[CITE: Roebel, et al. v. Vorndran, et al., 11
CADDNAR 250 (2008)]
[VOLUME 11, PAGE 250]
Cause #07-030W
Caption: Roebel, et
al. v. Vorndran, et al.
Administrative Law
Judge: Lucas
Attorneys: Federoff
(Claimants); Grogg (Respondents)
Date: February 1, 2008
[NOTE: ON FEBRUARY
29, 2008, RESPONDENTS VORNDRAN FILED FOR JUDICIAL REVIEW IN THE STEUBEN
SUPERIOR COURT (76D01-0802-MI-0076). ON APRIL 3, 2009, THE STEUBEN SUPERIOR COURT AFFIRMED THE "FINAL NRC JUDGMENT ... IN ITS ENTIRETY". SEE COURT ORDER.]
FINAL ORDER OF
SUMMARY JUDGMENT
There is no genuine
issue of material fact as to any of the following matters, and a final order of
summary judgment is granted under I.C.
§ 4-21.5-3-31 and 312 I.A.C. § 3-1-10:
(1) The Consent
Declaratory Judgment is a final order of the Natural Resources Commission that
was duly executed and issued. Proper
notice of the Consent Declaratory Judgment was provided to the Claimants and to
the Respondents, as well as to the Department of Natural Resources and other
parties to Administrative Cause Number 04-099W.
The order is subject to I.C.
§ 4-21.5. A proper basis has not been presented under I.C. § 4-21.5 to set aside the Consent Declaratory Judgment. In addition, the effort by the Respondents to
set aside the Consent Declaratory Judgment is a legally impermissible
collateral attack on the final order.
Only the Department of Natural Resources has legal authority under I.C. § 4-21.5 to take action to revoke the license for the group pier that is
described in the Consent Declaratory Judgment.
(2) The Memorandum
of Understanding is a private agreement between the Claimants and the
Respondents and is not generally subject to the authority of the Department of
Natural Resources or the Natural Resources Commission. The Claimants and the Respondents may
properly seek a disposition of the Memorandum of Understanding through a civil
court.
(3) With the failure
by the Claimants and the Respondents to achieve a settlement through mediation,
this proceeding is remanded to the DNR for an initial determination under I.C. § 14-26-2-23(e)(3) and 312 I.A.C.
§ 11-1-3 concerning licensure of
the Respondents’ pier. Following
issuance of the initial determination, an aggrieved person may seek
administrative review by the Natural Resources Commission.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
[VOLUME 11, PAGE 251]
A. Statement of the
Case and Summary Judgment
1. This proceeding was initiated on February 2, 2007 when Jack E. Roebel, Suzanne L. Roebel, Ted D. Agness, Thomas L. Guthrie, Judith E. Guthrie and Logan D. Mays (the “Claimants”) filed their “Petition for Administrative Review” with the Natural Resources Commission (the “Commission”) to seek the location, size, and manner of use of a pier and boat lift by Paul T. Vorndran and Shirley A. Vorndran (the “Respondents”) for a site on Lake James, a “public freshwater lake” subject to Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”). On April 10, 2007, the Respondents filed their “Response to Petition for Administrative Review and Counterclaim”. On April 30, 2007, the Claimants filed an “Answer to Counterclaim”.
2. The Claimants and the Respondents agreed to and were ordered to comply with a schedule for the filing of summary motions and responses. Following time extensions to allow the parties to engage in settlement negotiations, including participation in an unsuccessful mediation session, the schedule was completed. On August 22, 2007, “The Vorndrans’ Motion for Summary Judgment” and “The Vorndrans’ Memorandum in Support of Their Motion for Summary Judgment” were filed. On October 26, 2007, the “Petitioners’ Memorandum in Opposition to Motion for Summary Judgment and, in the Alternative, Motion for Joinder of Parties Needed for Just Adjudication” was filed.
3. Adjudicatory proceedings before the Commission are governed by I.C. § 4-21.5 (sometimes referred to as
“AOPA”) and rules adopted by the Commission at 312 Ind. Admin. Code § 3-1 to assist with its implementation of
AOPA. The Commission appoints
administrative law judge to perform functions controlled by AOPA. I.C. §
14-10-2-2 and I.C. § 14-10-2-3. As provided
in I.C. § 4-21.5-3-32, an agency is required to index
final orders and may rely upon indexed orders as precedent. In 1988, the
Commission adopted Caddnar as the index of agency decisions anticipated in
AOPA.
4. I.C. § 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
[VOLUME 11, PAGE 252]
(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.
(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.
[VOLUME 11, PAGE 253]
5. As provided in
312 I.A.C. § 3-1-10, an 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 I.C. § 4-21.5-3-23, however, the latter would
control.
