UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ NORFOLK SOUTHERN RAILWAY COMPANY, │ Plaintiff-Appellant, │ > No. 22-4037 │ v. │ │ DILLE ROAD RECYCLING, LLC, │ Defendant-Appellee. │ ┘

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 No. 22-4037 Norfolk S. Ry, Co. v. Dille Rd. Recycling, LLC Page 2

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 barr