                 IN THE SUPREME COURT, STATE OF WYOMING

                                    2014 WY 162

                                                     OCTOBER TERM, A.D. 2014

                                                           December 16, 2014

IN THE MATTER OF THE
APPLICATION FOR
ESTABLISHMENT OF PRIVATE
ROAD BY PRICE FAMILY TRUST of
May 22, 1995, by and through its
TRUSTEE,

TED N. PRICE, SR.,

Appellant                                      S-14-0068
(Petitioner)

v.

JUDY HUTCHINSON and WAYNE
GARMAN and ROSS GARMAN,

Appellees
(Respondents).

                    Appeal from the District Court of Crook County
                      The Honorable Michael N. Deegan, Judge

Representing Appellant:
      James R. Salisbury and Anthony M. Reyes of Riske & Salisbury, P.C., Cheyenne,
      WY. Argument by Mr. Salisbury.

Representing Appellees:
      James L. Edwards and Paul S. Phillips of Stevens, Edwards, Hallock, Carpenter &
      Phillips, P.C., Gillette, WY. Argument by Mr. Edwards.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.


[¶1] Appellant, the Price Family Trust, through its Trustee Ted N. Price Sr. (Price),
filed an application for the establishment of a private road in 2011 after filing its first
application in 2003. The district court affirmed the Crook County Board of
Commissioners’ decision to deny the application on the ground that Price has access to
his property from at least two existing public roads. This appeal followed.

                                         ISSUES

[¶2]   Price presents four issues on appeal:

              1.     The failure of the Board to take and preserve a
                     complete record of the proceedings, as required by
                     Wyoming Statute § 16-3-107(o) and (p), rendered the
                     proceedings to be without observance of procedures
                     required by law as proscribed by Wyoming Statute §
                     16-3-114(c)(ii)(D).
              2.     The Hearing Officer violated Wyoming Statute § 16-3-
                     107(k) and/or exceeded the powers of a hearing officer
                     set forth in Wyoming Statute § 16-3-112(a) and (b).
              3.     The Orders entered by the Board are arbitrary,
                     capricious, an abuse of discretion or otherwise not in
                     accordance with applicable law as required by
                     Wyoming Statute § 16-3-114(c)(ii)(A).
                     − The Board’s failure to follow and adhere to the
                     requirements of the Wyoming Administrative
                     Procedures Act, Wyoming Statute § 16-3-101, et. seq.
                     is per se arbitrary and capricious.
                     − The Board’s Final Order, Conclusion of Law No. 1,
                     is not in accordance with applicable law in holding that
                     the doctrine of collateral estoppel barred [Price’s]
                     application for establishment of a private road.
                     − The Board’s Final Order, Conclusion of Law No.
                     10, is not in accordance with applicable law in holding
                     that County Road 58 is a “public road” for the
                     purposes of Wyoming Statute § 24-9-101.
                     − The Board’s Final Order, Conclusion of Law No. 9,
                     is not in accordance with applicable law in holding that
                     [Price] does not qualify under Wyoming Statute § 24-
                     9-101 due to the State Easement.



                                               1
                4.      The Orders entered by the Board are not supported by
                        substantial evidence as required by Wyoming Statute §
                        16-3-114(c)(ii)(E).
                        − The Board’s Findings, Section B, No. 3, that County
                        Road 58 is a “public road” for the purposes of
                        Wyoming Statute § 24-9-101 is not supported by
                        substantial evidence.
                        − The Board’s Findings, Section B, No. 4(d), that the
                        State Easement is an “accessible road” from State
                        Highway 14 to [Price’s] property throughout the year
                        is not supported by substantial evidence in the record.

The issues are restated by the Appellees as follows:

                I.      Whether the Crook County Board of County
                        Commissioners (Board) committed reversible error by
                        not having a court reporter transcribe the Board’s first
                        round of deliberations on Price’s private road
                        application and by losing part of the first round of
                        deliberations due to a malfunction in the tape
                        recording device.
                II.     Whether the Board erred in allowing its County
                        Attorney to serve as hearing officer and provide legal
                        advice to the Board on the application.
                III.    Whether the Board erred in ruling that the question of
                        Price’s access to a public road had been resolved by an
                        earlier application and litigation of the question was
                        therefore barred by the doctrine of collateral estoppel.
                IV.     Whether the Board’s decision denying Price’s private
                        road application is supported by substantial evidence.

