If a Wyoming town incorporates after the federal census but before a state mineral fund payout, can the new town receive a population-based share?

Plain-English summary

In 2001, the Wyoming legislature passed Senate Enrolled Act No. 74, which repealed the Municipal Mineral Trust Fund effective July 1, 2001 and required the State Treasurer to distribute the entire balance to Wyoming cities and towns by December 31, 2001. The distribution was split: 25% equally among all cities and towns, and 75% in proportion to the city or town's population "based upon the most recent federal decennial census."

A new town called Bear River, in Uinta County, was on track to incorporate on or before July 1, 2001. The State Treasurer, Cynthia Lummis, asked the AG: would Bear River, which did not exist as a town when the 2000 census was taken, get a share of the population-weighted 75%?

AG Gay Woodhouse and Deputy Attorney General Michael L. Hubbard concluded yes. The statutory phrase "based upon the most recent federal decennial census" did not require the town to have existed at census time. It required the population calculation to start from the most recent decennial census. The 2000 census numbers, mapped to the geographic boundaries of the new town as it incorporated, would supply the population figure. Only residents counted in the 2000 census within those boundaries would be included; the numbers would not be updated or adjusted at distribution time.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

What was at stake for the State Treasurer

The Treasurer was about to write checks to every city and town in Wyoming. Bear River's anticipated incorporation timeline placed it on the cusp: incorporated before the fund's repeal date but after the census. Without an opinion, the Treasurer would have had to choose between excluding Bear River from the 75% share (potentially shorting the new town's residents) and including it without a clear textual basis (potentially exposing the office to a challenge from other towns whose share would shrink). The opinion settled the question.

What was at stake for Bear River

Inclusion in the 75% population-weighted share could have been a meaningful infusion of cash for a brand-new municipality. The 25% equally distributed share was already clearly available to Bear River under the plain language of subparagraph (a), "distributed equally among all cities and towns in Wyoming." The harder question was the population-based share under (b).

What the AG drew on

The opinion's reasoning was straightforward. Under Wyo. Stat. § 8-1-103, words and phrases in a statute are taken in their ordinary and usual sense. "Based upon" is an ordinary phrase, not a technical term. The Montana Supreme Court had construed it in State v. State Board of Equalization, 17 P.2d 68 (1932), to mean "an initial or starting point for calculation." The AG took that reading and applied it: the census is the starting point for the population calculation, but it does not require the entity to have existed when the count was taken.

An Ohio appellate decision, City of Pataskala v. Fraternal Order of Police, 2000 WL 192583, was on point and persuasive. There the court held that a similar phrase ("according to the most recent federal decennial census") in a public-employer statute did not require the city to have existed at census time; it required only that the population determination be made by reference to that census.

How earlier Wyoming AG opinions cut

The opinion drew on two earlier AG opinions to the State Treasurer. The 1978 opinion (No. 78-3) had concluded that the decennial census, as periodically updated by the Bureau, was the basis for distribution. The 1982 opinion (No. 82-7) reaffirmed that and added that special local counts could not be substituted for periodic federal updates. Together, those opinions had treated the federal decennial census (with periodic federal updates where the statute provides for them) as the controlling source. The 2001 opinion sat comfortably with that line: Bear River would draw its population from the 2000 federal decennial census, applied to its incorporated boundaries.

Common questions

Did Bear River need a special census?

No. The opinion explicitly says only the residents within Bear River's incorporated boundaries who were counted in the 2000 federal census would be included. There would be no special-census or re-counting step before the distribution.

What would happen to a new town that incorporated after July 1, 2001?

The opinion does not directly answer that, but its logic was tied to the trust fund's effective repeal date. A town that did not exist as of July 1, 2001 would not have been a "city or town in Wyoming" at the time of the distribution event. The AG's analysis presumed Bear River would incorporate by that date.

Was this distribution recurring or one-time?

One-time. Senate Enrolled Act No. 74 of 2001 repealed the Municipal Mineral Trust Fund and required the Treasurer to distribute the entire balance by December 31, 2001. The fund did not continue to accumulate or pay out after that.

Why did the legislature use "based upon the most recent federal decennial census" rather than just naming the year?

