Natrona County International Air Port, formerlly the Casper Air Base, to receive environmental review

Twelve locations on the ground of the Natrona County International Airport, which started out as a United States Army Air Force base during World War Two, are being investigated by the Wyoming Department of Environmental Quality and the U.S. Army Corps of Engineers for possible environmental contamination.  Sewage and waste disposal locations are the primary concerns.

Granted, such investigations may be warranted, but its odd to think that an investigation of these locations now, so long after they ceased being used, would be done.  More than anything, it might demonstrate our very much heightened modern sensitivity to environmental concerns.

Natrona County School District No. 1 Bond Issue Fails

The bond issue floated by NCSD No. 1, which would have sought a $33M bond for use in upgrading the safety features of existing schools, provided for high end equipment for the CAPs facility and replace the NCHS pool, which will soon be removed, has failed.  This follows a string of recent similar votes by Natrona County residents on similar bond issues, the one supporting Casper College being a recent exception.

I'll admit, I'm very disappointed.  I'm particularly disappointed as this means that when NC's historic pool comes down in a matter of weeks, it will not be replaced.  Ever.  The thought of a high school losing a pool in this fashion is a sad one.  That little Mid West does not get its tiny pool replaced, which this would also have done, is also sad.  And this put an added level of stress on the KWHS pool which is already hurting from it, and which will not now be repaired.  The facilities of the education system here are diminishing, just as the need for better facilities is increasing.

On the increase, the bond issue failure means that equipment that would have been provided via this funding for the CAPs facility will not be.  For years there's been a feeling that the schools need to do better to provide the ability to work for graduates right out of high school who do not want to go to college, but the voters will seemingly not allow for the funding of the equipment that might make that desire more of a reality.

Why the bond issue failed is no doubt a somewhat complicated issue.  Some people simply distrust the district with money for one reason or another.  Others have come to have a very pronounced anti tax view and will not voluntarily vote for any taxation.  We also live in rather odd political times, which tends to spill over into everything.  Just last week the state's GOP nearly censured Governor Mead, which is amazingly hard to imagine. Those individuals were upset regarding the bill that limited the role of Superintendent of Education Cindy Hill, and oddly enough those who supported Hill locally sometimes voiced their opposition to the bond in terms that tried to link their views surrounding Hill with their opposition to the bond, even though they are not linked in any fashion.

At any rate, people have a right to their views and their vote.  But something that's distressing is that there's a seeming trend locally for people to avoid building for the future, if they have a say in it.  Local municipalities and governmental bodies still will, but generally the populace has nearly uniformly been against nearly any project recently.  A prior bond issue that would have allowed for the classic Depression Era courthouse to be renovated similarly failed some years ago, ultimately leading the State to fund the later renovation of the Townsend Hotel, across the street from the old courthouse. The state's money did a nice job, but the Townsend looks like what it was, a hotel, and the loss of the judiciary's use of the courthouse is still a sad fact for those of us who practiced in it.  Granted, the county hadn't paid for that courthouse either, as it was a Federal project from the Great Depression.

We pride ourselves on our independence, but we're tending to show that we have a very near horizon when allowed a role in the planning, while the governmental bodies themselves take a longer view.  Our predecessors did as well, and now the things that they built for us are disappearing, and we're not replacing them.  With pools as an example, NC's pool will be the third pool lost in recent years that has not been replaced. The State cannot be expected to fund everything, but I've already heard some suggestions from those that opposed the bond that it should here.  I am sure it will not, at least not in the near term, but if it comes to, that means that we will actually have lost an added measure of local control, ironically. 

Wyoming History in the Making: Governor Mead wins Censure vote May 3, 2014.

In a historic first, sitting Governor Mead narrowly avoided being censured at the state Republican Party's convention. The proposal was advanced by those upset with his support of the Common Core education standards and his having signed SF104, redefining the duties of the Superintendent of Education, which the Wyoming Supreme Court found unconstitutional. 

The fact that a sitting governor would even be faced with such a motion, let alone that it would receive so much support from party activists, shows how split the state's GOP presently is.  It's been noted over time that the demise of the Democratic Party in Wyoming might serve to develop rifts in the GOP, which has no effective opposition.  It seems clear now that there is a deep divide between what is sometimes referred to as "Tea Party" elements in the party and more traditional conservative and moderate elements.

Wyoming History In the Making: Hill returns to office

Education Superintendent Cindy Hill returned to her office with full duties and authority, following the state's defeat on the constitutionality of the bill which removed most of her powers and vested them in an appointed office.  At least several resignations accompanied her return to office.

Wyoming History In The Making: Chess moves at the department of education, Apriil 8-9, 2014

Earlier this week Wyoming's Attorney General announced that the State would be willing to stipulate to the unconstitutionality of all of SF104 save for five relatively minor matters, and also allow Superintendent Cindy Hill to return to work while these were being litigated out.  The following day Hill, who has been complaining that the Governor's office has been blocking her efforts to return to work declined, thereby keeping her own self from returning to work.  Late yesterday the Governor's office reacted with surprise.

I must say that while I generally abstain from commenting on these matters, her decision was exactly what I predicted.  It's also a mistake as it lends credence to her opponents feelings that she's an unyielding absolutist.  The remaining issues are indeed minor and she could have resumed her duties nearly immediately.

Of course she's also presently a candidate for the Governor's office, and by remaining out of office she's free to campaign. I don't know that this figures into her reasoning, I doubt it, but it will undoubtedly occur to others who will point it out, to her detriment, later on.

It's also evidence of the growing split in the State's GOP, which is now sharply divided in some county's between Tea Party supporters and the traditional GOP.  Recently two counties censured Governor Mead, an extraordinary event in the State's history.  Only the fact that the state's Democratic Party is so weak as to be nearly a non player in most elections will keep this from being a factor in the general election, but it is suggestive of a maxim that when a political party has no real opposition, it begins to split into more than one party itsefl.

Wyoming History in the Making: United States Supreme Court rules in Brandt.

The United States Supreme Court issued its decision in Brandt v. United States.


Supreme Court of the United States

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MARVIN M. BRANDT REVOCABLE TRUST, ET AL., PETITIONERS v. UNITED STATES

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No. 12-1173 On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit. Argued January 14, 2014, Decided March 10, 2014, OCTOBER TERM, 2013

Syllabus

Congress passed the General Railroad Right-of-Way Act of 1875 to provide railroad companies "right[s] of way through the public lands of the United States," 43 U. S. C. § 934. One such right of way, obtained by a railroad in 1908, crosses land that the United States conveyed to the Brandt family in a 1976 land patent. That patent stated, as relevant here, that the land was granted subject to the railroad's rights in the 1875 Act right of way, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. The Government then sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the Brandt patent. Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoys full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a mere easement, and that the United States retained a reversionary interest in that land once the railroad abandoned it. The District Court granted summary judgment to the Government and quieted title in the United States to the right of way. The Tenth Circuit affirmed.

Held: The right of way was an easement that was terminated by the railroad's abandonment, leaving Brandt's land unburdened. Pp. 8-17.

(a) The Government loses this case in large part because it won when it argued the opposite in Great Northern R. Co. v. United States, 315 U. S. 262. There, the Government contended that the 1875 Act (unlike pre-1871 statutes granting rights of way) granted nothing more than an easement, and that the railroad in that case therefore had no interest in the resources beneath the surface of its right of way. This Court adopted the Government's position in full. It found the 1875 Act's text "wholly inconsistent" with the grant of a fee interest, id., at 271; agreed with the Government that cases describing the nature of rights of way granted prior to 1871 were "not controlling" because of a major shift in congressional policy concerning land grants to railroads after that year, id., at 278; and held that the 1875 Act "clearly grants only an easement," id., at 271. Under well-established common law property principles, an easement disappears when abandoned by its beneficiary, leaving the owner of the underlying land to resume a full and unencumbered interest in the land. See Smith v. Townsend, 148 U. S. 490, 499. Pp. 8-12.

(b) The Government asks this Court to limit Great Northern's characterization of 1875 Act rights of way as easements to the question of who owns the oil and minerals beneath a right [*2] of way. But nothing in the 1875 Act's text supports that reading, and the Government's reliance on the similarity of the language in the 1875 Act and pre-1871 statutes directly contravenes the very premise of Great Northern: that the 1875 Act granted a fundamentally different interest than did its predecessor statutes. Nor do this Court's decisions in Stalker v. Oregon Short Line R. Co., 225 U. S. 142, and Great Northern R. Co. v. Steinke, 261 U. S. 119, support the Government's position. The dispute in each of those cases was framed in terms of competing claims to acquire and develop a particular tract of land, and it does not appear that the Court considered — much less rejected — an argument that the railroad had only an easement in the contested land. But to the extent that those cases could be read to imply that the interest was something more, any such implication would not have survived this Court's unequivocal statement to the contrary in Great Northern. Finally, later enacted statutes, see 43 U. S. C. §§ 912, 940; 16 U. S. C. § 1248(c), do not define or shed light on the nature of the interest Congress granted to railroads in their rights of way in 1875. They instead purport only to dispose of interests (if any) the United States already possesses. Pp. 12-17.

496 Fed. Appx. 822, reversed and 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.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

In the mid-19th century, Congress began granting private railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads' rights of way. The settlers and their successors remained, but many of the railroads did not. This case presents the question of what happens to a railroad's right of way granted under a particular statute — the General Railroad Right-of-Way Act of 1875 — when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way?

I

A

In the early to mid-19th century, America looked west. The period from the Louisiana Purchase in 1803 to the Gadsden Purchase in 1853 saw the acquisition of the western lands that filled out what is now the contiguous United States.

The young country had numerous reasons to encourage settlement and development of this vast new expanse. What it needed was a fast and reliable way to transport people and property to those frontier lands. New technology provided the answer: the railroad. The Civil War spurred the effort to develop a transcontinental railroad, as the Federal Government saw the need to protect its citizens and secure its possessions in the West. Leo Sheep Co. v. United States, 440 U. S. 668, 674-676 (1979). The construction of such a railroad would "furnish a cheap and expeditious mode for the transportation of troops and supplies," help develop "the agricultural and mineral resources of this territory," and foster [*3] settlement. United States v. Union Pacific R. Co., 91 U. S. 72, 80 (1875).

The substantial benefits a transcontinental railroad could bring were clear, but building it was no simple matter. The risks were great and the costs were staggering. Popular sentiment grew for the Government to play a role in supporting the massive project. Indeed, in 1860, President Lincoln's winning platform proclaimed: "That a railroad to the Pacific Ocean is imperatively demanded by the interests of the whole country; that the Federal Government ought to render immediate and efficient aid in its construction." J. Ely, Railroads and American Law 51 (2001). But how to do it? Sufficient funds were not at hand (especially with a Civil War to fight), and there were serious reservations about the legal authority for direct financing. "The policy of the country, to say nothing of the supposed want of constitutional power, stood in the way of the United States taking the work into its own hands." Union Pacific R. Co., supra, at 81.

What the country did have, however, was land — lots of it. It could give away vast swaths of public land — which at the time possessed little value without reliable transportation — in hopes that such grants would increase the appeal of a transcontinental railroad to private investors. Ely, supra, at 52-53. In the early 1860s, Congress began granting to railroad companies rights of way through the public domain, accompanied by outright grants of land along those rights of way. P. Gates, History of Public Land Law Development 362-368 (1968). The land was conveyed in checkerboard blocks. For example, under the Union Pacific Act of 1862, odd-numbered lots of one square mile apiece were granted to the railroad, while even-numbered lots were retained by the United States. Leo Sheep Co., supra, at 672-673, 686, n. 23. Railroads could then either develop their lots or sell them, to finance construction of rail lines and encourage the settlement of future customers. Indeed, railroads became the largest secondary dispenser of public lands, after the States. Gates, supra, at 379.

