CADDNAR

 

[CITE: Thomas v. DNR, 14 CADDNAR 116 (2016)]

 

[VOLUME 14, PAGE 116]

 

 

Cause#: 16-008P

Caption: Thomas v. DNR

Administrative Law Judge: Wilson

Attorneys: pro se (Thomas); Harcourt/Wooding (DNR)

Date: October 6, 2016

 

 

FINAL ORDER

 

The Department’s Notification of Ejection from DNR Property issued to Thomas on December 15, 2015, is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Statement of the Proceeding and Jurisdiction

 

1.     On January 6, 2016, Michael Thomas (“Thomas”) filed correspondence with the Natural Resources Commission (“Commission”) Division of Hearings stating in part: “On the 19^th of December, 2015 a DNR officer with the Tippecanoe DNR, located in Battle Ground Indiana, evicted me from Wolf Park for unfounded reasons of dumping trash in the park.….I am innocent and I supported the park by buying memberships and appreciate the services you offer….”[1]

 

2.     The correspondence initiated a proceeding governed by Indiana Code (“IC”) 4-21.5-3, commonly referred to as the “Administrative Orders and Procedures Act” (“AOPA”), and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.

 

3.     Administrative Law Judge (“ALJ”) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding and she considered the Thomas correspondence as a petition for administrative review under AOPA and 312 IAC 3-1.

 

4.     On January 20, 2016, Edward Harcourt and Sean Wooding filed an Appearance in this proceeding stating that Edward Harcourt would be the lead counsel for the Department of Natural Resources (“Department”).

 

5.     ALJ Wilson set a Prehearing Conference in this case to be heard on February 2, 2016. ALJ Wilson granted a motion to continue the Prehearing Conference to February 16, 2016. On February 16, 2016, following the service of notice on Thomas and the Department, the ALJ held a telephonic Prehearing Conference from the offices of the Commission’s Division of Hearings in Indianapolis, Indiana. During the Prehearing Conference, the ALJ provided select legal advisories to the parties applicable to the proceeding and the parties agreed to discuss the disputed issues beyond the presence of the ALJ in a separate meeting. A Status Conference was set to be heard on April 12, 2016.

 

6.     On April 12, 2016, a Status Conference was held in the offices of the Commission’s Division of Hearings with all parties participating. The Department reported that it had responded to a discovery request submitted by Thomas. Thomas reported his intent to call no witnesses. Final witness and exhibit lists were ordered to be filed and served on the other party on or before April 26, 2016. Also during the Status Conference, a Final Status Conference was set to be heard on May 17, 2016, and a Hearing was set for June 17, 2016. The dates and times discussed were detailed in the “Report from Final Status Conference and Notice of Final Status Conference and Hearing”, issued on April 12, 2016.

 

7.     The Department filed “Respondent’s Final Witness and Exhibit List” on April 22, 2016. Thomas filed no Witness and Exhibit List.

 

8.     On May 2, 2016, the Department filed a motion to continue the Hearing date and the ALJ granted the Department’s motion.

 

9.     On May 17, 2016, the ALJ issued a “Notice of Proposed Dismissal” due to a failure by Thomas to appear for the Final Status Conference.

 

10.   On May 26, 2016, by facsimile, Thomas submitted a handwritten “NOTICE: Hearing Reset & Motion to dismiss” asserting the following request “Please do not dismiss this unless you are dismissing the accusations and park ejection….” In addition, the correspondence included a “Motion to Dismiss.”

 

11.   On June 6, 2016, ALJ Wilson set aside the proposed dismissal and reset the Final Status Conference for June 22, 2016. The Department and Thomas participated in the Final Status Conference at the Commission’s Division of Hearings office. Thomas orally withdrew his motion to dismiss the proceeding. In addition, the Department, by Attorney Harcourt, requested a correction to the Thomas petition for administrative review to correctly identify the park from which Thomas was ejected. Thomas requested an opportunity to orally amend his petition to correctly identify Prophetstown State Park as the park from which he was ejected. The ALJ granted the Thomas request and the petition was deemed orally amended to reflect Thomas’ ejection from Prophetstown State Park (“Prophetstown”). The parties agreed to August 17, 2016, as a date for the Administrative Hearing. Upon a request by Thomas, the Hearing was not scheduled at a location in Indianapolis.

