CADDNAR

[CITE: Galbreath v. Griffith, 11 CADDNAR 224 (2007)]

 

[VOLUME 11, PAGE 224]

 

Cause #07-122W

Caption: Galbreath v. Griffith

Administrative Law Judge: Lucas

Attorneys: Morrical; Yeakey

Date: December 27, 2007

 

 

Final Order of Summary Judgment

 

(1) A final order of summary judgment is entered and governs each of the following persons and matters:

 

(A) Thomas B. Galbreath and Julia L. Galbraith (the “Galbreaths”) with respect to their jointly owned real estate at Lot 16 ½ of Bell’s North Shore Place at Simonton Lake, which real estate is commonly known as 51218 North Shore Drive in Elkhart, Indiana (the “Galbreaths’ real estate”).

 

(B) Jack Griffith and Susan Griffith (the “Griffiths”) with respect to their jointly owned real estate at the northern portion of Lot 15 ¾ and at Lot 16 of Bell’s North Shore Place at Simonton Lake, which real estate is commonly known as 51224 North Shore Drive in Elkhart, Indiana (the “Griffiths’ real estate”).

 

(C) Any successor or assignee to the Galbreaths’ real estate or the Griffiths’ real estate.

 

(2) The Galbreaths shall retain an Indiana registered land surveyor to determine the approximate straight-line of the shoreline in the vicinity of the chisled “V” described in Finding 20.  The land surveyor shall then run a line from the chisled “V” into Simonton Lake, perpendicular to the straight-line of the shoreline, and shall place any appropriate monuments to identify the perpendicular line into the lake.  If feasible, the survey shall include G.P.S. coordinates for the chisled “V” and for at least one other identified point on the perpendicular straight-line into Simonton Lake.  These activities shall be performed consistently with IC 25-21.5 and 865 IAC.  By July 1, 2008, the Galbreaths shall fully compensate the land surveyor for activities under this section and shall file a copy of the completed survey with the Commission, as well as serve a copy of the survey upon the Griffiths.  The Commission retains jurisdiction over this proceeding until October 1, 2008 for the sole purpose of receiving motions or evidence from the Galbreaths or the Griffiths regarding compliance with this section.

 

(3) The Galbreaths must not place a pier, shore station, auger-type lift, flotation device, similar permanent structure, similar temporary structure, or moored boat in Simonton Lake outside the Galbreaths’ riparian zone or along the perpendicular straight-line described in section (2) for dividing their riparian zone from the Griffiths’ riparian zone.

 

[VOLUME 11, PAGE 225]

 

(4) The Griffiths must not place a pier, shore station, auger-type lift, flotation device, similar permanent structure, similar temporary structure, or moored boat in Simonton Lake outside the Griffiths’ riparian zone or along the perpendicular straight-line described in section (2) for dividing their riparian zone from the Galbreaths’ riparian zone.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

1. Thomas B. Galbreath[1] and Julia L. Galbreath (the “Galbreaths”) jointly own real estate, consisting of Lot 16 ½ of Bell’s North Shore Place at Simonton Lake, and commonly known as 51218 North Shore Drive in Elkhart, Indiana (the “Galbreaths’ real estate”).

 

2. Jack Griffith[2] and Susan Griffith (the “Griffiths”) jointly own real estate, consisting of the northern portion of Lot 15 ¾ and of Lot 16 of Bell’s North Shore Place at Simonton Lake, and commonly known as 51224 North Shore Drive in Elkhart, Indiana (the “Griffiths’ real estate”).

 

3. The Galbreaths’ real estate and the Griffiths’ real estate are both located in Osolo Township, Elkhart County, Indiana, and they share a common boundary.  The southern boundary of the Galbreaths’ real estate is the northern boundary of the Griffiths’ real estate.  The common boundary runs generally west-to-east but is somewhat northwest-to-southeast.

 

4. The Galbreaths’ real estate and the Griffiths’ real estate both border Simonton Lake, and, as such, both the Galbreaths and the Griffiths enjoy riparian ownership along Simonton Lake.

