                                                                         FILED
                                               United States Court of Appeals
                   UNITED STATES COURT OF APPEALS      Tenth Circuit

                                                                  September 4, 2009
                          FOR THE TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    BURLINGTON NORTHERN
    SANTA FE RAILWAY COMPANY,
    a Delaware corporation,

              Plaintiff-Counter-
              Defendant-Appellee,

    v.                                                   No. 09-8003
                                               (D.C. No. 2:07-CV-00147-CAB)
    A 50-FOOT WIDE EASEMENT                               (D. Wyo.)
    CONSISTING OF 6.99 ACRES
    MORE OR LESS, OVER THE
    FOLLOWING DESCRIBED REAL
    PROPERTY: TOWNSHIP 48 NORTH,
    RANGE 70 WEST: SECTION 20:
    NW1/4SW1/4; SW1/4NW1/4;
    SE1/4NW1/4; SW1/4NE1/4;
    SE1/4NE1/4; NE1/4NE1/4

              Defendant-Appellant,

    GALLATIN FUELS INC.,
    a Pennsylvania corporation;
    MARJORIE W. GALLET, AKA
    Marjorie W. Whyel; J. ALLEN
    WHYEL; H. SCOTT WHYEL,

              Defendants-Counter-
              Claimants-Appellants.


                           ORDER AND JUDGMENT *

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
                                                                       (continued...)
Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.



      Appellants, referred to collectively hereafter as “Gallatin,” argue that the

district court made a number of errors in entering an order of condemnation in

favor of appellee Burlington Northern Santa Fe Railway Company (“BNSF”) in

regard to the 50-foot wide tract of land described in the caption (50-foot tract).

Gallatin asserts six points of error. Because we find that none of them have

merit, we affirm the district court’s condemnation order and judgment, exercising

jurisdiction under 28 U.S.C. § 1291.

                                          I.

      BNSF sought to condemn the 50-foot tract because it was necessary to

provide support for one of three tracks that it had running through the area of

Wyoming in question. Gallatin owns not only the 50-foot tract, but also a

significant portion of other land on both sides of these three tracks. The main

interest in this property on the part of the defendants that make up Gallatin is for

the coal that apparently lies under the property. But the property is also leased

for agricultural purposes and used for hunting and BNSF maintains a railroad


*
 (...continued)
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
crossing for Gallatin’s use. BNSF claimed that it already had a legal right-of-way

for the land on which all three tracks are located, but it sought to purchase the

50-foot tract in order to provide proper slope support for the recently added third

track, and to install a fire break and access road. Prior to the lawsuit, the parties

engaged in extensive negotiations on a number of issues, including the

maintenance of the existing crossing, the possible construction of an overpass, the

railroad’s right to the land on which the tracks were built, and the purchase of the

50-foot tract. BNSF eventually filed a complaint seeking to quiet title to or

condemn the land necessary for its railroad tracks. But the description of the land

set forth in the complaint did not originally include the 50-foot tract. It was

eventually allowed to amend its complaint to include the 50-foot tract as part of

the land it was seeking to condemn. The parties eventually reached a settlement

as to the claims regarding all the property except the 50-foot tract and Gallatin’s

claim that BNSF’s condemnation action was statutorily precluded by its failure to

maintain a reasonably adequate means of crossing the railroad. Following a

bench trial, the district court entered findings of fact, a condemnation order, and a

judgment granting BNSF’s request for condemnation of the 50-foot tract.

Gallatin has appealed, raising six points of error.

             In an appeal from a bench trial, we review the district court's
      factual findings for clear error and its legal conclusions de novo.
      Findings of fact are clearly erroneous when they are unsupported in
      the record, or if after our review of the record we have the definite
      and firm conviction that a mistake has been made. If the district

                                          -3-
       court’s account of the evidence is plausible in light of the record
       viewed in its entirety, the court of appeals may not reverse it even
       though convinced that had it been sitting as the trier of fact, it would
       have weighed the evidence differently. This admonition applies
       equally regardless of whether the district court’s factual findings are
       based on credibility determinations or on documentary evidence.

La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009)

(quotations and citations omitted). In this diversity case we apply Wyoming law.

                                            II.

       In its first point, Gallatin argues it had a constitutional and statutory right

to a trial by jury on the issue of reasonable access. Gallatin does not dispute that,

generally, there is no right to a jury in a condemnation case under Wyoming law.

