Hornish Trust v. King County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THOMAS E. HORNISH AND SUZANNE No. 16-35486
J. HORNISH JOINT LIVING TRUST;
TRACY NEIGHBORS; BARBARA D.C. No.
NEIGHBORS; ARUL MENEZES; 2:15-cv-00284-
LUCRETIA VANDERWENDE; HERBERT MJP
MOORE; ELYNNE MOORE; EUGENE
MOREL; ELIZABETH MOREL; LAKE
SAMMAMISH 4257 LLC, OPINION
Plaintiffs-Appellants,

v.

KING COUNTY, a home rule charter
county,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Senior District Judge, Presiding

Argued and Submitted June 14, 2018
Seattle, Washington

Filed August 3, 2018
2 HORNISH JOINT LIVING TRUST V. KING COUNTY

Before: MILAN D. SMITH, JR. and PAUL J.
WATFORD, Circuit Judges, and DOUGLAS L. RAYES, *
District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Property Law

The panel affirmed the district court’s summary
judgment in favor of King County, Washington, quieting
title to a rail corridor that the Surface Transportation Board
had “railbanked” pursuant to the Trails Act.

The panel held that the action arose under federal law,
and the panel had jurisdiction pursuant to 28 U.S.C. § 1331,
because the plaintiffs’ state law claim necessarily raised a
federal issue that was actually disputed, substantial, and
capable of resolution in federal court without disrupting any
congressionally approved federal-state balance.

The panel held that the plaintiffs, landowners whose
properties abutted the rail corridor’s boundaries, lacked both
Article III and statutory standing to bring their claim for a
declaratory judgment pursuant to Wash. Rev. Code
§ 7.24.020 because they lacked any property interests in the

*
The Honorable Douglas L. Rayes, United States District Judge for
the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 HORNISH JOINT LIVING TRUST V. KING COUNTY 3

corridor. The panel concluded that the County owned one
portion of the corridor in fee. In addition, the Trails Act
preserved the railroad easement and created a new easement
for trail use, and both easements were conveyed to King
County. The panel concluded that Washington’s “centerline
presumption” did not apply.

The panel held that the district court properly granted
summary judgment to and quieted title in King County
because the county possessed the railroad easement and the
recreational easement. The panel concluded that the
easement was 100 feet wide, with certain exceptions. The
panel denied plaintiffs’ motion to supplement the record
with new evidence regarding the width of the corridor.

COUNSEL

Steven Wald (argued), Stewart Wald & McCulley LLC, St.
Louis, Missouri; Thomas S. Stewart and Elizabeth Gepford
McCulley, Stewart Wald & McCulley LLC, Kansas City,
Missouri; for Plaintiffs-Appellants.

David J. Hackett (argued), King County Prosecuting
Attorney’s Office, Seattle, Washington; Mallory L.B. Satre
and Emily J. Harris, Corr Cronin Michelson Baumgardner
Fogg & Moore LLP, Seattle, Washington; for Defendant-
Appellee.

Patrick J. Schneider, Philip E. Paine, and Beth A. Clark,
Foster Pepper PLLC, Seattle, Washington, for Amicus
Curise BNSF Railway Company.

James E. Breitenbucher, Riddell Williams P.S., Seattle,
Washington, for Amicus Curiae Puget Sound Energy Inc.
4 HORNISH JOINT LIVING TRUST V. KING COUNTY

Mark C. Zebrowski, Morrison & Foerster LLP, San Diego,
California; David P. Thoreson, Morrison & Foerster LLP,
San Francisco, California; Andrea Foster, General Counsel,
Rails to Trails Conservancy Inc., Washington, D.C.; for
Amicus Curiae Rails to Trails Conservancy.

Richard M. Stephens, Stephens & Klinge LLP, Bellevue,
Washington, for Amicus Curiae Sammamish Home Owners.

OPINION

M. SMITH, Circuit Judge:

After the Surface Transportation Board (the STB)
“railbanked” the portions of the Eastside Rail Corridor (the
Corridor) adjacent to or bisecting Plaintiffs-Appellants’
residential lots, pursuant to the National Trails System Act
Amendments of 1983 (the Trails Act), 16 U.S.C. § 1247 et
seq., Plaintiffs-Appellants filed suit in federal court seeking
a declaration of their property rights in the Corridor.
Plaintiffs-Appellants disputed the nature and scope of
Defendant-Appellee King County’s railroad easement, and
the Corridor’s width. In response, King County filed
counterclaims asking the court to (1) declare that the Trails
Act preserved the full scope of the original railroad
easement, and that the Corridor’s width is 100 feet, and
(2) quiet title to the Corridor in King County. Both sides
moved for summary judgment. The district court denied
summary judgment to Plaintiffs-Appellants, dismissed their
claims with prejudice, and granted summary judgment to,
and quieted title to the Corridor in, King County. Plaintiffs-
Appellants timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.
 HORNISH JOINT LIVING TRUST V. KING COUNTY 5

FACTUAL AND PROCEDURAL BACKGROUND

I. The Origins of the Corridor & Plaintiffs-Appellants’
Property Interests

In 1887, the Seattle, Lake Shore & Eastern Railway
Company (SLS&E), which later became part of BNSF
Railway Company (BNSF, and together with SLS&E, the
Railroad), began to construct the Corridor along the eastern
shoreline of Lake Sammamish. The SLS&E obtained the
land that it needed for the Corridor through various means,
which gave the SLS&E a collection of railroad easements
and fee simple properties. See Beres v. United States,
104 Fed. Cl. 408, 412 (2012) (hereinafter Beres III).

All Plaintiffs-Appellants are landowners whose
properties abut the Corridor’s boundaries (the precise
location of which the parties dispute). Plaintiff-Appellant
the Thomas E. Hornish and Suzanne J. Hornish Joint Living
Trust (Plaintiff-Appellant Hornish) owns property adjacent
to a portion of the Corridor that SLS&E obtained through a
May 9, 1887 quitclaim deed executed by homesteader
William Hilchkanum and his wife. Hilchkanum later sold
the remainder of his property, and some part of that
remainder interest is now owned by Plaintiff-Appellant
Hornish.

Plaintiffs-Appellants Tracy and Barbara Neighbors, Arul
Menezes and Lucretia Vanderwende, Lake Sammamish
4257 LLC, Herbert and Elynne Moore, and Eugene and
Elizabeth Morel (the Non-Hornish Plaintiffs-Appellants)
own properties that are adjacent to other portions of the
Corridor. The SLS&E completed construction of the
Corridor’s tracks in March 1888, and the Northern Pacific
Railroad conveyed its property to Samuel Middleton the
6 HORNISH JOINT LIVING TRUST V. KING COUNTY

following year. The Non-Hornish Plaintiffs-Appellants’
chains of title all originate with Middleton.

II. The Railbanking Process

In 1997, BNSF conveyed all of its ownership interests in
the Corridor to The Land Conservancy of Seattle and King
County (TLC) through a recorded quitclaim deed. On June
11, 1997, TLC initiated the “railbanking” process by
petitioning the STB for an exemption to allow TLC’s
abandonment of the Corridor for active rail service. See
Land Conservancy of Seattle & King Cty.-Abandonment
Exemption-in King Cty., WA, No. AB-508X, 1997 WL
359085, at *1 (S.T.B. June 23, 1997). As part of its petition,
TLC provided King County’s Statement of Willingness to
Assume Financial Responsibility as the interim trail sponsor
under the Trails Act. Burlington N. & Santa Fe Ry. Co.-
Abandonment Exemption-in King Cty., Wa, No. AB-6 (Sub-
No. 380X), 1998 WL 638432, at *1 (S.T.B. Sept. 16, 1998).
The STB granted the exemption on May 13, 1998. Then, in
September of 1998, the STB issued a Notice of Interim Trail
Use (NITU) to facilitate railbanking and interim trail use.

