CADDNAR

[CITE: Ogden Dunes v DNR, Beverly Shores and NIPSCO, 4 CADDNAR 31 (1987)]

 

[VOLUME 4, PAGE 31]

 

Cause #: 86-120W

Caption: Ogden Dunes v DNR, Beverly Shores and NIPSCO
Administrative Law Judge: Lucas

Attorneys: Buls; McInerny, DAG; Livarchik and Morse
Date: July 28, 1987

ORDER

 

Administrative action is dismissed with prejudice as Permit LM-44 has expired.

FINDINGS OF FACT

 

1. The Department of Natural Resources (the "Department") is an agency as the term is defined in IC 4-22-1.

 

2. The Natural Resources Commission (the "Commission") is the ultimate authority under IC 4-22-1-2.2 for the Department with respect to the entry of an order under IC 14-3-1-14 (9) and IC 14-3-1-14.5. [See IC 4-3-3-21(a) ]

 

3. The state of Indiana has title to the lands located within the boundaries of the state and beneath Lake Michigan, a navigable waterway, up to the ordinary high water mark of Lake Michigan.[[FOOTNOTE i]

 

4. At issue in this administrative action is revision #2 made to Docket Number LM-44 by action of the Commission during its regular monthly meeting in August 1986 ("Revision #2".) [See Pre-hearing Report, stipulation 2.]

 

5. The authority for issuance of Revision 2, if Revision 2 was properly issued, is found under IC 14-3-1-14 (9) and IC 14-3-1-14.5. Other statutory provisions may affect how IC 14-3-1-14 (9) and IC 14-3-1-14.5 should be applied. [See Pre-hearing Report, Stipulation 4.]

 

6. Revision 2 was issued for an area located in Indiana within the ordinary high water mark of Lake Michigan. [See Pre-hearing Report, stipulation 4.]

 

7. On March 12, 1987, the Town of Ogden Dunes filed in this administrative action its "Motion for Summary Judgment." The motion contended the Town of Ogden Dunes was entitled to a judgment as a matter of law on either of two grounds:

 

(a) Permit LM-44 "has expired both in duration and scope of work authorized and cannot be reinstated by a proposed revision thereto"; or

(b) "The works, workings, and operations under the proposed permit would damage or endanger down drift riparian owners."

 

8. On March 19, 1987, the administrative law judge by written entry converted the Motion for Summary Judgment described in finding 7 to a motion for summary decision under 310 IAC 0.5-1-11.

 

9. Permit LM-44 was issued by the Commission on May 26, 1982 under IC 14-3-1-14 (10), a subsection which provided within subpart (E) "that, subject to suspension or revocation, the permit shall remain in force for such period as the [D]epartment may determine, not to exceed five (5) years from the date thereof; however, the permit shall be renewable to permittee by written application filed with the [D]epartment six (6) months prior to expiration of such permit."

 

10. The 1983 Indiana General Assembly amended IC 14-3-1-14 to remove subsection 10 of that section and to establish a new section (IC 14-3-1-14.5) to incorporate the substance of what had formerly been included within IC 14-3-1-14 (10). That amendment was made effective September 1, 1983. [Public Law 166-1983]

 

11. The pertinent portion of IC 14-3-1-14.5 (d) currently provides that "[s]ubject to suspension or revocation, the permit will remain in force for such period as the [D]epartment may determine, not to exceed five (5) years from the date thereof; however, the permit may be renewed by the permittee by written application filed with the [D]epartment six (6) months before expiration of the permit."

 

12. IC 14-3-1-14 (10) which was effective before September 1, 1983, and IC 14-3-14.5 (d) which became effective on that date, have the same meaning. A permit issued under either subsection is effective for not more than five (5) years from issuance, unless a renewal is requested by the permittee at least six (6) months before expiration and the Department grants the renewal request.

 

13. Permit LM-44 was "granted for a period of five (5) years" from issuance on May 26, 1982.

 

14. In its "Memorandum of Northern Indiana Public Service Company in Response to Motion for Summary Judgment" filed in this administrative action on April 27, 1987, the permittee, Northern Indiana Public Service

 

[VOLUME 4, PAGE 32]

 

company, stated that the company "is willing for purposes of this proceeding to consider its permit as having expired."[FOOTNOTE ii]

 

15. Permit LM-44 expired on May 22, 1987.

 

16. Permit LM-44 authorized the Northern Indiana Public Service Company to remove approximately 250,000 cubic yards of material. Revision 2 (or Revision 1) of Permit LM-44 authorized the company to remove an additional 200,000 to 250,000 cubic yards of material from the site.