See Colorado Interstate Gas Co. v. Uinta Dev. Co., 364 P.2d 655, 657 (Wyo.

1961) (“It is well settled that there is no constitutional right to a trial by jury in

condemnation cases, and in the absence of a special constitutional or statutory

provision such a right does not exist.”).

       Nevertheless, Gallatin points to Federal Rule of Civil Procedure 71.1(k),

which provides that Rule 71.1 “governs an action involving eminent domain

under state law. But if state law provides for trying an issue by jury–or for trying

the issue of compensation by jury or commission or both–that law governs.”

Gallatin argues that § 1-26-812 of the Wyoming Statutes provides for a right of

trial by jury.




                                            -4-
       Under § 1-26-812(a): “[w]hen any person owns land on both sides of any

railroad, the company owning the railroad shall construct and maintain reasonably

adequate means of crossing the railroad.” As recognized by Gallatin, § 1-26-812

also provides the steps a railroad must take and the conditions it must meet for the

railroad to be able to abandon, close, or fail to maintain such a crossing. If the

steps are not followed or the conditions not met, the railroad is precluded from

exercising the condemnation powers found in § 1-26-810. A landowner therefore

has a defense to condemnation when the railroad has not properly maintained a

crossing or closed a crossing without taking the required steps or fulfilling the

required conditions. Gallatin duly presented § 1-26-812 as one of its affirmative

defenses.

       Gallatin’s argument that § 1-26-812 also provides a cause of action that is

to be tried by a jury is based on subsection (f), which reads: “Nothing in this

section shall be construed as limiting or prohibiting any person from maintaining

any other action at law for a railroad’s failure to maintain a crossing, or

abandonment or closing of a crossing.” Gallatin argues on appeal that the

“explicit language” of this subsection “provides for actions at law when railroad

crossings are claimed to be abandoned, closed, not maintained, or otherwise

interfered with when a landowner owns property on both sides of a crossing.”

Aplt. Br. at 12 (emphasis added). It asserts that since “actions at law” are

historically tried to a jury, it had the right to a jury trial. Id.

                                             -5-
      It seems clear that § 1-26-812(f) itself does not “afford[] individuals the

right to trial by jury.” Aplt. Br. at 11. That subsection merely seeks to confirm

that the statute does not impact any other action at law that a landowner might

bring against a railroad that failed to properly maintain a crossing. It therefore

appears that Gallatin is arguing that the language of subsection (f) is essentially

evidence that some action at law exists for challenging a railroad’s failure to

maintain a crossing, or abandonment or closing of a crossing.

      First, this is incorrect. The fact that § 1-26-812(f) ensures that the statute

does not prevent or hinder a landowner from “maintaining any other action at law

for a railroad’s failure to maintain a crossing, or abandonment or closing of a

crossing[,]” does not necessarily mean that any such “other action at law” exists

under Wyoming law, or that if such an action at law exists that it would apply in

this situation. Second, and more importantly, even if some such action at law

does exist, the relief sought by Gallatin in its “counterclaim” was an injunction

against BNSF’s condemnation action. Actions seeking injunctions are historically

equitable in nature, see Reno Livestock Corp. v. Sun Oil Co. (Delaware), 638 P.2d

147, 153 (Wyo. 1981) (noting that “[i]njunctive relief is designed not to deal with

past violations, but to avoid future wrongs” and that “[p]revention of impending

future injury is a recognized function of a court of equity”), and equitable actions

are historically tried to the court, see Ferguson v. Ferguson, 739 P.2d 754, 758-59

(Wyo. 1987) (noting that actions in equity are triable to the court, subject to the

                                          -6-
court’s power to order any issue to be tried to a jury). Thus, we find no reason to

overturn the district court’s refusal to grant a jury trial.

                                           III.

      In its second point, Gallatin argues that the district court erred in denying

its motion for mistrial because it was prejudiced by the district court judge

allegedly falling asleep a number of times during the trial.

      We review the district court’s denial of a motion for mistrial for
      abuse of discretion. In deciding whether the court abused its
      discretion, we assume that the trial judge is in the best position to
      determine whether an incident was so serious as to warrant a mistrial.
      Denial of a motion for a new trial is within the discretion of the trial
      court and will not be disturbed on appeal in the absence of manifest
      abuse of discretion.

Rios v. Bigler, 67 F.3d 1543, 1550 (10th Cir. 1995) (quotations and citations

omitted).

