UIdaho LawDigital Commons @ UIdaho LawIdaho Supreme Court Records & Briefs1-31-2014Flying "A" Ranch v. Board of CountyCommissioners for Fremont County, Idaho Clerk'sRecord Dckt. 41584Follow this and additional works at: https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefsThis Court Document is brought to you for free and open access by Digital Commons @ UIdaho Law. It has been accepted for inclusion in IdahoSupreme Court Records & Briefs by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contactannablaine@uidaho.edu.Recommended Citation"Flying "A" Ranch v. Board of County Commissioners for Fremont County, Idaho Clerk's Record Dckt. 41584" (2014). Idaho SupremeCourt Records & Briefs. 4840.https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/4840Page 1 of 408IN THE SUPREME COURT OF THE STATE OF IDAHO Flying A Ranch, Inc. an Idaho Corporation, Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow Supreme Court No: 41584-2013 Case No: CV-2012-580 Plaintiff(s)/Respondent(s), Vs CLERK'S RECORD ON APPEAL Board Of County Commissioners for Fremont County, a political subdivision of the state of Idaho, Ronald "Skip" Hurt, individually and in his official capacity, and Leroy Miller, individually and in his official capacity Defendant(s)/ Appellant(s). CLERK'S RECORD ON APPEAL Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for THE COUNTY OF FREMONT Attorney Gregory W. Moeller DISTRICT JUDGE For Respondent Lynn Hossner 109 North 2nd West St. Anthony, ID, 83445 ,,, .... .,,,,, ,,,, 'X-Q\V. DIS'!; ,,,,_ ........ ,.,:;. •••••••••• ~0:... ~ $' ~~ •• •• •• •• ,. , '~ .· •• C6~' ~ Cl1! SEVENTH\ "S~ : :f i JUDICIAL i ~ E ... . . -;_~\COURT io$ , ~-··. ..., .$~ , ·~ .. .. \' .... ,.., OA-.·······:~ ~ ,.::0 ''j''FCQUN' ~\''' ,,,,, .. ,,,,, Attorney For Appellant Blake G. Hall 901 Pier View Drive, Ste. 203 Idaho Falls, ID, 83402 Page 2 of 408Date: 1/31/2014 Time: 09:37 AM Page 1 of 4 Seventh Judicial District Court- Fremont County ROAReport Case: CV-2012-0000580 Current Judge: Gregory W. Moeller User: HARRIGFELD Flying A Ranch, Inc., etal. vs. Fremont County Board Of Commissioners, etal. Date Code User Judge 11/23/2012 NCOC MACE New Case Filed - Other Claims Gregory W. Moeller MACE Filing: L3- Appeal or petition for judicial review or Gregory W. Moeller cross appeal or cross-petition from commission, board, or body to district court Paid by: Karl Lewies Receipt number: 0005958 Dated: 11/23/2012 Amount: $96.00 (Credit card) For: Atchley, Clen P (plaintiff) MACE Filing: Technology Cost- CC Paid by: Karl Gregory W. Moeller Lewies Receipt number: 0005958 Dated: 11/23/2012 Amount: $3.00 (Credit card) For: Atchley, Clen P (plaintiff) NOAP MACE Plaintiff: Flying A Ranch, Inc., Notice Of Gregory W. Moeller Appearance Karl H. Lewies 12/5/2012 ORDR MACE Order Governing Procedure On Review-Filed In Gregory W. Moeller Chambers 12-3-2012. 1/2/2013 HRSC MACE Hearing Scheduled (Hearing 01/22/2013 02:30 Gregory W. Moeller PM) Motion To Disqualify Counsel 1/7/2013 MOTN MACE Motion To Disqualify Counsel Gregory W. Moeller MOTN MACE Motion-Partial Motion To Dismiss Gregory W. Moeller NOTC MACE Notice Of Hearing Gregory W. Moeller AFFD MACE Affidavit Of Karl Lewies Gregory W. Moeller MOTN MACE Motion To Withdraw Gregory W. Moeller 1/9/2013 NOTC MACE Notice Of Hearing Gregory W. Moeller CERT MACE Certificate Of Mailing-Amended Gregory W. Moeller 1/11/2013 STIP MACE Stipulation For Substitution Of Counsel Gregory W. Moeller 1/14/2013 STIP MCHANDLER Stipulation For Substitution Of Counsel Gregory W. Moeller NOAP MCHANDLER Plaintiff: Flying A Ranch, Inc., Notice Of Gregory W. Moeller Appearance Lynn Hossner 1/16/2013 TRAN MACE Transcript Filed - Notice of Lodging Gregory W. Moeller 1/22/2013 HRHD MACE Hearing result for Hearing scheduled on Gregory W. Moeller 01/22/2013 02:30PM: Hearing Held Motion To Disqualify Counsel Motion To Withdraw HRSC MACE Hearing Scheduled (Hearing 02/26/2013 03:00 Gregory W. Moeller PM) Motion For Partial Summary Judgment MINE MACE Minute Entry Gregory W. Moeller ANSW MACE Answer To Partial Motion To Dismiss Gregory W. Moeller 1/30/2013 AFFD MACE Affidavit Of Attorney Fees Gregory W. Moeller 1/31/2013 MISC MACE Objection To Attorney Fees Gregory W. Moeller AFFD MACE Affidavit Of Kristina Larson Gregory W. Moeller AFFD MACE Affidavit Of Karl Lewies Gregory W. Moeller 2/4/2013 ORDR MACE Order On Motions-Filed In Chambers Gregory W. Moeller 2/6/2013 NOTC MACE Notice Of Conflict Of Interest Gregory W. Moeller Page 3 of 408Date: 1/31/2014 Time: 09:37 AM Page 2 of 4 Seventh Judicial District Court - Fremont County ROAReport Case: CV-2012-0000580 Current Judge: Gregory W. Moeller User: HARRIGFELD Flying A Ranch, Inc., etal. vs. Fremont County Board Of Commissioners, etal. Date Code User Judge 2/6/2013 NOTC MACE Notice Of Hearing Gregory W. Moeller MOTN MACE Motion For Partial Dismissal Gregory W. Moeller 2/12/2013 CERT MACE Certificate Of Mailing Gregory W. Moeller MEMO MACE Memorandum In Support Of Petitioners Petition Gregory W. Moeller For Review MOTN MACE Motion For Extention Gregory W. Moeller AFFD MACE Affidavit Of Karl Lewies Gregory W. Moeller ORDR MACE Order Filed In Chambers-2-4-2013 Gregory W. Moeller AFFD HARRIGFELD Affidavit of Lynn Hossner Gregory W. Moeller 2/14/2013 NOTC MACE Notice Of Hearing On Petitioners Motion For Gregory W. Moeller Extension Of Time NOTC MACE Notice Of Hearing On Petitioners Motion For Gregory W. Moeller Extension Of Time MISC MACE Respondants Motion To Strike Motion For Gregory W. Moeller Extension Of Time MOTN MACE Motion For Order Shortening Time Gregory W. Moeller AFFD HARRIGFELD Affidavit of Blake G. Hall in Support of Motion to Gregory W. Moeller Strike Motion for Extension of Time NOTC HARRIGFELD Notice of Hearing Gregory W. Moeller 2/15/2013 ORDR MACE Order Modifying Briefing Schedule-Filed In Gregory W. Moeller Chambers 2/19/2013 NOTC PARKER Notice of Withdrawal of Motion to Represent Gregory W. Moeller County 2/21/2013 MISC MACE Reply In Support Of Motion For Attorney Fees Gregory W. Moeller MINE HARRIGFELD Minute Entry Gregory W. Moeller 2/26/2013 MINE HARRIGFELD Minute Entry Gregory W. Moeller 3/13/2013 NOTC MACE Notice Of Lodging Gregory W. Moeller 3/29/2013 MEMO MACE Memorandum Decision Re: Rule 11 Sanctions Gregory W. Moeller 4/4/2013 JDMT MACE Judgment-Final Judgment On Rule 11 Sanctions Gregory W. Moeller 5/2/2013 MOTN MACE Motion For Dismissal Of Finding Of A Public Gregory W. Moeller Road AFFD MACE Affidavit Of Lynn Hossner For Dismissal Of Order Gregory W. Moeller Of Public Road CERT MACE Certificate Of Service Gregory W. Moeller MACE Filing: L4 - Appeal, Civil appeal or cross-appeal to Gregory W. Moeller Supreme Court Paid by: Karl Lewies Receipt number: 0001997 Dated: 5/2/2013 Amount: $109.00 (Credit card) For: Flying A Ranch, Inc., (plaintiff) MACE Filing: Technology Cost- CC Paid by: Karl Gregory W. Moeller Lewies Receipt number: 0001997 Dated: 5/2/2013 Amount: $3.00 (Credit card) For: Flying A Ranch, Inc., (plaintiff) Page 4 of 408Date: 1/31/2014 Time: 09:37AM Page 3 of 4 Seventh Judicial District Court - Fremont County ROAReport Case: CV-2012-0000580 Current Judge: Gregory W. Moeller User: HARRIGFELD Flying A Ranch, Inc., etal. vs. Fremont County Board Of Commissioners, etal. Date Code User Judge 5/2/2013 NOTC HARRIGFELD Notice of Appeal Gregory W. Moeller 5/8/2013 MISC HARRIGFELD Respondent's Opposition to Motion to Dismissal Gregory W. Moeller MISC HARRIGFELD Respondent's Opposition to Petition to Review Gregory W. Moeller AFFD HARRIGFELD Affidavit of Blake G. Hall Gregory W. Moeller 5/9/2013 MISC HARRIGFELD Clerk's Record and Reporter's Transcript DUE Gregory W. Moeller 7/15/13 5/13/2013 AMEN HARRIGFELD Amended Notice of Appeal Gregory W. Moeller 5/17/2013 CERT MACE Certificate Of Mailing Gregory W. Moeller MEMO MACE Memorandum In Response To Memorandum Of Gregory W. Moeller Defendants 6/11/2013 TRAN HARRIGFELD Transcript Filed Gregory W. Moeller 6/26/2013 ORDR HARRIGFELD Order Consolidating Appeals Gregory W. Moeller 7/10/2013 HARRIGFELD Miscellaneous Payment: For Making Copy Of Any Gregory W. Moeller File Or Record By The Clerk, Per Page Paid by: Karl Lewies Receipt number: 0003230 Dated: 7/10/2013 Amount: $231.40 (Check) APPEAL RECORD 8/1/2013 HRVC MACE Hearing result for Hearing scheduled on Gregory W. Moeller 02/26/2013 03:00 PM: Hearing Vacated Motion For Partial Summary Judgment Motion For Patrial Dismissal 8/2/2013 CERT MACE Certificate Of Mailing Gregory W. Moeller NOTC MACE Notice Of Hearing On Petitioners Appeal Gregory W. Moeller 8/5/2013 HRSC MACE Hearing Scheduled (Hearing 08/27/2013 03:00 Gregory W. Moeller PM) Hearing On Petitioners Appeal 8/22/2013 MISC HARRIGFELD Appellant's Brief Gregory W. Moeller 8/27/2013 MINE HARRIGFELD Minute Entry Gregory W. Moeller 9/19/2013 MISC MACE Respondant's Brief Gregory W. Moeller 10/16/2013 MISC MACE Decision On Review Gregory W. Moeller MISC MACE Appelants Reply Brief Gregory W. Moeller 10/23/2013 MISC MACE Amended Decision Of Review Gregory W. Moeller 11/6/2013 NOAP MACE Defendant: Fremont County Board Of Gregory W. Moeller Commissioners, Notice Of Appearance Blake G. Hall STIP MACE Stipulation For Substitution Of Counsel Law Firm Gregory W. Moeller Of Hall, Angell And Starnes, LLP Substituted For Nelson, Hall, Parry and Tucker 11/8/2013 NOTC HARRIGFELD Notice of Appeal Gregory W. Moeller HARRIGFELD Filing: L4 -Appeal, Civil appeal or cross-appeal to Gregory W. Moeller Supreme Court Paid by: Hall Angell & Starnes Receipt number: 0005343 Dated: 11/8/2013 Amount: $109.00 (Check) For: Fremont County Board Of Commissioners, (defendant) Page 5 of 408Date: 1/31/2014 Time: 09:37AM Page 4 of4 Seventh Judicial District Court - Fremont County ROAReport Case: CV-2012-0000580 Current Judge: Gregory W. Moeller User: HARRIGFELD Flying A Ranch, Inc., etal. vs. Fremont County Board Of Commissioners, etal. Date Code User Judge 11/8/2013 BNDC HARRIGFELD Bond Posted - Cash (Receipt 5344 Dated Gregory W. Moeller 11/8/2013 for 100.00) BONC HARRIGFELD Condition of Bond Preparation of the Clerk's Gregory W. Moeller Record on Appeal 11/26/2013 NOTC MACE Notice-Amended Notice Of Appeal Gregory W. Moeller ORDR HARRIGFELD Order Re: Amended Notice of Appeal Gregory W. Moeller 12/20/2013 HRVC MACE Hearing result for Hearing scheduled on Gregory W. Moeller 08/27/2013 03:00PM: Hearing Vacated Hearing On Petitioners Appeal 1/3/2014 TRAN MACE Transcript Filed Gregory W. Moeller Page 6 of 408Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 Attorney for Petitioners j I \ ""'~~~::::::::::s~zg:,:;:,-:.;;..-;;;.--..~ IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12- S?fiJ PETITION FOR JUDICIAL REVIEW Fee Category: L.3. Fee: $96.00 COME NOW Petitioners, by and through their attorney of record, Karl H. Lewies, and petition the Court as follows: PETITION FOR JUDICIAL REVIEW- 1 Page 7 of 408JURISDICTION AND PARTIES 1. Petitioners, Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow and David Tuk Nedrow, are individuals and residents of Fremont County, Idaho. 2. Petitioner Flying "A" Ranch, Inc., is an Idaho corporation that holds title to land located in Fremont County, Idaho that is the subject of this appeal. 3. Petitioners are aggrieved persons under Idaho Code § 40-208, and the amount in controversy exceeds $10,000.00. 4. Respondent, Board of County Commissioners for Fremont County ("Board") is the governing body for Fremont County, Idaho, a political subdivision of the state ofldaho ("County"). 5. Respondents, Ronald "Skip" Hurt and LeRoy Miller are elected county commissioners for Fremont County, Idaho ("Commissioners"). Each Commissioner is named individually and in his official capacity. FIRST CAUSE OF ACTION PETITION FOR JUDICIAL REVIEW 6. Petitioners incorporate the allegations contained in paragraphs 1 through 5, above, as if fully set forth. 7. Petitioners have ownership interests in real property located in Sections 8, 17, and 20, Township 9 North, Range 42 East, Boise Meridian, Fremont County, Idaho, that will be adversely affected by Respondents' recent passage of Ordinance No. 2013-01 adopting an official road map ("Official Road Map") for Fremont County under authority of Idaho Code § 40-202 that depicts private roads located on their land and commonly known as the Old Yellowstone Mail Route Road PETITION FOR JUDICIAL REVIEW- 2 Page 8 of 408and Snow Creek Road, respectively, as public roads (the "Subject Roads"). 8. Petitioners seek judicial review, under authority ofldaho Code§ 40-208, and Homestead Farms, Inc. v. Board of Commissioners of Teton County, 141 Idaho 855 (2005), of the Board's October 29, 2012 action passing Ordinance No. 2013-01 adopting the Official Road Map, and all related proceedings. Related proceedings include, but are not necessarily limited to the following: (1.) the Board's public hearing held September 27, 2012; (2.) the Board's public information meeting held July 20, 2012, in Island Park, Fremont County, Idaho; (3.) the Board's public information meeting held July 26, 2012, at Ashton, Fremont County, Idaho; and (4.) the Board's public information meeting held July 30, 2012, at St. Anthony, Fremont County, Idaho. 9. Digital recordings of the Board's public hearing held September 27, 2012, in St. Anthony, Fremont County, Idaho was reportedly made by the County Clerk. Petitioners have been informed that such recording is in the possession of the County Clerk, whose address is 151 W. 1st N., St. Anthony, Idaho, 83445. Digital recordings of all related proceedings were reportedly not made by the County Clerk. 10. Petitioners have exhausted all administrative remedies available to them and they remain aggrieved because their real property will be adversely affected, and their substantial rights prejudiced, by the placement of the Subject Roads on the Official Road Map as part of Ordinance No. 2013-01. 11. Petitioners hereby petition this Court for judicial review of the Board's October 29, 2012 action passing Ordinance No. 2013-01 adopting the Official Road Map, and all related proceedings, in accordance with the provisions of Idaho Code § 40-208, and other applicable provisions oflaw. PETITION FOR JUDICIAL REVIEW- 3 Page 9 of 40812. Petitioners maintain that the Board's findings, inferences, conclusions, and decisions violated the provisions of Idaho Code § 40-208, insofar as they were: (a) in violation of constitutional or statutory provisions; (b.) in excess ofthe statutory authority of the Board; (c.) made upon unlawful procedure; (d.) affected by other error of law; (e.) clearly erroneous in view of the reliable, probative and substantial information on the whole record; or (f.) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. 13. Specifically, Petitioners seek judicial review of the following issues, and reserve the right to assert additional issues for judicial review: a.) Whether the Board failed to make any factual determination of the status of the Subject Roads as public or private before placing them on the purported Official Road Map; b.) Whether the Board engaged in unlawful procedure, acted arbitrarily and capriciously, or abused its discretion by placing the Subject Roads on the Official Road Map without first making a factual determination whether such road was public or private. c.) Additional issues may be later discovered to be in violation of Idaho Code § 40-208, and other law, accordingly, Petitioners hereby reserve their rights to assert such additional issues. 14. Petitioners request the preparation of transcripts of the Board's public hearing held on September 27, 2012, as well as any and all other related meetings that were recorded. 15. Petitioners also request preparation of transcripts of any and all other related Board proceedings. 16. Petitioners' counsel will make arrangements for payment with the County Clerk for the preparation of such transcripts and the preparation of the record herein. PETITION FOR JUDICIAL REVIEW- 4 Page 10 of 408SECOND CAUSE OF ACTION INJUNCTIVE RELIEF 17. Petitioners incorporate the allegations contained in paragraphs 1 through 16, above, as if fully set forth. 18. Petitioners maintain that any public use or public maintenance of the Subject Roads that may be undertaken in reliance upon the Board's adoption of Ordinance No. 2013-01 and the Official Road Map, will cause immediate and irreparable harm to Petitioners. 19. Petitioners, therefore, seek temporary, preliminary, and permanent injunctions enjoining the Board, Fremont County, and members of the general public, and their agents and representatives, from maintaining or using the Subject Roads during the pendency of this appeal. CERTIFICATION I, Karl H. Lewies, attorney for Petitioners, hereby certify that true and correct copies of this Petition for Judicial Review have been served on the Board, the individual commissioners, and the County's prosecuting attorney; and further certify that the County Clerk has been contacted, and will be paid, the estimated fee for preparation of the transcripts and preparation of the record herein. WHEREFORE, Petitioners pray for the following relief: 1. That the Board's passage of Ordinance No. 2013-01 adopting the Official Road Map, be vacated; 2. That any and all public use and public maintenance that could be undertaken in reliance PETITION FOR JUDICIAL REVIEW- 5 Page 11 of 408upon the Board's passage of Ordinance No. 2013-01 and the Official Road Map be enjoined pending the Court's final decision on this Petition for Judicial Review; 3. That Petitioners be awarded attorney's fees and costs in accordance with I.C. §§ 12-117, 12-119, 12-120, and 12-121, I.R.C.P. 54( e) and I.R.C.P. 84, as applicable. 4. That Petitioners be awarded such other and further relief as the Court deems just and equitable. DATED this 23rd day ofNovember, 2012. PETITION FOR JUDICIAL REVIEW- 6 KARL H. LEWIES, PLLC ;G~ ?-::2'. Karl H. Lewies, Esq. Attorney for Petitioners Page 12 of 408CERTIFICATE OF SERVICE I hereby certify that I am a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the 23rd day of November, 2012, I caused a true and correct copy of the foregoing PETITION FOR JUDICIAL REVIEW to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Board of Commissioners for Fremont County c/o County Clerk [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile 151 W. 1st N. St. Anthony, ID 83445 Ronald "Skip" Hurt 151 W. 15tN. St. Anthony, ID 83445 LeRoy Miller 151 W. 15tN. St. Anthony, ID 83445 Joette Lookabaugh, Esq. Fremont County Prosecuting Attorney 22 W. l 5tN. St. Anthony, ID 83445 DATED this 23rd day ofNovember, 2012. PETITION FOR JUDICIAL REVIEW- 7 [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile ;6,?/X£2._ Karl H. Lewies, Esq. Attorney for Petitioners Page 13 of 408• • Date. --!~~~~~=------"-·Time ---l..!.:.:.==-~~_:_-::---+'"7r.::---By t1 Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail ~6# L:IBGH\7525- Fremont County files\7525.18 Flying A Ranch\Pieadings\Motion to Disqualify Counselwpd MOTION TO DISQUALIFY COUNSEL- 5 Page 21 of 408DISTRICT SE'/i:h: COURT County of Fremont State of Idaho Fiied: :___-==============!-Blake G. Hall Deputy Prosecuting Attorney 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 (208) 522-3001 ~ 2013 0 ABBIE MACE,-CCERK )'lj (208) 523-7254 Idaho State Bar No. 2434 Attorney for Respondents IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 PARTIAL MOTION TO DISMISS COME NOW Respondents, Board of County Commissioners for Fremont County, Idaho, Ronald "Skip" Hurt and Leroy Miller, by and through counsel of record, and hereby submit this Partial Motion to Dismiss Commissioners Hurt and Miller in their individual capacity pursuant to Rule 12(b )( 6), Idaho Rules of Civil Procedure. PARTIAL MOTION TO DISMISS- 1 Page 22 of 408STANDARD OF REVIEW FOR MOTION TO DISMISS In disposing of a motion under Rule 12(b )( 6), a court may only consider those facts that appear in the complaint. See Hellickson v. Jenkins, 118 Idaho 273, 796 P.2d 150 (Ct. App. 1990). In order to survive such a motion, the non-moving party's complaint must, on its face, contain allegations that, if proven, would entitle the non-moving party to the relief claimed. See Wells v. United States Life Ins. Co., 119 Idaho 160, 804 P.2d 333 (Ct. App. 1991). The standard for reviewing such a motion is the same as that employed in a motion for summary judgment -the non-moving party is entitled to all inferences from the record being resolved in his favor. See Idaho Schs. For Equal Educ. Opportunity v. Evans, 123 Idaho 573, 850 P.2d 724 (1993); Miles v. Idaho Power Co., 119 Idaho 160, 804 P.2d 333 (Ct.App. 1991). A complaint should be dismissed pursuant to a Rule 12(b )( 6) motion if, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gardner v. Hollifield, 96 Idaho 609, 611, 533 P.2d 730,732 (1975). ARGUMENT This matter comes before the Court because Petitioner has named Commissioner Ronald "Skip Hurt and Commissioner Leroy Miller (referred to collectively as the "Commissioners") in both their official and individual capacities. A review of the Petition for Judicial Review fails to articulate any grounds for which the Commissioners can be named in their individual capacities. The central focus of this matter is a request for judicial review centered on the adoption of Ordinance No. 2013-01, adopting an official road map. Each paragraph of the Petition alleges that the Board of Commissioners failed to make the necessary factual determination prior to adopting the road relative to whether a road was private or public. Absent from the Petition is PARTIAL MOTION TO DISMISS- 2 Page 23 of 408any suggestion that the Commissioners acted in their individual capacity. Rather, the Petition recognizes that the actions of the Commissioners were while sitting as elected Commissioners for Fremont County. There was never any action by either Commissioner in their individual capacity. Because there are no allegations in the Petition that can be construed as action in their individual capacity, the Court should dismiss Commissioners Hurt and Miller in their individual capacity. There was never any reason for Petitioners to sue the Commissioners in their individual capacity. There is no suggestion that they acted in any capacity other than their official capacity as a Fremont County Commissioner. To include the allegations against the Commissioners in their individual capacity is bad faith, frivolous, and unjustified. Because Petitioners have acted with bad faith by including unsubstantiated allegations against the Commissioners, Respondents should be awarded their attorneys' fee incurred in this matter. Idaho Code§ 6-918A permits the award of attorneys' fees: At the time and in the manner provided for fixing costs in civil actions, and at the discretion of the trial court, appropriate and reasonable attorney fees may be awarded to the claimant, the governmental entity or the employee of such governmental entity, as costs, in actions under this act, upon petition therefor and a showing, by clear and convincing evidence, that the party against whom or which such award is sought was guilty of bad faith in the commencement. conduct. maintenance or defense of the action. (Emphasis added). Petitioners have acted in bad faith by commencing litigation that lacks any foundation for claims against the Commissioners in their individual capacity. Attorney's fees should be awarded in having to defend against these frivolous allegations. PARTIAL MOTION TO DISMISS- 3 Page 24 of 408Respondents further requests attorney fees under Idaho Appellate Rule 11.2. Rule 11.2 provides in pertinent part: Every notice of appeal, petition, motion, brief and other document of a party represented by an attorney shall be signed by at least one (1) licensed attorney of record ofthe state ofldaho ... The signature of an attorney or party constitutes a certificate that the attorney or party has read the notice of appeal, petition, motion, brief or other document; that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If the notice of appeal, petition, motion, brief, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the notice of appeal, petition, motion, brief or other document including a reasonable attorney's fee. (Emphasis added). The Idaho Supreme Court has held that a signed legal document violates Rule 11.2 if "(1) it is not well grounded in fact; (2) it is not warranted by existing law or a good-faith extension, modification, or reversal of existing law; and (3) it was interposed for an improper purpose." Lattin v. Adams County, 149 Idaho 497, 236 P.3d 1257, 1264 (2010) (citing Readv. Harvey, 147 Idaho 364,209 P.3d 661,668 (2009)). The Commissioners are being forced to defend against allegations that are completely unsupported by fact and serve to only harass and needlessly increase the cost of litigation. As such, an award of attorney's fees is appropriate. PARTIAL MOTION TO DISMISS- 4 Page 25 of 408CONCLUSION Based on the foregoing, Respondents respectfully request that the Court dismiss Commissioners Hurt and Miller in their individual capacity. Respondents further request that the Court enter an order awarding costs and fees incurred in preparing and arguing the instant motion. DATED this_$_ day of January, 2013. ~6/¥1 AK G.HALL CERTIFICATE OF SERVICE p/ I hereby certify that I served a true copy of the foregoing document upon the following this --t-- day of January, 2013, by regular mail, CM-ECF electronic notification or electronic mail. Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, ID 83440 PARTIAL MOTION TO DISMISS- 5 n [ ] [ ] Mailing Hand Delivery Fax Overnight Mail Page 26 of 408Blake G. Hall Deputy Prosecuting Attorney 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 (208) 522-3001 (208) 523-7254 Idaho State Bar No. 2434 Attorney for Respondents OIST::IICT SEVEN COURT County of Fremont State of Idaho Fiiedi=: ==========;---JAN - 7 2013 ABBIE MACE, CL*_$ By: ~~ D puty Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision ofthe state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 NOTICE OF HEARING PLEASE TAKE NOTICE that on the 22nct day of January, 2013, at 2:30p.m., of said day, or as soon thereafter as counsel can be heard at the Courthouse, in Fremont County, Idaho, Defendants' Motion to Disqualify Counsel and Partial Motion to Dismiss will be brought on for hearing before the Honorable Gregory W. Moeller. NOTICE OF HEARING - 1 Page 27 of 408DATED this__£_ day of January, 2013. CERTIFICATE OF SERVICE IJJereby certify that I served a true copy of the foregoing document upon the following this-+ day of January, 2013 by regular mail, CM-ECF electronic notification or electronic mail. Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N. , Suite #125 Rexburg, ID 83440 NOTICE OF HEARING - 2 ~ Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail Page 28 of 408• Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 3 72-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 Attorney for Petitioners IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation,) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) ) Petitioners, ) ) vs. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a political ) subdivision of the state of Idaho, RONALD "SKIP") HURT, individually and in his official capacity, ) and LEROY MILLER, individually and in his ) official capacity, ) ) Respondents. ) STATEOFIDAHO ) ) ss: County of Fremont ) Case No. CV-12-580 AFFIDAVIT OF KARL H. LEWIES Karl H. Lewies, being first duly sworn upon oath, deposes and says: 1 - AFFIDAVIT OF KARL H. LEWIES DOCUMENT o..J"'A'' '-<.i 1uN:n Page 29 of 4081. I make this affidavit based upon my personal knowledge. 2. Effective as of January 14, 2013, I will be sworn-in as the duly elected prosecuting attorney for Fremont County, a political subdivision of the state of Idaho. 3. Once I take office, a conflict of interest will arise in connection with my continued representation of Petitioners in this case. 4. Under the Idaho Rules of Professional Conduct, Rule 1.16, such circumstances require my mandatory withdrawal of representation. 5. Given the nature and posture of the pending litigation, it is my good faith belief that Petitioners will not be prejudiced in any way by my withdrawal. DATED this 7th day of January, 2013. Karl H. Lewies SUBSCRIBED AND SWORN to on oath before me this l day of January, 2013. 2 - AFFIDAVIT OF KARL H. LEWIES Page 30 of 408Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 3 72-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 Attorney for Petitioners DISTRICT SEVEN COURT ~ounty of Fremont State of Idaho Flled:r=============:::=:;---JAN - 7 20:: AB~:'· .. MA.CE, CLERK By: --~~+-~~~~ Deputy Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV -12-580 MOTION TO WITHDRAW COMES NOW counsel for Petitioners, attorney of record, Karl H. Lewies, Esq., and moves the Court for an order allowing his withdrawal of representation in this matter based on the following: PETITION FOR JUDICIAL REVIEW- 1 Page 31 of 4081. Effective as of January 14, 2013, the date on which counsel will be sworn as prosecuting attorney for Fremont County, Idaho, a political subdivision of the state of Idaho, continued representation of the Petitioners will likely result in violation of the Idaho Rules of Professional Conduct, Rule 1.16(a)(l). 2. Upon termination of representation, reasonable steps shall be taken to the extent reasonably practicable to protect Petitioners' interests, as required under Idaho Rules of Professional Conduct 1.16( d). 3. This motion is based on the pleadings and the affidavit of Karl H. Lewies, filed herewith. DATED this ih day of January, 2013. KARL H. LEWIES, PLLC ;4~ Karl H. Lewies, Esq. Attorney for Petitioners PETITION FOR JUDICIAL REVIEW- 2 Page 32 of 408CERTIFICATE OF SERVICE I hereby certify that I am a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the ih day of January, 2013, I caused a true and correct copy of the foregoing MOTION TO WITHDRAW to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Blake G. Hall, Esq. Deputy Fremont County P.A. P.O. Box 51630 Idaho Falls, ID 83405-1630 DATED this 7th day of January, 2013. PETITION FOR JUDICIAL REVIEW- 3 [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile Karl H. Lewies, Esq. Attorney for Petitioners Page 33 of 408• Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 Attorney for Petitioners • DISTRICT SEVEN COURT County of Fremont State of Idaho filed:;::===========::;--JAN -8 2013 A~ACE,CLERK By: ./JL!.}. --~~~--~D~e-p~ut~a~e~rk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 NOTICE OF HEARING TO: DEFENDANTS AND THEIR ATTORNEY OF RECORD: You will please take notice that on Tuesday, January 22, 2013, at 2:30P.M. o'clock, or as soon thereafter as counsel can be heard, at the Fremont County Courthouse, located at 151 W. 1st N., St. Anthony, Fremont County, Idaho, counsel for Petitioners will move the Court for its order NOTICE OF HEARING - 1 Page 34 of 408allowing withdrawal from representation. DATED this gth day of January, 2013. NOTICE OF HEARING - 2 Karl H. Lewies, Esq. Attorney for Petitioners Page 35 of 408CERTIFICATE OF SERVICE I hereby certify that I am a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the 8th day of January, 2013, I caused a true and correct copy of the foregoing NOTICE OF HEARING to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Blake G. Hall, Esq. Deputy Fremont County P .A. P.O. Box 51630 Idaho Falls, ID 83405-1630 Flying "A" Ranch, Inc. Clen & Emma Atchley 4054 E. 1300 N. Ashton, ID 83420 Clay & Laura Picard 4198 E. 1300 N. Ashton, ID 83420 George Ty Nedrow David Tuk Nedrow 1401 N. 3125 E. Ashton, ID 83420 DATED this 8th day of January, 2013. NOTICE OF HEARING - 3 [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile Karl H. Lewies, Esq. Page 36 of 408Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 Attorney for Petitioners DISTRICT SEVEN COURT County of Fremont State of Idaho Filed:~- _ o-· ___ _ j J,': . N- 8 l. L_ ________ ~ • MACE, CLERK By: Ul}4 ~~~----~D~e-p~ut-y~Cl~er~k IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision ofthe state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 AMENDED CERTIFICATE OF SERVICE I hereby certify that I am a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the 8th day of January, 2013, I caused a true and correct copy of the MOTION TO WITHDRAW that I filed with the Court on January 7, 2013, to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. AMENDED CERTIFICATE OF SERVICE- 1 Page 37 of 408,. -. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Flying "A" Ranch, Inc. Clen & Emma Atchley 4054 E. 1300 N. Ashton, ID 83420 Clay & Laura Picard 4198 E. 1300 N. Ashton, ID 83420 George Ty Nedrow David Tuk Nedrow 1401 N. 3125 E. Ashton, ID 83420 DATED this 8th day of January, 2013. AMENDED CERTIFICATE OF SERVICE- 2 [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile Karl H. Lewies, Esq. Page 38 of 408I ' Blake G. Hall Deputy Prosecuting Attorney 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 (208) 522-3001 (208) 523-7254 Idaho State Bar No. 2434 Attorney for Respondents DISTRICT SEVEN COURT ?;1~~;ty of Fremont State of Idaho JAN 1 1 2013 ABBIE ,M ..ACE CLERK By: !Jl) ')' . / Deputy Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 STIPULATION FOR SUBSTITUTION OF COUNSEL Defendants, BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, RONALD "SKIP" HURT, and LEROY MILLER by and through counsel of record, Blake G. Hall, Fremont County Deputy Prosecuting Attorney, and Blake G. Hall and Nathan R. Starnes, ofNELSON HALL PARRY TUCKER, hereby stipulate that the law firm ofNELSON STIPULATION FOR SUBSTITUTION OF COUNSEL- 1 Page 39 of 408HALL PARRY TUCKER, P.A. shall be substituted as counsel of record for Defendants, and copies of all pleadings or other papers should be directed to: BLAKE G. HALL, ESQ. NATHANR. STARNES, ESQ. NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P.O. Box 51630 Idaho Falls, ID 83405-1630 /-9-13 .. Date Date Ne son Hall Parry Tucker, P.A. CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this _t_ day of January, 2013, by the method indicated below: Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, ID 83440 [~ Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail STIPULATION FOR SUBSTITUTION OF COUNSEL- 2 Page 40 of 408Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 Attorney for Petitioners • IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 STIPULATION FOR SUBSTITUTION OF COUNSEL Petitioners, by and through their attorney of record, Karl H. Lewies, Esq., and Lynn Rossner, Esq., hereby stipulate that Lynn Rossner, Esq., has substituted as counsel of record for Petitioners, and copies of all pleadings and other papers should now be directed to him at the following address: STIPULATION FOR SUBSTITUTION OF COUNSEL- 1 DOCUMENT ORIGINAL SCANNED ---------------------------------~. -~. '·-·-··"''"-·~C,i'>ci""'''" Page 41 of 408Lynn Hossner, Esq. ATTORNEY AT LAW 109N. 2"d W. St. Anthony, ID 83445 DATED this 13th day of January, 2013 DATED this J..!fday of January, 2013 ;~_/~:. Karl H. Lewies, Esq. ' KARL H. LEWIES, PLLC /;::::? ~Li?~,Esq. Attorney at Law CERTIFICATE OF SERVICE I hereby certifY that I am .a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the ~~~day of January, 2013, I caused a true and correct copy of the foregoing STIPULATION F R SUBSTITUTION OF COUNSEL to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Blake G. Hall, Esq. Deputy Fremont County P.A. P.O. Box 51630 Idaho Falls, ID 83405-1630 DATED this J.!{!aay of January, 2013. ["-,~] U.S. Mail [ ] Hand Delivery [ ] Facsimile Karl H. Lewies, Esq. Attorney for Petitioners STIPULATION FOR SUBSTITUTION OF COUNSEL- 2 Page 42 of 408DISTR: ,-;T SEVEN COURT County of Fremont State of Idaho IN THE DISTRICT COURT OF THE SEVENTH JU ICffMcO:::IS~I~R!~C:=I==:=====:==::::;--OF THE STATE OF IDAHO, IN AND FOR FRE ONT Cr~~;N I i1013 ) FLYING "A" RANCH, INC. an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY NEDROW, ) and DAVID TUK NEDROW ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity Respondents. ) ) ) ) ) ABBIE MACE, CL Case No. NOTICE OF LODGING Notice is hereby given that on January 15, 2013, the Clerk's Record (X), Reporter's Transcript ( ) in the above referenced appeal was lodged with the District Court Clerk. Abbie Mace Clerk of the District Court /~ b,a&!&AJ ~ laUr;~ngleton Deputy Clerk VI Page 43 of 408FLYING A RANCH, INC., ET AL. vs. FREMONT COUNTY BOARD OF COMMISSIONERS, ET AL. ) ) ) ) ) L ·-------~~~ . .:J:"r::..::>.:._· ~., '·. ___ _J NOTICE IS HEREBY GIVEN that the above-entitled case is hereby set for: Hearing Judge: Courtroom: Motion For Partial Summary Judgment Tuesday, February 26,2013 at 03:00PM Gregory W. Moeller I certify that copies of this Notice were served as follows on January 25th, 2013. Attorney's will please notify clients of court date(s), time(s) and location(s). PlaintifPs Counsel: Lynn Hossner Defendant's Counsel: I 09 North 2nd West St. Anthony ID 83445 Mailed ____:i,__ Blake G. Hall Attoney At Law 490 Memorial Drive P.O Box 51630 Idaho Falls, Id. 83405-1630 MailedL Dated: January 25th, 20 I 3 Abbie Mace Clerk Of The District Court By: Page 44 of 408DISTRJCT SPIEN COtn:;T C;.n.:nty of Fremont St8te ot idaf-1o Fued: fN THE DISTRICT COURT OF THE SEVENTH J DICiifrmffiFfF~H:=~-THE STATE OF IDAHO COUNTY 0 FRE DISTRICT COURT 2 2 ?.013 I -@i. J By: __ A_B -l;I}J-.EI#MrAC_E_, -C;::::-LE-. ~-.~-., -. -.__ ___ ---.:, _ ____:D~·:t:.f· :.:.:_·· L_::Y ~· TYPE OF HEARING: LAW AND MOTION GREGORY W. MOELLER JANUARY 22,2013 PRESIDfNG JUDGE: DATE: ATTORNEYS PRESENT: COURT REPORTER: CLERK: DAVE MARLOW DEBORAH MACE 257 FLYING A RANCH VS FREMONT COUNTY BOARD OF COMM. E.C GWALTNEY VS FREMONT COUNTY BOARD OF COMM. MR HOSSNER APPEARS ON BEHALF OF FL YfNG A RANCH MR HALL APPEARS ON BEHALF OF BOARD OF COMMISSIONERS MR LEWIES APPEARS ON BEHALF OF PETITIONERS. THE COURT COMMENTS ON MOTIONS. WILL TAKE UP REPRESENTATION ISSUES. THE COURT ASKS MR LEWIES AS TO SEEKfNG TO WITHDRAW AS COUNSEL FOR PETITIONERS. STATES COUNSEL ON FL YfNG A MR HOSSNER WILL STEP fN ON THAT CASE. ON GWALTNEY HAS NOT HEARD BACK FROM THAT PLAfNTIFF THE COURT ASKS AS TO MOTION TO DISQ. MR LEWIES WILL NOT REPRESENT FREMONT COUNTY OR PETITIONERS ON THESE CASES. FEELS MOTION TO WITHDRAW WOULD BE FfNE. THE COURT CLARIFIES CASES. ARE PETITION FOR JUDICIAL REVIEW CASES. THE COURT ASKS MR LEWIES WHY THESE CASES WERE FILED WHEN HE KNEW HE WOULD NOT BE ABLE TO TAKE THESE CASES. MR LEWIES STATES TIME WAS OF THE ESSENSE AND DID NOT SEE ANY PROBLEM WITH THAT. HIS CLIENT KNEW HE WOULD NOT BE ABLE TO TAKE CASES. 304 THE COURT IS TAKEN ABACK AS TO HOW THESE CASES WERE FILED. MR LEWIES STATES NO RULE OF PROFESSIONAL CONDUCT -----...l Page 45 of 408WAS BREACHED. WAS UP AGAINST A DEADLINE. THE COURT WANTS TO KNOW WHY MR HALL HAD TO FILE A MOTION TO DISQ. 307 MR HALL WANTS TO MAKE SURE TIME LINE IS ACCURATE. COMMENTS ON FILING DATES. 316 THE COURT WILL ALLOW MR LEWIES TO RESPOND ON REPRESENT A TIONAL ISSUE. MR HOSSNER ON MOTION TO DISMISSAL MR LEWIES DOES NOT FEEL MR HALL SHOULD BE REPRESENTING FREMONT CO. GIVES REASONS. COMMENTS ON FINDING OF NEC. STATES BILLIE SIDDOWA Y SHOULD BE REPRESENTING FREM. COUNTY. 324 THE COURT COMMENTS ON CONCERNS OF RULING FROM THE BENCH ON THESE MATTERS. GIVES CONCERNS. THE COURT STATES MR LEWIES SHOULD HAVE NO ROLL IN THESE CASES WHAT SO EVER IN THESE CASES. DOES NOT FEEL MR HALL SHOULD NOT HAVE HAD TO FILE A MOTION IN THESE CASES. THE COURT WILL ALLOW MR LEWIES TO WITHDRAW AND NOT TO HAVE ANY INVOLVEMENT IN THESE CASES. THE COURT WILL ORDER ATTORNEY FEES FOR THE COUNTY. MR HALL MAY MAKE THAT REQUEST. WILL NOT BE AGAINST THE PETITIONERS BUT AGAINST MR LEWIES. MR LEWIES MAY CONTEST THE ISSUE OF MS SID DOW A Y REPRESENTING THE COUNTY NEEDS TO BE BRIEFED MORE. MR HOSSNER ON MOTION FOR PARTIAL DISMISSAL. 330 MR HOSSNER COMMENTS. MOTION FOR PARTIAL DISMISSAL-THE COURT WILL MR HURT AND MR MILLER BOTH SHALL BE DISMISSED INDIVID. AS RESPONDANTS IN THESE CASES. ISSUE OF LEGAL REPRESENTATION, MR LEWIES CANNOT BE ATTORNEY FOR ANY PARTIES IN THESE CASES. MR HALL WAS JUSTIFYED IN MOTION TO DISQ. COUNTY DOES HAVE A RIGHT TO ATTORNEY FEES. WILL DEFER RULING ON ATTORNEY FEES ISSUE. WILL ALLOW 14 DAYS FOR MR LEWIES OFFICE, THROUGH BILLIE TO FILE APPROP BRIEFING AS TO WHY THEY SHOULD BE CONSID. AS ATTORNYS OF RECORD. AND MR HALL TO FILE RESPONSE WITHIN 17 DAYS. WILL HAVE HEARING ON FEB 26m. MR HALL ASKS AS TO MOTION TO PARTIAL SUMMARY JUDGEMENT THE COURT COMMENTS ON JURISDICTION ISSUE. WILL NOT AWARD ATTORNEY FEES ON PARTIAL SUMM JUDGEMENT MR HALL MAY SUBMIT REQ FOR ATTORNEY FEES. WILL ALLOW MR LEWIES TO RESPOND TO THAT. MR HALL ASKS AS TOMS SID DOW A Y OR WHO EVER TO FILE A MOTION. THE COURT DOES NOT FEEL A MOTION IS NEC. WANTS BOTH SIDES TO SUMIT LEGAL ARGUMENT. Page 46 of 408Lynn Rossner Attorney at Law Idaho State Bar No. 1074 109 North Second West St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Plaintiffs -------~~:::_-_~-""--.--~~ IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) LAURA PICKARD, CLAY PICKARD, GEORGE ) TY NEDROW, and DAVID TUK NEDROW, ) ' Petitioners vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision ofthe State of Idaho, RONALD "SKIP" HURT, individually and in his individual capacity, and LEROY MILLER, individually and in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 ANSWER TO PARTIAL MOTION TO DISMISS Comes now Lynn Rossner, attorney for Plaintiffs, and in answer to Defendants' Partial Motion to Dismiss, alleges as follows: RESPONSE TO MOTION FOR PARTIAL DISMISSAL Commissioners Hurt and Miller were named in their official capacity as well as individually. Plaintiffs allege, in their Petition for Judicial Review of the "Boards" action on October 29, 2012 in passing Ordinance No. 2013-01 and the adoption of an Official Road Map, that the public hearings and lack of specific Findings of Fact do not support the findings. In this case, commissioners' Miller and Hurt are the individuals who passed the adoption of the Official Road Map and passed Ordinance No. 2012-01. If it is determined that the legal process was not adhered to as required by law, then plaintiffs claim they were damaged not only by the commissioners in their individual capacity, but also by the named commissioners. It is text book law that if a party "may" be affected by a judgment in an action that those parties should be included and are "proper parties." 59 Am. Jur. 2d, Parties, paragraph 8. By joining the commissioners individually, litigation is kept at a minimum, with the rights of all Page 1 of 2 I Page 47 of 408persons who have an interest or are concerned may be determined by one action. 59 Am. Jur. 2d, Parties, paragraph 8. RESPONSE TO MOTION FOR ATTORNEY FEES There is nothing in Defendant's Petition for Partial Dismissal to indicate that the above action brought against the two named commissioners in "bad faith, frivolous or unjustified" as urged by defense counsel which merits an award of attorney fees. The Motion for Partial Dismissal brought by defense indicates plainly in the first paragraph that "Come now Respondents, Board of County Commissioners for Fremont County, Idaho, Ronald "Skip" Hurt and Leroy Miller, .... " There is no indication that defense counsel is acting for commissioners Hurt and Miller individually. DATED this 22nd day of January 2013. Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on January 22, 2013, I served a true and correct copy of Plaintiffs Response to Partial Motion to Dismiss as follows: Blake G. Hall, Esq. 490 Memorial Drive P.O. Box 51630 Idaho Falls, ID 83405-3001 METHOD OF SERVICE: []Mailed [X] Hand Delivered [] Facsimile Page 2 of 2 Page 48 of 408Blake G. Hall Nathan R. Starnes NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 (208) 522-3001 (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents { ...,. 'T SE"EN COURT D'STniG -" t Idaho 1 nt State o County ot Fremo -Filed: r JAN 3 0 20\3 j ASBIE MACE, CLERK By: ~'ll i ' ~!-·~· ,, D·~:p·.::'J ·-· ·. , J IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. STATE OF IDAHO ) : ss. County of Bonneville ) Case No. CV-12-580 AFFIDAVIT OF ATTORNEY'S FEES Blake G. Hall, being first duly sworn upon oath, deposes and states as follows: 1. That I am an attorney for Respondents in this action. Page 49 of 4082. That our office has spent substantial hours in preparation and attendance of the Motion to Disqualify previously heard by the Court. Said motion was heard by the Court on January 22, 2012, at such time the Court granted Respondents request for attorney's fees. 3. That Respondents have incurred attorney's fees in filing and arguing the Motion to Disqualify in the sum of $1,777.50. Attorney time for Blake G. Hall (BGH) was billed at $225.00 per hour. 4. The following are the entries billed in preparation and argument of the motion to compel: • 12/2112012: BGH • 1/3/2012: BGH • 1/22/2013: BGH Prepare motion to disqualify (2.0); research re: disqualification standards (.7); research re: county prosecutor duties and requirements (.7). Revise and file motion to disqualify Karl Lewies ( 1.0). Prepare for hearing on motion to disqualify (.5); telephone call with L. Hossner concerning pending motions (.3); travel to St. Anthony for hearing (.7); participate in argument on motion to disqualify (1.3); return to Idaho Falls (.7). 