Preview:

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: PETER M. RACHER STEPHANIE T. ECKERLE JOSH S. TATUM Plews Shadley Racher & Braun LLP Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: Squaw Creek Coal Company: E. SEAN GRIGGS DAVID R. GILLAY Barnes & Thornburg LLP Indianapolis, Indiana Indiana Department of Natural Resources: GREGORY F. ZOELLER Attorney General of Indiana FRANCES BARROW Deputy Attorney General Indianapolis, Indiana

FILED
Mar 21 2012, 9:31 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
BIL MUSGRAVE, Appellant-Respondent, vs. SQUAW CREEK COAL COMPANY and INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellees-Petitioners. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 49A05-1104-MI-164

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Michael D. Keele, Judge Cause No. 49D07-1001-MI-3153

March 21, 2012 OPINION - FOR PUBLICATION BAILEY, Judge

Case Summary Bil Musgrave ("Musgrave"), a former coal miner, appeals the trial court's order in favor of Squaw Creek Coal Company ("SCCC") and the Indiana Department of Natural Resources ("DNR") on SCCC's petition for judicial review. SCCC petitioned the trial court for judicial review of an order issued by an Indiana Natural Resources Commission ("Commission") Administrative Law Judge ("ALJ") vacating the DNR's decision to release certain portions of SCCC's reclamation bond on its surface mining permit, and the trial court reversed. The DNR cross-appeals the trial court's order. We affirm. Issues The parties raise several issues for our review, which we consolidate and restate as the following three issues: I. Whether the trial court erred by denying Musgrave's motion to dismiss SCCC's petition for judicial review for lack of jurisdiction because SCCC did not serve summonses upon the Commission, the DNR, and the Indiana Attorney General, and did not pay the Marion County Superior Court filing fee; Whether Musgrave is collaterally estopped from challenging the DNR's decision to release the reclamation bond at issue; and Whether the trial court erred by reversing the ALJ's order and remanding for entry of judgment in favor of SCCC and the DNR.

II.

III.

2

Facts and Procedural History SCCC was formed in 1960 as a joint venture between Alcoa, Inc. and Peabody Coal Company to mine the coal from Squaw Creek Mine. The extracted coal was used to power Alcoa's nearby aluminum production facility on the banks of the Ohio River. Musgrave is a former miner who worked at Squaw Creek Mine. The Squaw Creek Mine was mined in segments using a method called "surface mining." (App. 636) Using this method, SCCC drilled and blasted the overburden1 that covered the coal, removed the blasted and drilled pieces with draglines and shovels, and dumped the pieces to the side, making "structureless pile[s] of debris" (App. 692) that ranged from twenty-five to eighty feet tall. The exposed coal was then extracted and transported to a processing area using "haul roads" that were approximately fifty feet wide and inclined because the mine floor was well below the original grade of the land. (App. 636) Between 1965 and 1979, Alcoa used abandoned haul roads in Squaw Creek Mine to dispose of waste generated at its aluminum production facility, such as chromium sludge, spent pot lining, and tarry wastewater and tars from tunnel kilns. Because the haul roads were lower than the surrounding spoil, the waste was dumped at relatively low levels. Alcoa dumped its wastes in coordination with the Indiana Department of Health, the predecessor to the Indiana Department of Environmental Management (IDEM), and the wastes were covered with native overburden. It is estimated that Alcoa dumped its waste at twelve locations in Squaw Creek Mine, but some former miners assert that waste was dumped in

1

Overburden is material of any nature except topsoil that overlies a coal deposit. 312 IAC

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Indiana Law