Opposition Brief — Rasmussen v. King County

Smpsome Court, U.S.

re FILED

J) APR 23 2003

No. 02-1397

ORPECE. OFTHE CLERK

In the

Supreme Court of the Anited States

JOHN RASMUSSEN, ET UX.,

Petitioners,

V.

KiNG County, WASHINGTON,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES Court OF APPEALS

For Tue NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

NorM MALENG

KING COUNTY PROSECUTING ATTORNEY

Scott D. JOHNSON

Counsel of Record

SENIOR DEPUTY PROSECUTING ATTORNEY

Civit DrvIsiON-TRANSPORTATION SECTION

500 FourtH AVENUE, 9TH ELOoR -

SEATTLE, WA 98104

(206) 296-0437

Counsel for Respondent

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

TABLE OF CONTENTS

Applicable Constitutional Provisions, Statutes,

Ordinances and Regulations

Statement of the Case

a District Court’s Jurisdiction

Reasons for Denying Writ

ae The Decision below Is Consistent with

Federal and State Law Regarding

Transfer of Legal Title to the Lands at

The land transferred to

Hilchkanum by the _ federal

government was not “non-

federal land”

Ninth Circuit applied the

correct legal rules in deciding

whether the Hilchkanum could

convey fee simple title to the

Railway prior to issuance of the

Conclusion

on No Need to Apply State Rules

Regarding After-Acquired

i. Pee ere Te eee

D. Court Properly Applied State

Law in Interpreting

Hilchkanum Deed to Railway .

E. No Departure From the Usual

Course of Judicial Proceedings

6 & @ 5. 26 Oe Ce Pe SCS SS Se .S.2

Other Issues Raised Are Irrelevant to

Question Presented and Are Simply

ee ee

A. Not Appropriate to Examine

Other Deeds ......--e0%;

B.’ The District Court did not Have

Jurisdiction to Consider the

Spur Line Issue or Any Other

Challenge to the STB Decision ..