Subsequently, TLC and King County entered into an
agreement formally designating King County as the trail
sponsor. The agreement also conveyed to King County all
of TLC’s ownership interests in the Corridor through a
recorded quitclaim deed, which described the precise
property that was being conveyed. King County then
constructed a soft-surface hiking and biking trail in the
Corridor. More recently, King County has prepared to
construct a paved trail.
 HORNISH JOINT LIVING TRUST V. KING COUNTY 7

III. Prior Proceedings

On February 25, 2015, several of Plaintiffs-Appellants,
among others, filed suit to obtain a declaration of their rights
with regard to the Corridor and to quiet their title in the
Corridor. King County moved to dismiss the complaint for
lack of standing, arguing that the Plaintiffs-Appellants had
failed to demonstrate that they had any ownership interest in
the Corridor. While this motion was pending, the Plaintiffs-
Appellants sought leave to file a proposed amended
complaint.

On June 5, 2015, the district court granted King County’s
motion to dismiss, and denied leave to file the proposed
amended complaint. The court determined that amendment
would be futile because the proposed amended complaint did
not remedy the standing defects of the original complaint.
However, the court gave the Plaintiffs-Appellants leave to
file a different amended complaint that would address the
standing problem. Plaintiffs-Appellants did so, filing the
Amended Complaint (AC). King County then answered and
brought quiet title and declaratory judgment counterclaims.

Both sides then filed motions for summary judgment.
On April 20, 2016, the district court denied Plaintiffs-
Appellants’ summary judgment motion, dismissed
Plaintiffs-Appellants’ claims with prejudice, and granted
summary judgment to King County with regard to its
declaratory judgment and quiet title counterclaims.
Plaintiffs-Appellants timely appealed.

STANDARD OF REVIEW

We review the district court’s grant of summary
judgment de novo. King County v. Rasmussen, 299 F.3d
1077, 1083 (9th Cir. 2002). We “must determine, viewing
8 HORNISH JOINT LIVING TRUST V. KING COUNTY

the evidence in the light most favorable to the nonmoving
party, whether there are any genuine [disputes] of material
fact and whether the district court correctly applied the
relevant substantive law. All reasonable inferences from the
evidence must be drawn in favor of the nonmoving party.”
Id. (citation omitted).

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. § 1331.
28 U.S.C. § 1331 authorizes federal jurisdiction over all
civil actions “arising under” federal law. The Supreme
Court “has found that statutory term satisfied in either of two
circumstances. Most directly, and most often, federal
jurisdiction attaches when federal law creates the cause of
action asserted.” Merrill Lynch, Pierce, Fenner & Smith Inc.
v. Manning, 136 S. Ct. 1562, 1569 (2016). The parties agree
that such is not the case here. However, “even when ‘a claim
finds its origins’ in state law, there is ‘a special and small
category of cases in which arising under jurisdiction still
lies.’” Id. (quoting Gunn v. Minton, 568 U.S. 251, 258
(2013)). This case falls within the latter category.

As the Supreme Court has explained, “a federal court has
jurisdiction of a state-law claim if it ‘necessarily raises a
stated federal issue, actually disputed and substantial, which
a federal forum may entertain without disturbing any
congressionally approved balance’ of federal and state
power.” Manning, 136 S. Ct. at 1570 (alteration omitted)
(quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g
& Mfg., 545 U.S. 308, 314 (2005)). “That is, federal
jurisdiction over a state law claim will lie if a federal issue
is: (1) necessarily raised, (2) actually disputed,
(3) substantial, and (4) capable of resolution in federal court
without disrupting the federal-state balance approved by
Congress.” Gunn, 568 U.S. at 258. Jurisdiction is proper
 HORNISH JOINT LIVING TRUST V. KING COUNTY 9

“[w]here all four of these requirements are met” because in
such a case, “there is a ‘serious federal interest in claiming
the advantages thought to be inherent in a federal forum,’
which can be vindicated without disrupting Congress’s
intended division of labor between state and federal courts.”
Id. (quoting Grable, 545 U.S. at 313). The Supreme Court
“ha[s] often held that a case ‘arose under’ federal law”—
meeting these criteria—“where the vindication of a right
under state law necessarily turned on some construction of
federal law.” Franchise Tax Bd. of State of Cal. v. Constr.
Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 9 (1983)
(citing Smith v. Kansas City Title & Tr. Co., 255 U.S. 180
(1921); Hopkins v. Walker, 244 U.S. 486 (1917)); see also
14B Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 3722 (4th ed. 2016) (“An important
corollary to the well-pleaded complaint rule is that the
essential federal element of the plaintiff’s complaint must be
supported under one construction of federal law and defeated
under another.”).

Plaintiffs-Appellants argue that the federal courts lack
jurisdiction because a Trails Act issue arises only as a
defense. They liken this case to Shulthis v. McDougal,
225 U.S. 561 (1912), wherein the Court held that it had no
jurisdiction over a quiet title action simply because one party
had “derived his title under an act of Congress.” Id. at 570.
Plaintiffs-Appellants also posit that this case is
distinguishable from Rasmussen because there, King County
was the plaintiff alleging that its rights derived from federal
law, 299 F.3d at 1082, while here, King County is a
defendant and its assertion of rights under federal law arises
only as a defense. Finally, Plaintiffs-Appellants argue that
the Trails Act’s application is not “actually disputed.”
10 HORNISH JOINT LIVING TRUST V. KING COUNTY

These attempts to recharacterize the AC’s plain
invocation of the Trails Act fail. Certainly, we agree with
Plaintiffs-Appellants that our jurisdictional analysis is
limited by “the longstanding well-pleaded complaint rule,”
which provides that “a suit ‘arises under’ federal law ‘only
when the plaintiff’s statement of his own cause of action
shows that it is based upon federal law,’” and which does not
permit a finding of jurisdiction “predicated on an actual or
anticipated defense,” or “upon an actual or anticipated
counterclaim.” Vaden v. Discover Bank, 556 U.S. 49, 60
(2009) (alteration omitted) (quoting Louisville & Nashville
R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). We disagree,
however, that federal claims in this case arise only from
Defendants-Appellees’ defenses and counterclaims.

Grable itself is instructive in this regard. There, the
plaintiff had filed a quiet title action in Michigan state court,
alleging that it had superior title to certain real property that
had been seized by the Internal Revenue Service (IRS)
because the IRS had failed to give the plaintiff notice of the
seizure, as required by a federal tax statute. Grable, 545 U.S.
at 311. The defendant had then “removed the case to Federal
District Court as presenting a federal question, because the
claim of title depended on the interpretation of the notice
statute in the federal tax law.” Id. The Supreme Court
affirmed that the “case warrant[ed] federal jurisdiction.” Id.
at 314. The Court held that because the plaintiff had
“premised its superior title claim on a failure by the IRS to
give it adequate notice, as defined by federal law,” the
question of whether the plaintiff had been “given notice
within the meaning of the federal statute” was necessarily
raised as “an essential element of [the plaintiff’s] quiet title
claim.” Id. at 314–15. Additionally, “the meaning of the
federal statute [was] actually in dispute,” because it was “the
only legal or factual issue contested in the case,” and “an
 HORNISH JOINT LIVING TRUST V. KING COUNTY 11

important issue of federal law that sensibly belongs in a
federal court.” Id. at 315. Finally, the Court explained that
“because it [would] be the rare state title case that raises a
contested matter of federal law, federal jurisdiction to
resolve genuine disagreement over federal tax title
provisions will portend only a microscopic effect on the
federal-state division of labor.” Id.

