LeFaivre v. Environmental Quality Council of Dept. of Environmental Quality

• Decision Date: 09 April 1987
• Docket Number: No. 86-240,86-240
• Citation: 735 P.2d 428
• Parties: 17 Envtl. L. Rep. 20,835 Robert C. LeFAIVRE, Appellant (Plaintiff), v. ENVIRONMENTAL QUALITY COUNCIL OF the DEPARTMENT OF ENVIRONMENTAL QUALITY of the State of Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 428

735 P.2d 428

17 Envtl. L. Rep. 20,835

Robert C. LeFAIVRE, Appellant (Plaintiff), v. ENVIRONMENTAL QUALITY COUNCIL OF the DEPARTMENT OF ENVIRONMENTAL QUALITY of the State of Wyoming, Appellee (Defendant).

No. 86-240.

Supreme Court of Wyoming.

April 9, 1987.

Robert C. LeFaivre, pro se.

A.G. McClintock, Atty. Gen., and Steven R. Shanahan, Sr. Asst. Atty. Gen., for appellee.

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

URBIGKIT, Justice.

This appeal record, viewed by a naturalist or Indian historian, would provide a fascinating discussion about a place in central Sweetwater County in southern Wyoming of archaeological, historical and cultural interest, called the "Natural Corrals." Judicial review, however, presents a conflict to this court between the Wyoming Department of Environmental Quality (DEQ), which denied a mine application, and appellant Robert C. LeFaivre, who wants to "mine" the constituent natural rock formation and procure boulders for home building and decorative stone. Procedural, substantive and jurisdictional issues are found in appellate briefs and oral argument presented pro se.

LeFaivre attacks the denial decision of the state agency on procedure: (a) protestants were not competent to object, secure a hearing, or present evidence; and (b) inadequate notice of the hearing. Substantively, he challenged the decision and contended that (a) the mine site was not considered properly to be a rare or uncommon area containing definable historical, archaeological, wildlife, surface, geological, botanical, or scenic value; (b) his mine and reclamation plan was adequately supported; and (c) the authority of the Wyoming Department of Environmental Quality was preempted by federal law, excluding jurisdiction over the site despite state law and its environmental quality processes and permitting requirements. Appellant also challenges the sufficiency of the evidence to support the administrative agency decision.

FACTS

Under the business designation of Western Aggregates, appellant had a suspended permit (No. 503) to mine pumice claims on federal Bureau of Land Management (BLM) lands in Sweetwater County. On April 4, 1984, he filed a personal application to amend Permit 503 to include two noncontiguous sites, one for a mill location, and the second for a building stone claim site of 160 acres. It is this second aspect, involving stone removal from the Natural Corrals that is the subject of this appeal.

When public notice was given about the mining application for the Natural Corrals area, protests were made, and the contested hearing of May 15, 1986 followed. Protestants were Steven D. Creasman, and Charles M. Love. Both signed the protest letter which evidenced their relationship to the Western Wyoming Community College in Sweetwater County, although the protest was not made in the name of the College.

The hearing was conducted by John Crow, an experienced Wyoming trial attorney who, as a member of the Environmental Quality Council acted as hearing examiner. Requirements in hearing management were complicated, since not only did LeFaivre appear pro se, but also protestants and all witnesses appeared without the assistance or participation of examining counsel, except the one witness presented by the Department of Environmental Quality.

Applicant testified, as his only hearing evidence, in the form of an opening statement and closing argument, with some factual evidence given in the nature of a combination of advocate argument and witness testimony. This included a rather expressive critique of the proceedings:

"This so-called hearing is merely a politically-caused, state-sponsored rally for a lost cause."

The land, which is property of the United States, is under the jurisdiction of the BLM, and it was established that BLM approval for the mining permit at the Natural Corrals had not been given.