                                                FACTS

[¶3] On February 22, 2011, Ted N. Price, Sr. (Price) as Trustee of the Price Family
Trust (the Trust) filed an application for the establishment of a private road pursuant to
Wyo. Stat. Ann. § 24-9-101, et seq.1 Price asserted that his property had no outlet to or


1
   In 2011 Wyo. Stat. Ann. § 24-9-101(a) provided: “Any person whose land has no outlet to, nor
connection with a public road, may file an application in writing with the board of county commissioners
in the county where his land is located for a private road leading from his land to some convenient public
road.” However, effective July 1, 2013, the private road statutes were amended to provide for a “more
expeditious and affordable means to establish a private road” by mandating the commencement of an
action in district court as opposed to an application submitted to the board of county commissioners.”


                                                     2
connection with a public road. More precisely, he contended in his application that
County Road 58 in Crook County, Wyoming does not touch or enter his land and that the
road is a mere cow trail that does not provide reasonable and convenient access because it
is not used or maintained as a public road. Price also argued that State Highway 14 did
not provide reasonable or convenient access. Instead of using those routes, his preferred
route involved crossing Appellee Wayne Garman’s land.

[¶4] Previously, Price had applied for the establishment of a private road in 2003.
There, Price “admitted his land touches County Road easement number 58; (2) County
Road 58 is a county road; and (3) County Road 58 enters Ted N. Price, Sr.’s property.”

[¶5] Regarding the 2011 application, the Appellees herein objected. The Appellees
argued that Price already had access to his property and thus did not qualify for a private
road. Specifically, the Appellees argued that Price had at least three public access points
from which to reach his land: (1) To the north, Price’s land could be reached via County
Road 58; (2) To the east, Price’s land could be reached via Highway 196 – Lytle Creek
Road; and (3) To the southwest, Price had purchased an easement across the State of
Wyoming’s land that would permit Price to access State Highway 14. That easement
starts at Highway 14 and continues to where it terminates at Price’s property line.
Members of the public use this easement to access the Price property, as invitees.

[¶6] After receiving the paperwork from both parties, the Crook County Board of
County Commissioners appointed its county attorney, Joe M. Baron, as Hearing Officer.
An immediate hearing was held to determine whether Price’s application comported with
the private road statutes and an evidentiary hearing was scheduled on the issue of access.

[¶7] On July 5, 2011, that evidentiary hearing was held. Mid-way through the hearing,
after opening statements and after several witnesses gave testimony, the court reporter’s
equipment malfunctioned and the hearing was continued to August 3, 2011. On that date
the hearing concluded and the Board took the matter under advisement. The Board also
directed the parties to submit proposed findings and conclusions, and the Board notified
the parties that it would consider those proposals on September 6, 2011. The parties were
also notified that they could appear by phone during the September 6 deliberative session.

[¶8] The September 6 deliberative session took place but without a court reporter.
However, the county clerk used an audio recorder to record the proceedings. At the
conclusion of the session the Board indicated it was inclined to deny the application and
would have its order of denial reviewed by the Hearing Officer. The next day, on
September 7, 2011, the Board learned that the recording device had malfunctioned part
way through the deliberations. Over Price’s objection, the Board scheduled a new round

2013 Wyo. Sess. Laws, ch. 99, sec. 1. This case is nevertheless governed by Wyo. Stat. Ann. § 24-9-101,
et seq. as it existed in 2011.


                                                   3
of deliberations of October 4, 2011, which was continued without objection to December
6, 2011. The new round of deliberations was both digitally recorded and reported by a
court reporter.

[¶9] On May 1, 2012, the Board issued its Findings of Fact, Conclusions of Law and
Order Denying Application. The Board reasoned that Price already had access to his
property from at least two existing public roads: County Road 58 and State Highway 14.
The district court affirmed the Board’s order, and this appeal followed. More facts will be
elicited below as necessary.

