CADDNAR

 

[CITE: DCG Services, et al. v. DNR, 15 CADDNAR 54 (2019)]

 

 

[VOLUME 15, PAGE 54]

 

 

Cause #: 13-156W

Caption: DCG Services, et al. v. DNR

Administrative Law Judge: Jensen

Attorneys: Tucker-Young (DCG); Gamboa (DNR)

Date: March 20, 2019

 

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

Final Order

  1. The NOV issued by the Department is hereby affirmed in all respects except to the extent the Petitioners were alleged to have filled the stream channel of Sulphur Creek.

 

  1. The Petitioners shall mitigate the violations affirmed by this Order by conducting activities as specified by and within the time frames provided by the Department in the NOV’s section entitled “Action Appropriate to Mitigate the Violation”.

 

  1. The Petitioners shall pay the assessed $5,000 civil penalty within thirty (30) days after the opportunity for judicial review, or subsequent appeal, has expired.

 

  1. Failure to comply with the mitigation requirements, as set forth in the NOV and ordered in Finding 79, shall result in the imposition of additional civil penalties as set forth in the NOV’s section entitled “Civil Penalty Assessment”. 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

 

Procedural Background and Jurisdiction

  1. For consideration in this proceeding is a Notice of Violation, identified as VTS-5505-FW, (hereafter referred to as “the NOV”) issued by the Respondent, Department of Natural Resources (Department), to DCG Services, Inc., Abydel Farms, LLC, John M. Divine, Linda M. Divine, and George R. Ziegler, on August 22, 2013.

 

  1. The NOV alleges that the individuals to whom it was issued violated Indiana Code §§ 14-28, commonly referred to as the Flood Control Act, or FCA, by engaging in “excavation within the channel of Sulphur Creek, excavation of tree stumps and roots within the floodway, fill placement within the floodway, and filling of the existing stream channel” without having first obtained “prior written approval” of the Department through its Division of Water.  The Department maintained that the NOV was issued as an enforcement action authorized by Indiana Code §§ 14-25.5.

 

  1. The NOV assessed a civil penalty in the amount of $5,000 with further notice that additional penalties would accrue following a failure to take corrective action as specified within the NOV.

 

  1. On September 13, 2013, DCG Services, Inc., Abydel Farms, LLC, John M. Divine and Linda M. Divine (hereafter referred to collectively as “the Petitioners”), by counsel, Jennifer Tucker Young, timely filed, with the Natural Resources Commission (Commission), their request for appeal or administrative review under Indiana Code § 4-21.5-3-6.

 

  1. George R. Ziegler (Ziegler) did not seek administrative review or otherwise appeal the Department’s issuance of the NOV.  Further, Ziegler did not intervene in the instant action commenced by the Petitioners.  Testimony of Ziegler.

 

  1. The Department and the Commission are the administrative agencies responsible for the administration of the FCA.  Indiana Code §§ 14-28.

 

  1. The Administrative Orders and Procedures Act, commonly referred to as AOPA, is applicable to Indiana Code §§ 14-28 and 14-25.5.  Indiana Code §§ 14-28-1-30 and 14-25.5-2-4.

 

  1. The Indiana General Assembly established a “legislative design” for the Department and the Commission by which the “Director of the [Department] would receive all day-to-day decision-making authority. Departmental decisions would be appealed through the administrative adjudication process, with the Commission acting as final adjudicative authority.”  Juday Creek, et al. v. Ralph Williams and Associates and DNR, 8 CADDNAR 90, 92 (1998).

 

  1. With respect to actions of the Department under the FCA and Indiana Code §§ 14-25.5, the Commission serves as the “ultimate authority”.  Indiana Code §§ 4-21.5-1-15 and 14-10-2-3.

