Legal Case Summary

LADD v. United States

Date Argued: Tue Sep 07 2010
Case Number: H039559
Docket Number: 2604035
Judges:Not available
Duration: 32 minutes
Court Name: Federal Circuit

Case Summary

**Case Summary: Ladd v. United States, Docket Number 2604035** **Court:** United States Court of Appeals **Date:** [Insert Date] **Overview:** Ladd v. United States is a significant case involving [brief description of the legal issue, e.g., federal law, criminal defense, tax issues, etc.]. The case reached the appellate level following a decision made by a lower court. **Facts:** - The plaintiff, Ladd, brought a case against the United States concerning [outline the central facts of the case]. - Key events leading up to the case included [briefly summarize relevant background information and events that led to litigation]. - Ladd alleged that [specific claims made by Ladd against the U.S. government]. **Legal Issues:** - The central legal issues presented in this case included: 1. [First legal issue] 2. [Second legal issue, if applicable] 3. [Any additional legal issues] **Procedural History:** - The case was initially heard in [name of lower court], which [describe the ruling of the lower court]. - Following this decision, Ladd appealed to the United States Court of Appeals, where they sought to overturn [or uphold] the lower court’s ruling. **Arguments:** - **Appellant (Ladd):** - Ladd argued that [summarize the key points of Ladd’s argument]. - **Appellee (United States):** - The government contended that [summarize the key points of the United States' argument]. **Court's Decision:** - The appellate court [describe the court's ruling, e.g., affirmed, reversed, remanded, etc.], explaining that [summarize the reasoning behind the court’s decision]. - The court emphasized [any significant points made by the court that clarify their reasoning or highlight legal precedents]. **Conclusion:** Ladd v. United States serves as a pivotal case in [explain the implications of the case, e.g., its impact on federal law, precedent set for future cases, etc.]. The decision underscores [summarize the key takeaways or implications of the court's ruling]. **Key Takeaways:** - [List any important conclusions drawn from the case.] - [Discuss any potential impact on future similar cases or legal standards.] **Note:** [If applicable, mention any ongoing litigation or upcoming hearings related to the case, as well as any dissenting opinions if relevant.] --- *Please ensure to fill in any missing details and tailor the content to fully represent the specifics of the case as necessary.*

LADD v. United States


Oral Audio Transcript(Beta version)

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blic record? Well, I would address that two points. The second point being the public record is the key point. Absolutely it's settled law of the circuit that the taking in a trail that case accrues and the owner has the right to commence an action for compensation upon the issuance of the original NITU. Settled law, we in no way dispute that. That's well settled now. It's called well Barclay Illig, rehearing and rehearing in this case itself. So that is not when we see the issue, Your Honor, rather it is the question when the owner doesn't know of it and has no knowledge of it. And you mentioned public proceeding. But the NITU is not published in the federal register. There is no notice provided to the owner. In this case, 10 different lawyers from the Justice Department all the way through three years of discovery, including an appeal to this court, two different assistant United States attorney generals, two different surface transportation board general counsel, and the commissioner of the surface transportation board office of proceedings all concluded that the original NITU, the first NITU was the one in 2006. It was a subject of the litigation. And now called well in Barclay

. They both involved NITUs that gave proper notice, right? Whereas this one involved no public notice whatsoever. There was no public notice whatsoever of this. No, there is a new paper publication, right? I understand the government alleged some artistry. Well, normally things are public. They didn't say this one was. And there was no evidence of any publication of any kind related to this. Absolutely correct, Your Honor. Any who have affidavits that say, we didn't know. It's not even just the case of constructive notice. You have actual, we didn't know, affidavits. You all know that landowner. From every single landowner in the railroad operated in 2005. Correct. So if a owner were to have walked out their back door, which they did, they would have had no knowledge of the physical condition. Nothing at all

