Summary judgment is granted in favor of the Department of Natural Resources and in favor of Laswell Coal Company, Inc. and against Pandora Coal Company, Inc. consistent with the Findings of Fact. Issuance of permit U-00014 to Laswell Coal Company, Inc. to conduct surface coal mining operations under IC 13-4.1 and 310 IAC 12 is affirmed.
FINDINGS OF FACT
1. By letter dated November 30, 1988, Pandora Coal Company, Inc. ("Pandora") registered several grievances with the initial determination by the department of natural resources (the "Department") to issue a permit under IC 13-4.1 and 310 IAC 12 (collectively referred to as "Indiana SMCRA") in favor of Laswell Coal Company, Inc. ("Laswell"). The letter was subsequently construed as a request for administrative review.
2. The permit issued to Laswell under Indiana SMCRA was an authorization to conduct "surface coal mining operations" at the Buck Creek Mine in Sullivan County, Indiana and was designated as permit U-00014 (the "Laswell permit").
3. "Surface coal mining operations" are defined in IC 13-4.1-1-3(12)(A) to include "surface impacts incident to an underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect interstate commerce."
4. The Buck Creek Mine is an underground coal mine, but the Laswell permit is, strictly speaking, a permit to engage in surface coal mining operations.
5. By certified letter dated December 21, 1988, S & G Excavating, Inc. ("S & G Excavating") also requested administrative review of the Laswell permit.
6. The administrative review initiated by Pandora was designated as Administrative Cause Number 88-299R; and the review initiated by S & G Excavating was designated as Administrative Cause Number 88-304R. Stephen L. Lucas was appointed as the administrative law judge to conduct both proceedings under IC 4-21.5 (the "administrative adjudication act") and 310 IAC 0.6 (a rule adopted to assist in implementation of the administrative adjudication act before the Department).
7. A prehearing conference was scheduled in Administrative Cause Number 88-299R for December 19, 1988, but upon the motion of Pandora, the prehearing conference was continued until January 10, 1989.
8. On January 10, 1989, a prehearing conference was held as scheduled in Administrative cause Number 88-299R. Pandora was represented by its attorney, Mary M. Runnells. Laswell and S & G Excavating appeared by their respective attorneys and intervened in the proceeding. Administrative Cause Number 88-304R was consolidated with Cause Number 88-299R (collectively referred to as the "consolidated proceedings").
9. The issuance of a permit to engage in surface coal mining operations under Indiana SMCRA is subject to IC 4-21.5-3-5. The permit becomes effective thirty-three (33) days after service by mail, if a petition for review and a petition for stay of effectiveness are not filed. IC 4-21.5-3-2(e); first sentence of IC 4-21.5-3-5(f); and IC 13-4.1-4-5(b).
10. If a petition for review and a petition for stay of effectiveness are filed before an order to issue a permit to engage in surface coal mining becomes effective, the date of effectiveness is automatically extended for an additional fifteen (15) days. Any part of the permit that is not within the scope of the petition is not stayed. IC 13-4.1-3-5(f).
11. On the motion of any party, an administrative law judge is required to conduct a preliminary hearing to determine whether the effectiveness of a permit to engage in surface coal mining operations should be stayed beyond the periods described in Finding 9 and Finding 10. The burden of proof in the preliminary hearing is on the person
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seeking the stay. IC 4-21.5-3-5(h).
12. During the prehearing conference held on January 10, 1989, the effectiveness of the Laswell permit was discussed in light of the administrative adjudication act. It was observed that "no request for stay is pending" but that "if a request for stay is filed by one of the parties, the request will be set for a preliminary hearing." Report of Prehearing Conference entered on January 17, 1989.
13. No party has ever requested a stay of the effectiveness of the Laswell permit. As a result, no action was taken on a petition for stay of effectiveness; and the permit has been effective and acted upon by Laswell during the pendency of the consolidated proceedings.