 

17. Northern Indiana Public Service Company has been authorized by Permit LM-44 (including its revisions) to remove approximately 500,000 cubic yards of material from the bed of Lake Michigan.

 

18. Northern Indiana Public Service Company h ad removed approximately 538,000 cubic yards of material from the site under Permit LM-44.

 

19. The scope of Permit LM-44 has been exhausted.

 

20. Permit LM-44 has expired both in duration and scope of work authorized.

 

21. The Town of Beverly Shores argues in its "Memorandum of the Town of Beverly Shores to Motion for Summary Judgment" filed on April 27, 1987, and during oral argument on May 12, 1987, that the substantive issues presented by this administrative action would not be mooted by the expiration of Permit LM-44.

 

22. An issue is moot if the issue is " no longer "live" or when the parties lack a legally cognizable interest in the outcome'" of that issue. [Bartholomew County Hospital v. Ryan (1982), Ind. App., 440 N.E. 2d 754, 757, quoting United States Parole Commission v. Geraghty (1980), 445 U.S. 388, 396.]

 

23. A general application of the doctrine of mootness would preclude a determination of the substantive issues raised by this administrative action since Permit LM-44 has expired. Permit LM-44 is no longer "live."

 

24. The "public interest exception" is a deviation from the general application of the doctrine of mootness.

 

25. The public interest exception " may be invoked only upon the confluence of three elements: the issue involves a question of great public importance which is likely to recur in a context which will continue to evade review.'" [Ridenour v. Furness (1987), Ind. App., 504 N.E. 2d 336, 342, quoting Bartholomew at 759.]

 

26. The first element of the public interest exception is satisfied: the question is one of great public importance. The Town of Ogden Dunes and the Town of Beverly Shores contest the placement of materials to be removed during excavations from the bed of Lake Michigan b y Northern Indiana Public Service Company. The placement of these materials may affect significantly beach erosion problems experienced along the Lake Michigan shoreline by both municipalities and the residents of those municipalities.[FOOTNOTE iii]

 

27. The second element of the public interest exception is satisfied: the issue is likely to recur.[FOOTNOTE iv]

 

28. The third element of the public interest exception is not satisfied: the issue is not likely to continue to evade review.[FOOTNOTE v]

 

29. The public interest exception to mootness does not apply to this administrative action.

 

30. With the expiration of permit LM-44 as described in paragraph 20, this administrative action is made moot.

FOOTNOTES

 
i. This finding was stipulated by the parties and set forth in the Report or Pre-hearing Conference and Order for Discovery dated September 17, 1986 (the "Pre-hearing Report"). Support for the Finding is also found in Garner v. City of Michigan City, 453 F. Supp. 33, 35 (N.D. Ind. 1978):

 

Congress, in 1953, enacted the Submerged Lands Act, whereby the federal government quit-claimed title to all lands beneath navigable waters within state boundaries to the various states, reserving in the federal government authority over such lands and waters for the purposes of navigation. See 43 U.S.C. Section 1301 et seq., especially 43 U.S.C., Section 1311 and 1312. By virtue of 43 U.S.C., Section 1301 (a) the State of Indiana acquired title up to the ordinary high water mark.

ii. Northern Indiana Public Service Company states in the April 27 Memorandum that "NIPSCO is of the opinion. . .Permit No. LM-44 Rev II remains valid through 1991," but elects not to pursue that stance in light of the motion for summary decision filed by the Town of Ogden Dunes, and conceded by the Department of Natural Resources [See "Respondent Department of Natural Resources' Response to Claimant's Motion for Summary Judgment" filed April 27, 1987], asserting that the permit has expired. The respondent intervenor, Town of Beverly Shores, argues that a letter from NIPSCO to a Division of Water employee dated June 27, "although designated as a revision'" constitutes the requisite renewal request. The Town of Beverly Shores does acknowledge that this position "has been clouded by NIPSCO's concession" contained in its Memorandum. Beverly Shores goes on to contend "that it has a sufficient interest in the sand being dredged to have standing before the Department of Natural Resources in the permit proceeding." [See "Memorandum of the Town of Beverly Shores in Response to Motion of Summary Judgment" filed April 27, 1987]

