The Department's motion to dismiss is granted. Peabody Coal Company's request for administrative review is dismissed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency charged with the regulation of the surface mining of coal.
3. At all times relevant to these proceedings, Peabody Coal Company ("PCC") held permit S-00010 issued by the DNR which allows the surface mining of coal at the Hawthorn Mine in Sullivan County, Indiana.
4. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
5. on October 31, 1990, PCC filed for a permit revision of the Hawthorn permit.
6. That requested revision asked the DNR to find that PCC had valid existing rights ("VER"); and therefore, a DNR decision under 310 IAC 12-21 finding a small portion of the permit area to be "lands unsuitable for mining" was invalid.
7. On May 8, 1991, the DNR ruled that PCC did not possess VER for the area in question.
8. On May 23, 1991, PCC filed a timely request for administrative review pursuant to IC 4-21.5.
9. Since the DNR decision in this matter does not involve the grant, denial, or revocation of a permit to conduct a surface coal mining operation, the administrative law judge (ALJ) is the ultimate authority for the DNR within the meaning of IC 4-21.5.
10. The reason for the declaration of a small portion of the Hawthorn permit area as "lands unsuitable for mining" ("LUSM") by the DNR was because of the suspected existence of two cemeteries within the area.
11. IC 13-4.1-14-1(a)(5) and 310 IAC 12-2-1(g) provide that subject to VER, no surface coal mining operation shall be conducted within 100 feet of a cemetery.
12. 310 IAC 12-0.5-18 defines "cemetery" as "any area of land where human remains are interred".
13. At the time of the VER request, the DNR believed that two such cemeteries, O'Haver and McClung, existed in the permit area.
14. The parties agree that the O'Haver Cemetery issue is moot because of compliance with an "Order to Disinter" entered September 18, 1990, by the Honorable George Taylor, Judge of the Sullivan Circuit Court which ordered the removal of the O'Haver burial and reinterment in the Moriah Cemetery. Peabody thus has a right to mine the area with or without VER and the DNR acknowledged this fact on April 10, 1991.
15. The DNR, PCC, an archaeologist, and a funeral director conducted further studies on the McClung cemetery.
16. All the persons participating in the study referred to in paragraph 15 concluded there were no burial in the area the DNR had designated as the McClung cemetery.
17. The DNR sent PCC a letter to that effect on September 2, 1992.
18. The letter of September 2, 1992 advised PCC that mining activities could commence on that area.
19. The letter of September 2, 1992, also advised PCC that they should report the discovery of any additional cemeteries.
20. PCC contends that the essence of its request for review is the denial of its assertion of VER for the area, and that if PCC is required to report any cemeteries it finds, PCC's mining operations will be delayed because of the length of time it takes to get a DNR decision. Therefore, PCC asserts its request for review is not moot.
21. The DNR contends that because of the fact that PCC now has the right to commence mining in the former LUSM area, the matter is moot and a decision on VER is unnecessary.
22. Under IC 14-3-3.4-16 and 6-2-14-6, PCC has an affirmative
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duty to notify the DNR or the Sullivan County Coroner if it uncovers human remains.
23. In short, PCC is currently allowed to mine according to its approved plan.
24. The ALJ thus concludes there is no current case or controversy and the matter is moot.
25. PCC has a mechanism available to it to further pursue the VER issue. It may file a request for a special status determination (sometimes referred to as a "quasi-declaratory judgment" request) pursuant to 310 IAC 0.6-1-15 which would be the more appropriate way to decide this matter.