author: LEHMAN, Justice.

text:
    2003 WY 62
    R.C.R., INC., a Wyoming corporation, Appellant (Petitioner), v. Robert E. DELINE and Annabelle M. Deline Gary L. Palmer and Nancy J. Palmer; and Kirk Company, a Texas Partnership, Appellees (Respondents).
    No. 02-116.
    Supreme Court of Wyoming.
    May 22, 2003.

      Kermit C. Brown of Brown & Hiser, LLC, Laramie, WY, Representing Appellant. Argument by Mr. Brown.
    John A. MacPherson of MacPherson, Kelly & Thompson, LLC, Rawlins, WY, and John R. Vincent, Riverton, WY, Representing Ap-peliees. Argument by Mr. MacPherson.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and DONNELL, D.J.
   LEHMAN, Justice.

[¶1] We review the actions of the Carbon County Board of County Commissioners (Board), which were later affirmed by the district court, establishing a private road and assessing damages. We affirm.

ISSUES

[¶2] Appellant R.C.R., Inc. (appellant) sets forth the following issues with which appellees Robert E. Deline, Annabelle M. Deline, Gary L. Palmer, Nancy J. Palmer, and Kirk Company (collectively appellees) ostensibly agree:

1. Was the Appellant wrongfully precluded from offering evidence relevant to the value of the property on February 18, 20017 -
2, Did the Viewers improperly ignore damages to all of Appellant's land as required by Lindt v. Murray, 895 P.2d 459 (Wyo.1995)7
3. Did the Viewers improperly determine the damages to Appellant's land in contravention of the prineip[le]s enunciated in Lindt v. Murray, supra?
4. Was the Appellant denied protections afforded it by the State of Wyoming and U.S. Constitutions?

FACTS

[¶3] On September 16, 1997, pursuant to Wyo. Stat. Ann. §§ 24-9-101 to -108 (Lexis 1999), appellees filed a Petition for Private Road. In addressing this petition, the Board appointed a hearing officer to preside over the proceedings. Beginning on August 19, 1998, a two-day evidentiary hearing was held, culminating with the Board entering findings of fact and an order establishing that 1) there was no outlet to a public road; 2) proper notice was given; and 3) a reasonable and convenient road had been proposed by appel-lees. The Board also appointed Stuart Quealy, Elmer Peterson, and James Espy as viewers and appraisers pursuant to Wyo. Stat. Ann. § 24-9-101.

[T4] On January 15, 1999, the viewers and appraisers met on the property and ultimately filed their report with the Board on June 21, 1999. On September 27, 1999, a second evidentiary hearing was held before the Board. At this hearing, appellant did not object to the location of the road established by the viewers and appraisers because the location of the road was appellant's preferred route. Appellant did, however, contest the assessment of damages made by the viewers and appraisers.

[¶5] On December 7, 1999, the Board entered an order that adopted the hearing officer's recommended findings of fact and conclusions of law and ordered the establishment of the private road (Order I). The established private road was consistent with that recommended by the viewers and appraisers. The Board also adopted the assessment of damages made by the viewers and appraisers.

[T6] Appellant filed a petition for review of administrative action regarding Order I. Upon its review, the district court partially vacated Order I by issuance of a decision letter finding that "the Viewers' determination of damages must be set aside due to lack of substantial evidence" and remanded the matter back to the Board "for the sole and narrow issue of determining damages." In particular, the district court ordered that the Board either 1) have the viewers and appraisers resubmit a report explaining their determination of damages, upon which a subsequent due process hearing would be held, or 2) hold an additional due process hearing on the existing report of the viewers and appraisers whereupon the viewers and appraisers could explain their determination of damages and be subject to cross-examination.

[T71 Choosing the latter option, a third hearing on the issue of damages was held by the Board on February 13, 2001. After this hearing, the Board entered another Order that adopted the hearing officer's recommended findings of fact and conclusions of law and established the private road (Order II). Appellant again appealed Order II to the district court. Ultimately, the district court entered an order affirming the actions of the Board. This appeal followed.

STANDARD OF REVIEW

[T8] In Wagstaff v. Sublette County Bd. of County Comm'rs, 2002 WY 123, ¶7, 53 P.3d 79, ¶ 7 (Wyo.2002), a case also involving the establishment of a private road, we declared:

We review the administrative order issued by the Board as if it had come directly to this court from the Board. Dunning v. Ankney, 936 P.2d 61, 63 (Wyo.1997) (citing State ex rel. Workers' Compensation Div. v. Fisher, 914 P.2d 1224, 1226 (Wyo.1996)). We examine the entire ree-ord to determine whether substantial evidence supports the administrative agency's findings of fact. We may not substitute our judgment for that of the agency when substantial evidence supports its decision. Dunning, at 63 (citing Celotex Corp. v. Andren, 917 P.2d. 178, 180 (Wyo.1996)). "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions." Dunning, at 63 (quoting Latimer v. Rissler & McMurry Co., 902 P.2d 706, 709 (Wyo.1995)). We do not, however, defer to an agency's conclusions of law. If the correct rule of law has not been correctly applied, the agency's errors are to be corrected. Dunning, at 63; see also generalty, Mayland v. Flitner, 2001 WY 69, ¶ 10, 28 P.3d 838, ¶ 10 (Wyo.2001) and Miller v. Bradley, 4 P.3d 882, 886 (Wyo.2000).

DISCUSSION

Date of Valuation/Evidentiary Issues

[19] Citing Wyo. Stat. Ann. § 24-9-103, appellant contends that only after the Board has determined that the viewers' and appraisers' report-which addresses the location of the road and the amount of damages-is "just" and payment of the assessed damages by the applicant of all costs of locating the road, can the road then be declared to be a private road. Thus, appellant argues that until such time, no "taking" has occurred and, therefore, a date of valuation has yet to occur. Continuing this line of reasoning, appellant asserts that both the district court and the Board erred by precluding it from presenting additional evidence of the value of appellant's property affected by the proposed road for the time period of September 28, 1999, to June 20, 2001.

[T10] Appellant's argument requires us to interpret certain statutes that are applicable to the establishment of private roads. In State by and through Dep't of Rev. v. Union Pacific Railroad Co., 2003 WY 54, ¶ 12, 67 P.3d 1176, ¶ 12 (Wyo.2003) (quoting McClean v. State, 2003 WY 17, ¶ 6, 62 P.3d 595, ¶ 6 (Wyo.2003)), we explained:

We have long recognized that conclusions of law, such as questions regarding statutory interpretation, are to be reviewed by this court de novo. Hutchings v. Krachun, 2002 WY 98, ¶ 10, 49 P.3d 176, ¶ 10 (Wyo.2002). In Pagel v. Franscell, 2002 WY 169, ¶ 9, 57 P.3d 1226, ¶ 9 (Wyo.2002) (citing Wyoming Cmty. College Comm'n v. Casper Cmty. College Dist., 2001 WY 86, ¶¶ 16-18, 31 P.3d 1242, ¶¶ 16-18 (Wyo.2001)), we stated:

In interpreting statutes, 'our primary consideration is to determine the legislature's intent.: Fontaine v. Board of County Comm'rs, 4 P.3d 890, 894 (Wyo.2000); State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). Legislative intent must be ascertained initially and primarily from the words used in the statute. Allied-Signal, Inc. v. State Board of Equalization, 813 P.2d 214, 219 (Wyo.1991); Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 837 (Wyo.1991). When the words are clear and unambiguous, a court risks an impermissible substitution of its own views, or those of others, for the intent of the legislature if any effort is made to interpret or construe statutes on any basis other than the language invoked by the legislature. Allied-Signal, 813 P.2d at 219. Moreover, "[alll statutes must be construed in pari materia; and in ascertaining the meaning of a given law, all statutes relating to the same subject or having] the same general purpose must be considered and construed in harmony." Fontaine, 4 P.Bd at 894 (citing State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d at 735).
Therefore, in performing our review, we look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Olheiser v. State ex rel. Worker's Compensation Div., 866 P.2d 768, 770 (Wyo.1994) (citing Parker Land & Cattle Company v. Game & Fish Comm'n, 845 P.2d 1040, 1042-43 (Wyo.1998)). A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle, at 1043. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. We have said that divergent opinions among parties as to the meaning of a statute may be evidence of ambiguity, Basin Electric Power Co-op. v. State Bd. of Control, 578 P.2d 557, 561 (Wyo.1978). However, the fact that opinions may differ as to a statute's meaning is not conclusive of ambiguity. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Allied-Signal, 813 P.2d at 219.

[T11] Wyo. pertinent part: Stat. § 24-9-101, states, in

Any person whose land has no outlet to, nor connection with a public road, may apply in writing to the board of county commissioners of his county for a private road leading from his premises to some convenient public road.... At the hearing, all parties interested may appear and be heard by the board as to the necessity of the road and all matters pertaining thereto. Upon the hearing of the application, whether the owner or others interested appear or not, if the board finds that the applicant has complied with the law and that the private road is necessary, the board shall appoint three (8) disinterested freeholders and electors of the county, as viewers and appraisers, and shall cause an order to be issued directing them to meet . on the proposed road, and view and locate a private road according to the application therefor, and to assess damages to be sustained thereby .... The viewers shall then proceed to locate and mark out a private road in accordance with the application or in such other manner and location they deem appropriate. ... The viewers shall also at the same time assess the damages sustained by the owner over which the road is to be established and make full and true returns, with a plat of the road to the board of county commissioners.

