CADDNAR


[CITE: Sims, et al. v. Outlook Cove LLC, et al., 10 CADDNAR 258 (2006)]

 

[VOLUME 10, PAGE 258]

 

Cause #: 04-202W

Caption: Sims, et al. v. Outlook Cove, LLC and Outlook Cove Homeowners Ass’n

Administrative Law Judge: Lucas

Attorneys: Snyder; Volk

Date: July 19, 2006

 

[NOTE: ON AUGUST 17, 2006, OUTLOOK COVE, LLC AND OUTLOOK COVE HOMEOWNERS ASSOCIATION FILED FOR JUDICIAL REVIEW IN THE LAPORTE SUPERIOR COURT #4 (46D04-0608-MI-253). ON MARCH 27, 2007, THE LAPORTE SUPERIOR COURT DISMISSED, ON MOTION, THE DEFENDANT NATURAL RESOURCES COMMISSION. NOVEMBER 2007, LA PORTE SUPERIOR COURT ENTERED ITS ORDER AFFIRMING FINAL ORDER OF THE COMMISSION'S AOPA COMMITTEE.]

Final Order

 

Pine Lake in LaPorte County is a “public freshwater lake” and is subject to the regulatory authority of the Department of Natural Resources under IC 14-26-2 and 312 IAC 11.  Thomas G. Sims and Rhoda A. Sims are riparian owners of a parcel, and Outlook Cove, LLC and Outlook Cove Homeowners Association are riparian owners of a parcel, of adjacent real estate along Pine Lake in an area known as Outlook Cove.  The boundary of their respective riparian rights extends into Pine Lake at the same bearing (N 89º 17’ 57” W) as exists for the parcels where their shared property line intersects the shoreline or water line of Pine Lake.  A pier, pier extension, boat lift, similar structure or moored boat must not be located closer than ten feet from this riparian boundary.

 

 

Findings of Fact and Conclusions of Law

 

Background

 

1.      Thomas G. Sims and Rhoda A. Sims (collectively “the Simses”) filed their “Petition for Administrative Review” with the Natural Resources Commission (the “Commission”) on November 3, 2004.  The petition sought the resolution of a dispute between the Simses and Outlook Cove, LLC and Outlook Cove Homeowners Association (collectively “Outlook Cove, LLC and Ass’n”) as to riparian rights for the placement of piers on Pine Lake in LaPorte County, Indiana.  The petition was filed with the Commission and subsequently served upon Outlook Cove, LLC and Ass’n.

 

2.      This proceeding is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”).  The Commission has adopted rules at 312 IAC 3-1 to assist with its implementation of AOPA.

 

3.      The Department of Natural Resources (the “DNR”) moved on February 5, 2005 to intervene.  The Simses and Outlook Cove, LLC and Ass’n both filed written notices of non-objection to the intervention.  The Commission’s Administrative Law Judge added the DNR as a party on February 14, 2005.

 

4.      On February 24, 2005, Outlook Cove, LLC and Ass’n filed their “Memorandum in Support of Motion to Dismiss (Converted to Motion for Summary Judgment)” with attachments. 

 

[VOL. 10, PAGE 259]

 

5.      The DNR filed the “Intervenor’s Response to Respondents’ Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment” with attachments on March 23, 2005.

 

6.      The Simses filed the “Response to Respondents’ Motion for Summary Judgment and Motion for Summary Judgment” with attachments on March 28, 2005. 

 

7.      The “Consolidated Reply by Outlook Cove, LLC and Outlook Cove Homeowners’ Association to Memoranda Filed by Claimants and Intervenor” was filed on April 11, 2005. 

 

8.      With respect to the “Consolidated Reply”, the Simses filed their “Motion to Strike or in the Alternative for Additional Time to Respond” on April 13, 2005. 

 

9.      The Administrative Law Judge made an “Entry with Respect to Claimants’ Motion to Strike or in the Alternative for Additional Time to Respond” on April 15, 2005 in which the Simses and the DNR were provided until May 11, 2005 to respond to any new issues raised with respect to the April 11 “Consolidated Reply”. 

 

10.  On May 9, 2005, the Simses filed their “Motion to Strike Affidavit of Donald L. Porter”, their “Motion to Strike Affidavit of Robert Magnuson”, their “Supplemental Designation of Documents”, the “Affidavit” of Thomas G. Sims with multiple attachments, and their “Supplemental Memorandum in Opposition to Respondents’ Motion for Summary Judgment”. 

 

11.  On May 11, 2005, the “Intervenor Department of Natural Resources’ Supplemental Filing of Exhibits and Designation of Materials in Support of Intervenor’s Response to Respondents’ Motion for Summary Judgment and Cross-Motion for Summary Judgment” with “Affidavit of Tina Everling” and attachments were filed. 

 

 

Summary Judgment

 

12.  Hearing on the motions for summary judgment was held as scheduled in Michigan City on June 21, 2005. 

 

13.  On July 15, 2005, the Administrative Law Judge entered “Findings of Fact and Conclusions of Law with Interlocutory Order of Partial Summary Judgment”.  The interlocutory order is merged here. 

 

[VOL. 10, PAGE 260]

 

14.  In addition, the Simses filed a “Motion to Limit Evidence at Final Hearing Based upon the Partial Summary Judgment Entered on July 15, 2005”.  The “Respondents’ Motion to Reconsider” was filed on November 15, 2005.  “Claimants’ Response in Opposition to Respondents Motion to Reconsider” was filed on November 21, 2005.  The “Reply to Claimants’ Response to Opposing Respondents’ Motion to Reconsider” was filed on November 20, 2005.  The Administrative Law Judge issued an “Order Granting Claimants’ Motion to Limit Evidence at Hearing and Denying Respondents’ Motion to Reconsider” on December 13, 2005.  Elements of the December 13 order, which may provide clarification or supplementation to the interlocutory order described in the prior Finding, are also merged here.

 

15.  AOPA establishes procedures for summary judgment at IC 4-21.5-3-23.  This statutory section provides:

 

(a)     A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.

 

(b)     The motion must be served at least five (5) days before the time fixed for the hearing on the motion. The adverse party may serve opposing affidavits before the day of hearing. The administrative law judge may direct the parties to give oral argument on the motion. The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon fewer than all the issues or claims (such as the issue of penalties alone) although there is a genuine issue as to damages or liability, as the case may be. A summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order. The administrative law judge shall designate the issues or claims upon which the judge finds no genuine issue as to any material facts. Summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the administrative law judge may make any order that is just.