But public resentment against such generous land grants to railroads began to grow in the late 1860s. Western settlers, initially some of the staunchest supporters of governmental railroad subsidization, complained that the railroads moved too slowly in placing their lands on the market and into the hands of farmers and settlers. Citizens and Members of Congress argued that the grants conflicted with the goal of the Homestead Act of 1862 to encourage individual citizens to settle and develop the frontier lands. By the 1870s, legislators across the political spectrum had embraced a policy of reserving public lands for settlers rather than granting them to railroads. Id., at 380, 454-456.

A House resolution adopted in 1872 summed up the change in national policy, stating:

"That in the judgment of this House the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people [*4] requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law." Cong. Globe, 42d Cong., 2d Sess., 1585.

Congress enacted the last checkerboard land-grant statute for railroads in 1871. Gates, supra, at 380. Still wishing to encourage railroad construction, however, Congress passed at least 15 special acts between 1871 and 1875 granting to designated railroads "the right of way" through public lands, without any accompanying land subsidy. Great Northern R. Co. v. United States, 315 U. S. 262, 274, and n. 9 (1942).

Rather than continue to enact special legislation for each such right of way, Congress passed the General Railroad Right-of-Way Act of 1875, 18 Stat. 482, 43 U. S. C. §§ 934-939. The 1875 Act provided that "[t]he right of way through the public lands of the United States is granted to any railroad company" meeting certain requirements, "to the extent of one hundred feet on each side of the central line of said road." § 934. A railroad company could obtain a right of way by the "actual construction of its road" or "in advance of construction by filing a map as provided in section four" of the Act. Jamestown & Northern R. Co. v. Jones, 177 U. S. 125, 130-131 (1900). Section 4 in turn provided that a company could "secure" its right of way by filing a proposed map of its rail corridor with a local Department of the Interior office within 12 months after survey or location of the road. § 937. Upon approval by the Interior Department, the right of way would be noted on the land plats held at the local office, and from that day forward "all such lands over which such right of way shall pass shall be disposed of subject to the right of way." Ibid.

The 1875 Act remained in effect until 1976, when its provisions governing the issuance of new rights of way were repealed by the Federal Land Policy and Management Act, § 706(a), 90 Stat. 2793. This case requires us to define the nature of the interest granted by the 1875 Act, in order to determine what happens when a railroad abandons its right of way.

B

Melvin M. Brandt began working at a sawmill in Fox Park, Wyoming, in 1939. He later purchased the sawmill and, in 1946, moved his family to Fox Park. Melvin's son Marvin started working at the sawmill in 1958 and came to own and operate it in 1976 until it closed, 15 years later.

In 1976, the United States patented an 83-acre parcel of land in Fox Park, surrounded by the Medicine Bow-Routt National Forest, to Melvin and Lulu Brandt. (A land patent is an official document reflecting a grant by a sovereign that is made public, or "patent.") The patent conveyed to the Brandts fee simple title to the land "with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimants, their successors and assigns, forever." App. to Pet. for Cert. 76. But the patent did include limited exceptions and reservations. For example, the patent "except[s] and reserv[es] 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"; "reserv[es] to the United States . . . a right-of-way for the existing [*5] Platte Access Road No. 512"; and "reserv[es] to the United States . . . a right-of-way for the existing Dry Park Road No. 517." Id., at 76-77 (capitalization omitted). But if those roads cease to be used by the United States or its assigns for a period of five years, the patent provides that "the easement traversed thereby shall terminate." Id., at 78.

Most relevant to this case, the patent concludes by stating that the land was granted "subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn's Peak & Pacific Railway Company, its successors or assigns." Ibid. (capitalization omitted). The patent did not specify what would occur if the railroad abandoned this right of way.

The right of way referred to in the patent was obtained by the Laramie, Hahn's Peak and Pacific Railroad (LHP&P) in 1908, pursuant to the 1875 Act.[fn1] The right of way is 66 miles long and 200 feet wide, and it meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border. Nearly a half-mile stretch of the right of way crosses Brandt's land in Fox Park, covering ten acres of that parcel.

In 1911, the LHP&P completed construction of its railway over the right of way, from Laramie to Coalmont, Colorado. Its proprietors had rosy expectations, proclaiming that it would become "one of the most important railroad systems in this country." Laramie, Hahns Peak and Pacific Railway System: The Direct Gateway to Southern Wyoming, Northern Colorado, and Eastern Utah 24 (1910). But the railroad ultimately fell short of that goal. Rather than shipping coal and other valuable ores as originally hoped, the LHP&P was used primarily to transport timber and cattle. R. King, Trails to Rails: A History of Wyoming's Railroads 90 (2003). Largely because of high operating costs during Wyoming winters, the LHP&P never quite achieved financial stability. It changed hands numerous times from 1914 until 1935, when it was acquired by the Union Pacific Railroad at the urging of the Interstate Commerce Commission. Ibid.; S. Thybony, R. Rosenberg, & E. Rosenberg, The Medicine Bows: Wyoming's Mountain Country 136-138 (1985); F. Hollenback, The Laramie Plains Line 47-49 (1960).

In 1987, the Union Pacific sold the rail line, including the right of way, to the Wyoming and Colorado Railroad, which planned to use it as a tourist attraction. King, supra, at 90. That did not prove profitable either, and in 1996 the Wyoming and Colorado notified the Surface Transportation Board of its intent to abandon the right of way. The railroad tore up the tracks and ties and, after receiving Board approval, completed abandonment in 2004. In 2006 the United States initiated this action seeking a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way. In addition to the railroad, the Government named as defendants the owners of 31 parcels of land crossed by the abandoned right of way.

The Government settled with or obtained a default judgment against all but one of those landowners — Marvin Brandt. He contested the Government's claim and [*6] filed a counterclaim on behalf of a family trust that now owns the Fox Park parcel, and himself as trustee.[fn2] Brandt asserted that the stretch of the right of way crossing his family's land was a mere easement that was extinguished upon abandonment by the railroad, so that, under common law property rules, he enjoyed full title to the land without the burden of the easement. The Government countered that it had all along retained a reversionary interest in the railroad right of way — that is, a future estate that would be restored to the United States if the railroad abandoned or forfeited its interest.

The District Court granted summary judgment to the Government and quieted title in the United States to the right of way over Brandt's land. 2008 WL 7185272 (D Wyo., Apr. 8, 2008).[fn3] The Court of Appeals affirmed. United States v. Brandt, 496 Fed. Appx. 822 (CA10 2012) (per curiam). The court acknowledged division among lower courts regarding the nature of the Government's interest (if any) in abandoned 1875 Act rights of way. But it concluded based on Circuit precedent that the United States had retained an "implied reversionary interest" in the right of way, which then vested in the United States when the right of way was relinquished. Id., at 824.

We granted certiorari. 570 U S. ___ (2013).

II

This dispute turns on the nature of the interest the United States conveyed to the LHP&P in 1908 pursuant to the 1875 Act. Brandt contends that the right of way granted under the 1875 Act was an easement, so that when the railroad abandoned it, the underlying land (Brandt's Fox Park parcel) simply became unburdened of the easement. The Government does not dispute that easements normally work this way, but maintains that the 1875 Act granted the railroads something more than an easement, reserving an implied reversionary interest in that something more to the United States. The Government loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U. S. 262 (1942).

In 1907, Great Northern succeeded to an 1875 Act right of way that ran through public lands in Glacier County, Montana. Oil was later discovered in the area, and Great Northern wanted to drill beneath its right of way. But the Government sued to enjoin the railroad from doing so, claiming that the railroad had only an easement, so that the United States retained all interests beneath the surface.

This Court had indeed previously held that the pre-1871 statutes, granting rights of way accompanied by checkerboard land subsidies, conveyed to the railroads "a limited fee, made on an implied condition of reverter." See, e.g., Northern Pacific R. Co. v. Townsend, 190 U. S. 267, 271 (1903). Great Northern relied on those cases to contend that it owned a "fee" interest in the right of way, which included the right to drill for minerals beneath the surface.

The Government disagreed. It argued that "the 1875 Act granted an easement and nothing more," and that the railroad accordingly could claim no interest in the resources beneath the surface. Brief for United States [*7] in Great Northern R. Co. v. United States, O. T. 1941, No. 149, p. 29. "The year 1871 marks the end of one era and the beginning of a new in American land-grant history," the Government contended; thus, cases construing the pre-1871 statutes were inapplicable in construing the 1875 Act, id., at 15, 29-30. Instead, the Government argued, the text, background, and subsequent administrative and congressional construction of the 1875 Act all made clear that, unlike rights of way granted under pre-1871 land-grant statutes, those granted under the 1875 Act were mere easements.

The Court adopted the United States' position in full, holding that the 1875 Act "clearly grants only an easement, and not a fee." Great Northern, 315 U. S., at 271. The Court found Section 4 of the Act "especially persuasive," because it provided that "all such lands over which such right of way shall pass shall be disposed of subject to such right of way." Ibid. Calling this language "wholly inconsistent" with the grant of a fee interest, the Court endorsed the lower court's statement that "[a]pter words to indicate the intent to convey an easement would be difficult to find." Ibid.

That interpretation was confirmed, the Court explained, by the historical background against which the 1875 Act was passed and by subsequent administrative and congressional interpretation. The Court accepted the Government's position that prior cases describing the nature of pre-1871 rights of way — including Townsend, supra, at 271 — were "not controlling," because of the shift in congressional policy after that year. Great Northern, supra, at 277-278, and n. 18. The Court also specifically disavowed the characterization of an 1875 Act right of way in Rio Grande Western R. Co. v. Stringham, 239 U. S. 44 (1915), as "`a limited fee, made on an implied condition of reverter.'" Great Northern, supra, at 278-279 (quoting Stringham, supra, at 47). The Court noted that in Stringham "it does not appear that Congress' change of policy after 1871 was brought to the Court's attention," given that "[n]o brief was filed by the defendant or the United States" in that case. Great Northern, supra, at 279, and n. 20.

The dissent is wrong to conclude that Great Northern merely held that "the right of way did not confer one particular attribute of fee title." Post, at 3 (opinion of SOTOMAYOR, J.). To the contrary, the Court specifically rejected the notion that the right of way conferred even a "limited fee." 315 U. S., at 279; see also id., at 277-278 (declining to follow cases describing a right of way as a "limited," "base," or "qualified" fee). Instead, the Court concluded, it was "clear from the language of the Act, its legislative history, its early administrative interpretation and the construction placed upon it by Congress in subsequent enactments" that the railroad had obtained "only an easement in its rights of way acquired under the Act of 1875." Id., at 277; see United States v. Union Pacific R. Co., 353 U. S. 112, 119 (1957) (noting the conclusion in Great Northern that, in the period after 1871, "only an easement for railroad purposes was granted"); 353 U. S., at 128 (Frankfurter, J., dissenting) (observing that the Court "conclude[d] in the Great Northern case that a right of way [*8] granted by the 1875 Act was an easement and not a limited fee").

When the United States patented the Fox Park parcel to Brandt's parents in 1976, it conveyed fee simple title to that land, "subject to those rights for railroad purposes" that had been granted to the LHP&P. The United States did not reserve to itself any interest in the right of way in that patent. Under Great Northern, the railroad thus had an easement in its right of way over land owned by the Brandts.

The essential features of easements — including, most important here, what happens when they cease to be used — are well settled as a matter of property law. An easement is a "nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Restatement (Third) of Property: Servitudes § 1.2(1) (1998). "Unlike most possessory estates, easements . . . may be unilaterally terminated by abandonment, leaving the servient owner with a possessory estate unencumbered by the servitude." Id., § 1.2, Comment d; id., § 7.4, Comments a, f. In other words, if the beneficiary of the easement abandons it, the easement disappears, and the landowner resumes his full and unencumbered interest in the land. See Smith v. Townsend, 148 U. S. 490, 499 (1893) ("[W]hoever obtained title from the government to any . . . land 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 railroad company the easement would cease, and the full title to that right of way would vest in the patentee of the land"); 16 Op. Atty. Gen. 250, 254 (1879) ("the purchasers or grantees of the United States took the fee of the lands patented to them subject to the easement created by the act of 1824; but on a discontinuance or abandonment of that right of way the entire and exclusive property, and right of enjoyment thereto, vested in the proprietors of the soil").[fn4]

Those basic common law principles resolve this case. When the Wyoming and Colorado Railroad abandoned the right of way in 2004, the easement referred to in the Brandt patent terminated. Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel.

