Petition for Writ of Certiorari — Rissler & McMurry Co. v. Wyoming

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Court, U.8.

FILED

96 601 OCT 1 119%

QFFIGE OF THE CLERK

oO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

RISSLER & MCMURRY CO,

a Wyoming corporation,

Petitioner,

Vv.

THE STATE OF WYOMING,

Respondent.

On Petition For Writ Of Certiorari

To The Wyoming Supreme Court

PETITION FOR WRIT OF CERTIORARI

JOHN R. HURSH

Attorney for Petitioner

Central Wyoming Law

Associates, P.([™

105 South ERECE I VED

P.O. Box 17

Riverton, W ming R250

(307) 856-4167 16 1996

OFFICE UF THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the opinion and ruling of the

Wyoming Supreme Court in failing to allow a forum for

petitioner’s constitutionally based takings claims at the Rule

12 threshold was contrary to this Court’s opinion in Lucas

v. South Carolina Coastal Council, (505 U.S. 1003, 112

S.Ct. 2886, 120 L.Ed 2d 798) (1992).

y Whether the opinion and ruling of the

Wyoming Supreme Court in requiring absolute exhaustion

of administrative remedies where a facially invalid rule was

alleged to exist was contrary to this Court’s opinion in

Lucas and Yee v. City of Escondido, 503 U.S. 519, 112

S.Ct. 1552, 118 L.Ed.2d 153 (1992).

a Did the Wyoming Supreme Court err in

applying a Wyoming Statute, W.S. § 35-11-1001(b), to

limit the operation of the takings clause of the Fifth

Amendment of the U.S. Constitution by denial of a forum.

PARTIES

The petitioner is Rissler & McMurry Co., a

Wyoming corporation.

The respondent is the State of Wyoming.

TABLE OF CONTENTS

Page

EE ili dos 4s Gog ee a a 8 OS Kea l

are ea ae 1

Date of Opinion Sought to be Reviewed ......... 1

Date of Denial of Petitioner’s Petition for Rehearing . 1

Constitutional and Statutory Provisions Involved .... 1

eg ee cs po ck whee 2

Reasons for Granting Writ of Certiorari ......... 9

Re ee a garg ee heh kas ok 6 8 ss 9

The Wyoming Supreme Court elected not

to follow Lucas v. South Carolina Coastal

Council and refused to provide a forum

for petitioner’s Fifth Amendment takings

claims.

ee gs og se ba e's 0 11

The Wyoming Supreme Court elected to

ignore Lucas and Yee v. City of

Escondido, which vest a takings claim

upon enactment of a facially invalid rule

without further administrative

proceedings.

The Wyoming Supreme Court applied a

state legislative enactment as a substantive

and procedural limitation upon petitioner’s

access to a forum to adjudicate its Fifth

Amendment based takings claims.

NS 0a i ar I i ee 15

ili

pe PR a eee gy ee eee eee

Opinion of Wyoming Supreme Court

Decision Letter of

Wyoming State District Court

Pip So cigs eck ea ea Se Oe

Petition for Rehearing

Order Denying Petition for Rehearing

Ampeeee: © os ke rae a ae

Verified Complaint (without attachments)

AE Fs go. ik ek ee ee oe ee

Replication of Wyoming Statutes

TABLE OF AUTHORITIES

Page

FEDERAL CASES

First English Evangelical Lutheran Church v.

Los Angeles County, 2

We Sbsttty WE ON. 8 kis. 0 osu “a 6108 hehe hers 16

First Lutheran Church v. Los Angeles County,

482 U.S. 304, 320 (1987) 107 S.Ct. 2378

De BAe PC RTD <6 ise ok ow eeu 13, 15

Jacobs v. United States,

ee 5d eh NS a BE ER 15

Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 112 S.Ct. 2886

Rae Shs A PE CRE eee ee ks 2, 9, 11-16

MacDonald, Sommer & Frates v. Yolo County,

a NE iis We hrs iw ca ew AG ks ee 13

Penn Central Transportation Co. v. New York City,

438 U.S. 104, 57 L. Ed. 2d 631,

DO: SANT bes ee eo we oi a be 9, 16

Pennsylvania Coal Co. v. Mahon, -

260 U.S. 393, 67 L.Ed 322, 43 S.Ct. 158 (1922) ... 9

Yee v. City of Escondido,

503 U.S. 519, 112 S. Ct. 1522,

Cae Sa Oe Ae Re ss he be eR 11-16

WYOMING CASES

Kerr-McGee Corporation v. Wyoming Oil & Gas

Conservation Commission,

903 P.2d S57 Loe, Se kan he i ee es 12

Matter of Bessemer Mountain,

856 P.2d 450 CWyo. T9938) nce ec ee 7, 424 13

Snodgrass v. Rissler & McMurry,

S08 P.2d 11S CG see ek ae eS Re, 13

Stalkup v. State of Wyoming, Dept. of

Environmental Quality,

S58 P.2d TOS CW Gee ks wes we 13

Statutes and Regulations:

Wyo. Stat. 5 1G evi e Or OO ew an otha 9

Wyo. Stat. § S5-Eb-E EROS oo ke is his ins 8

Wyo. Stat. § 35-11-22 21ONV) ck ce ee et vee 1, 11

Wyo. Stat. § 35-08 ee ee ks 5, 6

Wyo. Stat. § 3S5-11-G0GHRD 3's tee i vs 6,7

OPINIONS BELOW

The opinion of the Wyoming Supreme Court appears

in the Pacific Reporter at 917 P.2d 1157. It is attached as

Appendix A for the convenience of the Court.

The Decision Letter of the State District Court is

unpublished. It is attached as Appendix B.

The Petition for Rehearing to the Wyoming Supreme

Court is attached as Appendix C.

The Order Denying Petition for Rehearing is

attached as Appendix D.

STATEMENT OF JURISDICTION

This Court has jurisdiction to review the decision of

the Wyoming Supreme Court pursuant to 28 U.S.C. 1257 and

Supreme Court Rule 10(e).

DATE OF OPINION SOUGHT TO BE REVIEWED

The opinion sought to be reviewed was issued June 5,

1996.

DATE OF DENIAL OF PETITIONER’S PETITION

FOR REHEARING

The Petition for Rehearing was denied by the Wyoming

Supreme Court on July 16, 1996.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The decision of the Wyoming Supreme Court is in

conflict with this Court’s opinions relative to the takings

provisions of the Fifth Amendment to the U.S. Constitution.

Also questioned is the application of a Wyoming Statute,

W.S. § 35-11-1001(b), to defeat the operation of the takings

Clause. The facially invalid rule as alleged in the complaint is

in contradiction to W.S. 35-11-112(a)(v).

STATEMENT OF THE CASE

A. CHRONOLOGY

This case presented claims for temporary and

permanent takings under the Fifth Amendment of the United

States Constitution and similar provisions of the Wyoming

Constitution. The verified complaint was originally filed in

the State Court of Wyoming, First Judicial District, seeking

takings damages resulting from petitioner’s inability to obtain

a hearing and mining permit to mine limestone. The property

right involved to mine the limestone derived from a 10 year

limestone mining lease issued to the petitioner by the State of

Wyoming in 1989, on a section of land owned by the state.

The fair market value of the limestone was in excess of 40

million dollars.

The State trial court dismissed the complaint upon a

Rule 12(b)(6) motion (Appendix E). The trial court

interpreted Lucas v. South Carolina Coastal Council, 505

U.S. 1003, 112 S.Ct. 2886 120 L.Ed 2d 798 (1992) to

require complete exhaustion of state administrative remedies

before raising a takings claim and relied on W.S. § 35-11-

1001(b) to provide the sole takings remedy in this case. The

State trial court elected to deny a forum to determine the

existence of administrative futility and opted not to address

the existence of a facially invalid rule enacted by the

Environmental Quality Counsel (EQC), specifically to defeat

petitioner’s mine permit although alleged as such in the

complaint.

The Wyoming Supreme Court affirmed the Rule 12

(b)(6) dismissal of petitioner’s complaint (Appendix A). The

Wyoming Supreme Court rejected a forum to determine the

factual basis for application of the futility doctrine and dodged

the issue of a facially invalid rule as not being decided below.

The court went outside the record to justify its findings,’ and

subsequently denied petitioner’s request for a rehearing

(Appendix C and D). The Wyoming Supreme Court opted

for complete exhaustion of administrative remedies and in a

Rule 12 stature made its own fact finding that "evidence" of

administrative futility had not been demonstrated. The court

further opined that the Wyoming legislature, by enactment of

W.S. § 35-11-1001(b), created the sole takings remedy only

if a mine permit is denied on certain limited grounds.

B. FACTUAL BACKGROUND

The factual background giving rise to petitioner’s

takings claims as filed in the State Court are summarized from

the verified complaint (Appendix E) since this was a Rule 12

disposition below.”

The verified complaint set up two separate and distinct

"takings" claims against the State of Wyoming. The first

claim is for a "temporary taking" of the petitioner’s benefits

of ownership and use of the State mining lease for its planned

initial mining of 40 acres of limestone. This claim is based

upon statutory violations, due process, and regulatory takings

theories and alleges that the State of Wyoming, by and

through the Environmental Quality Council (EQC), has acted

in such a way to delay, frustrate and render futile the

petitioner’s efforts to get a hearing or to obtain an initial 40

acre small mine permit under its State mining lease for the

period commencing in April of 1992 and continuing until

January 31, 1994, upon the filing of this lawsuit and the

subsequent withdrawal of its permit application. Numerous

'The Petition for Rehearing explicitly points out the materials

outside the Rule 12(b)(c) record relied upon in the Wyoming Supreme

Court’s opinion to rationalize its results (Appendix C).

This notwithstanding the ventures outside the record by the

Wyoming Supreme Court as previously noted.

distinct and continuous "takings acts" are alleged to have

occurred in this intervening period of time. Violations of the

Fifth and Fourteenth Amendments of the United States

Constitution and Article I, §§ 33 and 35 of the Wyoming

Constitution are alleged. The temporary claim addresses the

violations of law and delays in the administrative process in

trying to get a hearing and a formal decision on its pending

small mine permit.

The second claim is for a "permanent takings" of the

remainder of petitioner’s investor backed expectations for this

mining lease involving an additional 110 acres of the lease.

This taking is alleged to have become permanent and vested

in January of 1994 when the EQC enacted a facially invalid

rule and again unlawfully dismissed the statutory required

hearing date. Accordingly, the complaint alleges

administrative futility to continue the permitting process to get

any hearings or mine permits at all to utilize its mining lease

for its planned future investor backed expectation of obtaining

any permit for the remaining 110 acres of feasible limestone

mining under the lease. Violations of the same federal and

state constitutional provisions are alleged.

Separate and distinct damages are requested for the two

different takings claims theories. The temporary takings of

the petitioner’s property rights in the pending 40 acre small

mine permit totalling 2,923,840 tons of limestone is valued at

a fair market value of $20,466.880. The permanent takings

involves the remaining 110 acres of the petitioner’s investor

backed expectation in the mining lease. This claim totals

another 2,834,289 tons with a fair market value of

$19,840.023.00.

The history of this case begins on July 2, 1989 when

the elected Board of Land Commissioners of the State of

Wyoming, for a valuable consideration, granted the petitioner

Rissler & McMurry, a Limestone Mining Lease on a section

of State owned school land known as Bessemer Mountain

located in Natrona County, Wyoming. This lease was for a

period of 10 years and was issued for the specific purpose of

mining limestone only. In this lease, the State of Wyoming

granted petitioner a property right for the specific purpose of

mining limestone. The leasehold covered 640 acres and was,

at the time of the filing of the complaint, in full force and

effect.

At the time of the issuance of the mining lease by the

petitioner in 1989, there were no statutory or regulatory

restrictions or regulations concerning this section of land in

effect, excepting the requirement to obtain a mine permit

prior to commencing the mining of the limestone.

In order to obtain the benefit and use of its limestone

mining lease, the petitioner submitted its Application for

Small Mine Permit under W.S. § 35-11-4011 to the

Department of Environmental Quality (DEQ) on December

17, 1991. This initial application was to mine limestone on an

initial 40 acres of the 640 acre lease. Likewise, as of the date

of filing of the small mine permit application, there were no

regulations or restrictions of the use of this section of

respondent’s land.

The Department of Environmental Quality is the

administrative processing agency for the State of Wyoming

for mine permit applications. The ultimate decision making

authority on the issuance of a mine permit is vested in the

Environmental Quality Council (EQC). The statutory scheme

of the State of Wyoming with respect to mining permits is

written in such a way that unless certain statutory

disqualifying conditions exist, a mining permit is to be issued

as a matter of course by the EQC. The DEQ is charged with

the administrative duty to determine compliance with the

Statutory requirements and conditions for the issuance of the

permit. When the mine permit application is deemed in

compliance with the requirements of the law, the DEQ

certifies the permit application as technically complete to the

EQC. W.S. § 35-11-406(k) then specifically mandates that the

EQC shall hold the public permit hearing within 20 days after

publication of notice. If compliance with the statutorily

defined conditions has been certified by the DEQ to exist, the

mine permit must be issued by the EQC unless the mining

activity falls within the narrow exceptions of W.S. § 35-11-

401 or unless the land in question is determined to be rare and

uncommon under the legislative definition in effect at the

time.