 

5. Simonton Lake is a “public freshwater lake” and is subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 IAC 11-1 through 312 IAC 11-5 to assist with implementation of the Lakes Preservation Act.  A. Lusher v. DNR, 11 Caddnar 124 (2007); T. Lusher, Jr. v. DNR, 11 Caddnar 137 (2007); and, Maloney v. DNR, 6 Caddnar 7 (1990).[3]

 

[VOLUME 11, PAGE 226]

 

6. Thomas B. Galbreath initiated this proceeding on May 29, 2007 when he filed a “Request for Administrative Review” with the Commission to resolve a riparian rights dispute with Jack Griffith regarding the Galbreaths’ real estate and the Griffiths’ real estate.

 

7. The Department of Natural Resources (the “DNR”) is the agency which administers the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, including riparian rights disputes under IC 14-26-2-23(e).  The Commission is the “ultimate authority” for the DNR under IC 14-10-2-3.

 

8. The Commission provided notice to Jack Griffith of Thomas Galbreath’s “Request for Administrative Review”.  A prehearing conference was held on July 23, 2007 in which Thomas Galbreath was represented by his attorney, Beverly S. Peters; and, Jack Griffith was represented by his attorney, Matthew A. Yeakey.  Thomas Galbreath and Jack Griffith were also present in person.  During the prehearing conference, the parties agreed Julia A. Galbreath should be added as a party because she is joint owner of the Galbreaths’ real estate with Thomas Galbreath.  The parties agreed Susan Griffith should be added as a party because she is joint owner of the Griffiths’ real estate with Jack Griffith.  Julia A. Galbreath was ordered added as an additional Claimant, and Susan Griffith was ordered added as an additional Respondent.  The Galbreaths are the Claimants, and the Griffiths are the Respondents.  The Galbreaths and the Griffiths are collectively the “Parties”.

 

9. Also, during the prehearing conference, the opportunity to seek mediation under the Lakes Preservation Act and IC 4-21.5 (the “Administrative Orders and Procedures Act” or “AOPA”) was discussed, but the parties agreed instead to seek a disposition upon motions for summary judgment.  The parties agreed and were then ordered to comply with a schedule for filing those motions.

 

10. By their attorney, the Griffiths timely filed the “Motion for Summary Judgment of Jack and Susan Griffith” on August 22, 2007.  By their attorney, the Galbreaths timely filed “Thomas B. Galbreth and Julie Galbreth’s Objections and Response to Motion for Summary Judgment of Jack and Susan Griffith” on September 21, 2007.  By their attorney, the Griffiths timely filed the “Reply of Jack and Susan Griffith to Objection and Response to Motion for Summary Judgment of Thomas B. Galbreth and Julie Galbreth”.

 

11. The Commission has jurisdiction over the subject matter and over the persons of the Parties.

 

[VOLUME 11, PAGE 227]

 

B. Prior Civil Litigation

 

12. R. Bruce Newswanger (“Newswanger”) was the former owner of the Griffiths’ real estate.  On August 29, 2002, Newswanger executed and delivered a warranty deed to the Griffiths at the closing of their purchase of what is now the Griffiths’ real estate.

 

13. The Griffiths are the successors in interest to Newswanger with respect to the Griffiths’ real estate.  The Griffiths enjoy the same riparian rights to the Griffiths’ real estate as Newswanger previously enjoyed.  The Griffiths also have the same limitations to riparian rights as previously applied to Newswanger.

 

14.  Before transfer of the warranty deed to the Griffiths’ real estate from Newswanger to the Griffiths, Newswanger and Thomas Galbreath litigated their respective riparian ownerships in the Elkhart Superior Court, Division No. 1 (“Elkhart Superior Court 1”). 

 

15. Beginning on page 7 of the “Motion for Summary Judgment of Jack and Susan Griffith”, they contended the dispositions by Elkhart Superior Court 1 of this litigation is entitled to res judicata effect.

 

“The doctrine of res judicata bars litigation of a claim after a final judgment has been rendered in a prior action involving the same claim between the same parties or their privies.”  Small v. Centocor, Inc., 731 N.E.2d 22 at 26 (Ind. Ct. App. 2000), citing Indiana Insurance Company v. American Community Services, Inc., 718 N.E.2d 1147, 1155 (Ind. Ct. App. 1999).  “The principle behind this doctrine, as well as the doctrine of collateral estoppel, is the prevention of repetitive litigation of the same dispute.”  Id.  As explained by the Small Court, “the following four requirements must be satisfied for a claim to be precluded under the doctrine of res judicata:

 

1.) The former judgment must have been rendered by a court of competent jurisdiction;

 

2.) The former judgment must have been rendered on the merits;

 

3.) The matter now at issue was or, could have been, determined in the prior action; and

 

4.) The controversy adjudicated in the former action must have been between the parties to the present suit or their privies.”  Id. 