III

Contrary to that straightforward conclusion, the Government now tells us that Great Northern did not really mean what it said. Emphasizing that Great Northern involved only the question of who owned the oil and minerals beneath a right of way, the Government asks the Court to limit its characterization of 1875 Act rights of way as "easements" to that context. Even if the right of way has some features of an easement — such as granting only a surface interest to the railroad when the Government wants the subsurface oil and minerals — the Government asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it. But nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading.

The Government argues that the [*9] similarity in the language of the 1875 Act and the pre-1871 statutes shows that Congress intended to reserve a reversionary interest in the lands granted under the 1875 Act, just as it did in the pre-1871 statutes. See Brief for United States 17-18. But that is directly contrary to the very premise of this Court's decision (and the Government's argument) in Great Northern: that the 1875 Act granted a fundamentally different interest in the rights of way than did the predecessor statutes. 315 U. S., at 277-278; see U. S. Great Northern Brief 30 ("[Great Northern's] argument . . . fails because it disregards the essential differences between the 1875 Act and its predecessors."). Contrary to the Government's position now — but consistent with the Government's position in 1942 — Great Northern stands for the proposition that the pre-1871 statutes (and this Court's decisions construing them) have little relevance to the question of what interest the 1875 Act conveyed to railroads.

The Government next contends that this Court's decisions in Stalker v. Oregon Short Line R. Co., 225 U. S. 142 (1912), and Great Northern R. Co. v. Steinke, 261 U. S. 119 (1923), support its position that the United States retains an implied reversionary interest in 1875 Act rights of way. Brief for United States 28-32. According to the Government, both Stalker and Steinke demonstrate that those rights of way cannot be bare common law easements, because those cases concluded that patents purporting to convey the land underlying a right of way were "inoperative to pass title." Brief for United States 31 (quoting Steinke, supra, at 131); see also Tr. of Oral Arg. 28-30, 33, 40-41, 44-45. If the right of way were a mere easement, the argument goes, the patent would have passed title to the underlying land subject to the railroad's right of way, rather than failing to pass title altogether. But that is a substantial overreading of those cases.

In both Stalker and Steinke, a railroad that had already obtained an 1875 Act right of way thereafter claimed adjacent land for station grounds under the Act, as it was permitted to do because of its right of way. A homesteader subsequently filed a claim to the same land, unaware of the station grounds. The question in each case was whether the railroad could build on the station grounds, notwithstanding a subsequent patent to the homesteader. The homesteader claimed priority because the railroad's station grounds map had not been recorded in the local land office at the time the homesteader filed his claim. This Court construed the 1875 Act to give the railroad priority because it had submitted its proposed map to the Department of the Interior before the homesteader filed his claim. See Stalker, supra, at 148-154; Steinke, supra, at 125-129.

The dispute in each case was framed in terms of competing claims to the right to acquire and develop the same tract of land. The Court ruled for the railroad, but did not purport to define the precise nature of the interest granted under the 1875 Act. Indeed, it does not appear that the Court in either case considered — much less rejected — an argument that the railroad [*10] had obtained only an easement in the contested land, so that the patent could still convey title to the homesteader. In any event, to the extent that Stalker and Steinke could be read to imply that the railroads had been granted something more than an easement, any such implication would not have survived this Court's unequivocal statement in Great Northern that the 1875 Act "clearly grants only an easement, and not a fee." 315 U. S., at 271.

Finally, the Government relies on a number of later enacted statutes that it says demonstrate that Congress believed the United States had retained a reversionary interest in the 1875 Act rights of way. Brief for United States 34-42. But each of those statutes purported only to dispose of interests the United States already possessed, not to create or modify any such interests in the first place. First, in 1906 and 1909, Congress declared forfeited any right of way on which a railroad had not been constructed in the five years after the location of the road. 43 U. S. C. § 940. The United States would "resume[] the full title to the lands covered thereby free and discharged of such easement," but the forfeited right of way would immediately "inure to the benefit of any owner or owners of land conveyed by the United States prior to such date." Ibid.

Then, in 1922, Congress provided that whenever a railroad forfeited or officially abandoned its right of way, "all right, title, interest, and estate of the United States in said lands" (other than land that had been converted to a public highway) would immediately be transferred to either the municipality in which it was located, or else to the person who owned the underlying land. 43 U. S. C. § 912. Finally, as part of the National Trails System Improvements Act of 1988, Congress changed course and sought to retain title to abandoned or forfeited railroad rights of way, specifying that "any and all right, title, interest, and estate of the United States" in such rights of way "shall remain in the United States" upon abandonment or forfeiture. 16 U. S. C. § 1248(c).

The Government argues that these statutes prove that Congress intended to retain (or at least believed it had retained) a reversionary interest in 1875 Act rights of way. Otherwise, the argument goes, these later statutes providing for the disposition of the abandoned or forfeited strips of land would have been meaningless. That is wrong. This case turns on what kind of interest Congress granted to railroads in their rights of way in 1875. Cf. Leo Sheep Co., 440 U. S., at 681 ("The pertinent inquiry in this case is the intent of Congress when it granted land to the Un ion Pacific in 1862."). Great Northern answered that question: an easement. The statutes the Government cites do not purport to define (or redefine) the nature of the interest conveyed under the 1875 Act. Nor do they shed light on what kind of property interest Congress intended to convey to railroads in 1875. See United States v. Price, 361 U. S. 304, 313 (1960) ("the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one").

In other words, these statutes do not tell us whether the United States has an interest in any [*11] particular right of way; they simply tell us how any interest the United States might have should be disposed of. For pre-1871 rights of way in which the United States retained an implied reversionary interest, or for rights of way crossing public lands, these statutes might make a difference in what happens to a forfeited or abandoned right of way. But if there is no "right, title, interest, [or] estate of the United States" in the right of way, 43 U. S. C. § 912, then the statutes simply do not apply.

We cannot overlook the irony in the Government's argument based on Sections 912 and 940. Those provisions plainly evince Congress's intent to divest the United States of any title or interest it had retained to railroad rights of way, and to vest that interest in individuals to whom the underlying land had been patented — in other words, people just like the Brandts. It was not until 1988 — 12 years after the United States patented the Fox Park parcel to the Brandts — that Congress did an about-face and attempted to reserve the rights of way to the United States. That policy shift cannot operate to create an interest in land that the Government had already given away.[fn5]

* * *

More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied reversionary interest. We decline to endorse such a stark change in position, especially given "the special need for certainty and predictability where land titles are concerned." Leo Sheep Co., supra, at 687.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[fn1] Locals at the time translated the acronym LHP&P as "Lord Help Push and Pull" or "Late, Hard Pressed, and Panicky." S. Thybony, R. Rosenberg, & E. Rosenberg, The Medicine Bows: Wyoming's Mountain Country 136 (1985).

[fn2] The other landowners had a potential interest in much smaller acreages: No other party could claim an interest in more than three acres of the right of way, and only six of the 31 potential claims amounted to more than one acre. See Amended Complaint in No. 06-CV-0184J etc. (D Wyo.), ¶¶ 6-10.

[fn3] The District Court dismissed without prejudice Brandt's separate counterclaim for just compensation. Brandt then filed a takings claim in the Court of Federal Claims. That case has been stayed pending the disposition of this one.

[fn4] Because granting an easement merely gives the grantee the right to enter and use the grantor's land for a certain purpose, but does not give the grantee any possessory interest in the land, it does not make sense under common law property principles to speak of the grantor of an easement having retained a "reversionary interest." A reversionary interest is "any future interest left in a transferor or his successor in interest." Restatement (First) of Property § 154(1)(1936). It arises when the grantor "transfers less than his entire interest" in a piece of land, and it is either certain or possible that he will retake the transferred interest at a future date. Id., Comment a. Because the grantor of an easement has not transferred his estate or possessory interest, he has not retained a reversionary interest. He retains all his ownership interest, subject to an easement. See Preseault v. United States, 100 F. 3d 1525, 1533-1534 (CA Fed. 1996) (en banc).

[fn5] The dissent invokes the principle that "any ambiguity in land grants `is to be resolved favorably to a sovereign grantor,'" post, at 1 (quoting Great Northern R. Co. v. United States, 315 U. S. 262, 272 (1942)), but the Solicitor General does not — for a very good reason. The Government's argument here is that it gave away more in the land grant than an easement, so that more should revert to it now. A principle that ambiguous grants should be construed in favor of the sovereign hurts rather than helps that argument. The dissent's quotation is indeed from Great Northern, where the principle was cited in support of the Government's argument that its 1875 Act grant conveyed "only an easement, and not a fee." Id., at 271.

JUSTICE SOTOMAYOR, dissenting.

The Court bases today's holding almost entirely on Great Northern R. Co. v. United States, 315 U. S. 262, 271 (1942), and its conclusion that the General Railroad Right-of-Way Act of 1875 granted "only an easement, and not a fee," to a railroad possessing a right of way. The Court errs, however, in two ways. First, it does not meaningfully grapple with prior cases — Northern Pacific R. Co. v. Town-send, 190 U. S. 267, 271 (1903), and Rio Grande Western R. Co. v. Stringham, 239 U. S. 44, 47 (1915) — that expressly concluded that the United States retained a reversionary interest in railroad rights of way. To the extent the Court regards Great Northern as having abrogated these precedents, it places on Great Northern more weight than that case will bear. Second, the Court relies on "basic common law principles," ante, at 12, without recognizing that courts have long treated railroad rights of way as sui generis property rights not governed by the ordinary common-law regime. Because Townsend and Stringham largely dictate the conclusion that the Government retained a reversionary interest when it granted the right of way at issue, and because any ambiguity in land grants "is to be resolved favorably to a sovereign grantor," Great Northern, 315 U. S., at 272, I respectfully dissent.

I

Over a century ago, this Court held that a right of way granted to a railroad [*12] by a pre-1871 Act of Congress included "an implied condition of reverter" to the Government if the right of way ceased to be used "for the purpose for which it was granted." Northern Pacific R. Co. v. Townsend, 190 U. S. 267, 271 (1903). The question in Townsend was whether individual homesteaders could acquire title by adverse possession to land granted by the United States as a railroad right of way. The Court held that they could not, because "the land forming the right of way was not granted with the intent that it might be absolutely disposed of at the volition of the company." Ibid. "On the contrary," the Court held, "the grant was explicitly stated to be for a designated purpose, one which negated the existence of the power to voluntarily alienate the right of way or any portion thereof." Ibid. Hence the "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." Ibid. In essence, the Court held, "the grant was of a limited fee," ibid.commonly known as a defeasible fee, see Restatement (First) of Property § 16 (1936) — rather than fee simple. Thus, if the railroad were to abandon its use of the right of way, the property would revert to the United States.

The Court later confirmed in Rio Grande Western R. Co. v. Stringham, 239 U. S. 44, 47 (1915), that this rule applies not just to pre-1871 land grants to railroads, but also to rights of way granted under the General Railroad Right-of-Way Act — the Act under which the United States granted the right of way at issue in this case. That case stated that rights of way granted under the 1875 Act are "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." Ibid. Indeed, Stringham sustained the validity of the reverter where, as here, the United States patented the adjacent land "subject to [the] right of way." Id., at 46. If Townsend and Stringham remain good law on that point, then this case should be resolved in the Government's favor.

II

A

This case therefore turns on whether, as the majority asserts, Great Northern "disavowed" Townsend and Stringham as to the question whether the United States retained a reversionary interest in the right of way. Ante, at 10. Great Northern did no such thing. Nor could it have, for the Court did not have occasion to consider that question.

