CADDNAR

[CITE: Roberts v. Beachview Properties, LLC, et al., 10 CADDNAR 125 (2005)]

FINAL ORDER:

IT IS THEREFORE ORDERED that:

145. The riparian boundaries shall be defined as outlined in NOSEK v. STRYKER, supra, and shall be perpendicular to the shoreline.

146. "Perpendicular to the shoreline" shall be defined as set out in Final Hearing Exhibit 19.

147. The parties shall maintain a setback of 10 feet for the base of all temporary structures, and watercraft moored to such structures,

148. No pier, pier extension, boat, or other temporary structure shall extend more than 175 feet into the waters of Lake Maxinkuckee from the party's shoreline.

149. A party may place a pier upon a property line shared with another party, or place a pier within another party's riparian boundaries, only if both parties consent in writing.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FINDINGS OF FACT

A. The Parties And Property

1. Glen and Martha Roberts (the "Roberts") are the owners of real property with 100.31 feet of frontage on the western shore of Lake Maxinkuckee in Marshall County, Indiana. Stipulated Exhibit 1.

1. [sic.] The property owned by the Roberts includes a single-family dwelling. Id.

2. Beachview Properties LLC ("Beachview") is the owner of real property with 54.5 feet of frontage on the western shore of Lake Maxinkuckee. The Beachview tract is contiguous to the land owned by the Roberts and occupies the frontage north of the frontage owned by the Roberts. Id.

3. Beachview purchased its waterfront property from Culver Property Management on August 22, 2003. Id.

4. The property owned by Beachview is an approximately 54.5 foot rectangle at the lakeward end, which widens to a larger rectangle some distance from the Lake. Id. The shape of Beachview's property is depicted in Final Hearing Exhibit 9, the May 12, 2003, Drainage Plan Bayside Condominiums.

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5. The larger rectangular portion of Beachview's property includes a 10-unit condominium complex. Stipulated Exhibit 1. The evidence presented in this matter is undisputed that there is no residential or commercial dwelling on the lakeward, smaller rectangular portion of the property.

6. Beachview witness, Alan Collins stated without dispute that the property owned by Beachview has been or will be conveyed to individuals who have purchased individual condominium units from Beachview and will be known as Bayside Condominiums. The managing association for the condominiums is known as Bayside Condominiums Association.

7. Beachview, Bayside Condominiums, and its association and individual owners agreed to be bound by any decision of the Commission in this matter, and will be referred to herein as "Beachview". Testimony of Alan Collins.

8. Harbour Condominiums ("Harbour") is the owner of real property with 245.38 feet of frontage on the western shore of Lake Maxinkuckee. Stipulated Exhibit 1. Harbour's property is contiguous to the land owned by Beachview and occupies the frontage north of the frontage owned by Beachview. Id.

9. The property owned by Harbour includes a 20-unit condominium complex. Id.

10. Final Hearing Exhibit 4 is a survey drawing completed by Craig Cultice of Plymouth Land Surveying and Design, Inc., on May 14, 2004. Final Hearing Exhibit 4 is a true and accurate depiction of the position of the parties' piers during the Spring of 2004.

B. Historic Placement of Piers

11. Since 1995, the Roberts have placed a single pier on Lake Maxinkuckee as depicted in Final Hearing Exhibit 4. Stipulated Exhibit 1.

12. The Roberts' pier extended 120 feet lakeward from the seawall. Id.

13. At the seawall, the Roberts' pier was 12 feet from his adjoining property line with Beachview. Id.

14. During the summer of 2004, the Roberts moored one large watercraft (approximately 22 feet), two medium watercraft (approximately 17 feet), and one small watercraft (less than 10 feet in length) to the Roberts' pier. Id.

15. The Roberts moored their watercrafts parallel to their pier on both sides of the pier. Id.

16. Since 1998 Harbour has placed two piers on Lake Maxinkuckee as depicted in Final Hearing Exhibit 4; Stipulated Exhibit 1.

17. Harbour's piers extended 154 and 128 feet from the seawall. Stipulated Exhibit 1.

18. The configuration of Harbour's piers as shown in Final Hearing Exhibit 4 is a change from the positions occupied by Harbour's piers from 1980 to 1998, in that in 1998 Harbour modified its piers' placement by angling the northern pier towards the southern pier.

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19. Harbour's piers accommodated 20 large watercraft (approximately 25 feet) and 30 small watercraft (less than 16 feet in length) in 2004. Stipulated Exhibit 1. Some of the large watercraft were inboard boats, which witnesses indicated are more difficult to navigate that outboard boats.

20. At the seawall, Harbour's southern pier is installed 55 feet from its adjoining property line with Beachview. Stipulated Exhibit 1. Harbour moored watercrafts perpendicular to the southern pier on both sides of the pier, as well as on a "T" on the lakeward end of the pier. Id.

21. Harbour's northern pier is installed 34 feet from the adjoining property line with its northern neighbor. Id. Harbour moored watercrafts perpendicular to the northern pier on both sides of the pier. Id.

22. Harbour's southern and northern piers are tilted toward each other by 3.35 degrees, which causes them to be closer to each other at the lakeward end than they are at the shoreline. Id.

23. Beachview first placed a pier on Lake Maxinkuckee in 2004 as depicted in Final Hearing Exhibit 4, Stipulated Exhibit 1.

