NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 3 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT KASEBURG; KATHRYN No. 16-35768

KASEBURG; MARTIN FEDIGAN;

BARBARA BERGSTROM; KIM KAISER; D.C. No. 2:14-cv-00784-JCC

PAMELA KAISER; DAVID KOMENDAT;

KELLI KOMENDAT; WILLIAM

BLOKKER; SUSAN BLOKKER; DAVID MEMORANDUM*

MCCRAY; SALLY MCCRAY; JOHN

LORGE III; NANCY LORGE; JOHN

HOWELL; MOLLY HOWELL; DARIUS

RICHARDS; VICKI RICHARDS;

GEORGE JOHNSTON; NANCY

JOHNSTON; GREGORY PIANTANIDA;

SHERRE PIANTANIDA; PAUL FERGEN;

CHRISTINE FREGEN; KEVIN IDEN;

TOM EASTON; KAREN EASTON; PAUL

PASQUIER; KARYN PASQUIER; JOHN

HOUTZ; TERENCE BLOCK; KARI

BLOCK; LARRY KOLESAR; SUSAN

KOLESAR; JOHN LAUGHLIN;

REBECCA LAUGHLIN; JEFFREY

RILEY; TAMI RILEY; NANCY MANZ;

DONALD DANA; PATRICIA DANA;

CHRISTIE MUELLER; DENISE HARRIS;

WALTER MOORE; TOM DAHLBY;

KATHY DAHLBY; HARRY DURSCH;

KIRSTEN LEMKE; RICHARD VAUGHN;

RICHARD S. HOWELL; LOIS HOWELL;

DONALD LOCKNER; PATRICIA

LOCKNER; MARJORIE GRUNDHAUS;

WILLIAM KEPPLER; DEBRA KEPPLER;

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

CURTIS DICKERSON; JULIE

DICKERSON; GREGORY LASEK;

PATRICIA LASEK; YONGTAO CHEN;

QIN LI; ROBERT TAYLOR; ALISON

TAYLOR; EDMUND JONES; DONALD

MILLER; SUSAN MINER; RONALD

JONES; CAROL JONES; STEVE

SMOLINSKE; SHERRI SMOLINSKE;

JOSEPH IOPPOLO; RICHARD KANER;

LYNN KANER; BRADLEY R. ELFERS;

BREGORY P. ELFERS; PAUL

REMINGTON; JOHN BURROUGHS;

BRUCE ERIKSON; MARY ERIKSON;

TIMOTHY RILEY; VIRGINIA RILEY;

JAMES SATHER; KELLY SATHER;

JULIAN LIMITED PARTNERSHIP;

STEVEN BRACE; KRISTEN BRACE;

CHARLES BILLOW; COURTNI

BILLOW; HAROLD A. BRUCE; PIERRE

THIRY; CRISTI THIRY; MICHAEL

FRANCESHINA; MICHAEL OLDHAM;

GINA OLDHAM; STEPHEN PORTER;

NANCY PORTER; ROBERT LARIS;

JANIS LARIS; MICHAEL RUSSELL;

ELANA RUSSELL; UMA SHENOY;

LARRY PETERSON; SUSAN

PETERSON; JOSEPH PETERSON;

KRISTIN PETERSON; JOHN PATRICK

HEILY; SUNDAY KYRKOS; PAUL

GIBBONS; TRACY GIBBONS; DAYTON

DENNISON; MARILYNN DENNISON;

GREGORY NICK; DIVERSITY ASSETS

LLC; JAMES JOHNSON; DAVID

WILLIAMSON; KRISTI SUNDERLAND;

CLAUDIA MANSFIELD; KEVIN

LINDAHL; REBECCA LINDAHL; KEVIN

TRAN; JEANNE DEMUND; KATHY

HAGGART; DAWN LAWSON;

MARLENE WINTER; JIE AO; XIN

2

ZHOU; PACIFIC HOLDINGS LLC;

JAMES TASCA; MICHAEL CHAN;

AMANDA CHAN; GARY WEIL; DALE

MITCHELL; MARLA MITCHELL;

FREDERICK MILLER; SUSAN MILLER;

PAMELA HUNT; GRETCHEN

CHAMBERS; ALWYN EUGENE GEISER;

DANIEL HAGGART; PAMELA

SCHAFER,

Plaintiffs-Appellants,

v.

PORT OF SEATTLE, a municipal corporation; PUGET SOUND ENERGY INC; COUNTY OF KING, a home rule charter county; CENTRAL PUGET SOUND

REGIONAL TRANSIT AUTHORITY,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted June 14, 2018 Seattle, Washington

Before: M. SMITH and WATFORD, Circuit Judges, and RAYES,** District Judge.

Plaintiffs-Appellants appeal the district court’s grant of summary judgment to

Defendants-Appellees and order quieting title in King County. We have jurisdiction

** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation.

3 pursuant to 28 U.S.C. § 1291, and we affirm.

