PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-2482

TAMMY A. SKIDMORE,

Plaintiff − Appellant,

v.

NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia corporation,

Defendant – Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at 

Charleston. Thomas E. Johnston, District Judge. (2:18−cv−01308)

Argued: January 27, 2021 Decided: June 14, 2021

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote 

the opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED: Jason Patrick Foster, THE SEGAL LAW FIRM, Charleston, West Virginia, 

for Appellant. Raymond A. Atkins, SIDLEY AUSTIN LLP, Washington, D.C., for 

Appellee. ON BRIEF: Scott S. Segal, Robin Jean Davis, THE SEGAL LAW FIRM, 

Charleston, West Virginia, for Appellant. John H. Mahaney, II, Ellen M. Jones, William 

C. Brown, III, DINSMORE & SHOHL LLP, Huntington, West Virginia, for Appellee.
2

DIAZ, Circuit Judge:

This case pits two important interests against one another: Tammy Skidmore’s 

interest in preventing her home’s foundation from eroding into the creek next to her 

property, and Norfolk Southern Railway Company’s (and, indeed, the nation’s) interest in 

protecting land within the national railway corridor against those who wish to adversely 

possess it. At this junction, however, we need only resolve whether state or federal courts

must decide whose interest prevails. As we explain, the district court correctly rejected 

Skidmore’s attempt to litigate in state court because federal law completely preempts two 

of Skidmore’s state-law claims. But the court was wrong to then dismiss the case on the 

ground that it lacked subject matter jurisdiction over the claims. So we vacate the district 

court’s judgment and remand for further proceedings.

I.

Tammy Skidmore owns a home in Kincaid, West Virginia. About 70 to 80 feet east 

of her home lies a set of railroad tracks owned and operated by Norfolk Southern Railway 

Company, which transports goods by rail throughout much of the United States. Loop 

Creek, a tributary of the Kanawha River, runs in between Skidmore’s home and Norfolk 

Southern’s tracks.

In 2001, Norfolk Southern secured permission from local authorities to install a 

culvert to drain surface water from its tracks into Loop Creek near Skidmore’s home. It

built the culvert to drain the water at an angle perpendicular to the direction of Loop 

Creek’s natural flow. According to Skidmore, the water streaming from the culvert caused
3

“bars” to form in Loop Creek’s riverbed, J.A. 23, which diverted the creek’s flow into the 

bank on her side of the creek. She claims that the “constant and continuous” soil erosion 

caused by the creek’s altered flow has washed away three to five feet of the creek bed on 

her side of the water. That erosion has begun “threaten[ing] the foundation of her home.” 

J.A. 24.

Skidmore sued Norfolk Southern in West Virginia state court in March 2017, 

initially alleging only state-law claims for negligence, private nuisance, and trespass. In 

response to the suit, Norfolk Southern obtained the relevant property deeds and conducted 

a survey of the land on both sides of Loop Creek. The survey and deeds revealed that, in 

1903, Norfolk Southern obtained a right of way extending 75 feet from the center of its 

tracks, across Loop Creek, and over a portion of the land on the other side. A portion of 

Skidmore’s house now sits atop the land over which the right of way runs.

1

After learning about the right of way, Norfolk Southern amended its answer on 

March 16, 2018 to include as an affirmative defense that Skidmore lacked standing to 

pursue her state-law claims because she had no right to exclude Norfolk Southern from the 

land. In response, Skidmore amended her complaint on August 23, 2018 to include new 

claims for adverse possession and prescriptive easement (the “quiet title claims”), both of 

which asserted that she was the exclusive owner of the land at issue by operation of West 

1 The history of the land conveyances related to the right of way is somewhat 

convoluted. Skidmore, however, doesn’t dispute that the right of way exists. Nor does she 

claim that she has always owned the land free and clear or that she’s the exclusive owner 

of the land under a good-faith purchaser theory. 
4

Virginia law.2

 On September 20, 2018—28 days later—Norfolk Southern removed the 

case to federal court under the theory that the Interstate Commerce Commission 

Termination Act completely preempts the quiet title claims. See Lontz v. Tharp, 413 F.3d 

435, 439–40 (4th Cir. 2005) (describing the complete preemption doctrine’s jurisdictional 

implications).

Skidmore moved to remand, arguing that Norfolk Southern’s removal was untimely 

and that the district court lacked subject matter jurisdiction because Skidmore completed 

her takeover of the land before Congress passed the Termination Act. The district court 

rejected both arguments.

