CADDNAR
[CITE: Hoosier Env. Council, et al. v. INDOT & DNR (Dismissal), 13 CADDNAR 77 (2012)]
[VOLUME 13, PAGE 77]
Cause: 11-067W
Caption: Hoosier Env. Council, et al. v. INDOT (Dismissal)
Administrative Law Judge: Jensen
Attorneys: Van Gilder; pro se (Boyd); Junk (INDOT); Wyndham (DNR)
Date: December 11, 2012
[NOTE: see The UNDERLYING SUMMARY JUDGment DECISION at Hoosier Env. Council, et al. v. INDOT, 13 caddnar 69 (2012).]
ORDER GRANTING CLAIMANTS’ MOTION TO DISMISS AND ORDER TO INDEX SUMMARY JUDGMENT ORDER IN CADDNAR
On October 16, 2012, the administrative law judge issued an “Order on Indiana Department of Transportation’s Motion for Summary Judgment” (“Order”) in the instant proceeding. While many issues were determined on summary judgment in favor of the Department of Transportation and the Department of Natural Resources, (collectively referred to as “the Respondents”) five issues, identified in Findings 103 through 106 of the Order, remained for consideration upon the presentation of evidence at an administrative hearing.
Subsequent to the issuance of the Order, the parties agreed to a Case Management Order (“CMO”) addressing final preparation for the administrative hearing. The Claimants failed to comply with the CMO prompting the Respondents to file their Motion for Default Judgment on November 19, 2012. Later, on November 28, 2012, the Respondents filed a motion seeking to have the Order “entered as part of any final order concluding this matter, so that the contested and litigated issues…. can be indexed in CADDNAR….” Departments’ Motion for Final Order.
In lieu of issuing the default judgment requested by the Respondents, a Notice of Proposed Dismissal was issued to the Claimants on November 26, 2012. In response to the Notice of Proposed Dismissal, counsel, David C. Van Gilder, on December 4, 2012 moved to dismiss the instant proceeding on behalf of Claimants, Hoosier Environmental Council, Jim and Jane Gillooly, Nancy Grannan and Robert Wildman and offered their opposition to the Respondents’ motion for the incorporation of the Order as a part of the final order of dismissal. The administrative law judge was notified on December 5, 2012, that Claimant, William C. Boyd, had joined in the motion filed on behalf of the remaining Claimants.
Only in limited circumstances set forth in 312 IAC 3-1-9 and 312 IAC 3-1-2 is an administrative law judge for the Natural Resources Commission authorized to serve as the “ultimate authority” for purposes of entering a final order under I.C. 4-21.5-3-28. It is the determination of the administrative law judge that she does possess the authority, pursuant to 312 IAC 3-1-9(a), to grant a final order of dismissal in response to the Claimants’ motion to dismiss. However, the administrative law judge concludes further that she is without authority in this instance to act as the ultimate authority in incorporating any portion of the Order into the final order of dismissal.
In accordance with I.C. 4-21.5-3-32, CADDNAR indexes and “make[s] available all written final orders for public inspection and copying” and thereby provides that any order so indexed may be utilized as precedent. See Establishment of Division of Hearings; Indexing of Final Adjudicative Agency Decisions; Transcript Fees; Information Bulletin #1 (Third Amendment); Indiana Register DIN 20120321-IR-312120148NRA; http://www.in.gov/legislative/iac/20120321-IR-312120148NRA.xml.pdf. (Hereinafter referred to as “IB #1”). IB #1 anticipates:
Accessible through CADDNAR are decisions rendered by the Commission following the completion of a contested proceeding. Included are those following (1) hearing; (2) summary judgment; or, (3) involuntary dismissal, if a noteworthy point of law is considered. Upon request of the parties, agreed orders may be included if they address novel legal issues.
That the ultimate “completion” of the instant proceeding is accomplished through a voluntary dismissal by the Claimants does not negate the fact that the dismissal follows a “contested proceeding”. This is particularly true when the outcome of the contested portion of the proceeding is clearly the impetus for the Claimants’ dismissal of their request for administrative review, which conclusion is drawn from the Claimants’ following statement:
Quite simply, having failed to convince the court on certain key issues on summary judgment, the cost to go on exceeds the expected benefit to Claimants, even if successful on the few remaining issues.
Claimants’ Request for Voluntary Dismissal, ¶2f.
Furthermore, a review of the Order reveals the discussion and determination of “novel legal issues” some of which are believed to be issues of first impression for the Natural Resources Commission. As such, the indexing of the Order in CADDNAR is particularly appropriate and important.
The Claimants should not be permitted to prevent the indexing of the Order in CADDNAR, which action would deprive the legal community of important discussions and conclusions on noteworthy and novel legal issues, by voluntarily dismissing their request for administrative review following a lack of success on many issues decided through contested summary judgment.
While the administrative law judge is not required to grant the Claimants’ motion to dismiss it is the determination of the administrative law judge that the Claimants should not be prevented from voluntarily dismissing their request for administrative review.
[VOLUME 13, PAGE 78]
For all the foregoing reasons it is determined as follows: