Indiana Dept. of Natural Resources v. United Refuse Co., Inc., 49S02-9306-CV-619

• Docket Nº: No. 49S02-9306-CV-619
• Citation: 615 N.E.2d 100
• Case Date: June 09, 1993
• Court: Supreme Court of Indiana

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615 N.E.2d 100 INDIANA DEPARTMENT OF NATURAL RESOURCES and Indiana Natural
Resources Commission, Appellants-Respondents,
v.
UNITED REFUSE COMPANY, INC., Appellee-Petitioner,
Indiana Division, Izaak Walton League of America, Inc.,
¹ Intervening Respondent. No. 49S02-9306-CV-619. Supreme Court of Indiana. June 9, 1993.

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Pamela Carter, Atty. Gen. of Indiana and Mathew S. Scherschel, Deputy Atty. Gen., Indianapolis, for appellants-respondents Indiana Dept. of Natural Resources and Indiana Natural Resources Com'n.

George M. Plews, Sue A. Shadley, and Donn H. Wray, Plews & Shadley, Indianapolis, for appellee-petitioner United Refuse Co., Inc.

ON PETITION TO TRANSFER

KRAHULIK, Judge.

United Refuse Company, Inc. ("United") seeks transfer after the Court of Appeals reversed the trial court's judgment vacating the order of the Natural Resources Commission ("NRC"), a subdivision of the Indiana Department of Natural Resources. ² Indiana Dep't. of Natural Resources v. United Refuse Co. (1992), Ind.App., 598 N.E.2d 603. The NRC's order denied United's request for a floodway construction permit.

FACTS

United operates a sanitary landfill in Allen County, Indiana, on an approximately 100 acre tract of land which it owns. The property is bounded by Junk Ditch on the north and west, the Norfolk and Western Railroad on the south, and Smith Road on the east. Power lines divide the property into two sections, a southern section ("South Property") and a northern section ("North Property"). The South Property, roughly seventy acres, is presently used by

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United in its landfill activities. The roughly thirty acres of North Property, however, is not presently used for landfill activities.

In the 1970's, United received approval from the NRC to conduct landfill operations on the South Property, but the NRC disapproved of landfill activities being conducted on the North Property. In 1985, United submitted another application to the NRC to construct an earthen dike on the North Property in a floodway and expand its landfill operations to the North Property. The NRC denied the application.

United filed a petition for administrative review. Following a hearing, the administrative law judge ("ALJ") issued a report, proposed findings of fact, and a recommended order. Objections to the report were timely filed. After hearing oral argument on the objections, the NRC affirmed the ALJ's order and adopted without change the order as the final NRC order.

United sought judicial review of the final NRC order in the trial court. After a hearing, the trial court issued findings of fact, conclusions of law and judgment. In reversing and vacating the NRC order, the trial court determined that the ALJ failed to serve as the trier of fact because, in assessing the NRC's initial determination, the ALJ improperly used a standard of appellate review. Additionally, the trial court determined that the NRC lacked jurisdiction over United's property because the area involved did not meet the statutory definition of "floodway."

The NRC raised four issues in its appeal to the Court of Appeals. The NRC claimed that the trial court exceeded its authority by issuing factual findings which conflicted with those issued by the NRC, that United had failed to carry its burden of proof, and that the NRC's findings and conclusions were supported by substantial evidence. The Court of Appeals reversed the trial court and affirmed the NRC's order in its entirety. In reaching its conclusion, the Court of Appeals held that (1) United failed to meet its burden of proof, (2) the order was supported by substantial evidence, (3) United was not deprived of due process, and (4) that the findings were sufficient to determine that the North Property was within a "floodway."

In its petition to transfer, United challenges the NRC's jurisdiction over the North Property and asserts that the ALJ did not conduct a de novo hearing of the evidence, but rather improperly used a standard of appellate review in the administrative hearing. We grant transfer to address these issues. ³

JURISDICTION

United asserts that in order for the NRC to have jurisdiction over the North Property, the property must meet the statutory requirements of being within a "floodway." The legislature has defined "floodway" as "the channel of a river or stream, and those portions of the flood plains adjoining the channel, which are reasonably required to efficiently carry and discharge the flood water or flood flow of any river or stream." Ind.Code Ann. Sec. 13-2-22-3(12) (West 1990). United asserts that the NRC lacks jurisdiction because the North Property is not necessary for the efficient carry and discharge of water. The NRC asserts that the North Property meets the statutory definition of "floodway" and, therefore, jurisdiction is proper. Additionally, the NRC states it is improper for an appellate court to reweigh the evidence.

We have considered the arguments on this issue and conclude that the Court of Appeals correctly decided it. Therefore, pursuant to Indiana Appellate Rule 11(B)(3), we adopt and incorporate by reference the Court of Appeals' opinion as follows:

United also argues that the NRC's characterization of the North Property as a "storage floodway" is dispositive of this issue because unless the property at issue is located in a "floodway," the NRC has no jurisdiction to grant United a construction permit. We note that United

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correctly asserts that the controlling statute uses only the terms "floodway" and "flood plain," and not "storage floodway." See Ind.Code Secs. 13-2-22-3(11) and (12). Here, however, the ALJ did not find that the North Property was a "storage floodway," but rather found that according to the 100-year flood criterion, the water level would rise up and over the edge of the flood basin and water would then run down in the opposite direction; this finding is sufficient to show that the North Property is a floodway, and that this floodway is required to "carry and discharge" the flood flow efficiently. See Ind.Code Sec. 13-2-22-3(12); Ind.Code Sec. 13-2-22-13(d); Record at 774-75. ⁷

Therefore, the NRC had jurisdiction to require United to obtain a permit for construction on the North Property, and United's contentions to the contrary are simply requests for us to reweigh the evidence, which we may not do. See [Hamilton Co. Dept. of Pub. Welfare v. Smith (1991), Ind.App., 567 N.E.2d 165, 167-68]. Any extra findings which the ALJ made which were irrelevant to the resolution of this issue were mere surplusage, which do not affect the validity of his decision. Cf. [Hardesty v. Bolerjack (1982), Ind.App., 440 N.E.2d 490, 493] (findings required to be sufficiently detailed to allow for...