Huffman v. Indiana Office of Environmental Adjudication

Attorney for Appellant Attorneys for Appellee

Rosemary Adams Huffman Eli Lilly and Company

Indianapolis, Indiana Daniel P. McInerny

George T. Patton, Jr.

Indianapolis, Indiana

Attorneys for Appellee

Indiana Department of

Environmental Management

Steve Carter

Attorney General of Indiana

David L. Steiner

Deputy Attorney General of

Indiana Indianapolis,

Indiana

____________________________________________________________________________

__

In the

Indiana Supreme Court

_________________________________

No. 49S02-0311-CV-578

Rosemary Adams Huffman,

Appellant (Petitioner below),

v.

Indiana Office of Environmental

Adjudication, Indiana Department

of Environmental Management,

and Eli Lilly and Company,

Appellees (Respondents below).

_________________________________

Appeal from the Marion Superior Court, No. 49F12-0201-MI-63

The Honorable Michael D. Keele, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0207-

CV-564

_________________________________

June 30, 2004

Sullivan, Justice.

The Indiana Office of Environmental Adjudication dismissed Rosemary

Huffman’s petition for administrative review of a decision of the Indiana

Department of Environmental Management renewing a pollution permit for Eli

Lilly and Company. We hold, as did the Court of Appeals, that whether a

person is entitled to seek administrative review depends upon whether the

person is “aggrieved or adversely affected” (as provided in statute) by the

administrative agency’s decision and that the rules for determining whether

the person has “standing” to file a lawsuit do not apply. We also conclude

that a portion of the Office of Environmental Adjudication’s determination

that Huffman was not entitled to seek administrative review was not

supported by substantial evidence.

Background

Eli Lilly and Company (Lilly) petitioned the Indiana Department of

Environmental Management (IDEM) for renewal of a National Pollutant

Discharge Elimination System (NPDES) permit for its Greenfield

Laboratories. The permit allows Lilly to discharge pollutants into

Indiana’s waters, specifically into the Leary Ditch. IDEM renewed the

permit, and Rosemary Adams Huffman sought to challenge the permit’s renewal

by filing a Petition for Administrative Review with the Indiana Office of

Environmental Adjudication (OEA).[1]

Huffman challenged the permit on several grounds: (1) Lilly did not

disclose its planned facility expansion and so IDEM was not able to

consider “the increased effluent that will result from this major

expansion”; (2) “Lilly did not disclose the scheduled Leary Ditch clean up

for which the taxpayers were recently assessed”; (3) IDEM accepted new

information and made a “substantial number of permit revisions” after “the

close of public comment . . . depriving the public of its right to review”;

and (4) “IDEM failed to address health risks to the residential use of

contiguous property from toxicology research and other Lilly activities

involving discharge of water.” (Appellant’s App. at 48.)

At a prehearing conference, Lilly claimed that Huffman lacked

standing to petition for administrative review. Chief Administrative Law

Judge Wayne E. Penrod ordered Huffman to provide evidence of her legal

interest in the property. Huffman filed an Amended Petition for

Administrative Review that asserted her “interest . . . is as a member of

the public and that her family has residential property, in which she has

had a legal interest for several years, contiguous to the Lilly property.”

(Id. at 41-42.) Lilly then filed a Motion to Dismiss Huffman’s Amended

Petition for lack of standing. In Huffman’s response to that motion, she

stated her legal interest more specifically – the property adjacent to

Lilly’s Greenfield Laboratories is owned by GreenWoods LLC; Huffman is the

sole owner of a corporation named DOS, Inc., that owns one unit of and is

the managing member of GreenWoods LLC.

Judge Penrod granted Lilly’s motion. He reasoned that the judicial

doctrine of standing applies to administrative proceedings and compliments

the statutory provision of “aggrieved or adversely affected,” the ground

relied upon by Huffman to seek administrative review. He then found that

Huffman had not demonstrated that she had standing to contest the permit.

