IN RE DUNNING, 98-238.
| Decision Date | 10 June 1999 |
| Docket Number | No. 98-238.,98-238. |
| Parties | In the Matter of the Petition of Forest B. DUNNING for the Establishment of a Private Road, Peter Kiewit Sons' Co., Appellant (Petitioner), v. Sheridan County Board of Commissioners, Appellee (Respondent), and Forest B. Dunning, Appellee (Respondent). |
| Court | Wyoming Supreme Court |
Hayden F. Heaphy Jr. and Debra J. Wendtland, Sheridan, WY., Representing Appellant:
Forest B. Dunning: Timothy S. Tarver, Sheridan, WY., Representing Appellee.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
This appeal results from an order of the Sheridan County Board of Commissioners (the Board) establishing a private road in Sheridan County. The preliminary issue in this case is whether, in the absence of any appearance in the proceedings below, Peter Kiewit Sons' Co. (Kiewit) may appeal the adequacy of the damages awarded to Kiewit by the Board. If so, Kiewit contends that this Court must remand this case to the Board because the order failed to present separate findings of fact and conclusions of law. Kiewit further maintains that the record contains no evidence supporting the damages awarded, and therefore, on remand the Board must conduct an evidentiary hearing. Because Kiewit failed to establish a record that it is an aggrieved party, we dismiss.
Kiewit presents the following issues for review:
Appellee Forest B. Dunning raises the following additional issues:
In 1995, Dunning petitioned to establish a private road for entry to his property in Sheridan County, pursuant to Wyo. Stat. Ann. § 24-9-101(Michie 1997).1 After proper notice to all with an interest in the lands over which the proposed road would cross, several landowners objected to the proposed location of the road. Kiewit, the owner of a coal haul road easement on one of the properties over which the proposed road would travel, received proper notice of Dunning's petition. Even so, Kiewit made no objection to the location of the road, and took no part in the subsequent contested case hearing.
On completion of the contested case hearing, the Board denied Dunning's petition, and Dunning appealed the Board's decision. Ultimately, in Dunning v. Ankney, 936 P.2d 61 (Wyo.1997), we held that Dunning was not required to provide notice to all landowners possessing property adjoining the land affected by the proposed road in order to present his petition in good faith. Id. at 66. We reversed the Board's order and remanded the matter for further consideration.
Prior to further Board action, all objecting parties reached a satisfactory resolution of the issues between them. Pursuant to Wyo. Stat. Ann. § 24-9-101, viewers and appraisers were appointed to determine the precise location of the road and the amount of any damages to the remaining interested parties. In accord with the statutory procedures, Kiewit received proper notice of the date on which the properties would be viewed but again chose to forego participation.
The documented costs of the viewers and appraisers indicate that they collectively considered comparable values and drafted written findings for the Board. The findings stated that the damages to the landowners who had not reached a previous agreement with Dunning were minimal because the road was previously improved and in use. However, due to the extension of the width of the road, the viewers recommended damages to Kiewit in the amount of $537.10, and to the remaining property owners the amounts of $668.10 and $98.40, respectively. Kiewit received notice of the contents of the final findings and report submitted to the Board, but made no objection to the viewers and appraisers.
As required by statute, the Board considered acceptance of the final findings and report at its next meeting. No written objection to the report was filed, nor were any objections voiced at the Board meeting. Absent opposition, the Board adopted the final findings and report of the viewers and appraisers, and approved the private road conditioned on Dunning's payment of damages and costs.
Kiewit filed an appeal of the Board's Order in the district court of the Fourth Judicial District, claiming it was adversely affected by the Order because the damages awarded were insufficient. Kiewit requested the matter be returned to the Board because the Order failed to set forth separate findings of fact and conclusions of law, pursuant to the mandates of the Wyoming Administrative Procedure Act, Wyo. Stat. Ann. § 16-3-1102, and that the damages were not supported by substantial evidence, in violation of Wyo. Stat. Ann. § 16-3-114(c)(ii)(A).3 The case was then certified to this Court pursuant to W.R.A.P. 12.09.
