Warren Livestock, LLC, a Wyoming limited liability company; JHD Ranch LLC, a Wyoming limited liability company; Pilot Peak LLC, a Wyoming limited liability company; and Lodgepole Ranch LLC, a Wyoming limited liability company v. Board of County Commissioners, County of Albany, Wyoming ( 2024 )

IN THE SUPREME COURT, STATE OF WYOMING
2024 WY 102APRIL TERM, A.D. 2024
September 25, 2024
THOMAS A. and KAREN R. BIENZ;
LYNN MARIE BROUGHTON and
BARRY D. MATLACK; BILLY E.
BROWN; K.R. BROWN and D.L.
MATTHEW, as Trustees of the
Brown-Matthew Revocable Trust;
ROBERT and MARY BROWNELL;
ROBERT and KATHY L. BUCKARDT;
MARTY CARTER; ANTHONY C.
CLASSI and LINDA D. JOHNSON;
ROBERT C. CORCORAN, Trustee of the
Robert C. Corcoran Living Trust; ALISON
A. CORCORAN, Trustee of the Alison A.
Corcoran Living Trust; MAX D. and LORI
A. COULTHARD; LESLIE A.
DARNALL, Trustee of the Leslie A.
Darnall Living Trust; ROBERTA M.
DARNALL, Trustee of the Roberta M.
Darnall Living Trust; DANNY and
ROBERTA DUNLAVY; SANDRA
FARWELL EIKE, Trustee of the Sandra
Farwell Eike Revocable Trust; JOHN
BRUCE EMBURY; CLIFFORD D.
FERRIS; JESSICA ANN and RAY
STUART FERTIG, III; ALAN and CHERI
C. FRANK; ROBERT F. GARLAND, III,
Trustee of the Robert F. Garland Revocable
Trust; ROBERT L. and JANE R.
GONZALES; JD and CANDY
HAMAKER; MARY L. HADEN-WING
and LARRY HADEN-WING, Trustees of
the Mary L. Hayden-Wing Revocable Trust;
ROBERT F. and CAROLYN W.
HELLING; DONALD L. JARVIS; ORY J.
JOHNSON; CHERYL L. and LYLE
JOHNSTON; KEITH KENNEDY; GREG
and DIANNA KERR; DEREK J.
MANCINHO; ERNIE and CINDY
MECCA; JOHN F. NELSON and JUDITH
NELSON, Trustees of the Judith E. Nelson
Family Living Trust; DANIEL A.
NETZEL, Trustee of the Daniel A. Netzel
Revocable Trust; JON MICHAEL PIKAL
and EVA SIGLINDA FERRE-PIKAL;
JAMES L. and SALLY R. RICHARD;
HENRY R. RICHTER and RITA
ALLMARAS-RICHTER; SHAWN
SANDERS and SANDERS PROPERTIES,
LLC; KAREN DIANE SINGER;
ELIZABETH H. and RICHARD B.
SOUTHWELL JR.; KIMBERLY J.
STARKEY, Trustee of the Kimberly J.
Starkey Revocable Trust; ROBERT J.
STARKEY, JR., Trustee of the Robert J.
Starkey, Jr. Revocable Trust; TIMOTHY
and KIMBERLY TAYLOR; MARIANNE
VINER; FRED C. and PEGGY J.
WATERS; THOMAS W. WEBER, Trustee
of the Thomas W. Weber Trust; ARNOLD
and WANDA WILLEMS; WILLIAM A.
WOLF, Trustee of the William A. Wolf
Revocable Trust; LYLE HAROLD and
JANICE KAY WOMACK,
Appellants S-24-0031
(Petitioners),
v.
BOARD OF COUNTY
COMMISSIONERS, COUNTY OF
ALBANY, WYOMING,
Appellee
(Respondent).
WARREN LIVESTOCK, LLC, a Wyoming
limited liability company; JHD RANCH
LLC, a Wyoming limited liability company;
PILOT PEAK LLC, a Wyoming limited
liability company; and LODGEPOLE
RANCH LLC, a Wyoming limited liability
company,
Appellants
(Petitioners),
v.
S-24-0032
BOARD OF COUNTY
COMMISSIONERS, COUNTY OF
ALBANY, WYOMING,
Appellee
(Respondent).
Appeal from the District Court of Albany County
The Honorable Misha E. Westby, Judge
Representing Appellants Bienz et al.:
Daniel B. Frank, Frank Law Office, P.C., Meriden, Wyoming. Argument by Mr.
Frank.
Representing Appellants Warren Livestock, LLC; JHD Ranch LLC; Pilot Peak LLC;
and Lodgepole Ranch LLC:
Mitchell H. Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument
by Mr. Edwards.
