Content-Type: text/html Cause #: 98-207w.v8.html

CADDNAR

[CITE: Schultef, et al v. J.W. Jones & DNR, 8 CADDNAR 95 (1999)]

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Cause #: 98-207W
Name: Schultef, et al. V. J. W. Jones and DNR
Administrative Law Judge: Lucas
Attorneys: Hogan; Nardi; Coffey
Date: January 6, 1999

ORDER

On December 3, 1998, a "Petition for Review and Stay" was filed by the Claimants to initiate this proceeding. On December 28, 1998, the "Department's Motion to Dismiss for Failure to Qualify for Review Under Ind. Code 4-21.5-3-7" was filed. As memorialized in a "Report of Prehearing Conference and Notice of Second Prehearing Conference" entered on December 29, 1998, the Claimants were provided until January 12, 1999 to respond to the motion to dismiss. On January 4, 1999, the Claimants filed their "Supplement to Petition for Review and For Stay." Being duly advised, the motion to dismiss is now granted for the reasons set forth below:

FINDINGS OF FACT

1. This proceeding is governed by 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.

2. The statutory prerequisites for a petition for administrative review are set forth in IC 4-21.5-3-7(a), which provides in pertinent part:
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. A petition for administrative review that does not meet the prerequisites of IC 4-21.5-3-7(a) does not qualify the petitioner for administrative review. Pursuant to 312 IAC 3-1-9(b)(3), an administrative law judge may dismiss a petition for review if "[t]he person seeking administrative review does not qualify for review under IC 4-21.5-3-7."

4. As applied to the instant proceeding, the "order" of the Department of Natural Resources (the "Department") is Permit FW-19,228 issued to J. W. Jones ("Jones"). IC 4-21.5-1-8 and IC 4-21.5-1-9. Since the "order" or permit is issued to Jones, the permit is not specifically directed to the Claimants. Neither have the Claimants alleged they are entitled to review under any law other than the AOPA. As a result, the Claimants may obtain administrative review only if they qualify under IC 4-21.5-3-7(a)(1)(B).

5. An essential element of IC 4-21.5-3-7(a)(1) is that a person must state facts demonstrating qualification for administrative review. An examination of the petition for review filed by Claimants on December 3, 1998 is totally devoid of the factual basis required by statute. Other than a bold assertion they are aggrieved by the issuance of Permit FW-19, 228 to Jones, the request provides no information as to the basis averred for Claimants' standing to complain, the substantive permit terms at issue, or even the law alleged to have been violated.

6. Without the required statement of facts in their petition, the Claimants failed to show they have a legal interest that is or will be adversely affected by the Department's decision to issue Permit FW-19,228. They have not provided a factual basis upon which a person might

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reasonably conclude they are "aggrieved or adversely affected" by the order. 7. The "Petition for Review and Stay" filed by the Claimants on December 3, 1998 fails to make the factual showing necessary and required by IC 4-21.5-3-7(a) to qualify them for administrative review.

8. On January 4, 1999, the Claimants filed their "Supplement to Petition for Review and for Stay." A petition for administrative review that fails to meet the prerequisites of IC 4-21.5-3-7(a), as did the "Petition for Review and Stay" filed in this proceeding, cannot be rehabilitated by a supplemental pleading. Failure to comply with the statutory prerequisites for administrative review of a decision by the Department deprives the Commission and its Administrative Law Judge of jurisdiction over the case and over the subject-matter.

9. Even assuming the "Supplement to Petition for Review and for Stay" is within the jurisdiction of the Commission and its Administrative Law Judge to consider, however, the Claimants again fail to invoke that jurisdiction. The "Supplement to Petition for Review and for Stay" itself fails to meet the statutory prerequisites of IC 4-21.5-3-7(a).

10. Apart from the bold assertion the Claimants are "aggrieved or adversely affected" by issuance of Permit FW-19,228, the "Supplement to Petition for Review and for Stay" is devoid of facts to support their claim of standing to complain.

11. Additionally, the "Supplement to Petition for Review and for Stay" fails to state a legal basis upon which relief can be granted. An Indiana state administrative agency has only those powers conferred by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist. 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 Commission is not a court of general jurisdiction. There is no citation in the "Supplement to Petition for Review and for Stay" to a statute, rule, or other law which would confer in the Commission the power to act.

12. Even assuming the Commission and its Administrative Law Judge might properly consider the "Supplement to Petition for Review and for Stay," the document fails to make the factual showing necessary and required by IC 4-21.5-3-7(a) to qualify the Claimants for administrative review.