CADDNAR

[CITE: Travelstead v. Vigo Coal Co., and DNR, 10 CADDNAR 302 (2006)]

 

[VOLUME 10, PAGE 302]

 

Cause #: 06-017R

Caption: Travelstead v. Vigo Coal Company and DNR

Administrative Law Judge: Jensen

Attorneys: Travelstead, pro se; Ernest; Boyko

Date: May 3, 2006

 

 

FINAL ORDER ON RESPONDENTS’ MOTIONS FOR SUMMARY JUDGMENT

 

36. B. Travelstead has failed to state facts as required by IC 4-21.5-3-7 that sufficiently demonstrate she was a person to whom a Department “order” was directed or by which she is aggrieved or adversely effected or based upon which she was otherwise entitled to administrative review.

 

37. Alternatively, if B. Travelstead’s First Complaint and Amended Complaint relate to the Department’s determination to release Phase 1 bonding, pursuant to IC 14-34-6-7 – 14 and 312 IAC 25-5-16, it may reasonably be inferred from the pleadings and evidence that her Complaint is untimely.

 

38. It is determined that the Respondents’ Motions to Dismiss, which are converted to Motions for Summary Judgment in accord with Indiana Rules of Trial Procedure, Rule 12(C), are hereby granted.

 

39.  The instant proceeding is ordered DISMISSED

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

 

BACKGROUND

 

1. The instant proceeding was initiated by correspondence (“First Complaint”)  filed with the Natural Resources Commission (“Commission”) by Joe Travelstead (“J. Travelstead”) on January 18, 2006.

 

2. J. Travelstead’s First Complaint was scant with respect to his allegations or the relief he sought through this proceeding.  However, it was apparent that J. Travelstead’s sought administrative review was for the purpose of determining a dispute relating to reclamation activity on land mined by Vigo Coal Company (“Vigo”) under a permit issued by the Department of Natural Resources (“Department”) (collectively “Respondents”).

 

[VOL. 10, PAGE 303]

 

3. A prehearing conference was scheduled and conducted on February 22, 2006 at the Department’s Division of Oil and Gas field office located in Evansville, Indiana.

 

4. In advance of the prehearing conference, both Vigo and the Department filed Motions to Dismiss on February 17, 2006.

 

5. During the prehearing conference it was determined that J. Travelstead’s First Complaint failed to comply with the provisions of IC 4-21.5-3-7 and further failed to sufficiently place the Respondents on notice as to the allegations against which they would be required to prepare a defense.  Report of Prehearing Conference, February 28, 2006.

 

6. It was also determined that J. Travelstead would be afforded an opportunity to file an amended Petition for Review and that the Respondents would be afforded an opportunity thereafter to supplement their respective Motions to Dismiss.  Id.

 

7. On March 6, 2006, J. Travelstead timely filed supplemental correspondence, which included two attached exhibits (“Amended Complaint”), that more specifically set forth the basis of the allegations against the Respondents and which identified the proper Claimant as Bonnie Travelstead (B. Travelstead), for whom J. Travelstead is serving as representative.  The Amended Complaint alleges that reclamation of B. Travelstead’s real property located on New Harmony Road was completed in a manner that is inconsistent with the requirements of S-00318-1, Vigo’s permit issued by the Department pursuant to the Indiana Surface Mining Control and Reclamation Act (I-SMCRA).

 

8. Consistent with the prehearing conference order, both Vigo and the Department filed supplementation to their Motions to Dismiss on March 15, 2006 and March 22, 2006, respectively.

 

9. B. Travelstead was offered the opportunity to file a Response Brief following the Respondents’ supplementation of their Motions to Dismiss.  Id.  B. Travelstead did not avail herself of this opportunity. 

 

10. Substantively this proceeding relates to a reclamation issue controlled by I-SMCRA, codified at IC 14-34-6, and administrative rules adopted at 312 IAC 25-5 that aid the Department in its implementation of I-SMCRA.

  

11. The Department is the agency responsible for the administration of I-SMCRA.  IC 14-34-1-3 and IC 14-11-1-1.

 

12. This proceeding is governed by the Indiana Administrative Orders and Procedures Act (AOPA), IC 4-21.5-3 et seq., and administrative rules adopted at 312 IAC 3-1, which assist in the implementation of AOPA in proceedings before the Commission.

 

13. The administrative law judge is the “ultimate authority” as defined at IC 4-21.5-1-15, for purposes of the instant proceeding.  312 IAC 3-1-2(b).