6. 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 (
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 (
B. Consent Declaratory Judgment
8. For consideration
is a “Consent Declaratory Judgment”, which was approved by the Claimants, the
Respondents, and other parties in another proceeding before the Commission (Roebel, et al. v. Department of Natural
Resources, et al.; Administrative Cause Number 04-099W), and which provides
in pertinent part:
Following
mediation conference conducted on September 29, 2004…and attended by the
parties and their attorneys, the parties have consented, as acknowledged by the
signatures of their attorneys hereon, to entry of a Quasi-Declaratory Judgment
by the Administrative Law Judge on behalf of the Natural Resources Commission
as follows:
IT IS
ORDERD, ADJUDGED AND DECLARED AS FOLLOWS:
1. That
the [Claimants] may erect from the lake shore of the common area South Bay
Condominiums into Lake James in Steuben County, Indiana, a pier for the purpose
of docking boats and other watercraft and related activities of the dimension
and configuration set forth on EXHIBIT A (subsequently referred to as “Exhibit
A”), which is attached hereto and made a part of this Declaratory Judgment.
2. That
on February 6, 2005, 312 IAC 11-2-11.5 defining a group pier and an amended 312
IAC 11-3-1 in which group piers are exempted from the general license for
temporary piers went into effect.
[VOLUME 11, PAGE 254]
3. That
the pier which is the subject matter of this Consent Declaratory Judgment and
described in Exhibit A is a group pier pursuant to 312 IAC 11-2-11.5 and 312
IAC 11-3-1 as amended and therefore requires a permit pursuant to those rules.
4. That
this Consent Declaratory Judgment shall serve as the [Claimants’] permit to
erect the pier as described in Exhibit A.
The
parties, by their attorneys and/or authorized representatives, approve the
foregoing Consent Declaratory Judgment as to both its content and form.
9. Exhibit A is as
follows:
[VOLUME 11, PAGE 255]
10. One of the
signatories to the Consent Declaratory Judgment, which was in addition to the
Claimants and the Respondents, was the Department of Natural Resources (the
“DNR”). At issue in the instant
proceeding and in Administrative Cause Number 04-099W is a riparian rights
dispute that is governed by the Lakes Preservation Act and by 312 I.A.C. § 3-1, rules adopted by the Commission to assist with implementation of
the Lakes Preservation Act. The DNR is
the licensing authority for the Lakes Preservation Act and 312 I.A.C. § 3-1. The Commission is the
“ultimate authority” for the DNR under AOPA.
I.C. § 14-10-2-3.
11. Following
approval by the parties, the administrative law judge “recommended for
adoption” the Consent Declaratory Judgment to the Commission for final approval. The Commission through its Secretary approved
the Consent Declaratory Judgment under authority granted under 312 I.A.C. § 3-1-9(e) on March 15, 2005.
12. On March 16,
2005, a “Notice of Final Order of the Natural Resources Commission” was sent to
the Claimants, the Respondents, the DNR and the other parties to Administrative
Cause Number 04-099W informing them as follows:
You are
notified the Natural Resources Commission has adopted the attached “Consent
Declaratory Judgment” as its final order.
The Commission is the ultimate authority, and the action is its final
determination. A person who wishes to
seek judicial review must file a petition for review in [an] appropriate court
within 30 days of this notice and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is
also governed by 312 IAC 3-1-18.
13. The period for
seeking judicial review of the Consent Declaratory Judgment expired on April
15, 2005. No one sought judicial
review. The time for seeking judicial
review of the Consent Declaratory Judgment has long since expired.
14. AOPA identifies
under I.C. § 4-21.5-3-31 the limited circumstances under
which an agency may modify a final order:
[VOLUME 11, PAGE 256]
(3)
the evidence could not, by due diligence, have been discovered and produced at
the hearing in the proceeding.
The rehearing may be limited to the issues directly affected by the newly
discovered evidence. If the rehearing is conducted by a person other than the ultimate authority, section 29
of this chapter applies to review of the order resulting from the rehearing.
(d) Clerical mistakes and other errors resulting from
oversight or omission in a final order or other part of the record of a
proceeding may be corrected by an ultimate authority or its designee on the
motion of any party or on the motion of the ultimate authority or its designee.
(e) An action of a petitioning party or an agency under
this section neither tolls the period in which a party may object to a second
agency under section 30 of this chapter nor tolls the period in which a party
may petition for judicial review under IC 4-21.5-5. However, if a
rehearing is granted under subsection (c), these periods are tolled and a new
period begins on the date that a new final order is served.
15. The record of this proceeding does not provide an appropriate basis, under I.C. § 4-21.5-3-31, for the modification of the Consent Declaratory Judgment.
16. The Respondents are not entitled to seek revocation of the underlying license supported by the Consent Declaratory Judgment. The licensing authority is the DNR. See particularly I.C. § 14-26-2-23(a).
