Izaak Walton League v. Dekalb County

• Decision Date: 18 July 2006
• Docket Number: No. 02A05-0509-CV-539.,02A05-0509-CV-539.
• Citation: 850 N.E.2d 957
• Parties: IZAAK WALTON LEAGUE OF AMERICA, INC., Cedar Creek Wildlife Project, Inc., Appellants-Petitioners, v. DEKALB COUNTY SURVEYOR'S OFFICE, Indiana Department of Natural Resources, Appellees-Respondents.
• Court: Indiana Appellate Court

850 N.E.2d 957

IZAAK WALTON LEAGUE OF AMERICA, INC., Cedar Creek Wildlife Project, Inc., Appellants-Petitioners, v. DEKALB COUNTY SURVEYOR'S OFFICE, Indiana Department of Natural Resources, Appellees-Respondents.

No. 02A05-0509-CV-539.

Court of Appeals of Indiana.

July 18, 2006.

COPYRIGHT MATERIAL OMITTED

David C. Van Gilder, Van Gilder & Trzynka, P.C., Fort Wayne, IN, Attorney for Appellant.

Derald D. Kruse, Auburn, IN, Attorney for Appellee, DeKalb County Surveyor's Office.

Steve Carter, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee, Indiana Department of Natural Resources.

OPINION

BARNES, Judge.

Case Summary

Izaak Walton League of America, Inc. ("Walton") and Cedar Creek Wildlife Project, Inc. ("Cedar Creek") appeal the trial court's dismissal of their petition for judicial review of a decision by the Natural Resources Commission ("NRC"). We reverse and remand.

Issue

Walton and Cedar Creek raise several issues, which we combine and restate as whether the trial court properly concluded that it lacked subject matter jurisdiction to consider their petition for judicial review.

Facts

On September 12, 2001, the Department of Natural Resources ("DNR") issued a permit to the DeKalb County Surveyor's Office ("DeKalb County") to remove two logjams from Cedar Creek in DeKalb County. On October 5, 2001, Walton, Cedar Creek, and four individuals filed with the NRC a petition for administrative review and stay of the DNR permit to DeKalb County. DNR and DeKalb County moved for summary judgment on the question of whether the parties had standing and whether the permit was issued in accordance with statutory and regulatory guidelines. On May 24, 2002, an administrative law judge ("ALJ") entered an "Amended Interlocutory Order" on the summary judgment motions and held that all but one of the petitioners had standing. It also concluded as a matter of law that DNR had properly considered and analyzed one portion of the statute governing the permit at issue, but that there remained a question of fact as to whether DNR had complied with a separate subsection of the statute. Specifically, the ALJ believed there was a question of fact regarding whether DNR had properly considered the "cumulative effects" of granting the logjam removal permit, as is required by Indiana Code Section 14-28-1-22(f).

The ALJ set the matter for an evidentiary hearing. While the case was pending, the logjams were removed from Cedar Creek pursuant to the permit. DNR and DeKalb County moved to dismiss, alleging the petition challenging the permit now was moot. On September 24, 2002, the ALJ issued an order denying the motion to dismiss, considering the issue before the NRC to be "of great public importance and. . . likely to recur. . . ." App. p. 39. On July 23, 2003, the ALJ conducted an evidentiary hearing on the "cumulative effects" question. On October 10, 2003, the ALJ entered preliminary findings of fact and conclusions thereon. Relating evidence received during the evidentiary hearing, the ALJ determined DNR, in part, had not fully considered the "cumulative effects" of the granting of the permit as required by statute and an accompanying regulation defining the phrase "cumulative effects." The permit was to be remanded to the DNR to "determine the impacts which result from the incremental impact of the Permit action when added to other past and present actions," as required by law, and to document its determinations in writing. Id. at 43.

On May 3, 2004, a committee of the NRC adopted as a final order the ALJ's findings and conclusions in their entirety, with the exception of two minor corrections. On June 2, 2004, Walton and Cedar Creek filed a verified petition for judicial review of the NRC's final order. The specific allegation of error in the petition was as follows:

Petitioners have been prejudiced by the Final Order because that Order is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Specifically, the Natural Resources Commission remanded the permit back to the agency, finding that the DNR failed to determine the cumulative effects of the permit issuance, yet the NRC failed to invalidate the permit. In effect, the NRC found that the agency did not follow the statutory requirement for issuance of a permit for construction in a floodway, but its order does nothing to remedy the unlawfully issued permit.

App. p. 30.

