Content-Type: text/html Cause #: 04-192w.v10.html

CADDNAR


04-192w.v10.html

[CITE: Ford & Guenther v. DNR in re Matthew, 10 CADDNAR 21 (2005)]

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Cause #: 04-192W
Caption: Ford & Guenther v. DNR in re Matthew
Administrative Law Judge: Lucas
Attorneys: Beckwith; Roth
Date: January 20, 2005

FINAL ORDER

The "Petition for Intervention", filed by Elbert E. Matthew, Joyce Matthew, and Kimberly Peerman on December 2, 2004, is denied.

FINDINGS OF FACT

1. On October 19, 2004, William Ford and Robert R. Guenther (the "Claimants") filed their "Petition for Review" of Notice of Violation No. V-4537-FW (the "NOV"). The Department of Natural Resources (the "DNR") issued the NOV against the Claimants asserting they constructed a levee and water control structure in the floodway of the Wabash River near New Harmony, Posey County, Indiana, in violation of IC 14-28-1 (sometimes referred to as the "Flood Control Act"). The Claimants and the DNR are collectively the "Parties".

2. The DNR is the state agency that administers licensure and sanctioning under the Flood Control Act.

3. The Natural Resources Commission (the "Commission") is the "ultimate authority" under IC 4-21.5 (the "Administrative Orders and Procedures Act" or "AOPA") for administrative review of DNR orders for licensure and sanctioning, including those under the Flood Control Act. IC 14-10-2-3. The Commission has adopted rules at 312 IAC 3-1 to assist in its implementation of AOPA.

4. The Commission appoints administrative law judges to assist with the performance of its functions under AOPA. IC 14-10-2-2. Stephen L. Lucas was appointed administrative law judge for the instant proceeding.

5. The administrative law judge scheduled a prehearing conference for November 22, 2004. During the conference, Elbert E. Matthew, Joyce Matthew, and Kimberly Peerman (the "Intervention Petitioners") stated their intention to petition for intervention. The Claimants and the DNR stated they would likely oppose a petition to intervene. A schedule was agreed and then ordered for the filing of the petition to intervene and any response to the petition to intervene.

6. The Intervention Petitioners filed a timely "Petition for Intervention" on December 2, 2004.

7. On December 20, 2004, the Claimants timely filed their "Objection to Petition for Intervention". On the same day, the DNR timely filed the "Department's Objection to Petition for Intervention".

8. The Commission has jurisdiction over the subject matter and over the persons of the Parties and the Intervention Petitioners. The proceeding is ripe for a disposition of the "Petition for Intervention".

9. IC 4-21.5-3-21 provides the circumstances under which a petition for intervention should be granted in a proceeding under AOPA. A petition for intervention may properly be granted if the petition "states facts demonstrating that the petitioner is aggrieved or adversely affected by the order or a statute gives the petitioner a conditional right to intervene in the proceeding." IC 4-21.5-3-21(a)(2)(B).

10. The Intervention Petitioners contend they "are aggrieved by the actions of the" DNR in that the NOV "is incomplete and may cause harm" to the Intervention Petitioners "in its current state".

11. The NOV is in the nature of an "accusation" by the DNR against the Claimants. AOPA does not provide a remedy to a person who is dissatisfied with an agency "decision to issue or not issue a complaint, summons, or similar accusation." IC 4-21.5-2-5(8). With this subdivision, and

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similarly with its enactment of IC 4-21.5-2-5(9) and IC 4-21.5-2-5(10), the General Assembly has excepted from administrative review an agency's exercise of prosecutorial discretion.

12. The Intervention Petitioners would have no remedy under AOPA had the DNR decided not to issue a notice of violation against the Claimants. Similarly, they have no remedy under AOPA upon the contention that the relief sought in NOV is "incomplete". Stated in another way, a party on administrative review cannot cause the Commission to mandate a more severe sanction than that which the DNR seeks in its NOV.

13. The Intervention Petitioners also contend they "are entitled to protect their life and property by intervening in this proceeding under I.C. 14-28-1-4 et seq and the concurrent rights to correct nuisances under I.C. 14-28-1-21 and I.C. 32-30-6-6, respectively, given to the [DNR] and individuals."

14. Legislation may provide individuals with authority to pursue enforcement apart from what is initiated by the regulatory agency. The law governing surface coal mining is an illustration of where this extraordinary opportunity is provided. See IC 14-34-15-13 with rules 312 IAC 25-7-2 and 312 IAC 25-7-3. Neither the Intervention Petitioners nor a reading of IC 14-28-1-4, et seq. identifies a legislative intention, however, that would authorize individuals to enforce or participate in a proceeding to enforce the Flood Control Act.

15. IC 32-30-6 establishes a remedy by which a person may seek relief from a "nuisance". An aggrieved party may bring a private civil action to abate or enjoin a public nuisance if the party demonstrates special and peculiar injury apart from the injury suffered by the public. Water flow blockage to a river or stream affecting the aggrieved party's property can form a sufficient basis for relief. Blair v. Anderson, 570 N.E.2d 1337 (Ind. App. 1991). The remedy is civil, however, and not within the jurisdiction of the Commission. AOPA does not abridge the opportunity of one private person to seek redress from another private person in a civil court but does limit party participation where a state agency is in pursuit of an accusation. Whether IC 32-20-6 may properly offer relief for the grievances claimed by the Intervention Petitioners is a determination for a circuit or superior court, not one for the Commission.

16. The Intervention Petitioners have not established a basis upon which they are entitled to intervention under IC 4-21.5-3-21, and their "Petition for Intervention" must be denied.[FOOTNOTE A.]

FOOTNOTE:

A. The Parties and Intervention Petitioners are reminded, however, that an administrative law judge "may give nonparties an opportunity to present oral or written statements. If the administrative law judge proposes to consider a statement by a nonparty, the judge shall give all parties an opportunity to challenge or rebut it and, on motion of any party, the judge shall require the statement to be given under oath or affirmation." IC 4-21.5-3-25(f). "Statements presented by nonparties in accordance with [IC 4-21.5-3-25] may be received as evidence." IC 4-21.5-3-26(c).