[CITE: Day and Schramm v. McCulloch & DNR, 13 CADDNAR 184 (2013)]
[VOLUME 13, PAGE 184]
Cause #: 12-109W
Caption: Day and Schramm v. McCulloch & DNR
Administrative Law Judge: Lucas
Attorneys: Kuchmay (Claimants); Westlake (McCulloch); Wyndham (DNR)
Date: August 1, 2013
Summary judgment is granted in favor of Donald Day, Mary Lou Day, Gerald E. Schramm, and Carol A. Schramm (the “Days and Schramms”) as follows:
(1) Against Michael F. McCulloch (“McCulloch”) based on the stipulation entered with him and incorporated in the Prior Commission Decision. No fact is in material dispute. The stipulation was that the common line between the terrestrial property of Days and Schramms and the terrestrial property of McCulloch should be extended in a straight line into Jimmerson Lake. The stipulation remains in full force and effect.
(2) Against McCulloch and the Department of Natural Resources based upon res judicata (including administrative res judicata and collateral estoppel). No fact is in material dispute. The Prior Commission Decision was a final adjudication that the common line between the terrestrial property of the Days and Schramms and the terrestrial property of McCulloch should, subject to the “reasonableness” test, be extended in a straight line into Jimmerson Lake. The Recent DNR Determination does not supersede the Prior Commission Decision. The Prior Commission Decision remains in full force and effect.
(3) Information Bulletin #56 (First Amendment) existed when the Prior Commission Decision was issued. 312 IAC 11-1-4 has prospective application from January 1, 2011 and did not exist when the Prior Commission Decision was issued. No fact is in material dispute. 312 IAC 11-1-4 does not provide a basis to vitiate application of either the stipulation identified in Part (1) or the doctrine of res judicata identified in Part (2).
FINAL ORDER OF SUMMARY JUDGMENT
A. Statement of the Proceeding on Summary Judgment and Jurisdiction
1. Donald Day, Mary Lou Day, Gerald E. Schramm, and Carol A. Schramm (the “Days and Schramms”) filed a “Petition for Administrative Review” (the “petition”) with the Natural Resources Commission (the “Commission”) on June 27, 2012. The petition sought relief against Michael F. McCulloch (“McCulloch”) and the Department of Natural Resources (the “DNR”) under Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”), and rules adopted by the Commission at 312 Ind. Admin. Code § 11 to assist with implementation of the Lakes Preservation Act, for a site within Jimmerson Lake in Steuben County, Indiana.
2. The event that precipitated the petition was a DNR determination, made at the request of McCulloch, of the common riparian line between McCulloch and the Days and Schramms. The DNR determination was issued on June 27, 2011, but it was not mailed or otherwise served upon the Days and Schramms until June 12, 2012. The DNR determination concluded this common riparian line should be delineated by applying the Fourth Principle of “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (Second Amendment), Indiana Register at 20100331-IR-312100175NRA (March 31, 2010): “Where the shore is irregular, and it is impossible to run lines at right angles to the shore for a just apportionment, the lines forming the boundaries between riparian zones should be run to divide the total navigable waterfront in proportion to the length of the shores of each owner taken according to the general trend of the shore.” Petitioners’ Motion for Summary Judgment, Exhibit D. The DNR determination described in this Finding is “the Recent DNR Determination”.
3. The petition averred McCulloch was barred from seeking and applying the Recent DNR Determination as a result of (1) a stipulation entered between McCulloch and the Days and Schramms; and, alternatively, (2) the doctrine of res judicata. The petition also averred the common riparian line was delineated incorrectly in the Recent DNR Determination. The petition initiated a proceeding that is governed by 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. The Days and Schramms, McCulloch, and the DNR are collectively the “Parties”.
4. Jimmerson Lake is a “public freshwater lake” under IC § 14-26-2-3 and 312 IAC § 11-2-17 and is subject to the Lakes Preservation Act. Sowers v. DNR, 13 Caddnar 143 (2013); McCulloch v. Day & Schramm, 12 Caddnar 40 (2009); Scharlach v. Doswell, 11 Caddnar 420 (2008); Kinder v. Department of Natural Resources, 8 Caddnar 23 (1998); and Halstead v. Department of Natural Resources, 7 Caddnar 71 (1993). See, also, “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 8.
5. The Commission is the “ultimate authority” under AOPA for administrative review of a DNR licensure disposition under the Lakes Preservation Act. Sowers v. DNR at 143 (2013) and Tersigni v. Osbon & Wright, 13 Caddnar 60 (2012) citing IC § 14-10-2-4 and IC § 14-26-2-23.
