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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA Fulton County man will not be permitted to build a concrete seawall on his lakefront property after the Indiana Supreme Court unanimously denied transfer to his case. But Justice Geoffrey Slaughter wrote separately to invite legal challenges to the system for adjudicating agency legal disputes like the instant case out of the Indiana Department of Natural Resources.
Kevin Prosser applied for a permit to construct a concrete seawall on his property in 2015, but the DNR denied his application. An administrative law judge affirmed, as did the Natural Resources Commission, finding insufficient clarity and definition as to whether the Lake Manitou shoreline had lengthened due to 1940s-era dredging.
But the Fulton Circuit Court reversed the denial, finding Prosser had established as required that the property was a “developed area.” The court also said the ALJ was unjustified in its decision to discount witness testimony.
The Court of Appeals, however, reinstated the denial in August 2019, finding the ALJ’s conclusion was “supported by substantial evidence.” The Supreme Court denied transfer to the COA decision Monday.
“… (U)nder Indiana’s Administrative Orders and Procedures Act, if there is sufficient evidence in the record, a reviewing court must defer to an agency’s factfinding,” Slaughter wrote in his one-page concurrence to the denial of transfer. “Here, there was enough evidence to support the agency’s findings, so the trial court should have afforded the agency the deference the AOPA requires. Thus, the court of appeals properly reversed the trial court’s contrary judgment.”
But Slaughter raised “deep concerns with prevailing administrative law as codified in AOPA and interpreted by our courts.” The current system requires courts to defer to agency decision making, while the agency is tasked with finding facts and interpreting statutes.
“Neither judge nor jury finds facts,” the justice wrote. “And no court gives a fresh, plenary interpretation to the agency’s determination of law or to its application of law to the facts.
“In a future case, where the issues are raised and the arguments developed, I am open to entertaining legal challenges to this system for adjudicating the legal disputes that our legislature assigns agencies to resolve in the first instance, subject only to a highly circumscribed right of judicial review as set forth in the AOPA.”
The case is Indiana Department of Natural Resources v. Kevin Prosser, 18A-MI-2644.
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