author: KITE, Justice.

text:
    2002 WY 91
    In the Matter of the Worker's Compensation Claim of Beri NEWMAN, Appellant (Petitioner), v. STATE of Wyoming ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 01-191.
    Supreme Court of Wyoming.
    June 19, 2002.

      Steven R. Helling, Casper, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.

      Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   KITE, Justice.

[11] Beri Newman injured her neck and back while working at a restaurant in March of 1998 and received worker's compensation benefits for chiropractic treatments from March to November 1998. In July 1999, she again sought chiropractic care, this time for headaches and double vision. The Wyoming Workers' Safety and Compensation Division (division) and the Office of Administrative Hearings (OAH) concluded these symptoms did not result from the original accident and, therefore, were not work related. The district court affirmed the administrative decision. We affirm and clarify the appropriate standard of review.

ISSUES

[12] We rephrase the issues as follows:

1. What is the proper standard of review when both the claimant and the division present evidence at a contested case hearing?
2. Does the record support the hearing examiner's determination that Ms. Newman's testimony lacked credibility and she failed to prove her July 1999 physical complaints/symptoms were caused by her March 1998 work-related accident?
3. In denying benefits, did the hearing examiner err in applying Wyo. Stat. Ann. § 27-14-6038(a) (LexisNexis 2001), which pertains to injury occurring over a substantial time period?

FACTS

[13] Ms. Newman was injured on March 18, 1998, while working at JB's Restaurant in Casper. She sought chiropractic care from H.R. Graber, D.C. In the written office questionnaire, Ms. Newman stated she had sprained her back while carrying "tray after tray" of dishes and had felt pain in her lower back immediately after the accident. In answer to the form's fill-in-the-blank questions, she indicated she never had headaches or vision problems but presently had low back problems, pain between her shoulders, neck problems, sore and weak muscles, and walking problems. In another form entitled Confidential Patient Case History, she indicated she had an occasional headache and had been previously treated by Dr. Graber in 1994 for neck problems. The insurance elaim forms Dr. Graber submitted to the division indicated Ms. Newman received treatment from March through November of 1998 for low back pain and a lumbosacral sprain, and the division paid benefits for this treatment. Dr. Graber released Ms. Newman from his care on November 18, 1998, recording in his Daily Notes Report that her condition was progressing as anticipated and she had made satisfactory progress and was ready for discharge.

[T4] In July of 1999, Ms. Newman returned to Dr. Graber for care. On or about July 14, 1999, he wrote a letter to the division stating he had previously treated Ms. Newman for a work-related injury for low back pain, lumbosacral subluxation, multiple cervical subluxations, cervicobrachial syndrome, lumbosacral sprain/strain, sacral/coccyx sub-luxation, and cervical neck pain. He further stated that Ms. Newman returned to his office on July 7, 1999, with symptoms similar to her March 1998 complaints and was continuing with treatment resulting from her original work-related accident. Dr. Graber did not mention in this letter that Ms. Newman had returned complaining of severe intermittent headaches and double vision, which were symptoms she had not experienced during the period of her prior treatment. The division denied benefits for several chiropractic bills stating variously that the services were not related to the original worker's compensation injury of March 18, 1998, "to the back" or "to the back and neck." The division based its denial of benefits in large part on an August 19, 1999, medical review panel recommendation. The three chiropractors who participated on the panel questioned the relationship between the new problems and the initial injury and opined the most recent symptoms were not a continuation of the previous injury.

Ms. Newman appealed the denials. The OAH held a contested case hearing on January 20, 2000, which was continued to April 13, 2000, for completion. It issued its Order Denying Benefits on June 16, 2000, concluding Ms. Newman had failed to prove by a preponderance of the evidence that her headaches and double vision were an injury as that term is defined in Wyo. Stat, Ann. § 27-14-102(a)(xi) (LexisNexis 2001) and an injury which occurred over a substantial period of time pursuant to § 27-14-608(a). In reaching this determination, the hearing examiner found Ms. Newman's testimony lacked eredibility because it was inconsistent with her March 1998 injury reports. Similarly, she concluded the reports of Dr. Gra-ber and Don Thai, M.D., an independent medical examiner, were of little evidentiary value because they were based on Ms. Newman's version of the events.

[T6] Ms. Newman filed a petition for review pursuant to W.R.A.P. 12.01. On July 27, 2001, the district court issued a detailed decision letter and Order Affirming Agency Decision. It held the hearing examiner's decision was supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Ms. Newman appeals from this order.

STANDARD OF REVIEW

Appeal from District Court's Review

[T7] "When considering an appeal from a district court's review of ageney action, we accord no special deference to the district court's conclusions. Instead, we review the case as if it had come directly to us from the administrative agency." French v. Amax Coal West, 960 P.2d 1023, 1027 (Wyo.1998) (citation omitted).

Applicable Standard-Arbitrary or Capricious or Substantial Evidence?

[T8] In appeals of agency decisions, both the court and the parties have historically treated the applicable standard of review in an imprecise and, consequently, often inconsistent manner. Specifically, with regard to worker's compensation cases appealed pursuant to the Wyoming Administrative Procedure Act (WAPA), Wyo. Stat. Ann. § 16-3-114 (LexisNexis 2001), it appears there has been an unintentional and incremental muddling of the arbitrary or capricious standard and the substantial evidence test when agency decisions are reviewed. The blurring of these concepts has led to the citation of every possible administrative review standard in a scattergun effort to hit the target. This particular case is no exception.

[19] Section 16-38-l14(c) (emphasis added) provides:

(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
(i) 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.

Despite being separately expressed in the statute, these two tests have come to be used interchangeably by courts and litigants alike so as to hardly have independent meanings, a result we conclude was not intended by the legislature. "In interpreting a statute, every word, clause and sentence must be considered so that no part will be rendered inoperative or superfluous. Each element must be given meaning." State ex rel. Wyoming Worker's Compensation Division v. Mahoney, 798 P.2d 836, 838 (Wyo.1990) (citation omitted); see also Merkison v. State, 996 P.2d 1138, 1142 (Wyo.2000).

[ T10] In what can be viewed as a first step in the direction of addressing the problem we hope to cure today, this court noted "Itlhe relationship between the substantial evidence rule as it pertains in administrative proceedings and the [arbitrary or capricious] rule that is used when the agency concludes that there has been a failure of proof has produced some consternation." Helm v. State ex rel. Wyoming Workers' Safety and Compensation Division, 982 P.2d 1236, 1240 (Wyo.1999). We attempt, in this opinion, to provide further clarification of these rules for the benefit of litigants, counsel, administrative agencies, hearing examiners, and the district courts.

[T11] We are not the only jurisdiction grappling with this conundrum:

There has been confusion under the Federal Administrative Procedure Act in distinguishing the substantial evidence test from the arbitrary and capricious standard. Thus, one federal court has noted "an emerging consensus of the Courts of Appeals" that the distinction between the two is "largely semantic." Pacific Legal Foundation v. Department of Transportation, 593 F.2d 1338, 1343, n. 35 (D.C.Cir.), cert denied, 444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979). We conclude that under the APA ... the sole determination by the reviewing court as to issues of fact before the agency is whether there was substantial evidence in the agency record to support the ageney decision.

State Board of Health of Commonwealth of Virginia v. Godfrey, 223 Va. 423, 290 S.E.2d 875, 881 (1982). Likewise, the District of Columbia Cireuit Court noted the tests were all but indistinguishable when used to, assess the factual support of a decision:

The district court stated, altogether properly, that it would "review the whole record of the administrative action and determine whether that action was arbitrary, capricious, and an abuse of discretion not in accordance with law." See Caiola v. Carroll, Civ. Action No. 85-3767, slip op. at 6 (D.D.C. Sept. 30, 1986); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 LEd.2d 136 (1971). While the district court held that the agency's decision was supported by "substantial evidence," we note that the distinction between the "substantial evidence" standard and the "arbitrary and capricious" standard has been described as "largely semantic." See Association of Data Processing Serv. Orgs., Inc. v. Board of Governors of the Fed. Reserve Sys., 745 P2d 677, 688-84 (D.C.Cir.1984) ("[When the arbitrary and capricious standard is performing that function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test, since it is impossible to conceive of a 'nonarbitrary' factual judgment supported only by evidence that is not substantial in the APA sense ...."); see also B. Schwartz, Administrative Law, § 10.15 at 614 (2d ed.1984) (quoting Pell v. Board of Education, 34 N.Y.2d 222, 231, 356 NY.S.2d 833, 313 N.E.2d 321 (1974) ("Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard.")).
The court's role, therefore, is to review the whole administrative record to determine whether there was a rational basis for the agency's action.

