CADDNAR


[CITE: Gray Farms, Inc. v. Department of Natural Resources, 5 CADDNAR 182 (1990)]

 

[VOLUME 5, PAGE 182]

 

Cause #: 89-008R

Caption: Gray Farms, Inc. v. Department of Natural Resources
Administrative Law Judge: Lucas
Attorneys: Williams; Posey
Date: July 1, 1990

ORDER

 

The enhancement lien recorded against Gray Farms on November 29, 1988 in record book 71, pages 278 to 302, as document 88-2055 with the Recorder of Pike County, shall be removed by the Department.

FINDINGS OF FACT

 

A. ADMINISTRATIVE LAW JUDGE IS THE DEPARTMENT'S ULTIMATE AUTHORITY.

1. The Indiana department of natural resources (the "Department") is an agency as the term is defined in IC 4-21.5-1-3. IC 4-21.5 (sometimes referred to as the "administrative adjudication act" or the "AAA") is applicable to an "agency action" of the Department.

 

2. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.

 

3. SECTION 2 of 1991 Senate Enrolled Act 154, which became effective July 1, 1991, provides in pertinent part: "Notwithstanding IC 14-3-3-21(a), IC 14-3-3-25, and any other law, the administrative law judge is the ultimate authority for the department for any administrative review proceedings under this article [IC 13-4.1], except for proceedings concerning the approval or disapproval of a permit application or permit renewal under IC 13-4.1-4-5 and proceedings for suspension or revocation of a permit under IC 13-4.1-11-6." This enactment of the Indiana General Assembly is codified at IC 13-4.1-2-1(c).

 

4. The administrative law judge is the "ultimate authority" for the Department in this proceeding, because at issue is an administrative review under IC 13-4.1 with respect to the placement of a lien (and not an exception to the ultimate authority of an administrative law judge under IC 13-4.1-4-5 or IC 13-4.1-11-6).

B. APPLICATION OF ADMINISTRATIVE ADJUDICATION ACT

5. Gray Farms, Inc. ("Gray Farms") filed its request for administrative review on January 24, 1989.

 

6. The request for administrative review by Gray Farms was timely and initiated a proceeding which is subject to the administrative adjudication act. Also applicable is 310 IAC 0.6-1, a rule adopted to assist in the implementation of the AAA before the Department.

 

7. The substantive statutory provisions under consideration in this proceeding are found in IC 13-4.1, an article which addresses surface coal mining and reclamation.

 

8. IC 13-4.1 is supplemented by rules codified at 310 IAC 12. IC 13-4.1 and 310 IAC 12 are collectively referred to as "Indiana SMCRA".

 

9. The scope of administrative review is determined primarily by the administrative adjudication act. Included within the purview of the enactment is the capacity to review both legal and factual issues.

 

10. Although an agency does not have jurisdiction under the AAA to pass upon the constitutionality of a statute itself [FOOTNOTE i], the AAA does provide a forum in which to consider whether an agency applies a statute in a constitutional manner.[FOOTNOTE ii]

 

11. The purposes of IC 13-4.1 are set forth in IC 13-4.1-1-2. Most notably for this proceeding, subdivision (8) of the section specifies that a purpose of IC 13-4.1 is to do the following: " ... promote the reclamation of mined areas left without adequate reclamation prior to August 3, 1977, and which continue, in their unreclaimed condition, to substantially degrade the quality of the environment, prevent or damage the beneficial use of land or water resources, or endanger the health or safety of the public."

 

12. Chapter 15 of IC 13-4.1 is the chapter primarily concerned with mine lands left without adequate reclamation prior to August 3, 1977. These properties are sometimes called "abandoned mine lands". Chapter 15 is referenced as the "Abandoned Mines Chapter".

 

13. The Abandoned Mines Chapter addresses a number

 

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of issues relative to coal mine lands left without adequate reclamation. Included are provisions relative to federal funding for the restoration of abandoned mine lands, the establishment of a special dedicated fund for that purpose, eligibility for federal funding, expenditure priorities, entry by the Department's director (the "Director") upon lands adversely affected by past coal mining practices, acquisitions of lands adversely affected by past coal mining practices, title and sale of those lands, liens on privately owned lands where a significant increase in property value has resulted from restoration efforts, hazard abatement, and the construction by the Director of plants to control water pollution resulting from mine drainage.