                              STANDARD OF REVIEW

[¶10] The following standards generally govern our review of an administrative action:

                    The board’s decision on an application for a private
             road under § 24-9-101 is subject to review under the
             Wyoming Administrative Procedures Act. In reviewing the
             board’s decision, we stand in the same position as the district
             court, and our review is governed by the considerations
             specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis
             2005). Mayland v. Flitner, 2001 WY 69, ¶ 10, 28 P.3d 838,
             843 (Wyo. 2001). Section 16-3-114(c) provides, in pertinent
             part:
                    (c) To the extent necessary to make a decision and
                    when presented, the reviewing court shall decide all
                    relevant questions of law, interpret constitutional and
                    statutory provisions, and determine the meaning or
                    applicability of the terms of an agency action. In
                    making the following determinations, the court shall
                    review the whole record or those parts of it cited by a
                    party and due account shall be taken of the rule of
                    prejudicial error. The reviewing court shall:
                           ....
                           (ii) Hold unlawful and set aside agency action,
                    findings and conclusions found to be:
                           (A) Arbitrary, capricious, an abuse of
                    discretion or otherwise not in accordance with law;
                           ....
                           (E) Unsupported by substantial evidence in a
                           case reviewed on the record of an agency
                           hearing provided by statute.

Reidy v. Stratton Sheep Co., 2006 WY 69, ¶ 7, 135 P.3d 598, 602-603 (Wyo. 2006).


                                             4
[¶11] We give no deference to a board’s conclusions of law. “If the agency has not
invoked and properly applied the correct rule of law, we are obligated to correct the error.”
Mayland v. Flitner, 2001 WY 69, ¶ 10, 28 P.3d 838 at 843 (Wyo. 2001) (quoting Miller v.
Bradley, 4 P.3d 882, 888 (Wyo. 2000)).

                                      DISCUSSION

Recording of Deliberations

[¶12] Price argues that the Board failed to follow the procedure required by Wyoming
Statutes when it failed to take and preserve a complete record of the proceedings. Thus,
according to Price, the Board’s orders resulting from those “improper” proceedings must
be reversed.

[¶13] The requirement to make and preserve a record of contested case proceedings is
prescribed by Wyo. Stat. Ann. § 16-3-107(o) and (p) (LexisNexis 2013), which reads in
relevant part as follows:

                     (o) The record in a contested case must conclude:
                             (i) All formal or informal notices, pleadings,
                     motions, and intermediate rulings;
                             (ii) Evidence received or considered including
                     matters officially noticed;
                             (iii) Questions and offers of proof, objections
                     and rulings thereon;
                             (iv) Any proposed findings and exceptions
                     thereto;
                             (v) any opinion, findings, decision or order of
                     the agency and any report by the officer presiding at
                     the hearing.
                     (p) In all contested cases the proceeding including all
              testimony, shall be reported verbatim stenographically or by
              any other appropriate means determined by the agency or the
              officer presiding at the hearing.

The foregoing statute contemplates the setting aside of agency action where procedure has
not been observed. However, this is not an automatic remedy. “Any error, defect,
irregularity or variance which does not affect substantial rights shall be disregarded by the
reviewing court.” W.R.A.P. 9.04. Furthermore, in order to warrant reversal, “an error
must be injurious or prejudicial to the appellant.” KC v. CC (In re LNP), 2013 WY 20,
¶ 15, 294 P.3d 904, 909 (Wyo. 2013). In civil matters for an error to be harmful “there
must be a reasonable possibility that in the absence of error the verdict might have been


                                              5
more favorable[.]” ABC Builders v. Phillips, 632 P.2d 925, 935 (Wyo. 1981). As always,
the burden of establishing prejudicial error rests squarely with the appellant and failure to
show prejudice results in the error being deemed harmless. Smith v. State, 2009 WY 2,
¶ 26, 199 P.3d 1052, 1059 (Wyo. 2009).

[¶14] This Court stated in State Elec. Bd. v. Hansen, 928 P.2d 482, 484 (Wyo. 1996):

                    In deciding the question of whether the Board’s failure
              to keep a verbatim report of the hearing justifies reversal of
              the Board’s order, we first look to W.S. § 16-3-107(p) (Cum.
              Supp. 1996):

                 In all contested cases the proceeding including all
                 testimony shall be reported verbatim stenographically or
                 by any other appropriate means determined by the agency
                 or the officer presiding at the hearing.

