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State ex rel. Ideker, Inc. v. Garrett

Court of Appeals of Missouri, Western District, Writ Division

July 14, 2015

STATE OF MISSOURI ex rel. IDEKER, INC., and MISSOURI DEPARTMENT OF NATURAL RESOURCES, Relators,
v.
THE HONORABLE KENNETH R. GARRETT III, Judge of the Circuit Court of Jackson County, Missouri, Respondent

Page 744

R. Dan Boulware, Edwin H. Smith, and Sharon Kennedy, St. Joseph, MO; G. Edgar James and Adam R. Troutwine, Kansas City, MO, Attorneys for Relator Ideker, Inc.

Chris Koster, Attorney General, John K. McManus and Timothy A. Blackwell, Assistant Attorneys General, Jefferson City, MO, Attorneys for Relator Missouri, Department of Natural Resources.

Bruce A. Morrison, St. Louis, MO; William T. Session, Kansas City, MO; Kenneth B. McClain and Joseph S. Gall, Independence, MO, Attorneys for Petitioners in the Underlying Action.

Before Writ Division: Mark D. Pfeiffer, Presiding Judge, and Victor C. Howard and James Edward Welsh, Judges. Victor C. Howard and James Edward Welsh, Judges, concur.

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ORIGINAL PROCEEDING IN PROHIBITION

Mark D. Pfeiffer, Presiding Judge.

This action arises out of petitions in prohibition filed by Ideker, Inc. (" Ideker" ) and the Missouri Department of Natural Resources (" MDNR" ) in response to an Order dated May 4, 2015, issued by the Honorable Kenneth R. Garrett III, Jackson County Circuit Judge (" Respondent" ). Respondent's Order denied Ideker's and MDNR's motions to dismiss the underlying lawsuit styled Concerned Citizens for AIR, Inc., et al., Plaintiffs v. Missouri Department of Natural Resources, et al., Defendants, Case No. 1316-CV25675, pending in the Circuit Court of Jackson County, Missouri (" Underlying Lawsuit" ).[1] This Court issued its Order dated June 5, 2015, staying any action in the Underlying Lawsuit until further order of this Court.

We now issue our peremptory writ of prohibition and remand this case with instructions.[2]

Factual and Procedural Background[3]

On October 11, 2013, Concerned Citizens for AIR, Inc., a not-for-profit corporation, and the City of Grandview, Missouri (collectively, " Grandview" ), filed the Underlying Lawsuit, a Petition for Judicial Review and Declaratory and Injunctive Relief and Motion for Temporary Restraining Order. Grandview's petition alleged that in 2012 MDNR unlawfully approved an air emissions permit (Permit No. 1343A), which failed to meet lawful air quality emission requirements, for Ideker's operation of a portable hot mix asphalt plant at 5600 East 150 Highway in Kansas City, Missouri. The petition also alleged that MDNR intended to issue Ideker another permit to authorize a permanent stationary asphalt plant in the same location (Permit No. 1369). The first paragraph of the petition summarized Grandview's claims and requested " judicial review of a determination by the [MDNR] to approve Permit No. 1343A," " an order vacating Permit No. 1343A," and an order enjoining the " imminent issuance of Proposed Permit No. 1369."

On October 23, 2013, the circuit court granted Grandview's request for a temporary restraining order, restraining MDNR from issuing the permanent permit for at

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least fifteen days. Two days later, Ideker filed a motion to intervene as of right, which motion was denied. This Court considered Ideker's petition for a writ of mandamus and issued an opinion directing the circuit court to allow Ideker to intervene in the Underlying Lawsuit. See State ex rel. Ideker, Inc. v. Grate, 437 S.W.3d 279 (Mo. App. W.D. 2014). On ...


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