IZAAK WALTON LEAGUE OF AMERICA, INC., Cedar Creek Wildlife Project, Inc., Appellants-Petitioners, v. DEKALB COUNTY SURVEYOR‘S OFFICE, Indiana Department of Natural Resources, Appellees-Respondents.
No. 02A05-0509-CV-539
Court of Appeals of Indiana.
July 18, 2006.
Rehearing Denied Sept. 11, 2006.
850 N.E.2d 957
BARNES, Judge.
During sentencing the trial court referred to two aggravating factors not specifically mentioned in the State‘s notice. One was that there were two guns used by Frye, and that the place of occurrence was, in fact, Royal‘s home.
Two reasons weigh heavily against Frye‘s argument on this issue. One is that he specifically waived a jury that would have considered his Blakely rights. The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the court‘s record, whether in the form of a written waiver or a colloquy in open court. Jones v. State, 810 N.E.2d 777, 779 (Ind.Ct.App. 2004). After an explanation by the trial judge, Frye expressly, on the record, waived a jury.
The other is that this court has observed that Blakely need not be read to require that a defendant be provided notice of every fact upon which the State may rely to seek an enhanced sentence. Huffman v. State, 825 N.E.2d 1274, 1276 (Ind.Ct.App.2005).
The trial court did not err in sentencing Frye.
and, the trial court properly sentenced Frye.
Judgment affirmed.
SHARPNACK, J., and VAIDIK, J., concur.
Derald D. Kruse, Auburn, IN, Attorney for Appellee, DeKalb County Surveyor‘s Office.
Steve Carter, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee, Indiana Department of Natural Resources.
BARNES, Judge.
Case Summary
Izaak Walton League of America, Inc. (“Walton“) and Cedar Creek Wildlife Project, Inc. (“Cedar Creek“) appeal the trial court‘s dismissal of their petition for judicial review of a decision by the Natural Resources Commission (“NRC“). We reverse and remand.
Issue
Walton and Cedar Creek raise several issues, which we combine and restate as whether the trial court properly concluded that it lacked subject matter jurisdiction to consider their petition for judicial review.
Facts
On September 12, 2001, the Department of Natural Resources (“DNR“) issued a permit to the DeKalb County Surveyor‘s Office (“DeKalb County“) to remove two logjams from Cedar Creek in DeKalb County. On October 5, 2001, Walton, Cedar Creek, and four individuals filed with the NRC a petition for administrative review and stay of the DNR permit to DeKalb County. DNR and DeKalb County moved for summary judgment on the question of whether the parties had standing and whether the permit was issued in accordance with statutory and regulatory guidelines. On May 24, 2002, an administrative law judge (“ALJ“) entered an “Amended Interlocutory Order” on the summary judgment motions and held that all but one of the petitioners had standing. It also concluded as a matter of law that DNR had properly considered and analyzed one portion of the statute governing the permit at issue, but that there remained a question of fact as to whether DNR had complied with a separate subsection of the statute. Specifically, the ALJ believed there was a question of fact regarding whether DNR had properly considered the “cumulative effects” of granting the logjam removal permit, as is required by
The ALJ set the matter for an evidentiary hearing. While the case was pending, the logjams were removed from Cedar Creek pursuant to the permit. DNR and DeKalb County moved to dismiss, alleging the petition challenging the permit now was moot. On September 24, 2002, the ALJ issued an order denying the motion to dismiss, considering the issue before the NRC to be “of great public importance and likely to recur....” App. p. 39. On July 23, 2003, the ALJ conducted an evidentiary hearing on the “cumulative effects” question. On October 10, 2003, the ALJ entered preliminary findings of fact and conclusions thereon. Relating evidence received during the evidentiary hearing, the ALJ determined DNR, in part, had not fully considered the “cumulative effects” of the granting of the permit as required by statute and an accompanying regulation defining the phrase “cumulative effects.” The permit was to be remanded to the DNR to “determine the impacts which result from the incremental impact of the Permit action when added to other past and present actions,” as required by law, and to document its determinations in writing. Id. at 43.