              ....

              The Board chose to accomplish the verbatim reporting
              requirement by means of tape recording. For whatever reason,
              the tape recorder malfunctioned, and there remains no
              transcript for any stage of the proceeding. This procedural
              failure violates the mandatory language of W.S. 16-3-107(p)
              and departmental rules and regulations.

                      When confronted with an agency’s failure to follow
              procedure prescribed by law, the Wyoming Administrative
              Procedure Act mandates the reviewing court’s course of
              action:

                     The reviewing court shall . . . [h]old unlawful and set
                     aside agency action, findings and conclusions found to
                     be . . . arbitrary, capricious, an abuse of discretion or
                     otherwise not in accordance with law [or] . . . [w]ithout
                     observance of procedure required by law[.]

              W.S. 16-3-114(c)(ii)(A) & (D) (1990).

                     This court has previously addressed the consequences
              of an agency’s failure to follow required procedures in the
              licensing context. In Bowen v. State, Wyoming Real Estate
              Comm’n, 900 P.2d 1140 (Wyo. 1995), the Real Estate


                                              6
              Commission failed to follow prescribed rules in suspending a
              broker’s license. We held that an agency’s failure to follow
              its own procedural rules was an arbitrary and capricious act
              and reversed the Commission’s order. Id., at 1142. See also,
              State ex rel. Workers’ Compensation Div. v. Brown, 805 P.2d
              830, 835 (Wyo. 1991).

                     Appellant contends that because a verbatim transcript
              is not required as part of the record in a contested case
              pursuant to W.S. 16-3-107(o), it should be allowed to prepare
              a statement of the evidence or proceedings from the best
              available means, W.R.A.P. 3.03, or the court should be
              required to take additional evidence on the matter, W.R.A.P.
              12.07. We find this argument to be irrelevant to appellee’s
              procedural right to verbatim reporting--a separate and specific
              right afforded appellee in both the Administrative Procedure
              Act and the Board’s own rules and regulations.

                     The requirement of verbatim reporting is a procedural
              mechanism to enable the reviewing court and the parties to
              weigh the grounds for an appeal of an agency decision.
              Reversal of the Board’s decision and order was appropriate
              where there was available no verbatim record as required by
              W.S. 16-3-107(p) and applicable departmental rules and
              regulations.

[¶15] In this case, on July 5, 2011, the hearing reporter’s transcription machine
malfunctioned. That hearing was immediately adjourned and later reconvened on August
3, 2011. There, additional evidence and closing arguments were presented and the
evidence was closed. On September 6-7 another equipment malfunction occurred during
deliberations. Those proceedings were terminated and the Board met again on December
6, 2011, to “reconvene their deliberations on their findings for the final order.”

[¶16] When taking into consideration the requirements of the statute and what occurred
in this specific case, we do not find any error, let alone any prejudice to Price. The Board
twice made a conscious effort to stop the process and reconvene – the first time in order to
ensure all evidence was recorded and the second time (on December 6, 2011) for the
purpose of restarting deliberations after being informed of technical difficulties occurring
on September 6 and 7, 2011. As the district court pointed out, no greater remedy could
occur. As it is, the record includes a transcript of testimony and other evidence submitted.
Price has not alleged or more notably has not shown how having a full transcript of
duplicate sessions of deliberations is critical to this Court’s review. We affirm the district



                                              7
court’s decision denying Price’s request that the final result be set aside because of the
malfunctioning audio equipment.

Hearing Officer

[¶17] In his second issue Price questions whether the Hearing Officer in this case violated
Wyo. Stat. Ann. § 16-3-107(k) and/or exceeded the powers of a Hearing Officer set forth
in Wyo. Stat. Ann. § 16-3-112(a) and (b). Price argues that the Hearing Officer
erroneously provided legal opinions and advice to the Board.