Skidmore then moved the court to reconsider its jurisdictional ruling because, she 

argued, the Termination Act doesn’t completely preempt her quiet title claims. Shortly 

thereafter, Norfolk Southern filed a motion for judgment on the pleadings, contending that 

the Termination Act does, in fact, completely preempt Skidmore’s claims and require their 

dismissal.

The district court resolved both motions in a joint order. It held that Norfolk 

Southern had an ownership interest in the land at issue and that the Termination Act 

completely preempts Skidmore’s quiet title claims. Based on those conclusions, the court

decided that it “lack[ed] subject matter jurisdiction” over the quiet title claims, J.A. 163, 

2 The amended complaint also included two other state-law claims that we need not 

discuss in detail because, for purposes of the jurisdictional questions on appeal, their fate 

is tied to that of Skidmore’s negligence, private nuisance, and trespass claims.
5

that Skidmore “does not own the property she claims eroded,” J.A. 164, and that she 

“lack[ed] standing to pursue” her other state-law claims, id.

This appeal followed.

II.

On appeal, Skidmore renews her arguments that (1) Norfolk Southern’s removal

was untimely, and (2) the district court lacked jurisdiction over the case (and shouldn’t 

have granted Norfolk Southern’s motion for judgment on the pleadings) because the 

Termination Act doesn’t completely preempt her quiet title claims.3

 We begin with the 

timeliness argument.

A.

Because the district court’s denial of Skidmore’s motion to remand was a 

jurisdictional ruling, we review it de novo. Elliott v. Am. States Ins. Co., 883 F.3d 384, 

390 (4th Cir. 2018).

The rules governing removal to federal court provide that a defendant “shall have 

30 days after receipt by or service . . . of the initial pleading or summons . . . to file the 

notice of removal.” 28 U.S.C. § 1446(b)(2)(B). If “the case stated by the initial pleading 

is not removable,” however, a defendant may remove the action “within 30 days after 

receipt . . . of a copy of an amended pleading, motion, order or other paper from which it 

3 Skidmore doesn’t argue, as she did below, that the district court lacked jurisdiction 

because she completed her purported takeover of the land before Congress passed the 

Termination Act. We therefore decline to address that argument.
6

may first be ascertained that the case is one which is or has become removable.” Id. at 

§ (b)(3). Under either scenario, a defendant’s 30-day removal clock doesn’t begin until the 

basis for removal jurisdiction becomes “apparent within the four corners of the initial 

pleading or subsequent paper.” Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 

1997); see also Hurley v. CBS Corp., 648 F. App’x 299, 304 (4th Cir. 2016) (“[U]ntil the 

defendant receives some indicia of removability, the 30-day clock does not begin to run.”).

Norfolk Southern contends that its removal was timely because it filed its notice of 

removal 28 days after Skidmore filed her amended complaint, which plainly stated her

quiet title claims for the first time. Skidmore, on the other hand, claims that the 30-day 

clock should have started when she filed her original complaint or, at the latest, when 

Norfolk Southern moved to amend its answer to include Skidmore’s lack of standing as an 

affirmative defense. We agree with Norfolk Southern.

While Skidmore alleged in her original complaint that she owned the land at issue, 

she did so without relying on adverse possession or prescriptive easement theories and 

without knowledge of Norfolk Southern’s right of way. Indeed, Skidmore didn’t become 

aware of Norfolk Southern’s possessory interest in the land until the railroad conducted its 

land survey and reviewed the relevant deeds after she filed suit. So Skidmore had no need 

to include the quiet title claims in her original pleading because, as she understood the 

facts, she owned the land free and clear of any encumbrances. As a result, there was no

quiet title claim apparent in Skidmore’s original complaint. 

In West Virginia, a plaintiff seeking to adversely possess a right of way granted by 

deed must show that her possession was “hostile at its inception, adverse, actual, visible, 
7

open, notorious, exclusive, under claim of ownership and continuous for [10 years].” White 

v. Lambert, 332 S.E.2d 266, 268 (W. Va. 1985). The elements of a prescriptive easement 

claim in West Virginia are similar:

(1) the adverse use of another’s land; (2) that the adverse use was continuous 

and uninterrupted for at least ten years; (3) that the adverse use was actually 

known to the owner of the land, or so open, notorious and visible that a 

reasonable owner of the land would have noticed the use; and (4) the 

reasonably identified starting point, ending point, line, and width of the land 

that was adversely used, and the manner or purpose for which the land was 

adversely used.

