good morning your honor i mean please the court i'm steve wald i'm representing the plaintiffs in this appeal we have a lot of issues to cover and i'm sure we'll get right into them but i do want to just say that this dispute in hornish is about landowners in lakes on the shores of lake sammamish or very concerned that king county will expand their trail and in some cases at least technically go right into their living rooms according to where the footprint of these homes are in relation to the footprint of the court or so let's just say somewhere in the record yes it is about the footprint in the home and  yes mr morales affidavit was submitted below your honor and i can give you a cite that's the one with the rock in the house where there's a separate deed that was given right yes your honor you're really talking more about the larger group rather than affidavits from another let me ask you this just since you brought this up as i understand it in that case there was a discussion with the railroad and a specific he was given to him to permit him to over one hundred years and so to the what is then the theory in the legal description it referred to an edge and it would correspond to the hundred foot claim by the county right there are certainly in deed references to that with but i think that it's not relevant your honor because it's just another evidence of why the event was right no i did well it may be but i think it's very damaging evidence i think it i think it's weak evidence i i know you're going to talk about grable and i'll ask is an alternative whether janet versus u s postal service provides an alternative basis for our jurisdiction in this case your honor i don't  think it provides an alternative basis i think the two bases are going to be either federal law creates the cause of action or there's a substantial federal interest pursuant to grable i think i think janet has falls into that framework and here we certainly have no cause of action that were created by federal law the trails act is not create a federal right of action i'm interested in why you say that here you have a federal act that makes it so that when the railroad does what might result in an abandonment or trigger a reversionary interest under state law that no longer happens because of the impact of the trails act i'm a simple banker's how can that not be a federal action and if somebody disagrees with what happens well and frankly your honor that's why we didn't bring it up earlier because that was the mistake we made is that we thought if if if we're talking about the trails actual we're rails to trails lawyers that's for bread and butter but this is going to be in federal court in the case turns on federal law to some extent it should be in federal court we think that's the mistake we made and we think that's the mistake king county is making now that to answer your question your honor the reason is because i may the best way to look at this is if you strip away the trails act we could still have the same exact dispute follow whatever it was going to do but this whole thing is about the result of the trail that you're actually would never have been brot right but for the trail that well maybe is a matter of cause in fact in terms of the giving king county  the thought that it could do certain things with the land but the fact is all the trails act does is it authorizes trail use now and potential reactivation in the future by doing so what it what it does is it prove then it's the land owners from having their reversionary rights be triggered that's why the federal circuit talks about the rights being blocke for stalled but the reason that it's a state law issue your honor is because if you look at lawson washington supreme court case what it says is that a change in rails to trails is beyond the scope that's essentially a contractual principle that's not a common law abandonment principle it's beyond the scope of the easement and that triggers an extinguishment of the underlying easement that is pure state law and so regardless of what i'm sorry or regardless of whether the reversionary interest is blocked or not that we're not alleging we have a problem with the reversionary interest being blocked that's that's all well and good and fine that's but that takings case against the federal government but the state law issue is what was the width of the prescriptive easement and does king county have a right to expand that and we get the case for later incident uses so really this is just about what in hornish what is the width of the corridor and that's a state law issue trails that doesn't do anything about that the trails like certainly preserves this corridor and it does so well it's going to be preserved now and it can be used as a trail and no one is saying there shouldn't be a trail if you're if you had your wishes fulfilled at this point what would you want to happen what would you want this court to do well if since we believe the federal court has no jurisdiction that's just as officers of the court we think that's what know we should just say hey what the district court did below is of no account because it never had subject matter jurisdiction in the first place good bye see you in state court yes right yes right so so you're saying that the scope of king county is right under the quickly indeed don't turn on whether the trails act creates supplementary places preexisting easements it in my mind it doesn't although all the extinguished because trail use is allowed its trail use that extinguishes the easement and that's what federal law force on the land owners that's why we have takings claims and that sort of thing but in terms of the qui claim deed you know the railroad can only give what it had and all it had in our view was a prescriptive easement that's much smaller in width than what king county wants to wants to say and we did evidence the affidavit of mr morale and so we think if the court should believe it has subject matter jurisdiction it at a minimum should go back to district court because there's a genuine issue of material fact i think i get your point about the prescripti easement because the railroad had what it had county takes the position that it by virtue of what it has done has