CADDNAR

[CITE: Garvin, et al. v. DNR, 5 CADDNAR 125 (1990)]

 

 

[VOLUME 5, PAGE 125]

 

Cause #: 89-222W

Caption: Garvin, et al. v. DNR
Administrative Law Judge: Rider
Attorneys: Garvin, pro se; Mclnerny, DAG
Date: August 16, 1990

ORDER

 

[NOTE: THE DECISION WAS AFFIRMED ON JUDICIAL REVIEW BY THE JEFFERSON CIRCUIT COURT AS SET FORTH BELOW. NO APPEAL WAS TAKEN.]

The Claimants have failed to demonstrate that they are entitled to relief under IC 13-2-2.5.

FINDINGS OF FACT

 

1. On October 16, 1989, Gary Speth, Sr. filed an objection to the Division of Water's (DOW) failure to declare a groundwater emergency for his properties.

 

2. On November 13, 1989, Jay and Norma Garvin filed a similar objection.

 

3. On February 27, 1990, the Garvins petitioned to add other Claimants listed in this action. This petition was approved by the administrative law judge the same day it was filed.

 

4. The Garvins represented all the Claimants to this action during the discovery, hearing, and posthearing phases.

 

5. IC 4-21.5, IC 13-2-2.5, and 310 IAC 0.6 apply to this proceeding.

 

6. The Natural Resources Commission (the "Commission") is an agency as defined in IC 4-21.5-1-3 and is the ultimate authority with respect to this proceeding.

 

7. The Claimants filed a petition of complaint with the DOW on November 10, 1988, which requested that an investigation of the significant groundwater withdrawal facility owned and operated by Silver Creek Sand and Gravel Company (Silver Creek) be conducted pursuant to IC 13-2-2.5.

 

8. Since the summer of 1988 and continuing to the date of the hearing on this case, the DOW has investigated the groundwater resources in the area.

 

9. There is no question that the Claimants have experienced well problems since the summer of 1986. The Claimants presented unchallenged evidence to that effect.

 

10. Silver Creek began doing business at its present location in 1986 and used a dewatering process to extract minerals.

 

11. Silver Creek registered with DOW as a significant water withdrawal facility on September 19, 1988.

 

12. Silver Creek's registration was late and evidence shows that it probably had been drawing significant water from the ground since 1986. There is no penalty for failure to register.

 

13. IC 13-2-2.5-3 (the "statute") governs the criteria to be followed to declare a groundwater emergency.

 

14. The portions of the statute in dispute are subsections (a)(5) and (a)(6).

 

15. The Claimants have the burden of persuasion in showing the requirements of the statute have been met.

 

16. Subsection (a)(5) of the statute has two subparagraphs (A) and (B).

 

17. Subparagraph (A) requires a showing that the lowering of the groundwater level exceeds normal seasonal water fluctuations. This was proved.

 

18. Subparagraph (B) requires a showing that there was a substantial impairment of continued use of the groundwater resource in the area. This was proved.

 

19. Subsection (a)(6) requires a showing that the lowering of the groundwater level was caused by Silver Creek. This was not proved by the Claimants.

 

20. The DOW uses test wells and shut-off periods to determine the affects of Silver Creek pumping on wells in the area.

 

21. The only well effects that the DOW could attribute directly to Silver Creek were to the wells of David Thompson (1013 McCulloch Pike, Clarksville), Jerry Schneider (1017 McCulloch Pike, Clarksville), and Eileen Carpenter (1019 McCulloch Pike, Clarksville).

 

22. Groundwater emergency orders were issued for the Thompson and Schneider wells which were promptly replaced by Silver Creek.

 

23. No emergency order was issued for Carpenter because her well did not fail.

 

24. The only expert testimony offered in this case was presented by the Department in the form of Dow hydrologist's analysis of the situation presented here.

 

25. The testimony pointed out that no data

 

[VOLUME 5, PAGE 126]

 

collected could positively identify Silver Creek as the cause of the numerous well failures.

