CADDNAR

[CITE: Sommers v. LaPorte Co. Conven. & Visitors Bur., 13 CADDNAR 169 (2013)]

 

 

[VOLUME 13, PAGE 169]

 

 

Cause #13-068L

Caption: Sommers v. LaPorte Co. Conven. & Visitors Bur.

Administrative Law Judge: Lucas

Attorneys: pro se (Sommers); Bergerson (LaPorte); Wells (DNR)

Date: July 3, 2013

 

 

FINAL ORDER

 

Conditioning of the subject permit is modified, consolidated, and enumerated to read as follows:

 

(1) District 10 of the DNR’s Division of Law Enforcement may modify or revoke the permit if severe weather or hazardous conditions threaten public safety.

 

(2) The Bureau shall maintain possession of such permit at or near the event location and shall present the permit to any conservation officer for inspection upon request.

 

(3) The Bureau shall work with the LaPorte City Parks Department and race officials in defining safety procedures for the general public (spectators) and riparian property owners.

 

(4) To help determine any significant adverse effects on fish, wildlife, or botanical resources, the DNR’s Division of Fish and Wildlife shall assess the shoreline, vegetation, water quality, and any other concerns (a) prior to the event; (b) during the event; and (c) after the event. The assessment shall include consideration of impacts to waterfowl and shorebirds.  Upon a reasonable request by the DNR, the Bureau shall assist with the assessment.  By December 31, 2013, the Division of Fish and Wildlife shall prepare a written report of its assessment.  As soon as practicable after preparation, the report shall be submitted to the Advisory Council for review and consideration during a regular meeting.  

 

(5) The Bureau shall give District 10 of the Division advance notice of planned meetings in order for an Indiana Conservation Officer to be present at those meetings.

 

(6) A minimum of 200 feet from shoreline safety zone shall be established on the course that will not be entered during the race/heats to include event boats.  Event organizers shall place buoys to clearly and accurately mark the safety zone.  Approval must be obtained from District 10 of the Division of Law Enforcement for the location and form of the buoys in advance of the conduct of the race (and any heats).  No watercraft shall be operated, moored, beached, or anchored within the safety zone with the exception of work/safety boats.  Activity within the safety zone by these boats shall be limited to only what is necessary.  All watercraft operating within the safety zone shall observe idle speed per IC 14-15-3-13. 

 

IC 14-8-2-129 “Idle speed” definition;

Sec. 129. “Idle speed”, for purposes of IC 14-15-3-17, means the slowest possible speed, not exceeding five (5) miles per hour, which maintains steerage so that the wake or wash created by the watercraft is minimal.

 

Deviations from idle speed within the safety zone shall only occur in emergency situations where public safety, or the safety of those involved in the event exists.

 

(7) No public access for recreational watercraft activity shall be allowed on Stone Lake during the timeframe of this event, to include the 200’ safety zone.  This restriction into or upon Stone Lake includes ramps, waterways, and riparian owners.  Event organizers shall be responsible for notification, closure, monitoring, and clearing of these areas prior to scheduled events.

 

(8) All work/safety boats shall obey the 10 mph speed zone already in effect on Stone Lake unless there would exist an emergency situation that necessitates otherwise.

 

(9) All staging of the event boats shall occur in the beach area to avoid shoreline and vegetation disturbance.

 

DNR issuance of the subject permit to the Bureau is otherwise affirmed. 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Proceeding and Jurisdiction

 

1. Between April 1 and April 10, 2013, ten separate letters were filed with the Natural Resources Commission (the “Commission”) seeking administrative review of a “Permit for Recreational Event on Public Water/Ice” (the “subject permit”) issued by the Department of Natural Resources (the “DNR”), Division of Law Enforcement, to the LaPorte County Convention & Visitors Bureau (the “Bureau”).  The ten letters were by Linda Cathcart (“Cathcart”), Administrative Cause No. 13-067L; Marilyn and Edward Sommers (the “Sommerses”), Administrative Cause No. 13-068L; Roy Langford and Jane A. Langford (collectively the “Langfords”), Administrative Nos. 13-169L and 170L; Barbara J. Hooper (“Hooper”), Administrative Cause No. 13-071L; Judith Swanson (“Swanson”), Administrative Cause No. 13-072L; Lorna M. Cooksey (“Cooksey”), Administrative Cause No. 13-075L; Patricia M. Worthington (“Worthington”), Administrative Cause No. 13-076L; Louise M. Gray (“Gray”), Administrative Cause No. 13-077L; and, David M. Johnson (“Johnson”), Administrative Cause No. 13-078L.  Cathcart, the Sommerses, the Langfords, Hooper, Swanson, Cooksey, Worthington, Gray, and Johnson are collectively the “Original Claimants”.