 

14. More particularly, liens are governed by IC 13-4.1-15-12. Subsection (a) of that section states:

 

"Within six (6) months after the completion of projects to restore, reclaim, abate, control, or prevent adverse effects of past coal mining practices on privately owned land, the [D]irector shall itemize the moneys expended and may file a statement thereof with the county recorder in the county in which the land lies together with a notarized appraisal by an independent appraiser of the value of the land before the restoration, reclamation, abatement, control, or prevention of adverse effects of past coal mining practices if the moneys so expended shall result in a significant increase in property value. That statement shall constitute a lien upon the land. The lien may not exceed the amount determined by the appraisal to be the increase in the market value of the land as a result of the restoration, reclamation, abatement, control, or prevention of the adverse effects of past coal mining practices. No lien shall be filed against the property of any person, in accordance with this subsection, who owned the surface prior to May 2, 1977, and who neither consented to, participated in, nor exercised control over the mining operation which necessitated the reclamation performed under this chapter." A lien under section 12 is here referenced as an "enhancement lien".

 

15. The Department filed an enhancement lien, asserting the authority of IC 13-4.1-15-12, in the amount of $60,000 against property owned by Gray Farms in Pike county, Indiana (the "subject property"). This enhancement lien was recorded on November 29, 1988 in record book 71, pages 278 to 302, as document 88-2055 with the Recorder of Pike County (the "subject lien").

 

16. A "determination of tax due or other liability" by a state agency is an event for which administrative review is available under the administrative adjudication act pursuant to IC 4-21.5-35(a)(4).

 

17. An enhancement lien is in the nature of a "tax due or other liability" for which administrative review is available within the AAA and to which IC 4-21.5-3-5 applies.

 

18. Stated in general terms, Gray Farms presents six grounds upon which it contends the imposition of the subject lien against the subject property is unlawful:

 

(1) The alleged $60,000 increase in the market value of the property, as determined by the appraisal of C. David Mathews, was excessive.

(2) IC 13-4.1-15-12(a) is unconstitutional in substance or application because what constitutes a "significant increase in property value" is not defined.

(3) The application of the subject lien through IC 13-4.1-15 is unconstitutional because Gray Farms did not receive advance notice and due process with respect to the lien assessment.

(4) Attachment of the lien by the Department against the entire 3,037 acres owned by Gray Farms is unlawful because abandoned mine land work was performed only upon approximately 400 acres.

(5) The Department has violated equal protection through past practices because other landowners have received the benefits of abandoned mine lands work on substantial acreage without receiving an enhancement lien.

(6) The subject lien has been improperly asserted because IC 13-4.1-15-12 states that no enhancement lien can be filed against land on which surface coal mining operations took place after May 2, 1977; and surface coal mining operations have, in fact, taken place on some of the acreage included within the subject property subsequent to that date.

 

19. Most of the issues identified in Finding 18 are within the competence of the administrative law judge and are subject to administrative review and judicial review pursuant to IC 4-21.5. The notable exception is that the administrative law judge is without competence to determine the constitutionality of the disputed sections of IC 13-4.1-15.

 

20. Not only does the administrative law judge have administrative competence, pursuant to IC 13-4.1-15-12(b) it has exclusive jurisdiction to determine the amount of an "increase in market value" of the

 

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subject property, as the increase bears upon the issuance of an enhancement lien. This statutory subsection is applicable to issue (1) in Finding 18.

 

21. The question of the extent of administrative jurisdiction, when a proceeding includes issues that are beyond administrative competence, is governed in Indiana by the "doctrine of primary jurisdiction". The doctrine essentially holds that when any part of the proceeding is within the exclusive jurisdiction of an agency, the whole proceeding must first be heard by the agency.[FOOTNOTE iii]

 

22. Since the administrative law judge has exclusive jurisdiction to determine any increase in value of the subject property, as the increase bears upon the issuance of an enhancement lien, the doctrine of primary jurisdiction requires that the whole proceeding must first be heard by the administrative law judge. For this reason, each of the six issues identified in Finding 15 may, and to support administrative and judicial efficiency should, properly be heard and determined by the administrative law judge.[FOOTNOTE iv]

 

23. The administrative adjudication act applies to require administrative review of each of the six issues identified in Finding 15.

C. WHETHER THE ALLEGED $60,000 INCREASE IN MARKET VALUE OF THE SUBJECT PROPERTY, AS DETERMINED BY THE APPRAISAL OF C. DAVID MATTHEWS, WAS EXCESSIVE.

24. C. David Matthews, a qualified independent real estate appraiser, was contracted by the Department pursuant to IC 13-4.1-1512(a) to provide evaluations of the property before and after completion of the abandoned mine lands restoration project.