(Emphasis added.) Wyo. Stat. Ann. § 24-9-108, goes on further to state:

The viewers and appraisers so appointed, or a majority of them, shall make a report to the county commissioners at the next regular session, of the private road so located by them, and also the amount of damages, if any, assessed by them, and the person or persons entitled to such damages, and if the commis- ° sioners are satisfied that such report is just, and after payment by the applicant of all cost of locating such road, and the damages assessed by the viewers, the commissioners shall order such report to be confirmed and declare such road to be a private road, and the same shall be recorded as such.

(Emphasis added.)

[¶12] Applying the plain and ordinary meaning to the language used in Wyo. Stat. Ann. §§ 24-9-101 and 24-9-103, we find no ambiguity. Wyo. Stat. Ann. § 24-9-101 clearly mandates that the viewers and appraisers assess damages at the same time they meet for the purpose of viewing the affected real property and locating the proposed road. Similarly, Wyo. Stat. Ann. § 24-9-103 squarely expresses the legislature's intent that the county commissioners involved would soon thereafter, at the county commissioner's next scheduled session, receive a report of the viewers and appraisers which included, in part, their assessment of damages made at the time of their viewing of the affected property so the county commissioners could determine if that report should be confirmed. No significant delay or later date for the assessment of damages as argued by appellant can be inferred from this language.

[T138] As we recognized in Wagstaff, at 12, and many other previous cases dealing with the establishment of private roads, the language used in Wyo. Stat. Ann. § 24-9-101, discloses the legislature's intent that the procedure under the statute provide, in a local forum, a readily available, economically affordable, and time efficient method to obtain a means of access to property. See also Martens v. Johnson County Bd. of Comm'rs, 954 P.2d 375, 380 (Wyo.1998) and McGuire v. McGuire, 608 P.2d 1278, 1288 (Wyo.1980). Appellant's reading of the statute frustrates this intent.

[T14] Furthermore, under appellant's theory, the amount of damages would be an ever-moving target subject to potential manipulation and continual review. Given appellant's expressed seenario, unless the county commissioners entered a final order on the same day as the damages hearing, the assessment of damages would continue to remain at issue. The legislature could not have intended the damages valuation to change for an undefined period of time or that the final determination of damages be extended depending on when the county commissioners entered their final order or, as is pointed out by this action, when subsequent appeals on the county commissioners' decision are determined by the courts. We have on a number of occasions recognized that the legislature intended that good faith and reason prevail in the establishment of private roads. Wagstaff, at ¶12; Martens, at 380; Dunning v. Ankney, 936 P2d 61, 64-65 (Wyo.1997), Lindt v. Murray, 895 P.2d 459, 462 (Wyo.1995); McGuire, at 1288. We fail to see how an ever-changing damages assessment would promote good faith and reason.

[¶15] The viewers and appraisers met with Mr. Jon R. Gray, president of R.C.R., Inc., on January 15, 1999, the date of their scheduled viewing of the real property affected by the proposed private road. Mr. Gray indicated appellant had some general intent in the future to subdivide its property. Further, Mr. Gray showed the viewers and appraisers the possible location of improvements for an anticipated subdivision and golf course. At that time, however, Mr. Gray indicated that no plans had been submitted to rezone and subdivide appellant's property. The viewers and appraisers also confirmed that a subdivision plat had not been appropriately approved and recorded concerning appellant's property.

[¶16] Because appellant objected to the damages assessment made by the viewers and appraisers, the Board held a hearing on September 27, 1999, wherein appellant was given a full opportunity to present evidence and witnesses concerning damages, including appellant's desire to potentially subdivide its property. In fact, appellant presented the only witnesses at this hearing, calling three witnesses.

[¶17] The first witness, Jonathan Schnal, Planning Economic Development Director for Carbon County, testified that in August of 1998 his office received an imprecise sketch of a proposed rezoning and subdivision plan including both appellant's property as well as a neighboring property. In June of 1999, another drawing was received from appellant, but Mr. Schnal's office did not understand what was being proposed by this second drawing. Mr. Schnal indicated that the rezoning and subdivision application of appellant was on hold and in suspense because the neighboring property had not been removed from the plan or authority for such rezoning and subdivision received from the owner of the neighboring property. Furthermore, appellant had failed to provide additional requested information and had not completed the numerous and substantial steps for rezoning and subdivision. Mr. Scehnal also testified that before rezoning and subdivision could occur 1) reviews would have to be completed by the State of Wyoming, Department of Environmental Quality, and the Wyoming State Engineer, 2) appellant would need to prepare and submit covenants for the subdivision that would need to be approved, and 3) appellant would need to complete, after first being approved by the necessary agencies, numerous improvements to the property. Critically, Mr. Schnal also confirmed that appellant's property remained zoned as ranch, agricultural, and mining property.

[T18] The second witness, Mr. Gray, testified about appellant's plans to subdivide its property but admitted that any formal steps to complete this plan were, at minimum, still in their infancy. Mr. Gray's testimony included his opinion of the estimated value of appellant's property after rezoning and subdivision and his estimated damage calculations with respect to the proposed private road. However, Mr. Gray's opinions were based only on his own general personal experiences as a developer and general information he stated he had received from realtors in the area. As such, Mr. Gray's opinions are somewhat speculative and lacking in foundation.

[¶19] Appellant's last witness, Thomas Grieve, was a real estate broker. Mr. Grieve confirmed that he had experience in the sale of recreational type properties in Carbon County. Nevertheless, he stated he could neither agree nor disagree with the valuations expressed by Mr. Gray concerning appellant's property because he did not have sufficient foundation to do so.

[¶20] Reviewing the record, we conclude that all parties, including appellant, were allowed to fully develop their respective positions on damages at the September 27, 1999 hearing. As we explained above, following the clear and unambiguous language of the applicable statutes, the assessment of damages upon the establishment of a private road must be calculated on the date of the viewing of the affected real property by the appointed viewers and appraisers and the cireumstances that exist at that time. Accordingly, we hold that the district court and the Board did not err when they precluded appellant from presenting any additional evidence concerning damages after the September 27, 1999 hearing.

[¶21] We further note that the position of appellant points out the potential for manipulation by the owner of the affected property if assessment of damages is not limited to the date of viewing by the appointed viewers and appraisers and the circumstances that actually exist at that time. The evidence presented established that appellant did not submit its admittedly very rough sketch concerning rezoning and subdivision of its property and surrounding property until August 18, 1998, just one day before the initial hearing held in this case. Subsequently, appellant did little more to further this application. The fact that the same parties involved in this appeal were previously embroiled in contentious litigation regarding the attempted establishment of an easement across appellant's property also does not support Mr. Gray's statements regarding appellant's long-time desire to rezone and subdivide its property. Appellant took no formal actions at that time to establish its alleged desire to rezone and subdivide its property. Therefore, while Mr. Gray expressed that appellant always desired to rezone and subdivide its property, these statements must be viewed as at least somewhat suspect.

[¶22] Finally, our holding recognizes the well-established principle that evidentiary rulings are within the sound discretion of the administrative agency or trial court including determinations of the adequacy of foundation, relevancy, competency, materiality, and remoteness of the evidence. This court will generally accede to such determinations unless an abuse of discretion is clearly shown. See Garnick v. Teton County Sch. Dist. No. 1, 2002 WY 18, ¶ 13, 39 P.3d 1034, ¶ 13 (Wyo.2002); Wilks v. State, 2002 WY 100, ¶ 19, 49 P.3d 975, ¶ 19 (Wyo.2002); McGhee v. Rork, 978 P.2d 577, 580 (Wyo.1999); Goddard v. Colonel Bozeman's Restaurant, 914 P.2d 1233, 1238 (Wyo.1996). Likewise, we have also stated on a number of cccasions that determinations concerning eredibility of the evidence and weight of the evidence will not be disturbed by this court unless clearly contrary to the overwhelming weight of the evidence. Brierley v. State ex rel. Workers' Safety & Compensation Div., 2002 WY 121, ¶ 16, 52 P.3d 564, ¶ 16 (Wyo.2002); Newman v. State ex rel. Workers' Safety & Compensation Div., 2002 WY 91, ¶ 31, 49 P.3d 163, ¶ 31 (Wyo.2002).

[¶23] In this case, the district court explicitly ordered that an evidentiary hearing be held by the Board "for the sole and narrow issue of determining damages." This hearing afforded appellant due process by requiring the viewers and appraisers to explain their determination of damages and to be subject to eross-examination.

Substantial Evidence Regarding Assessed Damages

[124] In the second two issues, appellant essentially argues that the Board was presented with insufficient evidence to render an appropriate determination on the assessment of damages upon establishment of the private road. In particular, appellant proffers that the viewers and appraisers improperly ignored damages to all of appellant's land and improperly determined the damages to appellant's land within the roadway corridor, both in contravention of those requirements set forth in Lindt v. Murray, 895 P.2d 459 (Wyo.1995).

[¶25] We have previously had occasion to address the issue of establishing damages as it relates to applications for a private road under Wyo. Stat. Aun. §§ 24-9-101 et seq. In Lindt, at 468, we stated:

The Lindts claim the damage award is improper. -It is evident from the proceedings before the Board that the directions given the Board by the district court in its remand order were not observed or understood. Therefore, we remand to the district court with directions that the district court remand to the Board and the Board reassemble the viewers and appraisers, or if necessary a different body of viewers and appraisers, and those viewers and appraisers assess damages as follows: (1) determine the value of the entirety of the Lindts' affected land before the private road was established; then, (2) determine the value of the Lindts' remaining land after the private road is in place; (8) subtract the "after" value from the "before" value, which then equals the damages due the Lindts. Coronado Oil Co. v. Grieves, 642 P.2d 423, 433 (Wyo.1982); and see generally Mettee v. Kemp, 236 Kan. 781, 696 P.2d 947, 949 (1985) (discussing Kansas statute which enumerates factors which may be considered in the "before-after" analysis).

