Hornish Trust v. King County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS E. HORNISH AND SUZANNE No. 16-35486

J. HORNISH JOINT LIVING TRUST;

TRACY NEIGHBORS; BARBARA D.C. No.

NEIGHBORS; ARUL MENEZES; 2:15-cv-00284-

LUCRETIA VANDERWENDE; HERBERT MJP

MOORE; ELYNNE MOORE; EUGENE

MOREL; ELIZABETH MOREL; LAKE

SAMMAMISH 4257 LLC, OPINION

Plaintiffs-Appellants,

v.

KING COUNTY, a home rule charter

county,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, Senior District Judge, Presiding

Argued and Submitted June 14, 2018

Seattle, Washington

Filed August 3, 2018

2 HORNISH JOINT LIVING TRUST V. KING COUNTY

Before: MILAN D. SMITH, JR. and PAUL J.

WATFORD, Circuit Judges, and DOUGLAS L. RAYES, *

District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Property Law

The panel affirmed the district court’s summary

judgment in favor of King County, Washington, quieting

title to a rail corridor that the Surface Transportation Board

had “railbanked” pursuant to the Trails Act.

The panel held that the action arose under federal law,

and the panel had jurisdiction pursuant to 28 U.S.C. § 1331,

because the plaintiffs’ state law claim necessarily raised a

federal issue that was actually disputed, substantial, and

capable of resolution in federal court without disrupting any

congressionally approved federal-state balance.

The panel held that the plaintiffs, landowners whose

properties abutted the rail corridor’s boundaries, lacked both

Article III and statutory standing to bring their claim for a

declaratory judgment pursuant to Wash. Rev. Code

§ 7.24.020 because they lacked any property interests in the

*

The Honorable Douglas L. Rayes, United States District Judge for

the District of Arizona, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HORNISH JOINT LIVING TRUST V. KING COUNTY 3

corridor. The panel concluded that the County owned one

portion of the corridor in fee. In addition, the Trails Act

preserved the railroad easement and created a new easement

for trail use, and both easements were conveyed to King

County. The panel concluded that Washington’s “centerline

presumption” did not apply.

The panel held that the district court properly granted

summary judgment to and quieted title in King County

because the county possessed the railroad easement and the

recreational easement. The panel concluded that the

easement was 100 feet wide, with certain exceptions. The

panel denied plaintiffs’ motion to supplement the record

with new evidence regarding the width of the corridor.

COUNSEL

Steven Wald (argued), Stewart Wald & McCulley LLC, St.

Louis, Missouri; Thomas S. Stewart and Elizabeth Gepford

McCulley, Stewart Wald & McCulley LLC, Kansas City,

Missouri; for Plaintiffs-Appellants.

David J. Hackett (argued), King County Prosecuting

Attorney’s Office, Seattle, Washington; Mallory L.B. Satre

and Emily J. Harris, Corr Cronin Michelson Baumgardner

Fogg & Moore LLP, Seattle, Washington; for Defendant-

Appellee.

Patrick J. Schneider, Philip E. Paine, and Beth A. Clark,

Foster Pepper PLLC, Seattle, Washington, for Amicus

Curise BNSF Railway Company.

James E. Breitenbucher, Riddell Williams P.S., Seattle,

Washington, for Amicus Curiae Puget Sound Energy Inc.

4 HORNISH JOINT LIVING TRUST V. KING COUNTY

Mark C. Zebrowski, Morrison & Foerster LLP, San Diego,

California; David P. Thoreson, Morrison & Foerster LLP,

San Francisco, California; Andrea Foster, General Counsel,

Rails to Trails Conservancy Inc., Washington, D.C.; for

Amicus Curiae Rails to Trails Conservancy.

Richard M. Stephens, Stephens & Klinge LLP, Bellevue,

Washington, for Amicus Curiae Sammamish Home Owners.

OPINION

M. SMITH, Circuit Judge:

After the Surface Transportation Board (the STB)

“railbanked” the portions of the Eastside Rail Corridor (the

Corridor) adjacent to or bisecting Plaintiffs-Appellants’

residential lots, pursuant to the National Trails System Act

Amendments of 1983 (the Trails Act), 16 U.S.C. § 1247 et

seq., Plaintiffs-Appellants filed suit in federal court seeking

a declaration of their property rights in the Corridor.

Plaintiffs-Appellants disputed the nature and scope of

Defendant-Appellee King County’s railroad easement, and

the Corridor’s width. In response, King County filed

counterclaims asking the court to (1) declare that the Trails

Act preserved the full scope of the original railroad

easement, and that the Corridor’s width is 100 feet, and

(2) quiet title to the Corridor in King County. Both sides

moved for summary judgment. The district court denied

summary judgment to Plaintiffs-Appellants, dismissed their

claims with prejudice, and granted summary judgment to,

and quieted title to the Corridor in, King County. Plaintiffs-

Appellants timely appealed. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

HORNISH JOINT LIVING TRUST V. KING COUNTY 5

FACTUAL AND PROCEDURAL BACKGROUND

I. The Origins of the Corridor & Plaintiffs-Appellants’

Property Interests

In 1887, the Seattle, Lake Shore & Eastern Railway

Company (SLS&E), which later became part of BNSF

Railway Company (BNSF, and together with SLS&E, the

Railroad), began to construct the Corridor along the eastern

shoreline of Lake Sammamish. The SLS&E obtained the

land that it needed for the Corridor through various means,

which gave the SLS&E a collection of railroad easements

and fee simple properties. See Beres v. United States,

104 Fed. Cl. 408, 412 (2012) (hereinafter Beres III).

All Plaintiffs-Appellants are landowners whose

properties abut the Corridor’s boundaries (the precise

location of which the parties dispute). Plaintiff-Appellant

the Thomas E. Hornish and Suzanne J. Hornish Joint Living

Trust (Plaintiff-Appellant Hornish) owns property adjacent

to a portion of the Corridor that SLS&E obtained through a

May 9, 1887 quitclaim deed executed by homesteader

William Hilchkanum and his wife. Hilchkanum later sold

the remainder of his property, and some part of that

remainder interest is now owned by Plaintiff-Appellant

Hornish.

Plaintiffs-Appellants Tracy and Barbara Neighbors, Arul

Menezes and Lucretia Vanderwende, Lake Sammamish

4257 LLC, Herbert and Elynne Moore, and Eugene and

Elizabeth Morel (the Non-Hornish Plaintiffs-Appellants)

own properties that are adjacent to other portions of the

Corridor. The SLS&E completed construction of the

Corridor’s tracks in March 1888, and the Northern Pacific

Railroad conveyed its property to Samuel Middleton the

6 HORNISH JOINT LIVING TRUST V. KING COUNTY

following year. The Non-Hornish Plaintiffs-Appellants’

chains of title all originate with Middleton.

II. The Railbanking Process

In 1997, BNSF conveyed all of its ownership interests in

the Corridor to The Land Conservancy of Seattle and King

County (TLC) through a recorded quitclaim deed. On June

11, 1997, TLC initiated the “railbanking” process by

petitioning the STB for an exemption to allow TLC’s

abandonment of the Corridor for active rail service. See

Land Conservancy of Seattle & King Cty.-Abandonment

Exemption-in King Cty., WA, No. AB-508X, 1997 WL

359085, at *1 (S.T.B. June 23, 1997). As part of its petition,

TLC provided King County’s Statement of Willingness to

Assume Financial Responsibility as the interim trail sponsor

under the Trails Act. Burlington N. & Santa Fe Ry. Co.-

Abandonment Exemption-in King Cty., Wa, No. AB-6 (Sub-

No. 380X), 1998 WL 638432, at *1 (S.T.B. Sept. 16, 1998).

The STB granted the exemption on May 13, 1998. Then, in

September of 1998, the STB issued a Notice of Interim Trail

Use (NITU) to facilitate railbanking and interim trail use.