 

12.  On August 17, 2016, following service of notice, the Administrative Hearing was heard at the Indiana Veterans’ Home in West Lafayette, Indiana. Thomas attended, self-represented. The Department attended by its Conservation Officer, Corporal Todd Pekny; Prophetstown Assistant Property Manager, Kile Westerman; and by counsel, Edward Harcourt and Sean Wooding.

 

13.  A duty of the Department is to “have the custody and maintain the parks, preserves, forests, reservoirs, and memorials owned by the state.”  IC 14-19-1-1(1)

 

14.  To assist with the implementation of the Department’s duty, the Commission adopted rules at 312 IAC 8 that govern the use of DNR Property. “DNR Property” is defined at 312 IAC 8-1.5-6 and includes State parks owned or property managed by the Department.

 

15.  The Commission is the “ultimate authority” under the Administrative Orders and Procedures Act (“AOPA”) over the subject matter of a petition for administrative review of a Department ejection.  312 IAC 3-1-2, Jackson v DNR, 13 CADDNAR 53 (2012) and Colton Lambermont v. DNR, 12 CADDNAR 215 (2010). 

 

16.  The Commission possesses jurisdiction over the subject matter and the persons of the parties.

 

 

[VOLUME 14, PAGE 117]

 

 

Findings of Fact[2]

 

17.  At the time of the administrative hearing, Kile Westerman (“Westerman”) had been the Assistant Property Manager for Prophetstown for nearly two and one-half years. Prior to his position with the Department, he worked for USDA Wildlife Services. In his position with the Department, he is charged with duties related to park operations, resource management, hiring and training of seasonal employees, patrolling the park, customer service and weekend conflict management. Due to his position, he resides within the State owned property known as Prophetstown. He works a regular shift and also assists with park operations during hours that are not a part of his regular shift. See testimony of Westerman.[3]

 

18.  A “new road”, formerly the entrance to Prophetstown, veers off of Swisher Road. The new road is not a part of Swisher road. Westerman identified the new road as a “State road” based on his knowledge that the road is on State owned property. See testimony of Westerman.

 

19.  On the evening of December 15, 2015, Westerman visited and inspected the “new road.” At that time, he observed no dumped trash. See testimony of Westerman.

 

20.  On December 16, 2015, on or about 4:00 pm, as a part of his duties, after he concluded his regular shift within Prophetstown’s normal operation hours, Westerman again inspected the “new road” and the road’s new coat of asphalt. See testimony of Westerman.

 

21.  On December 16, 2015, Westerman crested a small hill and saw “nearly a metric ton of trash” dumped off of the new road in a field next to the road. Westerman testified that he had never before seen dumped trash of this magnitude. See testimony of Westerman and Exhibit 2-A through 2E.

 

22.  Westerman and other park staff are diligent in keeping the park clean and he finds the dumping of trash in a State park to be unacceptable. See testimony of Westerman.

 

23.  The dump site was beyond a small incline that prevented a view of the dump site from Swisher Road. See testimony of Westerman.

 

24.  Upon seeing the dumped trash, Westerman contacted Prophetstown’s Property Manager, whose home is directly behind the dump site. At that time, Westerman was aware that the Property Manager was not working on December 16, 2015. The Property Manager reported to Westerman that he had been home that day and did not see anyone dump the trash. Based on the information he received from the Property Manager, Westerman determined that the trash was most likely dumped during the night prior to his discovery of the dump site. See testimony of Westerman.

