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HASH v. U.S.

United States District Court, D. Idaho
Jul 6, 2000
Case No. CV 99-324-S-MIW (D. Idaho Jul. 6, 2000)

Summary

In Hash v. United States, No. CV 99-324-S-MHW, 2000 WL 1460801, at *9, (D.Idaho, July 7, 2000), the court noted the Rules of Procedure for the Court of Federal Claims provides certification for opt-in classes only.

Summary of this case from Johnson v. U.S.

Opinion

Case No. CV 99-324-S-MIW

July 6, 2000


ORDER


Currently pending before the Court for its consideration is Plaintiffs' Motion for Class Certification (Docket #17), filed December 17, 1999. On February 18, 2000, the Court conducted a hearing on the motion with counsel for all parties appearing and participating. The Court has considered the arguments of counsel and has fully reviewed the legal briefing and other pertinent documents of' record and is now prepared to rule on the motion as follows.

I. Background

Plaintiffs each own an interest in land that once constituted part of a railroad corridor operated by the Idaho Northern and Pacific Railroad Company between Weiser and New Meadows, Idaho, but that has since been convened to interim use as a recreational trail (the "Weiser Trail") under the provisions of the National Trails System Act, 16 U.S.C. § 1241, et seq. (the "Rails-to-Trails Act"). Plaintiffs allege that the conversion of their property for interim trail use has deprived them of their rights to possession, control and enjoyment of their land and constitutes a taking for which they are entitled just compensation under the Fifth Amendment of the United States Constitution. Plaintiffs further allege that they have each sustained damage in the amount of $10,000 or less as a result of any alleged taking. This Court has original jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1346 (a)(2) (the "Little Tucker Act").

The Little Tucker Act provides in relevant part that:

(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(2)Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress
28 U.S.C. § 1346 (a)(2).

In 1983, Congress recognized that an ever-increasing number of the nation's railroad tracks were being abandoned. Therefore, Congress enacted the Rails-to-Trails Act in order to preserve or "railbank" rapidly diminishing railroad rights-of-way for future railroad use. Presault v Intersecue Commerce Commission, 494 U.S. 1, 5, 110 S.Ct. 914, 918, 108 L.Ed.2d 1 (1990); Moore v. United States, 41 Fed. Cl. 394, 396 (1998). Specifically, section 8(d) of the Rails-to-Trails Act, 16 U.S.C. § 1247 (d), authorizes the Interstate Commerce Commission ("ICC") to preserve existing railroad rights-of-way not currently in service for future railroad purposes by allowing interim use of the land as recreational trails. Presault, 494 U.S. at 6-7, 110 S.Ct. at 919; Moore, 41 Fed. Cl. at 396.

The ICC was abolished in 1995, and its responsibilities under section 8(d) of the Rails-to-Trails Act have been delegated to the Surface Transportation Board ("STB").

In enacting the Rails-to-Trails Act, Congress recognized that principles of state property law might allow reversion of the property to the abutting landowner(s). Property law in many jurisdictions provides that when a right-of-way is abandoned, the land reverts to the landowner, Presault, 494 U.S. at 8, 110 S.Ct. at 919-20; Moore, 41 Fed. CI. at 397. Therefore, in order to further the national policy of preservation and to facilitate the conversion from rails to trails, Congress expressly preempted state property law by providing in section 8(d) of the Rails-to-Trails Act that an interim use of a railroad right-of-way for trail use does not constitute an abandonment of the right-of-way for railroad use so long as the route remains intact for future railroad purposes. See 16 U.S.C. § 1247 (d) ("in the case of interim use of any established railroad rights-of-way . . . if such use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of way for railroad purposes."). The effect of this provision is to prevent property interests from reverting to adjacent land owners under state law, thus creating the potential that private property might be taken for public use. Presault, 494 U.S. at 8, 110 S.Ct. at 920; Moore, 41 Fed. Cl. at 397.

In 1990, the Supreme Court acknowledged that the language of section 8(d) of the Rails-to-Trails Act "gives rise to a takings question in the typical rails-to-trails case because many railroads do not own their rights-of-way outright but rather hold them under easements or similar property interests." Presault, 494 U.S. at 8, 110 S.Ct. at 919-20. The Presault Court declined to address whether the operation of section 8(d) of the Rails-to-Trails Act always constitutes a taking for which just compensation is due under the Fifth Amendment, Id. at 4, 110 S.Ct. at 918, holding instead that just compensation claims based upon rail-to-trail conversions must be adjudicated based upon the specific facts of each case. Id., 494 U.S. at 16, 110 S.Ct. at 924 ([U]nder any view of takings law, only some rail-to-trail conversions will amount to takings . . . . Some rights-of-way are held in fee simple . . . . Others are held as easements that do not even as a matter of state law revert upon interim use as nature trails."). The Presault Court further held that the Tucker Act, 28 U.S.C. § 1491 (a)(1), or Little Tucker Act, 28 U.S.C. § 1346 (a)(2), are the appropriate vehicles for pursuing such claims. Id. at 12-13, 110 S.Ct. at 921-22.

