[CITE: Yoder v. DNR & Bouwkamp, 12 CADDNAR
88 (2009)]
[VOLUME 12, PAGE 88]
Cause #: 07-205W
Caption: Yoder v. DNR
& Bouwkamp
Administrative Law
Judge: Lucas
Attorneys: Diggins
(Yoder); Boyko (DNR); Snyder (Bouwkamp)
Date: August 11, 2009
FINAL ORDER
[NOTE: ON NOVEMBER 10, 2009, THE ADMINISTRATIVE LAW JUDGE ENTERED
ORDER APPROVING EXTENSION OF TIME TO COMPLY WITH PARAGRAPH (2) OF THE FINAL ORDER AND ADMONITION WITH RESPECT
TO FULL COMPLIANCE WITH THE FINAL ORDER.]
Consistent with these Findings of Fact and Conclusions of Law, the Commission orders:
(1) By September 15, 2009, the Claimants shall provide the $200 application fee that is required by IC § 14-28-1-22.
(2) By November 1, 2009, the Claimants shall restore the J. J. Charles Drain as nearly as practicable to the configuration which existed before the dredging activities which they began in 2002. Included shall be at least a 50-linear foot fill of the new waterway as needed to direct flow back to the J. J. Charles Drain. The Claimants shall confer with the DNR and the LaGrange County Surveyor to help assure the restoration is performed effectively and appropriately.
(3) By November 1, 2009, the Claimants shall restore the banks of the J. J. Charles Drain and shall cause the banks to be stabilized. By May 1, 2010, the Claimants shall revegetate the banks to protect them from erosion.
(4) By September 15, 2009, the Claimants shall provide the $25 application fee that was required by IC § 14-26-2-9 in 2002.
(5) By September 15, 2009, the Claimants shall remove all boats and mooring facilities from the new channel.
(6) The Claimants shall construct by November 1, 2009, and shall afterwards maintain, two glacial stone weirs across the new channel to prohibit the passage of boats but allow for the normal passage of water. Each weir must be constructed of glacial stone and extend across the channel from bank to bank. The top width (upstream to downstream) of each weir must be at least six feet, and each weir shall contain at least one twelve-inch diameter culvert to maintain flow. The top elevation at the center of each weir shall be at least 897.36 feet mean sea level. The top height of each weir shall not exceed the top of the bank.
[VOLUME 12, PAGE 89]
(7) By September 15, 2009, the Claimants shall place fencing to keep any livestock at least ten feet from the banks of the channel and shall afterwards maintain the fencing. Fencing is not required if no livestock are present.
(8) From the effective date of this order, the Claimants shall refrain from removing aquatic and woody vegetation from the channel.
(9) By July 1, 2010, the Claimants shall pay to the DNR a civil penalty in the total amount of $85,000 for their violations of the Flood Control Act and the Lakes Preservation Act. This civil penalty shall be reduced to the total amount of $1,000 if the Claimants timely comply with the requirements of paragraph (1) through paragraph (8) of this order.
(10) If the Claimants do not initiate judicial review, the Commission and its administrative law judge shall retain jurisdiction of this order until January 1, 2011 for the following purposes:
(A) The resolution of any disputes among the parties as to the application of terms in this order.
(B) For good cause, the Claimants may request an extension of time to comply with the requirements of paragraph (1) through paragraph (8). The Commission would determine whether good cause is shown, and, if so, the appropriate period and terms of an extension.
(C) Any order issued under this paragraph is subject to judicial review.
(11) Jerry J. Yoder and Leo Miller are individually and jointly responsible for compliance with these orders.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
A. Statement of the
Proceeding and Jurisdiction
1. On October 18, 2007, Jerry J. Yoder (“Yoder”) and Leo Miller (“Miller”) filed a timely written request with the Natural Resources Commission (the “Commission”) seeking administrative review of Notice of Violation V-4147-PL (the “NOV) issued by the Department of Natural Resources (the “DNR”).
2. Yoder and Miller are collectively the “Claimants”.
3. The NOV stated the DNR’s Division of Water issued the document as an enforcement action under Ind. Code § 14-25.5. The NOV stated in substantive parts with rights to administrative review and other non-substantive parts omitted:
Nature
of Violation: “On or about July 20, 2007 complaints were received by the [DNR]
regarding unpermitted construction or dredging activities on a stream and
within a half mile of
[VOLUME 12, PAGE 90]
Finding:
“The dredging project was completed within one half mile of the lake and
included dredging the bed of the channel to a depth below the lake’s legal
level. The bed of the inlet, which is
part of
Action
Appropriate to Mitigate the Violation: “The [DNR] has determined that the
following action is appropriate to mitigate the violation:
1) Leo Miller and Gary Yoder and/or
their authorized representatives shall restore the original stream channel to
its previous path. This includes removal
of the fill blocking the original channel and refilling at least a 50 linear
feet portion of the dredged channel….
The finished height of the refilled channel shall not exceed the natural
ground elevation adjoining the site. The
refilled channel plug shall be protected from erosion with site appropriate
permanent turf reinforcement mats installed per manufacturer’s specifications.
2) Leo Miller and Gary Yoder and/or
their authorized representatives shall stabilize and revegetate the restored
stream banks to protect them from erosion.
3) Leo Miller and Gary Yoder and/or
their authorized representatives shall remove all boats and dock structures
from the unpermitted channel.
4) Leo Miller and Gary Yoder and/or
their authorized representatives shall construct and maintain at least three
glacial stone weirs across the constructed channel which shall restrict boat
passage and still allow for the normal passage of water. Weirs shall be constructed at three
locations…. Each weir must be
constructed of glacial stone, extend across the channel from bank to bank, top
width (upstream to downstream) must be at least 6 feet, and shall contain at
least one 12 inch diameter culvert to maintain flow. The top elevation at the center of the weir
shall be a minimum 897.36 feet mean sea level.
The top height of the weir shall not exceed the top of bank.
5) Leo Miller and Gary Yoder and/or
their authorized representatives shall revegetate the banks and unpermitted
channel. Fencing may be needed to
restrict foot traffic/livestock from the restored channel if appropriate
fencing is not already in place. It is
intended that this unpermitted channel fill in completely with aquatic emergent
and woody vegetation similar to what was present locally.
6) This restoration of the project
must be completed with[in] 60 days of receipt of this letter.
7) Leo Miller and Gary Yoder and/or
their authorized representatives shall notify the [DNR] in writing [at the
Division of Water’s mailing address] when the work begins and again when
restoration has been completed….
For
further information regarding the actions required, please contact Mr. Kenneth
E. Smith, P.E., Assistant Director of the Division of Water” at specified local
and toll free telephone numbers.
Civil
Penalty Assessment: “Pursuant to Indiana Code 14-25.5, a person who fails to
mitigate a violation within the time set forth above is liable for a civil
penalty. The [DNR] may assess a penalty
of not more than ten thousand dollars ($10,000) for a violation. Each day during which a violation continues
may be considered a separate violation for purposes of assessing a civil
penalty.”
[VOLUME 12, PAGE 91]
4. The DNR is authorized to issue a notice of violation and to seek a civil penalty for a violation of IC § 14-26, IC § 14-28, or a rule adopted under IC § 14-26 or IC § 14-28. IC § 14-25.5-1-1, IC § 14-25.5-2-2, and IC § 14-25.5-4-3.
5. The DNR is authorized to issue a notice of violation and to seek a civil penalty for a violation of IC § 14-26-5 (the “Ditches and Lakes Act”).
6. The DNR is authorized to issue a notice of violation and to seek a civil penalty for a violation of IC § 14-28-1 (the “Flood Control Act”) and for rules adopted by the Commission at 312 IAC § 10 to assist with implementation of the Flood Control Act.
7. The DNR is authorized to issue a notice of violation and to seek a civil penalty for a violation of IC § 14-26-2 (the “Lakes Preservation Act”) and for rules adopted by the Commission at 312 IAC § 11-1 through 312 IAC § 11-5 to assist with implementation of the Lakes Preservation Act.
8. The Claimants’ written request referenced in Finding 1 initiated a proceeding before the Commission that is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC § 3-1 to assist with its implementation of AOPA. The NOV is subject to IC § 4-21.5-3-6, and the Claimants’ written request is anticipated by IC § 14-25.5-2-5 and IC § 14-25.5-4-4.
9. Stephen L. Lucas was appointed as the Commission’s administrative law judge (the “Administrative Law Judge”) to conduct this proceeding under AOPA.
10. On October 22, 2007, the administrative law judge
entered a “Notice of Prehearing Conference” and served the notice, along with
the written request referenced in Finding 1, upon the DNR. The initial prehearing conference was
scheduled for November 19, 2007 in
11. On June 4, 2008, Chris Bouwkamp, Janet E. Bouwkamp, and John Buck by their attorney moved to intervene. The Claimants and the DNR were granted until June 23, 2008 to file any objection to the motion. No objection was filed, and the motion was granted on June 24, 2008. Chris Bouwkamp, Janet E. Bouwkamp, and John Buck are collectively the “Respondent Intervenors”.
12. The Claimants, the DNR, and the Respondent Intervenors are collectively the “Parties”.
[VOLUME 12, PAGE 92]
13. Following private discussions among the Parties and between the Parties and the Administrative Law Judge, it was determined written statements of contentions could help frame the issues and expedite the disposition of this proceeding. A schedule was agreed and then ordered on January 15, 2009 for the exchange of written contentions. Each of the Parties timely filed written contentions.
14. The DNR’s statement of contentions were filed on February 9, 2009 and stated in substantive parts:
I. Violation
of IC 14-26-5 [Ditches and Lakes Act]:
….DNR
does not contend Claimants’ actions affected the lake level [of
…DNR initially contends that Jerry J. Yoder and Leo
Miller or their authorized representatives violated IC 14-26-5…. Based on aerial photographs, the violations
alleged here were committed in 2005 and before.
Therefore, the applicable law in effect at the time of the alleged
violations prohibited the following without obtaining a prior permit as
required by IC 14-26-5-3:
A
person may not:…
(2)
Order or recommend the location, establishment, construction, reconstruction,
repair, or recleaning of:
a ditch
or drain having a bottom depth lower than the normal water level of a lake
within one-half (1/2) mile of the lake without a permit from the” DNR.
…DNR is aware
that the above section was amended in 2007 but contends that the law in effect
at the time of the alleged violations applies.
Since there are overlapping requirements and violations established by
provisions of IC 14 in subsequent contentions, the 2007 amendments have no
practical effect in the context of this particular case.
Therefore,
since this activity took [place] in 2005 and before and because it was
completed without a permit, there was no payment of the permit fee; the DNR was
not able to perform an investigation of the land, water, lakes, fish, wildlife,
and botanical resources that may be affected by the proposed work; adjoining
property owners and affected parties were denied their right to comment on the
project.
