IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 22

OCTOBER TERM, A.D. 2019

February 19, 2020

TRUDY L. EISELE, Laramie County 

Treasurer and KENNETH GUILLE, 

Laramie County Assessor,

Appellants

(Respondents),

v.

THE TOWN OF PINE BLUFFS,

Appellee

(Petitioner).

S-19-0037

Appeal from the District Court of Laramie County

The Honorable Timothy C. Day, Judge 

Representing Appellants:

Mark T. Voss, Laramie County Attorney, Cheyenne, Wyoming.

Representing Appellee:

Alexander Davison and Caleb C. Wilkins of Patton and Davison, LLC, Cheyenne, 

Wyoming. Argument by Mr. Wilkins. 

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, 

Wyoming 82002, of any typographical or other formal errors so that correction may be made before 

final publication in the permanent volume.
1

DAVIS, Chief Justice.

[¶1] The Town of Pine Bluffs owns and operates a daycare facility. Laramie County 

assessed property taxes on the facility based upon its conclusion that it was not used 

primarily for a governmental purpose. Pine Bluffs appealed, following the administrative 

process to its end. The County Board of Equalization ruled against the Town, and the State 

Board of Equalization affirmed that decision. The district court ruled in favor of the Town. 

We reverse the district court’s decision and reinstate the order of the County Board.

ISSUES

[¶2] The County Treasurer and County Assessor, Appellants, present this issue:

Was the Laramie County Board of Equalization’s affirmance 

of the Laramie County Assessor’s denial of a request for 

exemption from taxation, for a daycare facility operated by the 

Town of Pine Bluffs, in accordance with law, not arbitrary, 

capricious, [or] an abuse of discretion, and supported by 

substantial evidence in the record?

FACTS

[¶3] The facts in this case are largely undisputed. Pine Bluffs began offering daycare

services in the 1970s to address a public need for childcare. At the time, there were no 

daycare services in Pine Bluffs. The facility was operated initially in part of the community 

center, but in 2009 it was moved to a separate building. As approved in a special election, 

Pine Bluffs used optional sales tax revenue to purchase and renovate the new facility. 

[¶4] Over the years, private daycare providers in Pine Bluffs have come and gone. When 

a private daycare facility opened in 2015, the Town considered closing its operation. 

However, the governing body determined that there was still a need to provide daycare

options. As the Mayor of Pine Bluffs testified at the hearing before the County Board;

[T]hese private [daycare facilities] in our small town have just 

come and gone too often to take the chance on doing away with 

what we felt was a sure opportunity [to provide] service to the 

community.

[¶5] For a variety of reasons, Pine Bluffs has a particular need for daycare options that 

has not been met by the private sector in terms of quality, types, and stability of services. 

Daycare services became even more important when local schools changed to a four-day 

school week. In addition, the Pine Bluffs facility offers a preschool program that teaches 
2

social skills, ABCs, numbers, and colors. Children in the daycare center are also given 

lessons in Spanish and sign language. 

[¶6] Pine Bluffs has never intended to earn a profit from its daycare services. The center 

has always operated at a fiscal loss. The Town is willing to incur these losses to offer safe 

and stable daycare to the public. 

[¶7] In 2015, the Town filed a complaint against the County Treasurer and County 

Assessor, seeking to enjoin them from assessing and collecting property taxes on the 

daycare facility. Town of Pine Bluffs v. Eisele, 2017 WY 117, ¶ 1, 403 P.3d 126, 127 (Wyo. 

2017). We ruled that the district court had correctly dismissed the complaint because, 

under the circumstances presented, the Town’s remedy was available only through the 

administrative process. Id. ¶ 27, 403 P.3d at 132. In other words, the Town must appeal 

the assessment of its daycare facility to the County Board of Equalization, and “appeal 

from an unfavorable decision there to the state board of equalization . . . and from there to 

petition the district court for review, and ultimately to appeal to this Court.” Id. ¶ 5, 403 

P.3d at 128.

