Record and brief — Marvin M. Brandt Revocable Trust v. United States

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No. 12-1173

Title: Marvin M. Brandt Revocable Trust, et al., Petitioners

United States

Docketed: March 26, 2013

Lower Ct United States Court of Appeals for the Tenth Circuit

Case Nos.: (09-8047)

Decision Date: September 11, 2012

Rehearing

Denied: December 26, 2012

Questions

Presented

~~~Date~~~ ~~~~~~~Proceedings and Orders

Mar 22 2013 Petition for a wnt of certioran filed. (Response due April 25, 2013)

Apr 17 2013 Order extending time to file response to petition to and including May 28, 2013

Apr 23 2013 Brief amicus curiae of Pacific Legal Foundation filed.

Apr 25 2013 Brief amici curiae of Cato Institute, et al. filed.

Apr 25 2013 Brief amicus curiae of Owners’ Counsel of America filed.

May 28 2013 Order further extending time to file response to petition to and including June

27, 2013.

Jun 18 2013 Order further extending time to file response to petition to and including August

1, 2013.

Jul 24 2013 Order further extending time to file response to petition to and including

September 5, 2013.

Sep 52013 Brief of respondent United States filed.

Sep 6 2013 Letter of September 6, 2013, from counsel for petitioners received.

Sep 11 2013 DISTRIBUTED for Conference of September 30, 2013.

Oct 12013 Petitions GRANTED.

Oct 21 2013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for the petitioners.

Nov 42013 SET FOR ARGUMENT ON Tuesday, January 14, 2014.

Nov 15 2013 Joint appendix filed. (Statement of costs filed)

Nov 15 2013 Bnef of petitioners Marvin M. Brandt Revocable Trust, et al. filed.

Nov 19 2013 Record from the U.S.C.A. 10th Circuit is electronicand located on PACER. One

additional record from the U.S.C.A. 10 Circuit (1 envelope).

Nov 19 2013 Bnef amicus curiae of Northwest Lega! Foundation filed. (Distributed)

Nov 20 2013 Motion for leave to file amici brief filed by Owners' Counsel of America, et al.

Nov 21 2013 CIRCULATED.

Nov 22 2013 Brief amici curiae of Cato Institute, et al. filed. (Distributed)

Nov 22 2013 Bnef amicus curiae of National Association of Reversionary Property Owners

filed. (Distributed)

Nov 22 2013 Bnef amicus curiae of Pacific Legal Foundation and Center for Constitutional

Jurisprudence filed. (Distributed)

Nov 22 2013 Bnef amicus curiae of New England Legal Foundation filed. (Distnbuted)

Dec 92013 Motion for leave to file amici brief filed by Owners’ Counsel! of America, et al.

GRANTED.

Dec 16 2013 Brief of respondent United States filed. (Distributed)

Dec 23 2013 Bnef amici curiae of Rails To Trails Conservancy, et al., filed. (Distributed)

Dec 23 2013 Bnef amici curiae of National Conference of State Legislatures, et al. filed.

(Distributed)

Dec 23 2013 Brief amici curiae of States of New Mexico, et al. filed. (Distributed)

Jan 72014 Reply of petitioners Marvin M. Brandt Revocable Trust, et al. filed. (Distributed)

Jan 14 2014 Argued. For petitioners: Steven J. Lechner, Lakewood, Colo. For respondent:

Anthony A. Yang, Assistant to the Solicitor General, Department of Justice,

Washington, D. C.

Mar 10 2014 Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the

opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, Breyer,

Alito, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion.

PETITION

FOR

WRIT OF

CERTIORARI

12-1173

3n The

Supreme Court of the Anited States

MARVIN M. BRANDT REVOCABLE TRUST

AND MARVIN M. BRANDT, TRUSTEE,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

STEVEN J. LECHNER, Esq.

Counsel of Record

JEFFREY W. McCoy, Esq.

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

(303) 292-1980 (facsimile)

lechner@mountainstateslegal.com

jmccoy@mountainstateslegal.com

Counsel for Petitioners

——

(OM KLE CAW BRIEF PRINTING €0) oR 925 oe

OR CALL COLLET are t47 Nth

QUESTION PRESENTED

This case involves the General Railroad Right-

of-Way Act of 1875 (“1875 Act”), under which thou-

sands of miles of rights-of-way exist across the United

States. In Great Northern Ry. Co. v. United States,

315 U.S. 262 (1942), this Court held that 1875 Act

rights-of-way are easements and not limited fees with

an implied reversionary interest. Based upon the

1875 Act and this Court’s decisions, the Federal and

Seventh Circuits have concluded that the United

States did not retain an implied reversionary interest

in 1875 Act rights-of-way after the underlying lands

were patented into private ownership. In this case,

the Tenth Circuit reached the opposite conclusion and

acknowledged that its decision would continue a cir-

cuit split. The question presented is:

Did the United States retain an implied rever-

sionary interest in 1875 Act rights-of-way after the

underlying lands were patented into private owner-

ship?

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

Petitioners are Marvin M. Brandt Revocable

Trust and Marvin M. Brandt, Trustee (collectively

“Brandts”). The Brandts were defendants in the U.S.

District Court for the District of Wyoming and appel-

lants before the U.S. Court of Appeals for the Tenth

Circuit. The Brandts are not corporate entities.

Respondent is the United States of America. The

United States initiated this action against the

Brandts and others, and was the appellee below.

Wyoming and Colorado Railroad Company

(“WYCO”) is a Utah corporation and was a defen-

dant below. WYCO did not participate in the Tenth

Circuit proceedings.

The other defendants were: Board of County

Commissioners, Albany County, Wyoming; DuWayne

Keeney; Elizabeth Keeney; Susan Torres; Juan Torres;

Bunn Family Trust, Debra R. Hinkel, Trustee; Roger

L. Morgan; Daniel K. McNierney; Susan McNierney;

Ralph L. Lockhart; Duane King; Patricia King; Marilyn

Flint; Marjorie Secrest; Gary Williams; June Williams;

Glenna Louise Marrs Trust, Glenna Marrs and

Rondal Wayne, Trustees; Kenneth R. Lankford IJ;

Kenneth R. Lankford, Sr.; Patrick R. Rinker; Patricia

A. Rinker Flanigin; David Yeutter; Marilyn Yeutter;

Snowy Range Properties, LLC; Michael Palmer; Sally

Palmer; Ray L. Waits; Breazeale Revocable Trust,

ill

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT - Continued

Vernon H. and Norma J. Breazeale, Trustees; Eugene

L. Budnick; Donald Graff; Wanda Graff; Lawrence R.

Otterstein; Ginny L. Otterstein; Ronald B. Yeutter;

Helen D. Yeutter; Patrick R. Rinker; Lynda L. Rinker;

Edmund L. Gruber; Donna Ellen Gruber; Robert S.

Pearce; Dorothy M. Pearce; David M. Pearce; Steven

M. Pearce; Kathlynn A. Lambert; Steven P. Taffe;

Janis A. Taffe; Billy M. Ratliff; and Tobin L. Ratliff.

None of these defendants participated in the Tenth

Circuit proceedings.

TABLE OF CONTENTS

Page

QUESTION PRESENTED.................ccccssseccccccesssees i

PARTIES TO THE PROCEEDINGS AND RULE

IIE cnicintnsstponnensituannsmaiibunaniianiaien il

GE GUF EE EI vcwercninecisncssssesnscesssosoness vill

PETITION FOR WRIT OF CERTIORAR]............ 1

I ET a vcecsininsniinspeiisatsngimicanisuenniaendeenens l

STATEMENT OF JURISDICTION .........0..000..0..... 1

STATUTORY PROVISIONS AT ISSUE ................ 2

STATEMENT OF THE CASE.....................eeee 2

I. LEGAL BACKGROUND ...................ccc0ees00 2

A. Railroad Land Grants ........................... 2

B. The General Railroad Right-Of-Way

ee SE cacteniccdnnctenenscineniiaininetnienela 3

C. This Court’s Decision In Stringham ..... 5

D. Congress Responds To Stringham ........ 6

E. This Court Rejects Stringham And Re-

affirms That 1875 Act ROWs Are Ease-

F. The National Trails System Improve-

I TA Te SI elitr ccctetsinesiienscrsinineninindi 9

II. PROCEEDINGS BELOW..............00.00.0.0.0... 10

REASONS FOR GRANTING THE PETITION ..... 15

II.

ITT.

TABLE OF CONTENTS -— Continued

Page

THE TENTH CIRCUIT'S RULING THAT

THE UNITED STATES RETAINED AN

IMPLIED REVERSIONARY INTEREST

IN 1875 ACT ROWS CONFLICTS WITH

THIS COURTS RULING IN GREAT

ET iincabniidisscunencavieihinboniiesiadiinaununans

THE TENTH CIRCUIT'S RULING THAT

THE UNITED STATES RETAINED AN

IMPLIED REVERSIONARY INTEREST

IN 1875 ACT ROWS CONFLICTS WITH

THIS COURT’S PRECEDENT REGARD-

ING THE SANCTITY OF PATENTS AND

THIS COURT'S RULING IN LEO SHEEP...

THE TENTH CIRCUIT’S RULING THAT

THE UNITED STATES RETAINED AN

IMPLIED REVERSIONARY INTEREST

IN 1875 ACT ROWS CONFLICTS WITH

DECISIONS FROM THE FEDERAL AND

yy <gy C & Ly yn

A. The Tenth Circuit Incorrectly Ruled

That The United States Retained An

Implied Reversionary Interest In 1875

ee eee iteitstnseeiiniciaaaadelassianeeadsiiatpeidethensseieanio

B. The Federal And Seventh Circuits

Have Rejected The Tenth Circuit’s Rea-

soning And Concluded That The United

States Did Not Ketain An Implied Rever-

sionary Interest In 1875 Act ROWs.......

TABLE OF CONTENTS -— Continued

Page

IV. THE ISSUE WHETHER THE UNITED

STATES RETAINED AN IMPLIED REVER-

SIONARY INTEREST IN 1875 ACT ROWS IS

OF NATIONAL IMPORTANCE AND THIS

CASE PRESENTS THE IDEAL OPPOR-

TUNITY TO RESOLVE THAT ISSUE............ 34

RIED sissssnieiisceisbsencdelosseidaeteniidinadibiehinedadasadannastien 37

APPENDIX

U.S. Court of Appeals for the Tenth Circuit, Per

Curiam Order, September 11, 2012................. App. 1

U.S. District Court for the District of Wyoming,

Memorandum Opinion and Order, April 8,

I ee rer ae eee App. 10

U.S. District Court for the District of Wyoming,

Judgment on the Brandts’ First and Second

Counterclaims, March 2, 2009 ............0....08. App. 57

U.S. District Court for the District of Wyoming,

Judgment on Claims Against Wyoming and Col-

orado Railroad Company, March 2, 2009 ......... App. 60

U.S. District Court for the District of Wyoming,

Order Dismissing the Brandts’ Third Coun-

terclaim, March 4, 2009 .................ccccec cee eee ees App. 62

U.S. Court of Appeals for the Tenth Circuit,

Order Denying Petition for Rehearing En

Banc and/or Panel Rehearing, December 26,

SEE dicinctsinitivencsicmnninanncniiptnianiinnedannionineinnnsanntiis App. 67

TABLE OF CONTENTS -— Continued

Page

General Railroad Right-of-Way Act of 1875, 18

le GE EINE iciiceaccnscncctbacienipntiuicninedinnndonicnes App. 69

a SEER ALT Rai canes aie ee App. 72

16 U.S.C. § 1248(c) and (d)................cccccseseseeeees App. 74

Se es Te Se I cinicccecssicissitcitendsiccsieninmveecnes App. 75

IT SII casisincinsecntshininiesieneininiaieiisiidintinamiatege App. 76

U.S. Department of the Interior, Questions

And Answers About The 1875 Act And Opin-

ion M-37025 (Nov. 4, 2011), available at

http://www.blm.gov/pgdata/etc/medialib/blm/wo/

Communications_Directorate/public_affairs/

news_release_attachments.Par.20306.File.tmp/

RII scctcsiccenndiessnnsnncdnnnsnmnnsinncncmsenns App. 80

vill

TABLE OF AUTHORITIES

Page

CASES

Amoco Prod. Co. v. S. Ute Indian Tribe, 526

| ___ERE GRE RPO NC mE CesT 31

Beres v. United States, 64 Fed. Cl. 403 (2005)

PIE iciiicsetrniinaainilimieidiiaiipididmannunieins 13, 23, 29, 30, 33

Beres v. United States, 104 Fed. Cl. 408 (2012)

ys gy RENTER ae OnE ie Beira ue ae Diets Sa eres aoe 30, 35

Brandt v. United States, 102 Fed. Cl. 72 (2011),

appeal pending, No. 2012-2050 (Fed. Cir.)............. 13

Brown v. N. Hills Reg’l R.R. Auth., 732 N.W.2d

I a cael 34

Brown v. State, 924 P.2d 908 (Wash. 1996) ............... 34

Chicago & N. W. Ry. Co. v. Continental Oil Co.,

253 F.2d 468 (10th Cir. 1968) .................0..0..c000.0000 18

City of Aberdeen v. Chicago & N. W. Transp.

Co., 602 F. Supp. 589 (D.S.D. 1984) ........... 24, 30, 33

Ellamae Phillips Co. v. United States, 564 F.3d

I I, I, a eld 33

Geneva Rock Products v. United States, 107

I el 20

Great Northern Ry. Co. v. United States, 315

ee a iheciatavcntecihcnsidiesiedtiheacatetiiciianeanieabiieasttiaaiaiunl passim

Hash v. United States, 403 F.3d 1308 (Fed. Cir.

EIST eee a ee a Len OAM ee 13, 32, 33

Home on the Range v. AT&T Corp., 386

F. Supp. 2d 999 (S.D. Ind. 2005).................. ee 24

TABLE OF AUTHORITIES ~— Continued

Page

Leo Sheep Co. v. United States, 440 U.S. 668

a nevi scnsenbsicntithncuseudeiilebcgriitaipleiainiekeegaieininideiiianiiiiid passim

MacDonald v. United States, 119 F.2d 821 (9th

Sa SEP sseistsasbbuebiuioeipciceeiittiictabeidcdaneehaieedtiapigetehaaeiacea 8

Marbury v. Madison, 5 U.S. (1 Cranch) 137

Sti csssicinseiicliinuieseeiheielsiipetedaenaaeenbieheka baeilnbenilaati 30

Marshall v. Chicago & Northwestern Transpor-

tation Co., 31 F.3d 1028 (10th Cir. 1994)....... passim

Missouri, K. & T: R. Co. v. Kansas Pacific R.

Dia, Is i allio 22

Moore v. Robbins, 96 U.S. 530 (1877) ....00.0.0.0000000000... 21

Nat'l Wildlife Fed’n v. ICC, 850 F.2d 694 (D.C.

Sarr TT iaeceiicatereioeiasetinietiasicibenleadatahasieiaedidieesiatiaiadtis 20

Nicodemus v. Union Pac. Corp., 440 F.3d 1227

TED sitinetinictsinieuaiennaiumeniatniammnntedinte 25, 26

Northern Pac. Ry. Co. v. Townsend, 190 U.S.

I Tinoco savin ladeaiasihaattaladeit dilate icliasiniiihinigial 3

Phillips Co. v. Denver & Rio Grande Western

R.R. Co., 97 F.3d 1375 (10th Cir. 1996).......0.0000..... 25

Poverty Flats Land & Cattle Co. v. United

States, 788 F.2d 676 (10th Cir. 1986) .............000..0.. 31

Preseault v. I.C.C., 494 U.S. 1 (1990)

eg, EER ERERILTRRG TR ea ENe nee aM n aT oC Nn TE 9

Preseault v. United States, 100 F.3d 1525 (Fed.

Cir. 1996) (“Preseault I1”) .........00. 000. c0ccecce cece 9, 19, 20

Rio Grande W. Ry. Co. v. Stringham, 239 U.S.

Tae isiiseciastinbinseematnianitdidaiennmitliigneiibiannie passim

TABLE OF AUTHORITIES — Continued

Page

Rivers v. Roadway Exp., Inc., 511 U.S. 298

Samuel C. Johnson 1988 Trust v. Bayfield

County, Wisconsin, 649 F.3d 799 (7th Cir.

SN es oa. nies tdn altho eee acre ear a ine ee ee

Shaw v. Merchants’ Nat. Bank, 101 U.S. 557

i assunuvetclieisdatedcedeasinasmnvonsiaeasimnmmrebimesieds REE Ne ..19

Smith v. Townsend, 148 U.S. 490 (1893) ...0.0000000.0..... 24

St. Joseph & Denver City R. Co. v. Baldwin,

I hn aaa ag oT 22

State of Idaho v. Oregon Short Line R.R. Co.,

617 F. Supp. 207 (D. Idaho 1985)........................... 27

Swendig v. Washington Water Power Co., 265

Sn I cea cata a ae ed OE Ls 21

Toews v. United States, 376 F.3d 1371 (Fed. Cir.

| Tddaisihinediastnaeasnmmddcntiinesmametanauidadnate 20, 36

United States v. Great N. Ry. Co., 343 U.S. 562

AEA RRS NSS Reh ARs eo RA 22

United States v. Nixon, 418 U.S. 683 (1974) ............. 19

United States v. Price, 361 U.S. 304 (1960)............... 31

United States v. Stone, 69 U.S. 525 (1864) .....0.0000..... 21

United States v. Texas, 507 U.S. 529 (1993) ...0000000.... 19

United States v. Tohono O'odham Nation,

‘t See: 5 es es LS | 13

United States v. Union Pacific R. Co., 353 U.S.

Ly REISER EAN De he SAI SE AS TR Nec hy ne 17, 18

TABLE OF AUTHORITIES — Continued

Page

Vieux v. East Bay Regl Park Dist., 906 F.2d

i a ed es 33

Whipps Land & Cattle Co. v. Level 3 Communti-

cations, LLC, 658 N.W.2d 258 (Neb. 2003) ............ 34

Wyoming v. Andrus, 602 F.2d 1379 (10th Cir.

nis ee bd AC ee ee ll 18

Wyoming v. Udall, 379 F.2d 635 (10th Cir.

RR ET Ei RE Ree ONS Ne hee Rk ee Pe EE 18, 23

STATUTES

Pacific Railroad Act, 12 Stat. 489 (1862) ............... 3. 33

Amended Pacific Railroad Act, 13 Stat. 356

Northern Pacific Railroad Act, 13 Stat. 365

Act of April 12, 1872, 17 Stat. 52 (1872).........0000000...... 4

General Railroad Right-of-Way Act of 1875, 18

Stat. 482 (1875), codified at 43 U.S.C. §§ 934-

TNT a deitsaimaniasedcccusiisa punaseitetiaclead nteestaaiy es dddaadclaihaeiaddaadenclecmadataae passim

Act of June 26, 1906, 34 Stat. 482 (1906)....................5

Act of February 25, 1909, 35 Stat. 647 (1909),

I Oe Ce Ws Oe vc ccrnccdvccncccasscccccorscceccscocscall

Act of March 8, 1922, 42 Stat. 414 (1922),

OMEENOS G6 43 UBL. § BED... .cccccccccescscscsoscesss passim

Federal Land Policy and Management Act,

Pub. L. No. 94-579, 90 Stat. 2743 (1976) ........... 4,19

xi]

TABLE OF AUTHORITIES -— Continued

Page

National Trails System Act Amendments of

1983, Pub. L. No. 98-11, 97 Stat. 42, codified

Oe ee i eid cicccdieniniesenvvcsedcevicdedécnans’ 9

National Trails System Improvements Act of

1988, Pub. L. No. 100-470, § 3, 102 Stat.

