IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 82

APRIL TERM, A.D. 2014

June 25, 2014

ROGER SEHERR-THOSS, d/b/a RST 

SAND & GRAVEL and/or RST 

EXCAVATION AND TRUCKING,

Appellant

(Petitioner),

v.

TETON COUNTY BOARD OF 

COUNTY COMMISSIONERS and 

TETON COUNTY PLANNING 

DIRECTOR,

Appellees

(Respondents).

S-13-0086

Appeal from the District Court of Teton County

The Honorable Timothy C. Day, Judge

Representing Appellant:

Elizabeth N. Moore Ibanez and Joseph F. Moore Jr., of Moore & Myers, LLC, 

Jackson, WY. Argument by Ms. Moore Ibanez.

Representing Appellees:

Keith M. Gingery, Deputy County Attorney, Jackson, WY; and Lori Potter of 

Kaplan Kirsch Rockwell, Denver, CO. Argument by Mr. Gingery.

Before HILL, BURKE, and DAVIS, JJ., and GOLDEN, J. (Ret.), and KAUTZ, D.J.
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.
1

KAUTZ, District Judge.

[¶1] On June 7, 2010, Appellee, the Teton County Board of County Commissioners 

and Teton County Planning Director (“Teton County” or “County” or “Planning 

Director”),1issued a Notice to Abate to Appellant Roger Seherr-Thoss (“RST”). The 

County found that RST’s gravel business violated the County’s Land and Development 

Regulations (“LDRs”) because the business had expanded in volume and footprint since 

the LDRs were adopted in 1978. The Planning Director issued an amended Notice to 

Abate on February 16, 2011 that required RST to reduce levels of production to pre-1978 

levels. Following RST’s appeal to the Teton County Board of County Commissioners 

(“Board”), a contested case hearing was held on June 14-16, 2011. On August 8, 2011, 

the hearing officer issued a Recommended Findings of Fact, Conclusions of Law, and 

Order. After holding hearings on September 7 and November 1 of 2011, the Board 

adopted the hearing officer’s Recommended Findings of Fact, Conclusions of Law, and 

Order with minimal amendments, issuing its decision on November 7, 2011. The Order 

recognized that RST’s historical gravel crushing and extraction operations were 

grandfathered under Wyo. Stat. Ann. § 18-5-207. However, the Order attempted to 

reduce RST’s operation to its 1978 extent. It required RST to reduce his operation’s

footprint to three acres, to submit a reclamation plan to the County within sixty days, to 

post a surety bond consistent with the LDRs within sixty days, to reduce his volume of 

extracted gravel to 15,000 cubic yards or 17,000 tons per year, and to limit his operating 

hours to Monday through Friday from 7:00 a.m. to 5:00 p.m.

[¶2] RST next appealed the Board’s Order to the Teton County District Court. The 

district court affirmed the Board’s decision. We reverse.

ISSUES

[¶3] RST presents the following issues on appeal:

I. Did the Teton County Board of County 

Commissioners (Board) err in concluding that Wyo. Stat. 

§ 18-5-207 does not prevent the County from prohibiting or 

otherwise regulating or limiting the expansion or enlargement 

of the use of Roger Seherr-Thoss’s land for continued 

extraction and processing of gravel when Mr. Seherr-Thoss’s 

family was using their land for that purpose before the 

County prohibited it through enactment of the Teton County

Land Development Regulations (LDRs)?

 

1 This opinion refers to the Teton County Board of County Commissioners as the Board when it is acting 

as the reviewing agency.
2

II. Did the Board err in concluding that its authority to 

regulate Roger Seherr-Thoss’s grandfathered gravel operation 

is not preempted by the Department of Environmental 

Quality’s (DEQ) pervasive regulatory system, which 

regulates most aspects of the operation including bonding, 

reclamation, and expansion?

III. Did the Board misapply the doctrine of diminishing 

assets and fail to base its finding that Seherr-Thoss was not 

permitted any natural and necessary expansion of his family 

gravel mining operation on substantial evidence?

IV. Did the District Court or the Board abuse its discretion 

in failing to apply the equitable doctrine of estoppel to bar the 

County from requiring the [sic] Roger Seherr-Thoss to prove 

the scope and scale of his gravel extraction operations when 

Seherr-Thoss presented unrefuted evidence that the County 

purchased gravel from him and then waited nearly twenty 

years before attempting to shut down his livelihood under the 

Land Development Regulations?

The County phrases the issues on appeal as:

I. Whether Wyo. Rev. Stat. § 18-5-207 Authorizes the 

County to Reasonably Regulate Expansion of RST’s Gravel 

Operation.

II. Whether the Wyoming Environmental Quality Act 

Preserves a Role for Counties to Regulate Expanded, 

Nonconforming Gravel Operations.

III. Whether Substantial Evidence Supports the 

Determination that the Doctrine of Diminishing Assets Does 

Not Authorize Expansion of RST’s Gravel Operation.

IV. Whether Substantial Evidence Supports the 

Determination that Equitable Estoppel and Laches Do Not 

Bar the County from Enforcing its Zoning Regulations.
3

FACTS

[¶4] RST and his father owned and operated an approximately 350-acre cattle ranch in 

Teton County, Wyoming. In the 1970s, RST also operated a trucking business to 

supplement his income. Since at least 1977, RST and his father stopped other economic 

pursuits, cut back on their livestock operation, and focused on operating a gravel 

operation. They have continuously operated a gravel operation within the 350-acre

ranch. 

[¶5] In 1978, Teton County enacted its first LDRs. Those LDRs placed RST’s 

property in a residential-agricultural zone. In this type of zone, the County does not 

permit gravel operations unless the landowner obtains a special-use permit (“SUP”) from 

the County. In 1994, the County repealed and replaced the 1978 LDRs with the 1994 

LDRs, which also prohibited gravel operations on RST’s property.

[¶6] The County did not begin to investigate and attempt to enforce its LDRs against 

RST until 1995, claiming that it did not have knowledge of RST’s gravel operation. 

When the County began investigating RST’s gravel operation, it was a small operation 

using approximately three acres. Nonetheless, RST derived most of his income from his

gravel operation. The operation was located in a portion of the ranch where it could be 

expanded in accordance with need and economic benefit to RST. From 1995 to 2010, the 

County and RST engaged in discussions regarding the legality of RST’s use of his 

property. After discussions and short-term solutions had failed to resolve the issue, the 

Planning Director issued a Notice to Abate to RST on June 7, 2010 that ordered him to 

cease gravel crushing and extraction operations on his property and to reduce his 

screening and stockpiling to pre-1978 levels. On February 16, 2011, the Planning 

Director subsequently amended the Notice to Abate to also require RST to reduce his

production levels to pre-1978 levels. RST appealed to the Board.

