Content-Type: text/html 95-227r.v7.html

CADDNAR


[CITE: Town of Hymera, et al. v. Shand Mining, et al., 7 CADDNAR 80 (1996)]

[VOLUME 7, PAGE 80]

Cause #: 95-227R
Caption: Town of Hymera, et al. v. Shand Mining, et al
Administrative Law Judge: Lucas
Attorneys: Shostak and Goodwin; Wilcox; Kelley, Jr.
Date: January 16, 1996

ORDER

. . . . [T]he Administrative Law Judge, acting as the ultimate authority for the Department of Natural Resources, now enters a final order of dismissal in this proceeding. . . . The reasons for entering the final order are as follows:

1. The instant proceeding was initiated under IC 4-21.5 and 310 IAC 0.6-1 upon separate timely petitions for attorney fees by Max E. Goodwin and Robert J. Shostak on behalf of the Town of Hymera, Donald Marshall, Adlynn Marshall, and Gary Enstrom. Those attorney fees were claimed pursuant to legal representation provided in a proceeding before the natural resources commission (the "Commission") entitled Town of Hymera, Donald Marshall, Adlynn Marshall, and Gary Enstrom v. Department of Natural Resources, Shand Mining, Inc., and Northern Coal Company, Inc., Administrative Cause Number 94-048R.

2. The instant proceeding is founded most particularly upon 310 IAC 0.6-1-13 which governs the award of litigation costs and expenses, including attorney fees, in several programs administered by the department of natural resources (the "Department") and for which the Commission is the ultimate authority. Among these programs is the Indiana Surface Mining Control and Reclamation Act ("I-SMCRA") program, set forth primarily at IC 13-4.1 [since recodified as IC 14- 34].[FOOTNOTE i] The I-SMCRA program was at issue in Administrative Cause Number 94-048R and is the subject of the instant proceeding.

3. As provided in pertinent part in 310 IAC 0.6-1-13:

Sec. 13. (a) This section governs an award of costs and expenses reasonably incurred, including attorney fees, under IC 13-4.1-11-9 [recodified as IC 14-34-15-10]. . . .
(d) Appropriate costs and expenses, including attorney fees, may be awarded under IC 13-4.1-11-9 [recodified as IC 14-34-15-10] only as follows:

(1) To any person from the permittee, if the person initiates or participates in an administrative proceeding reviewing enforcement and a finding is made by the administrative law judge or the commission that:
(A) a violation of IC 13-4.1 [recodified as IC 14-34], 310 IAC 12, or [a] permit has occurred or that an imminent hazard existed; and
(B) the person made a substantial contribution to the full and fair determination of the issues. However, a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding.

(2) To a person from the [D]epartment other than to a permittee or the permittee's authorized representative, who initiates or participates in a proceeding and who prevails in whole or in part, achieving at least some degree of success on the merits, upon a finding that the person made a substantial contribution to a full and fair determination of the issues. . . . .

4. The final disposition of Administrative Cause Number 94-048R followed an atypical path to a dismissal and is noteworthy because it was rendered at the request, or with the acquiescence, of all the parties. A nonfinal order of dismissal had been rendered by the Administrative Law Judge on May 25, 1995, to which none of the parties objected, prior to the affirmation of the nonfinal order by the Commission on June 19,1995. As stated by the Administrative Law Judge on May 25: On March 14, 1995, Shand Mining, Inc. and Northern Coal Company, Inc. moved for a voluntary dismissal of. . . [Administrative Cause Number 94-048R] "for the reason that they have determined that they no longer wish to pursue this matter." No objection was filed to their motion. On May 19, 1995, the Department . . . filed a "Motion to Dismiss." The Department's motion demonstrated that Shand's interest in the subject permit has been transferred to Black Beauty Coal Company. In correspondence dated March 22, 1995, a copy of which was attached to the Department's motion, Black Beauty Coal Company indicated to the Division of Reclamation of the Department that it wished to withdraw the subject permit application. . . . Being duly advised, the Administrative Law Judge now finds that . . . [Administrative Cause Number 94-048R] has been mooted, and that a nonfinal order of dismissal should be entered.

