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TheLitigatorthousands at risk in federal land grab

supreme court takes wyoming case

Autumn 2013The Litigatoris published quarterly byMountain States Legal Foundation, a nonprofit, public-interest legal foundationdedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.

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Executive Offices:2596 South Lewis WayLakewood, Colorado 80227303-292-2021Fax 303-292-1980www.mountainstateslegal.org

The Supreme Court of the United States, in its first order of the October 2013 Term granted the petition of a Wyoming man who seeks to overturn rulings by a Wyoming federal district court and the U.S. Court of Appeals for the Tenth Circuit in favor of the U.S. Forest Service in a dispute over whether his land may be used as a federal trail. A ruling in the case, which will not come until 2014 after full briefing and oral argument, will affect thousands of miles of current or former railroad rights-of-way and thousands of landowners. The federal government, notwithstanding a federal law and a 1942 Supreme Court ruling, asserts that it may seize the rights-of-way when they are abandoned by railroads.

Marvin Brandt of Fox Park, Wyo-ming owns 83 acres of land, a portion of which was burdened by a right-of-way for the Laramie, Hahn’s Peak, and Pacific Railroad Company from Laramie to the Colorado line. In 1996, the Wyo-ming and Colorado Railroad Company, as the railroad was then known, moved to abandon the rail line; by 2004, it had removed all the tracks and ties. By the operation of federal and state law, the right-of-way was extinguished and Mr. Brandt’s property became unencum-bered and available for his use.

In April 2005, the U.S. Forest Service announced plans to convert a claimed but non-existent right-of-way into a public, recreational trail. In July 2006, the United States sued Mr. Brandt in Wyoming federal district court to quiet title to the “trail” in its name. MSLF, on

Mr. Brandt’s behalf, filed a counterclaim to quiet title in favor of Mr. Brandt. In April 2009, the Wyoming federal district court quieted title to the former railroad right-of-way in favor of the United States. The district court also ruled that the United States could expand the scope of the railroad right-of-way to include a public, recreational trail.

MSLF appealed the district court’s ruling to the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado. Although oral arguments were held in May 2010, the three-judge panel did

not issue its short per curiam opinion until September 2012.

MSLF filed a petition for rehearing en banc because the panel’s ruling was in conflict with rulings by the Supreme Court of the United States and two other federal appeals courts. That petition was denied in December 2012. In March 2013, MSLF filed a petition for writ of certiorari on behalf of Mr. Brandt. MSLF’s petition was supported by strong briefs by Pacific Legal Foundation, the Own-ers’ Counsel of America, the Cato Institute, and the National Association of Reversionary Property Owners. After numerous extensions, the Solicitor General of the United States asked that the Court grant the petition.

In February 1904, pursuant to the General Railroad Right-of-Way Act of 1875, the Laramie, Hahns Peak and Pacific Railroad Company filed with

the U.S. Department of the Interior and, thus, in 1908, acquired a 200-foot-wide, 66-mile-long right-of-way from Laramie, Wyoming, to the Colorado State line, which operated until September 1995. The land along the railroad right-of-way was reserved from the public domain by presidential proclamation and became

part of the Medicine Bow National Forest. The pri-vate land areas of Albany, Fox Park, and Mountain Home along the right-of-way were acquired after creation of the railroad and are subject to it.

At Albany, private lots were platted over the right-of-way and the land conveyed subject to the railroad. Abandonment of the railroad right-of-way thus created a title conflict between these ownerships and the ef-fects of the 1988 Rails-to-Trails Act. Mr. Brandt’s land was patented to him in February 1976, as part of a land ex-change with the U.S. Forest Service.

TheLitigator Page Two

mslf finaliZes east coast energy win

double your mslf gift! tell the boss

web page pollVisitors to MSLF’s web site at www.mountainstateslegal.org responded

to the following question: “Federal officials raided a museum and seized 20 Indian artifacts with eagle feathers. They filed no charges but they kept the artifacts. Is that right?” One hundred percent (100%) said, “No: These artifacts pre-date federal law on the subject; federal lawyers must prove they may keep them.” Zero percent (0%) said, “Yes: These artifacts are contraband unless the museum can prove that it is lawfully in possession of them.”

