Michael Patrick Knott and Andrew John Knott v. State of Indiana

FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

RUDOLPH W. SAVICH GREGORY F. ZOELLER
Bloomington, Indiana Attorney General of Indiana

DAVID L. STEINER
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 13 2012, 9:23 am

IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court

MICHAEL PATRICK KNOTT and )
ANDREW JOHN KNOTT, )
)
Appellants-Defendants, )
)
vs. ) No. 28A04-1203-PL-122
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable Erik C. Allen, Judge
Cause No. 28C01-1109-PL-123

September 13, 2012

OPINION - FOR PUBLICATION

KIRSCH, Judge
 The State of Indiana filed a complaint, in eminent domain proceedings, to appropriate

a parcel of land owned by Michael Patrick Knott and Andrew John Knott (together, “the

Knotts”) for the purpose of constructing a portion of Interstate 69 (“I-69”) through Greene

County, Indiana. The Knotts filed objections to the complaint, and after striking the Knotts’

objections, the trial court issued an “Order of Appropriation and Appointment of Appraisers”

(“Order of Appropriation”). Appellant’s App. at 6. The Knotts raise the following issue on

appeal, which we restate as whether the Order of Appropriation is capricious, fraudulent, or

illegal because it fails to comply with federal environmental laws and regulations.

We affirm.

FACTS AND PROCEDURAL HISTORY

The Knotts own 45 acres of real estate located in Section 16, Township 6 North,

Range 4 West, Greene County, Indiana. Appellant’s Br. at 2. On September 14, 2011, the

State, on behalf of the Indiana Department of Transportation (“INDOT”), filed a Complaint

for Appropriation of Real Estate (“Complaint”) to acquire 11.236 acres of the Knotts’ 45

acres of real estate for purposes of constructing a portion of I-69, referred to as a “limited

access facility” (“I-69 Project”). Id. at 13, 18.

In Paragraphs I and II of its Complaint, the State explained that it was improving “I-69

under Project No. 0500446,” and needed to “appropriate fee simple title and access rights to

portions of the real estate owned by [the Knotts],” known as INDOT Parcel 17, Code 5531

(“Parcel 17”). Appellant’s App. at 13. In Paragraph VI, the State averred that it had made an

offer to the Knotts to purchase the property in question for $27,200, but that the parties had

2
not been able to agree on a purchase price. In Paragraph VII, the State described the subject

property. The Complaint requested the appropriation of the described property and the

appointment of disinterested appraisers to prepare a Report of Appraisers concerning the

value of the property interests subject to eminent domain.

The Knotts filed “Objections to Proceedings.” Id. at 32. Under Objection I, the

Knotts stated that “[t]he proposed highway improvement project as described in paragraph

VII of [the Complaint] does not cross the [Knotts’] real estate and is not necessary for the

highway improvement project as described.” Id. at 32. The State, noting a scrivener’s error,

filed a motion to substitute existing Paragraph VII with the proper description of the land; a

description that included the Knotts’ Parcel 17. The trial court granted the State’s motion on

December 19, 2011. The Knotts subsequently raised no objection to the description of the

affected property either at trial or on appeal.

The Knotts’ additional objections to the proceedings included the following: (1)

INDOT violated the National Environmental Policy Act (“NEPA”) by failing to prepare a

Supplemental Tier 1 Environmental Impact Statement (“EIS”) based on significant

information bearing on the environmental and economic impacts of its proposed I-69 Project,

Appellant’s App. at 34; (2) INDOT and the Federal Highway Administration (“FHWA”)

violated NEPA by failing to prepare a “Supplemental Tier 2 EIS for Section 4 based on

significant new information bearing on the environmental impacts of agency action,” id. at

46; (3) INDOT and FHWA violated NEPA by preparing a “Tier 2 EIS for Section 4 in bad

faith, arbitrarily circumventing involvement of owners of historic and archaeological

3
properties, engaging in theft or conversion of artifacts, concealing material information from

the public regarding air pollution[,] public health impacts[,] and violations of law, and

ignoring documented unacceptable adverse impacts,” id. at 49; (4) “the I-69 . . . [P]roject is

in violation of Section 4(f) of the Transportation Act,” id. at 52; and (5) INDOT’s approval

of I-69 section 4 and issuance of a Clean Air Act (“CAA”) Conformity Determination violate

the CAA, id. at 55.

