Outgoing Wyoming Gov. Mark Gordon was thrilled Tuesday when the state Supreme Court overturned a lower court ruling which threw out a state land trust lease to the Pronghorn H2 wind project in Converse County.

“Wyoming’s state trust lands, given to the state to support the schools in our act of admission to the Union, continue to serve a vital constitutional purpose including to ensure a financial gain for public school children across Wyoming," he said in a public statement Tuesday, adding, "These decisions were never political, they were made to ensure the highest and best value for our state lands,
buttressed by the legal, and contractual obligations made by the state. Tuesday's Supreme Court decision affirms the original vote made by the State Board of Land Commissioners granting this lease."

However, at the same time the Supreme Court affirmed standing to a neighboring property owner to sue Pronghorn H2 for losses to their land value due to turbines adversely effecting views of the habitat.

The case has ignited debate about Wyoming Trust Lands leases and what type of projects can be built on the land. Gordon said it's all about financial gain for Wyoming schools. However, there are other issues concerning stakeholders, including the effect to wildlife species like struggling sage grouse and mule deer populations. Pronghorn H2 plans to build a green energy project of a clean hydrogen industrial site that produces, stores, or processes hydrogen fuel with nominal or zero greenhouse gas emissions, unlike traditional high-emission methods. But opponents believe the construction of dozens of turbines and related infrastructure will ruin the habitat, wildlife and views for area owners.

Similar concerns were voiced prior to a lease on trust land for the Wyoming State Shooting Complex, which is located on sage grouse and mule deer habitat. The complex was actually moved from an area north of Cody after it was determined to be core elk calving habitat, and some staff objected to the chosen 2,036-acre site south of Cody as well, but ultimately, the decision was made to approve the lease.

Top Game and Fish leadership at the time also came out in support of the complex while complex board members have repeatedly pointed to efforts to avoid too much disruption of habitat throughout the construction process.

Converse County project

According to Supreme Court documents, Pronghorn H2 is a collaboration of several entities who develop, improve, and operate wind and solar energy projects. The company sought to develop a new kind of wind project in Wyoming designed to power a clean hydrogen facility rather than transmit energy to the grid.

In 2022, the company applied for a wind lease in Converse County from State Lands and Investments (OSLI). Upon submission, it discussed the application with and requested feedback from stakeholders, including surface lessees, and affected agencies. Two years later, Pronghorn H2 amended its wind lease application to incorporate stakeholder feedback, significantly lowering the number of turbines for the project and changes to infrastructure in support of wind energy generation that will provide electrical power to support an off-site, commercial scale, green hydrogen fuels manufacturing facility. Pronghorn H2 listed proposed improvements as “an estimated 39 wind turbine generators, access and maintenance paths, substations, and electrical distribution and transmission facilities (above and below ground).”

The company estimates the facilities’ value to be $322,000,000 and predicts the facility will generate approximately 230 megawatts of power. The project will sit on 25% to 30% state lands, with the remainder on private lands in western Converse County, south of Glenrock.

State Lands and Investments received dozens of written public comments in response to the amended application, most of which opposed the project, according to court documents.  Stephens Land and Livestock, LLC, on neighboring property, responded with a petition for review of administrative action, challenging the approval of the lease. Michael Stephens, who manages Stephens Land and Livestock, LLC and lives on the LLC’s property, stated leasing of state lands for the project will adversely affect wildlife and scenic interests, as well as its landowner interests.

Game and Fish feedback on Pronghorn H2's initial application stated some of the lease lands were also mule deer and antelope “crucial winter yearlong range” and recommended avoiding development from November to April in those areas. But the board approved the lease without making any findings regarding big game crucial winter range.

There were similar arguments made when debating the shooting complex. When the site was approved, it inspired at least one biologist to resign in protest and negative feedback. But, ultimately, then Game and Fish Director Angi Bruce told the shooting complex board the department was "100%" in favor of the shooting complex site.

Bruce was later reassigned to a newly created position in the Gordon administration before almost immediately leaving state service for a job in Colorado with the Western Landowners Alliance as chief programs and policy officer.

Stephens asserted the board violated Gordon's Executive Order 2019-3 because OSLI and Pronghorn H2 did not resubmit Pronghorn H2’s amended application to the Wyoming Game and Fish Department (WGFD) for additional review. But the court said Stephens failed to show OSLI was legally required to do so.

Executive Order 2019-3 aims to protect Wyoming’s greater sage grouse population and requires state agencies, including OSLI, to “prioritize the maintenance and enhancement of greater sage-grouse habitats and populations inside core populations areas” and other areas, by following outlined review procedures.

But the Supreme Court ruled the omission of sage grouse stipulations from the lease was not unreasonable.

"The record illustrates the Board knew about WGFD’s comments and recommendations as well as the changes in Pronghorn H2’s amended application. The Board therefore did not act arbitrarily or capriciously," the court said in overturning the District Court's earlier decision.

It is unclear whether Pronghorn H2’s amended application excludes big game crucial winter range. The approved lease does not discuss the big game crucial winter range identified by WGFD or its recommended development restrictions. The court found Stephens supplies no statute or rule requiring the Board’s determination regarding adverse effects on land management goals be written in an approved lease or otherwise.

Wind turbines and managed land

According to a WyoFile report earlier this year, there are nearly 1,500 wind turbines spinning in Wyoming with a generating capacity of approximately 3,700 megawatts — about 25% of the state’s total electrical generation capacity, according to multiple sources compiled by the organization.

Wyoming manages approximately 3.4 to 3.5 million surface acres and 3.9 million mineral acres of State Trust land.