Patrick J. Whaley and Mary L. Whaley v. Flitner Limited Partnership, a Wyoming Limited Partnership , 395 P.3d 653 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 59
APRIL TERM, A.D. 2017
May 17, 2017
PATRICK J. WHALEY and MARY L.
WHALEY,
Appellants
(Petitioners),
v. S-16-0141
FLITNER LIMITED PARTNERSHIP, a
Wyoming Limited Partnership,
Appellee
(Respondent).
Appeal from the District Court of Big Horn County
The Honorable William J. Edelman, Judge
Representing Appellants:
Barry V. Crago, Crago Law Offices, P.C., Buffalo, Wyoming; Tucker J. Ruby,
Buffalo, Wyoming; Greg L. Goddard, Goddard and Vogel, P.C., Buffalo,
Wyoming. Argument by Mr. Ruby.
Representing Appellee:
Randy L. Royal, Randy L. Royal, P.C., Greybull, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] Patrick and Mary Whaley (the Whaleys) sought the establishment of a private road
along the upper portion of Black Mountain Road in Big Horn County. The Big Horn
County Board of County Commissioners (the Board) established a private road along the
lower portion of Black Mountain Road, a route which the Whaleys contend was
procedurally barred and is illogical, unproductive, and uneconomic. The Whaleys appeal
and we affirm.
ISSUES
[¶2] We rephrase the issues as follows:
1. Were the viewers and appraisers authorized to consider an alternate route that
was not located on land owned by parties originally identified by the Whaleys in their
petition for a private road?
2. Was the establishment of Lower Black Mountain Road as a private road
supported by substantial evidence?
FACTS
[¶3] The Whaleys own property east of Shell in Big Horn County, Wyoming. Their
property has been in the Whaley family since it was homesteaded, over 100 years ago,
and the Whaleys acquired it in 1988. The Whaley property is surrounded on all sides by
private land and has no legally enforceable outlet to a public road. Black Mountain Road
has historically been used to access the Whaleys’ and other landowners’ property in the
area. All travel on Black Mountain Road is by permission of the various landowners
along the road, but the landowners do not have legally enforceable access to their
property. The Whaleys and their family used both the upper and lower portions of Black
Mountain Road until the fall of 2009, when Flitner Limited Partnership locked a gate on
the upper portion of the road, closing off access along the upper route to the Whaleys’
property.
[¶4] Black Mountain Road begins at Forest Service Road 17, heads south and west and
down in elevation, until it connects with BLM Road 11151 on the west. For the purposes
of this litigation, the road can be divided into two parts: the eastern portion of the road,
leading from Forest Service Road 17 west to the Whaleys’ property (Upper Black
Mountain Road), and the western portion, which heads east from BLM Road 1115 to the
Whaleys’ property (Lower Black Mountain Road).
1
While the parties, the viewers and appraiser, and the Board all refer to this road as BLM Road 115, the
maps label it as Road 1115. In this opinion, we refer to the road as BLM Road 1115 or Road 1115.
1
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[¶5] The two portions of the road differ significantly. Lower Black Mountain Road has
not been maintained and is rugged, eroded, steep, and difficult to travel. Access via
Lower Black Mountain Road begins in the spring and lasts later into the fall. By contrast,
Upper Black Mountain Road is smoother, without big drop-offs, and has been maintained
by logging operations on various landowners’ properties and by the Flitners. Upper
Black Mountain Road, however, opens much later in the summer, sometimes not until
mid-July, and closes earlier in the fall.
[¶6] On April 7, 2011, the Whaleys applied for private road access to their property
along Upper Black Mountain Road, through property owned by Flitner Limited
Partnership, North Woods Capital Partnership, LP (North Woods), and L & M Good
Partnership. After a hearing, the Board concluded that the Whaleys “did not act in good
faith” because they failed to explore “the possibility of the establishment of a private road
on the westerly or lower portion of the Black Mountain Road[.]” The Whaleys appealed
and the district court reversed the Board’s decision, finding it was not supported by
substantial evidence; the Whaleys “do not have legally enforceable access to their
property; and they brought their application for a private road in good faith, with a
request for a route that is reasonable and convenient.” The district court remanded the
case to the Board, directing it to proceed with the application and to appoint viewers and
appraisers pursuant to Wyo. Stat. Ann. § 24-9-101(h) (LexisNexis 2011).
