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The Wyoming Supreme Court Remands the Fracking Secrets Case Back to the District Court

March 12, 2014

The Wyoming Supreme Court issued its opinion in Power River Basin Resource Council v. Wyoming Oil and Gas Commission today.  The Court was asked to decide on the following single issue: “Did the district court err in determining that the information sought in Appellants’ public records request concerning the identity of certain chemicals used in hydraulic fracturing fluids are exempt from public disclosure as trade secrets under the WPRA?

In a unanimous opinion authored by Justice Davis, the Court held that the Appellants (Powder River Basin Resource Council and others) pleadings contained a procedural flaw that required the Court to reverse and remand the case to the district court. Specifically, the Court found the Appellants pleading insufficient as they plead the case under the Wyoming Administrative Procedures Act rather following the procedural requirements set forth in the Wyoming Public Records Act (WPRA). Had they followed the requirements under the WPRA, they would have been required to request to the district court to issue a show cause order requiring the Supervisor of the Oil and Gas Conservation Commission to justify his decision at a WPRA evidentiary hearing.  Essentially the Court found that the WPRA requires the district court to determine whether information must be disclosed or not, rather than to review a decision of the Supervisor as an administrative decision.

Upon remand, the district court will have to determine whether to permit the Appellants to amend their pleadings and file appropriate documents, or whether to dismiss the case instead, though the court noted that the Appellants could refile a new case properly presenting the issues.

Despite the decision to remand the case, the Court did offer guidance to the district court on the standard to be applied in trade secrete cases under the WPRA. In that guidance, it adopted the federal Freedom of Information Act definition of trade secrets: 

 “[a] trade secret under the WPRA is a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort, with a direct relationship between the trade secret and the productive process.

The Court did not address the issue of whether the identity of the chemicals may be trade secrets in the context of hydraulic fracturing operations. Upon remand, the Court stated that the district court will have to review the disputed information on a case-by-case, record-by-record, or perhaps operator-by-operator basis – utilizing the WPRA process and applying the trade secret definition set forth in this opinion and making particularized and independent findings.

For a copy of the Supreme Court’s opinion, click here:

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