In re Claim For Damages Filed By Longwell

• Decision Date: 28 April 2022
• Docket Number: S-21-0173
• Citation: 2022 WY 56
• Parties: IN THE MATTER OF THE CLAIM FOR DAMAGES FILED BY JOSH LONGWELL WITH THE WYOMING GAME AND FISH DEPARTMENT: JOSH LONGWELL, Appellant (Claimant), v. WYOMING GAME AND FISH DEPARTMENT, Appellee (Respondent).
• Court: Wyoming Supreme Court

2022 WY 56

IN THE MATTER OF THE CLAIM FOR DAMAGES FILED BY JOSH LONGWELL WITH THE WYOMING GAME AND FISH DEPARTMENT: JOSH LONGWELL, Appellant (Claimant), v. WYOMING GAME AND FISH DEPARTMENT, Appellee (Respondent).

No. S-21-0173

Supreme Court of Wyoming

April 28, 2022

Appeal from the District Court of Hot Springs County The Honorable Bill Simpson, Judge

Representing Appellant: Drake D. Hill, Hill Law Firm, LLC Cheyenne, Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; James Kaste, Deputy Attorney General; Matt VanWormer, Senior Assistant Attorney General; Jenny Staeben Senior Assistant Attorney General. Argument by Ms. Staeben.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

KAUTZ JUSTICE

[¶1] Josh Longwell, a Hot Springs County rancher, appeals from the district court's modification of an arbitration award compensating him for calf damage he sustained during the 2018 grazing season as a result of grizzly bear predation. Because the arbitrators made an award on a matter not submitted to them, we affirm the court's modification of the award.

ISSUE

[¶2] The dispositive issue in this appeal is:

Did the district court err in modifying the arbitration award under Wyo. Stat. Ann. § 1-36-115(a)(ii) (LexisNexis 2021) because the arbitrators "awarded upon a matter not submitted to them"?

FACTS

[¶3] Mr. Longwell operates a large cattle and sheep ranch in the Owl Creek area of Hot Springs County, Wyoming. The ranchlands range from irrigated pastures to high mountains. Grizzly bears live in the area and frequent the ranch. During the 2018 grazing season, Mr. Longwell found a number of his calves dead from what he believed to be grizzly bear predation. Upon observing one of the dead calves, he reported it to the Wyoming Game and Fish Department (Department) which is charged by Wyo. Stat. Ann. § 23-1-901(c) (LexisNexis 2021) with investigating a landowner's claim that his livestock were damaged by a trophy game animal, including "black bear, grizzly bear or mountain lion," and compensating him for such damage if it was caused by a trophy game animal. Wyo. Stat. Ann. § 23-1-101(a)(xii)(A) (LexisNexis 2021) (defining "[t]rophy game animal").

[¶4] The Department dispatched an employee to the ranch to investigate whether the calf had been killed by a trophy game animal. The investigation was two-fold. First, the employee examined the site where the dead calf was found, looking for signs of a struggle and animal tracks. Next, he inspected the carcass for bite patterns and puncture marks indicating the calf was killed by a predator and for signs suggesting the calf was still alive when the injuries occurred such as bruising, muscle trauma, and hemorrhaging. If the employee decided it was "more likely than not" that the calf was killed by a trophy game animal, the Department deemed it to be a "confirmed" kill. Regulations of Wyoming Game and Fish Commission (Commission Regulations), Ch. 28, Regulation Governing Big or Trophy Game Animal or Game Bird or Gray Wolf Damage Claims, §§ 2(h), 6(a) (September 18, 2018). By the end of the 2018 grazing season, the Department "confirmed" twenty of Mr. Longwell's calves had been killed by grizzly bears in an open range setting.^[1]

[¶5] Mr. Longwell submitted a verified claim to the Department pursuant to Wyo. Stat. Ann. § 23-1-901(b) requesting the Department compensate him $349, 730.20 for his calf damage. On his claim, he noted the twenty calves that had been "confirmed" by the Department to have been killed by grizzly bears. He also alleged an additional 294 calves were "unaccounted for at the end of the [grazing season]" and he "believed [them] to be missing as a result of" trophy game animals. (Emphasis removed). However, for purposes of calculating the amount of his claim against the Department, he multiplied the number of calves "confirmed" by the Department to have been killed by grizzly bears by 20 (20-times multiplier) for a total of 400 calves (20 x 20 = 400). He then multiplied that number by the calves' per-head fair market value. In other words, Mr. Longwell based his claim on an assumption that for every calf confirmed as killed by a grizzly bear, nineteen others had been killed and their remains could not be found.