6. An administrative law judge was appointed under IC § 14-10-2-2 for the proceeding. The administrative law judge conducted the initial prehearing conference in Columbia City, Indiana on August 13, 2012. The Days and Schramms appeared in person and by their attorney. McCulloch appeared in person and by his attorney. The DNR appeared by its attorney.
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7. During the initial prehearing conference, the Parties said they would explore settlement possibilities. At the same time, however, they agreed and were then ordered to file and brief summary judgment motions according to the following schedule:
(1) The Days and Schramms would file a motion for summary judgment by September 27, 2012.
(2) McCulloch and the DNR would respond to any motion filed under Clause (1) by November 13, 2012. At the same time, they would file any counter motion for summary judgment.
(3) Be December 3, 2012, the Days and Schramms would reply to a response and would respond to any counter motion filed under Clause (2).
8. IC § 4-21.5-3-23 governs summary judgment under AOPA:
(b) Except as otherwise provided in this section, an administrative law judge shall consider a motion filed under subsection (a) as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.
(c) Service of the motion and any response to the motion, including supporting affidavits, shall be performed as provided in this article.
(d) [IC § 4-21.5-3-28 and IC § 4-21.5-3-29] apply to an order granting summary judgment that disposes of all issues in a proceeding.
9. As applied under AOPA at this stage of the proceeding, Trial Rule 56 of the Indiana Rules of Trial Procedure provides:
(A) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty  days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
(B) For defending party--When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the [administrative law judge] 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.
(C) Motion and proceedings thereon. The motion and any supporting affidavits shall be served in accordance with the provisions of Rule 5. An adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits. The [administrative law judge] may conduct a hearing on the motion. However, upon motion of any party made no later than ten (10) days after the response was filed or was due, the [administrative law judge] shall conduct a hearing on the motion which shall be held not less than ten (10) days after the time for filing the response. At the time of filing the motion or response, a party shall designate to the [administrative law judge] all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the [administrative law judge] each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the designated evidentiary matter 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. 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 [administrative law judge] 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. The [administrative law judge] shall designate the issues or claims upon which it finds no genuine issue as to any material facts. 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.
(D) Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon 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.
(E) Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The [administrative law judge] may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.
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(F) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(G) Affidavits made in bad faith. Should it appear to the satisfaction of the [administrative law judge] at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the [administrative law judge] shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees….
(H) Appeal-Reversal. No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the [administrative law judge].
(I) Alteration of Time. For cause found, the [administrative law judge] may alter any time limit set forth in this rule upon motion made within the applicable time limit.
10. Summary judgment should be granted if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Auto-Owners Insurance Co. v. United Farm Bureau Insurance Co., 560 N.E.2d 459 (Ind. App. 1990). In determining if a genuine issue of material fact exists to preclude summary judgment, all doubts must be resolved against the nonmoving party. Facts set forth by a party opposing the motion must be taken as true. Terry v. Indiana State University, 666 N.E.2d 87 (Ind. App. 1996).
11. “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.” Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993). “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.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).
12. Supporting and opposing summary judgment affidavits must present admissible evidence that follows substantially the same form as though the affiant were giving testimony in court. Capital Drywall Supply, Inc. v. Jai Jagdish, Inc., 934 N.E.2d 1193 (Ind. App. 2010). “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).
13. The persons moving for summary judgment have the burden of proof with respect to summary judgment, regardless of whether they would have the burden in an evidentiary hearing. Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001). See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994). Once persons moving for summary judgment establish a lack of material fact, the persons responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue. Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991). In this proceeding, only the Days and Schramms have moved for summary judgment. They have the burden of proof.
14. An “Agreed Motion for Enlargement of Time to File Motion for Summary Judgment” was filed by the Days and Schramms to which McCulloch and the DNR consented. The administrative law judge approved the agreed motion. Consistently with the approval, the Days and Schramms filed timely the“Petitioners’ Motion for Summary Judgment” and “Petitioners’ Memorandum in Support of Motion for Summary Judgment” on October 4, 2012.
15. The DNR filed timely the “Respondent Department of Natural Resources’ Response to Claimants’ Motion for Summary Judgment” on November 13, 2012.
16. Also on November 13, 2012, the Days and Schramms and McCulloch filed their “Joint Motion for Stay” in which they indicated an expectation they could “reach a final settlement agreement in the near future.” A stay was granted, but a settlement was not reached. On January 31, 2013, the “Respondent Michael F. McCulloch’s Memorandum in Opposition to Petitioners’ Motion for Summary Judgment” was filed timely.
17. On February 11, 2013, an “Agreed Motion for Enlargement of Time to File Reply Memorandum in Support of Motion for Summary Judgment” was filed. As a consequence, the administrative law judge entered an “Order Granting Agreed Motion for Extension of Time” until March 8, 2013 for the Days and Schramms to file their reply.