acquired its own prescriptive easement what i have trouble with on that though is they claim that they have paid any taxes but of course it's the taxing authority so how can it be taxes to itself what's the what's the answer to that two things several things your honor as to the  question in mr morales affidavit he says he paid the taxes and he offers documentary evidence in our motion to supplement the record we offered affidavits from the neighbors cases a case where many plaintiffs to this question how does he know that he paid taxes on the portion of the whatever it is easement be whatever how does he know that the old records showed the actual documentary evidence shows the square footage that you can sort of reverse engineer and they those affidavits from neighbors explain how that's done and so you can so it shows like it'll say i don't have the exact number but it shows a history of paying seventy one hundred square feet of taxes which would include the land into the railroad right of way and now that number has been manipulated somehow in the system to where showing forty six hundred or whatever it is and so let's make up for a minute one of the things that troubles me about this case is nobody put in the deeds showing the chain of title nobody put any tax records before hand and the district court said hey how can we find out whether it meets about the script but again here there's no evidence that you really have the title that you say you do nobody did anything now you've got the issue with taxes but you didn't present this evidence how can we how can we credit if you will information that was not before the district court well first a few things there your honor number one i thought in hornish i'll check the records and as i'm on break i thought we did present chain of title but also in mr morales affidavit he does say he paid taxes that was before the district court as for the neighbor's affidavit that is very true that the affidavits were not in front of this court however i think just as a matter of justice we would ask the court to accept that to supplement the record the matter of justice we should introduce evidence that should have been presented to the district court it wasn't well i understand your point your honor but those those affidavits are now now there and it's on a crucial point it has to do with the veracity of evidence that king county presented in any event it was it was contra indicated by mr morales affidavit which is in this case in terms of the taxes and also on that statute your honor when we're talking about open or natori is possession which means county would have to show  yes for the twelve to twenty feet they can show that probably but for the rest of it they can't how can they they'd have to go into the living room i don't think the trail is in anyone's living room yet you take the position that the  much of your case relies on the what i call them as no line rule where he goes to the middle of the track and runs back is that is that much of the heart of your client's collective claims about what they own certainly a major issue of the centerline present and i know you're very much aware that under washington law that if the documents by which your clients are in their property is in a meets and bounds description that refers to the adjacent property that that rule does not apply yes and yet if i understand it correctly you did not provide evidence of the nature of the legal description if you will of your client's chain of title if that's right how can you be the beneficiary of this presumption of land back from them as no line on the east will respect you but let's just start with the ownership deeds that were presented that's where the center line presumption kick sand and what i mean by that is that if i have come to the court and i show th and which i think five of the six that's true and hornish don't have meets and bounds language they get the centerline presumption and if you tell me i need to go back and spend a bunch of money to get it change of title there's no purpose to the discussion about the davis there were multiple plaintiffs and when the court talks about the davis who did not provide their ownership to just the kind of circumstance you're talking about your honor the court said gave some language that has been misconstrued that says that's been taken to mean you have to get a chain of title that's not what the court was saying they were only making the point with those particular owners who didn't get the benefit of the centerline presumption that  they hadn't presented sufficient have let me ask you this will make it a hypothetical ok you've got six plaintiffs you said one clearly does it mean to about let's take the five let's just say hypothetically that every deed from which those five people got their title and of course in real estate that's the way it works you get the bundle of rights it gets conveyed conveyed and conveyed and conveyed let's say that every one of the predecessor deeds was a meets and boun description but your current deed is not what impact if any does that have on the availability of the presumption and the median line well it's an evidentiary presumption and it's a rule of practicality in some respects i would argue and so if there is another meets and bounds to let me start with this if you have a lot description which northlake for instance a washington case says you get the benefit of the senate and presumption they call the highway presumption  at that point in time the burden then shifts to the defendant to prove that there's something else out there that shows that they grant or reserve the theory and so it would then become incumbent on the  defendant in that case to go find those kinds of deeds and it's public record they know how to do a chain of title and if they come well we do but that's not the but that's not the issue of the issue is the presumption it's your burden and then i guess that's what i struggle with  your your case in part depends on showing that your clients are entitled to them as in the line presumption right yes it's very important to you now you you were told by the district court and i'm asking you that question if you have predecessor deeds that are based on meets and bounds