See also Mayland v. Flitner, 2001 WY 69, ¶¶ 32-44, 28 P.3d 838, ¶¶32-44 (Wyo.2001) and Miller v. Bradley, 4 P.3d 882, 888-89 (Wyo.2000).

[T26) Appellant claims that the viewers and appraisers improperly attempted to assess damages, only taking into account the damage to the land within the roadway corridor rather than taking into account the damages to the whole of appellant's property. At the hearing held on February 18, 2001, the viewers and appraisers specifically confirmed that they did consider diminution in the value of appellant's property outside the roadway corridor. However, they viewed appellant's property as range and meadowland and, therefore, determined that the property outside of the roadway would be unaffected in dollar value by the private roadway.

[¶27] The viewers and appraisers correctly stated the "before" and "after" parameters for the assessment of damages expressed in Lindt v. Murray and explained that they applied them in their evaluation. Mr. Espy testified as follows: .

We just felt that it affected that corrido where the road was and not the property further in, because the-when we reviewed it that day, basically it was rangeland and meadowland, and because we inquired and there was no subdivision plat on file. So we didn't feel that the property further in was affected valuewise. We just felt that the corridor was what was affected.

When Mr. Espy was asked to explain his understanding of what Lindt v. Murray required of viewers and appraisers in making a damages assessment, he responded:

Basically, take the value of the property that was affected as a whole, do the damage amount, and take the value of the property again. Basically, the difference is the damages.

Mr. Espy then explained the means by which the viewers and appraisers determined the assessment of damages in this case:

Well, when 'we did it, basically what we came up with was-it was-since basically we viewed it as rangeland and meadowland, we viewed that the property basically outside of the corridor would have been unaffected in dollar value before and after. And it was just because, like [counsel] just asked us, you know, it would have been different, you know, if there would have been, you know, existing plats out there, or houses. But since we just viewed it as rangeland, we didn't think that it made any difference in the value of the property outside the corridor before and after. We just viewed it as the-right down the corridor were the only places that we saw that there were damages.
We considered outside the corridor, but since we basically considered it as range or meadowland, basically it was range or meadowland before the proposed road and it would be range or meadowland after the proposed road. So we didn't view that there was, you know, substantial-or basically hardly any change in value to that property before and after.

[¶28] Upon our independent review of the record, we hold that the viewers and appraisers did consider appellant's property as a whole, but their conclusion was no damage would be caused to that property with the exception of damages sustained by the actual land taken for placement of the private road. As a result, we conclude that the viewers and appraisers complied with applicable law in making this assessment and that substantial evidence existed to support their conclusion. As indicated previously, at the time of viewing, appellant's property was zoned as ranch, agricultural, and mining property.

[T29] Appellant also asserts that the viewers and appraisers erred because they failed to take into consideration the highest and best use of appellant's property. Appellant posits that the viewers and appraisers should have utilized the valuation of its property assuming that it would be rezoned and subdivided. As mentioned previously, Mr. Gray testified about appellant's plans to rezone and subdivide its property and admitted that almost all the formal steps to complete this plan remained unsatisfied. Mr. Schnal testified that the rezoning and subdivision application of appellant was on hold for a multitude of reasons. Appellant's property also remained zoned as ranch, agricultural, and mining property. Therefore, substantial evidence exists to support the assessment of damages of the viewers and appraisers based on appellant's property being used as grazing and meadowland.

[T80] Appellant also contests the manner in which the viewers and appraisers estimated the damages incurred as a result of the placement of the private road. Specifically, appellant argues that no comparable property sales or market values were used by the viewers and appraisers in making their assessment and no factual basis was established for the $1.00 per running foot value used in their calculations.

[¶31] The viewers and appraisers utilized their own expertise and experience in arriving at a value. The appointed viewers and appraisers had previously served in this capacity in other private road and similar proceedings. They had experience in banking, accounting, real estate sales, and ranching. Comparable sales in the same locality were unavailable. Thus, the viewers and appraisers utilized their independent knowledge of a similar transaction regarding the valuation of a private road easement in another location and made adjustments considering the difference in location and other factors. The viewers and appraisers also utilized their general knowledge of land values and the real estate market for similar property in the area. This rational and all-inclusive approach taken by the viewers and appraisers derived a fair and equitable assessment of damages.

[132] We indicated in Carney v. Board of County Comm'rs of Sublette County, 757 P.2d 556, 561 (Wyo.1988), that appointed viewers and appraisers must be disinterested freeholders and electors of the county who are knowledgeable of the local conditions and will apply that knowledge and their common sense in making their determination. This is precisely what the viewers and appraisers did in this case. The record before us makes it apparent that the viewers and appraisers made the appropriate review utilizing the required "before-after" analysis to determine damages. In reviewing appeals . from administrative bodies, we eannot substitute our judgment for that of the agency as long as the decision is supported by substantial evidence. Hence, we hold the Board's finding of damages is supported by substantial evidence.

Due Process.

[133] Finally, appellant asserts that it was not afforded due process because it was not allowed to question the third viewer and appraiser at the February 18, 2001 hearing. While two of the viewers and appraisers testified at this hearing and were subject to substantial cross-examination by appellant, the third viewer and appraiser, Mr. Quealy, due to a serious illness, was unable to attend the hearing.

[T34] Appellant was given a due process hearing to address the submitted report of the viewers and appraisers and utilized this hearing to extensively cross-examine two of the three viewers and appraisers concerning the determination of damages. Testimony elicited from the two viewers and appraisers available for hearing indicated that the three viewers and appraisers collectively determined where to locate the private road and what damages should be assessed. Nothing in the record even remotely reflects that Mr. Quealy dissented or disagreed in any fashion with the decision reached and detailed within the submitted report of the viewers and appraisers. Therefore, it appears that the testimony of Mr. Quealy would have been merely cumulative.

[¶35] Due to the fact that appellant has failed to demonstrate how the testimony of Mr. Quealy would have affected the calculation of damages or the actual award of damages and the record indicates appellant was afforded a fair and just opportunity to appear before the Board to contest the damages determined by the viewers and appraisers, we hold appellant was afforded requisite due process under the applicable statutes. See Martens v. Johnson County Bd. of Comm'rs, 954 P.2d at 380; Carney v. Board of County Comm'rs of Sublette County, at 559-60; and Gold v. Board of County Comm'rs of Teton County, 658 P.2d 690, 695-96 (Wyo.1983).

CONCLUSION

[T86] For those reasons stated above, we affirm the Board's establishment of the private road and assessment of damages in this case.

      . The legislature amended these statutes in 2000 clarifying the procedures to establish a private road. However, the 1999 version of statutes are applicable to this action. Therefore all references will be made to the 1999 version.

      . Appellant filed an Application for Leave to Present Additional Evidence with the district court on July 21, 2000 which was denied. Further, appellant opposed appellees' Amended Motion In Limine and filed its own Motion to Submit Additional Evidence before the Board. Ultimately, the Board granted appellees' Motion In Limine and denied appellant's Motion to Submit Additional Evidence.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    2003 WY 70
    William H. RIEDEL, Appellant (Plaintiff), v. Craig C. ANDERSON and Gail M. Anderson; Office of State Lands and Investments (formerly State Land and Farm Loan Office); Stephen Reynolds in his official capacity as director of the Office of State Lands and Investments; Board of Land Commissioners; and Governor David Freudenthal, Secretary of State Joe Meyer, Auditor Max Maxfield, Treasurer Cynthia Lummis and Superintendent of Public Instruction Trent Blankenship, in their official capacities as members of the Board of Land Commissioners, Appellees (Defendants), and Wyoming Stock Growers Association; Wyoming Wool Growers Association; and Wyoming Farm Bureau Federation, Appellees (Intervenor Defendants). Wyoming Stock Growers Association, and Wyoming Wool Growers Association, Appellants (Intervenor Defendants), v. William H. Riedel, Appellee (Plaintiff), and Office of State Lands and Investments (formerly State Land and Farm Loan Office); Stephen Reynolds in his official capacity as director of the Office of State Lands and Investments; Board of Land Commissioners; and Governor David Freudenthal, Secretary of State Joe Meyer, Auditor Max Maxfield, Treasurer Cynthia Lummis and Superintendent of Public Instruction Trent Blankenship, in their official capacities as members of the Board of Land Commissioners, Appellees (Defendants).
    Nos. 02-60, 02-61.
    Supreme Court of Wyoming.
    June 4, 2003.

      Steven F. Freudenthal of Freudenthal, Salzburg & Bonds, P.C., Cheyenne, Wyoming, Representing William H. Riedel.
    Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; Naney E. Vebhr, Assistant Attorney General; John B. Speight and Amanda Hunkins of Speight, McCue & Associates, P.C., Cheyenne, Wyoming, Representing State of Wyoming. Argument by Ms. Vehr.
    Karen Budd-Falen and Brandon L. Jensen of Budd-Falen Law Offices, P.C., Cheyenne, Wyoming, Representing Wyoming Farm Bureau Federation. Argument by Mr. Jensen.
    Daniel B. Frank of Frank Law Office, Cheyenne, Wyoming; Kermit C. Brown of Brown & Hiser, LLC, Laramie, Wyoming, Representing Wyoming Stock Growers Association and Wyoming Wool Growers Association. Argument by Mr. Brown.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶1] In this appeal the Court is asked to decide the constitutionality of Wyo. Stat. Ann. § 86-5-105(a) and (e), governing the preferential leasing of school lands, and whether the state's school lands are enceum-bered by a trust and, if so, the nature of that trust. Before we examine these weighty issues, however, we must first address an issue of standing.

