[NOTE: ON JUNE 27, 1994, KANDRAC TOOK JUDICIAL REVIEW TO MARION SUPERIOR COURT #1 (49DOl-9406-CP-0560). SUBSEQUENTLY, THE PARTIES STIPULATED TO A DISMISSAL, AND AN "ORDER OF DISMISSAL" WITH PREJUDICE WAS ENTERED ON NOVEMBER 30, 1994.]
The 1994 Order of the Review Board is void for lack of jurisdiction and is vacated. The 1988 order controls as a final order or determination of the Review Board. This proceeding is dismissed pursuant to 310 IAC 0.6-1-9.
FINDINGS OF FACT
1. On May 16, 1994, the Indiana White River State Park Development Commission filed its "Objection to Petition for Stay of Effectiveness" to be filed in this proceeding. The parties agreed during a prehearing conference held on May 17 that the pleading should be considered as a 'motion to dismiss". The parties also agreed to a briefing schedule and that the Administrative Law Judge should rule upon the motion by May 27, 1994. The parties were provided until June 3, 1994 to file any objections to the nonfinal order, and on that date, Richard J. Kandrac filed the "Claimant's Objection to the Entry of Final Order Affirming the Substance of the Administrative Law Judge's Nonfinal Order". The parties appeared on June 6 to present arguments with respect to the nonfinal order and Kandrac's objections, and being duly advised, the Secretary of the Natural Resources Commission finds that a final order of dismissal should now be entered.
2. The White River State Park Development Commission ("Park Commission") is a state agency, holding fee simple title to the property generally described as the Acme-Evans Mill, including the grain and milling silos (collectively, the "Acme-Evans Complex"). On July 13, 1988, the Indiana Historic Preservation Review Board ("Review Board") entered the following order which indicated it became effective on August 1, 1988: With the exception of the Superintendent's Building at 710 West Washington Street, the property known as the Acme-Evans Milling Complex is not eligible for the State Register of Historic Sites and Structures. Removal of all of these structures, except 710 West Washington, will not require a certificate of approval under IC 14-3-3.4-9. This order is referred to as the "1988 Order".
3. On January 14, 1994, Richard J. Kandrac ("Kandrac") filed a request seeking to have the Acme-Evans Complex listed as a state historic district. The Park Commission opposed the request on the grounds of res judicata, collateral estoppel, and the merits. On April 21, 1994, the Review Board issued its decision "to let stand the determination of the Review Board at its July 13, 1988 meeting that the Indianapolis Acme-Evans Complex, with the exception of 710 West Washington Street building, was not eligible for the State Register." This order is referred to as the "1994 Order".
4. On its face, the 1994 Order was to become "effective" on May 9, 1994 unless an aggrieved person filed a petition for review and a petition for stay of effectiveness pursuant to IC 4-21.5 (the "Administrative Orders and Procedures Act" or "AOPA"). On May 9, Kandrac took timely review causing this proceeding to be initiated.
5. A threshold issue is posed by the relationship between the 1988 Order and the 1994 Order. Reduced to basic terms, the question is presented whether the Review Board has jurisdiction to modify the 1988 Order.[FOOTNOTE 1] The question is one of first impression under IC 14-3-3.4 and has broad legal significance, not only as to the parties, but as to the public to rely upon Review Board determinations.
6. The Review Board is an autonomous agency established within the Department of Natural Resources. IC 14-3-3.4-12. Actions by the Review Board are subject to IC 4-21.5. The Natural Resources Commission is the "ultimate authority" for actions taken by the Review Board which are subject to the AOPA. See, generally,
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IC 14-3-3-21, IC 14-3-3-24, and IC 14-3-3-25. See, also, Metamora H2O-9 Committee v. DNR and Whiatwater Valley Railroad, 6 CADDNAR 109 (1993) and Save The Tee Pee Committee v. DNR, 5 CADDNAR 1 (1987). The Natural Resources Commission has adopted a rule, in multiple sections, to assist in administration of the AOPA as codified at 310 IAC 0.6-1. Reference to the Review Board is contained, for example, in 310 IAC 0.6-1-18.[FOOTNOTE 2]
7. The AOPA governs the issuance and review of an agency action, particularly those constituting "orders". An "agency action" includes the "whole or a part of an order." IC 4-21.5-1-4. An "order" is an "agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons. The term includes a license." IC 4-21.5-1-9.