 

25. In conducting the appraisal of the subject property, Matthews followed the normal valuation process. He and an associate inspected and photographed the subject property. Comparable sales data and market analyses were used.

 

26. In accordance with his appraisal contract with the Department, Matthews valued the subject property after the abandoned mine lands restoration project based on the "assumption" that the restoration "effort was completed."[FOOTNOTE v]

 

27. Matthews conducted his final inspection for the appraisal on April 22, 1988. At that time, portions of the abandoned mine lands restoration effort on the subject property were completed, but other portions were not completed.[FOOTNOTE vi]

 

28. When the hearing was conducted on May 14, 1990, there were still areas of the abandoned mine lands restoration project where erosion was occurring and where revegetation with grasses was yet unsuccessful. In its effort to establish a grass cover, the Department had entered maintenance projects.[FOOTNOTE vii]

 

29. A sample taken from one location within the abandoned mine lands restoration project indicated water continues to be acidic and may not be significantly improved from the quality which existed before the project.[FOOTNOTE viii] An accumulation of iron oxide is visible within and along the banks of the lake.[FOOTNOTE ix]  Iron deposits are also demonstrated along the banks of a ditch lined with rip rap.[FOOTNOTE x]

 

30. The Department contends the project was complete for purposes of filing the enhancement lien against the subject property. "The project was complete because the primary contract had been performed ... The important factor is that the main contract, (project), to restore, abate, control, and prevent adverse effects of past coal mining practices was completed." Claimant's (sic. Respondent's] Post-Hearing Brief at page 2.

 

31. The Department's reasoning is fatally flawed because it equates restoration project completion with the completion of the contract for the primary restoration project. As a consequence of this false equation, an appraisal was acquired, not based upon the actual condition of the subject property following completion of the primary restoration project contract, but rather based on a restoration goal which has not yet been achieved.

 

32. If an enhancement lien is to be founded on successfully completed restoration, the Matthews appraisal and resulting enhancement lien are premature. The evidence does not support the proposition that restoration of the subject property has been completed.

 

33. If an enhancement lien is to be founded on whatever improvements have benefited property following the completion of the contract for a primary restoration project, the Matthews appraisal applies assumptions which are nonfactual.

 

34. IC 13-4.1-15 would apparently allow the determination of an enhancement lien based upon an imperfect or incomplete restoration effort, but the statute does not contemplate an increased valuation measured by parameters of success which have not and may never occur.

 

35. Because the Matthews appraisal applies assumptions which do not reflect the current factual condition of the subject property, its determination of the increase in market value to the subject property resulting from the restoration project is inappropriate and must be set aside.

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D. WHETHER IC 13-4.1-15-12(a) IS UNCONSTITUTIONAL IN SUBSTANCE OR APPLICATION BECAUSE WHAT CONSTITUTES A "SIGNIFICANT INCREASE IN PROPERTY VALUE" IS NOT DEFINED.

 
36. IC 13-4.1-15-12(a) authorizes the imposition of an enhancement lien where a completed abandoned mine lands restoration project results in a "significant increase in property value" to the restored realty.

 

37. What constitutes a "significant increase in property value" is not defined in IC 13-4.1.

 

38. What constitutes a "significant increase in property value" is not defined by an Indiana rule.[FOOTNOTE xi]

 

39. Nothing in SMCRA delineates any standards for determining what constitutes a "significant increase in property value".

 

40. The meaning of the term "significant" is not, however, so mysterious as to deny constitutional legal application resulting from vagueness. Generally, "significant" refers to that which is "full of import" and substantial. McLeod v. Great Northern Paper Company, 268 A.2d 488, 491 (1970 Me).

 

41. Where a statute is silent as to the meaning of a key phrase, there may be found a deference by the legislature to an administrative interpretation. Continental Training Services, Inc. v. Cavazos, 893 F.2d 877 (7th 1990).

 

42. Broad discretion is provided to the Commission to adopt rules to construe what constitutes a "significant increase in property value". IC 4-21.5-2-1 and IC 14-3-3-21.[FOOTNOTE xii]

 

43. Within the general parameters of what is "significant", and applying standard methodologies for the valuation of property, the Department through the natural resources commission might adopt standards for what constitutes a "significant increase in property value" by rule, or, conceivably by another mechanism which provides adequate public notification. Properly implemented, this mechanism would cause "significant increase in property value" to pass constitutional muster.

