author: KITE, Justice.

text:
    2002 WY 132
    Mary NEWMAN, N.D. Morgan, Jr., Marshall Morgan, Karla Denzin, Lynda Morgan, Mitzi Harris Mike Walters, Jane Cowan, Alice Morgan, Richard Morgan, Jim and Jolene Freeburn, Toni Nelson, Chuck Morgan, Kristi Fluharty, Joanne McGuire, Lisa Sigler and Rock Morgan (the "Morgan Mineral Heirs"), Appellants (Plaintiffs), v. RAG WYOMING LAND COMPANY, a Delaware corporation, and Hi-pro Production, LLC, a Wyoming Limited Liability Company, Appellees (Defendants).
    No. 01-209.
    Supreme Court of Wyoming.
    Sept. 6, 2002.
    Rehearing Denied Oct. 1, 2002.

      Representing Appellants: Clay B. Jenkins of Jenkins Law Office, Sheridan, Wyoming.
    Representing Appellee RAG Wyoming Land Company: Joseph E. Hallock and James L. Edwards of Stevens, Edwards & Hallock, P.C., Gillette, Wyoming.
    Representing Appellee Hi-Pro Production, LLC: Dan B. Riggs, David C. Smith, and Michael C. Steel of Lonabaugh and Riggs, Sheridan, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   KITE, Justice.

[T 1] In 1968, the landowners, who owned both the surface and mineral estate in certain Campbell County property, leased their ranch for oil and gas development. Production occurred, and the lease remained held by that production. The landowners deeded the surface of the ranch and "coal and minerals commingled with [the] coal" to a neighboring coal mine operator in 1974, reserving all "oil, gas, and other minerals" not otherwise conveyed. Twenty years later, development of the gas found within the coal, known as "coalbed methane," became commercially feasible. A coalbed methane operator obtained an assignment of the oil and gas leasehold rights from the surface to a depth of 1,000 feet and began development of the coalbed methane. The successors in interest to the landowners claimed their right to royalties on the coalbed methane; however, the coalbed methane operator paid all royalties to the coal operator. The landowners filed a complaint seeking a declaratory judgment as to the ownership of the coalbed methane and recovery of the unpaid royalties. The district court granted summary judgment in favor of the coal operator. We reverse.

ISSUES

[¶2] The Morgan Mineral Heirs present the following issue for our review:

Do deeds which grant:
All coal and minerals co-mingled with coal that may be mined or extracted in association therewith or in conjunction with coal mining operations
But reserve:
All oil, gas and other minerals except as set forth above
Convey coal bed methane gas, or not?

RAG Wyoming Land Company (RAG) restates the issue as: "Was the district court correct in granting summary judgment to Appellees by ruling that coalbed methane gas was conveyed by Appellants through the warranty deeds?" Hi-Pro Production, LLC (Hi-Pro) phrases the issue as:

Do warranty deeds which grant "all coal and minerals commingled with coal that may be mined or extracted in association therewith or in conjunction with such coal operations" and which reserve "all oil, gas and other minerals except as set forth above" convey coalbed methane gas ("CBM") as produced from the Wyodak coal seam?

FACTS

[¶3] In 1968, Alfreda M. Morgan and Norvin D. Morgan, Sr. (landowners), the owners of the surface and mineral estate in certain lands in Campbell County and descendants and heirs of the original homesteaders, gave an oil and gas lease to W.R. Gibson, doing business as Powder River Oil Company, granting him the right to produce "oil, gas, and casinghead gas, and other minerals" and retaining a one-eighth royalty interest in the oil and "the proceeds from the sale of the gas, as such, for gas from wells where gas is found." Production occurred on those lands, and royalties were paid to the landowners. In 1971, Meadowlark Farms, Inc. (Meadowlark), predecessor in interest to RAG (coal operator), began surface coal mining operations on state and federal coal leases in the area. In 1974, Meadowlark entered into an Option to Acquire Real Property with the landowners which granted an option for it to acquire the landowners' ranch which consisted of approximately 1,560 acres together with "all coal and minerals co-mingled with coal owned by SELLERS." The landowners owned the coal under approximately

200 acres of the property. The option also provided that, upon execution, the landowners were entitled to lease the surface for farming and ranching purposes upon payment of a sum equal to the assessed property taxes. Meadowlark exercised the option and purchased the property. The warranty deed conveyed the lands and "all coal and minerals commingled with coal that may be mined or extracted in association therewith or in conjunction with such coal operations" and reserved to the grantor "all oil, gas and other minerals except as set forth above."

[¶4] Oil and gas production, coal mining, and ranching proceeded simultaneously without dispute, and the landowners received the royalties from all oil and gas production. At some point in time, the oil and gas lease was assigned to Torch Energy Advisors (Torch). In the early 1990s, techniques for the production of gas found within the coal seam, or coalbed metHane, were developed and became commercially feasible. Although unclear from the record, it appears that, by 1997, production of coalbed methane had begun with six wells located on federal coal lands and two wells located on the lands subject to the landowners' oil and gas lease. Upon learning of the coalbed methane wells in 1997, Marshall Morgan, one of the heirs of the landowners, wrote a letter to Torch informing it of his interest in the oil and gas and demanding his share of the royalty payments. On the basis of Mr. Morgan's claim, Torch began escrowing the royalty payments which apparently it had been previously sending to the coal operator. As of September 1998, a total of $106,682.09 had been escrowed. Ultimately, RAG, the coal operator, and Torch entered into an indemnity agreement wherein RAG agreed to indemnify Torch from all liability in exchange for its agreement to resume making royalty payments to RAG. Torch assigned a portion of its interest in the oil and gas lease from the surface to 1,000 feet beneath the surface to Hi-Pro effective May 1, 2000.

[¶5] RAG entered into two surface use licenses and agreements for coalbed methane development with Hi-Pro which provided for coordination in the development of the coal and coalbed methane resources. In the agreement applicable to the lands subject to the landowners' oil and gas lease, RAG claimed "legal rights in certain coalbed methane gas wells, locations, [and] leases." In exchange for RAG's allowing Hi-Pro access to the area, Hi-Pro agreed to pay RAG forty percent of the market value of the gas produced and agreed its rights were "subordinate to and subject to the continuous and uninterrupted right of RAG ... to mine coal and conduct surface coal mining operations." In the agreement applicable to other lands-presumably the federal coal lands, Hi-Pro agreed to a similar subordination of its interests and a much lower price of one and three-quarters percent on gas from the Wyo-dak coal seam and two percent on coalbed methane produced from any other coal seam. The agreements also provided for lengthy, detailed procedures and obligations to ensure the coalbed methane development did not interfere with RAG's coal mining operation.

DISCUSSION

[¶6] The existence of coalbed methane has been well known for over a century. Paul N. Bowles, Coalbed Gas: Present Status of Ownership Issue and Other Legal Considerations, 1 Eastern Min. L. Inst. § 7.03 (1980). In fact, flash fires occasionally occurred on drilling rigs for many years when wells were drilled through the coal seam, and ventilation of underground mines was necessary to prevent fires and explosions. Michelle D. Baldwin, Book Note, Ownership of Coalbed Methane Gas: Recent Developments in Case Law, 100 W. Va. L.Rev. 673 (1998). Historically, coalbed methane "had long been considered a dangerous waste product of coal mining." Amoco Production Co. v. Southern Ute Indian Tribe, 526 U.S. 865, 871, 119 S.Ct. 1719, 144 L.Ed.2d 22 (1999).

[¶7] In the 19708, the value of coalbed methane was recognized, and government grants became available to encourage its development. Id. In 1981, the Solicitor of the Department of the Interior issued an opinion addressing the ownership of coalbed methane in federal coal deposits concluding the reservation of coal to the United States in patents issued after 1909 did not include coalbed methane. In reliance on that opinion, oil and gas operators began entering into leases to develop coalbed methane with individual landowners who owned the oil and gas. Id. In the early 1990s, techniques for efficient development of coalbed methane, specifically within the coal deposits in the Powder River Basin in Wyoming, were perfected. In 1991, litigation ensued between the federal government and certain Indian tribes which claimed the government's reservation of coal in 1909 and 1910 included the coalbed methane on lands originally owned by the government which now belonged to them. Ultimately, that issue was resolved when the United States Supreme Court held coalbed methane was not included within the reservation of coal and overruled district and eireuit court decisions which had concluded coalbed methane was owned by the owner of the coal. Id. at 874.

[¶8] Commercial development of coalbed methane in the Powder River Basin began in the early 1990s. Prior to that time, coalbed methane escaped from the coal in the course of the open pit surface mining process, and ro attempt was made to capture that gas as a valuable resource.

[¶9] A brief discussion of the chemistry and the composition of methane and coal is in order. Coalbed methane is chemically identical (CH,) to gas produced through conventional methods, and each is known as "natural gas." Methane or natural gas originates from the decay of organic material over time under great pressure and temperature. Whether that process occurs in coal deposits or at greater depths, the result is the same-natural gas is produced. The process which transforms organic material into coal is known as coalification.

The coalification process generates methane and other gases. Because coal is porous, some of that gas is retained in the coal. CBM gas exists in the coal in three basic states: as free gas; as gas dissolved in the water in coal; and as gas "adsorbed" on the solid surface of the coal, that is, held to the surface by weak forces called van der Waals forces. These are the same three states or conditions in which gas is stored in other rock formations. Because of the large surface area of coal pores, however, a much higher proportion of the gas is adsor[bled on the surface of coal than is adsor[bled in other rock. When pressure on the coalbed is decreased, the gas in the coal formation escapes.

Id. at 873 (citations omitted).