[¶7] The viewers and appraisers determined that Eleven Bar One might be affected by
an alternate route, in addition to the property owners already notified, and directed the
Big Horn County Clerk to provide notice to Eleven Bar One prior to their site visit. That
notice was provided on July 11, 2014. On August 13, 2014, the viewers and appraisers
conducted an on-site inspection and then submitted their report to the Board. The
viewers and appraisers recommended
using the lower road designated Black Mountain Road. This
road has been used in the past and is presently used by the
affected parties and other property owners to access their
lands.
With the understanding that an easement be granted to
the Flitner[s] for unrestricted access across the Whaley
property; the Flitner[s], in return, must grant an easement to
the Whaley[s] that they can cross their lands.
These easements pertain to that section of existing
road beginning at the east end of BLM road [1115], which is
a public road and terminating at the east boundary of the
Whaley property.
3
The Board issued its findings accepting the viewers’ and the appraisers’ recommendation
and ordering that a private road be established on Lower Black Mountain Road from
BLM Road 1115 through Eleven Bar One, Flitner Limited Partnership, and Flitner Ranch
Limited Partnership properties, and through the Whaleys’ property to its border with the
John W. Stouffer Trust #2 (North Woods) property. The Board also determined that no
damages should be awarded to the property owners and required the Whaleys to supply a
legal description of a thirty-foot-wide private road along the Lower Black Mountain Road
route. Finally, the Board ordered that the “Affected Parties herein, namely Eleven Bar
One, Flitner Limited Partnership, Flitner Ranch Limited Partnership, and the John W.
Stouffer Trust #2 [North Woods], their successors and assigns, shall be granted an
easement to use the private road . . . as a condition of the establishment” of the road.
[¶8] The Whaleys sought review in the district court. After a hearing, the district court
issued its order affirming the portion of the Board’s order establishing a private road
along Lower Black Mountain Road, but reversing the Board’s grant of easements over
the newly established road. The Whaleys appealed.
STANDARD OF REVIEW
[¶9] Review of the Board’s decision regarding an application for a private road under
Wyo. Stat. Ann. § 24-9-101 is subject to the Wyoming Administrative Procedures Act.
We are in the same position as the district court, and our review is governed by Wyo.
Stat. Ann. § 16-3-114(c). In re Private Rd. ex rel. Cross, 2013 WY 79, ¶ 8, 304 P.3d
932, 934 (Wyo. 2013); Mayland v. Flitner, 2001 WY 69, ¶ 10, 28 P.3d 838, 843 (Wyo.
2001). Section 16-3-114(c) requires us to review the entire record and:
(ii) Hold unlawful and set aside agency action, findings and
conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law;
....
(C) In excess of statutory jurisdiction, authority or
limitations or lacking statutory right;
. . . or
(E) Unsupported by substantial evidence in a case
reviewed on the record of an agency hearing provided by
statute.
Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2015).
[¶10] Questions of law are reviewed de novo. Voss v. Albany Cty. Comm’rs, 2003 WY
94, ¶¶ 9-10, 74 P.3d 714, 718-19 (Wyo. 2003) (Voss I). In reviewing factual issues, we
determine if substantial evidence in the record supports the agency’s decision. Mayland,
4
2001 WY 69, ¶ 10, 28 P.3d at 843. Substantial evidence is “relevant evidence which a
reasonable mind might accept in support of the conclusions of the agency.” McTiernan v.
Scott, 2001 WY 87, ¶ 11, 31 P.3d 749, 754 (Wyo. 2001); see also Reidy v. Stratton Sheep
Co., 2006 WY 69, ¶ 7, 135 P.3d 598, 603 (Wyo. 2006).
DISCUSSION
I. Were the viewers and appraisers authorized to consider an alternate route that
was not located on land owned by parties originally identified by the Whaleys in
their petition for a private road?
[¶11] The private road statutes are the sole remedy for landlocked landowners to obtain
access to their property. Reidy, 2006 WY 69, ¶ 10, 135 P.3d at 603. We apply the 2011
version of the Wyoming private road statutes, Wyo. Stat. Ann. §§ 24-9-101 through 24-9-
104 (LexisNexis 2011), as the Whaleys brought their initial application in 2011. See
Mullinax Concrete Serv. Co. v. Zowada, 2012 WY 55, ¶ 11, 275 P.3d 474, 477 (Wyo.
2012) (determining that an amended statute for private road establishment does not apply
retroactively).
