[CITE: Sedberry v. Department of Natural Resources, 10 CADDNAR 14 (2005)]
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Cause #: 04-118W
FINAL ORDER
The denial by the Department of Natural Resources of Application PL-19721, as sought by Dan T. Sedberry under IC 14-26-2 and 312 IAC 11, is affirmed.FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Statement of the Proceeding
1. North Chain Lake (also sometimes referred to as Bass Lake) in St. Joseph County, Indiana is a "public freshwater lake" as the phrase is defined at IC 14-26-2-3 and at 312 IAC 11-2-7. North Chain Lake is subject to IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act") and rules adopted by the natural resources commission (the "Commission") at 312 IAC 11 to assist in the implementation of the Lakes Preservation Act.
2. The Lakes Preservation Act does not eliminate riparian rights. Zapfee v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992) and Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984). The law is stated succinctly by the Court of Appeals of Indiana in Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001). 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 to recreational values upon the lakes." The Court further observed that "Riparian landowners...continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public's rights."
3. The department of natural resources (the "DNR") is the agency charged with administration of the Lakes Preservation Act.
4. Dan T. Sedberry ("Sedberry") is a riparian owner of property located along North Chain Lake. The "subject property" is more particularly described as 54485 Longwood Drive near South Bend, Warren Township, St. Joseph County (NE 1/4, SE 1/4, SE 1/4, NE 1/4, Section 35, Township 38 North, Range 1 East in the South Bend Quadrangle).
5. Sedberry filed an application with the DNR's Division of Water, for approval under the Lakes Preservation Act, to dredge an area within the shore line or waterline of Chain Lake and adjacent to his land. In the application, Sedberry requested to perform "maintenance dredging and weed removal, extending a maximum of 20 feet lake ward to restore the legal shoreline (bank) and facilitate recreational use" along "75 feet of shoreline on the north bank of Chain Lake".
6. The DNR's Division of Water designated Sedberry's application as "Application PL-19721".
7. As part of its review of Application PL-19721, the DNR caused Fisheries Biologist, Robert Robertson ("Robertson"), to perform a site inspection in Sedberry's presence on May 5, 2004.
8. During the site inspection, Robertson
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determined the area along the subject property, and within the shoreline of North Chain Lake, was a "significant wetland".
9. The Commission has, by rule, defined "significant wetland" for the purposes of the Lakes Preservation Act. As applicable to this proceeding, a "significant wetland" is "a transitional area between terrestrial and deepwater habitats containing at least...two thousand five hundred (2,500) square feet of contiguous, emergent vegetation or rooted vegetation with floating leaves landward or lakeward of the legally established or average normal waterline or shoreline. The areal extent of the vegetation is independent of ownership."[FOOTNOTE A.] 312 IAC 11-2-24.
10. Robertson suggested Sedberry extend a pier 60 feet from the shoreline to provide lake access, but Sedberry rejected this approach because he believed it was too expensive.
11. On May 17, 2004, Robertson forwarded a "DNR Memorandum" in which he described the site and analyzed the likely consequences if Application PL-19721 were to be granted. Robertson stated in pertinent part:
The area to be dredged is part of a significant wetland. This wetland extends out into the lake approximately 60 feet along most of the northern most bay of the main part of North Chain Lake. There are only a few cuts through the vegetation along the shore of the bay where power boats go to and from existing docks. Sediment accumulation in this area does not appear to be due to unusual erosion or deposition from an inlet. At the time of the inspection the lake was approximately 12" below normal water level.
RECOMMENDATION: The area in question is a significant wetland, therefore the [Division of Fish and Wildlife of the DNR] recommends denial of this application. The applicant should be encouraged to dock out over the wetland to provide boating access to open water.
12. On June 3, 2004, the DNR sent a written "Denial Notice" to Sedberry in which the agency indicated Application PL-19721 was denied because "as determined by the [DNR's] Division of Fish and Wildlife, [Sedberry's] project site occurs within a shoreline category that is considered a 'Significant Wetland'; this project will damage aquatic plant beds; dredging this area will result in direct and cumulative impacts on the natural resources and natural scenic beauty of the lake."
