ORDER
[NOTE: ON OCTOBER 05, 1995, PETITIONER TOOK JUDICIAL REVIEW IN THE OWEN CIRCUIT COURT (60C01-9510-CP231). ON JUNE 23, 1998 CAUSE WAS DISMISSED BY OWEN CIRCUIT COURT JUDGE, FRANK M. NARDI.]
1. A Notice of Violation is issued against the Estate of Joe M. Creagor and Tim Helton under IC 14-3-3-22.
2. The Estate of Joe M. Creagor, personal representative, Mr. David Leveque, is ordered to pay a penalty of $2,000 for violation of IC 13-2-22.
3. Tim Helton is ordered to pay a penalty of $10,000 for violation of IC 13-2-22.
4. The Estate of Joe M. Creagor and Tim Helton are ordered to restore the site in question to its approximate condition before the illegal work was begun by November 30, 1995 or, in the alternative, negotiate an agreement with the department before the above date.
5. If the requirements of #4 above are not met, a charge will be assessed under IC 14-3-3-22. The charge will be $1,000 per day against each violator, beginning December 1, 1995, and ending December 30, 1995 for a total charge of $30,000 each.
6. The department is awarded nine thousand six hundred thirty-one dollars ($9,631.00) as the cost of breaching the dam. The Estate of Joe M. Creagor and Tim Helton are severally and jointly liable for this amount.
FINDINGS OF FACT
1. On June 7, 1993 the department of natural resources (the "DNR") filed with the natural resources commission (the "NRC") division of hearings a Complaint for Issuance of a Notice of Violation and the Imposition of Penalties (the "complaint") against Joe M. Creagor and Tim Helton.
2. In the complaint it is alleged that Mr. Creagor and Mr. Helton placed fill in the floodway of an unnamed tributary of Plummer Creek near Owensburg in Greene County, Indiana without a permit from the DNR.
3. The fill in question was in the form of a dam.
4. At the prehearing conference held on June 8, 1993 Mr. Creagor agreed to seek a permit for the structure. This was never accomplished.
5. IC 4-21.5, IC 13-2, IC 14-3, and 310 IAC 0.6 apply to this proceeding.
6. The DNR is an agency as defined in IC 4-21.5-1-3.
7. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
8. Pursuant to IC 13-2-22 and 14-3-3, the NRC is the ultimate authority for this type proceeding. Tim Rider was assigned this case as the NRC Administrative Law Judge (ALJ).
9. Mr. Creagor died testate on October 23, 1993. Later, the ALJ substituted the estate of Joe M. Creagor, David Leveque, personal representative, as party replacing Joe M. Creagor.
10. Evidence indicates that the fill in question is in the floodway of an unnamed tributary to Plummer Creek and is subject to the permit requirements of IC 13-2-22.
11. By Emergency Order (EO) on February 22, 1994, the department ordered the respondents to breach the dam in a controlled manner.
12. Such breach was justified by a declaration that the dam had become dangerous to life and property.
13. The Estate maintains that it had no resources to accomplish the breach, and Mr. Helton ignored the EO.
14. Accordingly, the department accomplished the breach, and it now seeks costs.
15. The Estate does not dispute the facts of the case, and has only attempted to mitigate any penalty by pointing out that attempts to obtain a permit were made and that Mr. Creagor's death short circuited the process.
16. The respondent estate has raised questions as to whether or not it is responsible for penalties and charges owed by Mr. Creagor and as to the timeliness of the DNR's filing a claim(s) against the estate.
17. The ALJ finds that the estate can be held responsible for Mr. Creagor's penalties and charges.
18. Since the estate would profit from any beneficial use of land during Mr. Creagor's lifetime, it must be prepared to suffer the consequence of any irresponsible or illegal use.
19. The court in which the will is probated will determine whether any claim against the estate filed in a timely manner. The ALJ only determines if a claim exists.
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20. In determining penalties under IC 13-2-22, the ALJ must consider matters which would tend to mitigate the amount to be assessed.
21. In determining charges under IC 14-3-3, the only determining factor will be whether or not the person responsible for acting performs as ordered by the NRC.
22. In other words, penalties are assessed for past bad conduct while charges are only assessed if a person does not act properly in the future.
23. Accordingly, the ALJ takes into account the fact that Mr. Creagor and his Estate have actively participated in this litigation in an effort to bring it to a conclusion and that Mr. Leveque attempted to lower the water level as promised.
24. Mr. Helton has failed to respond to numerous directives from the court, and apparently has made no effort to resolve the issues contained in the complaint.
25. In this case, the NRC's primary goal should be reclamation of the site. However, Mr. Helton's failure to participate, and the contempt he has shown for the court orders, requires a stiff penalty.
26. Further, the department is entitled to
collect the expense involved in breaching the dam, such costs falling upon both respondents.