24. Beachview's pier extended 186 feet, 8 inches from the shoreline and some greater distance from the seawall. Stipulated Exhibit 1. The pier was later shortened to 130 feet from the seawall. Id.

25. Beachview's pier included multiple fingers or extensions on the north side of the pier only, and Beachview moored watercrafts perpendicular to its pier on the north side of the pier, as well as on a "T" on the lakeward end of the pier. Final Hearing Exhibit 4.

26. Beachview moored large watercraft 25 feet in length to its pier, including inboard boats, which witnesses testified as being more difficult to navigate than outboard boats.

27. The Court takes judicial notice of the Court's record which demonstrates that Harbour's immediate northern neighbors, Rod and Dollie Martindale, are not parties to this proceeding.

28. Witness testimony was undisputed that the Martindales and the four neighbors north of the Martindales' property have historically placed piers on Lake Maxinkuckee.

29. Witness testimony was undisputed that in and before 2004, the Martindales and their four northern neighbors placed piers perpendicular to their shoreline.

30. Witness testimony was undisputed that the Roberts' southern neighbor is Culver Cove. The Court takes judicial notice of the Court's record which demonstrates that Culver Cove is not a party to this proceeding.

31. Witness testimony was undisputed that in and before 2004, Culver Cove placed multiple piers on the lake and perpendicular to the shoreline.

32. Final Hearing Exhibits 14A to 14I consist of photographs of the relevant portion of Lake Maxinkuckee in 2003 and 2004. The Exhibits show that Harbour's

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northern neighbors and the Roberts' southern neighbor have placed piers on Lake Maxinkuckee perpendicular to the shoreline.

C. The Lake And Property Lines

33. Lake Maxinkuckee is essentially oval, as depicted in Final Hearing Exhibits 1 and 18; Stipulated Exhibit 1.

34. The properties at issue are not located within a cove or other unusual configuration. Stipulated Exhibit 1.

35. The shorelines of the Roberts, Beachview, and Harbour are not irregular and are approximately straight. Exhbit 18, aerial photograph of Lake Maxinkuckee.

36. The angles of the property lines between the properties owned by Harbour, Beachview, and the Roberts, as well as the property lines of the surrounding neighbors, run in a variety of different directions and are acute or obtuse. Stipulated Exhibit 1. No two property lines held by the Roberts, Beachview, or Harbour have the same compass headings. Id.

D. 1998 Agreed Order

37. The properties owned by Beachview, the Roberts, and Harbour were the subject of an administrative proceeding before the Natural Resources Commission (the "Commission") under Commission Cause No. 96-186W (the "1996 Dispute"). Id.

38. Beachview was not a party to the 1996 Dispute. Id. However, Culver Property Management, the successor owner of the Beachview property, was a party. Id.

39. The 1996 Dispute was resolved by the entry of an Agreed Order, which was approved as a Final Order by the Commission on January 9, 1998. Id.

40. Harbour recorded the Agreed Order with the Marshall County Recorder's Office on April 2, 2002. Id.

41. By its terms, the Agreed Order demonstrates that it incorporated and/or modified site-specific permits granted to each of the owners by the Department of Natural Resources (the "DNR") under the Lakes Preservation Act. The site-specific permit issued to the Roberts was PL-16,793, the permit issued to Beachview's predecessor in interest was PL-16,757, and the permit issued to Harbour was PL-17,210. Id.

E. The 2004 Temporary Order And 2004 Pier Permit Applications

42. This proceeding was initiated when, on April 1, 2004, the Roberts filed a letter petitioning for an administrative hearing to seek modification of Beachview's placement of a pier on the shoreline of Lake Maxinkuckee.

43. Following the Commission's May 7, 2004, "Report Of Prehearing Conference And Notice Of Hearing [on Temporary Relief]," the parties filed written petitions for temporary relief. A Motion For Stay Relief And Removal Of Temporary Pier Installed By Respondent Beachview Properties, LLC, Without License Required By 312 IAC 11-3-1 was filed by the Roberts on May 13, 2004, and by Harbour on May

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17, 2004. On May 17, 2004, Beachview filed its response to the above motions and its Petition For Relief. Harbour's Response To Beachview's Petition For Relief was filed on May 21, 2004.

44. On May 21, 2004, the Commission conducted a hearing on the written petitions for temporary relief. Each of the parties attended, and sworn testimony was presented and evidence was submitted.

45. The undersigned judge issued the Order Of Temporary Relief To Minimize The Likelihood Of An Unreasonable Impediment To Navigation Or A Hazard To Safety ("Temporary Order") on May 25, 2004.

46. The Temporary Order required the parties to submit applications for the placement of temporary piers to the DNR and the Commission, which the parties did.

47. The Roberts submitted their application to the DNR on June 2, 2004. The Roberts supplemented their application on October 16, 2004. Stipulated Exhibit 1.

48. The Roberts' application was admitted at a hearing before this administrative law judge on April 26 and 27, 2005, as Final Hearing Exhibit 2A.

49. The Roberts' application includes the placement of two piers, four feet wide and 120 feet in length. Stipulated Exhibit 1. The Roberts' application proposes that the base of their northern pier occupy the same position occupied in 2004, with its base 12 feet from the shared property line with Beachview. Id. The Roberts' southern pier would be six feet from the shared property line with the Roberts' southern neighbor, Culver Cove. Id.