 

44. IC 13-4.1-15-12(a) is not unconstitutional on its face.

 

45. There was, however, no evidence offered that the commission has ever adopted a rule nor embraced a nonrule policy document, written guideline, or published standard of any kind in seeking to establish what is a "significant increase in property value". Indeed, there was no evidence that the commission has been invited by the division of reclamation of the Department to interpret the phrase.[FOOTNOTE xiii]

 

46. Testimony elicited at hearing demonstrates that Ray Brumfiel, realty supervisor of the Department's abandoned mine lands restoration program, utilized a "draft" document of the federal office of surface mining reclamation enforcement to determine that a "significant increase in property value" had occurred to the subject property. He also testified that this "draft" document "was never implemented" and a final document was never approved. He was unable to state whether the document was ever published or even if it is considered by the Department to be a public record.[FOOTNOTE xiv]

 

47. With respect to this proceeding and to the property, IC 13-4.1-15-12(a) has been applied in a manner which lacks discernible standards.

 

48. What constitutes a "significant increase in property value" to the subject property has been applied without reference to discernible standards.

 

49. The application of IC 13-4.1-15-12(a) to the facts of this proceeding must be found to be void for vagueness.

E. WHETHER THE APPLICATION OF THE SUBJECT LIEN THROUGH IC 13-4.1-15 IS UNCONSTITUTIONAL BECAUSE GRAY FARMS DID NOT RECEIVE ADVANCE NOTICE AND DUE PROCESS WITH RESPECT TO THE LIEN ASSESSMENT.

50. IC 13-4.1-15-12 provides, in part, that six months after the completion of a restoration project, the Director "shall itemize the moneys expended and may file a statement thereof with the county recorder in the county in which the land lies together with a notarized appraisal by an independent appraiser of the value of the land before the restoration... if the moneys so expended shall result in a significant increase in property value. This statement shall constitute a lien upon the land... and shall have priority as a lien second only to the lien of real estate taxes imposed upon said land."

 

51. The statutory requirements for notice of a determination to place an enhancement lien are not clearly described in Indiana SMCRA.[FOOTNOTE xv]

 

52. An enhancement lien is, however, in the nature of a "tax due or other liability" for which administrative review is available under the AAA and to which IC 4-21.5-3-5 applies.

 

53. IC 4-21.5-3-5 and the administrative adjudication act do provide notice requirements to be applied before an order is effective. Notably, subsection 5(c) specifies that the notice must include the following:

 

(1) A brief description of the order.

(2) A brief explanation of the available procedures and the time limit for seeking administrative review...

(3) A brief explanation of how the person may obtain notices of any prehearing

 

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conferences, preliminary hearings, hearings, stays, and any order disposing of the proceedings without intervening in the proceeding, if a petition is granted....

 

(4) Any other information required by law.

 

54. An order issued under IC 4-21.5-3-5 does not become effective until 15 days after service (18 days where served by mail) of the notice. IC 4-21.5-3-5(f) and IC 4-21.5-32(e).

 

55. IC 4-21.5-3-5(f) provides the recipient of a proposed order with the ability to cause its effectiveness to be automatically stayed for an additional 15 days upon the filing of a petition for administrative review and for a stay. In addition, discretion rests with an administrative law judge to grant an additional stay of effectiveness with an indefinite duration during the pendency of review.

 

56. A proposed order to issue an enhancement lien must be served under IC 4-21.5-3-5 upon the landowner whose property would be affected. Before the lien can be recorded, the period for seeking review must pass or there must be a completed proceeding under the administrative adjudication act.

 

57. Properly implemented, the notice requirements of IC 4-21.5-3-5 and the administrative adjudication act provide advance notice and due process to the recipient of a proposed order for an enhancement lien.

 

58. Notice was provided by the Department to Gray Farms by certified mail on October 31, 1988 that an enhancement lien was being recorded against the property and that Gray Farms had an opportunity to prepay the $60,000 assessment to be secured by the lien.[FOOTNOTE xvi]

 

59. The October 31 notice did not set forth the available procedures or the time limit for Gray Farms to seek administrative review.

 

60. The October 31 notice does not conform to the minimum requirements of IC 4-21.5-3-5(c).

 

61. The Department has not provided the notice required by IC 4-21.5-3-5(c) for issuing an order for a determination of tax due or other liability.

 

62. The statutory prerequisites for a Department order to record an enhancement lien against the subject property have not been met. For this reason, the lien itself must be set aside.

