CADDNAR

[CITE: Wall v. Department of Natural Resources, 10 CADDNAR 101 (2005)]

FINAL ORDER:

1. The determination issued by the Department to Wall on February 1, 2005 providing notice of its intention to exercise the State's police power to enter upon Wall's real property for the purpose of eliminating the highwall related to Project 367 is hereby vacated.

2. Consideration of Project 367 is hereby remanded to the Department with instructions to fully and completely consider, consistent with this final order, the extent to which its stated goal, the protection of vehicular traffic on County Road 300 North from the safety hazard created by the highwall located on Wall's real property, can be accomplished by the following:
a) Repairing the culverts;
b) Setting the guardrails a greater distance from the northern edge of County Road 300 North; and,
c) Upgrading the guardrails to INDOT standards.

3. Throughout such reconsideration and determination, all notice requirements, including those prescribed by I.C. 14-34-19, relating to Project 367 shall once again be afforded.

4. This order is issued without prejudice as to any future determination of the Department with respect to Project 367.

STATEMENT OF THE CASE:

1. On February 8, 2005, Claimant, Kent Wall ("Wall"), filed correspondence with the Natural Resources Commission ("Commission") seeking administrative review of a determination made by the Department of Natural Resources ("Department") with respect to an Abandoned Mine Land Reclamation Project, identified as Site # 367 ("Project 367").

2. Wall was notified of the Department's determination in a letter dated February 1, 2005, written by Department representative Edward B. Kirby, Realty Coordinator for the Department's Restoration Program, which was incorporated into Wall's February 8, 2005 correspondence.

3. The Department determined that Project 367 is a project "to eliminate a safety concern along Green County Road 300 North in Stockton Township" a portion of which would impact Wall's property. The Department acknowledged its understanding that Wall had refused to sign a "Right of Entry" allowing the Department entrance upon his property for the purpose of completing Project 367.

4. The Department proceeded to advise Wall of its intention to exercise its police power, authorized by State and federal law, to enter upon Wall's property to "correct mine related safety issues."

5. On March 8, 2005 a prehearing conference was held at the Mayor's Office in Linton, Indiana. At that time, Wall was ordered to file a more definite statement identifying all issues upon which his request for review was based. The Department was similarly ordered to file an answer and statement of affirmative defenses. The parties were advised that the hearing in this proceeding would be limited to matters identified within these filings.

6. Wall's more definite statement, which claimed Project 367 would result in a loss of residential privacy, the loss of a sound barrier for his

[VOLUME 10, PAGE 102]

residence, loss of wildlife habitat near his residence and the loss of personal property including the loss of present and future timber value, was filed on April 13, 2005.

7. The Department's answer and statement of affirmative defenses was filed on April 28, 2005.

8. Discovery between the parties was completed without dispute.

9. A final status conference was held on May 16, 2005. At the final status conference Wall's claims were summarized as follows:

- Project 367 will not serve to protect the public from the adverse effects of mining because no safety hazard exists.

- Project 367, as planned by the Department, will result in a taking of Wall's property relating to timber value and diminution of the aesthetic value and privacy of his residence.

- The goals of Project 367 can be accomplished through alternative means with decreased negative impact upon Wall's real property.

10. The Department, at the final status conference, maintained that Project 367, as planned, was necessary to protect the public safety as authorized at I.C. 14-34-19-3(2) or one for the enhancement of public utilities as authorized by I.C. 14-34-19-3(5). The Department indicated its intention to limit evidence at the hearing to those issues and three (3) of its previously identified affirmative defenses relating to the following:

- Project 367 constitutes a proper exercise of the State's police power.

- Sovereign Immunity.

- Set Off.

11. An administrative hearing was held on May 19, 2005 at the Department's, Division of Reclamation Field Office near Jasonville, Indiana.

12. At the hearing, Wall proceeded pro se and counsel, Ihor Boyko, represented the Department.

13. At the request of Department's counsel, the administrative law judge explained that pursuant to Wall's previously granted request, a site view would be conducted following the conclusion of the hearing. The parties were advised that the site view was not evidence in the proceeding but was intended to allow the administrative law judge to place properly presented evidence in context. Due to the overall land mass involved in Project 367, the parties were invited to accompany the administrative law judge to ensure that the proper location was viewed.

14. The hearing began at approximately 9:00 a.m. and ended at approximately 10:45 a.m.

15. Witnesses were individually sworn before providing testimony.

16. Wall presented his case in chief consisting of his own testimony, provided in narrative form, and the submission of six (6) exhibits, which were admitted without objection.

17. The Department provided its defense, which consisted of testimony from five (5) witnesses and the submission of eleven (11) exhibits, which were admitted without objection.

18. The parties cross-examined opposing party witnesses and were provided the opportunity for redirect examination. 19. Wall, on rebuttal, provided additional narrative testimony to conclude the hearing.