Subsequently, TLC and King County entered into an

agreement formally designating King County as the trail

sponsor. The agreement also conveyed to King County all

of TLC’s ownership interests in the Corridor through a

recorded quitclaim deed, which described the precise

property that was being conveyed. King County then

constructed a soft-surface hiking and biking trail in the

Corridor. More recently, King County has prepared to

construct a paved trail.

HORNISH JOINT LIVING TRUST V. KING COUNTY 7

III. Prior Proceedings

On February 25, 2015, several of Plaintiffs-Appellants,

among others, filed suit to obtain a declaration of their rights

with regard to the Corridor and to quiet their title in the

Corridor. King County moved to dismiss the complaint for

lack of standing, arguing that the Plaintiffs-Appellants had

failed to demonstrate that they had any ownership interest in

the Corridor. While this motion was pending, the Plaintiffs-

Appellants sought leave to file a proposed amended

complaint.

On June 5, 2015, the district court granted King County’s

motion to dismiss, and denied leave to file the proposed

amended complaint. The court determined that amendment

would be futile because the proposed amended complaint did

not remedy the standing defects of the original complaint.

However, the court gave the Plaintiffs-Appellants leave to

file a different amended complaint that would address the

standing problem. Plaintiffs-Appellants did so, filing the

Amended Complaint (AC). King County then answered and

brought quiet title and declaratory judgment counterclaims.

Both sides then filed motions for summary judgment.

On April 20, 2016, the district court denied Plaintiffs-

Appellants’ summary judgment motion, dismissed

Plaintiffs-Appellants’ claims with prejudice, and granted

summary judgment to King County with regard to its

declaratory judgment and quiet title counterclaims.

Plaintiffs-Appellants timely appealed.

STANDARD OF REVIEW

We review the district court’s grant of summary

judgment de novo. King County v. Rasmussen, 299 F.3d

1077, 1083 (9th Cir. 2002). We “must determine, viewing

8 HORNISH JOINT LIVING TRUST V. KING COUNTY

the evidence in the light most favorable to the nonmoving

party, whether there are any genuine [disputes] of material

fact and whether the district court correctly applied the

relevant substantive law. All reasonable inferences from the

evidence must be drawn in favor of the nonmoving party.”

Id. (citation omitted).

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. § 1331.

28 U.S.C. § 1331 authorizes federal jurisdiction over all

civil actions “arising under” federal law. The Supreme

Court “has found that statutory term satisfied in either of two

circumstances. Most directly, and most often, federal

jurisdiction attaches when federal law creates the cause of

action asserted.” Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Manning, 136 S. Ct. 1562, 1569 (2016). The parties agree

that such is not the case here. However, “even when ‘a claim

finds its origins’ in state law, there is ‘a special and small

category of cases in which arising under jurisdiction still

lies.’” Id. (quoting Gunn v. Minton, 568 U.S. 251, 258

(2013)). This case falls within the latter category.

As the Supreme Court has explained, “a federal court has

jurisdiction of a state-law claim if it ‘necessarily raises a

stated federal issue, actually disputed and substantial, which

a federal forum may entertain without disturbing any

congressionally approved balance’ of federal and state

power.” Manning, 136 S. Ct. at 1570 (alteration omitted)

(quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g

& Mfg., 545 U.S. 308, 314 (2005)). “That is, federal

jurisdiction over a state law claim will lie if a federal issue

is: (1) necessarily raised, (2) actually disputed,

(3) substantial, and (4) capable of resolution in federal court

without disrupting the federal-state balance approved by

Congress.” Gunn, 568 U.S. at 258. Jurisdiction is proper

HORNISH JOINT LIVING TRUST V. KING COUNTY 9

“[w]here all four of these requirements are met” because in

such a case, “there is a ‘serious federal interest in claiming

the advantages thought to be inherent in a federal forum,’

which can be vindicated without disrupting Congress’s

intended division of labor between state and federal courts.”

Id. (quoting Grable, 545 U.S. at 313). The Supreme Court

“ha[s] often held that a case ‘arose under’ federal law”—

meeting these criteria—“where the vindication of a right

under state law necessarily turned on some construction of

federal law.” Franchise Tax Bd. of State of Cal. v. Constr.

Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 9 (1983)

(citing Smith v. Kansas City Title & Tr. Co., 255 U.S. 180

(1921); Hopkins v. Walker, 244 U.S. 486 (1917)); see also

14B Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 3722 (4th ed. 2016) (“An important

corollary to the well-pleaded complaint rule is that the

essential federal element of the plaintiff’s complaint must be

supported under one construction of federal law and defeated

under another.”).

Plaintiffs-Appellants argue that the federal courts lack

jurisdiction because a Trails Act issue arises only as a

defense. They liken this case to Shulthis v. McDougal,

225 U.S. 561 (1912), wherein the Court held that it had no

jurisdiction over a quiet title action simply because one party

had “derived his title under an act of Congress.” Id. at 570.

Plaintiffs-Appellants also posit that this case is

distinguishable from Rasmussen because there, King County

was the plaintiff alleging that its rights derived from federal

law, 299 F.3d at 1082, while here, King County is a

defendant and its assertion of rights under federal law arises

only as a defense. Finally, Plaintiffs-Appellants argue that

the Trails Act’s application is not “actually disputed.”

10 HORNISH JOINT LIVING TRUST V. KING COUNTY

These attempts to recharacterize the AC’s plain

invocation of the Trails Act fail. Certainly, we agree with

Plaintiffs-Appellants that our jurisdictional analysis is

limited by “the longstanding well-pleaded complaint rule,”

which provides that “a suit ‘arises under’ federal law ‘only

when the plaintiff’s statement of his own cause of action

shows that it is based upon federal law,’” and which does not

permit a finding of jurisdiction “predicated on an actual or

anticipated defense,” or “upon an actual or anticipated

counterclaim.” Vaden v. Discover Bank, 556 U.S. 49, 60

(2009) (alteration omitted) (quoting Louisville & Nashville

R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). We disagree,

however, that federal claims in this case arise only from

Defendants-Appellees’ defenses and counterclaims.

Grable itself is instructive in this regard. There, the

plaintiff had filed a quiet title action in Michigan state court,

alleging that it had superior title to certain real property that

had been seized by the Internal Revenue Service (IRS)

because the IRS had failed to give the plaintiff notice of the

seizure, as required by a federal tax statute. Grable, 545 U.S.

at 311. The defendant had then “removed the case to Federal

District Court as presenting a federal question, because the

claim of title depended on the interpretation of the notice

statute in the federal tax law.” Id. The Supreme Court

affirmed that the “case warrant[ed] federal jurisdiction.” Id.

at 314. The Court held that because the plaintiff had

“premised its superior title claim on a failure by the IRS to

give it adequate notice, as defined by federal law,” the

question of whether the plaintiff had been “given notice

within the meaning of the federal statute” was necessarily

raised as “an essential element of [the plaintiff’s] quiet title

claim.” Id. at 314–15. Additionally, “the meaning of the

federal statute [was] actually in dispute,” because it was “the

only legal or factual issue contested in the case,” and “an

HORNISH JOINT LIVING TRUST V. KING COUNTY 11

important issue of federal law that sensibly belongs in a

federal court.” Id. at 315. Finally, the Court explained that

“because it [would] be the rare state title case that raises a

contested matter of federal law, federal jurisdiction to

resolve genuine disagreement over federal tax title

provisions will portend only a microscopic effect on the

federal-state division of labor.” Id.

A. Requirements One and Two

Applying Grable’s reasoning to this case, we hold that

we have jurisdiction. We note that a federal issue is both

“necessarily raised” on the face of the AC, and “actually

disputed” by the parties. As described above, Plaintiffs-

Appellants have alleged one claim in the AC: Pursuant to

Revised Code of Washington section 7.24.020, 1 Plaintiffs-

Appellants seek “a declaration of rights that the original

source conveyance to the railroad was an easement and other

interests acquired by the railroad were prescriptive

easements, that the easements were for railroad purposes

only, and that Plaintiffs-Appellants are the fee owners of the

railroad right-of-way at issue, and King County only

acquired a surface easement for a hiking and biking trail with

the possible reactivation of a railroad pursuant to the Trails

Act.”