[¶7] After a contested case hearing held on June 14-16, 2011, a hearing officer issued a 

Recommended Findings of Fact, Conclusions of Law, and Order. The hearing officer 

found that that all aspects of RST’s gravel operation, including gravel extraction and 

crushing, were grandfathered under Wyo. Stat. Ann. § 18-5-207. The hearing officer also 

found, however, that the size and scope of RST’s land use was grandfathered only to the 

extent of his operations at the time the LDRs became effective in 1978. To that end, the 

hearing officer examined the earliest available evidence that indicated the size and scale 

of RST’s operation. The hearing officer found that the first inspection of RST’s gravel 

operation occurred in 1995 and was conducted by John Erickson of the Wyoming

Department of Environmental Quality (“DEQ”). This inspection revealed that RST’s 

operation covered approximately three acres. RST first reported production volume of 

16,200 tons to the Department of Revenue in 1996. In 1998, RST first reported

extraction volume to DEQ of 15,000 cubic yards or 17,000 tons of gravel per year.
4

[¶8] On November 7, 2011, the Board issued its decision, which adopted the hearing 

officer’s Recommended Findings of Fact, Conclusions of Law, and Order with minimal 

amendments. Although the Order recognized that all aspects of RST’s gravel operation 

were grandfathered, it required RST to reduce the footprint of his operation to three acres, 

to submit a reclamation plan to the County within sixty days, to post a surety bond 

consistent with the LDRs within sixty days, to reduce his volume of extracted gravel to

15,000 cubic yards or 17,000 tons per year, and to limit his operating hours to Monday 

through Friday from 7:00 a.m. to 5:00 p.m.

[¶9] RST appealed to the Teton County District Court. The district court affirmed the 

Board’s Order. RST then filed this timely appeal. On December 10, 2013, this Court 

heard oral argument. Further facts are included below with the analysis for each issue.

STANDARD OF REVIEW

[¶10] The Wyoming Rules of Appellate Procedure govern reviews of administrative 

decisions. W.R.A.P. 12. Specifically, Rule 12.09(a) limits review to matters contained 

in the Wyoming Administrative Procedure Act, which provides in pertinent part:

(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; 

[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) (LexisNexis 2013).
5

[¶11] When reviewing an “appeal from a district court’s review of an administrative 

agency’s decision, we give no special deference to the district court’s decision. Instead, 

we review the case as if it had come directly to us from the administrative agency.” Dale

v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008) (internal 

quotation marks omitted).

[¶12] We apply the substantial evidence standard whenever we review an evidentiary 

ruling. Dale, ¶ 22, 188 P.3d at 561. When conducting a substantial evidence review of 

the record, we extend to the administrative agency the deference that we normally accord 

to the findings of fact by a trial court. Id., ¶ 11, 188 P.3d at 558. We are mindful that 

“the administrative body is the trier of fact and has the duty to weigh the evidence and 

determine the credibility of witnesses.” Id. In Dale, we further explained the application 

of the substantial evidence standard.

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).

[¶13] In Dale, we also explained the appropriate application of the arbitrary and 

capricious standard. We described it 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.” Newman,

¶ 23, 49 P.3d at 172. Although we explained the “safety net” 

application of the arbitrary and capricious standard in 

Newman, we will refine it slightly here to more carefully 

delineate that it is not meant to apply to true evidentiary 

questions. Instead, the arbitrary and capricious standard will 
6

apply if the hearing examiner refused to admit testimony or 

documentary exhibits that were clearly admissible or failed 

to provide appropriate findings of fact or conclusions of law. 

This listing is demonstrative and not intended as an inclusive 

catalog of all possible circumstances. Id.

Dale, ¶ 23, 188 P.3d at 561.

[¶14] “As always, we review an agency’s conclusions of law de novo, and we will 

affirm an agency’s legal conclusion only if it is in accordance with the law.” Dale, ¶ 26, 

188 P.3d at 561-62 (internal quotation marks omitted).2

[¶15] Last, we highlight some pertinent rules pertaining to the standard of proof. “The 

normal standard of proof in administrative hearings is the preponderance-of-the-evidence 

 

2 Citing Wilson Advisory Committee v. Board of County Comm’rs, 2012 WY 163, ¶ 22, 292 P.3d 855, 862 

(Wyo. 2012), the County asserted, “An agency’s interpretation of its own statute and regulations deserves 

deference.” Wilson does not support this proposition. We stated in Wilson:

In all cases, we review an agency’s conclusions of law de novo. An agency’s 

own rules and regulations “have the force and effect of law, and an administrative agency 

must follow its own rules and regulations or face reversal of its action.” However, “we 

defer to an agency’s interpretation of its own rules and regulations unless that 

interpretation is clearly erroneous or inconsistent with the plain language of the rules.”

Wilson, ¶ 22, 292 P.3d at 862 (citations omitted). A plain reading of this paragraph not only reveals no 

mention of the word “statute,” but also reveals that we were clearly referring to the rules and regulations 

that an agency promulgates. Other cases, however, somewhat support the County’s assertion. Petroleum 

Inc. v. State ex rel. State Bd. of Equalization, 983 P.2d 1237, 1240 (Wyo. 1999) (“We generally defer to 

the construction placed on a statute by the agency that is charged with its execution, provided, however, 

that the agency’s construction does not conflict with the legislature’s intent.”); see also Laramie Cnty. Bd. 

of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1190 (Wyo. 1996). Our earlier 

pronouncements of this principle delineated its boundaries and rationale more carefully.

Administrative interpretation of a statute . . . [is] entitled to weight when the 

legislature has failed over a long period of time to make any change in the statute. Such 

failure is some indication of an acquiesence [sic] by the legislature to administrative 

interpretation . . . . During the past sixty years, the legislature has had ample opportunity 

to amend the statute to include the words “sewage disposal,” but it has not. Such longstanding acquiescence is an indication of legislative intent.

Public Serv. Comm’n v. Formal Complaint of WWZ Co., 641 P.2d 183 at 186 (Wyo. 1982) (citation 

omitted); see also State Bd. of Equalization v. Tenneco Oil Co., 694 P.2d 97 (Wyo. 1985); School 

Districts Nos. 2, 3, 6, 9, and 10, in Campbell Cnty. v. Cook, 424 P.2d 751, 756 (Wyo. 1967).

In the present matter, the County’s interpretation of the applicable statutes is not longstanding, 

providing the legislature with no opportunity to acquiesce to it. Thus, we have no basis for giving weight 

or deference to the County’s interpretation and will not do so.
7

standard.” JM v. Dept. of Family Servs., 922 P.2d 219, 223 (Wyo. 1996). If the hearing 

officer deems credible the admitted evidence submitted by the burdened party and “there 

is no meaningful evidence in conflict with it,” then that party has met his burden of proof 

by a preponderance of the evidence. Ikenberry v. State ex rel. Wyo. Workers’ Comp.

Div., 5 P.3d 799, 803 (Wyo. 2000). An individual’s testimony alone is sufficient to carry 

the individual’s burden if there is nothing to impeach or discredit the individual’s 

testimony and the individual’s statements are corroborated by surrounding circumstances. 

Id. Accordingly, a lack of documentary evidence does not prevent the hearing officer 

from making findings of fact, see Id., since “[t]he issue of documentary [evidence] versus 

oral testimony is one of weight.” Houx v. Houx, 2006 WY 102, ¶ 25, 140 P.3d 648, 655 

(Wyo. 2006).