[¶2] As explained below, we hold that William H. Riedel has standing to challenge the constitutionality of the statute in question; that the school lands are subject to neither a federal trust nor a state constitutional trust, but rather to a legislatively- ~ created statutory trust; and that William H. Riedel has failed to prove that the preferential-right-to-renew statute violates any constitutional or fiduciary restraints on the State's management of the school lands.

ISSUES

[¶3] The parties have filed a total of eight briefs in this matter, in their appellant and appellee capacities, containing approximately twenty-four different formulations of the issues on appeal. Consolidating those various formulations, the appeals raise the following issues for this Court's determination:

1. Whether Riedel has standing to challenge the constitutionality of Wyo. Stat. Ann. § 36-5-105(a) and (e) governing the leasing of school lands.
2. Whether the Wyoming Act of Admission, 26 Stat. 222, Ch. 664 (July 10, 1890), the Wyoming Constitution, or Wyoming statutes establish a trust with respect to the lands which the United States gave to Wyoming for the support of the common schools.
. 8. If the state school lands are in fact held in trust, whether the statutory right of a previous lessee to renew a lease of state school lands violates the State's management duties with respect to those lands.

FACTS

[¶4] Craig C. and Gail M. Anderson held an agricultural lease to approximately 640 acres of state-owned land in Laramie County. The leased land is Section 86 of Township 16 North, Range 63 West of the 6th P.M., and as such is part of the land granted to the State by Congress "for the support of the common schools" upon Wyoming's admission to the Union in 1890. Wyoming Act of Admission, 26 Stat. 664, §§ 4, 5 (Reprinted in Wyo. Stat. Ann. Vol. 1).

[T5] The term of Andersons' lease was to expire at the end of December 1997. As authorized by statute, they submitted a renewal lease application to the Office of State Lands and Investments, the statutory administrator of the land, proposing an annual lease rate of $4,586.40. There were two competing lease offers for the same parcel; one proposed a lower rate than the Andersons but William H. Riedel, the Andersons neighbor, proposed to pay an annual rate of $6,000 for the same section.

[¶6] Wyo. Stat. Ann. § 86-5-105 provides that the holder of an expiring lease shall have a preferential right to renew that lease if the holder meets any competing bid for the subject parcel. Andersons met the Riedel bid of $6,000 per year and, on January 16, 1998, the interim director of the Office of State Lands and Investments awarded the lease to the Andersons for a ten-year term at $6,000 per year.

[¶7] Riedel filed an administrative appeal of the interim director's award to the Andersons. The Board of Land Commissioners conducted a hearing and upheld the interim director's decision by letter dated May 6, 1998. Riedel then brought a petition for judicial review of the Board's decision in the district court, challenging the constitutionality of the preference statute. On certification to this Court, the petition was dismissed on the grounds that the Court lacked jurisdiction to review the constitutionality of a statute upon petition for judicial review of an administrative action. In re Conflicting Lease Application for Lease No. 972 P.2d 586 (Wyo.1999).

[T8] Riedel then instituted a declaratory judgment case in June 1999 against the Board of Land Commissioners and its members, challenging the constitutionality of Wyo. Stat. Ann. §§ 86-5-101 and 36-5-105, the preferential right-to-renew statute. On July 10, 2000, the district court granted a motion to intervene filed jointly by the Wyoming Stock Growers Association and the Wyoming Wool Growers Association ("the Asso-clations") and a separate motion to intervene filed by the Wyoming Farm Bureau Federation ("the Federation"). °

[T9] Before trial, the district court asked the parties to brief the legal issue of whether the conveyance of the school lands to the State of Wyoming by the United States imposed a trust on those lands. After briefing, the district court on October 29, 2001, issued an order concluding that the lands were indeed encumbered by a trust, imposing on the State a fiduciary duty to manage the lands exclusively for the beneficiaries, the State's common schools.

[¶10] Following the district court's trust ruling, the matter was tried to the court in November 2001 on the issue of whether the right-to-renew statute conflicts with the State's trust duties and is therefore unconstitutional. Riedel's case consisted of testimony by himself; Jim Whalen, Assistant Director of the Department of State Lands and Investments; and Dr. Mark Sunderman, a professor at the University of Wyoming and author of several publications on the state school lands. After plaintiff rested, the district court granted the intervenor Associations' motion to dismiss on the grounds that Riedel failed to present adequate evidence that the preferential right to renew violates the State's fiduciary responsibilities. Riedel timely appealed the dismissal of his complaint (Case No. 02-60), and the Associations cross-appealed the trial court's order that the school lands are held in trust (Case No. 02-61). For purposes of this consolidated appeal, Riedel was designated the appellant, while the Associations, the Federation and the State were designated appellees.

Historical Background

[T11] Beginning with the admission of Ohio to the United States in 1803, Congress granted to almost all newly admitted states sections of public land for the support of schools. See, eg., Ohio Enabling Act, 2 Stat. 178, 175 (1802); Wade R. Budge, Changing the Focus: Managing State Trust Lands in the Twenty-First Century, 19 J. Land, Resources, & Envtl. L. 223, 226 (1999). The specific language of the grants varied somewhat among the early states' enabling laws, but generally was "for the use of schools" with no mention of trusts, fiduciary obligations, or restrictions on the sale, lease or other use of the lands. See, Sally K. Fairfax, et al., The School Trust Lands: A Fresh Look at Conventional Wisdom, 22 Envtl. L. 797, 810 (1992). Substantially the same pattern was used for land grants in the admission of Louisiana, Indiana, Mississippi, IIli-nois, Alabama, Missouri and Arkansas. Seq, Budge, supra, at 226. Courts have consistently ruled that Congress had not encumbered these early land grants with a common law trust, but had merely entered into a "solemn agreement" with the states that the land would be used as intended. Seq, eg., Branson Sch. Dist. Re-82 v. Romer, 161 F.3d 619, 633 (10th Cir.1998) (citing Alabama v. Schmidt, 282 U.S. 168, 178-74, 34 S.Ct. 801, 58 L.Ed. 555 (1914), and Cooper v. Roberts, 59 U.S. (18 How.) 178, 181-82, 15 L.Ed. 838 (1855)).

[¶12] However, beginning with Michigan in 1887, a pattern evolved by which the states through their own constitutions imposed restrictions on the use of the land or its sale proceeds. For example, the Michigan Constitution included a provision requiring that the proceeds from the sale of school lands be put into a permanent fund, a pattern that almost all subsequently-admitted states followed in accepting the terms of their enabling acts. Budge, supra, at 227.

[¶13] With the admission of Colorado in 1876, Congress began to include in the states' enabling acts some of the same restrictions on the use of the school lands that prior states had constitutionally imposed upon themselves. The Colorado Enabling Act, Ch. 139, § 14, 18 Stat. 474, 476 (1875), provided "Itlhat the two sections of land in each township herein granted for the support of common schools shall be disposed of only at public sale and at a price not less than two dollars and fifty cents per acre, the proceeds to constitute a permanent school-fund, the interest of which to be expended in the support of the common schools.": See also Branson Sch. Dist., 161 F.3d at 684.

[¶14] The Wyoming Act of Admission granted sections 16 and 86 of every township to the state "for support of common schools" and further provided: '

All lands herein granted for educational purposes shall be disposed of only at public sale, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislature shall prescribe, be leased for mineral, grazing, agricultural, or other purposes, provided that the term of agricultural and grazing leases shall not exceed 10 years; and such land shall not be subject to preemption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.

26 Stat. 222, Ch. 664, § 5. These provisions are nearly identical to those of the Colorado Enabling Act, except that the Wyoming Act of Admission states no minimum purchase price for the school lands.

[¶15] The most restrictive of the state enabling acts was the Arizona-New Mexico Enabling Act at the end of the accession period in 1912. That act stated expressly that the lands granted to the state are held "in trust"; provided that the products and proceeds of the lands "shall be subject to the same trusts as the lands"; prescribed the manner of advertising, selling and leaging the lands; directed the method of maintaining and investing the permanent fund; voided any transaction not in conformity with the enabling act; and directed the Attorney General of the United States to enforee all provisions related to the trust lands. Arizona, New Mexico Enabling Act, 36 Stat. 557, 561-568 (June 20, 1910). In Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128 (1919), and Lassen v. Arizona Highway Department, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967), the Supreme Court ruled that the Congress had the power to and did in fact convey the school lands in those states subject to an express trust, such that trust funds could not be used to advertise the states resources nor could the state obtain highway easements over trust lands without compensating the trust.

[¶16] It is clear that Wyoming's admission, both chronologically and conceptually, falls somewhere between Congress' laissez faire approach to the states admitted in the early nineteenth century and the closely regulated express trust conveyances to New Mexico and Arizona in 1912. The Wyoming Constitution, adopted before the passage of the Act of Admission, addresses the federally granted lands in several of its provisions:

Art. 7, § 2. School revenues:

The following are declared to be perpetual funds for school purposes, of which the annual income only can be appropriated, to-wit: . all moneys arising from the sale or lease of sections number sixteen and thirty-six in each township in the state, and the land selected or that may be selected in lieu thereof; ...