      In denying the motion, while the district court judge admitted he nodded

off at times, he asserted that such instances could not have been for more than a

minute at a time, he did not think he missed anything, and even if something was

initially missed, no prejudice occurred because he had access to a transcript.

Gallatin argues generally that “the judicial somnolence in this case was neither

brief, exceptional, nor confined to procedural or other matters unrelated to the

legal issues involved.” Aplt. Opening Br. at 14.

      But neither the motion before the trial court, the affidavits that supported

that motion, nor Gallatin’s appellate brief contain any precise allegations as to

                                            -7-
how long the judge slept or the nature of the testimony missed during those

periods of time. Consequently, Gallatin is arguing, without supporting authority,

that “judicial somnolence” of any duration necessarily requires a mistrial. We are

not prepared to take such an extreme position. While a judge falling asleep for

any period of time is unfortunate, a mistrial requires at least some showing of

harm. See Rios, 67 F.3d at 155 (requiring a “serious” incident to warrant a

mistrial).

                                           IV.

       In its third point, Gallatin argues that the district court erred when it

admitted evidence of confidential settlement negotiations and then relied upon

that evidence in reaching its decision. Federal Rule of Evidence 408 states that

evidence of a party’s “furnishing or offering or promising to furnish–or accepting

or offering or promising to accept–a valuable consideration in compromising or

attempting to compromise the claim” or evidence of a party’s “conduct or

statements made in compromise negotiations regarding the claim” is “not

admissible on behalf of any party, when offered to prove liability for, invalidity

of, or amount of a claim that was disputed as to validity or amount, or to impeach

through a prior inconsistent statement or contradiction.” Although agreeing that

BNSF had to show it engaged in good faith negotiations in order to prove its case,

Gallatin asserts that BNSF was only allowed to present evidence of negotiations

that took place prior to the lawsuit. Gallatin argues that the court violated Rule

                                           -8-
408 by admitting evidence of post-filing negotiations, thereby prejudicing

Gallatin. We deny this point.

      We must first note that Gallatin does not describe the complained-of

testimony in any detail in its brief, simply directing this court’s attention to

certain pages of the trial transcript. This is problematic because Rule 408 is not

an absolute prohibition on the admission of evidence regarding settlement

negotiations. But Gallatin makes the general argument that the testimony in those

passages prejudiced Gallatin by showing it negotiated in bad faith in the

post-filing settlement negotiations.

      We cannot see how Rule 408 could apply in this situation. Gallatin argues

that BNSF only had to show that it negotiated in good faith up until the time it

filed its legal action. BNSF disagrees, arguing it had to show that it continued

good-faith negotiations after the legal action was filed. We need not decide

which party is correct. If BNSF is correct, then clearly it would be allowed to

present evidence regarding post-filing negotiations. But if Gallatin is correct,

then evidence of post-filing negotiations could not be said to have been “offered

to prove liability for, invalidity of, or amount of a claim that was disputed as to

validity or amount, or to impeach through a prior inconsistent statement or

contradiction.” Fed. R. Evid. 408 (emphasis added). In such a case, evidence of

post-filing conduct would be irrelevant to the question of whether BNSF had met

its burden of showing it negotiated in good faith prior to filing its legal action,

                                          -9-
especially since, as pointed out by Gallatin in its appellate brief, Gallatin had no

duty to negotiate in good faith at any point.

                                             V.

         In its fourth point, Gallatin argues that the district court erred when it

allowed BNSF to amend its complaint and caption to add the 50-foot tract. BNSF

filed its complaint on June 29, 2007. On March 3, 2008, it filed a motion to

amend asserting that the original complaint failed to include the 50-foot tract by

mistake. BNSF argued that Gallatin had known since at least September 24,

2007, that the land BNSF was seeking to obtain in the lawsuit included the 50-

foot tract and that a corrected legal description had been provided on December 3,

2007. BNSF argued that judicial economy would be better served by amending

the complaint than by making BNSF file a second lawsuit to condemn the 50-foot

tract.

         While Gallatin admitted that negotiations prior to the lawsuit had included

the 50-foot tract and that it had indeed received the information referenced by

BNSF in September and December of 2007, it claimed that it had hired its own

surveyors to determine what BNSF was actually seeking in the complaint and

were told that the 50-foot tract was not included. It argued it should be entitled to

rely on the information in the complaint, that there was no good excuse for BNSF

not including the 50-foot tract in the original complaint, and that Gallatin would




                                            -10-
be prejudiced by the amendment because of the cost of the surveyors and because,

among other things, it had not undertaken discovery regarding that 50-foot tract.

