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Whaley v. Flitner Limited Partnership

Supreme Court of Wyoming

May 17, 2017

PATRICK J. WHALEY and MARY L. WHALEY, Appellants (Petitioners),
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.

          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.


         [¶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?


         [¶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 1115[1] 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).

         (Image Omitted)

         [¶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.

         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.


         [¶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 ...

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