Thus, Plaintiffs-Appellants have petitioned us to answer

at least one “question of construction or validity,” Wash.

1

This section provides that “[a] person interested under a deed, will,

written contract or other writings constituting a contract, or whose rights,

status or other legal relations are affected by a statute, municipal

ordinance, contract or franchise, may have determined any question of

construction or validity arising under the instrument, statute, ordinance,

contract or franchise and obtain a declaration of rights, status or other

legal relations thereunder.” Wash. Rev. Code § 7.24.020.

12 HORNISH JOINT LIVING TRUST V. KING COUNTY

Rev. Code § 7.24.020, that necessarily implicates the Trails

Act: Specifically, they have asked us to declare that “King

County only acquired a surface easement for a hiking and

biking trail with the possible reactivation of a railroad

pursuant to the Trails Act.” This petition relies on

allegations (1) that “[t]he Trails Act authorizes the STB to

preserve railroad corridors or rights-of-way not currently in

use for train service for possible future rail use by converting

those rights-of-way into recreational trails,” and (2) that

“King County, through the Quit Claim Deed from BNSF,

acquired an easement over the surface of the right-of-way

which, pursuant to the Trails Act, is now an easement for a

hiking and biking trail with the possible reactivation of a

railroad.” Defendants-Appellees dispute these facts, arguing

that King County acquired a full railway easement through

the Quit Claim Deed, which encompasses far more than a

surface right of-way. The resolution of this dispute turns on

an interpretation of the Trails Act, because deciding the

scope of King County’s rights pursuant to the Quit Claim

Deed will require this court to determine whether the Trails

Act creates, supplements, or replaces any previously existing

railroad easement. In other words, “the vindication of

[Plaintiffs-Appellants’] right[s] under state law necessarily

turn[s] on some construction of federal law.” Franchise Tax

Bd., 463 U.S. at 9. Thus, the first two Grable requirements

are satisfied in this case. See Gunn, 568 U.S. at 258.

B. Requirements Three and Four

Grable’s latter two requirements are also satisfied: The

federal issue is both “substantial” and “capable of resolution

in federal court without disrupting the federal-state balance

approved by Congress.” Id. For an issue to be “substantial,”

“it is not enough that the federal issue be significant to the

particular parties in the immediate suit . . . . The

HORNISH JOINT LIVING TRUST V. KING COUNTY 13

substantiality inquiry under Grable looks instead to the

importance of the issue to the federal system as a whole.”

Id. at 260. In Grable, for example, the Court “emphasized

the Government’s ‘strong interest’ in being able to recover

delinquent taxes through seizure and sale of property, which

in turn ‘required clear terms of notice to allow buyers to

satisfy themselves that the Service has touched the bases

necessary for good title’” and then found that the

“Government’s ‘direct interest in the availability of a federal

forum to vindicate its own administrative action’ made the

question ‘an important issue of federal law that sensibly

belonged in a federal court.’” Id. at 260–61 (alterations

omitted) (quoting Grable, 545 U.S. at 315).

The Supreme Court has already spoken regarding the

importance of the Trails Act, and the federal-state balance it

struck. The Court has deemed the Trails Act “the

culmination of congressional efforts to preserve shrinking

rail trackage by converting unused rights-of-way to

recreational trails.” Preseault v. Interstate Commerce

Comm’n, 494 U.S. 1, 5 (1990) (hereinafter Preseault I). The

Court noted that “[t]wo congressional purposes [were]

evident” with regard to the Trails Act. Id. at 17. On the one

hand, “Congress intended to ‘encourage the development of

additional trails’ and to ‘assist recreational users by

providing opportunities for trail use on an interim basis.’”

Id. (alteration omitted) (quoting H.R. Rep. No. 98-28, at 8–

9 (1983); S. Rep. No. 98-1, at 9–10 (1983) (same)); see also

16 U.S.C. § 1241(a) (“[The Trails Act] promote[s] the

preservation of, public access to, travel within, and

enjoyment and appreciation of the open-air, outdoor areas

and historic resources of the Nation . . . .”). On the other

hand, Congress also “intended ‘to preserve established

railroad rights-of-way for future reactivation of rail service,

to protect rail transportation corridors, and to encourage

14 HORNISH JOINT LIVING TRUST V. KING COUNTY

energy efficient transportation use.’” Preseault I, 494 U.S.

at 18 (quoting H.R. Rep. No. 98-28, at 8; S. Rep. No. 98-1,

at 9); see also 16 U.S.C. § 1247(d). “[E]ven if no future rail

use for [a rail corridor] is currently foreseeable,” Congress

determined “that every line is a potentially valuable national

asset that merits preservation.” Preseault I, 494 U.S. at 19.

Thus, the Government has a strong interest in both

facilitating trail development and preserving established

railroad rights-of-way for future reactivation of rail service.

And, because Congress acted in the Trails Act to preclude

the operation of state laws regarding abandonment, and

placed supervision of the “railbanking” and reactivation

processes in the hands of the STB, see 16 U.S.C. § 1247(d);

49 U.S.C. § 10501(b) (express preemption of state

abandonment regulation); 49 U.S.C. § 10903 (STB authority

over abandonment), the Government also has a “direct

interest in the availability of a federal forum to vindicate its

own administrative action,” such that the scope of the Trails

Act is “an important issue of federal law that sensibly

belongs in a federal court.” Grable, 545 U.S. at 315. We

therefore conclude that we have jurisdiction because this

case satisfies all four Grable requirements. 2

2

We note that our jurisdiction is also supported by our court’s

precedents regarding declaratory judgment claims. In a line of cases

beginning with Janakes v. United States Postal Service, 768 F.2d 1091

(9th Cir. 1985), we have adhered to the rule that if “the declaratory

judgment defendant could have brought a coercive action in federal court

to enforce its rights, then [the court has] jurisdiction,” so long as that

coercive action would “arise under” federal law. Id. at 1093; see also,

e.g., Chevron U.S.A. Inc. v. M & M Petroleum Servs., Inc., 658 F.3d 948,

951 (9th Cir. 2011); Standard Ins. Co. v. Saklad, 127 F.3d 1179, 1181

(9th Cir. 1997) (“A person may seek declaratory relief in federal court if

the one against whom he brings his action could have asserted his own

HORNISH JOINT LIVING TRUST V. KING COUNTY 15

ANALYSIS

Because the parties filed cross motions for summary

judgment, we will consider each motion in turn. First, we

will review the district court’s denial of summary judgment

to Plaintiffs-Appellants and dismissal of the AC for lack of

standing. We will then consider the merits of Defendants-

Appellees’ motion.

I. Plaintiffs-Appellants Lack Standing

As noted, Plaintiffs-Appellants’ AC seeks a declaratory

judgment pursuant to Revised Code of Washington section

7.24.020. The district court found that Plaintiffs-Appellants

lacked both Article III and statutory standing to bring this

claim, and we agree.

These standing inquiries overlap. “A plaintiff seeking

relief in federal court must establish the three elements that

constitute the ‘irreducible constitutional minimum’ of

Article III standing . . . .” Friends of Santa Clara River v.

rights there.”). “In other words, in a sense [the court] can reposition the

parties in a declaratory relief action by asking whether [it] would have

jurisdiction had the declaratory relief defendant been a plaintiff seeking

a federal remedy.” Standard Ins. Co., 127 F.3d at 1181. Here, we

already have had the opportunity to address the propriety of jurisdiction

in a coercive action brought by Defendants-Appellees. In Rasmussen,

King County was the plaintiff and had alleged “that it had a legal right

to the strip of land in question even if the original deed conveyed only

an easement” because of 16 U.S.C. § 1247(d). 299 F.3d at 1082. We

held that “there was a federal question on the face of the well-pleaded

complaint,” such that the court had jurisdiction to hear the case. Id.

