                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-3580
HENRY C. WEDEMEYER and
MARTHA L. WEDEMEYER,
                                             Plaintiffs-Appellants,

                                v.

CSX TRANSPORTATION, INC.,
                                              Defendant-Appellee.
                    ____________________

        Appeal from the United States District Court for the
         Southern District of Indiana, Terre Haute Division.
      No. 2:13-cv-00440-LJM-WGH — Larry J. McKinney, Judge.
                    ____________________

   ARGUED JANUARY 11, 2017 — DECIDED MARCH 10, 2017
                    ____________________

   Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
    FLAUM, Circuit Judge. In 1989, CSX Transportation success-
fully petitioned the Interstate Commerce Commission (the
“ICC”) to end CSX’s obligation to provide common-carrier
rail service on a portion of track in Putnam County, Indiana.
The following year, CSX notified the ICC that it had aban-
doned that segment. Shortly thereafter, CSX leased a portion
2                                                             No. 15-3580

of its track, including the abandoned segment, for use by a
grain-shipping company.
    The Wedemeyers own property adjoining the abandoned
track segment. They sued CSX seeking removal of the tracks
and possession of the real property underlying the rail line.
CSX moved for summary judgment, and the district court
granted its motion, finding that the Wedemeyers’ claims were
preempted under the Interstate Commerce Commission Ter-
mination Act (“ICCTA”), 49 U.S.C. § 10501(b). We affirm.
                               I. Background
    CSX is one of the largest rail transportation companies in
the United States and a “rail carrier” 1 under the ICCTA. CSX’s
rail network consists of approximately 21,000 route miles
spanning 23 states, including Indiana. Historically, CSX and
its predecessors operated two primary rail lines through Put-
nam County, Indiana: (1) a north-south line running from Chi-
cago, Illinois, to Cloverdale, Indiana; and (2) an east-west line
between Indianapolis, Indiana, and Decatur, Illinois. These
two lines intersected in Roachdale, Indiana. CSX acquired the
portion of the east-west line at issue by a deed dated 1876 and
an instrument of appropriation dated 1879 conveyed to CSX’s
predecessor railway company. CSX has continuously oper-
ated trains through Roachdale over the east-west line since at
least 1966.




1Section 10102(5) of Title 49 of the United States Code defines “rail carrier”
as “a person providing common carrier railroad transportation for com-
pensation, but … not … street, suburban, or interurban electric railways
not operated as part of the general system of rail transportation.”
No. 15-3580                                                                   3

    In 1989, CSX filed a petition for an exemption with the ICC
seeking to end CSX’s obligation to provide common-carrier
rail service on a 26.73-mile segment of mainline track on the
east-west line (from Milepost 132.45 near Mitchellville, just
outside of Indianapolis, to Milepost 159.18 near Roachdale).
The ICC granted CSX’s petition, thereby giving CSX condi-
tional authority to end its obligation to provide common-car-
rier rail service on that track segment, which would no longer
be “mainline track.” CSX then had several options with re-
spect to this track, including continuing to utilize it as non-
mainline track, e.g., as industry, spur, team, switching, or side
track (collectively, “auxiliary track”);2 or physically removing
the track. 3 In 1990, CSX notified the ICC that it had “aban-
doned” the segment. 4


 These terms refer to various private or secondary uses of track, such as to
2


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

  CSX included this explanation in its statement of undisputed material
3


facts, to which the Wedemeyers failed to respond. To the extent that this
statement sets forth a legal proposition rather than a factual statement, we
note that it is nonetheless accurate, see, e.g., Fox v. Surface Transp. Bd., 379
F. App’x 767, 771–72 (10th Cir. 2010) (discussing track reclassified as aux-
iliary yard track after abandonment); Union Pac. R.R. Co.—Abandonment
Exemption—In Weld Cty., CO, No. AB-33, 2004 WL 2202235, at *1 (S.T.B.
Sept. 30, 2004) (“After abandonment, the line will be converted to an in-
dustry track … .”); The Atchison, Topeka and Santa Fe Ry. Co.—Abandonment
Exemption—In Lyon Cty., KS, No. AB-52, 1991 WL 120344, at *3 (I.C.C. June
11, 1991) (concluding that track that was once part of a rail line cannot be
unilaterally converted into a spur without appropriate abandonment au-
thority); The Atchison, Topeka and Santa Fe Ry. Co.—Abandonment Exemp-
tion—Lawrence, KS, No. AB-52, 1988 WL 225784, at *1 (I.C.C. Feb. 1, 1988)
(“Following the abandonment, [the railroad] will reclassify the track as
spur and will continue to serve [the shipper] … .”).
4                                                             No. 15-3580