Mt Vee carmen

On March 13, 1992, petitioner’s small mine permit

application was deemed technically complete by the DEQ.

The EQC hearing, by law under W.S. § 35-11-406(k)’, was

mandated to be held on May 5, 1992. That hearing has never

been held. This was the first of many alleged subsequent

unlawfully continued or dismissed hearings for the

determination of petitioner’s small mine permit by the EQC.

No statutory authority exists for the EQC to continue or

dismiss a permit hearing under W.S. § 35-11-406(k) without

a stipulation of the parties involved. It is mandated by the

statute to hold a hearing within 20 days of certification and if

not disqualified by a statutory precondition, to grant the

permit. —

The political pressure for the hearing delays derived

from the fact that in the Spring of 1992, an environmentally

based group was formed to protest this mining permit. It

became collectively known as the "Friends of Bessemer

Mountain." Upon the behest of this group, on March 27,

1992, the EQC made a political decision to engage in a rule

making process so as to classify this land as rare and

uncommon and create a denial criteria for the use of this

*The relevant portion of W.S. 35-11-406(k) reads as follows:

"(k) ... An informal conference or public hearing shall be held within

twenty (20) days after the final date for filing objections unless a

different period is stipulated to by the parties ..."

section of State land for petitioner’s mine permit application.

This was a potential disqualifying criteria for mining which

did not exist for this parcel when the State lease was granted

in 1989 nor when the small mine permit application was filed

in December of 1991, nor when the DEQ certified the

application to be technically complete on March 13, 1992. No

formal notice of this proposed rule making decision was given

to petitioner. They read about it in the newspaper. On April

23 and 24, the Bessemer Mountain area was so designated as

rare and uncommon by the EQC without any definitional rules

or criteria. The mine permit application then was remanded

back to the DEQ to apply the after-the-fact disqualifying

criteria of rare and uncommon to the petitioner’s pre-existing

permit application. This was likewise done without any

statutory authority, and over petitioner’s continuing objections

to the administrative delays.

The petitioner appealed the EQC’s decision to the

Wyoming Supreme Court and it was reversed. Matter of

Bessemer Mountain, 856 P.2d 450 (Wyo. 1993). The

Wyoming Supreme Court found that the EQC’s administrative

conduct was arbitrary, capricious and in violation of law.

After the court’s mandate, the DEQ on July 8, 1993 again

certified the petitioner’s small mine permit application as

complete within the statutory definitions of a rare and

uncommon criteria. Again, under W.S. § 35-11-406(k), the

permit hearing was again mandated to be on August 25, 1993.

This hearing was likewise never held. Instead the EQC again

elected over petitioner’s continuing objections to dismiss the

hearing to allow for new rule making, i.e., to create a new

disqualifying criteria outside the statutory definitions, in order

to apply them retroactively to this pre-existing mine permit

application. The EQC unlawfully dismissed the August 25,

1993 mandatory hearing and proceeded to adopt new rules

and definitional criteria pertaining to the rare and uncommon

designation in December of 1993.

On December 14, 1993, the EQC drafted new rules to

define a rare and uncommon criteria and decided to

retroactively apply its new rules to petitioner’s pending small

mine permit on hold since December 17, 1991, and advised

the parties of the council’s intent that the area encompassed in

petitioner’s application was going to be again designated rare

and uncommon at a hearing to be held on February 16, 1994.

This was to be done despite petitioner’s continuing objections.

On January 4, 1994, the EQC published new rules for

rare and uncommon designations under W.S. § 35-11-

112(a)(o). These new rules included "paleontological" sites

designed to specifically capture the area of petitioner’s

limestone mining lease. That criteria is not one defined in the

enabling legislation to form the basis of a rare and uncommon

area. W.S. § 35-11-112(a)(o). It was a new creation outside

the permitted legislative mandate and facially invalid.

On January 31, 1994, the EQC, without authority,

granted a further continuance of the petitioner’s permit

application hearing from February 16, 1994 until April of

1994, all over petitioner’s continuing objections.

After enactment of the alleged facially invalid rule and

when the January 31, 1994 hearings were again continued by

the EQC, petitioner, at that point, determined that all future

attempts to even get a hearing or obtain a mining permit were

futile. Accordingly, the petitioner determined its takings

claims had vested.‘

On February 10, 1994, notice of petitioner’s claims for

permanent and temporary takings were filed with the

*After withdrawal of petitioners application for a small mine

permit, the EQC did proceed on April of 1994 to classify Bessemer

Mountain rare and uncommon according to its new criteria. Petitioners

mining lease is still in effect until 1999 and has never been cancelled.

Wyoming State Auditor as required by W.S. § 9-1-409 and

the Department of Administration and Information. This

lawsuit was filed on February 23, 1994. Petitioner

subsequently withdrew its small mine permit application as

futile to continue the administrative process.

The vesting date for all takings claims was alleged in

the complaint as January 31, 1994.

REASONS FOR GRANTING WRIT OF CERTIORARI

THE WYOMING SUPREME COURT ELECTED NOT

TO FOLLOW LUCAS V. SOUTH CAROLINA COASTAL

COUNCIL AND REFUSED TO PROVIDE A FORUM

FOR PETITIONER’S FIFTH AMENDMENT TAKINGS

CLAIMS.

This is a Rule 12(b)(6) State Court dismissal of

petitioner’s constitutionally based takings claims. In so doing,

the Wyoming Supreme Court denied a forum for the full

factual development and adjudication of the merits of

petitioner’s Fifth Amendment claims as alleged in the

complaint.

This Court has made it abundantly clear since the

seminal case of Pennsylvania Coal Co. v. Mahon, 260 U.S.

393, 67 L.Ed 322, 43 S.Ct. 158 (1922) that takings claims

are uniquely fact specific and that a forum is to be provided

for full factual development of these constitutionally based

claims and adjudications are to be made on the merits below

for appellate review. This concept has become strengthened

over the years and is one of the "citadels" of takings law

jurisprudence. Penn Central Transportation Co. v. New York

City, 438 U.S. 104, (1978).

In Lucas v. South Carolina Coastal Council, supra, this

Court strongly restated the procedural prohibition against

threshold dismissals under Rule 12 of constitutionally based

takings claims in State Court at the pleading stage that allege,

as here in petitioner’s complaint, an "injury-in-fact.” The law

of the land is clear and unequivocal from Lucas:

...Lucas properly alleged injury-in-fact

in his complaint, see App to Pet for Cert 154

(complaint); id., at 156 (asking property" from

the date of the 1988 Act’s passage to "such time

as this matter is finally resolved"). No more can

reasonably be demanded. Cf. First English

Evangelical Lutheran Church of Glendale v

County of Los Angeles, 482 US 304, 312-313,

96 L. Ed 2d 250 107 S Ct. 2378 91987) Justice

Blackmun finds it "baffling, post, at --, n 5,

120 L. Ed. 2d, at 830, that we grant standing

here, whereas "just a few days ago, in Lujan v

Defenders of Wildlife, 504 US --, 119 L. Ed.

2d 351, 112 S Ct -- (1992)," we denied

standing. He sees in that strong evidence to

support his repeated imputations that the Court

"presses" to take this case, post, at --, 120 L.

Ed 2d, at 826, is "eager to decide" it, post, at

--, 120 L. Ed. 2d, at 831, and is unwilling to

"be denied," post at --, 120 L.Ed. 2d, at 829.

He has a point: The decisions are indeed very

close in time, yet one grants standing and the

other denies it. The distinction, however, rests

in law rather than chronology. Lujan, since

it involved the establishment of injury-in-fact

at the summary judgment stage, required

specific facts to be adduced by sworn testi-

mony; had the same challenge to a general-

ized allegation of injury-in-fact been made at

the pleading stage, it would have been

unsuccessful. Lucas. FN. 3 at p. 810 (Empha-

sis supplied.)

Petitioner’s verified complaint alleges injury-in-fact at

the pleading stage as a result of administrative futility and

enactment of a facially invalid administrative rule. The denial

of a forum to determine the factual basis and reasonableness

of petitioner’s contention of administrative futility and the

facial invalidity of the administrative rule is contrary to Lucas

and should be reviewed by this Court on certiorari.

II.

THE WYOMING SUPREME COURT ELECTED TO

IGNORE LUCAS AND YEE V. CITY OF ESCONDIDO,

WHICH VESTS A TAKINGS CLAIM UPON ENACT-

MENT OF A FACIALLY INVALID RULE WITHOUT

FURTHER ADMINISTRATIVE PROCEEDINGS.

The allegations of the verified complaint set forth the

enactment of a facially invalid rule by the Environmental

Quality Council of the State of Wyoming on January 4, 1994.

It is set forth in the pleading stage. (Appendix E) There is

little dispute in the record developed to date that the

administrative creation of a "paleontological" category by the

EQC to capture this limestone mining application was outside

the legislative mandate and definitions.

The Wyoming legislature enacted W.S. § 35-11-

112(a)(v) to empower the Environmental Quality Council

(EQC) to designate those areas of the State which are "very

rare or uncommon" and fall within the following specific

criteria: "historical, archeological, wildlife, surface geologi-

cal, botanicai or scenic." This statute is reprinted at

Appendix F for the Court’s convenience. Paleontology is not

within the statutory criteria. The rule was enacted to catch a

limestone mining permit as limestone is fossil based and falls

within the science of paleontology.

In the first appeal by the petitioner here, the Wyoming

Supreme Court set aside the conduct of the EQC to classify

the lands involved in this permit application as rare and

uncommon to have been arbitrarily applied without defini-

tions. Matter of Bessemer Mountain, 856 P.2d 450 (Wyo.

1993).

Upon remand, the EQC reacted to the appellate

reversal and created a new administrative rule to add

paleontology as a category to form the basis for denial of this

mining permit. This rule was clearly designed to capture the

petitioner’s limestone mining permit so as to create a category

upon which this mining permit application would be denied.

Except in this case, the Wyoming Supreme Court has

uniformly condemned and invalidated this type of administra-

tive "knee jerk." See Kerr-McGee Corporation v. Wyoming

Oil & Gas Conservation Commission, 903 P.2d 537 (Wyo.

1995). The EQC further demonstrated its administrative

hostility to this permit by applying these new rules retroac-

tively to capture the petitioner’s long standing mine permits

application.

Lucas and Yee v. City of Escondido, 503 U.S. 519, 112

S. Ct. 1522, 118 L.Ed 2d 153 (1992), are clear and unequi-

vocal that a facially invalid regulation allegation in the

complaint.vests the takings claim upon the date of enactment

and no more administrative proceedings need be exhausted.

The State trial court and the Wyoming Supreme Court refused

to discuss or apply Lucas and Yee and put the petitioner to the

full task of administrative exhaustion. The Trial Court’s

Decision Letter (Appendix B) simply ignored the facially

invalid rule aspect of Lucas and Yee and instead applied a

Wyoming statute, W.S. § 35-11-1001(b) to require full

administrative exhaustion before a forum would be available

to factually develop the allegations in the complaint of a

facially invalid rule.

The Wyoming Supreme Court ducked the mandate of

Lucas and Yee by observing in a footnote that the issue was

not raised by petitioner in the trial court and therefore not an

appellate issue for them to decide. Such is obviously not the

case as this was a Rule 12 disposition and the petitioner,

relying on Lucas and Yee, indeed pled the invalid rule and the

vesting of the takings claim without further administrative

exhaustion in its complaint. That is all the petitioner could do

at the Rule 12 level and that is all this Court has ever

required to vest the alleged takings claim. The Wyoming

Supreme Court’s further requirement that petitioner meet a

"burden of proof with significant evidence at the Rule 12

Stage" is in error. The required constitutional prerequisites

under Lucas and Yee, were alleged at the pleading stage as is

the injury-in-fact.

In fact, the Wyoming Supreme Court further chal-

lenged this Court’s rulings in Lucas, Yee and First Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987), by

Suggesting that petitioner would have to file for judicial

review of the contested facially invalid rule in separate

litigation before its takings claim was ripe. First Lutheran

Church strongly suggests that such procedural impediments

are not required ...". It would require a considerable

extension of these decisions to say that no compensable

regulatory taking may occur until a challenged ordinance has

ultimately been held invalid." 482 U.S. @ 320

The petitioner has been to the Wyoming Supreme

Court on direct appeal twice, Matter of Bessemer Mountain,

856 P.2d 450 (Wyo. 1993) and the instant case, 917 P.2d

1157 (Wyo. 1996) and on two collateral appeals Snodgrass vy.