5. The attorney's fees incurred by Respondents in the within action were necessitated by Plaintiffs failure to recognize an indisputable conflict of interest with current and future clients given his prior election as the Fremont County Prosecutor. The Motion to Disqualify was not a routine motion and required unique research in its preparation. The time expended in preparing and arguing this motion was reasonable and necessary. Page 50 of 4086. The rates charged Defendant for representation in the within action are reasonable and similar to, or less than, those charged by attorneys with comparable experience and expertise in the vicinity of Fremont County, Idaho. 7. To the best of the moving party's knowledge and belief, the items of fees are correct and in compliance with the Idaho Rules of Civil Procedure and are in compliance with relevant case law and statute. DATED this .J.~ day of January, 2013. 4--SUBSCRIBED AND SWORN to before me this ~ day of January, 2013. Residing at: ~ ~ , rD Commission expires: ~(/l._!t::_:_o+{__:_:'t'~----Page 51 of 408CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this ----t:1.S_ day of January, 2013, by the method indicated below: Karl H. Lewies, Esq. 343 E. 4th N. , Suite #125 Rexburg, ID 83440 Lynn Hossner 1 09 North Second West St. Anthony, Idaho 83445 [ {Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail [;(Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail L:\BGH\7525 -Fremont County files\7525.18 Flying A Ranch\Pleadings\Defendant's\DQ Attorneys Fee Affidavit.docx Page 52 of 408 SE\/EN COURT C'Q' }'~Y of Frernunt State of ldaro '""":!,~ N 3 1 1"13 Jl Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 L -0-~-,_~--~-··--~~- . ABBIE MACE, CLE! ,., .. F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 By: ~' Li C. ·•yr'""l"vk ·epL,, ._. t., IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV -12-580 S COMES NOW Karl H. Lewies, Esq., in his individual capacity and respectfully objects to the Court's award of attorney's fees to Respondents' counsel, on the following grounds: 1. On November 11, 2012, Karl H. Lewies ("Lewies") accepted the representation of OBJECTION TO ATTORNEY'S FEES- 1 Page 53 of 408Petitioners to complete1 on their behalf the filing of a petition for judicial review pertaining to their private road. 2. On January 2, 2013, Blake Hall, Esq. ("Hall"), or his representative, telephonically scheduled a court hearing on his forthcoming motion to disqualify counsel.2 3. On January 7, 2013, Lewies, filed a motion to withdraw from his representation of Petitioners, citing afuture conflict of interest that would arise, "[e]ffective January 14, 2013 .... " 4. Also on January 7, 2013, Hall filed his motion to disqualify Lewies stating in relevant part, "While [Lewies] does not currently have a conflict of interest, on January 14, 2013, Mr. Lewies will have a conflict of interest .... "3 5. On January 22,2013, the Court granted Lewies' motion to withdraw.4 6. Also on January 22, 2013, however, the Court ordered Lewies to pay attorneys' fees to Respondents' counsel, Hall, on the grounds that, "Mr. Hall should not have had to file his motion to disqualify. Your actions, Mr. Lewies, put everyone injeopardy." 7. Yet, Hall did not have to file his motion to disqualify at all. A simple, courteous 1 "Complete" is explained by the Idaho Rules of Professional Conduct ("IRPC") Rule 1.16, Comment 1, as, "Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been completed." Here, the Petitioners wanted Lewies to quickly file a petition for judicial review in order to meet a rapidly approaching 28-day deadline for filing such a petition, under I. C. § 40-208. Petitioners and Lewies first communicated on November 20, 2013, just two (2) business days before the time for filing a petition was to expire. Under IRPC 1.3, Lewies acted diligently to "pursue the matter on behalf of the client despite personal inconvenience." 2 At no time prior to telephonically scheduling a court hearing on his forthcoming motion to disqualifY did Hall make any effort whatsoever to confer with Lewies. Analagous to the discovery rules, if Hall had "in good faith conferred or attempted to confer" with Lewies "in an effort to secure disclosure without court action," he would have been informed that Lewies would seek to withdraw prior to any actual conflict of interest arising, and therefore, there would be no reasonable basis in law or fact for Hall to file a motion to disqualifY. 3 Hall had no reasonable basis, in law or fact, for filing a motion to disqualifY Lewies since in his own motion he admitted "Mr. Lewies does not currently have a conflict of interest .... " 4 CD recording of court hearing held January 22, 2013, where District Court Judge Gregory Moeller is heard saying, "The Court allows Mr. Lewies to withdraw." (CD recording at 31:00 minutes.) OBJECTION TO ATTORNEY'S FEES- 2 Page 54 of 408telephone call by Hall to Lewies prior to filing his motion could have quickly resolved any doubt whether Lewies intended to continue representation, or withdraw. But, Hall made no such "reasonably inquiry"5 prior to filing his motion; rather, he interposed his disqualification motion for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. "6 8. Whereas, the Court "allowed Mr. Lewies to withdraw,"7 it must find that Lewies was the prevailing party. 9. The Court may award attorneys' fees only upon a finding that "the nonprevailing party acted without a reasonable basis in fact or law." I.C. § 12-117. In this instance, Hall was the nonprevailing party. 10. Imposition of attorney's fees against a prevailing party is an abuse of discretion. 11. The Court should find that Hall's motion to disqualify was without a reasonable basis in fact or law, and was interposed for the improper purpose of harassing Lewies, contrary to Idaho Code§ 12-117 and Rule 11(a)(1) of the Idaho Rules of Civil Procedure, respectively.8 12. Alternatively, if the Court reverses its existing ruling in this matter, and rather than allowing Lewies to withdraw as it has already done, decides to grant Hall's motion to disqualify Lewies, then the Court should not allow the amount of attorney's fees requested by Hall in his Affidavit of Attorney's Fees because of the following: 5 See, IRCP Rule ll(a)(l). 6 The Court, itself, noted on the record that, "It's time to end the pettiness." (CD recording at approximately 43:45 minutes.) 7 See, footnote 4, supra. 8 When Hall filed his motion to disqualifY Lewies, on January 7, 2013, the undisputed fact is that Lewies had no current conflict of interest. Further, Hall had failed to cite any legal or ethical violation by Lewies that had actually occurred at the time he filed his motion to disqualify. Therefore, Hall's motion was obviously not well grounded in fact, after reasonable inquiry; and was not warranted by any existing law. See, IRCP Rule ll(a(l). OBJECTION TO ATTORNEY'S FEES- 3 Page 55 of 408a.) Hall was employed by Fremont County, Idaho as a salaried deputy prosecuting attorney through January 14, 2013; b.) Hall's Fremont County salary was $805.94/week; c.) Based on a 40-hour work week, Hall was earning $20.13/hour while employed by Fremont County, not $225.00/hour; d.) According to ,-r4 of Hall's own sworn affidavit, he billed Fremont County 3.4 hours on 12/21/2012 at the rate of$225/hr. for a total of$765.00, and he billed Fremont County 1.0 hour on 1/3/201[3] at the rate of$225/hr. for a total of$225.00; f.) According to Hall's own sworn affidavit, he billed Fremont County an extra $990.00 on top of his regular county salary. 12. The Court should disallow Hall's request for attorney's fees during the period of time during which he was employed by Fremont County as a salaried attorney. 13. This objection is based on the record and the affidavits of Karl H. Lewies and Kristina Larson, filed herewith. DATED this 31st day of January, 2013. KARL H. LEWIES, PLLC Karl H. Lewies, Esq. OBJECTION TO ATTORNEY'S FEES- 4 Page 56 of 408CERTIFICATE OF SERVICE I hereby certify that I am a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the 31st day of January, 2013, I caused a true and correct copy of the foregoing OBJECTION TO ATTORNEY'S FEES to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Blake G. Hall, Esq. NELSON, HALL P.O. Box 51630 Idaho Falls, ID 83405-1630 DATED this 31st day of January, 2013. OBJECTION TO ATTORNEY'S FEES- 5 [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile ;0d~ Karl H. Lewies, Esq. Page 57 of 408• Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 • DISTRICT SEVEN COU~T County of Fremont State ot idaho Filed::.======:::;--JAN 3 1 2013 IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. STATEOFIDAHO ) ) ss: County of Fremont ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 AFFIDAVIT OF KRISTINA LARSON Kristina Larson, being first duly sworn upon oath, deposes and says: 1. I am employed by Fremont County, Idaho, in the county clerk's office. 2. I make this affidavit upon my personal knowledge. 1 - AFFIDAVIT OF KRISTINA LARSON. DOCUMENT SCANN~D Page 58 of 4084. Blake Hall was employed by Fremont County as a deputy prosecuting attorney and paid an annual salary of$39,413. 5. From December 30, 2012, through January 12, 2013, Fremont County paid Blake Hall a bi-weekly amount of$1,611.88. 6. A copy of the payroll information is attached hereto as Exhibit "A," and incorporated herein by this reference. DATED this 31st day of January, 2013 2 -AFFIDAVIT OF KRISTINA LARSON. Page 59 of 408Exhibit 11A" Payroll Information (Fremont County's Deputy Prosecuting Attorney- January 2013} Page 60 of 40801/31/2013 15:17:00 FN504 KRISTINA LARSON FREMONT COUNTY PAGE 1 FISCAL YEAR 2013 FROM 0110112013 TO 09/30/2013 FUND 0008 DEPT 0001 FUND 0008 JUSTICE FUND -01 PROSECUTING ATTORNEY ----------PAYMENT----------Acct No. Acct Description I Vendor Name Payment For Invoice No. Warrant No. Date Amount . - ... ::::::::::::::.::::::::::::::::.::::::::::: ~--:.- ------:::::::::::.:::::::::::::::::::::::---- :: -.::::::::::::::-::::.::::::::::.::::::::.::::::::::::::::::.::::::::::::::::::.:.:::::::::::.:;:::::::::::::::::::::::::::::::.::::::::::::::::::::::::::::::::::::::::::::::::.:::::::::::::::.:::::::::::::::::::::::::::::::: 0401-0000 SALARIES-OFFICER 0402-0000 CHIEF DEPUTY 0402-0001 SALARIES-ADMIN ASSISTANT 0402-0002 DEPUTY-CRIMINAL 0402-0003 DEPUTY CIVIL 0406-0001 PARALEGAL *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL - EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL-EXPENSE *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* *PAYROLL* 01/03/2013 01/17/2013 01/31/2013 AcctTotal: 01/03/2013 01/17/2013 01/31/2013 01/03/2013 01/17/2013 01/31/2013 01/03/2013 01/17/2013 01/31/2013 01/03/2013 01/17/2013 Acct Total: 01/03/2013 01/17/2013 01/31/2013 Acct Total: 3,326.35 3,326.35 3,326.35 -------------------------9,979.05 9,979.05 96.15 115.39 96.15 -------------------------307.69 293.76 293.76 257.04 844.56 1,515.88 1,515.88 1,515.88 ----------------4,547.64 1,515.88 1,819.06 ------------------3,334.94 9,034.83 1,555.19 10,959.29 1,509.62 14,024.10 " ** " * ** 14,024.10 ** Page 61 of 40801/31/2013 15:17:00 FN504 KRISTINA LARSON FREMONT COUNTY EXPENDITURE ACTIVITY DETAIL FISCAL YEAR 2013 FROM 01/01/2013 TO 09/30/2013 FUND 0008 DEPT 0001 FUND 0008 JUSTICE FUND -01 PROSECUTING ATTORNEY AcctNo. Acct Description I Vendor Name Payment For Total 'D' Expenses- (Benefits): 0439-0000 TRAVEL- OTHER BANK OF IDAHO- CARDMEMBER SERVICE 0440-0000 SUPPLIES - OFFICE JOETTE L'S CARD@ THE HICKORY ALSCO INC FLOOR MAT ROTATION 4 X 6 MATS THOMPSON WEST PAYMENT CENTER ARREST LAW BULLETIN 0559-0000 MISC. EXPENDITURE Invoice No. 4798 5100 4209 9065 LBLA 1302362 JENSEN, CAROL A. NALA PAYMENT CENTER NALA CONTRACT MANAGEMENT COURS NALA PARALEGAL CERTIFICATION D Total 'B' Expenses-- (Other Expenses): 0806-0000 CAPITAL- OFFICE EQUIPMENT LOOKABAUGH, JOETTE REIMBURSEMENT FOR TABLE & MICR Total 'C' Expenses -- (Capital Outlay): DEPTARTMENT TOTALS: Total 'A' Expenses-- Salaries: Total 'D' Expenses -- Benefits: Total 'B' Expenses-- Expenses: Total 'C' Expenses -- Capital Outlay: 33,037.98 7,854.71 488.35 300.00 41,681.04 PAGE 3 ----------PAYMENT----------Warrant No. Date Acct Total: 7,854.71 2013-0002619 01/11/2013 Acct Total: 2013-0002651 01/14/2013 2013-0002684 01/14/2013 Acct Total: 2013-0002472 01/07/2013 2013-0002474 01/07/2013 Acct Total: 488.35 2013-0002473 01/07/2013 Acct Total: 300.00 Dept Total: Amount 175.22 .... 27.34 ~ ~ .. - .. -------27.34 .. 27.34 .... 44.22 41.79 ----------------------------86.01 86.01 .... 250.00 125.00 ------------375.00 .. 375.00 300.00 300.00 .. 300.00 .... 41,681.04 Page 62 of 408• Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Idaho State Bar No. 4380 • DISTRICT SEVEN COURT County of Fremont State of Idaho Filed: JAN 3 1 2013 By: ABB~E, CLERK / Deputy Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. STATEOFIDAHO ) ) ss: County of Fremont ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 AFFIDAVIT OF KARL H. LEWIES Karl H. Lewies, being first duly sworn upon oath, deposes and says: 1. I make this affidavit upon my personal knowledge. 1 - AFFIDAVIT OF KARL H. LEWIES - JANUARY 31, 2013. Page 63 of 4082. On November 20, 2012, Clen Atchley telephoned me saying he "had a project that had to be done right away." 3. In discussing the matter with Mr. Atchley, it became apparent that he was facing a strict 28-day deadline for filing a petition for judicial review and that such time period would expire in two (2) business days. 4. Knowing that I had special expertise in filing petitions for judicial review, and recognizing that Mr. Atchley was in need of urgent legal assistance, I accepted representation for the limited purpose of filing the petition for judicial review to preserve his legal rights. 5. Once I reviewed the official road map, I determined that a private road belonging to some close friends of my family, namely petitioners E.C. Gwaltney, III, of Alexander City, Alabama and Lana Varney, a partner in the Houston, Texas law firm of Fulbright & Jaworski, had also been listed by Fremont County as a public road, contrary to the law and facts of the matter. Accordingly, I contacted my friends notifying them of the looming expiration of time to file a petition for judicial review. They promptly asked me to prepare and file a petition for judicial review to preserve their legal rights. 6. On November 23,2013, I filed petitions for judicial review in Fremont County cases CV-12-580 and CV -12-581, just one (1) day before expiration of the 28-day time for filing. 7. On January 7, 2013, I filed a motion to withdraw from representing petitioners in both pending cases, CV-12-580 and CV-12-581. 8. Also on January 7, 2013, Blake Hall, Esq., of Idaho Falls, Idaho, filed a motion to disqualify me from representing petitioners in the two above-referenced cases. 9. Prior to filing his motion to disqualify me, Blake Hall, made no good faith effort to confer, or attempt to confer, with me to determine whether I intended to withdraw from representing the petitioners once I was sworn-in to office as the elected prosecuting attorney for Fremont County. 10. I believe that Blake Hall filed his motion to disqualify me for an improper purpose, to harass me. 11. Indeed, following the court hearing on these matters held January 22, 2013, District Judge Gregory Moeller, invited me into his chambers and told me he was aware of the ongoing bitter personal disputes among my predecessor-in-office, Joette Lookabaugh and 2 - AFFIDAVIT OF KARL H. LEWIES - JANUARY 31, 2013. Page 64 of 408her deputy prosecutor, Blake Hall, and myself. Judge Moeller advised me that everyone would be better off if the disputes ended. DATED this 31st day of January, 2013 ;04~ Karl H. Lewies SUBSCRIBED AND SWORN to on oath before me this 31st day of January, 2013. ·········· '~ .... .... / ·, / <1\C\A L. S •••• I ____) h . ~ . .. . . / .... ,::. .. •• ··~/.)>"·.. -- '--:-_:__ -- . \_ __ /_~ - --. /~:·~oTAJ( ··.'),.\ ~ ./>)·/ F)~~ ! :' r : ! NOTARY PUBLIC " -•- ' " / _ I 1\ ~ * :. p C .: * j Residing at:.sf. f~-vt---~-tw-"'2-0 1 'fj u ~ •• VBL\ · : · \ t.P.?>··. ..-"o / My comm. expires: cJ--.-/1 51= ••• <1 r:· ....... \l"-~ •• • •••• l? OF \U ••• • ················· 3 -AFFIDAVIT OF KARL H. LEWIES - JANUARY 31, 2013. Page 65 of 408~ MADISON COURTS 2083585425 (TUE)FEB 5 2013 10:28/ST.10:24/No.7518178080 P 1 MAmSON C)'Ulf!."l, !1.: ·. i:lv,, __ _ Fl .. YING"A" RANCH, INC., an Idaho ) corporation, CL.EN ATClfl..EY, EMMA ) ATCHLEY, LAURA PICKARD, CLAY ) PICKARD, G~ORGE TY NEDROW, and ) Case Nos. CV-12-580 & CV·l2-581 DA VJD TUK NEDROW, ) ) Petil.ioners, ) ) ORDER ON MOTIONS TO: v. ) ) BOARD OF COUNTY COMMISSIONERS ) 1) DISQUALIFY COUNSEL, 2) WJTHDRA W, AND FOR FREMONT COUNTY. IDAHO, a ) political subdivision of the state of Idaho, ) 3) DISMISS INDIVIDUAL RESPONDENTS. RONALD "SKIP'' HURT, individually and ) in his ofticial capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) E.C. GWAL ThJEY, III and ) LANA K. VARNEY ) ) Petitioners, ) ) v. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state of Idaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) On November 23, 2012, Karl H. Lewies filed Lwo petitions for judicial review of decisions made by the Fremont CounLy Board of Commissioners ('~he County''). The petitions were filed on behalf of various individuals and one corporation identified in the c.:apLion ("Petitioners"). At the time Mr. Lcwies filed these petitions, he was the prosecutor-elect for Fremont County, having been duly elected in the general election on November 6, 2012. Mr. ORDER ON MOTIONS -- Page 1 Page 66 of 408FROM MADISON COURTS 2083585425 (TUE)FEB 5 2013 10:28/ST.10:24/No.7518178080 P 2 Lewies ran unopposed in the general election. havin2. defeated the incumbent Fremont County prosecutor in the primary eJection on May Is. 2012. Mr. Lewies had not yet taken office when he tiled the petitions; he was sworn in on January 14,2013. On January 2, 2013, Fremont County, through Blake Hall, its then deputy prosecutor, tiled a motion seekjog to disqualify Mr. Lewies from representing Petitioners against the County. Mr. Hall also filed a motion for partial dismissal of the individual claims against the commissioners. Mr. Lcwies then filed a motion to withdraw on January 7, 2013. On January 14, 2013, after a substitution of counsel was signed, Lynn Rossner appeared on behalf of Petitioners Flying'"A" Ranch, Inc., Clen Atchley, Emma Atchley, Laura Pickard. Clay Pickard, George Ty Nedrow, and David Tuk Nedrow in Case No. CV-12-580. As of the date of the hearing, no other attorney had appeared on behalf of the Petitioners in Cast: No. CV·l2-581. Oral argument took place on January 22, 2013. The Court noted that Mr. Lewies had failed to withdraw voluntarily until the County had filed its motion to disqualify him. It also questioned the wisdom and ethics of filing actions against an entity he had just recently been elected to reptesen.t on behalf of clients he could no longer represent. Mr. Lcwies attributed the delay to an oversight and argued that no rule of professional conduct wa..:; violated. He claimed that his clients were operating under time constraints due to the statute of limitations. He agreed that he should no longer represent his 1onncr clients or the County on these matters in the future. Mr. Lewies questioned the authority of Mr. Hall to file any motions or argue on behalf of the County. Mr. Hall responded by noting that he was still an acting deputy prosecutor for the County when he filed his motions and that he is now acting under a contract with the County Commissioners. The Court noted that Mr. Lewies' actions had essentially deprived the County of legal counsel in this matter. Mr. Lewies asserted that his newly appointed deputy prosecutor, Billie Siddoway, could take over his representation of the County in this matter. Mr. Hall disagreed and ao;;ked tor attorney fees incurred by the County in filing both motions. Mr. Hall also addressed his motion tbr partial dismissal. arguing that the County Commissioners could not be sued "individualJy." The Court questioned Mr. Lewies and Mr. Hossner as to the appropriateness of making claims against elected officials individually in a petition for judicial review wtder I.RC.P. 84. After considering the pleadings and arguments of counsel. the Court ordered as follows: ORDER ON MOTIONS ·- Page 2 Page 67 of 408.---------------------------------------------FROM MADISON COURTS 2083585425 (TUE)FEB 5 2013 10:28/ST.10:24/No.7518178080 P 3 1. Noting its stron.~~t disagreement with Mr. Lewies' action~ in tn1~:. m~tter. the Cnuri hereby bars Mr. Lewies from further representing Petitioners or Respondents in these matters. 2. The motion for partial dismissal of the named County Commissioners as individual Respondents is hereby granted. Neither Mr. Lcwies nor Mr. Hossner could articulate a factual or legal ba.~is tor bringing individual claims against the commissioners via a petition for judicial review. Future pleadings shall contain a correct caption, removing the words "individually and" after each commissioner's name. 3. The Court concludes that the County is entitled to recover its attorney fees incurred in filing the motion to withdraw. Any fees will be awarded against Mr. Lewies personally, but not against his clients, the Petitivners. Mr. Hall may file a request for fees with appropriate supporting documents within 14 days. Mr. Lcwies will be allowed to appear tbr purposes of contesting the attorney fees only. 4. The Court concludes that the inclusion of the individual claims against the commissioners in the caption was likely an oversight that could have been cleared up without tiling a motion. Thcrelbre, no fees will be assessed at this time. 5. If Ms. Siddoway wishes to assert the position that she should be pem1itted to represent Fremont County on these matters, ruther than an attorney of the Commissioners' choosing, she may ti.le an appropriate motion within 14 days. Mr. Hall will be allowed to respond within 7 days. 6. All pending matters (attorneys 1ees against Mr. Lcwics and Ms. Siddoway's eligibility to represent the County in this matter) will be taken up on February 26, 2013, at 3:00p.m. 7. This order is effective immediately; however, the Court is willing to reconsider any portion ofthe order during the hearing on February 26,2013. 8. Inasmuch as the Court does not possess the individual addresses of Mr. Lewies' unrepresented, fanner clients in Case No. CV-12-581., he shall provide a copy of this order to each of them as soon a" possible by certified mail, and submit proof of mailing to the Court. SO ORDERED thislst day of February, 2013, nunc pro tunc January 22, 2013. ORDER ON MOTIONS -- Page 3 Page 68 of 408FROM MADISON COURTS 2083585425 (TUE)FEB 5 2013 10:30/ST.10:24/No.7518178080 P 4 CERTIFICATE OF SERVICE T HEREBY CERTIFY that a true and correct copy of the foregoing ORDER WdS this f'!!""'tl"" . _o __ day of february, 2013, sent via US mail to the following individuals: Karl H. Lcwics Billie Siddoway Fremont County Prosecuting Attorneys Office 22 w. 1St N. Sr. Anthony, Idaho 83445 Blake Hall :P.O. Box 51630 Idaho Falls, Idaho 83405 Lynn Hossner 109 North 2"d West St. Anthony, ID 83445 Board of Commissioners for Fremont County c/o County Clerk 151 W.N. St. Anthony, Idaho 83445 By: ORDER ON MOTIONS -- Page 4 Page 69 of 408Feb 06 2013 0!5:39PM Siddoway Law Office, PLLC 208-3!54.0440 Billie J. Siddoway (ISB No. 6628) bsi.ddowa.y@co.fremont.id.us OFFICB Of THE FREMONT COUNTY PROSECUTOR 22 West 1st South St. Anthony, ID B3445 Tel: 208-624-4418 Fax: 208-624-3404 P•se 1 DISTF<:CT SEVEN COURT Cou!1ty of Fremont State of Idaho F11eo.:r ============::::;--l_ FEB - 6 2013 ABI.:l!E-MACE:'CLER_K_ ;~}1, By: _________ _ DepL;ty Cie:k: IN THE SEVENTH JUDICIAL DISTRICT COURT FREMONT COUNTY, STATE OF IDAHO FLYING A RANCH, INC. et al, Plaintiffs, v. FREMONT COUNTY BOARD OF COMMISSIONERS, ,, a/., Defendants. E.C. GWALTNEY, III, et aL, Plaintiff, v. FREMONT COUNTY BOARD OF COMMISSIONERS, et ai., Defendants. STEPHEN A. HUBER, 111 al., Plaintiff, v. FREMO~T COUN1Y BOARD OF COMMISSIOKERS, et al., Defendants. 1 Case Nos. CR-2012-580, CR-2012-581, CR-2011-215 NOTICE OF CONFLICT OF INTEREST Page 70 of 408Feb 06 2012 0!5:29PM Siddoway Law Offic:e, PLLC 208-2!54..0440 pas• 2 I respectfully submit this notice in response to the Court's request fat briefing of January 22, 2013. A conflict of interest under Rule 1.7 of the Idaho Rules of Professional Conduct prevents me &om taking a position adverse to the decision of the Fremont County Commission to retain outside counsel in thi3 matter. I have provided legal advice to the Fremont County Commiesion on the matter of retaining outside counsel and, while I do not represent the County in this mAtter, I consider the County to be a "cuttent client" as that tetm is used in Rule 1.7. Respectfully submitted this 6th day of February, 2013. OFFICE Of TI-IB FREMONT COUNTY PROSBCl:TOR 2 NOTICE OF CONFLICT OF INTEREST Page 71 of 408Feb 06 2013 0~:39PM Siddoway Law Offic:e, PL.LC 208-3!54-0440 p•s• 3 CERTIFICATE OF SERVICE The undersigned hereby certifies that on February 6, 2013, a true a.nd cottect copy of the fotegoing was caused to be sent by U.S. Mail, postage prepaid, to the following: Blake Hall NeLson Hall ParryTucket, P.A. 490 Memorial Dtive Idaho Fa.llil, ID 83402 Lynn Hossner 109 North 2nd West St. Anthony, ID 8l445 3 NOTICE OF CONFLICf OF INTEREST Page 72 of 408Blake G. Hall, Esq. Nathan R. Starnes, Esq. NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorneys for Respondents DISTRICT SEVEN COURT County of Fremont State of Idaho Filed:i=======:::;--FEB - 6 2013 ABBIE rv~, CLERK By: ____ ..e:.:.z.U.J?\4 -=--__,.--Deputy Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 NOTICE OF HEARING I PLEASE TAKE NOTICE that on the 26th day of February, 2013, at 3:00p.m., of said day, or as soon thereafter as counsel can be heard at the Courthouse, in Fremont County, Idaho, Defendants' Partial Motion to Dismiss will be brought on for hearing before the Honorable Gregory W. Moeller. NOTICE OF HEARING - 1 Page 73 of 408DATED this___£____ day of February, 2013. CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this___£____ day of February, 2013 by the method indicated below: Lynn Hossner, Esq. 109N2ndw St. Anthony, ID 83445 NOTICE OF HEARING - 2 ~ Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail Page 74 of 408Blake G. Hall, Esq. Nathan R. Starnes, Esq. DISHiiCT SE'/f::.N COURT County of Fremont State of Idaho NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive Filed::.=================;--P. 0. Box 51630 FEB - 6 2013 AB~ACE,CLERK Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents By: __ ...~.LJ~ h~l),l.----;::;:-:-::-:-:T.:""~::i7 Deputy C!erk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 MOTION FOR PARTIAL DISMISSAL COME NOW Respondents, Board of County Commissioners for Fremont County, Idaho, Ronald "Skip" Hurt and Leroy Miller, by and through counsel of record, and hereby submit this Motion for Partial Dismissal of any challenge to the January 7, 2013 actions of the Fremont County Commissioners based on a lack of subject matter jurisdiction by virtue of the explicit language ofldaho Code§§ 31-1506 and 67-5273. Page 1 Page 75 of 408INTRODUCTION Before the Court is Respondents' Motion for Partial Dismissal of any challenges to the January 7, 2013 Fremont County Commissioners decision to retain Mr. Blake G. Hall and the firm of Nelson Hall Parry Tucker, P.A. to handle four pending lawsuits against Fremont County. An oral motion was made by Fremont County Prosecutor Karl Lewies following a motion by Fremont County to disqualify Mr. Lewies from the above-referenced matter given his concurrent conflict of interest. At the hearing, the Court disqualified Mr. Lewies. Following the order disqualifying Mr. Lewies, the Court entertained a verbal motion by Mr. Lewies, after being disqualified, about Fremont County being represented by Mr. Hall and his law firm in the instant matter. Mr. Lewies mislead the Court by indicating that the County had not retained Mr. Hall. In reality, Fremont County had adopted a resolution on January 7, 2013 to hire Mr. Hall and Nelson Hall Parry Tucker to handle the pending litigation. The Fremont County Commissioners are entitled to retain outside counsel for pending litigation and the instant matter is not a proper forum to challenge a County Commission decision. ARGUMENT 1. There Is Not Subject Matter Jurisdiction To Hear A Challenge To The January 7, 2013 Commissioner's Action. For a Court to issue any binding order, it must have subject matter jurisdiction. "Subject matter jurisdiction is the power to determine cases over a general type or class of dispute." State v. Urrabazo, 150 Idaho 158, 162-63,244 P.3d 1244, 1248-49 (2010) abrogated by Verska v. Saint Alphonsus Reg'! Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011) (quoting Bach v. Miller, 144 Idaho 142, 145, 158 P.3d 305, 308 (2007)). Article V, Section 20, of the Idaho Constitution, provides that district courts "shall have original jurisdiction in all cases, both at law and in Page 2 Page 76 of 408equity, and such appellate jurisdiction as may be conferred by law." Idaho Const., art. V, § 20. Thus, subject matter jurisdiction can never be waived or consented to, and a court has a duty to ensure that it has subject matter jurisdiction over a case. See Urrabazo, 150 Idaho at 163, 244 P.3d at 1249. See also I.R.C.P. 12(g)(4). A judgment or order issued by a court that lacks subject matter jurisdiction is void and subject to collateral attack. !d.; Sierra Life Ins. Co. v. Granata, 99 Idaho 624, 626-27, 586 P.2d 1068, 1070-71 (1978). In order to challenge an action of the county commissioners a petition must be timely filed. The failure to timely file a petition will moot any challenge. Pursuant to Idaho Code § 31-1506, the judicial review of a Commissioners decision must be initiated by the filing of a petition that complies with the Idaho Administrative Procedure Act: Unless otherwise provided by law, judicial review of any act. order or proceeding of the board shall be initiated by any person aggrieved thereby within the same time and in the same manner as provided in chapter 52, title 67, Idaho Code, for judicial review of actions. I. C. § 31-1506(1) (emphasis added). Thus, judicial review of any act, order or proceeding must comply with Idaho Code§§ 67-5201 et seq. A petition that fails to comply with the requirements ofldaho Code§§ 67-5201 et seq. will be denied. Idaho Code §§ 67-5273(3) specifies the time period in which a petition for judicial review of an action must be filed, "A petition for judicial review of a final agency action other than a rule or order must be filed within twenty-eight (28) days of the agency action, except as provided by other provision oflaw." The failure to timely file a petition within the prescribed period of time will render the petition invalid. Page 3 Page 77 of 408The specific challenge raised by Mr. Lewies is to the Commissioners hiring of Mr. Hall to represent the County in four pending civil matters. On January 7, 2013, the Fremont County Commissioners took up the following motion: We currently have three lawsuits pending that are being handled by our civil deputy Blake Hall. They are Flying A Ranch, Inc., et al. v. Fremont County; Gwaltney, III, et al. v. Fremont County; and Stoddard Bros v. Fremont County. Additionally, we have the case of Huber v. Fremont County that Mr. Hall has been our legal counsel. In each of these cases, the incoming prosecuting attorney, Karl Lewies, has a conflict of interest and neither he nor his office can represent us. Therefore, pursuant to our authority under I.C. 31-813, and to ensure continuity in the representation of the County, Commissioner Miller moved that we retain Blake Hall of the firm Nelson Hall Parry Tucker, P.A. to represent us in the above matter commencing on January 16, 2013. Commissioner Stoddard seconded the motion. A full voice vote was heard with all commissioners voting in favor. (Fremont Co. Minutes, January 7, 2013, p. 7, attached hereto as Ex. A). Thus, the failure to file a petition within 28 days of the January 7, 2013 action-or February 4, 2013 is invalid. Moreover, it is important to note that the issues addressed in this proceeding deals with a challenge to the County's classification of a road. The instant petition does not challenge the January 7, 2013 action. No petition challenging the Commissioners decision was timely filed. Challenging a commissioner decision that is completely unrelated to the instant petition is inappropriate. The instant matter is not the proper forum for a challenge to the Fremont County Commissioner's January 7, 2013 action to hire independent counsel and the Court should dismiss any such challenge. 2. The Fremont County Commissioners Can Hire Outside Legal Counsel To Handle Pending Civil Litigation. Notwithstanding the above, the oral motion made by Mr. Lewies is without legal support. The Fremont County Commissioners are entitled to retain outside counsel to address "suits to Page4 Page 78 of 408which the county is a party in interest." I.C. § 31-813. Specifically, Idaho Code § 31-813 specifically vests a board of county commissioners with the right to control who handles civil suits where the county is a party in interest: To direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the prosecuting attorney, as they may direct. (Emphasis added). Pursuant to the unambiguous language of Idaho Code § 31-813, the Fremont County Commissioners have the right to hire counsel to defend the County in civil actions where the County is a party. The language further states that hiring outside counsel does not have to be the prosecuting attorney. Rather, the statute vests the decision solely with the Commissioners-"as they may direct." Jd. In this case, the County specifically determined that, based on the clear conflict of interest, that Mr. Lewies was unable to defend the County in four pieces of pending litigation against the County: Flying A Ranch, Inc., eta! v. Fremont County, Gwaltney, et a!. v. Fremont County, Stoddard Bros v. Fremont County, and Huber v. Fremont County. Given the pending nature of the civil suits and a desire to ensure continuity of the representation of the County, the Commissioner determined that it was in the County's interest to continue to have Mr. Hall represent the County on those pieces of litigation. While there is no statutory requirement that a resolution be adopted prior to hiring outside counsel, the Fremont County Commissioners adopted a resolution further confirming their intentions. In the January 7, 2013 Commissioners meeting, the Fremont County Commissioners took up the issue of hiring Mr. Hall and his law firm, Nelson Hall Parry Tucker, P.A., to continue to represent the County on the four above-referenced matters. Based on the unambiguous authority granted to the Commissioners pursuant to Idaho Code § 31-813, the Commissioners were Page 5 Page 79 of 408entitled to hire Mr. Hall. When the hearing in this matter took place on January 22, 2013, Mr. Hall had been retained to represent the County in the four above actions. Given the appropriate actions taken by the Commissioners to hire Mr. Hall in this matter, any challenge to the Commissioners' actions is without merit. Based on the unambiguous language of Idaho Code § 31-813, the Commissioners acted within the scope of their authority and there is no viable legal grounds to challenge the Commissioners January 7, 2013 action. CONCLUSION Based on the foregoing, the Respondents respectfully request that the Court dismiss any challenge to the January 7, 2013 Fremont County Commissioners action to to employ Mr. Hall and Nelson Hall Parry Tucker, P.A. in the four pending civil actions for lack of subject matter jurisdiction. In the alternative, the Respondents request that the Court find that the Fremont County Commissioners actions were legal and appropriate under Idaho law. DATED this .5' day of February, 2013. ~Hi[~ Page 6 Page 80 of 408CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this__£___ day of February, 2013, by the method indicated below: Lynn Hossner 109 North Second West St. Anthony, Idaho 83445 M [ ] [ ] Mailing Hand Delivery Fax Overnight Mail L:\BGH\7525 -Fremont County files\7525.18 Flying A Ranch\Pleadings\Defendant's\Jurisdiction Challenge (Mot).docx Page 7 Page 81 of 408' . EXHIBIT A Page 82 of 408--JAN. 23. 2013-10: 32AM ' . FREMONT COUNTY St. Anthony, ID Present for the meeting was: Commissioners Skip Hurt, Lee Miller and Jordon Stoddard. Also attended by: Deputy Clerk Laura Singleton, Assessor Kathy Thompson, Sheriff Len Humphries, Treasurer J'Lene Cherry, and Prosecuting Attorney Joette Lookabaugh Commissioner Hurt called the meeting to order and welcomed those in attendance. Extension Agent Lance Ellis offered the prayer. Public Works Director Brandon Hanis led the pledge. Elected Officials & Department Heads Emergency Management Director Keith Richey reported they have been monitoring the rivers tor ice build~up, He has been working in Island Park on sustainable tire issues. He reported the public has been very responsive to this program. Mr. Richey stated he is getting ready to do Hazmat reports. He also stated there is an extra $7,000 available to send Sheriff Humphries' officers to SWAT training. Mr. Richey stated he has also been working on several grants. Five County Juvenile Detention Administrator Nicky Chavez reported they had a bit of a water problem with a broken sprinkler head but everything is deaned up now. They have hired five part time reserve officers and are preparing to send three of their employees to POST. Mr. Chavez stated they are working with PREA. He also reported that there are fourteen kids in treatment with several that have been released. Mr. Chavez gave a quarterly report of the numbers at the facility. He is now preparing for the Five County Board Meeting next week. Extension Agent Lance Ellis reported they have finished up the last of their classes that were taught at 5C. Mr. Chavez thanked lance for sharing his expertise with the student there. Mr. Ellis stated they have been running the Master Gardner Program at the Work Camp. They will start doing projects when the snow is gone in the spring. He would like any suggestions on work they could do in the community to use as service hours. They will start the Master Gardner Program for the people in the community on Jan. 30th. They will be holding a Grain School on Feb. 7th at the Relay Station. Mr. Ellis stated they are hoping to start a new program for people who own small acreage. They would like to be able to teach them ways to farm their land and make money off the ground they own or at least make it productive. He reported on the Designated Surveillance Area Line meeting. This involves testing for brucellosis in cattle. All of Fremont County is in this surveillance area. · 4-H Coordinator Dana Miller stated now is the time she starts to go to the public schools to teach classes to the students. Ms. Miller stated she is traveling to the Capital with a number of students in February to Jearn about government. She reported she received a grant from Walmart and also Northwest Farm Credit. She hopes to buy some seWing machines with the money to teach kids how to sew. Sewer Supervisor Dan Lostutter gave the year-end report for 2011-2012 for the Mack's Inn treatment plant and the Last Chance treatment plant. They have put a hold on working on the Lift Station due to the onset of winter. Hopefully they can start working on it again in June or July. Mr. Lostutter reported on the total number of lines they have cleaned. Mr. Lostutter reported they held two classes last fall. One class was on electrical safety and one was on repairing pipes without having to dig them up. He stated both classes were very good. Mr. Lostutter reported they hired a 1 Page 83 of 408--JAN. 23.2013 10:33AM FREMONT COUNTY St. Anthony, ID NO. 115 P. 3 '* .-·--' ~ 542315 new employee that started today. He also reported snow making season is under way and they have gone from working four days a week to five. Weed Supervisor Brvce Fowler reported they have been working on grants. He has been asked to do a presentation at a conference in Twin Falls. Mr. Fowler stated he will be spending a lot of time in Boise working on getting grants. Mr. Fowler also reported the state is changing things on the aquatics program so he has been working on that. So far Idaho has tested negative for mussels. They have also been working on setting up their new 4-wheelers and equipping them with a GPS system. Assessor Kathy Thompson reported things are going well in her office. The appraisers have been out doing appraisal work. They have gotten a lot of calls regarding personal property and how it is going to affect them. They have had quite a few deeds come through which has surprised her. Ms Thompson stated mapping is going well. They have started some property reductions which usually benefits the older people. She reported the office looks really nice now that all the work has been done. Ms. Thompson stated the Motor Vehicle Department has been very busy. There has been concern about Fremont County not getting all the money for roads when people license their vehicles. They did some checking into this and stated there really aren't very many Fremont County residents who buy their plates in Madison County. Planning and Building Administrator Tom Cluff stated things are going well. November and December were slower like they typically are. They are in the middle of renewing cabin permits. So far there have been no problems. He reported there still are many people who rent cabins but are not getting permits. One of their employees will be cutting back their hours while he is in school. He reported they need to be thinking of people to replace those who are working on the HUO Grant who are leaving office. Commissioner Miller asked Mr. Cluff to check into those people who have moved trailers or mobile homes onto their property by filing for hardship status and see if they still qualify for this. IT Administrator Lisa T umer reported that the tower is now up and turned the rest of the time over to her assistant Josh Warnke to update the commissioners on the status of the rest of the work that needs to be done on the tower. Josh Warnke updated the commissioners on the work that still needs to be done on the tower and how they will be hooking up to all the departments. There has been some concern over radiation levels from the tower. Mr. Wamke stated the radiation level from the tower is very low because the antenna is actually higher. Commissioner Miller asked Keith Richey to check into some kind of funding so we can put a fence around the tower because there could be some safety issues that arise. Public Works Director Brandon Harris reported things are going welt. There haven't been too many complaints as far as plowing goes. He reported the sander went down, so they had to make a quick trip to Twin Falls to get a part. Mr. Harris stated Red Road Is closed now. The crews have been working on shoulder material. The crews will be starting work on the cross cut bridge on Monday (400 North). They will then work on the bridge in Chester. Mr. Harris reported Stonebridge is being redesigned with four foot piers instead of eight foot piers. Hopefully this will bring the cost of the project down. Also the construction window is bigger so that should help lower the price of the bridge. Mr. Harris stated they would like to work on the Salem Highway, but they still need to find help with the funding. Mr. Harris also reported the St. Anthony Landfill Transfer Station design for the landfill should be back this week so they can review it. Juvenile Probation Director Darin Burrell stated they are seeing a lot more marijuana issues and said this was to be expected because of the issues in the surrounding states. He reported that kids are stealing cough medicines now and prescription medications are still an issue. 2 Page 84 of 408-·-JAN. 23. 