Therefore,
to summarize, Claimants:
i.
Failed to apply for a [Ditches and Lakes Act] permit
ii.
Failed to pay a permit fee
iii.
Failed to provide public notice to adjoining property owners
iv.
Excavated below the legal lake level within ½ mile of lake”
II. Violation
of IC 14-28-1 [Flood Control Act]
DNR
contends that Jerry J. Yoder and Leo Miller or their authorized representatives
violated IC 14-28-1… and its administrative rules which specifically required the
following as stated in IC 14-28-1-22:…
[VOLUME 12, PAGE 93]
(c) A person who desires to:
(1) erect, make, use, or maintain a structure, an
obstruction, a deposit, or an excavation; or:
(2) suffer or permit a structure, an obstruction, a
deposit, or an excavation to be erected, made, used, or maintained;
in or on a floodway must file with the director [of
the DNR] a verified written application for a permit accompanied by a
nonrefundable fee of two hundred dollars ($200).
(d) The application for a permit must set forth the
material facts together with plans and specifications for the structure,
obstruction, deposit, or excavation.
(e) An applicant must receive a permit from the
director for the work before beginning construction. The director shall issue a permit only if in
the opinion of the director the applicant has clearly proven that the
structure, obstruction, deposit, or excavation will not do any of the
following:
(1) Adversely affect the efficiency of or unduly
restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of
life or property.
(3) Result in unreasonably detrimental effects upon
the fish, wildlife, or botanical resources.
The
activity occurred, in part, on a stream with a watershed greater than one square
mile. Failure to pay fees and obtain a
permit prior to the work denied the adjoining property owners their right to
comment on the work. The clearing,
grading and excavation of the site and the removal of all prior habitat has DNR
the ability to review the site prior to disturbance and diminished the DNR’s
ability to assess if there would be unreasonably detrimental effects upon fish,
wildlife, or botanical resources.
Therefore,
to summarize, Claimants:
i.
Failed to apply for a [Flood Control Act] permit
ii.
Failed to pay a permit fee
iii.
Failed to provide public notice to adjoining property owners
III. Violation
of IC 14-26-2 [Lakes Preservation Act]
DNR
contends that Jerry J. Yoder and Leo Miller or their authorized representatives
violated IC 14-26-2… and its administrative rules. DNR also contends that the excavation of the
channel occurred from within the lake and through the area of the inlet where
the legal lake elevation bisected the bed of the inlet. At the time the alleged violations occurred,
IC 14-26-2-9 (repealed by P.L. 152-2006, § 4, effective July 1, 2006) required:
(a) Upon written application by the owner of land
abutting a public freshwater lake and payment of a nonrefundable fee of one
hundred dollars ($100), the [DNR] may issue a permit to:
(1) change the shoreline; or
(2) alter the bed;
of a public freshwater lake after investigating the
merits of the application.
(b) As a condition precedent to granting a permit, an
applicant must, in writing, do the following:
(1) Acknowledge that all additional water area created
is part o the lake.
(2) Dedicate the additional area to the general public
use.
[VOLUME 12, PAGE 94]
In
addition, IC 14-26-2-10 prohibits the [DNR] from authorizing these activities
without giving notice and the opportunity for a public hearing. By conducting these activities, Claimants
have effectively deprived the public of the right to comment and to request a
public hearing prior to these activities taking place. IC 14-26-2-12 also requires that the applicant
prove that fifty-one percent (51%) of the property owners abutting the
shoreline of the public freshwater lake approve of the channel
construction. By constructing the
channel without a permit and without allowing for a prior inspection by DNR,
[the Claimants] have obliterated the site making it impossible to determine by
inspection if a stream was in existence at the time of the construction.
Therefore,
to summarize, the Claimants:
i.
Failed to apply for a [Lakes] Preservation Act permit
ii.
Failed to pay a permit fee
iii.
Failed to provide public notice to adjoining property owners
iv.
Excavated a channel without the prior approval of 51% of property owners
v.
Created new waters which would become part of
vi. Created
new waters which would have required a dedication to public use and
acknowledgement that it is part of the lake, (if allowed to persist)
IV. Admissions
by Claimants
…DNR
contends that Jerry J. Yoder and Leo Miller have admitted that they hired an excavator
to construct this channel into
V. Adverse
Effects on Wetlands and
…DNR
contends that the following will likely occur due to the creation of the
channel if the channel is allowed to remain in place.
·
Boat traffic
through the wetland will degrade the wetland
·
The creation of
an open water channel through the wetland has created a direct connection
between upland agricultural area with the main body of the lake and removed the
filtering effect that would have occurred from agricultural runoff flowing over
the wetland buffer and filtering through it.
This will lead to an increase in agricultural chemicals including
pesticides and nutrients within
·
The impacted
wetlands will not recover unless the boat traffic is eliminated and the
vegetation allowed to regrow.
·
The cumulative
effect of Claimants’ actions may result in significant environmental harm to
[VOLUME 12, PAGE 95]
15. The Claimants statement of contentions were filed on March 18, 2009 and stated in substantive parts:
On
January 31, 2003, the United States Army Corps Of Engineers (Army Corps)
received an Initial Complaint Report (Complaint)…from Mark Diehm of the
[DNR]. The Complaint sets forth possible
wetland violations on real property owned by Claimants. Upon receipt of [DNR’s] Complaint, the Army
Corps investigated [DNR’s] allegations and notified Claimants of the
violations.
For
nearly five (5) yeas, the Army Corps, [DNR] and Claimants worked together to
correct the wetlands violations. [DNR]
was kept informed [of] the actions taken by Claimants and the Army Corps to
restore the wetlands to Army Corps standards.
Over the course of the nearly five (5) year period of time, [DNR] agreed
and did not object to the course of action being taken by the Army Corps and
Claimants. A letter dated August 29,
2007…, from the Army Corps informed Claimants and [DNR] that the wetland
restoration was complete and in compliance with Army Corps standards.
Two
months later, in October of 2007, [DNR] notified Claimants of a violation of
the
More
galling is that [DNR’s NOV] dated October 9, 2007 states “on or about July 20,
2007 complaints were received by the [DNR] regarding unpermitted construction
or dredging….” While this may be true,
[DNR] notified the Army Corps of this problem nearly five (5) years prior to
receipt of any complaints. Moreover, for
nearly five (5) years [DNR] worked with the Army Corps and Claimants to correct
the problem. To imply this was a new
issue which [DNR] was unaware of prior to July 20, 2007 is unconscionable.
[DNR]
sat on and did not act upon its rights, was complicit with the actions taken,
and shows no excuse for their laches, therefore, the doctrine of laches must
apply. The doctrine of laches is a well
established and long recognized principal of law. For laches to apply the following is required
(1) inexcusable delay in asserting a know right; (2) an implied waiver arising from
knowing acquiesce in existing conditions; and (3) a change in circumstances
causing prejudice to the adverse party. SMDFUND, Inc. v.
[VOLUME 12, PAGE 96]
The
doctrine of laches does not turn on time alone.
A mere lapse of time is insufficient; unreasonable delay which causes
prejudice or injury is necessary. Id at
731, quoting Shafer v. Lambie, 667
N.E.2d 226, 231 (Ind. Ct. App. 1996).
The required prejudice may be created if a party, with knowledge of the
relevant facts, permits the passing of time to work a change of circumstances
by the other part, laches may bar the claim.
Id, quoting State ex rel, Attorney
General v.
[DNR]
had knowledge of the relevant facts and did nothing to assert [DNR’s]
authority. [DNR] worked with the Army
Corps and Claimant[s] to take corrective action. At no time did [DNR] raise concerns about the
direction or effectiveness of the restoration project. [DNR] allowed the issue to be resolved
without objection. Only upon completion
of the restoration project did [DNR] decide the corrective action was
inadequate, in violation of the Indiana Code and necessitated new corrective
action.
To
summarize, in 2003 [DNR] notified the Army Corps of possible violations…. For nearly five 95) years [DNR], acted in
concert with the Army Corps and Claimants to correct the wetland violation. During that time, [DNR] did not assert its
rights. Instead [DNR] allowed Claimant
to take corrective action without objection.
Only moths after the restoration project was complete did [DNR] decide
the restoration project was inadequate or incomplete. For nearly five (5) years [DNR] sat on its
rights, therefore, all claims should be dismissed with prejudice.
II. No
Violation of IC § 14-26-5
[DNR]
contends that Claimants violated IC § 14-26-5 sometime in 2005 and before. The current version of the statute took
effect on July 1, 2007. [DNR] seeks to
charge Claimants with a violation of the pre-July 1, 2007 version of the
statute. [DNR] contends this proper
because the pre-July 1, 2007 version of the statute was the statute in place
when the alleged violation occurred.
Said version reads as follows:
A
person may not:
(1)
Locate, make, dig, dredge, construct, reconstruct, repair, or reclean; or
(2)
Order or recommend the location, establishment, construction, reconstruction,
repair, or recleaning of: a ditch or drain having a bottom depth lower than the
normal water level of a lake within one-half (½) mile of the lake without a
permit from the [DNR].
According
to the statute, it is legal to dig, dredge, construct, reconstruct, repair, or
reclean the ditch or drain having a bottom depth higher [emphasis supplied by Claimants] than the normal water level
of a lake. Accordingly, any dredging, by
Claimants, was done at a bottom depth higher than the normal water level of the
lake. More importantly, per Claimant’s
Request for Production of Document, [DNR] cannot and does not cite any
evidence, expert opinions, studies, reports or the like that Claimants dredged
at a bottom depth lower than the normal water level of the lake. Moreover, [DNR] had not provided any
evidence, expert opinions, studies, reports or the like to support their
claim. As such, there is no evidence a
violation of IC § 14-26-5 occurred.
Therefore, [DNR’s] charges should be dismissed with prejudice.
[VOLUME 12, PAGE 97]
III. No
violation of IC § 14-28-1-22
[DNR]
contends that Claimants violated IC § 14-28-1.
[DNR] does not set forth a date when this alleged violation
occurred. This is important because the
statute was amended and took affect on July 1, 2003. On or about January 31, 2003, [DNR], through
DNR Officer Mark Diehm, notified the Army Corps concerning spoil disposal from
ditch excavation.
[DNR]
contends that Claimants should be charged for violations using the law that was
in place when the violation occurred.