When reviewing cases which have been certified to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the court of first instance. Scott v. McTiernan, 974 P.2d 966 (Wyo.1999). As an initial matter, we determine de novo whether the appeal is properly before this Court, and, if judicial review of the agency action is appropriate, we apply the standards articulated in Wyo. Stat. Ann. § 16-3-114(c)(Michie 1997):
We examine the entire record to determine if there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency, and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable person might accept in support of the conclusions of the agency. It is more than a scintilla of evidence.
Snyder v. State ex rel. Wyoming Worker's Compensation Div., 957 P.2d 289, 292-93 (Wyo.1998) (quoting Aanenson v. State ex rel. Worker's Compensation Div., 842 P.2d 1077, 1079 (Wyo.1992)). An agency's conclusions of law will be affirmed only if they are in accordance with law. Id.
As a threshold matter, we address Dunning's assertion that this appeal is not properly before this Court because Kiewit failed to participate in the proceedings before the Board. Kiewit counters that Wyo. Stat. Ann. § 24-9-103 provides a statutory right of appeal which does not require a person to be a party in the Board's proceedings. Wyo. Stat. Ann. § 24-9-103 (Michie 1997) provides:
Any person aggrieved by the action of the board or as to the amount of damages awarded, may appeal to the district court at any time within thirty (30) days after said road is finally established by said board of county commissioners.
Kiewit contends that the Board was statutorily required to assess damages before approving the road. Therefore, this issue was presented to the Board, and the only requirement to perfect review of the adequacy of damages is a timely filing of appeal. While persuasive at first glance, this argument ignores the requirement that Kiewit must be "aggrieved by the action of the board." Kiewit has failed to properly present any evidence that it was aggrieved by the Board's actions.
While it is clear that the issue of damages was before the Board, it is equally apparent that Kiewit did not inform the Board that the amount of damages was inadequate or unjust in any way. The Board made its decision only after the opportunity to object was afforded to all interested persons for a final time, and no facts were presented which would place the conclusions of the viewers and appraisers into question. It is only in its petition for review that Kiewit attempts to present facts which allegedly illustrate that the Board's order adversely affected Kiewit. However, Kiewit's attempts to create a factual dispute are too late.
Fairness to both the petitioner and the Board of Commissioners dictates that Kiewit's challenge be first presented to the Board of Commissioners, and that Kiewit place in the record evidence to support its position before it can seek judicial review. Wyoming Board of Equalization v. State ex rel. Basin Electric Power Cooperative, 637 P.2d 248, 254 (Wyo.1981). As early as 1905, this Court premised the constitutionality of the statutes governing the establishment of roads on proper notice to the affected landowners.4 Sterritt v. Young, 82 P. 946, 14 Wyo. 146 (Wyo.1905). In Sterritt, we stated, "[t]hat the owner of property taken from him by virtue of the right of eminent domain is entitled to notice and an opportunity to be heard upon the question of the amount of his compensation can hardly be questioned." Sterritt, 82 P. at 947. The responsibility to provide adequate notice to interested parties is found throughout the subsequent case law addressing the establishment of a private road. Martens v. Johnson County Board of Commissioners, 954 P.2d 375, 380 (Wyo. 1998); Carney v. Board of County Commissioners of Sublette County, 757 P.2d 556, 559-560 (Wyo.1988); Gold v. Board of County Commissioners of Teton County, 658 P.2d 690, 695-696 (Wyo.1983). With the right to notice, however, comes the obligation of the party to present its case to the sitting board of commissioners. For example, in Gold, where the petitioner challenged the due process afforded by Wyo. Stat. Ann. § 24-9-101, we stated, "Appellants, having been given the opportunity, failed to object and they cannot now be heard to successfully complain." Gold, 658 P.2d at 696. Thus,...
To continue reading
Request your trial
-
Morris v. State ex rel. Wy. Workers' Safety & Comp. Div.
...we cannot find a preservation of her objection in the stipulated motion to have the case heard on the documents. See In re Dunning, 982 P.2d 704, 708 (Wyo.1999) (to avoid a waiver, “objections must have particularity so as to properly identify the question and to give notice of the contenti......
-
WYODAK RESOURCES DEV. v. BD. OF EQUAL.
...an agency's findings, we will not substitute our judgment for that of the agency. Peter Kiewit Sons' Co. v. Sheridan County Board of Commissioners (In re Dunning), 982 P.2d 704, 707 (Wyo.1999). If the agency's conclusions of law are in accordance with the law, this Court will affirm them. C......