V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality

• Decision Date: 30 April 1990
• Docket Number: 89-8011,V-1,Nos. 88-2691,s. 88-2691
• Citation: 902 F.2d 1482
• Parties: , 58 USLW 2668 OIL COMPANY, A Wyoming corporation, Plaintiff-Appellant, v. STATE OF WYOMING, DEPARTMENT OF ENVIRONMENTAL QUALITY; Steven P. Gerber, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1482

902 F.2d 1482

31 ERC 1687, 58 USLW 2668

V-1 OIL COMPANY, A Wyoming corporation, Plaintiff-Appellant, v. STATE OF WYOMING, DEPARTMENT OF ENVIRONMENTAL QUALITY Steven P. Gerber, Defendants-Appellees.

Nos. 88-2691, 89-8011.

United States Court of Appeals Tenth Circuit.

April 30, 1990.

F.M. Andrews, Jr., Andrews and Anderson, P.C., Riverton, Wyo., for plaintiff-appellant.

Steve C. Jones, and Karen A. Byrne, Sr. Asst. Attys. Gen. (Joseph B. Meyer, Atty. Gen. with them on the briefs), Cheyenne, Wyo., for defendants-appellees.

Before HOLLOWAY, Chief Judge, ANDERSON and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff-appellant V-1 Oil Company ("V-1") appeals an adverse summary judgment and an award of attorneys' fees rendered by the district court. We affirm.

BACKGROUND

The district court, V-1 Oil Co. v. Wyoming, 696 F.Supp. 578 (D.Wyo.1988), found the following undisputed facts: Defendant-appellee Steven P. Gerber is an official of defendant-appellee the Wyoming Department of Environmental Quality ("DEQ"), an agency of defendant-appellee the State of Wyoming. He was aware that previous investigations of the V-1 Oil Station in Lander, Wyoming revealed that it was a source of groundwater pollution. On April 28, 1988, he noticed, while driving by, that the concrete above the station's underground storage tanks was being removed. Twice he tried to find out what was being done, and twice he was refused permission to enter the property. Informed of this, a senior assistant attorney general tried to obtain a court order allowing Gerber to inspect the premises, but no judge was available. The attorney then advised Gerber that the Wyoming Environmental Quality Act ("the Act") authorized him to conduct a warrantless search. That evening, Gerber, accompanied by a policeman and the Lander City Attorney, returned to the gas station, visually inspected the tanks, and took a soil sample from the exposed area. Id. at 579-80.

On May 27, 1988, V-1 filed suit under 42 U.S.C. Sec. 1983, alleging that the search violated V-1's Fourth Amendment rights. The district court granted summary judgment for each defendant. DEQ and the State were dismissed because of their Eleventh Amendment immunity from suit in federal court. Id. at 580. V-1 does not appeal this holding. Gerber was deemed entitled to judgment because the statute authorizes warrantless searches, id. at 581, such searches are constitutional, id. at 582, and Gerber's conduct fell within his qualified immunity because it violated no clearly established right, id. at 583. The judgment in favor of Gerber is the subject of No. 88-2691.

The defendants then filed a motion for attorneys' fees under 42 U.S.C. Sec. 1988. They documented the total time spent on the case, but did not state how many hours were spent on each particular issue. See R. Vol. I at Tabs 23, 32, 35. In an unpublished order, the court found that V-1's claims against the State and DEQ were frivolous and that for a time V-1 had relied upon an outdated version of the Act, and decided to award the defendants fees for time spent addressing those issues. Order, Jan. 19, 1989, R. Vol. I at Tab 37, at 2-3. V-1 does not appeal these conclusions. The court then estimated that the defendants spent twenty-two hours responding to these claims, and awarded fees based upon that estimate. Id. at 2. Whether the court was entitled to estimate how much time was spent on the issues upon which it awarded attorneys' fees, or instead should have required that the movants' records be broken down by issue, is the subject of No. 89-8011.

DISCUSSION

I. WARRANTLESS SEARCH

A. Whether The Wyoming Environmental Quality Act Authorizes Warrantless Searches

Gerber claims that section nine of the Act authorizes warrantless inspections of suspected sources of pollution. That section empowers certain officers, including Gerber, to

"enter and inspect any property, premise or place, except private residences, on or at which an air, water or land pollution source is located or is being constructed or installed.... Persons so designated may ... inspect any monitoring equipment or method of operation required to be maintained pursuant to this act ... for the purpose of investigating actual or potential sources of air, water or land pollution and for determining compliance or noncompliance with this act...."

Wyo.Stat. Sec. 35-11-109(a)(vi) (1988).

