Bush Land Dev. Co. v. Crook Cnty. Weed & Pest Control Dist.

• Decision Date: 03 February 2017
• Docket Number: S-16-0149
• Citation: 2017 WY 12,388 P.3d 536
• Parties: Bush Land Development Company, A Wyoming Corporation, and Victoria Bush, as the president and director of Bush Land Development Company, and in her individual capacity, Appellants (Plaintiffs), v. Crook County Weed & Pest Control District, Crook County Weed & Pest Control District Board of Directors, Randall Otwell, in his official capacity, Lee Hauber, in his official capacity, Leroy Curren, in his official capacity, David Moline, in his official capacity, Frank Hawken, in his official capacity, Crook County Weed & Pest Control District Supervisor, Bob Gilbert, in his official and individual capacities, Chase Wadley, in his official and individual capacities, Gavin Holland, in his official and individual capacities, and Kirk Broderson, in his official and individual capacities, Appellees (Defendants).
• Court: Wyoming Supreme Court

388 P.3d 536

2017 WY 12

Bush Land Development Company, A Wyoming Corporation, and Victoria Bush, as the president and director of Bush Land Development Company, and in her individual capacity, Appellants (Plaintiffs),

v.Crook County Weed & Pest Control District, Crook County Weed & Pest Control District Board of Directors, Randall Otwell, in his official capacity, Lee Hauber, in his official capacity, Leroy Curren, in his official capacity, David Moline, in his official capacity, Frank Hawken, in his official capacity, Crook County Weed & Pest Control District Supervisor, Bob Gilbert, in his official and individual capacities, Chase Wadley, in his official and individual capacities, Gavin Holland, in his official and individual capacities, and Kirk Broderson, in his official and individual capacities, Appellees (Defendants).

S-16-0149

Supreme Court of Wyoming.

February 3, 2017

Representing Appellants: Patrick J. Crank of Crank Legal Group, P.C., Cheyenne, Wyoming; Marci Crank Bramlet of Chapman Valdez & Lancing, Casper, Wyoming. Argument by Mr. Crank.

Representing Appellees: Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ, Justice.

[¶1] Appellants Bush Land Development Company and Victoria Bush (hereinafter referred to collectively as "Bush") appeal from the district court's dismissal of their statutory claim for inverse condemnation against Appellees Crook County Weed and Pest Control District, its board of directors, and four of its employees (hereinafter referred to collectively as "the District"). Bush claimed that, under Wyo. Stat. Ann. § 1–26–516 (LexisNexis 2015), it was entitled to just compensation for the loss of many trees on its property as a result of the District's improper application of herbicides.

[¶2] We affirm the district court's dismissal of the action, although on different grounds. There is a specific administrative process set forth in Wyo. Stat. Ann. § 11–5–110 (LexisNexis 2015) for resolving claims that a weed and pest district has damaged a landowner's property. Given there is no indication in the record that Bush exhausted its administrative remedies, the inverse condemnation action was not properly before the district court.

ISSUE

[¶3] The dispositive issue in this case is:

Did Bush fail to exhaust its administrative remedies before claiming inverse condemnation?

FACTS

[¶4] In June 2013, the District offered to apply, at no charge, herbicides to control leafy spurge found on Bush's property which bordered the Belle Fourche River near Hulett, Wyoming. Bush agreed, and District employees sprayed the property on June 18 through 21, 2013. Soon after the District completed the spraying, Bush noticed that many trees in the area of the spraying were dying. The Wyoming Department of Agriculture investigated the matter and reported:

[The District] did not purposefully mis-apply the pesticides Tordon & Rifle along the Belle Fourche river bottom zones near Hulett. However applications were not in compliance with herbicide labels. Applications were made over shallow water tables, on steep banks that could pose run off risks into the river, and certainly in between days of adverse wet weather conditions. Tordon labeling specifically warns not to apply directly to water, to areas where surface water is present, or to intertidal areas below the mean high water marks. [sic] To also NOT make applications when circumstances favor movement from treatment sites. Tordon also should not be applied within the root zone of desirable trees.... Soil and [v]egetative sample analysis also confirm Tordon/Rifle pesticide residues. [sic] Corroborating that pesticides were indeed a direct cause for riparian zone trees and plants dropping leaves, changing colors, and showing signs of low vigor.

[¶5] Bush submitted a notice of governmental claim to the District on June 8, 2015, stating that the "negligent application" of herbicides killed numerous trees on its property. There is no indication in the record that the District ever took action on the governmental claim. On June 18, 2015, Bush filed this inverse condemnation action in district court. The complaint stated the District "damaged land and real property owned by [Bush] through [its] actions of spraying herbicide in violation of label directions and outside of appropriate/approved areas."

