CADDNAR

[CITE: Clauss v. DNR, 11 CADDNAR 150 (2007)]

 

[VOLUME 11, PAGE 150]

 

Cause #: 06-237W

Caption: Clauss v. DNR

Administrative Law Judge: Lucas

Attorneys: Snyder; Knotek

Date: May 18, 2007                                                                          

 

 

FINAL ORDER                                                                    

 

The denial of PL-20,551 is modified to authorize John S. Clauss to place a pier and boat lifts as depicted in Stipulated Exhibit B, but with the added restriction that these structures must not extend more than 175 feet from the shoreline or water line of Lake Pleasant.  Clauss must not place any portion of a pier, boat lift or moored boat within ten feet of the line identified in Stipulated Exhibit B as the “property line extended—Profile Line ‘A’”, although a minimal extension of the canopy is not prohibited if the extension does not interfere with navigation.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

1. On December 13, 2007, John S. Clauss (“Clauss”) filed correspondence with the Natural Resources Commission (the “Commission”) in which he petitioned for relief from the denial by the Department of Natural Resources (the “DNR”) of a license application (designated by the DNR as “PL-20,551”) under IC 14-26-2 (the “Lakes Preservation Act”), and rules adopted by the Commission at 312 IAC 11 to assist with implementation of the Lakes Preservation Act.  PL-20,551 was sought for the purpose of extending a temporary pier more than 150 feet beyond the shoreline or water line of Lake Pleasant in Steuben County, Indiana.

 

2. The correspondence described in Finding 1 also sought relief from the denial in PL-20,551 of authorization to dredge beneath two boat lifts that were to be placed along the extended temporary pier.  Clauss subsequently withdrew this element of his petition, and it is not further considered here.

 

3. The correspondence described in Finding 1 initiated a proceeding under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”).  The Commission adopted 312 IAC 3-1 to assist with its implementation of AOPA.

 

4. Lake Pleasant is a “public freshwater lake” under the Lakes Preservation Act.  The DNR is the agency with licensing authority for regulated activities at a public freshwater lake, and the Commission is the “ultimate authority” for the DNR under AOPA.  IC 14-10-2-3.

 

[VOLUME 11, PAGE 151]

 

5. The Commission has jurisdiction over the subject matter and over the persons of the parties.

 

B. Hearing de Novo and Burden of Proof

 

6. Administrative review of a DNR licensure determination is conducted de novo.  Rather than deferring to the DNR determination, de novo review requires the administrative law judge to consider and apply proper weight to the evidence presented in a proceeding.  Crafton, et al. v Hopkins, 10 Caddnar 227 (2006) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).

7. At each stage of a proceeding, the party requesting that an agency take action or asserting an affirmative defense has the burden of going forward and the burden of persuasion (sometimes collectively referred to as the burden of proof) with the evidence.  IC 4-21.5-3-14(c).  A person seeking the benefit of a license has the burden of proof for entitlement to the license. DNR v. United Refuse Co., cited previously, and Ind. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991).

8. The hearing in this proceeding is conducted de novo.  As the license applicant, Clauss has the burden of proof.

 

C. Licensure of Temporary Piers

 

9. Unless a person obtains a DNR license under IC 14-26-2-23 of the Lakes Preservation Act, the person cannot lawfully place a temporary structure over, along, or lakeward of the “shoreline or water line” of a public freshwater lake.  IC 14-26-2-23(a). 

 

10. The water level of Lake Pleasant has been legally established by the Steuben Circuit Court at 961.5 feet mean sea level.  For a public freshwater lake where the water level has been legally established, the line formed on the bank or shore by the water at this level is the “shoreline or water line” under the Lakes Preservation Act.  IC 14-26-2-4(1).

 

11. The Indiana General Assembly directed the Commission to adopt rules to provide objective standards for issuing licenses under IC 14-26-2-23, including standards for the configuration of piers, boat stations, platforms and similar structures.  The standards are to exempt any class of activities from licensing, including temporary structures, if the Commission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in IC 14-26-2-5.  IC 14-26-2-23(e).

 

12. The “public rights” referenced in IC 14-26-2-5 are “natural resources and the natural scenic beauty of Indiana”.  “Natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.  The public of Indiana has a “vested right” in (A) the preservation, protection, and enjoyment of all the public freshwater lakes; and, (B) the use of public freshwater lakes for recreational purposes.  A “recreational purpose” means fishing, boating, swimming, the storage of water to maintain water levels, and any other purpose for which lakes are ordinarily used and adapted.  The State holds and controls all public freshwater lakes in trust for the use of all the citizens of Indiana for recreational purposes.  IC 14-26-2-5.

