[CITE: Bieda v. B & R Development and DNR, 9 CADDNAR 1 (2001)]
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Cause #: 00-066W
Name: Regina Bieda v. B & R Development and DNR
Administrative Law Judge: Lucas
Attorneys: Ferngren; Tallian; Wolter, Boyko
Date: January 17, 2001
FINAL ORDER FOR SUMMARY JUDGMENT
Summary judgment is granted in favor of B & R Development and the Department of Natural Resources. Certificate of Approval [for] Construction in a Floodway (FW-20,047) is approved as issued by the Department of Natural Resources.
STATEMENT OF THE CASE
1. At issue in this proceeding is Certificate of Approval for Contruction in a Floodway #FW-20,047 (the "license") granted under IC 14-28-1 (the "Flood Control Act") by the division of water (the "Division") of the department of natural resources (the "Department") in favor of B & R Development for the placement of a new culvert crossing over Robbins Ditch in Portage, Porter County, Indiana. The new crossing would consist of 16 parallel 54-inch diameter culverts set in headwalls and would be authorized for placement as more specifically set forth in the license.
2. On March 28, 2000, Regina Bieda initiated the proceeding by correspondence filed with the natural resources commission (the "Commission").
3. This proceeding is controlled by IC 4-21.5 (the "administrative orders and procedures act" or "AOPA") and rules adopted by the Commission to assist in the implementation of the AOPA. Pursuant to 312 IAC 3-1-1(b), an affected person who is aggrieved by a determination of the Department may apply for administrative review of the determination under IC 4-21.5 and 312 IAC 3-1.
4. On August 9, 2000 a "Motion for Summary Judgment by B & R Development" and "Memorandum of Law in Support of Motion for Summary Judgment by B & R Development" were filed. On August 9, 2000, the "Motion to Dismiss by Respondent Department of Natural Resources" and the "Department's Memorandum in Support of Motion to Dismiss for Failure to Qualify for Review under Ind. Code 4-21.5-3-7 and for Failure to State a Claim upon which Relief Can be Granted" were filed.
5. On August 13, 2000, the "Motion by B&R Development to Join in DNR's Motion to Dismiss" was filed. The motion is granted. In addition, the Department is made a beneficiary to the motion to dismiss by B & R Development. Because B & R Development is the license applicant, and the Department the regulatory authority, to consider a final disposition in favor of B & R Development that would not fully adjudicate a proceeding would render the relief a nullity. Both the motion for summary judgment and the motion to dismiss will be considered as if filed jointly by B & R Development and the Department of Natural Resources (the "Respondents").
6. On October 5, 2000, the Commission's Administrative Law Judge provided a schedule by which Regina Bieda was to file her responses to the motions described in Finding 4. She was to file any response to the motion to dismiss by October 19, 2000 and to the motion for summary judgment by November 2, 2000. Bieda has not filed a response to either motion.
STANDING AND SUFFICIENCY OF PETITION FOR ADMINISTRATIVE REVIEW
7. The Department contends Regina Bieda's initial petition for review filed on March 28, 2000 failed to state facts demonstrating she is aggrieved or adversely affected by the granting of the license as required by IC 4-21.5-3-7(a) and 312 IAC 3-1-1(b). In addition, Bieda is alleged to have failed to meet her burden of proof and production at the petition stage. The Department contends, "As a matter of law, Claimant cannot proceed further in this cause, and her
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case should be dismissed with prejudice" under Trial Rule 12(B)(6) and 312 IAC 3-1-9(b)(4).
8. The pertinent portions of IC 4-21.5-3-7(a) provide, in order to qualify for administrative review of a license under AOPA, a person must file a written petition that states facts demonstrating one of the following:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law
In other words, the petitioner must establish "standing."
