If you are like most people, when you hear the words “administrative law,” you think about big buildings in Washington D.C. where everyone wears suits and speaks in acronyms. Your mind probably does not turn a property owner seeking to install 117 feet of concrete seawall on Lake Manitou in Rochester, Indiana.[1] Yet administrative law is everywhere, including on the shore of Lake Manitou.

On February 24, 2020, the Indiana Supreme Court denied review in Indiana Department of Natural Resources v. Prosser, a case about concrete seawall.[2] The legal issue in Prosser is a familiar one in administrative law: What does “substantial evidence” review require?

In 2015, Kevin Prosser needed a permit under state law to install a concrete seawall on his property.[3] After the permit was denied, Mr. Prosser sought review from an administrative law judge (“ALJ”).[4] The ALJ concluded that because Mr. Prosser’s property is not “developed,” it is subject to special requirements, including that a seawall must be built with bioengineered materials.[5] Mr. Prosser argued, however, that the area is developed.[6] Both sides agreed that the relevant area had been excavated in 1947.[7] The question was whether that excavation “result[ed] in an increase in the total length of shoreline around the lake.”[8] According to Mr. Prosser, the shoreline was extended, and he had two eyewitnesses (who were children at the time) to prove it.[9] Aerial photos also arguably supported that position.[10] The State, however, offered evidence of its own that cast doubt on Mr. Prosser’s position.[11] The ALJ concluded that there was “insufficient” evidence that “the shoreline of Lake Manitou was increased . . . by dredging or other means” and that the eyewitness testimony was not dispositive.[12]

Mr. Prosser sought judicial review—at first, successfully.[13] He appealed the ALJ’s ruling to the trial court, which concluded that the State’s evidence was insufficient to overcome the eyewitness testimony.[14] The appellate court, however, disagreed.[15] The court reasoned that it was “bound by the agency’s findings of fact if those findings are supported by substantial evidence,” which standard, under both Indiana and federal precedent, is “more than a scintilla, but something less than a preponderance of the evidence.”[16] Applying that deferential standard, the court sided with the State.[17] After all, as the court explained, “it was ALJ’s job to evaluate the testimony of witnesses and other evidence for credibility and weight, and the ALJ’s evaluation of their evidence strikes us as neither arbitrary nor capricious.”[18] The Indiana Supreme Court denied review.[19]

Prosser is especially noteworthy because of a concurrence by Justice Geoffrey Slaughter. Although Slaughter agreed with his colleagues not to hear Prosser, he wrote separately to express concern about substantial evidence review itself.[20] Slaughter observed that “what qualifies as ‘substantial’ evidence is not substantial at all.”[21] Rather, “if there is sufficient evidence in the record, a reviewing court must defer to an agency’s factfinding,” with no de novo review by a jury or judge.[22] Slaughter also expressed discomfort with deference more generally and explained that in a future case he is “open to entertaining legal challenges to this system.”[23] Presumably litigants in Indiana will now begin formulating arguments in response to Slaughter’s call. What those arguments will be remains to be seen. But it is safe to say that administrative law creates difficult questions. Coming up with the right answers will be even more difficult.[24] But it is important to ask questions—and Indiana isn’t a bad place to start.


Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We also invite responses from our readers. To join the debate, please email us at [email protected].

[1] See Ind. Dep’t of Nat. Resources v. Prosser, 132 N.E.3d 397 (Ind. App.), trans. denied 139 N.E.3d 702 (Ind. App. 2019).

[2] See Prosser, 139 N.E.3d at 702.

[3] See Prosser, 132 N.E.3d at 398; see also Olivia Covington, Slaughter Invites Challenges to Reviews of Agency Adjudications,

THE INDIANA LAWYER, https://www.theindianalawyer.com/articles/slaughter-invites-challenges-to-reviews-of-agency-adjudications.

[4] Prosser, 132 N.E.3d at 398.

[5] See id. at 399-400.

[6] See Brief of Appellee at 13, Prosser, 132 N.E.3d 397 (No. 18A-MI-02644).

[7] Id. at 16.

[8]Appellant’s Response to Appellee’s Petition to Transfer at 7, Prosser, 132 N.E.3d 397 (No. 18A-MI-2644).

[9] See Prosser, 132 N.E.3d at 399.

[10] Id.

[11] Id.

[12] Id. at 400.

[13] Id.

[14] Id.

[15] Id. at 402.

[16] Id. at 401; see also, e.g., Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).

[17] See Prosser, 132 N.E.3d at 399, 402.

[18] Id.

[19] Prosser, 139 N.E.3d at 702.

[20] Id. (Slaughter, J., concurring).

[21] Id.

[22] Id.

[23] Id.

[24] See, e.g., Aaron L. Nielson, Confessions of an “Anti-Administrativist”, 131 Harv. L. Rev. F. 1, 12 (2017 (“Because administrative law is complex, there are many ideas, some better and some worse—and all needing further thinking.”).