You are notified that the administrative law judge, acting on behalf of the natural resources commission as the ultimate authority in this proceeding, now enters a final order of dismissal against the claimant, Lynn Cooley. The reasons for the dismissal are as set forth:
1. In January 1993, Lynn Cooley filed a chapter 13 bankruptcy petition in the U.S. Bankruptcy Court for the Southern District of Indiana, Case No. 93-90111.
2. Joseph M. Black, Jr. was appointed trustee, and the bankruptcy is yet pending.
3. The property which is the situs of the present administrative claim is an easement, urged by Cooley to exist in his favor, on real estate owned by Don Jordon of Borden, Indiana. The easement was reserved prior to filing of the chapter 13 bankruptcy petition.
4. The property of a bankrupt estate includes "all legal and equitable interests of the debtor as of the commencement of the case." 11 U.S.C. 541 made applicable to chapter 13 proceedings by 11 U.S.C. 1306(a). A breadth of interests in realty are included, and a valid easement would qualify.
5. Generally, the trustee is the representative of the bankrupt estate pursuant to 11 U.S.C. 323 and has the capacity to sue and be sued.
6. If a debtor remains in possession of property in the estate, the debtor in possession may also pursue a claim with respect to that property. This principle applies to a chapter 11 bankruptcy as well as to a chapter 13 bankruptcy. 11 U.S.C. 323 and 1107; Notes of Committee on the Judiciary, Senate Report No. 95-989.
7. Cooley has not demonstrated that he remains in possession of property upon which a claim could be founded.
8. Because Cooley did not remain in possession of the estate, he lacks standing to bring the claim which is the basis of this proceeding. The real party in interest would be the trustee, Joseph M. Black, Jr.
9. Indeed, the trustee ordered the property to be sold at auction, subject only to easements in favor of Public Service Company of Indiana and to Borden Tri-County Regional Water District. Order by Frank Otte, Bankruptcy Judge (December 5, 1994), with attachments and Affidavit of Jay D. Allen. On December 9, 1994, the real estate was sold and an Order approving the sale and distribution of funds was entered by the U.S. Bankruptcy Court. This sale would also serve to terminate any standing Cooley might otherwise have to pursue this proceeding.
10. Finally, Cooley's claim is based upon IC 25-36.5-1. As provided in IC 25-36.5-1-3.2(c), a proceeding may be commenced at the request of a timber grower. A "timber grower" is an "owner, tenant, or operator of land in this state who has an interest in, or is entitled to, receive any part of the proceeds from the sale of timber." IC 25-36.5-1-1. An easement would not typically qualify its holder as a "timber grower." Assuming for the sake of argument that Cooley continues to enjoy the easement at issue, it would not qualify him as a "timber grower." Either Cooley would lack standing to pursue this claim, or it is a claim upon which relief cannot be granted.