[CITE: Ronald Lambermont
v. DNR, 12 CADDNAR 219 (2010)]
[VOLUME 12, PAGE 219]
Cause #: 09-151P
Caption: Ronald Lambermont v. DNR
Administrative Law
Judge: Jensen
Attorneys: Pierce (Lambermont); Boyko (DNR)
Date: April 8, 2010
FINAL ORDER
[See Editor’s note at end of this document regarding change in the decision’s original format.]
54. The Department’s Ejection Notice issued to R. Lambermont on August 27, 2009 is hereby revoked.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Procedural Background
1. On September 3, 2009, the Claimant, Ronald W. Lambermont, (“R. Lambermont”), by counsel, John D. Pierce, filed with the Natural Resources Commission (“Commission”), his request for administrative review of the Department of Natural Resources’ (“Department”) issuance of a Notification of Ejection from DNR Property on August 27, 2009.
2. A prehearing conference was held as scheduled on September 28, 2009 with R. Lambermont appearing in person and by counsel and the Department appearing by attorneys Ihor Boyko and Eric Wyndham.
3. An administrative hearing was conducted on November 19, 2009.
4. With the agreement of the parties, the administrative hearing in the instant proceeding was conducted concurrently with a related, although unconsolidated, cause of action captioned Colton L. Lambermont v. DNR, Administrative Cause 09-158P.
5. Procedurally, the Administrative Orders and Procedures Act, or AOPA, and administrative rules adopted by the Commission for the purpose of implementing AOPA in proceedings under its subject matter jurisdiction control this action. Indiana Code § 4-21.5-3 et seq., 312 IAC 3 et seq.
6. Substantively, the proceeding at hand is governed by 312 IAC 8-5-3.
7. The Commission is the ultimate authority over the subject matter of this proceeding. 312 IAC 3-1-2.
8. The Commission is possessed of jurisdiction of the subject matter and the persons of the parties to this proceeding.
Findings of Fact
9. On or near Saturday, August 22, 2009 Herman A. Smith (“Smith”) a Department Laborer at Turkey Run State Park, was constructing a wood fence at the Cox Ford Access Site when Colton L. Lambermont (“C. Lambermont”) backed up into the entrance of the access area and pulled forward hitting a corner post of the newly constructed fence. Testimony of Smith, Testimony of C. Lambermont.
10. The Cox Ford Access Site is a part of the Turkey Run State Park system and is owned and controlled by the Department.
11. C. Lambermont is the son of R. Lambermont, who owns and operates Sugar Valley Canoes. Sugar Valley Canoes rents canoes, kayaks and tubes to the public for recreational opportunities on Sugar Creek. Testimony of R. Lambermont. C. Lambermont works for Sugar Valley Canoes and one of his work responsibilities is to occasionally check the creek’s water level. Testimony of C. Lambermont.
12. C.
Lambermont explained that to check the water level he routinely pulls up to the
entrance of the
13. C. Lambermont testified that after hitting the post he backed up again and pulled up along side the post and looked at it from inside his vehicle. Failing to see any damage to the post or fence he left the scene without further thought. Testimony of C. Lambermont.
14. Contrary to C. Lambermont’s testimony, Smith testified that after the collision the post was loose in the ground and was leaned over approximately 35o. Smith further stated that two additional posts, which were connected to the corner post by wood fence rails, were also loosened in the ground as a result of the impact.
15. Smith also testified that after hitting the fence, C. Lambermont backed up and left the scene “very fast.” Respondent’s Exhibit A.
16. With the exception of the fence post being leaned over, the damage to the fence would not have been visible from inside C. Lambermont’s vehicle.
[VOLUME 12, PAGE 220]
17. The fence repair required the posts to be set straight and the earth around them to be tamped down. Testimony of Smith.
18. The truck C. Lambermont was driving when he hit the fence post was located and determined to have a crease in the passenger’s side front bumper that was consistent in height with a black mark that was left on the fence post. Respondent’s Exhibits F, G, H & K; Claimant’s Exhibit 4, Testimony of Conservation Officer Pete Slaven.
19. The crease in the bumper of the truck C. Lambermont was driving is sufficiently significant to support Smith’s testimony that the fence post was leaned over as a result of the collision.
20. According to Smith, the fence construction at the Cox Ford Access Site has been the cause of some controversy. Smith testified that people feel that it isn’t necessary and that other projects at Cox Ford or at Deers Mill or Brush Creek should have received priority. Testimony of Smith & Testimony of R. Lambermont.