 

(c)    If on motion under this section no order is rendered upon the whole case or for all the relief asked and a hearing is necessary, the administrative law judge at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating any person, shall if practicable

[VOL. 10, PAGE 261]

 

 ascertain:
(1) what material facts exist without substantial controversy; and
(2) what material facts are actually and in good faith controverted.
The administrative law judge shall then make an order specifying the

facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just. Upon the hearing of the action, the facts specified are established in the judge’s order under this subsection.

 

(d)    Supporting and opposing affidavits must:
(1) be made on personal knowledge;
(2) set forth facts that are admissible in evidence; and
(3) show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.

 

(e)    The administrative law judge may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or testimony of witnesses.

 

(f)     If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party’s pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth specific facts showing that there is a genuine issue in dispute. If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party.

 

16.  An administrative law judge may apply the Trial Rules where not inconsistent with AOPA.  312 IAC 3-1-10.  Reference may generally be made to Trial Rule 56 and to reported decisions based upon Trial Rule 56.  In those instances where Trial Rule 56 is inconsistent with IC 4-21.5-3-23, however, the latter would control.

 

17.  Summary judgment can be granted when the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.  Shell Oil Co. v. Lovold Co., 705 N.E.2d 981 (Ind. 1988).

 

18.  “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.”  Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993).  “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.”  York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).

 

 

Application of the Lakes Preservation Act to Pine Lake and Outlook Cove

[VOL. 10, PAGE 262]

 

19.  The DNR has jurisdiction over activities regulated under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) within the “shoreline or water line” of a “public freshwater lake”.   The Commission has jurisdiction over these regulated activities on administrative review.  IC 14-10-2-3. 

 

20.  The Commission has adopted rules at 312 IAC 11-1 through 312 IAC 11-5 to assist with the implementation of the Lakes Preservation Act.  See, particularly, IC 14-26-2-4 and IC 14-26-2-23(2).

 

21.  Today’s Lakes Preservation Act originated with 1947 legislation.  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 by 312 IAC 11-1 through 312 IAC 11-5. Yet reference to the founding precepts of the legislation offers modern insight into proper application of the Lakes Preservation Act.  Of particular note to the current proceeding are Acts 1947, c. 301, which 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 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.....

22.  Beginning in 1947, this legislation required an agency license before a person could lawfully conduct regulated activities along or within a public freshwater lake.  A license could not be approved that would fundamentally 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....”  Sedberry v. Department of Natural Resources, 10 Caddnar 14 (2005).A.

 

23.  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). As stated 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 the 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.”

 

[VOL. 10, PAGE 263]

 

24.  The Commission has previously ruled that Pine Lake in LaPorte County is a “public freshwater lake”.  Gardner v. Department of Natural Resources and Taggert, et al., 7 Caddnar 192 (1997). 

 

25.  The DNR provides evidence for the proposition that Pine Lake, including the area at issue along an embayment known as Outlook Cove, is a “public freshwater lake” that is subject to IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5.  Affidavit of George C. Bowman (March 23, 2005) in his capacity as Assistant Director the DNR’s Division of Water.

 

26.  The DNR provides additional evidence through the Team Leader of the Customer Service Station of the DNR’s Division of Water.  Documents kept in the Division’s ordinary course of business include the following:

 

(A)   A license issued under the Lakes Preservation Act on August 14, 1962 to James K. Smith to dredge the bay of North Pine Lake.

(B)   A license issued under the Lakes Preservation Act on October 28, 1971 for Pine Lake.

(C)   Documents from the LaPorte Circuit Court in the Matter of the Establishment of the Water Level of Pine, Stone and Lilly Lakes in LaPorte County, Indiana (Cause No. 22084) order and maps entered on September 26, 1949.

 

       Affidavit of Tina Everling (May 11, 2005).

 

27.  The Simses also provide evidence in support of the proposition that Pine Lake, including Outlook Cove, is a “public freshwater lake” that is subject to the Lakes Preservation Act.

 

28.  The area known as “Outlook Cove” is connected directly to Pine Lake without obstruction.  Single-family dwellings front on Outlook Cove, and a marina containing a number of piers project into Outlook Cove.  The general public uses the marina to dock boats and for unfettered access to the entirety of Pine Lake.  Thomas Sims has observed the public use Pine Lake for more than 20 years.  The public has routinely used Outlook Cove for boating, fishing, and swimming.  Numerous persons have requested Thomas Sims to allow access to Outlook Cove through his property, and he has “routinely permitted this.”  He has rented his property to members of the general public who have used the adjacent waters of Outlook Cove for boating, fishing, and swimming.  At no time has Sims “witnessed any person prevent or attempt to prevent the use of…Outlook Cove by members of the general public.”  Affidavit of Thomas G. Sims (May 7, 2005) including aerial photographs attached as Exhibit D, Exhibit E, and Exhibit F.

 

[VOL. 10, PAGE 264]

 

29.  The 1956 Chamber of Commerce Map of LaPorte, Indiana contains a depiction of the boundaries of Pine Lake and includes the boundary of the area known as Outlook Cove.  Affidavit of Thomas G. Sims (May 7, 2005), Exhibit H.  The map is a representation of the reputation in the community of the property in question.  This reputation is admissible evidence in regard to reputation in a community, arising before the controversy, as to boundaries.  Rule 802(20) Ind. Rules of Evidence and 312 IAC 3-1-10.

 

30.  Outlook Cove, LLC and Ass’n do not contest that Pine Lake is a “public freshwater lake” but urge that Outlook Cove is not part of the public freshwater lake.  The position of Outlook Cove, LLC and Ass’n was stated most directly in another proceeding pending before the Commission, Outlook Cove v. Department of Natural Resources (Administrative Cause No. 05-057W): Outlook Cove, LLC “does not dispute that Pine Lake is a public freshwater lake subject to the Lakes Preservation Act.  By contrast, [it] maintains that the small body of water adjacent to [Outlook Cove, LLC’s] property…is not a ‘public freshwater lake.’  [It] maintains that said body of water, commonly referred to as Outlook Cove, is a separate body of water separate and distinct from Pine Lake.  This body of water is privately owned.  [Outlook Cove, LLC contends], by virtue of this private ownership, that this separate and distinct body of water is not subject to the Lakes Preservation Act.”   See “Response to Report of Prehearing Conference” filed on April 19, 2005.  Official notice is taken under IC 4-21.5-3-26(f)(2) of this statement by Outlook Cove, LLC.  Outlook Cove, LLC and Ass’n reiterated this position, during its oral argument on cross-motions for summary judgment, on June 21, 2005.

