Content-Type: text/html 98-177p.v8.html

CADDNAR


[CITE: Cutler v. Department of Natural Resources, 8 CADDNAR 126)]

[VOLUME 8, PAGE 126]

Cause #: 97-177P
Caption: Cutler v. Department of Natural Resources
Administrative Law Judge: Wilcox
Attorneys: Silverglade; Habeeb
Date: November 10, 1998

ORDER

[CLAIMANT TOOK JUDICIAL REVIEW OF THE CAUSE ON NOVEMBER 12, 1998 IN THE PORTER SUPERIOR COURT. JUDGE THOMAS W. WEBBER, SR., JUDGE OF PORTER SUPERIOR COURT, II AFFIRMED THE ADMINISTRATIVE LAW JUDGE'S DECISION ON NOVEMBER 13, 1998. PLAINTIFF FILED PLAINTIFF'S PETITION TO REVIEW TRIAL COURT'S DENIAL OF THE STAY OF EXECUTION OF THE JUDGMENT ON NOVEMBER 20, 1998 IN THE COURT OF APPEALS OF INDIANA. COURT OF APPEALS DENIES PETITION ON NOVEMBER 25, 1998.]

Notice of Proposed Dismissal filed by Administrative Law Judge on November 10, 1998. Nonfinal order states, "The Administrative Law Judge hereby determines that the department's motion to dismiss should be granted and enters a Proposed Dismissal against the Claimant, Susie Cutler, pursuant to 312 IAC 3-1-9(b), as IC 4-22 rulemaking actions are not reviewable under the Administrative Orders and Procedures Act of IC 4-21.5."

Notice of Proposed Dismissal

I. REPORT

1. The instant proceeding was initiated upon Susie Cutler's September 25, 1998 filing of a petition for hearing in regard to the Department of Natural Resources', "Department's" issuance of a rule to allow deer hunts in Indiana Dunes State Park.

2. A prehearing conference was held on November 2, 1998, in Michigan City. The preliminary matter of jurisdiction was discussed and a briefing schedule set for briefs addressing IC 4-21.5-3-7 prerequisites for administrative review, specifically addressing the issue of whether the director's adoption of an emergency rule qualifies as an "order" subject to IC 4-21.5 administrative review.

3. On November 6, 1998, both parties filed briefs addressing this issue.

4. On September 9, 1998, LSA Document #98-202(E) was filed with the Secretary of State, which document consisted of a promulgated emergency rule temporarily amending 312 IAC 9, to allow deer hunts in the Indiana Dunes State Park and nine other state parks. See 22 Ind. Reg. 141 (October 1, 1998) [FOOTNOTE 1]

5. Under the current rule, #98-214(E), white-tailed deer hunts are to occur at Dunes State Park on November 16 through November 17, 1998 and on November 30 through December 1, 1998. This rule was promulgated pursuant to IC 4-22-2-37.1, which promulgation "applies to a rulemaking action resulting in ...(2) An action taken by the director of the department of natural resources under...IC 14-22-6-13 [regarding controlled hunts in state parks]."

II. CONSIDERATION

1. The first matter to be resolved is whether Ms. Cutler is entitled to administrative review under the Administrative Orders and Procedures Act, "AOPA", at IC 4-21.5. IC 4-21.5-3-7 sets forth prerequisites in qualifying for administrative review.

2. To qualify for review of an order under

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section 4,5, or 6 of AOPA, IC 4-21.5-3-7 requires that one must petition for review in a writing that:

(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law.

...

(3) is filed with the ultimate authority for the agency issuing the order within fifteen (15) days after the person is given notice of the order or any longer period set by statute.

3. Orders subject to review under AOPA are defined at IC 4-21.5-1-9 as agency actions of particular applicability that determine the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons. Orders set forth under these sections include licenses such as hunting licenses, penalty assessments, personnel decisions and safety orders. The specific orders under these sections are reviewable under AOPA. No IC 4-21.5-1-9 license is presented for review in this proceeding.

4. Rulemaking is governed by IC 4-22 et seq. and applies to the "addition, amendment, or repeal of a rule in every rulemaking action." See IC 4-22-2-13. The question is whether the emergency rule at issue in this proceeding is reviewable under AOPA.

