[CITE: Hoosier Environmental Council v. DNR and IP&L Company, 10
CADDNAR 252 (2006)]
[VOLUME 10, PAGE 252]
Cause #: 05-019W
Caption: Hoosier Environmental Council v. DNR and IP&L Company
Administrative Law Judge: Jensen
Attorneys: Sutherlin; Boyko;
Czajka, Kelly
Date: June 26, 2006
FINAL ORDER ON SUMMARY JUDGMENT
1. HEC is without standing to initiate this
proceeding.
2. The instant proceeding is hereby
dismissed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
STATEMENT OF THE CASE:
1.
Indianapolis
Power and Light (IPL) was issued a
Certificate of Approval for Construction in a Floodway (“Permit FW-22, 843) by the Department of Natural Resources (“DNR”) on January 10, 2005.
2.
The Claimant,
Hoosier Environmental Council (“HEC”),
filed its Petition for Review of the Department’s issuance of Permit FW-22, 843
on January 28, 2005.
3.
HEC is a
non-profit organization with individual members and member groups located
throughout the State of
4.
HEC’s Petition for Review sets forth the premise that
certain of its members “are personally aggrieved and adversely affected” by the
issuance of Permit FW-22, 843 to IPL because its members who recreate on and
near the White River upstream and downstream of IPL’s project site will be
unable to enjoy the visual and aesthetic pleasure of fish, wildlife and
botanical resources that will be unreasonably detrimentally effected by the
project and that its members will be adversely affected by flooding that will
result from the project.
5.
HEC’s Petition for Review does not however, expressly
identify any of the individual members or member groups who are so aggrieved or
adversely affected.
6.
IPL filed its
petition to intervene in the instant proceeding, which petition was granted,
without objection, at the prehearing conference on March 10, 2005.
7.
At the prehearing
conference the DNR and IPL were afforded until May 1, 2005 to file responsive
pleadings and dispositive motions.
[VOL. 10, PAGE 253]
8.
On April 28,
2005, DNR filed its Motion to Dismiss HEC’s Petition for Review on the grounds
that it did not meet the requisite standing requirements of IC 4-21.5-3-7 and
failed to state a claim upon which relief could be granted under Indiana Trial
Rule 12(B)(6).
9.
IPL joined in the
DNR’s Motion to Dismiss on May 2, 2005.
10.
On May 2, 2005
HEC was afforded until May 19, 2005 to respond to the Respondents’ Motions to
Dismiss.
11.
On May 12, 2005,
HEC filed its “Motion for Leave to File Verified Amended Petition for Review in
Response to Motion to Dismiss” and “Hoosier Environmental Council’s Verified
Amended Petition for Review.” Therein,
HEC reiterated each allegation contained within its Petition for Review and
added the allegation that HEC member, Chris Al Berning, Jr. (“Berning”), was personally aggrieved
and adversely affected by the DNR’s issuance of Permit FW-22, 843 to IPL.
12.
HEC’s filing of its “Motion for Leave to File Verified
Amended Petition for Review in Response to Motion to Dismiss” prompted the DNR
and IPL to seek time within which to file objections to that motion along with
reply briefs relating to their previously filed Motions to Dismiss HEC’s
Petition for Review. Report of Status
Conference, May 24, 2005.
13.
Following the
grant of unopposed motions for extension of time for the Respondents to file
their objections and/or replies, IPL filed “IPL’s Opposition to HEC’s Motion
for Leave to Amend Petition” on August 22, 2005.
14.
Also on August
22, 2005, the DNR filed “Respondent Indiana Department of Natural Resources’
Reply and Objection to Claimant’s Motion for Leave to File Verified Amended
Petition for Review in Response to Motion to Dismiss.”
15.
HEC was offered
and availed itself of the opportunity to Respond to DNR’s and IPL’s Objections
on September 22, 2005.
16.
On September 28,
2005 in an “Order on Respondents’ Objections to Claimant’s Motion for Leave to
Amend Petition for Review and Motions to Dismiss and Notice of Status
Conference,” which is incorporated by reference and attached as Exhibit A,
HEC’s motion for leave to file an amended petition for review was denied.
Similarly, the DNR’s and IPL’s Motions to Dismiss were denied. In addition, it was determined that Mr.