17. AOPA provides for sanctions such as license revocations at I.C. § 4-21.5-3-6 and I.C. § 4-21.5-3-8. Unless statutory authority is specifically provided for the implementation of sanctions under I.C. § 4-21.5-3-6, the applicable provisions are those of I.C. § 4-21.5-3-8. As provided in pertinent part in I.C. § 4-21.5-3-8:
(a) An
agency may issue a sanction or terminate a legal right, duty, privilege,
immunity, or other legal interest….
(b) When
an agency seeks to issue an order that is described in subsection (a), the
agency shall serve a complaint upon:
(1) each
person to whom any resulting order will be specifically directed and
(2) any
other person required by law to be notified.
A person
notified under this subsection is not a party to the proceeding unless the
person against whom any resulting order will be specifically directed or the
person is designated by the agency as a party in the record of the proceeding.
18. The DNR and only the DNR may seek revocation of the license supported by the Consent Declaratory Judgment. Indeed, if the DNR determined to pursue a revocation of the Consent Declaratory Judgment, since the order would be specifically directed to the Claimants and not to the Respondents, the Respondents would be notified of the proceeding only if otherwise required by law. The Respondents would be a party to a revocation only if required by law.
[VOLUME 11, PAGE 257]
19. The same result would follow if I.C. § 4-21.5-3-6 would govern. As the licensing agency, only the DNR would be empowered to seek revocation of the Consent Declaratory Judgment. The Respondents could not initiate a revocation of the license, and, since the resulting revocation would not be specifically directed to them, would not even be notified unless otherwise required by law. See, particularly, I.C. § 4-21.5-3-6(b).
20. The Claimants contend the effort by the Respondents to set aside the Consent Declaratory Judgment is “an impermissible collateral attack…and must be rejected by the Commission.” As stated in the “Petitioners’ Memorandum in Opposition to Motion for Summary Judgment and, in the Alternative, Motion for Joinder of Parties Needed for Just Adjudication” at page 8:
“A
collateral attack on a judgment has been defined as a judicial proceeding
pursued to avoid, defeat, evade, or deny the validity and effect of a valid
judgment or decree.” City of
21. Generally, an agency has only those powers conferred on it by the Indiana General Assembly. Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995) cited by the Commission in Gosset v. Town of Albany and Department of Natural Resources, 9 Caddnar 174, 175 (2004).
22. The common law prohibition on impermissible collateral attacks is harmonious with the limitations set by the Indiana General Assembly, in I.C. § 4-21.5-3-31, for the modification of final agency orders. The Claimants’ assessment that no fraud is alleged by the Respondents is compelling, and there is no evidence of fraud in the record. Whether the Commission might properly set aside a final order where the final order is procured by fraud, despite the absence of an express legislative power to do so, is a question for another day.
23. There is no
genuine issue of material fact, and the Claimants are entitled to judgment as a
matter of law with respect to the validity of the Consent Declaratory
Judgment. The Respondents have
established no basis under AOPA by which the Commission may properly set aside
the Consent Declaratory Judgment. In
addition, the effort by the Respondents is an impermissible collateral attack
on the validity of the Consent Declaratory Judgment. In all aspects, the validity of the Consent
Declaratory Judgment is affirmed.
[VOLUME 11, PAGE 258]
C. Memorandum of Understanding
24. Also entered
into the record is a Memorandum of Understanding between the Claimants and the
Respondents which was entered by them in anticipation of the Consent
Declaratory Judgment. The Memorandum of
Understanding states in substantive part:
This
Memorandum of Understanding is made between the [Claimants] in the above
captioned action before the Indiana Natural Resources Commission [in
Administrative Cause No. 04-099W]…and certain Respondents thereto, Paul T.
Vorndran and Shirley Vorndran (“Vorndrans”)[1]. Following mediation conference for the
settlement of Petitioners’ [Claimants’ in the instant action] Petition for
Quasi-Declaratory Judgment pursuant to I.C. § 14-26-2-3 the Petitioners
[Claimants’ in Administrative Cause No. 07-030W] and the Vorndrans [Respondents
in Administrative Cause No. 07-030W] have reached the following mutual
understanding:
Vorndrans
have agreed not to object to the placement of Petitioner’s pier in the
configuration shown on Exhibit A, hereto,[2]
and also to Exhibit A to the Consent Declaratory Judgment of even date here
width [sic.].
The
Petitioners have agreed that they will not raise an objection with any
authority having jurisdiction in the matter to the placement by the Vorndrans
of a boat lift which is approximately 9’6” square, not including the canvas
cover, parallel to their pier, which extends from their property on Lake James,
on the side of the pier closest to Petitioners, with the lakeward end of the
lift to extend no further than the end of Vorndrans’ existing 70’ pier. The location of the pier and proposed boat
lift are shown on Exhibit B, hereto.