In Great Northern, a railroad sought to drill for oil beneath the surface of a right of way granted under the 1875 Act. We held that the railroad had no right to drill, because the United States did not convey the underlying oil and minerals when it granted the railroad a right of way. In language on which the Court relies heavily, Great Northern opined that the 1875 Act granted the railroad "only an easement, and not a fee." 315 U. S., at 271.

But that language does not logically lead to the place at which the majority ultimately arrives. All that Great Northern held — all, at least, that was necessary to its ruling-was that the right of way did not confer one particular attribute of fee title. Specifically, the Court held, the right of way did not confer the right to exploit [*13] subterranean resources, because the 1875 Act could not have made clearer that the right of way extended only to surface lands: It provided that after the recordation of a right of way, "all . . . lands over which such right of way shall pass shall be disposed of subject to such right of way." Ibid. (second emphasis and internal quotation marks omitted). But the Court did not hold that the right of way failed to confer any sticks in the proverbial bundle of rights generally associated with fee title. Cf. B. Cardozo, The Paradoxes of Legal Science 129 (1928) (reprint 2000); United States v. Craft, 535 U. S. 274, 278 (2002). And this case concerns an attribute of fee title — defeasibility — that no party contends was at issue in Great Northern.

The majority places heavy emphasis on Great Northern's characterization of rights of way under the 1875 Act as "easements," rather than "limited fees." When an easement is abandoned, the majority reasons, it is extinguished; in effect, it reverts to the owner of the underlying estate, rather than to its original grantor. Ante, at 11-12. For that reason, the majority concludes, "basic common law principles" require us to retreat from our prior holdings that railroad rights of way entail an implied possibility of reverter to the original grantor — the United States-should the right of way cease to be used by a railroad for its intended purpose. Ante, at 12.

But federal and state decisions in this area have not historically depended on "basic common law principles." To the contrary, this Court and others have long recognized that in the context of railroad rights of way, traditional property terms like "fee" and "easement" do not neatly track common-law definitions. In Stringham, the Court articulated ways in which rights of ways bear attributes both of easements and fees, explaining that "[t]he right of way granted by [the 1875 Act] and similar acts is neither a mere easement, nor a fee simple absolute." 239 U. S., at 47. In New Mexico v. United States Trust Co., 172 U. S. 171, 182-183 (1898), the Court further observed that even if a particular right of way granted by the United States was an "easement," then it was "surely more than an ordinary easement" because it had "attributes of the fee" like exclusive use and possession. See also Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540, 569-570 (1904) (reaffirming this view). Earlier, in 1854, the Massachusetts Supreme Judicial Court had explained that although the right acquired by a railroad was "technically an easement," it "require[d] for its enjoyment a use of the land permanent in its nature and practically exclusive." Hazen v. Boston and Me. R. Co., 68 Mass. 574, 580 (1854). And the Iowa Supreme Court, in a late 19th-century opinion, observed that "[t]he easement" in question "is not that spoken of in the old law books, but is peculiar to the use of a railroad." Smith v. Hall, 103 Iowa 95, 96, 72 N. W. 427, 428 (1897).

Today's opinion dispenses with these teachings. Although the majority canvasses the special role railroads played in the development of our Nation, it concludes that we are bound by the common-law definitions that apply to more typical property. In doing so, it ignores the sui generis nature of railroad rights of way. That Great [*14] Northern referred to a right of way granted under the 1875 Act as an "easement" does not derail the Court's previous unequivocal pronouncements that rights of way under the Act are "made on an implied condition of reverter." Stringham, 239 U. S., at 47.

B

Not only does Great Northern fail to support the majority's conclusion; significant aspects of Great Northern's reasoning actually support the contrary view. In that case, the Court relied heavily on Congress' policy shift in the early 1870's away from bestowing extravagant "`subsidies in public lands to railroads and other corporations.'" 315 U. S., at 273-274 (quoting Cong. Globe, 42d Cong., 2d Sess., 1585 (1872)). That history similarly weighs in the Government's favor here. Just as the post-1871 Congress did not likely mean to confer subsurface mineral rights on railroads, as held in Great Northern, it did not likely mean to grant railroads an indefeasible property interest in rights of way — a kind of interest more generous than that which it gave in our cases concerning pre-1871 grants.

As in Great Northern, moreover, the purpose of the 1875 Act supports the Government. Congress passed the Act, we noted, "to permit the construction of railroads through public lands" and thus to "enhance their value and hasten their settlement." 315 U. S., at 272. In Great Northern, we held, that purpose did not require granting to the railroad any right to that which lay beneath the surface. The same is true here. As we recognized in Townsend and Stringham, the United States granted rights of way to railroads subject to "an implied condition of reverter in the event that the" railroads "cease[d] to use or retain the land for the purposes for which it is granted." Stringham, 239 U. S., at 47. Nothing about the purpose of the 1875 Act suggests Congress ever meant to abandon that sensible limitation.

Further, Great Northern relied on the conventional rule that "a grant is to be resolved favorably to a sovereign grantor," 315 U. S., at 272, and that "`nothing passes but what is conveyed in clear and explicit language,'" ibid. (quoting Caldwell v. United States, 250 U. S. 14, 20 (1919)). "Nothing in the [1875] Act," we observed, "may be characterized as a `clear and explicit' conveyance of the . . . oil and minerals" underlying a right of way. 315 U. S., at 272. Just so here, as nothing in the 1875 Act clearly evinces Congress' intent not to make the rights of way conveyed under the Act defeasible, in the manner described by Townsend and Stringham. In fact, the presumption in favor of sovereign grantors applies doubly here, where the United States was the sovereign grantor both of the right of way and of the ultimate patent.

III

The majority notes that in Great Northern, the United States took the position that rights of way granted to railroads are easements. Ante, at 9. In the majority's view, because the Great Northern Court adopted that position "in full," it is unfair for the Government to backtrack on that position now. Ante, at 9.

Even assuming that it is an injustice for the Government to change positions on an issue over a 70-year period, it is not clear that such a change in position happened here. Yes, the Government argued in Great Northern that a right of way was an "[*15] easement." It proposed, however, that the right of way may well have had "some of the attributes of a fee." Brief for United States in Great Northern R. Co. v. United States, O. T. 1941, No. 149, pp. 36-37. The Government contended that it is "`not important whether the interest or estate passed be considered an easement or a limited fee,'" observing that an easement "may be held in fee determinable." Id., at 35-36 (quoting United States v. Big Horn Land & Cattle Co., 17 F. 2d 357, 365 (CA8 1927)). Indeed, the Government expressly reserved the possibility that it retained a reversionary interest in the right of way, even if the surrounding land was patented to others. Brief for United States in Great Northern, at 10 n. 4. The Court is right to criticize the Government when it takes "self-serving" and contradictory positions, ante, at 12, but such critique is misplaced here.

* * *

Since 1903, this Court has held that rights of way were granted to railroads with an implied possibility of reverter to the United States. Regardless of whether these rights of way are labeled "easements" or "fees," nothing in Great Northern overruled that conclusion. By changing course today, the Court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.[fn*] I do not believe the law requires this result, and I respectfully dissent.

[fn*] Dept. of Justice, Environment and Natural Resources Div., FY 2014 Performance Budget, Congressional Submission, p. 7, http://www.justice.gov/jmd/2014justification/pdf/enrd-justification.pdf (visited Mar. 7, 2014, and available in Clerk of Court's case file).

Wyoming History in the Making: Cindy Hill attempts to return to her office prior to the District Court entering a final order.

Superintendent of Public Instruction Cindy Hill attempted to return to her office today, in spite of the district court having not yet entered a final order following remand by the Wyoming Supreme Court.

Hill, whose husband is a lawyer, was jumping the gun in doing so, and probably is well aware of that.  The district court judge presiding over the matter has informed the parties that a hearing will be heard on March 18, which is unlikely to actually result in an immediate order.  Typically, such hearings are convened to determine if further proceedings are necessary or for the court to determine what remains to be done. The court might require the winning party to circulate an order at that time, but the State will still have the opportunity to object to it.  Even if this matter proceeds very rapidly, it would be my guess that no order will be entered until mid April, if not considerably later.  And what the framework of that order will be is not yet known.

After failing to reoccupy her office, Hill and her supporters drove to the district court, which isn't far away, and sought to check to see if an order had been entered, which of course it would not have been.

Wyoming History in the Making: Hill Bill Special Legislative Session dead for now

The bill to extend the legislature's stay in Cheyenne into a Special Session died today when the bill failed to be acted on in time, in part because leadership chose to let it die rather than act in what they regarded as haste.

So, for now at least, no Special Legislative Session is on the immediate horizon.

Wyoming History in the Making: 2014 Legislature now likely to go into special session.

It now appears to be a near certainty that the Legislature shall convene a special session, immediately following the termination of the budget session, this year.

All special sessions are historic events.  This one may be particularly notable as it arises in such unusual circumstances.  The expressed goal of the special session, should it occur, would be to pass new legislation to fix the bill that resulted in changes to the state's education department, and more specifically to the role of the elected head of that department.  The Supreme Court found the statute passed last year to be unconstitutional and the Governor's office has authorized a petition for a rehearing.  The Legislature now seems disinclined to wait for the results of the rehearing.  Whether the Legislature will also consider a bill of impeachment for Cindy Hill remains an open question.

Wyoming History In The Making: EPA Stays Riverton EPA ruling. February 13, 2014.

At the bequest of the business counsels of both Tribes, and the State of Wyoming, the EPA has stayed its ruling that held that Riverton was within the boundaries of the Reservation.

While they no doubt approached it from somewhat different angles, this was a wise decision for all, as it gives time in which for this matter to develop legally, as well as to adjust to any potential consequences should the decision later be upheld.

Wyoming HIstory In the Making: "Hill" Bills intorduced, and one passes Senate. February 13, 2014.

Two bills seeking to address the situation by the Wyoming Supreme Court's ruling that the restructuring of the state Department of Education was unconstitutional have been introduced, and one has passed so far.

One bill simply seeks to reverse the prior bill, essentially restoring the situation to the status quo ante.  The other, however, the one that passed, seeks to form a committee to study the decision, in anticipation of a potential Special Legislative Session, passed the Senate.

December 3

1762   France ceded to Spain all lands west of the Mississippi.

1866  Nelson Story and his hands arrive in the Gallitin Valley thereby completing the first cattle drive from Texas to Montana.  The drive in its final stages was completed against order from the Army, after he passed Ft. Phil Kearney, due to Indian hostilities.  His men engaged in fights with the Indians along the way. The result of his efforts was the establishment of a successful Montana ranch a good four years prior to another drive of this type.

1867  The first soldier to be interred at the Ft. D. A. Russell Cemetery was.

1877  Former Wyoming Territorial Governor John Campbell appointed American Consul at Basel, Switzerland.

1888  Ella Watson applied for the WT brand.  Her application was rejected.

1890  School was canceled in Rawlins due to insufficient water for the school's boiler.   Attribution:  Wyoming State Historical Society.

1899  A fire at Ft. Washakie destroyed three buildings.  Ft. Washakie was still an Army utilized installation at that time, as well as being the seat of government for the Wind River Reservation, which it still is.

1901  US President Theodore Roosevelt delivers a speech to the House of Representatives asking the Congress to curb the power of trusts "within reasonable limits".

1916   The Cheyenne State Leader for December 3, 1916. Carranza sets to take on Villa and Teachers take on booze.
 

On Sunday December 3, readers in Cheyenne were perhaps a bit relieved to find that Carranza's forces seemed to be rallying, perhaps meaning that National Guardsmen at the border wouldn't be finding Villistas crossing back over into the United States.

At the same time, teachers came out in favor of Prohibition.

That doesn't really surprise me, and indeed strikes me as natural.  I'm not a teetotaler but its rather obvious that alcohol creates a flood of societal problems, quite a few of which teachers have to deal with daily.