[¶6] The District's board of directors and employees filed separate motions to dismiss, asserting that the action was not proper under the inverse condemnation statute. The District joined in the motions to dismiss. The district court held a hearing on the matter and subsequently dismissed Bush's claim. Bush filed a timely notice of appeal.

STANDARD OF REVIEW

[¶7] When reviewing a district court's decision granting a motion to dismiss, we perform a de novo review of the same materials considered by the district court. Sorensen v. State Farm Auto. Ins. Co., 2010 WY 101, ¶ 7, 234 P.3d 1233, 1235–36 (Wyo. 2010). We consider the complaint and any incorporated attachments in our review. See Irene v. Seneca Ins. Co., 2014 WY 145, 337 P.3d 483 (Wyo. 2014) ; Ridgerunner, LLC v. Meisinger, 2013 WY 31, 297 P.3d 110 (Wyo. 2013).

"When reviewing a W.R.C.P. 12(b)(6) dismissal, this Court accepts all facts stated in the complaint as being true and views them in the light most favorable to the plaintiff. We will sustain a W.R.C.P. 12(b)(6) dismissal only when it is certain from the face of the complaint that the plaintiff cannot assert any facts which would entitle him to relief."

Herrig v. Herrig, 844 P.2d 487, 490 (Wyo.1992) (citation omitted), quoted in Davis v. State, 910 P.2d 555, 560 (Wyo.1996). Although dismissal is a drastic remedy which should be granted sparingly, a motion to dismiss " is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief.' "Feltner v. Casey Family Program, 902 P.2d 206, 208 (Wyo.1995) (quoting Mummery v. Polk, 770 P.2d 241, 243 (Wyo.1989) ).

Rissler & McMurry Co. v. State, 917 P.2d 1157, 1160 (Wyo.1996), cert. denied, 519 U.S. 1091, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997) (emphasis added).

WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 355 (Wyo. 1998).

DISCUSSION

1. Constitutional Taking/Eminent Domain Act

[¶8] The Fifth Amendment to the United States Constitution prohibits the government from taking private property for public use without just compensation. Likewise, Wyoming Constitution art. 1, § 33, states: "Private property shall not be taken or damaged for public or private use without just compensation." Importantly, under these provisions, the government is not prohibited from taking private property; it is only prohibited from taking property without just compensation. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194–95, 105 S.Ct. 3108, 3120–21, 87 L.Ed.2d 126 (1985) ; Rissler, 917 P.2d at 1162.

[¶9] Eminent domain is the " ‘power of the sovereign to take private property for the public use without the owner's consent.’ " 4 Tiffany Real Prop. § 1252 (3d ed. 2016). The government's power of eminent domain is exercised through condemnation proceedings. See id. However, when the government takes private property without using formal condemnation proceedings, a landowner can bring an inverse condemnation action to recover just compensation. United States v. Clarke , 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980). The United States Supreme Court explained in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987) : "While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings."

[¶10] The Eminent Domain Act, Wyo. Stat. Ann. §§ 1–26–501 through 1–26–817 (LexisNexis 2015), governs condemnation proceedings in Wyoming. The bulk of the Eminent Domain Act sets out the requirements and procedures for governmental entities¹ to exercise their powers of eminent domain consistent with the United States and Wyoming constitutions. However, in this case the District did not bring a condemnation action, so Bush brought its claim under the section of the act providing for inverse condemnation, Wyo. Stat. Ann. § 1–26–516 :

When a person possessing the power of condemnation takes possession of or damages land in which he has no interest, or substantially diminishes the use or value of land, due to activities on adjoining land without the authorization of the owner of the land or before filing an action of condemnation, the owner of the land may file an action in district court seeking damages for the taking or damage and shall be granted litigation expenses if damages are awarded to the owner.

[¶11] The inverse condemnation statute provides landowners with a specific cause of action when the government takes or damages an interest in private property without using formal condemnation procedures. See, e.g. , Cheyenne Airport Bd. v. Rogers, 707 P.2d 717, 729 (Wyo. 1985) (stating that the takings clauses "apply to cases where governmental action effectively takes or destroys a private interest in property. These situations are described as inverse condemnation."); Smith v. Bd. of County Comm'rs of Park County, 2013 WY 3, ¶ 23, 291 P.3d 947, 954 (Wyo. 2013) (recognizing that § 1–26–516 creates a cause of action to recover damages for an unlawful taking). Conner v. Bd. of County Comm'rs, Natrona County, 2002 WY 148, ¶ 30, n.10, 54 P.3d 1274, 1285, n.10 (Wyo. 2002), explained how direct and inverse condemnation work together in the context of the Eminent Domain Act:

Inverse condemnation is distinct from eminent domain. Eminent domain

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