indiana harbor boat for decades and that my client had to obtain authorization from the surface transportation board in order to be able to acquire and operate those three tracks your honour's have been rendered completely impassable to rail traffic as a result of the excavation and sewer installation activities of the defendants your honor those activities not only interfere with rail transportation but they also violate the strong federal policy of maintaining assets in the rail network spur tracks in order to remove clouds the closer titles they also saw objects meant of the railroad and the rail assets and they sought declaratory judgment that my client did not have easement rights over those for tracks and what's the the defendants withdrew that counterclaim as they had indicated they would and with or without prejudice without prejudice so that's a problem to our jurisdiction because we've held repeatedly both with plaintiffs claims that are dismissed without prejudice and specifically with counter claims that yes miss without prejudice that could come back again that the dismissal without prejudice effectively defeats finality that if you these these cases weren't cited you bald you all agreed you had a final judgment but i'm very skeptical about that the cases i have in mind are india brewery's six twelve  thirty six fifty one and pages six fifty seven and fifty eight in a case called i toughed i t o f c two thirty five third three sixty you know it's not necessarily an insoluble problem with the defense is willing to say they were dismissing their counter claims with prejudice so they could not assert them again but i'll ask them about that in a few minutes last year here do you any other reason to think we have appellate jurisdiction here while your honors the claim especially with respect to the m the judgment that the that the judge  that may well we can have a heart at least a hypothetical discussion about the merits in case it turns out the defendants are willing to give up their counter claims absent as here so with respect to the section why don't i know three issue wh two and these are sleazy these are the administrative bodies decisions yes your honour's and those are decisions where the surface transportation board made clear that preemption analysis and how it would interpret gramps in those circumstances and those circumstances claims serve to promote interstate commerce promote rail transportation they would not be seen as unreasonably interfering with rail transportation because our torts where the state law torts were trespassing negligence and they therefore do not automatically regulate real transportation replication of them is what becomes crucial let me try to raise my concern this way i understand how congress who i worry about more than the surface transportation board here but i understand how they might be concerned about state courts resolving some sorts of property issues and property and to against property neighbors who try to block or tear up tracks and so on or i'm sure is that that if neighbors try to assert tort claims against the railroad that that could wind up interfering with real transportation and might be preempted some of them it's hard for me to see how claims the railroad asserts against its neighbors under state law would threaten to interfere with real transportation correct your honor and for that for that reason it would not be the preemption question wouldn't come to bear right so why do you would you need a federal cause of action which i mean can and is a good law for the statute that is interpreted but the supreme court has moved way beyond canon in terms of finding employed rates of action and it moved way beyond by the time the negligence because work because state law does not adequately address the right that railroads are given under it and that strong federal which is supposed to promote that strong federal policy of keeping a the rail network true why is it inadequate because your honor for example when we look at that at the mark lane case issues such as property ownership are there not in consequential but the real crux of the matter is whether those action will interfere with interstate commerce and under one zero nine zero three the right that my client has given is the right to not have its services disrupted or and the right to not have assets remove grant emergency injunctive relief what why is that not sufficient because those those issues your honour's as we saw with our case those issues predicate themselves usually on proving ownership on proving whether there isn't and an ownership right the ballast that are meant to support the tracks were ruined they're not ruined you say yeah they're completely contaminated to the point where they have to be replaced and we discussed that and depth and detail and our expert report  about and also with respect to some of the construction activities that occurred a lot of frail was was damaged to it was bent to the point where it has to be replaced and it accelerated a lot of it accelerated the damage to the tracks as opposed to just normal wear and tear so that's the reason why we we that's the reason why they needed to inform us because their activities impacted the integrity of the tracks all three of them answer both the different tracks here absent because there's another statute here ten nine o six that says among other things the board does not have authority over construction acquisition in that case specifically in that case the court discussed how even though the surface transportation board may not actively regulate spur tracks that does not take them outside of surface explicit authority to regulate spur tracks those doesn't say if you don't mind i'd like to grab my brief and i can look at the brief doesn't tell you have enough allegations in our pleadings of negligence to provide notice of the negligence or say issue now with respect to the specific illinois adjacent landowner excavation protection act mentioning that specifically so our expert report was disclosed during expert discussion prior to the to the summary judgment motions and we had discussed the planets that had the opportunity to depose our expert on that question do we have a copy of prejudice i was unaware that would affect the jurisdiction of this court and the counterclaims are predicated on the issue of whether there is a viable easement which the district court decided against the plaintiff and accordingly the counter claims were dismissed so you think the relief of the rejection of a point excuse is good enough for your for yes we made that clear to the district court in connection with summary judgment that we were not intended to pursue the count claims if the easement issue was decided in our favor the and so we intend to dismiss and there was a pending issue as to cost so we didn't want to dismiss with prejudice at the time and looking back on we perhaps should have then but we have no problem dealing them if it's possible so just to be clear this is an unequivocal statement that you are dismissing your counter claims with prejudice yes correct thank you and thank you for that a up and then the other critical issue under the scent of all test is the whether there's a remedy and there is an extensive enforcement regime under this statute and chapter one seventeen zero one one thousand and chessy does already and remedies against a real carrier there is nothing that even remotely suggests that congress intended to create a cause of action against anyone other