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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37186
BRIAN P. SOPATYK,
Petitioner-Appellant-Cross Respondent, )
LEMHI COUNTY, LEMHI COUNTY
BOARD OF COMMISSIONERS, LEMHI
COUNTY CLERK-RECORDER, and
DOES 1-5, in their official and individual
Boise, August 2011 Term
2011 Opinion No. 114
Filed: November 9, 2011
Stephen W. Kenyon, Clerk
Appeal from the Seventh Judicial District of the State of Idaho, Lemhi County.
Hon. Joel E. Tingey, District Judge.
The decision of the district court affirming the validation of Anderson Creek
Road is affirmed. No attorney’s fees are awarded. Costs are awarded to
Respondent Lemhi County.
Saetrum Law Offices, Boise, for Appellant. Rodney R. Saetrum argued.
Lemhi County Prosecuting Attorney, Salmon, and Givens Pursley, LLP, Boise,
for Respondents. Christopher H. Meyer argued.
W. JONES, Justice
I. NATURE OF THE CASE
Brian Sopatyk petitions for judicial review of the Lemhi County Board of
Commissioners’ decision to validate Anderson Creek Road, which runs the length of his
property. He contends the road never became public and, if so, was abandoned. He also
maintains that the validation was an unconstitutional taking, that it was error for the road
easement to be validated at fifty-feet wide, that one of the commissioners was biased against
him, that the road illegally invades federal public lands, and that the Board of Commissioners
failed to explain why the validation is in the public interest. This Court affirms the validation
decision because the road became public by legislative declaration in the late 1800s and was
II. FACTUAL AND PROCEDURAL BACKGROUND
Gibbonsville, Idaho, is located in Lemhi County, where the central portion of the state
juts into Montana. The region was originally public federal land. In the 1860s and 1870s,
prospectors discovered gold around what later became Gibbonsville, causing pioneers to begin
flooding the area in 1876. They settled Gibbonsville where Anderson Creek runs south into
Dahlonega Creek before Dahlonega flows west out of town. Two years later, in 1878, mineral
prospectors formed a mining district and a committee to draw up and file a plat for the
Gibbonsville townsite with the district. At some point, a road providing access to various mining
claims had been constructed running north-south, parallel to Anderson Creek, as the miners’ plat
and an accompanying description identify a street running north up along Anderson Creek as
Main Street. Today, the road is known as Anderson Creek Road (“ACR”). Over the years, the
public was generally able to use the road, but it has deteriorated and is now overgrown with
brush in some places.
Among the mineral claims that early prospectors filed were two long and narrow gold
placers along Anderson Creek, one in 1879 and the other in 1881. 1 These placers were patented
as the Anderson Creek Consolidated Placers Nos. 1 and 2 (“the Anderson Placers”) in 1897. 2
Brian Sopatyk, Appellant, purchased the Anderson Placers in pieces between 1994 and 1996, and
now owns an area of over sixty-six acres. Except for certain spots where it drifts partially into
the neighboring Salmon National Forest, ACR runs most of the length of Sopatyk’s property.
In 1998, the Lemhi County Board of Commissioners (“the Board”) validated ACR as a
public road. Sopatyk then filed a lawsuit against the County seeking a writ of prohibition. The
district court ordered another hearing before the Board, which occurred in 2004. The Board
unanimously validated ACR, finding that the road had been made public by territorial legislative
declaration in 1881, an order of the County Commissioners in 1892, prescription, common law
dedication, and under R.S. 2477, a federal statute allowing local and state governments to
A party that locates and files a claim may extract minerals, but does not own the land itself until the claim is
patented. James D. Parriott, Mining Rights in Public Land, 34 TEX. L. REV. 892, 901 (1956).
“A placer is a superficial deposit, usually of auriferous (goldbearing) gravels, found in the beds of ancient rivers or
valleys.” Carl J. Mayer, Comment, The 1872 Mining Law: Historical Origins of the Discovery Rule, 53 U. CHI. L.
