Norfolk Southern Railway Company v. Dille Road Recycling, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0038p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NORFOLK SOUTHERN RAILWAY COMPANY,
Plaintiff-Appellant,
v.
DILLE ROAD RECYCLING, LLC,
Defendant-Appellee.
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No. 22-4037
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:20-cv-01053—J. Philip Calabrese, District Judge.
Argued: December 6, 2023
Decided and Filed: February 26, 2024
Before: BOGGS, READLER, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Tobias S. Loss-Eaton, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant.
David M. Cuppage, MCCARTHY, LEBIT, CRYSTAL & LIFFMAN CO., LPA, Cleveland,
Ohio, for Appellee. ON BRIEF: Tobias S. Loss-Eaton, SIDLEY AUSTIN LLP, Washington,
D.C., for Appellant. David M. Cuppage, MCCARTHY, LEBIT, CRYSTAL & LIFFMAN CO.,
LPA, Cleveland, Ohio, for Appellee. Timothy J. Strafford, STEPTOE & JOHNSON LLP,
Washington, D.C., for Amicus Curiae.
_________________
OPINION
_________________
BOGGS, Circuit Judge. This case concerns a narrow parcel of land (the “Parcel”)—
roughly 600 feet by 32 feet—that runs adjacent to Norfolk Southern Railway Company’s active
rail line in Euclid, Ohio. No one disputes that Norfolk owns the Parcel. But Dille Road
>

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Recycling, which owns the property on the other side of the Parcel, has occupied and used the
Parcel for nearly two decades. A few years ago, the parties began an out-of-court dispute over
the Parcel’s use. After negotiations stalled, the parties took the matter to federal court. Dille
sought adverse possession of the Parcel or, alternatively, a prescriptive easement. Norfolk
sought a declaration that Dille’s property claims were preempted by the Interstate Commerce
Commission Termination Act (ICCTA). The district court held that Dille’s prescriptive-
easement claim was not preempted, and then granted Dille its easement. We disagree with the
district court’s threshold conclusion. Because federal law does preempt Dille’s state-law
prescriptive-easement claim, we reverse.
I. BACKGROUND
A. The Parcel
The Parcel is a .43-acre strip that runs parallel to Norfolk’s active railway, which runs,
roughly, from Cleveland, Ohio, to Erie, Pennsylvania. It is a thin rectangle measuring 614 feet
long on its longest side and 32 feet wide.
Dille owns the property adjacent to the Parcel on the opposite side, where it conducts a
scrap-metal recycling business (the “Property”). Dille has owned the Property since 2016.
Before that, beginning in 2007, Dille leased the Property from G.R.K. Inc. G.R.K obtained the
Property in 1991. It is undisputed that, since the early 90s, Dille and its predecessors have used
the land (including the Parcel) exclusively.
A fence and gate have separated the Parcel from the rest of Norfolk’s rail corridor since
at least 1994. In 2007, Dille spent around $10,000 to rebuild the fence. The fence is a solid,
privacy-style wooden barrier. In 2018, Dille installed more fencing—1,100 feet of 8-foot-tall
chain link fencing and additional gates. Dille says that the Parcel must be completely fenced off
because it is “a requirement of the City of Euclid to operate a recycling facility [and] there are
. . . safety and security reasons to enclose [the Parcel] with a fence.”
Dille uses the Parcel primarily as a weighing station and scrap dump. Shortly after
leasing its property from G.R.K, Dille installed a $50,000 truck scale on the Parcel. To access

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the scale, trucks enter and exit via the southwest end of the Parcel. Dille says that this scale is
essentially immovable, as “[t]here is no other practical or functional location on [the Property] to
install [it].” The scale is buried in the ground at surface level. Moreover, Dille says there is
nowhere else on the Property with a “long enough approach . . . for trucks to . . . maneuver on
and off the scale.”
Not surprisingly, Dille says that it requires the entire Parcel to operate its recycling
business. Roughly two-thirds of the Parcel (the part with the scale and approach) are unsuitable
for shared use. That portion of the Parcel “would have to be kept wide open unobstructed, no
structures . . . to be of shared use with Norfolk . . . .” Despite this, Dille has averred that it is
“willing and able to share” the Parcel with Norfolk. Dille suggests that the parties can achieve
shared use of the Parcel because
[Dille] would provide the railroad with access to [the Parcel] including a key to
open the gate which currently secures [the Parcel]. [Dille] would also provide the
railroad with the name and phone number of an employee to contact in the event
of any emergency or urgent situation. In the event the railroad needs space to
store equipment or machinery . . . [Dille] could store equipment and machinery at
the north end of the Property away from the truck scale and location used by
trucks to maneuver on and off the scale.
Norfolk asserts that the latter concession regarding equipment storage is essentially meaningless
because the section of the Parcel that Dille offers up is “very marshy and wet” and, according to
Dille, unsuitable for vehicles (much less any permanent structures). That section of the property
is where Dille dumps materials, and it is essentially covered in scrap.
B. The Dispute
Norfolk first contacted Dille about ownership of the Parcel in 2015. A Dille
representative responded and said they would look into the property lines. After further
communications, a Norfolk representative visited the Parcel in January 2016. In August 2016,
Dille purchased the Property from G.R.K.
In October 2016, Norfolk asked Dille to remove some debris that had fallen over a
deteriorated portion of the fence line between the Parcel and Norfolk’s rail line. Dille agreed to