Re a a acatcneaianioonns RERAWe R l eh se er 2,9, 23

ee Epa enna ae ch meee aeerer passim

FE STR LAE FO ROP RO te aE NO EE 2

RS Reenter Seen Ce ISS ve Whee 2

LEGISLATIVE HISTORY

Cong. Globe, 42nd Cong., 2nd Sess., 1585

|. esenee isa ie ebicniceaiieniebiiedbdaeisdanbidl tedesilinacaitasideiiaaietalien 4

Cong. Globe, 42nd Cong., 2nd Sess., 2136

Sit buiiiseindtianhshciek dddadiashnasenenadneaitceinamaaaantatead 4

H.R. Rep. No. 217, 67th Cong., Ist Sess.,

quoted in S. Rep. No. 388, 67th Cong., 2nd

TA ee ae Te er kN tee el 6, 29

S. Rep. No. 408, 100th Cong., 2nd Sess., re-

printed in, 1988 U.S.C.C.A.N. 2607 ....................... 10

REGULATIONS

I 19

43 C.F.LR. § 2842.1(a) (1976) .............. hndeeaduipasanddtedddia 19

Xi]

TABLE OF AUTHORITIES — Continued

Page

RULES

ns CaS UNO TG on iiciseicscisssesiiisdicisvsnsecsssssess li, 1

FEDERAL REGISTER

35 Fed. Reg. 9,502 (June 13, 1970)...........0.0.... ee 19

45 Fed. Reg. 44,518 (July 1, 1980).............0000 ee. 19

ADMINISTRATIVE DECISIONS

Amerada Hess Corp., 24 IBLA 360 (1976)................. 23

Circular, Right of Way ~ Railroads — Act of

March 3, 1875, 12 L.D. 423 (1888).......................0008 4

Fremont, Elkhorn and Missouri Valley Ry. Co.,

RR ernie eet ora eee ne cme ee: 5

Right-of-Way Railroads, 37 L.D. 787 (1909).............. 19

OTHER AUTHORITIES

Brief for the United States, Great Northern Ry.

Co. v. United States, No. 149, 1942 WL 54245 ........ 5

Brief for Appellee the United States, Hash v.

United States, Federal Circuit No. 03-1395,

3 EEC

Cecilia Fex, The Elements of Liability in A

Trails Act Taking: A Guide to the Analysis,

BO BCCSORy L..60. STS (BOA) ..........ccccsccccesceccssccvccceses 35

X1V

TABLE OF AUTHORITIES — Continued

Comment, Statutes of Limitations in Rails-to-

Trails Act Compensation Claims: The U.S.

Court of Appeals for the Federal Circuit

Bends the Rules of Takings Law, 56 Cath. U.

ERA EN EER ID

Paul W. Gates, History of Public Land Law

ATS BENT ON Ae EINE ee

Petition of the United States for Panel Rehear-

ing, Hash v. United States, Federal Circuit

No. 03-1395, 2005 WL 4814437..................00.....

Restatement (First) of Property § 154, comment

Fait nisepislichiniiinniiainintinateninnianipenhabeieininenaeece

Restatement (First) of Property § 504 (1944)........

Solicitor’s Opinion M-37025, Partial Withdrawal

of M-36964 — Proposed Installation of MCI

Fiber Optic Communications Line Within

Southern Pacific Transportation Co.’s Rail-

road Right-of-Way (Nov. 4, 2011), available at

http://www.doi.gov/solicitor/opinions/M-37025.

Page

pdf (last visited Mar. 14, 2013)...........0..0.... 18, 20, 30

U.S. Department of the Interior, Annual Re-

ports of the Department of the Interior for the

Fiscal Year Ended June 20, 1904 (1904)....... “et.

Sas 35

PETITION FOR WRIT OF CERTIORARI

Marvin M. Brandt Revocable Trust and Marvin

M. Brandt, Trustee (the “Brandts”), respectfully peti-

tion for a writ of certiorari to review the judgment of

the U.S. Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the

Tenth Circuit, dated September 11, 2012, was not se-

lected for publication in the Federal Reporter and is

reproduced at Appendix (“App.”) 1-9. The opinion of

the U.S. District Court for the District of Wyoming

was not selected for publication in the Federal Sup-

plement and is reproduced at App. 10-56.

STATEMENT OF JURISDICTION

On March 2 and 3, 2009, the district court en-

tered judgment in favor of the United States and

against the Brandts. App. 57-59. On April 29, 2009,

the Brandts timely filed a Notice of Appeal. On Sep-

tember 11, 2012, the Tenth Circuit issued a per

curiam decision affirming the district court’s decision.

App. 1-9. On October 24, 2012, the Brandts filed a

timely petition for rehearing en banc and/or panel

rehearing. The petition was denied on December 26,

2012. App. 67-68. This Petition for Writ of Certio-

rari is filed within ninety days of that date. This

Court has jurisdiction pursuant to 28 U.S.C.

§ 1254¢1).

STATUTORY PROVISIONS AT ISSUE

The General Railroad Right-of-Way Act of 1875

(“1875 Act”), 18 Stat. 482-83 (1875), is codified at 43

U.S.C. §§ 934-939, and is reproduced at App. 69-71.

The Act of March 8, 1922, 42 Stat. 414-143

(1922), is codified at 43 U.S.C. § 912, and is repro-

duced at App. 72-73.

Relevant portions of Section 3 of the National

Trails System Improvements Act of 1988, Pub. L. No.

100-470, § 3, 102 Stat. 2281 (1988), are codified at 16

U.S.C. § 1248(c) and (d), and are reproduced at App. 74.

STATEMENT OF THE CASE

I. LEGAL BACKGROUND.

A. Railroad Land Grants.

During the 1800s, the United States promoted,

as national policy, the development and settlement of

the public domain in the western United States. See,

e.g., Leo Sheep Co. v. United States, 446 U.S. 668,

670-77 (1979). In furtherance of this policy, between

1850 and 1871, Congress sought to encourage the pri-

vate building of railroads through the immense and

undeveloped public domain by granting railroads a

right-of-way (“ROW”) and alternating sections of

lands along the ROW. E.g., Pacific Railroad Act, 12

Stat. 489-98 (1862); Amended Pacific Railroad Act, 13

Stat. 356-65 (1864); Northern Pacific Railroad Act, 13

Stat. 365-72 (1864). This Court has interpreted these

pre-1871 railroad acts as granting a limited fee in the

railroad ROW with an implied condition of reverter.

Northern Pac. Ry. Co. v. Townsend, 190 U.S. 267, 271

(1903) (“In effect the [ROW] grant was of a limited

fee, made on an implied condition of reverter in the

event that the company ceased to use or retain the

land for the purpose for which it was granted.”).

B. The General Railroad Right-Of-Way Act

Of 1875.

Railroad land grants eventually met with public

disapproval, and after 1871, Congress changed its

policy in favor of homesteaders. Paul W. Gates, His-

tory of Public Land Law Development, 379-81, 396-99,

454-57 (1968). Although unwilling to make outright

grants of land to railroads, Congress did not wish to

stymie the development of a nationwide railroad sys-

tem. To avoid this problem, beginning in 1872, Con-

gress passed a number of special acts granting to

designated railroads only ROWs through the public

lands.’ These acts generally provided for the disposal

‘ On March 11, 1872, the House of Representatives passed

the following Resolution:

Resolved, that in the judgment of this House the pol-

icy of granting subsidies in public lands to railroads

(Continued on following page)

of lands over which the railroad ROW crossed “sub-

ject to” the railroad ROW. E.g., Act of April 12, 1872,

17 Stat. 52 (1872) (“all lands over which the said line

of road shall pass shall be sold, located, or disposed of

by the United States, subject to such right of way so

located as aforesaid”); see Cong. Globe, 42nd Cong.,

2nd Sess., 2136-37 (1872). Finally, in 1875, in order to

avoid the need for special] legislation for each new

railroad, Congress passed the General Railroad

Right-of-Way Act of 1875 (“1875 Act”), 18 Stat. 482-83

(1875), codified at 43 U.S.C. §§ 934-939, repealed as

to the issuance of ROWs by the Federal Land Policy

and Management Act, Pub. L. No. 94-579, 90 Stat.

2743, 2793 (1976).

Of particular importance is Section 4 of the 1875

Act, which provides: “all such lands over which such

right of way shall pass shall be disposed of subject to

such right of way.” App. 70-71. Based upon this stat-

utory language and the history surrounding that pas-

sage of the 1875 Act, the Department of the Interior

(“DOI”) consistently interpreted the 1875 Act as grant-

ing an easement rather than a fee. E.g., Circular,

and other corporations ought to be discontinued, and

that every consideration of public policy and equal

justice to the whole people requires that the public

lands should be held for the purpose of securing home-

steads to actual settlers, and for educational purposes,

as may be provided by law.

Cong. Globe, 42nd Cong., 2nd Sess. 1585 (1872) (emphasis

added).

)

Right of Way — Railroads — Act of March 3, 1875, 12

L.D. 423, 428 (1888) (“The act of March 3, 1875 is not

in the nature of a grant of lands; it does not convey an

estate in fee... . It is a right of use only, the title still

remaining in the United States.”); Fremont, Elkhorn

and Missouri Valley Ry. Co., 19 L.D. 588, 590 (1894)

(“That the right of way granted by the [1875 Act] is a

mere easement cannot be questioned, for the fourth

section provides that ‘thereafter all such lands, over

which such right of way shall pass, shall be disposed

of, subject to such right of way.’”). Congress also

recognized that the 1875 Act granted only an ease-

ment. E.g., Act of June 26, 1906, 34 Stat. 482 (1906)

(expressly characterizing 1875 Act ROWs as “ease-

ments”); Act of February 25, 1909, 35 Stat. 647

(1909), codified at 43 U.S.C. § 940 (same).

C. This Court’s Decision In Stringham.

That 1875 Act ROWs were easements for railroad

purposes was well recognized by the courts and ad-

ministrative agencies until 1915, when this Court

decided Rio Grande W. Ry. Co. v. Stringham, 239 U.S.

44 (1915). Stringham involved a private dispute

brought by a railroad claiming an 1875 Act ROW

against the purchaser of surface rights from a mining

claimant. /d. at 45-46. The railroad prevailed and

title to the ROW over the mining claim was quieted

in its favor. Jd. at 46. The railroad ultimately brought

a writ of error to this Court asserting that it should

have been adjudged the fee simple owner of the strip

of land through the mining claim. /d. at 46-47.

Although this Court affirmed, relying on cases inter-

preting pre-1871 railroad acts, it stated, arguably in

dictum:

The right of way granted by this and similar

acts is neither a mere easement, nor a fee

simple absolute, but a limited fee, made on

an implied condition of reverter in the event

that the company ceases to use or retain the

land for the purposes for which it is granted,

and carries with it the incidents and reme-

dies usually attending the fee.

Id. at 48 (emphasis added).°

D. Congress Responds To Stringham.

The “limited fee” language in Stringham natu-

rally raised concerns in Congress as to what to do

with the strips of land upon abandonment by a rail-

road. H.R. Rep. No. 217, 67th Cong., lst Sess., quoted

in S. Rep. No. 388, 67th Cong., 2nd Sess., at 1-2

(emphasis added). Because these strips of land would

have “little or no value to the government[,]” id., and

Congress had originally intended to convey the un-

derlying land to homesteaders, Congress passed the

Act of March 8, 1922, 42 Stat. 414-15 (1922), codified

at 43 U.S.C. § 912, to transfer those strips of lands to

This misstatement was likely made because Stringham

involved only private parties and this Court did not have the

benefit of a brief from the United States.

whom the adjacent lands had been patented. App. 72-

73. This statute provides, in relevant part:

Whenever public lands of the United States

have been or may be granted to any railroad

company for use as a right of way for its rail-

road..., and use and occupancy of said

lands for such purposes has ceased or shall

hereafter cease, whether by forfeiture or by

abandonment by said railroad company de-

clared or decreed by a court of competent ju-

risdiction or by Act of Congress, then and

thereupon all right, title, interest, and estate

of the United States in said lands shall ...

be transferred to and vested in any person,

firm, or corporation, assigns, or successors in

title and interest to whom or to which title of

the United States may have been or may be

granted, ... Provided further, That the trans-

fer of such lands shall be subject to and con-

tain reservations in favor of the United

States of all oil, gas, and other minerals in

the land so transferred and conveyed, with

the right to prospect for, mine, and remove

same.

Id. (all emphasis added).

E. This Court Rejects Stringham And Re-

affirms That 1875 Act ROWs Are Ease-

ments.

In Great Northern Ry. Co. v. United States, 315

U.S. 262, 270 (1942), the United States sought to

enjoin a railroad from removing the oil and gas from

underneath an 1875 Act ROW. Based upon Congress’

shift in policy in 1871, the text of the 1875 Act, con-

temporary constructions of the 1875 Act by the DOI,

and similar constructions by Congress as reflected in

subsequent legislation, the United States argued that

1875 Act ROWs are merely easements for railroad

purposes that conveyed no right to the minerals un-

derlying the ROW. Brief for the United States, Great

Northern Ry. Co. v. United States, No. 149, 1942 WL

54245, *9-35.

This Court emphatically agreed with the United

States’ persuasive arguments and ruled that 1875

Act ROWs are easements. Great Northern, 315 U.S.

at 271 (“The [1875] Act ... clearly grants only an

easement, and not a fee.”). In reaching this con-

clusion, this Court noted that Section 4, which al-

lowed for the subsequent patenting of the lands

“subject to” a ROW, was “especially persuasive”

because such actions would be “wholly inconsistent

with the grant of a fee.” Jd. In fact, this Court

stressed that “‘[a]pter words to indicate the intent

to convey an easement would be difficult to find[.]’”

Id. (quoting MacDonald v. United States, 119 F.2d

821, 825 (9th Cir. 1941)). Accordingly, this Court also

expressly rejected the “limited fee” language in

Stringham:

The conclusion [in Stringham] that the rail-

road was the owner of a ‘limited fee’ was

based on cases arising under the land-grant

acts passed prior to 1871 and it does not ap-

pear that Congress’ change of policy after

1871 was brought to the Court’s atten-

tion. ... We therefore do not regard it as con-

trolling. Statements in [other cases] that the

1875 Act conveyed a limited fee are dicta

based on the Stringham case and entitled ..

no more weight than the statements in that

case.

Id. at 279 (footnotes and internal citations omitted).

F. The National Trails System Improve-

ments Act Of 1988.

In 1983, Congress amended the National Trails

System Act to transform abandoned railroad ROWs

into recreational trails. National Trails System Act

Amendments of 1983, Pub. L. No. 98-11, 97 Stat. 42,

codified at 16 U.S.C. §§ 1241-1251. Although lauda-

ble, that goal has often clashed with private property

interests. See generally, Preseault v. I.C.C., 494 U.S. 1

(1990) (“Preseault I”); Preseault v. United States, 100

F.3d 1525 (Fed. Cir. 1996) (en banc) (“Preseault 11”).

Later, Congress passed the National Trails System

Improvements Act of 1988, Pub. L. No. 100-470, 102

Stat. 2281 (1988). Section 3 of that Act provides, in

relevant part:

Commencing October 4, 1988, any and all

right, title, interest, and estate of the United

States in all rights-of-way of the type de-

scribed in [43 U.S.C. § 912], shall remain in

the United States upon the abandonment or

forfeiture of such rights-of-way, or portions

thereof, except to the extent that any such

right-of-way, or portion thereof, is embraced

within a public highway no later than one

year after a determination of abandonment

or forfeiture, as provided under such section.

16 U.S.C. § 1248(c); App. 74. The Secretary of Agricul-

ture, in opposing this provision, noted it “assumes

that the United States has some remaining residual

interest in certain railway rights-of-way which could

be converted to recreation trail uses. That may or

may not be the case.” S. Rep. No. 408, 100th Cong.,

2nd Sess. at 10, reprinted in, 1988 U.S.C.C.A.N. 2607,

2614. The Secretary further explained, “[iJn our ex-

perience and from review of selected railroad grants

affecting National Forests, it appears that the United

States has residual property interests in few, if any,

rights-of-way over private land within National

Forest boundaries.”).

If. PROCEEDINGS BELOW.

Around 1908, the Laramie, Hahn’s Peak and

Pacific Railway Company was granted an 1875 Act

ROW. App. 13. The grant was for a two-hundred-foot-

wide ROW approximately 66 miles in length, that

ran from Laramie, Wyoming south to the Wyoming-

Colorado border. See id.

On February 18, 1976, the United States pat-

ented approximately 80 acres of land to Melvin M.

and Lulu M. Brandt, parents of Marvin M. Brandt.

App. 76-78. The patented land, which now comprises

Fox Park, Wyoming, is surrounded by the Medicine

Bow-Routt National Forest, and is essentially bi-

sected by the above-described 1875 Act ROW. App. 11-

13. Although the Patent expressly reserves certain

ROWs and road easements, it does not reserve any

interest in the 1875 Act ROW’. App. 76-78. Instead,

the Patent simply provides that the patented land is:

SUBJECT TO those rnghts for railroad pur-

poses as have been granted to the Laramie

Hahn’s Peak & Pacific Railway Company, its

successors or assigns ... under the Act of

March 3, 1875, 43 U.S.C. 934-939.

App. 78.

In November 1987, Wyoming and Colorado Rail-

road Company, Inc. (“WYCO”), acquired the 1875 Act

ROW. App. 13. On May 15, 1996, WYCO filed a Notice

of Intent to Abandon Rail Service with the Surface

Transportation Board (“STB”) seeking to abandon the

1875 Act ROW including the portion that traversed

the Brandts’ property. Jd. On December 31, 2003, the

STB approved abandonment of the 1875 Act ROW,

and, on January 15, 2004, WYCO notified the STB

that it had consummated abandonment. App. 13-14.

On July 14, 2006, the United States filed suit in

the U.S. District Court for the District of Wyoming

seeking a judicial decree of abandonment, under 43

U.S.C. § 912, for approximately 28 miles of the 1875

Act ROW that was within the National Forest. App.

10-11. The United States also sought to quiet title

against the Brandts and approximately 50 other

private landowners over whose lands that 28-mile

segment of the 1875 Act ROW crossed.* See App. 11-

12. The United States’ claim was based primarily

on the Tenth Circuit’s decision in Marshall v. Chicago

& Northwestern Transportation Co., 31 F.3d 1028

(10th Cir. 1994), which had ruled that the United

States retained an implied reversionary interest in

an 1875 Act ROW and, upon a judicial decree of

abandonment, that implied reversionary interest was

transferred to the underlying fee owner pursuant to

43 U.S.C. § 912. App. 15-18. The United States’ claim

was also based upon 16 U.S.C. § 1248(c), which,

according to the United States, modified 43 U.S.C.