[¶18] Wyo. Stat. Ann. § 16-3-107(k) (LexisNexis 2013) provides in pertinent part:

              Any person representing an agency at a hearing in a contested
              case in which the agency is a party shall not in the same case
              serve as presiding officer or provide ex parte advice regarding
              the case to the presiding officer or to the body or any member
              of the body comprising the decision makers.

The statute requires that the individual serving as the hearing or presiding officer cannot
also be the representative of an agency at a hearing in which the agency is a party. That is
not the case here. The Board is not, and has never been, a party in this matter. For that
reason alone Price’s argument regarding this statute is without merit.

[¶19] Price also argues that the Hearing Officer may have violated Wyo. Stat. Ann. § 16-
3-112(a) and (b) (LexisNexis 2013), which states:

                     (a) If not otherwise authorized by law there shall
              preside at the taking of evidence in all contested cases the
              statutory agency, one (1) or more members of the body which
              comprises the agency, or an employee of the agency or an
              employee of another agency designated by the agency to act
              as presiding officer. The functions of all those presiding in
              contested cases shall be conducted in an impartial manner.
              Any officer shall at any time withdraw if he deems himself
              disqualified provided there are other qualified presiding
              officers available to act.
                     (b) Officers presiding at hearings shall have authority,
              subject to the published rules of the agency and within its
              power, to:
                     (i) Administer oath and affirmations;
                     (ii) Issue subpoenas;
                     (iii) Rule upon offers of proof and receive relevant
              evidence;


                                             8
                    (iv) Take or cause depositions to be taken in
             accordance with the provisions of this act and the rules of the
             agency;
                    (v) Regulate the course of the hearing;
                    (vi) Hold conferences for the settlement or
             simplification of the issues;
                    (vii) Dispose of procedural request for similar matters;
                    (viii) Make recommended decisions when directed to
             do so by the agency; and (ix) Take any other action authorize
             by agency rules consistent with this act.

Price argues that it was reversible error that the Board appointed County Attorney Joe M.
Baron as Hearing Officer, and also that the Hearing Officer should not have offered to
respond to legal questions posed by the Board nor should he have provided legal advice to
the Board. We disagree with Price.

[¶20] The referenced statute plainly states that a Hearing Officer was and is permitted to
make recommended decisions when asked to do so by the Board. As Hearing Officer, he
is entitled to receive evidence, regulate the course of the hearing, hold conferences, and
dispose of procedural requests or other matters. The record shows that he did just that.
He offered advice in response to questions and attempted to clarify issues for the Board’s
consideration. He even emphasized that the ultimate decision was for the Board alone to
make. There is no indication of a bias or prejudice that permeated the hearing. The
Hearing Officer was balanced in his rulings during the evidentiary hearings and admitted
all exhibits on both sides. Although the Hearing Officer commented that he had
“disagreed” with this Court in Crago v. Bd. of County Comm’rs, 2007 WY 158, 168 P.3d
845 (Wyo. 2007) (where he represented one of the parties), the Hearing Officer did
emphasize that Crago is the law and thus had to be considered and followed by the Board.
Taking the record together with our statutory guidelines, we affirm the district court’s
decision that Price’s arguments regarding the Hearing Officer are without merit.

Substantial Evidence

[¶21] Price claims that the Board’s findings are not supported by substantial evidence as
required by Wyo. Stat. Ann. § 16-3-114(c)(ii)(E) (LexisNexis 2013). Specifically, Price
takes issue with the Board’s finding that County Road 58 is a public road as defined by
Wyoming Statutes and the finding that the State Easement is an “accessible road” from
State Highway 14 to Price’s property.

[¶22] The substantial evidence standard of review applies to the agency’s evidentiary
determinations after a contested case hearing.




                                            9
              When the burdened party prevailed before the agency, we
              will determine if substantial evidence exists to support the
              finding for that party by considering whether there is relevant
              evidence in the entire record which a reasonable mind might
              accept in support of the agency’s conclusions. . . . If, in the
              course of its decision making process, the agency disregards
              certain evidence and explains its reasons for doing so based
              upon determinations of credibility or other factors contained
              in the record, its decision will be sustainable under the
              substantial evidence test. Importantly, our review of any
              particular decision turns not on whether we agree with the
              outcome, but on whether the agency could reasonably
              conclude as it did, based on all the evidence before it. Dale
              [v. S & S Builders, LLC, 2008 WY 84] ¶ 22, 188 P.3d [554] at
              561 [(Wyo. 2008)]. The agency’s conclusions of law are, of
              course, subject to de novo review. Id., ¶ 26, 188 P.3d at 561-
              62.