. There's absolutely correct. There's no basis. The question that I would ask my clients is, what could they or should they have done to have informed themselves that they possessed this client? And the answer is there's nothing that they could have done. The only, the manner in which the NITU, the 1998 NITU, came into existence, was in this private abandonment process. I was wondering if we should overturn Caldwell and Barclay and say the NITU is not the proper accrual point. Not at all, Your Honor. I think the court has certainly, this panel found that court embark has spoken on this issue. The Caldwell Barclay are the law. Well, I shouldn't say, it refused to hear it. We hear it embarked. So Caldwell and Barclay are the law and the law that would be binding on this panel. We're not asking at all for the court to change that. We're simply saying whether it's under the claims suspension rule under Section 2501 or principles of due process, that the limitations period cannot begin running before the owner has noticed or reason to know of the NITU's issuance. Didn't the STB publish with notice and federal register that the railroad had been authorized to abandon the line leading to the NTIU process so that there was constructive notice. The public notice that was about to happen

. Three responses to that, Your Honor. First, there was a notice in the federal register in 1996, I believe. Which the railroad published. Which if anybody read it would have said the railroad was abandoning this court or not that they were trying to convert it to any future use. One would have to then know that these ranchers in Arizona must then know the whole STB process but if they continued reading the federal register every single day they would have never come across the NITU because it was never issued there. It was just a filing in this private proceeding between the railroad and the STB was mentioned. It might be an NTIU, didn't it? It didn't say there might be a NITU in the federal register notice. What it did say is that there could be other proceedings of factaking. So I don't think that there's any way. I want to make sure I'm talking about the same one though, because I'm looking at one in my hands right now. Is it the ones we Friday, February 4th, Chiefs of 1997? That's the only one I found. That is the only one Valentine's Day publication, which is the only one we know over the government as a way. It's just really just two sentences the summary does and is that it? Is that all there is to this sentence? That is all there is to that, Your Honor. And.

.. That's the board exempts the railroad from prior approval requirements to abandon. It doesn't even take it or it's going to abandon it. It just says if you later down the road choose to abandon your exempt from prior approval requirements. Correct. That's the only published notice, you're absolutely correct, Your Honor. And the final point in the response is we would say when an order of a government agency is taking the owner's property, the Supreme Court's jurisprudence requires actual notice or attempted actual notice. You don't need to fight that out. I don't think I do. I don't know that I need to, but I make that point because it is one where in this case it goes to the fact. I think the case can most easily be decided under the accrual suspension. Under section 2501, simply saying narrowly on the facts of this case, there is no way that this was knowable to these owners in order to let them be informed of a fact by giving rise to a cause of action. What about the line to the..

. What about the line to the 11th deed, with respect to the other property? Yes, the deed itself is from the comming and it was to the original rarer of the state. And under Arizona law, Arizona like other states, you read the two cases which interestingly Judge Hodges failed to mention in his decision which are void and leisure. Both have Arizona looking at railroad rights of waste, scripts of land, for railroad as being an easement as opposed to conveyance of faith. But when we look at the language in this instrument, when we look at what the grantor said, he said over through across and upon a strip of land for relocation of a railroad. So it was clearly defined by the words of the document in the context in which it was issued. But he also says, in fee symbols. Well, it does, but that is... Very clearly go meaning. Well, I think fee symbols, we point out in the briefing referring to Professor Ely, is that that term can't be taken in particular at the time of 1911, but the word fee was often used to determine the tenure to describe the term of the state. Yes, they probably hear that fee symbols too expansive and an easement doesn't give you the right to keep the cattle off the rail line. In other words, an easement lets the property owner have access. So it has to be more than an easement and less than fee symbols. Which there isn't a label for that, is there? Well, that's interesting you mentioned at Queenerun because that's what the Arizona Spring Court considered in the 1888 Boyd case, where they were describing what is the unique nature of an interest that a railroad holds in the land upon which it operates as rail line

. And the Arizona Supreme Court in Boyd looked exactly at that. It said it's something a little more because these railroad interests are a more encompassing interest. It's not as though a private transaction is of course familiar with the preso decision judge Plager's majority talked about their issued in the context of a flavor of condemnation or potential eminent domain. Isn't there more language than fee symbols as Bog and South Grant, Convoy, Elyon, etc.? And that would be the language you would find in quick claimed deeds or easements or indentures of the debt. I mean, that is basically boilerplate form language that you can find in many instruments that are construed properly to be an easement. And I think we have to, the only way to read this is an actual conveyance saying that the grantor commens intended to convey to the railroad. And a fee simple deed isn't going to talk about over a cross and through. Correct. It wouldn't. It's gone. So you don't talk about over a cross through stuff if it's a fee simple. They're trying to get somewhere less than a fee simple and more than an easement so they can keep the cattle off the railroads. Correct. And that was the only interest the railroad needed in this transaction was a choir and easement across the top railroad line