Art. 7, § 6. State to keep school funds; investment:

All funds belonging to the state for pub-lie school purposes, the interest and income of which only are to be used, shall be deemed trust funds in the care of the state, which shall keep them for the exclusive benefit of the public schools, and shall make good any losses that may in any manner occur, so that the same shall remain forever inviolate and undiminished ....

Art. 7, § 7. Application of school funds:

The income arising from the funds mentioned in the preceding section, together with all the rents of the unsold school lands and such other means as the legislature may provide, shall be exclusively applied to the support of free schools in every county in the state.

Art. 18, § 1. Acceptance of lands from United States; sale of such lands:

The State of Wyoming hereby agrees to accept the grants of lands heretofore made, or that may hereafter be made by the United States to the state, for educational purposes ... with the conditions and limitations that may be imposed by the act or acts of congress, making such grants or donations. Such lands shall be disposed of only at public auction to the highest responsible bidder, after having been duly appraised by the land commissioners, at not less than three-fourths the appraised value thereof, and for not less than $10 per acre; ...

Art. 18, § 2. Application of proceeds of sale or rental:

The proceeds from the sale and rental of all lands and other property donated, granted or received, or that may hereafter be donated, granted or received, from the United States or any other source, shall be inviolably appropriated and applied to the specific purposes specified in the original grant or gifts.

Art. 18, § 8. Board of land commissioners:

The governor, secretary of state, state treasurer, state auditor and superintendent of public instruction shall constitute a board of land commissioners, which under direction of the legislature as limited by this constitution, shall have direction, control, leasing and disposal of lands of the state granted, or which may be hereafter granted for the support and benefit of public schools, subject to the further limitations that the sale of all lands shall be at public auction, after such delay (not less than the time fixed by congress) in portions at proper intervals of time, and at such minimum prices (not less than the minimum fixed by congress) as to realize the largest possible proceeds....

1891 Wyo. Sess. Laws.

[¶17] After the admission of Colorado in 1876, the next states admitted were North Dakota, South Dakota, Montana and Washington in 1889. The delegates to Wyoming's constitutional convention in September 1889 borrowed substantial sections of Wyoming's Constitution from these other states, completing the draft in less than one month. Robert B. Keiter & Tim Neweomb, The Wyoming State Constitution: A Reference Guide 1, 4 (1998). The Colorado Constitution at Art. IX, § 10 (1876), the Washington Constitution at Art. XVI, § 1 (1889), the Idaho Constitution at Art. IX, § 8 (1889), and the South Dakota Constitution at Art. VIII, § 7 (1889) each expressly provided that the states' school lands were "held in trust." After Wyoming's admission, the Oklahoma Constitution at Art. XI, § 1 (1907) likewise declared that the lands and proceeds were "a sacred trust." Wyoming's Constitution is significant by contrast in not following these contemporary examples but following other states that declare a trust in the sale proceeds but not in the lands themselves. Seq, e.g., Mich. Const. Art. X, § 2 (1836).

DISCUSSION

I. Plaintiff's Standing

The State and the Wyoming Farm Bureau Federation assert that Riedel does not have standing to assert the unconstitutionality of the state's preferential right of renewal statute. We stated recently that "Isltanding is a legal concept designed to determine whether a party is sufficiently affected to insure that the court is presented with a justicilable controversy." Jolley v. State Loan and Inv. Bd., 2002 WY 7, ¶ 6, 38 P.3d 1073, ¶ 6 (Wyo.2002).

"The doctrine of standing is a jurisprudential rule of jurisdictional magnitude. At its most elementary level, the standing doctrine holds that a decision-making body should refrain from considering issues in which the litigants have little or no interest in vigorously advocating. Accordingly, the doctrine of standing focuses upon whether a litigant is properly situated to assert an issue for judicial or quasi-judicial determination. A litigant is said to have standing when he has a 'personal stake in the outcome of the controversy.' This personal stake requirement has been described in Wyoming as a 'tangible interest' at stake. The tangible interest requirement guarantees that a litigant is sufficiently interested in a ease to present a justiciable controverSy-”

Id. (quoting Roe v. Board of County Commissioners, Campbell County, 997 P.2d 1021, 1022-23 (Wyo.2000)). Jolley involved a newspaper publisher's petition for review under the Wyoming Administrative Procedure Act to challenge the sufficiency of public meetings conducted by the State Loan and Investment Board. We concluded that the effect of the Board's decision on petitioner, whose interest in the meetings was as a reporter and citizen, was speculative and did not render him "an aggrieved or adversely affected person" under the Administrative Procedure Act and that he therefore had no standing to appeal the Board's scheduling decision. Id. at 18.

[119] We generally do not relax the standing requirement in the context of an action under the Uniform Declaratory Judgments Act, but require:

1. The parties must have existing and genuine, as distinguished from theoretical, rights or interests.
2. The controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion.
3. It must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or wanting these qualities to be of such great and overriding public moment as to constitute the legal equivalent of all of them.
4. The proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues.

State v. Pacificorp, 872 P.2d 1163, 1168 (Wyo.1994).

[T20] The gravamen of Riedel's constitutional challenge is that the preferential renewal scheme discourages competitive bidding for school lands, limits the funds available to the permanent school fund, and therefore violates the State's fiduciary obligation to maximize revenues from the school lands for its beneficiaries. The State and Federation correctly point out that under the statute the incumbent lessee must meet the highest competing bid in order to exercise the renewal preference. They further argue that any alleged diminution in revenue would constitute injury to the State's common schools and its students, not to Riedel personally, so that there is no causal connection between the alleged unconstitutionality and any injury to Riedel. See Bramson Sch. Dist., 161 F.3d at 630-81.

[¶21] However, although Riedel may not have clearly articulated a concrete and personal injury, it is implicit in the relief he seeks, namely, that the Board be enjoined from enforcing the preferential renewal statute and that they be ordered to award the lease to him. The statute has clearly worked to deprive Riedel of a lease to the subject school lands, an injury much more direct and personal to him than that at stake in Jolley.

[¶22] Moreover, we have recognized a relaxed standing requirement in matters of great public interest or importance. We reviewed in detail the development of that doe-trine in Jolley, 19. As recited there, we have applied the great public interest doctrine when a constitutional question is presented or where there is an issue concerning apportionment of state revenues among governmental entities. We have invoked the doe-trine in cases involving the constitutionality of school financing, Washakie Cty. Sch. Dist. No. One v. Herschler, 606 P.2d 310, 317 (Wyo.1980); the tax exempt status of a public hospital, Memorial Hosp. of Laramie Cty. v. Dep't of Revenue and Taxation, 770 P.2d 223 (Wyo.1989); the constitutionality of the Wyoming Professional Review Panel Act, State ex rel. Wyo. Ass'n of Consulting Eng'rs and Land Surveyors v. Sullivan, 798 P.2d 826, 828-29 (Wyo.1990); the entitlement of a school district to interest on school district funds held by the county treasurer, Bd. of Cty. Comm'rs v. Laramie Cty. Sch. Dist. No. One, 884 P.2d 946, 949-50 (Wyo.1994); and the constitutional scope of the governor's veto power, Management Council of the Wyo. Legislature v. Geringer, 953 P.2d 839, 841-42 (Wyo.1998).

[¶23] We conclude that the constitutional challenge to the statute at issue here requires that we decide the status of the state's obligations with regard to the large inventory of state school lands. This is a matter of public importance comparable to the significant issues in the above cases that will affect not only the preferential right to renew statute but could inform all of the Board's management decisions with regard to those lands while potentially affecting a major. source of school funding. For these reasons it is appropriate that we invoke the great public interest exception to the standing requirement in this case.

II. The Status of School Lands in Wyoming

[T24] Turning to the main issue, we must first decide whether the Wyoming Act of Admission creates a trust obligation with regard to the State's ownership of those lands. As recited above, each state's admission to the Union was a unique situation, negotiated between Congress and the respective territories. There was an evolution in the various states' enabling acts passed by Congress, as well as an evolution in the terms of the states' acceptance of admission.

[¶25] At one extreme, the United States Supreme Court has ruled that the relatively unrestricted grants to Michigan and Alabama did not create a federal trust as to the school lands but merely a "solemn agreement" that the lands would be used for the purposes recited. Papasan v. Allain, 478 U.S. 265, 289-90 n. 18, 106 S.Ct. 2982, 2947 n. 18, 92 L.Ed.2d 209 (1986); see also Schmidt, 232 U.S. at 173-74, 34 S.Ct. at 802; Cooper, 59 U.S. (18 How.) at 181-82. At the other extreme, the Supreme Court has ruled that the more restricted land grants to New Mexico and Arizona imposed fiduciary obligations, equivalent to a federally-imposed trust, to manage the lands for the exclusive benefit of the common schools. Lassen, 385 U.S. at 467-68, 87 S.Ct. at 588-89; Ervien, 251 U.S. at 48, 40 S.Ct. at 76.

[T26] The United States Court of Appeals for the 10th Circuit has noted that "the question of whether a statehood statute creates a federal trust requires a case-specific analysis of the particular state's enabling statute because the history of each state's admission to the Union is unique." Branson Sch. Dist., 161 F.8d at 6383. Observing that the Colorado Enabling Act falls somewhere in between-in both chronology and specificity-the Michigan-Alabama model and the Arizona-New Mexico model, the court ruled that the Colorado act contains a sufficient enumeration of duties to indicate Congress's intent to create a fiduciary relationship between the state and its common schools. Id. at 638-34. The court also found significant the fact that the Colorado Constitution, adopted immediately after the Enabling Act and therefore a contemporaneous expression of the parties' intent, clearly indicated that the land grants "shall be ... held in trust subject to disposal, for the use and benefit of the respective objects for which said grants of land were made. Id. at 634-85.