      Federal Rule of Civil Procedure 15 provides, in regard to motions seeking

to amend a complaint after a responsive pleading has been filed, that such

amendments are permitted only with leave of the court and that “[t]he court

should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). This

court “review[s] a district court’s decision to grant leave to amend for abuse of

discretion. A district court abuses its discretion if its decision is arbitrary,

capricious, whimsical, or manifestly unreasonable.” Bylin v. Billings, 568 F.3d

1224, 1229 (10th Cir. 2009) (quotation and citation omitted).

      A magistrate judge granted BNSF’s motion on April 16, 2008. The judge

agreed that a defendant should be able to reasonably rely on the information

presented in a complaint. But he held for BNSF, reasoning that Gallatin had

generally understood that the 50-foot tract was part of the land BNSF was seeking

and that prejudice could be mitigated by allowing additional discovery regarding

that portion to continue until May 16, 2008. The district court subsequently held

that the amendment ordered by the magistrate judge was proper. See Aplt. App.,

Vol. I at 247.

      Gallatin’s argument on appeal is comprised of four subpoints which we

address in order. It first argues that BNSF failed to demonstrate the requisite

“good cause” required by Federal Rule of Civil Procedure 16 to amend the

                                          -11-
scheduling order. Under Rule 16(b)(4), “[a] schedule may be modified only for

good cause and with the judge’s consent.” While Gallatin has not provided this

court with the scheduling orders in this case, it acknowledges that neither the

original order nor the amendments contained a deadline for amendments to

pleadings. Nevertheless, it argues that because Rule 16(b)(3)(a) requires a

scheduling order to limit the time available to amend the pleadings, and “the

deadline for amending complaints invariably precedes that set for the submission

of dispositive motions,” Aplt. Opening Br. at 20 n.5, then this court should

consider the motion to amend the complaint a motion to amend the scheduling

order and the “good cause” standard should apply. We disagree.

      First, Gallatin does not assert that it complained to the district court about

the lack of an amendment deadline in the scheduling order. Since no such

deadline was included, the amendment motion can not be considered a motion to

amend the scheduling order. Further, the motion to amend was filed on the day of

the deadline for dispositive motions, and even if Gallatin is correct that “the

deadline for amending complaints invariably precedes that set for the submission

of dispositive motions,” id. (emphasis added), there is no evidence that if an

amendment deadline had been set, BNSF would not have complied with it. Thus,

we decline to consider the “good cause” standard of Rule 16(b)(4).

      Gallatin next argues that the district court abused its discretion in allowing

the complaint to be amended under Federal Rule of Civil Procedure 15. It asserts

                                         -12-
that it had spent a considerable amount of time and money to determine the

property involved in the dispute and that “[t]he discovery was far from complete

on this issue, both as to Gallatin’s inquiries of BNSF as well as preparation of the

condemnation proceeding.” Aplt. Br. at 25.

              The district court has wide discretion to recognize a motion for
      leave to amend in the interest of a just, fair or early resolution of
      litigation. Rule 15 was designed to facilitate the amendment of
      pleadings except where prejudice to the opposing party would result.
      Typically, courts will find prejudice only when an amendment
      unfairly affects non-movants in terms of preparing their response to
      the amendment.

Bylin, 568 F.3d at 1229 (quotations, citations, ellipsis, and brackets omitted).

Here, the majority of the pre-trial negotiations concerned the 50-foot tract.

Considering the district court had already moved back the trial date and then

moved back the discovery date so that further discovery could be had with regard

to the 50-foot tract, and the fact that Gallatin was, at the least, very familiar with

that parcel of land, we cannot say that the district court’s decision to allow

amendment was “arbitrary, capricious, whimsical, or manifestly unreasonable.”

Id. (quotation omitted). As for the money Gallatin asserts that it spent because of

the initial failure to include the correct legal description, “the expenditure of time,

money, and effort alone is not grounds for a finding of prejudice.” Id. at 1230

(holding that the money and time plaintiffs spent preparing their case was not a

sufficient showing of prejudice to preclude the district court from allowing




                                          -13-
defendants to amend their answer to add a dispositive affirmative defense a few

weeks before trial).