Weatherholt v. Weatherholt, 769 S.E.2d 872, 880 (W. Va. 2015) (cleaned up).

Nothing in the original complaint would have alerted Norfolk Southern that 

Skidmore was attempting to quiet title of the land under either of those two theories. The 

complaint contained no allegations about, for example, Skidmore’s hostile and 

uninterrupted use of the land for at least ten years or Norfolk Southern’s knowledge of that 

use. By comparison, her amended complaint makes her quiet title claims crystal clear. 

Thus, Norfolk Southern’s removal clock didn’t start when Skidmore filed her original 

complaint.

Nor did it start when Norfolk Southern amended its answer. The purpose of that 

amendment was to assert that Skidmore lacked standing to pursue negligence, trespass, and 

nuisance claims to protect land she didn’t own exclusively. We see no reason—and 

Skidmore provides none—to conclude that Norfolk Southern’s amendment was a tacit sign 

that it anticipated a future quiet title claim.

To the contrary, the quiet title claims didn’t become “apparent within the four 

corners” of any post-complaint “paper” until August 23, 2018, Lovern, 121 F.3d at 162, 
8

when Skidmore amended her pleading to include them. Norfolk Southern’s removal clock 

began on that date because, until then, it couldn’t have ascertained the theory that supported 

removing the case: that the Termination Act completely preempts the quiet title claims.

In sum, because Norfolk Southern removed the action to federal court on September 

20, 2018—within 30 days of August 23—its removal was timely. 

B.

We turn next to Skidmore’s argument that the Termination Act doesn’t completely 

preempt her quiet title claims. Because the question is one of federal jurisdiction, and 

because we review it in the context of the district court’s rulings on motions to remand and 

for judgment on the pleadings, we address it de novo. Elliott, 883 F.3d at 390 (motions to 

remand); Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Beach Mart, Inc., 932 F.3d 268, 274 

(4th Cir. 2019) (motions for judgment on the pleadings).

Under the “well-pleaded complaint” rule, “state law complaints usually must stay 

in state court when they assert what appear to be state law claims.” Lontz, 413 F.3d at 440. 

The rule holds true even when a defendant raises a question of federal law in defense 

against a state-law complaint. Id. at 439. But the doctrine of complete preemption creates 

a “narrow exception” to the well-pleaded complaint rule. It provides that “if the subject 

matter of a putative state law claim has been totally subsumed by federal law—such that 

state law cannot even treat on the subject matter—then removal is appropriate.” Id. at 439–

40.

We’ve emphasized, however, that courts must distinguish complete preemption, a 

“uniquely jurisdictional inquiry,” In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 
9

584 (4th Cir. 2006), from ordinary preemption, which operates only as a defense against a 

claim’s merits, Johnson v. Am. Towers, LLC, 781 F.3d 693, 702 (4th Cir. 2015) (“Complete 

preemption and ordinary preemption on the merits ‘are not as close kin jurisprudentially as 

their names suggest.’”) (quoting Lontz, 413 F.3d at 440). There are two relevant 

distinctions between the doctrines. The first is that, while complete preemption provides

defendants a way to remove cases to federal court, ordinary preemption does not. Lontz, 

413 F.3d at 441 (“Even if [ordinary] preemption forms the very core of the litigation, it is 

insufficient for removal.”). The second is that courts may dismiss a state-law claim when 

ordinary preemption applies, but not when complete preemption applies. Darcangelo v. 

Verizon Commc’ns, Inc., 292 F.3d 181, 195 (4th Cir. 2002).

The district court relied on complete preemption to dispose of Skidmore’s quiet title 

claims, so our analysis focuses on that doctrine.

Because the Supreme Court has concluded only three times that a federal statute 

completely preempts state law (in cases involving the National Bank Act, the Labor 

Management Relations Act, and the Employee Retirement and Income Security Act), see 

Lontz, 413 F.3d at 441, we apply a presumption against complete preemption, Id. at 440. 

But that presumption is rebuttable, even in cases involving statutes that the Supreme Court 

hasn’t discussed in the complete preemption context. Am. Towers, 781 F.3d at 701; see, 

e.g. Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 232–33 (4th Cir. 1993) (holding that 

the Copyright Act completely preempted a plaintiff’s Virginia-law claims).