This is the same position [DNR] took with respect to IC § 14-26-5. However, for this charge, [DNR] seeks to
charge Claimant[s] under the amended (post July 1, 2003) version of IC § 14-28-1-22…,
which took effect after the alleged violation occurred. [DNR] was aware of the alleged violation on
or before January 31, 2003. Therefore,
[DNR] should have charged Claimants under the 2003 version of the
statute…. Nonetheless, [DNR] seeks to
charge Claimants with a violation of the amended (post July 2, 2003) version
[of] the statute…. This version of IC §
14-28-1-22 was not in effect at the time of the alleged violation.
[DNR] is
inconsistently cherry picking the version of a statute that subjects Claimants
to the harshest penalties. Here, [DNR]
charged Claimants with the violation of a version of a statute that was not in
place when the alleged violation occurred.
As such, the charge against Claimants for violating IC § 14-28-1-22
should be dismissed with prejudice.
IV. No
Violation of IC § 14-26-2
[DNR]
seeks to charge Claimants with a violation of IC § 14-26-2-9 (repealed July 1,
2006)…. Again [DNR] seeks to cherry pick
the version of the statute most advantageous to [DNR’s] case. IC § 14-26-2-9 was amended July 1,
2003…. [DNR] was aware of the alleged
violation on or before January 31, 2003; however, [DNR] charged Claimants with
the amended (post-July 1, 2003)…version of the statute. Again, Claimants remind the court that [DNR]
stated Claimants should be charged under the statute in effect at the time of
the alleged violation…. Unfortunately,
[DNR] failed to cite the proper version of the statute in effect at the time of
the alleged violation. Therefore,
[DNR’s] claim against Claimants for a violation of IC § 14-26-2-9 should be
dismissed with prejudice.
Secondly,
[DNR] contends that Claimants changed the shoreline or altered the bed of a
public freshwater lake in violation of IC § 14-26-2-9. However, [DNR] cannot and has not provided
any evidence of alteration. As mentioned
in Article I, [DNR] worked with the Army Corp and Claimants to restore the area
in question. At the time, [DNR] voiced
no opposition to the restoration process.
Nonetheless, months after completion of the restoration process, which
[DNR was involved, [DNR] sought to allege a violation of the Indiana Code. As such the doctrine of laches (as discussed
in Article I) should apply and this charge should be dismissed with prejudice.
V.
Alleged Adverse Effects on Wetlands and
[VOLUME 12, PAGE 98]
Claimants
are unable to properly respond to [DNR’s] Section V, Adverse Effects on
Wetlands and
Since
2003, [DNR] had ample time to conduct any number of environmental studies,
raise any issues itself or bring said issues to the attention of the Army Corps
and/or Claimants. Instead, [DNR] worked
in conjunction with the Army Corps and Claimants. The area in question was restored to the
satisfaction of the parties involved.
Subsequently, [DNR] did not conduct and has not cited any evidence
supporting the conclusion drawn in Article V.
As such, [DNR’s] completely new assertions of possible negative
environmental effects are without basis, merit or support and should be
dismissed with prejudice.
VI.
Conclusion
In
conclusion, this case should be dismissed with prejudice. [DNR] was aware of the alleged violations on
or before January 31, 2003. [DNR]
notified the Army Corps of alleged violations.
For the next five years, [DNR], Claimants, and the Army Corps worked
together to restore the area in question.
Upon completion of the restoration project, only then did [DNR] notify
Claimants of a violation of the Indiana Code.
Because of this delay the doctrine of laches should apply and all claims
should be dismissed with prejudice.
Secondly,
Claimants did not dig, dredge, construct, reconstruct, repair, or reclean a
ditch or drain having a bottom depth lower than the normal water level of a
lake. [DNR] cannot provide any evidence
to the contrary. Therefore, [DNR’s]
claim that Claimants violated IC § 14-26-5 should be dismissed with prejudice.
Thirdly,
[DNR] contends Claimants should be charged under the version of the statutes
that was in effect when the violation occurred.
[DNR] alleged Claimants violated IC § 14-28-1, however, the version of
the statute cited by [DNR] was not in effect when the alleged violation
occurred. Therefore, [DNR’s] claim that
Claimants violated IC § 14-28-1 should be dismissed with prejudice.
Fourthly,
[DNR] contends Claimants should be charged under the version of the statutes
that was in effect when the violation occurred.
[DNR] alleged Claimant violated IC § 14-26-2, however, the version of
the statute cited by [DNR] was not in effect when the alleged violation
occurred. Therefore, [DNR’s] claim that
Claimants violated IC § 14-26-2 should be dismissed with prejudice.
Fifthly,
[DNR] contends Claimants changed the shoreline or altered the bed of a public
freshwater lake in violation of IC § 14-26-2-9.
[DNR] cannot and has not provided any evidence of the alteration. Moreover, [DNR] waited nearly five (5) years
to charge Claimant. As such the doctrine
of laches should apply and this charge should be dismissed with prejudice.
[VOLUME 12, PAGE 99]
16. The Respondent Intervenors’ statement of contentions were filed on March 31, 2009 and stated in substantive parts:
1.
Respondent Intervenors join in the Statement of Contentions filed by the [DNR]
on February 9, 2009.
2. The
defense of laches does not apply to Respondent Intervenors since Respondent
Intervenors had no knowledge of the Claimants’ violations and immediately upon
believing violations had occurred contacted the [DNR].
3. The
channel dug by Claimants violation I.C. 14-26-5 (in effect in 2005) because the
depth of a portion of the dredging within one-half (½ ) mile of
4. The
actions of Claimants all took place without appropriate statutory notice to the
residents of
5.
Approval of Claimants’ activities by the
17. The Commission is the “ultimate authority” for the DNR under AOPA with respect to IC § 14-26 and IC § 14-28. IC § 14-10-2-3
18. The Commission has jurisdiction over the persons of the Parties and over the subject matters of this proceeding.
19. The issues are framed primarily by the statements of
contentions set forth in Finding 14 through Finding
16.
20. A hearing was conducted as scheduled in
21. On June 5, 2009, the “Respondent DNR’s Post-Hearing Brief” and the “Brief of Respondent Intervenors” were timely filed. The Claimants opted not to file either a brief or proposed findings of fact and conclusions of law with a recommended order.
22. The proceeding is ripe for disposition.
[VOLUME 12, PAGE 100]
B. Burdens of Proof
23. “At each stage of the
proceeding, the agency or other person requesting that an agency take
action…has the burden of persuasion and the burden of going forward with the
proof of the request.” IC
4-21.5-3-14. Where an agency or other
person seeks the imposition of a sanction, it has the burden of persuasion and
the burden of going forward (sometimes collective referred to as the “burden of
proof”). Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (1992
24. DNR has the burden of proof with respect to the elements of a notice of violation. A. Lusher v. DNR, 11 Caddnar 124 (2007).[1] The DNR has the burden of proof with respect to the NOV. To the extent the Respondent Intervenors support the imposition of the NOV, they have the burden of proof.
25. The Claimants urge they are entitled to relief from the NOV based upon laches.
26. AOPA recognizes the applicability, under proper circumstances, of affirmative defenses. For an affirmative defense, the burden of proof rests with the person seeking its protection. “Before the hearing on which the party intends to assert it, a party shall, to the extent possible, disclose any affirmative defense specified by law on which the party intends to rely. If a prehearing conference is held in the proceeding, a party notified of the conference shall disclose the party’s affirmative defense in the conference.” IC § 4-21.5-3-14(c).
27. 312 IAC § 3-1-4(b) provides that “A party wishing to assert an affirmative defense…shall do so, in writing, filed and served not later than the initial prehearing conference, unless otherwise ordered by the administrative law judge.”
28. Although AOPA does not identify what are affirmative
defenses, Trial Rule 8(c) lists laches.
Under proper circumstances, a person may assert and prove laches as an
affirmative defense in a proceeding before the Commission. Belcher & Belcher v. Yager-Rosales, 11 Caddnar 79 (2007).
29. The Claimants
have made a timely assertion of laches.[2] If the preponderance of evidence otherwise supports
issuance of the NOV, the Claimants would have the burden of proving that laches
entitles them to relief.
[VOLUME 12, PAGE 101]
C. Construction of the NOV and Applicable
Statutes
30. A notice of
violation issued under IC §
14-25.5 is required to include the contents set forth in IC § 14-25.5-2-3:
31. A notice of violation under IC § 14-25.5 is a document which is subject to administrative review under IC § 4-21.5-3-6. IC § 14-25.5-2-4 and IC § 14-25.5-2-5.
32. A critical element for a document, which provides
foundation for administrative review under AOPA, is that it must demonstrate
the “ultimate authority” has subject-matter jurisdiction. Where a person establishes the administrative
forum has subject-matter jurisdiction, a view generally supporting inclusion
must properly be taken toward construing the document. Huffman
v. Office of Environmental Adjudication, 811 N.E.2d 806 (
33. “…[A]dministrative pleadings are to be liberally
construed and amended.”
34. The NOV established the Commission has subject-matter jurisdiction in this proceeding and additionally met the essential elements of IC § 14-25.5-2-3.
35. Where a petitioner establishes an ultimate authority has
jurisdiction over the subject matter, but the petition is otherwise flawed or
deficient, the ultimate authority must grant an opportunity to the petitioner
to plead over.
36. The Administrative Law Judge determined written statements of contentions would help frame the issues and expedite the disposition of this proceeding. The Parties agreed upon a schedule and were then ordered to exchange written contentions consistently with the agreed schedule. Each of the Parties timely filed written contentions. None of the Parties moved for relief pertaining to the exchange. Any flaw or deficiency which might have existed with the NOV or with the request for administrative review of the NOV has been cured by the exchange of contentions. The contentions adequately frame the issues for administrative review.
[VOLUME 12, PAGE 102]
37. In 2006, the Claimants authorized and caused conduct of the activities which are the subject of the NOV. At the commencement of the hearing held on June 5, 2009, the Parties stipulated the subject activities predated amendments to two statutory sections, and the repeal of a third, which provide the statutory bases for the NOV. These statutory sections are IC § 14-26-5-3 (amended by P.L. 20-2007, SEC. 1); IC § 14-26-2-12 (amended by P.L. 6-2008, SEC. 8); and IC § 14-26-2-9 (repealed by P.L. 152-2006, SEC. 4).
38. The Parties contested in briefs and oral arguments which versions of IC § 14-26-5-3, IC § 14-26-2-12, and IC § 14-26-2-9 should be applied to this proceeding.
39. Whether a statute or rule is to be applied retroactively
depends on the legislative intent.
Absent an express indication otherwise, the Indiana General Assembly is
presumed to have intended that the enactment, amendment, or repeal of a statute
is intended to be applied prospectively only.
DNR v. United Minerals, Inc.,
686 N.E.2d 857, 855 (
40. Except as subsequently discussed in these Findings, IC §
14-26-5-3, IC § 14-26-2-12, and IC § 14-26-2-9 should be applied as they
existed before the amendments and the repeal referenced in Finding 37.