14. The issues and the relief sought by Pandora were identified during the prehearing conference. As memorialized in the "Report of Prehearing Conference" entered on January 17, 1990: The relief sought by Pandora in this proceeding is the denial... [of the Laswell permit]. Pandora alleges that granting...[the Laswell permit] makes its ownership of coal seams on adjacent land worthless because mining becomes a physical impossibility. Pandora alleges that the [Laswell] permit should be denied on either of two issues:
(1) The Laswell permit application was based on geological information wrongfully obtained from the Department, Energy [Supply, Inc.], and Geosciences [Research Associates, Inc.]. More specifically, the wrongfully obtained information consists of the following:
(A) Seven or eight core borings through the #3 coal seam made in 1961 by BBR Drilling Company (a partnership in which Frank A. Balcar is a partner) placed improperly for public examination by the Department at its Division of Reclamation Field Office in Jasonville in violation of 5 U.S.C. 552 and IC 13-4.1-3-3(b).
(B) Amax core borings distributed to Meadowlarke Farms outside the permitted area and east of the town of Sullivan and placed improperly for public inspection by the Department at its Division of Reclamation Field Office in Jasonville in violation of 5 U.S.C. 552 and IC 134.1-3-3(b);
(C) Borings made for S & G [Excavating] by Energy [Supply, Inc.] in the area of the [Laswell] permit during which Aaron Taylor, as agent for Laswell, was present.
(D) Information wrongfully supplied by Geosciences [Research Associates, Inc.] to S & G [Excavating] with respect to permit U00008.
(2) [The Laswell] permit ... wrongfully overlaps permit U-00008 (issued to S & G [Excavating]), for those areas where Laswell did not have the right to control the coal extraction rights at the time the Department issued... the Laswell permit."
15. S & G Excavating also presented its issues during the prehearing conference on January 10, 1989. However, on March 22, 1989, S & G Excavating filed its "Motion to Withdraw Objections" to issuance of the Laswell permit. The motion was granted, and S & G Excavating was removed as a party to the consolidated proceedings on the same March date. As a result, the relief sought and the issues presented in Finding 14 are exclusive in the consolidated proceedings; and no further reference is made in these Findings to the participation of S & G Excavating in its former capacity as a party. S & G is referenced to the extent its activities bear upon the issues identified by Pandora in Finding 14.
16. On April 28, 1989, Mary M. Runnells filed her "Motion to Withdraw Appearance" for Pandora. The motion was granted on May 2, 1989.
17. Following the withdrawal of Mary Runnells as its attorney, Pandora has elected to act pro se through Frank A. Balcar, President of Pandora. During a second prehearing conference held on July 12, 1989, Frank Balcar was cautioned concerning the complexity of Pandora's legal arguments, and that if Pandora elected to continue to act without an attorney, Balcar would have the same responsibilities. Frank Balcar indicated he understood and accepted those responsibilities. Report of Prehearing Conference entered on July 18, 1989.
18. Several schedules have been agreed, established, and then extended to consider the issues presented in Finding 14 through motions for summary judgment:
(A) During the prehearing conference held on January 10,1989, Laswell was provided until February 9, 1989 to file its motion for summary judgment. The Department was provided until February 24, 1989 to file its motion; and Pandora was granted until March 27, 1989. Both Laswell and the Department filed motions for summary judgment with affidavits attached with respect to the issue of confidentiality.
(B) On March 23, 1989, the former attorney for Pandora orally requested (and she confirmed the request by written motion dated March 27, 1989), an extension of time to file documentation with respect to the motions for summary judgment filed by Laswell and by the Department. The motion
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was granted, and Pandora was provided an extension to respond until April 10, 1989.
(C) On April 5, 1989, Pandora through Frank Balcar orally requested (and he confirmed by letter dated April 6, 1989), a further extension of time to file documentation with respect to the motions for summary judgment. The motion was granted, and Pandora was provided a further extension until June 5, 1989.
(D) On June 12, 1989, Pandora did file a "Motion to Strike or Deny Respondent-Intervenor Laswell Coal Co.'s Motion for Partial Summary Judgment and to Provide other Relief" and "Response to Respondent's Motion for Partial Summary Judgment", although both documents consisted entirely of argument and did not include affidavits or evidence to oppose the motions for summary judgment which had been filed by the other parties.