DISCUSSION

I. The Extent of a County’s Statutory Zoning Authority

[¶16] RST first contends that Wyo. Stat. Ann. § 18-5-207 unambiguously denies the 

County the authority to regulate expansion of a grandfathered nonconforming land use, 

such as his gravel operation. Additionally, he asserts that, even if this Court finds § 18-5-

207 ambiguous, the application of statutory construction rules will not change the 

limitation that § 18-5-207 places on the County’s zoning authority. The County argues 

that expansion of a grandfathered nonconforming use is subject to its statutory zoning 

authority under Wyo. Stat. Ann. § 18-5-201. Furthermore, the County asserts that when 

the statute is construed and read in pari materia, the limitations in § 18-5-207 do not 

prevent the County from regulating expansion of RST’s gravel operation.

[¶17] RST’s first argument presents a legal issue that we review de novo. Because this 

issue implicates many statutory construction rules, we recite them in detail.

Statutory interpretation involves a reasoned search for 

the intention of the legislature. We interpret statutory 

language in light of the purpose and policy behind the 

enactment. In seeking to ascertain the intent of the legislature 

regarding the proper construction, we are guided by the fact 

that the legislature is presumed to have intended a reasonable, 

just, and constitutional result.

Kunkle v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2005 WY 49, ¶ 11, 109 P.3d 

887, 889-90 (Wyo. 2005) (citation omitted). Since we presume that the legislature 

enacted the statutes “with full knowledge of existing law, . . . we construe statutes in 

harmony with existing law, particularly other statutes relating to the same subject or 

having the same purpose.” Rodriguez v. Casey, 2002 WY 111, ¶ 9, 50 P.3d 323, 326 

(Wyo. 2002).
8

[¶18] Our first step is to determine whether the applicable statutes are ambiguous. 

A statute is unambiguous if its wording is such that 

reasonable persons are able to agree as to its meaning with 

consistency and predictability. A statute is ambiguous only if 

it is found to be vague or uncertain and subject to varying 

interpretations.

. . . .

When the words used are clear and unambiguous, a court 

risks an impermissible substitution of its own views, or those

of others, for the intent of the legislature if any effort is made 

to interpret or construe statutes on any basis other than the 

language invoked by the legislature. . . . If the language 

selected by the legislature is sufficiently definitive, that 

language establishes the rule of law. . . . This inhibition upon 

statutory construction offers assurance that the legislative 

efforts and determinations of elected representatives will be 

made effective without judicial adjustment or gloss.

Kunkle, ¶ 11, 109 P.3d at 890 (citations omitted) (internal quotation marks omitted).

[¶19] Regarding the mechanics of statutory interpretation, “we give effect to every 

word, clause and sentence, and construe them in pari materia.” Kunkle, ¶ 11, 109 P.3d at 

890. Moreover, we strive to avoid an interpretation that produces an absurd result,

Rodriguez, ¶ 9, 50 P.3d at 326, or that renders a portion of the statute meaningless. 

Kunkle, ¶ 11, 109 P.3d at 890.

We are guided by the full text of the statute, paying 

attention to its internal structure and the functional relation 

between the parts and the whole. Each word of a statute is to 

be afforded meaning, with none rendered superfluous. 

Further, the meaning afforded to a word should be that word’s 

standard popular meaning unless another meaning is clearly 

intended. If the meaning of a word is unclear, it should be 

afforded the meaning that best accomplishes the statute’s 

purpose. We presume that the legislature acts intentionally 

when it uses particular language in one statute, but not in 

another. If two sections of legislation appear to conflict, they 

should be given a reading that gives them both effect.
9

Rodriguez, ¶ 10, 50 P.3d at 326-27 (citations omitted).

[¶20] Finally, we are mindful of the

. . . well-known principle of law that courts are not free to 

legislate. The first rule of statutory construction is that 

legislative intent, not a court’s perception of fairness, 

controls. It is not the court’s prerogative to usurp the power 

of the legislature by deciding what should have been said. 

The courts must follow, and cannot extend, statutory 

definitions. For over a century, courts in Wyoming have 

recognized that it is their duty only to interpret and declare 

what the law is, not to be responsible for its defects. And of 

specific importance to the instant case is the precept that 

exceptions not made by the legislature in a statute cannot be 

read into it.”

Scott v. Scott, 918 P.2d 198, 200 (Wyo. 1996) (citation omitted).

[¶21] The statutes at issue read as follows:

§ 18-5-201. Authority vested in board of county 

commissioner; inapplicability of chapter to incorporated 

cities and towns and mineral resources.

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. However, nothing in W.S. 

18-5-201 through 18-5-208 shall be construed to contravene 

any zoning authority of any incorporated city or town and no 

zoning resolution or plan shall prevent any use or occupancy 

reasonably necessary to the extraction or production of the 

mineral resources in or under any lands subject thereto.

§ 18-5-207. Continuation of existing uses; effect of 

alteration or addition; future use after discontinuation of 

nonconforming use.

A zoning resolution enacted under the provisions of 

W.S. 18-5-201 through 18-5-206 shall not prohibit the 

continuance of the use of any land, building or structure for 
10

the purpose for which the land, building or structure is used at 

the time the resolution is adopted and it is not necessary to 

secure any certificate permitting such continuance. However 

the alteration or addition to any existing building or structure 

for the purpose of effecting any change in use may be 

regulated or prohibited by zoning resolution. If a 

nonconforming use is discontinued any future use of such 

land, building or structure shall be in conformity with the 

provisions of the resolution regulating uses in the area in 

which the land, building or structure is located.

Wyo. Stat. Ann. §§ 18-5-201; 18-5-207 (LexisNexis 2013).

[¶22] Both sides recognize that § 18-5-201 permits the County to exercise general 

zoning authority. They also agree that the first sentence of § 18-5-207 permits the 

continuance of pre-existing land uses despite subsequent changes in zoning regulations. 

From this point, the parties’ interpretations diverge. RST contends that, while the second 

sentence of § 18-5-207 creates a permissive exception that permits counties to regulate or 

prohibit the alteration of or addition to buildings or structures for the purpose of 

effecting any change in use, it does not permit counties to do the same for land uses 

because this sentence omits the word(s) “land” or “land use.” Arguing that the legislature 

intentionally omitted “land” or “land use,” RST notes that

[t]he Legislature chose to use the phrase “land, 

building or structure” four times in a single three-sentence 

paragraph circumscribing the power of a county to interfere 

with existing uses. Yet, in the sentence giving back limited 

powers with regard to expansion of those uses, the 

Legislature changed that phrase by omitting the word “land.”

