### IN THE SUPREME COURT, STATE OF WYOMING

20 20 WY 12 7

APRIL TERM, A.D. 20 20

September 28, 2020

POWDER RIVER BASIN RESOURCE COUNCIL,

Appellant (Petitioner),

v.

WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY and BROOK MINING COMPANY, LLC,

App ellees (Responde nts).

DAVID FISHER and MARY

BREZIK

- FISHER,

Appellants (Petitioners),

v.

WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY and BROOK MINING COMPANY, LLC,

Appellees (Respondents). S

- 20

- 0016, S

- 20

- 0017

A

ppeal from the District Court of Laram ie County

The Ho norable Catherine R. Rogers , JudgeRepresenting Powder River Basin Resource Council :

Sha nn on R. Anderson, Powder River Basin Resource Coun cil, Sheridan, Wyo ming. Argument by Ms. Anderson.

Representing David Fisher a nd Mary Brezik

- Fisher :

Jay A. Gilber t z, Yonkee & Toner, LLP, Sheridan, Wyoming. A rgument by

Mr. Gilbertz.

Representing Department of Environmental Quality :

Bridget L. H ill, Atto rney General; James Kaste , Deputy A ttorney General ; Matthew Van Wormer , Senior Assistant Attorney General . Argu m e nt by

Mr. Van Wormer.

Represen ting Brook Mining Co., LLC :

Patrick R. Day, JoAnna S. DeWald, and Thomas L. Sansonetti, Holland & Hart, LLP, Chey enne, Wyoming. Ar gument by Mr. Day.

Before FOX and KAUTZ , JJ

. , and PERRY

, DAY , and LAVERY , DJ J.

NOT I CE: This opinion is subject to formal revi sion before publ ication in Paci fic Reporter T hird. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other for mal errors so t hat correction may be made befor e final pub lication in

the permanent volum e.1 DAY

, District Ju dge

.

[¶1] Appellee, Brook Mining Company, applied to the Wyoming Department of Environmental Quality (WDEQ) for a permit to develop and operate a new surface coal

m i ne in Sheridan County, Wyoming. Pursuant to certain agency rules that allowed for a contested case hearing before a forma l agency decision, t he Environmental Quality Council (EQC) held a contested case hearing. The EQC concluded the permit application

w as deficient in certain areas and issued a decision that the application must be denied. In accordance with that EQC decision, t he Director of WDEQ then denied the permit.

Th e Director’s decision was appealed to the district court. The dis trict court re versed the

decision of the Director and the EQC. Appellant s, Powder River Basin Resource Council (PRBRC) and Mr. and Mrs. Fisher, appeal the district court’s decision

. Concurrent to this app e al, Brook Mining Co mpany revised its permit appli cation and tha t application was recently approved

. We find that the issues presented in this appeal are now moo t

.

ISSUES

[¶2] The parties raised several issues but a single issue of justiciability is dispositive :

Whether the issues in this appeal continue t o present a ju sticiable controversy.

FACTS

[¶3] Brook Mining Company submitted its application to develop a new sur f ace coal

mine in October 2014. The permit application was then subject to several rounds of

review by WDEQ staff. In December 2016, W DEQ staf f determined t he application was technically complete and r ecommend e d it for publication. Pursuant to Wyo. Stat. Ann. § 35

- 11

- 406(j) (LexisNexis 2015 )

, the application was published for four consecutive

weeks. The final publication wa s followed by a 30

- d ay public comm ent and objection period pursuant to Wyo. Stat. Ann. § 35

- 11

- 406(k)

. Several parties filed written objections to the permit, including PRBRC and the Fishers. The parties then requested an

informal conference with the Director.

[¶4] As the Wyo ming Environme ntal Quality Act (WEQA) existe d in Decembe r 2016,

there were two options once an informal conference was requested

. One option was for

the Director to have th e informal conference

. Wyo. Stat. Ann. § 35

- 11

- 406(p) (LexisNexis 2015 )

, amended b y Wyo. Stat. A nn. § 35

- 11

- 406(p)(ii) (Le xisNexis 2020

Su p p. )

. If that occurred, then the Director was required to issue a decision to approve or deny the permit application within sixty days of that conference. Wyo. Stat. Ann. § 35

- 11

- 406(p) (LexisNexis 2015 )

, amended by Wyo. Stat. Ann. § 35

- 11

- 406(p)(iii) (L e xisNexis 2020 Supp. ). A party c ould then appeal that decision to t he EQC for a2 contested case hearing

. Wyo. Stat. Ann. § 35

- 11

- 406(k) (LexisNexis 2015 )

. T he EQC’s

decision could then be appealed t o the d istrict c ourt. Wyo. Stat. A nn. § 16

- 3

- 114 (a) (Le x i sNexis 201 5 )

.