Vote on the new question at MSLF’s web site today!Remember, the best way to keep abreast of MSLF’s precedent-setting, nation-

ally-significant litigation is to check MSLF’s highly acclaimed web site. MSLF’s web site is updated at least every week and often daily. In particular, check for updates on MSLF’s “Legal Cases” and “News Releases.”

Did you know that you might be able to double your gift for free? Thousands of companies match their employee’s charitable contributions. Matching gifts play a key role in help-ing MSLF fight its court battles. Please ask if your employer has a matching

gift program. Contact your human resources or personnel department to see if your company will match your gift to MSLF. Then, each time you mail your gift, please include a matching gift form from your employer. MSLF will do the rest!

pendley’s ViewIn the summer of 1981, two federal

agencies completed months of study of an application for permit to drill (APD) by an oil company that owned a lease in the Bridger-Teton National Forest southeast of Jackson, Wyoming in Teton County. They concluded the APD should be granted. When the recommendation reached Washington, Wyoming’s congressional delegation was briefed that Secretary Jim Watt would approve the APD. Meanwhile, environmental groups were gearing up for a major battle on the issue.

Future Wyoming Governor Mike Sullivan, a Democrat, learned the oppo-sition had gone beyond angry words. Death threats had been issued against Watt, threats that Sullivan thought serious enough to convey directly to his fraternity brother Watt. Then Watt heard from a unanimous and Repub-lican Wyoming delegation: deny the APD! In time, Watt had a meeting in the Oval Office; he feared he was about to let Reagan down. Reagan stiffened Watt’s backbone. “No,” Reagan de-clared and then uttered a paraphrase of remarks that would become famous in his Second Inaugural Address: “If not us, who? If not now, when?”

President Reagan consistently dem-onstrated rare courage in his efforts to permit Americans to discover energy on the nation’s “federal lands,” which he reminded, “the very term means it belongs, to us—to the people of America.” Reagan would be shocked to learn that a man issued a federal lease less than a year after that White House meeting with Watt has been un-able to drill for over 30 years. Is it any wonder that the miracle of hydraulic fracturing that has produced untold energy riches all across the country has been exclusively on State and private lands, and not on the third of the coun-try owned by the federal government? Fortunately, MSLF now represents the man’s company in fighting for his right to find energy!

The U.S. Court of Appeals for the Third Circuit in Philadelphia affirmed a September 2012 ruling by a Pennsylva-nia federal district court in favor of rural Pennsylvania energy operators repre-sented by MSLF. The three-judge panel’s ruling dismissing an appeal by three en-vironmental groups follows a similar ruling in September 2011, by another panel, which up-held a December 2009 ruling by the Pennsylvania fed-eral district court.

In June 2009, Minard Run Oil Company as well as the Pennsylvania Independent Oil and Gas Association sued the U.S. Forest Service for settling a lawsuit brought by the groups. In a December 2009 ruling, the district court barred the agency from implementing its settlement agreement, prohibited it from doing studies on the use of pri-vately owned oil, gas, and mineral rights

beneath the Allegheny National Forest (ANF), and lifted the moratorium on oil and gas drilling in the ANF. In 2012, the district court converted its 2009 prelimi-nary injunction into a final judgment.

The ANF, which covers 500,000 acres in Elk, Forest, McKean, and Warren Counties in northwestern Pennsylvania, comprises lands that were once privately owned and were pur-chased under the 1911 Weeks Act during the 1920s. Because the

United States bought only the surface estate, most of the mineral rights in the ANF are privately owned. Thus, there is no contractual basis for any federal government regulatory authority over outstanding oil, gas, and mineral (OGM) rights in the ANF.

