CADDNAR

 

[CITE: Skilbred, et al. v. Ward, et al., 13 CADDNAR 125 (2013)]

 

 

[VOLUME 13, PAGE 125]

 

Cause #: 12-014W

Caption:  Skilbred, et al. v. Ward, et al.

Administrative Law Judge: Jensen

Attorneys: Neizer, Murphy (Claimants); Kuchmay (Ward, Ensley); Wyndham (DNR)

Date: March 15, 2013

 

 

[NOTE 1: ON MAY 3, 2013, ASHLEY FILED VERIFIED PETITION FOR JUDICIAL REVIEW IN THE ALLEN SUPERIOR COURT IN CAUSE NO. 02-D01-1305-MI-9514. ON JULY 8, 2014, THE ALLEN SUPERIOR COURT ENTERED ITS ORDER. SEE ALSO RELATED MATTER, Skilbred, et al. v. Spaw, et al., 13 CADDNAR 99 (2013); ADMINISTRATIVE CAUSE NUMBERS 11-160W, 11-161W, and 11-162W).]

 

[See Editor’s notes within this document regarding change in the decision’s original format.]

 

FINAL ORDER ALONG WITH ORDER DENYING PETITIONERS’ MOTION FOR STAY OF EFFECTIVENESS

 

109. The Petitioners’ Petition for Stay of Effectiveness of PL-21897 is denied.

 

110. The issuance of PL-21897 to the Applicant Respondents by the Department is hereby affirmed in all respects except with the following revisions to address the proportionate ownership of Lot 75 between the Wards and the Mossers:

 

  1. The riparian zone associated with Riparian Easement 75 shall be reduced in width by 0.67 feet.

 

  1. The revision requested by the Wards as reflected in the diagram submitted to the Department on July 2, 2012, which is attached as Exhibit B and incorporated herein, shall be approved. [Editor’s Note: For CADDNAR formatting, Exhibit B is inserted immediately below.]

 

http://www.in.gov/nrc/decision/images/12-014w.v13_files/image001.jpg

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Procedural Background and Jurisdiction:

 

1.      On January 9, 2012, the Petitioners, Lawrence J. Skilbred, Patricia L. Skilbred, James A. Williams, Patricia A. Williams, John D. Gross, Sylvia S. Gross, Lynn E. Fisher and Betty J. Fisher as Trustees of the Revocable Living Trust of Lynn E. Fisher & Betty J. Fisher dated July 2, 2008, Michael M. Ashley, Lana S. Ashley, Lloyd A. Bickel, Karen A. Bickel, Carl Ray Mosser, Margaret M. Mosser, Phillip E. Lake, Karen M. Lake, Debra Ann Cozmas Parkinson, Page D. Liggett as Trustee of The Page and Carole Liggett 2005 Trust dated November 1, 2005, Roger N. Meyer, Beverly A. Meyer, Long View Financial, LLC, Thomas A. Hare, III, Regina K. Hare, James R. Morris and Mary Jane Johnson, (referred to collectively as “the Petitioners”), by counsel Barrett & McNagny LLP, filed the above captioned proceeding for the administrative review of the Department of Natural Resources’ (“Department”) approval of Permit PL-21897 (“PL-21897”) .

 

2.      The Petitioners, through the initiation of the instant proceeding, also sought an order staying the effectiveness of PL-21897.

 

3.      PL-21897 was issued to Gary Ward and Nadene Ward (hereinafter referred to collectively as “the Wards”) , who own Lot 76 and a portion of Lot 75 in Block 7 of Long Lake Park, and Carol Ensley (Ensley), who owns Lots 77, 78 and 79 in Block 7 of Long Lake Park.  The Wards and Ensley (hereinafter referred to collectively as the “Applicant Respondents”) jointly submitted the application for PL-21897 to the Department after agreeing to combine their individual six foot riparian easements as established in the plat of Long Lake Park.  (See Spaw v. Ashley, 12 CADDNAR 233 (2010), affirmed in a Memorandum Decision of the Indiana Court of Appeals on April 17, 2012).

 

4.      Hereinafter the Department and the Applicant Respondents will be referred to collectively as “the Respondents.”

 

5.      PL-21897 authorizes the construction of one pier extending into Big Long Lake from a thirty foot strip of shoreline established by combining the six foot riparian easements of the Applicant Respondents.  Use of the pier would be shared by the Applicant Respondents.

 

6.      Big Long Lake is a public freshwater lake.  Indiana Code § 14-26-2-3, Spaw v. Ashley, 12 CADDNAR 233 (2010).

 

7.      PL-21897 was issued under the authority of Indiana Code § 14-26-2, commonly referred to as the Lake Preservation Act (“LPA”), and 312 IAC 11-1 through 312 IAC 11-5 adopted for the purpose of implementing the LPA. 

 

[VOLUME 13, PAGE 126]

 

8.      The Department is the administrative agency responsible for the administration of the LPA.

 

9.      The Commission is the ultimate authority for proceedings involving the LPA. Indiana Code § 14-10-2-3 and 312 IAC 3-1-2. 

 

10.  The Commission is possessed of jurisdiction over the subject matter and over the persons of the parties involved in the instant proceedings.   