C. Ninth Circuit Properly Refused

to Consider Ordinances Cited

by Petitioners ...........-.-.-

li

. 10

13

TABLE OF AUTHORITIES

CASES

Brown v. State, 130 Wn.2d 430,

Se ee Ce go ei ev eliswueen 10, 11

California Ass’n of the Physically Handicapped, Inc. v. FCC,

ew Gk td fe a); re 13

Chem-Haulers, Inc. v. U.S.,

ee es, ) 13

Cornelius v. Kessel, 128 U.S. 456, 9 S.Ct. 122,

RR ae ee a ee 8

Dave v. Rails-to-Trails Conservancy,

Pee we GO. IBOD nw ws oe ceca 13

Friends of the Atglen-Susquehanna Trail, Inc. v. STB,

aoe Foe ae CO Cir. BOU1) ww www ee es 13

Glosemeyer v. Missouri-Kansas-Texas R.R..,

879 F.2d 316 (8" Cir. 1989) ............. 13

Grantwood Village v. Missouri Pacific R.R. Co.,

95 F.3d 654 (8" Cir. 1996) .............. 13

Lousiana-Pacific Corp. v. Texas Dept. of Transp.,

43 F.Supp.2d 708 (E.D.Tex. 1999) ......... 13

McCune v. Essig, 199 U.S. 382, 26 S.Ct. 78,

SP UR nk sce sek eae aee es 7

ili

Patenaude v. Equitable Life Assurance Soc’y

of United States,

290 F.3d 1020 (9" Cir. 2002) ..-.----+-+0> 3

Ruth v. U.S., 37 Fed.Cl. 677 (1997)... +--+ sce 8

Simmons v. Wagner, 101 U.S. 260, 11 Otto 260,

roam. Oty, Se 7

Texas v. US, 749 F.2d 1144 (5" Cir. 1985),

reh. denied, 756 F.2d 882,

cert, denied, 472 U.S. 1032, 105 S.Ct. 3513,

Le. + | Sree ern eee ee ee, 13

U.S. v. Detroit Timber & Lumber Co.,

200 U.S. 321, 26 S.Ct. 282,

50 L.Ed. 499 (1906) ....-- eee eee eee 7,8

Wilcox v. Jackson, 38 U.S. 498, 13 Pet. 498,

10 L.Ed. 264 (1839) .....-- eee e cere eee 6,7

STATUTES

wT | rere 1, 3, 4, 10

Poe ol ee 13

28 U.S.C. § 23425)... eee eee eee ttts 13

98 U.S.C. 82044... eee eee ees eck ivets 2, 13

MUSE BI qo. o6 Ss create 3

Py eer ee. 14

iV

eee Pe vee rng

45 US.C. $ SDL cteeg. 2. ca clncccccs 1

17 Stat. 602 (1873) (codified at § 2288) ...... 1, 6, 8-10

in COCR +5 600s oN eee eee 8

aw COCQIRD vn 6c ss veces dudes beeen 2,9

ew COME 6 iss ee eee ee 11

APPLICABLE CONSTITUTIONAL PROVISIONS,

STATUTES, ORDINANCES AND REGULATIONS

- Act of March 3, 1873, ch. 266, 17 Stat. 602 (1873).

Any person who has already settled or

hereafter may settle on the public lands, either

by pre-emption, or by virtue of the homestead

law or any amendments thereto, shall have the

right to transfer, by warranty against his own

acts, any portion of his pre-emption or

homestead for church, cemetery, or school

purposes, or for the right of way of railroads

across such pre-emption or homestead, and the

transfer for such puolic purposes shall in no

way vitiate the right to complete and perfect

the title to their pre-emption or homestead.

Codified at Sec. 2288, Revised Statutes of the

United States (1878).

2. 16 U.S.C. 1247(d). Interim use of railroad rights-of-

way.

The Secretary of Transportation, the Chairman

of the Surface Transportation Board, and the

Secretary of the Interior, in administering the

Railroad Revitalization and Regulatory Reform

Act of 1976 (45 U.S.C. 801 et seq.), shall

encourage State and local agencies and private

interests to establish appropriate trails using

the provisions of such programs. Consistent

with the purposes of that Act, and in

furtherance of the national policy to preserve

established railroad rights-of-way for future

j 1

reactivation of rail service, to protect rail

transportation corridors, and to encourage

energy efficient transportation use, in the case

of interim use of any established railroad

rights-of-way pursuant to donation, transfer,

lease, sale, or otherwise in a manner consistent

with this chapter, if such interim use is subject

to restoration or reconstruction for railroad

purposes, such interim use shall not be treated,

for purposes of any law or rule of law, as an

abandonment of the use of such rights-of-way

for railroad purposes...

3. RCW 64.04.050. Quitclaim deed - Form and effect.

Quitclaim deeds may be in substance in the

following form: The grantor (here insert the

name or names and place of residence), for

and in consideration of (here insert

consideration) conveys and quitclaims to (here

insert grantee’s name or names) all interest in

the following described real estate (here insert

description), situated in the county of ...., state

of Washington....

4. 28 U.S.C. §2344. Review of orders; time; notice;

contents of petition; service.

On the entry of a final order reviewable under

this chapter, the agency shall promptly give

notice thereof by service or publication in

accordance with its rules. Any party

aggrieved by the final order may, within 60

days after its entry, file a petition to review the

order in the court of appeals wherein venue

2

lies. The action shall be against the United

States...

STATEMENT OF THE CASE

1. DISTRICT COURT’S JURISDICTION.

As the Ninth Circuit found, the District Court’s

jurisdiction over this matter was pursuant to 28 U.S.C.

§ 1331 (federal question). Petition App. at 9. The Ninth

Circuit correctly applied the well-pleaded complaint rule. Id.

(citing Patenaude v. Equitable Life Assurance Soc’y of United

States, 290 F.3d 1020, 1023 (9" Cir. 2002)).' In its

Complaint, King County pled, in the alternative, that it had a

legal right to “maintain, use, enjoy and develop the subject

property” as a recreation tiail even if the County’s

predecessors only acquired an easement for use of the subject

property for railroad purposes. The source of this legal right

is 16 U.S.C. §1247(d), the Rails to Trails Act.

2. FACTS

Bill Hilchkanum filed a homestead application on June

28, 1876 under the Homestead Act of 1862. After making

final proof, Mr. Hilchkanum was issued a Final Certificate on

March 29, 1884, by the Register of the Land Office at

Olympia, Washington Territory. A patent was issued to Mr.

Hilchkanum on July 24, 1888. :

' Petitioners argue that the district court lost its jurisdiction when it

dismissed Petitioners’ counterclaims. Petition at 2. However, the

court’s jurisdiction must be based on the contents of the Complaint,

not Petitioners’ counterclaims.