Walton and Cedar Creek requested preparation of an agency record from NRC. The request specified, among other things, a transcript of the July 23, 2003 hearing before the ALJ, along with all exhibits offered at the hearing, a copy of the 2002 "Amended Interlocutory Order," and the NRC's final order and accompanying findings and conclusions. After receiving extensions of time to file the agency record, Walton and Cedar Creek filed it on November 10, 2004. The record contained only the items specifically requested by Walton and Cedar Creek.

On May 16, 2005, DNR filed a brief on the merits of Walton and Cedar Creek's petition for judicial review. On that same date, it also filed a "Motion to Accept Additional Documents from the Administrative Record." Id. at 397. The motion claimed Walton and Cedar Creek had failed to request inclusion of certain statutorily-required documents in the NRC record. The motion concluded:

The failure to provide the entire administrative record is a jurisdictional defect which renders this Court without jurisdiction over this case. . . . Wherefore, in the event that this Court should continue to hear this case in spite of the jurisdictional defect, the Department requests that this Court accept the attached Supplemental Record of additional documents from the administrative record in this cause, records which should have been on file before any exercise of jurisdiction by this Court.

Id. at 398. Walton and Cedar Creek responded to this motion by advising the trial court "that they have no objection to the Department's motion to supplement the record, and further, request that this Court determine that the Department's Motion does not seek dismissal on the basis of an alleged jurisdictional defect." Id. at 476.

On June 28, 2005, the trial court conducted a hearing to address the jurisdictional question raised by DNR. On July 1, 2005, the trial court dismissed the petition for judicial review, concluding that the agency record filed by Walton and Cedar Creek was inadequate "and that this failure results in this Court lacking subject matter jurisdiction over the issue at hand." Id. at 10. Walton and Cedar Creek filed a motion to correct error, which the trial court denied on August 16, 2005. Walton and Cedar Creek now appeal.

Analysis

Walton and Cedar Creek assert that the record from the NRC it submitted on November 10, 2004, was sufficient to confer jurisdiction on the trial court to consider the issue raised in their petition for judicial review. DNR and DeKalb claim that that record was insufficient, thus depriving the trial court of subject matter jurisdiction in this case and requiring the order of dismissal.

At the outset, we acknowledge Walton and Cedar Creek's contention that the trial court erred in treating DNR's "Motion to Accept Additional Documents from the Administrative Record" as a motion to dismiss. Id. at 397. As Walton and Cedar Creek observe, that motion did not explicitly request dismissal of the petition for judicial review. Regardless, Indiana Code Section 4-21.5-5-13(b) expressly permits a trial court to dismiss a petition for judicial review "on its own motion" if it determines that the agency record submitted by the petitioner is untimely or inadequate. That the trial court proceeded to dismiss Walton and Cedar Creek's petition for judicial review without an express motion to that effect from either DNR or DeKalb County is not grounds for reversing the dismissal.

We also note that most of DNR's brief is dedicated to criticizing our recent decision in Indiana State Board of Health Facility Administrators v. Werner, 841 N.E.2d 1196 (Ind.Ct.App.2006), aff'd on rehearing, 846 N.E.2d 669 (Ind.Ct.App. 2006). In that case, we were required to address directly whether a party's failure to timely file an administrative record under Indiana Code Section 4-21.5-5-13 deprives a trial court of subject matter jurisdiction over a petition for judicial review or merely impacts jurisdiction over the particular case. After acknowledging that some cases had referred to the timely filing of an administrative record as impacting subject matter jurisdiction, we noted that in none of those cases was it necessary to determine what kind of jurisdiction was at issue. Werner, 841 N.E.2d at 1204. In Werner, unlike in the previous cases, the administrative agency was claiming for the first time on appeal that the record had not been timely filed, and we were forced to determine whether such an argument could be waived because it only concerned jurisdiction over the particular case, not subject matter jurisdiction. After a thorough review of those cases and others in our original opinion and opinion on rehearing, we concluded that the requirement of timely filing the agency record at most affected a trial court's jurisdiction over the particular case, not subject matter jurisdiction. Id. at 1205-06. Thus, any complaint that the agency record is inadequate or not timely filed can be waived if not objected to at the earliest opportunity. Id.

We still believe, despite the State's repeated efforts to convince us otherwise, that Werner was decided correctly. We need not rehash the specifics of that case. In fact, we observe that our supreme court very recently discussed Indiana Code Section 4-21.5-5-13, which is now applicable to the Indiana Tax Court, and plainly stated: "The timing of filing the agency record implicates neither the subject matter jurisdiction of the Tax Court nor...