 

31.  Outlook Cove, LLC and Ass’n provide no factual or legal support for the proposition that a lake’s bay is a body of water distinct from the lake for purposes of the Lakes Preservation Act.  The proposition is inconsistent with the historic usage of Outlook Cove and Pine Lake and is inconsistent with the design of the Lakes Preservation Act.

 

32.  “The Indiana Legislature defines ‘public freshwater lake’ as ‘a lake that has been used by the public with the acquiescence of a riparian owner’.  [Citations omitted.]  The plain language of the statute merely requires the acquiescence of a single riparian owner.”  Garling v. Indiana Department of Natural Resources, 756 N.E.2d 1029, 1032 (Ind. Ct. App. 2001).

 

33.  In determining whether a manmade channel to a public freshwater lake was subject to the jurisdiction of the Lakes Preservation Act, the Commission observed:

 

The Lakes Preservation Act currently requires a license under IC 14-26-2-9 and IC 14-26-2-12 for the construction of a channel into a public freshwater lake.  As a condition precedent to granting a permit, the applicant must, in writing,

 

[VOL. 10, PAGE 265]

 

acknowledge that all additional water area created is part of the lake.  See particularly IC 14-26-2-9(b)(1).  If the Lakes Preservation Act or antecedent statutes were in effect when the channel was constructed, the person applying to construct the channel was required to dedicate its waters to Lake Wawasee [a public freshwater lake] and to the jurisdiction of the Lakes Preservation Act.  If the channel were constructed before the effective date of the Lakes Preservation Act or its antecedent statutes, then IC 14-26-2-5(c)(2) brought the channel under jurisdiction: “The…public of Indiana has a vested right in the...preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state.”  The “present state” of Lake Wawasee would have included the channel on the effective date of the Lakes Preservation Act.  In either event, the Lakes Preservation Act confers jurisdiction in the Department.

Herr v. Department of Natural Resources, 9 Caddnar 11 at 12 and 13 (2001).

 

34.  In enacting the Lakes Preservation Act, the Indiana General Assembly could have provided that the appropriate Circuit Court would identify the boundaries of a “public freshwater lake”.  The Legislature could have directed the Circuit Court to approve a metes and bounds survey that would permanently establish the delineation of the shoreline.  It did not. 

 

35.  Where the Circuit Court has established the legal elevation, “the line formed on the bank or shore by the water surface at the legally established average normal level” is the “shoreline or water line”.  IC 14-26-2-4(1).

 

36.  On September 26, 1949, the LaPorte Circuit Court established the legal elevation of Pine Lake, Stone Lake, and Lilly Lake in LaPorte County at 796.2 feet elevation sea level datum.

 

37.  The shoreline or water line of Pine Lake is the line formed on its bank or the shore at elevation 796.2 feet elevation sea level datum.

 

38.  Historic drawings, photographs, or other graphic depictions may have probative value in determining where the “shoreline or water line” for a particular public freshwater lake should be drawn.  These graphics are not dispositive for three reasons.  First, a depiction of a lake, while at other than its legal elevation does not accurately define the “shoreline or water line”.  Second, applying principles of riparian common law, accretion or erosion may change the location of “shoreline or water line”.  Third, by statute, the construction of a manmade channel in a public freshwater lake must be accompanied by a dedication of all additional water to the public.  Herr v. Department of Natural Resources, 9 Caddnar 11, discussed previously.

 

39.  The DNR and the Commission have jurisdiction over Pine Lake, under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, along and within the line formed on its bank or the shore at elevation 796.2 feet elevation sea level datum.

 

[VOL. 10, PAGE 266]

 

40.  The evidence is unrefuted that the shoreline of 796.2 feet would form an uninterrupted close that includes Outlook Cove within Pine Lake.

 

41.  For purposes of the Lakes Preservation Act, Pine Lake is a “public freshwater lake” and Outlook Cove is an integral part of Pine Lake.  The Lakes Preservation Act governs Outlook Cove to the shoreline or water line as established by the LaPorte Circuit Court at 796.2 feet elevation sea level datum.

 

42.  Indeed, if Outlook Cove were a private lake, both historic and prospective uses by its riparian owners would be incongruous.

 

43.  “A private lake is a body of water on the surface of land within the exclusive dominion and control of the surrounding landowners.”  Carnahan v. Moriah Property Owners Ass’n, 716 N.E.2d 437, 440 (Ind. 1999) quoting Freiburger v. Fry, 439 N.E.2d 169, 173.

 

44.  On a private lake, “each owner has the right to the free and unmolested use and control of his portion of the lake bed and water thereon for boating and fishing.”  Carnahan at 441 quoting Sanders v. De Rose, 207 Ind. 90, 95, 191 N.E. 331, 333 (1934).

 

45.  Where different persons own various parcels of a private lake, competing lakebed owners may exclude other lakebed owners from their respective parcels.  Carnahan at 441 citing Trowbridge v. Torabi, 698 N.E.2d 622, 627 (Ind. App. 1998).

 

46.  If Outlook Cove were a private lake, separate and distinct from Pine Lake, the use by riparian owners would be restricted to their respective private parcels of water-covered land.  The restriction would apply to single-family dwellings, as well as to the marina and to Outlook Cove LLC and Ass’n.  No party has provided any evidence to suggest practices that would be consistent with such restrictive usages.  Riparian owners, their guests and renters, are part of the whole community of Pine Lake, and they have exercised the enviable privileges of that community.  They have not acted consistently with the averment that Outlook Cove is a private lake.

 

47.  The material issues of fact are not in dispute.  Pine Lake is a “public freshwater lake” and subject to the Lakes Preservation Act and rules adopted under the Lakes Preservation Act.  Outlook Cove is part of Pine Lake. 

 

48.  The DNR has jurisdiction over the Outlook Cove under the Lakes Preservation Act, and rules adopted under the Lakes Preservation Act, to its shoreline or water line at 796.2 feet elevation sea level datum.  This jurisdiction rests with the Commission on judicial review.

 

 

[VOL. 10, PAGE 267]

 

Riparian Ownership of the Simses on Pine Lake

 

49.  Riparian doctrine is the system of law dominant in Great Britain and the eastern United States, including Indiana. Under the doctrine, the owners of lands along the banks of a river, stream, or lake, have the right to reasonable use of the waters and a correlative right protecting against unreasonable use by others that substantially diminishes the quantity or quality of water.  Riparian rights are the rights accompanying the ownership of land along the banks of a river, stream, or lake.  6 Waters and Water Rights 345 and 935 (The Michie Company 1991). 

