THUNDER BASIN COAL COMPANY V. CAMPBELL COUNTY, WYOMING ASSESSOR

THUNDER BASIN COAL COMPANY V. CAMPBELL COUNTY, WYOMING ASSESSOR
2006 WY 44
132 P.3d 801
Case Number: 05-117, 05-118, 05-119
Decided: 04/12/2006

APRIL TERM, A.D. 2006

 

 

THUNDER BASIN COAL COMPANY,

 

 

Appellant

(Petitioner),

 

 

v.

 

 

CAMPBELL COUNTY, WYOMING ASSESSOR,

 

 

Appellee

(Respondent).

 

 

Appeal from the DistrictCourtofCampbellCounty

The Honorable Dan R. Price, II, Judge (05-117)

The Honorable John R. Perry, Judge (05-118 and 05-119)

 

 

Representing Appellant:

            Lawrence J. Wolfe of Holland & Hart, LLP, Cheyenne, Wyoming.

 

 

Representing Appellee:

            Carol Seeger, Deputy Campbell County Attorney, Gillette, Wyoming.

 

 

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

 

 

KITE, Justice.

 

 

[¶1]      In these consolidated appeals, Thunder Basin Coal Company (ThunderBasin) contests the Campbell County Assessor's (CountyAssessor) ad valorem tax assessments for the tax years 2001 and 2002 on its personal property at the Black Thunder and Coal Creek Mines in CampbellCounty.  ThunderBasin argues the CountyAssessor greatly overvalued the personal property, including machinery, equipment and buildings, located at each mine.  For both years, ThunderBasin argues the CountyAssessor improperly used the allocated purchase price it paid when it purchased the mines in 1998, rather than the original cost of the individual items of property, to calculate the total value using the cost method.  ThunderBasin also contends the CountyAssessor failed to properly account for economic obsolescence and the Campbell County Board of Equalization (CountyBoard) failed to make appropriate findings of fact and conclusions of law.  We affirm the CountyBoard's decisions in Cases No. 05-117 and 05-119.  With regard to Case No. 05-118, we conclude the matter is not properly before this Court and, consequently, dismiss that case for lack of jurisdiction.   

 

 

ISSUES

 

 

[¶2]      In Case No. 05-117, ThunderBasin presents the following issues for review:

 

 

A.                 In determining the value of personal property and improvements to real property, the CountyAssessor is required by Department of Revenue rules to account for all three forms of depreciation: physical depreciation, functional obsolescence and economic obsolescence. CampbellCounty's Assessor completely ignored economic obsolescence in arriving at the value of the property of the Black Thunder Mine for tax year 2001.  The State Board's decision affirming the CountyBoard and Assessor is erroneous and must be reversed.

 

 

B.                 Campbell County's Appraiser treated all property at both mines as new on June 1, 1998, the date Arch acquired TBCC from ARCO.  This ignored the physical depreciation of the property and is not in accordance with generally accepted appraisal techniques.  The State Board decision failed to correct this appraisal defect, which constitutes appropriate grounds to reverse the State Board's ruling.

 

 

C.                The State Board and CountyBoard decisions are fatally flawed as they do not contain sufficiently detailed findings of fact and conclusions of law to adequately explain their decision regarding economic obsolescence.

 

 

The CountyAssessor articulates the issue in Case No. 05-117 as follows:

 

 

Whether the decision of the Board affirming the 2001 assessed value of petitioner's personal property established by the Campbell County Assessor was (a) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege or immunity; (c) in excess of statutory jurisdiction or authority; (d) without observance of procedures required by law; or (e) unsupported by substantial evidence.

 

In Case No. 05-118, ThunderBasin poses the following issues on appeal:

 

 

A.                 Is the Campbell County Board of Equalization's decision fatally flawed because it failed to set forth the rationale for its decision?

 

 

B.                 Did the State Board of Equalization exceed its authority when it acted as an expert appraiser, thereby poisoning further review by the Campbell County Board of Equalization?

 

 

C.                Are the Campbell County Board of Equalization's findings of fact regarding the life of the facility contrary to substantial evidence?

 

 

D.                Is the Campbell County Assessor's determination of physical depreciation, which has the effect of treating the property as new in 1998, contrary to appraisal practice and the Department of Revenue's instructions?

 

 

E.                 Whether the appraisal judgments of the Campbell County Board of Equalization and State Board of Equalization, particularly as to economic obsolescence, are wrong, contrary to substantial evidence and arbitrary and capricious?

 

 

F.                 Whether the decisions of the Campbell County Board of Equalization and State Board of Equalization violate  Wyoming Constitution Article 15, § 11 because the fair market value of the property was not determined using a rational method, equally applied, that results in essential fairness?

 

 

In Case No. 05-119, ThunderBasin's issues are similar to those in Case No. 05-118:

 

 

A.        Is the Campbell County Board of Equalization's decision fatally flawed because it failed to set forth the rationale for its decision?

 

 

B.        Is the Campbell County Assessor's determination of physical depreciation, which has the effect of treating the property as new in 1998, contrary to appraisal practice and the Department of Revenue's instructions?

 

C.        Whether the appraisal judgments of the Campbell County Board of Equalization and State Board of Equalization, particularly as to economic obsolescence, are wrong, contrary to substantial evidence and arbitrary and capricious?

 

 

D. Whether the decisions of the Campbell County Board of Equalization and State Board of Equalization violate Wyoming Constitution Article 15, § 11 because the FMV of the property was not determined using a rational method, equally applied, that results in essential fairness?

 

 

The CountyAssessor does not provide a separate statement of the issues in either Case No. 05-118 or Case No. 05-119. 

 

 

FACTS

 

 

[¶3]      ThunderBasin, which is owned by Arch Coal, Inc. (Arch Coal), purchased the Black Thunder and Coal Creek Mines located in CampbellCounty in 1998.  ThunderBasin closed the Coal Creek Mine in 2000.

 

 

Case No. 05-117 Black Thunder and Coal Creek Mines Tax Year 2001

 

 

[¶4]      For the tax year 2001, the CountyAssessor contracted with a private company, Thos. Y. Pickett & Company, Inc. (Pickett), to appraise the personal property located at the mines.  Pickett had provided this service for CampbellCounty since the mid-1980s and performed approximately twenty complex mine appraisals each year.  Pickett requested ThunderBasin provide certain information, including an asset list and depreciation schedules for all buildings, machinery, and equipment, by February 15, 2001.  ThunderBasin missed the deadline, but, sometime after February 26, 2001, ThunderBasin's property tax manager sent Pickett a fixed assets schedule.  The schedule contained "current book costs, taken from an appraisal by Price Waterhouse Coopers LLP at the time of acquisition [of the mines from ARCO] in June, 1998."  ThunderBasin did not provide any depreciation schedules until after the tax assessments were issued by the CountyAssessor. 

