[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.