Content-Type: text/html Cause #: 00-152w.v9.html

CADDNAR


[CITE: Dowden v. DNR, 9 CADDNAR 25 (2001)]

[VOLUME 9, PAGE 25]

Cause #: 00-152W
Name: Dowden v. DNR
Administrative Law Judge: Lucas
Attorneys: Bryce; Roth
Date: August 31, 2001

FINAL ORDER

License application FW-20,048 is denied.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Sam Dowden ("Dowden") initiated this proceeding when he filed a "Verified Petition for Administrative Review" on August 22, 2000. The petition seeks administrative review and to reverse an initial determination by the Department of Natural Resources (the "DNR") denying an application for a license to alter a floodway by removing topsoil in an area containing 2,400 feet by 800 feet, positioned along 2,500 feet of the southwest overbank of Fall Creek in Green Township, Madison County. The application was designated FW-20,048 by the DNR and was sought pursuant to IC 14-28-1 (sometimes referred to as the "flood control act"). The denial was made by letter dated August 3, 2000.

2. The proceeding is governed by IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") and rules adopted by the Natural Resources Commission (the "Commission") to assist in its implementation of AOPA. The Commission is the "ultimate authority" for the proceeding as the phrase is defined in AOPA.

3. Dowden's request for administrative review was timely. The DNR administers the flood control act, subject to the ultimate authority of the Commission under AOPA. An administrative law judge was appointed by the Commission to conduct these proceedings and to render a nonfinal order, subject to a party filing objections under AOPA and again subject to the Commission's ultimate authority. The Commission has jurisdiction over the subject matter and over the parties.

4. An administrative law judge conducts a hearing de novo, weighing evidence and reaching conclusions, rather than deferring to the initial determination by the DNR. Abuse of discretion is a standard that may have application to judicial review but does not apply under AOPA to administrative review. Indiana Dept. of Natural Resources v. United Refuse, 615 N.E.2d 100 (1993 Ind.) and Hoosier Environmental Council v. RDI/Caesar's Riverboat Casino, 8 Caddnar 48 (1998).

5. The party seeking to set aside an initial licensing determination by the DNR generally has the burden of proof. The standard for the burden is by a preponderance of the evidence. IC 4-21.5-3-14 and Black Beauty Coal Company v. DNR and Roberts, 8 Caddnar 129 (1999).

6. Dowden has the burden of proof, by a preponderance of the evidence, to establish the DNR erred when it denied application FW-20,048.

7. The sole basis upon which the DNR made its initial determination to deny application FW-20,048 was that the activities sought to be authorized by the license were found to "result in unreasonably detrimental effects upon fish, wildlife, or botanical resources" in violation of IC 14-28-1-22(e)(3).

8. In analyzing the application for the DNR, District Wildlife Biologist, Pete Meyer, viewed the site on foot on February 3, 2000 and provided a written memorandum on February 8, 2000 that provided in pertinent part:

The subject area, approximately 44 acres...varied from riverside lowlands to slightly more elevated lowlands.... Ground cover varied from grasses and forbs to mature trees.

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Most of the land...would be in shade in the growing season. There were numerous sights of wildlife having used the land. A rabbit ran in front of us as we came across the eastern hedgerow. Beaver cuttings in the form of gnawed trees, stumps and food sticks were evident. Deer tracks were evident tranversing the area. The most numerous tracks were those of fox squirrels that were looking for food on the gound. Fox tracks were seen in the snow on the ice of the river along the northern border of the land. Bird life was plentiful and I heard hawks, crows and owls in the woods. Woodpecker holes adorned the big and little dead trees alike. Wood ducks would use the larger tree cavities in the spring for their egg laying. There were several nests of birds noted in the trees of the site. Trees on the area were numerous and in all different age groups. Many of the larger sycamore trees had hollow trunks or limbs and there was evidence they were used for den trees by raccoons and squirrels. Some trees appeared to be transplants that were recently planted evergreens which will add greatly to the diversity of the site.... Stipulated Exhibit II.

