                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-2156
      ___________

Randolph C. Fletcher;                   *
Sheila A. Fletcher,                     *
                                        *
             Plaintiffs - Appellants,   *
                                        *
      v.                                *
                                        *
Burlington Northern and Santa           *
Fe Railway Company; City                *
of Carl Junction;                       *
James J. Wisdom,                        *
                                        *
             Defendants - Appellees,    * Appeals from the United States
                                        * District Court for the
Doe Insurance Company,                  * Western District of Missouri.
                                        *
             Defendant,                 *
                                        *
Joplin Trail Coalition,                 *
                                        *
             Defendant - Appellee.      *

      ___________

      No. 06-2159
      ___________


Jeff Lundein; Elizabeth Lundein,        *
                                        *
            Plaintiffs - Appellants,    *
Paul Hance; Kathleen Hance;             *
Randolph C. Fletcher; Sheila            *
A. Fletcher; John C. Warner;            *
Beverly G. Warner; John Fredrickson;    *
Shirley Sue Fredrickson; Clayton        *
A. Crosby; Carl Junction R-1,           *
                                        *
             Plaintiffs,                *
                                        *
       v.                               *
                                        *
Burlington Northern and Sante           *
Fe Railway Company;                     *
James J. Wisdom; City of                *
Carl Junction, Missouri;                *
                                        *
             Defendants - Appellees,    *
                                        *
Joplin Trail Coalition,                 *
                                        *
       Intervenor Defendant - Appellee, *

      ___________

      No. 06-2162
      ___________

John Fredrickson; Shirley Sue          *
Fredrickson; Stephen Fredrickson;      *
Tami Fredrickson,                      *
                                       *
            Plaintiffs - Appellants,   *
                                       *
      v.                               *
                                       *
Burlington Northern and Santa          *
Fe Railway Company; City of            *
Carl Junction; James J. Wisdom,        *


                                       -2-
                                          *
             Defendants - Appellees,      *
                                          *
Doe Insurance Company,                    *
                                          *
             Defendant,                   *
                                          *
Joplin Trail Coalition,                   *
                                          *
             Defendant - Appellee.        *

      ___________

      No. 06-2164
      ___________

Carl Junction R-1,                        *
                                          *
             Plaintiff - Appellant,       *
                                          *
      v.                                  *
                                          *
Burlington Northern and Santa             *
Fe Railway Company; Joplin                *
Trail Coalition,                          *
                                          *
             Defendants - Appellees.      *

                                      ___________

                              Submitted: November 17, 2006
                                 Filed: January 26, 2007
                                  ___________

Before MURPHY, ARNOLD, AND BENTON, Circuit Judges.
                         ___________



                                          -3-
MURPHY, Circuit Judge.

       The Burlington Northern Santa Fe Railway Company (BNSF) agreed with the
Joplin Trail Coalition to convert a railroad right of way to trail use. Seven adjacent
landowners initiated state court actions claiming that the railroad had abandoned the
right of way and had failed to comply with statutory maintenance duties on their
property; they seek declaratory relief and damages. Two of the seven also claim that
the mayor of Carl Junction had improperly entered the town into negotiations to
convert the right of way. The cases were consolidated after they were removed to
federal court, and the district court1 granted summary judgment to all defendants. The
landowners appeal, and we affirm.

                                           I.

       These consolidated actions arose out of BNSF's intent to abandon a rail line and
the decision of the Surface Transportation Board (Board) to cease the abandonment
process and allow trail use of the line pursuant to the National Trails System Act, 16
U.S.C. § 1247(d). The Trails Act provides for a process known as railbanking as an
alternative to complete abandonment of a rail line right of way. Congress created the
process of railbanking to preserve, where possible, unused railroad rights of way for
future rail service by temporarily converting the rights of way into recreational trails
until they are again needed for rail purposes. Presault v. Interstate Commerce
Comm’n, 494 U.S. 1, 5-7 (1990). The Act permits the Board to halt abandonment
proceedings if a railroad agrees to negotiate with a potential trail operator by issuing
a Notice of Interim Trail Use (NITU). 49 C.F.R. § 1152.29; Caldwell v. United States,
391 F.3d 1226, 1229 (Fed. Cir. 2004). If the railroad and the trail operator reach an
agreement prior to the expiration of the NITU, the NITU extends indefinitely, the right



      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

                                          -4-
of way is railbanked, and the trail operator is permitted to use the right of way for trail
purposes. Id.

