IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 127

 APRIL TERM, A.D. 2020

September 28, 2020

POWDER RIVER BASIN RESOURCE 

COUNCIL,

Appellant

(Petitioner),

v.

WYOMING DEPARTMENT OF 

ENVIRONMENTAL QUALITY and BROOK 

MINING COMPANY, LLC,

Appellees

(Respondents).

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

Appeal from the District Court of Laramie County

The Honorable Catherine R. Rogers, Judge
Representing Powder River Basin Resource Council:

Shannon R. Anderson, Powder River Basin Resource Council, Sheridan, 

Wyoming. Argument by Ms. Anderson.

Representing David Fisher and Mary Brezik-Fisher:

Jay A. Gilbertz, Yonkee & Toner, LLP, Sheridan, Wyoming. Argument by 

Mr. Gilbertz.

Representing Department of Environmental Quality:

Bridget L. Hill, Attorney General; James Kaste, Deputy Attorney General;

Matthew VanWormer, Senior Assistant Attorney General. Argument by 

Mr. VanWormer.

Representing Brook Mining Co., LLC:

Patrick R. Day, JoAnna S. DeWald, and Thomas L. Sansonetti, Holland & Hart, 

LLP, Cheyenne, Wyoming. Argument by Mr. Day.

Before FOX and KAUTZ, JJ., and PERRY, DAY, and LAVERY, DJJ.

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

DAY, District Judge.

[¶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 

mine in Sheridan County, Wyoming. Pursuant to certain agency rules that allowed for a 

contested case hearing before a formal agency decision, the Environmental Quality 

Council (EQC) held a contested case hearing. The EQC concluded the permit application 

was deficient in certain areas and issued a decision that the application must be denied. 

In accordance with that EQC decision, the Director of WDEQ then denied the permit. 

The Director’s decision was appealed to the district court. The district court reversed the 

decision of the Director and the EQC. Appellants, Powder River Basin Resource Council 

(PRBRC) and Mr. and Mrs. Fisher, appeal the district court’s decision. Concurrent to 

this appeal, Brook Mining Company revised its permit application and that application 

was recently approved. We find that the issues presented in this appeal are now moot.

ISSUES

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

Whether the issues in this appeal continue to present a 

justiciable controversy.

FACTS

[¶3] Brook Mining Company submitted its application to develop a new surface coal 

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

review by WDEQ staff. In December 2016, WDEQ staff determined the application was 

technically complete and recommended 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 was followed by a 30-day public comment 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 Wyoming Environmental Quality Act (WEQA) existed in December 2016, 

there were two options once an informal conference was requested. One option was for 

the Director to have the informal conference. Wyo. Stat. Ann. § 35-11-406(p)

(LexisNexis 2015), amended by Wyo. Stat. Ann. § 35-11-406(p)(ii) (LexisNexis 2020

Supp.). 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) 

(LexisNexis 2020 Supp.). A party could then appeal that decision to the EQC for a 
2

contested case hearing. Wyo. Stat. Ann. § 35-11-406(k) (LexisNexis 2015). The EQC’s 

decision could then be appealed to the district court. Wyo. Stat. Ann. § 16-3-114(a)

(LexisNexis 2015).

[¶5] The second option would arise if the Director denied 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) (LexisNexis 2015). Then, once the EQC issued

its decision, the Director must either issue or deny the permit within fifteen days. Wyo. 

Stat. Ann. § 35-11-406(p) (LexisNexis 2015), amended by Wyo. Stat. Ann. § 35-11-

406(p)(iii) (LexisNexis 2020 Supp.). That decision could then be appealed to the district 

court. 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 had been filed and that an informal 

conference was therefore unlikely to be successful. PRBRC and the Fishers then 

requested a contested case hearing. A seven-day contested case hearing was held. The 

EQC issued a decision that the permit application was deficient in the areas of hydrology, 

subsidence, and blasting. The EQC denied the permit application but also ordered the 

company to revise its permit application and resubmit it for review to WDEQ. The 

Director of WDEQ then issued an order denying the permit application. This appeal 

followed.

[¶7] While this appeal was pending, Brook Mining Company submitted its revised 

permit application. After the public comment period, an informal conference was 

requested. The Director held that informal conference. The Director then issued a 

decision that approved the revised permit application. PRBRC has initiated a separate 

administrative appeal of that decision.