 

2. In the subject permit, the DNR issued the Bureau “a permit to conduct [a motorboat race] on public water…[of] Stone Lake, LaPorte County [on] May 31, 2013, June 1, 2013, [and] June 2, 2013 from 9:00pm – 5:00pm.”  The subject permit was made subject to the following conditions:

 

[VOLUME 13, PAGE 170]

 

 

 

 

 

 

 

IC 14-8-2-129 “Idle speed” definition;

Sec. 129. “Idle speed”, for purposes of IC 14-15-3-17, means the slowest possible speed, not exceeding five (5) miles per hour, which maintains steerage so that the wake or wash created by the watercraft is minimal.

 

Deviations from idle speed within the safety zone shall only occur in emergency situations where public safety, or the safety of those involved in the event exists.

 

 

 

 

March 28, 2013 letter by Major Michael L. Portteus of the Division and Permit for Recreational Event on Public Water/Ice attached as Prehearing Exhibit One and Prehearing Exhibit Two, respectively, to “Report of Initial Simultaneous Prehearing Conferences and Notice of Hearing” (April 29, 2013) and incorporated by reference.

 

3. The ten separate letters initiated ten proceedings under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”), and rules adopted by the Commission at 312 IAC 3-1 to assist with implementation of AOPA, as described in Finding 1.  The same administrative law judge was appointed under 312 IAC 3-1-3(b) to conduct each of the ten proceedings.

 

4. The administrative law judge issued a “Notice of Initial Prehearing Conference” for the ten proceedings to advise the Original Claimants, the Bureau, and the DNR that prehearing conferences would be conducted simultaneously on April 25, 2013 at the DNR Lake Michigan Headquarters in Michigan City, LaPorte County, Indiana.

 

5. The initial prehearing conferences were conducted as scheduled on April 25, 2013.  The Sommerses, the Langfords, Hooper, and Worthington (collectively, the “Claimants”) appeared in person.[2]  The Bureau and the DNR appeared through their respective attorneys, and the attorneys were accompanied by representatives of their clients.  The Claimants, the Bureau, and the DNR are collectively the “Parties”.  During the initial prehearing conferences, the Parties agreed to consolidate the proceedings initiated by the Claimants into a single proceeding.  The administrative law judge caused the consolidation under Administrative Cause No. 13-068L as captioned.

 

6. During the initial prehearing conferences, the Parties stipulated a minimum water depth was not a condition for the race course authorized by the subject permit.  “Report of Initial Simultaneous Prehearing Conferences and Notice of Hearing” (April 29, 2013), p. 3.

 

7.  During the initial prehearing conferences, the Claimants sought and the Bureau subsequently provided an aerial depiction of the race course as set forth:

 

 

[VOLUME 13, PAGE 171]

 

During the conference, the Parties expressed an understanding the depiction was subject to adjustments the DNR might require at the time of the intended race (including any heats) for compliance with conditions of the subject permit or as otherwise supportive of public safety.  The aerial depiction was admitted into evidence, without objection, at the hearing of the facts.  Respondent Bureau Exhibit A.

 

8. Boat races on public waters are subject to IC 14-15-5.  This statutory chapter provides in pertinent parts as follows:

 

IC 14-15-5-1:
     Sec. 1. A person may not sponsor, conduct, or hold a boat race or water ski event upon public water, including ice, unless a permit for a boat race or water ski event has been issued by the department. A person who has been issued a permit may not violate or fail to comply with a condition upon which the permit has been issued.

IC 14-15-5-2:


     Sec. 2. Before issuing a permit for a motorboat race or water ski event, the department shall investigate as necessary. If the department finds that a motorboat race or water ski event can be conducted and held with safety and without undue interference with the lawful use of public water by other persons, the department shall issue the permit with the conditions the department finds necessary to accomplish these objectives. The department shall:
        (1) state the conditions in; or
        (2) attach the conditions to;
the permit.

 

The Commission adopted rules at 312 IAC 5-3 to assist with implementation of IC 14-15-5.

 

9. Stone Lake in LaPorte County is a “public freshwater lake” and subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted at 312 IAC 11 to assist with implementation of the Lakes Preservation Act.  Listing of Public Freshwater Lakes, Information Bulletin #61 (Second Amendment), Ind. Reg., at 20110601-IR-312110313NRA (June 1, 2011), p. 5.  Testimony of Lt. Jerry Shepherd.

 

10. A public freshwater lake is “public water” under IC 14-8-2-226.  Public waters are subject to IC 14-15 (sometimes referred to as the “Watercraft Operations Act”).  IC 14-15-5 is a chapter within the Watercraft Operations Act, and a motorboat race is subject to IC 14-15-5-1 and IC 14-15-5-2.

