Central Puget Sound Regional Transit Authority, also known as Sound Transit v. LEVEL 3 COMMUNICATIONS, LLC, a Delaware corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTRAL PUGET SOUND REGIONAL
TRANSIT AUTHORITY, also known as
Sound Transit,
Plaintiff - Appellee,
v.
LEVEL 3 COMMUNICATIONS, LLC, a
Delaware corporation,
Defendant - Appellant.
No. 10-36061
D.C. No. 2:10-CV-00749-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted April 12, 2012
Seattle, Washington
Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.
Level 3 Communications, LLC (“Level 3”) appeals the grant of summary
judgment to Central Puget Sound Regional Transit Authority (“Sound Transit”) in
FILED
MAY 07 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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this diversity action pursuant to Washington State law. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
The district court concluded correctly that Burlington Northern Santa Fe
Railway Co. (“BNSF”) both retained for itself and conveyed to Sound Transit the
benefit of the Level 3 easement. Section 1 of the Assignment and Assumption of
Third Party Leases/Easements/Licenses (“Assignment”), read together with
Section 11 of the Master Right-of-Way Agreement (“Agreement”), authorizes both
BNSF and Sound Transit to demand relocation of Level 3’s facilities at Level 3’s
expense for the relocation or placement of railroad tracks. Because of the unfair
doubling of Level 3’s burden pursuant to the Agreement, the district court correctly
deemed Section 1 of the Assignment unenforceable.
As the district court concluded, both BNSF and Sound Transit cannot hold
the benefit of the Level 3 easement simultaneously. We affirm the district court’s
holding that, pursuant to the law of Washington, the benefit of the Level 3
easement ran with the land to Sound Transit. Bell v. Gara Fraxa Co., 255 P. 144,
146 (Wash. 1927); Crisp v. VanLaeken, 122 P.3d 926, 928 (Wash. Ct. App. 2005).
Contrary to Level 3’s arguments, BNSF never expressly retained the Level 3
easement. See Cogswell v. Cogswell, 142 P. 655, 657 (Wash. 1914). Moreover,
Sound Transit’s intended use of the property as a commuter line, instead of a

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freight line, did not render the assignment of the Level 3 easement invalid.
Nothing in the Agreement prevented BNSF, or its successors, from converting the
property from freight to commuter use, and the change in use did not alter Level
3’s burden in a material way. Nor did the Agreement limit the events that can
trigger the need to relocate or place railroad tracks.
We uphold the district court’s reasonable interpretation of Section 11 of the
Agreement, which gives meaning to each ground requiring the relocation of fiber-
optic facilities at Level 3’s expense. See Newsom v. Miller, 258 P.2d 812, 814
(Wash. 1953). The first circumstance requiring Level 3 to bear the costs of
relocating its facilities is “the relocation or placement of railroad tracks.” Notably
absent is a modifier referring to the Railroad or to third parties. The second
circumstance in which Level 3 must cover the costs of relocation is “for BNSF’s
own operational improvements.” If the parties had meant to limit the first
circumstance to BNSF’s benefit alone, they could have done so, just as they did in
the second circumstance. In addition, if the first provision were limited exclusively
to the relocation or placement of tracks for BNSF’s benefit and not for third
parties, the second provision would subsume the first provision because both the
relocation and placement of railroad tracks are operational improvements.

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Finally, the district court correctly found no disputed issue of material fact,
because any incidental benefit to the Washington State Department of
Transportation is irrelevant. Sound Transit’s planned use of the right-of-way as a
commuter line required the placement of railroad tracks, thus triggering Section
11(a) of the Agreement. Facts tending to show that Sound Transit demanded the
relocation of Level 3’s facilities for some other purpose, unrelated to the placement
of tracks, would fall within Section 11(b), and, therefore, are not relevant. Section
11(a) controls, and Level 3 must pay the relocation costs.
AFFIRMED.

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