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

Case 1:07-cv-00675-NBF

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JERRAMY PANKRATZ and ERIN PANKRATZ, Husband and Wife, and DONALD E. WEDELL and EVANGELINE WEDELL, Husband and Wife, and THAD J. COLLING, and THICK GON MAR, Trustee of the THICK GON MAR REVOCABLE TRUST, dated November 7, 1995, and MICHAEL A. WOODS and MARCIA J. WOODS, Husband and Wife, For Themselves and As Representatives of a Class of Similarly Situated Persons, Plaintiffs, vs. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 1:07-cv-675-NBF

NOTICE OF INDIRECTLY RELATED CASE PURSUANT TO RULE 40.2(b) COMES NOW the Plaintiff and, pursuant to Rule 40.2 (b) and files this Notice of Indirectly Related Case. Plaintiff states as follows: 1. Pursuant to the Rules of the United States Court of Federal Claims

("RCFC"), Rule 40.2 (b), "Whenever it appears to a party that there are two or more cases before the court that present common issues of fact and that transfer, consolidation, or the adoption of a coordinated discovery schedule would significantly promote the

Case 1:07-cv-00675-NBF

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efficient administration of justice, the party may file a Notice of Indirectly Related Case(s)." Pankratz v. United States and Biery v. United States Present Common Issues of Law And Fact on The Issue of The Governments' Liability 2. The immediate case Pankratz v. United States, 1:07-cv-00675-NBF

("Pankratz") is a claim brought pursuant to the Fifth Amendment and the Tucker Act by a number of owners of property in Butler County, Kansas seeking compensation for the property taken from them when the abandoned Butler County railroad easement was converted to interim trail use and preserved for possible reactivation as a railroad corridor under Section 8 (d) of the 1983 amendments to the National Trails System Act, 16 U.S.C. §1247(d) ("Trails Act"). 3. The named Plaintiffs in Pankratz are principally the owners of residential

and commercial properties in Butler County, Kansas and they seek to have the case made a class action pursuant to Rule 23 RCFC. 4. Likewise, the named Plaintiffs in Biery v. United States, 1:07-cv-00693-

LSM ("Biery") are principally the owners of residential and commercial properties in Reno County, Kansas and they seek to have the case made a class action pursuant to Rule 23 RCFC. 5. The Biery plaintiffs' claims are also brought pursuant to the Fifth

Amendment and the Tucker Act seeking compensation for the property taken from them when the abandoned Burlington Northern and Santa Fe Railway Company railroad easement was converted to interim trail use and preserved for possible reactivation as a railroad corridor under Section 8 (d) of the 1983 amendments to the National Trails System Act, 16 U.S.C. §1247(d) ("Trails Act"). -2-

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6.

Pankratz and Biery present common issues of law and fact on the issue of

what property interest was held by the railroads in the property that was subject to the abandoned right-of-way under the terms of the relevant easements and under Kansas law. 7. Much of the property owned by the Plaintiffs in both cases is such that it

lends itself to valuation through a representative parcel valuation approach similar to that property valuation approach agreed to by the parties and adopted by the Court in the Trails Act cases, Miller v. United States, 67 Fed.Cl. 542, Fed.Cl., August 31, 2005 (No. 03-2489L.), Illig v. United States, 67 Fed.Cl. 47, Fed.Cl., July 27, 2005 (No. 98-934L) and, Glosemeyer v. United States, 45 Fed.Cl. 771, Fed.Cl., January 14, 2000 (No. 93126L, 93-134L, 98-176L.) Consolidating Pankratz and Biery on the Common Issue of the Government's Liability Will Serve the Interest Of Cost-Efficient Administration of Justice 8. The Uniform Relocation Assistance and Real Property Acquisition

Policies Act of 1970, 42 U.S.C. §4654 (c)(2000) provides that the government's obligation to pay just compensation to property owners from whom it takes property includes the payment of, "reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of [the] proceeding. 9. The government must also pay delay damages to compensate the property

owners for the delay in paying the Plaintiff property owners the value of the property taken by the government. 10. Because of the government's obligation to pay the Plaintiffs' costs and

expenses of this action and because of the government's obligation to pay interest for the

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delay between the NITU date and the date of final payment, the government has a substantial interest in providing for the quick and cost efficient administration of both Pankratz and Biery. 11. The Plaintiffs in both Pankratz and Biery have been deprived of their

property since the NITU date and have not received "just compensation" for the value of the property that was taken from them at that time. 12. The Plaintiffs desire to have this matter resolved in a prompt and cost

efficient manner. 13. Providing for the prompt and cost-efficient administration of Pankratz and

Biery will serve the mutual interests of both the Plaintiffs and Defendant and conserve the judicial resources of this Court. 14. Consolidating Pankratz and Biery for resolution of the common issues of

Kansas law and fact related to determination of the legal interest held by the railroads in the plaintiffs' property and the government's liability for a taking of the property interest will serve the interest of efficient and cost-effective administration of justice and substantially reduce the cost and expense in both cases and conserve judicial resources. A similar approach of consolidating Trails Act taking cases involving similar issues of Missouri law was requested by the Defendant and ordered by the Court in Glosemeyer v. United States, No. 93-126L; Moore v. United States, No. 93-134L and Grantwood Village v. United States, No. 98-176L (See attached Exhibit A and B). 15. Once liability has been determined on common issues affecting the

railroad's interest in the property under Kansas law and the government's liability for a

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taking, it is efficient to for the property owners in both cases to proceed to the valuation stage under a plan similar to that referenced in paragraph 7 above. WHEREFORE, the Plaintiff requests that, pursuant to RCFC 40.2 (b) that Pankratz v. United States 1:07-cv-00675-NBF and Biery v. United States 1:07-cv-00693LSM be consolidated for resolution of the common issues of law and fact related to a determination of: (a) what legal interest the railroad held in the property that was the location of the abandoned railroad right-of-way under Kansas law; and, (b) whether the government is obligated to pay property owners "just compensation" for a taking of their property when an easement for interim public-access recreational trail use and an easement for the possible reactivation as a future railroad corridor was created by operation of the Trails Act. LATHROP & GAGE L.C.

DATE: November 15, 2007

By ___/s/ J. Robert Sears________ J. Robert Sears Mark F. Hearne, II 10 South Broadway, Suite 1300 St. Louis, MO 63102-1708 (314) 613-2500 (314) 613-2550 (fax) ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I hereby certify that on November 15, 2007, the foregoing was filed electronically with the Clerk of Court to be served by operation of the Court's electronic filing system upon the following: G. Evan Pritchard, [email protected] Natural Resources Section Environment & Natural Resources Division United States Department of Justice Attorneys for Defendant United States of America /s/ J. Robert Sears________

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