[¶10] Natural gas or methane, whether located in a sandstone reservoir or a coal seam, is produced by creating a pressure differential between the well bore and the reservoir. In the Powder River Basin, coalbed methane production involves the removal of water from the coal formation, which reduces the pressure and allows the gas to escape. Likewise, methane will migrate naturally from coal seams, as well as from other reservoirs, to other porous or permeable strata depending on pressure differentials.

[¥11] The issue to be resolved in this case is whether the parties to the deed in question intended the coalbed methane to be conveyed along with the coal estate or reserved to the grantor as part of the oil and gas estate. The parties agree the governing principle of contract construction is determination of the parties' intent from the language of the instrument itself. As we stated most recently in the context of interpreting a mineral conveyance:

"According to our established standards for interpretation of contracts, the words used in the contract are afforded the plain meaning that a reasonable person would give to them. When the provisions in the contract are clear and unambiguous, the court looks only to the 'four corners' of the document in arriving at the intent of the parties. In the absence of any ambiguity, the contract will be enforced according to its terms because no construction is appropriate." Amoco Production Company v. EM Nominee Partnership Company, 2 P.3d 534, 539-40 (Wyo0.2000) (citations omitted).
Assignments are contracts and are construed according to the rules of contract interpretation. The determination of the parties' intent is our prime focus in interpreting or construing a contract. If an agreement is in writing and its language is clear and unambiguous, the parties' intention is to be secured from the words of the agreement. When the agreement's language is clear and unambiguous, we consider the writing as a whole, taking into account relationships between various parts. In interpreting unambiguous contracts involving mineral interests, we have consistently looked to surrounding cireum-stances, facts showing the relations of the parties, the subject matter of the contract, and the apparent purpose of making the contract.

Boley v. Greenough, 2001 WY 47, ¶¶ 10-11, 22 P.3d 854, ¶¶ 10-11 (2001) (some citations omitted). Although substantial disagreement exists over the meaning of the deed, neither party suggests the language of the deed is ambiguous. Differing interpretations of contracts alone do not constitute ambiguity requiring extrinsic evidence. Moncrief v. Louisiana Land and Exploration Company, 861 P.2d 516, 524 (Wyo.1993).

[112] We must first examine the terms of the deed and give them their plain and ordinary meaning. Wolter v. Equitable Resources Energy Company, Western Region, 979 P.2d 948, 951 (Wyo.1999); Pete Lien & Sons, Inc. v. Ellsworth Peck Construction Co., 896 P.2d 761, 763 (Wyo.1995). Plain meaning is that "meaning which [the] language would convey to reasonable persons at the time and place of its use." Moncrief, 861 P.2d at 524.

[113] The language of the deed conveys "all coal and minerals commingled with coal that may be mined or extracted in association therewith or in conjunction with such coal operations" and reserves "all oil, gas and other minerals except as set forth above." The first term the parties argue must be interpreted is "minerals." We have little trouble concluding natural gas produced from the coal seam is a mineral under Wyoming law. Amoco Production Company v. Guild Trust, 461 F.Supp. 279, 283 (D.Wyo.1978), aff'd, 636 F.2d 261 (10th Cir.1980); Union Pacific Land Resources Corporation v. Moench Investment Company, 696 F.2d 88, 93 (10th Cir.1982); State ex rel. School Dist. No. 1 in Weston County v. Snyder, 29 Wyo. 163, 212 P. 758 (1923). However, this conclusion does little to resolve this dispute because "minerals" are both granted and reserved.

[¶14] The determinative question is whether the parties intended "minerals commingled with coal that may be mined or extracted in association therewith or in conjunction with such coal operations" to include natural gas found in the coal seam. We are unable to discern any unique meaning of "commingled" in the context of minerals. The word "commingle" is defined by Webster's New World Dictionary as "to mingle together; intermix; blend." Webster's New World Dictionary 285 (2nd C. ed.1972). The term does not suggest any sort of chemical change must occur to constitute commingling but only a mixing together. Given the three states of coalbed methane as free gas within the cleats and matrixes of the coal, gas dissolved in water in the coal pores, and gas adsorbed onto the solid surface of the coal, it appears to be "mixed together" with the coal within the meaning of the terms of the deed.

[T15] In addition to being commingled with the coal, the other "minerals" conveyed must be those that "may be mined or extracted in association" with the coal or "in conjunction with such coal operations." Likewise, these terms must be given their plain and ordinary meaning to reasonable persons at the same time and place of their use; i.e., 1974 in the Powder River Basin of Wyoming. The coal operator argues that production of gas has been considered "mining" relying on Coronado Oil Company v. Grieves, 603 P2d 406 (Wyo.1979), Amoco Production Company v. Guild Trust, 636 F.2d 261, 263-65 (10th Cir.1980), and the language of oil and gas leases, including those issued by the landowners in this case. While those references certainly establish that oil and gas production through the drilling of wells has been considered "mining," they do not answer the question posed in this case because all agree that, in 1974 when the warranty deed in question was drawn, any gas found in the coal seam was not mined through a well bore but was ventilated or wasted while the coal was produced by excavation in the course of surface mining. In addition, the minerals conveyed by the language of the deed were only those mined "in association therewith or in conjunction with such coal operations." Webster's New World Dictionary confirms the ordinary meaning of "in association" and "in conjunction" to be "together." No party contends coalbed methane is somehow captured together with the coal as it is mined. Rather, it is released and escapes during the mining process. Southern Ute Indian Tribe, 526 U.S. at 873, 119 S.Ct. 1719. In the case of underground mines, it must be ventilated. United States Steel Corporation v. Hoge, 503 Pa. 140, 468 A.2d 1380, 1382 (1983).

[¥ 16] Is the plain meaning of "extracted" the same as "released," "escaped," or "ventilated"? It is obvious these words connote different actions, and the distinctions between them are crucial to determining the intent of the parties to this deed. Webster's New World Dictionary confirms that difference by defining (1) "extract" as "to draw out by effort; pull out" and "to remove or separate (metal) from ore"; (2) "release" as "to set free"; and (8) "ventilate" as "to provide with an opening for the escape of air, gas, etc." Under the plain meaning of the terms chosen by the parties to the deed, we cannot conclude they intended to include coalbed methane gas as a mineral "mined or extracted in association therewith or in conjunction with such coal operations" when it can only be produced through wells as any other gas.

[T17] We could end the inquiry at this point. However, because of the importance of the issue of the ownership of coalbed methane in general and the extensive consideration of this issue by other courts and commentators which we find helpful and consistent with our initial conclusion, further discussion is warranted.

[T18] The coal operator poses a creative argument suggesting that, because coalbed methane can most efficiently be produced in advance of the mining operations thereby reducing the water the mine must contend with and making the mine more economically successful, it is mined or extracted "in association therewith" or "in conjunction with" coal mining operations. Two problems exist with that argument. First, the gas production does not occur automatically in the process of overburden and coal exeavation and removal. Instead, it only occurs when and if the coal operator decides to undertake gas well drilling in advance of the mine face. Second, such "mining" techniques-the coordination of well drilling and mine exeavation-did not exist until twenty years after the deed in question was drawn which poses the broader question in this case. How is the parties' intent to be determined when minerals become valuable long after a conveyance by (1) discovery of new methods of production; (2) changes in economics making production of a previously known, but unwanted, mineral profitable; (8) or discovery of the presence of minerals not previously known to exist? Obviously, the language of the particular documents involved affects the answer to this question on a case-by-case basis.

[¶19] In this particular case, no reference is made in the deed to coalbed methane, and no other language can be said to address the parties' specific intent with regard to it. In civreumstances like those present here, a search for the parties' specific intent produces little fruit because the identity, value, or feasibility of production was unknown to the parties at the time of the conveyance and, therefore, they likely had no intent at all with regard to the substance in question. Consequently, we must focus upon the general intent of the parties, concentrating on the "purposes of the grant in terms of respective manner of enjoyment of surface and mineral estates." Comment, New Values Under Old Oil and Gas Leases: Helium, Who Ouns It?, 62 Mich. L. Rev. 1158, 1169 (1964).

The intention sought should be the general intent rather than any supposed but unexpressed specific intent, and, further, that general intent should be arrived at, not by defining and re-defining the terms used, but by considering the purposes of the grant or reservation in terms of manner of enjoyment intended in the ensuing interests.

Eugene O. Kuntz, The Law Relating to Oil and Gas in Wyoming, 3 Wyo. L.J. 107, 112 (1949). It can be said this approach would favor the conclusion that the coalbed methane, which unquestionably has the chemical composition of gas, belongs to the gas owner who is entitled to recover all gas beneath the surface wherever found unless, of course, specifically limited by the original conveyance. Edward A. Craig, III & Marlee S. Myers, Ownership of Methane Gas in Coalbeds, 24 Rocky Mtn. Min. L. Inst. 767 (1978). However, the coal owner argues that, because the gas is located within the coal seam, its right to mine, and thereby ventilate or waste the coalbed methane, implies ownership. Consequently, the court is faced with determining whether that right is tantamount to ownership or simply incidental to the right to mine. Id. at 784.