[¶23] In contrast, the County stresses that legal nonconforming uses, although 

recognized in Wyoming as a vested right, are to be construed narrowly because they 

thwart the public policy behind comprehensive planning. When viewed in this context 

and read in pari materia, the County contends that the omission of “land” in the second 

sentence of § 18-5-207 creates ambiguity as to why it was omitted. The County next 

argues that when the statutory construction rules are applied, this Court cannot interpret 

§ 18-5-207 as RST advocates. The County argues that adopting RST’s interpretation 

would violate the rule that courts must avoid construing the statute in a manner that 

renders a part of it meaningless or that produces absurd results. First, the County 

contends that RST’s interpretation would render its broad zoning authority under § 18-5-

201 meaningless by allowing nonconforming uses to expand unregulated and without 

limit. Second, the County asserts that RST’s interpretation would lead to an absurd result 

because unrestrained nonconforming uses could become nuisances.
11

[¶24] We begin by noting that Title 18, Chapter 5 of the Wyoming Code contains the 

statutes that grant counties planning and zoning authority and prescribe the limits of that 

authority. In the present case, we only need to focus on article two and specifically 

§§ 18-5-201 and 18-5-207. It is also important to note that counties “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 v. Town of Wheatland, 2002 WY 12, 

¶ 14, 39 P.3d 409, 415 (Wyo. 2002). Thus, a county’s authority “to adopt a zoning 

ordinance is limited by state statute, and the general grant of power to [counties] 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.” Id.

[¶25] As the parties recognize, § 18-5-201 permits counties to regulate and restrict land 

uses in the unincorporated areas of the county. This zoning authority has limits. One 

limit is that this authority must be exercised in a manner that “promote[s] the public 

health, safety, morals and general welfare of the county.” Id. Furthermore, when a 

county issues a resolution pursuant to those ends, it must use reasonable means to 

implement the regulation. Snake River Brewing Co. v. Town of Jackson, 2002 WY 11, 

¶ 26, 39 P.3d 397, 407 (Wyo. 2002).

[¶26] Section 18-5-207 contains the other significant limitation, which, as we explain, 

contains some ambiguity. The first sentence reads:

A zoning resolution enacted under the provisions of 

W.S. 18-5-201 through 18-5-206 shall not prohibit the 

continuance of the use of any land, building or structure for 

the purpose for which the land, building or structure is used at 

the time the resolution is adopted and it is not necessary to 

secure any certificate permitting such continuance. 

Id. While § 18-5-201 grants counties general zoning authority, § 18-5-207 circumscribes 

that authority by permitting the continuance of uses that predate the adoption of a legal 

zoning resolution. We have also explained this limitation as a nonconforming use

exception or a grandfather exception.

A non-conforming use is a use which, although it does 

not conform with existing zoning regulations, existed 

lawfully prior to the enactment of the zoning regulations. 

These uses are permitted to continue, although technically in 

violation of the current zoning regulations, until they are 

abandoned. An exception of this kind is commonly referred 

to as a “grandfather” exception.
12

River Springs, Ltd. Liability Co. v. Bd. of Cnty. Comm’rs of Cnty. of Teton, 899 P.2d 

1329, 1334 (Wyo. 1995) (internal quotation marks omitted) (emphasis in original). This 

sentence of § 18-5-207 recognizes that the “right to continue a non-conforming use is a 

vested property right [that is] protected . . . by both federal and state constitutions.” 

Snake River Brewing Co., ¶ 10, 39 P.3d at 403.

3

[¶27] The second sentence of § 18-5-207 gives counties zoning authority over certain 

nonconforming uses by creating a permissive exception to the grandfather exception 

contained in the first sentence. The second sentence reads, “However the alteration or 

addition to any existing building or structure for the purpose of effecting any change in 

use may be regulated or prohibited by zoning resolution.” Id. Section 18-5-207 

unambiguously gives counties authority to regulate or prohibit alterations or additions to 

grandfathered buildings or structures when the alteration or addition effectuates a change 

in use of the grandfathered building or structure. It says nothing about changes in use of 

grandfathered lands.

[¶28] RST argues that the legislature specifically included “land” with “building or 

structure” four other times in § 18-5-207, but omitted the term “land” when it said that 

alterations or additions to existing buildings or structures could be regulated. This 

omission, RST claims, indicates that a county may not regulate his continued 

nonconforming use of his lands. RST misunderstands § 18-5-207. This statute simply 

states that a change to an existing building or structure for the purpose of changing the 

nonconforming use of the building or structure is subject to regulation. It makes no 

statement about change in use of land.

[¶29] The absence of a reference to “land” in the statutory provision about changes to 

buildings or structures does not imply that a change in use of grandfathered land is 

exempt from zoning regulations. The second sentence of § 18-5-207 simply means that 

zoning regulations apply to alterations of or additions to grandfathered buildings or 

structures when those modifications are made for the purpose of changing use. In 

essence, when an owner of a grandfathered building wishes to modify the building for 

the purpose of changing use, he must comply with zoning requirements (i.e., building 

permits or variances). This sentence has no applicability to a change in use of land. 

Thus, we hold that the second sentence of § 18-5-207 creates a permissive exception to 

the grandfather exception in the first sentence and that this permissive exception is 

limited to certain uses of buildings and structures and not uses of land.

[¶30] This determination does not resolve the issue presented in this case. Although the 

parties’ ambiguity arguments primarily concern the second sentence of § 18-5-207, the 

first sentence contains the real ambiguity—the geographic extent of the word “land.” 

 

3 We also noted that “[s]uch protection is generally stated in terms of due process of law.” Snake River 

Brewing Co. v. Town of Jackson, ¶ 10 n.2, 2002 WY 11, 39 P.3d 397 at 407 (Wyo. 2002).
13

Resolving this ambiguity is necessary to determine whether a county may regulate the 

expansion of a nonconforming land use under § 18-5-207. The statute is silent as to 

whether one may continue a pre-existing use of land throughout the whole parcel, only on 

the portions of the parcel affected at the time the zoning resolution was adopted, or to 

some area of land in between those alternatives. Essentially, we must determine which of 

these possibilities the legislature intended “land” in the first sentence of § 18-5-207 to 

refer to. Answering this question is the key to resolving this issue.

[¶31] The County’s position relies on an interpretation that a nonconforming land use is 

confined to its boundaries at the time a new zoning resolution affecting that use is 

adopted. The County contends that to hold otherwise would allow a nonconforming use 

to expand uncontrollably to the detriment of a county’s health, safety, and welfare. It 

provides examples of a small campground becoming a huge recreational vehicle resort 

site and of a small dump becoming “a multi-acre tire disposal site.” These hypotheticals, 

however, are inapposite because they fall within a different category of land uses—land 

uses that can occur on any suitable parcel of land. RST correctly recognizes that, unlike 

those uses, a gravel operation utilizes the natural resources that comprise the land itself, 

i.e., the land is a diminishing asset.4 As the Illinois Supreme Court explained in Du Page 

County v. Elmhurst-Chicago Stone Co. 165 N.E.2d 310, 313 (Ill. 1960):

This is not the usual case of a business conducted 

within buildings, nor is the land held merely as a site or 

location whereon the enterprise can be conducted indefinitely 

with existing facilities. In a quarrying business the land itself 

is a material or resource. It constitutes a diminishing asset 

and is consumed in the very process of use. Under such facts 

the ordinary concept of use, as applied in determining the 

existence of a nonconforming use, must yield to the realities 

of the business in question and the nature of its operations.

Because of this distinction in uses, we need not concern ourselves with the kind of land 

uses that the County hypothetically poses.