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remove the debris, re-establish the fence line, and “make sure [it] doesn’t happen again in the
future.”
In 2019, Norfolk again contacted Dille about some encroachment onto its rail line. Dille
conducted a boundary survey, which confirmed that the Parcel belongs to Norfolk. The parties
attempted to negotiate a solution—Norfolk offered to lease the Parcel to Dille and Dille offered
to buy the Parcel outright. After a few months of stalled negotiations, Dille told Norfolk that it
would sue for adverse possession and prescriptive easement and provided Norfolk a copy of a
draft complaint.
In May 2020, Norfolk sought a declaratory judgment in federal district court that federal
law preempts Dille’s claims of adverse possession and prescriptive easement as to the Parcel.
Dille counterclaimed and sought a judgment that it has a non-exclusive easement over the Parcel.
Dille also claimed that laches bars Norfolk from restricting Dille’s use of the Parcel. Norfolk
moved for judgment on the pleadings.
Relying on Surface Transportation Board (STB) decisions, the district court held that the
ICCTA preempts Dille’s adverse-possession claim. The court adopted the reasoning of the STB
that adverse-possession claims would “allow[] landowners to carve strips of land off railroad
rights of way, undermining interstate commerce.” The court noted that even though the STB and
the Sixth Circuit have not treated adverse-possession claims as categorically preempted, the
authorities “conclude[], almost categorically, that adverse possession burdens railroad property.”
Accordingly, the court granted Norfolk’s motion as to Dille’s adverse-possession claim.
The district court then decided that, because the appropriate preemption analysis for
prescriptive-easement claims is an as-applied analysis, it could not adjudicate Dille’s
prescriptive-easement claim at the pleadings stage. “[U]nlike adverse possession,” the court
wrote, “a prescriptive easement does not take railroad property [but] allows co-existing rail and
non-rail uses.” The court acknowledged that the parties agree that Dille’s use of the parcel has
been exclusive, but “they are silent on whether Dille Road Recycling’s use of the property
necessarily excludes Norfolk Southern and on whether Dille Road Recycling’s use burdens
Norfolk Southern, rail use of the property, or interstate commerce more generally.” The court

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reasoned that, because the relevant authorities often find that non-exclusive easements are not
preempted, it was improper to decide this issue at the pleadings stage. It noted that “[i]f the facts
turn out to show that [Dille] seeks to exclude Norfolk Southern from the property altogether,
judgment in favor of the railroad may be appropriate.”
On cross-motions for summary judgment, the district court held that Dille’s use of the
Parcel does not entirely exclude Norfolk and reasoned that “inconvenience does not, as a matter
of law, elevate non-exclusive or shared use of property to an unreasonable interference with
railroad operations such that the Termination Act preempts State remedies.” Once the court held
that the easement was non-exclusive, it applied the STB’s decision in Jie Ao and Xin Zhou—
Petition for Declaratory Order, No. FD 35539, 2012 WL 2047726, at *6 (STB June 4, 2012),
that non-exclusive easements “are not preempted, as long as they do not impede rail operations
or pose undue safety risks.”
Once the district court dispensed with Norfolk’s preemption argument, it turned to Dille’s
request for a prescriptive easement. Noting that Norfolk did not dispute that Dille’s use of the
Parcel likely fits the criteria for an easement under Ohio law, the court held that the elements
were indeed met (open, notorious, adverse, continuous, and possessed for at least 21 years).
Because the court ruled that Dille had a valid easement, it did not reach Dille’s arguments of
easement by estoppel and laches.
Norfolk now challenges the district court’s summary-judgment order and argues that
Dille’s prescriptive-easement claim is preempted under federal law. The STB and the federal
courts have concurrent jurisdiction to decide issues of federal preemption. Adrian & Blissfield
R. Co. v. Vill. of Blissfield, 550 F.3d 533, 539 n.4 (6th Cir. 2008). We review de novo the district
court’s grant of summary judgment as well as issues of preemption. State Farm Bank v.
Reardon, 539 F.3d 336, 340 (6th Cir. 2008).