2013-10:33AM . ~ FREMONT COUNTY St. Anthony, ID NO. 115 P. 4 542315 Treasurer J'Lene Cherrv stated they are winding down on taxes. They have collected close to 62%. They are starting on the warrants. Ms. Cherry stated she will send out reminders first before they send out warrants. She also reminded everyone that credit card bills need to be tumed in by the 12th of the month with receipts. Ms. Cherry reported she is working on a public administrator case and stated it will have to be published in the newspaper before we can do any more with this. She stated she hopes she can close this case out in about a month. She stated her office doesn't have any heat this morning and they have called someone to come check it. Sheriff Len Humphries reported 12 inmates in county custody this morning. There were several slide offs this morning. He reported deputies have started doing snowmobile checks. There is concern on how things will work next year with snowmobile licensing. Mr. Humphries stated that according to Idaho code, those who have filed for a concealed weapon permit will not have their names released to the public. He stated they will need a replacement for Commissioner Hurt on the DIGBY 6 Board. Commissioner Jordon Stoddard will take Commissioner Hurt's place. There has been a lot of talk about increasing 911 fees. Sheriff Humphries stated he doesn't foresee this happening until possibly next year though. EMS Director Bob Foster reported numbers are basically the same as last year. He reported collections seem to be higher than last year. Mr. Foster stated Radio Narrow Banding has been completed. Mr. Foster stated that the bids have been sent out for the new ambulance. Also, the training program for 2013 starts next Tuesday. He reported the Island Park area had a busy weekend and the St. Anthony area had a busy week last week. Prosecuting Attorney Joette Lookabaugh stated she had a quiet holiday with her family. She reported she is wrapping up things in her office since this is her last week as prosecutor. Commissioner Lee Miller stated that he hoped everyone had a great holiday with their families. He stated he has mixed feelings at this time with Commissioner Hurt leaving office and Prosecuting Attorney Joette Lookabaugh also leaving office. He also reported he had a conference call with Dustin Miller last Friday about wolf depredation. Apparently there was some money left over so they were able to pay some late applicants. He stated they have a lot of documentation coming in on loss of livestock and money is running out. Dustin Miller will be meeting with the legislature on this issue. Commissioner Miller stated he is looking forward to moving ahead with the Transfer Station at the Landfill. He also expressed appreciation to all the employees for all the hard work they are doing. Commissioner Jordon Stoddard has received an estimate for the repairs on the electrical work at the fairgrounds. He is still doing a little bit of work in the Assessor's Office. He went to the swearing in of the new judge. He thanked everyone for their work. Commissioner Skip Hurt stated this is his last week as County Commissioner. He stated we are all under scrutiny of the public and everyone watches us. He appreciates the way everyone works together here. Everything hasn't always gone smoothly but it has all been ironed out and come to~ether. Commissioner Hurt made a motion to go into executive session pursuant to IC 67~2345(1){b) To consider the evaluation) dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member or individual agent~ or public school student; at 10:18 a.m. Commissioner Stoddard seconded the motion. A roll call vote was taken with Commissioner Miller voting "Aye·~ Commissioner Stoddard voting "Aye·, and Commissioner Hurt voting "Aye•. Commissioner Hurt declared the meeting open at 10:34 a.m. 3 Page 85 of 408- ---JAN. 23.2013. 10:33AM FREMONT COUNTY St. Anthony, ID NO. 115 P. 5 54231.5 Veterans Service Officer stacy Whitmore RE: Increasing Office Hours Ms. Whitmore asked the commissioners if she could increase her hours from six to twelve hours per week. She stated that she has been busy enough that she has to tell veterans that they will have to come back the following week in order for her to help them. The commissioners feel that there is enough work for her to add the additional hours. Commissioner Stoddard made a rnotion to change Veterans Service Officer Stacy Whitmore's hours from six per week to twelve per week. Commissioner Miller seconded the motion. A full voice vote was heard with all commissioners voting in favor. Parks and Recreation Director Tamra Cikaitoga RE: 2014 Grant Applications Ms. Cikaitoga reported she has been putting together three grant applications. She needs approval to move forward with a boat ramp at Jump-Off Canyon, which is about ~of a mile from the Ashton Bridge. She also stated she would need to use the Road and Bridge Crew to get this done. She would also like to put new boat docks in at Buttennilk and Mill Creek. There was discussion on putting some parking area in at the Jump-Off area. She also reported that the Forest Service is working on grant applications so they can repair a couple of boat docks in the Island Park area. Commissioner Hurt made a motion to sign and approve a grant application with Idaho Department of Parks and Recreation in the amount of $3,000 with a match from the county of $2,500 for a Jump Off Canyon Angler Access Development Project. Commissioner Miller seconded the motion. A full voice vote was heard with all commissioners voting in favor. Commissioner Hurt made a motion to sign and approve a grant application with Idaho Department of Parks and Recreation in the amount of $10,000 with a match from the county of $3,000 to fund the upgrade of Mill Creek Boat Launch. Commissioner Miller seconded the motion. A full voice vote was heard with all commissioners voting in favor. Commissioner Hurt made a motion to sign and approve a grant application with Idaho Department of Parks and Recreation in the amount of $10,000 with a match from the county of $3,000 to fund the upgrade of boating facilities at Buttermilk Boat Launch. Commissioner Miller seconded the motion. A full voice vote was heard with all commissioners voting in favor. Ms. Cikaitoga updated the commissioners on how trail grooming is going. She stated everything seems to be going good but there just isn't a lot of snow up there. Planning and Building Administrator Tom Cluff RE: Department Report Mr. Cluff stated that he didn't really have any more to add than what was said this morning. He will report next week. Social Services - Debbie Adams Re: Indigent Claims Commissioner Hurt made a motion to go into executive session pursuant to IC 67-2345(1)(d) to consider records that are exempt from disclosure as provided in chapter 3, title 9, Idaho Code at 1:00 p.m. Commissioner Stoddard seconded the motion. A roll call vote was taken with Commissioner Stoddard voting ~Aye", Commissioner Miller voting ~Aye", and Commissioner Hurt voting ''Aye". Commissioner Hurt declared the meeting open at 1:10 p.m. 4 Page 86 of 408... .._...' JAN. 23. 2013-10:33AM . . FREMONT COUNTY St. Anthony, ID NO. 115 P. 6 542315 Commissioner Miller made a motion to approve case #G2013-16, deny case #M2013-9, and deny case #M2013-11. Commissioner Stoddard seconded the motion. A full voice vote was heard with all commissioners voting in favor. Commissioners signed three new liens and two lien releases. Public Works Director Brandon Harris RE: Department Reports Mr. Harris reported on the issue of plowing John Searle's road. Mr. Searle had to flU out a form and according to the score on the fonn he does not qualify to have his road plowed. Mr. Searle still feels that the county should plow his road. Mr. Harris asked the commissioners what they would like to do. The commissioners discussed other roads in the county that are not being plowed because they are private roads or because the county does not maintain those roads. The commissioners stated we need to slick to the standards that the previous Public Works Director put in place to determine if they qualify to have their road plowed. It was also stated that Mr. Searle lives on a steep road and it is hard to get the graders up the hill. The commissioners feel that it would be in the countYs best interest to stick with the county's standard; therefore they will not plow the road to his house. Landfill - There were no issues at this time. Sewer- Mr. Harris brought in a document for the commissioners to sign giving an extension on the Mack's Inn Sewer Expansion Project. Also, Mr. Harris stated that there is some concem regarding someone trespassing at the Island Park Sewer Station and looking into the garage on December 26tll. Mr. Harris stated he is going to meet with people today in Driggs to make sure we are meeting the requirements of both OSHA and DEQ on the Transfer Station. Commissioner Hurt signed a contract extension for the wheel case loader with Bank of Idaho. The commissioners directed Mr. Harris to go ahead and order a new loader. Mr. Harris asked the commissioners if they would be willing to hire two of the work camp guys, whose time is about up, to work for the county. One would be employed at the Landfill and the other would work with Carey Daniels in maintenance. The commissioners asked to put this on the agenda for next week and discuss it some more at that time. Jerry Greenfield/Trails to Yellowstone Development Co. RE: Letter of support for Forest Service Land Swap The commissioners were updated on the current standing of the Land Swap between Trails to Yellowstone Development Company and the Forest Service. The land that would be swapped is currentiy the ground that the Landfill is on. Mr. Greenfield gave a presentation on the history of the company's organization and how the idea came about. He gave statistics on the tourism to Yellowstone National Park. He stated the concerns he has regarding Yellowstone National Park. They feel they can come up with solutions to the congestion, lodging, parking, etc. They would like to create a place outside the park that would have a variety of restaurants available. Also, water parks and family type entertainment would be available. He stressed the economic development that this project would bring to the area. The first thing that would have to be done though, is finalizing the land swap. Therefore1 they are asking the commissioners for a letter of support for the land swap. There was some discussion of the pros and cons of creating something like this in Island Park. Commissioner Stoddard stated he likes to be able to drive his own vehicle through the park. He is 5 Page 87 of 408-·· -JAN. 23. 2013 10: 33AM F REMON T C 0 UN T Y S t. An t h o n y, I D NO. 115 ---·" ' . not sure he likes the idea of traveling through the park on a tour bus as was stated by Mr. Greenfield. Mr. Cluff stated this letter that is being requested is just to support the land swap, not what they are proposing to do with the land. Mr. Miller stated the land swap would be a positive thing for Fremont County. He feels we should support the land swap and ff that goes through, we will deal with the other issues as they come about. Commissioner Hurt directed Mr. Cluff to draft a letter for the commissioners to sign. Board of Equalization 2nc1 Sub Roll Only Commissioner Hurt opened the Board of Equalization 2nd Sub Roll at 2:27 p.m. There are no requests at this time. Commissioner Hurt closed this at 2:29 p.m. Sheriff Len Humphries RE: Contract for Communications System Sheriff Humphries brought in a contract for the commissioners to sign to have A VTEC put in a radio console at the Sheriff's Office. Commissioner Hurt made a motion to approve the contract with A VTEC for the radio communication system. Commissioner Stoddard seconded the motion. A full voice vote was heard with all commissioners voting in favor. Sheriff Humphries stated the school district has approached him about hiring an officer to rotate in the schools. This officer would work about five or six hours a day. The commissioners feel this would be a good idea. Storage building at Sand Dunes Shannon Bautista, from the Bureau of Land Management, stated they are applying for a grant to build a storage building at the Sand Dunes. This grant is based off the Motor Vehicle Fund and the Off-Road Fund. This building will be built on BLM ground. She presented a floor plan of what they would like to build. The BLM would like to know how much money the county would be able to come up with to help fund this project. With this storage building, it would help to clean up the area so everything is stored in one place and there won't be several little trailers that store supplies. Commissioner Miller stated that to begin with, we just wanted to build something that would house the sand rail and now the project has grown to be a lot bigger building than was expected. Everyone discussed the things they would like to have available at this facility. A major issue is making a storage area that is big enough to house the sand rail so there is a bigger opening to pull the sand rail in and out without damaging the tires. Commissioner Miller stated he feels safe in contributing about $30,000 to this project. Mr. Foster also stated that we need to consider how we will provide for the utilities there. BLM stated they will be responsible for maintaining the facility, but would welcome help from the county in any form. Commissioner Miller would like an alternate plan in place in case the grant does not come through. He would also like an agreement where there is no limit of time as far as being partners with the BLM on this project. Ms. Bautista stated she will look into that. Commissioner Miller made a motion to apply for a grant together with the BLM with a match of $30,000 to build a storage facility at the Sand Dunes. Commissioner Stoddard seconded the motion. A full voice vote was heard with all commissioners voting in favor. 6 P. 7 Page 88 of 408' ' ... __ _, .. ___ . JAN. 23.2013 10:34AM F REMON T C 0 UN T Y S t. An t h o n y, I D NO. 115 P. 8 542315 Miscellaneous Commissioner Hurt made a motion to approve the claims for January 7, 2013 as presented . Commissioner Miller seconded the motion. A full voice vote was heard with all commissioners voting in favor, Commissioner Hurt made a motion to approve a duplicate copy of Liquor License #36 to Golden Bear Lodge, LLC doing business as Lakeside Lounge. Commissioner Stoddard seconded the motion. A full voice vote was heard with all commissioners voting in favor. Commissioner Miller made a motion to approve the Junior College application for Brittney Leavitt and Aubree Hill. Commissioner Stoddard seconded the motion. A full voice vote was heard with all commissioners voting in favor. We currently have three lawsuits pending that are being handled by our civil deputy Blake Hall. They are Flying A Ranch, Inc., et al. v. Fremont County; Gwaltney, Ill, et al. v. Fremont County; and Stoddard Bros. v, Fremont County. Additionally, we have the case of Huber v. Fremont County that Mr. Hall has been our legal counsel. In each of these cases, the incoming prosecuting attorney, Karl Lewies, has a conflict of interest and neither he nor his office can represent us. Therefore, pursuant to our authority under I. C. 31-813, and to ensure continuity in the representation of the County, Commissioner Miller moved that we retain Blake Hall of the firm of Nelson Hall Parry Tucker, P.A. to represent us in the above matters commencing on January 16, 2013.Commlssioner Stoddard seconded the motion, A full voice vote was heard with all commissioners voting in favor. There was some discussion on the Legislative Tour that will be held this year. Rexburg Chamber of Commerce would like Fremont County to contribute $5,000 to help cover costs for this event. Commissioner Miller stated he has reservations about donating that much money. Commissioner Stoddard also feels that $5,000 is too much. Commissioner Stoddard stated he would like to discuss this with people from the county and hear how they feel about this. No decision was made on whether to contribute money. There being no further business to come before the board the meeting was adjourned, ~~ e(MIIl;Chairman Fremont County Commission 7 Page 89 of 408DISTRICT SEVEN COURT County of Fremont State of Idaho Filed: ·r=====--Lynn Hossner Attorney at Law Idaho State Bar No. 1074 109 North Second West FEB 1 2 2013 St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Petitioners IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW and DAVID TUK NEDROW, ) , ) Petitioners ) vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the State of Idaho, RONALD "SKIP" HURT, in his official capacity and LEROY MILLER in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 CERTIFICATE OF SERVICE I hereby certify that on February 12th, 2013, I served a true and correct copy of Petitioners Memorandum in Support of Petitioners' Petition For Review and Affidavit of Lynn Hossner to: Blake G. Hall, Esq. 490 Memorial Drive P.O. Box 51630 Idaho Falls, ID 83405-3001 Facsimile (208) 523-7254 Honorable Greg Moeller Madison County Courthouse Rexburg, Idaho 83440 Facsimile (208) 356-5425 METHOD OF SERVICE: []Mailed [ ] Hand Delivered [x] Facsimile Page 90 of 408Lynn Hossner Attorney at Law Idaho State Bar No. 1074 109 North Second West St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Petitioners DISTRiCT St.:1./fN COUR.T County of Fremont State of Idaho Filed::.=====::::::::::::::::::=:;---FEB 1 2 2013 By: ft£!D~~y ~J IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) ' Petitioners vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision ofthe State of Idaho, RONALD "SKIP" HURT, in his official capacity and LEROY MILLER in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 MEMORANDUM IN SUPPORT OF PETITIONERS' PETITION FOR REVIEW Comes now Lynn Hossner, attorney for Petitioners, and in support of Petitioners' Petition For Judicial Review ofthe proceedings ofthe Board of County Commissioners for Fremont County, Idaho, hereinafter termed "the Board," whereby the Board designated that certain road which cross Petitioners' land in Sections 8, 17 and 20, Township 9 North, Range 42 East, Boise Meridian as a public road which were designated as "the Old Yellowstone Mail Route Road and Snow Creek roads, ("the Subject Road"). INTRODUCTION Before the court is Petitioners' Petition For Judicial Review of the actions of the Board in adopting Ordinance No. 2013.01 on October 29, 2012 which adopted the Official Road Map of Fremont County, Idaho. The Ordinance, among other things, designated a road as a public road which commences at 1425 North 3125 East in Fremont County and travels one quarter of a mile north over the property of Petitioners, George Ty Nedrow and David Tuk Nedrow, hereinafter termed Nedrow, and then proceeds north a quarter of a mile over property belonging to Petitioners, Flying "A" Ranch, Inc., Clen Atchley, Emma Atchley, Laura Pickard and Clay Pickard, hereinafter termed Flying "A" Ranch. After the road leaves the Flying "A" Ranch Page 1 of 4 Page 91 of 408property on the north side, it travels one-half a mile north over BLM property to property belonging to Flying "A" Ranch and continues on north until it reaches the U.S. Forest Service property where the road is blocked. There are numerous gates across the road before it approaches the block by the U.S. Forest Service at the south edge of its property. ARGUMENT 1. The road designated as "the Old Yellowstone Mail Route Road and Snow Creek road, ("the Subject Road") is not a public road. The county has the power and authority under I. C. 40-202 to prepare a map designating the public roads of the County and to cause notice to be given of its intention to adopt the map as a map showing the public roads of the county. The procedure requires that first there be notice, then public hearings before the map shall be adopted with whatever changes are deemed necessary. The act of designating the road as a public road does not automatically make the road a public road. The process by which a county selects a road does not automatically serve to adjudicate the public status of a road. I.C. 40-202(1). There are specific ways in which a public highway may be created. I.C. 40-203(3) provides in part: Highways, laid out, recorded and opened as described in subsection (2) of this section (by acquiring real property and then adopting a resolution establishing an interest in the property as a highway), by order of a board of commissioners, and all highways used for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public, or located and recorded by order of a board of commissioners, are highways. The only testimony at the public hearings regarding the Subject Road was from Petitioners, David Tuk Nedrow and George Ty Nedrow. Their testimony is contained on page 16 lines 24-25, page 17-lines 1-25, page 18 lines 1-25, page 19 lines 1-25, age 20-lines 1-25, page 21lines 1-25 and page 22 lines 1-17 (See Attached Exhibit A). As is noted from the testimony, there was no testimony that the road was laid out, used for a period of five years and had been worked and kept up at the expense ofthe public which fits the criteria ofi.C. 40-203(3). Homestead Farms, Inc. v. Board ofCommissioners ofTeton County, 141 Idaho 855. No testimony was elicited from any witnesses regarding continual use of the road for five years and that it was worked and kept up at the expense of the public. There is no evidence in the record that the road was ever designated as a public road and placed on an official map, as provided by law, nor was any evidence adduced that it was created by prescription and if it was created by prescription, whether it was abandoned or vacated. It appears that this road was declared a public road by the Fremont County Commissioners without Page 2 of 4 Page 92 of 408obtaining evidence determining if there was a road, how it was created, whether any work was done on it at public expense, and if so, was the road ever vacated. Upon examination of the record, none of the necessary perquisites were done by Respondents to arrive at the point which allowed Respondents to determine that this is a public road. The fact that the Respondents' now show the road on the county map as a public road does not make it so absent the proof laid been before the commissioners that the road qualified. 2. THE ROAD IS NOT AN R.S. 2477 The question was asked during the hearing on the Subject Road whether the road was an R.S. 2477 road. The commission chairman indicated he would look into it. There is nothing in the record which indicates the commission chairman looked into it or if he did, what the effect on the matter was. An R.S. 2477 right-of-way is obtained by an "acceptance of a congressional grant of a right-of-way for a public highway under this statute." Call v. Idaho County, 146 Idaho 155. The determination may be important ifthere was a belief that there was an established right-of-way under R.S. 24 77 while the land which now belongs to the Petitioners was in the public domain. In order to create an R. S. 24 77 right-of-way, "there must be a positive act of acceptance by the local government or compliance with the road creation statutes in existence at the time." Farrell v. Board of Commissioners of Lemhi County, 138 Idaho 378. There was no testimony given that the road was ever accepted by congressional action while the land was in the public domain, designated as such by the local government or that the road complied with the road creation statutes in existence at the time. The record is devoid of any finding which would support a contention that the road was an R.S. 2477 road. 3. THE FINDINGS OF FACT AND CONCLUSIONS OF LAW DO NOT REFLECT FINDINGS CONSISTENT WITH THE SUBJECT ROAD BEING A PUBLIC ROAD. The Commissioners are required to prove the public status of the disputed road. Homestead Farms, Inc., v. Board ofTeton County Commissioners, 141 Idaho 855 Idaho. I.C. 40-202(1) requires an express finding of fact which made the Subject Road a public road. To make the road a public road, there would have to be a finding that: 1, The highway was laid out, recorded and opened as described in subsection (2) of this section (by acquiring real property and then adopting a resolution establishing an interest in the property as a highway), by order of a board of commissioners, or, 2. The highway was used for a period of five (5) years that they have been worked and kept up at the expense of the public, or located and recorded by order of a board of Page 3 of 4 Page 93 of 408commissioners. There is nothing in the record which would make the Subject Road a public road. The only finding of fact in the record was that the road was a public roadway absent any reasons. "If the road is not properly created as a public highway, its inclusion on an official county highway system map does not impose a duty on the property owner to establish it as a public highway." Homestead Farms, Inc., !d. CONCLUSION Based upon the foregoing, the Petitioners respectfully request that the court vacate the Official County Road Map as far as it designates the Subject Road as a public road and that Petitioners be awarded their attorney fees and costs. DATED this 12th day ofFebruary 2013. ss Attorney for Petitioners CERTIFICATE OF SERVICE I hereby certify that on February 12th, 2013, I served a true and correct copy ofthe foregoing upon: Blake G. Hall, Esq. 490 Memorial Drive P.O. Box 51630 Idaho Falls, ID 83405-3001 Facsimile (208) 523-7254 METHOD OF SERVICE: []Mailed [ ] Hand Delivered [x] Facsimile Page 4 of 4 Page 94 of 408KARL_H. LEWIES, Bar No. 4380 Fremont Co. Prosecuting Attorney RYAN S. DUSTIN, Bar No. 8683 Deputy Fremont County P.A. 22 West 1st North st. Apthony, Idah,o 83445 Telephone: (208} 624-4418 Fax: (208) 624-3404 ORIGIN D''"'T'"'Ir'T SEVEN COURT Coun~~ ~t"F~e~ont State of Idaho Filed::~======;--\ FEB 1 2 2013 ~IE MACE, CLERK Deputy Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF J:DAa:O, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC, an Idaho Corporation, CLEN ATCHL~Y, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs-) ) ) ) ) ) ) } ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ) of Idaho, ) Respondents. ) _________________________________ } E.C. GWALTNEY, III, and LANA K. VARNEY, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. ) ) ) ) ) ) ) ) ) ) ) _______________________________ ) Case No. CV-12-580 Case No. CV-12-581 MOTION FOR EXTENTION OF TIME (RULE 6(b)) COMES NOW, Ryan S. Dustin, Esq., Deputy Prosecuting Attorney for Fremont County, Idaho, in the above-entitled actions and MOTION AND ORDER FOR ENLARGEMENT OF TIME Page 95 of 408pursuant to Idaho Rule of Civil Procedure 6(b) moves the Court for its order enlarging the time to February 25, 2013 to file. a memorandum on behalf of the Office of the Fremont County· Prosecuting Attorney (the "Office") addressing whether it is required and/or permitted under the Idaho Constitution, the Idaho Code, and the Idaho Rules of Professional Conduct to represent Fremont County, a political subdivision of the state of Idaho, in the following pending cases: Case No. CV-12-580 and Case No. CV-12-581. This motion is based on the pleadings and record in the above-referenced cases, and the affidavit of Karl H. Lewies, Esq., Fremont County Prosecuting Attorney, filed herewith. DATED this 12th day of February, 2013. Deputy Fremont County P.A. MOTION AND ORDER FOR ENLARGEMENT OF TIME Page 96 of 408CERTIFICATE OF MAILING +L-I HEREBY CERTIFY that on this /t7/ day of February, 2013, I mailed a true and correct copy of the foregoing, postage prepaid, addressed as follows: Charles A. Homer, Esq. Holden, Kidwell, Hahn & Crapo, PLLC Attorney for Petitioners P.O. Box 50130 Idaho Falls, Id 83405 Lynn Hossner, Esq. Attorney for Petitioners 109 N. 2nd W. St. Anthony, Id 83445 Blake G. Hall, Esq. Nelson Hall Parry Tucker P.O. Box 51630 Idaho Falls, Id 83405 Smith, Legal Secretary MOTION AND ORDER FOR ENLARGEMENT OF TIME Page 97 of 408• • ORIGINAL IN THE DISTRICT COURT OF THE· SEVENTH JUDICIAL DI~S~~:t.JOlLF~:::-=:-:-.::~~-~ THE STATE OF IDAHO IN AND I'OR THE COUNTY OF ~SEVEN COURT cour1tyoT'F'remont State ot Idaho MAGISTRATE DIVISION Filed::.=======:;--FLYING "A" RANCH, INC, an Idaho Corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS ) ) ) ) ) ) ) ) ) ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ) of Idaho, ) Respondents. ) __________________________________ ) E.C. GWALTNEY, III, and LANA K. VARNEY, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. ) ) ) ) ) ) ) ) ) ) ) ________________________________ ) COUTNY OF FREMONT ) ) ss STATE OF IDAHO ) FEB 1 2 2013 .,... ~ "' Case No. CV-1 MACE,CUBRK Case No . ~ -:,;1~2:..:-:.;;;059~J.8:..;!; ~1;._,__--;l:.JY't~-:t:";-r.r;-;:i; Deputy Clerk AFFIDAVIT OF KARL H. LEWIES I, Karl H. Lewies, having been first duly sworn upon oath, state as follows. 1. I am over the age of 21 years, and am competent to testify in this matter. 1 Page 98 of 4082 2. I make this statement based on personal knowledge of the events testified to herein. 3. On January 7, 2013, I filed motions to withdraw as counsel for Petitioners in Case No. CV-12-580 and Case No. CV-12-581. 4. On that same day, January 7, 2013, Blake Hall, Esq., acting in his capacity as Fremont County Deputy P.A., filed motions to disqualify me as counsel for the Board of County Commissioners of Fremont County, in the above-referenced cases, citing a future conflict of interest that would eventually arise. 5. On January 14, 2013, I was sworn into office as the elected Prosecuting Attorney for Fremont County. 6. On January 22, 2013, the Court heard oral argument on the competing motions to withdraw and to disqualify. 7. On February 1, 2013 the Court ordered that I be barred from representing Petitioners or Respondents in the cases. 8. In its Order, the Court allowed the Office of the Prosecuting Attorney for Fremont County (the "Office") 14 days to file a motion and briefing addressing, in the Court's own words, "Why the Fremont County Prosecutor's office should be permitted to represent Fremont County on these matters." 9. At the time of the Court's Order, my deputy prosecuting Page 99 of 4083 attorney was Ms. Billie Siddoway, Esq .. 10. On January 24, 2013, I asked my deputy, Ms. Siddoway to prepare a brief for the Court addressing the question whether the Office is required and/or permitted to represent Fremont County in the pending cases. Ms. Siddoway responded by email writing, "I will put something together." I left the matter in her hands and had no further contact with Ms. Siddoway concerning the matter. 11. On February 5, 2013, I had my secretary, Pat Smith, check the Court filings to confirm that Ms. Siddoway had indeed filed her brief. had filed nothing. However, it become clear that she 12. On February 6, 2013, I emailed Ms. Siddoway inquiring whether she had "filed the brief on 'necessity' for appointment of outside counsel in the two road cases in which Blake Hall is involved?" 13. On February 6, 2013, Ms. Siddoway responded by email as follows: "I haven't filed the brief. I have a draft, but I wanted Pat to send me a copy of the minute entry with the judge's exact request so that I can make sure I covered everything. I plan to get it on file before close of business today." 14. To my surprise and shock, when I had my secretary check the Court filings at 5:00 p.m. on February 6, 2013, Page 100 of 4084 we found that Ms. Siddoway had not filed a brief at all, instead she filed a Notice of Conflict of Interest. 15. It is excusable neglect by the Office not to have filed a brief. 16. By failing and/ or refusing to file a brief on the Constitutional "necessity" requirement for hiring outside counsel, my deputy deprived the Office of the Fremont County Prosecuting Attorney and the taxpayers of Fremont County who pay taxes for the Office to provide legal counsel for Fremont County, of any opportunity to present legal argument in support of the statutory duties of a prosecuting attorney and the Constitutional "necessity" requirement counsel. for county commissioners to hire outside 17. On February 10, 2013, I terminated the employment of deputy Siddoway; and on February 11, 2013, appointed Ryan S. Dustin, Esq., of THOMSEN-STEPHENS LAW OFFICES, PLLC, as deputy prosecuting attorney. 18. Deputy Prosecuting Attorney Ryan S. Dustin, Esq., is willing and able to prepare and file a brief with the Court on the Constitutional "necessity" requirement for county commissioner to hire outside counsel, but will require additional time. 19. By enlarging time to submit a brief, the Court will be Page 101 of 408able to avail itself of legal reasoning, argument and support, from the Office allowing it to make a well-informed decision on a matter of widespread public importance. Further affiant sayeth not. DATED this 12th day of February 2013. Karl H. Lewies, Esq. SUBSCRIBE AND SWORN to before me, a notary public, this 12th day of February, 2013. ·········· . ...-~R\CIA t·· ... •"<"?'- ••••••• . .s.~~~· . . ·· '.·. ··. ·~ ·. . · 0 T . ;.;,. ·• : : ~ <"l.b ·.-:.:.~ • ~r • ~ • :,..: J.. ~ : : ....... : : . . A . . ~ rJl". 0 BuC :,.. i · .. ~ ·. .· ... •• "'1 ')..... • • • •• · .... ~ ........ ~o .. •• ••• OF IDP'-'1;' •••• • ················ 5 P~>elk~~ NOTARY PUBLICi? Residing at: St. Anthony, ID Comm. Expires: d-./ !G /I [ r , Page 102 of 408fi_b. 4 , .;lD 13_ _ __ AT; ~ , c: •oo lltM --a:.~:~J IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DIS~' il)Gn STATE OF IDAHO, IN AND FOR FREMONT COUNTY FLYING" A" RANCH, INC., an Idaho ) corporation, CLEN ATCHLEY, EMMA ) ATCHLEY, LAURA PICKARD, CLAY ) Case Nos. CV-12-580 & CV-12-581 PICKARD, GEORGE TY NEDROW, and ) DAVID TUK NEDROW, ) ) Petitioners, ) ) ORDER ON MOTIONS TO: v. ) ) 1) DISQUALIFY COUNSEL, BOARD OF COUNTY COMMISSIONERS ) 2) WITHDRAW, AND FOR FREMONT COUNTY, IDAHO, a ) 3) DISMISS INDIVIDUAL RESPONDENTS. political subdivision of the state of Idaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ______________________________) E.C. GWALTNEY, III and ) LANA K. VARNEY ) ) Petitioners, ) ) v. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) po 1 itical subdivision of the state ofldaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) __________________________ ) On November 23, 2012, Karl H. Lewies filed two petitions for judicial review of decisions made by the Fremont County Board of Commissioners ("the County"). The petitions were filed on behalf of various individuals and one corporation identified in the caption ("Petitioners"). At the time Mr. Lewies filed these petitions, he was the prosecutor-elect for Fremont County, having been duly elected in the general election on November 6, 2012. Mr. ORDER ON MOTIONS -- Page 1 Page 103 of 408Lewies ran unopposed in the general election, having defeated the incumbent Fremont County prosecutor in the primary election on May 15, 2012. Mr. Lewies had not yet taken office when he filed the petitions; he was sworn in on January 14, 2013. On January 2, 2013, Fremont County, through Blake Hall, its then deputy prosecutor, filed a motion seeking to disqualify Mr. Lewies from representing Petitioners against the County. Mr. Hall also filed a motion for partial dismissal of the individual claims against the commissioners. Mr. Lewies then filed a motion to withdraw on January 7, 2013. On January 14, 2013, after a substitution of counsel was signed, Lynn Rossner appeared on behalf of Petitioners Flying" A" Ranch, Inc., Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow in Case No. CV-12-580. As ofthe date ofthe hearing, no other attorney had appeared on behalf of the Petitioners in Case No. CV-12-581. Oral argument took place on January 22, 2013. The Court noted that Mr. Lewies had failed to withdraw voluntarily until the County had filed its motion to disqualify him. It also questioned the wisdom and ethics of filing actions against an entity he had just recently been elected to represent on behalf of clients he could no longer represent. Mr. Lewies attributed the delay to an oversight and argued that no rule of professional conduct was violated. He claimed that his clients were operating under time constraints due to the statute of limitations. He agreed that he should no longer represent his former clients or the County on these matters in the future. Mr. Lewies questioned the authority of Mr. Hall to file any motions or argue on behalf of the County. Mr. Hall responded by noting that he was still an acting deputy prosecutor for the County when he filed his motions and that he is now acting under a contract with the County Commissioners. The Court noted that Mr. Lewies' actions had essentially deprived the County of legal counsel in this matter. Mr. Lewies asserted that his newly appointed deputy prosecutor, Billie Siddoway, could take over his representation of the County in this matter. Mr. Hall disagreed and asked for attorney fees incurred by the County in filing both motions. Mr. Hall also addressed his motion for partial dismissal, arguing that the County Commissioners could not be sued "individually." The Court questioned Mr. Lewies and Mr. Rossner as to the appropriateness of making claims against elected officials individually in a petition for judicial review under I.RC.P. 84. After considering the pleadings and arguments of counsel, the Court ordered as follows: ORDER ON MOTIONS -- Page 2 Page 104 of 4081. Noting its strong disagreement with Mr. Lewies' actions in this matter, the Court hereby bars Mr. Lewies from further representing Petitioners or Respondents in these matters. 2. The motion for partial dismissal of the named County Commissioners as individual Respondents is hereby granted. Neither Mr. Lewies nor Mr. Rossner could articulate a factual or legal basis for bringing individual claims against the commissioners via a petition for judicial review. Future pleadings shall contain a correct caption, removing the words "individually and" after each commissioner's name. 3. The Court concludes that the County is entitled to recover its attorney fees incurred in filing the motion to withdraw. Any fees will be awarded against Mr. Lewies personally, but not against his clients, the Petitioners. Mr. Hall may file a request for fees with appropriate supporting documents within 14 days. Mr. Lewies will be allowed to appear for purposes of contesting the attorney fees only. 4. The Court concludes that the inclusion of the individual claims against the commissioners in the caption was likely an oversight that could have been cleared up without filing a motion. Therefore, no fees will be assessed at this time. 5. If Ms. Siddoway wishes to assert the position that she should be permitted to represent Fremont County on these matters, rather than an attorney of the Commissioners' choosing, she may file an appropriate motion within 14 days. Mr. Hall will be allowed to respond within 7 days. 6. All pending matters (attorneys fees against Mr. Lewies and Ms. Siddoway's eligibility to represent the County in this matter) will be taken up on February 26, 2013, at 3:00p.m. 7. This order is effective immediately; however, the Court is willing to reconsider any portion of the order during the hearing on February 26, 2013. 8. Inasmuch as the Court does not possess the individual addresses of Mr. Lewies' unrepresented, former clients in Case No. CV-12-581, he shall provide a copy ofthis order to each of them as soon as possible by certified mail, and submit proof of mailing to the Court. SO ORDERED thislst day of February, 2013, nunc pro tunc January 22, 2013. ORDER ON MOTIONS -- Page 3 Page 105 of 408CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ORDER was this 5",... day of February, 2013, sent via US mail to the following individuals: Karl H. Lewies Billie Siddoway Fremont County Prosecuting Attorneys Office 22W.l 51 N. St. Anthony, Idaho 83445 Blake Hall P.O. Box 51630 Idaho Falls, Idaho 83405 Lynn Rossner 109 North 2"d West St. Anthony, ID 83445 Board of Commissioners for Fremont County c/o County Clerk 151 W. N. St. Anthony, Idaho 83445 By: ORDER ON MOTIONS -- Page 4 Page 106 of 408Lynn Hossner Attorney at Law Idaho State BarNo. 1074 109 North Second West St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Petitioners DISTRiCT SEVEN COURT County of Fremont State of Idaho Fiied: . ============:;--FE 8 1 2 2013 L_ --------------=--:-' AD81E MACE, CLERK By:-------=--~::::-:--'"7" Deputy Cierk I IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) , Petitioners vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision ofthe State ofldaho, RONALD "SKIP" HURT, in his official capacity and LEROY MILLER in his official capacity, STATE OF IDAHO ) ) County of Fremont ) Defendants. ) ) ) ) ) ) ) ) ) ) ) j Case No. CV-12-580 AFFIDAVIT OF LYNN HOSSNER Comes now Lynn Hossner, attorney for Petitioners, being first duly sworn, deposes as follows: 1. I have had delivered to me a transcript of the hearings and proceedings in the above entitled case. 2. Attached hereto and marked as Exhibit "A" are true and correct copies of the only pages of the hearings which deal with the road under contention which commences at 1425 North 3125 East and travels one quarter of a mile north over the property of Petitioners, George Ty Nedrow and David Tuk Nedrow, then proceeds north a quarter of a mile over property belonging to Petitioners, Flying "A" Ranch, Inc., Clen Atchley, Emma Atchley, Laura Pickard and Clay Pickard. After the road leaves the Flying "A" property on the north side, it travels one-half a mile north over BLM property to property belonging to Flying "A" Ranch and continues on north Page 1 of 2 Page 107 of 408until it reaches the U.S. Forest Service property. The road subject to Judicial Review in the proceedings ofthe Board of County Commissioners for Fremont County, Idaho, which cross Petitioners' land in Sections 8, 17 and 20, Township 9 North, Range 42 East, Boise Meridian as a public road which were designated as "the Old Yellowstone Mail Route Road and Snow Creek roads. 2. Attached hereto and marked as Exhibit "B" is a true and correct copy of the Findings of Fact and Conclusions of Law in the above entitled matter. DATED this 12th day ofFebruary 2013. STATE OF IDAHO ) ) ss. County of Fremont ) Lynn Rossner, being first duly sworn, says that he is the attorney for petitioners in the above entitled matter, that he has read the foregoing and knows the contents thereof, and as to the matters and things therein alleged, affiant believes the same to .pe true. _,!>' ~ / ,,z{7 / /~ ,/J'J"~/~ [)rt)H'Hossne( Subscribed and sworn to before me this 12th day of. February, 2013. ''"''"""""""' C::::::~ nt 1 o of Q) ~'" ~RIE I> "~ -, , lY J ,# '\~ ......... It~~ Notary Public for Idaho'"" / .. ···~or -4 ••• ••• <-o '%:, Residing at: Ashton, Idaho § { ......_ -9,~- \ CP ~ Comm. Expires: 11/14117 - ..... . ......._.) -::: Cl) \ 4'¥ s s ~ ... (181.10 ~ ~ .,~ •••• •••• {$ ~ ~ ········· 0 ~ ~1. OF 10~~~,# ~'II Ill II Ill l\ \ \\\\'\ Page 2 of 2 Page 108 of 408EXHIBIT A Page 109 of 4081 COMMISSIONER HURT: Imaaine that. 2 BOB RILEY: One thing abdeu boys, you don't 3 have to make any mistakes, we made them all in Teton 4 Valley, so we --5 THE CLERK: Name and address first. 6 COMMISSIONER HURT: Name and address, Bob. 7 BOB RILEY: Bob Riley, 640 South 3rd East, 8 St. Anthony. When this first started up there, when 9 they first said we had to put the roads in, good old 10 Cobblewood and the boys got together and held a 11 meeting. Now, I didn't know about it so I didn't go 12 and they closed nine roads. They absolutely closed 13 off the east side of Teton Valley. The other thing 14 they did, they closed four of them to the river. You 15 can't get down to the Teton River. If we got an 16 access to the water, to the forest, let's keep it. We 17 need more of it. People need to get to it. What 18 we've done, we've sold our land, we've blocked their 19 access, now what the hell do you do? There's no way. 20 Any time you hit one of those (inaudible), the 21 answer's no. Let's keep it. I don't care whatever. 22 If it goes through the river, if it goes through a 23 creek, if it goes to that forest, let's keep it. 24 See, we don't have to have a maintained road. 25 You guys can say it's a trail. That's what they 13 1 no gate. It's a mess. I drove up there, I don't 2 know, this last fall, with a guy that showed them all. 3 MARLA VIK: Is that that ranch (inaudible)? 4 BOB REILLY: Yeah. And by the way, probably 5 through the Stone property, she's not going to object 6 to that, but she's not going to have it forever. That 7 road needs to be a County road. It is and it should 8 be. There's one of those access roads, if you ever 9 lose them, they won't come back. They own 4,000 acres 10 sitting right there and they froze up and it ties in 11 with Fourth of July Creek. That's it. 12 COMMISSIONER HURT: Okay. Questions? Go 13 ahead, you can sit down. He's probably available 14 after the hearing if you'd like to talk to him. Ty 15 Nedrow. 16 TY NEDROW: My name is Ty Nedrow. I live at 17 1401 North 3125 East, Ashton, Idaho. I am here about 18 a couple of roads that got put on the map as County 19 roads, they're actually private roads. They lead to 20 nowhere. I have on the one road, let me describe --21 the description of the roads is 1425 North 3125 East 22 is the corner of both these roads. Neither one of 23 these roads are on a section line or anything. The 24 one road going east on 3125 out to 3300 East goes out 25 through my field, is only a field service road. I 15 1 mentioned, keeo the access. Let's walk in, but keep 2 the right to g( are. I've seen it happen in 3 Jefferson Counl~Jlrclark County, Bonneville County, 4 Teton County and we've got a few of them in Fremont 5 County. We, the people, need to get in there. Let's 6 do it. 7 COMMISSIONER HURT: Okay. Questions for Bob? 8 MARLA VIK: Bob, is there any that we closed in 9 this process because --10 BOB REILLY: I haven't looked. I'll come over 11 and look at it later. And what I'm saying is a 12 general thing over a period of time that I've seen all 13 this happen and it's wrong, it's just wrong. 