United States Court of Appeals for the Federal Circuit ______________________

STIMSON LUMBER COMPANY, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2022-1201 ______________________

Appeal from the United States Court of Federal Claims in No. 1:18-cv-00983-NBF, Senior Judge Nancy B. Fire- stone. ______________________

Decided: October 2, 2023 ______________________

THOMAS SCOTT STEWART, Stewart Wald & Smith, LLC, Kansas City, MO, argued for plaintiff-appellant. Also rep- resented by ELIZABETH MCCULLEY.

KATELIN SHUGART-SCHMIDT, Environment and Natural Resources Division, United States Department of Justice, Denver, CO, argued for defendant-appellee. Also repre- sented by TODD KIM. ______________________

Before DYK, REYNA, and CUNNINGHAM, Circuit Judges. Case: 22-1201 Document: 36 Page: 2 Filed: 10/02/2023

2 STIMSON LUMBER COMPANY v. US

CUNNINGHAM, Circuit Judge. This appeal originates from a rails-to-trails conversion in the state of Oregon, where Stimson Lumber Company (“Stimson”) owns property subject to an easement. Stim- son brought suit against the government in the United States Court of Federal Claims (“Claims Court”), seeking compensation for an alleged taking arising from the opera- tion of the National Trails System Act Amendments of 1983 (“Trails Act”), 16 U.S.C. § 1247(d). Stimson claimed that the issuance of a Notice of Interim Trail Use (“NITU”) allowing interim trail use and railbanking constituted a Fifth Amendment taking. The Claims Court held that in- terim trail use and railbanking was within the scope of the easement; the easement was not abandoned; and no taking occurred. See Loveridge v. United States, 148 Fed. Cl. 279, 283, 295 (2020) (“Decision I”); Loveridge v. United States, 150 Fed. Cl. 143, 145, 150–51 (2020) (“Decision II”); 1 J.A. 53 (Rule 54(b) Judgment). We affirm. I. BACKGROUND On October 13, 1905, Articles of Incorporation were ex- ecuted for the Pacific Railway and Navigation Company (“Railroad”) with the plan of “construct[ing], equip[ping] and operat[ing] a line of railroad in the State of Oregon.” J.A. 546–47, 550. On July 22, 1907, the Western Timber Company (“Western Timber”) executed a deed transferring to the Railroad the land right relevant to this appeal. J.A. 198. The deed (“Stimson’s deed”) states in relevant part: Western Timber Co. . . . does hereby bargain, sell, grant, convey and confirm to the Pacific Railway and Navigation Company, a Corporation, and to its

1 These decisions also involved other landowners, deeds, easements, properties, and other issues that are not at issue in this appeal. See Decision I at 286–94; Decision II at 146, 151. Case: 22-1201 Document: 36 Page: 3 Filed: 10/02/2023

STIMSON LUMBER COMPANY v. US 3

successors and assigns forever, all of the following described real property situate in the County of Washington, State of Oregon, to-wit: – [description of the land] ... Together with the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining. Reserving, however, unto the said Western Timber Co., its successors and assigns, the right to cross said right of way at any point or points where such crossing is desired. TO HAVE AND TO HOLD unto the said Pacific Railway and Navigation Company, and to its successors and as- signs forever. Id. Stimson and the government agree that Stimson owns land in Oregon covered by Stimson’s deed and that the deed provided the Railroad with an e