that refer to the edge of an existing easement if that cuts off that right under washington laws then important for you to know and important to rebut that before the court can become important in the case but the way this is structured and this is true throughout the country is that i come in with my ownership deed and if i get the benefit of the presumption because it's a lot description and by the way the meets and bounds of it's a different rule different states but if what if it whatever state i get the benefit of the settling presumption that's just a matter of burden of proof your honor is that is a is a prior meets and bounds description important sure but that's not how the rules have been set up the rules have been set up that now the burdens on them i have met my burden well let's just say you're wrong i've only have i don't like that but if you're wrong hypothetically don't you have a big problem i try understand what you mean if if you do have to show a chain of title if that's the way you beat your burden and you haven't done it sure and you have a big problem short if the rule is we have to get a chain we haven't done it big problem ok all right yes probably lots good morning good morning your honor may please the court david hackett senior deputy prosecutor for king county appearing for king county in this matter through the real banking the trails act preserves railroad corridor or easements and supplements those with trail rights as a matter of federal law this case turns on how the trails act impacts those existing state easements that in this corridor have existed for about one hundred twenty five years defining that corridor and other  let's first address the issue that you're opposing counsel raise which is a we shouldn't be here in the first place the federal courts don't have subject matter jurisdiction all we're really talking about here is state real property law and we can just ignore the trails act what is your response to that i believe your honor recognized in your questions that they're essentially several ways you get to article three jurisdiction in this case first off the first amendment complaint has a single cause of action for declaratory judgment quote to declare the rights of the parties not simply the rights of the plaintiffs but the rights of the parties with respect to the railroad right of way at issue and it specifically asks for a declaratory judgment that king county quote only acquired a surface easement for a hiking and biking trail with a possible reactivation of a railroad by and through the trails act they explicitly ask for a federal court to this case declaratory judgment turns off on an interpretation of federal law the trails act provides an overlay for those state law causes of action i would i would submit that under rule of an a complaint could not even be filed without taking into account the impact of the trails act on those easements the trails act as part and parcel of the property rights that are held by the parties in person i sleep what plaintiffs asked this court to address in that sense i believe acquired it's what we call lawful the bundle of sticks bundle of rights had different bundles of rights and the trails act had an effect on what would have normally happened under state law but some of doing that created the prescriptive right so if the railroad acquired it for a road purposes that doesn't mean it has the right to do power lines or fly drones or whatever else it just has the right that it acquired so if it if the if the if you get from the trails act conveyor it which is you are basically a prescriptive right i've got to question number one how can you get yourself prescriptive right and secondly how can you convey to any third party something to do differently than what the prescriptive right did let's take the first part of this i would i would  perspective easement between myself and my neighbor might give me very limited rights with the railroad did in this case and what the record supports and the focus on the record of course is important in this case because it's completely one sided what the record supports is that the railroad established a prescriptive easement for a railroad easement not just any garden variety easement but the type of exclusive almost was a fee instrument that is recognized under washington law because that railroad sarcastically of anything that's consistent with the railroads purposes so essentially we know from the spokane case that portions of an easement were sold to build warehouses simply so the railroad could drive revenue that's how broad washington's incidental use doctrine is what you're saying is that under washington law that the fact that this was a prescriptive use meant that the original overcall of the second row hood acquired from first railroad  hstanding that he got it for railroad purposes and was only using it to run road tracks and incidental things related to that that under washington law intell dental uses can be brought  we're about that because that's important and second second thing then is there's an allegation and i believe it's in this case that the county to the degree that it didn't receive what you thought you got itself has  on the balance of the land and as you well know one of the requirements to get a prescriptive easement is that you pay the taxes yes this is real property taxes and i believe king county is the taxing authority right that  partially the case if i if i can back up the statute actually says that shell also during said time pay all taxes legally assessed so it's often short handed to say pay the taxes but it's actually pay all taxes legally a sa the no not assessed no problem yeah if you're exempt then then you meet that requirement in the statute but importantly the record also supports and this was not disputed below that king county pays actually pays out of  pocket surface water fees based on the property i'd like to just briefly talk about this morel declaration first off it's from one nine hundred seventy one so it's before the seven years when kin county did pay all taxes legally separate and surface water fees but secondly if you look very carefully at the morel legal description under the one nine hundred seventy one real