41. The NOV and the DNR’s statement of contentions aver violations of three distinct regulatory programs.
(1) IC § 14-26-5 (the “Ditches and Lakes Act”)
(2) IC § 14-28-1 (the “Flood Control Act”), including rules at adopted at 312 IAC § 10.
(3) IC § 14-26-2 (the “Lakes Preservation Act”), including rules adopted at 312 IAC § 11-1 through 312 IAC § 11-5.
These three regulatory programs must be considered separately with a view to their potential application to the Claimants’ activities which are at issue.
D. Hearing and Undisputed
Evidence of General Application
42. Persons who testified at hearing were Janet E. Beauwkamp, John Wesley Eggen, Dallas Kunkle, Rex Richard Pranger, Jeremy Dean Price, and Jerry J. Yoder.
43. Janet E. Bouwkamp (“Bouwkamp”) testified she has resided
on
44. John Wesley Eggen (“Eggen”) testified he is an employee
of the DNR. Since March 2007, he has
been Supervisor of the Compliance and Enforcement Section of DNR’s Division of
Water. Eggen was Supervisor of the
Environmental Unit in the DNR’s Division of Fish and Wildlife from March 2004
to March 2007. For the six months
previously, he was the statewide environmental biologist for the Division of
Fish and Wildlife. Before employment
with the State of
[VOLUME 12, PAGE 103]
45. Dallas Kunkle (“Kunkle”) testified he has been a
periodic seasonal resident and visitor to
46. Rex Richard Pranger (“Pranger”) has been the LaGrange
County Surveyor since 1986. Through his
professional responsibilities as Surveyor, he has gained considerable
familiarity with
47. Jeremy Dean Price (“Price”) testified he is an employee
of the DNR’s Division of Fish and Wildlife.
Since May 2007 he has been the Lakes Compliance Biologist, and, as such
conducts compliance and enforcement inspections for activities as they pertain
to public freshwater lakes in
48. Jerry Yoder has resided in
49. Yoder testified he and Miller were in charge of the excavations that resulted in construction of the existing channel. Most of the work took place in fall 2002, with completion occurring in spring and summer 2003 “after the Army Corps was there”[3] to provide instructions. The Claimants subsequently performed seeding and plantings to support mitigation, with the Army Corps issuing its final approval in the summer 2007. Yoder’s testimony in this regard is undisputed.
50. The Parties agree the Claimants never applied for and were never granted a permit from the DNR for the site at issue with respect to the Ditches and Lakes Act, the Flood Control Act, or the Lakes Preservation Act. The Parties also agree that the Claimants never paid a permit application fee to the DNR.
51. In addition to the testimony of witnesses, exhibits were offered and admitted into evidence. Most were entered by stipulation.
E. Ditches and Lakes
Act
52. The Ditches and Lakes Act applies to a freshwater lake having an area of at least ten acres. IC § 14-26-5-1.
53. Eggen testified he used the DNR’s G.I.S. system to
calculate the perimeter and determine the approximate acreage of
[VOLUME 12, PAGE 104]
54. In 2002 and 2003, the Ditches and Lakes Act required a DNR permit before a person could lawfully “order or recommend the location, establishment, construction, reconstruction, repair, or recleaning of…a ditch or drain having a bottom level lower than the normal water level of a lake within one-half (½) mile of a lake” having at least ten acres. IC 14-26-5-3. See, formerly, IC 13-2-15 discussed at Western Otter Lake POA v. Department and Steuben Co. Drain. Bd., 6 Caddnar 10 (1991).
55. The terms “ditch” and “drain” are not defined in the Ditches and Lakes Act. The terms “ditch” or “drain” are defined for drainage districts at IC § 14-27-8-3, but the definition is not instructive to the present context. The Commission has not adopted rules to assist with the implementation of the Ditches and Lakes Act.
56. During questioning by the Respondent Intervenors, Pranger testified a “reasonable definition” for a “ditch” was something that was manmade and used for the purpose of draining unusually wet soil to allow it to be tilled, and that carries away surface water, usually to a natural body of water.
57. Similarly, a “ditch” has been defined generally as “An artificial open channel dug in earth or rock for the conveyance of water usually for drainage or irrigation.” As a structure, a “drain” has been defined as a waterway “that carries off surface water.” R. Beck, 6 Waters and Water Rights 1245 (Matthew Bender 1991).
58. Both Pranger’s definition and Beck’s definition reasonably address the concept of ditch or drain for purposes of IC § 14-26-5-3. By either definition, the Claimants in 2002 and 2003 constructed or reconstructed a ditch or drain.
59. Eggen testified that to verify the activities by the
Claimants were within one-half mile of
60. Eggen testified on examination by the Respondent Intervenors
that the bottom of the ditch or drain dredged by the Claimants was lower than
the normal water level of
61. On re-cross examination by the Claimants, Eggen
testified to the legal level of
62. Yoder testified on cross-examination by the Respondent
Intervenors that, as a consequence of dredging, the water level of the ditch or
drain is now below the legal elevation of
63. In 2002 and 2003, the Ditches and Lakes Act required the
Claimants to obtain a DNR permit under the Ditches and Lakes Act before they
could lawfully construct or reconstruct the ditch or drain. The constructed or reconstructed ditch or
drain was within one-half mile of
[VOLUME 12, PAGE 105]
64. In 2007, the Indiana General Assembly amended IC § 14-26-5-3 to add a new subsection (a) to exempt qualified construction activities on a ditch or drain:
P.L. 28-2007, SEC. 1.
65. Consistent with conclusions in Finding 145, the Claimants’ construction or reconstruction of the ditch or drain appears to satisfy IC § 14-26-5-3(a)(1) and IC § 14-26-5-3(a)(2). In making this Finding, the observation is that these subdivisions do not specify a minimum percentage of water which empties into a lake. In the absence of statutory or regulatory clarification, some water is determined sufficient to satisfy the exemption.
66. The Ditches and Lakes Act does not prescribe what are best management practices for soil and erosion control under IC § 14-26-5-3(a)(3). Similarly, rules have not been adopted to prescribe those practices.
67. Activities involving the filling, dredging, and
alteration of wetlands and special aquatic sites are regulated broadly under
the Clean Water Act. Section 404 of the
Clean Water Act regulates the discharge of dredged or fill material into the
waters of the
68. Army Corps exercise of Federal jurisdiction under
Section 404 of the Clean Water Act has no direct legal application to this
proceeding. But in the absence of an
69. The preponderance of the evidence supports a finding that today the activities of the Claimants would, under IC § 14-26-5-3(a), be exempted from the Ditches and Lakes Act.
70. Through IC § 14-25.5, the Indiana General Assembly authorized the DNR to issue a notice of violation and a civil penalty for a violation of the Ditches and Lakes Act. This authority provides for the implementation of punitive statutes. In enacting IC § 14-26-5-3(a), P.L. 28-2007, SEC. 1 changed the punitive statutes.
71. Although penal statutes are not to be read so narrowly
that they exclude proceedings they fairly cover, the courts conventionally
construe penal statutes strictly against the State. Mayes
v. State, 744 N.E.2d 390 (
72. Changes in punitive statutes are generally construed in
favor of those who would be penalized. Green v. Robert Shaw-Fulton Controls Co.,
204 F. Supp 117 (S.D.
[VOLUME 12, PAGE 106]
73. When a question arises over the imposition of a harsher
penalty or a more lenient one, a “rule of lenity” should be applied in favor of
the person penalized. Ross v. State, 729 N.E.2d 113 (
74. The rule of lenity should be applied so that the Claimants benefit from the exemption accorded to their activities under IC § 14-26-5(a). As a consequence, the portion of the NOV asserting a violation of the Ditches and Lakes Act should be vacated, and a final order should be entered consistently with this vacation.
F. Flood Control Act
75. Apart from exceptions inapplicable to this proceeding, the
Flood Control Act requires a person to file a nonrefundable $200 application
fee and obtain a DNR permit for work before beginning construction in a
floodway. “The application for a permit must set forth the material facts
together with plans and specifications for the structure, obstruction, deposit,
or excavation.” An activity qualifies
for a permit only if “the applicant has clearly proven that the structure,
obstruction, deposit, or excavation will not do any of the following:
(1) Adversely affect the
efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable
hazard to the safety of life or property.
(3) Result in unreasonably
detrimental effects upon fish, wildlife, or botanical resources.” IC § 14-28-1-22.
76. As provided in 312 IAC § 1-1-16:
Sec. 16. “Floodway”
means:
(1) the channel of a
river or stream; and
(2) the parts of the
flood plain adjoining the channel that are reasonably required to efficiently
carry and discharge the flood water or flood flow of a river or stream.
77. The Flood Control Act does not specify a minimum watershed to constitute a floodway, but by rule the Commission has established a minimum of one square mile. 312 IAC § 10-1-2(c).
78. Consistent with the Flood Control Act and 312 IAC § 10, Eggen testified a permit was required within the “floodway” of a river or stream. “You have a floodway if the watershed has a drainage in excess of one square mile.”
79. Based upon these statutory and regulatory requirements, Eggen testified the DNR calculated the drainage “immediately upstream of where” the Claimants conducted activities in 2003 and 2004. The calculations determined a watershed “of about 1.44 square miles.” As a result, he testified all of the Claimants’ channel work would have been subject to the permitting requirements of the Flood Control Act.
80. In addition, introduced into evidence was a DNR memorandum dated April 29, 2009 in which Darrin Miller, Professional Engineer and Hydraulic Engineer, reported at the site:
A
drainage area of 1.44 square miles was determined base[d] on the USGS
quadrangle map. The area is an average
of 3 measurements taken from the map: 1.441, 1.434, and 1.449. These are confirmed by the USGS internet
application StreamStats, which determines drainage area of waterbodies within
the State of
Respondent’s Exhibit G.
[VOLUME 12, PAGE 107]
81. The evidence described in Finding 79 and Finding 80 is unrefuted and persuasive. The work performed by the Claimants was located in a “floodway” and is within a geographic scope of the Flood Control Act.
82. Bouwkamp testified her first observation of the
Claimants’ dredging activities was by boat in July 2007. She noted brush had been piled up and lilies
uprooted. In the initial few hundred
feet from the main body of
83. On August 30, 2007, Eggen inspected the site at issue by boat. He was accompanied by Price, Patricia Clune, and Conservation Officer Robert Duff.
84. Eggen testified the work undertaken by the Claimants had
already occurred before the August 30 inspection so “we were unable to assess
the site conditions” prior to activities as would ordinarily be the circumstance
for consideration of a permit application.
