### The Honorable Terry I. Adelman, United States Magistrat e 1 

### Judge for the United States District Court for the Eastern D istrict of Missouri. The parties consented to try their case befor e Magistrate Adelman pursuant to 28 U.S.C. § 636(c). ___________ No. 95-3588

___________ Grantwood Village, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Miss ouri. Missouri Pacific Railroad * Company; Gateway Trailnet, * Inc.; Grant's Farm Manor, Inc.; * Union Pacific Railroad Company, * * Appellees, *

____________________ * * Rails to Trails Conservancy, * * Amicus Curiae. *

___________ Submitted: April 10, 1996 Filed: September 9, 1996

___________ Before BOWMAN, BEAM, and MURPHY, Circuit Judges.

___________ BEAM, Circuit Judge.
This case involves a dispute over the conversion of a railroad rightof-wayinto a trail system under the National Trail Systems Act (Trail s Act). Grantwood Village (the Village ) appeals the district court's order 1 granting summary judgment to the defendants. For reversal, Grantwood make s two broad arguments:

### As of January 1996, the ICC was abolished as a separat e 2 

### agencyand its functions have been taken over by the Surfac e Tran sportation Board (STB) in the Department of Transportation

. This administrative change, however, does not affect our analysis in the present case because the applicable laws have also bee n amended to apply to the STB. Therefore, for ease of reference we continue to refer to the entity as the ICC throughout this o pinion.
-2- (1) the district court did not have jurisdiction over this disput e involving rights to r eal property under Missouri law; and (2) even if the district court had jurisdiction, Gateway Trailnet, Inc. (Trailnet) does no t have a valid interest in the property. We affirm.

I. BACKGROUND
The origin of this dispute derives from a letter dated April 6, 1872, in which President Ulysses S. Grant authorized his St. Louis agent, Charle s W. Ford, to grant Pacific Railroad Company (Pacific) a right-of-way over hi s land outside of St. Louis, Missouri. Later in 1872, Pacifi c
cons tructed its Carondelet Branch across this property. There is n o recorded easement or other indicia of title from President Grant t o Pacific.

Mis souri Pacific Railroad Company (MoPac), Pacific's successor i n interest to the right-of-way, provided railroad service to customers on th e Carondelet Branch until approximately 1987, at which time the line was use d for other types of railroad service. In June 1991, MoPac's parent company , Union Pacific, decided to proceed with abandonment of the Carondele t Bran ch. Thus, in early 1992, MoPac filed notice with the Interstat e Commerce Commission (ICC) pursuant to 49 C.F.R. § 1152.50, seekin g 2 exemption from other applicable federal laws governing the procedures for abandonment of any part of a railroad line (set out in 49 U.S.C.A. §§ 1090 3 & 10904 (West Supp. 1996)). MoPac's request for abandonment an d discon tinuance of operations over 6.2 miles of the Carondelet Branc h included the portion of the right-of-way now in

### -3-

que stion. On February 28, 1992, a Notice of Exemption was served an d published in the Federal Register . This Notice of Exemption was to become effective on March 29, 1992.

Prior to publication of the notice, Trailnet asked the ICC to issue
a Notice of Interim Trail Use or Abandonment (NITU) pursuant to IC C regula tions (49 C.F.R. § 1152.29) adopted to implement the applicabl e portion of the Trails Act. See 16 U.S.C.A. § 1247(d) (West Supp. 1996). MoPac expressed its willingness to negotiate with Trailnet for interi m trail use by filing a letter with the ICC.

On March 25, 1992, the ICC issued its Decision and NITU (Decision), in which it reopened proceedings and stated that the Notice of Exemption published in the Federal Register on February 28 was modified as necessary to implement interim trail use under the Trails Act. The ICC furthe r state d in its Decision that interim trail use could be implemented if , within 180 days from the date of service of the Decision, an agreement was reached. The Decisio n also provided that if no agreement were reached by that time, MoPac could abandon that line. Subsequently, the ICC granted two e xtensions of the 180-day negotiation period at the request of th e parties.

