In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-3580

HENRY C. WEDEMEYER and 

MARTHA L. WEDEMEYER,

Plaintiffs-Appellants,

v.

CSX TRANSPORTATION, INC.,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:13-cv-00440-LJM-WGH — Larry J. McKinney, Judge.

____________________

ARGUED JANUARY 11, 2017 — DECIDED MARCH 10, 2017

____________________

Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.

FLAUM, Circuit Judge. In 1989, CSX Transportation successfully petitioned the Interstate Commerce Commission (the 

“ICC”) to end CSX’s obligation to provide common-carrier 

rail service on a portion of track in Putnam County, Indiana. 

The following year, CSX notified the ICC that it had abandoned that segment. Shortly thereafter, CSX leased a portion 
2 No. 15-3580

of its track, including the abandoned segment, for use by a 

grain-shipping company. 

The Wedemeyers own property adjoining the abandoned 

track segment. They sued CSX seeking removal of the tracks 

and possession of the real property underlying the rail line. 

CSX moved for summary judgment, and the district court 

granted its motion, finding that the Wedemeyers’ claims were 

preempted under the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. § 10501(b). We affirm.

I. Background

CSX is one of the largest rail transportation companies in 

the United States and a “rail carrier”1 under the ICCTA. CSX’s 

rail network consists of approximately 21,000 route miles 

spanning 23 states, including Indiana. Historically, CSX and 

its predecessors operated two primary rail lines through Putnam County, Indiana: (1) a north-south line running from Chicago, Illinois, to Cloverdale, Indiana; and (2) an east-west line 

between Indianapolis, Indiana, and Decatur, Illinois. These 

two lines intersected in Roachdale, Indiana. CSX acquired the 

portion of the east-west line at issue by a deed dated 1876 and 

an instrument of appropriation dated 1879 conveyed to CSX’s 

predecessor railway company. CSX has continuously operated trains through Roachdale over the east-west line since at 

least 1966. 

 1 Section 10102(5) of Title 49 of the United States Code defines “rail carrier” 

as “a person providing common carrier railroad transportation for compensation, but ... not ... street, suburban, or interurban electric railways 

not operated as part of the general system of rail transportation.”
No. 15-3580 3

In 1989, CSX filed a petition for an exemption with the ICC

seeking to end CSX’s obligation to provide common-carrier 

rail service on a 26.73-mile segment of mainline track on the 

east-west line (from Milepost 132.45 near Mitchellville, just 

outside of Indianapolis, to Milepost 159.18 near Roachdale). 

The ICC granted CSX’s petition, thereby giving CSX conditional authority to end its obligation to provide common-carrier rail service on that track segment, which would no longer

be “mainline track.” CSX then had several options with respect to this track, including continuing to utilize it as nonmainline track, e.g., as industry, spur, team, switching, or side 

track (collectively, “auxiliary track”);2 or physically removing 

the track.3 In 1990, CSX notified the ICC that it had “abandoned” the segment.4

 2

These terms refer to various private or secondary uses of track, such as to 

serve a particular industrial site, to allow loading and unloading of railcars, or to order and organize rail traffic.

3

CSX included this explanation in its statement of undisputed material 

facts, to which the Wedemeyers failed to respond. To the extent that this 

statement sets forth a legal proposition rather than a factual statement, we 

note that it is nonetheless accurate, see, e.g., Fox v. Surface Transp. Bd., 379 

F. App’x 767, 771–72 (10th Cir. 2010) (discussing track reclassified as auxiliary yard track after abandonment); Union Pac. R.R. Co.—Abandonment 

Exemption—In Weld Cty., CO, No. AB-33, 2004 WL 2202235, at *1 (S.T.B. 