Berning’s individual challenge to Permit PL-22, 843 was time-barred.
17.
The September 28,
2005 Order expressly did not determine the issue of HEC’s standing
to initiate and prosecute this matter with finality. Instead, at HEC’s invitation, HEC’s standing remained
a contested issue in this proceeding subject to future motions for summary
judgment.
18.
At a subsequent status conference the parties
agreed that discovery related to the substance of HEC’s Petition for Review
should be delayed while the issue of HEC’s standing was explored and determined. A schedule was developed by which all
discovery associated with HEC’s standing would be completed by January 31, 2006
and the Respondents were allowed until March 2, 2006 to file additional Motions
for Summary Judgment relating to HEC’s standing.
[VOL. 10, PAGE 254]
19.
Following a
granted extension of time to complete discovery and file summary judgment
motions relating to HEC’s standing, IPL timely filed its Motion for Summary
Judgment on April 17, 2006.
20.
May 17, 2006, marked
the deadline by which parties were authorized to file briefs in response to
IPL’s Motion for Summary Judgment.
21.
The DNR filed a
response in concurrence with IPL’s Motion for Summary Judgment while HEC failed
to file any response brief or provide any evidentiary material.
22.
Administrative
proceedings before the Commission are procedurally
controlled by the Administrative Orders and Procedures Act (“AOPA”), and rules adopted by the Commission for the
implementation of AOPA in proceedings before it. I.C. 4-21.5-3 and 312 IAC 3-1.
23.
For purposes of
this proceeding, I.C. 4-21.5-3-7 specifies that to qualify for review, a person
must demonstrate that he/she is a person to whom the order is specifically
directed, that he/she is aggrieved or adversely affected by the order or that he/she
is entitled to review under any law.
24.
HEC’s Petition for Review does not allege that it is the
entity to whom the order is specifically directed or that it is entitled to
seek review under any law.
25.
HEC does however,
seek administrative review on the basis that it is an environmental protection
and natural resources preservation organization whose members are personally
aggrieved or adversely affected by Permit PL-22,843.
26.
HEC’s Petition for Review, seeks to challenge the DNR’s
issuance of a permit pursuant to I.C. 14-28 over which the Natural Resources
Commission (“Commission”) is the
ultimate authority. 312 IAC 3-1-2.
27.
HEC has
sufficiently established the Commission’s jurisdiction over the subject matter
of this proceeding.
28.
Summary judgment
is contemplated by AOPA at IC 4-21.5-3-23 which states , in pertinent part,
that
(b) The judgment sought
shall be rendered immediately if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits and
testimony, if any, show that a genuine issue as to any material fact does not
exist and the moving party is entitled to a judgment as a matter of law.
…Summary judgment may not be granted as a matter of course because the opposing
party fails to offer opposing affidavits or evidence, but the administrative
law judge shall make a determination from the affidavits and testimony offered
upon the matters placed in issue by the pleadings or evidence.
…
(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 specific facts showing that there is a genuine issue in
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.
[VOL. 10, PAGE 255]
FINDINGS OF FACT:
29.
It is not
disputed that HEC is a non-profit membership organization interested in
environmental protection and natural resources preservation.
30.
As it relates to
HEC’s standing, HEC alleges in its Petition for Review that
HEC members are
personally aggrieved and adversely affected by the DNR decision and the
construction in a floodway project approved by this decision, in that:
a. HEC members recreate on
and near the
b. HEC members live along
and nearby the
c. HEC has maintained an
active interest in protecting the aquatic, wildlife and botanical resources of
the
d. HEC has a
well-established record of involvement in natural resources issues in
31.
HEC’s Petition
for Review does not name or otherwise attempt to identify the individual
members who will allegedly be personally aggrieved or adversely affected by the
DNR’s issuance of Permit PL-22, 843 to IPL.
32.
At no time has
HEC set forth the identity of any individual member or member organization that
it alleges will be aggrieved or adversely affected by the DNR’s issuance of
Permit PL-22, 843 to IPL.
33.
HEC previously
attempted through an amended Petition for Review to identify Berning as its
member who is personally aggrieved and adversely affected by the issuance of
Permit PL-22, 843, however this attempt failed when HEC was prohibited from
amending its petition for the reason that Berning was not a HEC member at the
time the DNR issued Permit PL-22,843 to IPL or on January 28, 2005, the date
HEC filed its Petition for Review. IPL’s Exhibit #1. Also see incorporated
“Order on Respondents’ Objections to Claimant’s Motion for Leave to Amend
Petition for Review and Motions to Dismiss and Notice of Status Conference”
issued September 28, 2005.
34.
IPL’s attempts to identify aggrieved or adversely affected HEC
members through discovery have also failed.
IPLs Exhibit #2.
[VOL. 10, PAGE 256]
35.
HEC has further
failed to make any effort to identify its aggrieved and adversely affected
members in response to IPL’s Motion for Summary Judgment filed to contest HEC’s
standing in this proceeding.
CONCLUSIONS OF LAW:
36.
To be “aggrieved
or adversely affected” under I.C.
4-21.5-3-7, a person “must have suffered or be likely to suffer in the
immediate future harm to a legal interest, be it a pecuniary, property or
personal interest. Huffman v.
37.
It is
insufficient under I.C. 4-21.5-3-7 for a person or organization to initiate a
proceeding for administrative review on the basis of a “generalized concern as
a member of the public.” Id at 817.
38.
HEC does not allege within its Petition for
Review that it is, in and of itself, aggrieved or adversely affected by the
issuance of Permit FW 22, 843 except as a general member of the public
interested in environmental protection and natural resources preservation.
39.
HEC’s generalized concern about the impact of Permit PL-22,
843 is insufficient to establish its standing to initiate or prosecute this
proceeding.
40.
A membership
association, such as HEC, may however possess associational standing if certain
criteria are successfully met. Save the Valley v. Indiana-Kentucky
Electric Corporation, 820 N.E.2d 677, (
41.
HEC must meet the
criteria set forth in the Hunt Test
to succeed in claiming associational standing.
That test includes determinations that “(a) its
members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose, and
(c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Save
the Valley, supra, citing Hunt at 344.
42.
HEC’s Petition for Review clearly establishes its intention
to obtain associational standing through its aggrieved and adversely affected
members.
43.
HEC’s failure to identify those aggrieved and adversely affected
members results in the absolute impossibility of
establishing that those members would possess standing in their own right to
initiate this proceeding. Similarly, it
is impossible to ascertain that the interests of those members are consistent
with HEC’s organizational purpose or that the individual participation of one
or more of those members is unnecessary.
44.
While HEC would
have been well advised to identify the individual members upon which its
associational standing was based and provide the grounds upon which those
individual members claimed to be aggrieved or adversely affected, HEC’s
Petition for Review nonetheless met the bare minimum requirement of placing the
Respondents on notice. As such HEC
initially avoided dismissal of this proceeding on the Motions filed by the DNR
and IPL. Huffman, supra, Juday Creek, et al v. Ralph Williams and
Associates and DNR, 8 CADDNAR 90, 93 (1998), Bieda v. B. & R.
Development and DNR, 9 CADDNAR 1.
[VOL. 10, PAGE 257]
45.
However, IPL has
supported its motion for summary judgment with evidentiary material indicating
that HEC’s membership does not include individual members who are able to
pursue this proceeding in their own right and HEC may not at this juncture rely
upon the allegations contained within its Petition for Review. IC
4-21.5-3-23.
46.
Instead, HEC is
obligated to come forward with evidentiary material or affidavits to show that
there exists a genuine issue of material fact.
47.
Following IPL’s filing of its Motion for Summary Judgment, HEC’s failure
to come forward with evidentiary material or affidavits identifying those
members for whom HEC is acting in a representational capacity, leads to one
undisputed inference. The HEC membership
does not include any individual member or member group who possesses standing
in their own right to initiate or prosecute the
instant proceeding.
48.
HEC’s failure to identify any individual
who possesses the ability to initiate this proceeding in their own right, makes
impossible a determination that HEC’s interests are germane to that
individual’s interests or a determination that the individual member is not a
required participant in the proceeding.
49.
Consequently, HEC
has failed to meet all three components of the Hunt Test. Save the Valley, supra and Hunt,
supra.
50.
Thus, HEC cannot
support its claimed associational standing.