8. The 1988 Order was an "order" within the AOPA. Particularly, the 1988 Order determined the eligibility of the Acme-Evans Complex for listing on the state register. By determining the Acme-Evans Complex (other than the 710 West Washington Street building) was ineligible, the Park Commission was relieved of the responsibilities imposed by IC 14-3-3.4-9. No "certificate of approval" was required to alter, demolish, or remove buildings within the complex.
9. The Review Board acknowledged that the 1988 order was a "determination" subject to administrative review "under IC 4-21.5-35[FOOTNOTE 3] an affected person who is aggrieved by issuance of the determination may file a written request for administrative review . . . by August 1, 1988" from the State Historic Preservation Officer. ALJ Exhibit A (Prehearing Stipulation). No petition for review or stay of the 1988 Order was received. Affidavit of Frank D. Hurdis, Jr. dated may 20, 1994 and attached as Exhibit D to the "Memorandum in Support of (Review) Board's objection to Petition for Stay of Effectiveness".
10. The 1988 Order was mailed July 15, 1988 and became effective, both under the AOPA and under the terms of the 1988 Order, in early August 1988. IC 4-21.5-3-5(f) and IC 4-21.5-3-2(e). ALJ Exhibit A (Prehearing Stipulation). To grant Kandrac the relief he seeks, the Review Board must emasculate the 1988 Order.
11. "The problem of an administrative agency's continuing authority to change its orders is a troublesome one." Dale Bland Trucking v. Calcar Quarries, 1981 Ind. App., 417 N.E.2d 1157, 1159. After reflecting upon the dilemma, however, the Indiana Court of Appeals reasoned at page 1160: "[T]he eventual finality of the administrative decision is indispensable to the interests of fair and impartial regulation. Certainly, public policy demands that at some point in time every proceeding whether administrative or judicial become final and dispositive so that both the parties and the public may rely thereon. While the inherent power of an administrative agency to reopen and reconsider a final decision has been recognized in other jurisdictions, that power has never been deemed interminable. Rather, the courts have evinced a concern that such authority be invoked within some reasonable period of time. A reasonable period has been found to be at least co-extensive with the time allowed by the controlling statute for review. . . . We find our sister states' interpretation of 'reasonable time' as co-extensive with the time of review to be both logical and practicable.
12. The reasoning in Dale Bland Trucking was relatively new when the Administrative Adjudication Law Recodification and Revision Commission began its development of the AOPA in 1985.[FOOTNOTE 4] Public Law 18-1986 established the AOPA and included IC 4-21.5-3-31 which described a time frame for agency modification of orders. Section 31 is harmonious with Dale Bland Trucking and provides in subsection (a):
(a) An agency has jurisdiction to modify a final order under this section before the earlier of the following:
(1) Thirty (30) days after the agency has served the final order under section 27, 29, or 30 of this chapter.
(2) Another agency assumes jurisdiction over the final order under section 30 of this chapter.
(3) A court assumes jurisdiction over the final order under IC 4-21.5-5.
The period for taking judicial review under the AOPA is ordinarily 30 days. IC 4-21.5-5-5. The maximum period provided in section 31 to seek modification of the final agency order is also 30 days.
13. Section 31 is not directly applicable to the instant case because no party took administrative review of the 1988 Order. The 1988 Order became a final determination pursuant to IC 4-21.5-3-5 and not pursuant to IC 4-21.5-3-27, 29, or 30. The result would be incongruous at best, however, if an order could not be modified more than 30 days after final determination following administrative review, but if no one takes
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administrative review, a final determination is still subject to modification six years later. To reach this result, Dale Bland Trucking must be rejected and the spirit of IC 4-21.5-3-31 ignored.
14. Recently, the Indiana Court of Appeals revisited the ability of an agency to modify its final orders in Adkins v. City of Tell City, 1993 Ind. App., 625 N.E.2d 1298. The court reflected that "[g]enerally, administrative agencies may not rescind their final decisions unless some statute grants such power." The authority set forth in IC 4-21.5-3-31 was recognized as a statute granting a limited ability to an agency to rescind a final order. Adkins at 1302.
15. The court in Adkins did recognize that the general inability of an agency to modify or rescind its prior final orders has limited exceptions. An agency could rectify errors of procedural law. In Adkins, the city had failed to follow proper procedures in terminating an employee, and the court concluded that the city could properly rescind its termination order and accord the employee a hearing. Adkins at 1302 and 1103.