The environmental groups filed peti-tions for rehearing and rehearing en banc.

TheLitigator

A Louisiana man issued an oil and gas lease in 1982, but denied the right to explore his property since the initial ap-proval of his application for permit (APD) to drill in 1985, filed a lawsuit, with MSLF as his attorney, demanding the right to use his property. Sidney Longwell of Baton Rouge, whose company Sole-nex, LLC owns the Reagan era lease, sued Secretary of the Interior Sally Jewell and other Interior Department and Department of Agri-culture officials in federal district court in the District of Columbia. Mr. Longwell charges that the United States has unlawfully withheld and unreasonably delayed the action necessary to let him exercise the rights granted him under the lease.

The June 1982 oil and gas lease was is-sued by the Bureau of Land Management (BLM) on 6,247 acres in the Lewis and

Clark National Forest in Glacier County, Montana. In 1983, Mr. Longwell assigned the lease to America Petrofina Company

of Texas, which later became Fina Oil and Chemical Com-pany. In October 1983, Fina submitted an APD near Hall Creek, south of U.S. High-way 2 to evaluate the natural gas part of that portion of the Overthrust Belt.

After extensive review pursuant to the National Environmental Policy Act (NEPA), amidst appeals and a ruling by the Interior Board of Land Appeals (IBLM), in

consultation with the U.S. Forest Service, the BLM approved the APD in 1985, 1987, 1991, and finally in 1993.

In June 1993, Secretary of the Interior Bruce Babbitt suspended activity on the lease awaiting congressional action. In 1996, he continued the suspension and, in 1998, he continued it indefinitely.

On behalf of its members across the country, MSLF urged the U.S. Court of Appeals for the Ninth Circuit to uphold the holding of an Arizona federal district court that a Navajo District Court has no jurisdiction over non-Indians in a civil lawsuit filed for al-legedly tortious conduct on an Arizona highway. MSLF, which had been urged to file a brief by the tribal court but whose arguments were rejected, urged the appeals court to uphold the federal district court’s ruling that the tribe lacks jurisdiction.

In August 2012, the federal district court ruled that the Navajo tribal court has no jurisdiction over the non-Indians sued in the case. MSLF, which has been involved for decades in state and federal courts with regard to the authority of tribal courts over non-Indians and American Indians from other tribes, relied on U.S. Supreme Court and Ninth Circuit Court of Appeals rulings in arguing that the

appellate court should uphold the lower court’s ruling.

In September 2004, an automobile/tour bus accident occurred within the exterior boundaries of the Navajo Nation

on U.S. Highway 160 near Kayenta, Arizona. One Navajo passenger was killed and the other pas-senger was injured. In December 2006, relatives and the survivor filed a lawsuit for allegedly tortious conduct, seeking compensatory and puni-tive damages, against the tour bus owners, opera-tors, driver, and insurance company in the District Court of the Navajo Nation

for the Kayenta District. Those sued were all non-Indians;

therefore, they filed a motion to dismiss the lawsuit in the Navajo District Court, alleging that the court lacked subject mat-ter jurisdiction. That was denied and the denial upheld in September 2010.

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tribes unable to try non-indians

last oil man fights to find energy blm v. federalismA scheme by the Bureau of Land

Management (BLM) to regulate hydraulic fracturing, which has been used for some six decades and is regulated currently in accordance with State law, drew strong opposition from MSLF. MSLF asserted that the rules were proposed to address a remote, speculative, and totally non-exis-tent harm, consisted of duplicative, vague, and unnecessarily burdensome rules that will impose administrative and financial burdens on the States, will impose outra-geous delays and obscene costs on the oil and gas industry and hence the American public, and are unconstitutional, illegal, and arbitrary and capricious.