. I think again we look at this court decision in preso, we look at the boy case in Arizona. And I don't see that Arizona would have law different from what this court found to be the presumptions of Vermont law in preso. And I will reserve the balance of my time for it. Great. Hey, please record my name is Michael Gray here in the half the United States. I see the trains are running up and down these lines until 2005 and yet you're saying at that point the statute of limitations had already expired. Indeed, indeed in Barclay this court said just that but it did not matter. The statute of limitations commences and did not matter that in that case the trains the railroad was still operating. So this court has in fact said that. I noticed the lines abandon when they're running trains on it until after the time you have a chance to even raise a claim. I think it would be helpful in answering that just back up and describe the process here and what actually happens because what happened in this case is actually not any different than what happens in the normal case where in ITU is issued. In the way the process. It sounds to me like you're going to argue in ITU is the wrong thing to satisfy a newer should have known a cruel standard than isn't it? No, I'm going to argue that you cannot rule for the plaintiff in this case without completely eviscerating the rule announced in Caldwell and Barclay which we are bound to. I don't know. I think that's correct

. There was no allegation in Caldwell of Barclay that they didn't have notice. Like here we have a few days from them saying we have no notice that was not disputed in Caldwell of Barclay. Again, I think it's helpful to back up. We've created a few disputed in Caldwell of Barclay. That particular point was not disputed but the facts of this case are the issuance of the in ITU happens in the exact same way that it happened in Caldwell in Barclay. If I hear that you've not calculated no, here they didn't know and for a taking you if I have actual or constructive knowledge, so where is the constructive knowledge of this case? I'm looking at this document that Judge Moore has talked about a couple times. Where in this do I get notice if I have a landowner? If you're a landowner, you have a couple of things. You have a railroad running through your property which you are on notice of. Correct. Then you also have... The frame is still running there till 2000. But it's incumbent upon you when you have a railroad running through your property that the corridor is governed by the Circus Transportation Board to pay attention to what's happening with the railroad. I'm paying attention

. Where is this? The Federal Register, the railroad file, the SUV then says we've noticed of exemption from the abandonment proceedings which specifically says that the notice is... And I'm quoting from the Federal Register notice here. Subject to historic preservation, trail use, public use, and standard labor protective conditions and that additional requests for interim trail use rail banking under the rail state suits must be filed by a particular date. So if you are a landowner who has a railroad running through your property and you are paying attention, you know that there's an abandonment that might happen. You're interested in the land reverting to you. So you're paying attention to know that in the Federal Register they said this proceeding has started. At that point you can sign up with the Circus Transportation Board. In that notice they describe the rail operator, the county through which it runs, the terminus points that are proposed to be abandoned. They provide the names and addresses of who to call further information. And at that point you can contact the SUV and ask to be put on the service list. Then as the proceeding goes forward, if a notice of interim trail use is issued and you are on the service list then you will have notice. That is this document could lead to continued use of the rail. They may decide not to abandon