By deed dated May 9, 1887, Bill H Ichkanum and his

wife (“Hilchkanums”) conveyed to the Seattle Lake Shore and

Eastern Railway Company (the “Railway”), a portion of the

land the Hilchkanums obtained under the Homestead Act.

The property conveyed to the Railway consisted of a

continuous, 100’- wide strip of land, over one mile long,

running along the eastern shore of Lake Sammamish in King

County, Washington. The 100’- wide strip of land bisects

what was Petitioners’ residential property.? The subject of

this litigation is the portion of this strip of land to which

Petitioners’ property is adjacent (“subject property”). The

strip of land conveyed by Hilchkanum to the Railway is just

one segment of the East Lake Sammamish rail corridor (“the

corridor” or “the ELS corridor”) which runs approximately

11 miles along the shore of Lake Sammamish.

In early 1997, the Burlington Northern and Santa Fe

Railway, successor in interest to the Railway, sold the entire

ELS corridor, including the subject property, to a non-profit

organization, The Land Conservancy of Scattle and King

County (“TLC”).

On June 11, 1997, TLC petitioned the United States

Surface Transportation Board (“STB”) to abandon use of the

ELS corridor for rail service. On September 16, 1998, as

authorized by 16 U.S.C. § 1247(d), the STB approved interim

trail use (a.k.a. “railbanking”) of the ELS corridor by King

County and issued a Notice of Interim Trail Use (“NITU”).

Shortly after the NITU was issued, King County then entered

into an agreement with TLC to purchase approximately 11

miles of the ELS corridor, including the subject property. By

* Petitioners transferred title to this residential property to a third-

party by deed dated August 21, 2002 and recorded September 5,

2002.

virtue of its purchase of the ELS corridor, King County has

become the successor in interest to the Railway, and holds

title to the subject property in fee simple.

In answer to a quiet title action filed by King County

in state court, Petitioner challenged King County’s ownership

of the property and removed the matter to federal district

court. The District Court held - and the Ninth Circuit Court

of Appeals affirmed - that King County owns the subject

property in fee simple. In their Question Presented,

Petitioners seek review of the Ninth Circuit’s decision by

alleging, inter alia, that the court created new federal law

and, in doing so, superseded established state law. As the

following will establish, Petitioners’ Question Presented does

not accurately reflect the Ninth Circuit’s decision and other

claims by Petitioners are wholly without merit.

REASONS FOR DENYING WRIT

a THE DECISION BELOW IS CONSISTENT WITH

FEDERAL AND STATE LAW REGARDING

TRANSFER OF LEGAL TITLE TO THE LANDS

AT ISSUE.

A. The land transferred to Hilchkanum

by the federal government was not

“non-federal land”.

Petitioners’ Question Presented is premised in part on

an inaccurate presumption that the land at issue was

“exclusively non-federal land”. Petition at 1 (emphasis

added). At ! times prior to Hilchkanum taking title, the

land in quesiion was federal land. As evidenced by the

issuance of the final certificate and, subsequently, the patent,

the land was part of the public domain prior to Hilchkanum’s

5

entry. As discussed further below, because the land was in the

public domain, federal law determines the validity of the

transfer of the land prior to issuance of the patent.

Furthermore, whether the Act of March 3, 1873, ch. 266, 17

Stat. 602 (1873)’, dictates the nature of the interest granted by

the Hilchkanums to the Railway is an issue only because the

land in question had been federal land. The statement that the

land was “non-federal” is only one of several false premises

from which Petitioners proceed.

B. Ninth Circuit applied the correct

legal rules in deciding whether the

Hilchkanum could convey fee simple

title to the Railway prior to issuance

of the patent.

The Ninth Circuit applied the correct law in reviewing

the transfer of the federal land to Hilchkanum and

determining that the Hilchkanums could transfer a fee simple

interest in those lands to the Railway prior to the issuance of

the patent. Federal law determines what constitutes a

transfer of land out of the public domain. Wilcox v. Jackson,

38 U.S. 498, 516-17 (Mem), 13 Pet. 498, 10 L.Ed. 264

(1839). The Court in Wilcox held:

... whenever the question in any Court, state or

federal, is, whether a title to land which has

once been the property of the United States has

passed, that question must be resolved by the

laws of the United States; but that whenever,

according to those laws, the title shall have

passed, then that property, like all other

> Codified at § 2288, Revised Statutes of the United States

(1878)and hereinafter referred to as “Section 2288".

