FINAL ORDER OF DISMISSAL WITH RESPECT TO CLAIM BY MICHAEL BROZ, ONLY
On May 5, 2005, Michael C. Broz ("Broz") filed correspondence with the Natural Resources Commission (the "Commission") that appeared, on its face, sufficient to suggest the Commission had subject matter jurisdiction. The correspondence was deemed a petition for administrative review under IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and captioned Michael C. Broz v. Robert Guenther, William Ford, and Department of Natural Resources, Administrative Cause No. 05-085W.
Although the Broz correspondence might have be susceptible to a motion for more definite statement or motion to dismiss for failure to state a claim, it appeared to meet the threshold test set forth in Indiana Office of Environmental Adjudication v. Kunz, 714 N.E.2d 1190 (Ind. App. 1999). "It is, of course, well settled that administrative pleadings are to be liberally construed and amended." An administrative complaint "need not 'enumerate precisely every event to which a hearing examiner may finally attach significance." Where subject-matter jurisdiction appears to exist but where the administrative pleadings are insufficient to demonstrate an actionable claim, the person seeking administrative review must be allowed to plead over. Id. As applicable to adjudications before the Commission, see Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001).
By agreement of the parties, Administrative Cause No. 05-085W was consolidated with Save Our Rivers, Save Our Land & Environment, Don Mottley, Kimberly Peerman, Kenneth S. Phillips, Sharon Phillips, Elbert Matthew, and Joyce Matthew v. Robert Guenther, William Ford, and Department of Natural Resources (Administrative Cause No. 05-03W). The agreement for consolidation was expressed by the parties and approved by the administrative law judge during concurrent prehearing conferences held in the two proceedings on June 17, 2005. "Report of Concurrent Prehearing Conferences and Notice of Telephone Status Conference" (June 20, 2005), page 1.
During the June 17 concurrent prehearing conferences, the parties also agreed and the administrative law judge then ordered a schedule for compliance by Broz and the other Claimants with discovery previously propounded on them by Robert Guenther and William Ford.
The parties reported that discovery has been sought in the form of interrogatories and requests for admissions. The parties agreed, and the administrative law judge then ordered, that the Claimants respond by July 1, 2005 to discovery sought by the attorneys for Robert Guenther and William Ford. Guenther and Ford shall respond to discovery sought by some of the Claimants by July 15, 2005. The form of these responses shall be as anticipated by Trial Rule 26 through Trial Rule 37.
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"Report of Concurrent Prehearing Conferences and Notice of Telephone Status Conference" (June 20, 2005), page 3.
Broz filed an email on June 30, 2005 that included the following paragraph:
I do not see any purpose for having Mr. Robert Guenther and Mr. William Ford on my cause. They do not control the permit process. They did not allow due process when they had the violation (Number V-4537-FW) or the After the Fact Permit per reference (c). They are in the way with my proceedings with the U.S. Army Corps of Engineers; I've assured them this is not a spat between civilians. I intended to produce privacy act documentation (to a U.S. Senator) that I do not want to show them. I believe it is illegal to force me to file a charge against persons I do not want to charge. I do not want them listed as respondents. I will not provide any Interrogatories to them, I will not provide evidence to them, since I believe they are changing the status of the levee in order to offset my "Due Process." I will send personal data from the Interrogatories to you and Mr. Charles White if you desire. I want this to be a closed door process. I do not want Mr. Guenther, Mr. Ford, their attorneys or agents present in my process. They may look at everything I provide to you after I'm complete and your decision is final.
The parties were provided until July 15, 2005 to file written responses to the requests for relief as described by Broz in this paragraph.
As invited by this entry, "Guenther's and Ford's Response to Michael Broz's Email of June 30, 2005 and Motion to Dismiss Mr. Broz and his Petition for Review with Prejudice" was filed on July 15, 2005. The response stated in part:
2. Mr. Broz's June 30, 2005, email disavows any intent on his part to prove in this proceeding that Mr. Guenther's and Mr. Ford's permit is defective or that he has been or will be harmed by their levee. To the contrary, in his email, Mr. Broz states: "I do not see any purpose for having Mr. Robert Guenther and Mr. William Ford on my cause...I believe it is illegal to force me to file a charge against persons I do not want to charge. I do not want them listed as respondents...I will not provide evidence to them..." In his email, Mr. Broz states instead that his principal gripe is with the U.S. Army Corps of Engineers ("[Mr. Guenther and Mr. Ford] are in the way with my proceedings with the U.S. Army Corps of Engineers..."). The ACOE, however, is not a party to this proceeding, and no action taken by the ACOE can be at issue here. Consequently, although it is not clear what relief Mr. Broz wants from the ACOE, it is clear that he cannot get it in this proceeding.