 

[VOLUME 11, PAGE 152]

 

13. Applying these statutory authorities, and particularly IC 14-26-2-23(e), the Commission has developed a regulatory design that authorizes the placement of temporary piers, boat stations and similar structures under a partial exemption that is commonly referred to as a “general license”.  Under this regulatory design, a qualified structure can be placed within a public freshwater lake without obtaining a prior written license (or what is sometimes called an “individual license”) from the DNR.

 

14. As provided in pertinent part in 312 IAC 11-3-1(a) and (b):

 

(a) The placement of a temporary structure…is authorized without a written license issued by the [DNR under the Lakes Preservation Act and 312 IAC 11-3] if the temporary structure qualifies under this section.

(b) In order for a temporary structure to qualify, the structure must satisfy each of the following:

(1) Be easily removable.

(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.

(3) Not unduly restrict navigation.

(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.

(5) Not extend more than one hundred fifty (150) feet from the…shoreline [or water line].

(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the…shoreline [or water line].

(7) Not be a marina.

(8) Not be a group pier.

(9) Be placed by…a riparian owner.

 

D. Navigation Buoys and the Orange Buoy

 

15. A hearing was conducted as scheduled in this proceeding on April 12, 2007 during which the parties provided testimony and offered documents into evidence.

 

16. Testimony and documents were offered pertaining to the placement of a solid orange buoy (the “orange buoy”) near the location of the proposed temporary pier.  The orange buoy is visible on copies of three photographs in the riparian area of Lot 29.  Stipulated Exhibit C.

 

17. Conservation Officer Warner of the DNR’s Division of Law Enforcement testified he was aware of the placement of the orange buoy, but the orange buoy has not been licensed by the DNR.  The orange buoy has been placed the last two or three boating seasons. 

 

[VOLUME 11, PAGE 153]

 

18. Clauss testified the orange buoy has been placed in shallow water by the Lake Pleasant Home Owners Association.  Nancy L. Bandelier, Secretary-Treasurer of the Lake Pleasant Home Owners Association, provided an April 9, 2007 letter in which she stated the orange “buoy is positioned approximately 350-400 ft. from the shoreline to discourage boaters from entering the area and incurring damage to props, etc.”

 

19. The licensure of navigation aids and water recreation structures is governed by statute at IC 14-15-7-3 primarily through rules at 312 IAC 5-4.  A “buoy” is a form of navigation aid.  312 IAC 5-2-23(1).

 

20. As provided in pertinent part at 312 IAC 5-4-1:

 

(a) [312 IAC 5-4] governs the placement of any navigation aid or water recreation structure.

(b) A person must comply with [312 IAC 5-4] before placing a navigation aid or water recreation structure on or along a public water.  Except as provided in subsections (d) and (e), a license from the [DNR’s Division of Law Enforcement] is required for the placement of a navigation aid or water recreation structure.

(c) Except as provided in subsections (d) and (e), each navigation aid must be colored white with international orange geometric shapes. If placed on the water, a navigation aid must be a buoy.

(d) A buoy that identifies a point two hundred (200) feet from the shoreline of any lake or channel under IC 14-15-3-17 is exempted from subsection (c). This exemption does not apply to Lake Michigan or where the [Division of Law Enforcement] determines the exemption will be contrary to safe and lawful watercraft usage.

(e) This rule does not apply to a navigation aid or water recreation structure located within one hundred fifty (150) feet from the waterline or shoreline of a public freshwater lake or to a mooring buoy….

 

21. As a consequence of 312 IAC 5-4-1, a navigation aid placed in public waters must comply with subsection (c) unless the buoy “identifies a point two hundred (200) feet from the shoreline of a lake or channel under IC 14-15-3-17 or is located within 150 feet of the shoreline or water line of a public freshwater lake.  The evidence is unrefuted that the orange buoy is considerably more than 200 feet from the shoreline or water line of Lake Pleasant. 

 

22. In addition, the Lake Pleasant Homeowners Association describes a purpose for the orange buoy which is inconsistent with 312 IAC 5-4-1(d).  As stated in the subsection, and as confirmed by testimony from First Sergeant William Snyder of the DNR’s Division of Law Enforcement, the sole purpose for such a buoy is to assist in identifying a point 200 feet from the shoreline of a lake.  The Indiana General Assembly has established an “idle speed” zone for motorboats operated within 200 feet of the shoreline of a lake.  IC 14-15-3-17.

 

[VOLUME 11, PAGE 154]

 

23.  The orange buoy does not qualify for an exemption from the requirements of 312 IAC 5-4-1(c). 

 

24. 312 IAC 5-4-1(c) requires that “each navigation aid must be colored white with international orange geometric shapes.”  The specifications for geometric shapes are set forth by description and with illustrations at 312 IAC 5-4-6.  A vertical, open-faced diamond shape means danger.  Other geometric shapes provide other navigation requirements, information or directions.

