[CITE: Bergan v. DNR, 10 CADDNAR 384 (2006)]
[VOLUME 10, PAGE 384]
Cause #:05-203D
Caption: Bergan v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se; Boyko
Date: December 8, 2006
FINAL ORDER OF SUMMARY
JUDGMENT
Summary
judgment is granted in favor of the Department of Natural Resources and against
Joe Bergan.
The license issued to Joe Bergan under IC
14-22-14 is revoked. As a matter of law,
the license cannot be reinstated.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
1. On November 28, 2005, Joseph
Anthony Bergan, Jr., also known as Joe Bergan, (“Bergan”) filed an email
with the Natural Resources Commission (the “Commission”). The email sought administrative review of a
determination by the Department of Natural Resources (“DNR”) to revoke the reservation
of a commercial fishing license under IC 14-22-14 to take fish from the
2. The email from Bergan 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. A prehearing
conference was scheduled for January 6, 2006 at
4. At Bergan’s
request, the January 6 prehearing was continued and
rescheduled for May 4, 2006 in
5. By an email filed on April
26, 2006, the parties agreed to the following schedule instead of participating
in a prehearing conference on May 4, 2006:
(1) The parties would complete
any discovery by August 7, 2006.
(2) Either party was granted
leave to file a motion for summary judgment by September 15, 2006.
[VOLUME 10, PAGE 385]
(3) If a party filed a motion
for summary judgment, the other party was provided until
October 16, 2006 to file a response.
6. In an email sent later on
April 26, the administrative law judge approved, and then ordered the parties
to comply with, their agreement concerning the scheduling of discovery and of
summary judgment.
7. 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.
(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
[VOLUME 10, PAGE 386]
(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.
8. 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.
9. 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 (
10. “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 (
11. On September 15, 2006, the
“Respondent DNR’s Motion for Summary Judgment” and Memorandum
of Law in Support of Motion for Summary Judgment” was timely filed. “Respondent DNR’s
Filing and Designation of Affidavits and Exhibits in Support of Motion for
Summary Judgment Filed on September 15, 2006” was filed on September 18, 2006.
[VOLUME 10, PAGE 387]
12. Bergan was required by October 16,
2006 to file any response to the DNR’s motion for
summary judgment.
13. Bergan has not filed a response to
DNR’s motion for summary judgment. Neither has Bergan
requested any extension of time to file its response to the DNR’s
motion for summary judgment.
14. On October 31, 2006, the DNR
filed its “Notice of Expiration of Deadlines” in which it urged that Bergan had not timely responded to the DNR’s
motion for summary judgment.
15. Bergan has not responded to the DNR’s “Notice of Expiration of Deadlines”.
16. On January 1, 1997, the
State of
17. On January 18, 2006, Bergan filed an application to continue a reservation of
his license under the Lake Michigan Commercial Fishing Act. In the application, Bergan
stated his current address was
18. Additional evidence that Bergan is not a resident of
19. Additional evidence that Bergan is not a resident of
20. IC 14-22-14-6 controls the
eligibility of an individual to hold a license under the Lake Michigan
Commercial Fishing Act:
To be
eligible to hold a commercial fishing license, the following conditions must be
met:
(1) If
the person is not a corporation, all individuals comprising the person must be
residents of
[VOLUME 10, PAGE 388]
21. As applicable to the Lake
Michigan Commercial Fishing Act, “resident” means an individual who resides in
22. The material facts as to the
Bergan’s residency for the past five years are
without controversy. He was either a
resident of
23. A knowing failure to
maintain an
24. The determination by Joe Bergan to reside in
25. Bergan 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.
26. The license issued under the
Lake Michigan Commercial Fishing Act to Joe Bergan
should be revoked under IC 14-22-14-26(a).
27. Pursuant to IC
14-22-14-26(b), a license revoked under IC 14-22-14-26 cannot be reinstated.
28. The DNR is entitled to
summary judgment in its favor and against Bergan. The license issued by the DNR to Bergan, under the Lake Michigan Commercial Fishing Act,
should be revoked and cannot be reinstated.