 

The Griffiths urge these requirements are satisfied in the instant proceeding.

 

16. On page 5 of “Thomas B. Galbreth and Julie Galbreth’s Objection and Response to Motion for Summary Judgment of Jack and Susan Griffith”, they agree the prior orders of Elkhart Superior Court 1 “should be followed”.  They contend, however, that in applying these orders, “there are two issues of material fact.  The first, is the fact that Mr. Griffith has changed the length and location of his pier and is now encroaching on Galbreth’s riparian rights and secondly, the factual application of where the riparian dividing line is physically located.”

 

[VOLUME 11, PAGE 228]

 

17. Aspects of the litigation between Newswanger and Thomas Galbreath are outside the Commission’s jurisdiction under the Lakes Preservation Act.  For examples, there were claims relating to personal harassment and nuisance or to activities landward of the shoreline or water line of Simonton Lake.[4]  These are not further considered in the instant proceeding.  Such claims are within the exclusive province of a civil court.  The orders of Elkhart Superior Court 1 determining the respective riparian ownerships of Newswanger and Thomas Galbreath within Simonton Lake are, however, res judicata here as to the Griffiths and the Galbreaths.

 

18. In particular, Elkhart Superior Court 1 entered “Findings of Fact and Conclusions of Law” on August 5, 2002 in Cause No. 20D01-0011-PO-00114.  The Conclusions of Law provide, with references converted to the parties in the instant proceeding to support clarity, in pertinent part:

 

   A) The Court notes Indiana Code 14-26-2-4, shoreline or water line defined means:

1) If the water level has been legally established, the line formed on the bank or shore by the water surface at the legally established average normal level,

2) If the water level has not been legally established, the line formed by the water surface at the average level as determined by:

   a) Existing water level record or

   b) If water level records are not available, the action of the water that is marked upon the soil of the bed of the lake a character distinct from that of the bank with respect to vegetation as well as nature of the soil.

   B) Riparian right is defined as the right of one owning riparian land to have access to and use of the shore and water;

1) Of or relating to or living or located on the bank of a watercourse or sometimes a lake.

2) One that lives or has property on the bank of a river.

   C) Indiana Code 14-26-2-23 defines freshwater lake as:

1) Public freshwater lake means a lake that has been used by the public with the acquiescence of a riparian owner.

….

   F) In referring to Petitioner’s Exhibit 1, the survey report,[5] the Court notes that there are actually two lines which must be considered.  The first is the meander

 

[VOLUME 11, PAGE 229]

 

line of Simonton lake.  The second would be the seawall or shoreline at the water’s edge.[6]  For purposes of this order, the Court will continue to use the seawall or water’s edge for purposes of establishing dimensions of property.  The [Griffiths’] property line at the water’s edge consisting of a cement seawall is 67.47 feet.  The [Galbreaths’] shoreline is approximately 42 feet according to the survey.

   G) For purposes of defining the riparian rights of each the [Griffiths] and the [Galbreaths], the Court now sets the dimensions of the property extending straight out from the seawall at the point determined in the survey.  The [Griffiths’] extension shall be 67.47 feet at its widest point in the lake.  The [Galbreaths’] extension shall be 42 feet at its widest extension in the lake.  Said offshore boundary shall extend into the lake in a perpendicular to the shore where the shoreline is approximately a straight line.  The Court adopts the reasonableness test to determine how far out the respective piers, mooring devices, boat lifts, augers, weighted boat stations, or flotation equipment can be located.

   H) Indiana law allows a riparian owner to build “piers, wharves, docks, or harbors in aid of navigation and commerce” on the riparian owner’s premises or upon the submerged lands beneath the waters thereof.  In Indiana’s freshwater lakes, the riparian owners may build a pier with the extension of their shore boundaries only so far out as not to interfere with the use of the lake by others.  It is well settled and acknowledged in Indiana that boundaries of riparian property are not to extend to the middle of the lake.  Stoner versus Rice 22 N.E.2d 968 (1889).