In the instant case, Plaintiffs submit that they are entitled to just compensation for property which has been taken from them by operation of the Rails-to-Trails Act. Specifically, Plaintiffs assert that when the Idaho Northern and Pacific Railroad was constructed, the railroad only obtained easements allowing it to occupy the railroad right-of-way between Weiser and New Meadows, Idaho, for railroad purposes. Plaintiffs further contend that when the railroad abandoned approximately 83 miles of its rail line in 1995, the easements were extinguished by operation of law. Thus, according to Plaintiffs, the conversion of their property to recreational trail use following the cessation of the railroad operation constituted a taking for which they are entitled just compensation under the Fifth Amendment of the United States Constitution and the Little Tucker Act, 28 U.S.C. § 1346 (a)(2).

In addition to asserting takings claims on their own behalf, Plaintiffs also seek to represent a trail-wide class consisting of

all persons who own an interest in land constituting part of the railroad corridor between Weiser and New Meadows, Idaho on which the Pacific and Idaho Northern Railway, Idaho Northern Pacific Railroad or the Union Pacific Railroad operated a railroad, and which corridor is now occupied or controlled for trail use by the Friends of the Weiser Trail through Trail Use Orders issued by the Surface Transportation Board pursuant to the National Trails System Act, 16 U.S.C. § 1247 (d), and who have been damaged in the amount of $10,000 or less by being deprived of their rights to possession, control, and enjoyment of their land as a result of such Trail Use Orders, or who waive claims exceeding $10,000 for such damages.

Amended Class Action Complaint (Docket #16), ¶ 23. Plaintiffs estimate that the proposed class consists of approximately 200 landowners, each of whom would have obtained full possession of his or her property upon abandonment of the rail line by the railroad were it not for the operation of the Rails-to-Trails Act.

The proposed class does not include "railroad companies and their successors in interest; persons who have filed, intervened, or choose to intervene or opt into separate lawsuits against the United States pursuant to 28 U.S.C. § 1346%(2) for compensation for the same interests in land; and persons who are judges and justices of any court in which this action may be adjudicated or to which it may be appealed." Amended Class Action Complaint (Docket #16), ¶ 23.

II. Motion for Class Certification

Plaintiffs move for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs assert that there are several reasons why this action is particularly suited for class resolution. First, Plaintiffs point out that for every Representative Plaintiff and for every proposed member of the class, compensation is claimed by reason of the operation of a single statute to a single rail line in a single state. Moreover, Plaintiffs contend that each Representative Plaintiff and each proposed class member have suffered the same adverse consequence as a result of the operation of the statute, i.e. they have been deprived of the use and possession of their land. Plaintiffs contend that under these circumstances, where the claims of the Representative Plaintiffs and those of the proposed class members are essentially identical, and where the Court will be required to apply the same principles of state and federal law to adjudicate the claims, the Representative Plaintiffs should be allowed to represent the trail-wide class in pursuing their takings claims against the United States. See Moore v. United States, 41 Fed. Cl. 394 (1998) (certifying a trail-wide class of 2,000 landowners whose property was burdened by a single recreational trail created on a single abandoned railway corridor pursuant to the Rails-to-Trails Act).

Defendant opposes class certification in this case. Defendant argues that there is no basis to certify a trail-wide class because Fifth Amendment takings claims are, by their nature, highly individualized and fact-specific inquiries unique to the individual landowner whose property has allegedly been taken. Hodel v Virginia Surface Mining Reclamation Association, 452 U.S. 264, 295, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981); Creppel v. United States, 33 Fed. Cl. 590, 598 (1995); Blaze Construction, Inc. v. United States, 27 Fed. Cl. 646, 657 (1993). Defendant argues that in order to determine whether the conversion of the railroad corridor to trail use constitutes a taking, the Court will be required to evaluate a number of fact-specific questions with respect to each parcel of property allegedly taken. See Swisher v. United States, 189 F.R.D. 638 (D. Kansas 1999) (declining to certify a nationwide class of landowners whose property was allegedly taken by operation of the Rails-to-Trails Act on grounds that the "action would be extremely difficult to manage because of the complex and individualized nature of the takings' inquiry."). Therefore, Defendant asserts that Plaintiffs' takings claims are ill-suited for class resolution.

In addition to the briefing submitted by the named parties to this action, the Court also has before it the briefs of two organizations that have been granted leave to participate as Amicus Curiae in the class certification determination. The Idaho Farm Bureau Federation supports class certification and has filed an Amicus brief in support of Plaintiffs' motion. The Rails-to-Trails Conservancy, on the other hand, opposes class certification and has filed an Amicus brief in support of the Defendant's position. The Court has given due consideration to each of these organization's respective positions in ruling on the class certification issue.

A. Legal Standard

The decision whether to grant or deny a motion for class certification lies within the broad discretion of the trial court. Jordan v. County of Los Angeles, 669 F.2d 1311, 1318 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). The Supreme Court has held that "[c]lass relief is `peculiarly appropriate' when the `issues involved are common to the class as a whole' and when they `turn on questions of law applicable in the same manner to each member of the class.'" General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 2557, 61 L.Ed.2d 176 (1979)). In such cases, class resolution promotes judicial economy and "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23." Id.

