PATRICK J. WHALEY and MARY L. WHALEY, Appellants (Petitioners),
FLITNER LIMITED PARTNERSHIP, a Wyoming Limited Partnership, Appellee (Respondent).
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.,
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
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
2. Was the establishment of Lower Black Mountain Road as a
private road supported by substantial evidence?
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.
Black Mountain Road begins at Forest Service Road 17, heads
south and west and down in elevation, until it connects with
BLM Road 1115 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
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.
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).
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
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 , which is a
public road and terminating at the east boundary of 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.
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.
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 ...