cause #: 98-132W
Name: Mayer v. Lucas, Holcomb, and Mead, and DNR
Administrative Law Judge: Lucas
Attorneys: Mayer, pro se; Woodward; Stefanovich
Date: January 8, 1999
ORDER
You are notified the Administrative Law Judge, acting as the "ultimate authority" pursuant to IC 14-34-2-2(b), now dismisses this proceeding.
FINDINGS OF FACT
A prehearing conference was held in this proceeding on August 21, 1998. As memorialized in a "Report of Prehearing Conference" entered on August 24, a schedule was agreed by the parties, then ordered by the Administrative Law Judge, for briefing a motion to dismiss anticipated from the Department of Natural Resources. According to the schedule, the Department was provided until September 21, 1998 to file a motion to dismiss. Paul J. Mayer, for the Concerned Citizens of Cedar Creek Township, was provided until October 21, 1998 to file any response to the motion.
On September 21, 1998, the "Department of Natural Resources' Motion to Dismiss" and "Memorandum in Support of Department's Motion to Dismiss" were filed. On September 24, 1998, the Department provided its "Notice of Filing of Original Affidavit for Department of Natural Resources' Motion to Dismiss."
No response has been filed by Paul J. Mayer. Neither has the respondent, Lucas, Holcomb and Mead, made any filing pertaining to the motion.
Being duly advised, the "Department of Natural Resources' Motion to Dismiss" is granted for the following reasons:
1. On May 13, 1998, Lucas, Holcomb and Mead (Applicant), through its agent, John B. Richardson, sought a license under IC 14-28-1 (sometimes referred to as the "Flood Control Act") for the construction of an eight-inch diameter sewer line, a manhole, and a sixteen-inch water line in the floodway of Cedar Creek near Lowell in Lake County, Indiana. The application was designated FW-19,017 by the Department of Natural Resources (the "Department"), Division of Water.
2. As agent for the Applicant, John Richardson sent a letter and public notice by certified mail to landowners adjacent to the site where activities were sought to be authorized. Included among those adjacent landowners was the Claimant, Paul J. Mayer. Richardson Affidavit (September 21, 1998). In these communications, Mayer was informed the Applicant would file a permit application and that Mayer could request the Department to notify him in writing when a permit for the project was either issued or denied.
3. Mayer received the letter and public notification on May 6, 1998. Department's Exhibit A-4(d), domestic return receipt.
4. The Department did not receive a request from Mayer that he be notified of Department action on the permit application. Andrea Gromeaux Affidavit (September 21, 1998).
5. On June 26, 1998, the Department issued a "Certificate of Approval" for construction in the
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floodway as sought by the Applicant in FW-19,017 (the "subject permit").
6. The subject permit was mailed by the Department on July 1, 1998.
7. On July 25, 1998, Mayer filed his request for administrative review to initiate this proceeding under IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") and 312 IAC 3-1 (a multisection rule adopted by the Natural Resources Commission (the "Commission") to assist in its implementation of the AOPA).
8. A petition for administrative review of the Department's issuance of a permit under the Flood Control Act must ordinarily be filed within 18 days after the permit is mailed. IC 4-21.5-3-7(a)(3) and IC 4-21.5-3-2. South Central Community Mental Health Centers, Inc. v. DNR and Jones, 7 Caddnar 114 (1996). Buckley v. DNR and Lake County Highway Department, 8 Caddnar 20 (1997).
9. In South Central Community Mental Health Centers, Inc., South Central received notice that Jones had filed a permit application with the Department and that adjacent landowners, including South Central, could request to be notified when the Department made a decision on the permit application. South Central did not request administrative review until after expiration of the 18-day time limitation, and the case was dismissed by the Commission.
10. Similarly, in the instant proceeding, Mayer filed his request for administrative review after expiration of the 18-day period from mailing of the subject permit. Mayer offers no justification for late filing.
11. Where a request for administrative review is not timely under the AOPA, the Commission lack subject-matter jurisdiction to provide review. The Department seeks to address lack of subject-matter jurisdiction with a motion to dismiss that is supported by affidavits. Generally, the submissions of affidavits 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. Foshee v. Shoney's, Inc., 637 N.E.2d 1277, 1280 (Ind. 1994), Hoosier Environmental Council v. RDI/Caesar's Riverboat Casino, LLC and DNR, 8 Caddnar 48, 54 (1998).
12. Based upon unrefuted affidavits, the request for administrative review filed by Mayer is found to be untimely. The motion to dismiss must be granted in favor of the Department and against Mayer.