The Roberts also request that their two piers be placed at different angles. With respect to the northern pier, the Roberts suggest that their northern property line should be artificially extended into the water at the same angle occupied by the existing land-bound property line. Their pier would be placed such that the northeast corner of the pier would be 30 feet from the existing land-bound property line extended into the lake. However, the Roberts suggest that their southern property line should be artificially extended at the same angle occupied by the existing land-bound property line, which is 58 degrees, 11 minutes. The Roberts propose that their southern pier will run parallel to that line, and their southern pier will be six feet from that line both at the shore and at the lakeward tip.

50. In short, the Roberts propose that their piers be placed at two different angles. Only the southern pier would be perpendicular to the shore.

51. Beachview's 2004 application includes four configurations for the placement of a single pier (Options A, B, C, and D). Each of the four options includes space for 10 large watercraft (approximately 25 feet) and 10 small watercraft (less than 16 feet in length); the options are paired proposals seeking identical placement of piers of differing lengths.

52. Beachview's application was admitted at a hearing before this administrative law judge on April 26 and 27, as Final Hearing Exhibit 2B; Stipulated Exhibit 1.

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53. Each of the options in Beachview's 2004 application includes a pier of either 175 or 200 feet in length, five feet in width, with five extensions perpendicular to the pier on the northern side of the pier only. Id. The extensions would be 20 feet in length and three feet in width. In addition, each of the options in Beachview's 2004 application requests that the pier be installed at an angle perpendicular to the seawall. Id.

54. The four options in Beachview's 2004 application include the following:

55. Harbour initially submitted its 2004 application to the DNR on July 21, 2004. Id. Harbour supplemented its application on November 29, 2004, and on April 4, 2005 (collectively the "Harbour Application"). Id. The Harbour Application was admitted at a hearing before this administrative law judge on April 26 and 27, 2005, as Final Hearing Exhibits 2C and 2Z.

56. The Harbour Application includes two options:

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iii. The center pier would be 153 feet (or 175 feet if Beachview is so permitted) in length and five feet in width. The pier's base would be placed 88 feet from Harbour's northern property line. Extensions would be placed on both sides of the pier. Watercraft would be moored perpendicularly to the center pier. Id.

57. The Harbour Application further suggests that parties should contribute to "back out space" equally. Harbour defines "back out space" as the distance between the stern drives of two property owners' respective watercrafts, where the watercrafts are moored perpendicularly to piers such that they back out toward one another. The Harbour Application requests that, should Beachview be permitted to place the base of its pier some distance from its shared property line with Beachview, Harbour be permitted to place the base of its pier the same distance from the shared property line.

F. April 26 and 27, 2005, Final Hearing

58. The parties attempted to mediate their disputes utilizing civil mediator Thomas Lemon, but mediation was unsuccessful. The parties then submitted their unresolved dispute to the Commission for adjudication.

59. After rescheduling to accommodate various medical emergencies, the Commission conducted a final hearing on April 26 and 27, 2005, in Indianapolis, Indiana.

60. All parties were present at the hearing in person and were represented by counsel.

61. The Natural Resources Commission ("Commission") has jurisdiction over the subject matter and the persons of the parties.

62. During the hearing, governed by Ind. Code 4-21.5-3, sometimes referred to as the Administrative Orders and Procedures Act, or "AOPA", evidence was presented by each of the parties.

63. The DNR called one witness, Lieutenant John Sullivan.

64. Lieutenant Sullivan is an experienced officer with the DNR's Division of Law Enforcement, having served for 29 years with the DNR. Lieutenant Sullivan is the commanding officer for the Division's District 1, which includes Lake Maxinkuckee.

65. Lieutenant Sullivan inspected the lake frontage at issue. He had not reviewed the parties' pier permit applications, and he had performed no special investigation of the matter.

66. Lieutenant Sullivan testified that a length of 200 feet for Beachview's pier would pose a hazard to navigational safety, particularly to members of the boating public traveling on Lake Maxinkuckee near the piers. The DNR has permitted piers of 175 feet in length in the past and considers that length to be safe in the relevant portion of Lake Maxinkuckee

67. Lieutenant Sullivan testified that a minimum 10-foot setback is required under DNR policy between a pier and a property line where watercraft are not

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moored to that side of the pier. Such a setback, in his opinion, prevents ingress and egress issues between property owners.

68. Lieutenant Sullivan also addressed the necessary distance between stern drives of boats where two neighbors moor watercraft in such a way that the watercraft "back out" toward one another.

69. Lieutenant Sullivan testified that, where watercrafts are "backing out" toward one another, and where the watercrafts include some 25 feet in length with inboards, they are capable of being backed out in 25 feet of water space between stern drives. Lieutenant Sullivan said that greater backout distance would increase safety and navigability.

70. With respect to the appropriate method for defining riparian rights in this matter, Lieutenant Sullivan testified that he would recommend the "perpendicular to the shoreline" method found in Nosek v. Stryker, infra. In his opinion, where riparian lines can be extended perpendicularly into the lake, that is "ideal."

71. Lieutenant Sullivan agreed that Nosek's other two methods for defining riparian rights, including extending property lines into the lake and applying a "proportional approach," are not appropriate in this case. In his opinion, the former method is not appropriate because the property lines at issue do not reach the shoreline at a right angle. Lieutenant Sullivan further believes the later method is not applicable because the shoreline is not irregular, approximates a straight line. Therefore, it is possible to equitably apportion riparian rights through applying a perpendicular to the shoreline approach.