Rissler & McMurry, 903 P.2d 1015 (Wyo. 1995) and Stalkup

v. State of Wyoming, Dept. of Environmental Quality, 838

P.2d 705 (Wyo. 1992).

Petitioner’s efforts to get a hearing and a mining

permit begin to approach the prohibitions of MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340, that, "a

property owner is, of course, not required to resort to

piecemeal litigation or otherwise unfair procedures in order to

obtain this determination." Jd. @ 350. Conceivably, before

these "endless trails of litigation" are exhausted, the 10 year

term of petitioner’s lease will have long expired and this

constitutionally based takings claim against the State of

Wyoming will be avoided.

The decision of the Wyoming Supreme Court to ignore

the mandate of Yee and Lucas, and deny a forum, merits

review by this Court as contrary to the law of the land.

Il.

THE WYOMING SUPREME COURT APPLIED A

STATE LEGISLATIVE ENACTMENT AS A SUBSTAN-

TIVE AND PROCEDURAL LIMITATION UPON PETI-

TIONER’S ACCESS TO A FORUM TO ADJUDICATE

ITS FIFTH AMENDMENT BASED TAKINGS CLAIM.

The State trial court and the Wyoming Supreme Court

ruled that W.S. § 35-11-1001(b) provided the only procedure

for a Fifth Amendment takings claim to be pursued in the

State Courts of Wyoming as relates to mining permits.

W.S. § 35-11-1001(b) provides:

"Any person having a legal interest in

the mineral rights or any person or corporation

having a producing mine or having made

substantial capital expenditures and commit-

ments to mine mineral rights with respect to

which the state has prohibited mining operations

because the mining operations or proposed

mining operations would irreparably harm,

destroy or materially impair an area that has

been designated to be a unique and irreplaceable

historical, archeological, scenic or natural

value, may petition the district court for the

district in which the mineral rights are located

to determine unconstitutional taking without

compensation. Upon a determination that a

taking has occurred the value of the investment

in the property or interests condemned shall be

ascertained and damages shall be assessed as in

other condemnation proceedings. "

Again, regardless of the mandate of this Court in Lucas

and Yee, the Wyoming Supreme Court limited a takings

recourse to the final event of administrative denial of a mining

permit due to a rare and uncommon classification. The

rationale being that this Wyoming Statute procedurally creates

and therefore substantively limits the parameters of a federal

constitutionally preserved takings claim. In other words, a

mining lease holder in Wyoming must exhaust all administr-

ative remedies, regardless of Lucas and Yee, and further be

denied a mining permit upon the narrow grounds of the

existence of a rare and uncommon area before a constitutio-

nally protected takings claim may have a forum in the State

Courts of Wyoming.

This type of State legislative action designed or

interpreted to render Federal constitutionally based claims

with or without severely restricted remedies, including denial

of a forum, is inimical to the Fifth Amendment and is invalid.

The takings clause of the Fifth Amendment is self executing.

Jacobs v. United States, 290 U.S. 13 (1933). First Lutheran

Church v. Los Angles County, supra. As argued in petitioner’s

rehearing brief (Appendix C), this decision completely

obviates the concept of Fifth Amendment takings claim in the

State of Wyoming by denial of a forum and a remedy at the

Rule 12 pleading stage in the State Courts.

This issue operating alone and in tandem with the other

issues raised in this petition merits review by this Court upon

certiorari.

CONCLUSION

This is a Fifth Amendment takings case dismissed by

the State Courts of Wyoming at the Rule 12 pleading stage

which claims allege administrative futility and a facially

invalid administrative rule drafted strictly in accord with

Lucas and Yee. The Wyoming State Court’s denial of a

forum based upon State statutory restrictions on the vesting of

Fifth Amendment takings claims and the denial of a forum to

develop and adjudicate the specific facts of these constitution-

ally based claims severally restricts and limits takings claims

in the State of Wyoming directly contrary to the law of the

land in Lucas and Yee. The injury-in-fact is alleged at the

pleading stage. Under Lucas and Yee, this court requires

nothing more at this point to vest a forum. That State Court

forum is essential so that the required "ad hoc, factual

inquiries," can be made upon a clean and factually determined

record. Penn Central, supra, 438 U.S. @ 124, First English

Evangelical Lutheran Church v. Los Angeles County, 482

U.S. @ 316.

This case should be reviewed and remanded on

certiorari to direct a forum upon an uncompromised record.

Otherwise, claims under the takings clause of the Fifth

Amendment will not be allowed in the State of Wyoming

except in very limited circumstances as determined solely by

State law.

DATED this _s°© day of September, 1996.

LAR Hick

R. Hursh

H ololbing WYOMING LAW

ASSOCIATES, P.C.

P.O. Box 1783

Riverton, WY 82501

(307) 856-4157

APPENDIX A

Opinion of Wyoming Supreme Court

No. 95-239

RISSLER & MCMURRY CO. a Wyoming corporation

Appellant - Plaintiff,

STATE OF WYOMING

Appellee - Defendant.

June 5, 1996

MACY, Justice.

Appellant Rissler & McMurry Co. appeals from the

order which dismissed its complaint against Appellee State of

Wyoming. Rissler was seeking a judgment for its alleged

takings claims and its damages.

We affirm.

ISSUE

Rissler presents a single issue for our review:

The trial court erred in dismissing the

plaintiff's separate temporary and permanent

takings claims on the premise that both claims

were premature under the provisions of W.S.

§ 35-11-1001(b).

FACTS

Rissler entered into a ten-year limestone mining lease

with the State on July 2, 1989. This lease covers a section of

State-owned land located on Bessemer Mountain in Natrona

County. Pursuant to the lease, Rissler agreed to comply with

all state statutory requirements and valid regulations, which

included obtaining a valid mining permit.

On December 17, 1991, Rissler submitted its

application for a small mine permit to the Department of

Environmental Quality as Wyo. STAT. § 35-11-405(a) (1994)

requires, seeking permission to mine a 40-acre parcel located

within the mining lease area. On March 13, 1992, the

Department of Environmental Quality certified that the permit

application was complete and suitable for publication. Rissler

published its notice of the pending permit in accordance with

the statute. The Department of Environmental Quality

received numerous written objections during the comment

period and, therefore, referred the permit application to the

Environmental Quality Council for a formal hearing and

determination under the Wyoming Administrative Procedure

Act. Wyo. STAT. §§ 35-11-406(m)(x) (Supp. 1995), -

112(a)(iv) (1994).

In April of 1992, a separate proceeding was held,

involving a designation petition which was filed for the

purpose of having Bessemer Mountain designated as being

"rare or uncommon." Following the hearing, the Environ-

mental Quality Council determined that Bessemer Mountain

met the criteria for being "rare or uncommon" and so

designated it. The Environmental Quality Council then

remanded Rissler’s permit application to the Department of

Environmental Quality, directing it to evaluate the application

in light of the "rare or uncommon" designation. Rissler filed

a petition for review in the district court, challenging the

Environmental Quality Council’s determination that Bessemer

Mountain met the criteria for being "rare or uncommon." The

district court certified the matter to the Court because of the

constitutional and procedural questions which were involved

and because it was in the best interest of justice and economy.

Rissler & McMurry v. Environmental Quality Council (In re

Bessemer Mt.), 856 P.2d 450, 451 (Wyo. 1993).

Rissler began mining operations in late 1992 on ten

acres of the leased land as was allowed under Wyo. STAT. §

35-11-401(e)(vi) (1994). On June 23, 1993, the Department

of Environmental Quality again certified that the permit

application was complete and suitable for publication. The

permit application, however, was not complete because

paleontology survey results were not included. The Environ-

mental Quality Council dismissed the case without prejudice

and remanded the application, directing the Department of

Environmental Quality to review the findings of a Rissler-

conducted paleontology survey on the area before certifying

the application as being complete. The Environmental Quality

Council also vacated a scheduled August 19-20, 1993, hearing

on the matter.

On July 10, 1993, the Department of Environmental

Quality again certified that the permit application was

complete and suitable for publication. Numerous objections

were again lodged against the permit application, and the

Department of Environmental Quality again forwarded the

application to the Environmental Quality Council for a formal

hearing. Pursuant to the contested case provisions of the

Wyoming Administrative Procedure Act, the Environmental

Quality Council ruled on several motions at that hearing and

then set a contested case hearing on the permit application for

February 22, 1994.

Contemporaneously with the July 1993 Department of

Environmental Quality and Environmental Quality Council

actions on the permit application, we reversed the Environ-

mental Quality Council’s "rare or uncommon" classification

of Bessemer Mountain and remanded the case, finding that the

Environmental Quality Council had not adopted appropriate

standards in accordance with the Wyoming Administrative

Procedure Act procedures on rule making. See Rissler &

McMurry, 856 P.2d 450. As a result of this ruling, the

Environmental Quality Council promulgated new rules in

December of 1993 to define the "rare or uncommon" criteria.

On January 31, 1994, the Environmental Quality

Council continued the February 22, 1994, hearing on Rissler’s

application for a small mine permit until April of 1994. On

February 10, 1994, Rissler filed its verified notice of claim

with the State, and the State denied it on February 16, 1994.

A hearing on a new petition to designate Bessemer Mountain

as being "rare or uncommon" was held on February 16, 1994.

On February 17, 1994, the Environmental Quality Council

decided to delay making any decision until after the

Legislature had adjourned it session. On February 23, 1994,

approximately a month before the hearing was to be held on

its application, Rissler withdrew its application for a small

mine permit. On the same day, Rissler filed its verified

complaint in the district court, alleging, among other things,

that the State temporarily and permanently deprived Rissler of

the benefits of owning its lease without providing just

compensation and deprived it of its procedural and substantive

due process rights.

The State moved to dismiss under W.R.C.P. 12(b)(6).

After hearing arguments on the matter, the district court

granted the State’s motion on the grounds that Rissler had not

exhausted its administrative remedies. It is from that order

that Rissler makes this appeal.

STANDARD OF REVIEW

We have often stated the standard we apply when we

are reviewing a W.R.C.P. 12(b)(6) dismissal:

When reviewing a W.R.C.P. 12(b)(6)

dismissal, the Court accepts all facts stated in

the complaint as being true and views them in

the light most favorable to the plaintiff. We will

sustain a W.R.C.P. 12(b)(6) dismissal only

when its is certain from the face of the com-

plaint that the plaintiff cannot assert any facts

which would entitle him to relief.

Herrig v. Herrig, 844 P.2d 487, 490 (Wyo. 1992) (citation

omitted), quoted in Davis v. State, 910 P.2d 555, 560 (Wyo.

1996). Although dismissal is a drastic remedy which should

be granted sparingly, a motion to dismiss ‘is the proper

method for testing the legal sufficiency of the allegations and

will be sustained when the complaint shows on its face that

the plaintiff is not entitled to relief.’" Feltner v. Casey Family

Program, 902 P.2d 206, 208 (Wyo. 1995) (quoting Mummery

v. Polk, 770 P.2d 241, 243 (Wyo. 1989)).

DISCUSSION

Rissler contends that the State’s conduct resulted in a

temporary and permanent taking of its limestone mining lease

and that it did not exhaust its administrative remedies because

it would have been futile to continue trying to get a hearing

on its permit application. The district court’s ruling focused

upon the exhaustion-of-remedies issue. We, therefore, will

limit the scope of our decision to that issue.

The decision to decline jurisdiction because a party has

failed to exhaust its administrative remedies is vested within

the sound discretion of the district court. Glover v. State, 860

P.2d 1169, 1171 (Wyo. 1993).

"The exhaustion doctrine applies where an

agency alone has been granted or found to

possess exclusive jurisdiction over the case. The

purpose of the doctrine then is to avoid pre-

mature interruption of the administrative

process where the agency has been created to

apply a statute in the first instance."

860 P.2d at 1171-72 (quoting People v. Fremont Energy

Corporation, 651 P.2d 802, 811 (Wyo. 1982)). The reasons

for applying the exhaustion doctrine have been well noted:

"A primary purpose is, of course, the avoidance

of premature interruption of the administrative

process. The agency, like a trial court, is

created for the purpose of applying a statute in

the first instance. Accordingly, it is normally |

desirable to let the agency develop the neces- |

sary factual background upon which decisions |

should be based. And since agency decisions |

are frequently of a discretionary nature or |

frequently require expertise, the agency should |

be given the first chance to exercise that

discretion or to apply that expertise. And of

course it is generally more efficient for the

administrative process to go forward without

interruption than it is to permit the parties to

seek aid from the courts at various intermediate

stages. The very same reasons lie behind

judicial rules sharply limiting interlocutory

appeals."

860 P.2d at 1172 (quoting McKart v. United States, 395 U.S.

185, 193-94 (1969)).