    Since at least 1990, CSX has provided rail service to a
Roachdale grain-shipping facility located adjacent to CSX’s
track, to the east of the north-south line. Beginning in 1992,
CSX leased a portion of the track to the grain shipper for use
at its facility. The lease granted the grain shipper the right to
use (1) the CSX mainline track west of Milepost 159.18, which
connected to the north-south line at Milepost 159.80 (continu-
ous mainline track), and (2) the abandoned track east of Mile-
post 159.18 (former mainline track). The leased track has been
used for the storage and switching of empty inbound railcars
and loaded outbound railcars. CSX also retained the right un-
der the lease to switch railcars on the tracks as needed to con-
duct its own railroad operations, and to operate over the
leased track with its own locomotives and rail equipment. Be-
tween 2001 and 2014, CSX transported more than 15,000 car-
loads from the grain facility using the tracks.
    Henry (“Kit”) Wedemeyer and Martha Wedemeyer own
real property in Roachdale that adjoins approximately 2,588
feet of the former mainline (now auxiliary) track east of Mile-
post 159.18. The Wedemeyers were aware of the rail line and
its active use when they took up residence on the property in
2003, accepted the deed to the property in 2005, and con-
structed their residence adjacent to the rail line. Kit also grew

4 The district court opinion, CSX’s Local Rule 56.1 statement, and the par-
ties’ briefs on appeal simply state that CSX “abandoned” the track seg-
ment at this time. However, the declaration of Jo Ann Burroughs, Manager
of Network Services for CSX, to which the briefs cite, clarifies at paragraph
eight that when CSX seeks authority to “abandon” lines, such as the 26.73-
mile segment from Roachdale to Mitchellville, the track segment is aban-
doned only for purposes of providing common-carrier rail service. This is
in contrast to instances of complete abandonment, where any and all rail
use ceases and/or the tracks are removed.
No. 15-3580                                                    5

up on the property and recalls trains using the rail line adja-
cent to the property as far back as the late 1960s. The rail line
remained in place and operational during the Wedemeyers’
entire period of residence and ownership.
   The Wedemeyers first complained to CSX about the rail-
road operations on the track adjacent to their property on or
about August 2, 2013. In or around September 2013, when the
Wedemeyers learned that CSX claimed to control the uses of
the track in question, Kit spoke by telephone to Leah Weider,
the CSX Transportation Property Services Group Manager,
and directed CSX to vacate and cease any further entry onto
the property.
    In November 2013, the Wedemeyers filed in Putnam Su-
perior Court a “Complaint to Quiet Title and for Trespass and
Ejectment and Permanent Injunction,” which sought “imme-
diate and sole possession” of the real property underlying the
rail line and demanded that CSX “remove its ties, rails, and
ballast” from the rail line. The Wedemeyers’ complaint al-
leged that CSX had abandoned the track at issue in December
2003, pursuant to a settlement agreement and declaratory
judgment filed in an Indiana state-court class action—Clark v.
CSX Transp., Inc., No. 29D03-9308-CP-404 (Hamilton Cty. Su-
per. Ct.). The declaratory judgment, which was filed in 2004,
stated in relevant part:
       4. Where the title held by CSX to that portion of
       the Settlement Corridor has been determined
       pursuant to the Settlement Agreement to be less
       than fee title, the designation of “Easement” ap-
       pears in the column titled “Interest Status” in
       Exhibit A. With respect to these portions of the
       Settlement Corridor, the Court declares that the
6                                                  No. 15-3580

