ORDER
[NOTE: THIS CASE WAS SUBSEQUENTLY DISMISSED ON THE MOTION OF DYER BAPTIST CHURCH.]
A Final Order of Summary Judgment is entered in favor of the Town of Dyer and the Department of Natural Resources and against Dyer Baptist Church on all issues in this proceeding.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Administrative Review by the Natural Resources Commission
1. On February 23, 1998, the administrative law judge entered an "Order with Respect to Motion to Dismiss and Interlocutory Order of Partial Summary Judgment." In the order, several items were found adversely to Dyer Baptist Church and made an interlocutory order. Those matters are now affirmed and presented to the Natural Resources Commission (the "Commission") for final agency action under IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA").
2. In the February 23, 1998 Order, the Administrative Law Judge declined to grant summary judgment on several other items, finding there might be general material issues of fact as to them. The original order had been directed primarily to jurisdictional and procedural matters, so the parties requested a second summary judgment schedule to address substantive matters. During a prehearing conference held on April 17, 1998, the parties agreed to a schedule under which any summary judgment motion would be filed by August 3, 1998 and any response filed by September 3, 1998. On July 31, 1998, "Respondent Town of Dyer's Motion for Summary Judgment" was filed, and the "Department's Motion for Summary Judgment" was filed on August 3, 1998. Dyer Baptist Church has filed neither a motion for summary judgment nor a response. The items contained in the second round of summary judgment motions are now also incorporated into this order for final action by the Commission.
3. A state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the agency's legislative grant of authority may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 615 N.E.2d 816, 819 (Ind. Tax Ct. 1995), citing Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201, 216 (Ind. Ct. App. 1988); Michigan City Historical Society v. DNR and Francik, 5 Caddnar 169 (1990).
4. The Department of Natural Resources (the "Department") made an initial determination to grant Permit FW-18,187 (the "subject permit") to the Town of Dyer (the "Town"). The exclusive authority for making the initial determination is founded upon the Flood Control Act as set forth in IC 14-28-1 and 310 IAC 6-1.
5. The Dyer Baptist Church took administrative review of the initial determination to the Commission. The Commission is the "ultimate authority" pursuant to IC 4-21.5 for initial determinations by the Department made under the Flood Control Act. IC 14-10-2-3. Stout v. Department of Natural Resources, 7 Caddnar 106 (1995). The ultimate authority of the Commission for the Flood Control Act does not, however, create independent authority to provide administrative review of other statutes. Edwardsville Water Corporation and Citizens Against the Pit v. Department of Natural Resources and Silver Creek Sand & Gravel Co., Inc., Administrative Cause No. 96-138W (1997).
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B. General Prescriptions of the Flood Control Act
6. Statutory requirements for the subject permit are set forth in the Flood Control Act at IC
14-28-1-22. This section directs the Department to issue a permit sought under the Flood
Control Act if the activity will not do any of the following:
(1) Adversely affect the efficiency of or unduly restrict the capacity of the
floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.
(3) Result in unreasonable detrimental effects upon fish, wildlife, or botanical
resources.
7. An "unreasonable hazard to the safety of life or property" means a situation which is "likely to be caused by the design or construction of a project and which is likely to result during a regulatory flood in either. . . the loss of human life. . . or damage to public or private property." 310 IAC 6-1-3(25). In addition, IC 14-28-1-22(f) provides that the Department shall consider the "cumulative effects" of the activity sought within a permit and make "a part of" any permit "conditions and restrictions" needed to implement the Flood Control Act. Unless a term of the subject permit violates one of these restrictions, the Commission must affirm the initial determination to grant the permit.
C. Hazard to Life or Property Allegedly Resulting from Relocation of the Floodway
8. Dyer Baptist Church urged the subject permit would relocate the "floodway substantially closer to the Dyer Baptist Church structure. The waterway will be placed in closer proximity to our building(s) which is of concern in the event of a regulatory flood." In the February 23, 1998 Order, the Administrative Law Judge found a genuine issue of fact might be presented by this averment which would invoke the prescriptions of the Flood Control Act.
