ORDER
[NOTE: THE HEATHS TOOK JUDICIAL REVIEW ON DECEMBER 1, 2000. PETITIONERS REQUESTED NRC DECISION BE SET ASIDE. ON MAY 9, 2002, THE DEARBORN CIRCUIT COURT ISSUED "ORDER DENYING PETITION TO SET ASIDE NATURAL RESOURCES COMMISSION DECISION" FOLLOWS ADMINISTRATIVE FINDINGS AND CONCLUSIONS OF LAW. DEARBORN CIRCUIT COURT ORDER FOLLOWS ADMINISTRATIVE FINDINGS.]
Summary judgment is entered in favor of the Department of Natural Resources and against Terry Heath and Martha Heath as more particularly set forth in the Findings of Fact and Conclusions of Law. As a result, the claim by Terry Heath and Martha Heath against Wal-Mart Stores, Inc. in this proceeding is dismissed with prejudice.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The "Administrative Orders and Procedures Act", ("AOPA"), at IC 4-21.5 and the "Flood Control Act" at IC 14-28 apply to these proceedings.
2. The Department of Natural Resources, ("Department"), is the state agency responsible for the regulation and supervision of floodways in Indiana. IC 14-28-1-1.
3. Pursuant to IC 14-10-2-4, the Natural Resources Commission is the ultimate authority of the department under IC 4-21.5.
4. The Natural Resources Commission ("NRC" or "Commission") is the policy-making Board for the Department of Natural Resources, "DNR". The Commission makes final determinations with regard to policy or other selected DNR matters and has the authority, in most instances, to affirm, modify, or reverse decisions made by DNR Administrative Law Judges ("ALJ"). For purposes of the Administrative Orders and Procedures Act ("AOPA"), Ind. Code 4-21.5, the Commission is the ultimate authority for the DNR. See Ind. Code 4-21.5-3-9 and Ind. Code 14-34-2-2(b)(1).
5. A mudslide occurred into Wilson Creek at a Wal-Mart construction site on or about November 13, 1995.
6. An Emergency Action Construction in a Floodway Permit ("Emergency Permit"), was issued by DNR to Wal-Mart on December 29, 1995 "for work to abate this violation."
7. Wal-Mart, through its engineering firm, CESO, Inc., ("CESO"), submitted to DNR a permit application under application #FW-17,332 on January 10, 1996, to perform restoration and mitigation to the creek and to relocate the creek.
8. On August 22, 1996, DNR filed a Complaint for the Issuance of a Notice of Violation and the Imposition of Penalties against Wal-Mart Stores, Inc., "Wal-Mart", for the placement of fill in the floodway of Wilson Creek without a permit, because work under the Emergency Permit had not begun and because the site remained in violation.
9. Prior to denial or approval on the #FW-17,332 permit application, CESO wrote the DNR on June 10, 1996, requesting permission to remove up heaved material from the creek and return the creek to its original configuration. See Exhibit B-11 of the DNR Motion for Summary Judgment.
10. Following CESO's June 10, 1996 request, On September 9, 1996, John Hall of the Division of Water provided CESO a list of restoration work to be done at the site. Hall prepared an inspection report on September 19, 1996 noting that the request for restoration had been approved. See Exhibit B-12 of the DNR Motion for Summary Judgment. On September 13, 1996, CESO's request was approved orally by the Division of Water, allowing approximately 150 cubic yards of material to be removed from the floodway. Id. at pg. 3. This approval constituted a "license" under IC 14-11-3-1.
11. A DNR October 3, 1996 inspection report by John Hall indicated the site had been restored in accordance with the restoration plan. See Exhibit B-13 of Hall's Affidavit.
12. A prehearing conference was held on October 11, 1996, at which the parties agreed that the violation "had been properly abated and the only issue remaining involved the assessment or waiver of a fine." See Report of Prehearing Conference,
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October 23, 1996. Potential intervenors were given until November 12, 1996 to file petitions for intervention. Id.
13. A Status Report was filed in the record on November 20, 1996, reflecting the parties agreement that the issues remaining between the parties concerned whether fines and penalties were appropriate and the amount of such fines.
14. The record shows a status conference was held on February 26, 1997, wherein the parties agreed that "restoration at the site was complete, but disagreed in the matter of the imposition of a fine." See Report of Status Conference, March 13, 1997. The Heaths were given until March 10, 1997 to request intervention. Id.
15. On March 10, 1997, the Heaths filed a Petition for Intervention in this cause. The Heaths allege that flooding and crop losses have occurred on their property as a result of Wal-Mart's activity in Wilson Creek.