Class action suits are governed by Federal Rule of Civil Procedure 23. A party seeking class certification bears the burden of demonstrating that all of the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) are satisfied. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613-14, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997). Rule 23(a) contains four threshold prerequisites to the maintenance of a class action suit. Specifically, the rule provides that:

One or more members of a class may sue or be sued as representative parties on behalf of all only if(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a). A class action may only be certified if, after a rigorous analysis, the trial court is satisfied that Rule 23(a)'s numerosity, commonality, typicality and adequacy of representation requirements have been met. General Telephone, 457 U.S. at 161, 102 S.Ct. at 2372. Moreover, the court must be satisfied that a class-action is maintainable under at least one of the provisions of Rule 23(b). Amchem, 521 U.S. at 614, 117 S.Ct. at 2245.

Class certification is a procedural issue. Thus, in deciding whether an action should be certified as a class action, the trial court is generally not permitted or required to inquire into the merits of the underlying case. Blackie v. Barrack, 425 F.2d 891 (9th Cir. 1975). However, the Supreme Court has recognized that "the class determination generally involves considerations that are `enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Coopers Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (quoting Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963)). Therefore, it may sometimes "be necessary for the court to probe behind the pleadings before coming to rest on the certification question." General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982).

B. Discussion

a. Rule 23(a)(1) — Numerosity

The first requirement to finding that the Representative Plaintiffs can sue as representatives of all members of the proposed class is that the class must be "so numerous that joinder of all members is impracticable. Fed.R.Civ.P. 23(a)(1). "The determination of whether joinder of the members is impractical turns on the facts of each case, not solely on the number of members." Alvarado Partners, L.P. v. Mehta, 130 F.R.D. 673, 675 (D.Colo. 1990). Other factors, including the geographic location of the members and the relative case or difficulty of identifying members for joinder purposes, must also be considered. Id.; Ardrey v. Federal Kemper Ins., Co., 142 F.R.D. 105, 110 (E.D. Pa. 1992). Moreover, the Court may consider whether it would be financially feasible for individual claimants to institute separate suits in light of the value of the claims asserted. Jordan, 669 F.2d at 1319.

In the present case, it is first necessary to consider the size of the potential class. "Although the absolute number is not the sole determining factor, where a class is large in number, joinder will be impracticable. Jordan, 669 F.2d at 1319. Plaintiffs estimate that there are in excess of 200 individuals who own land traversed by the Weiser Trail and whose property was taken as a result of the conversion of the railroad right-of-way to interim trail use. Plaintiffs base this estimation on the fact that there are 192 separate parcels of land within the original rail corridor. Thus, Plaintiffs assert that a potential class of over 200 members exists and that this number is too large and unworkable for joinder purposes.

Defendant and Amicus Curiae Rails-To-Trails Conservancy dispute Plaintiffs' assertions that the size of the purported class makes joinder impracticable in this case. Both argue that the actual number of class members is, in all likelihood, smaller than 200. Specifically, Defendant argues that many of the purported class members likely own more than one parcel of land, as many of the parcels are quite small. Furthermore, Defendant argues that some class members could elect to opt-out of the class. However, Plaintiffs are not required to allege the exact number or identity of each class member. See Ardrey, 142 F.R.D. at 109 (citing Moskowitz v. Lopp, 128 F.R.D. 624, 628 (E.D.Pa. 1989)). It is therefore reasonable to infer from the facts of this case that a potential class of over 200 individuals exists.

In addition to the large class size, the Court must also consider the geographic location of the members and the relative case or difficulty of identifying members for joinder purposes. All potential members reside along an 83 mile stretch of abandoned rail corridor in a two county area in Idaho. Defendant argues that since the class members are readily identifiable landowners who reside in a defined geographic location, there is no reason why the proposed class members cannot be notified of the pending lawsuit and given an opportunity to join the suit as individually named plaintiffs. However, joinder need not be impossible, only impracticable. See Ardrey, 142 F.R.D. at 111. Plaintiffs estimate there are over 200 potential class members. Should a substantial portion of the potential class members seek joinder, the procedure would be inefficient, costly, and time consuming. Thus, joinder in this case would be impracticable.

In addition, the Court may also consider whether it is financially feasible for individual claimants to institute separate suits. Plaintiffs argue that considering the costs of litigation, it is highly unlikely that the proposed class members would be able to pursue their remedies individually, especially in light of the fact that the value of each member's claim is concededly $10,000 or less. However, Defendant argues that Plaintiffs have elected to restrict their claims and the claims of the proposed class members to $10,000 and have in a sense forum shopped. Defendant contends that if litigation expense is truly a concern, the named Plaintiffs could have filed this suit in the Court of Federal Claims, where there is no jurisdictional dollar limit on Fifth Amendment taking claims. In addition, Defendant argues that the number of active cases involving takings claims under the Rails-to-Trails Act suggest that it is not inconvenient or prohibitively expensive to try these cases on a more individual basis.

