[CITE: Marshall Co. Drainage Bd. v. DNR, 1 CADDNAR 32 (1981)]
[VOLUME 1, PAGE 32]
Cause #: 81-022W
Caption: Marshall Co.
Drainage Bd. v. DNR
Administrative Law Judge: Clayton
Attorneys: Marshall Co., pro se; Habeeb, DAG; Hart,
Koontz Lake
Date: November 25, 1981
ORDER
[NOTE: THIS CASE WAS UPHELD
ON JUDICIAL REVIEW. STARKE CIRCUIT COURT ENTRY FOLLOWING ADMINISTRATIVE
FINDINGS.]
...The
Natural Resources Commission issues and adopts the following ORDER: That the
administrative hearing requested by Marshall County Drainage Board by letter
dated July 10, 1981, regarding Permit #DR 100/PL 8168 Revised, be and is hereby
dismissed for lack of subject matter jurisdiction and as a matter not properly
before the Commission for administrative hearing. Judicial review was taken by
the Marshall County Drainage Board and the action venued
to the Starke Circuit Court. On May 23, 1982, the determination by the Natural
Resources commission was affirmed according the Starke Circuit Court decision
which follows the Natural Resource Commission's Findings of Fact.
FINDINGS OF FACT
1.
At its regularly scheduled meeting on October 21, 1980, the Natural Resources
Commission approved an application by the Marshall County Drainage Board for a
permit to reconstruct Lawrence Pontius Ditch in Marshall County. Among the
restrictions included in the approved permit were the restrictions that:
(1)
The reconstruction not come within a distance of
approximately 325 feet of the main body of Koontz Lake,
(2)
No excavated material be placed lakeward of the
shoreline of Koontz Lake.
2.
An inspection by the Department during the reconstruction work revealed that
the permittee, Marshall County Drainage Board, had
not complied with the terms of its approved permit in that the reconstruction
work had extended the 325 feet into the main body of Koontz Lake. In further
violation of the permit, excavated material had been placed within the
shoreline of the lake.
3.
On June 24, 1981, the permittee appeared before the
Natural Resources Commission to request that the Commission grant an
"after-the-fact" approval of their unauthorized reconstruction and
channelization into Koontz Lake.
4.
At said June 24, 1981, Commission meeting, the Commission heard comments from
the permittee and Department staff before ordering
the permittee to comply with the conditions of its
original permit issued October 21, 1980, and ordering that the channel and
wetland be restored within 90 days.
5. By letter dated July 10, 1981, Frank E. Kleinke,
Surveyor, Marshall County Drainage Board sought an appeal of the June 24, 1981,
action of the Natural Resources Commission and asked that an administrative
hearing be conducted on such appeal.
6.
On July 23, 1981, at its regularly scheduled meeting, the Commission appointed
the undersigned Hearings commissioner to conduct such hearing.
7.
On September 11, 1981, Henry R. Hart, Attorney for Koontz Lake Association,
Inc. filed a "Petition for Intervention" in the appeal filed by
Marshall County Drainage Board. Such petitioner, if granted, would establish
Koontz Lake Association, Inc. as a party to the administrative hearing.
8. Said
petition has not been acted upon, since it is the opinion of the undersigned
that the hearing of this matter should be dismissed for the reasons set out
below.
9.
Marshall County Drainage Board's appearance before the Commission on June 24,
1981, was not as a matter of right. The permittee, at that point was already in violation of the conditions
of its permit and was subject to the enforcement capabilities of the
Department. The permittee appeared before the
Commission, not as an applicant for an original permit, but rather, as a permittee asking the Commission to reconsider a
determination it had previously made. In effect, the permittee
asked the Commission to "right its wrong" for it. The Commission's
willingness to hear the request of the permittee was
purely a gratuitous gesture on the part of the Commission.
10.
Therefore, the Commission's June 24, 1981, reaffirmation of the original permit
conditions was not an action by the Commission from which a lawful appeal may
be taken. Pursuant to IC 4-22-1...it is the "final order or
determination" of an administrative agency which is appealable through the
administrative hearing process. The final action by the Commission on the
permit issued to Marshall County Drainage Board occurred on October 21, 1980.
[VOLUME 1, PAGE 33]
Although the permittee might have appealed the
conditions of its permit by requesting a hearing within 15 days of notice, no
such appeal was sought. By failing to timely appeal the conditions placed upon
its permit in October 1980, permittee waived and
forever lost its right to object to and complain of those conditions. Instead
of pursuing a lawful appeal of those permit conditions it found objectionable,
it appears that the permittee, instead, elected to
violate those conditions.
