[CITE: Colton Lambermont v. DNR, 12 CADDNAR 215 (2010)]

 

[VOLUME 12, PAGE 215]

 

Cause #: 09-158P

Caption: Colton Lambermont v. DNR

Administrative Law Judge: Jensen

Attorneys: Pierce (Lambermont); Boyko (DNR)

Date: April 8, 2010

 

 

FINAL ORDER OF THE NATURAL RESOURCES COMMISSION

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

41. The Ejection Notice issued to C. Lambermont on August 26, 2009 is affirmed except that the ending date of the property ejection is modified to February 26, 2010 at 1:00 p.m.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

  

Procedural Background

 

1.      On September 3, 2009, the Claimant, Colton L. Lambermont, (“C. 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 26, 2009.

 

2.      A prehearing conference was held as scheduled on September 28, 2009 with C. 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 Ronald W. Lambermont v. DNR, Administrative Cause 09-151P.

 

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 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, who is now a college student, has worked for Sugar Valley Canoes since he was old enough to work.  One of his present 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 Cox Ford Bridge, which gives him a clear view.  After pulling up to the bridge entrance he backs into the entrance to the Cox Ford Access Site to turn around.  This is the routine he was following on Saturday, August 22, 2009, when he pulled forward to leave the access site and hit the fence post.  Testimony of C. Lambermont.

 

[VOLUME 12, PAGE 216]

 

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.  C. Lambermont testified that he could see that none of the fence posts or rails was split and 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.  While there is a dispute about whether C. Lambermont even stopped to check for damage to the fence from inside his truck, a damage assessment conducted without exiting the vehicle would be cursory at best.  With the knowledge that the laborers constructing the fence were present the more reasoned approach would have been for C. Lambermont to notify them and seek their assistance in making an appropriate evaluation of the situation.

 

17.  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.

  

18.  The fence repair required the corner post to be set straight and the earth around it and the other two posts to be tamped down.  Testimony of Smith.

 

19.  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.

 

20.  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.

 

21.  According to Smith, the fence construction at the Cox Ford Access Site has been the cause of some controversy.  People, including R. Lambermont, believe that the fence 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.

 

22.  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”) his opinion that C. Lambermont had hit the fence intentionally.  Testimony of Smith, Testimony of C.O. Cruser.

 

23.  In support of his opinion that the fence was struck intentionally, 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.   However, it is equally possible to infer that C. Lambermont, who through years of  routinely backing into and pulling out of the Cox Ford Access Site unimpeded by any barriers, acted out of habit resulting in the careless collision with the fence that had been constructed only approximately two weeks before.

    

24.  There was no evidence that C. Lambermont had ever spoken out or protested the construction of the fence.

 

25.  After hitting the fence post, C. Lambermont left for a previously planned vacation.  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 but 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.  Testimony of C. Lambermont.  C. Lambermont stated that C.O. Cruser appeared unwilling to listen to C. Lambermont’s account of what had occurred.    Furthermore, C. Lambermont testified that C.O. Cruser advised him that “significant damage” had been done to the fence.  Because of C. Lambermont’s 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.

 

[VOLUME 12, PAGE 217]

 

27.  On August 26, 2009 C.O. Cruser issued a “Notification of Ejection from DNR Property” (“Ejection Notice”) 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.  The Ejection Notice specifically sites Indiana Code § 35-43-1-2 as the reason for C. Lambermont’s ejection from the Department’s property. 

 

Conclusions of Law

 

29.  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)                An ejection or restriction imposed under subsection (a) is effective immediately and applies for twenty-four (24) hours unless the property manager or other authorized representative specifies a shorter duration.

(c)                Notwithstanding subsection (b), 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. 

 

30.  As applicable to the instant proceeding, Indiana Code § 35-43-1-2 states:

(a) A person who:
        (1) recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent; or
        (2) knowingly or intentionally causes another to suffer pecuniary loss by deception or by an expression of intention to injure another person or to damage the property or to impair the rights of another person;
commits criminal mischief

 

31.  An intentional act of criminal mischief would have occurred if it were C. Lambermont’s “conscious objective” to hit the post or damage the fence.  Indiana Code § 35-41-2-2(a).

 

32.  The evidence does not support the conclusion that C. Lambermont’s act of hitting and damaging the Department’s recently constructed fence was intentional.

  

33.  However, C. Lambermont complicated the situation by leaving the scene without conducting an appropriate damage assessment or reporting the incident to the Department.  Thereafter, C. Lambermont further compounded his dilemma by lying to C.O. Cruser and C.O. Slaven.

 

34.  A Department’s authorized representative has wide discretion to issue a property ejection for nearly any duration of time up to one year and for either a small portion of one property or for the entirety of all the Department’s properties throughout the State. 312 IAC 8-5-3.

 

35.  There is no evidence that the Department has established any type of guidelines to aid its authorized representatives in exercising the discretion associated with the issuance of notices of ejection.

 

36.  The administrative law judge is required to conduct de novo review of evidence presented at an administrative hearing.  Putnam v. Hootman v. DNR, 8 CADDNAR 104 (1998).  In doing so the administrative law judge shall weigh the evidence and base findings upon substantial and reliable evidence on the record rather than deferring to initial determination of the Department.  Id.

 

37.  The difficulty in this instance is determining not whether some form of property ejection is appropriate but whether the terms of the property ejection issued in this instance were appropriate.

 

38.  It stands to reason that the breadth and duration of a property ejection would be proportioned to the severity of the incident giving rise to the ejection.

 

[VOLUME 12, PAGE 218]

 

39.  The damage to the fence was not substantial and the evidence does not support the conclusion that C. Lambermont damaged the fence intentionally.  Despite the number of years C. Lambermont has been associated with Turkey Run State Park by virtue of his long-term employment at Sugar Valley Canoes, there is also no evidence that C. Lambermont has ever before committed a violation at the property or been the subject of any past Departmental enforcement actions.  For these reasons alone the Department’s imposition of the maximum allowable ejection period is unreasonable.

 

40.  However, C. Lambermont’s actions after colliding with the fence were irresponsible at best and at worst were designed to conceal his responsibility for the damage.  For these reasons some form of property ejectment is appropriate.

 

[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 41 has been relocated to the “Final Order” section at the beginning of this document.]