Sept. 30, 2004) (“After abandonment, the line will be converted to an industry track ... .”); The Atchison, Topeka and Santa Fe Ry. Co.—Abandonment 

Exemption—In Lyon Cty., KS, No. AB-52, 1991 WL 120344, at *3 (I.C.C. June 

11, 1991) (concluding that track that was once part of a rail line cannot be 

unilaterally converted into a spur without appropriate abandonment authority); The Atchison, Topeka and Santa Fe Ry. Co.—Abandonment Exemption—Lawrence, KS, No. AB-52, 1988 WL 225784, at *1 (I.C.C. Feb. 1, 1988) 

(“Following the abandonment, [the railroad] will reclassify the track as 

spur and will continue to serve [the shipper] ... .”).
4 No. 15-3580

Since at least 1990, CSX has provided rail service to a 

Roachdale grain-shipping facility located adjacent to CSX’s 

track, to the east of the north-south line. Beginning in 1992, 

CSX leased a portion of the track to the grain shipper for use 

at its facility. The lease granted the grain shipper the right to 

use (1) the CSX mainline track west of Milepost 159.18, which 

connected to the north-south line at Milepost 159.80 (continuous mainline track), and (2) the abandoned track east of Milepost 159.18 (former mainline track). The leased track has been

used for the storage and switching of empty inbound railcars 

and loaded outbound railcars. CSX also retained the right under the lease to switch railcars on the tracks as needed to conduct its own railroad operations, and to operate over the 

leased track with its own locomotives and rail equipment. Between 2001 and 2014, CSX transported more than 15,000 carloads from the grain facility using the tracks.

Henry (“Kit”) Wedemeyer and Martha Wedemeyer own 

real property in Roachdale that adjoins approximately 2,588 

feet of the former mainline (now auxiliary) track east of Milepost 159.18. The Wedemeyers were aware of the rail line and 

its active use when they took up residence on the property in 

2003, accepted the deed to the property in 2005, and constructed their residence adjacent to the rail line. Kit also grew 

 4 The district court opinion, CSX’s Local Rule 56.1 statement, and the parties’ briefs on appeal simply state that CSX “abandoned” the track segment at this time. However, the declaration of Jo Ann Burroughs, Manager 

of Network Services for CSX, to which the briefs cite, clarifies at paragraph 

eight that when CSX seeks authority to “abandon” lines, such as the 26.73-

mile segment from Roachdale to Mitchellville, the track segment is abandoned only for purposes of providing common-carrier rail service. This is 

in contrast to instances of complete abandonment, where any and all rail 

use ceases and/or the tracks are removed. 
No. 15-3580 5

up on the property and recalls trains using the rail line adjacent to the property as far back as the late 1960s. The rail line 

remained in place and operational during the Wedemeyers’ 

entire period of residence and ownership.

The Wedemeyers first complained to CSX about the railroad operations on the track adjacent to their property on or 

about August 2, 2013. In or around September 2013, when the 

Wedemeyers learned that CSX claimed to control the uses of 

the track in question, Kit spoke by telephone to Leah Weider, 

the CSX Transportation Property Services Group Manager, 

and directed CSX to vacate and cease any further entry onto 

the property.

In November 2013, the Wedemeyers filed in Putnam Superior Court a “Complaint to Quiet Title and for Trespass and 

Ejectment and Permanent Injunction,” which sought “immediate and sole possession” of the real property underlying the 

rail line and demanded that CSX “remove its ties, rails, and 

ballast” from the rail line. The Wedemeyers’ complaint alleged that CSX had abandoned the track at issue in December 

2003, pursuant to a settlement agreement and declaratory 

judgment filed in an Indiana state-court class action—Clark v. 

CSX Transp., Inc., No. 29D03-9308-CP-404 (Hamilton Cty. Super. Ct.). The declaratory judgment, which was filed in 2004, 

stated in relevant part: 

4. Where the title held by CSX to that portion of 

the Settlement Corridor has been determined 

pursuant to the Settlement Agreement to be less 

than fee title, the designation of “Easement” appears in the column titled “Interest Status” in 

Exhibit A. With respect to these portions of the 

Settlement Corridor, the Court declares that the 
6 No. 15-3580

Settlement Class Member’s title to the portion of 

the Settlement Corridor adjacent to their property is superior to any claims of title by CSX, 

subject to any prior adjudication of title in a 

Court of law in which the Class Member’s title 

or the title of the Class Member’s predecessor in 

interest was determined not to be superior to 

the title of CSX.

