CADDNAR

[CITE: Taylor v. DNR, 12 CADDNAR 328 (2011)]

 

 

[VOLUME 12, PAGE 328]

 

 

Cause #: 11-122L

Caption: Taylor v. DNR

Administrative Law Judge: Lucas

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

Date: September 13, 2011

 

 

FINAL ORDER OF THE NATURAL RESOURCES COMMISSION

 

The following status determination is made under IC 4-21.5-3-4(a)(5) as a condition precedent to consideration of whether a rule should be adopted to exempt Shipshewana Lake in LaGrange County from the prohibition on high-speed boating otherwise applicable to a “small lake” as defined in IC 14-15-3-1:

 

(1) Shipshewana Lake is a “small lake” that contains approximately 200 acres and is eligible for consideration, by rule, for an exemption under IC 14-15-3-11.

 

(2) A majority of the abutting property owners of Shipshewana Lake petitioned the Natural Resources Commission to establish an exemption under IC 14-15-3-11.

 

(3) The petition shall proceed to consideration by the Commission as to whether a rule should be adopted, under IC 4-22, to exempt Shipshewana Lake from the prohibition on high-speed boating.  Other determinations by the Department of Natural Resources, as described in Finding 4, are stricken because they were premature and beyond the scope of a status determination.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

1. On July 18, 2011, Fred L. Taylor (“Taylor”) filed with the Natural Resources Commission (the “Commission”) a request for administrative review of a determination by the Department of Natural Resources (the “DNR”).  The request stated in substantive parts:

 

I am writing to you to appeal the decision that was made by Fish & Wildlife.  One the petition about raising the speed limit on Shipshewana Lake, in LaGrange, County, Indiana.  In the petition we have well over fifty percent of required signatures of property owners that abut the lake in favor of raising the speed limit.

 

We the signed petitioners request that our petition go to the next level of the process.  The last time I check this country was founded on a democracy.  With well over fifty one percent of the property owners wanting it, then it should be approved.  Just like going to the election polls and casing a vote, the majority prevails.

 

Taylor’s July 18, 2011 letter is referenced as “Taylor’s complaint”.  Taylor and the DNR are collectively the “parties”.

 

2. Taylor’s complaint would initiate a proceeding under 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.  As anticipated by 312 IAC 3-1-3(b), an administrative law judge was appointed on July 21, 2011.

 

3. The administrative law judge issued a “Notice of Prehearing Conference” advising the parties a prehearing conference was scheduled for August 16, 2011.  The conference was conducted as scheduled, and both parties attended.

 

4. The parties entered “Stipulated Prehearing Exhibit 1” during the prehearing conference.  Page 1 of the exhibit is a letter issued by DNR’s Division of Fish and Wildlife which states in substantive parts:

 

Dear Mr. Taylor:

 

The [Commission] received your petition requesting that an exemption to the speed limit of ten (10) miles per hour be granted every day of the week from 1 to 4 pm on Shipshewana Lake in LaGrange County.

 

The [DNR] has reviewed the petition and determined the following:

 

(1)   Shipshewana Lake in LaGrange County is a small lake as defined in IC 14-15-3-1.

(2)   A majority of the abutting property owners petitioned the [Commission] to establish this exemption.

(3)   The exemption to the speed limit would not result in an unreasonable hazard to persons.

(4)   The exemption to the speed limit would result in unreasonable harm to fish, wildlife, and botanical resources.

 

Therefore, the DNR will not be proposing a rule to allow this exemption to the speed limit….

 

5. On page 3 of “Stipulated Prehearing Exhibit 1”, the DNR provides background information.  “…IC 14-15-3-11 allows an individual to petition the [Commission] to exempt boats from the maximum speed limit of ten (10) miles per hour (required…in IC 14-15-3-10) on small lakes.  A small lake is defined in IC 14-15-3-1 as a body of public water that has a surface area that does not exceed 300 acres….”

 

[VOLUME 12, PAGE 329]

 

6. IC 14-15-3-10 states that subject to IC 14-15-3-11, “a person may not operate a motorboat upon a small lake at a speed greater than (10) miles per hour.”