[¶8] In 2016, the Town did just that. It filed requests for exemption, which the County 

Assessor denied. Pine Bluffs appealed to the County Board, which held a hearing on the 

matter, and issued a decision affirming the County Assessor’s denial. The Town appealed 

to the State Board, which affirmed the County Board’s decision. Continuing on with the 

required administrative process, the Town appealed to the district court, which ruled in 

favor of Pine Bluffs and reversed the decision of the State Board. The County Assessor 

and County Treasurer took the final step in the process, and appealed to this Court.

STANDARD OF REVIEW

[¶9] Our review of this agency action is governed by the Wyoming Administrative 

Procedure Act. Section 16-3-114(c) (LexisNexis 2019) provides in relevant 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:

. . . .
3

(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.

We have long recognized that substantial evidence “is more than a mere scintilla” of 

evidence; it is “such relevant evidence as a reasonable mind might accept as adequate to 

support [an agency’s] conclusion.” Howard v. Lindmier, 67 Wyo. 78, 87, 214 P.2d 737, 

740 (1950). It is also well established that “[q]uestions of law are reviewed de novo, and 

‘[c]onclusions of law made by an administrative agency are affirmed only if they are in 

accord with the law.’” Maverick Motorsports Grp., LLC v. Dep’t of Revenue, 2011 WY 

76, ¶ 12, 253 P.3d 125, 128 (Wyo. 2011) (quoting Bowen v. State, Dep’t of Transp., 2011 

WY 1, ¶ 7, 245 P.3d 827, 829 (Wyo. 2011) (quoting State ex rel. Workers’ Safety & Comp. 

Div. v. Garl, 2001 WY 59, ¶ 9, 26 P.3d 1029, 1032 (Wyo. 2001))).

[¶10] Significantly, in this case our review is focused on the decision of the County Board. 

We do not defer to the decision of the State Board or to that of the district court. Britt v. 

Fremont County Assessor, 2006 WY 10, ¶ 17, 126 P.3d 117, 123 (Wyo. 2006); Laramie 

County Bd. of Equalization v. Wyoming State Bd. of Equalization, 915 P.2d 1184, 1188 

(Wyo. 1996). As we have explained: 

Since in this case the county board was the finder of the fact 

and the state board heard no additional testimony, we will treat 

the state board as an intermediate level of review and accord 

deference only to the county board’s findings of fact. Thus, 

the primary focus of our review will be whether the county 

board’s decision was lawful and supported by substantial 

evidence. 

Union Pac. R.R. v. Wyo. State Bd. of Equalization, 802 P.2d 856, 859 (Wyo. 1990).

[¶11] Pine Bluffs contends that the decision on whether its property is “used primarily for 

a governmental purpose” is a finding of ultimate fact, and therefore subject to de novo 

review. The district court agreed, relying on Mountain Vista Retirement Residence v. 

Fremont County Assessor, 2015 WY 117, ¶ 4, 356 P.3d 269, 272 (Wyo. 2015).
4

[¶12] Pine Bluffs is correct that the key question in this case is whether the town’s daycare

facility is “used primarily for a governmental purpose.” However, Pine Bluffs and the 

district court overemphasize the importance of how the County Board’s answer to that 

question is characterized.

1 Whether we treat the County Board’s answer to that question 

as a finding of ultimate fact or as a conclusion of law, we review its decision de novo, while 

we review the findings of fact underlying that decision to see if they are supported by 

substantial evidence. We have applied this standard of review in a number of similar cases. 

E.g., Oakley v. Fremont County Cmty. Coll. Dist., 2010 WY 106, ¶¶ 8-9, 236 P.3d 1004, 

1006-07 (Wyo. 2010); Deromedi v. Town of Thermopolis (In re Deromedi), 2002 WY 69, 

¶¶ 8-9, 45 P.3d 1150, 1153 (Wyo. 2002); Town of Thermopolis v. Deromedi (In re Town 

of Thermopolis), 2002 WY 70, ¶¶ 11-12, 45 P.3d 1155, 1159-60 (Wyo. 2002).