On May 3, 2004, a committee of the NRC adopted as a final order the ALJ‘s findings and conclusions in their entirety, with the exception of two minor corrections. On June 2, 2004, Walton and Cedar Creek filed a verified petition for judicial review of the NRC‘s final order. The specific allegation of error in the petition was as follows:
Petitioners have been prejudiced by the Final Order because that Order is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Specifically, the Natural Resources
Commission remanded the permit back to the agency, finding that the DNR failed to determine the cumulative effects of the permit issuance, yet the NRC failed to invalidate the permit. In effect, the NRC found that the agency did not follow the statutory requirement for issuance of a permit for construction in a floodway, but its order does nothing to remedy the unlawfully issued permit.
App. p. 30.
Walton and Cedar Creek requested preparation of an agency record from NRC. The request specified, among other things, a transcript of the July 23, 2003 hearing before the ALJ, along with all exhibits offered at the hearing, a copy of the 2002 “Amended Interlocutory Order,” and the NRC‘s final order and accompanying findings and conclusions. After receiving extensions of time to file the agency record, Walton and Cedar Creek filed it on November 10, 2004. The record contained only the items specifically requested by Walton and Cedar Creek.
On May 16, 2005, DNR filed a brief on the merits of Walton and Cedar Creek‘s petition for judicial review. On that same date, it also filed a “Motion to Accept Additional Documents from the Administrative Record.” Id. at 397. The motion claimed Walton and Cedar Creek had failed to request inclusion of certain statutorily-required documents in the NRC record. The motion concluded:
The failure to provide the entire administrative record is a jurisdictional defect which renders this Court without jurisdiction over this case.... Wherefore, in the event that this Court should continue to hear this case in spite of the jurisdictional defect, the Department requests that this Court accept the attached Supplemental Record of additional documents from the administrative record in this cause, records which should have been on file before any exercise of jurisdiction by this Court.
Id. at 398. Walton and Cedar Creek responded to this motion by advising the trial court “that they have no objection to the Department‘s motion to supplement the record, and further, request that this Court determine that the Department‘s Motion does not seek dismissal on the basis of an alleged jurisdictional defect.” Id. at 476.
On June 28, 2005, the trial court conducted a hearing to address the jurisdictional question raised by DNR. On July 1, 2005, the trial court dismissed the petition for judicial review, concluding that the agency record filed by Walton and Cedar Creek was inadequate “and that this failure results in this Court lacking subject matter jurisdiction over the issue at hand.” Id. at 10. Walton and Cedar Creek filed a motion to correct error, which the trial court denied on August 16, 2005. Walton and Cedar Creek now appeal.
Analysis
Walton and Cedar Creek assert that the record from the NRC it submitted on November 10, 2004, was sufficient to confer jurisdiction on the trial court to consider the issue raised in their petition for judicial review. DNR and DeKalb claim that that record was insufficient, thus depriving the trial court of subject matter jurisdiction in this case and requiring the order of dismissal.
At the outset, we acknowledge Walton and Cedar Creek‘s contention that the trial court erred in treating DNR‘s “Motion to Accept Additional Documents from the Administrative Record” as a motion to dismiss. Id. at 397. As Walton and Cedar Creek observe, that motion did not explicitly request dismissal of the petition for judicial review. Regardless,
We also note that most of DNR‘s brief is dedicated to criticizing our recent decision in Indiana State Board of Health Facility Administrators v. Werner, 841 N.E.2d 1196 (Ind.Ct.App.2006), aff‘d on rehearing, 846 N.E.2d 669 (Ind.Ct.App.2006). In that case, we were required to address directly whether a party‘s failure to timely file an administrative record under
We still believe, despite the State‘s repeated efforts to convince us otherwise, that Werner was decided correctly. We need not rehash the specifics of that case. In fact, we observe that our supreme court very recently discussed
Additionally, unlike in Werner, in this case the petition for judicial review in fact was dismissed upon DNR‘s suggestion before the trial court that it lacked jurisdiction. To the extent DNR in a footnote in its brief also argues that the trial court here lacked jurisdiction because Walton and Cedar Creek did not originally seek an extension of time to file the agency record until after thirty days had passed after the filing of the petition for judicial review, that argument is waived for the same reasons outlined in Werner. DNR never raised such an argument before the trial court, and it is waived for not being made at the earliest opportunity. See Werner, 841 N.E.2d at 1206. Regardless of whether the agency record was timely filed in this case, the trial court had subject matter jurisdiction to consider a petition for judicial review challenging a final agency decision.
