Judge denies quarry request to operate pending appeal

Wednesday, September 26, 2012 ~ Updated 5:34 PM

Saxony Lutheran High School won another battle in court Wednesday in its fight against quarries operating near the school.

Judge William Syler ruled that Strack Excavating LLC won't be able to continue operating its quarry near the school while it appeals Syler's decision from earlier this month invalidating its permit to operate the quarry.

Strack Excavating's motion to amend a judgment that vacated its surface-mining permit near Saxony Lutheran High School was denied Wednesday by Syler.

The motion, filed by Strack's attorney Brian McGovern of Chesterfield, Mo., claimed that vacating the permit, as opposed to allowing Strack Excavating and Saxony Lutheran to work under the permit's conditions, works an undue hardship on Strack by effectively shutting down its 76-acre limestone quarry near the school.

Judge Syler denied Strack's motion at the conclusion of a teleconference between the attorneys for the parties.

Stephen Jeffrey, attorney for Saxony Lutheran, said, "Our position was that Strack's motion presented no new factual information or raised any new legal arguments. They were merely asking the court to change its mind from its earlier decision."

Saxony Lutheran High School won a victory Sept. 12 against Strack and the Department of Natural Resources' Land Reclamation Commission when Syler overturned the commission ruling that awarded Strack a permit to construct a limestone quarry adjacent to the school's property.

Saxony Lutheran had appealed the issuance of Strack's permit, arguing the land commission was prohibited by law from issuing a permit to a quarry that has a boundary within 1,000 feet of an accredited school. At the time the permit was issued in September 2011, Strack's mine plan boundary was only 55 feet from Saxony's property, but the commission modified the permit to require a larger buffer before giving approval, in response to a change in state law.

The school contended that the law did not give the commission the power to impose a special condition that would grant Strack a permit so long as its mining plan boundary was relocated 1,000 feet or more away from Saxony property.

Judge Syler agreed with Saxony Lutheran.

"If the General Assembly had intended to confer statutory authority on the Commission to impose conditions in a permit, then it would have expressly done so," he said in his Sept. 12 opinion which reversed the commission's decision and vacated Strack's permit.

The Land Reclamation Commission took no part in Strack's denied motion to amend the judgment.

J.W. Strack, owner of Strack Excavating, plans to appeal.

"Judge Syler did what he thought was right," Strack said, "but we'll appeal the decision."

Strack declined to elaborate or answer more questions.

klewis@semissourian.com

388-3635

Pertinent address:

44 N. Lorimier, Cape Girardeau, MO

County Road 601, Fruitland, MO

Map of pertinent addresses

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