[NOTE: AFFIRMED IN PART ON JUDICIAL REVIEW, THEN OUTSTANDING ISSUES WERE DISMISSED. SEE BELOW.]
The Allen County Board of Commissioner's Application for Construction in a Floodway first granted by the Natural Resources Commission on March 28, 1989, is affirmed.
FINDINGS OF FACT
1. On April 4, 1989, Thomas E. Dustin on behalf of the Indiana Division of the Izaak Walton League of America, Inc. and Ted Heemstra on behalf of the Stockbridge Audubon Society, Inc., (the "Claimants"), filed a verified petition for review and for stay.
2. The Claimant's petition was in regard to an order by the Natural Resources Commission (the "Commission") dated March 28, 1989, which granted a certificate of approval to construct in a floodway to the Allen County Board of Commissioners (the "County").
3. The stay request was dealt with in separate proceedings.
4. On June 16, 1989, the County filed a Motion to Intervene which was granted on July 5, 1989.
5. IC 4-21.5, IC 13, and 310 IAC 0.6 apply to this proceeding.
6. The Commission is an agency as defined in IC 4-21.5-1-3 and is the ultimate authority for this proceeding.
7. The Claimants filed a statement of issues on October 4, 1989.
8. At a status conference on October 6, 1989, the administrative law judge and the parties synthesized the Claimant's proposed issues.
9. The synthesization process produced seven issues as follows:
a. Can the Respondent clearly prove that the project will not result in unreasonably detrimental affects upon fish, wildlife and botanical resources? (Issue-1) b. Is an environmental impact statement needed prior to approval of this permit? (Issue-2) c. Will the deposit of spoil behind the Lakeside Middle School adversely affect the efficiency of or unduly restrict the floodway either by itself or in regard to its cumulative effect? (Issue-3) d. Are there other cumulative effects that would cause denial of the permit? (Issue-4) e. Should the conditions subsequent attached to the permit be conditions precedent so adequate monitoring can take place? (Issue-5) f. Did the Natural Resources Commission need to enter findings under IC 13-2-22-15 as to adverse affect or interference with flood control in the State? (Issue-6) g. Is the study of the project deficient because of an inaccurate statement of the benefits? (Issue-7)
10. On October 30, 1989, the County filed a Motion to Dismiss this case due to the failure of the Claimants to establish a requisite jurisdictional basis for their petition.
11. On December 28, 1989, the administrative law judge denied the Motion to Dismiss citing IC 13-6-1-1(d) as supplying the requisite authority for allowing the Claimants to "intervene" in the process by which the Department approved a permit for the County.
12. On January 29, 1990, the County filed a Motion for Summary Judgment as to issues-2, 5, 6, & 7.
13. On February 12, 1990, the Department filed a Concurrence with the County's Motion, and additionally, asked for Summary Judgment on Issue-4.
14. The Claimants filed a response to the Motions on February 13, 1990.
15. On March 14, 1990, the administrative law judge granted summary Judgment to the Department and the County as to Issues 2, 5, 6, 7 and denied Summary Judgment as to Issue-4.
16. The administrative law judge's rulings were as follows:
a. Issue-2 goes to the need for an environmental impact statement prior to the approval of this permit. IC 13-1-10-6 specifies that such a statement is not required for the issuance of a permit by a state agency.
b. Issue-4 deals with the cumulative effects portion of IC 13-2-22-13(d). Any cumulative effect is a question of fact and the
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administrative law judge is not prepared to preclude any possible cumulative effect category as being disposed of as a matter of law. Perhaps the Claimant will only raise the cumulative effects issue at hearing in regard to fish, wildlife and botanical resources. The administrative law judge does not have enough information to preclude examining such effects as to other portions of the floodway statute.
c. Issue-5 alludes to whether conditions subsequent should have been conditions precedent for monitoring purposes. The Respondent's point is well taken that monitoring cannot begin until the project begins. Most of the conditions on this permit are actually conditions concurrent. That is, the conditions run concurrently with the progress of the project. From a legal sense, the administrative law judge sees no other way to monitor the project. Conditions that must be satisfied before the project starts (conditions precedent) do not provide a monitoring capability.
d. Issue-6 deals with whether or not the Commission was required to enter findings under IC 13-2-22-15. The statute clearly indicates that a form of findings is required only if the application is disapproved. In this case, the application was approved so there is no legal requirement for findings in any form.
e. Issue-7 goes to a possible inaccurate statement of benefits being submitted to the Commission. A careful reading of IC 13-2-22-13 shows no requirement for a statement of benefits. The statute is a "negative" statute that requires an applicant to show that his project will not do such things as adversely affect, unduly restrict, constitute an unreasonable hazard, etc. If the administrative law judge is to hold a de novo hearing on this type issue, he would not require a statement of benefits. Therefore, a factual argument about how accurately the benefits are stated is immaterial to the issues at bar.
17. On June 6, 1990, the County announced that it no longer planned to place spoil behind the Lakeside Middle School. This statement negated Issue-3.
18. Also, on June 6, 1990, the administrative law judge ordered the depositions of Jack Sunderman, James Tobolski and James Haddock be published.
19. The hearing held on June 6 and 7, 1990, dealt only with Issues 1 and 4.
20. Issue-1 deals with the portion of IC 13-2-22-13(d) which requires the County to "clearly prove that... (its flood control project) ... will not result in unreasonably detrimental affects upon fish, wildlife, or botanical resources."
21. The key word in the statute is unreasonable because there will clearly be short-term detrimental effects.
22. The County has proposed a mitigation plan (the "plan") which it claims will improve the fish, wildlife and botanical resource condition of the area long term.