The Wayne County opinion also addresses the proper standard of review for rulings on motions to dismiss a petition for judicial review on jurisdictional
We now turn to the heart of this matter: whether the agency record that Walton and Cedar Creek filed on November 10, 2004, constituted an adequate record for purposes of a petition for judicial review of agency action. In order to answer this question, it is imperative to examine precisely what agency action Walton and Cedar Creek had asked the trial court to review. Walton and Cedar Creek filed a challenge to the DNR permit granted to DeKalb County to clear two logjams from Cedar Creek, alleging that the permit was not granted in accordance with
DeKalb County on the question of whether the permit was issued in compliance with subsection (f) of the same statute, namely whether the DNR considered “the cumulative effects of the structure, obstruction, deposit, or excavation” before issuing the permit.
The hearing conducted by the ALJ on July 23, 2003, was directed specifically and only to this narrow issue. At that time, the parties presented testimony and entered exhibits into evidence on that issue. The ALJ later entered findings and conclusions regarding the “cumulative effects” issue that appears to have relied exclusively upon testimony and evidence presented at that hearing. The NRC subsequently adopted these findings and conclusions almost in their entirety as its final order.2
Walton and Cedar Creek‘s petition for judicial review expressly states that it is challenging the NRC‘s determinations and remedy concerning the “cumulative effects” issue. To that end, Walton and Cedar Creek requested from the NRC and filed with the trial court as the agency record in this case the transcript of the hearing held on July 23, 2003, all exhibits offered at that hearing, the ALJ‘s findings and conclusions, the parties’ objections and responses to objections to the ALJ‘s findings and conclusions, and the NRC‘s adoption of those findings and conclusions. We conclude this was sufficient to give the trial court jurisdiction over this particular case.
(3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.
(a) Within thirty (30) days after the filing of [a petition for judicial review of agency action], or within further time allowed by the court or by other law, the petitioner shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action, consisting of:
(1) any agency documents expressing the agency action;
(2) other documents identified by the agency as having been considered by it before its action and used as a basis for its action; and
(3) any other material described in this article as the agency record for the type of agency action at issue, subject to this section.
(b) An extension of time in which to file the record shall be granted by the court for good cause shown. Inability to obtain the record from the responsible agency within the time permitted by this section is good cause. Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding.
The parties agree that “any other material described in this article as the agency record for the type of agency action at issue” is controlled by
The agency record of the proceeding consists only of the following:
(1) Notices of all proceedings.
(2) Any prehearing order.
(3) Any motions, pleadings, briefs, petitions, requests, and intermediate rulings.
(4) Evidence received or considered.
(5) A statement of matters officially noticed.
(6) Proffers of proof and objections and rulings on them.
(7) Proposed findings, requested orders, and exceptions.
(8) The record prepared for the administrative law judge or for the ultimate authority or its designee under sections 28 through 31 of this chapter, at a hearing, and any transcript of the record considered before final disposition of the proceeding.
(9) Any final order, nonfinal order, or order on rehearing.
(10) Staff memoranda or data submitted to the administrative law judge or a person presiding in a proceeding under sections 28 through 31 of this chapter.
(11) Matters placed on the record after an ex parte communication.