 

7. IC 14-15-3-11 states:

 

     Sec. 11. (a) The [C]ommission may adopt rules under IC 4-22-2 to exempt a small lake containing more than seventy (70) acres from [IC 14-15-3-10] if the following conditions exist:
        (1) A majority of the abutting property owners petitions the [C]ommission as provided in this section.
        (2) An unreasonable hazard to persons would not result.
        (3) An unreasonable harm to fish, wildlife, or botanical resources would not result.
    (b) A petition under this section must specify one (1) of the following periods for exemption from section 10 of this chapter:
        (1) Each day of the week (Sunday through Saturday) from 1 p.m. to 4 p.m. (local time prevailing).
        (2) Monday, Thursday, and Saturday from 1 p.m. to 4 p.m. (local time prevailing).
        (3) Saturday from 1 p.m. to 4 p.m. (local time prevailing).
        (4) Each day of the week (Sunday through Saturday) from sunrise to sunset if the small lake is owned, leased, or operated in whole or in part by a political subdivision (as defined in IC 36-1-2-13).
        (5) Each day of the week (Sunday through Saturday) from sunrise to sunset if the small lake is connected by a natural channel to a lake having a surface area of more than three hundred (300) acres.
    (c) The [C]ommission may not establish a period that deviates from the period requested in the petition. However, the [C]ommission may adopt rules to establish restrictions for the safe operation of watercraft if unusual conditions or hazards would otherwise result by granting the exemption.
    (d) The [C]ommission may adopt rules under IC 4-22-2 to rescind or amend an exemption granted under subsection (a) if:
        (1) a majority of the abutting property owners of a small lake that has been exempted under this section petitions the commission in substantial accordance with the appropriate corresponding requirements of subsection (f) to rescind the exemption; or
        (2) the [C]ommission determines that because of the exemption:
            (A) there is an unreasonable hazard to persons; or
            (B) unreasonable harm to fish, wildlife, or botanical resources is occurring.
    (e) Before the adoption of a rule under subsection (a), the [C]ommission must certify that the petition represents a majority of the abutting property owners. A determination under this subsection is subject to IC 4-21.5.
    (f) A petition under this section must be in the following form:
        To the State of Indiana
        Department of Natural Resources
    The undersigned, all owners of abutting property to (name of lake) and situated in ___________ County, Indiana, petition the department to post time periods exempting (name of lake) from speed limits as specified in IC 14-15-3-10 as follows:
    (Petition to specify one (1) of the time periods listed above.)
    We certify that, according to land and water acreage maps on file with the department or certified survey attached, (name of lake) is less than three hundred (300) acres and more than seventy (70) acres, as specified in IC 14-15-3 and that the signatures listed on this petition represent a majority of bona fide property owners of abutting property of (name of lake), as recorded in the office of the county recorder of (name of county). The department may verify the validity of the signatures. We also understand and agree that this petition, when certified, may not be changed or altered within two (2) years from the date of the certification.
______________________                _____________________
Signed                                     Lake Property Address
_____________________
Date

 

8. AOPA provides an “agency action” includes “the whole or part of an order”.  IC 4-21.5-1-4.  An “order” is an “agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons….”  A “license” is one form of order.  IC 4-21.5-1-9.

9. The DNR letter to Taylor described in Finding 4 includes an “agency action” and “order” under AOPA.[1]

 

10. The DNR letter to Taylor is an exercise of agency authority under IC 14-15-3 (sometimes referred to as the “Watercraft Operations Act”).  The Commission is the DNR’s “ultimate authority” under IC 14-10-2-3 and AOPA for the Watercraft Operations Act.  French v. Abad, et al. 9 Caddnar 176 (2004).

 

11. Taylor’s complaint seeks relief under AOPA from an agency action and order issued by the DNR under the Watercraft Operations Act.  Taylor has established a sufficient basis under IC 4-21.5-3-7(a) for administrative review by the Commission.

 

12. The Commission has jurisdiction over the subject matter and jurisdiction over the persons of the parties.

 

[VOLUME 12, PAGE 330]

 

B. Submission for Commission Disposition under AOPA upon Stipulated Facts

 

13. Beyond the matters referenced in the previous Findings, the parties stipulated to additional facts during the prehearing conference held on August 16.

 

14. A true and accurate copy of Commission Information Bulletin #67 governing Small Lakes (Exemptions from Speed Limits), posted in the Ind. Reg. on June 1, 2011 at 20110601-IR-312110314NRA, was “Stipulated Prehearing Exhibit 2”.  This nonrule policy document is “Information Bulletin #67”.

 

15. Shipshewana Lake is a “small lake” as defined at IC 14-15-3-1.

 

16. Shipshewana Lake contains approximately 200 acres and is sufficiently large to qualify for the speed-limit exemption process anticipated by IC 14-15-3.

 

17. A majority of the property owners that abut Shipshewana Lake petitioned the Commission to establish, by rule, an exemption from the speed limit of ten miles per hour that otherwise applies to small lakes.

