Grams v. Environmental Quality Council, 86-122

• Decision Date: 19 December 1986
• Docket Number: No. 86-122,86-122
• Parties: Mary GRAMS and Leroy Grams, Appellants (Petitioners), v. ENVIRONMENTAL QUALITY COUNCIL of the State of Wyoming and Amax Coal Company, Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 784

730 P.2d 784

Mary GRAMS and Leroy Grams, Appellants (Petitioners), v. ENVIRONMENTAL QUALITY COUNCIL of the State of Wyoming and Amax Coal Company, Appellees (Respondents).

No. 86-122.

Supreme Court of Wyoming.

Dec. 19, 1986.

Randall T. Cox of Omohundro and Palmerlee, Buffalo, for appellants (petitioners).

A.G. McClintock, Atty. Gen., Steve R. Shanahan, Sr. Asst. Atty. Gen., Phil Tabor, Asst. Atty. Gen., Michael N. Patchen, Legal Intern, Cheyenne, for appellee (respondent) Environmental Quality Council.

Edward W. Harris and Marilyn S. Kite of Holland & Hart, Cheyenne, and Steven R. Youngbauer, Gillette, for appellee (respondent) Amax Coal Co.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Justice.

This is an appeal from the decision of appellee Environmental Quality Council (EQC) granting a permit to mine coal to appellee AMAX Coal Company (AMAX). Appellants Mary Grams and Leroy Grams objected to the permit application filed by AMAX. After a hearing was held, the EQC's order issued directing that a mining permit issue to AMAX.

Appellants raise the following issues on appeal:

I.

"(a) Whether the Environmental Quality Council's orders, findings and conclusions were adopted without observance of procedure required by law.

"(b) Whether the conduct of the Environmental Quality Council, its hearing examiner and the Department of Environmental Quality in the proceedings subject to review herein were arbitrary, capricious or deprived the appellants of their constitutional and statutory rights of due process of law."

II.

"(a) Whether the application of AMAX Coal company for a permit to surface mine coal was complete as of May 21, 1985, and therefore whether the Environmental Quality Council had statutory authority to direct the Department of Environmental Quality to issue a permit.

"(b) Whether the Environmental Quality Council's ultimate findings of fact are unsupported by substantial evidence and are not accompanied by findings of underlying facts and thus should be set aside."

We will affirm.

Appellants own land adjacent to the AMAX coal mining area. They are concerned that the mining operations will cause damage to their land. Specifically, appellants are concerned that the mining operations will have an adverse affect upon the wildlife, alluvial valley floors, and the lateral and subjacent support. Appellants also raised concern regarding toxic materials, proper hydrologic balance outside the area, and the blasting operations.

AMAX applied to the Wyoming Department of Environmental Quality, Land Quality Division (LQD) for a permit to mine coal pursuant to § 35-11-406, W.S.1977 (1986 Cum.Supp.). See, generally, Kite, "The Surface Mining Control and Reclamation Act of 1977: An Overview of Reclamation Requirements and Implementation," XIII Land & Water L.Rev. 703 (1978). This mine is presently active and this application is necessary to continue its operation. The LQD determined that the application was complete in January, 1984, and notice of the filing was published on February 8 and 15, 1984. On May 21, 1985, the LQD advised AMAX that the application was complete and suitable for publication under § 35-11-406(h). Thereafter, AMAX published notice of the LQD's determination of completeness in the Gillette News-Record on June 21, June 25, July 2 and July 9, 1985. Additionally, appellant Leroy Grams was served notice of the application by certified mail on June 29, 1985, and appellant Mary Grams was served notice by certified mail on July 5, 1985. On August 5, 1985, the appellants submitted their objections.

As a result of appellant's objections, the EQC was required to hold a hearing within twenty days from the final date of filing objections under § 35-11-406(k), unless the parties stipulate to a continuance. AMAX would not stipulate to a continuance, so the EQC was required to hold a hearing on or before August 28, 1985.

A prehearing conference was held on August 27, 1985. The next day, August 28, 1985, a hearing was held. At the hearing, appellant Leroy Grams appeared pro se. Appellant Mary Grams did not appear, nor was she represented by counsel. Appellant Leroy Grams cross-examined the witnesses for AMAX, made a sworn statement and presented evidence as to what his mother, appellant Mary Grams, would have said in support of appellant Leroy Grams' protest.