      BNSF filed notice with the Board on May 3, 2002 of its intent to abandon and
discontinue service over a 28 mile railroad line in Eastern Kansas and Southern
Missouri. BNSF also sought to expedite the abandonment by filing an exemption
from formal proceedings. Because the line had not been used in over two years, see
49 C.F.R. § 1152.50(b), the Board exempted BNSF from the formal procedures and
the abandonment was scheduled to become effective on June 22, 2002.

        On May 10, the Joplin Trail Coalition (Coalition) and the City of Carl Junction
filed “statements of willingness” with the Board, seeking a NITU to allow them to
continue negotiating with BNSF to convert the right of way for trail use instead of
abandoning it. The statements of willingness provided that the Coalition and the city
were “willing to assume full responsibility” for the management of the trail and any
liability arising out of the right of way.

       BNSF agreed to negotiate, and the Board issued a NITU on June 21, 2002,
which suspended the abandonment process. This gave all interested parties the
opportunity to negotiate with BNSF about whether it would be willing to let the right
of way be maintained for public use instead of abandoning it. If the parties could
reach an agreement, the NITU would permit an indefinite period of public use without
BNSF being considered as having abandoned its interest. During this period the
NITU directed that BNSF was to “limit activities to the right-of-way” and “keep intact
the right-of-way underlying the tracks, including bridges, trestles, culverts and
tunnels.” Before the NITU expired, BNSF and the Coalition reached an "interim trail
use/railbanking and donation agreement" and BNSF donated its interest in the right
of way to the Coalition as trail operator by signing a quitclaim deed in September
2003.



                                           -5-
        Four months after the NITU had been issued, Jeff and Elizabeth Lundien,
owners of land adjacent to the right of way, wrote to BNSF requesting that it comply
with its statutory duties to clear brush along the right of way and to maintain fences
alongside it.2 See Mo. Rev. Stat. §§ 389.650; 655. BNSF responded two weeks later
in a letter informing the Lundiens that it had not used the rail line for over two years,
that the need for maintaining fences and the right of way ceased when it stopped using
the line, and that it had begun the formal abandonment process on May 3, 2002 by
filing its notice of abandonment with the Board.

       The Lundiens brought this action in state court against BNSF eight days after
they received its response to their maintenance request. The Lundiens request that the
court declare them owners of the portion of the right of way adjacent to their property,
arguing that BNSF's use of the right of way was only valid as long as the land was
being used for railroad purposes. The Lundiens also seek statutory damages for
BNSF's failure to comply with its legal duties. BNSF responded to their complaint
by raising federal preemption and removed the case to federal court on November 27,
2002.

      Nearly one year later, the district court consolidated the case with others
brought by the Fletchers, Fredricksons, Warners, Crosbys, Hances, and the Carl
Junction R-1 School District, all adjoining landowners to the right of way. The relief
sought in these cases is identical except for additional claims brought by the Fletchers
and Fredricksons against the City of Carl Junction and its mayor, James Wisdom.3
They seek a writ of mandamus ordering the mayor to withdraw from all proceedings




      2
          According to counsel, the fences had been damaged by a tornado.
      3
         The record indicates that the school district only sought ownership over the
right of way in a quiet title count and not statutory damages.