The Wedemeyers’ predecessor-in-interest, Kit’s stepfather, 

had opted into the Clark class, and had filed affidavits of ownership with the Putnam County Recorder in 2004, stating that 

he held superior title to the property underlying the rail line. 

He later conveyed the property to the Wedemeyers.

CSX removed the case to federal court and later moved for 

summary judgment, arguing that the ICCTA preempted the 

Wedemeyers’ state-law claims and that their claims were 

barred as a matter of law by the applicable statute of limitations and by equitable doctrines. The Wedemeyers failed to 

include a Local Rule 56.1 “Statement of Material Facts in Dispute” in their response to CSX’s motion for summary judgment. They contended, however, that their claims were not 

preempted because they sounded in contract (i.e., the settlement agreement in Clark as confirmed by the declaratory 

judgment) and thus did not constitute a “regulation” under 

the ICCTA. They also argued that the statute of limitations did 

not begin to run until 2013, when Kit spoke with CSX. 

The district court held that because the Wedemeyers 

sought to use state law to regulate (i.e., terminate) CSX’s use 

of the easement, their claims were preempted under the 

ICCTA. The court concluded that “regulation” did not refer 

only to a state regulation or action, but rather, to controls or 
No. 15-3580 7

limitations of any kind on the use of rails. The court also rejected the Wedemeyers’ argument that the declaratory judgment was a contractual arrangement to which ICCTA 

preemption ought not apply, finding that the judgment 

“merely decided the nature of CSX[]’s property interest in the 

subject land” without “chang[ing] the fact that the ICCTA 

preempts any attempt to regulate rail transportation.” This 

appeal followed.

II. Discussion

We review de novo a district court’s grant of summary 

judgment, construing all facts and drawing all reasonable inferences in favor of the non-moving party—here, the 

Wedemeyers. See C.G. Schmidt, Inc. v. Permasteelisa N. Am., 825 

F.3d 801, 805 (7th Cir. 2016) (citation omitted). Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law. Fed. R. Civ. P. 56(a); C.G. 

Schmidt, 825 F.3d at 805. We also review de novo the district 

court’s determination of the preemptive effect of a federal 

statute. Union Pac. R.R. Co. v. Chi. Transit Auth., 647 F.3d 675, 

678 (7th Cir. 2011).

The ICCTAabolished the ICC, transferring its functions to, 

and conferring “exclusive” jurisdiction over the regulation of 

railroad transportation on, the Surface Transportation Board:

The jurisdiction of the Board 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, 
8 No. 15-3580

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,

is exclusive. Except 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.

49 U.S.C. § 10501(b). Congress defined “transportation”

broadly to include railroad property, facilities, and equipment 

“related to the movement of passengers or property, or both, 

by rail, regardless of ownership or an agreement concerning 

use.” Id. § 10102(9). The Act does not define “regulation,” but 

we have observed that “Congress’s intent in the Act to 

preempt state and local regulation of railroad transportation 

has been recognized as broad and sweeping.”Union Pac. R.R.

Co., 647 F.3d at 678 (collecting cases).

The STB has explained that there are two manners in 

which state or local actions could be preempted: (1) categorical, or per se, preemption, and (2) as-applied preemption. See 

CSX Transp., Inc.—Petition for Declaratory Order, STB Finance 

Docket No. 34662, 2005 WL 1024490, at *2–3 (S.T.B. May 3, 

2005). “Categorical preemption occurs when a state ... action 

is preempted on its face despite its context or rationale,” such 

as when state preclearance could be used to deny a railroad 
No. 15-3580 9

the ability to conduct some part of its operations, or when a 

state regulates matters directly regulated by the STB (e.g., the 

construction, operation, and abandonment of rail lines). Union Pac. R.R. Co., 647 F.3d at 679 (citation omitted); id. at 679 

n.3 (citation omitted). An action may be preempted “as applied” based on the degree of interference that it has on railroad transportation—that is, if the action would have the effect of preventing or unreasonably interfering with railroad 

transportation. Id. at 679 (citation omitted).