Thus, we have jurisdiction over the instant case on the alternative ground

that we “would have jurisdiction had the declaratory relief defendant

been a plaintiff seeking a federal remedy.” Standard Ins. Co., 127 F.3d

at 1181.

16 HORNISH JOINT LIVING TRUST V. KING COUNTY

U.S. Army Corps of Eng’rs, 887 F.3d 906, 918 (9th Cir.

2018) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992)). Specifically, the plaintiff must show

(1) it has suffered an “injury in fact” that is

(a) concrete and particularized and (b) actual

or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it

is likely, as opposed to merely speculative,

that the injury will be redressed by a

favorable decision.

Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir.

2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).

Similarly, to have standing to sue under Section

7.24.020, a plaintiff must show there is a “justiciable

controversy.” To-Ro Trade Shows v. Collins, 27 P.3d 1149,

1153 (Wash. 2001). Washington courts have

defined a justiciable controversy as “(1) an

actual, present and existing dispute, or the

mature seeds of one, as distinguished from a

possible, dormant, hypothetical, speculative,

or moot disagreement, (2) between parties

having genuine and opposing interests,

(3) which involves interests that must be

direct and substantial, rather than potential,

theoretical, abstract or academic, and (4) a

judicial determination of which will be final

and conclusive.”

Id. (alteration omitted) (quoting Diversified Indus. Dev.

Corp. v. Ripley, 514 P.2d 137, 139 (Wash. 1973)). “Inherent

HORNISH JOINT LIVING TRUST V. KING COUNTY 17

in these four requirements are the traditional limiting

doctrines of standing, mootness, and ripeness, as well as the

federal case-or-controversy requirement.” Id.; see also Five

Corners Family Farmers v. State, 268 P.3d 892, 896 n.2

(Wash. 2011) (noting that “justiciable controversy”

requirements overlap with requirements for standing). In

particular, the “third justiciability requirement of a direct,

substantial interest in the dispute encompasses the doctrine

of standing,” which requires a party to “show, in addition to

‘sufficient factual injury,’ that ‘the interest sought to be

protected is arguably within the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question.’” To-Ro Trade Shows, 27 P.3d at

1154–55 (alteration omitted) (quoting Seattle Sch. Dist. No.

1 v. State, 585 P.2d 71, 82 (Wash. 1978)).

Thus, to have Article III and statutory standing to

challenge King County’s interest in the Corridor, Plaintiffs-

Appellants must show that Defendants-Appellees’

possession or use of the Corridor injured Plaintiffs-

Appellants’ interests therein. Because we find for the

reasons following that Plaintiffs-Appellants have no

property interests in the Corridor, we hold that they cannot

allege any injury to such interests, and therefore lack

standing.

A. The County Owns the Portion of the Corridor

Adjacent to the Hornish Property in Fee

The parties do not dispute the contents of the

Hilchkanum deed, from which the Hornish property is

derived. Rather, they dispute whether the deed conveyed a

railroad right of way in fee simple or through an easement.

This question has already been resolved by our court. In

Rasmussen, we held that the Hilchkanum deed conveyed to

18 HORNISH JOINT LIVING TRUST V. KING COUNTY

the railroad a fee simple interest in the “right of way strip.”

299 F.3d at 1080, 1088. We analyzed the deed with regard

to the factors outlined in Brown v. State, 924 P.2d 908, 911

(Wash. 1996), and found them to confirm that the deed’s

language and the contracting parties’ behavior evinced an

intent to convey a fee simple interest. Rasmussen, 299 F.3d

at 1084–88.

Subsequently, an intermediary Washington court found

the same. In Ray v. King County, 86 P.3d 183 (Wash. Ct.

App. 2004), the Washington Court of Appeals confirmed

that its analysis of the Brown factors “demonstrate[d] that

Hilchkanum conveyed the right of way to the Railway in fee,

not as an easement.” Id. at 192. The Washington Supreme

Court declined review. Ray v. King County, 101 P.3d 421

(2004).

We are bound by these decisions. The Rasmussen

panel’s analysis of the Hilchkanum deed was central to its

affirmance of the district court’s grant of summary judgment

to King County, see Rasmussen, 299 F.3d at 1088 (holding

that because the deed conveyed property in fee simple,

“King County, as the Railway’s successor, possesse[d] a fee

simple in the strip of land,” and the district court was

affirmed), and we “treat reasoning central to a panel’s

decision as binding later panels,” Garcia v. Holder, 621 F.3d

906, 911 (9th Cir. 2010) (quoting Sanchez v. Mukasey,

521 F.3d 1106, 1110 (9th Cir. 2008)). Moreover, “[i]n the

absence of any decision on this issue from the [Washington]

Supreme Court, we are bound by [Ray], as the ruling of the

highest state court issued to date.” Poublon v. C.H.

HORNISH JOINT LIVING TRUST V. KING COUNTY 19

Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 2017) (citing

West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940)). 3

Plaintiffs-Appellants argue that these decisions are no

longer good law because they rely on Brown, which created

a multifactor test that the Washington Supreme Court

subsequently modified in Kershaw Sunnyside Ranches, Inc.

v. Yakima Interurban Lines Association, 126 P.3d 16, 25–26

(Wash. 2006). Plaintiffs-Appellants note that the only court

to have analyzed the Hilchkanum deed after Kershaw, the

U.S. Court of Federal Claims, held that Rasmussen and Ray

were wrongly decided in light of Kershaw, and that the

Hilchkanum deed conveyed only an easement to the railroad.

See Beres III, 104 Fed. Cl. at 424–32; Beres v. United States,

97 Fed. Cl. 757, 784–92 (2011) (hereinafter Beres II).

However, the Washington Supreme Court itself has

demonstrated a belief that Kershaw did not “undercut the

theory or reasoning” underlying Rasmussen and Ray “in

such a way that the cases are clearly irreconcilable.” Miller

v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

First, in Kershaw itself, the court affirmed the correctness of

Ray. The court noted that “while the [Hilchkanum] deed did

include the phrase ‘right of way’ it did so only to the extent

that it stated it was conveying a ‘right of way strip.’ The Ray

court thus found no presumption in favor of an easement and

applied the Brown factors to reach its conclusion that a fee

interest was transferred.” Kershaw, 126 P.3d at 25 n.11.

This, the Kershaw court continued, distinguished the

3

Defendants-Appellees suggest that “this is particularly true where,

as in Ray, the Washington Supreme Court has denied review.” However,

the authority that they cite for this proposition, Intex Plastics Sales Co.

v. United Nat’l Ins. Co., 23 F.3d 254, 257 n.1 (9th Cir. 1994), is no longer

good law in this circuit, see Ajir v. Exxon Corp., 185 F.3d 865 n.3 (9th

Cir. 1999) (mem.).

20 HORNISH JOINT LIVING TRUST V. KING COUNTY

Hilchkanum deed from the deed at issue in Kershaw, which

“specifically established the purpose of the grant when it

stated the land was ‘to be used by the Railway as a right of

way for a railway’” and thereby created “a presumption in

favor of an easement which was not present in Ray.” Id.

(alteration omitted). Second, the Washington Supreme

Court declined the U.S. Court of Claims’ certification

request seeking clarification of Brown’s application, on the

basis that no clarity was lacking. Rather, the court was “of

the view that, in light of existing precedent such as Brown v.

State, 924 P.2d 908 (Wash. 1996) and Ray v. King County,

86 P.3d 183, review denied, 101 P.3d 421 (Wash. 2004), the

questions posed by the federal court are not ‘questions of

state law which have not been clearly determined.’” Beres

v. United States, 92 Fed. Cl. 737, 746 (2010) (hereinafter

Beres I) (alterations omitted); see also Beres II, 97 Fed. Cl.

at 786. This is persuasive evidence that the Washington

Supreme Court believes Kershaw created no “clearly

irreconcilable” conflict with Ray.