14 MARLA VIK: Yeah. 15 BOB REILLY: Above my farm we had a road that 16 was put in there in 1903. That was the only way you 17 could go to Badger Creek into the forest next to the 18 creek. They ended one over on Dry Ridge. I could run 19 through them, Marla. We just gave up something -- and 20 once you give them up they don't come back. There's 21 no way to get them back. I know that people look at 22 today, let's look a little further down the road. 23 The:-e's been some big mistakes made. Vandersloot 24 closed three of them down there. We're never going to 25 get them back. You can't drive up there now. There's 14 1 have three pivots that cross that road. I have many, 2 many drunk fishermen that can see the reservoir is on 3 the far end of that and when the pivots are crossing 4 the road the only way around them is to drive out 5 through the field, which is usually soaked, and then 6 these fishermen come knock on my door in the middle of 7 the night and want me to pull them back out. Someone 8 will find a dead fisherman some day. 9 Okay. There is one road that goes east from 10 there out through my field, there is one road that 11 goes north from that, and both of those I have -- the 12 one road only has one pivot that crosses it. Neither 13 one of them are on a section line. This was addressed 14 at a County Commissioner hearing I'm guessing five 15 years ago. John Hess was one of the Commissioners, 16 and at that time they were both supposed to have been 17 taken off the map and they're still on the map listed 18 as County roads and, as I say, there's always a drunk 19 fisherman that says I can go through there. I would 20 like them removed because they go nowhere but to 21 trouble. 22 COMMISSIONER HURT: Is that the road that I've 23 heard called the mail route? 24 TY NEDROW: That's another issue. People 25 call -- the one going north, people call that the mail 16 12/15/2012 10:56:14 AM Page 13 to 16 of 53 4 of 14 sheets Page 110 of 4081 2 3 4 5 6 7 8 route. I rode that country for mC)ny, many years with my grandfather. His older brotl-rnished the horses to the stagecoach to use, but that road was never used unless it was an empty stage coming back from West Yellowstone. It was a shortcut. They couldn't pull the hills going up through there with a load on, nor was it safe to come down with passengers on the stagecoach. Grandpa said that the only time 1 2 3 4 5 6 7 8 that pivot com~es over across that road. COMMis', .ER HURT: Okay. TY NEDRO . And both those roads were put in like that because the section lines are total swamps back there on roadways, there's nowhere -- that's why it jogs over a quarter and goes up and then comes back over, but anyway. COMMISSIONER HURT: On that northbound road, 9 that they used that is if they was coming back from 9 when that turns off and goes off of your property, 10 the park empty and had a spare wheel. There are many 10 does that go onto BLM property or--TY NEDROW: No, it goes onto Clint Ashley's 11 lava rock grates they went over and they broke more 12 wheels. They usually couldn't even use that road 13 until August because of the swamp up there. They 14 called it Hound Creek back then, nowadays they call it 15 Snow Creek, but there's a crossing when you cross Snow 16 Creek that is just a swamp until about August they 17 couldn't even use that road, so many people are 18 misinformed saying that's the mail route. It was just 19 a shortcut for somebody that wanted to get to Idaho 20 Falls in a hurry. That is the road going north. The 21 one going to the east is not, but they both intersect 22 at that corner and, like I say, neither one of them 23 are on a section line. The one going north isn't even 24 on a quarter line, it's 100 yards off of a quarter 25 line where it goes up through my field. That's why 17 1 UNIDENTIFIED VOICE: That's what my question 2 is, if it says it's 24 77 road. 3 TY NEDROW: What's a 2477 road? 4 COMMISSIONER HURT: Those are roads that the 5 Forest Service was abandoning at one time, or BLM, and 6 the County stepped up and claimed them as roads at 7 that time. Can you explain that a little bit better, 8 Marla? 9 MARLA VIK: Maybe Joyce can help me with this, 10 but these were roads that were in place mostly over 11 public lands and people were trying to close them off 12 and there was legislation that said if people will 13 come in and once the terms that they ascertain that 14 these roads were in existence over public lands at the 15 time, and they have to do this before 1975, or the 16 road had to be in existence before 1975 is my 17 understanding, somewhere in that time frame, and then 18 someone had to ascertain. You can't take them away 19 from the public, the Forest Service can't close them, 20 we can't close them, they have to remain available for 21 the public to go over. It's not like anything 22 current, yeah, it ended in '75 and so now (inaudible), 23 but someone did ascertain (inaudible). 24 TY NEDROW: We might deal with the one going 25 over-- the one going to the east, there's no public 19 11 12 property. 13 COMMISSIONER HURT: Clint Ashley? Is there a 14 gate there? 15 TY NEDROW: There is a gate there. There's a 16 gate at the road of my property, always has been, and 17 then there's one a quarter mile north before you go 18 into Clint Ashley's property. 19 COMMISSIONER HURT: Okay. Questions? No, no, 20 no, we'll call you up to talk to you. We have to do 21 it in order. 22 UNIDENTIFIED VOICE: Is it classified RS2477 23 or--24 COMMISSIONER HURT: Well, that's what we're 25 going to have to find out. 18 1 property at all out there. It's only private 2 property. Like I say, I have right-of-ways from 3 (inaudible) crossing grandfathered in because they've 4 been crossing for a lot of years, they just-- it 5 becomes a real problem, though, to fishermen that 6 can't get to the reservoir from this way. 7 COMMISSIONER HURT: We have a couple of roads 8 that are questionable about this RS2477 and we will 9 look into those and find out. Questions? 10 TY NEDROW: When would be the best time for me 11 to check back with you and find out where we are at on 12 this? 13 COMMISSIONER HURT: Well, we've got 60 days 14 after this hearing to make a decision, and I can't say 15 now, but there may be a time -- we may have to collect 16 more information. We may have to have another public 17 hearing, I don't know. 18 TY NEDROW: The one road going to the east was 19 at whatever was said and decided by the County 20 Commissioners five years ago that this was on a 21 private road and it shouldn't be taken off. If we 22 have to, I guess we can go back to the minutes on that 23 deal, but anyway --24 COMMISSIONER HURT: Well, I've been here for 25 almost six, so it would have to be -- when John was 20 5 of 14 sheets Page 17 to 20 of 53 12/15/2012 10:56:14 AM Page 111 of 4081 2 3 4 5 6 7 8 9 10 11 12 13 here? TY NEDROW: When John ~.as one of the County Commissioners. COMMISSIONER HURT: We'll look into that. TY NEDROW: And it was basically -- I think Weldon Reynolds was on the opposition on the other side at that time. He was the road boss and trying to make the County road and because it wasn't on a section line they said that he couldn't make it a County road because it went nowhere. COMMISSIONER HURT: Okay. Good. Thanks. Okay. Let's go back, Tuk's back there chomping at the bit. Come on up, Tuk. Evidently Ty didn't do a good 14 enoughjob? 15 TUK NEDROW: My name's Tuk Nedrow. I live at 16 1404 Cedar Lane. He did okay. The road going east of 17 the line in question has never had a piece of County 18 equipment on it. It goes nowhere. People that look 19 at it, it does end up at the reservoir, they said 20 there's no access there anymore because that's been 21 22 turned into a private subdivision and there's very few people that have access through the subdivision. The 23 public certainly will not, no matter happens to this 24 road. 25 And the road going north has never had any 21 1 When I came in to talk to these gentlemen about 2 14 months ago, we made a proposal to have a bridge 3 fixed that had been washed out down in the canyon in 4 the -- or a culvert fixed, it's been washed out down 5 in Pine Canyon and at that time the proposal's been to 6 be fixed as long as we had no problems with that being 7 a public road, which we didn't. 8 Now, talking tonight, I find out that it's been 9 changed from a County road to a private road and 10 apparently I want to relate some more information on 11 this road, and that is when that property was sold 12 Keith Robison made no inquiry that that was a private 13 road. That was a public road that we needed no deeded 14 right-of-way because that was a public road. 15 Now, when I was a kid we would see graders on 16 that road and back in the '50s they would grade all 17 the way through that through Pine Canyon all the way 18 over to Spring Creek and Snow Creek, but that's been 19 eliminated and recently they've just been going down 20 to the creek there at the bottom of the canyon. A few 21 years ago that washed out and the County came in and 22 adjusted the culvert. I think they replaced the 23 culvert with their loader and with their equipment 24 they replaced a washout and then they made some other 25 adjustments I believe. I'm not sure if this one is 23 1 County maintenance on it and the thing that was failed 2 to be mentiof ., that is it's a road that goes to 3 nowhere. It g61!!'through a quarter mile of our 4 property and a quarter mile of Mr. Ashley's and it 5 goes through a half a mile of BLM and then hits the 6 Forest Service and the Forest Service has had that 7 road closed for 25 years and I doubt they're going to 8 open it no matter what the County Commissioners do. 9 It's been bulldozed since they started bulldozing 10 them. 11 So it would be a road to nowhere if you opened 12 that one, and the road going east through our farm, 13 it's just our farm and it's never had a piece of 14 County equipment on it, and it goes nowhere. You 15 can't get to the river. You do not get river access 16 (inaudible). 17 18 19 COMMISSIONER HURT: Thank you. Questions? COMMISSIONER MILLER: Nope. COMMISSIONER HURT: Thanks. Okay. Back to 20 this sheet. Lynn Shirley. 21 LYNN SHIRLEY: My name's Lynn Shirley, 396 West 22 Moody Road, Rexburg. Commissioners, I want to talk to 23 you about the Map 5 of 9 that has to do with a road, a 24 dry road that is a spur that goes down to Pine Creek 25 and Cold Springs. 22 1 locking or just this little locking, but they made it 2 so those trucks could make it easier to turn over that 3 culvert, and the County did that, and that's what I 4 want to emphasize is that the County has maintained 5 that road and that is a County road. Thank you. 6 COMMISSIONER HURT: Do you have-- go ahead. 7 COMMISSIONER MILLER: Lynn, is that road open 8 to the public beyond Pine Canyon across -- can the 9 public access that? 10 LYNN SHIRLEY: Well, see, what's happened is 11 the -- it's open down to our place, but you go past 12 our place over into the Wadsworth's and Willies', they 13 have closed that off. So we had to file for a private 14 right-of-way through that because of the problems that 15 they causes us. 16 COMMISSIONER MILLER: Is that accessible with a 17 vehicle from the east now? 18 LYNN SHIRLEY: It's not. 19 COMMISSIONER MILLER: I didn't think so. 20 LYNN SHIRLEY: Our access is (inaudible). We 21 use that east side mainly as just a (inaudible). 22 COMMISSIONER HURT: So your contention is that 23 road should remain public? 24 LYNN SHIRLEY: Yes. 25 COMMISSIONER HURT: That runs in my mind, 24 12/15/2012 10:56:14 AM Page 21 to 24 of 53 6 of 14 sheets Page 112 of 408EXHIBITB Page 113 of 408IN RE: (-BEFORE THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF FREMONT, STATE OF IDAHO M1crofilm No. 54.1-9 ~@ .2_1 Day 0 Ec ._ ::1.1-At II :QO O'Clock A M Official Road Map of Fremont County, Idaho FINDINGS OF FACT AND CONCLUSIONS OF LAW ABBIE MACE FREMONT CO RECORDER Fee $ -e- f- Deputy rf Recorded at Request of \l,t!A,Jyn,b>l)t Ct1> CDV'f)M?j od.t'MaJ J) INTRODUCTION This matter comes before the Fremont County Board of Commissioners as a requirement of Idaho Code 40-202. Public information meetings were held on July 20, 2012, July 26, 2012 and July 31, 2012, in the cities of Island Park, Ashton and St. Anthony, respectively. A public hearing was held on September 27, 2012 in St. Anthony, Idaho. Notice of public hearing was given pursuant to law. After due consideration of the testimony presented at the aforementioned public hearings and based upon evidence presented, the Fremont County Board of Commissioners find as follows: FINDINGS OF FACT 1. The Fremont County Commissioners have jurisdiction of all county highways within the boundaries of Fremont County. Idaho Code 40-202. 2. Fremont County is required to adopt a road map pursuant to Idaho Code 40-202. 3. Each year, Fremont County submits a road inventory map to the Idaho Transportation Department (lTD) that shows any changes in road jurisdiction and type of road surface. The Idaho Transportation Department {lTD) maintains archived copies of the road inventory maps, beginning with the 1961 map. 4. The Fremont County clerk maintains a record of the Fremont County Board of Commissioners official minutes, which contains official action taken by the Fremont County Board of Commissioners to accept, validate, abandon, or vacate county roads. Said documents have been maintained as required by law. 5. The Fremont County Public Works Department undertook identifying the County maintained roads and rights-of-way to be included on a County road map by researching the archived lTD inventory maps, Forest Service and BLM road maps, Fremont County Road & Bridge records, official minutes of the Fremont County Board of Commissioners, and all other available resources. 6. Roads were identified as Fremont County roads based on the following criteria: a. The roads are routinely maintained by the Fremont County Road & Bridge Department. b. Documentation showed the roads have been maintained in the past by the Fremont County Road & Bridge Department. c. Current or past employees of the Fremont County Road & Bridge Department testified that they had performed authorized maintenance on the road. FINDING OF FACTS AND CONCLUSIONS OF LAW RE: OFFICIAL ROAD MAP OF FREMONT COUNTY IDAHO PAGE 72 Page 114 of 408(- (- 54:1940 d. The roads were identified on recorded plats of subdivision as having been dedicated to the public. e. The roads were shown on government maps (such as Forest Service, BLM, State of Idaho) as being public roads. f. The roads had been asserted under Federal Law R.S.-2477 and Idaho Code 40-204 and 40-107 or are the sole or essential connection to roads asserted as R.S.-2477 roads. 7. All identified County roads were presented at all three public information hearings and at the public hearing. To enhance clarity, the identified County roads were presented on nine (9) maps that showed nine (9) different areas of the County. This allowed for showing the roads at a larger scale than could be shown on one map. These nine maps were also posted to the Fremont County website for public review. The nine (9) maps were first posted on the website on or around July 17, 2012 and were dated July 17, 2012. 8. Written comments were received at each of the public information meetings, i.e. the meetings held in Island Park, Ashton and St. Anthony. Copies of these comments are presented in Exhibit "A" ofthis document. 9. Following the public information meetings, Fremont County Public Works staff reviewed the comments for validity and applicability. The maps were adjusted to comply with comments that proved to be valid and applicable. In particular, adjustments that were made included: a. River Bend Lane from public to private access (in house correction) Sec 28 & 29 Twp 7 N Rge 41 E b. Cold Springs Road R.S.-2477 trail to private. Sec 13 Twp 10 N Rge 41 E 10. The maps that were adjusted following the public information meetings were the maps that were presented to the public and to the Fremont County Commissioners at the public hearing that was held on September 27, 2012 in the Fremont County Annex Building. These maps were dated August 20, 2012. At the public hearing, the Fremont County Commissioners took oral and written testimony from all interested persons on the area road map presented. 11. Minutes of the public hearing were taken and placed in the official minutes of the Fremont County Board of Commissioners. 12. The Fremont County Commissioners acknowledge that citizens questioned the public status of certain roads at the public hearing. These roads include the following locations: a. Cold Springs Rd Sec 13 Twp 10 N Rge 41 E b. Old Yellowstone Mail Route Sees 17 & 20 Twp 9 N Rge 42 E c. 1425 N east off 3125 E Sec 20 Twp 9 N Rge 42 E d. Vernon Rd Sec 6 Twp 8 N Rge 42 E e. 2100 E north of 300 N Sec 15 & 16 Twp 7 N Rge 40 E f. River Bend Ln Sec 28 & 29 Twp 7 N Rge 41 E (this was an error on our part and had already been fixed) FINDING OF FACTS AND CONCLUSIONS OF LAW RE: OFFICIAL ROAD MAP OF FREMONT COUNTY IDAHO PAGE 73 Page 115 of 408re Based upon the foregoing Findings of Fact, and consistent with Idaho statues, rules, codes and requirements, the Fremont County Board of Commissioners hereby makes the following conclusions of law. CONCLUSIONS OF LAW 1. Idaho Code 40-202(6) required the Fremont County Board of Commissioners to publish a map showing the general location of all rights-of-way under its jurisdiction. 2. All notices of the public hearing were published in compliance with Idaho law including Idaho Code 40-206. 3. A public hearing was held concerning the adoption of the Official Road Map of Fremont County. At this public hearing, due process was afforded to all interested persons. The minutes of said hearing and any recording of said hearing are hereby made a part of the record. 4. The Fremont County Board of County Commissioners reviewed all information and testimony presented at the time of the public hearings and due process was allowed to all interested persons. 5. After considering all of the testimony, information, prior maps, and other evidence presented at the aforementioned public hearing, the Fremont County Board of Commissioners approved the map, hereafter referred to as Exhibit "B", as presented at the public hearing that includes the following adjustments: a. Cold Springs Rd private to public Sec 13 Twp 10 N Rge 41 E b. Hightop Trl private to public Sec 35 Twp 10 N Rge 41 E c. 1425 N going east off corner of 3125 E public to private Sec 20 Twp 9 N Rge 42 E d. Vernon Rd past Nedrow residence public to private Sec 6 Twp 8 N Rge 42 E 6. All accepted and dedicated public roads and rights-of-way in platted subdivisions as duly recorded in the Fremont County Recorder's office are deemed to be part of the Official Fremont County Road Map. 7. All roads identified in Exhibit "B" are determined by the Fremont County Board of Commissioners to be County roads, either paved, gravel or unimproved (dirt); and are not recorded in the Board of Commissioners' official minutes as vacated or abandoned; and are routinely maintained by the County. The foregoing is supported by substantial and competent evidence submitted at the public hearing and is found to be in the public interest. 8. Those roads identified in Exhibit "B" as being R.S.-2477 roads are determined by the Fremont County Board of County Commissioners as having been asserted under Federal Law R.S. 2477 and Idaho Code 40-204 and 40-107. The same are identified in official records in the Fremont County Public Works office. The foregoing is supported by substantial and competent evidence submitted at the public hearing and is found to be in the public interest. 9. All roads found on the Official Fremont County Road Map constitutes public notice that evidence has been presented to the Fremont County Board of Commissioners that the road may qualify as a public FINDING OF FACTS AND CONCLUSIONS OF LAW RE: OFFICIAL ROAD MAP OF FREMONT COUNTY IDAHO PAGE 74 Page 116 of 40854j_940 right-of-way, but has no other legal effect. Inclusion of roads on the Official Fremont County Road Map does not constitute validation or abandonment of any road. 10. Inclusion of roads on the Official Fremont County Road Map shall constitute sufficient authority for the Fremont County Board of Commissioners to exercise authority and regulation as permitted by statute, ordinance, or law. ORDER Based on the foregoing Findings of Fact and Conclusions of Law, the Fremont County Board of Commissioners hereby Order as follows: 1. The approved road map listed as Exhibit "B", together with all roads in recorded subdivisions previously accepted by the Board of Commissioners, and all roads asserted to be R.S.-2477, are hereby adopted as the Official Fremont County Road Map. 2. An Order shall be entered into the official Fremont County Board of Commissioners minutes that the approved road map listed as Exhibit "B", together with all roads in recorded subdivisions previously accepted by the Board of Commissioners, and all roads asserted to be R.S.-2477, has been adopted as the Official Fremont County Road Map. 3. That the foregoing Findings of Fact and Conclusions of Law and this Order together with the approved road map listed as Exhibit "B", hereinafter known as the Official Fremont County Road Map, shall be recorded in the office of the Fremont County Recorder. It is hereby Ordered this 2ih day of December, 2012. FREMONT COUNTY BOARD OF COMMISSIONERS Attest: d\\6 Ae: Abbie Mace Jordon Stoddard, Commissioner Fremont County Clerk FINDING OF FACTS AND CONCLUSIONS OF LAW RE: OFFICIAL ROAD MAP OF FREMONT COUNTY IDAHO PAGE 75 Page 117 of 40802/14/2013 THU 16:02 FAX 0211312013 18:07 Fremont County PrOBecutor (FAX)2086243404 Feb 13 2013 2&10PM HP LRSER.JET FRX . --. -~··. .. ···--... ... .. . ··- .... -· .... ~-........ ·~ . -----D-lS-T~R-.\G=--T~S~EV7.E~-~7J~C~O~U~RTT--~ County of Fremont State ot Idaho Filed::.==::::::::::::::::::::::::::::::::::::::::::=;--KARL H. LEWIES, ISBN: 4380 Prosecuting Attorney RYAN S. DUStiN, ISBN: 8683 Deputy Prosecuting Atto~ney RICHARD R. FRIESS, ISSN: 7820 Deputy Prosecutinq Atto~ney 22 ~est lst North St. Anthony, Idaho 83445 Telephone: CZOB) 624-4418 rax: (208) 624-3404 By: FE 8 1 4 20\3 ·! ! . . .Dt TKI D:tS"J:lU:C~ COOl\T OJt UK ~ .:ruD:tCD.L D%8'l'JttC~ jl' 'IIIII - or :mABO m AIID 1'08. 'Diil (;OO)Au or -~ FLY~NG "A" RANCH, INC, an Xaaho Corporatior., CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY FICKARO, G~ORGE TY NEDROW, and OAVIO TUK NEDROW, Pet1t1onera, vs. ) ) ) ) ) ) ) ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, ItuLiO, a ) pol~tica~ subd~vision of the state ) of Idaho, ) Respondents. ) =-~~~~~~~~--~------~---) E.C. GWALTNEY, III, and ) LANA K. VARNEY, ) Petitioners, vs. BOARD OF COUNTY COMMISSION~Re FO~ FREMON~ COUNTY, IDAHO, a political auudivieion of the state of I.daho, Respondents. ) ) ) ) ) ) , ) ) ~--------------~---------------> NOTlCB OP IDWUNO 0~ MOTION FOR. BXTSNTION OF m4 f i Case No. cv-12-580 !1, Casa No. CV-12-SBl i NOTICE OF HEARING O$ ~Z~ITION~~'S MOTION! FOR &XTEN~~ON OF ~ltE i I . i i I I I i I . ~019/027 P.002/00! p. 1 Page 118 of 408I 02/14/2013 THU 16:03 FAX ~020/027 0211312013 18:07 Fremont County Prosecutor (FAX)2088243404 P.0031003 Feb 13 2013 2:10PM HP LASERJET FAX p.2 ! PEASE TAKE NOTICE that a heari~g on Petitioner's Moti~n for txtention of Time in the above antitled act~on ha~ been a~t.for . . ! 1'2:1day, t.ha 1&• day o~ ..-zua.z;y, 2013, at:. 10 ~ 00 a ·•. , o:r at soon thereafter aa counsel may be . h&ilx NOTlCB OP IDWUNO 0~ MOTION FOR. BXTSNTION OF m4 f i Case No. cv-12-580 !1, Casa No. CV-12-SBl i NOTICE OF HEARING O$ ~Z~ITION~~'S MOTION! FOR &XTEN~~ON OF ~ltE i I . i i I I I i I . ~019/027 P.002/00! p. 1 Page 120 of 408I 02/14/2013 THU 16:03 FAX ~020/027 0211312013 18:07 Fremont County Prosecutor (FAX)2088243404 P.0031003 Feb 13 2013 2:10PM HP LASERJET FAX p.2 ! PEASE TAKE NOTICE that a heari~g on Petitioner's Moti~n for txtention of Time in the above antitled act~on ha~ been a~t.for . . ! 1'2:1day, t.ha 1&• day o~ ..-zua.z;y, 2013, at:. 10 ~ 00 a ·•. , o:r at soon thereafter aa counsel may be . h&ilx4 Fax [ ] Overnight Mail L:\BOH\7525 - Pn:mont County flles\7525.17 Gwaltney\Pie!ldins:>\Dckndant's\Sttike Extension Mollon (Mot) docx Page4 Page 125 of 40802/14/2013 THU 16:03 FAX Blake G. Hall, Esq. Nathan R. Starnes, Esq. NELSON HALL PARRY TUCKER. P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents ~021/027 ,·-·-.,·~~:;..~. -· ,_,E'" .. ~.· COl.IRT ,_,, ~ .. ~ ~ ! -< j \"' : ~ :. ·/ t: l'i . . :lY of Fremont State of Idaho F 1 4 Ot~puty Cle:k IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUI{ NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. E.C. GWALTNEY, Ill and LANA K. VARNEY. Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, Respondents. MOTION FOR ORDER SHORTENING TIME- 1 Case No. CV-12-580 Case No. CV-12-581 MOTION FOR ORDER SHORTENING TIME Page 126 of 40802/14/2013 THU 16:03 FAX COMES NOW the Respondents, by and through counsel of record, Nelson Hall Parry Tucker, P .A., and hereby move the Court for an Order shortening the time period within which the hearing required under Idaho Code§ 39-6306 must be held. Notice is hereby given that the Respondents plan to appear through their attorneys to provide argument and testimony. Dated this Lf day of February, 2013. O & ~ALL CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this .../:t:__ day of February, 2013 by the method indicated below: Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 41h N. , Suite #125 Rexburg, ID 83440 Charles A. Homer Holden, Kidwell, Hahn & Crapo, PLLC P.O. Box 50130 Idaho Falls, ID 83405 Fax (208) 523-9518 Lynn Hossner, Esq. 109N. zmt W. St. Anthony, ID 83445 Fax (208) 624-3783 MOTION FOR ORDER SHORTENING TIME- 2 [ ] Mailing [ ] Hand Delivery [)d Fax [ ] Overnight Mail [ ] Mailing [ ] Hand Delivery ~Fax [ ] Overnight Mail [ ] Mailing [ ] Hand Delivery pq Fax [ J Overnight Mail la}022/027 Page 127 of 40802/14/2013 THU 16:01 FAX Blake 0. Hall, Esq. Nathan R. Starnes, Esq. NELSON HALL PARRY TIJCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorneys for Respondents DiS 1 R:CT SEVEN COURT County of Fremont State of Idaho hied::.==============!-LFEB 1 4 2013 AB31E MACE, CLERK 3y: --------:~'""7.'":"-:::::i":::i: Deputy Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING .. A" RANCH, INC .• an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK. NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. E.C. GWALTNEY, III and LANA K. VARNEY. Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, Respondents. Page 1 Case No. CV-12-580 Case No. CV-12-581 AFFIDAVIT OF BLAKE G. HALL IN SUPPORT OF MOTION TO STRIKE MOTION FOR EXTENSION OF TIME ~007/027 Page 128 of 40802/14/2013 THU 16:01 FAX ~008/027 STATE OF IDAHO ) : ss. County of Bonneville ) BLAKE G. HALL, being first duly sworn upon oath, deposes and states as follows: 1. I am an attorney of record for Respondents and I am familiar with the facts raised in the above-referenced Petition. I am over the age of eighteen and competent to testify in Court. This affidavit is based on my personal knowledge unless otherwise stated. 2. Attached hereto as Exhibit A is a true and correct copy of the Courfs Docket in Gwaltney v. Fremont County, Fremont Case No. CV-12-581, I obtained from the Idaho Repository website on February 14,2013. 3. Attached hereto as Exhibit B is a true and correct copy of the Court's Docket in Flying A Ranch v. Fremont County, Fremont Case No. CV ~ 12-580, I obtained from the Idaho Repository website on February 14,2013. 4. Attached hereto as Exhibit Cis a true and correct copy of the Notice of Hearing faxed to me on February 13,2013 at approximately 4:07p.m. bearing the facsimile time stamp. 5. Despite filing the Motion for Extension of Time on February 12, 2013, Mr. Lewies mailed the motion. Mr. Lewies' Motion for Extension of Time was received by my office at approximately 4:45p.m. on February 13,2013. 6. Under these circumstances, and due to prior obligations and the press of other matters and responsibilities, COWlsel for Respondents cannot adequately and appropriately respond to Mr. Lewies and Mr. Dustin's Motion for Extension of Time prior to the hearing set for February 15,2013,2013. 7. Mr. Lewies and Mr. Dustin have unfairly prejudiced Respondents through the Motion for Extension of Time by depriving Respondents the time required W1der the Idaho Rules Page2 Page 129 of 40802/14/2013 THU 16:02 FAX ~009/027 of Civil Procedure to respond to the motion, and by serving the Motion for Extension of Time in a manner that was likely to deprive Respondents of a full opportunity to respond to the Motion. 8. Given prior commitments, obligations and work load, Respondents and their counsel are unfairly prejudiced by Mr. Lewies and Mr. Dustin's failure to comply with Rule 7(b)(3)(E) with respect to the Motion for Extension ofTime. This motion is particularly prejudicial in light of the pending Motion for Partial Dismissal due to lack of subject matter jurisdiction previously filed in this matter and set for hearing on February 22,2013. FURTHER YOUR AFFIANT SA YETII NAUGHT. SUBSCRIB_~!a_ AND SWORN TO, before me the undersigned, a Notary Public in and for said State, this ~y of February, 2013. Pagel LESLIE GEORGESON Notary Public State of Idaho Page 130 of 40802/14/2013 THU 16:02 FAX ~010/027 CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this -L!J_ day of February, 2013, by the method indicated below: Karl H. Lewies, Esq. RyanS. Dustin, Esq. 22 West 1st North St. Anthony, ID 83445 Fax(208)624-3404 Charles A. Homer, Esq. Holden, Kidwell, Hahn & Crapo, PLLC P.O. Box 50130 Idaho Falls, ID 83405 Fax (208) 523-9518 Lynn Hossner, Esq. 109 N. 2nd W. St. Anthony, ID 83445 Fax (208) 624-3783 [ ] Mailing [ ] Hand Delivery .[;)cl Fax [ ] Overnight Mail [ ] Mailing [ ] Hand Delivery [?c] Fax [ ] Overnight Mail l:\BOH\7525 • Fmnont Co\JIIty fUes\7S2S.l7 Gwaltncy\Pieading$\Deflmdant's\Strike EiI Page4 Page 131 of 40802/14/2013 THU 16:02 FAX ~011/027 EXHIBIT "A" Page 132 of 40802/14/2013 THU 16:02 FAX ~012/027 Idaho Repository - Case Number Result Page https://www.idcourts.uslrepository/caseNumberResults.do 1 of2 Case Number Result Page Fremont 1 Cases Found. E. c. Gwaltney# ·eta I:,.-. Fremont County Boa~d tit. County Com..;"a.S.oners, etal. Oth Gregory ~ase:CV-2012·0000581 District Flied: 11/23/2012 Subtype: Claler Judge: w. Status: Pending ms Moeller Defendants: Premont County Board of County Commlaaloners Hurt, Ronald "skip" Miller, Leroy Plilll'tlff5:Gwaltney, E. C. Vam.,-, Lana K. Peh ndllng Date/Time Judge earngs: Type of Hearing 02/26/2013 3 :30 PM Gregory w. Moeller Hearing Register Date of actions: 11/23/2012 New Case Flied • Other dalms Filing: L3 - Appeal or petition for judicial review or cross appeal or cross-petition from commission, board, o~ body to 11/23/2012 district court Paid by: Gwaltney, E. C. (plaintiff) Receipt number: 0005964 Dated: 11/23/2012 Amount: $96.00 (Credit card) For: Gwaltney, E. c. (plaintiff) Filing: Technology Cost- CC Paid by: Gwaltney, E. C. 11/23/2012 (plaintiff) Receipt number: 0005964 Dated: 11/23/2012 Amount: $3.00 {C11!1dlt card) For: Gwaltney, E. c. (plalntllf) 11/23/2012 Petition 11/23/2012 Plaintiff: Gwaltney, E. C. Notice Of Appearance Karl H. Lewles 1210512012 Order Governing Procedure On Review-Filed In Chambers 12·3·2012 0110212013 Hearing Scheduled (Hearing 01/22/2013 02:30PM) Motion To Dtsq~o~allfy Counsel 01/07/2013 Motion To Withdraw 01/07/2013 Affldevlt Of Karl Lewles 01/07/2013 Motion To Disqualify Counsel 01/07/2013 Motion-Partial Mobon To Dismiss 01/07/2013 Notice Of Hearing 01/09/2013 Notice Of Hearing 01109/2013 Certificate Of Mailing-Amended 01(11/2013 Stipulation 01(16/2013 Transcript Flied 01/30/2013 Amdavlt Of Attomev Fees 0113012013 Hearing result for Hearing scheduled on 01/22/2013 02:30 PM: Hearing Held Motion To Disqualify Counsel 0113112013 Heartng_Scheduled (Hearing 02/26/2013 03:30PM) Motion For Part•al Dismissal 01/31/2013 Objection To Attorney Fees 01/31/2013 Affidavit Of Karl L.ewles 01/31/2013 Affidavit Of Kristina Larson 02/04/2013 Order On Motions-Flied In Chambers 02/06/2013 Notrce Of ConHict Of Interest 02/06/2013 Certificate Of Mailing 02/06/2013 Notice Of Hearing 02/06/2013 Motion For Partial Dismissal 02/12/2013 Affidavit Of Karllewles 02/12/2013 Motion For Elltentlon 02/12/2013 Order--Flied In Chambers 2·4·2013 L._ ___ _:_.....:.....__ ---------------------2/1412013 9:1S AM Page 133 of 40802/14/2013 THU 16:02 FAX Idaho Repository - Case Number Result Page 2of2 Connection: Public ~013/027 https://www.ldcourts.us/repository/caseNumberResults.do 2/14/2013 9:15AM Page 134 of 40802/14/2013 THU 16:02 FAX ~014/027 EXHIBIT "B" Page 135 of 40802/14/2013 THU 16:02 FAX fZI015/027 Idaho Repository - Case Number Result Page https:/lwww.idcourts.us/repository/caseNumberR.esults.do I 1 nf?. Case Number Result Page Premont 1 cases Found. Flying A Ranch, Inc;., atal. vs. Fremont Co1.1nty Board Of.Commlsstoners, ctal. Other Gregory ase:CV-2012~0000580 District Filed; 11/23/201:1 Subtype: Claims Judge: w. Status: Pending Moaller Defeodallt$:fremont County Bo11rd Of Commissioners, Hurt. Skip Miller, Leroy Ptalntftf£:Atohley, Clen P Atchley, tmma Lou Flying A Ranch, Inc., Nedrow Family Trust Nedrow, George Ty Plclcard, Laura L. Pending hearings: Oate,/Time Judge Type of Hearing 02/26/2013 l:OO PM Gregory W. Moeller Heat1ng Register Date of actions: 11/23/2012 New Case Filed- Other Claims Filing: L3 -Appeal or petltlon for judicial review or cross appeal or cross-petition from commission, board, or body to 11/23/2012 district court Paid by: Karl Lewles Receipt number: 0005958 Dated: 11/23/2012 Amount: $96.00 (Credit card) For: Atchley, Clen P (plaintiff) Filing: Technology Cost- ct·Paid by: Karl Lewles Receipt 11/23/2012 number: 0005958 Dated: 11/23/2012 Amount: $3.00 (Credit card) For: Atchley, Clen P (plaintiff) 1112312012 Plaintiff: Flying A Ranch, lnc., Notice Of Appearance Karl H. Lew•es 1210512012 Order Governing Procedure On Review-Filed In Chambers 12·3·2012. Ol/02J2013 Hearing Scheduled (Hearing Ol/22/20i3 02:30PM) Motion To Disqualify Counsel 01/07/2013 Motion To Disqualify Counsel 01/07/2013 MOtiOn-Partial Motion To Dismiss 01/07/Z013 Notice Of Hearing 01/07/2013 Affidavit Of Karl Lewles 01/07/2013 Motion To Withdraw 01/09/2013 Notice Of Hearing 01/09/2013 CertifiCate Of Mailing-Amended · 01/11/2013 Stipulation For Substitution Of COunsel 01/14/2013 Stipulation for Substitution Of Counsel 0111412013 Plaintiff: Flying A Ranch, Inc., Notice Df Appearance Lynn Hossner 01/16/2013 Transcript Filed liearlng result for Hearing scheduled on 01/22/2013 02:30 01/22/2013 PM: Hearing Held Motton To Disqualify Counsel Motion To Withdraw 0112212013 Hearing Scheduled (Hearing 02/26/2013 03:00PM) Motion For Partial Summary Judgment 01/22/2013 Minute Entry 01/22/2013 Answer To Partial Motion To Dismiss 01/30/2013 Affidavit Of Attorney Fees 01/31/2013 Obj9ctlon To Attorney Fees 01/31/2013 Affidavit Of Kristina Larson 01/31/2013 Affidavit Of Karllewies 02/04/2013 Ordet On Motions-Flied In Chambers 02/06/2013 Notice Of Conflict Of lntel"eSt 02/06/2013 Notice Of Hearing 2/1412013 9:16AM Page 136 of 408I4JO 16/0 27 02/14/2013 THU 16:02 FAX lthlho Repository - Case Number Result Page https://www.idcourts.us/repository/caseNumberResults.do 02/06/2013 Motion For Pe~rtlal DiSmissal 02/12/2013 certificate Of Mailing 02/12/2013 Memorandum In Support Of Petitioners Petition For Review 02/12/2013 Motion For Extention 02/12/2013 Affidavit Of Karllewles 02/12!2013 order Flied In Chambers-2·4·2013 ----____ j Connection: Public \ ., tl't.£? 211412013 9:16AM Page 137 of 40802/14/2013 THU 16~02 FAX ~017/027 EXHIBIT "C" Page 138 of 40802/14/2013 THU 16:03 FAX Blake G. Hall, Esq. Nathan R. Starnes, Esq. NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, ldaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. E.C. GWALTNEY, lli and LANA K. VARNEY, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. NOTICE OF HEARJNO- 1 Case No. CV-12-580 Case No. CV-12-581 NOTICE OF HEARING ~026/027 Page 139 of 40802/14/2013 THU 16:03 FAX ~0271027 • • PLEASE TAKE NOTICE that on the 15"' day of February, 2013, at 10:00 a.m., of said day. or as soon thereafter as counsel can be heard at the Courthouse, in Fremont County, Idaho, RespondenC s Motion to Strike Motion for Extension of Time will be brought on for hearing before the Honorable Gregory W. Moeller. Dated this /~ay of February, 2013. CERTIFICATE OF SERVICE I hereby certifY that I served a true copy of the foregoing document upon the following this 4 day of February, 2013 by the method indicated below: Karl H. Lewies, Esq. KARL H. LEWIES, PLLC 343 E. 4m N. , Suite #125 Rexburg, ID 83440 Charles A. Homer Holden, Kidwell, Hahn & Crapo, PLLC P.O. Box 50130 Idaho Falls, ID 83405 Fax (208) 523-9518 Lynn Hossner, Esq. 109N. 2"d W. St. Anthony, 10 83445 Fax (208) 624-3783 NOTICE OF HBARINO- 2 [ ] Mailing [ ] Hand Delivery (>l] Fax [ ] Overnight Mail [ ] Mailing [ ] Hand Delivery [X] Fax [ ] Overnight Mail [ ] Mailing [ ] Hand Delivery [~Fax [ ] Overnight Mail Page 140 of 408• • IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY FLYING" A" RANCH, INC., an Idaho ) corporation, CLEN ATCHLEY, EMMA ) ATCHLEY, LAURA PICKARD, CLAY ) PICKARD, GEORGE TY NEDROW, and ) DAVID TUK NEDROW, ) ) Petitioners, ) ) v. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ofldaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ___________________________) E.C. GWALTNEY, III and ) LANA K. VARNEY ) ) Petitioners, ) ) v. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ofldaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ____________________________ ) Case Nos. CV-12-580 & CV-12-581 ORDER MODIFYING BRIEFING SCHEDULE This matter came before the Court for oral argument in Madison County, Idaho, on February 15, 2013. The Fremont County Prosecuting Attorney's Office, through Karl H. Lewies1 and RyanS. Dustin, has moved the Court for an extension oftime to file a brief in this matter from February 5, 2013 until February 25, 2013. The Fremont County Commissioners, 1 The Court reminds counsel that Mr. Lewies has been barred from any participation on this issue by virtue of the Court's bench ruling of January 22, 2013. Mr. Lewies cannot now represent the County in a case he earlier filed against the County. See Order on Motions (February 1, 2013). ORDER MODIFYING BRIEFING SCHEDULE -- Page 1 Page 141 of 408• • through Blake Hall, has objected to the motion, asked for an order shortening time, and moved to strike. The Court having been fully advised in the premises, HEREBY ORDERS AS FOLLOWS: 1. The motion to shorten time for hearing the Board of Commissioners' objections and motions to strike is GRANTED. However, the motion to strike is DENIED. While the Court is mindful of the excusable neglect standard generally applicable to such matters, it still reserves substantial discretion in modifying its own orders as long as it limits the prejudice to the non-moving party. The Court has attempted to do that here. 2. Mr. Dustin's request for an extension until February 25 is DENIED. However, as a courtesy to him given his recent entry into this complex matter, he will be allowed until February 19,2013 at noon to file a brief concerning the issue of whether the Fremont County Deputy Prosecutor can represent the Fremont County Board of Commissioners on these pending matters. As a result, the Commissioners' deadline for filing a response is now extended to February 25,2013, at 5:00p.m., the day before the scheduled hearing of this matter. SO ORDERED this 15th day ofFebruary, 2013. ORDER MODIFYING BRIEFING SCHEDULE -- Page 2 Page 142 of 408CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ORDER was this _1Q_ day of February, 2013, sent via US mail to the following individuals: Karl H. Lewies Ryan S. Dustin Fremont County Prosecuting Attorney's Office 22 W. 15tN. St. Anthony, Idaho 83445 Blake Hall P.O. Box 51630 Idaho Falls, Idaho 83405 Lynn Hossner 109 North 2nd West St. Anthony, ID 83445 Board of Commissioners for Fremont County c/o County Clerk 151 W. N. St. Anthony, Idaho 83445 B~ ORDER MODIFYING BRIEFING SCHEDULE -- Page 3 Page 143 of 408KARL H. LEWIES, ISBN: 4380 Prosecuting Attorney RYANS. DUSTIN, ISBN: 8683 Deputy Prosecuting Attorney RICHARD R. FRIESS, ISBN: 7820 Deputy Prosecuting Attorney 22 West 1st North St. Anthony, Idaho 83445 Telephone: (208) 624-4418 Fax: (208) 624-3404 DISTRICT SEVEN COURT County of Fremont State of Idaho Filed::.=======•-FEB 1 9 2013 ABBIE MACE, CLER~ ,.. By: -------:::--"""'l!IL~O~ Oepl,IW Clerk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC, an Idaho Corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, E.C. GWALTNEY, III, and LANA K. VARNEY, vs. Respondents. Petitioners, BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 Case No. CV-12-581 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY 1 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY Page 144 of 408COMES NOW, Fremont County Prosecutor's Office, by and through Deputy Prosecuting Attorney, RyanS. Dustin, Esq., and submits this Notice of Withdrawal of Motion to Represent Fremont County in the instant petitions for judicial review. FACTUAL SUMMARY After winning the election for Fremont County Prosecuting Attorney, but before being sworn into office, Karl H. Lewies, Esq., filed-on November 23, 2012-petitions for judicial review of decisions the Fremont County Board of Commissioners made. Then-sitting Deputy Prosecuting Attorney Blake G. Hall, Esq. became defense counsel. On January 7, 2012, Mr. Hall filed a Motion to Disqualify Mr. Lewies as counsel for petitioners before Mr. Lewies was sworn into office. On the same day, Mr. Lewies filed a motion to withdraw as counsel for petitioners. Relying on Idaho Code § 31-813, the Commissioners hired Mr. Hall in his private capacity to continue as defense counsel after he ceased to act as Fremont County Deputy Prosecutor. DISCUSSION Idaho Code § 31-813 states that the board of county commissioners has the power to "direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the prosecuting attorney, as they may direct." ld. This statute was drafted and adopted before the Idaho Constitution was adopted. See Amicus Brief, filed by Idaho Prosecuting Attorneys Association in Kline v. Power County Bd. of County Comm 'rs, attached as "Exhibit A." At the time, Idaho operated under the district attorney system whereby each district attorney covered several counties. Under that system, it was foreseeable that the district attorney would be occupied in one county and physically unavailable to act as legal counsel for another county in the district. With the adoption 2 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY Page 145 of 408of the Idaho Constitution, the legislature limited the authority of the board of commissioners to hire outside counsel to situations only where doing so was necessary. Article XVIII, Section 6 of the Idaho Constitution states that "county commissioners may employ counsel when necessary .. . . " In all other circumstances, the county prosecutor is to act as "legal adviser" to the board of commissioners and "oppose all claims and accounts against the county when he deems them unjust or illegal." I.C. § 31-2607. In 1894, the Idaho Supreme Court upheld the necessity standard, stating that, "The board of county commissioners may, when the necessity exists, employ counsel, but that necessity must be apparent, and the action of the board in each case is subject to review by the courts." Meller v. Logan County Comm'rs, 4 Idaho 44, 53,35 P. 712,715 (1894). The Court further explained the necessity standard two years later. In Conger v. Comm 'rs of Latah County, the Court said the commissioners had authority to hire outside counsel "in matters within their jurisdiction and control when necessary-for example, when the district attorney could not perform such duties by reason of being absent, or when the board must decide upon some question before them before they could have time to get the advice of the district attorney thereon." 