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II. DISCUSSION
A
Congress replaced the Interstate Commerce Commission with the STB when it enacted
the ICCTA in 1995. Congress included an express-preemption clause in the ICCTA that gave
the STB exclusive jurisdiction over most activities directly related to rail transportation:
(1) transportation by rail carriers, and the remedies provided in this part with
respect to rates, classifications, rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of
spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are
located, or intended to be located, entirely 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
provided under Federal or State law.
49 U.S.C. § 10501(b). The term “transportation” is broad. It includes a “warehouse,
. . . property, facility, instrumentality, or equipment of any kind related to the movement of
passengers or property, or both, by rail, regardless of ownership or an agreement concerning
use.” Id. § 10102(9)(A). Further, it includes “services related to that movement . . . and
interchange of passengers and property.” Id. § 10102(9)(B). A “railroad” means “a switch, spur,
track, terminal, terminal facility, and a freight depot, yard, and ground, used or necessary for
transportation.” Id. § 10102(6)(C).
The ICCTA’s preemption scheme is vast, but it is not complete. The ICCTA “preempts
all state laws that may reasonably be said to have the effect of managing or governing rail
transportation, while permitting the continued application of laws having a more remote or
incidental effect on rail transportation.” Adrian & Blissfield, 550 F.3d at 539 (quoting N.Y.
Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir. 2007)) (cleaned up).
Although there is a presumption under the Supremacy Clause that Congress does not intend to
preempt state law, “an assumption of nonpre-emption is not triggered when the State regulates in
an area where there has been a history of significant federal presence.” R.R. Ventures, Inc. v.
Surface Transp. Bd., 299 F.3d 523, 562 (6th Cir. 2002) (quoting United States v. Locke, 529 U.S.
89, 108 (2000)). Accordingly, courts in this circuit and beyond have recognized that Congress

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intended to implement a sweeping preemption scheme in the ICCTA. See, e.g., CSX Transp.,
Inc. v. City of Sebree, 924 F.3d 276, 283 (6th Cir. 2019) (“It is difficult to imagine a broader
statement of Congress’[s] intent to preempt state regulatory authority over railroad operations.”
(cleaned up)).
In general, we “must give considerable weight and due deference to the [STB’s]
interpretation of the statutes it administers unless its statutory construction is plainly
unreasonable.” RLTD Ry. Corp. v. Surface Transp. Bd., 166 F.3d 808, 812 (6th Cir. 1999)
(quoting Brotherhood of Locomotive Eng'rs v. ICC, 909 F.2d 909, 912 (6th Cir. 1990)). Though
“agencies have no special authority to pronounce on pre-emption absent delegation by
Congress,” an agency’s thorough, consistent, and persuasive interpretations are accorded
significant weight. Wyeth v. Levine, 555 U.S. 555, 577 (2009). To that end, we have adopted the
STB’s approach to determine the extent to which the ICCTA preempts any particular state
action. Adrian & Blissfield, 550 F.3d at 539 (“[T]he STB was authorized by Congress to
administer the [ICCTA] and is therefore uniquely qualified to determine whether state law
should be preempted by the [ICCTA].” (cleaned up)).
Our preemption analysis distinguishes between two types of preempted state actions.
First, some actions are categorically (facially) preempted because they “directly conflict with
exclusive federal regulation of railroads.” CSX Transp., Inc.—Pet. for Declaratory Ord., No. FD
34662, 2005 WL 1024490, at *3 (STB May 3, 2005). These state actions are a per se
unreasonable interference with interstate commerce, so “the preemption analysis is addressed not
to the reasonableness of the particular state or local action, but rather to the act of regulation
itself.” Adrian & Blissfield, 550 F.3d at 540 (quoting CSX Transp., 2005 WL 1024490, at *3).
There are two broad categories that are categorically preempted regardless of the facts or
circumstances:
[(1)] any form of state or local permitting or preclearance that, by its nature, could
be used to deny a railroad the ability to conduct some part of its operations or to
proceed with activities that the Board has authorized. [And]
[(2)] state or local regulation of matters directly regulated by the Board—such as
the construction, operation, and abandonment of rail lines; railroad mergers, line
acquisitions, and other forms of consolidation; and railroad rates and service.