 

50.  The Lakes Preservation Act authorizes a person who is the “owner of land abutting a public freshwater lake” to apply to the DNR for a license to change the shoreline or alter the bed.  The DNR may issue the license “after investigating the merits of the application.”  IC 14-26-2-9.  By implication, a person who is not an owner of land abutting a public freshwater lake does not qualify to seek a license under the Lakes Preservation Act for near shore activities.

 

51.  Within this statutory parameter, the Commission adopted a rule definition in 1990 for “riparian owner” that provided a shorthand description of the concept that is in harmony with the Lakes Preservation Act and the common law.  The definition was originally adopted as 310 IAC 6-2-12 and has since been recodified at 312 IAC 11-2-19:

“Riparian owner” means the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake. The term includes a littoral owner.

 

52.  The clause “or the owner of an interest in land sufficient to establish the same legal standing as the owner of land” recognizes that a person need not be the fee owner on lands abutting a lake in order to enjoy riparian rights.  Depending upon the terms of the document, an easement holder might enjoy riparian ownership.  Klotz v. Horn, 558 N.E.2d 1096, 1097 (Ind. 1990), citing Farnes v. Lane, 281 Minn. 222, 161 N.W. 2d 297, 301 (Minn.1968), and discussed in Rufenbarger v. Lowe, et al., 9 Caddnar 150, 151 (2004).  During oral argument on summary judgment, the parties agreed this clause has no application to the current proceeding.

 

53.  Otherwise, 310 IAC 6-2-12 (now 312 IAC 11-2-19) recognizes a riparian owner has privileges exceeding those of the general public with respect to construction activities in proximity to the shoreline.  The Commission documents this intent in responses to  public comments concerning the rule section made at final adoption:

 

Several questions and comments were received as to the rights of a riparian owner within 200 feet of the shoreline of a public freshwater lake.  Commentators asked whether the rights of a riparian owner were exclusive in that area.  The response was that their rights were not exclusive, but riparian ownership would be a prerequisite to the placement of structures in the 200-foot zone (examples: piers, sea walls, and underwater beaches).  Use of adjacent waters would be public.

 

[VOL. 10, PAGE 268]

 

“Report of Public Hearing, Analysis, and Recommended Order on Final Adoption of Proposed New Rule and Rule Amendments” (September 4, 1990), with rule approved by the Commission (October 10, 1990).

 

54.  In 2000, the Indiana General Assembly revisited the Lakes Preservation Act and affirmed the application of this legal framework.  The DNR could license a “riparian owner” to place a temporary or permanent structure or material or for the extraction of material pursuant to objective standards provided by rule.  P.L. 64-2000 as codified at IC 14-26-2-23.

 

55.  IC 14-26-2-9 and IC 14-26-2-3 place standing in persons owning land along a public freshwater lake to seek licenses, which do not excessively encroach upon the public trust, to conduct construction activities in furtherance of their enjoyment of riparian ownership.  By statute, a person who is not a “riparian owner” does not have standing to place structures along or near the shoreline.  312 IAC 11-2-19 is an acknowledgement of this statutory limitation.

 

56.  The Simses obtained title in a conveyance of land from Catherine L. Magnuson as evidence by two separate documents, a Memorandum of Contract and a Warranty Deed.

 

57.  The Memorandum of Contract provided in substantive part:

 

THIS MEMORANDUM made this 1 day of November 1996, by Catherine L. Magnuson as Seller, and THOMAS G. SIMS AND RHODA A. SIMS, husband wife, as Buyer, acknowledges as follows:

 

That CATERINE L. MAGNUSON, THOMAS G. SIMS AND RHODA A. SIMS, have entered into a Contract for the Sale and Purchase of Real Estate dated the 1 day of November, 1996, wherein CATHERINE L. MAGNUSON has agreed to sell to THOMAS G. SIMS and RHODA A. SIMS, the following described real estate in LaPorte County, Indiana, to-wit:

 

SEE ATTACHED EXHIBIT “A”

 

IN WITNESS WHEREOF, CATHERINE L. MAGNUSON, THOMAS G. SIMS, and RHODA A. SIMS have hereunto set their hands and seals the day and year first above written.

 

[Document Title, Signatures, Notarization, and Exhibit A omitted by the Commission]

 

 

[VOL. 10, PAGE 269]

 

58.  The Warranty Deed provided in substantive part:

 

THIS INDENTURE WITNESSETH, That Catherine L. Magnuson of LaPorte County, in the State of Indiana, CONVEY AND WARRANT to Thomas G. Sims and Rhoda A. Sims as tenants in the entireties of LaPorte County, in the State of Indiana, for and in consideration of the sum of TEN DOLLARS ($10.00) AND OTHER GOOD AND VALUABLE CONSIDERATION the receipt whereof is hereby acknowledged, the following described REAL ESTATE in LaPorte County, in the State of Indiana, to wit:

 

Parcel #1. A parcel of land in the Northeast 1/4 of Section 27, Township 37 North, Range 3 West, Center Township, LaPorte County, Indiana, more particularly described on Page 1 of attached Exhibit “A.”

 

Parcel #2.  A parcel of land in the Northeast 1/4 of Section 27, Township 37 North, Range 3 West, Center Township, LaPorte County, Indiana, more particularly described on Page 2 of the attached Exhibit “A.”

 

Parcel #3.  A parcel of land in the Northeast 1/4 of Section 27, Township 37 North, Range 3 West, Center Township, LaPorte County, Indiana, more particularly described on Page 3 of attached Exhibit “A.”

 

Subject to legal water elevation, zoning ordinances, restrictions and covenants, if any of record, and utility easement, if any of record.

 

IN WITNESS WHEREOF, The Catherine L. Magnuson has hereunto set her hand and seal, this 29 day of April, 1999.

 

[Document Title, Signatures, Notarization, and Exhibit A omitted by the Commission]

 

59.  Neither the Memorandum of Contract nor the Warranty Deed, on their faces, places any restriction on the conveyance of title to the real estate described in them.

 

60.  Outlook Cove, LLC and Ass’n claim a restriction on the conveyance that would deprive the Simses of riparian rights in a reference to a September 30, 1996 letter from Edward L. Janes to Jeffrey B. Katz.  The letter involves negotiations that preceded the Memorandum of Contract and the Warranty Deed.

 

61.  Outlook Cove, LLC and Ass’n do not allege fraud or mistake in the preparation or execution of the Memorandum or Contract and the Warranty Deed.  Neither do they provide evidence either document was on its face ambiguous.

 

62.  The execution and delivery of the Warranty Deed from Catherine L. Magnuson to the Simses merges all previous negotiations regarding what is being sold and conveyed.  See Wayne International Building and Loan Association v. Beckner, 134 N.E. 273 (Ind. 1922).

