CADDNAR

[CITE: South Shore Fish Company v. DNR, 10 CADDNAR 319 (2006)]

 

[VOLUME 10, PAGE 319]

 

Cause #:05-201D

Caption: South Shore Fish Company v. DNR

Administrative Law Judge: Lucas

Attorneys: Ernande, pro se; Boyko

Date: August 10, 2006

 

Final Order of Summary Judgment

 

Summary judgment is granted in favor of the Department of Natural Resources and against South Shore Fish Company.  The license issued to South Shore Fish Company under IC 14-22-14 is revoked.  This revocation also applies to any claim South Shore Fish Company, Inc.; Vito Ernande; Darlene Ernande; or Salvatore Ernandes may have in South Shore Fish Company.  As a matter of law, the license cannot be reinstated.

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

1.      On November 22, 2005, Vito Ernande, doing business as South Shore Fish Company, (“South Shore Fish. Co.”) 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 revoke the reservation of a commercial fishing license under IC 14-22-14 to take fish from the Indiana waters of Lake Michigan.  IC 14-22-14 is sometimes referred to as the “Lake Michigan Commercial Fishing Act”.

 

2.      The correspondence from South Shore Fish Co. 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.

 

3.      A prehearing conference was scheduled for January 6, 2006 at 100 West Water Street in Michigan City.  South Shore Fish Co. and the DNR were timely notified of the prehearing conference.

 

4.      The prehearing conference was conducted as scheduled on January 6, 2006.  Vito Ernande was present on behalf of South Shore Fish Co.  Ihor N. Boyko was the attorney for the DNR, and he was accompanied by Lt. Jerry Shepherd of the DNR’s Division of Law Enforcement.

 

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:

 

[VOLUME 10, PAGE 320]

 

 

(1)    The DNR shall serve and file any motion for summary judgment by April 3, 2006.

 

(2)    Shore Shore Fish Co. shall serve and file any response to the DNR’s motion and any cross-motion for summary judgment by June 5, 2006.

 

(3)    The DNR shall file any reply to the response and any response to a cross-motion by July 7, 2006.

 

6.      During the prehearing conference, 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.

 

[VOLUME 10, PAGE 321]

 

(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.

 

(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).

 

[VOLUME 10, PAGE 322]

 

11.  On April 3, 2006, the “Respondent DNR’s Motion for Summary Judgment” and “Respondent DNR’s Memorandum of Law in Support of Motion for Summary Judgment” were timely filed. 

 

12.  South Shore Fish Co. was required to file any response to the DNR’s motion for summary judgment, as well as any cross-motion for summary judgment, by June 5, 2006.

 

13.  South Shore Fish Co. has not filed a response to DNR’s motion for summary judgment, nor has it filed any cross-motion for summary judgment.  Neither has South Shore Fish Co. requested any extension of time to file its response or a cross-motion for summary judgment.

 

14.  On July 7, 2006, the DNR filed its “Notice of Expiration of Deadline” in which it urged that South Shore Fish Co. had not timely responded to the DNR’s motion for summary judgment.

 

15.  South Shore Fish Co. has not responded to the DNR’s “Notice of Expiration of Deadline”.

 

16.  On January 1, 1997, the State of Indiana indefinitely suspended commercial fishing for yellow perch in the Indiana waters of Lake Michigan due to a sharp decline in the population of this species.  As a consequence of the suspension, implementation of special licensing provisions allowed the holder of a license under the Lake Michigan Commercial Fishing Act to reserve a license for a reduced fee.  Affidavit of Randy Lang, DNR Fisheries Staff Specialist (April 3, 2006) and IC 14-22-14-9.

 

17.  On January 31, 2006, South Shore Fish Co. filed an application to continue a reservation of its license under the Lake Michigan Commercial Fishing Act.  In the application, Vito Ernande, Salvatore Ernandes and Darlene Ernande claimed the shareholder status, each of whom owned 33% of the shares, in an Indiana corporation known as South Shore Fish Co.  Lang Affidavit.

 

18.  IC 14-22-14-6 controls the eligibility of a person to hold a license under the Lake Michigan Commercial Fishing Act:

To be eligible to hold a commercial fishing license, the following conditions must be met:

(1) If the person is not a corporation, all individuals comprising the person must be residents of Indiana.

(2) If the person is a corporation, the corporation must be an Indiana corporation and all shareholders in the corporation must be residents of Indiana.

 

19.  The Indiana Secretary of State has certified that “South Shore Fish Company, Inc.” was incorporated in Indiana on January 24, 1991 and was administratively dissolved on November 12, 1993 for not staying current on their business entity reports.  At the time of dissolution, the registered agent and only principal officer listed was Vito J. Ernande with the registered agent’s address being at 5604 Tulip Street, Portage, Indiana.  Respondent DNR’s Summary Judgment Exhibit No. 6.

 

[VOLUME 10, PAGE 323]

 

20.  The record is devoid of evidence that there exists a “South Shore Fish Co.” which is active and incorporated in Indiana.  If “South Shore Fish Co.” is the same entity as “South Shore Fish Company, Inc.”, the corporation has been dissolved and so does not qualify for eligibility under IC 14-22-14-6(2).

 

21.  As applicable to the Lake Michigan Commercial Fishing Act, “resident” means an individual who resides in Indiana and has continuously resided within Indiana for 60 consecutive days immediately preceding the date of application for a license or permit.  “The term excludes all other individuals.”  IC 14-8-2-242(a).

 

22.  The application described in Finding 17 evidences that Vito Ernande and Darlene Ernande are individuals who are not residents of Indiana but instead are both residents of 401 Woodside, Vermillion, Ohio. 

 

23.  In addition, Lieutenant Bryant Lucas of DNR’s Division of Law Enforcement investigated the residency of Vito Ernande.  Based upon Vito Ernande’s driver’s license, vehicle ownership information, and an application to the Ohio Department of Natural Resources for a commercial fish wholesale permit, he determined Vito Ernande is a resident of Ohio and not of Indiana.  Affidavit of Lt. Bryant Lucas, DNR Division of Law Enforcement (March 31, 2006).

 

24.  Even if South Shore Fish Co. were an active corporation, the company would not qualify for eligibility under IC 14-22-14-6(2) because two of its three shareholders are individuals who are not residents of Indiana.

 

25.  If not a corporation, pursuant to IC 14-22-14-6(1) South Shore Fish Co. similarly does not qualify for a Lake Michigan Commercial Fishing Act license because two of the three individuals who claim a proprietary interest are not residents of Indiana.

 

26.  The determination by Vito Ernande and Darlene Ernande to change their residence from Indiana to Ohio is a failure to comply with the Lake Michigan Commercial Fishing Act that appears to be knowing or intentional and grounds for license revocation under IC 14-22-14-26(a).

 

27.  South Shore Fish Co. 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.

 

28.  The license issued under the Lake Michigan Commercial Fishing Act to South Shore Fish Co. should be revoked under IC 14-22-14-26(a).

 

29.  Pursuant to IC 14-22-14-26(b), a license revoked under IC 14-22-14-26 cannot be reinstated.

 

30.  The DNR is entitled to summary judgment in its favor and against South Shore Fish Co.  The license issued by the DNR to South Shore Fish Co., under the Lake Michigan Commercial Fishing Act, should be revoked and cannot be reinstated.