Caiola v. Carroll, 851 F.2d 395, 398 (D.C.Cir.1988); see also Midtec Paper Corporation v. United States, 857 F.2d 1487, 1498 (D.C0.Cir.1988) (holding that, when the arbitrary and capricious standard is performing the function of assuring factual support, there is no substantive difference between what it requires and what would be required of the substantial evidence test); Nicolet High School District v. Nicolet Education Association, 118 Wis.2d 707, 348 N.W.2d 175, 179 (1984) (" [lin almost any case that comes to mind, a decision ... supported by substantial evidence ordinarily would be held not to be arbitrary or capricious.' [Westring v. James, 71 Wis2d 462,] 476, 238 NW.2d 695 [(1976)].... [The converse [is] true also, because arbitrary action can be viewed as that without a rational basis or, in other words, lacking any substantial evidence supporting the decision"); Amusement and Music Operators Association v. Copyright Royalty Tribunal, 676 F.2d 1144, 1152 (7th Cir.1982) (holding the distinction between the arbitrary or capricious standard and the substantial evidence test is without practical significance).

[112] In this jurisdiction, we have described the substantial evidence test in cases where factual findings are challenged as follows:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. | If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the ageney and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might gccept in support of the agency's conclusions. -It is more than a seintilla of evidence.

State ex rel. Wyoming Workers' Safety and Compensation Division v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001) (citations omitted). However, in cases where the agency concludes the party with the burden of proof has failed to prove its case, we have applied the arbitrary or capricious standard:

A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. 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 "[alrbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Stat. § 16-8-114(c)(@i) (1990).

Pederson v. State ex rel. Wyoming Workers' Compensation Division, 939 P.2d 740, 742 (Wyo.1997) (citation omitted).

[113] This court began utilizing the arbitrary or capricious test long before the passage of the WAPA to review the broad exercise of discretionary powers by administrative entities.

In ordinary cases the board is vested with a wide discretion in the matter of renewing leases. That discretion is doubtless to be exercised reasonably rather than arbitrarily, and with a due regard to the rights of the lessee as well as the interest of the state, taking into consideration all the statutory regulations relating to the leasing of state lands. It is probable, however, that the discretion is such that, except in case of fraud or grave abuse resulting in manifest wrong and injustice, the courts would not feel warranted in interfering with its exercise.

Cooper v. McCormick, 10 Wyo. 379, 69 P. 301, 303 (1902) (citation omitted); see also Baker v. Brown, 12 Wyo. 198, 74 P. 94, 96 (1903). These early cases apparently did not involve a formal administrative hearing or thorough records. See Bunten v. Rock Springs Grazing Ass'n, 29 Wyo. 461, 215 P. 244, 250 (1923) (holding the taxpayer is entitled to the assessor's and the board of equalization's honest judgments in fixing the value of property; they will not be permitted to do so in an arbitrary, capricious, and fraudulent manner, and courts will restrain them from becoming despotic); Chicago, B. & Q.R. Co. v. Byron School Dist. No. 1, 37 Wyo. 259, 260 P. 537, 539 (1927) (" 'Where ... the action of the trustees or of the county superintendent is clearly shown to be so unreasonable and unjust to those complaining as to amount to oppression and a wanton disregard of their rights and interests, then a court of equity will interfere to set aside such unjust and oppressive decision and grant such other relief as may be necessary and proper.' " Quoting Fisher v. Birkey, 299 IIl. 145, 132 N.E. 498, 500 (1921)). This is consistent with authority that agency action is reviewed utilizing [the arbitrary or capricious] standard." Thomas Brooks Chartered w. Burnett, 920 F.2d 634, 643 (10th Cir.1990); see also 2 Am.Jur.2d Administrative Low § 529 at 518 (1994) ("The law is also reasonably clear that the arbitrary or capricious standard governs review of agency action in instances where no hearing or formal findings on a record are required, and there is no statutory requirement of a different test").

[114] In Banzhaf v. Swan Co., 60 Wyo. 201, 148 P.2d 225, 228 (1944), involving state land lease renewals, this court interpreted a provision of the applicable statutes providing for de novo judicial review of administrative action as follows:

[Thhe trial "de novo" as mentioned in Seetion 91-306, W.R.S.1981, is simply limited to a determination on the part of the District Court whether on the facts proven there was "an illegal exercise" of the Board's discretion, a case of fraud, or a "grave abuse of such discretion[."] Unless one of these three elements should appear the action of the Board should not be disturbed.

See also Rayburne v. Queen, 78 Wyo. 359, 326 P.2d 1108, 1111 (1958).

[115] By the late 1950s and early 1960s, the burden of proving arbitrary or capricious action was clarified:

The burden of proof to show the refusal to be arbitrary or capricious is on the applicant. Halpern v. Andrews, D.C.Pa., 21 F.2d 969. In Application of Haim, 195 Misc. 612, 88 N.Y.S.2d 840, 842, the court stated:
It is settled by abundant authority that, in the absence of clear and convincing proof that an administrative body or public official has acted arbitrarily, unreasonably or capriciously, their action and determination will be sustained. Citation of authority is unnecessary; the rule has become elementary.

Whitesides v. Council of City of Cheyenne, 78 Wyo. 80, 319 P.2d 520, 526 (1957).

We have repeatedly said the courts are warranted in setting aside action of an administrative ageney only where its action is arbitrary or fraudulent or where there is an illegal exercise of discretion; and the burden of proving arbitrary, illegal or fraudulent action is on the complainant.

Marathon Oil Company v. Welch, 379 P.2d 832, 836 (Wyo.1963). Also in the 1960s, this court began to establish standards regarding sufficient information to support an administrative decision:

This court, in the Fremont County case [School District No. 9, in County of Fremont v. District Boundary Board in and for Fremont County, 351 P.2d 106, 111 (Wyo.1960)] made it clear that a district boundary board must have before it sufficient information upon which it may properly find that a change is to the best interests of all the people concerned. The decision of the board must not only be based upon substantial evidence but also the evidence must relate to both the annexed and the annexing areas. Otherwise ... the procedure tends to be "of an arbitrary nature."

Clear Creek Cattle Co. v. Davis, 384 P.2d 719, 720 (Wyo.1968); see also Monahan v. Board of Trustees of Elementary School District No. 9, County of Fremont, 486 P.2d 235, 237 (Wyo.1971).

[T16] After the WAPA statutory standards of review became effective in 1966, we applied those more explicit review standards as seen from the following worker's compensation case:

We have held it essential to surviving judicial review that the record of a contested agency action contain such factual findings as would permit a court to follow the agency's reasoning from the evidentiary facts on record to its eventual legal conclusions. Larsen v. Oil and Gas Conservation Comm'n, 569 P.2d 87, 90-91 (Wyo.1977); Powell v. Board of Trustees, Crook County School District No. 1, 550 P.2d 1112, 1120 (Wyo.1976). 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. Absent such information, the agency decision must be set aside as arbitrary. Western Radio Communications, Inc. v. Two-Way Radio Service, Inc., 718 P.2d 15, 20 (Wyo.1986); Monahan v. Board of Trustees, Elementary School District No. 9, 486 P.2d 235, 237 (Wyo.1971). The need for such strict compliance with statutory provisions relating to the content of the agency record derives largely from a need to ascertain whether contested case hearings actually provide statutorily mandated procedural protections. To assure the due process protections inherent in the WAPA's statutory scheme will be given effect, this court requires strict compliance with those procedural provisions.

Jackson v. State ex rel. Wyoming Workers' Compensation Division, 786 P.2d 874, 878 (Wyo.1990); see also Mekss v. Wyoming Girls' School, State of Wyoming, 818 P.2d 185, 201-02 (Wyo.1991).

[¥ 17] In 1995, in the case City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995), we first definitively held the arbitrary or capricious test should apply exclusively in cireum-stances where a claimant is found to have failed to carry his burden of proof:

[ Whe are satisfied such cases come within the argument ... with respect to ... the sufficiency of the evidence, and the case must be considered under the arbitrary, capricious, and contrary to law language of Wyo. Stam § 16-83-114(c)@ii) (1990). ... An agency's decision totally contrary to the evidence in the record is subject to such a test. We would have no equivocation in reversing and remanding such a decision.

This standard of review was applied in Pederson, 939 P.2d at 742, and consistently thereafter in worker's compensation cases where the claimant failed to carry the burden of proof. See Bruns v. TW Services, Inc., 2001 WY 127, ¶ 14, 86 P.3d 608, ¶ 14 (Wyo.2001); Rice v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2001 WY 21, ¶¶ 10-11, 19 P.3d 508, ¶¶ 10-11 (Wyo.2001); Sheth v. State ex rel. Wyoming Workers' Compensation Division, 11 P.3d 375, 378 (Wyo.2000); Brees v. Gulley Enterprises, Inc., 6 P.3d 128, 132 (Wyo.2000); Beitel v. State ex rel. Wyoming Workers' Compensation Division, 991 P.2d 1242, 1244-45 (Wyo.1999); Clark v. State ex rel. Wyoming Workers' Safety and Compensation Division, 934 P.2d 1269, 1270-71 (Wyo.1997).