 

18. The parties agreed the administrative law judge should, as soon as practicable, enter a nonfinal order eligible to ripen into a final disposition of this proceeding.  The facts would be derived from the pleadings and documents, including matters attached to or stipulated in a “Report of Prehearing Conference” entered on August 16, 2011.  Either or both parties could elect to file “objections” to the nonfinal order under IC 4-21.5-3-29 and 312 IAC 3-1-12.  If no objections are filed, the parties agreed the matter would be tendered to the Commission at its next meeting for consideration of possible rule adoption under IC 4-22.

 

19. The proceeding is ripe for action under AOPA.

 

C. Evolution and Structure of Laws to Exempt Specified Lakes from the General Prohibition on Motorboat Operations in Excess of Ten Miles per Hour

 

20. The earliest statutory antecedent to IC 14-15-3-11 was enacted by the Indiana General Assembly in 1957.  Acts 1957, ch. 221.  The statute was formerly codified as IC 14-1-1-24 [repealed].

 

21. The process for exempting motorboats from the ordinary 10-mile-per-hour speed limit, otherwise applicable to a lake smaller than 300 acres but larger than 70 acres, was available only on a “public freshwater lake” until 1985.  For the Watercraft Operations Act, a “lake” is defined as “a natural or artificial lake”.  IC 14-18-2-137(a).  The term “public freshwater lake” is not defined in the Watercraft Operations Act.  Although with important exceptions, the term is defined generally at IC 14-26-2-3 to mean lakes “used by the public with the acquiescence of a riparian owner.”

 

22. Amendments made to IC 14-1-1-24 in 1985 expanded the availability of the exemption process to any small lake larger than 70 acres.  P.L.4-1985.  A “public freshwater lake” meeting the size requirements continued to qualify.   Another lake meeting the size requirements but not satisfying the definition of a “public freshwater lake” could also qualify.

 

23. Through 1986, a petition to exempt a small lake from high-speed boating was processed by the DNR.  The DNR had no discretion if a petition contained a sufficient number of signatures.  If 51% of the “bona fide property owners of abutting property” approved, DNR was obliged to grant a petition.  No methodology was specified to compile or codify a listing of exempted lakes.

 

24. P.L. 119-1986 amended IC 14-1-1-24 [repealed] to relocate authority from the DNR to the Commission and to require that the authority be exercised by rule.  New language provided: “The [C]omission may, by rule adopted under IC 4-22-2, exempt a small lake containing more than seventy (70) acres” from the prohibition on operating motorboats in excess of ten miles per hour.  But the Commission was prohibited from adopting a rule to provide an exemption if the result would be an “unreasonable hazard to persons” or “unreasonable harm to fish, wildlife, or botanical resources.”  In addition, by rule the Commission could establish restrictions within a qualifying lake “for the safe operation of watercraft where unusual conditions or hazards would otherwise exist.”

 

25. P.L. 119-1986 also effectively “grandfathered” small lakes previously approved for exemption by the DNR.  These were identified in DNR Division of Law Enforcement Bulletin #4, Small Lakes Exempted before September 1, 1985 from General Restriction Against High Speed Watercraft, 10 Ind. Reg. 1179 (February 1, 1987) [Repealed].

 

26. Small lakes exempted by Commission rules, following the 1986 statutory amendments, were initially codified at 310 IAC 2-32.  The codification was independent of the identification of grandfathered lakes in Division of Law Enforcement Bulletin #4.  In 1993, the Commission repealed 312 IAC 2-32 and recodified the exempted small lakes at 310 IAC 2.1-10 [repealed].  The recodification integrated the codification of lakes exempted by the Commission after 1986 with lakes exempted by the DNR before 1986.  In 2001, the Commission repealed 310 IAC 2.1-10 and recodifed the listing of exempted small lakes at their current codification in 312 IAC 5-11.

 

27. P.L. 112-1988 again amended IC 14-1-1-24 [repealed].  Before rule adoption, the Commission was required to certify that more than 50% of adjacent landowners approved an exemption petition.  Notably, the certification was explicitly made subject to review under AOPA.

 

28. In 1995, IC 14-1-1-24 was repealed and recodified at its current location in IC 14-15-3-11.  As set forth previously in Finding 7, the certification language of P.L. 112-1998 is now included in subsection (e) of IC 14-15-3-11:

 

(e) Before the adoption of a rule [to establish an exemption from the prohibition on high-speed boating on a qualified small lake] under subsection (a), the [C]ommission must certify that the petition represents a majority of the abutting property owners.  A determination under this subsection is subject to IC 4-21.5.

