Sauer West LLC v. United States

United States Court of Appeals
for the Federal Circuit
______________________
SAUER WEST LLC, ET AL.,
Plaintiffs-Appellants
MAPLEWOOD ACRES, INC., RONALD KLEIN,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1114
______________________
Appeal from the United States Court of Federal Claims
in No. 1:12-cv-00340-RTH, Judge Ryan T. Holte.
______________________
Decided: August 14, 2025
______________________
REED W. RIPLEY , Stewart, Wald & Smith, LLC, Kansas
City, MO, argued for plaintiffs-appellants. Also repre-
sented by T HOMAS SCOTT STEWART .
BRIAN R. HERMAN, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also rep-
resented by T ODD K IM .
______________________
Case: 24-1114 Document: 34 Page: 1 Filed: 08/14/2025

-- 1 of 14 --

SAUER WEST LLC v. US 2
Before D YK, SCHALL , and CHEN, Circuit Judges.
D YK, Circuit Judge.
Plaintiffs, landowners in Colorado, brought suit
against the United States, seeking compensation for an al-
leged temporary taking pursuant to the National Trail Sys-
tems Act, 16 U.S.C. § 1247(d), based on the issuance of a
Notice of Interim Trail Use (“NITU”) by the Surface Trans-
portation Board (“STB”). The Court of Federal Claims
(“Claims Court”) granted the government’s motion for sum-
mary judgment, concluding that the plaintiffs failed to
prove that the issuance of the NITU in the circumstances
was the cause of a taking. See Sauer W., LLC v. United
States, 168 Fed. Cl. 49, 83 (2023) (“Sauer I”). We affirm.
BACKGROUND
I
The federal government has regulated the nation’s rail
system since the Interstate Commerce Act of 1887, ch. 104,
24 Stat. 379. See Chicago & N.W. Transp. Co. v. Kalo Brick
& Tile Co., 450 U.S. 311, 318 (1981). In the Transportation
Act of 1920, Pub. L. No. 66-152 § 439, 41 Stat. 456–57, 495,
Congress conferred exclusive jurisdiction over the rail sys-
tem on the Interstate Commerce Commission, now the Sur-
face Transportation Board (“STB”). See 49 U.S.C.
§ 10501(b). A railroad that wishes to abandon any portion
of a railroad line that it operates must file an application
with the STB for permission to abandon. See id.
§ 10903(a)(1).
If the STB authorizes a railroad to abandon, the rail-
road is not compelled to abandon the line. Should the rail-
road choose to proceed with the process of abandonment, it
must file a notice of consummation with the STB “to signify
that it has exercised the authority granted and fully aban-
doned the line” within one year of the authorization. 49
C.F.R. § 1152.29(e)(2). If the carrier does not file a notice
Case: 24-1114 Document: 34 Page: 2 Filed: 08/14/2025

-- 2 of 14 --

SAUER WEST LLC v. US 3
of consummation by the deadline, its abandonment author-
ity automatically expires, and it must file a new application
with the STB if it later wishes to abandon the line. See id.
In 1983, the National Trails System Act Amendments,
Pub. L. No. 98-11, 97 Stat. 42 (the “Trails Act”) was en-
acted as a measure “to preserve for possible future railroad
use rights-of-way not currently in service and to allow in-
terim use of the land as recreational trails.” Preseault
v. Interstate Com. Comm’n, 494 U.S. 1, 6 (1990) (“Pre-
seault I”). Section 8(d) allows a railroad to negotiate with
a “[s]tate, political subdivision, or qualified private organi-
zation [that] is prepared to assume full responsibility for
management of [a] right[]-of-way” for use as a recreational
trail. 16 U.S.C. § 1247(d). If the parties agree, the rail-
road’s right-of-way is transferred to a trail sponsor for in-
terim recreational trail use. The trail use is “interim”
because of the possibility that the railroad may in the fu-
ture resume use of the right-of-way for railroad purposes.
See id.
The STB’s regulations implementing section 8(d) de-
scribe the process for abandonment and provide that, after
a railroad has filed an application for abandonment, any
prospective public or private trail sponsor may file a com-
ment, request, or petition indicating its interest “in acquir-
ing or using a right-of-way of a rail line . . . for interim trail
use and rail banking.” 49 C.F.R. § 1152.29(a). If the rail-
road agrees to negotiate with the prospective trail sponsor,
the STB issues a Notice of Interim Trail Use or Abandon-
ment (“NITU”), which suspends abandonment proceedings
for one year to allow the prospective rail sponsor to enter
into an agreement with the railroad to operate the right-of-
way as a recreational trail. Id. § 1152.29(d)(1). A NITU
will generally permit the railroad to continue the process
of abandoning the railroad line during the one-year negoti-
ation period, such as by “discontinu[ing] service,
Case: 24-1114 Document: 34 Page: 3 Filed: 08/14/2025