5 Idaho 347, 355, 48 P. 1064, 1066 (1897). Later that same year, the Idaho Legislature abandoned the district attorney system in favor of the county prosecutor system, providing all counties greater access to legal counsel, thereby raising the necessity standard. See Amicus Brief, p. 9. Attorneys in Idaho are bound by the rules adopted by the Board of Commissioners of the Idaho State Bar under the supervision of the Idaho Supreme Court. I.C. § 3-408. Paragraph 11 of the Commentary to Idaho Rule of Professional Conduct 1.10 states: "where a lawyer represents the government after having served clients in private practice, nongonvemmental employment or 3 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY Page 146 of 408in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer." In this case, no conflict of interest existed at the time Karl Lewies filed the petitions for judicial review. Though he had been elected county prosecutor before filing the petitions, he had not yet assumed office. Nevertheless, he set himself on a collision course with his former clients had he not withdrawn. Moreover, under the Rules of Professional Conduct, the conflict of interest that would have arisen after he took office would not have been imputed to other attorneys in his office. Therefore, a conflict of interest would not preclude the deputy prosecuting attorney from defending the county in these petitions for judicial review. In addition, while the Fremont County Board of Commissioners did not err in relying on I.C. § 31-813, they apparently did not consider that the authority granted in that particular statute was significantly curtailed by the Idaho Constitution and subsequent case law. Even so, the Commissioners acted in good faith, believing that Mr. Lewies had a conflict of interest, which was also imputed to his deputy. The facts and circumstances of this case are rather unique in that the prosecutor-elect represented petitioners against the county after the election but before taking office. Nevertheless, Idaho law and the Idaho Rules of Professional Conduct place the representation of the county in these petitions for judicial review in the Fremont County Prosecutor's office. The Fremont County Prosecutor's office does not believe the facts of this case rise to the level of necessity required by the Idaho Constitution. Furthermore, there was no conflict of interest because Mr. Lewies withdrew as petitioners' counsel before taking office; nor was any apparent conflict of interest imputed to the deputy prosecutor according to the rules of professional conduct. However, in addition to the law and the rules of professional conduct, there are public 4 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY Page 147 of 408policy and judicial. economy considerations. Upon further review of all aspects of the unique facts peculiar to this particular situation and for the considerations stated, the Fremont County Prosecutor's Office withdraws its motion to represent Fremont County in these petitions for judicial review. DATED this _f1f! day of February, 2013. By: ~~,Esq 5 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY Page 148 of 408CERTIFICATE OF SERVICE I hereby certify that on this~ day of February, 2013, I caused a true and correct copy of the foregoing NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY to be served upon the following persons at the addresses below their names either by depositing said document in the United States mail with the correct postage thereon or by hand delivering or by transmitting by facsimile as set forth below: Blake G. Hall, Esq. Nelson Hall Parry Tucker P.O. Box 51630 Idaho Falls, Id 83405 FAX: (208) 523-7254 Charles A. Homer, Esq. Holden, Kidwell, Hahn & Crapo, PLLC Attorney for Petitioners Idaho Falls, Id 83405 FAX: (208)523-9518 Lynn Rossner, Esq. Attorney for Petitioners 109 N. 2nd W. St. Anthony, Id 83445 FAX: (208) 624-3783 Honorable Gregory Moeller 159 E. Main St. P.O. Box 389 Rexburg, Id 83440 FAX: (208) 356-5425 [ ] Mail [ ] Hand Delivery [X] Facsimile [ ] Mail [ ] Hand Delivery [X] Facsimile [ ] Mail [ ] Hand Delivery [X] Facsimile [ ] Mail [ ] Hand Delivery [X] Facsimile 6 NOTICE OF WITHDRAWAL OF MOTION TO REPRESENT FREMONT COUNTY Page 149 of 408EXHIBIT A Page 150 of 408IN THE SUPREME COURT OF THE STATE OF IDAHO, POWER COUNTY PROSECUTING ATTORNEY, F. RANDALL KLINE, Petitioner, Respondent, v. POWER BOARD OF COUNTY COMMISSIONERS, VICKI MEADOWS RON FUNK DELANE ANDERSON Respondents, Appellants. SUPREME COURT DOCKET NO. 40112-2012 AMICUS BRIEF HONORABLE DAVID C. NYE, District Judge, Presiding F. RANDALL KLINE Power County Prosecuting Attorney 543 Bannock Avenue American Falls, Idaho 83211 Petitioner/Respondent M. JAY MEYERS, and THOMAS D. SMITH Meyers Law Office, PLLC P.O.Box474 Pocatello, Idaho 83205 Co-Counsel for Respondents/Appellants DAN T. BLOCKSOM Canyon County Prosecuting Attorney's Office Civil Division 1115 Albany Street Caldwell, Idaho 83605 Attorney for Amicus Curiae Idaho Prosecuting Attorney's Association Page 151 of 408TABLE OF CONTENTS STATEMENT OF THE CASE .................................................................................................... 1 L NATURE OF THE CASE .................................................................................................... 1 II. COURSE OF THE PROCEEDIN"GS ................................................................................. 1 m. STATEMENT OF THE FACTS ...................................................................................... 1 ISSUE PRESENTED ON APPEAL ............................................................................................ 1 ARGUMENT ................................................................................................................................. 2 I. THE LEVEL OF NECESSITY REQUIRED TO JUSTIFY HIRING OUTSIDE COUNSEL WELL EXCEEDS MERE CONVENIENCE OR PERSONAL PREFERENCE .......................................................................................................................... 2 A. The relevant statutes on their face are ambiguous, and thus the Court must look beyond the plain language .................................................................................................... 2 B. The legal history of the constitutional and statutory provisions· regarding county prosecuting attorneys demonstrates that BOCCs must have a dire need to hire outside counseL .................................................................................................................................... 3 CONCLUSION ........................................................................................................................... 10 ii Page 152 of 408TABLE OF CASES AND AUTHORITIES Cases Anderson v. Shoshone County, 6 Idaho 76, 53 P. 105 (1898) .................................................. 8, 10 Barnardv. Young, 43 Idaho 382,251 P. 1054 (1926) .............................................................. 9, 10 Carrier v. Lake Pend Oreille Sch. Dist. No. 84, 142 Idaho 804, 134 P.3d 655 (2006) .................. 2 Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064 (1896) ..... 5, 6, 7, 8, 9 10, 11 Gonzalez v. Thacker, 148 Idaho 879, 231 P. 3d 524 (2009) ........................................................... 2 Hampton v. Logan County Com'rs, 4 Idaho 646,43 P. 324 (1896) ................................ 6, 9, 10, 13 Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 111 P. 3d 73 (2005) ............................... 2 Kelso & Irwin, P .A. v. State Jnsur. Fund, 134 Idaho 130, 997 P. 2d 591 (2000) ........................... 2 Mellerv. Logan County Com'rs, 4 Idaho 44,35 P. 712 (1894) ............................................. 5, 6, 9 Ravenscraftv. Blaine BOCC 5 Idaho 178,47 P. 942 (1897) ....................... ; .................. 8, 9, 10, 13 State v. Yzaguirre, 144 Idaho 4 71, 163 P. 3d 1183 (2007) ............................................................. 2 Statutes I.C. § 31-813 ......................................................................................................................... 3, 6,11 I.C. § 31-2603 ................................................................................................................................. 5 I.C. § 31-2604 ................................................................................................................................. 5 I.e. § 31-2607 ........................................................................................................................... 2, 11 R.S. § 1759 .................................................................................................................................. 3, 6 R.S. § 2051 ...................................................................................................................................... 5 R.S. § 2052 ...................................................................................................................................... 5 Idaho Constitution Art. XVlll, Section 6 .............................................................................................................. 2, 7, 9 Article V, Section 18 ....................................................................................................................... 8 Rules Idaho Rule of Professional Conduct 1.2 ....................................................................................... 12 Idaho Rule of Professional Conduct 1. 7 ....................................................................................... 11 Idaho Rule ofProfessional Conduct 1.16 ..................................................................................... 12 Idaho Rule ofProfessional Conduct 2.1 ....................................................................................... 12 Idaho Rule ofProfessional Conduct 3.1 ....................................................................................... 12 Publications Proceedings and Debates of the Constitutional Convention ofldaho 1889, Hart ed. Vol. II, .. 4, 13 Other Authorities 1993 Idaho Op. Att'y Gen. 91, (1993) ................................................................................ 9, 10, 11 ill ------- ---------------------------------------Page 153 of 408STATEMENT OF THE CASE I. NATURE OF THE CASE The nature of this case is not in dispute. Petitioner/Respondent, F. Randall Kline ("Kline"), the Power County Prosecuting Attorney, filed two petitions seeking judicial review of actions taken by the Respondents/ Appellants, the Power County Board of Commissioners (''PBOCC"). The petitions were filed in the Dis1rict Court of the Sixth Judicial Dis1rict of Power County, the Honorable David C. Nye presiding. IT. COURSE OF THE PROCEEDINGS The course of the proceedings is as accurately stated in the briefs filed by PBOCC and Kline. ID. STATEMENT OF THE FACTS The facts as jointly articulated by both PBOCC and Kline are correct, but the following brings attention to a few additional details. Before Kline filled the vacancy as Prosecuting Attorney, Paul Laggis ("Laggis") served as the elected Prosecuting Attorney. During his term, PBOCC got involved with the Gateway West Project, a joint venture between Rocky Mountain Power and Idaho Power Company. (R. Vol. ll, p. 186). According to the record, Laggis apparently had a potential conflict of interest with this project, and so PBOCC employed outside counsel, Douglas J. Balfour, Chartered (''Balfour'') for representation regarding this project. Id. The record reflects no other conflict of interest regarding the other projects for which PBOCC hired Balfour. ISSUE PR£SENTED ON APPEAL 1. What constitutes adequate necessity to justify a board of county commissioners' decision to hire outside counsel? AMICUS BRIEF DOCKET NO. 40112-2012 Pagel of14 Page 154 of 408ARGUMENT I. THE LEVEL OF NECESSITY REQUIRED TO JUSTIFY HIRING OUTSIDE COUSEL WELL EXCEEDS MERE CONVENIENCE OR PERSONAL PREFERENCE. A. The relevant statutes on their face are ambiguous, and thus the Court must look beyond the plain language. When the plain language of the statute is ambiguous, the Court can consider more than just the statute. "If the language of the statute is capable of more than one reasonable construction it is ambiguous." State v. Yzagui"e, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007); citing Carner v. Lake Pend Oreille Sch. Dist. No. 84, 142 Idaho 804, 807, 134 P.3d 655, 658 (2006). The Yzagui"e Court stated as follows: An ambiguous statute must be construed to mean what the legislature intended it to mean. [citations omitted]. To ascertain legislative intent, the Court examines not only the literal words of the statute, but the reasonableness of the proposed interpretations, the policy behind the statute, and its legislative history. 144 Idaho at 475, 163 P.3d at 1187. See also Gonzalez v. Thacker, 148 Idaho 879, 881, 231 P.3d 524, 526 (2009); Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 398-99, 111 P.3d 73, 83-84 (2005); Kelso & Irwin, P .A. v. State Insur. Fund, 134 Idaho 130, 134, 997 P.2d 591, 595 (2000). Both the constitutional and statutory language at issue in this case are ambiguous, and thus a proper decision requires a close look at the legislative history. The most ambiguous language comes from Article XVITI, Section 6 of the Idaho Constitution, which states that "[t]county commissioners may employ counsel when necessary .... " [emphasis added], but does not fwther define ''necessary." Furthermore, Idaho Code ("I.C.") § 31-2607 establishes the prosecutor as the county commissioners' legal advisor as follows: AMICUS BRIEF DOCKET NO. 40112-2012 Pagel of14 Page 155 of 408The prosecuting attorney is the legal adviser of the board of commissioners; he must attend their meetings when required, and must attend and oppose all claims and accounts against the county when he deems them unjust or illegal. To add to the confusion, LC. § 31-813 states the following: To direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the prosecuting attorney, as they may direct. This statute does not mention anything about necessity, and seems to grant a board of county commissioners (''BOCC") unchecked authority to hire outside counsel. Neither the constitution nor the state statutes clarify the level of ''necessity'' required for BOCCs to justify hiring outside counsel. This ambiguity therefore requires a look at the legislative history of the office of the County Prosecutor. B. The legal history of the constitutional and statutory provisions regarding county prosecuting attorneys demonstrates that BOCCs must have a dire need to hire outside counseL Enacted before the Idaho constitution convention, the statute which granted the BOCC authority to hire outside counsel did not specify any necessity standard. The successor of Revised Statute (''R.S.'') § 1759, I.C. § 31-813 as quoted above, grants commissioners the power to employ counsel "[t]o direct and control the prosecution and defense of all suits to which the county is a party in interest . . . with or without the prosecuting attorney ... " No other check appeared to be in place. The proceedings of the Idaho constitution convention in 1889 demonstrated that BOCCs were to hire outside counsel only when not doing so would have catastrophic results. The 1889 convention resulted in a district attorney system with no county prosecutors. The delegates' primary consideration in eliminating county prosecutors was cost cutting. Throughout the convention, the delegates emphasized that "[t]he principle all through is to get the cheapest AMICUS BRIEF DOCKET NO. 40112-2012 Page3 of14 Page 156 of 408county government we can and be efficient ... " Proceedings and Debates of the Constitutional Convention of Idaho 1889, Hart ed. Vol. II, at 1809. In criticizing the proposed alternative district attorney system, Delegate Beatty voiced the concern that the BOCCs would hire counsel whenever they wanted to, and that the BOCCs might do so on a contingency fee basis, resulting in attorney fees that would outweigh the cost of having county prosecutors. ld. at 1821, 1823-24. Delegate Reid countered this argwnent, stating that BOCCs rarely needed legal help, and that commissioners would be smart enough to hire affordable counsel. Id. at 1821-22. His opposition to creating the office of county prosecutor was based on his fundamental stance of keeping down government costs, and thus not creating any new offices. Id. at 1830. The 1889 convention contemplated that BOCCs could hire outside counsel in dire circumstances. The exchange between delegates regarding the circumstances under which outside counsel would be justified was as follows: Mr. Reid .... If the county has an important suit or has important legal business, the commissioners ought to be allowed to go into the market and get the best legal talent; and if they do not have the business they do not have to have to have [sic] the counsel. Mr. Beatty. Suppose an important murder case has to be prosecuted before the committing magistrate? Mr. Reid. There is the district attorney who is already paid by the state to do that. Mr. Beatty. But he is off in some other county. Mr. Reid .... I have seen this very system, and if it be necessary, the chairman of the board is always on hand, and upon application to him, when he sees public justice is about to fall, he can employ a man. [emphasis added]. Id. at 1821. As demonstrated by their exchange, the delegates contemplated commissioners hiring outside counsel either when the district attorney was physically unavailable, or when public justice was about to fail. Delegate Reid further suggested that AMICUS BRIEF DOCKET NO. 40112-2012 Page4 of14 Page 157 of 408commissioners should be allowed to obtain the best legal talent for important legal matters. Id. The resulting constitution did not provide any guidance for gauging necessity. The language did, however, expressly prohibit commissioners from creating new county offices. During its first legislative session in 1890-1891, the Idaho Legislature firmly established the district attorney as the BOCC's lawyer. The Legislature amended R.S. § 2052, the predecessor to I.C. § 31-2604, which set forth the duties of the district attorney, such as to prosecute or defend all cases when a county of his district is an interested party, and to give advice to the BOCC. See Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064, 1065-66 (1896). The Legislature also amended R.S. § 2051, the predecessor to I.C. § 31-2603, so as to set forth the procedure for appointing a substitute prosecutor when no district attorney existed, or the district attorney was absent or had a conflict. See id at 1065. Under the district attorney framework, the Idaho Supreme Court set the ''necessity'' standard rather high, perhaps to the level of an emergency. In 1894, the Idaho Supreme Court did not allow commissioners to hire outside counsel without some showing of necessity. In Meller v. Logan County Com 'rs, the Logan BOCC appointed and retained a legal advisor for itself. 4 Idaho 44, 35 P. 712, 713 (1894). In addition to entering a two year contract with the attorney, the Logan BOCC delegated to the outside counsel duties typically performed by the district attorney and attorney general. Id. at 713, 715. In making its ruling, the Meller Court considered the intent of the makers of the constitution, and stated as follows: While we recognize the right of the board of county commissioners, as expressed in the constitution, ''to employ counsel when necessary," we do not assent to the construction of that provision claimed by the plaintiff in error,-that it gives to the boards unbridled license to establish a new office, and to devolve upon an officer unknown to the constitution and the statutes the functions and duties which the law has already affixed to another officer or office. The board of county commissioners may, when the necessity exists, employ counsel, but that necessity must be apparent, and the action of the board in each case is subject to AMICUS BRIEF DOCKET NO. 40112-2012 Page5of14 Page 158 of 408review by the courts. To hold otherwise would, as we have already stated, be to leave the taxpayers of the state at the mercy of the boards of county commissioners, without remedy. [emphasis added]. Id at 715. The Court thus required that the BOCC face necessity before hiring outside counsel, and affirmed the district court's findings that the BOCC's actions were unauthorized, illegal, and void. Id. In ruling on the same facts but different issues on appeal, the Idaho Supreme Court in 1896 further elaborated in dicta on its view of necessity: The evident purpose and intent, both of the constitution and the statutes, was that the counties should be put to no expense on llCCOunt of attomey's services, beyond that of district attomey, but having in view the fact that each district was oomposed of several counties, an emergency might arise where the interests of the county or the people might require other legal services than those of the district attorney; and it was in anticipation of, or to meet, such a contingency, that the provision above referred to was incorporated in the constitution. We think that before the authority given to county commissioners by section 6, art. 18, of the constitution can be exercised, the necessity which authorizes it must not only be apparent, but the facts creating such necessity must be made a matter of record by the board. [emphasis added]. Hampton v. Logan County Com'rs, 4 Idaho 646, 43 P. 324, 325-326 (1896). The Court did not list either convenience or the district attorney's experience level as a primary consideration for determining necessity. In April 1896, the Idaho Supreme Court narrowed the authority that BOCCs had to hire outside counsel. Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064 (1896). In Conger, the Latah BOCC hired a private attorney to help the district attorney prosecute a crime, and then later tried to pay the private attorney. At the time of the Conger decision, the language ofthestatuteat subdivision 13, § 1759 oftheRevised Statutes, thepredecessorofi.C. § 31-813, suggested that BOCCs had free rein to hire outside counsel whenever they wished: AMICUS BRIEF DOCKET NO. 40112-2012 Page6of14 Page 159 of 408To direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the District Attorney, as they may direct. This ''free-rein" statute, however, had been enacted before the adoption of the state constitution. Article xvm, Section 6 of the Idaho Constitution imposed a new restriction on the BOCC's authority to employ outside counsel, requiring that the outside counsel be ''necessary." The free-rein statute also preceded the enactment of statutes regarding district attorneys during the Legislature's first session starting in 1890. The Conger Court therefore ruled that the BOCC could not employ counsel to assist the district attorney, even under the apparent grant of authority in the previously enacted free-rein statute. The Court noted that the Legislature had enacted this statute before Idaho adopted its state constitution and enacted the newer district attorney statutes. Finding that the older free-rein statute clashed with the new statutes and constitution, the Court reasoned that "[i]f there is a conflict, as suggested, the latest expression of the legislative will must control." Id. at 1066. The grant of authority to hire outside counsel from the previous statute, therefore, was now ''restricted to suits in which the county is a party in interest" Id. The Conger Court's examples of when outside counsel would be ''necessary'' were limited to virtual emergencies. The Court envisioned situations in which the district attorney was absent or the BOCC needed legal advice immediately: The authority given by said section 6, art. 18, of the constitution, to the county commissioners to employ counsel when necessary, was not intended to authorize them to employ counsel in matters over which they had no jurisdiction or control, but simply authorizes them to employ counsel in matters within their jurisdiction and control when necessary,-for example, when the district lltto17JeY could not perform such duties by reaon of being absent, or when the board must decide upon some question before them before they could have time to get the a [sic] advice of the district attomey thereon. AMICUS BRIEF DOCKET NO. 40112-2012 Page7 of14 Page 160 of 408ld. Again, Conger's examples do not suggest that the perceived ability and experience level of the district attorney, or the BOCC's personal preference, constituted ''necessity." The Court's decision in Ravenscraft v. Blaine BOCC did not provide much helpful guidance in describing the "necessity" standard, because the reason for outside counsel in Ravenscraft was essentially an emergency. 5 Idaho 178, 47 P. 942 (1897). In Ravenscraft, the Blaine BOCC hired outside counsel ''for the purpose of determining the validity of the act creating said Blaine county." Id. at 943. In the Ravenscraft case, taxpayers sued, claiming that the BOCC had no jurisdiction to employ outside counsel because the record did not show necessity, and the .attorney general and district attorney should have been relied on instead. Id. at 943-944. The Idaho Supreme Court determined that because ''the constitutionality of the act creating Blaine county was to be litigated, and was litigated, in the highest court in the state,'' the facts satisfied the necessity threshold. Id. at 944. The burden of demonstrating the necessity for outside counsel does not necessarily fall on the BOCC. In Anderson v. Shoshone County, the Shoshone BOCC hired outside counsel to perform certain legal services. 6 Idaho 76, 53 P. 105 (1898). Instead of arguing a lack of necessity for outside counsel, or excessive fees, the respondent merely argued that the BOCC had ignored the district attorney by hiring the private attorney. Id. at 105-106. The district attorney himself, however, did not make any objection to the hiring. Id. at 106. Noting the lack of opposition from the district attorney, the Idaho Supreme Court ruled that the BOCC was within its authority to hire outside counsel without consulting the district attorney, even though doing so would have been "eminently proper ... " I d. On the legislative end, in 1897, the Idaho Legislature abandoned the district attorney system, and created the office of the county prosecutor. By amending Article V, Section 18, the AMICUS BRIEF DOCKET NO. 40112-2012 PageS of14 Page 161 of 408---------------Legislature created the county prosecutor system, instantly increasing the number of elected attorneys available for county commissioners to consult.1 Even after the county prosecutor system was established, however, the Idaho Supreme Court continued to use the necessity standard from the district attorney line of cases. In Barnard v. Young, the Power BOCC hired outside counsel to assist the county prosecutor in suits against bondsman for not paying certain depository bonds owed to the County. 43 Idaho 382, 251 P. 1054 (1926). The BOCC hired the outside counsel with a retainer· and a twenty percent contingency fee. Id. at 1054. In addition to contesting the contingency fee contract, taxpayers contested the necessity for hiring outside counsel. Jd. Instead of going into detail as to the level of necessity required, the Court simply concluded that the BOCC's meeting minutes and the contract demonstrated the necessity as required under Hampton, Conger, and Ravenscraft, all Idaho cases involving district attorneys. In fact, the only change, if any, to the necessity standard after the implementation of the office of the county prosecutor was a further heightening of that standard. When asked whether county commissioners have the ability to retain outside civil counsel on a long-term or continuous basis, the Idaho Attorney General ("AG'') centered its answer on the necessity standard in Article XVITI, Section 6. Looking first to the definitions in the Webster dictionary and Black's Law Dictionary, the AG concluded that ''mere convenience or personal preference does not rise to the level of 'necessary' or 'necessity' in this context." 1993 Idaho Op. Att'y Gen. 91, fh. 3 (1993). Similar to the Barnard Court, the AG also relied on case law pre-dating the switch to the county prosecutor system. The AG observed that the Idaho Supreme Court struck down retention of private counsel when the contract was for two years at a fixed salary as in the 1 Per email from Kristin Ford on October 29, 2012 at the Idaho Legislative Services Office (''LSO'') the LSO does not have record of the minutes or discussion that went into this enactment. AMICUS BRIEF DOCKET NO. 40112-2012 Page9 of14 Page 162 of 408Meller and Hampton case. Id. at 4. The AG further pointed out that the Court upheld retention of private counsel in narrow factual circumstances, such as when the existence of the county was at stake (the Ravenscraft case), when the taxpayer did not contest the necessity for outside counsel (the Anderson case), and when the retention was ''for a specific legal problem and not on a retained or continuous basis" (the Barnard case). Id. In the AG's mind, the increased availability of attorneys heightened the ''necessity'' standard: The district attorney system was ultimately abandoned by returning to the county prosecutor format in 1897 by constitutional amendment. Since the framers adopted the "necessity'' language of art. 18, sec 6, expressly with a five member district attorney system in mind, it would appear that a board of county commissioners would be held to a more exacting ''necessity'' standard since there are now forty-four county prosecutors. 1993 Idaho Op. Att'y Gen. 91, fu. 3 (1993). The reversion to the county prosecutor format therefore did not change anything about the necessity standard, except perhaps ratcheting it even higher. CONCLUSION Based upon the entire legal history of this statute, the Court should construe the ''necessity'' standard as requiring a showing of one of two prongs. Specifically, the Court must find either (1) the county prosecutor's lack of physical capacity to perform a required task, or (2) the failure of public justice. Prong One: The County Prosecutor's Lack of Physical Capacity to Perform a Required Task The first prong, the county prosecutor's lack of physical capacity to perform a required task, finds deep roots in this statute's legal history, and originates from the constitutional convention itself. The delegates contemplated that county commissioners could hire outside counsel if the district attorney were off in some other county. The Conger Court similarly envisioned that outside legal counsel was appropriate when the district attorney was absent or the AMICUS BRIEF DOCKET NO. 40112-2012 Page 10 of14 Page 163 of 408commissioners needed legal advice immediately. Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064, 1066 (1896). The lack of physical capacity required to justify hiring outside counsel arguably increased after the transition to the county prosecutor system in 1897. See 1993 Idaho Op. Att'y Gen. 91, fh. 3 (1993). This lack of physical capacity is not to be confused with lack of experience or mental capacity. Specifically, the legal history of this statute does not ever envision allowing county commissioners to employ outside counsel because the county prosecutor was inexperienced. The courts, the Legislature, and the constitutional convention only discuss absence and immediacy, not ineptitude, as factors determining necessity for this prong. Under this train of reasoning, the existence of a legitimate conflict of interest could effectively render the county prosecutor "physically incapable" of working on certain projects on the county's behalf. Idaho Rule of Professional Conduct 1.7 effectively prohibits county prosecutors from representing their county if such representation involves a concunmt conflict of interest When continuing to represent the county would violate a prosecutor's ethical obligations, then that constitutes sufficient lack of physical capacity that would justify county commissioners hiring outside counsel. Therefore, a written confirmation from the county prosecutor to the county commissioners regarding a conflict of interest could reach the necessity threshold. Fundamental disagreement between the county prosecutor and the board of county commissioners could also constitute a physical lack of capacity. Although county prosecutors are the legal counsel for the board under I.C. § 31-813 and I.C. § 31-2607, county prosecutors are also subject to the rules of professional conduct. According to comment 2 of Idaho Rule of AMICUS BRIEF DOCKET NO. 40112-2012 Page 11 of14 Page 164 of 408Professional Conduct 1.2,2 if the client and lawyer have a fundamental disagreement, then the lawyer may withdraw and/or the client may discharge the lawyer. Similarly, Idaho Rule of Professional Conduct 1.16(b) lists reasons why a lawyer may withdraw from xepxesenting a client, such as a fundamental disagreement or criminal conduct by the client. 3 In addition to not bringing frivolous claims, see Idaho Ru1es of Professional Conduct 3.1, lawyers are to give candid advice to their clients, even if their clients should find such advice distasteful. Idaho Rules of Professional Conduct 2.1, Comment 1. Therefore, when the county prosecutor faces an ethical dilemma in his representation of the board, or if the county prosecutor has a fundamental 2 Idaho Rule ofProfessional Conduct 1.2, Comment [2] On occasion. however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be inCUlTed and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement q such efforts tl1'e JIIUI11tliling tmd the lawyer Juzs ll/urultunentlll disflf/1WIIttmt with the client, the lawyer mil)' witlulraw from the representlltion. See Rule 1.16(b )( 4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3). [emphasis added] 3 Idaho Rule ofProfessional Conduct 1.16(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; ( 4) the client insists upon tllking tzetion thllt the lfiHI',J1el' considers repugtlllllt or with which the lllwyer hilS ll .funtltmaenttll di.wlgreement; {5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; ( 6) the representation will result in an umeasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (1) other good cause for withdrawal exists. [emphasis added] AMICUS BRIEF DOCKET NO. 40112-2012 Page 12 of14 Page 165 of 408disagreement with the board, then this situation could also rise to the level of necessity required to hire outside counsel. Prong Two: The Failure of Public Justice The second alternative prong - the failure of public justice - can also trace its background to legal precedent and the original constitutional convention. The delegates contemplated that the county commissioners could hire outside counsel if they saw that "public justice [was] about to fail ... " Proceedings and Debates of the Constitutional Convention of Idaho 1889, Hart ed. Vol. ll, at 1820. Similarly, the Hampton Court anticipated that outside counsel would be necessary when "an emergency might arise where the interests of the county or the people might require other legal services than those of the district attorney ... " Hampton v. Logan County Com'rs, 4 Idaho 646, 43 P. 324, 325-326 (1896). Accordingly, the Ravenscraft Court allowed the hiring of outside counsel ''for the purpose of determining the validity of the act creating said Blaine county." Ravenscroft v. Blaine BOCC, 5 Idaho 178, 47 P. 942, 943 (1897) The Idaho Prosecuting Attorneys Association therefore respectfully requests that the Court carefully weigh and consider the full legal history of the county prosecutor system when rendering a decision in this matter. IP AA believes that the necessity standard previously established by this Court has not been met in this case. DATED this 31st day of December, 2012. UT~ Dan T. Blocksom Canyon County Deputy Prosecuting Attorney AMICUS BRIEF DOCKET NO. 40112-2012 Page13 of14 Page 166 of 408CERTIFICATE OF SERVICE I hereby certify that on the 31st dayofDecem.ber, 2012, a true and correct copy of the foregoing Amicus Brief was served on the following in the manner indicated. Louis Marshall Idaho Prosecuting Attorneys Association Bonner County Prosecutor's Office 127 S. First Avenue Sandpoint, Idaho 83864 louismarshall@bcpros.org Michael Kane 1087 W. River Street, Suite 100 Boise, Idaho 83 702 mkane@ktlaw.net F. Randall Kline Power County Prosecutor's Office 543 Bannock Ave. American Falls, Idaho 83211 rkline@co.power.id.us M. Jay Meyers Thomas D. Smith Meyers Law Ofice, PLLC 300N. 7th Ave. P.O. Box 4747 Pocatello,Idaho 83205 mjmatty@pocatellolaw.net tdsmith@pocatellolaw.net Idaho Association of Counties 700 West Washington Street Boise, Idaho 83702 dchadwick@idcounties.org AMICUS BRIEF [ X] u.s. Mail [ ] Overnight Delivery [ ] Hand Delivery [ ] Facsimile [ ] Email [X] u.s. Mail . ····--·-·-[ ] Overnight Delivery --- [ ] Hand Delivery· [ ] Facsimile [ ] Email [X] u.s. Mail [ ] Overnight Delivery [ ] Hand Delivery [ ] Facsimile [ ] Email [ X] u.s. Mail [ ] Overnight Delivery [ ] Hand Delivery [ ] Facsimile [ ] Email [X] U.S. Mail [ ] Overnight Delivery [ ] Hand Delivery [ ] Facsimile [ ] Email :-IkT~"--Dan T. Blocksom Canyon County Deputy Prosecuting Attorney DOCKET NO. 40112-2012 Page14 of14 Page 167 of 408Blake G. Hall, Esq. Nathan R. Starnes, Esq. NELSON HALL PARRY TUCKER, P.A 490 Memorial Drive D'STF\iCT SE\fEf\1 COURT County of Fremont State of Idaho F ii"'d :=================;--[ :EB 2 1 2013 P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorneys for Respondents A. =>IE fviACE, CLERK IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. E. C. GWALTNEY, III and LANA K. VARNEY, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, Respondents. Page I Case No. CV-12-580 Case No. CV-12-581 REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEES Page 168 of 408COME NOW Respondents, Board of County Commissioners for Fremont County, Idaho, Ronald "Skip" Hurt and Leroy Miller, by and through counsel of record, and hereby submit this reply in support of an award of attorney's fees as follows: ARGUMENT When considering whether an attorney fee award is "reasonable" the Court should examine the factors ofRule 54(e)(3), Idaho Rules of Civil Procedure. The factors of Rule 54( e )(3) include: time and labor; difficulty; skill required; prevailing charges; fixed or contingent fee; time limitations; amount and result; undesirability of the case; relationship with the client; awards in similar cases; costs of automated research; and any other factors. See I.R.C.P. 54(e)(3); see also Sun Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 769, 86 P.3d 475, 483 (2004). Mr. Lewies contends that the contract under which the parties operate should be considered. Pursuant to Rule 54(e)(3), examination of the contract between the client and attorney is not an enumerated factor. In this case, a statement of account was provided via the affidavit of Blake G. Hall providing to the Court the hourly rate billed by Mr. Hall as well as the billing entry for the work performed. While the Courts have considered the hourly rate, there is no case law that supports the position that the contract should be reviewed. The contract between Mr. Hall and the County does not identify a specified hourly rate for the services. The rate of$225.00 per hour1 is the standard and customary rate billed by Mr. Hall for his services. This rate is reasonable considering his expertise and years of practice. The bottom line in an award of attorney fees is reasonableness. See Sun Valley Potato Growers, 139 Idaho 761, 86 P.3d 475. 1 It is unreasonable to suggest that Mr. Hall, or any attorney in Idaho, should bill $20.13 per hour for their work. Page 2 Page 169 of 408In this case, the necessity for the filing of the motion arose not by any action of the County but by Mr. Lewies actions that he understood would be a direct conflict of his forthcoming role as the Fremont County Prosecutor. The County could not simply sit idly by and hope that Mr. Lewies would file a withdrawal with the Court, especially where more than a month and a half had elapsed from the date the Petition was filed. The County felt that the motion was necessary to ensure its interests would be properly protected.2 In light of the plain language of Rule 1.16, Idaho Rule of Professional Conduct, the County's decision to file the disqualification motion was even more apparent. Rule 1.16 addresses an attorney's obligation to decline or terminate representation in matters. Rule 1.16( a)( 1) specifically states that a lawyer shall not represent a client if "the representation will result in violation of the rules of professional conduct or other law." The commentary provides further support for the warranted actions ofthe County in filing the motion to disqualify, "A layer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion." Mr. Lewies was aware of his obligations to his clients and future clients in the County when he undertook a representation in conflict of Rules 1.7, Idaho Rule of Professional Conduct. (See generally Respondent's Motion to Disqualify). Thus, Mr. Lewies intentional representation was in direct violation of an ethical rule and Mr. Lewies should never have accepted the representation. By filing the Motion to Disqualify, the County was not seeking to "harass or to cause unnecessary delay or needless increase in the cost oflitigation." If any action caused unnecessary delay or needlessly increased the cost of litigation, it was Mr. Lewies decision to appear in a case that could not be resolved 2 Mr. Lewies contention that he is a prevailing party is misplaced. The filing of a motion to withdraw accomplished the same relief being requested by the Motion to Disqualify; namely, remove Mr. Lewies from any representation of the parties in this matter. As noted, the representation by Mr. Lewies was improper and a direct violation of the Idaho Rules of Professional Conduct. Page 3 Page 170 of 408prior to his taking office as the Fremont County Prosecutor. As this Court noted in its Order on Motions, the Court " ... questioned the wisdom and ethics of filing actions against an entity he had just recently been elected to represent .... " and further noted that," ... its strong disagreement with Mr. Lewies actions in this matter .... " (See Order on Motions, pp. 2-3). Ultimately, under the considerations ofRule 54(e)(3), the requested fees of$1,770.50 are both warranted and reasonable. The fees charged by counsel for the County are in line with, or lower, than the "prevailing charges" in Eastern Idaho. The time spent on the motion was not excessive and it included a novel issue of disqualification based on a concurrent conflict of interest. Mr. Hall is a well-respected and competent attorney that has nearly 35 years of experience and an expertise in municipal law. When considering an award of attorneys' fees, the contact between a client and attorney is irrelevant to the consideration. As such, the Court should grant the request for attorney's fees. CONCLUSION Based on the foregoing, Fremont County respectfully requests that this Court grant the request for attorney's fees in the amount of$1,770.50. DATED this __L[ day of February, 2013. i§f.~U Page4 Page 171 of 408. ' CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this _jJ_ day of February, 2013, by the method indicated below: Karl H. Lewies, Esq. Ryan S. Dustin, Esq. 22 West 1st North St. Anthony, ID 83445 Fax (208)624-3404 Charles A. Homer, Esq. Holden, Kidwell, Hahn & Crapo, PLLC P.O. Box 50130 Idaho Falls, ID 83405 Fax (208) 523-9518 Lynn Hossner, Esq. 109N. 2nd W. St. Anthony, ID 83445 Fax (208) 624-3783 DG] Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail L:\BGH\7525- Fremont County files\7525.17 Gwaltney\Pieadings\Defendant's\Strike Extension Motion (Mot).docx Page 5 Page 172 of 408• • MINUTE ENTRY OF TWO FREMONT COUNTY CASES DISTRICT SEVEN COURT CV-2012-580- FLYING A RANCH v. FREMON ~~~tPfKFremont State of Idaho CV2012-581-GWALTNEY v. FREMONT C N rrts FEBRUARY 15, 2013, 10:23 A.M JUDGE MOELLER- PRESIDING ALL PARTIES APPEARED BY PHONE KARL LEWIES- REPRESENTS FREMONT COUNTY RYANS DUSTIN- REPRESENTS FREMONT COUNTY BLAKE HALL- REPESENTS FREMONT COUNTY COMMISSIONERS LYNN HOSSNER- REPRESENTS FLYING A RANCH GWALTNEY$ DID NOT APPEAR MOTION TO EXTEND TIME ON EXCUABLE NEGLECT 10:23 AM INTRODUCTION OF CASE FEB 2 1 2013 ABBIE MA GAWALTENEY- AN ATIORNEY HAS NOT APPEARED, BUT CHARLES HOMER MAY BE REPRESENTING MS. BILLIE SIDDOWAY, THE DEPUTY PREVIOUSLY ASSIGNED TO THE CASE, HAS BEEN DISCHARGED BY MR. LEWIES AND RECENTLY REPLACED BY RYAN DUSTIN MR. HOSSNER ASKED TO BE EXCUSED- FLYING A RANCH DOES NOT HAVE ANY INTEREST IN THE MATIER S,ET FOR TODAY- EXCUSED BY JUDGE M9ELLER PARTIES ADVISED NO COURT REPORTER PRES~N(-WAIVED COURT REPORTER RYAN DUSTIN- BEGINS ARGUMENT ON MOTION FOR EXTENSION OF TIME TO FILE BRIEF BLAKE HALL -INTERUPTS AND ARGUES HIS PENDING MOTIONS TO STRIKE AND TO SHORTEN TIME JUDGE NOTES THAT HE INSTRUCTED THE COURT CLERK TO SET THIS FOR A HEARING ASAP IF THE MOTION FOR AN EXTENSION WAS NOT STIPULATED TO BY COUNSEL JUDGE QUESTIONS COUNSEL ON CONFLICT OF INTEREST AND ETHICAL RULE 1.7, NOTING THAT THE PRIOR DEPUTY HAD CONCLUDED THERE WAS A CONFLICT MR. DUSTIN EXLAINS WHY MS. SIDDOWAY FELT THERE WAS A CONFLICT OF INTEREST-SHE HAD PREVIOUSLY MET WITH THE FREMONT COUNTY COMMISSIONERS JUDGE ORDERS: (1) THAT AS A PROFESSIONAL COURTESTY TO MR DUSTIN, HE WILL BE ALLOWED UNTIL TUESDAY, FEBRUARY 19, 2013 AT NOON TO FILE THE PLEADINGS HE ALLOWED MS SIDDOWAY TO FILE. THE EXTENSION IS GRANTED ON THE CONDITION THAT MR. DUSTIN AND MR. LEWIES CONTACT BAR COUNSEL TO DISCUSS THE ETHICAL ISSUES RAISED IN THIS CASE. (2) TO AVOID PREJUDICE TO THE COUNTY COMMISSIONERS, THE DEADLINE FOR MR. HALL'S RESPONSE IS EXTENDED ~0 MONDAY, FEBRUARY 25, 2013, AT 5:00P.M. (THE DAY BEFORE THE HEARING). KARL LEWIES INDICATES THAT THERE IS A PENDING CASE SIMILAR TO THIS IN POWER COUNTY ooCU\JSNT £CANNSD Page 173 of 408THE COURT REMINDED COUNSEL THAT IT HAS ALREADY RULED THAT MR LEWIES CANNOT BE INVOLVED IN THE MATTER BEYOND RESPONDING TO THE REQUEST FOR ATTORNEY FEES. ANY PARTICIPATION FROM THE FREMIONT COUNTY PROSECUTORS OFFICE MUST BE THROUGH MR. DUSTIN. JUDGE WANTS TO MAKE SURE THE ATTORNEYS DO NOT COMPROMISE THEMSELVES ETHICALLY AND WISHES TO RESOLVE THE REPRESENTATION ISSUES QUICKLY SO THAT IT CAN ADDRESS THE MERITS. ON FEBRUARY 26, THE COURT WILL COME UP WITH A RESOLUTION MR HALL- RENEWS MOTIONS AND OBJECTIONS FOR THE RECORD THE COURT NOTES THE OBJECTION, BUT BELIEVES ITS ACTIONS HAVE NOT PREJUDICED THE COUNTY BECAUSE IT EXTENDED THEIR DEADLINE AS WELL COURT WILL PREPARE THE MINUTE ENTRY ON THIS MATTER Page 174 of 408• IN THE DISTRICT CO County of Fremont State of ld Filed:;======;---FEB 2 6 2013 THESTATE~~~~~~~~~J~ QJJ/2--6"80 TYPE OF HEARING: PRESIDING JUDGE: DATE: LAW AND MOTION GREGORY W. MOELLER FEBRUARY 26,2013 ATTORNEYS PRESENT: COURT REPORTER: CLERK: DAVE MARLOW DEBORAH MACE 259 FLYING A VS FREMONT COUNTY BOARD OF COMM. GWALTNEY VS FREMONT COUNTY BOARD OF COMM MR RYAN DUSTIN APPEARS ON BEHALF OF FREMONT CO MR BLAKE HALL APPEARS ON BEHALF OF BOARD OF COMM. ISSUES TODAY WOULD BE WHOM MR DUSTIN WOULD BE REPRESENTING. SECOND ON ATTORNEY FEES REF TO MR LEWIES. THE COURT GOES OVER HISTORY OF THE CASE. COMMENTS ON MR DUSTINS BRIEF. MR BLAKE AND MR DUSTIN FEELS BRIEF SHOULD RESOLVE ISSUE OF CONFLICT. 