CADDNAR


[CITE: Board of Commissioners of Clay County v. DNR, Northern Coal, 5 CADDNAR 151 (1990)]

 

 

[VOLUME 5, PAGE 151

 

Cause #: 90-215R

Caption: Board of Commissioners of Clay County v DNR, Northern Coal
Administrative Law Judge: Teeguarden
Attorneys: Baumunk; Grimmett; Shadley
Date: October 29, 1990


ORDER

 

The DNR's motion to dismiss is granted. The decision to approve permit S-00248 is affirmed.

FINDINGS OF FACT

 

1. The Department of Natural Resources (DNR) is an agency within the meaning of IC 4-21.5.

 

2. The DNR is responsible for permitting and regulating surface coal mining in Indiana.

 

3. The Natural Resources Commission (NRC) is the ultimate authority within the meaning of IC 4-21.5 of administrative reviews of DNR actions.

 

4. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.

 

5. On November 8, 1989, Northern Coal Company, Inc. (Northern) applied to the DNR for permit number S-00248 in order to conduct surface coal mining in Clay County, Indiana.

 

6. On May 15, 1990, NRC delegates Gary Doxtater and Joseph Siener approved the permit application.

 

7. On June 15, 1990, the Board of Commissioners of Clay County (County) filed a request for administrative review of this permit approval, contending that the County owned the mineral rights on several properties within the permit area and that the County had not consented to mining on those areas.

 

8. The County did not object to mining commencing on areas not involved in the mineral rights controversy.

 

9. On August 3, 1990, the DNR filed a motion to dismiss the request for review for the reasons that the DNR is prohibited from adjudicating property titles and permit approval is not contingent on possessing mining rights to the entire permit area.

 

10. On September 17, 1990, the County filed a response to the DNR's motion claiming that the failure to list the County as an owner of certain mineral rights on the permit application voids the permit as the application was not complete and accurate as required by law.

 

11. On September 21, 1990, Northern filed a response which included a motion for summary judgment.

 

12. Northern contends that the County has waived its right to object to the permit, because it did not participate in the extensive public comment period.

 

13. Nothing in 4-21.5 requires a person to remonstrate prior to filing a request for administrative review.

 

14. This contention has some merit, however, in examining the application as to whether it was complete and whether the findings by the DNR could be made.

 

15. The County states in its response that the abstracts of title on which Northern relied were incorrect but that Northern acted in good faith.

 

16. Northern correctly points out that at the time Northern submitted the application, the DNR prepared its findings and recommendations, and the NRC delegates approved the permit; none of the above had any idea there was a problem.[FOOTNOTE 1]

 

17. The conclusion is thus drawn that the approval of the permit did not violate 310 IAC 12-3-114 or any other section of the surface mining act.

 

18. More importantly, permit approval is not predicated upon an applicant obtaining mining rights to the entire permit area.

 

19. IC 13-4.1-3-3 defines "permit area" as "the area of land indicated on the approved map submitted by the operator with his application, which area of land shall be covered by the operator's bond and shall be readily identifiable by appropriate markers on the site."

 

20. Applications are submitted months in advance of approvals.

 

21. IC 13-4.1-3-3 requires the applicant to provide names and addresses of owners of record of the property to be mined.

 

22. Neither the Surface Mining Act nor the application form itself requires the applicant to own or lease all property in the permit area when an application is

 

[VOLUME 5, PAGE 152]

 

filed or approved.

 

23. In fact, on this particular application, the property in question was listed as "lease pending".

 

24. Also cited by both Respondents was 310 IAC 12-3-21(c) which states, "Nothing in this section will be construed to afford the Department of Natural Resources the authority to adjudicate property title disputes."

 

25. Cited by the County is the landmark case of Schlens v Egnatz (1987), 508 N.E.2d 44 which sets forth the Indiana common law of primary jurisdiction. Schlens holds that whenever it is necessary for the agency to consider a collateral matter (such as property rights) in order to decide a claim which is within the agency's exclusive jurisdiction, the agency has jurisdiction to decide the collateral matter because the whole claim must be decided by the agency.

 

26. Granting (or denying) a surface coal mine permit is solely within the power of the DNR.

 

27. However, since the relief requested by the County deals only with the propriety of granting the permit, it is unnecessary to resolve the apparent conflict between 310 IAC 12-3-21(c) and Schlens, supra. The Department may grant a permit covering areas where title is disputed.

 

28. Nothing in the above findings, however, should be read in such a manner to say that the NRC is allowing mining to take place on lands where mineral rights are disputed. The only matter decided in this administrative review is whether or not a permit may be issued.

FOOTNOTE

 

1. The public comment period included an informal conference because of objections filed by other persons. None of the objections are relevant to the issue of mineral rights.