REV. 624, 625 n.3 (1986). Placer claims contrast with lode claims, which are for veins and deposits that have a
defined formation underground. Id.
establish public roads on federal lands. After the Board’s decision, Sopatyk requested and was
granted another hearing before the Board in part to present evidence of bias on the part of
Commissioner Joseph Proksch, who was Chairman at the time of the 2004 hearing and served as
the hearing officer. After convening a third time to publicly deliberate the matter, this time
without Proksch, the Board unanimously affirmed its decision and found that Commissioner
Proksch was not biased.
Sopatyk petitioned for judicial review in the case, 3 and the district court affirmed on the
grounds that ACR was legislatively declared a public road in 1881 and that there had been a
common law dedication when the miners committee filed a plat with the Mining District in 1878.
Sopatyk appealed to this Court, where he argues that the road has not become public under any
of the methods described in the Board’s order and that, even if the road did become public, it has
since been passively abandoned. He also contends that validating the road was an
unconstitutional taking, it illegally intrudes on Forest Service land, Commissioner Proksch was
biased against him, and the Board did not properly examine whether validating ACR was in the
III. ISSUES ON APPEAL
Whether ACR is a public road under R.S. 2477?
Whether the County passively abandoned ACR prior to 1963?
Whether validating ACR would be an unconstitutional taking?
Whether the Board failed to determine whether validating ACR was in the public interest
under I.C. § 40-203A?
Whether the County exceeded its authority by validating a fifty-foot-wide roadway?
Whether the Board exceeded its authority by validating a road that intrudes onto federal
Whether a Commissioner’s alleged bias violated Sopatyk’s statutory rights under I.C. §
Whether either party is entitled to attorney’s fees on appeal?
State records indicate that Sopatyk filed a petition for judicial review in CV-98-266, the case that he originally
initiated with a petition for a writ of prohibition. Further, the district court’s memorandum decision appears under
the State’s register of actions for the same case. Nonetheless, a separate case number, CV-07-402, appears on all of
the documents in the record for this case, including Sopatyk’s petition for judicial review and the memorandum
decision. He also paid a separate filing fee in this case. It therefore appears that Sopatyk correctly filed a new
petition separate from his preexisting litigation to pursue judicial review in this case. See Cobbley v. City of Challis,
143 Idaho 130, 133, 139 P.3d 732, 735 (2006) (“[A] petition for judicial review of a road-validation decision of a
local governing board is a distinct form of proceeding and cannot be brought as a pleading or motion within an
underlying civil lawsuit.”).
IV. STANDARD OF REVIEW
On appeal from a validation decision in which the district court acted in an appellate
capacity, this Court independently reviews the County record. Homestead Farms, Inc. v. Bd. of
Comm’rs, 141 Idaho 855, 858, 119 P.3d 630, 633 (2005). Idaho Code section 40-208 governs
judicial review of validation proceedings. Floyd v. Bd. of Comm’rs, 131 Idaho 234, 238, 953
P.2d 984, 988 (1998). It provides that this Court may reverse or modify the County’s decision if
the appellant’s substantial rights have been prejudiced because the County’s decisions are:
In violation of constitutional or statutory provisions;
In excess of the statutory authority of the commissioners;
Made upon unlawful procedure;
Affected by other error of law;
Clearly erroneous in view of the reliable, probative and substantial
information on the whole record; or
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
I.C. § 40-208(7). This Court will not substitute its judgment for that of the County as to the
weight of the evidence on questions of fact. Id. It will uphold the County’s findings unless they
are unsupported by substantial competent evidence. State Dep’t of Health & Welfare v. Roe, 139
Idaho 18, 21, 72 P.3d 858, 861 (2003).