13. On June 12, 2004, Sedberry filed a timely written request with the Commission for administrative review of the DNR's denial of Application PL-19721.
14. The Commission is the "ultimate authority" under IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") for the DNR. IC 14-10-2-3. The Commission has adopted rules at 312 IAC 3-1 to assist in its implementation of AOPA.
15. The Lakes Preservation Act is subject to administrative review by the Commission under AOPA. The Commission has jurisdiction over the subject matter and over the persons of the parties under AOPA and 312 IAC 3-1.
B. Standards on Administrative Review
16. The Commission appoints administrative law judges from a division of hearings to assist in the implementation of responsibilities on administrative review. The Commission's administrative law judges conduct prehearings, status
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conferences, hearings, and other stages of a proceeding. IC 14-10-2-3 and 312 IAC 3-1.
17. At each stage of a proceeding, the 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). The burden of persuasion and the burden of going forward are sometimes collectively referred to as the burden of proof. A person seeking the benefit of a license has the burden of proof for entitlement to the license. Indiana DNR v. United Refuse Co., 615 N.E.2d 100 (Ind. 1993) and Ind. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991).
18. In performing administrative review on behalf of the Commission, an administrative law judge is required to make findings of fact based on competent evidence admitted at the hearing. "Upon proper objection, the administrative law judge shall exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts. In the absence of proper objection, the administrative law judge may exclude objectionable evidence.... [If hearsay] evidence is properly objected to and does not fall within a recognized exception to the hearsay rule, the resulting order may not be based solely upon the hearsay evidence." IC 4-21.5-3-26. "Findings must be based exclusively upon the evidence of record in the proceeding and on matters officially noticed in the proceeding." IC 4-21.5-3-27.
19. An administrative law judge must independently weigh the competent evidence and make findings based exclusively on the record. The hearing is properly conducted de novo. Indiana DNR v. United Refuse cited previously. Pursuant to IC 4-21.5-3-27(a) and IC 4-21.5-3-27(b), the administrative law judge performs a duty similar to that of a trial judge sitting without a jury. An administrative law judge who gives deference to an agency's interpretation of a statute has not conducted the appropriate de novo review. Indiana-Kentucky Elec. v. Commissioner, IDEM, No. 49A02-0406-CV-515 (Ind. App. 2005).
20. Sedberry has the burden of proving, by competent evidence at hearing, that he is entitled to the benefits of a Lakes Preservation Act license as sought in his application. The administrative law judge must make findings of fact based upon competent evidence in a de novo review. If the preponderance of evidence shows that Application PL-19721 is legally supported, the license must properly be granted.
C. Application of the Lakes Preservation Act to Application PL-19721
21. Today's Lakes Preservation Act originated with legislation enacted in 1947. Acts 1947, c. 181; and, Acts 1947, c. 301. There have since been numerous statutory amendments, and in many instances, the statutes are now also implemented through rules. Yet reference to the founding precepts of the legislation offers modern insight into proper application of the Lakes Preservation Act.
22. Of particular note to the current proceeding are Acts 1947, c. 301, that were approved on March 13, 1947, and that provided in pertinent part:
...The natural resources and the natural scenic beauty of Indiana are declared to be a public right, and the public of Indiana are declared to have a vested right in the preservation, protection and enjoyment of all of the public fresh
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water lakes, of Indiana in their present state, and the use of such waters for recreational purposes.
...For the purpose of this act, the natural resources of public fresh water lakes shall mean the water, fish, plant life and minerals and the natural scenic beauty shall mean the natural condition as left by nature without man-made additions or alterations.....
....
...It shall be unlawful for any person...to encroach upon the...shore line of any such lakes as now exist...by excavating...below the water or shore line which had existed during the past ten years from the time of the passage of this act, without first securing written approval of the Indiana Department of Conservation.[FOOTNOTE B.]