18. On March 8, 2013, the Days and Schramms filed timely the “Petitioners’ Reply Memorandum in Support of Motion for Summary Judgment”.
19. On March 8, 2013, the Days and Schramms also filed a “Request for Oral Argument” on the pending summary judgment motion. The request was granted. The administrative law judge scheduled oral argument for April 19, 2013 in Columbia City.
20. The hearing (oral argument) on summary judgment was conducted as scheduled on April 19, 2013. Attorneys represented each of the parties. Following the completion of arguments, the administrative law judge observed a factual element was that the Days and Schramms secured proprietary rights which they did not enjoy when the Prior Commission Decision was issued. He asked whether a party could identify a precedent construing the possible application of res judicata or collateral estoppel in a similar context. The parties responded at the oral argument they could not. The administrative law judge then granted the parties until April 29, 2013 to supplement their pleadings to offer any applicable or instructive precedent.
21. On April 29, 2013, the Days and Schramms filed timely the “Petitioners’ Supplemental Memorandum in Support of Motion for Summary Judgment”, and McCulloch filed timely the “Respondent Michael F. McCulloch’s Supplemental Response Re: Oral Argument 4/19/2013”.
22. The Commission has jurisdiction over the subject matter and over the persons of the Parties. The proceeding is ripe for a disposition of the motion for summary judgment by the Days and Schramms and the responses by McCulloch and by DNR to the motion.
23. The Days and Schramms filed the “Petitioners’ Motion for Summary Judgment” in which they sought a favorable declaration on two issues that were potentially dispositive. If determined favorably to the Days and Schramms, either of these issues would render unnecessary an examination of the underlying facts and the Recent DNR Determination. First, the Days and Schramms urged the Recent DNR Determination should be vacated due to a prior stipulation by the Days and Schramms and by McCulloch regarding their common riparian line. Second, the Days and Schramms urged the methodology used to determine their common riparian line has already been litigated, is the subject of a final decision, and any re-litigation is barred by the doctrine of res judicata. These two issues are considered separately infra.
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B. Summary Judgment Based on Prior Stipulation by the Days and Schramms and by McCulloch
24. Any matter involving rights or obligations of parties in a proceeding may properly be made the subject of a stipulation between them, providing the stipulation is not illegal, unreasonable, or against good morals or sound public policy. 26 I.L.E., Stipulations § 3. Stipulations are binding on the parties and the courts. Once entered, they are conclusive on the parties and cannot be challenged on appeal. Office of Consumer Counselor v. Public Service Co. of Ind., Inc., 463 N.E.2d 499, 501 (Ind. App. 1984). Once approved by a court, a stipulation is binding on all involved even if a party later learns the stipulated facts are not true. 26 I.L.E. Stipulations § 10. As discussed in Finding 48 and Finding 49, the Commission acted similarly to a court when it issued the Prior Commission Decision.
25. In the hearing of the facts for the Prior Commission Decision, the administrative law judge inquired and the attorneys for McCulloch and for Day and Schramm responded:
[Administrative Law Judge:] I want to ask a question of counsel. As counsel are aware there are different methodologies for delineating riparian zones within a lake. Is there a theory or a principal being applied by either the Claimant or the Respondents in this instance other than that the appropriate delineation is to extend the common property line between the public boat landing and Lot No. 1 into the lake? [Thomas (attorney for McCulloch):] No, absolutely not. [Administrative Law Judge:] Is that the Respondents’ perspective…? [Bryan (attorney for Day and Schramm):] Yes, we would agree with that.
Petitioners Reply Memorandum in Support of Motion for Summary Judgment, Supplemental Affidavit of Donald Day (Exhibit A), ¶4, transcription of audio disc. Day added in ¶5 that this “dialog is not only reflected on the disc, but I was present during the dialogue and recall the statements made with my own personal knowledge.”
26. McCulloch asserts the gravity of the proceeding resulting in the Prior Commission Decision was whether the Days and Schramms had the right to place a pier extending from the Public Boat Landing. Delineation of the riparian boundaries of the Public Boat Landing was an ancillary matter. There was never a bargained for stipulation.
27. None of the assertions described in Finding 26 disgorges sufficient facts to show the existence of a genuine triable issue. In initiating the proceeding that resulted in the Prior Commission Decision, McCulloch might have opened more doors than he wished. But the Days and Schramms were entitled to pursue their theory of the case. In performing adjudication, the Commission was not limited to McCulloch’s theory. Part (1) through Part (3) of the Final Order in the Prior Commission Decision speaks directly to delineation of the common riparian line between the Public Boat Landing and the McCulloch Lake Lot, and to the restrictions on activities by the Days and Schramms within the resulting zones. The need to delineate riparian lines in addressing disputed riparian rights is not unusual. The other two parts of the Final Order (Part (4) and Part (5)) speak to potential modifications based on future contingencies. These were more than ancillary matters. The bargain for the stipulation was that McCulloch established a straight-line extension of the common line as the delineation of the riparian zones. This bargain was no less, and arguably was more, than received by the Days and Schramms. They did not then enjoy comparable proprietary interests to McCulloch.
