Natural Resources Com'n of Indiana Dept. of Natural Resources v. Porter County Drainage Bd.
| Decision Date | 10 July 1990 |
| Docket Number | No. 64A04-8911-CV-501,64A04-8911-CV-501 |
| Citation | 555 N.E.2d 1387 |
| Parties | NATURAL RESOURCES COMMISSION OF THE INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellant (Plaintiffs Below), v. PORTER COUNTY DRAINAGE BOARD, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Daniel P. McInerny, Deputy Atty. Gen., Indianapolis, for appellant.
Herbert K. Douglas, Douglas, Douglas & Hurley, Valparaiso, for appellee.
Plaintiffs/Appellants, the Natural Resources Commission of the Indiana Department of Natural Resources (NRC), appeals the trial court's denial of its application for temporary restraining order and complaint for preliminary and permanent injunction. We reverse.
Whether the trial court properly interpreted Ind.Code 13-2-22 in denying NRC's application for temporary restraining order and complaint for preliminary and permanent injunction.
Salt Creek runs through Porter County, Indiana, is approximately twenty-four and one-half (24 1/2) miles long, and is a tributary of Lake Michigan. It serves as a stocking and "imprinting" site for salmon and steelhead trout and is used as a spawning run for these fish as they return to Lake Michigan. The Parker Drain is a regulated drain eight and one-half (8 1/2) miles long. It follows Salt Creek from approximately 200 W. south and east to five-eighths ( 5/8) of a mile south of Division Road. Parker Drain is not an independently existing drain but an inclusive part of Salt Creek.
On July 14, 1989 Indiana Conservation Officer Lieutenant David R. Bateman discovered a dredging operation taking place on Salt Creek 2 1/2 miles south of Valparaiso, Indiana in the creek's floodway. Upon returning to investigate the site on July 17, Lt. Bateman noted trees and brush had been cleared from the north or east side of the creek, and the spoil had been deposited on the bank. He saw several pieces of equipment along the creek, including a bulldozer and a dragline; Bill Durflinger was operating the equipment. Lt. Bateman informed Mr. Durflinger that he was to cease operation until he obtained a permit from the DNR, but that it was doubtful a permit would be issued right away, due to a moratorium on construction in the Lake Michigan tributaries because of the migration of salmon and trout upstream.
After various meetings, the Porter County Drainage Board failed to terminate the project. The application for temporary restraining order and complaint for preliminary and permanent injunction which followed are the basis for this appeal.
Additional facts will be added as needed.
State Bd. of Public Welfare v. Watkins (1984), Ind.App., 459 N.E.2d 394, 396. (citation omitted).
The NRC asserts that Salt Creek is a vital segment of the Lake Michigan tributaries necessary to maintain salmon and steelhead trout populations. The sport fishery for theses species generates approximately forty million dollars ($40,000,000) per year in economic benefits to northwest Indiana. Specifically, they assert that siltation from in-stream dredging and erosion from bank clearing, degrade water quality and destroy critical fish habitat, both at the site of excavation and downstream from it. This results in both immediate and long term negative impacts on the trout and salmon population; this was especially true at the Salt Creek excavation point because the fish were in their summer run. It is for these reasons that NRC feels it has a legitimate interest in overseeing the excavation of these areas through screening and the issuance of permits. Based on these facts, they assert that the trial court interpreted IC 13-2-22-13(d) contrary to legislative intent.
The statute in question states:
(d) Any person desiring to:
(A) erect, make, use, or maintain a structure, obstruction, deposit, or excavation;
(B) suffer or permit a structure, obstruction, deposit, or excavation to be erected, made, used or maintained; or
(C) make an addition to a lawful abode or place of residence if the addition does not increase the value of the abode or place of residence by more that forty percent (40%) and a previous addition was not made to the abode or place of residence in or on any floodway shall first file with the commission a verified written application for permit accompanied by a nonrefundable fee of fifty dollars ($50). The application must set forth the material facts together with plans and specifications for the structure, obstruction, deposit, or excavation, and such person must receive a permit from the commission for the work before the beginning construction. The commission shall issue a permit only if in the opinion of the commission the applicant has clearly proven that such structure, obstruction, deposit or excavation will not adversely affect the efficiency of or will not unduly restrict the capacity of the floodway, or will not constitute an unreasonable hazard to the saftey of life or property, or will not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. In deciding whether to issue a permit under this subsection, the commission shall consider the cumulative effects of the structure, obstruction, deposit, or excavation. Any permit issued by the commission under this subsection is void if construction is not commenced within two (2) years after issuance of the permit. However, authorization and approval of the commission is not required for:
(1) a reconstruction or maintenance project ...
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