'{120] Coalbed methane ownership has been the subject of litigation for the last twenty years in a variety of forums with differing results. 1 Howard R. Williams & Charles J. Meyers, Oil and Gas Law § 219 at 274.5 to 274.10 (2000). As noted in the most recent and thorough discussion of this issue, "[t]he conflicting legal principles and the existing precedent ... do not point toward any one of these solutions as necessarily or even probably correct, so a court could adopt any one of the approaches described below." Jeff L. Lewin et al., Unlocking the Fire: A Proposal for Judicial or Legislative Determination of the Ownership of Coalbed Meth-ame, 94 W. Va. L.Rev. 568, 614 (1992). While no other case is on all fours with the facts herein, the approaches taken by other courts provide insight and guidance to our deliberations. The earliest case occurred in Pennsylvania and favored the coal owner relying on the "ownership in place" theory of oil and gas ownership and on the specific language of the conveyance which reserved to the gas owner only the "right to drill and operate through said coal for oil and gas." Hoge, 468 A.2d at 1384. Reasoning that the method of production of coalbed methane, which involved hy-drofacturing, had the potential of causing damage to the coal seam and increasing danger in the underground coal mine, the court found the coal owner had title to the entire strata and all gas found within it. Id. At the time of the conveyance, coalbed methane was primarily considered a dangerous waste product that had to be vented to allow for the safe production of coal, and, consequently, the court found it unlikely the parties would have intended to reserve it. Id. at 1384-85. However, the opposite conclusion could just as easily be drawn; e.g., the purchaser would not likely intend to purchase a dangerous waste product. Following established Pennsylvania precedent, the court concluded ownership of gas belonged to the owner in fee of the property wherein it was found to exist, apparently concluding that property was the coal seam. Id. at 1388.

[¶21] In Alabama, the courts have had several opportunities to consider the dispute over ownership of this mineral resource. Where the document reserving the oil and gas was "subject to the requirement that all coal seams located in said lands penetrated in such exploration or drilling operations shall be encased or grouted off," the court had no difficulty concluding the parties intended to separate the coalbed methane from the rest of the oil and gas present in other formations. Rayburn v. USX Corp., Civ. No. 85-G-2661-W, 1987 WL 470907, *2, 1987 U.S. Dist. LEXIS 6920, at *6 (N.D.Ala. July 29, 1987), affm'd, 844 F.2d 796 (11th Cir.1988). In a later Alabama case, Hoge was discussed at length, and its rationale was distinguished both on the specific language of the deed and by reliance on the "rule of capture" as opposed to the "ownership in place" rule. NCNB Texas National Bank, N.A. v. West, 631 So.2d 212 (Ala.1998). Under the rule of capture, a landowner acquires title to all the oil and gas which could be produced even if some of the oil and gas migrated from adjoining lands. Id. at 224 (quoting Hardwicke, The Rule of Capture and Its Implications as Applied to Oil and Gas, 18 Tex. L.Rev. 391, 398 (1935)). Although the Alabama Supreme Court saw the rule of capture in that jurisdiction as significant, at the same time, it recognized those rules of ownership apply more to disputes between neighboring gas producers than conflicts over who has the right to recover coalbed methane. Id. at 228; Lewin, 94 W. Va. L.Rev., supra at 592-98, 619.

[¶22] Despite these distinctions, the Alabama Supreme Court found that a deed, which granted "all the coal and connected mining rights" but reserved "all of the gas," conveyed the coalbed methane located within the coal seam. However, it did not include gas which had escaped into the material left after longwall mining was completed (the "gob zone"). The court seemed focused upon the bundle of property rights incident and necessary to the recovery of the coal and the potential for interference with those rights in the facts of that case. At the same time, the court found

no scientific or legal basis to support the proposition that coalbed methane gas should be treated as a resource separate and distinct from other natural gas, or from any other gas. The fact that the coalbed methane gas is produced by, and stored within, coal seams does not require the conclusion that a grant of "all coal" includes coalbed methane gas, nor does it require the conclusion that a reservation of "all gas" does not include coalbed methane gas.

NCNB Texas National Bank, N.A., 631 So.2d at 222-28 (footnote omitted). In addition, the Alabama Supreme Court found the dissent in Hoge to be compelling when it stated:

"Given their awareness of the presence of coalbed gas in the stratum, the earlier described similarities between coalbed gas and what has commonly been referred to as 'natural gas', and the fact that the unrestricted term 'gas' was employed in the reservation clause, we believe the plain meaning of the term 'gas' would be too far subverted were we to exclude coalbed gas as a recoverable gas."

Id. at 226 (quoting Hoge, 468 A.2d at 1389 (Flaherty, J., dissenting)). It appears to us the Alabama Supreme Court was convinced that coalbed methane was included within the term "gas" as utilized by the parties to the deed in question and, despite its statements to the contrary, was overly concerned about the possible conflicts if coalbed methane and coal were owned separately. In addition, its conclusion which grants title to the coal owner of the coalbed methane recovered prior to mining through horizontal and vertical drilling but title to the gas owner of gas left in the gob zone after mining fails, in our opinion, achieves the certainty and fairness all desire.

[¶23] In contrast, the Montana Supreme Court reached the opposite conclusion that the conveyance of "all coal and coal rights" did not include coalbed methane but did so by relying on the same ownership in place theory of oil and gas ownership which the Pennsylvania court utilized to arrive at the opposite conclusion in Hoge. Carbon County v. Union Reserve Coal Co., Inc., 271 Mont. 459, 898 P.2d 680, 685 (1995). Looking also to state statutes defining "coal" and "gas" and common meanings of the terms as provided by dictionaries, the Montana Supreme Court construed the plain meaning of the language of the deed in question as conveying only the solid mineral-coal.

[¶24] Struggling to articulate clear rules for the resolution of this difficult issue, the courts, especially when these cases are considered together, displayed confusing and inconsistent reasoning. While lip service is paid to the role of the theory of ownership of oil and gas in the respective jurisdictions, the ultimate rulings do not depend on which theory of ownership applies. In both ownership in place and rule of capture jurisdictions, courts have concluded the gas owner is entitled to all the gas it can capture, yet the coal owner owns the coalbed methane. We agree with those courts and commentators which have rejected reliance upon the nature of the ownership interest in oil and gas to resolve this question. Lewin, 94 W. Va. L.Rev., supra at 563. In addition, neither rule of ownership has been clearly adopted by this court to date, nor has the distinction been considered of any significant legal consequence. Mark W. Gifford, The Law of Oil and Gas in Wyoming: An Overview, 17 Land & Water L.Rev. 401, 404 (1982).

[¶ 25] The most recent ruling on the issue of ownership of coalbed methane involved determining the intent of Congress in reserving "all coal" from lands patented under the Coal Lands Acts of 1909 and 1910. Reversing the Tenth Cireuit Court of Appeals, the United States Supreme Court ended a long running controversy over ownership of coalbed methane in federal coal deposits. In doing so, the court did not follow the confusing array of state court cases and relied instead upon the plain meaning of the terms at issue to conclude Congress did not intend the term "coal" to include coalbed methane. Southern Ute Indian Tribe, 526 U.S. 865, 119 S.Ct. 1719. While the issues raised by the deed in question in this case are not identical to those faced in Southern Ute Indian Tribe, the Supreme Court's reasoning is applicable and persuasive to determining the intent of the parties herein.

[¶26] The Supreme Court looked to dictionary definitions which defined coal as a solid fuel resource and methane as a distinctly separate substance. Id. at 874, 119 S.Ct. 1719.

As these dictionary definitions suggest, the common understanding of coal in 1909 and 1910 would not have encompassed CBM gas, both because it is a gas rather than a solid mineral and because it was understood as a distinct substance that escaped from coal as the coal was mined, rather than as a part of the coal itself.

Id. at 874-75, 119 S.Ct. 1719. The Supreme Court also deemed it important that, although Congress was well aware of its existence, CBM was considered a dangerous waste product which escaped from coal as the coal was mined and this was confirmed by the fact that coal companies venting the gas to prevent its accumulation in the mines made no attempt to capture or preserve it. The more gas that escaped from the coal onee it was brought to the surface, the better it was for the mining companies because it decreased the risk of a dangerous gas buildup during transport and storage. Id. at 876, 119 S.Ct. 1719. While the relevant time frame for determining the intent of Congress in this regard was significantly earlier than applicable to the conveyance at issue in this case, no significant changes occurred in the 1909 through 1970 interim period relative to the general knowledge of the existence and value of coalbed methane. We can safely presume the parties to the warranty deed herein knew generally that methane existed in the coalbed, posed some safety problems although not as significant as those posed in underground mines, and was not viewed as having independent value.

[¶27] At bottom, our role is to give effect to the general intent of the parties to the conveyance with regard to the exploitation of the mineral resources. Rather than following some rigid rule of law, we believe this issue should be governed by the facts and cireumstances surrounding the execution of this warranty deed. This approach is consistent with that taken by other courts and recognized by the commentators as the most practical one. Lewin, 94 W. Va. L.Rev., supra at 638.

[¶28] In the case before us, we know the purpose of the mining company's purchase of the property was to allow the development of a surface coal mining operation. On the other hand, the landowners were fully aware that their property had value for its gas development as they had previously leased their oil and gas interest and had received the benefit of royalty payments. Their purpose in executing the warranty deed was to realize additional value from the property through the sale of the surface and their limited coal rights. The general intent which can logically be ascribed to these parties is that the landowners would retain any oil and gas found within the property and the coal operator would be able to fully exploit the coal resource. Each of the parties involved in this situation-the landowners, the original gas lessee, the coalbed methane operator, and the coal owner-operated consistently with this intent. The landowners, acting as the owner of the gas resource, leased all the right to produce oil and gas on the property with no distinction as to depth or source of the gas. The original oil and gas lessee proceeded to drill and produce, without distinction as to depth or source, all oil and gas found in the conventional manner. Twenty years later, when coalbed methane production became commercially feasible, the coalbed methane operator obtained an assignment of the oil and gas lease from the surface to 1,000 feet beneath the surface, under the obvious assumption that the coalbed methane was covered by the lease. And, for over twenty years, the coal owner operated its surface mine, venting whatever gas existed within the coal as it was mined, without objection or interference. To conclude that the landowners intended to separate the coalbed methane and convey it along with their outstanding royalty interest through the language of "all coal and minerals commingled with [the] coal" is simply not plausible.

