ORDER
[NOTE: JUDICIAL REVIEW SOUGHT IN THE MARION COUNTY SUPERIOR COURT (49-D079711-CP-1649). ORDER OF DISMISSAL WITH PREJUDICE SIGNED ON JANUARY 22, 1998 BY HONORABLE GERALD S. ZORE, JUDGE, MARION COUNTY SUPERIOR COURT NO. 7.]
The petition to reconsider and rescind approval of TCCD's amended plan is hereby dismissed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is a state agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 14-11, IC 14-1-2 and IC 14-33 apply to these proceedings.
3. The DNR is the state agency responsible for the issuance of licenses under IC 14-11-3-1(b).
4. The Natural Resources Commission ("NRC") is the "ultimate authority" for licensing determinations made by the DNR director or his designee under IC 14-10-2-3.
5. On July 23, 1997, Eastern Morgan County Rural Water Co., Inc. ("EMCRW"), filed a petition for review of the Department of Natural Resources ("DNR") approval of the Tri-County Conservancy District's ("TCCD")'s amended district plan. On July 29, 1997, EMCRW filed a motion for expedited review by the NRC. The Tri-County Conservancy District filed a motion to dismiss EMCRW's petition on September 12, 1997.
6. The DNR exercises its authority to approve or disapprove a district plan through its delegation of that authority to the Director of the Division of Water. See "Procedural Guidelines for the Establishment, Development, and Dissolution of Conservancy Districts", Natural Resources Commission Information Bulletin #12, 19 Ind. Reg., 2801 (June 1, 1996).
7. The DNR approved the Tri-County Conservancy District Amended Plan on June 9, 1997.
8. IC 14-13, (the conservancy district chapter), does not address review of the "approval" process at the agency level. However, administrative reviews are generally addressed in IC 4-21.5, the Administrative Orders and Procedures Act.
9. The DNR approval or disapproval of the district plan is subject to administrative review under IC 4-21.5-3-7(a), which provides in pertinent part:
"...To qualify for review of any other order described in sections 4, 5 or 6 of this chapter, a person must petition for review in writing that does the following:
...(3) Is filed
(A) if an order described in sections 4, 5, 6(a)(1) or 6(a)(2) of this chapter, with the ultimate authority for the agency issuing the order within fifteen (15) days after the person is
given notice of the order or any longer period set by statute;..."
10. An additional three (3) days may be added to the petitioning period if notice is served via US mail, thereby allowing petitioners eighteen (18) days to petition for administrative review. See Ind. Code 4-21.5-3-2(e).
11. Exhibit 1 of the department's brief in support of summary judgment indicates notice of approval of the amended district plan was issued on June 11, 1997. Therefore, pursuant to IC 4-21.5-3-7 and IC 4-21.5-3-2, any petition for administrative review would be timely if filed on or before June 30, 1997.
12. EMCRW's petition for review of the approved amended district plan was filed on July 23, 1997, more than forty-two (42) days after the DNR's issuance of approval of the amended district plan.
13. Prior to its filing of administrative review, on July 10, 1997, EMCRW requested notification from the department of DNR and NRC actions taken with respect to the amended district plan. See Exhibit B of the department's brief.
14. The DNR is required to provide notice to "each person who has provided a written request for notification" of an agency order, "if the request is delivered to the agency at least seven (7) days before" the order is made. See IC 4-21.5-3-5(b)(4)(B).
15. EMCRW's July 10, 1997 request for notification was made after the DNR's June 9, 1997 approval of the
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amended district plan.
16. EMCRW asserts that it should have received actual notice of district plan approval, yet, provides little support for this assertion. Pursuant to IC 4-21.5-3-5(f), the department must make "a good faith effort to identify and notify" persons who fall under IC 4-21.5-3-5(b)(5) and IC 4-21.5-3-5(b)(6). The department supports this requirement as shown in its June 11, 1997 Notice of Approval in Exhibit 1of its brief. No evidence in the record supports EMCRW's position that its interest was "apparent on the face" of the plan amendment. Therefore, EMCRW's argument is not persuasive.
17. The record shows that EMCRW had notice on or before June 26, 1997[FOOTNOTE 1], whether that notice was actual or constructive, of EMCRW's district plan amendment approval. That notice was sufficient to prompt EMCRW to seek relief in the Morgan County Circuit Court in the form of a request for restraining order and injunction to restrain TCCD from furthering any plan to provide water supply in the district area.
18. EMCRW's petition in the Morgan County Circuit Court asserts that TCCD fraudulently failed to disclose to the court the existence of and interest of EMCRW to provide water supply in the area of the district plan Yet, EMCRW did not request actual notice of DNR and NRC actions until July 10, 1997.
19. This June 26, 1997 filing by EMCRW contains an attachment, a notice of the public hearing to consider bonding issues in regard to the TCCD district plan improvements. Significantly, this notice clearly provides the time and date for the public hearing, June 27, 1997, and indicates those matters of improvement under the district plan, including the provisions of water supply. See Exhibit E to the department's brief.
20. Counsel for EMCRW admits to attending the public hearing of June 27, 1997 regarding the TCCD water supply bonding issues. See Exhibit D of EMCRW's brief in support, enttitled, Affidavit of Donn Wray. This tribunal is hard pressed to believe EMCRW did not have knowledge of the approved district plan amendment at that time.
21. EMCRW fails to show diligence in protecting its interest by seeking administrative review in a timely manner with this tribunal.
22. As EMCRW's petition for administrative review is untimely filed, the Tri-County Conservancy District motion to dismiss should be granted.
FOOTNOTE
1 On June 26, 1997, EMCRW filed a "Verified Motion for Emergency Court Proceeding, For Temporary Restraining Order and for Temporary Injunction" against Cedar Run Ltd. and Tri-County Conservancy District, in the Morgan County Circuit Court. The cause number is 55C01-9705-CP-172.