Hicks v. Dowd

• Citation: 157 P.3d 914,2007 WY 74
• Decision Date: 09 May 2007
• Docket Number: No. 06-2.,06-2.
• Parties: Robert H. HICKS and Pronghorn Publishing, Inc. a Wyoming corporation, individually and ex rel., Board of Trustees of the Scenic Preserve Trust, Appellants (Plaintiffs), v. Fred L. DOWD and Linda S. Dowd; and the Board of Johnson County Commissioners, Appellees (Defendants).
• Court: Wyoming Supreme Court

157 P.3d 914

2007 WY 74

Robert H. HICKS and Pronghorn Publishing, Inc. a Wyoming corporation, individually and ex rel., Board of Trustees of the Scenic Preserve Trust, Appellants (Plaintiffs), v. Fred L. DOWD and Linda S. Dowd; and the Board of Johnson County Commissioners, Appellees (Defendants).

No. 06-2.

Supreme Court of Wyoming.

May 9, 2007.

Representing Appellants: Dennis M. Kirven of Kirven and Kirven, P.C., Buffalo, Wyoming.

Representing Appellees Fred L. and Linda S. Dowd: Tom C. Toner of Yonkee & Toner, LLP, Sheridan, Wyoming.

Representing Appellee Board of Johnson County Commissioners: Greg L. Goddard, Deputy County Attorney, Buffalo, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL^*, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] The members of the Board of County Commissioners of Johnson County (the Board) serve as the trustees of the Scenic Preserve Trust of Johnson County. On August 6, 2002, the Board acted to terminate a conservation easement held by the Scenic Preserve Trust. On July 14, 2003, Appellants Robert H. Hicks and Pronghorn Publishing, Inc. (Appellants) filed a "Complaint for Declaratory Judgment, Mandamus Relief, Breach of Fiduciary Duties and Constructive Trust." Appellants' complaint challenged the Board's August 6, 2002, actions. In resolving this dispute, the district court first found that there was no violation of Wyoming's open meetings law. Later, concluding that it lacked subject matter jurisdiction, the district court dismissed the remainder of Appellants' claims. The district court ruled that the claims were barred because Appellants did not file a timely petition for review of the Board's action, pursuant to W.R.A.P. 12. We will affirm, but for reasons other than those used by the district court. We conclude that Appellants lack standing to maintain an action to enforce the Scenic Preserve Trust.

ISSUES

[¶ 2] Appellants present these six issues for our review:

A. Must plaintiffs exhaust all administrative remedies prior to challenging Johnson County's authority to extinguish a conservation easement granted to the county?

B. Does a violation of the public meeting law void the attempted extinguishment and conveyance of the conservation easement and one acre of property to Dowd?

C. Does Wyoming charitable trust law prohibit the extinguishment of a conservation easement without prior judicial approval?

D. Did the trustees of the scenic preserve trust breach their fiduciary duties as a matter of law by attempting to extinguish and convey trust land to Dowd?

E. Should the district court have imposed a constructive trust on the lands under the conservation easement on behalf of the public?

F. Is the transfer of public property to a private person without compensation a violation of the Wyoming Constitution, Article 3, Section 36 or Article 26, Section 6?

[¶ 3] In their brief, Appellees Fred and Linda Dowd raise a number of issues, including the following issue, which we find dispositive:

Does Hicks have standing as a beneficiary of a charitable trust to challenge the Board of County Commissioners' action terminating the conservation easement?

[¶ 4] In their reply brief, Appellants present this argument:

Plaintiffs have standing to present matters of substantial public interest and importance.

FACTS

[¶ 5] The case arises from a conservation easement on Meadowood Ranch in Johnson County. The conservation easement was established in 1993. At that time, Meadowood Ranch,¹ which contains approximately 1,043 acres, was owned by the Lowham Limited Partnership, the predecessor in interest to Appellees Fred and Linda Dowd (the Dowds). In 1993, Paul Lowham, one of the principals of the Lowham Limited Partnership, approached the Board of County Commissioners of Johnson County (the Board) about placing a conservation easement on Meadowood Ranch.

[¶ 6] On December 21, 1993, the Board of County Commissioners of Johnson County (the Board) adopted Resolution No. 145, which was entitled "Scenic Resources Resolution." The resolution established the "Scenic Preserve Trust" and provided:

Johnson County contains many areas with specific qualities that should be preserved in as close to their natural state or their current state as possible. Such qualities are known as scenic resources. Scenic resources encompass all attributes of the landscape from which visually defined values arise including but not limited to topography, rock outcrops, vegetation, lakes and streams, panoramic view, and wildlife.

....