21. Because of hard feelings associated with the Department’s decision to construct the fence at the Cox Ford Access Site and his observation of C. Lambermont’s action in hitting the fence and after hitting the fence, Smith concluded and reported to Conservation Officer David Cruser (“C.O. Cruser”) that C. Lambermont had hit the fence intentionally. Testimony of Smith, Testimony of C.O. Cruser.
22. Smith testified to his belief that anyone who can back into the entrance to the access site should be able to pull forward out of the same entrance without colliding with a fence post but it can just as easily be inferred from the facts that C. Lambermont, who is accustomed through many years of routinely backing into and pulling out of the Cox Ford Access Site without concern for a defined entrance, would through a lapse of thought or simple carelessness strike a fence post that had been put in place only within the past two weeks.
23. There was no evidence that C. Lambermont had ever spoken out or protested the construction of the fence.
24. R. Lambermont acknowledged that he was one of the people who believed that the fence construction at Cox Ford Access Site was not a priority and further believed that a different fence design should have been considered. Testimony of R. Lambermont. However, at the time R. Lambermont became aware of the fence post locations for the entrance to the access site but before the posts were set or the fence constructed he obligated Sugar Valley Canoe drivers, who frequently drive 12 – 15 passenger vans with tandem canoe trailers, to practice entering and exiting the site with cones in place to represent the posts. Testimony of R. Lambermont & Testimony of Joel Scott.
25. After hitting the fence post, C. Lambermont left for a previously planned vacation on the afternoon of Saturday, August 22, 2009 and returned on Monday, August 24, 2009. Testimony of C. Lambermont. Conservation Officer David Cruser (“C.O. Cruser”) and assisting officer, Conservation Officer Pete Slaven (“C.O. Slaven”) were called to investigate the incident involving C. Lambermont. While C. Lambermont was on vacation, C.O. Cruser and C.O. Slaven identified and photographed the fence and the truck C. Lambermont had been driving and interviewed Smith. Testimony of C.O. Slaven. The fence was repaired before photos were taken. Testimony of C.O. Cruser.
26. On August 26, 2009 C.O. Cruser and C.O. Slaven spoke to C. Lambermont about the fence. During their conversation, C.O. Cruser explained the facts to C. Lambermont as he understood and inferred them from his interview with Smith and his observation of the fence and the truck. Testimony of C.O. Cruser. C. Lambermont concurred with C.O. Cruser having laid out the facts and testified that in doing so it appeared as though C.O. Cruser had already made up his mind that C. Lambermont had hit the fence intentionally and appeared unwilling to listen to C. Lambermont’s account of what had occurred. Testimony of C. Lambermont. Furthermore, C. Lambermont testified that C.O. Cruser advised him that “significant damage” had been done to the fence. C. Lambermont explained that because of his belief that C.O. Cruser had already made up his mind, the fact that he was certain he had not done any “significant damage” to the fence and the situation that he did not know if something else had happened to the fence while he was on vacation he simply denied hitting the fence at all. Testimony of C. Lambermont.
27. On August 26, 2009 C.O. Cruser issued a Notification of Ejection from DNR Property to C. Lambermont for “a criminal mischief instance at Cox Ford Public Access. Colton Lambermont failed to assume responsibility for this incident.” Exhibit A to C. Lambermont’s Request for Administrative Review.
28. Steve Anders (“Anders”) was a customer of Sugar Valley Canoe on August 26, 2009 and at 1:00 p.m. was being driven by R. Lambermont to the Cox Ford Access Site to embark on his eight-mile canoe trip when R. Lambermont encountered C. Lambermont along the roadside. Testimony of Anders. R. Lambermont stopped and spoke to C. Lambermont at which time C. Lambermont advised R. Lambermont for the first time of his ejection from the Turkey Run State Park property. Testimony of Anders.
29. Anders was the only customer putting in at that time on August 26, 2009 and was therefore the only customer with R. Lambermont. Testimony of Anders.
30. Anders has been a long-time customer of Sugar Valley Canoes but only met R. Lambermont and C. Lambermont on his last trip so he has no relationship with any of the parties to this proceeding. His testimony was particularly convincing.
[VOLUME 12, PAGE 221]
31. On August 26, 2009 after speaking to C. Lambermont, R. Lambermont and Anders arrived at the Cox Ford Access Site where there were two or three Department employees at the site. Testimony of Anders, Testimony of Lambermont, Testimony of Smith. Anders testified that he recognized one of the employees at the site on August 26, 2009 as Smith who was present for the administrative hearing.
