Saxony Lutheran High Sch., Inc. v. Mo. Dep't of Natural Res.
| Decision Date | 13 August 2013 |
| Docket Number | No. ED 99038.,ED 99038. |
| Citation | 404 S.W.3d 902 |
| Parties | SAXONY LUTHERAN HIGH SCHOOL, INC., Respondent, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES and Missouri Land Reclamation Commission, and, Strack Excavating, LLC, Appellants. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Chris Koster, Jennifer S. Frazier, Jefferson City, MO, Brian E. McGovern, Robert A. Miller, St. Louis, MO, for appellants Strack Excavating.
Stephen G. Jeffrey, Bruce A. Morrison, St. Louis, MO, for respondent.
Appellants Strack Excavating, LLC (Strack) and the Missouri Land Reclamation Commission (Commission) appeal the circuit court's judgment reversing the Commission's issuance of a permit to Strack for construction of a limestone mining operation. Strack and the Commission argue the Commission properly imposed a condition on Strack's application that brought it into compliance with legislation passed while the permit application was pending, and thus the Commission's conditional approval was appropriate. Saxony Lutheran High School (Saxony) argues that by imposing a condition on the permit, the Commission acted in excess of its power, and the circuit court properly vacated the permit. We reverse.1
On November 4, 2010, Strack submitted an application to the Missouri Land Reclamation Commission for a permit to operate a limestone mine near Fruitland, Missouri.2 Saxony is located directly south of Strack's property, and the two properties share a border. Saxony is an accredited school and has operated in that location since November of 2004.
Pursuant to the Missouri Land Reclamation Act (Act),3 Strack submitted its application for a permit to operate a limestone mine on 76 acres of its property. After Strack was notified by the Department of Natural Resources (DNR) that its application was complete, Strack published notice of its application pursuant to Section 444.772.10.4 After considering comments received by the public, the Director of the DNR (Director) made his recommendation to the Commission as required by Section 444.773.3, which was for approval of the permit. Saxony requested a formal public hearing to contest the permit, which the Commission granted under Section 444.773.3. The issue at the hearing was whether Saxony's health or livelihood would be unduly impaired by impacts from the operation of Strack's proposed limestone mine. A hearing officer conducted the hearing on July 5, 6, 7, and 12, 2011.
On July 11, 2011, Governor Jay Nixon signed Missouri House Bill 89, which became effective immediately, pursuant to an emergency clause in the bill. This bill created Section 444.771, which prohibits the Commission from issuing a surface mining permit for any mine plan whose boundary is within 1000 feet of “any real property where an accredited school has been located for at least five years.” Strack's permit application listed its southern “approximate limit[ ] of mining” just 55 feet from Saxony's northern border.
Because Section 444.771 became effective before the last day of the hearing, Saxony requested that the hearing officer cease taking new evidence and deny Strack's permit application in light of its noncompliance with the new law. The hearing officer denied this request for an accelerated determination. Strack filed a memorandum consenting to revise its mine plan and to move the mine's boundary north, 1000 feet from Saxony's property. Strack also filed a motion requesting issuance of its permit pursuant to the revised mine plan boundary. The hearing officer issued his recommendation on August 24, 2011, which, first, contained findings that Saxony had not met its burden to show that its health or livelihood would be unduly impaired by Strack's mine operation, under both the old and new statutory requirements. Second, the hearing officer found that the nature of Strack's property was such that its mine plan could be revised to accommodate the new 1000–foot buffer requirement of Section 444.771, and the hearing officer recommended approving Strack's permit subject to the condition that Strack's mine plan be revised to accommodate the 1000–foot buffer.
The Commission adopted the hearing officer's recommendation and issued its Final Order on September 22, 2011. The order granted Strack a permit to operate a mine, subject to the condition that the mine plan boundary be 1000 feet from Saxony's property line.
Saxony requested judicial review under Section 536.100, arguing that the Commission did not have statutory authority to impose conditions on approval of Shack's permit, but rather had only the authority to approve or deny the application as written. The trial court agreed, vacated Strack's permit, and remanded to the Commission. This appeal follows.
