F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 10 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

T. GREGORY KIRIANOFF; PATRICIA KIRIANOFF, on behalf of a class of similarly situated persons or entities,

Plaintiffs-Appellants, No. 97-1037 v. (D.C. No. 96-Z-570) (D. Colo.) SOUTHERN PACIFIC RAIL CORPORATION, a Delaware corporation; THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a Delaware corporation; SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation,

Defendants-Appellees,

and

ROARING FORK RAILROAD HOLDING AUTHORITY,

Intervenor.

ORDER AND JUDGMENT *

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiffs appeal the district court decision dismissing their declaratory

judgment action. See Fed. R. Civ. P. 12(b)(6). This court reviews such a

dismissal de novo, accepting plaintiffs’ well-pleaded allegations as true. See

Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir. 1997). Upon consideration

of the record and the parties’ arguments, we affirm.

Plaintiffs, proceeding under 43 U.S.C. § 912, seek to quiet title in

themselves to a railroad right-of-way adjoining their property. A determination

by the Surface Transportation Board (Board), under 49 U.S.C. § 10903,

authorizing the railroad to abandon the rail line is a prerequisite to a court’s

transferring interests to adjoining landowners under § 912. See Phillips Co. v.

Denver & Rio Grande W. R.R., 97 F.3d 1375, 1375 (10th Cir. 1996), cert. denied,

117 S. Ct. 2480 (1997). Because the Board has not authorized defendants to

-2- abandon the rail line at issue here, the district court did not err in dismissing

plaintiffs’ claims.

Plaintiffs argue that Phillips Co. “cannot be easily reconciled with the

Federal Circuit’s decision” in Preseault v. United States, 100 F.3d 1525 (Fed. Cir.

1996). See Appellants’ Opening Br. at 6. This three-judge panel does not have

authority to overrule Phillips Co., see, e.g., Summum, 130 F.3d at 912 n.8; United

States v. Hargus, 128 F.3d 1358, 1364 (10th Cir. 1997), petition for cert. filed

(Dec. 5, 1997) (U.S. No. 97-7024), and plaintiffs have not filed a suggestion for

in banc consideration, see Fed. R. App. P. 35; see also United States v. Splawn,

963 F.2d 295, 297 (10th Cir.), on reh’g, 982 F.2d 414 (10th Cir. 1992).

The judgment of the United States District Court for the Colorado

is AFFIRMED. Intervenor’s request for sanctions is DENIED.

Entered for the Court

Bobby R. Baldock Circuit Judge

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