9. "Standing" is primarily a judicial doctrine, and it focuses on "whether the complaining party is the proper person to invoke the court's power." Pence v. State, 652 N.E.2d 486, 488 (Ind. 1995). Standing serves to limit jurisdiction over a particular case, for a court may only resolve real controversies in which the complaining party has a personal stake in the outcome of the lawsuit and has sustained, or is in immediate danger of sustaining, direct injury as a result of the
complained conduct. Musgrave v. State Bd. of Tax Comm'rs, 658 N.E.2d 135, 138 (Ind. Tax 1995). Pence v. State cited previously.
10. The issue of standing is properly raised through a Trial Rule 12(B)(6) motion for a party's lack of standing will deprive a court of jurisdiction over a particular case. Musgrave cited previously. Pursuant to 312 IAC 3-1-9(b)(3), the Commission has delegated to its administrative law judges the authority to dismiss a petition if the "person seeking administrative review does not qualify for review under IC 4-21.5-3-7."
11. The Commission has consistently applied a liberal approach to determining a person has standing under AOPA, at least in cases such as this one where an environmental or safety concern of potentially broad public interest is presented.
As stated in Hoosier Environmental Council v. RDI Caesar's River Boat Casino, LLC v. DNR, 8 Caddnar 48 (1998), with finding enumeration and most citations deleted:
On administrative review, an agency must develop a full and complete record. An administrative law judge must make specific findings to crystallize the agency's analysis of evidence so as to provide a court with the opportunity for intelligent judicial review of the agency decision. The administrative law judge conducts a hearing de novo, weighing evidence and reaching conclusions, rather than deferring to the initial determination by the agency.
Administrative review authorities evolve policy through a case-by-case process. Adjudicatory policymaking is particularly appropriate where the administrative review authority is also the ultimate authority for the agency.
The Indiana General Assembly has developed a statutory relationship between the Department and the Commission designed to support meaningful review of decisions at the agency level. In the late 1980s, both the Department and the Commission were subjected to "Sunset" evaluation under IC 4-26-3. Within that process, the Indiana Legislative Services Agency ("LSA") offered recommendations concerning whether the Commission should have a continued existence. The first alternative recommendation by LSA was to abolish the Commission, an alternative which the legislature rejected with the retention of the Commission under P.L. 28-1990. The second alternative, and the one more closely identified with the policy choice of the Indiana General Assembly, was supported by the following critique by LSA:
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...The Director of the DNR [the Department] would receive all day-to-day decision-making authority. Departmental decisions would be appealed through the administrative adjudication process, with the Commission acting as final adjudicative authority. This change in authority would be particularly effected in the DNR regulatory functions such a mining and water, as it would serve to process applications more efficiently on items with no conflict. Public notification and input would be continued on such initial actions....
Under the current legislative design, the director or a Department employee delegated by the director issues all "licenses" for the Department. The Commission is the "ultimate authority" for the Department under the AOPA. The Department makes the day-to-day licensing decisions, but these are subject to administrative review by the Commission. Administrative review is particularly noteworthy for issues involving "mining" and, here "water," which are likely to invoke public interest. Working properly together, the Department and the Commission form a complete administrative record supportive of reasoned agency action. Administrative review forms an element of policymaking in which the Commission, as ultimate authority for the Department, has an important role.
....
As determined by the Commission, the purpose of a petition [for administrative review] is to provide any respondents with "reasonable notice as to the subject of administrative review. The general rules for civil pleadings require that a claim include a short and plain statement showing that the pleader is entitled to relief and a demand for the relief to which he deems himself entitled. All civil pleadings are to be construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points. Where not otherwise inconsistent with the AOPA or 312 IAC 3-1, a provision of the trial rules may be applied. The application appears appropriate to the construction of requests for administrative review as well. The result would be both incongruous and inequitable if a more stringent standard for initiating a claim were required for the informal AOPA than for a more formal civil proceeding.
....
The Indiana General Assembly in expressing its intent for the Flood
Control Act notes the "loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people. ..." Administrative reviews of licensing decisions by the Department made under the Flood Control Act or the....can qualify as state environmental cases.
