Content-Type: text/html Cause #: 02-102w.v9.html

CADDNAR


[Cite: Fair, et al. v. Noble County Drainage Board and DNR, 9 CADDNAR 82 (2002)]

[VOLUME 9, PAGE 82]

Cause # 02-102W
Caption: Fair, et al. v. Noble County Drainage Board and DNR
Administrative Law Judge: Lucas
Attorneys: pro se; Mowery; Grove
Date: November 7, 2002

FINAL ORDER OF DISMISSAL

The Natural Resources Commission lacks subject matter jurisdiction to provide administrative review of the issuance of License DR-377. This proceeding is remanded to the Department of Natural Resources to reissue its determination of a licensing action with respect to DR-377. The action shall provide for the effectiveness of License DR-377 for two years from the date of the action. The action shall provide notification to Roger Fair, Beth Fair, the Noble County Drainage Board, and any other affected persons. The notification must, consistent with IC 14-26-5, inform affected persons of the opportunity to seek review from the Noble Circuit Court or a Noble Superior Court

FINDINGS

1. The Noble County Drainage Board (the "NCDB") filed an application with the Department of Natural Resources (the "Department") for the construction of an open ditch to replace a collapsed subsurface tile.

2. Originally, the application would have terminated at or in proximity to the shoreline of Dollar Lake in Noble County. The application sought approval from the Department under IC 14-26-5 (the "Ditches and Lakes Act"). Because Dollar Lake is a "public freshwater lake", the original application also sought approval from the Department under IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act"). [Discussions during prehearing conference held on August 21, 2002]

3. Following consultations between the NCDB and the Department, the NCDB determined to reduce the geographic scope of the application so that ditch construction would stop 400 feet from Dollar Lake. This modification obviated the need for the NCDB to obtain a license under the Lakes Preservation Act[FOOTNOTE A]. [Discussions during prehearing conference held on August 21, 2002]

4. On July 3, 2002, the Department issued a license to the NCDB based solely on the Department's authority under the Ditches and Lakes Act. That license was designated License DR-377.

5. License DR-377 includes the following description: "The project consists of removing approximately 400' of an existing 20" diameter tile drain and constructing an open ditch. The project will remove only half of the remaining tile from Dollar Lake to the new Earnhart tile. Spoils will be removed from the wetlands and placed in an upland site. All disturbed areas will be re-seeded. Riprap will be placed around the outlet of the open ditch at the tile. Approximately 1300 cubic yards of material will be removed as a result of the [p]roject. Details of the project are contained in information and plans received at the [Department's] Division of Water on April 25, 2002."

6. License DR-377 identifies the following location: "DOWNSTREAM: Beginning approximately 375' east of the existing outfall tile into Dollar Lake near the midpoint of the east shore and extending upstream (east) approximately 375' near Albion, York Township, Noble County NE1/4,

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Section 33, T34N, R9E, Merriam Quadrangle. UTM Coordinates: Downstream 4580050 North, 626760 East. UPSTREAM: NW1/4, Section 34. UTM Coordinates: Upstream 4580050 North, 627350 East."

7. On July 3, 2002, the Department sent to interested persons a "Notice of Right to Administrative Review" of its action with respect to License DR-377.

8. The notice referenced in Finding 7 provided in pertinent part:

This signed document constitutes the issuance of a permit by the Natural Resources Commission, or its designee[FOOTNOTE B], subject to the conditions and limitations stated on pages entitled "General Conditions" and "Special Conditions".

The permit or any of the conditions or limitations which it contains may be appealed by applying for administrative review. Such review is governed by the Administrative Orders and Procedures Act, IC 4-21.5, and the Department's rules pertaining to adjudicative proceedings, 312 IAC 3-1.

In order to obtain a review, a written petition must be filed with the Division of Hearings within 18 days of the mailing of this notice. The petition should be addressed to [the NRC's division of hearings in] Room W272, 402 West Washington Street, Indianapolis, Indiana 46204.

The petition must contain specific reasons for the appeal and indicate the portion or portions of the permit to which the appeal pertains.

If an appeal is filed, the final agency determination will be made by the Natural Resources Commission following a legal proceeding before an Administrative Law Judge. The Department of Natural Resources will be represented by legal counsel.

9. Consistent with the notice, Roger Fair and Beth Fair (the "Fairs") sought administrative review from the Natural Resources Commission (the "NRC").

10. The NRC caused the appointment of an administrative law judge to conduct appropriate proceedings under IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and 312 IAC 3-1, rules adopted by the NRC to assist in its implementation of AOPA.

11. The administrative law judge scheduled a prehearing conference for August 21, 2002 in Fort Wayne. The conference was conducted as scheduled.

12. During the prehearing conference, a schedule was established for filing any summary motion. As memorialized in a "Report of Prehearing Conference and Notice of Telephone Status Conference" entered on August 23, 2002:

(1) The Department and the NCDB were provided until August 30, 2002 to file any motion to dismiss or motion for summary judgment.
(2) The Fairs were provided until October 31, 2002 to file any cross-motion or response to a motion to dismiss or motion for summary judgment.

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13. The "Respondent Department of Natural Resources' Motion to Dismiss" was timely filed on August 26, 2002. Neither the NCDB nor the Fairs elected to make any filing.

14. The Department's motion contends IC 14-26-5-10 provides that a person who is adversely affected by a decision of the Department may appeal the decision only by filing a complaint in the circuit or superior court of the county in which the lake or part of the lake is situated.

15. The general procedure for review of a licensure determination by the Department under the Ditches and Lakes Act is set forth under IC 14-26-5-10(a). The subsection specifies a person adversely affected by a decision of the Department "may appeal the decision by filing a complaint in the circuit or superior court of the county in which the lake or a part of the lake is situated.[FOOTNOTE C]"

16. The requisite contents of a complaint are described in IC 14-26-5-11. In general terms, the complaint must state the interest of the person filing the appeal, set forth the plans and specifications of the proposed work, state the action by the Department in granting or withholding approval, and state the objections and causes of appeal from the Department's licensure decision.

17. As provided in IC 14-26-5-12, the complaint must be filed in the court within 30 days from the date of the Department's decision by causing a summons to be issued and served upon the Department's director as summons are served in other civil cases.

18. In addition, IC 14-26-5-14 specifies that the court on review hears the matter de novo. This standard is at odds with AOPA where the NRC would consider the matter de novo but the court on judicial review is prohibited from doing so. Indiana Department of Natural Resources v. United Refuse Co., 615 N.E.2d 100 (Ind. 1993) and Roberts d/b/a Oil and Associates v. DNR and Black Beauty Co., 7 Caddnar 206 (1999) for review by the NRC is contrasted with IC 4-21.5-5-11 for judicial review.

19. The legislative intention is clear, and the Department's argument is persuasive. Although the Ditches and Lakes Act may be an anachronism, the procedural mechanism is wholly outside the structure anticipated by AOPA. The NRC is without authority to provide administrative review for licensure decisions under the Ditches and Lakes Act under AOPA and 312 IAC 3-1.

20. The "Notice of Right to Review" issued by the Department on July 3, 2002 is fatally flawed. The notice misdirects interested persons to seek review under AOPA, although the unambiguous statutory scheme is instead for review by a circuit or superior court in the county where the lake is located. Here review must be taken directly to the Noble Circuit Court or a Noble Superior Court. With the misinformation provided in the notice, the Department has failed to effectively render a final decision with respect to the issuance of License DR-377.

21. The proceeding must properly be remanded to the Department to reissue a licensing action accompanied by a corrected notification that is consistent with the procedural scheme established by the Indiana General Assembly in the Ditches and Lakes Act. The license shall be valid for two years from the date of reissuance.

FOOTNOTES

A. Modification of the geographic scope of the NCDB's project is critical to entry of this final order of dismissal. The Natural Resources Commission has subject matter jurisdiction to provide administrative review of licensure decisions under the Lakes

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Preservation Act. Possessed of that authority, the Natural Resources Commission could review related activities under the Ditches and Lakes Act based upon the doctrine of primary jurisdiction. The dismissal results only because the Ditches and Lakes Act is the sole basis for Department action and because the Ditches and Lakes Act has a unique procedural posture on review.

B. The notice misidentifies the NRC or its designee as the licensing authority for the Ditches and Lakes Act. As provided in IC 14-11-3-1(b), the director of the Department is the agency licensing authority. As provided in IC 14-11-3-1(c), a "designee of the director may issue licenses. A designee of the director must be a full-time employee" of the Department. The NRC cannot qualify under either IC 14-11-3-1(b) or (c) as the licensing authority. Pursuant to IC 14-10-2-3, the NRC is generally made the "ultimate authority" for the Department under IC 4-21.5. The latter statutory article, commonly known as "AOPA", is discussed later in this order. Under the statutory structure, the Department's director or designee makes licensing determinations. The NRC may provide administrative review of those determinations, but it does not make them. This misidentification is not fatal to the notice, but it contributes to the malaise that accompanies consideration of the notice. The misidentification should be corrected when a license and reformed notification are issued as directed by this order.

C. An exception is provided in IC 14-26-5-10(b) for work petitioned in a pending drainage proceeding. The exception has no application to review of License DR-377.