A. Requirements One and Two

Applying Grable’s reasoning to this case, we hold that
we have jurisdiction. We note that a federal issue is both
“necessarily raised” on the face of the AC, and “actually
disputed” by the parties. As described above, Plaintiffs-
Appellants have alleged one claim in the AC: Pursuant to
Revised Code of Washington section 7.24.020, 1 Plaintiffs-
Appellants seek “a declaration of rights that the original
source conveyance to the railroad was an easement and other
interests acquired by the railroad were prescriptive
easements, that the easements were for railroad purposes
only, and that Plaintiffs-Appellants are the fee owners of the
railroad right-of-way at issue, and King County only
acquired a surface easement for a hiking and biking trail with
the possible reactivation of a railroad pursuant to the Trails
Act.”

Thus, Plaintiffs-Appellants have petitioned us to answer
at least one “question of construction or validity,” Wash.

1
This section provides that “[a] person interested under a deed, will,
written contract or other writings constituting a contract, or whose rights,
status or other legal relations are affected by a statute, municipal
ordinance, contract or franchise, may have determined any question of
construction or validity arising under the instrument, statute, ordinance,
contract or franchise and obtain a declaration of rights, status or other
legal relations thereunder.” Wash. Rev. Code § 7.24.020.
12 HORNISH JOINT LIVING TRUST V. KING COUNTY

Rev. Code § 7.24.020, that necessarily implicates the Trails
Act: Specifically, they have asked us to declare that “King
County only acquired a surface easement for a hiking and
biking trail with the possible reactivation of a railroad
pursuant to the Trails Act.” This petition relies on
allegations (1) that “[t]he Trails Act authorizes the STB to
preserve railroad corridors or rights-of-way not currently in
use for train service for possible future rail use by converting
those rights-of-way into recreational trails,” and (2) that
“King County, through the Quit Claim Deed from BNSF,
acquired an easement over the surface of the right-of-way
which, pursuant to the Trails Act, is now an easement for a
hiking and biking trail with the possible reactivation of a
railroad.” Defendants-Appellees dispute these facts, arguing
that King County acquired a full railway easement through
the Quit Claim Deed, which encompasses far more than a
surface right of-way. The resolution of this dispute turns on
an interpretation of the Trails Act, because deciding the
scope of King County’s rights pursuant to the Quit Claim
Deed will require this court to determine whether the Trails
Act creates, supplements, or replaces any previously existing
railroad easement. In other words, “the vindication of
[Plaintiffs-Appellants’] right[s] under state law necessarily
turn[s] on some construction of federal law.” Franchise Tax
Bd., 463 U.S. at 9. Thus, the first two Grable requirements
are satisfied in this case. See Gunn, 568 U.S. at 258.

B. Requirements Three and Four

Grable’s latter two requirements are also satisfied: The
federal issue is both “substantial” and “capable of resolution
in federal court without disrupting the federal-state balance
approved by Congress.” Id. For an issue to be “substantial,”
“it is not enough that the federal issue be significant to the
particular parties in the immediate suit . . . . The
 HORNISH JOINT LIVING TRUST V. KING COUNTY 13

substantiality inquiry under Grable looks instead to the
importance of the issue to the federal system as a whole.”
Id. at 260. In Grable, for example, the Court “emphasized
the Government’s ‘strong interest’ in being able to recover
delinquent taxes through seizure and sale of property, which
in turn ‘required clear terms of notice to allow buyers to
satisfy themselves that the Service has touched the bases
necessary for good title’” and then found that the
“Government’s ‘direct interest in the availability of a federal
forum to vindicate its own administrative action’ made the
question ‘an important issue of federal law that sensibly
belonged in a federal court.’” Id. at 260–61 (alterations
omitted) (quoting Grable, 545 U.S. at 315).

The Supreme Court has already spoken regarding the
importance of the Trails Act, and the federal-state balance it
struck. The Court has deemed the Trails Act “the
culmination of congressional efforts to preserve shrinking
rail trackage by converting unused rights-of-way to
recreational trails.” Preseault v. Interstate Commerce
Comm’n, 494 U.S. 1, 5 (1990) (hereinafter Preseault I). The
Court noted that “[t]wo congressional purposes [were]
evident” with regard to the Trails Act. Id. at 17. On the one
hand, “Congress intended to ‘encourage the development of
additional trails’ and to ‘assist recreational users by
providing opportunities for trail use on an interim basis.’”
Id. (alteration omitted) (quoting H.R. Rep. No. 98-28, at 8–
9 (1983); S. Rep. No. 98-1, at 9–10 (1983) (same)); see also
16 U.S.C. § 1241(a) (“[The Trails Act] promote[s] the
preservation of, public access to, travel within, and
enjoyment and appreciation of the open-air, outdoor areas
and historic resources of the Nation . . . .”). On the other
hand, Congress also “intended ‘to preserve established
railroad rights-of-way for future reactivation of rail service,
to protect rail transportation corridors, and to encourage
14 HORNISH JOINT LIVING TRUST V. KING COUNTY

energy efficient transportation use.’” Preseault I, 494 U.S.
at 18 (quoting H.R. Rep. No. 98-28, at 8; S. Rep. No. 98-1,
at 9); see also 16 U.S.C. § 1247(d). “[E]ven if no future rail
use for [a rail corridor] is currently foreseeable,” Congress
determined “that every line is a potentially valuable national
asset that merits preservation.” Preseault I, 494 U.S. at 19.

Thus, the Government has a strong interest in both
facilitating trail development and preserving established
railroad rights-of-way for future reactivation of rail service.
And, because Congress acted in the Trails Act to preclude
the operation of state laws regarding abandonment, and
placed supervision of the “railbanking” and reactivation
processes in the hands of the STB, see 16 U.S.C. § 1247(d);
49 U.S.C. § 10501(b) (express preemption of state
abandonment regulation); 49 U.S.C. § 10903 (STB authority
over abandonment), the Government also has a “direct
interest in the availability of a federal forum to vindicate its
own administrative action,” such that the scope of the Trails
Act is “an important issue of federal law that sensibly
belongs in a federal court.” Grable, 545 U.S. at 315. We
therefore conclude that we have jurisdiction because this
case satisfies all four Grable requirements. 2

2
We note that our jurisdiction is also supported by our court’s
precedents regarding declaratory judgment claims. In a line of cases
beginning with Janakes v. United States Postal Service, 768 F.2d 1091
(9th Cir. 1985), we have adhered to the rule that if “the declaratory
judgment defendant could have brought a coercive action in federal court
to enforce its rights, then [the court has] jurisdiction,” so long as that
coercive action would “arise under” federal law. Id. at 1093; see also,
e.g., Chevron U.S.A. Inc. v. M & M Petroleum Servs., Inc., 658 F.3d 948,
951 (9th Cir. 2011); Standard Ins. Co. v. Saklad, 127 F.3d 1179, 1181
(9th Cir. 1997) (“A person may seek declaratory relief in federal court if
the one against whom he brings his action could have asserted his own
 HORNISH JOINT LIVING TRUST V. KING COUNTY 15

ANALYSIS

Because the parties filed cross motions for summary
judgment, we will consider each motion in turn. First, we
will review the district court’s denial of summary judgment
to Plaintiffs-Appellants and dismissal of the AC for lack of
standing. We will then consider the merits of Defendants-
Appellees’ motion.

I. Plaintiffs-Appellants Lack Standing

As noted, Plaintiffs-Appellants’ AC seeks a declaratory
judgment pursuant to Revised Code of Washington section
7.24.020. The district court found that Plaintiffs-Appellants
lacked both Article III and statutory standing to bring this
claim, and we agree.