 

11.  Procedurally, Indiana Code §§ 4-21.5-3, commonly referred to as the Administrative Orders and Procedures Act, (“AOPA”), and 312 IAC 3, adopted for the purpose of the Commission’s implementation of AOPA, govern this proceeding.

 

12.  Throughout, the Petitioners have been represented by counsel, Thomas M. Niezer, Patrick G. Murphy and Kyle M. Baltes, of Barrett & McNagney, LLP and the Respondent, Department, has been represented by counsel, Eric L. Wyndham.  All Applicant Respondents acted pro se until August 20, 2012, when Jason M. Kuchmay, Federoff Kuchmay LLP, appeared on behalf of the Wards.  Ensley continued without counsel.

 

13.  At the prehearing conference conducted on February 10, 2012 a schedule for briefing associated with motions for summary judgment was established and oral argument on the summary judgment motions was scheduled for May 16, 2012.  A hearing on the Petitioners’ motion for stay of effectiveness of PL-21897 was scheduled for March 19, 2012.

 

14.  The Petitioners filed their motion for summary judgment, which was not responded to by the Respondents.  Following multiple continuances on motions of both the Petitioners and the Applicant Respondents, the oral argument on the summary judgment motion was conducted on August 22, 2012.    

 

15.  An interlocutory “Order on Petitioners’ Motion for Summary Judgment” was issued on August 29, 2012 granting partial summary judgment in favor of the Respondents.  Three specifically identified issues remained for an administrative hearing. 

 

16.  A hearing on the Petitioners’ motion for stay of effectiveness of PL-21897 was conducted as scheduled on March 19, 2012.  The Petitioners stipulated that the evidentiary material submitted in support of their motion for summary judgment would constitute the entirety of the Petitioners’ evidence in support an order staying effectiveness of PL-21897 and sought only to present oral argument at that time.  The Respondents also offered no additional evidence at the stay hearing.  The order on the Petitioners’ motion for stay of effectiveness is incorporated herein.

 

17.  An administrative hearing was scheduled for October 11, 2012 and on the motion of the Petitioners was continued to October 23, 2012.  On October 22, 2012 at 3:31p.m. the Petitioners filed by electronic mail “Petitioners’ Notice of Incorporation of Argument and Evidence” stating that they were “notifying the Commission and the Respondents that they incorporate their evidence designated in support of the Petitioners’ Motion for Summary Judgment …and incorporate the arguments made therein.”  Along with the filing was the email correspondence, which read:

 

Judge Jensen

 

Please see attached Notice of Incorporation of Argument and Evidence from my clients’ previously filed Motion for Summary Judgment.  My clients’ have directed me not to attend tomorrow’s hearing or present any new evidence.

 

Pat

 

18.  The Respondents objected to the incorporation of the Petitioners’ previous evidence and argument and requested that an order of default be issued against the Petitioners with respect to the three issues remaining for consideration.  The Respondents were provided until October 29, 2012 to file briefs in support of their objections and request for default judgment.

 

19.  On October 30, 2012, the administrative law judge denied the Respondents’ request for default judgment and authorized the incorporation of the Petitioners’ evidentiary submissions and argument made for purposes of summary judgment.  See “Order Granting Petitioners’ Notice of Incorporation of Argument and Evidence and Denying Respondents’ Motion for Judgment on the Evidence”

 

20.  In light of the Petitioners’ voluntary absence, the administrative hearing was conducted on October 23, 2012 with the Respondents presenting evidence and testimony outside the presence of the Petitioners.  

 

21.  Ensley was not present for the administrative hearing although it was verbally reported to the administrative law judge that Ensley was ill and unable to attend but did not wish to have the administrative hearing continued offering that she was willing to accept the outcome based upon the evidence and argument presented by the Wards. 

 

22.  The Commission has previously determined that consideration of a final disposition as applicable to less than all of the similarly situated parties would fail to fully adjudicate the matters presented.  Bieda v. B&R Development and DNR, 9 CADDNAR 1, (2001).  Therefore, it is appropriate that each of the Applicant Respondents will be bound by the determination herein. 

 

PRECEDING LITIGATION:

 

23.  Many of the parties to the instant administrative cause were previously involved in litigation relating to a determination of riparian rights resulting from grants contained within the plat of Long Lake Park from the developer, Lee J. Hartzell.  PL-21897 was issued subsequent to and in apparent reliance upon the decisions resulting from the previous litigation.  It is believed that a brief synopsis of the findings from the previous litigation will provide a degree of perspective useful to understanding the discussion that follows.[1]

 

24.  The first litigation of interest is Spaw v. Ashley, 12 CADDNAR 233, (2010), which was affirmed by the Allen County Circuit Court on judicial review and was also affirmed in a Memorandum Opinion issued on April 17, 2012 by the Indiana Court of Appeals.  Ashley, et al. v. Spaw, et al, Cause No. 02A03-1108-MI-340. The Petitioners below did not seek transfer. 

 

25.  The second litigation of importance to this proceeding is Altevogt, et al. v. Brand, et al., Cause No. 44C01-0811-MI-066, decided by the LaGrange County Circuit Court on May 6, 2011 and affirmed by the Indiana Court of Appeals at Altevogt, et al. v. Brand, et al., No. 44A03-1106-MI-237, March 15, 2012.  Again, the Petitioners below did not seek transfer. 

