Summary 2012 WY 158

Summary of Decision December 14, 2012

Chief Justice Kite delivered the opinion for the Court. Affirmed in part and reversed in part.

Case Names: NORTHERN LARAMIE RANGE FOUNDATION, a Wyoming non-profit corporation, NORTHERN LARAMIE RANGE ALLIANCE, LLC, a Wyoming limited liability company, and WHITE CREEK RANGE, LLC, a Wyoming limited liability company v. CONVERSE COUNTY BOARD OF COUNTY COMMISSIONERS, and WASATCH WIND INTERMOUNTAIN, LLC d/b/a Pioneer Windpark I, LLC, and Pioneer Windpark II, LLC.

NORTHERN LARAMIE RANGE FOUNDATION, a Wyoming non-profit corporation, NORTHERN LARAMIE RANGE ALLIANCE, LLC, a Wyoming limited liability company v. WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY, INDUSTRIAL SITING DIVISION, and WASATCH WIND INTERMOUNTAIN, LLC d/b/a Pioneer Windpark I, LLC, and Pioneer Windpark II, LLC.

Docket Numbers: S-12-0060; S-12-0061

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Converse County, Honorable Keith G. Kautz, Judge.

Representing Appellants: Peter C. Nicolaysen and Pamela M. Brondos of Nicolaysen and Associates, P.C., Casper, Wyoming. Argument by Mr. Nicholaysen.

Representing Appellee Converse County Board of County Commissioners: No appearance.

Representing Appellee Wasatch Wind Intermountain, LLC: Brent R. Kunz and Lucas Buckley of Hathaway & Kunz, P.C., Cheyenne, Wyoming; John A. Masterson and Alaina M. Stedillie of Rothgerber Johnson & Lyons LLP, Casper, Wyoming. Argument by Mr. Masterson.

Representing Appellee Wyoming Department of Environmental Quality, Industrial Division: Gregory A. Phillips, Wyoming Attorney General; Jay A. Jerde, Deputy Attorney General; Luke J. Esch, Senior Assistant Attorney General. Argument made by Mr. Esch.

Date of Decision: December 14, 2012

Facts: This appeal involved two permitting actions for a wind energy project in the mountains of Converse County. In Case No. S-12-0060, the Northern Laramie Range Alliance, LLC (NLRA), Northern Laramie Range Foundation (NLRF) and White Creek Ranch, LLC (“the objectors”) challenged the district court’s affirmance of the Converse County Board of County Commissioners’ (Board) decision to grant Wasatch Wind Intermountain, LLC’s (Wasatch) application for a Wind Energy Conversion System Permit (WECS permit). They also challenged the district court’s rulings that NLRA and NLRF did not have standing to appeal the Board’s decision. The Court concluded NLRA has standing, but NLRF does not. They further ruled the Board properly granted Wasatch’s application for a WECS permit. Consequently, in Case No. S-12-0060, the Court affirmed in part and reversed in part.

In the second case, Case No. S-12-0061, NLRA and NLRF (“the objectors”) challenged the district court’s affirmance of the Wyoming Department of Environmental Quality, Industrial Siting Council’s (ISC) decision to grant a state industrial siting permit for construction of the project. The Court concluded the agency acted within its authority, and there was sufficient evidence to justify its decision. Consequently, the Court affirmed the district court’s decision in Case No. S-12-0061

Issues: The issues in the Converse County case, Case No. S-12-0060, may be summarized as follows:

1. What is the appropriate standard of review of the Board’s action?

2. Do NLRF, NLRA and/or White Creek Ranch have standing to appeal?

3. Did the Board act in an arbitrary or capricious manner, abuse its discretion or otherwise act in a manner not in accordance with law when it was ruled Wasatch’s application was complete and granted it a WECS permit?
         a. Was the traffic study adequate?

         b. Was there sufficient evidence of financial assurances?

4. Were proper notifications given to nearby landowners?

5. Were the objectors denied due process of law?

The issues raised in Case No. S-12-0061 are:

1. Was it lawful for the ISC to issue the industrial siting permit subject to Special Condition #19 which required Wasatch to provide further evidence of its financial resources prior to construction of the project?

2. Did the ISC properly conclude that, with the inclusion of Special Project #19, Wasatch had met the financial assurance requirement and was entitled to a permit?

3. Were the ISC’s findings that the project will not pose a threat of serious injury to the environment or to the social and economic condition or inhabitants in the affected area supported by substantial evidence?

Holdings: In the Converse County case, Case No. S-12-0060, the Court agreed with the district court that White Creek Ranch, as an adjacent landowner, had standing to appeal the Board’s decision because it asserted the project threatened its scenic views and wildlife habitat and migration, interests which are sufficient under Northfork. The Court disagreed with the district court regarding NLRA and concluded that it had standing through its members to appeal. NLRF, however, did not have standing; its claims were simply too general and speculative to separate its asserted injury from that of the general public. The Court also held that the arbitrary and capricious standard was appropriate for the review of the Board’s decision, given the administrative process was an informal public hearing. On the merits, the Court concluded the Board did not act arbitrarily or capriciously by determining Wasatch had presented sufficient traffic study and financial assurance information. In addition, the proper notifications were provided and the objectors were not denied due process of law. The Court, therefore, affirmed in part and reversed in part the district court’s decision in Case No. S-12-0060.

In the ISC case, Case No. S-12-0061, the Court concluded the ISC was not required to rely solely on Wasatch’s individual financial resources, but could consider the financial evidence relative to its proposed investor, Edison. The ISC also properly conditioned Wasatch’s permit by requiring additional financial assurance prior to commencement of construction. The agency did not err in allowing Wasatch to evaluate different “affected areas” for the various interests identified in the statutes. Finally, the record contained substantial evidence to support the ISC’s conclusion that Wasatch’s proposed facility will not pose a threat of serious injury to the environment or to the social and economic condition or inhabitants in the affected area. The Court, therefore, affirmed the district court’s decision in Case No. S-12-0061.
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]