CADDNAR


[CITE: Lake of the Woods Property Owners Assoc. v. Yockey, Jr. and DNR, 10 CADDNAR 307 (2006)]

 

[VOLUME 10, PAGE 307]

 

Cause #: 06-041W

Caption: Lake of the Woods Property Owners Association v. Ernest Yockey, Jr. and DNR

Administrative Law Judge: Jensen

Attorneys: Skelton, pro se; Yockey, pro se; Knotek

Date: June 19, 2006 

                                   

 

FINAL ORDER

 

32.  The Commission is without subject matter jurisdiction.

 

33.  This proceeding is remanded to the Department for reissuance of its determination relating to Permit DR-444.

 

34.  Included with the reissuance shall be notice that review of the determination may be sought in the Marshall County Circuit or Superior Court, consistent with the provisions of IC 14-26-5.

 

35.  Notification of the Department’s reissued determination associated with Permit DR-444 shall be provided to Lake of the Woods Property Owners Association, Ernest Yockey, Jr., as well as all other potentially affected persons as required by law.

 

36.  The Department’s reissued licensing determination shall be effective for a period of two years from the date of reissuance. 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

FINDINGS OF FACT:

 

  1. On February 24, 2006, the Claimant, Lake of the Woods Property Owners Association (LWPOA), by its Vice President, Joseph Skelton, sought administrative review of a Certificate of Approval for Ditch Reconstruction.

 

  1. The Certificate of Approval for Ditch Reconstruction, designated as DR-444, was issued by the Respondent, Department of Natural Resources (Department) to Respondent, Ernest Yockey, Jr. (Yockey), on February 15, 2006.

 

  1. DR-444 authorizes the construction of a private stormwater drain within four hundred thirty-five (435) feet of Lake of the Woods in Marshall County.

 

  1. LWPOA sought administrative review pursuant to the Administrative Orders and Procedures Act (AOPA), IC 4-21.5 et seq. and 312 IAC 3-1 et seq.

 

[VOL. 10, PAGE 308]

 

  1. A prehearing conference was scheduled and held on March 28, 2006, with both parties in attendance.

 

  1. In advance of the prehearing conference, on March 23, 2006, the Department filed “Respondent Indiana Department of Natural Resources’ Motion to Dismiss.”

 

  1. The Department’s Motion sought dismissal of LWPOA’s petition for review on the basis that the Natural Resources Commission (Commission), lacks jurisdiction over the subject matter of this proceeding.

 

  1. LWPOA, on March 27, 2005, filed “Claimant Lake of the Woods Property Owners Association Motion for Summary Judgment.”

 

  1. It was determined at the prehearing conference and was reiterated in an entry issued May 4, 2006, that a determination on the jurisdictional issue raised by the Department would, of necessity, precede any determination on the merits as requested in LWPOA’s Motion for Summary Judgment.

 

  1. The Department acknowledged in its Motion to Dismiss that in addition to issuing notices that persons adversely affected by the issuance of DR-444 were authorized to file a complaint in the Marshall County Circuit or Superior Court, it also mistakenly issued notices advising that those persons were authorized to seek administrative review by the Commission.

 

  1. LWPOA, relying upon the notices issued by the Department, sought administrative review with the Commission and did not file a complaint in the Marshall County Circuit or Superior Court.

 

 

CONCLUSIONS OF LAW:

 

  1. Permit DR-444 was issued by the Department to Yockey pursuant to IC 14-26-5-3.

 

  1. As relevant to the instant proceeding IC 14-26-5-10 states,

(a) Except as provided in subsection (b), a person, firm, limited liability company, or corporations that is adversely affected by a decision of the department may appeal the decision by filing a complaint in the circuit or superior court in which the lake or a part of the lake is situated.

 

  1. The Department contends that IC 14-26-5-10(a) grants jurisdiction to review license determinations issued pursuant to IC 14-26-5 only to the Circuit or Superior Court of Marshall County.

 

[VOL. 10, PAGE 309]

 

  1. LWPOA, contrary to the Department, cites 312 IAC 11-1-2(b), which authorizes administrative review by the Commission for all Department actions in granting, conditioning or denying a license under IC 14-26, in support of its objection to the Department’s Motion to Dismiss.

 

  1. LWPOA further alleges that the Department’s error in issuing the notices associated with Permit DR-444 caused its licensing determination to be deficient to such an extent that the permit is fatally flawed and this void.

 

  1.  Additionally, LWPOA alleges that the Department is estopped from seeking a dismissal of this proceeding because LWPOA, to its detriment, relied upon the erroneous notices issued by the Department.

 

  1. With respect to LWPOA’s first contention that 312 IAC 11-1-2(b) grants to the Commission jurisdiction over the subject matter of a permit issued under IC 14-26-5-10, it is in error.

 

  1. First, it must be noted that administrative rules are enforceable on to the extent that they are within the scope of the statute.  Van Allen v. State of Indiana, 467 N.E.2d 1210 (Ind. App., 2nd Dist., 1984).

 

  1. In this context 312 IAC 11-1-2(b) is directly in conflict with IC 14-26-5-10(a), and the statute must prevail.

 

  1. Furthermore, 312 IAC 11-1-2(b) is an administrative rule of general applicability while IC 14-26-5-10(a) is a statute of particular applicability to IC 14-26-5.  Statutes or administrative rules of general applicability shall give way to statutes or administrative rules of specific applicability.

 

  1. It has previously been determined by the Commission that review of a permit issued pursuant to IC 14-26-5 is “wholly outside the structure anticipated by AOPA.”  Fair, et al. v. Noble County Drainage Board and DNR, 9 CADDNAR 82, (2002).

 

  1. The Commission is without jurisdiction over the subject matter of this proceeding.

 

  1. With respect to LWPOA’s contention that the Department’s notices issued in association with Permit DR-444, resulted in a fatally flawed license determination, LWPOA is correct.

 

  1. The Department seeks to have the Commission grant to LWPOA leave to file its complaint in the Circuit or Superior Court of Marshall County within thirty (30) days of the issuance of a determination in this proceeding.

 

  1. Pursuant to IC 14-26-5-12, any complaint relating to the Department’s issuance of DR-444 was required to be filed in the Marshall County Circuit or Superior Court within thirty (30) days of the Department’s determination, which occurred on February 15, 2006.

 

[VOL. 10, PAGE 310]

 

  1. The Commission cannot presume to grant leave to any person to file a complaint that fails to comply with IC 14-26-5-12 and further is without authority to require the Circuit or Superior Court of Marshall County to accept a complaint filed pursuant to IC 14-26-5-12 that is filed in excess of thirty (30) days after February 15, 2006.

 

  1. It is understood that the Department, in addition to the erroneous notice also issued a correct notice advising that complaints in opposition to the Department’s determination could be filed in the Marshall County Circuit or Superior Court.

 

  1. The notices, as issued by the Department created confusion and that confusion resulted in the instant situation.

 

  1. Consistent with Fair, supra, it is determined that the misinformation provided by the Department with respect to DR-444 has rendered its licensing determination ineffective.

 

  1. Consequently, this proceeding must be remanded to the Department for reissuance of the license with corrected notification consistent with IC 14-26-5.