Despite Defendant's assertions to the contrary, the Court is persuaded that the proposed class members in this case would likely not pursue their claims individually, because the litigation expense would be greater than the Fifth Amendment taking claim that they might otherwise pursue. This finding is supported by Moore v. United States, 41 Fed. Cl. 394 (1998). In Moore, plaintiffs sought trail-wide certification of a class of 2,000 landowners whose reversionary interests in a railroad right-of-way were allegedly taken by operation of the Rails-to-Trails Act. In determining whether the class should be certified, the Moore court considered, inter alia, whether the damages allegedly suffered by the individual class members were too slight to be worth litigating separately. Id. at 400. The court noted that it was impossible at such an early stage in the litigation to determine the amounts of the individual member's various claims. Id. Nevertheless, the court concluded that "most of the claims [were] small enough that it [was] doubtful they would be pursued otherwise. Id. The court's determination was supported by the fact that only a handful of landowners along the trail filed individual actions for compensation. See id. The same is true of the case at bar.

Finally, the Court finds that Plaintiffs have not forum shopped by bringing this action in the United States District Court of the District of Idaho. The Court has been expressly vested with jurisdiction and venue over this action. The Little Tucker Act, 28 U.S.C. § 1346 (a) provides that "the district courts shall have original jurisdiction, concurrent with the Court of Claims" on all claims against the United States not exceeding $10,000. Defendant has offered no evidence that the Plaintiffs' claims exceed the jurisdictional limit. Furthermore, it is not improper for a citizen of the State of Idaho to file an action in the federal district court which services their state. The Court agrees with Plaintiffs that their choice of the forum nearest home by almost two thousand miles does not constitute forum shopping. Accordingly, the Court finds that Rule 23(a)(1) is satisfied.

2. Rule 23(a)(2) — Commonality

The commonality prerequisite of Rule 23(a)(2) is discharged if "there are questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). This provision does not require that all questions of law or fact raised by the dispute be common to the entire class. Hanlon v. Chrysler Corporation, 150 F.3d 1011, 1019 (9th Cir. 1998); Jordan, 669 F.2d at 1320. Rather the rule is easily satisfied where it is demonstrated that the "named plaintiffs share at least one question of fact or law with the grievances of the prospective class." Baby Neal v. Casey, 43 F.3d 48, 56 (3rd Cir. 1994) (citing 1 Newberg on Class Actions § 3.10, at 3-50 (1992)).

In this case, Plaintiffs assert that there are numerous questions of law and fact common to the proposed trail-wide class. In fact, Plaintiffs contend that these common questions actually predominate over individual issues in the case and therefore give rise to the maintenance of a class action suit pursuant to the requirements of Rule 23(b)(3) (providing in part that a suit may be maintained as a class action where "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members."). In this circumstance, the Rule 23(a)(2) commonality inquiry is deemed "subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class `predominate over' other questions." Amchem, 52 U.S. at 609, 117 S.Ct. at 2243. Therefore, the Court will defer discussion of the common issue question until such time as it addresses the Rule 23(b)(3) predominance inquiry at Section II.B.5.b. of this decision.

3. Rule 23(a)(3) — Typicality

In order to satisfy the typicality prerequisite of Rule 23(a)(3), Plaintiffs must demonstrate that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). The Supreme Court has repeatedly held that in order to comply with Rule 23(a)(3)'s typicality requirement, "a class representative must be part of the class and `possess the same interest and suffer the same injury' as the class members." East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929-30, 41 L.Ed.2d 706 (1974)). The Ninth Circuit has added that "representative claims are `typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." Hanlon, 150 F.3d at 1020.

Plaintiffs argue that the Rule 23(a)(3) typicality requirement is clearly satisfied in this case. In support of their position, Plaintiffs again rely on the Federal Claims Court's decision in Moore, supra. In Moore, the court determined that the claims of the representative plaintiffs were typical of the entire class because each representative plaintiff and potential class member owned a fee simple interest in land traversed by a single interim use recreational trail; and each representative plaintiff and potential class member was seeking just compensation under the Tucker Act and the Fifth Amendment for a taking accomplished by operation of the Rails-to-Trails Act. Moore, 41 Fed. Cl. at 399. Plaintiffs contend that in this case, as in Moore, the Representative Plaintiffs are members of the proposed class in that they each own an interest in property traversed by the Weiser Trail. Plaintiffs further contend that the interests of the Representative Plaintiffs are coextensive with those of the proposed class and that each has suffered the same injury, i.e. a taking by operation of the Rails-to-Trails Act. Therefore, Plaintiffs assert that the typicality requirement has been met. Defendant disagrees.

Defendant argues that the typicality requirement is not satisfied here because Plaintiffs have failed to establish that the Representative Plaintiffs possess the same interest as the class members they seek to represent. Specifically, Defendant points out that the Representative Plaintiffs own only four of the 192 parcels abutting the Weiser Trail. Plaintiffs' supporting papers indicate that the railroad acquired its interest in two of those parcels by warranty deed, and that it acquired its interest in the other two parcels pursuant to a federal land grant under the Railroad Act of 1875, 43 U.S.C. § 934. (Plaintiffs' Exhibit 5: Affidavit of Gordon Anderson, ¶¶ 8-12). Defendant submits that Plaintiffs have failed to demonstrate that these methods of conveyance are truly typical among the entire proposed class. In fact, Defendant points out that the railroad actually acquired its interests in the 192 parcels through several different methods of conveyance: (1) federal land grants; (2) warranty deeds; (3) quitclaim deeds; (4) adverse possession; (5) contracts; and (6) court order. (See Plaintiffs' Exhibit 6: Schedule of "Lands Owned or Used for Purposes of a Common Carrier"). Defendant argues that it is an oversimplification for Plaintiffs to assert that the railroad only obtained an easement on each of the 192 parcels despite the method of conveyance. Defendant argues that in actuality, the railroad may have acquired an easement or some greater property interest such as a fee simple interest for each of the 192 parcels along the right-of-way. Thus, Defendant maintains that it will be necessary for the Court to examine each individual conveyance and subject it to scrutiny under either Idaho or federal law to determine whether a taking has occurred.