 

26. The experts furnished two other possible causes for the well failures: a. the severe drought in the summer of 1988 which caused well failures all over Indiana, and b. the stage of the Ohio River, which is hydrologically connected to the groundwater used by the Claimants, was extremely low in the summer of 1988.

 

27. The experts testified that the drought and/or the stage of the Ohio River were the most likely cause(s) of the well failures and Silver Creek was the least likely cause based on the data collected.

 

28. The Claimants called no experts in hydrology to attempt to refute the DOW hydrologists.

 

29. Since the Claimants were not able to prove that Silver Creek caused the well failures in question here, a groundwater emergency cannot be declared against Silver Creek.


__________________________________________________________________

[NOTE: CADDNAR citation does not apply to the Jefferson Circuit Court entry.]

 

JEFFERSON CIRCUIT COURT ENTRY

On July 10, 1992, the Jefferson Circuit Court dismissed with prejudice the petition for judicial review filed by Jay Garvin and Norma Garvin. In support of the dismissal order, the Court made the following entry:

This cause is before the Court on a Petition for Judicial Review filed pursuant to IC 4-21.5-5 et seq. by the Petitioners, Jay and Norma Garvin, appearing pro se. The petition challenged a Final Order of the Natural Resources commission (hereinafter "NRC") which found the Petitioners failed to demonstrate they were entitled to relief under IC 13-2-2.5.
The issues on review were briefed by both parties and the parties appeared at a hearing on June 22, 1992, at which time it was determined that the parties wished to stand on the pleadings and oral argument would not be necessary. The matter is fully briefed and ready for disposition.

The Garvins were among a group of residents filing a Petition of Complaint with the Department of Natural Resources (hereinafter "IDNR"). The Complaint was filed November 10, 1988, and asserted that several domestic water wells in the Clarksville area had failed to furnish their normal supply of water and requested that an investigation of the significant groundwater withdrawal facility owned and operated by Silver Creek Sand and Gravel Company (hereinafter "Silver Creek") be conducted pursuant to IC 13-2-2.5.

In the summer of 1988, prior to receiving the formal Complaint, the DNR had established a network of observation wells and began monitoring them to determine if Silver Creek had caused the failure of the area residents' wells. The DNR was unable to document any significant cause and effect relationship between Silver Creek's pumping activities and the failure of the residents' wells until January of 1989, when Silver Creek began pumping out of its north pit area. DNR then installed three new monitoring wells to determine the effect of Silver Creek's pumping activities in the north pit.

Evidence from the monitoring wells installed in the north pit area enabled DNR to document a definite cause and effect relationship between Silver Creek's pumping activities in the north pit and the lowering of water levels in domestic wells in the immediate vicinity of the north pit. Groundwater Emergency Orders were issued to Silver Creek, pursuant to IC 13-2-2.5, ordering Silver Creek to replace the wells of two of those residents with domestic wells immediately adjacent to the north pit. The Garvins were not included in this Emergency Order.

The Garvins, along with other claimants to the original petition, initiated an administrative action, pursuant to IC 4-21.5, alleging that Groundwater Emergency Orders should have been issued regarding their wells. A hearing was held before the Administrative Law Judge, Tim Rider, in Jeffersonville, Indiana, on May 9, 10, and 11, 1990. The Claimants to the original petition were represented at the hearing by the Garvins, who appeared pro se. The Garvins called a multitude of witnesses at the hearing; however, they failed to call any expert witness in the field of hydrology to refute the expert testimony put on by the DNR.

The Administrative Law Judge (hereinafter "ALJ") filed his Findings of Fact and Order on August 16, 1990. After making his Findings of Fact the ALJ determined that the Claimant's including the Garvins, had the burden of persuasion in showing that the requirements of IC 13-2-2.5-3 had been met and they failed to demonstrate that they were entitled to relief under the statute.