72. Lieutenant Sullivan testified that the piers of Harbour's northern neighbors and the Roberts' southern neighbor historically have been placed perpendicular to the shoreline.

73. Lieutenant Sullivan testified that he was not familiar with a method for defining riparian rights advocated by Beachview, the "long lake" method. Lieutenant Sullivan knew of no case in which the DNR or the Commission applied the "long lake" method, and he could recall no court decision in which the "long lake" method was used to define riparian rights. He had never used or applied the method in his 29 years with the DNR.

74. The Roberts called no witnesses, although they did elicit testimony from each of the witnesses called by other parties.

75. Beachview called two witnesses during the hearing. The first was Martin Vondra ("Vondra"), a registered land surveyor with Plymouth Land Surveying & Design, Inc.

76. Vondra had no experience with or education in riparian rights, issues related to the safety and navigability of water, or pier placement. Vondra had never reviewed the Lakes Preservation Act, Ind. Code 14-26-2, and he was not familiar with the Commission's rules at 312 IAC 11, which assist in the administration of the Lakes Preservation Act. Vondra did not know whether Lake Maxinkuckee constituted "public waters" under Ind. Code 14-8-2-226. He was not familiar with the Watercraft Operations Act, Ind. Code 14-15-3, and he was not familiar with the Commission's rules at 312 IAC 5, which assist in the

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administration of the Watercraft Operations Act. Vondra had never read the Bath v. Courts, infra, or Nosek v. Stryker, infra, decisions. Vondra was not familiar with the public trust doctrine and did not know what the doctrine entailed.

77. Vondra advocated the application of the "long lake" method to define the parties' riparian rights by extending each parties' property lines lakeward toward the center of the lake. Vondra's knowledge of the method was based on his review of treatises regarding land surveying, Legal Principles of Surveying Survey Theory and Practice, and Survey Principles .

78. Vondra admitted that the "long lake" method pertains to defining property rights in the event of accretion. Vondra admitted that accretion is not an issue in this matter.

79. Vondra knew of no Commission decision, court order, or other situation involving riparian rights in which the "long lake" method was applied.

80. Vondra stated that the method requires one to determine the center of the lake using the "thread" of the lake and the on-shore borders. The radius of the portion of a lake is determined, and lines are drawn from each shared property line to the imaginary center of the lake. The entire lake is effectively divided into pie shaped wedges, and each owner enjoys riparian rights throughout the wedge under this method.

81. Exhibit 20, admitted for demonstrative purposes only, approximates the riparian zones to be applied if the "long lake" method were used in this case.

82. Vondra admitted that the method is subject to mutliple interpretations and can result in multiple centers of the lake for calculation purposes.

83. On behalf of Beachview, Alan Collins ("Collins") also testified. Collins is a real estate developer and contractor.

84. Collins requested that the Commission consider only options B and D of its application, which were the options which extended 175 feet into Lake Maxinkuckee . Collins stated that Beachview would moor watercrafts on the north side of the pier only. A railing would be placed on the south side of the pier.

85. Harbour called two witnesses: Charles Blazevich ("Blazevich") and Former DNR Law Enforcement Division Lieutenant Ralph Taylor.

86. Blazevich is an owner of a condominium that is part of Harbour, and he is the President of the Harbour Condominium Association.

87. Blazevich is an experienced boater, with 28 years of experience operating, mooring, and turning 16 to 24 foot power boats and jet skis. Blazevich is familiar with the importance and elements of safe watercraft navigation.

88. Blazevich is familiar with the lake frontage at issue, having owned his condominium on Lake Maxinkuckee and having operated watercraft on Lake Maxinkuckee since 1993.

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89. Blazevich testified that Harbour's owners utilize the waters in front of the Harbour for swimming and boating. Harbour has used its piers as such since at least the 1980s. Harbour's piers have been placed as depicted in Final Hearing Exhibit 4 since the 1980s.

90. Blazevich testified to Harbour's historic placement of its two piers, as depicted in Final Hearing Exhibits 14A and 14B. Blazevich affirmed that Harbour has historically placed its pier perpendicular to the seawall, as have Harbour's five northern neighbors, including Rod and Dollie Martindale, Harbour's immediate northern neighbor.

91. Blazevich described the difficulties encountered by Harbour with Beachview's 2004 pier placement, even after the Temporary Order was issued. Harbour was unable to use three of the boat slips on the southern side of its south pier because there was insufficient backout space between the stern drives of boats moored to Harbour's southern pier and Beachview's pier. As a result, Harbour had to reconfigure its watercraft placement and retained a contractor to install electricity on the northern pier at some expense, leaving unused three slips on the southern pier.

92. Final Hearing Exhibits 14F and 14G depict the difficulties described by Blazevich.

93. Blazevich testified that Harbour believes the Commission should define riparian zones by drawing lines perpendicular to the shore from the point at which each of the property lines at issue meet the shore.

94. Blazevich, who has training in trigonometry, sought to further define "perpendicular to the shore," because shorelines can change. The manner in which Blazevich suggested that "perpendicular to the shore" be further defined is depicted in Exhibit 19.

95. Exhibit 19, a survey prepared by Craig Cultice of Plymouth Land Surveying, depicts the property, the locations of the parties' piers in 2004, and the relevant riparian lines for Beachview using the defined perpendicular to the shoreline approach.