Moreover, even if Kershaw did modify the relevant

analytical method, we would be unable to reach a different

result than we did in Rasmussen. Kershaw specifies that a

presumption in favor of an easement is created when a deed

“uses the term ‘right of way’ as a limitation or to define the

purpose of the grant, [which] operates to ‘clearly and

expressly limit or qualify the interest conveyed.’” Kershaw,

126 P.3d at 22 (alterations omitted) (quoting Brown,

924 P.2d at 912); see also Beres II, 97 Fed. Cl. at 785. The

Beres court found that the Hilchkanum deed had used the

“right of way” language in this way in its granting clause,

such that the Kershaw easement presumption applied. Beres

III, 104 Fed. Cl. at 430; Beres II, 97 Fed. Cl. at 785.

HORNISH JOINT LIVING TRUST V. KING COUNTY 21

But our court and the Ray court found differently. In

Rasmussen, we characterized the granting clause language

that the Beres court deemed limiting under Kershaw—

evincing the parties’ expectation “that the right of way

would be used to construct and operate a railroad”—as mere

“precatory language” that “did not actually condition the

conveyance on such use.” 299 F.3d at 1086. And, in

Kershaw, the Washington Supreme Court noted that the

deed then before it “specifically established the purpose of

the grant when it stated the land was ‘to be used by [the

Railway] as a right of way for a railway’” and thereby

created “a presumption in favor of an easement which was

not present in Ray.” 126 P.3d at 25 n.11 (alteration in

original) (emphasis added). We are bound by this reasoning.

Thus, we must hold that the “right of way” language in the

granting clause is not limiting, and does not give rise to the

Kershaw easement presumption. This leads us to hold that

King County owns the portion of the Corridor adjacent to the

Plaintiff-Appellant Hornish’s property in fee, and that

Plaintiff-Appellant Hornish has no property interest therein.

B. The Trails Act Preserved the Railroad Easement

and Created a New Easement for Trail Use, Both

of Which Were Conveyed to King County

The parties agree that because no original deeds were

introduced into evidence for the portions of the Corridor

adjacent to which the Non-Hornish Plaintiffs-Appellants

own land, the railroad possesses a prescriptive easement

with regard to those portions. The parties disagree, however,

as to the current status of that easement. Plaintiffs-

Appellants argue that when the Corridor was railbanked,

“the railroad purposes easement [was] converted to a new

‘railbanked’ easement/trail easement that replaces the

former railroad purposes easement with a new trail easement

22 HORNISH JOINT LIVING TRUST V. KING COUNTY

with the potential reactivation of the railroad easement.”

The railroad easement is converted into a “new hiking and

biking trail/railbanked easement.” Defendants-Appellees

reject this explanation and contend that “the Trails Act

merely preempts abandonment of the state law easement and

guarantees the right to trail use” by its plain language. In

other words, the Trails Act preserves—rather than

converts—the existing railroad easement, and creates an

additional recreational trail easement.

We agree with Defendants-Appellees. The Trails Act,

by its plain language, “prevents the operation of state laws

that would otherwise come into effect upon abandonment—

property laws that would ‘result in extinguishment of

easements for railroad purposes and reversion of rights of

way to abutting landowners.’” Caldwell v. United States,

391 F.3d 1226, 1229 (Fed. Cir. 2004) (quoting Rail

Abandonments—Use of Rights-of-Way as Trails, 2 I.C.C. 2d

591, 596 (1986)). “Section 8(d) provides that a railroad

wishing to cease operations along a particular route may

negotiate with a State, municipality, or private group that is

prepared to assume financial and managerial responsibility

for the right-of-way. If the parties reach agreement, the land

may be transferred to the trail operator for interim trail use,

subject to [STB]-imposed terms and conditions . . . .”

Preseault I, 494 U.S. at 6–7 (footnote omitted); see also

16 U.S.C. § 1247(d); 49 C.F.R. § 1152.29 (2012). The STB

will issue a NITU, and the railroad corridor is “railbanked.”

See, e.g., 49 C.F.R. § 1152.29(d)(1)–(2) (2016); Caldwell,

391 F.3d at 1229.

The question of how “railbanking” affects the underlying

property rights in a corridor turns on state law. To

understand why, it is helpful to consider the Federal Circuit’s

rails-to-trails takings jurisprudence. In the years since the

HORNISH JOINT LIVING TRUST V. KING COUNTY 23

Trails Act’s enactment, the Court of Federal Claims has been

inundated with Tucker Act claims alleging that the Trails

Act’s preclusion of state law caused a taking of their

property interests, for which the landowners were entitled to

just compensation under the Fifth Amendment. To decide

these cases, that court has been required to determine what

property interests were taken when each corridor was

railbanked; only once the court determined what was taken

could it determine how much (if any) compensation was due.

Consistently, the Federal Circuit has explained that “a

Fifth Amendment taking occurs when, pursuant to the Trails

Act, state law reversionary interests are effectively

eliminated in connection with a conversion of a railroad

right-of-way to trail use.” Caldwell, 391 F.3d at 1228 (citing

Preseault v. United States, 100 F.3d 1525, 1543 (Fed. Cir.

1996) (en banc) (“Preseault II”)). “The Trails Act prevents

a common law abandonment of the railroad right-of-way

from being effected, thus precluding state law reversionary

interests from vesting.” Jackson v. United States, 135 Fed.

Cl. 436, 443 (2017) (citing Caldwell, 391 F.3d at 1229).

And, it is “state law [that] creates and defines the scope of

the reversionary or other real property interests affected by

the [STB’s] actions pursuant to . . . 16 U.S.C. § 1247(d).”

Preseault I, 494 U.S. at 20 (O’Connor, J., concurring); see

also, e.g., Toews v. United States, 376 F.3d 1371, 1375 (Fed.

Cir. 2004) (determining scope of railroad easements under

California law); Preseault II, 100 F.3d at 1542 (determining

scope of railroad easements under Vermont law). Thus, to

determine whether there has been a taking in a rails-to-trails

case involving a railroad easement, a court must determine

whether, as a matter of state law, the scope of the railroad

easement was limited to railroad purposes or broad enough

to encompass future use as a recreational trail. See, e.g.,

Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373

24 HORNISH JOINT LIVING TRUST V. KING COUNTY

(Fed. Cir. 2009) (citing Preseault II, 100 F.3d at 1533). If

the railroad possessed an easement limited to railroad

purposes, such that the corridor’s use as a recreational trail

normally would trigger the easement’s abandonment under

state law, then the Trails Act deprived Plaintiffs-Appellants

of their reversionary rights and caused a taking. See, e.g.,

Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010)

(holding that a taking occurs in a rails-to-trails case “when

government action destroys state-defined property rights by

converting a railway easement to a recreational trail, if trail

use is outside the scope of the original railway easement”);

Jackson, 135 Fed. Cl. at 444 (“If standard abandonment had

occurred . . . , the railroad, as the owner of the servient

estate, would not retain any property interest in the right-of-

way, and that property interest would revert to the dominant

landowner. Thus, the Trails Act, in preventing this

reversion, effects a taking.” (citation omitted)); Balagna v.

United States, 135 Fed. Cl. 16, 22 (2017) (“If the railroad

acquired an easement limited only to railroad purposes, . . .

then the issuance of the NITU interferes with the plaintiff’s

state law property rights and triggers the application of the

Takings Clause.”). In essence, the Government, through the

Trails Act, has taken the landowner’s reversionary property

right and created a new easement for trails use. See Toews,

376 F.3d at 1376 (“[I]f the Government uses . . . an existing

railroad easement for purposes and in a manner not allowed

by the terms of the grant of the easement, the Government

has taken the landowner’s property for the new use. The

consent of the railroad to the new use does not change the

equation—the railroad cannot give what it does not have.”);

Preseault II, 100 F.3d at 1550 (“The taking of possession of

the lands . . . for use as a public trail was in effect a taking of

a new easement for that new use, for which the landowners

are entitled to compensation. . . . [It resulted in] a new

HORNISH JOINT LIVING TRUST V. KING COUNTY 25

easement for the new use, constituting a physical taking of

the right of exclusive possession . . . .”).