Representing Appellee Board of County Commissioners, County of Albany, Wyoming:
Matthew E. Ayres, Jennifer M. Curran, and Edward Kurt Britzius, Albany County
& Prosecuting Attorney’s Office, Laramie, Wyoming. Argument by Mr. Ayres.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] In these consolidated appeals, Thomas A. and Karen R. Bienz, et al. (Property
Owners) and Warren Livestock, LLC, et al. (Warren Livestock) seek judicial review under
the Wyoming Administrative Procedure Act (WAPA) challenging the Albany County
Board of County Commissioners’ (Board) amendments to zoning regulations referred to
as the Aquifer Protection Overlay Zone (APOZ). The district court dismissed the petitions
for review, concluding that it lacked jurisdiction because the amendments were legislative
acts and not reviewable under the WAPA. On appeal, Property Owners and Warren
Livestock argue that the Board’s adoption of the APOZ amendments is reviewable and,
among other things, that the Board lacked the authority to adopt the amendments. We
conclude that the characterization of the Board’s action as legislative or adjudicatory does
not preclude review but instead dictates the scope and nature of the review. We reverse
and remand.
ISSUE
[¶2] Property Owners and Warren Livestock raise numerous issues. We remand to the
district court on the first issue, which is:
Are the APOZ amendments reviewable on direct appeal under
the WAPA?
and do not reach the remaining issues. 1
FACTS
[¶3] The Casper Aquifer underlies land in Albany County lying east of the City of
Laramie and on the western slope of the Laramie Range. It supplies drinking water to
1
The remaining issues are:
1. Did the Board’s adoption of rules for the purpose of regulating the water quality of the Casper Aquifer
exceed its statutory authority?
2. Did the Board exceed its statutory authority when it amended the APOZ regulations to address
groundwater quality which is the exclusive province of the Wyoming Department of Environmental Quality
(DEQ)?
3. Did the Board’s adoption of new rules for the inclusion and exclusion of property in the overlay zone
violate the Wyoming Constitution’s equal protection clause?
4. Did the Board act arbitrarily, capriciously, contrary to law or procedure, or in excess of its statutory
authority when it established a 35-acre minimum lot size for the overlay zone?
5. Did the Board act arbitrarily, capriciously, or otherwise not in accordance with the law when it amended
the APOZ regulations without reliable supporting data?
6. Did the Board act arbitrarily, capriciously, or otherwise not in accordance with the law when it
adopted other amendments to the APOZ that create ambiguities in the regulations and impose new expenses
on landowners who own property in the APOZ?
1
many Albany County residents including to nearly 60% of those residing in the City of
Laramie.
[¶4] The Federal Safe Drinking Water Act required states to adopt wellhead protection
programs to “protect wellhead areas within their jurisdiction from contaminants which may
have any adverse effect on the health of persons.” 42 U.S.C. § 300h-7 (2018). In 1997,
the Wyoming Department of Environmental Quality (DEQ) developed Wyoming’s
Wellhead Protection Program which was approved by the Environmental Protection
Agency (EPA). Wyoming’s Wellhead Protection Program provides criteria and
methodologies for delineating aquifer protection areas. In 1999, a group of licensed
geologists and engineers, in accordance with Wyoming’s Wellhead Protection Program,
developed a Delineation Report for the Casper Aquifer Area. The Delineation Report sets
forth zones and boundaries for protection of the aquifer. The DEQ approved the
Delineation Report in 2000.
[¶5] In 2002, the Board adopted the Casper Aquifer Protection Plan (CAPP), which
included the DEQ-approved Delineation Report. 2 The Board then adopted regulations
intended to protect the aquifer. These regulations include an overlay zone (Aquifer
Protection Overlay Zone, or APOZ) prohibiting certain land uses and restricting
development in the APOZ. The Board amended the regulations in 2012 and 2023. The
2023 amendments are at issue here. 3
2
The DEQ approved the 2002 CAPP in 2007, finding that it “met all requirements as described in the
Wyoming Wellhead Protection Guidance Document.” Shortly thereafter, Albany County began updating
the CAPP, and the Board adopted an updated CAPP in 2011. It is not clear from the record whether DEQ
approval of the updated CAPP is required and nothing in the record indicates whether DEQ approved the
updated CAPP.
3
Specifically, the Property Owners and Warren Livestock take exception to:
1. The addition of language stating, “The purpose of the Aquifer Protection Overlay Zone (APOZ) is to
prevent degradation to the water quality within the Casper Aquifer.”
2. Language defining “Aquifer Protection Overlay Zone (APOZ) Development” and allowing the Board
to regulate activities “that may result in the introduction of contaminants and/or increasing the vulnerability
of the aquifer to contamination.”