3. In short, Mr. Broz has declared that he is not "adversely affected or aggrieved" by Mr. Guenther's and Mr. Ford's permit or levee. Mr. Broz must be adversely affected or aggrieved in order to file a petition for review. See Ind. Code § 4-21.5-3-7(a). According to Huffman v. Indiana Office of Environmental Adjudication, 811 N.E. 2d 806 (Ind. 2004), in order to be "adversely affected or aggrieved," Mr. Broz must at least allege that he suffers or will suffer in the immediate future harm to a legal interest, be it pecuniary, property, or personal, from Mr. Ford's and Mr. Guenther's permit or levee as authorized by the permit. Here, because he has stated that he does not
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want to file charges against Mr. Guenther and Mr. Ford, and because the relief he seeks is not available in this proceeding, Mr. Broz is not adversely affected or aggrieved by Mr. Guenther's and Mr. Ford's permit or levee. Accordingly, as provided in 312 IAC 3-1-9(b)(3), Mr. Broz and his petition for review should be dismissed with prejudice.
4. Mr. Broz's June 30, 2005 email also states: "I want this to be a closed door process. I do not want Mr. Guenther, Mr. Ford, their attorneys or agents present in my process. They may look at everything I provide to you after I'm complete and your decision is final." Obviously, Mr. Guenther and Mr. Ford and their attorneys cannot be excluded from a proceeding whose purpose is to determine the validity of Mr. Guenther's and Mr. Ford's permit.
5. Even if he had stated a claim that Mr. Guenther's and Mr. Ford's IDNR permit is defective, and even if he did want to remain in this proceeding, Mr. Broz also has declared that he will not abide by the rules that govern this proceeding. By reason of his position that there must be a "closed door" hearing, which is something not available here, Mr. Broz, in effect, has announced that he refused to participate in the public, adjudicatory hearing of this permit appeal that is provided by statute. Accordingly, as provided in Ind. Code § 4-21.5-3-24(a)(2), 312 IAC 3-1-9(b)(1), and 312 IAC 3-1-9(b)(4), Mr. Broz and his petition for review should be dismissed with prejudice.
6. Mr. Guenther and Mr. Ford submitted interrogatories and requests for production of documents to Mr. Broz on May 24, 2005. At the conference on June 17, 2005, the ALJ explained the discovery process to Mr. Broz and ordered him to respond to Guenther's and Ford's discovery by July 1, 2005.
7. Mr. Broz did not respond to Mr. Guenther's and Mr. Ford's discovery by July 1, 2005, nor has he responded since then. Instead, in his email, Mr. Broz announced: "I will not provide any Interrogatories to them, I will not provide evidence to them...I do not want Mr. Guenther, Mr. Ford, their attorneys or agents present in my process..."
8. Even though he was fairly advised by the ALJ on June 17, 2005 that he must participate in discovery and that the same rules that apply to represented parties apply to those proceeding pro se, Mr. Broz has unequivocally refused to provide discovery or otherwise submit to the rules that govern this proceeding. As provided in 312 IAC 3-1-10 and Indiana Trial Rule 37, Mr. Broz and his petition for review also should be dismissed with prejudice as a sanction for his failure to provide discovery.
Also, as invited by the entry from the administrative law judge, the "Department's Response to Michael Broz's Request for Relief and Motion to Dismiss Mr. Broz and his Petition for Review with Prejudice" was filed on July 15, 2005. The response states in substantive part:
I. Department Objects to Mr. Broz' Request to Dismiss Respondent's Guenther and Ford and Objects to Mr. Broz' use of the proceeding of this action to pursue matters unrelated to this cause.
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1. The Department objects to the Dismissal of Ford or Guenther as parties in the above-captioned cause. The issue in th above-captioned cause of action involves a permit affecting certain property owned by Ford and Guenther. None of Mr. Broz' correspondences to the parties nor with the court contains allegations that Guenther's and Ford's permit is defective or that his property would be damaged by the levee authorized by said permit. By his own admission in his June 30, 2005 email, Mr. Broz does not have an issue in dispute before this Court with Mr. Guenther's and Mr. Ford's permit.
