Pfeil v. Amax Coal West, Inc., No. 95-34

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GOLDEN; GOLDEN
Citation908 P.2d 956
PartiesRoger D. PFEIL and Linda Jo Pfeil, husband and wife, for themselves and for their minor children; and Joseph M. Gilsdorf and Karla J. Oksanen, Appellants (Petitioners), v. AMAX COAL WEST, INC., a subsidiary of Cyprus Amax Coal Company; and Environmental Quality Council of the State of Wyoming, Appellees (Respondents).
Docket NumberNo. 95-34
Decision Date19 December 1995

Page 956

908 P.2d 956
Roger D. PFEIL and Linda Jo Pfeil, husband and wife, for themselves and for their minor children; and Joseph M. Gilsdorf and Karla J. Oksanen, Appellants (Petitioners),
v.
AMAX COAL WEST, INC., a subsidiary of Cyprus Amax Coal Company; and Environmental Quality Council of the State of Wyoming, Appellees (Respondents).
No. 95-34.
Supreme Court of Wyoming.
Dec. 19, 1995.

Page 957

Anthony T. Wendtland of Davis and Cannon, Sheridan, for appellants.

Marilyn S. Kite, P.C. of Holland & Hart, Jackson; and Steven R. Youngbauer of Amax Coal West, Inc., Gillette, for appellee Amax Coal West, Inc.

William U. Hill, Attorney General; Mary B. Guthrie, Deputy Attorney General; Ron Arnold, Sr. Assistant Attorney General; and Kristi T. Sansonetti, Legal Intern, Cheyenne, for appellee Environmental Quality Council.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

GOLDEN, Chief Justice.

We review property owners' (objectors) contentions that the Environmental Quality Council (EQC) and Amax Coal West, Inc. (Amax) failed to provide them with sufficient and timely notice of a proposal to revise the mining plan for the Eagle Butte Mine. The

Page 958

mine is located near the Rawhide Village subdivision, nine miles north of Gillette, Wyoming. The objectors also contend the EQC's decision to approve the revision to the mining plan was arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, as well as not supported by substantial evidence.

The order is affirmed.

ISSUES

The objectors, Roger D. and Linda Jo Pfeil, Joseph M. Gilsdorf, and Karla J. Oksanen, supply this statement of the issues:

1. Were Gilsdorf and Oksanen denied proper statutory notice of their right to object to Amax's Form 11 Revision application?

2. Did the public notice provided by the EQC and Amax to [objectors] deprive them of full and fair notice of the proceedings as required by statute, DEQ (Department of Environmental Quality) rules and Wyo. Const. Art. 1, § 6?

3. Is the mandatory twenty (20) day time limit set forth in W.S. § 35-11-406(k) unconstitutional under Wyo. Const. Art. 1, § 6 as applied to citizen objectors?

4. Did the EQC commit reversible error when it denied the Pfeils' motion for a continuance?

5. Was the EQC's decision making process arbitrary and capricious?

The EQC states these issues:

I. Whether [objectors] received adequate notice of the AMAX permit revision.

II. Whether holding a hearing within twenty days after the objection period closed violated [objectors'] procedural due process [rights].

III. Whether the [EQC's] denial of [the Pfeils'] motion for continuance was proper.

IV. Whether the [EQC's] decision that the permit revision be approved should be affirmed.

Amax summarizes the issues, thus:

A. Did the method Amax used to mail notice of the permit revision comply with applicable law?

B. Did the content of the notice of the permit revision comply with applicable law?

C. Did the [EQC's] decision to deny ... Pfeils' motion for a continuance constitute an abuse of discretion?

D. Is the statutory procedure for permit revisions constitutional?

E. Was the [EQC's] decision to grant the permit revision supported by substantial evidence?

FACTS

In 1976, Amax was issued a mining permit for operating the Eagle Butte Mine north of Gillette, Wyoming. Shortly afterwards, Rawhide Village subdivision was developed immediately to the west of the mine area. The Pfeils moved into Rawhide Village in 1978 and have since acquired other lots in the subdivision. Gilsdorf and Oksanen (Oksanen) purchased their home in Rawhide Village in 1988, and purchased other lots in the subdivision in 1990 and 1994.

Amax planned to begin mining adjacent to Rawhide Village in 1983 but in 1985 revised that date to 1993. Further revisions occurred in 1988 and 1990 causing the 1993 date to change to the year 2007. In 1993, Amax applied for another permit revision. The only change in the mine plan proposed by this revision was to alter the sequence and timing of the mining operations, essentially returning to the earlier schedule by which mining would occur near Rawhide Village in 1994.

The Wyoming Department of Environmental Quality's Land Quality Division (LQD) reviewed the application for revision to the mine permit and on May 13, 1994, authorized Amax to publish notice of its intent to seek permit revision. The LQD drafted a notice to comply with WYO.STAT. § 35-11-406(j) (1994) which Amax placed in the Gillette newspaper on May 20, May 26, June 1, and June 6, 1994. On May 23, 1994, Amax mailed copies of the notice to surface owners of record of all lands within the permit area, immediately adjacent to the permit area, and within one-half mile of the proposed mining site.