[¶12] Sections 24-9-101 through 24-9-104 allow landowners who have “no outlet to, nor
connection with a public road” to apply for a private road leading from their property to a
convenient public road. Wyo. Stat. Ann. § 24-9-101(a) (2011). The party applying for a
private road must first file an application with the board of county commissioners (the
board) and give written notice of the application to “the affected parties of all lands over
which” the road may pass. Wyo. Stat. Ann. § 24-9-101(b) (2011). After receiving
notice, each affected party may then provide notice to the board and the applicant of the
location of any alternate routes proposed by the affected party. Id. The board will then
schedule an initial hearing on the application. The applicant must then provide written
notice of that hearing to “all affected parties named in the original application, all
landowners affected by any alternative routes proposed . . . and any other landowners the
board believes may be affected by the application or by any alternative route which may
be considered by the board.” Wyo. Stat. Ann. § 24-9-101(e) (2011).
[¶13] At the hearing, the board initially determines whether the applicant has legally
enforceable access to his land. Wyo. Stat. Ann. § 24-9-101(c) (2011). If the board finds
that the applicant has no legally enforceable access, it appoints three disinterested
viewers and appraisers whose task it is “to locate and mark out a private road and
alternative routes as they deem appropriate, provided the location of the road shall not be
marked out to cross the lands of any affected party who was not given notice under
subsection (e) of this section.” Wyo. Stat. Ann. § 24-9-101(h) (2011). To accomplish
this task, the viewers and appraisers must meet on-site to view the proposed road. The
statute requires the viewers to “give notice in writing to the applicant and affected parties
of the lands through which the proposed road or any alternative road may pass, of the
5
time and place where the viewers will meet . . . .” Id. The viewers and appraisers must
“recommend the most reasonable and convenient route” and may “recommend specific
conditions that the board place on the road.” Id.
[¶14] The viewers and appraisers then submit a report containing their recommendations
to the board. Wyo. Stat. Ann. § 24-9-103(a) (LexisNexis 2011). After receiving that
report, the board is required to hold a second hearing. Id. “[A]ll affected parties having
an interest in the lands through which the proposed road or any alternative road may
pass” are to receive notice of the hearing so that they can “address the report.” Id. The
“board may either accept, reject or modify the report and recommendations. The board
shall select the most reasonable and convenient route for the access . . . .” Id.
[¶15] The Whaleys contend that viewers and appraisers are required by this statutory
scheme to locate the road within the lands designated in the applicants’ original notice
pursuant to § 24-9-101(e), and they do not have the authority to choose an alternative
route outside of those lands. The Whaleys argue that while viewers and appraisers are
not bound to choose the route requested by the applicants, the statute requires that they
locate the private road, including any alternate they propose, through the lands owned by
those originally notified in the action. The Whaleys point out that Eleven Bar One,
which owns property along Lower Black Mountain Road, was not given notice of their
application for a private road because it does not own land along Upper Black Mountain
Road, their proposed route. Thus, they argue that the alternative route selected by the
Board, Lower Black Mountain Road, was statutorily precluded because it crosses land
owned by Eleven Bar One, a landowner not originally notified.
[¶16] In support of this contention, the Whaleys rely on Goodman v. Voss, 2011 WY 33,
¶ 31, 248 P.3d 1120, 1129 (Wyo. 2011) (Voss III) where we stated that the applicant for a
private road
has the right to choose any reasonable and convenient route
for the proposed private road, and neither the Board nor
neighboring landowners can force the petitioner to accept an
illogical, uneconomic, and unproductive road. . . . That leads
to the logical conclusion that it is the petitioner who selects
the persons to be notified of the petition. In turn, that
process limits the possible locations for the road because the
viewers and appraisers must locate the road within the lands
of the property owners who were given notice. However, the
petitioner only selects the general location of the road; it is
the duty of the viewers and appraisers to establish the exact
location of the road so that it will do the least possible
damage to the land through which it passes.
6
(Emphasis added and internal quotation marks and citations omitted.) Voss III was the
third in a line of cases in which we considered a series of issues arising from the Voss’s
1999 application for a private road. See Voss I, 2003 WY 94, ¶ 5, 74 P.3d at 717
(determining necessity of private road and whether permissive use of BLM road for a
limited term and a conditional easement are sufficient to provide legally enforceable
access); Voss v. Goodman, 2009 WY 40, ¶ 3, 203 P.3d 415, 417 (Wyo. 2009) (Voss II)
(addressing district court’s jurisdiction to consider declaratory judgment action seeking a
declaration that the board acted without authority to grant temporary access to petitioners
for private road); Voss III, 2011 WY 33, ¶ 33, 248 P.3d at 1129 (determining that the
board’s extension of the road into Goodman’s property violated the private road statute
because it focused on damage to the petitioner’s property instead of damage to the
property taken for a private road).