On Decemb er 30, 1992, one day before time was to expire under th e extensions, MoPac and Trailnet entered into a "D onation, Purchase and Sale Agreement" (Agreement) under which MoPac agreed to sell its interest in th e proper tyto Trailnet for interim trail use. MoPac contemporaneousl y executed and delivered a quitclaim deed to Trailnet. The Agreemen t expressly stated that it did not merge into the deed, thereby surviving th e closing and transfer of title. The Agreement also expressly stated that its terms and the transfer were subject to the provisions of the Trails Ac t and applicable ICC orders. Upon transfer of the property, MoPac

### The Village added Grant's Farm Manor, Inc.--the fee title

3 

### holder to property south of th e disputed railroad right-of-way--as a named defendant in the event that entity could claim som e interest in the property at issue.
-4- removed its rails and ties. Trailnet made impro vements and has maintained the property for trail use.
The right-of-way in question is loca ted on real property adjacent to lots in a Village subdivision. The Village has been using portions of thi s property as a parkway and bird sanctuary. The Village originally filed a single-count quiet title action in state court a gainst MoPac and Trailnet. MoPac ans wered by stating that it no longer had any interest in th e property because it had been transferred to Trailnet. In its first amende d petition, the Village sought a declaratory judgment regarding the rights of the pa rties in the property at issue. Specifically, the Villag e requested a declaration that it is the fee simple absolute owner of th e real property. The Village also sought ejectment of Trailnet, Grant's Far m Manor, I nc., and another party subsequently dismissed from the case

. 3 Trailnet had the case removed to federal district court on the basis that the first amended petition includes rights of Trailnet arising under the laws of the United States--i.e., the Trails Act. The district court denie d the Village's motion to remand the case back to state court.

Both Trailnet and the Village filed cross-motions for summar y judgmen t. The district court denied the Village's motion but grante d summaryjudgment to MoPac and Trailnet. The court concluded that unde r Missour i law, Pacific had acquired an easement by estoppel, which ha d passed to MoPac and eventually to Trailnet. The court rejected th e Village's contention that any right held by MoPac had been abandoned for railroad purposes, holding that the ICC had reta ined jurisdiction over the right-of-way by authorizing interim trail use and that federal law preempt s state law on the question of abandonment. Finally, the district cour t concluded

### -5-

that i t lacked jurisdiction to review an ICC order. The Village no w appeals to this court.

On appeal, the Village asserts that federal courts lack subjec t matter jurisdiction to hear this dispute because it involves rights to rea l propertyunder Missouri law. Thus, according to the Village, this cas e should be remanded to state court. The Village also argues that Trailnet does not have an interest in the property under Missouri law.

II. DISCUSSION

We review a grant of summary judgment de novo and apply the sam e standards as the district court. Allen v. Bridg estone/Firestone, Inc. , 81 F.3d 793, 795 (8th Cir. 1996). Summary judgment is appropriate if th e pleadings and other evidence "show that there is no genuine issue as to an y material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We give the nonmoving party the benef it of every inference drawn from the evidence. Reich v. ConAgra , Inc. , 987 F.2d 1357, 1359 (8th Cir. 1993).

We are first called upon to determine whether the district cour t erred in determining that this case was properly removed from state court. We conclude that it did not. Although the Village attempts to characteriz e thi s lawsuit as a "quiet title" action, it is in essence a collatera l attack on the ICC's order authorizing interim trail use on the right-ofway. Trailnet receiv ed MoPac's interest pursuant to a quitclaim deed and Agreement executed incompliance with the ICC's Decision and NITU. Thus,
a challenge to Trailnet's interest in the right-of-way necessarily include s
a review of the ICC's Decision. Moreover, the Village's attempt to preven t the preservation of the railroad right-of-way necessarily entails a findin g that MoPac abandoned the right-of-way at some point in time. Because the ICC has exclusive and plenary authority

### Complaints originally filed in state court opposing, eithe r 4

### directly or indirectly, the continued use of a railroad right-ofwayunder the Trails Act are routinely removed to federal court , even th ough the district court goes on to hold that it lack s jurisdiction to review an ICC order. See , e.g. , Schneider v . Union Pac. R.R
. , 864 F. Supp. 120 (D. Neb. 1994); Victor Oolitic Ston e Co. v. CSX Transp., Inc. , 852 F. Supp. 721 (S.D. Ind. 1994).
-6- to determine whether a rail line has been abandoned, see , e.g. , Chicago & N.W. Tran sp. v. Kalo Brick & Tile, Co. , 450 U.S. 311, 321 (1981), th e question of whether M oPac abandoned the right-of-way necessarily involves federal l aw. See id. ; see also 28 U.S.C. § 1331. Therefore, federa l jurisdiction is proper and the district court did not err in refusing to remand this case to state court. See 28 U.S.C. § 1441(b).