The Heaths claim:
"The Respondent has acted without due regard to the rights of adjacent property owners, including the Petitioners, and in violation of law in placing fill in the Wilson Creek which caused blockages.
The Respondent has further acted in violation of law by not stabilizing its banks and creating an unsafe condition by allowing silt to run into Wilson Creek.
The actions taken by Respondent [Wal-Mart] were made without notice, permits or due regard to the laws of the State of Indiana and the regulations of the DNR.
The actions taken by Respondent have directly and indirectly impacted the property rights of the Petitioners, [Heaths], which, but for said actions would have not been so affected.
The actions taken by the Respondent have directly caused water elevations in the area
of Wilson Creek to be significantly higher.
The actions of the Respondent were taken without due regard to the advice and standards of the U.S. Army Corps of Engineers, the Federal Emergency Management Agency and the DNR.
Any remedial actions taken or proposed by the Respondent have not corrected the blockage of Wilson Creek and the specific violations which are the subject of this proceeding."
16. The Heaths requested the NRC to "issue a violation as requested in the Complaint and include specific remedial actions to remedy conditions of Wilson Creek, and that Respondent [Wal-Mart] be subject to the penalties provided by law..." See Petition for Intervention.
17. On April 10, 1998, Wal-Mart filed a Motion for Summary Judgment which provides:
"The condition for which the Notice of Violation was issued has been abated to the satisfaction of the Claimant."
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"All of the concerns addressed in the Intervenors' Petition for Intervention over which the Commission has jurisdiction have resolved in accordance with the standards and procedures of the Commission."
18. On June 4, 1998, the DNR filed two motions: a Motion to Dismiss Complaint Against Respondent Wal-Mart, stating that all issues raised in the Complaint have been resolved by and between the Department and Wal-Mart; and a Motion for Summary Judgment, providing that:
1) Wal-Mart's violation of the Flood Control Act (the FCA) was cured by Wal-Mart's restoration of the site in accordance with a plan approved by the Department; and
2) The remainder of the work at the Wal-Mart site was outside the geographic area of the floodway.
19. The motion is supported by affidavit of John Hall, which states "as a result of earth material and trees have been removed from the channel, so as to restore a clear channel, there was no longer an adverse affect [sic] on the efficiency, or an undue restriction on the capacity[,] of the floodway at the site." See DNR Hall Affidavit. Hall further states that "as a result of the earth material and trees being removed from the channel, so as to restore a clear channel, there was no longer an unreasonable hazard to the safety of life or property."
20. Discussions were held with the parties and the ALJ to set a briefing schedule for Heaths' response to the Wal-Mart and DNR motions. The Heaths responded to those motions following an agreement of the parties to allow time for the Heaths' expert to provide an opinion. The Heaths filed their Intervenors' Memorandum in Opposition to Indiana Department of Natural Resources' Motion for Summary Judgment on December 9, 1998. The Heaths' motion argues that material issues of material fact exist in that the experts retained by the Heaths dispute the DNR assertion that Wal-Mart has removed the landslide from the Wilson Creek floodway. The Heaths expert provides the opinion, via affidavit, that fill material exists in the floodway of Wilson Creek.
21. In order to clarify issues for consideration, a Notice of Oral Argument was issued on February 12, 1999, scheduling that argument for March 12. 1999. Oral argument was held on March 21, 2000, following several requests for continuance of oral argument, motions for disclosure of date, motions to dismiss, motions to reconsider, notice of withdrawal of complaint and objection to claimant's notice of withdrawal of complaint.
22. IC 4-21.5-3-21 allows for intervention in proceedings before the Natural Resources Commission.
23. In their Petition for Review, the Heaths contend, inter alia, that remedial actions taken or proposed by the Respondent have not corrected the blockage of Wilson Creek and the specific violations which are the subject of this proceeding." See Finding #15 above. In their Motion in Opposition to the DNR and Wal-Mart Motions for Summary Judgment, the Heaths assert that fill material exists in the floodway of Wilson Creek "for a stretch of approximately 1,600 feet...]" See Exhibit D-1 of the Heaths' motion. Based on the Heaths' inspection of the creek, "evidence of an active slide continuing to occur" is alleged.
24. Summary judgment is appropriate only where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).
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25. The burden is on the moving party for summary judgment to show that there is no genuine issue of material fact. Id. As the moving party, the DNR has the burden of proving there is no genuine issue of material fact in this proceeding.
