Tate v. Wyoming Livestock Board

932 P.2d 746, 1997 Wyo. LEXIS 29, 1997 WL 59342
CourtWyoming Supreme Court
DecidedFebruary 13, 1997
DocketNo. 96-138
StatusPublished
Cited by1 cases

This text of 932 P.2d 746 (Tate v. Wyoming Livestock Board) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tate v. Wyoming Livestock Board, 932 P.2d 746, 1997 Wyo. LEXIS 29, 1997 WL 59342 (Wyo. 1997).

Opinion

MACY, Justice.

Appellee Wyoming Livestock Board denied Appellant Susan Davies Tate’s request to have her Wyoming livestock brand renewed, declaring that the brand had been abandoned. The board also denied Tate’s application to have the brand reissued. Tate filed a petition for review with the district court, and that court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b).

We affirm the board’s decision.

ISSUES

Tate offers the following issues for our réview:

A. Is a Wyoming livestock brand property for purposes of Article I, Section 3 of the Wyoming State Constitution and the Fifth and Fourteenth Amendments to the United States Constitution that prohibit the taking of property without due process?
B. Is the rigid application of the forfeiture provision of Wyoming Statute § 11-20-115 to nonresident brand owners without actual notice to them of the proposed forfeiture, a taking, in violation of Article I, Section 3 of the Wyoming State Constitution and the Fifth and Fourteenth Amendments of the United States Constitution?

FACTS

Donn T. Davies conveyed the Spear D ( — > D) brand to Tate in 1976, using a bill of sale. Davies recorded this bill of sale with the board. The bill of sale listed Tate’s address as being Box 277, Ashland, Montana 59003. Tate thereafter notified the board on three occasions of changes in her address.

Tate rerecorded her brand in August of 1985. The rerecording receipt indicated that the brand had been renewed on January 13, 1986, and that it had to be rerecorded in 1995. During the 1994 legislative session, the Wyoming legislature amended § 11-20-115, changing the date by which Tate was required to rerecord her brand.1

On October 11, 1994, the board mailed a notice to Tate, informing her that her brand would expire on January 1, 1995, and that the renewal fee for her brand was due by that date. The board sent the notice to Tate’s most recent address which was shown on the brand records. Tate had moved, and the post office did not have a forwarding order on file for her; therefore, the notice was returned to the board. The board mailed another notice to the same address, and, again, the notice was returned because the forwarding order had expired.

Sometime after the sixty-day grace period which was allowed in § ll-20-115(a) for rerecording brands had expired, Tate contacted the board, seeking to renew her brand. The board informed her that she had missed the deadline and that she had thereby abandoned her brand. Tate sent a letter to [748]*748the board on June 12, 1995, explaining that she was living in Nevada, that she did not know that the law had been changed, and that she did not receive any notice of her obligation to renew her brand by January 1, 1995. Tate sent a later letter in which she informed the board that she had been advised that she could not simply renew her brand and that she had to apply to have the brand reissued. She informed the board that it was her desire to have the brand renewed but that, in the event that the brand was not renewed, she was applying to have the brand reissued. The board refused to reissue the brand because the brand would conflict with existing brands.

Tate asked the board to reconsider its ruling that the brand had been abandoned and its refusal to grant her application for the reissuance of the brand. The board affirmed its original decision, pointing out that it was the brand owner’s responsibility to update her address and that the brand conflicted with other brands. Tate again asked the board to reconsider its decision, and the board again affirmed its prior decision, electing to follow its policy not to permit renewals after the statutorily imposed deadline. Tate filed a petition for review of that administrative action with the district court, and the district court certified the case directly to this Court.

STANDARD OF REVIEW

When a case has been certified to this Court pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to a reviewing court of the first instance. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 959 (Wyo.1995). “The scope of review of administrative actions is defined in Wyo. Stat. § 16-3-114(c) (1990).” Id.

DISCUSSION

A. Property Interest

In Tate’s first issue, she claims that Wyoming recognizes brands as being property. The board agrees that a properly recorded brand gives its owner a constitutionally protected property interest in that brand.

The relevant statute provided:

Any brand recorded as required by law is the property of the person in whose name it is recorded, and is subject to sale, assignment, transfer, devise and descent as personal property. Instruments of writing evidencing sale, assignment or transfer shall be acknowledged and recorded in the office of the board in a book kept and indexed for that purpose. Acknowledgment and recording of such instruments have the same effect as to third parties as the acknowledgment and recording of instruments affecting real estate.

Wyo. Stat. § 11-20-109 (Supp.1995) (amended 1996). Pursuant to this statute, a brand owner has a property interest in his brand as long as the brand remains properly recorded.

B. Due Process

Although it is somewhat difficult to define Tate’s constitutional challenge with precision, it appears that she is claiming that, because of the amended notice provision contained in § 11-20-115, she was deprived of her brand without being given due process of law and that § 11-20-115 is unconstitutional because it does not contain a provision which defines what type of notice is required. The board responds by arguing that Tate failed to satisfy her burden of proving that the statute is unconstitutional.

We have said the following with regard to procedural due process protections:

Procedural due process principles require reasonable notice and a meaningful opportunity to be heard before government action may substantially affect a significant property interest. Due process considerations are invoked in administrative proceedings. A party claiming infringement has the burden of demonstrating that infringement by first showing the existence of a protected property interest and then showing the interest has been affected in an impermissible way.

Pfeil, 908 P.2d at 961 (citations omitted). “Statutes are presumed to be constitutional. Challengers bear the burden of proving that a statute is unconstitutional.” Id.

The statute at issue provides in pertinent part:

[749]*749At least sixty (60) days preceding the expiration date of the brand, the board shall notify by mail, at the address shown on the brand records, the party owning the brand that the brand must be rerecorded and if the brand has not been rerecorded within sixty (60) days from the expiration date ... the brand will be declared abandoned and will be allowed to other applicants.

Wyo. Stat. § ll-20-115(a) (Supp.1996) (emphasis added).

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Bluebook (online)
932 P.2d 746, 1997 Wyo. LEXIS 29, 1997 WL 59342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tate-v-wyoming-livestock-board-wyo-1997.