3. Amendments modifying the method of determining APOZ boundaries and disconnecting boundary
determinations from the original DEQ-approved Delineation Report and the CAPP.
4. Amendments exempting APOZ boundary amendments from notice and procedural requirements
applicable to other amendments to the Albany County Zoning Regulations.
5. Amendments specifying requirements to exclude property from the zone boundary.
6. The creation of a 35-acre minimum lot size and more restrictive density requirements.
7. Amendments which the Landowners allege “create ambiguity, . . . are arbitrary, unworkable, depart
from the recommendations of the County CAPP, and are unreasonable as applied to the [Landowners]” as
follows:
• (§ 3.D.2) Adding new language incorporating the findings of the CAPP and its updates.
• (§ 3.D.4.b) Defining Best Available Control Technology and mandating Best Available Control
Technology in repair of damaged systems.
• (§ 3.D.4.f) Changing the definition of “Vulnerable Feature” by: (1) referring to physical features at
2
[¶6] In their petitions for review, the Property Owners and Warren Livestock argued that
the Board’s adoption of the 2023 amendments to the APOZ was arbitrary, capricious, or
otherwise not in accordance with the law, that the amendments violated the Wyoming
Constitution, and that the Board exceeded its authority when it adopted them. The district
court consolidated the petitions and dismissed them for want of jurisdiction. The Property
Owners and Warren Livestock filed timely appeals.
DISCUSSION
Are the APOZ amendments reviewable on direct appeal under the WAPA?
“or near” the ground surface; (2) removing a qualifying term relating to “exposed bedrock” with the
effect of expanding the scope of APOZ from permeable to all exposed bedrock, permeable and
impermeable; and (3) removing the term “defined drainages” and generically referring to “drainages.”
• (§ 3.D.5.a&b) Changing the description of the APOZ and stating it is based on the CAPP, and
removing a specific boundary reference.
• (§ 3.D.5.b) Exempting the Board from having to follow the procedures of former § 3.D.4.c.
• (§ 3.D.5.c) Adding the term “previously surveyed parcels” to the regulation related to exclusions of
land.
• (§ 3.D.5.c.3) Giving the Board authority to approve or disapprove an application for exclusion
regardless of data supporting exclusion of the parcel. Deleting language under “Findings Necessary
for Approval” related to a standard for exclusion and property owner requests for exclusion of property.
• (§ 3.D.9.b) Deleting the expressed purpose for a Site Specific Investigation (SSI) as described in the
CAPP: “The purpose of the Site Specific Investigation SSI is to determine the vulnerability of the
aquifer Casper Aquifer to contamination by the proposed APOZ Development as a result of the
presence of Vulnerable Features on the subject property.”
• (§ 3.D.9.c.iii) Adding language referring to the presence of “any other hydrogeologic conditions
relevant to the potential for compromising aquifer water quality.”
• (§ 3.D.9.c.vi) Replacing the term “Vulnerable Feature” with new language “any other hydrogeologic
conditions.”
• (§ 3.D.9.b) Adding “with appropriate expertise” to the designation of professional engineer or
geologist.
• (§ 3.D.9.c.i) Deleting the words “literature” and “mapped” from the Vulnerable Features definition.
• (§ 3.D.9.c.vi) Removing language from the basis for conducting an SSI related to characterization and
assessment of the potential risk of contamination based on Vulnerable Features present on property.
• (§ 3.D.9.c.xi) Requiring applicants to indicate use of pesticides, fertilizers, or herbicides.
• (§ 3.D.9.d) Adding “other qualified professional licensed in the State of Wyoming” as persons the
County may hire (at the applicant’s expense) to review SSIs submitted by the applicant’s professional
engineer or geologist.
• (§ 3.D.10.a) Requiring an applicant to hire a Professional Engineer or Professional Geologist to
prepare plans and specifications for installation, repair, and removal of an existing septic system.
• (§ 3.D.10.b) Requiring landowners to pay for septic system pumping upon transfer of ownership
regardless of necessity.
• (§ 3.D.10.d) Requiring a septage pumper/hauler to determine the condition of septic systems and
report the condition to the County along with a proposed schedule for any resolution.
• (§ 3.D.10.f) Requiring a septage pumper/hauler to determine if septic systems are adequately designed
or constructed.
3
[¶7] The pivotal issue on appeal is whether the district court had subject matter
jurisdiction over the claims of Warren Livestock and the Property Owners. We review
questions of jurisdiction and of law de novo. Elliott v. Natrona Cnty. Bd. of Comm’rs,
2023 WY 61, ¶ 7, 530 P.3d 1078, 1081 (Wyo. 2023), reh’g denied (June 27, 2023);
Campbell Cnty. Bd. of Comm’rs v. Wyo. Horse Racing, LLC, 2023 WY 10, ¶ 9, 523 P.3d
901, 905 (Wyo. 2023).
