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Trevarton v. State of South Dakota

United States Court of Appeals, Eighth Circuit

March 25, 2016

Dorothy Ellen Trevarton, et al., Plaintiffs - Appellants
v.
State of South Dakota; South Dakota Game, Fish, and Parks, Defendants - Appellees, Rails to Trails Conservancy, Amicus on Behalf of Appellees

         Submitted October 21, 2015

Page 1082

          Appeal from United States District Court for the District of South Dakota - Rapid City.

         For Dorothy Ellen Trevarton, Wesley Murdock, Jennifer Murdock, Bruce Murdock, Linda Murdock, husband and wife, William A. Miller, Lisa Miller, husband and wife, Plaintiffs - Appellants: Sarah Elizabeth Baron Houy, Eric J. Pickar, Terry G. Westergaard, Attorney, BANGS & MCCULLEN, Rapid City, SD; Franklin J. Falen, Brandon Lee Jensen, BUDD & FALEN, Cheyenne, WY.

         For State of South Dakota, South Dakota Game, Fish, and Parks, Defendants - Appellees: Steven R. Blair, Assistant Attorney General, Richard Marshall Williams, Assistant Attorney General, ATTORNEY GENERAL'S OFFICE, Pierre, SD.

         For Rails to Trails Conservancy, Amicus on Behalf of Appellee(s): Mari R.L. Davidson, Justin J. Marks, Kevin M. Sheys, NOSSAMAN LLP, Washington, DC; Andrea Carol Ferster, Washington, DC; Christopher Vieira, NOSSAMAN LLP, San Francisco, CA.

         Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

          OPINION

Page 1083

          LOKEN, Circuit Judge.

         Plaintiffs are ranchers in Fall River County, South Dakota, who own properties underlying and surrounding a railway right-of-way easement granted by the United States to Grand Island and Wyoming Central Railroad Company in 1897. Burlington Northern Railroad Company (" BN" ) subsequently acquired the easement but ceased railroad operations on the line in 1986. In 1987, BN applied to the Interstate Commerce Commission, now the Surface Transportation Board (" STB" ),[1] for an exemption permitting expeditious abandonment of the line. See 49 U.S.C. § 10903 (requirements to abandon a rail line); 49 C.F.R. § 1152.50. The STB granted but then revoked an exemption prior to completion of the abandonment and instead authorized BN to enter into an " interim trail use/rail banking agreement" in accordance with the National Trails System Act (" Trails Act" ), 16 U.S.C. § 1247(d), as implemented by the STB in 49 C.F.R. § 1152.29. In December 1989, BN quit-claimed its interest in the right-of-way to the State of South Dakota, through its Department of Game, Fish & Parks, for interim trail use. In 1998, South Dakota converted the right-of-way to a non-motorized public recreational trail, part of the 109-mile George S. Mickelson Trail from Edgemont to Deadwood, South Dakota (" the Trail" ).

         In April 2014, Plaintiffs commenced two separate actions in state court against the State and the Department of Game, Fish, and Parks, seeking a declaration quieting title to the right-of-way in Plaintiffs because the easement terminated by operation of law when BN ceased railroad operations. Defendants removed to federal court and moved to dismiss. Plaintiffs filed Amended Complaints seeking declarations (i) that the STB erred in ruling that the right-of-way was not abandoned before BN sold its interest to Defendants; and alternatively (ii) " that Defendants stand in the shoes of their railroad predecessors-in-interest concerning easement rights." Defendants filed renewed motions to dismiss for lack of jurisdiction and for failure to state a claim. See Fed.R.Civ.P. 12(b)(1), 12(b)(6). The district court consolidated the two cases, concluded that both of Plaintiffs' claims fall within the exclusive jurisdiction of the STB, and granted Rule 12(b)(1) dismissals for lack of subject matter jurisdiction. Plaintiffs appeal, challenging only the dismissal of their alternative claims regarding the scope of Defendants' easement. Concluding that these claims are not within the STB's exclusive jurisdiction, but that the Amended Complaints failed to state a claim upon which relief can be granted, we modify this part of the district court's judgment to be a Rule 12(b)(6) dismissal and otherwise affirm.

         1. BN's easement was initially granted under the General Railroad Right-of-Way

Page 1084

Act of 1875 (" 1875 Act" ), now codified at 43 U.S.C. § 934. See generally Marvin M. Brandt Revocable Trust v. United States,134 S.Ct. 1257, 188 L.Ed.2d 272 (2014). Plaintiffs allege that prior to 1998, railroads that held this easement over the years used the right-of-way only for railroad operations, while Plaintiffs " continuously used the railroad easement for purposes of grazing cattle, hauling cattle, feed, and water, and traveling from one portion of their property to the other." Now, they allege, South Dakota allows countless Trail users to trespass on Plaintiffs' lands, harassing cattle and littering. South Dakota also forbids Plaintiffs from ...


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