Defendant also argues that Plaintiffs' reliance on Moore is misplaced. Defendant contends that there is a critical distinction between the opt-out class action proposed by Plaintiffs in this case and the opt-in class action certified by the court in Moore. Specifically, Defendant argues that by certifying an opt-in trail-wide class, the Moore court was not purporting to make a representative determination whether the railroad acquired a fee simple interest or merely an easement in its rights-of-way. Rather, the Moore Court determined that the precise nature of the property interests would be explored by examining the four corners of each conveyance and applying Missouri law. Moore, 41 Fed. Cl. at 399.

The Court has considered the arguments of both parties and finds that Plaintiffs have satisfied the typicality requirement under Rule 23(a)(3). In comparing the claims of the proposed class with the class representatives, the Court finds significant similarities. As the Plaintiffs note, each Representative Plaintiff and potential class member claims ownership of an interest less than $10,000 in property traversed by the Weiser Trail. in addition, each has claimed a taking by operation of the Rails-to-Trails Act, and is seeking just compensation under the Little Tucker Act and the Fifth Amendment. Therefore, the Court is convinced that the interests of the Representative Plaintiffs are coextensive with those of the proposed class.

Defendant argues that the actual interests owned by each potential class member is not known and that it will be necessary for the Court to examine each individual conveyance in order to determine whether a taking has occurred, thus destroying typicality. However, the Court is unpersuaded by Defendant's argument. While some individual inquiry may be necessary with respect to the takings issues, this need not occur until after class certification, for reasons set forth as Section II.B.5.b. of this decision. Furthermore, the individual inquiries should not be an overly burdensome task for the Court, because compensation is claimed by reason of the operation of a single statute to a single rail line in a single state for every member of the class.

Finally, despite Defendant's assertion to the contrary, Plaintiffs reliance on Moore is not misplaced. In fact, as Plaintiffs point out, the facts and central law underlying this action compel a result consistent with the holding of Moore. Defendant argues that Moore is distinguishable from the instant case on the basis that the Moore case involved an "opt-in" class. However, the Court does not find this significant. The Moore decision did not hinge on whether the class was an opt-in or an opt-out class. Under the Rules of Procedure for the Court of Federal Claims, the only class that may be certified is an opt-in class. See Cooke v. United States, 1 Cl. Ct. 695, 697 (1983). Therefore, the Moore court did not reject an opt-out class, it simply did not have the authority to grant it. Furthermore, in certifying a trail-wide class, the Moore court applied Rule 23 factors which apply here. Thus, for the above reasons, the Court finds that the typicality requirement of Rule 23(a)(3) is satisfied in this case.

4. Rule 23(a)(4) — Adequate Representation

The final prerequisite of Rule 23(a) is that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). "The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 2250, 138 L.Ed.2d 689 (1997) (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-58, n. 13, 102 S.Ct. 2364, 2370-71, n. 13, 72 L.Ed.2d 740 (1982)). Accordingly, there are two things Plaintiffs must demonstrate in order to satisfy the adequacy requirement of Rule 23(a)(4). First, Plaintiffs must show that the Representative Plaintiffs and their counsel do not have any conflicts of interest with the other class members. Hanlon, 150 F.3d at 1020. Second, Plaintiffs must demonstrate that the Representative Plaintiffs and their counsel will prosecute the action vigorously on behalf of the class. Id.

In this case, Plaintiffs argue that the absent class members are more than adequately represented by the Representative Plaintiffs. Again, Plaintiffs contend that the interests of the Representative Plaintiffs and those of the class are similar because each of their property has been taken pursuant to the Rails-to-Trails Act. Furthermore, Plaintiffs point out that Plaintiffs' counsel have had years of experience litigating class actions and have successfully litigated numerous similar proceedings involving rights-of-way property issues. Therefore, Plaintiffs contend that the adequacy requirement of Rule 23(a)(4) is satisfied.

In response, Defendant argues that Plaintiffs have once again oversimplified the issue. Defendant contends that the "complex, individualized, and highly fact-specific nature of the takings inquiry" negates the ability of the Representative Plaintiffs to adequately represent the class. Defendant asserts that at some point during the litigation, findings with respect to some class members that are not identical to findings for the Representative Plaintiffs will cause the interests of the parties to diverge. The Court disagrees.

Having reviewed the pleadings in this case, the Court finds that the Representative Plaintiffs will fairly and adequately protect the interests of the class. As mentioned above, the Court is of the opinion that the interests of the Representative Plaintiffs are coextensive with those of the proposed class. The Defendant has not shown that Plaintiffs hold a position in which their interests will be in conflict with the representation of other class members' interests. Again, any individual inquiry that may be necessary to determine the takings issues, need not occur until after the class certification has been certified and all of the common issues are tried. In any event, the only divergence likely to occur is that some purported class members will find that they do not meet the qualifications of the class definition or will not be entitled to receive class benefits, in which case they would no longer be members of the class. Furthermore, Plaintiffs have demonstrated that their counsel have had years of experience in litigating class actions and takings issues. Therefore, the requirements of Rule 23(a)(4) are satisfied.