   I) Installation of a pier by a riparian owner is a reasonable use under Indiana Code 13-2-4-5[7] so long as it does not interfere with the use of the lake by others.  The extension of a pier any distance into a lake is to permit boat owners to moor or launch their boats in areas of navigable water.  The reasonableness test will consider such factors as normal lake level, number of riparian owners on any one tract, and the purpose of the pier.

….

   Q) [Galbreaths] shall not cause to be placed any permanent or temporary structure, pier, shore station, auger-type lift, flotation device in the water along the perpendicular line as defined by the Court establishing the riparian rights of [the Griffiths] and [the Galbreaths].

….

 

[VOLUME 11, PAGE 230]

 

19. Reference to the survey reveals the Griffiths’ real estate and the Galbreaths’ real estate are both quadrangles, but neither is a rectangle or parallelogram.  Their common boundary is 308.92’ long, but the southern boundary of the Griffith’s real estate is 295.03’ long and the northern boundary of the Galbreaths’ real estate is 267.85’ long.  The irregular shapes of the two properties are, in practical terms, aggravated by the curved shoreline or water line of Simonton Lake.  The western boundary of the Griffiths’ real estate was measured as 43.34’, its intermediate width at the meander line as 68.32’, and its more easterly measurement at the shoreline as 67.47’.  The western boundary of the Galbreaths’ real estate was measured as 30.05’, its intermediate width at the meander line as 42.40’, and its more easterly measurement at the shoreline as 42’.

 

20. The survey identifies that a monument to the parties’ common boundary, at its point of intersection with the shoreline or water line of Simonton Lake, is a “chisled ‘V’ cut at edge of [concrete] seawall 0.1’ in from end of seawall.”

 

21. Elkhart Superior Court 1 has adjudicated the boundary between the riparian zones of the Griffiths and the Galbreaths as extending “into the lake in a perpendicular to the shore where the shoreline is approximately a straight line.”  Conclusion of Law G.  “[Galbreaths] shall not cause to be placed any permanent or temporary structure, pier, shore station, auger-type lift, flotation device in the water along the perpendicular line as defined by the Court establishing the riparian rights of [the Griffiths] and [the Galbreaths].”  Conclusion of Law Q.

 

 

C. Commission Role in Determining Riparian Zones within Public Freshwater Lakes and Application to These Facts

 

22. With amendments made to the Lakes Preservation Act beginning in 2000, the Commission was assigned an integral role in resolving disputes among riparian owners or between the DNR and a riparian owner.  IC 14-26-2-23(e)(3).

 

23. The DNR is the regulatory authority responsible for protecting the public trust established by the Lakes Preservation Act and particularly at IC 14-26-2-5.  As provided in IC 14-26-2-5(d), “The state: (1) has full power and control of all public freshwater lakes in Indiana both meandered and unmeandered; and (2) holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.”

 

24. Fishing and boating are among the “recreational purposes’ referenced in the Lakes Preservation Act.  IC 14-26-2-5(b).  The DNR’s responsibilities for boating, or what is sometimes referred to more universally as “navigation”, were underlined by P.L.152-2006, SEC.3.  This amendment added IC 14-26-2-23(c)(4) providing for coordination of the Lakes Preservation Act with IC 14-15 (sometimes referred to as the “Boating Code”).

 

24. Frequently, but not always, the DNR is a party to the resolution of riparian rights within public freshwater lakes.  A DNR license is required to place structures in a public freshwater lake (IC 14-26-2-23(a)(1)), although the Commission may adopt rules to exempt or reduce the regulatory burden for structures determined unlikely to pose more than a minimal potential for harm to the public trust.  IC 14-26-2-23(d)(2).  The Commission has authorized the placement of most temporary piers through a general license.  See, particularly, 312 IAC 11-3-1. 

 

[VOLUME 11, PAGE 231]

 

25. Where the DNR is not a party, the interests of the DNR cannot be adjudicated.  The DNR was not a party in the civil litigation before Elkhart Superior Court 1 in Cause No. 20D01-0011-PO-00114.  The instant administrative proceeding does not result from a determination that either of the Parties is disqualified from a general license under 312 IAC 11-3-1 nor does it result from a request by either of the parties for an individual license.  Neither of the Parties has sought to join the DNR as an additional party.  The DNR is not a party to the instant administrative proceeding. 