The Indiana General Assembly has also enacted legislation supporting a liberal view of standing with respect to environmental cases generally. IC 13-30-1 is probably best-known as authorizing the initiation of civil citizen suits in the name of the state for declaratory and equitable relief....The chapter also provides standing, however, to a citizen of Indiana to intervene in an
administrative or licensing proceeding upon an allegation the proceeding "involves conduct, programs, or products that may have the effect of significantly impairing, polluting, or destroying the environment of Indiana."
With this legal platform as a foundation, a recent decision by the Commission is informative. The Commission considered an attack on standing with respect to administrative review of a licensing action under the Flood Control Act in Wells v. DNR, Cass County Board of Com's, and American Timber Bridge & Culvert, 7 Caddnar 186
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(1997). The Commission found a citizen of the county and "user of natural resources in the area" had sufficient standing to obtain administrative review of a license to build a bridge using creosote-treated timbers. "Where its regulatory authority is based upon environmental considerations, the Commission has either assumed or viewed liberally the standing of citizens to participate in adjudicatory processes. Extensive research efforts have not encountered even one instance where the Commission has denied standing if environmental concerns were at issue."
12. Subsequent to the disposition of Hoosier Environmental Council v. RDI Caesar's River Boat Casino, the Court of Appeals of Indiana was called upon to review questions of standing and sufficiency for a proceeding decided by another entity that provides administrative review. Similar to the relationship of the Commission to the Department, the Office of Environmental Adjudication (OEA) provides administrative review and is the ultimate authority for the Indiana Department of Environmental Management. The Court of Appeals reasoned in OEA v. KUNZ, 714 Ind. App. 1190 (1999), at page 1195:
"It is, of course, well settled that administrative pleadings are to be liberally construed and amended." Brock v. Dow Chemical USA, 801 F.2d 926, 930 (7th Cir. 1986); see also Abercrombie v. Clarke, 920 F.2d 1351, 1360 (7th Cir. 1990), cert. denied, 502 U.S. 809, 112 S.Ct. 52, 116 L.Ed.2d 29 (1991). A complaint in an administrative proceeding need not "enumerate precisely every event to which a hearing examiner may finally attach significance." L.G. Balfour Co. v. Federak Trade Comm'n, 442 F.2d 1, 19 (7th Cir. 1971). Rather, the purpose of the administrative complaint is to give the responding the party notice of the charges against him. Id. Reversal shall not occur absent evidence that a party is misled by an administrative complaint, resulting in prejudicial error. Id.
In effect, the Court of Appeals has determined what is sometimes called "notice pleading" governs petitions for administrative review under AOPA just as notice pleading governs civil complaints.
13. The Court of Appeals of Indiana ruled OEA committed reversible error in not allowing the petitioner to plead over, so long as the initial pleading showed subject matter jurisdiction over the claim. This ruling is particularly noteworthy because, for OEA, another statute supplements what an AOPA petition for administrative review is to include. As provided in IC 13-15-6-2, a petition for review before OEA must include a statement "with particularity" of the reasons for the request for review, a statement "with particularity [of] the issues proposed for consideration at the hearing," and several other items of information. These additional requirements for specificity do not apply to a petition for administrative review before the Commission. Clearly, the Commission can demand no more specificity than can OEA.
14. The Department places reliance in its motion to dismiss upon Schultef, et al. v. J. W. Jones and DNR, 7 Caddnar 95 (1999). In Schultef, however, the record was "totally devoid" of any factual basis upon which administrative review could be founded. The initial request for administrative review provided "no information as to the basis averred for Claimants' standing to complain, the substantive permit terms at issue, or even the law alleged to have been violated." Similarly, a supplemental pleading also failed to provide basic information needed to consider the request for review. In effect, neither the original nor the supplemental pleading were sufficient to place the Commission or the parties on "notice" as to the substance of the grievance or whether the Commission
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had jurisdiction over the subject matter.
15. In the instant proceeding, Regina Bieda contended in her initial petition for administrative review the project area would increase flooding to adjoining property owners and was likely to harm endangered species located in the area, both subjects under the umbrella for consideration of the Flood Control Act.
