Commissioner of the Indiana Department of Environmental Management, Appellant-Petitioner,
Eagle Enclave Development, LLC, Appellee-Respondent.
from the Vanderburgh Superior Court Trial Court Cause No.
82D01-1707-MI-3721 The Honorable Leslie C. Shively, Judge
Attorneys for Appellant Curtis T. Hill, Jr. Attorney General
of Indiana Frances Barrow Deputy Attorney General
Attorneys for Appellee James D. Johnson Blair M. Gardner
Jackson Kelly PLLC Evansville, Indiana
of the Case
The Commissioner of the Indiana Department of Environmental
Management ("IDEM") appeals the trial's court
denial of its Indiana Trial Rule 12(B)(6) motion to dismiss
counterclaims filed by Eagle Enclave Development
("Eagle"). IDEM presents a single issue for our
review, namely, whether the trial court erred when it denied
IDEM's motion to dismiss.
We reverse and remand with instructions.
and Procedural History
Eagle owns and operates a development in Evansville. Eagle
obtained a permit in order to remove vegetation and soil and
to discharge storm water associated with the construction of
its development. Between September 30, 2013, and June 17,
2014, IDEM conducted four inspections of Eagle's
development site. During those inspections, IDEM observed
that Eagle had violated Indiana law when it failed to
minimize sedimentation to off-site areas. Specifically, IDEM
observed thick sediment deposits in an off-site pond owned by
an individual named Barbara Bolin. As a result of the
violations, IDEM issued a Notice of Violation to Eagle on
July 30, 2014.
In order to resolve the violations, Eagle and IDEM entered
into an Agreed Order on January 23, 2015. Pursuant to the
terms of the Agreed Order, Eagle agreed to "submit a
plan including the specific actions [Eagle] will take to
remove any sediment attributable to the activities at the
Site from the off-site pond owned by Barbara Bolin."
Appellant's App. Vol. II at 28. Eagle also agreed to
include in the plan a schedule for implementation and
completion of all required actions. The Agreed Order further
In the event IDEM determines that any plan submitted by
[Eagle] is deficient or otherwise unacceptable, [Eagle] shall
revise and resubmit the plan to IDEM in accordance with
IDEM's notice. After three (3) submissions of any plan by
[Eagle], IDEM may modify and approve any plan and [Eagle]
must implement the plan, as modified by IDEM.
Id. at 29. And, "[i]n recognition of the
settlement reached," Eagle agreed to "waive any
right to administrative or judicial review of this Agreed
Order." Id. at 27.
Eagle then had two studies conducted in order to determine
the amount of sediment in the Bolin pond that was
attributable to Eagle's actions. Based on those studies,
Eagle concluded that only an "inconsequential"
amount of sediment in the Bolin pond had come from
Eagle's development. Id. at 36. Accordingly, on
June 1, 2016, Eagle wrote a letter to IDEM in which Eagle
asked IDEM to modify the Agreed Order. Specifically, Eagle
requested that IDEM remove the requirement for Eagle to
dredge the pond. In exchange, Eagle offered to donate
property to IDEM in order to act as a buffer to control
runoff from Eagle's development. IDEM responded that
Indiana law does not establish a threshold amount of sediment
runoff that constitutes a violation but, rather, the mere
fact that sediment was discharged from the site was
sufficient to be a violation. Because sediment had left
Eagle's property and entered the Bolin pond, and because
"[t]he requirement to remove the sediment from the
off-site pond is necessary to remediate . . . the
violations," IDEM denied Eagle's request to modify
the Agreed Order. Id. at 39.
Thereafter, Eagle filed a petition for review with the Office
of Environmental Adjudication ("OEA") in which
Eagle requested the OEA to declare the waiver provision of
the Agreed Order void for lack of notice and to find that
IDEM's denial of Eagle's modification request was an
abuse of agency discretion. Eagle then filed a motion for
partial summary judgment. In response, IDEM filed a motion to
dismiss Eagle's petition or, in the alternative, enter
summary judgment for IDEM. The OEA granted IDEM's motion
to dismiss and cross-motion for summary judgment. As to
Eagle's first claim, the OEA concluded that Eagle's
appeal of the wavier provision of the Agreed Order was not
timely. As to Eagle's second claim, the OEA concluded
that IDEM's letter denying Eagle's request to modify
the Agreed Order was not a reviewable order under the Indiana
Administrative Order and Procedures Act ("AOPA").
And the OEA determined that Eagle's June 1, 2016, request
to modify the Agreed Order "should be considered
[Eagle's] first proposal" required by the Agreed
Order. Id. at 47.
In light of the OEA's findings and conclusions, IDEM
considered Eagle's request for modification as its first
proposed plan. IDEM then informed Eagle that its plan was
deficient because the proposal did not describe the actions
Eagle would take to remove sediment from the Bolin pond. In
response, Eagle proposed a second plan to IDEM. In the second
plan, Eagle again stated that any sediment discharge from its
development site to the Bolin pond was
"insignificant" and requested that IDEM remove the