[¶27] Two years later, the 10th Cireuit Court of Appeals reviewed the 1896 Utah Enabling Act's grant of land for a miners' hospital for disabled miners. Dist 22 United Mine Workers v. Utah, 229 F.3d 982 (10th Cir.2000). Noting Branson's requirement of a case-specific review, the court ruled that Utah's enabling act did not create a trust because the Utah legislature was authorized to dispose of the lands "in such manner as the legislature may provide," and "this express latitude given to the State of Utah militates against the creation of a trust." Id. at 990. The 10th Circuit's ruling was in accord with Andrus v. Utah, 446 U.S. 500, 507, 100 S.Ct. 1803, 1807, 64 L.Ed.2d 458 (1980), which held that the Utah Enabling Act created a "solemn agreement" by the state to use its school lands as intended by the federal government, but did not create a trust.

[¶28] Wyoming's enabling act is similar to Colorado's but differs in two significant respects. The Wyoming act does not specify a minimum sales price for its school lands and expressly. authorizes the leasing of the lands in any manner the state legislature provides. Colo. Enabling Act, § 14, 18 Stat. at 476; Wyo. Act of Admission, § 5, 26 Stat. at 22-28. Wyoming's enabling legislation is therefore more in accord with that of Utah, and we therefore conclude that the latitude given the Wyoming legislature likewise militates against the creation of an express trust by the Wyoming Act of Admission.

[¶29] Turning to the question of whether the Wyoming Constitution creates an express trust of the school lands, we conclude that it does not. The parties cite authority from

several states for the proposition that the state constitution, either alone or in concert with the states' enabling acts, creates an express trust in accepting the land grants from Congress. Each of those state constitutions is distinguishable from Wyoming's, however. The Colorado Constitution, as noted by the Branson court, directs its legislature to "provide by law that the several grants of land ... shall be ... carefully preserved and held in trust ...." 1876 Colo. Const., Art. IX, § 10 (amended 1996); Bran-son Sch. Dist., 161 F.3d at 635. The South Dakota Constitution likewise provides that "all lands and the proceeds" from such lands are considered perpetual funds, S. Dak. Const., Art. VIII, § 7, which the South Dakota Supreme Court interpreted as creating an express trust in Kanaly v. State, 868 N.W.2d 819, 823 (S.D.1985). The Oklahoma Constitution recites that that state accepts all grants of land "as a sacred trust." Okla. Const., Art. XI, § 1; see also §§ 2, 5. The Utah Constitution states that the lands "shall be held in trust for the people, ... for the respective purposes for which they have been or may be granted, donated, devised or otherwise acquired. Utah Const., Art. XX, § 1.

[¶30] Although Wyoming's Constitution contains a declaration of trust as to the proceeds from the sale of the lands, Wyo. Const. Art. 7, §§ 2, 6, there is no similar declaration as to the land itself as in the states listed above. The delegates would have had available to them the specific trust language of constitutions such as Colorado's, Oklahoma's, Idaho's and Washington's. It is also significant to note in this regard that the Wyoming Constitution, drafted in September 1889 and adopted by vote of the territorial citizenry in November 1889, was available for review by Congress when it passed the Wyoming Act of Admission in July of 1890. Just as it was significant to the Branson court that Colorado, immediately after passage of the Colorado Enabling Act, declared in its constitution that the lands were held in trust, so it is significant that Congress passed the Wyoming Enabling Act knowing that the new Wyoming Constitution limited the declaration of trust to proceeds from the sale of the lands.

[¶ 31] The State in its brief cites National Parks & Cons. Ass'n v. Bd. of State Lands, 869 P.2d 909 (Utah 1998), for the proposition that it is irrational to distinguish between the lands and the proceeds of those lands as the corpus of a constitutionally declared trust. However, although such a distinction is not an uncommon one in state constitutions, Utah is the only state to so rule and, in fact, the only state to address the issue. According to one commentator, "the issue of whether the school lands are a part of the same trust that applies to the permanent fund remains an open question that a state legislature could answer." Sean E. O'Day, School Trust Lands: The Land Manager's Dilemma Between Educational Funding and Environmental Conservation, A Hobson's Choice?, 8 N.Y.U. Envtl. L.J. 163, 210 (1999); see also, Fairfax, supra, at 826.

[¶32] A summary of the Wyoming Constitution's provisions regarding the state school lands shows that the lands are accepted for educational purposes; that the board of land commissioners is established with authority to manage, sell or lease the lands as directed by the legislature; that the proceeds from the sale and lease of the lands shall constitute a permanent trust fund, with only the income used for educational purposes; that the lands may be leased on whatever terms the legislature shall prescribe; and that the lands may be sold only at public auction for at least three-quarters of their appraised value. We conclude that the express latitude given the legislature, combined with the limitation of the express trust- language to the proceeds from the lands, militate against a constitutionally-created trust in the school lands by the terms of the Wyoming Constitution.

[¶33] Although neither the Wyoming Act of Admission nor the Wyoming Constitution encumber the school land grants with a trust, the legislature's wide management authority over those lands includes the authority to statutorily declare a trust. Wyo. Stat. Ann. § 86-5-101, et seq. (LexisNexis 2001) (regulating leases of school land grants). In 1996 the legislature commissioned a study of the school lands, see, "Final Report and Recommendations of the Select Committee on State

Trust Lands," (Wyo.Leg.Serv.Office, Nov. 15, 1996), which resulted in substantial amendment of the leasing statutes during the 1997 session. While the state land grants may have heretofore been informally referred to as "trust lands," the 1997 act included the following statement of principles:

(a) The legislature endorses the following statements of principle and directs that the board of land commissioners and the director of state lands abide by these statements in the implementation of these statutes:
(i) The state land trust, consisting of trust lands, trust minerals and permanent land funds shall be managed under a total asset management policy;
ii) The state land trust is intergenera-tional. Therefore, the focus is on protecting the corpus for the long term;
(ii) Trust land should remain a substantial, integral component of the state land trust portfolio. There is no mandate to sell any trust asset to maximize revenue in the short term;
(iv) All leases of trust land shall assure a return of at least fair market value considering the management practices and risk assumed by the lessee when determining fair market value;
(v) Investment policies shall ensure that the earning power of the permanent land fund is not reduced from the effect of inflation.

1997 Wyo. Sess. Laws ch. 200, § 3. Section § 36-5-105, amended in the same 1997 Act, directs that the state school lands shall be leased "in such manner and to such parties as shall inure to the greatest benefit to the state land trust beneficiaries." Id., § 1.

[¶34] The use of such explicit trust language in the declaration of principles and the statute clearly indicates the legislature's intention that the land grant be subject to a trust and administered according to the prescribed guidelines. The Association correctly points out in its brief that the referenced language first appeifred in 1997, apparently for the proposition that the right to renew takes historical precedence over a later statutory trust. However, because we find it is within the legislature's authority to declare a trust in the school lands, that authority could be exercised at any time, and the chronology of that exercise is not significant in this case, nor is it necessary for us to decide if a statutory trust existed before 1997. It is sufficient to note that the legislature has now declared a trust. It is also not necessary for us to decide whether this Court's use of trust language in Frolander v. Ilsley, 72 Wyo. 342, 264 P.2d 790 (1953), decided the issue or was dicta that merely used a colloquial expression to describe the school lands.

III. Constitutionality of Lease Preference

[135] Given our conclusion that the school lands in Wyoming are subject to a statutory trust, we must address the parameters of that fiduciary obligation. Riedel and the State, citing Lassen and Ervien, argue that there is a fiduciary obligation to maximize revenues from the trust lands, and Riedel argues that the right-to-renew statute depresses the market for leasing school lands. Those cases, however, were interpreting the 1912 Arizona-New Mexico Enabling Act, which does include a express federal trust and is very different from the Wyoming Act of Admission. The Branson decision informs us that, even if there is a federal trust, it does not necessarily carry with it a common law duty to maximize revenue from the trust corpus and the state may define the fiduciary duty within the bounds of the federal trust. Branson Sch. Dist., 161 F.3d at 638-39. Since we hold that the land trust in Wyoming is a creature of statute, we agree with the Association that the statutes incorporate all of the trustee's duties, and that such arrangement is authorized by the Act of Admission and the Constitution's express authorization to lease the lands "under such regulations as the legislature shall prescribe." It is not necessary, and indeed would be inappropriate, to look to other states or common law trust principles to define the state's fiduciary obligations with regard to the school land's statutory trust.

[¥86] The current version of the preferential right to renew was enacted in 1997 in the same legislative act as the declaration of trust. We construe statutes in accord with the ordinary and obvious meaning of their language to determine the legislature's intent. Thunderbasin Land & Livestock v. Laramie Cty., 5 P.8d 774, 779 (Wyo.2000). If the language is sufficiently clear, we need not resort to other rules of construction. Id.

[¶87] We will discuss each of Rie-del's constitutional objections. He first claims that the preferential right to renew "violates Wyoming's fiduciary trust obligation to receive fair market value for agricultural leases of the common school land grants." He distinguishes the earlier cases in which we upheld similar preference laws on the grounds that those cases turned on statutory interpretation and refers us instead to Lassen v. Arizona ex rel. Arizona Highway Dep't. As discussed above, however, at issue in Lassen was the uniquely specific Arizona-New Mexico Enabling Act. And since we conclude that any trust in Wyoming is a creation of Wyoming statute, that trust does not carry with it the duty to maximize revenues found by the Lassen court. Plaintiffs first constitutional challenge therefore fails.

