J. Paul Preseault and Patricia Preseault, Individually Andas Partners of 985 Associates, Ltd., a Vermontlimited Partnership, and 985 Associates,ltd., Plaintiffs-appellants, v. the United States, Defendant-appellee,andthe State of Vermont, Defendant-cross-appellant, 66 F.3d 1190 (Fed. Cir. 1995)

Appealed from: U.S. Court of Federal Claims; Judge Christine Odell Cook Miller.

Patrick W. Hanifin, New England Legal Foundation, Boston, MA, argued for plaintiffs-appellants.

John K. Dunleavy, Assistant Attorney General, Montpelier, VT, argued for defendant-cross-appellant.

Jeffrey P. Kehne, Attorney, Environmental and Natural Resources Division, Department of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief was Robert L. Klarquist.

Thomas C. Jackson, Beveridge and Diamond, P.C., Washington, D.C., for the Amici Curiae Rails-to-Trails Conservancy and the National Trust for Historic Preservation in the United States.

William Perry Pendley, Mountain State Legal Foundation, Denver, CO, for Amici Curiae Maurice L. and Delores J. Glosemeyer.

ORDER

A poll of the judges in regular active service to determine whether the appeal should be heard in banc was conducted at the suggestion of an active judge,

Upon consideration thereof, it is

ORDERED that the suggestion to rehear the appeal in banc be, and the same hereby is, accepted; and

IT IS FURTHER ORDERED that the judgment of the court entered on September 14, 1995, and reported in 66 F.3d 1167 (Fed. Cir. 1995), is vacated and that the opinion of the court accompanying the said judgment is withdrawn.

Additional briefing and argument are not indicated at this time.

Chief Judge ARCHER, and Circuit Judge BRYSON did not participate in the poll.