Questions of jurisdiction are reviewed de novo pursuant to “the
inherent power, and the duty, to address jurisdictional defects
on appeal * * *.” Pawlowski v. Pawlowski, 925 P.2d 240, 242
(Wyo. 1996) (quoting Gookin v. State Farm Fire and Cas. Ins.
Co., 826 P.2d 229, 232 (Wyo. 1992)). The absence of subject
matter jurisdiction in a district court cannot be waived, and the
court itself can challenge that jurisdiction at any time.
Brunsvold v. State, 864 P.2d 34, 36 (Wyo. 1993). This court
can have no greater jurisdiction of the subject matter than the
district court. Where the district court is without jurisdiction
in an administrative appeal from an agency, this court must
dismiss the appeal. Scanlon v. Schrinar, 759 P.2d 1243, 1246
(Wyo. 1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1131, 103
L.Ed.2d 193 (1989) (quoting Snell v. Ruppert, 541 P.2d 1042,
1048 (Wyo. 1975)).
Sheridan Ret. Partners v. City of Sheridan, 950 P.2d 554, 556 (Wyo. 1997).
A. Judicial Review of Administrative Decisions and the Legislative/Adjudicative
Dichotomy
[¶8] The WAPA provides for judicial review of agency actions unless review is limited
or precluded by statute or common law. Wyo. Stat. Ann. § 16-3-114(a) provides:
Subject to the requirement that administrative remedies be
exhausted and in the absence of any statutory or common-
law provision precluding or limiting judicial review, 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 in the
district court for the county in which the injury or harm for
which relief is sought occurred[.]
Wyo. Stat. Ann. § 16-3-114(a) (LexisNexis 2023) (emphasis added).
4
[¶9] The district court, relying on cases where we have declared that the WAPA does not
apply to legislative actions or hearings, concluded that the Board’s adoption of the APOZ
amendments was a legislative act and, therefore, not subject to review under the WAPA.
See, e.g., Holding’s Little Am. v. Bd. of Cnty. Comm’rs of Laramie Cnty., 670 P.2d 699,
702 (Wyo. 1983). The Property Owners and Warren Livestock contend that this conclusion
was erroneous and that the issues they raised are reviewable under the WAPA.
[¶10] We recognize our precedent—that legislative acts are not reviewable under the
WAPA—has not been consistently applied and has in some instances insulated agency
legislative actions from judicial review. Our language that legislative acts are not
reviewable under the WAPA is overbroad. We take this opportunity to clarify there is no
common law or general statutory exception to judicial review of agency legislative actions,
instead, the WAPA provisions governing review, well-understood judicial principles, and
separation of power principles guide the nature and scope of our review.
B. There Is No General Common Law Exception to Judicial Review of Agency
Legislative Actions
[¶11] We first addressed the interplay between legislative facts and the WAPA in Scarlett
v. Town Council, Town of Jackson, Teton Cnty., 463 P.2d 26 (Wyo. 1969), and revisited
this interaction in Lund v. Schrader, 492 P.2d 202 (Wyo. 1971). Neither of these decisions
stands for the proposition that agency legislative actions are not subject to judicial review,
and neither decision directly addressed legislative actions, but each distinguished
legislative facts from judicial facts in resolving whether a contested case hearing was
required under the WAPA.
[¶12] In Scarlett, appellants raised several issues on appeal. Of relevance here, they
argued the town’s annexation of certain property was void because the town did not hold a
contested case hearing before it annexed the property, and the annexation was not
supported by substantial evidence. Scarlett, 463 P.2d at 27. Addressing the contention
that a contested case hearing was required prior to annexation, we held that because the act
of annexation “does not take away the property from the owner, nor affect his private
right,” a contested case (defined as a proceeding “in which legal rights, duties or privileges
of a party are . . . determined by an agency after an opportunity for hearing”) was not
required. Id. at 29 (quoting Stilz v. City of Indianapolis, 55 Ind. 515, 519 (1877) and citing
Wyo. Stat. § 9-276.19(b)(2)). In reaching this conclusion, we distinguished between
legislative and adjudicative facts: “a party who has a sufficient interest or right at stake in
a determination of governmental action should have an opportunity for a trial type of
hearing on issues of adjudicative facts, but that such a hearing often is not necessarily
required on issues of legislative facts.” Id. at 29 (citations omitted). We recognized that
“the distinction between adjudicative facts and legislative facts is not always entirely
clear.” Id. We cautioned that the conclusion as to whether an issue implicates legislative
or adjudicative facts must not be made “without analysis,” but that the WAPA’s guarantee
5
of a contested case hearing only applied when adjudicative facts were at issue. Id.