[118] Neither the division nor litigants have been consistent in following these precedents which leads to the appellants attacking and the appellees defending the factual basis for an agency decision relying upon different standards of review. Thus, it is important that we resolve whether these tests as applied to factual findings are substantively distinct or, as other jurisdictions have concluded, whether the difference is in name only. We must also revisit our holdings which may have implied that the standard of review is dependent on whether a party below was found to have failed to carry its burden of proof.

[119] Both tests require review of the entire record. The statute specifically provides review of the whole record with regard to the substantial evidence test. The arbitrary or capricious test requires the reviewing court to determine whether the agency reasonably could have made its finding and order based upon all the evidence before it.

[120] The substantial evidence test seems to require more of an agency than does the arbitrary or capricious standard. 2 Richard J. Pierce, Jr., Administrative Law Treatise § 11.4 at 807 (dth ed.2002); see also 5 Jacob A. Stein et al., Administrative Law § 51.02 at 51-60 to 51-89, § 51.08 (1995). It can be argued that the substantial evidence test demands more of the agency because it requires evidence in the record to support the decision. It also suggests the corollary that the arbitrary or capricious standard is more lenient and deferential to the agency than the substantial evidence test because it requires only that there be a rational basis for the agency's decision. See Howe v. Health Facilities Appeals Board, 20 Mass.App.Ct. 531, 481 NE2d 510, 518 (1985) (holding that, under the substantial evidence test, the ageney decision must rest on such evidence a reasonable mind might accept as adequate to support a conclusion, but, under the arguably more lenient arbitrary or capricious test, there needs to be only a rational basis for the decision); Adam Smith Enterprises, Inc. v. State Department of Environmental Regulation, 553 So.2d 1260, 1273 (Fla.Dist.Ct.App.1989) (holding that, "under this arbitrary and capricious standard, an ageney is to be subjected only to the most rudimentary command of rationality").

In Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 143 [87 S.Ct. 1507, 18 L.Ed.2d 681] (1967), the Court said that the substantial evidence test provided "a considerably more generous judicial review than the 'arbitrary and capricious' test." . Four Justices emphasized the more demanding nature of the substantial evidence test in Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 705 [100 S.Ct. 2844, 65 LEd.2d 1010] (1980) "Careful performance of this task is especially important when Congress has imposed the comparatively rigorous 'substantial evidence' standard." Finally, a unanimous Court characterized the arbitrary and capricious test as "more lenient" than the substantial evidence test in American Paper Institute v. American Electric Power Service Corp., 461 U.S. 402, 412 n. 7 [103 S.Ct. 1921, 76 L.Ed.2d 22] (1983).
Unfortunately, while the Court consistently characterizes the arbitrary and capricious test as less demanding than the substantial evidence test, the Court has never explained the difference between the two. Since the substantial evidence test is extremely deferential, cireuit courts have experienced difficulty applying the distinction the Court continues to draw. Circuit courts frequently treat the two tests as identical, referring to their "tendency to converge" and to the distinction between the two as "largely semantic."

[T21] When the soundness of a factual finding is challenged, it is unclear what rational purpose supports the different levels of serutiny of an administrative action. In practice, the application of the standards has the appearance, if not the effect, of treating an appealing agency and an appealing claimant disparately to no definable end. A plausible explanation is found in Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364, 1365 (1988), where the substantial evidence test was held to apply to all reviews of administrative findings of fact. The Pennsylvania court recognized an exception,

where the burdened party is the only party to present evidence and does not prevail before the agency, the "substantial evidence" test falters. If no evidence was presented to support the prevailing party, there is no evidence upon which to apply the "substantial evidence" test: it is impossible to find substantial evidence to support a position for which no evidence was introduced. In such cases, therefore, the appropriate scope of review ... is whether the agency erred as a matter of law or capriciously disregarded competent evidence....
. At the very least the findings and conclusions of the fact-finder must have a rational basis in the evidence of record and demonstrate an appreciation and correct application of underlying principles of substantive law to that evidence....
. In all matters, however, where both parties present evidence, the agency's determination will be reviewed under the "substantial evidence" test..

Russell, 550 A.2d at 1365-66 (quoting Jasper v. Workmen's Compensation Appeal Board, 498 Pa. 263, 445 A.2d 1212, 1213 (1982)). The opinion also cites examples of holdings reflecting arbitrary or capricious agency action when only the burdened party presented evidence and did not prevail including situations where an agency willfully disregarded otherwise credible evidence or entered internally inconsistent findings of fact and conclusions of law.

[122] The distinction made by the Pennsylvania court is logical. When both parties present evidence 'and one seeks review of the factual basis for the agency decision, there is no identifiable justification to subject them to different standards of review. However, when only the burdened party presents evidence and does not prevail, the question becomes whether the agency decision was rational and was arrived at properly because it clearly cannot be based on the evidence presented. On this reasoning, we hold the substantial evidence test is the appropriate standard of review in appeals from WAPA contested case proceedings when factual findings are involved and both parties submit evidence. We further hold, when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision.

{[T23] Despite this holding, even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision could still be found to be arbitrary or capricious for other reasons. The arbitrary or capricious standard works as a "safety net" to catch agency action which prejudices a party's substantial rights or which may be contrary to the other WAPA review standards yet is not easily categorized or fit to any one particular standard. Section 16-3-ll14(c)@ii)y; Community Savings and Loan Association of College Station, Texas v. Vandygriff, 630 S.W.2d 457, 459 n. 3 (Tex.App.1982). For example, the administrative record may be replete with evidence supporting the decision, and yet the agency may have willfully discounted credi-bie evidence, refused to admit certain testimony or documentary exhibits, or failed to provide findings of fact or conclusions of law. This listing is demonstrative and not intended, by any means, as an inclusive catalog of all possible circumstances. However, when both parties present evidence, the substantial evidence test should be utilized to review the soundness of the agency's factual findings.

Review of the Whole Record

[124] We also take this opportunity to make an additional clarification. In the past, occasionally, but not consistently, we have recited the following substantial evidence standard:

"If, after examining the entire record, we find substantial evidence to support the agency's finding, we will not substitute our own judgment for that of the agency. Instead, we will uphold the agency's finding.... In addition, we examine only the evidence which favors the prevailing party, allowing every favorable inference, while omitting consideration of any conflicting evidence. Matter of Injury to Carpenter, 736 P.2d 311, 312 (Wyo.1987)."
To the same effect are Jaqua v. State ex rel. Wyoming Workers' Compensation Div., 873 P.2d 1219, 1220-21 (Wyo.1994); Bearden v. State ex rel. Wyoming Workers' Compensation Div., 868 P.2d 268, 269 (Wyo.1994)....

Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 873, 876 (Wyo.1994) (quoting Sinclair Trucking v. Bailey, 848 P.2d 1349, 1351 (Wyo.1993)) (emphasis added). This statement is obviously internally inconsistent. The mandate to review the entire record cannot possibly be accomplished if only the evidence favorable to the prevailing party is examined. This "prevailing party's evidence" concept developed in the context of judicial review of civil cases and, without careful consideration of the administrative law doctrine, was intermittently utilized in the review of administrative decisions. Mountain States Telephone & Telegraph Company v. Carpenter, 736 P.2d 311, 312 (Wyo.1987) (worker's compensation); Abas v. State ex rel. Wyoming Worker's Compensation Division, P.2d 1153, 1156 (Wyo.1985), overruled on other grounds by Parnell v. State ex rel. Wyoming Worker's Compensation Division, 735 P.2d 1367 (Wyo.1987) (worker's compensation); Stockton v. Sowerwine, 690 P.2d 1202, 1205 (Wyo.1984) (real estate transaction).

[125] The WAPA, effective January 1, 1966, initially did not address how the record should be considered in the conduct of judicial review. 1965 Wyo. Sess. Laws ch. 108; Dubois Telephone Exchange v. Mountain States Telephone and Telegraph Company, 429 P.2d 812, 816 n. 1 (Wyo.1967). However, the statute was modified:

This subsection was amended, effective May 25, 1979, to require agency action, findings and conclusions to be supported by substantial evidence, but also to provide for a review of the "whole record." (FN1) Under this standard, we do not examine the record only to determine if there is substantial evidence to support the Board's decision, but we must also examine the conflicting evidence to determine if the Board could reasonably have made its findings and order upon all of the evidence before it.

Board of Trustees of School District No. 4, Big Horn County v. Colwell, 611 P.2d 427, 429 (Wyo.1980). Continued reliance in administrative appeals on the "prevailing party's evidence" clause after enactment of the WAPA was perhaps questionable since the statute established clear standards for judicial review of administrative actions. However, after the 1979 amendment specifically provided for review of the "whole" record, application of the "prevailing party's evidence" clause was clearly contrary to the law. We conclude the "prevailing party's evidence" clause has no place in judicial review of administrative action and shall no longer be considered or applied in contested case decisions subject to the WAPA.