 

  1. The Commission possesses jurisdiction over the subject matter of this proceeding and of the persons of the parties.

 

  1. Administrative Law Judge (ALJ) Jensen was appointed in accordance with Indiana Code § 14-10-2-2 on September 18, 2013.[1]

 

  1. ALJ Jensen conducted a Prehearing Conference on October 17, 2013.  The record of the instant proceeding indicates that settlement discussions were ongoing between October 17, 2013 and April 1, 2016.  On October 5, 2017, the Department sought to have the instant proceeding scheduled for a telephonic Status Conference, which was granted.  Since the Status Conference, conducted on November 1, 2017, the parties have engaged in additional settlement discussions, participated in additional Status Conferences on January 17, May 30, and June 20, 2018; conducted discovery, exchanged witness and exhibit lists.  Ultimately, the parties participated in an Administrative Hearing conducted on August 28, 2018.    

 

  1. The parties timely filed Post Hearing Briefs on September 28, 2018.

 

  1. Pursuant to Indiana Code § 4-21.5-3-14(d), administrative review is conducted de novo.

 

Findings of Fact[2]

  1. The real property at issue in the NOV is owned by individual Petitioner, Abydel Farms, LLC, having been conveyed by Warranty Deed executed by individual Petitioners, John M. Divine (Divine) and Linda M. Divine, on December 27, 2012.  Testimony of Divine; Respondent’s Exhibits 8 & 9; Petitioners’ Exhibit B. 

 

  1. Jon Eggen (Eggen), is the manager of the Department’s Division of Water Compliance and Enforcement Section.  Eggen conducted a property record search for the property at issue in the NOV.  Testimony of Eggen.  He agreed that the real property is owned by individual Petitioner, Abydel Farms, LLC.  Eggen’s testimony that the principals for Abydel Farms LLC, are individual Petitioners, John M. Divine and Linda M. Divine, was not contested and is deemed conclusory.  Testimony of Eggen.  Evidence that individual Petitioner, DCG Services, Inc., was, at the time of issuing the NOV, identified as the Registered Agent for Abydel Farms, LLC, was also not contested and is considered accurate.  Id.

 

  1. Suzanne Delay (Delay) is a Registered Professional Engineer in the State of Indiana working in the Compliance and Enforcement Section of the Department’s Division of Water.  Delay holds a degree in Agricultural Engineering from Purdue University and continues to engage in required continuing education.  Delay has been employed with the Department for 23 years in various sections of the Division of Water conducting permit

 

reviews, preparing floodway/floodplain determinations and fulfilling other responsibilities.  Testimony of Delay.

 

[VOLUME 15, PAGE 55]

 

  1. Delay explained the process of using HEC-RAS computing software, which is generally accepted for use in defining the limits of a floodway using available data from varying sources, including watershed and drainage area information, FEMA Flood Insurance Rate Mapping, and land elevation topographical mapping.  With respect to the real property at issue in the NOV she was tasked with preparing a floodway determination.  Id.

 

  1. Delay prepared a floodway determination for the area along Sulphur Creek that includes the real property owned by Abydel Farms, LLC that is at issue in the NOV.  Testimony of Delay, Respondent’s Exhibits 8 & 9.  No evidence was presented to contradict Delay’s floodway determination and it is accepted as accurate.  

 

  1. Master Conservation Officer Anthony W. Mann (Mann) who had been employed by the Department’s Law Enforcement Division for 27 years at the time of the Administrative Hearing has been assigned to Martin County for 21 years.  As particularly relevant to the instant proceeding Mann’s responsibilities as a Master Conservation Officer include the enforcement of the laws of the State of Indiana and the Department of Natural Resources. 

 

  1. On April 6, 2013, Mann was notified by dispatch to investigate a complaint that Divine was “‘digging in the creek’ above Indian Springs”, which activity was causing the water to be “cloudy and unsuitable”[3] at a distance downstream of the activity location.[4]  Testimony of Mann, Respondent’s Exhibit 27[5].

 

  1. Mann identified the location of the activity to be “at Sulphur Creek …just off of Cale Road in Martin County.”  Upon arrival, Mann observed Ziegler operating a track hoe, or excavator, digging in Sulphur Creek.  He also observed what he recognized to be field tile installation equipment being operated by Divine in the near vicinity.  Testimony of Mann.