 

[VOLUME 13, PAGE 127]

 

26.  In Spaw it was determined that through one grant contained within the Long Lake Park plat the “drives, alleys and walks”, which with respect to Block 7 of Long Lake Park, include Shawnee Drive, Sioux Drive, a three-pronged alley existing within Block 7, and Indian Trail, are available for use by any Lot owner within Long Lake Park. 

 

27.  The Spaw decision also found that by a separate and distinct grant contained within the plat of Long Lake Park, an easement six feet in width on the shoreline of Big Long Lake that “conveyed riparian rights to the lot owners as the dominant tenants” was created for each individual Lot owner as a “boat landing”.  Id.  The six foot easements (hereinafter referred to as “riparian easements”) were identified by Lot number and geographically situated by consecutive numbering beginning at the northern most point of the Block within which the Lot was located and continued southerly until all Lots within the Block were provided a six foot segment of shoreline, which did not require the use of the entire shoreline within Block 7.  Spaw at 238.   It was determined in Spaw that the use of the riparian easements as “boat landings” included the right to place a pier.  Spaw at 243.

 

28.  The following diagram provides a degree of visual assistance in understanding the Long Lake Park platting.

 

 

block7_8.jpg

Spaw at 245.

 

29.  On judicial review and before the Indiana Court of Appeals, the appellants, many of whom are Petitioners in the instant proceeding, sought review of the Commission’s decision in Spaw only with respect to whether the “back-lot owners’” claims to riparian rights associated with the riparian easements were barred by the doctrine of laches or had been abandoned.  Ashley, et al. v. Spaw, et al, Cause No. 02A03-1108-MI-340.  (The Applicant Respondents in the instant proceeding would have been considered “back-lot owners” in that proceeding.)  The Commission’s determinations, as relevant to this proceeding, finding (1) the establishment of riparian rights through the grant of six foot riparian easements to each Lot owner within Long Lake Park; (2) that the grant of riparian rights included the right of the Lot owners to maintain piers; and, (3) the boundaries of the riparian zones associated with the riparian easements; were not further contested on judicial review or appeal and may not now be questioned.  

 

30.  In Altevogt, the LaGrange County Circuit Court denied the Plaintiffs’ Petition seeking a determination that by dedication, adverse possession or otherwise that, as relevant here, the owners of Lots 71 through 74 in Block 7, actually own the Indian Trail immediately adjacent to their Lots.  In denying their claim of ownership of the Indian Trail, the Altevogt decision states that “Plaintiffs cannot prove any of the elements of CONTROL, INTENT, or NOTICE by clear and convincing evidence, even though to prevail Plaintiffs must prove not one, but all of these elements.” At pg. 17   The court concluded that “[i]t was the intent of the Developer, Lee J. Hartzell, as expressed in the plat and restrictions, that all lot owners in the Plat of Long Lake Park to be co-tenants as to all drives, alleys and walkways, including the Indian Trail.  At pg. 20.  The Court of Appeals, in affirmation, stated “the Plaintiffs have not established title by adverse possession.” 

 

31.  The Court of Appeals further clarified that the LaGrange Circuit Court’s reference to the Lot owners as “co-tenants as to all drives, alleys and walkways, including the Indian Trail” did not mean “title to the Indian Trail has been quieted in all lot owners as co-tenants.”  Instead the Court of Appeals concluded: “what is clear is that all lot owners have an easement to use the Indian Trail, regardless of the fee owner, and that the [Petitioners] have not established title by adverse possession.” Altevogt v. Brand, 963 N.E.2d 1146, 1155, (Ind. App. 2012).

 

[VOLUME 13, PAGE 128]

 

OVERVIEW OF ISSUES PRESENTED:

 

32.  The Petitioners maintain that the Applicant Respondents are without legal authority under common law to aggregate multiple riparian easements to create one larger riparian zone within which they may place a pier.  The Petitioners argue that in doing so the owner of each dominant estate, in this case each of the Applicant Respondents, are unlawfully subjecting the servient estate attached to one riparian easement to greater burdens associated with service to multiple Lots instead of to one Lot as contemplated by the grantor of the easement.  For this reason the Petitioners also contend that the Department’s approval of PL-21897 is likewise unlawful.

 

33.  The Petitioners argue that PL-21897 and the construction authorized by PL-21897 will frustrate the rights of adjoining or surrounding riparian owners with respect to access to Big Long Lake and utilization of riparian rights and navigation.

 

34.  The Petitioners advance the position that the Department’s approval of PL-21897 violates   “Riparian Zones within Public Freshwater Lakes and Navigable Waters,” Information Bulletin #56 (Second Amendment), Legislative Services Agency, 20100331-IR-312100175NRA (March 31, 2010), (hereinafter referred to as IB #56) and that the pier authorized will pose significant safety and navigation risks.

35.  The Petitioners charge that the Applicant Respondents attempted to subvert group pier permitting under 312 IAC 11-2-11.5 and that PL-21897 should properly have been reviewed by the Department under the more stringent rules associated with group piers.

 

36.  The Petitioners, under a claim of fee ownership in the Indian Trail, claim that the construction authorized by PL-21897 will infringe upon real property and riparian rights and occasions a “taking of Petitioners’ real property interests without just compensation.”

