Casper Aquifer lawsuit headed to Wyoming Supreme Court

LARAMIE — A lawsuit contesting the county’s jurisdiction over zoning within the Casper Aquifer area has been filed with the Wyoming Supreme Court.
 
The original petition was filed in Second Judicial District Court in March 2023 by Warren Livestock, LLC, and Thomas and Karen Bienz on behalf of about 74 personal and corporate landowners and citizens against the Albany County Board of Commissioners.
 
The notice of appeal to the Supreme Court was filed on Feb. 1. Both original petitioners filed the notice of appeal.
 
The original legal action claimed that the county board acted arbitrarily in excess of its authority when it decided to amend regulations to the Aquifer Protection Overlay Zone (APOZ). It also claimed that the board took the action despite lack of reliable data showing any amendments were necessary.
 
The petitioners took issue with seven actions by the county commission, including acceptance of a new boundary for the APOZ; setting a minimum lot size of 35 acres and one dwelling per 35 acres for new developments within the zone; amending requirements for site-specific investigations of property within the APOZ; and amending provisions for on-site wastewater treatment design standards.
 
Both sets of petitioners said the county illegally intruded upon the Wyoming Department of Environmental Quality’s responsibility for regulating groundwater quality.
 
The county argued that zoning is a legislative act afforded to both cities and counties. Legislative actions such as zoning can’t be reviewed by the court, it said.
 
The county cited a Wyoming statute that gave the county jurisdiction: “To promote the public health, safety, morals and general welfare of the county. Each board of county commissioners may regulate and restrict the location and use of buildings and structures, and the use, condition of use or occupancy of lands for residence, recreation, agriculture, industry, commerce, public use and other purposes in the unincorporated area of the county.”
 
On Dec. 13, the district court ruled in favor of Albany County, and the petition was dismissed. The court stated its decision was based only on whether the court has jurisdiction in the case.
 
In its decision, the court said it must “Conclude that the Board’s adoption of the APOZ amendments was a delegated and legislative action, and therefore, such legislative action is not reviewable under WAPA (Wyoming Administrative Procedures Act).”
 
The petitioners are now asking the Supreme Court to overturn that decision.
 
Daniel Frank, attorney for the Bienzes and their co-petitioners, said in an email, “The district court determined it did not have jurisdiction to consider the substance of my clients’ arguments because the Board of County Commissioners made a zoning decision, which some previous Wyoming cases classified as ‘legislative’ decisions.
 
“In my clients’ view, the Board was acting as a state agency engaged in rulemaking. The Board’s amendments to the Aquifer Protection Overlay Zone was the adoption of rules and regulations, disguised as zoning regulations, to further restrict land use to allegedly prevent degradation of water quality in the aquifer,” Frank wrote.
 
He said that the rules to prevent damage to the aquifer are already in place through Wyoming DEQ, which requires permits if there will be a discharge of pollutant to groundwater.
 
Pete Gosar, Albany County Commission chairman, said he is confident that the county will win again at the Supreme Court level.
 
“We prevailed in district court,” Gosar said. “I’m very confident that we followed the rules and regulations, and our decisions are based on science, and we’ll continue to pursue that. This is the last stop, at the Supreme Court.
 
“The Casper Aquifer plan has been in place since 1992, I believe, so it seems maybe that case should have been made a long time ago.  We are 30 years down the road,” he said. “Our attorneys feel we were well within our authority: the district court felt we were well within our authority with the aquifer protection plan.”
 
 
Gosar said the maps and possible changes to regulations within the zone were made after “multiple, multiple, multiple comments with the county commission, county planner and planning and zoning. There were years of public input, and you want to be really cognizant of that; really ask people for their opinion and consider it.”
 
He thanked everyone who had input into the plan, saying, “More people makes a richer solution set. And that’s helpful as a commissioner.”
 
Both city of Laramie and Albany County planners have said they plan to look at regulations within the overlay zone this spring.
 
Additional rules may specify the size of parcels and how many dwellings can be placed on a parcel, as well as new rules for septic systems.
 
Gosar anticipates that there will be some disagreement when the rules are presented for review, but he said the plans have followed the science and the best information available at the time.
 
This story was published on February 10, 2024.