Stalkup v. State Dept. of Environmental Quality (DEQ)
| Decision Date | 31 August 1992 |
| Docket Number | 91-90,Nos. 91-89,s. 91-89 |
| Citation | 838 P.2d 705 |
| Parties | Rodney L. STALKUP; George William Snodgrass; and Phyllis J. Snodgrass, Appellants (Plaintiffs), v. STATE of Wyoming DEPARTMENT OF ENVIRONMENTAL QUALITY (DEQ); and Rissler & McMurry Company, a Wyoming Corporation, Appellees (Defendants). RISSLER & McMURRY COMPANY, a Wyoming Corporation, Appellants (Defendants), v. Rodney L. STALKUP; George William Snodgrass; and Phyllis J. Snodgrass, Appellees (Plaintiffs). |
| Court | Wyoming Supreme Court |
Jeffrey C. Gosman, Casper, for appellants in No. 91-89 and appellees in No. 91-90.
Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Deputy Atty. Gen., Steve Jones, Sr. Asst. Atty. Gen. and John Coppede, Asst. Atty. Gen., Cheyenne, for appellee State of Wyo. Dept. of Environmental Quality in No. 91-89.
Donald J. Rissler of Brown, Raymond & Rissler, Casper, for Rissler & McMurry Co., appellee in Nos. 91-89 and appellant in 91-90.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ.
This appeal involves a challenge by adjoining landowners under the Wyoming Environmental Quality Act (Act) to a limestone mine and mine haul road planned by Rissler & McMurry Company (Rissler) and approved by the State of Wyoming Department of Environmental Quality (DEQ). Rissler filed a notification and consent, but was not required to comply with several of the usual permitting requirements because it was exempt from those requirements and instead proceeded under the Act's ten-acre exemption. Appellants filed suit, arguing that the DEQ improperly approved Rissler's mining operation, and that Rissler was not in compliance with the Act. The district court dismissed appellants' suit.
We affirm.
Appellants raise the following issues:
1. The court erred in finding the action improperly venued against Rissler & 2. The court erred in finding the action improperly venued against the Department of Environmental Quality, hereinafter referred to as ("DEQ ").
McMurry Co., hereinafter referred to as ("Rissler ").
3. The court erred in dismissing the action, if improperly venued against any party.
4. The court erred in finding that the attorney general or the county attorney of any county must bring the action under Wyo.Stat. § 35-11-902.
5. The court erred in dismissing the action for failure to provide defendants 60 days notice under Wyo.Stat. § 35-11-902(c)(i) before filing suit.
6. Compliance with the provisions of the Wyoming Governmental Claims Act is not a precondition to maintaining a suit under Wyo.Stat. § 35-11-902 against the private defendant, Rissler.
7. Compliance with the provisions of the Wyoming Governmental Tort Claims Act is not a precondition to maintaining a suit under Wyo.Stat. § 35-11-902 against the defendant, DEQ.
8. Under the standards applicable to the motion to dismiss, the court erred in finding that there were no violations by the defendant, Rissler, of any rule, regulation, order or permit of the Environmental Quality Act and that the DEQ had not violated any nondiscretionary act or duty.
(a) The Supreme Court decision in Wymo Fuels v. Edwards, 723 P.2d 1230 (Wyo.1986) does not control the consent issue as it applies to the 10 acre exemption.
Appellee Rissler states the issues in the following way:
I. Whether the court erred in ruling appellants' cause of action was improperly venued.
II. Whether the court erred in ruling appellants failed to provide the necessary sixty (60) day notice requirement of Wyo.Stat. § 35-11-902.
III. Whether the court erred in ruling that only the attorney general can bring a claim pursuant to Wyo.Stat. § 35-11-901.
A. Can a private citizen bring a claim pursuant to Wyo.Stat. § 35-11-901?
B. If a private citizen can bring a claim pursuant to Wyo.Stat. § 35-11-901, does a private citizen have to comply with the Wyoming Governmental Tort Claims Act?
IV. Whether appellants state a cause of action pursuant to Wyo.Stat. § 35-11-902.
A. Is permission required from the appellants under Wyo.Stat. § 35-11-401(e)(vi)?
B. Are appellants an "affected landowner" once condemnation is complete?
C. Did the legislature intend to restrict the usefulness of the ten acre small mining permit?
D. Could appellants maintain an action pursuant to Public Law 95-87 as worded on August 3, 1977?
V. Whether the appellee, Rissler & McMurry Company, is entitled to sanctions pursuant to Rule [10.05] of the Wyoming Rules of Appellate Procedure?