Along those lines, it amazes me that in our current era we've not only come to regard the concerns that lead to Prohibition as being quaint and naive, but we're out trying to legalize ever intoxicant we can.  Related back to the concerns of the teachers in 1916, just this past week a 19 year old died in this town of, it appears, complications due to the ingestion of an illegal drug.  It would seem that the intoxicants that  are legal now are quite enough really.

1918  December 3, 1918: Americans in Germany, Wilson to Europe, Women out the workplace door.

Col Charles Howland and staff, Germany, December 3, 1918.  Note the Chaplain, far left.

12th Division at Camp Devens, Massachusetts, December 3, 1918.  Part of the National Army, it wold be demobilized by the end of January 1919.

The news of the day was pretty typical for the immediate post war.  One item to note, however. Strikers employed by a railway in Ohio were demanding that the railway fire its women employees.  Chances are that the women were wartime hires and the men wanted them to go, now that the war was over, and their conscripted colleges would be returning.  The railway apparently had ignored a prior promise to let them go.

And Wilson's troubles with some members of Congress were becoming more and more evident.

1919  December 3, 1919. The Carlisle News Hits the Press. 

Banner headlines appeared in the local press on this day in 1919.

It was a sad end, as we related yesterday.

And already it was noted his wound was not fatal.

And so this phase of the story concluded.

1924  Oil strike near Lovell.

1944 It was reported that a serviceman from Tensleep had asked for his mother to send coffee.  Attribution, Wyoming State Archives.

1979  A Western airlines  737 bound for Sheridan landed by mistake at Buffalo.

2014  Colorado's Governor Hickenlooper apologized to the Cheyenne and Arapaho Tribes for Colorado's actions leading to the November 29, 1864 Sand Creek Massacre.

October 17

1835 The "Texas Rangers" formed.

1844  The Republic of Texas issued a passport for the widow of Ben-Ash, the deceased chief of the Battise Village of the Coushatta Indians. The passport written by Sam Houston stated:  " Know Ye that the bearer hereof, the widow of Ben-Ash who died lately at this place (Washington-on-the-Brazos), is on her way home to the Coshattee tribe of Indians...near Smithfield on the Trinity river; and they are hereby recommended to the hospitality and kind treatment of the good people of the Republic on the road."

1901  The Auti Stage Line between Buffalo and Sheridan commenced operating.  Attribution:  Wyoming State Historical Society.

1919 

October 17, 1919 Airborne visitors to Casper and more crashes.

Mishaps continued to take a toll on aviators and their planes participating in the 1919 Air Derby.  Included in the mishaps were a directional one, that took an airplane all the way to Casper.

At the time, Casper's air strip was near Evansville.  Portions of it can still be seen there, but you have to know what you are looking at in order to appreciate what it was.

With the ongoing toll on American military aircraft its quite frankly surprising that the race continued, but perhaps at this point it would have been embarrassing to stop it.

One of the features of the aircraft in question is their short engine life.  No doubt more than one engine was replaced on more than one craft during the race.

In other news, it looked at the time as if the Reds were about to fall in Russia.

In the U.S., some worried about homegrown Reds.

New York Herald Cartoon, "To Make America Safe For Democracy", October 17, 1919

1937  University of Wyoming Board of Trustees approved the contract for construction of Student Union.  Attribution:  Wyoming State Historical Society.

1945 Eleven year old girl shot a 700 lb bear with a .22 near Worland.  Attribution:  Wyoming State Historical Society.

1969  One of the most memorable events in Wyoming sports and social history occurred when all fourteen black players on the 1969 University of Wyoming football team walked into head coach Lloyd Eaton’s office wearing black armbands.  They hoped to convince Eaton to let them wear the armbands the following day in UW's football game against BYU to protest the Mormon Church’s policy against blacks in the Mormon priesthood. Eaton dismissed them all from the team.  According to the football players involved, they were never allowed to even address Eaton and he simply dismissed them.  The team was undefeated at the time.

The event remains controversial, and the actual events remain somewhat murky.  In recent years the Black 14 have come to have been regarded with increasing sympathy, and in 2019 they were invited back to the University and given their letter jackets.

The event put the University in a terrible spot as the football team was amongst the best ever fielded by the University of Wyoming and Eaton's actions effectively gutted the team.  According to the conventional view, Eaton felt that he could not allow the team to be used as a vehicle for protest.  The black team members felt that they weren't given a chance to voice their views and if their version of events is correct, they were not.  The entire matter ended up in a meeting the following day in which the Governor met with the 14 and the Board of Trustees of the University.  In the end no resolution was arrived upon, Eaton remained coach, and the Board of Trustees voted to support Eaton.

The entire matter ended up in litigation.  Judge Kerr, the Federal Judge presiding over the matter, initiated an effort to have the players and the coach meet on November 10, 1969, at the courthouse.  Coach Eaton agreed but the players did not take him up on this, and there was an objection to the suggestion by their attorney who felt that a meeting would be a poor idea due to Eaton's strong personality.  At least a couple of players later indicated that they were not aware that the offer to meet had been made.  The case, therefore, preceded on into litigation, effectively dooming any chance of an immediate resolution.

The Federal suit went up to the 10th Circuit Court of Appeals twice, the entire matter was fought out after the fortunes of the football team that year had been sealed by the event.  In the first decision, the 10th Circuit states as follows:

443 F.2d 422

Joe Harold WILLIAMS et al., Plaintiffs-Appellants,
v.
Lloyd EATON, as Football Coach of the University of
Wyoming, et al., Defendants-Appellees.

On October 18, 1969, a football game was scheduled in Laramie, Wyoming, between the University of Wyoming (hereafter the University) and Brigham Young University (hereafter BYU). BYU is a university located at Provo, Utah, and is owned and operated by the Church of Jesus Christ of Latter-Day Saints. This controversy involves the complaint of Black athletes at the University against alleged racial policies of the Mormon Church and by athletes playing for BYU. And the case concerns also a 'football coaching rule' of the Wyoming University Coach that football players at the University should not participate in demonstrations or protests. Shortly before the scheduled game with BYU the Black athletes at the University had a disagreement with the Coach about the wearing of the armbands as a protest against alleged Mormon beliefs and alleged acts of BYU players and were dismissed from the team, the dismissal being sustained by the University Trustees. The Black athletes then brought this civil rights suit.

The District Court proceedings and issues on appeal

This case arose as a civil rights action under 28 U.S.C. 1331 and 1343 and 42 U.S.C. 1983 for alleged violations of plaintiffs' Federal constitutional rights by their dismissal from the University football team which plaintiffs allege was due to the wearing of black armbands in protest against the views of the Mormon Church at a meeting the day before the game. The complaint sought interlocutory and permanent injunctive relief, a declaratory judgment and damages. Plaintiffs are fourteen of the Black athletes at the University and the defendants are the football coach, defendant Eaton (hereafter the Coach), the University Athletic Director, the Trustees of the University, its President and the State of Wyoming.  Since we feel that the pleadings are of substantial importance we turn to a discussion of their allegations in detail.

The complaint averred that on Friday morning preceding the game plaintiff Williams and thirteen other Black football players entered the coaching offices at the University in civilian clothes wearing armbands; that Williams asked the Coach to discuss the matter of the BYU protest with the fourteen players; that during a subsequent discussion with them the Coach advised the Black athletes that they were dismissed from the football squad for wearing black armbands.

The complaint alleged that such action was a deprivation of plaintiffs' right to peaceably demonstrate under the Constitution of the United States; that they were suspended from the football team without cause and for the sole reason that they wore armbands in peaceable and symbolic demonstration; that the dismissal was without a proper hearing or notice of any charges and without an opportunity being afforded for the plaintiffs to present evidence in their behalf; and that the action was in violation of their rights under the First, Ninth and Fourteenth Amendments of the Federal Constitution and various provisions of the Wyoming Constitution. It was further alleged that the suspension and dismissal of the plaintiffs had the effect of and was intended to penalize them for exercising such rights, and to compel conformance to undefined concepts of personal behavior set by the Coach, the Athletic Director, the University President and the Trustees. The complaint charged further the policy of the Coach and the subsequent ratification of his action by the Trustees amounted to an administrative requirement that was vague and over-broad with a chilling effect on the exercise of First and Ninth Amendment rights. The complaint prayed for convening of a three-judge court, a restraining order and preliminary and permanent injunctions, a declaratory judgment that the dismissal of the athletes by the University was unconstitutional, for damages in the amount of $75,000 for each plaintiff and punitive damages.

By their answer defendants admitted the jurisdiction invoked but denied any violation of plaintiffs' constitutional rights. Among other things they alleged that the action of the Trustees dismissing plaintiffs from the football team was taken after a full and complete hearing and presentation by each plaintiff and by others for them; that such action continued in force their athletic scholarships, subject to later review; that plaintiffs had stated they would not rejoin the team unless permitted to wear the armbands during the game with BYU, and that they would not rejoin if defendant Eaton remained a Coach; that plaintiffs' demands were in violation of their written scholarship agreements, entered with knowledge of the football coaching rule against their participation in protests and demonstrations; and that plaintiffs' dismissal by the Coach had not been solely based or predicated on the fact that plaintiffs were wearing black armbands when they first met with the Coach on the matter.

The answer further claimed that if the defendants had acceded to the demands of the plaintiffs, they would have acted as State officers and agents contrary to the First Amendment prohibition against State establishment of any religion and its guarantee for free exercise of religion, and like provisions of the Wyoming Constitution. Also the answer averred that the complaint failed to allege facts constituting a cause of action on which damages could be awarded for the reason that the defendants are all 'immune from such suit.' Further the verified answer denied that plaintiffs sustained any damage and denied the allegation of the verified complaint that the amount in controversy exceeds $10,000, exclusive of interest and costs. By counterclaim defendants prayed for injunctive relief against further false or inflammatory statements by plaintiffs' claims that the defendants had denied plaintiffs' constitutional rights and had practiced racial discrimination against them.

The District Court held an evidentiary hearing on the application for a temporary restraining order. On conclusion of the hearing the Court denied the application for the restraining order and for a three-judge court. Then after answering the defendants filed a 'Motion to Dismiss and/or for Summary Judgment.' The Court granted leave for the filing of supporting and opposing affidavits. After the affidavits were filed and on consideration of them and the transcript of hearing on the restraining order the Court entered its 'Order Granting Motion To Dismiss (With Findings).' 310 F.Supp. 1342.

The Order of Dismissal stated that it was granted for two reasons (1) that the complaint failed to state a claim on which relief can be granted, there being immunity of the State and the individual defendants from suit under the Eleventh Amendment and Wyoming law; and (2) that the complaint should be dismissed for lack of jurisdiction for the reason that the claim for damages is insubstantial and totally speculative, which reason was supported by detailed findings of fact made from the testimony and affidavits. The counterclaim of defendants was also dismissed and no cross-appeal from that part of the order was taken.

In its findings in support of the second ground for dismissal of the plaintiffs' claims, the Court said that 'based upon the test of credibility, the operative facts, from the whole of this record * * *' /3/ that these facts were found; that the plaintiffs had never previously protested against the rule of the Coach that University athletes not participate in demonstrations or protests; that the Black athletes had been wearing armbands at the meeting with the Coach when they were dismissed from the football team; that the armbands were worn in specific protest against specific beliefs of the Mormon church and BYU, with intent on the part of the plaintiffs to demonstrate during the scheduled game; and that they were notified by the Coach that they were dismissed from the team for undertaking such demonstration-protest; and that the plaintiffs stated during an emergency meeting of the Trustees that they would not return to the football team unless they were permitted to wear the armbands or so long as the defendant Eaton remained as football coach at the University. The Court found that had defendants acceded to the demands of the plaintiffs, such action would have been violative of the First Amendment principles requiring neutrality in religious matters and similar provisions in the Wyoming Constitution, and that the plaintiffs' damage claims were therefore insubstantial. We note here that opposing testimony and affidavits for the plaintiffs conflicted with proof of the defendants in several particulars and that the plaintiffs denied that they had insisted on wearing the armbands during the game.

