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Commissioner of The Indiana Department of Environmental Management v. Eagle Enclave Development, LLC

Court of Appeals of Indiana

February 21, 2019

Commissioner of the Indiana Department of Environmental Management, Appellant-Petitioner,
v.
Eagle Enclave Development, LLC, Appellee-Respondent.

          Appeal 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 Indianapolis, Indiana

          Attorneys for Appellee James D. Johnson Blair M. Gardner Jackson Kelly PLLC Evansville, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] 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.

         [¶2] We reverse and remand with instructions.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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 provided:

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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 ...


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