Content-Type: text/html Cause #: 94-170r.v7.html

CADDNAR


[CITE: Morrison Estate v. Department and Black Beauty Coal, 7 CADDNAR 57 (1994)]

[VOLUME 7, PAGE 57]

Cause #: 94-170R
Caption: Morrison Estate V. Department and Black Beauty Coal
Administrative Law Judge: Lucas
Attorneys: pro se (Durnil); Biggs; Hustace
Date: December 2, 1994

ORDER

Summary Judgment is granted in favor of the Department of Natural Resources and against the Anna Morrison Estate on all issues. The bond releases entered by the Department on June 10, 1994 (and more particularly described in Finding 6) are affirmed. Entry of this final summary judgment is without prejudice to the Morrisson Estate to pursue any civil claim in a court o; competent civil jurisdiction.

FINDINGS OF FACT

1. The department of natural resources (the "Department") is an "agency" as defined in IC 4-21.5, sometimes referred to as the
"administrative adjudication act" or "AOPA".

2. Black Beauty Coal Company ("Black Beauty") conducts surface coal mining operations at its Prairie creek Mine in Daviess County, Indiana (the "mine"), under permit number S-00186 issued pursuant to IC 13-4.1 and 310 IAC 12 (collectively "Indiana SMCRA")

3. Indiana SMCRA is administered by the Department primarily through its division of reclamation (the "Division").

4. Following the completion of coal mining on a portion of the mine, Black Beauty conducted reclamation and sought from the Division an incremental bond release.

5. Employees of the Division conducted an inspection on May 5, 1994 to determine what areas, sought for release by Black Beauty, would qualify.

6. On June 10, 1994, Peter M. Sartoris, Field Supervisor for the Division, stated "that 10.1 acres of the 10.1 acres requested will be 60% released, 12.7 acres of the 12.7 requested will be 2S% released, 181.6 acres of the 181.6 requested will be 15% released" (the "bond release determination") .

7. Copies of the bond release determination were mailed to Black Beauty and to other interested persons, including the Estate of Anna Morrison ("Morrison Estate")., with a notification that an aggrieved person had 30 days in which to seek administrative review.

8. on Tune 27, 1994, Eileen Durnil acting as "Guardian" for the Morrison Estate, requested timely review.

9. The parties are the Morrison Estate, Black Beauty, and the Department. Jurisdiction is present over the person of the parties and over the subject matter of claims brought within Indiana SMCRA.

10. As defined in IC 4-21.5-1-15, the "ultimate authority" means the individual or panel in whom final authority for the agency is vested. Pursuant to IC 13-4.1-2-1(c), the administrative law judge is the ultimate authority for this proceeding. ii. Pursuant to IC 4-21.5-3-23, a party may move for summary judgment as to all or any part of the issues. "The judgment sought shall be rendered immediately [by the administrative law judge] if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law.

12. On November 14, 1994, the "Respondent DoR's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" was filed in which the Division contended it was entitled to a favorable judgment upon 310 0.6-1-10, Trial Rule 12(B)(6) or IC 4-21.5-3-23.

13. The facts do not appear to be in dispute, at least as those facts bear upon the jurisdiction conferred by Indiana SMCRA. The gravamen of the claim by the Morrison Estate appears to be based on an alleged contract breach by Black Beauty. As stated in the contentions by the Morrison Estate attached as Prehearing Exhibit C to the "Report of Prehearing Conference and Notice of Status conference" entered on September 13, 1994: Under the terms of our lease [with Black Beauty] item 14, Exploration Damages, it states the Leasee [sic.] shall restore as nearly as practical the surface of the ground to

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its former condition immediately upon completion of such exploratory operations. The ditch wasn't half on the Morrision property and half on the adjoining neighbor. This matter was discussed a couple of years ago, and agreed upon by BL&S to restore the ditch to its proper location. I sent Black Beauty, and the Department. . . , both a copy of the letter from Mike James of Black Beauty stating this matter would be taken care of. As of this date nothing has been done. Several matters were violated by BL&S, concerning our Coal Mine Lease. I am asking you to replace this ditch to its correct location, or a cash settlement to cover our loss.

14. In a letter dated September 14, 1994, the Morrison Estate sought to supplement the conventions contained in Prehearing Exhibit C. Citations were made to several statutes but those citations did not expand the claim beyond that of an alleged contract breach. Reference was made to several sections of IC 13-3-3.2, but this chapter applies only to activities of the Meridian Street Preservation Commission and has no application either to Indiana SMCRA or to activities in Daviess County. References were made to definition sections of Indiana SMCRA and to criminal sanctions for knowing violations of Indiana SMCRA (which may be pursued only by a county prosecutor), but neither do these citations shed light upon the present case. Finally, reference was made to 310 IAC 0.6-1-15 which establishes a process for obtaining review (sometimes called "special status determinations" or "quasi-declaratory judgments") but which establishes no substantive law requirements and which also has no application to the present case.

15. Once again, however, the September 14, 1994 letter points to the civil nature of its claim against Black Beauty. The "relief sought" by the Morrison Estate is a "cash settlement".

16. An administrative law judge for the natural resources commission lacks jurisdiction to determine a claim for breach of contract between two private parties or to other wise address claims for monetary damages resulting from an allegation of improper surface coal mine reclamation. An administrative agency, being a creature of statute, is only empowered to undertake those actions authorized by statute. Indiana State Bd. of Embalmers V. Kaufman, (1984 Ind. App.), 463 N.E.2d 513, 521. A civil claim must be brought in a court of competent civil jurisdiction (e.g.., the Daviess Circuit Court).

17. This tribunal lacks jurisdiction over the claim of breach of contract by the Morrison Estate against Black Beauty or to any other claim by the Morrison Estate for damages against Black Beauty based upon an allegation of improper surface coal mine reclamation.[FOOTNOTE 1]

18. The record of this proceeding demonstrates that the Department is entitled to summary judgment in its favor and against the Morrison Estate.[FOOTNOTE 2] No genuine issue exists and the Department is entitled to a judgment as a matter of law. Entry of the judgment should, however, be without prejudice to the Morrison Estate to pursue any civil claim in a court of competent civil jurisdiction.

FOOTNOTES

1. In a letter from the Morrison Estate file-marked on November 22, 1994, Eileen Durnil contends "we have suffered a loss on the ground, that we sold on the west side of the road, because of the ditches. We lost $500 an acre. Our ground across the road, sold for $2300 an acre. The west side of the road for $1,800 an acre. We feel that Black Beauty are [sic.] responsible for this loss. We are losing about two acres of ground, do [sic.] to the wrong location of the ditch." Black Beauty urges in a letter dated November 30 that this sale deprives the Morrison Estate from "standing" to pursue this claim. While this argument may have merit, it is unnecessary to disposition of the case. This most-recent filing by the Morrison Estate underlines that the claim is clearly civil in nature and beyond the jurisdiction of the present tribunal. on that basis alone, summary judgment must be granted against the Morrison Estate.

2. The record probably also appears to support a dismissal for failure to state a claim upon which relief can be granted under 310 IAC 0.6-1-10 and Trial Rule 12(B)(6).