As the facts and procedural history are familiar to the parties, we do not recite

them here.

1. We have jurisdiction over this appeal. Plaintiffs-Appellants argue that their

“claims to rights in the property undeniably arise out of state law, and since no

defense raised by any of the [Defendants-Appellees] is a proper basis for subject

matter jurisdiction, there is no federal question subject matter jurisdiction in this

case.” However, for the reasons outlined in greater depth in our opinion issued

contemporaneously, see Hornish v. King County, No. 16-35486, we reject this

contention. Our jurisdiction is proper because Plaintiffs-Appellants’ state-law

claims “‘necessarily raise[] 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.” Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 136 S. Ct. 1562, 1570 (2016) (quoting Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)).

2. Plaintiffs-Appellants lack both Article III and statutory standing to bring their

quiet title claim, pursuant to Revised Code of Washington section 7.28.010, and

declaratory judgment claim, pursuant to Revised Code of Washington section

7.24.020. Plaintiffs-Appellants lack property interests in the portions of the Eastside

Rail Corridor that are adjacent to their properties because the Kittinger and Lake

4 Washington Land Company October 8, 1903 deeds apply to the disputed parcels and

conveyed rights of way in fee simple, and the state of Washington holds the

reversionary interest to the property acquired through the condemnation of certain

submerged shorelands on February 8, 1904. The centerline presumption does not

apply because Plaintiffs-Appellants failed to introduce chains of title and “[a]

property owner receives no interest in a railroad right of way simply through

ownership of abutting land.” Roeder Co. v. Burlington Northern, Inc., 716 P.2d 855,

862 (Wash. 1986); see also Sammamish Homeowners v. County of King, No. C15-

284 MJP, 2015 WL 3561533, at *3 (W.D. Wash. June 5, 2015) (dismissing case for

lack of standing because plaintiffs failed to introduce chains of title, and rejecting

plaintiffs’ invocation of Kershaw, as it “involve[d] a clear generation-to-generation

chain of title (the kind of ‘proof of chain of title’ that Roeder requires)”).

3. The district court properly granted summary judgment to and quieted title in

King County. Plaintiffs-Appellants argue that

[r]ailbanking does not preserve the railroad purposes easement for current railroad uses, and King County and the other Defendants do not currently hold or own BNSF’s railroad purposes easement. King County only possesses a railbanked/hiking and biking trail easement and cannot use the corridor as if the railroad purposes easement currently exists, including any purported incidental uses.

We disagree. Again for the reasons we have outlined in greater depth in our opinion

issued contemporaneously, see Hornish v. King County, No. 16-35486, we hold that

5 the Trails Act 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. This in effect also created a new easement for a new

use—for recreational trail use. Thus, Defendants-Appellees 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 easement for

recreational trail purposes. See, e.g., Trevarton v. South Dakota, 817 F.3d 1081,

1087 (8th Cir. 2016); Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir.

1996) (en banc). Defendants-Appellees therefore can “use the corridor as if the

railroad purposes easement currently exists,” including for any incidental uses

allowed under Washington law,1 because that easement does exist. See Washington

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

1 The parties disputed below whether the running of an electric-powered passenger railroad and granting of utility easements were incidental uses permitted by Washington law. The district court held that they were. On appeal, Plaintiffs-Appellants have not disputed this holding, and so we do not consider the issue. We “review only issues which are argued specifically and distinctly in a party’s opening brief.” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994); see also 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).

6 104, 115 (Wash. Ct. App. 2004), aff’d in part, rev’d in part on other grounds, 126

P.3d 16 (Wash. 2006).

4. Finally, we hold that the district court did not abuse its discretion in

sanctioning Plaintiffs-Appellants. Federal Rule of Civil Procedure 37 afforded the

district court discretion to “issue further just orders,” including orders prohibiting

the introduction of designated matters in evidence. Fed. R. Civ. P. 37(b)(2)(A). The

district court exercised this discretion appropriately, after considering “whether the

claimed noncompliance involved willfulness, fault, or bad faith, and also to consider

the availability of lesser sanctions.” R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d

1240, 1247 (9th Cir. 2012) (citations omitted). The court had already employed a

lesser sanction for Plaintiffs-Appellants’ noncompliance—granting Defendants-

Appellees’ motion to compel—which failed to effect production of the chains of

title. The district court noted that this was “the second time Plaintiffs ha[d] relied

on evidence that they failed to disclose to King County upon its request.” Indeed,

as of the adjudication of the Defendants-Appellees’ motion for summary judgment,

there were no lesser sanctions available. The sanction imposed was a lesser sanction;

Defendants-Appellees were seeking entry of summary judgment in King County’s

favor. And the district court properly determined that the sanction was justified

because Plaintiffs-Appellants’ noncompliance was not harmless.

AFFIRMED.

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