“The best we could do is look at the surrounding areas and also use
aerial photographs, historic maps, that sort of stuff, just to get an idea of
what the site was like and try to look at it as if a permit was being applied
for.” He said he viewed aerials taken in
2005 for the State of
85. Eggen testified he also met with the Claimants on May 8, 2008 in an attempt to achieve a settlement. During this meeting, Eggen was accompanied by Price and Matt Buffington. He asked Yoder and Miller to describe what the waterway “was like before the excavation since we didn’t have any pictures of the site prior to the excavation. At that point, I was told that it was basically a shallow depression in the soil in that area, and it really didn’t hold water at all times. It was the first area to accumulate water during rainfall events….”
86. In a Memorandum describing the May 8, 2008 meeting, Eggen reported the Claimants were:
…asked
about the prior depth and condition or flow of the channel prior to dredging
since they maintain that there was an existing channel. [The Claimants] stated that while it was dry
most of the time it was the first area that pooled rain and also that they were
able to take a john boat down it to the lake in the 80’s during the
flooding. When asked about the
excavation, [the Claimants] replied that the excavator came in during a very
dry spell and was able to excavate most of the way to the lake but after the
turn to the lake they got into peat and no longer had a stable bottom to work
from. At this point [the Claimants] were
working in the water.
While on
the water of the channel Jon Eggen asked about what happened to the [J. J.
Charles Drain] that used to run straight from the Northwest and through the
wetlands. [The Claimants] replied that they
had filled [the J. J. Charles Drain] with material that was dug out making the
new channel. They also replied that they
had walked down the [J. J. Charles Drain] in the past and that is [sic., it] was hard to tell where it was
due to the brush….
Respondent’s Exhibit F.
[VOLUME 12, PAGE 108]
87. Yoder testified he was familiar with the area where dredging occurred, in part because he regularly hunted the area. On cross-examination by the DNR, Yoder testified his original reason for dredging the waterway was to obtain additional pastureland. In the spring and fall, the acreage was wet but was drier in the summer. Yoder testified he intended to grade the area when he did not understand he would “get in trouble” for doing so.
88. Eggen testified that the Claimants told him during a
meeting in May 2008 that the site of the new waterway was normally a “shallow
depression” and not full of water.
During the same meeting, the Claimants informed him they had used spoil
from their construction activities to close the J. J. Charles Drain which
formerly emptied into
89. On cross-examination by the DNR, Pranger testified the
channel constructed by the Claimants was not located at a “regulated drain”[5]. He said the J. J. Charles Drain is within the
general vicinity, however, and extends at roughly a 45º angle to the outlet
from
90. By clearing the site and excavating the new waterway, with the resulting removal of natural habitat, the Claimants have denied DNR the ability to evaluate the site before making a permitting decision under the Flood Control Act. In particular, the Claimants’ activities impeded the ability of the DNR to evaluate whether the Claimants’ activities would have likely resulted “in unreasonably detrimental effects upon fish, wildlife, or botanical resources” under IC § 14-28-1-22(e)(3).
91. A person must not gain an advantage in the Flood Control
Act’s permitting process because the person destroyed natural resources, and
the value of those resources becomes less obviously ascertainable as a result
of the unpermitted activities. Shoaff Mullin, and DeVille v.
92. The Claimants’ construction of the waterway was an “excavation”, and the placement of spoil materials in the surrounding wetlands a “deposit” for which the Claimants were required to obtain a permit under the Flood Control Act. The requisite permit was not obtained. Although the extent of harm is now difficult to assess, the preponderance of the evidence is that the Claimants’ unpermitted activities resulted in detrimental effects upon fish, wildlife, or botanical resources. The Claimants are the primary cause of the difficulty in providing an assessment, and they cannot rightfully gain an advantage from their unpermitted activities.
93. Eggen testified the Claimants informed him they had used
spoil from their construction activities to close another channel into
94. During questioning on rebuttal by the Respondent
Intervenors, Eggen testified the reference in paragraph 1) of the NOV, which
stated “Leo Miller and
[VOLUME 12, PAGE 109]
95. The Claimants should be required to perform remediation for their violation of the Flood Control Act. The most appropriate remediation would be as follows:
A. The
Claimants shall provide the $200 application fee required by IC 14-28-1-22.
B. The
Claimants shall restore the J. J. Charles Drain as nearly as practicable to the
configuration which existed before the dredging activities which they began in
2002. Included shall be at least a
50-linear foot fill of the new waterway as needed to direct flow back to the J.
J. Charles Drain. The Claimants shall
confer with the DNR and the LaGrange County Surveyor to help assure the
restoration is performed effectively and appropriately.[6]
C. The
Claimants shall restore the banks of the J. J. Charles Drain and shall cause
the banks to be stabilized and revegetated to protect them from erosion.
G. Lakes Preservation
Act
96. The Lakes Preservation Act applies to a “public freshwater lake” as defined by IC § 14-26-2-3 and 312 IAC § 11-2-17. Under either definition and apart from exceptions inapplicable to this proceeding, a “public freshwater lake” means “a lake that has been used by the public with the acquiescence of a riparian owner.” With amendments made to the Lakes Preservation Act in 2008, to qualify as a “public freshwater lake”, the lake must also include a minimum of five acres. IC § 14-26-2-1.5(4).
97. Yoder testified on cross examination that a public
access site is located on
98. “The Indiana Legislature defines ‘public freshwater
lake’ as ‘a lake that has been used by the public with the acquiescence of a
riparian owner’. 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 (
99.
100.
101. In July 2007 while participating in an unrelated lake
inspection with representatives of the DNR and the Army Corps, Price traveled
by boat from
102. Kunkle testified that from at least 1961, “You could go
anywhere you wanted to go, and there were five lakes” in the vicinity of
103. As described in Finding 53,
[VOLUME 12, PAGE 110]
104. A public access site exists on
105.
106. At the time of the Claimants’ construction activities in 2002 and 2003, IC § 14-26-2-6 required:
Sec. 6. A person may not change the level of
the water or shoreline of a public freshwater lake by:
(1) excavating;
(2) filling in; or
(3) otherwise:
(A) causing a change in the area of
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
[DNR].
107. At the time of the Claimants’ construction activities in 2002 and 2003, IC § 14-26-2-9 required:
Sec. 9. (a) Upon a written application by
the owner of land abutting a public freshwater lake and payment of a nonrefundable
fee of twenty-five dollars ($25)[7],
the [DNR] may issue a permit to:
(1) change the shoreline; or
(2) alter the bed;
of a
public freshwater lake after investigating the merits of the application.
(b) As a condition precedent to granting a
permit, an applicant must, in writing, do the following:
(1) Acknowledge that all additional water
area created is part of the lake.
(2) Dedicate the additional area to the
general public use.
108. Effective July 1, 2006, IC § 14-26-2-6 and IC § 14-26-2-9 were repealed by P.L. 152-2006, SEC. 4.
109. Also effective July 1, 2006, IC § 14-26-2-23 was amended by P.L. 152-2006, SEC. 3, to add the following language:
Sec. 23. (a) Unless a person obtains a
permit from the [DNR] under this section and conducts the activities according
to the terms of the permit, a person may not conduct the following activities:
(1) Over, along, or lakeward of the
shoreline or water line of a public freshwater lake:
(A) excavate;
(B) place fill;
(C) place modify or repair a temporary or
permanent structure.
…
(3) Change the water level, area, or depth
of a public freshwater lake or the location of the shoreline or water line.
(b) An application for a permit for an
activity described in subsection (a) must be accompanied by the following:
(1) A nonrefundable fee of one hundred
dollars ($100).
(2) A project plan that provides the [DNR]
with sufficient information concerning the proposed excavation, fill, temporary
structure, or permanent structure.
(3) A written acknowledgement from the
landowner that any additional water area created under the project plan is part
of the public freshwater lake and is dedicated to the general public use with
the public rights described in [IC 14-26-2-5].
110. All statutes enacted at the same session of the
legislature should be construed in pari materia[8]
so as to give effect to each if possible.
Matter of Jaques’ Estate, 170
[VOLUME 12, PAGE 111]
111. The repeal of IC § 14-26-2-6 and IC § 14-26-2-9 and the amendments to IC § 14-26-2-23, which are referenced in Finding 109, should be considered in pari materia so as to give effect to each if possible.
112. General principles of statutory construction require
that an effort be made to give meaning to every word and phrase, and it cannot
be presumed a nullity or a meaningless statute was adopted.
113. A review of each legislative purpose served by the enactment of P.L. 152-2006 is beyond the scope of this proceeding. Three are here noteworthy, however:
(1) Broadly applicable licensure requirements under the Lakes Preservation Act were formerly included in three non-contiguous statutory sections: IC § 14-26-2-6, IC § 14-26-2-9, and IC § 14-26-2-23.[9] P.L. 152-2006 consolidated these licensure provisions into a single section: IC § 14-26-2-23. This consolidation of statutes promotes consistency and understanding by the DNR and persons responsible for obtaining a permit.
(2) IC § 14-26-2-9 formerly anticipated a two-stage process for dedication to general public use of water added to a public freshwater lake as a consequence of an activity licensed under the Lakes Preservation Act. As a “condition precedent” to licensure, an applicant was required to make a dedication (or at least a provisional dedication in anticipation of permit approval) of the new waters to public domain. IC § 14-26-2-23 removes the “condition precedent” requirement in favor of a “written acknowledgement from the landowner that any additional water area created under the project plan is part of the public freshwater lake and is dedicated to the general public use with the public rights described in” IC § 14-26-2-5. With “written acknowledgement from the landowner” replacing the “condition precedent” dedication (or provisional dedication), new water becomes public with the single stage of licensure. These statutory amendments streamline the licensure process.
(3) Indirect references in former IC § 14-26-2-6(3) are replaced with a direct reference in IC § 14-26-2-23(b)(3) to the “public rights” described in IC § 14-26-2-5. See particularly IC § 14-26-2-5(c)(1). These statutory amendments support clarity.
114. Viewed in pari materia and giving legislative import to the amendments contained within P.L. 152-2006, they would not materially change the result here. Whether applying repealed IC § 14-26-2-9 (and IC § 14-26-2-6), or whether applying amended IC § 14-26-2-23, the Claimants’ responsibilities for licensure are the same.
115. Eggen testified he used the DNR’s G.I.S. website to
calculate the amount of new lake shoreline established along
[VOLUME 12, PAGE 112]
116. On rebuttal, Eggen testified “the legal level of the
lake where it meets the shore is the shoreline.
That shoreline extends up any inlets, streams, channels, until it would
bisect the bed of the stream. In this
case, that shoreline doesn’t stop at the main body of the lake. It extends up that little inlet. At some point, when this channel was dredged,
it crossed through that area and into the lake.