DISCUSSION

[¶13] Article 15, Section 12 of the Wyoming Constitution provides:

The property of the United States, the state, counties, 

cities, towns, school districts and municipal corporations, 

when used primarily for a governmental purpose, and public 

libraries, lots with the buildings thereon used exclusively for 

religious worship, church parsonages, church schools and 

public cemeteries, shall be exempt from taxation, and such 

other property as the legislature may by general law provide.

Wyo. Const. art. 15, § 12. Implementing this constitutional provision is Wyo. Stat. Ann. 

§ 39-11-105 (LexisNexis 2019), which states in pertinent part:

(a) The following property is exempt from property 

taxation: 

. . . . 

(v) Property of Wyoming cities and towns owned 

and used primarily for a governmental purpose 

including:

(A) Streets and alleys and property used for 

the construction, reconstruction, maintenance 

and repair of streets and alleys;

1

It would have been helpful on review had the County Board made a better effort to set forth its findings 

of basic fact, and then differentiate those findings from its ultimate findings and conclusions of law. 

Moreover, conclusions of law should carefully reflect applicable regulatory, statutory, and constitutional 

language, and pertinent language derived from cases that have interpreted the same.
5

(B) Property used to furnish sewer and water 

services;

(C) City or town halls, police stations and 

equipment, traffic control equipment, garbage 

collection and disposal equipment and lands and 

buildings used to service and repair the halls, 

stations or equipment;

(D) Parks, airports, auditoriums, cemeteries, 

golf courses, playgrounds and recreational 

facilities. Any charges for the use of the facilities 

shall not exceed the cost of operation and 

maintenance to qualify for the exemption;

(E) Personal property used exclusively for the 

care, preservation and administration of city or 

town property;

(F) Parking lots operated on a nonprofit basis.

[¶14] Child care facilities are not listed in this statutory provision. However, this list is 

meant to be illustrative, not exclusive. Deromedi, ¶ 13, 45 P.3d at 1154 (“By the statutory 

use of the term ‘including’ the legislature intends to include other purposes even though 

not specifically enumerated.”). Any municipal property that is “used primarily for a 

governmental purpose” is exempt from property taxation. Indeed, the initial presumption 

is that municipal property is exempt. 

Although under Title 39, taxation of property is 

generally the rule, the exemptions provided for by § 39-11-

105(a)(v) require that we apply the rule that where the 

established policy of the state is to exempt publicly owned 

property, the burden is placed on the taxing authority to 

establish taxability. City of Cheyenne v. Bd. of County 

Comm’rs of the County of Laramie, 484 P.2d 706, 708-09 

(Wyo. 1971). The mere ownership of property by a town does 

not exempt the property; it must also be used primarily for 

governmental purposes. Id. at 709. When a town uses the 

property in a proprietary manner, the property is not exempt 

from taxation. Town of Pine Bluffs v. State Board of 

Equalization, 79 Wyo. 262, 288, 333 P.2d 700, 710 (Wyo. 

1958). The taxable status of property owned by a governmental 
6

entity must be determined as a question of fact by the use made 

of the property. City of Cheyenne v. Sims, 521 P.2d 1347, 1349 

(Wyo. 1974).

Deromedi, ¶ 10, 45 P.3d at 1153-54.

[¶15] We have recognized that “[t]he term ‘governmental purpose’ is not readily 

amenable to precise definition and such determination is largely dependent upon the 

circumstances presented in each case.” City of Cheyenne v. Board of County Comm’rs, 

484 P.2d 706, 708 (Wyo. 1971). For guidance in its decision, the County Board relied on 

a rule promulgated by the Wyoming Department of Revenue, which states in relevant part:

(a) Publicly owned property is not, per se, exempt from 

taxation. The property is exempt only “when used primarily 

for a governmental purpose.” 

(b) The phrase “governmental purpose” cannot be precisely 

defined. The following considerations should be evaluated:

(i) If a service or function is obligatory (one the 

governmental entity must perform as a legal duty 

imposed by statute), the function is governmental and 

the associated property is exempt.

(ii) If a service is rendered gratuitously, supported 

by taxes, and for the public welfare or enjoyment 

generally, the property associated with providing such 

service is exempt.

