CADDNAR

[CITE: Gunkel v. Department of Natural Resources, 10 CADDNAR 171 (2005)]

FINAL ORDER

The Department’s determination denying Gunkel’s permit application PL-19891 is hereby affirmed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

STATEMENT OF THE CASE:

1. On May 23, 2005, Claimant, Larry Gunkel, ("Gunkel"), filed correspondence with the Natural Resources Commission ("Commission") seeking administrative review of a denial issued by the Department of Natural Resources ("Department") with respect to Gunkel’s application for a permit to extend an existing temporary pier from one hundred fifty (150) feet lakeward from the shoreline of Snow Lake to a total of one hundred seventy (170) feet lakeward of the shoreline.
2. The Department’s determination to deny Gunkel’s permit application, identified by the Department as PL-19891, is subject to review pursuant to I.C. 4-21.5 (Administrative Orders and Procedures Act or AOPA), and administrative rules adopted for the purpose of implementing AOPA in proceedings before the Commission, which are set forth at 312 IAC 3-1.
3. Snow Lake is a "public freshwater lake" as defined at I.C. 14-26-2-3.
4. Gunkel, who owns property at 420 Lane 840, Snow Lake, Fremont, Steuben County, Indiana, is an owner of land abutting Snow Lake.
5. Gunkel is a "riparian owner" as defined at 312 IAC 11-2-19.
6. This proceeding involves Gunkel’s application PL-19891 submitted to the Department pursuant to I.C. 14-26-2 commonly referred to as the "Lakes Preservation Act" and administrative rules relating thereto that are set forth at 312 IAC 11.
7. The Department administers the Lakes Preservation Act and the Commission, pursuant to I.C. 14-10-2-3 and 4-21.5-1-15 is the "ultimate authority" for the Department.

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8. On September 12, 2005, Department counsel, Ann Z. Knotek, entered her appearance in substitution for previous Department counsel, Michael J. Reeder.
9. The Commission has jurisdiction over the persons of the parties and the subject matter of this proceeding.
10. An administrative hearing was conducted on November 2, 2005 at the Department’s Division of Law Enforcement, District 2 Headquarters located in Fort Wayne, Indiana.
11. At the administrative hearing, Gunkel appeared pro se and Ann Z. Knotek appeared on behalf of the Department. Witnesses were individually sworn before providing testimony.
12. Any person seeking to set aside a determination made by the Department regarding a licensure application must bear the burden of proof by a preponderance of the evidence. I.C. 4-21.5-3-14(c), Tungate v. Department of Natural Resources, 9 CADDNAR 28, September 18, 2001.
13. The "Lakes Preservation Act" expressly provides for the state’s exercise of "full power and control of all the public freshwater lakes" and specifically mandates that the state "hold and control all public freshwater lakes in trust for the use of all the citizens of Indiana for recreational purposes." I.C. 14-26-2-5(d).
14. The Commission has previously determined that I.C. 14-26-2-5(d) " ‘amounts to a statutorily created trust in which the DNR is the trustee" of public freshwater lakes." Tungate, supra at 30; citing Phillabaum v. DNR, 6 CADDNAR 6, January 14, 1991.
15. "A person owning land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake." I.C. 14-26-2-5(e).
16. Instead the rights of a person owning land bordering a public freshwater lake continues to possess rights but those rights must be balanced with the public’s right to recreate upon those same lakes. Piering v. Ryan and Caso, 9 CADDNAR 123, July 25, 2003.
17. In support of balancing the rights of a person owning land abutting public freshwater lakes and the public, licensure authority of the Department relating to public freshwater lakes was established at I.C. 14-26-2-6, which states,

A person may not change the level of the water or the shoreline of a public freshwater lake by:


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(1) excavating;
(2) filling in; or
(3) otherwise:
(A) causing a change in the area or depth of; or
(B) affecting the natural resources, scenic beauty, or contour of;
the lake below the waterline or shoreline without having a written permit issued by the department.

