                                                                         FILED
                                                                     Apr 14 2020, 8:21 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
Mark J. Crandley                                            INDIANA DEPARTMENT OF
Barnes & Thornburg LLP                                      NATURAL RESOURCES
Indianapolis, Indiana                                       Curtis T. Hill, Jr.
                                                            Attorney General

                                                            Frances Barrow
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana

                                                            ATTORNEY FOR APPELLEES
                                                            WALTER B. WOODHAMS AND
                                                            DOROTHY WOODHAMS, ET AL.
                                                            Anthony R. Spahr
                                                            Peru, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

Miami County and Miami                                      April 14, 2020
County Board of                                             Court of Appeals Case No.
Commissioners,                                              19A-MI-2099
Appellants-Petitioners,                                     Appeal from the Marion Superior
                                                            Court
        v.                                                  The Honorable Patrick J. Dietrick,
                                                            Judge
Indiana Department of Natural                               The Honorable Therese Hannah,
Resources,                                                  Commissioner
Appellee-Respondent,                                        Trial Court Cause No.
                                                            49D12-1806-MI-25827
         and



Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020                           Page 1 of 9
      Walter B. Woodhams and
      Dorothy Woodhams, et al.,
      Appellees-Statutory Parties




      Crone, Judge.


                                                 Case Summary
[1]   In Miami County, a developer built a subdivision with dams, and he dedicated

      easements on top of the dams for public roads. The Miami County

      Commissioners (“the Commissioners”) accepted the roads into the county

      highway system and obligated the county to maintain them. Almost a decade

      later, the Indiana Department of Natural Resources (“the DNR”) sent notices

      of violation of the Dam Safety Act (“the Act”) to Miami County (“the

      County”) 1 and the owners of the property upon which six of the dams are

      located (“the Owners”), including Walter B. and Dorothy Woodhams. The

      notices include findings that the County and the Owners are the owners of the

      dams, that the dams are unsafe, and that the County and the Owners are

      required to fulfill their statutory duty to maintain the dams in a safe condition.

      Both the County and the Owners asked the Indiana Natural Resources

      Commission (“the NRC”) to review the DNR’s finding that they are the owners

      of the dams. The NRC issued an order finding that the County is an owner of




      1
          Where appropriate, we also refer to the Commissioners and the County collectively as “the County.”


      Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020                                Page 2 of 9
      the dams, as defined by the Act, but only to the extent of its obligation to

      maintain the roads, and that the Owners are also owners of the dams and are

      jointly and severally responsible for repairing or reconstructing them. Both the

      County and the Owners petitioned for judicial review of the NRC’s decision.

      The trial court issued an order finding that the County is an owner of the dams

      and is solely responsible for repairing or reconstructing them.


[2]   The County now appeals, arguing that it is not an owner of the dams and

      therefore is not responsible for repairing or reconstructing them. We agree and

      therefore reverse and remand for further proceedings.


                                   Facts and Procedural History
[3]   The relevant facts are undisputed. Around 1990, Russ Bellar began developing

      property in Miami County that became the Hidden Hills subdivision. Bellar

      constructed seven dams to make recreational lakes for the subdivision’s

      residents. In the subdivision plats, Bellar dedicated sixty-foot easements to be

      used for public roads, some of which were constructed on top of the dams. The

      Commissioners approved Bellar’s plats. In 2005, the Commissioners adopted a

      resolution accepting the subdivision’s roads into the county highway system

      and obligating the County to maintain them.


[4]   In 2014, the DNR issued notices of violation of the Act to the County and the

      Owners, who have fee-simple title to the property upon which six of the dams

      are located. The notices include findings that the County and the Owners are

      the owners of the dams, that the dams are unsafe, and that the County and the

      Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020         Page 3 of 9
      Owners are required to take certain actions to fulfill their statutory duty to

      maintain the dams in a safe condition. 2 Both the County and the Owners asked

      the NRC to review the DNR’s finding that they are the owners of the dams. 3


[5]   The Act defines “owner” as


                 an individual, a firm, a partnership, a copartnership, a lessee, an
                 association, a corporation, an executor, an administrator, a
                 trustee, the state, an agency of the state, a municipal corporation,
                 a political subdivision of the state, a legal entity, a drainage
                 district, a levee district, a conservancy district, any other district
                 established by law, or any other person who has a right, a title, or
                 an interest in or to the property upon which the structure [i.e., the
                 dam and its appurtenant works 4] is located.