Petitioners further agree that the boat to be docked in boat slip
numbered 6 on Exhibit A may not exceed 15’ in length.
The
Vorndrans’ pier and Petitioners’ pier are to be installed with the Vorndran’s
pier located as shown on Exhibit B, to be located in relation to the shore as
during the 2004 boating season, and with Petitioner’s pier, as shown on Exhibit
A, to be located in the same location in relation to the shore as during the
2004 boating season.
The
Petitioners and the Vorndrans have entered into this Memorandum of
Understanding with the intent and understanding that the use and maintenance of
their respective piers in the configurations as described in this Memorandum
will allow all parties to use their respective piers in such a manner as to not
unreasonably interfere with the riparian rights of any party.
[VOLUME 11, PAGE 259]
25. The Memorandum
of Understanding was not referenced in the Consent Declaratory Judgment and was
not approved by all parties to Administrative Cause Number 04-099W. The Commission has neither approved nor
disapproved the Memorandum of Understanding.
The Memorandum of Understanding is a private agreement between the
Claimants and the Respondents.
26. If the Claimants and the Respondents wish to contest the viability of the Memorandum of Understanding, they may obtain a disposition by a civil court. Construction of a private agreement is outside the DNR’s ordinary purview.
27. Where
jurisdiction is conferred by the Lakes Preservation Act, however, the agency
may also determine other related claims and cross-claims among the parties,
including those derived from common law, based upon the “doctrine of primary
jurisdiction”.
28. The doctrine of
primary jurisdiction is an invention of the United States Supreme Court to
address the problem that arises when the courts and an agency both have claims
to jurisdiction in a case. Under the
doctrine, the judicial process may be suspended or await completion of the
administrative process, and the agency may review matters ordinarily outside
its subject matter jurisdiction, in order to develop a comprehensive record for
ultimate judicial review.
29. To the extent
that it bears upon riparian rights to be determined under the Lakes
Preservation Act, the agency might properly factor the Memorandum of
Understanding.
D. Claimants’ Petition Directed to Respondents’
Pier
30. The Claimants in
their “Petition for Administrative Review” seek the following relief from the
Commission:
1.
Determining that the location and configuration of the [Respondents’] Pier and
Lift during the 2006 boating season, interfered with [Claimants’] riparian
rights, infringed upon the [Claimants’] access to
2.
Determining that the location and configuration of the [Respondents’] Pier and
the Lift during the 2006 boating season, failed to meet the criteria for a
general license pursuant to 312 IAC 11-3-1 and prohibiting the [Respondents’]
Pier and the Lift in the same location and manner, or any other location and
manner which fails to comply with 312 IAC 11-3-1, or otherwise interferes with
the [Claimants’] riparian rights; and
3.
Providing all other just and proper relief.
[VOLUME 11, PAGE 260]
31. 312 I.A.C. § 11-3-1 describes the conditions under which a person qualifies for a general license for the placement of a pier or other temporary structure within a public freshwater lake. A pier which does not qualify for a general license under the rule is subject to the process for obtaining an individual license under the Lakes Preservation Act and 312 I.A.C. § 11.
32. The procedure for obtaining review following an unsuccessful mediation among riparian owners is set forth at 312 I.A.C. § 11-1-3:
(a) A riparian owner or the department may
initiate a proceeding under IC 4-21.5 and 312 IAC 3-1 to seek resolution by the
commission of a dispute among riparian owners, or between a riparian owner and
the department, concerning the usage of an area over, along, or within a
shoreline or waterline of a public freshwater lake.
(b) A party to a proceeding initiated under
subsection (a) may seek mediation of the dispute under IC 4-21.5. The administrative
law judge shall approve the use of mediation if the request is made by:
(1) a party within thirty (30) days of the
initiation of the proceeding;
(2) a party within thirty (30) days after a party is joined as
determined necessary for just adjudication or by agreement of the parties; or
(3) agreement of the parties.
(c) The administrative law judge may at any
time approve the use of mediation.
(d) If a good faith effort by the parties
to the mediation fails to achieve a settlement, the department shall make an
initial determination of the dispute, file the determination with the
administrative law judge, and serve it upon the parties. Within twenty (20)
days after filing the initial determination, a party may request that the
administrative law judge perform administrative review of the initial
determination.
(e) If a request for administrative review
is received under subsection (d), the administrative law judge shall seek a
final disposition of the proceeding as soon as is practicable.
Particular note is taken of subsection (d).
33. With the failure
by the mediation between the Claimants and the Respondents to achieve a
settlement, this proceeding must properly be remanded to the DNR for an initial
determination under 312 I.A.C. § 11-1-3.
This procedure is consistent with the legislative directive in I.C. § 14-26-2-23(e)(3).