[CITE: Ogden Dunes v DNR, Beverly Shores
and NIPSCO, 4 CADDNAR 31 (1987)]
[VOLUME 4, PAGE 31]
Cause #: 86-120W
Caption: Ogden Dunes v DNR,
Beverly Shores and NIPSCO
Administrative Law Judge: Lucas
Attorneys: Buls; McInerny, DAG; Livarchik
and Morse
Date: July 28, 1987
ORDER
Administrative
action is dismissed with prejudice as Permit LM-44 has expired.
FINDINGS OF FACT
1.
The Department of Natural Resources (the "Department") is an agency
as the term is defined in IC 4-22-1.
2.
The Natural Resources Commission (the "Commission") is the ultimate
authority under IC 4-22-1-2.2 for the Department with respect to the entry of
an order under IC 14-3-1-14 (9) and IC 14-3-1-14.5. [See IC 4-3-3-21(a) ]
3.
The state of Indiana has title to the lands located within the boundaries of the
state and beneath Lake Michigan, a navigable waterway, up to the ordinary high
water mark of Lake Michigan.[[FOOTNOTE i]
4.
At issue in this administrative action is revision #2 made to Docket Number
LM-44 by action of the Commission during its regular monthly meeting in August
1986 ("Revision #2".) [See Pre-hearing Report, stipulation 2.]
5.
The authority for issuance of Revision 2, if Revision 2 was properly issued, is
found under IC 14-3-1-14 (9) and IC 14-3-1-14.5. Other statutory provisions may
affect how IC 14-3-1-14 (9) and IC 14-3-1-14.5 should be applied. [See
Pre-hearing Report, Stipulation 4.]
6.
Revision 2 was issued for an area located in Indiana within the ordinary high
water mark of Lake Michigan. [See Pre-hearing Report, stipulation 4.]
7.
On March 12, 1987, the Town of Ogden Dunes filed in this administrative action
its "Motion for Summary Judgment." The motion contended the Town of
Ogden Dunes was entitled to a judgment as a matter of law on either of two
grounds:
(a)
Permit LM-44 "has expired both in duration and scope of work authorized
and cannot be reinstated by a proposed revision thereto"; or
(b)
"The works, workings, and operations under the proposed permit would
damage or endanger down drift riparian owners."
8.
On March 19, 1987, the administrative law judge by written entry converted the
Motion for Summary Judgment described in finding 7 to a motion for summary
decision under 310 IAC 0.5-1-11.
9.
Permit LM-44 was issued by the Commission on May 26, 1982 under IC 14-3-1-14
(10), a subsection which provided within subpart (E) "that, subject to
suspension or revocation, the permit shall remain in force for such period as
the [D]epartment may determine, not to exceed five
(5) years from the date thereof; however, the permit shall be renewable to permittee by written application filed with the [D]epartment six (6) months prior to expiration of such
permit."
10.
The 1983 Indiana General Assembly amended IC 14-3-1-14 to remove subsection 10
of that section and to establish a new section (IC 14-3-1-14.5) to incorporate
the substance of what had formerly been included within IC 14-3-1-14 (10). That amendment was made effective September 1, 1983. [Public
Law 166-1983]
11.
The pertinent portion of IC 14-3-1-14.5 (d) currently provides that "[s]ubject to suspension or revocation, the permit will remain
in force for such period as the [D]epartment may
determine, not to exceed five (5) years from the date thereof; however, the
permit may be renewed by the permittee by written
application filed with the [D]epartment six (6)
months before expiration of the permit."
12.
IC 14-3-1-14 (10) which was effective before September 1, 1983, and IC
14-3-14.5 (d) which became effective on that date, have the same meaning. A
permit issued under either subsection is effective for not more than five (5)
years from issuance, unless a renewal is requested by the permittee
at least six (6) months before expiration and the Department grants the renewal
request.
13.
Permit LM-44 was "granted for a period of five (5) years" from issuance
on May 26, 1982.
14.
In its "Memorandum of Northern Indiana Public Service Company in Response
to Motion for Summary Judgment" filed in this administrative action on
April 27, 1987, the permittee, Northern Indiana
Public Service
[VOLUME 4, PAGE 32]
company, stated that the company
"is willing for purposes of this proceeding to consider its permit as
having expired."[FOOTNOTE ii]
15.
Permit LM-44 expired on May 22, 1987.
16.