 

 

[¶5]      Pickett used the cost based approach to appraise the personal property at the mines based upon the information it had received from ThunderBasin.  Using Pickett's appraisal, the CountyAssessor valued the personal property for the Black Thunder mine at $231,558,310 and the personal property at the Coal Creek Mine at $23,861,300.  ThunderBasin disagreed with the CountyAssessor's valuations and employed an independent appraiser, Ernst & Young LLP (Ernst), to value the personal property at the two mines.  Ernst completed its appraisal on May 31, 2001, and concluded the personal property at the Black Thunder Mine was worth $168,788,000 and the property at the Coal Creek Mine was worth $12,459,000.  The disparity between ThunderBasin's and the CountyAssessor's valuations resulted primarily from differences in their respective calculations of physical depreciation and economic obsolescence. 

 

 

[¶6]      The CountyBoard held a hearing on June 20, 2001, and, subsequently issued findings of fact and conclusions of law upholding the CountyAssessor's determinations.  ThunderBasin appealed to the State Board of Equalization (SBOE), which affirmed the CountyBoard's decision.  ThunderBasin filed a petition for review of the SBOE's decision in the district court, which also affirmed the CountyBoard's rulings.  ThunderBasin then appealed to this Court.  

 

 

Case Nos. 05-118 & 05-119 Black Thunder and Coal Creek Mines -- Tax Year 2002

 

 

[¶7]      In 2002, CampbellCounty again contracted with Pickett to appraise property at the mines within the county, including ThunderBasin's Black Thunder and Coal Creek Mines.  As in 2001, Pickett utilized information provided by ThunderBasin to prepare the appraisals, employing the cost approach.  Relying upon the Pickett appraisals, the CountyAssessor issued property tax valuations for the personal property at the mines.  The Black Thunder Mine valuation was $253,547,380, and the Coal Creek Mine valuation was $17,946,290.   

 

 

[¶8]      ThunderBasin disagreed with the CountyAssessor's valuations, and again hired Ernst to conduct an individual or "fee" appraisal of the personal property at both mines.  Like Pickett, Ernst used the cost approach to appraise the property.  ThunderBasin's appraisals, however, resulted in valuations which were very different from the CountyAssessor's valuations.  For the Black Thunder Mine, Ernst valued the personal property at $153,502,788, which was over $100,000,000 less than the CountyAssessor's valuation.  Ernst valued the Coal Creek Mine personal property at nearly one-half of the CountyAssessor's appraisal, or $9,724,320.   

 

 

[¶9]      ThunderBasin appealed the Black Thunder Mine valuation and the CountyBoard held a hearing.  The CountyBoard upheld the CountyAssessor's valuation, and ThunderBasin appealed to the SBOE which issued a comprehensive decision agreeing with many of the CountyBoard's findings.  Nevertheless, the SBOE ultimately concluded the CountyAssessor failed to properly calculate economic obsolescence of the personal property at the Black Thunder Mine and, therefore, the CountyBoard's decision affirming the CountyAssessor's valuation for that mine did not comply with the law.  Consequently, the SBOE ordered:  "The decision of the CountyBoard affirming the Assessor's valuation of [ThunderBasin's] property shall be and the same is, hereby remanded." (emphasis in original).  Even though ThunderBasin ostensibly prevailed before the SBOE, it filed a petition for review with the district court.  The district court affirmed the SBOE's decision, "including its remand to the CountyBoard."  Still not content, ThunderBasin appealed to this Court. 

 

 

[¶10]   ThunderBasin also appealed the Coal Creek Mine 2002 assessment.  As stated above, ThunderBasin closed the Coal Creek Mine in 2000.  By 2002, much of the machinery and equipment had been removed from the mine, and the buildings were unoccupied.  As in 2001, the difference between the CountyAssessor's and ThunderBasin's valuations of the personal property at the Coal Creek Mine rested largely upon the appraisers' divergent calculations of physical depreciation and economic obsolescence.  Consequently, ThunderBasin focused on those issues at the hearing before the CountyBoard.  The CountyBoard concluded the CountyAssessor's valuations complied with law and, consequently, affirmed the valuations.  ThunderBasin appealed to the SBOE, which also affirmed.  ThunderBasin filed a petition for review with the district court, and that court affirmed the CountyBoard's decision, leading to an appeal to this Court. 

 

 

STANDARD OF REVIEW

 

 

[¶11]   Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005) sets forth the scope of appellate review for agency decisions:

 

 

(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:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(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;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

 

[¶12]   When an appealing party contests an agency's findings of fact, we examine the entire record to determine if the agency's findings are supported by substantial evidence.  RT Communications, Inc. v. State Bd. of Equalization, 11 P.3d 915, 920 (Wyo. 2000), Laramie County Bd. of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1189 (Wyo. 1996).  If the agency's findings of fact are supported by substantial evidence, we will not substitute our judgment for that of the agency and will uphold the factual findings on appeal.  RT Communications, 11 P.3d at 921.  "Substantial evidence is more than a scintilla of evidence; it is evidence that a reasonable mind might accept in support of the conclusions of the agency."  Id.   "When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law' language of WYO. STAT.  § 16-3-114(c)(ii) (1990)."  Newman v. State ex rel. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d 163, 168 (Wyo. 2002) (citations omitted).  See also, Veile v. Bryant, 2004 WY 107, ¶ 9, 97 P.3d 787, 792 (Wyo. 2004).  

 

 

[¶13]   With regard to appeals of property tax matters, we have stated: 

 

 

     The Department's valuations for state-assessed property are presumed valid, accurate, and correct.  This presumption can only be overcome by credible evidence to the contrary.  In the absence of evidence to the contrary, we presume that the officials charged with establishing value exercised honest judgment in accordance with the applicable rules, regulations, and other directives that have passed public scrutiny, either through legislative enactment or agency rule-making, or both.

