On February 24, 2020 the Indiana Supreme Court denied to take up the case of Indiana Department of Natural Resources v. Kevin Prosser. The case has spanned five years and three courts. The Indiana Supreme Court denied transfer of the case because “… (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.” As a result, the ruling stands that the Indiana resident, Kevin Prosser, does not have the right to construct a sea wall on his Lake Manitou property.
In 2015, Prosser applied for a permit with the Department of Natural Resources (DNR) to construct a concrete sea wall on his Lake Manitou property in Rochester, Indiana. The Indiana DNR denied his application. The DNR claimed that the area was not a developed area under Indiana law and that construction would significantly affect wildlife, fish, and plant life at the site. Prosser claimed that a sea wall was necessary to protect his property because a dredging operation that had occurred in 1947 or 1948 had increased the overall length of Lake Manitou’s shoreline.
After the DNR denied his application, Prosser appealed for administrative review. A DNR administrative law judge affirmed the denial, and the Natural Resources Commission that position.
In response, Prosser sought judicial review in Fulton Circuit Court. The circuit court reversed the DNR’s denial of Prosser’s application. The DNR contended that the trial court erred in its reversal, and the case was then taken up by the Court of Appeals of Indiana. The Court of Appeals reversed the lower court’s decision on August 1, 2019, denying Prosser’s application.
The Indiana Supreme Court denied transfer of the case, meaning that the denial of Prosser’s permit stands.
In a separate opinion, Justice Geoffrey Slaughter cast doubt on the process whereby Prosser’s permit was denied. Slaughter wrote that “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.” However, Slaughter also expressed “deep concerns with prevailing administrative law as codified in AOPA and interpreted by our courts.” Slaughter did not deny a future revisitation of delegation. He wrote, “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.”
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