue, Doc. 4). This 28.25mile stretch includes the 15.93-mile segment of the right-of-way located in Jasper County, Missouri that is the subject of the four consolidated cases now pending before this Court. See Fauvergue Compl. at 3. Because the claims in Fauvergue involve the same railroad right-of-way that is at issue in Winder, the cases are directly related within the meaning of RCFC 40.2(a), at least with respect to the 15.93-mile segment of the subject right-of-way that is located in Jasper County, Missouri. The remaining 12.32-mile segment of the subject right-of-way is located in Kansas. There

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are no named plaintiffs in any of the pending cases who allege to own land that abuts or is traversed by the Kansas segment of the subject right-of-way. Because the entire 28.25-mile right-of-way was the subject of the same NITU, and because Fauvergue is moving to certify a class action encompassing both the Missouri and the Kansas segments, the claims involving the Kansas segment maybe indirectly related to the claims involving the Missouri segment within the meaning of RCFC 40.2(b). Counsel of record for the United States in Winder has conferred with counsel of record for the United States in Fauvergue regarding this notice. Based on the information before it at this time, the United States submits that the decision as to whether Fauvergue should be consolidated with Winder should be deferred until after Defendant has responded to the Fauvergue Complaint, and after the Court has ruled on Plaintiff's Motion for Class Certification and any motions that may be filed by Defendant in response to the Fauvergue Complaint. Defendant's response to the Fauvergue Complaint is due by August 25, 2008, and Defendant has filed an unopposed motion for an extension of time requesting that the due date for its response to the Motion for Class Certification be extended from July 11, 2005, to August 25, 2008. Defendant's answer to the consolidated complaints in Winder is currently due on or before September 3, 2008. Accordingly, deferring a determination on further consolidation will not unduly delay the proceedings in Winder.

Dated: July 8, 2008

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Respectfully submitted, RONALD J. TENPAS Assistant Attorney General United States Department of Justice Environment & Natural Resources Division s/ Mark S. Barron MARK S. BARRON, Trial Attorney United States Department of Justice Environment & Natural Resources Division Natural Resources Section Ben Franklin Station, P.O. Box 663 Washington, D.C. 20044 Tel: (202) 305-0490 Fax: (202) 305-0506 [email protected]

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