Although we concluded a contested case hearing was not warranted because the town’s
decision rested on legislative facts, we considered the contention that the town lacked
substantial evidence to support annexation. Id. at 30–31.
[¶13] Next, in Lund v. Schrader, the appellants challenged the formation of a unified
school district, arguing it violated several provisions of the Wyoming Constitution and was
void for the lack of a contested case hearing. We resolved the constitutional challenges,
Lund, 492 P.2d at 205–09, before turning to the contention that a contested case hearing
was required. Id. at 210. We again held that “contested cases were not [required for]
legislative or argumentative-type hearings” and found “nothing in the Wyoming School
District Organization Law of 1969 which suggests the holding of trial-type hearings” is
required. Id. at 209.
[¶14] Significantly, neither Scarlett nor Lund held that the common law prohibits review
of legislative acts under the WAPA. They stand for the proposition that a contested case
hearing is not required to determine legislative facts. The Court in Scarlett resolved
substantive challenges to the annexation, and in Lund we settled constitutional questions.
[¶15] The next case in our jurisprudence to address the interaction between agency
legislative action and the WAPA is McGann v. City Council of City of Laramie. The
dispositive issue in McGann was whether a City of Laramie zoning amendment was
reviewable under the WAPA. McGann v. City Council of City of Laramie, 581 P.2d 1104,
1105 (Wyo. 1978). We determined that the zoning ordinance, which reclassified property
in a residential zone to business, was a legislative act. McGann at 1106. Relying
exclusively on Scarlett and Lund we declared, “the provisions of the [WAPA] do not apply
to legislative actions or hearings.” Id. at 1106. We found “reinforcement” for that
conclusion in amendments to the WAPA that followed Laramie’s 1976 zoning ordinance.
In 1977 the legislature amended the WAPA to exclude “the governing body of a city or
town when acting in a legislative capacity” from the definition of an agency and, therefore,
from the purview of the WAPA. Id. at 1107. McGann effectively expanded our holdings
in Scarlett and Lund to limit reviewability under the WAPA without fulsome analysis or
citation to other authority.
[¶16] In two cases that followed, Bd. of Cnty. Comm’rs of Teton Cnty. v. Teton Cnty.
Youth Servs., Inc. and Holding’s Little Am. v. Bd. of Cnty. Comm’rs of Laramie Cnty., we
echoed, but did not analyze or apply, McGann’s maxim that the WAPA does not apply to
legislative actions or hearings. In Teton Cnty. Youth Servs., the majority held that any
legislative exception to the applicability of the WAPA did not apply because the action in
that case—determining whether Teton County Youth Services satisfied requirements for
obtaining a development permit—was adjudicative in nature. Bd. of Cnty. Comm’rs of
6
Teton Cnty. v. Teton Cnty. Youth Servs., Inc., 652 P.2d 400, 416 (Wyo. 1982). 4 In
Holding’s Little Am., we concluded that the action at issue—the approval and issuance of
revenue bonds—was adjudicative and therefore reviewable. Holding’s Little Am., 670 P.2d
at 702.
[¶17] We next addressed the ostensible legislative action exception to the WAPA in
Sheridan Plan. Ass’n v. Bd. of Sheridan Cnty. Comm’rs. There, we ruled the Sheridan
County Commissioners’ approval of the Powder Horn Subdivision PUD was a “non-
reviewable legislative act[].” Sheridan Plan. Ass’n v. Bd. of Sheridan Cnty. Comm’rs, 924
P.2d 988, 990–91 (Wyo. 1996) (citing McGann, 581 P.2d at 1106-07, and Jurkiewicz v.
Butler Cnty. Bd. of Elections, 620 N.E.2d 146, 147 (Ohio Ct. App. 1993)).
Notwithstanding this determination, we considered the Sheridan Planning Association’s
claims that the commissioners did not follow their own rules and that they had unlawfully
delegated their authority to the planning and zoning commission. Sheridan Plan. Ass’n,
924 P.2d at 990–91.
[¶18] In Wyo. Horse Racing, the Campbell County Board of Commissioners (Campbell
County) adopted a resolution revoking prior approvals of simulcast operations under
Wyoming’s Pari-Mutuel Act. Wyo. Horse Racing, ¶ 1, 523 P.3d at 903; Wyo. Stat. Ann.