Findings of Fact

[126] When factual findings are challenged, we will affirm those findings if they are supported by substantial evidence.

In contested cases conducted before administrative agencies, the deference that normally is accorded the findings of fact by a trial court is extended to the administrative agency, and we do not adjust the decision of the agency unless it is clearly contrary to the overwhelming weight of the evidence on record. Mekss [v. Wyoming Girls' School, State of Wyoming, 813 P.2d 185 (Wyo.1991)]; State ex rel. Wyoming Workers' Compensation Div. v. Brown, 805 P.2d 830 (Wyo.1991). This is so because, in such an instance, the administrative body is the trier of fact and has the duty to weigh the evidence and determine the credibility of witnesses. Gilmore v. Oil and Gas Conservation Comm'n, 642 P.2d 773 (Wyo.1982).

Wyoming Steel & Fab, Inc., 882 P.2d at 875.

DISCUSSION

Was the OAH Decision Supported by Substantial Evidence?

[127] In this case, the division agreed that the initial claims made by Ms. Newman were compensable.

The Division's uncontested award of benefits is not a final adjudication that precludes the Division from challenging future benefits. The statutory language of the Wyoming Workers' Compensation Act confers finality on the benefits paid to the employee through uncontested determinations, subject to the exceptions found in Wyo. Stat. Ann. § 27-14-605. The statutory language, however, does not guarantee a claimant future benefits on the basis of a prior award nor does public policy favor the payment of an unjustified worker's compensation 'claim. Therefore, an employee/claimant must prove that he was. entitled to receive benefits for all outstanding claims despite previous awards for the same injury. The doctrines of res judicata and collateral estop-pel apply in workers' compensation claims when adjudicated before the Office of Administrative Hearings. Subject to the provisions of Wyo. Stat. Ann. § 27-14-605(a), the Division is estopped from redetermining the compensability of an injury as it relates to claims which have been approved or paid.

Hall v. State ex rel. Wyoming Workers' Compensation Division, 2001 WY 136, ¶ 14, 87 P.3d 373, ¶ 14 (Wyo.2001) (citations omitted & emphasis added); see also Tenorio v. State ex rel. Wyoming Workers' Compensation Division, 931 P.2d 234, 239 (Wyo.1997). "Injury" is defined as

any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extra-hazardous duties incident to the business.

Section 27-14-102(a)(xi). "A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence, including that the claimed injury arose out of and in the course of employment." Clark v. State ex rel. Wyoming Workers' Safety and Compensation Division, 2001 WY 132, ¶ 19, 36 P.3d 1145, ¶ 19 (Wyo.2001) (citation omitted), Therefore, it was Ms. Newman's burden to prove the new symptoms of severe intermittent headaches and double vision reported in July of 1999 were work-related injuries within the definition of § 27-14-102(a)(xi). The hearing examiner determined Ms. Newman failed in this endeavor. We must determine whether there is substantial evidence to support the hearing examiner's conclusion.

[128] The hearing examiner's findings of fact reflect Dr. Graber testified in his deposition that Ms. Newman hurt her back when she fell carrying a tray of dishes and she complained on March 17, 1998, of intermittent headaches over her entire head. He also testified he ceased treating Ms. Newman on November 18, 1998, but she returned for treatment of severe intermittent headaches and double vision affecting her balance on July 7, 1999. Dr. Graber relied on the presence of headaches on March 17, 1998, to support the interrelatedness of the original injury to the headaches Ms. Newman experienced on July 7, 1999.

[429] The hearing examiner found Dr. Graber's narrative report of the initial office visit listed only "headache" under patient symptoms and did not contain any reference to a fall and his handwritten notes did not indicate headaches as a subjective complaint until September 9, 1998. That entry indicated a new symptom of minimal intermittent headaches over the entire head. In addition, when Dr. Graber was asked if he obtained additional history from Ms. Newman about the events between November 1998 and July 1999, he testified he was sure he would have made some examinations before commencing treatment again but could not provide documentation.

[T80] The hearing examiner ordered an independent medical examination by Dr. Thai, a neurologist. The examination report reflected that, prior to the March 18, 1998, accident, Ms. Newman did not have a significant history of headaches and Dr. Thai could only make inferences from the information Ms. Newman gave him and what he could gather from the examination because he did not examine her at the time of the injury. His impression was that she did not likely suffer from a significant postconcussive syndrome but a radiculopathy of C6 might be responsible for her continued neck pain. He indicated there are two possible types of headaches: post-traumatic migraine, which follows a concussion; and occipital neuralgia, which can be related to neck trauma. He also stated double vision can result from right postural lateral rectus palsy caused by a trauma to the eye through various conditions such as diabetes but discounted this possibility based on the "mechanism"-the fall-of her trauma. In short, Dr. Thai was placed in a position of essentially making the best educated guess he could from examining Ms. Newman almost two years after the accident with only the history she relayed.

[131] The hearing examiner found Dr. Thai based his opinion on inferences from the information provided to him by Ms. Newman and even he determined Ms. Newman's double vision was not caused by the trauma of her injury. The examiner further found Dr. Graber's and Dr. Thai's opinions were based on information provided by Ms. Newman as to how the injury occurred and, because Ms. Newman's testimony lacked credibility, those opinions were of little value.

In our examination and review of a hearing examiner's determination, we defer to the hearing examiner's findings of fact. We will examine conflicting and contradictory evidence to see if the hearing examiner reasonably could have made its findings based on all the evidence before it. The findings of fact may include determinations of witness credibility, as the hearing examiner is charged with determining the eredi-bility of the witnesses. In our review, we will not overturn the hearing examiner's determinations regarding witness credibility unless they are clearly contrary to the overwhelming weight of the evidence. Hurley v. PDQ Transport, Inc.[,] 6 P.3d 134, 137 (Wyo.2000).

Hall, 2001 WY 186, ¶ 11, 37 P.3d 373.

[132] Ms. Newman claims there is no evidentiary support for the hearing examiner's conclusion that her testimony lacked credibility. The order reflected the following findings of fact: (1) Ms. Newman testified she suffered a strain to her back and neck on March 13, 1998, as a result of a fall while carrying a tray of heavy dishes; (2) she sought chiropractic treatment from Dr. Gra-ber and was diagnosed with low back pain, lumbosacral sprain/strain, lumbosacral sub-luxation, sacral/coceyx subluxation, multiple cervical subluxations, cervical neck pain, and cervicobrachial syndrome; (8) Ms. Newman completed a report of injury on March 18, 1998, stating she suffered a strain to the mid back and to her lower back while she was carrying trays of empty dishes; (4) when she completed Dr. Graber's intake form, she noted she had pain in her lower back, neck pain, and occasional headaches; and (5) on a worker's compensation questionnaire completed at Dr. Graber's office, Ms. Newman indicated she sprained her back while carrying tray after tray of dishes, she never had headaches, and she presently had low back problems, pain between the shoulders, and neck problems. Summarizing these findings, the hearing examiner concluded:

13. The evidence indicates] that Newman has told medical providers that she suffered a strain or sprain to her mid and lower back and neck as a result of a fall while carrying a tray of dishes on March 13, 1998. Newman filed a report of injury and did not indicate that she fell while carrying a tray of dishes. Nor did Newman indicate on forms she filled out in Dr. Graber's office that she had been injured by a fall while carrying dishes. The evidence shows that Newman has made oral reports of a fall with a tray of dishes[;] however, there are no written reports of a fall while carrying dishes.... This Office finds that Newman's testimony lacks eredi-bility.

[133] We have reviewed the entire record and are satisfied that the hearing examiner fairly and accurately represented the nature of the evidence. Had Ms. Newman actually "collapsed" to the floor as she testified, she would have included this information in at least one of the several written questionnaires/reports she completed at the time of her injury. As the district court aptly observed, Ms. Newman seeks a retrial on appeal of the witnesses' credibility and the sufficiency of her evidence to support her claim. This, of course, is inappropriate. Our functions are only to ascertain whether there is substantial evidence to support the agency's findings of fact and to assure they are not clearly contrary to the overwhelming weight of the evidence. The findings of fact which logically lead to the ultimate finding that Ms. Newman failed to prove her headaches and double vision developed from the injury she sustained March 18, 1998, are supported by substantial evidence and are not contrary to the overwhelming weight of the evidence.

Application of § 27-14-603(a)

[134] Ms. Newman also contends that the hearing examiner erred in applying § 27-14-603(a), which pertains to the burden of proof applied to an injury occurring over a substantial time period. Because we affirm the hearing examiner's determination that Ms. Newman failed to prove an injury as defined by the act, it is unnecessary for us to consider this issue.