 

 

     The petitioner has the initial burden to present sufficient credible evidence to overcome the presumption, and a mere difference of opinion as to value is not sufficient.  If the petitioner successfully overcomes the presumption, then the Board is required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof.  Once the presumption is successfully overcome, the burden of going forward shifts to the DOR to defend its valuation.  The petitioner, however, by challenging the valuation, bears the ultimate burden of persuasion to prove by a preponderance of the evidence that the valuation was not derived in accordance with the required constitutional and statutory requirements for valuing state-assessed property. . . .

 

 

* * * *

 

 

Colorado Interstate Gas Company v. Wyoming Department of Revenue, 2001 WY 34, ¶¶ 9-11, 20 P.3d 528, ¶¶ 9-11 (Wyo. 2001) (citations omitted).

 

 

Airtouch Communications, Inc. v. Dep't of Revenue, 2003 WY 114, ¶ 12, 76 P.3d 342, 348 (Wyo. 2003).1 

 

 

[¶14]   The CountyAssessor's choice of appraisal methods is reviewed under the substantial evidence standard.  It is not the duty of the reviewing court

 

"to determine which of various appraisal methods is best or most accurately estimates FMV [fair market value]; rather, it is to determine whether substantial evidence exists to support usage of the [particular] method of appraisal, and, if so, whether substantial evidence exists to support the manner in which it was used."  Holly Sugar Corp. v. State Bd. of Equalization, 839 P.2d 959, 963 ( Wyo. 1992).

 

 

RT Communications, Inc. 11 P.3d at 921, quoting Gray v. Wyo. State Bd. of Equalization, 896 P.2d 1347, 1350-51 (Wyo. 1995).  

 

 

The proper application of appraisal methods to the facts is an issue of ultimate fact requiring de novo review.  An ultimate fact is a mixture of fact and legal precept. 

 

 

"When an agency's determinations contain elements of law and fact, we do not treat them with the deference we reserve for findings of basic fact.  When reviewing an "ultimate fact," we separate the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts.  We do not defer to the agency's ultimate factual finding if there is an error in either stating or applying the law."

 

 

Pacificorp, Inc. v. Dep't of Revenue, 2001 WY 84, ¶ 6, 31 P.3d 64, 65-66 (Wyo. 2001) (citations omitted). 

 

 

[¶15]   We review an agency's conclusions of law de novo.  Wyo. Dep't of Revenue v. Guthrie, 2005 WY 79, ¶ 13, 115 P.3d 1086, 1091 (Wyo. 2005).  If a conclusion of law is in accord with the law, it is affirmed.  Airtouch Communications,  2003 WY 114, ¶ 10, 76 P.3d at 347.  "However, when an agency has failed to properly invoke and apply the correct rule of law, we correct the agency's error."  Id.   

 

 

DISCUSSION

 

 

Case No. 05-117 Black Thunder and Coal Creek Mines Tax Year 2001

 

 

[¶16]   With regard to the 2001 personal property tax assessment for the two mines, ThunderBasin raises three issues on appeal.  It alleges the CountyAssessor erred in his calculation of physical depreciation of both mines by using the 1998 allocated purchase price as the starting point and failed to properly account for economic obsolescence for the Black Thunder Mine.  ThunderBasin also claims the CountyBoard's findings of fact and conclusions of law failed to adequately explain its decision.

 

1998 Values

 

 

[¶17]   We will begin with the issue of the 1998 values which pertains to both mines.  ThunderBasin purchased the mines from ARCO in 1998.  Throughout its arguments, ThunderBasin contests the CountyAssessor's use of the values the company allocated to the personal property when it purchased the property in 1998.  ThunderBasin claims use of the 1998 values is not the correct way to apply the cost approach.  It also claims the values do not accurately reflect the fair market value of the property because the allocation of the purchase price paid by ThunderBasin was for income tax purposes and not to establish fair market value for purposes of property tax.

 

 

[¶18]   Pursuant to the Wyoming Constitution, Art. 15, § 11, property must be uniformly assessed.  To accomplish that directive an assessor must adopt ‘"a rational method [of appraisal], equally applied to all property, which results in essential fairness.'"  Holly Sugar Corp. v. State Bd. of Equalization, 839 P.2d 959, 964 (Wyo. 1992), quoting Teton Valley Ranch v. State Bd. of Equalization, 735 P.2d 107, 115 (Wyo. 1987) (Urbigkit, J. concurring).  To that end, all property must be valued at its fair market value for property tax purposes.  Wyo. Stat. Ann. § 39-13-103(b)(ii) (LexisNexis 2005).  Wyo. Stat. Ann. § 39-11-101(a)(vi) (LexisNexis 2005) defines fair market value as:

 

 

(vi) "Fair market value" means the amount in cash, or terms reasonably equivalent to cash, a well informed buyer is justified in paying for a property and a well informed seller is justified in accepting, assuming neither party to the transaction is acting under undue compulsion, and assuming the property has been offered in the open market for a reasonable time . . . .

 

 

[¶19]   The rules and regulations of the Department of Revenue (DOR) provide three methods of appraisal to determine fair market value: cost, sales comparison, and income or capitalized earnings.  DOR Rules, Ch. 9, § 6.  In the circumstances present in this case, the CountyAssessor and ThunderBasin agreed the cost approach method of appraisal was the appropriate one to use.  As the regulations provide, "The cost approach is a method of estimating value by summing the land value, where applicable, with the depreciated value of improvements . . . .   The cost approach relies on the principle of substitution in which an informed buyer will not pay more for a property than its comparable replacement."  DOR Rules, Ch. 9, § 6(b).  To apply this method, costs are estimated on the basis of typical reproduction or replacement costs which are then trended (to account for inflation) from the date of acquisition to the tax lien date using an appropriate construction cost index.  That trended cost is then depreciated, beginning on the first assessment date after the property is acquired, to reflect the actual value of the item at the time the tax is imposed.  Depreciation continues on an annual basis until the residual value is reached.  The regulations establish the lowest allowed residual value to be 25% unless the appraiser has sufficient market information to indicate a lower residual value would be appropriate.  DOR Rules, Ch. 9, § 6(b)(iv).

