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Cause #97-181W
Caption: Hoosier Environmental Council v. RDI/Caesar's River boat Casino, LLC, and DNR
Administrative Law Judge: Lucas
Attorneys: Harris; Czaijka, Mumford, Meier; Nardi, Stefanovich
Date: August 6, 1998
ORDER
Permit FW-17,793 issued by the Department of Natural Resources in favor of RDI/Caesar's River boat Casino, LLC is affirmed. In addition, the cruise route, traversing approximately 0.1% of the mussel bed, is made a condition of the permit. The cruise route may be modified only upon notice under IC 4-21.5 to the parties as an amended permit.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Administrative Orders and Procedures Act and Standing
1. This proceeding is controlled by IC 4-21.5 (the "administrative orders and procedures act" or"AOPA") and rules adopted by the natural resources commission (the "Commission") to assist in the implementation of the AOPA. Pursuant to 312 IAC 3-1-1(b), an affected person who is aggrieved by a determination of the department of natural resources (the "Department") may apply for administrative review of the determination under IC 4-21.5 and 312 IAC 3.
2. Persons entitled to notice under the AOPA are identified in IC 4-21.5-3-5(b). This subsection provides in pertinent part:
Sec. 5(b) When an agency issues an order. . . , the agency shall give a written notice of the order to the following persons:
(1) Each person to whom the order is specifically directed.
(2) Each person to whom the law requires notice to be given.
(3) Each competitor who has applied to the agency for a mutually exclusive
license. . . .
(4) Each person who has provided the agency with a written request for notification of the order, if the request:
(A) describes the subject of the order with reasonable particularity; and
(B) is delivered to the agency at least seven (7) days before the day that notice is given
under this section.
(5) Each person who has a substantial and direct proprietary interest in the subject of the order.
(6) Each person who absence as a party in the proceeding concerning the order would deny another party relief in the proceeding or who claims an interest related to the subject of the order and is so situated that the disposition of the matter, in the person's absence, may:
(A) as a practical matter impair or impede the person's ability to protect that interest; or
(B) leave any other person who is a party to a proceeding concerning the order subject to a substantial risk of incurring multiple or otherwise inconsistent obligations by reason of the person's claimed interest. . . .
3. Statutory requirements for a petition for administrative review are set forth in IC 4-21.5-3-7. This section provides in pertinent part:
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Sec. 7. (a) . . . To qualify for review of any other order described in section 4, 5, or 6 of this chapter, a person must petition for review in a writing that does the following:
(1) States facts demonstrating that
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law .
. . . .
(3) Is filed:
(A) if an order described in section 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; . . .
4. "Standing" is primarily a judicial doctrine, and it focuses on "whether the complaining party is the proper person to invoke the court's power." Pence v. State, 652 N.E.2d 486, 488 (Ind.1995). Standing serves to limit jurisdiction over a particular case, for a court may only resolve real controversies in which the complaining party has a personal stake in the outcome of the lawsuit and has sustained, or is in immediate danger of sustaining, direct injury as a result of the complained conduct. Musgrave v. State Bd. Of Tax Comm'rs, 658 N.E.2d 135, 138 (Ind. Tax 1995). Pence v. State cited previously.
5. The issue of standing is properly raised through a T.R. 12(B)(6) motion for a party's lack of standing will deprive a court of jurisdiction over a particular case. Musgrave cited previously. Pursuant to 312 IAC 3-1-9(b)(3), the Commission has delegated to its administrative law judges the authority to dismiss a petition if the "person seeking administrative review does not qualify for review under IC 4-21.5-3-7."
6. The Department and RDI/Caesar's Riverboat Casino, LLC (Caesar's) contested the standing of the Hoosier Environmental Council ("HEC"), Save Our Rivers and Don Mottley ("SOR"), and Earl Becker and Protect Our River Environment ("PORE") [FOOTNOTE 1] in two basic ways: First, they attacked the adequacy of the respective petitions for administrative review. Second, they urged the nature of the interests asserted by the Claimants are insufficient to provide them individually with a legal basis for seeking review. These matters will be separately explored, but there is also a preliminary item which must be addressed.
5. [sic] The decisions cited by the Respondents are tests applied on judicial review. Currently for consideration is administrative review by the Commission of a determination by the Department. A discussion of standing for judicial review appears pertinent to a discussion of administrative review, since the scope of administrative review can reasonably be no less than of judicial review. The opposite does not follow.
6. [sic] Whether a person has standing to seek administrative review is an issue separate and apart from whether the person may take judicial review. "These two types of standing are not necessarily coextensive; for example, a party conceivably could have standing to participate in an administrative proceeding but lack standing to litigate." Selmi and Manaster, State Environmental Law, 11.02[5] (1997), citing Medical Waste Assocs., Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612 A.2d 241, 249 (1992).
7. This dichotomy results because the functions of administrative review and judicial review differ. On administrative review, an agency must develop a full and complete record. An administrative law judge must make specific findings to crystallize the agency's analysis of evidence so as to provide a court with the opportunity for intelligent judicial review of the agency decision. Indiana Dept. of Natural Resources v. United Refuse Co., 598 N.E.2d 603, (1992 Ind. App.), decision adopted in part
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and vacated in part at 615 N.E.2d 100. The administrative law judge conducts a hearing de novo, weighing evidence and reaching conclusions, rather than deferring to the initial determination by the agency. Indiana Dept. of Natural Resources v. United Refuse Co., 615 N.E.2d 100 (1993 Ind.).
8. Administrative review authorities evolve policy through a case-by-case process. Adjudicatory policymaking is particularly appropriate where the administrative review authority is also the ultimate authority for the agency. Koch, Administrative Law and Practice, 2d,5.28 (1997).
9. The Indiana General Assembly has developed a statutory relationship between the Department and the Commission designed to support meaningful review of decisions at the agency level. In the late 1980s, both the Department and the Commission were subjected to "Sunset" evaluation under IC 4-26-3. Within that process, the Indiana Legislative Services Agency ("LSA") offered recommendations concerning whether the Commission should have a continued existence. The first alternative recommendation by LSA was to abolish the Commission, an alternative which the legislature rejected with the retention of the Commission under P.L. 28-1990. The second alternative, and the one more closely identified with the policy choice of the Indiana General Assembly, was supported by the following critique by LSA:
1. The Director of the DNR [the Department] would receive all day-to-day decision-making authority. Departmental decisions would be appealed through the administrative adjudication process, with the Commission acting as final adjudicative authority. This change in authority would be particularly effected in the DNR regulatory functions such a mining and water, as it would serve to process applications more efficiently on items with no conflict. Public notification and input would be continued on such initial actions. Sunset Audit, Indiana Legislative Services Agency, Matters of Resources, Recreation, and the Arts (May 1989).
10. Under the current legislative design, the director or a Department employee delegated by the director issues all "licenses" for the Department. IC 14-11-3-1. The Commission is the "ultimate authority" for the Department under the AOPA. IC 14-10-2-3. The Department makes the day-to-day licensing decisions, but these are subject to administrative review by the Commission. Administrative review is particularly noteworthy for issues involving "mining" and, here "water," which are likely to invoke public interest. Working properly together, the Department and the Commission form a complete administrative record supportive of reasoned agency action. Administrative review forms an element of policymaking in which the Commission, as ultimate authority for the Department, has an important role.
11. On the other hand, both the doctrine of separation of powers and the AOPA limit the scope of judicial review. Medical Licensing Bd. Of Indiana v. Provisor, 653 N.E.2d 1035 (1995 Ind. App.). Judicial review is limited to determining whether an agency possessed jurisdiction over the subject matter, the agency's decision was made pursuant to proper procedures, was based upon substantial evidence, was not arbitrary or capricious, and was not in violation of any constitutional, statutory, or legal principle. Indiana Dept. of Natural Resources v. Peabody Coal Co., 654 N.E.2d 289 (1995 Ind. App.).
12. The role of the Commission in the instant proceedings is not to determine who has standing to take judicial review. That is the exclusive province of the courts. Rather the determination is limited to deciding standing for administrative review.
13. The fundamental purpose of pleadings in an administrative process is to inform each party of the other's position so that each can properly prepare. Initial pleadings can be amended where justice would be served. Two Market Square Associates Ltd. Partnership v. State Bd. Of Tax com'rs, 656 N.E.2d 308 (1995 Ind.).
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14. Consistent with this judicial interpretation, the Commission has provided by rule for the amendment of petitions for administrative review under IC 4-21.5-3-7 and other pleadings filed before it under the AOPA. As provided at 312 IAC 3-1-6:
Sec.6. (a) A pleading described in section 3(a) of this rule may be amended once as a matter of course before a response is filed, but not later than the initial prehearing conference or fifteen (15) days before a hearing (whichever occurs first), except by leave of the administrative law judge. Leave shall be granted where justice requires.
(b) If the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
15. As determined by the Commission, the purpose of a petition is to provide any respondents with "reasonable notice as to the subject of administrative review. The general rules for civil pleadings require that a claim include a short and plain statement showing that the pleader is entitled to relief and a demand for the relief to which he deems himself entitled. Trial Rule 8(A)." Hoosier Environmental Council v. DNR and Vigo Coal Company, 8 Caddnar 13 (1997). "All civil pleadings are to be construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points. Trial Rule 8(F). Where not otherwise inconsistent with the AOPA or 312 IAC 3-1, a provision of the trial rules may be applied. The application appears appropriate to the construction of requests for administrative review as well. 312 IAC 3-1-10. The result would be both incongruous and inequitable if a more stringent standard for initiating a claim were required for the informal AOPA than for a more formal civil proceeding." Id.
16. The petitions for administrative review by the Claimants were in several aspects overly broad, seeking the imposition of Commission authority where it lacks subject matter jurisdiction. The remedy for the malady is the exorcism of offending averments. The Respondents have pursued the remedy and received dismissals with respect to various issues as memorialized in findings below. To the extent the Respondents were left with lingering doubts, they had at their disposal discovery and other processes designed to clarify issues prior to hearing. The Respondents also exercised the opportunity to seek discovery.
17. At issue in these proceedings is Permit FW-17,793 (sometimes referred to as the "subject permit") granted under authority of the Flood Control Act (IC 14-28-1) and the Navigable Waterways Act (IC 14-29-1).
18. The key permitting section of the Flood Control Act is typically IC 14-28-1-22. Section 22(e) requires the issuance of a permit so long as a construction activity will not do any of the following:
Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
Constitute an unreasonable hazard to the safety of life or property.
Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.
Boyd, et al. v. Department of Natural Resources and Floyd Commissioners, 8 Caddnar 5 (1997).
19. For navigable waters, the Department is not only the regulator but also the proprietor. Title to the bed of a navigable water is owned by the State of Indiana. State v. Kivett, 228 Ind. 629, 95 N.E.2d 148 (1950). The state agency assigned "general charge" of navigable waters is the Department. IC 14-19-1-1(9). The line of demarcation for a navigable waterway is its ordinary high watermark. 310 IAC 21-1-1(c) as since recodified at 312 IAC 6-1-1(b). The key permitting section of the Navigable Waterways Act is typically IC 14-29-1-8. Section 8(c) anticipates the issuance of a permit for an activity which will not do any of the following:
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Unreasonably impair the navigability of the waterway.
Cause significant harm to the environment.
Pose an unreasonable hazard to life or property.
20. Without attempting a complete laundry list of contentions by the Claimants which comport with the spirit of IC 4-21.5-3-7, and place the Respondents in a position to prepare a defense, a few general illustrations of compatible claims are appropriate. PORE urges in its original petition that granting the subject permit will cause residences to be placed in the floodway in violation of the Flood Control Act (IC 14-28-1). HEC urges in its petition that approval of the subject permit will result in unreasonably detrimental effects upon fish, wildlife, or botanical resources; it then identifies several particulars in which HEC believes those unreasonably detrimental effects will occur. SOR references specific subsections of the Flood Control Act, which it claims would be violated by issuance of the permit. The petitions were adequate to inform of the Claimants' positions so as to allow the Respondents to adequately prepare.
21. The Respondents extensively supported their motions to dismiss. For the most part, however, the cited authorities are unpersuasive because they (1) address judicial review rather than administrative review; (2) consider subject-matters other than environmental law; or, (3) apply federal rather than state standards.
22. For example, Caesar's relies upon Wine & Spirits Wholesalers of Indiana v. Indiana Alcoholic Beverage Commission, 556 N.E.2d 17 (Ind. Ct. App. 1990). At issue is other than an environmental issue. The decision construes language within the AOPA which is concerned with judicial not administrative review. Wine & Spirits is primarily concerned with IC 4-21.5-5-3(a)(4) which grants standing for judicial review to a "person otherwise aggrieved or adversely affected by the agency action." Indeed, were the instant action on judicial review, the Claimants would seemingly satisfy the section at issue, and the analysis by the Court of Appeals of Indiana, under IC 4-21.5-5-3(a)(3), because they are parties "to the agency proceeding."
23. Caesar's also cites Indiana Family & Social Services Administration v. Methodist Hospital of Indiana, Inc., 669 N.E.2d 186 (Ind. Ct. App. 1996). A careful reading reveals that the case involves reversal of an arbitrary and capricious agency decision to deny administrative review. The Court found the agency's "own regulations confer standing to request an administrative hearing upon any person or entity." Indiana Family at 188. If the decision is instructive to the instant actions, the worth is in the Recognition an agency's practices cannot be ignored in determining whether to grant administrative review. The holding is that judicial review is available without administrative exhaustion where Administrative review is wrongfully denied by the agency. Indiana Family does not support a denial of administrative review to the Claimants.
24. The Department relies in large measure upon Terre Haute Gas Corporation v. Johnson, 221 Ind. 499, 45 N.E.2d 486. Once again, the decision is concerned with judicial review and does not apply to the context of environmental law.
25. Caesar's also cites two opinions construing the federal Administrative Procedures Act. Lujan v. National Wildlife Foundation, 110 S.Ct. 3177 (1990) and Sierra Club v. Morton, 92 S.Ct. 1361 (1972). These cases are concerned with judicial not administrative review, and they construe statutes other than the AOPA. However, it is also worth noting these decisions are based upon the federal law of standing. "Unlike the federal law of standing which is rooted in the Constitution's case or controversy' requirement, standing in state courts is not normally viewed as a constitutional doctrine."
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State Environmental Law, 11.02[1] (1995). Even so, the basic principles stated in these cases are not in conflict with a grant of standing for administrative review in the instant actions.
26. On judicial review, state environmental cases have typically applied a two-prong test derived from association of Data Processing Serv. Org. v. Camp., 397 U.S. 150, 152-53 (1970). A petitioner must show "the administrative action will in fact have a harmful effect on the petitioner and that the interest is arguably within the zone of interests to be protected by the statute." That an injury is widespread, affecting large numbers of the public, will not deny an individual standing simply because the injury is no different from injuries suffered by the public generally. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 287 (Pa. 1975) citing United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687-88 (1973). The "zone of interest" prong is met where review is brought under a statute intended to protect the environment in some fashion. Wisconsin's Envtl. Decade, Inc. v. Public Service Com'n, 69 Wis.2d 1, 230 N.W.2d 243, 251 (1975).
27. Both the Flood Control Act (IC 14-28-1) and the Navigable Waterways Act (IC 14-29-1) are statutes directed in large measure toward environmental protection and related concerns of public safety. The Indiana General Assembly in expressing its intent for the Flood Control Act notes the "loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people. . . ." IC 14-28-1-1. Structures cannot be erected which would result in "unreasonably detrimental effects upon the fish, wildlife, or botanical resources." IC 14-28-1-20. A permit cannot be issued under the Navigable Waterways Act which would result in "significant harm to the environment" or "an unreasonable hazard to life or property." IC 14-29-1-8(c). Administrative reviews of licensing decisions by the Department made under the Flood Control Act or the Navigable Waterways Act can qualify as state environmental cases.
28. The Indiana General Assembly has also enacted legislation supporting a liberal view of standing with respect to environmental cases generally. IC 13-30-1 is probably best-known as authorizing the initiation of civil citizen suits in the name of the state for declaratory and equitable relief. IC 13-30-1-1. The chapter also provides standing, however, to a citizen of Indiana to intervene in an administrative or licensing proceeding upon an allegation the proceeding "involves conduct, programs, or products that may have the effect of significantly impairing, polluting, or destroying the environment of Indiana." IC 13-30-1-5.
29. With this legal platform as a foundation, a recent decision by the Commission is informative. The Commission considered an attack on standing with respect to administrative review of a licensing action under the Flood Control Act in Wells v. DNR, Cass County Board of Com's, and American Timber Bridge & Culvert, 7 Caddnar 186 (1997). The Commission found a citizen of the county and "user of natural resources in the area" had sufficient standing to obtain administrative review of a license to build a bridge using creosote-treated timbers. "Where its regulatory authority is based upon environmental considerations, the Commission has either assumed or viewed liberally the standing of citizens to participate in adjudicatory processes. Extensive research efforts have not encountered even one instance where the Commission has denied standing if environmental concerns were at issue."
30. The decision in Wells is indicative of the Commission's exercise of administrative review and is persuasive in the instant actions. Without finding that every state citizen has standing to obtain administrative review of every licensing determination under the Flood Control Act or the Navigable Waterways Act, it is sufficient to find the Claimants have standing here.
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Even applying the standards of judicial review in Association of Data Processing Serv. Org. v. Camp to these administrative reviews, the Claimants have averred granting the subject permit will have a harmful effect on them and that their interests are arguably within the zone of interests to be protected by the Flood Control Act and the Navigable Waterways Act. The petitions by HEC, SOR, and PORE are replete with averments of individual interest and environmental harm.
B. Dismissal of Claims Over Which the Department of Natural Resources (and Upon Administrative Review, the Natural Resources Commission) Lack Subject-Matter Jurisdiction
31. "Caesars' Motion to Dismiss Issues" was filed on October 16, 1997 and the "Department's Motion to Dismiss on Various Issues" was filed on November 3, 1997. The parties contemporaneously or subsequently filed memoranda, affidavits, and other documents either in support of or opposition to these motions. The motions to dismiss may generally be characterized as asserting the Department (and the Commission on administrative review) lacks subject-matter jurisdiction over numerous contentions by the Claimants.
32. An Indiana state administrative agency has only those powers conferred to it by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995) and Michigan City Historical Society v. DNR, 5 Caddnar 169 (1990). The Respondents urge several claims do not derive from powers conferred by the Indiana General Assembly upon the Department and are not subject to administrative review by the Commission.
33. The parties have submitted affidavits and other matters outside the pleadings either to support or refute the motions to dismiss. Generally, these submissions convert a motion to dismiss to a motion for summary judgment. Connecticut Indem. Co. v. Bowman, 652 N.E.2d 880 (Ind. App. 1995). This result does not follow where, as here, the motions seek dismissal based upon subject-matter jurisdiction. Rather, the dismissal holds the matter in abatement, allowing the non-moving parties an opportunity to pursue other remedies. Foshee v. Shoney's, Inc., 637 N.E.2d 1277, 1280 (Ind. 1994). This principle may deserve particular notice where the determination is not that a grievance is without redress, but it is instead the Department is not the agency empowered to grant the redress.
34. On January 2, 1998, the Administrative Law Judge provided an "Interlocutory Order of Dismissal with Respect to Various Issues." This interlocutory order was supplemented on January 14, 1998 with an "Interlocutory Order with Respect to The [sic.] An Environmental Impact Statement for the Subject Permit." The Claimants elected not to plead over with respect to the matters found to be outside the Commission's subject-matter jurisdiction, but they instead pursued other aspects of their claims which were not to be dismissed. As anticipated in the interlocutory orders, the matters to be dismissed are memorialized here for final disposition by the Commission.
35. Reference is made by SOR in its "Petition for Administrative Review and Stay" filed on August 25, 1997 to alleged discrepancies between the subject permit and a Section 401 (33 USC 1341) water quality certification given at the same site by the Indiana Department of Environmental Management ("IDEM") in favor of Caesar's. Caesar's responds in its "Memorandum in Support of Caesar's Motion to Dismiss Issues" filed on October 16, 1997 that "many of the Claimants here
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have appealed the Certification through IDEM's Office of Environmental Adjudication." Clearly, IDEM (with administrative review to the Office of Environmental Adjudication) is the proper state forum for the consideration of water quality certifications under Section 401 of the Clean Water Act. The Department lacks subject-matter jurisdiction to consider Section 401 water quality certifications, and the Commission lacks subject-matter jurisdiction to review Section 401 water quality certifications.
36. HEC contends in its "Petition for Review of Approval of Permit for Construction in a Floodway, Application #FW-17,793" filed on August 22, 1997 that unreasonably detrimental effects will be caused to fish, wildlife, and botanical resources as a result of "increased emissions of ozone-causing pollutants which in turn are known to damage trees and other vegetation." Nothing in either the Flood Control Act or the Navigable Waterways Act expresses a legislative intent that the Department address matters of air quality.