The drafting choice tracked similar phrasing already in Wyoming's mineral-royalty and severance-tax distribution statutes (formerly § 9-7-901 and § 39-6-305(k)). Reusing the familiar phrase let the same interpretive history carry forward. The 1978 and 1982 AG opinions had already construed that phrase, so the 2001 legislature was working with a known formulation.

How did the AG handle "ambiguity" if it found the statute clear?

The AG treated the statutory language as not unambiguously requiring the town to have existed at census time. Once that was established, the AG applied the canon that "based upon" gives a starting point, looking at Pataskala, the Montana 1932 case, and Webster's definitions of "base", to conclude that mapping the 2000 census to Bear River's incorporated boundaries was the correct approach.

Are these old § 9-7-901 and § 39-6-305(k) citations still good Wyoming law?

The citations the opinion uses are to the pre-2001 distribution scheme. Wyoming substantially restructured its mineral-revenue distribution statutes after 2001. A reader using this opinion should treat the statutory citations as historical and check the current Wyoming code for present-day distribution rules.

Background and statutory framework

The Wyoming legislature passed Senate Enrolled Act No. 74 in 2001 as part of a broader restructuring of how federal mineral royalties and severance taxes were de-earmarked and distributed. Section 6 of that act repealed the Municipal Mineral Trust Fund effective July 1, 2001 and directed the State Treasurer to distribute all funds in the Trust Fund "to cities and towns in Wyoming" by December 31, 2001. Twenty-five percent went equally to all cities and towns. Seventy-five percent went proportionally based on the population of each city or town "based upon the most recent federal decennial census."

The opinion's interpretive framework was Wyoming's standard rules of statutory construction. Wyo. Stat. § 8-1-103(a)(i) directs that "words and phrases shall be taken in their ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." The Wyoming Supreme Court reaffirmed that approach in Allied-Signal, Inc., Tenneco Oil, and Parker Land & Cattle. Where statutory language is clear and unambiguous, the court gives effect to its plain and obvious meaning without resort to construction. Amoco Production Co. v. Hakala, 644 P.2d 785 (Wyo. 1982).

The interpretive heart of the opinion is the meaning of "based upon." The AG drew on a 1932 Montana Supreme Court case, State v. State Board of Equalization, where the court construed "based upon" to mean "an initial or starting point for calculation." Combined with Webster's definition of "base" as a foundation or starting reference, "based upon the most recent federal decennial census" became a rule for the source of the population count, not a requirement that the recipient have existed when the count was taken.

The Ohio decision in Pataskala provided a worked example. There the court rejected the argument that a municipality had to have existed at census time to qualify as a "public employer" under R.C. 4117.01(B)'s population threshold. The same disjunction between census-existence and census-derived population transferred well to the Wyoming question. The 2001 Wyoming AG opinion adopted that reading.

Citations

• 2001 Wyo. Sess. Laws, S.E.A. No. 74, § 6 (repeal of Municipal Mineral Trust Fund; distribution formula)
• Wyo. Stat. § 8-1-103 (rules of statutory construction; ordinary and usual sense)
• Amoco Production Co. v. Hakala, 644 P.2d 785 (Wyo. 1982) (plain meaning rule)
• Allied-Signal, Inc. v. Wyoming State Board of Equalization, 813 P.2d 214 (Wyo. 1991) (when statutory language is sufficiently definitive)
• Parker Land & Cattle v. Wyo. Game and Fish, 845 P.2d 1040 (Wyo. 1993) (ordinary meaning of statutory words)
• City of Pataskala v. Fraternal Order of Police, 2000 WL 192583 (Ohio App. 10 Dist.) (no requirement of existence at census time)
• State v. State Board of Equalization, 17 P.2d 68 (Mont. 1932) ("based upon" as starting point)
• 1978 Wyo. Op. Atty. Gen. No. 78-3; 1982 Wyo. Op. Atty. Gen. No. 82-7 (decennial census plus federal updates as basis for distribution)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHMWZnMWVqY3JLRDQ/view?resourcekey=0-7lnbpMYQXxO1v916QhUaEg

Original opinion text

May 7, 2001
FORMAL OPINION NO. 2001-001

TO:

Cynthia Lummis
Wyoming State Treasurer

FROM:

Gay Woodhouse
Attorney General
Michael L. Hubbard
Deputy Attorney General

QUESTION PRESENTED:

SHORT ANSWER:

Will a new town incorporated under Wyoming law on
or before July 1, 2001 participate in the distribution of
the Municipal Mineral Trust Fund under subparagraph
(b) of Section 6 of Senate Enrolled Act No. 74 of the
2001 General Session?
Yes, please see discussion.