§ 912, so the United States retained the implied re-

versionary interest in 1875 Act ROWs upon a judicial

decree of abandonment. App. 18-21.

The Brandts answered and filed a counterclaim

seeking to quiet title to the abandoned 1875 Act

ROW. App. 12. The Brandts argued, inter alia, that,

' The United States also sued WYCO, which stipulated to

the entry of judgment that it had abandoned the relevant seg-

ment of the 1875 Act ROW. App. 60-61. The United States either

settled with, or obtained default judgments against, all the land-

owners except the Brandts.

* The Brandts also sought to quiet title to two road ease-

ments that burden their property. App. 31-56. That claim is not

at issue here. The Brandts also counterclaimed for just compen-

sation if the district court were to hold that the United States

acquired some kind of property interest in the abandoned 1875

Act ROW under 16 U.S.C. § 1248(c). This counterclaim was dis-

missed without prejudice. App. 62-66. After final judgment by

the district court and before filing their Tenth Circuit appeal,

the Brandts filed a takings claim in the Court of Federal Claims,

(Continued on following page)

under this Court’s decision in Great Northern, the

1875 Act ROW was an easement. App. 21-24. As such,

43 U.S.C. § 912 and 16 U.S.C. § 1248(c) did not apply.

Id. Instead, because neither the 1875 Act nor the

Patent expressly reserved any interest in the ROW,

the Brandts acquired fee title to their patented land

“subject to” the railroad easement. Jd. And, upon

abandonment by WYCO, the Brandts’ property be-

came unburdened by the 1875 Act ROW. /d. In sup-

port of that argument, the Brandts relied primarily

on the Federal Circuit’s decision in Hash v. United

States, 403 F.3d 1308 (Fed. Cir. 2005) and the Court

of Federal Claims decision in Beres v. United States,

64 Fed. Cl. 403 (2005) (“Beres I”), both of which held

that the United States did not retain implied rever-

sionary interests in 1875 Act ROWs and when 1875

Act ROWs are abandoned the underlying fee is un-

burdened by the easement.

On April 8, 2008, the district court ruled that,

under the Tenth Circuit’s decision in Marshall, the

United States had an implied reversionary interest in

alleging that the district court’s actions in vesting title in favor

of the United States and expanding the scope of the 1875 Act

ROW to include a recreational trail effectuated a taking. That

case was initially stayed pending the outcome of this case. After

this Court’s ruling in United States v. Tohono O'odham Nation,

__ U.S. __, 131 S. Ct. 1723 (2011), the stay was lifted and the

case was dismissed. Brandt v. United States, 102 Fed. Cl. 72

(2011), appeal pending, No. 2012-2050 (Fed. Cir.). If the Brandts

are successful here, that would necessarily render their takings

case moot.

the 1875 Act ROW under 43 U.S.C. § 912. App. 26-30.

Then, through application of 16 U.S.C. § 1248(c), the

district court declared that the implied reversionary

interest became vested in the United States. Jd. Al-

though the district court acknowledged “the split in

the circuits” it was compelled to “follow the law

promulgated by the Tenth Circuit... .” App. 27.

Almost one year later, the district court entered

judgment in favor of the United States and against

the Brandts. App. 57-59. That judgment provides

that: (i) the 1875 Act ROW, where it traverses the

Brandts’ property, has been abandoned by WYCO for

all purposes, including 16 U.S.C. § 1248(c) and 43

U.S.C. § 912; (ii) the United States retained a rever-

sionary interest in the ROW; (iii) as a result of the

abandonment by WYCO, title to the ROW is “hereby

vested and quieted in the United States”; and (iv) fee

title to the Brandts’ property remains with the

Brandts subject to the rights of the United States

in the ROW. Id. Although not pleaded, argued, or

proven by the United States, that judgment also

provides “(t]hat the interest quieted and vested in the

United States includes the right to construct and

operate a recreational trail on the railroad right-of-

way|.]” App. 59 (emphasis added).

On April 29, 2009, the Brandts timely appealed.

Over three years later, on September 11, 2012, the

Tenth Circuit issued a per curiam decision affirming

the district court’s judgment. App. 1-9. Based upon

Marshall, the Tenth Circuit ruled that the United

States had an implied reversionary interest in the

1875 Act ROW and, upon the judicial decree of aban-

donment, the United States retained that implied

reversionary interest through operation of 43 U.S.C.

§ 912 and 16 U.S.C. § 1248(c). App. 3-6. In so doing,

the Tenth Circuit acknowledged the circuit split,

which now includes the Seventh Circuit:

Though we recognize that the Seventh Cir-

cuit, the Federal Circuit and the Court of

Federal Claims have concluded that the

United States did not retain any reversion-

ary interest in these railroad rights-of-way,

we are bound by our precedent. Thus, the

district court correctly held that the interest

in the abandoned railroad right-of-way be-

longs to the United States.

App. 5-6 (internal citations omitted).

On October 24, 2012, the Brandts filed a petition

for rehearing en banc and/or panel rehearing in an

effort to try to resolve the circuit split. That petition

was denied on December 26, 2012, prompting this

Petition for Writ of Certiorari. App. 67-68.

REASONS FOR GRANTING THE PETITION

This Court’s review is warranted because the

Tenth Circuit’s decision conflicts with this Court’s

precedent in two important respects. First, the Tenth

Circuit’s decision conflicts with this Court’s decision

in Great Northern, wherein this Court, at the urging

of the United States, held that 1875 Act ROWs were

easements and not limited fees with an implied

condition of reverter. It is axiomatic that when the

United States grants an easement across its lands

it does not retain a reversionary interest in the

easement, but merely retains the underlying fee

burdened by the easement. When the underlying fee

is subsequently patented into private ownership

without a reservation, the patentee receives full fee

title burdened by the easement. Thus, the Tenth

Circuit’s ruling that the United States retained an

implied reversionary interest in the 1875 Act ROW

cannot be reconciled with this Court’s ruling in Great

Northern.

Second, the Tenth Circuit’s decision is incon-

sistent with this Court’s ruling in Leo Sheep that a

patent conveys all right, title, and interest of the

United States, except those interests expressly re-

served in the granting statute or the patent itself.

Neither the 1875 Act, nor the Patent, expressly re-

served a reversionary interest in the 1875 Act ROW.

Thus, when the United States issued the Patent

to the Brandts’ predecessors “subject to” the ROW,

the United States conveyed the underlying fee bur-

dened by the easement and retained no right, title, or

interest in the 1875 Act ROW. Therefore, the Tenth

Circuit’s ruling that the United States retained an

implied reversionary interest in the 1875 Act ROW

conflicts with this Court’s ruling in Leo Sheep.

This Court’s review is also necessary because the

Tenth Circuit acknowledged that its decision conflicts

with decisions of the Federal Circuit and the Seventh

Circuit. There is also uncertainty in the state courts

regarding whether the United States retained an

implied reversionary interest in 1875 Act ROWs. The

split between the circuits and the uncertainty in the

state courts justifies this Court’s review.

Finally, this Court’s review is necessary because

the Tenth Circuit’s decision upsets the settled expec-

tations of potentially thousands of landowners who

trace their title to patents that were issued “subject

to” 1875 Act ROWs. If the Tenth Circuit’s decision is

allowed to stand, those landowners’ only recourse

would be to seek just compensation, with the concom-

itant burden on the taxpayers. Even if available, just

compensation is cold comfort for the disruption and

inconvenience of having a public recreational trail on

one’s property. because Congress did not intend for

this result when it passed the 1875 Act and autho-

rized the patenting of land “subject to” 1875 Act

ROWs, this Court’s review is imperative.

I. THE TENTH CIRCUIT'S RULING THAT

THE UNITED STATES RETAINED AN IM-

PLIED REVERSIONARY INTEREST IN

1875 ACT ROWS CONFLICTS WITH THIS

COURT’S RULING IN GREAT NORTHERN.

In Great Northern, this Court emphatically ruled

that 1875 Act ROWs were easements. 315 U.S. at

277. Fifteen years later, this Court reaffirmed that

ruling. United States v. Union Pacific R. Co., 353 U.S.

112, 119 (1957) (“Union Pacific”) (In Great Northern

“we noted that a great shift in congressional policy

occurred in 1871: that after that period only an ease-

ment for railroad purposes was granted... .”).” Even

the Tenth Circuit has recognized this Court’s ruling

in Great Northern that 1875 Act ROWs were ease-

ments. Chicago & N. W. Ry. Co. v. Continental Oil

Co., 253 F.2d 468, 470-71 (10th Cir. 1958) (“[T]he ap-

pellants acknowledge, as indeed they must, the de-

cisional force of [Great Northern] to the effect that the

interest acquired by the railroad under the 1875 Act

was merely an easement... .”); Wyoming v. Udall, 379

F.2d 635, 638 (10th Cir. 1967); Wyoming v. Andrus, 602

F.2d 1379, 1382 (10th Cir. 1979). More importantly,

the DOI regulation in effect when the United States

issued the Brandts’ Patent confirmed that 1875 Act

ROWs were easements: “[a} railroad company to

which a[n] [1875 Act] right-of-way is granted does not

secure a full and complete title to the land on which

the right-of-way is located. It obtains only the right to

* Union Pacific involved the 1862 Pacific Railroad Act. 353

U.S. at 113. Although this Court ruled that the railroad did not

own the minerals underneath the ROW (id. at 114-17) and

thereby, perhaps, lessened pre-1871 railroad ROWs, this Court

did not alter the ruling in Great Northern that 1875 Act ROWs

are easements. See Solicitor’s Opinion M-37025, Partial With-

drawal of M-36964 — Proposed Installation of MCI Fiber Optic

Communications Line Within Southern Pacific Transportation

Co.'s Railroad Right-of-Way, 6 (Nov. 4, 2011), available at http://

www.doi.gov/solicitor/opinions/M-37025. pdf (last visited Mar. 14,

2013) (“After the Union Pacific decision, Great Northern’s dis-

tinction between pre-1871 and 1875 Act ROWs remains relevant

to determining what rights a railroad received. . .”).

use the land for the purposes for which it was granted

and for no other purpose... .” 43 C.F.R. § 2842.1(a)

(1976), reproduced at App. 75 (emphasis added).”

It is axiomatic that when a landowner, such as

the United States, grants an easement across its

lands it does not retain a reversionary interest in the

easement, but merely retains the underlying fee

burdened by the easement.’ Preseault I], 100 F.3d at

1533 (When a fee owner conveys an easement across

its land the fee owner retains “a present estate in fee

simple, subject to the burden of the easement.”).

* This regulation was originally published in 1909, Right-of-

Way Railroads, 37 L.D. 787, 788 (1909) and was later codified as

43 C.F.R. § 243.2 (1938). In 1970, it was recodified as 43 C.F.R.

§ 2842 l(a). 35 Fed. Reg. 9,502, 9,649 (June 13, 1970). Although

this regulation was ultimately rescinded after passage of

FLPMA, see 45 Fed. Reg. 44,518 (July 1, 1980), it had the force

and effect of law when the Brandts’ Patent was issued. United

States v. Nixon, 418 U.S. 683, 695 (1974) (“So long as [a] regula-

tion is extant it has the force of law.”).

* At common law, a reversionary interest in a non-freehold

estate, such as an easement, could not exist. Preseault, 100 F.3d

at 1533; see Restatement (First) of Property § 154, comment f

(1936). These common law principles are important because “[n]|o

statute is to be construed as altering the common law, farther

than its words import. It is not to be construed as making any

innovation upon the common law which it does not fairly ex-

press.” Shaw v. Merchants’ Nat. Bank, 101 U.S. 557, 565 (1879).

Thus, “liJn order to abrogate a common-law principle, the stat-

ute must speak directly to the question addressed by the com-

mon law.” United States v. Texas, 507 U.S. 529, 534 (1993)

{quotation omitted). There is no evidence that Congress sought

to abrogate the common law definition of easement in passing

the 1875 Act.

When the easement is abandoned, the underlying fee

becomes unburdened. /d. at 1545 (citing Restatement

(First) of Property § 504 (1944)); Toews v. United

States, 376 F.3d 1371, 1376 (Fed. Cir. 2004) (“[A]s

a matter of traditional property law terminology, a

termination of the easements would not cause any-

thing to ‘revert’ to the landowner. Rather, the burden

of the easement would simply be extinguished, and

the landowner’s property would be held free and clear

of any such burden.”); Nat'l Wildlife Fed'n v. ICC, 850

F.2d 694, 703 n.13 (D.C. Cir. 1988) (“Because an ease-

ment is a servitude, rather than an estate in land, it

is not strictly accurate to speak of an easement ‘re-

verting’; rather, such interests ‘lapse’ or are ‘extin-

guished.’”).

Thus, the Tenth Circuit’s ruling that the United

States somehow retained an implied reversionary

interest could be sustained only if the 1875 Act ROW

were a limited fee — a concept this Court expressly

rejected in Great Northern. Moreover, the United

States has recently again embraced this Court’s rul-

ing in Great Northern that 1875 Act ROWs are ease-

ments. See Geneva Rock Products v. United States,

107 Fed. Cl. 166, 170 (2012) (class action in which the

United States stipulated that an 1875 Act ROW was

an “easement”); Solicitor’s Opinion M-37025, supra,

at 2-9 (recognizing the ruling in Great Northern that

1875 Act ROWs are easements and rejecting an 1989

Solicitor’s Opinion that had characterized them as an

interest “‘tantamount’” to a fee.); App. 82 (same).

Therefore, this Court should grant review to ensure

consistency with Great Northern, especially consider-

ing the important property interests at stake and

that the United States has now disavowed the con-

cept upon which the Tenth Circuit’s ruling was neces-

sarily premised.

Il. THE TENTH CIRCUIT’S RULING THAT

THE UNITED STATES RETAINED AN IM-

PLIED REVERSIONARY INTEREST IN

1875 ACT ROWS CONFLICTS WITH THIS

COURTS PRECEDENT REGARDING THE

SANCTITY OF PATENTS AND _ THIS

COURT'S RULING IN LEO SHEEP.

“A patent is the highest evidence of title, and is

conclusive as against the Government... .” United

States v. Stone, 69 U.S. 525, 535 (1864). In addition,

when a patent is issued, all right, title, and interest

passes from the United States, except only those in-

terests expressly reserved in the granting statute or

the patent itself. See Moore v. Robbins, 96 U.S. 530,

533 (1877) (When a “patent issued under the seal of

the United States ... is delivered to and accepted by

the party, the title of the government passes with this

delivery. With the title passes away all authority or

control of the Executive Department over the land,

and over the title which it has conveyed.”); Swendig

v. Washington Water Power Co., 265 U.S. 322, 331

(1924) (“[W]hen a patent issues in accordance with

governing statutes, all title and control of the land

passes from the United States”).

For example, in Leo Sheep, this Court expressly

rejected the idea that the United States could retain

property interests not expressly reserved in the land

grant statute or patent. In that case, the Tenth Cir-

cuit ruled that the United States impliedly reserved

an easement for access across lands patented under

the Pacific Railroad Acts. Leo Sheep, 440 U.S. at 678.

As that ruling affected 150 million acres of land in

the western United States, this Court granted certio-

rari. Jd. at 678, 688. Because neither the Pacific

Railroad Acts, nor the patents, expressly reserved an

easement for access, this Court ruled that it would

not endeavor to “divin{e] some ‘implicit’ congressional

intent” to reserve an easement for access. Jd. at 679

(quoting Missouri, K. & T: R. Co. v. Kansas Pacific R.

Co., 97 U.S. 491, 497 (1878)); cf. St. Joseph & Denver

City R. Co. v. Baldwin, 103 U.S. 426, 430 (1880)

(Had Congress intended to qualify a pre-1871 ROW

grant, “it can hardly be doubted that it would have

been expressed. The fact that none is expressed is

conclusive that none exists.”); United States v. Great

N. Ry. Co., 343 U.S. 562, 575 (1952) (“It is our judicial

function to apply statutes on the basis of what Con-

gress has written, not what Congress might have

written.”). Thus, in reversing the Tenth Circuit, this

Court concluded:

Generations of land patents have issued

without any express reservation of the right

now claimed by the Government. Nor has a

similar right been asserted before.... This

Court has traditionally recognized the spe-

cial need for certainty and predictability

where land titles are concerned, and we are

unwilling to upset settled expectations to

accommodate some ill-defined power to con-

struct public thoroughfares without compen-

sation.

Id. at 687-88 (footnote omitted) (emphasis added).

Leo Sheep is equally applicable here. First, the

United States’ assertion that it retained implied

reversionary interests in 1875 Act ROWs is of recent

vintage. See Amerada Hess Corp., 24 IBLA 360, 365-

370 (1976) (ruling an 1875 Act ROW is an easement

and the United States did not impliedly reserve the

mineral estate when the underlying land was pat-

ented into private ownership); Wyoming v. Udall, 379

F.2d at 640 (noting that the United States conceded

that with post-1871 ROW grants, “title to the servient

estate passes without express mention in a subse-

quent grant by the United States of the traversed

tract”); Beres I, 64 Fed. Cl. at 426 (suggesting that the

United States’ assertion that it retained an implied

reversionary interest in 1875 Act ROWs may have

been prompted by passage of the National Trails

System Improvements Act of 1988).

Second, it is undisputed that the United States

did not expressly reserve a reversionary interest in

the 1875 Act. App. 69-71. Nor did the Patent ex-

pressly reserve a reversionary interest in the 1875

Act ROW. App. 76-79. Instead, in accordance with

Section 4 of the 1875 Act the Patent merely provides

that the Brandts’ property is “SUBJECT TO those

rights for railroad purposes as have been granted to

the Laramie Hahn’s Peak & Pacific Railway Com-

pany....” App. 78. As explained by the extant DOI

regulation, this language does not reserve an interest;

it merely advises that the patented land is burdened

by an easement. App. 75 (“the patentee takes the fee

subject only to the railroad company’s right of use

and possession”); see Smith v. Townsend, 148 U.S.

490, 499 (1893) (Interpreting post-1871 railroad ROW

act and concluding, “[djoubtless whoever obtained

title from the government .. . through which ran this

right of way would acquire a fee to the whole tract,

subject to the easement of the company; and if ever the

use of that right of way was abandoned by the rail-

road company, the easement would cease, and the full

titie to that right of way would vest in the patentee of

the land.” (emphasis added)); Home on the Range v.

AT&T Corp., 386 F. Supp. 2d 999, 1016-24 (S.D. Ind.

2095) (patentee receives land underlying 1875 Act

ROW “subject to” an easement for railroad purposes).

Once the easement is abandoned, the easement is ex-

tinguished and the underlying fee is no longer bur-

dened. City of Aberdeen v. Chicago & N. W. Transp.

Co., 602 F. Supp. 589, 593 (D.S.D. 1984) (“As a mere

easement, once a railroad ceases using for railroad

purposes a right-of-way granted after 1871, it disap-

pears and the underlying landowner has the use of

property he already owns.” (emphasis in original)). As

a result, if the United States had wanted to retain a

reversionary interest in the 1875 Act ROW, it had an

obligation to expressly reserve such an interest, just

as it “reservied]” a ROW “for ditches or canals” and

two road easements in the Patent. App. 76-77; Leo

Sheep, 440 U.S. at 678-82 (expressed reservations in

a patent negate the existence of implied reserva-

tions).