11.
If an appeal were allowed in such an instance as this, the enforcement powers
of the Department could be thwarted and circumvented. It would allow one who
objects to the conditions of a permit, (or any other decision of the
Commission) to ignore the lawful appeal process, proceed to violate the
Commission's decision, and then if caught, simply ask for a
"reconsideration" in hopes that the Commission would reverse its
prior decision. The permittee's appeal from such a "reconsideration" would then stay the
Department's enforcement of the Commission's original order until after the
administrative hearing and any court review. Such a procedure is regarded by
the undersigned as an intolerable dilution of the agency's ability to enforce
its orders and decisions.
12.
In further support of the recommendation to dismiss this appeal, the March 14,
1981 decision of the Indiana Court of Appeals in Dale Bland Trucking, Inc. v. Calcar Quarries,
Inc., 417 N.E.2d 1157, is cited. In that case the court spoke of an
agency's authority to reconsider its prior decision: "We believe that the
eventual finality of administrative decisions is indispensable to the interests
of fair and impartial regulation. Certainly, public policy demands that at some
point in time every proceeding whether administrative or judicial becomes final
and dispositive so that both the parties and the public may rely thereon. While
the inherent power of an administrative agency to reopen and reconsider a final
decision has been recognized in other jurisdictions, that
power has never been deemed interminable. Rather, courts have evinced a concern
that such authority be invoked within some reasonable period of time. A
reasonable time period has found to be at least reasonable period of time. A
reasonable time period has found to be at least co-extensive with the time
allowed by the controlling statute for review...We find our sister states'
interpretation of 'reasonable time' as co-extensive with the time of review to
be both logical and practicable."
13.
The "time for review" of the Commission's original decision in this
instance was the 15 day period within which the Marshall County Drainage Board
might have sought an administrative hearing and any subsequent judicial review
thereof. That time period has long since elapsed.
14.
It is true that by letter dated June 29, 1981, the Department advised the permittee that it might appeal the Commission's June 24,
1981, denial of "after-the-fact" approval. However, it is well
settled that whether or not an issue is properly before an agency is a question
of subject matter jurisdiction which the agency itself must determine. Am Jur. Admin.
Law 327, 332. Therefore, whether a matter is properly
before an administrative hearing officer is a question of jurisdiction which
must be determined by the Commission.
15.
Jurisdiction cannot be acquired by estoppel or
consent. C.J.S., Public Adm. Bodies and Procedures, 116.
16.
The fact that a letter from the Department advised the permittee
of an appeal right is of no legal consequence. Jurisdiction cannot be conveyed
where no jurisdiction exists. The Commission is not estopped
to dismiss this appeal by the misstatements contained in the June 29, 1981,
letter. Middleton
Motors, Inc. v. Indiana Department of State Revenue, Gross Income Tax Division,
380 N.E. 2d 79, (1978).
17....[T]he
appeal filed by Marshall County Drainage Board by letter dated June 29, 1981,
does not constitute a matter which is lawfully and properly before the Natural
Resources Commission for administrative hearing under IC 4-22-1.
_____________________________________________________________
[NOTE: CADDNAR citation does not apply to the Starke Circuit Court entry.]
Starke Circuit Court
Findings of Fact and Decision
The Court
adopts the findings of fact contained in the "Hearing Commissioners"
Report, Recommended Findings of Fact, Conclusions and Order" attached to
the November 25, 1981, Order of the Natural Resources Commission. The Court
does not adopt the legal conclusions or agreements therein. Respondent,
Department of Natural Resources, complains that notice was served on an
improper person. The Court finds that notice was served on the same chairman
who signed the order from which the appeal was attempted to be taken. That is
good service. The Final Order of Respondent granting petitioner a permit was
issued 10-21-80. This order contained restrictions and was the order from which
Petitioner could have appealed. No appeal was taken. Petitioner has not shown
the Court any statute granting the right to file a later petition for
reconsideration or an after-the-fact permit. If the Respondent had a right to
reconsider, it would be purely a discretionary one and non-appealable. The
Court now sustains the Respondent's Motion to Dismiss
on the ground that the Petitioner's Verified Petition for Judicial Review does
not state a claim upon which relief can be granted. Due to the nature of this
particular review and the pleadings herein, the true controversy between the
parties cannot be decided. Said controversy being "which party actually
has jurisdiction over the cleaning of the area involved."
[signed]
Marvin
D. McLaughlin, Judge, Starke Circuit Court