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CSX Transp., 2005 WL 1024490, at *2. Second, actions that are not categorically preempted can
be preempted as applied. This as-applied preemption analysis “requires a factual assessment of
whether that action would have the effect of preventing or unreasonably interfering with railroad
transportation.” Adrian & Blissfield, 550 F.3d at 540 (quoting New Orleans & Gulf Coast Ry.
Co. v. Barrois, 533 F.3d 321, 332 (5th Cir. 2008)).
Though we have not previously examined ICCTA preemption in the context of
easements,1 the STB and our sister circuits have. In short, whether an easement is preempted is a
factual determination based on the specific nature of the easement sought and how it would
affect railroad operations broadly. On one end of the spectrum are routine, nonexclusive
easements such as at-grade crossings and aerial easements. These are generally not preempted.
See Jie Ao & Xin Zhou, 2012 WL 2047726, at *6 (citing E. Ala. Ry.—Pet. for Declaratory
Order, No. FD 35583 (STB Mar. 9, 2012)). On the other end, easements that are exclusive or
deemed adverse possession by another name are often preempted. See 14500 Ltd. LLC—Pet.
For Declaratory Ord., No. FD 35788, 2014 WL 2608812, at *4–5 (STB June 4, 2014).
B
Our first task is to decide under which framework we must analyze ICCTA preemption in
the context of Dille’s prescriptive-easement claim.2 Norfolk argues that Dille’s prescriptive
easement is preempted whether this court analyzes it under a categorical or as-applied
framework, but it spends a considerable amount of time arguing that categorical preemption
applies. Dille says that the proper analysis is the as-applied framework.3 We hold that the
1This court has discussed ICCTA preemption in other contexts not particularly relevant here. See Tyrrell v.
Norfolk S. Ry. Co., 248 F.3d 517, 523 (6th Cir. 2001) (discussing ICCTA’s interplay with the Federal Railroad
Safety Act, but only analyzing FRSA preemption); Cuyahoga Falls & Hudson Ry. Co. v. Vill. of Silver Lake, 122 F.
App’x 845, 847 (6th Cir. 2005) (analyzing ICCTA preemption, but in the context of whether Appellants were even a
“rail carrier” or their claims even involved interstate rail networks); R.R. Ventures, Inc. v. Surface Transp. Bd.,
299 F.3d 523, 551 (6th Cir. 2002) (discussing ICCTA preemption in the context of rail-line sales, contracts, and
relevant Ohio state statues); City of Sebree, 924 F.3d at 281 (analyzing preemption of a state ordinance governing
rail-crossing maintenance).
2Dille does not argue for adverse possession on appeal.
3Dille also argues that Norfolk waived its argument for categorial preemption because it failed to bring it
up in its summary-judgment briefing. Of course, this court reviews issues of federal preemption de novo and can
entertain Norfolk’s argument about categorial preemption on appeal. Also, Dille is actually arguing that Norfolk
forfeited its argument.

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proper evaluation of ICCTA preemption for prescriptive-easement claims is the as-applied
framework.
An easement is a sort of “possessory action [that] invokes only state property laws.” See
Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 413 (5th Cir. 2010). It is not a form
of state or local permitting or preclearance that would deny STB-authorized rail operations, nor
is it state regulation of matters directly regulated by the STB. See CSX Transp., 2005 WL
1024490, at *2. If it were, it would be a per se interference with interstate commerce. In that
case, it would be categorically preempted because that standard focuses on the act of regulating
itself, as opposed to the reasonableness of any individual state action. But an easement is not the
type of state action that, by the very act of regulation, interferes with the STB’s exclusive
jurisdiction. It is, however, the type of state action that can, in some circumstances,
unreasonably interfere with railroad transportation. Accordingly, challenges to easements must
be analyzed as applied.
The STB’s decisions concerning easements support this distinction. In Jie Ao & Xin
Zhou, the STB distinguished between adverse-possession claims (taking railroad property
outright) and prescriptive-easement claims (allowing for the possibility of shared use), but still
analyzed both claims under the as-applied framework. With respect to the adverse-possession
claim, the STB found that federal preemption applied, based on the facts, because it had the
“effect of preventing or unreasonably interfering with railroad transportation.” Jie Ao & Xin
Zhou, 2012 WL 2047726, at *6. That language tracks the language of the as-applied preemption
standard. See Adrian & Blissfield, 550 F.3d at 540. The STB then left no doubt as to the proper
analysis for easement claims:
Unlike an adverse possession claim, a prescriptive easement does not take railroad
property outright, and it is often possible for an easement that crosses over, under,
or across a right-of-way, to co-exist with active rail operations without necessarily
interfering with the latter. Because such easements do not affect the rail network
in the same way as carving out property that is part of a railroad, and because a
prescriptive easement may still allow the railroad to access the property, the
Board has previously found that property disputes involving prescriptive
easements are generally best addressed by state courts applying state law.