ACR Is a Public Road Under R.S. 2477
Section 8 of the Mining Act of 1866 provided: “The right of way for the construction of
highways over public lands, not reserved for public uses, is hereby granted.” An Act Granting
the Right of Way to Ditch and Canal Owners over the Public Lands, and for Other Purposes, ch.
262, § 8, 14 Stat. 251, 253 (1866) (repealed 1976). This provision is more popularly known as
R.S. 2477 due to its subsequent codification in the Revised Statutes as R.S. § 2477 (1873). The
parties agree that, prior to July of 1897, when Sopatyk’s predecessors in interest obtained a
patent for the Anderson Placers, his land was federal property. Thus, if ACR became a public
road under R.S. 2477, it must have occurred before July of 1897.
This Court has held that R.S. 2477 was a standing offer by the federal government to
grant rights-of-way on public land to the states and that it can be an independent vehicle for
creating a public road if there is “some positive act or acts on the part of the proper public
authorities clearly manifesting an intention to accept such grant with respect to the particular
highway in question.” Farrell v. Bd. of Comm’rs, 138 Idaho 378, 384, 64 P.3d 304, 310 (2002)
(quoting Kirk v. Schultz, 63 Idaho 278, 283, 119 P.2d 266, 268 (1941)). This standard is “more
lax than the requirements set forth in the state road creation statute.” Id. at 384, 64 P.3d at 310.
In Farrell, this Court found R.S. 2477 satisfied because there was an entry in the County
Commission’s minutes log from 1901 expressly accepting a dedication of the disputed road. Id.
In this case, by contrast, there is no order or minute entry by the Board or any other order
by a public authority accepting ACR as a public road. In 1878, however, a committee of local
miners filed a plat with the mining district creating a road along Anderson Creek. The County
asserts that even though the miners committee was an informal body, the plat is a positive act by
a proper public authority for R.S. 2477 purposes because “[t]his is how things were done on
The County erred as a matter of law by ruling that the miners committee could be a
“public authority” with the power to create state rights-of-way on federal lands. There appears to
be no legal authority suggesting that an informal, apparently unelected committee is empowered
by state law to file plats creating public streets. This is especially true in light of the fact that
years before the miners committee was formed, the Territorial Government had already created
Lemhi County and its Board of Commissioners, which would have been the proper public
authority for declaring roads in Gibbonsville. An Act Creating and Organizing the County of
Lemhi, §§ 1, 3–4, Laws and Resolutions Passed by the Fifth Legislative Assembly of the Terr. of
Idaho 734, 734–35 (1869).
State law governs the manner in which a road on federal property becomes public under
R.S. 2477. Galli v. Idaho Cnty., 146 Idaho 155, 160, 191 P.3d 233, 238 (2008); accord Standage
Ventures, Inc. v. Arizona, 499 F.2d 248, 250 (9th Cir. 1974); United States v. Pruden, 172 F.2d
503, 505 (10th Cir. 1949); Smith v. Mitchell, 21 Wash. 536, 540, 58 P. 667, 668 (1899) (“[Under
R.S. 2477,] a highway may be established across or upon such public lands in any of the ways
recognized by the law of the state in which such lands are located . . . .”). This includes
territorial laws relating to road creation. Galli, 146 Idaho at 160, 191 P.3d at 238.
Apparently, to help ensure that pioneers could access and settle Idaho’s vast undeveloped
areas, in 1881, the Territorial Legislature enacted legislation providing: “All roads or highways
laid out or now traveled, or which have been commonly used by the public . . . in the several
counties of this Territory, are hereby declared county roads.”