20. No party objected to opposing party's presentment of hearsay evidence and the Department did not make a motion for directed verdict. 21. Following adjournment of the hearing, both parties accompanied the administrative law judge to the site of Project 367 and aided in identifying the project boundaries before departing to allow the site view to be conducted by the administrative law judge, alone.

LEGAL AUTHORITY AND COMMISSION JURISDICTION:

[VOLUME 10, PAGE 103]

1. The federal Abandoned Mine Reclamation Fund, administered by the Office of Surface Mining Reclamation and Enforcement ("OSM"), under the authority of Title IV of the Surface Mining and Control Reclamation Act of 1977 ("SMCRA"), created monetary resources for, in part, the reclamation of abandoned mine land and water resources affected by past mining or mine related activity. 30 U.S.C 1231.

2. States, through the federal Abandoned Mine Reclamation Fund, receive grants for the purpose of carrying out abandoned mine land and water reclamation projects pursuant to approved State programs. Id.

3. State programs, approved in accordance with 30 U.S.C. 1235, include the abandoned mine land reclamation program of the State of Indiana administered by the Department pursuant to I.C. 14-34-19. 30 CFR 914

4. Project 367 is an abandoned mine land restoration project financed by the Department through its program approved by OSM, which specifies that such monetary resources "may only be used to effect the restoration of abandoned mine land" under I.C. 14-34-19. I.C. 14-34-19-1.

5. Eligibility for expenditures of funds authorized by I.C. 14-34-19-1 are limited to land and water areas mined or affected by mining activity occurring before August 3, 1977 that have been abandoned or inadequately reclaimed and for which no continuing reclamation responsibility exists. I.C. 14-34-19-2.

6. Sites eligible for funding are categorized as to priority in the order set forth at I.C. 14-34-19-3. A site being reclaimed "for the protection of public health, safety, and general welfare from adverse effects of coal mining practices" constitutes a priority 2 project, while reclamation activities for "the protection, repair, replacement, construction, or enhancement of public facilities such as ... roads...adversely effected by coal mining practices" constitutes a priority 5 project. I.C. 14-34-19-3(2) and (5), respectively.

7. Upon a determination by the director that past coal mining practices have adversely affected land and water resources to a degree that, in the public interest, restoration, reclamation, abatement, control, or prevention action should be taken, the Department is authorized to exercise the State's police power for the protection of public health, safety, and general welfare to enter upon property and to take all action necessary or expedient. I.C. 14-34-19-4.

8. The director's exercise of the State's police power must be preceded by a determination, as applicable herein, that the owner of land adversely affected will not give permission for the entry and by providing notice by mail as well as by publication one (1) time in a newspaper of general circulation in the county where the affected land lies. I.C. 14-34-19-4(c)(2)(A & B).

9. Under Title IV of SMCRA, the prioritization of abandoned mine land reclamation projects as well as the notice requirements related to an exercise of police power to enter upon privately owned land to conduct such remediation is nearly identical to those provisions of I.C. 14-34-19-3 and I.C. 14-34-19-4 previously discussed. See 30 U.S.C. 1233 and 1243.

10. OSM published the "Revised Guidelines for Abandoned Mine Land Reclamation Programs and Projects" to "provide general guidance to States... in the administration of reclamation activities carried out under programs authorized by Title IV of SMCRA." 61 FR 4310-05-M, 1996.

11. The OSM Guidelines, similar to I.C. 14-34-19-3(2), state that "[e]ntry by use of police power is restricted to those reclamation projects that will protect the public health, safety, and general welfare...and should be undertaken only after due care and deliberation has exhausted all possibilities of obtaining written consents." OSM Guidelines (B)(1)(b).

12. An exercise of police power is "universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance." Lawton v. Steele, 152 U.S. 133 (1894).

13. "The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the

[VOLUME 10, PAGE 104]

general welfare. 'It has long been recognized that property rights are not absolute and that persons hold their property 'subject to valid police regulation, made, and to be made, for the health and comfort of the people." Commonwealth v. Barbes & Tucker Company, 371 A.2d 461, (Supreme Crt Pa., 1977) citing DePaul v. Kauffman, 272 A.2d 500, 504, (1971). See also Department of Financial Institutions v. Holt, 108 N.E.2d 629, (1952).

14. "To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." Lawton, supra at 137. See also Holt, supra; Department of Natural Resources v. Indiana Coal Council, Inc., 542 N.E.2d 1000, (1989); Clem v. Christole, Inc., 548 N.E.2d 1180, (Ind. App. 4 Dist., 1990), affirmed on other grounds 582 N.E.2d 780, (Ind. 1991).

15. "Property is more than the physical object a person owns. It includes the right to acquire, possess, use and dispose of it without control or diminution. Therefore, any law restricting such rights must not be arbitrary, unreasonable, or beyond the necessities of the case." Clem v. Christole, Inc., supra; Holt, supra.

16. A "taking" occurs when the regulatory action taken prevents all reasonable use of the property, DPF, Inc. v. Board of Commissioners, 622 N.E.2d 1332, (Ind. App. 5 Dist., 1993) and the question of reasonableness is a fact sensitive inquiry which includes consideration of "the extent of any interference with the present use of the land." Id, citing .