32. After C. Lambermont was ejected from the Department property, R. Lambermont had a total of three occasions on August 26, 2009 to visit the Cox Ford Access Site to pick up and drop off canoers. The first of these occasions occurred at or near 1:00 p.m. when he dropped Anders off and picked up another woman and her son who were waiting. At 1:30 p.m. R. Lambermont visited the site to pick up returning canoers. The final visit to the Cox Ford Access Site was at 2:00 p.m. when he picked up returning canoers. Testimony of R. Lambermont.
33. At 1:00 p.m. R. Lambermont engaged Smith in a conversation, which Anders was witness to but not a participant in. Testimony of Anders, Testimony of R. Lambermont and Testimony of Smith. Anders characterized R. Lambermont as “very appropriate in manner” in asking Smith “for his version of the events” relating to C. Lambermont and the fence damage. Testimony of Anders. Anders testified that Smith appeared somewhat defensive in responding to R. Lambermont’s “matter of fact” questions. There was nothing threatening or intimidating about R. Lambermont’s demeanor or behavior towards Smith. Testimony of Anders.
34. It is acknowledged that Anders did not witness any conversation between R. Lambermont and Smith after he had put in for his canoe trip.
35. According to Smith’s testimony, during the first conversation R. Lambermont implied that the action taken against C. Lambermont was Smith’s fault because of Smith stating his opinion that C. Lambermont hit the fence intentionally. R. Lambermont told Smith he was going to appeal the ejection. Smith believed that R. Lambermont was trying to persuade him to change his statement or opinion. This conversation took place over the course of 35 – 45 minutes with the two talking and then Smith going back to work and then stopping to talk again. Testimony of Smith.
36. On the
second occasion, Smith testified that R. Lambermont criticized the State of
37. All of R. Lambermont’s statements on the second occasion were made while R. Lambermont, who is 60 years of age, was carrying canoes up a hill from the creek to the Cox Ford Access Site parking lot. One of the comments R. Lambermont made while carrying a canoe over his head was “don’t take this personally if I hit you in the head with this canoe.” Testimony of Smith. Smith testified that he did not know if that statement by R. Lambermont was directed at him, another Department laborer or the canoers. Testimony of Smith. R. Lambermont testified that when he made that statement he had tripped over a broken step at the Cox Ford Access Site and was not really directing the statement at anyone in particular. Testimony of R. Lambermont.
38. On the third occasion Smith stated that R. Lambermont was pacing back and forth and Smith did not stop work. Smith stated that he was “tired of it” by this time and told R. Lambermont “let’s just drop it now, forget about it and go on.”
39. After Smith told R. Lambermont to “go on”, R. Lambermont said a few other things but complied with Smith’s direction by leaving the area and not returning. Testimony of Smith.
40. Smith testified that he did not feel threatened by R. Lambermont’s statements, actions or demeanor during any of their interactions. Testimony of Smith.
41. The interactions between R. Lambermont and Smith were also reported to C.O. Cruser and C.O. Slaven. R. Lambermont was served with a “Notification of Ejection from DNR Property” (“Ejection Notice”) on August 27, 2009, which cited that R. Lambermont had violated Indiana Code § 35-43-2-2(a)[1]. Specifically, R. Lambermont was ejected because he “went to Cox Ford Public Access on several occasions and confronted DNR employees while they were performing their duties for TRSP. During this time, the employees were harassed by Ron Lambermont.” Exhibit A to R. Lambermont’s Request for Administrative Review.
42. There is no evidence existing in the record that R. Lambermont was asked to leave the DNR property before being served the Ejection Notice on August 27, 2009.
43. There is no evidence to suggest that after being served with the Ejection Notice on August 27, 2009, R. Lambermont returned to the DNR property.
[VOLUME 12, PAGE 222]
Conclusions of Law
44. As applicable to this proceeding 312 IAC 8-5-3 states that,
(a) A property manager or another authorized representative may require a person to leave a DNR property or may otherwise restrict a person’s use of a DNR property.
(b) …
(c) …a property manager or another authorized representative may designate in writing that the ejection or restriction shall remain in effect for not more than one (1) year. An ejection or restriction under this subsection is subject to administrative review to the commission under IC 4-21.5.
(d) An ejection or restriction imposed under this section may be made applicable to all or a portion of a particular DNR property to multiple DNR properties, or to all DNR properties.
