                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 10 1998
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    T. GREGORY KIRIANOFF;
    PATRICIA KIRIANOFF, on behalf of
    a class of similarly situated persons
    or entities,

                Plaintiffs-Appellants,
                                                       No. 97-1037
    v.                                              (D.C. No. 96-Z-570)
                                                         (D. Colo.)
    SOUTHERN PACIFIC RAIL
    CORPORATION, a Delaware
    corporation; THE DENVER AND RIO
    GRANDE WESTERN RAILROAD
    COMPANY, a Delaware corporation;
    SOUTHERN PACIFIC
    TRANSPORTATION COMPANY,
    a Delaware corporation,

                Defendants-Appellees,

    and

    ROARING FORK RAILROAD
    HOLDING AUTHORITY,

                Intervenor.


                              ORDER AND JUDGMENT *



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiffs appeal the district court decision dismissing their declaratory

judgment action. See Fed. R. Civ. P. 12(b)(6). This court reviews such a

dismissal de novo, accepting plaintiffs’ well-pleaded allegations as true. See

Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir. 1997). Upon consideration

of the record and the parties’ arguments, we affirm.

      Plaintiffs, proceeding under 43 U.S.C. § 912, seek to quiet title in

themselves to a railroad right-of-way adjoining their property. A determination

by the Surface Transportation Board (Board), under 49 U.S.C. § 10903,

authorizing the railroad to abandon the rail line is a prerequisite to a court’s

transferring interests to adjoining landowners under § 912. See Phillips Co. v.

Denver & Rio Grande W. R.R., 97 F.3d 1375, 1375 (10th Cir. 1996), cert. denied,

117 S. Ct. 2480 (1997). Because the Board has not authorized defendants to



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abandon the rail line at issue here, the district court did not err in dismissing

plaintiffs’ claims.

      Plaintiffs argue that Phillips Co. “cannot be easily reconciled with the

Federal Circuit’s decision” in Preseault v. United States, 100 F.3d 1525 (Fed. Cir.

1996). See Appellants’ Opening Br. at 6. This three-judge panel does not have

authority to overrule Phillips Co., see, e.g., Summum, 130 F.3d at 912 n.8; United

States v. Hargus, 128 F.3d 1358, 1364 (10th Cir. 1997), petition for cert. filed

(Dec. 5, 1997) (U.S. No. 97-7024), and plaintiffs have not filed a suggestion for

in banc consideration, see Fed. R. App. P. 35; see also United States v. Splawn,

963 F.2d 295, 297 (10th Cir.), on reh’g, 982 F.2d 414 (10th Cir. 1992).

      The judgment of the United States District Court for the Colorado

is AFFIRMED. Intervenor’s request for sanctions is DENIED.



                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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