Tarver v. City of Sheridan Board of Adjustments, 2014 WY 71, ¶ 28, 327 P.3d 76, 86
(Wyo. 2014).

[¶23] In its final order, the Board found as follows:

              3. County Road 58 is a “public road” for the purposes of
              Wyoming Statute § 24-9-101:

                    a. County Road 58 has been designated as a County
              Road within Crook County since the early 1900s.

                     b. DE-22 shows County Road 58 crosses [Price’s]
              property in at least two separate locations.

                     c. The survey performed by [Price] conclusively
              shows that County Road 58 lies within [Price’s] land which is
              in accordance with the Commissioners’ decision in 2003, as
              affirmed by the District Court, as well as crossing [Price’s]
              land in an entirely separate location.

                     d. The map designated as Commissioners’ Exhibit 1
              also shows that County Road [58] crosses [Price’s] land.




                                             10
       e. No evidence was presented to the contrary, other
than unsubstantiated opinions from [Price] and his witness,
that County Road 58 did not cross [his] land.

       f. That [Price] can and does access his property
through the use of County Road 58 not only from Hwy 24 (on
the west), but also from the east through the use of Lytle
Creek Road No. 196 at least when traveling to and from
Hulett, Wyoming.

       g. Objectors submitted photographs which were
admitted into evidence, showing the location and condition of
County Road 58 that runs easterly from State Highway 24
(also known as Tower Road). The map, photographs and
testimony show:

              i. the existence of an accessible road leading
      from Hwy 24 east which traverses [Price’s] property;
              ii. unlocked or other openings in fences that are
      accessible to the public, including [Price];
              iii. at least 2 accessible roads from County
      Road 58 to [Price’s] headquarters as conclusively
      shown by the evidence that [Price’s] attorney was able
      to access the headquarters in his own vehicle without
      any problem from Hwy 24, across Tower Road
      (County Road 58) and state land located in Section 1,
      T52N, R65W, to where it borders [Price’s] property;
              iv. uncontroverted evidence that [Price], his
      pasture renters, his hunters, gas suppliers and manager
      are all able to access the entirety of [Price’s] ranch
      from County Road 58 through the use of trucks and
      ATVs;
              v. that no natural barriers, such as mountains,
      rivers, deep gorges, bluffs or other obstacles, exist on
      [Price’s] land which prohibit [Price] or any other
      permitted users of [Price’s] land from accessing any
      other portion of [his] land;
              vi. that [Price’s] land is accessible year round
      from County Road 58 which is also used by others
      traveling in that part of the state.

4. Access through use of the State Easement:



                              11
                     a. Attachment G to the Amended Application is a
              copy of Easement 7235 granted to [Price] by the State of
              Wyoming acting through its Board of Land Commissioners,
              (the “State Easement”) on March 3, 2006. Attachment G to
              the Amended Application was admitted into evidence as
              [Price’s] Exhibit D.
                     b. The easement according to its terms is perpetual,
              transferable and maintainable by [Price].
                     c. That the easement commences at a public road
              (Hwy 14) and continues to where it terminates at [Price’s]
              property line.
                     d. That an accessible road exists from Hwy 14 to
              [Price’s] property line that is traversed by members of the
              public, including the manager of [Price’s] property, through
              the use of various types of vehicles, including pickup trucks
              throughout the year.
                     e. That the evidence showed the existences of a road
              across the state land to [Price’s] property line.

Price argues that the Board’s findings are unsupported by the record and contrary to the
great weight of the evidence in the record. We disagree. The record that is presented on
appeal reflects that the Board’s findings are in fact supported by substantial evidence, as
we now explain.

