WYMO Fuels, Inc. v. Edwards, s. 85-227

• Citation: 723 P.2d 1230
• Decision Date: 14 August 1986
• Docket Number: Nos. 85-227,85-228,s. 85-227
• Parties: WYMO FUELS, INC., Appellant (Respondent), Environmental Quality Council, Department of Environmental Quality, (Respondents) v. Guy W. EDWARDS, Ruth A. Edwards, Clarke K. Mills, and Doris I. Mills, Appellees (Petitioners). ENVIRONMENTAL QUALITY COUNCIL, DEPARTMENT OF ENVIRONMENTAL QUALITY, Appellants (Respondents), WYMO Fuels, Inc., (Respondent), v. Guy W. EDWARDS, Ruth A. Edwards, Clarke K. Mills, and Doris I. Mills, Appellees (Petitioners).
• Court: United States State Supreme Court of Wyoming

Page 1230

723 P.2d 1230

WYMO FUELS, INC., Appellant (Respondent), Environmental Quality Council, Department of Environmental Quality, (Respondents) v. Guy W. EDWARDS, Ruth A. Edwards, Clarke K. Mills, and Doris I. Mills, Appellees (Petitioners).

ENVIRONMENTAL QUALITY COUNCIL, DEPARTMENT OF ENVIRONMENTAL QUALITY, Appellants (Respondents), WYMO Fuels, Inc., (Respondent), v. Guy W. EDWARDS, Ruth A. Edwards, Clarke K. Mills, and Doris I. Mills, Appellees (Petitioners).

Nos. 85-227, 85-228.

Supreme Court of Wyoming.

Aug. 14, 1986.

Alan B. Minier and Thomas A. Nicholas, Hirst & Applegate, Cheyenne, for appellant WYMO.

A.G. McClintock, Atty. Gen. and Steven R. Shanahan, Sr. Asst. Atty. Gen., Cheyenne, for appellants Wyoming Environmental Quality Council and Wyoming Dept. of Environmental Quality.

Tom C. Toner, Redle, Yonkee & Arney, Sheridan, for appellees Edwards.

Rebecca W. Thomson and Richard M. Davis, Jr., Burgess & Davis, Sheridan, for appellees Mills.

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

THOMAS, Chief Justice.

The issue to be resolved in this case is whether condemnation of a way of necessity for a railroad spur track and a mine truck haul road, according to statute, dispenses with the statutory requirement that a resident or agricultural landowner or a surface landowner consent to mining operations, or an order in lieu of such consent in the case of the latter kind of ownership, be included in an application for a mining permit. The Department of Environmental Quality ruled that the resident or agricultural or surface landowner consent was not required because if it were, the right acquired pursuant to the eminent domain proceeding would be defeated. The district court held that an owner of land which had been condemned for such an easement was a surface owner for purposes of the mining permit statute and that consent, or, if appropriate, an order in lieu thereof, still must be included in the mining permit application after the condemnation order was entered. Other incidental issues are asserted by the parties, but essentially the dispute is resolved by our determination of this primary issue. We hold that after condemnation of such an easement the owner of the servient estate is not a surface owner for purposes of the mining permit application statute, and we reverse the order of the district court.

The several parties in these cases have submitted detailed statements of the issues. ¹ The cases are resolved, however, by disposition of these issues as presented by the parties:

Appellant WYMO Fuels, Inc.:

"A. DID THE ENVIRONMENTAL QUALITY COUNCIL ERR IN REFUSING TO REQUIRE EVIDENCE OF SURFACE OWNER CONSENT OBTAINED FROM APPELLEES MILLS OR EDWARDS PURSUANT TO W.S. 1977, § 35-11-406(b)(xi)?"

Appellants Department of Environmental Quality and Environmental Quality Council:

"I. DID THE ENVIRONMENTAL QUALITY COUNCIL ERR IN REFUSING TO REQUIRE A COAL MINE APPLICANT TO SHOW EVIDENCE OF CONSENT FROM SURFACE LANDOWNERS ADJACENT TO THE LAND TO BE MINED IN ACCORDANCE WITH W.S. 35-11-406(b)(xi)?"

Appellees Mills:

"3. Does the fact that Mills' property was condemned by WYMO for part of its mine permit area negate the statutory requirement for landowner consent to the mine and reclamation plan?"

Appellees Edwards:

"3. Does a condemnation order granting an applicant for a mining permit an easement to use a landowner's property for a coal haul road and a railroad spur line dispense with the surface owner consent requirements of the Wyoming Environmental Quality Act?"

As a preliminary matter, we also will address the question raised by the appellees Edwards as to whether a final, appealable order or judgment was entered by the district court.