. It could. And so I see the trains run by until 2005 I conclude. You can you conclude it wasn't abandoned the trains are still running. And you're telling me the core rejected that explicitly in Barclay. I don't think so. That's where I don't read Barclay as expansively as you do. The language in Barclay works that it does the Barclay says explicitly it does not matter that in that case that the railroad continued operating that the notice the dates and those of interim trail use is issued is what matters. Because there was no dispute that the landowners in that case had noted so the right of the matters that the trains continued to operate because that wasn't the trigger for giving them notice. Let me back up here. It's the standard that you're applying. If the taking a cruise it happens in a cruise on the date the notice of interim trail use issues which they don't contest in which call where I'll embark like clearly holds that that happens. Then the standard is but the notice of interim trail use concealed or inherently unknowable for a cruel suspension this notice of interim trail use was issued in the exact same way that they call are if you say it inherently unknowable. You say it inherently unknowable you've got it the rules you've got it called well you've got it Barclay because it is inherently unknowable. What is unjust about that? Well because then we would have the government issuing newspaper notices as this should. Well I don't know that you can require that what you would have is plaintiff this is the you have the CFC having to examine it everything we pay we can require that they give notice in a way that is publicly ascertainable. In in in Barclay and in lab this court clearly express the preference for a bright line rule because of the problems you would have with so many landowners with so many interests. I mean here you have some with fee simple interest some without some that may have a versionary interest all on for you to my hundreds or thousands of landowners you're talking about a rule that says you have to ascertain whether each individual potential plaintiff was when they knew it. And that completely gets the rule from Caldwell and Barclay. And that's the rule you have to construct your actual notice we're not making the stuff up as we go along. I mean these are the Supreme Court's stick dates a one claim can accrue. I think that the only way that you can re-cowell and Barclay is that because the notes of interim trail use happens as part of a public process that that is sufficient for constructive notice. And it's sufficient in all cases for constructive notice because if it's not then you can't say that the notice of interim trail use starts it. In the previous appeal in this case. Because the the the citizens Barclay and Caldwell were on top of it and aware of those things. No they weren't because they were those cases were dismissed for failure comply with Statue of Limit. The newspapers required by regulations right. The newspaper it's a newspaper notes of the abandonment. Here you know you violated your own right. We don't have in the record evidence of the newspaper notice there's there certainly hasn't been. I violated your right

. In in in Barclay and in lab this court clearly express the preference for a bright line rule because of the problems you would have with so many landowners with so many interests. I mean here you have some with fee simple interest some without some that may have a versionary interest all on for you to my hundreds or thousands of landowners you're talking about a rule that says you have to ascertain whether each individual potential plaintiff was when they knew it. And that completely gets the rule from Caldwell and Barclay. And that's the rule you have to construct your actual notice we're not making the stuff up as we go along. I mean these are the Supreme Court's stick dates a one claim can accrue. I think that the only way that you can re-cowell and Barclay is that because the notes of interim trail use happens as part of a public process that that is sufficient for constructive notice. And it's sufficient in all cases for constructive notice because if it's not then you can't say that the notice of interim trail use starts it. In the previous appeal in this case. Because the the the citizens Barclay and Caldwell were on top of it and aware of those things. No they weren't because they were those cases were dismissed for failure comply with Statue of Limit. The newspapers required by regulations right. The newspaper it's a newspaper notes of the abandonment. Here you know you violated your own right. We don't have in the record evidence of the newspaper notice there's there certainly hasn't been. I violated your right. It has the right doesn't require us to if the right requires notice in the newspaper it doesn't require that you know we managed to make it in the in the record in this case. They certainly haven't proven that no notice was given. Hello. If you didn't even alleged that there was in fact a newspaper publication in this instance. Forget about whether it's in the record you didn't even make that allegation in this case. Caldwell and Barclay adopted such a bright line rule that I don't think anybody thought he was going to be necessary to go back and search the newspaper records from 1997 to see if the railroad published notice. The regulation required and let's be clear the notice is not of the interim. The thing called the internet now you can plug it in and it finds it in about 20 seconds. I am making this sound a little more difficult than it probably is. I'm not sure if that's I'm not sure how well the internet records go back for newspaper publications in Arizona in the in the mid 90s. But that's beside the point. Let's keep in mind that the newspaper notice that we're talking about is the same notice that's published in the federal register. It's of the commencement of the event of proceeding. It's not of the notice of interim trail use. There is not a newspaper publication required by the regs for the notice of interim trail use itself in any case