 

[VOL. 10, PAGE 270]

 

63.  This issue was more recently address by the Indiana Court of Appeals in Link v. Breen, 649 N.E.2d 126 (Ind. App. 1995):

 

The doctrine of merger by deed provides:

 

“In the absence of fraud or mistake, all prior or contemporaneous negotiations or executory agreements, written or oral, leading up to the execution of a deed are merged therein by the grantee’s acceptance of the conveyance in performance thereof.”

 

64.  One of the emblements of fee simple title is riparian rights. Zapfee v. Srbeny, 587 N.E.2d 177, cited previously.  Unless the deed of conveyance specifically excludes riparian rights, all prior negotiations are merged into the deed.  A person with fee simple ownership along a lake has riparian rights.

 

65.  At oral argument on the cross-motions for summary judgment, the parties disputed where the legal elevation of Pine Lake at 796.2 feet would intersect the Simses’ property, although there was no dispute but that it would.

 

66.  The Simses are riparian owners along Pine Lake based upon the Warranty Deed they received from Catherine L. Magnuson.

 

 

Irrelevance to Instant Proceeding of the Term “Lake Owner” under the Freshwater Lakes Emergency Act

 

67.  Not every lake is a “public freshwater lake” that is subject to the Lakes Preservation Act.  For example, the Lakes Preservation Act exempts Lake Michigan from regulation at IC 14-26-2-3(b)(1).  Another example is that lakes located in Hammond, East Chicago, and Gary are exempted.  IC 14-26-2-3(b)(2) and 312 IAC 11-2-17.  Also, a lake may not qualify as a “public freshwater lake” because it has not “been used by the public with the acquiescence of a riparian owner.”  IC 14-26-2-3(a).

 

68.  Even though not subject to the Lakes Preservation Act, a lake may be subject to regulation by the DNR.  The regulation may be directed to balancing the private interests of and among riparian owners with those of the public.  The regulation may consider proprietary, environmental, and navigational concerns.  Again, Lake Michigan provides an example.  Lake Michigan is subject to IC 14-29-1 (sometimes referred to as the “Navigable Waters Act”) and rules adopted under the Navigable Waters Act at 312 IAC 6.

 

 

[VOL. 10, PAGE 271]

 

69.  For a watercourse that is a private lake, neither the Lakes Preservation Act nor the Navigable Waters Act applies.  Use of the surface of a private lake for navigation and recreation is exclusive to the person who owns the underlying real estate.

 

70.  The Indiana General Assembly may, however, direct the DNR to implement a regulatory structure that does not distinguish between a public lake and a private lake. 

 

71.  Regulation may be envisioned that applies to both public and private watercourses.  An illustration is the Flood Control Act (IC 14-28-1) that applies to construction activities within a stream and its floodway regardless of public or private ownership.

 

72.  Similarly, the Indiana General Assembly has provided for the emergency regulation of surface water rights for lakes at IC 14-25-5 (sometimes referred to as the “Freshwater Lakes Emergency Act”).  The Commission has adopted rules at 312 IAC 11-6 to assist with implementation of the Freshwater Lakes Emergency Act.  This legislation makes no distinction between whether a freshwater lake is public or private.

 

73.  The Freshwater Lakes Emergency Act authorizes a “lake owner” to seek relief against a person operating a “significant water withdrawal facility” (one capable of withdrawing at least 100,000 gallons of water daily) if the operation has lowered a “freshwater lake” significantly below its legally established level or typical shoreline.  Relief is ordered by the DNR and the Commission may provide administrative review to a person affected by a water withdrawal.

 

74.  A “lake owner” is a term defined by statute as any “person in possession of property” that includes a “physical part of” or “legal interest in” a freshwater lake.  IC 14-25-5-4.  This statutory definition confers standing to seek relief under the Freshwater Lakes Emergency Act upon a broad range of persons.  First, the interest is one merely of “possession” rather than title and so may arguably include a renter or condominium owner who enjoys the possession of shoreline property.  Second, the definition includes a person who has title to a portion of the lake, but it also a person with some “legal interest” in the lake. 

 

75.  A riparian owner along a navigable lake or public freshwater lake has a “legal interest” and would have standing under the Freshwater Lakes Emergency Act to seek redress. Depending upon the nature of an easement, an easement holder deriving an interest from a subservient riparian estate might also qualify.

 

76.  Under the Freshwater Lakes Emergency Act, a “freshwater lake” includes a lake of natural origin or one originally constructed to permanently retain water and in existence at least five years before the commencement of water withdrawals by a significant water withdrawal facility.  IC 14-25-5-3.  By rule, the lake must contain at least ten acres.  312 IAC 11-6-5.  The definition of “freshwater lake” neither requires a showing of public use with the acquiescence of a riparian owner nor limits its application to a lake within private ownership.

 

[VOL. 10, PAGE 272]

 

77.  The Freshwater Lakes Emergency Act confers personal standing liberally and extends coverage to a range of lakes, both public and private.  This legislative approach may be unremarkable considering the limited scope of relief that is afforded.  Only where a lake is lowered by the operation of a significant water withdrawal facility, “significantly” below its legally established level or typical shoreline, does the Freshwater Lakes Emergency Act apply.  Even in this limited circumstance, relief may be denied if the “lake owner” is found to have contributed to lowering of the lake through improper management or if the owner of the significant water withdrawal facility posts a responsibility bond.  IC 14-25-5-9 and IC 14-25-5-10.

 

78.  Based upon riparian ownership, Outlook Cove, LLC and Ass’n could qualify as a “lake owner” in the context of the Freshwater Lakes Emergency Act.  Based upon riparian ownership, the Simses could also qualify.  Any riparian owner on Outlook Cove or Pine Lake could qualify. 

 

79.  If Outlook Cove were a private lake with fee simple ownership in a single entity, or with owners of separate parcels, the Freshwater Lakes Emergency Act could also confer standing to that owner or to those owners.

 

80.  Application of the Freshwater Lakes Emergency Act is irrelevant to the matters at issue.  No person has here sought relief from a significant water withdrawal facility whose activities are alleged to have significantly lowered the elevation of Outlook Cove or of Pine Lake.  There is no averment, and there are no facts in this proceeding, that would confer upon the DNR the authority to implement the Freshwater Lakes Emergency Act. 

 

81.  Even if relief had been sought and granted to a “lake owner” based upon the Freshwater Lakes Emergency Act, no insight would be provided.  A person could qualify as a “lake owner” regardless of whether the person has proprietary interests along a navigable lake, a public freshwater lake, or a private lake.