 

25.  Based on the evidence presented, including evidence that the new road was formerly designated as an entrance road to Prophetstown, that Westerman inspected the new road as a part of his duties as an Assistant Property Manager and Westerman’s testimony that the new road is State owned property, the new road is determined to be within the boundaries of the State Park known as Prophetstown.

 

26.  The trash was dumped between the evening of December 15, 2015, and approximately 4:00 p.m. on December 16, 2015.

 

27.  As Westerman evaluated the dump site, he determined through his practical experience with trailers that the trash had been in a trailer because of the way the tire tracks aligned. The tracks revealed to him that a towing vehicle backed up a trailer and got stuck. He observed tire tracts that made bigger ruts and identified those tracks to be from a powered vehicle that pulled the trailer out of the mud. The tire tracks revealed to him that the tread didn’t lose traction, indicating that the trailer was not under power of its own. He saw mud at the site and determined that the trailer was in the mud and that the vehicle threw mud as it accelerated out of the mud and left the field where the trash was dumped.  See testimony of Westerman.

 

28.  Tire tracks at the site of the dumped trash reveal that the trash was dumped from a trailer that was being pulled by a motorized vehicle.

 

29.  Westerman contacted the Department’s law enforcement office and reported the dumped trash. In that the new road was closed to the public, he was informed that the investigation would begin the following day. See testimony of Westerman.

 

30.  At the time of the administrative hearing, Corporal Todd Pekny (“Cpl. Pekny”) had been a Conservation Officer for District Three of the Department’s Law Enforcement Division for nearly 13 years. His primary office is located within Prophetstown. His primary duties include the enforcement of Fish and Wildlife laws and outdoor recreation laws, including laws concerning boating and off road vehicles. He also assists with enforcement of the laws related to other divisions of the Department. For the Department’s Division of State Parks, he assists with investigations. He has previously been involved in two ejections from Prophetstown. See testimony of Cpl. Pekny.

 

31.  On December 17, 2015, Cpl. Pekny responded to the incident reported by Westerman and inspected the dump site on the new road of Prophetstown, which was .1 mile from Swisher road. The newly paved road was closed to the public when he conducted his inspection of the site. The dump site was on the other side of a small hill and could not be seen from Swisher Road. See testimony of Cpl. Pekny.

 

32.  The mud and soil at the dump site was orange in color. See testimony of Cpl. Pekny.

 

33.  The following trash was dumped at the dump site: an air conditioning vent, numerous pieces of drywall of various sizes, carpet, carpet padding, a chair, cardboard boxes, a green shutter, a dishwasher, a fan, buckets, an entry door, a storm door, a filing cabinet and other construction waste. See testimony of Cpl. Pekny and Exhibit 2-A through 2-E.

 

34.  The volume of the trash at the dump site was too large to fit in a standard size pickup truck. See testimony of Cpl. Pekny and Exhibit 2-A through 2-E.

 

35.  After law enforcement’s inspection, clean-up of the dump site was completed in approximately five hours by three Park staff members and a backhoe. See testimony of Westerman.

 

36.  Based on evidence that the dump site was in a field directly adjacent to the new road within Prophetstown; that the Property Manager’s home was directly behind the dump site; that Westerman dealt with the trash as a part of his responsibilities as an Assistant Park Manager; and that the trash was cleaned up by Park staff, a reasonable inference is reached that the dump site was within the boundaries of Prophetstown. No evidence contrary to this conclusion was presented by either party.

 

37.  Two specific ties to Petitioner Thomas were found in the dumped trash. First, a 2008 receipt from Advantage Tools, dated August 4, 2008, listing the customer “Michael Thomas”, was included within the dumped trash. On December 17, 2015, Cpl. Pekny visited the address listed on the receipt and was told by the person at that home that Michael Thomas did not live there. See testimony of Cpl. Pekny and Exhibit 3.