23. Beginning in 1947, this legislation required an agency license before a person could lawfully excavate material from a public freshwater lake. Generally, a license should not be approved that would change the lake's "natural condition" from that which existed on March 13, 1937. "Natural condition" referred to the "water, fish, plant life and minerals and the natural scenic beauty...as left by nature without man-made additions or alterations...."
24. An applicant may qualify for a license to excavate or dredge materials from the bed of a public freshwater lake, if the applicant demonstrates the excavation or dredging would not change the lake's "natural condition" as it existed on March 13, 1937.
25. Sedberry purchased the subject property in May 2000. The area was in a derelict condition and suffered from years of inappropriate waste disposal.
26. At considerable expense and using the labor of his family and himself, Sedberry set about restoring the condition of the subject property. He removed two forty-cubic-yard dumpsters of trash and construction materials from the house and the adjacent real estate.
27. Sedberry discovered tires and vehicle body parts in the significant wetland. On January 7, 2004, he walked onto the partially frozen surface of the wetland and collected a twelve-volt lead acid battery, a sump-pump motor, a household radio, an automobile radio, and a five-gallon oil can. At hearing, Sedberry offered correspondence from neighbors confirming the presence nearby of batteries, tires, 55-gallon drums, oil filters, and empty or broken beverage bottles. Claimant's Exhibit 7 through 9.
28. The materials described in Finding 27 were not elements of the "natural condition" of North Chain Lake. Indeed, they markedly detract from the enjoyment of its "natural condition". Robertson testified their removal was acceptable and that the DNR did not require a license application for the removal, by hand, of such materials.[FOOTNOTE C.]
29. On cross-examination, Robertson testified the DNR would license the dredging or excavation of a significant wetland upon a showing of either of two circumstances: (1) the area under consideration is a "legal channel"; or, (2) the area contains recently deposited sediment that is attributable to human activities. He said an example of the latter was sediment entering the lake as run-off from a nearby construction project.
30. Sedberry offered no evidence tending to support a finding that Application PL-19721 should be approved to maintain a legal channel.
31. As a matter of law, "recently deposited sediment" is found to potentially include any sediment attributable to a human activity occurring since March 13, 1937.
32. Sedberry offered no evidence tending to support a finding that Application PL-19721 should be approved to
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remove recently deposited sediments attributable to human activities.
33. On cross-examination, Sedberry testified he did not know what other items might be buried in the wetland. From his observation of the subject property, and from discussions with neighbors who had lived in the community for many years, he believed there likely were other items.
34. Upon an adequate factual demonstration, a license may be approved to excavate waste disposed in the bed of a public freshwater lake. The removal of contaminated earthen materials may be included in, or independently the subject of, a license under the Lakes Preservation Act. An example of contaminated earthen material is lead originating from a vehicular battery.
35. On cross-examination, Sedberry testified he had not tested the soil content of the lake along the subject property.
36. Sedberry has not offered an adequate factual basis to support a finding that Application PL-19721 should be approved to remove waste or contaminated earthen materials.
37. Another legal basis upon which the excavation of materials may be supported is for the maintenance of a lawful nonconforming use. 312 IAC 11-5-2 construed in Brown and Zeller,et al. v. DNR, 9 Caddnar 136 (2004).
38. At hearing, Sedberry offered evidence that formerly a pier on the subject property assisted with access to the lake. Excavation may have been performed in association with placement of the pier. If so, and if construction and excavation were performed lawfully, Sedberry might properly base a license application upon their maintenance.
39. The evidence was, however, of a general nature. There was no reference to the length or configuration of the pier or to the location of any excavation conducted in association with the pier. In order to justify the maintenance of a lawful nonconforming use, an applicant must identify the footprint of the usage.
40. Similarly, there was no reference to when the pier was constructed and when any excavation undertaken. The timing of these activities is essential to showing that they complied with the contemporary regulatory structure and were lawful.