                                          -6-
before the Board and to reimburse the city for any legal fees it has incurred in the
process and damages for breach of the mayor's performance bond.4

       The Coalition, as trail operator and owner of the right of way, moved to
intervene; its motion was granted on February 27, 2004. That same day, the district
court dismissed the quiet title claims without prejudice on the theory that it lacked
subject matter jurisdiction over them because they were attacks on a final order of the
board, citing Grantwood Village v. Mo. Pac. R.R., 95 F.3d 654, 657 (8th Cir. 1996).5
The Coalition then filed for summary judgment. The city and Mayor Wisdom also
moved for summary judgment on the grounds that the plaintiffs had not alleged an
injury, relying on affidavits that the city had not incurred any legal fees when it
appeared before the Board. The plaintiffs resisted the Coalition's summary judgment
motion and filed their own motion for summary judgment against the city and mayor.
BNSF also moved for summary judgment at the motion hearing on December 9, 2005.

      The court granted summary judgment to all of the defendants, concluding that
the railroad's duties to the adjacent landowners ceased when the Coalition took
possession of the right of way and that plaintiffs lacked standing to pursue claims
against the city and mayor. The Fletchers, Lundiens, and Fredricksons appeal the
dismissal of their claims other than the dismissal of their quiet title cause of action.




      4
        They claim that the mayor entered the city into negotiations about the right
of way without authorization from the Board of Aldermen.
      5
        After their quiet title claims were dismissed, the plaintiffs filed condemnation
actions against the United States in the Court of Federal Claims. Carl Junction R-1
School District v. United States, No. 05-3L; Hance v. United States, No. 05-4L.
Those claims are still pending.

                                          -7-
                                          II.

        We review a grant of summary judgment de novo, using the same standard as
the district court. Bunch v. Canton Marine Towing Co., 419 F.3d 868, 870 (8th
Cir.2005). We view the evidence in the light most favorable to the non moving party
and grant summary judgment if there is no issue of material fact and the moving party
is entitled to judgment as a matter of law. Lund v. Hennepin County, 427 F.3d 1123,
1125 (8th Cir. 2005).

       Appellants claim that BNSF is liable for violating its statutory duties to clear
brush alongside the right of way and to maintain fences adjacent to it and that they are
entitled to damages because the Mayor lacked authorization to enter the city into
proceedings before the Board. BNSF responds that summary judgment was
appropriate because plaintiffs’ claims are preempted, its duties to maintain the right
of way ceased when it filed with the Board its notice of intent to abandon the right of
way, and plaintiffs have not shown damages. Mayor Wisdom and the city assert that
summary judgment was proper as to them because the city never incurred expenses
during the Board proceedings and the mandamus request is moot because the city did
not enter into any agreement with BNSF.

                                          A.

       Appellants allege that BNSF is liable for failing to comply with the statutory
responsibilities found in Chapter 389 of the Missouri Revised Statutes, entitled
“Regulation of Railroad Corporations.” The first of these statutes, Mo. Rev. Stat. §
389.650, requires “any railroad corporation running or operating any railroad in this
state” to “erect and maintain” fences, gates, and cattle guards on the “side of the road
where the same passes through.” Section 389.665 requires corporations “owning or
operating any railroad” to “keep the right of way reasonably clear of brush and high
weeds” for the purpose of preventing the spread of fire. At this stage we construe the

                                          -8-
facts in the light most favorable to the non moving party and assume for summary
judgment purposes that maintenance on the right of way and fence repair was needed.
Hinshaw v. Smith, 436 F.3d 997, 1004 (8th Cir. 2006).