 

  1. Mann observed Ziegler using the track hoe to remove silt, otherwise referred to in testimony as a sandbar, from a curve in Sulphur Creek.  Id.  Mann elaborated that excavation was occurring within the channel of Sulphur Creek, stating explicitly “he was literally scooping out the silt of the creek.” 

 

  1. Mann testified that he observed Ziegler depositing the silt removed from the channel along the banks of the channel “just within the reach of the track hoe; he wasn’t removing it from the floodway.” 

 

  1. Ziegler told Mann that he was conducting the activities in Sulphur Creek at the direction of Divine.  Testimony of Mann.  On April 6, 2013, Ziegler had removed approximately six beaver dams using the track hoe before Mann arrived and he had conducted similar activities on at least two prior occasions at the request of Divine.  Testimony of Ziegler.  Ziegler’s testimony was not disputed.

 

  1. Piles of trees debris and woody vegetation existed on the sides of Sulphur Creek.  Testimony of Adams, Respondent’s Exhibits 11 & 13.  Adams and Eggen testified that some of the trees had been cut while other trees had been removed by excavating the roots.  The Petitioners did not dispute Eggen’s testimony that the root balls from fully excavate trees were in locations on the north side of the railroad tracks where he presumed trees and roots were removed to create tillable land where farming is ongoing in 2018.  Divine countered that the tree debris and woody vegetation had been left in piles by the logging company that he hired to harvest trees from the property.  Testimony of Divine.    Divine’s testimony proves he was aware of the existence of piles of tree debris and woody vegetation. 

 

  1. The Petitioners offered no evidence in opposition to Adams’ testimony that the piles of tree debris and woody vegetation were not secured in any way. 

 

  1. Beaver activity can result in significant damage, which may be to crops or in the form of chewed off trees.  Particularly beavers’ construction of dams across waterways can cause or worsen flooding.  Testimony of Mann & Ziegler.  Mann did not observe beaver chewed trees in the vicinity, however, it is reasonably concluded from the evidence that standing trees had been removed from the area near Sulphur Creek by the timber harvest authorized by Divine while the piles of tree debris and other woody vegetation offered a readily available supply of material for constructing beaver dams.

 

  1. Mann acknowledged that the water level in Sulphur Creek on April 6, 2013 was above the outlet of the existing field tile, which would have prevented the field from draining.  Testimony of Mann & Divine. 

 

  1. Mann contacted Toby Adams (Adams) regarding the complaint lodged against the Petitioners.  Adams, an Environmental Manager in the Division of Water, has been employed by the Department for 20 years.  His responsibilities include conducting inspections in conjunction with the Department’s obligations to ensure compliance with and enforcement of the FCA in the southern portion of Indiana.  Adams holds a degree in Environmental Science from Indiana University’s School of Environmental Affairs.

 

  1. The Petitioners did not have a permit authorizing the activities that had and were continuing to occur on the real property specified in the NOV.  Testimony of Mann & Adams. 

 

  1. Adams, alone, conducted an inspection of the site on April 13, 2013 and was joined by Delay and Eggen in conducting a second subsequent inspection on April 30, 2013.  Adams has inspected the site at issue in the NOV on multiple occasions since April 30, 2013. 

 

  1. Despite Divine’s testimony that no excavation was conducted, the evidence presented by the Department supports the conclusion that excavation had occurred in the channel of Sulphur Creek.  “Spoil piles” of material removed from the creek channel had been dumped along the banks in a manner consistent with what Mann testified to having observed on April 6, 2013.  The spoil piles were void of any vegetation indicating to Adams that the piles had only recently been created.  Testimony of Adams, Delay & Eggen; Respondent’s Exhibits 14 & 15.  The creek bed was no longer smooth as if shaped by the flow of water, but instead, photographic evidence revealed the appearance of square shaped depressions consistent with the bucket of a track hoe.  Testimony of Delay, Respondent’s Exhibit 15.