estate statement it it actually says that it excludes the railroad court or less railroad court or so it's hard to say your paying taxes on the railroad court or when your legal description excludes the railroad court or and as was mentioned in the opening argument of course the morels recognized the railroads one hundred foot railroad court after that the the second deed where they were given the right to build a bigger house yet as a reference right actually two separate things the deed from the railroad where they got the outer twenty five feet of the hundred foot corridor which resulted in a fifty foot corridor and then the agreement by jean morel the current plaintiff himself recognizing the fifty foot corridor when he got a crossing right from the n s f that's that's better than evidence i would say that binds mr mr morale i don't know why this would be on the record but obviously is the moral case indicates they had a particular problem they dealt with the railroad and got reached a deal basically as they've been the dealings between any of the six current plaintiffs and the county to provide some kind of a deal that they needed with respect to their particular property or widening some prion protection and thing notion that they own part of that corridor our primary argument as to why we own part of the corridor is because we've got the deed from b n s f to to t l c to king county that described the corridor in great detail it described the portions like mirelle that have been previously narrowed and it described the general portions that are one hundred feet in some areas two hundred feet that deede established either in fee in the case of hill chucked in them which was addressed in the rasmussen case or in other places railroad easements which are are what we have for the majority of the plaintiffs in the in this case and those railroad easements are what the trails act preserved the railroad the trails act says that its national policy quote to preserve established railroad rights of way for future reactivation of rail service and quote to protect all transportation corridors now how does it do this the mechanism the trails act uses is crucial and the mechanism it uses is to preempt any law or rule of law and that would include cases like lawson that determined that trails use extinguishes an easement that is preempted it is a rule of law that is preempted by it by the trails act that mechanism results in the existing state law easement remaining in full force in effect there are important reasons for that number one we can use that as a trail we can build all the things that are pertinent to a trail like drainage like being able to maintain views and types of things that trail users like to see but perhaps more importantly it allows us to serve the core door for future reactivation of a railway if we are in the land the plaintiffs desire where all state law easements are extinguished and the trail can be twelve feet wide and they can do whatever they want to up to the border of the railroad be in s f that it would be very very difficult if not impossible to reactivate railroads under that situation it's incumbent indeed indeed under federal law on the trail of sponsor to maintain that co or so that it can be reactivated let me ask you this in connection with incidental uses and i remember the case of the second case where there was a right given to some electrical companies as i recall and that maybe one under the trail i don't believe they would have to be what the what the what the surface transportation does is it is it issues the need to which provides the trail right on top of the state easement right and then it is up to the trail sponsor to  maintain that trail and to maintain these been consistent with washington law so under washington law once king county or the port in that case owned a railroad easement they were free to  seek incidental uses of that road easement and i think one thing that gets importantly to the court's question is in every situation where king county is issued an s u p in this case or where the port issued various rights in the case for  case there is a clause in those contracts that says essentially if a railroad wishes to come back reactivation will occur in other words p s e's rights or sound transit's rights or for that matter king county's rights are subject to reactivation of that corridor for railroad purposes it's important that incidental uses be allowed because otherwise property is essentially put in a sealed glass bottle and not allowed for beneficial uses that may be good for maybe i misunderstood this but i thought that either in this case of the other case that at least a portion of the rights conveyed by quitclaim deed basically just said the railroad is getting rid of any interest that it has how then c railroad reactivate the railroad when it has no right in the underlying property of the fear otherwise this this this particular case is somewhat unique as i understand it from other national trails that cases and other national trails corridors because king county was not only named the interim trail sponsor by the s t b through the need to but king county also purchased the underlying property that's the case then does that mean that king county is the entity that can reactivate the railroad and not the original railroad we've already we've already faced a situation which is which is cited i believe in council's brief where a a small short line tried to reactivate a railroad up near wouldn't bill and that went in front of the s t b i think if that reactivation petition had been accepted certainly it's a federal court or in the s t v could have required king county to enter into appropriate negotiations to lease or sell or rent or whoever knows what to allow the property rights for that road right has that right of a quitclaim view course means that you give away whatever right you have in that described properties of the railroad quick claimed its interest to king county doesn't have anything left right so how could it then reactivate a railroad i think that would be a federal law process before the s t b and i think it's very possible king county could either be required to lease property back to the railroad or to sell property back