      Ind. Code § 14-27-7.5-4. After a hearing, the NRC issued an order finding that

      the County is an owner of the dams by virtue of its easement interest in the

      roads on top of the dams and is “only liable for the aspects of a roadway

      [dam’s] repair, reconstruction, decommissioning and maintenance reasonably

      necessary to fulfill its authority and obligation to construct, repair and maintain




      2
        See Ind. Code § 14-27-7.5-7(a) (“The owner of a structure shall maintain and keep the structure in the state
      of repair and operating condition required by the following: (1) The exercise of prudence. (2) Due regard for
      life and property. (3) The application of sound and accepted technical principles.”).
      3
        The County filed a motion for summary judgment as to whether it is an owner of the dams, which the NRC
      denied. The Owners assert that the County failed to exhaust its administrative remedies, and therefore
      waived its right to bring this appeal, because it did not appeal that interlocutory order. The Owners cite no
      relevant authority for this assertion. Cf. Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 (Ind. 2004) (“A claimed error
      in an interlocutory order is not waived for failure to take an interlocutory appeal but may be raised on appeal
      from the final judgment.”).
      4
          See Ind. Code § 14-27-7.5-5 (defining “structure”).


      Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020                                  Page 4 of 9
      a public road traversing the roadway dam.” Appellants’ App. Vol. 2 at 88. 5

      The order further finds that the Owners, “who are the fee title owners of one or

      more of the dams are jointly and severally liable for the repair, reconstruction,

      decommissioning and maintenance of the dam for which they hold fee title.”

      Id. 6


[6]   Both the County and the Owners petitioned for judicial review of the NRC’s

      decision. After a hearing, the trial court issued an order that states,


               The Hidden Hills streets, … accepted into the Miami County
               highway system, bestowed upon the County title to an easement
               in the streets which is sufficient to constitute ownership in the
               dams. I.C. § 14-27-7.5-4. The County became an owner when it
               accepted the roads into the county highway system. That the
               now-crumbling dams upon which the accepted roads were built
               are a burden, should have been contemplated by the parties when
               the easement was acquired. The county cannot reject their [sic]
               ownership interest in the roads, accepted over twenty years ago,
               simply because the underlying dams are now in the state of
               disrepair.

               The County accepted the duty to maintain the roads when it
               accepted the roads into the county highway system. This
               maintenance also includes the responsibility to maintain the




      5
        Indiana Appellate Rule 50(C) provides that an appendix’s “table of contents shall specifically identify each
      item contained” in the appendix. For nine of the County’s eleven appendix volumes, the table of contents
      identifies only the administrative record volume number, which has made searching for specific documents
      unnecessarily burdensome. “For future reference, tables of contents for appendices must be more detailed.”
      Harrison v. Veolia Water Indianapolis, LLC, 929 N.E.2d 247, 248 n.1 (Ind. Ct. App. 2010), trans. denied.
      6
       The Owners take issue with the NRC’s imposition of joint and several liability because it quoted from a
      medical malpractice case to explain the concept. Joint and several liability applies in various contexts, and
      we find nothing wrong with the NRC’s reliance on a medical malpractice case for general legal principles.

      Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020                                  Page 5 of 9
              structure upon which the roads were built.

              ….

              The Court reverses the Final Order of the [NRC] as to
              [apportionment of responsibility] finding that Miami County, as
              owner of title to an easement for the streets which traverse the
              Hidden Hills dams, is an owner of the property upon which the
              structure is located and responsible for all aspects of the repair
              and reconstruction of the six roadway dams under consideration.


      Appealed Order at 11-12. The County now appeals.


                                       Discussion and Decision
[7]   In an appeal involving an administrative agency’s decision, our standard of

      review is governed by the Administrative Orders and Procedures Act, and we

      are bound by the same standard of review as the trial court. Walker v. State Bd.

      of Dentistry, 5 N.E.3d 445, 448 (Ind. Ct. App. 2014), trans. denied. “We do not

      try the case de novo and do not substitute our judgment for that of the agency.”

      Id.


              We will reverse the administrative decision only if it is: (1)
              arbitrary, capricious, an abuse of discretion, or otherwise not in
              accordance with law; (2) contrary to a constitutional right,
              power, privilege, or immunity; (3) in excess of statutory
              jurisdiction, authority, or limitations, or short of statutory right;
              (4) without observance of procedure required by law; or (5)
              unsupported by substantial evidence.


      Id. (citing Ind. Code § 4-21.5-5-14).



      Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020              Page 6 of 9
[8]   “[A] court may not overturn an administrative determination merely because it

      would have reached a different result.” Id. “An interpretation of statutes and

      regulations by an administrative agency charged with the duty of enforcing

      those regulations and statutes is entitled to great weight unless this

      interpretation would be inconsistent with the law itself. The reviewing court

      should generally accept an agency’s reasonable interpretation of regulations and

      statutes.” Id. (citation omitted). “The burden of demonstrating the invalidity of

      the agency action is on the party who asserts the invalidity.” Id.


[9]   The County argues that it is not an “owner” of the dams as defined by the Act.

      “[O]ur goal in statutory interpretation is to determine, give effect to, and

      implement the intent of the legislature as expressed in the plain language of its

      statutes.” Fight Against Brownsburg Annex. v. Town of Brownsburg, 32 N.E.3d 798,

      805 (Ind. Ct. App. 2015). “The first rule of statutory construction is that

      ‘[w]ords and phrases shall be taken in their plain, or ordinary and usual,

      sense.’” State v. Prater, 922 N.E.2d 746, 749 (Ind. Ct. App. 2010) (quoting Ind.

      Code § 1-1-4-1(1)), trans. denied. “If a statute is unambiguous, that is,

      susceptible to but one meaning, we must give the statute its clear and plain

      meaning.” Brownsburg, 32 N.E.3d at 805 (quoting Curley v. Lake Cty. Bd. of

      Elections & Registration, 896 N.E.2d 24, 34 (Ind. Ct. App. 2008), trans. denied

      (2009)).


              We review the statute as a whole and presume the legislature
              intended logical application of the language used in the statute,
              so as to avoid unjust or absurd results. We must consider not
              only what the statute says but what it does not say. In other

      Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020          Page 7 of 9
               words, we are obliged to suppose that the General Assembly
               chose the language it did for a reason.


       Id. (citations, quotation marks, and brackets omitted).


[10]   The County advances a multifaceted argument that it is not an “owner” of the

       dams pursuant to the Act and therefore should not be responsible for repairing

       or reconstructing them. We agree, for the simple reason that the County does

       not have “an interest in or to the property upon which the structure is located.”

       Ind. Code § 14-27-7.5-4 (emphasis added). Only the Owners have an interest in

       the property “upon which” the dams are located, and only they have a duty to

       repair or reconstruct the dams pursuant to the Act. 7 The County has only an

       easement interest in the roads on top of the dams, and it is obligated to maintain




       7
         Under the NRC’s and the trial court’s reasoning, a nonprofit group that owns an easement for a hiking path
       on top of a dam would be considered an “owner” of the dam pursuant to the Act and therefore would be
       responsible for maintaining the entire dam. This strikes us as an unjust and absurd result.

       Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020                               Page 8 of 9
       only the roads pursuant to its 2005 resolution. 8 Consequently, we reverse and

       remand for further proceedings consistent with this opinion. 9


[11]   Reversed and remanded.


       May, J., and Pyle, J., concur.




       8
         The Owners observe, “It is a fundamental maxim that the title to land extends down to the center of earth,
       and up to the heavens, within the lines of gravitation.” Owners’ Br. at 26-27 (quoting Pyramid Coal Corp. v.
       Pratt, 229 Ind. 648, 652, 99 N.E.2d 427, 429 (1951)). But the Owners cite no authority for the proposition
       that the County’s easement interest in the roads on top of the dams extends to the property upon which the
       dams are located, let alone to the center of the earth. Cf. Rehl v. Billetz, 963 N.E.2d 1, 6 (Ind. Ct. Ap. 2012)
       (“It is well established that easements are limited to the purpose for which they are granted.”). The Owners
       also observe that the County has “enjoyed increased property tax receipts” resulting from the dam-created
       waterfronts, as well as “taxpayer funding for the roads [the County] maintains over the dams.” Owners’ Br.
       at 39. These considerations are irrelevant as to whether the County is an “owner” of the dams pursuant to
       the Act, and there is no indication that the County has received any taxpayer funding to maintain the dams.
       9
        The DNR argues that assigning the County “responsibility for dam repairs more effectively achieves the
       purpose of the Dam Safety Act” and frets that “even one holdout among the Hidden Hills residents for a
       particular dam could jeopardize the goal of achieving effective dam repair[.]” DNR’s Br. at 13, 16. The
       possibility of Owners shirking their statutory duty to repair the dams is not a sufficient justification for
       disregarding the plain language of the Act.

       Court of Appeals of Indiana | Opinion 19A-MI-2099 | April 14, 2020                                    Page 9 of 9
