ORDER
Summary judgment is granted under IC 4-21.5-3-23 in favor of the Department of Natural Resources and RDI/Caesar's Riverboat Casino, LLC and against Save Our Rivers and Don Mottley with respect to cultural and historical resources. The DNR and Caesar's have sustained their burden of proof on this issue. Upon the law and upon facts for which there are no genuine disputes, the Natural Resources Commission lacks authority in this proceeding to consider cultural and historical resources.
FINDINGS OF FACT
1. Summary judgment is appropriate where no genuine issue of material fact exists and where 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). Despite conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact that is dispositive of the litigation. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).
2. A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. cited previously. As the moving parties, the Department of Natural Resources (the "DNR") and RDI/Caesar's Riverboat Casino, LLC (Caesar's) have the burden of proving they are entitled to summary judgment against Save Our Rivers and Don Mottley ("SOR") in this proceeding on the issue of cultural and historic resources.
3. Summary judgment is made applicable to this proceeding by IC 4-21.5-3-23.
4. SOR alleges in its request for administrative review that permit FW-17,793 is "not conditioned to adequately protect cultureal [sic.] and historic resources." Concern is expressed for sites under review by the DNR's Division of Historic Preservation and Archeology and by the U.S. Army Corps of Engineers.
5. At issue in this proceeding is Permit FW-17,793 (the "subject permit") granted under authority of the Flood Control Act (IC 14-28-1) and the Navigable Waterways Act (IC 14-29-1). A separate permit is not required under the Navigable Waterways Act for an activity permitted, among other statutes, under the Flood Control Act. Where a permit is issued under the Flood Control Act which includes territory subject to the Navigable Waterways Act, however, the Flood Control Act must also meet the requirements of the Navigable Waterways Act for that territory. IC 14-29-1-8(d).
6. Whether a permit granted under the Flood Control Act may contain conditions pertaining to cultural and historic resources was recently addressed by the Natural Resources Commission in Edwardsville Water Corporation and Citizens Against the Pit v. Department of Natural Resources and Silver Creek Sand & Gravel Co., Inc., Administrative Cause No. 96-138W. See also Minutes of Regular Monthly Meeting of the Natural Resources Commission (July 22, 1997) published on the Internet at http://www.ai.org/nrc/mi072297.htm. Neither IC 14-28-1 nor rules adopted under the Flood Control Act make any reference to historic preservation or archeology. As determined by the Commission, the DNR lacks jurisdiction to consider historic preservation issues in the context of a permit granted under the Flood Control Act, although this result does not obviate responsibility
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for compliance with the State Historic Preservation and Archeology Act (IC 14-21-1). In accord are Brown v. DNR and Peabody Coal Company, 6 Caddnar 136 (1993) and Michigan City Historical Society v. DNR and Francik, 5 Caddnar 169 (1990).
7. For navigable waters, the
DNR is not only the regulator but also the proprietor. Title to the bed of a navigable water is
owned by the State of Indiana. State v. Kivett, 228 Ind. 629, 95 N.E.2d 148 (1950). The state
agency assigned "general charge" of navigable waters is the DNR. IC 14-19-1-1(9). The line of
demarcation for a navigable waterway is its ordinary high watermark. 310 IAC 21-1-1(c) as
since recodified at 312 IAC 6-1-1(b).
8. Where the Navigable Waterways Act applies, the resulting scope of permit review is broader than what applies under the Flood Control Act. Included within the broader scope are matters pertaining to historic preservation and archeology. As illuminated by rule, a person may not remove, disturb, salvage, or destroy an historic site which is located in whole or part within a navigable waterway except under a permit issued under the State Historic Preservation and Archeology Act. 310 IAC 21-3-2.
9. Official notice is taken that the portion of the Ohio River located within Indiana boundaries is navigable. Roster of Waterways Declared Navigable or Nonnavigable, Natural Resources Commission, Information Bulletin #3 (First Revision), 20 Ind. Reg. 2920, 2928 (July 1, 1997) and published on the Internet at http://www.ai.org/nrc/navigati.htm.
10. James A. Mohow, an archeologist for the DNR, states that he has been involved with the U.S. Army Corps of Engineers and others within the DNR's Division of Historic Preservation in reviewing the project area under consideration within the subject permit. Recent archeological investigations have identified nine archeological sites on the project site that may be eligible for inclusion on the National Register of Historic Places. None of these sites is within (below) the ordinary high watermark of the Ohio River. Affidavit of James A. Mohow (October 31, 1997) attached to the DNR's Motion for Partial Summary Judgment as Respondent's Exhibit 1. The facts as recited by Mohow are not refuted by SOR.
11. No historic or archeological sites have been identified within the project area which are within the ordinary high watermark of the Ohio River and subject to jurisdiction of the DNR under IC 14-1-29. The DNR lacks jurisdiction under the Navigable Waterways Act to consider archeological sites located outside the ordinary high watermark of the Ohio River.
12. No jurisdiction is established by the Flood Control Act (IC 14-28-1) to consider cultural and
historic resources. No historic or archeological sites have been identified within the ordinary
high watermark of the Ohio River, and within the area covered by the subject permit, upon which
action may be taken under the Navigable Waterways Act (IC 14-29-1). Any action which may be
appropriate to the State Historic Preservation and Archeology Act (IC 14-21-1) is not at issue in
this proceeding and must properly be taken with respect to licensing or other agency action by the
DNR under IC 14-21-1.