[NOTE:ON FEBRUARY 16, 1995, DNR SOUGHT JUDICIAL REVIEW IN THE PIKE CIRCUIT COURT (CAUSE NUMBER 63COl-9502-CP-36). ON OCTOBER 29, 1998, HONORABLE MARVIN D. STRATTON,PIKE CIRCUIT COURT, ENTERED ORDER OF DISMISSAL. PIKE CIRCUIT COURT ORDER OF DISMISSAL FOLLOWS ADMINISTRATIVE FINDINGS OF FACT AND ORDER.]
The May 16, 1994 decision of the Department of Natural Resources to grant bond release on the S-126 permit area is affirmed.
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 responsible for the regulation of surface coal mining operations.
3. IC 421.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
4. The administrative law judge is the ultimate authority within the meaning of IC 421.5 with respect to DNR decisions on bond releases under the surface mining act, IC 4-21.5 ("I-SMCRA").
5. At all times relevant to these proceedings, Solar Sources, Inc. ("Solar") held surface coal mine permit S-126 issued by the DNR which allows the surface mining of coal at the Prides Creek Mine in Pike County, Indiana.
6. On January 28, 1994, duly authorized representatives of the DNR conducted an inspection of the S-126 permit area for the purpose of deciding whether or not to release portions of the reclamation bond pursuant to IC 13-4.1-6-7 and 310 IAC 12-4-16.
7. Mr. Bell ("Bell") accompanied the inspector during the inspection.
8. The inspected property is solely owned by Solar.
9. On May 16, 1994, the DNR published a determination that the area in question qualified for a 60% bond release pursuant to 310 IAC 124-16.
10. On or about June 15, 1994, Bell filed a petition for administrative review pursuant to IC 4-21.5.
11. Bell's sole ground for objecting to the 60% bond release involved the failure of Solar to regrade a portion of the reclaimed property to its approximate original contour ("AOC") as required by IC 13-4.1.
12. The DNR filed a pleading captioned as a motion to dismiss on October 7, 1994.
13. The DNR's motion contains affidavits and exhibits which were not included in the original complaint, and therefore, pursuant to TR 56, it will be considered as a motion for summary judgment.
14. Bell also filed a motion for summary judgment (on October 4, 1994) which relies on the federal surface mining act (P.L., 9587, "F-SMCRA") which states that an operator shall restore the property to AOC.
15. If that were the only issue involved in this case, Bell would have raised an issue which would require a factual hearing to decide whether or not the regrading had produced the AOC in the area in question near Bell's property.
16. 310 IAC 12-4-16(c) requires the grading to take place in accordance with Solar's approved reclamation plan.
17. Unfortunately for Bell, when the 8-126 permit was approved (in 1983) it included a reclamation plan that provided for a significant post-mining increased elevation in the area in question. see Exhibits C and D attached to the DNR's motions the existence of which is not contested by Bell.
18. IC 4-21.5-3-23 allows an administrative law judge to grant summary judgment any time there are no genuine issues in dispute.
19. In this matter, it is undisputed that the S-126 approved more than ten years ago required Solar to place a mound in the area under dispute.
20. It is also undisputed that Solar did reclaim this portion of the S-126 permit area by creating the mound.
21. As stated by Administrative Law Judge Lucas in Kandrac v. Historic Preservation Review Board and White River Park Development Commission, 7 Caddnar 47 (1994) an "order" of an administrative agency becomes final after the statutory time for taking administrative review has run and may not be collaterally attacked.
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22. Pursuant to IC 4-21.5-1-8 and IC 4-21.5-1-9, the 1983 decision of the DNR to issue the 8-126 permit with the current reclamation plan was an "order".
23. The "order" was not challenged, and thus became a final order.
24. The issue raised by Bell amounts to a collateral attack on the 1983 permitting decision, and therefore cannot be considered.
25. The undisputed facts show Solar regraded the area near Bell's property in accordance with their approved reclamation plan, and therefore, is entitled to the 60% bond release as approved by the DNR.
26. In the DNR's motion, it raises the argument that, since Bell's complaint deals with the aesthetics of the property, he has asserted no valid legal interest.
27. Bell is an adjoining land owner to the permit.
28. As such, Bell is required to be noticed by solar of all pending bond release petitions and has a right to participate in the bond release inspection. See 310 IAC 12-4-16.
29. Solar owns all of the property involved in the S-126 bond release application.
30. The practical effect of the DNR's position is that no person, governmental entity, environmental group, etc. would have the right to challenge a bond release approval on the S-126 permit unless they allege damage to their property.
31. Any adjoining property owner (or literally anyone else) has the right under ISMCRA and F-SMCRA to demand that the reclamation conditions of I-SMCRA and the permit be met before bond is released. If the B-126 permit had not included an approved reclamation plan creating the hill, Bell would have raised a valid issue and be entitled to pursue it even though his complaint involved the view from his property rather than drainage control or some other physical effect on his property.[FOOTNOTE 1].
FOOTNOTE
1. The Natural Resources Commission, as the ultimate authority for the DNR in permitting matters, will be presented with the opportunity to make a precedent setting ruling on "standing" under the Surface Mining Act within the next 60 days in the case of Hoosier Environmental Council v. DNR and Solar Sources, Inc., administrative cause number 94-119R. Any language in this decision as to standing which conflicts with the Commission's ruling will be considered as reversed and of no force and effect.
PIKE CIRCUIT COURT ORDER OF DISMISSAL
"This case having been set for a hearing
pursuant to Trial Rule 41-E, the Court now finds there has been no good cause shown why this
case should not be dismissed. IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED
by the Court that this case be dismissed, without prejudice, and with costs to plaintiff." Signed
October 29, 1998 by Honorable Marvin D. Stratton, Pike Circuit Court.