The State responded with a motion to strike the Knotts’ objections, contending that,

except for the scrivener’s error in Paragraph VII, which had been remedied, the objections

were legally deficient because their objections did not address the clear authority of the State

to acquire Parcel 17 for the appropriate purpose of constructing the I-69 Project. On

February 20, 2012, the trial court entered an order striking the Knotts’ objections, and

thereafter, entered the Order of Appropriation. The Knotts now appeal.

DISCUSSION AND DECISION

The State has inherent authority to take private property for public use. Sagarin v.

City of Bloomington, 932 N.E.2d 739, 744 (Ind. Ct. App. 2010), trans. denied (2011), cert.

denied, 132 S. Ct. 117 (2011) (citing Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731

(Ind. 2010)). Eminent domain proceedings for seizing private property are powerful

instruments of government. Id. (citing Derloshon v. City of Fort Wayne ex rel. Dep’t of

Redevelopment, 250 Ind. 163, 166, 234 N.E.2d 269, 271 (1968)). As long as the

governmental entity intends to use the land for a public purpose that is constitutional, there

are few defenses to prevent a taking. Id. Such powers and rights, however, are not

4
unlimited. Derloshon, 250 Ind. at 166, 234 N.E.2d at 271.

In eminent domain proceedings the focus of our judicial review is narrow. See

Berman v. Parker, 348 U.S. 26, 32 (1954). “Significantly the courts are not to infringe upon

the administrative act of determining the necessity or reasonableness of the decision to

appropriate and take land.” Indianapolis Power & Light Co. v. Barnard, 175 Ind. App. 308,

312, 371 N.E.2d 408, 411 (1978). Like the trial court, we must restrict our review to whether

the condemnation proceedings were legal, whether the condemning authority had authority to

condemn the property in question, and whether the property was to be taken for a public

purpose. City of Evansville ex rel. Dep’t of Redevelopment v. Reising, 547 N.E.2d 1106,

1111 (Ind. Ct. App. 1989); State ex rel. Ind. Dep’t of Conservation v. Barber, 246 Ind. 30,

36, 200 N.E.2d 638, 640 (1964). See also Ind. Code § 32-24-1-8. Additionally, we have the

power to question whether the condemnation was fraudulent, capricious, or illegal. Reising,

547 N.E.2d at 1111; Barber, 246 Ind. at 36, 200 N.E.2d at 640-41. In addressing allegations

of fraud or bad faith, however, we are limited to considering only whether there was fraud,

bad faith, capriciousness, or illegality as to the necessity of the taking, i.e., whether “the

property taken will not be used for a public purpose, or the proceeding is a subterfuge to

convey the property to a private use.” Cemetery Co. v. Warren Sch. Twp. of Marion Cty.,

236 Ind. 171, 188, 139 N.E.2d 538, 546 (Ind. 1957).

The Knotts raised a valid objection to the eminent domain proceedings on the basis

that their property was not included in Paragraph VII, which described the property subject to

appropriation. This deficiency, however, was remedied when, without objection, the trial

5
court allowed the State to amend Paragraph VII to include the description of Parcel 17. Once

remedied, this was no longer a valid objection.