302 THE COURT COMMENTS ON ATTORNEY FEE ISSUE THE COURT HAS RECEIVED AFF OF FEES FROM MR BLAKE AND OBJECTION OF MR LEWIES. 303 THE COURT WILL ALLOW MR HALL ON ARGUMENT. MR HALL REFERS TO PAGE TWO OF DOCUMENT THE COURT SUBMITTED. 305 THE COURT REFERS TO PARAGRAPH 7 OF ITS ORDER. MR HALL STATES HE HAS FILED MEMORANDUM OF FEES. 308 THE COURT INQUIRES OF MR LEWIES OBJECTION. COMMENTS ON CONFLICT OF INTEREST. MR HALL STATES THE COURT IS NOT LIMITED TO RULE. 310 MR LEWIES ON AGRUMENT. APPRECIATES THE COURTS DESIRE TO GET THIS RIGHT. COMMENTS ON 12-117 IN IDAHO CODE. 313 THE COURT INQUIRES OF MR LEWIES REF FILING. REFERS TO PARAGRAPH FOUR OF MR HALLS AFFD. SCANNED Page 175 of 408• I 344 MRHALLONREBUTTAL 345 THE COURT WILL TAKE THE MATTERS UNDER ADVISEMENT. ASKS AS TO RECORD BEING COMPLETED ON THIS CASE. MR HALL WILL SUPPLY THE COURT WITH RECORD. MR HOMER HAS NEVER ENTERED AN APPEARANCE. THE COURT WOULD LIKE CASES TO BE ON TRACK. A NOTICE OF LODGING NEEDS TO BE SENT. MR HALL COMMENTS ON TWO SEPARATE CASES. THE COURT HAS NOT CONSOLIDATED AT THIS POINT. GWALTNEY ARE NOT REPRESENTED AT THIS TIME. THE COURT STATES A NOTICE OF LODGING NEEDS SENT TO ALL PARTIES. MR HALL IS TO COMMUNICATE TO MR HOMER. BRIEF WILL BE DUE IN 35 DAYS. MR HALL WILL MAKE MR HOMER A WARE OF ISSUES. THE COURT DOES NOT SHOW IN RECORD WHERE MR LEWIES PROVIDE NOTICE. MR LEWIES HAS SENT CERT. LETTER. THE COURT WILL TAKE UNDER ADVISEMENT. MR LEWIES HAS A FEW EXHIBITS. 352 MR LEWIES WILL OFFER AS AN AUTHORITY. PUBL OF AMERICAN BAR ASSOC. ANNOTATED RULE 1.11 REPOSITORY RECORD. THE COURT WILL TAKE JUDICIAL NOTICE. THE COURT WILL TAKE BOTH FILES BACK TO REXBURG. Page 176 of 408' ·- DISTRICT SEVEN COURT County of Fremont State of Idaho Filed:r========i--.. 13 2013 IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTill( '1 OF THE STATE OF IDAHO, IN AND FOR FREMONT ~~TiBBIE MACE, CLEF-tK y. 0 1 _, ' FLYING"A" RANCH, INC., an Idaho ) corporation, CLEN ATCHLEY, EMMA ) ATCHLEY, LAURA PICKARD, CLAY ) Case Nos. CV-12-580 & CV-12-581 PICKARD, GEORGE TY NEDROW, and ) DAVID TUK NEDROW, ) ) Petitioners, ) ) v. ) NOTICE OF LODGING ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state of Idaho, ) \ .,...... ,-- ~ . ' , .. \, RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ) E. C. GWALTNEY, III and ) LANA K. VARNEY ) ) Petitioners, ) ) v. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ofldaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ) NOTICE IS HEREBY GIVEN that a record of the appealed proceedings in the above-captioned matter and the court's record have been lodged with the District Court. The parties in this matter have fourteen ( 14) days from the date on which this notice is served in which to file with the District Court, in writing, any objections related NOTICE OF LODGING -1- DOCUMENT £CANN:::D ;~·:pu ·y t.,. (_'n< Page 177 of 408to the contents of the transcript or record. Should there be no objections to the contents ofthe transcript or record, the transcript and record shall be deemed settled at the expiration of the aforementioned fourteen (14) day period, and the transcript and record shall be filed within the District Court within fourteen (14) days of settlement of the transcript and record. The briefing schedule will be as follows: 1. 2. 3. 4. 5. Petitioner's brief shall be filed with this Court within 35 days of the date on which notice that the transcript and record have been filed with this Court is served; Respondents' brief shall be filed within 28 days after service of Petitioner's brief; Petitioner's reply brief, if any, shall be filed within 21 days after service of Respondents' brief. A courtesy copy of any pleading filed in this matter, including the briefs, shall be lodged with the District Court for Madison County, Idaho, 134 E. Main, Rexburg, Idaho 83440. When all the foregoing conditions have been complied with, Petitioner shall schedule a hearing for oral argument in Fremont County on the next convenient law and motion day following the expiration of the time limit for Petitioner's reply brief. Notice of the hearing date shall be served upon this Court and counsel for Respondents. In the event that no hearing is scheduled, this Court will assume that the matter has been submitted for resolution without oral argument. So ordered. NOTICE OF LODGING -2-Page 178 of 408·- ·-Dated this f3~ day of March, 2013. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ORDER GOVERNING PROCEDURE ON REVIEW was this IS-H'" day ofMarch, 2013, sent via US mail to the following individuals: Lynn Hossner, Esq. 109N. 2ndw. St. Anthony, ID 83445 Blake G. Hall, Esq. Nelson Hall Parry Tucker P.O. Box 51630 Idaho Falls, ID 83405 Charles A. Homer, Esq. Holden, Kidwell, Hahn & Crapo, PLLC P.O. Box 50130 Idaho Falls, ID 83405 Board of Commissioners for Fremont County c/o County Clerk 151 W. N. St. Anthony, ID 83445 Ryan Dustin. Fremont County Deputy Prosecuting Attorney 22 W. lstN. St. Anthony, ID 83445 NOTICE OF LODGING -3-Page 179 of 408By: ..-t1 DATED this ('3 day of March, 2013. NOTICE OF LODGING -4-Page 180 of 408·- ·-FILED IN CiL\\!aERS ,\T R;~X:1L' MADISON COUi~TY, IDAHO. Date. M llcc.lo. ~ 4 . Q..O /3 Time ~0~. By c.piAJ ~eo. o tcT1ol IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY FLYING "A" RANCH, INC., an Idaho ) corporation, CLEN ATCHLEY, EMMA ) ATCHLEY, LAURA PICKARD, CLAY ) Case Nos. CV-1117-a& CV-12-581 PICKARD, GEORGE TY NEDROW, and ) DAVID TUK NEDROW, ) ) Petitioners, ) ) v. ) MEMORANDUM DECISION RE: ) RULE 11 SANCTIONS BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ofldaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ____________________________ ) E.C. GWALTNEY, III arid ) LANA K. VARNEY ) ) Petitioners, ) ) v. ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ofidaho, ) RONALD "SKIP" HURT, individually and ) in his official capacity, and LEROY ) MILLER, individually and in his official ) capacity, ) Respondents. ) ___________________________) SCANNED MEMORANDUM DECISION RE: SANCTIONS - Page 1 Page 181 of 408I. PROCEDURAL HISTORY AND STATEMENT OF FACTS On November 23, 2012, attorney Karl H. Lewies ("Lewies") filed two separate petitions seeking judicial review of decisions made by the Board of Commissioners for Fremont County ("the Commissioners" or ''the County"). 1 These petitions were filed on behalf of two separate groups of petitioners: A. Case No. CV -12-580 was filed on behalf of Flying "A" Ranch, Inc., an Idaho Corporation, Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow (collectively referred to as "Flying 'A"'); and B. Case No. CV-12-581 was filed on behalf ofE.C. Gwaltney, III and Lana K. V amey (collectively referred to as "Gwaltney"). 2 At the time of filing, Lewies was the prosecutor-elect for Fremont County, having been duly elected in the general election held November 6, 2012. Lewies had not yet taken office when he filed the petitions; he was sworn-in on January 14, 2013. Lewies defeated the incumbent Fremont County prosecutor in the primary election on May 15, 2012, and then ran unopposed in the general election On January 2, 2013, the County, through its then deputy prosecuting attorney, Blake Hall ("Hall"), set a hearing for a motion to disqualify Lewies from representing the Petitioners and the County in these matters. On January 7, 2013, the County filed a motion to disqualify and requested attorney fees. In response, Lewies filed a motion to withdraw as counsel for Petitioners later that same day. He filed an affidavit acknowledging "a conflict of interest will arise in connection with my continued representation of Petitioners in this case."3 Lewies did not withdraw his claim to represent the County on these matters. On January 11, 2013, the County filed a substitution of counsel, advising the Court that the County had retained Hall and his law firm, Nelson, Hall, Parry, & Tucker, P.A., to defend it in the cases at issue here. On January 14, 2013, Lewies and Lynn Hossner ("Hossner") 1 The actions for which Petitioners seek judicial review took place on October 29, 2012. Petition for Judicial Review,~ 8 (November 23. 2012) (CV-12-580); and Petition for Judicial Review,~ 8 (November 23, 2012) (CV-12-581). 2 The Court notes that although both cases concern public roads designations made by Fremont County, the cases have not been consolidated because the facts and issues are dissimilar. However, the issue presented to the Court in this decision is identical in both cases. 3 Affidavit of Karl H. Lewies, p. 2 (January 7, 2013). The Court notes that at oral argument Lewies conceded that due to his busy schedule, he had forgotten to withdraw until he received the County's motion. MEMORANDUM DECISION RE: SANCTIONS - Page 2 Page 182 of 408stipulated to the substitution ofHossner for Lewies in representing Flying "A."4 No attorney has yet made an appearance for Gwaltney. Oral argument took place on January 22, 2013 on Hall's motion to disqualify and Lewies' motion to withdraw. The Court has previously summarized that hearing as follows: The Court noted that Mr. Lewies had failed to withdraw voluntarily until the County had filed its motion to disqualify him. It also questioned the wisdom and ethics of filing actions against an entity he had just recently been elected to represent on behalf of clients he could no longer represent. Mr. Lewies attributed the delay to an oversight and argued that no rule of professional conduct was violated. He claimed that his clients were operating under time constraints due to the statute of limitations. He agreed that he should no longer represent his former clients or the County on these matters in the future. Mr. Lewies questioned the authority of Mr. Hall to file any motions or argue on behalf of the County. Mr. Hall responded by noting that he was still an acting deputy prosecutor for the County when he filed his motions and that he is now acting under a contract with the County Commissioners. The Court noted that Mr. Lewies' actions had essentially deprived the County oflegal counsel in this matter. Mr. Lewies asserted that his newly appointed deputy prosecutor, Billie Siddoway, could take over his representation of the County in this matter. Mr. Hall disagreed and asked for attorney fees incurred by the County in filing both motions.5 At the conclusion of the hearing, the Court barred Lewies from representing either his former clients (Petitioners) or his new client (the County) in this matter, thereby effectively granting both the motion to disqualify and the motion to withdraw. The Court further concluded: ... the County is entitled to recover its attorney fees incurred in filing the motion to withdraw. Any fees will be awarded against Mr. Lewies personally, but not against his clients, the Petitioners. Mr. Hall may file a request for fees with appropriate supporting documents within 14 days. Mr. Lewies will be allowed to appear for purposes of contesting the attorney fees only.6 The Court allowed Lewies' newly appointed deputy, Billie Siddoway ("Siddoway"), 14 days to file a brief explaining why the Fremont County Prosecutor's Office should be allowed to continue representing the County on these matters, rather than an attorney of the Commissioners' choosing.7 4 Stipulation for Substitution of Counsel (January 14, 2013). 5 Order on Motions to DisqualifY Counsel, Withdraw, and Dismiss Individual Respondents, p. 2 (February 1, 2013). 6 /d., p. 3. 7 !d. MEMORANDUM DECISION RE: SANCTIONS - Page 3 Page 183 of 408Following the hearing, Siddoway filed a Notice of Conflict of Interest on February 6, 2013.8 She was "terminated" by Lewies four days later. Lewies then appointed Ryan Dustin ("Dustin") to serve as his new deputy prosecutor on February 11, 2013.9 At a hearing on Lewies' motion for an extension of time for briefing, held February 15, 2013, the Court granted the extension on the express condition that both Lewies and Dustin visit with counsel from the Idaho State Bar ("bar counsel") about the ethical ramifications of Lewies conduct in these matters. Shortly after visiting with bar counsel, Dustin filed notice with the Court that his office was withdrawing from representation ofthe County on the two petitions. 10 The County filed a timely affidavit of attorney's fees and Lewies filed an objection. Oral argument took place on February 26, 2013, after which the Court took the matter under advisement. II. STANDARD OF REVIEW An abuse of discretion standard is used in reviewing sanctions imposed pursuant to I.R.C.P. 11(a)(l). Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P .2d 993, 1 000 ( 1991) (citing Anderson v. Ethington, 103 Idaho 65 8, 660, 651 P .2d 923, 925 (1982)). The United States Supreme Court has explained that because the trial court is "familiar with the issues and litigants, [it] is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11." Cooter & Gel! v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Likewise, the decision to grant or to deny a motion to disqualify counsel is within the discretion of the trial court. Weaver v. Millard, 120 Idaho 692, 696, 819 P.2d 110, 114 (Ct.App. 1991 ). All discretionary decisions require the Court to rightly perceive the issue as one of discretion, act within the outer boundaries of the discretion allotted, and reach a decision through the exercise of reason. Associates Northwest, Inc. v. Beets, 112 Idaho 603, 605, 733 P.2d 824, 826 (Ct. App. 1987). 8 Notice of Conflict of Interest (February 6, 2013). 9 Affidavit of Karl H. Lewies, ~ 17 (February 12, 2013). 10 Notice of Withdrawal of Motion to Represent Fremont County (February 19, 2013). MEMORANDUM DECISION RE: SANCTIONS - Page 4 Page 184 of 408III. DISCUSSION A. The Court has the discretion to award sanctions for "misguided filings" and "litigative misconduct" pursuant to Rule ll(a)(l). At the conclusion of the January 22, 2013 hearing, the Court invited the County to submit an affidavit setting forth the attorney fees reasonably incurred in seeking Lewies' disqualification. Although much of the oral argument and briefing has since focused on a prevailing party analysis under I.R.C.P. 54( e) and I.C. § 12-121, the Court has concluded that such an effort is misplaced. 11 The Idaho Supreme Court has made clear that "[t]he reasons for which attorney fees may be awarded pursuant to I.C. § 12-121 and I.R.C.P. 54(e)(l) are not reasons that will support an award of sanctions pursuant to I.R.C.P. 11(a)(1)." Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 96,803 P.2d 993, 1002 (1991). Instead, the heart of the issue before the Court appears to more closely fall under the provisions ofRule 11 ofthe Idaho Rules of Civil Procedure. Rule 11(a)(l) provides: Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one (1) licensed attorney of record of the state ofldaho, in the attorney's individual name, whose address shall be stated before the same may be filed .... The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the signer's knowledge, information, and belief after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. The Idaho Supreme Court has explained, "[t]he intent of the rule is to grant courts the power to impose sanctions for discrete pleading abuses or other types of litigative misconduct." Campbell v. Kildew, 141 Idaho 640, 650, 115 P.3d 731, 741 (2005) (emphasis added). Rule 11 has been construed as "a management tool to be used by the district court to weed out, punish and deter specific frivolous and other misguided filings." Lester v. Salvino, 141 Idaho 937, 11 In the event I.R.C.P. 54( e) and I.C. § 12-121 were controlling, the Court notes that the record would support findings that the County was the prevailing party and that both petitions were brought and pursued unreasonably. MEMORANDUM DECISION RE: SANCTIONS - Page 5 Page 185 of 408940, 120 P.3d 755, 758 (Ct. App. 2005) (emphasis added). To properly impose Rule 11 sanctions, the Court must not base its decision on acts that are "part of the trial itself," but rather it must only consider "the attorney's conduct in the filing of pleadings, motions or other papers." Riggins v. Smith, 126 Idaho 1017, 1021, 895 P.2d 1210, 1214 (1995). Given the totality of the circumstances present in this matter, and for the reasons set forth below, the Court concludes that Lewies' filing of these petitions was clearly misguided and his failure to immediately withdraw as counsel for both parties amounted to litigative misconduct. While such a conclusion logically gives rise to ethical concerns under the Idaho Rules of Professional Conduct ("IRPC"), such matters are not questions typically answered by this court. 12 Rather, the Court must review this matter pursuant to its "court management" role and act using its inherent discretion to ensure that the adjudication of this matter is fair to all sides. When considering a motion to disqualify counsel, "[t]he goal of the court should be to shape a remedy which will assure fairness to the parties and the integrity of the judicial process." Weaver v. Millard, 120 Idaho 692,697, 819 P.2d 110, 115 (Ct. App. 1991). B. The circumstances presented by these cases justify imposition of sanctions under Rule ll(a)(l). The Court is mindful of its dual role in protecting the integrity of the judicial process and policing litigative misconduct. This is why Rule 11 allows a court to impose sanctions against an attorney or parties on the motion of a party or sua sponte. Although discretionary, the Court is mindful that "[t]he power to impose sanctions under this rule is exercised narrowly, focusing on discrete pleading abuses or other types of litigative misconduct within the overall course of a lawsuit." Kent v. Pence, 116 Idaho 22, 23, 773 P.2d 290, 291 (Ct. App. 1989). In the cases at bar, Lewies filed two petitions for judicial review against Fremont County just 17 days after winning the general election. Inasmuch as he ran unopposed in the general, he had essentially known since May 2012 that he would be representing the County in January 2013. The Court understands Lewies' contention that since he had not yet been sworn-in, no 12 See Idaho Rules of Professional Conduct, Rules 1.7 through 1.11. The Court urged Lewies to visit with bar counsel about the ethical issues raised by having his deputy represent the County in an action that was initiated by Lewies against the County. Shortly after doing so, Dustin filed notice that he and Lewies would acquiesce and allow the County to seek independent outside counsel to represent them on this matter. In so doing, the Court notes that Dustin and Lewies did not concede they were ethically obligated to take such action, but were doing so for "public policy and judicial economy considerations." Notice of Withdrawal of Motion to Represent Fremont County, p. 5. MEMORANDUM DECISION RE: SANCTIONS - Page 6 Page 186 of 408actual conflict of interest existed. However, even ifLewies' actions did not amount to an ethical violation under the IRPC, that is not controlling on the Court's analysis. The Court must still consider the questions of whether Lewies' actions adversely affected the integrity of the judicial process and/or constituted the type of litigative misconduct governed by Rule 11. The Court finds that regardless of the ethical ramifications, Lewies' filing of the petitions against a known, future client was a significant offense against the integrity of the judicial system. Fremont County voters were entitled to expect that the person they had just elected as County prosecutor would not be filing new legal actions against the County on behalf of private individuals. Similarly, the Commissioners had every reason to be concerned when they were sued in both their official and personal capacities by the incoming county attorney. By so doing, Lewies initiated a chain of events that any reasonable attorney should have anticipated would create mistrust and animosity from everyone involved-greatly undermining public confidence in the outcome of both cases. It is simply unfathomable to the Court how Lewies could have failed to understand that his actions would almost immediately deprive Petitioners of legal counsel since he would have to immediately withdraw before he was sworn-in. Likewise, Lewies should have anticipated that his actions would deprive his future clients, the County and the Board of Commissioners, of representation since they would be understandably uncomfortable having Lewies or his deputies defend them in legal matters he initiated against them. Therefore, the Court concludes that Lewies' decision to sign and file the petitions was clearly misguided and adversely affected the integrity of the judicial process. The Court notes that with the application of wisdom and common sense, one could have reasonably predicted that such conduct would meet with the stem disapproval of Mr. Lewies' future clients, the County and Commissioners, as well as the Court, whose duty it is to safeguard the integrity of the judicial process. The Court also finds that the timing of Lewies' filing of the petitions, coupled with his subsequent delay in withdrawing as counsel for Petitioners and the County, constitutes the type oflitigative misconduct Rule 11 was intended to rectify. Here, Lewies' actions have directly delayed adjudication of the petitions for judicial review because the Court has been required to spend over two months dealing with issues related to representation, rather than hearing the merits of the petitions. Although Lewies eventually withdrew as counsel for Petitioners before he was sworn-in, it was only in response the County's motion to disqualify him. Even then, he MEMORANDUM DECISION RE: SANCTIONS - Page 7 Page 187 of 408only withdrew as counsel for Petitioners-he initially refused to withdraw as counsel for the County. Lewies later fired his first deputy, Siddoway, after she filed a notice of conflict with the Court. 13 Lewies only changed his mind after he discussed the matter with bar counsel at the urging of the Court. Although Flying "A" has now obtained new counsel, Gwaltney is still unrepresented. While this appears to be a case of first impression, based upon the undisputed record before it, the Court must conclude that Lewies should be subject to Rule 11(a)(l) sanctions for failing to exercise "reasonableness under the circumstances ... before signing and filing the [petitions]." Riggins v. Smith, 126 Idaho 1017, 1021, 895 P.2d 1210, 1214 (1995). Although contested by Lewies, the Court deems appropriate the decision by the County to retain Hall, its former civil deputy, to defend it in these cases Lewies' contentions that the County's hiring of Hall and subsequent response to this matter were motivated by an "improper purpose" are irrelevant. 14 Despite any animosity between Lewies and the current County Commissioners, the Idaho Rules of Civil Procedure did not require the County to remind him of his legal and ethical duties before filing the motion for disqualification. Lewies also contends the County's motion was premature, since he had not been sworn-in and, therefore, an actual conflict did not yet exist. Of course, this ignores the fact that he had not withdrawn as counsel for the County prior to the hearing. Additionally, the Idaho Court of Appeals has held that "a motion to disqualify opposing counsel should be filed at the onset of the litigation, ... once the facts upon which the motion is based have become known." Crown v. Hawkins Co., Ltd., 128 Idaho 114, 122-23, 910 P.2d 786, 794-95 (Ct. App. 1996). By acting when it did, one week before Lewies was sworn-in; the County may have actually prevented Lewies from suffering the ethical consequences of failing to withdraw sooner. Lewies should have known at the time of filing the petitions that he would unable to see either case through to completion -this is undisputed. Even if the Petitioners were acting under time constraints, that does not justify Lewies acting in an ethically questionable manner. From 13 Notice of Conflict of Interest, p. 2. 14 Affidavit of Karl H. Lewies, ~ 10 (January 31, 2013). The Court disagrees with Lewies' account ofthe conversation that took place after the hearing on January 22, 2013, because he appears to imply the Court was critical of the County Commissioners and Hall. While the Court acknowledges that it briefly met with Lewies in chambers following the January 22, 2013 hearing, the Court merely advised him to avoid allowing a political grudge to interfere with his professional judgment. The merits of the cases were not discussed. The Court initiated this conversation after consulting Idaho Code of Judicial Conduct, Canon 3(D), which provides, in part: "Judges are encouraged to bring instances of unprofessional conduct by judges or lawyers to their attention in order to provide them opportunities to correct their errors without disciplinary proceedings; ... " MEMORANDUM DECISION RE: SANCTIONS -Page 8 Page 188 of 408the moment Lewies knew of his clients' legal claims against the County, he should have acted promptly to assist them in obtaining new counsel to file the petitions. Instead, he filed the petitions and set in motion a series of events that would not only result in an imminent conflict of interest with Petitioners, but also a conflict of interest with the County. Any existing bad feelings between Lewies and the Commissioners would only be escalated by such provocative conduct. An objective view of the circumstances suggests that it was unreasonable and misguided for Lewies to file an action against a known future client. Such conduct would predictably create delay, additional fees, and lack of continuity of representation. In essence, Lewies pursued the one course of action that would render him useless to both his current and future clients. As a result of Lewies' actions, over two months have been wasted sorting through the issue of representation. Setting aside considerations of judicial economy, Lewies' failure to timely withdraw from the case caused the County to incur attorney fees unnecessarily. Therefore, the Court concludes that Lewies' actions in signing and filing the petitions and in failing to promptly withdraw were "unreasonable," "misguided," and constitute the type of "litigative misconduct" which entitles the County to an award of fees pursuant to Rule 11(a)(1). Since Lewies' is solely responsible for the tactical and ethical choices made in this matter, especially after he withdrew from representing the Petitioners, any fees assessed should be awarded against him personally, not against Petitioners. C. Reasonableness of the requested fees Rule 11(a)(1) permits a court to impose, as a sanction against an attorney, the "reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." The County is seeking $1,777.50 in attorney fees for 7.9 hours of work billed at $225 per hour. Of the 7.9 hours billed, approximately 4.4 hours were for the drafting of the motion. An additional3.5 hours were billed for work performed on the day of the hearing. 15 Normally, the amount of attorney's fees awarded should be that sum which the trial court in its discretion determines to be reasonable. Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P .2d 1299 (1977). The Court notes that it should not blindly accept the amount of fees claimed. Craft Wall of Idaho, Inc. v. Stonebreaker, 108 Idaho 704,706,701 P.2d 324,326 15 Affidavit of Attorney's Fees,~ 4 (January 30, 2013). MEMORANDUM DECISION RE: SANCTIONS - Page 9 Page 189 of 408.---------c----------------------------------~-•• ·-(Ct.App. 1985). Therefore, the Court must independently review the reasonableness of the fees requested in this matter. The Court has previously concluded that it was both necessary and proper for the County to ask Hall to file the motion for disqualification and retain him to represent it on the petitions. The time he spent researching and drafting the motion appears reasonable, especially given what Lewies' current deputy conceded was the ''unique" nature of the issue presented. 16 If once Lewies had filed his motion to withdraw as counsel for Petitioners he had also agreed that the prosecutor's office would not continue to represent the County on these cases, the Court would have only granted fees for the 4.4 hours of research and drafting. However, due to Lewies' insistence that the prosecutor's office should continue to represent the County in defending against the two petitions, the motion had to be heard. Therefore, an award of fees for Hall's appearance at the hearing and arguing on behalf of the motion is also an appropriate sanction. Applying the factors set forth in Rule 54(e)(3), the Court finds and concludes that this matter did require considerable time and labor. The issues presented required significant skill to address, given the uniqueness of the issue. The "experience and ability of the attorneys" of Hall in this "particular field of law" was high and necessary. The total hours billed appears to be reasonable given the amount of work performed and the caliber of the representation. At oral argument, Lewies argued without rebuttal that Hall offered his services to the County at the rate of$150 per hour in a letter dated November 20, 2012. The County agreed to retain him on those terms. 17 The Court finds that this is an appropriate and reasonable rate, absent evidence that the County actually paid more than $150 for Hall's services. 18 This is well within the range of ''the prevailing charges for like work" in Eastern Idaho and consistent with the understanding reached between Hall and the County. In the exercise of its discretion, the Court will reduce Hall's requested fee accordingly and concludes that a fee of$1,185.00 is an 16 Notice of Withdraw~/ of Motion to Represent Fremont County, p. 5 17 In the letter, Hall offered his fees to the County at the rate of $150 per hour. Acceptance of the offer by the County was noted by the signatures of the County Commissioners (Ronald Hurt, LeRoy Miller, and Jordon Stoddard) on the attached page. See Letter to Fremont County Board of Commissioners (November 20, 2012). The County made no objection the Court's consideration of the letter and offered no rebuttal to the assertion that Hall was actually paid no more than $150.00 per hour for his work on this matter. 18 At the hearing and in briefing, Lewies argued that as a salaried deputy Hall's fee amounted to only $20.13 per hour. This questionable assertion is based on the unsubstantiated assumption that Hall, who was previously paid $805.94 per week by the County, was actually working for 40 hours per week for the County. MEMORANDUM DECISION RE: SANCTIONS - Page 10 Page 190 of 408appropriate sanction under Rule 11 (a)( 1) and a reasonable amount of attorney fees under Rule 54(e)(3). 19 III. CONCLUSION The Court is mindful of the animosity that has attended these proceedings; however, it remains hopeful that the resolution of this portion of the case will allow the parties to move forward constructively on the merits of the pending matters. Although there were serious lapses in judgment in how these matters were initiated, much wisdom was evident in the ultimate decision by Lewies and Dustin to withdraw their efforts to represent the County in these two matters. Nevertheless, for the reasons set forth above, the Court hereby rules as follows: A. Lewies' conduct in filing the petitions against the County, failing to promptly withdraw as attorney for Petitioners, and initially refusing to allow Hall to represent the County on these matters, was clearly misguided and amounted to sanctionable misconduct under Rule 11(a)(l), as interpreted by the Idaho appellate courts in Campbell and Lester; and B. Fremont County's request for attorney fees is GRANTED IN PART. The County is hereby awarded $1,185.00 in attorney fees against Karl H. Lewies personally, pursuant to Rule 11(a)(l) and Rule 54( e). SO ORDERED this2j_ty of March, 2013. 19 7.9 hours@ $150/hour = $1,185. MEMORANDUM DECISION RE: SANCTIONS - Page 11 Page 191 of 408CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing 2 :Tt4 MEMORANDUM DECISION was this 4 -day of March, 2013, sent via US mail to the following individuals: Karl H. Lewies Ryan Dustin Fremont County Prosecuting Attorney's Office 22 W. 1stN. St. Anthony, ID 83445 Blake G. Hall, Esq. Nelson Hall Parry Tucker P.O. Box 51630 Idaho Falls, ID 83405 Board of Commissioners for Fremont County c/o County Clerk 151 W. N. St. Anthony, ID 83445 Lynn Hossner, Esq. 109N. 2nd W. St. Anthony, ID 83445 By: 111 DATED this 2'1 - day of March, 2013. MEMORANDUM DECISION RE: SANCTIONS- Page 12 Page 192 of 408•• BERS AT REXBURG, UNTY, lDAHO. Date. -..L....JL..f=-'...L.:.---41--J-=.;=-...!...-... __ _ Time ~=--~~=-~~--r---=---By IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY FLYING "A" RANCH, INC., an Idaho corporation, et a/, ) ) ) ) ) Case Nos. CV-12-580 & CV-12-581 Petitioners, v. ) ) FINAL JUDGMENT ON RULE 11 SANCTIONS _BO.A@ OF fQJINTYS;QMMISS.JON_!::RS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, eta/, 1 -- - ------) ) ) Respondents. ) E.C. GWALTNEY, III, eta/, ) ) Petitioners, ) ) v. ' ) ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a ) political subdivision of the state ofldaho, eta/, ) ) Respondents. ) _____________________________) On March 29, 2013, the Court issued its Memorandum Decision re: Rule 11 Sanctions. The issues determined by that ruling having been fully adjudicated, and good cause appearing therefore, - I'lf IS HEREBY ORDERED, ADJUDGEDAND_OECREED thatR.espon,Qent F~ont County is granted final judgment against attorney Karl H. Lewies, personally, in the amount~ .... , _ ........ ~ n. ~ '"" I ........ · 'S'\ 1\ I C / ''• $1,185.00. ...: '\>' ..••••••• c0'•., -~<.. * .·· -,l.V.Ls··. '/·'• ~.:. ........ • • <\) ··~' ::<>:)) ~ ·.-~\ :.' ,~:;:,_·........ ~ ~ # w·''"'-'<::::;, "'-' ("')o ~ ~ , __ :~ ~) o: • " ~ ' .. o •,;::s:: ~~ c:::-: c.-::.~ f ~~.o ·'-"' ;:...•r,..~., ,.....__,.._..,.........,_ e t ... ~·· ~ ~.,~ '.. :11\ \. ··~'."<::.::.·: '•/,ly•. v •• • • .:::.,.·-,: SO ORDERED this 4th day of April, 2013. •• "'IJ ·····'\l \.~ .... ----------. _ . . •. ,,tam '\:. __ .... ' ' .,,,,,, ........ 1 Since Lewies is not a party to this action, it is unnecessary for the ourt to issue a Rule 54(b) certificate. See In re Contempt of Reeves, 112 Idaho 574, 578, 733 P.2d 795, 799 (Ct. App. 1987) ("[W]e do not believe that the Supreme Court intended the certification provision to apply to nonparties, at least where all involvement with the suit has been severed.") Although this is not a contempt proceeding, the Court believes the circumstances are analogous to those set forth in Reeves. By not issuing a Rule 54(b) certificate, the Court avoids the potential delay Rule 54(b)(2) may impose. FINAL JUDGMENT ON RULE 11 SANCTIONS- Page 1 SCANNED Page 193 of 408•• .. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing FINAL JUDGMENT ON RULE 11 SANCTIONS AND RULE 54(b) CERTIFICATION was this 4th day of April, 2013, sent via US mail to the following individuals: Karl H. Lewies Ryan Dustin Fremont County Prosecuting Attorney's Office 22 W. 1stN~. ---~ St. Anthony, ID 83445 Blake G. Hall, Esq. Nelson Hall Parry Tucker P.O. Box 51630 Idaho Falls, ID 83405 Board of Commissioners for Fremont County c/o County Clerk 151 W. N. St. Anthony, ID 83445 Lynn Rossner, Esq. 109N. 2nd W. St. Anthony, ID 83445 DATED~4"'CZ?~pril,2013 Ad_ B~d&z:> FINAL JUDGMENT ON RULE 11 SANCTIONS- Page 2 ---- I Page 194 of 408Lynn Hossner Attorney at Law • Idaho State Bar No. 1074 1 09 North Second West St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Petitioners DISTR:CT SEVEN COURT County of Fremont State of Idaho Filed::.========:;--M ,\ y 2 ')(\1~) A - , __ '"' By: IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) ' Petitioners vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the State ofldaho, RONALD "SKIP" HURT, in his official capacity and LEROY MILLER in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 MOTION FOR DISMISSAL OF FINDING OF A PUBLIC ROAD Comes now Lynn Hossner, attorney for Petitioners, and moves this court order vacation of that certain order entered by Defendants in the above entitled matter which declared a road crossing Petitioners' property as a public road. This motion is based upon the file of the case, Petitioners' Brief which has been filed in the case and the Affidavit of Lynn Hossner filed simultaneously herewith. Petitioners seek their attorney fees and costs as prayed for in their original petition filed herein. Dated April29, 2013. Page 195 of 408Lynn Rossner Attorney at Law Idaho State Bar No. 1074 109 North Second West St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Petitioners lSTR:CT SEVEN COURT ty of Fremont State of Idaho Filed:~==========r--MAY - 2 By:-------::-----:---::::-;--;-Cern :::;! jrk IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) , ) Petitioners ) vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the State ofldaho, RONALD "SKIP" HURT, in his official capacity and LEROY MILLER in his official capacity, STATE OF IDAHO ) ) County of Fremont ) Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 AFFIDAVIT OF LYNN ROSSNER FOR DISMISSAL OF ORDER OF PUBLIC ROAD Comes now Lynn Rossner, attorney for Petitioners, being first duly sworn, deposes as follows: 1. I was given a copy of the court's Order Governing Proceedings, dated February 12, 2012 on January 14, 2013. The Order gave Petitioners 35 days to file their brief and Respondent 28 days to respond to Petitioners' brief after service of notice. Shortly thereafter, I was given a transcript of the proceedings before the Fremont County Commissioners in the case. 2. On February 12, 2013, I filed my Brief in Support of Petitioners' Motion to have the road designation set aside. I filed a copy with the court and sent a copy to chambers and to Blake Hall, Esq., attorney for the defendant. 3. On February 15, 2013, this court entered its Order Modifying Briefing Order. That Order provided that Petitioner must file its brief within 35 days of the date the transcript was Page 1 of 2 Page 196 of 408filed with the court. I had already filed my brief to the Order should not have affected my filing. 4. The February 15, 2013 Order Modifying Briefing Order further provided that Respondent's brief shall be filed within 28 days after service of Petitioner's brief. 5. I filed Petitioners' briefn February 12, 2013 so Respondent should have filed its response briefby March 13, 2013. 6. The Order Modifying Briefing filed February 15, may have extended the time for Respondent's brief by three days which would have required a Responsive briefby March 16, 2013. 7. If the full thirty-five days was to be computed from February 15, 2013, with an additional 28 days for Respondent's brief, Respondent should have filed its brief by April 19, 2013. DATED this 25th day of April2013. STATE OF IDAHO ) ) ss. County of Fremont ) Lynn Hossner, being first duly sworn, says that he is the attorney for petitioners in the above entitled matter, that he has read the foregoing and knows the contents thereof, and as to the matters and things therein alleged, affiant believes th~~ ,r Subscribed and sworn to before me this 29th day of April 20.~1··· . ·~\\\\\ltllrllfll.• ~ ! ~\\\ ,,,,/, ~ . . . # n.\~ PH~i.~ ~ . '- "/ ~ .n."'~ •••••••••• .(\ ~ ~~=-;:~~~~T-7=-=---:::;-.:__.=_ __ _ ~ ~~ .. . . ..,. ~ ' ~ J.;. ••• 0 't A.A..,."\ ~- Notary Public for Idaho ~ i + \ '§. Residing at: Ashton, Idaho - • •-1 = C . 11/ I E \ - 0 : .::= omm. Expues: 14 17 ~ \ .oua\.' / o ~ ~ .. t\·.. ..·· ~~ ~ u·;- "•••••••• <:)~ ~ ~ ~1"E 0~ \ ~~ "''''''11111111 ,,,,,,,, ... Page 2 of 2 Page 197 of 408Lynn Rossner Attorney at Law • Idaho State BarNo. 1074 109 North Second West St. Anthony, Idaho 83445 Telephone: (208) 624-3782 Attorney for Petitioners • DISTRICT SEVEN COL'f"H unty of Fremont State of Idaho 1/ed: -~~~ ABBIE MACE, CLERK By: -----;::::----[:t:}pt:~y C~L=:i!\ IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW and DAVID TUK NEDROW, ) , ) Petitioners ) vs BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the State ofldaho, RONALD "SKIP" HURT, in his official capacity and LEROY MILLER in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 CERTIFICATE OF SERVICE I hereby certify that on April 29th, 2013, I served a true and correct copy of Petitioners' Motion for Dismissal and Affidavit of Lynn Rossner to: Blake G. Hall, Esq. 490 Memorial Drive P.O. Box 51630 Idaho Falls, ID 83405-3001 Facsimile (208) 523-7254 Honorable Greg Moeller Madison County Courthouse Rexburg, Idaho 83440 Facsimile (208) 356-5425 METHOD OF SERVICE: []Mailed [ ] Hand Delivered [x] Facsimil~ SCANNED Page 198 of 408• Karl H. Lewies, Esq. Idaho State Bar No. 4380 KARL H. LEWIES, PLLC 343 E. 4th N., Suite #125 Rexburg, Idaho 83440 T: (208) 3 72-1700 F: (208) 372-1701 khlewies@gmail.com Real Party in Interest- Appellant • DISTRICT SEVEN COURT County of Fremont State ot Idaho Flied:..::============;--MAY - 2 2013] "A851~cE, -cL:::t~K By: - 'I k C:-f:":y '-' er IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY,EMMAATCHLEY,LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state ofldaho, RONALD "SKIP" HURT, in his official capacity, and LEROY MILLER, in his official capacity, Respondents. E.C. GWALTNEY, III and LANA K. VARNEY, Petitioners, vs. NOTICE OF APPEAL - 1 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-12-580 Case No. CV-12-581 NOTICE OF APPEAL SCANNED Page 199 of 408) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a political ) subdivision of the state ofldaho, RONALD "SKIP" ) HURT, in his official capacity, and LEROY ) MILLER, in his official capacity, ) ) Respondents. ) TO: THE ABOVE NAMED RESPONDENTS, BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY ("County"), RONALD "SKIP" HURT, AND LEROY MILLER, AND THE PARTY'S ATTORNEY, BLAKE G. HALL, ESQ., AND THE CLERK OF THE ABOVE ENTITLED COURT. NOTICE IS HEREBY GIVEN THAT: 1. The above-named appellant, Karl H. Lewies, Esq., appeals the above-named respondents to the Idaho Supreme Court from the Final Judgment on Rule 11 Sanctions, entered in the above-entitled action on the day of April4, 2013, District Judge Gregory Moeller presiding. 2. That the party has a right to appeal to the Idaho Supreme Court, and the judgment described in paragraph 1, above, is an appealable order under and pursuant to Rule ll(a)(l), Idaho Appellate Rules. 3. Preliminary Statement of Issues. a. Whether the petition for judicial review filed by appellant in case number CV -12-580 violated the signature certification requirements ofl.R.C.P. 11(a)(1)? b. Whether the petition for judicial review filed by appellant in case number CV -12-581 violated the signature certification requirements of I.R.C.P. 11 (a)(l )? c. Whether the court erred by first awarding attorney's fees to the County based on the NOTICE OF APPEAL - 2 Page 200 of 408prevailing party standard, and subsequently without notice to the parties or opportunity to object, changing its award of attorney fees into I.R.C.P. sanctions imposed on appellant, sua sponte? d. Whether the Court abused its discretion by imposing I.R.C.P. ll(a)(l) sanctions against appellant based on the following extraneous conduct, rather than on the signing of the petitions for judicial review: 1. Because appellant filed petitions for judicial review against a "known future client;" 11. Because appellant did not realize that the "Fremont County voters were entitled to expect that the person they had just elected as County prosecutor (i.e. appellant) would not be filing new legal actions against the County;" 111. Because, by filing the petitions, appellant "initiated a chain of events that any reasonable attorney should have anticipated would create mistrust and animosity from everyone involved; " iv. Because of appellant's "timing" relative to filing the petitions; v. Because appellant "delayed in withdrawing as counsel" for petitioners; vi. Because appellant "delayed in withdrawing as counsel" for respondents; v11. Because appellant "failed to understand that his actions would almost immediately deprive petitioners of legal counsel;" viii. Because "appellant should have anticipated that his actions would deprive his fUture clients, the County and the board of commissioners, of representation;" and NOTICE OF APPEAL - 3 Page 201 of 408ix. Because the court found appellant's actions "unseemly?" e. Whether the Court erred in finding that the appellant "had not withdrawn as counsel for the County, " insofar as appellant at no time represented the County in either CV-12-580 or CV-12-581? f. Whether the court erred in finding that appellant's actions "delayed adjudication of the petitions for judicial review? " g. Whether the Court erred by "deeming it appropriate " for the County to have retained private legal counsel, Blake G. Hall, Esq., to represent it in case numbers CV-12-580 and CV-12-581, even though the legal question whether the County's hiring of private counsel in violation of the Idaho Constitution's "necessity requirement" had been voluntarily withdrawn by motion of the Office of the Prosecuting Attorney, and therefore, was not a question presented to the court for its decision? h. Whether the Court erred in finding that appellant was unable to "complete " his representation of petitioners? 