96. Within Exhibit 19, property lines at the shore were delineated by survey and, where two respective property owners' shore property lines met at something less than 180 degrees, the angle was measured, split equally, and a perpendicular line was drawn.

97. Blazevich also testified that, in his experience on Lake Maxinkuckee and on the very lake frontage at issue, a safe backout distance between the stern drives of Harbour's and Beachview's watercrafts is 50 feet. Blazevich's opinion was based on the fact that the parties moor 25 foot inboard watercraft, which are large and difficult to navigate. Blazevich went on to describe that, without sufficient backout space, Harbour and Beachview owners will not be able to safely use their watercrafts. Blazevich believes it is difficult to navigate between the Harbour and Beachview piers when conditions are calm, and navigation is out of control in windy conditions without sufficient space. Blazevich further stated that the piers were so close in 2004 that owners encountered difficulty in navigating between boats along the piers, and much attention had to be given to watching the boats and the piers.

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98. Harbour also called as an expert witness Former Lieutenant Ralph Taylor ("Taylor"). Taylor is an experienced officer with the DNR's Division of Law Enforcement. All parties stipulated that Lieutenant Taylor is an expert on the topics of riparian rights, pier placement, and public freshwater usage within Rule 702 of the Indiana Rules of Evidence.

99. Taylor described in detail the public trust doctrine and the principles of safety, navigability, and riparian rights at issue in this matter. In his opinion, the appropriate approach to defining riparian rights is the perpendicular method, as shown in Exhibit 19.

100. Taylor noted that the property owners at issue, other than Roberts, and their relevant neighbors historically have followed a perpendicular approach. Should the Commission adopt the "long lake" approach advocated by Beachview, Taylor testified there would be a domino effect around the lake with Harbor's four northern neighbors because each of those owners places their piers perpendicularly.

101. Taylor asserts that the required backout distance between the stern drives of the Harbour and Beachview watercrafts is 50 feet in light of the likely pier configuration, the type of boats at issue, and the use and amount of riparian space at issue.

102. Taylor believes the long lake method is inequitable, subject to multiple and inconsistent interpretations, and would not result in consistent application. He specifically found the approach advocated in Exhibit 20 was inconsistent with safety and equity. Taylor knew of no Commission or court that previously had applied the method, although he had heard of its use with certain rivers.

103. At the conclusion of the evidentiary hearing concluded, counsel for the parties waived closing arguments and elected to submit Proposed Findings of Fact, Conclusions of Law and Orders, which were filed on or about May 4, 2005. Counsel for Beachview submitted a Final Argument in written form, with four exhibits appended thereto. Beachview's appended exhibits A, B, and C contained demonstrative exhibits created after the close of hearing evidence which further illustrated arguments stated in Beachview's Final Argument. Beachview's exhibit D was an agreement signed by representatives of Beachview and of Roberts granting Beachview permission to place its pier on a lakeward extension of the Beachview/Roberts mutual property line. On May 13, 2005, counsel for Harbour submitted a written Motion to Strike in part the Final Argument of Beachview Properties, which Motion sought to strike the four appended exhibits.

CONCLUSIONS OF LAW

G. Background

104. The proceeding was initiated on April 1, 2004, when the Roberts filed a letter petitioning for an administrative hearing to seek modification of Beachview's placement of a pier on the shoreline of Lake Maxinkuckee.

105. Hon. Stephen L. Lucas is the Commission's Administrative Law Judge for the proceeding under AOPA and 312 IAC 3-1. However, Judge Lucas recused himself

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from adjudicating this matter since he had served as a mediator to antecedent proceedings among the parties under Commission Cause No. 96-186W, PL-16,757.

106. On May 7, 2004, Judge Lucas appointed the undersigned, Hon. Mary L. Davidsen, Director and Chief Environmental Law Judge, Office of Environmental Adjudication, to serve as special administrative law judge per Ind. Code 4-21.5-3-9.

H. Law And Analysis

107. Lake Maxinkuckee is a "public freshwater lake" governed by the provisions of the Lakes Preservation Act (Ind. Code 14-26-2-1, et seq.) and rules promulgated thereunder and found at 312 IAC 11.

108. The waters of Lake Maxinkuckee are "public waters" (Ind. Code. 14-8-2-226) whose use is governed, in part, by the Watercraft Operations Act (Ind. Code 14-15-3-1, et seq.) and rules promulgated thereunder and found at 312 IAC 5.

109. The Commission has adopted rules at 312 IAC 11 to assist in the administration of the Lakes Preservation Act.

110. The Lakes Preservation Act and the Watercraft Operations Act (and rules adopted under those acts) are administered by the DNR. The Commission is the "ultimate authority" for the DNR under Ind. Code 14-10-2-3 and Ind. Code 4-21.5-1-15.

111. The proceeding is governed by Ind. Code 4-21.5, et seq., (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The Commission has adopted rules in multiple sections at 312 IAC 3-1 to assist in its administration of AOPA.

112. The Commission has jurisdiction over the subject matter and over the persons of the Roberts and the respondents.

113. For consideration is a dispute involving the propriety of the placement of seasonal or temporary piers at a site on the west side of Lake Maxinkuckee and, specifically, within what "riparian zone" the parties' piers may be placed.