The trial court affirmed Judge Penrod’s decision but the Court of Appeals

reversed, finding that “there is not substantial evidence to support the

dismissal of her petition.” Huffman v. IDEM, 788 N.E.2d 505, 506 (Ind. Ct.

App. 2003). IDEM and Lilly sought transfer, which we granted. 804 N.E.2d

757 (Ind. 2003) (table). We now reverse the trial court.

I

The Administrative Orders and Procedures Act (AOPA) limits judicial

review of agency action. Agency action subject to AOPA will be reversed

only if the court “determines that a person seeking judicial relief has

been prejudiced by an agency action that is: (1) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; (2) contrary

to 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.” Ind. Code § 4-21.5-5-14(d) (1998).

We give deference to an administrative agency’s findings of fact, if

supported by substantial evidence, but review questions of law de novo.

LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000); Lutheran Hosp.

of Ft. Wayne v. State Dep’t of Public Welfare, 571 N.E.2d 542, 544 (Ind.

1991). The dispute in this case – whether Huffman is a proper party to

seek administrative review – involves both a question of law and a

determination of whether the OEA’s decision was supported by substantial

evidence.

Both the OEA and the trial court held that the “judicial doctrine of

standing” applies to administrative proceedings and found that Huffman had

no standing. The Court of Appeals, reasoning that the “judicial doctrine

of standing applies to lawsuits filed in a trial court” and not to

administrative proceedings, looked to the language of AOPA to determine who

could seek administrative review. Huffman, 788 N.E.2d at 508. On petition

to our Court, Lilly and IDEM urge the construction put forth by the OEA and

the trial court. That is, they argue that a person must have the same

“standing” to invoke administrative review under AOPA as the person would

need to file a lawsuit in a trial court – and that because in their view

Huffman would not have had such standing, she cannot seek administrative

review. Huffman, for her part, contends that she would have had standing

to file a lawsuit and so is entitled to administrative review.

Our court has recently had several opportunities to discuss what the

OEA and lower courts here refer to as the “judicial doctrine of standing.”

This doctrine dictates “whether the complaining party [in a lawsuit] is the

proper person to invoke the court's power.” State ex rel. Cittadine v.

Ind. Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003); see also City of

Gary v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003); Embry v.

O'Bannon, 798 N.E.2d 157 (Ind. 2003). However, whether Huffman is the

proper person to file a lawsuit is not at issue in this case. Rather, the

question is whether Huffman is the proper person to invoke the OEA’s power

of administrative review of IDEM’s permit renewal decision. Subject to

constitutional constraints, of which none are asserted here, the

Legislature may dictate access to administrative review on terms the same

as or more or less generous than access to file a lawsuit. We therefore

find imposition of the “judicial doctrine of standing” inappropriate here

because AOPA itself identifies who may pursue an administrative proceeding.

AOPA provides that to qualify for administrative review of an agency

order, a person must:

(1) States facts demonstrating that:

(A) the petitioner is a person to whom the order is

specifically directed;

(B) the petitioner is aggrieved or adversely affected by

the order; or

(C) the petitioner is entitled to review under any law.

Ind. Code § 4-21.5-3-7(a)(1) (1998). Huffman sought administrative review

under the provision for persons who are “aggrieved or adversely affected by

the order.”

The statute does not define “aggrieved or adversely affected,” but

those words have a well-developed meaning. Black’s Law Dictionary 73, 1154

(8th ed. 2004), defines “aggrieved” as “having legal rights that are

adversely affected,” and “aggrieved party” as “a party whose personal,

pecuniary, or property rights have been adversely affected by another

person’s actions or by a court’s decree or judgment.” In another context,

we have defined “aggrieved” as:

[A] substantial grievance, a denial of some personal or property

right or the imposition upon a party of a burden or obligation.

. . . The appellant must have a legal interest which will be

enlarged or diminished by the result of the appeal.