[¶29] The coal operator argues it intended to acquire all minerals that were commingled with the coal in order to eliminate the possibility of conflicts between the development of those minerals and its mining operation. While that would be a logical conclusion to be drawn in the abstract, the potential conflict with oil and gas development would certainly not be averted in this situation by the coal owner also owning the private coalbed methane in a relatively small area of the mine, as conventional ofl and gas development already existed throughout the mine area and the coal operator did not own the federal coalbed methane which existed throughout the majority of the mine area. We also doubt conflicts with coalbed methane development per se, as distinct from other oil and gas development, were on the coal owner's mind at the time of the warranty deed since commercial development of that resource did not exist in this area.

[¶30] The coal operator strenuously argues the broad language of the warranty deed, "coal and minerals commingled with [the] coal," was intended to allow it to release the coalbed methane during the mining operation without liability. However, as noted by the Supreme Court:

The right to dissipate the CBM gas where reasonable and necessary to mine the coal does not, however, imply the ownership of the gas in the first instance. Rather, it simply reflects the established common-law right of the owner of one mineral estate to use, and even damage, a neighboring estate as necessary and reasonable to the extraction of his own minerals.

Southern Ute Indian Tribe, 526 U.S. at 879, 119 S.Ct. 1719 (citing Williams v. Gibson, 84 Ala. 228, 4 So. 350 (1888); Rocky Mountain Mineral Law Foundation, 6 American Law of Mining § 200.04 (2d ed.1997)). Other courts which have considered this issue agree the right to ventilate gas, which is an essential element of the right to mine, is not equivalent to ownership. NCNB Texas National Bank, NA., 631 at 226. No one questions the coal owner's right to ventilate coalbed methane in the course of mining. "The grant of coal mining rights would be useless if it did not include the right to ventilate methane gas from the coal mining area." Id. at 228.

[¶31] While we recognize that separate ownership of coal and coalbed methane may result in conflicts, we agree with the United States Supreme Court when it noted "[that is not the issue before us, however. The question is one of ownership, not of damage or injury," Southern Ute Indian Tribe, 526 U.S. at 879, 119 S.Ct. 1719, and the Alabama Supreme Court which stated, "The question before us is who owns the rights to coalbed methane gas ... and not who should own those rights." NCNB Texas National Bank, NA., 631 So.2d at 227. Conflicts between owners of different mineral estates are relatively common in the history of mineral development and are typically resolved through normal business negotiation and, if necessary, litigation. The surface use licenses and agreements for coalbed methane entered into between RAG and Hi-Pro clearly demonstrate that fact. In exchange for access and other mutually beneficial promises, Hi-Pro agreed to numerous steps to avoid interference with RAG's mining operation and to subordinate its rights to RAG's. In addition, Hi-Pro agreed RAG would not be Hable for damages or loss of production on adjacent lands operated by Hi Pro as a result of RAG's mining operations. While the terms of this agreement were no doubt dependent on the respective negotiating positions of the parties, it demonstrates the potential for accommodation and the improbability of negative impacts on the development of either resource from different ownerships of coal and coalbed methane. In addition, the potential for conflicts between oil and gas development and coal mining exists in this situation irrespective of whether the gas owner also owns the coalbed methane as gas produced by conventional methods is separately owned.

CONCLUSION

[132] On the basis of the unambiguous language of the deed and the surrounding facts and cireumstances, we conclude the parties generally intended the coal to be conveyed and the gas, wherever it may be located within the property, to be reserved to the landowners. Coalbed methane, being a gas, remained the landowners' property. By this ruling, we do not intend to imply that, in all circumstances, the conveyance of coal excludes the conveyance of the coalbed methane. Parties can certainly sever the coalbed methane from the remainder of the oil and gas estate and convey it separately. Such an explicit severance occurred in this case when the oil and gas lessee vertically segregated its oil and gas leasehold interest and assigned from the surface to 1,000 feet beneath the surface, which contained the coal seam, to Hi-Pro. However, the warranty deed from the landowners to the coal operator in this case, which conveyed "all coal and minerals commingled with coal that may be mined or extracted in association therewith or in conjunction with such coal operations"

but reserved all oil and gas, did not accomplish such a segregation.

[¶83] Reversed.

      . The referenced definition of "ventilate" is one of several definitions but was chosen as the most appropriate to the circumstances of this appeal.

      . This dispute arose over an underground mine where coalbed methane was produced through both horizontal and vertical wells which were hydrofractured to enhance production and wells drilled into the mine area after longwall mining was completed and subsidence created a "gob" of rubble into which coalbed methane collected. NCNB Texas National Bank, N.A., 631 So.2d at 215.

      . Mr. Gifford notes: "UKimately, the determination of whether nonownership theory or ownership in place theory applies to interests in oil and gas in Wyoming is of small consequence" and provides as authority for that conclusion 1 Howard R. Williams & Charles J. Meyers, Oil and Gas Law § 203.1 (1981). Gifford, 17 Land & Water L.Rev., supra at 404.

      . Only 200 acres of the coal owner's surface mine in this case involved private coal. The remainder, and the vast majority of the coal, consisted of federal coal. Consequently, pursuant to the Southern Ute Indian Tribe case, in most of the mine in this case, the coalbed methane is not owned by the coal owner.


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 133
    Sidney R. SCHADE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-52.
    Supreme Court of Wyoming.
    Sept. 6, 2002.

      Kenneth M. Koski, State Public Defender; and Donna D. Domonkos, Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference

   KITE, Justice.

[¶ 1] Sidney Schade pleaded guilty to two counts of immoral or indecent acts with a minor pursuant to a plea agreement by which the state agreed to recommend probation and Mr. Schade agreed to obtain a sex offender evaluation. Several months after his release on bond pending sentencing, Mr. Schade violated a bond condition which prohibited contact with the victims. The state petitioned to revoke his bond, and Mr. Schade was arrested. Mr. Schade and the state entered into a second plea agreement which provided the state would continue to recommend probation on the condition Mr. Schade was accepted into a community alternative placement program such as the Intensive Supervision Program (ISP). Sentencing was delayed while Mr. Schade unsuccessfully attempted to gain entrance into a variety of such programs. He was ultimately sentenced to two consecutive terms of three to five years of imprisonment. Mr. Schade appeals contending the state violated the first plea agreement and the district court failed to advise him he would be unable to withdraw his guilty plea. Finding no error, we affirm.

ISSUES

[¶2] Mr. Schade presents these issues for our review:

ISSUE I
Whether Mr. Schade's sentence is an illegal sentence because the interim probationary terms were illegal?
ISSUE II
Whether the state breached the plea agreement when it interfered with Mr. Schade's ability to complete the terms of the interim probation?
ISSUE III
Whether Mr. Schade should be allowed to withdraw his guilty plea because the court did not properly follow Rule 11, W.R.Cr.P., when it failed to properly advise Mr. Schade?
ISSUE IV
Whether Mr. Schade was denied due process when the court failed to sentence him within one year of adjudication of guilt?

The state phrases the issues as:

I. Did the state breach the plea agreement?
II. Did the district court fail to comply with the mandates of Rule 11 of the Wyoming Rules of Criminal Procedure in accepting Appellant's pleas?
III Did the district court abuse its discretion in imposing sentence?

FACTS

[¶3] Between May 1, 1999, and August 8, 1999, Mr. Schade inappropriately touched the victims, both age fourteen, on separate occasions. He was charged with one count of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(if) (LexisNexis 2001), two counts of immoral or indecent acts with a minor under Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2001), and two counts of causing or encouraging a child to commit with him any immoral or indecent act under § 14-3-105(a). On December 29, 1999, at his arraignment, Mr. Schade pleaded guilty to two counts of indecent or immoral acts with a minor. In exchange for his guilty pleas, the state agreed to dismiss the remaining three charges and recommend probation. Pursuant to both his bond conditions and this first plea agreement, Mr. Schade was prohibited from contacting his victims. The first plea agreement also required that he complete a sex offender evaluation prior to sentencing.

[T4] On February 16, 2000, the state petitioned to revoke his bond because Mr. Schade had contact with one of the victims, and the district court thereafter issued a bench warrant for his arrest. On May 12, 2000, Mr. Schade appeared before the district court for sentencing and acknowledged that a sex offender evaluation had not been completed. The parties reached a second agreement wherein the state would continue to recommend probation provided Mr. Schade was accepted in the ISP or a comparable program to ensure that (1) he had no further contact with the victims and (2) he enrolled in a sex offender treatment program. Although Mr. Schade was given approximately six months of continuances for his sentencing hearing to pursue admission into an ISP -type program, he was not accepted in any program. His inability to enroll in an acceptable program, coupled with his previous failure to abide by the terms of his bond release and plea agreement, caused the state to argue against probation at the sentencing hearing and to urge the court to impose consecutive imprisonment terms of four to six years. Concluding probation was not appropriate, on January 12, 2001, the district court sentenced Mr. Schade to serve consecutive imprisonment terms of not less than three years nor more than five years with credit against the minimum and maximum for time served while awaiting disposition. Mr. Schade now appeals his judgment and sentence.

DISCUSSION

A. Plea Agreement

[15] Mr. Schade contends the state breached the first plea agreement when it interfered with his ability to comply with its terms by incarcerating him and preventing him from being able to obtain the sex offender evaluation. Our standard concerning a plea agreement breach is as follows:

[WJhether the government has breached a plea agreement is reviewed de novo. In determining whether a breach has occurred, we: (1) examine the nature of the promise; and (2) evaluate the promise in light of the defendant's reasonable understanding of the promise at the time the plea was entered. " Principles of general contract law guide our analysis of the government's obligations under the agreement" Clingman [v. State], 2001 WY 46, ¶ 20, 23 P.3d [27,] 31 [ (Wyo.2001)] (quoting [United States v.] Peterson, 225 F.3d [1167,] 1170-71 [ (10th Cir.2000), cert. denied, 531 U.S. 1131, 121 S.Ct. 893, 148 L.Ed.2d 799 (2001) ]). It follows that, "as in contract," a party should not be released from its obligations under a plea agreement absent another party's material or substantial breach of that agreement. A material or substantial breach is one that goes to the whole consideration of the agreement. Several factors are relevant to whether a breach is material or substantial, including the extent to which the non-breaching party will be deprived of the benefit it reasonably expected and the extent to which the breaching party's conduct comports with the standards of good faith and fair dealing.