9. In supportive documentation to the Town's July 31, 1998 motion for summary judgment, the Town reflected that it had tendered the following request for admission to the Dyer Baptist Church on June 3, 1998: "Claimant admits that the floodway will not, in fact, be relocated closer in proximity to any of the Claimant's buildings." More than 30 days having expired since the service of this request for admission, the substance of the request is deemed admitted by operation of law. Pathman Construction Company v. Drum-CO Engineering Corporation, 402 N.E.2d 1, Ind. App., (1980). The Town requests and should be granted summary judgment on this issue under IC 4-21.5-3-23 in its favor and against Dyer Baptist Church.
10. In supportive documentation to the Department's August 3, 1998 motion for summary judgment, the Department shows the Site Plan for the subject permit demonstrates the floodway is at the same location under both existing
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and proposed conditions in cross-sections 9, 8, and 7g. From cross-sections 7g to cross-section 1, the floodway under the proposed conditions moves farther from the Church building. The Department requests and should be granted summary judgment on this issue under IC 4-21.5-3-23 in its favor and against Dyer Baptist Church.
D. Hazard to Life or Property Allegedly Resulting from Increased Traffic Safety Hazards
11. Dyer Baptist Church urges allowing completion of "the project"--and by "the project" Dyer Baptist Church refers to the extension of Calumet Avenue and not exclusively the specifics within the subject permit,--there will be a greater risk of injury or death to the congregation's "children, adults and senior citizens."
12. The Commission does not have jurisdiction over decisions whether to upgrade highways and streets. Generally, this legal authority rests with the Indiana Department of Transportation or local governmental entities through planning and zoning. For example, IC 36-7-4-201 provides that a county, municipality, or township exercising planning and zoning powers in Indiana must, for the "health, safety, convenience, and welfare of their citizens and to plan for the future development of their communities," assure that "highway systems be carefully planned."
13. The Town and the Department are entitled to summary judgment in their favor and against Dyer Baptist Church as to whether an increased hazard to life or property will result from increased vehicular traffic on the extension of Calumet Avenue. The Commission is without jurisdiction to grant the relief sought.
E. Alleged Unreasonable Detrimental Effects Upon Fish, Wildlife, or Botanical Resources
14. Dyer Baptist Church averred that the floodway within the area to be impacted by the subject permit has existed in its present condition "for over 60 years. The foliage and cover within the floodway has matured during this time to a point where it can not be restored as prescribed" in 310 IAC 6-1-3. In addition, the "relocation of the floodway and the new bank design (rocks where foliage currently exists) and widening" will result in "irrefutable and permanent detrimental effects' to the resources' within and adjacent to the floodway." In the February 23, 1998 Order, the Administrative Law Judge found a genuine issue of fact might be presented by this averment which would invoke the prescriptions of the Flood Control Act.
15. In supportive documentation to the Town's July 31, 1998 motion for summary judgment, the Town reflected that it had tendered the following request for admission to the Dyer Baptist Church on June 3, 1998: "Claimant admits that neither the loss of foliage accumulated over the floodway over the past sixty years, the conversion of the banks from foliage to rocks, nor the widening of the stream bed or floodway will result in unreasonable detrimental effects to fish, wildlife or botanical resources." More than 30 days having expired since the service of this request for admission, the substance of the request is deemed admitted by operation of law. The Town requests and should be granted summary judgment on this issue under IC 4-21.5-3-23 in its favor and against Dyer Baptist Church.
16. In supportive documentation to the Department's August 3, 1998 motion for summary judgment, the Department attaches the affidavit of Keith Poole, a naturalist, watershed biologist, wetland biologist, and environmental biologist with more than ten
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years of field experience. The unrefuted affidavit states in part (with paragraphs deemed
nonessential omitted and letters substituted for Arabic numerals to support continuity of the
instant order):
A. In my capacity as Environmental Biologist, I performed the environmental
review for the DNR Division of Fish and Wildlife for. . . [the subject permit] to
determine whether the project would result in unreasonably detrimental effects
upon fish, wildlife or botanical resources. In that review, I also considered the
cumulative effects of the proposed project on the resources.