McFarland v. Pierce, 151 Ind. 546, 547-48, 45 N.E.2d 706, 706-07 (1897)

(construing statute allowing appeal to the Indiana Supreme Court), quoted

in Stout v. Mercer, 160 Ind. App. 454, 460, 312 N.E.2d 515, 518 (1974)

(citations and quotations omitted); accord Bagnall v. Town of Beverly

Shores, 726 N.E.2d 782, 786 (Ind. 2000). Essentially, to be “aggrieved or

adversely affected,” a person must have suffered or be likely to suffer in

the immediate future harm to a legal interest, be it a pecuniary, property,

or personal interest.

The view that the rules of standing to file a lawsuit apply to

administrative proceedings originates from a case of this Court, Insurance

Commissioners of Indiana v. Mutual Medical Insurance, Inc., 251 Ind. 296,

241 N.E.2d 56 (1968),[2] upon which IDEM and Lilly rely. At the time,

AOPA’s predecessor statute, the Administrative Adjudication Act (AAA), was

in effect, and allowed “all interested persons or parties” the ability to

seek administrative review of agency action. Ind. Code § 4-22-1-4

(repealed effective July 1, 1987).

In Mutual Medical, the Indiana State Podiatrists’ Association filed a

complaint against Mutual Medical Insurance Company with the Insurance

Commissioner, alleging that some of Mutual Medical’s insurance policies

illegally excluded certain services from compensation when those services

were performed by podiatrists. The Commissioner ruled for the Podiatrists’

Association but the trial court reversed and the Podiatrists’ Association

appealed. At the trial level and on appeal, Mutual Medical argued that the

Podiatrists’ Association did not have standing to participate in the legal

action because it had “no justiciable interest in the controversy.” Mutual

Medical, 251 Ind. at 299, 241 N.E.2d at 58.

This Court addressed two questions. First, whether an administrative

agency could “entertain a hearing on a complaint brought by a complainant

who has no justiciable interest in the alleged unlawful action charged.”

Id. We answered that question in the affirmative:

The Insurance Law and the Administrative Adjudication Act do not

contemplate the proposition that a complaint must be filed by a

party with legal standing to invoke the jurisdiction of the

Insurance Commissioner to review the legality of insurance

policy provisions. The personal merit, standing or legal

interests and motives of a private complainant under these

statutory provisions, are immaterial to the jurisdiction of the

Insurance Commissioner, if the practice complained of is one in

which the public generally has an interest.

Id. at 300, 241 N.E.2d at 59 (citations omitted) (emphasis added).

The Court then addressed a second question: “May a complainant, who

has no legal standing to sue, become a party to the administrative

proceeding with legal standing on appellate review.” Id. at 299, 241

N.E.2d at 58. We answered in the negative, because of two barriers.

First, the AAA had a provision limiting judicial review of “any order or

determination made by any such agency” to “[a]ny party or person

aggrieved.” Ind. Code § 4-22-1-14 (repealed effective July 1, 1987).

Second, the judicial doctrine of standing required that “in order to invoke

a court’s jurisdiction, a plaintiff must demonstrate a personal stake in

the outcome of the lawsuit and must show that he or she has sustained or

was in immediate danger of sustaining, some direct injury as a result of

the conduct at issue.” Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985).

But this situation created a problem. If a person was entitled to an

administrative hearing but not judicial review, it was possible that not

all sides would be represented on review and that review would then be

ineffective and incomplete. Mutual Medical, 251 Ind. at 301, 241 N.E.2d at

59-60. The Court tried to remedy this problem by holding that Indiana’s

“rules of standing are applicable to administrative proceedings”; if a

person did not have standing, the person could not become a party to the

administrative hearing. Id. Under the Court’s answer to the first

question, however, those without standing could still get a hearing if the

practice complained of was one in which the public generally had an

interest. Subsequent Court of Appeals’ cases have glossed over this nuance

and have read Mutual Medical for the proposition that the doctrine of

standing applies to administrative proceedings under the AAA. City of

Hammond v. Red Top Trucking Co., 409 N.E.2d 655, 657 (Ind. Ct. App. 1980);

