Respondent's motion for Summary judgment on all issues is granted.
FINDINGS OF FACT
1. On February 1, 1988 Mr. Jeffery Stant representing the Hoosier Environmental Council ("HEC") requested an administrative review of the January 15, 1988 Natural Resources Commission decision to negotiate exclusively with Patoka Partners for the extensive development of the Tillery Hill Peninsula at Patoka Reservoir.
2. HEC later amended its request for review by listing eleven issues[FOOTNOTE 1] it felt were ripe for review. The administrative law judge eliminated issues number 10 and 11 as being remedies sought rather than issues to be adjudicated.
3. IC 4-21.5 applies to this proceeding.
4. The Natural Resources Commission (the "Commission") is an agency as defined in IC 4-21.5-1-3. The Commission is the ultimate authority with respect to this proceeding.
5. Respondent requested summary judgment on all issues under IC 4-21.5-3-23. Claimant did not contest this request as to issue number 5.
6. IC 4-21.5 the Administrative Adjudication Act (AAA) provides for administrative review of an agency's performance of, or failure to perform, any duty, function or activity covered by the AAA if such review is requested by a person with standing to do so under IC 4-21.5-3-7.
7. Under IC 4-21.5-3-7(a)(1)(B), HEC is qualified to request review of actions of the Commission that might have an impact on the environment.
8. The petition filed by HEC on February 1, 1988 requested an administrative review of an agency action taken by the Commission on January 15, 1988 which HEC claimed was a decision to negotiate exclusively with Patoka Partners for the exclusive development of the Tillery Hill Peninsula at Patoka Reservoir. The amendment filed by HEC on April 29, 1988 presented the issues in question here (1 through 4 and 6 through 9) as flowing from the original agency action of January 15.
9. The minutes of the January 15, 1988 Commission meeting show the Agency Action to be as follows: "the present proposal submitted by Patoka Parners [sic] as the development group for Tillery Hill only identifies the developer with whom the Department is to work. Subsequently, the Commission will review the planning and design, financing and contractual arrangements as they become necessary ... After discussion, Dr. Schmelz made a motion that the Commission designate Patoka partners as the development group for Tillery Hill. Mr. Werner seconded the motion and it passed unanimously."
10. Based on the above minutes, the Respondent contends that the only agency action taken by the Commission was to designate Patoka Partners as the development group for Tillery Hill.
11. Another relevant portion of the January 15, 1988 minutes relied on by the Respondent states that in the future the Commission will review planning and design, financing and contractual arrangements. This lends credence to the Respondent's argument that these areas are not yet ripe for review.
12. The Claimant's issues in question all challenge aspects of a "Tillery Hill Project". For this challenge to be effective there must be an agency action that creates the elements of a "Tillery Hill Project".
13. The evidence shows that the only agency action ripe for review is the designation of Patoka Partners as the developer.
14. The Claimants issues do not relate to any agency action yet taken; and therefore are not generally in dispute nor ripe for review under the AAA.
15. Subsequent
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decisions by the Commission that create elements of a "Tillery Hill project" would at that time be reviewable under the AAA.
16. Since the Claimant's issues are not reviewable due to the lack of an agency action, the alternate grounds for summary judgment presented by the Respondent are not addressed here.
FOOTNOTE 1
1. Whether the National Environmental Policy Act of 1969 (NEPA), 42 USC sections 4321 et. seq., requires an Environmental Impact Statement on the separate Tillery Hill project, in addition to the Environmental Statement issued February 4, 1971 on the Patoka Lake project.
2. Whether NEPA requires an Environmental Impact Statement on Tillery Hill because there was no public participation in the Environmental Statement issued February 4, 1971.
3. Whether the Tillery Hill project might have the effect of significantly impairing, polluting, or destroying the environment of Indiana, in contravention of Indiana Code section 13-6-1-1.
4. Whether the Tillery Hill project is in the best interests of all the citizens of Indiana, as required by Indiana Code sections 14-3-8-2 and 14-3-9-2.
5. Whether the Indiana Department of Natural Resources (IDNR) published at least three legal advertisements appearing at ten-day intervals, during a thirty day period, in five daily newspapers of wide and general circulation in Indiana regarding IDNR's Prospectus and Statement of Intent For Development of Tillery Hill Marina/Lodge Complex at Patoka Lake, as required by Indiana Code section 14-3-8-4.
6. Whether the Tillery Hill project violates Article 5 of the Contract Between the United States of America and The State of Indiana For Recreation Development At The Patoka Dam And Lake Project, Indiana, executed October and November, 1970.
7. Whether the Tillery Hill project violates Article 15 of the aforementioned Contract.
8. Whether the Tillery Hill project violates the Patoka Lake lease between the United States and the State of Indiana, in that the lease allows the State to sublease Patoka Lake property only for purposes consistent with the terms and conditions of the federal-state Patoka Lake Master Plan issued May, 1976.
9. Relating to issue number 8 above, whether the Tillery Hill project goes beyond what was anticipated in the Patoka Lake Master Plan.
10. Whether all work on the Tillery Hill project, including preparation of a market analysis and feasibility study, must be stayed during pendency of the instant adjudication.
11. Whether contract execution between the State and a Tillery Hill developer must be stayed during the pendency of the instant adjudication.