17. "While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Indiana Coal Council, supra at 1002, citing Pennsylvania Coal Company v. Mahon, 260 U.S. 393, (1922). What is a permissible regulation of property and what constitutes a regulatory action that has extended beyond the necessity of the particular matter "often rests on 'ad hoc factual inquiries' involving the facts and circumstances of each case." Indiana Coal Council, supra at 1002, citing Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, (1987).

18. Consequently, it must first be determined that the exercise of police power will advance the public health, safety, and general welfare and secondly it must be considered whether the exercise of police power in the particular situation regulates to an extent greater than necessary to achieve the objectives. Indiana Coal Council, supra; Lawton, supra; Holt, supra.

19. The second prong of the test invokes consideration of alternative means capable of achieving the objectives to be advanced by the exercise of police power. Holt, supra; Beltrami Brothers Real Estate v. Commonwealth of Pennsylvania, Department of Environmental Protection, 1998 WL 682997 (Pa. Env. Hrg. Bd.) and Barnes and Tucker Company, supra.

20. This proceeding is governed procedurally by I.C. 4-21.5 et seq., which is commonly referred to as the Administrative Orders and Procedures Act ("AOPA"). The Commission has also adopted administrative rules, found at 312 IAC 3-1 et seq. to aid in its administration of AOPA. Those administrative rules are also applicable to this proceeding.

21. Pursuant to 312 IAC 3-1-2(b), "an administrative law judge is the ultimate authority for an administrative review under the following: (1) An order under I.C. 14-34, except for a proceeding: (A) concerning the approval or disapproval of a permit application or permit renewal under I.C. 14-34-4-13; or (B) a proceeding for suspension or revocation of a permit under I.C. 14-34-15-7.

22. The Commission has jurisdiction over the persons of the parties and the subject matter of this proceeding.

23. The administrative law judge is the ultimate authority for purposes of this proceeding.

[VOLUME 10, PAGE 105]

FINDINGS OF FACT:

1. Project 367 is a project controlled by I.C. 14-34-19. I.C. 14-34-19 constitutes the State of Indiana's program, approved by OSM pursuant to Title IV of SMCRA, for the expenditure of federal funds for carrying out abandoned mine reclamation.

2. The Department established that it had taken all reasonable efforts to obtain Wall's consent to entry upon his real property for the purpose of completing Project 367. Testimony of Brumfiel.

3. Specifically, Department representatives met with interested landowners affected by Project 367 on August 2, 2004, following Wall's refusal to consent to entry upon his real property. Testimony of Brumfiel.

4. The purpose of the August 2, 2004 meeting was to fully explain Project 367 and obtain landowner input for consideration. Testimony of Brumfiel and Respondent's Exhibit 8.

5. During the August 2, 2004 meeting Wall presented to the Department a suggested alternative to the existing plan for Project 367. Wall's alternative was considered and rejected by the Department and additional discussion between Department representatives and Wall occurred thereafter. Testimony of Brumfiel, Rebuttal Testimony of Wall.

6. Following Wall's continued refusal to provide consent, the Department proceeded to issue its February 1, 2005 notice of determination to Wall, by certified mail. The notice advised Wall of the Department's determination that the highwall existing on Wall's real property constituted a safety hazard, and in the interest of public health, safety and welfare the Department intended to exercise the State's police power to effectuate remediation of the hazard. Testimony of Brumfiel and Respondent's Exhibit 11.

7. Project 367 is a project proposed to occur in Greene County at County Road 300 North between County Road 1100 West and County Road 1175.

8. Project 367 involves a site that was mined before August 3, 1977, more specifically between 1923 and 1928 and there exists no continuing reclamation responsibility for the site. Testimony of Metzger.

9. Metzger's testimony established that the site of Project 367 was inadequately reclaimed to the extent that a highwall, approximate twenty-six (26) feet high with a nearly vertical slope exists on the north side of County Road 300 North.

10. The highwall involved with Project 367, located on the North side of County Road 300 North, is located on real property owned by Wall. Testimony of Metzger.

11. Metzger testified that a "Priority Documentation Form," provided by the federal government for use in assessing abandoned mine land ("AML") reclamation projects relative to federal funding of the State's AML program, was utilized in assessing the highwall involved with Project 367. Respondent's Exhibit 2.

12. Utilizing the "Priority Documentation Form" the highwall associated with Project 367 was classified as a priority 2 dangerous highwall. Testimony of Metzger.

13. More specifically, Metzger testified that to qualify as a dangerous highwall, the highwall must meet criteria included within each of the "Priority Documentation Form's" three parts. The highwall associated with Project 367 is of a height greater than six (6) feet with a slope of greater than fifty degrees (50°), thereby meeting at least one criteria established in parts I and II of the form. The highwall is also located within forty (40) feet of a heavily traveled and maintained road capable of speeds of at least forty miles per hour (40 mph), thereby meeting criteria number eight (8) of part III. Respondent's Exhibit 2, Testimony of Metzger.