The plaintiffs brought this appeal and we view it as involving these principal questions:

(1) Whether the Eleventh Amendment or Wyoming law afford immunity to the defendants from the civil rights claims seeking injunctive and declaratory relief and damages for allegedly unconstitutional acts;

(2) whether the complaint stated any claim for relief under the First Amendment and Federal constitutional decisions on freedom of expression;

(3) whether the order was proper ad a dismissal for failure to state a claim for relief or as a summary judgment; and

(4) whether the First Amendment establishment and free exercise clauses and similar Wyoming provisions required and justified defendants' actions.

The Eleventh Amendment and The Wyoming Constitution

We turn first to the holding of the District Court that this action was barred by the immunity from suit conferred by the Eleventh Amendment and the Wyoming Constitution. See 310 F.Supp. at 1349-1350. The principal provisions are set out in the margin.4 The Wyoming constitutional provision referred to states that 'suits may be brought against the state in such manner and in such courts as the legislature may by law direct.' Art. 1, 8, Wyo. Constitution. And the State statutes declare that any action permitted by law against the University Trustees and several other named agencies 'is hereby declared to be an action against the State of Wyoming and hereafter no action shall be brought against any of such boards, commissions or trustees except in the courts of the State of Wyoming and no action shall be maintained against any of such boards, commissions or trustees in any other jurisdiction.' 1-1018, Wyo. Statutes of 1957.5

Thus, by law immunity of the Trustees from suit is waived only as to such actions 'in the courts of the State of Wyoming.' We do not feel the immunity was waived as to the suits in the Federal Courts. Such waiver provisions are strictly construed. Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397, 399; Hamilton Manufacturing Co. v. Trustees of State Colleges in Colorado, 356 F.2d 599 (10th Cir.). Where there is no clear intent in such a waiver of immunity statute to subject the state agencies to actions in the Federal Courts such suits may not be maintained. Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862; Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389; Great Northern Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121; Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742.

In facing this issue appellants' first contend that the immunity conferred by the constitutional provisions has been waived by defendants in this suit. The argument is that the answer admitted the jurisdiction invoked and that the defendants also sought affirmative relief by the prayer for an injunction so that the immunities were waived. At this point we note that the answer alleged that the defendants were immune from suit.

This waiver question turns on Wyoming law as to whether an authorization for such waiver was given by State law. Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 467, 65 S.Ct. 347. The Wyoming Constitution seems clear in its provision that amenability to suit is granted 'in such manner and in such courts as the legislature may by law direct.' Despite the inequities that the immunity may produce, it '* * * is so well established in this state that any change must be effected by the legislature rather than by the courts.' Denver Buick, Inc. v. Pearson, 465 P.2d 512, 514 (Wyo.); Bondurant v. Board of Trustees of Memorial Hospital, 354 P.2d 219 (Wyo.). Such waiver must be by an express legislative provision. Hjorth Royalty Co. v. Trustees of University, 30 Wyo. 309, 222 P. 9, 11.

There is no Wyoming statute waiving the immunity from this type of suit in the Federal Court. The plaintiffs point to the general provision in 9-132, Wyo. Statutes of 1957, authorizing the Attorney General to go into State or Federal Court to prosecute or defend suits on behalf of the State whenever its interests would be best served by so doing. However, we are not persuaded that this statute constitutes the required waiver or authorizes waiver by the Attorney General in view of the State constitutional requirement for waiver by statute and the strict construction of statutes dealing with such waivers. Harrison v. Wyoming Liquor Commission, supra; Hamilton Manufacturing Co. v. Trustees of State Colleges in Colorado, supra. We feel that the Attorney General was not authorized to waive the immunity conferred by the Eleventh Amendment, if such waiver was made by the pleading. See Utah Construction Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951, 955 and Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 468, 65 S.Ct. 347. Therefore, we must consider the impact of the constitutional provisions on immunity from suit.

Insofar as the claims for injunctive and declaratory relief are concerned, the principles are well established. 'It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a state from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the state within the meaning of that amendment.' Smyth v. Ames, 169 U.S. 466, 518, 18 S.Ct. 418, 422, 42 L.Ed. 819; see also Ex parte Young, 209 U.S. 123, 155-156, 28 S.Ct. 441, 52 L.Ed. 714; Larson v. Domestic & Foreign Corporation, 337 U.S 682, 690, 69 S.Ct. 1457, 93 L.Ed. 1628; McCoy v. Louisiana State Board of Education, 332 F.2d 915 (5th Cir.); and School Board of City of Charlottesville, Va. v. Allen, 240 F.2d 59, 62-63 (4th Cir.). And if the plaintiffs establish a violation of Federal constitutional rights and entitlement to relief under the Federal civil rights acts, the Wyoming Constitution may not immunize the defendants and override the Federal constitutional principles in view of the Supremacy Clause. Therefore, if a violation of Federal constitutional rights is established by plaintiffs, the immunity under the Eleventh Amendment and the Wyoming Constitution would not bar injunctive or declaratory relief against the defendants other than the State of Wyoming. McCoy v. Louisiana State Board of Education, supra, and Dorsey v. State Athletic Commission, 168 F.Supp. 149 (E.D.La.), aff'd 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. And the Federal Court would have jurisdiction to grant such relief, even though the claim for money damages is barred by the immunity, as we discuss below. See Hopkins v. Clemson Agricultural College, 221 U.S. 636, 649, 31 S.Ct. 654, 55 L.Ed. 890.

With respect to the State of Wyoming, we are satisfied that the dismissal was proper. In view of the principles of the Eleventh Amendment relief could not be granted against the State itself, and the State is not a person within the meaning of the civil rights statute. 42 U.S.C. 1983; Whitner v. Davis, 410 F.2d 24, 29 (9th Cir.).

The claims for money damages present a more difficult problem. In some circumstances State officers may be sued for money damages as individuals under the civil rights statutes. See Whitner v. Davis, supra at 30. And since suits for injunctive relief against unconstitutional acts by State officers are not viewed as unconsented suits against the State under the authorities cited above, some courts have held that a claim against them for money damages may also be maintained on the ground that the immunity does not shield unconstitutional action. See, e.g., Sostre v. Rockefeller, 312 F.Supp. 863, 879 (S.D.N.Y.), and cases there cited.

However, we feel that the basis for allowing equitable suits against unconstitutional action is that they merely enjoin such acts, and we believe the result is different where the relief sought would 'expend itself on the public treasury or domain, or interfere with the public administration. Ex parte New York, 256 U.S. 490, 500, 502, 41 S.Ct. 588, 590, 591, 65 L.Ed. 1057.' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. When the action in essence is for recovery of money from the State the immunity is available even though individual officials are nominal defendants. See Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 464, 65 S.Ct. 347; Hamilton Manufacturing Co. v. Trustees of State Colleges in Colorado, supra; and Westberry v. Fisher, 309 F.Supp. 12, 18-20 (D.Me.); contra, Sostre v. Rockefeller, supra.

The complaint before the District Court named defendants Eaton (the Coach), Jacoby (the Athletic Director), and the several Trustees and President of the University by name and with express description of their positions. Brief allegations were made also about their official functions. Each paragraph describing these several defendants concluded with the statement that he or they were sued in their official capacity. The District Court concluded that the complaint does not contain any allegation that the defendants were personally liable. 310 F.Supp. at 1350. We agree, finding no averment in the complaint that may reasonably be interpreted as asserting a claim for money damages against these defendants in their individual capacities. Since the money claim alleged was directed solely against them in their official capacities, and since there was no waiver of immunity of such State officers or agents from suit, we conclude that the dismissal as to the claims for money damages against them was proper.

The First Amendment and Federal Constitutional Decisions on Freedom of Expression

The starting point for weighing the constitutional claim of the plaintiffs is Tinker v. Des Moines Independent School District, et al., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. At least with respect to the allegations of the complaint before us, the Tinker case bears obvious similarities in that the claimed right was there asserted for the wearing of black armbands to protest the Government's policy in Vietnam. The plaintiffs were suspended for wearing armbands. Nominal damages and an injunction were sought against enforcement of a regulation that students would be requested to remove protest armbands and that they would be suspended until their removal.

After an evidentiary hearing the District Court dismissed the complaint on the ground that the action of the school authorities was reasonable in order to prevent disturbance of school discipline. The Eighth Circuit affirmed without opinion, being equally divided. The Supreme Court reversed, holding that First Amendment rights of expression were violated and that there was no showing or finding that the conduct in question would materially interfere with school discipline. Because of its controlling significance in this case, we refer to the following reasoning of the Supreme Court:

'First Amendment rights, applied in light of the special characteristics of the school environment, are avilable to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate.' (393 U.S. at 506, 89 S.Ct. 736)

'In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained. Burnside v. Byars, supra, (363 F.2d) at 749.' (393 U.S. at 509, 89 S.Ct. at 738)

'* * * A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. Burnside v. Byars, supra, (363 F.2d) at 749. But conduct by the student, in class or out of it, which for any reason-- whether it stems from time, place, or type of behavior-- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (C.A.5th Cir. 1966).' (393 U.S. at 512-513, 89 S.Ct. at 740)

See also Burnside v. Byars, 363 F.2d 744 (5th Cir.); Saunders v. Virginia Polytechnic Institute, 417 F.2d 1127 (4th Cir.); Aguirre v. Tahoka Independent School District, 311 F.Supp. 664 (N.D.Tex.); and Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.).

Plaintiffs' averments have been outlined in detail. Their allegations and affidavits in essence said that they were dismissed from the football team by the Coach during their meeting with him; that he stated that they were dismissed from the squad for wearing black armbands; and plaintiffs averred that their dismissal from the team was without cause and for the sole reason that they wore armbands in peaceable and symbolic demonstration. Defendants' answer made general denial covering such allegations.

There was no showing before the District Court of the plaintiffs' conduct producing or that it likely would produce any disturbance interfering with school discipline or the interests which the authorities are entitled to protect, under the principles of the Tinker case. Whether such circumstances may have existed was a matter that was not established conclusively so that a summary judgment could be entered against the plaintiffs. And whether at trial circumstances may be established justifying the defendants' actions under the standards of Tinker and similar cases, we cannot say. Nevertheless, for reasons discussed more fully below, dismissal for insufficiency of the allegations or by way of summary judgment was inappropriate. In the light of the principles of the Tinker case and similar authorities, we cannot say that the complaint fails to state a claim on which relief could be granted or that summary judgment was proper.

We have considered our opinion in Jones v. Hopper, 410 F.2d 1323, cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399, involving a civil rights claim where infringement of First Amendment rights was alleged by refusal to reappoint a professor, assertedly because of speeches and writings offensive to the Trustees. Jones v. Hopper held the complaint insufficient in view of the statutory authority of the Trustees to appoint, remove, discharge and suspend professors, and in view of the lack of any contractual arrangement for renewal of the professor's employment. Here, however, plaintiffs alleged irreparable harm from their dismissal from the team in that their ability to promote their careers, practice and perform their skills has been denied them, and that the dismissal caused them to lose their chance to be observed by scouts as potential professional football players during the 1969 football season, and has caused them emotional and mental stress and anxiety. The answer alleged the existence of written athletic scholarship agreements, stating, however, that they had been continued in force subject to further review. Nevertheless, we view the interests and injuries averred by these plaintiffs as distinguishing the case from Jones v. Hopper.

Propriety of the Order of Dismissal

As indicated above, the District Court order stated that the complaint was dismissed for failure to state a claim on which relief could be granted. 310 F.Supp. at 1349-1350. However, 'in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Parkinson v. California Co., 233 F.2d 432 (10th Cir.); and see Jones v. Hopper, supra, 410 F.2d at 1327. The allegations must be taken as true and all reasonable inferences from them must be indulged in favor of the complaint. See Olpin v. Ideal National Insurance Co., 419 F.2d 1250 (10th Cir.), cert. denied, 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d 809; and Virgin Islands Corporation v. W. A. Taylor & Co., 202 F.2d 61 (2d Cir.). And viewing the allegations of the complaint under the principles of the Tinker case and similar authorities, we feel that dismissal for failure to state a claim may not be sustained.