DISCUSSION
As you know, Section 6 of Senate Enrolled Act No. 74 provides as follows:
Section 6. The municipal mineral trust fund is repealed
effective July 1, 2001. Not later than December 31, 2001, the
state treasurer shall distribute all funds within the municipal
mineral trust fund to cities and towns in Wyoming as follows:
(a) Twenty-five percent (25%) shall be distributed
equally among all cities and towns in Wyoming;
(b) Seventy-five percent (75%) shall be distributed to
cities and towns in the proportion which the population of the
city or town bears to the population of all cities and towns in
Wyoming, based upon the most recent federal decennial
census. (emphasis added)
Senate Enrolled Act No. 74 modifies the plan adopted last year for the deearmarking of federal mineral royalties and severance taxes. As part of the new plan, the

Municipal Mineral Trust Fund is repealed and the monies therein are distributed as
provided above. A new town called "Bear River" in Uinta County plans to incorporate on
or before July 1, 2001. The question is whether or not "Bear River" will participate in the
distribution provided by subparagraph (b) of Section 6.
Subparagraph (a) would clearly apply because the plain language requires
distribution "equally among all cities and towns in Wyoming." However, subparagraph
requires distribution "based upon the most recent federal decennial census." Since "Bear
River" was not in existence at the time of the most recent federal decennial census, the
question is whether or not the new town can participate in the distribution under
subparagraph (b).
A.

General Rules of Interpretation

In interpreting statutes, the Wyoming Supreme Court will look first to the language
of the statute, and if the language is clear and unambiguous, the Court will not look at rules
of statutory construction, nor will it attribute another meaning to the statute, but will give the
statute effect according to its plain and obvious meaning. Amoco Production Co. v. Hakala
644 P.2d 785 (Wyo. 1982); Board of County Com'rs of Campbell County v. Ridenour, 623
P.2d 1174 (Wyo. 1981); Hayes v. State, 599 P.2d 558 (Wyo. 1979); Mountain Fuel Supply
Co. v. Emerson, 578 P.2d 1351 (Wyo. 1978). In Allied-Signal, Inc. v. Wyoming State Board
of Equalization, 813 P.2d 214 (Wyo. 1991), the Court explained:
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.
Our precedent
demonstrates that this rule also is an absolute. If the language
selected by the legislature is sufficiently definitive, that
language establishes the rule of law . . ..
Id. 813 P.2d at 219.
When a word or phrase in a statute is susceptible of more than one meaning, it must
be considered ambiguous. State Bd. of Equalization v. Tenneco Oil, 694 P.2d 97, 99 (Wyo.
1985). In Allied-Signal, Inc., supra, the court stated:
We previously have articulated the proposition that a statute is
ambiguous only if it is found to be vague or uncertain and
subject to varying interpretations. (citations omitted)
Id. at pp. 219-220.
B.

Rules of Statutory Construction

1.

Legislative Intent

Legislative intent is the primary and foremost consideration in statutory construction.
State Board of Equalization v. Tenneco Oil, supra, 694 P.2d at 100. If the language of the
statute is not clear the court must look to the mischief the statute was intended to cure, the
historical setting surrounding its enactment, the public policy of the State, the conclusions
of law, and other prior and contemporaneous facts and circumstances, making use of the
accepted rules of construction to ascertain a legislative intent that is reasonable and
consistent. State ex rel. Motor Vehicle Division v. Holtz, 674 P.2d 732, 736 (Wyo. 1983).
It is axiomatic that a statute be viewed in terms of the object and purpose to be
accomplished. State Bd. of Equalization v. Tenneco Oil, supra, 694 P.2d at 100.
2.