To rebut the presumption against complete preemption, a defendant must 

demonstrate that “Congress’[s] intent in enacting the federal statute at issue” was to 
10

extinguish the state-law claim. Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 738 (1985). 

This requires a showing that: (1) the preempting statute displays a clear congressional 

intent to “entirely displace” state law; and (2) the preempting statute creates an exclusive

federal cause of action in an area of “overwhelming national interest.” Lontz, 413 F.3d at 

441. We address these requirements in order.

1.

Norfolk Southern contends that the Termination Act—through 49 U.S.C. 

§ 10501(b)—entirely displaces Skidmore’s quiet title claims. Section 10501(b)’s first 

sentence creates the Surface Transportation Board’s “exclusive” jurisdiction over 

(1) transportation by rail carriers, and the remedies provided in this part with 

respect to rates, classifications, rules (including car service, interchange, and 

other operating rules), practices, routes, services, and facilities of such 

carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance 

of spur, industrial, team, switching, or side tracks, or facilities, even if the 

tracks are located, or intended to be located, entirely in one State[.]

Id.4

 And the Act’s second sentence states that “[e]xcept as otherwise provided in this part, 

the remedies provided under this part with respect to regulation of rail transportation are 

exclusive and preempt the remedies provided under Federal or State law.” Id.

As our sister Circuit noted in Elam v. Kansas City S. Ry. Co, the second sentence is 

“the relevant part of Section 10501(b) for determining the scope of the” Termination Act’s

complete “preemption of state law.” 635 F.3d 796, 805 (5th Cir. 2011) (holding that 

4 The Board is an independent federal agency charged with implementing the 

Termination Act. 49 U.S.C. §§ 1301, 1302; Friberg v. Kansas City S. Ry. Co., 267 F.3d 

439, 442 (5th Cir. 2001).
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§ 10501(b) completely preempted one of the plaintiff’s state-law claims). As we explain, 

despite the presumption against complete preemption, § 10501(b)’s second sentence is 

powerful enough to “entirely displace” Skidmore’s quiet title claims. Lontz, 413 F.3d at 

441.

a.

We’ve held that Congress intended § 10501(b) “to displace” (and therefore 

preempt) “‘regulation,’ i.e., those state laws that may reasonably be said to have the effect 

of ‘managing’ or ‘governing’ rail transportation.” PCS Phosphate Co. v. Norfolk S. Corp., 

559 F.3d 212, 218 (4th Cir. 2009). Conversely, § 10501(b) permits the “continued 

application of [state] laws having a more remote or incidental effect on rail transportation.” 

Id.5

 In a recent decision, we determined that § 10501(b)’s preemption language extends 

not only to “statutes and ordinances,” but also to “common-law tort actions.” Edwards v. 

CSX Transportation, Inc., 983 F.3d 112, 121 (4th Cir. 2020). Section 10501(b) therefore 

5 PCS Phosphate dealt with ordinary preemption, not complete preemption. See 

559 F.3d at 216 (stating that the plaintiff filed the case in federal court). Nonetheless, we 

may rely on ordinary preemption cases to inform our analysis here. Rosciszewski, 1 F.3d 

at 229–33 (finding that a state-law claim was preempted, and then discussing in the next 

section whether the court had removal jurisdiction based on that preemption); see also 

Elam, 635 F.3d at 805 (discussing complete preemption while relying on Franks Inv. Co. 

LLC v. Union Pac. R. Co., 593 F.3d 404, 407–08 (5th Cir. 2010), an ordinary preemption 

case); Smart v. Loc. 702 Int’l Bhd. of Elec. Workers, 562 F.3d 798, 804 (7th Cir. 2009) (“A 

logical first step in [the complete preemption] analysis is determining whether the state 

claim is displaced by federal law under an ordinary preemption analysis.”) (cleaned up). 

Thus, drawing on our ordinary preemption case law doesn’t cross the analytical line 

between complete and ordinary preemption, see Lontz, 413 F.3d at 440, particularly when 

both preemption analyses require us to determine whether federal law “displaces” state 

law, id. at 441.
12

reflects Congress’s intent to displace any state-law claims—including those like 

Skidmore’s—that effectively govern or manage rail transportation.