[¶17] The 2011 statute indicates that initially the applicant selects the lands through
which the proposed private road will pass and provides notice to the owners of those
lands, the “affected parties.” Wyo. Stat. Ann. § 24-9-101(b) (2011). The language cited
by the Whaleys in Voss III goes farther, restricting the location of the private road to the
lands of property owners originally notified by the applicant. However, all three Voss
cases applied the 1985 private road statutes, which are substantially different than the
later versions of the statutes in that they granted the applicant for a private road more
control over the location of that road. See Voss III, 2011 WY 33, ¶ 30, 248 P.3d at 1128;
Voss II, 2009 WY 40, ¶ 13, 203 P.3d at 420; Voss I, 2003 WY 94, ¶ 17, 74 P.3d at 720.
[¶18] The 1985 statute required the applicant to provide notice to “the owner, resident
agent, or occupant of all lands over which the private road” may pass and directs the
viewers and appraisers to “give notice in writing to the owner, resident agent or occupant
of the lands over which the road is proposed to be laid of the time and place where the
viewers will meet . . . .” The statute then required the viewers “to locate and mark out a
private road in accordance with the application or in such other manner and location as
they deem appropriate, provided the location of the road shall not be marked out to
cross the lands of any person whose lands were not described in the application and
who was not given notice of the application.” 1985 Sess. Laws ch. 56 § 1 (Wyo. Stat.
Ann. § 24-9-101(1993)) (emphasis added). This statute “was dramatically changed in
2000, and, as a consequence, many of our cases that predate those amendments are not
reliable sources of authority with respect to cases initiated after March 14, 2000.” In re
Crago, 2007 WY 158, ¶ 5, 168 P.3d 845, 847 (Wyo. 2007); see also 2000 Sess. Laws ch.
88 §§ 1-3. This caution applies to the Voss line of cases.
[¶19] In Voss I, we commented:
Although the 1985 version of the law is controlling in
this case, it is informative in interpreting it that the legislature
in 2000 further limited an applicant’s ability to control the
7
location of a private road when it more expressly authorized
viewers to propose and commissioners to consider possible
alternatives to the route proposed by the petitioner,
joining additional landowners as parties if necessary. Wyo.
Stat. Ann. § 24-9-101 (LexisNexis 2001).
Voss I, 2003 WY 94, ¶ 17, 74 P.3d at 720. The relevant portions of the statute changed
little between 2000 and 2011. Compare Wyo. Stat. Ann. § 24-9-101(e), (h) (2001) and
2000 Sess. Laws ch. 88 § 1 with Wyo. Stat. Ann. § 24-9-101(e), (h) (2011).
[¶20] The 2011 version of the statute relied upon in Voss III has been amended to
instruct the viewers to “mark out a private road and alternative routes as they deem
appropriate, provided the location of the road shall not be marked out to cross the lands
of any affected party who was not given notice under subsection (e) . . . .” Wyo. Stat.
Ann. § 24-9-101(h) (2011). Subsection (e) requires written notice of the board’s hearing
be sent to “all affected parties named in the original application, all landowners affected
by any alternative routes proposed . . . and any other landowners the board believes
may be affected by the application or by an alternative route which may be considered
by the board.” Wyo. Stat. Ann. § 24-9-101(e) (2011) (emphasis added). In addition, the
statute requires the viewers and appraisers to notify “the applicant and affected parties of
the lands through which the proposed road or any alternative road may pass” of the
date and time of their site visit. Wyo. Stat. Ann. § 24-9-101(h) (2011) (emphasis added).
[¶21] In interpreting statutes, we first look to “the legislature’s intent as reflected in the
plain and ordinary meaning of the words used in the statute.” Rambo v. Rambo, 2017
WY 32, ¶ 8, 391 P.3d 108, 110 (Wyo. 2017) (citations omitted). The plain language of
the statute does not constrain the viewers’ and the appraisers’ or the board’s
consideration of a private road to only those lands originally identified by the applicant.
If the legislature had intended that result, it would not have provided affected landowners
the ability to suggest alternate routes and it would not have included notification of “all
landowners affected by any alternative routes” and “any other landowners the board
believes may be affected by the application or by an alternative route” as categories of
persons required to be given notice in addition to those named in the original application.
The 2011 version of the statute allows other parties to be given notice and to be included
in the process when alternative routes that cross their properties are identified,
even if those parties were not notified in the original applicant’s notice. Wyo. Stat. Ann.
§ 24-9-101(b), (e), and (h) (2011).