28. The inquiry and responses described in Finding 25 were incorporated into the nonfinal order of the administrative law judge. Day and Schramm filed objections to the nonfinal order, and those objections were tendered to the Commission for final agency action by what is commonly called the “AOPA Committee” under 312 IAC § 3-1-12.
29. The AOPA Committee met on April 7, 2009. The attorneys for McCulloch and for Day and Schramm had previously agreed to submit their arguments in writing, rather than participating in oral arguments, and they were not present. The DNR was present by its attorney. The AOPA Committee adopted the findings and nonfinal order of the administrative law judge with technical corrections. “Minutes of AOPA Committee of the Natural Resources Commission”on Commission website at www.ai.org/nrc/files/AOPA_April_2009_Minutes.pdf.
30. The AOPA Committee issued on April 9, 2009 “Findings of Fact with Conclusions of Law and Final Order” on behalf of the Commission which included Finding 73, Finding 74, and Finding 75:
73. Boundaries between neighboring riparian owners are delineated according to principles that seek to accommodate the diverse characteristics of Indiana’s numerous public freshwater lakes. They are designed to provide riparian owners with equitable access to public waters. Zapffe v. Srbeny at page 181 and Roberts v. Beachview Properties, LLC, et al., 10 Caddnar 125 (2005).
74. At hearing, McCulloch and [Day and Schramm] agreed that the riparian zones of the Public Boat Landing and the McCulloch Lake Lot should be delineated by extending their common boundary in a straight line into Jimmerson Lake.
75. In part because the site enjoys the geographic benefits of a peninsula, this delineation is sufficient to provide the Public Boat Landing and the McCulloch Lake Lot with equitable access to public waters without apparent disruption to the enjoyment of their neighbors north and south. The delineation agreed between McCulloch and [Day and Schramm] is appropriate. Subject to the “reasonableness” test, the riparian zones of the Public Boat Landing and the McCulloch Lake Lot are properly delineated by extending their common boundary in a straight line into Jimmerson Lake.
31. The AOPA Committee’s “Findings of Fact with Conclusions of Law and Final Order” also included Final Order Part (1):
Part (1): The dividing line between the riparian zones of the Public Boat Landing and the McCulloch Lake Lot is the common boundary of those parcels extended in a straight line from the shoreline into Jimmerson Lake. The length of this riparian boundary is subject to the reasonableness test.
32. None of the Parties petitioned for judicial review of the AOPA Committee’s final agency action in the Prior Commission Decision. The time and opportunity for judicial review of the AOPA Committee’s final agency action has long passed.
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33. At the time of the Prior Commission Decision, persons other than the Parties were identified who had or might have claimed riparian interests at the site. See, particularly, Finding 68, Finding 81, and Finding 82 of the Prior Commission Decision:
68. To determine proper usage of the Public Boat Landing, a diligent effort must be made to identify the owners of each of the parcels in Leo’s Point Addition and Lury’s Cove Addition and to provide service upon them. The Board of County Commissioners of Steuben County and the State of Indiana must be served. In addition, notice by publication must be made in a newspaper of general circulation in Steuben County for service upon persons who identities cannot with reasonable effort be ascertained.
81. [Day and Schramm] have not established they are the owners of the Public Boat Landing or that the owner of the Public Boat Landing has conferred upon [Day and Schramm] the opportunity to enjoy its riparian rights….
82. In an action which includes parties as outlined in Finding 68, [Day and Schramm] may seek to establish ownership of the Public Boat Landing. As lot owners within Leo’s Point Addition or Lury’s Cove Addition, they may be determined to enjoy special rights in the management of the Public Boat Landing. The disposition may provide for a common use if needed to accommodate the interests of multiple landowners having rights to access and use the riparian zone adjacent to the Public Boat Landing. IC 14-26-2-23(e)(2)(A) and 312 IAC 11-3-4. The disposition may determine whether [Day and Schramm] have established property rights through a prescriptive easement against the owner of the Public Boat Landing and an adjacent riparian owner or owners. The disposition may identify Steuben County or the State of Indiana as the owner of the Public Boat Landing and establish a basis on which [Day and Schramm] may seek permission to place a pier or similar structure in the riparian zone adjacent to the Public Boat Landing. The disposition may provide yet another result.
In the absence of these other persons as parties to the Prior Commission Decision, neither the DNR nor the Commission on administrative review could determine their rights.