When an agency denies an application or withholds or

delays action on a permit application, statutory means exist

under which the affected party may petition a court for review

of the agency’s actions. WYO. STAT. § 16-3-114 (1990)

provides in pertinent part:

(a) ...[A]ny person aggrieved or

adversely affected in fact by ... agency action

or inaction, or any person affected in fact by a

rule adopted by an agency, is entitled to judicial

review in the district court for the county in

which the administrative action or inaction was

taken, or in which any real property affected by

the administrative action or inaction is located,

or if no real property is involved, in the district

court for the county in which the party ag-

grieved or adversely affected by the adminis-

trative action or inaction resides or has its

principal place of business. The procedure to be

followed in the proceeding before the district

court shall be in accordance with rales hereto-

fore or hereinafter adopted by the Wyoming

Supreme Court.

a decision and when presented, the reviewing

court shall decide all relevant questions of law,

interpret constitutional and statutory provisions,

and determine the meaning or applicability of

the terms of an agency action. In making the

following determinations, the court shall review

the whole record or those parts of it cited by a

party and due account shall be taken of the rule

of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully

withheld or unreasonably delayed; ...

In addition, the Legislature has established mechanism for

determining whether an agency’s denial of all or a part of a

mining permit, on the basis of a "rare or uncommon"

designation, rises to the level of being a compensable taking.

Wyo. STAT. § 35-11-1001(b) (1994) provides a remedy for

those parties who believe that their property has been taken as

a result of a permit application being denied. It states:

(b) Any person having a legal interest in

the mineral rights or any person or corporation

having a producing mine or having made

substantial capital expenditures and commit-

ments to mine mineral rights with respect to

which the state has prohibited mining operations

because the mining operations or proposed

mining operations would irreparably harm,

destroy or materially impair an area that has

been designated to be of a unique and irreplace-

able historical, archeological, scenic or natural

value, may petition the district court for the

district in which the mineral rights are located

to determine whether the prohibition so restricts

the use of the property as to constitute an

unconstitutional taking without compensation.

Upon a determination that a taking has occurred

the value of the investment in the property or

interests condemned shall be ascertained and

damages shall be assessed as in other condem-

nation proceedings.

Section 35-11-1001(b).

These statutes require a final agency decision to be

rendered before an appeal may be initiated or an action for an

unconstitutional taking may be pursued. Rissler did not

proceed pursuant to the above provisions. Rissler’s application

for a small mine permit was never denied. Instead, Rissler

withdrew its application approximately a month before the

hearing was to occur and filed its complaint on the same day.

By going directly to court, Rissler circumvented the statutes

designed to provide relief. See Cheyenne Airport Board v.

Rogers, 707 P.2d 7171 (Wyo. 1985), dismissed, 476 U.S.

1110 (1986).

The trial court cited Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City, 473

U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985), in

concluding that Rissler’s takings claims were premature. In

Williamson County Regional Planning Commission, the United

States Supreme Court held:

As the Court has made clear in several

recent decisions, a claim that the application of

government regulations effects a taking of a

property interest is not ripe until the govern-

ment entity charged with implementing the

regulations has reached a final decision regard-

ing the application of the regulations to the

property at issue.

473 U.S. at 186. The Supreme Court went on to explain:

A second reason the taking claim is not

yet ripe is that respondent did not seek compen-

sation through the procedures the State has

provided for doing so. The Fifth Amendment

does not proscribe the taking of property; it

proscribes taking without just compensation.

Nor does the Fifth Amendment require that just

compensation be paid in advance of, or contem-

poraneously with, the taking; all that is required

is that a "‘reasonable, certain and adequate

provision for obtaining compensation’" exist at

the time of taking. Regional Rail Reorganization

Act Cases, 419 U.S. 102, 124-125, 95 S.Ct.

335, 349, 42 L.Ed.2d 320 974) (quoting

Cherokee Nation v. Southern Kansas R. Co.,

135 U.S. 641, 659, 10 S.Ct. 965, 971, 34

L.Ed. 295 (1980)). If the government has

provided an adequate process for obtaining

compensation, and if resort to that process for

obtaining compensation, and if resort to that

process "yield[s] just compensation," then the

property owner "has no claim against the

Government" for a taking. [Ruckelshaus v.]

Monsanto [Company], 467 U.S. [986,] 1013,

1018, n. 21, 104 S.Ct. [2862,] 2878, 2881, n.

21 [, 81 L.Ed.2d 815 (1984)].

473 U.S. at 194-95 (footnote and some citations omitted).

The Legislature has charged the Environmental Quality

Council with the responsibility for approving or denying

applications for mining permits. Wyo. STAT. § 35-11-

112(c)(ii) (1994). Until its determination has been rendered,

the courts do not have jurisdiction under § 35-11-1001(b) to

make a decision on a compensatory taking action or entertain

an appeal from the denial of an application for a permit under

§ 16-3-114 and W.R.A.P. 12.

Rissler claims that pursuing the permit process would

have been futile because the "rare or uncommon" designation’

as well as the continuances of the contested case hearing made

it pointless for Rissler to continue. The United States Supreme

Court has held: "Our cases uniformly reflect an insistence on

knowing the nature and extent of permitted development

before adjudicating the constitutionality of the regulations that

purport to limit it." MacDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 351, 106 S. Ct. 2561, 91 L. Ed. 2d

285 (1986).

We agree with the Washington Supreme Court’s

holding:

Once exhaustion is raised as a defense,

the landowner seeking to establish "futility" as

an exception to the exhaustion requirement must

persuade the court that futility excuses exhaus-

tion. This is a substantial burden because of the

strong public policies favoring the exhaustion

doctrine.

'Rissler argues for the first time on appeal that creating a

"paleontological" category within the definitional rule of "rare or

uncommon" made the rule and regulation facially invalid. We will not

consider issues which are raised for the first time on appeal. Hiltz v.

Robert W. Horn, P.C., 910 P.2d 566, 572 (Wyo. 1996).

26 aa

Presbytery of Seattle v. King County, 787 P.2d 907, 916-17

(Wash.) (en banc), cert. denied, 498 U.S. 911 (1990)

(footnote omitted). The Washington Supreme Court concluded

that the landowner’s claim was not ripe for adjudication

because the landowner had not sought development permits

and that, therefore, it was not possible to know what

deprivation of beneficial use might result from a wetlands

ordinance. 787 P.2d at 917.

The only evidence which suggests that it would have

been pointless for Rissler to continue with the permit process

is Rissler’s opinion that it would have been futile. The fact

that an area receives a "rare or uncommon" designation does

not necessarily mean that a permit application will be

automatically denied. WYO. STAT. § 35-11-406(m)(iv) (Supp.

1995) requires that a permit be denied only if the "proposed

mining operation would irreparably harm, destroy, or

materially impair any area that has been designated ... a rare

Or uncommon area." Since Rissler withdrew its permit

application, the Environmental Quality Council was never

given the opportunity to decide whether to approve the

application.

Rissler cites various cases in an attempt to support its

position that it was excused from exhausting its administrative

remedies under the futility exception. Rissler relies on First

English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, California, 482 U.S. 304, 107 S. Ct. 2378,

96 L. Ed. 2d 250 (1987). That case, however, does not help

Rissler as it stands for the proposition that, when a landowner

has been denied all use of his property, an ordinance cannot

escape review on takings grounds simply -because the

ordinance is later repealed or amended. 482 U.S. at 319-21.

Rissler also relies on Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798

(1992), in asserting this position. Lucas is likewise not helpful

to Rissler. In Lucas, the United States Supreme Court refused

to apply the exhaustion-of-remedies rule only because the

South Carolina Supreme Court had disposed of the case on its

merits rather than on ripeness grounds. The agency in

question admitted that a permit to build would noi and could

not have been issued. 505 U.S. at 1012 n.3. Otherwise, the

exhaustion-of-remedies rule would have been applied. 505

U.S. at 1011-12.

In this case, by contrast, the agency never stated that

a permit would not or could not be issued. Furthermore,

Rissler was not unconditionally and permanently deprived of

all its value in the mining lease. The withdrawal of the permit

application prior to the agency’s final decision made it

impossible fcr such a final, permanent deprivation to occur.

We disagree with Rissler’s argument that the

Environmental Quality Council does not have statutory

authority to continue a hearing. We have recognized that

continuances may be requested in the administrative hearing

context. See State ex rel. Wyoming Workers’ Compensation

Division v. Rivera, 796 P.2d 447, 452 (Wyo. 1990); see also

Grams v. Environmental Quality Council, 730 P.2d 784, 788

(Wyo. 1986) (reviewing a refusal to grant a continuance in a

surface-coal-mine-permit case under an abuse-of-discretion

standard rather than under a_lack-of-statutory-authority

standard).

While we understand Rissler’s frustration with the

bureaucratic hoops which it was required to jump through, we

cannot sanction its total abandonment of the administrative

process. The Wyoming Administrative Procedure Act

provides appropriate remedies for those parties who have been

aggrieved by an agency’s actions, and a party must exhaust

those remedies before it pursues alternative forms of relief.

CONCLUSION

Rissler failed to sustain its burden of establishing that

it was excused by reason of futility from exhausting its

administrative remedies, and, thus, the district court correctly

dismissed Rissler’s temporary and permanent takings claims

as being premature.

Affirmed.

APPENDIX B

DECISION LETTER OF

WYOMING STATE DISTRICT COURT

April 14, 1995

THE STATE OF WYOMING

FIRST JUDICIAL DISTRICT

EDWARD L. GRANT LARAMIE COUNTY COURTHOUSE

JUDGE CHEYENNE, WYOMING

82001

April 14, 1995

John Hursh

Donald Rissler

Central Wyoming Law Associates

P.O. Box 1783

Riverton, WY 82501-1783

Larry Donovan

Sr. Ass’t. Attorney General

123 Capitol Building

Cheyenne, WY 82002

Re: Rissler & McMurry v. State

Docket 136-071

Dear Counsel:

The Court will grant defendant’s 12(b)(6) motion for

the reasons given here.

On July 2, 1989, Rissler & McMurry Company

(hereafter "Rissler") entered into a ten-year "Limestone

Mining Lease" with the State of Wyoming, The lease

covered a section of state-owned land on Bessemer Mountain

in Natrona County. Under the terms of the lease, Rissler

agreed to comply with all state statutory requirements and

valid regulations.

Rissler began mining operations on ten acres of the

leased land as allowed under W.S. § 35-11-401(e)(vi)(Supp.

1994) in late 1992. On December 17, 1991, Rissler

submitted a small mine claim permit application with the

Department of Environmental Quality (DEQ) pursuant to

W.S. § 35-11-405(a)(Supp. 1994). The DEQ certified the

permit complete and suitable for publication on March 13,

1992. Rissler published notice of the pending permit

application as required by statue. The DEQ received

numerous written objections to the permit application during

the thirty-two day comment period.

The written objections prompted the DEQ director to

refer the permit application to the Environmental Quality

Council (EQC) for a formal hearing. In a separate proceed-

ing, the EQC designated Bessemer Mountain as "rare or

uncommon" after a two-day hearing in April, 1992. The

EQC remanded the permit application to the DEQ with

directions to evaluate the permit application in light of the

"rare or uncommon" designation were not included in the

application at the time of the EQC hearing.

On June 23, 1993, the DEQ certified the remanded

permit application as complete and suitable for publication.

The EQC subsequently dismissed the DEQ certification

without prejudice. It again remanded the permit application

with directions for the DEQ to review the findings of a

Rissler-conducted survey on paleontology of the area before

certifying the application as complete. The EQC also vacated

a scheduled August 19-20, 1993, hearing on the matter in

light of its remand order.

On July 10, 1993, the DEQ once again certified the

permit application as complete and suitable for publication,

The published notice elicited numerous objections to the

permit application. The DEQ director again forwarded the

application to the EQC for a formal hearing. The EQC

determined it would treat the permit application hearing as a

contested case pursuant to the Wyoming Administrative

Procedure Act. It scheduled a hearing on the matter on

August 25, 1993.

Contemporaneous with the July 1993, DEQ and EQC

actions on the permit application, the Wyoming Supreme

Court reversed the EQC’s designation of Bessemer Mountain

as "rare of uncommon" on July 15, 1993. The Court found

that the EQC failed to adopt standards for the "rare or

uncommon" classification in accordance with the Wyoming

Administrative Procedure Act rulemaking requirements. The

EQC adopted properly promulgated rules for the "rare or

uncommon" designation in December, 1993.

The EQC ruled on several motions at the August 25

hearing. It then set a contested case hearing on the permit

application for February 22, 1994. The State Auditor

formally denied the claims six days later. On February 23,

1994, the DEQ received a notice of immediate withdrawal of

the small mine permit application. The next day, Rissler filed

this lawsuit against the State of Wyoming in the First District

Court.

