rarely do i have to raise any podiums in the morning your honor may i please the court my name is david lend a hand i'm representing the city of some hamish washington this case turns on the faithful application of this court's familiar test for grant the county must show a likelihood of success on the merits and the key question here is to identify the merits of what success in proving what port isn't this why he's in this case at this point now that the  that the remedy ordered is to remove or correct whatever deficiencies you're claiming to be but at this point given that construction is complete how how will you get any relief from the ruling on the preliminary injunction well at this point there's not really no dispute that the only thing preventing the city from requiring the stop signs to be relocated and restored to their original location is the court's preliminary injunction order the order continues beyond just the construction to say the city may not take any action to relocate the sign i'm looking at the the scope of the district court's injunction preventing the city from taking any additional actions then peter delay when there's nothing to impede or delay now that it's done that what's left is correction which seems the meat to be the merits well so you need to read all the way to the end of that paragraph to the district court's injunction where it says not just in peter delay construction but also to require relocation of the stop sign some kind of that voice and also the merits in other words i know in this mighty dispute which i'm so thrilled has made it to our court whether the stop sign should be turned this way or that might be the you both have each side his arguments about that that will be the ultimate issue on the merits what had been the status quo by by allowing the county to switch the sign right but at this point it's simply holding everything where things presently are correct that's true where they presently are today the stop signs have been relocated per well then that's a done deal it's done and then number two the sea shall not take any additional actions than peter did laking counties construction including attempts to require stop signs oriented towards trail users finishing th that you were referencing it's done but the stop signs have been moved but the court says we can't take any action to relocate them in right now it's only that injunction that's preventing us from bringing in a local administrative code enforcement action because that is in violation of our city's code and our city's engine nearing standard so it's only that injunction that's keeping us from bringing in a force now how is it different from the merits now if you when the stop signs are going to be reoriented and that's the relief that you're ultimately seeking correct and we are asking this court to recognize that as we presented it you know in the pleadings below there is a very serious safety issue at this intersection right  concerns tipped their way you see it tips your way and i mean this forgive me i'm sure this is unfair but it seems like an awful lot of time energy expense been exercised here and what is ultimately a single dispute that one would think some third party has expertise on safety could have resolved  if the two parties had agreed to let the person resolve that it was any attempt made to do that well there were two competing expert opinions as you pointed out and there was a mediation that occurred that mediation didn't go anywhere anybody talk about a four way hard for us to get our arms around exactly why we're focusing on the relocation of stop sign is not an issue that makes is to very often and for an interim period this is my next question what's left to this case i mean what is your what issues need to be tried well so to answer both phases of your question your honor with respect to how this why this case is here that's a good question we thought this was a matter for local resolution and it was the county who decided to file a federal court case and bring a preliminary injunction motion and ask if at all district judge to decide which way the stop sign should go we don't think that was appropriate to begin with that's there's no federal subject matter jurisdiction there and we've raised that issue below but in the meantime we're left with having to defend have the stop signs reoriented while to restore the original status quo the status quo that had existed for more than ten years without a single reported accident at this intersection and so in order wasn't a paved trail there at the time so i'm not sure the history very very well to the situation we have now but that there won't be a paved trail completed paved trail for the entire segment for several years because there's still another unpaved segment right next to it that won't that's just now in the very preliminary shoreline permitting phase so it's going to be years before there's actually a paved trail that might result in much higher volumes of use and the city has always said we're very willing to reconsider the traffic engineering analysis when those volumes start to materialize but in the forseeable future that won't happen so what is the love to be tried the safety issues what's left to be tried is what they did we think the district court obviously there is a dispute here about the you know a a competing analysis of vacate the injunction and allow the city to reverse the stop signs pending the final determination on the merits of what's the timeline for the final determination music action proceeded in district court in the meantime it has been  basically on hold while this preliminary injunction appeal is pending so nothing is actually happen the city does have a pending motion to dismiss for lack of subject matter jurisdiction and then that's something we'd have to entertain although as i looked at your brief it seems it's tied to your effort to dismiss i for one nine hundred eighty three counter something so although there was an objection stated in your opening brief it seems to me that you're not pressing an argument here that we currently lack federal jurisdiction that something that will come back to the district court later correct originally i'm sorry forgive me there was something that was not addressed in neither party's briefs but i thought maybe you would and your adversary would comment on it which goes to this question of whether the city even has authority to regulate the cabbie's construction private use and this is not a per private use by the county