[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:
- 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.
- 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.
- 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.
- 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]
- A prehearing conference was scheduled and held on March
28, 2006, with both parties in attendance.
- In
advance of the prehearing conference, on March 23, 2006, the Department
filed “Respondent Indiana Department of Natural Resources’ Motion to
Dismiss.”
- 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.
- LWPOA,
on March 27, 2005, filed “Claimant Lake of the Woods Property Owners
Association Motion for Summary Judgment.”
- 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.
- 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.
- 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:
- Permit
DR-444 was issued by the Department to Yockey pursuant to IC 14-26-5-3.
- 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.
- 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]
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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).
- The
Commission is without jurisdiction over the subject matter of this
proceeding.
- 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.
- 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.
- 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]
- 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.
- 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.
- The
notices, as issued by the Department created confusion and that confusion
resulted in the instant situation.
- 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.
- Consequently,
this proceeding must be remanded to the Department for reissuance of the
license with corrected notification consistent with IC 14-26-5.