§ 11-25-102. The operators of simulcast events appealed, and Campbell County argued
the WAPA did not apply because its resolution was a legislative act. We did not analyze
or apply a common law exception to reviewability. Rather, we concluded that because the
resolution revoked prior approvals of the petitioners’ operations, it was adjudicative in
nature, and reviewable. Wyo. Horse Racing, ¶¶ 13–14, 523 P.3d at 905–06.
[¶19] Finally, in Brazinski, the petitioners sought judicial review of Teton County’s
amendment to a planned unit development (PUD) permit to allow workforce housing.
Brazinski v. Bd. of Cnty. Comm’rs of Teton Cnty., 2024 WY 40, ¶ 1, 546 P.3d 545, 547–
48 (Wyo. 2024). The county argued its decision was not subject to judicial review
“because, under the common law, zoning is a legislative action and legislative decisions
are not subject to judicial review under the WAPA.” Id. ¶ 13, 546 P.3d at 550. We declined
to address the question of whether the PUD amendment in question was a legislative action
or whether all PUD amendments would be legislative actions, saying, “We need not decide
whether an amendment of a PUD is always an unreviewable legislative action or whether
we should apply the legislative/adjudicatory dichotomy to determine whether it is
reviewable because the [petitioners] simply ask us to determine whether the Board
followed its rules and regulations in approving [the PUD amendment].” Id. ¶¶ 17–18, 546
P.3d at 551.
4
The dissent pointed out that because cities acting in their legislative capacity are not governed by the
WAPA, McGann (which addressed a city ordinance) was not controlling in Bd. of Cnty. Comm’rs of Teton
Cnty. v. Teton Cnty Youth Servs., Inc., and it was unnecessary to determine whether the board’s action was
legislative or adjudicative. It opined the WAPA would apply to legislative or adjudicative action. Teton
Cnty. Youth Servs., 652 P.2d at 421–22 (Raper, J., dissenting).
7
[¶20] On review of these cases, we recognize we have been wrong in proclaiming, without
qualification, that the common law prohibits review of an agency’s legislative acts under
the WAPA. To the extent that McGann can be read to create a common law exception to
such review, it is overruled. 5 There is no common law prohibition to review of agency
legislative acts.
C. There Is No General Statutory Exception to Judicial Review of Agency
Legislative Actions
[¶21] The WAPA anticipates judicial review of a final agency decision when any person
is aggrieved in a “contested case, or by other agency action or inaction,” and when there
is no “statutory or common-law provision precluding or limiting judicial review.” Wyo.
Stat. Ann. § 16-3-114(a) (emphasis added).
[¶22] There is no general statutory prohibition to judicial review of the legislative actions
of agencies, and we have found no statutory prohibition to review of zoning legislation.
The WAPA does not distinguish between legislative and judicial actions of an agency. It
directs reviewing courts as follows:
(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
5
Overruling prior case law is an act this Court approaches with
caution.
We consider the doctrine of stare decisis to be an
important principle which furthers the “evenhanded, predictable,
and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Cook v. State, 841 P.2d 1345,
1353 (Wyo. 1992) (quoting Payne v. Tennessee, 501 U.S. 808,
827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991)).
Nevertheless, we should be willing to depart from
precedent when it is necessary “to vindicate plain, obvious
principles of law and remedy continued injustice.” Id. When
precedential decisions are no longer workable, or are poorly
reasoned, we should not feel compelled to follow precedent. Stare
decisis is a policy doctrine and should not require automatic
conformance to past decisions.
Brown v. City of Casper, 2011 WY 35, ¶ 43, 248 P.3d 1136, 1146 (Wyo. 2011) (citation omitted). See also
Smith v. Bd. of Cnty. Comm’rs of Park Cnty., 2013 WY 3, ¶¶ 14–16, 291 P.3d 947, 951–52 (Wyo. 2013)
(articulating our exercise of caution when abrogating common law but also recognizing that abrogation is
necessary to avoid perpetuation of past errors).
8
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.
Wyo. Stat. Ann. § 16-3-114(c).
[¶23] We have a “well-established policy favoring judicial review in most instances,” and
consistent with that policy we have said, “the right to review is not precluded unless
legislative intent to preclude judicial review is clear and convincing.” Gordon v. State by
& through Capitol Bldg. Rehab., 2018 WY 32, ¶ 17, 413 P.3d 1093, 1100 (Wyo. 2018)
(citing and quoting Pisano v. Shillinger, 835 P.2d 1136, 1138–39 (Wyo. 1992)). “[W]here
substantial doubt about legislative intent exists, the general presumption favoring judicial
review of administrative action is controlling.” Id. (quoting Pisano, 835 P.2d at 1139
(citing Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 2456, 81 L.Ed.2d
270 (1984))). As pointed out above, we have found no statute that generally prohibits
review of agency legislative action, and we have reviewed agency legislative actions on
direct appeal under the WAPA. See Brazinski, ¶ 1, 546 P.3d at 547 (examining whether
Teton County followed its own rules when it approved zoning amendment without a
determination as to whether the action was legislative or adjudicatory); Sheridan Plan.