To ascertain whether a claim falls within § 10501(b)’s preemption provision, 

“courts rely” on “[t]he [Surface Transportation Board’s] interpretation of the provision.” 

PCS Phosphate, 559 F.3d at 218. And the Board has unequivocally held that attempts to 

adversely possess a railroad’s property constitute efforts to govern or manage rail 

transportation. 

First, in Jie Ao & Xin Zhou – Pet. For Declaratory Ord., the Board considered a 

claim that two petitioners had adversely possessed land over which a railroad had a right 

of way. FD 35539, 2012 WL 2047726, at *2 (S.T.B. June 4, 2012). Even though the 

railroad wasn’t currently using the land, the Board concluded that “the application of 

adverse possession to [the land at issue] would amount to regulation of rail transportation 

because it would confer exclusive control to the Petitioners over property that is part of the 

national rail network.” Id. at *3. That exclusive control, the Board reasoned, would

“prevent entry onto the property for rail-related maintenance and stabilization/sloping 

repair activities.” Id. at *6. 

The Board also made clear that the § 10501(b) preemption analysis has little to do 

with whether the railroad is currently using its right of way:

[A]ssuming arguendo, that [the petitioners are] correct that the application of 

state adverse possession law here might have little actual, practical effect on 

current plans for active railroad operations, circumstances can change. [The 

petitioners’] approach to preemption would permit landowners to carve off 

strips of railroad [rights of way] all over the country for non-rail use, even 

though the Board has not authorized the [rights of way] to be permanently 

removed from the nation’s rail system under Title 49. That untenable result 
13

would undermine interstate commerce and the strong federal policy in favor 

of retaining rail property in the national rail network, where possible.

Id. at *7 (emphasis added); see also Chessie Logistics Co. v. Krinos Holdings, Inc., 867 

F.3d 852, 859 (7th Cir. 2017) (“As the Surface Transportation Board’s decision in Jie Ao

shows, federal law preempts state-law efforts against railroads to treat railroad rights-ofway as abandoned or lost through adverse possession.”).

Two years later, in a case involving a trucking company’s attempt to adversely 

possess a small, dormant portion of an active railyard, the Board reiterated that § 10501(b) 

preempts any “application of state law claims that would take rail property for another, 

conflicting use, including adverse possession claims that would interfere with rail use, 

present or future.” 14500 Ltd. LLC – Pet. for Declaratory Ord., FD 35788, 2014 WL 

2608812, at *4 (S.T.B. June 4, 2014) (emphasis added).

With these cases in mind, we turn to the parties’ contentions. Norfolk Southern 

argues that Skidmore’s quiet title claims (if successful) would remove the land at issue 

from the national railway system and deprive Norfolk Southern of the ability to use the 

land to support its rail transportation operations. Skidmore responds that her claims can’t 

effectively govern or manage Norfolk Southern’s rail transportation operations because 

Norfolk Southern has never utilized the land on her side of Loop Creek, and has no 

immediate plans to do so. Of course, Norfolk Southern contends that it does, in fact, utilize

the land by draining its surface water into Loop Creek and the abutting creek bed. But

even if Skidmore is correct, the fact that Norfolk Southern may use the land in the future 
14

is enough to hold that her claims constitute an attempt to govern or manage rail 

transportation.

Skidmore spills much ink arguing that the Termination Act can’t completely 

preempt her quiet title claims because the Act doesn’t preempt (1) “all state law causes of 

action,” Appellant’s Br. at 16–22, or (2) all “state-law quiet title” claims, Reply Br. at 3–

8. Those general statements may be true, but they miss the point. Norfolk Southern doesn’t 

need to show that § 10501(b) displaces all state law claims brought against railways or all 

quiet title actions in every context. Rather, it must establish only that the Termination Act 

displaces Skidmore’s particular claims because, in this particular case, they effectively

regulate rail transportation when brought against railroads like Norfolk Southern.

Skidmore also seizes on Jie Ao’s separate treatment of the petitioners’ adverse 

possession and prescriptive easement claims to argue that her prescriptive easement claim 

should proceed in state court, even if § 10501(b) completely preempts her adverse 

possession claim. And it’s true that the Board determined that state courts can and should 

address prescriptive easement claims like the one the Jie Ao petitioners brought. 2012 WL 

2047726, at *7–*8. But, importantly, the Jie Ao petitioners’ prescriptive easement claim 

wouldn’t have deprived the railroad of its right of way—instead, the petitioners sought a 

“prescriptive nonexclusive easement.” Id. at *7 (emphasis added). 