Dep’t of Fin. Insts. v. Wayne Bank & Trust Co., 178 Ind. App. 265, 269-72,

381 N.E.2d 1100, 1103-05 (1978); Ind. Alcoholic Beverage Comm’n v. McShane,

170 Ind. App. 586, 596, 354 N.E.2d 259, 266 (1976); Bowen v. Metro. Bd. of

Zoning Appeals, 161 Ind. App. 522, 527, 317 N.E.2d 193, 197 (1974).[3]

Mutual Medical was decided under the AAA, not AOPA. Unlike its

predecessor, the AAA, which allowed “all interested persons or parties” the

ability to seek administrative review, AOPA reserves administrative review

for a more narrow class.[4] As a consequence, under AOPA, we do not

believe a situation will arise in which a party to administrative review

would not have standing to seek judicial review in court. Said

differently, the reach of the judicial standing doctrine certainly includes

persons aggrieved or adversely affected by administrative agency action

given that the definition of “aggrieved or adversely affected” requires

harm to a pecuniary, property, or personal interest. IDEM and Lilly warn

that if the definition of “aggrieved or adversely affected” “means

something different than the recognized standing requirement . . . . [this]

could open administrative tribunals to persons who have no real, personal

stake in the outcome of a case, but merely believe themselves to be

aggrieved.” (Pet. to Transfer at 8.) This argument ignores the fact that

the concept of “aggrieved” is more than a feeling of concern or

disagreement with a policy; rather, it is a personalized harm.

In any event, AOPA defines who can get administrative review. When a

statute is clear, we do not impose other constructions upon it. Ind. Bell

Tel. Co. v. Ind. Util. Regulatory Comm’n, 715 N.E.2d 351, 354 (Ind. 1999)

(citing Ind. Dep’t of State Revenue v. Horizon Bancorp, 644 N.E.2d 870, 872

(Ind. 1994)). IDEM and Lilly assert that the legislative intent of the

statute was to bring it “into alignment with controlling Indiana case law”

on standing. (Pet. to Transfer at 7.) While the change in the language

from “all interested persons or parties” to “aggrieved or adversely

affected” suggests an intention to narrow the class of persons who can seek

administrative review, there is no clear evidence of a legislative intent

to make that class and the class of persons who have standing one in the

same. If that were so, one would think the Legislature would have used

phrases like “personal stake” or “direct injury” that were prevalent at the

time in the case law of standing. It did not.

Huffman takes the position that the common law doctrine of “public

standing” would provide her standing to invoke judicial review in a trial

court. “Public standing” allows persons with no personal stake in a matter

to bring suit when certain public rights are at issue.[5] Huffman reasons

that if public standing is allowed at the trial court level, then it is

allowed at the administrative proceeding level, where the purpose “is to

develop public policy where public rights are at interest.” (Br. in Resp.

to Pet. to Transfer at 5.)

Just as the judicial doctrine of standing does not apply to

administrative proceedings, its public standing component is also

inapplicable. The language of AOPA does not allow for administrative

review based on a generalized concern as a member of the public. The

statute says “aggrieved or adversely affected” and this contemplates some

sort of personalized harm. To repeat, this is a different standard than

that under the previous AAA statute that allowed “all interested persons or

parties” the ability to seek administrative review and arguably allowed for

some type of public standing. Moreover, in many instances, the public is

allowed time to comment on administrative agency action before it occurs or

becomes final. Indeed, Huffman stated that she “actively expressed her

concerns during the public comment phase of IDEM’s decision-making.”

(Appellant’s App. at 33.) We therefore decline to find such an exception

in AOPA.

We hold that the statute, and only the statute, defines the class of

persons who can seek administrative review of agency action.

II

With this understanding in mind, we now turn to whether the OEA

properly found that Huffman is not aggrieved or adversely affected.[6] We

conclude that some of the OEA’s findings are not supported by substantial

evidence. This conclusion is largely based on the procedural treatment

given Lilly’s Motion to Dismiss.

