[CITE:Rowe v. DNR, 10 CADDNAR 389 (2006)]
[VOLUME 10, PAGE 389]
Cause #: 05-199W
Caption: Rowe v. DNR
Administrative Law
Judge: Lucas
Attorneys: pro se; Boyko
Date: November
30, 2006
FINAL ORDER OF SUMMARY
JUDGMENT
Summary
judgment is granted in favor of the Department of Natural Resources and against
Paul A. Rowe and Shirley Rowe. The
denial of license PL-20,223 for the placement of pea gravel along the Rowes
property in
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
1. On November 9, 2005, Paul A.
Rowe and Shirley Rowe (the “Rowes”) filed correspondence with the Natural
Resources Commission (the “Commission”).
The correspondence sought administrative review of a determination by
the Department of Natural Resources (“DNR”) to deny a license under IC 14-26-2
(sometimes referred to as the “Lakes Preservation Act”) to place an underwater
beach across a portion of the applicant’s frontage along Lawrence Lake in
Marshall County.
2. The Rowes’ correspondence
initiated a proceeding before the Commission that is governed by IC 4-21.5
(sometimes referred to as the “Administrative Orders and Procedures Act” or
“AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its
implementation of AOPA.
3.
4. The Commission has adopted
rules at 312 IAC 11-1 through 312 IAC 11-5 to assist with the implementation of
the Lakes Preservation Act.
5. Pursuant to IC 14-10-2-3,
the Commission is the “ultimate authority” for this proceeding under AOPA.
6. A prehearing conference was
scheduled for November 28, 2005 at
7. The Commission has
jurisdiction over the subject matter and over the parties.
[VOLUME 10, PAGE 390]
8. The parties sought to
negotiate a settlement of the dispute in this proceeding, but a settlement was
not achieved. During a telephone status
conference held on July 12, 2006, the parties agreed and were then ordered to
comply with the following schedule for summary judgment:
(1) The DNR shall file its
motion for summary judgment by August 14, 2006.
(2) The Rowes would file any
response to the DNR’s motion, and any counter-motion for summary judgment, by
September 14, 2006.
9. In addition, the
administrative law judge stated during the July 12, 2006 telephone status
conference that, if, after receiving the DNR’s motion for summary judgment, the
Rowes determined to employ an attorney, the administrative law judge would
seriously consider a request by the attorney for a reasonable extension of time
in which to file the response described in Finding 8(2).
10. IC 4-21.5-3-23 governs
summary judgment under AOPA and provides:
(a) A party may, at any time
after a matter is assigned to an administrative law judge, move for a summary
judgment in the party’s favor as to all or any part of the issues in a
proceeding. The motion must be supported with affidavits or other evidence
permitted under this section and set forth specific facts showing that there is
not a genuine issue in dispute.
(b) The motion must be served at
least five (5) days before the time fixed for the hearing on the motion. The
adverse party may serve opposing affidavits before the day of hearing. The
administrative law judge may direct the parties to give oral argument on the
motion. The judgment sought shall be rendered immediately if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits and testimony, if any, show that a genuine issue as to any material
fact does not exist and that the moving party is entitled to a judgment as a
matter of law. A summary judgment may be rendered upon fewer than all the
issues or claims (such as the issue of penalties alone) although there is a
genuine issue as to damages or liability, as the case may be. A summary
judgment upon fewer than all the issues involved in a proceeding or with
respect to fewer than all the claims or parties is not a final order. The
administrative law judge shall designate the issues or claims upon which the
judge finds no genuine issue as to any material facts. Summary judgment may not
be granted as a matter of course because the opposing party fails to offer
opposing affidavits or evidence, but the administrative law judge shall make a
determination from the affidavits and testimony offered upon the matters placed
in issue by the pleadings or the evidence. If it appears from the affidavits of
a party opposing the motion that the party cannot for reasons stated present by
affidavit facts essential to justify the party’s opposition, the administrative
law judge may make any order that is just.
[VOLUME 10, PAGE 391]
(c) If on motion under this
section no order is rendered upon the whole case or for all the relief asked
and a hearing is necessary, the administrative law judge at the hearing of the
motion, by examining the pleadings and the evidence before it and by
interrogating any person, shall if practicable ascertain:
(1) what material facts exist without substantial controversy; and
(2) what material facts are actually and in good faith controverted.
