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ATTORNEYS FOR APPELLANTS Gregory F. Zoeller Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana Julie E. Lang Deputy Attorney General Indianapolis, Indiana

ATTORNEYS FOR APPELLEES Peter G. Tamulonis Peter A. Velde Eric D. Johnson Indianapolis, Indiana

FILED
Apr 14 2010, 2:08 pm

In the

of the supreme court, court of appeals and tax court

CLERK

Indiana Supreme Court
No. 49S00-0812-CV-00649 ROBERT E. CARTER, JR., DIRECTOR, DNR, AND INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellants (Defendants below), v. NUGENT SAND COMPANY, ALICE G. JULIUS, ANNETTA RAINES, MILDRED RAUTH, SANDRA M. GOINS, PAULA C. GOODWIN, ANNA J. GOODWIN, REA E. GOGAN, MELISSA F. HAFENBREIDEL, AND PAULA C. GOODWIN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHARLES N. GOODWIN, Appellees (Plaintiffs below).

Appeal from the Marion Superior Court, No. 49D02-0710-PL-42564 The Honorable Kenneth H. Johnson, Judge

On Direct Appeal

April 14, 2010

Shepard, Chief Justice.

Landowners and lessees obtained state approval a decade ago to dig a channel from the Ohio River to a nearby lake so that they could use the lake for a sand and gravel operation. They now seek judicial relief from conditions imposed within their 1999 permits. We conclude that that the present action should be dismissed for failure to exhaust administrative remedies.

Facts and Procedural History Alice G. Julius and others (collectively, "landowners") own 156.2 acres of land adjoining the Ohio River in Utica, Indiana. Nugent Sand Company is a Kentucky partnership engaged in, among other things, the business of salt, sand, and gravel stockpiling and transportation. In May 1999, Nugent Sand leased the 156.2 acres for use in its commercial barge operations. The acreage contained a 50-acre man-made body of water, standing about 200 feet inland from the Ohio River. (App. at 11, 48.)

Nugent sought and acquired a permit from the Department of the Army, Corps of Engineers, because the excavation would connect the lake to the Ohio River, a navigable waterway. It also obtained certificates of regulatory approval from the Indiana Department of Natural Resources because the construction would take place in a floodway and involved construction of an access channel. Among the conditions contained in DNRs granted certificates were provisions mandated by a section of the Indiana Code: "If a channel will: (A) connect to a navigable river or stream; and (B) create additional water areas that will be connected to the navigable river or stream; dedicate any water created to general public use." Ind. Code

Download Robert E. Carter, Jr., et al. v. Nugent Sand Co., et al..pdf

Indiana Law