Accordingly, the Tenth Circuit’s ruling that the

United States retained an implied reversionary in-

terest in the 1875 Acts ROW is in conflict with this

Court’s precedent regarding the sanctity of patents

and this Court’s ruling in Leo Sheep. Therefore, this

Court should grant review to resolve this conflict.

Il. THE TENTH CIRCUIT'S RULING THAT

THE UNITED STATES RETAINED AN IM-

PLIED REVERSIONARY INTEREST IN

1875 ACT ROWS CONFLICTS WITH DECI-

SIONS FROM THE FEDERAL AND SEV-

ENTH CIRCUITS.

In affirming the district court that the United

States retained an implied reversionary interest in

the 1875 Act ROW, the Tenth Circuit ruled that it had

to follow “circuit precedent|,]” primarily Marshall."

" Other Tenth Circuit decisions after Marshall have not

independently analyzed whether the United States retained an

implied reversionary interest in 1875 Act ROWs. Phillips Co. v.

Denver & Rio Grande Western R.R. Co., 97 F.3d 1375 (10th Cir.

1996); Nicodemus v. Union Pac. Corp., 440 F.3d 1227 (10th Cir.

2006). In Phillips, the issue was whether authorization from the

ICC to abandon an 1875 Act ROW was a prerequisite for judicial

decree of abandonment under 43 U.S.C. § 912. 97 F.3d at 1376.

In Nicodemus, the issue was whether the interpretation of

federal railroad acts involved a federal question. 440 F.3d at

1234-37. In a footnote, the Tenth Circuit stated only that 43

(Continued on following page)

App. 5-6. As demonstrated below, the Tenth Circuit's

reasoning in Marshall was erroneous and has been

rejected by the Federal and Seventh Circuits.

A. The Tenth Circuit Incorrectly Ruled

That The United States Retained An

Implied Reversionary Interest In 1875

Act ROWs.

In Marshall, a railroad holding an 1875 Act ROW

applied to the ICC for abandonment of its ROW. 31

F.3d at 1028-29. Before the ICC approved the aban-

donment, the railroad had transferred all its interest

in the ROW to third parties. Jd. at 1029. Thereafter,

the underlying fee owners filed suit against the

railroad and its grantees seeking a judicial decree of

abandonment under 43 U.S.C. § 912 and a declava-

tion quieting title in the ROW in their favor. Jd. The

railroad and its tranferees defended by arguing that

43 U.S.C. § 912 did not apply to 1875 Act ROWs. Id.

at 1030. The district court ruled that 43 U.S.C. § 912

applies to 1875 Act ROWs, issued a judicial decree of

abandonment, and quieted title in favor of the under-

lying fee owners. Id. at 1029-30.

On appeal, the Tenth Circuit affirmed that 43

U.S.C. § 912 applies to 1875 Act ROWs. Id. at 1032.

In so doing, the Tenth Circuit concluded that 43

U.S.C. § 912 evinces Congress’ belief that the United

U.S.C. § 912 applied to pre-1871 ROWs that were limited fees.

Id. at 1236 n.9.

States retained an implied reversionary interest in

1875 Act ROWs. Id. at 1031 (In passing 43 U.S.C.

§ 912, “‘Congress clearly felt that it had some re-

tained interests in [1875 Act] railroad right-of-way.”

(quoting State of Idaho v. Oregon Short Line R.R. Co.,

617 F.Supp. 207 (D. Idaho 1985) (“Oregon Short

Line”))). Based upon Oregon Short Line, the Tenth

Circuit also suggested that 43 U.S.C. §912 must

apply to 1875 Act ROWs, otherwise 43 U.S.C. § 912

would have no meaning. Marshall, 31 F.3d at 1032.

Then, by applying 43 U.S.C. § 912, the Tenth Circuit

ruled that this implied reversionary interest was

transferred to the underlying fee owners. Jd. at 1031-

32. Although the outcome that the underlying fee

owners owned the ROW was correct, the Tenth Cir-

cuit’s reasoning reveals three fundamental errors.

First, the Tenth Circuit erred when it ruled that

43 U.S.C. § 912 was “designed to cover the situation

where the United States grants a railroad company a

right of way over public lands and thereafter conveys”

the underlying fee. Jd. at 1032 (emphasis added). This

ruling cannot be squared with the plain language in

43 U.S.C. § 912, that it applies only when “public

lands of the United States have been or may be

granted to any railroad company for use as a right

of way for its railroad....” App. 72 (all emphasis

added). Use of the terms “public lands” and “granted,”

indicates that Congress intended 43 U.S.C. § 912

to apply only to those ROWs that were limited fees.

This conclusion is supported by other language in

43 U.S.C. § 912 that provides “the transfer of such

lands shall be subject to and contain reservations in

favor of the United States of all oil, gas, and other

minerals in the land....” App. 73. ROWs that are

easements do not afford the United States the luxury

of reserving minerals. Great Northern, 315 U.S. at

275 (“[Ijt is improbable that Congress intended by

[the 1875 Act] to grant more than a right of passage,

let alone mineral riches.”). It is undisputed that the

Brandts own the minerals underlying the ROW. App.

59. This is entirely consistent with the conclusion

that the 1875 Act ROW was an easement; yet, en-

tirely inconsistent with the Tenth Circuit’s ruling that

the United States retained an implied reversionary

interest.

Second, the Tenth Circuit erred when it ruled

that 43 U.S.C. § 912 must apply to 1875 Act ROWs,

otherwise 43 U.S.C. § 912 would have no meaning.

Marshall, 31 F.3d at 1032. The flaw with this ruling

is that the Tenth Circuit was trying too hard to give

43 U.S.C. §912 meaning vis-a-vis 1875 Act ROWs

while ignoring what happened before and after pas-

sage of 43 U.S.C. § 912. Congress passed 43 U.S.C.

§ 912 to remedy this Court’s decision in Stringham

that 1875 Act ROWs were limited fees made on an

implied condition of reverter. Indeed, this is evident

from 43 U.S.C. §912’s plain language (App. 72-73)

and its legislative history:

The [1875 Act], under which most of the

rights of way over public lands have been

granted contains a _ provision for forfei-

ture.... Under the decision of the courts

railroad companies receiving such grants

take a qualified fee with an implied condition

of reverter in the event the companies cease

to use the lands for the purposes for which

they were granted. Upon abandonment or

forfeiture, therefore, of any portions of such

right of way the land reverts to and becomes

the property of the United States.

* * *

It seemed to the committee that such aban-

doned or forfeited strips are of little or no

value to the Government and that in case of

lands in the rural communities they ought in

justice become the property of the person to

whom the whole of the legal subdivision had

been granted or his successor in interest.

Granting such relief in reality gives him only

the land covered by the original patent.

H.R. Rep. No. 217, 67th Cong., Ist Sess., quoted in S.

Rep. No. 388, 67th Cong., 2nd Sess., at 1-2 (all em-

phasis added). Thus, 43 U.S.C. § 912 was Congress’

attempt to rid the United States of the little strips of

land it was saddled with as a result of Stringham. Id.

In fact, this is the very conclusion reached by the

Court of Federal Claims in Beres I, 64 Fed. Cl. at 419

(“It would appear that the language of the [43 U.S.C.

§ 912] was intended to address, clarify, and resolve

issues created by the imprecise language employed by

the courts on this subject in the early part of the

twentieth century... .”);' see also City of Aberdeen,

602 F. Supp. at 592-93 (“The legislative history of [43

U.S.C. § 912] reveals that it was intended to resolve

the problem of what to do with the narrow strips of

land used as railroad rights-of-way once they were

abandoned by the railroad company.”). Moreover, in

Great Northern this Court effectively eliminated

Congress’ perceived problem vis-a-vis 1875 Act ROWs

when it rejected Stringham and reaffirmed that 1875

Act ROWs were easements. That Great Northern may

have ended any application of 43 U.S.C. § 912 to 1875

Act ROWs is immaterial." Indeed, this Court can

limit the applicability of statutes simply because it is

“emphatically the province and duty of the judicial

department to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see

Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13

(1994) (“It is this Court's responsibility to say what a

statute means... . A judicial construction of a statute

is an authoritative statement of what the statute

“ Importantly, the Court of Federal Claims rejected the

reasoning in Marshall and held that the United States did not

retain an implied reversionary interest in 1875 Act ROWs. Beres

I, 64 Fed. Cl. at 419-28. The Court of Federal Claims later

reaffirmed this conclusion when it held that the scope of an 1875

Act ROW did not include the right to construct a public recrea-

tional trail. Beres v. United States, 104 Fed. Cl. 408, 443-57

(2012) (“Beres IT”).

Arguably, 43 U.S.C. § 912 still applies to pre-1871 ROWs

that are “tantamount” to fee interests. See Solicitor’s Opinion M-

37025, supra, at 2-9.

meant before as well as after the decision of the case

giving rise to that construction.”).

Third, the Tenth Circuit placed too much empha-

sis on Congress’ intent in 1922 when it passed 43

U.S.C. § 912. Marshall, 31 F.3d at 1032. Congress’

intent in 1922 could not alter Congress’ intent in

passing the 1875 Act or redefine previously granted

property interests. Amoco Prod. Co. v. S. Ute Indian

Tribe, 526 U.S. 865, 875 (1999) (“public land statutes

should be interpreted in light of ‘the condition of the

country when the acts were passed’” (quoting Leo

Sheep, 440 U.S. at 682); United States v. Price, 361

U.S. 304, 313 (1960) (“[T]he views of a subsequent

Congress form a hazardous basis for inferring the

intent of an earlier one.”); see Poverty Flats Land &

Cattle Co. v. United States, 788 F.2d 676, 683 (10th

Cir. 1986) (New views as to the scope of property in-

terests “arrived at long after a patent issued, or re-

vealed long after a patent issued, cannot change the

title the patentee received under the then prevail-

ing practice and decisions.”). As explained in Great

Northern, after 1871, Congress intended to grant

railroads only an easement and that is exactly what it

did in passing the 1875 Act. 315 U.S. at 274-79. Thus,

in 1908, when the United States granted the 1875

ROW in this case, it granted an easement. Even if

Congress could later redefine that previously granted

ROW to be a limited fee with an implied condition of

reverter, there is no evidence that it did. Instead, the

plain language of 43 U.S.C. §912 proves that Con-

gress was not redefining property interests, but

trying to avoid being saddled with little strips of land.

Therefore, notwithstanding what Congress may have

intended in passing 43 U.S.C. § 912, that could not

alter Congress’ intent in passing the 1875 Act or

redefine previously granted 1875 Act ROWs.

B. The Federal And Seventh Circuits Have

Rejected The Tenth Circuit’s Reasoning

And Concluded That The United States

Did Not Retain An Implied Reversion-

ary Interest In 1875 Act ROWs.

In Hash, the Federal Circuit dealt with a class

action that included landowners who traced their title

to patents issued “subject to” an 1875 Act ROW. 403

F.3d at 1313-17. These landowners sought just com-

pensation for a taking arising from the conversion of

an 1875 Act ROW into a recreational trail. Id. at

1310. The United States defended by arguing that,

under Marshall and 43 U.S.C. § 912, it retained an

implied reversionary interest in the 1875 Act ROW.

Brief for Appellee the United States, Hash v. United

States, Federal Circuit No. 03-1395, 2003 WL

25291552. The Federal Circuit rejected the United

States’ argument that it retained an implied rever-

sionary interest:

We conclude that the land . . . is owned in fee

by the landowners, subject to the railway

easement. ... On the railway’s abandonment

of its right-of-way these owners were disen-

cumbered of the railway easement. . . .

Hash, 403 F.3d at 1318; accord Ellamae Phillips Co.

v. United States, 564 F.3d 1367, 1370-74 (Fed. Cir.

2009).

More recently, in Samuel C. Johnson 1988 Trust

vu. Bayfield County, Wisconsin, 649 F.3d 799, 803-04

(7th Cir. 2011), the Seventh Circuit concluded that

1875 Act ROWs are easements and that the United

States did not retain a reversionary interest after the

underlying land was patented into private ownership.

In reaching this conclusion, the Seventh Circuit con-

sidered, but rejected, the reasoning in Marshall:

[Hash] and |Beres I] ... make better sense

than Marshall, as well as being supported by

the characterization in [Great Northern], of

the rights of way created under the 1875 Act

as “easements.” .. . If Marshall was correctly

decided, no one in 2011 who owned land sub-

ject to the 1875 Act — that is, land over which

there had once been a federal railroad right

of way — has a right to prevent the federal

government from recapturing the right of

way — of course without compensation — and

giving it away or selling it... .

Id.

As the foregoing demonstrates and as acknow]l-

edged by the Tenth Circuit, there is a split in the cir-

cuits as to whether the United States retained an

implied reversionary interest in 1875 Act ROWs. App.

5-6; see also City of Aberdeen, 602 F. Supp. at 592-93

(no implied reversionary interest in 1875 Act ROWs);

Vieux v. East Bay Reg’l Park Dist., 906 F.2d 1330,

1335 (9th Cir. 1990) (stating in dictum that 43 U.S.C.

§912 applies to both pre- and post-1871 railroad

ROWs). In addition, there is uncertainty among the

state courts on this same issue. Compare Brown v.

N. Hills Reg’l R.R. Auth., 732 N.W.2d 732, 740 (S.D.

2007) (no implied reversionary interest) with Whipps

Land & Cattle Co. v. Level 3 Communications, LLC,

658 N.W.2d 258, 266-67 (Neb. 2003) (implied rever-

sionary interest); Brown v. State, 924 P.2d 908, 916

(Wash. 1996) (same). Accordingly, this Court’s review

is vital to resolve the circuit split, dispel the uncer-

tainty in the state courts, and to restore “certainty

and predictability” regarding lands patented “subject

to” 1875 Act ROWs. See Petition of the United States

for Panel Rehearing, Hash v. United States, Federal

Circuit No. 03-1395, 2005 WL 4814437, *8 (United

States arguing that, because the Federal Circuit

disagreed with Marshall and, thereby, created a split,

similarly situated landowners could own different

property interests).

IV. THE ISSUE WHETHER THE UNITED

STATES RETAINED AN IMPLIED REVER-

SIONARY INTEREST IN 1875 ACT ROWS

IS OF NATIONAL IMPORTANCE AND THIS

CASE PRESENTS THE IDEAL OPPOR-

TUNITY TO RESOLVE THAT ISSUE.

The 1875 Act was a huge success as thousands

of miles of 1875 Act ROWs exist across the United

States.'' App. 80 (DOI advising that thousands of

miles of 1875 Act ROWs still exist); see Cecilia Fex,

The Elements of Liability in A Trails Act Taking: A

Guide to the Analysis, 38 Ecology L.Q. 673, 687 (2011)

(The 1875 Act “resulted in railroads crisscrossing

public lands nationwide.”); U.S. Department of the

Interior, Annual Reports of the Department of the

Interior for the Fiscal Year Ended June 20, 1904, 494-

502 (1904) (listing over 400 railroad companies that

had been granted 1875 Act ROWs). In accordance

with Congress’ intent, most of the lands underlying

these ROWs were patented to settlers under the

various Homestead Acts “subject to” the 1875 Act

ROW. See App. 70-71, 78. Through the years, many of

these homesteads were subdivided, so the number of

landowners whose land is burdened by 1875 Act

ROWs could be in the thousands, if not more. See

Beres II, 104 Fed. Cl. at 413 (listing over 30 land-

owners who traced their title to one patent issued

“subject to” an 1875 Act ROW). As these railroad

ROWs are abandoned, the issue of ownership will

necessarily arise. Landowners within the Seventh

Circuit may be able to quiet title to abandoned 1875

Act ROWs and, thereby, prevent their land from be-

coming a public recreational trail. In contrast, simi-

larly situated landowners in the Tenth Circuit will

not be able to quiet title, but will have to try to seek

just compensation — which would be paid for by the

The issue in the case affects more than just 1875 Act

ROWs. It is generally applicable to post-1871 railroad ROWs.

taxpayers. Just compensation, however, is cold com-

fort for having to endure the disruption and inconven-

ience of having essentially a “linear park” on one’s

property:

[I]t appears beyond cavil that use of these

easements for a recreational! trail — for walk-

ing, hiking, biking, picnicking, frisbee play-

ing, with newly-added tarmac pavement, park

benches, occasional billboards, and fences to

enclose the trailway — is not the same use

made by a railroad, involving tracks, depots,

and the running of trains.

Toews, 376 F.3d at 1376. Because Congress did not

intend for this result when it passed the 1875 Act and

authorized the patenting of land “subject to” 1875 Act

ROWs, this Court’s review is imperative.

Just compensation is not guaranteed because the statute

of limitations could be an obstacle for many landowners. See

Comment, Statutes of Limitations in Rails-to-Trails Act Com-

pensation Claims: The U.S. Court of Appeals for the Federal

Circuit Bends the Rules of Takings Law, 56 Cath. U. L. Rev.

1307, 1324-38 (2007).

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

STEVEN J. LECHNER, Esq.

Counsel of Record

JEFFREY W. McCoy, Esq.

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

(303) 292-1980 (facsimile)

lechner@mountainstateslegal.com

jmccoy@mountainstateslegal.com

Counsel for Petitioners

App. 1

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES

OF AMERICA,

Plaintiff-Counter-

Defendant-Appellee,

Vv.

MARVIN M. BRANDT,

Trustee of the Marvin M.

Brandt Revocable Trust,

MARVIN M. BRANDT

REVOCABLE TRUST,

Defendants-Counter-

Claimants-Appellants,

and

DANIEL K. McNIERNEY,

SUSAN McNIERNEY;

GINNY L OTTERSTEIN;

LAWRENCE R OTTERSTEIN;

NORMA J. BREAZEALE,

Defendants-Counter-

Claimants,

and

WYOMING AND COLORADO

RAILROAD COMPANY, INC-.;

GARY WILLIAMS; JOAN

WILLIAMS; GLENNA MARRS;

KENNETH R. LANKFORD, II;

KENNETH R. LANKFORD, SR.}

No. 09-8047

(D.C. No. 2:06-CV-

00184-ABJ)

(D. Wyo.)

App. 2

PATRICK R RINKER;

PATRICIA A. RINKER;

RONDAL WAYNE; EDMUND

L GRUBER; KATHLYNN A.

LAMBERT; DAVID M.

PEARCE; DOROTHY M.

PEARCE; ROBERT S.

PEARCE; STEVEN M.

PEARCE; TOBIN L. RATLIFF;

LYNDA L. RINKER; PATRICK

R RINKER; JANIS A. TAFFEE;

STEVEN P. TAFFEE,

Defendants.

RAILS TO TRAILS

CONSERVANCY,

Amicus Curiae.

ORDER AND JUDGMENT*

(Filed Sep. 11, 2012)

Before KELLY, O'BRIEN, and HOLMES, Circuit

Judges.

* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and collat-

eral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

App. 3

The Marvin M. Brandt Revocable Trust and Mr.

