WYOMING MAN FIGHTS FOR HIS PROPERTY; FEDS DISSEMBLE
by William Perry Pendley
September 1, 2009
In 1944, Melvin M. Brandt purchased the sawmill in Fox Park, Wyoming—50 miles southwest of Laramie—from which he transported timber via a railroad owned, since 1908, by the Laramie, Hahn’s Peak & Pacific Railway Company. In 1976, the United States patented 83 acres to him and his wife, pursuant to federal law, subject to a right of way for the railroad. Later, the Brandt’s son Marvin acquired the property and, in 1991, closed the sawmill.
Meanwhile, from 1987 to 1995, the Wyoming and Colorado Railroad Company, Inc. (WYCO), which had acquired the right of way, operated the rail line. In 1996, WYCO filed a Notice of Intent to Abandon Rail Service with the U.S. Surface Transportation Board (STB) seeking to abandon its rail line in Albany County, Wyoming, including the portion on Mr. Brandt’s property. In 1999 and 2000, WYCO removed the track and ties; in 2003, the STB approved abandonment of the rail line; and, in 2004, WYCO completed abandonment of the rail line. This was good news for Mr. Brandt who now owned, not only the reverted rail line right of way, but also, pursuant to the original patent, a U.S. Forest Service road that had been reserved by the agency, but then abandoned.
The good news was short lived. In April 2005, the Forest Service announced its decision to convert the abandoned rail bed into a 26-mile-long, high altitude (9,062 feet), recreational trail through the Medicine Bow National Forest. To do so, the Forest Service needed Mr. Brandt’s property, so, in July 2006, it filed a federal quiet title action against him and other property owners. Nonetheless, Mr. Brandt was confident; he owned the land!
In April 2008, the Wyoming federal district court ruled against Mr. Brandt announcing that, notwithstanding a split among the federal circuits, which Mr. Brandt argued revealed that the correct holding was in his favor, the court was required to adhere to dated rulings by the U.S. Court of Appeals for the Tenth Circuit. That was perhaps understandable; what was not was the district court’s ruling as to the abandoned road. Even though the Forest Service had closed the unneeded road, bulldozed a section of it, erected a fence and planted trees across it, directed Mr. Brandt to construct a gate at his end of it, and opened a new road to replace it, the district court ruled the Forest Service’s abandonment was “superficial.”
Throughout all this Mr. Brandt remained confident. After all, that the rail line right of way could not revert to the United States was the better legal argument because the Supreme Court of the United States had rejected the view, adopted by the Tenth Circuit, that an easement could revert by implication. Therefore, argued Mr. Brandt, when the United States grants easements to railroads and later patents the underlying land to settlers, the United States gives up all its interest in the land, including any reversionary interest. As to the district court’s ruling on the Forest Service road, the court was simply wrong.
Unfortunately, Mr. Brandt could not simply appeal to the Tenth Circuit. Because the Forest Service’s actions constitute a “taking” of Brandt’s property without “just compensation” and because the time in which to file a “takings action” is running, Mr. Brandt was required to file a lawsuit at the U.S. Court of Federal Claims in Washington, D.C. When he did, however, federal lawyers argued that his case should be dismissed because the issues had been litigated before the Wyoming district court. Of course, they had not been and, even if they had been, a takings action would still lie. Meanwhile, federal lawyers defend the erroneous ruling that an easement granted a rail line as to patented land reverts to the United States. Given all this, the outcome of Mr. Brandt’s case is anything but certain.
One thing is clear: federal lawyers seek victory, not justice!
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