According to the Board, easements that don’t “take railroad property outright” don’t 

necessarily “affect the rail network in the same way as carving out property that is part of 

a railroad.” Id. Since such easements may still “allow the railroad to access the property,” 

the Board determined that the railroad could still use the land for rail transportation and 
15

state courts could apply state law to determine the scope of the nonexclusive easement at 

issue. Id.

In 14500 Ltd. LLC, however, the Board distinguished nonexclusive prescriptive 

easement claims from those that “seek[] to exclude [the railroad] from the property.” 2014 

WL 2608812, at *5. Because 14500 Ltd. LLC involved a claim for an easement that would 

exclude the railroad from the land, the Board determined that the district court in that case 

“correctly concluded that the exclusive easement claim has the same effect as the adverse 

possession claim and is preempted by § 10501(b).” Id.

Here, Skidmore’s claim for prescriptive easement is, for all intents and purposes, 

the same as her claim for adverse possession because, through it, she hopes to exclude 

Norfolk Southern from the land on her side of Loop Creek. Her amended complaint seeks 

to “quiet title” in her favor through prescriptive easement so that she can use the land “in a 

manner consistent with normal and customary use of residential real estate.” J.A. 27–28, 

30. Nowhere in her pleadings or briefs does she suggest that the claim is limited to the 

nonexclusive ownership of the land at issue. And that makes sense, for such relief wouldn’t 

accomplish her goal of preventing Norfolk Southern from also using Loop Creek and its 

creek beds for drainage purposes.

Since both of Skidmore’s quiet title claims operate to exclude Norfolk Southern 

from the land at issue, their analysis with respect to § 10501(b) merges. And since both 

have the effect of managing or governing rail transportation, they’re the type of state-law 

claim that § 10501(b) displaces. Edwards, 983 F.3d at 121.
16

b.

Skidmore also argues that her claims don’t effectively manage or govern rail 

transportation because the way that Norfolk Southern wishes to use the land doesn’t qualify 

as “rail transportation” within § 10501(b)’s meaning. But it’s difficult to imagine how a 

party could exclude a railroad company from land that it uses for track drainage without

effectively governing how the railroad conducts its transportation operations. Indeed, 

ensuring proper surface-water drainage from a railroad’s tracks is so vital to railroad 

maintenance that federal law requires all railroad tracks to be “supported by material which 

will . . . [p]rovide adequate drainage for the track.” 49 C.F.R. § 213.103.

The Termination Act’s text supports our conclusion. The Act defines 

“transportation,” in the context of railroads, to include a “facility . . . or equipment of any 

kind related to the movement of passengers or property, or both, by rail.” 49 U.S.C. 

§ 10102(9)(A). Since the Act doesn’t further define “facility” or “equipment,” we must 

give the words their ordinary meaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 

560, 566 (2012). In this context, a railroad’s “facilities” describe the “physical means or 

equipment required for doing something.” Facility, OXFORD ENGLISH DICTIONARY, 

https://www.oed.com/view/Entry/67465?redirectedFrom=facility#eid (last visited May 

27, 2021). Similarly, the term “equipment” means “all the fixed assets other than land and 

buildings of a business enterprise.” Equipment, MERRIAM-WEBSTER’S DICTIONARY, 

https://www.merriam-webster.com/dictionary/equipment (last visited May 27, 2021). 

If § 10501(b) displaces all state-law claims that effectively manage or govern rail 

“transportation,” then it displaces claims that effectively manage or govern: (1) the physical 
17

means required for operating a railroad and (2) a railroad’s fixed assets other than land or 

buildings. Using those definitions, railroad tracks undoubtedly qualify as “facilities” and 

“equipment,” so they also qualify as “rail transportation” under the Termination Act. And 

the goal of Skidmore’s lawsuit is to exclude Norfolk Southern from her side of Loop Creek 

so that she can dictate how Norfolk Southern drains surface water from those tracks. In 

essence, she desires to use state law to manage or govern how the railroad conducts its rail 

transportation operations—a result that the Termination Act can’t abide.

Congress plainly intended, through § 10501(b), to preempt state-law claims that 

have the effect of regulating rail transportation. Skidmore’s quiet title claims are such 

claims.

2.