      Gallatin next argues that the district court erred in granting BNSF’s motion

to amend the caption of the case. The docket shows that a month after the court’s

order allowing the complaint to be amended to include the 50-foot tract, the

parties reached a settlement as to the claims concerning all the land but the

50-foot tract. BNSF then filed a motion to amend the caption to reflect that, at

that point, only the 50-foot tract was still at issue. In opposing the motion,

Gallatin argued that because BNSF’s motion stated that it “originally filed the

lawsuit” seeking the land that was no longer at issue, and the amended caption

would show only the 50-foot tract, the motion was a “tacit admission” that BNSF

had not originally intended to include the 50-foot tract as part of its complaint.

      Gallatin’s argument was merely an attempt to use the loose wording of the

subsequent motion to relitigate the previously decided motion to amend the

complaint. The district court properly determined the caption should reflect the

changes in the case wrought by the amendment of the complaint and the

subsequent stipulation of the parties.

      Gallatin’s final argument in its fourth point is that BNSF failed to comply

with new Wyoming statutory notice requirements for condemnation that went into

effect after BNSF filed its original complaint but before it amended its complaint

to include the 50-foot tract. It argues that the district court therefore did not have

                                          -14-
jurisdiction over the 50-foot tract. Gallatin made this argument to the district

court in a motion to strike the amended complaint. In that motion, Gallatin

acknowledged that under Federal Rule of Civil Procedure 15(c)(1)(B), an

amended complaint would relate back to the date of the original complaint–which

was filed prior to the new notice requirements going into effect–when “the

amendment asserts a claim or defense that arose out of the conduct, transaction,

or occurrence set out–or attempted to be set out–in the original pleading[.]” But

it argued that the claim to the 50-foot tract did not arise out of the “conduct,

transaction, or occurrence set out–or attempted to be set out–in the original

pleading,” because the property set out in the original pleading had previously

been occupied by the railroad, whereas the 50-foot tract had never been occupied

by the railroad.

      Following a hearing, the district court entered an order denying the motion

to strike. In Gilles v. United States, 906 F.2d 1386, 1390 (10th Cir. 1990), this

court found that an amended complaint grounded on “the same nucleus of

operative facts” as the original complaint related back to the date of the original

complaint. The district court relied on Gilles in holding that the amended

complaint in this case related back to the date the original complaint was filed.

Although Gallatin argues that the amended complaint including the 50-foot tract

was not “transactionally related to the original claim,” Aplt. Br. at 29, the

question is whether it arose out of the “conduct, transaction, or occurrence set

                                          -15-
out–or attempted to be set out–in the original pleading,” Fed. R. Civ. P.

15(c)(1)(B). It seems clear that the claim for the 50-foot tract rose out of the

conduct set forth in the original pleading. The condemnation claim in the original

complaint asserted that BNSF was seeking to condemn property for a “triple track

. . . necessary to transport coal from the Powder River Basin,” Aplt. App., Vol. I

at 23, and made clear that it was seeking to condemn the property for this triple

track for, among other things, the necessary slope support for the tracks. It is

clear from the record that BNSF’s position has always been that the 50-foot tract

was necessary for that slope support. Further, BNSF deposited $164,355 with the

court at the time it filed its lawsuit. This amount evidently included

compensation for the 50-foot tract since there was no suggestion that additional

funds be deposited when the motion to amend was granted. Finally, the record

shows that the majority of the negotiations prior to trial concerned the purchase of

the 50-foot tract, including those negotiations represented by a “Final Offer

Letter,” discussed at trial by both parties in which BNSF offered $30,250 for the

50-foot tract, plus $44,750 for “all other loss and damage.” Aplee. Supp. App.,

Vol. 4 at 1288. We thus affirm the district court’s determination that the

amended complaint related back to the date the original complaint was filed.

                                          VI.

      In its fifth point, Gallatin challenges certain findings of fact of the district

court and the sufficiency of the evidence supporting the district court’s

                                          -16-
determination that (1) BNSF had proven the requisite factors for condemnation,

(2) BNSF negotiated in good faith prior to filing for condemnation, and (3) BNSF

provided a reasonably adequate means of crossing the railroad tracks in question.

We shall address these points in order.

         As to Gallatin’s first argument, we note that under Wyo. Stat. Ann.

§ 1-26-504(a), in order to exercise the power of eminent domain, BNSF had to

prove public necessity by showing (1) that the tracks in question were necessary

and in the public interest, (2) that they were planned or located in the manner that

will be most compatible with the greatest public good and least public injury, and

(3) that the 50-foot tract was necessary for the tracks. Gallatin challenged the

final two requirements.