(E) During the second prehearing conference held on July 12, 1989, there was a discussion of the motions for summary judgment filed by Laswell and by the Department and of the response filed by Pandora to those motions. The administrative law judge suggested that, in his perspective, the responses by Pandora did not present any factual matter to contravene the factual documentation submitted by Laswell and by the Department; and if the intention of Pandora was to identify some factual dispute, additional documentation was required. A photocopy of the statutory section within the administrative adjudication act which controls summary judgment motions (IC 4-21.5-3-33) was provided to Frank Balcar. To assure that Pandora had a full opportunity to respond to the motions for summary judgment already filed, and to establish a complete administrative record, a renewed schedule was agreed by the parties and made an order in the proceeding as follows:
(1) Laswell and the Department were provided until August 14, 1989 to file any additional motion or motions for summary judgment to include the issue of overlapping permits.
(2) Pandora was provided until September 14, 1989 to file any supplemental response to the motions for summary judgment previously filed concerning the confidentiality issue and to file any response to motions yet to be submitted by Laswell or the Department concerning the overlapping permits issue.
(F) On August 14, 1989, "A Second Motion for Partial Summary Judgment" was filed by Laswell; and on the following date, the Department filed its "Motion for Summary Judgment" addressed to the issue of overlapping permits.
(G) On September 15, 1989, Pandora moved to "strike" the August summary judgment motions filed by Laswell and by the Department and requested an extension until October 23, 1989 to file its response to those motions. The request was granted.
(H) On October 24, 1989, Pandora moved to dismiss the consolidated proceedings. Upon being informed that the dismissal would be recommended to the Natural Resources Commission to be with prejudice to the further pursuit of administrative review before the Department, Pandora requested and was granted leave by the Commission to withdraw its dismissal request.
(I) On December 8, 1989, the parties were informed in writing by the administrative law judge that the consolidated proceedings had been remanded for disposition upon the merits. At that time, Pandora was granted an additional extension until January 2, 1990 to file any further response it may have had to the motions for summary judgment filed by the other parties.
(J) On January 16, 1990, Laswell filed an amended second motion for summary judgment addressed to overlapping permits.
(K) Pandora has, since the entry by the administrative law judge on December 8, 1989, elected not to file an additional response to (or cross-motion for) summary judgment.
19. An ample opportunity has been afforded to the parties to seek or to respond to motions for summary judgment in the consolidated proceedings.
20. The motions for summary judgment, affidavits and other evidence permitted under IC 4-21.5-3-23 demonstrate that there is not a genuine issue in dispute in the consolidated proceeding and that summary judgment should be granted according to the specific facts which follow.
21. Finding 22 through 57 addresses the issue identified in Finding 14(l) that the Laswell permit application was allegedly based on geological information wrongfully obtained from the Department, Energy Supply, Inc., and Geosciences Research Associates, Inc.
22. The seven or eight core borings through the #3 coal seam made in 1961 by BBR Drilling Company were not utilized by Laswell in preparation of the application for the Laswell permit.
(A) Ronald Laswell, President of Laswell Coal Co., Inc., stated in an affidavit dated February 8, 1989, that Geosciences Research Associates, Inc. was employed to prepare the application, but that Ronald Laswell did "not have copies of and ... did not provide Geosciences for
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inclusion in the permit application, copies of the seven or eight core borings through the number three coal seam made in 1961 by BBR Drilling."
(B) Robert Bent, an employee of Geosciences Research Associates, Inc., stated in an affidavit dated February 9, 1989, that he was assigned by Geosciences to prepare the application for the Laswell permit. He stated that he "never" had a copy of and had "never...seen the results of" the seven or eight core borings made in 1961 by BBR-Drilling through the #3 seam.
(C) There is no affidavit or other evidence to dispute the affidavits by Ronald Laswell and Robert Bent with respect to the seven or eight core borings through the #3 coal seam made in 1961 by BBR Drilling.
23. Results from the seven or eight core borings made through the #3 coal seam in 1961 by BBR Drilling were not utilized in making the application for the Laswell permit. Because the borings formed no portion of the Laswell permit application, and were not even used indirectly in preparing the application, they are irrelevant to the issuance of the Laswell permit.
24. The Amax core borings distributed to Meadowlark Farms outside the permitted area and east of the town of Sullivan were not utilized by Laswell in the preparation of the application for the Laswell permit.