We next consider whether the Termination Act creates an exclusive federal cause 

of action in an area of “overwhelming national interest.” Lontz, 413 F.3d at 441. We 

conclude that it does.

a.

The Act states that “[a] rail carrier providing transportation subject to the 

jurisdiction of the [Surface Transportation Board] under this part is liable for damages 

sustained by a person as a result of an act or omission of that carrier in violation of this 

part.” 49 U.S.C. § 11704(b). Section 11704 also provides that “[a] person may file a 

complaint with the Board under section 11701(b) of this title or bring a civil action under 

subsection (b) of this section to enforce liability against a rail carrier providing 
18

transportation subject to the jurisdiction of the Board under this part.” 49 U.S.C. 

§ 11704(c). 

Three other circuits have construed these provisions to “contemplate[] civil actions 

against rail carriers” filed directly in federal court. Elam, 635 F.3d at 809 (Fifth Circuit);

Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 204–05 (1st Cir. 2000); 

Consol. Rail Corp. v. Grand Trunk W. R. Co., 607 F. App’x 484, 491 (6th Cir. 2015). And 

in a recent unpublished opinion, we agreed. See Norfolk S. Ry. Co. v. Baltimore & 

Annapolis R.R., 715 F. App’x 244, 248–49 (4th Cir. 2017) (concluding that federal courts 

and the Board have concurrent original jurisdiction over disputes under the Termination 

Act). We now reaffirm that the Termination Act creates a cause of action that plaintiffs 

can pursue directly in federal court.

To be sure, Skidmore’s claims ask the court to quiet title to the land in her favor, 

whereas the Termination Act appears to contemplate only damages awards and judicial 

enforcement of Surface Transportation Board orders. 49 U.S.C. § 11704(a)–(c). But the 

Supreme Court has held that complete preemption requires only that the preempting federal 

statute provide a cause of action that preempts state law, not that the statute provide 

remedies like those available under state law. Avco Corp. v. Aero Lodge No. 735, Int’l 

Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 561 (1968) (“The nature of the 

relief available after jurisdiction attaches is, of course, different from the question whether 

there is jurisdiction to adjudicate the controversy.”); Caterpillar Inc. v. Williams, 482 U.S. 

386, 391 n.4 (1987) (reiterating that state-law claims may be removable through complete 

preemption even though the preempting statute doesn’t provide remedies available under 
19

state law); see also Singh v. Prudential Health Care Plan, Inc., 335 F.3d 278, 292 (4th Cir. 

2003) (ruling that, when a claim is completely preempted, “the district court must consider 

only remedies authorized by [the preempting federal statute] and must reject all others.”).

That’s what we have here. Although the Termination Act makes no adversepossession-like remedy available to plaintiffs, the Act nonetheless affords plaintiffs a 

federal cause of action. And, by its terms, the Act makes that cause of action the 

“exclusive” avenue for obtaining judicial relief by “preempt[ing] the remedies provided 

under . . . State law.” 49 U.S.C. § 10501(b). Since we’ve also held that § 10501(b)’s 

language’s “preemptive effects” make the federal cause of action the exclusive avenue for 

plaintiffs seeking relief, Edwards, 983 F.3d at 121, Norfolk Southern has satisfied this step 

of the analysis.

b.

Finally, in the context of this case, Skidmore’s quiet title claims qualify as “claims 

of overwhelming national interest.” Lontz, 413 F.3d at 441. Like the national banking 

system that the Supreme Court discussed in Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 

2 (2003), the web of interstate rail lines that connects our country’s far-flung cities is a 

“subject of unique national concern.” Lontz, 413 F.3d at 441 (discussing Anderson). 

Broadly speaking, Congress recognized “long ago” that “a uniform regulatory scheme is 

necessary to the operation of the national rail system.” United Transp. Union v. Long 

Island R. R. Co., 455 U.S. 678, 688 (1982). And the Supreme Court has long viewed the 

national rail system as a “most important national industry, ” Bhd. of R.R. Trainmen v. Chi. 
20

River & Ind. R.R. Co., 353 U.S. 30, 40 (1957), that’s become “essential to the national 

economy,” United Transp. Union, 455 U.S. at 688.