 

 

[¶20]   The regulatory definition of the "trended original cost method" refers to trending the "acquisition or original costs."  DOR Rules, Ch. 9, § 6(b)(v)(H).  In the Personal Property Valuation Manual (Ad Valorem Tax Div. 2002), the DOR provides guidelines to counties for purposes of application of the cost approach to appraisal.  That manual addresses valuation of used personal property in particular and it states:

 

 

            Valuing used personal property requires that the Assessor make a decision about the remaining economic life of the equipment.  The purchase of used equipment that has not reached the end of its economic life would be valued normally.  In other-words you would use the purchase price (if accurate) and then trend the property and depreciate it.  If the equipment has reached its residual value, the acquisition cost should be treated as an RCNLD value and frozen at that value, RCN trending and depreciation would not be applied.  Residual value is referred to in Chapter 9 of the DOR rules, February 11, 1999. 

 

 

Personal Property Valuation Manual, § 1, p. 36. (emphasis added). 

 

 

[¶21]   Nothing in the statutes, regulations or guidelines prohibits the use of the acquisition cost of used personal property as the starting place for the cost method of appraisal and, in fact, the guidelines seem to direct it.  However, ThunderBasin argues that doing so essentially resets the economic life of the used property and treats it as "new" when that is not the case.  This "resetting" arguably occurred when the CountyAssessor applied a standard useful life for like property, assuming the property was new when it was acquired by ThunderBasin in 1998.  For example, ThunderBasin argues when valuing a 1991 used dozer acquired in 1998, the CountyAssessor applied a full useful life of a new dozer to the used dozer.  The CountyAssessor, on the other hand, contends the purchase price, as allocated by ThunderBasin, is the best evidence of the fair market value of the property.  In addition, the CountyAssessor argues those values were provided by ThunderBasin as its "booked values" and, therefore, if any error was made it was ThunderBasin's fault.

 

 

[¶22]   The standard life of personal property affects the depreciation calculation in two ways.  It drives both the amount of annual depreciation (100% divided by the number of years in effective life of the property) and the total allowed depreciation which is governed by length of time necessary to reach residual value.  Personal Property Valuation Manual, § 6-3.  ThunderBasin and the CountyAssessor used the same annual depreciation factor (5% for equipment and 4% for improvements).  However, ThunderBasin complains that the CountyAssessor's appraisal started the effective life of the property in 1998 which resulted in only three years of depreciation compared to many more years when the original date of acquisition (or construction, in the case of improvements) is used.  The result of the CountyAssessor's approach was, in some cases, to presume the useful life of the property extended beyond the life of the mine.  The CountyAssessor claims the assumption that personal property has no value beyond the life of the operation is unfounded.  In addition, ThunderBasin's approach allows so much depreciation that the residual value of most of the property was well below the 25% limit established by the regulations.

 

 

[¶23]   As we said, the goal of the appraisal is to estimate fair market value.  Wyo. Stat. Ann. § 39-11-101(a)(vi).  The County Assessor's expert opined that the many years of depreciation allowed by Thunder Basin's appraisal was unwarranted because the 1998 purchase price was a much better indicator of what a willing buyer would pay a willing seller for the property in an arms length transaction.  The CountyAssessor argued, therefore, the depreciation of the property was taken into account by the buyer and seller in negotiating the 1998 transaction.  The CountyBoard concluded the CountyAssessor's method was in accordance with the law and was a "rational method of appraisal, equally applied to all property."

 

 

[¶24]   After a thorough review, we conclude the record supported the CountyBoard's conclusion.  ThunderBasin provided no citation to any guideline, rule or statute requiring the use of the original acquisition date and price when applying the cost method of appraisal.  In fact, both the guidelines and the rules suggest, directly and indirectly, the actual acquisition price and date are a proper starting point for applying the cost method to used property.  See also, Jim Paws, Inc. v. Equalization Bd. of Garland County, Arkansas, 710 S.W.2d 197 (Ark. 1986) (stating the actual sales price of used personal property in an arms length transaction is generally a more accurate means to estimate fair market value than calculating the replacement cost by subtracting depreciation from the trended new cost).  Also, the CountyAssessor's expert testified the older the asset, the less accurate the cost method is, and his approach more closely approximated actual fair market value.  See also, The Appraisal of Real Estate, pp.358-59 (Appraisal Institute, 12th ed. 1992).

 

 

[¶25]   ThunderBasin pointed out the 1998 allocated purchase price provided to the county was prepared for federal income tax purposes and was not intended to accurately represent the fair market value of the individual items of property.  However, ThunderBasin forgets it provided the 1998 values to the CountyAssessor in response to the CountyAssessor's requests for current book value information.  The CountyAssessor was entitled to rely upon the information submitted by ThunderBasin as accurate and reliable.  As we have repeatedly stated in the past, the taxpayer bears the burden of providing accurate information to the assessor for preparation of a valuation of its properties.  See e.g., Guthrie, 2005 WY 79, ¶ 14, 115 P.3d at 1092; Airtouch Communications, 2003 WY 114, ¶ 39, 76 P.3d at 357; RT Communications, 11 P.3d at 927.  The taxpayer should not, therefore, be heard to complain when the assessor relies upon the information supplied to him for the particular purpose of establishing value.  Id.

 

 

 [¶26]  The regulations require depreciation to end when a residual value of 25% is reached, "unless the property tax appraiser has collected sufficient market information to indicate a different residual value."  DOR Rules, Ch. 9, § 6(b)(iv)(D).  In an effort to support his use of residual values of less than 25%, ThunderBasin's expert obtained information from ThunderBasin, including an appraisal completed by Wyoming Machinery, which estimated values for some of the used equipment.  The CountyBoard concluded that information was insufficient to justify a departure from the 25% residual value and to do so would be inconsistent with the residual values used for all mines in CampbellCounty.  ThunderBasin simply failed to carry its burden to overcome the presumption that the CountyAssessor's reliance on the 25% residual value limit was proper.  Airtouch Communications, 2003 WY 114, ¶ 12, 76 P.3d at 348.  The CountyBoard's decision was well justified and we cannot conclude it acted in an arbitrary or capricious manner in concluding ThunderBasin failed to carry its burden.

 

 

[¶27]   With regard to the calculation of physical depreciation, we can find no error in the manner in which the cost method of appraisal was applied by the CountyAssessor.  Instead, it is clear the differences in value between the County Assessor's and Thunder Basin's appraisals resulted from differences of expert opinion about the proper date for starting depreciation for used property and whether sufficient information existed to justify varying from the 25% limit on residual value.  These are precisely the types of differences of expert opinion that are to be resolved by the CountyBoard.  Airtouch Communication, 2003 WY 114, ¶ 25, 76 P.3d at 352; Holly Sugar, 839 P.2d at 963.  "The choice of the appraiser regarding which indicator of value is most appropriate and the final value itself are matters of appraisal judgment with which this Court will not interfere if they are supported by substantial evidence."  Id.  The record adequately supports the CountyBoard's decision to accept the CountyAssessor's opinion and we find no legal error in his application of the cost method.