An Act Regulating Roads,
Highways, and Public Thoroughfares in Idaho Terr., § 1, Gen. Laws of the Terr. of Idaho 277,
277–78 (repealed 1885). In other words, “all roads, trails, streets and thoroughfares, used as
such, were highways.” Kosanke v. Kopp, 74 Idaho 302, 305, 261 P.2d 815, 816 (1953) (referring
to An Act Concerning Roads, Highways, Trains, and Public Thoroughfares, § 1, Compiled and
Rev. Laws of the Terr. of Idaho 677, 677 (amended 1881), a virtually identical earlier
To satisfy the 1881 law, the use must be regular, not casual or desultory. Kirk v. Schultz,
63 Idaho 278, 282–84, 119 P.2d 266, 268–69 (1941). When determining if the public is using a
road, direct evidence is not required, but “there must be sufficient circumstantial evidence to
support any inferences.” Galli, 146 Idaho at 160, 191 P.3d at 238.
There is substantial evidence that ACR existed in 1881. In 1878, a miners committee
filed a plat depicting a seventy-five-foot-wide road labeled “Main Street” going north, flanked by
numbered lots on each side, and intersecting with two other streets running east-west. The
accompanying plat description states that the road up Anderson Creek was to be called Main
Street and was “to be left open and persons taking lots are to appoint a committee to see that the
said roads are made and kept open and passable.” Books and newspaper reports in the record
state that Main Street received its current name around the turn of the twentieth century, due in
part to the fact that placer mining washed away a section of the road along with the buildings
next to it in 1898. The road was likely repaired, as an 1899 map, a 1907 U.S. Forest Service
map, and a 1913 U.S. Geological Survey map all show a road running north along Anderson
Further, there is also substantial evidence from which the Board could infer that the
public commonly used ACR in 1881. A photograph dating to 1878 depicts two roads lined with
structures intersecting in the center of Gibbonsville, one of which was undoubtedly ACR.
Published historical accounts included in the record note that most of the mineral deposits around
Gibbonsville had been found by the end of 1877, including a number of claims upstream from
town along Anderson Creek. A deed specifically indicates that by 1881 at least four mining
claims were located adjacent to or very near ACR along its whole length. It was reasonable for
the Board to validate ACR because it was open and commonly used by the public in 1881.
There Is Substantial Evidence that the County Did Not Passively Abandon
Anderson Creek Road
Sopatyk responds that, even if ACR did become a public road, it was later passively
abandoned. 4 He states that there is no evidence that the road had been used or maintained at all
before the 1960s. 5 Evidence in the record shows that by 1937, the County did not include ACR
on the county highway maps. Sopatyk also offers two blurry aerial photographs that seem to
show that ACR was no longer clearly defined by the end of the 1950s.
Before 1963, the relevant statute provided: “A road not worked or used for the period of
five years ceases to be a highway for any purpose whatever.” Rev. Stat. of Idaho Terr. § 852
(1887) (repealed 1963). 6 To establish abandonment, the challenger must show both that the road
was not maintained and that it was not used for the statutory period. Taggart v. Highway Bd. for
N. Latah Cnty. Highway Dist., 115 Idaho 816, 817, 771 P.2d 37, 38 (1988). “As to the level of
use required to prevent a finding of abandonment, a showing of ‘any continuous use no matter
how slight, by the public, is sufficient.’” Farrell, 138 Idaho at 385, 64 P.3d at 311 (quoting
Taggart, 115 Idaho at 818, 771 P.2d at 39).
The County had substantial evidence on which to find that Sopatyk could not meet the
burden of showing that the road went unused for any five year period. Sopatyk gives no
affirmative evidence that the public ceased using the road for any five year span before 1963.
On the other hand, a U.S. Geological Survey report states that mining was active until 1908 in
the Clara Morris group of mines, which lie at the end of ACR. The record contains letters and
affidavits showing that the road was used for logging in the 1940s and mining in the 1920s
through the 1970s. There was also evidence that someone built and lived in a cabin and
maintained an orchard on ACR in 1937. Since 1906, ACR has accessed public forest lands, a
reasonable basis upon which to infer that the public has been using the road for recreation and
wood gathering. The County therefore correctly held that ACR was not abandoned.
