[CITE: Spurrier & Paddle Michiana v. DNR, 13 CADDNAR 166 (2013)]
[VOLUME 13, PAGE 166]
Cause #: 13-049D
Caption: Spurrier & Paddle Michiana v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Spurrier, Paddle Michiana); Wyndham (DNR)
Date: July 1, 2013
FINAL ORDER OF DISMISSAL
1. On March 11, 2013, Mark Spurrier, individually and as a member of Paddle Michiana (“Spurrier”), filed correspondence (the “petition”) with the Division of Hearings of the Natural Resources Commission (the “Commission”). In the petition Spurrier sought administrative review of closure on March 1, 2013 of a campground (the “subject campground”) at Pigeon River Fish and Wildlife Area in LaGrange County, Indiana. The Pigeon River Fish and Wildlife Area is owned by the State of Indiana and managed by the Division of Fish and Wildlife of the Department of Natural Resources (the “DNR”).
2. Pigeon River Fish and Wildlife Area is a “DNR property” for the purposes of 312 Ind. Admin. Code § 8 as defined at 312 Ind. Admin. Code § 8-1.5-6. As applied to this proceeding “DNR property” means:
…”DNR property” means land and water where any of the following applies:
(1) The department has ownership.
(2) The department holds a lease, easement, or license.
(3) A dedication was made under IC 14-31-1.
(4) The department manages the property….
3. For the purposes of 312 Ind. Code § 8, the subject campground is a “campground” as defined at 312 Ind. Code § 8-1.5-5:
“Campground” means an area that accommodates any of the following:
(2) Recreational vehicles.
(3) Vacation mobile homes.
4. 312 Ind. Code § 8 “applies to use by a person of any DNR property.” 312 Ind. Admin. Code § 8-1-1. “(a) A person must not place or maintain a camp, tent, or trailer except during periods and at sites authorized by the [DNR] for camping.” 312 Ind. Admin. Code § 8-2-11(a).
5. The petition is governed by Ind. Code § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”). The Commission is the “ultimate authority” under AOPA for the DNR, including matters arising from the management of a DNR property. The Commission adopted rules under 312 Ind. Admin. Code § 3-1 to assist with its implementation of AOPA.
6. The Commission is the ultimate authority under AOPA for a petition for administrative review regarding the use of a DNR property. Ind. Code § 4-21.5-1-15 and Ind. Code § 14-10-2-3. Jackson v. DNR, 13 Caddnar 53 (2012) and Colton Lambermont v. DNR, 12 Caddnar 215 (2010).
7. An administrative law judge was appointed for the Commission to conduct this proceeding under AOPA. Ind. Code § 14-10-2-2.
8. The administrative law judge scheduled a prehearing conference for April 12, 2013 in Columbia City, Indiana. Notice of the conference was sent to Spurrier and to the DNR. They are collectively the “Parties”. The Parties appeared as scheduled for the conference, as well as other persons who expressed interest.
9. During the prehearing conference, the administrative law judge granted leave to Spurrier to file a pleading to augment the petition. The pleading was attached to the “Report of Initial Prehearing Conference and Notice of Telephone Status Conference” entered on April 16, 2013.
10. During the conference, the Parties agreed to confer in the absence of the administrative law judge. The parties also agreed and were then ordered to comply with the following schedule for an anticipated DNR motion to dismiss:
(1) The DNR would file and serve upon Spurrier any motion to dismiss by April 19, 2013.
(2) Spurrier would file and serve upon the DNR a response to the motion to dismiss by May 24, 2013.
(3) The DNR would make any reply to a Spurrier response by June 3, 2013.
11. On April 17, 2013, the “Respondent Department of Natural Resources’ Motion to Dismiss Claimants’ Petition for Administrative Review” was filed timely.
12. On May 21, 2013, the “Claimant’s Request to Deny Respondent’s Motion of Dismissal” was filed timely.
13. On May 30, 2013, the “Respondent Department of Natural Resources’ Reply to Claimant’s Request to Deny Respondent’s Motion of Dismissal and Memorandum in Support of Claimant’s Request” was filed timely.