45. Indiana Code § 35-43-2-2(a) states:
(a) A person who:
(1) not having a contractual
interest in the property, knowingly or intentionally enters the real property
of another person after having been denied entry by the other person or that
person's agent;
(2) not having a contractual
interest in the property, knowingly or intentionally refuses to leave the real
property of another person after having been asked to leave by the other person
or that person's agent;
(3) accompanies another person
in a vehicle, with knowledge that the other person knowingly or intentionally
is exerting unauthorized control over the vehicle;
(4) knowingly or intentionally
interferes with the possession or use of the property of another person without
the person's consent;
(5) not having a contractual
interest in the property, knowingly or intentionally enters the dwelling of
another person without the person's consent;
(6) knowingly or intentionally:
(A)
travels by train without lawful authority or the railroad carrier's consent;
and
(B) rides on the outside of a
train or inside a passenger car, locomotive, or freight car, including a
boxcar, flatbed, or container without lawful authority or the railroad
carrier's consent;
(7) not having a contractual interest
in the property, knowingly or intentionally enters or refuses to leave the
property of another person after having been prohibited from entering or asked
to leave the property by a law enforcement officer when the property is:
(A)
vacant or designated by a municipality or county enforcement authority to be
abandoned property; and
(B)
subject to abatement under IC 32-30-6, IC 32-30-7, IC 32-30-8,
IC 36-7-9, or IC 36-7-36; or
(8) knowingly or intentionally
enters the property of another person after being denied entry by a court order
that has been issued to the person or issued to the general public by
conspicuous posting on or around the premises in areas where a person can
observe the order when the property:
(A) has
been designated by a municipality or county enforcement authority to be a
vacant property or an abandoned property; and
(B) is
subject to an abatement order under IC 32-30-6, IC 32-30-7,
IC 32-30-8, IC 36-7-9, or IC 36-7-36; commits criminal trespass,
a Class A misdemeanor. However, the offense is a Class D felony if it is
committed on a scientific research facility, on a key facility, on a facility
belonging to a public utility (as defined in IC 32-24-1-5.9(a)), on school
property, or on a school bus or the person has a prior unrelated conviction for
an offense under this section concerning the same property.
46. The only portions of Indiana Code § 35-43-2-2(a) that could reasonably apply to the matter at hand are subsections (a)(1) and (a)(2).
[VOLUME 12, PAGE 223]
47. In order for R. Lambermont to have violated Indiana Code § 35-43-2-2(a)(1) it is necessary that he enter the property after having first been denied entry. R. Lambermont had not been denied entry until he received the Ejection Notice on August 27, 2009 and there is no evidence that R. Lambermont entered the Department’s property at any time after being served with that Ejection Notice.
48. In order for R. Lambermont to have violated Indiana Code § 35-43-2-2(a)(2) it would have been necessary for R. Lambermont to refuse to leave the Department’s property after having been ordered to do so.
49. R. Lambermont was served with the Ejection Notice on August 27, 2009 and there is no evidence in the record that R. Lambermont refused to leave the Department’s property after receiving that Ejection Notice.
50. In fact, the evidence is clear that even before the Ejection Notice was issued, R. Lambermont had complied with Smith’s August 26, 2009 directive to “drop it now, forget about it and go on.”
51. Additionally, the Ejection Notice alleges that R. Lambermont was harassing employees and interfering with employees’ performance of their duties. The Ejection Notice does not identify a statute or administrative rule that was violated by this activity on the part of R. Lambermont but such activity, whether expressly prohibited by statute or rule, could arguably give rise to an order to leave a Department property.
52. Without a doubt R. Lambermont’s emotions may have been running high at the time of his interactions with Department employees on August 26, 2009. However, by Smith’s own testimony he was never intimidated by nor did he feel threatened by R. Lambermont. Furthermore, Smith believed that belligerent would be too strong a word to described R. Lambermont’s tone and demeanor during the encounters. On the second occasion, while R. Lambermont’s statements to his customers may have been somewhat provoking to the Department employees, there is no evidence that R. Lambermont even spoke to the Department’s employees. And finally, on the third occasion, R. Lambermont complied with Smith’s ultimate directive to “drop it now, forget about it and go on”.
53. Even if some form of ejection were appropriate, an ejection from a property for the period of one year for the activity undertaken by R. Lambermont would be excessive.
[EDITOR’S NOTE:
The original format of the Administrative
Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been
modified to correspond with CADDNAR format.
Finding 54 has been relocated to the “Final Order” section at the
beginning of this document.]
[1] The citation appearing on the “Notification of Ejection from DNR Property” is Indiana Code § 35-42-2-2(a), but this citation was amended by leave of the administrative law judge in an order issued on October 16, 2009, which denied other Department motions to amend.