34. The DNR did not join in the stipulation described in Finding 25 and subsequently incorporated in the Prior Commission Decision. The stipulation was among Days, Schramms, and McCulloch. For the DNR to join the stipulation would have been both ineffective and misleading. The Prior Commission Decision could not adjudicate rights other than those of the Days and Schramms and McCulloch. But the DNR did not object to the stipulation, and the Commission approved the stipulation as a disposition of the riparian zones being contested by Days and Schramms and by McCulloch. With expiration of the opportunity for judicial review, the stipulation became binding upon the Days and Schramms and upon McCulloch.
35. At the time of the Prior Commission Decision, McCulloch had a proprietary interest in the McCulloch Lake Lot that allowed his exercise of riparian rights in adjacent waters of Jimmerson Lake. Days and Schramms did not have comparable rights, but they subsequently acquired these rights in the Public Boat Landing. “Petitioners’ Motion for Summary Judgment”, September 11, 2009 quit claim deed from Shirley M. Booth (Exhibit A); and March 15, 2010 “Judgment” of Steuben Circuit Court, p. 4, Cause No. 76C01-0803-PL-158 (Exhibit B). McCulloch does not contest that Days and Schramms are now interested persons. “Respondent Michael F. McCulloch’s Supplemental Response Re” Oral Argument 4/19/2013”, p. 2.
36. The common boundary and resulting riparian zones considered in the Prior Commission Decision are the same as the common boundary and resulting riparian zones considered in the Recent DNR Determination.
37. Days, Schramms, and McCulloch are bound by the terms of the stipulation entered between them and incorporated in the Prior Commission Decision. That the stipulation does not bind the DNR, or other persons who may claim an interest in the common boundary and resulting riparian zones, makes the stipulation no less binding on the Days and Schramms and upon McCulloch. The stipulation was not illegal, unreasonable, or against good morals or sound public policy.
38. The facts are not in material dispute. Days and Schramms are entitled to summary judgment against McCulloch based on the stipulation entered between them and incorporated in the Prior Commission Decision.
C. Summary Judgment Based on Final Disposition in Prior Litigation of the Common Riparian Line, and Re-litigation is Barred by Doctrine of Res Judicata
39. The doctrine of res judicata seeks to prevent repetitive litigation of the same dispute. Richter v. Asbestos Insulation & Roofing, 790 N.E.2d 1000, 1002 (Ind. App. 2003); 22 Ind. Prac., Civil Trial Practice §36.5.
40. The doctrine of res judicata bars litigating a claim after a final judgment is rendered in a prior action involving the same claim between the same parties or their privies. The doctrine applies if these four requirements are met:
(1) The former judgment was rendered by a court of competent jurisdiction.
(2) The former judgment was rendered on the merits.
(3) The matter at issue in the current action was, or could have been, determined in the prior action.
(4) The controversy adjudicated in the prior action was between the same parties to the current action or their privies.
Richter v. Asbestos Insulation & Roofing at 1002.
41. “There is no doubt that the general principle of res judicata and collateral estoppel apply to [Commission] adjudications.” Dean and Marilyn Ray v. Lukis, et al., 12 Caddnar 69, 72 (2009). Administrative res judicata is applicable when a “particular issue is adjudicated and then is put into issue in a subsequent suit on a different cause of action between the same parties or those in privity with them.” South Bend Federation of Teachers v. National Education Association South Bend, 389 N.E.2d 23, 32 (Ind. App. 1979).
42. In determining the applicability of administrative res judicata, elements parallel to the four elements referenced in Finding 40 are applied:
We examine whether (1) the issues sought to be estopped were in the statutory jurisdiction of the agency; (2) the agency was acting in a judicial capacity; (3) both parties had a fair opportunity to litigate the issues: and (4) the decision of the administrative tribunal could be appealed to a judicial tribunal.
Dean and Marilyn Ray v. Lukis, et al. at 72 citing Weiss v. Indiana Family and Social Services Administration, Division of Disability, Aging and Rehabilitative Services, 741 N.E.2d 398, 401 (Ind. App. 2000).
43. Citing 312 IAC 11-1-3, McCulloch urges “there is room to argue that the Commission does not have original jurisdiction over the determination of riparian boundaries…. [The] DNR is charged with making an initial determination when there is a dispute between riparian owners concerning the proper delineation of a riparian boundary.”
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44. In the Prior Commission Decision, any of the parties could have asserted 312 IAC 11-1-3 was the only process appropriate to achieving a final adjudication. No one did. Even if not presented to the administrative law judge, any of the parties could have presented objections to the AOPA Committee urging the process had been applied inappropriately. No one did. Although failure to exhaust administrative remedies might have been asserted by another party, any party could even have raised the issue on judicial review. No one did. Assuming for purposes of summary judgment that 312 IAC 11-1-3 defines agency process, the rule does not deprive the Commission of jurisdiction. The time has passed to complain of a procedural error in the Prior Commission Decision.