 

 

            Economic Obsolescence

 

 

[¶28]   ThunderBasin contends the CountyAssessor failed to account for economic obsolescence in arriving at the value of the Black Thunder Mine.  Although not stated as a separate issue for review, ThunderBasin's brief also discusses alleged errors in the manner in which economic obsolescence was calculated for the Coal Creek Mine.  Because it was addressed in the body of the brief, we will also address economic obsolescence for Coal Creek.

 

 

[¶29]   The rules provide depreciation must be applied in the cost method of appraisal beginning at the first assessment date after the property is acquired.  Such depreciation may take the form of physical depreciation, functional obsolescence or economic obsolescence. DOR Rules, Ch. 9, § 6(b)(v)(D).  Economic obsolescence is defined as "impairment of desirability or useful life arising from factors external to the property, such as economic forces or environmental changes which affect supply-demand relationships in the market."  DOR Rules, Ch. 9, § 6(b)(v)(D)(III)   See also, Holly Sugar, 839 P.2d at 961.  Three methods of measuring economic obsolescence are set out, but they are not exclusive and the DOR regulations do not require the use of those methods.  DOR Rules, Ch. 9, § 6(b)(v)(D)(III).  Moreover, the regulations do not provide that all forms of depreciation must be found in all instances.  Id. 

 

 

[¶30]   The CountyAssessor concedes he did not perform any calculations to test for the existence of economic obsolescence for the Black Thunder Mine in 2001.  Instead, he contends the 1998 allocated purchase price reflected, on that date, any economic obsolescence that may have existed since the purchase price resulted from an arms length transaction and that transaction was relatively recent.  In reference to reliance upon the 1998 values, the CountyAssessor's expert testified, ". . . this sale, being a fair market sale, all functional and economic obsolescence is negated because a market approach took over." In addition, when questioned about economic obsolescence, the CountyAssessor's expert testified the "information was not there."  It is not completely clear from the record whether he meant there was no indication of economic obsolescence or the information necessary to calculate it was not provided by ThunderBasin.2  ThunderBasin cites to no statute or regulation that would require a certain method to "test" for economic obsolescence.  Given the CountyBoard's conclusion that the 1998 allocated value was a reliable indicator of fair market value at that time, it is not unreasonable that those values would also be relied upon for purposes of economic obsolescence.  Obviously, that approach becomes less viable as more time elapses between the sale and the assessment date.   In fact, in the 2002 assessment process, the CountyAssessor no longer took that approach, but instead performed an analysis of income shortfall to determine whether economic obsolescence existed.  The CountyBoard concluded ThunderBasin did not meet its burden of showing the CountyAssessor's appraisal was flawed or did not comply with generally accepted appraisal practices.  We cannot say the CountyAssessor's approach in 2001 was arbitrary or contrary to law.  As we noted above, reliance upon the 1998 values as accurately reflecting the fair market value of the property at that time was supported by substantial evidence.

 

 

[¶31]   We turn now to the issue of the economic obsolescence calculation for the Coal Creek Mine.  Although not stated as a separate issue for review, ThunderBasin argues, in one page of its brief, the CountyAssessor's calculation of economic obsolescence for the Coal Creek Mine improperly included the value of the reserves and working capital, neither of which are subject to personal property tax.  However, ThunderBasin fails to provide any citation to the record where such error occurred.  ThunderBasin's evidence in the record on this issue consists only of a conclusory, four sentence statement by its expert that because the CountyAssessor's appraisal did not deduct income attributable to the reserves and working capital from the total income when conducting its income shortfall calculations, it somehow indirectly taxed those items.  Without further explanation, he simply stated "essentially that's what happened there . . . ."  On this record, ThunderBasin clearly did not meet its burden of establishing the economic obsolescence portion of the CountyAssessor's valuation was incorrect.  Moreover, as can be seen in the SBOE's discussion concerning the 2002 assessment, removal of those items from the total income when calculating income shortfall, as advocated by ThunderBasin's appraiser, may not have been the proper approach.  See, The Appraisal of Real Estate, supra, 358-59.  Instead, the percentage shortfall in total income is simply applied only to the personal property at the end of the calculation.  ThunderBasin failed to carry its burden with regard to overcoming the presumption of correctness enjoyed by the CountyAssessor's valuation in this regard.  Airtouch Communications, 2003 WY 114, ¶ 12, 76 P.3d at 348; Colorado Interstate Gas Company, 2001 WY 34, ¶¶ 9-11, 20 P.3d at 531.

 

 

            Adequacy of CountyBoard's Findings and Conclusions

 

 

[¶32]   ThunderBasin contends the CountyBoard's decision was inadequate and did not comply with the law because its findings of fact and conclusions of law did not specifically address the issue of economic obsolescence.  In particular, ThunderBasin points out that the SBOE's order relied on different record citations than the CountyAssessor's brief does to support the reasoning of the CountyBoard on this issue.  Thus, contends ThunderBasin, the reasoning of the CountyBoard cannot be identified on review and its decision must be remanded for adequate findings. 

 

 

[¶33]   Wyo. Stat. Ann. § 16-3-110 (LexisNexis 2005) sets forth the statutory requirements for an agency's final decision:

 

 

A final decision or order adverse to a party in a contested case shall be in writing or dictated into the record.  The final decision shall include findings of fact and conclusions of law separately stated.  Findings of fact if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.  

 

 

Although there is no bright line rule for determining the adequacy of an agency's findings of fact, we have described the attributes of sufficient findings of fact as follows:

 

 

In discharging its duty under [Wyo. Stat. Ann.] § 16-3-110, the agency must "make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based."   Pan American Petroleum Corporation v. Wyoming Oil and Gas Conservation Commission, 446 P.2d 550, 555 (Wyo.1968).  This Court needs to know "why" an agency decided the way it did.  When an agency does not make adequate findings of basic fact, we do not have a rational basis upon which to review its ultimate findings and conclusions.