than a real owner no damage to the truck there's no damage there's no damage and that's one of our arguments when they bought these tracks for two thousand dollars it's a mile of tracks this is jesse the plaintiff it's under a mile or a little over a mile of tracks that were once used to service an industrial park they are no longer use they have top to use they have no customers and they readily admit that and so what are the use of drugs or they don't use them they don't use them at all my understanding is that they get some money from a utility because they have some easement to draw some electrical line on there and are some money paid but otherwise these tracks are absolutely dormant and it's clear from the testimony and their expert testify that if they had a customer theoretically that they could still operate the tracks after that theoretical customer and that is a clear admission but but mission of  that they at the opening comment made by chess i was at these are impassable tracks that can't be utilized we interfered with railroad operations and it's just not accurate factually but theoretically if we had as counsel admits they would have recourse under state law and there is no preemption here under the very restrictive provision that limits preemption to the remedies in the statute that relate to regulation but now suppose suppose they started running car trains over these tracks then then then they would have a good claim against hypothetically if if we were actually many if we damaged the tracks they would have a claim against us and they did have a claim and they asserted it and if they had prevailed they would have been stopped the damage the tracks then they can't run anything  e they have an obligation relative to this surface transportation board to keep the tracks operational if they're damaged they need any have they're damaged by you they chose c there's all the expense of repair you know that if they have a claim they would have recourse against us in this case they sought six hundred eighty thousand dollars for these tracks that they bought for two thousand dollars if they had prepaid prevailed and we had would have to had to pay them six hundred eighty thousand dollars they would have presumably taken the money and fix the tracks and that would have worked perfectly for them but they did not prevail because their claims were not well based they lost and then focused on this private cause of action under this statute but they're only able to provide any rights creating language or any intent by congress anything in the statute that would suggest a intention to provide a private cause of  action the issue with the excavation if i may there's i believe that the issue there is whether there is notice to us fair notice to us of this claim there's nothing in the complaint that  was you who had to notify them that you were going to excavate next to the tracks under the statute if we were excavating below a certain depth we have to give them notice and we have an obligation to maintain what's called lateral support the notice that i'm talking about is notice as a defendant from the plaintiffs but that's something that there are certain so there's nothing in the complaint into it there doesn't have to be a and i was going to say ok i rec was the first time we heard anything about this statute there's no mention of excavation in a complaint there's no mention of digging in the complaint it's the it's the opposite the contention is that we increase the elevation that we be put dirt on top of the tracks we had no reason to believe that they were contending that we were excavated and there's nothing in the record to suggest that we were we didn't dig down we weren't alleged to dig down we were alleged to have increased the elevation to help with drainage on our own property primarily and a small amount of this dirt allegedly was on their tracks and again at no impact on what i thought the excavation which the was the dumping the dirt  i don't believe excavation is is a term it's used in any in any way at all that i know of but i know that was there a sewer installed as part of your project there was a sewer it was raised it was above it as i must admit i don't know the  specifics of the engineering but as i understand it it was that there was there was a sewer and then it was that there was drainage going down to our building and so they they were elevating around it that's that's my understanding but i can stoops i must say i don't know how they did it exactly but i do know that in the complaint there is no mention suggestion even remotely that we excavated so ok what about the plaintiffs are human their expert record disclosed  s negligence per se claim and just as far as i know that was not argued before right then so i cannot i think we were just talking about that i don't recall it being in there i could take the deposition of the expert and i did not ask him about excavation i don't recall it being but i would submit that it to the extent that that's an argument they're making now they waived it i if they had raised it in a brief or raised up below i would have had a fair opportunity to look at i don't know i do know that it was not something that registered with us where we addressed it we didn't take any discovery we have the threshold issue there was no notice but secondarily that there was no evidence excavation in the case and the well there's no definition of excavation in this statute it does talk about death so clearly is going down and it talks about a vision usually me doing you know i'd know that that's about it but that is that that's it at the point to us is that we had no expectation that this was a claim in the case as a district court found i would say lastly on this point in terms of the standard of review the setting was that on summary judgment they raise this claim and there are cases and authority for the proposition that it really is akin to the denial of a motion for leave to amend your complaint that they were trying to add a new claim to the court denied it and the debt should be reviewed on the fuses discretion standard we from i just wanted to start with the port city properties with that circuit i apologize some of that thanks and i also wanted to and to reinforce that these are active tracks nowhere in the record to my client to make any statements that they didn't use them that they were going to use them in the future or that they were integral to their realigned when's the last time a train ran over them the last time we served customers now we had that we had a the demand to ship  facilities in this park that my client can use and going to just base they form the sole yard facilities for manipulate for for real operations that my client can use and thing that my client can use in any way to either manipulate cars or to address larger and to address larger volume real operations or on demand and my client currently has hamburg and its ability to meet any kind of demand and these tracks cannot be operated over as they stand these three tracks specifically cannot be operated over because of that landfill because of the sewer wasn't that was that didn't come out in discovery so what's the about the so what's the evidence of excretion the evidence of excavation is that we saw that the defendants had or that we had  statement again but i believe it was it wasn't made clear it was just that they had started putting tiles and and sewer and sewer equipment next to the spur track between their building and the o