CADDNAR

[CITE: Stanton v. Starlight Leasing, Inc. and DNR, 10 CADDNAR 244 (2006)]

 

[VOLUME 10, PAGE 244]

 

Cause #: 05-128W

Caption: Stanton v. Starlight Leasing, Inc. and DNR

Administrative Law Judge: Jensen

Attorneys: Hemphill; Coffey; White

Date: May 30, 2006

 

FINAL ORDER

 

67.  The Respondents’ Motion for Directed Verdict, or for Judgment upon the Evidence, is granted.

 

68.  The Permits issued by the Department to Starlight are affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW  

 

 

BACKGROUND

 

  1. The instant proceeding was initiated by the filing of correspondence with the Natural Resources Commission (Commission) on July 5, 2005 by counsel, Cecilia Hemphill, on behalf of the Claimants, Dennis Stanton and Judith Stanton (collectively “the Stantons”).

 

  1. The Stantons requested administrative review of the issuance of two related Certificates of Approval for Construction in a Floodway, identified as FW-22,900 and FW-22,953 (Permits),  by the Department of Natural Resources’ (Department) to Star Lite Leasing, Inc. a/k/a Starlight Leasing, Inc. (Starlight) (collectively “the Respondents”).

 

  1. The Permits were issued by the Department to Starlight on June 16, 2006.

 

  1. The Stantons’ request for administrative review alleges that the Permits are related to a gravel pit planned for operation in the floodway of the West Fork of the White River and Crooked Creek, located in Morgan County, Indiana.  The Stantons allege that the “gravel pit will adversely affect the efficiency of and unduly restrict the capacity of the floodway” and that the resulting flood waters will cause an unreasonably hazard to the safety of neighboring properties and area residents, the flooding of homes and will impose an unreasonable detrimental effect upon fish, wildlife and botanical resources.  Stantons’ correspondence filed July 5, 2005.

 

  1. Throughout this administrative cause, Starlight has been represented by counsel, Dale S. Coffey and counsel, Charles P. White, has represented the Department.

 

  1. The Permits at issue in this proceeding were issued pursuant to IC 14-28, commonly referred to as the Flood Control Act (FCA), and administrative rules found at 312 IAC 10-1 et seq. adopted to assist in implementing the provisions of the FCA.

 

[VOL. 10, PAGE 245]

 

  1. The Department is the agency empowered to administer the provisions of the FCA.  IC 14-11-1-1.

 

  1. Administratively, this proceeding is controlled by the Administrative Orders and Procedures Act (AOPA).  IC 4-21.5-3.  Also applicable is 312 IAC 3-1, administrative rules adopted for the purpose of implementing AOPA in proceedings before the Commission.

 

  1. The Commission has jurisdiction over the persons of the parties and the subject matter at issue in this proceeding. 

 

  1. The Commission is the “ultimate authority,” as defined at IC 4-21.5-1-15, with respect to proceedings initiated for the administrative review of matters pertaining to the FCA.  312 IAC 3-1-2.

 

  1. Following two continuances granted on the motion of the Stantons, a prehearing conference was held on August 25, 2006.

 

  1. Following the parties completion of discovery, an administrative hearing was commenced as scheduled on April 17, 2006.

 

  1. One exhibit[1], a copy of the Department’s Division of Water file pertaining to the Permits was admitted by stipulation of the parties at the beginning of the administrative hearing.
  2. The Stantons presented two (2) witnesses in support of their petition for administrative review.

 

  1. Following the close of the Stantons’ case in chief, both Starlight and the Department made motions for directed verdict or motions for judgment on the evidence, which were taken under advisement.

 

  1. The Respondents were offered the alternative of either adjourning the hearing until a decision was rendered on their motions (in which case a denial of the motions would result in a bifurcated hearing) or continuing with the presentation of their cases with the caveat that a determination on their motions would be rendered in advance of any consideration of the Respondents’ evidence.

 

  1. The Respondents chose the former alternative and this determination is issued to address the Respondent’s respective motions.

 

[VOL. 10, PAGE 246]

 

FINDINGS OF FACT

 

  1. Mr. Stanton is the owner of farm land located in Morgan County directly across the West Fork of the White River from the Permit Site. 