The defendant claims that the complaint should be

dismissed for the reason, among others, that plaintiff has

failed to exhaust the administrative remedies to it, having

withdrawn its small mine permit application after the second

designation of the proposed site as rare and uncommon,

pursuant to § 35-11-1001(b). Plaintiff asserts that further

pursuit of the permit would be futile and that it did all that it

can reasonably be expected to do. This may or may not be

SO.

— oo

But plaintiff acting as it did, faces a more fundamental

problem. The complaint, in view of applicable law,

establishes that no Fifth Amendment "taking" has occurred

because the state statue provides a procedure for the

determination of whether a permit denied on the basis of rare

and uncommon designation constitutes a taking and provides

a basis and procedure from just compensation. Wyoming

Statute § 35-11-101(b), Wyoming Eminent Domain Act, § 1-

26-501 et seq, and W.R.C.P. 71.1. Wyoming Statute § 35-

11-101(b)(1994) reads as follows:

(b) Any person having a legal interest in the

mineral rights or any person or corporation having a

producing mine or having made substantial capital

expenditures and commitments to mine mineral rights

with respect to which the state has prohibited mining

operations because the mining operations or proposed

mining operations would irreparably harm, destroy or

materially impair an area that has been designated to

be of a unique and irreplaceable historical, archeologi-

cal, scenic or natural value, may petition the district

court for the district in which the mineral rights are

located to determine whether the prohibition so

restricts the use of the property as to constitute an

unconstitutional taking without compensation. Upon a

determination that a taking has occurred the value of

the investments in the property or interests condemned

shall be ascertained and damagers shall be assessed as

in other condemnation proceedings.

The United States Supreme Court has held that

assuming that a regulatory restriction on the use of land was

a taking as proscribed by the Fifth Amendment, the owner’s

claim was premature because he had not obtained a final

administrative decision concerning the effect of the zoning

regulation on the use of his property or utilized statutory

provisions to obtain compensation. The prematurity was held

to be dispositive of a due process denial claim as well as of

the takings claim. The developers claim was not "ripe".

Williamson Planning Commission v. Hamilton Bank, 473 U.S.

172, 187, 87 L. Ed 2d 126, 105 S. Ct. 3108, (1985) quoting

Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,

452 U.S. 264, 297, (1981).

The Court held that because the developer had not

applied for variances from the disputed zoning regulation,

there could be no determination of the extent of the economic

impact of the regulation. Rissler responds to that proposition

here by asserting the doctrine of futility. But the Court in

Hamilton did not limit its holding to the requirement of

exhaustion of administrative remedies. It said at page 143 of

87 L. Ed. 2d:

A second reason the taking claim is not yet ripe

is that respondent did not seek compensation through

the procedures the State has provided for doing so.

The Fifth Amendment does not proscribe the taking of

property; it proscribes taking without compensation.

Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., 452 U.S., at 297, n 40, 69 L. Ed. 2d 1,

101 S. Ct, 2352. Nor does the Fifth Amendment

require that just compensation be paid in advance of,

or contemporaneously with, the taking; all that is a

"reasonable, certain and adequate provision for

obtaining compensation" exist at the time of the taking.

[Citations omitted.] If the government has provided an

adequate process for obtaining compensation, and if

resort to that process "yield[s] just compensation," then

the property owner "has no claim against the Govern-

ment: for a taking, Monsanto, 467 U.S., at 1013,

1018, n 21, 81 L. Ed. 2d 815, 104 S. Ct. 2862.

* * *

At p. 147:

ON ea ar a Ma

In sum, respondent’s claim is premature,

whether it is analyzed as a deprivation of property

without due process under the Fourteenth Amendment,

Or as a taking under the just Compensation Clause of

the Fifth Amendment.

In Lucas v. So. Carolina Coastal Council, 120

L. Ed 798 (1992), relied on here by both parties, the

defendant Council argued this principal, seeking dismissal of

Lucas’s takings claim against it. The Court refused to apply

the rule, but only because the South Carolina Supreme Court

had rejected that disposition. Otherwise, this rule would have

been applied.

We think these considerations would

preclude review had the South Carolina

Supreme Court rested its judgment on ripeness

grounds, as it was (essentially) invited to do by

the Council, see brief for Respondent 9, n 3.

The South Carolina Supreme Court shrugged

off the possibility of further administrative and

trial proceedings, however, preferring to

dispose of Lucas’s takings claim on the merits.

Lucas v. So. Carolina Coastal Council, 120 L. Ed. 2d 798

(1992), at 810.

The state, by the statues and rules cited above has

provided a "reasonable, certain and adequate provision for

obtaining compensation," the presence of which makes this

action premature and perhaps unnecessary by the standard

applied in Hamilton and acknowledged to be appropriate in

Lucas. Mr. Donovan will please submit a form of order.

Thank you.

Very truly yours,

s/Edward L. Grant

District judge

ELG/laa

APPENDIX C

PETITION FOR REHEARING WITH BRIEF

WYOMING SUPREME COURT

NO. 95-239

N THE SUPREME COURT

STATE OF WYOMING

RISSLER & McMURRY Co.,a__+?)

Wyoming corporation, )

)

Appellant )

(Plaintiff), )

)

v. ) No. 95-239

)

THE STATE OF WYOMING, )

)

Appellee )

(Defendant). )

PETITION FOR REHEARING

COMES NOW the Appellants, Rissler & McMurry

Co., by counsel, and pursuant to the provisions of Rule 9.07,

W.R.C.P. files this Petition for Rehearing with accompanying

brief requesting reconsideration of the opinion rendered and

filed herein on June 5, 1996, upon the following points of

error:

ISSUE I

The Court deviated from the standards

of review of a W.R.C.P. Rule 12(b)(6)

dismissal in this case as relates to the suffi-

ciency of the allegations of administrative

futility set forth in the Complaint.

ISSUE II

The Court cited matters outside the

Record on Appeal which appear as factual

basis for the opinion instead of the allegations

of the Complaint.

ISSUE Ill

The Court erred in denying a forum for

Appellant’s constitutionally based takings

claims.

ISSUE IV

The Court erred in failure to consider

the facially invalid regulation issue which

under Lucas and Yee v. City of Escondido, --

U.S.--, 112 S.Ct. 1522, 118 L.Ed.2d 153

(1992) is determinative of the administrative

exhaustion issue.

ISSUE V

The Court’s reliance on W.S. § 35-11-

1001(b) limiting the vesting of Appellant’s

Federal Constitutional takings claim was

invalid and in error.

ISSUE VI

The Court’s reliance upon Williamson,

supra, is misplaced as that case involved

federal court subject matter jurisdiction access

prior to state court exhaustion. With reference

to takings claims originally filed in state court,

First English and Lucas control.

RESPECTFULLY submitted this 19 day of June,

1996.

s/JOHN R. HURSH

Attorney for Plaimtiff

IN THE SUPREME COURT

STATE OF WYOMING

RISSLER & McMURRY Co., a

Wyoming corporation,

Appellant

(Plaintiff),

v. No. 95-239

THE STATE OF WYOMING,

Appellee

)

(Defendant). )

APPELLANT’S BRIEF IN SUPPORT OF

PETITION FOR REHEARING

ISSUES PRESENTED FOR REHEARING

The Appellant respectfully presents the following

issues that are requested to be reheard in this matter:

ISSUE I

The Court deviated from the stan-

dards of review of a W.R.C.P. Rule 12(b)(6)

dismissal in this case as relates to the suffi-

ciency of the allegations of administrative

futility set forth in the Complaint.

ISSUE II

The Court cited matters outside the

Record on Appeal which appear as factual

basis for the opinion instead of the allegations

of the Complaint.

ISSUE Ill

The Court erred in denying a forum

for Appellant’s constitutionally based takings

claims.

ISSUE IV

The Court erred in failure to consider

the facially invalid regulation issue which

under Lucas and Yee v. City of Escondido, --

U.S.--, 112 §.Ct. 1522, 118 L.Ed.2d 153

(1992) is determinative of the administrative

exhaustion issue.

ISSUE V

The Court’s reliance on W.S. § 35-

11-1001(b) limiting the vesting of Appel-

lant’s Federal Constitutional takings claim

was invalid and in error.

ISSUE VI

The Court’s reliance upon William-

son, supra, is misplaced as that case involved

federal court subject matter jurisdiction

access prior to state court exhaustion. With

reference to takings claims originally filed in

state court, First English and Lucas control.

ARGUMENT

The Court deviated from the standards of review of

a W.R.C.P. Rule 12(b)(6) dismissal in this case as relates

to the sufficiency of the allegations of administrative

futility set forth in the Complaint.

At the outset of the opinion, the appropriate standard

of review was recited by the Court for this Rule 12(b)(6)

dismissal:

"When reviewing a W.R.C.P. 12(b)(6)

dismissal, this Court accepts all facts stated in

the complaint as being true and views them in

the light most favorable to the plaintiff. We

will sustaina W.R.C.P. 12(b)(6) dismissal only

when it is certain from the face of the com-

plaint that the plaintiff cannot assert any facts

which would entitle him to relief." (Slip Op.

p.3)

"Accepting all facts stated in the Complaint," the

following facts should have appeared in the opinion as

follows:

"[In July of 1989, the State of Wyo-

ming granted Rissler & McMurry Co. a

limestone mining lease on a school section of

State owned land. This lease was granted only

for limestone mining and the term was for a

period of ten (10) years. Under the lease, the

Appellant was required to actively pursue

mining to provide royalty income. In order to

do so, a small mine permit was required before

commencing operations over ten (10) acres.

When the lease was issued there were no

restrictive classifications on this land. In

December of 1991, the Appellant applied for a

small mine permit as required under its lease

with the State. The Department of Environ-

mental Quality processed the mining permit

application and deemed it technically complete

on March 13, 1992. Under the law utilized by

the DEQ, W.S. § 35-11-406(k), a hearing on

that permit by the Environmental -Quality

Council was to commence within twenty (20)

days of publication. That date to commence

the hearing was May 5, 1992. No hearing was

ever held prior to the filing of the Complaint in

February of 1994.

In the interim, the EQC held a hearing

in March of 1992, without notice to the

Appellant, and classified the school section of

land as “rare and uncommon." This action

required the Appellant to come to this Court

for relief. This action by the EQC was set

aside by this Court as arbitrary and capricious.

In July of 1993, the DEQ, based upon this

Court’s mandate, again certified the permit to

be technically complete. The required hearing

was then ordered for August 25, 1993. This

hearing was continued by the EQC over

Appellant’s objections to allow for administra-

tive rule making. On December 14, 1993, the

EQC advised Appellant that another hearing on

"redoing" the rare and uncommon classification

was set for February 16, 1994 and thereafter

its permit application would be considered. On

January 4, 1994 the EQC enacted new rules

and created a new category designated as

"paleontological" which was outside the

legislative definition mandate and which was

designed to create an "after the fact" adminis-

trative rule to form a denial criteria for this

limestone mine permit. On January 31, 1994,

the EQC, to accommodate the protestants, and

over Appellant’s continuing objections to any

more delays in having a hearing on its permit

application and again reset the hearing for

April of 1994.

The EQC did, in fact, classify this land

as rare and uncommon after this lawsuit was

filed.

In this administrative morass, to the

date of filing of the Complaint, the Appellant

has had to undertake one direct appeal and now

collateral appeals: re road condemnation, etc.

ii |

to the Supreme Court; had to endure at least

five continuances of its request to simply have

a hearing spanning 630 days from a 20 day

statutory mandate and face the prospect of over

one-half of the life of its lease expired without

a hearing and certain denial of the permit under

the facially invalid regulation enacted solely to

defeat this permit.]"

Those are the "facts" taken as true and established

directly from the Complaint. That should have comprised the

factual narrative in the recitals as relates to the futility

doctrine in the opinion. Nothing else can appear in that

narrative in a Rule 12 review but the allegations of the

Complaint. The plaintiff cannot "come forth" with more or

sufficient evidence at this point in the proceedings. What

appeared as facts in the opinion did not resemble the

Complaint.

However, here it is obvious the Court elected to not

accept the facts as alleged in the Complaint as being true, and

further, specifically rejected those parts of the Complaint

alleging the factual basis of administrative futility as

"Rissler’s opinion." In so doing, the Court went beyond its

own Rule 12 framework of review and made a judgment upon

the weight and sufficiency of the evidence as if this was a

Rule 56 review. The Court’s comment is indicative of that

approach here:

"The only evidence which suggests that it would have

been pointless for Rissler to continue with the permit process

is Rissler’s opinion that it would have been futile." (Slip Op.

Pp. 7)

Also in the opinion’s conclusion, Appellant is chided

for failure to sustain its burden to establish futility. That

is an evidentiary standard which is not appropriate in a Rule

12 review as against a trial burden. The Court obviously

went beyond the Complaint here and weighed the evidence of

futility even though at the Rule 12 review level, no other

"evidence" can be considered or offered by any party except

the allegations of the Complaint. The Court’s reliance on

Presbytery of Seattle v. King County, 787 P.2d 907 (Wash.