 

[VOLUME 12, PAGE 331]

 

D. Procedural Implementation of Exemption Request with respect to Shipshewana Lake

 

29. A “certification” is a form of “license” that may be issued to a person by the DNR, the Commission, or the DNR’s director “under Indiana law.”  As provided in IC 14-11-3-1, “Notwithstanding any other law, the DNR’s director “shall issue all licenses,” although a DNR designee of the director may issue licenses on his behalf.  The Commission is precluded from issuing certifications and other forms of licenses.  IC 14-11-3-1.

 

 

30. The certification required by IC 14-15-3-11(e) must be issued by the DNR director or his designee rather than by the Commission.  DNR’s Division of Fish and Wildlife functioned as the Director’s designee when it issued the order described in Finding 4.[2]  As the “ultimate authority” for the DNR under IC 14-10-2-3, the Commission provides for administrative review.

 

 

31. The requirement is explicit that the DNR determine whether a petition for an exemption from the prohibition on high-speed boating “represents a majority of the abutting property owners.”  Information Bulletin #67 lends prospective guidance for determining what will, on other lakes, be challenges to determining whether a petition actually contains a majority of signature.  But the parties in this proceeding agree that a majority of abutting property owners signed the petition, and the guidance offered by Information Bulletin on administrative review is unneeded.  The petition for Shipshewana Lake contains the requisite signatures. 

 

32. The need to determine other variables is implicit to evaluating the certification required by IC 14-15-3-11(g).  To be eligible, a water course must be a “small lake” that contains at least 70 acres.  The parties here again agree.  Shipshewana Lakes is a “small lake” that contains fewer than 300 acres but more than 70 acres.  Shipshewana Lake contains approximately 200 acres.[3]

 

33. The petition to exempt Shipshewana Lake meets the explicit and implicit requirements for a favorable adjudication of the status determination that is required prior to considering rule adoption.  The petition represents a majority of the abutting property owners.  Shipshewana Lake is a small lake that contains fewer than 300 acres but more than 70 acres.

 

34. Evaluation of the petition in terms of rule adoption is governed by IC 4-22 (sometimes referred to as the “State Agency Rule Act” or “SARA”).

 

35. Included in the definition of a “rule” is “the whole or any part of an agency statement of general applicability that…has or is designed to have the effect of law.”  IC 4-21.5-1-14.

 

36. When the Commission is exercising its responsibilities under AOPA, its functions are similar to those of a court or what are sometimes called “quasi-judicial” functions.  When the Commission is exercising its responsibilities under SARA, its functions are similar to those of a legislature or what are sometimes called “quasi-legislative” functions.  Burke’s Vinyl Seawalls & Reynolds v. DNR, 11 Caddnar 345 (2008).

 

37. When determining whether to adopt a rule under SARA for Shipshewana Lake, the Commission is functioning in its quasi-legislative capacity.  Analyses are not directed to the development of an “order” having application to an individual or individuals but rather to balancing interests in seeking the general public good.  According to the Indiana General Assembly’s directive in IC 14-15-3-11, the Commission cannot properly adopt a rule to provide an exemption if the result would be an “unreasonable hazard to persons” or “unreasonable harm to fish, wildlife, or botanical resources.”  In addition, by rule the Commission may properly establish restrictions within a qualifying lake “for the safe operation of watercraft where unusual conditions or hazards would otherwise exist.”

 

38. Contrary to the contention in Taylor’s complaint, in considering rule adoption the Commission is authorized and even required to consider factors other than whether a majority of abutting property owners favor the petition.  The amendments in P.L. 119-1986 rejected prior law when DNR grant of a petition, with adequate signatures, was a ministerial function.  The Commission grant can only be performed through rule adoption and only with appropriate evaluation of substantive statutory factors.

 

39. The DNR’s conclusion in Finding 4 that an exemption from the ten-mile-per-hour speed limit would not result in an unreasonable hazard to persons (but would result in unreasonable harm to fish, wildlife, and botanical resources) is, however, premature and beyond the scope of an AOPA order for a status determination.

 

40. The Commission must evaluate the petition in its quasi-legislative capacity before determining whether to adopt a rule exempting Shipshewana Lake from the prohibition on high-speed boating.  Taylor and others who support, citizens who oppose, and DNR professionals who offer insights may express perspectives regarding a rule proposal prior to preliminary adoption.  If the Commission elects to give preliminary adoption, the proposal must properly be vetted through the rigors of IC 4-22.