Moriarity v. Ind. Dep't of Natural Res.
| Decision Date | 13 February 2018 |
| Docket Number | Court of Appeals Case No. 27A04–1612–PL–2731 |
| Citation | 91 N.E.3d 642 |
| Parties | John E. MORIARITY and Mae E. Moriarity, Appellants–Petitioners, v. INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellee–Respondent. |
| Court | Indiana Appellate Court |
Attorney for Appellants : William M. Horne, Horne Law LLC, Indianapolis, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, Indiana
[1] John and Mae Moriarity (collectively "the Moriaritys") appeal the trial court's order in which the court affirmed the decision of the Natural Resources Commission ("the Commission") in favor of the Indiana Department of Natural Resources ("DNR") following the DNR's notice of violation issued to the Moriaritys and final order thereon. The Moriaritys present three issues for our review, which we restate as follows:
[2] We affirm.
[3] The Moriaritys own farm land in Grant County. Between 1997 and 2000, John constructed a dam and a lake on the farm, and he stocked that lake with fish. The dam is more than twenty feet high at some points, the lake has a surface area of approximately forty acres, and the lake contains more than 100 acre-feet of water.2
[4] During the course of the construction, the Moriaritys were in contact with the DNR about any relevant permits the Moriaritys might need, but the DNR did not instruct them to obtain any specific permits from the DNR. Nonetheless, between 2002 and 2008, the DNR issued to the Moriaritys a notice of violation ("NOV") with respect to the dam on at least three separate occasions. The Moriaritys either did not comply with those NOVs or had them subsequently dismissed by a trial court. On May 14, 2012, the DNR issued another NOV to the Moriaritys. The 2012 NOV alleged, in relevant part, that the Moriaritys' dam was in violation of Indiana's Dam Safety Act, Ind. Code Ann. §§ 14–27–7.5–1 to –16 (West 2011).
[5] The Moriaritys sought administrative review of the 2012 NOV. At an ensuing fact-finding hearing, the DNR presented expert testimony that streams existed on the Moriaritys' property. The DNR's experts further testified that the Moriaritys' lake was created by the damming of those streams.
[6] The DNR also presented the testimony of Kenneth Smith, the DNR's assistant director of the water division, who testified that the Moriaritys' dam was a "high hazard" dam. In particular, Smith testified that it is Appellants' App. Vol. II at 106. Smith further testified that, looking out from the Moriaritys' dam, it was "visually obvious" that that dam "was a High–Hazard Dam" due to the presence of several structures that, if a breach occurred, would be inundated "with great velocity and depth." Id. at 129. Similarly, George Crosby, a DNR geologist, testified that, if the dam "breaks above the house [of the Moriaritys' son, who lived nearby], it's likely that there could be some serious damage to that house and ... to other homes, too." Appellants' App. Vol. III at 45. Crosby further testified that, "even without the homes, ... this thing would still be considered High–Hazard ... due to [a downstream] road because of the traffic; that's a very high-traffic road." Appellee's App. Vol. III at 188.
[7] Following the fact-finding hearing and oral argument, the Commission entered its order for the DNR and against the Moriaritys, which the Commission supported with findings of fact and conclusions of law. The Commission's "Final Order" stated as follows:
Appellant's App. Vol. II at 56–57. The Moriaritys filed a petition for judicial review thereafter, and the trial court affirmed the Commission's decision. The Moriaritys filed a motion to correct error with the trial court, which was subsequently deemed denied. This appeal ensued.
[8] Our standard of review is well settled:
Jay Classroom Teachers Ass'n v. Jay Sch. Corp. , 55 N.E.3d 813, 816 (Ind. 2016).
[9] The Moriaritys first contend that the DNR erred when it exercised jurisdiction over their dam. In particular, the Moriaritys assert that the DNR misinterpreted the Indiana Code; that the DNR's assertion of jurisdiction under the Dam Safety Act here is not supported by substantial evidence; and that the DNR's erroneous exercise of jurisdiction denied the Moriaritys due process and resulted in an arbitrary and capricious decision. We address each of the Moriaritys' arguments in turn.
[10] We first turn to the Moriaritys' claim that the DNR misinterpreted its jurisdiction under the Indiana Code. In particular, the Moriaritys allege that the "DNR's jurisdiction hinged on whether the fish pond—or, more technically, its ‘structure’—was built ‘in, on, or along’ a stream." Appellants' Br. at 21. " ‘To the extent the issue turns on statutory construction, whether an agency possesses jurisdiction over a matter is a question of law for the courts.’ " Walczak v. Labor Works–Ft. Wayne LLC , 983 N.E.2d 1146, 1152 (Ind. 2013) (quoting Ind. Dep't of Envtl. Mgmt. v. Twin Eagle LLC , 798 N.E.2d 839, 844 (Ind. 2003) ).
[11] As the Indiana Supreme Court has explained:
When construing a statute our primary goal is to ascertain the legislature's intent. Adams v. State , 960 N.E.2d 793, 798 (Ind. 2012). To discern that intent, we look first to the statutory language itself and give effect to the plain and ordinary meaning of statutory terms. Pierce v. State , 29 N.E.3d 1258, 1265 (Ind. 2015). "If a statute is unambiguous, that is, susceptible to but one meaning, we must give the statute its clear and plain meaning." State v. Evans , 810 N.E.2d 335, 337 (Ind. 2004) (quotation omitted).
Suggs v. State , 51 N.E.3d 1190, 1193–94 (Ind. 2016).
[12] Indiana Code Section 14–27–7.5–8(a)(1) (2017) provides in relevant part that the DNR has "jurisdiction ... over the maintenance and repair of structures in, on, or along ... streams." The statute does not define "streams." But that term has a plain and ordinary meaning, namely, "a body of running water flowing in a channel on the surface of the ground [.]" Webster's 3d New Int'l Dictionary 2258 (2002). And the Commission used that plain and ordinary meaning here:
[t]he DNR's witnesses all provided definitions of "stream" as flowing water through a defined channel. The DNR's definition is consistent with the definitions provided by the parties as Exhibit 3, which includes definitions from both standard English dictionaries and technical dictionaries. The Moriaritys argue that [the definition proffered by their expert witness,...
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Moriarity v. Ind. Dep't of Natural Res.
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