Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Northern Laramie Range Foundation v. Converse County Board of County Commissioners

December 14, 2012

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).



Appeal from the District Court of Converse County The Honorable Keith G. Kautz, Judge

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

Before KITE, C.J., and GOLDEN*fn1 , HILL, VOIGT, and BURKE, JJ.

[¶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. *fn2

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.*fn3

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 normally is accorded the findings of fact by a trial court is extended to the administrative agency, and we do not adjust the decision of the agency unless it is clearly contrary to the overwhelming weight of the evidence on record. This is so because, in such an instance, the administrative body is the trier of fact and has the duty to weigh the evidence and determine the credibility of witnesses.

Id., ¶ 11, 188 P.3d at 558-59.

[¶12] The arbitrary and capricious standard also requires the reviewing court to consider the entire agency record to determine whether it reasonably could have made its findings and order based upon all the evidence before it. Id., ¶ 12, 188 P.3d at 559, citing Newman v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 19, 49 P.3d 163, 170 (Wyo. 2002). However, "the arbitrary and capricious standard is more lenient and deferential to the agency than the substantial evidence standard because 'it requires only that there be a rational basis for the agency's decision.'" Id.

[¶13] Our primary focus in Dale was on determining the appropriate standard for reviewing an agency's factual findings after a contested case hearing. We ruled that, because of the confusion that had inured from using both the substantial evidence and arbitrary and capricious standards for reviewing evidentiary issues in contested case hearings, we would thereafter confine our review of the evidence to the substantial evidence standard. Dale, ¶¶ 16-22, 188 P.3d at 559-61. Nevertheless, we also addressed the proper use of the arbitrary and capricious standard of review and discussed its history under the Federal Administrative Procedure Act:

The judicial review provision of the federal Administrative Procedures Act, 5 U.S.C. § 706, is similar to § 16--3--114(c). Historically under the federal act, the arbitrary and capricious standard was used to review informal adjudications. 33 Fed. Prac. & Proc., Judicial Review § 8334. Friends of the Bow v. Thompson, 124 F.3d 1210, 1214--17 (10th Cir.1997), demonstrates the traditional use of the arbitrary and capricious standard of review in adjudicative contexts. In that case, the Tenth Circuit Court of Appeals applied the arbitrary and capricious standard of review in 5 U.S.C. § 706 to review an agency's decision after an informal proceeding involving a timber sale. See also, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). On the other hand, the substantial evidence standard has traditionally been applied to review evidentiary findings after formal, trial-type agency proceedings. 33 Fed. Prac. & Proc., Judicial Review §§ 8333.

Id., ¶ 20, 188 P.3d at 560-61 (footnote omitted).

[¶14] As referenced in Dale, the Federal Practice and Procedure treatise explains the rationale behind applying separate standards of review to agency actions arising from different types of agency proceedings. The treatise refers to substantial evidence review as "reasonableness review" and explains that "[r]easonableness review is appropriate any time an administrative program requires a high probability of correctness but cannot tolerate judicial duplication of administrative decision making. Traditionally, this combination exists when the decision was made through a formal, trial-like proceeding." 33 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Judicial Review § 8333 (2006). The arbitrary and capricious standard of review applies to those "administrative schemes in which the courts are to have a lesser role," like when reviewing a decision after an informal agency hearing. Id., § 8334.

[¶15] Two federal cases, Friends of the Bow v. Thompson, 124 F.3d 1210 (10th Cir. 1997), and Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 135 (1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977), demonstrate the applicability of the arbitrary and capricious standard to informal agency decision making. In Friends of the Bow, 124 F.3d at 1214-17, the Tenth Circuit Court of Appeals applied the arbitrary and capricious standard to review a U.S. Forest Service decision allowing a timber sale on national forest lands. That decision was made after an informal proceeding involving agency analysis of a list of alternative actions. Similarly, Volpe involved an informal adjudication by the Secretary of Transportation allowing federal funding for construction of a highway through Overton Park in Memphis, Tennessee. The only hearing required by the applicable statutes was conducted by local officials to inform the public about the proposed project and elicit community opinion on the design and route. The United States Supreme Court ruled that the absence of a formal adjudicatory hearing dictated that substantial evidence review was not required and the arbitrary and capricious standard of review was appropriate. Volpe, 401 U.S. at 414-15, 91 S. Ct. at 822.