Validating Anderson Creek Road Was Not an Unconstitutional Taking
The parties agree that the County never formally abandoned ACR.
Sopatyk cites a case discussing a later version of the 1887 abandonment statute, I.C. § 1139 (1901), and does not
argue that the County abandoned ACR after the 1960s.
In 1963, the Legislature amended this statute to state: “A road established by prescription and not worked or used
for the period of five years ceases to be a highway for any purpose whatever.” Act of Feb. 8, 1963, ch. 6, § 1, 1963
Idaho Sess. Laws 17, 17 (codified at I.C. § 40-104) (emphasis in original, indicating new language). In 1986, the
Legislature repealed the passive-abandonment statute altogether, replacing it with a formalized process for vacating
pubic highways. Act of April 3, 1986, ch. 206, § 3, 1986 Idaho Sess. Laws 512, 513–14 (amending I.C. § 40-203,
the provision that previously provided for passive abandonment).
Sopatyk asserts that validating the road was an unconstitutional taking for which he has
not been compensated. Article I, section 14 of the Idaho Constitution 7 and the Fifth Amendment
of the U.S. Constitution8 both prohibit the government from taking private property for public
use without just compensation. Statewide Constr., Inc. v. Pietri, 150 Idaho 423, 429, 247 P.3d
650, 656 (2011).
As explained above, there was substantial evidence upon which the Board could find that
ACR became a public road by legislative declaration in 1881. Sopatyk’s predecessors in interest,
by comparison, did not patent the Anderson Placers until 1897. Until that time, they did not
actually own the land. Sopatyk’s Takings Clause claim is therefore without merit, as neither he
nor his predecessors have been deprived of any property. See Lucas v. S. C. Coastal Council,
505 U.S. 1003, 1015, 112 S. Ct. 2886, 2893 (1992) (stating that a taking occurs when the
government “compel[s] the property owner to suffer a physical ‘invasion’ of his property”).
The Board Did Not Fail to Determine Whether Validating the Road Was in the
Although the Board validated ACR, Sopatyk complains that the Board at no point
expressly explained why validating ACR was in the public interest. The Idaho Code mandates
that after holding validation proceedings the Board “shall determine whether validation of the
highway or public right-of-way is in the public interest” and enter an order accordingly. I.C. §
40-203A(3). This statute contrasts with the analogous section governing highway abandonmentand-vacation decisions under I.C. § 40-203(1)(h). That section provides that after a hearing to
vacate a highway, the Board must issue an order, which “shall be written and shall be supported
by findings of fact and conclusions of law.” Section 40-203A(3) notably omits a specific
requirement for written findings. This statutory requirement by its plain language governs the
substantive standard the Board must apply when deciding whether to validate a road.
Likewise, the highway-validation statute is quite different from the Idaho Administrative
Procedure Act, which requires that agency orders contain reasoned explanations of decisions and
that factual findings “shall be accompanied by a concise and explicit statement of the underlying
facts of record supporting the findings.” I.C. § 67-5248(1)(a). It also differs from the Local
The Idaho Constitution provides in relevant part: “Private property may be taken for public use, but not until a just
compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.” IDAHO CONST. art. I, § 14.
The Fifth Amendment states that no person shall “be deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.” U.S. CONST. amend. V.
Land Use Planning Act, which requires written decisions, reasoning, and citation to the facts
relied upon in a decision. I.C. § 67-6535(2); Evans v. Teton Cnty., 139 Idaho 71, 80, 73 P.3d 84,
This Court’s role, therefore, is simply to determine whether it was clear error for the
Board to determine that validating ACR was in the public interest. I.C. § 40-208(7); but cf.
Jensen v. Siemsen, 118 Idaho 1, 5, 794 P.2d 271, 275 (1990) (reviewing for clear error the
Industrial Commission’s decision regarding whether an employee had left a job due to sexual
harassment even though the Commission did not specifically make findings regarding good
cause). This Court may therefore affirm the Board’s order even though it does not cite specific
facts to support its public-interest finding.