       The statutes do not require a railroad to perform maintenance until the
landowners provide notice of the need for it. See Mo. Rev. Stat. §§ 389.650(3)
(requiring at least five days notice); 389.665(1) (requiring at least three days notice).
In this case it is undisputed that appellants did not give BNSF notice of the need for
maintenance prior to issuance of the NITU. As a result, summary judgment would
have been appropriate if issuance of the NITU preempted BNSF's state law
responsibilities. Preemption, which is grounded in the Supremacy Clause of the
Constitution, U.S. Const. Art. VI, requires that a state law "give way" when it
"conflicts with or frustrates federal law." Chapman v. Lab One, 390 F.3d 620, 624
(8th Cir. 2004). A state law is preempted if (1) Congress explicitly prohibits state
regulation in an area; (2) Congress implicitly prohibits state regulation by pervasively
occupying the area; (3) state law directly conflicts with federal law; or (4) a federal
agency, acting within the scope of its delegated authority, intends its regulations to
have preemptive effect. Noe v. Henderson, 456 F.3d 868, 870 (8th Cir. 2006).

       We need not reach the question of preemption in this case, however. The
statutes by their own terms do not apply to a rail line after a NITU has been issued and
a right of way has been dedicated to trail use. See United States v. Allen, 406 F.3d
940, 946 (8th Cir. 2005) ("[W]e choose the narrowest ground [on which to decide a
case] in order to avoid unnecessary adjudication of constitutional issues"). The
statutory maintenance duties of railroads in Missouri extend only to railroad
companies “running or operating any railroad” or “owning or operating” a railroad
right of way. See Mo. Rev. Code §§ 389.650; 655. At the time BNSF received notice
of the need for repairs, the right of way had not been used for rail purposes in over
two years and would have been abandoned had the NITU not been issued. The NITU
halted the abandonment proceedings, authorized railbanking of the right of way, and

                                          -9-
converted the right of way to recreational uses. Appellants err in contending that the
NITU extend the amount of time for which BNSF remained responsible for complying
with statutory responsibilities of railroads. Because the NITU converted the right of
way to public uses, BNSF was no longer "running or operating any railroad" nor
"owning or operating" a railroad right of way when it received the notice required by
statute. We affirm the award of summary judgment in favor of BNSF on this basis.
Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1043 (8th Cir.2005) (“This court
may affirm a grant of summary judgment on any ground supported by the record, even
if not relied upon by the district court”).

                                          B.

       The Fletchers and Fredricksons also appeal the judgment entered in favor of the
city and Mayor Wisdom, arguing that the mayor lacked authority to enter the city into
proceedings before the Board. They request that a writ of mandamus be issued
ordering that the city withdraw from all proceedings before the Board and that Mayor
Wisdom reimburse the city for the legal expenses incurred in those proceedings as
well as the current litigation. The city and mayor assert that summary judgment in
their favor would be appropriate because of the facts that the plaintiffs lack standing
to assert damages on behalf of the city, that plaintiffs fail to demonstrate how they
were injured by Mayor Wisdom's action, and that subsequent events have made the
plaintiffs’ request for mandamus moot.

       It is unnecessary to reach the merits of these appellants’ contentions. They
failed to rebut affidavits supplied by the city and mayor stating that the municipality
did not incur any expenses from its involvement in the Board proceedings and have
not cited any authority for their novel argument that the fees the city continues to
incur in defending here constitute a cognizable injury to them. As a result, plaintiffs
have failed to demonstrate an injury attributable to the mayor’s actions and lack
standing to pursue these claims. See Advantage Media, L.L.C. v. City of Eden Prairie,

                                         -10-
456 F.3d 793, 798-99 (8th Cir. 2006). They also seek an order directing the city to
withdraw from Board proceedings, but the city is no longer part of such proceedings
and ownership of the right of way has passed to the Coalition. Because the mandamus
order they seek could not constitute “effective relief,” Beck v. Mo. State High Sch.
Activities Ass’n, 18 F.3d 604, 605 (8th Cir. 1994), this request was properly dismissed
as moot.

                                            III.

          For the reasons stated, we affirm the judgments of the district court.6
                            ______________________________




      6
        Because of this disposition, we dismiss as moot the Coalition's motion for
summary dismissal of the appeals as to it or for voluntary dismissal to avoid damages
and double costs for frivolous appeals. The Coalition remains free to request costs in
a separate motion. See Fed. R. App. P. 38.

                                           -11-