. It has the right doesn't require us to if the right requires notice in the newspaper it doesn't require that you know we managed to make it in the in the record in this case. They certainly haven't proven that no notice was given. Hello. If you didn't even alleged that there was in fact a newspaper publication in this instance. Forget about whether it's in the record you didn't even make that allegation in this case. Caldwell and Barclay adopted such a bright line rule that I don't think anybody thought he was going to be necessary to go back and search the newspaper records from 1997 to see if the railroad published notice. The regulation required and let's be clear the notice is not of the interim. The thing called the internet now you can plug it in and it finds it in about 20 seconds. I am making this sound a little more difficult than it probably is. I'm not sure if that's I'm not sure how well the internet records go back for newspaper publications in Arizona in the in the mid 90s. But that's beside the point. Let's keep in mind that the newspaper notice that we're talking about is the same notice that's published in the federal register. It's of the commencement of the event of proceeding. It's not of the notice of interim trail use. There is not a newspaper publication required by the regs for the notice of interim trail use itself in any case. So the federal register notice was sufficient regardless of whether there's newspaper notice. This is put the plane of all notice that the proceeding was going forward. That is enough to make it not inherently unknowable. That's the standard. Is it inherently unknowable? That's this court's articulation of the standard in the Ingram case. Which in but not one this court says is the same standard. They don't mean to be stating a different standard from Newer should have none. If you if this court decides that the normal route of publication of a notice of interim trail use, which is publication of the proceeding in the federal register, then issuance without actual notice. If the court decides that is inherently unknowable, then again, we believe that completely guts the rule from Calwell and Barclay. So in your mind, they would have to find out about the issuance of the notice, the day of issues. What would individual landowners have to do and what's near view is that they should have done to be unknowable? What they would need to do is keep abreast of the S.U.P. proceedings that go on with their.

. So the federal register notice was sufficient regardless of whether there's newspaper notice. This is put the plane of all notice that the proceeding was going forward. That is enough to make it not inherently unknowable. That's the standard. Is it inherently unknowable? That's this court's articulation of the standard in the Ingram case. Which in but not one this court says is the same standard. They don't mean to be stating a different standard from Newer should have none. If you if this court decides that the normal route of publication of a notice of interim trail use, which is publication of the proceeding in the federal register, then issuance without actual notice. If the court decides that is inherently unknowable, then again, we believe that completely guts the rule from Calwell and Barclay. So in your mind, they would have to find out about the issuance of the notice, the day of issues. What would individual landowners have to do and what's near view is that they should have done to be unknowable? What they would need to do is keep abreast of the S.U.P. proceedings that go on with their... One way to do it is stay in contact with the railroad. You know you have a railroad. You can stay in contact with the railroad and say what should we be doing. Once they know about the federal register, you know this. Slow down. Let me get the word in here. So when they have to stay in contact with the railroad, do you envision weekly, monthly, yearly? What is your view of the obligation on the landowner to a price itself in the government issues this NITU, which it doesn't publish anywhere and which is distributed to anybody? They have a six-year limitation period. They need to apprise themselves at least every six years to make sure that they are within their limitations period. And you know it is not uncommon to require landowners to remain abreast of what's going on on their property. An affirmative obligation on a landowner to make sure that it knows what's happening with its property is common in the law of property. And so what they should be doing... Now when there's all heard you've been in these minutes and continues to operate to train them every day

.. One way to do it is stay in contact with the railroad. You know you have a railroad. You can stay in contact with the railroad and say what should we be doing. Once they know about the federal register, you know this. Slow down. Let me get the word in here. So when they have to stay in contact with the railroad, do you envision weekly, monthly, yearly? What is your view of the obligation on the landowner to a price itself in the government issues this NITU, which it doesn't publish anywhere and which is distributed to anybody? They have a six-year limitation period. They need to apprise themselves at least every six years to make sure that they are within their limitations period. And you know it is not uncommon to require landowners to remain abreast of what's going on on their property. An affirmative obligation on a landowner to make sure that it knows what's happening with its property is common in the law of property. And so what they should be doing... Now when there's all heard you've been in these minutes and continues to operate to train them every day. We have lots of cases. I've been on many of them and says the landowner should have a price itself. How did you not notice the government drove a giant fat cow on your land and dug out half of it? Well, it hasn't been in these materials yet. Well, I think when there's a railroad going then that puts you on... There's instances of the government bombing the land or taking filiproments. I think it is different, isn't it? I don't think it is. In principle, I mean, there's also... It's a can to... If a municipality were to pass a regulation that says you can have no development of this property at all and doesn't provide any actual notice

