[CITE: Moody v. Johnson County Surveyor, 13 CADDNAR 162 (2013)]
[VOLUME 13, PAGE 162]
Cause #: 13-043W
Caption: Moody v. Johnson County Surveyor
Administrative Law Judge: Jensen
Attorneys: pro se (Moody); Young (Johnson County); Wells (DNR)
Date: March 26, 2013
[NOTE: ON APRIL 26, 2013, MOODY FILED FOR JUDICIAL REVIEW IN MARION SUPERIOR COURT, ENVIRONMENTAL UNIT, IN CAUSE NUMBER 49F12-1304-MI-015868]
FINAL ORDER OF DISMISSAL
On February 16, 2013, Claimant, Gary W. Moody (Moody), filed his original Petition for Administrative Review of Approval of Permit relating to FW-26927, which petition initiated the instant proceeding.
On March 5, 2013, the Respondent, Department of Natural Resources (Department), by counsel, Andrew J. Wells, moved to dismiss this proceeding on the grounds that the Claimant lacked standing to initiate the instant proceeding. On March 6, 2013, the Respondent, Johnson County Surveyor (Surveyor), by counsel, Roger A. Young, joined in the Department’s motion.
As a result of the Respondents’ motions to dismiss, the Claimant, Gary W. Moody (Moody) was issued a Notice of Proposed Dismissal wherein he was allowed, in accordance with Indiana Office of Environmental Adjudication v. Kunz, 714 N.E.2d 1190 (Ind. App. 1999) and Bieda v. B&R Development and DNR, 9 CADDNAR 1, (2001), to plead over.
Moody filed an amendment to his original petition on March 15, 2013, which was accepted. (Moody’s original petition for review filed on February 16, 2013 and his amendment to that original petition filed on March 15, 2013 are hereinafter collectively referred to as “Moody’s Complaint”.)
The Respondents followed with a renewal of their motions to dismiss, again maintaining that Moody failed to demonstrate his standing to initiate the instant proceeding.
At issue herein is the Department’s grant of FW-26927 to the Johnson County Surveyor. FW-26927 constitutes a “license”, as defined at I.C. 4-21.5-1-8 that is governed in certain respects by I.C. 4-21.5-3-5. A “license” is included within the class of authorizations that qualify as “orders”, as defined at I.C. 4-21.5-1-9(1). For a person to initiate a proceeding for administrative review of a license issued pursuant to I.C. 4-21.5-3-5, that person must:
…petition for review in writing that does the following:
(1) States 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.
A review of Moody’s Complaint reveals clearly that Moody is not the person to whom the order, FW-26927, is specifically directed and further Moody does not specify any law that entitles him to review of the order. Therefore, the remainder of this order will consider and discuss only whether Moody’s Complaint establishes him to be a person “aggrieved or adversely affected by the order” as specified at I.C. 4-21.5-3-7(a)(1)(B).
The Indiana Supreme Court considered the language of I.C. 4-21.5-3-7(a)(1)(B) in Huffman v. Indiana Office of Environmental Adjudication, et. al., 811 N.E.2d 806 (Ind. 2004). In that proceeding it was determined that to be aggrieved or adversely affected by an order, a person “must have suffered or be likely to suffer, in the immediate future, harm to a legal interest, be it pecuniary, property or personal interest” as a result of the order.
The motions to dismiss are appropriately considered as motions made under the Indiana Rules of Trial Procedure, Trial Rule 12(B)(6).
…a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be entitled to recover under any set of facts admissible under the allegations of the complaint.
Huffman, supra. It is necessary for the pleading to be considered in the “light most favorable” to Moody with every inference to be drawn in favor of Moody. Id.
In Huffman, the issue related to an alleged failure to consider “health risks to the residential use of contiguous property”, which was managed by Huffman, which management required her frequent presence on the property. The Indiana Supreme Court determined that “it was impossible for the OEA to tell what Huffman’s personal health claim was and whether it had any merit. Dismissing this claim was therefore “premature.” The precedent set forth in Huffman, has been followed by the Natural Resources Commission as required. Wawasee Property Owners, et al. v. Wawasee Real Estate & DNR, 11 CADDNAR 88, (2007); Centre Properties v. DNR, In re Hoosier Environmental Council, 10 CADDNAR 49, (2005).
In Centre Properties, it was determined that individuals who petitioned to intervene in an existing proceeding, who were also required to establish that they were “aggrieved or adversely affected by the order” at issue, had failed to sufficiently assert “harm to a legal interest” of any type. With respect to one intervention petitioner, HEC, it was determined that they had “not established any interest in this proceeding beyond those interests of the general public”. With respect to a second petitioning intervenor, Mahoney, the Natural Resources Commission stated, “Mahoney bases her claimed right to intervene on the potential for increased flood damage to her real property, which is located approximately two miles away from the site involved in application # FW-22, 170. Mahoney’s concerns are of a personal, property or pecuniary interest; however the issues raised are mere speculation unsupported by any definitive data.”
[VOLUME 13, PAGE 163]
In Wawasee, the Natural Resources Commission determined that certain Claimants contesting the Department’s issuance of a permit “are riparian owners who live either permanently or seasonally along the channel that would serve for ingress and egress from the piers to be authorized by the subject license.” On that basis the Claimants were deemed to possess standing.