[¶22] The viewers and appraisers in this case were not prohibited from considering
Lower Black Mountain Road as an alternate route even though it crosses land owned by
Eleven Bar One, a party not originally identified by the Whaleys in their application for a
8
private road.2 With the exception of Eleven Bar One, all of the landowners along Lower
Black Mountain Road also own land along Upper Black Mountain Road. Thus, they
were notified by the Whaleys when they filed their original application and prior to the
initial hearing at which the Board was tasked with determining whether the Whaleys had
legally enforceable access.
[¶23] When the viewers and appraisers determined that Eleven Bar One might be
affected by an alternate route, Eleven Bar One received notice. That notice was provided
by the Big Horn County Clerk at the request of the viewers and appraisers prior to their
site visit, in compliance with Wyo. Stat. Ann. § 24-9-101(h). The record reveals that
Greg Flitner, who owns Eleven Bar One, received notice dated July 11, 2014 from the
Big Horn County Clerk by certified mail that his property might be affected by the
Whaleys’ private road application, that the viewers and appraisers were meeting on July
24, 2014 at 2:00 p.m. on the Whaleys’ land, and that he would continue to receive all
official correspondence regarding the application.3 Eleven Bar One received the notice
required and authorized by the 2011 statute.
II. Was the establishment of Lower Black Mountain Road as a private road
supported by substantial evidence?
[¶24] Wyo. Stat Ann. § 24-9-103(a) (2011) requires the board to “select the most
reasonable and convenient route for the access.” Here the Board was faced with a choice
between two existing routes and concluded that Lower Black Mountain Road “is the best
route for the private road.” The Whaleys contest this conclusion, and contend that the
Board was bound by the district court’s statement that Upper Black Mountain Road was
reasonable and convenient. They also assert that the Board’s selection of Lower Black
Mountain Road as the most reasonable and convenient is not supported by substantial
evidence, that the Board should have relied upon our decision in Mayland v. Flitner,
2001 WY 69, 28 P.3d 838 (Wyo. 2001), and that Lower Black Mountain Road cannot be
the “most reasonable and convenient route” because it is illogical, uneconomic, and
unproductive.
[¶25] The Board made the following relevant findings of fact:
2
At the time of the initial application, it appears that North Woods owned the Eleven Bar One property.
It is unclear exactly when the property was transferred from North Woods to Eleven Bar One, but that
transfer must have occurred prior to December 2, 2014, the date of the Board’s findings because in those
findings the Board indicated that “Lower Black Mountain Road crosses . . . property previously owned by
North Woods Capital Partnership (Stouffers) and now owned by Eleven Bar One (Greg Flitner).”
3
Also on July 11, 2014, the Big Horn County Clerk notified counsel for the Whaleys of the viewer and
appraiser’s meeting and that Greg Flitner had been identified as an additional party “with potential
interest.”
9
7. Access to the Upper Black Mountain Road from
U.S. Forest Service Road 17 is oftentimes limited to use from
mid-June through early November because of snow or wet
road conditions. Often the Forest Service will close the road
between November and June to prevent damage to it.
Testimony of all witnesses; Exhibit A, B.
8. The Lower Black Mountain Road, which
accesses Applicants’ property on its westerly side, is typically
open for at least eight months of the year, sometimes more
depending on weather. It is always open longer than Upper
Black Mountain Road. Testimony of all witnesses.
9. Applicant MARY L. WHALEY testified . . .
that she believed that because the quality of the Upper Black
Mountain Road was so much better than the Lower Black
Mountain Road that the Upper Black Mountain Road would
be a more convenient roadway. Testimony of Mrs. Whaley.
10. The Lower Black Mountain Road is difficult to
travel. It is largely unmaintained, steep, and with numerous
hazards along the way. Testimony of all witnesses.
11. The Lower Black Mountain Road crosses public
lands managed by the Bureau of Land Management and
owned by the State of Wyoming. Neither the BLM nor the
State of Wyoming maintains the road. Testimony of M[r]s.
Whaley, Michael Whaley, Keith Neustel.
12. If access is available off of the Forest Service
Road, the Upper Black Mountain Road is in superior
condition to the Lower Black Mountain Road. Testimony of
M[r]s. Whaley, Mr. Whaley, Mr. Neustel, Tim Flitner.
However, the upper portion is less rocky with a soil more
prone to rutting and scarring. Testimony of Mr. Flitner.
13. The property through which the Black
Mountain Road passes is used primarily for trailing livestock
and recreation. Testimony of all witnesses.
The Board went on to conclude:
The viewers and appraisers submitted a rather brief
report to the Commissioners, stating that the Lower Black
Mountain Road has been used in the past and is presently
being used by the Affected Parties and other property owners
to access property along the road. This is a significant and
undisputed fact.