Now, the lake may be up into that inlet, but it crossed through that
area, and that’s where the alteration of the shoreline occurred. By removing that upper end of that inlet, and
changing it into a channel, that’s where there was an alteration of the shoreline. And that’s how all of the shoreline of the
newly constructed channel becomes additional shoreline [of
117. Eggen testified on examination by the Respondent
Intervenors that the bottom of the waterway dredged by the Claimants was lower
than the normal water level of
118. On re-cross examination by the Claimants, Eggen
testified the legal level of
119. On direct examination Yoder testified that he did not
believe he changed the shoreline or water line of
120. Where a natural or manmade extension is attached to a public freshwater lake, and the extension is included within the legal shoreline or water line without terrestrial interruption, the extension is part of the public freshwater lake. Sims, et al. v. Outlook Cove LLC, et al., 10 Caddnar 258, 265 (2006) citing Herr v. Department of Natural Resources, 9 Caddnar 11 (2001).
121. The
evidence here is persuasive, and although Yoder may have a different personal
belief, the evidence wholly supports a legal conclusion that the unpermitted
dredging activities have established new shoreline. The shoreline or water line of
122. Without the requisite permit
under former IC § 14-26-2-9(a)(1), the
Claimants’ construction activities caused a change to the shoreline of
[VOLUME 12, PAGE 113]
123. IC § 14-26-2-12 provides:
Sec. 12. (a) The [DNR] may not issue a
permit for the construction of a channel into a public freshwater lake unless:
(1) the channel follows the path of a
stream already in existence; or
(2) the applicant proves that fifty-one
percent (51%) of the property owners abutting the shoreline of the public
freshwater lake approve of the channel construction.
(b) This section does not prevent the [DNR]
from issuing a permit to construct small private drainage channels.
124. The term “channel” is not defined in the Lakes Preservation Act or by rule.
125. In construing IC § 14-26-2-12, the Commission has applied the term “channel” to refer to an extension of the lake used to facilitate navigation. Illustrative is Herr v. DNR, 9 Caddnar 11, cited previously, where the Commission identified a channel as being a manmade structure that is more substantial than a boatwell, the purpose of which is to provide access for navigation. To similar effect is Random House Webster’s College Dictionary, p.221 (Random House, Inc. 2000) where a “channel” has been described as “a navigable route between two bodies of water.” As applied to public freshwater lakes, a channel may also provide a navigation route, which is the water equivalent of a street or alley, with termination on one end at a cul-de-sac. Illustrative is the Quiet Harbour Channel considered in Belcher & Belcher v. Yager-Rosales, 11 Caddnar 79 (2007).
126. IC § 14-26-2-12 prohibits the DNR from issuing a permit for the construction of a channel into a public freshwater lake unless one of three conditions is satisfied. First, the channel would follow “the path of a stream already in existence”. Second, the applicant has approval of 51% of the property owners abutting the lake. Third, the purpose of the channel is to provide a small private drain.
127. A “stream” is generally a narrow body of running water that flows under gravity along the land surface. Illustrative is R. Beck, 6 Waters and Water Rights 1302 (Matthew Bender 1991). A “stream” is a waterway having a source and terminus and generally having banks. Black’s Law Dictionary, 6th Ed., (West Publishing Co., 1990), p. 1421. A “stream” exists where it can be discerned by the eye as opposed to merely a drainage depression. A “stream” comes into existence where it has “a bed and banks, or sides and current.” A. Tarlock, Law of Water Rights and Resources, §3.06[2] (Clark Boardman Company 1991). In requiring at Section 12(a)(1) the identification of a stream “path”, the Indiana General emphasized the subdivision should be applied to a stream with a bed or banks, which could be readily identified, and not merely a drainage depression.
128. The testimony is in dispute as to whether a stream existed where the Claimants conducted dredging beginning in 2002.
129. Yoder testified that during dredging activities, the excavator followed as closely as possible to an existing waterway. He estimated the excavation was within three feet of the existing waterway. He testified his belief was that the waterway had previously been a “drainage ditch”.
130. Yoder testified as dredging activities moved closer to
131. Yoder testified on cross-examination by the Respondent
Intervenors that, during the driest part of the summer, “there was always a
trickle” going through the previously-existing waterway and emptying into
[VOLUME 12, PAGE 114]
132. Eggen testified, “None of the aerial photographs show a
stream or ditch going to that inlet.
Some of them show…a stream that goes to that inlet, but not on the same
path as this new channel.” The drainage
from the site “still flows into
133. In response to questions by the Respondent Intervenors,
Price testified the aerial photographs for dates prior to the Claimants’
dredging did not indicate an existing waterway “where the large excavated very
wide portion of the channel is”. The
inlet at
134. Eggen testified the Claimants told him during a meeting in May 2008 that the site of the new waterway was normally a “shallow depression” and not normally full of water.
135. Pranger testified he reviewed copies of aerial
photographs which included
136. Pranger testified he had never been to the inlet, but
he “did examine the channel that was dug” in February 2009. He did not measure where the excavation began
relative to the shoreline of
137. Pranger testified he believe the aerial photographs
constituting Claimants’ Exhibit 3 demonstrate “there was a waterway there. Whether you call it a ditch, I do believe
that it drained water into
138. On cross-examination by the DNR, Pranger testified the
waterway constructed by the Claimants was not located as a regulated drain,
although the J. J. Charles Drain, a regulated drain, exists within the general
vicinity and extends at roughly a 45º angle to the outlet from
139. Bouwkamp testified she was very familiar with the
entirety of
140. Bouwkamp testified that in late summer or early fall of
2006, her attention redirected to the area of the inlet. She “saw a boat disappear into that same
area, and I’m looking for it to start pushing itself back out—the same thing I
had to do—but it never came back. I sat
and watched…for an hour or more.”
Bouwkamp said “a couple of weeks later” she saw “a different boat” come
out of the inlet area. “Both times they
had to use an oar to get through that little area.” She did not observe any boat exit the opening
before 2006. Bouwkamp left for her
winter home in
[VOLUME 12, PAGE 115]
141. Bouwkamp testified she again investigated the site of
the inlet upon her return to
142. On cross-examination, Eggen testified the Claimants constructed a new waterway. “It’s my opinion that what’s out there now is a new channel.” He testified, “My expert opinion would be that a channel is something that someone excavates to create additional lake acreage so they can go back and forth in a lake. So, if you take a shoreline lake and expand it landward to create new water, it would be a channel.”
143. A person must not gain an advantage in the Lake
Preservation Act’s permitting process because the person conducts construction
activities which make pre-existing conditions less obviously ascertainable as a
result of the unpermitted activities. T.
Lusher, Jr. v. DNR, 11
Caddnar 137, 142 (2007).
144. The Claimants
unpermitted dredging activities make determining pre-existing conditions
difficult to ascertain, and they cannot properly gain an advantage from those
activities.
145. Applying
reasonable inferences, the preponderance of the evidence supports a conclusion
that an intermittent stream existed for a portion of the dredged area. Where the stream was discernable, the
Claimants sought to cause dredging to be performed in proximity to the stream. In other areas where dredging took place,
what existed previously was merely a shallow depression and not a stream. When dredging activities reached a substantial
wetland, the existence and depth of peat made dredging impracticable. A minor inlet existed where surface waters
drained to
146. The Claimants
do not qualify for the permitting opportunity provided by IC §
14-26-2-12(a)(1).
147. Eggen testified that the Claimants have never sought or
obtained the approval of 51% of the property owners abutting the shoreline of
148. The Claimants do not qualify for the permitting opportunity provided by IC § 14-26-2-12(a)(2).
149. Yoder testified he was
unaware whether the waterway which the Claimants dredged was previously used
for the navigation of boats.
150. Yoder testified that “one time, I think in 1982, in high water” he was able to access the lake at the inlet “in a small boat, but there was a lot of brush.” Additionally, in the winter when the water was frozen, he was sometimes able to skate to the lake. Since the excavation, there has never been a time when he could not take a boat to the lake.
[VOLUME 12, PAGE 116]
151. On cross-examination by the DNR, Yoder testified he had
two purposes for dredging. First, he
wished to obtain additional pastureland.
In the spring and fall, the acreage was wet but was drier in the
summer. He intended to grade the area
not understanding he would “get in trouble”.
Second, he wished to take a boat from his property to
152. Eggen testified the new waterway constructed by the
Claimants is approximately 50 feet wide in places, although the waterway
becomes narrower in proximity to
153. Bouwkamp testified in the summer of 2007, there were 13 boats moored in the channel. “So I know there are at least 13 boats navigating.”
154. Kinkle testified he first observed boat traffic at the
inlet in the fall of 2006, and the traffic had become frequent by 2007. Kinkle observed the inlet where the new
waterway enters
155. On cross examination by the DNR, Yoder testified he currently had two pontoon boats moored in the new waterway. He also allowed friends to use the waterway to moor boats. “We don’t aim to do a lot of it.” On cross-examination by the Respondent Intervenors, Yoder testified he let people use the waterway for access and mooring, and “we do take donations to help on the upkeep.”
156. Yoder testified he has never owned a personal watercraft and never would.
157. On rebuttal, Eggen testified a problem with connecting a new channel to a public freshwater lake is that the channel becomes part of the lake, and the landowner adjacent to the channel cannot prevent boats owned by other persons from using the channel for navigation.
158. Kunkle testified the new waterway has changed the character of the lake in two ways. First, the waterway has generated more boat traffic. Second, “from the water quality I’m now concerned because of the animals and now it dumps straight into our lake.” He added that the waterway created more shoreline which could result in “lots being sold off” and loss of value to existing shoreline properties. In terms of remediation, “Something needs to be done to stop boats from going in and out of there, and it be returned to its natural state. In an ideal world, fill it back in the way it was, but I understand the compromises have to be made. As long as they were reasonable compromises where vegetation could grow, and we could develop a filtering process again from the runoff from the animals and the chemicals.”
159. On cross-examination by the Claimants, Kunkle testified
he was not aware of any scientific study to demonstrate that construction of
the channel had caused environmental degradation to
[VOLUME 12, PAGE 117]
160. In response to questions by the Respondent Intervenors,
Kunkle testified he and other residents had recently undertaken considerable
expense to place a sewer system around
161. Bouwkamp testified that as a “property owner, I feel like we have a vested interest in protecting the lake and the water quality as far as fishing and swimming. The channel itself, it just creates more boats. So, for me it’s just an issue of the extra boat traffic, and, then, of course, I happened to get a picture of the cattle in the stream. I know that that runs into the lake, and I think that’s an issue, too.”