to the railroad none of us secret and understood part of the deal i think all parties going into it knowing that the trails act were subject to the trails act just as the homeowners are and part of the trails act is that real core doors are preserved in federal jurisdiction for the possibility of reactivation and thus if a bonafide railroad comes forward and the s t b it determines that that is appropriate service that's that's a case by the way that is not a r yet anywhere in the country but i have no doubt that the s t b would have the authority to do that would it have to be the original road much as they for example that the three of us who all of lyondell when we were kids we decided we want to do the railroad so we contact the s t b and we say you know this is a beautiful place and we think there should be a road there would we have the right to ask that king county basically allow us to reestablish the railroad without payment of anything well you would you would have to  and in fact as a side note in a prior case related to this very corridor the homeowners tried to start up their own railroad to avoid the trail so this says as the ninth circuit has said is the long and tortured history of what is known as the redmond is a quote railroad and i am proud to be another chapter of that so for the reasons we stated in our in our briefing the mechanism of the trails act is clear it has that practical purpose of being able to go down to the county courthouse to look at the records to see who owns easement to see who owns the property rights when the reactivation occurs if your honour's have your railroad you know where to figure out who owns the corridor that's an important thing you know to go to the s t p one other quick question for you  of money has been awarded in that which is an obvious recognition that they have some rights that were taken was there any claim of that nature in this particular case not  yes there's a case pending in front of the federal court of claims called the barest matter which has been pending for a very long time property rights have been argued differently in front of the court of claims state law attorneys have not been there to argue state law doctrines certainly the owner of the property which is king county has not been involved in either haggart or bear as recently as your honor saw in the supplemental authority submitted by king county in haggart the federal government has started to make the argument that washington state law does not have the same type of centerline presumption that you have in other portions of the country in a thurston county case which i believe we submitted that that argument finally ordered the day just one final question i would like to say hypothetically that in the barrett case the court of claims concludes that each of the six plaintiffs in this case has suffered some degree of taking in awards them in the other case i think it's up to like a million five with interest at this point there were a million bucks doesn't that speak to their interest that they had an interest and if so how should that impact our or analysis i think what it speaks to is in paris the federal government didn't litigate the case very well what speaks of lawyers you never know as a county lawyer standing i guess i can say that but in this case what you do have is a record where plaintiffs have submitted absolutely no chain of title evidence rate roeder from our state supreme court tells us that if you fail to do that you have no center line presumption and then secondly all of their titles are cut off by the one thousand eight probate the probate deed involving middleton as well as middleton's acquiescence so they couldn't submit that chain of title so in this situation whatever proof they were able to submit to the federal court of claims is absent from this court and for that reason we'd ask you to affirm another question russian thank you very much f thank you so counsel you've got some vital time are you handling the other case too i forgot yes your honor ok i will look forward to seeing you again yeah absolutely it won't be long ok just to start change of title were in fact provided so where is that in the record that's in the amended complaint exhibits the amount of complaint it's trial docket number thirty one million thirty trial docket number thirty one dash one  provided a chain of title showing the deeds by which they acquired their property their way as i've gone through and ticked off every point but it looks to me like everyone was ok although i think part of that's important so i'm you're saying that that is that was presented i just thought i heard counsel say it wasn't presented in what way why are we hearing a different story i don't know but i just like that i also just want to say on summary judgment i'm sorry subject matter jurisdiction  one of the quotes that sticks out to me is the caterpillar quote that says even if both parties concede that the defense is the only question truly at issue that's not a basis for arising under federal jurisdiction so we see a lot of cases where plaintiffs of maybe in artfully pled their cause of action and there's five in particular easton california shock franchise tax nevada philips petroleum and each one of th the courts say look if you're really anticipating what actually is just a defense in this case the defense is that they have an easement that is still there and our response to that is no you don't it was extinguished it's on let me ask you this i think you raise the idea that because the trails act was raised as a defense it's different but opposing counsel indicated that in the first amendment complaint that the of the trails act came right out in the first paragraph does that make any difference and i don't think it does under these five cases i just mention in fact what easton says a ninth circuit case is that  the if the plaintiffs claim was properly played it's a part of the well pleaded complaint wolf we act if we actually look at what the source of the party's rights are and it really just falls under state law and there's no federal jurisdiction in this case a lot like though i don't think it is your honor i think that grable was not where the plaintiffs were merely anticipating an