There is substantial evidence that validating ACR would be in the public interest. This
road became public while the underlying land was federal property.
The Legislature has
recognized that “existing federal land rights of way are extremely important to all of Idaho’s
citizens. Two-thirds of Idaho’s land is under control of the federal government and access to
such federal lands is integral to public use.” Act of Mar. 25, 1993, ch. 142, § 1, 1993 Idaho Sess.
Laws 375, 376 (creating I.C. § 40-204A, governing creation of public thoroughfares under R.S.
2477). A number of people stated or testified on the record that they regularly use ACR to
access the Salmon National Forest for recreation and wood gathering.
Further, the Forest
Supervisor of the Salmon-Challis National Forest sent a letter to the Board stating that “we
believe the best interests of the public would be served” by validating ACR so that the public can
reach the National Forest. The Board correctly determined that it is in the public interest for
ACR to be a public highway. 9
The County Has Authority to Validate Anderson Creek Road Even Though It
Intrudes into a National Forest
Sopatyk next argues that the Board lacks the authority to validate ACR because in some
places it drifts onto land owned by the U.S. Forest Service. As described above, however, R.S.
2477 expressly permitted states to establish rights-of-way on federal land so long as the property
Sopatyk raises another similar argument. He notes that at the validation proceedings, the Board must “consider all
information relating to the proceedings.” I.C. § 40-203A(2)(e). He asserts that the Board violated this provision
because it did not cite the record when setting forth its factual findings. Because the text of this rule merely tells the
Board what to consider, not what to write in an order or decision, it does not require specific citations to the record.
This Court’s role is therefore limited to reviewing the correctness of the Board’s legal conclusions and the
sufficiency of the evidence underlying its factual findings.
is in the public domain. Galli, 146 Idaho at 159, 191 P.3d at 237. ACR became a public road by
legislative declaration. It was not until 1906 that President Theodore Roosevelt created the
Lemhi Forest Reserve, withdrawing the land around Gibbonsville from the public domain.
Proclamation No. 672, 34 Stat. 3248, 3248–49 (Nov. 5, 1906). 10 ACR was therefore a public
road before the underlying land became ineligible for such development. Further, the Board did
not create new public rights when it validated ACR in 2005, as validation proceedings merely
confirm preexisting public rights in state roads. Galvin v. Canyon Highway Dist. No. 4, 134
Idaho 576, 579, 6 P.3d 826, 829 (2000) (citing I.C. § 40-203A). It was therefore within the
County’s legal authority to validate ACR even if it does invade National Forest land.
The County Was Within Its Statutory Authority to Validate ACR as a Fifty-FootWide Road
Sopatyk notes that even if the County can validate ACR, the road’s travelway is presently
only about ten feet wide. He asserts that it was beyond the Board’s statutory authority to validate
ACR at fifty feet wide. As explained above in Parts V.A and V.B, the Board was correct to hold
that ACR became a public road by legislative declaration. From 1887 forward, the Legislature
mandated: “All highways, except alleys and bridges, must be at least fifty feet wide except those
now existing of a less width.” Rev. Stat. of Idaho § 932 (1887). This 1887 statute is the
progenitor of today’s I.C. § 40-2312, which similarly states: “All highways, except bridges and
those located within cities, shall be not less than fifty (50) feet wide, except those of a lesser
width presently existing.” 11 Therefore, all highways are fifty feet wide unless a lesser width is
established. Neither side presented any evidence establishing the road’s width. As discussed in
Part V.A, ACR was likely seventy five feet wide in 1881. Therefore, the Board did not exceed
its statutory authority to validate Anderson Creek Road at fifty-feet wide.
The Board Did Not Act Arbitrarily or Abuse Its Discretion Due to Commissioner
This portion of the Lemhi Forest Reserve was later transferred to the Salmon National Forest. Exec. Order No.