[¶5] The second option woul d arise if the Director denie d the request for an informal

conference. In that instance , the matter would proceed to the EQC for a contested case hearing. Wyo. Stat. Ann. § 35

- 11

- 406(k) (Lexis Ne xis 201 5 )

. Then, onc e the EQC issue d its decision, the Director must either issue or deny the permit within fi fteen days. Wyo.

Stat. Ann. § 35

- 11

- 406(p) (LexisNexis 201 5 )

, amended by Wyo. Stat. Ann. § 35

- 11

- 406(p)(iii) (LexisNexis 20 20 Supp. )

. That de cisi on c ould then be ap p e aled to the d istrict

c ourt. Wyo. Stat. Ann. § 16

- 3

- 114(a)

.

[¶6] The second path was followed in this case. The Director denied the request for an

informal conference , noting that multiple objections h ad been filed a nd t hat an informal

conference was theref o r e unlikely to be successful

. PRBRC and the Fishers then requested a contested case hearing. A seven

- day contested case hear i n g was held. The EQC issued a decision that the permit application was deficient in t he areas of hydrology, subsidence, and blasting. T he EQC denied the permit application but also ordered the

c ompany to revise its permit application and resubmit it for review to WDEQ. The Director of WDEQ then issued an order deny ing the p ermit applicat ion

. T h is appeal

followed.

[¶7] While this appeal was pending, Brook Mining Company submitted its revised permit application. After the public comm ent period, an informal conference was

re q u ested. The Director held that informal conference. T he Director th en issued a decision that approved the revised permit application

. P RBRC has initiated a separate administrative appeal of that decision.

[¶8] Also

, while this appeal was pending, the regulatory struc ture for informal

conferences was revised

. 2020 Wyo. Sess . Laws ch. 35 ( codified at Wyo. Stat. Ann. § 35

- 11

- 406(k) ( LexisNexis 2020 Supp. ) )

. Instead of the two

- path system, there is now only one system : a n informal conference with the Director is now man dato ry and a contested case hearing can o n l y occur after t he Director issues a decision. Id.

STANDARD OF REVIEW

[¶9] We review an agency’s decision as if it came directly to us , with no deference to

the d istrict c ourt. E.g.

, HB Family Ltd. P’ship v. Teto n C n t

y . Bd. of C n ty. Comm’rs , 2020 WY 98, ¶ 3 2

, 468 P

. 3d 1081

, 1091 (Wyo. 2020) ( citations omitted).

[¶10] However, a court should not hear a case where there has been a change in

circumstances

, occurring either before or after a case has been filed

, that elimin ates the3 controversy. E.g.

, Operation Save Am. v

. C ity of J ackson , 2012 WY 51

, ¶ 21, 275 P.3d 438, 448 (Wyo. 20 12). When no controversy exists, courts will not consume their time dealing with moot questions. In re Birkholz , 2019 WY 19, ¶ 2, 434 P.3d 110 2, 1 103

– 04 (Wyo. 2019) (citations omitted).

The d octrine of mootness encompasses those circumstances which destroy a previously justiciable controversy. This doctrine represents the time element of standing by requiring that the interests of the partie s wh ich were originally

sufficient to confe r standi n g persi s t throughout the duration of

th e suit. Thus, the central question in a mootness case is “whether decision of a once living dispute continues to be justified by a sufficient prospect that the deci sion will have an impact on the parties.”

O

peratio n Save A m

. , 2012 WY 51, ¶ 21

, 275 P.3d at 448 (citations o mitted). A case is moot when the determination of an issue will have no practical effect on the existing
controversy. Therefore, “if events occur dur ing the pendency of an appeal that caus e a

case to beco m e moot or make determination of the issues unnecess ary, we will dismiss

it.” In re SNK , 2005 WY 30, ¶ 6, 108 P.3d 836, 838 (Wyo. 2005) (citations omitted).

[¶11] There are exceptions to the mootness d octr ine : (1) if the matter is one of great

p ublic i m portanc e or interest, (2) where necessary to provide guidance to state agencies and to produce uniformity in the decisions of the district courts, or (3) for controversies capable of r epet ition y et ev ading review. E.g.

, Operation Save Am. , 2012 W Y 51, ¶ ¶ 22

– 23

, 275 P.3d at 448

– 49

.