Brandt, Trustee, appeal from the district court's

judgment quieting title in the United States to cer-

tain property that crosses the trust’s property. United

States v. Marvin M. Brandt Revocable Trust, 2008 WL

7185272 (D. Wyo. 2008). The parties are familiar with

the facts and we need not restate them here. Suffice

it to say that the subject property is part of an aban-

doned right-of-way granted a railroad pursuant to the

General Railroad Right-of-Way Act of 1875, 43 U.S.C.

§ 934 (“1875 Act”) and a nearby government road,

Forest Service Road 512.

A. The Railroad Right-of-Way

The trust argues that the 1908 right-of-way

granted to the railroad (pursuant to the 1875 Act)

is like an ordinary easement that has been extin-

guished. It reasons as follows. The 1976 patent issued

to the trust’s predecessors-in-interest did not reserve

to the United States any interest in this easement; it

merely provided that the property was subject to the

easement for railroad purposes.’ Thus, when the

' The pertinent portions provide:

EXCEPTING AND RESERVING TO THE UNITED

STATES from the land granted a right-of-way thereon

for ditches or canals constructed by the authority of

the United States; and

RESERVING TO the United States, and its assigns, a

right-of-way for the existing Platte Access Road No.

512 over and across Tract No. 37... containing 3.30

acres, more or less; and

(Continued on following page)

App. 4

railroad administratively abandoned the easement (by

notifying the Surface Transportation Board (“STB”)

on January 15, 2004 that it would exercise its author-

ity to abandon the line), the easement was extin-

guished and the trust’s property was disencumbered.

Because the United States lacked any ownership

interest (as of October 4, 1988) in the right-of-way, it

could not claim through 16 U.S.C. § 1248(c) which

generally provides that the United States retains

rights in abandoned or forfeited railroad grants. Nor

could the United States claim through 43 U.S.C.

§ 912, which generally provided that the interest in

the right-of-way went to the adjacent landowner

RESERVING TO the United States, and its assigns, a

right-of-way for the existing Dry Park Road No. 517,

over and across Tract 37 ... containing 0.71 acres,

more or less.

Provided, that if for a period of five years, the United

States, or its assigns, shall cease to use the above

roads, or any segment thereof, for the purposes re-

served, or if at any time the Regional Forester deter-

mines that the roads, or any segment thereof, is no

longer needed for the purposes reserved, the easement

traversed thereby shall terminate. In the event of

such nonuse or such determination by the Regional

Forester, the Regional Forester shall furnish to the

patentees or, their heirs or assigns, a statement in re-

cordable form evidencing termination.

SUBJECT TO those rights for railroad purposes as

have been granted to the Laramie Hahn’s Peak & Pa-

cific Railway Company, its successors or assigns by

permit Cheyenne 04128 under the Act of March 3,

1875, 43 U.S.C. 934-939.

Apit. App. 92-93.

App. 5

given abandonment decreed by a court of competent

jurisdiction or an Act of Congress. The trust argues

that the district court should have quieted title in it,

not the United States.

Much of the trust’s argument is foreclosed by

circuit precedent which we are bound to follow. See

United States v. Spedalieri, 910 F.2d 707, 709 n.2, 710

n.3 (10th Cir. 1990). In Marshall v. Chicago &

Northwestern Transportation Co., 31 F.3d 1028, 1030-

32 (10th Cir. 1994), we held that § 912 applies to

grants under the 1875 Act. Relying upon Idaho uv.

Oregon Short Line R.R., 617 F. Supp. 207 (D. Idaho

1985), we concluded that the United States retained

an implied reversionary interest. Marshall, 31 F.3d at

1032. We subsequently applied § 912 on the issue of

whether a railroad had abandoned its right-of-way

such that adjacent landowners would take in Phillips

Co. v. Denver & Rio Grande Western R.R., 97 F.3d

1375 (10th Cir. 1996). And we have recognized that

§ 912 was modified by 16 U.S.C. § 1248(c) to pro-

vide that, as of October 4, 1988, interests in aban-

doned railroad rights-of-way generally revert to the

United States rather than adjacent landowners. See

Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1236

n.9 (10th Cir. 2006); Phillips, 97 F.3d at 1376 n.4.

We are unpersuaded by the remainder of the trust's

other arguments and efforts to distinguish and limit

the obvious contrary precedent. Though we recog-

nize that the Seventh Circuit, the Federal Circuit

and the Court of Federal Claims have concluded that

the United States did not retain any reversionary

App. 6

interest in these railroad rights-of-way, we are bound

by our precedent. See Samuel C. Johnson 1988 Tr. v.

Bayfield County, 649 F.3d 799, 803-04 (7th Cir. 2011);

Hash v. United States, 403 F.3d 1308, 1317 (Fed. Cir.

2005); Beres v. United States, 64 Fed. Cl. 403, 427-28

(2005). But see Darwin P. Roberts, The Legal History

of Federally Granted Railroad Rights-of-Way and the

Myth of Congress’s “1871 Shift”, 82 U. Colo. L. Rev.

85, 150-64 (2011) (criticizing this interpretation).

Thus, the district court correctly held that the inter-

est in the abandoned railroad right-of-way belongs to

the United States.

B. Forest Service Road 512

The trust argues that the 1976 patent reserved a

certain right-of-way in Road 512 and provided that it

would terminate if the United States ceased to use

the road or any segment. See supra n.1l. The trust

argues that it made a conclusive showing that an

obliterated segment of the Road 512 easement had

not been used for five years and therefore, title

should have been quieted in the trust, not the United

States. Aplt. Br. 48; Aplt. Reply Br. 25. The trust

relies upon the following: (1) the Forest Service pub-

lished a decision memorandum closing and obliterat-

ing a portion of the road and removed the road

surface, leveled the area, and planted grass on a

smaller portion, and (2) Mr. Brandt declared that, to

the best of his knowledge, the Forest Service had

not used any part of the easement for five years and

took issue with certain statements of Forest Service

App. 7

personnel about some of the claimed use. Aplt. App.

101; Aplee. Supp. App. 1-2. The trust argues that the

United States failed to present any evidence that the

obliterated portion had been used, and therefore the

entire Road 512 easement terminatea.

The district court considered the trust’s argu-

ment that non-use of Road 512 terminated the ease-

ments for Roads 512 and 517. Marvin M. Brandt

Revocable Trust, 2008 WL 7185272 at *16 & *17-18.

That is precisely the argument the trust made in

response to the United States’ motion for summary

judgment. 2:06-cv-00184-ABJ, ECF Doc. 147 at 25-26.

In its own motion for summary judgment, the trust

argued, consistent with its counterclaim, that non-use

of Road 512 terminated the easement for only Road

512. Aplt. App. 72; 2:06-cv-00184-ABJ, ECF Doc. 140

at 22-23.

The district court held chat the trust could not

create a genuine issue of material fact as to non-use

of Road 512 based upon Mr. Brandt’s affidavit that

the Forest Service did not use the closed portion of

Road 512. Marvin M. Brandt Revocable Trust, 2008

WL 7185272 at *17-18. The trust admits that Road

512 has been used as a private road and Mr. Brandt

allows the Forest Service, law enforcement, and

emergency personnel to enter through a gate at the

south end. Aplt. App. 71; Aplee. Supp. App. 2; Aplt.

Reply Br. 24-25. Instead, the trust argues that the

evidence submitted by the United States, Aplt. App.

151-56, listing over 30 incidents of use simply does

App. 8

not establish that the obliterated segment of Road

512 was used from 1996-2003.

Even assuming that the trust could create a gen-

uine issue of material fact as to use of the obliterated

portion of Road 512,° we would reject the contention

that non-use of part of the road is sufficient to termi-

nate the entire easement, be it Road 512 or Road 517,

or both. The meaning of “the easement traversed

thereby,” which defines what terminates upon non-

use, is the operative language. So as to give effect to

all of the terms, “the easement traversed thereby”

refers back to non-use of “the above roads |Road 512

or 517], or “any segment thereof.” The trust’s reading

essentially eliminates “any segment thereof.” Moreo-

ver, the language refers to easement in the singular

which is completely at odds with the argument the

district court considered: that non-use of one of the

roads, or a segment thereof, results in termination of

both easements, no matter the use being made of

each. We note that the trust did not contend (either in

its counterclaim or in the briefing) that non-use of a

segment of Road 512 results in the termination of the

easement in that segment, and we do not address it.

“ We reject the trust’s contention that the United States

failed to provide any evidence of use of the obliterated portion.

See Aplt. App. 151-56; Aplee. Supp. App. 8-11. Such a conclusion

would be particularly anomalous given summary judgment

standards which require that the evidence be viewed in the light

most favorable to the non-movant. Ricci v. DeStefano, 557 U.S.

557, 586 (2009).

App. 9

See Somerlott v. Cherokee Nation Distribs. Inc., 686

F.3d 1144, 1151-52 (10th Cir. 2012).

AFFIRMED.

Entered for the Court

Per Curiam

—$_$_

O’BRIEN, J. concurring.

{ join the Order and Judgment. I write separately

for a collateral reason. After oral argument I was

designated as author. Recently, because he was

concerned with the delay in disposition, Judge Kelly

reassigned the case and prepared the Order and

Judgment. I am solely responsible for, and deeply

regret, all delay in resolving this matter.

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

UNITED STATES

OF AMERICA,

Plaintiff,

VS.

MARVIN M. BRANDT

REVOCABLE TRUST, and

MARVIN M. BRANDT,

Defendants.

Case No. 06-CV-184-J

MEMORANDUM OPINION AND ORDER

(Filed Apr. 8, 2008)

This matter comes before the Court on cross

motions for summary judgment. The Court, having

carefully reviewed the motions and the materials

filed in support thereof and opposition thereto, and

being fully advised in the premises, FINDS that

plaintiff’s Motions for Summary Judgment on cross

claims should be GRANTED and defendant’s Motion

for Summary Judgment should be DENIED for the

reasons stated below:

BACKGROUND OF CASE

Plaintiff United States (the “Government”) brings

this action seeking a judicial declaration of abandonment

App. 11

of approximately 66 miles of railroad right-of-way

running from Laramie, Wyoming to the Colorado

border by way of Fox Park, Wyoming. Upon aban-

donment, the United States also seeks to quiet title to

the abandoned railroad right-of-way in the Govern-

ment. Defendant, Marvin M. Brandt Revocable Trust

and Marvin Brandt, trustee, (collectively “the Trust”)

assert that the Trust has a vested interest in the

railroad nght-of-way and opposes the Government’s

claim. The Trust also seeks to have the title to the

railroad right-of-way quieted in its favor. Pursuant to

Fed. R. Civ. P. 13(b), the Trust also filed a counter-

claim seeking to quiet title to a right-of-way easement

for Forest Service Road (“FSR”) 512. The Trust claims

the easement has been terminated by the United

States Forest Service. The road at issue also runs

through land owned by the Trust in Fox Park, Wyo-

ming. The Government disputes the road easement

has been terminated and alleges that the express

conditions of abandonment contained in the original

deed have not been met. The Government filed a mo-

tion for summary judgment pursuant to Fed. R. Civ.

P. 56(b) on the railroad right-of-way and FSR issues

and the Trust reciprocated in kind.

PROCEDURAL BACKGROUND

The Government filed its complaint with this

Court in July of 2006. It seeks a declaratory judgment

that the Wyoming-Colorado (“WYCO”) Railroad Com-

pany, Inc. right-of-way, lying within the Medicine

Bow National Forest in the State of Wyoming, had

App. 12

been abandoned. The Government also initiated this

action against twenty-six separate parties who may

have claimed an interest in the right-of-way. On

August 8, 2006, the Trust filed a counterclaim seek-

ing to quiet title to the railroad right-of-way in the

Trust. Also on August 8, 2006, the Trust filed a second

counterclaim against the Government seeking to

quiet title to a 0.2 mile section of FSR 512. On Octo-

ber 1, 2007, the Trust amended its second counter-

claim regarding the 0.2 mile section of FSR 512 to

include the entirety of FSR 512 that crosses the

Trust’s property (approximately 0.7 miles).

On October 10, 2007 the Government filed a

motion for summary judgment and a brief in support

of its motion against the Trust. Also on October 10,

2007, the Trust filed a motion for and brief in support

of summary judgment on its railroad right-of-way

counterclaim and its FSR 512 counterclaim against

the Government. On November 13, 2007 the Trust

filed its “Brief In Opposition” to the Government's

motion for summary judgment disputing the Gov-

ernment’s interest in the railroad right-of-way and

seeking to have all right, title, and interest in the

railroad mght-of-way quieted in the trust. Further,

the Trust argues that to quiet title in the Government

would constitute a Fifth Amendment taking requiring

just compensation. That same day, the Government

filed its response to the Trust’s motion for summary

judgment on the railroad right-of-way. Since the

parties’ last motions were filed, all parties but the

Trust have settled with the Government. Thus, the

App. 13

current action between the Government and the

Trust is the only matter remaining for this Court to

decide.

APPLICABLE FACTS AND PARTIES’ ARGUMENTS

ON RAILROAD RIGHT-OF-WAY REVERSION

FACTUAL BACKGROUND

HISTORY OF THE RAILROAD RIGHT-OF-WAY

In 1908, the Laramie, Hahn’s Peak and Pacific

Railroad Company (“LHPPR”) was granted a right-of-

way (ROW) for railroad purposes through the public

lands of the United States under the General Rail-

road Right-of-Way Act of 1875, 43 U.S.C §§ 934-030

(“1875 Act”). The grant was for a two-hundred foot

wide ROW, approximately 66 miles long. LHPPR

completed construction of the railroad from Laramie

to Colorado in 1911. Later, the Trust’s predecessor in

interest acquired Tract 37, Township 13 North, Range

78 West 6th P.M. by a patent issued from the United

States under 16 U.S.C. § 485 for 83.32 acres on

February 18, 1976. In November 1987, WYCO be-

came the latest successor to the LHPPR Company.

On May 15, 2001, WYCO filed a Notice of Intent

to Abandon Rail Service with the Surface Transpor-

tation Board (“STB”). The STB approved the aban-

donment petition subject to satisfaction of certain

abandonn.ent conditions. The STB removed the last

condition thus effecting its approval of the abandon-

ment of the rail line on December 31, 2003. On Janu-

ary 15, 2004, WYCO notified the Secretary of the STB

App. 14

that it had completed its abandonment of the rail

line.

RELEVANT STATUTES

In 1922, Congress passed the Abandoned Rail-

road Right-of-Way Act, codified at 43 U.S.C. § 912.'

Section 912 granted to landowners adjacent to previ-

ous railroad right-of-way grants any right and title

that the United States would have retained upon

abandonment. Congress later modified §912 by

passing the National Trails System Improvement Act

' 43 U.S.C. § 912 (1922). Section 912 states in relevant part:

Whenever public lands of the United States have been

or may be granted to any railroad company for use as

a right of way for its railroad. . and use or occupancy

of said lands for such purposes has ceased, or shall

hereafter cease, whether by forfeiture or abandon-

ment by said railroad company declared or decreed by

a court of competent jurisdiction or by Act of Congress,

then and thereupon all right, title, and interest, and

estate of the United States, except such part thereof

as may be embraced in a public highway legally estab-

lished within one year after the date of said decree or

forfeiture or abandonment be transferred and vested

in any person, firm, or corporation, assigns, or succes-

sors in title and interest to whom or to which title of

the United States may have been or may be granted,

conveying or purporting to convey the whole of the le-

gal subdivision or subdivisions traversed or occupied

by such railroad or railroad structures.

Id. (emphasis added).

App. 15

of 1988, codified at 16 U.S.C. § 1248(c).* By modifying

§ 912, the United States retained any and all rights

and interests in abandoned railroad rights-of-way

that would have been otherwise granted to adjacent

landowners under § 912 so long as those rights-of-

way had not been utilized as a public highway within

one year of abandonment. Section 912 requires a

judicial decree or Act of Congress to relinquish the

claim the Government retained upon abandonment.

As of the date of this memorandum no judicial decree

of abandonment of the railroad ROW has occurred.

THE GOVERNMENT'S ARGUMENTS

The Government contends that Tenth Circuit

case law supports its position that, upon abandon-

ment, all right, title, and interest in the railroad

ROW reverts to the Government. The Government

relies on Marshall v. Chi. & Nw. Transp. Co., 31 F.3d

* 16 U.S.C. § 1248ic). Section 1248(c) states:

Abandoned railroad grants; retention of rights: Com-

mencing upon October 4, 1988, any and all right, title,

interest, and estate of the United States in all rights-

of-way of the type described in section 912 of Title 43,

shall remain in the United States upon the abandon-

ment or forfeiture of such rights-of-way, or portions

thereof, except to the extent that any such right-of-

way, or portion thereof, is embraced within a public

highway no later than one year after a determination

of abandonment or forfeiture, as provided under such

section.

Id.

App. 16

1028 (10th Cir. 1994); Phillips Co. v. Denv. & Rio

Grande W. RR Co., 97 F.3d 1375 (10th Cir. 1996); and

Nicodemus v. Union Pac. R.R., 440 F.3d 1227 (10th

Cir. 2006).

In Marshall, the owners and successors in inter-

est of property adjacent to an abandoned railroad

ROW in Natrona County, Wyoming, brought an action

to quiet title against Chicago and Northwestern

Transportation Company (““CNWT”). Marshall v. Chi.

& Nw. Transp. Co., 31 F.3d 1028 (10th Cir. i994). In

1980, CNWT assigned a 60-foot-wide strip of its 200-

foot-wide ROW to an unaffiliated partnership. /d. at

1628. The partnership then assigned its interest to

Casper Creek Development, Inc. Jd. CNWT filed an

application for abandonment of the ROW with Inter-

state Commerce Commission, which was approved on

November 30, 1988. Jd. CNWT discontinued its use of

the ROW on January 15, 1989. Jd. In June of 1990,

CNWT conveyed the remaining 140 feet width of the

ROW to Forgey Ranch Company. Jd. The company

completed track removal near the end of August,

1990. Id.

In Marshall, the Tenth Circuit affirmed this

Court’s holding that 43 U.S.C. § 912 applies to both

pre-1871 and post-1871 grants for railroad rights-of-

way. The Tenth Circuit held in favor of the owners of

the adjacent land. The Court reasoned that:

' See supra note 1.

App. 17

[Section] 912 provides in essence that when

public lands of the United States have been

granted to any railroad company for use as a

right-of-way, and the railroad company

thereafter ceases to use and occupy the right

of way by, for example, abandonment, as de-

creed by a court of competent jurisdiction,

then all right, title, interest, and estate in

the right of way shall be transferred to and

vested in anyone to whom or to which title of

the United States may have been granted by

way of patent to convey the whole of the le-

gal subdivision previously traversed by the

right of way.

Marshall, 31 F.3d at 1031. The Tenth Circuit also

stated that:

[Section 912] is designed to cover the situa-

tion where the United States grants a rail-

road company a right of way over public

lands and thereafter conveys ... to another

the whole of the legal subdivision|s] . . . trav-

ersed or occupied by such railroad. [Which]

appears to cover the instant case.