6

property in the state, is subject to state

legislation; so far as that legislation is

consistent with the admission that the title

passed and vested according to the laws of the

United States.

Id. See also, McCune v. Essig, 199 U.S. 382, 389-90, 26

S.Ct. 78, 50 L.Ed. 237(1905)(citing Wilcox). According to

long-standing principles of federal law, the vesting of the

right to a patent in an individual is equivalent to the individual

obtaining title. See, e.g., U.S. v. Detroit Timber & Lumber

Co., 200 U.S. 321, 334-35, 26 S.Ct. 282, 50 L.Ed. 499

(1906). The issuance of the patent at that point is merely a

ministerial act. Id. at 335-36; and Simmons v. Wagner, 101

U.S. 260 (Mem), 261, 11 Otto 260, 25 L.Ed. 910 (1879).

Additionally, the effective date of the patent relates back to

the date the right to the patent vested. Detroit Timber at 334-

35. Therefore, the Ninth Circuit did not “create” new federal

law, it merely followed well-established rules of federal law.

Furthermore, in applying these rules, the Ninth Circuit did

not “supersede” state law since federal law - not state law -

governs the issue of whether the Hilchkanums could grant a

fee simple interest in the subject property prior to issuance of

the patent, i.e. whether title passed to the Hilchkanums prior

to issuance of the patent.

According to federal law, the Hilchkanums’ right to

the property at issue vested upon presenting final proof of a

valid homestead claim as documented by the issuance of the

final certificate. See Petition App. at 13. At that time, they

held title to the property against all claims other than by the

federal government. Once the patent was issued, title was

considered transferred to Hilchkanum effective the date of the

final certificate. Since the individual effectively holds title

against all others, the individual may alienate all or a portion

7

of his or her interest the property without affecting his or her

right to the patent. In Detroit Timber, the Court left in place

timber contracts entered into by defendant prior to issuance of

a patent to defendant. Id., 200 U.S. 321. In Cornelius v.

Kessel, the Court quieted title in the heirs of an individual to

whom property was conveyed after entry by the grantor but

prior to the issuance of a patent. Id., 128 U.S. 456, 9 S.Ct.

122, 32 L.Ed. 482 (1888). In fact, once the right to a patent

vests, state law, not federal law, governs such conveyances.

Id. at 338. See also, Ruth v. U.S., 37 Fed.Cl. 677, 684

(1997). Therefore, under federal law, the holder of the right

has equitable title and the authority to convey property prior

to the issuance of the patent.

Since the entryman obtains equitable title upon

issuance of the final certificate, it follows then that the Ninth

Circuit correctly determined that Section 2288 does not

restrict the type of transfers that could be made after final

proof has been accepted. Not only does the individual obtain

equitable title at that time, there also is no requirement that

any subsequent transfers be reported after final proof. The

purpose of Section 2288 is to identify transfers that would not

“vitiate the right to complete and perfect the title

to...homesteads.” Since title is perfected at the time of final

proof, Section 2288 has no application azter the final

certificate was issued. Hilchkanum had the right to transfer

any interest to the property upon receipt of the final

certificate. That right was further solidified into a legal right

by the issuance of the patent.

c. No Need to Apply State Rules

Regarding After-Acquired Property.

Petitioners imply that according to the state

conveyance statute, RCW 64.04.010, a patent was required

8

BB MOAR PEIN. tO RES: Eis

2 ee alanis

%

in order to effectuate the transfer from the federal government

to Hilchkanum. Petition at 15-16. Petitioners also assert that

state law regarding after-acquired property would apply since

the patent was issued after the deed to the Railway was

executed.* Id. at 16-17. However, given that federal law

governs the transfer of federal property and, pursuant to

federal law, Hilchkanum obtained equitable title to the

property at the time of the final certificate, there was no need

for the Ninth Circuit to consider the state law regarding either

the form of the conveyance from the federal government or

after-acquired property.’ Of course, the conveyance from the

Hilchkanums to the Railway would be subject to state law,

i.e. a deed was required. The Hilchkanums complied with

this requirement in transferring the fee simple interest in the

subject property to the Railway.

* Petitioners assert that the deed at issue is a “quitclaim deed”.