16. Similarly, Dale Bland Trucking had recognized an exception to the general rule where an agency sought to correct clerical errors or decisions which were made due to inadvertence or mistake. Citing American Trucking Associations, Inc. v. Frisco Transportation Co., (1958), 358 U.S. 133, 79 S.Ct. 170, 2 L.Ed. 172, the Court of Appeals reflected that the "court in American Trucking was careful to point out, however, that the power to correct clerical or inadvertent errors should not be used as a pretext to change previous decisions when the wisdom of the past decisions appears doubtful in light of current policies". Dale Bland Trucking at 1159.
17. The instant case does not fall under the rubric of either the exception set forth in Adkins or the exception set forth in Dale Bland Trucking. The Review Board followed the mandates of the ACPA when the 1989 order was issued, so there is no need to correct an error of procedural law. Neither does Kandrac request seek to correct a clerical error or one of inadvertence or mistake. The request seeks to set aside a previous decision by the Review Board, which appears to Kandrac, at least, to have been unwise.[FOOTNOTE 5]
18. In light of both the case law and ACPA, the Review Board lacked-jurisdiction to consider the request by Kandrac. The 1988 Order was a final order or determination by the Review Board, and the time for its modification or rescission has long-since passed. The 1994 Order is void for lack of jurisdiction and must be vacated. The 1988 Order controls, and this proceeding must be dismissed.
FOOTNOTES
1. As this litigation has moved forward, Kandrac has sought to factually disassociate the 1988 order from the 1994 Order. A review of the record does not reflect a distinction so pristine as Kandrac would present, but taken in terms most favorable to him, the distinction is one between designation as an historic site or as an historic district. The Review Board noted in oral argument that the criteria for the two designations are the same; and perhaps even more importantly to the legal analysis set forth below, the consequences to the Park Commission would be equivalent. As applicable to this litigation, the 1994 Order must properly be viewed as an attempt to revisit and reverse the 1988 Order. Kandrac may have found a new saddle but with the same horse.
2. The relationship between the Review Board and the Natural Resources Commission under IC 14-3-3.4 and the AOPA is the same as between the Department of Natural Resources and the Natural Resources commission under the AOPA (for matters other than IC 14-3-3.2). Here, the Review Board is a party to an adjudicatory proceeding with separate legal standing from the Natural Resources Commission but subject to its "ultimate authority". Subsequent to amendments by the Indiana General Assembly in 1990 and 1991, the Natural Resources Commission has become "almost entirely a fact-finding agency; it appoints ALJs (administrative law judges] and conducts AOPA hearings .... The AOPA requires all ALJs to be neutral fact-finders with no ties to a party agency." Peabody Coal v. Indiana DNR, 1994 Ind. App., 629 N.E.2d 925. Those same amendments recognized that the Review Board rather than the Director of the Department of Natural Resources made determinations under IC 14-3-3.4 but did nothing to abridge the "ultimate authority" of the Natural Resources Commission. See, particularly, IC 14-3-3-21(a) and IC 14-3-3-24(a).
3. Subsection 5(a) lists six situations to which its provisions apply. Among these are most licensing actions (subdivision (1)) and determinations of status (subdivision (5)). With the very broad concept of "license" set forth in
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IC 4-21.5-1-8, the applicable portion of IC 4-21.5-3-5 may arguably be subsection (a)(1). A more conventional interpretation is probably that subsection (a)(5) applies since the 1988 Order determined the "status" of the Acme-Evans Complex under IC 14-3-3.4-9. In either event, the interpretation by the Review Board that IC 4-21.5-3-5 controlled appears to be legally supported.
4. For a discussion of the Administrative Adjudication Law Recodification and Revision Commission and the development of the AOPA, see K. Lucas, Administrative Adjudication-Revised and Recodified, 20 Ind. L. Rev. 1 (1987).
5. During oral argument on June 6, Kandrac expressed regrets that this proceeding was being viewed in a legal context and not as a kind of referendum on the historic worth of the Acme Evans Complex. A determination of eligibility for the state register is a legal process which must properly consider the rights of all the parties, not the least of which are those of the Park Commission as the state agency charged with the administration of the site. To be noted, however, is that the 1988 Order does not require the Park Commission to demolish the Acme Evans Complex. Although the legal ramifications of the 1988 Order cannot be ignored, an eligibility determination by the Review Board is not a prerequisite to preservation of the Acme Evans Complex, if preservation is the public will.