Marshall, 31 F.3d at 1032 (internal citations omitted).

Finally, the Tenth Circuit stated: “In enacting these

statutes, Congress clearly felt that it had some re-

tained interest in railroad rights-of-way.” Marshall,

31 F.3d at 1032 (citing State of Idaho v. Or. Shortline

R.R., 617 F. Supp. 207 (D. Idaho 1985). Thus the

Tenth Circuit held that §912 applied to rights-of-

way like those at issue in Marshall and that when

the 2 rights-of-way are abandoned, the Government

App. 18

conveys its retained interest to the adjacent landown-

ers. See id.

The Government contends the holding in Marshall

is significant in the instant case because the Tenth

Circuit held that under § 912, the United States

retained an interest in abandoned 1875 Act railroad

rights-of-ways. The instant case concerns a grant for

a railroad ROW made under the 1875 Act. Therefore,

under the Tenth Circuit’s interpretation of § 912 in

Marshall, the United States retained an interest in

the WYCO ROW.

The Government cites PAillips for the proposition

that under § 1248(c) any right to an abandoned

railroad ROW remains in the United States. Phillips

Co. v. Denv. & Rio Grande W. RR Co., 97 F.3d 1375

(10th Cir. 1996). In Phillips, the owner of land adja-

cent to a railroad ROW sought a retroactive determi-

nation of abandonment and to quiet title to the ROW

pursuant to 43 U.S.C. §912 in order to avoid the

effects of 16 U.S.C. § 1248(c). Id. The court stated

that before § 912 can be given effect it must receive

authorization from the Interstate Commerce Com-

mission (“ICC”) to abandon the railroad ROW. Id. at

1377. The ICC, the agency responsible for approving

the abandonment, stated that it had no authority to

declare the railroad ROW abandoned retroactively.

Id. The Tenth Circuit held that it was compelled to

defer to the agency. Id. (citing Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).

The Court also held that once § 1248(c) had been

enacted, the reversionary interest was held by the

App. 19

United States and not adjacent landowners. /d. at

1376 n. 4.

The Government contends Phillips is relevant to

the instant case because the plaintiff sought a retro-

active declaration of abandonment of the rights-of-

way in order to circumvent the grasp of 16 U.S.C.

§ 1248(c). The Tenth Circuit did not address what role

§ 1248(c) plays in the final analysis of the case.

However, based on the language the Court employed,

any right an adjacent landowner received under § 912

was removed by Congress’s passage of § 1248(c) in

1988. The Government’s reasoning seems in accord

with this interpretation.

The Government points to the Tenth Circuit's

decision in Nicodemus v. Union Pacific Corp., 440

F.3d 1227 (10th Cir. 2006). In Nicodemus, landowners

sued Union Pacific Corp. for trespass and unjust

enrichment arising from the railroad’s grant of sub-

surface easements to telecommunications providers

for the right to install fiber-optic cables in its railroad

ROW. Nicodemus, 440 F.3d 1227. The District Court

of Wyoming dismissed the action for lack of federal

question jurisdiction. Nicodemus v. Union Pacific

Corp., 204 F.R.D. 479, 493 (D. Wyo. 2001) (holding the

interpretation of federal land grants to railroads is

not a substantial question of federal law so as to

afford federal question jurisdiction over state law

claims). The Tenth Circuit disagreed with this Court’s

decision. Nicodemus, 440 F.3d at 1229 (10th Cir.

2006). It held that the interpretation of federal land

App. 20

grants involved a substantial federal issue deserving

of the federal forum for resolving the issue. /d.

The Tenth Circuit stated that under 43 U.S.C.

§ 912:

[Lland given by the United States for use as

a railroad right-of-way in which the United

States retained a right of reverter under N.

Pac. R.R. v. Townsend, 190 U.S. 267 (1903)

must be turned into a public highway within

one year of ... abandonment or be given to

the adjacent land owners.

Nicodemus, 440 F.3d at 1236. The Nicodemus court

further explained that:

Subsequently Congress enacted the National

Trails System Improvement Act of 1988, 16

U.S.C. § 1248(c), under which those lands

not converted to public highways within one

year of abandonment revert back to the

United States, not adjacent private landown-

ers.

Id. Thus, that court held that “the United States has

a reversionary interest in the lands when no longer

used for the designated purposes ... [t]hus the gov-

ernment has a direct interest in the determination of

property rights granted to the railroad.” Id. The

Government relies on the holding in Nicodemus to

support its claim of a reversionary interest in the

railroad ROW at dispute in the instant case.

Finally, the Government denies the Trust’s asser-

tion that to quiet title in the Government constitutes

App. 21

a Fifth Amendment taking requiring just compensa-

tion. The thrust of the Government’s argument seems

to be that (1) under Marshall and Phillips, the United

States retained a reversionary interest to all rail-

road rights-of-way; (2) under § 912, if the ROW was

abandoned by the railroad then the United States

conveyed its reversion to the adjacent landowner;

(3) section 912 as modified by § 1248(c), retains the

reversion held by the United States under § 912 and

does not convey it to adjacent landowners; (4) follow-

ing the reasoning of the Tenth Circuit, the United

States never relinquished its reversion prior to aban-

donment, the railroad ROW never vested in the ad-

jacent landowner, and having never vested, retention

of the reverter cannot be viewed as a taking, i.e.,

you cannot lose what you never possessed. Retaining

this reversionary interest, the Government asks this

Court to decree the ROW abandoned and to quiet title

in the ROW in the Government.

THE TRUST’S ARGUMENTS

The Trust argues that the Government did not

retain a reverter in rights-of-way granted under the

Act of 1875. Citing recent federal decisions in support

of its argument, the Trust contends that this Court

should hold consistent with these decisions and grant

summary judgment in favor of the Trust. The Trust

also offers its line of decisions to support its argument

that to quiet title in the Government constitutes a

taking requiring just compensation.

App. 22

The Trust argues that WYCO received only an

easement in the Act of 1875. The Trust claims that

the Patent reserved a reversion to the owner of the

surrounding land and its predecessor-in-interest and

reserved nothing for the United States. Citing Hash

v. United States, 403 F.3d 1308 (Fed. Cir. 2005), the

Trust argues that 43 U.S.C. § 912:

require([d] the United States to convey any

rights it may have, to the patentee of the

land traversed by the abandoned ROW; it

does not say what rights the United States

had after the land patent was granted. In-

deed, if the United States did have residual

rights despite the patented land grant, then

the statute, [43 U.S.C. § 912], required that

the rights be conveyed to the private owner.

Hash, 403 F.3d at 1318. In Hash, landowners

brought a class action against the United States

challenging the conversion of an abandoned railroad

ROW. The district court held in favor of the United

States and the plaintiffs appealed. The plaintiffs

argued on appeal that the ROW across their land was

simply an easement. When the railroad abandoned

the ROW the easement would have reverted to them

but for the 1983 provisions of the National Trails

System Act.

Citing to the United States Supreme Court’s

reasoning in Presault v. 1.C.C., the Federal Circuit

Court of Appeals concluded that the land at issue was

App. 23

owned in fee by the landowners, subject to a railway

easement.‘ Upon the railway’s abandonment of its

ROW, the burdened estate owners were “disencum-

bered of the railway easement, and upon conversion

of this land to a public trail, these owners’ property

interests were taken for public use, in accordance

with the principles set forth in the Preseault cases.”

Hash, 403 F.3d at 1318. The Hash court remanded

the case to the district court to determine just com-

pensation on the taking. /d.

The Trust also points to Beres v. United States,

64 Fed.Cl. 403 (2005), decided shortly after Hash. In

Beres, the plaintiffs were fee owners of land that was

patented subject to a railroad ROW. Beres, 64 Fed.Cl.

at 403 (2005). The ROW at issue was transferred

pursuant to § 1247(d) to a land conservancy. Id. at

407. Looking to legislative history, statutory construc-

tion, precedent, and the patent at issue, the Beres

court held inapposite to this Court and the Tenth

* Preseault v. ICC, 494 U.S. 1,4-5 (1990) (holding that if

abandonment of railway and application of the Trails Act effects

a taking when the easement would otherwise revert to the

owner of the servient estate, the landowner may sue for compen-

sation under the Tucker Act). See also 28 U.S.C. § 149l(aX1)

(1982). The Tucker Act provides that the United States Court of

Federal Claims shall have jurisdiction to render judgment upon

any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an

executive department, or upon any express or implied contract

with the United States, or for liquidated or unliquidated damag-

es in cases not sounding in tort. Jd.

App. 24

Circuit.’ In essence, the Beres court held that when

Congress passed 43 U.S.C. § 912 it did so to confirm

the absence of any reversionary interest in the United

States and that the land, in agreement with congres-

sional intent, was reserved for homesteaders and for

educational purposes. Jd. at 425-27. Moreover, the

Beres court held that when Congress passed 16

U.S.C. § 1248(c) in 1988, the federal government no

longer held any reversionary rights in the land grant-

ed to the plaintiff’s predecessor-in-interest and that

16 U.S.C. § 1248(c) should not apply to the 1875 Act

which “intentionally omitted any words to create a

reversionary right in the United States.” /d.

Finally, the Trust refutes the arguments and case

law the Government offers as support relying instead

on Beres and Hash. In essence, the Trust lobbies this

Court to find the favorable holdings in Beres and

Hash persuasive even though the controlling Tenth

Circuit’s reasoning was rejected in those cases.

STANDARD OF REVIEW

Summary judgment is proper when there is no

genuine issue of material fact to be resolved at trial.

Fen. R. Civ. P. 56(c); Nebraska v. Wyoming, 507 U.S.

584, 590 (1993). Thus, a district court may grant

summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file,

* See e.g. Marshall, 31 F.3d 1028 (10th Cir. 1994).

App. 25

together with the affidavits, if any, show that there is

no genuine issue of material fact and that the moving

party is entitled to a judgment as a matter of law.”

Fep. R. Civ. P. 56(c); Nelson v. Geringer, 295 F.3d

1082, 1086 (10th Cir. 2002). “An issue of material fact

is genuine where a reasonable jury could return a

verdict for the party opposing summary judgment.”

Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797

(10th Cir. 1997).

In applying these standards, the district court

will view the evidence in the light most favorable to

the party opposing summary judgment. Jenkins v.

Wood, 81 F.3d 988, 990 (10th Cir. 1996). The movant

bears the initial burden of demonstrating the absence

of evidence to support the non-moving party's claims.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

When the non-moving party bears the burden of proof

at trial, the burden then shifts to it to demonstrate

the existence of an essential element of its case. Jd. To

carry this burden, the nen-moving party must go

beyond the pleadings and designate specific facts to

show there is a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Ford v.

West, 222 F.3d 767, 774 (10th Cir. 2000). The mere

existence of a scintilla of evidence in support of the

non-moving party’s position is insufficient to create a

“genuine” issue of disputed fact. Lawmaster v. Ward,

125 F.3d 1341, 1347 (10th Cir. 1997).

App. 26

DISCUSSION

Three points seem significant in analyzing the

parties’ arguments. First, the case law offered by the

Government is the law of this circuit. Second, the

case law offered by the Trust is inapposite to the law

of this circuit. In fact, the Tenth Circuit’s reasoning is

expressly rejected in both Hash and Beres. Third, the

conditional statement proffered by the United States

Supreme Court in Preseault, which Hash relies on,

does not result in a finding for the Trust.

Points one and two illustrate that there is an

obvious split in decisions among the federal circuit

courts. The Ninth Circuit has held that the United

States retains a reversionary interest in ROW grants.

See Vieux v. East Bay Regional Park District, 906 F.2d

1330, 1335 (9th Cir. 1990) (holding that § 912 applies

to grants made both before and after 1871 and the

United States retains a reversionary interest in those

grants of ROW). The Tenth Circuit has held that the

United States retains a reversionary interest in all

1875 Act ROWs. See e.g. Marshall, 31 F.3d at 1032

(10th Cir. 1994) (holding that § 912 was specifically

enacted to dispose of the United States retained

interest in 1875 Act rights-of-way). The Seventh

Circuit also has held that § 1248(c) “modifies § 912 to

the extent that now those lands not converted to

public highways ... revert to the United States.”

Mauler v. Bayfield County, 309 F.3d 997, 999 (7th Cir.

2002) (“Clearly Congress assumed the United States

retained a reversionary interest in railroad rights-of-

way, else it would make little sense for Congress to

App. 27

have passed laws like §912 ... [and] § 1248\(c)).

Interestingly, the Tenth Circuit points directly to

Mauler as a guide to the statutory framework regard-

ing disposition of railroad ROWs. Nicodemus, 440

F.3d at 1236 n. 9 (“For a general overview of this

statutory scheme, see Mauler v. Bayfield County.”).

Conversely, the Federal Circuit and the Federal

Claims Court have held that unless the patent grant-

ing the adjacent land expressly retains a reversion,

no reversion can be inferred. See e.g. Hash, 403 F.3d

at 1314 (stressing the “well-recognized rule that

property rights that are not explicitly reserved by the

grantor cannot be inferred to have been retained”).

Even in light of the split in the circuits, this Court is

bound to follow the law promulgated by the Tenth

Circuit and to hold that the government retained a

reversionary interest in 1875 Act rights-of-way even

in light of the language contained in § 912.

Point three illustrates how the Federal Circuit's

Hash decision relies on the United States Supreme

Court’s holding in Preseault v. United States for the

general rule that where a taking occurs, just compen-

sation should be received. See Hash, 403 F.3d 1308

(Fed. Cir. 2005); Beres, 64 Fed. Cl. 403 (2005). How-

ever, while the Supreme Court does offer that “even if

the rails-to-trails statute gives rise to a taking, com-

pensation is available to petitioners,” the primary

issue that faced the Court was whether reversions

under the Rails-to-Trails act were constitutional

under the Commerce Clause. See generally Preseault,

494 U.S. 1 (1990). The issue was not whether they

constituted a compensable taking. See id. Further,

App. 28

the Preseault Court noted that The Tucker Act, 28

U.S.C. § 1491(a)(1), provides exclusive jurisdiction in

the United States Claims Court “for any claim

against the Federal Government to recover damages”

in excess of $10,000. Jd. at 11. The Court also held

that the Federal Claims Court has jurisdiction over

any 16 U.S.C § 1247(d) takings claims in light of the

Tucker Act. /d. Thus the Court failed to address the

takings issue as the petitioner had not exhausted all

available remedies. /d.

Finally, Preseault is distinguishable from the

instant case. At issue in Preseault was 16 U.S.C

§ 1247(d).° Conversely, 16 U.S.C. § 1248(c) is the

“" Compare 16 U.S.C, § 1247(d) with 16 U.S.C. § 1248(c).

§ 1247(d) states in relevant part:

Consistent with the purpose of this Act, and in fur-

therance of the national policy to preserve established

railroad rights-of-way for future reactivation of rail

service, to protect rail transportation corridors, and to

encourage energy efficient transportation use, in the

case of interim use of established railroad rights-of-way

pursuant to donation, transfer, lease, sale, or otherwise

in a manner consistent with this chapter, if such inter-

im use is subject to restoration or reconstruction for

railroad purposes, such interim use shall not be treat-

vd, for any purpose of any law or any rule of law, as an

abandonment of the use of such rights-of-way for rail-

road purposes. If a State, politica] subdivision, or qualified

subdivision is prepared to assume full responsibility for

management of such rights-of-way .. then the Com-

mission ... shall not permit abandonment.

16 U.S.C. § 1247(d). While § 1248(c) states:

Abandoned railroad grants; retention of rights: Com-

mencing upon October 4, 1988, any and all right, title,

(Continued on following page)

App. 29

section at issu. the instant case. This is significant

because under xy 1247(d) no reversion or abandon-

ment ever takes place prior to ROW being retained

and employed as a trail. See Preseault, 494 U.S. at 7.

Unlike § 1247(d), § 1248(c) pursuant to § 912 requires

a judicial declaration of abandonment as a prerequi-

site to the United States’ retention of its § 912 ROW

reversionary interest. This difference seems to high-

light the inapplicability of the reasoning in Preseault

and subsequently Hash to the instant case.

CONCLUSION ON RAILROAD

RIGHT-OF-WAY REVERSION

For the reasoning enumerated above, the Court

concludes that the Government has met its burden in

proving that it retains a reversionary interest in the

Fox Park railroad ROW pursuant to 43 U.S.C. § 912,

16 U.S.C. § 1248(c), and previous decisions of the

Tenth Circuit. However, this Court is aware that

there is a split among the circuit courts. As the Trust

points out, the Federal Circuit and the Federal Court

interest, and estate of the United States in all rights-

of-way of the type described in section 912 of Title 43,

shall remain in the United States upon the abandon-

ment or forfeiture of such rights-of-way, or portions

thereof, except to the extent that any such right-of-

way, or portion thereof, is embraced within a public

highway no later than one year after a determination

of abandonment or forfeiture, as provided under such

section.

16 U.S.C. § 1248(c).

App. 30

of Claims, under Hash and Beres held that the con-

version from a railroad ROW to public trail as man-

dated under 16 U.S.C. § 1248(c) constituted a taking.

The Trust’s argument relies predominantly on this

line of cases as support for its argument. However,

these decisions are not consistent with the prevailing

authority in this circuit. Moreover, the Court finds

that Preseault, and subsequently Hash, are distin-

guishable from the instznt case. In light of the con-

trolling Tenth Circuit case law, the Government’s

Motion for Summary Judgment is GRANTED and

title to the railroad ROW is quieted in the Govern-

ment.

On a final note, should the Trust decide to pursue

a takings claim, under the Tucker Act, 28 U.S.C.

§ 149l(a\(1), the Federal Claims Court would have

exclusive jurisdiction provided that the compensation

sought is greater than $10,000.00.’ With this in mind,

any takings issues brought before this Court would be

dismissed for want of subject matter jurisdiction. See

28 U.S.C. § 1491(a)(1); Preseault, 494 U.S. at 11-14.

" 28 U.S.C. § 1346. The Little Tucker Act provides concur-

rent jurisdiction to the Federal District Courts for claims of

$10,000.00 or less. Id.

App. 31

APPLICABLE FACTS AND PARTIES’ ARGUMENTS

ON FOREST SERVICE ROAD COUNTERCLAIM

FACTUAL BACKGROUND

As stated supra, the predecessors of the Trust

were granted “land with all the rights, privileges,

immunities, and appurtenances, of whatsoever na-

ture, thereunto belonging, unto said claimants

forever.” Prior to October 21, 1996, Marvin M.

Brandt contacted the Laramie Ranger District of the

Medicine Bow-Routt National Forest (“MBRNF”) in

* Patent No. 49-76-0031. The patent also contains the fol-

lowing excerpted provisions:

EXCEPTING AND RESERVING TO THE UNITED

STATES from the land granted a ROW thereon for

ditches or canals constructed by the authority of the

United States; and

RESERVING TO the United States, and its assigns, a

ROW for the existing Platte Access Road No. 512 over

and across Tract No. 37 .. approximately 420 feet [in

length and] with a ROW width 10 feet to the left of

the centerline and 20 feet to the right of the center-

line.