[138] Riedel next argues that the preferential right-to-renew is tantamount to an absolute right of renewal, violating the enabling act's ten-year limit on leasing, and that in depressing lease values it grants privileges to incumbent lease holders over the trust beneficiaries. Riedel's arguments in this regard are speculative, as was his statistical evidence at trial in which he attempted to show that the vast majority of leases are renewed by the incumbent lease holders. He does not nearly approach his heavy burden to "clearly and exactly show the unconstitutionality beyond a reasonable doubt." Reiter v. State, 36 P.3d 586, 589 (Wyo.2001). We have ruled that prior preferential right to renew leases are conditional, not absolute. Frolander, 72 Wyo. at 364-65, 264 P.2d at 799; Kerrigan v. Miller, 53 Wyo. 441, 448, 84 P.2d 724, 726 (1988); Mercer v. Thorley, 48 Wyo. 141, 150, 48 P.2d 692, 695 (1985). The current statutory right is even more conditional: the incumbent must re-apply every ten years, must have met prior lease payments, must otherwise maintain eligibility, and most importantly must match any higher bid offered for the same land. The State may still decide to sell the land or not to lease it at all; if it does lease, it does so at the highest rate bid by anyone. We therefore find that the conditional right to renew does not violate the enabling act's prohibition of leases longer than ten years.

[¥39] Riedel next argues that the preferential right-to-renew statute violates the requirement that the school lands be disposed of by public auction, as required by Wyo. Const, Art. 18, § 1. We agree with the Association and the State that the relevant constitutional provision, requiring that "disposal" of the lands be at public auction, is clear and unambiguous. To "dispose of" means "to alienate, relinquish, part with, or get rid of." Black's Law Dictionary 471 (6th ed.1990). As with statutes, we interpret the Constitution according to its plain and obvious meaning. Amoco Production Co. v. Hakala, 644 P.2d 785, 789 (Wyo.1982). The framers clearly did not consider a lease to be a sale when they granted to the Board of Land Commissioners the "direction, control, leasing and disposal" of the state lands. Wyo. Const., Art. 18, § 8. We held in Ross v. Trustees of Univ. of Wyo., 30 Wyo. 4883, 448, 222 P. 3, 7 (1924), that the granting of a right-of-way across state lands is not a "disposal" as contemplated by the Constitution. We conclude likewise that a lease of state lands as authorized by the Constitution is not a disposal of those lands and need not be accomplished by public auction.

[T40] Riedel contends that the preferential right to renew violates the constitutional prohibition on "granting any privileges to persons who may have settled upon any of the school lands ..., by which the amount to be derived by the sale or other disposition of such lands, shall be diminished directly or indirectly." Wyo. Const., Art. 18, § 5. This argument lacks cogency: the lessees of today are not the original settlers contemplated by the Constitution and, as noted above, the leasing of the lands is not a "sale or other disposition" of the school lands.

[T41] Riedel's final constitutional argument is the one addressed by most of his evidence at trial. Assuming the existence of a trust, and assuming the trust to be governed by common law standards rather than the legislature, he contends that the right to renew depresses the value of agricultural leases and therefore violates the trustees duty to maximize révenue from the trust lands. However, we have concluded that the land trust in Wyoming is created by the legislature and hence the management of that trust and, as specifically authorized by the Constitution, the leasing of the trust lands, are governed by the statutes and not by common law trust principles. Huckfeldt v. State Bd. of Sch. Land Comm'rs, 20 Wyo. 162, 122 P. 94 (Wyo.1912). The legislature will not be presumed to have created the trust and violated it at the same time.

[¶142] The trial court granted judgment as a matter of law at the close of plaintiff's case. A review of the record shows that judgment was properly granted. Riedel sought to prove through expert testimony that incumbent lease holders in Wyoming almost always prevail when there is a competing lease application, that those leases have a positive "permit value" when agricultural properties are marketed, and that other states realize more for their leases because they have a variable rather than a single statewide minimum lease rate. Much of his evidence was of a historical nature, and addressed past management practices of the Board without tie-in to the current statute or the lease at issue. To conclude from that evidence that the state is not realizing sufficient income from its trust lands, rising to the level of a breach of fiduciary duty, would be sheer speculation and falls far short of Riedel's considerable burden to prove the statute's unconstitutionality. While there may have been problems with earlier versions of the preferential right to renew statute, the current version requires that the renewing lease holder match any competing bid and therefore approximates market value. Riedel's evidence that many private agricultural sales include a premium for the seller's lease permits, in addition to being substantially impeached, does not necessarily indicate that the lease was undervalued when granted by the Board. It is just as likely that the lease premium recognizes the seller's efforts in obtaining the lease or improvements made to the leasehold.

CONCLUSION

[¶48] The lands granted to the State of Wyoming by Congress upon the State's admission were not conveyed subject to a federal trust, nor did the people of Wyoming constitutionally impose a trust on those lands. However, the Legislature has appropriately exercised its authority under the Act of Admission and Constitution to declare those lands subject to a trust. The legislature, concurrently with the establishment of that trust, provided that incumbent lease holders of the state lands would have a preference in renewing their lease. Riedel failed to prove that such preference violates any fiduciary or constitutional constraints on the State's management of the trust lands, and the district court's grant of defendants' motion to dismiss is therefore affirmed.

      . The exceptions were Maine and West Virginia, which were created from pre-existing states rather than federal land, and Texas and Hawaii, which formerly were independent nations and not created from federal territory. Budge, supra, at 226.

      . The maximum lease term was amended from five to ten years in 1934. 48 Stat. 350-351 (February 15, 1934); 1935 Wyo. Sess. Laws, ch. 34.


author: HILL, Chief Justice.

text:
    2003 WY 71
    James Edward PEARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-163.
    Supreme Court of Wyoming.
    June 4, 2003.
    Rehearing Denied July 1, 2003.

      Pro se, Representing Appellant.
    Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tib-betts; Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶1] Appellant, James Edward Pearson (Pearson), contends that the district court abused its discretion in denying his motion for new trial That motion was based on an asserted violation of Wyoming's wire tap law. We will hold that Pearson's motion was not timely and that the district court should have dismissed the motion for that reason. Accordingly, we will dismiss the appeal as well.

ISSUES

[¶2] Pearson calls our attention to these issues:

1. Did the district court abuse its discretion in not answering [sic ] [ruling on] the Motion For New Trial within the time limitations and no continuance was filed[d] by an Order from the District Court.
2. Did the District Court abuse its discretion in not Ordering a Hearing pursuant to Rule 38(c)[.] A motion for new trial based on the ground of newly discovered evidence shall be heard and determined. The Defendant was not afforded a hearing, and the defendant could not present the New Evidence to support his motion for new trial.
3. Did the District Court abuse its disceretion in the Order to dismiss the Motion For New trial on Newly Discovered Evidence without giving any reasons for the Court's determination to dismiss without a hearing.

The State restructured the issues as follows:

I. Does this Court have jurisdiction to consider [Pearson's] appeal?
II. Did the district court err in denying [Pearson's] motion for new trial?

FACTS

[¶3] Pearson was convicted of delivery of a controlled substance, methamphetamine. Judgment and sentence were entered on August 283, 1999. On October 23, 2000, his appeal of that conviction was affirmed. Pearson v. State, 12 P.3d 686 (Wyo.2000) (rehearing denied Novémber 21, 2000). On April 15, 2002, Pearson filed a motion for new trial in the district court premised on the theory that he had newly discovered evidence that would result in the reversal of his conviction. With respect to a motion for new trial, W.R.Cr.P. 33 provides this guidance: C

Rule 83. New Trial.

(a) In general. The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury, the court, on motion of a defendant for a new trial, may vacate the judgment if entered, take additional testimony, and direct the entry of a new judgment.
(b) Any grounds except newly discovered evidence. A motion for a new trial based on any grounds, except newly discovered evidence, shall be made within 15 days after verdict or finding of guilty or within such further time as the court may fix during the 15 day period; but the time for filing of motion may not be extended to a day more than 30 days from the date the verdict or finding of guilty is returned. The motion shall be determined and a dispositive order entered within 15 days after the motion is filed and if not so entered shall be deemed denied, unless within that period the determination shall be continued by order of the court, but no continuance shall extend the time to a day more than 60 days from the date the verdict or finding of guilty is returned.
(c) Newly discovered evidence. A motion for a new trial based on the grounds of newly discovered evidence may be made only before or within two years after final judgment but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for new trial based on the ground of newly discovered evidence shall be heard and determined and a dispositive order entered within 30 days after the motion is filed unless, within that time, the determination is continued by order of the court, but no continuance shall extend the time to a day more than 60 days from the date that the original motion was filed. When disposition of a motion for new trial based on newly discovered evidence is made without hearing, the order shall include a statement of the reason for determination without hearing. [Emphasis added.]