 

  1. Mr. Stanton testified that if flooding increases on his land, the value of the land for agricultural pursuits will decrease.

 

  1. Mr. Stanton testified that his sole purpose for objecting to the Permits is his concern about the flooding of his property as a result of Starlight’s proposed activities.

 

  1. Margarite Hodges has owned a farm located adjacent to the permit site since 1952.  The Hodges farm is located on the same side of the West Fork of the White River and along Crooked Creek.

 

  1. Ms. Hodges indicated her concern that Starlight’s activities will cause a decrease in her property value “especially if they provide a mound, which I call a levee, that is going to back water up onto me…”[2]  Ms. Hodges stated that she just does not want Starlight to back water up onto her land.  Testimony of Hodges.

 

  1. Both Mr. Stanton and Ms. Hodges testified that their farm land is situated in the floodway of the White River and is not suitable for development.  Both, however, testified that the land was very well suited for agricultural use.

 

  1. Mr. Stanton possesses a bachelor of science degree from Purdue University with study in agriculture, business and management.

 

  1. In addition to Mr. Stanton’s agricultural pursuits, he is employed as a machine repairman at the Rolls Royce Corporation where he has had classes in hydraulics.

 

  1. Mr. Stanton acknowledged that he is not an engineer and did not assert himself as an expert in hydraulics.  However, Mr. Stanton testified that hydraulics is important to his present employment. 

 

  1. There was no evidence presented as to the degree, if any, to which Mr. Stanton’s knowledge, education or training on the subject of hydraulics relates to floodway management.

 

[VOL. 10, PAGE 247]

 

  1. Despite the fact that Mr. Stanton was not qualified as an expert regarding hydraulics relating to floodway management, he was allowed, over the objection of Starlight, to testify as to his general observations and personal experiences relating to flooding near the Permit Site. 

 

  1. Mr. Stanton purchased his farm land in 1985 and has farmed the area since that time.

 

  1. Mr. Stanton experienced a total crop loss one time in 2002 and spring flooding necessitated the replanting of thirteen (13) acres in 2005.  He did not believe he experienced any flood related crop loss in 2004. 

 

  1. Ms. Hodges experienced a sixty percent (60%) crop loss in 2002 and characterized 2002 as a “bad year.”  Her land that is sometimes prone to flooding is also utilized for cattle grazing purposes.

 

  1. Mr. Stanton estimated that on average he is required to replant some acreage approximately every other year.

 

  1. Mr. Stanton further testified that the flooding of his crops is not solely caused by floodwaters associated with the White River.  Mr. Stanton stated that his farm land includes a “low area” that floods due to runoff from a bluff.  Flooding in this area periodically causes the need to replant five (5) to twenty (20) acres.

 

  1. Mr. Stanton testified that five gravel pits have come into existence since the late 1990s, when Morgan County zoning ordinances that previously prohibited or restricted the operation of gravel pits were repealed. 

 

  1. Hoosier Sand and Gravel has been in operation for the past five (5) to seven (7) years and is located near the intersection of State Road 144 and Smokey Row Road very near the White River.  This gravel operation is within six (6) to seven (7) miles of the Permit Site by road and within five (5) miles by White River.  Testimony of Stanton.

 

  1. Cox Gravel is located directly west of Hoosier Sand and Gravel and its distance from the Permit Site is essentially the same as Hoosier Sand and Gravel. Cox Gravel had been out of operation for several years but activity appears to be resuming at the site.  Id.

 

  1. White River Gravel, located on the White River just north of Waverly on Smokey Row Road, has been in operation for five (5) to seven (7) years.  White River Gravel is approximately seven (7) to eight (8) miles by roadway away from the Permit Site.  Id.

 

  1. Patriot is “a fairly new business” located on Centenary Road south of State Road 144 on the White River.  Mr. Stanton indicated uncertainty with respect to Patriot’s history testifying that J.W. Jones bought the property for the operation of a gravel pit and may have sold or leased the land to Patriot, who is operating it today.  According to Mr. Stanton’s testimony, J.W. Jones did not do any digging at the site and Patriot has been working the site for the past three (3) years.  Patriot is approximately two (2) to three (3) miles from the Permit Site, “as crows fly.”