1. Whether Judge Gregory Moeller demonstrated bias against appellant by engaging in the following actions: 1. By initiating an ex parte communication with appellant immediately following the January 22, 2013 court hearing in this matter by inviting appellant into chambers and proceeding to warn him, "You have to decide what hill you want to die on." Then, further warning appellant, "This conversation never happened; " NOTICE OF APPEAL - 4 Page 202 of 408ii. After issuing warnings to appellant, as described above, then changing his ruling awarding attorney's fees to the County based on the prevailing party standard into I.R.C.P. 11(a)(1) sanctions against appellant, sua sponte, without notice or opportunity to object; iii. By disregarding appellant's arguments and allegations of unethical conduct and improper purposes engaged in by the County's counsel, Blake G. Hall, Esq.; and iv. By issuing a publically available Memorandum Decision Regarding Rule 11 Sanctions against appellant thereby causing damage to appellant's professional reputation? 4. No order has been entered sealing all or any portion of the record. 5. Requested transcripts. a. A reporter's transcript is requested. b. The appellant requests the preparation of the following portions of the reporter's transcript: in [ ]hard copy, [ ] electronic format, [X] both: 1. The entire January 22, 2013 court hearing (motion to disqualify counsel and motion to withdraw); n. The entire February 26, 2013, court hearing (objection to attorney's fees); 6. The appellant requests the following documents to be included in the clerk's record in addition to those automatically included under Rule 28, Idaho Appellate Rules: a. Regarding Case No. CV-12-580: i. Order Governing Procedure on Review, filed in chambers 12-3-2012; NOTICE OF APPEAL - 5 Page 203 of 408ii. Stipulation for Substitution of Counsel, filed 1-14-2013; iii. Notice of Appearance Lynn Rossner, Esq., filed 1-14-2013; tv. Answer to Partial Motion to Dismiss; filed 1-22-2013; v. Memorandum In Support of Petitioners' Petition for Review, filed 2-12-2013; v1. Motion of Withdrawal of Motion to Represent Fremont County, filed 2-19-2013; and vii. Notice ofLodging, filed 3-13-2013. b. Regarding Case No. CV-12-581: i. Order Governing Procedure on Review, filed in chambers 12-3-2012; ii. Motion of Withdrawal of Motion to Represent Fremont County, filed 2-19-2013; and iii. Notice ofLodging, filed 3-13-2013. 7. Civil Cases Only. The appellant requests the following documents, charts, or pictures offered or admitted as exhibits to be copied and sent to the Supreme Court: a. Exhibits A and B, attached to the Memorandum In Support of Petitioners' Petition for Review, filed 2-12-2013; b. Fremont County Official Road Map (2012); and c. Letter from Blake G. Hall, Fremont County Chief Civil Deputy Prosecuting Attorney, to Fremont County Board of County Commissioners, dated November 20, 2012, and offered as an exhibit during the court hearing held on 2-26-2013. NOTICE OF APPEAL - 6 Page 204 of 4088. I certify: a. That a copy of this notice of appeal has been served on each reporter of whom a transcript has been requested as named below at the addresses set out below: 1. Name and address: David Marlow, P.O. Box 1671, Idaho Falls, ID 83403; telephone (208) 317-3400. b. That the clerk of the district court has been advised that appellant and the reporter, David Marlow, have agreed that the fee for preparation of the reporter's transcript will be paid once the transcripts are prepared. c. That the estimated fee for preparation of the clerk's record has been paid. d. That the appellate filing fee has been paid. e. That service has been made upon all parties required to be served under Rule 20, I.A.R. DATED this 2nd day of May, 2013. Karl H. Lewies, Esq. Real Party in Interest - Appellant NOTICE OF APPEAL - 7 Page 205 of 408CERTIFICATE OF SERVICE I hereby certify that I am a duly licensed attorney in the State of Idaho, with my office in Rexburg, Idaho; that on the 2nd day of May, 2013, I caused a true and correct copy of the foregoing NOTICE OF APPEAL to be served upon the following persons at the addresses below their names either by depositing said document in the U.S. Mail with correct postage thereon, or by hand delivering, or by transmitting by facsimile, as set forth below: Blake G. Hall, Esq. NELSON HALL PARRY TUCKER P.O. Box 51630 Idaho Falls, ID 83405-1630 Lynn Rossner, Esq. ATTORNEY ATLAW 109N. 2ND W. St. Anthony, ID 83445 Charles A. Homer, Esq. HOLDEN KIDWELL HAHN & CRAPO P.O. Box 50130 Idaho Falls, ID 83405 Gregory Moeller, District Judge FREMONT COUNTY COURT HOUSE 151 W. 1stN. St. Anthony, ID 83445 DATED this 2nd day of May, 2013. NOTICE OF APPEAL - 8 [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [X] U.S. Mail [ ] Hand Delivery [ ] Facsimile [ ] U.S. Mail [X] Hand Delivery [ ] Facsimile Karl H. Lewies, Esq. Page 206 of 408Blake G. Hall, Esq. Nathan R. Starnes, Esq. • NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents r-F'T <::E' 1r;N COURT County ~f'F~e;;;o~tstate ot Idaho Filed:~======!-MAY - 8 2013 AS'i:3iE'iv1ACE, CLERK 7:>n De 21e~k By: IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. I !Case No. CV-12-580 ! ! i RESPONDENTS' OPPOSITION TO ! MOTION FOR DISMISSAL ! ! i i ! ! i ! ! ! COME NOW Respondents, Board of County Commissioners for Fremont County, Idaho, Ronald "Skip" Hurt and Leroy Miller, by and through counsel of record, and hereby submit this Opposition to Motion for Dismissal as follows: SCANNED Page 1 Page 207 of 408INTRODUCTION Before the Court is Petitioner's Motion to Dismiss based on alleged non-compliance with the modified filing dates provided by the Court in its Notice of Lodging. On March 13, 2013, the Court issued a Notice of Lodging, which identified the relevant dates for responsive briefing in this matter. Specifically, the Court's relevant dates were based on a relevant date of April 10, 2013, which would have been the date wherein the transcript and record would have been deemed settled with the Court. From that date, the briefing schedule was calculated. It was Respondents' belief that the Petitioner would be filing a modified or augmented brief with the Court once the record had been settled. The date by which the Petitioner's brief would have been due is May 15, 2013. The Respondents' brief would have been due 28 days following service of the Petitioner's brief. In this case, given the belief that Petitioners' would file a supplemental brief or statement notifying the parties that it's brief had been filed, Respondent's believed that the relevant response date would be 28 days after service or June 12, 2013 at the latest. Nevertheless, filed concurrently with the instant opposition is Respondents' brief addressing the substantive issues raised before the Court. It is well established that the Court should decide a matter on the merits and not on a technicality. While Respondents do not believe they have violated the dates identified in the Notice of Lodging, considering the Respondents' Brief is filed concurrently herewith, there is no prejudice to the Petitioners and the Court should consider and decide this matter on the merits. ARGUMENT It is well established under Idaho law that whenever possible, a ruling on the merits of an appeal should be rendered. Bunn v. Bunn, 99 Idaho 710, 587 P.2d 1245 (1978). "[P]rocedural Page2 Page 208 of 408regulations should not be so applied as to defeat their primary purpose, that is, the disposition of causes upon their substantial merits without delay or prejudice." Stoner v. Turner, 73 Idaho 117, 121, 247 P.2d 469, 471 (1952). Idaho's rules of civil procedure are to "be liberally construed to secure the just, speedy and inexpensive determination of every action and proceeding." I.R.C.P. 1(a). With respect to appeals to the district court, Rule 83(x) provides "these rules shall be construed to provide a just, speedy and inexpensive determination of all appeals." In Bunn v. Bunn, supra, the Idaho Supreme Court reviewed a district court's dismissal of an appeal from the magistrate division. The dismissal had been entered because of lack of diligent prosecution when the appellant failed to timely file a transcript of the magistrate's proceedings. Determining that the district court abused its discretion, the Court stated: A "determination" of an action within the meaning of [I.R.C.P.] 1 is meant to be a determination of the controversy on the merits-not a termination on a procedural technicality which serves litigants not at all. A determination entails a finding of the facts and an application of the law in order to resolve the legal rights of the litigants who hope to resolve their differences in the courts. The "liberal construction" of the rules required by Rule 1, while it cannot alter compliance which is mandatory and jurisdictional, will ordinarily preclude dismissal of an appeal for that which is but technical noncompliance. This will be especially so where no prejudice is shown by any delay which may have been occasioned. Rule 83(s), which governs appeals from magistrate court to district court, does not require dismissal for failure of an appellant to punctually take any of the required steps; specifically dismissal is but a sanction, albeit the ultimate one, for failing to diligently process an appeal. Judicial discretion, the exercise of which may result in an appeal's dismissal, must be a sound judicial discretion. Sound judicial discretion properly exercised will reflect the judicial policy of this State developed over many years by case law, and lying within the spirit of liberality mandated by Rule 1. Id at 712, 587 P.2d at 1247 (emphasis in original). The Bunn court concluded that dismissal for noncompliance with the rules of appellate procedure is discretionary, but "[s]ound judicial discretion properly exercised will reflect the judicial policy of this State .... " Jd Page 3 Page 209 of 408In the instant matter, Respondents attempted to calendar their responsive briefing deadlines based on the Court's Notice of Lodging. Specifically, the Notice stated that the briefing schedule would commence fourteen days after the settlement of the record and transcript which would have been April 10, 2013-because no objections to the content of the transcript or record. From April 10, 2013, the Petitioners' brief was due 35 days following notice that the transcript and record was lodged with the Court- or May 15, 2013. Respondents were never informed that no supplemental briefing would be filed nor was a notice ever filed with the Court that the brief previously filed with the Court would not be altered. Respondents were of the belief that either a supplemented brief or a notice that the original brief was being adopted would be provided to Respondents. Respondents could not have known that no supplementation would be made to Petitioners brief. Without a formal notification that Petitioner's brief was deemed filed, Respondents would not have commenced calculating their response date. Based on the language of the Notice of Lodging, "Respondents' brief shall be filed within 28 days after service of Petitioner's brief .... " (Notice of Lodging, p. 2). Without Petitioner's brief being served on Respondents' within the time period prescribed by the Notice of Lodging or a notice stating that the previously filed brief would not be supplemented, Respondents had no way of knowing that no supplementation would be made. The Notice of Lodging would suggest that supplementation was permissible because the record had not been settled. It was not until the instant motion was filed that Respondents understood that no supplementation to the Petitioners' brief would be made. In an effort to comply with the briefing deadlines and avoid further delay, Respondents' filed concurrently with the instant opposition their Respondents' Brief. Respondents' brief addresses the substantive issues raised by the appeal and allows the Page4 Page 210 of 408Court to made a determination based on factual and substantive issues and not on a mere technicality. See Bunn v. Bunn, supra. In this case, there is no prejudice on Petitioner allowing Respondents to file their brief. In fact, dismissal would be a harsh sanction. In this case, where Respondents believed that a filing by Petitioner was required based on the plain language of the Notice of Lodging, there has been no violation of the briefing schedule and the Court should accept the filed Respondents' Brief and order that Petitioner file a reply brief within 21 days pursuant to the Notice of Lodging. CONCLUSION Based on the foregoing, Respondents respectfully request that the Court deny Petitioner's motion to dismiss and allow the instant appeal to proceed with the filing of a reply brief to the Respondents' Brief within 21 days. Consistent with Idaho law, the Court should allow the instant matter to be decided on the merits of the case and not on a technicality. Thus, the Court should deny Petitioners' motion to dismiss. DATED this _I_ day ofMay, 2013. Page 5 Page 211 of 408"' 1 t -CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this _____:z_ day of May, 2013, by the method indicated below: Lynn Rossner 109 North Second West St. Anthony, Idaho 83445 JG] Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail L:\BGH\7525 -Fremont County files\7525.18 Flying A Ranch\Pieadings\Defendant's\Dismiss (Opposition).docx Page 6 Page 212 of 408Blake G. Hall, Esq. Nathan R. Starnes, Esq. • NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents c:srF.:::-:,-;- SE'·'EN COURT C'"' oi Fremont State of Idaho Fllacl:..=:======ii-IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 RESPONDENTS' OPPOSITION TO PETITION FOR REVIEW COME NOW Respondents, Board of County Commissioners for Fremont County, Idaho, Ronald "Skip" Hurt and Leroy Miller, by and through counsel of record, and hereby submit this Opposition to Petition for Review as follows: RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 1 Page 213 of 408INTRODUCTION Before the Court is a Petition for Judicial Review of the Fremont County Commissioners adoption of Ordinance No. 2013.01, which adopted the Official Road Map of Fremont County, Idaho. The Ordinance is statutorily required and is designed to designate roads within the County as public roads. The Commissioner's review of the Ordinance No. 2013.01 concerned all of the roads on the map and their determination was not limited to a specific road. The instant Petition for Review concerns a public road that commences at 1425 North 3125 East, in Fremont County and travels one quarter of a mile north over the property of Petitioners, George Ty Nedrow and David Tuk Nedrow (referred to collectively as "Nedrows"). The same road also proceeds north a quarter of a mile over property belonging to Petitioners Flying "A" Ranch, Inc., Clen Atchley, Emma Atchley, Laura Picard and Clay Picard (referred to collectively as "Flying "A" Ranch"). Ultimately the road reaches U.S. Forest Service land to the south which is blocked by a gate. Consistent with Idaho law, the Fremont County Commissioners conducted public hearings pursuant to authority to ensure the adopted map contained public roads. As required, the Commissioners conducted a hearing pursuant to notice and ultimately determined that the subject road was a public road. The findings of the Commissioners were consistent with the finding that the road was public and their decision was neither arbitrary, capricious, or an abuse of discretion. As such, the Court should uphold the decision of the Commissioners and find that their determination that the northbound road in dispute is a public R.S. 2477 road and that such determination was supported by substantial and competent evidence. RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 2 Page 214 of 408ARGUMENT A. The Board of County Commissioners Complied With Idaho Code § 40-202(1 ). Pursuant to Idaho Code Section 40-202, Fremont County has an obligation to publish a map showing the general location of all highways and rights-of-ways within the County. Prior to 2013, Fremont County had not adopted an official map designating highways and public rights-of-way. A "highway" is defined as [R]oads, streets, alleys and bridges laid out or established for the public or dedicated or abandoned to the public. Highways shall include necessary culverts, sluices, drains, ditches, waterways, embankments, retaining walls, bridges, tunnels, grade separation structures, roadside improvements, adjacent lands or interests lawfully acquired, pedestrian facilities, and any other structures, works or fixtures incidental to the preservation or improvement of the highways. Roads laid out and recorded as highways, by order of a board of commissioners, and all roads used as such for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public, or located and recorded by order of a board of commissioners, are highways. I.C. 40-109(5). The definition of a highway is broad. When initially adopting the official highway map, the County Commissions are required to "cause a map to be prepared showing the general location of each highway and public right-of-way in their jurisdiction ... " I.C. § 40-202(1)(a). Once the map has been prepared, the Commissioners "shall cause notice to be given of intention to adopt the map as the official map of that system, and shall specify the time and place at which all interested persons may be heard." I.C. § 40-202(1)(a). Upon appropriate public notice, the Commissioners are required to "adopt the map, with any changes or revisions considered by them to be advisable in the public interest, as the official map of the respective highway system." I.C. ~ 40-202(1)(b) (emphasis added). RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 3 Page 215 of 408In the instant matter, the official road map at issue does not specifically address a single road but was the initial adoption of the official map. Because the initial map was being prepared, the requirements of Idaho Code § 40-202(1) apply. In this case, there is no dispute that a map was prepared showing the general location of each highway and public right-of-way. Notice of a public information meeting was disseminated to the public requesting their review of the map and public comment. (R., p. 1 ). Three meeting dates were provided to the public to appear and comment on the proposed map. (R., p. 1 ). Various individuals provided comments and concerns about the map, which was considered by the Commissioners. (R., pp. 2-16). On August 20, 2012, the Fremont County Commission held a meeting allowing the public to comment on the Road Highway map. (R., p. 17). There were some comments on the public nature of some roads and changes to the map were made pursuant to a full Commission vote. (R., p. 18). The official minutes also reflect that a public hearing on the Official County Highway Map would be held on September 27, 2012. (R., p. 18). Notice of the public hearing was also provided. (R., pp. 21-22). Multiple citizens appeared at the September 27, 2012 hearing and provided comment to the Board of Commissioners. Approximately 15 citizens provided commentary at the hearing. (R., pp. 26-29). Written commentary was also received and read into the official record. (R., pp. 30-51, 53 (pp. 46-51)). In an October 15, 2012, County Commissioners work meeting, the public comments were discussed and a determination was made regarding the status of the roads. During that meeting, the Commissioners adopted some changes via a unanimous vote. (R., p. 58). Following public hearing, the Commissioners voted to adopt Fremont County Ordinance 2013-01, the Official Road Map for Fremont County, Idaho. Commissioner Miller and Hurt voted "yes" for the Ordinance while Commissioner Stoddard voted "no." (R., p. 64). Ordinance 2013-01 RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 4 Page 216 of 408specifically stated that an official map of the County is required, that a map was prepared and that the "Board of County Commissioners deems it to be in the best interest of Fremont County, Idaho to adopt an Official Road Map for Fremont County, Idaho. Pursuant to Idaho Code § 40-202, the County complied with each of the express requirements to adopt a formal road map. Specifically, a map was prepared, public notice was provided, public commentary was heard and considered and ultimately the Commissioners adopted the official map that was in the best interest of the county. All of the requirements for adopting the official road map where met. In this matter, the petition is not appropriate because the challenge is specific to a single road and not the entire Official Road Map of Fremont County. The County Commissioners action did not involve a specific road but rather was the initial adoption of the road map. And as addressed above, they complied with the express statutory requirements of Idaho Code§ 40-202. Thus, the Court should dismiss the Petition. B. The Board Of County Commissioners' Findings Of Fact And Conclusions Of Law Satisfied The Requirements Of Idaho Code § 40-208(7). Despite clear compliance with the requirements of Idaho Code § 40-202, the Commissioners' findings, inferences, conclusions or decisions are not: (a) In violation of constitutional or statutory provisions; (b) In excess of the statutory authority of the commissioners; (c) Made upon unlawful procedure; (d) Affected by other error of law; (e) Clearly erroneous in view of the reliable, probative and substantial information on the whole record; or (f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. I.C. § 40-208(7). Petitioner cannot identify any findings, inferences, conclusions, or decisions that violate this standard. RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 5 Page 217 of 408When adopting the official map of Fremont County, the Commissioners issued Finding of Facts and Conclusions of Law Re: Official Road Map of Fremont County Idaho. (R., pp. 72-75). The Commissioners address the statutory requirement for the map and the facts that support their conclusions. Specifically, the Commissioners state that the Fremont County Public Works Department identified the road and right-of-ways that were included on a County road map and researched lTD inventory maps, Forest Service and BLM road maps. (R., p. 72, ~ 5). The Roads that were deemed to be Fremont County roads satisfied the following criteria: a. The roads are routinely maintained by the Fremont County Road & Bridge Department. b. Documentation showed the roads have been maintained in the past by the Fremont County Road & Bridge Department. c. Current or past employees of the Fremont County Road & Bridge Department testified that they had performed authorized maintenance on the road. d. The roads were identified on recorded plats of subdivision as having been dedicated to the public. e. The roads were shown on government maps (such as Forest Service, BLM, State of Idaho) as being public roads. f. The roads had been asserted under Federal Law R.S.-2477 and Idaho Code 40-204 and 40-107 or are the sole or essential connection to roads asserted as R.S.-2477 roads. (R., pp. 72-73, ~ 6 (emphasis added)). The Commissioners adopted these facts and applied them when making their Conclusions of Law. It is important to recognize that the Commissioners did address Petitioners' comments at the hearing during an October 15, 2012 work meeting. (SeeR., p. 59, CD recording: Discussion commencing at 5:09 through 9:53). The Commissioners did consider the Nedrow's comments and agreed that the East-West bound road should be closed. There is no challenge to the County's determination on this issue. Rather, the specific challenge is that the northbound road should be closed. When the Commissioners specifically reviewed this stretch of road, it was determined that the road was an R.S. 2477 road. In specifically considering the road, the RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 6 Page 218 of 408Commissioners reviewed an old Shell Oil map from approximately 1957 that identified the road as the access to Federal BLM land. As an R.S. 2477 road, the Commissioners are prohibited from closing the road. In their Conclusions of Law, when addressing the roads that were identified as R. S. 24 77 roads, the Commissions concluded: Those roads identified in Exhibit "B" as being R.S.-2477 roads are determined by the Fremont County Board of County Commissioners as having been asserted under Federal Law R.S. 2477 and Idaho Code 40-204 and 40-107. The same are identified in official roads in the Fremont County Public Works office. The foregoing is supported by substantial and competent evidence submitted at the public hearing and is found to be in the public interest. (R., p. 74, ~ 8). Ultimately, the Commissioners decision of maintaining the disputed road as open is supported by substantial and competent evidence. The Commissioners specifically declared that maintaining the road as open was in the public interest. Moreover, their decision of maintaining the northbound road as open was not arbitrary, capricious, or an abuse of discretion because there was a clear and articulated basis for maintaining the road as open. Where this Court is not to substitute its judgment for that of the Board on questions of fact, the Court should uphold the Board of County Commissioners' decision to declare the road in question as public R.S. 2477 road. See Homestead Farms v. Bd. ofComm'rs ofTeton County, 141 Idaho 855, 858, 119 p .3d 630, 633 (2005). CONCLUSION Based on the foregoing, Respondents' respectfully request that the Court uphold its decision to maintain the Old Yellowstone Mail Route and Snow Creek road as a public road. Respondents specifically request that the Court find that the Commissioners complied with the express requirements of Idaho Code § 40-202(1) in adopting an initial official map and that the roads included on the Official Road Map of Fremont County Idaho are public roads and that RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 7 Page 219 of 408.. , ' .. there is substantial and competent evidence to support the inclusion of the roads, including the road in question, as public roads in Fremont County, Idaho. DATED this L day of May, 2013. CERTIFICATE OF SERVICE l)lereby certify that I served a true copy of the foregoing document upon the following this _L_ day of May, 2013, by the method indicated below: Lynn Hossner 109 North Second West St. Anthony, Idaho 83445 ~Mailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail F:\ 7525.18 Flying A Ranch\Pieadings\Defendant's\Repondent Brief.docx RESPONDENTS' OPPOSITION TO RETITION FOR REVIEW- Page 8 Page 220 of 408Blake G. Hall, Esq. Nathan R. Starnes, Esq. • NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P. 0. Box 51630 Idaho Falls, Idaho 83405-1630 Telephone: (208) 522-3001 Facsimile: (208) 523-7254 I.S.B. Nos. 2434 & 7484 Attorney for Respondents • DISTRICTSEVEN CCUP.T County of Fremont State of Idaho Filed:;.========]-l i MAY - 8 2013 ! I - _____ j By: ABSIE MACE, C~::~ J IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. STATE OF IDAHO ) : ss. County of Bonneville ) Case No. CV-12-580 AFFIDAVIT OF BLAKE G. HALL Blake G. Hall, being first duly sworn, deposes and states as follows: 1. I am one of the attorneys of record in the above-captioned matter for Respondents. I am over the age of eighteen and am competent to testify. This affidavit is based upon my personal knowledge unless otherwise indicated. SCANNED Page 1 Page 221 of 4082. That on or about March 13, 2013, Respondents received the Court's Notice of Lodging. That the relevant response dates were calendared. 3. Based on the Court's order, where no objections to the content of the transcript or record was made, that the record would be deemed settled on April 10, 2013. The briefing schedule was provided from that date. 4. Based on the Notice of Lodging, it was Respondents understanding that Petitioner's brief was to be filed within 35 days of the date wherein the transcript and record were filed with the Court- or May 15, 2013. 5. Respondents believed that Petitioner would either file a supplemental brief with the Court or would file a notice stating that the previously filed "Memorandum in Support of Petitioners' Petition for Review," which was filed well in advance of the Notice of Lodging, would not be supplemented. Respondents had no reason to believe that Petitioner would not supplement their brief based on the new filing dates. 6. It was not until April 30, 2013 that Respondents received any notification that Petitioners had no intent to supplement their brief through the filing of the Motion to Dismiss. Based on that notice, Respondents brief would be due 28 days later, or May 28, 2013. 7. To avoid further delay in the resolution of this matter, Respondents have filed the Respondents' Brief concurrently with the instant Opposition to Motion to Dismiss. \ \ \\ \ \ \ \ Page2 FURTHER YOUR AFFIANT SA YETH NAUGHT. Page 222 of 408• • ~H~L# SUBSCRIBED AND SWORN TO, before me the undersigned, a Notary Public in and for said State, this_ day of May, 2013. No~ Residing at: .J Ah ~, ziJ a~I06 My commission expires: _...t.,__/=2.~6/l._l_...lf ____ _ 7 7 CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this~ day of May, 2013, by the method indicated below: Lynn Rossner 109 North Second West St. Anthony, Idaho 83445 [~ailing [ ] Hand Delivery [ ] Fax [ ] Overnight Mail L:\BGH\7525- Fremont County files\7525.18 Flying A Ranch\Pleadings\Defendant's\Dismiss (Hall Aft).docx Page 3 Page 223 of 408Beck From: Sent: To: Subject: Attachments: supremecourtdocuments@idcourts.net ~·------DiSTF\iCT s~v~~i:--:::·:-. County of Fremont Sta.te ci l:;ailo Filed: ~=========::=Ji __ Thursday, May 09, 2013 01:19 PM ABBIE MACE, CLERK khlewies@gmail.com; DMARLOW337@AOL.C MI;tP.bie Mace· Beck Harri f bghall@nhptlaw.net; gmoeller@co.madison.id. Deputy Clerk 40987 LEWIES v. BD OF CNTY COMM. FOR FREMONT CNTY (CV2012-580,2012-581) 40987 CC.pdf; 40987 NOA.pdf FILED NOTICE OF APPEAL. CLERK'S RECORD AND REPORTER'S TRANSCRIPT DUE 7-15-13 **01-22-13 HEARING; 2-26-13 HEARING**. SEE ATTACHMENT(S). Please Note: All notices from the Supreme Court will be served via email to the district court clerk, the court reporter, the district judge, and counsel of record. The Court's email notices to counsel will be sent to the current email address of record according to the Idaho State Bar. If you would like others to receive additional electronic notices of the proceedings in this appeal please call the Supreme Court Clerk's Office at 334-2210. Prose without a valid email address will be served notice via U.S. Mail. Please review the Clerk's Certificate for any errors, if Clerk's Certificate is attached. 1 Page 224 of 408: , f'\-:':t ~:'t r i . ~ .W lHE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT ZuiJ HAy -l A B~; ~HE STATE OF IDAHO, WAND FOR FREMONT COUNTY Ft .. "A" RANOt, I:NC., an lclahO CWft~ QiUltt AJ~UY, EMMA ATO!li.EY,lAURA P4CWD, CLAY PICKARD, GEORGE TV NEDROW, and DAVID TUK NEDROW, Petitioners, and KARl H. LEWIES, Real Party in Interest-Appellant, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, a political subdivision of the State of Idaho, RONALD "SKIP" HURT, in his official capacity, and LEROY MILLER, in his official capacity, Respondents. E.C. GWALTNEY, Ill and LANA K. VARNEY, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, a political subdivision of the State of ldatlo, RONALD "SKI PH HURT, in his official capacity, and L.iaoY MJ,U.ER, in his official capacity, Case No. CV-2012..0000580 CLERK'S CERTIFICATE OF APPEAL Suoreme Court No f/IJtliJ . APPEAL FROM THE SEVENTH JUDICIAL DISTRICT, FREMONT COUNTY. HONORABLE JUDGE GREGORY W. MOELLER PRESIDING CASE NUMBER FROM COURT: ORDER OR JUDGMENT APPEALED FROM: ATTORNEY FOR APPELLANT: ATTORNEY FOR RESPONDENT: APPEALED BY: APPEALED AGAINST: NOTICE OF APPEAL FILED: CV-2012-0000580 Final Judgment on Rule 11 Sanctions Lynn Hossner, Charles A. Homer Blake Hall Karl H. Lewies, Real Party in Interest Board of County Commissioners, eta I May 2, 2013 Page 225 of 408AMENDED NOTICE OF APPEAL FILED: N/A NOTICE OF CROSS-APPEAl FilED: N/A AMENDED NOTICE OF CROSS-APPEAL FILED: N/A APPELLATE FEE PAID: YES RESPONDENT OR CROss-RESPONDENT'S REQUEST FOR ADDITIONAL RECORD FILED: N/A TRANSCRIPT FILED: WAS DISTRICT COURT REPORTER'S TRANSCRIPT REQUESTED? YES DISTRICT COURT REPORTER: DAVID MARLOW Dated this 3rd day of May, 2013 ABBIE MACE Clerk of the District Court Page 226 of 408r DISTRICT SEVEN COURT County of Fremont State of Idaho Filed:~=====::;--Karl H. Lewies, Esq. Idaho State Bar No. 4380 KARL H. LEWIES, PLLC 343 E. 41h N., Suite #125 Rexburg, Idaho 83440 ZOIJ flAY -1 A 8: 3q T: (208) 372-1700 F: (208) 372-1701 khlewies@gmail.com Real Party in Interest- Appellant MAY - 2 2013 ABSH(~:,ce. CLERK Br.--------~~--~~~~ Deputy Clerk IN THE DISTRICT COURT OF THE SEVENrH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, ) CLEN ATCHLEY, EMMA ATCHLEY, LAURA ) PICKARD, CLAY PICKARD, GEORGE TY ) NEDROW, and DAVID TUK NEDROW, ) Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of RONALD~~~KJP" :MILLER, in his official capacity, Respondents. E.C. GWAL1NEY, ill and LANA K. VARNEY, Petitioners, vs. NOTICE OF APPEAL- 1 ) ) ) ) ) ) ) Case No. CV-12-580 Case No. CV-12-581 Suoreme C.oun No!:iOf/$7 . NOTICE OF APPEAL .......... l', ¥..J''"" Page 227 of 408( ( ' ) BOARD OF COUNTY COMMISSIONERS ) FOR FREMONT COUNTY, IDAHO, a political ) subdivision of the state ofldaho, RONALD "SKIP" ) HURT, in his official capacity, and LEROY ) MILLER, in his official capacity, ) ) R~n&m~. > TO: TilE ABOVE NAMED RESPONDENTS, BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY ("County''), RONALD ''SKIP'' HURT, AND LEROY MILLER, AND THE PARTY'S,,AffORNE.:Y'i' ~~:-¥'HALL, ESQ.;-AND'fHE--' CLERK OF TIIE ABOVE ENTITLED COURT. NOTICE IS HEREBY GIVEN TIIAT: l. The above-named appellant, Karl H. Lewies, Esq., appeals the above-named ~~ the Idaho Supreme Court from the Final Judgment on Rule II Sanctions, entered in the above-entitled action on the day of April4, 2013, District Judge Gregory Moeller presiding. 2. That the party has a right to appeal to the Idaho Supreme Court, and the judgment described in paragraph l, above, is an appealable order under and pursuant to Rule ll(a)(l), Idaho Appellate Rules. 3. Preliminary Statement of Issues. a. Whether the petition for judicial review filed by appellant in case number CV-12-580 violated the signature certification requirements ofi.R.C.P. ll(a)(1)? b. Whether the petition for judicial review filed by appellant in case number CV-12-581violated the signature certification requirements ofi.R.C.P. ll(a)(l)? c. Whether the court erred by first awarding attorney's fees to the C01mty based on the NOTICE OF APPEAL- 2 Page 228 of 408prevailing party standard, and subsequently without notice to the parties or opportunity to object, changing its award of attorney fees into I.RC.P. sanctions imposed on appellant, sua sponte? d. Whether the Court abused its discretion by imposing I.R.C.P. ll(a)(l) sanctions against appellant based on the following extraneous conduct, rather than on the signing of the petitions for judicial review: i. Because appellant filed petitions for judicial review against a "known future client;" ii. Because appellant ~.-:~ Time: __ ~==~~~~--7~r----By: IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLARY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, v. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-2012-580 AMENDED DECISION ON REVIEW I. INTRODUCTION This matter comes before the District Court on a petition for judicial review filed by Flying "A" Ranch, Inc., Clen Atchley, Emma Atchley, Clay Pickard, Laura Pickard, George Ty Nedrow, and David Tuk Nedrow ("Petitioners"). Petitioners seek judicial review of the Fremont County Board of Commissioners' ("the County" or "the Board") decision to adopt Fremont County Ordinance No. 2013-01, which created an official road map of Fremont County ("the Official Road Map"). This map designated a road that crosses Petitioners' lands ("the Old Yellowstone Mail Route Road and Snow Creek Road" or "the North Road") as a public right-of-way. Petitioners allege that the Board failed to make any factual determinations regarding whether the North Road was public or private before designating it as public on the Official Road Map. Accordingly, Petitioners contend that the Board engaged in unlawful procedure, acted arbitrarily and capriciously, and/or abused its discretion. Petitioners also seek injunctive AMENDED DECISION ON REVIEW- 1 Page 373 of 408relief from any public or private use and/or maintenance of the North Road that may result through reliance upon the Official Road Map. Finally, Petitioners seek attorney fees and costs. Following briefing, orai argument took place on August 27, 2013, after which the Court took the matter under advisement. II. FACTUALBACKGROUND In preparing to adopt an official county road map pursuant to Idaho Code§ 40-202 (20 11 ), 1 the Fremont County Board of Commissioners ("the Board") gave public notice that "[a]fter months of research [it was] close to establishing the official County road map" and solicited public comments.2 The Board received written comments and held three "public information hearings" in July of2012 to further identify public roadways.3 All then-identified roads were presented on maps available at the public hearings and on the Fremont County website.4 "After the public information hearings, Fremont County Public Works staff reviewed the comments for validity and applicability."5 The maps were then adjusted accordingly.6 On September 11 and 18,2012, the Board published notice in the Standard Journal, the local newspaper of record, that a public hearing was scheduled for September 27, 2012.7 The purpose of the public hearing was "to take public comments on the proposed official County Road Map(s)."8 At the hearing, Commission Chairman Ron "Skip" Hurt further explained, "So tonight it's kind of a culmination of about two years of research that Betty Davis, who works in [the] Public Works Department[,] has done."9 He later added, "So we feel like we've gone over these [maps] pretty carefully and tonight what we want to hear from you is ifthere's anything on these maps that you think is not designated correctly, something that we missed or something that's private which should be public or that should be private."10 1 The Court recognizes that the current version of Title 40 has been amended. Unless it indicates otherwise, the Court will cite the sections as they appeared during the times relevant to this matter. z R., p. 1. 3Id 4 R., p. 73. 5 !d. 6 !d. 7 R., p. 22. 8 R.,p.21. /d.atp.4:12-17. 9 R., p. 53, Public Hearing Transcript (September 27, 2012), p. 4:18-20. 10 !d. atp. 5:12-17. AMENDED DECISION ON REVIEW- 2 Page 374 of 408Ty and Tuk Nedrow attended the Public Hearing. 11 During the public comments, Ty Nedrow stated that two roads on the proposed County map were incorrectly designated as county roads. 12 He referred to these roads as the "East Road" and the "North Road." Tuk Nedrow stated that no County equipment had ever been on either road and that the County had never maintained the North Road. 13 Tuk and Ty Nedrow claimed that both roads lead to nowhere. 14 Concerning the East Road, Ty Nedrow said that it went through his field and that fishermen occasionally got stuck in it while attempting to get to a nearby reservoir. 15 Concerning the North Road, Tuk Nedrow explained, "It goes through a quarter mile of our property and a quarter mile of Mr. [Achtley's] and it goes through a half a mile ofBLM and then hits the Forest Service [road] .... " 16 Ty Nedrow also explained that although the North Road was referred to as the "mail route," his grandpa had told him that it was a shortcut and had never been used for carrying mail or passengers but only for stage coaches returning from West Yellowstone without cargo; the lava rock grates on the road broke many wheels. 17 He also explained that the North Road was gated on his property and that it was also gated before it reached Mr. Atchley's property. 18 A discussion arose during the Public Hearing as to whether the North Road was an R.S. 2477 road, which was explained to be a road in use before 1975 that could not be taken from the public. 19 Recognizing that certain roads might be R.S. 2477 roads, Chairman Hurt indicated that the Board had "60 days after this hearing to make a decision, and ... we may have to collect more information. We may have to have another public hearing .... "20 About two weeks later, on October 15, 2012, the Board held a meeting where it considered the content of the proposed County map in light of the public comments.21 The Board brought up Ty and Tuk Nedrow's objections concerning the East Road and the North II R., pp. 23-24. 12 R., p. 53, Public Hearing Transcript (September 27, 2012), p. 4:18-20. 13 Id. at pp. 21:16-18; 21:25-22:1; 22:13-14. 14 Jd. at pp. 15:19-20,21:16-18,21:25-22:3. 15 !d. at p. 15:16-21. 16 !d. at p. 22:3-10. 17 !d. atpp. 16:22-17:20. 18 Jd. at p. 18:15-18. 19 Jd. at 18:22-19:23. In reality, R.S.-2477 was repealed in 1976, and any "rights created under it are valid ifthey existed before October 21, 1976." Farrell v. Bd. ofComm'rs, Lemhi Cnty., 138 Idaho 378, 384, 64 P.3d 304, 310 (2002), overruled on different grounds by City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012). 20 R., p. 53, Public Hearing Transcript (September 27, 2012), p. 20:7-20:17 21 R., pp. 57-58. AMENDED DECISION ON REVIEW- 3 Page 375 of 408Road and agreed that the East Road should be closed to the public, recognizing the issues Ty Nedrow had raised during the Public Hearing.22 However, it decided to leave the North Road designated as a public road. An unidentified woman present at the meeting informed the Board that "an old Shell Oil map on the Internet" seemed to show that people were being directed down the North Road as far back as 1956.23 The Shell Oil map was apparently not presented at the meeting and does not appear anywhere in the record.Z4 The Board then concluded that "any roads [used] prior to [1976] cannot be closed. They fall under this RS-2477 that if they were ever used as public roads then public domain takes precedence. "25 In other words, the Board concluded that because the North Road had been "ascertained a 2477 road," it would be designated on the Official Road Map as a public road.26 At an October 29, 2012 meeting, the Board voted and approved by a two-to-one vote the Official Road Map,27 which was published as Ordinance No. 2013-01.28 The Official Road Map lists the East Road as one of various "Private Roads" and the North Road as a "County Dirt Road."29 The Board's findings of fact state that the "[r]oads [in the Official Road Map] were identified as Fremont County roads based on" several criteria, one of which was that "[t]he roads had been asserted under Federal Law R.S.-2477 and Idaho Code 40-204 and 40-107 or are the sole essential connection roads asserted as R.S.-2477 roads."30 In its conclusions oflaw, the 22 R., p. 59 (audio CD recording), 5:09-9:53. All future references to this audio recording are contained within this timeframe. Regarding the East Road, the Board stated that people were "going up and getting stuff." !d. It did not specifically mention, as discussed earlier, that Ty Nedrow expressed concern during the Public Hearing that the East Road went through his field and that many fishermen got stuck in it while attempting to get to a reservoir. R., p. 53, Public Hearing Transcript (September 27, 2012), p. 15:16-21. 23 R., p. 59 (audio CD recording). The audio recording does not clearly state whether this comment was directed at the North Road or the East Road; however, in the context of the discussion, the Court concludes that the comment concerned the North Road. !d. Also, the audio recording does not clearly identifY the woman speaking, but those present at the meeting were "Commissioners Skip Hurt, Lee Miller, Jordon Stoddard," "Clerk Abbie Mace, Deputy Clerk Laura Singleton, Public Works Director Marla Vik, Prosecuting Attorney Joette Lookabaugh, Greg Newkirk, and Debbie Davis." R., p. 53, Public Hearing Transcript (September 27, 2012), p. 15:16-21. 24 The Court is mindful that Respondent's attorneys have alleged in their brief that "the Commissioners reviewed" the map in question. Respondent's Brief, pp. 6-7. However, the recorded transcript does not confirm this assertion, and the record does not indicate that Mr. Hall or Mr. Starnes were present at the meeting. 25 R., p. 59 (audio CD recording). 26 Jd. 27 R., p. 64. 28 R., p. 66. 29 R., p. 93. 