 

 

[VOLUME 14, PAGE 118]

 

 

38.  Second, an appliance box found in the dumped trash included a serial number for an “Armstrong Furnace” unit. Cpl. Pekny contacted Armstrong Furnace and was told that the serial number matched a unit that was shipped to “Descair Supply” in Montreal, Canada. He contacted Descair Supply and was informed that the unit was shipped to “Surplus City Liquidators.” He contacted Surplus City Liquidators and was emailed a copy of the Invoice for the furnace unit.  See testimony of Cpl. Pekny and Exhibit 4.

 

39.  The serial number on a cardboard furnace box in the dumped trash was tracked to a Surplus City Liquidators invoice, #1118508, dated June 3, 2014, that includes the Petitioner’s current phone number[4] and address. In addition, the invoice includes the following information for a gas furnace purchase in the amount of $819.00, COD:

 

a       The “Billing Address” is: “Michael Thomas 2400 marana ct west Lafayette, IN 47906 United States”.  

b       The “Shipping Address” is: “Michael Thomas 2400 marana ct west Lafayette, IN 47906”.

See Exhibit 4.

 

40.  Cpl. Pekny estimates that 2400 Marana Court, West Lafayette, Indiana, is just over two and one-half miles from the entrance to Prophetstown, off of Swisher Road. Thomas estimates that Prophetstown is four to five miles from his home at 2400 Marana Court. While these distances differ, the difference is not dispositive to this decision and both estimates support the finding that the dump site is within a short distance from the Petitioner’s home. See testimony of Cpl. Pekny and Thomas.

 

41.  On December 18, 2015, Cpl. Pekny arrived at 2400 Marana Court, West Lafayette, Indiana and observed two vehicles in the driveway. One of the vehicles had a trailer attached to it. The trailer was an adequate size to support the volume of trash dumped at Prophetstown. The floor of the trailer had drywall dust on it. See testimony of Cpl. Pekny and Exhibit 5-A through 5-C.

 

42.  On December 18, 2015, a vehicle and trailer, at the Petitioner’s residence, had mud on them. The dried mud had an orange color to it that formed a splatter pattern on the outside of the trailer. Dried mud was also on the trailer’s tires. See testimony of Cpl. Pekny and Exhibit 5-A through 5-C.

 

43.  The vehicle attached to the trailer parked at the Petitioner’s home on December 18, 2015, was titled in the Petitioner’s name. See testimony of Cpl. Pekny and Exhibit 1.

 

44.  On December 18, 2015, at the Petitioner’s residence, a pair of shoes was on the front step, covered in dried mud. The dried mud on the shoes was the same orange color as the mud at the dump site. See testimony of Cpl. Pekny and Exhibit 5-D.

 

45.  On December 18, 2015, at the Petitioner’s residence, no one answered the door when Cpl. Pekny knocked. See testimony of Cpl. Pekny.

 

46.  Cpl. Pekny went to lunch immediately following his visit to the home at 2400 Marana Ct. and while he was at lunch, Thomas called the District Three office to ask why a Conservation Officer was at his house. The call was placed from the same telephone number as the telephone number on the invoice faxed by Surplus City Liquidators to Cpl. Pekny. See testimony of Cpl. Pekny and Exhibit 4.

 

47.  On December 18, 2015, Thomas spoke to Cpl. Pekny on the telephone and they made arrangements to meet on December 19, 2015, to discuss the investigation concerning the dumped trash. They met on December 19, 2015, at the Department’s District Three Conservation Officer Headquarters.

 

a       During the interview, Thomas denied that he dumped the trash. However, Cpl. Pekny observed “nonverbal cues” that led him to believe that Thomas was being deceptive.[5]

b       Thomas reported to Cpl. Pekny that he has houses for rent and that he does light construction.

c       Thomas told Cpl. Pekny that he has people who work for him who dump trash at the transfer station.

d       Thomas acknowledged that he recently changed his carpet but denied that the carpet at the dump site belonged to him. Thomas reported to Cpl. Pekny that he took his carpet to the transfer station.

e       Cpl. Pekny asked Thomas why a receipt with his name on it, dated August 4, 2008, would be in the dumped trash and received no response or explanation from Thomas.

f        Thomas shared with Cpl. Pekny that “Hector”, “Butch” and “Jeronimo” also used his truck and the trailer. Thomas did not provide any contact information for Butch or Jeronimo. Thomas told Cpl. Pekny that Hector worked at the West Lafayette Fire Station Number 3.