However, the order of the District Court and the record persuade us that the Court followed the procedure mentioned in Rule 12(b), F.R.Civ.P., and treated the motion as one for summary judgment. The Court afforded the parties opportunity to submit affidavits, and gave detailed consideration to the pleadings, the transcript of the temporary restraining order hearing, and the affidavits. Since matters outside the pleading were presented and not excluded by the Court but considered by it, the motion was treated as one for summary judgment. Rule 12(b); Ryan v. Scoggin, 245 F.2d 54 (10th Cir.); Whitner v. Davis, supra.

Viewing the order as granting summary judgment, we believe it may not be sustained as to the claims against the State officers for equitable and declaratory relief. There were disputed issues of substantial importance that remained. The plaintiffs alleged and stated by affidavit that they were discharged for wearing the armbands at the time of the meeting with the Coach. The defendants, however, alleged and stated by affidavit that the plaintiffs insisted that they would not rejoin the team unless they were permitted to wear the armbands during the game; that they would not rejoin if the Coach remained in his position; and that if defendants had acceded to the demands relating to the armbands, they would have violated constitutional principles on neutrality in religious matters-- thereby raising an issue on causation. Thus a central issue of fact was unresolved and remained for disposition by trial.

Summary judgment was proper only if no material issue of fact remained and a formal trial would have been fruitless. Rule 56, F.R.Civ.P.; Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; Frey v. Frankel, 361 F.2d 437, 442 (10th Cir.). The summary procedure '* * * does not serve as a substitute for a trial of the case nor require the parties to dispose of litigation through thr use of affidavits.' Bushman Construction Co. v. Conner, 307 F.2d 888, 892 (10th Cir.); Frey v. Frankel, supra, 361 F.2d at 442. We cannot agree that the making of findings and the dismissal-- which was in effect a summary judgment-- was proper.

On appeal the defendants have argued that the findings of fact in the order were not clearly erroneous but are supported by substantial evidence and justify an affirmance. However, the findings were not made after trial and so the provisions of Rule 52(a), F.R.Civ.P., according respect to such findings, do not apply. 3 Barron and Holtzoff, Federal Practice and Procedure, 202 (Charles A. Wright, rev. ed. 1958). Instead, they were made only on consideration of the pleadings, affidavits and the transcript of the hearing on the application for a temporary restraining order, which had been earlier denied. Although there had been an adversary hearing on the temporary restraining order application, a finding based on the interlocutory hearing would not serve as the ground for a final judgment. See Sooner State Dairies, Inc. v. Townley's Dairy Co., 406 F.2d 1328 (10th Cir.).

Religious Beliefs and Restrictions of the Free Exercise and Establishment Clauses

The remaining principal issue concerns the First Amendment free exercise and establishment clauses which were binding on defendants as State officers, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, and like provisions of the Wyoming Constitution. The defendants claimed that the constitutional provisions on religion prohibited acceding to the plaintiffs' demands, to avoid favoring a religious belief or interfering with such beliefs of others. The District Court upheld the defense of the actions by the State officers under these constitutional provisions. Its order concluded that had the defendants acceded to plaintiffs' demands (found to have included the right to wear the armbands during the game), then defendants' action would have been violative of the establishment clause and its requirement of complete neutrality in religious matters. The order held also that such action would have violated like provisions on religious toleration and free exercise in the Wyoming Constitution. 310 F.Supp. at 1352-1353.

The Federal Constitution enjoins strict neutrality on State officials in matters of religious belief. Epperson v. Arkansas, 393 U.S. 97, 103-104, 89 S.Ct. 266, 21 L.Ed.2d. 228; Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844; Everson v. Board of Education, 330 U.S. 1, 14-15, 67 S.Ct. 504, 91 L.Ed. 711. The Abington opinion says the constitutional ideal is '* * * absolute equality before the law, of all religious opinions and sects * * *. The government is neutral, and, while protecting all, it prefers none, and it disparages none.' 374 U.S. at 215, 83 S.Ct. at 1567. 'It may not be hostile to any religion * * *' Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.Ct. at 270. Of course, these constitutional restrictions applied through the Fourteenth Amendment govern only State action. The First Amendment provisions would be implicated only if the State has been significantly involved by defendants' actions. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830; Adickes v. S. H. Kress & Co., 398 U.S. 144, 170-171, 90 S.Ct. 1598, 26 L.Ed.2d 142.

We do not feel that the present record supported a summary disposition on the ground that these First Amendment principles required or justified the defendants' actions. While we realize the importance of the principles which the District Court was properly considering, the facts relating to them were in significant conflict. After trial ultimate findings may show that the plaintiffs were dismissed from the team because of their demands to wear the armbands during the game. And it may be found that permission therefor by the defendants would have been recognized as a significant involvement of the State officers in an expression of hostility to the religious beliefs of others.10 Such findings may justify the defendants' actions on the constitutional principles of religious neutrality. However, such close and delicate constitutional questions should be decided when the facts are fully developed at trial.

Conclusion

Accordingly the order is affirmed with respect to the dismissal as to the State of Wyoming, and with respect to the dismissal as to the claims for money damages against the State officers; the order is vacated with respect to the dismissal of the claims against the State officers for equitable and declaratory relief; and the cause is remanded for further proceedings.

1 Defendants' answer described the football coaching rule of the football coaching staff of the University of Wyoming as one '* * * prohibiting demonstrations or protests by members of the University of Wyoming football team.'

2 On their motion this appeal has been dismissed as to plaintiffs John M. Griffin, Donald K. Meadows and Theodor T. Williams

3 310 F.Supp. at 1350

4 The Eleventh Amendment to the Federal Constitution provides: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects or any Foreign State.'
While one of the plaintiffs was a Wyoming resident, the Amendments as expanded applies to this suit by him, as well as to the remaining plaintiffs, who are non-residents of the State. See Parden v. Terminal Ry. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 12 L.Ed.2d 233.
Article 1, 8 of the Wyoming Constitution provides:
'8. Courts open to all; suits against state.-- All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.'

5 1-1018, Wyoming Statutes of 1957, provides: '1-1018. Actions against state agencies deemed actions against state; jurisdiction.-- Any action permitted by law, which shall be brought against Wyoming farm loan board, board of land commissioners, state board of charities and reform, public service commission of Wyoming, state board of equalization of Wyoming, or the trustees of the University of Wyoming is hereby declared to be an action against the State of Wyoming and hereafter no action shall be brought against any of such boards, commissions or trustees except in the courts of the State of Wyoming and no action shall be maintained against any of such boards, commissions or trustees in any other jurisdiction.'
The Board of Trustees of the University is constituted a body corporate and given numerous powers by 21-352 and 21-353, Wyo. Statutes of 1957. They are empowered to appoint a person to examine and approve payment of all legal claims against the corporation, among other things. However, there is no provision in these statutes authorizing suits against the Trustees. We find no statute dealing with the Coach or the Athletic Director of the University.

6 President Carlson testified that the Coach had said at the meeting with the Trustees the night before the game that he had called the rule against protests and demonstrations to the attention of the team at least three other times in the last year, * * * 'the reason being that he felt that this would have an adverse effect upon team unity, upon their grades, if they were involved in protests and such things as this. This was at spring practice, at the end of spring practice in 1969.' There also was testimony at the hearing on the application for the restraining order by he University President on the football coaching rule which included the statement that 'Coach Eaton said that in order to maintain proper discipline on the football team he had certain rules and regulations, and this was one of them.'
The order of the District Court included findings that '* * * the Board further found that the football coaching rule was imposed for disciplinary purposes looking to the unity of the football team and that the plaintiffs had been well aware and had full knowledge of the existence of the coaching rule * * *' 310 F.Supp. at 1347. We are not persuaded that these statements and findings so established that there was or would have been any material disruption of class work, substantial disorder of invasion of the rights of others as to justify a summary judgment against the plaintiffs. Tinker v. Des Moines School District, supra, 393 U.S. at 513, 89 S.Ct. at 740.

7 As discussed below, the District Court considered matters beyond the pleadings so that the ruling must be viewed as a summary judgment

8 We note also plaintiffs' claim that the football coaching rule was unconstitutional for over-breadth and vagueness. The reason for the plaintiffs' dismissal from the team and the manner of the application of the rule are within the area of factual dispute, although the rule iteslf in broad terms was admitted by the defendants. Until the facts and circumstances surrounding the application of the rule to the plaintiffs are decided and the reasons for their dismissal determined, the claim of impingement on First Amendment rights by general prohibition against protests or demonstrations by the players may not be dismissed as wholly insubstantial. See Sword v. Fox, 317 F.Supp. 1055, 1062-1067 (W.D.Va.), and cases there cited

9  An affidavit submitted for plaintiffs stated that at the time of the meeting with the Trustees the plaintiffs had indicated they thought they were entitled to wear the armbands during the game, but that they had not planned to do so if the Coach refused to permit such action. This affidavit also stated that the plaintiffs had not said they would wear the armbands against the directions of the Coach or the Trustees if returned to the game 

10  Plaintiffs' brief suggests that instead it might be concluded that they were protesting against manifestations of racism that plaintiffs saw in BYU and its football team

The first 10th Circuit decision did not end the matter, and it came back for a second one, in which the court stated:

This appeal is a sequel to our earlier consideration of this controversy involving several Black athletes of the University of Wyoming football team. They were dismissed from the team following a dispute over their intentions to wear black armbands during a football game with Brigham Young University. After their dismissal they sought relief by this civil rights action, claiming violation of First Amendment rights.

In the prior appeal we affirmed in part, sustaining the dismissal of claims against the State of Wyoming and all damage claims, but reversed a summary judgment and dismissal of claims for equitable and declaratory relief as to other defendants, and remanded for further proceedings. 443 F.2d 422. After a trial to the court on these remaining claims for declaratory and injunctive relief, the trial court made findings of fact and conclusions of law in favor of the defendants and dismissed again. 333 F.Supp. 107. Essentially the court upheld the defendants' actions in dismissing the athletes from the team on the ground that the Federal and Wyoming Constitutions mandated complete neutrality on religious matters which would have been violated otherwise by the armband display expressing opposition to religious beliefs of the Church of Jesus Christ of Latter-Day Saints on racial matters.

The general circumstances of the controversy have been set out by the trial court and our earlier opinion and need not be repeated. We feel it important to discuss the facts in detail based on the trial record only in respect to two principal issues which will be treated.1 We believe the controlling issues on this appeal are as follows:

(1) whether findings of fact 14 and 15 made by the trial court, dealing with the purpose of the athletes in seeking to wear the armbands and the position they took thereon, are clearly erroneous;

(2) whether the determination by the Board of Trustees of the University refusing to permit the athletes to wear the armbands on the field during the game was a reasonable and lawful ruling or regulation under the principles of Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, and similar cases.

We do not treat certain additional propositions forcefully argued for the athletes on this appeal. Arguments are made that the football coaching rule against participation generally by the athletes in demonstrations was invalid. However, we feel that questions concerning the rule need not be decided. The original dismissal of the athletes by Coach Eaton for violation of the rule was not the end of the matter. Later the controversy was considered by the Trustees and President Carlson at a conference with the athletes and the athletic officials. It was found by the trial court that the decision of the Trustees to sustain the dismissal of the athletes was made after this conference during which the athletes insisted on the right to wear the armbands during the game. And it was further found that the Trustees' decision was made on the ground that permitting the wearing of the armbands would be in violation of the constitutional mandate requiring complete neutrality on religion.2 Therefore our decision focuses on the lawfulness of the Trustees' action.