841 (June 26, 1908).
This statute provides in relevant part:
All highways, except bridges and those located within cities, shall be not less than fifty
(50) feet wide, except those of a lesser width presently existing, and may be as wide as required
for proper construction and maintenance in the discretion of the authority in charge of the
construction and maintenance.
I.C. § 40-2312.
Sopatyk last argues that Commissioner Proksch, the hearing officer during the validation
hearing, was biased, causing the Board’s decision to be arbitrary and an abuse of discretion
under I.C. § 40-208(7)(f). Sopatyk does not raise a due process argument; rather, the only
authority he cites is statutory. According to I.C. § 31-807A, no county commissioners may be
directly or indirectly interested in “any contract made by the board or other person on behalf of
the county . . . [for] the opening or improvement of roads.” Sopatyk asserts that Commissioner
Proksch violated this statute because he has an ownership interest in several properties within ten
miles of Gibbonsville. 12
Commissioner Proksch did not violate I.C. § 31-807A. The plain language of this statute
applies only to county contracts for the opening or improving of roads. A validation proceeding,
by contrast, does not involve any contract, but results in an order declaring a road to be, or not to
be, public. I.C. § 40-203A(3). Validation proceedings therefore do not implicate road contracts.
Sopatyk’s argument regarding I.C. § 31-807A is therefore without merit.
Neither Party Is Entitled to Attorney’s Fees
Sopatyk requests attorney’s fees on appeal under I.C. § 12-121. This Court has already
explicitly held that I.C. § 12-117 is the exclusive means for seeking attorney’s fees against the
entities to which it applies. Smith v. Wash. Cnty., 150 Idaho 388, 392, 247 P.3d 615, 619 (2010);
Potlatch Educ. Ass’n v. Potlatch Sch. Dist. No. 285, 148 Idaho 630, 635, 226 P.3d 1277, 1282
(2010). Sopatyk is therefore not entitled to attorney’s fees.
The County requests attorney’s fees under I.C. § 12-117. This section was amended in
2010 and now states:
Unless otherwise provided by statute, in any administrative proceeding or
civil judicial proceeding involving as adverse parties a state agency or political
subdivision and a person, the state agency or political subdivision or the court, as
the case may be, shall award the prevailing party reasonable attorney’s fees,
witness fees and other reasonable expenses, if it finds that the nonprevailing party
acted without a reasonable basis in fact or law.
Of the four parcels in which Proksch has an interest, only one is near ACR. Proksch owns an undivided onequarter interest in an irrigated pasture along Highway 93 roughly a mile from ACR. This land is not adjacent to
ACR or to the public lands accessed by ACR. Sopatyk asserts that Proksch’s property interest “may be affected by
the validation and improvement of ACR,” but cites only the opinion of a real estate agent who did not visit the
parcel but viewed the area on Google Earth, an internet application that displays satellite images of the planet.
Further, as explained in Parts V.A and V.B, the evidence adduced during the hearing shows that the public already
generally uses ACR and considers it public.
I.C. § 12-117 (emphasis added). In Smith, this Court noted that, by amending section 12-117, the
Legislature was likely responding to an earlier decision, Rammell v. Idaho State Dept. of Agric.,
147 Idaho 415, 210 P.3d 523 (2009). Rammell found that the prior version of section 12-117 did
enable courts to award fees for judicial review of administrative decisions, but did not enable
agencies to award fees during administrative proceedings. Id. at 422–23, 210 P.3d at 530–31.13
The amended statute provides for fees in “any administrative proceeding or civil judicial
proceeding,” which, as this Court held in Smith, has the opposite effect of its predecessor—
courts may not award fees in review of administrative decisions, but agencies can now award
fees during administrative proceedings. Smith, 150 Idaho at 392, 247 P.3d at 619.