41. Sedberry has not offered evidence with sufficient specificity to support a finding that Application PL-19721 should be approved to dredge the wetland for the maintenance of a lawful nonconforming use.
42. Several possible legal justifications have been identified that might support the approval of Application PL-19721. These include the following:
(1) The maintenance of a legal channel.
(2) The removal of sediment attributable to human activities since March 13, 1937.
(3) The removal from the lakebed of improperly disposed waste, including the removal of earthen materials contaminated by the waste.
(4) The maintenance of a lawful nonconforming use.
43. Sedberry has the burden of presenting evidence sufficient to establish one or more of these justifications. The evidence offered at hearing was insufficient to establish any of them in support of Application PL-19721.
44. Without obtaining a license, however, Sedberry has and may continue to remove materials from the significant wetland by hand.
D. Subnormal Water Elevation of North Chain Lake
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45. Although not providing measurements, both parties acknowledge that the surface elevation of North Chain Lake is currently subnormal.
46. Robertson testified "the area in question...has been experiencing low water." Neighbors confirmed this perspective in correspondence. Kenneth Klockau wrote that a "low water table" was a contributing factor for the inability at the subject property, within the last five years, to bring in a boat or to fish from shore. Claimant's Exhibit 7. Molly Kline stated, "the lake water is way down...." Claimant's Exhibit 8. Similarly, Bryan Zentmire stated, "after 4 straight years of drought (going on 5) we find that our dock no longer reaches deep enough to be able to float our boat and some of the time does not even reach the waters edge." Claimant's Exhibit 9.
47. Either abnormally high or abnormally low water levels can influence immediate perspectives as to what construction activities are desirable within a public freshwater lake. In enacting the Lakes Preservation Act, the Indiana General Assembly adopted a regulatory structure with the definition of a fixed "shoreline or water line" rather than one that fluctuates with high and low water levels. IC 14-26-2-4. Licensure is to be performed primarily with a view to the long-term environmental health of public freshwater lakes. In general, the Lakes Preservation Act anticipates licensure will be based upon the condition of a lake while at or near its ordinary surface elevation.
48. Factors might be identified that would support licensure to address problems peculiar to, or aggravated by, flood or drought. Possible supporting factors include a hazard to public safety or a dramatic loss of recreational usage. The evidence here does not support these factors.
49. The drought that has caused a subnormal water level on North Chain Lake is likely to moderate or dissipate over time. The drought cannot properly be a major consideration in the review of Application PL-19721. The evidence does not support the approval of Application PL-19721 based upon the current drought.
E. Conclusion
50. During a de novo hearing, Sedberry has not proven, by competent evidence, that he is entitled to the benefits of a Lakes Preservation Act license as sought in Application PL-19721. In order to achieve license approval, he must provide a project justification that is legally and factually consistent with the purposes of the Lakes Preservation Act and with 312 IAC 11.
FOOTNOTES:
A. 312 IAC 11-2-24 contains five alternative conditions that may constitute a "significant wetland", but only the condition set forth in subdivision (1) is relevant here. Also, at hearing, Sedberry offered Application #FW-22517 for a construction activity along Trail Creek in LaPorte County. Application #FW-22517 seeks to excavate a portion of a wetland under IC 14-28-1 (sometimes referred to as the "Flood Control Act"). Neither the Flood Control Act, nor rules adopted at 312 IAC 10 to assist in the administration of the Flood Control Act, define "significant wetland". The values to be protected by the Lakes Preservation Act vary in some regards from those to be protected by the Flood Control Act. They are two distinct regulatory programs. As a consequence,
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FW-22517 is of very limited probative value to the instant proceeding. Whatever was the DNR's final disposition of FW-22517, that disposition is not controlling here.
B. In 1965, the functions of the Department of Conservation were transferred to the Department of Natural Resources. Acts 1965, c. 44.
C. In effect, the DNR has determined the removal of materials by hand is an activity "unlikely to pose more than a minimal potential for harm" under IC 14-26-2-23(3) and has exempted the activity from licensure.