ILNews

COA reverses finding IDEM breached agreement

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals reversed the finding that the Indiana Department of Environmental Management breached a settlement agreement because the trial court didn't have subject matter jurisdiction to determine whether it committed a breach.

IDEM and NJK Farms entered into a settlement agreement in 2005 after a petition for judicial review was remanded to Marion Superior Court. The two parties were in a dispute about the denial of a permit application to operate a landfill in Fountain County. The agreement laid out the terms required for IDEM to grant the permit. While a permit application was pending before IDEM in 2008 and scheduled for a public comment period, the Indiana legislature passed a law concerning permits for solid waste landfills in counties without comprehensive zoning regulations.

Fountain County at that time didn't have a zoning ordinance, but a month later enacted regulations that included landfills. IDEM asked NJK to submit a new application because of the statute and the new Fountain County ordinances. NJK instead filed a motion with the trial court alleging IDEM breached the settlement agreement. IDEM then denied the permit and NJK filed a petition for review with the Office of Environmental Adjudication that it find the trial court had subject matter jurisdiction. An administrative law judge stayed the petition pending ruling of the trial court. The trial court found it had exclusive jurisdiction and that IDEM breached the settlement.


On interlocutory appeal in Ind. Dept. of Environmental Management v. NJK Farms, Inc., No. 49A02-0902-CV-123, the Court of Appeals concluded Marion Superior Court didn't have jurisdiction over the matter, relying on Ind. Dept. of Environmental Management v. Raybestos Products Co., 897 N.E.2d 469 (Ind. 2008). The Indiana Supreme Court held that the exclusive means for review of IDEM's actions was by petition for review by the OEA and that money damages aren't authorized under the state Administrative Orders and Procedures Act.

In the instant case, IDEM is an agency subject to the AOPA, and IDEM's entry into the settlement agreement and actions following the agreement regarding NJK's permit application were agency actions, wrote Judge Michael Barnes. NJK argued that Raybestos is inapplicable and the settlement agreement was a contract and not an agency action because it arose out of a judicial proceeding instead of an administrative one. NJK argued if an agreement was entered to resolve issues during the administrative process, the AOPA would apply and damages couldn't be awarded. If an agreement was entered after a petition for judicial review, then AOPA wouldn't apply and the agency could be liable for damages.

That interpretation would lead to illogical results contrary to the purpose of the AOPA, wrote Judge Michael Barnes. "Clearly, it is better for such issues to be presented in the typical administrative review process prior to consideration by the trial court," he wrote. "The administrative review process allows IDEM to correct its own mistakes and allows those with the requisite expertise a first look at the issues." The judicial review of the OEA's determination in 2000 that NJK was not a real party in interest didn't confer jurisdiction on the Marion Superior Court to directly review all further actions of IDEM regarding NJK's permit application, wrote the judge. Money damages to NJK aren't authorized under the AOPA. The case was remanded for further proceedings.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

ADVERTISEMENT