[¶32] A review of Title 18, Chapter 5, article 2 does not yield any clues as to the 

legislature’s intent regarding the meaning of “land” in § 18-5-207. Without any statutory 

guidance, we look to the common law. Other jurisdictions have commonly employed the 

doctrine of diminishing assets to address the unique issues pertaining to the use of land 

for mining and quarrying. To date, we have not addressed this doctrine. Although the 

 

4 Mineral extraction or non-gravel mining also falls within this category, but Wyo. Stat. Ann. § 18-5-201

(LexisNexis 2013) specifically limits a county’s zoning authority over this type of land use. Id.

(“However, . . . no zoning resolution or plan shall prevent any use or occupancy reasonably necessary to 

the extraction or production of the mineral resources in or under any lands subject thereto.”).
14

parties raised the doctrine of diminishing assets as a separate issue, we will address it 

here to resolve the ambiguity of § 18-5-207.

A. The Doctrine of Diminishing Assets

[¶33] American Jurisprudence aptly explains the policy underlying the doctrine of 

diminishing assets.

Application of the general rule that a nonconforming 

use may not be extended to land not so used prior to the 

enactment of a restrictive zoning ordinance may work a 

singular hardship where the use in question involves the 

removal of natural products from the earth. For example, 

quarries are particularly vulnerable because, by their very 

nature, they begin on one spot and spread to additional 

ground as the mineral reserve is exhausted. Such diminishingasset enterprises “use” all of the land contained in a particular 

asset, and as a practical matter, such use must begin at one 

spot and continue from there to the boundary of the land.

Courts, therefore, have respected the unique character of such 

diminishing-asset uses by permitting them to expand onto 

adjacent land.

83 Am. Jur. 2d Zoning and Planning § 569 (2014) (footnotes omitted); see also Stephan 

& Sons, Inc. v. Mun. of Anchorage Zoning Bd. of Exam’rs and Appeals, 685 P.2d 98, 

101-02 (Alaska 1984) (citing 6 R. Powell, The Law of Real Property, ¶ 871[iii] at 79C178 to -179 (Rohan rev. ed. 1979) (“[A]n owner of a nonconforming use may sometimes 

be found to have a vested right to use an entire tract even though only a portion of the 

tract was used when the restrictive ordinance was enacted.”). Another underlying policy 

that we find significant is that a business by nature expands and grows over time as 

demand increases. See Hansen Bros. Enter., Inc. v. Bd. of Supervisors of Nevada Cnty., 

907 P.2d 1324, 1349 (Cal. 1996) (recognizing “that the natural and reasonable expansion 

of a quarry business to meet increased demand is not an impermissible enlargement or 

change in the use of the property”).

[¶34] There appears to be a growing consensus among jurisdictions that apply the 

doctrine of diminishing assets to use the following three-prong test:

First, [the land owner] must prove that excavation 

activities were actively being pursued when the [Ordinance] 

became effective; second, [the land owner] must prove that 

the area that he desires to excavate was clearly intended to be 

excavated, as measured by objective manifestations and not 
15

by subjective intent; and, third, [the land owner] must prove 

that the continued operations do not, and/or will not, have a 

substantially different and adverse impact on the 

neighborhood.

Romero v. Rio Arriba County Comm’rs, 140 NM 848, ¶ 25, 149 P.3d 945, 951 (N.M. 

App. 2006) (quoting Town of Wolfeboro (Planning Bd.) v. Smith, 556 A.2d 755, 759 

(N.H. 1989)) (modifications in original); Town of West Greenwich v. A. Cardi Realty 

Assocs., 786 A.2d 354, 363 (R.I. 2001) (adopting Smith’s three-prong test); see also 83 

Am. Jur. 2d Zoning and Planning, supra, § 569. The Board only applied the second 

prong of this test, but the district court applied the entire test, finding that we would likely 

adopt it. Both parties propose that we adopt this test but dispute its application. We 

review the adoption of the doctrine of diminishing assets regardless of form de novo and 

its application under the substantial evidence standard. Where applicable, we also apply 

the arbitrary and capricious standard.

[¶35] Because the above quoted pronouncement of the doctrine of diminishing assets 

provides a reasonable and objective means of quantifying “land” as used in the first 

sentence of § 18-5-207, furthers important policies, and considers the impact of 

expansion on the neighborhood, adopting this test seems to be the best way to resolve the 

ambiguity of § 18-5-207 in a manner consistent with legislative intent. Therefore, we 

hold that to define the geographic extent of a protected, nonconforming land use 

involving a diminishing asset under § 18-5-207, we will require that the land owner or 

user prove each prong of the three-prong test quoted above. In so holding, we recognize 

that this test is highly fact dependent and will vary from case to case, especially for the 

second prong. Moore v. Bridgewater Twp., 173 A.2d 430, 437 (N.J. Super. App. Div. 

1961) (“It is difficult, and also dangerous, to attempt to fix standards applicable in all 

cases; each case must be decided on its own facts.”). Regarding the second prong, we do 

note “that excavation cannot occur simultaneously on the whole of the land.” Crumbaker 

v. Hunt Midwest Mining, Inc., 69 P.3d 601, 609 (Kan. 2003); Elmhurst-Chicago Stone 

Co., 165 N.E.2d at 313 (noting that gravel extraction businesses “cannot operate over an 

entire tract at once”). Thus, “if there were evidence of an intent to expand excavation to 

any other portion of the land at the time the zoning laws had been implemented, 

expanded excavation is not considered an unlawful nonconforming use.” Crumbaker, 69 

P.3d at 609.

[¶36] The County does not dispute that RST has proved the first prong—that he was 

actively conducting a gravel operation at the time the County’s LDRs became effective. 

The parties do dispute whether RST proved the second and third prongs. RST contends 

that the Board misinterpreted and misapplied the doctrine by restricting the size of his 

gravel operation to the acreage actually in use when the County’s LDRs became effective 

in 1978. RST further contends that he presented sufficient objective evidence to establish 
16

an intent to expand his operation to its natural limits and that the Board based its decision 

on improper findings of fact.

[¶37] Although the County agrees that we should adopt and apply the three-prong test, it

stresses that we should do so cautiously since expansion of nonconforming uses is 

disfavored. The County agrees with the Board’s conclusion that RST did not present 

sufficient objective evidence manifesting an intent to expand his gravel operation when 

the County’s LDRs became effective in 1978. Furthermore, the County maintains that 

RST did not present evidence on the third prong and that the evidence in the record on 

this prong actually goes against RST.