Here then, to determine the impact of the Trails Act on

Plaintiffs-Appellants’ property rights, we must look to

Washington law. As noted, the parties agree that because no

original deeds for the portions of the Corridor adjacent to

which the Non-Hornish Plaintiffs-Appellants own land were

put into evidence, the railroad easement was a prescriptive

easement with regard to those portions of the Corridor.

Under Washington law, a prescriptive easement is

“established only to the extent necessary to accomplish the

purpose for which the easement is claimed.” Yakima Valley

Canal Co. v. Walker, 455 P.2d 372, 374 (Wash. 1969).

Thus, a prescriptive railroad easement exists “to the extent

necessary” to operate a railroad. Accordingly, Washington

common law dictates that “a change in use from ‘rails to

trails’” will “constitute[] abandonment” of such easement.

Lawson v. State, 730 P.2d 1308, 1313 (Wash. 1986). And,

upon that abandonment, in the ordinary case, “the right of

way would automatically revert to the reversionary interest

holders.” Id.

However, this is not an ordinary case, because here, the

Trails Act has stopped the reversion from occurring. It has

prevented abandonment of the railroad easement in the event

of trail use—a use outside of those necessary for railroad

purposes—and thereby preserved the original railroad

easement. However, this application of the Trails Act has,

in effect, created a new easement for a new use—for

recreational trail use. The railroad and its successors in

interest now have two easements: (1) the easement for

railroad purposes, which they never abandoned (because of

the Trails Act) and therefore retain, and (2) the new

26 HORNISH JOINT LIVING TRUST V. KING COUNTY

easement for recreational trail purposes. See Preseault II,

100 F.3d at 1550.

Here, the railroad chose to convey its ownership interest

in the Corridor to TLC by quitclaim deed. TLC then initiated

the railbanking process, the STB issued a NITU, and the

Corridor was “railbanked.” At that point, TLC conveyed all

of its ownership interests in the Corridor to King County

through a duly recorded quitclaim deed. For the reasons

outlined above, this conveyed to King County both the

railroad’s original, unabandoned easement for railroad

purposes and the new easement for recreational trail

purposes that the Trails Act had created. See Trevarton v.

South Dakota, 817 F.3d 1081, 1087 (8th Cir. 2016) (holding

that when railroad conveyed its railroad easement to the

defendant through a quitclaim deed, the defendant also

acquired the “new easement” created by the Trails Act).

Since there is no evidence that King County has

subsequently used these easements in a manner inconsistent

with their purposes (which could trigger abandonment under

state law), we hold that King County possesses the railroad

and recreational trail easement. 4

4

Though this result may seem harsh, it is essential to note that

[a] conveyance . . . under the Trails Act [does] not leave [the

former reversionary interest holders] without a remedy . . . .

Indeed, it [leaves] them with a variety of possible remedies—

for example, a takings action seeking compensation because

[the trail sponsor’s] new easement diminished the property

rights [the landowners] enjoyed when the right-of-way was

limited to railroad uses; or a court action claiming that [the trail

sponsor is] unlawfully managing the Trail as a matter of federal

or state law; or a petition to the STB claiming that [the trail

sponsor’s] management of the Trail impairs restoration of the

right-of-way to railroad use. And of course [landowners] can

negotiate with state officials to allow [them] reasonable access

HORNISH JOINT LIVING TRUST V. KING COUNTY 27

C. The Centerline Presumption Does Not Apply

The Non-Hornish Plaintiffs-Appellants contend that

notwithstanding King County’s easement, they have

standing because Washington’s “centerline presumption”

gives them a property right in the Corridor (i.e., a “direct,

substantial interest”). We disagree.

Washington’s “centerline presumption” was first

recognized by the Washington Supreme Court in Roeder

Company v. Burlington Northern, Inc., 716 P.2d 855 (Wash.

1986). There, the court first applied “the ‘highway

presumption’ . . . to railroad rights of way,” and held that, in

general, “the conveyance of land which is bounded by a

railroad right of way will give the grantee title to the center

line of the right of way if the grantor owns so far, unless the

grantor has expressly reserved the fee to the right of way, or

the grantor’s intention to not convey the fee is clear.” Id. at

861. Thus, the court reasoned, when a “deed refers to the

grantor’s right of way as a boundary without clearly

indicating that the side of the right of way is the boundary, it

is presumed that the grantor intended to convey title to the

center of the right of way.” Id.

When, however, a deed refers to the right of

way as a boundary but also gives a metes and

bounds description of the abutting property,

the presumption of abutting landowners

taking to the center of the right of way is

rebutted. A metes and bounds description in

and use of the right-of-way for their ranch operations, as they

presumably negotiated with railroad operators in the past.

Trevarton, 817 F.3d at 1087.

28 HORNISH JOINT LIVING TRUST V. KING COUNTY

a deed to property that abuts a right of way is

evidence of the grantor’s intent to withhold

any interest in the abutting right of way, and

such a description rebuts the presumption

that the grantee takes title to the center of the

right of way.

Id. at 861–62.

Additionally, the Roeder court clarified that the

centerline presumption is of limited applicability. An

abutting landowner is not automatically entitled to the

centerline presumption. Id. at 862 (“A property owner

receives no interest in a railroad right of way simply through

ownership of abutting land.”). Thus, an adjoining landowner

may not invoke the centerline presumption if he presents “no

evidence of having received his or her property from the

owner of the right of way.” Id. “Without evidence showing

that the owner of abutting property received that property

from the fee owner of the right of way property, the railroad

presumption is inapplicable.” Id.

The district court found that the centerline presumption

did not apply here. First, the court held that all of the Non-

Hornish Plaintiffs-Appellants’ deeds “contain[ed] metes and

bounds descriptions which use the right of way as a

boundary line.” Second, the court held that the Non-Hornish

Plaintiffs-Appellants had failed to provide the requisite

evidence of their interest, because they “[did] not succeed in

establishing chain of title.” Their property interests derived

from a common grantor, Middleton, in whose probate the

Corridor was specifically excluded. The district court

therefore concluded that the centerline presumption was

inapplicable, in light of “the Court’s rulings on the other

issues presented [that] establish the parties’ respective

HORNISH JOINT LIVING TRUST V. KING COUNTY 29

rights,” and also not a determinative, material dispute that

could preclude summary judgment.

We agree. The Non-Hornish Plaintiffs-Appellants

cannot invoke the centerline presumption because (1) the

grantor, Middleton “expressly reserved the fee to the right of

way,” Roeder, 716 P.2d at 861, and (2) the Non-Hornish

Plaintiffs-Appellants deeds and chains of title utilize the

railway as a boundary, as the district court determined. The

centerline presumption does not afford the Non-Hornish

Plaintiffs-Appellants any property interest in the Corridor.

Without such an interest, these Plaintiffs-Appellants lack

standing to bring their declaratory judgment claims. The

district court’s denial of summary judgment to Plaintiffs-

Appellants and dismissal of the AC on this basis are

affirmed.

