                                            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



                                                    3
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.

                                                        4
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

                                                  5
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.


                                                   6