Page 959

Amax identified these owners through the services of Campbell County Abstract Company which searched county real estate records for names and addresses. The Pfeils received their mailed notice; however, Oksanen did not receive the mailed notice. Instead, during the last week of June, she learned of the proposed revision through neighbors. After contacting Amax, notice was mailed to her which she received on July 5, 1994. The objectors filed timely protests to the permit revision and the EQC scheduled a hearing on those protests on July 26, 1994. On July 20, the Pfeils moved for a continuance. Ruling was reserved and the hearing held on July 26. The motion for a continuance was denied although the hearing examiner ruled the parties could submit additional arguments and information through September 2, 1994.

The objectors' protests were further considered by the EQC at public meetings held on October 5 and 24, 1994. On November 7, 1994, the EQC issued its Findings of Fact, Conclusions of Law and Order granting Amax's request to revise the permit. Objectors filed a petition for review with the district court. That court certified the petition to this Court under WYO.R.APP.P. 12.09.

DISCUSSION

Standard of Review

An administrative agency's decision certified under WYO.R.APP.P. 12.09 is reviewed by this Court under appellate standards applicable to a reviewing court of the first instance. In the Matter of Nyquist, 870 P.2d 360, 362 (Wyo.1994). The scope of review of administrative actions is defined in WYO.STAT. § 16-3-114(c) (1990). Olheiser v. State ex rel. Workers' Comp. Div., 886 P.2d 269, 271 (Wyo.1994).

Adequate Notice

Oksanen contends Amax violated statutory notice requirements when it did not mail notice to her current mailing address available from official property records. The objectors also contend the content of the notice did not comply with the statute's requirements. Whether Amax complied with statutory notice requirements is a question of law. See Grams v. Environmental Quality Council, 730 P.2d 784, 787 (Wyo.1986). The standard of review for an agency's conclusions of law is straightforward; if the conclusion is in accordance with the law, it is affirmed, and if it is not, it is corrected. Powder River Basin Resource Council v. Wyoming Environmental Quality Council, 869 P.2d 435, 437 (Wyo.1994).

WYO.STAT. § 35-11-406(j) requires the applicant to both publish and mail notice of its application for permit revision:

(j) 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 surface owners of record of the land within the permit area, to surface owners of record of immediately adjacent lands, to any surface owners within one-half ( 1/2) mile of the proposed mining site.... Proof of notice and mailing shall be attached to and become part of the application.

WYO.STAT. § 35-11-406(j) (1994). 1

County property records held a warranty deed to Oksanen listing the address to which Amax first mailed notice. The county records...

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23 practice notes
  • Fraternal Order of Eagles Sheridan v. State, No. 05-57.
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 2006
    ...651 P.2d 778, 789-90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo.2001) (quoting V-1 Oil Co. v. State, 934 P.2d 740, 742 (Wyo.1997)). See also Br......
  • Cloud v. State, No. S–11–0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2012
    ...651 P.2d 778, 789–90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo.1995).Normally, this burden is "heavy" in that appellant must " ‘clearly and exactly show the unconstitutionality beyond any reason......
  • Powers v. State, No. S-13-0052
    • United States
    • United States State Supreme Court of Wyoming
    • January 3, 2014
    ...challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo. 1995). That burden is a heavy one "in that the appellant must 'clearly and exactly show the unconstitutionality beyond any reaso......
  • Powers ex rel. Wyoming v. State, No. S–13–0052.
    • United States
    • United States State Supreme Court of Wyoming
    • February 12, 2014
    ...challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo.1995). That burden is a heavy one “in that the appellant must ‘clearly and exactly show the unconstitutionality beyond any reason......
  • Request a trial to view additional results
23 cases
  • Fraternal Order of Eagles Sheridan v. State, No. 05-57.
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 2006
    ...651 P.2d 778, 789-90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo.2001) (quoting V-1 Oil Co. v. State, 934 P.2d 740, 742 (Wyo.1997)). See also Br......
  • Cloud v. State, No. S–11–0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2012
    ...651 P.2d 778, 789–90 (Wyo.1982). [Appellant] bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo.1995).Normally, this burden is "heavy" in that appellant must " ‘clearly and exactly show the unconstitutionality beyond any reason......
  • Powers v. State, No. S-13-0052
    • United States
    • United States State Supreme Court of Wyoming
    • January 3, 2014
    ...challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo. 1995). That burden is a heavy one "in that the appellant must 'clearly and exactly show the unconstitutionality beyond any reaso......
  • Powers ex rel. Wyoming v. State, No. S–13–0052.
    • United States
    • United States State Supreme Court of Wyoming
    • February 12, 2014
    ...challenging the constitutionality of a statute bears the burden of proving the statute is unconstitutional. Pfeil v. Amax Coal West, Inc., 908 P.2d 956, 961 (Wyo.1995). That burden is a heavy one “in that the appellant must ‘clearly and exactly show the unconstitutionality beyond any reason......
  • Request a trial to view additional results

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