 

[VOLUME 4, PAGE 33]

 

An undue hardship might be imposed upon an individual or company which elects not to argue qualifications for a permit renewal in the face of a procedural of technical contest by another party. Continued litigation might be costly and nonproductive to the renewal applicant, particularly if the alleged error can be cured through the preparation of a new permit application. Northern Indiana Public Service Commission should not be required to carry forward the battle as to whether Permit LM-44 was properly renewed. Standing by the Town of Beverly Shores to participate in an administrative determination of what the permit terms might be is not questioned. The legitimate interests of the Town of Beverly Shores are not dependent, however, upon whether sand is removed according to an amended permit or a new permit. Those interests are dependent upon the substance of whatever permit might be implemented.

 

iii. Arguments by counsel presented on May 12, 1987 illuminate the significance of any decision by the Natural Resources Commission concerning the placement of dredge materials taken from Lake Michigan: George R. Livarchik, attorney for the Town of Beverly Shores, urged: ". . .At the time of the Ogden Dunes [administrative] appeal [of Revision 2], Beverly Shores was experiencing a major threat from the erosive forces of Lake Michigan that was imminently likely to imperil Lake Front Drive and cause Lake Front Drive and some homes to fall into Lake Michigan. . . [A]n agreement was reached between the parties to this action that permitted some sand to be dumped at the Beverly Shores site that created a little Band-Aide effect, but it was sufficient help to at least preserve a part of Lake Front Drive until subsequent appropriations were made by the federal government to shore up the abutment of Lake Front Drive." Speaking as counsel for NIPSCO, James K. Morse, describes a resolution of issues presented by the placement of excavated materials as being "a very important and precedent setting decision in Indiana as to rights into a Lake Michigan lake bed." Norman R. Buls argued on behalf of the Town of Ogden Dunes: "The issue is. . .whether or not the works authorized. . .[by a permit damage] riparian owners. . .[T]his has to be the proper forum because the DNR is the only avenue, the only body, that can make the determination as to where that sand should be deposited once it is dredged. . ."

 

iv. Implicit to the arguments of counsel is that NIPSCO will need to resume excavations in the future. Although there is no direct evidence of this future contingency, the probability of a recurrence of the substantive issues raised in this administrative action was set forth clearly during the oral argument on May 12. Counsel for NIPSCO stated: ". . .Assuming that this case is mooted. . . , NIPSCO in the very near future, certainly by the end of this summer at the absolute latest, will be sitting down with the DNR and drafting new permit language and starting the permit process. We've already talked to counsel for DNR. . ., and we'll be putting that permit process underway. NIPSCO, barring any unforseen circumstances, does not intend to dredge again at the Bailey Station until at least 1989 and possibly not until 1990. . ."

 

v. The Town of Ogden Dunes and the Town of Beverly Shores may seek an administrative review of a future permit which may be sought by NIPSCO to remove materials from the bed of Lake Michigan. That review would not be conducted under the current administrative adjudication act (IC 4-22-1), but under a revised and recodification statutory article (IC 4-21.5) made effective July 1, 1987. One of the concerns raised by the Town of Beverly Shores in arguments presented on May 12, 1987 is with the "time delay that can be involved in the administrative hearing process." While this concern is not completely obviated by IC 4-21.5, the new article presents a more flexible approach to permit issuances. The automatic delay in the implementation of a permit which is apparently required under current law will no longer result.


[VOLUME 4, PAGE 34]

 

"If objections were filed [under IC 4-22-1] by. . .another affected person, there was authority suggesting that the effectiveness of a permit was automatically delayed until all procedural requirements were met and a final order was entered." [Kathleen Givens Lucas, "Administrative Adjudication--Revised and Recodified, "20 Ind. L. Rev. 1, 13 (1987) referencing Indiana Envtl. Management Bd. v. Town of Bremen (1984, Ind. App., 458 N.D. 2d 672] Under IC 4-21.5-3-5 (f), if both a petition for administrative review and a petition to stay are filed before a permit becomes effective, any part of the permit may be delayed for an additional 15 days while a preliminary hearing is conducted by an administrative law judge. Pursuant to IC 4-21.5-3-5 (h), the administrative law judge may stay the permit in whole or in part.