The Knotts contend that their remaining objections should not have been stricken

because they alleged that the State and INDOT acted illegally and in bad faith because the I-

69 Project is proceeding in violation of certain federal laws. The Knotts assert that the

State’s failure to file a supplemental EIS was a violation of NEPA, and thus posed a valid

objection to the condemnation proceeding. NEPA requires all federal agencies to prepare an

EIS addressing the impact on the quality of the human environment prior to embarking on

any major federal action. 42 U.S.C. § 4332(2)(C) (emphasis added). When new information

affects a major federal action, NEPA also requires a federal agency to file a supplemental

EIS. Relying on this NEPA requirement, the Knotts assert that, based on the State’s

relationship with the FHWA, the I-69 Project is “a major federal action” under NEPA, and

therefore the State’s failure to prepare a supplemental EIS is fatal to the State’s attempt to

condemn Parcel 17. The Knotts also object to the condemnation on the basis that the State

failed to comply with other federal laws in connection with this major federal action,

including the CAA and Section 4(f) of the Transportation Act. We find the State’s failure to

comply with these federal statutes has no impact on the State’s authority to proceed with the

condemnation at issue.

While the Knotts object to the acquisition of their property on the grounds that the

State failed to comply with NEPA, CAA, and the Transportation Act, Indiana’s eminent

domain laws do not require the State to comply with these federal statutes prior to

6
appropriating private property for a public purpose. See generally, Ind. Code Art. 32-24.

“The issues in the objections stage of an eminent domain case are narrow and relate only to

the questions related to the proposed acquisition of real estate.” See State ex rel. Bd. of

Aviation Comm’rs of City of Warsaw v. Kosciusko Cnty. Superior Ct., 430 N.E.2d 754, 755

(Ind. 1982).

In J.M. Foster Co. v. Northern Indiana Public Service Co., 164 Ind. App. 72, 326

N.E.2d 584 (Ind. Ct. App. 1975), our court explained the rationale behind this conclusion.

Northern Indiana Public Service Co. (“NIPSCO”), a public utility, filed a complaint to

condemn a right of way over real estate owned by Foster. 164 Ind. App. at 73, 326 N.E.2d at

585. Foster filed objections to the taking, and the trial court entered an order overruling

Foster’s objections. On appeal, Foster maintained that NIPSCO had not negotiated in good

faith. Specifically, Foster objected to the proposed condemnation on the basis that NIPSCO

had failed to file an environmental impact report as required by an Indiana environmental

statute. Id. at 80, 326 N.E.2d at 589. In determining that Foster’s objection was improper,

this court reasoned:

The fulfillment of any duty which [the environmental statute] might arguably
impose upon a public utility exercising the power of eminent domain cannot be
regarded as a prerequisite to the filing of a complaint for condemnation where
the order sought thereby could do no more than effect an eventual shift in title.
Although action by the Environmental Board pursuant to the filing of an
impact report might conceivably force an alteration of plans, such a
consideration is, under existing authority, foreign to proceedings for
condemnation and more properly the subject of an . . . environmental suit[].

Id. at 80, 326 N.E.2d at 589. Stated differently, this court determined that Foster’s objection

to the condemnation on the basis that the State failed to comply with environmental laws was

7
improper because the objection did not address the issue of the acquisition of property, but

instead addressed issues related to the possible environmental impact of the project as a

whole.

In Chambers v. Public Service Co. of Indiana, Inc., 265 Ind. 336, 355 N.E.2d 781

(1976), the court reached a similar conclusion when faced with a question of whether

government approval must be obtained prior to the acquisition of private property through

eminent domain. In Chambers, the parties agreed that Public Service Co. of Indiana (“PSI”),

a public utility, had to obtain government approval before it could build a nuclear generating

facility on the land PSI sought to acquire for that purpose. Notwithstanding this agreement,

our court, noting that “prior approval by a governmental authority is not necessary to land

acquisition by eminent domain,” held that it was “not necessary for PSI to have obtained the

necessary permits from the federal agencies prior to acquiring the land.” 265 Ind. at 342, 355

N.E.2d at 785.

