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Cause #: 02-075W
Caption: Samuels, et al. v. Busch and DNR
Administrative Law Judge: Wilcox
Attorneys: pro se (Samuels); Ormes (Busch); Roth (DNR)
Date: March 10, 2003
FINAL ORDER
Summary judgment is granted in favor of the Department of Natural Resources and James Busch. Certificate of Approval for Construction in a Floodway under permit application FW-21,077 is approved as issued by the Department of Natural Resources.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The "Administrative Orders and Procedures Act", ("AOPA"), at IC 4-21.5 and the "Flood Control Act" at IC 14-28 apply to these proceedings.
The Department of Natural Resources, ("Department"), is the state agency responsible for the regulation and supervision of floodways in Indiana. IC 14-28-1-1.
Pursuant to IC 14-10-2-4, the Natural Resources Commission is the ultimate authority of the department under IC 4-21.5.
Request for Review
Claimants assert that the creation of a pond would "create additional flooding for the residents downstream of the Busch property do to the residents downstream of the Busch property do to the fact this area is a buffer for the overflow of Deep River..." Additionally, Claimants provide:
In addition, under "Special Conditions" Item 2, previous approvals of other prior violations in the floodway by James Busch where weed was instructed has never been done; Item 5, the fill is to be placed landward of the floodway but the property is entirely in a floodway as identified on the flood boundary map for Lake Station, which[,] therefore[,] the fill would need to be removed from the site completely.
A prehearing conference was held on July 8, 2002.
The Department's Motion for Judgment on the Pleadings provides:
On May 2, 2002, Brenda Samuels ("Samuels") petitioned the Commission to administratively review the Department's approval of the application of Respondent
James Busch ("Busch") for the construction of a pond on Busch's property. At all stages of this proceeding, Samuels has the burden of persuasion and the burden of going forward with the proof."
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In Samuels' purported answers, Respondent's Exhibit A attached hereto, to the Department's Interrogatories and Request for Production, Respondent's Exhibit B attached hereto, Samuels states that she will not call any expert witness at the hearing of this cause, see Claimant's response to Interrogatory No. 6; and that she will not call. Any lay witness at the hearing of this cause, see Claimant's response to Interrogatory No. 7. Further, Samuels states no factual or legal bases and provides no exhibits to support her burden of proof in this case. See Claimant's response to Interrogatory No. 2."
Samuels' Response to Respondent's Motion for Judgment on the Pleadings, provides an overview of discovery requests and argument for denying the FW-21077 permit application. Samuels admits that Claimants will not call witnesses in this proceeding, as shown in the Department's Exhibits A and B, and Claimants' response. Claimants' response provides, "We, the Claimants, feel...since we do not have a witness testifying...is NOT good reason for the above-mentioned case to be given Judgement in favor of the respondents..."
Claimant includes several documents in her Response to Respondents Motion for Judgment on the Pleadings, including a FEMA map at document 1, a Lake Station ordinance in document 2, a Lake Station Zoning Map in document 3, and several other attachments. The documents as attached are described by Samuels as "proof that Busch has continued to be in violation of the Department of Natural Resources' issuance of an "after-the-fact" permit by continuing to place fill on land which is within the jurisdiction of the Department..."
Judgment on the Pleadings Standard of Review
Trial Rule 12 (c) provides for the consideration of motions for judgment on the pleadings:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
"Matters outside the pleadings" are "those materials that would be admissible for summary judgment purposes, such as: depositions, answers to interrogatories, admissions, and affidavits." Davidson v. Cincinnati Ins. Co., 572 N.E.2d 502, 505 (Ind.Ct.App.1991), trans. denied, citing Campbell v. El Dee Apartments, 701 N.E.2d 616 (Ind. App.1998).
Trial Rule 12 (C) requires that this tribunal treat the motion for judgment on the pleadings as a motion for summary judgment, since matters outside the pleadings are presented to and not excluded by the court, specifically, Claimants' Answers to First Set
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of Interrogatories, and Response to Request for Production of Documents in DNR Exhibit A.
Summary Judgment Standard of Review
"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." See IC 4-21.5-3-23(b).
Summary judgment is appropriate if the designated evidentiary materials show there is no genuine issue of material fact, and, as a matter of law, the moving party is entitled to judgment. Chester v. Indianapolis Newspapers, Inc., 553 N.E. 2d 137, 139 (Ind. App. 2Dist. 1990). Summary judgment is appropriate "to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law." United Farm Bureau Mut. Ins. Co. v. Schult, 602 N.E. 2d 173, 174 (Ind. App. 1Dist. 1992) citing Bassett v. Glock (1977), 174 Ind. App. 439, 368 N.E. 2d 18.
The party moving for summary judgment bears the burden of proving "the absence of a factual issue and its entitlement to judgment as a matter of law." Norman v. Turkey Run Community School Corp., 274 Ind. 310, 411 N.E. 2d 614, 615 (1980). If that burden is met, "...the opponent must respond by setting forth specific facts showing a genuine issue for trial." Powell v. American Health Fitness Center, 694 N.E. 2d 757, 759 citing Stephenson v. Ledbetter, 596 N.E. 2d 1369, 1371 (Ind. 1992).
The Department's and Busch's Motions for Judgment on the Pleadings asserting that Claimants admit that they will not provide witness testimony at hearing or exhibits in opposition to the FW-21,077, supports a determination that Claimants cannot meet their burden of proof. Claimants fail to provide facts in opposition to the Respondents' assertions that Claimants cannot meet their burden of proof to show the FW-21,077 permit should not issue. Claimants provide no material facts that support a different finding.
Claimants have the burden of going forward and the burden of persuasion, commonly referred to as the burden of proof, under the Administrative Orders and Procedures Act at IC 4-21.5.
Materials provided in Claimants' response include several documents, documents which are not supported by affidavits, as required by IC 4-21.5-3-23. Specifically affidavits should be provided in support of a motion for summary judgment or in opposition, and must be "based on personal knowledge", "set forth facts that are admissible in evidence",
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and must "show affirmatively that the affiant is competent to testify to the matters stated in the affidavit." No such affidavits are provided in Claimants' response.
The lack of affidavits supporting Claimants' documented evidence, and the admission that no witnesses will be utilized by Claimants in a hearing of this cause, support a determination that no genuine issue of material fact exists as to whether Claimants can meet their burden of proof at a hearing in this cause.