5. Rule 23(b)

In addition to demonstrating that all of the prerequisites of Rule 23(a) are met, Plaintiffs must also establish that class certification is appropriate under either Rule 23(b)(1), (2) or (3). In this case, Plaintiffs assert that this action satisfies the requirements of both Rule 23(b)(1) and Rule 23(b)(3). The Court will address each of these provisions in turn.

a. Rule 23(b)(1)

Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class," or would "as a practical matter be dispositive of the interest" of nonparty class members "or substantially impair or impede their ability to protect their interests." Fed.R.Civ.P. 23(b)(1)(A) and (B). The Supreme Court has explained that, "Rule 23(b)(1)(A) `takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners).'" Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 2245 (1997) (citation omitted). While "Rule 23(b)(1)(B) includes, for example `limited fund' cases, instances in which numerous persons make claims against a fund insufficient to satisfy all claims." Id. (quoting Fed R. Civ. 23 advisory committee's notes (1966)).

Plaintiffs assert that their claims against the United States satisfy the requirements of both subsections of Rule 23(b)(1). First, Plaintiffs contend that the risk of inconsistent judgments here is great. Plaintiffs argue that if each of the 200 landowners were to bring separate individual suits against the United States, the United States would be at risk of having different standards of liability apply to the very same right-of-way corridor. Therefore, resolution of class members' and the Government's rights and liabilities concerning interim trails must be resolved in a single proceeding and the requirements of Fed.R.Civ.P. 23(b)(1)(A) are satisfied. Second, Plaintiffs argue that the requirements under Fed.R.Civ.P. 23(b)(1)(B) are satisfied because actions brought elsewhere by other landowners could substantially impair the ability of the Plaintiffs here and other landowners not parties to those actions to protect their interests.

Defendant disagrees. Defendant again argues that each individual taking claim requires an individual, fact-intensive inquiry. Defendant argues that while a decision on any one or more of these issues in any given case may provide guidance to the courts and to the United States in other future cases, there is little risk that individual adjudication of these issues will "establish incompatible standards of conduct" for the United States. Defendant contends that these same reasons make it unlikely that the resolution of any single claim or case will be entirely dispositive against any of the proposed class members in the other future cases. Furthermore, Defendant argues that stare decisis and the ability of parties to appeal any inconsistent legal determinations will help minimize the possibility of inconsistent legal determinations. Finally, Defendant asserts that with respect to Rule 23(b)(1)(B), it should be readily apparent that this case is not analogous to the "limited fund" cases that are the focus of this subsection.

The Court finds that the requirements of Rule 23(b)(1) are satisfied. The Court agrees with the Plaintiffs, that should 200 landowners bring separate individual suits against the United States, the United States would be at risk of having different standards of liability apply to the very same right-of-way corridor. While stare decisis and the ability to appeal may help to minimize the possibility of inconsistent legal determinations, the risk is still great. For example, for each individual landowner, the Court will be required to determine whether there was a taking and if so, when that taking occurred. The Court will then have to determine what interest was taken and the value of that interest. Common questions require the application of common legal standards. If the class members' claims were adjudicated separately, there would be a risk of inconsistent deed construction, valuation, etc. Moreover, the individual landowners should not have to go through burdensome appellate process to obtain consistent results, when a result can be reached in one action. In addition, separate actions by individual landowners could substantially impair the ability of the Plaintiffs here and other landowners not parties to those actions to protect their interests.

Therefore, the Court finds that class certification is appropriate pursuant to 23(b)(1). However, even assuming that the Court were to find that Plaintiffs had not satisfied requirements of 23(b)(1), the Court would nevertheless find that class certification is appropriate under Rule 23(b)(3).

b. Rule 23(b)(3)

"To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must "predominate over any questions affecting only individual members'; and class resolution must be `superior to other available methods for the fair and efficient adjudication of the controversy.'" Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615 177 S.Ct 2231, 2245-46, 138 L.Ed.2d 689 (1997). "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Id. at 623, 177 S.Ct. at 2249.

Plaintiffs argue that the Rule 23(b)(3) requirements are clearly satisfied. First, Plaintiffs note the commonality of the claims of all class members. The entire class suffered the taking of their property along the rail corridor formerly operated by the Idaho Northern and Pacific Railroad by the United States as a result of the operation of the Rails-to-Trails Act. Plaintiffs assert that the prevalence of these common issues outweigh any individual concerns.

Plaintiffs again rely on Moore to support their position. In Moore, the court held that common legal issues predominated over separate factual inquiries, despite the government's argument that the claims of each property holder "must be examined on a fact-by-fact basis and that these issues overshadowed the common legal issues." 41 Fed. Cl. at 398. The Moore court applied Missouri state law and found that conveyances to a railroad for a right-of-way carry "at least a presumption that grants of these types convey only an easement for a right-of-way, and not, as defendant suggests, a fee." Id. As a result, the court reasoned that "Missouri law appears to minimize most factual differences between the conveyances, creating essentially the same interest in the railroad." Id. at 399. Thus, the court held that "the common legal question of the effect of the [Rails-to-Trails Act] appears to outweigh the factual differences." Id.

