[CITE: Walton League v. Cedar Creek D.B. & DNR, 2 CADDNAR 3 (1985)]
[VOLUME 2, PAGE 3]
Cause #: 84-021W
Caption: Walton League v.
Cedar Creek D.B. & DNR
Administrative Law Judge: Shadley
Attorneys: Hurley; Kruse; Habeeb, DAG
Date: November 21, 1985
ORDER
The
Department of Natural Resources' Motion for Summary Decision in favor of
Respondents is granted, and this cause is dismissed with prejudice.
FINDINGS OF FACT
1.
On July 20, 1983, the Indiana Division , Izaak Walton
League of America, Inc. ("Izaak") gave
notice of their intent to maintain an action for declaratory and equitable
relief in the name of the State of Indiana ("Notice of Intent")
against the Cedar Creek Drainage Board ("Drainage Board") and the
Department of Natural Resources ("Department") pursuant to IC
13-6-1-1.
2.
On December 28, 1983, the Director of the Department responded to the Notice of
Intent and provided Izaak with the opportunity for a
hearing on the Department's determination.
3.
On January 13, 1984, Izaak requested a hearing to
review the Department's December 28, 1983 determination.
4.
Pursuant to IC 14-3-3-21, the Natural Resources Commission has jurisdiction
over the subject matter and parties to this cause.
5.
On November 15, 1984 the Natural Resources Commission appointed Sue A. Shadley
Administrative Law Judge for the purpose of conducting this hearing and making
a recommendation to it.
6.
In its January 13, 1984 request for hearing, Izaak
requested the hearing be delayed until it was determined whether an amicable
solution could be worked out among all of the parties.
7.
On January 16, 1985, the Administrative Law Judge ordered the parties submit a
status report and indicate what action was necessary to reach a final
resolution of this administrative cause.
8.
On August 30, 1985, Respondent, Drainage Board, filed a Motion to Dismiss,
arguing the issues have been made moot.
9.
On October 9, 1985, Respondent, Department, concurred in the Drainage Board's
Motion to Dismiss or alternatively moved for summary judgment pursuant to 310
IAC 0.5-1-11, arguing the issues are moot and Claimant is barred by the
doctrine of laches.
10.
The Notice of Intent revolves around P.L. 381-1983, appropriation of funds, and
the May 18, 1983 Findings and Order of the Drainage Board, wherein the drainage
board would use the appropriated funds to do periodic maintenance, as defined
in IC 36-9-27-34 (c), of the Cedar Creek regulated drain which Izaak believes will adversely [sic. significantly pollute,
impair or destroy a portion of the Cedar Creek which has previously been
designated a natural, scenic and recreational river and parcels of land
adjoining the Cedar Creek which have been previously dedicated as Indiana
Nature Preserves. It is Izaak's belief that the
following statutes are being or will be violated by the Department and Drainage
Board: IC 13-1-10 (Environmental Policy Act); IC 14-4-5 (Nature Preserves Act);
IC 13-2-26 (Natural, Scenic and Recreational River Systems Act); IC 36-9-27
(County Drainage Board Act); Section 404 of the Federal Water Pollution Control
Act Amendments of 1972; Section 10 of the Rivers and Harbors Act of 1899; and,
42 U.S.C. 4321 et seq. (National
Environmental Policy Act).
11.
The Notice of Intent specifically alleges the Department has failed to carry
out and protect any and all of the designated purposes and policies of the
Natural, Scenic and Recreational Rivers Act and unlawfully cooperated with
Drainage Board in supporting the inclusion of the Cedar Creek maintenance
project in the appropriation of funds enacted by the 1983 General Assembly
without an Environmental Impact Statement.
12.
The Department's December 28, 1983 determination was that it: (a) did not
violate IC 13-1-10-1 and rule 320 IAC 2-1-3(2)(a)(i), requiring preparation of an
[VOLUME 2, PAGE 4]
environmental
assessment to determine if an environmental impactment
statement is required before proposing legislation because it took no part in
the inclusion of the Cedar Creek maintenance project in the appropriation of
funds enacted by the 1983 session of the Indiana General Assembly, and (b)
conducted an investigation which disclosed no evidence to support a conclusion
that pollution [sic. significant pollution, impairment or destruction] of Cedar
Creek the surrounding environment was about to take place.[FOOTNOTE i]
13.
On December 29, 1983, the Dekalb Superior Court in Gretal H. Smith et al vs. Cedar Creek Drainage Board, Cause
No. CV 83-160 ordered, adjudged and decreed that the Cedar Creek Joint Drainage
Board was jurisdiction over the Cedar Creek drain under the Indiana County
Drainage Law and that the Findings and Final Order of the Cedar Creek Drainage
Board comply with the Indiana Natural, Scenic and Recreational Rivers statute
and all applicable environmental and water resource statutes as applied to the
Cedar Creek drain.
14.
The Department has either paid or approved the payment of all funds
appropriated under P.L. 381-1983 for the Cedar Creek.
15.
The issue concerning preparation of an environmental assessment of the proposed
legislation is now moot.
16.
The Dekalb Superior Court has adjudicated the legal
issues involved in the Drainage Board's maintenance of the Cedar Creek drain
and compliance with the Indiana Natural Scenic and Recreational Rivers Statute
and all applicable environmental and water resource statutes as applied to the
Cedar Creek and decreed that the Drainage Board's Order was in compliance with
those laws.
17.
The Department's December 28, 1983 determination that no evidence to support a
conclusion that pollution of Cedar Creek or the surrounding environment was
about to take place is a proper determination.
18.
Even if the Department's December 28, 1983 determination that no evidence to
support a conclusion that pollution of Cedar Creek or the surrounding
environment was about to take place had not been proper, that issue is now
moot.[FOOTNOTE ii]
FOOTNOTES
i.
Izaak raises a number of other issues they desire be determined as part of the hearing on review of the
Department's December 28, 1985 determination. Those issues, if not answered by
the Dekalb Superior Court decision, are moot.
ii. Izaak has filed a request to amend its response
to the Administrative Law Judge's Order for Status Report to include as an
issue whether the Drainage Board's plans to do continuing maintenance could
result in further damage to Cedar Creek. This issue Izaak
believes makes this controversy not moot. This issue is however, a new issue
not one which the Department was put on notice of in the original Notice of
Intent, and this not one which was addressed in the Department's initial
determination of December 28, 1983. This hearing is for the purpose of
reviewing that December 28, 1983 determination. New issues are not properly
raised in this proceeding but could be the subject of a new Notice of Intent.
The purpose of IC 13-6-1 is to allow citizens, when necessary, the right to
bring an action for declaratory and equitable relief in the name of the state
of Indiana against anyone who is about to cause or allow to result significant
pollution, impairment or destruction of the environment. It is not the purpose
of this