37. To the contrary, the responsibility rests primarily at the state level with IDEM and its Air Pollution Control Board. That air quality responsibility clearly extends to natural resources as well as to human health. "It is the intent and purpose of the air pollution control laws to maintain the purity of the air resource of Indiana, which shall be consistent with protection of the public health and welfare and the public enjoyment of the air resource, physical property and other resources, flora and fauna, maximum enjoyment, and full industrial development of Indiana. The air pollution control board and. . . [IDEM] shall safeguard the air resource through the prevention, abatement, and control of air pollution by all practical and economically feasible methods." IC 13-17-1-1. Emphasis added. Caesar's also points out that, in addition to IDEM, the U.S. Army Corps of Engineers and the Indiana Department of Transportation are responsible for considering and addressing the consequences of traffic patterns upon air pollution. The Department and the Commission lack subject-matter jurisdiction to consider matters of air quality.
38. In its "Petition for Administrative Review" filed on August 22, 1997, PORE urges Special Condition 17 of the subject permit provides the proposed buildings must satisfy the requirements of the Harrison County floodplain management ordinance. "However, the approved plan does not comply with the current floodplain management ordinance." PORE concedes the Commission is not empowered to enforce the ordinance but urges a factual issue is raised which must be decided by the Commission as the fact-finder. The Commission "should exercise its subject-matter jurisdiction over the permit." Similarly, SOR contends the subject permit violates the Harrison County Ordinance that "no development should be allowed which acting alone or in combination with existing or future similar works will cause any increase in the elevation of the regulatory flood."
39. There may be a factual dispute as to whether the approved plan complies with the Harrison County floodplain ordinance. Resolution of the dispute must, however, rest with the loal entity which implements the ordinance. If a determination is made locally the ordinance has been violated, the determination could form the basis for an enforcement action directed to the subject permit. Licensing actions and enforcement actions are separate agency orders which occasion separate opportunities for and standards of review. These proceedings provide administrative reviews from a licensing determination and are subject to IC 4-21.5-3-5. Enforcement is not currently an issue. If an enforcement action were to be initiated, the action would be subject to IC 4-21.5-3-8 rather than IC 4-21.5-3-5.
40. The Commission lacks jurisdiction to determine whether the Harrison County floodplain ordinance has been violated because jurisdiction rests locally. Even assuming for the sake of argument that a violation is locally adjudicated, the adjudication is irrelevant to a determination of the subject permit.
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Any potential relevance which may bear upon whether the subject permit is in violation of an ordinance must follow an enforcement action, and no enforcement action is pending.
41. HEC claims in its August 22, 1997 petition for review the secondary land development activities "that will occur such as additional commercial and retail development as well as residential housing" will cause harm to aquatic life and aquatic habitat by increasing sedimentation and the run-off of chemicals. The Department moved to dismiss this claim on the basis these secondary land development activities are not covered by the subject permit. "This issue is not ripe for review and is, therefore, outside the subject matter of this proceeding." Goff v. DNR, 5 Caddnar 163, 164, footnote ii (1990). The argument by the Department in this regard is persuasive. While the Flood Control Act is concerned with adverse cumulative effects, something more definitive is required than an allegation of harm resulting from general commercial or retain development, which may or may not occur. The claim by HEC is speculative. Potential future development is not, in itself, an evil precluded by the Flood Control Act. The Commission lacks subject-matter jurisdiction to deny the subject permit on the basis secondary land development may occur in the vicinity.
42. HEC also claims in the petition the Department "acted in an arbitrary and capricious manner in approving" the subject permit "since at least one other permit application at the same site with equal or lesser effects on fish, wildlife, and botanical resources was denied." The Department moved to dismiss the claim on the basis each "permit application must be evaluated on its own merits to determine whether the requirement" of the Flood Control Act and the Navigable Waterways Act are met. "As in the proceeding here, administrative review may be requested if the applicant believes the Department erred in denying the permit. Evidence of other permits is not relevant to the issues involved in the present case. For this reason, Claimant HEC fails to state a claim for which relief may be granted in this proceeding." The argument by the Department is persuasive. The Commission lacks subject-matter jurisdiction to deny the subject permit based upon action taken with respect to another permit.
43. The Claimants contend the Department erred in not preparing and environmental impact statement for the subject permit, and, additionally, that the consideration of an environmental impact statement by the U.S. Army Corps of Engineers was inadequate.
44. State environmental impact statements are governed by IC 13-12-4. As a state agency, the Department is subject to IC 13-12-4. See, for example, IC 13-12-4-5(2). Specifically exempted from IC 13-12-4, however, is the issuance of licenses and permits. "This chapter may not be construed to require an environmental impact statement for the issuance of a license or permit by any state agency." IC 13-12-4-8. The subject permit is a license governed by the Flood Control Act and the Navigable Waterways Act, and its issuance is exempted from IC 13-12-4. The Commission lacks subject-matter jurisdiction to deny the subject permit based upon the absence of a state environmental impact statement because a state environmental impact statement is not required to be prepared.
45. The Commission lacks subject-matter jurisdiction to provide administrative review of an environmental impact statement prepared by the U.S. Army Corps of Engineers. Similarly, the Commission lacks subject-matter jurisdiction to provide administrative review of a declination by the U.S. Army Corps to require or draft an environmental impact statement. The Indiana General Assembly has not accorded the Commission with authority to review decisions by the U.S. Army Corps (and, furthermore, to do so would violate basic precepts of Federalism).
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C. Jurisdiction Over Issues of Water Quality
46. In the "Respondent Department of Natural Resources' Memorandum in Support of its Motion to Dismiss Issues for Lack of Subject Matter Jurisdiction" filed on November 3, 1997, the Department argues IDEM is the state agency exclusively responsible for addressing issues of water quality. Reference is made to IC 13-18-4-4 which specifies that IDEM "may take appropriate steps to prevent any pollution that is determined to be unreasonable and against public interests in view of the condition in any streams or other waters of Indiana." Reference is also made by the Department to IC 13-18, generally, and there can be no question of the substantial authority vested by that statutory article in IDEM to address water quality issues. In addition to being the state agency responsible for implementation of the Clean Water Act (33 U.S.C. 1251, et seq.) and most of the Safe Drinking Water Act (42 U.S.C. 300f and 300j), IDEM is given wide authority and responsibility for dealing with problems associated with water pollution. See particularly IC 13-18-3 and IC 13-18-4.
47. There is a clear legislative intent to make IDEM the state agency primarily responsible for water quality. It does not follow this responsibility is exclusive of other agencies, particularly as those agencies implement particular regulatory programs. An illustration is the responsibility of the Soil Conservation Board, which is established within the Department, to pursue "erosion and sediment reduction programs that affect water quality." IC 14-32-2-12(8).
48. The Department misplaces reliance upon Schafer and Nash v. DNR and Wagoner, 7 Caddnar 17 (1993), in support of its argument the commission has no jurisdiction over water quality. In Schafer, several neighbors opposed the issuance of a permit under the Flood Control Act (now IC 14-28-1) for the reconstruction of a dam. The neighbors contended a consequence of dam reconstruction would be a revitalized pond, and in turn, the development of a residential subdivision. Expert testimony was unrefuted the dam reconstruction would have no unreasonable detrimental effects upon fish, wildlife, or botanical resources. Water quality concerns raised by the neighbors regarding outfall discharges were found by the Commission to be untimely for review, since the permit authorized only the reconstruction of a dam and did not authorize the placement of outfall structures. There was no evidence offered in Schafer that water quality would be degraded by construction of the dam as conditioned in the permit, and issuance of the permit was affirmed on administrative review.
49. Water quality is a key environmental value. As reflected previously, the Flood Control Act addresses environmental values in its prescription on the issuance of a construction permit which will "[r]esult in unreasonably detrimental effects upon fish, wildlife, or botanical resources." IC 14-28-1-22(e)(3). Similarly, the Navigable Waterways Act (IC 14-29-1) prescribes construction which will "[c]ause significant harm to the environment." IC 14-29-1-8(c)(2). Water quality may well be relevant to whether the values are properly protected. Water quality is a consideration which cannot be divorced from the responsibilities of the Department under the Flood Control Act and the Navigable Waterways Act. While water quality must be viewed in the context of those statutory chapters, and not within the broader context of the regulatory authority held by IDEM, neither can the Department defer entirely to IDEM for matters of water quality.
D. Administrative Collateral Estoppel Effect Given to the Final Determination by the
Office of Environmental Adjudication
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50. On January 16, 1998, Caesar's filed its "Motion for Leave to File Motion for Partial Summary Judgment Based on Collateral Estoppel." The motion for leave was accompanied by "Caesar's Motion for partial Summary Judgment Based on Collateral Estoppel" and supporting documentation, including the November 20, 1997 affidavit of Andrew Pelloso. The motion was granted and the parties provided until February 3, 1998 to respond. Responses were offered by the Claimants in a timely fashion, and Caesar's also subsequently filed a reply brief.
51. The Administrative Law Judge found on February 10, 1998 in his "Interlocutory Order with Respect to Partial Summary Judgment Based on Administrative Collateral Estoppel" the motion should be granted in part. He concluded there was no genuine dispute but that water quality on the Ohio River and Knob Creek would not be degraded or harmed by any aspect of the projects authorized by the subject permit, including construction activities, vessel operations, the use of pesticides and chemical controls, and storm water discharges. This partial summary judgment was not extended to activities averred to be unreasonably detrimental to fish, wildlife, or botanical resources and founded upon other than degradation to water quality. The matters contained in the partial summary judgment are affirmed by the Commission.
52. Generally, collateral estoppel operates to bar a subsequent relitigation of the same fact or legal issue where that fact or issue was necessarily adjudicated in a former suit. Tofany v. NBS Imaging Systems, Inc., 616 N.E.2d 1034, 1036 (Ind. 1993). A final administrative determination may have collateral estoppel effect in subsequent proceedings. McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 394 (Ind. 1988). Indiana cases considering the application of res judicata and collateral estoppel in administrative proceedings hold these principles apply to administrative proceedings which are judicial in nature. Shortridge v. Review Board of Indiana Employment Security Division, 498 N.E.2d 82 (Ind. Ct. App. 1986); South Bend Federation of Teachers v. National Education Association-South Bend, 180 Ind. App. 299, 389 N.E.2d 23, 34 (1979).
