Indiana Dept. Natural Resources v. Solar Sources

FOR PUBLICATION ATTORNEYS FOR APPELLANT : ATTORNEY FOR APPELLEE : JEFFREY A. MODISETT MARY M. RUNNELLS Attorney General of Indiana Bloomington, Indiana MYRA P. SPICKER Deputy Attorney General RACHEL ZAFFRANN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA INDIANA DEPARTMENT OF NATURAL ) RESOURCES, ) ) Appellant-Respondent, ) ) vs. ) No. 63A05-9708-CV-346 ) SOLAR SOURCES, INC., ) ) Appellee-Petitioner. ) APPEAL FROM THE PIKE CIRCUIT COURT The Honorable Marvin D. Stratton, Judge Cause No. 63C01-9602-MI-32 February 11, 1999 OPINION ON REHEARING - FOR PUBLICATION RUCKER, Judge Solar Sources, Inc. (Solar) and the Department of Natural Resources (DNR) seek rehearing of our opinion cited as Dept. of Natural Resources v. Solar Sources, Inc. , 701 N.E.2d 1244 (Ind. Ct. App. 1998). Although asserting different grounds for their respective petitions, both parties complain of the opinion’s last sentence which declares “[t]hus Solar was not required to revise its permits as DNR requested.” Id. at 1247. As the parties correctly point out the question of whether Solar was required to revise its permits was not before the trial court, and the trial court did not rule on the issue. Indeed the record shows Solar sought administrative review of the order requiring the company to revise its permits. However an Administrative Law Judge determined that the review was time barred. Solar did not appeal that determination. Rather, the question before the trial court concerned whether the DNR properly construed 310 IAC 12-3-43 and 310 IAC 12-5-36. We determined that it did not and affirmed the trial court. Although our decision will likely affect any future permits Solar may obtain, it has no bearing on Solar’s current permits. That portion of our original opinion indicating otherwise is hereby vacated. As provided herein the parties’ respective petitions for rehearing are granted. In all other respects they are denied. SHARPNACK, C.J., and DARDEN, J., concur.