F. WHETHER ATTACHMENT OF THE LIEN BY THE DEPARTMENT AGAINST THE ENTIRE 2,885 ACRES OWNED BY GRAY FARMS IS UNLAWFUL BECAUSE ABANDONED MINE LAND WORK WAS PERFORMED ONLY UPON APPROXIMATELY 400 ACRES.

63. The enhancement lien recorded against the subject property encompasses approximately 2,885 acres owned by Gray Farms. Approximately 430 of those acres were directly disturbed by the abandoned mine lines restoration project.[FOOTNOTE xvii]

 

64. Although no standards have been adopted by the Department for determining what is the proper geographic scope of an enhancement lien, Brumfiel testified that he used, common practice" in placing "the lien against the deed description rather than going out and... surveying an actual jagged line in the middle of the property, the subject property."[FOOTNOTE xviii]

 

65. In determining what property may be encumbered by an enhancement lien, the purposes of the state in applying the lien must be considered. See, generally, State v. Bucchieri, 176 Conn. 339, 407 A.2d 990 (1978).

 

66. An enhancement lien is intended to avoid unjust enrichment to a landowner resulting from the expenditure of public moneys in conducting a restoration project. The enhancement lien also provides an opportunity to the state for the reimbursement of at least some of the amounts expended on the project.

 

67. The purposes for applying an enhancement lien may not be fully achieved by restricting the lien to the property where work has occurred, if a consequence of the work is to benefit adjacent property held in the same ownership.

 

68. Application by the Department of the enhancement lien against the subject property would not be voided (if the lien were otherwise valid) merely because it encompasses areas owned by Gray Farms outside but adjacent to the area where restoration work was performed.

G. WHETHER THE DEPARTMENT HAS VIOLATED EQUAL PROTECTION THROUGH PAST PRACTICES BECAUSE OTHER LANDOWNERS HAVE RECEIVED THE BENEFITS OF ABANDONED MINE LANDS WORK ON SUBSTANTIAL ACREAGE WITHOUT RECEIVING AN ENHANCEMENT LIEN

69. In urging that Gray Farms has been harmed because an enhancement lien has been sought against the subject property, but not against similarly situated properties, the claimant is seemingly contending that there has been what might be analogized to "selective enforcement".

 

70. Gray Farms has cited no authority for the proposition that an action by a governmental entity to seek a lien against one landowner, but not against another similarly situated, is legally actionable.

 

71. To the contrary, an agency charged with a regulatory function ordinarily has the discretionary power to take enforcement action against one violator to the exclusion of other violators. This power is limited to assure that the agency's

 

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action is not punitive or intended to arbitrarily destroy one of many violators in the market. Johnson Products Co. v. F.T.C., 549 F.2d 35 (7th Cir. 1977).

 

72. Although the placement of an enhancement lien is not an enforcement action, the doctrine stated in Johnson Products Co.. is analogous. The facts of this proceeding do not support a finding that the placement of the enhancement lien against the subject property was either punitive or intended to destroy Gray Farms.

 

73. The enhancement lien would not be voided on the basis that the Department has violated equal protection by placing an enhancement lien against Gray Farms and not against other landowners similarly situated.

H. WHETHER THE SUBJECT LIEN HAS BEEN IMPROPERLY ASSERTED BECAUSE IC 13-4.1-15-12 STATES THAT NO ENHANCEMENT LIEN CAN BE FILED AGAINST LAND ON WHICH SURFACE COAL MINING OPERATIONS TOOK PLACE AFTER MAY 2, 1977 (AND SURFACE COAL MINING OPERATIONS HAVE, IN FACT, TAKEN PLACE ON SOME OF THE ACREAGE INCLUDED WITHIN THE SUBJECT PROPERTY SUBSEQUENT TO THAT DATE).

 

74. Gray Farms contended in its Brief in Support of motion for Summary Judgment, filed on March 5, 1990, that IC 13-4.1-15-2 also controls the application of Chapter 15, including the provisions of IC 13-4.1-15-12 which address enhancement liens.

 

75. IC 13-4.1-15-2 states as follows: Lands and water eligible for reclamation or drainage abatement expenditures under... [Chapter 15] are those which were mined for coal or which were affected by that mining, wastebanks, coal processing, or other coal mining processes, and abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for which there is no continuing reclamation responsibility under state or federal law.

 

76. The parties do not dispute that coal mining took place on the subject property before August 3, 1977. In addition, portions of the subject property were mined after August 3, 1977.

