Powder River Basin Resource Council v. Wyoming Environmental Quality Council, No. 93-97

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before MACY; GOLDEN
• Citation: 869 P.2d 435
• Parties: POWDER RIVER BASIN RESOURCE COUNCIL, Appellant (Petitioner), v. WYOMING ENVIRONMENTAL QUALITY COUNCIL, Appellee (Respondent).
• Decision Date: 18 February 1994
• Docket Number: No. 93-97

Page 435

869 P.2d 435 POWDER RIVER BASIN RESOURCE COUNCIL, Appellant (Petitioner),
v.
WYOMING ENVIRONMENTAL QUALITY COUNCIL, Appellee (Respondent). No. 93-97. Supreme Court of Wyoming. Feb. 18, 1994.

Maynard D. Grant of Grant & Newcomb, Cheyenne, Reed Zars, Denver, CO, for appellant.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Deputy Atty. Gen., Thomas A. Roan, Asst. Atty. Gen., Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

Page 436

GOLDEN, Justice.

Appellants Powder River Basin Resource Council (PRBRC) and the Wyoming Environmental Quality Council (EQC) jointly petitioned for certification of this appeal pursuant to WYO.R.APP.P. 12.09. We are asked to resolve whether the Wyoming Environmental Quality Act authorizes attorney fees against a government agency. EQC affirmed a decision by the Department of Environmental Quality (DEQ) denying attorney fees to PRBRC.

We reverse and remand.

Appellant phrases the issue as:

[Whether] the Wyoming Environmental Quality Council ("EQC"), as a matter of law, incorrectly upheld the decision of the Wyoming Department of Environmental Quality ("DEQ") that found the agency had no authority to provide attorney's fees to citizen-group Powder River Basin Resource Council ("Powder River") after Powder River substantially prevailed in its administrative action against DEQ.

EQC presented four issues for review:

I. Whether the Environmental Quality Council's decision to deny the payment of attorneys fees because there were no rules to authorize payment was arbitrary, capricious or an abuse of discretion, or otherwise not in accordance with law.

II. Whether the Environmental Quality Council's decision to deny payment of attorneys fees to the Powder River Basin Resource Council should be affirmed because the award of attorneys fees for the kind of proceeding in which the Powder River Basin Resource Council participated is not authorized by Wyoming statute.

III. Whether the payment of attorneys fees, absent express statutory or regulatory authority, would have resulted in the abrogation of the state's sovereign immunity.

IV. Whether the Powder River Basin Resource Council waived its claim to attorneys fees when it settled the matter and dismissed its objection to the mine permit renewal.

FACTS

In February of 1991, a nonprofit citizen-conservation organization, PRBRC, challenged a DEQ decision which renewed a permit for Thunder Basin Coal Company (TBCC) to conduct strip mining operations at its Black Thunder Mine. At issue was whether DEQ could lawfully approve this particular permit renewal without providing the notice and opportunity for public participation which the law required of significant revisions to a permit. TBCC had proposed adding a large permanent water impoundment to the original permit's reclamation plan. DEQ had approved the proposal despite the fact that final design criteria had not been established for the impoundment. EQC scheduled a contested case hearing on PRBRC's objection to DEQ's action for March 12, 1991. However, negotiations were held and, on March 11, 1991, DEQ, TBCC, and PRBRC entered into a settlement agreement. The settlement agreement required DEQ to withdraw approval of the permanent impoundment that, in concept, had previously been approved. Further, the agreement required DEQ to afford the public proper notice of all future changes to a proposed mining operation. On April 24, 1991, the Council entered an order dismissing the contested case hearing because the dispute had been settled.

In June of 1991, counsel for PRBRC petitioned DEQ to pay its attorney fees under WYO.STAT. § 35-11-437(f) (1988). DEQ's initial response to the petition was to recommend that DEQ approve payment of the attorney fees. The Wyoming Mining Association (WMA) and TBCC objected to any payment of attorney fees under the act. WMA was permitted to intervene and TBCC was permitted to continue as a party and both submitted numerous memoranda, letters, and briefs opposing payment of the attorney fees. DEQ permitted WMA and TBCC to present arguments at an informal conference on September 30, 1991. Their primary arguments were that the statute did not authorize attorney fees since, in their view, permit review proceedings were not enforcement actions and the rules did not permit attorney fees against the state.

Page 437

In his conclusions of law, the DEQ director rejected contentions that the "administrative proceeding" language of WYO.STAT. § 35-11-437(f) only applied to enforcement actions. The director concluded that PRBRC's objections and subsequent settlement with all parties constituted an administrative proceeding. The director concluded, as a matter of law, that the rules did not address an award in this type of case, and it was unclear whether the statute directs a decision contrary to the rules. The director denied an award of attorney fees to PRBRC. EQC affirmed the director's decision, and this appeal followed.

DISCUSSION

PRBRC contends that the sum and substance of the DEQ director's decision which the EQC affirmed is that attorney fees were denied because agency rules were silent on the matter. We agree that the DEQ director denied attorney fees because he discerned from EQC's statement of principal reasons for adoption filed with the current rules an intent by EQC to adopt rules which restricted awards from DEQ. It was the director's specific decision that:

The argument can be made that since the rules address Environmental Quality Council actions and the statute states that awards are to be determined by the Director that either the rules do not restrict an award not addressed by the rule or that the rules are not consistent with the law and I may ignore them. This I cannot do. The intent of the Environmental Quality Council is clear as outlined in the Statement of Reasons. The rules were appropriately adopted with full public participation. I cannot and will not presume to make a decision which contradicts properly adopted rules. While I may or may not agree with some decisions of the Environmental Quality Council, unless their decision is clearly illegal on its face, I am clearly bound unless they are overturned by a higher decision making authority. In this case, while the argument can be made that the statute directs a decision contrary to the rules, I do not believe that is...