 

37.  Individual Petitioners, Carl Ray Mosser and Margaret M. Mosser (“the Mossers”) , claim to be the record owners of the “southwest portion of Lot 75 in Block 7 of Long Lake Park” and on that basis contend that the inclusion of any portion of the riparian easement correlating with the portion of Lot 75 owned by them into PL-21897 is inappropriate.

 

SUMMARY JUDGMENT STANDARD:

 

38.  Under AOPA, summary judgment motions shall be considered in the same manner as a court that is considering a motion filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.  Indiana Code § 4-21.5-3-23

 

39.  “The judgment sought shall be rendered forthwith if the designated evidentiary material shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be.”  Indiana Rules of Trial Procedure, Trial Rule 56(C).

 

40.  “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.  A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.”  Rosheck v. Mader Dental, 12 CADDNAR 251 (2010), (internal citations omitted).

 

41.  “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.”  Wells v. Hickman, 657 N.E.2d 172, 175, (Ind. App. 1995).

 

42.  “A party or parties moving for summary judgment have the burden of proof with respect to summary judgment, regardless of whether it or they would have the burden in an evidentiary hearing.”  Save Our Rivers, et al. v. Guenther, Ford & DNR, 10 CADDNAR 213 (2006) citing Regina Bieda v. B & R Development and DNR, 9 CADDNAR 1 (2001).

 

43.  “Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party.”  Musgrave v. Squaw Creek Coal Co. and DNR, 12 CADDNAR 192, 197, (2009), citing Travelers Indem. Co. of America v. Jarrells, 906 N.E.2d 912, 915 (Ind. Ct. App. 2009).

 

44.  “When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.”  Indiana Rules of Trial Procedure, Trial Rule 56(B).

 

45.  “Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.”  Indiana Rules of Trial Procedure, Trial Rule 56(C). “A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties.”  Trial Rule 56(C).

 

46.  If a judgment is not rendered upon the entirety of the case, the administrative law judge shall “make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”  Trial Rule 56(D).

 

ISSUES DETERMINED BY SUMMARY JUDGMENT UPON WHICH THERE IS NO ISSUE OF MATERIAL FACT AND UPON WHICH JUDGMENT WAS GRANTED AS A MATTER OF LAW:

 

47.  After consideration of the Petitioners’ motion for summary judgment and brief in support along with designated evidentiary material and argument on the motion, certain facts and issues, as specified in findings 32 through 37, were determined to be without substantial controversy.

 

48.  The Lot owners within Long Lake Park, including the Petitioners, are not owners of the servient estates associated with either the appurtenant riparian easements or the easement in gross to Indian Trail granted by the plat to Long Lake Park.  Consequently and as applicable to this proceeding, the Petitioners are not “aggrieved or adversely affected” persons qualified under Indiana Code § 4-21.5-3-7(a)(1)(B) to initiate the instant proceeding to address allegations that the pier authorized by PL-21897 will increase burdens upon those servient estates.

 

49.  Application of common law with respect to the exercise of riparian rights was modified by the enactment of Indiana Code §§ 14-26 et seq., commonly referred to as the Lakes Preservation Act, and applicable administrative rules found at 312 IAC 11, which place Indiana’s public freshwater lakes under the governance of the Department in trust for the benefit of all citizens of the state.  Included in the Department’s authority is the ability to require common usage by multiple riparian owners of one structure placed within a public freshwater lake. 312 IAC 11-3-4(b).

 

[VOLUME 13, PAGE 129]

 

50.  The Petitioners’ contention that common law principles associated with the appurtenant easements should be applied to prohibit the Applicant Respondents from aggregating their individual six foot riparian easements into the 30 foot shoreline segment being utilized for the construction of the pier authorized by PL-21897 is incorrect.

 

51.  All of the Lot Owners within Long Lake Park are co-tenants of the dominant estate in the Indian Trail, by which each Lot owner is authorized to use the Indian Trail without being subjected to interference by any other Lot owner.  

 

52.  PL-21897 does not authorize any activity landward of the shoreline of Big Long Lake and therefore, the pier construction as authorized by PL-21897 will in no way encroach upon the Indian Trail or interfere with other Lot owners’ use of the Indian Trail. 

 

53.  Petitioners, who are not the owners of the real property associated with the Indian Trail and to whom the Hartzell plat does not grant riparian rights associated with the Indian Trail, do possess the right to use the Indian Trail.  The Petitioners’ property rights associated with their use of the Indian Trail have not been violated and they have not been subjected to a “taking” without just compensation.

 

54.  The activity authorized by PL-21897 occurs within an appropriate aggregated riparian zone.

 

55.  The construction authorized by PL-21897 is compliant with the minimum setback requirements established by IB #56.

 

56.  The Order on Petitioners’ Motion for Summary Judgment issued on August 29, 2012 is hereby attached as Exhibit A and incorporated by reference as if set forth herein.

 

57.  Following the conclusion of the administrative hearing in the instant proceeding and in accordance with Indiana Rules of Trial Procedure, Trial Rule 56(D), these matters are deemed established.