. We have lots of cases. I've been on many of them and says the landowner should have a price itself. How did you not notice the government drove a giant fat cow on your land and dug out half of it? Well, it hasn't been in these materials yet. Well, I think when there's a railroad going then that puts you on... There's instances of the government bombing the land or taking filiproments. I think it is different, isn't it? I don't think it is. In principle, I mean, there's also... It's a can to... If a municipality were to pass a regulation that says you can have no development of this property at all and doesn't provide any actual notice. And the statute of limitations period has run, you would say you think coming on the landowner to pay attention to the regulations that affect this property. And this is not a different situation. You know, 11D, I think, in a time of an opportunity to see what that issue as well. I do. And our view on that issue is that in fee simple means in fee simple, it says it's conveyed in fee simple. The in fee simple means that all of the property is something. And over and through. And upon and all these limitations that are easement language. I think that right away is an easement language. I don't think that those are easement languages. I think it's describing a strip of land. And I think it's describing it as, you know, this is a strip of land that we're giving up this part of the parcel that goes through our parcel. It's a strip of land in fee simple that we're conveying. And I think that's sufficient. If it's using the words in fee simple in a state where even without it the presumption is you give a fee grant isn't enough

. And the statute of limitations period has run, you would say you think coming on the landowner to pay attention to the regulations that affect this property. And this is not a different situation. You know, 11D, I think, in a time of an opportunity to see what that issue as well. I do. And our view on that issue is that in fee simple means in fee simple, it says it's conveyed in fee simple. The in fee simple means that all of the property is something. And over and through. And upon and all these limitations that are easement language. I think that right away is an easement language. I don't think that those are easement languages. I think it's describing a strip of land. And I think it's describing it as, you know, this is a strip of land that we're giving up this part of the parcel that goes through our parcel. It's a strip of land in fee simple that we're conveying. And I think that's sufficient. If it's using the words in fee simple in a state where even without it the presumption is you give a fee grant isn't enough. I'm not sure what they would have said to grant a fee simple interest here. I do want to go back though and just just make clear again, so I'm not sure I got to completely address Judge Moore's question about what we expect them to do. And again, when the federal register notices issue, which this court has said publication of the federal register is sufficient notice on interested parties, no matter the any injustice that results. When that notice is issued, all they have to do is come and ask to be put on the service list with the STB. When a need to is issued as part of the process, they will receive notice of it. That is not much to ask the landowner that has a railroad running through his property. Therefore we ask that this court for granted. Thank you, Mr. Gray. Thank you for responding to many questions that you need to find out. Mr. Herrmann. Thank you, Your Honor. What the government is asking this court to do and what they ask Judge Hodges to do is to impose on these Arizona ranchers a standard of basically omniscience. That the Justice Department themselves, the STB themselves, as I mentioned, 10 different Department of Justice lawyers, two different assistant attorney generals, two different general councils from the service transportation board, and an affirmative declaration from one of the commissioners