In the interest of protecting the public health, safety and welfare; in the interest of protecting Johnson County's priceless environmental quality and scenic beauty; in the interest of maintaining and enriching the human environment for both residents and visitors to Johnson County; and in the interest of maintaining and enhancing Johnson County's economy, of which the tourism section is prominent, the Board of County Commissioners believes it advisable to establish a scenic preservation trust.

Section 4: Establishment of Scenic Preserve Trust.

The Board of County Commissioners hereby establishes the Scenic Preserve Trust of Johnson County, Wyoming (hereinafter referred to as the "Trust") as the entity in which real Trust Property Rights are vested and maintained according to this resolution.

Section 5: Purpose.

The Trust shall be the repository for Trust Property Rights for Johnson County, Wyoming, for the purpose of preserving and enhancing the scenic resources of Johnson County.

....

Section 6: Board of Trustees.

The Trust shall be governed by a Board of Trustees. The members of the Board of Trustees shall be the members of the Board of County Commissioners of Johnson County.

Section 7: Acquisition of Interests in Real Property.

a. The Trust may acquire by purchase, gift, devise or bequest title to, or any interest in, or rights in real property, including land and water, that will cause the County's scenic resources to be preserved in accord with the purposes of this resolution. (All such rights herein referred to as "Trust Property Rights").

b. The Trust Property Rights which constitute the assets of the Trust may be fee simple title to such property, scenic easements in such property, development rights of such property, or such other less-than-fee interests in such property as are consistent with the purposes of this resolution.

Resolution 145 became effective on the date of its adoption, December 21, 1993.

[¶ 7] On December 29, 1993, the Lowham Limited Partnership executed a "Deed of Conservation Easement and Quit Claim Deed." The deed transferred to the Board a one-acre tract of Meadowood Ranch, as well as a conservation easement over the ranch. The conservation easement was intended to "preserve and protect in perpetuity the natural, agricultural, ecological, wildlife habitat, open space, scenic and aesthetic features and values of the Ranch." The grantors expressed their intent that the conservation easement be maintained in perpetuity unless "unforeseeable circumstances" made the continuation of the conservation easement impossible. The conservation easement prohibited the "removal of minerals, hydrocarbons, and other materials on or below the surface of the land." On April 15, 1997, the Board quitclaimed the one-acre parcel of Meadowood Ranch to the Scenic Preserve Trust of Johnson County, "subject to any easements or rights-of-way that have been legally acquired."

[¶ 8] On February 1, 1999, the Lowham Limited Partnership sold Meadowood Ranch to the Dowds. The Dowds took the property subject to the conservation easement. In 2001, coal bed methane development was contemplated by a company that owns mineral interests underlying Meadowood Ranch. As a result, in June of 2002, the Dowds requested that the Board terminate the conservation easement. The Dowds asserted that coal bed methane development was unpreventable, unanticipated, and inconsistent with the terms of the conservation easement. The Dowds proposed that the conservation easement could be extinguished if the Board sold them the one-acre parcel and the conservation easement.

[¶ 9] On August 6, 2002, the Board, at a regularly scheduled meeting, took action to extinguish the conservation easement on Meadowood Ranch. First, the Board adopted Resolution No. 257. The resolution authorized the Board to execute a quitclaim deed that would transfer the one-acre parcel and conservation easement to the Dowds. The resolution referred to coal bed methane development on Meadowood Ranch, noting that such development was inconsistent with the purposes of the conservation easement. Next, the Board executed a "Quitclaim Deed," which transferred to the Dowds the one-acre tract and the conservation easement over Meadowood Ranch. The deed stated that the conservation easement over Meadowood Ranch was "extinguished and terminated." As part of the transfer, the Dowds agreed to "indemnify and hold harmless the Board and the County." As far as the record shows, there was no W.R.A.P. 12 Petition for Review of any of the actions taken by the Board on August 6, 2002.

[¶ 10] Appellant Robert Hicks is a resident of Johnson County. In addition to owning lands in Johnson County, Mr. Hicks owns Pronghorn Publishing, which publishes the Buffalo Bulletin, a newspaper of general circulation throughout Johnson County. A reporter from the Buffalo Bulletin attended the Board meeting held on August 6, 2002. Public notice of the meeting was published in the Buffalo Bulletin on August 22, 2002.

[¶ 11] Approximately ten months later, Appellants began this litigation. On June 3, 2003, Appellants filed a notice of governmental claim. On July 14, 2003, Appellants filed a "Complaint for Declaratory Judgment, Mandamus Relief, Breach of Fiduciary Duties and Constructive Trust."

[¶ 12] In the complaint, Appellants first alleged that the actions taken by the Board on August 6, 2002, violated the Wyoming Public Meetings Act, rendering the...