[¶38] Starting with the second prong, we conclude that substantial evidence does not 

support the Board’s conclusion that RST did not manifest intent to expand beyond three 

acres. To the contrary, the record contains sufficient objective evidence to demonstrate 

that RST did intend to expand. In their decisions, the hearing officer and the Board 

overemphasized the relative size of RST’s operation at the time the LDRs went into 

effect and its determination that an expansion constitutes a change in use. This emphasis 

ignores the nature of a business, especially a business that utilizes a diminishing asset, to 

expand and grow over time as demand increases. See Hansen Bros., 907 P.2d 1324, 1349 

(recognizing “that the natural and reasonable expansion of a quarry business to meet 

increased demand is not an impermissible enlargement or change in the use of the 

property”). The hearing officer and the Board also relied almost exclusively on a finding 

that RST did not prepare, designate, or cordon off areas he intended to excavate, which, 

they contend, he should have done to manifest intent to expand. In essence, the Board 

found that because RST did not “cordon off” additional land on his ranch as designated 

expansion area, he necessarily did not intend to expand. Nevertheless, the hearing officer 

and the Board cite no authority for this conclusion nor do they point to some evidence in 

the record that this is common practice within the gravel extraction industry.5Thus, the 

Board’s conclusion on this issue lacks a reasonable or sustainable basis to uphold it under 

the substantial evidence standard. Furthermore, the Board’s conclusion not only fails to 

satisfy the substantial evidence standard, it also fails to satisfy the arbitrary and 

capricious standard because it lacks adequate findings of fact and conclusions of law. 

Dale ¶ 23, 188 P.3d 561.

[¶39] Another reason to reject the imposition of a requirement to prepare or cordon off 

future areas of expansion is that it discourages the productive use of land, which is 

 

5 One court did consider a fence as one factor (but not the sole basis) that showed objective intent, but 

that case involved very different circumstances that made the fence significant. Moore v. Bridgewater 

Twp., 173 A.2d 430, 432 (N.J. Super. App. Div. 1961). In that case, the fence surrounded the perimeter 

of the property. Id. The fence was significant because the parcel at issue straddled the border of two 

jurisdictions and the majority of the quarrying activity took place on one side of that border. Id. Thus, 

the fence helped to demonstrate that quarrying was intended throughout the whole parcel in not just one 

but both jurisdictions.
17

contrary to Wyoming public policy. See Hulse v. First American Title Co. of Crook 

Cnty., 2001 WY 95, ¶ 34, 33 P.3d 122, 133 (Wyo. 2001) (recognizing the public policy 

of furthering productive use of land as one of the public policies supporting the 

establishment of private roads); see also Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 

289 (Wyo. 1991). “It is in the very nature of [gravel extraction] business that reserve 

areas be maintained which are left vacant or devoted to incidental uses until they are 

needed.” Elmhurst-Chicago Stone Co., 165 N.E.2d at 313.

For practical and economical reasons [a gravel 

operator] must begin operations at one given point and 

continue from there to a point on his lands where his natural 

resource ends or at his boundary line. For the same reasons, 

it is not feasible for him to quarry at different locations at the 

same time.

Township of Fairfield v. Likanchuk’s, Inc., 644 A.2d 120, 124 (N.J. Super. Ct. App. Div. 

1994). The evidence shows that RST has used the rest of the parcel for grazing cattle and 

has gradually extracted the areas near his current extraction sites as needed to grow his 

business. Additionally, in his 2010 mine permit application to the Wyoming Department 

of Environmental Quality, RST indicated that, to help control weeds, he would 

intentionally leave future extraction areas unexcavated until needed. This evidence 

demonstrates that RST intended to expand his gravel operation.

[¶40] Another reason to confine a gravel operation to a smaller area for small operations 

like RST’s is that the Wyoming Environmental Quality Act imposes a fifteen-acre limit 

(formerly ten-acre limit) on operations that wish to operate under the limited mining 

operation exemption. Wyo. Stat. Ann. § 35-11-401(e) (LexisNexis 2013). With this 

limited amount of acreage to work with, it makes little sense economically or practically 

for a gravel mine operator to have several one or two acre sites distributed throughout a 

larger parcel when a larger site is feasible. Similarly, confining an operation to a smaller, 

compact area reduces the number of roads that the operator must maintain and minimizes 

dust problems. Furthermore, RST’s neighbors have received aesthetic benefits by the 

confinement of the gravel operation to certain portions of the property rather than an 

operation that is sprawled throughout the property. As one court has explained, “It is 

quite obvious that an owner intending to carry on a quarrying operation acquires more 

land than he thinks he will need so that he will not be a source of nuisance to his 

neighbors.” Township of Fairfield, 644 A.2d at 124. Consequently, if RST’s gravel 

operation is to occupy just a small fraction of the total parcel, it benefits himself, his land, 

his neighbors, and the environment to confine the operation to a smaller area rather than 

operating on a patchwork of work sites scattered throughout the property.

[¶41] We also note that some cases have raised the concern that a gravel operation may 

try to expand without truly have intending to expand at the time the operation became a 
18

nonconforming use. See, e.g., Fred McDowell, Inc. v. Bd. of Adjustment of the Twp. of 

Wall, 757 A.2d 822 (N.J. Super. Ct. App. Div. 2000); Township of Fairfield, 644 A.2d at 

124-25; Stephan & Sons, 685 P.2d 98. Many of these cases, however, address situations

where an operation expanded or sought to expand to an adjacent parcel. Since this type 

of situation is not before us in this case, we will not address it. Aside from those cases, 

the concern of unwarranted expansion, while a valid one, is resolved by requiring 

objective evidence to establish the intent to expand.

[¶42] We also recognize the inherent tension between the general rule of disfavoring the 

expansion of nonconforming uses, Snake River Brewing Co. ¶ 11, 39 P.3d. 404, and the 

expansion of certain nonconforming uses permitted by the doctrine of diminishing assets. 

Because of the unique nature of uses involving diminishing assets, however, the very 

presence of an extraction operation on a parcel inherently, but not dispositively, suggests 

an intention to expand on that particular parcel. The Illinois Supreme Court has gone so 

far as to hold that “in cases of a diminishing asset the enterprise is ‘using’ all that land 

which contains the particular asset and which constitutes an integral part of the operation, 

notwithstanding the fact that a particular portion may not yet be under actual excavation.”

Elmhurst-Chicago Stone Co., 165 N.E.2d at 313. Although this position is not entirely 

consistent with the test we adopt today, it underscores our recognition of the practice of 

gravel operations to leave undisturbed areas they intend to excavate later.

[¶43] In addition to critiquing the Board’s rationale, we also examined the record to see 

if RST did in fact carry his burden to present sufficient objective evidence manifesting 

his intent to expand at the time the zoning regulation went into effect. Our examination 

reveals that RST presented uncontroverted evidence that the Board’s decision addressed 

inadequately. First, RST presented evidence that he began the operation with two initial 

excavation sites. Claudette Higgins, RST’s ex-wife, and Bill Moyer both testified about 

the location of those two sites on different parts of the property. The 1978 aerial 

photograph of RST’s land shows that these two sites are separated by at least several 

hundred feet. The separation of the sites and the distance between them points 

objectively toward an intent to expand throughout the parcel.

[¶44] Second, RST presented evidence that the location of his main operation is in an 

open area conducive to safe expansion. The aerial photos show the gravel extraction site 

is surrounded by open agricultural land. RST’s 2010 mine application also states that the 

area where he conducts his gravel operation is at least 300 feet away from any 

neighboring properties. Initially, one of the sites was near RST’s border with the Melody 

Ranch property. Once RST’s neighbors started construction on the Melody Ranch 

housing development near his border, however, RST moved his operations away from 

that border. These facts also objectively indicate an intent to expand.