       Settlement Class Member’s title to the portion of
       the Settlement Corridor adjacent to their prop-
       erty is superior to any claims of title by CSX,
       subject to any prior adjudication of title in a
       Court of law in which the Class Member’s title
       or the title of the Class Member’s predecessor in
       interest was determined not to be superior to
       the title of CSX.
   The Wedemeyers’ predecessor-in-interest, Kit’s stepfather,
had opted into the Clark class, and had filed affidavits of own-
ership with the Putnam County Recorder in 2004, stating that
he held superior title to the property underlying the rail line.
He later conveyed the property to the Wedemeyers.
    CSX removed the case to federal court and later moved for
summary judgment, arguing that the ICCTA preempted the
Wedemeyers’ state-law claims and that their claims were
barred as a matter of law by the applicable statute of limita-
tions and by equitable doctrines. The Wedemeyers failed to
include a Local Rule 56.1 “Statement of Material Facts in Dis-
pute” in their response to CSX’s motion for summary judg-
ment. They contended, however, that their claims were not
preempted because they sounded in contract (i.e., the settle-
ment agreement in Clark as confirmed by the declaratory
judgment) and thus did not constitute a “regulation” under
the ICCTA. They also argued that the statute of limitations did
not begin to run until 2013, when Kit spoke with CSX.
   The district court held that because the Wedemeyers
sought to use state law to regulate (i.e., terminate) CSX’s use
of the easement, their claims were preempted under the
ICCTA. The court concluded that “regulation” did not refer
only to a state regulation or action, but rather, to controls or
No. 15-3580                                                    7

limitations of any kind on the use of rails. The court also re-
jected the Wedemeyers’ argument that the declaratory judg-
ment was a contractual arrangement to which ICCTA
preemption ought not apply, finding that the judgment
“merely decided the nature of CSX[]’s property interest in the
subject land” without “chang[ing] the fact that the ICCTA
preempts any attempt to regulate rail transportation.” This
appeal followed.
                          II. Discussion
    We review de novo a district court’s grant of summary
judgment, construing all facts and drawing all reasonable in-
ferences in favor of the non-moving party—here, the
Wedemeyers. See C.G. Schmidt, Inc. v. Permasteelisa N. Am., 825
F.3d 801, 805 (7th Cir. 2016) (citation omitted). Summary judg-
ment is appropriate if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); C.G.
Schmidt, 825 F.3d at 805. We also review de novo the district
court’s determination of the preemptive effect of a federal
statute. Union Pac. R.R. Co. v. Chi. Transit Auth., 647 F.3d 675,
678 (7th Cir. 2011).
    The ICCTA abolished the ICC, transferring its functions to,
and conferring “exclusive” jurisdiction over the regulation of
railroad transportation on, the Surface Transportation Board:
       The jurisdiction of the Board over—
              (1) transportation by rail carriers, and the
              remedies provided in this part with re-
              spect to rates, classifications, rules (in-
              cluding car service, interchange, and
              other operating rules), practices, routes,
8                                                    No. 15-3580

              services, and facilities of such carriers;
              and
              (2) the construction, acquisition, opera-
              tion, abandonment, or discontinuance of
              spur, industrial, team, switching, or side
              tracks, or facilities, even if the tracks are
              located, or intended to be located, en-
              tirely in one State,
       is exclusive. Except as otherwise provided in
       this part, the remedies provided under this part
       with respect to regulation of rail transportation
       are exclusive and preempt the remedies pro-
       vided under Federal or State law.
49 U.S.C. § 10501(b). Congress defined “transportation”
broadly to include railroad property, facilities, and equipment
“related to the movement of passengers or property, or both,
by rail, regardless of ownership or an agreement concerning
use.” Id. § 10102(9). The Act does not define “regulation,” but
we have observed that “Congress’s intent in the Act to
preempt state and local regulation of railroad transportation
has been recognized as broad and sweeping.” Union Pac. R.R.
Co., 647 F.3d at 678 (collecting cases).
    The STB has explained that there are two manners in
which state or local actions could be preempted: (1) categori-
cal, or per se, preemption, and (2) as-applied preemption. See
CSX Transp., Inc.—Petition for Declaratory Order, STB Finance
Docket No. 34662, 2005 WL 1024490, at *2–3 (S.T.B. May 3,
2005). “Categorical preemption occurs when a state … action
is preempted on its face despite its context or rationale,” such
as when state preclearance could be used to deny a railroad
No. 15-3580                                                              9

