CADDNAR


[CITE: Waikel v. DNR, 12 CADDNAR 270 (2010)]

 

[VOLUME 12, PAGE 270]

 

Cause #: 10-101W

Caption: Waikel v. DNR

Administrative Law Judge: Lucas

Attorneys: pro se (Waikel); Wyndham (DNR)

Date: October 21, 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 [the “DNR”] is stayed from regulating or administering Millers Lake, which is located west of State Road 9 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 by December 1, 2010 correct the referenced location for Miller Lake in Noble County, the administrative law judge may reschedule the prehearing conference on his own motion or may set a schedule for considering the DNR’s motion under Trial Rule 12(B)(6).

 

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.  As applicable to this proceeding, the DNR indicated it would request the Commission to correct the referenced location of “Miller Lake” in Noble County by indicating a position that was East rather than West of State Road 9.  This correction would be accomplished by striking a “W” and substituting an “E” in the published listing.  The DNR previously stated the lake which is the subject of Terry E. Waikel’s claim was identified by the agency as “Miller’s Lake” or “Millers Lake”, as contrasted with “Miller Lake”.  The administrative law judge observed that if the Commission approved the DNR request, incorporated the amendment, and caused publication in the Indiana Register, the proceeding would appear 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.  The reference on Page 6 of Information Bulletin #61 (First Amendment) identifies as a public freshwater lake: “Miller Lake, located in township 33 N, E side of SR 9.”  “Miller’s Lake” (also known as “Millers Lake”) west of State Road 9 is not referenced.

 

On October 7, 2010, the administrative law judge entered a notice of proposed dismissal because the relief sought by Terry Waikel had seemingly been granted.  “Miller’s Lake” (also known as “Millers Lake”), west of State Road 9 in Noble County, would not have the status of a “public freshwater lake” under IC 14-26-2 and 312 IAC 11-2-17.  The parties were provided until October 18, 2010 to file a motion requesting a final order of dismissal not be entered and stating the grounds relied upon for the request.  If no appropriate motion was 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 and the subsequent publication of Information Bulletin #61 (First Amendment) in the Indiana Register, the record is clarified that “Miller’s Lake” (also known as “Millers Lake”), located west of State Road 9 in Noble County, does not have 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 Terry Waikel has been granted, and this proceeding should be dismissed.