10
A determination of which route is more convenient
must be based at least in part upon when the alternate roads
would be available to use. The Lower Black Mountain Road
would be open for use a greater part of the year than the
Upper Black Mountain Road would be, given the higher
elevation and corresponding precipitation at the location
where the Forest Service Road and the Upper Black Mountain
Road are located.
The Commissioners accept the determination made by
the viewers and appraisers and their conclusion that the
Lower Black Mountain Road is the best route for the private
road.
A. Law of the Case
[¶26] We first examine the Whaleys’ claim that the district court ruled on the issue of a
reasonable and convenient route in its September 20, 2013 decision letter. In that letter
the court concluded that “[t]he evidence in the record supports a finding that [applicants]
do not have legally enforceable access to their property, and they brought their
application for a private road in good faith, with a request for a route [Upper Black
Mountain Road] that is reasonable and convenient.” The Whaleys argue that based upon
this finding, the “case should be over.”
[¶27] Although they cite no authority in support of their argument, we assume that the
Whaleys are referring to principles of law of the case or collateral estoppel. The law-of-
the-case doctrine “generally provides that ‘when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same
case.’” Musacchio v. United States, --- U.S. ---, ---, 136 S. Ct. 709, 716, 193 L. Ed. 2d 639
(2016) (quoting Pepper v. United States, 562 U.S. 476, 506, 131 S. Ct. 1229, 1250, 179
L. Ed. 2d 196 (2011)). “Similarly, collateral estoppel is a preclusion doctrine that bars the
relitigation of previously litigated issues.” Ultra Res., Inc. v. Hartman, 2015 WY 40,
¶ 59, 346 P.3d 880, 901 (Wyo. 2015). Both doctrines require a definitive decision by the
court on the particular issue before they will apply. See id. at ¶ 64, 346 P.3d at 902
(rejecting application of law of the case and collateral estoppel because the district court
had not ruled on the issue).
[¶28] The question of whether the Whaleys’ proposed route was a reasonable one was
not before the district court in the 2013 decision. The issues addressed were whether the
Whaleys filed their application in good faith and whether their property was landlocked.
Because the district court never decided the question of whether the proposed private
road was reasonable or convenient, collateral estoppel and law of the case do not apply.
11
B. Substantial evidence
1. Whaleys’ contention that Lower Black Mountain Road is illogical,
uneconomic, and unproductive
[¶29] The Whaleys assert that the Board’s conclusion that Lower Black Mountain Road
is the “most reasonable and convenient route” is not supported by substantial evidence
because it is illogical, uneconomic, and unproductive. We have refused to require a
landlocked property owner to choose a “wholly illogical, uneconomic, and unproductive
road . . . .” Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 290 (Wyo. 1991). The
Whaleys complain that the Board disregarded the “overwhelming weight of the testimony
showing that . . . [it] requires tens to hundreds of thousands of dollars to make [Lower
Black Mountain Road] useable . . . .” The only evidence in the record concerning the
cost of the road was given by the Whaleys’ expert, Keith Neustel. Mr. Neustel’s
testimony regarding the economic feasibility of the road amounted to his statement that it
would “probably” cost “tens of thousands of dollars, if not hundreds of thousand]s].”
The Board did not give any weight to this evidence. The Board has wide latitude in
determining the weight to be given to testimony and Mr. Neustel’s testimony itself
provides a valid reason for the Board’s failure to give it weight: he had not “really put[] a
pencil to it.” See In re Greene, 2009 WY 42, ¶ 34, 204 P.3d 285, 295 (Wyo. 2009).
[¶30] Other evidence regarding the economics and productivity of the road includes the
testimony of Terry Meuller and Steve Cannady, local ranchers who run livestock in the
same area. Both of these witnesses provided evidence supporting the conclusion that
Lower Black Mountain Road is more economic and productive than Upper Black
Mountain Road. Mr. Meuller runs livestock on several sections of land in the area and
testified that for livestock, use of Lower Black Mountain Road is “the only option we
have.” Restrictions imposed by the weather would not allow access early enough in the
spring if he had to come in from the top. He testified that he begins mending fence in
May and it can be the middle of July before he can get in using Upper Black Mountain
Road. Likewise, early fall snow can cut off access from the top before it’s time to take
cattle off the land. Mr. Cannady agreed with Mr. Meuller that if he had only one option,
he would pick Lower Black Mountain Road.