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Jie Ao & Xin Zhou, 2012 WL 2047726, at *7; accord 14500 Ltd., 2014 WL 2608812, at *5
(finding that an “exclusive easement” action was, for all intents and purposes, an adverse-
possession claim that was preempted under an as-applied analysis and using the language of
interference and the “effect” on rail transportation).
Further, the STB’s decision in City of Lincoln—Petition for Declaratory Order is
particularly instructive. No. FD 34425, 2004 WL 1802302 (STB Aug. 11, 2004). The issue
there was whether the city’s eminent-domain action over a 20-foot strip of rail right-of-way was
preempted because it would leave insufficient room for “storage, loading, and unloading, as well
as access to the track for maintenance and derailment response.” City of Lincoln v. Surface
Transp. Bd., 414 F.3d 858, 861 (8th Cir. 2005). The STB clearly utilized an as-applied analysis,
based on the specific facts of the case, in determining whether the state action was preempted:
We conclude, based on the record, that Lincoln has not met that burden. Lincoln
has not proffered convincing evidence that LLC can satisfy its present and future
rail transportation needs using less than the full width of its right-of-way, or that
the proposed trail can safely be placed so near LLC’s active rail line. Because
Lincoln has not made such a showing, we cannot declare, as Lincoln requests, that
its proposed taking will not unduly interfere with interstate commerce.
City of Lincoln, 2004 WL 1802302, at *4. The Fifth Circuit agreed that the STB analyzed this
attempted taking as applied. Franks, 593 F.3d at 412 (“The [8th Circuit’s] Lincoln opinion . . .
sustained the STB’s application of an as-applied test . . . .”).4
Norfolk relies heavily on Skidmore v. Norfolk Southern Railway Company, 1 F.4th 206
(4th Cir. 2021), for the proposition that Dille’s easement claim is categorically preempted
because it conflicts with potential future railroad use. There, the Fourth Circuit held that a state-
law property claim was “completely” preempted. The court relied on the STB’s decision in Jie
Ao & Xin Zhou and noted that the STB has “unequivocally held that attempts to adversely
4In a related matter, the STB again refused to apply categorical preemption to a condemnation matter.
Lincoln Lumber Co.—Pet. for Declaratory Ord.—Condemnation of R.R. Right-of-Way for A Storm Sewer, No. FD
34915, 2007 WL 2299735, at *2 (Aug. 10, 2007) (“[N]either the court cases, nor Board precedent, suggest a blanket
rule that any condemnation action against railroad property is impermissible.”). The takeaway here is that even
eminent domain and condemnation actions are analyzed on a case-by-case basis. Courts and the STB certainly tend
to disallow state actions that would completely deprive rail carriers of the use of a rail corridor, but they still look at
those state actions through an as-applied lens.

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possess a railroad’s property constitute efforts to govern or manage rail transportation.” Id. at
213.
But the Skidmore court did not expressly state whether it was conducting a categorical or
as-applied analysis. The language it used, however, more than suggests that it was looking at the
state-law claims of adverse possession and prescriptive easement through an as-applied lens:
Skidmore spills much ink arguing that the Termination Act can’t completely
preempt her quiet title claims because the Act doesn’t preempt (1) “all state law
causes of action,” or (2) all “state-law quiet title” claims. Those general
statements may be true, but they miss the point. Norfolk Southern doesn’t need to
show that § 10501(b) displaces all state law claims brought against railways or all
quiet title actions in every context. Rather, it must establish only that the
Termination Act displaces Skidmore’s particular claims because, in this
particular case, they effectively regulate rail transportation when brought against
railroads like Norfolk Southern.
Id. at 214 (emphasis added). In any event, Skidmore does not support the proposition that the
ICCTA categorically preempts Dille’s easement claim.
Norfolk broadly argues that Dille’s proposed “non-exclusive” easement is, for all intents
and purposes, entirely exclusive because it does not truly allow for shared use of the Parcel.
Even assuming that is true, it is an argument for preemption under an as-applied analysis and has
no bearing on whether prescriptive easements are the type of state actions that are categorically
preempted. See Franks, 593 F.3d at 411 (“[Easement] laws are not meant to regulate railroad
transportation, though at times they may have an incidental effect on railroad transportation.”).
Accordingly, we proceed with an as-applied analysis.
C
The touchstone of the as-applied preemption analysis is “whether the state regulation
imposes an unreasonable burden on railroading.” Adrian & Blissfield, 550 F.3d at 541 (internal
citation omitted). A state regulation is permissible if it (1) is not unreasonably burdensome and
(2) does not discriminate against railroads. Ibid. (citing Jackson, 500 F.3d at 253). As to
discrimination, the state action must address state concerns generally and not target the railroad
industry. Ibid. Neither side argues that the granting of easements targets the railroad industry—