30 R., pp. 72-73, ~ 6. Paragraph 6 of the Findings of Fact begins: "Roads were identified as Fremont County roads based on the following criteria: ... " Jd. This language suggests that the roads met all six listed criteria; however, this would be problematic since the North Road seems to have been asserted as meeting only the last of the six criterion, which concerns R.S. 2477 roads. Therefore, the Court interprets this list to suggest that roads met at least one of the listed criteria. AMENDED DECISION ON REVIEW- 4 Page 376 of 408Board stated that "[a ]11 roads identified in [the Official Road Map] are determined by the Fremont County Board of Commissioners to be County roads, either paved, gravel or unimproved (dirt); and are not recorded in the Board of Commissioners' official minutes as vacated or abandoned; and are routinely maintained by the County."31 The Board more specifically stated that "[a]ll roads identified in [the Official Road Map] as being R.S.-2477 roads are determined by the Fremont County Board of Commissioners as having been asserted under Federal Law R.S. 2477 and Idaho Code 40-204 and 40-107. The same are identified in official records in the Fremont County Public Works office."32 The Board also stated that "[a]ll roads found on the Official Fremont County Road Map constitutes public notice that evidence has been presented to the Fremont County Board of Commissioners that the roads may qualify as a public right-of-way."33 It also clarified, "Inclusion of roads on the Official Fremont County Road Map does not constitute validation or abandonment of any road. "34 III. STANDARD OF REVIEW "Decisions made by a board of county or highway district commissioners in an abandonment, vacation or validation proceeding are subject to judicial review pursuant to I. C. § 40-208." Homestead Farms, Inc. v. Bd. ofComm'rs ofTeton Cnty., 141 Idaho 855,858, 119 P .3d 630, 633 (2005). In such cases, the court conducts a review without a jury and is confined to the record. I. C. § 40-208(6). The court may not substitute its judgment for that ofthe governing board regarding the weight of the information on questions of fact. I.C. § 40-208(7). In the case at bar, Petitioners do not challenge a decision regarding an abandonment, vacation, or validation proceeding, but rather the Board's decision to place a disputed road on an official county highway map in a§ 40-202 proceeding. In Homestead Farms, 141 Idaho at 858, 119 P.3d at 633, the Supreme Court stated: [S]ince I.C. § 40-202 is contained in the section of the Code relating to general provisions for the establishment and maintenance of the state and county highway system, including procedures required for abandonment, vacation or validation of highways, it is logical that the statutorily mandated standard of review under § 40-208 should apply to § 40-202 decisions. 31 R., p. 74. 32 !d. 33 R., pp. 74-75, ~ 9 (emphasis added). 34 !d. AMENDED DECISION ON REVIEW- 5 Page 377 of 408Under this code section, the reviewing court may affirm a board's decision or remand the case for further proceedings. I. C. § 40-208(7). Additionally, !d. [t]he Court may reverse or modify the [Board's] decision if substantial rights of the appellant have been prejudiced because the [Board's] findings, inferences, conclusions or decisions are: (a) In violation of constitutional or statutory provisions; (b) In excess of the statutory authority of the commissioners; (c) Made upon unlawful procedure; (d) Affected by other error of law; (e) Clearly erroneous in view of the reliable, probative and substantial information on the whole record; or (f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Factual findings are not erroneous when supported by competent and substantial evidence even though conflicting evidence exists. Wulffv. Sun Valley Co., 127 Idaho 71,73-74,896 P.2d 979, 981-82 (1995). "Substantial and competent evidence is 'relevant evidence that a reasonable mind might accept to support a conclusion."' Hu.ffv. Singleton, 143 Idaho 498, 500, 148 P.3d 1244, 1246 (2006) (quoting Jensen v. City of Pocatello, 135 Idaho 406,412, 18 P.3d 211,217 (2000)). "Erroneous conclusions of law made by an agency may be corrected on appeal." Homestead Farms, 141 Idaho at 859, 119 P.3d at 634 (citing Love v. Board of County Comm 'rs of Bingham County, 105 Idaho 558,559,671 P.2d 471,472 (1983)). Accordingly, this Court can freely review any question oflaw, but it will not substitute its own judgment for the Board's as to the weight afforded the evidence on a question of fact. IV. ISSUES PRESENTED ON REVIEW Petitioners present the following issues on review for consideration by the Court: 1. Did the Board give proper notice of its intent to adopt the Official Road Map (Fremont County Ordinance No. 2013-01)? 2. Did the Board make proper factual determinations in support of adopting the Official Road Map (Fremont County Ordinance No. 2013-01)? 3. By failing to make proper factual determinations, did the Board engage in unlawful procedure, act arbitrarily and capriciously, or abuse its discretion when it placed the North Road on the Official Road Map? AMENDED DECISION ON REVIEW- 6 Page 378 of 408V. DISCUSSION A. The Board gave proper notice of its intent to adopt the Official Road Map. "Idaho Code § 40-202 provides the manner in which a board of county commissioners or highway district designates public highways and rights-of-way." Homestead Farms, 141 Idaho at 859, 119 P.3d at 634. This "initial selection ofthe county highway system and highway district system" requires that the "board of county or highway or district commissioners" take several actions. I.C. § 40-202(1). These are: 1) prepare a map "showing the general location of each highway and public right-or-way in their jurisdiction;" 2) give notice of its "intention to adopt the map as the official map of that system;" and 3) "specify the time and place [for a public hearing] at which all interested persons may be heard" regarding the adoption of the proposed map. Id. Although Petitioners have asserted that the Board did not provide proper notice, they have failed to articulate the nature of the deficiency. The Court finds that the Board has fulfilled the three requirements of I. C. § 40-202(1 ). Specifically, it prepared a map facially complying with the statute, indicated its intent to adopt the proposed County map, and published proper notice of the time and place of the public hearing on that map in the Standard Journal on September 11 and 18, 2012. Petitioners have failed to point to any procedural deficiency in the manner in which the Board conducted its adoption of the disputed ordinance. Therefore, the Court must conclude as a matter of law that the Board has fully complied with the notice requirements ofl.C. § 40-202(1). B. The Board failed to make adequate factual determinations before adopting the Official Road Map. Idaho Code§ 40-202(1) also requires that "[a]fter the hearing, the commissioners shall adopt the map, with any changes or revisions considered by them to be advisable in the public interest, as the official map of the respective highway system." Id. Petitioners claim that before adopting the map, the Board failed to make proper factual determinations regarding the public or private status of the North Road. They contend that the North Road is not an R.S. 2477 road and that the Board is required to prove such status. AMENDED DECISION ON REVIEW- 7 Page 379 of 408Although the process outlined in I.C. § 40-202(1)-iffollowed properly-results in an official county map of roads, it "does not also serve to adjudicate the public status of any roads within the county or create new public highways or rights-of-way." Homestead Farms, 141 Idaho at 859-60, 119 P.3d at 634-35.35 Thus, when adopting an initial county map of roads, the Board neither validates nor vacates roads as R.S. 2477 or other roads. Rather, the Board makes "a determination that a particular roadway occupies the status, in fact, of a public highway or right-of-way." !d. at 861. Therefore, the process for establishing an R.S. 2477 road is relevant to the extent that the Board could reasonably find, based on the evidence before it, that the North Road was, in fact, an R.S. 2477 road and therefore a public right-of-way. Under United States Revised Statute 2477, a state government entity can grant public status to a road on public lands. The Idaho Supreme Court explained this process: The federal statute creating R.S. 2477 roads provided that "[t]he right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." 43 U.S.C.A. § 932 (1866) (repealed 1976). While this statute has been repealed, otherwise valid leases, permits, patents and similar rights created under it are valid ifthey existed before October 21, 1976. Pub.L. 94-579, § 706(a) (1976). Farrellv. Bd. ofComm'rs, Lemhi Cnty., 138 Idaho 378,384,64 P.3d 304,310 (2002), overruled on different grounds by City of Osburn v. Randel, 152 Idaho 906, 277 P.3d 353 (2012). Concerning this "freezing" of R. S. 24 77 rights as they existed in 197 6, the 1Oth Circuit stated: The difficulty is in knowing what [valid and existing rights] means. Unlike any other federal land statute of which we are aware. the establishment ofR.S. 2477 rights of way required no administrative fom1alities: no entry, no application, no license, no patent, and no deed on the federal side; no formal act of public acceptance on the part of the states or localities in whom the right was vested. As the Supreme Court ofUtah noted 75 years ago, R.S. 2477 "'was a standing offer of a free right of way over the public domain,"' and the grant may be accepted "without formal action by public authorities." Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929), (quoting Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901)). In its Report to Congress on R.S. 2477: The History and Management of R.S. 2477 Rights-of-Way Claims on Federal and 35 It is worth noting that the Idaho Legislature has revised I. C. § 40-202 in what appears to be approval of the Homestead Farms decision. Subsection 8 now states in relevant part: The purpose of this official map is to put the public on notice of those highways and public rights-of-way that the board of county or highway district commissioners considers to be public. The inclusion or exclusion of a highway or public right-of-way from such a map does not, in itself, constitute a legal determination of the public status of such highway or public right-of-way. Any person may challenge, at any time, the inclusion or exclusion of a highway or public right-of-way from such map by initiating proceedings as described in section 40-208(7), Idaho Code. Idaho Code Ann. § 40-202 (2013). AMENDED DECISION ON REVIEW- 8 Page 380 of 408Other Lands 1 (June 1993 ), the Department of the Interior explained that R.S. 24 77 highways "were constructed without any approval from the federal government and with no documentation of the public land records, so there are few official records documenting the right-of-way or indicating that a highway was constructed on federal land under this authority." In short, identifying valid R.S. 2477 roads is a difficult and controversial matter. Indeed, it appears nothing has been done legislatively on the federal level to clarify the process: Despite decades oflitigation over R.S. 2477 roads, Congress has not spoken to the issue by amending FLPMA [which repealed R.S. 2477 in 1976] and providing a statutory framework to help courts resolve the discrepancies between the statutes; nor has it delegated authority to federal management agencies to promulgate regulations guiding their administration ofR.S. 2477 claims. In fact, Congress has actually prohibited the BLM from adopting regulations establishing a framework for agency adjudication ofR.S. 2477 claims. There is also no legislative history of R.S. 2477 that might provide informal guidance to litigants. Hillary M. Hoffmann, Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane County Leaves Everyone Confused About Navigating A Right-of-Way Claim Under Revised Statute 2477, 18 Hastings W.-N.W. J. Envtl. L. & Pol'y 3, 9-10 (2012) (internal citations omitted). Without guidance from the federal government, "[s]tate law governs the manner in which a road on federal property becomes public under R.S. 2477." Sopatyk v. Lemhi Cnty., 151 Idaho 809, 814,264 P.3d 916, 921 (2011) (citing Galli v. Idaho Cnty., 146 Idaho 155, 160, 191 P.3d 233, 238 (2008)); accord Standage Ventures, Inc. v. Arizona, 499 F.2d 248, 250 (9th Cir.1974); United States v. Pruden, 172 F.2d 503, 505 (lOth Cir.1949); Smith v. Mitchell, 21 Wash. 536, 540, 58 P. 667, 668 (1899) ("[Under R.S. 2477,] a highway may be established across or upon such public lands in any of the ways recognized by the law of the state in which such lands are located .... "). In Idaho, a valid and existing R.S. 2477 road exists if"the local government accepted the road from the federal government." Farrell, 138 Idaho at 384, 64 P.3d at 310. This acceptance can occur in two ways: "through a positive act of acceptance by the local government or compliance with the road creation statutes in existence at the time." Galli, 146 Idaho at 159, 191 P.3d at 237 (explaining Farrell, 138 Idaho at 384, 64 P.3d at 310). A positive act of acceptance "is more lax than the requirements set forth in the state road creation statute[s]." Farrell, 138 Idaho at 384, 64 P.3d at 310. Also, the Supreme Court has stated: No R.S. 2477 road may be established once the land has been removed from the public domain. However, if an R.S. 2477 road is established prior to the land exiting the public domain, regardless if it is officially recognized or not, then that AMENDED DECISION ON REVIEW- 9 Page 381 of 408!d. grant remains effective even though the land which the road traverses is now private property. Due to the difficulty in granting and/or adjudicating R.S. 24 77 roads, it is understandable that some states, like Idaho, have procedures for state public officials to identify pubic rights-of-way on maps, including those that may be R.S. 2477 roads, short of adjudication. This is a less formal process with often non-binding results. See, e.g., Utah Code Ann. § 72-3-105 (West) ("Each county shall prepare maps showing to the best of its ability the class D roads within its boundaries which were in existence as of October 21, 1976 [the date that R.S. 2477 was repealed] .... The county shall provide a copy of any map ... to the department. ... The department is not responsible for the validity of any class D road . ... ") (emphasis added). In Idaho, when mapping an initial selection of the county highway system, a board is required to show by the record that-before adopting the Official Road Map-it considered objections, provided evidence, and made findings concerning the public status of roads contained therein. Homestead Farms, 141 Idaho at 861, 119 P.3d at 637. The evidence provided must be substantial and competent; in other words, it must support whatever factual findings made before concluding that the road in question is an R.S. 2477 road. As explained above, in Idaho, an R.S. 24 77 road must be established prior to the land exiting the public domain and prior to October 21, 1976. If a road is so established but not yet officially recognized, the original grant remains effective even after the land is privately acquired, regardless of the date of acquisition. In the case at bar, the Board met together after the Public Hearing and discussed whether the North Road was established prior to 1976. Although Ty Nedrow had testified at the Public Hearing that the North Road had been a shortcut used for empty stage coaches returning from West Yellowstone, the record establishes that the Board did not consider his testimony and made no factual determination regarding it. Instead, the Board and those present focused mainly on the statement of an unidentified woman present at the meeting: "I actually came across an old Shell Oil map on the Internet that, by looking at it, it looks like that that's actually the way back in 1956 they were trying to route people."36 The Board accepted this interpretation of the map, even though it apparently never actually saw a copy of the referenced map. Additionally, the record contains neither a copy of the map nor further mention of where to locate the map. 36 R., p. 59 (audio CD recording). AMENDED DECISION ON REVIEW- 10 Page 382 of 408Therefore, this Court has no way of confirming that (1) the map actually existed, (2) the unidentified speaker's interpretation of the map was correct or reasonable, and (3) the map provided the Board with substantial, probative, and reliable evidence to support its factual determination that the North Road had been established prior to 1976. Ultimately, this Court cannot properly evaluate the Board's conclusion that the North Road had been "ascertained a 2477 road" and should be designated on the Official Road Map as a public road.37 The Court is mindful that the Board neither attempted to adjudicate the North Road as an R.S. 2477 road, nor was it not required to do so. See Homestead Farms, 141 Idaho at 859-60, 119 P.3d at 634-35. However, the evidence before the Board in the record must at a minimum support its determination that the North Road qualifies for R. S. 24 77 status. See !d. at 861, 119 P.3d at 636. The record does not contain sufficient evidence to support the Board's findings and conclusions on this issue. Even assuming that the Board properly considered Ty Nedrow's testimony and that this, in conjunction with the "old Shell Oil map," somehow provided substantial and competent evidence to support the Board's determination that the North Road was in use and established prior to October 21, 1976, nothing in the record establishes that this occurred before the North Road left the public domain. This is an additional requirement before an R.S. 2477 road can be established. The record only shows that Petitioners currently own the land around the North Road. Although Ty Nedrow said that the North Road had been used for stagecoaches, suggesting a strong possibility that the road was used and established prior to it being privately owned, nowhere in the record does the Board address or make findings regarding this necessary element of an R.S. 2477 road. In sum, the Board did not, before adopting the Official Road Map, make adequate factual determinations that the North Road was established prior to the land exiting the public domain and prior to October 21, 1976. Thus, its inclusion in the Official Road Map as a public road was clearly erroneous. I. C. § 40-208(7)( e). The Court recognizes that when it sits in an appellate capacity, it should not "search the record for error." Miller v. Callear, 140 Idaho 213,218, 91 P.3d 1117, 1122 (2004). Nevertheless, in the interest of judicial economy, and to assist the parties on remand, the Court believes it is appropriate to note that other factual findings of the Board are problematic. 38 For 37 Jd 38 These matters did not provide the basis for the Court's decision. AMENDED DECISION ON REVIEW- 11 Page 383 of 408example, the Official Road Map appears to list the North Road as a "County Dirt Road," not as an R.S. 2477 road.39 However, in its conclusions of law, the Board stated that "[a]ll roads identified in [the Official Road Map] are determined ... to be County roads, either paved, gravel or unimproved (dirt); ... and are routinely maintained by the County."40 While the North Road appears to be listed as a "County Dirt Road," there is no factual support in the record for finding that the North Road is routinely maintained by the County. On the contrary, Tuk Nedrow stated at the Public Hearing that the County had never placed equipment on or maintained the North Road.41 Even if the Board had depicted the North Road as an R.S. 2477 road on the official map, rather than as a "County Dirt Road," it specifically stated that"[ a]ll roads identified in [the Official Road Map] as ... R.S.-2477 roads ... hav[e] been asserted under Federal Law R.S. 24 77 and Idaho Code 40-204 and 40-1 07. The same are identified in official records in the Fremont County Public Works office.'.42 The record is devoid of any official record that identifies the North Road as an R.S. 2477 road. C. The record establishes that the Board's decision designating the North Road on the Official Road Map as an R.S. 2477 Road was clearly erroneous and it acted in an arbitrary and capricious manner. "An action is capricious if it was done without a rational basis. It is arbitrary if it was done in disregard of the facts and circumstances presented or without adequate determining principles." Am. Lung Ass 'n of Idaho/Nevada v. State, Dep 't of Agric., 142 Idaho 544, 547, 130 P.3d 1082, 1085 (2006) (internal citations omitted). Here, the Board's decision that the North Road was an R.S. 2477 road appears from the record to be based entirely upon an interpretation of an alleged map found on the Internet that the Board itself failed to examine or include in the record for the Court to examine. Also, although the Board concluded that the North Road was routinely maintained by the County, it neither provided support for this conclusion nor addressed the oral testimony claiming the contrary. Moreover, it did not consider or make factual determinations regarding when the North Road left the public domain. Therefore, the Board's decision was clearly erroneous because it lacked adequate factual support from reliable, 39 R., p. 93. 40 R., p. 74. 41 R., p. 59 (audio CD recording), pp. 21:25-22:1; 22:13-14. 42 R., p. 74. AMENDED DECISION ON REVIEW- 12 Page 384 of 408probative, and substantial evidence. Additionally, the decision to rely upon the limited evidence set forth in the record was an arbitrary and capricious abuse of its discretion. D. Petitioners may seek reasonable attorney fees and costs. Petitioners seek recovery of their attorney fees and costs pursuant to I.C. §§ 12-117 and 12-121, as well as I.R.C.P. 54( d) and (e). The Idaho Supreme Court has previously held that fees and costs could not be awarded against a county in a petition for judicial review under I. C. § 12-117 inasmuch as it would not qualify as "a civil action" because it was not "commenced by the filing of a complaint with the court." Smith v. Washington County, Idaho, 150 Idaho 388,391, 247 P.3d 615, 618 (2010). However, I.C. § 12-117(1) was amended by the Idaho legislature in 2012, changing the language from "any administrative proceeding or civil judicial proceeding" to "any proceeding." Additionally, I.C. § 12-117(5) was amended to specifically include a "petition for judicial review" among the type of cases defined as a "proceeding." Therefore, the amendments to I.C. § 12-117 appear to be a deliberate response by the legislature to avoid the holding in Smith. Under the current version ofi.C. § 12-117, a court "shall award the prevailing party reasonable attorney's fees, witness fees and other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law." This language not only covers attorney fees but "reasonable expenses," which the Court interprets to include what are generally referred to as "costs" under I.R.C.P. 54( d). Therefore, Petitioners are entitled to seek costs and fees under I.C. § 12-117 and have fourteen days to submit a memorandum of costs and fees. Petitioners have also requested attorney fees under I.C. § 12-121 and I.R.C.P. 54( e). "Attorney fees are not available to a party on appeal from an agency decision under [I.C. § 12-121]" because it pertains to civil actions. Staff of Idaho Real Estate Comm 'n v. Nordling, 135 Idaho 630, 637,22 P.3d 105, 112 (2001); see also Potlatch Educ. Ass'n v. Potlatch Sch. Dist., 148 Idaho 630, 635,226 P.3d 1277, 1282 (2010). Idaho Rule of Civil Procedure 54(e) also pertains to civil actions and is, therefore, likewise inapplicable to this case. AMENDED DECISION ON REVIEW- 13 Page 385 of 408VI. CONCLUSION Having reviewed the record below and the applicable laws and standards, the Court finds that the Findings and Conclusions issued by the Board in support of County Ordinance No. 2013-01 on October 29, 2012 violate I.C. §§ 40-202 or 40-208. Therefore, the portions of County Ordinance No. 2013-01 declaring the North Road to be a public right-of-way (either as an R.S. 2477 Road or as a County Dirt Road) are hereby VACATED. This matter shall be REMANDED to the Fremont County Board of Commissioners to properly consider the status of the North Road and issue a new County Map in a manner consistent with this opinion. In light of this decision, Petitioners' request for injunctive relief has been rendered moot. However, ifthe County or members of the general public attempt to maintain and/or use the North Road in reliance on the current Official Road Map and/or County Ordinance No. 2013-01, Petitioners' claim for injunctive relief would at that time become ripe for adjudication. Finally, Petitioners, as prevailing parties, are entitled to seek costs and fees under I.C. § 12-11 7, by filing an appropriate motion and memorandum of costs and fees within fourteen days. f'cl SO ORDERED this __QJ_: day of October, 2013. AMENDED DECISION ON REVIEW- 14 Page 386 of 408CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing DECISION ON REVIEW was this 23,..,( day of October, 2013, served upon the following individuals via U.S. Mail: Lynn Hossner Attorney at Law 109 North Second West St. Anthony, Idaho 83445 Blake G. Hall, esq. Nathan R. Starnes, esq. NELSON HALL PARRY TUCKER, P.A. 490 Memorial Drive P.O. Box 51630 Idaho Falls, Idaho 83405-1630 Fremont County Board of Commissioners 151 West 1st North St. Anthony, Idaho 83445 By:~~~~ a Cle k AMENDED DECISION ON REVIEW- 15 Page 387 of 408From: BLAKE G. HALL, ESQ. NATHAN R. STARNES, ESQ. HALL ANGELL STARNES, LLP 901 Pier View Drive, Suite 203 Idaho Falls, Idaho 83402 Telephone (208) 522-3003 Fax (208) 656-7108 ISB Nos. 2434 & 7484 bgh@hasattomeys.com nrs@hasattomeys.com Attorneys for Respondents 11/06/2013 13:17 #276 P.003/ 005 DISTFliCT SEVEN COURT County o1 fremont State of Idaho Filed: -------=.::::::::::--... ::::::.=--~ -6 2013 ABBie l'vlACE, IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individual1y and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents. Case No. CV-12-580 STIPULATION FOR SUBSTITUTION OF COUNSEL Defendants, by and through counsel of record, NELSON HALL PARRY TUCKER, P.A., hereby stipulate that the law firm of HALL ANGELL & STARNES, LLP, shall be NOTICE OF SUBSTITUTION OF COUNSEL- 1 Page 388 of 408From: 11/06/2013 13:18 #276 P.004/005 substituted as counsel of record for Defendants, and copies of all pleadings or other papers should be directed to: HALL ANGELL & STARNES, LLP 901 Pier View Drive, Suite 203 Idaho Falls, ID 83402 Phone:208-522-3003 Fax: 208-656-7108 Email: bgh@hasattorneys.com: nrs@hasattomeys.com 6/28/13 Date ake . Hall ON HALL PARRY TUCKER, P.A. 1116/13 Date NOTICE OF SUBSTITUTION OF COUNSEL- 2 Page 389 of 408From: 11/06/2013 13:18 #276 P.OOS/005 CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this _6_ day of November, 2013 by the method indicated below: Lynn Rossner, Esq. 109N 2nd W St. Anthony, ID 83445 Fax: 624-3783 Honorable Gregory W. Moeller FREMONT COUNTY COURTHOUSE 151 W P'N St. Anthony, ID 83445 NOTICE OF SUBSTITUTION OF COUNSEL- 3 [ ] Mailing [ ] Hand Delivery [xfFax [ ] Overnight Mail [ ] Mailing [ ] Hand Delivery m:rnight Mail Page 390 of 408BLAKE G. HALL, ESQ. NATHAN R. STARNES, ESQ. HALL ANGELL STARNES, LLP 901 Pier View Drive, Suite 203 Idaho Falls, Idaho 83402 Telephone (208) 522-3003 Fax (208) 656-7108 ISB Nos. 2434, 7012 & 7484 bgh@hasattomeys.com nrs@hasattomeys.com Attorneys for Respondents/ Appellants tllV -8 2013 IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents/ Appellants. Case No. CV-12-580 NOTICE OF APPEAL 1. Respondents hereby appeal to the Idaho Supreme Court from the Decision on Review 10/10/13 ); and Amended Decision on Review (10/23/13) by the Honorable Gregory W. Moeller. NOTICE OF APPEAL - 1 Page 391 of 4082. Respondents have the right to appeal to the Idaho Supreme Court because the Decision on Review and Amended Decision on Review by the Honorable Gregory W. Moeller are final within the meaning ofRule 11(a)(2) and 11(f), Idaho Appellate Rules, pertaining to "judgments, orders and decrees." 3. Appellants preliminary statement of issues on appeal are as follows: a. The Court erred in its application ofldaho Code§ 40-202; b. The Court erred in requiring Appellants to conduct a road validation proceeding of a single road (RS 2477 road) where the County is attempting to adopt the first official county roadmap; c. The Court erred in declaring that the Appellants acted in an arbitrary and capricious manner in designating a single road (RS 24 77 road) as a public road and when adopting the first official county roadmap; d. The Court erred in finding that Petitioner's may seek reasonable attorney's fees and costs on appeal. 4. A reporter's transcript of the oral argument hearing held on August 27, 2013 is requested, excluding nothing. a. Appellant otherwise requests appropriation ofthe entire reporter's standard transcript as defined in Rule 25 (c), Idaho Appellate Rule; b. Appellant requests, pursuant to Rule 26.1, Idaho Appellate Rules, that the reporter provide disks, or electronic media, of all transcripts. 6. Appellant requests the following be included in the clerk's record on appeal, in addition to those automatically included under Rule 28, Idaho Appellate Rules: a. the entire record on appeal with the district court; NOTICE OF APPEAL - 2 Page 392 of 408b. all documents not formally filed by the Court or clerks but treated as "lodged" with the Court or clerk, including memoranda or otherwise. 7. No order has been entered sealing any portion of the record. 8. I certify that: (a) a copy of this Notice of Appeal has been served on the reporter; (b) the clerk of the district court has been paid $100 in advance to be held in trust for the court reporter for preparation of the transcript pursuant to Rule 24( c), Idaho Appellate Rules; (c) any additional fee will be paid upon determination of the amount required; (d) the clerk of the district court has been paid $100 in advance for preparation of the clerk's record pursuant to Rule 27(d), Idaho Appellate Rules; (e) the Appellate filing fee has been paid; (f) service has been made on all parties required to be served pursuant to Rule 20, Idaho Appellate Rules, and David Marlow, CSR, Madison County Courthouse, PO Box 389, Rexburg, ID 83340, pursuant to Rule 24 (c), Idaho Appellate Rules. DATED this~ day ofNovember, 2013. NOTICE OF APPEAL - 3 Page 393 of 408CERTIFICATE OF SERVICE ~ I hereby certify that I served a true copy of the foregoing document upon the following this __J:!:_ day of November, 2013 by the method indicated below: Lynn Rossner, Esq. f1 Mailing 109N 2ndw St. Anthony, ID 83445 Hand Delivery [ ] Fax Fax: [ ] Overnight Mail David Marlow, CSR M Mailing Madison County Courthouse Hand Delivery PO Box 389 [ ] Fax Rexburg, ID 83340 [ ] Overnight Mail Honorable Gregory W. Moeller J><] Mailing Madison County Courthouse [ ] Hand Delivery [ ] Fax PO Box 389 [ ] Overnight Mail Rexburg, ID 83440 ~ NOTICE OF APPEAL - 4 Page 394 of 408BLAKE G. HALL, ESQ. NATHAN R. STARNES, ESQ. HALL ANGELL STARNES, LLP 901 Pier View Drive, Suite 203 Idaho Falls, Idaho 83402 Telephone (208) 522-3003 Fax (208) 656-7108 JSB Nos. 2434, 7012 & 7484 bgh@hasattorneys.com nrs@hasattorneys.com Attorneys for Respondents/ Appellants DiSTFilCT SEVEN COURT County o1 Fremont State of Idaho Filed: ·- ·---[~0~ 26 ~13] Qf.83lE MACE, CLt:iiK By· .... JZ!2~.L..------.=:-::-:-:-7":"~:-::L: · Dep:1ty Clerk IN THE DISTRICT COURT OF THE SEVENTH IDDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF FREMONT FLYING "A" RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents/ Appellants. Case No. CV-12-580 AMENDED NOTICE OF APPEAL 1. RESPONDENTS, Board of County Commissioners for Fremont County, by and through counsel of record, Hall Angell Starnes, LLP, hereby appeals against the above named PETITIONERS, Flying "A" Ranch, Inc., Clen Atchley, Emma Atchley, Laura Pickard, Clay AMENDED NOTICE OF APPEAL - 1 Page 395 of 408Pickard, Geroge Ty Nedrow, and David Tuk Nedrow, by and through their counsel Lynn Rossner, to the Idaho Supreme Court from the Decision on Review 10/10/13); and Amended Decision on Review (10/23/13) by the Honorable Gregory W. Moeller presiding. 2. Respondents have the right to appeal to the Idaho Supreme Court because the Decision on Review and Amended Decision on Review by the Honorable Gregory W. Moeller are final within the meaning of Rule ll(a)(2) and ll(f), Idaho Appellate Rules, pertaining to "judgments, orders and decrees." 3. Appellants preliminary statement of issues on appeal are as follows: a. The Court erred in its application ofldaho Code § 40-202; b. The Court erred in requiring Appellants to conduct a road validation proceeding of a single road (RS 24 77 road) where the County is attempting to adopt the first official county roadmap; c. The Court erred in declaring that the Appellants acted in an arbitrary and capricious manner in designating a single road (RS 2477 road) as a public road and when adopting the first official county roadmap; d. The Court erred in finding that Petitioner=s may seek reasonable attomey=s fees and costs on appeal. 4. A reporter's transcript of the oral argument hearing held on August 27, 2013 is requested, excluding nothing. a. Appellant otherwise requests appropriation of the entire reporter's standard transcript as defined in Rule 25 (c), Idaho Appellate Rule; b. Appellant requests, pursuant to Rule 26.1, Idaho Appellate Rules, that the reporter provide disks, or electronic media, of all transcripts. AMENDED NOTICE OF APPEAL - 2 Page 396 of 4086. Appellant requests the following be included in the clerk's record on appeal, in addition to those automatically included under Rule 28, Idaho Appellate Rules: a. the entire record on appeal with the district court; b. all documents not formally filed by the Court or clerks but treated as "lodged" with the Court or clerk, including memoranda or otherwise. 7. No order has been entered sealing any portion of the record. 8. I certify that: (a) a copy of this Notice of Appeal has been served on the reporter; (b) the clerk of the district court has been paid $1 00 in advance to be held in trust for the court reporter for preparation of the transcript pursuant to Rule 24( c), Idaho Appellate Rules; (c) any additional fee will be paid upon determination of the amount required; (d) the clerk of the district court has been paid $100 in advance for preparation of the clerk=s record pursuant to Rule 27(d), Idaho Appellate Rules; (e) the Appellate filing fee has been paid; (f) service has been made on all parties required to be served pursuant to Rule 20, Idaho Appellate Rules, and David Marlow, CSR, Madison County Courthouse, PO Box 389, Rexburg, ID 83340, pursuant to Rule 24 (c), Idaho Appellate Rules. DATED this __dQ_ day ofNovember, 2013. AMENDED NOTICE OF APPEAL - 3 Page 397 of 408; ' CERTIFICATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this~ day ofNovember, 2013 by the method indicated below: Lynn Rossner, Esq. 109N2ndw St. Anthony, ID 83445 Fax: David Marlow, CSR Madison County Courthouse PO Box 389 Rexburg, ID 83340 Honorable Gregory W. Moeller Madison County Courthouse PO Box 389 Rexburg, ID 83440 AMENDED NOTICE OF APPEAL - 4 J>, CLAY PICKARD, GEORGE TV NEDROW, DAVID TUK NEDROW, Petitioners-Respondents, v. FREMONT COUNTY BOARD OF COMMISSIONERS, RONALD "SKIP" HURT and LEROY MILLER, Respondent~Appellant. Case No. CV-2012-0000580 ClERK'S CERTIFICATE OF APPEAl APPEAL FROM THE SEVENTH JUDfOAl DISTRICT, FREMONT COUNTY. HONORABLE JUDGE GREGORY W. MOEUER PRESIDING CASE NUMBER FROM COURT: ORDER OR JUDGMENT APPEALED FROM: AITORNEY FOR APPELLANT: A ITORNEV FOR RESPONDENT: APPEALED BV: APPEALED AGAINST: CV-2012-0000580 Decision of Review and Amended Decision on Review Blake G. Hall lynn Hossner Board Of County Commissioners for Fremont County Idaho, Ronald 11Sklp" Hurt and leroy Miller Flying A Ranch, Inc., Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow & David Tuk Nedrow NOTICE OF APPEAL FILED: November 8, 2013 AMENDED NOTICE OF APPEAL FILED: N/A NOTICE OF CROSS-APPEAl FILED: N/A AMENDED NOTICE OF CROSS-APPEAl FILED: N/A APPEllATE FEE PAID: YES RESPONDENT OR CROSS-RESPONDENT'S REQUEST FOR ADDITIONAl RECORD FILED: N/A TRANSCRIPT FILED: WAS DISTRICT COURT REPORTER'S TRANSCRIPT REQUESTED? YES DISTRICT COURT REPORTER: DAVID MARLOW Page 400 of 408Dated this 8th day of November, 2013 ABBIE MACE Clerk of the District Court Page 401 of 408BLAKE G. HALL, ESQ. NATHAN R. STARNES, ESQ. HALL ANGELL STARNES, LLP 901 Pier View Drive, Suite 203 Idaho Falls, Idaho 83402 Telephone (208) 522-3003 Fax (208) 656-7108 ISB Nos. 1434, 7011 & 7484 bgh@basattomeys.com nrs@hasattomevs.com Attorneys for Respondents/ Appellants 12 IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO. IN AND FOR THE COUN1Y OF FREMONT FLYING "A • RANCH, INC., an Idaho corporation, CLEN ATCHLEY, EMMA ATCHLEY, LAURA PICKARD, CLAY PICKARD, GEORGE TY NEDROW, and DAVID TUK. NEDROW, Petitioners, vs. BOARD OF COUNTY COMMISSIONERS FOR FREMONT COUNTY, IDAHO, a political subdivision of the state of Idaho, RONALD "SKIP" HURT, individually and in his official capacity, and LEROY MILLER, individually and in his official capacity, Respondents/ Appellants. Case No. CV-12-580 NOTICE OF APPEAL Review 10/10113); and Amended Decision on Review (10123/13) by the Honorable OregoryW. Moeller. NOTICE OF APPEAL - 1 Page 402 of 4082. Respondents have the right to appeal to the Idaho Supreme Court because the Decision on Review and Amended Decision on Review by the Honorable Oregory W. Moeller arc final within the meaning of Rule ll(a)(2) and ll(t), Idaho Appellate Rules, pertaining to "judgments, orders and decrees. • 3. Appellants preliminary statement of issues on appeal are as follows: a. The Court erred in its application of Idaho Code § 40-202; b. The Court erred in requiring Appellants to conduct a road validation proceeding of a single road (RS 2477 road) where the County is attempting to adopt the :first official county roadmap; c. The Court erred in declaring that the Appellants acted in an arbitrary and capricious manner in designating a single road (RS 2477 road) as a public road and when adopting the first official county roadmap; d. The Court erred in finding that Petitioner's may seek reasonable attorney's fees and costs on appeal. 4. A reporter's transcript of the oral argument hearing held on August 27, 2013 is requested, excluding nothing. a. Appellant otherwise requests app1opriation of the entire reporter's standard transcript as defined in Rule 25 (c), Idaho Appellate Rule; b. Appellant requests, pursuant to Rule 26.1, Idaho Appellate Rules, that the reporter provide disks, or electronic media, of all transcripts. 6. Appellant requests the following be included in the clerk's record on appeal, in addition to those automatically included under Rule 28, Idaho Appellate Rules: a. the entire record on appeal with the district court; NOTICE OF APPEAL - 2 Page 403 of 408b. all docwnents not formally filed by the Court or clerks but treated as "lodged• with the Comt or clerk, including memoranda or otherwise. 7. No order has been entered sealing any portion of the record. 8. I certify that: (a) a copy of this Notice of Appeal has been served on the reporter; (b) the clerk of the district court bas been paid $100 in advance to be held in trust for the court reporter for preparation of the transaipt pursuant to Rule 24( c), Idaho Appellate Rules; (c) any additional fee will be paid upon determination of the amount required; (d) the clerk of the district court bas been paid S 100 in advance for preparation of the clerk's record pursuant to Rule 27(d), Idaho Appellate Rules; (e) the Appellate filing fee has been paid; (f) service has been made on all parties required to be served pursuant to Rule 20, Idaho Appellate Rules, and David Marlow, CSR, Madison ColDlty Courthouse, PO Box 389, Rexburg, ID 83340, pursuant to Rule 24 (c), Idaho Appellate Rules. DATED this .:r_ day ofNovember, 2013. NOTICE OF APPEAL - 3 Page 404 of 408CERTmCATE OF SERVICE I hereby certify that I served a true copy of the foregoing document upon the following this _]!:_day of November, 2013 by the method indicated below: Lynn Hossner, Esq. f1 Mailing 109N2DCIW Hand Delivery St. Anthony, ID 83445 [ 1 Fax Fax: [ ] Overnight Mail David Marlow, CSR M Mailing Madison County Courthouse Hand Delivery POBox389 [ 1 Fax Rexburg, ID 83340 [ ] Overnight Mail Honorable Gregory W. Moeller X1 Mailing [ ] Hand Delivery Madison County Courthouse [ ] Fax P0Box389 [ J Overnight Mail Rexburg, ID 83440 '~P...., sWE:Aizs ..(:.,.., NOTICE OF APPEAL - 4 Page 405 of 408IN THE SUPREME COURT OF THE STATE OF IDAHO Flying A Ranch, Inc. an Idaho Corporation, Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow Pia intiff(s )/Respond ent(s ), vs Board Of County Commissioners for Fremont County, a political subdivision of the state of Idaho, Ronald "Skip" Hurt, individually and in his official capacity, and Leroy Miller, individually and in his official capacity Defendant(s)/ Appellant(s). Supreme Court No: 41584-2013 Case No: CV-2012-0000580 NOTICE OF LODGING Notice is hereby given that on January 31. 2014, the Clerk's Record (X L Reporter's Transcript (X ) Exhibits ( X ) in the above referenced appeal was Lodged with the Idaho Court of Appeals. ,,,, .... ,,,,, ,,'~X. Q\V. D!Sr.¢~,, ,, ....... ~' ...•••••.•..• ~"(,> ~ ..:- ~'<:' -·· •• , .... C...".. •• ~, ,~. . --: C!i f SEVENTH\ ; :~ i JUDICIAL i ~: ;~\ COURT~~§ ~ ~··. . .. ~- ..... , .. ... ~~ ~, o4i·······~~ ~~ ,,,, COU~' ~\''' ''''""''''' Abbie Mac Clerk of the District Court Page 406 of 408IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY Flying A Ranch, Inc. an Idaho Corporation, Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow Plaintiff(s}/Respondent(s}, vs Board Of County Commissioners for Fremont County, a political subdivision of the state of Idaho, Ronald "Skip" Hurt, individually and in his official capacity, and Leroy Miller, individually and in his official capacity Defendant(s}/ Appellant(s}. Supreme Court No: 41584-2013 Case No: CV-2012-0000580 Appeal Record Certificate of Service I, Abbie Mace, Clerk of the District Court of the Seventh Judicial District of the State of Idaho, in and for the County of Fremont, do hereby certify that the above and foregoing Record in the above-entitled cause was compiled and bound under my direction and is a true, full and correct Record of the pleadings and documents under Rule 28 of the Idaho Appellate Rules. I do further certify that all documents, x-rays, charts and pictures offered or admitted in the above-entitled cause will be duly lodged with the Clerk of the Supreme Court along with the Court Reporter's Transcript and Clerk's Record. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Court at St. Anthony, Fremont, Idaho, this 31st day of January, 2014. ,,,, .... ,,,,,, ,,,,X. \J.V. DIS lb.''~~ ,, -~ ••••••••••• :: uor ~ ..:- f:!:' •• • ••• ~, ' . . , ~ f5 /SEVENTH\ : §i i JUDICIAL j ;;..j§ ';~\ COURT l~~ ~ -~ .. •.• ~- ..... , '~- .. .. ~~~ .... , ·'7o..,::..·······~··· ~ ~ ,, '"IC ' ,, ,,, au ,,, '''''""''' ~~J AbbieM~ District Court Clerk Bee y Harrigfeld Deputy Clerk Page 407 of 408IN THE SUPREME COURT OF THE STATE OF IDAHO Flying A Ranch, Inc. an Idaho Corporation, Clen Atchley, Emma Atchley, Laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow Plaintiff(s)/Respondent(s), Vs Board Of County Commissioners for Fremont County, a political subdivision of the state of Idaho, Ronald "Skip" Hurt, individually and in his official capacity, and Leroy Miller, individually and in his official capacity Defendant(s)/ Appellant(s). Supreme Court No: 41584-2013 Case No: CV2012-580 Clerk's Certificate of Exhibits I, Becky Harrigfeld, Deputy Clerk of the District Court of the Seventh Judicial District of the State of Idaho, in and for Fremont County, do hereby certify that the following is a list of the exhibits, offered or admitted and which have been lodged with the Supreme Court or retained as indicated: NO. DESCRIPTION SENT/RETAINED Lodged Appeal Record Sent Picture of Map included in Lodged in Appeal Record Sent CD of Work Meeting- Not able to transcribe Sent IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said Court this 31st day of January, 2014. Page 408 of 408IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR FREMONT COUNTY Flying A Ranch, Inc. an Idaho Corporation, Clen Atchley, Emma Atchley, laura Pickard, Clay Pickard, George Ty Nedrow, and David Tuk Nedrow Plaintiff(s)/Respondent(s), vs Board Of County Commissioners for Fremont County, a political subdivision of the state of Idaho, Ronald "Skip" Hurt, individually and in his official capacity, and leroy Miller, individually and in his official capacity Defendant(s)/ Appellant(s). Supreme Court No: 41584-2013 Case No: CV-2012-0000580 CERTIFICATE OF SERVICE I, Abbie Mace, Deputy Clerk of the District Court of the Seventh Judicial District of the State of Idaho, in and for Fremont County, do hereby certify that I have personally served or mailed, by United States mail, postage prepaid, one copy of the Clerk's Record and any reporter's Transcript to each of the parties or their Attorney of Record as follows: lynn Hossner 109 North 2nd West St. Anthony, ID 83445 Blake G. Hall 901 Pier View Drive, Suite 203 Idaho Falls, ID 83402 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said Court this 31st day January of, 2014. Abbie Mace Clerk of the District Court

Pines Grazing Ass\u27n v. Flying Joseph Ranch Clerk\u27s Record v. 1 Dckt. 37236

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