See testimony of Cpl. Pekny and Exhibit 1.

 

48.  Following his interview with Thomas, Cpl. Pekny contacted Hector Zaragoza at a fire station in Lafayette. Hector was upset at being named as a potential perpetrator and at being questioned at work. Hector reported to Cpl. Pekny that the last time he drove the Petitioner’s truck was approximately three weeks prior to his interview with Cpl. Pekny. See testimony of Cpl. Pekny and Exhibit 1.

 

49.  A transfer station that accepts construction waste that is 1.1 miles from Prophetstown and 3.6 miles from the home of Thomas. See testimony of Cpl. Pekny.

 

50.  Following his investigation Cpl. Pekny issued two citations to Thomas. One citation was for littering. The other citation was issued because the plates on his Avalanche were expired, a vehicle that Thomas admitted to driving. This Avalanche is the vehicle that was connected to the trailer at the Thomas residence. See testimony of Cpl. Pekny and Exhibit 1.

 

51.  Prior to issuing the ejection that is the subject of this administrative appeal, Cpl. Pekny evaluated the consequence of an ejection and determined that the punishment of ejection was justified and necessary. See testimony of Cpl. Pekny.

 

52.  Cpl. Pekny issued a written ejection of Thomas from Prophetstown for a one year period, from December 19, 2015 until December 19, 2016. The Department’s Notification of Ejection from DNR Property provided Thomas with a notice of his right to an administrative review of the corrective action by the Department issued “pursuant to IC 14-10-2-4; IC 14-11-2-1; 312 IAC 8-5-3”. See testimony of Cpl. Pekny and Exhibits 1 and 6.

 

53.  Both Cpl. Pekny and Westerman have had prior experiences with park ejections for one year terms. Both support the ejection of Thomas for one year from Prophetstown. See testimony of Cpl. Pekny and Westerman.

 

54.  Prior to his ejection, Thomas had been to Prophetstown five or six times, to go to the pool and the playground.

 

55.  Thomas is a “broker” and a “property manager”. From time to time, he works with three to six other persons. See testimony of Thomas.

 

56.  Thomas recognized the trailer in the photographs admitted as Exhibit 5-A through 5-C as the trailer parked at his home, attached to his vehicle. The trailer is owned by Thomas’ sister. See testimony of Thomas.

 

57.  Thomas recognized the shoes in the photograph admitted as Exhibit 5-D. Thomas denied ownership of the shoes on his front porch that were covered in mud. However, ownership of the shoes is not dispositive for a determination as to whether he used the shoes. He offered no reasonable alternative to explain the placement of the shoes on his front porch. See testimony of Thomas.

 

58.  Thomas bought the furnace reflected by the Invoice admitted as Exhibit 4 over the phone. Thomas proclaimed uncertainty about how the receipt wound up in the trash that was dumped at Prophetstown. See testimony of Thomas.

 

 

[VOLUME 14, PAGE 119]

 

 

59.  Thomas denied that he dumped the trash at Prophetstown. Thomas provided no reasonable alternative to the evidence presented by the Department supporting the Department’s accusation that Thomas dumped the trash. His denial is not supported by the weight of the evidence presented during the administrative hearing. See testimony of Thomas.

 

60.  Despite being named as a witness on the Department’s Witness and Exhibit List, Thomas refused to answer many of the direct examination questions posed by the Department. The basis of his refusal was that he had nothing else to say under “oath”. In addition, Thomas asserted that the case was “ridiculous” and “frivolous” and that anything they asked him would be designed to help them and he did not want to “help” them. See testimony of Thomas.