 

  1. Adams testified that in “one or two locations where the stream meandered in a large pattern…it was excavated across that meander and it was cut off…” thereby altering the watercourse.  Respondent’s Exhibit 18.  With respect to the one of these locations for which the Department introduced specific evidence, Divine testified that water flow had been diverted because beaver had constructed a dam across the meander.  While no beaver dam remained in the area of the diversion when Adams was present in April 2013, Adams acknowledged that a meander could also be cut off by the existence of a beaver dam.  Testimony of Adams.  By cutting off the meander, also referred to in testimony as an oxbow, the stream is shortened and straightened causing increased water velocity, which contributes to downstream erosion.  This activity interferes with aquatic plant and animal life in the area deprived of water flow as well as in areas scoured by increased water velocity.  Testimony of Adams.  

 

  1. Eggen acknowledged uncertainty with respect to the NOVs allegation that the Petitioners had engaged in placing fill in the channel of Sulphur Creek. 

 

  1. The evidence is not sufficient to establish whether the Petitioners or beaver dams were responsible for the particular diversion of water discussed in Finding 34 as depicted in Respondent’s Exhibit 18.  

 

  1. Aerial photographs obtained from Google Earth were compared to understand the “history of the site” from a pictorial perspective.  Railroad tracks are evident running in an east/west direction across the center of the photograph.  In the bottom right corner, or southeast corner, of the photo Cale Road is depicted as a curving or winding road traveling in a general south-east/north-west direction.  Sulphur Creek, is visible to the

 

south of the railroad tracks meandering from the left, or west, side of the photo to the right, or east, to a point slightly beyond the middle of the photo where Sulphur Creek turns to run in a north-westerly direction, crossing the railroad tracks, and running generally parallel to Cale Road.  Respondent’s Exhibits 5 & 6, Testimony of Adams.  

 

[VOLUME 15, PAGE 56]

 

  1. Between 2008 and 2013 all vegetation existing between the south side of the railroad tracks and the southern-most reaches of the meanders of Sulphur Creek had been removed.  Also removed was all vegetation existing in a sizeable area north of the railroad tracks bounded by Cale Road to the west and an agricultural field to the north.  Id.

 

  1. By overlaying the floodway determination map prepared by Delay over the 2013 aerial photograph (an enlarged version of which was identified as Respondent’s Exhibit 6), it is evident that, with the exception of a small portion of land located north of the railroad tracks near the center of the photo, the real property at issue in the NOV, where excavation and clearing activities occurred, is located within the floodway.  Respondents’ Exhibit 9.

 

  1. The Department did not contradict Divine’s assertion that he has been farming part of the property at issue in the NOV since 1977 and during that entire time he has conducted ongoing maintenance of Sulphur Creek.  Testimony of Divine.  Divine asserted that when Sulphur Creek is blocked by beaver dams and other obstructions flood waters rise above the railroad tracks and traverse the field to the west flowing to Little Sulphur Creek and over the County Road where it floods homes owned by Elton and George Sipes. Id.  Divine was given permission by both George and Elton Sipes to maintain portions of Sulphur Creek located on property owned by them. Id. 

 

  1. Eggen recognized that stream maintenance such as “trimming trees and brush” may be conducted without a permit but excavation that disturbs the soil, as was done by the Petitioners, requires a permit issued by the Department.  Eggen testified, “Beaver dam removal…they actually come in with a grapple hook and remove the beaver dam, the woody debris, and remove it completely from the floodway, doesn’t require a DNR permit.  But excavating soil and dredging the stream, which is what we documented…that does require a permit.”

 

  1. Divine did not explain the methods he has used since approximately 1977 to maintain Sulphur Creek.

 

  1. The evidence of record does not indicate whether the Department was aware, until April 2013, of Divine’s activities to maintain Sulphur Creek.