Findings 14 and 15 and the purpose of the athletes in seeking to wear the armbands

The plaintiffs challenge findings 14 and 15 of the trial court, arguing that they are clearly erroneous under the test of United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.3

The plaintiffs first challenge the portion of finding 14 that there is no merit in the contention that one of the purposes of the armband display was protesting against "cheap shots" and name-calling by members of the Brigham Young team. There was testimony by plaintiffs Williams and Hamilton that they were protesting against such conduct by the BYU team; Governor Hathaway and defendants Carlson and Hollon also said the plaintiffs did complain at the meeting with the Trustees about such conduct of the BYU players. However, plaintiffs Williams and Hamilton also said that at various meetings they were protesting against racial policies, Williams referring to such policies of BYU and Hamilton to those of the Mormon Church. And there was testimony by several defendants that centered on the demand of the athletes to wear the armbands in the game to protest views of the Mormon Church. Viewing the record as a whole we cannot agree with this challenge to the findings.

The plaintiffs also say that there was error in the portion of finding 14 that all of the plaintiffs refused to play against Brigham Young University unless they could wear the armbands. And they argue also that finding 15 was in error in stating that all of the plaintiffs refused to play again for the University if defendant Eaton remained as coach. They say the proof fails to establish these facts as to all of the individual plaintiffs and that there was contrary proof. The evidence was in conflict. There was, however, testimony by Governor Hathaway and President Carlson about the discussions and conduct of the plaintiffs at the meeting which Governor Hathaway and President Carlson had separately with them which supports these findings. Defendant Pence's testimony also supports these findings.

The plaintiffs contend that we must make our own examination of the record and that we are not at liberty to accept the findings on such constitutional issues merely because we consider them not clearly erroneous. They rely on Guzick v. Drebus, 431 F.2d 594, 599 (6th Cir.), cert. denied, 401 U.S. 948, 91 S.Ct. 941, 28 L.Ed.2d 231. We are required of course to consider the record ourselves when findings of fact of the trial court are challenged. However, we have not treated findings made in cases involving constitutional rights differently from those in other civil cases. See e. g., Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990, 999, 1000 (10th Cir.), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728; Linebarger v. State of Oklahoma, 404 F.2d 1092 (10th Cir.), cert. denied, 394 U.S. 938, 89 S.Ct. 1218, 22 L.Ed.2d 470; Caldwell v. United States, 435 F.2d 1079 (10th Cir.); Brown v. Crouse, 425 F.2d 305 (10th Cir.); Carpenter v. Crouse, 389 F.2d 53 (10th Cir.).4

We believe that the test of Rule 52, F.R.Civ.P., applies here. "The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether 'on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed."' Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L. Ed.2d 129. The weighing of the conflicting evidence and the credibility of witnesses was for the trial court, and its findings will not be disturbed unless they are clearly erroneous. Rule 52(a) F.R.Civ.P.; Linebarger v. State of Oklahoma, supra at 1094, 89 S.Ct. 1218. We are satisfied that the record supports the challenged findings and that they are not clearly erroneous.

First Amendment principles under Tinker v. Des Moines Independent School District

Both plaintiffs and defendants rely on the principles stated in the Tinker case and similar decisions. The plaintiffs argue that they come within its bounds of freedom of expression recognized therein as applying to students in different places, including the playing field. 393 U.S. at 512, 513, 89 S.Ct. 733. On the other hand the defendants say that their actions were within the exceptions stated in the opinion. We feel the controlling guidelines from the Tinker case are the following:

"A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinion, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior-materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. * * *"

". . . The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom." [citations omitted]

393 U.S. at 512, 513, 89 S.Ct. at 740.

The trial court concluded that had the defendants, as governing officials of the University of Wyoming, permitted display of the armbands, their actions would have been violative of the First Amendment establishment clause and its requirement of neutrality on expressions relating to religion, citing School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844, and similar cases. The Court further grounded its conclusions on the provisions of the Wyoming Constitution guaranteeing the free exercise and enjoyment of religion and worship without discrimination or preference.

". . . The government is neutral, and, while protecting all [religious opinions and sects], it prefers none, and it disparages none." Id. at 215, 83 S.Ct. at 1567. Thus stemming from state and federal law there is strong support for a policy restricting hostile expressions against religious beliefs of others by representatives of a state or its agencies. We feel that the Trustees' decision was a proper means of respecting the rights of others in their beliefs, in accordance with this policy of religious neutrality.

The plaintiffs vigorously deny that there would have been state action or a violation of the First Amendment principles on religion by permitting the armband display. Without deciding whether approval of the armband display would have involved state action or a violation of the religion clauses, we are persuaded that the Trustees' decision was lawful within the limitations of the Tinker case itself. Their decision protected against invasion of the rights of others by avoiding a hostile expression to them by some members of the University team. It was in furtherance of the policy of religious neutrality by the State. It denied only the request for the armband display by some members of the team, on the field and during the game. In these limited circumstances we conclude that the Trustees' decision was in conformity with the Tinker case and did not violate the First Amendment right of expression of the plaintiffs. See Sword v. Fox, 446 F.2d 1091, 1097, 1098 (4th Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 534, 30 L.Ed.2d 547.

We do not base our holding on the presence of any violence or disruption. There was no showing or finding to that effect and the trial court's conclusions of law state that the denial of the right to wear the armbands during the game ". . . was not predicated upon the likelihood of disruption, although such a demonstration might have tended to create disruption." Instead the trial court referred only to the mandate of complete neutrality in religion and religious matters as the basis for the court's ruling.

We hold that the trial court's findings and this record sustain the Trustees' decision as lawful, made for the reasons found by the trial court, as a reasonable regulation of expression under the limited circumstances involved, in accord with the principles of the Tinker case on free speech.

Affirmed.

1  There is substantial discussion by both briefs on the question whether the plaintiffs would, in any event, be barred from reinstatement to the team by rules of the NCAA and the Western Athletic Conference. This question need not be decided in view of the conclusions we reach

2  This conference was attended personally by the Governor, President Carlson and several Trustees. Except for two Trustees who were unavailable, the remaining Trustees participated by a telephone conference call arrangement which permitted them to hear the discussions and to express their views. At different times the plaintiffs, and also the Coach and the Athletic Director, discussed the matter with the Board. There is no claim by the plaintiffs that there was a denial of procedural due process in the various proceedings by the University officials or the Trustees

3  Findings of fact 14 and 15 were as follows: "14. That taking all of the evidence and facts adduced by the parties into consideration, the Court finds that there is no merit in the contention raised by the Plaintiffs in their complaint filed herein that one of the purposes of the black armband display was that of protesting against the alleged cheap shots and name-calling charged to members of the Brigham Young University football team; on the contrary, the Court finds that such allegation is without merit and that the sole and only purpose in the armband display was that of protesting against alleged religious beliefs of the Church of Jesus Christ of Latter-Day Saints, commonly known as the Mormon Church, and Brigham Young University, which the Plaintiffs considered one and the same, and the Court further finds that each of the Plaintiff football players refused to participate in the football game with Brigham Young University as members of the football team of the University of Wyoming unless they were permitted to demonstrate against the religious beliefs of the Mormon Church by wearing black armbands upon the playing field.
"15. That, taking all of the evidence and facts adduced by the parties into consideration, the Court finds that each of the Plaintiffs refused to play football as a member of the University of Wyoming football team unless and until the Defendant, Lloyd Eaton, was removed from his position as Head Football Coach of the Universty of Wyoming."

4  In some cases the Supreme Court has, of course, reviewed the record where constitutional rights were involved, reaching a conclusion different from that of a state court where there was compelling evidence of a constitutional wrong. See Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697; Blackburn v. Alabama, 361 U.S. 199, 209, 80 S.Ct. 274, 4 L.Ed.2d 242. We cannot agree that such cases indicate that we should depart from Rule 52 standards in reviewing findings on a record such as this.

While UW's football fortunes declined after this event, amazingly the Cowboys defeated the Cougars on October 18, 1969, in spite of the walkout.  Eaton resigned as coach in 1971, after a series of defeats dating back to the 1969 event.  Ten of the Fourteen graduated from university.  Four went on to play in the National Football League.  One became a prominent educational figure in Casper.  The Mormon church changed its doctrine on this issue in 1978.

Some Gave All: The Black 14, University of Wyoming, Laramie Wyoming

Some Gave All: The Black 14, University of Wyoming, Laramie Wyoming

This is a monument to The Black 14 in the University of Wyoming's Student Union.

The Black 14 were fourteen University of Wyoming football players who, in 1969, wanted to wear black armbands during the University of Wyoming v. Brigham Young football game. The action was intended to protest the policy of the Mormon church in excluding blacks from leadership roles in their church.  Coach Eaton, the UW football coach at the time, dismissed all fourteen players prior to the game, ending their football careers at UW and, at least in some cases, simply ending them entirely.

 

The event was controversial at the time, and to a lesser degree, has remained so.  Generally, in most of Wyoming, Coach Eaton was supported, rather than the players, which doesn't mean that the players did not have support.  As time has gone on, however, views have changed and generally the players are regarded as heroes for their stand.  Views on Eaton are qualified, with some feeling he was in the wrong, and others feeling that he was between a rock and a hard place and acted as best as

he could, even if that was not for the best.

It is indeed possible even now to see both sides of the dramatic event.  The players wanted to wear black armbands in protest of the Mormon's policy of not allowing blacks to be admitted to the Mormon priesthood and therefore also excluding them from positions of leadership in the Mormon church.  This policy was well know in much of Wyoming as the Mormon theology behind it, which held that blacks were descendant of an unnatural union on the part of Noah's son Cain, resulted in black human beings.  This was unlikely to be widely known, however, amongst blacks at the University of Wyoming, most of whom (but not all of which) came from outside of the state.  A week or so prior to the UW v. BYU game, however, Willie Black, a black doctoral candidate at UW who was not on the football team, learned of the policy.  Black was head of the Black Students Alliance and called for a protest.  The plan to wear armbands then developed.

The protest, therefore, came in the context of a civil rights vs. religious concepts background, a tough matter in any context.  To make worse, it also came during the late 60s which was a time of protest, and there had been one against the Vietnam War just days prior to the scheduled game. Following that, Eaton reminded his players of UW's policy against student athletes participating in any demonstration, a policy which raises its own civil liberties concern. The players went ahead with their plans and Eaton removed all of them from the team.

Looked at now, it remains easy to see why Eaton felt that he had to act, while also feeling that he acted much too harshly.  Not everyone agrees with this view by any means, however.  Many, but a declining number, still feel Eaton was right.  A much larger number feel he was definitely wrong.  Few hold a nuanced view like I've expressed.  Even those who felt that Eaton was right often admire the protesting players, however. 

Anyway its looked at, the Black 14 are now a definite part of Wyoming's legacy as The Equality State, even if most of them were not from here (at least one, and maybe more, were).  This year at Wyoming History Day, a statewide high school history presentation competition, which had the theme of "taking a stand", they were the subject of one static display and two video presentations.  They may be more well remembered now than at any time since the late 1970s, and this memorial in the student union certainly contributes to that.

1969  The Milward L. Simposn Fund created at the University of Wyoming "to further, foster and advance education and learning in the field of political science at the University of Wyoming."

1973 Arab oil-producing nations announced they would cut back oil exports to Western nations and Japan resulting in the Oil Embargo.

1974  An earthquake swarm occurred in Yellowstone.

2014.   Judge Scott Skavdahl issued his written ruling apparently striking down Wyoming's law on marriage, which of course speaks in terms of male and female (it was written in the 1890s) as unconstitutional.  The ruling came only one day after the oral arguments and in advance of his declaration that the ruling would be issued on Monday.  The apparent impact of the ruling (I haven't read the decision) is to hold that Wyoming must recognize same gender marriages and issue marriage licenses accordingly, although given the text of the Wyoming statute, a reasonable question could be raised if the door wouldn't be slightly open to argue that the decision might actually invalidate any new marriages until such time as a new law was drafted, although nobody seems to be arguing that this is the implicit result.  The decision goes into effect on Thursday of this week, as time was built in to allow the state to appeal. The state has indicated that it will not appeal.