53. In McClanahan, the Indiana Supreme Court provided four criteria "to determine whether an administrative determination should estop subsequent litigation." These criteria are whether:
(1) The issues sought to be estopped were within the statutory jurisdiction of the agency deciding them.
(2) The agency was acting in a judicial capacity.
(3) The parties had a fair opportunity to litigate the issues.
(4) The decision of the administrative tribunal could be appealed to a judicial tribunal.
These criteria are considered separately as they apply to the instant action.
54. As stated previously, IDEM is the state agency primarily responsible for water quality, although this responsibility is not exclusive among state agencies. Administrative review of decisions by IDEM rests with the Office of Environmental Adjudication. For consideration as to administrative collateral estoppel in this proceeding is a final order of the Office of Environmental Adjudication rendered on January 5, 1998 in Objections to the Issuance of Section 401 Water Quality Certification COE ID: 199600554 RDI/Caesars Riverboat Casino, LLC, Cause No. 97-W-J-1824 (the "OEA Final Order").
55. An important element of the OEA Final Order is state administrative review of a water quality certification made by IDEM to the U.S. Army Corps of Engineers for the same development by Caesar's as is at issue in the instant proceeding. The water quality certification is subject to IDEM jurisdiction and is also governed by federal law at 33 USC 1341, better known as "Section 401 of the Clean Water Act." This section provides that an "applicant for a Federal license or permit to conduct any
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activityincluding, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the state in which the discharge originates or will originate . . . that any discharge will comply with the applicable provisions" of the Clean Water Act.
56. HEC argues in its brief in opposition to partial summary judgment that the issues for Section 401 water quality certification are "significantly different" from those for consideration in the instant action. "[T]he IDEM review considers only the effects of a discharge' on water quality or aquatic life. The IDNR review, in contrast, looks at impacts to fish, wildlife, and botanical resources that result from a broader range of activities which includes the act of construction, or presence of a structure, in a floodway, or in the case of a navigable waterway (applicable in this instance) construction which will cause significant harm to the environment."
57. HEC's response fails to negate Caesar's argument, at least where water quality is at issue, in two particulars. First, the OEA Final Order reflects the breadth of legal argument extended well beyond Section 401 of the Clean Water Act to include all water quality jurisdiction of IDEM. For example, specific reference is made to 327 IAC 212 by which IDEM prohibits any degradation of water quality "which would interfere with or become injurious to existing and potential" beneficial uses of the State's surface waters. Caesar's urges in the brief in support of summary judgment, and HEC does not refute in its response: OEA found (and this is beyond dispute) that IDEM had statutory jurisdiction to determine whether the Caesars Project will comply with Indiana's water quality standards, i.e., whether it will degrade water quality and whether it will harm aquatic life and habitat. See Ind. Code 13-13-5-1, 13-18-2-1, 13-18-3-10; 33 U.S.C. 1342.
58. In addition, Caesar's notes in its reply brief that 33 USC 1341(a)(1) grants authority to the states to condition water quality certifications "upon any limitations necessary to ensure compliance with State water quality standards or any other appropriate requirement of State law.'" PUD No. 1 v. Washington Department of Ecology, 114 S. Ct. 1990, 1910 (1994).
59. Second, HEC does not present facts to refute those offered by Caesar's. In support of the motion for summary judgment, Caesar's presents the factual findings and legal conclusions embodied by the OEA Final Order (most notably as founded in the November 20, 1997 affidavit of Andrew Pelloso). A clear showing is made that the water quality issues upon which Caesar's seeks estoppel against HEC and Save Our Rivers ("SOR") are within the jurisdiction of IDEM.
60. HEC urges that Spearman v. Delco Remy Division of General Motors Corporation requires the issues be the same in the case cited for collateral estoppel effect as they are in the proceeding or proceedings at issue. This requirement is essentially a corollary to the criterion that an issue must be within the jurisdiction of the agency rendering the earlier decision. Yet if the jurisdictions of two agencies are not articulated in exactly the same way by the legislature, and seldom would they be, the differences must be significant to the facts of a particular case in order to be of legal consequence.
61. If the exercise of jurisdiction embodied by the OEA Final Order varies significantly from DNR's exercise of jurisdiction relative to the permits in the instant action, the variation is not reflected in the record. HEC provides no material facts upon which a conclusion different from that rendered by OEA with respect to water quality, and the impact of water quality upon natural resources, might be reached. Indeed, Caesar's argues in its reply brief the IDEM standard is more stringent since IDEM was statutorily required to assure no degredation to water quality and no resulting harm to aquatic life, while the DNR is only required to ensure no unreasonable detrimental effects to fish, wildlife, or botanical resources.
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Adoption of Caesar's argument is unnecessary. HEC has failed to demonstrate, as required by IC 4-21.5-3-23, that a material issue of fact exists upon which a water quality decision could be rendered in the present action which is different from the OEA Final Order.
62. The issues sought by Caesar's to be estopped were within the statutory jurisdiction of IDEM and of administrative review by OEA. Water quality, and the impact of water quality upon natural resources, are the essence of the jurisdiction. HEC has not shown there are material facts upon which to determine the statutory jurisdiction of IDEM varies in any substantive way from the DNR jurisdiction as those respective jurisdictions are applied to the instant action. This criterion of administrative collateral estoppel is satisfied.
63. The Office of Environmental Adjudication was established by the Indiana General Assembly to review, under IC 4-21.5, decisions rendered by IDEM, including water pollution control laws. IC 4-21.5-7-3. Environmental Law Judges preside over proceedings for the purpose of providing administrative review. IC 4-21.5-7-4. The administrative orders and procedures act provides an array of opportunities and safeguards designed to assure review in a judicial capacity. An Environmental Law Judge is governed by ethical requirements which include a prohibition on improper ex parte communications. IC 4-21.5-3-11. A record of the proceeding is maintained. IC 4-21.5-3-14. Mechanisms are recognized to compel attendance by subpoena, to accomplish discovery, and to provide access to appropriate protective orders. IC 4-21.5-3-22. Mechanisms are provided for the disposition of proceedings by dismissal, default, or summary motion. IC 4-21.5-3-23 and IC 4-21.5-3-24. A hearing de novo is provided for any facts genuinely in dispute to review evidence not previously considered by the agency, following which an administrative law judge weighs the evidence and reaches independent conclusions. Indiana Dept. of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 106 (Ind. Ct. App. 1993).
64. The OEA Final Order was rendered following a completed proceeding under the AOPA. In conducting the proceeding and rendering the order, the Office of Environmental Adjudication was acting in a judicial capacity. This criterion for granting administrative collateral estoppel is also satisfied.
65. In reviewing whether the parties had a fair opportunity to litigate the issues, a threshold task is identifying which parties were participants in the two proceedings. In this regard, HEC cites a federal court decision, Spearman v. Delco Remy Division of General Motors, which requires the parties to be the same. As pointed out in Caesar's reply, an identity of parties is not now a prerequisite in Indiana to the defensive use of collateral estoppel. Sullivan v. American Casualty Co., 605 N.E.2d 134 (Ind. 1992).
66. For the purposes of the instant action, the parties which were the same as those in the action before the Office of Environmental Adjudication are Caesar's, HEC, and SOR. Caesar's may seek collateral estoppel against HEC in Cause Number 97-181W and against SOR in Cause Number 97-184W. Earl Becker and Protect Our River Environment were not parties to a proceeding before the Office of Environmental Adjudication, but they did not raise water quality as an issue in Cause Number 97-185W.[FOOTNOTE 2]
67. For the reasons stated with respect to the second criterion, the AOPA generally provides a fair opportunity to litigate the issues. Nothing is referenced from the conduct of the proceedings particular to Objections to the Issuance of Section 401 Water Quality Certification COE ID: 199600554 RDI/Caesars Riverboat Casino, LLC, Cause No. 97-W-J-1824 which would support the finding a fair opportunity to litigate the issues was denied by the Office of Environmental Adjudication
68. HEC urges that granting summary judgment in OEA Final Order precludes its full opportunity to litigate the issues because "HEC was unable to present all of its witness testimony or evidence."
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The argument does not disclose whether HEC believes this flaw results because (1) OEA erred upon the record in granting summary judgment; or, (2) any disposition based upon summary judgment offers something less than due process. If the argument is the former, HEC's remedy lies with judicial review. If the latter, similarly collateral estoppel could not be given to a judicial summary judgment. HEC presents no authority for this argument, and it is unpersuasive. This criterion is satisfied. Caesar's, HEC, and SOR had a fair opportunity to litigate the issues before OEA.
69. The parties do not dispute but that an opportunity existed to take judicial review of the decision by the Office of Environmental Adjudication. In its brief, HEC concedes to having had until February 7, 1998 to take judicial review of the OEA Final Order [FOOTNOTE 3]. As provided in IC 4-21.5-5-3, a person who is a party to administrative review has standing to seek judicial review.
E. Partial Summary Judgment Based on Floodway Issues
70. On February 2, 1998, the "Department's Motion for Partial Summary Judgment on Floodway Issues" and the "Department's Memorandum in Support of Motion for Partial Summary Judgment on Floodway Issues" were filed. On February 2, 1998, "Caesars' Motion for Partial Summary Judgment on Floodway Delineation/Affect on Floodway Efficiency and Unreasonable Hazard" and its "Brief in Support of Caesars' Motion for Partial Summary Judgment on Floodway Delineation/Affect on Floodway Efficiency and Unreasonable Hazard" were filed. The motions were directed to all Claimants. On February 17, 1998, "Claimants' Response to Caesars' Motion for Partial Summary Judgment on Floodway Delineation/Affect on Floodway Efficiency and Unreasonable Hazard and Department's Motion for Summary Judgment on Floodway Issues" was filed. "Caesar's Motion to Strike Portions of the Affidavit of Robert L. Mullins" was filed on February 23, 1998.
71. The Administrative Law Judge found the motion for partial summary judgment should be granted in part. On March 3, 1998, he entered his "Interlocutory Order with Respect to Partial Summary Judgment Based on Floodway Issues (Including Disposition of Motion to Strike Affidavit of Robert Mullins). The partial summary judgment is affirmed by the Commission.
72. Summary judgment is appropriate where no genuine issue of material fact exists and where the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).
73. A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. cited previously. As the moving parties, Respondents had the burden of proving they were entitled to summary judgment against the Claimants on issues pertaining the delineation of the floodway and floodway hazards.
