CADDNAR

[CITE: Justice v. Fulton Co. Surveyor & DNR, 13 CADDNAR 276 (2014)]

 

[VOLUME 13, PAGE 276]

 

Cause #: 12-199W

Caption: Justice v. Fulton Co. Surveyor & DNR

Administrative Law Judge: Lucas

Attorneys:

Date: August 4, 2014

 

 

FINAL ORDER OF SUMMARY JUDGMENT

 

There is no genuine issue of material fact.  With dissolution of the Indian Creek Joint Drainage Board, the circumstances on which the Department of Natural Resources issued the subject permit changed materially.  Issuance of the subject permit is rescinded.  The rescission is without prejudice to a qualified drainage board (or the agent who properly serves a qualified drainage board) to apply for another permit that is similar to or the same as the subject permit.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Statement of the Proceeding and Jurisdiction

 

1. On October 25, 2012, the Department of Natural Resources (the “DNR”) issued for application FW-26802 a “Certificate of Approval [for] Construction in a Floodway” (the “subject permit”) to Don Towne, Fulton County Surveyor (the “Fulton County Surveyor”).  The subject permit authorized activities within the floodways of Indian Creek and the Tippecanoe River in Indiana as required by Ind. Code § 14-28-1 (sometimes referred to as the “Flood Control Act”) and rules adopted at 312 Ind. Admin. Code § 10 to assist with implementation of the Flood Control Act.  The subject permit is also governed by P.L. 180-1995.  “Report of Initial Prehearing Conference and Notice of Telephone Status Conference”.

 

2. Robert Justice, Joseph I. Hizer, and Lake County Trust #5968 (collectively the “Claimants”) petitioned for administrative review under IC 4-21.5  (the “Administrative Orders and Procedures Act” or “AOPA”) and 312 IAC 3-1, rules adopted to assist with implementation of AOPA, by the Natural Resources Commission (the “Commission”) from issuance of the subject permit.  The DNR and the Fulton County Surveyor are collectively the “Respondents”.  The Claimants and the Respondents are collectively the “Parties”.  Each of the Parties is represented by an attorney or is an attorney acting on his own behalf.

 

3. The Commission is the “ultimate authority” under AOPA for DNR permitting decisions under the Flood Control Act and 312 IAC 10.  Roshek v. Mader Dental, 12 Caddnar 251 (2010).[1]  IC 4-21.5-15 and IC 14-10-2-4.  An administrative law judge was appointed to conduct the proceeding under IC 14-10-2-2.

  

4. The Commission has jurisdiction over the subject matter and over the persons of the Parties.

 

5. The “Claimants’ Joint Motion for Summary Adjudication” and “Memorandum of Law in Support of Claimants’ Motion for Summary Judgment”; the Fulton County Surveyor’s “Memorandum of Law in Opposition of Claimants’ Joint Motion for Summary Adjudication”; and the “Reply in Support of Claimants’ Motion for Summary Judgment” filed and served consistently with a “Modification to Schedule for Review of Summary Motions in Report of Fifth Telephone Status Conference”.  The DNR elected not to participate in summary judgment.

 

6. The proceeding is ripe for disposition upon summary judgment.

 

Standards for Summary Judgment under AOPA

 

7. IC 4-21.5-3-23 governs summary judgment under AOPA and provides:

 

    (a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding.
    (b) Except as otherwise provided in this section, an administrative law judge shall consider a motion filed under subsection (a) as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.
    (c) Service of the motion and any response to the motion, including supporting affidavits, shall be performed as provided in this article.
    (d) [IC 4-21.5-3-28 and IC 4-21.5-3-29] apply to an order granting summary judgment that disposes of all issues in a proceeding.

 

8. As applied to a Commission proceeding under AOPA, Trial Rule 56 of the Indiana Rules of Trial Procedure provides:

 (A) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty [20] days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(B)   For defending party--When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the [Commission] may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.

(C)   Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The [administrative law judge] may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the [administrative law judge] shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the [administrative law judge] all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the [administrative law judge] each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the [Commission] in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The [Commission] shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the [Commission] shall make its determination from the evidentiary matter designated to the [Commission].

(D)  Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the [administrative law judge] at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

 

[VOLUME 13, PAGE 277]

 

(E)   Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.

(F)   When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the [Commission] may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(G)  Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the [Commission] shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.

(H)  Appeal-Reversal. No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the [administrative law judge].

(I)    Alteration of Time. For cause found, the [administrative law judge] may alter any time limit set forth in this rule upon motion made within the applicable time limit.

 

9. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.”  Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).

 

10. Summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990).

 

11. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.”  Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993).  “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.”  York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).

  

12. In an AOPA proceeding, a party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing.  Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001).  See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).

 

13. Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue.  Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).

 

Undisputed Facts

 

14. The activities authorized by the subject permit are located in part within Fulton County and in part within other Indiana Counties.  “Report of Fifth Telephone Status Conference”.  Those other than Fulton County include Pulaski County, Cass County, and White County.  “Memorandum of Law in Opposition of Claimants’ Joint Motion for Summary Adjudication”.

