A Fruitland quarry that sits next to a private high school was given back its mining permit by a three-judge panel in the Missouri Eastern District Court of Appeals in St. Louis on Tuesday.

It has not been decided if Saxony Lutheran High School will continue to pursue the case to stop mining operations.

Strack Excavating LLC and the Missouri Department of Natural Resources Land Reclamation Commission appealed a September decision by Judge William L. Syler in Cape Girardeau County Circuit Court that said the LRC acted outside its authority in granting a permit to the quarrying operation a year before, in September 2011. Tuesday a decision was handed down that said the commission acted within its rights.

"The Court concluded that because the Commission has the power to 'examine and pass on' permit applications, it is inferred that the Commission has the power to impose conditions in a mining permit," said Stephen G. Jeffery, attorney for Saxony Lutheran High School, by email. "We are still reviewing the opinion, and I am sure Saxony is evaluating its next steps."

A message left Wednesday with the Saxony board president was not returned.

"We're happy with that decision," J.W. Strack, owner of Strack Excavating LLC, said Wednesday. He is waiting to hear from his legal team when he is clear to operate, he said, but he is preparing to begin hiring so that mining work can resume.

The decision is not final, according to Nancy Gonder, spokeswoman for the Missouri Attorney General's Office, representing the LRC and Strack. "If the decision becomes final as written, the Cape Girardeau County Circuit Court will issue an order reinstating the Commission's decision to grant the permit to Strack," Gonder said.

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

During the original permitting process, Saxony Lutheran High School, with a property line 55 feet from the proposed quarry's border, said the mine presented a health hazard to students and staff.

During a weeklong permit hearing July 2011, a state law was passed and immediately went into effect stating all mining operation boundaries must be 1,000 feet from schools. Saxony rested its case, never calling expert witnesses, believing the law would automatically make permitting impossible, said Jeffery. But the LRC granted the permit with the stipulation that Strack's boundary be pulled back to meet the buffer requirement. Saxony argued the commission had no authority to impose conditions, such as an amended boundary, in any mining permit. Syler agreed and vacated the permit in February.

Saxony and Save Our Children's Health Inc. also were granted standing in a dispute against another mine in the area, Heartland Materials LLC, requiring the LRC to set a public hearing.

The LRC is scheduled to meet again May 23, but the issue was not listed as part of its agenda, as of Thursday.

salderman@semissourian.com

388-3646

Pertinent address:

County Road 601, Fruitland, Mo.

815 Olive St., St. Louis, Mo