The claimants filed objections to the findings of the ALJ and a hearing was held September 19, 1990, before the Natural Resources Commission. The NRC is the ultimate authority for the Department of Natural Resources pursuant to 310 IAC 0.6-1-9(d). The NRC voted to defer its final decision for two months to permit additional monitoring.
On November 26, 1990, the NRC heard the arguments of the DNR and the Claimants, as represented by the Garvins, and voted unanimously to adopt the findings of the ALJ. At the hearing the DNR introduced hydrographs of additional monitoring activities and additional maps and hydrographs to aid in summarizing evidence that had been admitted at the hearing before the ALJ.

The Claimant's filed a Petition for Administrative Review on December 21, 1990. All Petitioners withdrew, with the exception of the Garvins who were the sole Petitioners on judicial review.
On November 26, 1991, the Garvins filed their Notice of Transmittal of the Agency Record, accompanied by an objection to Adequacy of Agency Record and Motion pursuant to IC 4-21.5-5-12(b). A hearing was held on this matter and the four exhibits used by the DNR in the November 26, 1990, meeting of the NRC were given to the Court for review. Respondents were requested to address in their Brief on Judicial Review what effect, if any, these additional exhibits had on the final decision of the NRC.

The issues before this court for consideration on judicial review are:

 

1. Whether the Natural Resources Commission (NRC) decision to deny Petitioners the relief sought under IC 13-2-2.5-3 was arbitrary and capricious, an abuse of discretion, contrary to law, and based on insufficient evidence?

2. Whether the Petitioners were accorded their procedural rights under IC 13-2-2.5-3?

3. Whether the Petitioners were prejudiced by the introduction of additional evidence, which was not part of the record, at the meeting of the NRC prior to the NRC's adoption of the findings of fact of the administrative law judge. (Brief of Respondent, pl)[FOOTNOTE 1]

GENERAL PRINCIPLES

Judicial review of an administrative decision is limited to whether the agency possessed jurisdiction over the subject matter, and whether the agency's decision was made pursuant to proper procedures, was based upon substantial evidence, was not arbitrary or capricious, and was not in violation of any constitutional, statutory or legal principle. State Board of Tax Commissioners v. Jewell Grain Company, Inc. (1990), Ind., 556 N.E.2d 920, 921, citing State Board of Tax Comm'rs v. South Shore Marina (1981), Ind. App., 422 N.E.2d 723.

This Court, in reviewing the decision of an administrative body, is not to substitute its own opinions and conclusions for those of the agency, but, rather, must give deference to the expertise of the agency. Aaron v. Review Board, etc. (1981), Ind. App., 416 N.E.2d 125; and Capital Improvement Board, etc. v. Public Service Commission (1978), 176 Ind. App. 240, 375 N.E.2d 616. In addition, this court may not reweigh the evidence in reviewing a decision of an administrative body. Clarkson v. Department of Insurance, etc. (1981), Ind. App., 425 N.E.2d 203. With these principles in mind, this Court reviewed the final order issued by the NRC.

I. THE NRC'S DECISION TO DENY PETITIONERS RELIEF UNDER IC 13-2-2.5-3 WAS NOT ARBITRARY AND CAPRICIOUS, NOR CONTRARY TO, INDIANA LAW, AND WAS BASED ON SUFFICIENT EVIDENCE.

In Clarkson v. Department of Insurance, Supra, the court defined arbitrary and capricious action on behalf of an agency as, ...willful and unreasonable conduct without consideration and in disregard of the facts of the case; action taken without some basis which would lend a reasonable person to such action. Citing Hatcher v. Smith (1972), 152 Ind. App. 299, 283 N.E.2d 582. The burden of proving the action was arbitrary and capricious or an abuse of discretion falls upon the party attempting to upset the administrative order. Department of Financial Institutions v. State Bank of Lizton (1969), 253 Ind. 172, 252 N.E.2d 248. The Garvins have failed to meet that burden. The NRC based its Final order on objection arguments heard during the Commission Meetings of September 19, 1990, and November 26, 1990, and the Findings of Fact and recommendation of the ALJ. The ALJ heard three days of testimony in which the Garvins had the burden of proof in challenging an agency action. The Garvins called no expert witnesses to refute the DNR's expert in hydrology, nor introduced any of their own independent hydrological data, but merely challenged the agency's interpretation of its own data. This Court determines that no basis exists for finding that the NRC's adoption of the Findings of Fact and order of the Administrative Law Judge was arbitrary and capricious and an abuse of discretion.