114. Although several provisions of the Lakes Preservation Act and the Watercraft Operations Act are relevant to pier placement on Lake Maxinkuckee, the most pertinent is Ind. Code 14-26-2-23. This section provides for dispute resolution and authorizes the Commission to adopt rules for the "placement of a temporary or permanent structure . . . over, along, or within a shoreline or waterline" of a public freshwater lake.

115. A temporary structure is defined by rules at 312 IAC 11-2-25. As applicable to this proceeding the definition provides:

(a) "Temporary structure" means a structure that can be installed and removed from the waters of a public freshwater lake without using a crane, bulldozer, backhoe, or similar heavy or large machinery. (b) Examples of a temporary structure include the following: (1) A pier that: (A) is supported by auger poles or other poles that do not exceed three and one-half (31/2) inches in diameter and rest on the lake bed; and (B) is not mounted in or comprised of concrete or cement...

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116. Under 312 IAC 11-3-1(b), a temporary pier qualifies for placement under the terms of a general license if the pier is characterized by or does each of the following:

117. An aggrieved person may seek administrative review of the placement, pursuant to a general license, of a temporary pier. 312 IAC 11-3-2(a). When that occurs, the Commission will consider the configuration of the pier and its relationship to other piers and structures. Matters that are considered include the correlative rights of riparian owners (including persons, such as easement holders, who are the beneficiaries of riparian rights). The public trust is also considered, including the impact of pier placement upon safety, the environment, and the enjoyment of public waters. Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. Ct. App. 1992); French . Abad, et al., 9 Caddnar 176 (2004); Piering v. Ryan and Caso, 9 Caddnar 123 (2003); Snyder, et al. v. Linder, et al., 9 Caddnar 45 (2002).

118. Under their configuration on May 21, 2004, and as proposed in each of the parties' pending Applications, all three of the piers are disqualified from a general license by 312 IAC 11-3-1(b)(5); a license is required under the Lakes Preservation Act for these piers.

119. "[T]he State of Indiana holds in trust for public use and enjoyment all freshwater lakes. The opportunity to place a pier is subject to lateral limitations of the enjoyment of other riparians and to perpendicular limitation for the enjoyment of the public.

120. The Lakes Preservation Act is "[p]ublic trust legislation" intended to recognize "the public's right to preserve the natural scenic beauty of our lakes and recreational values upon the lakes." Sedberry v. DNR, 10 CADDNAR 14 (2005), citing Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001). "Riparian landowners . . . continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must now be balances with the public's rights." Id.; see also Barbee Villa Condominium Owners Ass'n v. Shrock, 10 CADDNAR 23 (2005); Brown v. Zeller, et al., 9 CADDNAR 136 (2004); Gerbers & Buhl, et al. v. Nix, et al., 9 CADDNAR 132 (2004); Piering v. Ryan and Caso, 9 CADDNAR 123 (2003); Brown, et al v. DNR, 9 CADDNAR 109 (2003; order of stay).

121. A complete resolution of issues may require a professional survey and the application of legal principles to precisely delineate the boundaries of riparian rights lakeward of the shoreline. See Bath v. Court, 459 N.E.2d 72

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(Ind. Ct. App. 1984); Nosek v. Stryker, 103 Wisc. 2d 633, 309 N.W.2d 868 (1981 Wisc.) (cited with approval in Borsellino v. Kole, 168 Wisc.2d 611, 484 N.W.2d 564 (Wisc. App. 1992).; Rufenbarger v. Lowe, et al., 9 Caddnar 150 (2004) (applying Nosek).

122. The areas within which the parties enjoy riparian rights are known as the "riparian zone." Riparian rights within such a zone are subject to regulation under Ind. Code 14-26-2, including the public trust doctrine.

123. A riparian owner "may build a pier within the extension of his shore boundaries only so far as not to interfere with the use of the lake by others." The parties must not place any structure, temporary or permanent, outside the area defined as their riparian zone.

124. The Commission has, on multiple occasions, defined riparian zones by extending lines perpendicular into the Lake. See, e.g., Piering v. Ryan and Caso, 9 Caddnar 123 (2003). The Commission has not previously applied, and no Indiana court has adopted, the "long lake" method.

125. Placement of piers in a position that goes to the most direct point of navigable water is preferred if the riparian rights of the public or other owners would not thereby be jeopardized.

126. Here, the Roberts enjoy riparian rights within an area of Lake Maxinkuckee that is 100.31 feet wide and extends into Lake Maxinkuckee for a distance that is reasonably required to exercise those rights. Beachview enjoys riparian rights within an area of Lake Maxinkuckee that is 54.5 feet wide and extends into Lake Maxinkuckee for a distance that is reasonably required to exercise those rights. Harbour enjoys riparian rights within an area of Lake Maxinkuckee that is 245.38 feet wide and extends into Lake Maxinkuckee for a distance that is reasonably required to exercise those rights.

127. As was explained in Bath, until that decision, there was "no set rule in Indiana for establishing extension of boundaries into a lake," as between riparians. However, the Indiana Court of Appeals in Bath adopted the Wisconsin methods articulated in Nosek v. Stryker, supra, for defining riparian rights. Rufenbarger v. Lowe, 9 Caddnar 150 (2004).