 

  1. Eggen prepared the NOV at issue in this proceeding, which was signed by the Department’s Division of Water Director Michael Neyer, and issued on August 22, 2013.  Testimony of Eggen, Respondent’s Exhibit 19. 

 

  1. The NOV explains the nature of the violations for which it was issued and provides a description of the actions necessary to mitigate the violation along with time deadlines by which mitigation must be completed.  The NOV also provides information regarding the procedure by which the Petitioners and Ziegler were able to obtain Administrative Review.  Id.  The NOV also imposes an initial civil penalty of $5,000, with notice that additional penalties would be imposed in the event mitigation activities were not completed on the specified schedule.  Id.

 

  1. In the spring of 2018 vegetation had begun to grow in the floodway area along Sulphur Creek to the south of the railroad tracks but farming was occurring in the floodway area that had been cleared on north side of the railroad tracks.  Testimony of Adams & Divine; Petitioners’ Exhibits D through H. 

 

  1. Adams explained that the Department’s regulatory control of activities within floodways is to ensure that activities undertaken by one owner for their own benefit does not create a surcharge thereby backing up water and causing upstream flooding or, conversely, that the activity enhances the velocity of waters to the extent that resulting erosion related damage is significantly increased downstream. 

 

  1. Neither Mann, nor Eggen, was familiar with other individuals or entities the Petitioners inferred or alleged had conducted similar activities to those alleged in the NOV within Sulphur Creek or other waterways in Martin County.  Testimony of Mann & Eggen.  Evidence establishes that the Department had not issued Notices of Violation to the individuals or entities identified by the Petitioners.  Petitioners’ Exhibit A.  While the Petitioners established that the Department was unfamiliar with and did not issue notices of violation to the individuals and entities they inferred or alleged to have engaged in activities in floodways similar to what the Department alleged in the NOV, the Petitioners failed to provide any evidence that the Department was aware of activities undertaken by these other individuals or entities, either by receipt of a complaint or otherwise.  Similarly, the Petitioners failed to provide specific evidence that the activities engage in by other individuals and entities were in contravention to the FCA.

 

  1. For instance, Jerry Bussinger (Bussinger), a property owner in Martin County Indiana and neighbor of Divine, testified that he has never received a Notice of Violation from the Department.  However, Bussinger did not describe any activity he engaged in within the floodway that may have been in violation of the FCA such that issuance of a Notice of Violation by the Department may have been appropriate.  There was also no evidence presented by the Petitioners that the Department was aware of Bussinger’s activity within the floodway.

 

  1. To establish that the Department’s issuance of the NOV in this instance as compared to an alleged failure to act in other similar situations results from bias or prejudice against the Petitioners so as to support a contention that the Department’s action was arbitrary, capricious or produced by unjust motives, it would be necessary to establish (1) that the Department was aware that other individuals or entities were engaging in the activity, and (2) that the activity engaged in by the other individuals or entities were contrary to law. The record is void of such evidence.

 

Conclusions of Law

  1. As most appropriately applicable to the instant proceeding, Indiana Code § 14-28-1-1 declares:

(1) The loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people and the protection of property. To prevent and limit floods, all flood control works and structures and the alteration of natural or present watercourses of all rivers and streams in Indiana should be regulated, supervised, and coordinated in design, construction, and operation according to sound and accepted engineering practices so as to best control and minimize the extent of floods and reduce the height and violence of floods.

(2) The channels and that part of the flood plains of rivers and streams that are the floodways should not be inhabited and should be kept free and clear of interference or obstructions that will cause any undue restriction of the capacity of the floodways.

 

  1. Throughout the Administrative Hearing, the Petitioners focused solely upon Section (2) of Indiana Code § 14-28-1-1, as support for their conclusion that “it is uncontroverted that Indiana Code 14-28-1, which governs Flood Control, does not require a permit for routine, ongoing channel maintenance.”  Petitioners’ “Post Hearing Brief”, filed September 28, 2018.

