Mr. Tolley’s practice initially focused on the preparation of title opinions covering lands in Colorado, Wyoming and North Dakota. As his practice has grown Mr. Tolley has expanded his practice to include estate planning and civil litigation.

A “Momentous” Supreme Court Term

The United States Supreme Court was back in action on Monday, October 2, 2017, and is now moving into what Justice Ruth Bader Ginsburg says is going to be a “momentous” upcoming term. This will be the first full term for Justice Neil M. Gorsuch, who replaced Justice Scalia, providing an extended look at his jurisprudence. The upcoming term also promises to showcase cases touching several hot button issues. Here is a quick overview of some of the notable cases coming before the Supreme Court.1

Gill v. Whitford, No. 16-1161, which is being argued before the Supreme Court on Tuesday, October 3, 2017, could have important impacts in how elections are conducted. In this case, the Supreme Court is being asked to rule that extreme political gerrymandering violates the U.S. Constitution. The Supreme Court has never struck down a voting map on the ground that politics overly impacted how it was drawn, but Justice Kennedy has expressed uneasiness about this issue in the past. The decision in this case has the potential to not only reshape voting maps, but in so doing, shift the political landscape.

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Wyoming Supreme Court Justices Disagree: Were Tax Assessments of Minerals Constitutional?

As noted in a prior blog post, Wyoming’s Supreme Court Justices agree most of the time. In fact, in 2016 more than 95% of the Court’s orders and opinions were unanimous. This post highlights a recent disagreement between the members of the Wyoming Supreme Court in the case of Anadarko Land Corp. f/k/a Union Pacific Land Resources Corp., and Three Sisters, LLC v. Family Tree Corporation, 2017 WY 24, 389 P.3d 1218 (Wyo. 2017) concerning a 1911 tax assessment that changed--or did it--the ownership of minerals in 2017.

This case features the appeal of a district court decision upholding the validity of a 1911 Laramie County tax assessment against minerals owned by Anadarko Land Corporation’s (“Anadarko”) predecessor-in-interest1. Anadarko’s predecessor, the Union Pacific Railroad, acquired the mineral interests at issue in a Patent issued by the United States in 1901. In 1911, Laramie County assessed taxes on these unproduced minerals. Anadarko’s predecessor did not pay the assessed taxes, and Laramie County put the mineral interests up for bid at a tax sale. When no bids were made for the mineral interests, Laramie County acquired the minerals and then, by a tax deed in 1919, sold the mineral interests to Iowa Land & Livestock Company. At this point, two divergent chains of title emerged. One chain derived from Anadarko’s predecessor and the other from the Laramie County tax sale

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What Happens After the Nomination? How a Nominee becomes a Supreme Court Justice

On January 31, 2017, President Trump nominated Judge Neil M. Gorsuch, a Coloradan and judge on the Tenth Circuit Court of Appeals (“Tenth Circuit”), to fill the open seat on the United States Supreme Court that has been empty since Justice Antonin Scalia died on February 13, 2016.i   Judge Gorsuch was nominated to the Tenth Circuit by President George W. Bush on May 10, 2006, and confirmed by the Senate on July 20, 2006.  Prior to serving on the Tenth Circuit, Judge Gorsuch earned degrees from Columbia University, Harvard Law School and Oxford University, and he also served as a law clerk for the only other Coloradan who has served on the Supreme Court, Associate Justice Byron R. White and the still-serving Associate Justice Anthony M. Kennedy.ii

While Judge Gorsuch’s legal and personal history are going to be widely discussed over the coming weeks and months, what else happens after the nomination?  How does a nominee become a United States Supreme Court Justice?iii

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Wyoming Supreme Court Justices Disagree: An Unusual Circumstance

Wyoming’s Supreme Court Justices seem to agree most of the time.  In fact, in 2016 more than 95% of the Court’s orders and opinions were unanimous.  The most recent disagreement is in Cheyenne Newspapers, Inc. v. The Board of Trustees of Laramie County School District Number One, 2016 WY 113, 2016 WL 6995555 (Wyo. 2016).

