October 21, 2015
from United States District Court for the District of South
Dakota - Rapid City.
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,
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.
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.
LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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"
), 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" ).
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.
BN's easement was initially granted under the General
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