 

[VOL. 10, PAGE 248]

 

  1. The Reith Reilly Pit, which consists of “four hundred (400) plus acres,” has been in operation for five (5) years.  Mr. Stanton testified that the entire acreage has not been involved in mining activity to date and he is uncertain as to the amount of acreage that has been actively mined.  This pit is located on Grey Road just off Henderson Ford Road in the White River floodway.  The Reith Reilly pit is located approximately one (1) mile from the Permit Site, “as crows fly.”

 

  1. With the exception of the Reith Reilly gravel pit, all of the gravel pits identified are located upriver of the Permit Site and Mr. Stanton’s farm land.

 

  1. Mr. Stanton testified that the sole purpose of his objection to the Permits is the flooding that he believes will increase as a result of the activity authorized. 

 

  1. According to Mr. Stanton he has observed changes in the West Fork of the White River since the gravel pits began operation in the area in the late 1990s. 

 

  1. The only particular change Mr. Stanton testified to is the disappearance, over the past five (5) to seven (7) years, of a small island that was previously located in the channel of the West Fork of the White River between his farm land and the permit site.

 

  1. The source of Mr. Stanton’s primary concern is related to the planned placement of two berms that he recalled were to be constructed one hundred fifty (150) feet landward of the bank of the West Fork of the White River.  Testimony of Stanton.

 

  1. Mr. Stanton testified to his belief that the Permits at issue here, in conjunction with the existing gravel pits, will cause a reduction of the floodway at the permit site.  From this, he presumes that absent an ability to counter the effects of the berms or “mounds” authorized by the Permits, his farm land will experience increased flooding.

 

  1. Mr. Stanton testified that flooding has increased since the other five gravel pits began operation. 

 

  1. There was no testimony from either witness by which the number of flood events or the severity of flooding that occurred in the area before the existence of the five (5) gravel pits may be compared with the number of flood events or the severity of flooding that has occurred since the presently existing gravel pits came into existence in the late 1990s.

 

  1. Mr. Stanton indicated that he had reviewed the plans associated with the Permits a long time ago, but acknowledged having not looked at them recently.   

 

[VOL. 10, PAGE 249]

 

  1. Ms. Hodges testified that she was told about Starlight’s planned construction of levees up towards the highway but was unaware of any berms “down in the bottoms” by the West Fork of the White River.  Ms. Hodges acknowledged having never actually seen anything in Starlight’s plans that were submitted to the Department relating to the construction of berms or levees.

 

  1. Mr. Stanton acknowledged having never reviewed the actual design or construction plans associated specifically with the berms.

 

  1. Mr. Stanton indicated his belief that historically there were some small “hills” located at the Permit Site.  Mr. Stanton was uncertain as to the length, height or exact location of the “hills” and indicated his lack of knowledge whether the “hills” were natural or man-made.

 

  1. Ms. Hodges confirmed that the previous owner of the permit site built the “small little” berms referred to by Mr. Stanton as “hills.”

 

  1. Mr. Stanton concluded his direct testimony by stating: “It would be hard to say what kind of flooding it would be but I do know from my own personal witness that the flooding has increased… increased problems… .  I do know the simple effect of hydraulics that if the water can’t go over across the floodplain evenly it’s going to additionally flood the opposite side … additionally flood the opposite side from where it cannot go.  Cause it’s going to take the path of least resistance.  And that, in effect, is what will happen, I mean I’m not saying I’m an expert in that, but I’ve been schooled in hydraulics and that’s what can happen and that’s what I’m concerned about…”

 

 

CONCLUSIONS OF LAW

 

  1. Following the conclusion of the Stantons’ case in chief, the Respondents each made motions for directed verdict, or judgment on the evidence.  The Respondents, in support of their motions, argued that the Stantons had failed to provide any evidence of any threat to the health and safety of persons, or of any threat of damage to property or unreasonable detrimental effects upon fish, wildlife and botanical resources.  Furthermore, the Respondents argued that evidence presented by the Stantons regarding flooding is based solely upon the belief of Mr. Stanton that flooding has increased in the past few years as a result of the gravel pits and mere speculation of the Stantons’ witnesses, without benefit of studies, reports, calculations or documentation, that Starlight’s activities under the Permits will cause increased flooding.