45. The Court of Appeals of Indiana recently considered similar jurisdictional arguments in Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d 1068 (Ind. App. 2012), an appeal that resulted directly from a Commission disposition in Meyers Subdivision POA v. DNR and Kranz, 12 Caddnar 282 (2011). In an administrative proceeding that pre-dated the proceeding on appeal, the Commission decided several issues on a public freshwater lake pertaining to a riparian rights dispute among neighboring riparian owners and the holders of an off-lake easement. Among these were the rights associated with the easement and the determination of riparian zones within the lake. The Commission’s decision was made without a prior DNR licensure determination. Adochio, et al. v. Kranz, et al., 11 Caddnar 400 (2008).
46. In Kranz v. Meyers Subdivision Property Owners, the Kranzes challenged both Meyers Subdivision POA and the earlier adjudication in Adochio. The court agreed with the Kranzes that subject matter jurisdiction cannot be waived, and courts at all levels are required to consider the issue sua sponte. But the court found under the Lakes Preservation Act the Commission had the requisite jurisdiction and expertise to make its decisions in Meyers Subdivision POA and in Adochio.
47. The first element for administrative res judicata is satisfied. The issues sought to be estopped are within the jurisdiction of the Commission.
48. In a proceeding under AOPA to apply the Lakes Preservation Act, the Commission is authorized to:
(1) administer oaths and certify to official actions; (2) require information from any person for purposes of Title 14; (3) issue subpoenas; (4) require the attendance of witnesses; and (5) examine witnesses under oath. Ind. Code § 14-11-1-3. The proceedings before [a Commission administrative law judge are] substantially similar to proceedings before a court.
49. The second element of administrative res judicata is satisfied. The Commission was acting in a judicial capacity.
50. The parties to the proceeding that resulted in the Prior Commission Decision were each represented by attorneys. The parties engaged in prehearing activities, and a hearing of the facts was conducted under AOPA. Objections were filed, briefed, and presented to the AOPA Committee prior to a final agency action.
51. The third element of administrative res judicata is satisfied. The parties had a fair opportunity to litigate the issues. Included in the opportunity was a disposition of the matter currently at issue: the delineation of the common boundary and resulting riparian zones between the lands owned by the Days and Schramms and the lands owned by McCulloch. The Days and Schramms and the McCullochs stipulated to the delineation. DNR did not enter the stipulation but was a party and had the opportunity to assert a delineation other than extending the common boundary in a straight line would have been preferable.
52. AOPA provides an opportunity for judicial review of a final agency decision by a Circuit Court or a Superior Court. IC 4-21.5-5. A “Notice of Final Order of the Natural Resources Commission” was issued and served on the parties after the AOPA Committee rendered the Prior Commission Decision. The notice provided guidance for seeking judicial review. Affidavit of Donald Day, Exhibit C.
53. The fourth element of administrative res judicata is satisfied. The Prior Commission Decision could be appealed to a judicial tribunal.
54. As noted in Finding 20, a factual element changed after the Prior Commission Decision was issued and before the Recent DNR Determination was made. The Days and McCulloch obtained title to the Public Boat Landing. Following oral argument on summary judgment, the administrative law judge sought additional guidance from the Parties concerning ramifications to res judicata or collateral estoppel as a consequence of the change. The attorneys for Days and Schramms and for McCulloch provided instructive briefs. After reviewing them, the Days and Schramms are found to be persuasive, and their position is adopted:
…The issue of title is a distinction without a difference. The issue of proper delineation of the riparian zones was actually litigated, was the subject of a stipulation, was made a final rule, and was not appealed. Moreover, the parties, and their interests for purposes of res judicata, were identical….
The Days and Schramms cited Moxley v. Indiana National Bank, 443 N.E.2d 374 (Ind. App. 1983):
In that case, a party argued against res judicata, claiming the parties were reversed in the subsequent action (i.e., a plaintiff in one and a defendant in the other). Thus, it was argued, the interests were different the second time around. The Indiana Court of Appeals stated that argument was specious, and also referred to the contention as novel and illogical. Id. at 380. The Moxley Court also cited to an Indiana Supreme Court decision discussing the concept of parties within the context of res judicata, and focused on whether the parties are in the same antagonistic relation. Id.
Here, the parties were in the same antagonist relation. The Days and Schrams contended they owned the Public Boat Landing, and had riparian rights associated with the Public Boat Landing. McCulloch disputed those contentions, tried the case, and the parties had the same antagonistic relation on the precise issue before the Commission then, as they do now.