 

77. Property which is mined after August 3, 1977 can be made ineligible for abatement expenditures under Chapter 15.

 

78. Gray Farms contends that the "lands and water" against which an enhancement lien may be entered are only those "eligible for reclamation ... abatement expenditures" under chapter 15. A land or water which is ineligible for abatement expenditures is ineligible to support an enhancement lien under section 12.

 

79. The Department responds that IC 13-4.1-15-2 is irrelevant, that IC 13-4.1-15-12 is the exclusive section pertaining to enhancement liens, and section 12 contains no restriction that lands be eligible for an abatement expenditure under IC 13-4.1-15-2 before they may be subject to an enhancement lien under IC 13-4.1-15-12.

 

80. The disparate interpretations made by Gray Farms and by the Department are properly issues for summary judgment under IC 4-21.5-3-23. They are legal issues which must be resolved according to precedents relative to liens, generally, and under broad principles of statutory construction.

 

81. An enhancement lien under IC 13-4.1-15-12 may properly be analogized to a mechanic's lien. Both are statutory creatures and exist only by virtue of a claimant's compliance with the enabling statutes.

 

82. The provisions of a mechanic's lien statute relating to the creating, existence, or persons entitled to the lien have been strictly construed by the courts. Puritan Engineering Corporation v. Robinson, Trustee, et al., 207 Ind. 58, 191 N.E. 141 (1934).

 

83. The provisions of the enhancement lien statue relating to the creation, existence, or persons entitled to the lien should also be strictly construed.

 

84. Principles of statutory construction must be applied to determine whether IC 13-4.1-15-2 is relevant to the application of IC 13-4.1-15-12 and to the application of Chapter 15 generally.

 

85. An axiomatic principle of statutory construction is that where a single section of a statute is construed, the section must be construed with due regard for other sections of the same act in order to implement the legislative intent. Detterline v. Bonaventura, 465 N.E.2d 215 (1984 Ind. App.).

 

86. When called upon to interpret statutory words or phrases, there must properly be reference to the statute and act as a whole and not an isolated word or phrase. In re Estate of Souder, 421 N.E.2d 12 (Ind. App. 1981).

 

87. The construction required here is that of a single chapter (the Abandoned Mines Chapter), within a larger article (IC 13-4.1), which was initially enacted in the Acts of 1980, Public Law 101.

 

88. The purpose of IC 13-4.1 which is sought to be implemented by the Abandoned Mines Chapter is primarily the purpose set forth in IC 13-4.11-2(8): to "[p]romote the reclamation of mined areas left without adequate reclamation prior to August 3, 1977."

 

89. IC 13-4.1-15-2 is harmonious with IC 13-4.1-1-2(8) and must be read together with IC 13-4.1-15-12 to implement the

 

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legislative intent. The scheme of the Abandoned Mines Chapter is to promote the reclamation of mined areas left without adequate reclamation prior to August 3, 1977, as opposed to inadequate reclamation activities which occurred after that date.

 

90. In 1987, the Indiana General Assembly enacted an amendment to IC 13-4.1 to address lands which were coal mined and abandoned after August 3, 1977. This enactment created a dedicated fund distinct from the dedicated fund which had been established in 1980 within Chapter 15 for lands mined prior to August 3, 1977. The dedicated fund created in 1987 "may be used to effect the restoration of lands on which there has been surface mining activity after August 3, 1977." P.L. 165-1987, SEC. 3.

 

91. The dedicated fund established in 1987 for lands on which there was surface mining activity after August 3, 1977 was placed, not within Chapter 15, but rather within Chapter 6 of IC 13-4.1. IC 13-4.1-6-8.

 

92. The placement in 1987 of a dedicated fund outside Chapter 15, to address lands coal mined after August 3, 1977, also illustrates a legislative intent that Chapter 15 be directed to sites coal mined before August 3, 1977.

 

93. Surface coal mining at a site after August 3, 1977 does not qualify a site for the placement of an enhancement lien under IC 134.1-15-12 following a restoration activity under IC 13-4.1-6-8.

 

94. On the other hand, where surface coal mining activities occurred on a site before August 3, 1977 which would qualify under Chapter 15 for an enhancement lien under IC 13-4.1-15-12, the Department is not required to establish the absence of mining activities after August 3, 1977 as a condition precedent to the issuance of the enhancement lien. Section 12 does not establish that the Director must prove the absence of mining after August 3, 1977 in order to record an enhancement lien.