CSX argues, and the district court agreed, that because the 

Wedemeyers seek to end all rail transport on the track in question, their claims are preempted as applied. CSX relies on Union Pacific Railroad, in which we held that the Chicago Transit 

Authority’s condemnation action seeking to take possession 

of a portion of railroad property could be a form of regulation 

preempted by the ICCTA. 647 F.3d at 682–83. We noted that 

Black’s Law Dictionary defined “regulation” as the “act or 

process of controlling by rule or restriction,” 647 F.3d at 679 

n.2 (citing Regulation, BLACK'S LAW DICTIONARY (9th ed.

2009));5 and concluded that because the CTA was seeking to 

control a piece of land through condemnation, its action constituted regulation of rail transportation and preemption obtained, id. at 683; see also Norfolk S. Ry. Co. & the Ala. Great S. 

R.R. Co.—Petition for Declaratory Order, STB Finance Docket 

No. 35196, 2010 WL 691256, at *3 (S.T.B. Feb. 26, 2010) (“using 

state eminent domain law to condemn railroad property or 

facilities for another use that would conflict with the rail use 

is exercising control—the most extreme type of control—over 

 5 The current edition still defines “regulation” as “[c]ontrol over something by rule or restriction.” See Regulation, BLACK’SLAW DICTIONARY (10th 

ed. 2014).
10 No. 15-3580

rail transportation as it is defined in [49 U.S.C. §] 10102(9)”) 

(internal quotation marks omitted). 

The Wedemeyers respond that their claims are not 

preempted because their right to ownership and control 

sounds in contract—that is, the settlement agreement entered 

into voluntarily by CSX and the Clark class, as confirmed by 

the declaratory judgment.6 They also cite to Union Pacific Rail 

Co., in which we cautioned:

Federal preemption does not apply to all situations where the use of property prevents or unreasonably interferes with railroad transportation; it applies to those situations where a regulation prevents or unreasonably interferes with 

railroad transportation. If a state or local government secures the use of property in a way 

that affects railroad transportation by contract 

or other agreement, there is no issue of federal 

preemption; but if it attempts to secure such use 

by regulation (in this case, by condemnation), 

then the possibility of federal preemption may 

arise.

647 F.3d at 682; see also PCS Phosphate Co. v. Norfolk S. Corp., 

559 F.3d 212, 218–19 (4th Cir. 2009) (“Voluntary agreements 

between private parties, however, are not presumptively regulatory acts, and we are doubtful that most private contracts 

constitute the sort of ‘regulation’ expressly preempted by the 

statute. ... Such a broad reading of the preemption clause 

 6 CSX notes in a footnote in its response brief that the settlement agreement 

is not in the record on appeal, but does not appear to dispute that the Clark 

declaratory judgment is the result of a settlement agreement. 
No. 15-3580 11

would make it virtually impossible to conduct business, and 

Congress surely would have spoken more clearly, and not 

used the word ‘regulation,’ if it intended that result.”) (footnote omitted).

If the declaratory judgment did in fact memorialize CSX’s 

agreement to “release all claims to the right of way, and remove the track from use and abandon it,” as the Wedemeyers 

purport in their briefs, then their claims would likely escape 

preemption. The settlement, however, does not deal with the

use of the track in question. Rather, the agreement in Clark, as 

memorialized by the declaratory judgment, appears to do no 

more than decide the nature of CSX’s property interest in the 

land (i.e., fee title versus easement), and the superiority of 

property interests as between CSX and the class members. 

