INDIANA DEPARTMENT OF NATURAL RESOURCES and Indiana Natural Resources Commission, Appellants-Respondents, v. UNITED REFUSE COMPANY, INC., Appellee-Petitioner, Indiana Division, Izaak Walton League of America, Inc., Intervening Respondent.
No. 49S02-9306-CV-619.
Supreme Court of Indiana.
June 9, 1993.
615 N.E.2d 100
Accordingly, we grant transfer, vacate the opinion of the Court of Appeals, reverse Hill‘s conviction for attempted murder, and remand this case to the trial court for a new trial on the attempted murder count.
SHEPARD, C.J., and DeBRULER and DICKSON, JJ., concur.
GIVAN, J., dissents, with separate opinion.
GIVAN, Justice, dissenting.
I respectfully dissent from the majority opinion. I find the majority‘s analysis of the court‘s Instruction No. 15 is wholly unacceptable. It is beyond comprehension that any person could read the court‘s instruction and come to the conclusion that the jury was not required to find that appellant intended to kill the victim when he fired the shot.
The majority goes on to state the circumstance of the shooting, observing that the jury could have found that appellant did not intend to kill the victim when he fired the shot. However, this is not the issue upon which the case is reversed. It was, of course, for the jury to determine the facts as to whether appellant intended to kill the victim. This they did. It is not proper for us to second-guess that prerogative. Alfaro v. State (1985), Ind., 478 N.E.2d 670. The majority opinion turns solely on the language of an instruction which I would hold to be entirely proper.
The trial court should be affirmed.
George M. Plews, Sue A. Shadley, and Donn H. Wray, Plews & Shadley, Indianapolis, for appellee-petitioner United Refuse Co., Inc.
ON PETITION TO TRANSFER
KRAHULIK, Judge.
United Refuse Company, Inc. (“United“) seeks transfer after the Court of Appeals reversed the trial court‘s judgment vacating the order of the Natural Resources Commission (“NRC“), a subdivision of the Indiana Department of Natural Resources.2 Indiana Dep‘t. of Natural Resources v. United Refuse Co. (1992), Ind.App., 598 N.E.2d 603. The NRC‘s order denied United‘s request for a floodway construction permit.
FACTS
United operates a sanitary landfill in Allen County, Indiana, on an approximately 100 acre tract of land which it owns. The property is bounded by Junk Ditch on the north and west, the Norfolk and Western Railroad on the south, and Smith Road on the east. Power lines divide the property into two sections, a southern section (“South Property“) and a northern section (“North Property“). The South Property, roughly seventy acres, is presently used by
In the 1970‘s, United received approval from the NRC to conduct landfill operations on the South Property, but the NRC disapproved of landfill activities being conducted on the North Property. In 1985, United submitted another application to the NRC to construct an earthen dike on the North Property in a floodway and expand its landfill operations to the North Property. The NRC denied the application.
United filed a petition for administrative review. Following a hearing, the administrative law judge (“ALJ“) issued a report, proposed findings of fact, and a recommended order. Objections to the report were timely filed. After hearing oral argument on the objections, the NRC affirmed the ALJ‘s order and adopted without change the order as the final NRC order.
United sought judicial review of the final NRC order in the trial court. After a hearing, the trial court issued findings of fact, conclusions of law and judgment. In reversing and vacating the NRC order, the trial court determined that the ALJ failed to serve as the trier of fact because, in assessing the NRC‘s initial determination, the ALJ improperly used a standard of appellate review. Additionally, the trial court determined that the NRC lacked jurisdiction over United‘s property because the area involved did not meet the statutory definition of “floodway.”
The NRC raised four issues in its appeal to the Court of Appeals. The NRC claimed that the trial court exceeded its authority by issuing factual findings which conflicted with those issued by the NRC, that United had failed to carry its burden of proof, and that the NRC‘s findings and conclusions were supported by substantial evidence. The Court of Appeals reversed the trial court and affirmed the NRC‘s order in its entirety. In reaching its conclusion, the Court of Appeals held that (1) United failed to meet its burden of proof, (2) the order was supported by substantial evidence, (3) United was not deprived of due process, and (4) that the findings were sufficient to determine that the North Property was within a “floodway.”
In its petition to transfer, United challenges the NRC‘s jurisdiction over the North Property and asserts that the ALJ did not conduct a de novo hearing of the evidence, but rather improperly used a standard of appellate review in the administrative hearing. We grant transfer to address these issues.3
JURISDICTION
United asserts that in order for the NRC to have jurisdiction over the North Property, the property must meet the statutory requirements of being within a “floodway.” The legislature has defined “floodway” as “the channel of a river or stream, and those portions of the flood plains adjoining the channel, which are reasonably required to efficiently carry and discharge the flood water or flood flow of any river or stream.”