 

26. The scope of the Commission’s review in this proceeding is essentially limited to the following:

 

(1) Identifying the appropriate riparian boundary between the Griffiths’ real estate and the Galbreaths’ real estate.

 

(2) Entering an order as to activities by the Griffiths and Galbreaths (which can also bind their successors or assigns) in relation to the riparian boundary.

 

27. In exercising the review, the Commission must accord proper res judicata effect to the Conclusions of Law by Elkhart Superior Court 1 as discussed in Finding 18 through Finding 21.

 

28. The delineation of riparian boundaries within a lake may require a professional survey and the application of legal principles.   Havel & Stickelmeyer v. Fisher, et al., 11 Caddnar 110, 116 (2007) citing M. Anne French v. Abad, et al., and DNR, 9 Caddnar 176 (2004).

 

29. The Indiana Court of Appeals in Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984) adopted Wisconsin law as set forth in Nosek v. Stryker, 309 N.W.2d 868 for the proposition that where a shoreline approximates a straight line, and where the onshore property boundaries are approximately perpendicular to the shore, the riparian boundaries are determined by extending the onshore boundaries.  Rufenbarger v. Lowe, 9 Caddnar 150, 152 (2004).  Upon the facts, the Court of Appeals in Bath applied the first tier of a three-tier approach described in Nosek.

 

30. Where property lines intersect the shoreline or water line at obtuse or acute angles, the first-tier approach is not appropriate.  Instead, under the second-tier approach, “the division lines should be drawn in a straight line at a right angle to the shoreline without respect to the shoreline boundaries.”  Nosek at p. 871.

 

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31. As reflected in Finding 21, Elkhart Superior Court 1 applied the second-tier approach of Nosek.  The irregular quadrangles formed by the Griffiths’ real estate and by the Galbreath’s real estate result in obtuse and acute angles at their boundaries’ intersections with the shoreline.  The Court’s application of the second-tier approach is consistent with Nosek.

 

32. The survey does not depict the line determined by Elkhart Superior Court 1 and described in Finding 21, but rather the survey depicts an extension of the common boundary between the Griffiths’ real estate and the Galbreaths’ real estate.  The survey depicts a line that is consistent with the first-tier approach, but the line is inconsistent with the second-tier approach.  If the Elkhart Superior Court had intended to adopt the first-tier approach and endorse the in-lake riparian line as depicted on the survey, the Court would have described the line as “extending onshore property division lines into the lake.”  Bath at p. 870.

 

33. To properly identify the line described in Finding 21, an Indiana registered land surveyor would determine the approximate straight-line of the shoreline, in the vicinity of the chisled “V” described in Finding 20, and then run a line from the monument and perpendicular to the shoreline into Simonton Lake.  As the Claimants, the Galbreaths should bear the expense of employing a land surveyor to perform all appropriate actions for determining this line and for causing the placement of any monuments consistently with IC 25-21.5 and 865 IAC.

 

34. The restriction directed to the Galbreaths regarding the placement of structures, as described in Conclusion of Law Q and set forth here in Finding 18, is entitled to res judicata effect.  A reciprocal restriction should be applied to the Griffiths with respect to the riparian area of the Galbreaths.

 

35. In addition, the Commission has consistently determined that usage by one riparian owner of a neighbor’s riparian area “to permanently moor a boat” would violate the Lakes Preservation Act.  “A usage of this nature would unreasonably interfere with [the neighbors’] riparian rights.”  Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23, 27 (2005) citing Piering v. Ryan and Caso, 9 Caddnar 123 (2003) and W. Mich. Dock v. Lakeland Inv., 534 N.W.2d 212 (Mich. App. 1995).  The restrictions described in Finding 34 should also prohibit the permanent mooring of a boat within the riparian zone of the other.

 

36. Neither the Griffiths nor the Galbreaths should place a pier, shore station, auger-type lift, flotation device, other similar permanent or temporary structure, or moor a boat in Simonton Lake outside or along[8] their respective riparian zones.

 

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37. Elkhart Superior Court 1 applied the reasonableness test to determine how far out the respective piers, mooring devices, boat lifts, augers, weighted boat stations, or flotation equipment can be located.  Conclusion of Law G as set forth here in Finding 18.