 

ISSUES NOT DETERMINED ON SUMMARY JUDGMENT:

 

58.  The issues not determined on summary judgment motions for which the administrative hearing was conducted and to which the remainder of this Order is dedicated, relate to considerations of:   

 

-           Issues of “the management of watercraft operation under IC 14-15;

-           “The interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake” as specified at Indiana Code § 14-26-2-23(4 & 5); and,

-           Issues associated with the ownership of Lot 75 of Long Lake Park.

Order on Petitioners’ Motion for Summary Judgment.

 

59.  For ease of reference, from this point forward specific riparian easements will be referred to by the associated Lot number.  For instance the riparian easement correlating to Lot 75 will be referred to as “Riparian Easement 75” and the riparian easement associated with Lot 76 will be referred to as “Riparian Easement 76” and so forth. 

 

The Pier Authorized by PL-21897

 

60.  The pier authorized by PL-21897 (hereinafter referred to as “the Pier”) is to be three feet in width and “extend 110’ lakeward of, and perpendicular to, the legal shoreline…” and is authorized to be placed along a 30 foot section of the shoreline of Big Long Lake created by the aggregation of Riparian Easements 75 through 79.  Petitioners’ Exhibit 5.

 

61.  PL-21897 contains a Special Condition numbered 7, which reads; “do not moor boats within 80’ of the shoreline.[2]  Respondent’s Exhibit A, pg. 30 and W-1, tab 3.

 

62.  PL-21897 also contains a Special Condition numbered 6, requiring the Applicant Respondents to “maintain a 5’ buffer between any watercraft moored to the pier and the dividing lines between the riparian zones” of Riparian Easements 74 and 75 and Riparian Easements 79 and 80.  Id.

 

63.  As approved the Applicant Respondents may moor watercraft on either side of the Pier utilizing eight feet in width on the south side and nine feet in width on the north side only on the most lakeward 30 feet of the Pier.  Respondent’s Exhibit A, pgs. 30 & 33 and W-1, tab 3.

 

64.  Allyson Oliger (Oliger), who is employed as an Environmental Manager for the Department’s Division of Water, takes an administrative role in the review of permits under the LPA.  A part of her responsibilities includes routing permit applications for review by other relevant Department Divisions and insuring compliance with the requirements of the LPA.  Testimony of Oliger.

 

65.  James Hebenstreit (“Hebenstreit”), a licensed professional engineer, serves as an Assistant Director of the Department’s Division of Water overseeing the Resource Management Branch, which is responsible for permitting functions such as was involved with PL-21897.  Testimony of Hebenstreit.  Hebenstreit serves as a delegate for the Department Director with respect to the approval of most permits and in that capacity is responsible for ensuring that all components called for in the LPA have been fulfilled.  Id.

 

Watercraft Operation and Navigational Safety

 

66.  Indiana Code § 14-26-2-23(c)(4) states: 

(c)  The department may issue a permit after investigating the merits of the application.  In determining the merits of the application, the department may consider any factor, including cumulative effects of the proposed activity upon the following:

….

   (4) The management of watercraft operations under IC 14-15.

 

67.  In large part Indiana Code §§ 14-15 focuses on “careful and prudent” watercraft operation giving due regard to “the rights, safety, and property of other persons”, “conditions and hazards, actual and potential, then existing, including weather and density of traffic,” and “possible injury to the person or property of other persons.”  Indiana Code § 14-15-3-3.  As applicable here, persons are prohibited from operating a boat in a manner that “unnecessarily endangers the person or property of another person,” “unnecessarily interferes with the safe and lawful use of public waters by another person.” Indiana Code § 14-15-3-6.  Similarly, persons are disallowed from operating a boat at speeds greater than those “reasonable and prudent, having due regard for the conditions and hazards, actual and potential, then existing, including weather and density or traffic” or in a way that would prevent the person “in the exercise of reasonable care, to bring the boat to a stop within the assured clear distance ahead.”  Indiana Code § 14-15-3-7. 

 

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68.  Indiana Code § 14-15-3-17 specifies that a “motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake…except for trolling or for the purpose of approaching or leaving a dock, pier, or wharf or the shore of the lake or channel” and as relevant to the present proceeding “a motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake…at a speed greater than idle speed.”  Indiana Code § 14-15-3-17.

 

69.  "‘Idle speed’ means the slowest possible speed, not exceeding five (5) miles per hour, so as to maintain steerage whereby the wake or wash created by a boat is minimal.”  312 IAC 5-2-17.

 

70.  The Pier extends only 110 feet from the shoreline, which provides 90 feet of water surface that may lawfully be travelled only at idle speed between the lakeward end of the Pier and high speed boating areas.

 

71.  PL-21897 was reviewed by Lt. Gary Whitaker (“Whitaker”), who presently serves as the Department’s Division of Law Enforcement District 2 Commander and who between 1995 and 2005 logged numerous hours patrolling Big Long Lake.  Testimony of Whitaker.  Corporal Anthony Runyon (“Runyon”), who has 33 years of experience as a conservation officer with the Department’s Division of Law Enforcement including nearly 23 years of experience patrolling Big Long Lake was also involved in the review.  Testimony of  Runyon.

 

72.  The Department’s Division of Law Enforcement was predominantly responsible for the review of navigation and safety issues associated with PL-21897.