These standing inquiries overlap. “A plaintiff seeking
relief in federal court must establish the three elements that
constitute the ‘irreducible constitutional minimum’ of
Article III standing . . . .” Friends of Santa Clara River v.

rights there.”). “In other words, in a sense [the court] can reposition the
parties in a declaratory relief action by asking whether [it] would have
jurisdiction had the declaratory relief defendant been a plaintiff seeking
a federal remedy.” Standard Ins. Co., 127 F.3d at 1181. Here, we
already have had the opportunity to address the propriety of jurisdiction
in a coercive action brought by Defendants-Appellees. In Rasmussen,
King County was the plaintiff and had alleged “that it had a legal right
to the strip of land in question even if the original deed conveyed only
an easement” because of 16 U.S.C. § 1247(d). 299 F.3d at 1082. We
held that “there was a federal question on the face of the well-pleaded
complaint,” such that the court had jurisdiction to hear the case. Id.
Thus, we have jurisdiction over the instant case on the alternative ground
that we “would have jurisdiction had the declaratory relief defendant
been a plaintiff seeking a federal remedy.” Standard Ins. Co., 127 F.3d
at 1181.
16 HORNISH JOINT LIVING TRUST V. KING COUNTY

U.S. Army Corps of Eng’rs, 887 F.3d 906, 918 (9th Cir.
2018) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). Specifically, the plaintiff must show

(1) it has suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative,
that the injury will be redressed by a
favorable decision.

Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir.
2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).

Similarly, to have standing to sue under Section
7.24.020, a plaintiff must show there is a “justiciable
controversy.” To-Ro Trade Shows v. Collins, 27 P.3d 1149,
1153 (Wash. 2001). Washington courts have

defined a justiciable controversy as “(1) an
actual, present and existing dispute, or the
mature seeds of one, as distinguished from a
possible, dormant, hypothetical, speculative,
or moot disagreement, (2) between parties
having genuine and opposing interests,
(3) which involves interests that must be
direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a
judicial determination of which will be final
and conclusive.”

Id. (alteration omitted) (quoting Diversified Indus. Dev.
Corp. v. Ripley, 514 P.2d 137, 139 (Wash. 1973)). “Inherent
 HORNISH JOINT LIVING TRUST V. KING COUNTY 17

in these four requirements are the traditional limiting
doctrines of standing, mootness, and ripeness, as well as the
federal case-or-controversy requirement.” Id.; see also Five
Corners Family Farmers v. State, 268 P.3d 892, 896 n.2
(Wash. 2011) (noting that “justiciable controversy”
requirements overlap with requirements for standing). In
particular, the “third justiciability requirement of a direct,
substantial interest in the dispute encompasses the doctrine
of standing,” which requires a party to “show, in addition to
‘sufficient factual injury,’ that ‘the interest sought to be
protected is arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.’” To-Ro Trade Shows, 27 P.3d at
1154–55 (alteration omitted) (quoting Seattle Sch. Dist. No.
1 v. State, 585 P.2d 71, 82 (Wash. 1978)).

Thus, to have Article III and statutory standing to
challenge King County’s interest in the Corridor, Plaintiffs-
Appellants must show that Defendants-Appellees’
possession or use of the Corridor injured Plaintiffs-
Appellants’ interests therein. Because we find for the
reasons following that Plaintiffs-Appellants have no
property interests in the Corridor, we hold that they cannot
allege any injury to such interests, and therefore lack
standing.

A. The County Owns the Portion of the Corridor
Adjacent to the Hornish Property in Fee

The parties do not dispute the contents of the
Hilchkanum deed, from which the Hornish property is
derived. Rather, they dispute whether the deed conveyed a
railroad right of way in fee simple or through an easement.

This question has already been resolved by our court. In
Rasmussen, we held that the Hilchkanum deed conveyed to
18 HORNISH JOINT LIVING TRUST V. KING COUNTY

the railroad a fee simple interest in the “right of way strip.”
299 F.3d at 1080, 1088. We analyzed the deed with regard
to the factors outlined in Brown v. State, 924 P.2d 908, 911
(Wash. 1996), and found them to confirm that the deed’s
language and the contracting parties’ behavior evinced an
intent to convey a fee simple interest. Rasmussen, 299 F.3d
at 1084–88.

Subsequently, an intermediary Washington court found
the same. In Ray v. King County, 86 P.3d 183 (Wash. Ct.
App. 2004), the Washington Court of Appeals confirmed
that its analysis of the Brown factors “demonstrate[d] that
Hilchkanum conveyed the right of way to the Railway in fee,
not as an easement.” Id. at 192. The Washington Supreme
Court declined review. Ray v. King County, 101 P.3d 421
(2004).

We are bound by these decisions. The Rasmussen
panel’s analysis of the Hilchkanum deed was central to its
affirmance of the district court’s grant of summary judgment
to King County, see Rasmussen, 299 F.3d at 1088 (holding
that because the deed conveyed property in fee simple,
“King County, as the Railway’s successor, possesse[d] a fee
simple in the strip of land,” and the district court was
affirmed), and we “treat reasoning central to a panel’s
decision as binding later panels,” Garcia v. Holder, 621 F.3d
906, 911 (9th Cir. 2010) (quoting Sanchez v. Mukasey,
521 F.3d 1106, 1110 (9th Cir. 2008)). Moreover, “[i]n the
absence of any decision on this issue from the [Washington]
Supreme Court, we are bound by [Ray], as the ruling of the
highest state court issued to date.” Poublon v. C.H.
 HORNISH JOINT LIVING TRUST V. KING COUNTY 19

Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 2017) (citing
West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940)). 3

Plaintiffs-Appellants argue that these decisions are no
longer good law because they rely on Brown, which created
a multifactor test that the Washington Supreme Court
subsequently modified in Kershaw Sunnyside Ranches, Inc.
v. Yakima Interurban Lines Association, 126 P.3d 16, 25–26
(Wash. 2006). Plaintiffs-Appellants note that the only court
to have analyzed the Hilchkanum deed after Kershaw, the
U.S. Court of Federal Claims, held that Rasmussen and Ray
were wrongly decided in light of Kershaw, and that the
Hilchkanum deed conveyed only an easement to the railroad.
See Beres III, 104 Fed. Cl. at 424–32; Beres v. United States,
97 Fed. Cl. 757, 784–92 (2011) (hereinafter Beres II).

However, the Washington Supreme Court itself has
demonstrated a belief that Kershaw did not “undercut the
theory or reasoning” underlying Rasmussen and Ray “in
such a way that the cases are clearly irreconcilable.” Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
First, in Kershaw itself, the court affirmed the correctness of
Ray. The court noted that “while the [Hilchkanum] deed did
include the phrase ‘right of way’ it did so only to the extent
that it stated it was conveying a ‘right of way strip.’ The Ray
court thus found no presumption in favor of an easement and
applied the Brown factors to reach its conclusion that a fee
interest was transferred.” Kershaw, 126 P.3d at 25 n.11.
This, the Kershaw court continued, distinguished the
3
Defendants-Appellees suggest that “this is particularly true where,
as in Ray, the Washington Supreme Court has denied review.” However,
the authority that they cite for this proposition, Intex Plastics Sales Co.
v. United Nat’l Ins. Co., 23 F.3d 254, 257 n.1 (9th Cir. 1994), is no longer
good law in this circuit, see Ajir v. Exxon Corp., 185 F.3d 865 n.3 (9th
Cir. 1999) (mem.).
20 HORNISH JOINT LIVING TRUST V. KING COUNTY

Hilchkanum deed from the deed at issue in Kershaw, which
“specifically established the purpose of the grant when it
stated the land was ‘to be used by the Railway as a right of
way for a railway’” and thereby created “a presumption in
favor of an easement which was not present in Ray.” Id.
(alteration omitted). Second, the Washington Supreme
Court declined the U.S. Court of Claims’ certification
request seeking clarification of Brown’s application, on the
basis that no clarity was lacking. Rather, the court was “of
the view that, in light of existing precedent such as Brown v.
State, 924 P.2d 908 (Wash. 1996) and Ray v. King County,
86 P.3d 183, review denied, 101 P.3d 421 (Wash. 2004), the
questions posed by the federal court are not ‘questions of
state law which have not been clearly determined.’” Beres
v. United States, 92 Fed. Cl. 737, 746 (2010) (hereinafter
Beres I) (alterations omitted); see also Beres II, 97 Fed. Cl.
at 786. This is persuasive evidence that the Washington
Supreme Court believes Kershaw created no “clearly
irreconcilable” conflict with Ray.