A

Lilly brought its Motion to Dismiss under Indiana Trial Rule 12(B)(1)

and 315 Ind. Admin. Code 1 (2004). Under 315 Ind. Admin. Code 1-3-1(10),

administrative law judges may apply the rules of trial procedure to

administrative proceedings. In this instance, the administrative law judge

did not make clear the standard that he used in ruling on the motion. He

quoted the language of the statute, declaring that Huffman “stated no facts

demonstrating that she is personally aggrieved or adversely affected by the

Permit issuance.” (Appellant’s App. at 26.) Under that standard, the

judge examines the face of the petition to see whether any facts stated

indicate that the petitioner is aggrieved or adversely affected by the

administrative agency’s action. Here, however, the judge looked beyond the

face of the petition and considered additional evidence provided by both

sides in ruling on the motion to dismiss. Specifically, the judge

considered from the motion papers evidence of Huffman’s ownership interest

in the property and evidence of the pollutant discharge point into the

Leary Ditch. The trial court’s findings of fact and conclusions of law

rely on the same information.

On appeal, the court noted that although Lilly filed its motion under

12(B)(1), lack of subject matter jurisdiction, motions to dismiss for lack

of standing are properly brought under 12(B)(6), for failure to state a

claim. Huffman, 788 N.E.2d at 509-10. The court proceeded to evaluate

Lilly’s motion as a 12(B)(6) motion and found that there was not

substantial evidence supporting the OEA’s decision to dismiss Huffman’s

petition for review. Id. at 510-11.

If the administrative law judge intended to apply Indiana’s trial

rules, as Lilly requested by invoking Trial Rule 12(B)(1), the motion

should have been treated as a 12(B)(6) motion. The question here is

whether Huffman is a proper person to challenge Lilly’s permit and not

whether IDEM has subject-matter jurisdiction over challenges to the permits

it issues. IDEM always has jurisdiction over such challenges, and that

does not change depending upon the petitioner. The standard for a 12(B)(6)

motion is that articulated by the Court of Appeals:

In reviewing a Rule 12(B)(6) motion, a court is required to take

as true all allegations upon the face of the complaint and may

only dismiss if the plaintiff would not be entitled to recover

under any set of facts admissible under the allegations of the

complaint. This Court views the pleadings in a light most

favorable to the nonmoving party, and we draw every reasonable

inference in favor of that party.

Huffman, 788 N.E.2d at 510 (citations omitted); see also State Civil Rights

Comm’n v. County Line Park, Inc., 738 N.E.2d 1044, 1049 (Ind. 2000); Lawson

v. First Union Mortgage Co., 786 N.E.2d 279, 281 (Ind. Ct. App. 2003).

Trial Rule 12(B) also states that if, on a 12(B)(6) motion, “matters

outside the pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed of as

provided in Rule 56. In such case, all parties shall be given reasonable

opportunity to present all material made pertinent to such a motion by Rule

56.” The standard of Trial Rule 56 is that “[t]he judgment sought shall be

rendered forthwith if the designated evidentiary matter shows that there is

no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).

The administrative law judge considered the additional information

provided in the motion papers, but never gave the parties an opportunity to

provide additional evidence or to develop the arguments more fully, such as

through a hearing. The consequence is that some of the findings are not

supported by substantial evidence.

B

The OEA appeared to base its decision on three considerations.

First, that Huffman brought the petition on her own behalf and not on

behalf of the corporation that owns the property. Second, that she did not

state facts showing how she was aggrieved or adversely affected by the

issuance of the permit. And third, that the point where Lilly discharged

pollutants was approximately 2800 feet west and downstream from the nearest

point of the property.[7]

The OEA’s finding on this first issue is supported by substantial

evidence. A general rule of corporate law is that shareholders cannot

bring actions in their “own name to redress an injury to the corporation.”