 

  1. Indiana Code § 14-28-1-1 must be considered in conjunction with the remainder of the FCA.  Prewitt v. State of Indiana, 878 N.E.2d 184 (Ind.  2007).  “To effectuate legislative intent, we read sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute.”  City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007) citing, Ind. Dep't of Pub. Welfare v. Payne, 622 N.E.2d 461, 466 (Ind.1993).

 

  1. In addition to the expression of Legislative Intent at Indiana Code § 14-28-1-1, the Legislature also set forth in relevant part, at Indiana Code § 14-28-1-20(2), that:

Sec. 20. A person may not do any of the following:

….

(2) … erect, make, use, or maintain in or on any floodway, or suffer or permit the erection, making, use, or maintenance in or on any floodway, a structure, an obstruction, a deposit, or an excavation that will do any of the following:

(A) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.

(B) By virtue of the nature, design, method of construction, state of maintenance, or physical condition do any of the following:

(i) Constitute an unreasonable hazard to the safety of life or property.

 

(ii) Result in unreasonably detrimental effects upon the fish, wildlife, or botanical resources.

 

[VOLUME 15, PAGE 57]

 

  1. Further, Indiana Code § 14-28-1-22(c) through (f) offers as follows:

Sec. 22 …

(c) A person who desires to:

(1) erect, make, use, or maintain a structure, an obstruction, a deposit, or an excavation; or

(2) suffer or permit a structure, an obstruction, a deposit, or an excavation to be erected, made, used, or maintained;

in or on a floodway must file with the director a verified written application for a permit accompanied by a nonrefundable minimum fee of two hundred dollars ($200).

(d) The application for a permit must set forth the material facts together with plans and specifications for the structure, obstruction, deposit, or excavation.

(e) 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.

(3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.

(f) In deciding whether to issue a permit under this section, the director shall consider the cumulative effects of the structure, obstruction, deposit, or excavation. The director may incorporate in and make a part of an order of authorization conditions and restrictions that the director considers necessary for the purposes of this chapter.

 

  1. While the concept of maintaining floodways in a manner unencumbered and unrestricted by obstructions and other interference is recognized at Indiana Code § 14-28-1-1, the Legislature clearly recognized that some activities carried out within floodways, including the removal of obstructions by excavation and the deposit of material, requires regulatory control. 

 

  1. The Petitioners’ contention that the FCA authorizes the removal of obstructions from and conducting “ongoing channel maintenance” in floodways, presumably by any method necessary, including by excavation using a track hoe, without a permit is inconsistent with the express language of the FCA.

 

  1. In fact, the FCA, at Indiana Code § 14-28-1-22(b)(6) expressly provides, as Eggen noted in his testimony, that;

 

Sec. 22….

(b)…

(6) The removal of a logjam or mass of wood debris that has accumulated in a river or stream, subject to the following conditions:

(A) Work must not be within a salmonid stream designated under 327 IAC 2-1.5-5 without the prior written approval of the department's division of fish and wildlife.

(B) Work must not be within a natural, scenic, or recreational river or stream designated under 312 IAC 7-2.

(C) Except as otherwise provided in Indiana law, free logs or affixed logs that are crossways in the channel must be cut, relocated, and removed from the floodplain. Logs may be maintained in the floodplain if properly anchored or otherwise secured so as to resist flotation or dislodging by the flow of water and placement in an area that is not a wetland. Logs must be removed and secured with a minimum of damage to vegetation.

(D) Isolated or single logs that are embedded, lodged, or rooted in the channel, and that do not span the channel or cause flow problems, must not be removed unless the logs are either of the following:

(i) Associated with or in close proximity to larger obstructions.

(ii) Posing a hazard to navigation.

(E) A leaning or severely damaged tree that is in immediate danger of falling into the waterway may be cut and removed if the tree is associated with or in close proximity to an obstruction. The root system and stump of the tree must be left in place.