 

 

Conclusions of Law

 

61.  As the “ultimate authority” the Commission conducts this proceeding de novo.  IC 4-21.5-3-14(d)

 

62.  De novo review requires the Commission and its ALJ to consider and give proper weight to the evidence rather than deferring to the original determination of the Department. Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 CADDNAR 317, 318 (2011) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).

 

63.  The Commission has adopted a rule of reasonableness to review ejections from DNR properties under 312 IAC 8-5-3.  If the Department fails to present evidence sufficient to support the ejection, upon administrative review, the Commission may revoke the ejection. Ronald Lambermont v. DNR, 12 CADDNAR 219 (2010).

 

64.  If the Department presents sufficient evidence to support the ejection but the duration of the ejection is unreasonable, the Commission on administrative review may shorten the duration of the ejection. Colton Lambermont v. DNR, 12 CADDNAR 215 (2010).

 

65.   “At each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….”  IC 4-21.5-3-14(c) 

 

66.  If an agency seeks the imposition of a sanction, it has the burden of persuasion and the burden of going forward (sometimes collective referred to as the “burden of proof”).  Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (1991 Ind. App.). As stated in Jackson v DNR, 13 CADDNAR 53, 54 (2012), “Ejection from a DNR property under 312 IAC 8-5-3 is a form of sanction.” 

 

67.  In this case, the Department has the burden of going forward and the burden of persuasion (collectively, the burden of proof) with sufficient evidence to support the ejection.

 

68.  In an administrative review under AOPA, the standard of review is ordinarily “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993). 

 

69.  “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Fultz & Trenmoth v. DNR, 13 CADDNAR 46 (2012) citing Bivens v. State, 642 N.E.2d 928 (Ind. 1994).  The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true.  Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964). See also Jackson v DNR, supra, at page 54.

 

70.  In this case, the standard of review for the ejection of Thomas from a DNR property under 312 IAC 8-5-3 is preponderance of the evidence. 

 

71.   “DNR property” is defined at 312 IAC 8-1.5-6 to mean “land and water where any of the following applies: (1) The department has ownership...(2) The department holds a lease, easement, or license. (3) A dedication was made under IC 14-31-1. (4) The department manages the property.”

 

72.  Prophetstown is owned or managed by the Department.

 

73.  Ejection from one or more DNR properties is authorized as follows:

 

(a) A property manager or another authorized representative may require a person to leave a DNR property or may otherwise restrict a person's use of a DNR property.

(b) An ejection or restriction imposed under subsection (a) is effective immediately and applies for twenty-four (24) hours unless the property manager or other authorized representative specifies a shorter duration.

(c) Notwithstanding subsection (b), a property manager or another authorized representative may designate in writing that the ejection or restriction shall remain in effect for not more than one (1) year. An ejection or restriction under this subsection is subject to administrative review to the commission under IC 4-21.5.

(d) An ejection or restriction imposed under this section may be made applicable to all or a portion of particular DNR property, to multiple DNR properties, or to all DNR properties.

312 IAC 8-5-3

 

74.  Westerman is a Department employee who is the Assistant Manager of Prophetstown. Westerman did not eject Thomas from Prophetstown.

 

75.  “…A conservation officer shall do the following: (1) Detect and prevent violations of natural resources laws.(2) Enforce natural resources laws and rules.(3) Perform other related duties that are imposed upon conservation officers by law. (c) A conservation officer has the same power with respect to natural resources matters and the enforcement of the laws relating to natural resources laws as have law enforcement officers in their respective jurisdictions.” IC 14-9-8-16

 

76.  The ejection of Thomas from Prophetstown was issued by Cpl. Pekny, a Department Conservation Officer, on December 19, 2015. Exhibit 6

 

77.  Cpl. Pekny is a representative of the Department authorized to issue an ejection pursuant to 312 IAC 8-5-3.

 