This case features a dispute between Cheyenne Newspapers, Inc., doing business as the Tribune-Eagle (“Tribune-Eagle”), and Laramie County School District No. 1 (“School District”) regarding a public records request.  The Tribune-Eagle submitted a request February 11, 2014, to inspect all emails to, among and from school board members since December 1, 2013, regarding school board topics.  This required the School Board to search not only the School District’s computer system, but also the personal email accounts of the school board members, because school board members use their personal email accounts to conduct school board business.  After completing the search the School District informed the Tribune-Eagle that the requested records could be obtained upon the payment of a $110.  The fee was for the clerical staff time and professional personnel time required to process the request.  The Tribune-Eagle refused to pay the fee and filed a declaratory judgment action seeking a ruling that the Wyoming Public Records Act (the “Act”) does not allow a government entity to charge for access to electronic records when the records request is for inspection only and not copying of the records.  The District Court found the fees to be allowable under the Act and also to be reasonable.  The Wyoming Supreme Court affirmed in a 3-2 split decision.

In interpreting the Act (specifically, Wyo. Stat. Ann. § 16-4-202(d)) the majority held that “[w]hether the request for electronic records is framed as a request to inspect or as a request for a copy, if the only way for the custodian to provide the record is to produce a copy of it, the cost of producing that copy is to be borne by the party making the request.”  Cheyenne Newspapers, Inc., 2016 WY 113 at ¶ 14.  Further, “the limitation on the costs charged is that they be the reasonable costs of producing a copy.”  Id. at ¶ 32.

The Tribune-Eagle and the dissenting members of the Court raised several issues in response.  One such issue is the possible “chilling effect” the majority decision will have on public access to government records.  Justice Davis writing for the dissent stated:

Although imposition of a fee for a member of the public to inspect public records is not the same as denying access, imposing a cost for inspection could limit the access the Act was intended to provide.  While I have no reason to question the district’s good faith, and can accept that it only wants to pass on the cost of responding to a request for electronic records, there can be no doubt that such fees could be used to discourage access.

Id. at ¶ 41.  The Tribune-Eagle also argued that allowing “reasonable costs,” beyond actual duplication costs, could lead to a situation where costs for the same type of records request could vary dramatically from one governmental entity to the next due solely to the efficiency of the entity’s employees.  Also, the first party to request information will bear the entire cost of a record request, while subsequent parties requesting that same information will pay only limited duplication costs.  The majority notes these concerns are policy concerns that only the Wyoming Legislature can correct by amending the Act.

Cheyenne Newspapers, Inc. is interesting not only because it showcases a rare instance of disagreement on the Wyoming Supreme Court, but also because it touches on several issues of recent import including: (i) use of personal email for official government business; (ii) restrictions on access to government records, whether intentional or unintentional; and (iii) how laws may need to adapt to a world where records are increasingly being kept in electronic formats.  The full text of the opinion can be found on the Wyoming Supreme Court’s website at http://www.courts.state.wy.us/Supreme/Opinions.

 

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Wyoming Tangles With BLM Over Wild Horses

What is the “law of the land” and how should it be enforced? These questions drive the interplay between state and federal governments, particularly in the Rocky Mountain West. This is especially true when you consider that the federal government owns vast areas of the surface of Colorado (35.9%), Wyoming (48.1%) and the other 10 public land states as well as 700 million acres of federal minerals throughout the U.S. See “Federal Land Ownership: Overview and Data,” by the Congressional Research Service dated December 29, 2014.i This state/federal tension regularly leads to conflicts over oil and gas, mining, environmental regulation … and wild horses?

The Wild Free-Roaming Horses and Burros Act was enacted by Congress in 1971 to protect wild horses and burros from “capture, branding, harassment, or death” and, significantly, declares wild horses and burros to be an “integral part of the natural system of the public lands.” The law was enacted in response to a campaign led by “Wild Horse Annie” and has proved to be one of the most difficult management challenges for the Bureau of Land Management (“BLM”). Caught between wild horse lovers, state governments and ranchers, the BLM is spending close to $75 million a year, primarily to feed and care for the bulk of the “wild” horse population off the range in leased pasture. BLM recently testified that there are 67,000 WHB in 10 states and 47,000 are in leased pasture because the population is 2.5 times more than the range can sustain.ii 