Moreover, even if Kershaw did modify the relevant
analytical method, we would be unable to reach a different
result than we did in Rasmussen. Kershaw specifies that a
presumption in favor of an easement is created when a deed
“uses the term ‘right of way’ as a limitation or to define the
purpose of the grant, [which] operates to ‘clearly and
expressly limit or qualify the interest conveyed.’” Kershaw,
126 P.3d at 22 (alterations omitted) (quoting Brown,
924 P.2d at 912); see also Beres II, 97 Fed. Cl. at 785. The
Beres court found that the Hilchkanum deed had used the
“right of way” language in this way in its granting clause,
such that the Kershaw easement presumption applied. Beres
III, 104 Fed. Cl. at 430; Beres II, 97 Fed. Cl. at 785.
 HORNISH JOINT LIVING TRUST V. KING COUNTY 21

But our court and the Ray court found differently. In
Rasmussen, we characterized the granting clause language
that the Beres court deemed limiting under Kershaw—
evincing the parties’ expectation “that the right of way
would be used to construct and operate a railroad”—as mere
“precatory language” that “did not actually condition the
conveyance on such use.” 299 F.3d at 1086. And, in
Kershaw, the Washington Supreme Court noted that the
deed then before it “specifically established the purpose of
the grant when it stated the land was ‘to be used by [the
Railway] as a right of way for a railway’” and thereby
created “a presumption in favor of an easement which was
not present in Ray.” 126 P.3d at 25 n.11 (alteration in
original) (emphasis added). We are bound by this reasoning.
Thus, we must hold that the “right of way” language in the
granting clause is not limiting, and does not give rise to the
Kershaw easement presumption. This leads us to hold that
King County owns the portion of the Corridor adjacent to the
Plaintiff-Appellant Hornish’s property in fee, and that
Plaintiff-Appellant Hornish has no property interest therein.

B. The Trails Act Preserved the Railroad Easement
and Created a New Easement for Trail Use, Both
of Which Were Conveyed to King County

The parties agree that because no original deeds were
introduced into evidence for the portions of the Corridor
adjacent to which the Non-Hornish Plaintiffs-Appellants
own land, the railroad possesses a prescriptive easement
with regard to those portions. The parties disagree, however,
as to the current status of that easement. Plaintiffs-
Appellants argue that when the Corridor was railbanked,
“the railroad purposes easement [was] converted to a new
‘railbanked’ easement/trail easement that replaces the
former railroad purposes easement with a new trail easement
22 HORNISH JOINT LIVING TRUST V. KING COUNTY

with the potential reactivation of the railroad easement.”
The railroad easement is converted into a “new hiking and
biking trail/railbanked easement.” Defendants-Appellees
reject this explanation and contend that “the Trails Act
merely preempts abandonment of the state law easement and
guarantees the right to trail use” by its plain language. In
other words, the Trails Act preserves—rather than
converts—the existing railroad easement, and creates an
additional recreational trail easement.

We agree with Defendants-Appellees. The Trails Act,
by its plain language, “prevents the operation of state laws
that would otherwise come into effect upon abandonment—
property laws that would ‘result in extinguishment of
easements for railroad purposes and reversion of rights of
way to abutting landowners.’” Caldwell v. United States,
391 F.3d 1226, 1229 (Fed. Cir. 2004) (quoting Rail
Abandonments—Use of Rights-of-Way as Trails, 2 I.C.C. 2d
591, 596 (1986)). “Section 8(d) provides that a railroad
wishing to cease operations along a particular route may
negotiate with a State, municipality, or private group that is
prepared to assume financial and managerial responsibility
for the right-of-way. If the parties reach agreement, the land
may be transferred to the trail operator for interim trail use,
subject to [STB]-imposed terms and conditions . . . .”
Preseault I, 494 U.S. at 6–7 (footnote omitted); see also
16 U.S.C. § 1247(d); 49 C.F.R. § 1152.29 (2012). The STB
will issue a NITU, and the railroad corridor is “railbanked.”
See, e.g., 49 C.F.R. § 1152.29(d)(1)–(2) (2016); Caldwell,
391 F.3d at 1229.

The question of how “railbanking” affects the underlying
property rights in a corridor turns on state law. To
understand why, it is helpful to consider the Federal Circuit’s
rails-to-trails takings jurisprudence. In the years since the
 HORNISH JOINT LIVING TRUST V. KING COUNTY 23

Trails Act’s enactment, the Court of Federal Claims has been
inundated with Tucker Act claims alleging that the Trails
Act’s preclusion of state law caused a taking of their
property interests, for which the landowners were entitled to
just compensation under the Fifth Amendment. To decide
these cases, that court has been required to determine what
property interests were taken when each corridor was
railbanked; only once the court determined what was taken
could it determine how much (if any) compensation was due.

Consistently, the Federal Circuit has explained that “a
Fifth Amendment taking occurs when, pursuant to the Trails
Act, state law reversionary interests are effectively
eliminated in connection with a conversion of a railroad
right-of-way to trail use.” Caldwell, 391 F.3d at 1228 (citing
Preseault v. United States, 100 F.3d 1525, 1543 (Fed. Cir.
1996) (en banc) (“Preseault II”)). “The Trails Act prevents
a common law abandonment of the railroad right-of-way
from being effected, thus precluding state law reversionary
interests from vesting.” Jackson v. United States, 135 Fed.
Cl. 436, 443 (2017) (citing Caldwell, 391 F.3d at 1229).
And, it is “state law [that] creates and defines the scope of
the reversionary or other real property interests affected by
the [STB’s] actions pursuant to . . . 16 U.S.C. § 1247(d).”
Preseault I, 494 U.S. at 20 (O’Connor, J., concurring); see
also, e.g., Toews v. United States, 376 F.3d 1371, 1375 (Fed.
Cir. 2004) (determining scope of railroad easements under
California law); Preseault II, 100 F.3d at 1542 (determining
scope of railroad easements under Vermont law). Thus, to
determine whether there has been a taking in a rails-to-trails
case involving a railroad easement, a court must determine
whether, as a matter of state law, the scope of the railroad
easement was limited to railroad purposes or broad enough
to encompass future use as a recreational trail. See, e.g.,
Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373
24 HORNISH JOINT LIVING TRUST V. KING COUNTY

(Fed. Cir. 2009) (citing Preseault II, 100 F.3d at 1533). If
the railroad possessed an easement limited to railroad
purposes, such that the corridor’s use as a recreational trail
normally would trigger the easement’s abandonment under
state law, then the Trails Act deprived Plaintiffs-Appellants
of their reversionary rights and caused a taking. See, e.g.,
Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010)
(holding that a taking occurs in a rails-to-trails case “when
government action destroys state-defined property rights by
converting a railway easement to a recreational trail, if trail
use is outside the scope of the original railway easement”);
Jackson, 135 Fed. Cl. at 444 (“If standard abandonment had
occurred . . . , the railroad, as the owner of the servient
estate, would not retain any property interest in the right-of-
way, and that property interest would revert to the dominant
landowner. Thus, the Trails Act, in preventing this
reversion, effects a taking.” (citation omitted)); Balagna v.
United States, 135 Fed. Cl. 16, 22 (2017) (“If the railroad
acquired an easement limited only to railroad purposes, . . .
then the issuance of the NITU interferes with the plaintiff’s
state law property rights and triggers the application of the
Takings Clause.”). In essence, the Government, through the
Trails Act, has taken the landowner’s reversionary property
right and created a new easement for trails use. See Toews,
376 F.3d at 1376 (“[I]f the Government uses . . . an existing
railroad easement for purposes and in a manner not allowed
by the terms of the grant of the easement, the Government
has taken the landowner’s property for the new use. The
consent of the railroad to the new use does not change the
equation—the railroad cannot give what it does not have.”);
Preseault II, 100 F.3d at 1550 (“The taking of possession of
the lands . . . for use as a public trail was in effect a taking of
a new easement for that new use, for which the landowners
are entitled to compensation. . . . [It resulted in] a new
 HORNISH JOINT LIVING TRUST V. KING COUNTY 25

easement for the new use, constituting a physical taking of
the right of exclusive possession . . . .”).