[¶45] Third, RST presented the testimony of Mr. Moyer, who testified that RST tested

excavation methods in various places. Mr. Moyer also testified that from the beginning, 
19

RST had aspirations of becoming competitive with and as big as the other gravel pits in 

the area. This testimony further demonstrates objectively an intent to expand.

[¶46] Finally, RST presented evidence that the income from his gravel business in the 

1970s provided more of his total income than any of his other businesses. Both Ms. 

Higgins and RST testified that the majority of their income came from the gravel 

business, even before the 1978 LDRs became effective. Ms. Higgins further testified that 

their income from the ranching business was “skimpy” and “not good enough.” She also 

testified that she and RST intended to make a living from the gravel business income. 

This intention was supported by her testimony that although the operation began small, it 

grew rapidly, even in the 1970s, due to increased demand. Moreover, RST increasingly 

spent more of his time on the gravel business than he did his other businesses. All of this 

evidence also supports an intent to remain in the gravel business, which would necessitate 

expansion. Because more than three decades have elapsed since the enactment of the 

County’s LDRs, we recognize that RST had particular difficulty in coming forward with 

any other evidence on this prong.6

[¶47] We also highlight that the Board ratified the hearing officer’s findings that the 

witnesses who presented this evidence were credible and that the testimony of Ms. 

Higgins in particular was “entitled to considerable weight.” Since the burdened party’s 

uncontested testimony that the hearing officer deems credible is sufficient to satisfy the 

burden of proof, the Board’s disregard of this evidence in reaching its decision is 

troubling. Ikenberry, 5 P.3d at 803. Under these circumstances, we find that RST 

presented sufficient evidence regarding the second-prong to carry his burden by a 

preponderance of the evidence and that the Board’s findings of fact and conclusions of 

law were against the great weight of that evidence.

[¶48] Finally, we consider the third prong—whether RST proved that continued 

operation of his gravel business does not and will not have a substantially different and 

adverse impact on his neighborhood. Neither the hearing officer nor the Board addressed

this prong, but they also did not apply the three-prong test. Finding that we would likely 

adopt the proposed three-prong test, the district court concluded that there was no 

evidence that a continued use would not have a substantially different and adverse impact 

on the neighborhood. Although RST did not adequately address the third prong in his 

arguments, an examination of the record reveals that there is evidence regarding this

prong.

[¶49] The County argues that expansion of RST’s gravel operation resulted in numerous 

complaints, citing a 1998 DEQ inspection report and the testimony of the County’s code 

 

6 We also note that, regardless of the reason, the County did not begin investigating a potential violation 

of its LDR’s until 1995, nearly two decades after the LDR’s became effective.
20

compliance officer Jennifer Anderson. The DEQ inspection report merely states that the 

“inspection was conducted in response to several calls from concerned citizens in the 

Jackson area who expressed concern over recent expansion of the mining operation and 

increased activity.” The report, however, is of little value for two reasons: (1) it is nearly 

sixteen years old and (2) it does not explain the nature of those concerns. Ms. Anderson 

testified that she had received only about six calls regarding noise from RST’s crusher 

from 2006 to 2011—an average of one call per year.7

[¶50] In support of RST, an internal County memo dated October 12, 1995, states that 

RST was willing to move his processing site to a different part of his property to help 

mitigate any disturbance of his neighbors and that he was willing to use some noise 

mitigation if necessary. RST testified that, when the Melody Ranch property—the 

property on his eastern border—began to be developed for residential use, he voluntarily 

moved his gravel crusher away from its former location near the eastern border to, in his 

words, “take the pressure off the Melody.” When asked, RST could not recall what year 

development began. From our examination of the aerial photographs in the record, it 

appears that the portion of the Melody Ranch along RST’s property did not undergo 

development until sometime between 2001 and 2003. This is significant in that it shows 

that the developers proceeded with the development even though RST had been running a 

gravel operation on the neighboring property for more than two decades prior. At some 

point, RST erected a berm between his operation and the eastern border of his property.

Later, RST also erected berms around his pit and processing site to help mitigate any 

disturbance of his neighbors.

[¶51] As we consider this prong, we also note that the Wyoming Environmental Quality 

Act (“EQA”) contains provisions to help prevent a gravel operation from having a 

substantially different or adverse impact on its neighborhood. For instance, a mining 

operation must be setback a minimum of 300 feet from “any existing occupied dwelling, 

home, public building, school, church, community or institutional building, park or 

cemetery unless the landowner’s consent has been obtained.” Wyo. Stat. Ann. §§ 35-11-

401(e)(vi)(A), 35-11-406(m)(viii) (LexisNexis 2013). Furthermore, RST’s operation 

currently occupies the maximum acreage allowed under the former limits of the EQA’s 

limited mining exception, precluding further expansion without permission from the 

DEQ.8§ 35-11-401. The permitting process requires RST to notify his neighbors and the 

local community of his expansion plans. § 35-11-406(g)(j). An interested person can 

potentially trigger a contested case hearing by objecting to the proposed expansion. 

 

7 We note, however, that RST and Mr. Moyer testified undisputedly that a screener makes more noise 

than a crusher.

8

In 2013 the legislature amended this section to permit limited mining operations to occupy up to fifteen 

acres of disturbed land. The issue of whether RST may now expand up to fifteen acres under the limited 

mining exception is not before us.
21

Thus, the EQA provides a mechanism for determining whether an expanded gravel 

operation will have a substantially different and adverse impact on the neighborhood.

[¶52] Taking all of this into consideration, the expansion of RST’s operation has not had 

a substantially different and adverse impact on his neighborhood. This is particularly true 

for most of RST’s neighbors, since they did not become his neighbors until years after 

RST had established and expanded his operation. Therefore, we find that RST has 

carried his burden on the third prong of the test by a preponderance of the evidence.

[¶53] Having examined the record, the Board’s decision, and the applicable law, we 

hold that the Board’s decision regarding the application of the doctrine of diminishing 

assets lacks substantial evidence to support it and is arbitrary and capricious. We further 

hold that RST carried his burden by a preponderance of the evidence by demonstrating: 

(1) that he objectively manifested an intent to expand his gravel operation on his 300-acre 

parcel at the time the County’s LDRs became effective in 1978, and (2) that continued 

operation of his gravel business will not have a substantially different and adverse effect 

on his neighborhood. Therefore, under § 18-5-207 RST has a vested right to expand his

gravel operation on the 300-acre parcel on which the operation is located without

unauthorized regulatory interference from the County, provided that he complies with 

other applicable laws, such as the EQA and the DEQ’s regulations. Accordingly, we 

hold invalid the portions of the Board’s Order that require RST to reduce the size of his 

operation to three acres and that limit his extraction volume to not more than 15,000 

cubic yards or 17,000 tons per year.

I. The DEQ’s and the County’s Roles in Regulating Gravel Mining Operations

[¶54] The next issue for our consideration is determining to what extent, if any, that 

counties may regulate gravel mining operations that are already subject to DEQ 

regulation under the EQA. RST asserts that the Board’s order is an improper exercise of 

authority that conflicts with DEQ’s regulatory authority over his operation under the 

EQA. In support, he maintains that, since counties are political subdivisions of the state, 

they only have the powers that the state grants them. Next, he details the EQA’s 

requirements that apply to his gravel operation and contends that they are comprehensive, 

precluding the County from regulating bonding, reclamation, or expansion.