Provided, that if for a period of five years, the United

States, or its assigns, shall cease to use the above

roads, or any segment thereof, for the purposes re-

served, or if at any time the Regional Forester deter-

mines that the roads, or any segment thereof, is no

longer needed for the purposes reserved, the easement

traversed thereby shall terminate. In the event of

such nonuse or such determination by the Regional

Forester, the Regional Forester shall furnish to the

patentees or, their heirs or assigns, statement in re-

cordable form evidencing termination.

Id.

App. 32

Albany County, Wyoming, and requested that Forest

Service Road (“FSR”) 512 be closed through Fox Park,

Wyoming for safety reasons.

On October 2, 1996, the Laramie Ranger District

of the MBRNF published a Decision Memorandum

closing FSR 512 from its junction with FSR 517

through Fox Park, Wyoming. Specifically, the Deci-

sion Memorandum provides that the Forest Service is

“closing and obliterating roughly 0.2 miles of FSR 512

from the junction of FSR 512 and FSR 517 to the Fox

Park Resort.” Subsequently, the Forest Service closed

FSR 512 and opened Access Road 512-C in its place.

Access Road 512-C runs west of Fox Park and joins

with the remaining unclosed portion of FSR 512 to

the north of the Trust’s property. Since at least Octo-

ber 21, 1996, the 0.2 mile portion of FSR 512 has

been gated and used as a private road. The Forest

Service employees installed barricades preventing

access to FSR 512 from FSR 517. Additionally, the

Forest Service employees removed and graded the

paved road surface and planted native grasses over

the 0.2 miles of FSR 512 that crosses the Trust’s

property on November 1, 1996.

Each party has filed numerous briefs in support/

opposition to the other party’s motion for summary

* See Exhibit 2. The Decision Memorandum also provides:

“The Forest Service currently has an easement allowing access

across the road. By implementing this proposal, the Forest

Service would relinquish the easement and access would be

provided on National Forest Service lands.” Jd.

App. 33

judgment. Rather than go through each parties’

arguments and counterarguments in_ serve-volley

manner the Court has reorganized their arguments

for the sake of clarity and brevity.

The parties rely on varying interpretations of the

language in the patent which granted the Trust its

property subject to the road easement. This disparity

revolves around the express conditions for termina-

tion of the easement in the patent and the argument

of whether these conditions have been triggered/

satisfied. The patent reads in relevant part:

Provided, that if for a period of five years,

the United States, or its assigns, shall cease

to use the above roads, or any segment

thereof, for the purposes reserved, or if at

any time the regional Forester determines

that the roads, or any segment thereof, is no

longer needed for the purposes reserved, the

easement traversed thereby shall terminate.

In the event of such nonuse or such determi-

nation by the Regional Forester, the Regional

Forester shall furnish to the patentees or,

their heirs or assigns, a statement in record-

able form evidencing termination.

Def.’s Statement of Undisputed Fact at Ex. 1.

Both parties agree that the patent states two condi-

tions for termination. These conditions are (1) non-

use of the road by the United States for a five-year

period or (2) a determination by the Regional Forester

that the road or a segment of it is no longer needed

for the purposes reserved.

App. 34

THE TRUST’S ARGUMENTS

CONDITION NUMBER L:

The Trust contends that the first termination

condition has been triggered and as a result the

easement has terminated. The Trust claims that the

Forest Service has not used FSR 512 since at least

1996 when it took steps to obliterate the 0.2 mile

segment. Further, according to the Trust, upon re-

moving the portion of FSR 512, the Forest Service

instructed Marvin Brandt to install a gate at the

south end of the road. At their behest, Brandt in-

stalled a gate and posted “No Trespassing” signage.

He also enclosed the Trust’s property with a “Buck-

and-Pole” fence. In addition to claiming he acted upon

the Forest Service’s request, Brandt has also stated

that to “the best of his knowledge, the Forest Service

has not used that portion of [FSR] 512 that it closed

through Fox Park, Wyoming.” Decl. of Marvin Brandt

(Ex. 3) at ¢ 17. The Trust also claims that the Forest

Service has performed no maintenance on the road

since 1996.

In light of the instructions Brandt received from

the Forest Service combined with removal of the 0.2

mile segment of FSR 512 and the claim that Brandt

has no knowledge of the presence of the Forest Ser-

vice on the land since the time of the Decision Memo-

randum, the Trust argues that the United States

has not used the easement in at least the required

five-year period. Thus, the Trust claims the second

App. 35

condition of the patent has been triggered and the

easement has terminated.

In addition to the initial claim, the Trust argues

that the words “any segment thereof,” as contained in

the patent indicate that when the Forest Service

obliterated the 0.2 mile segment of FSR 512 it trig-

gered the non-use condition for both FSR 512 and

FSR 517." The Trust asserts that if the Court should

find that the easement for FSR 512 has terminated,

based on the language of the patent, the easement for

FSR 517 also must necessarily terminate. However,

this contention was not included in the Trust’s initial

counterclaim.

CONDITION NUMBER 2:

On the issue of whether the second condition of

the patent has been met, the Trust contends that the

Decision Memorandum published by the District

Ranger triggered the second condition in the patent

and terminated the easement. The Trust relies on the

language in the Decision Memorandum which ex-

pressly relinquished the easement. The memorandum

stated: “The Laramie Ranger District .. . is proposing

to re-route the transportation system in the vicinity

"’ Def.’s Statement of Undisputed Fact at Ex. 1. The patent

states in relevant part that “if for a period of five years, the

United Staves ... shall cease to use the above roads, or any

segment thereof... the easement traversed thereby shall termi-

nate.” Id.

App. 36

of Fox Park.” Def.’s Statement of Undisputed Fact at

Ex. 1. The memorandum also states: “The proposal

includes closing and obliterating roughly 0.2 miles of

FSR 512 from the junction of FSR 512 and FSR 517

to the Fox Park Resort.” Jd. “The purpose of the

project is to reduce traffic concerns next to the Fox

Park Resort ... [and] {t]he proposed reroute would

alleviate these problems.” Jd. “By implementing this

proposal, the Forest Service would relinquish the

easement and access would be provided on National

Forest System lands.” Jd.

Additionally, the Trust argues the growth of the

Forest Service since 1976 (the year the patent was

issued) has required a delegation of authority from

the Regional Forester to lower levels of authority. In

light of this growth, the Trust argues the Decision

Memorandum issued by the District Ranger and later

implemented by the Forest Supervisor is within the

scope of authority for these individuals." Being

within the scope of authority for these officials, their

actions trigger the second condition of the patent.

See http://www.fs.fed.us/im/directives/fsh/7709.59/20. 1-23.

23.txt. The relevant part of the handbook states:

The Chief, Regional Foresters, Experiment Station

Directors, the Administrator of the Lake Tahoe Basin

Management Unit, and Forest Supervisors are au-

thorized to issue orders closing or restricting the use

of any Forest development road (36 CFR 261.50). See

also FSM 1013, which covers policy and responsibili-

ties for issuance of such orders.

Id.

App. 37

Thus, the Trust argues that the Decision Memoran-

dum satisfies the patent’s second termination condi-

tion and that the easement for FSR 512 (and

apparently FSR 517) has been terminated.

WYOMING’S ABANDONMENT LAW APPLIES TO THE

INSTANT CASE:

The Trust also argues that federal statutory law

is inapplicable. It claims the Federal Property and

Administrative Service Act of 1949, as triggered by

the Government's reliance on United States v. 434.00

Acres, 792 F.2d at 1009-10, is inapplicable because

the purpose of the act is inconsistent with the instant

case. Specifically, the Trust points to the stated pur-

pose of the act as “disposing of surplus property.” 40

U.S.C. § 101. Under the act, property is defined as

“any interest in property except |] land reserved or

dedicated for national forest or national park pur-

poses.” 40 U.S.C. § 102(A)ii). The Trust argues that

since the land at issue was previously reserved for

national forest purposes the Federal Property and

Administrative Services Act does not apply. Further,

the Trust argues that since no federal statute makes

state law controlling in the instant action, federal

common law should govern. However, since there has

been little federal common law developed under these

facts, Wyoming’s law should prove instructive. Sce

United States v. Standard Oil Co. of Cal., 332 U.S.

301, 309-10 (1947).

App. 38

Should this Court hold that neither condition has

been satisfied, the Trust asserts that Wyoming law

requires this Court to find that the easement has

been abandoned. See Mueller v. Hoblyn, 887 P.2d 500

(Wyo. 1994). The Trust offers Mueller for the rule that

abandonment of an easement requires intentional

relinquishment indicated by conduct which discloses

intent to surrender the right to use the land. /d. The

Trust offers another Wyoming decision for the propo-

sition that abandonment is a question of intent and

conduct. See Seven Lakes Development v. Maxson, 144

P.3d 1239, 1248 (Wyo. 2006) (holding that the ques-

tion of abandonment is one of fact, depending on

intention and conduct). Under Mueller, Wyoming law

states that “[elasements may be terminated by aban-

donment.” Mueller, 887 P.2d at 505. “Abandonment of

easements requires an intentional relinquishment

indicated by conduct which discloses the intention to

surrender the right to use the land authorized by the

easement.” Jd. The Trust argues that by its actions,

the United States clearly indicated its intention to

abandon the 0.2 mile segment of road. Further, the

Trust argues this Court should adopt the standard set

forth by the Supreme Court of Wyoming in Mueller

and quiet title to FSR 512 through Fox Park in favor

of the Trust.

Applying these rules to the instant case, the

Trust claims that the Decision Memorandum is

indicative of the Forest Service’s intention to abandon

the easement. Further, obliterating the 0.2 mile

segment of FSR 512 and the installation of gates at

App. 39

the behest of the Forest Service is conduct required to

effectuate the abandonment of the easement. The

Trust claims a simple syllogism: (1) if the Govern-

ment has intent to abandon and does abandon the

easement then the easement is terminated; (2) the

United States expressed its intent to abandon and it

did abandon the road easement; (3) therefore, the

easement has been terminated by abandonment.

ESTOPPEL SHOULD BAR THE GOVERNMENT:

The Trust argues the Government should be

estopped from asserting any claim to the FSR 512

against the Trust because the Trust relied on the

Decision Memorandum and the subsequent actions of

the Forest Service officials. The Trust cites a United

States Supreme Court decision for the proposition

that estoppel may be asserted against the United

States. Heckler v. Cmty. Health Servs. of Crawford

Cty., Inc., 467 U.S. 51 (1984). The Trust points to this

language of the United States Supreme Court:

Estoppel is an equitable doctrine invoked to

avoid injustice in particular cases. While a

hallmark of the doctrine is its flexible appli-

cation, certain principles are tolerably clear

... (b) to regain property or its value that

the other acquired by the act, if the other in

reliance upon the misrepresentation and be-

fore discovery of the truth has so changed his

position that it would be unjust to deprive

him of that which he thus acquired .. . thus,

the party claiming the estoppel must have

App. 40

relied on its adversary’s conduct in such a

manner as to change his position for the

worse.

Id. Applying this to the instant case, the Trust

argues its estoppel claim is proven against the Gov-

ernment. For example, when the Forest Service

requested that Brandt instal] locking gates at the

south end of FSR 512, he obliged at his own expense.

Also, once the Decision Memorandum was published,

Brandt enclosed the entirety of the property in a

“Buck and Pole” fence to keep out wandering live-

stock, again at his own expense. The Trust contends

that these facts prove that it relied upon the actions

of the Forest Service and to deny quieting title in

favor of the Trust would be an injustice. Thus, estop-

pel should bar the Government’s claim of a continued

ownership of FSR 512.

CONCLUSION OF THE TRUST:

The Trust argues the Government has failed to

provide a shred of evidence for its claim that the

segment of road at issue has been in continuous use.

Additionally, the Trust claims that the Decision

Memorandum by the District Ranger and subsequent

actions by the Forest Supervisor are equivalent to a

decision by the Regional Forester. The Trust also

argues that Mr. Brandt installed a fence around the

property, a gate at the south end, etc., which indicates

non-use. Further, should this Court find that the

patent’s conditions have not been triggered the Trust

argues that Wyoming law compels a finding the

App. 41

easement has been abandoned. Finally, if this Court

refuses to adopt state law in this action, then the

Government should be estopped from claiming any

right or title to FSR 512.

THE GOVERNMENT’S ARGUMENTS

The Government argues against the Trust’s

second counterclaim asserting that neither condition

set forth in the patent has been met. The Government

also contends that before the easement reserved to

the government can be extinguished at least one of

these conditions must be satisfied. In essence, the

Government argues “if neither condition has occurred

the easement for the road through Fox Park is still

extant.” The Government rebuts the Trusts argu-

ments that state law should apply. Similarly, the

Government asserts the Trust has failed to meet its

burden to prove an estoppel claim against the Gov-

ernment.

CONDITION NUMBER lL:

As to the first condition, non-use by the United

States for five years, the Government contends that

factual evidence suggests that the non-use condition

has not occurred. The Government presents the

affidavits of Jerry Schmidt, Pete Winters, and Curtiss

Orde as proof of the continuous use of FSR 512 and to

refute the testimony of Brandt that “to the best of his

knowledge the Forest Service has not used” FSR 512.

App. 42

Jerry Schmidt states that as Forest Supervisor

he issued the travel order closing FSR 512 to public

traffic. However, according to Schmidt, this order was

not intended to prohibit federal personnel from using

the road. Rather, the order was solely intended to

exclude public access to FSR 512. Furthermore,

Schmidt states that the Forest Service never aban-

doned the road. The Government argues that had the

road been abandoned, the Forest Service would have

no authority to close the road, i.e., you cannot close a

road that you do not own.

Pete Winters, a long time Forest Service em-

ployee, states that he gained access to FSR 512

through the unlocked gate. He also states that in the

last decade he has used FSR 512 to inspect the condi-

tion of the easements for Forest Service use and for

encroachments. Finally, Curtiss Orde, another long

term Forest Service employee, states that he knew of

the planned re-route of FSR 512. He also claims that

he has used FSR 512 for a number of reasons over the

past ten years including law enforcement and live-

stock retrieval.

In essence, the Government claims that the

testimony of these individuals show the intention and

actions of the Forest Service are consistent with the

retention of the easement for FSR 512. Moreover, the

Government contends these individuals prove that

the Forest Service has not ceased to use FSR 512 for

the required five-year period and the non-use condi-

tion has not been met.

App. 43

The Trust has argued that to abandon any “seg-

ment thereof” of FSR 512 abandons the entirety of

the easement. The Government claims that in pursu-

ing this argument the trust is advocating for a broad

interpretation of the language contained in the pa-

tent. It argues that federal grants are to be strictly,

not broadly, construed. Delaware Nation v. Common-

wealth of Pennsylvania, 446 F.3d 410, 418 (3d Cir.

2006) (holding that where the terms of the patent are

unambiguous there is no need to look beyond the four

corners of the document and any ambiguities in a

public land grant must be resolved strictly against

the grantee and in favor of the Government). Accord-

ingly, unless the Court finds the language of the

patent ambiguous, under the cases cited, the grant

will be narrowly construed.

Likewise, the Government claims there is no

ground for the Trust to assert a claim over FSR 517

at this juncture. The Trust has not attempted to

amend the complaint under Fed. R. Civ. P. 15. Fur-

ther, FSR 517 was not at issue in the 1996 Decision

Memorandum and has remained open for public

access. See Forman v. Davis, 371 U.S. 178, 182 (1962)

(holding that a district court may deny a motion to

amend for reasons such as “undue delay, bad faith or

dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, futility of

amendment.”); see also Smith v. Aztec Well Servicing

Co., 462 F.3d 1274, 1285 (10th Cir. 2006) (holding

App. 44

that denial to amend is appropriate solely on un-

timeliness where the party requesting the addition of

new claims has no adequate explanation for delay).

Under these Tenth Circuit decisions, the Government

contends that the Trust’s “failure to follow the proper

procedure is another reason to prohibit a new claim

at this juncture.” Reply Br. of Pl. at 11 n. 2. The

Government asks that any claim regarding FSR 517

should be barred.

The Government contends there is no material

factual dispute regarding the usage of FSR 512. It

asserts that in disputing the facts the Trust is merely

attempting to fabricate a genuine issue of material

fact to overcome the Government’s motion for sum-

mary judgment. As an example of alleged over-

statement, the Government points to the Trust’s

description that FSR 512 has been obliterated and is

now non-existent The Government contends that the

Forest Service only altered 0.1 mile of FSR 512

through Fox Park at the north end. A 1/10th mile

segment is 528 feet in length whereas the whole

segment of the road is 1825 feet. The altered section

of the road is less than one third of the entire road

and the remainder of the road remained useable and

used. Further, the Government offers the statements

of Casey Hull, another Forest Service Employee.

According to Hull, FSR 512 is “still visible on the

ground and if the wood barricades were removed, it

could be easily re-opened and used.” Hull Decl.

at 4475, 6. Finally, the Government offers photo-

graphs of the “obliterated” segment of FSR 512. The

App. 45

Government contends these photos “belie |the Trust’s]

exaggerated assertions about the road, e.g., that for

one to travel that segment would require an off-road

adventure through the existing tall grasses and over,

or around, the trees planted by the Forest Service.”

Reply Br. of Pl. at 21.

The Government rebuts .the declaration of

Marvin Brandt that he has no knowledge of the

Forest Service using the FSR 512 since at least 1996

by pointing to the suspiciousness of such a self-

interested statement. See, e.g., Argo v. Blue Cross

and Blue Shield of Kansas, 452 F.3d 1193, 1199-2001

(10th Cir. 2006) (citing Tavery v. United States, 32

F.3d 1423, 1427 n. 4 (10th Cir. 1994) for the proposi-

tion that statements of mere belief in an affidavit

must be disregarded by the Court under the personal

knowledge standard and that a self-serving affidavit

is insufficient to defeat summary judgment). For the

reasons aforementioned, the United States claims

that the Trust has failed to prove satisfaction of the

first condition and that no genuine issue of material

fact exists.

CONDITION NUMBER 2:

On the second termination condition, the Gov-

ernment argues that the Decision Memorandum

issued by the District Ranger simply closed FSR 512

to the public and that it did not end the Forest Ser-

vice’s use of the road. First, the Government claims

that the District Ranger did not have authority to

App. 46

relinquish the easement. The language of the patent

specifically states the only official with the authority

to terminate the easement was the Regional Forester.

See United States v. California, 332 U.S. 19 (1947)

(holding government officers who do not have author-

ity to dispose of property cannot do so). To bolster its

argument, the Government offers the proposition that

absent strict compliance with federal law there can be

no disposition of property. See U.S. v. 434.00 Acres,

792 F.2d 1006 (llth Cir. 1986). Additionally, the

Government contends if this Court finds the Decision

Memorandum was an attempt to dispose of FSR 512,

the Government cannot be bound by the Decision

Memorandum because neither the District Ranger

nor the Forest Supervisor had authority to dispose of

the road. Jd. Further, as the District Ranger is two

tiers lower than the Regional Forester, his Decision

Memorandum could only be a recommendation.