 

82.  As a matter of law, who is or is not a “lake owner” under the Freshwater Lakes Emergency Act is irrelevant to the current proceeding.

 

Material Facts in Dispute as to the Placement of Piers on Pine Lake and Adjacent to the Riparian Lands of Outlook Cove and the Simses

 

83.  As provided in IC 4-21.5-3-23(c):

(c) If on motion under this section no order is rendered upon the whole case or for all the relief asked and a hearing is necessary, the administrative law judge at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating any person, shall if practicable ascertain:
(1) what material facts exist without substantial controversy; and
(2) what material facts are actually and in good faith controverted.
The administrative law judge shall then make an order specifying the

facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just. Upon the hearing of the action, the facts specified are established in the judge’s order under this subsection.

 

[VOL. 10, PAGE 273]

 

84.  The “Findings of Fact and Conclusions of Law with Interlocutory Order of Partial Summary Judgment” entered on July 15, 2005 was not an order rendered on the whole case or for all the relief asked.

 

85.  As anticipated in IC 4-21.5-3-23(c), the Administrative Law Judge specified the facts that appeared without substantial controversy and directed a hearing to render an order on the whole case and for all relief asked.  The specification was set forth in the “Findings of Fact and Conclusions of Law with Interlocutory Order of Partial Summary Judgment” entered on July 15 and augmented by the “Order Granting Claimants’ Motion to Limit Evidence at Hearing and Denying Respondents’ Motion to Reconsider” entered on December 13, 2005.  Considered together these provided:

 

86.  At all times pertinent to this proceeding, the Lakes Preservation Act included several sections which set forth licensure or other regulatory requirements.  These include IC 14-26-2-6, IC 14-26-2-9, and IC 14-26-2-23.B.

 

87.  With P.L. 64-2000, the Indiana General Assembly enacted IC 14-26-2-23.

 

88.  IC 14-26-2-23(1) directs the Commission to adopt, by rule, objective standards for licensing the placement of a temporary or permanent structure over or within the shoreline or water line.  Those rules are set forth at 312 IAC 11-1 through 312 IAC 11-5.  They include provisions addressing piers that are permanent structures and addressing piers that are temporary structures.

 

89.  IC 14-26-2-23(3) directs the Commission to provide, through mediation or administrative review, for the resolution of disputes among riparian owners or between a riparian owner and the DNR

 

90.  An aggrieved person may seek administrative review of the placement of a temporary pier. 312 IAC 11-3-2(a).  Where that occurs, the Commission would 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. The public trust is also considered, including the impact of pier placement upon safety, the environment, and the enjoyment of public waters.  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.  Exhaustive inquiry into these principles may be required to bring a full resolution.  Roberts v. Beachview Properties, LLC, et al., 9 Caddnar 163, 165 (2004).

 

[VOL. 10, PAGE 274]

 

91.  The dispute between and among the parties in this proceeding is one involving competing interests among the adjacent riparian owners and the DNR.

 

92.  The Commission has the requisite jurisdiction over the person of the parties and over the subject matter to determine these facts following a hearing and to render a final agency determination.

 

93.  The only factual issues upon which there appeared to be substantial controversy were identified as the following:

 

(1) Where the “shoreline or water line” for Pine Lake is located under the Lakes Preservation Act relative to the lands of the Simses and of Outlook Cove, LLC and Ass’n.  Under the Lakes Preservation Act, Outlook Cove has no separate legal existence from Pine Lake except to the extent the cover is outside the “shoreline or water line” for Pine Lake.

 

(2) A determination of the riparian rights of the Simses and of Outlook Cove, LLC and Ass’n within the “shoreline or water line” of Pine Lake, as compared to each other, and as regulated by the DNR in protection of the public trust and other factors governed by the Lakes Preservation Act.  This determination might include a disposition as to the placement of piers, boat stations, seawalls and other similar structures commonly used in the enjoyment of riparian rights.

 

94.  In anticipation of the hearing, the Parties agreed to, and the Administrative Law Judge entered on April 3, 2006, a “Pretrial Order”, the substantive portions of which follow:

 

Parties, by counsel, and pursuant to agreement submit Pretrial Order in this matter.

1. Jurisdiction.  Jurisdiction is contested by [Outlook Cove, LLC and Ass’n] but found by the Administrative Law Judge.

2. Status of Record.  The matter at issue on [Simses’] Petition for Administrative Review,  [Outlook Cove, LLC and Ass’n’s] general denial thereof and affirmative defenses and any issues raised by [DNR].

This matter was originally submitted on [Outlook Cove, LLC and Ass’n’s] Motion to Dismiss claiming lack of jurisdiction, subsequently converted to a Motion for Summary Judgment.  [Simses] in turn filed a Cross Motion for Summary Judgment.  This Tribunal ruled in favor of the [Simses] and on the Motion for Summary Judgment and the subsequent Motion to Reconsider by [Outlook Cove, LLC and Ass’n].  This Tribunal has also denied [Outlook Cove,

 

[VOL. 10, PAGE 275]

 

LLC and Ass’n’s] Motion to Supplement certain affidavits submitted in support of the Motion to Dismiss.  Finally, this Tribunal has granted [Simses’] Motion to Limit Evidence at Final Hearing.

3. Pending Motions.  There are no pending motions.

4. [Simses’] Contentions.  [Simses], having been previously determined to be riparian owners, claim that the riparian area of Pine Lake available to them and to the exclusion of [Outlook Cove, LLC and Ass’n] is that area, triangular in shape, shown on the survey of John T. Saylor, last revised September 12, 2005.  [Simses] further contend that [Outlook Cove, LLC and Ass’n’s] pier is located in such a fasion that it penetrates the riparian area of [Simses] and interferes with [Simses’] reasonable usage of their riparian area.  [Simses] request that [Outlook Cove, LLC and Ass’n] be enjoined from maintaining their pier or docking boats in any portion of [Simses’] riparian area.