Ass’n, 924 P.2d at 990–91 (considering claims the commissioners did not follow their own
9
rules and that they had unlawfully delegated their authority to the planning and zoning
commission); Hoke v. Moyer, 865 P.2d 624, 629–31 (Wyo. 1993) (reviewing county
zoning amendment to determine whether it complied with statutory and regulatory
requirements); Lund, 492 P.2d at 205–09 (reviewing constitutional challenges to school
district consolidation).
[¶24] Our review of agency legislative acts is unremarkable. Even the legislature may not
pass laws that violate the constitution. Cathcart v. Meyer, 2004 WY 49, ¶¶ 59–60, 88 P.3d
1050, 1072 (Wyo. 2004) (concluding term limit law violates the Wyoming Constitution).
Legislative actions by administrative bodies are no less constrained, 6
[h]owever, there are differences between [agencies and state
and federal legislatures] and these differences profoundly
affect the availability and scope of judicial review. Unlike the
legislative bodies of state or federal stature, [agencies] are the
legislative arms [of the state] with few of the attributes of
sovereignty. And they are the subject of judicial suspicion of
local government, generated by political struggles and
incidents of . . . corruption. . . . [Courts] have reviewed not only
the substantive content of municipal legislation . . . , but have
examined the procedure of local legislative bodies, and have
even inquired into the interest and bias of members of the local
legislative authorities.
4 Patricia E. Salkin, Anderson’s American Law of Zoning § 42:5 (5th ed. 2024) (footnotes
omitted).
D. Review Is Limited by the Separation of Powers Doctrine
[¶25] Absent a specific statutory limitation, agency legislative actions are reviewable
under the WAPA. However, such review has limitations. Judicial review of agency
6
In the zoning context, we note that counties have broad authority to zone in the public interest. See Wyo.
Stat. Ann. §§ 18-5-201 through -207 (LexisNexis 2023). Yet, “[z]oning ordinances must, of course,
conform to state and federal constitutional requirements and state and federal law.” Eugene McQuillan, 8
Law of Municipal Corporations § 25:64, at 301 (3d ed., rev. vol. 2020). “[T]he general grant of power to
[local governments] to adopt zoning laws in the interest of public welfare does not permit the local
governing bodies to override the state law and the policies supporting it.” Ahearn v. Town of Wheatland,
2002 WY 12, ¶ 14, 39 P.3d 409, 415–16 (Wyo. 2002) (citing State ex rel. Baker v. Strange, 960 P.2d 1016,
1018 (Wyo. 1998); Vandehei Devs. v. Pub. Serv. Comm’n of Wyo., 790 P.2d 1282, 1286–87 (Wyo. 1990));
see also River Springs Liab. Co. v. Bd. of Cnty. Comm’rs of Cnty. of Teton, 899 P.2d 1329, 1337 (Wyo.
1995) (a county may only regulate mineral activity in such a way that it does not conflict with state
regulation). “The justification for this rule of law is that [local governments] have no sovereignty
independent from that of the state, and the only power available to them is the power that has been delegated
to them by the state.” Ahearn, ¶ 14, 39 P.3d at 416 (citing Baker, 960 P.2d at 1018).
10
legislative acts under the WAPA must take into account separation of powers and is more
limited than review of non-legislative agency action. The separation of powers doctrine
requires the courts “to give great deference to legislative pronouncements[.]” Gordon,
¶ 51, 413 P.3d at 1108 (quoting Powers v. State, 2014 WY 15, ¶ 7, 318 P.3d 300, 303
(Wyo. 2014)). “The wisdom or unwisdom of legislation, as is generally known, is not a
matter for the courts to determine.” Denny v. Stevens, 52 Wyo. 253, 75 P.2d 378, 378
(1938) (citation omitted). When the legislature chooses to delegate its power to local
entities, our deferential approach is not abandoned. See Bradley v. City of New Castle, 764
N.E.2d 212, 216 (Ind. 2002).
[¶26] The separation of powers doctrine does not foreclose judicial review of agency
legislative action under the WAPA, and there are circumstances where judicial relief is
required. Accordingly, we will review agency legislative action to determine whether an
agency action was “[c]ontrary to constitutional right, power, privilege or immunity”; was
not “in accordance with law”; was “[i]n excess of statutory jurisdiction, authority or
limitations or lacking statutory right”; or was divergent from its own rules. Wyo. Stat.