Section 536.140 governs this Court's review of a contested administrative case. Phillips v. Schafer, 343 S.W.3d 753, 757 (Mo.App. E.D.2011). On appeal from a circuit court's review of an agency decision, we review the decision of the agency rather than that of the circuit court. Id. We uphold the agency's decision unless it (1) is in violation of constitutional provisions; (2) is in excess of the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is unauthorized by law for any other reason; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious, or unreasonable; or (7) involves an abuse of discretion. Id. We review questions of law de novo. Id.
Though Saxony is the Respondent on appeal, as the non-prevailing party at the agency level, Saxony filed the first brief on appeal. Mo. R. Civ. P. 84.05(e).5 In it, Saxony raises two points. First, Saxony argues the Commission acted in excess of its statutory authority when it conditioned approval of Strack's permit application upon Strack's revision of its mine plan boundary to 1000 feet from Saxony's property. Second, Saxony argues that by approving Strack's permit subject to modification, the Commission effectively violated Section 444.772.10 in that the public was not properly notified of the acreage of Strack's new mine plan.
Saxony argues the Commission acted in excess of its statutory authority when it issued Strack's permit, because the Act does not give the Commission authority to condition approval of a surface mining permit application upon a revision that would bring the mine plan into compliance with statutory boundary requirements. We disagree.
The fundamental principle governing this issue is that administrative agencies, as products of the legislature, “possess only those powers expressly conferred or necessarily implied by statute.” Bodenhausen v. Mo. Bd. of Registration for Healing Arts, 900 S.W.2d 621, 622 (Mo. banc 1995). Where there is no express power granted to an agency for a particular action, such power is properly implied “only ... if it necessarily follows from the language of the statute.” Scheble v. Mo. Clean Water Comm'n, 734 S.W.2d 541, 556 (Mo.App. E.D.1987). Yet, remedial legislation, such as the Act, “should be broadly and liberally construed to effect its plain purpose.” See id.
The stated purpose of the Act is to “strike a balance” between surface mining of materials and reclaiming land that has been disturbed by such surface mining, for the conservation of land and preservation of natural resources. Section 444.762; Lincoln Cnty. Stone Co., Inc. v. Koenig, 21 S.W.3d 142, 145 (Mo.App. E.D.2000). To that end, among the powers granted to the Commission under the Act is the power to “[e]xamine and pass on all applications and plans and specifications submitted by the operator....” Section 444.767.3. Before the application reaches the Commission, however, the Director initially receives the application and reviews it. Once the Director deems the application complete, there is a period of public notice and comment, followed by a recommendation by the Director for issuance or denial of the application. Sections 444.772.10; 444.773.1. If the Director recommends issuance, the Act allows an opportunity for those whose health, safety, or livelihood may be harmed by approval of a particular permit to request a formal hearing by the Commission, in order for the Commission to resolve the public's concerns before passing on the application. Section 444.773.3. The Commission then makes the final decision on the permit application. Section 444.789.3.
However, the Act is silent as to whether the Commission's final decision, passing on the permit application and resolving the concerns of the public, is limited to approving or denying the permit application as written, or includes the ability to place conditions on the application before approving it. We find no Missouri case addressing this issue. An even narrower issue is presented here: that is, whether the Commission may condition approval specifically by requiring a modification to the mine plan that would bring the proposed operation into compliance with existing law.6
Regarding the more general question of whether the Commission has authority under the Act to condition permit approval for any reason, Saxony argues the Commission does not have such authority by comparing the Act to the statutory schemes of several other agencies housed in the DNR. Saxony relies principally on the case of Mueller v. Missouri Hazardous Waste Management Commission, 904 S.W.2d 552 (Mo.App. S.D.1995). In that case, the court found that the Missouri Hazardous Waste Management Commission (HWMC) did not have statutory authority to modify permits when reviewing them on appeal from issuance by the DNR, in part because the legislature had expressly empowered other DNR commissions to do so, but had not used the same language with respect to the...
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