Knauf Fiber Glass, GMBh v. Stein, 622 N.E.2d 163, 165 (Ind. 1993); Speedway

Realty Co. v. Grasshoff Realty Corp., 248 Ind. 6, 9 (Ind. 1966) (“It is

fundamental that every action must be prosecuted in the name of the real

party in interest.” (quotation and citation omitted)). The rationale for

this rule is twofold. First, if a shareholder sues for money damages for

injury to the corporation, there is a concern that the corporation itself

could still sue and inflict double punishment on the defendant. Meanwhile,

the shareholder has received money that is really owed to the corporation.

Second, there is a concern that the real party’s interests will not be

taken into account if that party is not represented in the action. The

shareholder and the corporation may have different interests and goals in

litigation, and the shareholder could act in ways that harm the

corporation, even if unintentionally.

Huffman is seeking to have the permit invalidated and is not seeking

damages, so the first concern is not present. But the second concern is.

Huffman stated in her response to the motion to dismiss that she owns a

corporation that owns one unit of and is the managing member of the

corporation that owns the property. Huffman argues that “[a] ‘property’

right is not a requirement.” (Br. in Resp. to Pet. to Transfer at 12.)

While that is true, it ignores instances where someone else has a property

right that is affected. In those situations, the holder of the property

right is the person who should bring claims based on harm to the property.

GreenWoods LLC, as the property owner and real party in interest, is

therefore the proper party to seek administrative review for harm to the

property. This issue is sufficiently clear from the information provided

by the parties that it needs no further development.

The OEA’s determinations on the second and third issues, however, are

not supported by substantial evidence. The OEA found that Huffman stated

no facts demonstrating how she was aggrieved or adversely affected by

Lilly’s permit. However, one of the bases for Huffman’s challenge to

Lilly’s permits was that “IDEM failed to address health risks to the

residential use of contiguous property from toxicology research and other

Lilly activities involving discharge of water.” (Appellant’s App. at 48.)

In Huffman’s response to the motion to dismiss, she stated that she “is

extremely concerned” by the permit “because she has in fact managed this

property since 1987 and that responsibility requires that she and her

agents be on the property with frequency.” (Id. at 33.) Under the

12(B)(6) standard, a motion to dismiss is inappropriate if a party could

recover under any set of facts admissible under the allegations of the

complaint. Particularly because the OEA never gave Huffman an opportunity

to provide additional evidence or to develop the argument more fully, it

was impossible for the OEA to tell what Huffman’s personal health claim was

and whether it had any merit. Dismissing this claim was therefore

premature.

The OEA also seemed to have based its decision in part on a statement

in Lilly’s motion to dismiss, which it quoted in its order:

Based upon calculations performed by Lilly, the Lilly discharge

point in Leary Ditch is approximately 2800 feet west and

downstream from the nearest point on the Adams Property, and

from the discharge point Leary Ditch continues to flow

downstream away from the Adams Property. The plain fact is that

Lilly’s permitted discharge to Leary Ditch has no impact,

adverse or otherwise, upon the Petitioner or the Adams Property.

(Appellant’s App. at 27.) IDEM and Lilly try to bolster this position by

pointing out that Huffman “did not dispute [that] the discharge did not

even touch the property in which she owns one unit of stock.” (Pet. to

Transfer at 9.) Huffman responds that she was not required to refute such

“an unsworn allegation.” (Br. in Resp. to Pet. to Transfer at 11.)