B. In performing the above-described review, I inspected the site, participated in a
field meeting with representatives of the Town of Dyer and its consultant, and
worked out with them a mitigation plan for the project. . . .
C. After completion of my environmental review. . . , I prepared a memorandum,
dated May 9, 1997, to the file for [the subject] permit application. . . .
D. My comments were incorporated into the "Environmental Assessment and
Recommendation" prepared by the Environmental Coordinator. . . .
E. The provisions of the "Environmental Assessment and Recommendation" were
incorporated in [the subject permit]. . . .
F. As stated in the "Environmental Assessment and Recommendation", fish,
wildlife and botanical resource losses can b expected to occur as a result of this
project. However, the losses can be minimized if the conditions set forth in the
document are met. The "Environmental Assessment and Recommendation" also
provides that cumulative effects of this project will result in negative impacts on
fish, wildlife, and botanical resources, but those impacts will be minimized if the
described conditions are met.
G. The [subject] permit requires re-vegetation of the site in Special Condition (1),
as well as in the mitigation measures in Special Condition (5). Mitigation
measure #4. . . provides that woody revegetation, as proposed along the stream
bank, shall be native species including Pin Oak, Green Ash, Sycamore and
Swamp White Oak. Mitigation measure #5 . . . was amended in Permit Special
Condition (5) to require survival monitoring of the plantings in years three and
five after completion of the project. . . .
H. In my professional opinion, recovery of the affected resources is likely to occur
within an acceptable period of time if permit conditions are met and the project is
constructed as permitted.
I. In my professional opinion, the damage to fish, wildlife or botanical resources
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will be adequately and reasonably mitigated through the mitigation measures
approved in . . . [the subject permit].
J. In light of all the foregoing considerations, I concluded that the proposed
project would not result in unreasonably detrimental effects upon fish, wildlife or
botanical resources.
17. The Department requests and should be granted summary judgment in its favor and against Dyer Baptist Church as to whether the subject permit is likely to result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. The unrefuted evidence as elicited from a qualified professional is that it will not.
F. Relationship of Disposition of Prior Permit
18. The parties have referenced a prior permit issued to the Town at the same or a nearby site and never acted upon. Some argument has been provided as to the reasons why the permit was never acted upon. The argument is simply irrelevant to the merit, or lack of merit, of the subject permit. With the passage of time, no justiciable controversy is presented by a discussion of the prior permit. The prior permit is now both academic and moot. In its judicial capacity, the Commission will only consider a "justiciable" controversy, as distinguished from a hypothetical that is academic or moot. Black's Law Dictionary (West Publishing Co., 1990) citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239. The subject permit must stand or fall upon its own terms as measured by the Flood Control Act. There is no claim or controversy presented by consideration of the prior permit upon which the Dyer Baptist Church may obtain relief relative to the subject permit.
G. Allegation the Project Impedes Religious Freedom
19. Dyer Baptist Church urges the project violates its constitutional right to a "free unimpeded religious exercise. . . . We feel this primary rights transcends the secondary jurisdiction of these proceedings and must therefore be considered." [Emphasis supplied by Dyer Baptist Church.]
20. Questions of interpretation of constitutional law rest exclusively with the judicial
branch of government. In exercise of its authority for administrative review, the Commission
may be said to be exercising a quasi-judicial function, but it acts as part of the administrative
branch. The Commission is without jurisdiction to consider or determine whether granting of the
permit would violate the First Amendment guarantees accorded to religious practices. These
concerns "cannot be addressed in this administrative forum and must await judicial review."
Yater v. Department of Natural Resources, 6 Caddnar 161, 162 (1994). In accord are Indiana
Wholesale Wine & Liquor Company, Inc. v. State ex rel. Indiana Alcoholic Beverage Com'n, 662
N.E.2d 950, 959 (Ind. Ct. App. 1996), Sunshine Promotions, Inc. v. Ridlen, 483 N.E.2d 761
(Ind. Ct. App. 1985). This issue does not present a basis for hearing at the administrative level.