Although the district court had general subject matter jurisdiction unde r 28 U.S.C. § 1331 and a remand to state court was not required, a separate question arises as to whether the distr ict court had jurisdiction to review a lawsuit challenging, in e ffect, the validity of an ICC order. 4 Pursuant to the Hobbs Act, circuit courts (other than the Federal Circuit) have e xclusive jurisdiction over any action to enjoin, suspend, o r deter mine the validity of an ICC order. 28 U.S.C. § 2342(5). No othe r court would have jurisdiction to review an ICC d ecision such as the one in thi s case. Glosemeyer v. Missouri-Kansas-Texas R.R. , 879 F.2d 316, 32 0 (8th Cir. 1989), cert. denied , 494 U.S. 1003 (1990). Therefore, th e dis trict court correctly concluded that it did not have jurisdiction t o review the ICC's Decision.

Although the Village could have challenged the ICC's Decision b y filing a p etition directly in this court, they failed to do so. Th e Village's attacks on the ICC's Decision are, the refore, foreclosed because the Village failed to make these arguments to the ICC and failed to file a petition for judici al review within sixty days of the ICC's decision of March 25, 1992, as re quired by the Hobbs Act. 28 U.S.C. §§ 2341 et seq.; see also 28 U.S.C.

### -7-

§ 2321. Therefore, the Village has waived any challenge to the validity of the ICC's order.

Even aft er reviewing the Village's contentions, we find them to b e without merit. The V illage contends that neither MoPac nor Trailnet have
an interest in the right-of-way. Specifically, the Village asserts that under Missouri law MoPac only had a nontransferable license and that i t abandoned this interest when it stopped using the right-of-way.

We tur n first to the question of what interest Trailnet has in th e Carondelet right-of-way under Missouri law. The Village argues that the right-of-waywas only a license and as such it was not transferable t o Trailnet. We recogni ze that state law defines the nature of the property interest. In this case, a railroad used the right-of-way for over one

hundre d years, undoubtedly incurring significant expenses in doing so

. Presid ent Grant's letter clearly gave MoPac's predecessor in interest a right-of-way across his property. If the intere st in the right-of-way had been only a personal, nontransferable license, then it is curious how the lic ense passed from the original grantee (Pacific) to its successors i n inte rest. Therefore, we agree with the district court that Trailne t received a valid real estate interest from MoPac under Missouri law. See Allee v. Kirk , 602 S. W.2d 922, 924-25 (Mo. Ct. App. 1980) (citing Sanford v. Kern , 122 S.W. 1051 (Mo. 1909)).

The Vill age next contends that MoPac abandoned any interest it ha d in the right-of-way. We are again guided by the principle that the ICC's determination of abandonment is plenary, pervasi ve, and exclusive of state law. See Colorado v. United States , 271 U.S. 153, 164-65 (1926); Kal o Brick & Tile , 450 U.S . at 323. Therefore, federal law preempts state law on the question of abandonment while the ICC ret ains jurisdiction over the right- of-way. Accordingly, we must next examine the applicable federa l law.

### -8- In 196 8, Congress enacted the Trails Act in order to establish a national system of nature trails. See Glosemeyer , 879 F.2d at 318. By th e early 1970s, Congress had become concerned about the abandonment o f railroad rights-of-way. Id. (referring to the R ailroad Revitalization and RegulatoryReform Act of 1976, § 809, Pub. L. No. 94-210, Title VIII, 90 Stat. 144 (codified as amended at 49 U.S.C. § 10906)). One of the major impediments to preserving these rights-of-way existed in state propert y laws which prescribed that once rail service is discontinued after th e ICC's approval of abandonment, such easements would automatically expire and the rights-of-way would revert to adjacent property owners. Id. In
res ponse to this problem, Congress enacted the Trails Act Amendments o f 1983. These amendments included a section that expressly dealt with the question of abandonment. Specifically, this section provides:
Consistent with the purposes of that Act, and in fu rtherance of the national policy to preserve established railroa d rights-ofway for future reactivation of rail service, to protect rai l tra nsportation corridors, and to encourage energy efficien t tra nsportation use, in the case of interim use of an y est ablished railroad rights-of-way pursuant to donation , transfer, lease, sale, or otherwise in a manner con sistent with this chapter, if such in terim use is subject to restoration or re construction for railroad purposes, such interim use shal l not be treated, for purposes of any law or rule of law, as an abandon ment of the use of such rights-of-wayfor railroa d purposes.