Browning v. State, 2001 WY 98, ¶ 32, 32 P.3d 1061, ¶ 32 (Wyo.2001) (some citations omitted).

[¶6] Mr. Schade asserts general principles of contract law prohibit a party's interference with another party's ability to perform its contract obligations. In this instance, he argues the prosecution's actions in revoking his bond made it impossible for him to fulfill a requirement of the first plea agreement that he obtain a sex offender evaluation. He asserts the state should not be permitted to rely on his nonperformance to revoke the plea agreement when the state's actions directly caused his nonperformance. However, the plea agreement was revoked because he contacted a victim. In addition, Mr. Schade had almost three months from the entry of his pleas on December 29, 1999, to the date of his arrest on March 22, 2000, for violation of his bond condition in which to complete the sex offender evaluation, and he failed to do so.

[¶7] Furthermore, Mr. Schade ignores the fact the plea agreement was renegotiated. The second agreement did not require a sex offender evaluation and, instead, was contingent on him being accepted into the ISP or a comparable program. Consequently, his completion of a sex offender evaluation was no longer a prerequisite for the state's probation recommendation and was irrelevant.

B. W.R.Cr.P. 11

[T8] Mr. Schade also contends, without citing any authority, the district court did not advise him that, if he failed to comply with the interim probation conditions, the state could not be forced to abide by the plea agreement. As an initial matter, there were no interim probation conditions; rather, no contact with the victims was a bond condition for Mr. Schade being released on his own recognizance. Although this bond condition was mentioned at the arraignment where Mr. Schade advised the court he accepted the first plea agreement, it was not an independent condition of the agreement. The "no contact" provision was mentioned merely in the context of a reminder to all parties that it was a requirement for bond. Furthermore, as the state points out, W.R.Cr.P. 11(d) does not require a district court, as a condition of ensuring a plea is voluntary, to specifically advise a defendant of the consequences of failing to comply with a plea agreement's terms. It is axiomatic that, if a defendant fails to comply with a plea agreement, the state is not bound by that agreement.

[T9] W.R.Cr.P. 11(d) requires a district court to assure that a plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The purpose of this rule is to allow the judge to determine whether the defendant entered the plea voluntarily and with an understanding of the consequences of the plea. Smallwood v. State, 748 P.2d 1141, 1143 (Wyo.1988). This court looks to the totality of the cireumstances to determine the voluntariness of a plea. Reyna v. State, 2001 WY 105, ¶ 9, 33 P.3d 1129, ¶ 9 (Wyo.2001). The well defined standard for determining whether a plea was knowing and voluntary provides:

"[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g.bribes)."

Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 LEd.2d 747 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957), rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)); see also State v. McDermott, 962 P.2d 136, 139 (Wyo.1998).

[¶10] For a determination of whether Mr. Schade's pleas were made voluntarily, we set forth the applicable portions of the plea hearing:

THE COURT: Good morning. Mr. Schade is here for re-arraignment; is that correct[?]
[DEFENSE COUNSEL]: rect, Your Honofr]. That's cor-
THE COURT: Are there any charge concessions or arrangements we should make of record concerning that change?
[DEFENSE COUNSEL]: Yes, Your Honor. It's my understanding that Mr. Schade will enter a plea of guilty to one count of the immoral acts for each minor victim, a total of two; that the prosecution and defense-that the prosecution is prepared to supplement factual basis, if necessary, but the prosecution and the defense will jointly recommend probationary disposition with a requirement to participate in an acceptable sex offender therapy program, to follow their recommendations and the other normal conditions of probation, no drugs, alcohol, no other crimes, DNA draw, ete. In exchange for that, the prosecution agrees to dismiss one count of immoral acts with a minor.
THE COURT: Is that the State's agreement?
[PROSECUTOR]: Yes, Your Honor. Just to specify two additional things. One is that this would be a plea to Counts II and III of the currently existing Information and that the conditions of recommending probation include that he get a sex offender evaluation pending sentencing and that he continue to abide by the no contact with the vietims provision.
THE COURT: Do you understand those to be the conditions of this probation, Mr. Schade?
THE DEFENDANT: Yes, sir.
[DEFENSE COUNSEL]: I have never heard these conditions. I guess I need a clarification. My understanding is that the probationary disposition would not depend on any recommendations or findings pursuant to the sex offender evaluation. We've had no discussions as to that.
THE COURT: As I understand what [the prosecutor] said, the only condition is that he participate in that sort of evaluation immediately pending sentencing.
[PROSECUTOR]: Correct. I didn't premise the recommendation of probation on that, just that I want that. That was part of the agreement that the sex offender evaluation actually be done prior to sentencing.
[DEFENSE COUNSEL]: We have no problem with that.
THE COURT: So are you clear on this, Mr. Schade,-
THE DEFENDANT: Yes, sir.
THE COURT:-how we are proceeding? Do you have any questions about it?
THE DEFENDANT: No, sir.
THE COURT: Apparently and, I guess it goes without saying, this arrangement was made with your knowledge and consent; is that correct?
THE DEFENDANT: Yes, siv.
THE COURT: So Mr. Schade will be offering pleas of guilty to Counts II and III. And those carry maximum penalties of up to 15 years' imprisonment for each count; is that correct?
[PROSECUTOR]: Honor. Ten years, Your
[DEFENSE COUNSEL]: Ten years.
THE COURT: Ten years.
[DEFENSE COUNSEL]: Also apparently, Your Honor, there are more counts to be dismissed than just one other count, there's three other counts being dismissed.
THE COURT: I gather all but II and III will be dismissed.
[DEFENSE COUNSEL]: rect. That's cor-
[PROSECUTOR]: Correct.
THE COURT: Mr. Schade, it's been stated here that one of [the] features of this agreement is that your counsel and the counsel for the State will jointly recommend probation. The Court will seriously consider that recommendation but it is not necessarily bound by it. Do you understand that?
THE DEFENDANT: Yes, siv.

(Emphasis added.) After Mr. Schade entered his pleas, the following colloquy occurred:

THE COURT: Finally then, Mr. Schade, other than the arrangement that has been talked about here this morning on the record, have there been any threats of any kind made to you or any promises of any kind to induce you to offer your pleas of guilty?
THE DEFENDANT: No, siz.
THE COURT: You offer these pleas voluntarily and of your own volition?
THE DEFENDANT: Yes, sir.
THE COURT: There is a factual basis underlying the pleas as to both counts and they are not improperly induced. Therefore, they are accepted and entered, and the Court will order a pre-sentence investigation report and require that Mr. Schade commence with the evaluation immediately or as soon as possible.

[T11]l This dialogue reflects that Mr. Schade entered his plea freely and voluntarily without threats or promises being made against or to him. It is evident he was informed the state's probation recommendation was contingent upon his completing a sex offender evaluation before his sentencing and having no contact with the victims. Under the totality of the cireumstances, we hold Mr. Schade entered his plea knowingly and voluntarily.

[¶12] Mr. Schade additionally claims the district court violated W.R.Cr.P. 11(e)(@2) by failing to advise him that he would be unable to withdraw his plea in the event it refused to accept the sentencing recommendation in the plea agreement. W.R.Cr.P. 11(e)(2) provides in pertinent part: "If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw the plea." In Stowe v. State, 10 P.3d 551, 552 n. 1 (Wyo.2000), the trial court advised Mr. Stowe that it was not bound by the plea agreement but failed to inform him that he did not have a right to withdraw his plea in the event it did not accept the recommendation. Citing W.R.Cr.P. 11(c)(2), we cautioned that failure to comply with the provision may require reversal of a conviction and remand to permit the defendant to withdraw his plea though we recognized it may also be treated as harmless error.? Id.

[113] Mr. Schade's whole tack in this argument is ill-founded because the first plea agreement was fully replaced and superseded by the second plea agreement. The judge did not fail to accept the sentencing recommendation contemplated by the second plea agreement because it was never made. At the sentencing, Mr. Schade was unable to comply with the condition of the second plea agreement that he be admitted into the ISP or an equivalent program, and, consequently, the state did not, and was not obligated to, make any probation recommendation. As a result, there was no requirement for the court to inform Mr. Schade he would not have the right to withdraw his plea if it declined to accept the state's probation recommendation. No recommendation was made or denied because Mr. Schade was unable to qualify for an acceptable alternative placement program, and so the option to withdraw the guilty plea on those grounds never materialized.

C. Sentencing Delay

[114] Mr. Schade maintains he suffered an impermissible delay in sentencing because he pleaded guilty on December 29, 1999, but was not sentenced until January 12, 2001.

We review speedy sentencing claims under an abuse of discretion standard. Reagan v. State, 14 P.3d 925, 927 (Wyo.2000). " 'Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)'" Reagan, 14 P.3d at 927 (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)).

Daugherty v. State, 2002 WY 52, ¶ 29, 44 P.3d 28, ¶ 29 (Wyo.2002).

[A] delay in sentencing in excess of a calendar year from the date guilt is established, whether by trial to a jury or the court or by plea, is presumptively unreasonable.... "The rule that we espouse protects important rights of the convicted defendant. It serves to prevent the possibility that a greater punishment than is deserved will be imposed because of subsequent conduct that results in a violation of the probation. It also serves to ensure that any vagaries of memory will not interfere with the imposition of a sentence appropriate to the individual and the erime."