it's it's a public use and then the only other section that might be involved  section sixteen point fifteen point zero five zero which goes to the question of clearing and grading permits but again seems to be limited to two ways that are not involved here so i'm wondering whether if the counties uses a public use whether the city has any regulation that requires a city's position that anytime you're doing work in the city right of way there are some narrow exceptions for public utilities that the standards are slightly different for there are certain exemptions that might apply there but the county is not doing utility work here the count wall hoping that maybe someday the railroad would come back the in the meantime allowing them to be made into very nice trails for public use  i'm not sure that they're acting like a private developer but so your honor the the this statute the federal statute that allows can rail banking and conversion of these former railroad corridors into power and to recreational trails it doesn't require that a public entity be the trail sponsor any private entity can also be a trail sponsor it's simply a question of that sponsors ability to be financially responsible for the trail and to preserve it for future railroad reactivation if necessary so it's not necessarily a public function it's just happens to be a public entity that is doing it in this case well that's why if you would maybe take a look at those regs because they do seem to be limited to private use these are your regs and i could be totally wrong  i've had relatively few cases involving those regulations correct me if you want to save the rest of your time yes place thank may please the court david hackett senior deputy prosecutor representing king county in this matter after the city issued a stop work order king county move for and obtain the preliminary injunction construction was completed the trail is open right now you can ride segment a you can walk segment and you can push a baby cart you could do whatever you want as a result because the injunction was limited to preventing the city from impeding or impairing king count construction of that trail this issue is boot it needs to be reminded what out this is just a horse that is a used to be all about stop sign so the stop signs could be moved yes does that mean it's no it means that that that's what's to be determined by the district court on the merits and as we point out in our briefing there are centrally three issues that deal with the city's regulatory authority the city wants to take itself as the default regulator that if the federal government steps out and if the washington utilities commission steps out that all the sudden hey we're still here but the problem was they were never here and under the trails act law remains in the status quo during rel banking so well there are a whole set of issues there we'd get to but i'm still i'm stuck on the mootness question now the city's position is that there is something that can be done to afford relief in the meantime that is moving the stop signs is that not factual true that is factually true but it is not related to the preliminary injunction and is not is not the primary injunction that keeps them from issuing an order to move the stop signs or to even go out and do it themselves i suspect they got their own road crew that could move the stop signs but for the injunction the preliminary injunction says only that king county is authorized to resume construction of south sigman a including pavement and construction at the intersections and then by stipulation of the parties this city shall not take any additional actions to unpaid impede or delay king county's construction of the intersections including any attempts to orient the stop signs toward trail users i mean it's see if i understand that is it your position that they can't move the stop signs but only because of a voluntary agreement they entered because that was not part of the court's order it is our position that the preliminary injunction does not preclude them from doing that however on the merits the default court so if that's the case there you're telling the city you can move the stop signs and will still fight it out in court ok it sounds like it's got to be moot but i'm i don't really hear hear you saying that it's ok for the city to move the stop signs county's position the city can either order the relocation of the stop signs or relocate them itself right now while the primary injunctions in place i believe that the a yes or no question so get to a yes or a no yes i will get definitely yes or no i believe that there is nothing about the policeman any injunction that prevents the city from doing that yes the city could do that however we would of course go to the district court and request another injunction if they indeed took action on that my bigger point out mootness which is an article three question is that under commish you have to look at the four corners of the preliminary injunction order and that is addressed rightly or wrongly perhaps without sufficient foresight on how how far the city would take this toward efforts to impede or delay construction construction is finished the trail is open and at this point the question of where the stop signs ultimately will be placed is the merits question that  is best decided by the district court with a full record before it i don't understand how you got to your yes answer to judge clinton's question healthy thirty third street including any attempts to orient the stop signs toward trail users you're saying that the way you're reading the word including to be limited to steps taken during the period of construction is that while you get to your yes answer yes i think that comma leads to the yes answer because they can impede or delay king county's construction including any attempts to orient the stop signs toward trailer city indicates it's all about public safety in terms of like which way the stop signs are to be oriented that i think it is the county position as well that it is its primary interest in this case is about safety yes then it just seems to me stepping back for a moment at the interests of the county and the city should be aligned there's just this beaut over which way he creates the maximum safety conditions that i write and characterizing it that  way i believe i believe that that is the nut of the dispute between the two parties but it is the county that's responsible for constructing the trail in the county that's responsible