16. Subsequently, the Administrative Law Judge granted leave to Bieda's attorney to file written contentions to supplement her original petition. The "Claimant Regina Bieda's Written Contentions" were then filed on July 19, 2000. These contentions were that Bieda is a landowner along Robbins Ditch and her property is near or abutting the bridge to be replaced pursuant to the license. Bieda claimed to be adversely affected by issuance of the license, including harm alleged to the capacity of the floodway and cumulative effects that could harm fish, wildlife, and botanical resources. These contentions state a cause of action under the Flood Control Act and are within the subject matter jurisdiction of the Commission.
17. In light of OEA v. Kunz, the pleadings filed by Bieda are sufficient to withstand the Department's motion to dismiss. Schultef was written without benefit of Kunz as precedent, and to the extent it may be inconsistent with KUNZ, must now be limited.
18. Regina Bieda has demonstrated both standing and the statement of a claim sufficient to withstand the "Motion to Dismiss by Respondent Department of Natural Resources."
SUMMARY JUDGMENT IN FAVOR OF GRANTING OF THE LICENSE
19. Summary judgment is appropriate only where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).
20. As the moving party, B & R Development has the burden of proving it is entitled to summary judgment against the Regina Bieda in support of the Department granting the license.
21. Summary judgment is made applicable to this proceeding by IC 4-21.5-3-23. Subsections (a) and (b) provide in pertinent part:
(a) A party may, at any time after a matter is assigned to an administrative law judge,
move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.
(b) . . . The [summary] judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law.
22. After the filing of a motion for summary judgment with supporting affidavits and exhibits, the requirements of subsection (f) apply:
(f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party's pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth facts showing that there is a genuine issue in
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dispute. If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party.
23. B & R Development attached to its motion for summary judgment a copy of Certificate of Approval [For] Construction in a Floodway for Application FW-20,047. The license authorizes, under the Flood Control Act and under 310 IAC 6-1 (a rule adopted by the Commission to assist in implementation of the Flood Control Act), a project described as follows:
A new culvert crossing will be placed in Portage to carry Bayou Avenue across the ditch. The new crossing will consist of 16, parallel 54-inc diameter culverts set in headwalls. A stormwater outfall structure will be constructed along the west (left) bank of the stream to provide a drainage outlet for adjacent areas located landward of the floodway. A 15" diameter outfall pipe will be buried to a depth of 8.6' in the floodplain. The 47.5' long pipe will carry stormwater to the creek. An 8" diameter PVC line will be placed beneath the proposed readway, but above the proposed culberts, to provide sanitary sewer service. The line will be placed by the open trench method. It will have 2.8' of cover in the banks and have at least 1.0' of clearance over the culverts. Details of the project are contained in information received electronically at the Division of Water on September 9, 1999 and in plans received September 17, 1999.
The location of the project is as follows:
Approximately 1,250' downstream (northeast) of the Indiana Toll Road (Interstates 80 and 90) and approximately 200' north and 600' west of the intersection of Samuelson Road and Gaylord Avenue at Portage, Portage Township, Porter County. [This location is alternatively described as the] SW1/4, SE1/4, SW1/4, Section 7, T36N, R6W, Portage Quadrangle UTM Coordinates: Downstream = 4602950 North, 487000 East.
