# Opposition Brief — Rasmussen v. King County

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1332%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1057

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1332%3A3. Public record. Not legal advice.