Federal Attorneys: The Nation’s Worst Losers?

William Perry Pendley | President, Mountain States Legal Foundation

The Super Bowl, the presidential primaries, and the NCAA “March Madness” basketball tournament exposed a number of sore losers, whose unexpected thrashing revealed them at their worst.  Their defeats were especially hard to take because they thought they were going to win, everyone was telling them so, and their foes were lightly regarded. These sore losers pale in comparison, however, to federal attorneys in Cheyenne, Wyoming. How they came to suffer unexpected defeat at the hands of a Wyoming man is worth telling.

Since 1910, the Laramie, Hahn’s Peak & Pacific Railway Company ran a line from Laramie, through tiny Fox Park, and south to the Wyoming-Colorado border along a 200-foot-wide, 66 miles long right-of-way. The railroad transported lumber from Melvin Brandt’s mill to Laramie and beyond. In 1976, Melvin Brandt traded 200 acres he owned on Sheep Mountain plus 40 acres near Fox Park to the U.S. Forest Service for 83 acres in the middle of Fox Park occupied by the mill, houses and cabins, church, pool hall, hotel, general store, school and saloon Melvin Brandt and his wife Lula — who came to Wyoming penniless in 1936 — built.

Melvin and Lula’s son Marvin, raised amidst the woods, the mill, and the hard work, went to college, but soon returned. Unfortunately, after the 1980 recession, times were hard and changing. The Forest Service was no longer interested in letting Marvin Brandt harvest the timber; instead, it left it to the pine beetle. In 1991, a young woman spoke to locals at the Hungry Woodsmen café of her vision that, after the railroad went away, a high-altitude bicycle trail could be built in its place all to be paid for by local businesses; Marvin Brandt proclaimed he was that local business and was nearly finished. That year, he sold the mill and its equipment for pennies on the dollar. Two years later, the railroad ended service on the line and in 1999 and 2000 removed the track and ties; its right-of-way reverted to the underlying landowners, including Marvin Brandt.

In 2003 Marvin Brandt learned the Forest Service planned to build the trail. Despite the 9,000 foot elevation, snow cover from October to mid-June, and the lodgepole pine’s attempt to reclaim the path, the agency audaciously predicted 120,000 bikers annually! The biggest impediment, however, was Marvin Brandt owned most of the land and he told the Forest Service so. Its lawyers said they did not care. He had the land; they wanted it; and they were going to get it even if they had to go to the Supreme Court of the United States.

In 2014, after eight years and appearances before four other federal courts, they got to the Supreme Court, but it did not go as expected. In an 8-1 ruling, Marvin Brandt won! Wrote the Chief Justice, the guiding principles “are well settled as a matter of property law[,]” and, “nothing in the text of the [law] supports [the government’s] improbable (and self-serving) reading.” At oral arguments, Justice Alito attacked the Solicitor General before he finished his first sentence. Justice Breyer said “any attorney worth his salt” knows better than the position urged by the United States; Justice Kagan called that argument “a mystery.”

Marvin Brandt returned to Wyoming federal district court where the judge who got it wrong in 2009 ordered his land returned. Then Marvin Brandt sought an Equal Access to Justice Act (EAJA) award for attorneys’ fees and expenses, to which he is entitled if the legal position taken by the United States was not “substantially justified.” Astonishingly, federal lawyers argued they were justified, despite that, for seven years, they withheld from judges hearing the case the dispositive ruling on which it turned: the government’s victory in a related case at the Supreme Court in 1942! Their conduct may or may not be unethical, but whether it was “justified” is now before the Wyoming federal judge.

William Perry Pendley, an attorney, is president of Mountain States Legal Foundation in Denver and author of Sagebrush Rebel:  Reagan’s Battle with Environmental Extremists and Why It Matters Today (Regnery, 2013).

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