Roger Seherr-Thoss, D/B/A Rst Sand & Gravel And/Or Rst Excavation and Trucking v. Teton County Board of County Commissioners and Teton County Planning Director

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.
S-13-0086
TETON COUNTY BOARD OF
COUNTY COMMISSIONERS and
TETON COUNTY PLANNING
DIRECTOR,

Appellees
(Respondents).

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.
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”),1 issued 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.

1
 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.

2
 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.

3
[¶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).

4
[¶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

5
 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 long-
standing 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.

6
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).

7
[¶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.

8
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

9
 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.

10
[¶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.

11
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).

12
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.”).

13
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 diminishing-
asset 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 79C-
178 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

14
 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

15
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.5 Thus, 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.

16
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

17
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,

18
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.

19
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.

20
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

21
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

22
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.

23
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.

24