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]

Summary 2012 WY 135

Summary of Decision October 19, 2012


Justice Burke delivered the opinion for the Court. Affirmed in part. Reversed in part.

Case Names: THE WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY and YATES PETROLEUM CORPORATION AND MARATHON OIL COMPANY v. WYOMING OUTDOOR COUNCIL;

YATES PETROLEUM CORPORATION AND MARATHON OIL COMPANY v. WYOMING OUTDOOR COUNCIL and THE WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY

Docket Number: S-12-0002, S-12-0003

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

Appeal from the District Court of Laramie County, Honorable Thomas T.C. Campbell, Judge.

Representing Wyoming Department of Environmental Quality: Gregory A. Phillips, Attorney General; Jay A. Jerde, Deputy Attorney General; Michael Barrash, Senior Assistant Attorney General; Christopher M. Brown, Senior Assistant Attorney General. Argument by Mr. Barrash and Mr. Jerde.

Representing Yates Petroleum and Marathon Oil Company: Eric L. Hiser and Matthew Joy, Jorden Bischoff & Hiser, PLC, Scottsdale, Arizona. Argument by Mr. Joy.

Representing Wyoming Outdoor Council: Steve Jones, Jones and Maxon Law Office, Jackson, Wyoming.

Date of Decision: October 19, 2012

Facts: This appeal involved the issuance by the Wyoming Department of Environmental Quality (DEQ) of two general permits for the discharge of produced water from coal bed methane operations in northeastern Wyoming. Yates Petroleum Corporation and Marathon Oil Company (Yates and Marathon) appealed the DEQ’s decision to the Environmental Quality Council (EQC), challenging certain conditions of the two general permits. The Wyoming Outdoor Council (WOC) also sought EQC review of the DEQ’s decision to issue the general permits.

WOC claimed that general permits were rules, and had to be promulgated through the rulemaking procedures set forth in the Wyoming Administrative Procedure Act. The EQC rejected WOC’s claim, and WOC sought judicial review of that decision. The district court reversed the EQC, determining that DEQ was required to promulgate the general permits as rules. Because DEQ had not followed the statutory rulemaking procedures, the district court ruled that the general permits were void.

The district court also rejected the argument by Yates and Marathon that WOC was not entitled to seek EQC review of the DEQ’s decision to issue the general permits, but was limited to judicial review. The district court ruled that the Wyoming Environmental Quality Act did allow WOC to seek administrative review by the EQC. Yates and Marathon appealed.

Issues: The parties present a variety of statements of the issues on appeal. We think the issues are appropriately stated as follows:

Whether DEQ must employ the statutory rulemaking procedures for the issuance of general permits.

Whether WOC was entitled to administrative review by the EQC of DEQ’s decision to issue the general permits.

Holdings: The Court reversed the district court ruling that the DEQ was required to promulgate general permits as administrative rules, because they agreed with the EQC’s decision that the two general permits in question were issued following appropriate procedures. The Court affirmed the district court’s ruling that WOC was entitled to EQC review of the DEQ’s decision to issue these general permits.

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]

Summary 2010 WY 25

Summary of Decision issued March 5, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Powder River Basin Resource Council v. Wyo. DEQ

Citation: 2010 WY 25

Docket Number: S-09-0037

Rule 12.09(b) Certification from the District court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Powder River Basin Resource Council and Sierra Club: James S. Angell and Robin Cooley of Earthjustice, Denver, CO.

Representing Appellee Wyo. DEQ: Bruce A. Salzburg, Attorney General; Jay A. Jerde, Deputy Attorney General; Nancy E. Vehr, Senior Assistant Attorney General; Lucas J. Esch, Assistant Attorney General.

Representing Appellee Basin Electric Power Coop. Inc.: Patrick R. Day and Mark R. Ruppert of Holland & Hart LLP, Cheyenne, WY.

Representing Amicus Curiae Northern Cheyenne Tribe: John C. Schumacher, Riverton, WY; Brian C. Gruber of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA.

Facts/Discussion: The DEQ issued an air quality permit to Basin Electric for a new coal-fired electric power plant, called Dry Fork Station, to be built in the Powder River Basin. The Powder River Basin Resource Council and the Sierra Club (PRBRC) challenged the air quality permit before the Wyoming Environmental Quality Council (Council). After hearings on the PRBRC’s different claims, the Council upheld the DEQ’s issuance of the permit. The PRBRC appealed to the district court which certified directly to the Court. The Northern Cheyenne Tribe was granted leave to file an amicus curiae brief.
The DEQ administers and enforces the Wyoming Environmental Quality Act. The Act is responsible for the air quality program and operates under Wyoming Air Quality Standards and Regulations. The Court defers to an agency’s interpretation of its own rules and regulations unless that interpretation is clearly erroneous or inconsistent with the plain language of the rules.