5. [Outlook Cove, LLC and Ass’n’s] Contentions]: Reserving its rights as to the issues on which the Administrative Law Judge has limited the evidence, [Outlook Cove, LLC and Ass’n’] contend that the riparian area that is available to them is the area shown on the detail drawing prepared by Charles Hendricks and identified during the depositions of Alan Tim Theriac and George Curtis Bowman as Exhibit 4.  [Outlook Cove, LLC and Ass’n] further content that the riparian area so designated permits both [Simses] and [Outlook Cove, LLC and Ass’n] to have access to Pine Lake in a manner that is consistent with their projected uses.  [Outlook Cove, LLC and Ass’n] contend that they own approximately 825 feet of the shoreline.  [Outlook Cove, LLC and Ass’n] contend that [Simses] own approximately 125 feet of shoreline.  [Outlook Cove, LLC and Ass’n] further contend that the shoreline in question is irregular, and that drawing lines at right angles to the shoreline would not accomplish a just apportionment.  The boundary lines should divide the available shoreline in proportion to the amount of shoreline of each owner taken according to the general trend of the shore.  [Outlook Cove, LLC and Ass’n] also contend that their riparian area should be defined to meet the needs of their condominium residents without limited the stated, proposed, residential use of [Simses].  The detail drawing prepared by Surveyor Charles Hendricks, referred to above, properly defines the riparian area.

6. [DNR’s] Contentions.  The Administrative Law Judge should enter an order defining the riparian zones of [Simses] and [Outlook Cove, LLC and Ass’n] and setting down parameters for the placement of piers consistent with the legal principles set down in Ruffenbarger v. Lowe, et al., CADDNAR Vol. 9, Page 150 (2004) and other cases of record.

7. [Simses’] Witnesses.  Simses may call at hearing any of the following persons: Thomas G. Sims, John T. Saylor, any witnesses listed by [Outlook Cove, LLC and Ass’n] or [DNR].

8. [Outlook Cove, LLC and Ass’n’s] Witnesses.  [Outlook Cove, LLC and Ass’n may call at hearing any of the following persons: Gerald M. Fedorchak, Jr., Gerald M. Fedorchak, Sr., Charles Hendricks, Surveyor, Hendricks & Associates, Tony Hendricks, Hendricks & Associates, Roberts Magnuson, Catherine Magnuson, LaPorte County Recorder, Barbara Dean, Jon T. Saylor, Surveyor, Tina Everling, Keeper of records for the DNR, Denise DeBoy, Indiana State

 

 

[VOL. 10, PAGE 276]

 

Archives, Indiana Commission on Public Records, George Curtis Bowman and any witnesses listed by [Simses] or [DNR].

9. [DNR’s] Witnesses.  The [DNR] may call F/Sgt. Alan Theriac, Robert Wilkinson and any witnesses listed by any party as witnesses.

10. [Simses’] Exhibits.  [Simses] may submit at hearing any of the following documents: All exhibits listed by [Outlook Cove, LLC and Ass’n] or [DNR], all surveys prepared by John T. Saylor, numerous aerial photographs, numerous photographs of [Simses’] and [Outlook Cove, LLC and Ass’n’s] tracts, promotional materials for [Outlook Cove, LLC and Ass’n’], all documents submitted by [Simses] in the summary judgment proceedings in this matter.

11. [Outlook Cove, LLC and Ass’n’s Exhibits].  [Outlook Cove, LLC and Ass’n] may submit at hearing any of the following documents: All exhibits listed by [Simses] or [DNR], all drawings and surveys conducted by Charles Hendricks & Associates, P.C., various photos of [Simses’] and [Outlook Cove, LLC and Ass’n’s] properties.  Records from LaPorte Circuit Court in Cause No. 22084 establishing the legal lake level of Pine, Stone and Lilly Lakes in LaPorte County, Indiana, and all documents submitted by [Outlook Cove, LLC and Ass’n] in the summary judgment and motion to reconsider proceedings in this matter.]

12. [DNR’s Exhibits].  The [DNR] may introduce any of the following as exhibits at hearing: Division of Water Records pertaining to the establishment of the legal lake level of Pine Lake from In the Matter of the Establishment of the Water Level of Pine, Stone and Lilly Lakes in LaPorte County, Indiana, Cause No. 22084, order and maps entered September 26, 1949 and any exhibit listed by any party.

13. Issues. The following issues exist for determination at hearing:

13.1 The exact location of [Simses’] and [Outlook Cove, LLC and Ass’n’s riparian area in Pine Lake;

13.2 Whether [Outlook Cove, LLC and Ass’n’s] pier is improperly placed in the riparian area of [Simses] and whether an injunction should issue requiring its removal from that area.

14. Settlement. No settlement negotiatons are ongoing.

15. Stipulation. The parties stipulate that the rulings on the Motions for Summary Judgment, the Motion to Reconsider, the Motion to Supplement Affidavits, the Motion to Limit Evidence at Hearing are interlocutory orders not subject to appeal.  The parties further stipulate that [Outlook Cove, LLC and Ass’n] shall have neither the right nor the duty to make any offers of proof with respect to any of the issues to which the Administrative Law Judge has limited the issues for the Final Hearing.  The parties finally stipulate that [Outlook Cove, LLC and Ass’n] may raise any or all of these issues on appeal, including issues disposed of by the Administrative Law Judge on Summary Judgment, subject only to procedural objecitions not exempted by this stipulation.  The Administrative Law Judge now approves and adopts the stipulation.

16. Hearing. This matter is scheduled for a one day hearing on April 19, 2006 at the DNR facility in Michigan City.

17. Other. This order has been formulated after opportunity for contribution by all parties and shall control the order of haring and shall not be amended without leave of the Administrative Law Judge.

 

95.  The hearing was conducted as scheduled in Michigan City, Indiana on April 19, 2006.

 

[VOL. 10, PAGE 277]

 

96.  Following the close of evidence, a process was agreed by which the parties would be invited to tender any post-hearing brief and any proposed findings.  The agreement was memorialized in an “Invitation to Tender Post-Hearing Briefs and Proposed Findings of Fact and Conclusions of Law with Nonfinal Order” entered on April 28, 2006.

 

97.  On May 15, 2006, the Simses timely filed their “Proposed Findings of Fact, Conclusions and Judgment”.

 

98.  On May 17, 2006, Outlook Cove, LLC and Ass’n timely filed the “Respondents, Outlook Cove LLC and Outlook Cove Homeowners Association’s Post Hearing Brief” and “Respondents’ Proposed Findings of Fact and Conclusions of Law with Non-Final Order”.

 

99.  On May 19, 2006, the DNR timely filed “Intervenor Department of Natural Resources’ Post-Hearing Proposed Findings of Fact, Conclusions of Law and Order”.

 

100.          With the completion of all prehearing activities, the conduct of the hearing and the completion of post-hearing briefing, the proceeding became ripe for the entry of Findings of Fact and conclusions of law with a nonfinal order of the Administrative Law Judge.