14. Vehicular traffic on County Road 300 North between County Road 1100 West and County Road 1175 West is presently protected from the highwall located on the northern side of the roadway area by guardrails that were installed by the Department in 1990 under a previous AML reclamation project. Testimony of Metzger and Thomas.

15. Metzger testified that the guardrails presently in place at the site of Project 367 were installed in 1990

[VOLUME 10, PAGE 106]

at a time when the Department was anticipating the cessation of federal funding under Title IV of SMCRA for State AML reclamation projects. At that time, many higher priority sites existed and were being addressed in a permanent manner, while other sites, such as the site of Project 367, were addressed in a non-permanent manner with the Department reserving the right to conduct additional necessary reclamation at a later time should funding become available.

16. Federal funding under Title IV of SMCRA for State AML reclamation projects was re-authorized in 1992. Testimony of Metzger and Thomas.

17. The re-authorization of funding for the reclamation of AML's in 1992, along with the completion of higher priority AML projects allowed for the re-inspection and prioritization of sites previously corrected with the installation of guardrails. Testimony of Thomas.

18. According to Thomas such re-inspection involved approximately sixty (60) sites and occurred between 2000 and 2001.

19. Thomas ranked Project 367 as the fourth most serious site following the re-inspection process. Respondent's Exhibits 4 and 5[FOOTNOTE 1]

20. Laurie Johnson, who possesses a Bachelor of Science degree in Civil Engineering having previously been employed as a roadway engineer and now serving as a project manager for the Indiana Local Technical Assistance Program, a division of Purdue University's Civil Engineering Department, conducted a site inspection at the request of the Department on May 2, 2005. Testimony of Johnson.

21. Johnson, based upon raw data collected by the Department in 1997, determined the approximate average daily traffic ("ADT") on County Road 300 North in the area of Project 367 to be 1300. Testimony of Johnson and Respondent's Exhibit 1.

22. Johnson further testified that the Greene County Highway Department reported that no speed limit ordinance has been enacted with respect to the area of County Road 300 North involved with Project 367 and as such the legal speed limit is fifty-five miles per hour (55 mph). Testimony of Johnson and Respondent's Exhibit 1.

23. The guardrails presently in place on County Road 300 North at the site of Project 367 do not meet current Indiana Department of Transportation ("INDOT") standards. The guardrails presently in place are comprised of posts spaced 12'-6" apart with buried end treatments on the approaching ends and no end transitions on the departing ends. Testimony of Johnson and Respondent's Exhibit 1.

24. To meet present INDOT standards, the guardrails require post spacing of 6'-3" and upgraded end treatments. Testimony of Johnson and Respondent's Exhibit 1.

25. According to Johnson, the "Clear Zone Concept," derived from the INDOT Design Manual, specifies that an "ideal roadway should be free from obstructions or hazards within the entire width of the right-of-way," which would provide for approximately eighty percent (80%) of drivers of errant vehicles to regain control. See Respondent's Exhibit 1.

26. Johnson acknowledges in her report that such an ideal roadway is frequently impossible to achieve as a result of economic, environmental or drainage needs. Consequently, a minimum recommended clear zone is calculated based upon site specific factors including speed limit and traffic volume. Testimony of Johnson, Respondent's Exhibit 1.

27. Pursuant to INDOT standards, County Road 300 North within the limits of Project 367, with a speed limit of 55 mph and based upon a conservative ADT of 1,000, requires a minimum of ten (10) feet of clear space on each side of the travel lanes. Testimony of Johnson and Respondent's Exhibit 1.

28. Johnson testified that a guardrail is considered to be an obstruction under the clear zone concept, but acknowledged that guardrails are often utilized within the clear zone to protect from more hazardous situations, including drop offs.

29. On cross-examination Johnson acknowledged that INDOT standards are not applicable to county roadways.

30. Johnson concludes that a hazard exists as a result of the highwall's proximity to the roadway surface of County Road 300 North and "...the embankment should be

[VOLUME 10, PAGE 107]

made traversable or protected." Testimony of Johnson, Respondent's Exhibit 1.

31. Johnson recommends that remediation be considered in light of the existing inadequate guardrail design, further indicating that the creation of a traversable slope of a 3:1 ratio is preferable to upgrading the existing guardrails to INDOT standards. Testimony of Johnson, Respondent's Exhibit 1.

32. According to Wall's evidentiary material, the Greene County Sheriff's Department indicates that two reported crashes have occurred on County Road 300 North between County Road 1100 West and County Road 1225 West from 1995 to May 9, 2005. Claimant's Exhibit A.

33. Greene County Sheriff's Department Standard Crash Report 28A-0177-04 reveals that one of these accidents resulted from vehicle 1 cresting a hill left of center near the Boy Scout Camp Entrance while vehicle 2 was approaching from the opposite direction. Vehicle 2 took evasive action thereby sideswiping a street sign off the pavement to the south side of County Road 300 North with the vehicle's passenger side while being sideswiped by vehicle 1 on the driver's side. The accident report discloses no reported injuries and identifies the primary cause as "left of center." The driver of vehicle 1 was cited with an infraction as a result of the accident. Claimant's Exhibit C.