[¶31] Based upon our review of all of the evidence, we cannot agree that the choice of
Lower Black Mountain Road is illogical, uneconomic, and unproductive. Substantial
evidence, “relevant evidence which a reasonable mind might accept in support of the
conclusions of the agency,” supports the opposite conclusion. McTiernan, 2001 WY 87,
¶ 11, 31 P.3d at 754. That is, although the Lower Black Mountain Road “is difficult to
travel,” given the alternative it is logical, economic, and productive.
12
2. Whaleys’ contention that Mayland v. Flitner compels the conclusion that
Lower Black Mountain Road is not the most reasonable and convenient
route
[¶32] We now turn to the Whaleys’ suggestion that the Board, the district court, and this
Court should rely upon Mayland v. Flitner, 2001 WY 69, 28 P.3d 838 (Wyo. 2001), and
its discussion of Black Mountain Road to conclude that Lower Black Mountain Road is
not the most reasonable and convenient route. That case concerned a private road
application brought by David Flitner (not a party to this action) for a road that crossed
Mayland’s property and connected with Snowshoe Pass, a public road. Mayland claimed
that Flitner’s application was brought in bad faith because he directed an employee to
drive “equipment off the mountain via Black Mountain Road and, in that process, to
obstruct the road and make it impassable,” and he failed to evaluate Black Mountain
Road as an alternative route. Mayland also argued that the proposed road was not
“necessary” because Flitner had access via Black Mountain Road. Id. at ¶¶ 17, 20, 28
P.3d at 845, 846. In the course of examining these issues, we addressed evidence
concerning the lower portion of Black Mountain Road.
[¶33] A great deal of our discussion pertained to the private nature of Black Mountain
Road, because that impacted whether Flitner already had legally enforceable access to his
land, making a private road unnecessary. Id. at ¶¶ 23-28, 28 P.3d at 847-48. We did,
however, comment on the evidence regarding the condition of the road. Id. at ¶¶ 21, 28,
28 P.3d at 846, 848. Flitner “believed that road was in unsatisfactory condition to
provide consistent and practical access to his property.” Id. at ¶ 21, 28 P.3d at 846. We
concluded that “[s]ubstantial evidence elicited during the hearings established Black
Mountain Road was not a consistently viable route of access to Mr. Flitner’s property. It
was in poor condition and, as reflected in the BLM letter, had not been consistently
maintained.” Id. at ¶ 28, 28 P.3d at 848.
[¶34] Mayland concerned an application for an entirely different private road in 1995,
sixteen years before the application was brought in this case. The factors examined by
the Mayland board and this Court on review were different because in Mayland the
primary question was necessity, not a choice between two alternate routes. Moreover,
Mayland considered access on a different proposed route, the Mayland/Snowshoe Pass
route. Id. at ¶ 28, 28 P.3d at 848. In this case, the question of necessity is not at issue
and the Mayland/Snowshoe Pass route has not been proposed as an option. Mayland
does not persuade us that under the facts of this case the Board’s decision that Lower
Black Mountain Road is the most reasonable and convenient route was unsupported by
substantial evidence.
13
3. Whaleys’ contention that the Board’s conclusion that Lower Black
Mountain Road is the most reasonable and convenient route is not
supported by substantial evidence
[¶35] We look to the record in this case to determine whether the Board’s conclusion
was supported by substantial evidence. In re Crago, 2007 WY 158, ¶ 11, 168 P.3d at
850. The evidence presented to the Board supporting the Whaleys’ request for access via
Upper Black Mountain Road included testimony from Mary Whaley, Mike Whaley,
Patrick Whaley, and Loren Good. Testimony from Tim Flitner, Mr. Meuller and Mr.
Cannady supported access via Lower Black Mountain Road.
[¶36] Mary Whaley testified that while they have run their cattle up and down Lower
Black Mountain Road using four-wheel-drive trucks, four-wheelers, horses, and on foot,
they have used Lower Black Mountain Road to access their property 5 percent of the time
and Upper Black Mountain Road 95 percent of the time. Mrs. Whaley and Mike Whaley,
her son, explained that they cannot safely get panel wagons or horse trailers needed to run
their cattle operation up or down the Lower Black Mountain Road. Mrs. Whaley stated
that Lower Black Mountain Road “has deteriorated over the last few years” and to travel
it you need a four-wheel drive pickup, although most people use ATVs. Loren Good
agreed, describing the road from the bottom as “hardly a trail” and as providing good
access “[i]f you’re on horseback or four-wheeler.” Mrs. Whaley explained that Upper
Black Mountain Road is “not a highway, but it’s a much better road.” It does not have
big drop-offs or big bumps. Mike Whaley testified that he has never seen anyone pull a
horse trailer up Lower Black Mountain Road, and that if they did, it would tear up the
trailer. Patrick Whaley, Mary Whaley’s husband, and Mr. Good both testified that they
would not take a trailer up Lower Black Mountain Road.