5. The Natural Resources Commission, "NRC", has previously considered this very question, whether rulemaking is subject to administrative review under AOPA. In Anglin v. DNR, 7 CADDNAR 128 (1996), the NRC found that not all agency actions are subject to review under IC 4-21.5. "[I]n particular, IC 4-22-2-3 incorporates the agency action definition found in IC 4-21.5-1-4 and then specifically exempts 'rulemaking actions' from being considered as "agency actions". As such, rulemaking actions are not to be construed as "agency actions" for the purposes of IC 4-21.5-1-9 supra. Therefore, rulemaking actions are not construed to be orders and not petitionable under IC 4-21.5-3-7.

6. Based on the aforementioned analysis, the department's emergency rules under LSA #98-202(E) and LSA #98-214(E), adopted under the provisions of IC 4-22 et seq., are not reviewable under the Administrative Orders and Procedures Act of IC 4-21.5.

7. The Administrative Law Judge now determines that the department's motion to dismiss should be granted, and a proposed dismissal should be entered against Claimant, pursuant to 312 IAC 3-1-9(b).

_________________________________________

ORDER FROM PORTER SUPERIOR

"Susie M. Cutler, "Cutler" appears by counsel Attorney Joab Silverglade. The Department of Natural Resources, "DNR" appears telephonically by Deputy Attorney General Stephanie Roth and Norman Aranda. This cause is before the Court on Cutler's motion for a temporary injunction restraining the DNR from proceeding with the Director of the DNR emergency ordered deer hunt at Indiana Dunes State Park. DNR moves to dismiss the proceedings for Cutler's failure to comply with IC 4-21.5-5-7. The DNR further moves to dismiss their cause asserting Cutler's lack of standing to bring this action. Lastly, the DNR argues compliance with IC 14-22-6-13.

ISSUES

1. Has Cutler complied with statutory requirements of IC 4-21.5-5-7 or T.R. 65 thereby giving

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the Court jurisdiction to consider the merits of the complaint?

2. Has Cutler a standing pursuant to IC 4-21.5-5-3?

3. Has the DNR complied with IC 14-22-6-13?

FINDINGS

The facts are generally agreed and will not be recited here. However, certain facts may be set out below as necessary.

DISCUSSION

The DNR asserts that the Court is without jurisdiction in this cause. The DNR argues that case law requires the petitioner to strictly conform to statutory requirements before the Court has jurisdiction to hear the underlying issues. Review of the pleadings filed in this matter reveal that Cutler's petition is unverified. IC. 4-21.5-5-7 states in part, "

(a) A petition for judicial review must be filed with the Court.

(b) A petition must be verified." The Supreme Court of Indiana, in reviewing a trial judges order after review of an agency action, will limit its review to determining whether the trial judge followed the law in applying the procedure outlined by the statute. See; IN RE T.P. (S.Ct. 1985) 475 NE 2d 312. Compliance with statutory requirements is what gives the Court jurisdiction. Consequently, the Court is required to dismiss the Cutler petition for the reason the Court lacks jurisdiction. However, overlooking Cutler's faulty pleadings and proceeding to determine whether Cutler has standing the Court would find that the Administrative Law Judge (ALJ) was correct in the determination that rulemaking is not subject to judicial review under the provisions of the Administrative Adjudication Act IC 4-22-1-1 et seq. Rulemaking, however is not exempt from judicial review but not under the Administrative Adjudication Act. Department of Revenue v. Colpaert Realty Corp. (S. Ct. 1952) 109 N.E.2d 415. Review by the Court, where the challenge is the agency inappropriately applied the law, is to determine whether the agencies rule and regulation are inconsistent with the statute it is administrating. The agency (DNR) may not by its rule and regulation add or detract from the law as enacted, nor may it by rules extend the powers conferred by statutory enactment. Department of Revenue v. Colpaert Realty Corp. Id. Cutler in count II of the complaint alleges the DNR Director exceeding statutory authority. However, were the Court to look beyond the material defects as set out above, there is still nothing within Cutler's unverified petition, affidavit or motion that would cause the Court to conclude the DNR acted beyond its statutory authority."