AVISTA CORP. INC. v. WOLFE

No. 07-35321.

549 F.3d 1239 (2008)

AVISTA CORPORATION INC., Plaintiff-Appellant, v. Dorrien H. WOLFE; Diane Larson; Leslie Rickey; Sean M. Stephens; James R. Doyle; Bonnie M. Sharp; Ronald Gene Sharp; Ronald Scott Sharp; Gregory Stewart Sharp; Sanders County, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Submission deferred August 11, 2008.

Resubmitted December 11, 2008.

Filed December 11, 2008.


Attorney(s) appearing for the Case

Christian T. Nygren, Giovanna M. McLaughlin, Milodragovich, Dale, Steinbrenner & Nygren, Missoula, MT, for appellant Avista Corp., Inc.

Gregory G. Schultz, Law Offices of Gregory Schultz, Missoula, MT, for appellees Dorrien H. Wolfe, Diane Larson, Leslie Rickey, Sean M. Stephens, James R. Doyle, Bonnie M. Sharp, Ronald Gene Sharp, Ronald Scott Sharp, and Gregory Stewart Sharp.

Robert L. Zimmerman, Thompson Falls, MT, for appellee Sanders County.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges.


THOMAS, Circuit Judge:

This appeal presents the question of whether a court may retroactively declare a railroad right of way abandoned under the Abandoned Railway Right of Way Act. We conclude that the Act does not permit a nunc pro tunc abandonment declaration.

I

The storied Clark Fork River in Montana was formed from floods left by the last ice age and named by Meriwether Lewis during the expedition...

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