MSLF informed the BLM that, al-though its is required to provide a factual basis for its policy decisions that has factual support in a record, the BLM provided no evidence of “unnecessary or undue degradation” that would trigger its ability to act under federal law. In fact, the BLM failed to find that hydraulic fractur-ing poses a threat to underground water supplies or the environment generally. Further, the BLM admits “[h]ydraulic fracturing is a common and accepted practice, and has been, in oil and gas pro-duction for decades,” concedes that any harm from hydraulic fracturing is highly speculative, says that its rule would only “potentially” reduce risks, and admits that it is unable to monetize the benefits from its rule because any risk of harm is “largely unknown.”

MSLF opposed other aspects of the revised rule as unnecessary, redundant, and unnecessarily costly, including water usage and reporting requirements, pre-operation requirements, cement evalua-tion logs, post-operation requirements, trade secret information, and so-called variances. In particular, MSLF faulted the failure of the BLM to comply with an ex-ecutive order on “Federalism” first issued by President Reagan, which requires an analysis of federal rules that interfere with the constitutional role of States. MSLF attacked the BLM’s “Economic Impact Analysis” as inadequate and in direct con-flict with economic studies by, among oth-ers, the Western Energy Alliance, which found cost to 13 States of $345 million and a per well cost of $100,000.

TheLitigator

ronald reagan, sagebrush rebel - his untold historySagebrush Rebel: Reagan’s Battle with

Environmental Extremists and Why It Mat-ters Today (Regnery 2013), by William Perry Pendley, tells what Reagan did, how those who followed diverted from his vision, and what America must do to restore its economy, its strength against its enemies, and its exceptionalism.

“[America’s] energy boom ... would soon be bursting out all over if Obama would just do the nation a little favor. Repeat some Reagan history. [E]xcuse me, President Barack Obama, but please visit this book.”

Jay AmbroseScripps Howard News Service

“[T]argets of the new environmen-tal religion will find lessons [includ-ing] how one principled man and his confidence in the power of American potential could flip the radical environ-mentalist narrative and make daily life better for all Americans.”

J. Christian Adams, Esq.Author, Injustice, Exposing the Racial Agenda of the Obama Justice Department

“[Pendley] understands the goal of environmental extremists: gain control of policy in order to force Americans to reduce their standard of living by shrinking the nation’s economy. [These] zealots have turned many [federal laws] into tools of social control.”

Peter HannafordReagan associate and biographer

“Sagebrush Rebel extols Reagan, exposes Clinton for his pandering to uncompromising environmentalists, and excoriates Obama. This is a must read.”

William TuckerAuthor, Terrestrial Energy

“ Reagan believed uniquely in America’s future and its young people; his policies on energy and the environ-ment ensured prosperity for decades.”

Ron Robinson, Young America’s Foundation and The Reagan Ranch

“Sagebrush Rebel is one of the most important, insightful, and inspirational books about Ronald Reagan’s domes-tic policies since An American Life by President Reagan himself. It is a ’must read’ for those interested in all that the President accomplished.”

Edwin Meese, IIIReagan’s Attorney General

“The story of Ronald Reagan’s policies on natural resources and the environment has never been told, or has been distorted by his political enemies. Sagebrush Rebel corrects the record for the first time, with relevant insights for our policy debates over resource man-agement today.”

Steven F. HaywardReagan biographer and author, The Age of Reagan: The Conservative Counterrevolution: 1980-1989

“Ronald Reagan—a life-long con-servationist and environmentalist—be-lieved people are part of the ecosystem. That was heresy to those who Reagan called ‘environmental extremists,’ so they lie about his record. The truth is in Sagebrush Rebel.”

Mark R. LevinRadio talk show host and author, The Liberty Amendments

“ The obsession of environmentalists is regulating private property, control-ling growth—both human and econom-ic—and trying to predict and alter the future. Sagebrush Rebel reveals Presi-dent Reagan would have none of that.”

Linda Chavez, syndicated columnist and Fox News contributor

“The progressive war on western civilization is never-ending. We musttake up Reagan’s fight to preserve the American way of life. SagebrushRebel shows us how. Buy it now!”