Plaintiffs contend that the reasoning and holding of the Moore court is directly applicable in the instant case. Plaintiffs assert that Idaho law holds that right-of-way conveyances to railroads are limited conveyances and the railroad's interests in the rights-of-way cease when the corridor is no longer used for railroad purposes. See Oregon Short Line R.R. Co. v. City of Mountain Home, 93 Idaho 494, 496, 465 F.2d 105, 107 (1990). Thus, application of Idaho law will minimize most factual differences between conveyances and demonstrate that questions of law or fact common to the members of the class predominate over any questions affecting only individual members.

Next, Plaintiffs argue that even if individual inquiries have to be made with respect to individual title issues, these claims do not need to be resolved before common issues are tried. The Plaintiffs point to several class action cases in which individual title issues did not have to be tried first. See CSX Transportation Inc. v. Clark, 646 N.E.2d 1003 (Ind.Ct.App. 1995); CSX Thansportation, Inc. v. Rabold, 593 N.E.2d 1277 (Ind.Ct.App. 1992); Moore v. United Stales, 41 Fed. Cl. 394 (1998). Specifically, in Moore, the court certified the class and subsequently deferred ruling on issues regarding individual plaintiffs' interests until it considered predominant common issues of liability. Plaintiffs contend that the prevalence of common issues in this case, like those cases cited above, requires similar action.

Finally, Plaintiffs argue that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Plaintiffs contend that if each individual landowner had to bring a separate action, such process would involve hundreds of separate lawsuits. In addition the Plaintiffs note that the potential class consists of readily identifiable private landowners located in a defined geographic area, which creates a situation amenable to providing notice.

Defendant disputes Plaintiffs' assertions that Rule 23(b)(3) has been satisfied. Defendant argues that in order to determine whether the conversion of the railroad corridor to trail use constitutes a taking, the Court will be required to evaluate a number of fact-specific questions with respect to each parcel of property allegedly taken. See Swisher v. United States, 189 F.R.D. 638 (D. Kansas 1999). Defendant contends that the Court must review each deed or other instrument, the governing state law at the time of the original conveyance, and the facts and circumstances of the transaction. See Preseault, 100 F.3d at 1533-34; Moore, 41 Fed. Cl. at 397; Swisher 198 F.R.D. at 641. In Swisher, the court refused to certify a nationwide class of landowners whose property was allegedly taken by operation of the Rails-to-Trails Act on grounds that the "action would be extremely difficult to manage because of the complex and individualized nature of the takings inquiry." See Swisher, 189 F.R.D. at 643. Therefore, Defendant asserts that Plaintiffs' takings claims are ill-suited for resolution by means of an opt-out class action, and that fact-specific issues will predominate over any common issues in this case.

Defendant also refutes Plaintiffs' reliance on Moore, Defendant notes that while the Moore court certified a trail-wide class, it nevertheless acknowledged that it would still have to "examine the four corners of the conveyance" to the railroad for each parcel of property along the trail and apply Missouri law to "ascertain the nature and scope of the property interest conveyed." See Moore, 41 Fed. Cl. at 389-399. Defendant contends that the certification of an opt-in class in the Moore case, where the fact-specific inquiries will still be made on a claim-by-claim basis, does not support certification of this action, where Plaintiffs want the Court to decide such matters on a representative basis without regard to the specific facts of each claim.

Finally, Defendant contends that a class action is not superior to all other methods of adjudicating the claims of the proposed members. Defendant asserts that the core liability issues in these cases are individual, fact-specific issues that are ill-suited for resolution on a representative basis. In addition, Defendant argues that there is no indication that the denial of Plaintiffs' proposed trail-wide class action will prevent the class members from pursuing their claims on a more individual basis.

In the present case, the Court finds that the requirements of Rule 23(b)(3) are satisfied. First, questions of law or fact common to the members of the class predominate over any questions affecting only individual members. As noted in Plaintiffs' brief, this action was brought as the result of the uniform application of a single federal statute to a single rail line. Each member of the proposed class claims a taking of their property along the rail corridor formerly operated by the Idaho Northern and Pacific Railroad by the United States as a result of the operation of the Rails-to-Trails Act. Thus, each class member has virtually the same claims against the Defendant and must litigate and resolve similar issues.

Defendant argues that the question of whether a parcel of property has been taken as a result of an order allowing railbanking and interim trail use is a "complex and individualized" inquiry. Def. Mem. at 17. While individual inquiries may be necessary to determine individual issues, these claims do not need to be resolved before the prevalent common issues. This finding is supported by Moore. The Moore court rejected the Government's argument that parcel-by-parcel title determinations prevent any adjudication of common issues. Instead, the court certified the class and subsequently deferred ruling on issues regarding the individual plaintiffs' interests in the right-of-way until it considered common issues of liability. The common issues decided in Moore included; (1) whether the legal standards of abandonment had occurred; (2) whether the railroad easements that had burdened the class members' land were extinguished; (3) whether trail use on an interim basis constituted a railroad purpose; (4) whether the railbanking purpose is a railroad use; and finally (5) whether the Government's actions under the Rails-to-Trails Act constituted a taking of class members' land. The Court agrees with Plaintiffs that the common issues the Moore court resolved on summary judgment demonstrate the prevalence of common issues in this case as well as that case.

