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Cause #: 96-019W
Name: DNR and Samuels v. Busch
Administrative Law Judge: Lucas
Attorneys: Nardi; Samuels, pro se; Jablonski
Date: August 26, 1998
ORDER
Summary judgment is entered in favor of the Department of Natural Resources and against Brenda Samuels as more particularly set forth in the Findings of Fact and Conclusions of Law. As a result, the claim by Brenda Samuels against James G. Busch in this proceeding is dismissed with prejudice.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Application of Summary Judgment to this Proceeding
1. Summary judgment is appropriate only where no genuine issue of material fact exists and where 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 (Ind. App. 1990). Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983). A moving party for summary judgment has the burden of showing that there is no genuine issue of material fact. Id.
2. As the moving party, the Department of Natural Resources (the "Department") has the burden of proving there is no genuine issue of material fact in this proceeding. The evidence presented on summary judgment must be viewed in the light most favorable to the party against whom summary judgment is sought. Horizon Bancorp v. Indiana Dep't of State Revenue, 626 N.E.2d 603, 605 (Ind. Tax 1993). If there is no genuine issue of material fact, the task is to apply the law to the undisputed facts. Knauf Fiber Glass, GmbH.v. State Bd. of Tax Com'rs, 629 N.E.2d 959, 961 (Ind. Tax 1994). The evidence must be viewed in the light most favorable to Brenda Samuels ("Samuels"), but if there is no genuine issue of material fact, the task is to apply the law to the undisputed facts.
3. The Department summarizes the facts in the "Memorandum in Support of Respondent DNR's Motion for Summary Judgment." The Department characterizes Samuels as raising two issues, and Samuels does not dispute this characterization. In addition, the affidavits attached to the "Motion for Summary Judgment as to Brenda Samuels Request to Intervene," filed on September 5, 1997, are considered for purposes of the Department's motion.
4. Accordingly, the two issues for resolution in this proceeding are matters pertaining to (1) the enforcement of an ordinance of the Lake Station, Indiana, and more specifically with regard to a Judgment Order filed with the Lake Superior Court (Cause No. 45DO2-9604-CP-402); and, (2) compliance by Busch with Certificate of Approval, After-the-Fact, [for] Construction in a Floodway of Deep River at 3164 Ripley Street, Lake Station, Lake County, FW-17,367, approved by the Department on November 1, 1996 (the "November permit"). The two issues are considered separately.
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B. Lack of Commission Jurisdiction over Judgment Order Entered in Lake Superior Court
5. An agreed Judgment Order was reached between Dorothy E. Busch, James G. Busch (the same James Busch who is a party to this proceeding), and Busch Construction and the City of Lake Station, Indiana and Shirley A. Wadding, Mayor, on June 19, 1996 in Lake Superior Court, Civil Division Room 2 (East Chicago, Indiana), Cause No. 45D02-9604-CP-402. This Judgment Order was founded in part on a Lake Station ordinance.
6. The Judgment Order applies to the same 3164 Ripley Street site in Lake Station as does the November permit, and it provides for "clean-up" to be performed by Busch Construction. The Judgment Order reflects the clean-up to be performed in front of the site, and the construction of a berm along State Route 51, are "subject to the regulations" of the Department. In addition, the Judgment Order specifies that it does not cover "fill to be placed. . . on real estate owned by Dorothy Busch or James G. Busch, which is under the jurisdiction of the Indiana Department of Natural Resources, and the United States Army Corp. of Engineers, except as provided by City of Lake Station Ordinance No. 94-03."
7. However, the Department and the Natural Resources Commission (the "Commission") have only the jurisdictions conferred upon them by law. For the most part, the legal authorities for these jurisdictions are found in IC 14, but other notable legal authorities are found in IC 4, IC 6, IC 13, and IC 25. As applied to this proceeding, the jurisdiction of the Commission is as the "ultimate authority" for the Department under IC 4-21.5 (also known as the "administrative orders and procedures act" or "AOPA"). "[T]he [C]ommission is the ultimate authority of the [D]epartment under IC 4-21.5." IC 14-10-2-3.
8. The jurisdictions of the Department and the Commission do not extend to the enforcement of a local ordinance. For the most part, those authorities are vested in the city or other municipal corporation which adopts the ordinance. See, for example, IC 36-1-6-3 which provides ordinances may be enforced by a municipal corporation in a court. Neither do those jurisdictions of the Department or Commission extend to orders entered by civil courts with respect to enforcement of those ordinances.
9. The Commission has no jurisdiction to act upon or enforce the Agreed Judgment. That jurisdiction rests with the Lake Superior Court.
C. No Showing of Legal or Factual Basis to Support Alleged Violations of the November Permit
10. This proceeding was initiated, with the filing of a complaint on February 8, 1996, as an enforcement action by the Department against James Busch. Samuels moved to intervene in the proceeding on February 26; the motion was granted without objection by the other parties on March 13, 1996. [sic: misnumbered in original document.]
10. [sic.] The November Permit (issued November 1, 1996) was not in existence at the time the proceeding was initiated. Neither was it in existence at the time Samuels sought or was granted intervention. Neither the Department's complaint nor Samuels motion to intervene made reference to the November Permit. They could not have done so.
11. Decisions by governmental agencies pertaining to the issuance or nonissuance of complaints are exempt from the AOPA. As provided in IC 4-21.5-2-5, the AOPA "does not apply" to "(8) A decision to issue or not issue a complaint, summons, or similar accusation."
12. Samuels contends in her September 8, 1997 letter that James Busch is in violation of the November Permit, alleging that Busch has failed to reclaim areas in a timely fashion as anticipated by the November Permit. She further contends the aerial
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photographs attached to her reply to the Department's motion for summary judgment show continued or new violations.
13. The contention by Samuels fails to demonstrate a genuine issue of material fact for two reasons. Both of these reasons would, standing alone, be fatal to Samuels' response to the Department's motion:
(1) The November Permit is not at issue in this proceeding. Unless the Department decides to
initiate an enforcement action which alleges the November Permit has been violated, the AOPA
in IC 4-21.5-2-5(8) exempts that decision from administrative review. In other words, the
Commission cannot function as the ultimate authority for the Department under the AOPA,
because the AOPA exempts a decision by an agency not to initiate an enforcement action.
Because the Commission lacks authority to grant administrative review to a decision by the
Department not to pursue an alleged violation of the November Permit, there is no legal basis for
Samuels to pursue the alleged violation in this proceeding.
(2) The aer ial photographs do not, in themselves, demonstrate that there is in dispute any genuine issue of material fact. Although the photographs might serve to support testimony or other exhibits, standing alone and giving them the greatest possible credence, they do no more than generally depict Deep River in or near Lake Station, Indiana on
December 29, 1994 and on June 17, 1997. The aerial photographs do not, for example, identify:
(1) which real estate is owned by Busch;
(2) the boundaries of the floodway for Deep River; or
(3) who placed any alleged fill.
Even construing the evidence before the Commission most favorably to Samuels, there is no basis upon which a violation of the November Permit could be sustained.
14. Samuels has made no showing of a legal or factual basis to support alleged violations by James Busch which are currently subject to administrative review by the Commission.
15. The
Department has sustained its burden that there is no material issue of fact and that the
Department is entitled to summary judgment in its favor and against Samuels.