[¶24] Price brought two witnesses to the hearing in front of the Board. First, Price’s real
estate broker J.R. Kvenild testified that he sold the property at issue in this case to Price in
1986 and has since assisted Price in acquiring additional surrounding parcels of land.
Kvenild also testified that he helped Price purchase the State Easement, and although he
had been on the property, he had not visited much at all in the last four years. Kvenild
offered his opinion that it was not possible to drive a vehicle through the State Easement
because of a steep ravine. He also testified, however, that regarding the State Easement,
he did not personally know exactly where the State’s property ended and where Price’s
property began. He also characterized County Road 58 as “old two track, unmaintained.”
On cross-examination, however, Kvenild admitted that County Road 58 that connects to
Lytle Creek Road travels through Price’s property, and that County Road 58 also crosses
Price’s property. Kvenild also testified that he traveled County Road 58 and in fact used it
to access Price’s land.

[¶25] Price then testified himself. He testified that he had only traveled on County Road
58 on an ATV and that he would not consider County Road 58 to be an “actual road.” He
admitted that County Road 58 had not changed since 2003 when his previous application
was denied. Regarding the State Easement, Price stated that he could not use it because it
was too steep and contained a lot of difficult terrain but that he “believed” the easement


                                               12
went from Highway 14 to the border of the ranch. Price testified that his preferred route
was the Garman Road.

[¶26] On the other side, Wayne Garman testified for the Appellees. A life-long resident
of Crook County, Garman testified that he was intimately familiar with Price’s land as a
result of growing up on a neighboring ranch but mostly because he and his brother have
leased Price’s land since 1989. Garman testified that County Road 58 traverses the
boundaries of Price’s land and that there is no terrain to prevent someone from coming
onto the ranch where County Road 58 touches the land. Garman testified that he could
reach the land using County Road 58 as could “pasture people,” hunters, campers, and the
propane delivery servicemen. Furthermore, Garman indicated that residents of a
subdivision northeast of the ranch used County Road 58 to get from Highway 24 to Lytle
Creek Road and back. According to Garman, Price traversed County Road 58 in his
suburban.

[¶27] Garman also testified regarding the State Easement and indicated that Price’s
property was accessible via Highway 14 with the easement. Garman stated that he has
never had an issue accessing the ranch in that manner and in fact had to put up a sign to
prevent members of the public from using the easement road. According to Garman, a
ravine does exist but it does not have to be crossed – instead, the road crosses a draw to
avoid the ravine.

[¶28] Along with testimony, the Board also considered the matter of convenience and
whether County Road 58 and State Highway 14 provide Price with reasonable and
convenient access to his property. Regarding convenience, we have stated that

             “[C]onvenience and reason should prevail in the
             establishment of roads.” [J & T Properties, LLC v. Gallagher
             (In re Establishment of a Private Roadway to Real Prop.),
             2011 WY 112 ¶ 15, 256 P.3d 522, 525 (Wyo. 2011)], citing
             Lindt v. Murray, 895 P.2d 459, 462 (Wyo. 1995). The private
             road statutes are intended to provide “a readily available,
             economically affordable, and time efficient method to obtain
             a means of access to property.” J & T Properties, ¶ 15, 256
             P.3d at 525, quoting Martens v. Johnson County Board of
             Comm’rs, 954 P.2d 375, 380 (Wyo. 1998). We said, “[b]y
             interpreting the private road statutes to allow an applicant to
             use other means of legal access together with a private road to
             cure his access problem, we fulfill the policies of reason,
             convenience and economic affordability.” J & T Properties,
             ¶ 15, 256 P.3d at 525.




                                            13
Altaffer v. Cross (In re Cross), 2013 WY 79, ¶ 13, 304 P.3d 932, 936 (Wyo. 2013).
Expounding upon this discussion, we have also said:

             The convenience factor must, however, be applied
             judiciously. Wyo. Const. Art. I, § 32 mandates that in order
             to constitutionally justify a private condemnation of
             property, there must be necessity. Consequently, the
             inconvenience which would justify a private taking must be
             substantial. In fact, it must be so substantial it is functionally
             equivalent to necessity. Our case law bears this out. We
             have never approved a private road simply on the basis that
             it would be more convenient to the applicant than another
             already existing means of access. Rather, only when the
             record contains evidence showing the alternative access is
             obviously impractical and unreasonable has this Court
             approved the creation of a private road under the statutes.