Love, as a protestant, testified within his expertise as a professional geologist and archaeologist. He had prepared site reports of the area. Creasman testified as an archaeologist, on work and research done in the area for the BLM in connection with the area's nomination and consideration as a national registered archaeological site. Also in support of permit denial, Richard Randall testified as a representative of the defendants of wildlife and a wildlife specialist. Jim June testified as a retired state game warden and game specialist of 33 years with personal knowledge of the area. Henry Chadey, a former native of Superior, a town located some five miles from the Natural Corrals, who was a county employee of Rock Springs with lifetime experience in the area, testified as a representative of the county's Historical Society and of Sweetwater County Museum. Additionally testifying were Harold Johnson, an outdoor recreational planner and coordinator in the area of critical environment for the Rock Springs BLM district, and Frank Prevedel, a state senator and area native raised in the town of Superior, and a frequent visitor to the area for both archaeological search and recreational activities for a period of 50 years.

Ice caves, Indian digs, artifacts, uniqueness of the area, wildlife resource, historical significance of the area, cultural advantage, and recreational opportunity, were among the generalizations specifically addressed in the testimony in opposition to the mine permit.

A DEQ employee, Mark Moxley, the only other witness, testified about the permitting process and the relationship between the BLM and the state mining claim procedure. In analysis, he described the reclamation plan and mining permit intent "First let me describe what the mine plan is. It is Mr. LeFaivre's intention to go out and simply remove boulders, small ones, or else break off pieces of larger ones, so he is not intending to make any excavation into the ground, he's not intending to build any roads; so from that standpoint, his actual effect on the ground surface is minimal compared to most mining operations.

"The reclamation plan would simply be to perhaps reseed small areas where he may have perhaps destroyed some vegetation, or if he removes a rock and there's wear spots under the rock he would reseed it; but so far as any large scale reclamation, there would be none."

Mr. LeFaivre addressed the Council in closing comment, summarizing his factual position:

"Mr. Crow, members of the Council, interested citizens. If special consideration is to be given protestants as concerns admission of covert evidence in support of cultural inventory attributed to need for cause in this open meeting type hearing whereas no agenda is prescribed, applicant requests that the state enter application as approved by LQD prior to this unusual and cumbersome politically motivated rally by special interests in order for evidence of fact to be subjected to perusal of the Council without bias in forefront of consideration as is due and necessary.

"The Council may review the remainder of the record as will be offered into evidence upon concurrence of the Land Quality Division by special conference so as to preserve private rights attached in view of ongoing litigation as is effected by cooperative agreement with the State of Wyoming Land Quality Division as agent of the state obligated to applicant herein.

"Proposed quarry mining activity is beyond reasonable doubt not in setting of irreparable harm, destruction or material impairment. Therefore, from the environmental point of state concern, the Council is respectfully requested to approve the mine plan as is indicated by Land Quality Division should be done. There is no particular historical, archaeological, wildlife, surface geological, botanical or scenic value in position of determination of the Council prohibiting mine permit approval. BLM predictions herein are reviewed as within prejudice of ACED. Opponents to minerals development are without basis in law, rule, and/or regulation in pursuit of personal preference to archaeologic endeavors. The area is not designated by any agency of government so as to deny the mineral rights. As for example, the Council has not designated the area rare or uncommon."

Responding to this declamation, the Council in its findings and conclusions determined procedural sufficiency for the hearing and factually, in part:

"5. Mr. Charles M. Love, Professor, Anthropology and Geology, Western Wyoming College, and Mr. Steven D. Creasman, Director, Archaeological Services, Western Wyoming College, filed timely objections to a portion of the mine permit amendment application.

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"8. Permit amendment application, TFN 1 1/338, covers two noncontiguous parcels of property. The first parcel is a building stone collection area located at the Natural Corrals. * * *

"9. The United States of America owns the surface and mineral rights for the land identified as the Natural Corrals. The land is managed by the Department of Interior, Bureau of Land Management.

"10. The Applicant did not present any direct evidence at the hearing in support of his application, but he chose to rely on his application and documents submitted to the Department to support his application.

"11. Applicant's permit amendment application for the area around the Natural Corrals is to allow the mining of large blocks of rock for sale as building stone. The mining and reclamation plan summary indicates that no excavation, earthmoving or roadbuilding will be conducted at the mine site. Surface rocks will be removed whole or cut and split onsite and then removed. Overland travel will be by four wheel drive with the possible use of horses and helicopters. Operations will be conducted to avoid streams, springs, marshy areas and drainages. Trees and large shrubs will be preserved. There may be a need to house employees on site using small travel trailers or skid mounted buildings. The mining and reclamation plan summary further states that if significant...