The declaratory judgment and parties’ briefs confirm that CSX 

had only an easement with respect to the tracks at issue.7

However, the judgment does not establish that CSX ever gave 

up their right to enter and use the land. Although paragraph 

1 of the judgment does reference “the abandoned railroad corridor,” this language appears to refer to CSX’s abandonment 

of common-carrier service on the track, not a wholesale abandonment of all rail service or use of the track.

The Wedemeyers seek to establish that CSX did in fact 

completely abandon its easement (and thus pull us into the 

merits of their claims) by citing to two Indiana cases: Consolidated Rail Corp. v. Lewellen, 666 N.E.2d 958 (Ind. Ct. App. 1996),

opinion adopted, 682 N.E.2d 779 (Ind. 1997), and Howard v.

 7 Exhibit A referenced in paragraph 4 of the declaratory judgment was not 

attached to the judgment or included in either parties’ appendices; but 

CSX does not dispute the Wedemeyers’ claim that CSX had only an easement with respect to the track at issue.
12 No. 15-3580

United States, 964 N.E.2d 779 (Ind. 2012). In Lewellen, co-defendant Conrail had discontinued rail service over a corridor 

and removed the tracks and materials, and then attempted to 

transfer its property interest to Rails to Trails, Inc., a nonprofit that converted unused rail corridors into public trails. 

666 N.E.2d at 960. Landowners filed a class-action suit alleging that Conrail’s easements had extinguished upon Conrail’s 

abandonment of the line, such that any rights of way reverted 

back to the landowners. Id. at 960–961. The court concluded 

that because Conrail held only a right-of-way easement in the 

railroad corridor, Conrail’s abandonment of the tracks triggered an extinguishment of the railroad’s interest, with ownership reverting to the fee simple owner. Id. at 961–63. 

In Howard, another “rails to trails” case, the Indiana Supreme Court responded to a certified question from the Court 

of Federal Claims and explained that “[t]he extent of the easement interest is determined by the purpose served by the 

easement.” 964 N.E.2d at 781 (citing McCauley v. Harris, 928 

N.E.2d 309, 314 (Ind. Ct. App. 2010); N.Y. Cent. R.R. Co. v. 

Yarian, 39 N.E.2d 604, 606 (Ind. 1942)). The Indiana Supreme 

Court held that the original purpose of the easement at issue 

in Howard was the transportation of goods through operation 

of a railroad line, and thus, the easement could not be “recast 

for use as a public recreational trail without exceeding the 

scope of the easement and infringing the rights of the landowners.” Id. at 783; see also id. at 784 (“The transformation of a 

line of railway to a public trail imputes a different purpose. 

The operation of a railroad line is a commercial enterprise of 

transport. Whereas as [sic] public trail is an activity of recreation, not transportation.”) (internal quotation marks and citation omitted). 
No. 15-3580 13

The Wedemeyers claim that the original purpose of the 

track at issue in this case was for mainline rail service between 

Indianapolis and Decatur; thus, they contend, the shift in use 

to auxiliary track ought to extinguish the easement. However, 

the operative 1876 deed conveying the rail line states that its 

purpose is “for the right of way and the use and purpose of 

the construction of the Railway of said Company, and the use 

and purpose of the track and roadway of said Company.” This 

broad language is not limited to mainline or common-carrier

service, and the current use of the line by CSX and the grain 

shipper for loading, unloading, and storing cars on the track 

falls within the scope of the easement. Moreover, as CSX correctly points out, both Lewellen and Howard dealt with reversionary property interests after all railroad operations had 

ceased and the tracks had been completely abandoned. See 

Lewellen, 666 N.E.2d at 960; Howard, 964 N.E.2d at 780. In contrast, the parties in our case agree that CSX has continued to 

use the track since ending common-carrier service.