74. Summary judgment is made applicable to this proceeding by IC
4-21.5-3-23. Subsections (a) and (b) provide in pertinent part:
(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party's favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.
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(b) . . . The [summary] judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law.
75. After the filing of a motion for summary judgment with supporting affidavits and exhibits, the requirements of subsection (f) apply:
(f) If a motion for summary judgment is made and supported under this section, an adverse party
may not rely upon the mere allegations or denials made in the adverse party's pleadings as a
response to the motion. The adverse party shall respond to the motion with affidavits or other
evidence permitted under this section and set forth facts showing that there is a genuine issue in
dispute. If the adverse party does not respond as required by this subsection, the administrative
law judge may enter summary judgment against the adverse party.
76. The statute requires the adverse party or parties must come forward with affidavits or other permitted evidence which "set forth specific facts showing that there is a genuine issue in dispute." If the adverse party fails to meet this requirement, the administrative law judge may enter summary judgment.
77. The Claimants contended "[s]ummary judgment is an extreme remedy available only where no genuine issue of material fact exists." The Claimants urge they have "filed petitions for review outlining their contentions. Both Caesar's and DNR have filed fact-intensive briefs in support of their motions for summary judgment. In fact, both briefs cite virtually no law, but almost exclusively facts from affidavits. That the Respondents go to such lengths to make their statement of the facts known belies their assertions that no questions of material fact exist."
78. The Claimants' vision of the purposes of summary judgment was found to be too narrow. Summary judgment is a tool which provides for administrative and judicial efficiency, preserving the human and financial sources of the fact-finder and the parties, while assuring due process. A hearing opportunity is accorded to receive testimony and exhibits when there is a genuine factual issue in dispute. Summary judgment is no less appropriate where based upon 1,000 statements of fact than where based upon a single statement of fact. Indeed, the greatest value of the tool may be to help identify the few facts that are genuinely in dispute among a myriad of undisputed facts.
79. The time for the Claimants to material factual issues with the briefs (and more particularly the affidavits) by the Department and Caesar's was in their response. The response was limited, however, so much so that Caesar's moved to strike the substantive portions of it (paragraphs 5, 6, and 7 of the undated Affirmation of Robert L. Mullins, P.E.) as being inadequate to show the basis for the dispute. Even giving liberal application to the affidavit, however, many facts set forth by the Department and Caesar's have not been shown to be in dispute.
80. As reflected previously, the subject permit was granted under authority of the Flood Control Act (IC 14-28-1) and the Navigable Waterways Act (IC 14-29-1). A separate permit is not required under the Navigable Waterways Act for an activity permitted, among other statutes, under the Flood Control Act. To assist in the implementation of the Flood Control Act, the Commission adopted rules at 310 IAC 6-1.
81. The Commission is responsible for the delineation of the boundaries of a floodway. 310 IAC 6-1-8. The purpose of 310 IAC 6-1 is "to provide minimum standards for the delineation and regulation of all flood hazard areas for all rivers or streams in the state of Indiana for the purpose of decreasing existing flood damages, mitigating future flood damages, and promoting the
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health, safety, and general welfare of the people of Indiana." 310 IAC 6-1-2(a). The term "flood hazard areas" includes a "floodway." 310 IAC 6-1-3(21) and (24).
82. The standards for the delineation of a floodway
are set forth in 310 IAC 6-1-7:
Sec. 7. (a) Flood hazard areas shall be delineated in the following manner. The magnitudeof the
peak discharge of the regulatory flood of any river or stream shall be established. Using this
discharge, the regulatory flood profile shall be determined. The extend of flood hazard areas
shall be delineated using appropriate elevations from the regulatory flood profile and the best
available maps.
(b) The peak discharge of the regulatory flood shall be established using standard engineering
and statistical techniques acceptable to the commission.
(c.) Regulatory flood profiles shall be determined using standard engineering techniques
acceptable to the commission. The determinations shall start a sufficient distance downstream
from the area of interest in order to ensure reasonable accuracy. All bridges will be assumed to
remain open and free of debris and ice, unless local conditions indicate otherwise. Where
possible, the regulatory flood profile shall be correlated with known high water marks.
(d) The extent of flood hazard areas shall be delineated on the best available maps. Supplemental
information from field surveys shall be used as needed to locate the boundaries of the flood
hazard area.
(e) If there is a special need to delineate flood hazard areas and detailed engineering information
is not available, flood hazard areas may be delineated on a temporary basis using other available
information or methods acceptable to the commission.
83. The Commission has recognized that if a floodway has been delineated by the Federal Emergency Management Agency ("FEMA") in a published FEMA Flood Insurance Study map, the Department is required to follow that delineation. The only way for a floodway delineation made by FEMA to be changed is by requesting a revision from FEMA. Yater v. Department of Natural Resources, 6 Caddnar 168 (1994).
84. The subject permit is for a project located in Harrison County, Indiana. Exhibit A attached to the "Department's Memorandum In Support of Motion to Dismiss for Lack of Standing" filed on November 3, 1997. According to the Floyd County Flood Insurance Study, dated July 1980, and the Harrison County Flood Insurance Rate Maps, dated November 1, 1995, there is no floodway delineation by FEMA for the Ohio River for either county. David P. Knipe Affidavit of January 28, 1998.[FOOTNOTE 4]
85. In accordance with the Harrison County floodplain ordinance, where the floodway is not delineated in a Flood Insurance Study, the Department shall be requested to provide the delineation. Under these circumstances, FEMA approval is not required nor must the Department follow FEMA regulations in making a floodway delineation. Knipe Affidavit.
86. The Knipe Affidavit and the Affidavit of Hadi "Mike" Yamin dated January 27, 1998 also detail the processes used by the Department, and by consultant for Caesar's, to delineate the floodways of the Ohio River and Knob Creek relative to the subject permit. They present at least a prima facie basis to support conformance with legal requirements at the site. Because the Claimants have the burden of going forward and of persuasion; however, the real focus must be upon facts which are in dispute and may show the permit was somehow wrongly granted.
87. The only matters upon which a genuine factual dispute might rest were found in paragraph 7 of the Affirmation of Robert L. Mullins. In this paragraph, Mullins contended the floodway delineated by Thompson Engineering and applied by the DNR "ignores necessary elements to create an accurate study. Specifically, the Kentucky levee at the site delineating the
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Jefferson County floodway cannot be ignored, as was required by the Department of Natural Resources in conducting the study used in approving the applicant's permit. In addition, the floodway computation, based on the consultant's Preliminary Flood Impact Study,' was incorrectly determined. Therefore, the study on which the applicant's approval was based used both flawed data and flawed methods."
88. In "Caesar's Motion to Strike Portions of the Affidavit of Robert L. Mullins," Caesar's reflects that it deposed Mullins on February 20, 1998 and he testified "he has never reviewed the with levee' calculations Caesars submitted and DNR reviewed and that he did not know they had been done. That testimony was somewhat amazing because the DNR and Caesars affidavits submitted in support of their motions for summary judgment explain those facts in great detail." Similarly, in the "Department' Reply to Claimants' Response to Department's Motion for Partial Summary Judgment on Floodway Issues," it reflects that "Mullins' affidavit incorrectly alleges that the floodway delineation conducted by Thompson Engineering, and approved by the Department, ignored the existence of levees establishing a floodway in Jefferson County, Kentucky, directly across the Ohio River from the proposed site."
89. However compromised the testimony by Mullins may be by this apparent revelation to him, the Administrative Law Judge determined the item was yet a material fact in dispute. Whether the existence of the Kentucky levee was considered in delineating the floodway for the subject permit, and whether if considered the resulting delineation would vary, were determined to be matters properly before the trier of fact and not appropriate for summary judgment.
90. Mullins also states in paragraph 7: "In addition, the floodway computation, based on the consultant's Preliminary Flood Impact Study,' was incorrectly determined." As pointed out in "Caesar's Motion to Strike Portions of the Affidavit of Robert L. Mullins," if "an expert's opinion is so fundamentally unsupported that it cannot assist the trier of fact, it should be excluded. Dana Corp. v. American Standard, Inc., 866 F. Supp. 1481, 1499 (N.D. Ind. 1994)." Caesar's correctly urges that "[a]n affidavit submitted in opposition to a summary judgment motion is subject to a motion to strike if it does not meet the standards of Trial Rule 56(E) and Indiana Code 4-21.5-3-23(c). Among other things, affidavits must be devoid of hearsay and conclusory language." Gonzales v. North Township of Lake County, 800 F. SUPP. 676, 679-680 (N.D. Ind. 1992).
91. Caesar's described this aspect of the Affirmation by Mullins as "patently and impermissibly conclusory and, therefore, in accord with Trial Rule 56(C), Indiana Code 4-21.5-3-23 . . . and Gonzales, is not admissible and should be stricken. Further, Mullins provided no reasoning, methodology, or factual basis for his conclusion that Caesar's floodway computation was incorrectly determined, 'or how or why Caesars' data and methods were flawed.'" The argument by Caesar's was found persuasive, and this aspect of the Affidavit by Mullins was ordered stricken by the Administrative Law Judge.
92. The affidavits and other documentation attached to the motions by the Department and Caesar's demonstrated there would be no adverse affect upon the efficiency or capacity of the floodway, in contravention of IC 14-28-1-22(e), resulting from the portions of the Caesar's project governed by the subject permit. The Claimants responded with no affidavit or other evidence which might show a fact in material dispute. Partial summary judgment was granted by the Administrative Law Judge on these issues and is affirmed by the Commission.
93. The affidavits and other documentation attached to the motions of the Department and Caesar's demonstrated there would not be an unreasonable hazard to the safety of life or property, in contravention of IC 14-28-1-22(e), resulting from the
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portions of Caesar's project governed by the subject permit. Except as may be impacted by a modified delineation of the floodway, the Claimants responded with no affidavit or other evidence to show a fact in material dispute. Partial summary judgment was granted on these issues by the Administrative Law Judge, subject only to evidence received at hearing which might demonstrate the floodway was not properly delineated, and is affirmed by the Commission.
F. Propriety of Floodway Delineations Along the Site of the Subject Permit
94. A hearing was conducted as scheduled on March 23, 1998 in Jeffersonville, Indiana for the sole purposes of receiving evidence as to whether the existence of the Kentucky levee was considered in delineating the floodway for the subject permit and whether, if considered, the resulting delineation would vary. The parties were each represented by counsel. The Kentucky levee in question is located in the floodway of the Ohio River in Jefferson County, Kentucky.
