[NOTE: B&LS FILED FOR JUDICIAL REVIEW IN THE MARION SUPERIOR COURT (49-D12-9910-MI-001433) ON NOVEMBER 15, 1999. ON JUNE 2, 2003, THE MARION SUPERIOR COURT RULED "CASE DISMISSED, WITH PREJUDICE, ON HEARING PER TRIAL RULE 41(E). JUDGMENT VS. PLAINTIFF FOR COSTS."]
This proceeding is dismissed because the Natural Resources Commission does not have jurisdiction over the case.
"B&LS/Shand's Statement of Remaining Issues" was filed on July 15, 1999. The "Respondent DNR's Response to Statement of Remaining Issues" was filed on September 1, 1999. Being duly advised, the Administrative Law Judge finds the Natural Resources Commission (the "NRC") lacks jurisdiction over the case. In order to memorialize a final disposition in the event a party wishes to take judicial review, a final order of dismissal is entered.
On June 3, 1991, B&LS Contracting Inc. and Shand Mining, Inc. ("B&LS") filed a Verified Complaint and Petitions and Applications for Declaratory Judgment, Judicial Review, Injunction, Preliminary Injunction, Temporary Restraining Order, and Mandate and Prohibition in the Marion Superior Court. On June 4, 1991, B&LS filed a request for a hearing and oral argument on its motion for temporary restraining order and preliminary injunction. On June 5, 1991, B&LS filed a Petition for Administrative Review, Stay, and Temporary relief with the NRC.
The DNR sought unsuccessfully to have the Marion Superior Court dismiss the judicial review by B&LS on the basis that B&LS failed to exhaust administrative remedies. In its complaint, B&LS contended it had exhausted administrative remedies by filing a petition for administrative review, petition for stay, and petition for temporary relief before the NRC. B&LS also argued any administrative review would be futile because the ALJ and NRC would follow the NRC's "erroneous" interpretation of authority under I-SMCRA.
The Marion Superior Court accepted jurisdiction on judicial review. On June 14, 1991, the Marion Superior Court issued a Temporary Writ of Prohibition, Stay, and Restraining Order, which declared the NRC and the DNR were "prohibited from enforcing the Director's May 17, 1991 Order or using it as a basis for any violation of SMCRA until further Order of this Court." This judicial order was unequivocal and pervasive.
The DNR appealed. A number of issues were argued on appeal[FOOTNOTE 1], including the relationship of common law water rights to I-SMCRA and the constitutionality of the regulation of groundwater by the DNR. B & S [sic. B&LS] argued unsuccessfully this regulation amounted to a "taking" under the Public Use Clause of the Fifth Amendment.
On August 3, 1994, the Supreme Court of Indiana reversed with instructions. "The judgment in the B & S [sic. B&LS] case is reversed with instructions to grant judgment
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for the NRC/DNR[Footnote 2] and other defendants." Natural Resources Com'n v. Amax Coal Co., Ind., 638 N.E.2d 418, 431 (1994).
On December 22, 1994, the Marion Superior Court made an Entry in which it reflected the parties had requested the Supreme Court of Indiana to clarify its August 4 opinion. "In light of the fact that the Supreme Court was specifically requested to clarify its opinion and chose not to do so, this Court also declines the invitation to in any way interpret the Supreme Court'sjudgment. . . . [T]he Court hereby vacates its judgment with respect to this cause and hereby enters judgment for the NRC/DNR and other Defendants." The judgment by the Marion Superior Court was again unequivocal and pervasive. Conspicuous is the absence of any remand to the NRC or of any suggestion there is more to be resolved.
As a general principle, an agency "has jurisdiction to modify a final order" on administrative review "before the earlier of the following...(3) A court assumes jurisdiction over the final order under IC 4-21.5-5." IC 4-21.5-3-31. "[T]he exclusive means for judicial review of an agency action" is established by IC 4-21.5-5. When the Marion Superior Court accepted judicial review of this proceeding, the NRC was deprived of jurisdiction over the case. The NRC could regain jurisdiction only upon remand by the Marion Superior Court (or another higher court).
Stated in the simplest of terms, this proceeding was taken by the B&LS on judicial review to the Marion Superior Court. The case has traveled to the Indiana Supreme Court and back to the Marion Superior Court, but it has never been remanded by the Marion Superior Court to the Natural Resources Commission. The NRC lacks jurisdiction over the case. A final order of dismissal must be entered.
FOOTNOTES
1. B&LS argues that only one issue was determined by the Supreme Court of Indiana and the Marion Superior Court in this proceeding. The "Respondent DNR's Response to Statement of Remaining Issues" is found persuasive on this point. The record does not support the argument that only a single issue was presented to the courts, reserving all other issues for administrative review. The record is to the contrary. Absent some stipulation by the parties, or the designation by the NRC of a particular issue or issues as being ripe for judicial review, it is incumbent upon the complaining party to persuade the trial court that a remand of some aspect of the case is appropriate. Failing in this persuasive effort, the remedy for B&LS lies with a higher court and not with the NRC.
2. The NRC was a participant with the DNR in permitting functions under I-SMCRA at the time Permit S-00224 was under consideration. As such, both the DNR and NRC were parties on judicial review and appeal. For permits considered today, the NRC may provide a forum for administrative review but does not otherwise participate in the permitting process. The authority for the issuance of permits rests exclusively with the Director of the DNR or with a designee of the Director who is a full-time employee of
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DNR. IC 14-11-3-1(c). As such, the NRC is today no longer a party to the review of permitting decisions. 312 IAC 3-1-18(e).