Here then, to determine the impact of the Trails Act on
Plaintiffs-Appellants’ property rights, we must look to
Washington law. As noted, the parties agree that because no
original deeds for the portions of the Corridor adjacent to
which the Non-Hornish Plaintiffs-Appellants own land were
put into evidence, the railroad easement was a prescriptive
easement with regard to those portions of the Corridor.
Under Washington law, a prescriptive easement is
“established only to the extent necessary to accomplish the
purpose for which the easement is claimed.” Yakima Valley
Canal Co. v. Walker, 455 P.2d 372, 374 (Wash. 1969).
Thus, a prescriptive railroad easement exists “to the extent
necessary” to operate a railroad. Accordingly, Washington
common law dictates that “a change in use from ‘rails to
trails’” will “constitute[] abandonment” of such easement.
Lawson v. State, 730 P.2d 1308, 1313 (Wash. 1986). And,
upon that abandonment, in the ordinary case, “the right of
way would automatically revert to the reversionary interest
holders.” Id.

However, this is not an ordinary case, because here, the
Trails Act has stopped the reversion from occurring. It has
prevented abandonment of the railroad easement in the event
of trail use—a use outside of those necessary for railroad
purposes—and thereby preserved the original railroad
easement. However, this application of the Trails Act has,
in effect, created a new easement for a new use—for
recreational trail use. The railroad and its successors in
interest now have two easements: (1) the easement for
railroad purposes, which they never abandoned (because of
the Trails Act) and therefore retain, and (2) the new
26 HORNISH JOINT LIVING TRUST V. KING COUNTY

easement for recreational trail purposes. See Preseault II,
100 F.3d at 1550.

Here, the railroad chose to convey its ownership interest
in the Corridor to TLC by quitclaim deed. TLC then initiated
the railbanking process, the STB issued a NITU, and the
Corridor was “railbanked.” At that point, TLC conveyed all
of its ownership interests in the Corridor to King County
through a duly recorded quitclaim deed. For the reasons
outlined above, this conveyed to King County both the
railroad’s original, unabandoned easement for railroad
purposes and the new easement for recreational trail
purposes that the Trails Act had created. See Trevarton v.
South Dakota, 817 F.3d 1081, 1087 (8th Cir. 2016) (holding
that when railroad conveyed its railroad easement to the
defendant through a quitclaim deed, the defendant also
acquired the “new easement” created by the Trails Act).
Since there is no evidence that King County has
subsequently used these easements in a manner inconsistent
with their purposes (which could trigger abandonment under
state law), we hold that King County possesses the railroad
and recreational trail easement. 4

4
Though this result may seem harsh, it is essential to note that
[a] conveyance . . . under the Trails Act [does] not leave [the
former reversionary interest holders] without a remedy . . . .
Indeed, it [leaves] them with a variety of possible remedies—
for example, a takings action seeking compensation because
[the trail sponsor’s] new easement diminished the property
rights [the landowners] enjoyed when the right-of-way was
limited to railroad uses; or a court action claiming that [the trail
sponsor is] unlawfully managing the Trail as a matter of federal
or state law; or a petition to the STB claiming that [the trail
sponsor’s] management of the Trail impairs restoration of the
right-of-way to railroad use. And of course [landowners] can
negotiate with state officials to allow [them] reasonable access
 HORNISH JOINT LIVING TRUST V. KING COUNTY 27

C. The Centerline Presumption Does Not Apply

The Non-Hornish Plaintiffs-Appellants contend that
notwithstanding King County’s easement, they have
standing because Washington’s “centerline presumption”
gives them a property right in the Corridor (i.e., a “direct,
substantial interest”). We disagree.

Washington’s “centerline presumption” was first
recognized by the Washington Supreme Court in Roeder
Company v. Burlington Northern, Inc., 716 P.2d 855 (Wash.
1986). There, the court first applied “the ‘highway
presumption’ . . . to railroad rights of way,” and held that, in
general, “the conveyance of land which is bounded by a
railroad right of way will give the grantee title to the center
line of the right of way if the grantor owns so far, unless the
grantor has expressly reserved the fee to the right of way, or
the grantor’s intention to not convey the fee is clear.” Id. at
861. Thus, the court reasoned, when a “deed refers to the
grantor’s right of way as a boundary without clearly
indicating that the side of the right of way is the boundary, it
is presumed that the grantor intended to convey title to the
center of the right of way.” Id.

When, however, a deed refers to the right of
way as a boundary but also gives a metes and
bounds description of the abutting property,
the presumption of abutting landowners
taking to the center of the right of way is
rebutted. A metes and bounds description in

and use of the right-of-way for their ranch operations, as they
presumably negotiated with railroad operators in the past.

Trevarton, 817 F.3d at 1087.
28 HORNISH JOINT LIVING TRUST V. KING COUNTY

a deed to property that abuts a right of way is
evidence of the grantor’s intent to withhold
any interest in the abutting right of way, and
such a description rebuts the presumption
that the grantee takes title to the center of the
right of way.

Id. at 861–62.

Additionally, the Roeder court clarified that the
centerline presumption is of limited applicability. An
abutting landowner is not automatically entitled to the
centerline presumption. Id. at 862 (“A property owner
receives no interest in a railroad right of way simply through
ownership of abutting land.”). Thus, an adjoining landowner
may not invoke the centerline presumption if he presents “no
evidence of having received his or her property from the
owner of the right of way.” Id. “Without evidence showing
that the owner of abutting property received that property
from the fee owner of the right of way property, the railroad
presumption is inapplicable.” Id.

The district court found that the centerline presumption
did not apply here. First, the court held that all of the Non-
Hornish Plaintiffs-Appellants’ deeds “contain[ed] metes and
bounds descriptions which use the right of way as a
boundary line.” Second, the court held that the Non-Hornish
Plaintiffs-Appellants had failed to provide the requisite
evidence of their interest, because they “[did] not succeed in
establishing chain of title.” Their property interests derived
from a common grantor, Middleton, in whose probate the
Corridor was specifically excluded. The district court
therefore concluded that the centerline presumption was
inapplicable, in light of “the Court’s rulings on the other
issues presented [that] establish the parties’ respective
 HORNISH JOINT LIVING TRUST V. KING COUNTY 29

rights,” and also not a determinative, material dispute that
could preclude summary judgment.

We agree. The Non-Hornish Plaintiffs-Appellants
cannot invoke the centerline presumption because (1) the
grantor, Middleton “expressly reserved the fee to the right of
way,” Roeder, 716 P.2d at 861, and (2) the Non-Hornish
Plaintiffs-Appellants deeds and chains of title utilize the
railway as a boundary, as the district court determined. The
centerline presumption does not afford the Non-Hornish
Plaintiffs-Appellants any property interest in the Corridor.
Without such an interest, these Plaintiffs-Appellants lack
standing to bring their declaratory judgment claims. The
district court’s denial of summary judgment to Plaintiffs-
Appellants and dismissal of the AC on this basis are
affirmed.