V-1 contends that this section did not authorize the search which took place either because it does not authorize warrantless searches or because it only authorizes warrantless searches of monitoring equipment and methods of operation required by the Act, and underground storage tanks do not fall into this category. We disagree.

V-1's first contention seems to be "that a warrant was required since the statute nowhere mentions the words 'warrantless search.' " V-1 Oil Co. v. Wyoming, 696 F.Supp. at 581. Courts do not infer a warrant requirement from statutes which authorize inspections but do not discuss the necessity of warrants. Instead, a bare authorization for inspections is construed to authorize warrantless inspections. See, e.g., Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 940 (Colo.), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 214 (1985); State v. Williams, 8 Kan.App.2d 14, 648 P.2d 1156, 1160-61 (1982); State v. Galio, 92 N.M. 266, 587 P.2d 44, 47 (Ct.App.1978); State ex rel. Industrial Comm'n v. Wasatch Metal & Salvage Co., 594 P.2d 894, 897 (Utah 1979). We see no reason to believe that the Wyoming Supreme Court would construe this statute any differently.

Second, because the Wyoming Environmental Quality Act should be construed liberally, People v. Platte Pipe Line Co., 649 P.2d 208, 212 (Wyo.1982); Roberts Constr. Co. v. Vondriska, 547 P.2d 1171, 1182 (Wyo.1976), we hold that underground gasoline storage tanks are a "method of operation required to be maintained pursuant to th[e] act." The phrase "pursuant to" has a broader meaning than the word "by." See Black's Law Dictionary 647 (abr. 5th ed. 1983). The statute authorizes the inspection, not only of facilities which the Act specifically requires, but also of any mechanism which is necessary to avoid committing a violation. Without proper storage equipment, gasoline could escape and pollute the surrounding land and groundwater. This is prohibited by, inter alia, Wyo.Stat. Sec. 35-11-301 (1988). Therefore, the Act authorized Gerber to inspect V-1's tanks.

B. Whether a Warrantless Search Pursuant to the Wyoming Environmental Quality Act Is Constitutional

The warrant requirement of the Fourth Amendment applies to commercial premises. See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). An exception to this requirement has developed, however, for "pervasively regulated business[es]," United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972), or " 'closely regulated' industries," Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978) (quoting Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 90 S.Ct. 774, 776, 25 L.Ed.2d 60 (1970)). To be reasonable, the warrantless inspection of such a business must meet the three-part test enunciated in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987):

"First, there must be a 'substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made....

Second, the warrantless inspections must be 'necessary to further [the] regulatory scheme.'

Finally, 'the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.' In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be 'sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.' In addition, in defining how a statute limits the discretion of the inspectors, ... it must be 'carefully limited in time, place, and scope.' United States v. Biswell, 406 U.S., at 315 ."

Id. at 702-03, 107 S.Ct. at 2644 (quoting Donovan v. Dewey, 452 U.S. 594, 600, 602, 603, 101 S.Ct. 2534, 2538, 2539, 2540, 69 L.Ed.2d 262 (1981)). The two major questions relevant to the constitutionality of Gerber's search are whether V-1 is pervasively regulated and whether the Act provides a constitutionally adequate substitute for a search warrant. ¹

1. Whether V-1 Is Pervasively Regulated

A pervasively regulated industry is one which has "such a history of government oversight that no reasonable expectation of privacy could exist...." Marshall v. Barlow's, Inc., 436 U.S. at 313, 98 S.Ct. at 1821 (citation omitted). "[T]he doctrine is essentially defined by 'the pervasiveness and regularity of the ... regulation' and the effect of such regulation upon an owner's expectation of privacy." New York v. Burger, 482 U.S. at 701, 107 S.Ct. at 2643 (quoting Donovan v. Dewey, 452 U.S. 594, 606, 101 S.Ct. 2534, 2542, 69 L.Ed.2d 262 (1981)). Pervasively regulated industries "represent the 'exception' rather than the rule." Marshall v. Horn Seed Co., 647 F.2d 96, 99 n. 1 (10th Cir.1981) (quoting Marshall v. Barlow's, Inc., 436 U.S. at 313, 98 S.Ct. at 1820); see also McLaughlin v. Kings Island, 849 F.2d 990, 994 (6th Cir.1988).

Wyoming state law ² requires a license and payment of a fee before one may do business as a gasoline dealer. Wyo.Stat. Sec. 39-6-203(b) (1988). Violation of this requirement is a misdemeanor. Wyo.Stat. Sec. 39-6-213(a) (1988). The price of the...