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Appeal in Strack, Saxony dispute to be heard Thursday

Tuesday, February 5, 2013

Another chapter in the ongoing dispute between a Fruitland limestone quarry and a neighboring high school will be written Thursday in the Missouri Eastern District Court of Appeals in St. Louis.

Strack Excavating LLC and the Missouri Department of Natural Resources Land Reclamation Commission (LRC) are appealing a September decision by Judge William L. Syler in Cape Girardeau County Circuit Court that said the LRC acted outside its authority in granting a permit to the quarrying operation a year before, in September 2011.

A three-judge panel will hear the case Thursday and determine whether the commission had the authority to issue an amended permit that allowed the mine to operate.

Strack has a mining permit on an adjacent site, as well as a land disturbance permit for the contested area. From September 2011 to September 2012, until Syler overturned the commission's permit, mining was allowed in both areas.

As part of the original permitting process, Saxony Lutheran High School, with a property line 55 feet from the proposed quarry's border, said the mine presented a health hazard to students and staff. The school was granted a hearing in July 2011 on Strack's October 2010 permit application.

The day before the weeklong hearing's conclusion, a state law was passed and immediately went into effect that said all mining operation boundaries must be 1,000 feet from schools.

Saxony rested its case, never calling expert witnesses to testify about potential health hazards, believing the law would automatically make permitting impossible, said Stephen G. Jeffery, attorney for Saxony Lutheran High School.

However, the LRC decided to grant the permit with the stipulation that Strack's boundary be pulled back to meet the buffer requirement.

"In other words, the commission moved the boundary on Strack's behalf," Jeffery said. "Up until this point in time, Strack has never, ever submitted any maps or anything to the DNR affirmatively moving their mine plan boundary."

Lacking any kind of modified map, Jeffery said, he considers Strack's boundary unchanged. In its appeal, Saxony contended that the commission had no authority to impose conditions, such as an amended boundary, in any mining permit. Syler agreed and vacated the permit.

Nancy Gonder, spokeswoman for the Missouri attorney general's office, representing the LRC and Strack, said the LRC acted legally.

"The commission's position is that it was authorized by the Legislature to issue the permit with an expanded buffer zone, and that it has statutory authority to impose permit conditions," Gonder said.

Saxony and Save Our Children's Health Inc. were granted standing in a dispute against another mine in the area, Heartland Materials LLC, requiring the LRC to set a public hearing. The LRC is not scheduled to meet again until March.

Messages left Monday for the owner of Strack Excavating were not returned. Saxony's school board president declined to comment, referring questions to Jeffery.



Pertinent address:

County Road 601, Fruitland, Mo.

815 Olive St., St. Louis, Mo.

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Lichtenegger shoved the 1000 foot bill through the legislature simply to stop the Strack quarry. Since when is it okay to change a state law for no other purpose than to stop a single local project well underway? By the way, the distance between the Delta quarry to the new Central High School is, as the crow flies, very likely less than 1K feet. Should that quarry be shut down now???? But, of course, I never measured it. Bottom line is that if there's no county zoning, no whining allowed.

-- Posted by JungleJim on Tue, Feb 5, 2013, at 12:00 AM

We need to dump the Dumpling.

-- Posted by jcjayof61 on Tue, Feb 5, 2013, at 7:13 AM

It will be interesting to see if anyone pursues this in our Cape Girardeau School District. I doubt Rep. Lichtenegger knew she would set a standard that could effect Cape. Maybe she did? Who know. Regardless, it goes to show that all the elected leaders from Jackson don't know what they are doing.

-- Posted by lincolnlawyer on Tue, Feb 5, 2013, at 7:38 AM

Good morning all - thanks for reading. My understanding of the statute that sets limitations on the distance a mine can be from a school is that it applies to new permits, so would not affect those issued before the law was passed. It reads as follows:

Missouri Revised Statutes, Chapter 444, Rights and Duties of Miners and Mine Owners, Section 444.771

August 28, 2012

Limitation on permits near an accredited school.

444.771. Notwithstanding any other provision of law to the contrary, the commission and the department shall not issue any permits under this chapter or under chapters 643 or 644 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 application for permits made under these provisions, 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 operation.

-- Posted by shayalderman on Tue, Feb 5, 2013, at 8:45 AM

Lincoln lawyer, what do you have against the rest of the elected officials from Jackson? It seems we have a great city council and local school board. Tell me exactly what is wrong with them?

-- Posted by jcjayof61 on Tue, Feb 5, 2013, at 9:18 AM

Just a quick google map look up and CTC is about 2000 feet from the quarry and Central is immediately north of that. Now, I was looking at where the mining is actually happening, not property boundaries which would be closer and probably very close to the 1000 ft. limit.

-- Posted by southeastreader on Tue, Feb 5, 2013, at 10:53 AM

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Map of pertinent addresses