 

[VOL. 10, PAGE 304]

 

14. To the extent the Indiana Rules of Trial Procedure are consistent with AOPA, those Rules are applicable to this proceeding.  312 IAC 3-1-10.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

15. Included within Vigo’s Motion to Dismiss are five (5) exhibits, which are not excluded.

 

16. Because evidence outside the pleadings was presented with Vigo’s Motion to Dismiss and not excluded by the administrative law judge, the Respondents’ Motions to Dismiss filed pursuant to the Indiana Rules of Trial Procedure, Rules 12(B)(1) and (6) are converted to Motions for Summary Judgment controlled by Rule 56.  Indiana Rules of Trial Procedure, Rule 12(C).

 

17. Summary Judgment is appropriate in administrative proceedings before the Commission.  IC 4-21.5-3-23.  The Indiana Rules of Trial Procedure, Rule 56 is also considered with respect to summary judgment motions before administrative bodies. 

 

18. I.C. 4-21.5-3-23 states that,

 

 

(b) The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law.  A summary judgment may be rendered upon fewer than all the issues or claims … although there is a genuine issue as to damages or liability, as the case may be.  A summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order.  The administrative law judge shall designate the issues or claims upon which the judge finds no genuine issue as to any material facts…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 the 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 305]

 

19. Summary judgment is appropriate where the moving party has sufficiently established that there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law.  Indiana Department of Environmental Management v. Schnipple Construction, Inc., 778 N.E.2d 407 (Ind. App. 2002). 

 

20. A genuine issue of material fact exists when facts necessary to a determination of a proceeding are in dispute, or are not in dispute but are capable of supporting at least two differing inferences.  Id.

 

21. Pursuant to IC 4-21.5-3-7, to qualify for administrative review, a petitioner must “[s]tate facts demonstrating that (A) the petitioner is a person to whom the order is specifically directed; (B) the petitioner is aggrieved or adversely affected by the order; or (C) the petitioner is entitled to review under any law.”[1] 

 

22. An order, as referred to in IC 4-21.5-3-7, is “an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons. The term includes: (1) a license; or (2) a determination under IC 4-21.5-3-6(a)(3) or IC 4-21.5-3-6(a)(4).”

 

23. B. Travelstead, in the First Complaint, stated that she was “requesting review of the reclamation done to property reclaimed by Vigo Coal Company.”[2]  In the Amended Complaint, B. Travelstead elaborates on the details of the dispute by stating that her “land located on New Harmony Road was not properly reclaimed in that the land was sloped too much towards the creek…”  

 

24. However, at no time does B. Travelstead, or her representative J. Travelstead, identify an “order” of the Department associated with their First or Amended Complaint. 

 

25. A Claimant must at minimum state facts sufficient to “give the responding party notice of the charges against him.”  Bieda v. B & R Development and DNR, 9 CADDNAR 1, (2001), citing L.G. Balfour Co. v. Federak Trade Comm’n, 442 F.2d 1, 19 (7^th Cir. 1971).

 

[VOL. 10, PAGE 306]

 

26. B. Travelstead may not place the Respondents in a position to speculate as to the claims against which they must be prepared to defend.

 

27. B. Travelstead’s failure to identify the “order” upon which she bases her claim to administrative review is, in and of itself, a sufficient basis for the dismissal of the instant proceeding. 

 

28. Because B. Travelstead’s First Complaint and Amended Complaint both fail to identify the “order” for which she seeks administrative review, one may only assume, as did Vigo and the Department that B. Travelstead is seeking to object to the Department’s release of bond to Vigo under IC 14-34-6-13(1) and 312 IAC 25-5-16(d)(1), commonly referred to as “Phase 1 Bond Release”.

 

29. However, administrative review relating to the release of bond is controlled by IC 14-34-6-7-14 and 312 IAC 25-5-16, which also specifies the time within which administrative review must be initiated.

 

30. Vigo and the Department argue in the alternative that if they have speculated correctly and B. Travelstead is now attempting to file her objection to the Phase I bond release, her First Complaint and Amended Complaint were untimely filed.

 

31. Vigo’s application for Phase I bond release relating to the B. Travelstead real estate resulted in the Department conducting a bond release inspection on January 14, 2005.  Vigo’s Motion to Dismiss, Exhibit B.

 

32. Included within the Department’s Bond Release Inspection Report dated January 14, 2005, is indication that Harold Travelstead, who was present for a portion of the inspection, indicated satisfaction with the reclamation completed by Vigo.  Id.

 

33. Pursuant to the Amended Complaint, Harold Travelstead notified Vigo of his displeasure regarding the reclamation of the land located on New Harmony Road for the first time in August 2005.

 

34. The instant proceeding was not initiated until January 18, 2006, over one full year from the Department’s bond release inspection.

 

35. It can readily be inferred that B. Travelstead’s First Complaint, which was filed with the Commission over one (1) year after the Department conducted its bond release inspection, is untimely.