(A) Ronald Laswell stated in his affidavit of February 8, 1989 that he "never ... had copies of, and did not provide copies of" Amax core borings which Pandora indicates were distributed to Meadowlark Farms for land outside the permitted area and east of the town of Sullivan.
(B) Robert Bent stated in his affidavit of February 9, 1989, that he "never ... had copies of the AMAX core borings distributed to Meadowlark Farms, which... [Pandora states] are for land outside the permitted area and east of the town of Sullivan."
(C) There is no affidavit or other evidence to dispute the affidavits by Ronald Laswell and Robert Bent with respect to the Amax core borings which Pandora indicates were distributed to Meadowlark Farms for land outside the permitted area and east of the town Sullivan.
25. Results from the Amax core borings, which Pandora indicates were distributed to Meadowlark Farms, were not utilized in making the application for the Laswell permit. Because the borings formed no portion of the Lasewell permit application, and were not even used indirectly in preparing the application, they are irrelevant to the issuance of the Laswell permit.
26. The borings Made for S & G Excavating by Energy Supply, Inc. in the area of the Laswell permit, during which Aaron Taylor (an alleged "agent" for Laswell) was present, were not utilized by Laswell in the preparation of the application for the Laswell permit.
(A) Aaron Taylor was present in December 1987 and January 1988 during drilling performed by Energy Supply, Inc. for land included in permit U-00014. However, in an affidavit dated February 8, 1989, Aaron Taylor stated he "did not take any notes or make any written record" of his "observations of the drilling;" and Energy Supply, Inc. "did not supply" him with records of the drilling which he observed.
(B) Robert Bent, the employee of Geosciences Research Associates, Inc. who prepared the application for the Laswell permit, stated in his affidavit of February 9, 1989 that he "did not receive form Aaron Taylor, or from anyone on his behalf, any test boring information resulting from Aaron Taylor's observing of drilling performed by Energy Supply, Inc. ."
(C) Ronald Laswell stated in his affidavit of February 8, 1989 that he "never received from Aaron Taylor information obtained by Taylor while present at the drilling performed by Energy Supply, Inc."
(D) There is no affidavit or other evidence to dispute the affidavits by Aaron Taylor, Robert Bent, and Ronald Laswell with respect to the borings which were made by Energy Supply, Inc. in the area of the Laswell permit during which Aaron Taylor was present.
27. Results from the borings made for S & G Excavating, during which Aaron Taylor was present, were not utilized in making the application for the Laswell permit. Because the borings formed no portion of the Laswell permit application, they are irrelevant to the issuance of the Laswell permit.
28. There is no evidence that information was wrongfully supplied by Geosciences Research Associates, Inc. to S & G Excavation with respect to permit U-00008. Robert in his affidavit of February 9, 1989 that "Geosciences has strict policies forbidding use of information received form one client in the preparation of an application for another client. Procedures have been established in the office so that this will not occur. These include maintaining separate job files for each client and separate folders marked 'confidential' for any information provided by a client that is to remain confidential and not be included in a permit
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application." There is no affidavit or other evidence to dispute the procedures stated by Robert Bent or to demonstrate that those procedures were not followed with respect to permit U-00008.
29. Even if irregularities had occurred with respect to the issuance of permit U-00008 to S & G Excavating, administrative review of those irregularities is not properly within these consolidated proceedings. Any allegation of irregularity addressed to the issuance of permit U-0008 must have been pursued when permit U-00008 was issued. Solely at issue in the consolidated proceedings is the Laswell permit.
30. The unrefuted affidavits by Ronald Laswell, Robert Bent, and Aaron Taylor demonstrate that none of the information alleged to have been wrongfully used in preparation of the Laswell permit were used in any manner in the preparation of the Laswell permit. These affidavits demonstrate that there is not a genuine issue in dispute and that the Department and Laswell are entitled to summary judgment on this issue.
31. Pandora alleges that the Department's Division of Reclamation Field Office in Jasonville, Indiana has placed for public inspection copies of documents which should have been maintained as confidential under 5 U.S.C. 552 and IC 13-4.1-3-3(b).
32. 5 U.S.C. 552 is a portion of what is known as the "Federal Freedom of Information Act" and applies only to the federal government and its agencies.