Finally, in Indianapolis Power & Light Co. v. Barnard, the public utility, IPALCO,

sought to condemn a right of way across the Barnards’ land for the purpose of placing

electrical transmission lines on the land. 175 Ind. App. at 309, 371 N.E.2d at 409. The

Barnards filed their objections asserting that the erection of transmission lines would violate

the so-called High Structures Act “if a permit [was] not obtained from the State Aeronautics

Commission pursuant to such law.” Id. at 310, 371 N.E.2d at 410. Finding that IPALCO had

yet to obtain the required permit, the trial court sustained the Barnards’ objections. On

appeal, our court first found that IPALCO had the statutory authority to condemn the

8
property in question, and then addressed the issue of whether intervening contingencies

concerning restrictions on the use of the land sought to be condemned were barriers to the

right to exercise the power of eminent domain. The Barnards maintained “that until IPALCO

receives the permit of approval and has complied with all of the regulations pertaining to the

ultimate use for which the land is sought[,] then a contingency exists which precludes a

present necessity for the condemnation.” Id. at 314, 371 N.E.2d at 412. Our court disagreed.

Citing to Chambers, this court held that “IPALCO did not need a permit from the

Aeronautics Commission . . . before it could exercise its power of eminent domain.” Id. at

315, 371 N.E.2d at 413. Our court determined that since the necessity for a public use was

clearly demonstrated, IPALCO’s authority for the condemnation was properly exercised. Id.

at 317, 371 N.E.2d at 413.

Indiana Code section 32-24-1-5.8 recognizes INDOT’s authority “to acquire a parcel

of land or property right for the construction, reconstruction, improvement, maintenance or

repair of a: (1) state highway; or (b) toll road project or toll bridge project. Furthermore,

INDOT or a “highway authority may acquire private or public property and property rights

for limited access facilities and service roads, . . . by gift, devise, purchase, or condemnation

for the laying out, widening, or improvement of highways and streets within their respective

jurisdictions.” Ind. Code § 8-23-8-3. These statutes vest discretion in INDOT such that if, in

its judgment, the real estate sought to be condemned is necessary for the use of the highways

and streets, INDOT has the power to appropriate and condemn such real estate. INDOT’s

judgment as to necessity of appropriating this land for the I-69 Project cannot be questioned

9
or superseded by the judgment of this court. See Barnard, 175 Ind. App. at 312, 371 N.E.2d

at 411 (courts are not to infringe upon administrative act of determining necessity or

reasonableness of decision to appropriate and take land); Cemetery Co., 236 Ind. at 188, 139

N.E.2d at 546 (same).

In the instant case, the federal statutes upon which the Knotts’ objections depend

(NEPA, CAA and Section 4(f) of the Transportation Act) do not concern the acquisition of

property, but instead are related to collateral issues concerning the I-69 Project. The I-69

Project is not under review in this eminent domain action.1 While we recognize that these

federal statutes provide important environmental protections and may require the State or

INDOT to take certain steps prior to the commencement of construction of the I-69 Project,

we hold that the federal statutes at issue have no bearing on the condemnation proceeding

itself. The trial court did not err in striking the Knotts’ objections or in entering the Order of

Appropriation. While we affirm the State’s authority to take the Knotts’ property, we regret

the hardship that this condemnation may cause the Knotts, notwithstanding the payment of

just compensation.

Affirmed.

BAKER, J., and MAY, J., concur.

1
We note that the I-69 Project is in fact under review in a number of cases, some of which are:
Hoosier Environmental. Council v. U.S. Army Corps of Engineers, No. 1:11-CV-0202-LJM-DML, 2012 WL
3028014 (S.D. Ind. July 24, 2012); Citizens for Appropriate Rural Roads, Inc. v. LaHood, No. 1:11-CV-1031-
SEB-DML, 2012 WL 442747 (S.D. Ind. Feb. 10, 2012); Citizens for Appropriate Rural Roads, Inc. v.
LaHood, No. 1:11-CV-01031-SEB-DML, 2012 WL 442751 (S.D. Ind. Feb. 10, 2012); and Hoosier
Environmental Council v. U.S. Department of Transportation, No. 1:06-CV-1442-DFH-TAB, 2007 WL
4302642 (S.D. Ind. Dec. 10, 2007).

10