COA reverses finding IDEM breached agreement

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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.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

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