[¶4] As the first step in our seru-tiny of Pearson's issues, we must determine whether his assertion that he had new evidence is viable. Merely captioning his motion as a motion premised on newly discovered evidence does not suffice. Pearson's premise is that the evidence used to convict him was obtained under a communications interception (wire tap) statute that had expired. Wyo. ~ Stat. Ann. §§ 7-3-601 through-611 (Lexis 1999). When that statute was enacted in 1985, the Legislature provided, in what amounts to a footnote that did not carry through -to the printed statutes, that it was to expire on July 1, 1989. 1985 Wyo. Sess. Laws ch. 121, see. 4. Those statutes were treated by the Legislature in a 1987 revigion of Title 7, though no expiration date was mentioned in that revision. 1987 Wyo. Sess. Laws ch. 157, see. 3 at 828-31. Those statutes were re-enacted in 1989 with an expiration date of July 1, 1995. It was apparent that the Legislature wanted to keep an eye on these fairly liberal "wire tap" laws. However, no action was taken by the Legislature in 1995, and, thus, they did expire. The statutes at issue were repealed in 2001 and revised and re-enacted as Wyo. Stat. Ann. §§ 7-8-7011 through-712 (LexisNexis 2001). See United States v. Salazar, 823 F.3d 852 (10th Cir.2003).

[¶5] A significant piece of evidence in obtaining the conviction against Pearson was a recording that was made using a remote microphone (commonly called a "wire") concealed on the person of a confidential informant who purchased methamphetamine from Pearson. Pearson asserts as his new evidence that the statute governing communications interceptions was defunct when the evidence used against him was obtained. It suffices to say here that the old statutes, as well as the new statutes, cited above have nothing to do with the evidence obtained against Pearson. Almada v. State, 994 P.2d 299, 306-7 (Wyo.1999). Therefore, we conclude that Pearson's motion did not raise an issue with respect to newly discovered evidence.

[¶6] Our next step is to employ the provisions of W.R.Cz.P. 88(b), which requires that a motion for new trial be filed within 15 days after the verdict. "The time limitations of Rule 88 are jurisdictional. The court is without power to consider an untimely motion for a new trial. It cannot extend the time in which to move for a new trial except as specifically provided in Rule 33 itself." 83 Charlee Alan Wright, Federal Practice and Procedure 2d § 558 at 8360-61 (1982 and Supp.2002); and see generally Barela v. State, 2002 WY 143, I 8, 55 P.3d 11, T8 (Wyo.2002); and v. State, 2002 WY 118, 19, 51 P.3d 851 T9 (Wyo.2002). Thus, the district court did not have jurisdiction to consider Pearson's motion for new trial and neither does this Court.

CONCLUSION

[¶7] The appeal is dismissed.

      . Almada upheld participant monitoring without a court order if done with the consent of one participant, and further held that participant monitoring did not violate either the Fourth Amendment or provisions of the Wyoming Constitution governing unreasonable search and seizure.


text:
    2003 WY 72
    Ralph D. BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-73.
    Supreme Court of Wyoming.
    June 4, 2003.

      Kenneth M. Koski, State Public Defender and Donna D. Domonkos, Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S8. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Bryan A. Skoric, Senior Assistant Attorney General, Representing Appel-lee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶1] Appellant, Ralph D. Brown (Brown), entered a plea of guilty to the crime of burglary, and a judgment finding him guilty of that crime was entered on March 14, 2002. As a part of his sentence, he was ordered to pay the victims of his crime $5,451.65 as restitution. In this appeal, Brown contends that there is insufficient credible evidence in the record to support portions of that restitution order. We will affirm.

ISSUE

[T2] The sole issue in this appeal is whether there is credible evidence in the record to support the district court's restitution order and whether the district court otherwise abused its discretion in ordering restitution.

FACTS

[¶3] As a part of his guilty plea, Brown conceded that he committed the burglary of the victims' home, although he had very little memory of it. The record reflects that Brown had a severe alcohol dependence problem. The burglary occurred in May or June of 2000, while the victims were on vacation. At the time the district court accepted Brown's guilty plea, it was agreed that the evidence with respect to restitution would be taken at the sentencing hearing.

[T4] Although Brown raises the cost of the gun repair in this appeal, the transcript reveals that, at the sentencing hearing, Brown conceded that the estimate of $895.00 to repair guns stolen by him was accurate. Brown did challenge all of the other estimated losses incurred by the victims. The remainder of the restitution was based on the testimony of the two victims, who shared the same residence. One of the victims was Brown's former wife. She testified that the following items were missing from her home: an antique leather doctor's bag; over 400 silver dollars; a white gold ring with an emerald and diamonds (value $249.50); a gold ring with an opal stone and three diamonds on each side (value $194.00); an antique Indian Head cigar humidor (a researched value of $350.00, though she conceded she had paid less than that for it at a yard sale); and $163.15 in cash, which had been in the humidor. Brown's former wife testified that Brown admitted he had taken these items and went with her to various pawnshops to try to find them. Brown said he would try to get all the items back to her, if she would break up with her male friend, Mr. Dorr, who was the other victim of the burglary. On- cross-examination, Brown's former wife repeated much of the testimony outlined above, but in response to questions by defense counsel and by reference to her notes, testified that the humidor was worth $350.00-$750.00 and read from a detailed list she had made of the moneys that were in the humidor.

[¶5] Dorr testified that among the items missing that belonged to him were: a black, molded leather doctor's bag, the kind used for house calls (cirea 1980; value $500.00); 400 old silver dollars (value $3,000.00); and antique coin wraps (value $100.00). He also attested to the value of the opal and diamond ring described above. Defense counsel did not cross-examine Mr. Dorr to any significant extent. The focus of Brown's claims in this appeal is the value of the doctor's bag, coins; and coin wraps.

[¶6] The testimonial evidence outlined above was also incorporated into the presen-tence report based on written and oral reports made to the preparer of the presen-tence report.

[¶7] Based on the testimony, as well as the presentence report, the district court awarded restitution of: "Medical bag, $500; silver dollar coins, [$18,000; antique humidor, $350; contents of that item in money, $163.15; ring with diamonds and emerald, $249.50; opal ring, $194; antique coin wraps, $100; repairs to guns and holsters, $895. Counsel, you can check my arithmetic; but I believe that will total $5,451.65."

[T8] The governing statutes clearly impose a responsibility on the trial court and the prosecuting attorney to effectuate victim restitution in eriminal matters. Wyo. Stat. Ann. § 7-9-102 (LexisNexis 2001) (emphasis added) provides:

In addition to any other punishment pre-seribed by law the court shall, upon con-viection for any misdemeanor or felony, order a defendant to pay restitution to each victim as determined under W.S. 7-9-108 and 7-9-114 unless the court specifically finds that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay.

Wyo. Stat. Ann. § 7-9-108 (LexisNexis 2001) (emphasis added) provides:

(a) As part of the sentencing process including deferred prosecutions under W.S. 7-13-801, in any misdemeanor or felony case, the prosecuting attorney shall present to the court any claim for restitution submitted by any victim.
(b) In every case in which a claim for restitution is submitted, the court shall fix a reasonable amount as restitution owed to each victim for actual pecuniary damage resulting from the defendant's criminal activity, and shall include its determination of the pecuniary damage as a special finding in the judgment of conviction or in the order placing the defendant on probation under W.S. 7-13-301. In determining the amount of restitution, the court shall consider and include as a special finding, each victim's reasonably foreseeable actual pecuniary damage that will result in the future as a result of the defendant's criminal activity. A long-term physical health care restitution order shall be entered as provided in W.S. 7-9-118 through 7-9-115.
(c) The court shall order the defendant to pay all or part of the restitution claimed or shall state on the record specific reasons why an order for restitution was not entered. If the court determines that the defendant has no ability to pay and that no reasonable probability exists that the defendant will have an ability to pay in the future, the court shall enter specific findings in the record supporting its determination.
(d) Any order for restitution under this chapter constitutes a judgment by operation of law on the date it is entered. To satisfy the judgment, the clerk, upon request of the victim or the district attorney, may issue execution in the same manner as in a civil action.
(e) The court's determination of the amount of restitution owed under this seetion is not admissible as evidence in any civil action.
(f) The defendant shall be given credit against his restitution obligation for payments made to the victim by the defendant's insurer for injuries arising out of the same facts or event.

STANDARD OF REVIEW

[19] As a part of the sentencing process, the trial court is required to order a defendant to pay restitution, if applicable, and if the defendant has the ability to pay or if there is a reasonable probability that he will have the ability to pay. Appellate review of ordered restitution is confined to a search for procedural error or a clear abuse of discretion. Aldridge v. State, 956 P.2d 341, 343 (Wyo.1998). The amount of restitution fixed by the trial court should be supported by evidence sufficient to afford a reasonable basis for estimating the loss. Hilterbrand v. State, 930 P.2d 1248, 1250 (Wyo.1997). A challenge to the amount of restitution set by the court must demonstrate an abuse of discretion. "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 circumstances and without doing so arbitrarily or capriciously." Brock v. State, 967 P.2d 26, 27 (Wyo.1998) (quoting Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)). We have held that a victim impact statement, such as that incorporated into the Presentence Report in this case, is credible evidence upon which a trial court may impose a restitution amount. Stowe wv. State, 10 P.8d 551, 553 (Wyo.2000).

DISCUSSION AND CONCLUSION

[110] Here, in addition to the pre-sentence report, the victims gave credible testimony, based on well-informed opinions, concerning the value of their restitution claims. Even in cireumstances where the burden of proof is beyond a reasonable doubt, where an owner has sufficient knowledge to establish the value of his own property, he may properly serve as a witness. Pearson v. State, 818 P.2d 1144, 1148 (Wyo.1991); Weathers v. State, 652 P.2d 970, 973-74 (Wyo.1982). The victims in this case presented credible and uncontradicted evidence that was based on the actual face value of some items, and on estimated values based or. research directed at determining fair market value with respect to other items. We hold that there was sufficient credible evidence to sustain the district court's findings with fespect to restitution, as well as that the sentence imposed with respect to restitution was well within the trial court's discretion. The judgment and sentence of the district court are affirmed.