We have considered the arguments on this issue and conclude that the Court of Appeals correctly decided it. Therefore, pursuant to
United also argues that the NRC‘s characterization of the North Property as a “storage floodway” is dispositive of this issue because unless the property at issue is located in a “floodway,” the NRC has no jurisdiction to grant United a construction permit. We note that United
correctly asserts that the controlling statute uses only the terms “floodway” and “flood plain,” and not “storage floodway.” See Ind.Code §§ 13-2-22-3(11) and(12) . Here, however, the ALJ did not find that the North Property was a “storage floodway,” but rather found that according to the 100-year flood criterion, the water level would rise up and over the edge of the flood basin and water would then run down in the opposite direction; this finding is sufficient to show that the North Property is a floodway, and that this floodway is required to “carry and discharge” the flood flow efficiently. SeeInd.Code § 13-2-22-3(12) ;Ind.Code § 13-2-22-13(d) ; Record at 774-75.7Therefore, the NRC had jurisdiction to require United to obtain a permit for construction on the North Property, and United‘s contentions to the contrary are simply requests for us to reweigh the evidence, which we may not do. See Hamilton Co. Dept. of Pub. Welfare v. Smith (1991), Ind.App., 567 N.E.2d 165, 167-68. Any extra findings which the ALJ made which were irrelevant to the resolution of this issue were mere surplusage, which do not affect the validity of his decision. Cf. Hardesty v. Bolerjack (1982), Ind.App., 440 N.E.2d 490, 493 (findings required to be sufficiently detailed to allow for meaningful judicial review).
United Refuse Co., 598 N.E.2d at 607.
STANDARD OF REVIEW
United asserts that the ALJ did not conduct a de novo review of the evidence presented at the administrative hearing, but rather erroneously used a standard of appellate review. Additionally, United asserts that the ALJ did not make his findings of fact exclusively from the evidence presented. In contrast, the NRC contends that the proper standard of administrative review was provided. The NRC asserts that the ALJ‘s findings of fact indicate that the ALJ did make his recommendation based on the evidence presented at the hearing, that the findings are sufficient to support the NRC‘s ultimate decision, and despite the ALJ‘s confusion regarding the fine points of his role, that the findings are in accord with the evidence presented at the hearing.
An aggrieved party at an administrative hearing may seek judicial review.
court shall grant relief under section 15 of this chapter only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.
Although the trial court acts as an appellate court, this does not mean that a party‘s rights are not adjudicated. Rath-
The ALJ is guided in his role by
12. The following issues are relevant and will be addressed in this document:
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(b) Was there basis for the Commission‘s denial of the Claimant‘s permit application that would lead a reasonable and honest person to the same conclusion?1
51. The key considerations in all these statutory elements are: What did the Commission read and hear in regard to this permit application and did this information provide a rational basis for an individual commission member to form the opinion that United Refuse had not proved its case?
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56. The issue here is not whether Mr. Pruitt is right or wrong but rather was his testimony to the Commission convincing enough to create a rational basis by which an individual commission member could form an opinion as to whether unreasonable detrimental effects upon fish, wildlife or botanical resources could occur.
These findings illustrate that the ALJ failed to fulfill his duty as fact finder because, instead of weighing the evidence and reaching a conclusion, he deferred to the agency‘s initial determination.
Because the ALJ did not perform a de novo hearing, the administrative proceeding was not in accord with the procedure required by law. As a result, pursuant to
CONCLUSION
Accordingly, we grant transfer and vacate the opinion of the Court of Appeals except as to the issue adopted and incorporated by reference. We affirm the trial court‘s determination that the ALJ did not perform a de novo review, but reverse the trial court‘s determination that the Natural Resources Commission lacked jurisdiction. We remand this case to the NRC for a de novo hearing by an administrative law judge.
SHEPARD, C.J., and GIVAN and DICKSON, JJ., concur.
DeBRULER, J., concurs, with separate opinion in which DICKSON, J., concurs.
Several important propositions are inextricably bound to this case which deserve special mention.
First, special findings by administrative tribunals serve important and salutory goals, including: (1) restraining agency discretion to lawful channels; (2) advising the person dealing with the agency of the grounds for denying governmental license or benefit; and (3) facilitating court review, avoiding encroachment by the courts upon legitimate agency action. See Carlton v. Board of Zoning Appeals (1969), 252 Ind. 56, 245 N.E.2d 337. I am in accord with the oversight of the process provided in the majority opinion.
Second, the administrative law judge, in this instance, was not the ultimate authority. Therefore, his findings and order issued pursuant to
Pursuant to
Third, the statute provides the standard to be applied by the administrative law judge and the NRC in administrative review proceedings as follows:
(b) The order must include, separately stated, findings of fact for all aspects of the order,.... Findings of ultimate fact must be accompanied by a concise statement of the underlying basic facts of record to support the findings....
(c) Findings must be based exclusively upon the evidence of record in the proceeding and on matters officially noticed in that proceeding. Findings must be based upon the kind of evidence that is substantial and reliable. The administrative law judge‘s experience, technical competence, and specialized knowledge may be used in evaluating evidence.
Fourth, it is important that courts view administrative findings as distinct from judicial findings. Administrative findings are often made by persons without a legal background. If the requirements for administrative findings becomes too formal or too restraining, legitimate administrative action may be frustrated.
Fifth, it is useful to observe that the tentative findings of the administrative law judge are against the party having the burden of proof in the hearing before him. When the findings of a tribunal are against the party having the burden of proof, as they are in this case, special problems in expression are presented. They only need be sufficient to communicate the basis for the negative decision. Some of the problem here stems from this source.
Finally, it is important that United Refuse has made no claim that the plenary adjudicatory hearing, conducted by the administrative law judge, was in any way
DICKSON, J., concurs.
STEVEN H. KRAHULIK
JUSTICE, SUPREME COURT OF INDIANA