Lusby case raises concerns over access easementsWritten by Christy Hemken
“The judge found the Lusby Easement is ambiguous and ruled in favor of the Wyoming Game and Fish Department (WGFD) and Commission,” says Cheyenne attorney Harriet Hageman, who represents the landowners – Corey and Kathryn Davison, Ron and Stacey Richner and Marton Ranch Inc.
Hageman says her clients will appeal the decision to the Wyoming Supreme Court.
Wyoming Farm Bureau Federation Executive Vice President Ken Hamilton says the judge decided there was a conflict between the original contract for sale and the actual easement.
“That then provided him with the question of ambiguity in what was really meant to happen,” says Hamilton.
The judge indicated he thought the 1964 easement, which affects a two-mile stretch of the river, was “unartfully drafted and not carefully read by the lawyer(s) involved.” Hageman disagrees, stating that the easement is clear and unambiguous and should be enforced according to its terms.
Hamilton says the decision against the landowners raises many concerns on the signing of future easements with the WGFD. “I’m not sure I would ever enter into an easement with the Game and Fish after this decision,” he says.
“What this decision says is if you have an easement and the public starts to use it in a fashion not in accordance with terms of the easement, and if there’s ever a disagreement, the judge will decide in the fashion of the way the pubic is using it,” says Hamilton, “That’s very disturbing. What good are the words of an easement if the judge can come back and say the use is different, so the use is the governing decision?”
In the Lusby case Hamilton says the public has been using access outside the agreement, including letting dogs run free and leaving trash behind.
“The landowners were asking the Game and Fish to enforce the easement, and now the judge says the public hasn’t been using it in accordance with the terms, but the original authors meant the contract to say something different that it does anyway,” notes Hamilton.
“I think this decision will put a tremendous damper on anybody wanting to sign an easement agreement with the Game and Fish. I don’t know how you would write an easement that, at some point if the public started doing something different, would hold them to the terms,” continues Hamilton. “That part is extremely troubling to me.”
“Unless this issue gets further clarified, right now if one of our members called me and asked for advice on an access agreement with the Game and Fish, I’d say don’t do it,” says Hamilton of his organization, noting that he’d apply the advice to all access agreements, including access programs for hunting.
“I’m not sure where this whole thing will end up, but it’s disturbing that you can think the description of the easement means something, and it turns out they’re not that meaningful,” says Hamilton.
Hageman says the appeal will be filed within 30 days of when the final order is issued. She calls it a scary decision, but adds she thinks it’s bad enough the Wyoming Supreme Court should overturn it.