CONCLUSION

[135] We hold, in WAPA appeals of contested case decisions, the substantial evidence rule shall be applied to review factual findings when both parties have submitted evidence. Without exception, the substantial evidence test requires review of the "whole" record or those parts as designated by the parties. If the party with the burden of proof is the only party to submit evidence and does not prevail, the arbitrary or capricious standard shall be applied to review the rational basis for the agency decision. In this instance, upon review of the entire record, we conclude substantial evidence supported the OAH's Order Denying Benefits.

[186] Affirmed.

      . (1) Constitutional right, power, privilege, or immunity; (2) in excess of statutory jurisdiction, authority, or limitations or lacking statutory right; (3) without observance of procedure required by law; or (4) unsupported by substantial evidence. Section 16-3-114(c)@®).

      (c) The Court's review pursuant to the provisions of this Section shall be limited to a determination whether or not: (1) The agency acted without or in excess of its powers; (2) the decision or other agency action was procured by fraud; (3) the decision or other agency action is in conformity with law; (4) the findings of facts in issue in a contested case are supported by substantial evidence; and (5) the decision or other agency action is arbitrary, capricious or characterized by abuse of discretion.
      1965 Wyo. Sess. Laws ch. 108, § 14(c).

      . Footnote one reads as follows:
      Section 9-4-114(c) W.S.1977, Supp., provides: 1979 Cum.
      (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
      (i) 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.
      Board of Trustees of School District No. 4, Big Horn County v. Colwell, 611 P.2d 427, 429 n. 1 (Wyo.1980)

      . The notes were dated March 17, 1998, through April 24, 1998, and May 13, 1998, through September 1, 1998.


source: Caselaw Access Project

author: LEHMAN, Chief Justice. HILL, J.,

license: Public Domain

text:
    2002 WY 98
    Melvin D. HUTCHINGS and Virginia L. Hutchings, Appellants (Defendants), v. Michael S. KRACHUN, Appellee (Plaintiff). Michael S. Krachun, Appellant (Plaintiff), v. Melvin D. Hutchings and Virginia L. Hutchings, Appellees (Defendants).
    Nos. 00-285, 00-286.
    Supreme Court of Wyoming.
    June 28, 2002.

      LaVoy O. Taylor, Cokeville, WY, Representing Appellants Hutchingses.
    Dennis L. Sanderson, Afton, WY, Representing Appellee Krachun.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   LEHMAN, Chief Justice.

[11] Appellants Hutchingses (hereinafter "landowners") own land over which there exists an easement providing access to property owned by appellee Krachun (hereinafter "easement owner"). After a bench trial, the district court entered a Judgment Based On Findings of Fact And Conclusions of Law ("Judgment") and companion Order ("Order") ordering, in part, that the description of the easement in this case be reformed to conform to the centerline of the existing roadway. The court further enjoined landowners from blocking or barricading the right of way of easement owner because the easement owner had erected a cattle guard that complied with Wyoming Highway Department regulations where the easement meets the county road. Finally, the district court found in its findings of fact and conclusions of law that cattle guards are unsafe and inadequate barriers within which to contain horses. Landowners and easement owner all then timely appealed the Judgment and Order.

[12] We affirm in part and reverse, in part.

ISSUES

[T3] Landowners' issues are paraphrased as follows:

1. Do landowners have the right to maintain a gate in front of the cattle guard and to keep it closed when they have their horses in pasture?
2. Did the District Court err when, it in its Judgment and Order, it stated: "The description of the easement leading to the [easement owner's] property as described in the deeds from Bernard Larsen and Marcine Larsen to Roy Seaquist and from Roy Seaquist to [easement owner] is hereby reformed to conform to the centerline of the existing roadway as shown on the Plat prepared by Lloyd B. Baker?"

Easement owner sets forth the issues as:

I. Whether a cattle guard constriicted to State Highway Department standards is an acceptable substitute for a gate.
II. Whether landowners of the servient estate may place a gate in front of the cattle guard.
III. Whether the trial court erred in reforming the easement to conform to a resurveyed description of 'the roadway.

Easement owner further specified this issue, with which landowners agree:

Is the trial court's finding that all cattle guards are unsafe and inadequate barriers with which to contain horses supported by adequate evidence?

FACTS

[T4] The easement came into existence in 1977 when a previous owner of all the property conveyed a parcel of property to a predecessor of easement owner. The deed contained the following language with reference to the easement, which followed a pre-exist-ing road used by the previous owner, to go to and from their pasture property:

Together with a perpetual right of way for ingress and egress for Grantee and his heirs, successors and assigns to and from Grantee's property to the county road, over, across and along the lands of the Grantors, to enter upon the lands of the Grantors, and said right of way is more particularly described as follows:
Beginning N 0°0' E, 462.0 feet from the W 4 Corner of Section 15, T 34 N, R 119 W and running thence N 28°30 E, 280 feet, thence N 20°25 E, 280 feet, thenee N 85°0° E, 190 feet, thence N 71°56 E, 160 feet, thence S 85°32" E, 108 feet, thence N 67°0' E, 90 feet, thence N 69°50'° E, 40 feet, thence N 78°40' E, 45 feet, thence S 75°20 E, 38 feet, thenee S 89°0' E, 100 feet to the County Road and extending % rod each side of above described centerline.
The foregoing right of way is subject to the condition that said right of way shall remain a private road and shall be shared with the Grantors, and their heirs, successors and assigns, and shall not be fenced in by Grantee or his heirs, successors and assigns, unless permission in writing is given by the Grantors, or their heirs, sue-cessors or assigns; and further provided that Grantee may clear the snow from the full 1% rod width of said right of way, throwing snow on the Grantors' lands on either side of said right of way for snow removal, and either Grantee or Grantors, or their heirs, successors, or assigns, shall have the right to construct and maintain a roadway over, across and along the above described easement right of way to the extent as may be deemed necessary by either party for proper access along said right of way for access to Grantors' or Grantee's land.

[T5] The predecessor to easement owner built a home on his parcel and improved the easement from the county road to his property. A wire gate remained where the easement met the county road. Subsequently in 1989, easement owner herein purchased the parcel. In 1990, easement owner removed the wire gate where the easement meets the county road and constructed a cattle guard.

[16] In 1992, landowners took ownership of the servient estate to the easement, which consisted of pasture land, and began to run a purebred quarter horse business. In the fall of that year, a colt owned by landowners was injured by becoming trapped in the cattle guard allegedly because easement owner had plowed the cattle guard full of snow. An agent for landowners then placed a chain across the cattle guard so horses would not get trapped in the cattle guard or jump over it onto the county road.

[17] From the fall of 1992 until early summer of 1998, whenever landowners had horses on their pasture land, they usually kept either a wooden pole across the county road cattle guard or metal panels in front of that cattle guard to protect their horses. Easement owner would usually, but not always, remove and replace these items when passing either to or from his property. During this timeframe, landowners had approximately five horses either injured or jump the cattle guard onto the county road.

[T8] As a result, landowners installed a metal gate in front of the cattle guard and kept it closed when they had horses on their pasture land. This arrangement apparently worked well until mid November of 1998 when easement owner began to leave the gate open. This led to landowners barricading the easement with a tractor. Further, since easement owner then went through a metal gate at the south side of the cattle guard to gain access to his property leaving that gate open, landowners also barricaded that entrance.

[19] This action was then commenced with easement owner filing a complaint, which was followed by landowners filing a counterclaim. Easement owner originally sought an order requiring landowners 1) to remove the gate and to not further barricade the easement, 2) pay damages for trespass, nuisance and intentional infliction of emotional distress, and 3) pay punitive damages. Later, easement owner amended his complaint requesting that the court order a reformation of the easement to the location of the existing roadway. The crossclaim of the landowners initially prayed that the district court order easement owner to 1) close any gates placed across the cattle guard, 2) install a cattle guard that was fit for horses and to keep it in adequate condition for such purposes, 3) pay damages for trespass, destruction of property, and emotional distress, and 4) pay punitive damages. The landowners then amended their crosselaim requesting that the existing roadway be moved from its present location and moved to that location described within the original deed and for resulting damages.

STANDARD OF REVIEW

[110] A trial of this case was held before the court with the court issuing specific findings of fact and conclusions of law. The purpose of specific findings of fact is to inform the appellate court of the underlying facts supporting the trial court's conclusions of law and disposition of the issues. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993). While the findings of fact made by a trial court are presumptively correct, we examine all of the properly admissible evidence in the record. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Rather, the appellant has the burden of persuading the appellate court that the finding is erroneous. Id. See also Maycock v. Maycock, 2001 WY 103, ¶ 11, 33 P.3d 1114, ¶ 11 (Wyo.2001). Findings of fact are not set aside unless inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. The definitive test of when a finding of fact is clearly erroneous is when, although thére is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. A determination that a finding is against the great weight of the evidence means that a finding will be set aside even if supported by substantial evidence. Id. See also Mathis v. Wendling, 962 P.2d 160, 163 (Wyo.1998). Conclusions of law made by the trial court are not binding on this court and are reviewed de novo. Maycock, ¶ 12.