While Defendant has cited a class action decision in opposition to class certification here, Swisher v. United States, that case is distinguishable. In Swisher, the court was asked to certify a nationwide class. The court explained that in order to evaluate the railroad's property interest in each right-of-way the court would have had to review the governing state law of each separate state at the time of the conveyance. See id. at 641. Thus, the differing state laws of as many as fifty jurisdictions would govern issues in the case, and moreover the facts involved railbanking by different railroads at different times for different trails. The court determined that the Kansas plaintiff had not shown that her deed, Kansas state law, or the circumstances of the conveyance of her land were typical of the claims of the entire nationwide class. Id.

In the present case, class certification is much more appropriate. Plaintiffs seek only to represent a single trail-wide class in a single state. Each class member claims a taking as a result of the uniform application of a single federal statute to a single rail line. The class also shares in common the identical nature and date of taking by the Government. Therefore, should individual inquiries be necessary after common issues are adjudicated, the task should not be overly burdensome.

The Court also finds that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. As the Plaintiffs note, if each individual landowner had to bring a separate action, the process could involve hundreds of separate lawsuits. In addition, should a substantial portion of the potential class seek joinder, the procedure would be inefficient, costly, and time consuming. The core liability issues in this case are common to all class members. Therefore, Rule 23(b)(3) is satisfied.

Conclusion

Based on the foregoing analysis and pursuant to Rule 23(a) and (b), the Court finds that class certification is appropriate in this case. Therefore, the Plaintiffs' Motion for Class Certification will be granted.

ORDER

Based upon the foregoing, the Court being fully advised in the premises, IT IS HEREBY ORDERED that:

(1) Plaintiffs' Motion for Class Certification (Docket #17) is GRANTED.
(2) This action may be prosecuted by Plaintiffs Robert and Gerlene Hash, William Don Lakey and Nancy Hawkins, on behalf of themselves and all others similarly situated. The Court certifies that the appropriate Class consists of all persons who own an interest in land constituting part of the railroad corridor between Weiser and New Meadows, Idaho on which the Pacific and Idaho Northern Railway, Idaho Northern and Pacific Railroad or the Union Pacific Railroad operated a railroad, and which corridor is now occupied or controlled for trail use by the Friends of the Weiser Trail through Trail Use Orders issued by the Surface Transportation Board pursuant to the National Trails System Act, 16 U.S.C. § 1247 (d), and who have been damaged in the amount of $10,000 or less by being deprived of their rights to possession, control, and enjoyment of their land as a result of such Trail Use Orders, or who waive claims exceeding $10,000 for such damages. Excluded from this Class are railroad companies and their successors in interest; persons who have filed, intervened, or choose to intervene or opt into separate lawsuits against the United States pursuant to 28 U.S.C. § 1346 (a)(2) for compensation for the same interest in land, and persons who are judges and justices of any court in which this action may be adjudicated or to which it may be appealed.
The Court designates Plaintiffs Robert and Gerlene Hash, William Don Lakey and Nancy Hawkins to be the representatives of the class, and further appoints counsel for Plaintiffs Robert and Gerlene Hash, William Don Lakey and Nancy Hawkins as class counsel.
(3) Plaintiffs must advise Defendant within 10 days how they intend to provide notice to the proposed class. Further, Plaintiffs are to submit to Defendants the proposed notice which should address at a minimum the requirements of 23(c)(2). Individual notice shall be given to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the Court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does request exclusion may, if the member desires, enter an appearance through counsel.
In addition, Plaintiffs must conspicuously advise the proposed class member that the maximum claim that can be pursued through this class action for any taking of their land under the Rails-to-Trails Act is $10,000.
(4) A status conference will be scheduled in approximately 20 days by the Court's clerk, at which time the Court will review with the parties, the notification process and the proposed notice.


Summaries of

HASH v. U.S.

United States District Court, D. Idaho
Jul 6, 2000
Case No. CV 99-324-S-MIW (D. Idaho Jul. 6, 2000)

In Hash v. United States, No. CV 99-324-S-MHW, 2000 WL 1460801, at *9, (D.Idaho, July 7, 2000), the court noted the Rules of Procedure for the Court of Federal Claims provides certification for opt-in classes only.

Summary of this case from Johnson v. U.S.

In Hash v. United States, No. CV 99-324-S-MHW, 2000 WL 1460801, at *9, (D.Idaho, July 7, 2000), the court noted the Rules of Procedure for the Court of Federal Claims provides certification for opt-in classes only.

Summary of this case from Johnson v. United State
Case details for

HASH v. U.S.

Case Details

Full title:ROBERT HASH and GERLENE HASH, WILLIAM DON LAKEY and NANCY HAWKINS, for…

Court:United States District Court, D. Idaho

Date published: Jul 6, 2000

Citations

Case No. CV 99-324-S-MIW (D. Idaho Jul. 6, 2000)

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