FINAL ORDER OF DISMISSAL
1. The "Hammond Port Authority's Motion for Summary Judgment" was filed on June 19, 1998; the motion is supported by various affidavits and briefs. The "Department's Motion for Summary Judgment" was filed on June 25, 1998 and is also supported by various affidavits and briefs. On July 30, 1998, Charlene J. Hanlon ("Hanlon") filed a letter in which she responded to these motions. The motions and response to the motions are ripe for final action.
2. The motions by the Hammond Port Authority ("HPA") and the Department of Natural Resources ("DNR") raise a number of issues, some of which are procedural and some of which address the substance of administrative review. Because the correspondence initiating administrative review is found not to be timely under any theory, the Natural Resources Commission (the "Commission") is found to lack subject-matter jurisdiction over this proceeding. For this reason, the substantive issues cannot be addressed.
3. On September 22, 1988, the DNR issued Permit LM-62 to the City of Hammond for the construction of a boat marina facility. DNR Exhibit A, Affidavit of Michael Neyer, p. 1, (paragraphs) 5 and 6. A portion of the project included construction of approximately 1,045 feet of binwall bulkhead and approximately 2,240 feet of rubble mound breakwater. DNR Exhibit B and C.
4. Permit LM-62 was revised on December 16, 1988 with a permit designated by the DNR as LM-62, Rev. 1. DNR Exhibit A, Affidavit of Michael Neyer, p. 1, paragraph 7. The revision provided in part that the "revised project will necessitate construction of approximately 850 lineal feet (down from 1,045 feet originally approved) of binwall bulkhead, and approximately 4,600 lineal feet (up from 2,240 feet originally proposed) feet [sic.] of rubble mound breakwater. The increase in length for the rubble mound breakwater is due to a change in design concept which will replace the conventional breakwater with a dual breakwater arrangement. . . . The submerged (outermost) rubble breakwater will be located approximately 1600 feet lakeward of the shoreline. . . . The main (inner) rubble breakwater will be located approximately 1450 feet lakeward of the shoreline. . . ." DNR Exhibit F. LM-62, Rev. 1 contained condition 13 which required that a monitoring program for the dual breakwater be developed immediately and implemented throughout the five year life of the permit. DNR Exhibit E.
5. On July 21, 1995, the DNR issued to HPA Permit LM-98 to accommodate the placement of a gaming boat and related facilities. DNR Exhibit G. This permit authorized, among other things, the creation of a mooring basin by the removal of approximately 7,200 cubic yards of material.
6. On May 28, 1996, Hanlon filed correspondence with the Commission in which she expressed concerns as to the integrity of the breakwater licensed under Permit LM-62, Rev. 1 and the dredging to accommodate the gaming boat licensed under Permit LM-98, although she did not reference either permit by number. Finding the correspondence might be deemed a petition for administrative review under IC 4-21.5 (the "administrative adjudication act" or "AOPA"), an administrative law judge for the Commission on May 29, 1996 set the matter for a prehearing conference.
7. The AOPA provides the procedures by which an affected person may seek administrative review of licenses
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and many other orders which may be issued by many state agencies, including the Commission. The AOPA applies to this proceeding.
8. An Indiana state administrative agency has only those powers conferred to it by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995) and Michigan City Historical Society v. DNR, 5 Caddnar 169 (1990). The Commission may act in this proceeding within, and only within, the procedural boundaries defined by the Indiana General Assembly within the AOPA.
9. Failure to satisfy the time constrictions in the AOPA is jurisdictional. Where a petition is not filed on time, a proceeding must be dismissed. Hoosier Environmental Council v. Department of Natural Resources, Ind. Ct. of Appeals, 673 N.E.2d 811, rehearing denied, transfer denied 683 N.E.2d 596 (1996). A motion to dismiss should be granted where a request for administrative review is not timely filed. South Central Community Mental Health Centers, Inc. v. DNR and Jones, 7 Caddnar 114 (June 20, 1996)
10. The AOPA provides in IC 4-21.5-3-7 that a petition for administrative review must generally be filed within 15 days of the issuance of an order by the agency. Hanlon filed her correspondence nearly eight years after the issuance of Permit LM-62, Rev. 1 and more than ten months after the issuance of Permit LM-98. Clearly, her correspondence was not filed within the time frames required by the AOPA with respect to either LM-62, Rev. 1 or LM-98.
11. Reference is also made to Permit LM-110 issued by the DNR to the HPA on April 25, 1997. DNR Exhibit H and Affidavit of Michael Neyer, DNR Exhibit A, p. 2, paragraphs 9 through 13. Because Permit LM-110 was not even issued until nearly a year following the correspondence by Hanlon which initiated this proceeding, that correspondence could not possibly have provided a lawful basis for administrative review of Permit LM-110.
12. HPA and DNR have submitted affidavits and other matters outside the pleadings to support their motions. Generally, these submissions anticipate a motion for summary judgment. Connecticut Indem. Co. v. Bowman, 652 N.E.2d 880 (Ind. App. 1995). This result does not follow where the motions seek dismissal based upon subject-matter jurisdiction. Foshee v. Shoney's, Inc., 637 N.E.2d 1277, 1280 (Ind. 1994).
13. The May 28, 1996 correspondence by Hanlon cannot lawfully form the basis for
administrative review of Permit LM-62, Rev. 1; Permit LM-98; or Permit LM-110 under any
theory. The correspondence is outside the time frames established by the Indiana General
Assembly for administrative review under the AOPA as applied to each of these permits. The
Commission lacks subject-matter jurisdiction, and the proceeding must be dismissed.