Increment protection: The PRBRC contends that because the second computer model run indicated exceedances of the increment, the DEQ could not legally issue the air quality permit for the Dry Fork Station. The DEQ and Basin Electric point out that in the second run using maximum actual emissions, Dry Fork’s contributions to the increment exceedances were so exceedingly small that the DEQ treated them as non-existent. DEQ and Basin Electric assert the agency had discretion to determine that Dry Fork would not cause or contribute to any actual exceedances of the increment. The PRBRC’s position was based on the language of the regulation. DEQ stated it was allowed a certain amount of flexibility in administering the air quality program and that it properly exercised its discretion to overlook the modeled increment exceedances because Dry Fork’s contributions were well below the Significant Impact Levels. The Court disagreed with the Council’s conclusion that the DEQ properly used Significant Impact Levels to determine that the Dry Fork Station would not cause or contribute to increment exceedances on the Reservation but affirmed on another basis. The regulation provides that the permit shall be issued only if the predicted impact is less than the increment. In applying its experience and scientific reason, the DEQ exercised its discretion to make a sound prediction of whether the impact of emissions from a proposed source would be less than the increment. Using the computer model as a tool to make predictions, the DEQ essentially decided that the predicted impacts of emissions from the Dry Fork Station would be less than the maximum allowable increment.
BACT – Control technology versus redesign: The Court agreed that BACT analysis did not have to include options that would require the proposed source to redefine its basic design. The record contained substantial evidence to support the Council’s findings that imposing supercritical boiler technology on the Dry Fork Station would require extensive changes to its basic design. These determinations lead to the conclusion that the DEQ was not required by the BACT regulations to consider supercritical boiler technology as an alternative to Basin Electric’s proposed subcritical boiler technology.
Greenhouse gas emissions: The Dry Fork Station is predicted to emit 3.7 million tons per year of carbon dioxide along with lesser amounts of other gases that the PRBRC characterizes as greenhouse gases. The PRBRC asserted that the DEQ was required to impose BACT requirements forcing Dry Fork to control its emotions of carbon dioxide. PRBRC maintains that carbon dioxide is subject to BACT analysis and control because it is subject to regulation under the federal Clean Air Act. The Court considered the issue solely under federal law. There are no limits, standards or control requirements for carbon dioxide. The EPA requires only monitoring and reporting for carbon dioxide emissions. In Deseret, the EPA stated that it had historically interpreted the term “subject to regulation” to include only those air pollutants subject to statutory or regulatory emissions controls, not pollutants such as carbon dioxide that are subject only to monitoring and reporting requirements. The Deseret decision established only that carbon dioxide is potentially subject to regulation at some future time. Shortly after Deseret was published, the EPA issued a memo reaffirming its historical interpretation that the term “subject to regulation” includes those pollutants for which a statute or regulation requires actual control of emissions of that pollutant. While PRBRC made a persuasive argument that carbon dioxide may be regulated in the future, it has not shown that it was subject to regulation when the Dry Fork permit was pending. The Court agreed with the DEQ and Basin Electric that the DEQ was not required to subject the Dry Fork Station’s carbon dioxide emissions to BACT analysis and control.

Conclusion: The Court affirmed the Council’s decision that the DEQ properly issued an air quality permit to Basin Electric for Dry Fork Station.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ybks56m .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 122

Summary of Decision issued October 6, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Anderson v. Bd. of County Comm’r of Teton County, WY

Citation: 2009 WY 122

Docket Number: S-08-0102

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Appellants Anderson: Andrea L. Richard and Jennifer A. Golden, the Richard Law Firm, PC, Jackson, Wyoming.

Representing Appellee, Board of County Commissioners: James L. Radda, Deputy County Attorney, Teton County, Jackson, Wyoming.

Representing Appellees Baltensperger: William R. Fix, William R. Fix, PC, Jackson, Wyoming.

Facts/Discussion: The Baltenspergers applied for and were granted the necessary permits allowing them to construct a barn/equestrian center on their property in Teton County, Wyoming. The Andersons objected to the construction permits and appealed to the Board. After the Board affirmed the grant of the permits, the Andersons petitioned the district court to review the final administrative action. The district court affirmed the Board’s decision.

Accessory residential structure: The Board determined that the barn was an accessory residential structure because it was incidental, subordinate or secondary to the residence on Lot 4A and devoted primarily to the residence and that it did not change the character of the premises. The Andersons claim the record does not support that finding primarily because the proposed barn at 6,750 sq. ft. will be much larger than the residence at 1,056 sq. ft. The Andersons pointed to no authority that stated the barn must be smaller than the residence in order for its use to be considered subordinate to the residential use of the premises. The record was clear that the residential structure was in place when the Baltenspergers applied for the construction permits.
Whether approving the construction permits violated the LDRs: The Andersons relied upon Section 5120.N.1 of the LDRs to support their contention that Teton County was required to impose restrictions on the Baltenspergers’ development to minimize adverse impacts on the neighborhood. The Court stated that the Section provides authority to Teton County to impose restrictions or conditions upon approved permits, but does not mandate it. Additionally, the LDRs only require the County to assess potential injury to the neighborhood when considering applications for variances but not when considering applications for building permits or Grading and Erosion Control (GEC) permits as in the instant case. The Board was correct when it determined that consideration of private covenants was not within the scope of the LDRs and that Teton County was correct in not imposing restrictions based upon the alleged violations of private covenants.

Conclusion: The Court would not consider the Andersons’ claim that the approval of the construction permits was based on conclusory findings as that issue was not adequately raised below. After reviewing the record, the Court found substantial evidence to support the Board’s finding that the center was an accessory residential structure. Additionally, Teton County’s approval of the Building Permit and the GEC Permit did not violate the LDRs and was in accordance with law.

Affirmed.

D.J. Waldrip delivered the decision.

Link: http://tinyurl.com/ydvwc8f .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]