By Daniel Bendtsen
Via Wyoming News Exchange
LARAMIE — Members of Albany County Clean Water Advocates expressed concern Tuesday about Albany County Attorney Peggy Trent’s decision to dismiss the county’s lawsuit against Tumbleweed Express, a gas station on the east side of Laramie that overlays the Casper Aquifer, which provides about half of Laramie’s drinking water.
Trent had originally sought court action to block the gas station, which has only been open intermittently during the last decade, from renovating and continuing to sell gasoline.
However, Trent’s now opted to drop her request for an injunction after reluctantly concluding that Albany County’s regulations don’t provide enough power to legally stop the gas station’s renovations and sale of gas.
Trent said it would have irresponsible to continue a lawsuit she didn’t believe she could win.
“No one likes the answer, but you have to accept it,” she said. “The commissioners would face under Rule 11 of our attorney ethics that the county would pay for that defense attorney, who’s a lot more expensive than me, and a penalty, and possibly me being sanctioned for taking a lawsuit forward when I didn’t have information (to support the case).”
Trent presented a lengthy argument defending the dismissal at a Tuesday meeting.
Afterward, however, Albany County Clean Water Advocates emailed the Laramie Boomerang a statement saying the organization still believes “the Albany County Zoning Resolution now in place gives the county the authority to address the threat presented by re-starting operations at the gas station formerly known as Tumbleweed Express in the aquifer protection zone.”
“Now that the Albany County and Prosecuting Attorney is withdrawing the complaint for injunction filed by the county to stop activity at the Tumbleweed site, ACCWA believes the county should consider other remedies,” the group said.
Even with the moratorium in place, Martin Greller of Albany County Clean Water Advocates urged county officials on Tuesday to keep a close eye on the gas station.
“The Tumbleweed question should not be thought of as over,” Greller said. “We have been dealt with by people in a manner that is fast and loose, and when that happens, we look to leadership to be strong and steadfast. … The citizens count on you to continue in your vigilance.”
The comments from the public came as commissioners formalized the 90-day moratorium on development in the aquifer protection zone at the special Tuesday meeting.
Trent said that the possibility of a future expansion by Tumbleweed Express was part of the reason for the moratorium.
“Let me tell you right now, we’re not done with this landowner,” she said. “At this point, Tumbleweed has finished their project. They have barreled over us and just kept going. … However, I have heard rumors and I have speculation that there is more expansion that is coming out there.”
The water protection advocates did express support Tuesday for the emergency moratorium on development Albany County commissioners had tentatively issued Monday.
ACCWA, however, “calls upon the county commissioners to reinstate action to prevent Tumbleweed Express from resuming operation.”
“Surely the county does not wish to send the message that it can be ‘barreled over’ as was described in today’s special county commission meeting, especially for a use that was continued illegally and is now flatly prohibited in the aquifer protection zone because it is an obvious threat to public health,” the group stated.
If Tumbleweed does pursue an expansion, Trent said the moratorium will apply and she’ll immediately file an injunction, expecting to be able to get an emergency action from a judge.
The county attorney originally filed for an injunction against Tumbleweed Express on April 23 after learning the gas station was replacing some of its equipment.
Gas stations are banned in the aquifer protection zone, but Tumbleweed Express had been grandfathered in.
However, under county rules, the gas station would lose its grandfather status if it ceased “continual operations” for two years.
County officials had originally assumed, partially based on Tumbleweed Express’s lack of a “weights and measures” license, that the gas station had ceased operations for at least a two year period in the last decade.
“I felt that was sufficient to filing for the complaint because I questioned how much else was it not in compliance,” Trent said. “But I only had a hunch at that point.”
However, after filing for an injunction, Trent received extensive documentation from three state agencies that showed that the gas station had maintained all other needed licenses in the last decade. The longest period the gas station has apparently gone without selling gasoline is the 17 months it’s been since former owners Bill and Joyce Webster shut Tumbleweed Express down in September 2018 and sold the business.
Despite the concerns of water advocates, Trent said the bulk of the evidence weighs heavily in favor of Tumbleweed Express’s maintaining its grandfather status.
When water advocates at Tuesday’s meeting started to express a desire for commissioners to take further action against the gas station, Trent left and returned with a stack of documents a foot high — all of which she said was evidence compiled in the Tumbleweed Express case — to show that it was only after exhausting all possible legal arguments that she concluded she doesn’t have a case to shut the gas station down.
Trent said Tuesday the case revealed an urgent need to update the Casper Aquifer Protection Plan to allow the county to have greater power to block some development on the east side of town.
“Unfortunately, until you attempt to enforce your regulations, you don’t really understand or appreciate the gaps or problems with your regulations,” Trent said. “That’s why I asked for a moratorium, because we can’t have any more development until we fix our regulations.”
She did express continued frustration with Tumbleweed Express for not cooperating with the county’s requests for a stoppage of construction.
“Even before there was an opportunity to talk with that landowner, it was immediately apparent that they were going to proceed without going through a process or discussion with the county,” she said. “In my 30-year career, I’ve never seen anything that amounts to this in an injunction action where a landowner doesn’t stop, resulting in (the injunction) hearing being continued until today’s date.”
She also said there were “games played” by Tumbleweed Express’s attorney, Jason Tangeman, regarding his motions to request continuances to file a response to Trent’s allegations.
Sarah Gorin, a former member of the county’s planning and zoning commission who helped draft the county’s aquifer regulations, told the Laramie Boomerang after Tuesday’s meeting that she’s disappointed with Trent’s rationale for dismissing the case.
For example, because the Albany County Zoning Resolution says that grandfathered businesses can’t be “expanded beyond the use in existence at the time of adoption of this resolution,” Gorin said she thinks there’s a decent case to be made that, since the Websters had been operating Tumbleweed seasonally at the time the zoning resolution was last updated, a return to regular use of the gas station would be a “expansion” of its use.
Gorin said she wants the county to still consider all options.
“I just don’t feel like that has happened,” she said.
When Tumbleweed Express began its renovations, Trent said she too felt the work was an expansion banned by county rules.
“It’s always been my position that this is an expansion and I will not waver from that,” she said. “But what’s important is that I’m not an engineer, and when I went to engineers, that’s not what I heard. (They said) it was a repair.”
The moratorium will be heard by the county’s planning and zoning commission at 7 p.m. today.
If the planning board votes against the development ban, Trent said case law dictates that it must be immediately lifted.
Trent said she is “concerned” about the planning board’s decision, and said she feels two of the five members have conflicts of interest.
“Some of the commissioners have property in the aquifer protection zone,” she said, adding that she wants those two members of the planning board to recuse themselves from the vote.
Commissioner Pete Gosar notes that the planning board sits at the pleasure of county commissioners.
“I just hope that they’ll understand that (when the moratorium) is approved today, there’s direction from the (county) commission,” he said