CADDNAR


[CITE: Kingdom Prairie Farm & Preserve v. DNR, 10 CADDNAR 167 (2005)]

[VOLUME 10, PAGE 167]

Cause #: 05-117D
Caption: Kingdom Prairie Farm & Preserve v. DNR
Administrative Law Judge: Lucas
Attorneys: Bope (pro se); Knotek
Date: October 11, 2005

FINAL ORDER OF SUMMARY JUDGMENT

Summary judgment is granted in favor of the Department of Natural Resources and against Bill Bope and Amy Bope, doing business as, Kingdom Prairie Farm & Preserve. The renewal of their application to operate a licensed shooting preserve in California Township, Starke County, is denied.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. On June 8, 2005, Amy Bope, co-founder of Kingdom Prairie Farm & Preserve ("Kingdom Prairie Preserve") filed correspondence with the Natural Resources Commission (the "Commission"). The correspondence sought administrative review of a determination by the Department of Natural Resources ("DNR") to deny the renewal of a license to operate a shooting preserve. The correspondence 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.

2. As described by Amy Bope in the correspondence referenced in Finding 1:

We started our preserve two seasons ago. Before we planned our opening, we met with out local conservation officer and asked him specifically about being within 5 miles of the Winamac Fish and Wildlife Preserve. He said this law didn't affect us because we didn't have water fowls to release. He then asked the Lieutenant to make sure that was correct and he said the same thing. We then established our preserve knowing that we met every criteria.

We put a lot of money into establishing our preserve and without the preserve, there is no way of paying our loan back. Secondly, we would have never opened the preserve to begin with if we knew within being 5 miles would be an issue. Because of us being misled, we are in this predicament today.

3. A prehearing conference was scheduled for June 30, 2005 in at 100 West Water Street in Michigan City. Kingdom Prairie Preserve and the DNR were timely notified of the prehearing conference.

4. The prehearing conference was conducted as scheduled on June 30, 2005. Bill Bope and Ann Bope appeared on behalf of Kingdom Prairie Preserve. Ann Knotek was the attorney for the DNR, and she was accompanied by Lt. Jerry Shepherd and Conservation Officer Brian Hultquist of the DNR's Division of Law Enforcement, as well as Linnea Petercheff of the DNR's Division of Fish and Wildlife.

5. During the prehearing conference, the parties agreed and were then ordered to comply with the following schedule for the consideration of a motion or cross-motion for summary judgment:

[VOL. 10, PAGE 168]

(1) The DNR shall file any motion for summary judgment by August 1, 2005.
(2) Kingdom Prairie Preserve shall file any response to the DNR's motion and any cross-motion for summary judgment by September 1, 2005.
(3) The DNR shall file any reply to the response and any response to a cross-motion by September 15, 2005.

6. During the prehearing, the administrative law judge informed the parties that IC 4-21.5-3-23 controls summary judgment. Where not inconsistent with AOPA, a party may also apply Trial Rule 56 in the presentation of or response to a motion for summary judgment.

7. IC 4-21.5-3-23 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
(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.

[VOL. 10, PAGE 169]

(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. Shell Oil Co. v. Lovold Co., 705 N.E.2d 981 (Ind. 1988).

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 (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).

11. On July 26, 2005, the "Respondent, Department of Natural Resources', Motion for Summary Judgment" and "Memorandum in Support of Respondent, Department of Natural Resources', Motion for Summary Judgment" were timely filed. On August 4, 2005, the DNR filed its "Notice of Filing of Original Signed Affidavit of Brian Hultquist Re: Respondent Department of Natural Resources' Filing of Exhibits and Designation of Materials in Support of Respondent's Motion for Summary Judgment".

12. Kingdom Prairie Preserve was required to file any response to the DNR's motion for summary judgment, as well as any cross-motion for summary judgment, by September 1, 2005.

13. Kingdom Prairie Preserve has not filed a response to DNR's Motion for summary judgment, nor has it filed any cross-motion for summary judgment. Neither has Kingdom Prairie Preserve requested any extension of time to file its response or a cross-motion for summary judgment.

14. IC 14-22-31-3 controls the establishment of licensed shooting preserves:

[VOL. 10, PAGE 170]

A shooting preserve may not be established within a distance of five (5) miles of a state owned game refuge or state public hunting ground. Duck shooting may not be permitted if wild duck, geese, or other migratory birds frequent the area where the captive reared and properly marked mallard ducks are to be held, released, and flighted for shooting.

15. Kingdom Prairie Preserve was told by Brian Hultquist, Conservation Officer, that the location of the preserve could properly be approved because Kingdom Prairie Preserve was not going to release any ducks.

16. Kingdom Prairie Preserve applied for and was granted approval for licensed shooting preserves for 2003 and for 2004.

17. Subsequent to approval of the licensed shooting preserve in 2004, the DNR's Division of Fish and Wildlife began evaluating applications for adherence to statutory requirements.

18. When Kingdom Prairie Preserve applied for a renewal of its licenses in the spring of 2005, the DNR's Division of Fish and Wildlife reviewed the application and determined that the shooting preserves were located within five miles of a state public hunting ground, namesly the Winamac Fish and Wildlife Area.

19. On this basis, the DNR's Division of Fish and Wildlife denied renewal of the license application in a letter dated May 27, 2005.

20. Renewal of the license application sought by Kingdom Prairie Preserve would, on its face, appear to violate IC 14-22-31-3.

21. Kingdom Prairie Preserve offers no evidence, and none appears in the record, to establish a material issue of fact in dispute under IC 4-21.5-3-23 or Trial Rule 56.

22. The DNR is entitled to summary judgment in its favor and against Kingdom Prairie Preserve. Denial of the renewal of the license application to operate a shooting preserve at the site in question must properly be affirmed.