the ability to conduct some part of its operations, or when a
state regulates matters directly regulated by the STB (e.g., the
construction, operation, and abandonment of rail lines). Un-
ion Pac. R.R. Co., 647 F.3d at 679 (citation omitted); id. at 679
n.3 (citation omitted). An action may be preempted “as ap-
plied” based on the degree of interference that it has on rail-
road transportation—that is, if the action would have the ef-
fect of preventing or unreasonably interfering with railroad
transportation. Id. at 679 (citation omitted).
    CSX argues, and the district court agreed, that because the
Wedemeyers seek to end all rail transport on the track in ques-
tion, their claims are preempted as applied. CSX relies on Un-
ion Pacific Railroad, in which we held that the Chicago Transit
Authority’s condemnation action seeking to take possession
of a portion of railroad property could be a form of regulation
preempted by the ICCTA. 647 F.3d at 682–83. We noted that
Black’s Law Dictionary defined “regulation” as the “act or
process of controlling by rule or restriction,” 647 F.3d at 679
n.2 (citing Regulation, BLACK'S LAW DICTIONARY (9th ed.
2009)); 5 and concluded that because the CTA was seeking to
control a piece of land through condemnation, its action con-
stituted regulation of rail transportation and preemption ob-
tained, id. at 683; see also Norfolk S. Ry. Co. & the Ala. Great S.
R.R. Co.—Petition for Declaratory Order, STB Finance Docket
No. 35196, 2010 WL 691256, at *3 (S.T.B. Feb. 26, 2010) (“using
state eminent domain law to condemn railroad property or
facilities for another use that would conflict with the rail use
is exercising control—the most extreme type of control—over

5 The current edition still defines “regulation” as “[c]ontrol over some-
thing by rule or restriction.” See Regulation, BLACK’S LAW DICTIONARY (10th
ed. 2014).
10                                                            No. 15-3580

rail transportation as it is defined in [49 U.S.C. §] 10102(9)”)
(internal quotation marks omitted).
    The Wedemeyers respond that their claims are not
preempted because their right to ownership and control
sounds in contract—that is, the settlement agreement entered
into voluntarily by CSX and the Clark class, as confirmed by
the declaratory judgment. 6 They also cite to Union Pacific Rail
Co., in which we cautioned:
        Federal preemption does not apply to all situa-
        tions where the use of property prevents or un-
        reasonably interferes with railroad transporta-
        tion; it applies to those situations where a regu-
        lation prevents or unreasonably interferes with
        railroad transportation. If a state or local gov-
        ernment secures the use of property in a way
        that affects railroad transportation by contract
        or other agreement, there is no issue of federal
        preemption; but if it attempts to secure such use
        by regulation (in this case, by condemnation),
        then the possibility of federal preemption may
        arise.
647 F.3d at 682; see also PCS Phosphate Co. v. Norfolk S. Corp.,
559 F.3d 212, 218–19 (4th Cir. 2009) (“Voluntary agreements
between private parties, however, are not presumptively reg-
ulatory acts, and we are doubtful that most private contracts
constitute the sort of ‘regulation’ expressly preempted by the
statute. … Such a broad reading of the preemption clause

6CSX notes in a footnote in its response brief that the settlement agreement
is not in the record on appeal, but does not appear to dispute that the Clark
declaratory judgment is the result of a settlement agreement.
No. 15-3580                                                          11