34. Greene County Sheriff's Department Standard Crash Report 28A-0168-04 describes a one-vehicle accident occurring on County Road 300 North in which vehicle 1 was traveling eastbound when an unidentified westbound vehicle crested the hill in vehicle 1's lane causing vehicle 1 to leave the pavement on the south side of County Road 300 North. The driver of vehicle 1, in an attempt to return the vehicle to the pavement, lost control hitting a guardrail on the north side of County Road 300 North with the front of the vehicle before spinning 180 degrees and hitting the guardrail a second time with the rear of the vehicle. The vehicle came to rest off the roadway surface on the north side of County Road 300 North without reaching the highwall. Claimant's Exhibits D & E[FOOTNOTE 2]

35. The City of Linton Fire Department reported "run records" from January 2001 to April 2005, revealing that "only one minor motor vehicle accident" occurred on County Road 300 North between County Roads 1175 West and 1100 West. This accident occurred on August 6, 2004. Claimant's Exhibits B & F.

36. City of Linton Fire Department, Fire Chief, Lonnie Eberhardt, further stated that in "15 years of working at the Linton Fire Department, I do not recall any major motor vehicle accident or fatality accident in this section of County Road 300 North." Claimant's Exhibit F.

37. The Department's evidence relevant to crash data was collected from the Indiana State Police for the period between 2001 and 2004. This data reveals that five (5) reported crashes have occurred within the work area of Project 367. Testimony of Johnson, Respondent's Exhibit 1.

38. Testimony of Department's witness, Laurie D. Johnson, indicated her uncertainty with respect to the extent of duplication between the crash data represented in her report with that presented by Wall. However, Johnson did state that the "VanHorn" crash, referenced in Claimant's Exhibits D and E, was included in her reported crash data making evident the existence of some duplication.

39. The parties agreed that additional unreported crashes might have occurred at the site of Project 367. Testimony of Johnson, Testimony of Wall.

40. Johnson was unable to state, based upon the crash data she collected, whether the crashes resulted in injury.

41. Evidence presented by the parties with respect to crash data allows the reasonable inference that a minimum of five (5) and a maximum of seven (7) reported crashes have occurred at the site of Project 367 between 2001 and 2005. Testimony of Wall, Testimony of Johnson, Claimant's Exhibits C, D, E &F, Respondent's Exhibit 1.

42. The only evidence relating to injuries or the severity of any injuries was presented by Wall. This information indicates that at least three (3) of the crashes involved no reported injuries and that Chief

[VOLUME 10, PAGE 108]

Eberhardt of the Linton Fire Department recalls no occasion in the past fifteen (15) years in which a crash at the site of Project 367 resulted in serious injury or death. This evidence was not disputed and must be accepted as accurate. Testimony of Wall, Claimant's Exhibits C, D, E & F.

43. Crashes for which details were provided did not involve the highwall located on Wall's real property.

44. The Department's proposal for correcting the safety hazard resulting from past mining activity involves backfilling a portion of Boy Scout Lake on the south side of County Road 300 North, the cutting down of two hills present on County Road 300 North within the working limits of Project 367 and the backfilling of Wall's property to replace the presently existing highwall with a 3:1 slope. Testimony of Thomas, Respondent's Exhibits 4 and 7.

45. Respondent's Exhibit 7 was evaluated in detail to establish additional specific data relative to the Department's adopted plans and specifications for Project 367.

46. For purposes of this proceeding, only portions of Project 367 relating to the highwall existing on Wall's real property are at issue.

47. More specifically, Project 367, in order to modify the existing highwall to a slope of 3:1, involves the clear-cutting of timber and vegetation, backfilling and re-grading of Wall's real property. Respondent's Exhibit 7.

48. Also included within Project 367 are the relocation of a stream and the construction of culvert outlets on Wall's real property. Respondent's Exhibit 4.

49. Department's plans and specifications for Project 367 indicate the plan's scale to be "1 INCH = 60 FEET." Respondent's Exhibit 7.

50. The timber clear cutting, backfilling, land surface grading, stream relocation and culvert work will involve disturbing Wall's real property over a land area varying between approximately ninety (90) feet to approximately one hundred thirty (130) feet north of the northern edge of County Road 300 North. Such work will continue for a distance of approximately nine hundred thirty (930) feet east of the western end of the work area limits. Respondent's Exhibit 7.

51. One hill ("western hill") to be lowered is located on the western end of Project 367's work limits. Respondent's Exhibit 7.

52. The completion of Project 367 will result in a final grade of this hill rising from five hundred forty (540) feet at the western end to a peak of five hundred forty-two (542) feet then declining in elevation on its eastern end to an elevation of five hundred thirty-four (534) feet. Respondent's Exhibit 7.

