Judge sends Whaley road petition back to commissioners

by karla pomeroy

A road petition that was denied by the Big Horn County commissioners in 2011 is now back in their lap after a district court ruling.

According to a Fifth Judicial District Court ruling by Judge Robert Skar, filed Sept. 23, the issue of a private road petition originally filed by Mary and Patrick Whaley of Shell and Buffalo, is “remanded back to the Board of County Commissioners who shall proceed with Petitioners’ (Whaleys) application for a private road by appointing viewers and appraisers pursuant to Wyoming Statute.”

Big Horn County Attorney Michelle Burns, who met with the Big Horn County commissioners last week in executive session, said “Since it is pending litigation I have no formal comment at this time.”

Whaley’s attorney Greg Goddard said, “The judge’s opinions speaks for itself. He will do a final order, but my understanding, in relation to his opinion, is this will go back to the commissioners to appoint viewers and appraisers.” He said they will locate the most convenient road that does the least amount of damage. There are also other requirements, including if road improvements are needed and the road will be appraised the land for before and after the road is established.

“I expect the commissioners will act with reasonable dispatch,” Goddard

The appeal and civil case was filed by the Whaleys against Flitner Limited Partnership. Flitner Limited attorney Randy Royal said the court will issue a final order that there is to be a private road. The commissioners will then have to determine where that road will be. In that process there is also a determination how much will be paid for the road.

Royal said his client can appeal the judge’s ruling but a decision has not been made at this time.

He said there is also a question of jurisdiction with the Wyoming Legislature changing state law this year with all private road questions bypassing the commissioners and going to district court. While the case was originally filed under the old statute, they are discussing how to proceed in light of the new legislation.

According to the 11-page appeal decision, the Whaleys originally filed an application for a private road with the county commissioners after exhausting other avenues including attempting to purchase easements through private property owned by Flitner Limited Partnership.

The Whaleys are seeking the establishment of a private road from their property easterly along an existing road to a point where the existing road intersects with Forest Service Road 17, commonly referred to as upper Black Mountain Road.

The commissioners denied temporary access on July 14, 2011, and on Nov. 22, 2011, denied the Whaleys’ application for the private road due to “lack of good faith in evaluating an alternative route, specifically lower Black Mountain Road.”

According to court records, the Whaleys land in the Big Horn Mountains east of Shell is surrounded on all sides by other private landowners. There are no easements with the property.

Skar ruled that it is clear that the Whaleys do not have legally enforceable access to their property and that  “it was not reasonable” for the commissioners to rule that it was not clear whether they did or did not have legally enforceable access.

Skar wrote that the evidence presented at the Nov. 8 hearing before the commissioners shows they do not have legally enforceable access because the Whaleys’ property is surrounded by private property and while Flitner Limited Partnership stated in their response that the Whaleys can “reach the lower portion of the Black Mountain Road from an ‘old BLM road’ accessible from Whaleys property in order for Whaleys to access Black Mountain Road they must cross private property.

The judge then addressed the commissioners’ ruling that the Whaleys did not show good faith in providing an alternative route. He ruled, “This court finds there is evidence in the record that the (Whaleys) brought their application for a private road in good faith.” Skar wrote that according to testimony on Nov. 8, 2011, hearing, witnesses for the Whaleys and Flitner Limited, there are two ways to access the Whaleys’ property — lower and upper portions of Black Mountain Road. Mary Whaley testified on Nov. 8, according to the court documents, “she considered both the upper and lower portions of the Black Mountain Road before determining the upper portion was the best route.”

Whaley testified, according to the court record, that the lower portion is harder to travel and difficult to haul a trailer. She also testified the road is rougher and the jolts are hard on her husband’s back.

Skar wrote, “The evidence in the record supports a finding that (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.”