[¶16] The objectors direct us to Gilbert v. Bd. of County Comm'rs of Park County, 2010 WY 68, 232 P.3d 17 (Wyo. 2010), as support for their contention that the substantial evidence standard should apply to the Board's findings in this case even though the hearing was not conducted as a contested case. In Gilbert, Park County adopted revised zoning regulations which provided that earlier land use regulations, including allowing light industrial/manufacturing in certain areas, would expire at a certain time unless particular conditions were met. Gilbert requested a variance to maintain the option of light industrial/manufacturing use on his property. The planning coordinator determined that Gilbert's designation was subject to expiration, apparently rejecting the variance request. The matter proceeded to the Park County Planning and Zoning Commission which held a public hearing and recommended to the board of county commissioners that the variance request be denied. Id., ¶¶ 4-6, 232 P.3d at 19-20.

[¶17] The board also held public hearings on the matter, which were documented by tape recordings and board minutes. At the hearings, the board heard the recommendations of the commission, Gilbert's comments, and took oral and written statements from neighbors and a former owner of the property. The board denied the variance request in a written resolution which included findings of fact and conclusions of law. On appeal, the district court ordered a partial remand to "provide a record of the

[b]oard's deliberation in denying the variance request." The board then issued a second resolution again denying Gilbert's application. Id., ¶¶ 6-8, 232 P.3d at 19-20. On appeal to this Court, Gilbert argued that the case had morphed into a contested case hearing and he was, therefore, entitled to all of the procedural protections required in such a hearing. Id., ¶ 13, 232 P.3d at 25. We determined the hearing was not a "de facto" contested case hearing because the proceeding was not conducted as such and the applicant did not have a vested property right in the variance. Id., ¶ 14, 232 P.3d at 25.

[¶18] In support of their argument in this case, the objectors rely upon our application of the substantial evidence standard in Gilbert to review the board's factual determinations as to whether Gilbert had met the variance standards. Without discussing in detail the appropriate standard of review, we applied both the substantial evidence and arbitrary and capricious standards to the same factual findings. Id., ¶¶ 21-22, 232 P.3d at 30-31. The determination of which standard of review applied was not directly at issue in Gilbert, and the application of both standards of review simply showed that under either the agency's decision was appropriate. Consequently, Gilbert does not mandate that we apply the substantial evidence standard of review to decisions made after informal non-contested case agency proceedings. Given the issue is directly presented in this case and Dale, federal precedent and learned treatises all indicate the arbitrary and capricious standard of review applies to administrative proceedings which were not conducted as trial-type adjudications or contested cases, we agree with the district court that the arbitrary and capricious standard of review is appropriate to review Converse County's permit decision.

[¶19] The ISC appeal, Case No. S-12-0061, involved a conventional contested case proceeding. As such, we apply the substantial evidence standard of review to the agency's evidentiary determinations.

When the burdened party prevailed before the agency, we will determine if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Importantly, our review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it.

Dale, ¶ 22, 188 P.3d at 561 (citations omitted).

[¶20] Even in contested case proceedings, the arbitrary and capricious standard remains available as a "'safety net' to catch agency action which prejudices a party's substantial rights or which may be contrary to the other W.A.P.A. review standards yet is not easily categorized or fit to any one particular standard." Dale, ¶ 23, 188 P.3d at 561, quoting Newman, ¶ 23, 49 P.3d at 172. In all cases, we review an agency's conclusions of law de novo, and will affirm only if the agency's conclusions are in accordance with the law. Moss v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010); Dale, ¶ 26, 188 P.3d at 561-62.

DISCUSSION

A. Converse County Permit (Case No. S-12-0060)

1. Standing

[¶21] The district court determined that neither NLRA nor NLRF had standing to pursue an appeal from the Board's decision granting a WECS permit to Wasatch. It decided, however, that White Creek Ranch did have standing and proceeded to determine the merits of the appeal. NLRA and NLRF contest the district court's determination that they do not have standing; Wasatch contests the district court's ruling that White Creek does have standing.

[¶22] "The existence of standing is a legal issue that we review de novo." Halliburton Energy Services v. Gunter, 2007 WY 151, ¶ 10, 167 P.3d 645, 649 (Wyo. 2007). See also, Northfork Citizens for Resp. Dev. v. Park County Bd. of County Comm'rs, 2008 WY 88, ¶ 6, 189 P.3d 260, 262 (Wyo. 2008). Standing is a jurisprudential rule that implicates a court's subject matter jurisdiction; thus, it can be raised at any time. Hicks v. Dowd, 2007 WY 74, ¶ 18, 157 P.3d 914, 918 (Wyo. 2007), citing Granite Springs Retreat Ass'n, Inc. v. Manning, 2006 WY 60, ¶ 5, 133 P.3d 1005, 1009-10 (Wyo. 2006); Mutual of Omaha Ins. Co. v. Blury--Losolla, 952 P.2d 1117, 1119-20 (Wyo. 1998).