53. Sheet No. 6/6 of Respondent's Exhibit 7 identifies the "West Cross Section," of Project 367 at point 0+00 as indicated on Sheet Number 2/6. Point 0+00 on Sheet No. 2/6 is the point at the center of the western hill being lowered on County Road 300 North. Respondent's Exhibit 7.

54. The "West Cross Section" depicted at Sheet No. 6/6 establishes that Project 367, as planned and adopted by the Department, creates a roadway surface elevation of five hundred forty-three (543) feet and an embankment rising on the north side of the roadway to an elevation of five hundred forty-four (544) feet. The existing grade of the roadway at this point is five hundred forty-seven (547) feet with level terrain on the northern side of the roadway for a distance of approximately ten (10) feet. Respondent's Exhibit 7.

55. The second hill ("eastern hill") to be lowered is located near the eastern end of the Project 367's work limit. Respondent's Exhibit 7.

56. The "East Cross Section," found on Sheet No. 6/6 of Respondent's Exhibit 7 relating to Point 0+00 indicated on Sheet No. 3/6, is located at the center of the eastern hill.

57. The "East Cross Section," similar to the "West Cross Section," reveals that the Department's present plans for Project 367 will create an embankment at this location as well. Respondent's Exhibit 7.

58. The final grade embankment will rise to the north from a roadway surface elevation of five hundred thirty (530) feet to an elevation of five hundred thirty-three (533) feet. The existing road surface elevation is approximately five hundred thirty-three (533) feet with a

[VOLUME 10, PAGE 109]

very slight rise on the northern side of the roadway to an elevation of approximately five hundred thirty-three and one-half (533.5) feet. Respondent's Exhibit 7.

59. The Department's evidence regarding the existing distance between the northern edge of County Road 300 North is varied. Metzger testified that the distance is approximately eight (8) feet while Thomas' testimony established the distance as between five (5) to fifteen (15) feet. Johnson concluded that the distance varied between three feet six inches (3'6") and eight (8) feet. See Respondent's Exhibits 1, 4 and 5.

60. A review of Respondent's Exhibit 7, utilizing the indicated scale of "1 INCH = 60 FEET" reveals that with the exception of three identifiable locations, the distance between the northern roadway edge and the highwall is in limited locations as little as ten (10) feet but is in many locations twenty (20) feet or more.

61. In the areas providing ten (10) feet or more of distance between the northern roadway edge and the highwall, the elevation differential between the existing roadway surface and the land area between the roadway and the highwall is approximately two (2) to six (6) feet; in some areas creating slightly inclining and in other areas creating slightly declining terrain elevations. Respondent's Exhibit 7.

62. The three (3) identifiable areas that do not, at the existing grade, provide at least ten (10) feet of distance between the northern roadway edge and the highwall are identified as follows:

63. Points A, B, and C are each culvert areas with the top of the highwall located at a distance of approximately five (5) to eight (8) feet north of the northern roadway edge of County Road 300 North. Respondent's Exhibit 7.

64. It is evident from Respondent's Exhibit 7 that with the exception of Points A, B, and C, the existing distance between the northern roadway edge of County Road 300 North and the top of the highwall meet, or in most instances exceed, Johnson's recommended ten (10) feet of clear space.

65. At Points A and B, the "final grades" identified in the plans for Project 367 clearly identify the Department's plan to backfill the culvert areas north of County Road 300 North from a roadway elevation of five hundred forty (540) feet to an elevation of five hundred thirty-eight (538) feet over a distance of approximately thirty (30) feet north of the northern roadway edge.

66. With respect to Point C, the "final grades" identified in Project 367's plans indicate that the roadway surface elevation will be five hundred thirty-four (534) feet. At this point the "final grades" indicate that the culvert will be backfilled to the elevation of five hundred thirty-two (532) feet to a point approximately nineteen (19) feet from the northern roadway edge of County Road 300 North.

67. Wall, on rebuttal, established his suggested alternative to the plans and specifications adopted by the Department for Project 367 stating, "I still have trouble conceiving there's that much of a safety hazard there when there's never been a fatality there; there's never been anyone critically injured in the accidents. How can they justify spending that amount of money when all they would have to do is move the guardrail back on me and fix the culverts? I mean we wouldn't be here today if that would have happened." Testimony of Wall.

68. The

[VOLUME 10, PAGE 110]

Department's witnesses acknowledged that Project 367 as adopted is "the way the job was originally designed; this is how it was pretty much laid out at the pre-design meeting with the engineer." Testimony of Thomas.

69. On cross examination in response to Wall's question as to what changes were made in the plans for Project 367 following the receipt of input from landowners at the August 2, 2004 meeting, Thomas responded, "No, I didn't, uh, incorporate anything different into the plans other than the existing plans as they are." Testimony of Thomas.

70. The Department did establish that following the August 2, 2004 meeting with landowners, Wall's suggestion to repair the culverts and move the guardrails back away from the roadway was presented to Ray Peterson, the project engineer. Testimony of Brumfiel.

