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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. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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