(iii) Property owned by a governmental entity acting 

in its proprietary capacity is not exempt, (e.g. where a 

city enters the field of private competitive business for 

profit or into activities which may be and frequently are 

carried on through private enterprises).

(iv) Governmental property subject to the payment of 

service (user) fees is not exempt unless the specific use 

is provided by statute (e.g. public sewer and water 

services).

Wyo. Dep’t of Revenue Rules, Ch. 14, § 5 (2015). 
7

[¶16] The County Board, in its Findings of Fact, Conclusions of Law and Order, made 

findings of fact that correlate with this regulation, this one in particular:

The Assessor appropriately assessed the factors [listed in this 

regulation] and found a daycare is not an obligatory function –

one that Pine Bluffs or any municipality has a legal duty to 

perform. Second, the Pine Bluffs’ daycare center is not a 

service that is provided gratuitously – Pine Bluffs charges a fee 

for daycare services; (iii) the daycare center is a proprietary 

function – or a service that is frequently carried on through 

private enterprises; and (iv) the daycare service is provided for 

a service fee and is not one that is specifically exempt by Wyo. 

Stat. § 39-11-105(v).

We examine the record to determine whether these findings of fact are supported by 

substantial evidence.

[¶17] During the County Board’s hearing, the County Assessor testified that there was a 

statutory list of governmental facilities in Wyo. Stat. Ann. § 39-11-105 that are tax exempt. 

He noted that the list includes “parks, airports, auditoriums, cemetery, golf courses, 

playgrounds and recreational facilities,” but contains no mention of daycare centers. He 

testified that he was not aware of any other governmental entity in Laramie County that 

operated a daycare center. He testified that, to his knowledge, there is no statutory mandate 

for municipalities to provide daycare services. The Treasurer of the Town of Pine Bluffs 

agreed that she was unaware of any state statute requiring municipalities to operate daycare

centers. Whether this testimony is considered factual or whether these are legal assertions, 

it serves as substantial evidence that daycare is not an obligatory municipal function.

[¶18] The County Assessor testified that the Pine Bluffs daycare facility charged fees. He 

referred to an exhibit that included “clippings from the [Pine Bluffs] newspaper . . . when 

it started as a daycare, opened as a daycare, and that they were charging fees.” The Pine 

Bluffs Treasurer provided more updated information, indicating that the daycare facility 

had recently increased the fees it charged. The record contains substantial evidence to 

support a finding that the daycare facility charges for its services, or in other words, that 

the service is not rendered gratuitously.

[¶19] The County Assessor testified that daycare was a service typically offered by private 

entities. We have said that when a municipality “enters a zone of private business, or into 

activities which may be and frequently are carried on through private enterprises, that its 

activities become proprietary.” Town of Pine Bluffs v. State Board of Equalization, 79 

Wyo. 262, 292, 333 P.2d 700, 711 (1958) (citation omitted). The Town Treasurer testified 

that there was a privately-operated daycare facility in Pine Bluffs, and that private daycare

centers had operated in Pine Bluffs “on and off throughout the years.” The Mayor of Pine 
8

Bluffs acknowledged that offering the same service as a private entity was a form of 

competition with that private entity. Together, these witnesses provided substantial 

evidence to support a finding that the daycare center operates in a proprietary capacity.

[¶20] The County Assessor testified, as discussed previously, that the Pine Bluffs daycare

facility charged a fee. This was confirmed by the Pine Bluffs Treasurer. The Assessor and 

the Treasurer also testified that they knew of no statute providing for a municipal daycare

facility. This provides substantial evidence to support a finding that the daycare facility 

was governmental property subject to the payment of fees and not specifically exempted 

by statute.

[¶21] Based on these factual findings, the County Board concluded that the Pine Bluffs 

daycare facility did not qualify as tax exempt. Specifically, it concluded:

10. Applying the facts of this instant matter, Pine Bluffs’ 

daycare center is not an obligatory function – one that Pine 

Bluffs or any municipality has a legal duty to perform. Pine 

Bluffs’ daycare center is not a service that is provided 

gratuitously – Pine Bluffs charges a fee for daycare services. 