[¶6] The Department rejected Mr. Longwell's damage claim. It agreed it had "confirmed" twenty calves had been killed by grizzly bears and with Mr. Longwell's per-head valuation of the calves. It also found the twenty "confirmed" kills had occurred in an area on Mr. Longwell's ranch where it is difficult to find missing or dead calves. It disagreed, however, with Mr. Longwell's use of the 20-times multiplier because it was contrary to regulations established by the Wyoming Game and Fish Commission (Commission). Under those regulations, if the "confirmed" kills were located in a geographic area which made it difficult to find missing or dead calves and the landowner had at least one "confirmed" calf injured or killed by a trophy game animal, compensation is determined by multiplying the number of calves "confirmed" by the Department to have been killed by trophy game animals by 3.5 (3.5-times multiplier) and then by the calves' per-head fair market value. Commission Regulations, Ch. 28, § 3(a)(ii)(A)(I). The Department noted that by applying a 20-times multiplier, Mr. Longwell sought to be compensated for 400 calves, 86 more calves than the combined total of calves he claimed were missing (294 calves) and those "confirmed" by the Department to have been killed by grizzly bears (20 calves) (400 - (294 + 20) = 86). Applying the 3.5-times multiplier contained in the Commission's regulations, the Department agreed to compensate Mr. Longwell for the loss of 70 calves (20 x 3.5 = 70), totaling $61, 202.79.

[¶7] Mr. Longwell appealed to the Commission, which affirmed the Department's decision. He then requested arbitration under § 23-1-901(d). He and the Department each appointed an elector of Hot Springs County to serve as an arbitrator. The two arbitrators then chose another elector to serve as the third arbitrator. The arbitrators held a contested case hearing presided over by a hearing officer from the Office of Administrative Hearings.

[¶8] At the hearing, the parties agreed twenty calves had been "confirmed" by the Department to have been killed by a trophy game animal and that those calves were found in an area on the ranch with a topography making it difficult to locate dead or injured calves. They also agreed to the per-head fair market value of the calves. They disputed, however, the multiplier to be applied. Mr. Longwell claimed the 3.5-times multiplier contained in the Commission's regulations was outdated and needed to be raised as it had not been changed since 2004. He also argued the multiplier did not adequately account for the true number of calves he lost to trophy game animal predation or for the stress, weight loss, and lower conception and birth rates caused in his cattle from trying to evade such predators. He recognized the arbitrators' application of the 20-times multiplier "might be thrown . . . [out] down the road [on appeal]." However, he claimed "sending [the State] a bill" for the amount he requested would at least "wake up everybody in [the] legislature" and "send a message" to the State that "we need to revisit [the multiplier]" and stand up for private property owners like himself who are paying the price for the State's mismanagement of the grizzly bear. The Department, on the other hand, argued the arbitrators were bound to apply the 3.5-times multiplier contained in the Commission's regulations.

[¶9] In a 2 to 1 decision, the arbitrators awarded Mr. Longwell $266, 685.32 for his calf damage. In reaching this result, they did not apply any multiplier. Rather, they compensated Mr. Longwell for 314 calves-the twenty calves "confirmed" by the Department to have been killed by grizzly bears and the additional 294 calves Mr. Longwell alleged in his verified claim were missing during the 2018 grazing season.

[¶10] The Department filed an application with the district court to modify the arbitration award under § 1-36-115 of the Uniform Arbitration Act or, in the alternative, to vacate it under Wyo. Stat. Ann. § 1-36-114 (LexisNexis 2021) of the Act. Mr. Longwell moved to confirm the award. The district court noted the parties' agreement with the number of "confirmed" kills, the type of topography where those kills were located, and the calves' per-head fair market value. Under these circumstances, the court concluded "there was little left for the arbitrators to do but apply [the 3.5-times] multiplier." By not applying the 3.5-times multiplier and instead compensating Mr. Longwell for the twenty calves "confirmed" by the Department to have been killed by grizzly bears as well as for the 294 calves he alleged were missing as a result of trophy game animals, the court concluded "the arbitrators made an award on a matter not submitted to them" and modification of the arbitration award was required under § 1-36-115(a)(ii). It modified the award to reflect the amount Mr. Longwell would have received had the arbitrators applied the 3.5-times multiplier-$61, 202.79 for the loss of seventy calves. Mr. Longwell timely appealed.

STANDARD OF REVIEW

[¶11]

We review de novo a district court's decision to confirm, vacate, or modify an arbitration award. When reviewing the district court's order after an arbitration, we undertake a full review of the record without deference to the views of the trial court. At the same time, this Court, like the district court, shows substantial deference to the decision of the arbitrator.

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