18. Certain activities by owners of land abutting a public freshwater lake, including the placement of "qualified temporary structures," may be accomplished through a general license. 312 IAC 11-3-1.
19. "Temporary structures" as defined at 312 IAC 11-2-25, which do not qualify for placement under the general license authority of 312 IAC 11-3-1, are subject to a written license issued by the Department pursuant to 312 IAC 11-3-3(b).
20. 312 IAC 11-3-3(b) states,

(b) Except as provided in 312 IAC 11-4-7, a structure that is located on a public freshwater lake:

(1) more than one hundred fifty (150) feet; and
(2) less than two hundred (200) feet;
from the legally established or average normal waterline or shoreline requires a written license under IC 14-26-2, this rule, IC 14-15-7-3, and 312 IAC 5-4.
21. Furthermore, I.C. 14-15-3-17(a & b) provides that watercraft may only pass within two hundred (200) feet of the shoreline of a public freshwater lake for purposes of approaching or leaving a dock or for trolling. Those boats within two hundred (200) feet from the shoreline must travel at a speed no greater than idle speed.

FINDINGS OF FACT:

1. At issue herein is the Department’s denial of application PL-19891 for the reason that "pursuant to IC 14-26-2-5 the state holds and controls all public fresh water lakes in trust for the use of all the citizens of Indiana and the public has the vested right in the use of said lakes for recreational purposes; the proposed project would pose a threat to both navigation and safety of recreational boaters." Denial Notice, Respondent’s Exhibit A.
2. On June 29, 2005 the water depth at one hundred fifty (150) feet was twenty-nine (29) inches while the water depth at one hundred seventy (170) feet was thirty-four (34) inches. Gunkel testimony, "Measurements taken by Gunkel," Respondent’s Exhibit B.

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3. Gunkel testified that at "twenty-nine (29) inches it’s hard especially with and I/O on a boat with the trim up likes to push the boat down and with the motor down it’s digging into the lake bed."[FOOTNOTE 1] This constituted Gunkel's reason for submitting application PL-19891 seeking to extend his pier an additional twenty (20) feet, to a total of one hundred seventy (170) feet because thirty-four (34) inches of water would allow for the bunks on his boat lift to be lowered sufficiently to enable loading of his boat without digging into the lake bed.
4. Gunkel further testified that from 1990 to 2003 the pier in question had extended as far lakeward as two hundred feet[FOOTNOTE 2] and no mishaps occurred with respect to the pier.
5. Furthermore, Gunkel testified that at no time between 1990 and 2003 were there any complaints about the length of his pier. First Sergeant Bill Snyder, to the contrary, recounted an occasion "a couple years ago" in which a neighbor had lodged a complaint about the length of Gunkel’s pier. Snyder testified that it was this complaint that resulted in Gunkel’s reduction in the length of his pier. Testimony of Snyder.
6. Gunkel provided evidentiary photographs depicting the pier in its present condition, which includes solar lights placed on the corners at the lakeward extension of the pier to enhance visibility relating to the pier. Claimant’s Exhibit 2 & 3.
7. In addition to evidence regarding the pier at issue in this proceeding, Gunkel provided a "Permit Application Information Report" of the Department’s Division of Water indicating that a temporary pier permit applied for by George Dodd had been approved on Snow Lake for a pier extending three hundred (300) feet lakeward of the shoreline. Claimant’s Exhibit 7 and testimony of Gunkel. Snyder had conducted an inspection relating to the Dodd permit application and had recommended against the permit application on the same grounds as his opposition to application PL-19891. Testimony of Snyder.
8. Gunkel was unable to provide any information except that contained within Claimant’s Exhibit 7, which reveals that the three hundred (300) foot pier spanned over a significant wetland area. While Snyder recommended against the approval of the Dodd application, he conveyed that the situation with the Dodd pier was entirely different and the pier, while physically longer, extended only a very short distance

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beyond the wetland and thus presented very little intrusion into navigable waters. Testimony of Snyder.

9. Gunkel, who has been on Snow Lake all of his life described the water level in 2005 as "characteristically low" and further stated that "I’ve only seen it close to this low maybe a few times in the time I’ve been up there." Cross Examination of Gunkel.
10. Snyder, who is the Assistant Commander for District 2 with nearly thirty (30) years of experience with the Department’s Division of Law Enforcement, testified that part of his job responsibility is to perform inspections relating to permit applications submitted to the Department’s Division of Water.
11. The inspection, conducted for the Division of Law Enforcement for the purpose of commenting to the Department’s Division of Water, involves consideration of navigational issues, high speed boating as well as other types of recreational boating including trolling for the purpose of fishing. Recommendations are also based upon the area, water depth, vegetation and other obvious conditions that exist with respect to the proposed project site. Testimony of Snyder.
12. Snyder inspected the Gunkel pier one time with respect to PL-19891 shortly after receiving notice of the application. Based upon the inspection, a memorandum was submitted, through chain of command, to the Division of Water indicating that PL-19891 "poses an unnecessary navigational issue for the public use of the lake." Respondent’s Exhibit F.
13. Snyder testified that pursuant to the "public trust doctrine" piers, such as the one at issue[FOOTNOTE 3], are viewed initially from the standpoint of the one hundred fifty (150) foot pier authorized by the general license. Unless an extension beyond one hundred fifty (150) feet is necessary to provide access to a riparian owner it is his duty to protect the "ability of people who want to troll or partake in the area and not lose the area of the water controlled by piers." Testimony of Snyder.
14. Gunkel opined during his testimony that the greater length of the pier would serve to keep boaters further away from the shoreline.
15. Snyder testified that the lakeward extension of temporary piers beyond one hundred fifty (150) feet inhibits the rights of fishermen who are required to navigate a further distance from the shoreline bringing them closer to the high speed boating area. One purpose of the two hundred (200) foot high speed boating restriction is to allow for