Reagan v. State, 14 P.3d 925, 927-28 (Wyo.2000) (quoting Yates v. State, 792 P.2d 187, 192 (Wyo.1990) (citation omitted)). "The state bears the burden of demonstrating that the delay does not exceed the bounds of reason and the court should not be foreclosed from imposing sentence after the one year period of time." Detheridge v. State, 963 P.2d 233, 235 (Wyo.1998).

[¶ 151 We conclude the state carried its burden by demonstrating the sentencing delays were caused by Mr. Schade's multiple requests for continuances. We summarize these requests:

Sentencing Hearing Set Reason for Continuance New Sentencing Hearing Set

4/20/00 Continued at Mr. Schade's request so he could have more time to review the presentence investigation report. 5/12/00

5/12/00 Mr. Schade's counsel advised the court a new sentencing agreement had been reached and requested an ISP referral and a postponement for an eligibility determination. 7/7/00

7/7/00 Mr. Schade did not qualify for ISP so his counsel requested a continuance to determine his eligibility for the Frontier Corrections program. 7/20/00

7/20/00 Hearing continued to permit resolution of Mr. Schade's motion filed July 19, 2000, requesting the district court to require the prosecution to abide by the initial agreement to recommend probationary disposition ® 1/12/01.

1/12/01 Eligibility evaluations were ordered in November 2000 for the community alternatives programs in Casper, Rock Springs, and Gillette. Sentencing hearing was held approximately two weeks after the filing of the final program denial letter.

The district court permitted Mr. Schade and his counsel to thoroughly pursue a wide range of alternative community placement options prior to sentencing. It is evident from the record that Mr. Schade wanted to avoid serving a penitentiary sentence and was given the opportunity to investigate and apply for acceptance in a variety of programs. The time between the guilty plea and sentencing was extended as a direct result of Mr. Schade's actions. The court could have limited this process, but the failure to cut short these inquiries was not an abuse of discretion or unreasonable under the cireumstances.

[¶16] Mr. Schade also contends he was prejudiced by loss of good time credits as a result of the sentencing delay. Whether he would have qualified for such an award is wholly speculative. Further, he directly caused the time delay through the drawn out efforts to find an alternative to penitentiary confinement.

W.R.Cr.P. 32(c)(1) contains clear guidance for trial courts wishing to overcome the presumption that a delay in sentencing for over a year is unreasonable: "Sentence shall be imposed without unnecessary delay, the court may, when there is a factor important to the sentencing determination that is not then capable of being resolved, postpone the imposition of sentence for a reasonable time until the factor is capable of being resolved." If sentence is not to be imposed at the time guilt is established or soon thereafter, the trial court must ensure that the record clearly indicates the reason for the delay and the cireumstances under which the matter will be reset for sentencing.

Daugherty, 2002 WY 52, ¶ 44, 44 P.3d 28. The reasons for the delay are apparent in the record and indicate no abuse of discretion or prejudice.

[T17]) We, therefore, affirm the district court's decision in all regards.

      . W.R.Cr.P. 11(e)(1)(B) provides:
      (e) Plea Agreement Procedure.
      (1) In General. The attorney for the state and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser related offense, the attorney for the state will do any of the following:

      (B) Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court ...

      . The harmless error standard is set forth in W.R.A.P. 9.04: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court." See also W.R.Cr.P. 52(a). To demonstrate harmful error, the defendant must show prejudice under "circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Johnson v. State, 790 P.2d 231, 232 (Wyo.1990).

      . It is unclear from the record provided how this motion was resolved.


author: LEHMAN, Justice.

text:
    2002 WY 131
    Terry Ray VAUGHAN, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
    No. 01-31.
    Supreme Court of Wyoming.
    Sept. 6, 2002.
    Keith R. Nachbar, Casper, WY, Representing Appellant. Argument by Mr. Nach-bar.
    Gay Woodhouse, Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee. Argument by Mr. Delicath.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶1] This is an appeal from a determination of the State Medical Commission (Medical Commission) denying the permanent total disability claim of appellant Terry Ray Vaughan (Vaughan). We reverse and remand.

ISSUES

[¶2] Vaughan sets forth the following issues: |

1. Did the Medical Commission commit reversible error in failing to apply the odd lot doctrine in this case?
2. Did the Medical Commission panel improperly interpret and apply the definition of permanent total disability in denying the Claimant's benefits?
3. Is the unwillingness of the Claimant to become dependent on prescription pain medication a proper basis for denial of permanent total disability benefits, where the Division did not plead a harmful or injurious practice defense to the claim?

Appellee State of Wyoming ex rel. Wyoming Workers' Compensation Division (Division), phrases the issues on appeal as:

I. Does substantial evidence support the Medical Commission's determination that Appellant is not permanently totally disabled?
II. Did the Medical Commission err in applying the definition of permanent total disability from Wyo. Stat. Aun. § 27-14-102(a)(xvi)?

FACTS

[¶3] Vaughan suffered a serious work related back injury in 1994. After a number of surgeries, Vaughan received a twenty-three percent permanent partial impairment award in 1999. Vaughan's condition then worsened and, after failed attempts to secure employment given his physical limitations, Vaughan made an application for permanent total disability benefits which was denied by the Division. Vaughan appealed this determination, and a contested case hearing was held before the Medical Commission, with the Medical Commission upholding the decision of the Division. Vaughan then filed a petition for review before the district court, and this matter was certified directly to this court for appellate review.

STANDARD OF REVIEW

[¶4] Judicial review of an agency action is directed by Wyo. Stat, Ann. § 16-38-114. Serda v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 38, ¶ 18, 42 P.3d 466, ¶ 18 (Wyo.2002). Our standard of review when reviewing administrative agency action was recently clarified and refined in the case of Newman v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 91, 49 P.3d 163 (Wyo.2002). That case held that "the substantial evidence test is the appropriate standard of review ... when factual findings are involved and both parties submit evidence." Newman, at ¶ 22.

[¶5] In appeals where both parties submitted evidence at the hearing below, and the dispute is over the soundness of the factual findings of the agency, Newman mandates the appellate review be limited to application of the substantial evidence test. Id. This is true regardless of which party appeals from the agency decision. The substantial evidence test provides:

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 accept in support of the agency's conclusions. It is more than a seintilla of evidence.

Newman, at "I 12 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001)). In addition, we held that this court is required to review the entire record in making its ultimate determination on appeal. Newman, at T 19 and I% 24-26.

[¶6] In State ex rel. Workers' Safety and Compensation Div. v. Garl, 2001 WY 59, ¶ 9, 26 P.3d 1029, ¶ 9 (Wyo.2001), we further recognized that:

The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are questions of law over which our review authority is plenary. Collicott [v. State ex rel. Workers' Safety and Compensation Div., 2001 WY 35], ¶ 4[, 20 P.3d 1077, ¶4 (Wyo.2001)]. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

[¶7] Moreover, the de novo review by this court of the conclusions and application of law made by the administrative agency should not be confused with the arbitrary and-capricious standard of review enumerated in Newman. Newman provides that even when the factual findings are found to be sufficient under the substantial evidence test, this court could possibly be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards. A purely demonstrative listing is provided of situations which might warrant the consideration of the arbitrary-and-capricious standard in addition to the substantial evidence tests. Newman, at 123. However, the instant appeal presents no such unique circumstances. In accord see Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

DISCUSSION

[18] Vaughan argues it was reversible error for the Medical Commission to fail to apply the odd lot doctrine with respect to his permanent total disability claim. This court has long recognized the odd lot doe-trine with respect to permanent total disability determinations made within the purview of the Wyoming Worker's Compensation Act. In the case of Schepanovich v. United States Steel Corp., 669 P.2d 522, 525 (Wyo.1983) this court stated:

In our opinion in Cardin v. Morrison-Knudsen, Wyo., 603 P.2d 862 (1979), this court adopted a definition of the "odd-lot doctrine" as follows:
"... The 'odd-lot doctrine' is described in 2 Larson, Law of Workmen's Compensation, § 57.51 at p. 10-109 (1976), as providing that permanent total disability 'may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well known branch of the labor market'" 603 P.2d at 868-864.
An injured workman who comes within the "odd-lot doctrine" need not show that he is totally incapable of doing any work at all in order to be entitled to an award for permanent total disability. E.R. Moore Co. v. Industrial Commission, 71 Ill.2d 353, 17 Ill.Dec. 207, 376 N.E.2d 206 (1978); Wilson v. Weyerhaeuser Company, 30 Or.App. 403, 567 P.2d 567 (1977); and 2 Larson, Workmen's Compensation Law, § 57.51, at 10-164.21 (1982). This court has stated the proposition in this fashion:
"... The theory of counsel for the employer appears to be that the workman must go further than to show that he cannot do any hard work; that he must also show that he cannot do light work. Of course, it would almost be impossible, in many instances, for a man educated only to do hard work, to show that at some time or other some good Samaritan might not turn up and offer him some light work which he might be able to do. The law does not require impossibilities. It is stated in 71 C.J. 1071 that 'where it is found that the employee is permanently and totally disabled so far as hard or manual work is concerned, but that he might do light work of a special nature not generally available, the burden is on the employer to show that such special work is available to the employee." ..." In re Iles, 56 Wyo. 443, 452, 110 P.2d 826 (1941).

