The Perils of Representing Yourself Before an Administrative Agency

Livestock facilities must go through numerous steps in order to operate, including state permit approval and county siting approval. Here in Indiana, the Indiana Department of Environmental Management ("IDEM") is the state body which reviews confined feeding applications. Once IDEM makes a final decision regarding a facility's application, affected parties have 15 days (18 days, with a mail delay) to appeal IDEM's decision. Any appeal is heard by the Office of Environmental Adjudication ("OEA") in Indianapolis. IDEM will represent itself during any appeal proceedings. Petitioners challenging a permit may represent themselves or may hire an attorney to represent them. Permittees also may represent themselves, but they do so at their peril. 

• Indiana Rules of Evidence and the Indiana Trial Rules generally apply to administrative proceedings. Administrative judges can exercise discretion regarding these rules, but pro se litigants (people who represent themselves) are subject to the same rules that apply to attorneys. 
• Similarly, legal procedural requirements related to deadlines and service still apply. Cases can be won and lost based on the timing and completion of service. 
• The OEA is not always the final stop. Once the OEA rules on the permit appeal, the non-prevailing party can appeal the decision. During the OEA proceedings, a permittee must be aware that they are making a record for appeal. Any fact or argument which could be important down the road must be raised at the OEA level to protect the record.

There are, of course, other reasons not to represent yourself at the OEA, including an attorney's emotional detachment from the project, familiarity with state statutes and regulations, knowledge of common legal appeal arguments, and ability to pursue settlement negotiations or mediation. A good attorney will work with your consultant to best represent you and to protect your permit.

If you are faced with a CFO or CAFO permit appeal, consider talking to legal counsel to decide whether you'd like representation or if you are comfortable representing yourself. Most attorneys will provide free initial consultations.