[CITE: DNR v. Shields, 14 CADDNAR 19 (2015)]
[VOLUME 14, PAGE 19]
Cause #:07-234F
Caption: DNR v. Shields
Administrative Law Judge: Jensen
Attorneys: Wyndham; Mead
Date: June 12, 2015
ENTRY FOR INCLUSION OF DISPOSITION OF AGREED ORDER FOLLOWING REMAND WITH INSTRUCTIONS BY AOPA COMMITTEE
ORDER
The applicable statute of limitations with regard to actions under the Timber Buyers Statute is ten years pursuant to IC 34-11-1-2(a). Notwithstanding the applicability of the Uniform Commercial Code at IC 25-36.5-1-3.2(b) for determining the value of timber in a proceeding under that subsection and IC 4-21.5-3-8, reference to the Uniform Commercial Code in the Timber Buyers Statute does not govern the character of the proceeding. Subject to possible future amendments by the Indiana General Assembly, the Uniform Commercial Code does not determine the statute of limitations under the Timber Buyers Act.
FINDINGS
1. On November 18, 2008, the committee of the Natural Resources Commission (the “Commission”) formed under 312 IAC 3-1-12(d), and commonly referred to as the “AOPA Committee”, convened for a regularly scheduled meeting. Included on the agenda, as applicable to this proceeding, were the Consideration of Findings of Fact and Conclusions of Law with Partial Non-Final Order of the Administrative Law Judge and any Objections to the Non-Final Order in DNR v. Shields, Administrative Cause No. 07-234F. See Minutes of the AOPA Committee of the Natural Resources Commission, November 18, 2008, http://www.in.gov/nrc/files/AOPA_November_2008._Minutes.pdf.
2. For determination by the AOPA Committee in this proceeding was the applicable statute of limitation or statutes of limitation for a complaint alleging a wrongful harvest of timber under IC 25-36.5 (the “Timber Buyers Statute”). Following oral argument, the AOPA Committee determined the administrative law judge applied the incorrect statute of limitation and remanded the proceeding with instructions.
3. On remand the parties tendered an Agreed Order to the administrative law judge that would address all issues. The administrative law judge approved the Agreed Order for legality and form and submitted it to the Commission’s secretary. On July 7, 2011, the secretary adopted the Agreed Order as the final agency action of the Commission.
4. The Agreed Order provided, in pertinent part, that the administrative law judge shall “enter as an Order of the Natural Resources Commission incorporating the decision of the…AOPA Committee of November 18, 2008 that the applicable statute of limitations with regard to actions under the Timber Buyers Statute…, is ten (10) years pursuant to IC 34-11-1-2(a), and, notwithstanding the applicability of the provisions of the Uniform Commercial Code (IC 26-1-2) in IC 25-36.5-1-3.2(b) for purposes of determining the value of timber in an administrative action filed under that section and IC 4-21.5-3-8, reference to the Uniform Commercial Code in the Timber Buyers Statute does not determine the character of that action and should not be used to determine the statute of limitations for that statute, subject to future amendments by the Indiana General Assembly.”
5. IC 4-21.5-3-32 provides that an agency shall index and make available all written final orders for public inspection and copying. In a resolution approved on November 22, 1988, the Commission adopted CADDNAR as the agency index under IC 4-21.5-3-32 for agency actions subject to its administrative review. The Commission also specified that decisions in CADDNAR may be used as precedent for an agency action under IC 4-21.5. Upon request of the parties, agreed orders may be included in CADDNAR if they are found to have addressed novel legal issues. Establishment of Division of Hearings; Indexing of Final Adjudicative Agency Decisions; Transcript Fees, Information Bulletin #1 (Third Amendment), Natural Resources Commission, 2012321-IR-31212014NRA (March 21, 2012).
6. As reported in the AOPA Committee minutes of November 18, 2008, this proceeding was understood by the parties, the administrative law judge, and the members of the AOPA Committee to present important issues of first impression pertaining to applicability of a statute or statutes of limitation to the Timber Buyers Statute. Following a prior request by the parties to report the disposition as a final order of the Commission, the administrative law judge finds that the final order addresses novel legal issues and should be included in CADDNAR. The administrative law judge also finds that inclusion would be consistent with the direction of the AOPA Committee, resulting from consideration of the Claimants’ motion to index an agreed order in Anchor Holdings, LLC, et al. v. Department of Natural Resources and Howard, Administrative Cause No. 14-049W, during its regular meeting of August 28, 2014. See AOPA Committee of the Natural Resources Commission, August 28, 2014 Meeting Minutes, http://www.in.gov/nrc/files/nrc_aopa_aug_2014_mintues.pdf.