         We first consider BNSF’s burden of proof. Since BNSF is not one of the

public entities identified in § 1-26-504(b), in order to discharge its burden under

subsection (a), it must “put on evidence of public necessity at the hearing before

the district court.” Bd. of County Commr’s v. Atter, 734 P.2d 549, 553 (Wyo.

1987).

         Once [it] has established a prima facie case of public necessity . . .
         by the production of evidence which factually supports its
         determination of public necessity, the burden then shifts to the
         condemnee who must then either concede the existence of a necessity
         or be prepared to show bad faith or abuse of discretion as an
         affirmative defense.




                                          -17-
Id. In Town of Wheatland v. Bellis Farms, Inc., 806 P.2d 281, 283 n.5 (Wyo.

1991), the Wyoming Supreme Court disagreed with a landowner’s argument that a

“condemnor must prove the factual elements set out in W.S. [§] 1-26-504(a) by a

preponderance of the evidence[,]” holding instead that “evidence that the town

has complied with the statutory requirement is sufficient.” Gallatin asserts

without supporting authority that the BNSF had the burden of providing

“substantial evidence” supporting the requirements of § 504(a). This standard is

generally used in regard to agency decisions and, under Wyoming law,

“[s]ubstantial evidence is relevant evidence which a reasonable mind might accept

in support of the agency’s conclusions. It is more than a scintilla of evidence.”

Dale v. S & S Builders, LLC, 188 P.3d 554, 558 (Wyo. 2008) (quotation omitted).

Nevertheless, it is not necessary that we determine the exact burden of proof here,

in that even if the more rigorous “preponderance of the evidence” standard were

applied, affirmance would still be required.

      Based on evidence put forth by BNSF at trial, mainly through the testimony

of two railroad engineers each with almost forty years of experience, the district

court found that the position of the third track “conformed with prudent

engineering guidelines,” Aplt. App. at 357, that the soils around the Gallatin

property were unstable and prone to failure, id. at 358, and that without the

50-foot tract, BNSF would not be able to achieve the recommended national

minimum standard for railroad slopes of 2:1 throughout the entirety of the

                                         -18-
section, id. The district court further found that the 50-foot tract would be used

for a fire break and access road which were necessary for prudent railroad

operations. Our review of the record convinces us there was no clear error in any

of these factual findings.

      The essence of Gallatin’s argument is that this evidence was insufficient

because BNSF’s engineering experts did not give sufficiently detailed testimony

and admitted that it was physically possible to have a three-track arrangement

without using the 50-foot tract. As to the specificity of the witnesses’ testimony,

Gallatin’s argument is based on the fact that Mr. Herman, one of the engineers,

could not testify as to the exact amount of land needed for a proper supporting

slope for each part of the track. Mr. Herman testified that he would have the

specific information regarding the physical characteristics of each part in front of

him in order to make those specific calculations. But Mr. Herman clearly

testified that the 50-foot tract was necessary to allow for a 2:1 slope through the

area at question, a firebreak, and an access road and no contrary expert testimony

was presented to contest this.

      As to whether other options were physically possible, the witnesses

admitted, for instance, that the railroad could conceivably take out the second and

third track and move them closer to the first track, but that this would involve

taking the railroad lines out of commission for an extended period of time and

moving the tracks into an area that had previously experienced a slope failure.

                                         -19-
They also admitted they could possibly build retaining walls along the areas in

question to provide the necessary support but that doing so would be extremely

expensive and imprudent in that a retaining wall failure would be more

catastrophic than a slope failure. Gallatin argues, without any supporting

authority, that economic feasibility may not be considered when making a

condemnation determination, Aplt. Br. at 32 n.10, and that “prudence and cost are

not the statutory standard,” id. at 32.

      The statutory standards that are at issue are that the project be “planned or

located in the manner that will be most compatible with the greatest public good

and least public injury” and that the 50-foot tract be “necessary” for the third

track. Wyo. Stat. Ann. § 1-26-504(a). Clearly, a rule that safety or economic

feasability can be given no consideration in condemnation proceedings would

completely undermine the first of these standards. If a project costs so much that

the railroad will not undertake it, there will be no public good. As for the second

standard, in Wyoming, “[w]hen a condemnor seeks to establish the requirement of

necessity in an eminent domain proceeding, it need only show a reasonable

necessity for the project.” Atter, 734 P.2d at 553. While the Atter court was

considering the “necessity” of the project in question under § 1-26-504(a)(i), and

not the necessity of the property in question to that project under § 1-26-

504(a)(iii), we think reasonable necessity must be the standard there as well.