95. When the Department makes an initial determination to issue a permit under the Flood Control Act, and administrative review of the determination is taken, the burden of going forward and the burden of persuasion (sometimes collectively referred to as the "burden of proof") rest with the party or parties seeking to set aside the determination. Schafer and Nash v. DNR and Wagoner, 7 Caddnar 17 (1993); IC 4-21.5-3-14. Also Brown v. DNR and Peabody Coal Company, 6 Caddnar 136 (1993). In the instant action, the Claimants have the burden of proving the permit issued by the Department to Caesar's should be set aside.
96. Claimants' engineer, Robert Mullins, P.E., testified he reviewed hydraulic modeling data obtained from the Department in February 1997 and August 1997 regarding the floodway delineation at the project site. He testified data from the two dates was basically the same, and the data erroneously failed to include the Kentucky levee.
97. Mullins also testified he reviewed the hydraulic modeling data of the U.S. Army Corps of Engineers' Sensitivity Study for the same area of the Ohio River. That data included the Kentucky levee.
98 . Mullins testified he did not perform any independent hydraulic modeling to include the Kentucky levee in the original delineation (without the Kentucky levee) prepared by Caesar's agent and approved by the Department.
99. Mullins testified he did not review the hydraulic modeling data prepared by Caesar's agent, which included the Kentucky levee, although he was aware of the existence of the data prior to the hearing on March 23, 1998.
100. Mullins testified the inclusion of the Kentucky levee in the hydraulic modeling would make a difference, although without performing the requisite calculations, he could not state how much difference the Kentucky levee would make.
101. Mullins testified the floodway delineation was based upon selected cross-sections which would provide results less effective than others in seeking to measure the conveyance of the Ohio River during a regulatory flood. He testified the Department should have used "transitioning cross-sections" which would have better reflected the Kentucky levee. Mullins did not specify where preferred cross-sections should have been located nor did he perform modeling based upon his ideal of preferred cross-sections.
102. The Department's engineer, David Knipe, testified Caesar's agent initially submitted to the Department an engineering study, including computer hydraulic modeling, of the floodway delineation for Ohio River Miles 616.5-617.5. See, also, Department Exhibit 1,B. At the direction of the Department, Caesar's agent did not include the Kentucky levee in the floodway delineation. As a result, the area outside the Kentucky levee was treated as an effective flow area.
103. After reviewing the floodway delineation study, Knipe testified the Department requested several revisions
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of the study. See, also, Department Exhibit 1,C. Caesar's made the requested revisions, and the Department then accepted the revised modeling and the resulting floodway as the regulatory model for the floodway delineation.
104. The Department determined the Kentucky levee should not be included in the floodway delineation because the Department questioned whether the levee was flood control levee which is properly operated and maintained by a governmental entity. Additionally, Knipe testified the Department's policy was to require the use of full valley cross-sections in hydraulic modeling, as opposed to a shortened cross-section which ended at the Kentucky levee.
105. On August 6, 1997, the Department made its initial determination to issue the subject permit based upon a floodway delineation which did not include the Kentucky levee.
106. After issuance of the subject permit, the Department requested Caesar's agent to submit additional floodway delineation data which included the Kentucky levee. On or about September 18, 1997, Caesar's agent submitted data to the Department for the floodway delineation which included the Kentucky levee. Testimony of David Knipe and Department Exhibit 3.
107. Knipe testified the Department reviewed the revised data submitted by Caesar's agent. In addition, the Department made adjustments to the revised data and prepared a "with levee" hydraulic model. The Department determined the floodway delineation for the model with the Kentucky levee to be the same on the Indiana side of the Ohio River as without the Kentucky levee. Hydraulic modeling with the Kentucky levee in place showed an increase in water surface elevation for the regulatory flood of less than 0.15 foot, the maximum allowable surcharge under Indiana law (and, obviously, less than one foot, the maximum allowable surcharge under the less stringent federal floodway standards).
108. Knipe testified, and his testimony was unrefuted, that the floodway delineation was acceptable with or without the Kentucky levee in place.
109. Evidence was somewhat sketchy as to the operation and maintenance of the Kentucky levee. Similarly, the legal basis for requiring the inclusion of a levee in a floodway delineation, if the levee is operated and maintained by a governmental entity, was not clearly illuminated.
110. Even viewing the evidence most favorably to the Claimants, no foundation was established for setting aside the subject permit based upon a failure to consider the existence of the Kentucky levee. If the Department originally erred in instructing Caesar's agent not to consider the Kentucky levee, the error was inconsequential. Since the unrefuted evidence is that inclusion of the Kentucky levee made no difference to the floodway delineation for the subject property, its original exclusion forms no basis to reverse or condition the initial determination by the Department to issue the subject permit. The function of administrative review is to correct consequential errors and not to reverse agency determinations which may have included inconsequential errors.
111. Similarly, what Mullins views as the Department's ineffective choice of cross-sections in itself forms no basis to reverse or condition the initial determination by the Department. An alternate selection of cross-sections is relevant only if their selection is shown to invalidate the floodway delineation approved by the Department. The evidence offered by the Claimants does not make that showing. Alternate cross-sections have not been located. Alternate cross-sections have not been used to model a floodway other than the one approved by the Department.
112. The Claimants have presented no evidence to support the proposition that, if the Kentucky levee had been considered when the initial determination was made to issue the subject permit, the resulting floodway delineation would vary. Mullins testimony that including the levee in the floodway would change the water elevation is not contradictory because he had not
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personally performed modeling, nor had he reviewed modeling subsequently performed by the Department, to identify how much the water elevation would be changed. Mullins testimony that cross-sections used by Caesar's agent and the Department were not well-suited to determining the floodway delineation is not contradictory because the Claimants did not locate alternate cross-sections or make any demonstration as to how those alternate cross-sections would change the floodway delineation.
113. The Kentucky levee was not considered when the Department delineated the floodway and made its initial determination to issue the subject permit in favor of Caesar's. Subsequent to the initial determination to issue the subject permit, the Department re-evaluated the floodway delineation with the inclusion of the Kentucky levee. The unrefuted evidence is, however, that the floodway delineation is unchanged by inclusion of the Kentucky levee.
114. The Claimants have presented insufficient evidence upon which an order could lawfully be issued, based either upon the existence of the Kentucky levee or upon the Department's or Caesar's location of cross-sections, to modify the Department's floodway delineation. The floodway delineation made by the Department and contained in Department Exhibit 1,D is approved under 310 IAC 6-1-8.
G. Jurisdiction of the Department of Natural Resources Over Vessel Traffic Resulting from a Construction Activity in a Navigable Water (the Ohio River)
115. On May 7, 1998, "RDI/Caesars' Motion in Limine and Supporting Brief" were caused to be filed. The "Claimants' Response to RDI/Caesars' Motion in Limine" was caused to be filed on May 19, 1998.
116. In the motion in limine, Caesar's argued the Department (and the Commission on administrative review) lack authority to regulate the vessels to be operated from facilities constructed in a floodway and navigable waterway. Caesar's contended the authority was limited under IC 14-28-1-22 to a "structure, obstruction, deposit, or excavation that is being erected, made, used, or maintained in the floodway."
117. In their response, the Claimants asserted their expert witness was expected to testify "that construction of the mooring facilities itself will endanger the mussel bed located at the proposed site." [Emphasis supplied by Claimants.] The Claimants additionally contended the "vessel proposed for this site and its operation are integral parts of the construction permit granted by the Department of Natural Resources. The project, including the operation of the vessel, must be analyzed in light of its potential damages to fish, wildlife and botanical resources. To act otherwise would overlook the precise purpose of the construction, which is the operation of a motor vessel."
118. In support of its argument, Caesar's cited Protho, Anderson, Read v. DNR, South Marina, 5 Caddnar 36 (1988). At issue in Protho was a permit under the Flood Control Act (then IC 13-2-22 and since recodified at IC 14-28-1) to authorize the placement of a marina in Trail Creek in LaPorte County. Protho speaks to the jurisdictional limitations of the Flood Control Act and concludes general social, human, and environmental implications cannot be considered in the permitting action. For this broad proposition Protho remains persuasive, but it is distinguishable from the instant proceeding.
[sic]118. Subsequent to Protho, the Indiana General Assembly enacted a new statutory section specifically providing for the permitting of activities in navigable waters. Public Law 75-1989 (then codified at IC 13-2-4-9) addressed the erection of structures in navigable waters and prescribed their erection if they would cause significant harm to the environment or pose a safety hazard. With the enactment of Public Law 1-1995, IC 13-2-4-9 was recodified at IC 14-29-1-8.
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119. In addition, IC 14-19-1-1(9) provides the Department is the state agency which has "general charge of the navigable water of Indiana." The Department is also the agency primarily responsible for boating safety. See IC 14-15.
120. Viewed together, these enactments make clear that the Department is responsible for considering the consequences to environmental resources and to public safety for activities within a navigable waterway. The Department may properly condition or deny a permit for the construction of a permanent facility, the consequence of which would be to enable vessel traffic to cause significant harm to the environment or threaten public safety.
121. In denying Caesar's motion, the Administrative Law Judge determined reasonable inquiry could be made at hearing into the likely environmental consequences of the operation of the riverboat anticipated to be operated from the facilities authorized by the subject permit. Testimony of this nature would be relevant to determining whether the erection of a permanent structure within the ordinary high watermark of the Ohio River (a navigable waterway) would cause significant harm to the environment in contravention of IC 14-29-1-8. This disposition is affirmed by the Commission.
H. Consideration of the Mussel Bed Located in the Ohio River At and Adjacent to the Site of the Subject Permit
122. A hearing was conducted in Jeffersonville as scheduled on May 28 and May 29, 1998 to receive testimony and other evidence as to whether there would be damage to a mussel bed, attributable to mechanical and general sources, resulting from the construction or maintenance of the facilities authorized by the subject permit.
123. As referenced in Finding 95, Claimants have the burden of proof to demonstrate the subject permit will result in unreasonably detrimental effects upon fish, wildlife, or botanical resources in contravention of the Flood Control Act. As more specifically applied here, the Claimants must show the subject permit will have unreasonably detrimental effects upon the natural resource offered by the mussel bed.
124. The mussel bed is approximately four miles long and located in the Ohio River between approximately River Miles 613.5 and 617.5. The mussel bed is 150 to 250 feet wide and traverses the Indiana-Kentucky state line. The density of mussels is not uniform. The upstream half of the bed has mussel densities of two to four times that of the lower half.