Appellee DEQ raises the following issues:
I. Whether the Wyoming Environmental Quality Act provides for a private right of action to recover civil penalties.
II. Whether a district court is deprived of subject matter jurisdiction by a party's failure to follow the statutory requirements in pursuing a cause of action under the Wyoming Environmental Quality Act.
III. Whether the appellants' allegations that the DEQ violated the Environmental Quality Act were based on an erroneous reading of the Act and contrary to the caselaw in this jurisdiction.
Rissler wanted to open a limestone quarry in the Bessemer Bend area of Natrona County, Wyoming; the land on which the mine would sit is owned by the State of Wyoming. Rissler obtained a limestone After the DEQ approval, Rissler began negotiations with appellants who were adjoining landowners. Rissler sought an easement across appellants' adjoining land for a mine haul road to the planned limestone quarry. Rissler and appellants were not able to agree on an arrangement for a mine haul road, so Rissler initiated condemnation proceedings.
mining lease from the state. After obtaining the surface owner's consent, Rissler filed "Limited Mining Operations Notification of Operator and Consent of Surface Owner and Lessee" under the ten-acre exemption with the DEQ. The notice and consent that Rissler filed is distinct from a mining permit. The notice and consent procedure is used when the mine operation qualifies for the ten-acre exemption and is then exempt from the permit procedure. DEQ approved Rissler's notification and consent of limited mining operations on August 18, 1989. 1
Rissler was successful in the condemnation action and obtained a condemned thirty-foot surface easement across appellants' land for construction of a roadway in order to operate its limestone quarry. The day after the condemnation order was entered, appellants filed a complaint under the Act collateral to the condemnation action. Appellants named both Rissler and DEQ in their complaint in which they demanded that DEQ and Rissler comply with the permitting process and requested civil penalties and attorney fees.
Rissler filed a motion to dismiss on the basis of improper venue, lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Rissler also moved for costs and attorney fees under Wyo.Stat. § 1-14-128 (1988). DEQ also filed a motion to dismiss arguing that appellants did not have standing, the state was immune from a claim for damages, venue was improper, and appellants failed to provide the DEQ with the sixty-day prerequisite notice under the Act.
The district court granted DEQ's and Rissler's motions to dismiss. The court found, inter alia, that the complaint did not comply with the requirements of section 901 of the Act because it was improperly venued, that appellants had not provided required notice for the section 902 portion of their complaint, and it was not brought by a county attorney or the attorney general. The court dismissed the complaint, holding that appellants were not affected landowners under Wymo Fuels v. Edwards, 723 P.2d 1230 (Wyo.1986).
Appellants appealed, seeking review of the district court's dismissal. Rissler filed a cross-appeal challenging the district court's decision not to award sanctions for baseless pleadings against appellants and seeking appellate costs and penalties under W.R.A.P. 10.05.
The standard of review for summary judgment will be used to review the claims of appellants.
We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.
American Holidays, Inc. v. Foxtail Owners Ass'n, 821 P.2d 577, 578 (Wyo.1991) (quoting Zmijewski v. Wright, 809 P.2d 280, 282 (Wyo.1991)).
The parties in this appeal differ on the standard of review appropriate for this case. Appellants assert that the appropriate standard is the standard applicable to motions to dismiss, urging this court to liberally construe the pleadings in their favor and accept all facts in their complaint as true. DEQ argues that the motion to dismiss standard of review is inapplicable because the district court considered matters outside the pleadings and, therefore Our Wyoming rule provides:
the motion was automatically converted into a motion for summary judgment.
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Wyo.R.Civ.P. 12(b) (emphasis added).
This court has held that a Rule 12(b)(6) motion to dismiss is converted to a Rule 56 motion for summary judgment if materials outside the pleadings are considered. Cranston v. Weston County Weed and Pest Bd., 826 P.2d 251, 254 (Wyo.1992); Mostert v. CBL & Assoc., 741 P.2d 1090, 1097 (Wyo.1987). If affidavits are considered, conversion occurs automatically. Cranston, 826 P.2d at 254 (citing Torrey v. Twiford, 713 P.2d 1160, 1162-63, 1165 (Wyo.1986)).
Seven exhibits, including one affidavit, were submitted by appellees at...
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