Further, the Wyoming Supreme Court has noted that:

                                          -20-
      “broad discretion is necessarily vested in those to whom the power of
      eminent domain is delegated, in determining what property is
      necessary for the public purpose, with respect to the particular route,
      line, or location of the proposed work or improvement, and the
      general rule is that the courts will not disturb their action in the
      absence of fraud, bad faith, or gross abuse of discretion.”

Town of Wheatland, 806 P.2d at 292 (quoting 1A Nichols on Eminent Domain

§ 4.11[2] at 4-215 (rev. 3d ed. 1990)). We therefore affirm the district court’s

determination that BNSF met the requirements of 1-26-504(a).

      Gallatin’s second argument is that the district court erred in determining

that BNSF had negotiated in good faith in seeking to purchase the land in

question prior to the case being filed. The district court found that BNSF had

negotiated with over 80 landowners regarding the acquisition of the land

necessary to build the third railroad track and that settlements had been reached

with all of the landholders but Gallatin. It further found that extensive

negotiations were undertaken and that BNSF eventually offered $10,000 per acre

for the disputed land although it had calculated the fair market value to be $2,500

per acre. The court found that negotiations eventually stalled as a result of

Gallatin’s continuous demands and unwillingness to meet compromise, mostly

over its desire to have an overpass constructed, even though BNSF had agreed to

realign and fix the approaches for the existing crossing in order to improve it.

Again, our review of the record convinces us that none of these findings are clear




                                         -21-
error. Consequently, we cannot say the district court erred in determining that

BNSF negotiated in good faith.

      Finally, Gallatin argues that the district court erred when it found that

BNSF provided a reasonably adequate means of crossing the railroad tracks in

question. Gallatin’s argument is that the district court gave insufficient weight to

witness testimony that both it and its lessee have at times had to either wait for

trains to pass or have had to use other crossings. It asserts that BNSF’s

arithmetic calculations of wait times should not be given significant weight

because the calculations did not account for all of the possible rail traffic. Our

review of the record fails to show any clear error on the part of the district court.

There is no dispute that the use of the crossing is limited. The individual

defendants do not live on the property and only occasionally use it for hunting.

Gallatin Fuels does not use the property. The agricultural lessee moves cattle

from one side of the tracks to the other twice a year and hays the property once a

year. BNSF presented evidence that in February 2008 the crossing was blocked

9% of the time and that in July 2008, the crossing was passable an average of

52.38 minutes per hour. Gallatin complains about the district court noting that

other crossings were available in the area because (1) it has no legal right to use

those crossings, so (2) they should not have been considered. As to the first

assertion, evidence was presented by BNSF that Gallatin did, in fact, have an

easement to use one of the alternative crossings. As to the second assertion, even

                                          -22-
if there was no legally enforceable right to use the other crossings it was clear

from the testimony that they were regularly used at the time of trial. Gallatin

presents no authority on appeal to support its assertion that the district court was

prohibited from even considering their existence in determining whether the

crossing provided was reasonably adequate. In short, we cannot say the district

court’s finding was “unsupported in the record,” or that we have a “definite and

firm conviction” that a mistake was made. See La Resolana Architects, PA, 555

F.3d at 1177.

                                         VII.

      In its sixth point, Gallatin argues that the property the court allowed to be

condemned exceeded the 200-foot limitation for railroad condemnation. Under

Wyo. Stat. Ann. § 1-26-810(b): “Any land taken, appropriated and held otherwise

than by the consent of the owner shall not exceed two hundred (200) feet in width

unless greater width is necessary for excavations, embankments, depositing waste

earth or for construction of other appurtenant facilities necessary for the operation

of the railroad.” This point is derivative of the Gallatin arguments previously

denied. Gallatin’s argument is that the width of the land involved in the

settlement agreement plus the 50-foot tract exceeds the maximum width of 200

feet and that this is improper under the statute because, as argued above, Gallatin

asserts that the 50-foot tract was not “necessary for the operation of the railroad.”

This point is therefore denied in addition to those denied above.

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                              VIII.

The judgment of the district court is AFFIRMED.



                                          Entered for the Court


                                          David M. Ebel
                                          Circuit Judge




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