-- 3 of 14 --

SAUER WEST LLC v. US 4
cancel[ling] any applicable tariffs, and salvag[ing] track
and material.” Id.
If the parties do not come to a trail use agreement, the
railroad may abandon the railroad line within one year
from the date of the NITU’s issuance, but, as is generally
the case, the railroad is not required to abandon the line.
Id. § 1152.29(e)(2). In the typical case, the railroad does
not own its right-of-way outright but rather holds it under
easement. The easement usually provides that the prop-
erty reverts to abutting landowners upon abandonment of
rail operations. See Preseault I, 494 U.S. at 8. The ease-
ment may also sometimes be broad enough in scope to en-
compass other uses, such as the recreational trail use.
II
In Preseault I, the Supreme Court held that the appli-
cation of section 8(d) may give rise to a taking by prevent-
ing an abutting property owner from regaining their
unencumbered interest in the land. 494 U.S. at 8. We sub-
sequently held that establishment of interim trail use re-
sults in a Fifth Amendment taking if the original right-of-
way easement conveyed to the railroad was not sufficiently
broad as a matter of state law to encompass recreational
trail use. Preseault v. United States, 100 F.3d 1525, 1552
(Fed. Cir. 1996) (“Preseault II”) (en banc) (plurality opin-
ion). We announced a three-factor test to determine
whether intermittent trail use divests a landowner of an
easement that would have otherwise vested in the land-
owner as a matter of state law:
(1) [W]ho owned the strips of land involved, specif-
ically did the Railroad by the . . . transfers acquire
only easements, or did it obtain fee simple estates;
(2) if the Railroad acquired only easements, were
the terms of the easements limited to use for rail-
road purposes, or did they include future use as
public recreational trails; and (3) even if the grants
Case: 24-1114 Document: 34 Page: 4 Filed: 08/14/2025

-- 4 of 14 --

SAUER WEST LLC v. US 5
of the Railroad’s easements were broad enough to
encompass recreational trails, had these ease-
ments terminated prior to the alleged taking so
that the property owners at that time held fee sim-
ples unencumbered by the easements.
Id. at 1533.
In Caldwell v. United States, 391 F.3d 1226 (Fed. Cir.
2004), we clarified that a taking occurs only if, as a result
of the issuance of a NITU, “state law reversionary property
interests that would otherwise vest in the adjacent land-
owners are blocked from so vesting,” i.e., when the “state
law reversion interests [are] forestalled by operation of . . .
the Trails Act[.]” Id. at 1233. We explained that the “NITU
operates as a single trigger to several possible outcomes”:
it may result “in a permanent taking in the event that a
trail use agreement is reached and abandonment of the
right-of-way is effectively blocked,” whereas it may result
in a temporary taking when negotiations fail “and the
NITU . . . then convert[s] into a notice of abandonment.”
Id. at 1234; accord Behrens v. United States, 59 F.4th 1339,
1343 (Fed. Cir. 2023); Castillo v. United States, 952 F.3d
1311, 1315 (Fed. Cir. 2020).
We subsequently held in Caquelin v. United States,
959 F.3d 1360 (Fed. Cir. 2020), that a plaintiff must also
establish that the issuance of a NITU caused the taking.
Id. at 1372–73. The inquiry that Caquelin requires is
(1) whether the NITU delayed the railroad’s abandonment
of the line that it would have otherwise completed, post-
poning the reversion of the easement to the landowner, or
(2) whether the NITU merely created an opportunity for
the railroad to enter into a trails agreement, absent which
the railroad would not have abandoned the line. Id.
at 1373. In other words, the question is whether the NITU
was the cause of any delay in the reversion of the easement
Case: 24-1114 Document: 34 Page: 5 Filed: 08/14/2025

