V-1 Oil Co. v. STATE, DEPT. OF ENVIR. QUALITY
| Decision Date | 28 September 1988 |
| Docket Number | No. C88-0155J.,C88-0155J. |
| Citation | 696 F. Supp. 578 |
| Parties | V-1 OIL COMPANY, a Wyoming corporation, Plaintiff, v. STATE OF WYOMING, DEPARTMENT OF ENVIRONMENTAL QUALITY, and Steven P. Gerber, Defendants. |
| Court | U.S. District Court — District of Wyoming |
F.M. Andrews, Jr., Andrews and Anderson, Riverton, Wyo., for plaintiff.
Karen Byrne and Steve Jones, Atty. Gen.'s Office, Cheyenne, Wyo., for defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
A party moving for summary judgment has the burden of showing that there is no genuine issue as to any material fact, and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary judgment is appropriate when a moving party points to an absence of evidence to support the nonmoving party's case; a moving party is not required to support its motion with affidavits or other similar materials negating the nonmovant's claim. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
A material fact is one that might affect the outcome of a suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue as to a material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. A moving party is entitled to judgment as a matter of law where the nonmoving party has "failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 106 S.Ct. at 2553. The evidence of the nonmoving party is deemed true and all reasonable inferences are drawn in his favor. Anderson, 106 S.Ct. at 2514. The material facts in this case are undisputed.
Steven P. Gerber is the Northwest District Supervisor for the Wyoming Department of Environmental Quality, Water Quality Division. That district includes Fremont County, Wyoming, the location of Lander, Wyoming. Affidavit of Steven P. Gerber, ¶ 1. As part of Mr. Gerber's duties, he investigates discharges of pollution, such as petroleum products, into groundwater. Id. at ¶ 5. On 28 April 1988 Mr. Gerber was aware that the V-1 Oil station in Lander, Wyoming, was a source of gasoline pollution. Investigations previously conducted had indicated that this station was the source of nearby groundwater pollution. Id. at ¶¶ 3-4.
On 28 April 1988, at approximately 11:00 a.m., Mr. Gerber drove by the V-1 Oil station in Lander, Wyoming. He noticed that concrete over underground storage tanks was being removed. Mr. Gerber stopped and asked Rick Evans, manager of the V-1 Oil station, what they were doing. Mr. Evans refused to say and asked Mr. Gerber to leave. Mr. Gerber left. At approximately 3:15 p.m. Mr. Gerber drove by the station and saw Leonard Wood, area supervisor for V-1 Oil. Mr. Gerber stopped and asked Mr. Wood what they were doing. Mr. Wood refused to say but stated that Mr. Gerber was not welcome on the property. Mr. Gerber left the property. Id. at ¶¶ 7-8.
Throughout the day Mr. Gerber had been on the telephone with Steve Jones, Senior Assistant Attorney General for Wyoming, discussing a possible inspection of the underground storage tank area. Id. at ¶ 9. Mr. Jones sought a hearing with either Judge Ranck or Judge Kail, seeking a court order allowing inspection. A sufficiently immediate hearing could not be obtained. Affidavit of Steve Jones, ¶¶ 5-7. Mr. Jones consulted with three other attorneys, and all agreed that Wyo.Stat. § 35-11-109(a)(vi) (Supp. June 1988) permitted a warrantless inspection. Id. at ¶¶ 8-9.
At approximately 7:00 p.m. L.M. Chipley, Lander City Attorney, telephoned Mr. Jones about the situation. He agreed with Mr. Jones's interpretation of the statute, and he further agreed that he and a Lander policeman would accompany Mr. Gerber during his inspection. The policeman's presence was to deter violence. Id. at ¶ 11.
