Summary judgment is granted to the respondents. Docket #G-14,814 is approved.
FINDINGS OF FACT
1. On October 19, 1992, Tommy and Pamela Kleve Pendleton (the "claimants") filed a petition of objection to Docket #G 14,814 (the "Permit").
2. The permit was issued to William Campbell on September 18, 1992, and granted permission to build a low water ford crossing across an unnamed tributary to Logan Creek in Dearborn County.
3. IC 4-21.5, IC 13-2, and 310 IAC 0.6-1 and -3 apply to this proceeding.
4. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3.
5. As defined in IC 4-21.5, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
6. The Natural Resources Commission (NRC) is the ultimate authority for this type proceeding.
7. A prehearing conference was held in Lawrenceburg on November 25, 1992.
8. At the phc, the claimants raised two issues for litigation:
a. The claimants petitioned for an informal public hearing before issuance of the permit but none was held, and
b. Mr. Campbell has violated permit condition 41 by leaving debris in the floodway.
9. The respondents filed a joint motion for summary judgment (the "motion") on March 23, 1993.
10. In the motion, the respondents articulate three basis for disposition of this case.
11. The first basis, dealing with the lack of a timely filing by the claimants, is in dispute.
12. The Department claims a mailing on September 21, 1992.
13. The claimants present an envelope postmarked October 8, 1993, and declare it to be carrier of the notice of the issuance of the permit in question here.
14. Since the claimants' objection was filed on October 19, 1992, and IC 4-21.5 allows a total of 18 days for such filing (15 days plus 3 days for service through the U.S. mail), the date of mailing is key.
15. Since the material fact of the date of mailing is in dispute, summary judgment many not be granted on this issue.
16. However, this issue is immaterial if summary judgment is granted as to the facts of the case.
17. The next issue deals with the lack of an informal public hearing prior to issuance of the permit.
18. In order to hold an informal public hearing the Department must receive a petition signed by 25 or more individuals who are at least 18 years of age and who live in the county where the permit action would occur (Dearborn) or who own real estate within one mile of the site of the action. (310 IAC 0.6-3-2.3(b)).
19. On the petition must appear the complete mailing addresses of the petitioners, an affirmation of qualifications contained in Finding 18, and an identification of the application for which a public hearing is being sought. (310 IAC 0.6-3-2.3(c, d, e)).
20. In past cases before the Division of Hearings the alj has given wide latitude in construing the effectiveness of petitions which do not exactly conform to specified format.
21. The alj would be inclined to do the same in this case if there was any evidence to show that the petition had been filed prior to the date of issuance of the permit.
22. By affidavit, the appropriate Department employee swears that a diligent search of the applicable records shows no petition was received prior to the filing with the Hearings Division on October 19, 1993.
23. Obviously, the Department cannot conduct a public hearing if no petition is received.
24. Further, the claimants' due process rights are being fully
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protected by this administrative review before the NRC.
25. The last issue deals with the allegation that the permittee has violated condition #1 placed upon the permit, such condition reading as follows: "no felled trees, brush, or other debris be left in the floodway of the stream."
26. The motion contends, by affidavit of a Department hydraulic engineer, that no violation of condition #1 has occurred.
27. The claimants contend that the question of whether such a violation has occurred is one of fact and must be disposed of by conducting an evidentiary hearing rather than by summary judgment.
28. The claimants are probably correct as to a determination of whether or not a violation has occurred but such an occurrence is immaterial to this case.
29. When a permit application is objected to, the alj hears the case de novo. That is, he returns to a point prior to the issuance of the permit, examines the evidence/applicable law, and makes an independent determination as to whether the permittee qualifies for issuance of the permit. (See Indiana DNR v. United Refuse Company, Inc. (1993) 615 N.E.2d 100)
30. A violation of a permit condition could not occur until after the permit is issued.
31. Accordingly, such an alleged violation could be the subject of another administrative proceeding under IC 14-3-3-22 and IC 13-2-22-13(f - i) if the Department decides to pursue a Complaint or IC 4-21.5 if an effected person is aggrieved by a DNR failure to act.
32. Since the claimants have presented no material facts in dispute that would cause the alj in his de novo review to convene an evidentiary hearing, a ruling on the motion is indicated.
33. The joint motion for summary judgment filed by the respondents is granted.