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wave dissipation, thus in maneuvering around the longer piers trolling boats and fisherman are brought closer to the heavier wave and wake action. Snyder further testified that in terms of safety the "scenarios are endless," adding that through lack of judgment, loss of control, whether in violation or not, high speed watercraft can travel closer than two hundred (200) feet from shore and determined that "if there’s no reason for the additional twenty (20) foot that it’s obvious that…that it is a problem with people using boats." The loss of twenty feet of buffer reduces the ability to regain control or take corrective action. Testimony of Snyder.

16. Snyder through other inspections relating to Division of Water permits has determined that ski boats are setting on boat lifts located in twenty-four (24) to twenty-eight (28) inches of water. Testimony of Snyder.
17. Gunkel’s Exhibit 12 provides support for Snyder’s opinion that the pier extension requested in application PL-19891 is unnecessary.
18. Gunkel’s Exhibit 12 depicts a boat on the boat-lift confirming that use of the boat-lift is not impossible although as Gunkel testified use of the boat-lift may be somewhat inconvenient in "characteristically low water."
19. More importantly however is that Exhibit 12 reveals that while the lakeward extension of Gunkel’s pier is one hundred fifty (150) feet, the lakeward extension of his boat-lift is located at only one hundred forty (140) feet. In Gunkel’s own handwriting, contained within Exhibit 12, Gunkel indicates the water depth at the lakeward extension of the boat-lift to be only twenty-three (23) inches.

CONCLUSIONS OF LAW:

1. The Department is responsible, as the trustee of Indiana’s public freshwater lakes, for preserving those lakes for the benefit of all citizens of Indiana. Tungate, supra; Piering, supra
2. A portion of the Department’s responsibility is to balance the interests of a riparian owner with the interests of the general public. Id.
3. Gunkel’s riparian rights were considered by the Department in comparison to other watercraft owners who are able to utilize boat-lifts in twenty-four (24) to twenty-eight (28) inches of water. This conclusion is bolstered by Gunkel’s Exhibit 12, which reveals his present ability to utilize his boat-lift with the furthest lakeward extension located in twenty-three (23) inches of water at one hundred forty (140) feet lakeward of the shoreline.

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4. The determination that Gunkel’s requested pier extension was unnecessary to afford Gunkel access to and use of Snow Lake was properly balanced against the determinations that a twenty (20) foot extension of the pier would decrease the area of Snow Lake open to navigation by the boating public, reduce the fifty foot area within which a high-speed watercraft might be required to regain control, and subject fishermen or other idle speed watercraft maneuvering around the pier to greater wake and wave action.
5. Gunkel has failed to sustain his burden of proof that the Department’s denial of application PL-19891 was erroneous.

FOOTNOTES:

1/ The testimony of witnesses is shown here and elsewhere in this document as a quotation. The administrative law judge understands the language contained within quotations to be exactly as written, but the quotations are not taken from an official transcript of the hearing. If the transcript, at a later time, reflects different language the transcript shall be considered the true and accurate record of testimony.

2/ Gunkel explained that he had recently become aware of the one hundred fifty (150) foot length restriction on qualified temporary piers and had in 2003 reduced the length to one hundred sixty (160) feet and in 2005 further reduced the length to the maximum allowable one hundred fifty (150) feet.

3/ Because the water depth is consistently less than six (6) feet at the point of the Gunkel shoreline, this pier may extend a maximum of one hundred fifty (150) feet under a general license. In other cases where the water depth equals or exceeds six (6) feet piers are restricted to a lakeward extension of seventy-five (75) feet.