Ann. § 16-3-114(c)(ii)(A)–(D); see Lund, 492 P.2d at 205–09; Sheridan Plan. Ass’n, 924
P.2d at 990–91; Brazinski, ¶¶ 17–18, 546 P.3d at 551; see also Salkin, supra, § 42:5. 7
E. Analytic Framework
[¶27] We take this opportunity to clarify the analytic framework courts should apply when
reviewing actions of agencies under the WAPA. The reviewing court must first examine
each amendment or action raised by the petitioner and determine the extent to which it is
reviewable. 8
7
We note that there is a varied approach to the limits of judicial review of agency legislative zoning action.
See League to Save Lake Tahoe Mountain etc. v. Cnty. of Placer, 290 Cal. Rptr. 3d 218, 268 (Ct. App.
2022), review denied (May 18, 2022) (“[j]udicial review of legislative action is limited to determining
whether the enactment is arbitrary, capricious, or unconstitutional” (citation omitted)); Quinn v. Town of
Dodgeville, 354 N.W.2d 747, 754 (Wis. Ct. App. 1984), aff’d, 122 Wis. 2d 570, 364 N.W.2d 149 (1985)
(“Although zoning is a legislative function, judicial review exists in cases of abuse of discretion, excess of
power or error of law.” (citations omitted)); Robertson v. Jefferson Par., 465 So. 2d 787, 790 (La. Ct. App.
1985) (Louisiana law provides for review of legislative zoning actions for “abuse of discretion,
unreasonable exercise of police power, excessive use of powers, or denial of the right of due process.”);
Erigan Co. v. Town of Grantwood Vill., 632 S.W.2d 495, 496 (Mo. Ct. App. 1982) (legislative zoning act
is reviewable “only [to] assess whether the legislature has exercised its powers arbitrarily and
unreasonably” (citation omitted)).
8
We acknowledge the deference we pay to a district court’s decision on administrative review is
substantially less than in ordinary appeals; however, the district court’s decisions “are of great help as an
aid to our own analysis and may point up some factor not apparent to the parties but a subject of judicial
discernment. . . . [We do not] denigrate the value of an intermediate judicial study.” Teton Cnty. Youth
Servs., 652 P.2d at 421 (Raper, J., dissenting).
11
[¶28] In Wyo. Horse Racing, we made clear that the first step in determining the extent of
review of agency action is a determination of whether the action is legislative or
adjudicatory. Wyo. Horse Racing, ¶ 12, 523 P.3d at 905 (quoting Holding’s Little Am.,
670 P.2d at 702). “[W]hether an agency’s ‘action is legislative is usually determined by
comparison with adjudicatory proceedings.’” Id. (quoting Holding’s Little Am., 670 P.2d
at 702). In Holding’s Little Am. we explained:
Legislative power is distinguished from judicial power,
or legislation from adjudication, in that basically or
usually it operates in the future, rather than on past
transactions and circumstances, and generally, rather
than particularly. . . .
Legislative action produces a general rule or policy which
applies to a general class of individuals, interests, or situations.
Judicial or adjudicatory functions apply generally to
identifiable persons and specific situations. 1 Am.Jur.2d
Administrative Law § 164.
Holding’s Little Am., 670 P.2d at 702 (quoting 1 Am.Jur.2d Administrative Law § 93).
Legislative actions operate in the future, apply to a general class of individuals, and
“‘produce[] a general rule or policy,’ while adjudicatory action applies to ‘identifiable
persons and specific situations.’” Sheridan Cnty. Comm’n v. V.O. Gold Properties, LLC,
2011 WY 16, ¶ 7, 247 P.3d 48, 50 (Wyo. 2011) (quoting Foster’s Inc. v. City of Laramie,
718 P.2d 868, 873 (Wyo. 1986)).
[¶29] If the court determines that the action is adjudicatory, it is reviewable under well-
established law on direct appeal under the WAPA. Wyo. Stat. Ann. § 16-3-114. If the
court concludes that the action is legislative and there is no specific statutory prohibition
to review, it is reviewable, subject to the limitations discussed, supra. See supra ¶¶ 25–
26.
[¶30] On remand, the district court will need to reexamine each amendment under this
framework.
CONCLUSION
[¶31] The district court has jurisdiction to review the APOZ amendments. We reverse
and remand to the district court to conduct an analysis in conformance with this opinion.
See Douglass v. Wyo. Dep’t of Transp., 2008 WY 77, ¶¶ 30–31, 187 P.3d 850, 856–57
(Wyo. 2008) (remanding agency appeal after concluding district court erred when it
dismissed appeal as untimely).
12