Crago, ¶ 17, 168 P.3d at 854 (emphasis added).

[¶29] In determining this issue, we take into consideration the testimony given by
Kvenild, Price, and Garman as well as the evidence that Price’s property has legal access
to County Road 58 in several locations and to Wyoming Highway 14 from the State
Easement. Our review of the record demonstrates that Price simply did not satisfy his
burden of establishing that there would be substantial inconvenience if he was not granted
a private road over Appellees’ lands. The Board determined that Price failed to carry his
burden and found that Price failed to present any evidence regarding the monetary costs
related to the claims of inconvenience. The Board stated:

             12. [Price’s] property has legal access to County Road 58 in
             several locations and to Wyoming Highway 14 on the
             easement across the school section.

             13. Crook County has many miles of maintained and
             unmaintained county roads and many of the maintained miles
             are at times impassable from different weather conditions
             impassable or nearly impassable, and not convenient. The
             inconvenience that has been presented by [Price] is not
             enough to be a significant inconvenience that would require
             the Board to grant another access from [his] property to a
             public road.

             14. One of the major determinations of convenience is the
             monetary issue. [Price] has not presented sufficient evidence


                                              14
             of inconvenience or the monetary cost of the inconvenience
             or the cost to build a road to a public road.

             15. [Price] has more direct legal access from his land and
             headquarters to State Highway 14 across the State Easement
             then [sic] the road set forth in his application that he has
             applied for across the Objector’s property or to County Road
             58. That is the most direct and convenient road to [Price’s]
             headquarters.

[¶30] In fact, no evidence was presented regarding how much it would cost to improve
the existing roads on the ranch which connect to County Road 58 or why using the State
Easement was otherwise impracticable. Evidence presented showed that both County
Road 58 and the State Easement were accessible from roads on Price’s ranch and that they
connected with convenient public roads and were routinely used for ranch business by
members of the public, as invitees, using a variety of vehicles.

[¶31] We conclude that the Board’s decision to deny Price’s application is supported by
substantial evidence. Relevant evidence pervades the entire record which a reasonable
mind might accept in support of the agency’s conclusion and thus we must affirm the
Board.

Collateral Estoppel

[¶32] Price disagrees with the Board’s ruling that the doctrine of collateral estoppel
barred Price’s application for a private road.

[¶33] We recently stated that

                    The application of preclusion doctrines such as res
             judicata and/or collateral estoppel involves questions of law.
             Goodman v. Voss, 2011 WY 33, ¶ 23, 248 P.3d 1120, 1127
             (Wyo. 2011). We review an agency’s conclusions of law de
             novo and affirm only if the agency’s conclusions are in
             accordance with the law. Moss v. State ex rel. Wyo. Workers’
             Safety & Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo.
             2010); Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 22, 188
             P.3d 554, 561 (Wyo. 2008).
                    ....

                   . . . [C]ollateral estoppel prohibits re-litigation of
             formerly litigated issues. Given the limited authority of
             governmental agencies, collateral estoppel is often more


                                            15
             appropriate for application in the administrative context.
             Tenorio v. State ex rel. Wyo. Workers’ Comp. Div., 931 P.2d
             234, 238 (Wyo. 1997).

Tarver, ¶¶ 10-11, 327 P.3d at 80.

[¶34] We decline to address whether or not the doctrine of collateral estoppel bars Price’s
second application for a private road. Given our discussion regarding substantial
evidence, this Court’s decision on appeal is determinative that County Road 58 qualifies
as a public road. Therefore, whether or not collateral estoppel applies is moot.

                                    CONCLUSION

[¶35] We affirm the Crook County Board of Commissioners’ decision to deny Price’s
application for a private road. We conclude that substantial evidence exists such that the
application is properly denied, and that the actions of the Board were not arbitrary or
capricious. Furthermore, the record does not establish the high level of inconvenience
required to establish necessity.

[¶36] This Court further affirms the district court’s decision denying Price’s request that
the final result be set aside because of the malfunctioning audio equipment. We also
conclude that the Hearing Officer did not act with impropriety.




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