The issuance by the Department of Natural Resources of the Certificate of Approval for application FW-16,556 to AZTAR Indiana Gaming Corporation is affirmed.
FINDINGS OF FACT
1. The department of natural resources (the "department") is an agency as defined in IC 4-21.5-1-3.
2. Adjudicatory proceedings of the department are governed by IC 4-21.5, the Administrative Orders and Procedures Act (AOPA).
3. As defined in IC 4-21.5-1-15, the natural resources commission (the "commission") is the ultimate authority for the department for this proceeding. See formerly IC 14-3-3-21(a) and now recodified at IC 14-10-2-3.
4. The commission conducts any hearing for the department which is governed by the AOPA. See formerly IC 14-3-3-25 and now recodified at IC 14-11-3-2.
5. On June 19, l995, Mr. Don Mottley on behalf of a group called Save Our Rivers (the "claimant") petitioned the commission for administrative review and a stay of effectiveness of application FW-16,556. The request for stay was later withdrawn.
6. A certificate of approval was issued to the applicant, AZTAR Indiana Gaming Corporation (AZTAR) on May 31, l995.
7. The commission appointed Tim Rider as administrative Law judge (ALJ) for this case.
8. In addition to IC 4-21.5 and its procedural rule (310 IAC 0.6), IC 13-2-22 (recodified at IC 14-28-1), 310 IAC 6-1, IC 13-2-4 (recodified at IC 14-29-1) and 310 IAC 21 apply to this case.
9. The claimant's petition contained numerous contentions challenging AZTAR's certificate.
10. Prior to the hearing numerous issues were dismissed by the ALJ or voluntarily relinquished by the claimant.
11. At hearing the only issue remaining for litigation was an alleged violation of the navigable streams act (now IC 14-29-1).
12. The parties all agreed that the issue was as follows: "Does the placement of the protective cells below the ordinary high watermark unreasonably impair navigation or pose an unreasonable hazard to people or property?"
13. The certificate had been issued by the department prior to the filing of the petition with the commission. Previous rulings have held that, in this situation, the burden of going forward with the evidence lies with the claimant. See Brown v. DNR and Peabody Coal Company, 6 Caddnar 136, citing a commission decision dated May 20, l992 for AMAX Coal Company v. DNR and Jack Jarrett, 89-099R.
14. The claimant had several witnesses scheduled for the first day of hearing; however, only one appeared.
15. That witness, Captain Ken Scragg, was deemed by the ALJ to be an expert in riverboat safety.
16. However, while Captain Scragg testified as to numerous safety concerns he had in regard to the riverboat, he offered no testimony on the issue at bar.
17. In fact, under cross-examination by AZTAR, he admitted that he did not believe the protective cells were a hazard.
18. AZTAR immediately moved for a Trial Rule 50 judgment on the evidence. In response the claimant asked permission to attempt to obtain an additional witness who would be available the following day.
19. Since the parties had previously agree that certain witnesses could be offered out-of-order due to lack of availability at the beginning of the hearing, the ALJ denied the Trial Rule 50 motion but agreed to reconsider it when the claimant concluded its case.
20. During the remainder of the first hearing day the respondents offered numerous witnesses to support their position that the protective cells presented no hazard.
21. When the record was opened on the second day of hearing the claimant could present no other witness.
22. The respondents joined in a new Trial Rule 50 motion for a judgment on the evidence.
23. Since the claimant had not carried its burden of going forward with the evidence (in fact it presented no evidence to support the issue at bar) the ALJ granted the motion and concluded the hearing.