[¶8] Also, while this appeal was pending, the regulatory structure 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: an informal conference with the Director is now mandatory and a 

contested case hearing can only occur after the 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 district court. E.g., HB Family Ltd. P’ship v. Teton Cnty. Bd. of Cnty. Comm’rs, 2020 

WY 98, ¶ 32, 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 eliminates the 
3

controversy. E.g., Operation Save Am. v. City of Jackson, 2012 WY 51, ¶ 21, 275 P.3d 

438, 448 (Wyo. 2012). When no controversy exists, courts will not consume their time 

dealing with moot questions. In re Birkholz, 2019 WY 19, ¶ 2, 434 P.3d 1102, 1103–04 

(Wyo. 2019) (citations omitted).

The doctrine 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 parties which were originally 

sufficient to confer standing persist throughout the duration of 

the 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 decision will have an 

impact on the parties.”

Operation Save Am., 2012 WY 51, ¶ 21, 275 P.3d at 448 (citations omitted). A case is 

moot when the determination of an issue will have no practical effect on the existing 

controversy. Therefore, “if events occur during the pendency of an appeal that cause a 

case to become moot or make determination of the issues unnecessary, 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 doctrine: (1) if the matter is one of great 

public importance 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 repetition yet evading review. E.g., Operation Save Am., 2012 WY 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 WDEQ approved the revised permit application. 

Another change in circumstances occurred when the legislature changed 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 decision. The Court addresses both 

changes in circumstance in its analysis.

1

 

1 The revised permit application was approved after oral argument occurred in this case. Thus, Brook 

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

structure met the exceptions to the mootness doctrine.
4

Exceptions 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 whether the WDEQ Director was 

bound to the EQC’s decision. Brook Mining Company asserts that these substantive 

issues are capable of repetition yet evading review. Under the “capable of repetition, yet 

evading review” exception to mootness, two requirements must be met: (1) “the duration 

of the challenged action must be too short for completion of litigation prior to its 

cessation or expiration,” and (2) “there must be a reasonable expectation that the same 

complaining party will be subjected to the same action again.” E.g., Operation Save Am., 

2012 WY 51, ¶ 30, 275 P.3d at 450.

[¶14] In this case, neither element is met. First, Brook Mining Company’s revised 

mining permit application has been approved. Therefore, the duration of the challenged 

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

of this litigation because that application has been replaced by a revised permit 

application, that application has been approved, and a separate administrative appeal of 

that agency decision has been initiated. Second, even if Brook Mining Company applied 

for another permit to mine at some point in the future, the application would not be 

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

the regulatory structure. The Court therefore cannot find that this matter is capable of 

repetition yet evading review.

[¶15] The exception to provide guidance to the district courts or to administrative 

agencies similarly does not apply in this case because of the change to the regulatory 

structure for approving new mining permits. The substantive issues this Court is invited 

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

before the Director issues a decision. That opportunity no longer exists under Wyoming

law.

[¶16] The “great public importance” exception also does not apply. That exception is 

generally reserved for issues of constitutional magnitude. Operation Save Am., 2012 WY 

51, ¶ 25, 275 P.3d at 449; Jolley v. State Loan & Inv. Bd., 2002 WY 7, ¶ 9, 38 P.3d 1073, 

1078 (Wyo. 2002). This is a case of administrative review of an agency action, an area 

where the Court has declined to extend that exception. Jolley, 2002 WY 7, ¶ 10, 38 P.3d 

at 1078–79 (“We decline to expand the doctrine to encompass alleged violations of an

agency’s rules and regulations that do not directly implicate the constitutionality of 

legislation or an agency’s actions or inactions.”).

[¶17] The Court concludes that this matter no longer presents a justiciable controversy 

that would have an impact on the parties. Brook Mining Company’s revised permit 

application has been approved by WDEQ and is now the subject of a separate 
5

administrative appeal. A decision on the procedural propriety of the WDEQ decision on 

the first application, under a regulatory structure that has since been amended by the 

legislature, would be advisory. No exception to the mootness doctrine warrants the 

issuance of such an opinion.2

CONCLUSION

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

because the regulatory structure that gave rise to this appeal is no longer in effect, the 

issues presented in this appeal have become moot. Any decision of this Court with 

regard to this appeal would be advisory. The appeal is dismissed.

2 WDEQ invites this Court to vacate the district court decision. Counsel points to the vacatur practice 

used in federal courts in response to cases that have become moot (1) by happenstance or (2) by the 

unilateral actions of the party that prevailed in the lower court. E.g., U.S. Bancorp Mortg. Co. v. Bonner 

Mall P’ship, 513 U.S. 18, 25, 115 S.Ct. 386, 391–92, 130 L.Ed.2d 233 (1994); 19 Solid Waste Dep’t 

Mechs. v. City of Albuquerque, 76 F.3d 1142, 1144–45 (10th Cir. 1996). Vacatur can be an equitable 

remedy in some cases but is limited in application because 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 all parties and the 

Court is unable to evaluate whether the changed circumstances in this case meet the legal criteria for 

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.