Summary of a Recent
Judicial Development in
Animal Feeding Operations

Issuance of CAFO Permit Revisited Due to
Interested Environmental Law Judge

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Breitwiser v. Indiana Office of Environmental Adjudication, 775 N.E.2d 1175 (Ind. Ct. App. 2002), the Fourth District Court of Appeals for the State of Indiana reversed and remanded the trial court's judgment which denied neighbor appellants' motion to disqualify an administrative law judge for potential bias and lack of necessary qualifications.

Background

The appellants appealed the decision by the Indiana Department of Environmental Management (IDEM) which granted an animal feeding permit to the appellee farmer. Id. at 1176. The appellants lived in close proximity to the proposed confined animal feeding operation (CAFO) and sought administrative review of IDEM's decision to issue the CAFO permit. Id. Prior to the issuance of the Administrative Law Judge's (ALJ) decision, the appellants filed a motion for a change of ALJ because she had previously been employed by IDEM and had not been practicing environmental or administrative law for five years as required by Indiana Code Section 4-21.5-7-6(a)(2). Id. at 1177-78. The ALJ denied the appellant's motion and affirmed IDEM's decision. Id. at 1178. The appellants sought to vacate the orders of the ALJ; however, the Chief Environmental Law Judge (ELJ) refused to vacate, would not disqualify himself, and found the appellants to be in default for failure to file a written response to notice of proposed default order within seven days and pursuant to Indiana law. Id. The appellants sought judicial review of the ELJ's orders. Id. Ultimately, the appellants' complaint was dismissed because of lack of jurisdiction stemming from the default judgment. Id. The appellants appealed. Id.

Arguments

The appellees contended that the trial court lacked jurisdiction to consider any of the questions raised in the petition because the appellants were found to be in default in the proceedings before the ELJ. Id. Furthermore, such order would have precluded appellants from seeking judicial review. Id.

The appellants challenge the orders of the ELJ for refusing to disqualify himself, refusing to vacate orders previously entered by the ALJ, and entering a final order of default against appellants in their action challenging the granting of a CAFO permit by the Indiana Department of Environmental Management. Id.

Analysis and Holdings

The court agreed with the appellees that once an ALJ files notice of a proposed default order, the default order must be issued if the party against whom the notice was directed fails to respond within seven days. Id. at 1179-80. The appellants clearly failed to respond within the seven day window. Id. at 1180. However, the appellants filed a motion to disqualify the ELJ, which the Superior Court required the ELJ to rule upon prior to ruling on other pending motions. Id. Instead of heeding the requirement, the ELJ denied the motion to disqualify and found the appellants in default simultaneously. Id. Although the ELJ failed to follow the Superior Court's directive, the court referenced the general rule that when disqualification of a judge is discretionary and not automatic upon the filing of a motion, the mere filing of a disqualification motion does not immediately cause a judge to lose jurisdiction of the action, and the judge may continue to preside over the case while a disqualification motion is pending. Id. at 1180-81.

Prior to the ELJ's issuance of the notice of proposed order of default, the appellants challenged the ELJ's ability to serve as a neutral decision maker. Id. Even though issuance of an order of default is mandatory if a party does not respond to a proposed default order, the initial issuance of a proposed default order is discretionary. Id. at 1181-82. Because the appellants established that the ELJ should have disqualified himself prior to the issuance of the notice of default, he was without power to issue to the notice, and whether the appellants responded to it was irrelevant. Id. at 1182.

The case was decided on November 13, 2002.