The administrative law judge shall then make an order specifying the
facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is not in
controversy, and directing further proceedings in the action as are just. Upon
the hearing of the action, the facts specified are established in the judge’s
order under this subsection.
(d) Supporting and opposing
affidavits must:
(1) be made on personal knowledge;
(2) set forth facts that are admissible in evidence; and
(3) show affirmatively that the affiant is competent to testify to the matters
stated in the affidavit.
(e) The administrative law judge
may permit affidavits to be supplemented or opposed by depositions, answers to
interrogatories, further affidavits, or testimony of witnesses.
(f) If a motion for summary
judgment is made and supported under this section, an adverse party may not
rely upon the mere allegations or denials made in the adverse party’s pleadings
as a response to the motion. The adverse party shall respond to the motion with
affidavits or other evidence permitted under this section and set forth
specific facts showing that there is a genuine issue in dispute. If the adverse
party does not respond as required by this subsection, the administrative law
judge may enter summary judgment against the adverse party.
11. As provided in 312 IAC
3-1-10, a Commission administrative law judge may apply the Trial Rules where
not inconsistent with AOPA. As a result,
reference may generally be made to Trial Rule 56 and to reported decisions
based upon Trial Rule 56. In those
instances where Trial Rule 56 is inconsistent with IC 4-21.5-3-23, however, the
latter would control.
12. Summary judgment can be
granted when the evidentiary material shows there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of
law. Auto-Owners
Insurance Co. v. United Farm Bureau Insurance Co.., 560 N.E.2d 459 (
13. “A fact is ‘material’ for
summary judgment purposes if it helps to prove or disprove an essential element
of the plaintiff’s cause of action.” Graham v. Vasil Management Co., Inc. 618
N.E.2d 1349 (
[VOLUME 10, PAGE 392]
14. On August 14, 2006, the
“Respondent DNR’s Motion for Summary Judgment” and “Respondent DNR’s Memorandum
of Law in Support of Motion for Summary Judgment” were timely filed.
15. The Rowes were required by September 14, 2006 to file
any response to the DNR’s motion, and any counter-motion for summary judgment.
16. The Rowes have not filed a
response to DNR’s motion for summary judgment.
Neither has an attorney entered an appearance for the Rowes and requested
an extension of time to file a response to the DNR’s motion for summary
judgment.
17. On October 31, 2006, the DNR
filed its “Notice of Expiration of Deadlines” in which it urged that the Rowes
had not timely responded to the DNR’s motion for summary judgment.
18. The Rowes have not responded
to the DNR’s “Notice of Expiration of Deadlines”.
19. This proceeding involves administrative review
from the denial of license application PL-20,223 requesting the placement of an
underwater beach with a uniform layer of four to six inches of pea gravel on
the bed of
20. Requirements governing the
construction of an underwater beach within a public freshwater lake are set
forth at 312 IAC 11-4-4 and provide in pertinent part:
(a) A
written license under [the Lakes Preservation Act and 312 IAC 11] is required
to place material for an underwater beach within a public freshwater lake.
(b) The
director or a delegate shall not issue a license for the placement of:
(1)
filter cloth; or
(2) an
impermeable material;
beneath
or in an underwater beach.
(c) The
director or a delegate shall not issue a license for the placement of an
underwater beach…(2) along a natural shoreline.
[VOLUME 10, PAGE 393]
21. “Natural shoreline” is
defined at 312 IAC 11-2-14.5 as “a continuous section of unaltered shoreline or
waterline where the distance between lawful permanent structures is at least
two hundred fifty (250) feet.”
22. The Rowes offered no
documentation, and none appears in the record, to establish a material issue of
fact in dispute under IC 4-21.5-3-23 or under Trial Rule 56.
23. The evidence is unrefuted
that the Rowes seek to place an underwater beach along an area of
24. The DNR is entitled to
summary judgment in its favor and against the Rowes. The denial of the license sought by the Rowes
for the placement of an underwater beach along the area of