CADDNAR Updates
Recent Caddnar Decisions (February 6, 2013)
United Minerals v. DNR, 13 CADDNAR 87 (2013)
For consideration was an NOV which determined, based on a seismograph reading, the operator of a coal mine exceeded the blast vibration limit under Indiana SMCRA. Following opposite holdings on summary judgment by the administrative law judge and by the Gibson Circuit Court, the Court of Appeals remanded at 26A05-1007-PL-453 for a hearing of the facts. Following the hearing on remand, the administrative law judge found the seismograph’s geophone was likely decoupled from the soil. Decoupling made the blast reading unreliable, and the NOV was vacated. (Administrative Cause No. 07-186R)
Meyers Subdivision v. DNR & Kranz, 12 CADDNAR 282 (2011)
For consideration was a dispute concerning riparian usage between the riparian owner and easement holders, as well as matters of agency authority and takings claims, along Bass Lake, a public freshwater lake in Starke County. The Starke Circuit Court affirmed on judicial review, and the Court of Appeals affirmed in June and August (on rehearing) published opinions at 75A03-1112-PL-00577. In December 2012, the Indiana Supreme Court denied transfer. (Administrative Cause No. 10-093W)
Bowman v. Browning Logging & State Farm Inc., 13 CADDNAR 79 (2012)
In an order of partial summary judgment, the administrative law judge ruled the security posted under the Timber Buyer Act at IC 25-36.5-1-3 is a “statutory bond” in favor of Indiana timber growers. The purposes of the bond are to secure an honest cutting and accounting for timber purchased by the timber buyer that provides the security to the DNR, to secure payment to the timber growers, and to insure the timber growers against fraudulent acts. A surety is not released from responsibility to a timber grower because a timber buyer violates its contract with the surety or because the timber buyer or the timber buyer’s agents commit a crime. After partial summary judgment, the parties dismissed the proceeding. (Administrative Cause No. 11-211F)
Hoosier Env. Council v. INDOT & DNR (Dismissal), 13 CADDNAR 77 (2012)
The administrative law judge considered circumstances in which an order of partial summary judgment warranted inclusion in CADDNAR. Because it follows a “contested proceeding” before the Commission under AOPA, inclusion is warranted if the order considers novel legal issues or is a case of first impression. (Administrative Cause No. 11-067W)
Hoosier Env. Council v. INDOT & DNR, 13 CADDNAR 69 (2012)
In an order of partial summary judgment, the administrative law judge ruled the Commission’s jurisdiction over bridge construction was limited, under the Flood Control Act, to the boundaries of the floodway. That INDOT did not obtain and DNR did not require flood easements before approval of a permit were not grounds for rescission. The modeling parameters used to determine construction impacts were appropriate. (Administrative Cause No. 11-067W)
Majewski v. DNR, 12 CADDNAR 299 (2011)
The administrative law judge affirmed denial of an application to place a nonwoven textile, within an “area of special concern”, on the bed of Cedar Lake, a public freshwater lake in Whitely County. On judicial review, the denial was reversed by the Whitley Circuit Court in November 2012. (Administrative Cause No. 07-235)
O’Neal v. Bowers and Spurgeon, 13 CADDNAR 64 (2012)
For consideration was a complaint by a landowner in Washington County against a timber buyer, under the Timber Buyers Act, for timber harvested without the owner’s knowledge or consent. The administrative law judge ruled the timber buyer did not exercise due diligence to determine ownership and awarded triple stumpage value. A neighbor contributed to the misunderstanding of ownership and was ordered to reimburse the timber buyer for one-third of the award. (Administrative Cause No. 11-177F)
Tersigni v. Osbon & Wright, 13 CADDNAR 60 (2012)
For consideration was a riparian rights dispute on Beaver Dam Lake, a public freshwater lake in Kosciusko County. Osbon and Wright were riparian owners. Tersigni accessed the lake using a platted public road and placed a pier on the shoreline at the end of the road. As a member of the general public, Tersigni was entitled to use the road to access the lake but was not a riparian owner and was not granted an easement by a riparian owner. Tersigni was ordered to remove the pier, and the parties were ordered to refrain from placing any structure interfering with lake access from the road. (Administrative Cause No. 12-063W)
Jackson v. DNR, 13 CADDNAR 53 (2012)
A one-year ejection from DNR properties was found reasonable and was affirmed following a hearing of the facts. Jackson demonstrated lack of appropriate sensitivity for others who used public recreational lands and a pattern of hostility to law enforcement, including episodes of verbal and physical abuse. The ejection expired on January 9, 2013. (Administrative Cause No. 12-030P)
DNR v. Midwestern Production Corp., 13 CADDNAR 49 (2012)
The administrative law judge affirmed the revocation of permits and a civil penalty assessment for failure by an operator to make petroleum production wells operable and to submit quarterly reports to DNR’s Division of Oil and Gas. The operator had been provided 30 months to bring the wells into an operable condition and had not sought reviews of NOVs that preceded the revocations. (Administrative Cause No. 11-145G)