Michelle Malkin, syndicated columnist, best-selling author, and Fox News contributor

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Warriors for the West

sagebrush rebel is free with a $50.00 contribution to mslf; see the coupon on page 5. autographed copies are also available for $60.

if you liked reagan, you will love sagebrush rebel. it is the perfect gift! contact mslf for pricing of copies bought in large quantity.

keep reading! The Litigator, MSLF’s quarterly newsletter, is the indispensable tool for staying informed regarding the latest in MSLF’s precedent-setting, nationally-significant, public-interest litigation. The Litigator is mailed on the first of February, May, August, and November. Ensure that you keep receiving The Litigator by contributing $25 annually.

Prominently displayed at the Ronald Reagan Presidential Foundation & Library

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mountain states legal foundation (mslf) is a nonprofit, public-interest legal foundation, that is a 501(c)(3) organization,since its 1977 founding.

therefore, your generouscontributions to mslf are tax deductible!

mslf cannot rest; its role essential to remaining free In 2013, MSLF will have been going to court for 36 years, fighting to compel compliance with the commands of the Constitution and federal law to ensure that America remains a nation of laws. At no time during these nearly four decades has the need for MSLF to go to court on behalf of those who could not afford legal representation been less-ened. In fact, as the federal bureaucracy has grown and as federal laws have become more far-reaching and intrusive, MSLF’s caseload has increased dramati-cally. That is obvious from a review of the scores of MSLF cases.

your support is Vital If there is one lesson MSLF has learned over the past 36 years, it is that, regardless of which party occupies the White House or controls Congress, the threat to liberty remains and MSLF must be ready, willing, and able to go to court to defend freedom. As Thomas Jefferson once said, “Eternal vigilance is the price of liberty.” One of the prices that must be paid for MSLF to remain vigilant isthe price that tens of thousands of Amer-icans pay annually by making their tax-deductible contributions to MSLF and its aggressive litigation. The support of MSLF by tens of thousands of Americans committed to freedom could not be more important. Your support will ensure that MSLF remains IN THE COURTS FOR GOOD!

MSLF receives no government funds (except when it wins in court and the judge orders the federal government to pay attorneys’ fees and expenses).MSLF’s sole source of support is the tax-deductible contributions of those who support its aggressive litigation program.MSLF is a nonprofit, public-interest I.R.C. 501(c)(3) corporation, which makes the contributions it receives tax deductible.MSLF is committed to the vision of the Founding Fathers: individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.MSLF’s commitment to the Constitution ensures that America remains a nation of laws and not of men and that the rich liberty legacy of this nation continues.MSLF does only one thing: it goes to court in defense of the Constitution, strict adherence to the laws of the land, and those who cannot afford to hire legal counsel to protect their rights.Only YOU can ensure that MSLF may continue its vital work.

Federal, state, and local taxes take an ever-increasing share of one’shard-earned income.Gift giving decreases taxes while advancing charitable goals.Although many mechanisms for legally lowering taxes have been

eliminated, the opportunities for reducing taxes by charitable giving remain! Income Tax – A person may deduct up to 50 percent of his or her ad-justed gross income (AGI) for gifts of cash to a qualified charity; that limit is 30 percent for gifts of appreciated property. Itemized deductions made during 2013, including charitable deductions, are reduced for individuals earning $250,000 (married couples earning $300,000) or more. Please consult your tax adviser.Estate Tax – A person who dies in 2013 is entitled to an exclusion of up to $5,250,000; however, estates in excess of that amount may deduct charitable gifts, by will or trust. Because 2013 federal estate taxes over $5,250,000 range from 15 percent to 40 percent, for every charitable gift of $1,000, the estate saves up to $400 in federal taxes. Please consult your tax adviser. MSLF does not provide tax advice.

Contributions of stock can be made electronically to MSLF’s brokerageaccount DTC 0164. When transferring stock, indicate acct. #7080-3528, Charles Schwab & Co., 518 17th St., Suite 100; Denver, CO 80202.