would make it virtually impossible to conduct business, and
Congress surely would have spoken more clearly, and not
used the word ‘regulation,’ if it intended that result.”) (foot-
note omitted).
    If the declaratory judgment did in fact memorialize CSX’s
agreement to “release all claims to the right of way, and re-
move the track from use and abandon it,” as the Wedemeyers
purport in their briefs, then their claims would likely escape
preemption. The settlement, however, does not deal with the
use of the track in question. Rather, the agreement in Clark, as
memorialized by the declaratory judgment, appears to do no
more than decide the nature of CSX’s property interest in the
land (i.e., fee title versus easement), and the superiority of
property interests as between CSX and the class members.
The declaratory judgment and parties’ briefs confirm that CSX
had only an easement with respect to the tracks at issue. 7
However, the judgment does not establish that CSX ever gave
up their right to enter and use the land. Although paragraph
1 of the judgment does reference “the abandoned railroad cor-
ridor,” this language appears to refer to CSX’s abandonment
of common-carrier service on the track, not a wholesale aban-
donment of all rail service or use of the track.
    The Wedemeyers seek to establish that CSX did in fact
completely abandon its easement (and thus pull us into the
merits of their claims) by citing to two Indiana cases: Consoli-
dated Rail Corp. v. Lewellen, 666 N.E.2d 958 (Ind. Ct. App. 1996),
opinion adopted, 682 N.E.2d 779 (Ind. 1997), and Howard v.

7Exhibit A referenced in paragraph 4 of the declaratory judgment was not
attached to the judgment or included in either parties’ appendices; but
CSX does not dispute the Wedemeyers’ claim that CSX had only an ease-
ment with respect to the track at issue.
12                                                   No. 15-3580

United States, 964 N.E.2d 779 (Ind. 2012). In Lewellen, co-de-
fendant Conrail had discontinued rail service over a corridor
and removed the tracks and materials, and then attempted to
transfer its property interest to Rails to Trails, Inc., a non-
profit that converted unused rail corridors into public trails.
666 N.E.2d at 960. Landowners filed a class-action suit alleg-
ing that Conrail’s easements had extinguished upon Conrail’s
abandonment of the line, such that any rights of way reverted
back to the landowners. Id. at 960–961. The court concluded
that because Conrail held only a right-of-way easement in the
railroad corridor, Conrail’s abandonment of the tracks trig-
gered an extinguishment of the railroad’s interest, with own-
ership reverting to the fee simple owner. Id. at 961–63.
    In Howard, another “rails to trails” case, the Indiana Su-
preme Court responded to a certified question from the Court
of Federal Claims and explained that “[t]he extent of the ease-
ment interest is determined by the purpose served by the
easement.” 964 N.E.2d at 781 (citing McCauley v. Harris, 928
N.E.2d 309, 314 (Ind. Ct. App. 2010); N.Y. Cent. R.R. Co. v.
Yarian, 39 N.E.2d 604, 606 (Ind. 1942)). The Indiana Supreme
Court held that the original purpose of the easement at issue
in Howard was the transportation of goods through operation
of a railroad line, and thus, the easement could not be “recast
for use as a public recreational trail without exceeding the
scope of the easement and infringing the rights of the land-
owners.” Id. at 783; see also id. at 784 (“The transformation of a
line of railway to a public trail imputes a different purpose.
The operation of a railroad line is a commercial enterprise of
transport. Whereas as [sic] public trail is an activity of recrea-
tion, not transportation.”) (internal quotation marks and cita-
tion omitted).
No. 15-3580                                                      13

    The Wedemeyers claim that the original purpose of the
track at issue in this case was for mainline rail service between
Indianapolis and Decatur; thus, they contend, the shift in use
to auxiliary track ought to extinguish the easement. However,
the operative 1876 deed conveying the rail line states that its
purpose is “for the right of way and the use and purpose of
the construction of the Railway of said Company, and the use
and purpose of the track and roadway of said Company.” This
broad language is not limited to mainline or common-carrier
service, and the current use of the line by CSX and the grain
shipper for loading, unloading, and storing cars on the track
falls within the scope of the easement. Moreover, as CSX cor-
rectly points out, both Lewellen and Howard dealt with rever-
sionary property interests after all railroad operations had
ceased and the tracks had been completely abandoned. See
Lewellen, 666 N.E.2d at 960; Howard, 964 N.E.2d at 780. In con-
trast, the parties in our case agree that CSX has continued to
use the track since ending common-carrier service.
     As CSX has not lost its easement, and the declaratory judg-
ment was limited to determining the nature of CSX’s and the
class members’ property interests, the Wedemeyers’ state-law
claims are not contractual in nature. Because the Wedemeyers
seek to control (terminate) use of the track in question
through their lawsuit, their claims are preempted under the
ICCTA. See, e.g., Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521
(1992) (“[State] regulation can be as effectively exerted
through an award of damages as through some form of pre-
ventive relief. The obligation to pay compensation can be, in-
deed is designed to be, a potent method of governing conduct
and controlling policy.” (quoting San Diego Bldg. Trades Coun-
cil v. Garmon, 359 U.S. 236, 247 (1959))); Thomas Tubbs, Tr. of the
Thomas Tubbs Revocable Trust & Individually, & Dana Lynn
14                                                           No. 15-3580