Permit LM-44 authorized the Northern Indiana Public Service Company to remove
approximately 250,000 cubic yards of material. Revision 2 (or Revision 1) of
Permit LM-44 authorized the company to remove an additional 200,000 to 250,000
cubic yards of material from the site.
17.
Northern Indiana Public Service Company has been authorized by Permit LM-44
(including its revisions) to remove approximately 500,000 cubic yards of
material from the bed of Lake Michigan.
18.
Northern Indiana Public Service Company h ad removed approximately 538,000
cubic yards of material from the site under Permit LM-44.
19.
The scope of Permit LM-44 has been exhausted.
20.
Permit LM-44 has expired both in duration and scope of work authorized.
21.
The Town of Beverly Shores argues in its "Memorandum of the Town of
Beverly Shores to Motion for Summary Judgment" filed on April 27, 1987,
and during oral argument on May 12, 1987, that the substantive issues presented
by this administrative action would not be mooted by the expiration of Permit
LM-44.
22.
An issue is moot if the issue is " no longer
"live" or when the parties lack a legally cognizable interest in the
outcome'" of that issue. [Bartholomew County Hospital v. Ryan (1982), Ind. App., 440 N.E. 2d
754, 757, quoting United States Parole
Commission v. Geraghty (1980), 445 U.S. 388,
396.]
23.
A general application of the doctrine of mootness
would preclude a determination of the substantive issues raised by this
administrative action since Permit LM-44 has expired. Permit LM-44 is no longer
"live."
24.
The "public interest exception" is a deviation from the general
application of the doctrine of mootness.
25.
The public interest exception " may be invoked only upon the confluence of
three elements: the issue involves a question of great public importance which
is likely to recur in a context which will continue to evade review.'" [Ridenour v. Furness
(1987), Ind. App., 504 N.E. 2d 336, 342, quoting Bartholomew at 759.]
26.
The first element of the public interest exception is satisfied: the question
is one of great public importance. The Town of Ogden Dunes and the Town of
Beverly Shores contest the placement of materials to be removed during
excavations from the bed of Lake Michigan b y Northern Indiana Public Service
Company. The placement of these materials may affect significantly beach
erosion problems experienced along the Lake Michigan shoreline by both
municipalities and the residents of those municipalities.[FOOTNOTE iii]
27.
The second element of the public interest exception is satisfied: the issue is
likely to recur.[FOOTNOTE iv]
28.
The third element of the public interest exception is not satisfied: the issue
is not likely to continue to evade review.[FOOTNOTE v]
29.
The public interest exception to mootness does not
apply to this administrative action.
30.
With the expiration of permit LM-44 as described in paragraph 20, this administrative
action is made moot.
FOOTNOTES
i. This finding was stipulated by the parties and set
forth in the Report or Pre-hearing Conference and Order for Discovery dated
September 17, 1986 (the "Pre-hearing Report"). Support for the
Finding is also found in Garner v. City
of Michigan City, 453 F. Supp. 33, 35 (N.D. Ind. 1978):
Congress,
in 1953, enacted the Submerged Lands Act, whereby the federal government
quit-claimed title to all lands beneath navigable waters within state
boundaries to the various states, reserving in the federal government authority
over such lands and waters for the purposes of navigation. See 43 U.S.C.
Section 1301 et seq., especially 43 U.S.C., Section 1311 and 1312. By virtue of 43 U.S.C., Section 1301 (a) the State of Indiana
acquired title up to the ordinary high water mark.
ii. Northern Indiana Public Service Company states in
the April 27 Memorandum that "NIPSCO is of the opinion. . .Permit No.
LM-44 Rev II remains valid through 1991," but elects not to pursue that
stance in light of the motion for summary decision filed by the Town of Ogden
Dunes, and conceded by the Department of Natural Resources [See
"Respondent Department of Natural Resources' Response to Claimant's Motion
for Summary Judgment" filed April 27, 1987], asserting that the permit has
expired. The respondent intervenor, Town of Beverly
Shores, argues that a letter from NIPSCO to a Division of Water employee dated
June 27, "although designated as a revision'" constitutes the
requisite renewal request. The Town of Beverly Shores does acknowledge that
this position "has been clouded by NIPSCO's concession" contained in
its Memorandum. Beverly Shores goes on to contend "that it has a
sufficient interest in the sand being dredged to have standing before the Department
of Natural Resources in the permit proceeding." [See "Memorandum of
the Town of Beverly Shores in Response to Motion of Summary Judgment"
filed April 27, 1987]
[VOLUME 4, PAGE 33]
An
undue hardship might be imposed upon an individual or company which elects not to argue qualifications for a permit
renewal in the face of a procedural of technical contest by another party.