24. Attached to B & R Development's motion for summary judgment as Exhibit A was an Environmental Assessment Recommendation from Stephen Jose (December 17, 1999) including additional conditions that, in his opinion, would make the net losses to fish, wildlife, and botanical resources "minimal and reasonable" if the following conditions would be met:
1) Minimize and contain within the project limits inchannel disturbance and the clearing of trees and brush. (ER 14)
2) Do not work in the waterway from March 15 through June 15 and from July 15 through November 30 without the prior written approval of the Division of Fish and Wildlife. (ER 19)
3) Do not cut any trees suitable for Indiana bat roosting (greater than 14 inches in diameter, living or dead, with loose hanging bark) from April 15 through September 15. (ER 19)
4) Use minimum average 6 inch graded riprap stone extended below the normal water level to provide habitat for aquatic organisms in the voids. (ER 27)
5) Plant native hardwood trees along the top of the bank and right-of-way to replace the vegetation destroyed during construction. (ER 28)
6) Revegetate disturbed banks as soon as possible after construction to prevent erosion. (ER 32)
7) Appropriately designed measures for controlling erosion and sediment must be implemented to prevent sediment from entering the stream or leaving the construction site. Maintain these measures until construction is complete and all disturbed areas are stabilized. (ER 53)
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8) Seed and protect all disturbed stream banks and slopes that are 3:1 or steeper with erosion control blankets (following manufacturer's recommendations for selection and installation) or use an appropriate structural armament. Seed and apply mulch on all disturbed areas. (ER 55)
9) Protect the area around and below any concentrated discharge points, down to the waterway's normal flow level, with an appropriate structural armament such as riprap. (ER 57)
Cumulative effects of this project will result in negative impacts on fish, wildlife, and botanical resources. These impacts will be minimized if the above conditions are met.
25. Attached to B & R Development's motion for summary judgment as Exhibit B was an affidavit from Stephen Jose, referencing Exhibit A, that stated as follows:
Comes now the affiant, Stephen Jose, and being duly sworn upon his oath, does now state from his own personal knowledge:
1) That I am Stephen Jose, and am an employee of the Indiana State Department of Natural resources, Division of Fish and Wildlife.
2) That I am qualified as an environmental coordinator, with eleven years of experience.
3) That in my capacity as an environmental biologist, I compiled the environmental assessment and review for the DNR Division of Fish and Wildlife for the projct known as the Robbins Ditch, by applicants B & R Development, in Portage, Indiana. This assessment was made to determine whether the project would result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. In that review, I also considered the cumulative effects of the propoposed project on those resources.
4) In performing the review, Rick Ward, a wildlife biologist for the DNR's Division of Fish and Wildlife, inspected the site, participated in a field meeting, and recommended measures to minimize the prospective impacts on fish, wildlife, and botanical resources.
5) After compiling the review, I prepared a Memorandum, dated December 17, 1999, for this project.
6) These comments were incorporated into the Environmental Assessment and Recommendation, which became part of the conditions of the subject permit [the license].
7) As stated therein, it is my opinion that the losses to fish, wildlife, and botanical resources as a result of this project would be minimal and reasonable if certain conditions were met, as set forth therein.
8) The assessment also states that the cumulative effects of this project would result in negative impacts on fish, wildlife and botanical resources, but that these impacts will be minimized if those conditions are met.
9) In my professional opinion, the damage to fish, wildlife, or botancial resources will be adequately and reasonably minimized through the measures approved in the subject permit [the license], and the recovery of any affected resources is likely to occur within an acceptable period of time if those conditions are met.
26. When the Department makes an initial determination to grant or deny a permit,
and administrative review of the determination is taken, the burden of going forward and the burden of persuasion (sometimes collectively referred to as the "burden of proof") rest with the party seeking to set aside the determination. Indiana Department of Natural Resources
v. United Refuse Co., 598 N.E.2d 603 (Ind. App. 1992); and Natural Resources Commission v. Amax Coal Company, 638 N.E.2d 418 (Ind. 1994).
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Where the Department has made an initial determination to issue a permit under the Flood Control Act, the burden of proof rests with the person seeking to set aside the permit. Shoaff, Mullin, and DeVille v. Ft. Wayne Zoological Society and DNR, 7 Caddnar 157 (2000).
27. The only facts in the record are those presented by B & R Development, and they are fully supportive of granting the license. In the absence of a response by Bieda to the motion for summary judgment, and in the absence of any evidentiary matter in the record to show there is a material issue of fact to dispute the propriety of granting the license, summary judgment must properly be granted in favor of the Respondents and against Bieda.