[¶23] In general, the doctrine of standing centers on whether a party "is properly situated to assert an issue for judicial determination." Cox v. City of Cheyenne, 2003 WY 146, ¶ 9, 79 P.3d 500, 505 (Wyo. 2003). A party has standing when it has a personal stake in the outcome of a case. Id. Given this is an agency action, we start with the applicable statutes and rules to define who has an interest in the matter. The Converse County regulations were adopted pursuant to § 18-5-501 et seq. Section 18-5-508 states that "[a]ny party aggrieved by the final decision of the board of county commissioners may have the decision reviewed by the district court pursuant to Rule 12 of the Wyoming Rules of Appellate Procedure." W.R.A.P. 12.01 provides judicial review to "any person aggrieved or adversely affected in fact" by agency action. Similarly, § 16-3-114(a) provides that "any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction . . . is entitled to judicial review . . . ."

[¶24] A litigant is "aggrieved or adversely affected in fact" by an agency action if he has a "legally recognizable interest in that which will be affected by the action." Roe v. Bd. of County Comm'rs, Campbell County, 997 P.2d 1021, 1023 (Wyo. 2000) (citation omitted). In order to establish standing for judicial review of an agency action, a litigant must show injury or potential injury by "'alleg[ing] a perceptible, rather than speculative, harm resulting from agency action.'" Hoke v. Moyer, 865 P.2d 624, 628 (Wyo. 1993), quoting Foster's Inc. v. City of Laramie, 718 P.2d 868, 872 (Wyo. 1986). "'The interest which will sustain a right to appeal must generally be substantial, immediate, and pecuniary. A future, contingent, or merely speculative interest is ordinarily not sufficient.'" L Slash X Cattle Co., Inc. v. Texaco, Inc., 623 P.2d 764, 769 (Wyo. 1981), quoting 4 Am. Jur. 2d Appeal and Error § 180. Specifically in the context of zoning or land use planning,

[a]n aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest that is or will be affected by the action of the zoning authority in question. An individual having standing must have a definite interest exceeding the general interest in community good shared in common with all citizens.

E.C. Yokley, 4 Zoning Law and Practice § 24-3 at 194 (4th ed. 1979) (footnote omitted).

Hoke, 865 P.2d at 628.

[¶25] We have decided a number of cases involving questions of standing in zoning and/or land use actions. In Hoke, 865 P.2d at 628, we determined that Mr. Moyer had standing to contest the Teton County Board of County Commissioners' decision allowing a higher density zoning category for a subdivision adjacent to his property. We said that doubling the density on the adjacent property raised "a number of perceptible harms for a property owner which are different than the harm to the general public, such as increased traffic and congestion." Id. See also Hirschfield v. Bd. of County Comm'rs of County of Teton, 994 P.2d 1139, 1143 (Wyo. 1997) (holding landowners had standing to challenge an agency decision which would have the effect of doubling the housing density previously allowed on adjoining land). In Northfork, the litigants, who lived on property adjacent to a proposed subdivision, established standing by showing potential harm that exceeded the general public's interest. They asserted the proposed land use change would increase the housing density on the adjacent land and violated other county land use regulations, including open space requirements, which could interfere with their scenic views and have adverse impacts on their ability to observe and enjoy the wildlife on their own properties. Northfork, ¶¶ 13-14, 189 P.3d at 263-65. In Cox, ¶ 14, 79 P.3d at 506, we determined adjoining landowners had standing to challenge a municipality's annexation decision that would increase housing density, leading to increased traffic and congestion and health and safety concerns.

[¶26] On the other hand, we determined the potential litigants in Roe, 997 P.2d at 1023, failed to establish standing to contest the county commission's authorization of an application to re-subdivide a subdivision. Although they alleged the commission had deviated from the proper administrative process and discussed general concerns about water rights and termination of water and sewer services, they did not spell out how the agency decision specifically threatened them.

[¶27] Turning to the appellants in this case, we start with White Creek Ranch because some of the principles applicable to its standing will also apply to our later analysis. White Creek Ranch asserts that it owns land bordering the Wasatch project and the project threatens its scenic views and wildlife habitat and migration. These assertions fall squarely within our ruling in Northfork; consequently, we conclude White Creek Ranch has standing as it was aggrieved or adversely affected in fact by the agency action.*fn4

[¶28] We turn, then, to the two associations that also seek to challenge the Converse County decision, NLRA and NLRF. Because "person" is defined as "any individual, partnership, corporation, association, municipality, governmental subdivision or public or private organization of any character other than an agency," see W.R.A.P. 12.02 and Wyo. Stat. Ann. § 16-3-101(b)(vii) (LexisNexis 2011), an association can appeal under the administrative procedures act provided it is "aggrieved or adversely affected in fact" by the agency action. Section 16-3-114(a).