Petition at 17. However, the deed is not in the statutory form of a

quitclaim deed. RCW 64.04.050. The deed does not use the term

“quitclaims”. Instead, the Hilchkanum deed uses the words

“,..donate grant and convey..”

* Petitioners’ arguments in this area are inconsistent because they

allow that Hilchkanum, pursuant to Section 2288, could have

conveyed a railroad right of way prior to the patent issuing without

violating state law. Petition at 17. Yet, they argue that conveying

other property prior to the patent issuing would have been a

violation of state law. Perhaps Petitioners are implying that the

former is allowed since a federal statute authorizes the conveyance.

Given that federal law also allows the latter, this would be a

difference without a distinction.

D. Court Properly Applied State Law in

Interpreting Hilchkanum Deed to

Railway.

Both courts carefully applied the relevant state law in

determining the nature of the transfer of the strip of land from

the Hilchkanums to the Railway. In doing so, neither the

Ninth Circuit nor the district court created federal rules in

reaching their conclusions. Furthermore, each court had

jurisdiction to render a decision regarding the nature of the

interest conveyed since the federal question involved was

integral to the primary lawsuit. Before deciding whether 16

U.S.C. § 1247(d) prevented the interest granted by the deed

from being extinguished, the courts needed to determine what

interest was granted.° In ruling on the issue, the courts were

exercising their direct jurisdiction, not their pendent

jurisdiction as alleged by Petitioner. Petition at y 2

In rendering its decision, the Ninth Circuit followed

the rules laid out in Brown v. State, 130 Wn.2d 430, 924

P.2d 908 (1996), and other state court decisions interpreting

deeds to railroad companies. Brown is the latest

pronouncement of the Washington Supreme Court on the

subject. The Ninth Circuit reviewed and discussed every case

cited by Petitioners, including an extensive treatment of

Brown. Compare Petition at 20 with Petition App. at 15-30.

The Ninth Circuit and the district court both applied the rule

enunciated in Brown that a deed by deed analysis be

undertaken considering the words within the deed as well as

the surrounding circumstances and the subsequent conduct of

° Petitioners also reinforced the jurisdiction of the federal courts

regarding the interpretation of the deed by raising the issue of the

application of Section 2288 and, thus, intertwining a federal issue

in the determination of the nature of Hilchkanum’s grant.

10

the parties. Brown 130 Wn.2d at 440. Petitioners offer

opinions by “experts” to assail the court’s application of the

state law. Petition at 8-10. However, these opinions are

merely the conclusions of individuals developed by applying

their interpretation of the relevant law to the undisputed facts.

Since applying law to undisputed facts is solely the role of

courts, these opinions cannot call the Ninth Circuit’s and the

district court’s well-reasoned decisions into question.

Petitioner also raises the issue of Hilchkanum’s

illiteracy, but that issue was addressed by the Ninth Circuit.

Petition App. at 26-27 (note 13). The Court assumed that

Hilchkanum received similar assistance in executing the deed

as he had in navigating the Homestead claim process. Id. ’

Any inference to the contrary would not be reasonable.

E. No Departure From the Usual

Course of Judicial Proceedings.

As the foregoing indicates, the decisions of the Ninth

Circuit and the district court carefully applied the relevant law

to the facts contained in the record. The decision in no way

conflicts directly or indirectly with prior decisions or statutory

provisions of either federal or state law. In addition,

Petitioners do not place in question the courts’ decisions to

issue a summary judgement. Petitioners fail to point to any

genuine issues of material fact or any reasonable inferences

that should have been drawn in their favor that would change

the outcome. The material facts, e.g., the content of the

various deeds, considered by the courts are not in dispute and

’ Petitioner refers to RCW 64.20.020 which required court

approval of deeds from Native Americans. Petition at 19.

However, this statue was not adopted until 1890 and, therefore, is

irrelevant to this matter.

11

other historical evidence raised by Petitioners is

uncontroverted because it is not probative. Therefore, there

is no reason this Court should disturb the Ninth Circuit’s

decision in this matter and Petitioner’s application for a Writ

of Certiorari should be denied.

2. OTHER ISSUES RAISED ARE IRRELEVANT TO

QUESTION PRESENTED AND ARE SIMPLY

WITHOUT MERIT.

A. Not Appropriate to Examine Other

Deeds.