128. The Nosek court established three methods for determining riparian rights. First, as was the factual scenario in Bath, where the course of a shoreline approximates a straight line and the onshore property division lines are at right angles with the shore, the boundaries extending into the lake are determined by simply extending onshore property division lines into the lake. Second, when boundary lines on lakeshore property are not at right angles with the shore but approach the shore at obtuse or acute angles, it is inappropriate to apportion riparian tracts by extending onshore boundaries. Instead, division lines should be drawn in a straight line and at a right angle to the shoreline without respect to the onshore boundaries. Third, when the shoreline of a lake is irregular and it is impossible to draw lines at right angles to the shore to accomplish a just apportionment of adjacent landowners' riparian rights, then boundary lines should be run in such a way as to divide the total navigable waterfront in proportion to the actual shoreline of each owner taken according to the general trend of the shore.

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129. In Krivak v. DNR, Dempsey et al., 6 CADDNAR 176 (1994), the Commission applied Nosek to find that the most direct and expedient manner for pier placement is at the same angle as of the neighbors.

130. The appropriate approach to be applied in this case in the interests of safety, navigability, equity, and just apportionment of riparian rights for the parties to this matter and to their adjoining neighbors is Nosek's right angle to the shoreline, or perpendicular to the shoreline, approach. Thus, each of the parties' riparian zones shall be bounded by two lines as demonstrated in Exhibit 19, extending in a generally easterly direction and perpendicular to the relevant portions of the shoreline of Lake Maxinkuckee, which commences at the two points formed where the land described above intersects with the shoreline of Lake Maxinkuckee.

131. Of note are the facts that, in 2004 Beachview pier's was placed approximately perpendicular to the shoreline; and Harbour's piers have historically been placed approximately five degrees from perpendicular to the shoreline; but Roberts' pier has not been perpendicular to the shoreline and has been angled northward. Also of note are the facts that Harbour's northern neighbors' piers historically have been perpendicular to the shoreline, and the Roberts' southern neighbors' piers have been perpendicular to the shoreline.

132. The Commission lacks jurisdiction over Harbour's northern neighbors and the Roberts' southern neighbor because they were not parties to the proceeding. The undersigned judge denied Harbour's Motion For Joinder Of Persons Needed For Just Adjudication filed on August 27, 2004, and further denied Harbour's motion to join the northern neighbors during the final hearing because complete relief can be afforded as outlined herein without joining additional parties. However, the evidence is persuasive that a domino effect would result with the Harbour and its northern neighbors if riparian rights were defined using the long lake method.

133. The Roberts' application suggests that the first method for determining riparian rights articulated by Nosek should be applied here. However, unlike the circumstances noted in Nosek, and present in Bath, the property lines at issue in this case do not meet the shoreline at right angles. The property lines at issue are acute or obtuse angles. The Roberts' southern property line comes the closest to approximating a right angle with the shoreline. However, none of the other property lines at issue between the three property owners approximate a right angle. Indeed, the Roberts' property lines, contrary to the property lines of the other owners, run in opposite directions. As a result, were the property lines extended as the Roberts request in their application, they would benefit at the expense of the other parties. This is not equity. As a result, this approach is rejected.

134. In addition, if the piers were placed as the Roberts request in their 2004 application, the Roberts' northern pier would affect Beachview's ingress and egress, as well as the ingress and egress of Beachview's boating friends. Likewise, if Beachview's pier was placed at the angle requested under Beachview's "long lake" method of defining riparian zones, the placement would affect Harbour's ingress and egress and the ingress and egress of its boating friends. Harbour's northern riparian line and northern pier also would cross the historic placement of the Martindales' pier and could result in a domino effect with four northern neighbors.

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135. No party advocates the adoption of the third method applied in Nosek, which Lieutenant Sullivan defined as the proportional method. Indeed, the proportional method is not applicable here. The parties have stipulated that Lake Maxinkuckee is essentially oval and that the properties at issue are not located within a cove or unusual configuration. Moreover, as Lieutenant Sullivan, Lieutenant Taylor, Lake Maxinkuckee aerial photograph (Exhibit 19) and other witnesses explained, the shorelines are not irregular and are approximately straight, and it is possible to apply NOSEK'S second method of drawing boundaries perpendicular to the shoreline and accomplish just apportionment

136. Moreover, the proportional method applied in Nosek relies on a rule of law well developed in Wisconsin law known as the "line of navigability." This rule has not been imported into Indiana law to date.

137. Beachview advocates that the Court follow the "long lake" method, and the Roberts seemed to advocate at the hearing the same method, as depicted in Exhibits 16B and 20, both of which are demonstrative exhibits only and do not set out exact riparian boundaries.

138. The "long lake" method has not been adopted by any Indiana court or the Commission. Moreover, the method applies to accretion or avulsion cases only. The parties agree that this is not an accretion or avulsion case.

139. The "long lake" method does not consider the use, safety, or public trust, and it is inconsistent with Indiana law, which establishes that a lake owner's riparian zone does not extend to the middle of the lake. Bath v. Courts, 459 N.E.2d 72 (1984). The "long lake" or "center of the lake" theory promoted by Beachview is contrary to Indiana law and will not be applied in this matter. "One point is well-settled . . . the boundaries of riparian property do not extend to the middle of the lake." Zappfe v. Srbeny, 587 N.E.2d 177, 180 (Ind. App. 1992), citing Bath v. Courts, 459 N.E.2d 72, 75 (Ind. App. 1984); Stoner v. Rice, 121 Ind. 51, 22 N.E.968 (Ind. 1889). In Bath, the Court applied Stoner as the basis for its rejection of the method of extending riparian rights from the shoreline to the middle of a riverbed when determining riparian (actually, littoral) rights on an enclosed lake, because application of this rule to an enclosed lake would exclude some owners from title to any of the waterbed. Id. The Bath and Stoner courts further based their ruling because earlier determinations concerning riparian rights on rivers "depended to a great extent upon whether the lake was navigable", and Indiana "statutory law [including the Lakes Preservation Act] renders such determination unnecessary". Id.