Pine Bluffs’ daycare center is a proprietary function – or a 

service that is frequently carried on through private enterprises. 

Pine Bluffs’ daycare service is provided for a service fee and

is not one that is specifically exempt by Wyo. Stat. § 39-11-

105(v).

11. Thus, the property owned by Pine Bluffs and used in 

connection with its daycare facility does not qualify for tax 

exempt status.

(Emphasis in original.) We must determine whether the County Board committed any 

errors of law in reaching these conclusions.

[¶22] Pine Bluffs’ only explicit challenge with regard to these legal conclusions is an 

assertion that “there is a potential conflict” between subsection (b)(iv) of the Rules and the 

“statute related to service fees for governmentally-owned property.” It is, however, 

unnecessary for us to answer that question, because even if we agreed with Pine Bluffs’ 

assertion that the County Board made an error of law in applying subsection (b)(iv), Pine 

Bluffs claimed no specific error of law related to the County Board’s conclusions that the 

Pine Bluffs daycare facility was not tax exempt under subsections (b)(i), (b)(ii), and (b)(iii).

[¶23] As a more generalized objection to the County Board’s legal conclusions, Pine 

Bluffs contends that the daycare facility is used primarily for a governmental purpose, and 
9

the County Board erred in deciding otherwise.2 In its brief, Pine Bluffs asserts that it is 

“clear from the record that the exclusive purpose of the Daycare is to provide unique 

daycare services that are necessary.” Pine Bluffs provided a more comprehensive version 

of its argument before the County Board, which summarized the Town’s position as 

follows:

Pine Bluffs asserts that the ultimate issue is whether or not the 

Pine Bluffs daycare is serving primarily a governmental

purpose.

In support of its contention, Pine Bluffs argued that the daycare facility:

1) is a function essential to the operation of 

government, one that the public needs;

2) is intended to and does in fact operate at a loss;

3) has been around providing services to residents 

for a long period of time, when private 

alternatives have come and gone;

4) is a case where a local government is offering a 

service for the safety, protection, [and] education 

of its citizens that cannot and has not been 

offered by the private sector;

5) is not intended to compete with the private 

sector.

“Further,” Pine Bluffs asserted, “the daycare center provides a safe and educational venue 

for children, and public safety is the first thing on the list of governmental purposes.” 

2 Pine Bluffs points out that the County Board “did not make a finding on the primary purpose of the 

Daycare – the one relevant question to the legal analysis.” We agree that no such ultimate conclusion was 

explicitly stated, but none was necessary. The County Board did conclude that the County Assessor 

appropriately assessed the regulatory factors that guide the determination of whether a facility serves 

primarily a governmental function. The County Board also concluded, as noted in ¶ 21, that “Pine Bluffs’ 

daycare center is a proprietary function.” Because the Department of Revenue and this Court have already 

distinguished between a governmental function and a proprietary one in which the government enters an 

activity that may be and frequently is carried on through private enterprise, see ¶ 24, the County Board did 

not need to further conclude that the primary purpose of the daycare was not a governmental one. 
10

[¶24] However laudable it may be for a town to provide daycare services, and however 

important those services may be to the public, we cannot ignore that: (1) there is substantial 

evidence in the record to support the County Board’s finding that daycare is typically and 

frequently carried on by private enterprise; (2) that case law and regulation establish that a 

municipality engaged in activities that may be and frequently are carried out by private 

enterprises are acting in their proprietary capacity, Pine Bluffs, 79 Wyo. at 291-92, 333 

P.2d at 711-12; Wyo. Dep’t of Revenue Rules, Ch. 14, § 5(b)(iii); see also Biscar v. 

University of Wyoming Bd. of Trs., 605 P.2d 374, 376 (Wyo. 1980) (“Where the activity 

has historically been carried on by a private corporation . . . it is proprietary.” (internal 

citations omitted)); (3) that the County Board correctly applied the pertinent law to the 

facts of this case; and (4) that after careful review, we simply cannot find that the County 

Board’s decision constituted reversible error.

[¶25] We reverse the district court’s decision and reinstate the order of the County Board.