On November 19, 1985, the EQC entered its order directing the LQD to issue a mining permit to AMAX. On December 17, 1985, appellants filed a petition for review in the Campbell County District Court. The petition for review was certified to this court on May 7, 1986.

We begin by setting forth our applicable standard of review. In Citizens of Otto v. Wyoming State Committee for School District Organization, Wyo., 705 P.2d 831, 833 (1985), we stated:

"When reviewing an administrative agency's decision on appeal, § 16-3-114, W.S.1977 (October 1982 Replacement) mandates that we review the entire record, or those portions cited to us, to determine if the agency's actions are supported by substantial evidence. Mountain Fuel Supply Company v. Public Service Commission of Wyoming, Wyo., 662 P.2d 878 (1983). If it is determined that the agency's action is supported by substantial evidence, we are not at liberty to substitute our judgment for that of the agency. Burlington Northern Railroad Company v. Public Service Commission of Wyoming, Wyo., 698 P.2d 1135 (1985); and McCulloch Gas Transmission Company v. Public Service Commission of Wyoming, Wyo., 627 P.2d 173 (1981). Substantial evidence has been defined 'as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Board of Trustees, Laramie County School District No. 1 v. Spiegel, Wyo., 549 P.2d 1161, 1178 (1976), quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). The burden of proving a lack of substantial evidence rests upon the party attacking the agency's decision. Laramie River Conservation Council v. Industrial Siting Council, Wyo., 588 P.2d 1241 (1978); and Wyoming Bancorporation v. Bonham, Wyo., 527 P.2d 432 (1974)."

I.

A. Adequate Notice.

Appellants ask whether proper procedure was followed by the EQC and AMAX in this case. Appellants claim that there was insufficient notice given pursuant to statutory law.

Notice of filing the application is first required after the application is determined to be complete under § 35-11-406(g). This section then requires that " * * * the applicant shall publish a notice of the filing of the application once each week for two (2) consecutive weeks * * * " in a local newspaper. This notice was published by AMAX in the Gillette News-Record on February 8 and 15, 1984. It should be noted that appellants regularly received this newspaper at all times relevant hereto.

After the application has been reviewed, a determination is made whether the application is suitable for publication. If the application is not found to be deficient or is not denied, then it is deemed suitable for publication. § 35-11-406(h). At this point, the applicant (AMAX) must then publish notice of the application in a local newspaper pursuant to § 35-11-406(j), which provides:

"The applicant shall cause notice of the application to be published in a newspaper of general circulation in the locality of the proposed mining site once a week for four (4) consecutive weeks commencing within fifteen (15) days after being notified by the administrator. The notice shall contain information regarding the identity of the applicant, the location of the proposed operation, the proposed dates of commencement and completion of the operation, the proposed future use of the affected land, the location at which information about the application may be obtained, and the location and final date for filing objections to the application. The applicant shall mail a copy of the notice within five (5) days after first publication to all owners of record of the surface and mineral rights of the land within the permit area, to the owners of record of the surface rights of immediately adjacent lands and to any other persons with one-half ( 1/2) mile having a valid legal estate of record. Proof of notice and mailing shall be attached to and become part of the application."

In this case, AMAX received notification from the administrator that the application was suitable for publication on May 23, 1985. The first notice was published by AMAX on June 21, 1985, obviously longer than fifteen days after receiving notice of suitability for publication. The notices were published in the Gillette newspaper on June 21, June 25, July 2 and July 9, 1985.

We have stated that the main consideration is the gravity of the error, not its mere occurrence, and that the onus is placed upon the appellant to show how the error was prejudicial. State Highway Commission of Wyoming v. Joe Miller Land Company, Wyo., 467 P.2d 450, (1970). Furthermore, we have recognized that an error must be prejudicial and affect the substantial rights of the appellant to warrant reversal. ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981); and Tomkins v. Byrtus, 72 Wyo. 537, 267 P.2d 753 (1954).

Here, appellants have not shown how AMAX's failure to commence publication within fifteen days substantially prejudiced them. Any interested party has thirty days after the last publication of the notice in which to file written objections. § 35-11-406(k). Therefore, appellants were given more time in which to file their objections, and we think the error was harmless. Rule 61, Wyoming Rules of Civil Procedure; and Rule 7.04, Wyoming Rules of Appellate Procedure. We will not reverse an agency's action based on harmless error. Gore v. John, 61 Wyo. 246, 157 P.2d 552 (1945).

Appellants also complain that only eighteen days elapsed between the first and last publication of the notice. As cited above, § 35-11-406(j) requires that the...