[¶9] This court went on further to enunciate in Schepanovich, at 528:

The burden of proof initially is assigned to the injured workman who is seeking to qualify as permanently totally disabled under the "odd-lot doctrine" to demonstrate that he is incapacitated "from performing any work at any gainful occupation for which he is reasonably suited by experience and training." Section 27-12-405(a), W.S.1977; Cardin v. Morrison-Knudsen, supra. The test to be invoked is whether the workman is so disabled that the services which he is reasonably equipped to perform by his experience and training are not marketable in a well-known branch of the labor market in the community so as to provide a steady and continuous source of income rather than sporadic or intermittent employment. See 2 Larson, Workmen's Compensation Law, § 57.51 (1982). If that showing is made, the burden of proof is then shifted to the employer to show that light work of a special nature which the employee could perform but which is not generally available in fact is available to the employee. In re Iles, supra; Cardin v. Morrison Knudsen, supra.

[¶10] Finally, this court adopted the following rule formulated in 2 Larson, Workmen's Compensation Law, § 57.61, at 10-164.95 to 1-164.114 (1982) through its opinion in Schepanovich, at 528-29:

"... If the evidence of degree of obvious physical impairment, coupled with other facts such as the claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work, and then round out the case for noncompensability by adding a presumption that light work is available....
"The corollary of the general-purpose principle just stated would be this: If the claimant's medical impairment is so limited or specialized in nature that he is not obviously unemployable or relegated to the odd-lot category, it is not unreasonable to place the burden of proof on him to establish unavailability of work to a person in his cireumstances, which normally would require a showing that he has made reasonable efforts to secure suitable employment...."
Other jurisdictions in this context have held that an employee in circumstances similar to those of the appellant must show that reasonable efforts have been made to obtain suitable employment in order to meet their burden of proof and shift the burden of proof to the employer. Wiedmaier v. Industrial Commission, 121 Ariz. 127, 589 P.2d 1 (1978); Oliver v. Wyandotte Industries Corporation, Me., 360 A.2d 144 (1976), Mares v. Kerr-McGee Nuclear Corporation, 93 N.M. 9, 597 P.2d 1178 (1978) (Sutin, J., specially concurring); Haines v. State Accident Insurance Fund, 27 Or.App. 793, 558 P.2d 367 (1976); Shealy v. Algernon Blair, Inc., 250 S.C. 106, 156 S.E.2d 646 (1967). See also cases cited in 2 Larson, Workmen's Compensation Law, § 57.61 at 10-164.114, n. 29 (1982).

[111] Recognizing the above precedent, Vaughan argues the Medical Commission erred when it found he was not entitled to a permanent total disability award. In particular, Vaughan contends the Medical Commission erred in holding he had failed to sustain his burden of proof on the issue of permanent total disability as defined by § 27-14-102(a)(xvi). He argues vigorously the uncontradicted and unimpeached testimony in the record establishes he is permanently incapacitated from performing any work at any gainful occupation for which he was reasonably suited by experience and training. His position is the Division failed to present any evidence that some special work of a light or sedentary nature was actually available to him so he could not qualify as a permanently disabled worker under the odd lot doctrine. We agree.

[¶12] In § 27-14-102(a)(xvi) (Lexis 1999) there appears a definition of permanent total disability, which reads as follows:

(a) "Permanent total disability" means the loss of use of the body as a whole or any permanent injury certified under W.S. 27-14-406, which permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training.

The claim of Vaughan that he is totally disabled is presented under the phrase relating to a condition which "permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training." It is of significance that the legislature specifically used the words "gainful occupation" in this definition which suggests its concurrence with those policy considerations utilized previously by this court in support of the adoption of the odd lot doctrine. In fact, this court has previously recognized the statutory definition for permanent total disability is consistent with the odd lot doctrine. Gilstrap v. State ex rel. Workers' Compensation Div., 875 P.2d 1272, 1274 (Wyo.1994) (citing City of Casper v. Bowdish, 713 P.2d 763, 765 (Wyo.1986) and Cardin v. Morrison-Knudsen, 603 P.2d 862, 863-64 (Wyo.1979)).

[¶13] In October of 1994, while employed as a cabinetmaker, Vaughan fell injuring his back as he was walking down a plank at a construction sight. On November 8, 1994, Vaughan submitted to surgery for re-exploration of a laminectomy and removal of a recurrent disk protrusion at the L4-L5 area of his spine in an effort to decompress the L-5 nerve root. Dr. Robert C. Wood performed this surgery. This surgery was not successful as Vaughan continued to experience severe pain and problems with his lower back and lower extremities.

[¶14] On November 29, 1995, Vaughan underwent surgery for a fusion of the L4 through S-1 levels. This surgery was performed by Dr. Whitney S. Robinson along with Dr. Wood. This surgery was again unsuccessful. Dr. Robinson then performed a third surgery on Vaughan in January of 1997 and removed the hardware that had been installed during the 1995 surgery. During this surgery it was noticed that although Vaughan's own bone, a metal plate, and a screw fixation were used during the earlier fusion operation, the fusion did not take, resulting in Vaughan's spine being comprised of less bone and bony structure than prior to the fusion operation and causing chronic instability between the lower vertebrae and the pelvis. Even after removal of the hardware, Vaughan's back and leg pain and related symptoms continued.

[¶15] Dr. Wood recommended a fourth anterior fusion surgery. A second doctor also recommended this surgery. Nevertheless, Vaughan declined to undergo that operation due to risk of complications and because there was no guarantee of success.

[¶ 16] On March 5, 1999, after a contested case hearing, Vaughan was given a twenty-three percent whole body impairment award. This award was based upon the instability of Vaughan's spine and persisting nerve root symptoms. Vaughan testified at the hearing that he was forty-seven years old and advised that he had previously worked at various jobs making cabinetry, in heavy construction, and as a retail salesman over his occupational career. Vaughan also stated that he had received a high school diploma and had received only approximately twelve college credit hours during the 1972/1978 school year.

[¶ 17] Since his accident in 1994, Vaughan had only been able to be gainfully employed for two weeks in May of 1998 making cowboy spurs which involved easy sedentary labor of sanding, polishing, and grinding. This job allowed Vaughan to be able to alternate positions frequently, and his employer accommodated his disabilities. However, Vaughan was only able to work 17% hours the first week and 15 hours the second week due to his continued pain and related symptoms. Vaughan was released from this job because the employer needed someone that could work a consistent forty-hour work week.

[¶18] Vaughan also testified that, although he could generally take care of himself, his home, and his yard as a divorced single man, he had to struggle to perform these duties because of the pain and other symptoms that he continues to experience. These duties were performed slowly and primarily in the morning hours. During the afternoon, because of increased pain, exhaustion, and the increased onset of other symptoms, Vaughan had to remain sedentary. Vaughan also stated that, while he used to enjoy hunting, fishing, and cross country skiing, he was simply now unable to go on these outings for even a half day.

[¶19] At the time of the hearing, Vaughan was experiencing constant, severe aching and stabbing pain with tingling that ran from his lower back through his buttocks into his thighs and knees every day. He also advised that he was numb from his lower back from his incision through his rectum. He further stated that his left leg was numb from the knee down through his left foot with his right leg being numb from his ankle through that foot. He described his legs as if they had both gone to "sleep" and he could not "wake them up." This substantially affected Vaughan's ability to walk. Vaughan also testified that his left leg "folded up" and gave out without warning on an average of once a week, that he had worsening bowel and bladder urgency, and that he needed to use a cane about fifty percent of the time. Vaughan had also experienced migraines since his accident. Dr. Wood confirmed that Vaughan had these difficulties as a result of his condition. Dr. Brown stated that he would not be surprised that Vaughan experienced these difficulties.

[¶20] Vaughan also testified that he had applied for a number of jobs at hotels, motels, convenience stores, craft shops, a gift shop, and cabinet shops. His job search was extensive and documented. Vaughan had also worked with the Department of Voeca-tional Rehabilitation and registered with Job Service in an effort to obtain employment. Nevertheless, Vaughan was unable to find employment given his limitations.

[¶21] Vaughan further testified that he did not believe that he could return to a cabinet making job due to the heavy lifting requirements necessary of those positions of employment. He also stated that under those current pain and other health concerns he was experiencing that he did not feel he could function over a consistent period of time at a light duty or sedentary job.

[¶22] Vaughan's treating physician, Dr. Wood, a neurosurgeon, testified via his submitted deposition about the various surgeries performed on Vaughan, that Vaughan had a chronically instable spine from his lower spine to his pelvis with abnormal vertebrae movement and loss of motion segment integrity and other surgical options that were considered. Also, as noted above, Dr. Wood confirmed Vaughan's experience of constant, severe pain, tingling and numbness in his lower back and lower extremities, and his increased bowel and bladder problems. Dr. Wood also stated that he felt that Vaughan's condition had worsened over the past three years and that Vaughan was permanently totally disabled. Finally, Dr. Wood stated that Vaughan was permanently incapacitated from consistently performing work at any gainful occupation for which he was reasonably suited by experience or training even at the sedentary or light duty level.

[¶23] Ms. Noecker, M.A., a certified vocational evaluator and licensed professional counselor with a national counselor certification, also testified at the hearing, and her Vocational Evaluation Report and Addendum were submitted into evidence. After an in depth vocational evaluation looking at various test results obtained by Vaughan, reviewing Vaughan's educational and work history, and recognizing his restrictions, Ms. Noecker initially concluded that Vaughan might be able to perform part-time light duty to sedentary work but questioned whether Vaughan could, in reality, perform this type of work. Thereafter, Ms. Noecker re-evaluated Vaughan given additional information that she had obtained concerning the worsening of Vaughan's situation and submitted an Addendum to her original report. Upon re-evaluation, Ms. Noecker concluded that Vaughan was disabled and not employable since he was not able to perform and sustain part-time light duty to sedentary work. In coming to this conclusion, Ms. Noecker further indicated that given her knowledge and experience of the Wyoming job market that Vaughan was not gainfully employable in a well known branch of the labor market in Wyoming so as to provide him with a steady and continuous source of income considering his mental ability, age, experience, training, and physical limitations.