                                                                                                     

15. The Indian Creek Joint Drainage Board was dissolved subsequent to DNR issuance of the subject permit.  “Report of Fifth Telephone Status Conference”.  The Indiana Creek Joint Drainage Board was disbanded on March 6, 2014.  “Claimants’ Joint Motion for Summary Adjudication”, Exhibit B.  Although expressing a wish to form a new joint board, the Fulton County Surveyor does not dispute that “[t]here is currently no joint drainage board since the Indian Creek Joint Drainage Board disbanded.”  “Memorandum of Law in Opposition of Claimants’ Joint Motion for Summary Adjudication”.

 

Coordination of the Flood Control Act and the Drainage Code

                                                          

16. The constituency and administration of a drainage board are outside the jurisdiction of the Commission and rest instead with judicial review by a circuit or superior court.  The Pulaski Circuit Court exercised judicial review with respect to the former Indian Creek Joint Drainage Board in Joseph I. Hizer v. Indian Creek Joint Drainage Board, Case Number 66C01-1107-MI-018 and entered an “Order on Bench Trial” on May 17, 2013.[2]   But IC 36-9-27 (sometimes referred to as the “Drainage Code”), which is administered through drainage boards, and the Flood Control Act may both apply to a construction activity on a watercourse.

 

17. The Drainage Code can run at cross-purposes to the Flood Control Act.  “The Drainage Code is administered at the local level and seeks to assure an adequate provision for drainage.  The Flood Control Act is administered at the state level and seeks to assure the protection of health, safety, and environmental concerns.”  DNR v. Porter County Drainage Bd., 576 N.E.2d 587 (Ind. 1991) considered these cross-purposes and determined an ambiguity in prior wording of IC 14-28-1-22(b)(1) should be interpreted to grant environmental oversight to the DNR for streams longer than ten miles rather than to exempt a drainage board from the Flood Control Act.  Inland Marina, Inc. v. DNR, 9 Caddnar 188, 189 (2004).

 

18. In the wake of DNR v. Porter County Drainage Bd., the Indiana General Assembly enacted P.L. 180-1995 to coordinate a drainage board’s implementation of the Drainage Code with the DNR’s implementation of the Flood Control Act.  “A sight view was required in advance of licensure action to involve a ‘team’ consisting of representatives of the drainage board, the DNR, the Department of Environmental Management, and, if applicable, a local soil and water conservation district.  IC 36-9-27-53.5.  “A drainage board enjoys expertise in understanding when maintenance or reconstruction of a regulated drain is needed, and exercise of the expertise is tempered” by DNR experience with the Flood Control Act.  Inland Marina at 190.

 

19. Through P.L. 180-1995 and IC 36-9-27-53.5, a drainage board was shielded from the exercise of some DNR regulatory authority for projects subject to the Flood Control Act.  For a project for the reconstruction or maintenance of a regulated drain, the DNR cannot include permit terms that include deed restrictions or conservation easements, and parameters are set for terms pertaining to tree planting and retention.  IC 36-9-27-53.5(e).

 

Agent for Drainage Board

 

20. To exercise the opportunities afforded by P.L. 180-1995, a drainage board may select an agent.  A drainage board may select a county surveyor as its agent for planning and implementation.  IC 36-9-27-53.5(a).  A drainage board may select a private consultant as its agent.  Inland Marina at 188.  Only a drainage board or the agent for a drainage board may exercise the opportunities afforded by P.L. 180-1995.  Inland Marina at 190.

 

[VOLUME 13, PAGE 278]

 

21. The Fulton County Surveyor asserts on page 3 of the “Memorandum of Law in Opposition of Claimants’ Joint Motion for Summary Adjudication” that IC 14-28-1-29(b) qualifies him as an “interested party” to obtain the subject permit.  The assertion is misdirected.  Subsection (b) identifies requirements to apply for a permit under the Flood Control Act but does not identify what persons may appropriately receive a permit.[3]

 

22. With dissolution of the Indian Creek Joint Drainage Board on March 6, 2014, P.L. 180-1995 became inapplicable to the subject permit.  The Fulton County Surveyor cannot serve as the agent for a principal which no longer exists.[4]

 

Application of Summary Judgment

 

23. There is no genuine issue of material fact, and the Claimants are entitled to judgment as a matter of law.  With dissolution of the Indian Creek Joint Drainage Board, the Fulton County Surveyor can no longer be its agent.  An entity no longer exists that qualifies to receive the opportunities afforded by P.L. 180-1995. 

 

24. With dissolution of the Indian Creek Joint Drainage Board, the circumstances on which the DNR issued the subject permit changed materially.  The subject permit must be rescinded.[5]

 

25. The basis for rescission of the subject permit does not address the substantive merits.  A reconstituted Indian Creek Joint Drainage Board or another joint drainage board should not be precluded from applying to the DNR for a permit under the Flood Control Act to conduct activities that are similar or identical to those authorized by the subject permit.