71. Brumfiel testified, with respect to the presentation to Peterson that "he (Peterson) did not believe this would be a good idea, uh, it would leave an embankment where the road was lowered and also may create drainage problems for the road." Testimony of Brumfiel.

72. According to Respondent's Exhibit 7, the creation of embankments, which formed the basis of the Department's rejection of Wall's suggestion to repair the culverts and move the guardrails away from the roadway edge, are being created in the location where the hill peaks are being lowered by the Department's existing adopted plans for Project 367, in any event.

73. Jeremiah Lemmons, a Department District Forester, testified that he prepared a timber inventory relating to timber owned by Wall standing within the work limits of Project 367. Lemmons determined that based upon a count of trees a minimum of twelve (12) inches in diameter, Wall owned seventy-eight (78) merchantable trees upon the plot within the work limits of Project 367, which in Lemmons' opinion was not being managed for timber stand merchantability. Testimony of Lemmons.

CONCLUSIONS OF LAW:

1. Project 367 is established as an AML reclamation project under I.C. 14-34-19.

2. Evidence relating to the Department's fulfillment of its statutory requirements regarding notice to Wall of its intention to exercise its police authority under I.C. 14-34-19 is established.

3. Because police power may be exercised only to protect the public safety, health and general welfare such an exercise for purposes of facilitating a reclamation project the intent of which is to enhance public facilities under I.C. 14-34-19-3(5) is not proper. Lawton, supra; Indiana Coal Council, supra; Clem, supra; OSM Guidelines.

4. Furthermore, the evidence presented by the parties was restricted to Project 367's classification as one for the protection of the public from the adverse effects of coal mining practices under I.C. 14-34-19-3(2).

5. No further consideration is, therefore, afforded to Project 367 as a priority 5 project for the enhancement of County Road 300 North under I.C. 14-34-19-3(5).

6. The fact that a minimal number of crashes have occurred at the site of Project 367 resulting in no serious injuries or fatalities is not determinative of the existence of a safety hazard, that in the interests of public health, safety and general welfare may be remedied under the State's exercise of its police power.

7. I.C. 14-34-19 properly authorizes the Department to exercise police power for the remediation of safety hazards remaining from mining or mine related activity occurring before August 3, 1977 on land that remains in an un-reclaimed or inadequately reclaimed state.

8. The Department's determination, pursuant to federal assessment guidelines, that the highwall, consisting of an approximate twenty-six (26) foot, near vertical declining elevation and existing within forty (40) feet of County Road 300 North constitutes a safety hazard, is proper.

9. Remediation of such safety hazard constitutes a valid exercise of

[VOLUME 10, PAGE 111]

the Department's legislatively authorized police power pursuant to I.C. 14-34-19.

10. The affirmation of the Department's determination that a safety hazard in the form of a highwall existing on Wall's real property in close proximity to County Road 300 North, is however insufficient, in and of itself, to sustain Project 367. Indiana Coal Council, supra.

11. The means set forth by the Department in Project 367 to eliminate the safety hazard created by the highwall on Wall's real property may not exceed the measures reasonably necessary to achieve the stated objective of protecting the general public from the traffic hazard created by the highwall. Holt, supra; Beltrami Brothers, supra and Barnes and Tucker Company, supra.

12. The means adopted by the Department for eliminating the safety hazard must be balanced against Wall's right to possess, control and make reasonable use of his privately owned real property. Id. This balance is not restricted to economic loss relating to the value of merchantable timber but includes consideration of the use presently made of the land, which includes providing privacy and a sound barrier for Wall's residence as well as wildlife habitat.

13. What must be determined is whether the means selected by the Department in its present plans for Project 367 are reasonably necessary for the protection of vehicular traffic on County Road 300 North from the safety hazard created by the highwall or whether the Department's present plans for Project 367 reach beyond the necessity of protecting vehicular traffic from the hazard in such a manner as to be oppressive to Wall's reasonable use and possession of his real property.

14. The testimony of Department's witness, Laurie Johnson, is convincing.

15. Johnson's conclusions must, however, be tempered in light of the fact that they are conclusions based upon INDOT standards, which are inapplicable to County Road projects.

16. While the clear zone concept is intended to provide an area free of obstructions and hazards, guardrails, which are obstructions, are often placed within the clear zone to provide protection for significant hazards, such as the hazard presented by the highwall at issue in this proceeding. This deviation from the clear zone concept is evident from a photograph existing within Johnson's report encaptioned, "W-beam guardrail installed in accordance with current INDOT standards," which depicts a guardrail placed approximately three (3) feet from the roadway surface.

17. Additional difficulty in balancing the Department's responsibility to provide protection from the highwall's hazard with Wall's property rights is presented by Johnson's testimony and Respondent's Exhibit 1, prepared and presented by Johnson, in that she provides alternative recommendations, one supporting the Department's position and the other supporting Wall's.

18. Johnson's first alternative supports the Department's adopted plans for Project 367 to make the highwall traversable.

