In a short memorandum decision, not for publication, the Indiana Court of Appeals held that an Order from LaGrange County properly dismissed a petition for judicial review.
In August and September 2009, the Indiana Office of Environmental Adjudication (OEA) received petitions from property owners (Petitioners), including Fiedler, asking the OEA to review a construction permit that the Indiana Department of Environmental Management (IDEM) had issued to the LaGrange County Regional Utility District (LaGrange) so that LaGrange could install a sanitary sewage collection and transmission system near Shipshewana Lake in LaGrange County, Indiana.
LaGrange and the Petitioners filed competing motions for summary judgment. The OEA issued findings of fact, conclusions of law, and a final order, dismissing the Petitioners' petition for review. The OEA sent a copy of the Final Order to the Petitioners' representatives by certified mail on May 6, 2010, and Fiedler received the Final Order on May 11, 2010.
Then, on June 9, 2010, Fiedler filed a petition for judicial review of the OEA's Final Order. His petition did not contain language stating that it was submitted under oath or by affirmation, or that the representations in the petition were true. IDEM filed a motion to dismiss Fiedler's petition.
IDEM claimed, among other things, that Fiedler had failed to meet the jurisdictional requirements of I.C. § 4-21.5-5-5, which requires a plaintiff to file a petition for review within 30 days of service of the notice of agency action that is the subject of the petition. Subsequently, the trial court held a hearing on the motion to dismiss and dismissed Fiedler's petition.
On appeal, Fiedler argued that the trial court did have jurisdiction over his claim because he filed it within a timely manner, as required by I.C. § 4-21.5-5-5. Indiana Code § 4-21.5-5-5 identifies the required procedure for filing a petition for review when it states that "[e]xcept as otherwise provided, a petition for review is timely only if it is filed within thirty (30) days after the date that notice of the agency action that is the subject of the petition for judicial review was served." Further, a person who "fails to timely object to an order . . . waive[s] the  right to judicial review. . . ." I.C. § 4-21.5-5-4.
Fiedler claimed that he filed his petition for judicial review within the 30 day time limit required by I.C. § 4-21.5-5-5, but the Court of Appeals did not agree with this argument. It found that he filed his petition one day after the time limit.
The OEA sent a copy of the Final Order to the Petitioners' representatives, including Fiedler, by certified mail on May 6, 2010, which qualifies as the commencement of service under I.C. § 4-21.5-3-2. Because the Court does not include the day from which the designated time begins to run, though, the first day for the purposes of computing the 30 day time limit was May 7, 2010. See I.C. § 4-21.5-3-2(a). Fiedler in actuality had a 33 day time limit because he received notice through the United States mail. See I.C. § 4-21.5-3-2(e). Under those standards, Fiedler was required to file his petition by Tuesday, June 8, 2010. However, he did not file his petition until June 9, 2010.
Fiedler made an additional argument, which the Court of Appeals rejected. He argued that the Court should only include business days in computing the time limit. However, the Court concluded based on I.C. § 4-21.5-3-2 that the time period the Code is referring to is the 30-day time limit, not the 3 day extension. Indiana Code section 4-21.5-3-2 declares that "[a] period of time under this article commences when a person is served with a paper. . . ." The 30-day limit commences with the service of a paper, but not the 3-day extension. Therefore, Fiedler did not timely file his petition. See I.C. 4-21.5-5-4.