14. Also, during the prehearing conference the parties agreed to participate in a telephone status conference on June 14, 2013. The administrative law judge stated he would defer ruling upon the motion to dismiss until after the telephone status conference to allow the Parties a full opportunity to confer. The telephone status conference was conducted as scheduled on June 14, at which time they reported they had conferred but reached no accord.
[VOLUME 13, PAGE 167]
15. During the June 14 telephone status conference, Spurrier requested and was granted until June 28, 2013 to reply to “Respondent Department of Natural Resources’ Reply to Claimant’s Request to Deny Respondent’s Motion of Dismissal and Memorandum in Support of Claimant’s Request”.
16. On June 26, 2013, Spurrier filed timely the “Claimant(s) Response to Respondent, Department of Natural Resources (DNR) Reply to Claimant Request to Deny Respondent Motion of Dismissal”.
17. The proceeding is ripe for a disposition by the administrative law judge, under Ind. Code § 4-21.5-3-7 and 312 Ind. Admin. Code § 3-1-9(b)(3), of the DNR’s request for dismissal.
18. Generally, an Indiana state administrative agency has only those powers conferred on it by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995) and McCulloch v. Day, 12 Caddnar 85, 86 (2009).
19. The Indiana General Assembly has conferred power upon the Commission to perform administrative review of DNR agency actions. An agency action is defined at Ind. Code § 4-21.5-1-4:
(1) The whole or a part of an order.
(2) The failure to issue an order.
(3) An agency’s performance of, or failure to perform, any other duty, function, or activity under [AOPA].
20. To qualify for administrative review of any order, “a person must petition for review in a written document that does the following:
(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 petition is entitled to review under any law.”
Ind. Code § 4-21.5-3-7.
21. An “order” refers to “an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons.” Ind. Code § 4-21.5-1-9.
22. For the Commission to have authority to provide administrative review based on the petition, the DNR must have issued an “order” when it closed the subject campground.
23. In contrast to an order, “a rule is defined as the whole or any part of an agency statement of general applicability that has or is designed to have the effect of law and implements, interprets, or prescribes law or policy or the organization, procedure, or practice requirements of an agency. Ind. Code § 4-21.5-1-14. Case law has attempted to further draw a distinction between an order and a rule by recognizing that an order operates retrospectively upon events that have already occurred, but a rule has a prospective effect. Smith v. State Lottery Comm’n of Ind., 701 N.E.2d 926, 930 (Ind.Ct.App.1998), clarified on reh'g, trans. denied; see also Miller Brewing Co. v. Bartholemew County Beverage Co., 674 N.E.2d 193, 202 (Ind.Ct.App.1996). “It is axiomatic that the administrative rulemaking function, which results in administrative rules, is distinguished from the adjudicatory function of an agency, which results in administrative orders. The former involves an element of generality and operates prospectively upon a class of individuals while the latter operates retrospectively upon a particular individual or circumstance.” trans. denied. Indianapolis Downs, LLC v. Indiana Horse Racing Com’n, 827 NE 2d 162, 168 (Ind. App. 2005).
24. DNR’s closure of the subject campground was prospective from March 1, 2013. The closure was an exercise of rule adoption authority. A campground exists on a DNR property only if DNR authorizes a site for camping. “(a) A person must not place or maintain a camp, tent, or trailer except during periods and at sites authorized by the [DNR] for camping.” 312 Ind. Admin. Code § 8-2-11(a). Closure of the subject campground was not directed to Spurrier, either individually or as a member of Paddle Michiana. The closure applied to all persons and was based on the DNR’s exercise of a proprietary function defined by 312 Ind. Admin. Code § 8. As stated by the “Respondent Department of Natural Resources’ Motion to Dismiss Claimants’ Petition for Administrative Review” at page 10, the rule gives the DNR “managerial discretion to authorize or prohibit a particular use within a DNR property.” The closure did not constitute an order that was subject to administrative review under AOPA.