9. Kent Hanauer also analyzed the application. He is also a biologist and has more than four years of professional experience with the agency. Hanauer provided a written memorandum dated February 15, 2000 that provided in pertinent part as follows:

I checked the project location on National Wetlands Inventory maps. A large forested wetland is mapped surrounding the oxbow and between the oxbow and the channel of Fall Creek. A scrub shrub/forest wetland is mapped west of the oxbow near the west project boundary. I inspected the site on 2/3/00 with District 5 Wildlife Biologist Pete Meyer by walking a circuit through the property. . . . Most of the site is covered with mature woods except two small areas of grasses and forbs with some small trees and brush, one at the east edge of the property and one in the western half of the property. These old field areas are surrounded by areas in various stages of succession ranging from virtually no trees and shrubs to pole size trees to mature woods. The mature wooded areas have a good mix of trees including Sycamore, Hackberry, Box elder, Silver Maple, Elm, Ash, Walnut, Buckeye and Cottonwood. There are ducks and numeous small birds that winter in this part of the country. It is likely that some areas of the oxbow hold pools of water in the spring that are used by amphibians for breeding activities.... [T]his site would provide a significant amount of wildlife habitat and a valuable corridor for wildlife movement within the local landscape. The proposed activities would result in the loss of approximately 44 acres of valuable wildlife habitat and would degrade the adjacent stream by increasing the amount of sediment that is delivered to the stream from the adjacent floodway. This project will result in unreasonably detrimental effects upon fish, wildlife, and botanical resources.... Stipulated Exhibit II.

10. Kent Hanauer testified if the entire site were developed under the authorization sought in application FW-20,048, "all the way to the edge of the stream," it could have significant impact on fishes. Doing so would remove the trees adjacent to the stream corridor. That would eliminate the shading that is provided to the stream. Shading helps to reduce the overall temperatures on a stream and helps to reduce the amount of algae growth. Trees along the bank also help to reduce streambank erosion.

11. Hanauer also testified there is an oxbow on site, essentially a cut-off from the main channel of Fall Creek. At various times in the year, the oxbow holds water that provides important wildlife habitat for various species, particularly amphibians. Salamanders and frogs use

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oxbows for breeding and at other life stages. In addition, some reptiles use the habitat provided by oxbows, including species of turtles and snakes. He testified if the topsoil were stripped, the site would no longer have the "right biological and chemical factors that the amphibians would find necessary for breeding."

12. Dowden offered no testimony, expert or otherwise, to refute the testimony of the DNR's biologists.

13. Dowden testified he had no timetable for completion of the activities that would be authorized in the requested license. He stated, "Our intention is to go in and possibly take a strip 100 feet wide at the depth of the property, take that out, and then move over and do it again, leaving possibly 20 feet between them. So that would be a strip-possibly 100 feet wide and 300 or 400 feet deep." Top soil would be removed to a depth of three or four feet, stopping before reaching the "water table." On cross-examination, Dowden said he was uncertain whether his application limited the authorization to strips 100 feet wide. He added he did not presently expect to strip "acres and acres" in a single year but added that sometimes "things change."

14. As submitted, and apparently as anticipated by Dowden, license application FW-20,048 is devoid of conditions to mitigate the impacts on the wildlife and botanical resources present in Fall Creek and on adjacent lands within the floodway.

15. Dowden elicited testimony from Hanauer that would hypothesize as to whether a license would be approved by the DNR if: (1) the site were first degraded from its present condition by the removal of trees and other vegetation; or, (2) the application contained conditions to protect a 75-foot corridor along Fall Creek and to preserve the oxbow.

16. This testimony is without probative value. The application must properly be considered in the context of the conditions that exist when the application is reviewed, not the most degraded prospective conditions that can be imagined. Whether a license is approved, disapproved, or conditioned rests upon administrative review with the Commission and not the DNR. The DNR cannot act upon a license application that is never made. The Commission can only provide administrative review of a finite written application. Similarly, the opinion of a DNR employee as to whether a license would be approved by the DNR, conditioned other than as actually submitted by an applicant, is speculative. If some other application were submitted, whether the application could be approved is an agency decision that ultimately does not even rest with the DNR. The decision rests on administrative with the Commission following an opportunity for hearing de novo.

17. Hanauer testified that based upon his experiences, he believed the removal of the amount of topsoil anticipated by Dowden would effectively remove all topsoil. Dowden offered no testimony to refute this perspective but questioned why Hanauer had not taken core samples to establish the depth of topsoil at the site. The question illustrates the underlying legal difficulty with Dowden's position. The burden of persuasion rests with Dowden to demonstrate that the activities to be authorized by FW-20,048 would meet the requirements of the flood control act, not with the DNR to demonstrate the activities would not.

18. Dowden has not shown the activities anticipated under application FW-20,048 would have other than unreasonable detrimental effects upon fish, wildlife, or botanical resources. The evidence is essentially unrefuted that they would have such unreasonable detrimental effects. Dowden is not precluded from tendering another application that properly considers these resources, but the pending application must properly be denied.