The fact that the Days and Schramms subsequently acquired deeds conveying title to the Public Boat Landing does not change the rulings that were made in the [Prior Commission Decision], does nothing to alter the antagonistic relation the parties possessed both then and now….
55. The parties in the Prior Commission Decision are the same as the Parties here. The Days and Schramms have the same antagonistic relationship with McCulloch. The fourth element of res judicata set forth in Finding 40 is also satisfied.
56. The Days and Schramms have satisfied all elements of the doctrine of res judicata, including those applicable to administrative res judicata or collateral estoppel, pertaining to the continued viability and applicability to the Parties of the Prior Commission Decision.
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D. Commission Nonrule Policy Document for Delineation of Riparian Lines
57. In the “Respondent Department of Natural Resources’ Response to Claimants’ Motion for Summary Judgment”, the DNR opposed the “Motion for Summary Judgment” based on the position that the Recent DNR Determination is a correct application of Information Bulletin #56. “However, the [DNR] will accept the Administrative Law Judge’s ruling on the Motion for Summary Judgment should he rule in favor of the [Days and Schramms] on this Motion.”
58. In “Respondent Michael F. McCulloch’s Memorandum in Opposition to Petitioners’ Motion for Summary Judgment”, he urged:
Regarding the delineation of riparian boundaries, effective January 1, 2011, “If a determination of riparian boundaries is reasonably required for the performance of functions under IC 14-26-2 [and 312 IAC 11, the DNR] (or the [C]omission on administrative review) shall consider as guidance ‘Riparian Zones within Public Freshwater Lakes and Navigable Waters’, Information Bulletin #56 (Second Amendment) as published by the Legislative Services Agency at 20100331-IR-312001175NRA (March 31, 2010). 312 IAC 11-1-4 (emphasis added [by McCulloch]). In November 2009, an almost identical provision was promulgated and made applicable to riparian disputes arising under IC 14-29-1 (which concerns navigable waters). See 312 IAC 6-1-4. However, as noted above, it was not mandatory that Information Bulletin #56 be considered when making a determination of riparian boundary under IC 14-26-2 (concerning public freshwater lakes) until 2011.
Although an early version of Bulletin #56 was in existence at the time the [Prior Commission Decisions] was made, it was not yet mandatory that the DNR or the Commission consider Bulletin #56 or its principles when making determinations as to the proper delineation of riparian boundaries. The 2009 enactment of provisions in 312 IAC 6-1-4 as well as the 2011 delineation of riparian boundaries…evinces a desire by the State that all riparian boundaries be delineated in accordance with Bulletin #56. It cannot be said that such a change in the law or the accompanying necessary change in the legal climate concerning the issue would not have dictated a different outcome in the [Prior Commission Decision]. Such a change in the law is arguably sufficient, in and of itself, to defeat the application of issue preclusion. Such a change in the law is also equally sufficient to defeat the application of claim preclusion (res judicata). As the U.S. Supreme Court noted in Agostini v. Felton, “we do no violence to the doctrine of stare decisis when we recognize bona fide changes in our decisional law. And in those circumstances, we do no violence to the legitimacy we derive from reliance on that doctrine.” Agostini v. Felton, 521 U.W. 203, 239 (1997).
59. A review of the application of Information Bulletin #56 to this riparian rights dispute is required to develop a complete agency record.
60. On January 16, 2008, the Commission caused posting in the Indiana Register of a nonrule policy document “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56, at www.in.gov/legislative/iac/20080116-IR-312080013NRA.xml.html. The scope of the nonrule policy document included guidance for determining the boundaries of riparian zones within public freshwater lakes. Principles were identified in the guidance for helping to determine the boundaries along varying shoreline configurations.
61. Nonrule policy documents are governed by IC § 4-22-7-7(a)(5). They may be used in governing an agency’s external affairs but do not have the effect of law. Paris v. DNR, 12 Caddnar 323 (2011).
62. On January 1, 2009, the Commission caused posting in the Indiana Register of “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (First Amendment), at http://www.in.gov/legislative/iac/20081210-IR-312080891NRA.xml.html. The First Amendment added a new First Principle for helping determine riparian boundaries and renumbered subsequent Principles. The First Principle incorporated Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008) which ruled that if the parties to a dispute enter a document which specifies their riparian rights, the document controls.
63. The Prior Commission Decision was issued on April 14, 2009. Affidavit of Donald Day, Exhibit C. “Riparian Zones within Public Freshwater Lakes and Navigable Waters” (First Amendment) was then in effect as a nonrule policy document.