2. In the aforementioned e-mail of June 30, 2005, Mr. Broz states, "I do not see any purpose for having Mr. Guenther and Mr. William Ford on my cause." In addition, said claimant states, "I believe it is illegal to force me to file a charge against persons I do not want to charge. I do not want them listed as respondents." If Mr. Broz is intent upon pursuing this or other unrelated matters criminally, he should speak with a Federal District Attorney or with the appropriate county prosecutor to see if they would like to file criminal changes against the Army Corps of Engineers and/or the Department. Shor of this, the Claimant cannot obtain the relief that he seeks through this Court. Using said court for this purpose is an abuse of the legal process.
II. Motion to Dismiss Claimant Broz Party Status
1. In said claimant's e-mailed dated June 30, 2005, Mr. Broz states: "I will not provide any Interrogatories to them, I will not provide evidence to them. I do not want Mr. Guenther, Mr. Ford, or their attorneys or agents present in my process." Pursuant to 4-21.5-3-24(a), an Administrative Law Judge may dismiss or default a party at any stage of a proceeding if a party fails to (1) file a responsive pleading required by statute or rule; (2) attend or participate in a pre-hearing conference, hearing, or other stage of the proceeding.
2. The proper parties in the above cause of action have followed the Court's orders and the [sic., those] of civil procedure set forth in statute and administrative rules. Not only failing to answer Ford and Guenther's discovery request but also stating to the parties and to the Court that the failure was intentional and deliberate defines the Court and Indiana law. Said intentional defiance by said Claimant threatens the legitimate use of the review and appeal process by all the parties.
Wherefore, counsel for the Department prays that the Court will (1) deny the claimant Mr. Broz' request to remove Mr. Ford and Mr. Guenther from this cause of action and will (2) dismiss Mr. Broz' claimant party status and for all other just and proper relief in the premises.
For the reasons stated in the cited portions of "Guenther's and Ford's Response to Michael Broz's Email of June 30, 2005 and Motion to Dismiss Mr. Broz and his Petition for Review with Prejudice" and the "Department's Response to Michael Broz's Request for Relief and Motion to Dismiss Mr. Broz and his Petition for Review with Prejudice", a final order of dismissal must properly be entered against the claim of Michael C. Broz.
In accord with these citations, the administrative law judge observes that 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),
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citing Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201, 216 (Ind. Ct. App. 1988). On administrative review, the Commission has only the powers specifically granted to it by the Indiana General Assembly. Pratt v. Indianapolis Water Co. & DNR, 9 Caddnar 17, 18 (2001). Broz has offered no authority for the proposition that the Commission or its administrative law judge may participate in his efforts to conduct a private, secretive investigation of the Department of Natural Resources or the U.S. Army Corps of Engineers. No such authority is believed to exist.
On the other hand, AOPA does provide a mechanism for an affected person to seek administrative review of a licensure decision. As applicable to the instant proceeding under IC 14-28-1 (sometimes referred to as the "Flood Control Act"), the authority is founded primarily at IC 4-21.5-3-5. The license applicant or applicants (here Robert Guenther and William Ford) are necessary parties in interest to an adjudication of the license. They cannot properly be removed from a review of the Department's licensure decision. Indeed, to remove them would likely constitute reversible error.
Also, the Respondents correctly observe that Michael C. Broz has deliberately refused to comply with an order by the administrative law Judge to provide responses to discovery. This refusal would be enough in itself for dismissal, but there is more. During the concurrent prehearing conferences held on June 17, 2005, Broz agreed to comply. Broz's subsequent refusal violates his own promise. He demonstrates an unwillingness to be secured by any bonds of conduct, even those forged by himself.
The administrative law judge being duly advised, a final order of dismissal with prejudice is entered against Michael C. Broz, only. The dismissal has no application to the claims of Save Our Rivers, Save Our Lands & Environment, Don Mottley, Kimberly Peerman, Kenneth S. Phillips, Sharon Phillips, Elbert Matthew, and Joyce A. Matthew. A person who wishes to seek judicial review of this final order must file a petition for judicial review in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.