 

73.  Runyon testified to his familiarity with the location of the Pier at issue here as well as another pier permitted under a permit numbered PL-21717 and indicated that his review of PL-21897 considered its proximity to the other permitted pier.    

 

74.  Neither Whitaker, nor Runyon expressed concern regarding the length of the Pier with respect to high speed boating. 

 

75.  Oliger also considered the permit numbered PL-21717 as well as the riparian easements possessed by other Lot owners in Block 7 of Long Lake Park.  Testimony of Oliger.  In conducting her review, Oliger, prepared a diagram depicting the pier permitted by PL-21717 and the riparian zones possessed by the other Block 7 Lot owners for visualization of the entire shoreline section.  Testimony of Oliger, Respondents Exhibit A, pg. 63

 

76.  The Petitioners’ expert, Brian C. Grieser (“Grieser”), also expressed no specific concerns regarding high speed boating that lawfully occurs at least 200 feet from the shore.  Grieser, nonetheless maintains that:

 

5.  Without considering the configuration and pier design of all neighboring property owners within Block 7 of Long Lake Park, the relationship of those neighboring piers to the Pier, and the number and type of boats contemplated for the Pier, it is not reasonable for the Indiana Department of Natural Resources to make a finding that the Pier is safe and that navigation of Big Long Lake would not be unduly restricted by its construction.

…

 

7.  The minimum riparian setback requirements of Indiana Department of Natural Resources Bulletin #56 are not adequate to protect the safety of boats and those using Big Long Lake around the Pier under these circumstances, given the expected high numbers and types of watercraft navigating in and around Block 7, together with the proximity of the associated riparian zones to the riparian zones of adjacent property owners within Block 7.

 

8.  Given the expected number of watercraft that the permittees could moor at the Pier, and without any restriction being provided in the permit as to the number, type, or size of watercraft so moored, a five foot (5’) or smaller buffer between the Pier and the adjacent riparian boundary is insufficient to assure navigational safety in and around Block 7.

…

 

10.  The location and design of the Pier, in the configuration and location permitted, will significantly infringe upon, and will prohibit, the lot owners to the north and south of the Respondents’ riparian zones within Block 7 from constructing safe and reasonably navigable pier structures within their respective boat landing easements.  Consistently, a buffer of at least seven feet six inches (7’ 6”), not including space occupied by moored watercraft, should be utilized from the Pier to either riparian boundary.  Depending on the maneuverability of the watercraft and arrangement of the watercraft around the Pier, the necessary buffer may be greater.

Petitioners’ Exhibit 6.

 

77.  With respect to Grieser’s affidavit testimony it was determined on summary judgment as follows:

 

140. Grieser offered the opinion that it was “not reasonable” for the Department to determine that the pier authorized by PL-21897 was safe without considering the pier’s relationship to other piers and the number and type of boats contemplated for the pier.  Grieser’s affidavit explains that he reviewed PL-21897 and IB #56 but identifies no other documents that were reviewed and fails to explain how he arrived at the conclusion that the Department did, in fact, fail to make these considerations.  Furthermore, Grieser states that the minimum setbacks established by IB #56 are “generally suitable to assure navigational safety around pier structures” but expresses that they are inadequate in this situation “given the expected high numbers and types of watercraft navigating in and around Block 7, together with the proximity of the associated riparian zone to the riparian zones of adjacent property owners within Block 7.”  The proximity of one riparian zone to another is generally apparent but Grieser does not elaborate upon how he arrived at a determination of the “expected high number” or the type of boats that will be navigating in the area of the pier associated with PL-21897.  Grieser notes that there is no “restriction being provided in the permit as to the number, type, or size or watercraft” that may utilize the pier associated with PL-21897 and this statement may be accurate.  However, it is observed that the Certificate of Approval associated with PL-21897 reflects that “special conditions” were imposed upon PL-21897 but those special conditions are not included in the Petitioners’ designated evidentiary material.  Petitioners’ Motion for Summary Judgment, Exhibit 5.  Grieser offers the conclusory opinion that the pier authorized by PL-21897 will “significantly infringe upon, and will prohibit, the owners of Lots 74 and 80[3], whose riparian zones are located immediately adjacent to the subject riparian zone” from constructing a useable pier or exercising their riparian rights but fails to elaborate upon how he arrived at this conclusion. 

 

141. Grieser’s conclusions may be entirely accurate.  However, without additional detail explaining the facts upon which those conclusions are based, there is insufficient evidence upon which to accept those conclusions.

 

[VOLUME 13, PAGE 131]

 

78.  At the administrative hearing the Respondents offered evidence contrary to Grieser’s conclusions while the Petitioners chose to present no further evidence in support of their contentions.

 

79.  Contrary to Grieser’s belief the evidence clearly reflects that the Department did consider other permitted piers in the vicinity of the PL-21897 riparian zone.   Testimony of Oliger, Testimony of Runyon, Respondents Exhibit A, pg. 63.

 

80.  Also contrary to Grieser’s affidavit, it is also clear that the Department was generally aware of the numbers and types of watercraft that might be moored to the Pier.  This conclusion may be drawn from the fact that the mooring capacity of the Pier is restricted by the Department’s prohibition on the mooring of watercraft within 80 feet of the shoreline, which leaves only 30 feet of mooring space at the lakeward end of the Pier. Testimony of Nathan Thomas, Testimony of Runyon, Testimony of Whitaker, Respondents Exhibit A, pgs. 132 – 134.

