Strack Excavating, LLC v. Missouri Department of Natural Resources, Land Reclamation Commission Saxony Lutheran High School

In the
Missouri Court of Appeals
Western District

STRACK EXCAVATING, L.L.C., 
 WD78015
Appellant,  OPINION FILED:
v. 
 APRIL 28, 2015
MISSOURI DEPARTMENT OF 
NATURAL RESOURCES, LAND 
RECLAMATION COMMISSION, 

Respondent, 
SAXONY LUTHERAN HIGH SCHOOL,
Respondent.
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Patricia Joyce, Judge
Before Division Three: Mark D. Pfeiffer, PJ., Gary D. Witt, Anthony Rex Gabbert, JJ
Strack Excavating, L.L.C. (“Strack”) appeals the circuit court’s judgment dismissing its
declaratory judgment action. Strack raises one point on appeal. Strack argues that the trial court
erred in dismissing its declaratory judgment action. Strack contends that its challenge to
§ 444.771, RSMo Cum. Supp. 2011, presents a justiciable controversy which is ripe and which is
not subject to the administrative exhaustion doctrine. We affirm.
Factual Background
Strack obtained a permit from the Land Reclamation Commission (now the Missouri
Mining Commission) after § 444.771, RSMo Cum. Supp. 2011, became effective. The statute
provides that the Commission “shall not issue any permit under this chapter…to any person
whose mine plan boundary is within one thousand feet of any real property where an accredited
school has been located for at least five years prior to such an application[.]” As a result,
Strack’s permit was granted under the condition that the mine plan boundary was at least 1,000
feet from the Saxony Lutheran High School.1
A short time after the issuance of the permit, Strack’s counsel contacted the attorney
general regarding the interpretation of the statutory phrase “the provisions of this section shall
not apply to any request for an expansion to an existing mine[.]” § 444.771, RSMo Cum. Supp.
2011. Strack was of the opinion that, because it was operating an “existing mine” as a result of
the permit issued to it in 2013, the quoted phrase exempted any expansion of Strack’s mine from
the 1,000-foot restriction of § 444.771, RSMo Cum. Supp. 2011. Noting that Strack did not
have an application on file to expand its mine, the attorney general understood the language to
provide a grandfather provision for quarries that were permitted before the statute was enacted in
July 2011.
Strack filed a petition for declaratory judgment on March 7, 2014, asking the trial court to
interpret the statute and determine the validity and applicability of the statute to Strack. The trial
court dismissed the declaratory action for lack of jurisdiction, noting that Strack had not
exhausted available administrative remedies as it had not filed an application for an expansion
1
The issuance of this permit was upheld in Saxony Lutheran High School, Inc. v. Mo. Dep’t of Natural
Res., 404 S.W.3d 902 (Mo. App. 2013).
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permit with the Commission. Thus, the court concluded that “the issues presented in the petition
are not ripe, and any decision by this Court would be merely advisory.” Strack appeals.
Declaratory Judgment
In its only point on appeal, Strack argues that the trial court erred in dismissing its
declaratory judgment action. Strack contends that its challenge to § 444.771, RSMo Cum. Supp.
2011, presents a justiciable controversy which is ripe and which is not subject to the
administrative exhaustion doctrine. We find no error.
“The standard of review for a trial court’s grant of a motion to dismiss is de novo.”
Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). “When this Court reviews the dismissal
of a petition for failure to state a claim, the facts contained in the petition are treated as true and
they are construed liberally in favor of the plaintiffs.” Id. “If the petition sets forth any set of
facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim.” Id.
Strack’s petition “states a cause of action if its averments invoke principles of substantive law
[that] may entitle [it] to relief.” Id. (internal quotations omitted).
To maintain a declaratory judgment action, Strack must demonstrate a justiciable
controversy for which it has no adequate remedy at law. Northgate Apartments, L.P. v. City of
North Kansas City, 45 S.W.3d 475, 479 (Mo. App. 2001). “A justiciable controversy exists
where the plaintiff has a legally protectable interest at stake, a substantial controversy exists
between parties with genuinely adverse interests, and that controversy is ripe for judicial
determination.” Levinson v. State, 104 S.W.3d 409, 411 (Mo. banc 2003). “A ripe controversy
exists if the parties’ dispute is developed sufficiently to allow the court to make an accurate
determination of the facts, to resolve a conflict that is presently existing, and to grant specific
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relief of a conclusive character.” Mo. Health Care Ass’n v. Attorney General of Mo., 953 S.W.2d
617, 621 (Mo. banc 1997).
Here, Strack argues that a justiciable controversy exists between it and the Commission
because each differs on the construction and interpretation of provisions of § 444.771, RSMo
Cum. Supp. 2011. In support of its argument, Strack cites to two letters. One letter is from