 

25. The orange buoy is required to be licensed by the DNR’s Division of Law Enforcement but is unlicensed.  The orange buoy does not satisfy the licensure requirements of 312 IAC 5-4-1 and could not lawfully be licensed at its current location.  The sole function, for a buoy colored as is the orange buoy, is to help identify a point 200 feet from the shoreline or water line of Lake Pleasant, but the orange buoy is placed 350 to 400 feet from the shoreline.

 

26. Under proper circumstances, the establishment of a special watercraft zone by statute or rule, or the placement of a buoy which is licensed and qualifies as a navigation aid, could be considered in determining the propriety of the placement of a temporary pier. Determining the placement of a temporary pier cannot be founded, in whole or in part, on a buoy which is unlicensed and which does not conform to legal requirements for coloring and geometric shapes.  The orange buoy provides no basis for consideration of the propriety of the temporary pier that is sought in PL-20,551.[1]

 

E. Qualification to Place a Temporary Pier under PL-20,551

 

27. Clauss owns Lot 29 in the Plat of Pleasant Shores Second Addition, Lake Pleasant.  Lot 29 abuts Lake Pleasant, and Clauss is a “riparian owner”.  He is eligible, under 312 IAC 3-1, for the benefits of a general license to place a qualified temporary pier lakeward of Lot 29.

 

28. In order to place a temporary pier that does not meet the conditions for a general license under 312 IAC 3-1, a person must apply for a written license and must meet the burden of proving the person is entitled to a written license.  Clauss seeks to place a temporary pier, with two boat lifts and a ski lift, which would extend 185 feet from the shoreline or water line of Lake Pleasant.  Because these structures would extend more than the maximum 150 feet from the shoreline that is described by 312 IAC 11-3-1(a)(5), Clauss applied for a written license. 

 

[VOLUME 11, PAGE 155]

 

29. The structures sought to be placed by Clauss are depicted in a survey prepared for him by James D. Burlage, a Registered Indiana Land Surveyor, and admitted into evidence as Stipulated Exhibit B:

 

 

30. The property immediately adjacent and north of Lot 29 is owned by Walter and Sharon David (the “Davids”), and Clauss and the Davids have bordering riparian zones within Lake Pleasant. 

 

31. In the summer of 2004, Conservation Officer Donald Warner was requested to respond to a complaint by the Davids that a pier placed by Clauss encroached upon the Davids’ riparian zone.  Warner visited the site and offered his opinion that the line separating their riparian zones was properly an extension of the terrestrial line separating Lot 29 and the Davids’ property.  He informed the Davids and Clauss that he believed the Clauss pier encroached on the Davids’ riparian zone. 

 

[VOLUME 11, PAGE 156]

 

32. Clauss testified that following Warner’s visit, Clauss and Walter David reached an informal agreement.  Clauss was allowed to leave his pier in place for 2004, but he promised to relocate the pier in subsequent years so as not intersect the terrestrial property line with the Davids extended lakeward.  Clauss testified since 2004, he and the Davids have not had a dispute regarding pier placement.

 

33. James D. Burlage identified the boundaries of Lot 29 and provided water depth profiles along the lakeward extension of the terrestrial line separating Lot 29 and the Davids’ property.  Along this line at the legally established level of Lake Pleasant, Burlage determined the depth at 150 feet from the shoreline or water line was 3.2 feet (approximately 38 inches) and at 185 feet was 4.2 feet (approximately 50 inches).  Stipulated Exhibit B depicted in Finding 29.

 

34. On January 12, 2007, First Sergeant William Snyder and Conservation Officer Donald Warner conducted measurements to provide water depth profiles, parallel to and ten feet southeast of, the extension of the terrestrial line separating Lot 29 and Davids’ property.  Snyder stood along the shoreline and held a 200-foot long tape measure.  Warner waded into Lake Pleasant pulling the end of the tape measure.  At approximately 150 feet from the shoreline or water line, Warner measured the depth as 38 inches and at 185 feet as 39 inches.  Snyder and Warner did not determine the relationship of the actual elevation of Lake Pleasant on the date of their measurements to the legal elevation of Lake Pleasant.

 

35. The measurements by Burlage are found to be dependable and accurate. 

 

36. The measurements by Snyder and Warner are accorded less credibility than those of Burlage.  Even so, the measurements by Snyder and Warner have some probative value.  The practical identity of depths found by Burlage at 150 feet along the extended terrestrial line separating Lot 29 and Davids’ property, compared with depths found by Snyder and Warner ten feet southeast of that line, lend credibility to the their measurements. 