Motions brought under Trial Rule 12(B)(6) and Trial Rule 56 do not

need to be sworn or verified. Trial Rule 11 requires that an attorney or

unrepresented party sign every pleading or motion, thereby certifying “that

he has read the pleadings; that to the best of his knowledge, information,

and belief, there is good ground to support it; and that it is not

interposed for delay.” Ind. Trial Rule 11(A). Lilly’s attorney signed the

Motion to Dismiss. A party may make a summary judgment motion “with or

without supporting affidavits,” T.R. 56(A), and affidavits are defined as

“voluntary declaration[s] of facts written down and sworn to by the

declarant before an officer authorized to administer oaths.” Black’s Law

Dictionary 62 (8th ed. 2004). Lilly, however, submitted no affidavits with

its Motion to Dismiss. Therefore, the fact that the allegation regarding

the discharge point is “unsworn” is not a valid excuse for failing to

respond to it. Nevertheless, that one statement from Lilly is an

insufficient basis on which to dismiss Huffman’s petition. Even if what

Lilly and IDEM said was true about the position of the discharge point,

that alone does not prove that there is no harm to the property or to

Huffman from the discharge. This is precisely the type of fact that needs

further development before it can be resolved.

We conclude for these reasons that the OEA’s dismissal of Huffman’s

Petition for Administrative Review was not supported by substantial

evidence.

Conclusion

We affirm the OEA’s dismissal of Huffman’s claim as it relates to

potential property damage and reverse as it relates to health problems. We

remand to the trial court with instructions to remand to the OEA for

further proceedings consistent with this opinion.

Shepard, C.J., and Boehm and Rucker, JJ., concur. Dickson, J., concurs in

result without opinion.

-----------------------

[1] The OEA was established in 1995 to review decisions made by the

commissioner of IDEM. Ind. Code § 4-21.5-7-3 (1998 & Supp. 2003), first

enacted by P.L. 41-1995, § 2; see also 315 Ind. Admin. Code 1-1-1 (2004);

315 Ind. Admin. Code 1-3-2 (2004). The OEA “hears all administrative

disputes arising from IDEM actions, including appeals of enforcement

actions or IDEM-issued permits.” Sharon A. Hilmes, OEA Adopts Final Rules

of Procedure, 8 Ind. Envtl. Compliance Update (July 1998). Prior to the

enactment of P.L. 41-1995, § 2, such administrative review was conducted

within IDEM itself.

[2] Both the OEA and trial court cite Indiana Alcoholic Beverage

Commission v. McShane, 170 Ind. App. 586, 596, 354 N.E.2d 259, 266 (1976),

but that case relied on Mutual Medical.

[3] Only one case has appreciated the nuance of Mutual Medical. In

Hazelett v. Blue Cross & Blue Shield of Indiana, the Court of Appeals

stated:

Our Supreme Court held that the Podiatrists’ Association did not

have legal standing and therefore could not be a party either to

the administrative proceedings or to the judicial review of

those proceedings. However, the court went on to state that the

standing of the Podiatrists’ Association was not required to put

the issue of the policy provision before the Commissioner.

400 N.E.2d 1134, 1136 (Ind. Ct. App. 1980).

[4] The legislature is always free to amend AOPA, and may enlarge the

class of persons who may seek administrative review.

[5] “Indiana cases recognize certain situations in which public rather

than private rights are at issue and hold that the usual standards for

establishing standing need not be met. This Court held in those cases that

when a case involves enforcement of a public rather than a private right

the plaintiff need not have a special interest in the matter nor be a

public official.” Cittadine, 790 N.E.2d at 980 (quoting Schloss v. City of

Indianapolis, 553 N.E.2d 1204, 1206 n.3 (Ind. 1990) (quoting in turn

Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985))).

[6] On Petition to Transfer, IDEM and Lilly argue that Huffman is

judicially estopped from asserting she has standing when she conceded in

her Amended Petition that she “did not actually own property next to

Lilly’s property and that she merely owned stock in a company that had an

interest in another company that had property adjacent to Lilly’s

Greenfield property.” (Pet. to Transfer at 10.) This is a

mischaracterization of Huffman’s argument. She has consistently argued

that she is aggrieved or adversely affected, and so the doctrine of

judicial estoppel simply has no relevance here.

[7] It was also noted that Huffman resides in Indianapolis, but that

is irrelevant if Huffman otherwise has a legal interest that is harmed by

Lilly’s permit.