. I'm not sure what they would have said to grant a fee simple interest here. I do want to go back though and just just make clear again, so I'm not sure I got to completely address Judge Moore's question about what we expect them to do. And again, when the federal register notices issue, which this court has said publication of the federal register is sufficient notice on interested parties, no matter the any injustice that results. When that notice is issued, all they have to do is come and ask to be put on the service list with the STB. When a need to is issued as part of the process, they will receive notice of it. That is not much to ask the landowner that has a railroad running through his property. Therefore we ask that this court for granted. Thank you, Mr. Gray. Thank you for responding to many questions that you need to find out. Mr. Herrmann. Thank you, Your Honor. What the government is asking this court to do and what they ask Judge Hodges to do is to impose on these Arizona ranchers a standard of basically omniscience. That the Justice Department themselves, the STB themselves, as I mentioned, 10 different Department of Justice lawyers, two different assistant attorney generals, two different general councils from the service transportation board, and an affirmative declaration from one of the commissioners. Mr. Herrmann, I think you really need to deal with the key point from what Mr. Gray told us. Mr. Graymann, I think you really need to deal with the issue of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state similar to the state of the situation which has changed Arabs, not a common law pattern and this is a point require either themselves or the railroad to ever directly inform an owner of when this NNITU is issued. But that's a situation entirely of the government's making. Under the Constitution, this is the taking of these people's property. It's had a tremendous effect on these Arizona owners. They would have brought an action had they known about this and they couldn't have. They didn't have unlike other cases the knowledge that perhaps Caldwell did, General Caldwell did in that case where there was discussions about when the deed was recorded and there was some knowledge. So I think in those cases, to answer your question, your honor, in those cases where an owner such as this does not ever have a reason to know or have a reasonable knowledge of issuance of an NNITU, you could have another case where the Equal Suspension Rule or Principles of Due Process could delay the beginning of the running of limitation period and tell such time as the owner did have knowledge. But we don't dispute the Brightline Rule at all in Caldwell and Barclay, that is the rule that is when the claim accrued, that's what this court has held and it makes sense because that order did have the effect of depriving them of the unencumbered possession of their property. Now the fact that it wasn't implemented, they didn't have knowledge of it, doesn't change that fact. Your clients have simply gone down to the STB and put themselves on some sort of notice list and thereby forever, whenever a NITU is issued, they would have gotten a copy of it. Well, no, the government makes it sound as though all they had to do, they would have had to read even under the government's supposition, they would have had to been reading the Federal Register every day

. Mr. Herrmann, I think you really need to deal with the key point from what Mr. Gray told us. Mr. Graymann, I think you really need to deal with the issue of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state similar to the state of the situation which has changed Arabs, not a common law pattern and this is a point require either themselves or the railroad to ever directly inform an owner of when this NNITU is issued. But that's a situation entirely of the government's making. Under the Constitution, this is the taking of these people's property. It's had a tremendous effect on these Arizona owners. They would have brought an action had they known about this and they couldn't have. They didn't have unlike other cases the knowledge that perhaps Caldwell did, General Caldwell did in that case where there was discussions about when the deed was recorded and there was some knowledge. So I think in those cases, to answer your question, your honor, in those cases where an owner such as this does not ever have a reason to know or have a reasonable knowledge of issuance of an NNITU, you could have another case where the Equal Suspension Rule or Principles of Due Process could delay the beginning of the running of limitation period and tell such time as the owner did have knowledge. But we don't dispute the Brightline Rule at all in Caldwell and Barclay, that is the rule that is when the claim accrued, that's what this court has held and it makes sense because that order did have the effect of depriving them of the unencumbered possession of their property. Now the fact that it wasn't implemented, they didn't have knowledge of it, doesn't change that fact. Your clients have simply gone down to the STB and put themselves on some sort of notice list and thereby forever, whenever a NITU is issued, they would have gotten a copy of it. Well, no, the government makes it sound as though all they had to do, they would have had to read even under the government's supposition, they would have had to been reading the Federal Register every day. And if a NITU had issued in the Federal Register for the whole world to say, would you still be arguing they didn't have constructive knowledge? I'm sorry, are you hypothesizing that in fact they did publish a NITU? Mr. Sir, I think you have been published in the Federal Register, are you saying that would not have been adequate with the long constructed notice? It did. There certainly would be a much better argument that they were on constructive notice. As we've made clear in our briefing, we think that publication doesn't satisfy the constitutional standard under the Malayne and New York Central cases and Menonite when the government agency's order is taking the property. But as you mentioned, I don't know that we need to go to that point. In this case, there was not even a basis for constructive notice. So what did they have to do to put themself on notification lines? Well, I think at minimum, they should have nailed a notice to the property owners. If they didn't do that, they could have published it in the newspaper in that community so that owners in that community could have read it and they would have had a publication that the owners have a claim. Much as required in the opt-in class action procedures, in these frails at cases, the court of claims routinely requires published a notice in the local newspaper. Costs a couple hundred thousand bucks, publish it a couple times, everybody knows what's going on. And if they have a claim in the ability to participate or not, that wasn't done here. And these people had no ability to protect their rights because they didn't have the knowledge of the basis of facts necessary to do so. Thank you, Your Honor. Thank you. I'm just going to turn that conclusion on

. All right