 

101.          The Simses are the owners of real estate in LaPorte County, Indiana described in two separate deeds for adjoining properties.  The first is from Stanley Gurecki dated July 10, 1984 and recorded on August 13, 1986 as Instrument Number 86-09763 in the Office of the Recorder of LaPorte County, Indiana.  The second is a from Catherine L. Magnuson dated April 29, 1999 and recorded on May 5, 1999 as Instrument Number 99-09793 in the Office of the Recorder of LaPorte County, Indiana.  For purposes of this proceeding, these two deeds constitute the “Simses’ realty”.

 

102.          Outlook Cove, LLC and Ass’n are the owners of real estate located in LaPorte County and described in a deed from Robert Magnuson and Catherine Magnuson recorded on June 27, 2002 as Instrument Number 2002R-14762 in the Office of the Recorder of LaPorte County, Indiana.  For purposes of this proceeding, this deed constitutes the “Outlook Cove, LLC and Ass’n’s realty”.

 

103.          The respective boundaries and shorelines of the Simses’ realty and of the Outlook Cove, LLC and Ass’n’s realty are shown on the survey of John Saylor stipulated by the parties as Exhibit 1.

 

104.          The Simses’ realty includes approximately 151 feet along the eastern shoreline or water line of Pine Lake with an address at 1318 Pine Lake Road, LaPorte.

 

[VOL. 10, PAGE 278]

 

105.          The Outlook Cove, LLC and Ass’n’s realty includes approximately 817 feet along the eastern and southern shoreline or water line of Pine Lake with an address of 100 Outlook Cove Drive, LaPorte.

 

106.          The Simses share a common boundary line with Outlook Cove, LLC and Ass’n which proceeds at a bearing of N 89º 17’ 57” W and intersects the shoreline or water line of Pine Lake at roughly a right angle.  This common boundary forms a portion of the southern boundary of the Simses’ realty and a portion of the northern boundary of the Outlook Cove, LLC and Ass’n’s realty.

 

107.          Much of the testimony was focused on promoting various methods for defining and apportioning riparian zones.  Three professional land surveyors testified, each of whom is licensed in Indiana.  The testimony of each was forthright, and each had extensive experience in the profession.

 

108.          John Saylor, the land surveyor called by the Simses, testified in support of what has been called the “hub and spoke” method.  Charles Hendricks, the land surveyor called by Outlook Cove, LLC and Ass’n, testified in support of what has been called the “extended lot line” method.  Robert Wilkinson, the land surveyor called by the DNR, testified in support of what has been called the “long lake” method.

 

109.           Outlook Cove, LLC and Ass’n cite Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984) in support of the extended lot line method.  The Court of Appeals noted in Bath that between riparian owners there was “no set rule in Indiana for establishing the extension of boundaries into a lake”.  The court then adopted Wisconsin law as articulated in Nosek v. Stryker, 309 N.W.2d 868.  Where a shoreline approximates a straight line and where the onshore property boundaries are perpendicular to the shore, the boundaries are determined by extending the onshore boundaries perpendicular to the shoreline.  Riparian rights do not extend to the center of a public freshwater lake.  Rather, “the State of Indiana holds in trust for public use and enjoyment all freshwater lakes.”  Rufenbarger v. Lowe, 9 Caddnar 150, 152.

 

110.          As reflected by the Wisconsin Supreme Court in Nosek, the extended lot line method is appropriate in “the least complicated situation, where the course of the shore approximates a straight line and the onshore property division lines are at right angles with the shore, [in which case] the boundaries are determined by simply extending the onshore property division into the lake.”  Nosek at 870.

 

111.          The extended lot line method is not appropriate in all circumstances, as articulated by Nosek and as applied by the Commission in Rufenbarger and in Roberts v. Beachview Properties, LLC, et al. at 10 Caddnar 125 (2005).

 

[VOL. 10, PAGE 279]

 

112.          Currently, the Commission has no reported guidance from the Indiana judiciary other than the Bath decision.  Neither has the Commission elected to adopt rules or to implement a nonrule policy document to establish standards that might assist in determining riparian boundaries.  In the absence of guidance other than Bath, the extended lot line method should be applied unless doing so would be demonstrably inequitable.

 

113.          Robert Wilkinson testified that while the long lake method was preferable, the extended lot line method would work in this proceeding.  Similarly, George Bowman, Assistant Director for the DNR’s Division of Water, testified through a deposition that the agency looks “for ways where they basically were in line with their property boundaries, so that they didn’t angle out across extensions of property boundaries and so forth.  Generally, we’d be looking for something that came pretty much straight out and was perpendicular to your shoreline....”  Stipulated Deposition of George Curtis Bowman (March 8, 2006).

 

114.          Both the hub and spoke method and the long lake method offer promise for the achievement of equitable delineations of riparian boundaries, but the Commission’s use of either could not have been predicted by the parties in advance of the adjudication.  Application of the extended lot line method is here an equitable approach and should be implemented to delineate the riparian boundary shared by the Simses and Outlook Cove, LLC and Ass’n.

 

115.          First Sgt. Tim Theriac of the DNR’s Division of Law Enforcement in District 10, which includes Pine Lake, testified that safety is his Division’s paramount concern.  He testified that a minimum of ten feet should be maintained between piers, but a separation of 20 feet is preferred.  Finally, he testified that Outlook Cove is not large enough to lawfully accommodate high-speed watercraft.

 

116.          In support of navigational safety, no pier, pier extension, boat lift, similar structure or moored boat should be located closer than ten feet from the riparian boundary formed by the extension of the common boundary between the Simses’ realty and the Outlook Cove, LLC and Ass’n’s realty.

 

117.          No finding is made as to the placement of piers within the riparian areas of the Simses or of Outlook Cove, LLC and Ass’n, other than as set forth in the following order, except that any pier must comply with the Lakes Preservation Act and 312 IAC 11.

 

 

 

 

 



A. As provided in IC 4-21.5-3-32 of AOPA, an agency is required to index final orders and may rely upon indexed orders as precedent.  In November 1988, the Commission adopted Caddnar as its index of agency decisions.  Amendments made to AOPA in 1997 also require the Commission and its Administrative Law Judges to address agency precedents cited by the parties where, as here, a proceeding applies IC 14.

 

B. Effective July 1, 2006, S.E.A. 253 makes several amendments to the Lakes Preservation Act.  Among the amendments, IC 14-26-2-6 and IC 14-26-2-9 are repealed, and their licensure requirements are incorporated into IC 14-26-2-23.  With the inclusion of new and relocated requirements in IC 14-26-2-23, numbering of subsections and subdivisions is also modified.  S.E.A. 253 is inapplicable to this proceeding.  If it were applicable, these Findings of Fact and Conclusions of Law would not be substantively altered.