II. The District Court Properly Granted Summary

Judgment to and Quieted Title in King County

A. King County Possesses the Railroad Easement

and Recreational Easement

As described above, King County acquired its property

interests through a series of conveyances undertaken

pursuant to the Trails Act. When TLC conveyed all of its

ownership interests in the Corridor to King County through

a duly recorded quitclaim deed, TLC conveyed to King

County both the railroad’s original, unabandoned easement

for railroad purposes and the new easement for recreational

trail purposes that the Trails Act had created. See Trevarton,

817 F.3d at 1087; Preseault II, 100 F.3d at 1550. As there

is no evidence that King County has subsequently used these

easements in a manner inconsistent with their purposes

(which could trigger abandonment under state law), we hold

that King County possesses the railroad and recreational trail

30 HORNISH JOINT LIVING TRUST V. KING COUNTY

easement. The railroad easement encompasses the full

extent of incidental uses that may be authorized under

Washington law. 5 See Wash. Sec. & Inv. Corp. v. Horse

Heaven Heights, Inc., 130 P.3d 880, 886 (Wash. Ct. App.

2006); Kershaw Sunnyside Ranches, Inc. v. Yakima

Interurban Lines Ass’n, 91 P.3d 104, 115 (Wash. Ct. App.

2004), aff’d in part, rev’d in part on other grounds, 126 P.3d

16 (Wash. 2006).

B. The Easement’s Width Adjacent to the Non-

Hornish Plaintiffs-Appellants’ Properties Is 100

Feet

Plaintiffs-Appellants claim that the railroad “utilized a

width of approximately 12 feet for their actual railroad

operations for over 100 years from 1888 until 1998.”

Defendants-Appellees dispute this, arguing that the Corridor

is 100 feet wide, except where it is fifty feet wide next to the

Morel Plaintiffs-Appellants’ property and is approximately

seventy-five feet wide next to the Menezes and

Vanderwende Plaintiffs-Appellants’ properties.

Defendants-Appellees also observe that “[a]t various times

in this litigation, Appellants have claimed the Railroad

actually needed a width ‘between 12 feet and 20 feet,’ “no

greater than 18 feet,” fourteen feet, (‘7 feet from center line’

on both sides ‘of the tracks’), and ‘approximately 12 feet.’”

In support of their current 12-foot-width argument,

Plaintiffs-Appellants primarily rely on the declaration of

5

Because the identity of such permitted incidental uses has not been

disputed in this case, we do not opine as to what such uses might be. See

Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164 n.4 (9th Cir. 2014)

(holding that where an issue is mentioned without legal argument, the

issue is neither specifically nor distinctly argued and thus not subject to

review).

HORNISH JOINT LIVING TRUST V. KING COUNTY 31

Eugene and Elizabeth Morel (the Morel Declaration). The

Morels assert that at their property, which is “located along”

and “bisected” by a portion of the Corridor, the Corridor has

a width of 10 feet. The original house on the property was

built in the 1920s and ‘30s, and “was more than 50% inside

the [right-of-way] width claimed by King County.” The

Morels claim that they have paid taxes on the parts of the

home and property that fall within the land claimed by King

County. An access driveway “was and is still today” within

that right-of-way. The Morels improved an area on the east

side of the track, “about 7 feet from [the] center line of the

tracks,” which they used to park cars. To access their house,

they would cross the tracks and walk down stairs to it. The

Morels also improved the land by adding “privacy trees,”

other landscaping, irrigation, patios, and child swing sets.

No rail operator ever asked the Morels to stop or limit these

uses of the land.

Then, in 1996, the Morels obtained a quitclaim deed

from BNSF granting them “clear title to the outside 25 feet

on both the east and west sides of the [right-of-way].” This

allowed the Morels to replace the original house with a new

house, the construction of which finished in 2001. The

Morels claim that “driveways, walkways, landscaping and

other improvements were installed during construction” that

are “clearly on land that King County claims they own via

prescriptive easement.” The Morels also assert that there is

an “8 foot diameter boulder, estimated to weigh about

6 tons” that sits on the lot owned by the Neighbors Plaintiffs-

Appellants. One of the Morels played on the rock as a child,

in the 1950s. The Morels assert that this rock proves the

right-of-way is no more than 12 feet in width because the

“rock is just over 6 feet from the centerline of the [right-of-

way] corridor” and the railroad has never removed it.

32 HORNISH JOINT LIVING TRUST V. KING COUNTY

Plaintiffs-Appellants also rely on the declaration of John

Rall (the Rall Declaration), a private consultant with a

bachelor’s degree in civil engineering and a “Professional

Land Surveying License” from the state of Georgia. Rall

indicates that he has reviewed the chains of title relating to

the Plaintiffs-Appellants’ chains of title, and determined that

they evidence that

[1] [n]o deed in the chains of title expressly

reserved the fee portion underlying the

Railroad Right-of-way unto any predecessor

grantor; [2] [e]ach grantor . . . granted all

interest that they owned, including their

interest in the railroad right-of-way; . . . and

[3] [e]ach of the current [Plaintiffs-

Appellants] acquired their interests in the

former railroad right-of-way from their

predecessor in interests and are the current

owners of the underlying fee in the current

easement held by King County for hiking and

biking purposes with the potential future

reactivation of a railroad.

In support of their claim that the Corridor has a 100-foot

width, Defendants-Appellees introduced “[o]fficial agency

records from the Interstate Commerce Commission (‘ICC’),

known as the 1917 Val Maps.” The Val Maps were drawn

pursuant to the 1913 Valuation Act, which required the ICC

“to make an inventory which shall list the property of every

common carrier subject to the provisions of this Act in detail,

and show the value thereof as hereinafter provided, and shall

classify the physical property, as nearly as practicable.” Pub.

L. No. 62-400, § 19(a), 37 Stat. 701, 701 (1913) (former

49 U.S.C. § 10781). During this inventory, engineers

devised the Val Maps to document “the land owned by a

HORNISH JOINT LIVING TRUST V. KING COUNTY 33

railroad and how it was acquired, the land adjacent to

railroad property, and the financial history of the railroad

from its earliest operations to the date of basic valuation.”

Defendants-Appellees contend that the maps prove that the

width of the relevant portions of the Corridor has long been

100 feet. First, the Maps indicate that the Railroad originally

acquired 4.71 acres of land in the 2,050-foot-long segment

adjacent to the Neighbors, Morel, and Menezes and

Vanderwende Plaintiffs-Appellants’ properties, Parcel 6, by

way of adverse possession. Second, the Maps indicate that

the segment adjacent to the Lake Sammamish 4257 LLC and

the Moore Plaintiffs-Appellants’ property, Parcel 13, is

3.29 acres and 1,434.4 feet long. Defendants-Appellees

claim these measurements confirm the Corridor’s 100-foot

width.

Defendants-Appellees have also introduced certain of

the King County Assessor’s records. These records

document a change in “the area owned by Mr. Middleton in

1891 and later years,” which Defendants-Appellees argue

“confirms the creation of a one hundred feet Corridor in Lot

2 of Section 7, Township 24 North, Range Six East of the

Willamette Meridian, which eventually became the source

of the parcels owned by the Neighbors, Morel, and Menezes

and Vanderwende [Plaintiffs-Appellants].” Defendants-

Appellees claim that “[t]he Assessor Rolls confirm the

Railroad also acquired a one hundred foot Corridor in Lot 3

of Section 17, which became the source of the property

owned by Lake Sammamish 4257 LLC and the Moore

[Plaintiffs-Appellants].” Additionally, the King County

Assessor’s maps exclude the one hundred foot Corridor from

Appellants’ properties, consistent with tax assessments

dating back to 1895. Notably, Plaintiffs-Appellants offered

no proof that they have ever paid property taxes within the

Corridor.

34 HORNISH JOINT LIVING TRUST V. KING COUNTY

Additionally, Defendants-Appellees argue that the

actions of Plaintiffs-Appellants and their predecessors-in-

interest comport with an understanding of the 100-foot

width. For example, the Morel Plaintiffs-Appellants

acquired their property from Eugene Morel’s parents, who

acknowledged that the Corridor was one hundred feet wide

when they purchased a “portion of [BNSF’s] 100.0 foot wide

Snoqualmie Branch Line right of way” from the Railroad on

May 23, 1996, and left the railroad with the 50 feet it still

has today. And the predecessor of the Menezes and

Vanderwende Plaintiffs-Appellants, Lynn Goldsmith, filed

an adverse possession lawsuit against the Railroad, disputing

the Railroad’s “claim[] that the right of way is 100 ft. in

width – 50 ft. on each side of its centerline.” Goldsmith

settled her claims in exchange for a narrow strip of land from

BNSF, implicitly acknowledging that the remainder of the

Corridor—roughly seventy-five feet wide—belonged to

BNSF (and now King County). Such attempts to buy land

are inconsistent with a belief in one’s right of possession. Cf.