 

95. Although the occurrence of mining after August 3, 1977 could, following a proper factual showing, extinguish an enhancement lien, the occurrence constitutes a matter of legal avoidance. A landowner must present the issue as an affirmative defense. This result is also appropriate as a practical matter because:

 

(1) proving a negative (the absence of subsequent mining) is an unwieldy requirement for the regulatory authority; and

(2) the landowner is ordinarily in a superior position to the Department to know whether and what land was mined subsequent to 1977.

 

96. In determining whether to void responsibility for a lien, principles of equity apply. To hold otherwise would seriously compromise the intent of IC 13-4.1-15-12 and could result in a landowner's unjust enrichment. A landowner who participates in unlawful mining activates after August 3, 1977, or who suffers their conduct without informing the regulatory authority, could receive the benefit from land or water restorations under the Abandoned Mines Chapter without suffering the burden of an enhancement lien. This unjust enrichment is a major element of what IC 134.1-15-12 is intended to prevent.

 

97. Even if portions of a site restored under chapter 15 are coal mined after August 3, 1977 and become ineligible for reclamation or drainage abatement expenditures, there is no reason why the entirety of the site should become immune from an enhancement lien. If the issuance of the enhancement lien was otherwise proper, only those portions actually mined after August 3, 1977 would be effected. Again, to hold otherwise would result in the unjust enrichment to a landowner which IC 13-4.1-15-12 is intended to prevent.

 

98. IC 13-4.1-15 governs the restoration of coal mines abandoned before August 3, 1977 where lands or water were left in an inadequate reclamation status. The Department may record a lien under IC 13-4.1-15-12 where restoration of a site on privately-owned lands occurs, if the site was mined and abandoned before August 3, 1977 and the filing requirements of section 12 are met.[FOOTNOTE xix]

 

99. If mining activities occurred on a site after August 3, 1977, which were not unlawfully conducted with the participation or acquiescence of a landowner, the landowner might seek to avoid an enhancement lien for the portions of the site on which post-1977 mining occurred.

 

100. Surface coal mining occurred on roughly 28 acres of the subject property after August 3, 1977. This mining activity was apparently conducted without being properly permitted,[FOOTNOTE xx] but Gray Farms neither participated nor knowingly acquiesced in those unlawful mining activities.

 

101. Even so, the evidence would not support the voidance of the enhancement lien based upon the post-1977 mining of 28 acres of the subject property. Considering the acreage affected by the abandoned mine lands project, this 28-acre disturbance is de minimus and possibly a necessary consequence of the project.

 

102. If the enhancement lien

 

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were otherwise valid, Gray Farms would not have met its burden of persuasion that the company should avoid the lien because a portion of the restored area was mined after 1977.

I. THE ENHANCEMENT LIEN RECORDED AGAINST THE SUBJECT PROPERTY MUST BE REMOVED.

103. The enhancement lien recorded by the Department against the subject property must be removed. This conclusion of ultimate fact and law is necessitated by each of the following reasons, standing together or alone, as set forth infra with more particularity:

 

(1) The Matthews appraisal was based upon an assumption that restoration of the subject property was complete, an assumption not supported be the evidence.

(2) The Department has not established discernible standards, by rule or otherwise, for what constitutes a "significant increase in property value" to warrant the recordation of an enhancement lien. As a result, IC 13-4.1-15-12(a) is void for vagueness as applied to the facts of this proceeding.

(3) An order for the imposition of an enhancement lien is in the nature of a "tax due or other liability" within the administrative adjudication act. Notice of the proposed order to issue the enhancement lien against the subject property was not given under IC 4-21.5-3-5. This failure by the Department to meet the minimum statutory notice requirements for an order under the AAA is fatal to the recordation of the enhancement lien.

FOOTNOTES

 
i. Sunshine Promotions, Inc. v. Ridlen, 482 N.E.2d 1369 (Ind. App.1985).

ii. Drake v. Department of Natural Resources, 453 N.E.2d 288 (Ind. App.1983).

iii. Shlens v. Egnatz, 508 N.E.2d 44, 46 (1987 Ind. App.). See also, Board of Commissioners of Clay County v. DNR, Northern Coal, 5 Caddnar 151, 152 (1990); and Kuss v. DNR and Prudential Insurance, 5 Caddnar 51, 54 (1989).