[111] We most recently also recognized that an easement is defined as "an interest in land which entitles the easement holder to a limited use or enjoyment over another person's property." Hasvold v. Park County Sch. Dist. No. 6, 2002 WY 65, ¶ 13, 45 P.3d 635, ¶ 18 (Wyo.2002)). We derive the meaning of an easement from its language, much as we would in the case of a deed, contract or other written instrument. Id; Lamb v. Wyoming Game & Fish Comm'n, 985 P.2d 433, 437 (Wyo.1999). In construing an easement, we seek to determine the intent of the parties to the easement. If the language of the easement is unambiguous and if the intent of the parties can be gleaned from its language, that should be done as a matter of law. Hasvold, ¶ 13; Steil v. Smith, 901 P.2d 395, 396 (Wyo.1995). Where an easement is claimed under a grant, the extent of the easement depends on the terms. If the terms are specific, that is decisive of the limits of the easement. Edgcomb v. Lower Valley Power & Light, Inc., 922 P.2d 850, 854 (Wyo.1996).

DISCUSSION

The Cattle Guard

[112] Although they do not raise it as a separate issue on appeal, landowners make considerable argument in their brief that easement owner's placement of a cattle guard that meets applicable state standards upon the easement places an inappropriate increased burden upon the easement. Further, landowners argue that the holding rendered in Van Raden v. Harper, 891 P.2d 78 (Wyo.1995), is not authoritative precedent that should be applied in this case since the facts sufficiently differ from this case than those which arose in Van Raden. They contend that Van Raden dealt with a general easement and not an easement subject to conditions. Hence, landowners assert that this difference is adequate reason why the holding in Van Raden is not controlling in this case. We do not agree.

[1183] In Van Raden, this court held as a matter of law that installing cattle guards on a right of way easement is a permissible improvement of an easement and does not materially increase the burden of the ser-vient estate. 891 P.2d at 79-80. In addition, we recognized that the easement involved in Van Raden was an access easement. Similarly, we also noted that in the case of Weiss v. Pedersen, 933 P.2d 495, 500 (Wyo.1997), wherein we subsequently recognized Van Raden, that such easement also involved an alleged prescriptive right of way or access easement. -

[T14] Looking at the easement in this case, we hold the language used to be clear and unambiguous and that extrinsic evidence need not be considered in its construction. The language used plainly expresses a solitary desire to grant an easement for ingress and egress or right of way to the grantee, his heirs, successors, and assigns to their land and, as such, constitutes an access easement. Similarly, the easement reserves the right of the grantors, their heirs, successors, and assigns to use the easement to also access their land. Therefore, we see no reason why the rule of law espoused in Van Raden should not be applied in this case. We recognized in Van Raden that the installation of a cattle guard promoted the primary purpose of the easement which was to provide convenient passage. This is likewise the case here. Placing a cattle guard on the easement by easement owner in no way prohibits access and convenient passage of landowners as reserved; therefore, it cannot be said .to place an inappropriate increased burden upon the easement.

The Gate

[115] Landowners further contend that the language used within the easement allows them to construct and maintain a gate on the easement where the easement meets the county road. They argue that the language used within the easement that

[tlhe foregoing right of way is subject to the condition that said right of way shall remain a private road and shall be shared with the Grantors, and their heirs, successors and assigns and either Grantee or Grantors, or their heirs, successors, or assigns, shall have the right to construct and maintain a roadway over, across and along the above described easement right of way to the extent as may be deemed necessary by either party for proper access along said right of way for access to Grantors' or Grantee's land.

(emphasis added) confers upon landowners this right. Again, we do not agree.

~[(116] As we stated previously, the language used within the easement is clear and unambiguous and expresses a solitary desire to grant an easement for ingress and egress or right of way to the grantee, his heirs, successors and assigns to their land and reserves the right of the grantors, their heirs, successors, and assigns to use the easement to access their land. This language, however, does not give landowners the express right to place a gate on the easement where it meets the county road. Rather, easement owner and landowners only possess the right to construct and maintain a roadway over, across, and along the easement for proper access along that right of way.

[117] As aptly recognized by landowners, this court has previously stated that the owner of an easement and the owner of the land each possess rights and each must, as far as possible, respect each other's use. Lamb v. Wyoming Game & Fish Comm'n, 985 P.2d at 437; Edgecomb, 922 P.2d at 854 (quoting Steil v. Smith, 901 P.2d at 396). Moreover, this court has stated that the rights of the easement owner and the landowner are not absolute but are so limited, each by the other, that there may be a due and reasonable enjoyment of both the easement and the servient tenement. Bard Ranch Co. v. Weber, 557 P.2d 722, 730 (Wyo.1976). Landowners confuse their reserved right to access along the easement with the right to contain their horses within their land in conducting their horse business. Simply put, the easement reserved them access and a right of way to their land as expressly described and nothing more.

[T18] Likewise, the language used within the easement confers upon easement owner a right of way along the easement to access his property. This is an unfettered right which is unduly affected by the placement of a gate upon the easement where it meets the county road. As recognized in WYMO Fuels, Inc. v. Edwards, 723 P.2d 1230, 1236 (Wyo.1986):

We have said that the owner of the surface estate and the owner of an easement each possess rights. We have, however, accepted the proposition that the rights of the owner of the easement are paramount to the extent of the easement and include all rights incident or necessary to its proper enjoyment. The owner of the servient estate retains only such incidents of ownership as are not inconsistent with the casement.

(Citations omitted.) In Weiss v. Pedersen, 933 P.2d at 500, we specifically held that the owner of the servient estate cannot impede the easement holder's use of the easement by the placement of a gate in leu of a cattle guard. Furthermore, Van Raden, 891 P.2d at 79, stands for the proposition that an easement holder's installation of a cattle guard is not an unauthorized increase in the burden on the servient estate. Consequent ly, our precedent supports the conclusion that, in most cases, the easement owner has the ultimate right to decide whether gates or cattle guards will be employed on access easements. Allowing the placement of a gate on the easement where it meets the county road by landowners prohibits the access and convenient passage of easement owner along the easement as expressly granted.

Reformation

[Y19] Landowners further assert that the trial court erred when it reformed the easement to the present place where the roadway exists as opposed to the legal description elaborated within the grant deed. They argue that there was no testimony elicited at trial that there was an error made in the description within the deed or that the road which was in use was several feet off of the granted right of way. As a result, landowners argue that it was impossible for a prescriptive easement to have been shown since there was no proof of continuous and uninterrupted adverse use of a type sufficient to put the owner on notice of a claim of right under color of title.

[¶ 20] Review of the Judgment, however, makes it clear that the trial court reformed the easement based on the theory of mutual mistake. This court has previously set forth the elements of mutual mistake:

The essential elements of mutual mistake in a written instrument for which a court of competent jurisdiction may grant appropriate relief are that there was an antecedent agreement which the written instrument undertakes to evidence; that a mistake occurred in the drafting of the instrument and not in the antecedent agreement which it undertakes to evidence; and that in the absence of fraud or inequitable conduct on the part of one of the parties, the mistake was mutual.

Hansen v. Little Bear Inn Co., 9 P.3d 960, 964 (Wyo.2000) (quoting Mathis, 962 P.2d at 164). Further, we have recognized that while the general rule is that parol evidence is inadmissible when a contract is unambiguous, we make an exception in the case of mutual mistake. Moreover, if a court finds that a mutual mistake exists, it may then cancel or reform the contract. Hansen, at 964.

[¶ 21] In this instance, sufficient evidence exists that the intent of the original parties to the deed was to follow the roadway and that the original surveyor made a mistake when supplying the legal description ultimately used within the deed. A neighbor who had lived near the subject real property for over sixty years, and who was familiar with the road, testified at trial that the easement road followed a pre-existing two track road that had been in existence as long as he could remember. Another witness testified at trial that the original survey which resulted in the legal description of the easement and dominant estate used in the deed was performed by a local engineer who is now deceased. He testified that the error resulted from using the wrong point of beginning and loose survey practices. Easement owner testified that when he purchased the dominant estate in 1989, the road was already in place. Easement owner did not know, until after this action was well under way, that the roadway did not run along the "legal description for the easement as specified within the deed.

[¶ 22] Sufficient testimony was elicited at trial to establish in the record before us that a prior agreement existed between the prior owners to describe the easement within the deed where the roadway actually existed, that a mistake occurred in this endeavor, and that such mistake was mutual without fraud or inequitable conduct. As a result, the trial court found based on sufficient evidence that a mutual mistake had occurred since the makers of the deed intended that the easement run where the roadway actually existed and thereby correctly reformed the deed as originally intended. As we stated earlier, this court will not set aside findings of fact unless inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. Maycock, at ¶ 11; Mathis, 962 P.2d at 163; and Hopper, 861 P.2d at 538.