-- 5 of 14 --

SAUER WEST LLC v. US 6
to the landowner. Only in the former situation is the issu-
ance of a NITU a taking.
III
The railroad line here (the “Line”) is owned by Great
Western Railway of Colorado, LLC (“Great Western”) and
extends 6.2 miles between Johnstown, Colorado, and
Welty, Colorado. Great Western’s predecessor-in-interest
constructed the Line to transport sugar beets from a sugar
beet dump facility in Welty to the railroad’s main facilities
in Johnstown. The sugar beet dump facility was closed in
the 1970s, and local and overhead traffic on the Line
ceased. Thereafter, Great Western used the Line for rail-
car storage, and the Line fell into a state of disrepair. The
easement granted by the abutting landowners encom-
passed only railroad use and did not involve any recrea-
tional uses.
On April 16, 2008, Great Western formally requested
abandonment of the Line by filing a Notice of Exemption
with the STB. The STB granted permission for Great
Western to abandon the Line on May 6, 2008, and subse-
quently issued a NITU on July 28, 2008, so that Great
Western and the Town of Johnstown, Colorado, could ne-
gotiate for a possible interim trail use agreement. While
interim trail negotiations were ongoing, Great Western un-
dertook a tie replacement project, replacing 700 relay ties,
switch ties, and spikes and utilized the Line for storage
purposes. Negotiations were ultimately unsuccessful, and
the NITU expired on December 2, 2008. Rather than con-
summating abandonment, Great Western requested and
received six consecutive one-year extensions beginning in
May 2009, each time stating that it was exploring alterna-
tives to abandonment. On August 28, 2014, about nine
months before its abandonment authority was set to ex-
pire, Great Western notified the STB that it had decided
not to abandon the Line.
Case: 24-1114 Document: 34 Page: 6 Filed: 08/14/2025

-- 6 of 14 --

SAUER WEST LLC v. US 7
IV
On May 30, 2012, the plaintiffs-appellants (collec-
tively, “Sauer”), which owned property along the Line sub-
ject to Great Western’s railroad easement, sued the United
States in the Claims Court, alleging that the STB’s issu-
ance of the NITU constituted a temporary Fifth Amend-
ment taking. The parties subsequently cross-moved for
summary judgment and submitted a joint statement of
facts.
In a thorough opinion and order, the Claims Court
granted the government’s motion for summary judgment
and denied Sauer’s motion. The Claims Court found that
Sauer had not established causation under Caquelin be-
cause “[t]he actions of [Great Western] strongly indicate it
would not have abandoned the line at the time of the
NITU.” Sauer I, 168 Fed. Cl. at 73. It further held that it
was irrelevant whether Great Western had abandoned its
easement prior to the NITU as a matter of state law be-
cause the original easement was not broad enough to en-
compass recreational trail use. Id. at 83.
Sauer appealed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3).
D ISCUSSION
We review a decision of the Claims Court granting
summary judgment de novo. Rogers v. United States,
814 F.3d 1299, 1305 (Fed. Cir. 2015). We review the
Claims Court’s legal conclusions de novo, while reviewing
its factual findings for clear error. Love Terminal Partners,
L.P. v. United States, 889 F.3d 1331, 1340 (Fed. Cir. 2018).
Whether a taking has occurred is a question of law based
on factual underpinnings. Wyatt v. United States, 271 F.3d
1090, 1096 (Fed. Cir. 2001). The parties agree that there
are no facts in dispute.
Case: 24-1114 Document: 34 Page: 7 Filed: 08/14/2025