A full review of Moody’s Petition offers no contention that a pecuniary or property interest will be impacted by the order. However, Moody contends that he maintains a personal interest in the order. It is insufficient that a person have simply a “personal interest” in issues associated with the order, the Huffman decision makes clear that the personal interest must be related to current or impending harm to a legal interest.
As relevant to Moody’s standing to initiate the instant proceeding, his original Petition states:
…I am hereby submitting this petition requesting review of the Certificate of Approval issued for Application No. FW-26927, that the approval be rescinded, and that such additional steps be taken as necessary in order to ensure compliance with the relevant laws and the concerns of the public.
I am making these requests as a person aggrieved by this agency action, as the author and circulator of, and signatory to, the Petition for Public Hearing on said application, and having testified in opposition to the project at the hearing in addition to submitting written statements. I have also made specific complaints and allegations involving this project which the agency has not addressed in its determination. As such, I am entitled under Indiana law to make this petition for review.
At pg.1 (emphasis added).
The fact that Moody availed himself of the statutorily afforded opportunity to seek and participate in the public hearing process does not create the personal legal interest necessary under I.C. 4-21.5-3-7(a)(1)(B). Moody’s original Petition, was for this reason deemed insufficient to establish his aggrieved or adversely affected status and Moody was afforded the opportunity to replead. See Notice of Proposed Dismissal.
Moody’s amended Petition is replete with references to “documents, communications and evidence submitted by Claimant” to the Department of Natural Resources. As relevant to standing, Moody refers to:
….an inventory of email communications with DNR since moving back to Indiana in 2003. Of the three-hundred-and-thirty (330) found, approximately one-hundred-five (105 are relevant to standing in this matter (many of which have documents, photographs, and other attachments; There have also been communications by mail and facsimile, as well as phone calls not necessarily logged by the parties). That period begins in 2008, after the June 7 flood disaster, when Claimant researched factors involved in the event including Johnson County’s system of “legal drains”, particularly Hurricane Creek, which is the largest legal drain that flows into Franklin. That study was announced to several DNR officials, including Director Robert E. Carter, Jr., on September 8, 2008.
Those messages extend up to March 1, 2013, nearly five years after I began researching local drainage, flooding and water quality issues.
Furthermore, DNR will find in its own records that Claimant has taken DNR’s own courses which it provides for those personally concerned with the issues of this case!
In addition, Claimant is a member of the Indiana Water Monitoring Council and sits on its Groundwater Focus Committee. As such, he has associated and communicated with various officials and staff from DNR as well as other agencies such as IDEM, US Geological Survey, etc.
At pgs. 6-7. Moody continues by describing similar communications with other state agencies, identifying his enrollment in additional educational opportunities, and explaining his current efforts to establish a non-profit organization focused on improving water quality and stream habitat, all in an effort to demonstrate his standing to initiate this proceeding as a person with a “personal interest”.
It is not disputed that Moody is personally interested in issues of water quality as a general member of society. On not one occasion, however, does the Moody Complaint contain an allegation that Moody will personally be impacted by the concerns he raises. Moody does not demonstrate that the impacts of the project authorized by FW-26927 will impact his property, his home, his health, his ability to enjoy the environment near the project site or in any other way impact his person either directly or indirectly. Consequently, Moody has failed to establish that he is “aggrieved or adversely affected” by FW-26927.
A number of decisions have been written since Huffman. In Save the Valley v. Indiana-Kentucky Electric Corp. and Indiana Department of Environmental Management, 820 N.E.2d 677 (Ind. Ct. App. 2005), the Indiana Court of Appeals determined that an association may be permitted to seek administrative review under I.C. 4-21.5-3 only if the “association’s standing is based on its members possessing standing to seek administrative review in their own right.” In that case, it was undisputed that individual members of Save the Valley were “aggrieved or adversely affected”, as set forth in Huffman, and as such Save the Valley possessed standing. Again, the Natural Resources Commission has appropriately applied this precedent to the consideration of disputes under its jurisdiction. Wawasee Property Owners, supra; Hoosier Environmental Council v. DNR and IP&L Company, 10 CADDNAR 252, (2006).
Moody offers that the Moody Complaint “is made on behalf of not only the Claimant, but also on behalf of twenty-nine other signatories to the petition” for public hearing. Amended Petition, pg. 2. First and foremost, Moody does not identify himself as an organization representing the interests of its members. Furthermore, Moody fails to identify the other 29 signatories to the petition or offer any allegation that they are “aggrieved or adversely affected” by FW-26927 such that they would be permitted to initiate this proceeding in their own right. In any event, the remaining 29 individuals did not sign Moody’s Complaint or indicate an intention to initiate a proceeding and Moody may not initiate a proceeding on behalf of other individuals.
In his amended Petition, Moody offers a variety of allegations against the Johnson County Surveyor. These allegations do not in any manner relate to Moody’s ability to establish standing and for this reason are not discussed herein.
Based upon the foregoing findings and conclusions, it is the determination of the administrative law judge that Moody has failed to establish his standing to initiate the instant proceeding.
The Administrative Law Judge, acting on behalf of the Natural Resources Commission, now enters a final order of dismissal against the Claimant, Gary W. Moody. A person who wishes to seek judicial review must file a petition in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.