 

 

Davis v. City of Cheyenne, 2004 WY 43, ¶ 12, 88 P.3d 481, 486-87 (Wyo. 2004), quoting State ex rel. Dep't of Transp. v. Legarda, 2003 WY 130, ¶ 13, 77 P.3d 708, 713 (Wyo. 2003).  "Similarly, we have held that a contested case hearing must provide, and the record of that proceeding must document, information sufficient to the making of a reasonable decision."  Jackson v. State ex. rel. Wyo. Workers' Comp. Div., 786 P.2d 874, 878 (Wyo. 1990).  Absent such information, the agency decision must be set aside as arbitrary.  Id.   Incomplete or insufficient findings of fact fall under the umbrella of arbitrary and capricious actions.  Decker v. State ex rel, Wyo. Med. Comm'n, 2005 WY 160, ¶ 25, 124 P.3d 686, 694 (Wyo. 2005); Padilla v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2004 WY 10, ¶ 6, 84 P.3d 960, 962 (Wyo. 2004).

 

 

[¶34]   While the CountyBoard's findings in this case are sparse and somewhat conclusory, we cannot conclude the CountyBoard's decision was arbitrary or capricious under the circumstances presented here.  The County Board's decision states Thunder Basin had the burden to overcome the presumption the County Assessor's value was correct and it failed to do so, a mere difference of opinion between appraisers was not sufficient to establish a valuation error, and the County Assessor's appraisal was consistent with the regulations and applicable law and relied on the best information available.  True, it would have been helpful had the CountyBoard specifically addressed ThunderBasin's argument concerning economic obsolescence.  However, no doubt exists concerning the reasoning of the CountyAssessor's expert that the recent purchase obviated the need to do an economic obsolescence calculation.  The CountyBoard made a specific finding that the CountyAssessor's valuation was proper in all respects.  Thus, it is clear from the record what the basis of the CountyBoard's determination was on that issue.

 

 

[¶35]   This situation is different from other cases where we have held an agency's decision to be arbitrary and capricious for failing to make sufficient findings of fact on evidentiary issues that are disputed.  See, e.g., Decker, 2005 WY 160, ¶ 27, 124 P.3d at 694.  We have said when there is disputed evidence on an issue, the hearing examiner must

 

 

make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based. Unless that is done there is no rational basis for judicial review.

 

* * * *

 

All of the material evidence offered by the parties must be carefully weighed by the agency as the trier of the facts; conflicts in the evidence must be resolved, and the underlying or basic facts which prompt the ultimate conclusion on issues of fact drawn by the agency in sustaining the prima facie case made, or in rejecting it for the reason it has been satisfactorily met or rebutted by countervailing evidence, must be sufficiently set forth in the decision rendered.

 

 

Bush v. State ex rel. Wyoming Workers' Safety and Comp. Div., 2005 WY 120, ¶ 9, 120 P.3d 176, 180 (Wyo. 2005) (quoting Pan Am. Petroleum Corp. v. Wyoming Oil and Gas Conservation Comm'n, 446 P.2d 550, 555, 557 (Wyo. 1968)). 

 

 

Id.  In the instant case, the CountyAssessor's expert testified the 1998 values represented fair market value and were, in the absence of some other indication of negative market influences, sufficiently current such that further economic obsolescence calculations, such as the income shortfall method, were unnecessary.  ThunderBasin's position was simply that when such calculations are completed, some shortfall in income is seen and thus, some economic obsolescence has occurred.  However, ThunderBasin's expert did not directly contest the CountyAssessor's position that reliance on reasonably current, arms length sales values was an appropriate basis upon which to conclude no further economic obsolescence calculations were necessary.3  Because the evidence upon which the CountyAssessor relied in concluding an economic obsolescence deduction was not appropriate was not contested, we hold the CountyBoard's order was adequate to conduct our review.  It would do little good to remand this matter in order for the CountyBoard to state the obvious, e.g. it found the 1998 allocated value, derived from an arms length transaction and provided by the taxpayer, fairly included economic obsolescence in 2001. 

 

 

Case No. 05-118 Black Thunder MineTax Year 2002

 

 

[¶36]   ThunderBasin presents several issues in its appeal from the CountyBoard's order affirming the CountyAssessor's valuation of the personal property at the Black Thunder Mine for the 2002 tax year.  We must, however, question whether ThunderBasin had the right to appeal the SBOE's decision in the first instance and, thus, whether we have jurisdiction to consider this appeal.  Issues of subject matter jurisdiction may be raised sua sponte at any time.  Scherer v. Schuler Custom Homes Const., Inc., 2004 WY 109, ¶ 10, 98 P.3d 159, 162 (Wyo. 2004).   

 

 

[¶37]   "The right to judicial review of administrative decisions is entirely statutory, and agency actions are not reviewable absent statutory authority."  Brandt v. TCI Cablevision of Wyoming, 873 P.2d 595, 597 (Wyo. 1994), quoting Casper Iron & Metal, Inc. v. Unemp. Ins. Comm'n, 845 P.2d 387, 391 (Wyo.1993).  See also, Antelope Valley Improvement and Serv. Dist. of Gillette v. State Bd. of Equalization for the State of Wyoming, 4 P.3d 876 (Wyo. 2000).  Wyo. Stat. Ann. §§ 39-11-102.1 and 39-11-109 (LexisNexis 2005) set forth the statutory requirements for appeals of tax determinations. 

 

 

[¶38]   A person who is adversely affected by the CountyBoard's decision may appeal to the SBOE.  Wyo. Stat. Ann. §§ 39-11-102.1(c) and 39-11-109.  The SBOE hears appeals in its adjudicatory capacity.  Antelope Valley, 4 P.3d at 878.  "When the [state board] acts in its adjudicatory capacity, the [b]oard resembles a ‘lower tribunal,' not an administrative agency."  Id.  After the SBOE issues its appellate decision, an "aggrieved person" may then appeal to the district court.  Wyo. Stat. Ann. § 39-13-109; W.R.A.P. 12.01 et seq. 4

 

 

[¶39]   The concern we have in this case is the effect of the SBOE's remand to the CountyBoard for further proceedings.  Because the SBOE concluded the County Board's decision did not comply with law and remanded the matter for further proceedings, Thunder Basin was the prevailing party and was not, therefore, "aggrieved" under Wyo. Stat. Ann. § 39-13-102 and Rule 12 of the Wyoming Rules of Appellate Procedure.  Moreover, the SBOE's remand order did not finally conclude the matter.  As we stated many years ago in Pub. Serv. Comm'n v. LowerValley Power and Light, Inc., 608 P.2d 660, 661 (Wyo. 1980):

 

 

Generally a judgment or order which determines the merits of the controversy and leaves nothing for future consideration is final and appealable, and it is not appealable unless it does those things.  4 C.J.S. Appeal and Error § 94, p. 252.  We conclude that the order of the district court was not designed finally to dispose of the matter but only to obtain additional information which should be considered by the commission in the first instance.  No substantial rights of the commission were adversely affected by that order.