II. The District Court Properly Granted Summary
Judgment to and Quieted Title in King County

A. King County Possesses the Railroad Easement
and Recreational Easement

As described above, King County acquired its property
interests through a series of conveyances undertaken
pursuant to the Trails Act. When TLC conveyed all of its
ownership interests in the Corridor to King County through
a duly recorded quitclaim deed, TLC conveyed to King
County both the railroad’s original, unabandoned easement
for railroad purposes and the new easement for recreational
trail purposes that the Trails Act had created. See Trevarton,
817 F.3d at 1087; Preseault II, 100 F.3d at 1550. As there
is no evidence that King County has subsequently used these
easements in a manner inconsistent with their purposes
(which could trigger abandonment under state law), we hold
that King County possesses the railroad and recreational trail
30 HORNISH JOINT LIVING TRUST V. KING COUNTY

easement. The railroad easement encompasses the full
extent of incidental uses that may be authorized under
Washington law. 5 See Wash. Sec. & Inv. Corp. v. Horse
Heaven Heights, Inc., 130 P.3d 880, 886 (Wash. Ct. App.
2006); Kershaw Sunnyside Ranches, Inc. v. Yakima
Interurban Lines Ass’n, 91 P.3d 104, 115 (Wash. Ct. App.
2004), aff’d in part, rev’d in part on other grounds, 126 P.3d
16 (Wash. 2006).

B. The Easement’s Width Adjacent to the Non-
Hornish Plaintiffs-Appellants’ Properties Is 100
Feet

Plaintiffs-Appellants claim that the railroad “utilized a
width of approximately 12 feet for their actual railroad
operations for over 100 years from 1888 until 1998.”
Defendants-Appellees dispute this, arguing that the Corridor
is 100 feet wide, except where it is fifty feet wide next to the
Morel Plaintiffs-Appellants’ property and is approximately
seventy-five feet wide next to the Menezes and
Vanderwende Plaintiffs-Appellants’ properties.
Defendants-Appellees also observe that “[a]t various times
in this litigation, Appellants have claimed the Railroad
actually needed a width ‘between 12 feet and 20 feet,’ “no
greater than 18 feet,” fourteen feet, (‘7 feet from center line’
on both sides ‘of the tracks’), and ‘approximately 12 feet.’”

In support of their current 12-foot-width argument,
Plaintiffs-Appellants primarily rely on the declaration of

5
Because the identity of such permitted incidental uses has not been
disputed in this case, we do not opine as to what such uses might be. See
Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164 n.4 (9th Cir. 2014)
(holding that where an issue is mentioned without legal argument, the
issue is neither specifically nor distinctly argued and thus not subject to
review).
 HORNISH JOINT LIVING TRUST V. KING COUNTY 31

Eugene and Elizabeth Morel (the Morel Declaration). The
Morels assert that at their property, which is “located along”
and “bisected” by a portion of the Corridor, the Corridor has
a width of 10 feet. The original house on the property was
built in the 1920s and ‘30s, and “was more than 50% inside
the [right-of-way] width claimed by King County.” The
Morels claim that they have paid taxes on the parts of the
home and property that fall within the land claimed by King
County. An access driveway “was and is still today” within
that right-of-way. The Morels improved an area on the east
side of the track, “about 7 feet from [the] center line of the
tracks,” which they used to park cars. To access their house,
they would cross the tracks and walk down stairs to it. The
Morels also improved the land by adding “privacy trees,”
other landscaping, irrigation, patios, and child swing sets.
No rail operator ever asked the Morels to stop or limit these
uses of the land.

Then, in 1996, the Morels obtained a quitclaim deed
from BNSF granting them “clear title to the outside 25 feet
on both the east and west sides of the [right-of-way].” This
allowed the Morels to replace the original house with a new
house, the construction of which finished in 2001. The
Morels claim that “driveways, walkways, landscaping and
other improvements were installed during construction” that
are “clearly on land that King County claims they own via
prescriptive easement.” The Morels also assert that there is
an “8 foot diameter boulder, estimated to weigh about
6 tons” that sits on the lot owned by the Neighbors Plaintiffs-
Appellants. One of the Morels played on the rock as a child,
in the 1950s. The Morels assert that this rock proves the
right-of-way is no more than 12 feet in width because the
“rock is just over 6 feet from the centerline of the [right-of-
way] corridor” and the railroad has never removed it.
32 HORNISH JOINT LIVING TRUST V. KING COUNTY

Plaintiffs-Appellants also rely on the declaration of John
Rall (the Rall Declaration), a private consultant with a
bachelor’s degree in civil engineering and a “Professional
Land Surveying License” from the state of Georgia. Rall
indicates that he has reviewed the chains of title relating to
the Plaintiffs-Appellants’ chains of title, and determined that
they evidence that

[1] [n]o deed in the chains of title expressly
reserved the fee portion underlying the
Railroad Right-of-way unto any predecessor
grantor; [2] [e]ach grantor . . . granted all
interest that they owned, including their
interest in the railroad right-of-way; . . . and
[3] [e]ach of the current [Plaintiffs-
Appellants] acquired their interests in the
former railroad right-of-way from their
predecessor in interests and are the current
owners of the underlying fee in the current
easement held by King County for hiking and
biking purposes with the potential future
reactivation of a railroad.

In support of their claim that the Corridor has a 100-foot
width, Defendants-Appellees introduced “[o]fficial agency
records from the Interstate Commerce Commission (‘ICC’),
known as the 1917 Val Maps.” The Val Maps were drawn
pursuant to the 1913 Valuation Act, which required the ICC
“to make an inventory which shall list the property of every
common carrier subject to the provisions of this Act in detail,
and show the value thereof as hereinafter provided, and shall
classify the physical property, as nearly as practicable.” Pub.
L. No. 62-400, § 19(a), 37 Stat. 701, 701 (1913) (former
49 U.S.C. § 10781). During this inventory, engineers
devised the Val Maps to document “the land owned by a
 HORNISH JOINT LIVING TRUST V. KING COUNTY 33

railroad and how it was acquired, the land adjacent to
railroad property, and the financial history of the railroad
from its earliest operations to the date of basic valuation.”
Defendants-Appellees contend that the maps prove that the
width of the relevant portions of the Corridor has long been
100 feet. First, the Maps indicate that the Railroad originally
acquired 4.71 acres of land in the 2,050-foot-long segment
adjacent to the Neighbors, Morel, and Menezes and
Vanderwende Plaintiffs-Appellants’ properties, Parcel 6, by
way of adverse possession. Second, the Maps indicate that
the segment adjacent to the Lake Sammamish 4257 LLC and
the Moore Plaintiffs-Appellants’ property, Parcel 13, is
3.29 acres and 1,434.4 feet long. Defendants-Appellees
claim these measurements confirm the Corridor’s 100-foot
width.

Defendants-Appellees have also introduced certain of
the King County Assessor’s records. These records
document a change in “the area owned by Mr. Middleton in
1891 and later years,” which Defendants-Appellees argue
“confirms the creation of a one hundred feet Corridor in Lot
2 of Section 7, Township 24 North, Range Six East of the
Willamette Meridian, which eventually became the source
of the parcels owned by the Neighbors, Morel, and Menezes
and Vanderwende [Plaintiffs-Appellants].” Defendants-
Appellees claim that “[t]he Assessor Rolls confirm the
Railroad also acquired a one hundred foot Corridor in Lot 3
of Section 17, which became the source of the property
owned by Lake Sammamish 4257 LLC and the Moore
[Plaintiffs-Appellants].” Additionally, the King County
Assessor’s maps exclude the one hundred foot Corridor from
Appellants’ properties, consistent with tax assessments
dating back to 1895. Notably, Plaintiffs-Appellants offered
no proof that they have ever paid property taxes within the
Corridor.
34 HORNISH JOINT LIVING TRUST V. KING COUNTY

Additionally, Defendants-Appellees argue that the
actions of Plaintiffs-Appellants and their predecessors-in-
interest comport with an understanding of the 100-foot
width. For example, the Morel Plaintiffs-Appellants
acquired their property from Eugene Morel’s parents, who
acknowledged that the Corridor was one hundred feet wide
when they purchased a “portion of [BNSF’s] 100.0 foot wide
Snoqualmie Branch Line right of way” from the Railroad on
May 23, 1996, and left the railroad with the 50 feet it still
has today. And the predecessor of the Menezes and
Vanderwende Plaintiffs-Appellants, Lynn Goldsmith, filed
an adverse possession lawsuit against the Railroad, disputing
the Railroad’s “claim[] that the right of way is 100 ft. in
width – 50 ft. on each side of its centerline.” Goldsmith
settled her claims in exchange for a narrow strip of land from
BNSF, implicitly acknowledging that the remainder of the
Corridor—roughly seventy-five feet wide—belonged to
BNSF (and now King County). Such attempts to buy land
are inconsistent with a belief in one’s right of possession. Cf.
City of Port Townsend v. Lewis, 75 P. 982, 983 (Wash. 1904)
(finding that purported possessors’ “contesting with the
officers of the state and municipality their claim of a
preference right to purchase the[] very lands” they claimed
to possess was conduct “wholly inconsistent with the idea of
an adverse possession”); Jensen v. Compton, 131 Wash.
App. 1064, 2006 WL 616052, at *3 (2006) (holding that
defendant’s offer to purchase undermined his adverse
possession claim).