 

37. The preponderance of the evidence supports a finding that the differences in depth found by Burlage at 185 feet (50 inches), relative to depth found by Snyder and Warner at 185 feet but ten feet southeasterly (39 inches), is in significant part attributable to an overall increase in lake depth moving from south to north.  Sgt. Snyder testified the water was deeper extending generally northerly and remaining 185 feet from the shoreline, and he identified a “Florida-shaped” depression discernable on Stipulated Exhibit D in support of his testimony.  This general trend is also supported by Stipulated Exhibit B where Burlage identifies a depth profile of only 2.3 feet (approximately 28 inches) along the southerly boundary of Lot 29 extended 185 feet from the shoreline.  At a distance of 185 feet from the shoreline or water line of Lake Pleasant, the depths tend to be greater moving to and beyond the northern extended boundary of Lot 29, and they tend to be shallower moving to the southern extended boundary of Lot 29.

 

[VOLUME 11, PAGE 157]

 

38. Snyder testified that a pier as proposed in Stipulated Exhibit B would pose an unreasonable hazard to safety for persons boating on Lake Pleasant.  The potential hazard would be greater for a watercraft approaching from the deeper waters north and north-north west of the proposed pier and boat lifts.  Whether an operator was motivated by wisdom or experience, the shallower waters to the south would tend to reduce the speed of a watercraft prior to reaching the proposed pier and boat lifts.  Warner offered similar testimony.[2]

 

39. Snyder also testified the law enforcement professionals within the three Districts of the DNR’s Division of Law Enforcement for Northern Indiana[3] had achieved a consensus that public safety would typically not be served by authorizing the construction or maintenance of piers and other temporary structures more than 175 feet from the shoreline of a lake containing public waters.  This limitation would provide a clearance of 25 feet between the structures and the unlimited speed zone that generally applies beginning 200 from the shoreline or waterline.  Snyder testified he believed PL-20,551 would meet minimum safety requirements if the temporary pier and boat lifts did not extend more than 175 feet from the shoreline or water line of Lake Pleasant.

 

40. Clauss testified that persons operating watercraft on Lake Pleasant almost uniformly navigate in a counter-clockwise direction.  As a consequence, a watercraft would approach the proposed pier only from the shallower waters to the south.

 

41. In response, Snyder testified that because of the proximity of Lake Pleasant to Michigan, boating operation traditions were sometimes influenced by Michigan state law.  He testified that a state statute in Michigan required boats to be operated in a counter-clockwise direction, but there was no comparable statute in Indiana.

 

42. As provided in Michigan Compiled Laws at MCL 324.80149:

 

Persons operating vessels on the waters of [Michigan] in areas not marked by well defined channels, canals, rivers, or stream courses shall operate the vessels in a counter-clockwise fashion to the extent that it is reasonably possible. These persons and persons being towed on water skis or on a water sled, kite, surfboard, or similar contrivance shall maintain a distance of 100 feet from any dock, raft, buoyed or occupied bathing area, or vessel moored or at anchor, except when the vessel is proceeding at a slow—no wake speed or when water skiers are being picked up or dropped off, if that operation is otherwise conducted with due regard to the safety of persons and property and in accordance with the laws of [Michigan].

 

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43. In the absence of a statute in Indiana similar to the Michigan statute requiring counter-clockwise operation of watercraft where “reasonably possible”, consideration cannot be given to a tradition or tendency of boaters to operate similarly to Michigan law.  Additionally, a complete reading of MCL 324.80149 reflects that the placement of a dock or raft establishes a 100-foot no-wake zone, a restriction on the operation of watercraft which supports public safety but which does not exist in Indiana statute.  In effect, the presence of a pier or boat lift 185 feet from the shoreline would restrict high-speed boating in Michigan to at least 285 feet from the shoreline, a restriction that does not apply in Indiana.  The Indiana General Assembly has developed a statutory structure for boating safety which differs somewhat from that applied by Michigan, and the difference must be recognized in determining the licensure of piers in our state.

 

44. Clauss has not sustained his burden of proving that the pier and boat lifts should be extended 185 feet from the shoreline or water line of Lake Pleasant as depicted in Stipulated Exhibit B.  Doing so would unduly infringe on the public rights described in IC 14-26-2-5, particularly those associated with safe boating and navigation, and would be inconsistent with the appropriate management of watercraft operations under IC 14-15.

 

45. The evidence does support a modification of the denial of PL-20,551 to authorize Clauss to place a pier and boat lifts as depicted in Stipulated Exhibit B, but with the added restriction that no portion of these structures should extend more than 175 feet from the shoreline or water line of Lake Pleasant (as contrasted to 185 feet from the shoreline as depicted in Stipulated Exhibit B).  No portion of the pier, boat lift or moored boat should be located within ten feet of the line identified in Stipulated Exhibit B as the property line extended—Profile Line “A”, although a minimal extension of the canopy should not be prohibited provided it would not interfere with navigation.[4]