Additionally, subsection (c) of
In addressing whether the agency record submitted by Walton and Cedar Creek sufficiently complied with
We think the purposes of the statutes governing what constitutes an adequate agency record for purposes of a petition for judicial review are clear. The record must include all that is necessary in order for the reviewing court to accurately assess the challenged agency action. The parties, including the agency and the party challenging an agency decision, may not attempt to limit the record presented to the reviewing court only to materials and evidence that support their position. Conversely, the parties cannot attempt to include in the record materials and evidence that supports their position but that was not previously introduced during the challenged agency proceeding. The importance of the statutes is that no relevant evidence or materials are hidden, and no “new” or “secret” evidence is introduced to either contradict or support an agency decision. This is consistent with
We do not believe the purpose of the statutes is to require inclusion of irrelevant and/or superfluous documents or materials as part of the agency record for purposes of judicial review. We also do not believe that the statutes are intended to operate automatically as a “trap” for litigants who fail to include materials as part of the agency record that the agency later claims should have been included. There is, quite properly, a judicial preference for deciding cases on their merits, rather than dismissing them because of some minor or irrelevant technical defect. See Coslett v. Weddle Bros. Const. Co., Inc., 798 N.E.2d 859, 862 (Ind.2003). An overly strict reading of
Here, we conclude that the relevant agency “proceeding” for purposes of those statutes was the July 23, 2003 hearing and the findings, conclusions, and final order resulting from that hearing. Walton and Cedar Creek have not attempted to challenge any previous rulings by the ALJ, and focus only on the resolution of the narrow “cumulative effects” issue. The record submitted by Walton and Cedar Creek contained the document expressing the challenged agency action, i.e. the NRC‘s final order, in accordance with subsection (a)(1) of
As for subsection (a)(3), relating to the ten factors of
Of the twenty documents DNR claimed Walton and Cedar Creek improperly excluded from the agency record, eleven were documents filed in support of DNR‘s summary judgment motion, the ruling on which Walton and Cedar Creek are not challenging. Four of the documents in-3
clude two letters, an affidavit, and a newspaper article, none of which were mentioned by the ALJ or NRC as being considered on the ruling on the “cumulative effects” issue challenged by Walton and Cedar Creek. One document was the ALJ‘s September 24, 2002 order denying DNR‘s motion to dismiss the action for mootness, but a summary of this ruling was included in the NRC‘s final order, submitted by Walton and Cedar Creek, and again they are not challenging that ruling. Two of the documents were letters to and from the NRC regarding Walton and Cedar Creek‘s request for preparation of an agency record for judicial review.
We fail to perceive what relevance any of these documents have to the issue presented by Walton and Cedar Creek in their petition for judicial review. They all concern matters outside the record presented and considered by the ALJ and NRC in conjunction with the decision on the “cumulative effects” issue specifically challenged by Walton and Cedar Creek. Neither DNR nor DeKalb County provide any explanation as to why these documents are relevant to that narrow question; their argument boils down to a strict, and in our view, hyper-technical, construction of the statutes governing agency records. We decline to accept such a construction.
The only two documents in DNR‘s proposed supplemental materials that Walton and Cedar Creek arguably should have included as part of the agency record were the complete docket listing from the NRC since the very beginning of the case, and a stipulation from the parties regarding what was to be addressed at the July 23, 2003 hearing. We have held, however, that
Our conclusion that Walton and Cedar Creek submitted an adequate agency record for purposes of their petition for judicial review is consistent with our holding in Medical Licensing Board v. Provisor, 678 N.E.2d 814 (Ind.Ct.App.1997). In that case, the Medical Licensing Board (“the Board“) suspended a doctor‘s license after she was convicted of child molesting. During the course of litigation regarding the suspension, which was stayed by a trial court, her license came up for renewal. The Board refused to renew the license, citing the evidence it had received previously that had led to the suspension of her license. The doctor challenged the non-renewal of her license in a petition for judicial review by a trial court. The trial court granted a stay of the non-renewal of her license, and the Board appealed.
The Board contended, among other things, that the trial court lacked jurisdiction to grant the stay because the doctor had not submitted an adequate agency record as required by
DNR states, ”Provisor merely determined that a proper record for the particular issue in that case had been filed.” Appellee DNR‘s Br. p. 26. We do not disagree with that statement. However, it can be applied directly to this case. Walton and Cedar Creek filed a proper record for the particular issue in this case, namely whether the NRC erred in its determination regarding the “cumulative effects” issue. The ALJ, and subsequently the NRC, decided that issue on the basis of the evidence and exhibits presented at the hearing held on July 23, 2003. Walton and Cedar Creek submitted a full transcript of that hearing and all exhibits introduced at it. Similar to Provisor, we conclude the trial court here had before it all of the evidence which supported NRC‘s ultimate decision regarding the “cumulative effects” issue through Walton and Cedar Creek‘s November 10, 2004 filing.