1990) creating a high evidentiary level burden was not a Rule

12(b)(6) dismissal opinion but a summary judgment review

after factual development.’

As pointed out in Appellant’s brief as originally filed

herein, the issue of administrative futility and the factual basis

was pled in the Complaint and whether or not the "evidence"

of same is sufficient to meet the burdens suggested by

Presbytery must be heard and adjudicated below. Then the

sufficiency of the evidence determinations can properly be

made below for Appellate review. These findings at the

pleading stage are premature since the weight of the evidence

has not yet had its forum; has not been decided and was not

before the Court.

The opinion of this Court in denying a forum at the

Rule 12(b)(6) threshold, disregarding the factual allegations of

administrative futility as set forth in the Complaint which are

accepted here, and instead weighing the sufficiency and

burden of the evidence, violates Appellant’s rights under the

Standards of Review when operating under a Rule 12(b)(6)

constraint and is error which this Court should reconsider.

Il.

The Court cited matters outside the Record on

Appeal which appear as factual basis for the opinion

instead of the allegations of the Complaint.

The Court’s reliance on Presbytery may be suspect since

Lucas, as it has now been limited. See, e.q. Powers v. Skagit County,

835 P.2d 230 (1992) where Presbytery’s limitations after Lucas is

discussed by the Washington State Appellate Court.

Directly related to the first issue of concern. is the

Appellant’s observation that matters outside the Record on

Appeal were considered in these deliberations.

To frame this concern and analysis, it is axiomatic that

the only "facts" that can be considered for a Rule 12(b)(6)

review are those that appear in the Complaint. Yet, in the

factual recitations written to support this Opinion appear the

following "facts" that do not appear anywhere in the

Complaint or its exhibits:

At page | - "In April of 1992, a separate proceeding

was held, involving a designation petition which was filed

for the purpose of having Bessemer Mountain designated

as being rare or uncommon." (Slip Op. p. 1)

At page 2 - "The permit application, however, was

not complete because paleontology survey results were not

included. The Environmental Quality Council dismissed

the case without prejudice and remanded the application,

directing the Department of Environmental Quality to

review the findings of a Rissler conducted paleontology

survey on the area before certifying the application as

being complete. The Environmental Quality Council also

vacated a scheduled August 19-20, 1993, hearing on the

matter. (Slip. Op. 2)

At page 2 - "On February 23, 1994, approximately a

month before the hearing was to be held on its application,

Rissler withdrew its application for a small mine permit."

(Slip Op. p.2) (Emphasis added to show matters outside the

record. )°

An examination of the allegations of the Complaint

finds none of these factual recitations. Since the Complaint,

under Rule 12(b)(6) review practice, is the only source of the

In fact, had discovery been allowed to be done below, many

of these “recitations of fact" would have been contested below by

Appellant.

"facts" to be recited in an appellate opinion, this aspect of the

record upon which this Court based it’s opinions is outside the

record.

One doesn’t have to look far for the source of those

"outside the record" facts. Without opening the door to any

other of the State’s summary judgment materials prohibited

from consideration by the Chief Justice’s Order, examination

of the excluded affidavit of Roger Shaffer and it’s attach-

ments (R. 86-90) are self-evident as the source of these

"facts" that now appear in the opinion. The error is patent.

Gifford v. Casper Neon Sign Co., Inc., 618 P.2d 547 (Wyo.

1980).

The Record on Appeal in this case, over the

Appellant’s strenuous objections, contains the State’s

affidavits and materials filed below in support of its motions

for summary judgment. The parties stipulated and the Trial

Court ordered that the State officials’ affidavits, etc., were not

to be considered, as the Appellant had not been given an

opportunity to file its responsive affidavits and documents and

more importantly the threshold issues only under a Rule 12

standard were to be decided first.

Accordingly, when the Record on Appeal was ready to

be docketed, the Appellant’s Designation struck the State’s

Rule 56 materials from this record in order to keep the record

pure. These documents to be stricken were identified as

consisting pages 41-179. The State, for obvious tactical

reasons, insisted the "stricken" documents come up to this

Court in the record. The Appellant then moved this Court to

remove those documents from the record for fear that

"someone may read them if they are there." This Motion to

Strike was denied by the Court with the caveat that said

materials would not be considered in this Appeal. It is

rather clear that this order designed to protect the record from

outside influences and references has been compromised. As

such, Appellant’s due process rights to a proper and fair Rule

12 review based upon the integrity of the record have been

compromised and is error.

Il.

The Court erred in denying a forum for Appellant’s

constitutionally based takings claims.

Constitutionally based takings claims have been

granted a unique procedural protection from threshold

dismissals under Rule 12(b)(6) by the United States Supreme

Court.

In 1922, Mr. Chief Justice Holmes, in the seminal

case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67

L.Ed. 322, 43 S.Ct. 158 (1922), which is the foundation of

takings law jurisprudence very clearly set forth the procedural

requirements of full fact specific development of those

constitutionally based claims so that the record is complete

with findings in order to be reviewed. This concept was

strengthened in Penn Central Transportation Co. v. New York

City, 438 U.S. 104, (1978) Accordingly, there are recorded

very few, if any, Rule 12 threshold dismissals of these

constitutionally based claims found in the hundreds of

reported cases. The basic common thread is that a forum

must be provided to adjudicate the merits upon ful! "fact

specific" inquiry and development.

The procedural prohibition against threshold

dismissal of constitutionally based taking claims at the

pleading stage that allege, as.here in Appellant’s Complaint,

"injury-in-fact," was recently repeated by Justice Scalia in

Lucas v. So. Carolina Coastal Council, U.S. 120 L.Ed. 798,

112 S.Ct. 798 in an unequivocal manner:

"... Lucas properly alleged injury-in-fact in his

complaint, see App to Pet for Cert 154 (com-

plaint); id., at 156 (asking property" from the

date of the 1988 Act’s passage to "such time as

this matter is finally resolved"). No more can

reasonably be demanded. Cf. First English

Evangelical Lutheran Church of Glendale v

County of Los Angeles, 482 US 304, 312-313,

96 L. Ed. 2d 250 107 S Ct. 2378 91987)

Justice Blackmun finds it "baffling, post, at ---,

n 5, 120 L. Ed. 2d, at 830, that we grant

standing here, whereas "just a few days ago, in

Lujan v Defenders of Wildlife, 504 US ---, 119

L. Ed. 2d 351, 112 S$ Ct --- (1992),” we

denied standing. He sees in that strong

evidence to support his repeated imputations

that the Court "presses" to take this case, post,

at ---, 120 L. Ed. 2d, at 826, is “eager to

decide" it, post, at ---, 120 L. Ed. 2d, at 831,

and is unwilling to “be denied," post at ---, 120

L.Ed. 2d, at 829. He has a point: The

decisions are indeed very close in time, yet one

grants standing and the other denies it. The

distinction, however, rests in law rather than

chronology. Lujan, since it involved the

establishment of injury-in-fact at the sum-

mary judgment state, required specific facts

to be adduced by sworn testimony; had the

same challenge to a generalized allegation of

injury-in-fact been made at the pleading

stage, it would have been unsuccessful.

(Lucas. FN. 3 (2C) at p. 810) (Emphasis

supplied.)

This Court’s dismissal of Appellant’s Complaint at the

pleading stage was error and in direct conflict with one of the

basic tenants of the takings law, i.e. the full fact specific

development of each case, which by definition is unique to its

Own circumstances, must be allowed to occur. The test to be

applied by the trier of fact is the reasonable basis, given all

the circumstances of the claim, of the aggrieved property right

holder’s belief that it was indeed futile to continue the

administrative proceedings in this case. Hermanson v. Board

of County Comm’n, etc., 595 P.2d 698 (Colo. 1979). As

Justice Scalia wrote in Lucas, this is not a matter to be

disposed of at the "pleading Stage." That is the law of the

land and it was not followed in this threshold dismissal at the

pleading stage. The forum for developing the facts is not the

Supreme Court. Gifford, supra. Yet in deciding Appellant

had not met its "evidentiary burden" at the pleading stage, the

Court did just that and this is error.

IV.

THE COURT ERRED IN FAILURE TO CON-

SIDER THE FACIALLY INVALID REGULATION

ISSUE WHICH UNDER LUCAS AND YEE V. CITY OF

ESCONDIDO, --U.S.--, 112 S.CT. 1522, 118 L.ED.2D 153

(1992) IS DETERMINATIVE OF THE ADMINISTRA-

TIVE EXHAUSTION ISSUE.

The Court made a footnote disposition of Appellant’s

facially invalid rule contention as being raised for the first

time on appeal and therefore not to be considered. Appellant

respectfully disagrees.

In the standard of review cited in this opinion, the

Court sets forth the test upon appeal "when it appears from

the face of the Complaint that the plaintiff cannot assert any

facts which would entitle him to relief." (Slip Op. p. 3).

The invalid rule issue is indeed pled and creates a per se

taking claim that is fully vested under Lucas and Yee.

It is the rule of this Court that review of Rule 12

dismissals are de novo. True Oil Co. v. Sinclair Oil Corp.,

771 P.2d 781 (Wyo. 1989).

Here, the Complaint, (R. 4) alleged the invalid rule of

the "paleontological" category created by the administration

outside its legislative authority. For purposes of a Rule 12

review that pleading averment is taken as established. As

Justice Scalia observed in Lucas, at the pleading stage,

nothing more is required. A facially invalid regulation

vests the takings claim upon the date enacted and no more

administrative proceedings are required. The date of

enactment is January of 1994, before this claim was filed.

Both parties briefed and argued this issue to this Court.

This Court, even though the trial court elected not to discuss

the issue, upon a Rule 12 review, must review the entire

Complaint de novo as it is pled to see if any facts fit a cause

of action. There is absolutely no question that it does. Even

Presbytery admits that claim to exist with no further

administrative procedures required. This is the facial taking

arising from enactment of an invalid rule.*

This aspect of the Appellant’s takings claims were

pled, briefed and is before the Court for de novo review at

the pleading stage. It cannot be ducked here. Under Kerr

McGee Corp., supra, this administrative rule making is prima

facially invalid and is so pled in the Complaint. Accordingly,

under Lucas, no further administrative exhaustion is required.

Those claims vested in January of 1994 when the facially

created paleontology rule became effective. Yee v. City of

Escondido, --U.S.--, 112 Supp. Ct. 1522, 118 L.Ed.2d 153,

(1992). That is the law of this case and the law of the land.

It cannot be ignored in the pleading stage by a footnote

disposition. It is dispositive. The current status of the

facially invalid category of cases such as pled here, was

recently well summarized by a Federal District Court in

California in 1994:

"The Supreme Court has held that before a

property owner can make a challenge to the applica-

tion of an ordinance, he must exhaust both administra-

tive remedies under the applicable ordinance and any

remedy provided in the state courts that could lead to

the provision of just compensation. Williamson

“This Court has uniformly condemned and invalidated this very

type of administrative rule-making overreach in Kerr-McGee

Corporation v. Wyoming Oil & Gas Conservation Comm'n, No. 94-292,

decd. Sept. 27, 1994. This precedent should not be ignored here.

—

County Regional Planning Comm’n v. Hamilton Bank,

473 U.S. 172, 194, 105 S.Ct. 3108, 3120-21, 87

L.Ed.2d 126 (1985). The Supreme Court addressed

the ripeness requirement for a facial taking in Yee y.

City of Escondido, Cal, --U.S. ~~, LEZ S.Ct. 1522.

1532, 118 L.Ed.2d 153 (1992). In Yee, the Court

held:

While respondent is correct that a claim that

the ordinance effects at regulatory taking as applied to

petitioners property would be unripe ..., petitioners

mount a facial challenge to the ordinance. The allege

in this Court that the ordinance does not “substantially

advance a legitimate state interest’ no matter how it is

applied. As this allegation does not depend on the

extent to which petitioners are deprived of the

economic use of their particular pieces of property or

the extent to which these particular petitioners are

compensated, petitioners’ facial challenge is ripe.

Yee, ---U.S. at ---, 112 S.Ct. at 1532 (emphasis in the

original and citations omitted)." Adamson Companies

v. City of Malibu, 854 F.Supp. 1476 i. Cal.

1994).

The Complaint alleges the invalid rule and both parties

briefed and argued same before this Court. This is a Rule 12

review and the Complaint’s allegations are to be reviewed de

novo to determine the existence of any valid claim which

would allow a forum. To reject at the pleading stage

averments, Oi a facially invalid rule with the Lucas threshold

pleading requirement of "injury-in-fact" as not raised below

on a Rule 12 review violates this Court’s well established

procedural precedent of de novo review ahd avoids a

dispositive issue here on takings law as defined by Justice

Scalia in Lucas. Appellant’s taking claim was vested when

this lawsuit was filed. See also, Levald, Inc. vy. City of Palm

Desert, 998 F.2d 680 (9th Cir. 1993): Whitney Benefits, Inc.

v. United States, 502 U.S. 952 (1991). To reject this claim

at the pleading stage was error.

