HERBERT A. ROSS
U.S. Bankruptcy Judge

      Sec. 309 of Title III of the Act provides:

SEC. 309. APPEAL OF CERTAIN DETERMINATIONS RELATING TO BANKRUPTCY CASES.

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      (b) ABSTENTION DETERMINATIONS UNDER TITLE 28, UNITED STATES CODE.--The second sentence of section 1334(c)(2) of title 28, United States Code, is amended-- (1) by inserting "or not to abstain" after "to abstain", and (2) by inserting the following before the period: "by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title".

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c. Congress should amend 11 U.S.C. § 305(c) and 28 U.S.C. §§ 1334(c)(2) & 1452(b) to clarify that they forbid only appeals from the district courts to the courts of appeals, not from bankruptcy courts to the district courts.

These statutes provide that bankruptcy judges' orders deciding certain motions (motions to abstain in favor of, or remand to, state courts in various bankruptcy claims) are unreviewable "by appeal or otherwise." Because bankruptcy judges may enter trial orders only if there is appellate review in an Article III court, one result of this limitation is that bankruptcy judges cannot make final judgments in such cases even though they clearly involve "core" proceedings. The proposed amendment would authorize bankruptcy judges to enter binding orders subject to review in the district court. Speeding the disposition of such motions will better serve the purpose of the limitation on appeals from the district courts to the courts of appeals.

      The intent of the legislation is clear. Though Bankruptcy Rule 5011(b) provides for a bankruptcy court to "report and recommend" a decision on abstention, the amendment supersedes this rule. Therefore, I will enter an order which will be appealable to the United States District Court.

      Alaska Trams' amended complaint claims CBJ is wrongfully trespassing and using its tunnel for storage of a water supply for the City of Juneau. Alaska Trams seeks: (1) to quiet title; (2) ejectment; (3) damages; and, (4) turnover.

      CBJ moved for either mandatory or discretionary abstention on the grounds that the matters involve mostly state law issues and are better addressed in state court. It also has requested a jury trial and states that this court cannot hold one.

      I had told the parties some time ago that I would recommend denial of the motions, but in light of some recent cases in the Supreme Court and the Ninth Circuit, I have changed my view and now believe CBJ is correct. Discretionary abstention is appropriate in this adversary proceeding.

      The borderline between core and related proceedings is often not clear. Too liberal a reading of the § 157(b) definitions of a core proceeding would run afoul of Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). Alaska Trams' claim for pre-petition damages should be treated as a "related" matter, even though the litigation was filed by Alaska Trams post-petition. Compare the treatment of suits for pre-petition accounts receivable which Collier says should be treated as "straightforward Marathon-type contract actions." Some courts have attempted to treat them as core proceedings, reasoning they are matters of administration under 28 U.S.C. § 157(b)(2)(A), turnover matters under § 157(b)(2)(E), or "other proceedings" under § 157(b)(2)(O). This is too broad a reading of the bankruptcy court's jurisdiction. 1 Collier on Bankruptcy ¶ 3.01[2][iv] at 3-50 (15th ed. 1989).

      In Texaco the state of Texas had filed a pre-petition law suit in a Texas state court to determine the validity of some oil and gas leases. The question involved the interpretation of the Texas Relinquishment Act of 1919 or a possible termination by operation of law in 1927. After the Texaco bankruptcy, the state filed a proof of claim in the bankruptcy case based, in part, on the oil and gas lease matter. The state then asked the court to abstain from hearing the matter as an objection to claims and allow the state court litigation to go forward.

      The court declined to abstain and said that discretionary abstention should be narrowly construed when adjudications are entrusted to the federal judiciary.

      Unlike Texaco, CBJ has not filed a proof of claim. Failure to file a proof of claim was an important factor in     1 ABR 274  Granfinanciera v. Nordberg, 492 U.S. _____, 109 U.S. 2782, 2798-99, 106 L.Ed.2d 26, 51 (1989). In Granfinanciera the Supreme Court held that a defendant sued by the trustee and who had not filed a proof of claim in the bankruptcy was entitled to a jury trial in a fraudulent transfer action. The court left open whether a bankruptcy court could conduct such a jury trial.

      On November 13, 1990, the Supreme Court decided Langenkamp v. Culp, ____ U.S. ____, 111 S.Ct. 330 (1990) and said the filing of a proof of claim brings a creditor within the equitable jurisdiction of the bankruptcy court. Since the creditor had filed a proof of claim, he was not entitled to a jury trial in a preference action against him by the trustee.

      Also, on November 13, 1990, the Supreme Court remanded a case which would have possibly decided the scope of a bankruptcy judge's authority to conduct a jury trial. Insurance Co. of Pennsylvania v. Ben Cooper, Inc., 59 U.S.L.W. 3362 (U.S. Nov. 13, 1990). The issue may remain in doubt for another term.

      The Ninth Circuit recently said in In re Cinematronics, Inc., 916 F.2d 1444, 1450-1451 (9th Cir. 1990) that a bankruptcy judge does not have the power to conduct a jury trial in a related proceeding.

      Before Granfinanciera, I was inclined to hear this matter and recommend findings on the merits to the District Court. My view has changed. The Ninth Circuit recently set out some factors to be considered in ruling on a permissive abstention matter. In     1 ABR 275  re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir. 1990) states:

      A Texas bankruptcy court has summarized the factors a court should consider when deciding whether to abstain: (1) the effect or lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court, (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of [the bankruptcy court's] docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties. [citing, In re Republic Reader's Serv., Inc., 81 B.R. 422, 429 (Bankr.S.D.Tex. 1987)]

      Applying some of those factors to this adversary proceeding, I believe that abstention is proper. The matter is essentially one which would exist notwithstanding the bankruptcy. At a hearing on December 6, 1990, in Juneau, the debtor indicated that it will present a liquidating plan. The water tunnel, though not unconnected by any means, is not central to the plan or the financing of the proposed tramway. CBJ indicates that if Alaska Trams is right about ownership, it will likely seek condemnation     1 ABR 276  which is a state court matter. These factors and the jury trial issue now convince me that discretionary abstention is appropriate.