[¶ 24] Given those facts, we conclude that Vaughan met his burden of proof under the "odd lot doctrine." These facts evidence that Vaughan was incapacitated from performing any work at any gainful occupation for which he was reasonably suited by experience and training. Moreover, these facts support a determination that he was so disabled that the services which he was reasonably equipped to perform by his education, experience, and training were not marketable in a well-known branch of the labor market in the community so as to provide a steady and continuous source of income rather than sporadic or intermittent employment.

[125] As we recognized above, under the "odd lot" doctrine, onee an employee shows that he is permanently and totally disabled so far as hard or manual work is concerned, but that he might do light work of a special nature not generally available, the burden of proof is then shifted to the employer to show that such special work is available to the employee. In this case, the Division proffered only one witness, Dr. Brown, who also testified through his earlier taken deposition.

[126] Review of Dr. Brown's testimony discloses that the Division retained him to perform an independent medical evaluation of Vaughan. As a part of this independent examination, Dr. Brown examined Vaughan and obtained a history from him for approximately one hour and reviewed various medical records received exclusively from the Division. Thereafter, Dr. Brown opined that Vaughan was not totally disabled because he felt Vaughan could perform sedentary to light physical demand level categories of work within his recognized limitations.

[¶27] However, Dr. Brown confirmed that Vaughan certainly had significant restrictions in terms of what he could do. Moreover, Dr. Brown also stated that his opinion was based on his feeling that determining that someone was totally disabled was a very serious thing to do because often, after such a rating, the person involved gave up on working, it affected the patient severely from a psychological standpoint, and marked the "beginning of the end" for many patients. Further, Dr. Brown indicated that he knew that Vaughan was unable to continue to make cabinets or work making spurs, yet apparently still believed that Vaughan could perform sedentary to light physical demand level categories of work within his recognized limitations.

[¶28] Critically, although Dr. Brown stated that in his specialty he had toured many work places in the Salt Lake City Valley and in San Diego, California and that this allowed him to extrapolate what a person could do in the job market, Dr. Brown admitted that he did not have knowledge of or perform any study or evaluation of the labor market in Sheridan, Wyoming. Dr. Brown also acknowledged the economic environment in the Salt Lake City area was different than that of Wyoming since the former had larger companies who wanted to keep workers' compensation costs down. Further, Dr. Wood admitted that the key to post-injury employment is to find light enough work that the disabled individual could perform for a full or close to full time basis.

[¶29] -In addition, when asked to describe what occupations persons with Vaughan's limitations could perform, Dr. Brown stated that he was more comfortable with identifying what the restrictions were and allowing a vocational rehabilitation expert to identify the particular jobs that might be available. In fact, on further examination, Dr. Brown stated that whether someone can perform a job requires consideration of more than just the physical condition of the person, his specialty, but also the job market and availability, as well as mental abilities, education, training and experience, which were things that he "stayed out of" and were best left for a vocational evaluator to determine. Dr. Brown also clearly stated that he never "wanted to come across as saying" that work was available for Vaughan but just wanted to state what he was capable of performing. Dr. Brown further agreed with Dr. Wood that the duration that Vaughan could perform certain work tasks was a valid consideration. Dr. Brown also admitted that he did not perform any vocational testing on Vaughan to determine his ability to handle different types of work.

[¶30] Accordingly, we must conclude that the Division failed to meet its burden of proof in showing that special work was available to Vaughan in Wyoming given his particular limitations. Indeed, Dr. Brown, the Division's only witness, stated that this very area of expertise was outside his area of knowledge and was best left for determination by a vocational rehabilitation expert. He also advised that he did not have knowledge of or perform any study or evaluation of the labor market in Sheridan, Wyoming. Further, we explicitly recognize that Ms. Noecker, a specialist in the vocational arena who had detailed knowledge of the labor market in Wyoming, specifically indicated that Vaughan was not gainfully employable in a well known branch of the labor market in Wyoming so as to provide him with a steady and continuous source of income considering his mental ability, age, experience, training and physical limitations.

[131] As a last issue, Vaughan argues that the Medical Commission erroneously applied evidence that Vaughan was unwilling to become dependent on prescription non-narcotic pain medication as a basis for its decision. Vaughan argues that the practical effect of this determination was that the Medical Commission found that Vaughan had committed harmful or injurious practices sufficient to deny him benefits as defined under § 27-14-407 (LexisNexis 2001) when this section was not asserted in pleadings nor argued at hearing.

[¶82] Wyo. Stat. § 27-14-407 provides:

If an injured employee knowingly engages or persists in an unsanitary or injurious practice which tends to imperil or retard his recovery, or if he refuses to submit to medical or surgical treatment reasonably essential to promote his recovery, he forfeits all right to compensation under this act. Forfeiture shall be determined by the hearing examiner upon application by the division or employer.

(Emphasis added.) Clearly, the Division did not make any application before the Medical Commission as plainly required pursuant to § 27-14-407. No mention is made of these issues in the Final Determination issued by the Division in this case, within the Division's Disclosure Statement, or otherwise during the entire pendency of this matter. Indeed, review of the record reveals that the Division brought forward those facts regarding the usage of prescription medication by Vaughan in an effort to minimize the level of pain felt by Vaughan as a result of the accident. Therefore, it was improper for the Medical Commission to make its ruling on this issue as it was never properly placed before 'it.

[¶33] Furthermore, we believe that our conclusion is consistent with fair and equitable due process. Due process demands that an employee know before the hearing the specific nature of the claims asserted. If the pleadings and notice of hearing are to mean anything in a contested case hearing, the administrative body must be limited in considering only those issues presented in the notice and pleadings. 'In accord, Wesaw v. Quality Maintenance, 2001 WY 17, ¶¶ 19-21, 19 P.3d 500, ¶¶ 19-21 (Wyo.2001).

[¶34] Finally, we note that the record does not support a finding that the Division even remotely met its burden of proof as established concerning this issue. See State ex rel. Workers' Compensation Div. v. Bergeron, 948 P.2d 1367, 1370 (Wyo.1997); Celotex Corp. v. Andren, 917 P.2d 178, 180 (Wyo.1996); Stanolind Oil & Gas Co. v. Harvey, 52 Wyo. 349, 75 P.2d 1, 2 (1938); In Re Hibler, 37 Wyo. 332, 261 P. 648, 651 (Wyo.1927).

CONCLUSION

[¶35] The Medical Commission erred as a matter of law in not properly applying the "odd lot" doctrine which is well established under Wyoming case law. In addition, the Medical Commission erred as a matter of law by failing to recognize that the definition of permanent total disability includes a condition which "permanently incapacitates the employee from performing work at any gainful occupation for which he is reasonably suited by experience or training" which is consistent with the "odd lot" doctrine. (Emphasis added.) Further, the Medical Commission erred in its finding of fact since insufficient evidence exists to support its ultimate determination. We also specifically conclude that sufficient evidence exists to support that Vaughan met his required burden of proof under the "odd lot" doctrine. Conversely, insufficient evidence exists to establish that some kind of suitable work was regularly and continuously available to Vaughan given his limitations so as to provide Vaughan with a steady and continuous source of income as was required to be shown by the Division when the burden of proof shifted to the Division under the "odd lot" doctrine. Finally, we hold that the Medical Commission erred when it determined that Vaughan's unwillingness to become dependent on prescription non-narcotic medication was an appropriate basis for its denial of benefits as this issue had not been properly brought before the Medical Commission by the Division in this case.

[¶36]) Reversed and remanded to the district court for its remand to the Medical Commission for entry of an order consistent with this opinion.

      . Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001):
      (c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
      (i) Compel agency action unlawfully withheld or unreasonably delayed; and
      (ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
      (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
      (B) Contrary to constitutional right, power, privilege or immunity;
      (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
      (D) Without observance of procedure required by law; or
      (E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

      . In making this holding, this court specifically abrogated previous case law which required this court to review the record in an administrative action by examining only that evidence that favors the prevailing party, allowing every favorable inference, while omitting consideration of any conflicting evidence. This previously required type of review was aptly characterized by this court as the "prevailing parties' evidence" concept. Newman, at 125.

      . "For example, the administrative record may be replete with evidence supporting the decision, and yet the agency may have willfully discounted credible evidence, refused to admit certain testimony or documentary exhibits, or failed to provide findings of fact or conclusions of law." Newman, at I 23.

      . In 1992, Vaughan underwent surgery concerning this same area of his back. After this surgery, Vaughan completely recovered having no problems until his 1994 accident.

      . Dr. Terry A. Brown, an independent medical examiner in this case specializing in occupational medicine, also stated that he understood Vaughan's decision not to have this surgery.

      . Vaughan's detailed occupational career history and educational history were also set forth in detail in the Vocational Evaluation Report made by Deann Noecker, M.A., a certified vocational evaluator and licensed professional counselor with a national counselor certification. Ms. Noecker also testified at the hearing in this matter.

      . Vaughan's supervisor at that job indicated that Vaughan tried hard to succeed but was unable to sustain the work because of his pain and other sympioms. Similarly, Dr. Brown stated that Vaughan had adapted well with his acknowledged chronic pain, had not given up on life, was not depressed or overly negative, and had some "energy to him."

      . Vaughan's job search not only included inquiries with hotels, motels, convenience stores, craft shops, a gift shop, and cabinet shops but also with a video store, a realty company, a thrift shop, a liquor store, Federal Express, a veterinarian, K Mart, Wal Mart, a taxidermist, a utility company, a small engine shop, an auto shop, a glass shop, the VA Hospital, a carpet cleaner, as well as others.

      . Vaughan was also awarded Social Security disability benefits and continues to receive this assistance.