As CSX has not lost its easement, and the declaratory judgment was limited to determining the nature of CSX’s and the 

class members’ property interests, the Wedemeyers’ state-law 

claims are not contractual in nature. Because the Wedemeyers 

seek to control (terminate) use of the track in question

through their lawsuit, their claims are preempted under the 

ICCTA. See, e.g., Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521 

(1992) (“[State] regulation can be as effectively exerted 

through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct 

and controlling policy.” (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959))); Thomas Tubbs, Tr. of the 

Thomas Tubbs Revocable Trust & Individually, & Dana Lynn 
14 No. 15-3580

Tubbs, Tr. of the Dana Lynn Tubbs Revocable Trust & Individually—Petition for Declaratory Order, FD 35792, 2014 WL 

5508153, at *4 (S.T.B. Oct. 29, 2014) (“damages awarded under 

state tort laws can manage or regulate a railroad as effectively 

as the application of any other type of state statute or regulation”); Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1146 (8th Cir. 

2015) (holding that ICCTA preempted state-law tort claims, 

including trespass claim, that burdened rail transportation); 

Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 (11th Cir. 2010) 

(“The ICCTA expressly preempts state remedies involving the 

operation of the side track. Therefore, we will not permit landowners to circumvent that Congressional decision through 

state law nuisance claims.”).

The Wedemeyers attempt one more dodge of the ICCTA. 

They cite to The Atchison, Topeka & Santa Fe Ry. Co.—Abandonment Exemption—in Lyon Cty., KS, No. AB-52, 1991 WL 120344 

(I.C.C. June 11, 1991), for the proposition that upon CSX’s 

abandonment of the track, the track was no longer “a rail 

line,” regardless of whether it was still in active use or not, 

and thus fell outside of the STB’s jurisdiction. The Wedemeyers did not make this argument in their opening brief, and 

thus it is forfeited. See, e.g., United States v. Alhalabi, 443 F.3d 

605, 611 (7th Cir. 2006) (arguments raised for the first time in 

reply briefs are waived).8

 8

Moreover, § 32-23-11-6(b) of the Indiana Code provides, “A right-of-way 

is not considered abandoned if: (1) rail service continues on the right-ofway; or (2) the railroad has entered into an agreement preserving rail service on the right-of-way.” Ind. Code. § 32-23-11-6(b). CSX’s lease agreement with the grain shipper and the resultant continued use of the track 

for storage, loading, and so forth, satisfies both provisions of § 32-23-11-

6(b), which the Wedemeyers fail to address. Numerous cases also clarify 
No. 15-3580 15

Because the Wedemeyers seek to eject CSX from land with 

active, ongoing rail operations, preemption obtains. While the

Wedemeyers may present their case before the Surface Transportation Board, they cannot do so here. Consequently, we 

need not address the merits of CSX’s additional and alternative arguments based on the statute of limitations or equitable 

doctrines. 

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s 

judgment. 

 

that only complete abandonment (that is, cessation of operations) results 

in a track segment no longer being a rail line. See, e.g., Common Carrier Status of States, State Agencies & Instrumentalities, & Political Subdivisions, 363 

I.C.C. 132, 135, 135 n.2 (I.C.C. 1980) (explaining that “[w]hen a rail line has 

been fully abandoned, it is no longer [a] rail line,” but also that a line is 

only “fully abandoned after ... [among other things] operations have 

ceased”); Birt v. Surface Transp. Bd., 90 F.3d 580, 585 (D.C. Cir. 1996) (“several concrete actions ... may indicate an intent to abandon,” including 

“cessation of operations,” “salvage of the track and track materials,” or 

“relinquishment of control over the right-of-way”) (citation omitted). And 

we have held that auxiliary tracks still in operation remain within the 

STB’s exclusive jurisdiction. See United Transp. Union-Ill. Legislative Bd. v. 

Surface Transp. Bd., 183 F.3d 606, 612 (7th Cir. 1999) (“transactions involving spur track do not call for the [STB’s] authorization ... but the Board 

nonetheless retains exclusive jurisdiction under § 10501(b)(2)”).