Ordinary and Usual Sense

The fundamental rules for statutory interpretation and construction are applicable.
The Wyoming Legislature has provided at WYO. STAT. § 8-1-103 the following rules to be
applied to the construction of Wyoming statutes:
(a) The construction of all statutes of this state shall be by
the following rules, unless that construction is plainly contrary
to the intent of the legislature:
(i) Words and phrases shall be taken in their
ordinary and usual sense, but technical words and phrases
having a peculiar and appropriate meaning in law shall be
understood according to their technical import; (emphasis
added)
The Wyoming Supreme Court agrees that words and phrases used in a statute shall
be taken in their ordinary and usual sense. Belco Petroleum Corp. v. State Board of
Equalization, 587 P.2d 204, 209 (Wyo. 1978); Johnson v. Safeway Stores, Inc., 568 P.2d
908 (Wyo. 1977). In interpreting statutes, it is presumed that the legislature intended the
ordinary meaning of the language. Ward v. Board of Com'rs, 36 Wyo. 460, 256 P. 1039
(1927). Wyoming law creates a presumption that the words utilized in a statute are to be
given their natural, ordinary and everyday meanings, unless the statutes provide to the
contrary.
In Parker Land & Cattle v. Wyo. Game and Fish, 845 P.2d 1040, 1042 (Wyo. 1993),
the Court noted "[T]he initial step in arriving at a correct interpretation . . . is an inquiry
respecting the ordinary and obvious meaning of the words employed according to their
arrangement and connection."

In 14 AM. JUR. 2d Census, § 1, p. 603 (2000) it provides:
The term "census" is commonly understood as meaning the
United States decennial census, particularly where that is the
only census which is regularly and periodically taken in a state.
The words "federal census" are generally accepted to mean a
census taken by and under the direction and supervision of the
census department of the United States.
However, the statutory language in question does not clearly and unambiguously
require that the specific city or town be in existence at the time of the most recent federal
decennial census. The statutory language simply requires the distribution be "based upon
the most recent federal decennial census."
In City of Pataskala v. Fraternal Order of Police, 2000 WL 192583 (Ohio App.10
Dist.), the court explained in an unpublished opinion:
The court below held that the statute is clear and unambiguous
and mandates a finding that appellee is not a public employer,
because it did not exist at the time of the 1990 federal census.
We disagree, finding that the language of R.C. 4117.01(B)
does not clearly and unambiguously require that the specific
municipal entity itself have been in existence at the time of the
most recent federal decennial census.
The statutory language of R.C. 4117.01(B) requires only two
things. First, the entity must be a municipality, which the city
of Pataskala clearly is.
Second, the entity must have a population of at least five
thousand according to the most recent federal decennial
census. As noted above, the trial court interpreted the phrase
<according to the most recent federal decennial census' to
essentially mean <as reported for that entity in the most recent
federal decennial census.' As such, only those entities in
existence at the time of the census and having a reported
population of at least five thousand in that census can qualify
as a public employer.
However, such an interpretation is neither the only nor the
most reasonable interpretation. The phrase <according to'
means <in conformity with,' <as stated or attested by,' or
<depending on.' Merriam Webster's Collegiate Dictionary (10
Ed. 1994) 8. Thus, in context, the phrase <according to the
most recent federal decennial census' reasonably means
that the population determination must be made only in

reference to (i.e., in conformity with or depending on) the
most recent federal decennial census. In other words, the
most recent federal decennial census must be the only
source from which the population determination is made.
See In re Mingo Junction Safety Forces Assn., Local No. 1
(1991), 74 Ohio App.3d 313, 319, 598 N.E.2d 1233 (holding
that R.C. 4117.01(B) looks to a <clearly specified census' to
determine whether a municipality is a public employer and that
Secretary of State's designation of a municipality as a city
pursuant to R.C. Chapter 703 is immaterial). (emphasis
added)
Id. 2000 WL 192583, pp. 2-3 (Ohio App. 10 Dist.)
The Montana Supreme Court noted in State v. State Board of Equalization, 17 P.2d
68, 73, 93 Mont. 19 (1932), "the ordinarily accepted meaning of the words <based upon' is
an initial or starting point for calculation." In WEBSTER'S NEW COLLEGIATE DICTIONARY (G
& C Merriam Company 1980), the term "base" is defined as follows:
2