162. Yoder testified he did not believe the new waterway
would contribute fecal pollution to
163. During rebuttal, Eggen testified, “There have been some
water quality studies on this. In EPA, I
saw a 2006 report that showed biological impairment for
164. On cross-examination by the Claimants during rebuttal,
Eggen testified the EPA report did not identify the source of fecal
contamination to
165. Eggen testified that the new channel passes through a
wetland and forms an outlet into
166. The Claimants construction activities do not qualify for the permitting opportunity provided at IC § 14-26-2-12(b).
167. The new channel is more than 1,000 feet long, as much as 50 feet wide, and deep enough for the navigation of a variety of boats which are common to public freshwater lakes. Although one purpose of the channel was for drainage, the channel is more than a “small private drainage channel.” Another purpose was to provide for navigation.
[VOLUME 12, PAGE 118]
168. The channel has been used for
navigation by the Claimants and others, including a site for mooring upon the
tender of a “donation”. Two persons have
observed as many as 13 boats moored in the channel. The channel poses water quality challenges to
169. If the Claimants had applied
for a permit to construct a small private drainage channel, the DNR could have
conditioned the permit to minimize the adverse impacts of grazing domesticated
animals and to restrict or prohibit use of the channel for navigation. By acting without a permit, the Claimants
made conditioning impossible and have consequently threatened the water quality
of
170. The Claimants’ construction activities violated IC § 14-26-2-9(a)(1) and would today violate IC § 14-26-2-23(a)(3). These activities also violated IC § 14-26-2-12.
171. During questioning on rebuttal by the Respondent Intervenors , Eggen testified the mitigation sought in paragraph 3) of the NOV, which would require the Claimants or their authorized representatives to “remove all boats and dock structures from the unpermitted channel”, was intended to allow vegetation to re-grow in the area and restore itself as nearly as practicable to what it was before the Claimants’ excavation. In addition, these terms were intended to reduce boat traffic. Finally, there were concerns as to whether the mooring arrangement developed by the Claimants following dredging of the channel was a “group pier” or a “marina” as those terms are used in 312 IAC § 11-1 through 312 IAC § 11-5. “I believe we were addressing that as well.”
172. The Claimants should be required to perform remediation for their violation of the Lakes Preservation Act. The most appropriate remediation would be as follows:
A. The Claimants shall provide the $25 application fee that was required by IC 14-26-2-9 in 2002.
B. The
Claimants shall remove all boats and mooring facilities from the new channel.
C. The
Claimants shall construct and maintain two glacial stone weirs across the new
channel to prohibit the passage of boats but allow for the normal passage of
water. Each weir must be constructed of
glacial stone and extend across the channel from bank to bank. The top width (upstream to downstream) of
each weir must be at least six feet, and each weir shall contain at least one
twelve-inch diameter culvert to maintain flow.
The top elevation at the center of each weir shall be at least 897.36
feet mean sea level. The top height of
each weir shall not exceed the top of the bank.
D.
Fencing shall be placed and maintained to keep livestock at least ten feet from
the banks of the channel.
E. The
Claimants shall refrain from removing aquatic and woody vegetation from the
channel.
H. Laches
173. The Claimants contend the enforcement which the DNR seeks to impose is barred by laches. See, particularly, Finding 15.
174. The equitable doctrine of
laches contains three elements: (1) inexcusable delay in asserting a known
right; (2) an implied waiver from having acquiescence in existing conditions;
and (3) a change in circumstances causing prejudice to the adverse party. Gleeson
v. Preferred Sourcing, LLC, 883 N.E.2d 164, 179 (
[VOLUME 12, PAGE 119]
175. As urged in the “Respondent DNR’s Post-Hearing Brief”,
laches cannot generally be asserted against the government. See Ind.
Real Estate Comm’n v. Ackman, 766 N.E.2d 1269, 1273 (
Laches
is an equitable defense that may be raised to stop a person from asserting a
claim that he would normally be entitled to assert. Storm,
Inc. v.
176. Ordinarily a principle is
bound equally by the authority that the principal actually gives an agent and
by that the principal appears to give, but the general rule must be applied
with great circumspection when a State agency is the principal. The use of apparent authority by government
authorities to bind the State is circumscribed considerably. Crull
v. Sunderman, 384 F. 3d 453 (
177. A foundation of the Claimants’ laches claim is that a DNR employee, Mark Diehm, was aware of the Claimants construction activities in early 2003. Diehm reported the activities to the U.S. Army Corps of Engineers with the perspective the activities might have violated laws administered by the Army Corps. He also expressed the perspective the DNR’s Division of Water might also need to be notified.
178. Diehm sent a facsimile letter from his
Complaint:
Excavation in or near a County Regulated Drainage Ditch…. Spoils visible in wooded wetland area from
area near the CR 75 W curve just N of CR 500 S into the wooded wetland area of
the NW area of
NOTE: I
have not observed this complaint, I am just referring it on to your
office. Division of Water may need to be
notified as well??? I did observe about
a year ago there was a good deal of clearing just NW of the CR 75 W curve. I thought it was by the surveyor’s
office. Never did report though, another
one of those “lost” trips in the country.
I will note both areas on the NWI Maps.
The
reverse side of the facsimile letter states: DESCRIPTION OF ALLEGED VIOLATION:
Spoil disposal (from ditch excavation into wooded area[)]
Claimants’ Exhibit 1.
[VOLUME 12, PAGE 120]
179. Yoder testified that subsequent to Diehm’s notification, the Claimants worked with the Army Corps to perform remediation to the Federal agency’s satisfaction and with the belief the Army Corps was coordinating with the DNR.
180. Yoder testified the Army Corps told him he needed a permit from the Army Corps for the Claimants’ construction activities but not that he also needed a permit from the DNR. When the Claimants started the excavation in the fall of 2002, Yoder testified he did not realize he needed a permit from any agency.
181. Yoder testified the Army Corps directed the Claimants to remove the spoil from the wetlands and to replace vegetation, a project which he indicated “is done” now. The remediation required by the Army Corps took “a couple of years because we had to work with the weather.”
182. Yoder testified the Army Corps provided the Claimants with notification that the Army Corps’s requirements for mediation were satisfied. The notification was set forth in a letter from Robert M. Tucker, Chief of the Enforcement Branch for the Detroit District, which stated in substantive parts:
Dear Mr.
Yoder:
On
August 6, 2007, a field inspection was performed by one of my representatives
on your property located at
We
appreciate all of your cooperation and efforts completing the restoration on
your property in accordance with your restoration agreement dated July 15,
2003….
Claimants’ Exhibit 4.
183. Eggen testified on direct examination the DNR authority for the Ditches and Lakes Act, the Flood Control Act, and the Lakes Preservation Act is administered by within the Division of Water and not the Division of Soil Conservation. In response to questioning by the Respondent Intervenors, Eggen testified that to the best of his knowledge, Diehm never shared with the Division of Water his facsimile mail to the Army Corps nor did Diehm otherwise inform the Division of Water of the complaint.
184. Eggen testified he has learned the DNR’s Division of Water received a July 31, 2006 complaint concerning activities alleged to be taking place at the site in issue, although Eggen was not personally aware of the complaint in 2006. Based on the 2006 complaint, Joe Mapes was assigned to inspect the site. Eggen testified learned after-the-fact that Mapes inspected the site on August 11, 2006 and “could not find any work being done on the inlet. Our inspector went out there, looked at it, couldn’t find anything, [and] closed the file.” DNR’s Violation Information Report PL-4147 indicates a file was opened by the Division of Water on July 31, 2006 and closed on March 7, 2007. Claimants’ Exhibit 2.
[VOLUME 12, PAGE 121]
185. Eggen testified he first learned of the Claimants’ activities based on a third citizen complaint filed in 2007. By this time, the DNR had 2005 aerial photography of the site which was yet unavailable when the July 2006 complaint was received. Eggen testified the DNR “looked on the aerial photography. You could see the violation.” A new inspector was assigned to perform a site inspection. “With it visible on aerial photography, then it’s easier to locate where the report of violation is at, and he actually found the site.”
186. Bouwkamp testified that as a result of her July 2007 viewing, she directed a complaint to Conservation Officer Robert Duff. He responded that he did not have a boat small enough to enter the channel. Bouwkamp said “we asked for a meeting with IDEM and DNR and the Army Corps of Engineers” in August 2007 because “we wanted some explanation of how this violation could be allowed to happen. That’s when Jeremy Price and Jon Eggen became involved.” Bouwkamp participated in a meeting with the agencies, but she did not accompany agency personnel into the channel, and she did not know when they conducted an onsite investigation.
187. Bouwkamp testified she had no communications with the Army Corps until after she filed her 2007 complaint with the DNR. Before 2007, she was unaware of the construction project by the Claimants or the mitigation being required by the Army Corps. After filing her 2007 complaint, the Army Corps began corresponding with her. The Army Corps informed her that its directives to the Claimants were initiated following a 2003 DNR communication.
188. Bouwkamp testified that had the Claimants filed a permit application with the DNR, and if she had been notified of the application, she would have objected to the dredging they performed.
189. Eggen testified that upon receiving the 2007 complaint, he contacted the Army “Corps to coordinate activities on this project. At that point, the [Army] Corps told me that they had been aware of this and started copying us on documentation between the two agencies.” Before this contact, Eggen testified the DNR’s Division of Water was not, to the best of his knowledge, copied on correspondence between the Army Corps and the Claimants.
190. Eggen testified he did not learn of Mark Diehm’s
involvement until receiving the Claimants’ contentions described in Finding 15.
Following receipt of those contentions, he researched DNR records and
determined Diehm was in 2003 an employee of DNR’s Division of Soil Conservation[11]. Diehm was assigned to a regional office in
191. Generally, the preponderance of the evidence does not support a conclusion that the Claimants should be relieved of responsibility based upon laches. At least as to the Flood Control Act and the Lakes Preservation Act, a DNR responsibility is to protect the public welfare. Illustrative regarding the Flood Control Act is IC 14-28-1-1 and regarding the Lakes Preservation Act is IC 14-26-2-5. Where the public welfare is the subject of regulation, laches “should not be permitted to frustrate the enforcement of a valid regulation except in the clearest and most compelling circumstances.” Ind. Real Estate Comm’n v. Ackman at 1273 cited previously.
