FINAL ORDER
A final order of dismissal is entered against the Department of Natural Resources under Administrative Cause Number 96-065W. A final order of dismissal is entered against Lula Owsley under Administrative Cause Number 99-164W. A person who wishes to seek judicial review of either or both of these proceedings must file a petition in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.
FINAL ORDER OF DISMISSAL
1. Four status conferences have been conducted in these proceedings (July 27, 1999; October 21, 1999; November 22, 1999; and January 25, 2000), and several others were continued at the requests of the parties. On six occasions, the parties filed status reports (August 15, 1997; October 21, 1998; March 16, 2000; June 20, 2000; August 7, 2000; and November 20, 2000) rather than participate in status conferences.
2. In the final Status Report on behalf of the parties filed on November 20, 2000, it was reflected in pertinent part:
Comes now the Department, by Counsel, and provides the following status report with the agreement and consent of counsel for Lula Owsley as follows:
. . . .The parties continue to believe that the additional modeling, when complete, may provide a basis upon which the parties can reach settlement. However, the parties also acknowledge that given the age of this cause, adjudicatory procedures should move forward. . . .Therefore, to provide an opportunity to complete the modeling that is currently underway while also anticipating adjudicatory proceedings in the event settlement cannot be reached; the parties respectfully request the following schedule in anticipation of ultimate hearing. Final Witness and Exhibit lists shall be exhanged not later than April 30, 2001 and all formal discovery shall be completed by July 31, 2001 in anticipation of a hearing in August 2001.
3. In keeping with the parties' final Status Report, the administrative law judge made an "Entry in Anticipation of Hearing and Notice of Hearing" on December 15, 2000. The entry provided for an exchange of witness and exhibit lists by April 30, 2001 and the completion of discovery by July 31, 2001. ...[T]he hearing was set for August 28, 2001 at 9:30 a.m., EST, in Conference Room 2, Indiana Department of Administration Conference Center, Indiana Government Center South, 402 West Washington Street, Indianapolis, Indiana.
4. In response to the order, the "List of Witnesses and Exhibits of Respondent Department of Natural Resources" was filed on April 17, 2001.
5. Owsley filed her first "Motion for Enlargement of Time to File Final Witness and Exhibits Lists"
[VOLUME 8, PAGE 176]
on April 30, 2001 and another "Motion for Enlargement of Time to File Witness and Exhibit Lists" on June 12, 2001. Both these motions were granted, but Owsley has never filed either a witness list or an exhibit list.
6. The administrative law judge and the court reporter for the Natural Resources Commission appeared for hearing as scheduled on August 28, 2001.
7. Neither of the parties appeared for the hearing of August 28, 2001.
8. An administrative law judge may, on its own motion, enter a proposed order of dismissal under IC 4-21.5-3-24 if a party fails to attend or participate "in a prehearing conference, a hearing, or other stage of the proceeding." 312 IAC 3-1-9(b)(1).
9. With the failure of the Department and Owsley to appear for the August 28, 2001 hearing, the Administrative Law Judge entered a "Notice of Proposed Dismissal" for both proceedings. The dismissal was directed to the Department in 96-065W and against Owsley in 99-164W. The parties were provided until September 13, 2001 to show good cause why a final order of dismissal should not be entered.
10. On September 11, 2001, the Department filed its "Motion Requesting Final Order of Dismissal Not Be Imposed" on the basis neither party had the hearing "on their calendars" and because they were still negotiating.
11. Neither of these excuses are good cause for failure to appear. If failure of a party to calendar a hearing were good cause for its failure to appear, no one would ever be required to participate in a hearing. A party that never places a hearing notice on its personal calendar could never be dismissed or defaulted. Also, settlement negotiations have been pending in these proceedings for years-initially in terms of an after-the-fact permit application (that was denied and became Administrative Cause Number 99-164W), and later in terms of a remediation plan that was to have been based on modeling completed in November 2000.
12. Owsley filed nothing in response to the proposed dismissal.
13. Even so, the administrative law judge was loath to enter a final order of dismissal against the parties and deferred taking final action.
14. Another six months have passed, with no substantive filing by either party and no reported progress toward a final resolution.
15. An administrative law judge may enter a proposed dismissal under IC 4-21.5-3-24 if the party responsible for taking action does not take action for a period of at least 60 days. 312 IAC 3-1-9(b)(3).
16. "Indiana decisions have long affirmed the ability of a trial court to dismiss a pending action for want of prosecution . . . . The basis for such authority arises from the administrative discretion vested in a trial court in the conduct of its business." Farinelli v. Campagna, 338 N.E. 2nd 299, 300 (Ind. App. 1975).
17. The policy underlying a court's authority to dismiss an action, for failure by a claimant to diligently prosecute the action, also rests by analogy with an agency on administrative review. When a reasonable time has passed without final disposition, the proceeding should be dismissed. wells Fargo Bank v. Goldzband, 61 Cal. Rptr. 2nd 826, 53 Cal. App. 4th 596 (Cal. App. 5th 1997).
18. Dismissal for failure to prosecute is a remedy within the reasonable discretion of an agency on administrative review. Colantuovi v. Macomber, 807 F.Supp. 835, 838 (U.S. Dist. Ct., D.C. 1992); and Nat. Rural Util. Co-op., Fin. v. P.S.C., 528 N.E.2d 95 (Ind. App. 1998).
19. A final order of dismissal should be entered under 312 IAC 3-1-9(b)(1) against the Department of Natural Resources with respect to Administrative Cause Number 96-065W and against Lula Owsley with respect to Administrative Cause Number 99-164W. The basis for the dismissals is the failure of either party to appear as scheduled for hearing on August 28, 2001. From their responses regarding witness and exhibit lists as
[VOLUME 8, PAGE 177]
anticipated by the "Entry in Anticipation of Hearing and Notice of Hearing," both parties had actual knowledge of the hearing. Neither party has demonstrated good cause for failure to appear for the hearing. The failure to appear is aggravated because neither party has subsequently taken action to prosecute their claims, neglect that in itself would constitute grounds for dismissal under 312 IAC 3-1-9(b)(2).