 

 

The order remanding the matter to the CountyBoard for further proceedings did not finally determine the merits of the controversy and, consequently, did not affect ThunderBasin's substantive rights.5 

 

 

[¶40]   Moreover, we held in Bd. of Trustees of Mem'l Hosp. of Sheridan County v. Martin, 2003 WY 1, ¶ 16, 60 P.3d 1273, 1277 (Wyo. 2003), that "a judgment of the district court remanding an administrative proceeding to the agency for further proceedings is not an appealable order under W.R.A.P. 1.05."  Thus, even if ThunderBasin's appeal from the SBOE to the district court was authorized, the district court's order remanding the matter to the CountyBoard was, itself, not appealable.  We, therefore, dismiss ThunderBasin's appeal in Case No. 05-118 for a lack of jurisdiction.  In accordance with the SBOE's order, the matter remains remanded to the CountyBoard for further proceedings. 

 

 

Case No. 05-119 Coal Creek MineTax Year 2002

 

 

[¶41]   ThunderBasin objected to the CountyAssessor's assessment of the Coal Creek Mine for the year 2002 raising similar issues as it did in 2001, e.g. the 1998 dates and values were improperly relied upon for physical depreciation calculations, the CountyAssessor improperly calculated economic obsolescence, and the findings were inadequate.  The CountyAssessor used the same procedures for his 2002 assessment as he did in 2001 and consequently, our analysis above of those similar issues remains applicable in 2002.

 

 

            New Issues

 

 

                        Physical Depreciation - 1998 Values

 

 

[¶42]   With regard to use of the allocated 1998 sales values, ThunderBasin raised two new arguments in 2002.  First, it points to statements made in the Price Waterhouse appraisal upon which the values were based as indicating they were not to be used for this type of purpose.  The appraisal stated:

 

 

The premise of Fair Market Value is applicable only for this engagement, and accordingly, our results should not be used for any other purpose.  Further, the value reported does not represent the amount that might be realized from the sale of the individual assets on the open market or from their use for an alternate purpose.

 

 

However, it also stated:

 

 

We define Fair Market Value as the price at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, (Estate Tax Regs., Sec. 20.2031-(9b); Rev. Rul. 59-60, 1959-1, C.B. 273).  In estimating the Fair Market Value in Continued Use, we assumed that the subject property would continue to be part of the respective ongoing businesses, unless otherwise specified.

 

 

[¶43]   On the basis of this language, Thunder Basin claims the Price Waterhouse appraisal, on its face, was not intended to establish fair market value of the property for personal property tax purposes and its reliance on continued use and not value in exchange was inconsistent with the applicable tax statutes.  We find two problems with ThunderBasin's position.  First, the 1998 values from the Price Waterhouse appraisal were provided to the CountyAssessor by ThunderBasin for the very purpose of establishing the company's book values to be utilized by the CountyAssessor in determining personal property tax valuations.  It was not unreasonable for both the CountyAssessor and the CountyBoard to rely upon that information as reliable and a disclaimer by the accounting firm, the obvious purpose of which was to limit its own liability, should not prevent them from doing just that.  Second, despite ThunderBasin's attempts to inject confusion into the issue by reference to the concepts of continued use and use in exchange, the definition of fair market value used by Price Waterhouse bears a very close resemblance to that contained in both the statute and DOR rules.  Wyo. Stat. Ann. § 39-11-101(a)(iv); DOR Rules, Ch. 9 §4(f).  Further, the SBOE cites to authorities which suggest when a property is utilized at its highest and best use, its value in use and its value in exchange are the same.  Property Assessment Valuation 16 (International Association of Assessing Officers, 2d ed. (1996)).  We see nothing in the Price Waterhouse appraisal which would have prevented the CountyBoard from relying upon the information submitted to it by ThunderBasin as the book value of the property at issue.  See also, Guthrie, 2005 WY 79, ¶ 14, 115 P.3d at 1092; Airtouch Communications, 2003 WY 114, ¶ 39, 76 P.3d at 357; RT Communications, 11 P.3d at 927.

 

 

[¶44]   Second, in an effort to demonstrate use of the 1998 values resulted in an inaccurate valuation of the improvements, Thunder Basin presented the testimony of a local real estate appraiser who had compared the County Assessor's valuation of buildings on the mine property with its valuation of other commercial buildings in Campbell County and, on a per square foot basis, the latter values were much lower.  The obvious purpose of this evidence was to demonstrate the CountyAssessor's valuations were not uniform and equal as required by law.  However, the local appraiser admitted on cross-examination that the buildings he used for comparison were selected by ThunderBasin, none were located on mining property, and he did not attempt to find any similar mining buildings to include in his comparison.  Given the problems in finding true comparable values in this situation, little weight can be given to ThunderBasin's effort to show the values resulting from the cost approach were inaccurate by comparing them to randomly selected buildings.  Instead, the difference in the value of the improvements between the CountyAssessor's and ThunderBasin's appraisals arose simply from the CountyAssessor's use of the 1998 value which resulted in fewer years of depreciation.  As we previously discussed, that approach was not inconsistent with the statute or the regulations. 

 

 

[¶45]   We would also note the County Assessor's expert testimony in 2002 clarified that use of allocated sales data in the cost method for property tax purposes, such as was done in the case of the Coal Creek Mine, was typical and, in fact, had been used by the County Assessor to value personal property after the sale of at least three other Campbell County mines.  Use of either the original cost data or an allocated purchase price was acceptable for purposes of the cost method.  Even the CountyAssessor's expert testified that while his approach was an "accepted method," it was not the only one, and ThunderBasin's approach was also acceptable.  The choice between the two was, therefore, a matter of appraisal judgment.  RT Communications, 11 P.3d at 921.  There was substantial evidence to support the appraiser's approach; consequently, we find no basis upon which to reverse the CountyBoard's decision affirming the CountyAssessor's use of the 1998 values.

