[CITE: Ed Scott v. DNR & Martinsville Parks Dept and Roxanne Scott v. DNR & Martinsville Parks Dept., 12 CADDNAR 172 (2009)]

 

 

[VOLUME 12, PAGE 172]

 

Cause #: 09-110W (09-111W)

Caption: Ed Scott v. DNR & Martinsville Parks Dept and Roxanne Scott v. DNR & Martinsville Parks Dept

Administrative Law Judge: Jensen

Date: August 19, 2009

 

 

FINAL ORDER OF DISMISSAL

 

Proceedings entitled Ed Scott v. Martinsville Parks Department and Department of Natural Resources, Administrative Cause Number 09-110W, and Roxane Scott v. Martinsville Parks Department and Department of Natural Resources, Administrative Cause Number 09-111W, are hereby dismissed. 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Case History

 

1.      On June 12, 2009, Ed Scott, filed correspondence with the Natural Resources Commission (Commission), regarding Floodway Permit Application FW-25234 (hereinafter referred to as “the Application”).

 

2.      Also on June 12, 2009, correspondence was received from Roxane Scott that provided a U.S. Mail address for herself and Mr. Scott.  Roxane Scott’s correspondence was erroneously filed as a separate administrative proceeding although it is clear from her correspondence that she was providing additional information with respect to Mr. Scott’s earlier correspondence.

 

3.      Mr. Scott’s correspondence reflects that the Application involves the Martinsville Parks Board’s proposed athletic facility.

 

4.      Mr. Scott’s correspondence does not clearly indicate that action had been taken on the Application by the Department of Natural Resources (Department) or that he was actually seeking administrative review with respect to any particular Departmental action. See email correspondence from Director, Stephen L. Lucas, dated June 15, 2009.

 

5.      In any event, Administrative Cause Numbers were assigned to the matters and prehearing conferences were scheduled.  The Scotts were instructed to inform the assigned administrative law judge if their intent was not to seek administrative review.

 

6.      An initial prehearing conference was scheduled for July 8, 2009 and Mr. Scott sought on behalf of himself and Mrs. Scott to have the initial prehearing conferences rescheduled.  The prehearing conferences were rescheduled for July 23, 2009.

 

7.      On July 14, 2009, the Department filed its motion to dismiss and the rescheduled prehearing conferences were vacated and a briefing schedule was established.

 

[VOLUME 12, PAGE 173]

 

8.      Mr. Scott filed additional correspondence on August 12, 2009, the final date for filing responses to the Department’s motion to dismiss.  While the administrative law judge was uncertain that Mr. Scott intended the August 12, 2009 correspondence to constitute a response, it was deemed to be a response.

 

9.      The Department filed its reply on August 17, 2009.

 

10.  The findings, conclusions and final order are applicable equally to both of the above captioned causes of action.

 

 

Findings of Fact and Conclusions of Law

 

11.  Indiana Code § 4-21.5-3-7 requires that for a person to qualify for administrative the person:

 

…must petition for review in a writing that does the following:

(1)   State 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.

 

12.  “…the purpose of a petition is to provide any respondents of ‘reasonable notice as to the subject of administrative review. The general rules for civil pleadings require that a claim include a short and plain statement showing that the pleader is entitled to relief and a demand for the relief to which he deems himself entitled.”  Juday Creek, et al. v. Ralph Williams and Associates and DNR, 8 CADDNAR 90, (1998) citing Hoosier Environmental Council V. DNR and Vigo Coal Company, 8 CADDNAR 13 (1997).

 

13.  In reviewing the Department’s motion to dismiss the instant proceeding for failure of Mr. Scott to state a claim, the particular inquiry revolves around whether Mr. Scott’s correspondence complies with Indiana Code § 4-21.5-3-7 and presents any theory upon which the Commission may grant relief. 

 

14.  In this instance, Mr. Scott’s initial correspondence states certain facts followed by a statement of concern and an inquiry.  Mr. Scott’s correspondence refers to the Application but does not allege that the Department has made a determination as to the Application.  Therefore, Mr. Scott’s correspondence, on its face, fails to allege that he is referring to an “Order” as that term is defined at Indiana Code § 4-21.5-1-9.  While it is clear from the Department’s subsequent filings that the Application was approved by the Department and such approval resulted in the issuance of a permit, which is an Order subject to administrative review, Mr. Scott’s correspondence did not include even this basic information. 

 

15.  As is noted by Director Lucas’ June 15, 2009 email correspondence to Mr. Scott, the correspondence failed to even clearly indicate Mr. and Mrs. Scott’s intent to seek administrative review. 

[VOLUME 12, PAGE 174]

16.  The Commission has deemed allegations of general concerns “without providing any particulars” as insufficient to state a claim.  See Juday Creek, supra, wherein the jurisdictional basis for administrative review was not met by the statement of concern that the permit at issue in that case “has the potential for degrading Juday Creek.”

17.  Here, Mr. Scott’s concern and inquiry about contamination of private water wells is insufficient to state a claim upon which relief may be granted.