(Adam J. Rehmer 303-260-5916; Fax: 303-260-5095). Please notify MSLF BEFORE making the transfer; there is no way to identify a stock donor without prior notification. Thank you!

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GIFT: $ _____________ o $1000 o $500 o $250 o $100 o $50 o $25o Check Payable to Mountain States Legal Foundation (MSLF)o Credit Card ___MC ___Visa ___Discover ___AmEx Credit Card # _________________________________________________________________ CVV# (3 digit code on back of card) ___________________ Exp. Date _______________ Signature _____________________________________________________________________NAME (Please print) _______________________________________________________________ADDRESS ________________________________________________________________________CITY ______________________________________ STATE ____________ ZIP _______________ PHONE __________________________________________________________________________EMAIL ___________________________________________________________________________o Yes, I want to help MSLF in its defense of constitutional liberties and the rule of law.o I made my contribution for $50, or more. Please send me Sagebrush Rebel.o I have ADDED $10 to my $50 gift; send me an autographed Sagebrush Rebel.o I/We put MSLF in my/our will; (print name) .

TheLitigator

An Idaho woman who is barred from carrying a functional firearm for self-defense whenever she visits federal recreational facilities filed a lawsuit to protect her Second Amendment rights. Elizabeth E. Morris, a resident of Nez Perce County, has a license to carry a concealed weapon, regularly carries a concealed weapon, and often recreates on lands managed by the U.S. Army Corps of Engi-neers. Because Corps of Engineers regulations ban functional firearms, even while camped in tents, Ms. Morris is subject to criminal prosecution if she seeks to exercise her Second Amendment rights. Alan C. Baker, a firearms instructor and resident of Idaho’s Latah County, is a co-plaintiff in the suit, which was filed in Idaho’s

federal district court. The Corps of Engineers did not respond to requests from MSLF seeking an exemption from its firearm ban for Ms. Morris and Mr. Baker. MSLF also filed a motion for a preliminary injunction barring the

agency from enforcing its fire-arm prohibition.

The Corps of Engi-neers operates public parks and recreational facilities at water resource development projects under the con-

trol of the Department of the Army and thus is the

nation’s largest provider of water-based outdoor recre-

ation. It administers 422 lake and river projects in 43 states, spanning 12 million acres, encompassing 55,000 miles of shoreline and 4,500 miles of trails, and including 90,000 campsites and 3,400

A Colorado federal district court ruled in favor of a Colorado man and a national gun rights group, both represented by MSLF, holding that a U.S. Postal Service regulation barring firearms in its parking lots violates their right to keep and bear arms under the Constitu-tion. The district court ruled, “openly carry-ing a firearm outside the home is a liberty protected by the Sec-ond Amendment [and the] parking lot adja-cent to [Avon’s Post Office Building] is not a sensitive place [such that] an absolute ban on firearms is substantially related to [Defendants’] important public safety objective.”

Tab Bonidy, who is licensed to carry a handgun and regularly carries a hand-gun for self-defense, drives several miles from his home, where mail delivery is not available, to Avon to collect his mail. On arrival in Avon, however, he is barred by federal regulation from carrying a firearm, or parking his vehicle if it contains a firearm, on Postal Service land. In July 2010, Mr. Bonidy asked that the regulation

be withdrawn; the Postal Service refused. Mr. Bonidy and the National Associa-tion for Gun Rights filed their lawsuit in October 2010.

In 2007, the Postal Service renewed its to-tal ban on firearms on Postal Service prop-erty, first promulgated in 1972: “Notwith-standing the provi-sions of any other law, rule or regulation, no person while on Postal property may carry firearms, other dangerous or deadly

weapons, or explosives, either openly or concealed, or store the same on Postal property, except for official purposes.”