[¶ 23] Finally, landowners cannot now argue that the trial court’s reformation of the easement to where the road exists to be inequitable since one of the landowners testified at trial that he did not desire to have the road moved and that it would be better for the parties to reform the easement to the location where the road existed.

Findings of Fact and Conclusions of Law

[¶ 24] Finally, easement owner argues that the trial court erred when it found in its findings of fact and ruled within its conclusions of law contained in the Judgment that cattle guards are unsafe and inadequate barriers within which to contain horses. Easement owner argues that no evidence existed upon trial of this action that a cattle guard built to Wyoming Highway Department specifications is unsafe or inadequate within which to contain horses and, therefore, the trial court’s similar conclusion of law is also not appropriate. We agree.

[¶25] Review of the record on appeal evidences much testimony concerning the inadequacy of the cattle guard located on the easement where it meets the county road to contain horses. However, in fact, the only time that the issue as to whether or not a cattle guard built to state specifications was adequate to contain horses came during the trial when Mark Larsen testified. When Larsen was asked whether he would prefer a cattle guard that was narrow so that a horse could jump over it or a wide cattle guard where a horse who attempted to jump over it would land on the cattle guard, Larsen ultimately testified that he would prefer a cattle guard that horses could clear. He then went on to state without solicitation that he had seen horses jump over cattle guards built in compliance with state standards.

[126] This statement lacked any foundation and is speculative at best. Further, Larsen indicated that the particular cattle guard to which he was referring was not adequately maintained which could have added to the problem. Finally, Larsen stated that horses are also known to jump fences and gates if they desired to do so. Thus, we find that such testimony does not amount to credible evidence that a cattle guard built within state standards is unsafe and inadequate to contain horses.

[127] As stated above, the definitive test of when a finding of fact is clearly erroneous is when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. A determination that a finding is against the great weight of the evidence means that a finding will be set aside even if supported by substantial evidence. Maycock, at ¶ 11; Mathis, 962 P.2d at 163; Hopper, 861 P.2d at 538. Here, absolutely no credible evidence existed within the record that a cattle guard built within state standards is unsafe and inadequate to contain horses. Accordingly, the finding of fact and underlying conclusion of law made to this effect by the trial court are erroneous and are stricken.

CONCLUSION

[128] The conclusion of the district court that a cattle guard which complies with applicable state standards is a permissible improvement on an easement and does not materially increase the burden of the ser-vient estate is affirmed. The order preventing landowners from blocking the easement with a gate is also affirmed, as is the reformation of the description of the easement. The finding of fact and underlying conclusion that cattle guards are unsafe and inadequate to maintain horses are erroneous and are to be stricken from the findings of fact and conclusions of law.

[129] Affirmed in part and reversed in part.

HILL, J.,

dissenting,

with whom KITE, J. joins.

[130] I do not agree with the majority that the easement in question prohibited a gate, or that the gate in issue "prohibits the access and convenient passage of easement owner along the easement as expressly granted," or that the gate was not reasonable and necessary given the undisputed facts of this case. For these reasons, I respectfully dissgnt.

[131] It is undisputed that some of the landowner's horses were able to jump or otherwise traverse the cattle guard at issue, that if the horses got through the cattle guard, they would be in a county highway, and that some horses were injured in the process. The majority appropriately notes that the casement provides that the casement holder may maintain a roadway to the extent deemed necessary for proper access. However, the easement certainly does not imply that that roadway was meant to be absolutely unobstructed by a gate. The two parties are required to share the roadway, or at least that portion of it which traverses the landowner's property, and that can be readily accomplished even with a gate in place. After all, the properties are in rural Wyoming.

[132] The established law almost uniformly provides that a servient estate owner (the landowner in our discussions above) has all rights and benefits of ownership consistent with the easement. The grant of a right-of-way without reservation of the right to maintain gates does not necessarily preclude the servient estate owner from having gates. Indeed, unless the easement contains language expressly prohibiting a gate, or the circumstances surrounding the grant of the easement make it clear that an open, unobstructed and unfettered right of access was intended, then the servient estate may maintain a gate so long as the gate is necessary and does not unreasonably interfere with the dominant estate's (in our discussion above, the easement holder's) right of access.

[183] Furthermore, I do not perceive the cases of Weiss v. Pedersen, 933 P.2d 495 (Wyo.1997) and Van Raden v. Harper, 891 P.2d 78 (Wyo.1995), as requiring the result reached by the majority. I believe that the majority opinion reads too much into those decisions, and it is my view that they are readily distinguishable on their facts. To the extent they are viewed so as to justify the decision reached by the majority, I would modify our prior decisions to conform them to the vast majority of the cases which hold to the contrary, especially in a rural, agricultural setting. See Daniel E. Feld, Annotation, Right to Maintain Gate or Fence Across Right of Way, 52 A.L.R.3d 9 (1973 and Supp.2001).

[134] In a rural, agricultural area in Wyoming, I do not see the gate at issue here as unreasonable. Indeed, it appears to be clearly necessary. Although the district court's finding with respect to cattle guards may have been beyond the facts of this case, it seems clear from the uncontroverted facts that the cattle guard at issue was not effective in protecting the landowner's horses from injury, nor the traveling public from the dangers posed by landowner's escaped horses. Again, given the rural, agricultural nature of the lands in issue and the facts of this case, I do not see a gate as an obstruction or inconvenience, and it certainly does not prohibit access.

[¥85] A part of the district court's judgment is this:

2. The Plaintiffs [easement holder's] request for immediate relief enjoining the Defendants [landowners] from keeping a gate across the existing cattle guard located next to the Lincoln County road is denied. Provided, however, that if and when the Plaintiff erects a cattle guard that conforms to Wyoming State Highway Department standards, the Defendants are, at that point, enjoined from placing a gate across or in front of the cattle guard.

[186] I would modify that portion of the judgment to provide that the landowner may maintain a gate so long as the facts show it is necessary, and not an unreasonable interference with the easement, and remand this matter to the district court for any further proceedings which may be sought by the parties.


author: HILL, Chief Justice.

text:
    2002 WY 99
    The STATE of Wyoming, Petitioner, v. Andrew I. NELSON, Respondent.
    No. 01-86.
    Supreme Court of Wyoming.
    July 1, 2002.

      Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Devon Coleman, Prosecution Assistance Program; and Ryan Schwartz, Student Intern, Representing Petitioner. Argument by Mr. Schwartz.
    Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel, Representing Respondent. Argument by Mr. Roden.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   HILL, Chief Justice.

[T1] Andrew I. Nelson (Nelson) was convicted of one count of failure to maintain vehicle liability insurance coverage or a bond in violation of Wyo. Stat. Ann. § 31-4-103 in the justice court of Crook County, Wyoming. Nelson appealed to the district court, which reversed the judgment and vacated the sentence and probation on the grounds that the statute requires owners of motor vehicles to maintain liability insurance or a bond but does not require the same of those who only operate a motor vehicle. The State of Wyoming filed a Petition for Writ of Review with this Court, which was granted. We reverse the district court and reinstate the judgment and sentence of the justice court.

ISSUE

[12] The Petition for Writ of Review framed the question posed to this Court as:

Can a non-owner driver operate a motor vehicle without having a liability insurance policy or bond in specified amounts be convicted of a crime pursuant to Wyoming Statute 81-4-103 when they do so?

FACTS

[T3] Nelson was driving an uninsured motor vehicle when he was involved in an accident with a pedestrian. Nelson was charged with one count of reckless driving in violation of Wyo. Stat. Ann. § 81-5-229 and one count of failure to maintain liability coverage in violation of Wyo. Stat. Ann. § 31-4-108. A two-day jury trial was held in the justice court of Crook County. Nelson was acquitted on the reckless driving charge but found guilty of failing to maintain liability coverage. Nelson was sentenced to 180 days in jail, a fine of $870.00, $80.00 in costs, and restitution of $30,476.69. The justice court suspended 150 days of the jail sentence and placed Nelson on five months probation.

[14] Nelson appealed his conviction to the district court. Nelson argued that a person who operates, but does not own, the motor vehicle could not be convicted of a failure to maintain liability coverage under Wyo. Stat. Ann. § 81-4-108. The district court agreed with Nelson's interpretation of the statute, reversed the judgment, and vacated the sentence imposed by the justice court. The State filed a Petition for Writ of Review, which was granted.