 

  1. In response to the Respondents’ motions, the Stantons conceded that they had not presented evidence relating to a threat to the safety of persons or damage to homes from flooding or with respect to unreasonable detrimental effects upon fish, wildlife or botanical resources.  However, the Stantons contend that they have met their burden of going forward with evidence regarding their claim that the Permits and Starlight’s activities under the Permits will unduly restrict the capacity and adversely affect the efficiency of the floodway sufficiently to overcome the Respondents’ motions.

 

[VOL. 10, PAGE 250]

 

  1. Under the FCA, a permit may not be issued for a project in a floodway if the project will (1) “adversely affect the efficiency of or unduly restrict the capacity of the floodway;” (2) “result in unreasonable detrimental effects upon fish, wildlife of botanical resources;” or (3) “constitute an unreasonable hazard to the safety of life or property.”  IC 14-28-1-20.

 

  1. Following the Stantons’ concession that no evidence was presented regarding the latter two issues, the Respondents’ motions for directed verdict relating to those issues must be granted. 

 

  1. Remaining is the sole consideration whether the Stantons fulfilled their burden of going forward with evidence that Starlight’s activities authorized by the Permits will adversely affect the efficiency or unduly restrict the capacity of the floodway of the West Fork of the White River and/or the floodway of Crooked Creek.

 

  1. In order to overcome the Respondents’ motions for directed verdict it is necessary to find that the Stantons’ have supported their allegations with sufficient evidence.  Otherwise it is appropriate to enter judgment thereon.  Indiana Rules of Trial Procedure, Rule 50(A).  

 

  1. The Stantons’ evidence is insufficient to support their allegations that undue restrictions in the capacity of the floodway or adverse effects upon the floodway’s efficiency will result from the activity authorized by the Permits or from the cumulative effects of the five (5) existing gravel pits combined with the activity authorized by the Permits.

 

  1. The Stantons provided no evidence of calculations or modeling in support of their allegations and Mr. Stanton’s testimony revealed a lack of knowledge as to the size, location, or proposed design and construction of the levees by which reasonable calculations regarding the impact of those levees upon the floodway might even be estimated.

 

  1. While Mr. Stanton testified that flooding has increased since the five (5) existing gravel pits began operation in the late 1990s that testimony alone is insufficient to causally link the increased flooding to those existing gravel pits when Mr. Stanton, himself, acknowledged that any number of factors may be associated with the flooding he has experienced.  Testimony of Stanton. 

 

  1. In fact, Mr. Stanton testified that the flooding he has experienced in a low lying area on his farm is wholly unrelated to waters carried by the West Fork of the White River.  Testimony of Stanton.

 

[VOL. 10, PAGE 251]

 

  1. The Stantons sought to have the Permits reviewed in relationship to the cumulative effects of the five existing gravel pits, but have failed to present any independent evidence in support of a conclusion that additional flooding has been caused by the existing gravel pits or will be caused by the activity authorized by the instant Permits, either alone, or in combination with the existing gravel pits.  

 

  1. Mr. Stanton, himself, acknowledges that he does not know what the flooding will be that results from the activities authorized by the Permits.  Testimony of Stanton. 

 

  1. The burden of going forward with evidence sufficient to establish at minimum, a prima facie case, was upon the Stantons and they have failed to meet that burden.

[1] While this exhibit was admitted by stipulation at the outset of the hearing, Department’s counsel had intended to introduce it as a part of the Department’s case in chief and had already labeled the exhibit as “Respondent’s Exhibit A.”

[2] The testimony of witnesses is shown here and elsewhere in this document as a quotation.  The administrative law judge understands the language contained within quotations to be exactly as written, but the quotations are not taken from an official transcript of the hearing.  If the transcript, at a later time, reflects different language the transcript shall be considered the true and accurate record of testimony.