On August 21, 2014, the State of Wyoming wrote to the Secretary of the Interior and the Acting Director of the Bureau of Land Management (“BLM”) demanding the BLM take action to remove excess wild horses from seven BLM herd management areas (“HMAs”) in southwestern Wyoming. After what it considered to be an inadequate response by the BLM, Wyoming filed suit on December 8, 2014, in Federal District Court to force the BLM to take immediate action to bring the numbers down to the HMA carrying capacity. On April 21, 2015, the District Court dismissed the State’s claims, and now the Tenth Circuit Court of Appeals has affirmed that decision. See Opinion in State of Wyoming v. United States Department of the Interior, et al. Case No. 15-8041 filed October 11, 2016 (10th Cir.). The question the Tenth Circuit addressed was “whether … Section 3 [of the Wild Free-Roaming Horses and Burros Act (the “Act”)] obligated the BLM to gather or otherwise remove excess wild horses from each of the seven HMAs once it learned that the wild horse population in each of those HMAs exceeded the upper limit of their respective AMLs [“appropriate management level”].” Id. at page 9.

In construing the provisions of the Act, the Tenth Circuit held:

As noted, the Act does not define the phrase “appropriate management level” and thus does not equate it with any requirement to remove excess animals from a particular HMA. Nor does the BLM itself define the phrase as equivalent to a determination that removal is necessary. Further, and most importantly, the language of Section 3, as discussed above, clearly requires both a determination by the BLM that “an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals ….” 16 U.S.C. § 1333(b)(2) (emphasis added). Because only the first of these determinations has been made, the BLM is under no statutory duty to remove animals from the seven HMAs at issue. Moreover, there is nothing in the statute that obligates the BLM to make an immediate determination regarding the second requirement.

Id. at pages 14-15. Thus, until the BLM determines there is both an excess of horses and action is necessary to remove those excess animals, the State of Wyoming cannot force the BLM to act.

In a statement issued after the Tenth Circuit released its opinion, Wyoming Governor Matt Mead said, “The BLM is not managing wild horse populations as required … Wyoming wildlife and wild horses are treasured assets. Mismanagement adversely affects all species and rangelands necessary for their health and survival.” See “In major decision, 10th Circuit rules Wyoming can’t force BLM to remove wild horses,” by Arno Rosenfeld, Casper Star-Tribune dated October 11, 2016.iii While the State of Wyoming considers its options, several other cases are pending in Wyoming, at the Tenth Circuit and in other western states, including Nevada which has the largest population of wild horse, regarding the proper management of wild horse populations on public lands.

The tangle between state and federal governments continues amid an effort to determine the “law of the land.” The Tenth Circuit’s Opinion in the above case can be accessed on its website at https://www.ca10.uscourts.gov/opinion/search by entering the case number “15-8041” in the search field. Links to additional discussion of the Tenth Circuit’s Opinion and issues surrounding wild horse management can also be found at the links below.iv The Tenth Circuit also recently issued an opinion seeking review of the BLM’s decision to remove wild horses from public lands in Wyoming. That case can be accessed on the Tenth Circuit Court’s website listed above by entering the case number “15-8033”.


i www.fas.org/sgp/crs/misc/R42346.pdf
ii http://www.blm.gov/wo/st/en/prog/whbprogram/history_and_facts/quick_facts.html
iii http://trib.com/lifestyles/recreation/in-major-decision-th-circuit-rules-wyoming-can-t-force/article_0a3c5700-e59e-520e-aa91-c053b3c0f7d5.html
iv “Wild Horses Couldn’t Drag the Government to Act,” by Noah Feldman, Bloomberg View dated October 14, 2016 accessed at https://www.bloomberg.com/view/articles/2016-10-14/wild-horses-couldn-t-drag-the-government-to-act and “Success Spoils a U.S. Program to Round Up Wild Horses,” by Dave Philipps, New York Times dated October 14, 2016 accessed at http://www.nytimes.com/2016/10/15/us/wild-horses-us-west.html

 

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Wyoming Trespass Statutes Survive Constitutional Challenge

What do you do when someone enters your property to collect information about its status with the intent to convey that information to a governmental or regulatory agency without your permission? In Wyoming, you contact your local legislator.

In 2015, the Wyoming legislature enacted two statutes, Wyo. Stat. §§ 6-3-414 and 40-27-101 (the “Trespass Statutes”), in an attempt to regulate the issue of “Trespass to Collect Resource Data.” These statutes were deemed necessary to deter individuals from trespassing on private lands to collect resource data, because often those individuals could not be charged with trespass under the existing criminal statutes. Thus, the Trespass Statutes imposed criminal penalties and civil liability for the unauthorized collection or recording of information relating to land and land use, and the submission of that information to a governmental agency. The Western Watersheds Project, National Press Photographers Association, National Resource Defense Council, People for the Ethical Treatment of Animals and Center for Food Safety (collectively, the “Challengers”) challenged the constitutionality of Wyo. Stat. §§ 6-3-414 and 40-27-101 in the United States District Court for the District of Wyoming.