The County acknowledges that Smith controls here, but asserts that this Court should
overrule Smith because the Legislature intended to expand the availability of attorney’s fees, not
bar fee awards in administrative appeals.
It points to the legislative history of the 2010
amendment as evidence that the Legislature inadvertently drafted section 12-117 to prohibit
awards in petitions for review of administrative decisions.
Stare decisis requires this Court to follow controlling precedent unless it is manifestly
wrong, proven to be unjust or unwise, or overruling it is necessary in light of obvious principles
of law and justice. Grease Spot, Inc. v. Harnes, 148 Idaho 582, 585, 226 P.3d 524, 527 (2010).
Interpreting a statute is an issue of law over which this Court exercises free review. State v. Doe,
147 Idaho 326, 327, 208 P.3d 730, 731 (2009). Although this Court strives foremost to give
effect to the Legislature’s intent, any statutory interpretation must begin by applying a
provision’s plain and ordinary meaning. Wheeler v. Idaho Dep’t of Health & Welfare, 147 Idaho
257, 263, 207 P.3d 988, 994 (2009).
This Court’s interpretation of section 12-117 was not manifestly wrong. As this Court
explained in Smith, the plain language of that section enables the relevant adjudicative body to
award fees only in administrative proceedings or in civil judicial proceedings. Administrative
proceedings are, by definition, proceedings not before a court, while civil judicial proceedings
are, by definition, proceedings in court commenced by a complaint. Smith, 150 Idaho at 391,
The earlier section 12-117 read:
Unless otherwise provided by statute, in any administrative or civil judicial
proceeding involving as adverse parties a state agency, a city, a county or other taxing district and
a person, the court shall award the prevailing party reasonable attorney’s fees, witness fees and
reasonable expenses, if the court finds that the party against whom the judgment is rendered acted
without a reasonable basis in fact or law.
247 P.3d at 618. This case meets neither definition because it originated in court with a petition
for judicial review. Id.
Further, there is no obvious principle of justice at stake here.
The courts’ very
jurisdiction over administrative appeals is controlled by the Legislature, including the specific
issue of when parties may receive attorney’s fees. See Laughy v. Idaho Dep’t of Transp., 149
Idaho 867, 870, 243 P.3d 1055, 1058 (2010); see also PHH Mortg. Servs. Corp. v. Perreira, 146
Idaho 631, 641, 200 P.3d 1180, 1190 (2009). Since Idaho follows the “American Rule” for
attorney’s fees, no fee awards are available absent contractual or statutory authority. Mortensen
v. Stewart Title Guar. Co., 149 Idaho 437, 447–48, 235 P.3d 387, 397–98 (2010). Having
allowed parties to bring petitions for judicial review in the first place, the Legislature could
reasonably have intended to withhold fee awards in such cases. No fundamental principle of law
requires attorney’s fees in judicial review of administrative decisions, nor is there any basic
injustice in requiring parties in such proceedings to pay their own attorneys. This Court must
apply the plain and unambiguous language in the statute and adhere to its prior controlling
This Court affirms the judgment of the district court validating Anderson Creek Road
because it became public by legislative declaration. Neither party is entitled to attorney’s fees on
appeal. Costs are awarded to the County.
Chief Justice BURDICK and Justices EISMANN, J. JONES and HORTON CONCUR.
Petitioner-Appellant Brian Sopatyk sought judicial review of the Lemhi County Board of Commissioners' decision to validate Anderson Creek Road, which ran the length of his property. He contended the road never became public and, if so, was abandoned. He also maintained that the validation was an unconstitutional taking, that it was error for the road easement to be validated at fifty-feet wide, that one of the commissioners was biased against him, that the road illegally invades federal public lands, and that the Board of Commissioners failed to explain why the validation is in the public interest. Upon review, the Supreme Court affirmed the validation decision, finding the road became public by legislative declaration in the late 1800s and was never abandoned.Receive FREE Daily Opinion Summaries by Email