Summary judgment is granted to the Department... on the basis that the Save the Tee Pee Committee... has failed to state a claim upon which relief can be granted. No legal duty exists in the ... Review Board to make an effort to restore or locate a viable candidate to restore the Tee Pee Restaurant. The certificate of approval issued under IC 14-3-3.4-9 on July 23, 1987 by the... Review Board to the ... Fair Board is affirmed.
FINDINGS OF FACT
l. The department of natural resources (the "Department") is an "agency" as the term is defined in IC 4-21.5-1-3. The administrative adjudication act (IC 4-21.5) is applicable to an "agency action" of the Department.
2. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
3. As provided in IC 14-3-3.4-9, no historic site or historic structure owned by the state of Indiana and no historic site or historic structure listed on the state or national register may be altered, demolished, or removed by any project funded, in whole or in part, by the state of Indiana unless a certificate of approval is granted by the Board.
4. The Board is the ultimate authority for the Department under IC 4-21.5-1-15 and IC 14-3-3.4-9.
5. On July 23, 1987, the Board issued a certificate of approval to the Indiana state fair board "to demolish the old Tee Pee Restaurant in Indianapolis with the condition that the structure be recorded in accordance with the Board's Minimum Architectural Documentation Standards prior to demolition" (the "Certificate").
6. As defined under IC 4-21.5-1-8, "license" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law.
7. A "certificate of approval" under IC 14-3-3.4-19 is a "license" as the term is defined under IC 4-21.5-1-8.
8 . The issuance of a certificate of approval is subject to the notification requirements of IC 4-21.5-3-5.
9. Richard A. Gantz, Director of the Division of Historic Preservation and Archeology, provided on behalf of the Department a notification of the Certificate under IC 4-21.5-3-5 on August 4, 1987.
10. R. L. Johnson, Chairman of the Save the Tee Pee Committee (individually and collectively the "Committee"), on August 18, 1987 requested an administrative review of the issuance of the Certificate. The request for review was timely as prescribed by IC 4-21.5-3-7.
11. The request for review made by the Committee was not accompanied by a petition under IC 4-21.5-3-5 for stay of effectiveness of the Certificate. The Committee has not subsequently requested a stay of the effectiveness of the Certificate.
12. Stephen L. Lucas was appointed by James M. Ridenour, director of the Department (and state historic preservation officer), as the administrative law judge to conduct this proceeding under IC 4-21.5.
13. The administrative law judge set this proceeding for a prehearing conference on September 15, 1987. Notice of the prehearing conference was provided by mail and by a newspaper publication on September 2, 1987 in the Indianapolis Daily Star, a newspaper of general circulation in Marion County, Indiana.
14. The newspaper publication identified in finding 13 provided, in addition to notification of the prehearing conference, that "[a]ny person wishing to obtain administrative review of the [C]ertificate, to intervene in this proceeding, or to receive notification of subsequent prehearings, hearings, orders and determinations in this cause should make such written request by September 30, 1987" to the administrative law judge. The newspaper publication also provided that "[a] person who fails to seek timely administrative review or to intervene in this proceeding in accordance with IC 4-21.5 is precluded
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from obtaining administrative review of the [C]ertificate ... "
15. A prehearing conference was convened on September 15, 1987, but it was continued upon a determination that service of notification of the prehearing conference was not made upon the Committee.
16. The parties and other known or anticipated interested person were notified of a rescheduled prehearing conference set for September 29, 1987 at 9:00 a.m., EST, in Room 602, State office Building, Indianapolis, Indiana.
17. A prehearing conference was conducted in this proceeding on September 29, 1987 in accordance with IC 4-21.5 (the "Prehearing conference").
18. During the prehearing conference, R. L. Johnson described the Committee as an unincorporated group of twelve or more citizens dedicated to preserving and developing the Tee Pee Restaurant.
19. An opportunity was accorded to those present during the prehearing conference to intervene in the proceeding.
20. No one has sought to intervene in the proceeding either during the prehearing conference or in response to the newspaper publication identified in finding 13. The only parties are the Committee and the Department.
21. The Committee and the Department presented, during the prehearing conference, the exclusive issues for consideration in this proceeding. Those issues are the following:
(A) whether a bona fide effort was made to restore or locate a viable candidate to restore the Tee Pee Restaurant;
(B) whether the Committee has failed to state a claim upon which relief can be granted; and
(C) whether the Committee lacks standing to bring this proceeding.
22. During the prehearing conference, the Committee and the Department stipulated as to the burden of persuasion and the burden of going forward with the proof as described in IC 4-21.5-3-14(c). Pursuant to the stipulation, the Committee has the burdens with respect to the issue described in finding 21(A); and the Department has the burdens with respect to the issues described in finding 21(B) and 21(C).