-- 7 of 14 --

SAUER WEST LLC v. US 8
I
Sauer argues that we should refer this case for initial
hearing en banc pursuant to Rule 35(a) to overrule our pre-
vious decision in Caquelin that the plaintiff in a rails-to-
trails case must show that the railroad would have aban-
doned a rail line in the absence of a NITU. Sauer argues
that the NITU’s issuance by itself constitutes a per se tak-
ing and that a “categorical physical taking begins when the
STB issues the NITU.” Appellants’ Br. 15.
Sauer’s theory is that the mere authorization to enter
into a trails agreement constitutes a taking based on the
Supreme Court’s decision in Cedar Point Nursery v. Has-
sid, 594 U.S. 139 (2021). See Appellants’ Br. 29–31. But
mere authorization to seek access to property is not a tak-
ing unless it is coupled with compulsion directly to the
property owner. See Dinh v. United States, No. 23-2100,
Slip Op. at 11 (July 31, 2025). In Cedar Point, it was not
the authorization for third parties to enter the land but ra-
ther the requirement that the landowner allow such entry
that constituted a taking. 594 U.S. at 162. So, here, it is
not the authorization for the railroad to enter into a trails
agreement that constitutes a taking but rather the bar to
abandonment that the NITU creates. That bar to abandon-
ment is the cause of non-abandonment only if the railroad
would have otherwise abandoned the railroad easement.
Sauer also urges that Caquelin is inconsistent with our
decisions in Caldwell; Barclay v. United States, 443 F.3d
1368 (Fed. Cir. 2006); and Ladd v. United States, 630 F.3d
1015 (Fed. Cir. 2010). As discussed earlier, in Caldwell, we
affirmed the dismissal of the plaintiffs’ takings claim as
barred by the Tucker Act’s six-year statute of limitations.
There, the plaintiffs argued that a taking under the Trails
Act does not accrue for the purposes of the statute of limi-
tations until the railroad right-of-way is actually converted
into a trail for interim trail use. Caldwell, 391 F.3d
Case: 24-1114 Document: 34 Page: 8 Filed: 08/14/2025

-- 8 of 14 --

SAUER WEST LLC v. US 9
at 1233. We disagreed, explaining that the taking, if any,
occurs once “state law reversionary property interests that
would otherwise vest in the adjacent landowners are
blocked from so vesting.” Id. The only government action
that effectuates this blocking, we explained, is the issuance
of the NITU, since the task of finalizing the trail use agree-
ment “falls entirely on the railroad and trail operator.” Id.
at 1233–34.
In Barclay, we rejected the plaintiffs’ argument that
Caldwell was wrongly decided and should be overruled “in-
sofar as it relied on federal rather than state law to deter-
mine when abandonment and reversion of railroad rights-
of-way occur.” 443 F.3d at 1373. We explained that
“[a]bandonment cannot occur until authorized by federal
law, and the NITU precludes abandonment and the rever-
sion that would follow if abandonment were consum-
mated.” Id. at 1374.
In Ladd, we reversed a decision by the Claims Court
holding that the issuance of a NITU amounts to a compen-
sable taking only if the easement is actually transferred to
a third-party trail sponsor for recreational trail use.
630 F.3d at 1018. Explaining that we were bound by our
decisions in Caldwell and Barclay, we held that the issu-
ance of the NITU in that case constituted a taking, explain-
ing that a taking was compensable whether it was
permanent or temporary. Id. at 1025.
In Caquelin, we considered our decisions in Caldwell,
Barclay, and Ladd and explained that these cases establish
that a Fifth Amendment taking is “accomplished when a[]
NITU is issued and state law reversionary interests that
would otherwise take effect pursuant to normal abandon-
ment proceedings are forestalled.” Caquelin, 959 F.3d
at 1371 (emphasis in original) (quoting Caldwell, 391 F.3d
at 1236). In other words, for there to be a cognizable tak-
ing, the plaintiffs must show that the issuance of the NITU
Case: 24-1114 Document: 34 Page: 9 Filed: 08/14/2025

