CADDNAR Updates
Recent Caddnar Decisions (September 23, 2013)
McClure v. Fidelity & Deposit, 13 CADDNAR 201 (2013)
On summary judgment, a surety was required to forfeit a timber buyer’s bond to the benefit of landowners. In another administrative proceeding previously decided by the Commission, as well as in a criminal action, the timber buyer was found responsible for an unlawful and uncompensated harvest of the landowners’ timber. Administrative Cause No. 13-084F
Markland v. Swistek d/b/a Crack of Dawn Hunt Club, 13 CADDNAR 194 (2013)
For consideration were objections by a neighboring landowner to DNR’s issuance of the initial and the next year’s renewal permit for a shooting preserve in Jasper County. The neighbor was found to have standing to seek administrative review and to have the burden of proof. Technical requirements for the permits were satisfied, but Commission rule authority in IC 14-22-2-6 to protect the “welfare of the people” not exercised. The Claimant asserted unsuccessfully the shooting preserve was a “nuisance.” Jasper County can require zoning for a shooting preserve, but proper zoning is not a condition precedent to DNR permitting. With modest adjustments, the permits were affirmed. Distinct from this final agency action, the AOPA Committee recommended the Advisory Council consider a nonrule policy document for the welfare of the people. Administrative Cause Nos. 11-171D and 12-125D.
Allen v. LaSalle Application of 312 IAC 11-3-2, 13 CADDNAR 191 (2013)
A matter of first impression was the consideration of 312 IAC 11-3-2. If a petition for administrative review is received for a pier placed under a general license, after the later of the expiration of 90 days or January 1 of the following year, the parties must remove and refrain from returning a structure to the lake until a final agency action. An administrative law judge may modify these requirements, but the burden of proof is upon a party seeking modification. Administrative Cause No. 12-176W
Day and Schramm v. McCulloch & DNR, 13 CADDNAR 184 (2013)
Res judicata and collateral estoppel precluded a license applicant from causing modification of a previous delineation of riparian zones on Jimmerson Lake, a public freshwater lake in Steuben County. Approval by the DNR of a new delineation was reversed. Administrative Cause No. 12-109W
Ogden (Remand) v. DNR, 13 CADDNAR 182 (2013)
For consideration was the Department’s denial of Ogden’s application for a wild animal possession permit under 312 IAC 9-11-7. Ogden applied for the permit to facilitate her continued possession of an orphaned raccoon she obtained on May 20, 2010, a time outside the lawful season for taking raccoons. Because Ogden had not obtained the raccoon lawfully, the Department’s denial of Ogden’s application was affirmed. Administrative Cause No. 10-135D
Parker v. DNR, 13 CADDNAR 176 (2013)
This proceeding discusses the constitutionality of IC 14-10-3-8, which authorized discipline and termination of property managers for “repeated unbecoming conduct”. The Department’s termination of the property manager was affirmed. The termination occurred in May 2012, and IC 14-10-3-8 was repealed effective July 2012. Administrative Cause No. 12-032D
Sommers v. LaPorte Co. Conven. & Visitors Bur., 13 CADDNAR 169 (2013)
For consideration were objections to a boat race permit for Stone Lake in LaPorte. Stone Lake is a “small lake” under IC 14-15-3 and a “public freshwater lake” under IC 14-26-2. The determination was a small lake was not disqualified from high-speed boating in a DNR-approved boat race. The boating law provisions of IC 14-15-3 and the environmental considerations of IC 14-26-2 should be considered together in conditioning the permit. Issuance of the permit was affirmed but with enhanced conditions for boating safety and the protection of shorebirds. Administrative Cause No. 13-068L
Parker v. Bd. of Lic. Pro. Geologists, 13 CADDNAR 164 (2013)
Denial by the BLPG of an application for a geologist license was affirmed. The education experience required by IC 25-17.6-4-1 and 305 IAC 1-3-2 can be achieved only after an applicant obtains a BS or advanced degree in geology. The applicant did not demonstrate a sufficient period of qualified experience. Administrative Cause No. 13-051Y
Spurrier & Paddle Michiana v. DNR, 13 CADDNAR 166 (2013)
Closure of a campground at Pigeon River Fish and Wildlife Area in LaGrange County, a DNR property, is not an “agency action” as the term is defined in AOPA. The closure is a proprietary function that implements a rule. Whether the closure constitutes a “conversion” of Indiana’s Statewide Outdoor Recreation Plan (commonly called the “SCORP”) is a matter within the jurisdiction of the Secretary of the US Department of Interior. Because the Commission lacked jurisdiction for administrative review, the proceeding was dismissed. Administrative Cause No. 13-049D
Moody v. Johnson County Surveyor, 13 CADDNAR 162 (2013)
Motions to dismiss filed by the Department of Natural Resources and Johnson County Surveyor were granted based upon a finding Moody failed to demonstrate, in accordance with IC 4-21.5-3-7(a)(1), that Moody was entitled to seek administrative review of the Department’s approval of the Johnson County Surveyor’s floodway permit application. This matter is under judicial review (Marion Superior Court, Env. Unit: 49F12-1304-MI-015868). Administrative Cause No. 13-043W