(F) To the extent practicable, the construction of access roads must be minimized, and should not result in the elevation of the floodplain.

(G) To the extent practicable, work should be performed exclusively from one (1) side of a waterway. Crossing the bed of a waterway is prohibited.

(H) To prevent the flow of sediment laden water back into the waterway, appropriate sediment control measures must be installed.

(I) Within fifteen (15) days, all bare and disturbed areas must be revegetated with a mixture of grasses and legumes. Tall fescue must not be used under this subdivision, except that low endophyte tall fescue may be used in the bottom of the waterway and on side slopes.

 

  1. A “logjam” was defined by the Commission to include “an accumulation of lodged trees, root wads, or other debris that impedes the ordinary flow of water through a waterway”, evidenced by the fact that it “traverses the waterway”, “causes upstream ponding”, or results in significant stream bank erosion.”  312 IAC 10-2-26.   However, included in the definition of logjam is the caveat that logjam removal does not include the removal of resultant sandbars, sedimentation or accumulations of stone or gravel.  Id.

 

  1. The NOV issued by the Department alleges that the Petitioners conducted “unpermitted excavation within the channel of Sulphur Creek, excavation of tree stumps and roots within the floodway, fill placement within the floodway, and filling of the existing stream channel.”

 

  1. Evidence is not sufficient to conclude that the Petitioners engaged in the “filling of the existing stream channel.”

 

  1. The evidence in this instance that the Petitioners were attempting to remove beaver dams and other obstructions from Sulphur Creek is accepted as true. 

 

  1. Regardless, the Petitioners’ intent, the Petitioners’ efforts, which included scooping silt out of the channel of Sulphur Creek with a track hoe, is not consistent with Indiana Code § 14-28-1-22(b)(6)(C)’s directive to remove the logs “with a minimum of damage to vegetation.”
  2. Silt and sedimentation removal from the channel or from within the floodway of Sulphur Creek constitutes an excavation in a floodway, specifically from the stream channel, an activity that required the Petitioners to obtain a permit.  Indiana Code § 14-28-1-22(d).

 

  1. The removal of trees from within a floodway by the excavation of the entire trunk and roots also constitutes an excavation, which required the Petitioners to obtain a permit. Id., and Yater v. Department of Natural Resources, 6 CADDNAR 161, 163 (1994).

 

  1. Further, the installation of field drainage tile being undertaken by Divine on April 6, 2013 as observed by Mann, constitutes excavation in the floodway requiring a permit from the Department.

 

  1. The creation of spoil piles within the floodway of Sulphur Creek of the silt or sedimentation removed from Sulphur Creek’s channel constitutes the “deposit” of fill in the floodway, which required the Petitioners to obtain a permit in accordance with Indiana Code § 14-28-1-22(d).

 

  1. The evidence established through the Administrative Hearing that tree debris and woody vegetation removed from the channel of Sulphur Creek by the Petitioners was deposited in the floodway within the reach of the track hoe is not consistent with the requirement to remove the logs and tree debris from the floodplain or secure it “to resist flotation or dislodging by the flow of water.”  Indiana Code § 14-28-1-22(b)(6)(C). 

 

  1. Because the tree debris and other woody vegetation was not secured, the piles of woody vegetation and tree debris are appropriately characterized as deposits within the floodway the placement of which required a permit.  Indiana Code § 14-28-1-22(d) and Yater, supra.

 

  1. The timber company conducting the timber harvest under authority granted by the Petitioners’ created piles tree debris and woody vegetation within the floodway of Sulphur Creek.  These piles constitute deposits within the floodway, the occurrence of which requires a permit.  Id.  While the timber company may have created the piles of tree debris, the Petitioners, who are the owner and the principals of the owner of the property who authorized the timber harvest, were also responsible not to “permit the erection, making, use, or maintenance in or on any floodway … a deposit…” Indiana

Code §14-28-1-20(2).  Similarly, Ziegler actually carried out the excavation of the channel of Sulphur Creek at the direction of Divine, a principal in Abydel Farms, LLC, who permitted and caused the excavation to occur.  Furthermore, the evidence support the conclusion that Divine was personally involved in excavation activities within the floodway of Sulphur Creek by engaging in the installation of field drainage tile within the floodway. 

