CADDNAR

[CITE: Hathaway v. Department of Natural Resources, 10 CADDNAR 57 (2005)]

FINAL ORDER OF SUMMARY JUDGMENT

Summary judgment is granted in favor of the Department of Natural Resources and against William Hathaway. Uniformly requiring a group activity such as a fishing tournament to obtain liability insurance, as a condition to obtaining a license for the use of an access site operated by the DNR, is a lawful exercise of IC 14-19-1-2 as implemented by the Commission through 312 IAC 8-2-15. A genuine issue of material fact does not exist. This authority has been applied uniformly to those fishing tournaments and similar group activities, that were known by the DNR's Division of Fish and Wildlife to have been conducted at the DNR access site on Lake Wawasee, since the facility was opened in 1988. The DNR may lawfully require Hathaway to obtain liability insurance as a condition to granting him a license to sponsor a fishing tournament at the DNR access site on Lake Wawasee.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. On March 17, 2005, William Hathaway ("Hathaway") filed correspondence to initiate administrative review of a license condition imposed by the Department of Natural Resources (the "DNR") for the usage of a public access site managed by the DNR at Lake Wawasee (the "DNR access site on Lake Wawasee"). The correspondence began a proceeding that is subject to IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA").

2. The Natural Resources Commission (the "Commission") is the "ultimate authority" for this proceeding under AOPA. IC 14-10-2-3. The Commission has adopted rules under 312 IAC 3-1 to assist with its implementation of AOPA.

3. On May 6, 2004, the DNR filed the "Department's Motion to Dismiss for Failure to Qualify for Review Ind. Code 4-21.5-3-7." In response, Hathaway filed a multi-part document on July 2, 2004.

4. The Commission's Administrative Law Judge denied the DNR's motion to dismiss in a written entry made on September 14, 2004. In the entry, the Administrative Law Judge reasoned (with prior emphasis removed):

On its face, the Department's motion and supporting argument appear to have merit. As a general premise, in order to obtain administrative review of a license condition or denial, the license applicant must first file a completed application. 312 IAC 8-2-15(g) is consistent with this premise. A license applicant is entitled to administrative review upon a showing of sufficient facts under IC 4-21.5-3-7(a)(1). An applicant who is denied an application would typically

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qualify under IC 4-21.5-3-7(a)(1)(A). IC 4-21.5-1-4(2) applies if an agency does not act timely upon an application.

Stephen Roth, Property Manager of Tri-County Fish and Wildlife Area and the Wawasee Family Fishing Area, states in his affidavit of May 3, 2004. "While I received several telephone calls from Mr. Hathaway regarding the process for receiving a special use permit for the Wawasee Family Fishing Area, I have not received an application for same to date." William Hathaway does not refute this statement.

If there were nothing more in the record, the Department's motion might be granted. Yet the record also includes the Department's application form for the subject property. The form states in pertinent part:

______________________________________________________________

LIABILITY RELEASE: (Mandatory)

Attach Certificate of Insurance, and this must list the Indiana Department of Natural Resources as additional insured.

Insurance minimum requirements:
$100,000 - individual
300,000 - occurrence
50,000 - property damage

Mail completed forms along with insurance certificate to:

_____________________________________________________________

Providing the "mandatory" liability insurance is a condition precedent to a completed application. If the Department's application form did not mandate insurance and Hathaway completed an application, then the Department subsequently required liability insurance as a condition for issuance of the license, Hathaway would be entitled to administrative review of the condition.

The Department's application form cannot place Hathaway in a "Catch 22". In order to complete the application, he must provide liability insurance. The license is then granted, so he has no legal basis for administrative review. How could Hathaway be aggrieved by a license that is issued to him consistently with his application? But if he does not provide liability insurance, he has not completed the application, so he has no legal basis for administrative review. Either way, Hathaway would be disqualified from seeking administrative review.

The Department's motion to dismiss must properly be denied.

5. The DNR filed the "Respondent, Department of Natural Resources', Motion for Summary Judgment" on January 5, 2005. In effect, the motion urged that even assuming

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Hathaway was entitled to review of the requirement for liability insurance, the requirement was lawful and should be sustained. Hathaway filed the "Claimant's Response to Respondent's Motion for Summary Judgment" on March 22, 2005. The "Respondent, Department of Natural Resources', Reply to Claimant's Response to Respondent's Motion for Summary Judgment" was filed on April 5, 2005.

6. Summary judgment applies to this proceeding under IC 4-21.5-3-23. IC 4-21.5-3-23(b) provides in pertinent part. "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 of material fact does not exist and that the moving party is entitled to judgment as a matter of law.... 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." As provided in pertinent part in IC 4-21.5-3-23(c): "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."

7. "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 (Ind. App. 1993). "A factual issue is 'genuine' for purposes of summary judgment if the trier of fact is required to resolve an opposing party's different versions of the underlying facts." York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).

8. IC 14-19-1-2 provides the DNR may make "available to the public under rules adopted by the [DNR] public parks and other suitable places for recreation, conservation, and management of natural and cultural resources. The rules may include a procedure for the establishment of a schedule of admission fees and service charges to the parks and other places of recreation."

9. The Commission has adopted rules at 312 IAC 8 to assist with the DNR's management of lands that are available for public use. The rule section most pertinent to this proceeding is 312 IAC 8-2-15. This "section governs the use of an area within a DNR property that is open to the public by a person to conduct a public meeting, parade, demonstration, ceremony, contest, competition, sporting activity, or other special event." 312 IAC 8-2-15(a).