 

 

Economic Obsolescence

 

 

[¶46]   The CountyAssessor calculated the economic obsolescence for the Coal Creek Mine to be 50%, whereas ThunderBasin claimed it was 64.06%.  The CountyAssessor's expert concluded the personal property at the mine still had some value even though the mine was closed.  To estimate that value, he averaged zero production when the mine was closed and 100% of production at full capacity and used the resulting 50% as his economic obsolescence factor.  He testified this approach was justified in his appraisal experience and common practice throughout CampbellCounty in these kinds of situations.  However, he did recognize that if a mine remained idle for a "lengthy period," he would revisit that value and reduce it further.  

 

 

[¶47]   ThunderBasin's expert, on the other hand, used the production shortfall method, which required that he determine the production capacity of the mine.  On the basis of publicly filed mine plans, he used a production capacity of 18 million tons per year even though the mine had never operated at that level.  He then averaged the last three years of the mine's production and concluded it was operating at 18.16% of production capacity.  Using a scaling factor, he determined the economic obsolescence was 64.06%.  Had he used a different production capacity figure, such as 11 million tons which was the highest production at the Coal Creek Mine appearing in the record, his calculation would have resulted in a much lower percentage.

 

 

[¶48]   The record discloses quite clearly the difference between the two economic obsolescence calculations was one of opinion.  This was exemplified when the CountyAssessor's expert testified that ThunderBasin's 64.06% number was within the range of acceptable economic obsolescence, but "excessive."  Differences of opinion are not a sufficient basis upon which to reverse the CountyBoard's decision.  BP America Prod. Co. v. Dep't of Revenue, 2005 WY 60, ¶ 26, 112 P.3d 596, 608 (Wyo. 2005); Teton Valley Ranch v. State Bd. of Equalization, 735 P.2d 107, 113 (Wyo. 1987).  We conclude there was substantial evidence to support the CountyAssessor's economic obsolescence calculation for the Coal Creek Mine in 2002.

 

 

Adequacy of CountyBoard's Findings and Conclusions

 

 

[¶49]   As it did in the 2001 case, ThunderBasin complains the CountyBoard's findings and conclusion are insufficient to explain the reasons for its decision and allow for adequate judicial review.   We disagree.

 

 

[¶50]   The CountyBoard's findings for the Coal Creek Mine in 2002 detailed the valuation methods used by the two appraisers and compared those methods with the requirements of the statute and regulations.  They noted the CountyAssessor was relying upon the information provided by ThunderBasin and utilized a residual value of 30% which was within the 25% limit provided by the regulations.  The CountyBoard explained the CountyAssessor's approach of relying upon updated booked costs when a sale occurred was the approach used for all mines in CampbellCounty.  With regard to economic obsolescence, the findings explained how the CountyAssessor's expert calculated the utility of an idle asset and found that approach was a generally accepted appraisal method.

 

 

[¶51]   The County Board also carefully outlined the approach taken by Thunder Basin's expert, noted the information provided to him was different than that available to the County Assessor, and found the residual values he used were below those allowed by the regulations. Regarding the residual values, the CountyBoard specifically found insufficient information had been submitted to vary from the 25% limit in the regulations and to do so would result in unequal treatment of other mining properties in CampbellCounty.  Finally, the County Board concluded, after explaining both parties used acceptable appraisal methods, the differences were primarily the result of differing professional opinions and Thunder Basin had failed to overcome the presumption the value assigned by the County Assessor was valid and correct.  BP America Production Co. 2005 WY 60, ¶ 26, 112 P.3d at 608; Teton Valley Ranch, 735 P.2d at 113.  We conclude the CountyBoard's findings and conclusions adequately explain its decision. 

 

 

CONCLUSION

 

 

[¶52]   The CountyBoard had an adequate basis upon which to determine, in Cases Nos. 05-117 and 05-119, the CountyAssessor used a rational appraisal method, equally applied to all property, when he valued ThunderBasin's personal property at both mines in 2001 and at the Coal Creek Mine in 2002.  Applying the appropriate standard of review, we conclude there is no basis in the record upon which to reverse the CountyBoard and, therefore, affirm.  With regard to Case No. 05-118, we conclude the matter is not properly before this Court because it was remanded to the CountyBoard by both the SBOE and the district court.  Those orders were not appealable under W.R.A.P. 1.05, and the appeal is, therefore, dismissed for lack of jurisdiction.

 

 

[¶53]   Affirmed in part and dismissed in part.

 

 

FOOTNOTES

 

 

1The quoted material pertains to cases in which the Department of Revenue assesses the property.  The standard is, however, equally applicable to assessments by county assessors.  See, e.g., Teton Valley Ranch v. State Bd.  of Equalization, 735 P.2d 107 (Wyo. 1987).

 

2Thunder Basin's expert made a brief reference to the coal market and the possibility that it may not continue to support high spot prices.  However, lacking was any substantial evidence of economic forces within the coal industry that would cause one to believe the Black Thunder Mine suffered from substantial economic obsolescence.

 

 

3We recognize that ThunderBasin's expert did testify the allocated sales price was not prepared for purposes of personal property tax.  However, he did not contend that if a current, bona fide arms length sales price were available,  further economic obsolescence calculations would still be necessary.

 

 

4A county assessor is not an "aggrieved person" within the meaning of Wyo. Stat. Ann. § 39-11-109 and, consequently, may not appeal from a decision of the state board of equalization.  Brandt v. TCI Cablevision of Wyoming, 873 P.2d 595, 587 (Wyo. 1994). 

 

 

5Thunder Basin maintains the SBOE exceeded its authority by providing an extensive analysis of the evidence in its remand order and, therefore, somehow poisoned the proceedings on remand.  This argument presumes the SBOE cannot, in its appellate capacity, discuss the details of the CountyBoard decision and state whether, in its opinion, that decision complies with law.  In fact, that is precisely the role of the appellate body and often an appellate opinion, whether it be an administrative agency or a court, informs the entity to which the remand is made.  See, Antelope Valley, 4 P.3d at 878.  Whatever decision is made upon remand will be subject to review and if the direction of the SBOE decision is ultimately found to be in error, those issues can be raised properly on appeal.  The fact remains that because the matter has been remanded to the CountyBoard, the taxpayer's substantive rights have not yet been adversely affected.  We refuse to speculate on what actions the CountyBoard will take upon remand.