Continued litigation might be costly and nonproductive to the renewal
applicant, particularly if the alleged error can be cured through the
preparation of a new permit application. Northern Indiana Public Service
Commission should not be required to carry forward the battle as to whether
Permit LM-44 was properly renewed. Standing by the Town of Beverly Shores to
participate in an administrative determination of what the permit terms might
be is not questioned. The legitimate interests of the Town of Beverly Shores
are not dependent, however, upon whether sand is removed according to an
amended permit or a new permit. Those interests are dependent upon the
substance of whatever permit might be implemented.
iii.
Arguments by counsel presented on May 12, 1987 illuminate the significance of
any decision by the Natural Resources Commission concerning the placement of
dredge materials taken from Lake Michigan: George R. Livarchik,
attorney for the Town of Beverly Shores, urged: ". . .At the time of the
Ogden Dunes [administrative] appeal [of Revision 2], Beverly Shores was
experiencing a major threat from the erosive forces of Lake Michigan that was
imminently likely to imperil Lake Front Drive and cause Lake Front Drive and
some homes to fall into Lake Michigan. . . [A]n agreement was reached between
the parties to this action that permitted some sand to be dumped at the Beverly
Shores site that created a little Band-Aide effect,
but it was sufficient help to at least preserve a part of Lake Front Drive
until subsequent appropriations were made by the federal government to shore up
the abutment of Lake Front Drive." Speaking as counsel for NIPSCO, James
K. Morse, describes a resolution of issues presented
by the placement of excavated materials as being "a very important and
precedent setting decision in Indiana as to rights into a Lake Michigan lake
bed." Norman R. Buls argued on behalf of the
Town of Ogden Dunes: "The issue is. . .whether or
not the works authorized. . .[by a permit damage] riparian owners. . .[T]his
has to be the proper forum because the DNR is the only avenue, the only body,
that can make the determination as to where that sand should be deposited once
it is dredged. . ."
iv. Implicit to the arguments
of counsel is that NIPSCO will need to resume excavations in the future.
Although there is no direct evidence of this future contingency, the
probability of a recurrence of the substantive issues raised in this
administrative action was set forth clearly during the oral argument on May 12.
Counsel for NIPSCO stated: ". . .Assuming that
this case is mooted. . . , NIPSCO in the very near future, certainly by the end
of this summer at the absolute latest, will be sitting down with the DNR and
drafting new permit language and starting the permit process. We've already
talked to counsel for DNR. . ., and we'll be putting
that permit process underway. NIPSCO, barring any unforseen
circumstances, does not intend to dredge again at the Bailey Station until at
least 1989 and possibly not until 1990. . ."
v.
The Town of Ogden Dunes and the Town of Beverly Shores may seek an
administrative review of a future permit which may be sought by NIPSCO to
remove materials from the bed of Lake Michigan. That review would not be
conducted under the current administrative adjudication act (IC 4-22-1), but
under a revised and recodification statutory article
(IC 4-21.5) made effective July 1, 1987. One of the concerns raised by the Town
of Beverly Shores in arguments presented on May 12, 1987 is with the "time
delay that can be involved in the administrative hearing process." While
this concern is not completely obviated by IC 4-21.5, the new article presents
a more flexible approach to permit issuances. The automatic delay in the
implementation of a permit which is apparently required under current law will
no longer result.
[VOLUME 4, PAGE 34]
"If
objections were filed [under IC 4-22-1] by. . .another
affected person, there was authority suggesting that the effectiveness of a
permit was automatically delayed until all procedural requirements were met and
a final order was entered." [Kathleen Givens Lucas,
"Administrative
Adjudication--Revised and Recodified, "20
Ind. L. Rev. 1, 13 (1987) referencing Indiana
Envtl.
Management Bd. v. Town of Bremen (1984, Ind. App., 458 N.D. 2d 672] Under
IC 4-21.5-3-5 (f), if both a petition for administrative review and a petition
to stay are filed before a permit becomes effective, any part of the permit may
be delayed for an additional 15 days while a preliminary hearing is conducted
by an administrative law judge. Pursuant to IC 4-21.5-3-5 (h), the
administrative law judge may stay the permit in whole or in part.