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nor could they argue that a generally applicable property remedy targets rail operations.
Accordingly, this matter does not involve nor require an analysis of discrimination.
So the issue here is whether Dille’s prescriptive easement imposes an unreasonable
burden on railroading. The STB has defined this standard as whether the particular state action
has the effect of preventing or unreasonably interfering with rail transportation. 14500 Ltd. LLC,
2014 WL 2608812, at *4. However you slice it, the question is one of reasonableness based on
the specific facts of the case.
Reasonableness, then, is a question of the scope of the “taking.” As to the easement
holder’s use of the property, both exclusivity and disparity of use are relevant factors. The more
a property action excludes a rail carrier and takes a property for a conflicting use, the more likely
the action will be preempted. On one end of the spectrum are prescriptive easements that are
entirely exclusive. These are preempted because they truly “seek[] to deprive the railroad of its
property” and are essentially the same as adverse-possession claims. See id. at *5 (finding that
an “exclusive prescriptive easement” was preempted because the claimant sought to exclude the
railroad from the property, a half-acre parcel adjacent to a rail line); Skidmore, 1 F.4th at 215
(holding that a landowner’s quiet-title claim for a prescriptive easement was preempted because
it was, for all intents and purposes, a claim for adverse possession).5 On the other side are
routine, non-conflicting uses of railroad property like non-exclusive easements for at-grade
crossings and power lines. These types of easements are generally not preempted unless, for
some reason, they impede rail operation or pose undue safety risks. See Jie Ao & Xin Zhou,
2012 WL 2047726, at *7 (finding that a prescriptive-easement claim for passage over railroad
right-of way was not necessarily preempted because the easement could possibly “co-exist with
active rail operations”); Maumee & W. R.R. Corp. & RMW Ventures, LLC— Pet. for Declaratory
Ord., No. FD 34354, 2004 WL 395835, at *2 (STB Mar. 2, 2004) (“[R]outine, non-conflicting
5See also Union Pac. R.R. Co. v. Chicago Transit Auth., 647 F.3d 675, 680–81 (7th Cir. 2011) (holding
that a state condemnation action seeking “perpetual easement” over railroad right-of-way [a 2.8-mile strip five feet
adjacent to “heavy railroad traffic”] was preempted even though the state had a contractual agreement with the
railroad and the use of the property in question would not change after the condemnation action—the CTA used the
leased right-of-way to operate its own transit lines); City of Lincoln, 414 F.3d at 862 (holding that a city’s proposed
taking of railroad right-of-way to use as a bicycle and pedestrian trail [and for storm-sewer installation] was
preempted); Norfolk S. Ry. Co. & the Ala. Great S. R.R. Co.—Pet. for Declaratory Ord., No. FD 35196, 2010 WL
691256, at *1 (STB Feb. 26, 2010) (holding that a city’s plan to condemn railroad corridor for park was preempted).

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uses, such as non-exclusive easements for at-grade road crossings, wire crossings, sewer
crossings, etc., are not preempted so long as they would not impede rail operations or pose undue
safety risks.”).6
Dille does not seek to control, remove, or otherwise interfere with any actual rail lines.
But it does seek more than the preservation or establishment of crossings over rail property.
Dille’s easement no doubt “takes” rail corridor for uses other than rail operations—but the
determinative inquiry is to what degree. And to answer that, we must decide how exclusive
Dille’s easement really is, to what extent Dille’s use of the Parcel conflicts with Norfolk’s, and
whether shared use of the Parcel is even possible. And in the end, would Dille’s easement
amount to an unreasonable burden on rail transportation?
Dille says that it does not have—nor does it want—an “exclusive” easement over the
Parcel. But the record and the relevant case law confirms that Dille’s prospective easement
would be so exclusive and conflicting that it would be essentially adverse possession by another
name. The Parcel is, and must remain, fenced off to the exclusion of Norfolk. Dille’s site
manager cited two independent reasons for this—site security and Ohio law. But no matter how
Dille arranges to allow Norfolk to access the Parcel or, hypothetically, store anything on it,
Norfolk is quite literally excluded from the entire Parcel by a fence. Offering Norfolk a key to a
gate or a contact number for emergency access doesn’t change the fact that Dille seeks to possess
Norfolk’s rail corridor behind a locked fence. Moreover, Dille admits that at least two-thirds of
the parcel cannot, under any circumstances, accommodate shared use with Norfolk. The lone
fact that Dille could, in theory, allow Norfolk to store materials on a small part of the Parcel does
not take this property remedy out of the realm of adverse possession. Despite Dille’s best
efforts, we see no credible argument that this prescriptive easement is anything but exclusive and
incompatible with rail use.
6See also Franks, 593 F.3d at 415 (holding no preemption for four private railroad-crossing paths because
the railroad could not prove that the crossings at issue affected railroad transportation); Barrois, 533 F.3d at 333
(holding no preemption of Louisiana law allowing for the establishment of easements in the form of private, at-
grade rail crossings).

