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Wyoming Outdoor Council v. Wyoming Dep't of Environmental Quality

February 25, 2010


Appeal from the District Court of Laramie County The Honorable Edward L. Grant, Judge.

The opinion of the court was delivered by: Kite, Justice.

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

[¶1] After the Wyoming Environmental Quality Council (EQC) adopted the Department of Environmental Quality's (DEQ) proposed revisions to Chapter 1 of the Wyoming Water Quality Rules and Regulations (WWQR&R), the Wyoming Outdoor Council and the Powder River Basin Resource Council (Petitioners) filed a petition challenging the new rules. The Petitioners named the DEQ as the respondent. Finding that the proper party was the EQC, which the petition did not name, the district court dismissed the petition for lack of jurisdiction. The Petitioners appeal, claiming the district court erred in dismissing the petition. We reverse.


[¶2] The Petitioners state the issues for this Court's determination as follows:

1. In a case brought pursuant to the Wyoming Administrative Procedure Act to challenge the promulgation of rules and regulations, is the proper party to be named in the petition for review the agency, the agency's hearing body, or both?

2. Where a petition for review of agency rules and regulations is brought, and the agency itself is named as a party, but the agency's hearing body is not named, is it proper to dismiss the petition for lack of jurisdiction, or rather, is it proper to either allow the joinder of the hearing body as a party or acknowledge that the real party in interest has been named, and refuse to dismiss the case?

The DEQ asserts the district court acted properly in dismissing the petition on the ground that it did not name the EQC as respondent. Marathon Oil Company and the Petroleum Association of Wyoming (Intervenors), whom the district court allowed to intervene in the action, agree that the petition was properly dismissed and contend that joinder of the EQC would not have been proper.


[¶3] On December 20, 2006, the DEQ filed a notice of intended rulemaking with the Wyoming Secretary of State's Office in accordance with Wyo. Stat. Ann. § 16-3-103(a) (LexisNexis 2009). On the same date, the DEQ provided copies of the proposed rules to the Legislative Service Office (LSO), Attorney General, and the Governor. The DEQ also provided notice of the proposed rule changes to interested members of the public. The Petitioners and others submitted written comments on the proposed changes and a public hearing was held on February 15 and 16, 2007. On February 26, 2007, the DEQ sent the final rules to the Attorney General's Office for the Governor's signature and filing with the Secretary of State. On April 25, 2007, the Governor approved and signed the rules and they were filed with the Secretary of State.

[¶4] The Petitioners filed their petition for judicial review of the rules on May 29, 2007. They claimed the adoption of the rules was arbitrary, capricious, an abuse of discretion, not in accordance with federal and state law, unsupported by substantial evidence and otherwise in violation of Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2009). An understanding of the grounds for their claim is not necessary in order to decide the issues presented on appeal. Suffice it to say that they asserted the new rules violated the Clean Water Act, 33 U.S.C. § 1251 et seq. and federal regulations enacted pursuant thereto in that they allowed the DEQ to establish new standards for newly created classes of water, downgraded a number of bodies of water in Wyoming from primary contact recreational waters to secondary contact recreational waters without conducting required analyses, and provided for variances from water quality standards. They further alleged the DEQ violated the Wyoming Administrative Procedure Act by adopting policies that fit the definition of rules without following rulemaking procedures and acted arbitrarily by abandoning the fecal coliform standard for water quality and removing chloride protection standards for Class 3 waters in Wyoming.

[¶5] Intervenors filed their motions to intervene, which the district court granted. The parties filed briefs. Among the issues raised was whether the petition should be dismissed for failure to name the EQC as a party. By order dated February 2, 2009, the district court dismissed the petition for lack of jurisdiction because the EQC was not named as a party. The Petitioners timely filed a notice of appeal.


[¶6] Pursuant to W.R.A.P 12.11, an aggrieved party may obtain review of a district court's final judgment by appeal to this Court. We accord no deference to, and are not bound by, a district court's decision on a question of law. State Bd. of Control v. Johnson Ranches, Inc., 605 P.2d 367, 373 (Wyo. 1980). The question of whether a district court has jurisdiction to review a matter is one of law, which we review de novo. Douglass v. Wyoming Dep't of Transp., 2008 WY 77, ¶ 9, 187 P.3d 850, 853 (Wyo. 2008).


[¶7] The Petitioners challenge the district court's conclusion that the DEQ was not the proper party to be named as the respondent and they should have named instead the EQC. Petitioners assert that the DEQ was the proper party because the rules they were challenging were those of the DEQ, not the EQC. They further contend that the EQC is merely an adjudicatory panel of the DEQ with no stake in the administration or enforcement of the rules and no legal interest in maintaining its decision to promulgate the rules the DEQ recommended. The DEQ and Intervenors respond in their written arguments to this Court that the district court correctly ruled that the EQC was the proper party to be named in the petition because it, not the DEQ, promulgated the rules the Petitioners were challenging and thereby created the harm about which Petitioners complained. In its oral argument to this Court, however, the DEQ essentially conceded that it was a proper party to the appeal, would not have felt comfortable moving to dismiss the petition as to itself, and would not have objected to joinder of the EQC. Despite the DEQ's concessions, we consider the question of whether the district court erred in concluding it lacked jurisdiction because the petition did not name the EQC. In resolving this issue, we look first to the legislation creating these entities.

[¶8] The DEQ and the EQC were created by the Wyoming Environmental Quality Act, Wyo. Stat. Ann. § 35-11-101 through 35-11-1904 (LexisNexis 2009). The DEQ is a department within the executive branch and consists of six divisions, including the water quality division. Sections 35-11-104 and 35-11-105. The governor, with the advice and consent of the senate, appoints the director of the DEQ. Among the director's duties is to perform "any and all acts necessary to promulgate, administer and enforce the provisions of [the Environmental Quality Act] and any rules . . . adopted, established or issued thereunder . . . ." Section 35-11-109(a)(i). The director also appoints administrators for each of the divisions. Section 35-11-108. The division administrators, under the control and supervision of the director, are charged with enforcing and administering the Environmental Quality Act and the rules, regulations and standards promulgated under the Act. ...

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