10th Circuit Orders Feds To File In Property Rights Case

By William Perry Pendley

DENVER - The U.S. Court of Appeals for the 10th Circuit on Oct. 25 ordered the United States to respond to a motion by a Wyoming man who seeks to overturn a ruling by a Wyoming federal district court in favor of the U.S. Forest Service in a dispute over whether his land may be used as a federal trail (Marvin M. Brandt and Marvin M. Brandt Revocable Trust v. United States, No. 09-8047 [10th Cir.]).

 The order comes one day after the man filed a motion urging the appeals court to reverse a ruling by a three-judge panel.  Marvin Brandt of Fox Park, Wyo., claims title to a railroad right-of-way and a road that accesses his property.  The land claimed by the United States was used as a railroad right-of-way from 1904 until 1995, the railroad then abandoned it; all tracks and ties were removed by 2000; thereafter, the Forest Service abandoned what was once a road.  The Wyoming court ruled, over Brandt's objections, that the Forest Service retained a reversionary interest in the railroad right-of-way pursuant to two federal statutes and that the Forest Service did not abandon the road despite a gate, fence, and trees where the road once was and obliteration of the road.  The panel held that it was required by court precedent to uphold the ruling.

"This is encouraging news," said William Perry Pendley, president of Mountain States Legal Foundation (MSLF); MSLF represents Brandt.

On Feb. 25, 1904, pursuant to the General Railroad Right-of-Way Act, the Laramie, Hahns Peak and Pacific Railroad Company filed with the U.S. Department of the Interior and, thus, in 1908, acquired a 200-foot-wide, 66-mile-long right-of-way from Laramie, Wyo., to the Colorado State line.  The railroad operated until September 1995 and, in May 1996, the railroad's owner filed a Notice of Intent to Abandon Rail Service from near Laramie, Wyo., to the Colorado State line.  The track and ties were removed in 1999 and 2000 and service terminated at the end of 2003.

The land along the railroad right-of-way was reserved from the public domain by presidential proclamation and became part of the Medicine Bow National Forest.  The private land areas of Albany, Fox Park, and Mountain Home along the right-of-way were acquired after creation of the railroad and are subject to it.  At Albany, private lots were platted over the right-of-way and the land conveyed subject to the railroad.  Abandonment of the railroad right-of-way thus creates a title conflict between these ownerships and the effects of the 1988 Rails-to-Trails Act.  Brandt owns 83 acres of private land patented to him on February 18, 1976, as part of an exchange with the Forest Service.  In April 2005, the Forest Service issued a notice of its plans to convert the railway into a public trail.  On July 14, 2006, the United States sued Brandt and others.  The court ruled on March 3, 2009.

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and economic freedom.  Its offices are in the Denver metropolitan area.

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