Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Cole County, Missouri. The Honorable Patricia Joyce, Judge.
For Appellant: Timothy Duggan, Jefferson City, MO.
For Respondents: Stephen Jeffery, Bruce Morrison, Ellisville, MO.
Before Division Three: Mark D. Pfeiffer, PJ., Gary D. Witt, Anthony Rex Gabbert, JJ. All concur.
Anthony Rex Gabbert, Judge
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.
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.
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 permit with the Commission. Thus, the court concluded that " the issues ...