base vt based; bas-ing 1: to make, form,or serves as a
base for 2: to find a base or basis for – usu. used with on or
upon
Thus, the initial calculation or the starting point for the determination of the
population of the Wyoming cities and towns for purposes of the distribution under Section
6(b) of Senate Enrolled Act No. 74 would be the 2000 federal decennial census. The 2000
federal decennial census would serve as the basis for determining the population of "Bear
River" for purposes of the distribution.
Only the residents located within the boundaries of the new town as provided in the
2000 federal census would be counted. The 2000 federal census numbers would be used
as the basis for the population numbers used in the distribution. The numbers would not
be updated or adjusted at the time of the distribution. There is no language suggesting that
updated numbers be used.
In 1978, this office rendered an official opinion regarding the population data to be
used in distributing federal government royalties to incorporated cities and towns. 1978
WYO. OP. ATTY. GEN. No. 78-3 (January 10, 1978). The opinion explained:
The Bureau of Census conducts a myriad of censuses and
surveys, but the only ones of concern herein are those which
would provide data as to the populations of the incorporated
cities and towns in the State of Wyoming. Such information is
currently provided by the Bureau of the Census in only three
ways: decennial census; special census; and population
estimate.

A "Census of the Population" is taken at ten-year intervals in
the years ending with "0". It is this Census of the Population
to which 9-577.1(a)(vi)(B) refers with the language "latest
federal census." Obviously, once the information is
obtained from this decennial census, such would be the
basis for the computation of distribution under W.S. 9577.1(a)(vi)(B) until an update as contemplated by that
section occurs.
Special censuses and population estimates are the two
methods by which information contained in the Census of the
Population and relevant to W.S. 9-577.1(a)(vi)(B) is updated.
(emphasis added)
The statute reviewed in WYO. OP. ATTY. GEN. No. 78-3 provided "based on the latest
federal census as periodically updated by the bureau of the census." The opinion
concluded that population updates should be used to make the distributions.
In another opinion to the State Treasurer, this office in 1982 opined that a special
census of a particular county could not be used for distribution of severance taxes and
royalty revenues. 1982 WYO. OP. ATTY. GEN. No. 82-7. The opinion noted:
Former State Treasurer Ed Witzenburger posed a question to
this office in 1978 regarding the use of periodic updates of
population counts by the Census Bureau. At that time the
Bureau was providing updated data for the entire State at
regular intervals. As mentioned, these periodic updates have
been discontinued. In response to the Treasurer's 1978
request, this office discussed the statutory significance of
regular censuses, periodic updates and special local counts,
Opinion 78-003.
The writers of that opinion referred to the statute authorizing
distribution of federal mineral royalties, <. . . based on the
latest federal census as periodically updated by the bureau of
the census;' Section 9-7-901, W.S. 1977. The same language
is found at Section 39-6-305(k), supra, (oil and gas severance
tax). It was concluded that the Legislature intended for
distribution to be based only upon the decennial census and
periodically updated official Bureau counts. <Special censuses
are not periodic and do not occur at regular intervals . . .'
Opinion 78-003. Following their careful statutory construction,
the writers concluded:
The distribution of federal government royalties to be
made by the State Treasurer to all incorporated cities

and towns pursuant to W.S. 9-577.1 (9-7-901) is to be
based upon information contained in the latest federal
decennial census until such has been periodically
updated by the Bureau of the Census.
We see no reason to depart from this conclusion. Because the
Legislature used the same language for mineral royalty and oil
and gas severance tax distributions, this conclusion applies
equally to both programs.
The opinion concluded, "Use of results of special local census data is inconsistent
with the statutes governing mineral royalty and severance tax."
We would conclude that "Bear River" would participate in the distribution under
subparagraph (b) of Section 6 of Senate Enrolled Act No. 74, based upon the population
located within the boundaries of the new town as provided in the 2000 federal census.