lives in the end but the larger interests are essential ia lying so it just seems to be a lot of litigation argument when your interests are really aligned there's some reference as to an attempt to mediate this case that council reference you tell me why didn't work what was discussed but was this early on during the litigation that the parties attempted to mediate it yes very early on and i should point out that this matter r d went through a hearing examiner once and the city lost the county has engineering authorities and there's always one party wins and the other one loses but ultimately when it comes to the merits determination it may flip the other way that that is very true but in this case the issue has been addressed the city continues to lose and continues to fight the issue it's the city that filed this appeal it's the city that issued the stop work order the county simply wants its trail to go forward and the question of whether that trail can go forward then if you have an inability to come to a mediated settlement grant you this is a federal case over a stop sign and i can understand how none of us want to be here arguing a federal case over a stop sign but nonetheless the ultimate answer on the merits will be  stop it sometimes i think there are a stop sign there is potentially a way i don't know if the party's aware of this but the circuit has highly skilled mediators at the apollo level here in the court and you don't have to make a commitment to express your desire to participate at this point but if the parties confer after this hearing is over and if there is an interest by both sides to take advantage of that mediation program  then within ten days or so please let us know while certainly do that i have participated in that program before and found it to be helpful in this case it will be our position as it is before this court that the city has no authority to regulate these intersections because about the status of matter which you have any objection to judge clifton suggestion that there be stop signs him both directions that would be an invalid traffic control m under both ash though which of the standards that apply the to the trail and under state law you're saying of the parties agreed to it they can agree to it parties could not agree to that because under state law that's an invalid way to control but extreme traffic but that's not quite my question are you saying that if the rule all the relevant governing authorities in a community the city the county both agree that way whatever the requirements are under the law and will have a four way stop sign they can't do that i have myself thought that perhaps that could be an elegant solution but ultimately an acceptable solution is dictated by asheville by engineering standards by engineering opinion  importantly by the r c w s which do not allow stop signs to control right of way for pedestrians in our state people want to do it they can do it i understand that the city and county have the same goals but they also have a set of constituents that aren't identical and different people see things in different ways so i will join my colleagues in encouraging a resolution but it's not going to come and if we don't decide this case moot i would like to raise one question on the merits which is that it seems to me the promise of the county's argument and of the district court's  conclusion is that there's a train here although we know there's not a train here the federal preemption which would which would limit the city's police powers a it's talking about a train and the surface transportation board has indicated it's doesn't think the federal law speaks to trails beyond the trail act which provides for the rail banking i'm puzzled as to why it is that the county takes the position that federal law somehow pre amps the city's regulatory authority well i think it begs the question of why would the city have regulatory authority we're not we're not talking about the whole corridor with this case we're talking about intersections and when the train was there that ability to regulate intersections did not lie with the city at all because there was a train there exactly but there's not a train there anymore well congress spoke very clearly in the trails act and i don't think so and the surface transportation board doesn't seem to think so i don't believe that any of the cases that are cited by the city from the surface transportation board deal with regulation of intersections by cities as a default nor do i see is that this is a case cited to is first in the city's brief from the surface transportation board a trail use must comply with state and local land use plans owning ordinances and public health and safety legislation but it seems to speak to how regulations apply there were trained there than federal law clearly preempt what the local authorities can do but there's not a train there i don't believe it speaks to intersections which are special even in railroad corridors but the language well rails are but let me let me look at your brief you cite the act and it says defining the jurisdiction of the surface transportation board and this is the part that isn't a talents in your brief except as otherwise provided in this part the remedies pride of this part with respect to regulation of rail transportation are exclusive in preempt and you set that up the sentence leading into it talks about little regular city had very little regulatory authority over federal rail quarters but what the statute says is rail transportation and we're not talking about rail transportation anymore so i'm baffled as to why it is your argument is assumes that there's a train there i mean it seems to me that that the federal preemption is tied to the to the railroad transportation not to land that used to be and maybe in the future will again be a trade track but right now is something other than that our argument is tied i think exclusively to the language of the trails act which says that such interim use trail use shall not be treated for purposes of any of law or rule of law as an abandonment of the use of right away for railroad purposes fine it's no abandonment of the railroad decides to put a train there in the future it can but i don't see how that language speaks to what the regulatory authority of the local municipality or county or anybody else is there may be a question as a judge or a cough is raised about whether the in a civil code actually gives the city that authority but your argument is premised on federal