78.  The basis of the Thomas ejection issued by Cpl. Pekny, as stated in the Notification of Ejection from DNR Property, is IC 35-45-3-2, which states, in part:

 

(a) A person who recklessly, knowingly, or intentionally places or leaves refuse on property of another person, except in a container provided for refuse, commits littering, a Class B infraction. However, the offense is a Class A infraction if the refuse is placed or left in, on, or within one hundred (100) feet of a body of water that is under the jurisdiction of the:

(1) department of natural resources; or

(2) United States Army Corps of Engineers.

Notwithstanding IC 34-28-5-4(a), a judgment of not more than one thousand dollars ($1,000) shall be imposed for each Class A

infraction committed under this section.

(b) "Refuse" includes solid and semisolid wastes, dead animals, and offal.

(c) Evidence that littering was committed from a moving vehicle other than a public conveyance constitutes prima facie evidence that it was committed by the operator of that vehicle.

      See Exhibit 6.

 

79.  Pursuant to 312 IAC 8-2-2(a), “Trash, refuse, waste, garbage, glass, petroleum products, sewage, or another material must not be: (1) maintained, treated, or disposed in a manner that violates a federal or state law; or (2) brought onto a DNR property for disposal….”

 

80.  Trash, in the form of construction waste, was dumped, or disposed in a manner that violated State law, at Prophetstown.

 

81.  During the investigation, Thomas denied that he dumped the trash. Cpl. Pekny did not find his denial to be credible.

 

82.  As stated in Hardiman and Patterson v Cozmanoff, 4 N.E.3rd 1148, 1152 (Ind. 2014):

 

“It is a bedrock principle of our criminal justice system that “no person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V; see also Ind. Const. art. 1, § 14 (“No person, in any criminal prosecution, shall be compelled to testify against himself.”).¹ The Fifth Amendment, incorporated to the States by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).  A civil defendant who chooses to avail himself of this protection, however, does so at his peril: “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); see also Morgan v. Kendall, 124 Ind. 454, 24 N.E. 143, 145 (1890) (holding a defendant's invocation of his Fifth Amendment privilege during his trial testimony “was a matter proper to be considered by the jury”).”

 

 

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83.  During the administrative hearing, Thomas responded to some questions by the Department on direct examination. However, Thomas refused to testify in response to other questions. He refused to respond to some of the questions based on his Constitutional rights under the Fifth Amendment. For other questions, he refused to testify because of his stated belief that his responses could “help” the Department.

 

84.  Negative inferences are taken against the interests of the Petitioner based on his failure to testify in response to questioning on direct examination.

 

85.  Thomas’ denial is not supported by the evidence.

 

86.  “The burden of production may shift to the alleged violator when the agency pursuing sanctions for the violation has demonstrated a prima facie case of violation, but the ultimate burden of persuasion may never so shift.” Peabody Coal v Ralston, 578 N.E.2d 751, 754 (1991 Ind. App.).

 

87.  The burden of production shifted to Petitioner Thomas upon the Department’s prima facie showing that the Thomas dumped the trash.

 

88.  Thomas provided no logical alternative to rebut the weight of the evidence presented by the Department supporting a conclusion that Thomas dumped the trash at Prophetstown.

 

89.  The burden of persuasion remained with the Department throughout the proceeding. Based upon the evidence presented, the Department met its burden.

 

90.  Thomas is found to have violated IC 35-45-3-2 and 312 IAC 8-2-2(a).

 

91.  The duration of the ejection is deemed to be reasonable given the nature of the offense and the limited geographic scope of the ejection, the park within which the waste was originally discovered.

 

92.  The Department orally requested an extension of the ejection’s duration during the hearing. However, 312 IAC 8-5-3(c) provides that an “ejection or restriction shall remain in effect for not more than one year….” No extension beyond the one year term of ejection imposed by the Department is appropriate.