The Garvins challenged the Final Order of the NRC as being contrary to law. The Water Rights Law, IC 13-2-2.5, requires that an investigation be made upon a written complaint filed with the DNR, claiming that a domestic water well has failed to furnish its normal supply of water. The investigation must disclose several key factors before the Director of the DNR can issue a Groundwater Emergency Order. The most important factors, identified by the ALJ's Findings of Fact, items 14, 17, 18, and 19 are as follows:

 

(4) that the failure of the well was caused by the lowering of the ground water level in the area;

 

(5) that the lowering of the ground water level is such that it:

(A) exceeds normal seasonal water level fluctuations; and

(B) substantially impairs continued use of the ground water resource in the area; and

 

(6) that the lowering of the ground water level was caused by one (1) or more significant ground water withdrawal facilities; .... The Administrative Law Judge, and thus the NRC, determined that the Garvins did not prove that the lowering of the groundwater level was caused by Silver Creek. The statute imposes a duty upon the Division of Water of the DNR to conduct an investigation to determine if the provisions in IC 13-2-2.5-3(a) exist. That is all that the law requires. The Division of Water was not under a duty to make a final determination as to why the Garvins' well failed, but only whether their well failure was caused by the pumping activities of Silver Creek Sand and Gravel.

A Groundwater Emergency Order cannot be issued unless each provision in IC 13-2-2.5(a) is met. The Record clearly shows that the Division of Water could not document a cause and effect relationship between the Garvins' well failure and Silver Creek's pumping activities after an extensive investigation in which the DNR installed additional monitoring wells adjacent to the north pit nearest the Garvins' home. The Garvins had the burden of persuasion under IC 4-21.5-314 when challenging the DNR's decision not to issue a Groundwater Emergency for their well. The Garvins did not meet this burden. The NRC's Final Order adopting the determination by the ALJ, that the Garvins failed to meet their burden, was not contrary to law.

The court in Swingle v. State Employees' Appeals Commission (1983), Ind. App., 452 N.E.2d 178, set out the case law in Indiana concerning judicial review of the factual determination in an administrative decision when it said:

 

In a judicial review of administrative decisions it is not the function of the reviewing court to determine the facts de novo and come to its own conclusion. The board, not the court, must weigh the evidence and determine any issue of fact. If any substantial evidence to support the finding of the board exists, the court may not disturb the board's decision. Department of Financial Institutions v. State Bank of Lizton, (1969) 253 Ind. 172, 252 N.E.2d 248; Farmers State Bank, LaGrange v. Department of Financial Institutions, (1976) 171 Ind. App. 145, 355 N.E.2d 277; Indiana Education Employment Relations Board v. The Board of School Trustees, (1976) 171 Ind. App. 79, 355 N.E.2d 269. Swingle, supra at 181.