-- 9 of 14 --

SAUER WEST LLC v. US 10
delayed the railroad’s abandonment, after which their
state-law reversionary interests would have otherwise
vested.
As we explained in Caquelin, our prior cases simply did
not address the issue whether the issuance of a NITU was
a per se taking and instead “use[d] a shorter formulation
referring simply to the NITU date as the date of taking.”
959 F.3d at 1372. We explained that “nothing in those
opinions suggests that a party in those cases argued to this
court that, even in the absence of the NITU, the railroad
would not have abandoned the rail line until some date
that would make a difference to the outcome of the issue on
appeal.” Id. Because Caquelin is consistent with our prior
cases and in our view was correctly decided, we decline to
refer proceedings for initial en banc hearing.
II
Sauer alternatively argues that it satisfied Caquelin’s
causation requirement. Sauer argues that the causation
standard announced in Caquelin “[n]ecessarily” focuses on
the railroad’s intent as of the time of the NITU’s issuance
and that “the NITU itself strongly evidences an intent to
abandon.” Appellants’ Br. 35, 38. However, Caquelin held
that the issuance of a NITU is not alone sufficient to estab-
lish that the government caused a taking. 959 F.3d
at 1363. Although the railroad’s intent at the time of the
NITU’s issuance is probative as to the ultimate question
whether it would have consummated abandonment in the
absence of the NITU, it does not establish causation as
Sauer suggests. Here, the Claims Court properly found
that the totality of circumstances does not suggest causa-
tion.
In Caquelin, we identified five pieces of evidence in the
record in that case that demonstrated that the plaintiffs
had carried their burden of establishing causation—(1) the
railroad requested abandonment; (2) the railroad refused
Case: 24-1114 Document: 34 Page: 10 Filed: 08/14/2025

-- 10 of 14 --

SAUER WEST LLC v. US 11
to consent to an extension of the NITU; (3) the railroad
abandoned the railroad line within three months of the
NITU’s expiration; (4) the NITU authorized the railroad to
remove tracks during the pendency of the NITU period;
and (5) the railroad in fact removed tracks. Caquelin,
959 F.3d at 1373. Because the government had not
“point[ed] to any evidence at all affirmatively indicating
the railroad would have delayed abandonment . . . had
there been no NITU to interfere with the grant of authority
of abandonment that was set to take effect,” we concluded
that the Claims Court did not err in determining that the
plaintiffs had established causation. Id.
We note that both parties appear to treat our decision
in Caquelin as articulating a five-factor test. Although we
found five factual indicia relevant to our analysis in
Caquelin, neither Caquelin nor our decisions thereafter
have purported to establish a rigid multi-factor test. For
example, in Memmer v. United States, 50 F.4th 136
(Fed. Cir. 2022), we considered a variety of evidence, such
as (1) the railroad’s intent to abandon prior to the NITU’s
issuance, (2) the railroad’s removal of rails and ties during
the pendency of the NITU, (3) the railroad’s intent to either
consummate abandonment or enter into a trail-use agree-
ment after the NITU expired, and (4) the railroad’s ulti-
mate abandonment of the line. See id. at 145.
The Claims Court here acknowledged that facts of this
case were quite different from those in Caquelin, ulti-
mately concluding that the five factors were on balance “in-
conclusive or neutral evidence of causation.” Sauer I,
168 Fed. Cl. at 68.1 There was other evidence beyond the
1 On appeal, the government urges that we should
hold that Sauer cannot establish causation because Great
Western was prohibited from removing tracks during the
Case: 24-1114 Document: 34 Page: 11 Filed: 08/14/2025

-- 11 of 14 --

SAUER WEST LLC v. US 12
factors that Great Western would not have abandoned,
such as its six one-year extensions to negotiate the trails
agreement, improvements to the Line, the fact that no
track was removed, the use of the line for railcar storage,
negotiations with other parties to reopen the Line, and
eventual decision not to abandon. On this record, we can-
not say that the Claims Court erred in determining that
Sauer failed to adduce sufficient evidence to support cau-
sation. See Memmer, 50 F.4th at 145. The Claims Court,
based on evidence in the record, correctly concluded that
the government had demonstrated that Great Western
would not abandon the Line in the absence of the NITU.
III
Finally, Sauer argues that under Preseault II, a plain-
tiff may establish takings liability by showing that the rail-
road abandoned its railroad right-of-way as a matter of
state law prior to the NITU’s issuance. That is not correct.
State law abandonment only plays a role in the analysis if
there is a dispute about whether the railroad’s easement
extends beyond railroad use to recreational use. In those
circumstances, state law determines whether the scope of
the easement was broad enough to encompass recreational
trail use. The question of abandonment of a railroad ease-
ment is governed by federal, rather than state, law.
As we explained in Barclay, “[w]hile state law gener-
ally creates the property interest in a railroad right-of-way,
‘the disposition of reversionary interests [is] subject . . . to
the [STB’s] “exclusive and plenary” jurisdiction to regulate
period of an order pursuant to the National Historic
Preservation Act. See Appellee’s Br. 33. Because we agree
with the Claims Court that there was sufficient evidence
demonstrating that Great Western would have delayed
abandonment, with or without the NHPA order, we need
not decide this issue.
Case: 24-1114 Document: 34 Page: 12 Filed: 08/14/2025