16 U.S.C.A. § 1247(d) (emphasis added). Congress determined that interim trail us e was to be treated like discontinuance rather than as a n aban donment. Preseault v. Interstate Commerce Comm'n , 494 U.S. 1, 8 (1990). Therefore, the ICC's authorization of interim trail use in it s Decision precludes a finding of abandonment of the right-of-way under stat e law. See , e.g. , Preseault v. Interstate

### Even if we examine Missouri law, we nevertheless conclud e 5 

### that state law does not mandat e a conclusion that the right-of-way has b een abandoned. See Kansas City Area Transp. Auth. v. 455 0 Main Assocs., Inc. , 742 S.W.2d182, 191 (Mo. Ct. App. 1987), cert. denied , 48 4 U.S. 1063 (1988). In the present case, the fact s indicate that the right-of-way was used for customer service until about 1987, at which time it was used for other types of railroad services until early 1992. This use of the right-of-wa y contradicts a finding of abandonment, even under state law, prior to 1992 at which time the Trails Act was in effect.
A rec ent decision by the D.C. Circuit does not affect ou r 6 

### analysis. In Fritsch v. Interstate Commerce Comm'n , 59 F.3d 24 8 (D.C. Cir. 1995), cert. denied , 116 S. Ct. 1262 (1996), the court held that a railroad could aba ndon its property interest after the ICC issued a decision permitting abandonment but prior to th e expira tion of a 180-day public use condition under 49 U.S.C

. § 10906, thereby ending the ICC's jurisdiction over the property. Unlike the Fritsch case, MoPac did not repeatedly express it s clear intent to abandon the right-of-way after the ICC issued it s Deci sion; rather, MoPac expressed willingness to negotiate wit h Trailnet. Moreover, under the Trails Act, the right-of-way could not have been abandoned during a period of interim use.
-9- Commer ce Comm'n , 853 F.2d 145, 150 (2d Cir. 1988), aff'd , 494 U.S. 1 (1990). 5
The Village next argues that MoPac's abandonment predates the Trails Act's application. Even prior to enactment of t he Trails Act, the ICC had exclus ive jurisdiction to deem a railroad right-of-way abandoned. See , e.g. , Colorado , 271 U.S. at 164-65; Kalo Brick & Tile , 450 U.S. at 319-20. State law claims can only be brought after the ICC has authorized a n aband onment and after the railroad has consummated that abandonmen t authorization. See , e.g. , Hayfield N. R.R. v. C hicago & N.W. Transp. Co. , 467 U.S. 622, 635 (1984). Therefor e, MoPac could only have abandoned its 6 right-of-way, even prior to the Trail Act's application, if the ICC made such a determination, which it has not done in this case.

Lastl y, the Village attacks the validity of the ICC's Decision o n
sev eral other grounds. The Village asserts that the Trails Act i s inapplicable in this case because the quitclaim deed did not

### -10-

expresslyreserve a reversionary interest in MoPac. Moreover, according to the Vil lage, the ICC's Decision is void because the 180-day perio d lapse d before an agreement was reached between MoPac and Trailnet. A s noted above, these ar guments should have been presented to the ICC and in a petition directly t o us challenging the ICC's Decision. Therefore, the Village has waived these arguments. Nevertheless, the plain language of the Agreement demonstrates that both it and the quitclaim deed were drafte d in order to comply with the reversionary interest requirement in the Trail s Act. See 16 U.S.C. § 1247(d). The ICC, moreove r, was free to extend this time period for an agreement as it did in this case. Therefore, we find these arguments meritless.

III. CONCLUSION

For the r easons discussed above we conclude that the district court did not e rr in granting summary judgment to MoPac and Trailnet

. Accordingly, we affirm the district court's order and deny all pendin g motions.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.