This regulatory prohibition, which carries a fine, imprisonment for 30 days, or both, is broader than the federal statute, which prohibits private possession of firearms in federal facilities, except those firearms carried “incident to hunting or other lawful purposes.” 18 U.S.C. § 930(d)(3). This statutory exception does not ap-ply in federal court facilities, where a total ban is enforced. 18 U.S.C. § 930(e)(1).

The Postal Service’s total ban on fire-

idaho woman sues feds on second amendment rights

coloradoan defeats postal serVice oVer gun rights

battle oVer energyThe fight over the nation’s hottest

new shale play drew the strong support of MSLF as it entered a federal lawsuit on behalf of the California Independent Petroleum Association. MSLF urged the district court not to limit oil and gas activity in the Monterey-Santos field near Bakersfield in response to a lawsuit filed by two environmental groups.

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boat launch ramps. Waters under its control constitute 33 percent of all U.S. freshwater fishing.

Ms. Morris was issued an emergency license by the Nez Perce County Sheriff to carry a concealed handgun in 2012 due to threats and physical attacks against her by a former neighbor. She regularly carries a handgun for self-defense. She uses Corps-administered public lands near the Snake River in Lewiston, Idaho, to boat with friends, regularly walks the Corps-administered paths in the area with her dog and/or her family, and must travel across Corps-administered public lands to reach Hells Gate State Park.

Mr. Baker is a NRA-Certified Home Firearm Safety, Personal Protection In The Home, Rifle, Pistol, and Shotgun Instructor, among his other certifications. He regularly recreates on Corps-man-aged lands in Idaho.

Avon, Colorado Post Office

arms possession impairs the right to keep and bear arms as protected by the Second Amendment even when individuals are traveling to, from, or through Postal property because the Postal Service does not allow people to store a firearm safely in their vehicles. Anyone with a hunting rifle or shotgun in his car, or a handgun in his glove compartment for self-defense, violates the Postal Service ban by driv-ing onto Postal Service property. Thus, the ban also denies the right to keep and bear arms everywhere a law-abiding gun owner travels before and after visiting Postal Service property. The case is on appeal.

Both MSLF and the federal govern-ment have appealed aspects of the ruling.

TheLitigator Page Seven

legal

action

notable

Quotes

n A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the ruling of a California federal district court that the federal government can retroactively restrict the rights conveyed by the General Mining Law of 1872.

.nA challenge by Alaskans to the seizure of their property by an agency of the State of Alaska was dismissed on technical grounds; MSLF filed a notice of appeal in a case that could affect thousands of landowners throughout Alaska.

“I do really appreciate the fine work your organization is doing.”Russell C. FriendClovis, CA

“Thank you for a great job.”Beth StuckerSultan, WA

“Keep up the good work.”Natha J. DurhamEvergreen, CO

“Thanks for all you do to save our great freedom from an over powering govern-ment.”Bettie M. MarshEnglewood, CO

“Thank you for all your good work.”Edmond W. SmathersGolden, CO

“Thank you from the bottom of my heart.”Travis J. ComptonIndependence, MO

“Please keep up the good work. God bless the U.S.A.”Gorg A. BeechSacramento, CA

“Your organization is amazing—giv-ing us hope [to face] this unjust govern-ment.”Ray S. CorbettClark, CO

“I am very supportive of your work…. The EPA is out of control—dangerous to our freedom.”Joyce B. GoetzThousand Oaks, CA

“Thank you for defending the 2nd Amendment, liberty that is the cornerstone of the Bill of Rights.”Anne B. McClellandKingsport, TN

“Thanks for defending our gun rights.”Dan ForsythPueblo, CO

“Thank you for the good work you do.”Donald G. TolmanPowell, WY

“Stay with ‘em!”Philip W. SmithCentennial, CO

“Good health and luck. God bless you.”James R. KeeganBrooklyn, NY

“Please keep up the good work.”John MonahanRidgecrest, CA

“Thank you for your efforts for the American people and the Constitution.”Alberta KanyaFlushing, NY