At approximately 8:20 p.m. Mr. Gerber, Mr. Chipley, and Lt. Metzger entered the V-1 premises. Mr. Gerber identified himself to Steve Drake, the attendant on duty. Mr. Gerber handed him a business card and informed him of the imminent investigation. Affidavit of Steven Gerber at ¶ 13. Acting under instructions, Mr. Drake told Mr. Gerber to wait until Mr. Evans had arrived. Deposition of Steve Drake at p. 29. Mr. Gerber instead inspected the excavation area. The tops of the underground storage tanks had been uncovered, indicating to Mr. Gerber that the tanks were not being removed, but that the tanks and lines leading up to the tanks were being tested for tightness and integrity. Mr. Gerber noticed very strong hydrocarbon odors. Affidavit of Steven Gerber at ¶¶ 14-15. He collected a soil sample from soil around the underground storage tank closest to the station. Lt. Metzger received an accident call requiring him to leave. After being informed of this call, Mr. Gerber felt that he should also leave. He informed Mr. Drake that he was leaving, but upon request agreed to stay until Rick Evans arrived. Mr. Gerber gave the soil sample to Lt. Metzger as he left. Id. at ¶¶ 16-18.
Rick Evans arrived at the station at approximately 8:30 p.m. He told Mr. Gerber to put the soil sample back. Mr. Gerber informed him that Lt. Metzger had the sample. Mr. Evans asked Mr. Gerber to leave, and he did so. Id. at ¶¶ 19-23. Mr. Gerber later obtained the soil sample from Lt. Metzger. He stored it for safekeeping at the DEQ office. In accordance with Wyo.Stat. § 35-11-109(a)(vi), Mr. Gerber supplied Mr. Wood and V-1 Oil's attorney with a report of the investigation. Id. at ¶ 23.
On 27 May 1988 V-1 Oil filed a complaint in this court under 42 U.S.C. § 1983, alleging deprivation of its rights secured by the fourth, fifth, and fourteenth amendments. Named as defendants were the state of Wyoming, the Department of Environmental Quality, and Steven P. Gerber. On 12 August 1988 defendants filed a motion for summary judgment. In V-1 Oil's brief opposing the motion, it stated that "the defendant State of Wyoming's Motion for Summary Judgment should be granted, pursuant to the State's immunity as provided by the 11th Amendment to the Constitution."1 The court agrees with this view. The eleventh amendment prohibits suits in federal court against a state or one of its agencies or departments unless consent is shown. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907-08, 79 L.Ed.2d 67 (1984); Meade v. Grubbs, 841 F.2d 1512, 1524-26 (10th Cir.1988). No consent has been shown. V-1 Oil argues that the suit should proceed against Steven P. Gerber in his individual capacity.2
The question arises whether the warrantless search was permissible. In deciding this, the court looks to Wyo.Stat. § 35-11-109(a)(vi), which provides as follows:
Defendant contends that this statute requires a warrant or a court order before an inspection may be made. This court disagrees.
The statute allows inspections under stated conditions. First, under the first sentence of subsection (vi), the inspector must qualify as one entitled to inspect. Mr. Gerber qualifies. Affidavit of Randolph Wood at ¶ 3. Second, provided the inspection is made at any reasonable time upon presentation of appropriate credentials and without delay, such a designated employee may inspect any method of operation required to be maintained pursuant to the Wyoming Environmental Quality Act, Wyo.Stat. §§ 35-11-101 through XX-XX-XXXX (Supp. June 1988). This authority is given to investigate actual or potential sources of air, water, or land pollution and to determine compliance or noncompliance with this act, and any rules, regulations, standards, permits, or orders promulgated under it. No one disputes that Mr. Gerber's inspection occurred while the station was open for business. No one disputes that Mr. Gerber presented appropriate credentials and inspected without delay.3 Because all conditions imposed by the statute were met, the court concludes that the inspection complied with the statute.
Plaintiff V-1 Oil seems to contend that a warrant was required since the statute nowhere mentions the words "warrantless search." In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), the Court examined a statute allowing inspections in the automobile junk yard industry. The Court concluded that warrantless searches were allowed under the statute even though the words "warrantless search"...
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V-1 Oil Co. v. State of Wyo., Dept. of Environmental Quality
...judgment and an award of attorneys' fees rendered by the district court. We affirm. BACKGROUND The district court, V-1 Oil Co. v. Wyoming, 696 F.Supp. 578 (D.Wyo.1988), found the following undisputed facts: Defendant-appellee Steven P. Gerber is an official of defendant-appellee the Wyoming......