[VOLUME 13, PAGE 168]
25. In the petition, Spurrier champions principles and aspirations that are positive reflections of the values derived from Indiana’s natural resources, including the enhancement of quality of life through outdoor recreation. He directs attention to the Indiana Statewide Outdoor Recreation Plan 2011-2015 (the “Indiana SCORP”) at www.in.gov/dnr/outdoor/4201.htm. The Indiana SCORP provides insight and guidance but is not a mandate for the management of state public lands and provides no basis for Commission administrative review. The Indiana SCORP vision statement delivers an apt overview:
The SCORP is an information resource that qualifies and analyzes the state’s outdoor recreation resources for the social, environmental, health and economic benefit of citizens statewide. The SCORP is intended to support local, regional and state-level recreation decision making, as well as foster research, partnerships and cooperation among users, planners, government officials and nonprofits.
26. In the “Claimant(s) Response to Respondent, Department of Natural Resources (DNR) Reply to Claimant Request to Deny Respondent Motion of Dismissal”, Spurrier claims the DNR “has greatly undersold SCORP as merely an information resource. SCORP is a required document that states must produce in order to qualify for Land and Water Conservation Fund grants. The National Park Service website details rules concerning the use of LWCF money, as well as the maintenance of recreational facilities:
Section 6(f)(3) of the LWCF Act contains strong provisions to protect Federal investments and the quality of assisted resources. The law is firm but flexible. It recognizes the likelihood that changes in land use or development may make some assisted areas obsolete over time, particularly in rapidly changing urban areas. At the same time, the law discourages casual ‘discards’ of park and recreation facilities by ensuring that changes or ‘conversions from recreation use’ will bear a cost-a cost that assures taxpayers that investments in the “national recreation estate” will not be squandered.”
[Emphasis by Spurrier.]
27. The citation referenced by Spurrier is codified today as 16 U.S.C. § 460l-8. In particular, subdivision (3) provides:
(3) No property acquired or developed with assistance under this section shall, without the approval of the Secretary [of the U.S. Department of Interior], be converted to other than public outdoor recreation uses. The Secretary shall approve such conversion only if he finds it to be in accord with the then existing [SCORP] and only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and reasonably equivalent usefulness and location….
28. The “conversion” anticipated by 16 U.S.C. § 460l-8 is change from a recreational use to a nonrecreational use. Even a short-term change may not constitute a conversion. Sierra Club v. Davies, 955 F.2d 1188 (8th Cir. 1992).
29. Nothing in the record of this proceeding suggests a conversion has occurred. The subject campground was closed. The Pigeon River Fish and Wildlife Area was not transferred to nonrecreational usage.
30. Perhaps more importantly for consideration of the dismissal, 16 U.S.C. § 460l-8 does not place legal authority in the Commission for consideration of whether a conversion has occurred. The authority is placed in the Secretary of the U.S. Department of Interior.
31. Spurrier makes other claims as well. Without discussing each element of the petition in detail, a request to review an “order” under AOPA could not be located. AOPA does not provide a legal basis on administrative review to determine the merits of a campground closure within a DNR property.
32. The Commission lacks authority to provide administrative review to Spurrier for closure of the subject campground. The closure was the exercise of a proprietary function with general application to the public, authorized by rule, and was not an order directed to Spurrier or to him and other particular individuals. The Indiana SCORP does not provide a basis for State administrative review. The closure was not an agency action that confers the opportunity for administrative review under AOPA. The petition must properly be dismissed.
33. Mark Spurrier’s petition for administrative review of closure of the campground at Pigeon River Fish and Wildlife Area, sought individually and as a member of Paddle Michiana, is ordered dismissed.
 As provided in IC 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent. In 1988, the Commission adopted Caddnar as its index of agency decisions.
 AOPA makes one exception to the requirement in Ind. Code § 4-21.5-3-7(a) that a petition for administrative review be directed to an “order”. The exception applies to a “personnel action” which is not at issue in this proceeding.
 The parties also contest whether Spurrier or Paddle Michiana have the requisite “standing” to seek administrative review. With the determination closure of the subject campground was not an “agency action” or “order” that qualifies for administrative review, a disposition of standing is unneeded.