N. Laramie Range Found. v. Converse Cnty. Bd. of Cnty. Comm'rs

• Decision Date: 14 December 2012
• Docket Number: Nos. S–12–0060,S–12–0061.,s. S–12–0060
• Citation: 290 P.3d 1063
• Parties: NORTHERN LARAMIE RANGE FOUNDATION, a Wyoming non-profit corporation, Northern Laramie Range Alliance, LLC, a Wyoming limited liability company, and White Creek Ranch, LLC, a Wyoming limited liability company, Appellants (Petitioners), v. CONVERSE COUNTY BOARD OF COUNTY COMMISSIONERS, and Wasatch Wind Intermountain, LLC d/b/a Pioneer Windpark I, LLC, and Pioneer Windpark II, LLC, Appellees (Respondents). Northern Laramie Range Foundation, a Wyoming non-profit corporation, and Northern Laramie Range Alliance, LLC, a Wyoming limited liability company, Appellants (Petitioners), 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, Appellees (Respondents).
• Court: Wyoming Supreme Court

290 P.3d 1063

NORTHERN LARAMIE RANGE FOUNDATION, a Wyoming non-profit corporation, Northern Laramie Range Alliance, LLC, a Wyoming limited liability company, and White Creek Ranch, LLC, a Wyoming limited liability company, Appellants (Petitioners),

v.CONVERSE COUNTY BOARD OF COUNTY COMMISSIONERS, and Wasatch Wind Intermountain, LLC d/b/a Pioneer Windpark I, LLC, and Pioneer Windpark II, LLC, Appellees (Respondents).

Northern Laramie Range Foundation, a Wyoming non-profit corporation, and Northern Laramie Range Alliance, LLC, a Wyoming limited liability company, Appellants (Petitioners),

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, Appellees (Respondents).

Nos. S–12–0060, S–12–0061.

Supreme Court of Wyoming.

Dec. 14, 2012.

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

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 by Mr. Esch.

Before KITE, C.J., and GOLDEN ^*, HILL, VOIGT, and BURKE, JJ.

KITE, Chief Justice.

[¶ 1] This appeal involves 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”) challenge 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 challenge the district court's rulings that NLRA and NLRF did not have standing to appeal the Board's decision. We conclude NLRA has standing, but NLRF does not. We further rule the Board properly granted Wasatch's application for a WECS permit. Consequently, in Case No. S–12–0060, we affirm in part and reverse in part.

[¶ 2] In the second case, Case No. S–12–0061, NLRA and NLRF (“the objectors”) challenge 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. We conclude the agency acted within its authority, and there is sufficient evidence to justify its decision. Consequently, we affirm the district court's decision in Case No. S–12–0061.¹

ISSUES

[¶ 3] 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 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?

[¶ 4] 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 Condition # 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?

FACTS

[¶ 5] These consolidated cases involve two different permits issued to Wasatch allowing it to construct and operate a two-phase wind energy project in the Northern Laramie mountain range near Glenrock in Converse County, Wyoming. The project, called Pioneer Wind Park I and II, includes sixty-two wind turbines, together with support structures and transmission lines, and is to be constructed entirely on private land leased by Wasatch.

[¶ 6] In Case No. S–12–0060, NLRA, NLRF and White Creek Ranch challenge the Board's decision granting Wasatch a WECS permit. The Board held a public hearing on Wasatch's application on April 11, 2011, considered written comments and made its decision at a second public hearing on May 3, 2011. The objectors petitioned the district court for review of the Board's decision. The district court ruled that neither NLRA nor NLRF had standing to appeal, but found that White Creek Ranch did, and, after considering the merits, the district court affirmed the Board's decision.

[¶ 7] In Case No. S–12–0061, NLRA and NLRF challenge the ISC's order granting Wasatch a state industrial siting permit for construction and operation of the wind energy project. Wasatch filed its application for a permit with the ISD on February 2, 2011.² The application process was very complex and included information about numerous areas of potential concern, including environment, wildlife, impacts on communities and labor resources, tax projections, financial resources, and others. The ISD reviewed the application and identified some deficiencies, to which Wasatch responded. The ISD thereafter determined that Wasatch's application was complete, and the ISC considered it at a contested case hearing held over several days in May and June 2011. In addition to taking sworn testimony, the ISC also received and considered limited appearance statements from audience members. The ISC granted Wasatch's application and permitted the project; however, it included numerous conditions, some of which had to be fulfilled prior to the commencement of construction. NLRA and NLRF filed a petition for review of the ISC decision with the district court and that court affirmed.

[¶ 8] Both district court decisions were appealed to this Court and we consolidated them for review and decision. Additional facts will be described in our analysis of the issues.

STANDARD OF REVIEW

[¶ 9] The two cases on appeal come to us from different types of administrative proceedings and that difference affects the standard of review we apply. For both cases, our review is governed by Wyo. Stat. Ann. § 16–3–114(c) (LexisNexis 2011):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶ 10] The Converse County permit case, No. S–12–0060, proceeded as a public hearing in accordance with Wyo. Stat. Ann. § 18–5–501 through § 18–5–513 (LexisNexis 2010) (statutes pertaining to county permitting of wind facilities) and the Converse County Wind Energy Siting Regulations. In accordance with § 18–5–506 and the county regulations, the proceeding was not a formal trial-type or contested case hearing, but an informal hearing where public comment was solicited. The witnesses were not sworn, comment times were limited and there was no typical cross examination or other indicia of a true adversarial process. After the hearing, the Board issued findings and a decision granting the WECS permit. See § 18–5–507. Because of the informal nature of the hearing, the district court applied the arbitrary and capricious standard of review rather than the substantial evidence standard applicable to factual findings made after formal contested case hearings under Dale v. S & S Builders, LLC, 2008 WY 84, 188 P.3d 554 (Wyo.2008).

[¶ 11] The objectors claim the district court erred by using the arbitrary and capricious standard instead of the substantial evidence standard. In Dale, we provided a comprehensive review and reiteration of the standards of review for administrative decisions, specifically explaining the differences between the substantial evidence and arbitrary and capricious standards. Our task in applying the substantial evidence test is to

examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions.

Id., ¶ 11, 188 P.3d at 558 (citations omitted). Further, when conducting a substantial evidence review of the record,

the deference that...