-- 12 of 14 --

SAUER WEST LLC v. US 13
abandonments’ of railroad rights of way.” 443 F.3d at 1374
(alterations in original) (footnote omitted) (quoting Pre-
seault I, 494 U.S. at 8, 16). Similarly, in Ellamae Phillips
Co. v. United States, 564 F.3d 1367 (Fed. Cir. 2009), we ex-
plained that the trial court should consider “either the
scope of the easement granted . . . or, if the scope was
broader than railroad use, whether in this case the ease-
ment was abandoned.” Id. at 1373. We see no reason to
depart from our prior decisions, especially since the pur-
pose of the Trails Act was to provide a comprehensive fed-
eral regulatory scheme for the abandonment of railroad
rights-of-way. As to abandonment of railroad use, the STB
retains exclusive authority under federal law. Chicago &
N.W. Transp. Co., 450 U.S. at 323 (“Congress granted to
the [STB] plenary authority to regulate, in the interest of
interstate commerce, rail carriers’ cessations of service on
their lines. And at least as to abandonments, this author-
ity is exclusive.”); see also Preseault I, 494 U.S. at 8.
The plurality opinion in Preseault II is clear on its face
that state law is only implicated if the easement is broad
enough to cover recreational use.2 We first concluded that,
under state law, the “shifting public use” doctrine did not
operate to widen the scope of the easement in that case
from railroad use to recreational use. 100 F.3d at 1541–44.
We then addressed state-law abandonment, only “assum-
ing for sake of argument . . . that the so-called ‘doctrine of
2 Sauer also relies on our decisions in Ellamae; Hash
v. United States, 403 F.3d 1308 (Fed. Cir. 2005); and Toews
v. United States, 376 F.3d 1371 (Fed. Cir. 2004) for the
proposition that state-law abandonment is an “alternative
path” to liability. See Appellants’ Br. 48–50; Appellants’
Reply Br. 25. In those cases, however, we explained that
state-law abandonment is only relevant if the scope of the
railroad’s easement includes recreational trail use. See
Ellamae, 564 F.3d at 1373; Toews, 376 F.3d at 1377–79.
Case: 24-1114 Document: 34 Page: 13 Filed: 08/14/2025

-- 13 of 14 --

SAUER WEST LLC v. US 14
shifting public use’ is available,” to explain that, even if the
scope of the easement encompassed recreational use, that
easement had been abandoned under state law. Id.
at 1544–46. We did not conclude that state-law abandon-
ment could apply to an easement limited in scope to rail-
road use.
Here, Sauer concedes that Great Western’s right-of-
way easement was limited to railroad use. See Appellants’
Br. 7. It is thus irrelevant whether as a matter of state law
Great Western could have abandoned the Line, since under
federal law, it would have had to seek permission from the
STB to consummate abandonment in any case.
Finally, to the extent that Sauer contends that federal
preemption of state-law abandonment of the railroad ease-
ments itself results in a taking, see Appellants’ Br. 53–54,
their claim is barred by the statute of limitations. As the
government explains in its response brief, the federal gov-
ernment’s preemption of state law comes from the Trans-
portation Act of 1920, so any takings claim would be time-
barred. See Appellee’s Br. 49–50.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the judgment of the Claims Court granting sum-
mary judgment to the government.
AFFIRMED
Case: 24-1114 Document: 34 Page: 14 Filed: 08/14/2025

-- 14 of 14 --