City of Port Townsend v. Lewis, 75 P. 982, 983 (Wash. 1904)

(finding that purported possessors’ “contesting with the

officers of the state and municipality their claim of a

preference right to purchase the[] very lands” they claimed

to possess was conduct “wholly inconsistent with the idea of

an adverse possession”); Jensen v. Compton, 131 Wash.

App. 1064, 2006 WL 616052, at *3 (2006) (holding that

defendant’s offer to purchase undermined his adverse

possession claim).

Finally, Defendants-Appellees provide evidence that a

100-foot-width is necessary for railroad operations. For

example, Mike Nuorala, a longtime engineer for BNSF,

stated in his declaration that the full width of the right of way

is necessary as a “safety buffer to ensure minimum setbacks

between freight trains and residential development, to

HORNISH JOINT LIVING TRUST V. KING COUNTY 35

prevent nearby construction and development activities that

could undermine the stability of the steep slopes above and

below the tracks, and to provide access for maintenance

activities, such as tie replacement, that require significant

clearance on one or both sides of the track.”

Lining this evidence up alongside Plaintiffs-Appellants’,

it is clear that most of Defendants-Appellees’ evidence is

unrebutted. The Rall Declaration is inadmissible, because it

offers only Rall’s interpretation of the relevant deeds, and

“[r]esolving doubtful questions of law is the distinct and

exclusive province of the trial judge.” Nationwide Transp.

Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir.

2008) (quoting United States v. Weitzenhoff, 35 F.3d 1275,

1287 (9th Cir. 1993)); see also Washington v. Maricopa

County, 143 F.2d 871, 872 (9th Cir. 1944) (holding that

affidavits containing “statements of legal conclusions . . .

should have been disregarded” in resolving summary

judgment motion). And, the Morel Declaration, at most,

creates a genuine issue of fact regarding the historic width

of the Corridor adjacent to only the Morels’ property with its

statement that the Morel family previously had a home

inside the claimed Corridor. However this dispute is not

material; the current width of the Corridor adjacent to the

Morels’ property is undisputed because of the Morel

family’s 1996 purchase of land from the railroad. Because

Plaintiffs-Appellants have not introduced any admissible

evidence to support their claimed 12-foot width, and

Defendants-Appellees have introduced considerable

evidence supporting their claimed 100-foot width, there is

no genuine dispute of material fact with regard to the width

of the Corridor. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251–52 (1986) (holding that summary

judgment standard is met where the evidence is “so one-

sided that one party must prevail as a matter of law”). The

36 HORNISH JOINT LIVING TRUST V. KING COUNTY

width of the Corridor is 100 feet, except where fifty feet wide

next to the Morel Plaintiffs-Appellants’ property and

approximately seventy-five feet wide next to the Menezes

and Vanderwende Plaintiffs-Appellants’ properties. 6

C. Plaintiffs-Appellants’ Motion to Supplement the

Record

Also pending in this case is Plaintiffs-Appellants’

motion to supplement the record on appeal with certain

evidence that was not before the district court. (Dkt. No. 57).

Specifically, Plaintiffs-Appellants seek to add certain

evidence and testimony introduced by Plaintiffs-Appellants

in a similar case, Neighbors v. King County, which they

contend contradicts Defendants-Appellees’ claim that the

corridor at issue here had a consistent width of 100 feet and

supports Plaintiffs-Appellants’ argument that the width is

much less.

Defendants-Appellees oppose this motion, (Dkt. No.

61), which they point out was not made until nearly

18 months after the district court proceedings had

concluded. Defendants-Appellees contend that Plaintiffs-

Appellants made the strategic decision to argue below that

Defendants-Appellees’ payment of taxes and fees was

irrelevant, and that Plaintiffs-Appellants should now be held

to that choice on appeal. Defendants-Appellees also note

that the evidence Plaintiffs-Appellants seek to introduce

includes declarations written by Plaintiffs-Appellants

themselves, and that Plaintiffs-Appellants have offered no

6

Because we resolve the case on these grounds we do not reach the

district court’s holding in the alternative that King County acquired

property rights in the Corridor pursuant to Washington Revised Code

section 7.28.070.

HORNISH JOINT LIVING TRUST V. KING COUNTY 37

explanation as to why this evidence was not available at the

time of the summary judgment proceedings below. Finally,

Defendants-Appellees argue that the submitted materials are

not the proper subject for judicial notice, and that there has

been no showing of extraordinary circumstances.

We agree with Defendants-Appellees. Plaintiffs-

Appellants had a full opportunity to acquire these records

during discovery, and simply failed to do so. Plaintiffs-

Appellants have not offered any explanation for their failure

to undertake discovery relating to King County’s payment of

taxes and to procure and produce their own property tax

records in response to King County’s discovery. Indeed,

below Plaintiffs-Appellants explained only that they were

not obtaining this discovery because they believed it

irrelevant. It is only now, after the district court has

disagreed with that belief and credited Defendants-

Appellees’ argument, that Plaintiffs-Appellants have felt

compelled to act. And yet even now, Plaintiffs-Appellants

have not procured this discovery on their own. They only

became aware of it when it was filed fortuitously in a

separate case.

On appeal of summary judgment, courts generally

consider only the record that was before the district court.

United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir.

2007). This court will make “exceptions to this general rule

in three situations: (1) to ‘correct inadvertent omissions from

the record,’ (2) to ‘take judicial notice,’ and (3) to ‘exercise

inherent authority . . . in extraordinary cases.’” Id.

(alteration in original) (quoting Lowry v. Barnhart, 329 F.3d

1019, 1024 (9th Cir. 2003)).

38 HORNISH JOINT LIVING TRUST V. KING COUNTY

Neither of the first two exceptions could apply here.

Plaintiffs-Appellants have made no argument that these

documents were omitted by mistake or by accident. Rather,

the record makes clear that they were omitted for a tactical

reason—because Plaintiffs-Appellants had concluded they

were irrelevant. Additionally, the contents of the records are

not a matter of which the court can take judicial notice. Even

if the records are filed on the public docket of the Neighbors

case, we can take judicial notice only of the filing of the

documents, and not of the truth of the documents’ contents.

See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los

Angeles, 250 F.3d 668, 690 (9th Cir. 2001).

Thus, only the third exception remains for our

consideration. However, Plaintiffs-Appellants have not

explained in their moving papers or at oral argument what

extraordinary circumstances prevented their timely

introduction of such evidence as their own declarations in

this case. Moreover, there seems to be nothing extraordinary

about Plaintiffs-Appellants’ situation. Plaintiffs-Appellants

were well aware that the width of the Corridor was at issue

at summary judgment, and that it was their burden to

introduce evidence supporting their claim that the width was

no greater than 12 feet. Plaintiffs-Appellants believed the

Morel and Rall Declarations were sufficient, and declined to

obtain the additional evidence that was available to them.

We see no reason why now they should be freed from the

consequences of that strategic decision. Plaintiffs-

Appellants’ motion to supplement the record is denied.

CONCLUSION

For the foregoing reasons, we affirm the district court’s

denial of summary judgment to Plaintiffs-Appellants,

dismissal of the AC, and grant of summary judgment and

HORNISH JOINT LIVING TRUST V. KING COUNTY 39

quiet title to King County. We also deny Plaintiffs-

Appellants’ motion to supplement the record.

AFFIRMED.