iv. The Department argues in the Claimant's (sic., Respondent's] PostHearing Brief" that the agency decision to file an enhancement lien against the property is not reviewable. "[T]he Claimant cannot argue against the decision to file the lien as it is a decision to issue a complaint, summons or similar accusation under IC 4-21.5-2-5(8) and thus specifically exempt from the AAA." Respondent's Brief, Footnote 1, Page 2. The Department errs in three respects. First, the interpretation by the Department would unduly constrict the broad legislative mandate contained within the administrative adjudication act. The AAA "creates minimum procedural rights and imposes minimum procedural duties." IC 4-21.5-2-1. Also, the AAA "applies to an agency, except to the extent that a statute clearly and specifically provides otherwise." IC 4-21.5-2-3. The interpretation sought by the Department would emasculate the AAA and deny procedural rights in the absence of a legislative directive to do so. Second, an "enhancement lien" is not accusatory and is not intended to penalize the recipient. The design of an enhancement lien is to reimburse the public for expenditures on private lands, which if unreimbursed, will result in a windfall or unjust enrichment to the landowner. A notice of violation, cessation order, penalty assessment, or "show cause" order may qualify as a "complaint, summons or similar accusation", but an enhancement lien does not. Third, IC 4-21.5-2-5(8) merely exempts from administrative review the agency decision making process as to whether or not to proceed with an enforcement action. The primary practical consequence of this subdivision is that an agency decision not to take an enforcement action against one person does not, in turn, give rise to a right of administrative review by another person. Additionally, an agency action is not subject to administrative review merely because the agency took an enforcement action against one person and opted not to act under similar circumstances against another. The fallacy of the Department's argument is highlighted by IC 4-21.5-3-8, the section which controls most agency sanctions. Section 8 requires that an agency sanction be initiated with the filing of a "complaint". The sanction does not become effective until the completion of an administrative proceeding under the AAA. If the Department's interpretation of IC 4-21.5-2-5(8) were accurate, the recipient of a "complaint" filed according to IC 4-21.5-3-8 could not obtain administrative review of the complaint. The Department's interpretation would result in an absurdity and deny due process. A statute will not be interpreted in a manner which does not fully implement the legislative design or which results in an unconstitutional application. Willis v. State, 492 N.E.2d 45 (1986 Ind. App.).

v. Direct testimony of C. David Matthews, transcript of hearing record ("Record"), 223. Also, Matthews cross-

 

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examination, Record 264 and 265. See, also, from the written appraisal by Matthews a cover letter dated September 29, 1987. "The before value (of the property] assumes no reclamation work has been done and the after value assumes all reclamation work has been completed. The reclamation work was not complete on the last date of the inspection." Respondent's Exhibit J.

vi. Matthew testimony, Record 264, line 4.

vii. Testimony of Ray Brumfiel, Record 202 and 203. Gordon Curtis also testified extensively to what could, with predilection by the factfinder, be viewed as incomplete but progressing revegetation efforts. Illustrative is Record 542.

viii. Testimony of David Czarnowski, Record 438.

ix. Testimony of Gordon Curtis, Record 521.

x. Curtis testimony, Record 536.

xi. The Department stipulated at hearing that no rules have been adopted concerning the application of enhancement liens. Record 152, lines 13 and 14.

xii. A recent example of a conscious decision by the Indiana general assembly to direct the Department to define, by rule, the phrase significant environmental harm" is found in Public Law 101-1990 which regulates the lowering of lakes as a result of the activities of large water withdrawal facilities. SECTION 13 of that law mandates that the Commission "adopt rules under IC 4-22-2 before July 1, 1991, to determine what events constitute a significant environmental harm under IC 13-2-2.6."

xiii. Illustrative is the testimony of Ray Brumfiel, Record 154, lines 9 and 10. Question: "'Significant' is not defined anywhere, is it?" Answer: "No, well, no, not really."


xiv. Testimony of Ray Brumfiel, Record 121, line 23 through 123, line 22. The draft document was entered into evidence, "not for the truth of the matter asserted," and not "to state any truth of rule, regulation or promulgated [promulgation] by the Federal government, but only that it is the source of information that" Brumfiel utilized. Record 124.

xv. When asked on cross-examination whether IC 13-4.1 was "vague on the notice requirements," Brumfiel answered, "Yes." Record 180, line 12.

xvi. Claimant's Exhibit 9 admitted through the testimony of Ray Brumfiel. Record 323 and 324.

xvii.Testimony of Ray Brumfiel. Record 184 and 185.

xviii. Record 185, lines 13 through 17.

xix. As discussed previously, notice of an initial determination to impose an enhancement lien must also be provided according to the administrative adjudication act. See, particularly, IC 4-21.5-3-5.

xx. Testimony of David Czarnowski. Record 370. See, also, testimony of Linus Stenftenagel. Record 307.