125. The facilities authorized by the subject permit include both the physical facilities to be constructed in the floodway and a riverboat to cruise from those facilities. The facilities would be located between approximately Ohio River Miles 616.9 and 617.4 at the downstream end of the mussel bed.
126. The facilities and vessel cruise route anticipated by the subject permit are contained in plans and information received by the Department's Division of Water on August 16, 1996; August 27, 1996; September 24, 1996; December 4, 1996; April 10, 1997; May 22, 1997; July 17, 1997; July 22, 1997; July 25, 1997; and July 30, 1997. DNR Ex. A-1.
127. Also anticipated is a cruise route for the gaming boat which is restricted to the Indiana waters of the Ohio River and which traverses approximately 0.1% of the mussel bed.
128. Barry A. Vittor, Ph.D., is an expert in marine biology and marine ecology and President of Barry A. Vittor & Associates, Inc. ("Vittor & Associates"), an environmental consulting firm concentrating on biological issues. Vittor & Associates has worked on numerous mussel surveys such as those that were conducted relative to the subject permit. During the feasibility and design stage, Vittor & Associates was retained by Caesar's to consult with it concerning mussel bed issues. Vittor works
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with Caesar's as the program manager, guiding the scientific approachand evaluation of information. Working with Vittor and under his direction on the mussel bed issues were Carl Way and Douglas Shelton, both of whom are mussel experts, as well as Tony Martin, their technical coordinator.
129. Vittor & Associates determined the boundary of the mussel bed toward the Indiana shoreline in the vicinity of the subject permit and the lower boundary of the bed. Vittor testified that a conservative approach was taken in determining the boundaries of the mussel bed, in that if a quadrant along a transect had no mussels but one was encountered toward shore, the mussel was considered to be part of the bed. Vittor also testified the mussel bed boundaries identified by Vittor & Associates are consistent with mussel bed boundaries mapped by Arthur Clark, Ph. D., for the Army Corps of Engineers in 1992 and 1994, as well as with densities and species composition identified by Williams and Schuster in a 1982 survey. Clarke, Williams, and Schuster have no relationship to the subject permit.
130. William D. Pearson, Ph.D., is a professor of biology at the University of Louisville who was employed by the Claimants as their consultant. His expertise is in fisheries biology, and he has supervised 20 Masters and eight Ph.D. students in aquatic biology. In addition, Pearson has reviewed several mussel surveys for the area, as well as documents regarding the proposed riverboat. Among projects Pearson has conducted are surveys of a mussel bed located in the vicinity of miles 616.8 to 617.4 of the Ohio River. Previously, he conducted a survey of mussels in the vicinity of miles 614.2 to 617.7 of the Ohio River for Five M Transportation Corporation in 1990.
131. Pearson testified the mussel bed at Ohio River miles 614.1 to 617.5 is the only major mussel bed in the Louisville area near the Falls of the Ohio. He also testified only about 5% of the Ohio River shoreline is conducive to mussel beds, and the mussel bed at the site cannot be relocated.
132. Although the geographical descriptions of the mussel bed by Vittor & Associates and by Pearson were not identical, they did not significantly differ. During his 1997 survey, Pearson did identify one mussel close to the Indiana shore, but he testified the mussel was not part of the mussel bed and that it was not unusual to find stray mussels throughout the river. Vittor testified the boundary determined by Pearson was consistent with the boundary determined by Vittor & Associates.
133. Vittor testified that Vittor & Associates conducted quantitative surveys of the mussel bed in July 1995, October 1996, and September 1997. The surveys have been supplemented with qualitative collection work. A qualitative study is not statistically oriented, while a quantitative study measures specific size quadrants and collects every mussel in every quadrant, so that quantitative studies are statistically oriented. In addition to determining the relevant mussel bed boundaries, the purposes of the 1995 and 1996 studies were to determine whether there were any endangered species in the area of the subject permit and to quantitatively determine the species composition and abundance and density of mussels in the bed. The primary purpose of the 1997 survey was to set the baseline conditions for the five-year mussel bed monitoring program that IDEM required in issuing a Section 401 water quality certification at the site. To do so, Vittor & Associates chose twelve transects and sampled at four locations on each transect (for a total of 48 survey stations) and catalogued the mussels at each station. The survey also looked for endangered species, species composition, density, and abundance and confirmed the mussel bed boundaries Vittor & Associates had mapped previously.
134. Gary Jordon, an environmental biologist for the Department, testified he consulted with the Department's mussel expert, Brant Fisher, in determining whether the subject permit would result in unreasonably detrimental effects on the mussel bed. He also reviewed all of the mussel bed surveys available before making the initial determination to grant the subject permit.
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These surveys were two from Vittor & Associates (1995 and 1996), Clarke's 1992-1994 survey, the 1982 survey by Williams and Schuster, and Pearson's 1990 qualitative study. In addition, Jordon reviewed literature, including U.S. Army Corps of Engineers studies on the effects of river navigational traffic and sediment on mussel beds, as well as the permit application materials, including construction plans and cruise routes.
135. Pearson, Vittor, and Jordan each testified about the mussel surveys conducted before the initial determination to issue the subject permit and whether those surveys identified endangered species in the bed. They agreed no live or fresh-dead mussel species were found which were listed either by the federal government or by Indiana. They agreed that finding a fresh-dead shell indicates the likely presence of a live mussel of the same species. Vittor also testified that finding a dead mussel in a mussel bed does not necessarily mean the live mussel lived in the bed or that another live mussel of the species now lives in the bed. The Ohio River current moves dead mussel shells, so the dead shell could have been deposited by the current in the bed where it was found, although the live species never lived there. Pearson, Vittor, and Jordon generally agreed on what a fresh-dead mussel looks like and how to identify one.
136. Pearson testified two specimens of sub-fossil dead clubshell mussels (Pleurobema clava) were found. The clubshell mussel is on the federal endangered species list, and, as a matter of law, also on the Indiana endangered species list. IC 14-22-34. He testified that a sub-fossil dead is a mussel which has been dead in the order of five to 20 years. On cross-examination, Pearson said the existence of a sub-fossil dead shell is an indication of the possibility the species was present in the area. Pearson found no other species listed by the federal government or Indiana, although he did find two specimens of a species listed as endangered in Kentucky.
137. Vittor testified finding a sub-fossil represents a very remote possibility a live mussel of the species is present in the bed, and it is very unlikely that one would be encountered.
138. Jordon testified the Department looks for live and fresh-dead species in reviewing mussel bed surveys because those would be indicators of live mussels of those species in the bed. He further testified the Department is not as concerned about sub-fossil shells because decades may have passed since a live species of the same species was in the bed.
139. The evidence does not support a finding that a mussel species listed as endangered by the federal government or Indiana is likely to be present at the site of the subject permit. Specifically, location of a sub-fossil clubshell mussel is insufficient to establish the likely presence of a live clubshell within the mussel bed. The listing of a mussel by Kentucky has neither factual nor legal significance to Indiana waters or to the subject permit.
140. Pearson testified he believes any additional "stressors" on the mussel bed will be harmful to the mussel bed. Vittor agreed that it probably is not a good idea to add stressors to the bed and that increased siltation can pose a problem. Issues were presented at hearing as to whether it is likely the potential stressors which occasioned by the subject permit are likely to have an unreasonable detrimental effect upon the mussel bed.
141. Pearson identified four potential
"stressors"
which he believed might impact the mussel bed as a result of activities authorized by the
subject
permit:
Sedimentation from construction and dredging in the Ohio River.
Dislodging mussels from the bed during dredging operations.
Disruption from operation of the riverboat.
Changes in the currents of the Ohio River resulting from activities anticipated by the subject permit.
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142. With respect to sedimentation caused by construction and dredging in the Ohio River, the subject permit requires a turbidity curtain be placed to fully envelope the dredging area used during construction in the waterway. In addition, there must be a contingency plan to halt all channel work if the curtain fails. Caesar's is using a Type II turbidity curtain which is composed of impermeable polyvinyl sheeting. The curtain has a floatation boom along the top to keep it suspended at or above the surface of the Ohio River and a weighted boom that keeps the curtain in contact with the River bottom. The curtain is 30 feet high and sits like an "accordion" when the water level is below 30 feet so that it can rise as the water level increases. Construction and dredging cannot occur if the water level is too high or the current too strong for the turbidity curtain to effectively contain sediment caused by construction within the waterway.
143. At hearing, Pearson read a warning from the product literature for the turbidity curtain which noted if the turbidity curtain is anchored to the river bottom, sediment may be captured. When the curtain is removed, the consumer must be careful not to lose the accumulated sediment. Caesar's indicated it was aware of the warning, and before removing the curtain, its contractors would remove any accumulated sediment and dispose of the sediment at an off-site location.
144. Pearson testified his only experience with a turbidity curtain was the one currently being used for the subject permit, and he could not speak as to the effectiveness of the curtain. Vittor testified he has worked with turbidity curtains, and they are effective means for keeping sediments from mussel beds.
145. The evidence does not support a finding the turbidity curtain is unlikely to control sedimentation from construction and dredging in the Ohio River. To the contrary, the preponderance of evidence supports a finding that, properly placed and maintained, the turbidity curtain is likely to be an effective means for sedimentation control.
146. With respect to dislodging mussels from the mussel bed, testimony was unrefuted that all the construction and dredging activity authorized by the subject permit would be outside of the boundary of the mussel bed as delineated by Vittor & Associates, so the mussel bed will not be directed impacted or excavated by the construction and dredging activities. The turbidity curtain must be placed in the transition zone between the waterway construction and the mussel bed so that it is not placed over the mussel bed. When construction occurs in the waterway, the sediment curtain segregates the construction activity from the mussel bed. The work is to be performed from boats anchored inside the curtained area, so the mussel bed is protected from both curtain installation and removal activities. The subject permit is designed to prevent mussels in the mussel bed from being dislodged during dreding operations.
147. With respect to disruption to the mussel bed from operation of the riverboat, the evidence was in dispute. Pearson testified the large riverboat to be operated by Caesar's would cause a "fairly great draft" of eight to ten feet, placed over a river with a maximum depth of ten to 15 feet, and would result in significant effects to current patterns near the river bottom. He testified that simply mooring the boat might either significantly increase the speed or cause the cessation of currents next to the bottom. A direct effect could result to ream and their supply of oxygen and nutrients, but probably more importantly it could change the depositional-erosional cycle in the local area. He testified that disturbance to a mussel, even by the mere passage of a shadow over the mussel, would tend to cause the mussel to close and cease filtering for food. Regular disturbances could cause a significant reduction in growth rates of individual mussels. Pearson testified the U.S. Army Corps has performed studies which indicate river navigational traffic can cause sedimentation and harm mussel beds.