    

81.  The testimony reflects that the typical sizes and types of watercraft on Big Long Lake consist of Pontoon Boats ranging in size from 18 feet to 24 feet in length and Runabouts or Wave Runners (ski-boats) of 8 feet to 10 feet in length.  These watercraft are typically 8 feet to 8.5 feet in width.  Additionally, there are “John Boats” and other smaller fishing boats and row boats frequently found on Big Long Lake.  Testimony of Whitaker and Runyon.

 

82.  The Applicant Respondents presently intend to moor two pontoon boats, one of which is owned by the Wards and one of which is owned by Ensley.  Testimony of Gary Ward.

 

83.  There is no condition contained within PL-21897 to prevent alternative or additional uses except that the use of the Pier is limited as to the space where watercraft may be moored.  This limitation on the mooring space effectively limits the sizes and types of watercraft that may be moored to the Pier.  

 

84.  The dimension of the Wards’ pontoon boat is 22 feet in length by eight feet in width, while Ensley’s pontoon boat is 24 feet in length by eight feet in width.  Id. 

 

85.  The diagram associated with PL-21897 specifies that the pontoon boats will be moored on each side of the Pier at the lakeward end.  Respondent’s Exhibit A, pg. 33 and W-1, tab 3.  Based upon the lengths of the pontoon boats the Wards and Ensley presently own, there would be approximately eight feet of mooring space available in front of the Wards’ pontoon boat and approximately six feet of mooring space available in front of Ensley’s pontoon boat.

 

86.  These dimensional restrictions serve to essentially prohibit the mooring of any additional watercraft although this space could seemingly be utilized for a jet ski, kayaks, rowboats or other smaller watercraft.

 

87.  Application of IB #56 would dictate that the riparian zones to the north and south of the PL-21897 riparian zone would likewise be required to maintain a minimum five foot buffer.  Therefore, a travel lane of 10 feet would expectedly exist between the PL-21897 mooring space and mooring space on either side. 

 

88.  It is reasonable to conclude that watercraft of a size small enough to be moored in an eight foot by nine foot space or and eight foot by six foot space would be able to safely navigate a 10 foot wide navigation lane.

 

89.  In light of the fact that the pontoon boats are expected to be moored at the lakeward end of the Pier, those pontoon boats will be able to pull directly into the mooring space and back directly out of the mooring space.  In this manner, the pontoon boats to be moored at the Pier will not even be required to travel into or across any other persons’ riparian zone.[4] Testimony of Whitaker, Runyon, Ward and Hebenstreit. 

 

90.  The evidence establishes that the only other permitted pier associated with Block 7 of Long Lake Park was constructed under the authority of a permit numbered PL-21717, the riparian zone for which is located 30 feet to the north of the riparian zone associated with PL-21897.  Testimony of Oliger, Respondent’s Exhibit A, pgs.  61 & 63.

 

91.  With 30 feet between PL-21897’s riparian zone and the riparian zone associated with PL-21717 the review indicated no navigational or safety concerns associated with the coexistence of the two authorized piers.  Testimony of Runyon, Testimony of Hebenstreit.

 

92.  There are no navigational safety concerns created by the PL-21897.  Id and Respondents Exhibit A, pgs. 67 & 68.

 

93.  Aside from PL-21897, at issue here, and permit numbered PL-21717, there are no other Permits approved in Block 7 of Long Lake Park.  However, a permit application has been submitted to the Department proposing the placement of multiple piers across the entire shoreline of Block 7 to accommodate all of the Lot owners within Block but is on hold presently awaiting receipt of additional information.  Testimony of Hebenstreit.  The latter permit application proposes to place piers at locations that disregard the location of the riparian easements and possibly propose the placement of piers in the drives contrary to the riparian zones established in Spaw.  Testimony of Oliger and Hebenstreit.  Furthermore, despite the fact that this permit application establishes piers to accommodate every Lot owner within Block 7 of Long Lake Park, not all Block 7 Lot owners have agreed to the permit application.  Testimony of Hebenstreit.  

 

Interests of a Landowner Having Property Rights Abutting the Public Freshwater Lake or Rights to Access the Public Freshwater Lake

 

94.  With respect to interference with the riparian rights of other Lot owners’ it is important to highlight that Riparian Easement 80, which is the sole riparian easement located to the south of the PL-21897 riparian zone, is owned by Alan Macklin.  Petitioners’ Exhibit 4.  Alan Macklin was initially a co-applicant with the Applicant Respondent’s for PL-21897 but voluntarily withdrew from participation.  Testimony of Ward, Respondents Exhibit W-1-2.   In any event, Alan Macklin is not a party to the instant proceeding and the Petitioners herein may not assert legal issues on behalf of a non-party.