[VOLUME 7, PAGE 81]

5. In the "Brief of Shand Mining, Inc., Northern Coal Company, Inc., and Black Beauty Coal Company in Opposition to Claimants' Motion to Amend Fee Petition"[FOOTNOTE ii] filed in this proceeding on November 6, 1995, these parties urge that litigation expenses, including attorney fees, are only available to a citizen claimant (in contrast to the Department) for enforcement actions governed by IC 13-4.1-11 [now IC 14-34-15] and not for licensing actions[FOOTNOTE iii] such as the one at issue in Administrative Cause Number 94-048R. The argument by the permittees is persuasive. 310 IAC 0.6-1-13(d)(1) is unambiguous in limiting relief to an enforcement action; this provision denies relief to the Town of Hymera, Donald Marshall, Adlynn Marshall, Gary Enstrom, or their attorneys with respect to Shand Mining, Inc., Northern Coal Company, Inc., and Black Beauty Coal Company in the instant proceeding.

6. A petition for litigation expenses, including attorney fees, by a citizen claimant against the Department is not limited to enforcement actions. There must be a showing, however, that the petitioner achieved "at least some degree of success on the merits," upon a finding that the petitioner made a "substantial contribution to a full and fair determination of the issues." No basis exists upon which these findings can be made in the instant proceeding. Administrative Cause Number 94-048R was not determined on the merits but was found to be moot[FOOTNOTE iv] when a successor to the subject permit decided to abandon the permit application. No determination of the issues was rendered in Administrative Cause Number 94-048R. No factual basis exists upon which litigation fees could be awarded in favor of the petitioners and against the Department in the instant action.

FOOTNOTES

i. IC 13-4.1 and most other statutes administered by the Department were recodified by P.L. 1, 1995. The recodification became effective on July 1, 1995 and does not affect any rights or liabilities accrued before that date. IC 14-8-3-4(a). Additionally, the recodification is considered a recodification of prior natural resources law (both statutes and rules), and the application of the recodification is to be "substantively identical to the prior natural resources law." IC 14-8-3-5. Because the events at issue in the instant proceeding were completed before July 1, 1995, primary references in this order are to statutory references prior to recodification. The result would, however, have been identical subsequent to recodification.

ii. Although on its face apparently directed to whether the claimants should be allowed to amend their petitions for attorney fees, the real thrust of this brief and the accompanying motion was to seek an involuntary dismissal. That consequence was pointed out by the claimants in their letter of November 15, 1995 in which they sought 30 additional days to respond to "brief of Shand Mining, Inc., et al., addressed to the merits of the fee petition rather than the motion to amend.". As a result, a "Supplementation of Briefing Schedule" was entered in which the claimants were provided until December 15, 1995 to file any additional response. As pointed out by the permittees in a letter dated January 10, 1996, no additional response has been filed by the claimants.

iii. IC 4-21.5 (sometimes called the "Administrative Orders and Procedures Act" or "AOPA") also clearly distinguishes between administrative proceedings which provide for sanctioning or enforcement, on the one hand, and those which provide for licensing on the other. The enforcement or sanctioning provisions are those described by IC 4-21.5-3-6 and IC 4-21.5-3-8. In order to secure relief against a permittee under I-SMCRA, a citizen claimant must demonstrate the proceeding in issue falls within one of these statutory sections. Licensing is governed by IC 4-21.5-3-4 and IC 4-21.5-3-5. Administrative Cause Number 94-048R was a licensing action (governed by IC 4-21.5-3-5), and the nature of that proceeding is fatal to the petition for attorney fees as applied to the permittees in the instant proceeding.

[VOLUME 7, PAGE 82]

iv. Disposing of a proceeding upon mootness may not be fatal to every petition for attorney fees under 310 IAC 0.6-1-13. A case history might be imagined where mootness followed a partial but significant disposition of issues. That history is not presented in the instant proceeding, and the resolution of its consequences is left for the proper case. Fatal to the petition is that the record is hostile to any finding that the disposition of Administrative Cause Number 94-048R was made upon the merits. Similarly, there was no determination of the issues.