Finally, Defendants-Appellees provide evidence that a
100-foot-width is necessary for railroad operations. For
example, Mike Nuorala, a longtime engineer for BNSF,
stated in his declaration that the full width of the right of way
is necessary as a “safety buffer to ensure minimum setbacks
between freight trains and residential development, to
 HORNISH JOINT LIVING TRUST V. KING COUNTY 35

prevent nearby construction and development activities that
could undermine the stability of the steep slopes above and
below the tracks, and to provide access for maintenance
activities, such as tie replacement, that require significant
clearance on one or both sides of the track.”

Lining this evidence up alongside Plaintiffs-Appellants’,
it is clear that most of Defendants-Appellees’ evidence is
unrebutted. The Rall Declaration is inadmissible, because it
offers only Rall’s interpretation of the relevant deeds, and
“[r]esolving doubtful questions of law is the distinct and
exclusive province of the trial judge.” Nationwide Transp.
Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1058 (9th Cir.
2008) (quoting United States v. Weitzenhoff, 35 F.3d 1275,
1287 (9th Cir. 1993)); see also Washington v. Maricopa
County, 143 F.2d 871, 872 (9th Cir. 1944) (holding that
affidavits containing “statements of legal conclusions . . .
should have been disregarded” in resolving summary
judgment motion). And, the Morel Declaration, at most,
creates a genuine issue of fact regarding the historic width
of the Corridor adjacent to only the Morels’ property with its
statement that the Morel family previously had a home
inside the claimed Corridor. However this dispute is not
material; the current width of the Corridor adjacent to the
Morels’ property is undisputed because of the Morel
family’s 1996 purchase of land from the railroad. Because
Plaintiffs-Appellants have not introduced any admissible
evidence to support their claimed 12-foot width, and
Defendants-Appellees have introduced considerable
evidence supporting their claimed 100-foot width, there is
no genuine dispute of material fact with regard to the width
of the Corridor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986) (holding that summary
judgment standard is met where the evidence is “so one-
sided that one party must prevail as a matter of law”). The
36 HORNISH JOINT LIVING TRUST V. KING COUNTY

width of the Corridor is 100 feet, except where fifty feet wide
next to the Morel Plaintiffs-Appellants’ property and
approximately seventy-five feet wide next to the Menezes
and Vanderwende Plaintiffs-Appellants’ properties. 6

C. Plaintiffs-Appellants’ Motion to Supplement the
Record

Also pending in this case is Plaintiffs-Appellants’
motion to supplement the record on appeal with certain
evidence that was not before the district court. (Dkt. No. 57).
Specifically, Plaintiffs-Appellants seek to add certain
evidence and testimony introduced by Plaintiffs-Appellants
in a similar case, Neighbors v. King County, which they
contend contradicts Defendants-Appellees’ claim that the
corridor at issue here had a consistent width of 100 feet and
supports Plaintiffs-Appellants’ argument that the width is
much less.

Defendants-Appellees oppose this motion, (Dkt. No.
61), which they point out was not made until nearly
18 months after the district court proceedings had
concluded. Defendants-Appellees contend that Plaintiffs-
Appellants made the strategic decision to argue below that
Defendants-Appellees’ payment of taxes and fees was
irrelevant, and that Plaintiffs-Appellants should now be held
to that choice on appeal. Defendants-Appellees also note
that the evidence Plaintiffs-Appellants seek to introduce
includes declarations written by Plaintiffs-Appellants
themselves, and that Plaintiffs-Appellants have offered no

6
Because we resolve the case on these grounds we do not reach the
district court’s holding in the alternative that King County acquired
property rights in the Corridor pursuant to Washington Revised Code
section 7.28.070.
 HORNISH JOINT LIVING TRUST V. KING COUNTY 37

explanation as to why this evidence was not available at the
time of the summary judgment proceedings below. Finally,
Defendants-Appellees argue that the submitted materials are
not the proper subject for judicial notice, and that there has
been no showing of extraordinary circumstances.

We agree with Defendants-Appellees. Plaintiffs-
Appellants had a full opportunity to acquire these records
during discovery, and simply failed to do so. Plaintiffs-
Appellants have not offered any explanation for their failure
to undertake discovery relating to King County’s payment of
taxes and to procure and produce their own property tax
records in response to King County’s discovery. Indeed,
below Plaintiffs-Appellants explained only that they were
not obtaining this discovery because they believed it
irrelevant. It is only now, after the district court has
disagreed with that belief and credited Defendants-
Appellees’ argument, that Plaintiffs-Appellants have felt
compelled to act. And yet even now, Plaintiffs-Appellants
have not procured this discovery on their own. They only
became aware of it when it was filed fortuitously in a
separate case.

On appeal of summary judgment, courts generally
consider only the record that was before the district court.
United States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir.
2007). This court will make “exceptions to this general rule
in three situations: (1) to ‘correct inadvertent omissions from
the record,’ (2) to ‘take judicial notice,’ and (3) to ‘exercise
inherent authority . . . in extraordinary cases.’” Id.
(alteration in original) (quoting Lowry v. Barnhart, 329 F.3d
1019, 1024 (9th Cir. 2003)).
38 HORNISH JOINT LIVING TRUST V. KING COUNTY

Neither of the first two exceptions could apply here.
Plaintiffs-Appellants have made no argument that these
documents were omitted by mistake or by accident. Rather,
the record makes clear that they were omitted for a tactical
reason—because Plaintiffs-Appellants had concluded they
were irrelevant. Additionally, the contents of the records are
not a matter of which the court can take judicial notice. Even
if the records are filed on the public docket of the Neighbors
case, we can take judicial notice only of the filing of the
documents, and not of the truth of the documents’ contents.
See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,
442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los
Angeles, 250 F.3d 668, 690 (9th Cir. 2001).

Thus, only the third exception remains for our
consideration. However, Plaintiffs-Appellants have not
explained in their moving papers or at oral argument what
extraordinary circumstances prevented their timely
introduction of such evidence as their own declarations in
this case. Moreover, there seems to be nothing extraordinary
about Plaintiffs-Appellants’ situation. Plaintiffs-Appellants
were well aware that the width of the Corridor was at issue
at summary judgment, and that it was their burden to
introduce evidence supporting their claim that the width was
no greater than 12 feet. Plaintiffs-Appellants believed the
Morel and Rall Declarations were sufficient, and declined to
obtain the additional evidence that was available to them.
We see no reason why now they should be freed from the
consequences of that strategic decision. Plaintiffs-
Appellants’ motion to supplement the record is denied.

CONCLUSION

For the foregoing reasons, we affirm the district court’s
denial of summary judgment to Plaintiffs-Appellants,
dismissal of the AC, and grant of summary judgment and
 HORNISH JOINT LIVING TRUST V. KING COUNTY 39

quiet title to King County. We also deny Plaintiffs-
Appellants’ motion to supplement the record.

AFFIRMED.