DISCUSSION

[15] The sole issue on appeal concerns the interpretation of the language in Wyo. Stat. Ann. § 831-4-108 (LexisNexis 2001) (emphasis added), which provides in its entirety:

(a) No owner of a motor vehicle required to be registered shall operate or permit the operation of his motor vehicle without having in full force and effect a motor vehicle liability policy in amounts provided by W.S. 31-9-405(b) or a bond in amounts provided by W.S. 31-9-102(a)(xi). Violation of this subsection is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not less than two hundred fifty dollars ($250.00) nor more than seven hundred fifty dollars ($750.00), or both. On a second or subsequent violation of this subsection, the person may be fined not less than five hundred dollars ($500.00) nor more than one thousand five hundred dollars ($1,500.00), imprisoned for not more than six (6) months, or both. In addition to the fine or imprisonment imposed for a second or subsequent violation of this subsection, the judge shall require the defendant to deliver the registration and lieense plates of the vehicle involved to the county treasurer for the county where the citation was issued, and the registration and license plates shall be held by the county treasurer until such time as the judge determines that the defendant has met all obligations imposed by law. Excusable neglect or mistake by another is a defense for any violation of this subsection. If evidence of excusable neglect or mistake by another is presented and the defendant is convicted, the court may consider this evidence in imposing a penalty under this subsection. The judge may suspend part or all of the sentence under this subsection and place the defendant on probation subject to conditions imposed by the judge which shall include a condition that the defendant shall deliver the registration and license plates of the vehicle involved to the county treasurer for the county where the citation was issued. This subsection does not apply to a vehicle owned by a nonresident and registered in a state requiring insurance if a vehicle insurance policy meeting requirements of the laws and regulations of that state is in effect or unless it otherwise complies with the laws of that state concerning compulsory financial responsibility. The department shall report any violation of this subsection to the motor vehicle administrator in the state wherein the vehicle is registered. A vehicle owned by a nonresident and registered in a state not requiring insurance is exempt from this subsection.
(b) Any police officer as defined by W.S. 31-5-102(a)(xxxii), issuing a citation for any moving violation under W.S. 81-5-101 through 31-5-1402 or inspecting any vehicle, shall require the operator of any motor vehicle required to be registered to produce evidence of whether the operator or owner of the motor vehicle has in full force and ef-feet a motor vehicle lability policy in amounts provided by W.S. 81-9-405(b) or a bond in amounts provided by W.S. 31-9-102(a)(xi). If the operator cannot show written proof of financial responsibility, the driver shall have seven (7) days to produce such proof. Any operator or owner of a motor vehicle required to be registered who is not able to demonstrate evidence of compliance with subsection (a) of this section may be charged with violating that subsection. Additionally, the judge may order any driver failing to produce written proof of financial responsibility to pay restitution in accordance with W.S. 7-9-101 through 7-9-115. Effective January 1, 19983, the displaying or exhibiting .of a validly issued insurance identification card as provided by W.S. 31-8-201 by an operator or owner of the motor vehicle constitutes compliance with. this seetion. No operator or owner of a motor vehicle charged with violating this seetion shall be convicted if he produces in court one (1) of the following which was valid at the time of arrest or at the time the citation was issued:
(1) A lability insurance policy previously issued to him;
(ii) Evidence of a bond on file with the department in amounts provided by W.S. 31-9-102(a)(xi).
(c) Upon receipt of a notice of a conviction under subsection (a) of this section, the department shall require the person convicted to file and maintain. for a three (8) year period, proof of financial responsibility as required by W.S. 81-9-401 through 81-9-414. Failure to provide proof of financial responsibility within thirty (80) days after notification shall result in the suspension of the person's driver's license and nonresident operating privileges. The suspension shall remain in effect until the required proof of financial responsibility is received by the department.
(d) This section does not apply to:
(1) Self-insurers pursuant to W.S. 31-9-414;
(Mi) A vehicle owned by the United States government, any state or political subdivision thereof which is self-insured;
(ifi) A vehicle meeting the requirements of W.S. 31-9-408 and 31-9-409;
(iv) A commercial vehicle registered or proportionally registered in this and any other jurisdiction provided the vehicle is covered by a vehicle insurance policy complying with the laws of any other jurisdiction in which it is registered.

(Emphasis added.)

[T6] In construing statutory language, we apply certain general principles:

Applicable general principles of statutory construction include: if the language is clear and unambiguous, we must abide by the plain meaning of the statute; if a statute is ambiguous, we may resort to general principles of construction; an ambiguous statute is one whose meaning is uncertain and susceptible of more than one meaning; and in a criminal statute, an ambiguity should be resolved in favor of lenity.

Mazurek v. State, 10 P.3d 531, 540-41 (Wyo.2000) (quoting Pierson v. State, 956 P.2d 1119, 1125 (Wyo.1998)). We analyze statutes with the objective of ascertaining the legislature's intent, commencing with an inquiry into the ordinary and obvious meaning of the words employed according to their arrangement and connection. Misenheimer v. State, 2001 WY 65, ¶ 7, 27 P.3d 273, ¶ 7 (Wyo.2001). "We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia so that no part will be inoperative or superfluous." Id. (quoting Capshaw v. State, 10 P.3d 560, 564 (Wyo.2000) (citing Fall v. State, 963 P.2d 981, 983 (Wyo.1998)). We will not construe a statute in a way that leaves any portion meaningless or produces an absurd result. Mazurek, 10 P.3d at 541; Pierson, 956 P.2d at 1125.

[T7] Nelson contends that Wyo. Stat. Ann. § 31-4-108 requires only owners to maintain liability coverage and does not place a similar duty on mere operators. He points to the language of subsection (a) of § 31-4-103, which refers only to owners when imposing the liability or bond requirement on motor vehicles operated within the state. Nelson claims that subsection (b) exists only because of subsection (a) and cannot extend the scope of subsection (a). Since subsection (a) does not refer to the operator of a motor vehicle, Nelson concludes that the language of subsection (b) cannot, therefore, be used to bootstrap a charge of violating subsection (a). He also argues that if we were to find the statutory language ambiguous, then the rule of lenity requires an interpretation of § 31-4-103 consistent with his position.

[T8] The language of § 81-4-108 is clear and unambiguous. ' As noted, subsection (b) states: "... Any operator or owner of a motor vehicle required to be registered who is not able to demonstrate evidence of compliance with subsection (a) of this section may be charged with violating that subsection." This phrase quite clearly states that the operator of a motor vehicle may be charged under subsection (a) The legislature's failure to include the word "operator" within the text of subsection (a) does not affect the clear import of that statement. Nelson's interpretation of the statute violates one of the cardinal principals of statutory interpretation: Statutes will not be read so as to render any part inoperative or superfluous. Capshaw, 10 P.3d at 564. If we accept Nelson's or the district court's reading of § 31-4-103, then the cited clause from subsection (b) would have no meaning whatsoever. The only interpretation that would give effect to the language of both subsections (a) and (b) is to accept the plain meaning of the words in the phrase "any operator ... not able to demonstrate evidence of compliance with subsection (a) of this section may be charged with violating that subsection," and recognize that operators, in addition to owners, of a motor vehicle may be charged for failure to maintain the appropriate liability insurance or to post the requisite bond.

[19] This conclusion does not violate our tenet that penal statutes are to be strict, ly construed and that any ambiguities are resolved in favor of leniency. Long ago we noted:

"All statutes, whether remedial or penal, should be construed according to the apparent intention of the legislature, to be gathered from the language used, connected with the subject of legislation, and so that the entire language shall have effect, if it can, without defeating the obvious design and purpose of the law. And in doing this, the application of common sense to the language is not to be exelud-ed.... This rule is not inconsistent with the principle, that penal statutes are to be construed strictly. By this is meant only, that they are not to be so extended, by implication, beyond the legitimate import of the words used in them, as to embrace cases or acts not clearly described by such words, and so as to bring them within the prohibition or penalty of such statutes.

State v. Scott, 35 Wyo. 108, 143-44, 247 P. 699, 710 (Wyo.1926) (quoting Rawsom v. State, 19 Conn. 291 at 292 (Conn.1848)). Interpreting the plain language of subsection (b) to include operators of motor vehicles within the prohibitions of subsection (a) does not extend the seope or reach of the statute beyond the import of the words used therein, nor does it result in the statute embracing causes or acts not clearly described by the statute. The statute seeks to prohibit the operation of motor vehicles on the roadways of Wyoming in the absence of the proper means to cover the potential financial costs to third parties of doing so. The interpretation espoused by Nelson and apparently accepted by the district court would have rendered a portion of the statute inoperative, and excluded from the ambit of the statute's prohibitions actors (operators of motor vehicles), which the legislature clearly intended to cover.

CONCLUSION

[T10] Pursuant to the plain language of Wyo. Stat. Ann. § 81-4-108, operators and owners of motor vehicles can be charged with violating the requirements set forth in subsection (a). Accordingly, we reverse the district court's decision and reinstate the judgment and sentence imposed by the justice court of Crook County.

      . In light of the statute's construction around the terms "owner" and "operator," the only ambiguity that may exist in the statute arises out of the legislature's use of the terms "operator" and "driver" in subsection (b). However, any ambiguity that may be created by the use of these terms does not affect our decision and may, in any event, be more indicative of poor draftsmanship than of any substantive meaning.