10. The DNR access site on Lake Wawasee is a DNR property that is subject to 312 IAC 8-2-15.

11. As provided in 312 IAC 8-2-15(e), an "area open to the public may not be used for a contest, competition, sporting event, or other similar activity unless authorized by a license. An application for a license under this subsection shall be delivered to the department at least thirty (30) days before the proposed event...."

12. As provided in 312 IAC 8-2-15(g), "The property manager shall make an initial determination to issue or deny an application for a license sought under this section within a reasonable period of time after receipt of the application. The license may include conditions that are reasonably necessary to satisfy the purposes of this section. An applicant or other affected person who is aggrieved may take administrative review to the commission under IC 4-21.5 and 312 IAC 3-1." This requirement is sometimes referred to by the DNR as "special use" licensure.

13. This proceeding was precipitated as a collateral consequence of a new Commission rule at 312 IAC 2-4, effective October 1, 2003, which licenses fishing tournaments on

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Lake Wawasee. For a lake subject to licensure, the new rule for fishing tournaments requires an advance application and notice to the DNR. Lake Wawasee is among the lakes where licensure is required.

14. The adoption of 312 IAC 2-4 did not impose new standards pertaining to the group or "special use" of a DNR property. Yet a consequence of the new rule is that the DNR's Division of Fish and Wildlife is now informed, in advance, of fishing tournaments on Lake Wawasee that could have previously occurred without its knowledge.

15. A fishing tournament is a type of "competition, sporting event, or other similar activity" that is subject to 312 IAC 8-2-15.

16. Stephen Roth is the property manager with the DNR's Division of Fish and Wildlife for the DNR access site on Lake Wawasee. He has served in this position continuously since being employed by the DNR in 1990. Affidavit of Stephen Roth, ¶ 3 (January 3, 2005).

17. Since the DNR access site on Lake Wawasee was opened in 1988, a special use license has been required for group events, including fishing tournaments. "Each such license granted has contained the condition that the group obtaining the license provide proof of insurance and sign a liability waiver." Affidavit of Stephen Roth, ¶ 4 (January 3, 2005).

18. Roth conceded that a fishing tournament before the October 2003 effective date of 312 IAC 2-4 might have been conducted without the knowledge of the DNR and without licensure as a "special event" under 312 IAC 8-2-15. If the tournament had come to the DNR's attention, however, the DNR "would have required the group to obtain a special use license and to provide proof of insurance for the event." Affidavit of Stephen Roth, ¶ 5 (January 3, 2005).

19. Mark Reiter is the Public Lands Manager for the DNR's Division of Fish and Wildlife, and he has been employed by the DNR continuously since 1997. According to Reiter, the DNR has had "a consistent policy of requiring special use licenses continuously since I have worked at the [DNR]. Proof of insurance and completion of a liability waiver have been required as conditions for these licenses.... While it is not always possible for the [DNR] to enforce our special use license policy at every property managed by the [DNR], a special use license would be required for a group event such as a fishing tournament at a boat ramp.... The purpose...of requiring proof of insurance for the event and a signed waiver of liability is that the organizers of a group event are directing the participants and not the [DNR]. In contrast, the [DNR] has a more direct role in directing the actions of individual users of [DNR] property.... The condition of requiring proof of insurance for special use licenses, as well as the condition that licenses indemnify the [DNR] against loss from the event, is reasonably necessary to satisfy the purposes of 312 IAC 8-2-15." Affidavit of Mark Reiter (December 28, 2004).

20. Hathaway offers no affidavit or other evidence in response to the affidavits of Roth and Reiter, although he urges in the "Claimant's Response to Respondent's Motion for Summary Judgment" that "No one has been given a reasonable explanation as to why the state required ramp insurance. This is an insurmountable burden to someone, such as myself. To simply require those involved in Bass tournaments to provide insurance when the general public is allowed free access to the ramp at all other times is not only unfair, but without rationale."

21. In adopting 312 IAC 8-2-15, the Commission made a policy determination that group activities may result in a greater impact to a DNR property and to other users than do the activities of an individual or family. The relationship of the group sponsor

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to the participants potentially complicates the Department's interest in managing the activities of those participants. As a consequence, group activities have been made subject to additional licensing standards. Requiring liability insurance of the sponsors of all group activities at the DNR access site on Lake Wawasee is an ascertainable standard, and it is a nondiscriminatory approach to implementing the Commission policy embodied by 312 IAC 8-2-15.

22. Hathaway has offered no evidence that either the policy or its implementation is unreasonable. Neither does the record show that requiring liability insurance discriminates against him or against fishing tournaments, generally, as opposed to other group activities. The record supports the proposition that the requirement has been applied consistently to any group activity, at least any activity known by the DNR's Division of Fish and Wildlife. Finally, Hathaway offers no evidence that requiring liability insurance is an "insurmountable burden" upon him or upon another fishing tournament sponsor similarly situated.

23. A genuine issue of material fact does not exist in this proceeding, and the DNR is entitled to summary judgment as a matter of law. The DNR is authorized by IC 14-19-1-2 to provide for public use of DNR properties under rules adopted by the Commission. The Commission has adopted rules at 312 IAC 8. 312 IAC 8-2-15 applies to contests, competitions, sporting events, and similar activities. Fishing tournaments are within the class of activities governed by 312 IAC 8-2-15. Uniformly requiring proof of liability insurance from a person sponsoring a fishing tournament, that uses a DNR property, is a reasonable application of the statutory authority and the Commission's regulatory policy.