“Many thanks for all you do for free-dom.”Susan KottaSea Cliff, NY

n The TABOR Foundation, which defends Colorado’s Taxpayers Bill of Rights, which requires a vote before any new taxes or indebtedness, noticed its appeal of the dismissal of its challenge to a Colorado law that permitted new taxes labeled “fees.”

n A Colorado mining company seeking to operate its underground alabaster mine year-round participated in what it regards as a futile appeal of the U.S. Forest Service’s failure to approve its plan of operations. Meanwhile, a Colorado federal district court dismissed the company’s lawsuit, without prejudice, pending the appeal.

n A Montana business whose property was seized by federal agents but never returned after no charges were

brought against the business filed an additional brief with the Montana federal district court to gain the return of its property.

n A challenge by environmental groups to the federal management plan for a Montana monuments that was rejected by the Montana federal district court was revived, at least in part, by two separate rulings of the U.S. Court of Appeals for the Ninth Circuit, which remanded the case.

n An Idaho woman who sued the Corps of Engineers to protect her Second Amendment rights briefed her right to a preliminary injunction in response to opposition by U.S. Department of Justice attorneys. A ruling is expected soon.

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president and chief operating officerWilliam Perry PendleyVice president and chief legal officerSteven J. LechnerVice president–administrationJanice K. AlvaradoeXecutiVe committee

John R. Gibson, NV: ChairmanJohn J. Blomstrom, WY: Vice ChairmanFrank S. Priestley, ID; SecretaryPeter K. Ellison, UT; TreasurerStephen M. Brophy, AZDavid Allen New, IDL. Jerald Sheffels, WADon Sparks, TX

arkansan family Versus its neighbor from hell—fedsOn behalf of an Arkansas family, the forebearers of which

settled in the Ozark Mountains in 1808, MSLF formally advised the U.S. Forest Service of a nearly five million dollar claim against the agency. Matthew McIlroy and his parents, M.L. and Mary McIlroy, who own the farm near Van Buren, filed the claim pursuant to the Federal Tort Claims Act (FTCA), which allows lawsuits against federal agencies for the tortious acts of their employees.

The McIlroy farm, which is comprised of three parcels in Franklin County in Arkansas northeast of Fort Smith, is abutted by the Ozark National Forest, which was proclaimed in 1908. Mr. McIlroy claims that, for several years, Forest Service employees knowingly and unlawfully trespassed upon and damaged, negligently dam-aged, and created a nuisance upon the McIlroy property. If the agency denies the claim or fails to answer within six months, Mr. McIlroy is permitted, under the FTCA, to file a lawsuit in Arkansas federal district court.

In the late 1960s, the family complained that Job Corps stu-dents were trespassing on and littering its property, damaging its fences, and destroying its hay. In 1971, the family discovered the Forest Service had drilled a well on its property. Forest Service of-ficials claimed that the well, used as a water source for Job Corps

facilities, was on federal land. For years, a series of top officials repeated that statement, despite the family’s protestations.

In 1973, the Job Corps tore down a 100-year old levee built upstream of the farm at the confluence of Mul-berry River and Fane’s Creek to protect the farm and the site of the Job Corps facility, which caused flooding and erosion downstream, alteration of the river bed due to silting and deposits of eroded rock, and destruction of 10 acres of the farm. Further illegal actions worsened the problem by widening a water channel across the farm.

In 1998, the family discovered part of its fence had been flattened, a sewage effluent line installed over the fence and across 50-60 yards of the farm, and Job Corps sewage effluent dis-charged from the line into Mulberry River. Then the Forest Service installed a “temporary” water line across the McIlroy’s property and blocked

entry to the farm, used heavy equipment to blade dirt and drag drainage ditches, built a service road across the farm, poured concrete on the road, caused serious erosion, destroyed fences, and loosed family livestock.

The Scots-Irish McIlroys homesteaded three parcels at Fly Gap, Beech Grove, and Cass in 1808. Arkansas became a terri-tory in 1819 and a state in 1836.

McIlroy ancestors circa 1870