Strack to the attorney general asking its interpretation of the statutory phrase “except that the
provisions of this Section shall not apply to any request for an expansion to an existing mine or
to any underground mining operations.” § 444.771, RSMo Cum. Supp. 2011. The other letter is
the attorney general’s response. The attorney general’s letter states in pertinent part:
The Land Reclamation Program has not received from Strack, or any other
quarry operator similarly situated, an application to expand the acreage of a mine
plan so that the new plan boundary will be less than 1,000 feet from an accredited
school. Therefore, no decision interpreting the statute is pending. That said, I
have conferred with the Program, which understands the language you cite as
providing a “grandfather” provision for quarries that were not applicable to
quarries permitted after and subject to the statutory restriction.
Although it is undisputed that Strack desires to expand its mine to within 1,000 feet of the
property on which the Saxony Lutheran High School is located, as the letter points out Strack has
not filed an application to expand its mine. Instead, Strack relies on this letter from the attorney
general to create a justiciable controversy. However, this letter is nothing more than an advisory
opinion of one attorney in the attorney general’s office without the facts surrounding Strack’s
mine or details of its potential expansion in a permit application.2 As a result, Strack is
attempting to use a declaratory judgment action to adjudicate hypothetical or speculative
situations which may never come to pass. However, such tactic is an improper use of declaratory
2
We also note that this letter would not bind the Director or the Commission who would make the final
decision when, and if, an actual application is submitted.
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judgments. See Farm Bureau Town & Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348, 352
(Mo. banc 1995) (stating that a “declaratory judgment is not available to adjudicate hypothetical
or speculative situations which may never come to pass.”).
Furthermore, there is an adequate remedy at law for Strack to seek. Sections 444.772 and
444.773, RSMo Cum. Supp. 2011, were amended to authorize the Land Reclamation Program
Director, on behalf of the Department of Natural Resources, to make a decision to issue or deny a
permit application, subject to appeal to the Mining Commission. An appeal must be filed with
the Administrative Hearing Commission, which, pursuant to Section 621.250, RSMo 2000, holds
a hearing, creates a record, and makes a recommended decision for the Mining Commission to
consider. “Exhaustion of administrative remedies is often said to be a jurisdictional prerequisite
to a declaratory judgment action.” Farm Bureau Town & Country Ins. Co., 909 S.W.2d at 352.
In this case, Strack has administrative remedies that have not been exhausted as it has not yet
applied for a permit to expand its mine.
It may be that a declaratory judgment action would be appropriate if Strack were
claiming that a planned expansion of its mine was wholly exempt from any permitting
requirements. But that is not Strack’s claim. Even if Strack is not subject to the 1,000 foot
restriction contained in § 444.771, RSMo Cum. Supp. 2011, it concedes that any expansion of its
mine is subject to permitting under the Land Reclamation Act.
Despite this failure to apply for a permit, Strack argues that it is entitled to seek a
declaratory judgment action before proceeding in defiance of the statute. While a party is
entitled to seek a declaratory judgment action before proceeding in defiance of a statute, Borden
Co. v. Thomason, 353 S.W.2d 735, 741 (Mo. 1962), Strack has failed to show that applying for a
permit would be in defiance of § 444.771, RSMo Cum. Supp. 2011, or any other statute. See
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e.g., Levinson, 104 S.W.3d 409 (Appellant had to choose between being a bartender and
potentially violating his probation or resign. Appellant resigned and then filed a declaratory
judgment seeking the interpretation of the liquor statute in question.). Here, the simple act of
applying for a permit to expand its mine would not result in defiance of § 444.771, RSMo Cum.
Supp. 2011, even if its expansion plan included expanding Strack’s mine to less than 1,000 feet
from an accredited school. In the event Strack’s expansion plan is not in accordance with
§ 444.771, RSMo Cum. Supp. 2011, Strack would not be acting in defiance of the statute.
Instead, its application would simply be denied.
As Strack’s declaratory judgment petition was not ripe because it failed to establish a
justiciable controversy and failed to exhaust its administrative remedies, the trial court did not
error in dismissing Strack’s petition for lack of jurisdiction. Point one is denied.
We conclude, therefore, that the trial court did not error in dismissing Strack’s petition for
lack of jurisdiction because Strack failed to establish a justiciable controversy and failed to
exhaust its administrative remedies. We affirm the circuit court’s judgment.
Anthony Rex Gabbert, Judge
All concur.
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