[¶37] In contrast, Tim Flitner testified that Lower Black Mountain Road is a better
option than the upper portion of the road. He has traveled the road “[h]undreds, possibly
thousands” of times. He described pulling flatbed trailers loaded with water and fencing
equipment up Lower Black Mountain Road. Mr. Flitner also testified regarding the
historic use of the road, explaining that the Whaleys “always drove their cattle and
initiated any sort of work from the bottom.” Mr. Flitner also explained that the Forest
Service periodically closes Forest Service Road 17, the entry point for Upper Black
Mountain Road. In 2011, Upper Black Mountain Road opened in late June or July, its
condition was “marginal” until after the first week of July, and then it became impassable
in early October. He also testified that the muddy nature of Upper Black Mountain Road
makes it impassable and susceptible to the formation of ruts and scars.
[¶38] Mr. Meuller testified that he has pulled sheep wagons and a stock trailer over
Lower Black Mountain Road. Mr. Cannady testified that he has used Black Mountain
Road “[p]robably [a] couple hundred” times and has hauled sheep wagons, pickup trucks,
and a two-horse trailer up Lower Black Mountain Road. Mr. Cannady also explained that
14
when the road is wet, Lower Black Mountain is preferable because it does not have as
much mud as the top portion of the road.
[¶39] In Reidy v. Stratton Sheep Co., 2006 WY 69, 135 P.3d 598 (Wyo. 2006), we
considered a similar fact situation. Reidy concerned whether a private road was
necessary, not whether the board’s conclusion was supported by substantial evidence, the
issue here. Nevertheless, Reidy is instructive. There, the party applying for a private
road had access via a less desirable Forest Service road that connected directly to his
property. He claimed that a private road over a neighboring landowner’s property was
necessary because he could not haul a semi-truck over the Forest Service road. We held
that he had not established necessity, even though the Forest Service road was arguably
inaccessible by semi and was narrow and had sharp curves. We noted that “[d]espite a
difference of opinion concerning the suitability of the proposed private road for semi-
truck traffic, . . . Stratton can use a pickup and trailer to haul its cattle to [its property]
via” the Forest Service road. Id. at ¶ 36, 135 P.3d at 611.
Simply because one landowner would prefer to use his or her
property in a certain manner and a different access would
facilitate that preference does not mean a private road is
necessary. Stratton did not establish it was substantially
inconvenienced . . . by being required to use the Forest
Service road instead of the private road.
Id.
[¶40] Wyo. Stat. Ann. § 24-9-103(a) (2011) requires the Board to “select the most
reasonable and convenient route for the access . . . .” In its consideration of which of the
two routes was the most reasonable and convenient, the Board was required to
“determine relevancy, assign probative value, and ascribe the relevant weight given to the
evidence presented . . . .” In re Vandre, 2015 WY 52, ¶ 19, 346 P.3d 946, 952 (Wyo.
2015). We recognize that this was a close call and that it would have been entirely
possible for the Board to conclude that Upper Black Mountain Road was the most
reasonable and convenient route. However,
the possibility of drawing two inconsistent conclusions from
the entire record does not mean that the conclusion drawn by
the administrative agency is not supported by substantial
evidence. Even where this court, after reviewing the record,
arrives at a different conclusion, the court cannot substitute its
judgment for that of the agency’s as long as the agency’s
conclusion is supported by substantial evidence.
McTiernan, 2001 WY 87, ¶ 11, 31 P.3d at 754-55.
15
[¶41] The Board considered the condition of the roads, the length of time the roads are
open, the use of the property through which the roads pass, and which road would cause
the least damage to property over which it passes in determining which road is the most
reasonable and convenient. The Board recognized that Lower Black Mountain Road is
difficult to travel, but concluded that a more reasonable and convenient option allows
access for a greater part of the year. The Board also placed great emphasis on the fact
that Lower Black Mountain Road has been used by the Whaleys and other property
owners to access their property. In the end, the Board concluded that Lower Black
Mountain Road was the most reasonable and convenient route. After our review of the
record, we find that this conclusion was supported by substantial evidence.
CONCLUSION
[¶42] The viewers and appraisers were authorized to consider Lower Black Mountain
Road as an alternate route even though it was located on land owned by Eleven Bar One,
which was not originally notified by the applicants. The Board’s conclusion that Lower
Black Mountain Road was more reasonable and convenient than Upper Black Mountain
Road was supported by substantial evidence.
16