J. Paul PRESEAULT and Patricia Preseault, Individually and as Partners of 985 Associates, Ltd., a Vermont Limited Partnership, and 985 Associates, Ltd., Plaintiffs-Appellants,
v.
The UNITED STATES, Defendant-Appellee,
and
The State of Vermont, Defendant/Cross-Appellant.
United States Court of Appeals, Federal Circuit.https://leagle.com/images/logo.png
November 5, 1996.
November 5, 1996.
Attorney(s) appearing for the Case
Patrick W. Hanifin, New England Legal Foundation, Boston, MA, argued, for plaintiffs-appellants. With him on the brief were Emily R. Livingston, Brookline, MA, and Stephen S. Ostrach, Boston, MA.
Jeffrey P. Kehne, Attorney, Environment and Natural Resources Division, Department of Justice, Washington, DC, argued, for defendant-appellee. With him on the brief were Peter R. Steenland, Jr., Acting Assistant Attorney General, and James E. Brookshire, Springfield, VA, Susan V. Cook and Robert L. Klarquist, Washington, DC, Attorneys. Of counsel on the brief was Louis Mackall, Office of General Counsel, Interstate Commerce Commission, Washington, DC.
John K. Dunleavy, Assistant Attorney General, Vermont Agency of Transportation, Montpelier, VT, argued for defendant/cross-appellant. With him on the brief was Jeffrey L. Amestoy, Attorney General.
William Perry Pendley, Mountain States Legal Foundation, Denver, CO, for amici curiae Maurice L. and Delores J. Glosemeyer.
Thomas C. Jackson, Beveridge & Diamond, P.C., Washington, DC, for amici curiae Rails-to-Trails Conservancy and The National Trust for Historic Preservation in the United States. With him on the brief were Henry L. Diamond and David G. Isaacs, Washington, DC, and J. Andrew Stephenson, New York City. Of counsel on the brief were Andrea C. Ferster, General Counsel, Rails-to-Trails Conservancy, Washington, DC, and David A. Doheny, General Counsel, and Elizabeth S. Merritt, Associate General Counsel, National Trust for Historic Preservation, Washington, DC.
John D. Echeverria, National Audubon Society, Washington, DC, for amicus curiae National Audubon Society.
Before RICH, NEWMAN, MAYER, MICHEL, PLAGER, LOURIE, CLEVENGER, RADER, and SCHALL, Circuit Judges.
United States Court of Appeals, Federal Circuit.
Opinion filed by Circuit Judge PLAGER, in which Circuit Judges RICH, NEWMAN, and MAYER join. Concurring opinion filed by Circuit Judge RADER, in which Circuit Judge LOURIE joins. Dissenting opinion filed by Circuit Judge CLEVENGER, in which Circuit Judges MICHEL and SCHALL join.
PLAGER, Circuit Judge.
In this Takings case, the United States denies liability under the Fifth Amendment of the Constitution
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