[CITE: Marigold Mining, Inc. v. Department of Natural Resources, 5 CADDNAR
165 (1991)]
[VOLUME 5, PAGE 165]
Cause #: 90-068R
Caption: Marigold Mining,
Inc. v. Department of Natural Resources
Administrative Law Judge: Rider
Attorneys: Hargis; Law
Date: January 22, 1991
ORDER
Notice
of Violation N00305-S-00115 is affirmed.
FINDINGS OF FACT
1.
On March 22, 1990, Marigold Mining, Inc. (the "Claimant") filed a
request for review of Notice of Violation (NOV) N00305-S-00115.
2.
The Claimant holds permit S-00115 to conduct coal mining operations at its Sandhill #1 mine in Daviess County.
3.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
4.
The Natural Resources Commission is an agency as defined in IC 4-21.5-1-3 and
is the Ultimate Authority for this proceeding.
5.
The NOV was written by Steve Weinzapfel, an
authorized inspector from the Division of Reclamation (DOR).
6.
During the course of this litigation the Claimant has offered several different
defenses to the NOV. They are:
a. a miner has until bond
release to obtain approval of a postmining land use
change (Defense-1);
b. the DOR policy is confusing
in regard to postmining land use changes perpetuated
by the landowner (Defense-2); and
c. the Claimant had no
knowledge of the dwelling's construction; and therefore, cannot be held
responsible (Defense-3).
7.
An Analysis of law and the facts of this case show that none of these defenses
will cause the vacation of this NOV.
8.
The crux of this case is the fact that the landowner built a dwelling in the
permit area which was inconsistent with the reclamation plan.
9.
In early 1989, Mr. Bill Gunn, a representative of the Claimant, began to make
inquiries of the DOR as to the propriety of a landowner selling part of his
cropland for purpose of the purchaser building a residence.
10.
Mr. Gunn received an answer in the affirmative provided a postmining
land use change request was submitted for approval. Mr. Gunn passed this
information to the landowners, Mr. and Mrs. Wagler,
on May 11, 1989.
11.
The Waglers sold the property in question here
sometime before that date.
12.
The inspector, Mr. Weinzapfel, informed the Claimant at least five times, by
inspection report (Sep, Nov, Dec 89 and Jan, Feb 90), that a dwelling was being
built on a prime farmland area and that a postmining land use change needed to
be submitted.
13.
Mr. Gunn acknowledged receiving the aforementioned inspection reports.
14.
Finally, on March 5, 1990, Mr. Weinzapfel issued the
NOV in question here.
15.
On March 26, 1990, the Claimant finally submitted the necessary request for a postmining land use change.
16.
In regard to Defense-1 offered by the Claimant, it would be ludicrous to
construe provisions of IC 13-4.1 and 310 IAC 12 in such a manner as to find
that a miner can do what he pleases to the permit area, as long as the area
conforms to the reclamation plan at bond release.
17.
Provisions of 310 IAC 12-5-68(c) require that the permit area be restored in a
timely manner.
18.
Provisions of IC 13-4.1-1-2 charge the Department with assuring that adequate
procedures are undertaken to reclaim surface area as contemporaneously as
possible with surface coal mining operations (see IC 13-4.1-1-2(6)).
19.
The building of a dwelling on an area to be reclaimed as prime farmland
certainly violates the provisions cited above.
20.
Defense-2 alludes to alleged confusion in DOR procedures in regard to postmining land use change.
21.
Evidence presented shows no confusion at all. At that time DOR procedure
allowed the miner to avoid NOV, in most cases, by the timely submission of a postmining land use change request.
22.
Ms. Jo Haynes initially informed Mr.
[VOLUME 5, PAGE 166]
Gunn
that the dwelling could be built if a postmining land
use change request was submitted.
23.
Mr. Weinzapfel, on at least five occasions
(inspection reports) advised the Claimant that the submission of a postmining land use change request would cure the dwelling
construction problem.
24.
The Claimant failed to submit such a request until forced to as the termination
requirement for this NOV.
25.
Defense-3 holds that the miner cannot be held responsible because he lacked
knowledge of the construction.
26.
While the Claimant's representative may not have been informed of the beginning
of construction, there is plenty of evidence that there was ample notice
provided by DOR in inspection reports.
27.
The Claimant raises something he calls the "third party defense."
This defense would be available when a third party intrudes upon the permit
area swiftly and unbeknown to the miner.
28.
However, the third party defense would not permanently relieve the miner from
complying with the reclamation plan.
29.
The defense would only allow the miner a reasonable time to fix the damage or
to submit a postmining land use change request before
a NOV could be issued.
30.
This defense would only be available if the miner, using due diligence, could
not reasonably have known of the intrusion on the land.
31.
The third party defense could not be applied to this case because the miner was
informed of the construction.
32.
However, even if he had not been informed, the defense would not apply here
because of a dwelling is so apparent that the miner should be able to discover
it using due diligence.