The Court’s reliance on W.S. § 35-11-1001(b) to

limit the vesting of Appellant’s Federal Constitutional

takings claim was invalid and in error.

This Court, in effect, held that the Wyoming legisla-

ture’s enactment of W.S. § 35-11-1001(b) creates the

exclusive takings remedy that Appellant could pursue here and

that in the confines of that statute, the administrative

exhaustion rule applies without exception to those procedures

and the futility exception is rejected.

It is without question that a state legislative enactment

cannot cperate to limit a claim brought under the Federal

Constitution and federal law controls. Hendler v. United

States, 952 F.2d 1364 (Fed. Cir. 1991). Yet, that is precisely

what the Court has done here by applying a limited State

statutory remedy to a constitutionally based takings claim

coupled with the requirement of absolute administrative

exhaustion. This is incompatible with the federal law and is

error.

W.S. § 35-11-1001(b) provides that a takings claim

may be brought upon a singular occurrence, i.e. if a mining

permit is denied due to classification of the area as rare and

uncommon. Taken to its logical extreme, this Court’s opinion

then suggests this is the only remedy as defined by the

parameters of the Wyoming statute. That concept is too

narrow and cannot restrict appellant’s constitutionally based

claims here.

The Appellant respectfully suggests error here. What

if the permit is denied for some other reason than the land

classification? By this Court’s opinion, there is no takings

claim. Or, as alleged here, what if an applicant cannot get a

statutory mandated hearing within 20 days; administrative

delays of 630 days; one direct and two related appeals to this

Court; enactment of an invalid rule which was designed to

focus on the denial of this permit and a leasehold that is going

to expire before the "endless trail of litigation" is followed out

of the administrative morass. As Justice Stevens wrote in

MacDonald, Sommer & Frates v. Yolo County, 477 U.S.

340, 350, "A property owner is of course not required to

resort to piecemeal litigation or otherwise unfair procedures

in order to obtain this determination."

These rhetorical questions are posed to frame the

dilemma the Appellant faced. Quite simply stated, the April

24, 1994 hearing date would, given the past track record of

the EQC with multiple continuances to accommodate the

protestants since 1992, in all likelihood, not have yet

occurred. Where is the remedy? This Court suggests still

another district court action in mandamus to compel a

hearing. Where does this endless trail of litigation end? City

of Pompano Beach v. Yardham Restraint, Inc., 641 So.2d

1377 (Fla. 1994). The remedy to test this administrative

hostility is a temporary takings claim under the United States

Constitution, under First English and Lucas. A state court is

under severe constraints to deny a forum at the pleading state

as occurred here after Lucas.

Appellant’s Complaint in this regard was crafted from

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96

L.Ed.2d 250, (1987) which was decided after Williamson

County Regional Planning Commission v. Hamilton Bank of

Johnson County, 423 U.S. 172, 87 L.Ed.2d 126, 105 S.Ct.

3108 (1985) First English creates the temporary takings

concept designed to cover situations precisely as are alleged

in the Complaint to have occurred here. Basic to the

temporary takings claim in Justice Rehnquist’s opinion in First

English and reaffirmed in Lucas by Justice Scalia, is the

concept if administrative futility where is it alleged, as there

in this Complaint, that it would be unreasonable to continue

the administrative process. Under Lucas, cutility exists as an

absolute if a facially invalid regulation is pled along with

injury-in-fact. Accordingly, a temporary takings claim tests

the administrative record upon a fully developed factual

record adjudicated below to determine the procedures,

variances and reasonableness not only of the administrative

process undertaken by the State but also the reasonableness of

the Appellant’s futility decision. Then, and only then, can

this Court make a fully informed appellate review of this

record.*

This Court’s opinion outright rejecting the futility

doctrine and a forum to develop and determine the facts of

what has occurred in this permit application matter is directly

at odds with the mandates of the U.S. Supreme Court in

‘creating the temporary takings concept. W.S. § 30-11-

1001(b) as applied here totally obviates the doctrine of

temporary takings in Wyoming and such violates the law of

the land.

The Court is respectfully asked to revisit this issue and

correct this error by providing a forum for this case to be

heard and the facts adjudicated.

VI.

The Court’s reliance upon Williamson, supra, is

misplaced as that case involved federal court subject

matter jurisdiction access prior to state court exhaustion.

With reference to takings claims originally filed in state

court, First English and Lucas control.

This concern ties in with the previous arguments. It

is respectfully suggested here that the court erred in failing to

make the critical procedural distinctions found in Williamson

as defined by the subsequent decisions in First English, Lucas

and their progeny.

The forum distinction is critical and has not subtly

been made by the United States Supreme Court. The first peg

As counsel submitted at oral argument, Appellant’s case may

or may not be won below, but at this point under the pleading

requirements of Lucas, this case begs a forum.

of the distinction is that Williamson was a complaint

emanating in the federal court system and was challenged

on the basis of a lack of federal court subject matter

jurisdiction as the State court procedures had not been

exhausted. Interestingly enough, the petitioner in Williamson

brought his federal court claims under 42 U.S.C. 1983, i.e.

the Federal Civil Rights Statute. Also noteworthy is a jury

trial was held in the federal court, then a J.N.O.V. entered

on the subject matter jurisdiction issue of the federal court to

hear the claims. The essence of the Supreme Court’s ruling

is that until "respondent" has filed and pursued his state

court inverse condemnation action to obtain compensation

in state court he cannot come to a federal court for relief.

The Appellant here has done just that and filed it’s state

court action first. However, this Court has denied that

forum. Even Williamson requires a forum to adjudicate the

facts of the takings claim in the state court as a basic

protection of a constitutional right from which Appellate

review can follow to apply the concepts of takings jurispru-

dence.

First English and Lucas make it clear that original state

court actions do not require administrative finalities of the

administrative process. In fact, both First English and Lucas

specifically distinguish Williamson on this point to make it

Clear.

Perhaps the Ninth Circuit made the best effort to show

the erosion of Williamson, supra, even in a federal court after

First English and Lucas:

[8] We must first consider whether

Levald’s facial challenge is ripe. Williamson

County Regional Planning Commission vy.

Hamilton Bank, 473 U.S. 172, 105 S.Ct.

3108, 87 L.Ed.2d (1985), placed "two hurdles

in the way of a takings claim brought in

federal court against states and their political

subdivisions." Sinaloa Lake Owners, Ass’n v.

City of Simi Valley, 882 F.2d 1398, 1402 (9th

Cir.1989). The first hurdle-that the claimant

must seek a final decision regarding the

application of the regulation to the property at

issue before the government entity charged

with its implementation-does not apply to facial

challenges, and is therefore not applicable here.

Yee, -- U.S. at ---, 112 S.Ct. at 1532.

[9,10] "The second, and independent,

hurdle established by Williamson County

requires plaintiffs to ‘seek compensation

through the procedures the State has provided

for doing so’ before turning to the federal

courts." Sinaloa, 882 F.2d at 1402 (quoting

Williamson, 473 U.S. at 194-195, 105 S.Ct. at

3120-21). Williamson, however, does not

require the plaintiff to bring a state court

action where it would be futile under

existing state law. Williamson, 473 U.S. at

196-97, 105 S.Ct. at 2121022; Sinaloa, 882

F.2d at 1402. "[T]he appropriate point for

determining the adequacy of state compensation

procedures is at the time the alleged taking

occur[red]." Sinaloa, 882 F.2d at 1402.

Here, the taking at issue in the facial challenge

allegedly occurred at the time the ordinance

was enacted--in 1986. California did not

recognize actions for inverse condemnation

based on regulatory takings until after the

Supreme Court’s decision in First English

Evangelical Lutheran Church v. County of Los

Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96

L.Ed.2d 250 (1987). Therefore, even though

Levald did not seek remedies in state court, it

was not required to do so because it would

have been futile to seek state court relief at the

time the alleged taking occurred. The claim is

ripe." Levald Inc. v. City of Palm Desert, 998

F.2d 680 (9th Cir. 1993) (Emphasis supplied.)

The Appellant respectfully submits that this Court’s

reliance on Williamson to deny a state court forum for it’s

constitutionally vested taking claims coupled with an absolute

requirement of administrative exhaustion and rejection of the

futility concept at the pleading stage was error under the First

English and Lucas. A forum must be provided for full fact

specific development of those constitutional claims. The

failure to so based upon a Williamson rationale is error.

CONCLUSION

Perhaps the policy touchstone that defines the

administrative hostility that Appellant found itself in simply

attempting to get a hearing and/or obtain a small mine permit

was given to the Court at oral argument by counsel for the

State of Wyoming in response to a question from Justice

Thomas. The question inquired of the State’s position should

twelve years be required to get a hearing or permit upon a ten

year mining lease. The response given was that was a cost of

doing business and we (State) have to look out for the rights

of the protestants. Parenthetically, nothing was said by State

showing any administrative concern for the Fifth Amendment

rights of the property right holder. That is the essence of the

hostile administrative climate this Appellant faced when it

brought it’s Fifth Amendment takings claim to the courts of

this State.

This Appellant simply asks this Court to revisit this

opinion. We rely on what Justice Scalia wrote in Lucas that,

at the pleading stage, a forum must be provided to develop

and adjudicate the fact specific nature of these constitutionally

based claims. That was denied here upon an evidentiary

standard in a Rule 12 review based upon a compromised

record.

This case begs it’s forum where a full and clear record

can be made and judicially determined as required by the

United States Supreme Court.

RESPECTFULLY SUBMITTED this 19 day of June,

1996.

s/JOHN R. HURSH

Attorney for Plaintiff

APPENDIX D

ORDER DENYING PETITION

FOR REHEARING

WYOMING STATE DISTRICT COURT

NO. 95-239

RISSLER & McMURRY CO., a

Wyoming corporation,

)

Appellant )

(Plaintiff), )

)

THE STATE OF WYOMING, )

)

Appellee )

(Defendant). )

ORDER DENYING PETITION FOR REHEARING

This matter came before the Court on the appellant’s

petition for rehearing. The Court has fully considered that

petition and finds it should be denied. It is therefore,

ORDERED that the petition for rehearing be, and

hereby is, denied.

DATED this 16 day of July, 1996.

FOR THE COURT:

s/William A. Taylor

Chief Justice

APPENDIX E

VERIFIED COMPLAINT

(Without attachments)

IN THE DISTRICT COURT OF

LARAMIE COUNTY, WYOMING

FIRST JUDICIAL DISTRICT

Civil Action No. 136-71

RISSLER & MC MURRY CO.,

A Wyoming Corporation,

Plaintiff,

)

-VS- )

)

THE STATE OF WYOMING, )

)

Defendant.

VERIFIED COMPLAINT

COMES NOW Plaintiff, Rissler & McMurry Co., a

Wyoming corporation, by and through counsel, John R.

Hursh and Donald J. Rissler of Central Wyoming Law

Associates, P.C., and alleges as follows:

FACTS COMMON TO ALL CLAIMS

l. The Plaintiff is a corporation organized and

existing under the laws of the State of Wyoming with its

principal place of business in Casper, Wyoming.

y & The State of Wyoming, as a body politic, is

sued as the Defendant herein under the Fifth and Fourteenth

Amendments to the Constitution of the United States, and

Qe mn Sy SS MIT ae FO, ha

' Article I, Sections 33 and 35 of the Constitution of the State

of Wyoming.

> Venue of this cause is properly set in this

Judicial District as the seat of government of the Defendant

State of Wyoming by operation of W.S. § 1-5-108.

4. The separate and distinct takings claims alleged

herein arise under the Just Compensation and Due Process

clauses of the Fifth and Fourteenth Amendments of the

Constitution of the United States, and Article I, Sections 33

and 35 of the Constitution of the State of Wyoming.

5. Notice of these claims has been presented to the

State Auditor as required by W.S. § 9-1-404 and W.S. § 1-39-

101 et seq. by registered mail, return receipt requested, on

February 9, 1994, (Notice Letter Attached).

6. The State Auditor formally denied the claim on

February 16, 1994, by return letter to the Plaintiff. (Denial

Letter Attached).

ys Plaintiff alleges that the Temporary Takings

claims as alleged herein commenced on May 5, 1992,

reoccurred on August 25, 1993, and again on January 31,

_1994, are of a continuing nature.

8. On or about July 2, 1989, the Defendant State

of Wyoming, by and through its duly elected and constituted

Board of Land Commissioners, granted Plaintiff Rissler &

McMurry a Limestone Mining Lease for a section of State

owned school land more particularly described as:

Section 16, T.32N., R.81 W.,

6th Principal Meridian, com-

prising 640 acres in Natrona

County, Wyoming.