23. The first question to be answered is whether the short-term damage would be reasonable if mitigated in the long term.
24. It is logical to conclude that this type of mitigation is reasonable.
25. It would be unreasonable to conclude otherwise because any project to be undertaken in an area with a great deal of fish, wildlife, and botanical resources would have to cause some damage to the environment.
26. It seems that the best possible way to repair this inevitable damage would be to develop a way to mitigate prior to the occurrence of the damage.
27. The second question to be answered is: will the plan repair the damage to the point of the damage being reasonable?
28. The subparts of this question are: will the plan work at all; and even if it will, does the mitigation occur so far in the future as to make it unreasonable?
29. Much conflicting testimony was received at hearing as to the future effectiveness of the plan.
30. The plan contemplates removing about 15.5 acres of replacement wetlands.
31. Under the plan trees would be replanted at least a two to one ratio.
32. The "edge effect" along the river bank would be developed in greater quantity than what is taken.
33. Other portions of the plan would provide for deep water pond(s) for fish, elongated islands, boulders placed in the river and dredging of sediment.
34. A major area of concern to the Claimants is the loss of riverine forest. It is clear that the west side of the river will experience a significant short term loss of trees.
35. Dan Ernst, a forester who helped develop the forestry portion of the plan, testified that the loss would not be significant; that this area was good for tree growth; and that the whole area would return in about 60 years.
36. James Tobolski, biology professor, was called by the Claimants and disputed much of the Dan Ernst testimony.
37. Mr. Tobolski's testimony was based on a walk through and three hours of research three or four days prior to the hearing. He also testified that he was opposed to the project because of the cost and that he did not know if
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the mitigation Plan would work.
38. Other evidence showed that the extensive riverine forest on the East side of the river would not be touched.
39. Keith Poole, a biologist with the Department, testified extensively as to the affect on fish and wildlife.
40. Mr. Poole pointed out that many conditions had been placed on the County's permit so as to protect fish and wildlife. He opined that the area in question will suffer only short term losses, and hopefully, long term gains.
41. Mr. Poole summarized by stating there would be no unreasonable detriment to fish and wildlife.
42. The Claimants used James D. Haddock, biology professor, to counter Mr. Poole. However, Mr. Haddock stated he did little sampling and had no direct knowledge of the Maumee River, but rather he applied data from like areas.
43. The thrust of Mr. Haddock's testimony was that there would be an immediate effect on invertebrates due to the loss of riverine forest. He had no testimony as to the long term effects of the mitigation plan.
44. The Claimants presented testimony as to the problems that would occur if the mitigation plan is not followed due to possible lack of funds.
45. The administrative law judge would exceed his authority if he denied this permit on this type of speculative occurrence.
46. The decisive witness was Christopher B. Burke, P.E., President of Engineerng, LTD, Rosemont, Illinois. Mr. Burke's firm was involved in the engineering studies for this project.
47. Mr. Burke presented impressive engineering credentials and had published two writings in regard to this project: technical hydrology and mitigation efforts.
48. Mr. Burke has much experience with mitigation plans similar to the one here and their affect upon botanical resources.
49. Mr. Burke testified that the plan here will be effective and will adequately compensate for the damage done early on.
50. Notable testimony was also given by Scott Pruitt, biologist for the US Fish and Wildlife Service, and Jim Ray, biologist and Senior Environmental Manger for the Indiana Department of Environmental management (IDEM).
51. Mr. Pruitt objected to the mitigation plan because he maintained that it had not been sufficiently proven by scientific means.
52. Mr. Ray presented the official IDEM position that the sediment load will not be increased by the plan; therefore, the plan was adequate as to water quality and that includes the affect of water on fish, wildlife, and botanical resources.
53. The testimony in the aggregate tends to show that while there will be a detriment to fish, wildlife and botanical resources early in the project, a mitigation plan has been designed to have a long term, beneficial effect on same.
54. The careful crafting of this mitigation plan and expert testimony as to its probable success clearly shows that the overall effect on the environment will not be unreasonable and will probably be beneficial in the long term.
55. A finding of long term benefits also negates Issue-4 because any cumulative effect of this project would add to the ecology of the area rather than subtracting from it.
56. There are no cumulative effects apparent that would cause the denial of this permit.
Edward J. Meyers, Judge, made the following entry on March 21, 1991:
"The Court now overrules plaintiffs' [Dustin, et al.] motion to remand or in the alternative to compel agency action and for an extension of time to file transcript as further evidence is not necessary to rule on the legal issues presented by the motions for summary judgment.
The Court having taken under advisement plaintiffs' motion for summary judgment and defendant, Department of Natural Resources Commission's motion for summary judgment, now finds that two issues have been presented to the Court in the motions for summary judgment as follows:
1. Is an environmental impact statement needed prior to approval of a permit;
2. Is the study project deficient because of an inadequate statement of benefits.
The answer to issue one (1) is "No", see IC 13-1-10-6;
the answer to issue two (2) is "No", see IC 13-2-22-13(d); and the briefs filed by defendant's counsel.
The Court now overrules plaintiffs' motion for summary judgment and sustains defendant, Department of Natural Resources Commission's motion for summary judgment.
On May 1, 1991, the Whitley Circuit Court approved a stipulation of dismissal tendered by the parties. (Whitley Circuit Court, Thomas E. Dustin, et al. v. State of Indiana, Department of Natural Resources, Natural Resources Commission and Allen County Board of Commissioners, Cause No. 92C0l-9012-CP-454)