[¶55] The County argues that, consistent with our holding in River Springs, the EQA 

permits counties to regulate mining operations as long as the county’s regulation does not 

prohibit all mining and does not conflict with DEQ regulations. The County further 

contends that the EQA also permits counties to exercise their regulatory role to advise the 

DEQ of the scope and nature of any applicable grandfathered rights. Because it relies on 

the Board’s and district court’s holdings regarding the construction of the zoning statutes 

and the application of the doctrine of diminishing assets, the County contends that both 
22

itself and the DEQ have separate regulatory authority over different acres and different 

aspects of RST’s gravel operation.

[¶56] This is a question of law that we review de novo. Because we held that the size 

restriction and the limits on extraction volume of the Board’s order are invalid, the 

reclamation and bonding requirements are the only remaining aspects of the Board’s 

Order that RST contests.

[¶57] We have addressed this issue before. In River Springs, we noted that the State has 

granted both DEQ and the County authority to regulate gravel mines through their 

respective statutory provisions. 899 P.2d at 1335-36; Wyo. Stat. Ann. §§ 18-5-201 

through 208; 35-11-401 et seq. (LexisNexis 2013). Accordingly, “our task is to 

harmonize the several statutory provisions and endeavor to afford legitimate effect to all 

of them,” leaving us with “no occasion to invoke the doctrine of preemption.” River 

Springs, 899 P.2d at 1335. The County’s regulatory authority is limited by the authority 

granted to the DEQ because counties have “no sovereign power other than that granted 

by the legislature.” River Springs, 899 P.2d at 1335-36. Thus, the County may only 

regulate in a manner that does not conflict with or duplicate DEQ regulations properly 

promulgated under the EQA. Id. at 1336. As we discussed above, the County’s 

regulatory authority is further limited to regulations that “promote the public health, 

safety, morals and general welfare of the county.” § 18-5-201. Moreover, the County 

may not regulate in a manner inconsistent with § 18-5-207 such that the nonconforming 

use can no longer continue. Snake River Brewing Co., ¶ 10, 39 P.3d 403.

[¶58] Although the EQA generally requires a mining operation to obtain a permit from 

the DEQ, the limited mining exception of the EQA exempts qualifying mining operations 

from the permit requirement if they comply with certain other requirements. Wyo. Stat. 

Ann. § 35-11-401(e)(vi)(k) (LexisNexis 2013). For nearly twenty years, RST has 

operated his gravel business under the limited mining exception. Thus, to resolve this 

issue as it currently stands, we need only consider the portions of the EQA that set forth 

the limited mining exception. The limited mining exception’s ongoing regulations can be 

summarized as requiring an operator to comply with setback requirements, bonding

requirements, reclamation requirements, and annual reporting requirements. Id. Clearly, 

the requirements of the Board’s Order pertaining to bonding and reclamation duplicate 

and conflict with the DEQ’s regulatory authority. Because of our decision regarding 

expansion, the County’s argument that it has regulatory authority over different acres and 

different aspects of RST’s gravel operation fails. Thus, the County has no basis for 

imposing bonding and reclamation requirements on RST’s gravel operation. River 

Springs, 899 P.2d at 1336; see also Ahearn v. Town of Wheatland, 2002 WY 12, ¶ 14, 39 

P.3d 409, 415 (Wyo. 2002) (holding that “the general grant of power to municipalities to 

adopt zoning laws in the interest of public welfare does not permit the local governing 
23

bodies to override the state law and the policies supporting it”). Accordingly, we hold 

that the bonding and reclamation requirements of the Board’s Order are void.9

II. Laches

[¶59] The final issue that RST raises is whether the County’s enforcement action is 

barred by laches. RST contends that the County should be barred from enforcing its 

LDRs against him because they failed to do so for nearly twenty years after the 1978 

LDRs became effective. He claims that the evidence in the record demonstrates that his 

operation was clearly visible from a major county road and that the County had bought 

gravel from him. Consequently, RST argues that the County’s actions and failure to 

enforce its LDRs induced him to believe that his operation was legal and that he could 

expand his operation. The County asserts that laches is not applicable to a governmental 

entity when it is enforcing a public or governmental right. Furthermore, the County notes 

that the Board found the evidence insufficient to establish that the County had bought 

gravel from RST. Accordingly, the County maintains that RST failed to establish that the 

County committed an affirmative act of misconduct.

[¶60] The standard of review for the defense of laches is abuse of discretion. Cathcart 

v. Meyer, 2004 WY 49, ¶ 13, 88 P.3d 1050, 1058 (Wyo. 2004). “Laches is defined as 

such delay in enforcing one’s rights that it works to the disadvantage of another.” 

Thompson v. Bd. of Cnty. Comm’rs of the Cnty. of Sublette, 2001 WY 108, ¶ 17, 34 P.3d 

278, 282 (Wyo. 2001). A party asserting laches must establish two elements: (1) 

inexcusable delay and (2) injury, prejudice, or disadvantage to the defendants or others.

Id.

[¶61] The second element is dispositive. RST has not established that he has suffered 

injury, prejudice, or disadvantage. This is particularly true since we hold in his favor on 

the preceding two issues. Even if we had not, however, RST has been able to conduct his 

business for nearly twenty years without interference from the County. Since the County 

began investigating his gravel operation, he has been able to continue to operate up until 

now. Therefore, we find that RST has failed to establish the defense of laches.

CONCLUSION

[¶62] Our review of this case leads us to conclude that the Board’s Order was an 

improper agency determination and exercise of authority except for the uncontested 

 

9 We note, however, that RST has applied for a permit that would allow him to expand beyond the ten 

acres his operation currently occupies. The regulatory scheme for mining operations operating under 

permit is more extensive than the scheme for the limited mining exception. Thus, applying the same 

analysis from River Springs, Ltd. Liability Co. v. Bd. of Cnty. Comm’rs of Cnty. of Teton, 899 P.2d 1329 

(Wyo. 1995), any other regulations that the County may attempt to impose on RST may not conflict with 

the additional EQA regulations that would apply to RST’s operation if he receives a permit.
24

regulation pertaining to hours of operation. To summarize our holdings, § 18-5-207 is 

ambiguous regarding the extent of its protection of nonconforming land uses. To resolve 

this ambiguity, we adopt the three-prong test of the doctrine of diminishing assets. The 

application of the three-prong test to this case reveals that RST may expand his gravel 

operation on the parcel on which it lies to the extent that it complies with the 

requirements of the EQA and its accompanying regulations. This protection also 

precludes the County from limiting the volume of gravel extracted. Moreover, the 

bonding and reclamation requirements of the Board’s Order duplicate and conflict with 

the regulatory authority of the DEQ under the EQA and are thus invalid. Finally, RST 

failed to establish the defense of laches. We reverse and remand for further proceedings 

in accordance with this opinion.