 

38. In the “Reply of Jack and Susan Griffith to Objection and Response to Motion for Summary Judgment of Thomas B. Galbreth and Julie Galbreth”, the Griffiths contend Elkhart Superior Court 1 “did not adopt the straight line extending out at the property line separating the Galbreths’ and Griffiths’ properties”, because had it done so, the Galbreaths would not have been found in contempt.  This argument is unpersuasive.  First, any application of Bath and Nosek results in a “straight line” to divide the riparian zones of neighbors.  The question is not whether the line is straight but rather at what angle to place a straight line.  The Elkhart Superior Court twice identified the angle as a “perpendicular” to the shoreline and never as an extension of the angle formed by the property line at its intersection with the shoreline.  Second, application of either a perpendicular line or an extended property line would appear to have properly mandated relocation of the Galbreaths’ pier as it was depicted in the survey.  The Galbreaths’ pier seems likely to intersect an extended perpendicular line, but even if it does not, the Galbreaths’ pier would have been “along the perpendicular line”.[9]  

 

39. In Finding 16, the Galbreaths urge that “Mr. Griffith has changed the length and location of his pier and is now encroaching on Galbreth’s riparian rights”.  If the alleged grievance is that the Griffiths have crossed the line separating the Parties’ riparian zones, the grievance is addressed.  See, particularly, Finding 34 through Finding 36.  If the alleged grievance is that the Griffiths’ pier extends an excessive length into Simonton Lake, so as to adversely affect the public trust, the Galbreaths lack standing to complain.  In setting forth the “reasonableness” test, the Court of Appeals of Indiana determined the State through the DNR has exclusive authority to determine whether a structure would “encroach on public rights in the waters of” a public freshwater lake.  Zapffe v. Srbeny, 587 N.E.2d 177, 181 (Ind. App. 1992).

 

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D. Summary Judgment

 

40. 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
(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.

 

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(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.

 

41. 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.

 

42. 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).

 

43. “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).

 

44. The Parties have provided multiple affidavits, but the affidavits are generally outside the jurisdiction of the Commission.  The facts are not “material” to the Commission (although they might be “material” in an action before Elkhart Superior Court 1 to enforce its prior orders).  They are not “genuine” because identifying the conduct of the Parties and their friends is unnecessary either to determining the boundary between the Parties’ riparian zones or to entering an order for activities by the Griffiths and Galbreaths in relation to the riparian boundary.

 

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45. Delineation of the boundary between riparian zones could arise as an element of a licensure action under IC 4-21.5-3-5(a)(1).  Where the delineation of a boundary between riparian zones arises independently of licensure, the resulting proceeding is a “determination of status” under IC 4-21.5-3-5(a)(5).  The delineation of the boundary between the riparian zones of the Parties is a determination of status, but even if part of a licensure action, would not constitute an enforcement action.  Enforcement actions under AOPA are primarily those in IC 4-21.5-3-6 and IC 4-21.5-3-8.  Typically, only the DNR can initiate AOPA enforcement under the Lakes Preservation Act.  The Lakes Preservation Act also authorizes DNR enforcement through a civil court.  IC 14-26-2-19 and IC 14-26-2-20.  A private party may seek the DNR’s assistance in an AOPA action or in a civil action, or, in the alternative, may seek enforcement through a county prosecutor, as a Class C infraction, for a violation of the Lakes Preservation Act.  IC 14-26-2-21.  A final adjudication may also form the basis for a private civil action. 

 

46. Conduct by a party, an opposing party, or their respective friends is not material on summary judgment for delineating the in-lake boundary between riparian zones.  Neither is bad conduct a genuine issue on summary judgment since the truth or falsity of statements concerning the conduct is unnecessary to determining the boundary.  Bad conduct may be relevant to determining whether there is a violation of a final administrative order, but there is no final administrative order until approved by the Commission.  A purpose of the instant proceeding is to achieve a final administrative order. 

 

47. Within the scope of the Commission’s jurisdiction, and giving proper res judicata effect to the referenced civil cause in the Elkhart Superior Court 1, there is no genuine issue of material fact.  The instant administrative proceeding is ripe for a final adjudication as to the Galbreaths, and as to the Griffiths, consistent with the foregoing Findings.

 

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