19. The first alternative recommendation of Johnson is preferred based upon INDOT's conclusion that traversable grades are safer for vehicular traffic.

20. Johnson's second alternative recommends protecting the highwall by upgrading the guardrails to INDOT standards, which is consistent with Wall's proposal for Project 367.

21. The Department's rejection of Wall's proposed alternative is based solely upon its determination that such a plan would result in the creation of an embankment at the point where Project 367 involved lowering the roadway surface, which MAY result in drainage issues for the roadway.

22. The Department's stated rationale for rejecting Wall's proposed alternative is unconvincing for several reasons.

23. The plans adopted by the Department for Project 367 will create an embankment at the points where the roadway will be lowered.

24. The testimony relating to potential drainage issues created by use of Wall's alternative proposal was couched as speculation.

25. The Department did not draft design plans upon which to fully consider the extent of any increase in the embankment or to determine whether actual drainage issues would result from

[VOLUME 10, PAGE 112]

altering the plans for Project 367 to those proposed by Wall.

26. The Department's rejection of Wall's proposed alternative involved no consideration of the paramount issue whether, in this instance, guardrails placed a further distance from the northern edge of the roadway surface would provide an equal or lesser degree of protection from the highwall.

27. While crash data is not determinative of the existence of a safety hazard, it is enlightening in terms of the reasonableness of the plans for remediation of the hazard so identified.

28. Crash data reveals that within the past fifteen (15) years no crash resulting in serious injury or death has occurred at the location of Project 367. Claimant's Exhibit F.

29. Of the five (5) to seven (7) reported vehicle crashes that have occurred in the past five (5) years, none has actually involved the highwall. Testimony of Johnson, Testimony of Wall, Claimant's Exhibits A, B, C & D.

30. The crash data does reveal that at least one crash did directly involve the guardrails presently existing on the north side of County Road 300 North. In that instance the existing guardrails, which do not meet current INDOT standards, served to protect the vehicle from the highwall located on Wall's real property. Claimant's Exhibits D & E.

31. That same accident reveals that immediately east of the involved guardrail there presently exists a sufficient distance between the northern edge of the roadway and the highwall for a vehicle to successfully come to rest. Claimant's Exhibits D & E.

32. The distance between the northern edge of County Road 300 North and the highwall in most instances provides for the recommended ten (10) feet of clear zone.

33. Of the areas that do not provide the recommended ten (10) feet of clear zone, most are directly related to the culverts identified as Points A, B, and C that Wall proposed be repaired. Respondent's Exhibit 7.

34. Additionally, a thorough review of the Department's adopted plans for Project 367 indicates the Department's present intention to correct the terrain elevations at Points A, B and C in a manner that does not, of necessity, impact the entirety of the highwall located on Wall's real property. Respondent's Exhibit 7.

35. Two alternatives are viable for protecting vehicular traffic on County Road 300 North from the safety hazard created by the highwall existing on Wall's real property.

36. While one method, making the highwall traversable, may be preferred, its impacts upon Wall are significant in terms of interference with his reasonable use of an expansive area of his real and personal property. Wall's proposed alternative, which by the Department's own evidence is also viable, will involve dramatically decreased levels of interference to Wall's use and possession of his property.

37. While it is acknowledged that there need not be and indeed should not be a crash involving the highwall at the location of Project 367 before remedial measures are taken, it is also recognized that the Department has determined to go forward with plans for Project 367 as originally "laid out at the pre-design meeting" without due consideration of whether the goals of protecting vehicular traffic from the highwall can be effectively accomplished by Wall's alternative proposal.

38. It is impossible, without full consideration of Wall's proposed alternative for Project 367, to ascertain whether the Department's adopted plans for Project 367 are reasonable and thus a proper exercise of its legislatively authorized police power or if the present plans for Project 367 regulate to an greater degree than necessary under the circumstances such as to create an unreasonable interference with Wall's possession and use of his property.

39. Consequently, it is also impossible to determine whether Project 367 constitutes a "taking" by the Department of Wall's property.

[VOLUME 10, PAGE 113]

FOOTNOTES

1. The testimony of Thomas was not disputed by Wall and as such is taken as conclusive of the re-prioritization of previously guardrailed sites. It must be noted that the scoring between Respondent's Exhibit 4 and Respondent's Exhibit 5 appear inconsistent. Exhibit 4 reveals a score of 43 for Project 367 while Exhibit 5 reveals a score of 6.1. Furthermore, the Department's re-inspection of previously guardrailed sites becomes confusing when a 70-80 foot highwall located within 2-3 feet of a county road on a curve results in a lower priority ranking than a 26 foot highwall located between 5 - 15 feet from a relatively straight county road section. Additional testimony relating to these points may have proved useful. See Respondent's Exhibits 4 & 5

2. It must be noted that pages one of three and two of three were admitted as Claimant's Exhibit E, while page three of three was admitted at Claimant's Exhibit D. Exhibits D and E both relate to the same accident as indicated by the "Local ID of 28A-0168-04.