 

[VOLUME 15, PAGE 58]

 

  1. The evidence presented at the Administrative Hearing established that the channel of Sulphur Creek was excavated and fill placed in the floodway by Ziegler at the direction of Divine, who is a principal in Abydel Farms, LLC.  The evidence further established that Divine personally engaged in excavation activities within the floodway of Sulphur Creek and engaged a timber company that Divine permitted to create deposits within the floodway.  Further, in an apparent effort to expand the size of its agricultural field, Divine permitted and caused the removal of trees and excavation of tree roots in the floodway on the north side of the railroad tracks.

 

  1. Indiana Code § 14-25.5-2-2 authorizes the Department to issue a “written notice of violation if a person violates”, as applicable in this instance, Indiana Code §§ 14-28.

 

  1. The content of the NOV issued by the Department complies with Indiana Code § 14-25.5-2-3.

 

  1. At Indiana Code § 14-28-1-36, the FCA expressly provides that “In addition to other penalties prescribed by this chapter, the director may impose a civil penalty under IC 14-25.5-4.”  The Department properly assessed a $5,000 penalty upon the Petitioners and Ziegler.

 

  1. In accordance with Indiana Code § 14-25.5-2-5, the NOV has not become effective as to the Petitioners because, within 30 days of issuance by the Department, the Petitioners initiated this proceeding for Administrative Review in accordance with Indiana Code § 4-21.5-3-6.[6]

 

  1. The Department bears the burden of proving by substantial evidence the facts contained within the NOV.  Yoder v. DNR & Bouwkamp, 12 CADDNAR 88, 100 (2009).  The Department has fulfilled this burden with respect to all the allegations contained within the NOV, except to the extent the NOV alleges the Petitioners filled a portion of the stream channel of Sulphur Creek. 

 

  1. The record is void of evidence to support the Petitioners’ contention that the Department’s action in issuing the NOV was biased, arbitrary or capricious.

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order, Paragraphs 78 through 81, has been relocated to the “Final Order” section at the beginning of this document.]

 

 

                                                           


[1] The Petitioners, for the first time in their Post hearing Brief, raised an issue that Indiana Code § 14-10-2-2, by which ALJ Jensen was appointed and that also provides that ALJ Jensen, as the Director of the Commission’s Division of Hearings, may also appoint Administrative Law Judges, is unconstitutional based upon the United States Supreme Court’s holding in Lucia v. S.E.C., 138 S.Ct. 2044, decided June 21, 2018.  The Petitioners failed to seek disqualification of ALJ Jensen and raised the issue only after the conclusion of the Administrative Hearing.  ALJ Jensen considers the issue to have been waived,   

[2]   A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriately considered a Finding of Fact shall so be considered.

[3] Instances in which the ALJ has identified testimony in quotations reflects the ALJ’s understanding of the verbatim testimony from the audio recording.  If a transcript later reveals the testimony to be different than represented here by the ALJ, the transcript shall control.

[4] The statement made by the complaining party as contained within Respondent’s Exhibit 27 was objected to by the Petitioners as hearsay.  The objection was noted and it was acknowledged that the statement cannot be the sole evidence supporting a Finding or Conclusion in this proceeding.

[5] Respondent’s Exhibit 27, as admitted in the record, contained the dates of birth and drivers license numbers of Petitioner, John M. Divine and of George R. Ziegler.  With the agreement of counsel for the parties to this proceeding, which is noted in the record of the Administrative Hearing, the exhibit was altered by the ALJ to redact these pieces of information.

[6] Ziegler did not seek Administrative Review of the Department’s NOV.  The NOV became effective in all respects as to Ziegler 30 days after issued by the Department.