23. On November 5, 1987, the Department filed a motion for summary judgment pursuant to IC 4-21.5-3-21. The motion contended as follows:
A. The Committee has failed to state a claim against the Department upon which relief can be granted.
B. The Committee does not qualify for review of the order which forms the basis for this proceeding.
C. A genuine issue as to any material fact does not exist.
D. The Department is entitled to judgment as a matter of law.
24. Attached to the motion for summary judgment filed by the Department was a memorandum in support of the motion and three exhibits.
25. The statutory chapter which governs the Board and defines its functions is IC 14-3-3.4. Those functions are particularly identified in IC 14-3-3.4-9 and IC 14-3-3.4-12(g).
26. IC 14-3-3.4-9 is described in finding 3. IC 14-3-3.412(g) provides that the Board "shall carry out the duties assigned in this chapter and as required under the National Historic Preservation Act, and under the regulations relating to the act."
27. The National Historic Preservation Act identified in IC 14-3-3.4-12(g) refers to the "National Historic Preservation Act of 1966" as found in 16 U.S.C. 470 through 16 U.S.C. 470(w).
28. The National Historic Preservation Act in 16 U.S.C. 470(b) provides for state historic preservation programs. That subsection authorizes the Secretary of the Interior to promulgate regulations to approve a state program if the Secretary determines the program provides for:
(A) the designation and appointment by the governor of an appropriate state historic preservation officer;
(B) an adequate and qualified state historic preservation review board; and
(C) adequate public participation "in the state historic preservation program, including the process of recommending properties for nomination to the National Register."
29. The Secretary of the Interior has promulgated regulations to establish procedures for review and approval of state historic preservation programs at 36 C.F.R. 61.4(c)(2).
30. Regulations governing the composition and responsibilities of a state historic preservation review board are found within 36 C.F.R. 61.4(e).
31. Notably, 36 C.F.R. (e)(7) provides that a state historic preservation review board shall:
(A) Review each National Register nomination proposal in the state before submission to the National Register to determine if the property "meets the National Register criteria for evaluation, and to make a recommendation that the [s]tate nominate or reject the proposed nomination";
(B) Participate in the review of appeals to National Register nominations and provide written opinions on the significance of properties;
(C) Advise the state "about documentation submitted in conjunction with the Historic Preservation Fund"; and
(D) Provide "general
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advice, guidance and professional recommendations" to the state historic preservation officer.
32. The Department and the Board are "covered by" 36 C.F.R. 61. [See 36 C.F.R. 61, Appendix B.]
33. There is no requirement in IC 14-3-3.4, the National Historic Preservation Act or regulations relating to that Act which mandates a state historic preservation review board make an effort to restore or locate a viable candidate to restore a historic site or historic structure which is the subject of a certificate for approval to demolish under IC 14-3-3.4-9.
34. There is no requirement in IC 14-3-3.4, the National Historic Preservation Act or regulations relating to that Act which mandated the Board make an effort to restore or locate a viable candidate to restore the Tee Pee Restaurant before its issuance of the Certificate to the Indiana state fair board.[FOOTNOTE i.]
35. There is no genuine issue as to any material fact with respect to whether an effort is required by the Board to restore or locate a viable candidate to restore the Tee Pee Restaurant. No effort is required.
36. The Committee has failed to state a claim upon which relief can be granted.
37. Summary judgment should be granted in favor of the Department and against the Committee because the Committee has failed to state a claim upon which relief can be granted. There is no duty by the Board to restore or locate a viable candidate to restore the Tee Pee Restaurant.[FOOTNOTE ii]
FOOTNOTES
i. The Department notes in its Motion for Summary Judgment filed on November 5, 1987 that the sole issue raised by the committee is whether a bona fide effort was made to restore or locate a viable candidate to restore the restaurant. After asserting that the Committee "has failed to state a claim upon which relief can be granted," the Department observes: The ... Board does not own the restaurant. The ... Board had absolutely no duty to seek tenants to operate or restore the restaurant. The sole duty of the ... Board in the context of this action is to grant or reject requests for certificates of approval for the alteration, demolition or removal of historic sites. The... [Committee] has not taken issue with the ... Board's action... . This is not to say the ... Board did not do its utmost to leave the opportunity to restore the restaurant open. It delayed action on the Fair Board's request for fifteen months so that a viable proposal to restore the restaurant could be presented to the Fair Board... .
ii. The National Historic Preservation Act places emphasis upon the need for public participation in the historic preservation review process. See, for example, 16 U.S.C. 470(b) as discussed in finding 28(C). The inference is that standing should be construed liberally. The record in this proceeding does not, however, establish whether the Committee is or is not entitled to contest an action under IC 14-3-3.4-9. Because of the disposition of this proceeding on other grounds, standing need not be decided here.