CADDNAR

[CITE: Bergan v. DNR, 10 CADDNAR 384 (2006)]

 

[VOLUME 10, PAGE 384]

 

Cause #:05-203D
Caption: Bergan v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se; Boyko
Date: December 8, 2006

 

 

FINAL ORDER OF SUMMARY JUDGMENT

 

Summary judgment is granted in favor of the Department of Natural Resources and against Joe Bergan.  The license issued to Joe Bergan under IC 14-22-14 is revoked.  As a matter of law, the license cannot be reinstated.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

 

1.      On November 28, 2005, Joseph Anthony Bergan, Jr., also known as Joe Bergan, (“Bergan”) filed an email with the Natural Resources Commission (the “Commission”).  The email 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 email from Bergan 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.  Bergan and the DNR were timely notified of the prehearing conference.

 

4.      At Bergan’s request, the January 6 prehearing was continued and rescheduled for May 4, 2006 in Michigan City.

 

5.      By an email filed on April 26, 2006, the parties agreed to the following schedule instead of participating in a prehearing conference on May 4, 2006:

 

(1)    The parties would complete any discovery by August 7, 2006.

 

(2)    Either party was granted leave to file a motion for summary judgment by September 15, 2006.

 

[VOLUME 10, PAGE 385]

 

(3)    If a party filed a motion for summary judgment, the other party was provided until October 16, 2006 to file a response.

 

6.      In an email sent later on April 26, the administrative law judge approved, and then ordered the parties to comply with, their agreement concerning the scheduling of discovery and of summary judgment.

 

7.      IC 4-21.5-3-23 governs summary judgment under AOPA and 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

 

[VOLUME 10, PAGE 386]

 

(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.  Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co.., 560 N.E.2d 459 (Ind. App. 1990).

 

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 September 15, 2006, the “Respondent DNR’s Motion for Summary Judgment” and Memorandum of Law in Support of Motion for Summary Judgment” was timely filed.  “Respondent DNR’s Filing and Designation of Affidavits and Exhibits in Support of Motion for Summary Judgment Filed on September 15, 2006” was filed on September 18, 2006.

 

[VOLUME 10, PAGE 387]

 

12.  Bergan was required by October 16, 2006 to file any response to the DNR’s motion for summary judgment.

 

13.  Bergan has not filed a response to DNR’s motion for summary judgment.  Neither has Bergan requested any extension of time to file its response to the DNR’s motion for summary judgment.

 

14.  On October 31, 2006, the DNR filed its “Notice of Expiration of Deadlines” in which it urged that Bergan had not timely responded to the DNR’s motion for summary judgment.

 

15.  Bergan has not responded to the DNR’s “Notice of Expiration of Deadlines”.

 

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 (September 18, 2006) and IC 14-22-14-9.

 

17.  On January 18, 2006, Bergan filed an application to continue a reservation of his license under the Lake Michigan Commercial Fishing Act.  In the application, Bergan stated his current address was 18543 Lake Road, Pelkie, Michigan.  Lang Affidavit and attachment.

 

18.  Additional evidence that Bergan is not a resident of Indiana is provided by his responses to DNR interrogatories.  In Interrogatory No. 6 on page 6, Bergan was asked to provide the complete address and dates where he lived, other than at the address described in Finding 17, during a five-year period ending in 2006.  Bergan listed two addresses in Michigan and one in Florida.  In Interrogatory No. 8 on page 8, Bergan was asked to list each state where he filed income tax returns during the last five years, and Bergan responded Michigan, only.  In Interrogatory No. 9 on page 9, Bergan was asked to list each state where he had held a driver’s license during the last five years, and Bergan responded Michigan, only.  Respondent DNR’s Summary Exhibit No. 2.

 

19.  Additional evidence that Bergan is not a resident of Indiana is provided by a series of Michigan resident hunting and fishing licenses held by him since 1998.  Affidavit of Lt. Jerry Shepherd, DNR Division of Law Enforcement (September 12, 2006).

 

20.  IC 14-22-14-6 controls the eligibility of an individual 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….

 

[VOLUME 10, PAGE 388]

 

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 material facts as to the Bergan’s residency for the past five years are without controversy.  He was either a resident of Michigan or Florida, but he was not a resident of Indiana. 

 

23.  A knowing failure to maintain an Indiana residence provides a proper basis for license revocation under IC 14-22-14-26(a).  Vito Ernande d/b/a South Shore Fish Company v. DNR, 10 Caddnar 319 (2006).

 

24.  The determination by Joe Bergan to reside in Michigan or Florida is a failure to comply with the Lake Michigan Commercial Fishing Act that requires him to maintain an Indiana residence.  The failure appears to be knowing or intentional and provides a proper basis for license revocation under IC 14-22-14-26(a). 

 

25.  Bergan offered no documentation, and none appears in the record, to establish a material issue of fact in dispute under IC 4-21.5-3-23 or under Trial Rule 56.

 

26.  The license issued under the Lake Michigan Commercial Fishing Act to Joe Bergan should be revoked under IC 14-22-14-26(a).

 

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

 

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