26. The evidence presented on summary judgment must be viewed in the light most favorable to the party against whom summary judgment is sought. Horizon Bancorp v. Indiana Dep't of State Revenue, 626 N.E.2d 603, 605 (Ind. Tax 1993). If there is no genuine issue of material fact, the task is to apply the law to the undisputed facts. Knauf Fiber Glass, GMBH v. State Bd. of Tax Com'rs, 629 N.E.2d 959, 961 (Ind. Tax 1994).
27. Case law supports that "an intervenor takes the case as he finds it at the time of intervention." City of New Haven v. Chemican Waste Management of Indiana, 685 N.E. 2d 97 (Ind. App. 1997), citing Cromer v. Sefton, 471 N.E. 2d 700 (Ind. App. 1984) and Heritage House of Salem, Inc. v. Bailey, 652 N.E. 2d 69 (Ind. App. 1995), trans denied. "One should not be granted permissive intervention if the effect of granting the motion would be to open up new areas of inquiry or raise unrelated issues." Id.
28. At the time of the Heaths' Petition for Intervention (March 10, 1997), and as found in the record at the ALJ's Report of Prehearing Conference (October 23, 1996), and Status Report: Motion for Continuance (November 20, 1996), the issues existing in this matter consisted of whether fines and penalties were appropriate and the amounts of such fines should assessment be supported. The parties agreed that violations cited in the DNR Complaint against Wal-Mart, had been properly abated at the time of prehearing. See ALJ Report of Prehearing October 23, 1996.
29. Pursuant to City of New Haven, supra, the Heaths take the case as they found it on March 10, 1997, the date they filed their Petition for Intervention.
30. Intervenors' Memorandum in Opposition to the Department and Wal-Mart's Motion [s] for Summary Judgment including the "Wilson Creek Channel Study" of Exhibit D-1 and the photographs depicting Wilson Creek of D-2, while these might serve to support testimony or other exhibits, they do not show the appropriateness of a penalty and amount of penalty in this cause.
31. The parties agreed prior to the Heaths' intervention that violations cited in the DNR Complaint against Wal-Mart, had been properly abated. Therefore, evidence regarding the existence or non-existence of the violation is not a matter for consideration through the Heaths' intervention because that issue was not outstanding at the time of intervention. See Report of Prehearing Conference (October 23, 1996), Status Report: Motion for Continuance (November 20, 1996), and Report of Status Conference (March 13, 1997.
32. The Heaths fail to show a genuine issue of material fact exists in this case.
33. The Department has sustained its burden that there is no material issue of fact and that the Department is entitled to summary judgment in its favor and against the Heaths.
DEARBORN CIRCUIT COURT (MAY 9, 2002)
ORDER DENYING PETITION TO SET ASIDE NATURAL RESOURCES COMMISSION DECISION
This matter came before the Court for hearing on April 9, 2002, the Petitioners appearing in person and by counsel, Peter Burrell; and the Respondent, Wal-Mart Stores, Inc., appearing by counsel, Larry Eaton; and Respondent, Department of Natural Resources, appearing by Amy McDonnell, Deputy Attorney General. And the Court, having heard arguments of counsel and having reviewed arguments and briefs submitted by the parties, now finds as follows:
1. That the evidence presented is insufficient to show that the administrative decision was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence or otherwise invalid under I.C.4-21.5-5-14(d).
2. The Court further finds that the Petitioners have sought to raise issues through their own expert witness. Unfortunately, under the law, these issues were raised too late to permit proper consideration by the Court.
The acceptance of the IDNR of the abatement by Wal-Mart at the pre-hearing conference on October 11, 1996, precluded the Heaths from complaining thereafter as to the issue of abatement. As cited by counsel for Respondent, Wal-Mart Stores, Inc., "An intervenor is bound by all stipulations and rulings prior to the time he is made a party and an intervenor takes the case as he finds it." Sexton v. Johnson Suburban Utilities, Inc., 422 N.E.2d 1293, citing 170 IAC 1-1-9(d) (1979 Ed.); L.S.Ayers & Co. v. Indianapolis Power & Light Co., (1976) 169 IND.APP. 652, 351 N.E.2d 814.
IT IS THEREFORE ORDERED, CONSIDERED, AND ADJUDGED by the Court that the finding of the Administrative Law Judge granting Motion for Summary Judgment of the Indiana Department of Natural Resources, for the reasons stated herein, should be and is upheld; and Petitioner's request to set aside the Natural Resources Commission's decision granting summary judgment is denied.
SO ORDERED this 9 day of May, 2002.