64. On March 31, 2010, the Commission caused posting in the Indiana Register of “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (Second Amendment), at www.in.gov/legislative/iac/20100331-IR-312100175NRA.xml.pdf. The Second Amendment did not make changes to the First Amendment that are material to this proceeding.
65. Effective January 1, 2011, 312 IAC 11-1-4 was added as follows:
Sec. 4. If a determination of riparian boundaries is reasonably required for the performance of functions under IC 14-26-2 [and 312 IAC 11, the DNR] (or the [C]omission on administrative review) shall consider as guidance “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (Second Amendment) as published by the Legislative Services Agency at 20100331-IR-312100175NRA (March 31, 2010).
66. McCulloch is persuasive the adoption of 312 IAC 11-1-4 evinces an intention that Information Bulletin #56 (Second Amendment) be considered in a disposition of riparian zones within public freshwater lakes. For purposes of the “Motion for Summary Judgment” by Days and Schramms, the DNR’s contention is taken as persuasive that the Recent DNR Decision would be a correct application of Information Bulletin #56. The development and amendments of Information Bulletin #56, as well as the adoption of 312 IAC 11-1-4, reflect increasing sophistication in the treatment of riparian boundary disputes. Yet the Recent DNR Decision cannot properly supersede the Prior Commission Decision for two reasons.
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67. First, no material fact is offered upon which to conclude the administrative law judge and the AOPA Committee did not consider Information Bulletin #56 (First Amendment) when determining to issue the Prior Commission Decision. The First Amendment and the Second Amendment do not differ in their analyses for determining riparian boundaries. If anything, the findings in the Prior Commission Decision that are restated here in Finding 30 indicate Information Bulletin #56 was considered. Only upon conjecture can it be otherwise concluded. A material issue of fact is not placed in dispute.
68. Second, rules typically have only prospective application. Rademaker v. Wells, 12 Caddnar 224 (2010). A structure lawfully placed within a public freshwater lake before the effective date of a rule can be maintained as a lawful nonconforming use. Despite increasing sophistication in the DNR’s and the Commission’s treatment of riparian rights disputes, the doctrine of res judicata prohibits invalidation of a prior adjudication. Rekeweg v. Nix, 12 Caddnar 75, 81 (2009). Absent strong and compelling reasons, rules are given only prospective application. Brown and Zeller, et al. v. DNR, 9 Caddnar 136, 142 (2004) citing Mann v. State Dept. of Highways, 541 N.E.2d 929, 936 (Ind. 1984).
69. Numerous legal and practical reasons exist for not giving rules retroactive effect. Reliance upon historic dispositions is among them. If 312 IAC 11-1-4 were given retroactive effect, the result would be the repudiation of all riparian rights decisions entered by the Commission through adjudication or by agreement before January 1, 2011. There is no strong or compelling reason for the result, and there is no basis to conclude the Commission intended the result with its adoption of 312 IAC 11-1-4.
70. Information Bulletin #56 (First Amendment) applied when the Prior Commission Decision was issued. 312 IAC 11-1-4 did not repudiate the Prior Commission Decision and provides no factual basis for denying the “Motion for Summary Judgment” sought by the Days and Schramms.
 None of the Parties have sought summary judgment with respect to the correctness of the Recent DNR Determination. As a result, the correctness of the Recent DNR Determination is not now before the Commission.
 As provided in IC § 4-21.5-3-32, an agency is to index final orders and may rely upon indexed orders as precedent. In 1988 the Commission adopted Caddnar as its index of agency decisions.
 McCulloch v. Day & Schramm, 12 Caddnar 40 (2009) is also known as Michael McCulloch v. Donald Day and Gerald Schramm and the Department of Natural Resources, Administrative Cause No. 08-044W, and is considered later in this proceeding for the merits of the summary judgment sought by the Days and Schramms. The decision is referenced here as the “Prior Commission Decision”.
 In their briefs, Day and Schramm characterized these as Findings of the administrative law judge. With the historic progression of the Prior Commission Decision, they are presumably the same as the Findings offered in the administrative law judge’s nonfinal order. But the Findings are those of the AOPA Committee rendered as the final action of the agency’s ultimate authority, following the consideration of objections, and with the presence of the DNR’s attorney.
 At issue here is not the development of decisional law by the Supreme Court but rather the application of an agency rule and nonrule policy document. Agostini is inapplicable.
 It may be noteworthy to underscore this Order does not review the merits of the Recent DNR Decision. For consideration is whether a stipulation or res judicata forecloses a new disposition of the common riparian boundary in the lake adjacent to the property owned by the Days and Schramms and the property owned by McClure. Also, more than one interpretation for determining a riparian boundary may be determined appropriate by the court. Illustrative is Daisy Farm Limited Partnership v. Morrolf, 886 N.E.2d 604, 608 (Ind. App. 2008).