Content-Type: text/html 02-093w.v9.html

CADDNAR


[CITE: Dornte, et al. v. Becker, et al. and IDNR, 9 CADDNAR 74 (2002)]

[VOLUME 9, Page 74]

Cause #: 02-093W
Caption: Dornte, et al. v. Becker, et al. and IDNR
Administrative Law Judge: Lucas
Attorneys: pro se (Dornte); pro se(Becker); Baird (DNR)
Date: August 9, 2002

FINAL ORDER OF DISMISSAL

The parties having had an opportunity to brief the issues, and the Administrative Law Judge being duly advised, a final order of dismissal is entered. In addition, the prehearing conference, previously scheduled for August 21, 2002 in Fort Wayne, is canceled.

The reasons for the order of dismissal are stated in the findings and conclusions set forth below. A person who wishes to seek judicial review of this final order must file a petition for judicial review in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.

FINDINGS OF FACT AND CONCLUSIONS

1. On or about May 21, 2002 the department of natural resources (the "Department") approved Certificate of Approval PL-19,121 (the "license") in favor of Lynette Becker and Jerry Becker (the "Beckers").

2. The license authorized refacing of an existing concrete seawall on the Beckers' property along the shoreline of Lake James in Steuben County. More particularly, the license authorized refacing with a layer of concrete across 100 feet of the Beckers' 260 feet of frontage. The refacing is to be keyed to the lakeward face of the seawall. Also, a new ten-foot-by-eight foot concrete boat ramp would be constructed along the frontage. The new ramp would be prohibited from extending lakeward of the shoreline.

3. Lake James is a "public freshwater lake" as the term is defined at IC 14-26-2-3.

4. Lake James is subject to the Department's jurisdiction under IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act") and rules adopted under 312 IAC 11 to assist the Department in its administration of the Lakes Preservation Act.

5. The license was issued under the Lakes Preservation Act on May 22, 2002.

6. By certified mail on June 19, 2002, Carole Dornte and Allen Dornte (the Dorntes) filed a petition with the Natural Resources Commission (the "NRC") seeking administrative review of the license.

7. Administrative reviews of determinations by the Department are governed by IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The NRC is the "ultimate authority" for the Department under AOPA. The NRC has adopted rules at 312 IAC 3-1 to assist in its implementation of AOPA.

8. On July 25, 2002, the Department filed its "Motion to Dismiss" on the basis the Dorntes' petition for administrative review was after the "deadline" for filing set by AOPA. The Department urges, "Pursuant to IC 4-21.5-3-7(3)(A) and IC 4-21.5-3-2(a) [and] (e) the deadline for filing a petition for administrative review in this matter was June 9, 2002."

9. On July 29, 2002, the Administrative Law Judge made an "Entry

[VOLUME 9, PAGE 75]

Setting Schedule to Respond to 'Motion to Dismiss' Filed by the Department of Natural Resources" in which the Dorntes were provided until August 12, 2002 to respond.

10. On August 12, 2002, the Dorntes filed a written response. They did not contest the timing described by the Department but urged that "Being late with an appeal has nothing to do with the issueing [sic.] of this permit. It should be based on the possible damage the altering of the seawall would have on the seawall on our property which adjoins the Beckers."

11. A petition for administrative review of the Department's issuance of a license under the Lakes Preservation Act must ordinarily be filed within 18 days after the permit is mailed. IC 4-21.5-3-7(a)(3) and IC 4-21.5-3-2. South Central Community Mental Health Centers, Inc. v. DNR and Jones, 7 Caddnar 114 (1996). Buckley v. DNR and Lake County Highway Department, 8 Caddnar 20 (1997).

12. Where a request for administrative review is not timely under the AOPA, the NRC lacks subject-matter jurisdiction to provide review. Mayer v. Lucas, Holcomb & Mead and DNR, 8 Caddnar 97 (1999). By setting a timeframe within which administrative review must be sought, the Indiana General Assembly helps assure that administrative dockets will not be crowded with stale administrative reviews. Perhaps more importantly, persons who are the beneficiaries of a license can move forward, after elapse of the time allowed for taking review, with confidence their license is valid and work may proceed without interruption.

13. AOPA provides that an affected person must take administrative review with an agency's ultimate authority within 15 days of a determination by the agency that a license be issued or denied. IC 4-21.5-3-7(a)(3). Three additional days are provided if service of the order was by United States mail. IC 4-21.5-2(e).

14. Pursuant to AOPA, the Dorntes were required to file their petition for administrative review by June 9, 2002, but they did not file their petition until June 19, 2002.

15. Because the Dorntes did not file their petition for administrative review in a timely manner, the NRC lacks subject-matter jurisdiction to consider the petition. The Department's "Motion to Dismiss" must properly be granted.