The Government also offers the affidavit of the

Regional Forester, Rick D. Cables, to show that

neither the District Ranger nor the Forest Supervisor

had the authority to terminate the easement for FSR

512. See Decl. of Rick D. Cables 44 3, 4. Cables states:

(T]here are no implied authorities within the

Forest Service to dispose of any Federal real

property interest.

Where rights-of-way are reserved in the

United States in federal land patents with

provisions for termination by the Regional

Forester when no longer needed for public

purposes, those termination authorities have

App. 47

not been delegated to Forest Supervisors or

District Rangers. A decision to terminate a

right-of-way is reserved to the regional office

so that broader policy implications and re-

gional needs may be considered above the

exigencies and conveniences of a local man-

agement situation.

Id. Applied to the instant case, the Government

asserts that the unambiguous language of the patent

reserves the right to terminate the easement to FSR

512 in the Regional Forester. Further, the Govern-

ment claims that no such determination was ever

made by the Regional! Forester. Id.

The Government acknowledges the Forest Ser-

vice handbook cited by the Trust which states that

the Forest Supervisor has the authority to close or

restrict the use of Forest Service roads.” However, the

Government contends that an action by the Forest

Supervisor to close a road does not equate to an

action by the Regional Forester to terminate a real

" http//www.fs.fed.us/im/directives/fsh/7709.59/20. 1-23.23.txt.

The relevant part of the handbook states:

The Chief, Regional Foresters, Experiment Station

Directors, the Administrator of the Lake Tahoe Basin

Management Unit, and Forest Supervisors are au-

thorized to issue orders closing or restricting the use

of any Forest development road (36 CFR 261.50). See

also FSM 1013, which covers policy and responsibili-

ties for issuance of such orders.

Id.

App. 48

property right reserved to the United States in a fed-

era! land patent.

WYOMING LAW Dors Not ADVANCE THE TRUST'S

POSITION:

The Government does not believe there is any

reason to look beyond the four corners of the patent

in deciding this case. According to the Government,

the decision cited by the Trust necessarily requires

this Court to find against the Trust. See Mueller v.

Hoblyn, 887 P.2d 500 (Wyo. 1994). In Mueller, Mueller

owned a single undivided tract of property that was

subject to a road easement granted prior to his acqui-

sition of the parcel. Jd. at 502-03. Subsequently, the

benefited parcel was subdivided and the divided par-

cels continued to use the road easement. Jd. However,

the road easement was improperly located. Jd. When

Hoblyn, the owner of the benefited land, approached

Mueller about relocating the road, Mueller claimed

that he had been using the easement for agricultural

purposes and that he had installed a well on the

easement. Id.

Mueller filed an action to quiet title to the ease-

ment on adverse possession grounds. /d. The district

court held that only the section of the easement

utilized for the well had been extinguished. /d.

Mueller appealed and the Wyoming Supreme Court

reversed the district court holding the adverse pos-

session period (ten years in Wyoming) is not tolled

until the holder of the easement seeks to use it. Jd. at

App. 49

504. Moreover, the Mueller court held the burden to

show abandonment of a road easement is high and

the evidence must be strong and convincing. See id.

at 508-10. The Court held that in the absence of

evidence of a permanent obstruction, such as a build-

ing, the drilling of the well and planting of crops were

not inconsistent with the rights held by the owners of

the dominant estates. Jd. Thus, there was no portion

of the easement that was terminated by adverse

possession and the easement remained extant. /d.

In the instant case as in Mueller, there were no

permanent structures blocking the route of the ease-

ment, only gate-like barriers. While the Trust relies

on Mueller for the proposition that abandonment

requires intent and conduct, the Government asserts

that as in Mueller, the Trust’s use of the easement has

not been inconsistent with the Government’s interest

in the road. Thus, the Government contends that

Mueller is inapplicable to the instant case. Moreover,

applying Mueller to the instant case necessitates a

ruling in favor of the Government because the ob-

structions to FSR 512 are not permanent.

THIS COURT SHOULD Not Apply EstoprEL AGAINST

THE GOVERNMENT:

The Government contends the instant case is in-

appropriate for estoppel. The Government states that

“equitable estoppel is an extraordinary remedy and

[the United States] may not be estopped on the same

terms as other litigants.” Reply Br. of Pl. at 22 (citing

App. 50

Board of Comm'rs v. Isaac, 18 F.3d 1492, 1498 (10th

Cir. 1994)). Further, the Government offers that it is

“far from clear that the Supreme Court would ever

allow an estoppel against the government under any

set circumstances.” See DePaolo v. United States ex

rel. IRS (In re DePaolo), 45 F.3d 373, 376 (10th Cir.

1995); See also FDIC v. Hulsey, 22 F.3d 1472, 1489

(10th Cir. 1994). The Government claims that in ad-

dition to the usual criteria of estoppel, applying

estoppel to the Government requires a showing of

affirmative misconduct or concealment of a material

fact. Sweeten v. U.S. Dep't of Agriculture, 684 F.2d

679, 682 (10th Cir. 1982): DePaolo, 45 F.3d at 377.

Moreover, affirmative misconduct is a high hurdle for

the asserting party to overcome. /d.

Relying on these cases, the Government contends

that there was no misconduct or concealment by the

Forest Service. There being no legal obligation to

close the road to public access, the Forest Service did

so at the Trust’s behest and at public expense. Fur-

ther, the installation of the gate and fence around the

Trust’s property were not in reliance on the Govern-

ment’s actions. Rather, the Trust was simply taking

full advantage of the opportunity it was given by the

rescindable closure of FSR 512. Moreover, the Gov-

ernment claims the only error by the Forest Service

in this matter was the District Ranger’s erroneous

belief that closing FSR 512 terminated the reserved

easement. While this error was a mistaken belief, it

was not misconduct or concealment of material facts.

“Mere negligence, delay, or failure to follow agency

App. 51

guidelines does not constitute affirmative miscon-

duct.” DePaolo, 45 F.3d at 377; Isaac, 18 F.3d at 1498.

Finally, the Government asserts the plain language

of the patent requires the Regional Forester to re-

cord the action in the county register. The Regional

Forester never made such a recording. Thus, under

the terms of the patent, there has never been a relin-

quishment of the easement through Fox Park.

CONCLUSION OF THE GOVERNMENT:

For the aforementioned reasons the Government

argues that there are no genuine issues of material

fact. Thus, summary judgment should be held in

favor of the Government and title to the road should

be quieted in the Government.

DISCUSSION ON THE COUNTERCLAIM

Several road issues are appropriate for summary

judgment. These are the estoppel argument, the issue

of whether state law should apply to the instant

action, and whether the “any segment thereof” clause

terminates the easements for FSR 512 and 517.

The Trust claims the Wyoming Supreme Court’s

decision in Mueller compels this Court to find the

Government has shown the necessary intent and

conduct to abandon the FSR 512 easement. However,

a close reading indicates the Supreme Court of Wyo-

ming required more than just a superficial relin-

quishment of an easement. See Mueller, 887 P.2d at

App. 52

507. Under Mueller, abandonment requires the con-

struction of permanent structures which obstruct the

easement for enough time to satisfy the adverse

possession period. Jd. Further, the Mueller Court held

the statutory period is not tolled until the easement

holder asserts their right to the easement. /d.

Applied to the instant case, the construction of

wooden barricades at one end of the FSR 512 and the

installation of the gate at the south end of the road

would not satisfy the permanent structure require-

ment of Mueller. Similarly, according to the affidavit

of Hull, the supposed obliteration of the 0.2 mile

segment of FSR 512 is easily remediated. Under

these facts, this Court fails to see how the Trust has

carried its burden. The Court agrees with the Gov-

ernment that to apply Mueller to this case necessarily

requires a holding in its favor.

While the Trust’s installation of the gate and the

buck and pole fence are indicative of reliance on the

actions of the Forest Service, the Court fails to see

how it matters whether FSR 512 is deemed closed or

whether the easement has terminated. Either way,

the Trust retains the benefit of the closure. By closing

the road to public access, the Forest Service has

effectuated the increased safety result sought by the

Trust in its initial letter to the District Ranger.

Therefore, the Court fails to see how the Trust’s

reliance was in any way detrimental to it.

Furthermore, the Government cites controlling

Tenth Circuit law that plainly states that the asserting

App. 53

party must prove the Government engaged in behav-

ior that qualifies as affirmative misconduct or con-

cealment of a material fact. See Sweeten v. U.S. Dep't

of Agriculture, 684 F.2d 679, 682 (10th Cir. 1982);

DePaolo, 45 F.3d at 377. The Government is correct in

its reliance on this case law. The District Ranger’s

error does not meet the affirmative misconduct stan-

dard. The facts do not show any indication that an

inference could be drawn to support an assertion of

concealment of material facts.

Only one issue remains for analysis: whether

either condition of the patent has been triggered

terminating the easement. The Government fairly

and succinctly stated these conditions in its brief as

(1) non-use of the road by the United States for a five-

year period or (2) a determination by the Regional

Forester that the road or a segment of it is no longer

needed for the purposes reserved. The Court will deal

with the conditions in reverse order.

The second condition states that the easement

terminates in the event the Regional Forester deter-

mines the road is no longer needed. The only evidence

the Trust offers in support of its argument that the

Decision Memorandum by the District Ranger satis-

fies this condition is a citation to an online Forest

Service handbook which states that t»e Forest Su-

pervisor and the District Ranger may close roads.

However, the handbook fails to mention the authority

of these officials to terminate easements. Absent the

express authority to terminate the easement, the

Trust has failed to meet its burden in proving the

App. 54

Decision Memorandum qualifies as a relinquishment

of the easement by the Regional Forester.

Conversely, the Government offers significant

support for its assertion that the only person with

authority to terminate the easement is the Regional

Forester. For example, the Government offers the

affidavit of the Rocky Mountain Regional Forester

Rick Cables to clarify that where a federal land grant

specifies the Regional Forester is the position with

the authority to terminate real property rights held

by the Government, there can be no delegation of that

authority. The Government also offers case law in

support of its position that only the Regional Forester

has such authority. See United States v. California,

332 U.S. 19 (1947) (holding government officers who

do not have authority to dispose of property cannot

do so). Given the weight of the arguments offered by

the Government, this Court agrees that the patent’s

second termination condition has not been met.

The first condition presents a more difficult

problem to resolve. In order to prevail on the first

condition the Trust must show that the Government

has not used FSR 512 for a period of five years.” In

support of its position the Trust offers the testimony

of the trustee, Marvin Brandt, for the assertion that

“to the best of his knowledge the Forest Service has

not used” FSR 512. In response the Government sub-

mits the affidavits of several Forest Service employees

’ See supra note 8.

App. 55

who describe their use of FSR 512 on multiple occa-

sions.

If we rely on the testimony of Brandt and the

Forest Service employees alone, it seems that there is

a genuine issue of material fact making summary

judgment inappropriate on the second counterclaim of

the Trust. The lack of knowledge of Trustee Brandt

fails to contradict the Forest Service affidavits of con-

tinued use of the closed sections of the road. However,

as indicated supra, the Government offers Tenth

Circuit case law, the gist of which is that a statement

made by a self-interested party is insufficient to over-

come a motion for summary judgment. See, e.g., Argo

v. Blue Cross and Blue Shield of Kansas, 452 F.3d

1193, 1199-1201 (10th Cir. 2006) (holding that state-

ments of mere belief in an affidavit must be disre-

garded by the Court under the personal knowledge

standard and that a self-serving affidavit is insuffi-

cient to defeat summary judgment). Applied to the

instant case, the statements of Marvin Brandt are

clearly self-serving. When considered against the affi-

davits of the employees the conclusion that the Forest

Service has not used the road easement fails.

CONCLUSION ON FSR 512

The Trust has failed to present a genuine issue of

material fact on the second condition. However, the

Trust has attempted to present an issue of material

fact on the first (non-use) condition of the patent with

Brandt’s belief that the Government has not used

App. 56

FSR 512 since 1996. In consideration of this state-

ment alone, neither the Government nor the Trust

has met its burden for summary judgment. However,

since the issue of fact arises from the self-serving

statement regarding Brandt’s belief, under Tenth

Circuit case law, this statement must be disregarded

at the summary judgment stage and the Government

must prevail on its motion. Argo, 452 F.3d at 1200

(citing Tavery, 32 F.3d at 1427 n. 4 (10th Cir. 1994)).

Accordingly, under the Tenth Circuit’s decision in

Argo, it is therefore ORDERED that the Govern-

ment’s motion for summary judgment shall be, and is,

GRANTED on the FSR 512 counterclaim.

Dated this 8th day of April, 2008.

/s/ Alan B. Johnson

ALAN B. JOHNSON

UNITED STATES

DISTRICT JUDGE

App. 57

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

UNITED STATES

OF AMERICA,

ree No. 06-CV-0184J

™ and

WYOMING AND Consolidated Case

COLORADO RAILROAD seiiiaintiidae

COMPANY, INC.., et al.

)

Defendants.

JUDGMENT IN FAVOR OF THE UNITED

STATES ON ITS CLAIMS AGAINST MARVIN

M. BRANDT REVOCABLE TRUST AND

MARVIN M. BRANDT, TRUSTEE AND ON THE

FIRST AND SECOND COUNTERCLAIMS OF

MARVIN M. BRANDT REVOCABLE TRUST

AND MARVIN M. BRANDT, TRUSTEE

(Filed Mar. 2, 2009)

In accordance with the Court’s Memorandum

Opinion and Order entered on April 8, 2008, it is

hereby ORDERED, ADJUDGED AND DECREED AS

FOLLOWS:

1. That on or before January 15, 2004, defen-

dant Wyoming and Colorado Railroad Company, Inc.

(““WYCO”), abandoned its railroad right-of-way, being

the same right-of-way granted under the General

Railroad Right-of-Way Act of 1875 to the Laramie,

App. 58

Hahn's Peak and Pacific Railroad Company, docu-

mented by the “Proof of Construction and Relin-

quishment of certain Grants accepted” certificate as

per Bureau of Land Management File No. WYC04128

and as shown on the Second Amended Definite Loca-

tion Plat of February 4, 1915 (hereinafter “the rail-

road right-of-way”), traversing the property owned by

the Marvin M. Brandt Revocable Trust (“the Trust”)

and Marvin M. Brandt, Trustee (“Brandt”) (the same

land conveyed to Melvin M. Brandt and Lula M.

Brandt by Patent Number 49-76-0031 dated Febru-

ary 18, 1976).

2. That WYCO has not conveyed any portion of

the railroad right-of-way, where it traverses the

above-described property of the Trust and Brandt, to

a state, county, or municipality.

3. That the Court hereby declares and decrees

that the railroad right-of-way, where it traverses the

above-described property of the Trust and Brandt,

has been abandoned by WYCO for all purposes in-

cluding the National Trails System Improvements Act

of 1988, 16 U.S.C. §1248(c), and the Abandoned

Railroad Right-of-Way Act of 1922 (43 U.S.C. § 912).

4. That the United States retained a reversion-

ary interest in the railroad right-of-way referenced in

paragraph lL.

5. That as a result of the abandonment by

WYCO, title to the railroad right-of-way is hereby

vested and quieted in the United States, and the

App. 59

United States is entitled to the quiet and peaceful use

and possession of the railroad right-of-way.

6. That the interest hereby quieted and vested

in the United States includes the right to construct

and operate a recreational trail on the railroad right-

of-way.

7. That title to the right-of-way for Forest

Service Road 512, called Platte Access Road No. 512,

which was reserved in Patent Number 49-76-0031,

traversing the property owned by the Trust and

Brandt, and the only road which is the subject of the

Trust and Brandt’s Second Counterclaim, is hereby

quieted in the United States, and the United States is

entitled to the quiet and peaceful use and possession

of the right-of-way for Forest Service Road 512 for

any and all National Forest and public purposes.

8. That fee title to the above-described property

of the Trust and Brandt remains with the Trust and

Brandt, subject to the rights of the United States in

both the railroad mght-of-way and the right-of-way

for Forest Service Road 512 as described above.

DATED this 2d day of March, 2008.

/s/ Alan B. Johnson .

United States District Judge

App. 60

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

UNITED STATES

OF AMERICA,

Plainuff, No. 06-CV-0184J

y and

COLORADO RAILROAD No. 06-CV-171J

COMPANY, INC., et al.

)

WYOMING AND : Consolidated Case

)

Defendants. )

JUDGMENT AND DECREE ON CLAIMS

OF THE UNITED STATES AGAINST THE

WYOMING AND COLORADO RAILROAD

COMPANY, INC., DECLARING ABANDONMENT

OF THE RAILROAD RIGHT-OF-WAY

(Filed Mar. 2, 2009)

Upon the motion of the United States for entry

of Judgment on its claims against the Wyoming and

Colorado Railroad Company, Inc. (WYCO), and in ac-

cordance with the stipulation between the United

States and WYCO, which was filed in this action on

November 28, 2006, it is hereby ORDERED, AD-

JUDGED AND DECREED AS FOLLOWS:

1. That defendant Wyoming and Colorado Rail-

road Company, Inc. (*“WYCQO”), on or before December

31, 2003, abandoned its right-of-way, being the same

right-of-way granted under the General Railroad

Right-of-Way Act of 1875 to the Laramie, Hahn's

App. 61

Peak and Pacific Railroad Company, documented by

the “Proof of Construction and Relinquishment of

certain Grants accepted” certificate as per Bureau of

Land Management File No. WYC04128 and as shown

on the Second Amended Definite Location Plat of Feb-

ruary 4, 1915 (hereinafter “the right-of-way”).

2. That WYCO did not convey any portion of the

nght-of-way to a state, county, or municipality within

one year of such abandonment.

3. That WYCO has abandoned all rights, title

and interests it may have had in the right-of-way, in

accordance with 43 U.S.C. § 912.

DATED this 2d day of danueary, March 2009.

/s/)_ Alan B. Johnson oan

United States District Judge

App. 62

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

UNITED STATES |

OF AMERICA,

Plaintiff,

VS. | Case No. 06-CV-184-J &

WYOMING AND 06-CV-171-J

COLORADO RAILROAD

COMPANY, INC., et al.,

Defendants.

ORDER GRANTING PLAINTIFF’S

MOTION TO DISMISS THE THIRD

COUNTERCLAIM OF MARVIN M. BRANDT

REVOCABLE TRUST AND MARVIN M.

BRANDT WITHOUT PREJUDICE

AND

ORDER DENYING DEFENDANT MARVIN M.

BRANDT REVOCABLE TRUST’S, MARVIN M.

BRANDT, TRUSTEE, MOTION TO TRANSFER

THE THIRD COUNTERCLAIM TO THE

UNITED STATES COURT OF FEDERAL CLAIMS

(Filed Mar. 4, 2009)

This matter comes before the Court on Defendant

Marvin M. Brandt Revocable Trust’s, Marvin M. Brandt,

Trustee, Motion to Transfer the Third Counterclaim

App. 63

to the Un

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