33. The "Federal Freedom of Information Act" does not apply to state governments and state agencies. 5 U.S.C. 551 and 552; St. Michael's Convalescent v. State of California, 643 F.2d 1369, 1373 (9th Cir. 1981); Ciccone v. Waterfront Commission of New York Harbor, 433 F. Supp. 55,58 (S.D.N.Y. 1977).
34. The Department is an agency of state government of the state of Indiana and is not an agency of the federal government. IC 14-3-3-2.
35. The Federal Freedom of Information Act (including 5 U.S.C 552) does not apply to the Department.
36. Access to records maintained by an agency of the state of Indiana is controlled by IC 5-14-3 (sometimes referred to as the "Access to Public Records Act").
37. The Access to Public Records Act provides generally that any person may inspect and copy the public records of a state agency during the regular business hours of the agency. IC 5-14-3-3.
38. The Access to Public Records Act also expresses a policy which favors disclosure of public records over nondisclosure. "[I]t is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. This chapter [IC 5-14-3] shall be liberally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the... [state] agency that would deny access to the record and not the person seeking to inspect and copy the record." IC 5-14-3-1.
39. A "public record" is defined broadly under the Access to Public Records Act to include "any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, used, or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, or any other material, regardless of form or characteristics." IC 5-14-3-2.
40. Public records which are excepted form disclosure are identified in IC 5-14-3-4. This section provides, as pertinent to the consolidated proceedings, that public records which are excepted from disclosure are those "declared confidential by state statute" and "those declared confidential by rule" by the state agency "under specific authority to classify public records as confidential granted to" the agency "by statute".
41. Indiana SMCRA provides for the confidentiality of some information required in a permit application in IC 13-4.1-3-3(b). This subsection provides, in pertinent part, as follows: "The information ... pertaining to coal seams, test borings, core samplings, or soil samples is available for inspection by any person with an interest which is or may be adversely affected by the surface coal mining and reclamation operation. However, that information which pertains only to the analysis of the chemical and physical properties of the coal, except information concerning a mineral or elemental content which is potentially toxic in the environment .... is confidential."
42. In language which mirrors IC 13-4.1-33(b), the Department has provided by rule in 310 IAC 12-3-110(a)(2)(i) that "Information in permit applications which pertains only to the analysis of chemical and physical properties of the coal to be mined (except information regarding mineral or elemental contents or such coal which are potentially toxic
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in the environment) will be kept confidential...
43. A test boring log was included in the application filed with the Department by S & G Excavating for permit u-00008. The boring log was prepared by Richard E. Van Gilder, well driller. Attachment to Affidavit of Robert Aten dated February 9, 1989.
44. The test boring log identified in Finding 43 became a public record upon filing with the Department.
45. Robert Aten, an experienced registered professional geologist, stated in his affidavit of February 9, 1989 that a "test boring log contains a geologic description of the various strata of soil, rock and mineral materials" but does " not normally contain the results of analysis of the chemical or physical properties of coal."
46. Robert Aten stated in his February 9, 1989 affidavit that an "analysis of the chemical and physical properties of coal would disclose things such as the sulfur content, moisture content, ash content, BTU content, and hardness, banding and cleating of coal."
47. Robert Aten further stated in his February 9, 1989 affidavit that he had reviewed the test boring log identified in Finding 43. "The only chemical or physical property of the coal disclosed by that test boring log is the thickness of the coal seams, which can be calculated from the log by subtracting the depth to the top from the depth to the bottom of the coal seams. The thickness of a coal seam is not the result of an analysis, but rather a simple mathematical calculation."
48. A test boring log from which the thickness of a coal seam can be determined, but from which the chemical or physical properties of the coal cannot be determined, does not provide an "analysis of chemical and physical" properties of the coal as specified under IC 13-4.1-3-3(b) and 310 IAC 12-3-110(a) (2)(i).
49. A test boring log from which the thickness of a coal seam can be determined, but from which the chemical or physical properties of the coal cannot be determined, does not constitute a confidential public record under Indiana SMCRA and under the Access to Public Records Act.