Petitioners suggest that this matter be remanded back

to a trial court so that “all Native American-grantor, railroad-

grantee deeds of the late 1800’s, including Hilchkanum’s

deed” can be examined. Petition at 18. Obviously, such

review would be unnecessary as well as incomplete. If other

deeds are to be considered in determining the intent of the

parties to the Hilchkanum deed, all deeds - whether by Native

Americans or by grantors of other ethnicity - should be

included in the review in order to present the court with a

comprehensive picture of the surrounding circumstances.

However, such a survey is unnecessary. Review of the

wording of the deed to the Railway and other deeds granted

by the Hilchkanums as well as deeds interpreted in prior

reported decisions is sufficient to determine the intent of the

parties to the deed at issue.

12

B. The District Court did not Have

Jurisdiction to Consider the Spur

Line Issue or Any Other Challenge

to the STB Decision.

As the Ninth Circuit found, Petitioners’ “spur line”

argument and all other allegation of irregularities in the STB

proceedings boil down to a challenge to the legality of the

STB’s decision to authorize railbanking of the subject

property. See Grantwood Village v. Missouri Pacific R.R.

Co., 95 F.3d 654, 657 (8 Cir. 1996)(challenge to transfer of

property pursuant to the Trails Act is collateral attack on

[STB] ruling). Pursuant to 28 U.S.C. §§ 2321(a) and 2342(5)

(Hobbs Act), the federal court of appeals has exclusive

jurisdiction over challenges to STB decisions. Id. See also,

Dave v. Rails-to-Trails Conservancy, 79 F.3d 940, 942 (9"

Cir. 1996)(practical effect of a taking claim is to seek review

of the [STB’s] order); Glosemeyer v. Missouri-Kansas-Texas

R.R., 879 F.2d 316, 320 (8" Cir. 1989); and Lousiana-

Pacific Corp. v. Texas Dept. of Transp., 43 F.Supp.2d 708,

711 (E.D.Tex. 1999).

A challenger of an STB order must file a petition for

review in the federal court of appeals within 60 days

following entry of a final STB order. 28 U.S.C.A. § 2344.

Once the statutory 60-day period for seeking review of a final

agency order has passed, the agency order is no longer

subject to judicial review. Friends of the Atglen-Susquehanna

Trail, Inc. v. STB, 252 F.3d 246 (3d Cir. 2001). The 60-day

time limit is jurisdictional, and cannot be judicially altered or

expanded. California Ass’n of the Physically Handicapped,

Inc. v. FCC, 833 F.2d 1333 (9th Cir. 1987); Texas v. US,

749 F.2d 1144 (Sth Cir. 1985), reh. denied 756 F.2d 882,

cert. denied 105 S.Ct. 3513, 472 U.S. 1032, 87 L.Ed.2d 642;

Chem-Haulers, Inc. v. U.S., 536 F.2d 610 (Sth Cir. 1976).

13

Petitioners did not challenge the STB’s decision in this

matter. As a result the decision became res judicata for the

_ purposes of these proceedings 60 days after it was issued and

proper notice given.* Petitioners’ opportunity to challenge

subject matter jurisdiction has long since passed.

c. Ninth Circuit Properly Refused to

Consider Ordinances Cited by

Petitioners.

As the Ninth Circuit pointed out, Petitioners failed to

amend their Answer or Counterclaims in order to assert a

claim that any deprivations of their rights were the result of

a County custom or practice. Petition App. at 35-36.

Therefore, any arguments that the Ninth Circuit’s dismissal of

Petitioner’s § 1983 claims was improper are unsupported by

the record.’

CONCLUSION

The Ninth Circuit and the District Court did not create

law in deciding the issues before them. They both applied the

correct, existing rules of law to the relevant, undisputed facts.

Their conclusions derived therefrom do not constitute a

departure from the accepted and usual course of judicial

proceedings. Petitioners offer no credible basis for reviewing

* Petitioners claim they should have been given actual notice of the

STB proceedings, but offer no basis for that claim. Petition at 11.

* Also, Petitioners’ allegation that the County based its petition for

an injunction on false statements would not be borne out by a

review of the record before the district court. See Petition at 10.

id

the Ninth Circuit’s decision and, therefore, their Petition for

Writ of Certiorari should be denied.

Respectfully Submitted,

NORM MALENG

King County Prosecuting Attorney

SCOTT D. JOHNSON

Counsel of Record

Senior Deputy Prosecuting Attorney

Attorneys for Respondent

15