The Albany County Commission was presented with a petition Tuesday that calls for the county to take some action to shut down Tumbleweed Express, a gas station on the east side of Laramie that lies atop the Casper Aquifer.
Teri Lund presented the petition, which she said had 1,200 signatures of mostly “voters, or young future voters, who live in or near Laramie,” during the public comment period of the commissioners’ meeting.
The petition asks the county to “stop the re-opening” of the gas station, which has been operating largely seasonally for the last decade.
Lund said the petition was distributed at several downtown businesses and events, as well as on Change.org.
In response, Commissioner Heber Richardson said the petition was “well-received,” but he still feels the county lacks the legal authority to shut down Tumbleweed.
“(Tumbleweed’s new owners) did do their research and they did know that they could sell fuel,” he said. “We looked at all the ways we could vet that and make sure that what they were doing, they were legally allowed to do, and they are. And the reason is that they never closed. They never stopped selling fuel — not for 24 months continuously, and that was the standard. They never went 24 months without selling fuel, like it or not.”
In April, Albany County Attorney Peggy Trent initially filed for an injunction against the gas station when she believed the business lost its grandfather status under the Casper Aquifer Protection Plan.
However, after more legal research, she and the commissioners decided to drop the lawsuit.
Trent has said she no longer believes the county has the grounds to win the case and that it would be likely that Tumbleweed would be able to seek damages and attorney fees from the county if the lawsuit continued.
In fact, after Trent filed to dismiss the lawsuit, Tumbleweed Express’s attorney, Jason Tangeman, filed for damages regarding the gas station’s “diminished value of the land,” including damages for “loss of good will consisting of benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality and other circumstances resulting in probable retention of old or acquisition of new patronage.”
However, Judge Dawnessa Snyder dismissed that claim, saying the “dismissal of the county’s request for injunctive relief renders the inverse condemnation claim moot.”
On Tuesday, Richardson said he believes Trent “would have been censured by the (Wyoming State Bar) if she brought a baseless case in court, and that’s how baseless it is.”
Commissioner Pete Gosar, the one member of the three-person panel who’s expressed interest in continuing the lawsuit, said he thought Richardson’s assertion is presumptuous.
“Censure is to be decided after the fact,” Gosar said. “I don’t think you can predetermine whether you’d be censured or not. I don’t find this case to be frivolous. I’m not an attorney, but I have gone and asked attorneys whether this would be frivolous, and I don’t believe it is. I think there’s much to be said about pumps not being licensed for more than a decade.”
The petition doesn’t specifically ask the commissioners to resume the lawsuit, but Lund said Tuesday she thinks the county “has the authority to enforce the (Casper Aquifer Protection Plan) by prohibiting a gas station in that location.”
The debate about whether Tumbleweed Express can be shut down stems from an ambiguity in the county’s zoning rules.
Since the Casper Aquifer Protection Plan was adopted in 2011, gas stations are not allowed atop the Aquifer Overlay Zone.
However, pre-existing gas stations can only be shut down “if active and continuous operation of a non-conforming use is discontinued for a period of twenty-four (24) consecutive months.”
In the last decade, Tumbleweed Express typically went months without selling any fuel.
Residents who’ve argued Tumbleweed Express has lost its grandfather status, like Albany County Clean Water Advocates, have argued the gas station’s seasonal fuel sales means “active and continuous operation” had ended.
While Tumbleweed Express has maintained most of the required licenses, there was a long stretch where the gas station didn’t hold a “weights and measures” license, which assures consumers are getting the gasoline they’re paying for.
Water advocates have also argued the lapsed license should be enough to nullify the gas station’s grandfather status. Local hydrologist Bern Hinkley argued “common sense” dictates that “‘use’ means ‘legal use.’”
But when Trent dismissed the lawsuit in June, she told commissioners the lack of clarity in the regulations would make it hard to argue Tumbleweed Express had ceased “active and continuous operation.”
“We don’t define what is ‘continuous use,’” Trent said. “We don’t define ‘use’ in our code. … I looked to Supreme Court decisions to try and give me guidance, but after meeting and talking about it with staff, we did conclude that it would be grandfathered in.”
Richardson said Tuesday the bulk of the evidence weighs in favor of Tumbleweed Express having maintained its grandfather status.
“While people want us to abuse (Tumbleweed Express) by imposing some rule that doesn’t exist, we don’t have the legal basis to deny them that use,” Richardson said. “When they’re remitting fuel taxes to the state Department of Revenue and they’ve kept their (Department of Environmental Quality) certifications year after year after year, then we wind up where we are.”
Even if Tumbleweed Express were to prevail in court, Gosar said it would be worth pursuing the injunction to get a final court ruling on Tumbleweed’s grandfather status.
“There may some disagreement on the legality,” Gosar said. “A gas station has to have the tanks (licensed), it has to be inspected, it also has to have fuel sales, and it has to have licensing for the pumps. Now, (Tumbleweed) did not have (the pumps) licensed for more than two years. Now, maybe two out of three is enough, but we don’t know. We’re speculating. … Maybe Commissioner Richardson will be correct, but I think that’s for some place other than this body to decide. We can decide that legal opinion, but it would take this commission’s willingness to test this in court.”
Commissioner Terri Jones, who like Richardson and Trent, believes the county lacks authority to shut down the gas station, said it’s now the water advocates’ responsibility to take action to shut down the gas station if they think it’s worthwhile.
“I’m of the opinion that if people feel this commission has not acted appropriately in this situation, then you file a private lawsuit against Tumbleweed and see if a judge will hear it,” Commissioner Terri Jones said. “Or, raise the money to buy Tumbleweed out and name it after yourself. But we’re done right now. We’ve done everything we can according to the law. … I believe that a judge won’t hear it. Prove me wrong.”
The county’s Casper Aquifer Protection Plan, adopted in 2011, cites Tumbleweed Express’s underground storage tanks as one of the top seven risks for contaminating the aquifer.
Lund said Tuesday she wished the county or DEQ could force the gas station to upgrade its decades-old tanks into modern double-walled tanks.
In Tangeman’s court filings, he’s said “future scope of work may include installing new tanks and fueling system but none are proposed at this time.”