preemption and i don't simply don't understand how how the federal government has an interest in preempting the use of this property not for rail transportation but for people on bicycles and strollers and walking i think the federal government has an interest in doing that under the precedence of this circuit in the us supreme court because maintaining the integrity of that core door is is part and parcel as well as allowing interim trail use what we're talking about here has absolutely no impact on the ability of all road in the future to reclaim the property there's no abandonment issue here we're talking about what's being done in the mean time and i simply do not see the federal statute that you're pointing to as speaking to how it gets used in the meantime as long as it's not treated as  abandonment we would respectfully disagree with that reading and that's that's the type of thing that we would like to fully vet before the district court in this case consistent with the friends of some mannish which was a prior district court decision on this that the city did not appeal but to loop back around to the problem of the city's own code in order to regulate right of way you have to own a right of way in the deeds in this case did not establish a right of way it is important to note that the city did not argue this below so this court is reviewing city did not argue that below it is impossible or at least i think ill advised to reverse the district court for abuse of discretion based on an argument that the city failed to make below so whether whether you look at this cases loot which we believe it is or whether you look at this case on the merits the district court decided the question on an issue that the city failed to brief or argue below and that by itself is enough for this court to determine that there was no abuse of discretion without even getting to possibly more problematic preemption issues that have yet to be fully vetted by the district court so for these reasons we would ask the court to either dismiss the case is moot or to affirm issuance of the preliminary injunction on the merits based on the argument that the city failed to dispute below thank you is titled purpose permit required and the language there is actually it's actually two prong language that says it shall be unlawful for anyone and i'm going to skip the first prong of the second one and shall be unlawful for anyone to use any public right for anyone to make private use of any public right of way without a right of way use permit issued by the city or to use any public right of way without complying with all provisions of a permit issued by the city so the course question there is whether the second were use of the term use was picks up the private language from the first directed in both clauses private use on the other hand your argument would be the word private only appears in the first close on the second so that's the issue i was raising but i think that's an a minimum this if you look at the two clauses is that you need to have a right of way permit and that you need to comply with a make sense to limit the first one to private and say that the second applies no matter what or at least that's the argument why profit should be rendered to clauses well issue wasn't really discussed below so we didn't know that we didn't include the entire so much code in here but suffice it to say there are many provisions of the same as code including the right away provisions in the current rating private prisons that apply to all persons not just at the time the easements were entered into and i understand it was one nine hundred seventy two in one thousand nine hundred two was a train line operating there or had the train ceased operation some time before the i'm not sure about the seventy's in the ninety's it had ceased operations i was trying to factually try to figure out how we got to this point and yeah i don't know the exact date of when it was discontinued by i believe by the ninety's when i go back to the point you were trying to make so the point i was going to make was two things one to the extent that county now argues that they're that the city actually has no right of way at all over these two streets and it's only a limited railroad crossing easement there's no right of way well king county thought there was right of way because it was king county at the time these easements were acquired it was unincorporated king county there was no city of so mannish well there's a letter in at page one hundred three of the excerpts of record volume two which is a a memo from king county's a real property division the real property people at king county writing to the king county executive saying please sign this this is their language the public right of way crossing burlington northern zero track will be two hundred sixty ave se clearly king county thought it was a right of way when it acquired this this crossing and secondly to say that easements do not somehow give the county exclusive use or possession of this court or including at two hundred six then a thirty third south east or south east thirty third well that's just belied by the language in the easement themselves which talk about an easement for public road purposes an easement for construction and maintenance of a street and all of all those easement to do reserved to the railroad some ability to do other things in fact pretty broad ability it says that that ability is limited so as not to interfere with the use of the premises for street purposes so it's not that's not the county has unfettered control over these intersections human given your  adversary statement which is presumably binding on him made here in open court nothing prevents you from initiating now tempt to turn the stop signs the other the injunction the only thing that you were forbidden to do was interfere with them putting up the road in the way they wanted including a stop sign they've done that now so the injunction by its terms they say is they interpret it no longer apply to future action regarding the stop signs if you go and try to change it they're going to go back into court but that will be an issue for the district court  and not an issue for us so i'm just trying to pin you know you agree that if that is the situation that this case is moot well if this court agrees that the injunction reads the way the county is now saying it a jail for zen we have agreed the case is moot all right thank you thank you very much counsel the matter submitted for decision