9. This Lease Agreement to mine limestone

created a contractually and legally sufficient vested and

valuable property right in the estate granted for the mining of

limestone for a period of ten (10) years. Said Lease remains

im full force and effect.

10. On December 17, 1991, the Plaintiff submitted

its Application for a Small Mine Permit in order to commence

mining the limestone to the Department of Environmental

Quality of the State of Wyoming as required by W. S. 35-11-

401, et. seq.. This initial Small Mine Permit Application

contemplated mining forty (40) acres under the Mining Lease.

11. On March 13, 1992, the Department of

Environmental Quality certified Plaintiff's Small Mine Permit

Application as technically complete pursuant to W.S. § 35-11-

406(h). Accordingly, W.S. § 35-11-406 then required the

State to issue the permit upon hearing by the Environmental

Quality Council unless certain reasons for denial exist. On

March 13, 1992, all statutory conditions for issuance of the

Small Mine Permit had been met by Plaintiff.

ya By operation of W.S. § 35-11-406(k), a hearing

on Plaintiff's proposed Small Mine Permit Application was

required to be held within twenty (20) days after publication

by the Environmental Quality Council. The hearing was, by

law, to be held on May 5, 1992. To this date, no such

hearing has ever been held on this Permit Application.

13. On March 27, 1992, the Plaintiff learned, by

reading the newspaper, that the Environmental Quality

Council was going to engage in rule making so as to declare

the area known as "Bessemer Mountain", which area included

Plaintiff's Mining Lease, as “rare and uncommon" under

W.S. § 35-11-406 instead of conducting its Mine Permit

Hearing as required by law. This designation would create

a criteria for denial of the permit which did not exist upon the

date the Application was filed, i.e. rare and uncommon.

14. Plaintiff was not given formal notice of this

proposed ex post facto rule making as required by law and

objected to any such procedure and any delays in its mandated

Small Mine Permit Hearing.

- ee _—

ee ee ee LS ee we) ee ee ee eS >

15. Nevertheless, on April 23 and 24, 1992. the

Environmental Quality Council (EQC) of the Defendant State

of Wyoming met and declared the area encompassing

Plaintiff's State Mining Lease as a rare and uncommon area.

This designation was after the fact of Plaintiff's Application

on December 17, 1991, and the DEQ’s determination under

the law that the Application was technically complete on

March 13, 1992. This was an ex post facto regulatory action

by the E.Q.C.. Subsequently, on May 4, 1992, without any

statutory authority, the EQC remanded Plaintiff's Small Mine

Permit Application to the DEQ to apply, on an ex post facto

basis, the rare and uncommon criteria to the Application, to

qualify as a means for denial of this Small Mine Permit and

Plaintiff's property rights in the Limestone Mining Lease.

16. In order to protect its property rights in the

Mining Lease, Plaintiff was forced to appeal the acts on the

part of the EQC to the Wyoming Supreme Court. This appeal

resulted in a reversal of the EQC’s designation of this area as

rare and uncommon, as being done without rules and

definitions. The Supreme Court found in its Opinion dated

July 15, 1993, that the EQC’s conduct was arbitrary,

capricious, and in violation of law. 856 P.2d 450 (Wyo.

1992).

17. Plaintiff again requested a hearing on its

December 17, 1991, Small Mine Permit Application. On July

8, 1993, the DEQ again certified that the Application still met

the statutory criteria and was technically complete. By law,

the hearing was to be on August 25, 1993. That hearing was

not held.

18. On August 25, 1993, the EQC again continued,

without any authority and over Plaintiff's continuing

objections, the permit hearing until the EQC could attempt to

do another rule making on the rare and uncommon criteria

and then apply same to Plaintiff's Mine Permit Application on

yet another ex post facto basis.

19. On December 14, 1993, the EQC drafted new

rules to define a rare and uncommon criteria and decided to

retroactively apply its new rules to Plaintiff's pending Small

Mine Permit pending since December 17, 1991, and advised

the parties of the Council’s intent that the area encompassed

in Plaintiff's Application was going to be again designated

rare and uncommon at a hearing to be held on February 16,

1994, over Plaintiff's objections.

20. On January 4, 1994, the EQC published new

rules for rare and uncommon designations under W.S. § 35-

11-112(a)(o). These new rules included paleontological sites

designed to specifically capture the area of Plaintiff's Mining

Lease. That criteria is not one defined in the enabling

legislation to form the basis of a rare and uncommon area.

W.S. § 35-11-112(a)(0).

21. On January 31, 1994, the EQC, without

authority, granted a further continuance of the Plaintiff's

Permit Application hearing until April of 1994, all over

Plaintiff's continuing objections.

22. On February 10, 1994, the Plaintiff filed its

Verified Notice of Claim, which was denied by the Defendant

State of Wyoming on February 16, 1994.

23. On February 17, 1994, the EQC delayed the

decision on the rare and uncommon designation again until

after the legislative sessions.

24. Simultaneously, with the filing of this lawsuit,

the Plaintiff has notified the DEQ of its withdrawal of the

Small Mine Permit Application TFN 2 6/247.

a. That the Plaintiff has been faced with a

regulatory regime and environment clearly hostile to mining

the limestone under its State Mining Lease, as evidenced by

the acts and omissions of the EQC and its staff, since its

Small Mine Permit Application was initially filed on

December 17, 1991.

26. Since March of 1992, the Plaintiff has

expended enormous sums of money in legal costs, expert

witness fees, appeal costs, and other expenses in order to

simply obtain a hearing on its Small Mine Permit Application

which by law was to be held on April 2, 1992, in order to

utilize the State Mining Lease for which the State of

Wyoming has been paid.

FIRST CLAIM FOR RELIEF TEMPORARY TAKING

OF PROPERTY RIGHT 40-ACRE SMALL MINE

PERMIT

27. The allegations of paragraphs 1 through 26 are

realleged and incorporated by reference herein.

28. By reason of the foregoing facts and chronol-

ogy, the Defendant State of Wyoming, has temporarily taken

and deprived the Plaintiff of its benefits of ownership of the

State Mining Lease and deprived Plaintiff of viable use of the

property rights in question without just compensation and in

deprivation of its rights to procedural and substantive due

process, all in violation of the Fifth and Fourteenth

Amendments of the Constitution of the United States; and

Article I, Section 33 and 35 of the Constitution of the State of

Wyoming.

29. As a direct result of the acts and omissions of

the Defendant State of Wyoming, by and through the

Environmental Quality Council, Plaintiff has been denied and

deprived of the benefits of Plaintiff's valuable property rights

in Plaintiff's Limestone Mining Lease and denied its

investment backed uses and expectations of the Mining Lease

SO as to constitute a Temporary "Takings" in violation of law.

Plaintiff alleges this Temporary Taking to have first occurred

on May 5, 1992, and to have reoccurred on August 25, 1993,

and again on January 31, 1994. Accordingly, the Plaintiff

alleges and believes this Temporary Taking to be of a

continuing nature until the date of filing of this lawsuit and

the withdrawal of its Small Mine Permit Application.

30. Asadirect result of the foregoing, Plaintiff has

been continuously denied and deprived of mining limestone

and processing same under its Mining Lease since April 2,

1992, for forty (40) acres of the lease.

31. Plaintiff's reasonable investor backed expecta-

tion under its 40 acre Small Mine Permit was to recover

3,036,910 tons of limestone.

32. Plaintiff has already mined 113,070 tons under

its ten-acre exemption and paid the State of Wyoming its five

percent (5%) royalty in the amount of $56,535.00.

33. The remaining net tonnage in this 40-acre

parcel of expected and reasonable limestone which Plaintiff

claims herein to have been temporarily taken by the

Defendant State of Wyoming through the hostile regulatory

conduct of the EQC is 2,923,840 tons.

34. The fair market value of this limestone,

processed as defined in the Mining Lease is $7.00 per ton.

ai By reason of the foregoing, Plaintiff has been

temporarily deprived of mining the limestone from this parcel,

all to Plaintiff's damage of a fair market value of

$21,840,023.00.

SECOND CLAIM FOR RELIEF PERMANENT TAK-

INGS - 110 ACRE MINE PERMIT

36. The allegations of paragraphs 1 through 35 are

realleged and incorporated by reference herein.

37. By reason of the foregoing, the Defendant State

of Wyoming has permanently deprived and taken Plaintiff’s

valuable property rights in its Limestone Mining lease with

the State of Wyoming without just compensation and in

deprivation of Plaintiff’s rights to procedural and substantive.

due process, all in violation of the Fifth and Fourteenth

Amendments to the Constitution of the United States, and

Article I, and Sections 33 and 35 of the Constitution of the

State of Wyoming.

ain eeiinisicriniiiinciilad

Ne ee eee

38. By reason of the foregoing, Plaintiff alleges

that it would be futile to continue to pursue any further

administrative remedies in obtaining its Small Mining Permit

in the face of the continuing hostile regulatory environment,

all in violation of its constitutional rights with respect to

utilizing its valuable property rights in its State Mining Lease

and that said permanent taking has now become fully vested

and accrued.

39. As such, Plaintiff alleges and believes the

taking and deprivation of its property rights is now permanent

without just compensation and due process and that Plaintiff's

State Mining Lease has been rendered valueless.

40. _ Plaintiff’s reasonable investor backed expecta-

tion under this Mining Lease contemplated mining 110 acres

of this Lease for recoverable limestone. The Plaintiff has

already mined 113,070 tons under Plaintiff’s ten-acre

exemption and paid the State of Wyoming $56,535.00 in

royalties at five percent (5%).

41. The remaining net tonnage in this parcel of

expected and recoverable limestone which Plaintiff claims

herein to have been permanently taken by the Defendant State

of Wyoming through the conduct of the EQC is 2,834,289

tons.

42. The fair market value of this limestone,

processed as defined in the Mining Lease is $7.00 per ton.

43. By reason of the foregoing, Plaintiff has been

permanently deprived of mining the limestone under its

investor backed expectations, all to its damage of a fair

market value of $19,840,023.00.

DAMAGES

44. The allegations of paragraphs | through 43 are

realleged and incorporated by reference herein.

45. The fair market value of the limestone to be

mined and processed as defined in the Mining Lease is $7.00

per ton.

46. The total limestone reserves on the Lease total

28,895.817 tons with a total fair market value of

$206,271,419.00.

47. The total recoverable limestone reserves in the

40-acre Small Mine Permit Application now pending is

3,036,910 tons. The fair market value of which is

$21,958 ,370.00.

48. The total recoverable limestone reserves in the

110 acre parcel is 2,834.289 tons. The fair market value of

which is $19,840,023.00.

49. The Plaintiff has mined to date 113,070 tons

from these reserves under its 10-acre exemption.

50. By reason of the foregoing, Plaintiff's damages

are claimed as follows:

a. Temporary Takings Claim:

40-Acre Small Mine Permit 2,923,840

Net Tonnage @ $7.00/ton $20,466,880.00

b. Permanent Takings Claim:

110-Acre Permit 2,834,289

Net Tonnage @ $7.00/ton $19,840,023.00

Total Damages Claimed: $40,036,903.00

WHEREFORE, Plaintiff demands judgment against

the Defendant for the alleged takings claims and its damages

as alleged herein, interest from April 2, 1992, attorney fees,

and its costs of this action, all as just compensation for the

taking of Plaintiff's property rights.

DATED this 23 day of February, 1994.

s/JOHN R. HURSH

Attorney for Plaintiff

APPENDIX F

WYOMING STATUTES § 35-11-406(m)

"(T]he requested permit, other than a surface

coal mining permit, shall be granted if the

applicant demonstrates that the application

complies with the requirement of this act and

all applicable federal and state laws. The

director shall not deny a permit except for one

(1) or more of the following reasons:

(i) The application is incomplete;

* * *

(vi) The proposed mining operation

would irreparably harm, destroy or materially

impair any area that has been designated by the

council a rare or uncommon area and having

particular historical, archaeological, wildlife,

surface geological, botanical or scenic value;

* * *

(x) If written objections are filed by an

interested person under subsection (f) [sic (k)]

of this section."

WYOMING STATUTES § 35-11-112(a)(v)

The EQC shall ...

"(v) Designate at the earliest date and to

the extent possible those areas of the state

which are very rare or uncommon and have

particular historical, archaeological, wildlife,

surface geological, botanical or scenic value.

When areas of privately owned lands are to be

considered for such designation, the council

shall give notice to the record owner and hold

hearing thereon, within a county in which the

are, Or major portion thereof, to be so desig-

nated is located, in accordance with the

Wyoming Administrative Procedure Act."

SCR RRS ERR IIE RI eg ot 5 RE ot enter are a Pe at . P .

; : . ee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.