Tubbs, Tr. of the Dana Lynn Tubbs Revocable Trust & Individu-
ally—Petition for Declaratory Order, FD 35792, 2014 WL
5508153, at *4 (S.T.B. Oct. 29, 2014) (“damages awarded under
state tort laws can manage or regulate a railroad as effectively
as the application of any other type of state statute or regula-
tion”); Tubbs v. Surface Transp. Bd., 812 F.3d 1141, 1146 (8th Cir.
2015) (holding that ICCTA preempted state-law tort claims,
including trespass claim, that burdened rail transportation);
Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 (11th Cir. 2010)
(“The ICCTA expressly preempts state remedies involving the
operation of the side track. Therefore, we will not permit land-
owners to circumvent that Congressional decision through
state law nuisance claims.”).
    The Wedemeyers attempt one more dodge of the ICCTA.
They cite to The Atchison, Topeka & Santa Fe Ry. Co.—Abandon-
ment Exemption—in Lyon Cty., KS, No. AB-52, 1991 WL 120344
(I.C.C. June 11, 1991), for the proposition that upon CSX’s
abandonment of the track, the track was no longer “a rail
line,” regardless of whether it was still in active use or not,
and thus fell outside of the STB’s jurisdiction. The Wedemey-
ers did not make this argument in their opening brief, and
thus it is forfeited. See, e.g., United States v. Alhalabi, 443 F.3d
605, 611 (7th Cir. 2006) (arguments raised for the first time in
reply briefs are waived). 8


8
  Moreover, § 32-23-11-6(b) of the Indiana Code provides, “A right-of-way
is not considered abandoned if: (1) rail service continues on the right-of-
way; or (2) the railroad has entered into an agreement preserving rail ser-
vice on the right-of-way.” Ind. Code. § 32-23-11-6(b). CSX’s lease agree-
ment with the grain shipper and the resultant continued use of the track
for storage, loading, and so forth, satisfies both provisions of § 32-23-11-
6(b), which the Wedemeyers fail to address. Numerous cases also clarify
No. 15-3580                                                                  15

    Because the Wedemeyers seek to eject CSX from land with
active, ongoing rail operations, preemption obtains. While the
Wedemeyers may present their case before the Surface Trans-
portation Board, they cannot do so here. Consequently, we
need not address the merits of CSX’s additional and alterna-
tive arguments based on the statute of limitations or equitable
doctrines.
                               III. Conclusion
   For the foregoing reasons, we AFFIRM the district court’s
judgment.




that only complete abandonment (that is, cessation of operations) results
in a track segment no longer being a rail line. See, e.g., Common Carrier Sta-
tus of States, State Agencies & Instrumentalities, & Political Subdivisions, 363
I.C.C. 132, 135, 135 n.2 (I.C.C. 1980) (explaining that “[w]hen a rail line has
been fully abandoned, it is no longer [a] rail line,” but also that a line is
only “fully abandoned after … [among other things] operations have
ceased”); Birt v. Surface Transp. Bd., 90 F.3d 580, 585 (D.C. Cir. 1996) (“sev-
eral concrete actions … may indicate an intent to abandon,” including
“cessation of operations,” “salvage of the track and track materials,” or
“relinquishment of control over the right-of-way”) (citation omitted). And
we have held that auxiliary tracks still in operation remain within the
STB’s exclusive jurisdiction. See United Transp. Union-Ill. Legislative Bd. v.
Surface Transp. Bd., 183 F.3d 606, 612 (7th Cir. 1999) (“transactions involv-
ing spur track do not call for the [STB’s] authorization … but the Board
nonetheless retains exclusive jurisdiction under § 10501(b)(2)”).