The NRC voted unanimously to adopt the Findings of Fact and recommendation of the ALJ; Findings of Fact that were based on a three day administrative hearing. It is not the function of this Court to reweigh the evidence, but rather to determine whether there was sufficient evidence in the Record to support the ALJ's findings and thus the Final Order of the NRC. Upon review of the Record and the Findings of Fact of the ALJ, this Court finds sufficient evidence to support the Final order of the NRC. Evidence provided by the Garvins showed that their well failed during the summer of 1988. This evidence went unchallenged. The Record also shows that Silver Creek Sand and Gravel registered as a significant water withdrawal facility on September 19, 1988. The Record shows that the lowering of the groundwater level exceeded normal seasonal fluctuations and substantially impaired the groundwater resource in the area, thus meeting the requirements of subsection (5)(A) and (B) of IC 13-2-2.5-3(a). However, subsection (a)(6) requires that the Garvins prove that the groundwater level was caused by the pumping activities that this was not proven, and this Court finds sufficient evidence in the Record to support the ALJ's finding. A review of the Record shows that the Division of Water used both new and established monitoring wells during pumping and scheduled shutdowns to try to document a cause and effect relationship between Silver Creek's pumping activities and the well failures of area residents. The Division of Water was only able to document direct effects to three of the wells adjacent to the north pit. Groundwater Emergency Orders were issued for two of those wells. The Garvins challenged the fact that no Groundwater Emergency Order was declared for their well; however, the Record shows that the Division of Water was unable to document a direct cause and effect relationship between Silver Creek's pumping activities and the Garvins' well failure. Experts for the Division of Water testified that the severe drought and the lower stage of the Ohio River was a more likely cause of the failure of the Garvins' well. This evidence was never before refuted because the Garvins failed to call any of their own experts in hydrology. The Garvins' argument of insufficiency of the evidence similarly fails.

II. PETITIONERS WERE ACCORDED THEIR PROCEDURAL DUE PROCESS RIGHTS UNDER IC 13-2-2.5-3 AND THE ADMINISTRATIVE ADJUDICATION ACT.

The Garvins cited two specific incidences where they felt they were denied their procedural due process rights: the first, that the NRC failed to address the objections raised by the Garvins during the November 26, 1990 meeting, and the second, that they didn't receive an investigation of their well under IC 132-2.5. Both claims fail.

Under the Administrative Adjudication Act, IC 4-21.5-3-29 provides that the final reviewing authority, in this case the NRC, will address properly presented objections. Respondents submitted the official Minutes of the November 26, 1990, meeting, which is the official record of the meeting pursuant to 310 IAC 0.6-2-2. The Minutes clearly show that the NRC addressed the objections the Garvins raised during the November 26, 1990, meeting. That is all that IC 4-21.5-3-29 provides.

The Garvins also claimed that they were denied their procedural rights under IC 13-2-2.5-3, which provides an investigation into a claimant's well failure. This claim finds no support in even a cursory review of the Record. The Record reveals that the DNR did an extensive investigation which involved installing monitoring and observation wells and tracking these wells during scheduled shutdowns of Silver Creek's pumping activities, clearly going beyond the limited investigation provided by IC 13-2-2.5.

III. PETITIONERS WERE NOT PREJUDICED BY THE INTRODUCTION OF SUMMARY EXHIBITS DURING THE NRC MEETING.

Finally, the Garvins challenged the use of four exhibits which were used by the DNR during the NRC's November 26, 1990, meeting, at which time the NRC issued its Final Order. IC 4-21.5-3-28(c)(3) provides that the final reviewing authority, in this case the NRC, has the power to hear additional evidence. Even assuming that the four exhibits were actually additional evidence, the NRC has the authority to take that evidence into consideration; however, the Record clearly shows that the four exhibits were merely summaries and blow-ups of evidence introduced at the three day administrative hearing. The Garvins failed to show any prejudice from the use of these four exhibits.

The Court has carefully examined the Garvins' claims and the Record in this case. The Garvins received all the process they were due. The Record supports the Respondent's assertion that the Garvins' rights were fully protected and not Attachment abridged. Accordingly, the Court finds the law is with the Respondent and againsT the Petitioners and that the Petition for Judicial Review is hereby DENIED and this cause is DISMISSED.

FOOTNOTE:
1. The issues on judicial review were set out specifically in the brief of Respondent. Petitioners failed to object to these issues in their subsequent Reply Brief In Support of Judgment.