After briefing and oral argument, and a decision of the Court that questioned, in part, the constitutionality of the two statutes, the Wyoming legislature amended the statutes in 2016. As amended the statutes generally provide:

The revised statutes still define “resource data” as “data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species,” … The new statutes clarify they apply only to entry onto private lands … and no longer require data be submitted or intended to be submitted to a governmental agency … [and] [t]he definition of “collect” has been modified to mean “to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form and the recording of a legal description or geographical coordinates of the location of the collection.” (citations omitted)

See Order Granting Motion to Dismiss dated July 6, 2016 (D. Wyo.) at p. 5. After the 2016 amendments, the Challengers amended their complaint to challenge the constitutionality of the amended statutes. However, the Court dismissed.

In summarizing its holding, the Court notes “[Challenger’s] First Amendment right to create speech [by gathering resource data] does not carry with it an exemption from other principles of law, or the legal rights of others.” Order at p. 13. Specifically, “[Challenger’s] desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy.” Id. “The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights.” Order at p. 26.

The Challengers have yet to determine if they will appeal the Court’s decision. So, for now, the Court’s Order stands and both Wyo. Stat. §§ 6-3-414 and 40-27-101 remain the “law of the land.” The District Court’s Order can be accessed on its website at http://www.wyd.uscourts.gov/htmlpages/docs.html.

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University of Wyoming Enhanced Oil Recovery Institute Launches New Interactive Data Platform

The University of Wyoming’s Enhanced Oil Recovery Institute (“EORI”) recently made available to the public a new Interactive Data Platform (“IDP”). The IDP allows users to display and identify oil and gas information from the Wyoming Oil and Gas Conservation Commission, the Wyoming State Geological Survey, the Wyoming Geological Association, and the Wyoming Pipeline Authority, using an interactive map. Additionally, the IDP allows users to search by location, field name and/or geological formation. The IDP is just the latest resource from the EORI.

The EORI was created by the Wyoming State Legislature to work with the State of Wyoming and Wyoming energy producers to recover stranded oil in depleted oil reservoirs as rapidly, responsibly and economically as possible. The EORI estimates that additional recovery of oil from Wyoming’s depleted oil fields using advanced enhanced oil recovery technology could total more than 1 billion barrels of additional production over the next 20 years. The EORI is primarily focused on the application of new technology through field demonstrations, and supports additional development work to support commercial-scale implementation. The EORI also frequently collaborates with the University of Wyoming’s Carbon Management Institute and the Center for Fundamentals of Subsurface Flow.

The IDP is an outgrowth of the work being done by the EORI. As a web based application, the IDP includes real-time, updated data, which will allow the application to improve and grow over time. Where possible the IDP directs users to the original sources of the information contained in the online application. If you are interested in learning more about the EORI, or about the other projects the EORI is currently focused on, it can be found online at http://www.uwyo.edu/eori/. The IDP can be accessed at http://eori.wygisc.org/

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Wyoming State Geological Survey Developing Next Generation of Oil and Gas Map of Wyoming

Despite the fact that the U.S. Bureau of Land Management lease sale covering lands in Wyoming conducted on May 5, 2015, brought in a paltry $688,000, which is the lowest total since August 2009, the Wyoming State Geological Survey (“WSGS”) has begun the process of developing the next generation of the Oil and Gas Map of Wyoming.

The Oil and Gas Map of Wyoming is one of the most popular products published by the WSGS. No wonder, as Wyoming currently ranks fifth in the production of natural gas and eighth in oil production. The current version of the map, which can be downloaded from the WSGS website or purchased in a large printed format, contains information including: boundaries of producing and abandoned oil fields in Wyoming; producing formations; field designations; refinery and gas plant locations and capacities; pipeline sizes, operators and locations; basin locations; extent of shale-bearing rocks; and railroad locations.

For the next generation of the map, in addition to updating the information described above, the WSGS plans create an online version of the map, which will allow users to display and interact with various layers of the information contained in the map. More information about the Oil and Gas Map and the other projects of the WSGS can be found online at http://www.wsgs.wyo.gov/.

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