[CITE: Gaerte v. DNR, 12 CADDNAR 271 (2010)]
[VOLUME 12, PAGE 271]
Cause #: 10-091W
Caption: Gaerte v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Gaerte); Wyndham (DNR)
Date: October 25, 2010
NOTICE OF FINAL ORDER OF DISMISSAL
FINAL ORDER
Based on the foregoing Findings, a final order of dismissal is entered. A person who wishes to seek judicial review of this final disposition must file a petition in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.
FINDINGS
On June 23, 2010, an “Order for Continuance of Prehearing Conference and Order for Stay” was issued. The administrative law judge for the Natural Resources Commission (the “Commission”) ordered:
(1) The prehearing conference scheduled for July 2, 2010 in Columbia City is continued indefinitely.
(2) The Department of Natural Resources is stayed from regulating or administering Marl Lake in Noble County under IC 14-26-2, 312 IAC 11-1 through 312 IAC 11-5, or otherwise as a “public freshwater lake”.
A prehearing conference would be rescheduled by the administrative law judge on the motion of either party. If the Natural Resources Commission does not delete Marl Lake from its listing of public freshwater lakes by December 1, 2010, the administrative law judge may reschedule the prehearing conference on his own motion.
In an “Informational Entry
Concerning Amendment Request by DNR to the Natural Resources Commission (Not a
Notice Requiring Attendance)”, the parties were informed the DNR had advised
the Commission of its intention to seek an amendment to the “Listing of Public
Freshwater Lakes” published in the Indiana Register as Information
Bulletin #61. The DNR stated it would request the Commission to seek amendments
to the “Listing of Public Freshwater Lakes” published in the Indiana Register
as Information Bulletin #61. As applicable to this proceeding, the DNR stated
it would request the Commission to remove, by striking, the following listing
of a “public freshwater lake” for Noble County: Marl Lake, located in
township 33 N, 1 mi. E of Wolf Lake. The administrative law judge observed
if the Commission approved the DNR request, incorporated the amendment, and
caused publication in the Indiana Register, the proceeding appeared to
be resolved.
On September 21, the Commission approved the DNR request and incorporated the amendment. Information Bulletin #61 (First Amendment) was published in the Indiana Register on October 6, 2010 at 20101006-IR-312100620NRA to replace previous Information Bulletin #61. Marl Lake in Noble County was removed from listing as a “public freshwater lake”.
On October 8, 2010, the administrative law judge entered a notice of proposed dismissal because the relief sought by David K. Gaerte had seemingly been granted. Marl Lake in Noble County was effectively removed from the status of a “public freshwater lake” under IC 14-26-2 and 312 IAC 11-2-17. The parties were provided until October 19, 2010 to file a motion requesting a final order of dismissal not be entered and stating grounds relied upon for the request. If an appropriate motion was not filed, the administrative law judge stated he would enter a final order of dismissal pursuant to 312 IAC 3-1-9(d). Neither party has since filed a motion.
With the Commission’s approval for removing Marl Lake from the listing of public freshwater lakes, and with the subsequent publication of Information Bulletin #61 (First Amendment) in the Indiana Register, Marl Lake is effectively removed from the status of a public freshwater lake under IC 14-26-2 and 312 IAC 11-2-17. The administrative law judge finds the relief sought by David K. Gaerte has been granted, and this proceeding should be dismissed.