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But the district court gave considerable weight to Dille’s assertion that it sought a
nonexclusive easement. There, it erred. By granting Dille its easement, the district court
essentially ignored the practical distinctions that courts and the STB draw between different
“takings” of property. The court allowed Dille’s technically-accurate-but-essentially-
meaningless declaration of non-exclusivity to rule the day. Although exclusivity is an important
factor of the preemption analysis when courts and the STB consider property disputes, it is not
the sole factor. The nature of the use itself, and whether it is “routine” and “non-conflicting,” is
just as important. See Jie Ao & Xin Zhou, 2012 WL 2047726, at *7.
In 14500 Ltd. LLC, the STB assessed a similar situation. 2014 WL 2608812, at *5.
There, a trucking company owned a property adjacent to CSX Transportation’s rail yard. In
dispute was a half-acre parcel that CSX owned, but which the trucking company had been
occupying openly and continuously for the easement period under Ohio law. The trucking
company claimed that its use of the parcel was essential to its operation and had fenced off the
parcel, separating it from the rail yard. The trucking company petitioned for a declaratory order
that it possessed the parcel by either adverse possession or exclusive prescriptive easement.
The STB, in accord with a federal district court, found that both claims were preempted.
It found that the exclusive-prescriptive-easement claim was the same as the adverse-possession
claim because the trucking company sought to exclude CSX from the property. Ibid. According
to the STB, the difference between that case and cases where easements were not preempted was
that there, the easement “could [not] possibly coexist with rail operations.” Ibid.
Here, unlike in 14500 Ltd., Dille has said that it seeks a nonexclusive easement and has
offered up some ways it believes the parties could achieve shared use of the Parcel or, in other
words, coexistence. But the record indicates that coexistence is not really possible. The sort of
coexistence that the term “easement” suggests is simply inapplicable to the reality of this
situation. As the STB outlined in Jie Ao & Xin Zhou:
[A] prescriptive easement does not take railroad property outright, and it is often
possible for an easement that crosses over, under, or across a right-of-way, to co-
exist with active rail operations without necessarily interfering with the latter. . . .
[S]uch easements do not affect the rail network in the same way as carving out
property that is part of a railroad . . . .

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No. 22-4037 Norfolk S. Ry, Co. v. Dille Rd. Recycling, LLC Page 15
2012 WL 2047726, at *7. And this makes sense for the type of easement desired in that case—
passage over railroad property via a roadway. But here, fencing off an entire parcel—the
majority for exclusive use—is, for all intents and purposes, “carving out property that is part of a
railroad.”
The two aforementioned City of Lincoln cases are also instructive, even though they
concerned attempted condemnations. There, the city wanted to take a portion of rail corridor for
a pedestrian trail. In a related matter, it also wanted to condemn the property for a storm sewer.
The STB found that the pedestrian trail was preempted but the storm sewer was not. The issue
with the trail was whether “losing a 20-foot strip from the right of way along four blocks of the
line would leave insufficient room for [the railroad’s] storage, loading, and unloading, as well as
access to the track for maintenance and derailment response.” City of Lincoln, 414 F.3d at 861
(affirming the STB). The issue with the storm sewer was whether its construction would
interfere with rail operations even though the surface disruption would only be temporary. See
Lincoln Storm Sewer, 2007 WL 2299735, at *2–3.
This distinction matters. Surface use of rail corridor, even to the partial exclusion of the
railroad, presents enough interference in rail operations to trigger preemption (the city was only
proposing a narrowing of the right-of-way, see City of Lincoln, 2004 WL 1802302, at *4). And
a state action avoids preemption when the railroad could, in theory, reclaim use of its property.
See Franks, 593 F.3d at 412 (“Why the Lincoln storm sewer project was less disruptive than the
recreational trail was not explained. Likely the surface use would only be during construction;
the storm sewer would be underground; the railroad eventually would reclaim use of its entire
surface right of way.”). Here, Dille’s easement no doubt excludes Norfolk and Norfolk has no
conceivable way to reclaim any real use of its own property.
Of course, Dille argues that its easement would be nonexclusive and that it is not taking
the property at all. But again, the STB (and the Fifth Circuit) acknowledged that nonexclusive
easements are, generally, for things like “at-grade road crossings, wire crossings, sewer
crossings, etc.”—things that do not “take” rail property at all. Ibid. (quoting Lincoln Storm
Sewer, 2007 WL 2299735, at *2). These two cases involving two different state actions
concerning the same piece of rail property demonstrate different ends of a spectrum. And simply