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148. Vittor testified studies by the Army Corps showed a concentration of 600 to 750 milligrams per liter of suspended sediment could interrupt or reduce the feedingbehavior of mussels. On the other hand, studies showed vessel passage was likely to cause onlyan increase in suspended solids from 25 to 50 milligrams per liter, and he testified no studies documented a negative impact to mussel beds from an increase in suspended solids even in therange of 50 to 60 milligrams per liter. He testified that although studies indicate vessel traffic on rivers generally does increase suspended solids, the duration of the increase is short and the magnitude of increased solids is low. No study has demonstrated the low increase in suspended solids that can be caused by vessel traffic is sufficient to harm a mussel bed. Vittor testified that, with the proposed cruise route, the area of impact by the riverboat would be the least populous downstream portion of the mussel bed. The productive and most distinct part of the mussel bed is the upper region, which is removed from the site to be impacted by the subject permit. He testified any impact to the lower part of the bed would have no likely impact on the upper part of the bed.
149. Jordon testified that only a few studies had been performed as to the possible impact of vessel traffic upon mussel beds, and those studies were inclusive. Applying a conservative approach, the cruise route was one of the critical factors the Department used in determining whether the subject permit would result in unreasonable detrimental effects upon the mussel bed. Originally the cruise route would have traversed a greater portion of the mussel bed than what is now envisioned. He said the current route, traversing approximately 0.1% of the mussel bed, was unlikely to have a significant impact. Jordon testified the current cruise route was not made a condition of the subject permit, although Caesar's agreed to the current cruise route as part of the project description.
150. John Baker, an engineering expert with considerable marine experience, testified he recently conducted a Cruising Impact Study for Caesar's. The study was performed as a condition of a Section 404 permit issued by the U.S. Army Corps of Engineers. The purposes were to study the riverboat and determine whether its operation would cause sedimentation or force that would impact the mussel bed.
151. Baker testified the riverboat has hull dimensions at the waterline measuring 88 feet wide and 450 feet long. An independently-controlled azimuth-thruster propulsion system has been mounted at each corner of the hull. These systems do not protrude below the bottom of the hull but rather are recessed in a well which has a line of thrust approximately three feet above the bottom of the vessel hull. The loaded draft is eight feet, placing the line of thrust at a position approximately five feet below the waterline. The thrust vector is horizontal and is not a conventional thrust angling downward.
152. Baker testified that to determine any impacts on the mussel bed, the existing sediment load for the Ohio River at the site of the subject permit must be taken into account. The soil is a cohesive clay and not easily erodible or cut, making additional sedimentation less likely. Approximately 23,300,000 cubic yards of sediment is transported past the site each year, but discharge levels are variable, and one flood event might account for one-third of the annual suspension.
153. According to Baker, the normal low water pool elevation is 383 feet, NGVD, with a median pool greater than 393 feet. The dredging approved by the subject permit is designed to a depth of 373, NGVD, which provides a navigable depth of 17 feet more than 50% of the time, with no less than ten feet of navigable depth during periods of low water conditions. As testified by Vittor and Pearson, the boundary for the mussel bed begins at approximately the elevation of 369 feet. During the median pool elevation, the depth of water over the mussel bed in Indiana waters is 21, and the depth is 14 feet during low waters. Because the line of thrust generated by the riverboat is five feet below the waterline 50% of the time, the
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resulting line would be 16 feet above the mussel bed during the median pool and nine feet above the mussel bed during low water.
154. Baker testified that each drive on the riverboat is capable of generating 1,000 horsepower at 1,200 RPMs, but due to the short approved cruise route (1,700 feet), the operating plan rarely requires fully developed horsepower for any of the drive units. Instead, the drive units will be engaged at relatively low RPMs for short periods of time. Using generally accepted engineering standards and based upon this information, Baker determined the maximum generated thrust from each drive unit would be 17,500 pounds. A thrust vector dissipates on a plane of one to five, so the horizontal line of thrust from the riverboat would intersect the river bottom approximately 100 feet from the vessel. At that distance, based on standard generally-accepted engineering principles, the area of energy generated by the thrust plume is insufficient to dislodge mussels. The sediment resuspension and impact capabilities of the thrust plume would be de minimis.
155. Considering Baker's greater professional expertise relative to the engineering dynamics of thrust plumes from a vessel, and the greater specificity of his analysis of the likely impact of the thrust plume from the riverboat to be used according to the subject permit, his testimony in this regard is found more persuasive than the testimony by Pearson.
156. Disruption from operation of the riverboat, at least within the proposed current cruise route, is unlikely to result in an unreasonable detrimental effect to the mussel bed. Because the integrity of protections to the mussel bed provided by the subject permit is in some measure dependent upon its maintenance, however, the cruise route should be made specifically a condition of the permit.
157. With respect to potential changes in the currents of the Ohio River, Pearson testified he did not know whether those changes would negatively or positively impact the mussel bed. Pearson has not determined what River current changes, if any, might occur as a result of activities authorized by the subject. Even so, he expressed concerns for what he saw as a lack of certainty as to these impacts.
158. Baker testified that the riprap Caesar's is adding to the bank will protect the bank from erosion and control sedimentation. Based upon his practical and engineering experience, he testified the riprap would not measurably impact the Ohio River current. Vittor testified field studies indicated vessel passage has no significant impact on the current regime.
159. There is no probative evidence to support a finding the subject permit is likely to result in changes to the currents of the Ohio River and adversely impact the mussel bed. Even taken in the light most favorable to the Claimants, the evidence suggests at most a lack of certainty as to possible changes in currents. The subject permit cannot properly be denied or further conditioned on this speculative basis.
160. Pearson also testified as to general concerns for mussels and mussel beds in the Ohio River. Beyond the four stressors specifically referenced relative to the subject permit, he noted with alarm the degradation which has occurred in recent decades. Pearson reflected that a scientific survey in 1968 located 91 major mussel beds in the lower two-thirds of the Ohio River, but in 1982 there were only 71 remaining. In 1993, the American Fishery Society reported that of the 300 species of freshwater mussels in Eastern North America, only 70 species could be considered to have stable populations not in decline. Art Bogan, a "premier malacologist" wrote in the Journal of American Society of Zoology that the family of unionid mussels was poised on the brink of a major and widespread extinction.
161. Pearson testified this general decline has been attributed by scientists to an accumulation of factors.
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The environmental requirements of mussels are very narrow. They apparently need a "nice coarse substrate, gravel, coarse sand or something of this nature." This environmental niche has been damaged by the impoundment of rivers, whichcauses pooling so that in the summer silt settles. Fish hosts are needed to distribute the young stage of mussels, glochidia, and individual mussel species require particular fish species for transport of their glochidia. As a result, the loss of species diversity among fish has had an adverse impact upon many mussel species. Runoff from agriculture and other sources has added silt and clay that settle out in the Ohio River and smother mussels. Pearson testified that gravel removal and other forms of river dredging have also had an adverse impact by disturbing mussel habitats. Over-harvesting of mussels was also seen as a factor, as well as general vessel traffic in the river. He testified that more recently, competition from an exotic species of mussel, the zebra mussel, has been significant to the decline of native mussels.
162. Vittor generally agrees with the analysis by Pearson as to factors causing the overall degradation to mussels and mussel beds in the Ohio River. As referenced previously, Vittor does not agree studies are conclusive as to the role of vessel traffic. In addition, Vittor may place a greater emphasis upon the role of zebra mussels than does Pearson. Jordon also testified that the Department was concerned with the general health of mussels in Indiana.
163. Vittor and Pearson agree that the mussel bed traversed by the subject permit includes 20 live species and several dead ones. The upper and middle portions of the bed are stable and reproducing. The lower portion is deteriorating. Vittor also testified that zebra mussels have the potential to destroy the bed. 164. Pearson testified that no changes could be made to the subject permit, at least none that he could imagine, which would be sufficient to protect the mussel bed to his satisfaction. He testified he was also aware that a monitoring plan was required by IDEM following the completion of construction, and Caesar's might be required to provide remediation and to modify the cruise route if the monitoring plan disclosed damage to the mussel population. Even so, no type of monitoring plan would be satisfactory to him.
165. Pearson's concerns for the general condition of mussels in the Ohio River and the Eastern United States cannot be easily dismissed. The concern is seemingly shared by the experts for the Department and for Caesar's. Consistently applied, however, Pearson would establish a moratorium on construction in proximity to all mussel beds within the Ohio River. Even assuming for the sake of argument that such a moratorium could be scientifically justified, the subject permit does not present a proper mechanism for its implementation. A moratorium applied to an individual applicant would be neither equitable nor effective for wildlife preservation. Rule adoption is the mechanism for broad policy determinations. If justified, the Commission could adopt new or modified rules to extend protections to mussels, either in its broad management role for wild animals under IC 14-22-2-6, or, more particularly, its role for endangered species under IC 14-22-34-13.
FOOTNOTES:
(1) The Department and Caesar's are collectively referred to as the "Respondents." HEC, SOR, and PORE are collectively the "Claimants."
(2) Neither was the Department a party to a proceeding before the Office of Environmental Adjudication. Caesar's does not, however, seek to invoke the doctrine of administrative collateral estoppel against the Department.
(3) During a subsequent prehearing conference, HEC reported that it had elected not to take judicial review of the decision by the Office of Environmental Adjudication.
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(4) Robert Mullins states in paragraph 5 of his Affirmation that a FEMA floodway has been
delineated for Jefferson County, Kentucky. "That floodway delineation has been changed by
the
delineation conducted by Thompson Engineering without FEMA approval."
The thought process followed by Mullins to reach this conclusion is at best translucent.
Neither Thompson Engineering nor the Department can modify a FEMA floodway. As reflected
in Yater, the authority to modify a FEMA floodway in Indiana rests with FEMA. The
Department cannot recalculate a FEMA floodway located in Kentucky. Yet the subject permit is
for a site in Indiana and not for one in Kentucky. How would the floodway delineations by
Thompson Engineering and the Department in Indiana have any legal impact on a FEMA
floodway in Kentucky? If the Claimants contend the floodway delineation in Indiana will, as
a
factual matter, require recalculation of the FEMA floodway in Kentucky, their claim must be
properly addressed to FEMA. Paragraph 6 of the Mullins Affirmation suffers a similar underlying infirmity.