[¶29] An association can establish standing on its own or through the associational rights of its members. Int'l Assoc. of Firefighters, Local No. 279 v. Civil Serv. Comm'n of Fire Dept. of City of Cheyenne, 702 P.2d 1294, 1298 (Wyo. 1985), J. Thomas, specially concurring; Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211, 45 L. Ed. 2d 343 (1975). Warth, 422 U.S. at 511, 95 S. Ct. at 2211-12 (citations omitted), provides a template for establishing an association's standing:

[A]n association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members' associational rights.

Even in absence of injury to itself, an association may have standing solely as the representative of its members. . . . [However,] [t]he association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.

[¶30] The record indicates NLRA is a limited liability company with approximately 900 members. It claims standing through injury to its members, particularly Sally Sarvey and White Creek Ranch, and through injury to itself. We have already established that White Creek Ranch has standing. The record includes information and assertions that Kenneth Lay, the owner of the ranch, is a member of NLRA; consequently, the ranch's individual standing also confers standing on NLRA through its associational ties. See Northfork, ¶¶ 8, 17, 189 P.3d at 262, 265 (holding an organization had standing because some of its individual members did).

[¶31] NLRA also claims standing through another member, Sally Sarvey. One of the bases advanced by NLRA in support of Ms. Sarvey's (and accordingly its own) standing is her concern about the visual and scenic disturbance of the area as a result of the Wasatch project. This concern was raised in an email sent to the county commissioners which stated in part:

We [Michael and Sally Sarvey] understand that the gravel operation on the face of the same mountains has ceased and that reclamation has begun. Many are skeptical that it will be effective but we remain hopeful that it is possible. Everyone views that gravel operation as an ugly scar on an otherwise peaceful scene. Now, as proposed, Phase I of the Wasatch wind farm will stand on the ridge just above the gravel quarry and further add to the Glenrock area disaster with its 30 enormous towers and blinking lights.

In making your decision on whether to permit this farm we beseech you to stand back and put it into the perspective of the future. How will it be viewed by Glenrock residents and all those that pass by? What will you and others think as you are repeatedly reminded of your part in it? What will future generations, including your own descendents, wonder?

[¶32] Even putting aside the irrelevant reference to the gravel quarry which apparently has nothing to do with the wind energy project, it is clear from this excerpt that Ms. Sarvey does not make the requisite connection between an individual harm to herself or her property and the project. There is no indication that the wind farm will threaten her with any harm beyond that the general public would incur. These general assertions do not aid her or NLRA in establishing standing.

[¶33] Nevertheless, Ms. Sarvey also stated at the public hearing that she owned property "near" land Wasatch leased for its project and she had concerns about the increased traffic from the project. We note her assertion that her property is "near" the project does not precisely fall within our precedent finding standing when the litigants asserted their property "adjoined" or was "adjacent" to the area of proposed action. See, e.g., Northfork, Hoke, supra. However, Ms. Sarvey testified about the traffic study and stated that she was concerned about the project construction vehicles causing traffic and safety issues. As we noted in Cox, Northfork, Hoke, and Hirschfield, concerns about traffic, congestion and safety in the area of one's property are perceptible harms for a property owner that distinguish him or her from the general public. Under these circumstances, we conclude Ms. Sarvey had standing and, her membership in NLRA confers standing on the organization as well.

[¶34] Finally, we consider NLRF, a nonprofit corporation which apparently has tax exempt (§501(c)(3)) status under the Internal Revenue Code. It has no members and cannot, therefore, establish standing through its members. It must establish that, as an organization, it will potentially be injured by the project. In Warth, 422 U.S. at 511, 95 S. Ct. at 2211, the United States Supreme Court explained that "an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy."

[ΒΆ35] NLRF does not claim that it owns property adjacent to the project, but argues, instead, that the project will thwart its purposes. The foundation's articles of incorporation recite that it was organized "exclusively for charitable, educational, and scientific purposes." In its pleadings, it makes various representations such as, its "purpose is to sponsor, engage in and promote activities on public and private lands in the Northern Laramie Range, including those areas adjacent to Applicant's project boundaries. The programming, mission and purpose of NLRF would be adversely affected by the destruction of the scenic views and natural beauty, and the degradation of the environment, natural habitat, wildlife and biological resources." These allegations are extremely general and do not show a causal relationship between these perceived threats and the project. There is no description of the foundation's planned programs, where specifically they will be located, or how the programs would actually be harmed by the wind project. In establishing a true interest sufficient to warrant a finding of standing, the "'pleadings must be something more than an ingenious academic exercise in the conceivable.'" Warth, 422 U.S. at 509, 95 S. Ct. at 2211, quoting United States v. SCRAP, 412 U.S. 669, 688, 93 S. Ct. 2405, 2416, 37 L. Ed. 2d 254 (1973). There is nothing in NLRF's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.