 

95.  It is entirely acceptable for one riparian owner to navigate across the riparian zone of another riparian owner for purposes of ingress and egress.  Such “temporary use of this nature does not unreasonably infringe on the riparian rights” of another person.   Barbee Villa Condominium Owners Assoc. v. Shrock, 10 CADDNAR 23, 27, (2005)

 

96.  Despite the lawfulness of one riparian owner traversing the riparian zone of another person for ingress and egress purposes the evidence is clear that the watercraft to be moored at the lakeward end of the Pier may be navigated into and away from the Pier without infringing upon the neighboring riparian zone in any manner.  Testimony of Ward, Whitaker, Runyon and Hebenstreit.

 

97.  Furthermore, in the event any small watercraft are moored in front of the larger craft, the size of those crafts would be of such a small size that it is reasonable to conclude that they could enter and exit the mooring space using only the navigation lane created through compliance with IB #56.

 

[VOLUME 13, PAGE 132]

 

98.  Between the riparian zone associated with PL-21717 and the riparian zone associated with this Permit, there exists Riparian Easements 70 through 74, which constitute 30 feet of shoreline from which certain of the Petitioners possess riparian rights by virtue of the Hartzell plat.  See Spaw.  Aside from Grieser’s affidavit, discussed previously, the Petitioners presented no evidence to support the proposition that PL-21897 or the resulting Pier will prevent the use of Riparian Easements 70 through 74. 

 

99.  The fact that the Applicant Respondents were able to establish the Pier to accommodate multiple Lot owners’ pier needs within a 30 foot section of the shoreline despite the complication of being unable to utilize the first 80 feet of water lakeward of the shoreline is proof that the Petitioners who own Riparian Easements 70 through 74 could likewise utilize their riparian rights.

 

100.          The evidence does not support the conclusion that PL-21897 authorizes a Pier the use of which will infringe upon the riparian rights of other Lot owners within Long Lake Park.

 

101.          Swimming within the PL-21897 riparian zone is not realistic as a result of the thick Spatterdock vegetation.  Testimony of Runyon, Thomas and Whitaker.

 

Ownership of Lot 75 of Long Lake Park

 

102.          Petitioners, Carl Ray Mosser and Margaret M. Mosser, (hereinafter collectively referred to as “the Mossers”) were conveyed “Part of Lot 75 and part of the vacated walkway easement adjacent to Lot 75, in Plat of the Long Lake Park recorded in Plat Book 1, pages 118A and 118B in the LaGrange County Recorder’s Office…” by Richard E, Goodwin and Marjorie A, Goodwin on April 18, 2005.  The property conveyed contained “0.02 acres, more or less”.  Petitioners’ Exhibit 14.

 

103.          The Respondent Applicants do not dispute the Mossers ownership of a portion of Lot 75.  Testimony of Gary Ward.  Ward testified that the Mossers’ own approximately four feet off one side of Lot 75, which constitutes approximately 10% of the Lot.

 

104.          On July 2, 2012, after the issue surrounding the ownership of Lot 75 was raised by the Petitioners, the Wards submitted to the Department a request to revise PL-21897.  Testimony of Gary Ward and Oliger, Respondent’s Exhibit A, pgs. 17-18.

 

105.          The revision requested would proportion the ownership of Riparian Easement 75 between the Wards and the Mossers in a manner consistent with their proportionate ownership of Lot 75.  The revision would reduce the portion of Riparian Easement 75 attributable to the Wards by .67 feet.   Testimony of Gary Ward. 

 

106.            Consequently, the Wards requested that PL-21897 be revised to remove .67 feet from the mooring space on the north side of the Pier.   Id and Respondents’ Exhibit A, pgs. 17-18.

 

107.          The Wards requested revision has not been acted upon by the Department pending the outcome of the instant proceeding.

 

108.          The requested revision will not impact the previously made determinations regarding navigational safety or considerations of the rights of other landowners’ property rights.  Testimony of Whitaker, Runyon and Hebenstreit.  Similarly, the revision will not impact the environmental impacts assessment.  Testimony of Nathan Thomas. 

 

 

[1] The synopsis provided here is intended to be brief because much of it is a duplication of information contained in Findings 1 through 15 of the “Order on Petitioners’ Motion for Summary Judgment”.

[2] Special Condition numbered 7 results from the Environmental Impact Assessment completed by Nathan Thomas, the Department’s Lakes Permitting Biologist who discovered a patch of Spatterdock extending from the shoreline to 80 feet lakeward of the shoreline.  The Pier as originally proposed would have extended only 80 feet from the shoreline but in consideration of protecting the Spatterdock the Pier was extended an additional 30 feet to the approved length of 110 feet.  Because the Petitioners raise no issues in this proceeding relating to detrimental impacts to fish, wildlife or botanical resources this issue will not be discussed further.  Testimony of Nathan Thomas, Respondent’s Exhibit A, pgs 131-137.

[3] The owner of Lot 80, who would be the possessor of the single riparian easement and zone associated with that Lot, is not a party to the instant proceeding.  It should be noted that the owner of Lot 80 was initially included in the application for PL-21897 but voluntarily withdrew from participation.  Testimony of Ward.

[4] While the pontoon boats at issue here will not be required to travel across another individuals’ riparian zone, such temporary excursion into or across another person’s riparian zone is entirely appropriate.  Barbee Villa, supra.

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order have been modified to correspond with CADDNAR format.  The Final Order, Paragraphs 109 and 110, have been relocated to the “Final Order” section at the beginning of this document.]