More specifically, Congress has codified our “national policy to preserve 

established railroad rights-of-way for future reactivation of rail service [and] to protect rail 

transportation corridors.” 16 U.S.C. § 1247(d). That very policy animated the Surface 

Transportation Board’s conclusion in Jie Ao that the Termination Act preempted the 

petitioners’ adverse possession claim. 2012 WL 2047726, at *7 (holding that permitting

“landowners to carve off strips of railroad [rights of way] all over the country for non-rail 

use” without the Board’s authorization would be an “untenable result” that “would 

undermine interstate commerce and the strong federal policy in favor of retaining rail 

property in the national rail network.”).

Indeed, allowing an individual landowner to wrest exclusive control of land within 

the national rail corridor away from a railroad could expose a rail carrier to death by a 

thousand cuts. Rail carriers would either have to be hyper-vigilant about fending off

adverse possession claims along countless miles of tracks, or risk losing ownership 

interests in land that is (or might be) necessary to conduct business and comply with federal 

regulations. Because maintaining a unified federal mechanism for governing the national 

rail network is an issue of overwhelming national importance, federal law must preempt 

Skidmore’s quiet title claims.

* * *

In sum, the Termination Act’s exclusive cause of action demonstrates Congress’s 

clear intent to “entirely displace” attempts to use state-law adverse possession or 
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prescriptive easement claims to dispossess a railroad of land over which it has a right of 

way. That intent reflects the primacy that Congress places on maintaining the national 

railway network. We therefore affirm the district court’s conclusion that the Termination 

Act completely preempts Skidmore’s quiet title claims.

III.

At this point, however, we part ways with the district court’s analysis. In its joint 

order resolving the parties’ motions, the court first denied Skidmore’s motion to remand

because the Termination Act’s complete preemption of Skidmore’s quiet title claims

created federal removal jurisdiction. Then, after turning its attention to Norfolk Southern’s 

motion for judgment on the pleadings, the court dismissed the quiet title claims because 

they were “completely preempted by the [Termination Act] and, thus,” the court “lack[ed] 

subject matter jurisdiction over” them. J.A. 163. 

Those two rulings are incompatible, and the latter runs contrary to the complete 

preemption doctrine’s purpose. As explained above, a court’s conclusion that complete 

preemption applies means that the court has jurisdiction over ostensibly state-law claims, 

not that it lacks jurisdiction over them. Lontz, 413 F.3d at 439–40. The district court’s 

decision to dismiss Skidmore’s quiet title claims for lack of jurisdiction based on complete 

preemption was therefore error. Darcangelo, 292 F.3d at 195 (“[W]hen a claim under state 

law is completely preempted and is removed to federal court because it falls within the 

scope of [the preempting statute], the federal court should not dismiss the claim as 

preempted . . . .”).
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Since the district court had jurisdiction over Skidmore’s claims, the question then 

becomes how it should have resolved them. In this circuit, when a court finds that a federal 

statute completely preempts a state-law claim, complete preemption “transforms the 

plaintiff’s state-law claims into federal claims,” meaning that, effectively, there’s “no such 

thing as the state action.” Lontz, 413 F.3d at 441 (cleaned up). In other words, the district 

court must “convert” the state-law claims “into federal claims that need to be decided as 

federal claims under” the preempting statute. Singh, 335 F.3d at 292; see also 

Rosciszewski, 1 F.3d at 234 (holding that removal was proper based on complete 

preemption before concluding that the district court properly dismissed claims based on res 

judicata).

On remand, then, the district court must convert Skidmore’s quiet title claims into 

claims under the Termination Act and analyze them using the Federal Rule of Civil 

Procedure 12(c) standard that governs Norfolk Southern’s motion for judgment on the 

pleadings. The court may, if it chooses, permit Skidmore to amend her complaint to clarify

the scope of her Termination Act claims before revisiting Norfolk Southern’s motion. See 

Singh, 335 F.3d at 292. But “[r]egardless of how [Skidmore’s] claims are ultimately 

pleaded, the remedies available to” her with respect to her preempted claims “are limited 

to those remedies set forth in” the Termination Act. Id. Additionally, because it appears 

that the district court (at least in part) based its decision to dismiss Skidmore’s 

“unreasonable use, private nuisance, trespass, strict liability, and negligence” claims on its 

complete preemption ruling, see J.A. 163, the court should also reexamine those claims.
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IV.

For these reasons, we affirm the district court’s ruling on Skidmore’s motion to 

remand, vacate the court’s ruling on Norfolk Southern’s motion for judgment on the 

pleadings, and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED