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Cause #: 04-090W
Caption: Gosset v. Town of Albany and DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Gossett); Brooke (Albany); Roth (DNR)
Date: June 25, 2004
FINAL ORDER OF DISMISSAL
The parties having had a full opportunity to brief the issues, and the Administrative Law Judge being duly advised, a final order of dismissal is entered. The reasons for the dismissal are stated more particularly in the findings set forth below. A person who wishes to seek judicial review 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
1. The Town of Albany forwarded correspondence that was received by the Department of Natural Resources (the "Department") on February 12, 2004 concerning two proposed lagoons associated with an existing wastewater treatment plant located along an unnamed tributary to the Mississinewa River.
2. The Town of Albany originally sought a license for construction in a floodway with respect to the project as required under IC 14-28-1 (sometimes referred to as the "Flood Control Act") and rules adopted by the Natural Resources Commission (the "Commission") at 312 IAC 10 to assist in the administration of the Flood Control Act and IC 14-28-3.
3. Subsequently, the Town of Albany relocated the project north 538 feet and east 51 feet from the original proposed location. The relocated project location is the "subject land".
4. Generally, the areas regulated under the Flood Control Act and IC 14-28-3 are the flood plains along waterways having a drainage area of at least one (1) square mile. 312 IAC 10-1-2(c). A construction activity within the "floodway" portion of a flood plain may require a license from the Department under IC 14-28-1-22.
5. On March 29, 2004, James Hebenstreit, Assistant Director of the Department's Division of Water, wrote to the Town of Albany, that the Division of Water determined the subject land "is located outside of the floodway of the Mississinewa River and topographic mapping indicates that the drainage area along the" unnamed tributary of the "Mississinewa River is less than 1 square mile. Approval from the Department...under IC 14-28-1 is not required for construction, excavation or filling" at the subject land.
6. The correspondence described in Finding 5 is a "status determination" under IC 4-21.5-3-5(a)(5). A status determination may properly be subjected to the Commission's administrative review under IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and 312 IAC 3-1. IC 14-10-2-3.
7. On April 13, 2004, Linda Gossett ("Gossett") made a timely request to the Commission for administrative review of the status determination and sought a stay from of its effectiveness.
8. On April 20, 2004, the Commission's Administrative Law Judge ordered that Gossett be granted a temporary stay. The order further specified the stay would terminate unless Gossett provided, by May 14, 2004, an affidavit or affirmation from a qualified professional to demonstrate "the subject land is
located in a floodway and subject to regulatory authority of the Department...under IC 14-28-1 and 312 IAC 10."
9. On May 7, 2004, the Department filed a "Motion to Dismiss" Gossett's request for administrative review on the basis the subject land was outside the Department's geographic authority under the Flood Control Act and that no order was issued that is subject to review under AOPA.
10. As memorialized in a "Notice of Rescheduled Prehearing Conference
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and Order Terminating Temporary Stay" entered on May 12, 2004, Gossett indicated she had no objection to termination of the stay. On this basis, the Administrative Law Judge terminated the stay.
11. A prehearing conference was conducted on May 26, 2004. Whether the subject land was within or outside the floodway was identified as a threshold issue. The parties were provided until June 21, 2004 to supplement the record. The Administrative Law Judge indicated: "If there is no issue of material dispute as to the location of the [subject land] being within a floodway or outside a floodway, a final disposition will be made by the Administrative Law Judge. The disposition will be made as soon as practicable after June 21, 2004." Report of Prehearing Conference (May 27, 2004).
12. On June 24, 2004, the Department supplemented its Motion to Dismiss. Kelly Hall, an Environmental Scientist with the Department's Division of Water, indicated she reviewed the file and determined the subject land "is outside of the Mississinewa River's floodway, and in a drainage area of an unnamed tributary to the Mississinewa River, with said drainage area being less than one square mile.... Based upon my review, I concur with the information in the letter [described in Finding 5], and in particular, that the [subject land] does not fall under the regulatory programs administered by the [Department's] Division of Water." Affidavit of Kelly Hall (June 24, 2004).
13. Gossett has offered no affidavit, material fact, or brief in opposition to the Department's Motion to Dismiss.
14. An Indiana state administrative agency has only those powers conferred on it by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995).
15. From the matters contained in the Department's status determination of March 29, 2004, and from the Kelly Hall affidavit of June 24, 2004, it appears there is no material dispute.
16. The subject land is outside any floodway and outside the Department's regulatory authority. The Department has no power under the Flood Control Act to regulate the subject land. The Department lacks subject-matter jurisdiction under the Flood Control Act to regulate the subject land.
17. The Department has submitted an affidavit and correspondence outside the pleadings to support its Motion to Dismiss. Generally, these submissions anticipate a motion for summary judgment. Connecticut Indem. Co. v. Bowman, 652 N.E.2d 880 (Ind. App. 1995). This result does not follow where the motions seek dismissal based upon
subject-matter jurisdiction. Foshee v. Shoney's, Inc., 637 N.E.2d 1277, 1280 (Ind. 1994) cited in Hanlon v. DNR and Hammond Port Authority, 8 Caddnar 102 (1998).
18. The Department's Motion to Dismiss must properly be granted, and Gossett's request for administrative review must properly be dismissed because the Commission lacks subject-matter jurisdiction to grant relief under the Flood Control Act at the subject land.