WYMO Fuels, Inc. (hereafter WYMO) proposed to mine coal under lands owned by the State of Wyoming in the Powder River Basin. Processing facilities were to be located on lands owned by WYMO. On October 7, 1980, WYMO filed an application for a mining permit with the Land Quality Division of the Department of Environmental Quality. The Edwards and the Mills are sheep ranchers who own lands adjoining the lands to be mined by WYMO. Both the mine truck haul road and the railroad spur track contemplated by the permit application as necessary for the mining operations would traverse the lands of both the Mills and the Edwards. The application for the mining permit was rejected because it did not include the landowner consents according to the statute.

Section 35-11-406(b), 406(b)(xi) and (xii), W.S.1977, provides in pertinent part "(b) The application shall be accompanied by * * *

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"(xi) * * * [A]n instrument of consent from the resident or agricultural landowner, if different from the owner of the mineral estate, granting the applicant permission to enter and commence surface mining operation, and also written approval of the applicant's mining and reclamation plan. As used in this paragraph, 'resident or agricultural landowner' means a natural person or persons who, or a corporation of which the majority stockholder or stockholders:

"(A) Hold legal or equitable title to the land surface * * * acquired prior to January 1, 1970, * * *

"(B) Have their principal place of residence on the land, or personally conduct * * * ranching operations upon a * * * ranch unit to be affected by the surface mining operation, * * *.

"(xii) * * * [A]n instrument of consent from the surface landowner * * * to the mining and reclamation plan. If consent cannot be obtained as to the mining plan or reclamation plan or both, the applicant may request a hearing before the environmental quality council. The council shall issue an order in lieu of consent if it finds:

"(A) That the mining plan and reclamation plan have been submitted to the surface owner for approval;

"(B) That the mining plan and the reclamation plan is detailed so as to illustrate the full proposed surface use including proposed routes of egress and ingress;

"(C) That the use does not substantially prohibit the operations of the surface owner;

"(D) The proposed plan reclaims the surface to its approved future use, in segments if circumstances permit, as soon as feasibly possible."

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The Mills and the Edwards had refused to negotiate with WYMO for easements across their lands. Apparently their position was mandated by 20-year leases of surface rights to their lands which they previously had entered into with Neil Butte Company. When landowner consent for the railroad spur track and the mine truck haul road was sought from the Mills and the Edwards, WYMO was referred to Neil Butte Company, and it was not successful in obtaining that consent. The circumstances indicate that Neil Butte Company preferred to preserve its competitive position with respect to mining coal, although it never has obtained a mining permit.

Frustrated by the apparent refusal of the Mills, the Edwards, and Neil Butte Company to negotiate and agree to an easement for the railroad spur track and the mine truck haul road, WYMO proceeded in the United States District Court for the District of Wyoming to condemn the necessary easements pursuant to § 1-26-401, W.S.1977, [since repealed by S.L. of Wyoming 1981, ch. 174, § 3, and now appearing at § 1-26-815, W.S.1977 (1986 Cum.Supp.); S.L. of Wyoming 1981, ch. 174, § 1]. The statute pursuant to which WYMO Fuels proceeded provides in pertinent part:

"(a) Any person * * * or corporation authorized to do business in this state may appropriate by condemnation a way of necessity over, across or on so much of the lands or real property of others as necessary for the location, construction, maintenance and use of * * * electric power transmission lines, * * * spur tracks * * * or mine truck haul roads required in the course of their business for * * * mining * * * purposes, or for the transportation of coal from any coal mine * * *.

"(b) The right of condemnation may be exercised for the purpose of:

"(i) Acquiring new ways of necessity;

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"(d) A way of necessity for a mine truck haul road shall not be granted except where no other reasonable and practicable way is available. The petitioner for a mine truck haul road way of necessity shall show that his petition is made in good faith, that no other reasonable and practical way is available and that the mining operation is economically feasible * * *.

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"(f) * * * [T]he way of necessity appropriated is for a surface easement or right-of-way only, and shall not include * * * the underlying minerals or mineral estate. * * * [C]ompensation shall not be awarded for * * * the * * * mineral estate, but only for the actual rights and property claimed and appropriated."

In December of 1980, the United States District Court granted the relief requested by WYMO. The Order Granting Immediate Possession recited in pertinent part that:

" * * * Plaintiff * * * is hereby granted leave to enter upon and take possession of a permanent right-of-way easement to lay, maintain, inspect, replace, erect, operate and remove a railroad spur track and mine truck haul road, and appurtenances, over, through, upon, and across the real property described in the Plaintiff's Complaint for Condemnation immediately upon the Plaintiff's obtaining a mining permit from the Department of Environmental Quality of the State of Wyoming."

WYMO then included the order of the United States District Court for condemnation of the railroad spur track, mine truck haul road and appurtenances as a part of its application for a mining permit. The director of the Department of Environmental Quality issued WYMO a mining permit on September 28, 1981, but on December 21, 1981, the Mills and the Edwards filed their formal objections to this permit acquisition.

The Environmental Quality Council held a hearing on the objections filed by the Mills and the Edwards at the end of March, 1982. The Mills and the Edwards relied upon their status as resident or...