50. Assuming for the sake of argument the test boring log identified in Finding 43 is properly at issue in the consolidated proceedings, that log is a public record which is not entitled to the confidentially exemption provided in Indiana SMCRA and in the Access to Public Records Act.
51. Assuming for the sake of argument the test boring log identified in Finding 43 is properly at issue in the consolidated proceedings, and further assuming the test boring log contained confidential information, Pandora has not established any standing to complain as to its disclosure. The record does not establish that Pandora enjoyed any proprietary interest in the test boring log, or in the materials contained in the application by S & G Excavating for permit T4-00008.
52. Assuming for the sake of argument the test boring log identified in Finding 43 is properly at issue in the consolidated proceedings, and further assuming the test boring log contained confidential information, and further assuming Pandora enjoyed a propriety interest in the test boring log or in the materials contained in the application by S & G Excavating for permit U-00008, any claim of confidentiality has been waived.
53. 310 IAC 12-3-110(b) provides, in pertinent part, that information required to be kept confidential in a permit application "shall be clearly identified by the applicant and submitted separately from other portions of the application."
54. Danny Stropes stated in an affidavit dated February 23, 1989 that he was employed by the Department's Division of Reclamation as its Reclamation Planning Specialist. One of his "responsibilities as a Reclamation Planning Specialist was to review applications for" Indiana SMCRA permits; and he "was responsible for and completed the review of S & G Excavating, Inc. permit application for permit #U-00008. The application for permit U00008 did not include a request that information in the permit be held confidential."
55. Because no request was received to maintain as confidential information contained in the application for permit U-00008, any claim of confidentiality has been waived.
56. There is no genuine issue in dispute as to whether the test boring log described in Finding 43 (or any other public record contained in the application for permit U-00008) was wrongfully made available for public inspection. Those public records were not confidential (and were not submitted to the Department's Division of Reclamation in a manner which would have protected their confidentiality, if they were confidential). The Department and Laswell are entitled to summary judgment on this issue.
57. The Laswell permit application was not based on geological information wrongfully obtained from the Department, Energy Supply, Inc., or Geosciences Research Associates, Inc. None
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of the information alleged by Pandora, as described in Finding 14(j) to have been wrongfully obtained, was utilized in making the application for the Laswell permit. The test boring log described in Finding 43 and contained in the application by S & G Excavating for permit U-00008 was not, by law, entitled to be treated by the Department as a confidential public record.
58. Finding 59 through Finding 66 address the issue raised by Pandora and identified in Finding 14(2)--that the Laswell permit wrongfully overlaps permit U-00008 granted to S & G Excavating, where Laswell did not have the right to control the coal extraction rights when the Department issued the Laswell permit.
59. Permit U-00008 was issued to S & G Excavating on February 19, 1985.
60. 310 IC 12-3-115(b)(1) provides that a permit under Indiana SMCRA to conduct surface coal mining operations terminates if the permittee has not commenced those operations within three years after issuance of the permit.
61. 310 IAC 12-3-115(b)(2) provides the Natural Resources Commission may grant a reasonable extension of time for commencement of those operations, upon a showing that an extension is necessary, if either of the following conditions applies:
(A) Litigation precludes the commencement or threatens substantial economic loss to the permittee.
(B) There are conditions beyond the control and without the fault or negligence of the permittee.
62. The Department granted S & G an extension of time in which to commence the operation of its mine to August 13, 1989. Letter from David I. Phillips, Permit Section Head for the Department's Division of Reclamation, to John S. Rowe.
63. On April 12, 1989, Richard Nomday of S & G Excavating notified the Department by letter that S & G Excavating had determined permit U-00008 would not be activated and that permit U-00008 would be allowed to terminate upon receipt by the Department of that letter.
64. By letter dated May 23, 1989, Bruce Novinska, Permitting Specialist for the Department's Division of Reclamation, confirmed that permit U-00008 had been terminated.
65. By May 23, 1989, permit U-00008 ceased to exist.
66. Because permit U-00008 no longer exists, the issue of overlapping permits between the Laswell permit and permit U-00008 is moot. The Department and Laswell are entitled to summary judgment on this issue.
67. The Department and Laswell are entitled to summary judgment in their favor and against Pandora on all the issues in the consolidated proceedings.