DISCUSSION

[¶12] In this case, two events occurred that change the circumstances of the case. One change in circumstances occurred when W DEQ approved the revise d pe rmit ap plication

. Another change in circumstances occurre d when t h e legis l ature change d the regulatory

structure for the approval of new coal mine applications by removing the opportunity for an EQC contested case hearing prior to the Director’s decis ion. The C ourt addres ses both changes in circumstance in its a nalysis

. 1

1 The revised permit application was approve d after oral argu m ent occurred in this case

. Thus, Brook Mining Company’s briefing and arguments on this issue centered on whether the change in the regulatory

str ucture met the exceptions to the mootness doctrine.4 Ex c eptions to the Mootness Doctrine

[¶13] The substantive issues raised in this appeal relate to whether the EQC acted within its authority in holding a contested case hearing and wheth er t he WDEQ Director was

bound to the EQC’s decision. Brook M i ning Company as s erts that the se substantive

issues are capable of repetition yet evading review. Under the “cap able of repetition, yet evading review” exception to mootn e ss, two requirements must be met: (1) “ the duration of the challenged action must be too short for c o mpletion of litigation prior to its cessation or expiration

, ” and (2) “ there must be a reaso nabl e expec tation that the same complaining party will be subj e cted to the same action again.” E.g.

, Operation Save Am.

, 2012 WY 51 , ¶ 30 , 275 P.3 d a t 450

.

[¶14] In th i s case, neither element is met. First, Brook Mining Company’s revised mining permit applica tion has be en approved. Therefore, the duration of the challenged

action ( the lack of approval of the original permit application ) is too short fo r completion

of t hi s litig atio n because that application has been replaced by a revis e d permit application

, that application has been approved , and a separate administrative appeal of that agency decision has been initiated. Second, even if Brook Mining C o mpany applied

f

o r another permit to mine at some point in the future, the application w ould not be subject to the pre

- decision contested case proceeding with the EQC due to the change in

t he regu latory structure

. The Court therefore cannot find t hat thi s matter is capab l e of repetition ye t evading review.

[¶15] The exception to provide guidance to the district courts or to administrative agencies similarly does not apply in this case becaus e of the ch ange to the regulatory structure for approving new m ining p e r mits. The subs t antive issue s this Court is invited

to decide center around the regulatory opportunity to have a contested case hearing

before the Director issues a decision. That opp ortu nity no longer exists under Wyoming

law

.

[¶16] The “great publi c import a n ce” exception a l so does not apply. That exception is generally reserved for issues of constitutional magnitude. Operation Save Am. , 2012 WY 51, ¶ 25

, 275 P.3d a t 4 49 ; Jolley v. State Loan & Inv. Bd. , 2002 WY 7, ¶ 9, 38 P.3d 1073, 1078 (Wyo. 200 2 ). Thi s is a case of ad m inistrative review of an agency action, an area where the Court has declined to extend that exception. Jolley , 2002 WY 7, ¶ 1 0 , 38 P.3d

at 1078

– 79 (“We decline to exp and the doctrine to encompass alleged violations of an agency’s rules a n d regulations th a t do not directly implicate the constitutionality of legislation or an agency’s actions or inactions. ” ).

[¶17] Th e Court concludes that this matter no longer presents a jus ticiabl e controversy that would have an impact on the parties. Brook M i n ing Company’s r e vised permit application has been approved by WDEQ and is now the subject of a separate5 administrative appeal

. A decision on the procedural propr iety of the WDEQ decision on the first application , under a regula tory structure tha t has si n c e been amended b y the legislature, would be advisory. No exception to the mootness doctrine warran ts t he

issuance of such a n opinion. 2

CONCLUSION

[¶18] Because Brook Mining Company’s revised permit application was approved , and

because the regulatory struct u r e that gave ris e to this appeal is no longer in effect, the issues presented in this appeal have be come moot

. A ny decision of this Court with regard to this appe al would be advisory. The appeal is dismissed

.

2 WDEQ invites this Court to vacate the d i strict cou r t de c is i on

. Counsel points to the vacatur practice used in federal courts in response to cases that h ave become moot (1) by happenstance or (2) by the

unilateral actions of the party that prevailed in the lower court

. E.g.

, U.S

. Ban c orp Mor t g

. Co

. v

. Bonner

M

all P’ship , 513 U.S

. 18, 25 , 115 S.Ct. 386, 391

– 92, 130 L.Ed.2d 233 (1994); 19 Solid Waste Dep’t

Mech s. v

. City of Albuquerque

, 76 F .3d 1142, 1144

– 45 (10th Cir

. 1996)

. Vacatur can be an equitable remedy in some cases but is l i mited in app l ication be cau se it is an “extraordinary remedy.” U.S

. Bancorp Mortg

. Co. , 513 U.S

. at 25

– 28 , 115 S.Ct. at 391

– 93

. This issue was not briefed by al l parties and t he

Court is unable to evaluate whether the changed circumstances in this case m e et t he legal criteria f or happenstance or unilateral action as described by U.S

. Bancorp Mortg

. Co

. This Court therefore

concludes that this is not the case to evaluate or adopt the doctrine of vacatur applied in U.S

. Bancorp Mortg

. Co

. and its progeny

.