It also appears to us that this case is distinguishable from our decision in Indiana State Board of Education v. Brownsburg Community School Corporation, 813 N.E.2d 330 (Ind.Ct.App.2004). There, Brownsburg refused to allow a student to enroll in its school system, and the student then appealed to the State Board of Education (“ISBE“). After conducting a hearing, ISBE ordered Brownsburg to allow the student to enroll. Brownsburg filed a petition for judicial review of this decision. The trial court ordered that ISBE‘s order be set aside, and ISBE appealed.
It appears that Brownsburg‘s initial timely filing did not include documents or materials that would have been essential to the ISBE‘s decision, such as evidence or testimony that was presented at the hearing and a memorandum from the ALJ to the ISBE. Walton and Cedar Creek excluded no such materials here with respect to the specific agency decision it was challenging.4 It also does not appear that in Brownsburg there were preliminary rulings by the agency that went unchallenged by the petition for judicial review, unlike in this case. The entire “proceeding” in that case focused on and resolved one issue at one time, namely whether the student could enroll in the Brownsburg school system. Thus, it was more imperative to have a complete “beginning-to-end” administrative record than is the case here, where the petition for judicial review challenges only one of several decisions made by the agency.
To the extent some language in Brownsburg might be read as establishing a strict rule that all documents created during the course of an administrative “proceeding” must be made part of the agency record for purposes of judicial review on pain of dismissal, regardless of the relevance of those documents to the question presented to the trial court, we will not apply any such strict rule in this case.
Conclusion
We conclude the trial court here had both subject matter jurisdiction and jurisdiction over the particular case. The record filed by Walton and Cedar Creek was adequate for the trial court to review the claim made in their petition for judicial review. We reverse the dismissal of the petition and remand for further proceedings consistent with this opinion.
Reversed and remanded.
FRIEDLANDER, J., concurs.
MATHIAS, J., dissents with separate opinion.
MATHIAS, Judge, dissenting.
As I cannot conclude that Walton and Cedar Creek presented “an adequate agency record” for purposes of judicial review under AOPA, I respectfully dissent.
The majority has determined that Walton and Cedar Creek filed the “essential” items for judicial review of the DNR‘s decision. This determination is unnecessary—the General Assembly has already defined which items are essential for that review in
I respectfully disagree with the majority‘s conclusion that this case is distinguishable from Indiana State Board of Education v. Brownsburg Community School Corporation, 813 N.E.2d 330 (Ind.Ct.App.2004). That opinion did nothing more or less than apply the clear language contained in the statutes governing judicial review of agency action. I do not believe that doing so constitutes an “overly strict reading,” nor do I believe that the requirement of filing a complete agency record presents a trap or technicality.
“[W]here a narrow statutory remedy is given, the time and manner of asserting such right must be strictly followed[.]” Shipshewana Convenience Corp. v. Bd. of Zoning Appeals of LaGrange County, 656 N.E.2d 812, 814 (Ind.1995). This court has held that the timely filing of the agency record is a condition precedent to a court acquiring jurisdiction to consider a petition for judicial review. See Brownsburg, 813 N.E.2d at 333; Clendening v. Ind. Family & Soc. Servs. Admin., 715 N.E.2d 903, 904 (Ind.Ct.App.1999); Park v. Med. Licensing Bd. of Ind., 656 N.E.2d 1176, 1179 (Ind.Ct.App.1995), trans. denied. Likewise, I believe the filing of the agency record must be complete, as required by
For all of these reasons, I would affirm the trial court‘s dismissal of the petition for judicial review.
Deborah J. MAXWELL, Appellant, v. Terry Steven MAXWELL, Appellee.
No. 55A01-0601-CV-2.
Court of Appeals of Indiana.
July 19, 2006.
Rehearing Denied Sept. 14, 2006.
Notes
An applicant must receive a permit from the director for the work before beginning construction. The director shall issue a permit only if in the opinion of the director the applicant has clearly proven that the structure, obstruction, deposit, or excavation will not do any of the following:
(1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.