140. There also is no evidence that the long lake method would increase the safety or navigability of Lake Maxinkuckee, or would otherwise better protect the public trust doctrine than the perpendicular approach outlined in herein.

141. In seeking a ruling which addresses "backup zones" and shared spaces, the parties have invited this judge to consider temporal factors of watercraft choice and placement of watercraft on the respective piers in making a determination of riparian rights.

A boat upon the water constitutes a lake usage that is exclusive or nearly so. When actively used for transportation, fishing, hunting, or any of a number of other recreational activities, this exclusive usage is temporal. When a boat is

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moored to a pier, the consequences of the usage are similar to those of the pier, and the boat essentially becomes an extension of the pier. Mooring a boat is an exercise of proprietary rights and would typically be unreasonable in the same locations where a pier would be unreasonable. If the location of a pier were to violate the "reasonableness" test, typically a boat moored in that same location would also violate the "reasonableness" test.

Barbee Villa Condominium Owners Ass'n v. Shrock, 10 CADDNAR 23 (2005).

Similarly to Indiana, Michigan uses a 'reasonableness' test to govern the interests among riparian owners on inland lakes. The surface may be used for boating, swimming, fishing and similar purposes as long as they do not interfere with reasonable uses by other riparian owners. In applying the 'reasonableness' test, Michigan has determined use of a pier may be limited to loading and unloading a boat, if the limitation is needed to allocate waters for reasonable use by another riparian owner.

Barbee Villa, citing Piering v. Ryan and Caso, 9 CADDNAR 123 (2003), West Michigan Dock v. Lakeland Inv., 534 N.W.2d 2121 (Mich. App. 1995).

142. In Piering and in Barbee Villa, the Commission determined that "to fully enjoy their riparian rights, the Claimants need ready ingress and egress to their pier and their shoreline. That enjoyment any reasonably require temporary usage of the waters of a public freshwater lake, located in the riparian areas of . . . neighbors, "for the purposes of loading and unloading a boat. The temporary use of this nature does not reasonably infringe upon . . . riparian rights . . . and is consistent with the Lakes Preservation Act", while permanent moorage would violate the "reasonableness" test. Id.

143. Any theory advocated by the parties that the Commission should adjust its determination of the parties' respective areas of riparian rights based upon the placement of watercraft of specific lengths on particular sides of the parties piers would place an unreasonable burden upon the Department in its administration of the Lakes Preservation Act and relevant rules, as watercraft choice and placement is too temporal of a factor to be determined in a pier permit. Instead, relevant watercraft operation laws require the parties, and any persons enjoying the recreational and navigational qualities of any lake, to adjust their conduct, watercraft use and placement to circumstances exigent at time of use.

144. The parties may enter into written agreements among themselves to allow usage of a party's riparian boundaries by another party, so long as such agreement and usage does not affect those who are not parties to such an agreement, including the public.

MARSHALL SUPERIOR COURT 1 ORDER (CAUSE NO. 50D01-0508-MI-5):

This matter is before the Court on Petitioner's Verified Petition for Judicial Review filed on August 16, 2005, pursuant to I.C. 4-21.5-5-2. All parties have filed their briefs in compliance with the Joint Case Management Plan and Extensions as agreed to by the parties or by Court Order.

On April 28, 2006, Petitioners filed their Brief in Support of Verified Petition for Review.

On July 17, 2006, Respondents, Glen and Martha Roberts filed their Brief.

On July 18, 2006, Respondents, Department of Natural Resources and Harbour Condominium Association filed their Joint Opposition to Petitioner's Petition for Review and Petitioner's Brief in Support of Verified Petition for Review.

On August 18, 2006, the Petitioners filed their Reply Brief.

The cope [sic., scope] of judicial review of an agency action is established by I.C. 4-21.5-5-14 which reads:

42-21.5-5-14 Burden of demonstrating invalidity of agency action -Standards For determining validity – Findings of fact – Granting of relief upon determination of prejudice.

1. The burden of demonstrating the invalidity of agency action is on the party to the judicial review proceeding asserting invalidity.
2. The validity of agency action shall be determined in accordance with the standards of review provided in this section, as applied to the agency action at the time it was taken.
3. The Court shall make findings of fact on each material issue on which the Court's decision is based.
4. The Court shall grant relief under section 15 [IC 4-21-5-5-15] of this chapter only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:

1. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
2. Contrary to constitutional right, power, privilege, or immunity;
3. In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
4. Without observance of procedure required by law; or
5. Unsupported by substantial evidence.

The Court has reviewed all filings and exhibits presented to the Court for its consideration. In the final analysis, it is this Court's determination that the decision made by the Natural Resources Commission was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Furthermore, the Final Order of the Natural Resources Commission was supported by substantial evidence and was not contrary to the evidence submitted.

IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that the Petition for Review is DENIED and the Natural Resources Commission's decision should be affirmed.

SO ORDERED this 25th day of January 2007.