In the alternative, the motion to dismiss filed by the department is granted, and the commission orders the subject matter of the petition for adoption of a rule to exempt Silver Lake from the ten mile per hour speed limit placed on the agenda of a future commission meeting for the purpose of discussion and vote on preliminary adoption.
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 regulating the use of public freshwater lakes in Indiana.
3. Silver Lake is a public freshwater lake in Kosciusko County, Indiana.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to decisions of the DNR which affect public freshwater lakes.
5. IC 4-21.5, IC 14-15, and 310 IAC 2 apply to these proceedings.
6. Silver Lake, being under 300 acres in area, meets the definition of a "small lake" and therefore by statute has a speed limit of ten miles per hour. See IC 14-15-3-10 and IC 14-15-3-1.
7. Silver Lake also meets the exemption size (over 70 acres) of IC 14-15-3-11, thus the NRC may exempt the lake from the ten miles per hour limit by adopting a rule pursuant to IC 4-22. See IC 14-15-3-11.
8. 310 IAC 32 contains a number of rules adopted by the NRC at various times, which exempt specific small lakes from the ten
miles per hour limit during certain hours or days of the week.
9. In March of 1995, Max Anglin ("Anglin") and other interested parties petitioned the DNR to propose and enact a rule pursuant to IC 14-15-3-11 to amend 310 IAC 2-32 to include Silver Lake as a lake exempted from the ten miles per hour speed limit.
10. On October 13, 1996, the DNR decided not to pursue a rule amendment for Silver Lake.
11. Anglin filed a petition for administrative review of this decision on November 3, 1996.
12. Anglin contends that by making findings on the criteria in IC 14-15-3-11 dealing with unreasonable harm to fish, wildlife, etc. and denying the petition, the DNR has issued an "order" within the meaning of IC 4-21.5.
13. The Department contends that a decision not to propose or adopt a rule is not reviewable under IC 4-21.5.
14. IC 4-21.5-1-4 ("Agency Action") and IC 4-21.5-1-9 ("order") broadly define those terms and include the "failure to act" as an agency action.
15. However, not all agency decisions, are subject to review under IC 4-21.5.
16. In particular, IC 4-22-2-3 incorporates the "agency action" definition found in IC 4-21.5-1-4 and then specifically exempts "rule making action" from being considered as an agency action.
17. The motion to dismiss filed by the DNR should be granted as IC 4-22 exemps rule making from being a subject of a petition for administrative review filed pursuant to IC 4-21.5.
18. However, as a matter of policy, the NRC might wish to take a somewhat different course of action with respect to some or all denied petitions for rule making.
19. In general, the NRC is the "legislative body" for DNR matters and specifically, IC 14-15-3-11 places the exclusive and discretionary responsibility to act on small lake speed limit exemptions on the NRC.
20. An alternative which the NRC might wish to apply here is to order the petition to adopt the proposed rule to exempt Silver Lake from the statutory speed limits placed on the NRC agenda at a future meeting for proposed preliminary adoption and allow both proponents and opponents (including the DNR) to speak on the matter. The NRC would then either vote in favor of preliminary adoption thereby initiating the rule making process or vote against preliminary adoption thereby placing the NRC seal of approval on the DNR action to deny the petition.