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put, Dille’s proposed use of the Parcel is much closer to the pedestrian-trail-taking side of that
spectrum.
Dille does not cite any case before the federal courts or the STB where part of an active
rail corridor was used as exclusively and incongruously as Dille seeks here. Instead, it raises
three main contrary arguments: (1) the easement is not exclusive; (2) the easement is not
“draconian” enough to warrant preemption; and (3) Norfolk has never explained how limited
access would unreasonably burden railroad operations.
As to exclusivity, calling something nonexclusive does not magically make it
nonexclusive. Moreover, exclusivity is not the only consideration. As to whether the easement
is “draconian,” this argument relies on language from cases involving statutes that specifically
attempted to regulate rail transportation. See Adrian & Blissfield, 550 F.3d at 541 (“Regarding
the unreasonable-burden prong, the substance of the regulation must not be so draconian that it
prevents the railroad from carrying out its business in a sensible fashion.” (cleaned up)). Here,
the issue is the granting of a prescriptive easement. Dille is correct that the ICCTA preemption
analysis considers statutes and judicial remedies under the same “state action” umbrella, but that
does not mean that the word “draconian” is the paramount standard here. Courts and the STB
use different language (exclusivity, conflicting use) when discussing property remedies like
easements.
Finally, Dille asserted—at various points in its briefing and at oral argument—that
Norfolk has not identified any actual plans for using the Parcel, nor how Dille’s past, present, or
future use has, or would hypothetically, unreasonably burden rail operations. This argument
misunderstands the relevant case law and, ultimately, the policy behind ICCTA preemption. The
question is whether the state action (here, granting Dille an easement) has the effect of
preventing or unreasonably interfering with rail transportation. Because “transportation” is
defined broadly, see 49 U.S.C. § 10102(9)(A)–(B), the possession or conflicting use of railroad
property can be burdensome even if the railroad is not currently using the contested property.
See Jie Ao & Xin Zhou, 2012 WL 2047726, at *6 (“Even if the property . . . is not currently being
used as an active line of railroad . . . loss of a 35 by 135-foot strip . . . would unreasonably
interfere with potential reactivation in the future and prevent entry onto the property for rail-

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No. 22-4037 Norfolk S. Ry, Co. v. Dille Rd. Recycling, LLC Page 17
related maintenance . . . .”); see also Union Pac., 647 F.3d at 681 (“Even if the property was not
being used and Union Pacific had no immediate plans to use the property, a taking of this
property would still prevent Union Pacific from using it for railroad transportation in the
future.”).7
Here, in holding that Norfolk’s lack of use or immediate plans for use was a dispositive
factor, the district court relied on an inapposite decision from the Middle District of
Pennsylvania, Zayo Grp., LLC v. Norfolk S. Ry. Co., No. 1:21-CV-600, 2022 WL 243897 (M.D.
Pa. Jan. 25, 2022). In Zayo, the court determined that Norfolk had only presented evidence of
“hypothetical future inconvenience” and thus failed to establish undue burden on rail operations.
Id. at *3. But the issue there was an aerial easement for overhead fiberoptic cables, which were
minimally burdensome under any potential railroad use. Ibid. (“The aerial easement sought by
Zayo does not cross over the railroad tracks; it merely runs parallel to the track for less than a
mile . . . . It does not require placement of new telephone poles or any other structural
changes.”). That case clearly concerned one of the “routine, nonexclusive” easements that
generally avoid preemption. Here, it strains credulity to argue that Dille’s easement presents as
minimal a chance of interference with rail operations as an aerial easement.
III. CONCLUSION
We hold that the ICCTA preempts Dille’s prescriptive-easement claim. Accordingly, we
REVERSE the decision of the district court and REMAND for further proceedings consistent
with this opinion.
7These cases dealt with adverse possession and condemnation, respectively. But the same logic and policy
applies to a prescriptive-easement claim that, for all intents and purposes, takes railroad property for exclusive and
conflicting use.

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