192. The Claimants have not demonstrated
“the clearest and most compelling circumstances.” To the extent the DNR had knowledge of the
Claimants’ activities in January 2003, the evidence suggests the knowledge was
that of a single DNR employee operating from an office at a location remote to
other DNR employees. Although Diehm may
have had apparent authority to act for DNR, Eggen’s unrefuted testimony is that
he did not have actual authority. More
importantly, the Claimants have not testified Diehm made representations or
claims of authority to them. The record
is not clear that the Claimants ever even spoke to Diehm. Their communications were with the Army
Corps. No representative of the Army
Corps testified, and the Claimants did not testify that any employee of the
Army Corps claimed authority to speak or act for the DNR. As to the citizen complaint received by the
DNR in 2006, the record does not satisfy the first element of laches. There must have been inexcusable delay in
responding, and the record does not support this conclusion. Dredging was outside the vision of the public
waters of
[VOLUME 12, PAGE 122]
was dispatched in August 2006 but could not locate the Claimants’ activities. The elapse of time between receipt of the 2007 citizen complaint, and the DNR response to it, simply does not support a finding of inexcusable delay. Finally, the Claimants have not shown a change in circumstances causing them prejudice as required by the third element for the imposition of laches. To the contrary, if the Claimants were not directed to mitigate damages resulting from unpermitted activities sought to be protected under the Flood Control Act and the Lakes Preservation, where the likelihood of successful permitting in advance of those activities would have been problematic at best, the Claimants would receive an unjust enrichment at the expense generally of the public trust and specifically of landowners adjacent to Hackenburg Lake.
193. The Claimants make no claim
of laches as to the Respondent Intervenors.
Based on IC § 14-26-2-12(a)(2), at least some of the Respondent
Intervenors have an interest apart from the DNR authority to protect public
welfare. Even the evidence most favorable
to the Claimants is neither Kunkle nor Bouwkamp had knowledge before 2006 of
the Claimants’ construction of a new channel.
Bouwkamp acted aggressively and appropriately when she became aware. Unless 51% of the property owners approve,
the DNR cannot lawfully authorize the construction of a channel into a public
freshwater. By failing to obtain this
approval, the Claimants have violated this vested property right of property
owners adjacent to
194. With respect to the Ditches and Lakes Act, the Claimants have a more convincing argument for laches. With the 2007 statutory amendment to establish an exemption from the Ditches and Lakes Act, for which the Claimants would seemingly qualify, the Indiana General Assembly effectively determined the Claimants’ activities would not violate the public welfare. Application of the rule of lenity moots the question. Had the rule of lenity not been applied, and to help support the development a complete agency record, a conclusion is required. Laches would have relieved the Claimants from responsibilities for the Ditches and Lakes Act under these extraordinary circumstances.
I. Civil Penalties
195. “In addition to other penalties prescribed by law, the director [of the DNR] may impose a civil penalty under IC § 14-25.5-4” for a violation of the Flood Control Act. IC § 14-28-1-36.
196. “In addition to other penalties prescribed by [the Lakes Preservation Act], the director [of the DNR] may impose a civil penalty under IC 14-25.5-4.” IC § 14-26-2-22.
197. As stated in the NOV, a person who fails to mitigate a violation within the time set forth is liable for a civil penalty. The DNR may assess a penalty of not more than $10,000 for each violation. Each day during which a violation continues may be considered a separate violation for purposes of assessing a civil penalty. IC § 14-25.5-4-3.
198. Civil penalties should be assessed against the Claimants under IC 14-25.5-4-3.
199. In considering what civil penalties to assess, the Commission must properly consider the totality of the circumstances. The seriousness of the violation should be considered, as well as any aggravating or mitigating factors. DNR and I & M v. Pheasant Ridge Development. Co., Inc., 10 Caddnar 187 (2006).
200. The maximum civil penalty must be reserved for the most serious violations. T. Lusher cited previously at 148.
201. In considering the seriousness of violations, the Commission shall determine whether there is posed an imminent danger to persons, property, or the environment. T. Lusher cited previously at 148.
[VOLUME 12, PAGE 123]
202. The violations by the Claimants have not been shown to
pose a danger to persons, but if unabated, they have a great potential for harm
to the environment and a significant potential for harm to property. The violations would likely reduce water
quality both within the newly constructed channel and within the main body of
203. As aggravating factors, the Commission shall consider whether the violations were deliberate, were continuing in nature, or were of extended duration. DNR and I & M v. Pheasant Ridge Development cited previously at 208.
204. The evidence is entirely convincing that the Claimants’ violations were not deliberate.
205. Some of the violations are continuing in nature and they have existed for seven years.
206. On the other hand, the Claimants have corrected significant aspects of the DNR violations through their cooperation in remediation efforts required by the U.S. Army Corps. Their remediation efforts are most notable for restoration of natural resources (particularly wetlands within Clean Water Act jurisdiction) which are coincidentally in the floodway and also subject to DNR jurisdiction. Yoder testified he removed the spoil “so it’s no longer on the property” except for two loads near his farm buildings. The Army Corps instructed him to remove the spoil from the wetlands, and the Claimants complied with those instructions.
207. Although no employee of the Army Corps testified, the evidence support a conclusion the Claimants made every reasonable effort to comply with Army Corps directives. The letter from the Army Corps referenced in Finding 182 is an illustration of the Claimants’ diligence in satisfying the Federal enforcement action. Yoder’s testimony is also convincing that he acted in the truthful (but mistaken) belief that cooperation with the Army Corps would also constituted cooperation with the DNR. The good faith and effect efforts by the Claimants with remediation sought by the Army Corps are mitigating factors.
208. Considering the duration and seriousness of the Claimants violations, IC 14-25.5-4-3 would support major civil penalties against them. The Claimants committed multiple violations of the Flood Control Act and multiple violations of the Lakes Preservation Act.
209. With respect to the Flood Control Act, the Claimants have caused significant harm to the natural resources within the aquatic habitat of the floodway. The level of harm is somewhat mitigated by efforts already undertaken by the Claimants in response to directives from the Army Corps. A civil penalty of $10,000 should be assessed for this violation.
210. With respect to the Lakes Preservation Act, the harm is
more serious. A fundamental modification
of the drainage system, from the J. J. Charles Drain directly into
211. Even so, the purposes to be served by the Flood Control Act and by the Lakes Preservation Act are more effectively met by mitigation than by the assessment and collection of major civil penalties. If the mitigation described for the Flood Control Act is timely satisfied, the civil penalty should be expunged for the violations of the Flood Control Act. If the mitigation described for the Lakes Preservation is timely satisfied, the civil penalty should be reduced to $1,000 for the violations of the Lakes Preservation Act.
[1] 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. The
Commission has adopted Caddnar as its index of agency decisions. Caddnar may be researched on the Commission’s
website at www.ai.org/nrc/2369.htm.
[2] In the “Respondent DNR’s Post-Hearing Brief”, the timeliness of the Claimants’ assertion of laches is questioned. The issues were not clearly articulated at the early stages of the proceeding, although almost from the beginning the Claimants spoke of Army Corps participation regarding remediation efforts in a way that could reasonably lead to a consideration of laches. To shine a brighter light on the positions of the Parties, the Administrative Law Judge directed the submission of contentions. The contentions served the intended purpose. In the spirit of Huffman v. Office of Environmental Adjudication and Indiana Office of Environmental Adjudication v. Kunz discussed later, the Parties were accorded a full and complete opportunity to offer their own positions, to understand opposing positions, and to knowingly participate. 312 IAC § 3-1-4(b) gives discretion to an administrative law judge to allow a party to raise an affirmative defense later than the initial prehearing conference. An unfair surprise was not visited upon the DNR by the Claimants’ assertion of laches in their contentions. Indeed, the DNR did not object to the assertion until after hearing. The development of contentions and the inclusion of an affirmative defense in them is not an abuse of discretion. In addition, the DNR has waived any error by not complaining until its post-hearing brief.
[3] The court reporter has not been requested to prepare a transcript of testimony at hearing. If a witness is shown as being quoted in these findings, the statement is as nearly verbatim as could be determined by the Administrative Law Judge. In some instances a stutter or verbal misdirection corrected immediately by a witness may be omitted. If a transcript is subsequently prepared that indicates different wording, the transcript shall be considered the official record and a quotation as paraphrasing of witness testimony.
[4] This proceeding offers an exercise in semantic
gymnastics. Witnesses, exhibits, and the
laws use a variety of terms to describe bodies of water. Use of particular terms may correctly apply
to the same body of water but taken individually suggest different inferences. By example, and consciously referencing a
body of water not at issue, the
[5] In his capacity as LaGrange County Surveyor, Pranger has considerable experience with the implementation of IC 36-9-27 (sometimes referred to as the “Drainage Law”). For purposes of the Drainage Law, a “regulated drain” means “an open drain, a tiled drain, or a combination of the two.” IC § 36-7-27-2. “The county surveyor is the technical authority on the construction, reconstruction, and maintenance of all regulated drains or proposed regulated drains in the county….” IC § 36-27-9-29. The Commission is not responsible for implementing the Drainage Law.
[6] This remediation requirement anticipates, as a minimum, restoration of the J. J. Charles Drain to the conditions existing when the Claimants began construction in 2002. The LaGrange County Surveyor also has jurisdiction over regulated drains, however, and may seek design requirements which are more extensive than return to 2002 conditions. Eggen testified he believed the J. J. Charles Drain had largely reverted to a natural condition, probably due to lack of maintenance. If the LaGrange County Surveyor determines a project for reconstruction or maintenance of the J. J. Charles Drain is required, the Flood Control Act should be applied in the context of IC § 36-9-27-53.5.
[7] Effective July 1, 2003, IC § 14-26-2-9 was amended to increase the permit fee from $25 to $100. P.L. 186-203, SEC 88. For purposes of these Findings, the applicable fee is the amount of $25 which applied when the Claimants began construction in 2002.
[8] As applied to statutes, “pari materia” means the statutes must be construed with reference to each other. Black’s Law Dictionary, 6th Ed., (West Publishing Co., 1990), p. 1115.
[9] The
Indiana General Assembly did not in 2006 elect to incorporate three other
licensure requirements. These have
narrower and more specialized applications.
IC § 14-26-2-7 applies to the construction of ditches or dams “likely to
affect a lowering of the water level of a lake” containing at least ten acres,
and this section appears to have a broader geographic scope than the “shoreline
or water line”. IC § 14-26-2-11 applies
to “sand mining” in
[10] Kinkle
and others testified using the term “Jet Ski”.
“Jet Ski” is a trademark registered to
[11] The Respondent DNR’s Post-Hearing Brief reports: “The various divisions of DNR are set forth in IC 14-9-4-1 and once included a division of soil conservation. However, in statutory amendments effective March 24, 2006 (P.L. 1-2006, § 593), the Indiana General Assembly removed soil conservation as a division of DNR (P.L. 1-2006, § 209). The department of agriculture was established as an agency by P.L. 83-2005, § 209 11 and included a division of soil conservation. Sections 15-9-1-1—15-9-5-13 concerning the department of agriculture were repealed by P.L. 2-2008, § 83, effective July 1, 2008.”