 

11. The Indiana General Assembly has expressed an intention that boating operations on public freshwater lakes be managed to implement the purposes of both the Lakes Preservation Act and the Watercraft Operations Act.  IC 14-26-2-23(c)(4).

 

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

 

13. The subject permit for a motorboat race on Stone Lake is a license that is subject to AOPA.  The Commission is the DNR’s “ultimate authority” under IC 14-10-2-3 and AOPA for the Watercraft Operations Act.  Taylor v. DNR, 12 Caddnar 328, 329 (2011) and French v. Abad, et al. 9 Caddnar 176 (2004).[3]  The Commission is also the ultimate authority for licensure under the Lakes Preservation Act.  Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d 1068, 1075 (Ind. App. 2012).

  

14. The Commission has jurisdiction over the subject matter and jurisdiction over the persons of the Parties for administrative review of the subject permit.  A hearing of the facts was conducted as scheduled in Michigan City, Indiana on May 20, 2013.  The proceeding is ripe for disposition.

 

B. Nature of Administrative Review

 

15. At each stage of a proceeding, the person requesting that an agency take action has the burden of persuasion and the burden of going forward (sometimes collectively referred to as the “burden of proof”).  IC 4-21.5-3-14(c) and Indiana DNR v. Krantz Bros. Const., 581 N.E.2d 935, 938 (Ind. App. 1991).  The Claimants have the burden of proof to demonstrate the Commission should find the DNR issued the subject permit to the Bureau incorrectly.

 

16. Typically, the measure for meeting the burden of proof under AOPA is by a “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Island Prop. Owners Ass’n., Inc. v. Clemens and DNR, 12 Caddnar 56, 58 (2009). “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994).  The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true.  Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).  The Claimants must demonstrate they have met the burden of proof by a preponderance of the evidence.

 

17. “[A]n administrative agency does not have the power to make decisions properly committed to another agency.  An administrative agency has only those powers that the legislature has conferred to it, and unless [there exists] the grant of powers and authority in the statute…, no power exists.” [Court citations omitted.] Musgrave v. Squaw Creek Coal Company, 964 N.E.2d 891, 902 (Ind. App. 2012).  An Indiana state administrative agency has only those powers conferred to it by the Indiana General Assembly.  Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers.  Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995).  The Claimants must demonstrate the DNR (or the Commission on administrative review) has statutory authority to address any claimed grievance arising from issuance of the subject permit.

 

18. An administrative law judge conducts a proceeding de novo.  IC 4-21.5-3-14(d).  Rather than deferring to a DNR permitting determination, de novo review requires an administrative law judge to consider and apply proper weight to the evidence.  Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 Caddnar 317, 318 (2011) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).  The administrative law judge must consider and apply proper weight to the evidence rather than deferring to the initial determination by the DNR to issue the subject permit.

 

[VOLUME 13, PAGE 172]

 

19. A de novo hearing under AOPA is designed to provide a thorough examination of the evidence and to assure affected persons with due process.  Ordinarily, a properly conducted de novo review cures a deficiency alleged in a licensure process, including a deficiency alleged concerning a pre-licensure public hearing.  Wawasee Property Owners, et al. v. Wawasee Real Estate & DNR, 11 Caddnar 88, 94 (2007) and Pendleton v. DNR and Campbell, 6 Caddnar 145 (1993).

 

20. In this proceeding, the Claimants identified technical or clerical errors in the newspaper notification for the subject permit, including the opportunity to petition for a pre-licensure public hearing.  They also expressed displeasure with the site originally suggested for the public hearing.  A petition was received and approved by the DNR’s Division of Law Enforcement, a public hearing was conducted in LaPorte County, and the site was relocated to one more satisfactory to the Claimants.  There was no showing the Claimants, or persons other than the Claimants, were prejudiced by errors in the newspaper publication.  The de novo review, including the hearing conducted on May 20, 2013, cures any deficiency in the newspaper notification.

 

21. Under IC 4-22-1 [repealed] (sometimes referred to as the “Administrative Adjudication Act” or “AAA”) which formerly governed administrative proceedings of the Commission and many other state agencies, following a hearing of the facts an administrative law judge typically made proposed findings with a recommended order that was tendered to the Commission for approval or disapproval.  See, particularly, IC 4-22-1-12 [repealed].  Illustrative is DNR v. David Stevenson, et al., 1 Caddnar 83 (1986).  The AAA was repealed and superseded by AOPA.  Pub. Law 18-1986 effective July 1, 1987.

 

22. With the enactment of AOPA, an administrative law judge either issues findings of fact and conclusions of law with a final order that is subject to judicial review (IC 4-21.5-3-28), or an administrative law judge issues findings of fact and conclusions of law with a nonfinal order (IC 4-21.5-3-29).  If the administrative law judges issues a nonfinal order, the disposition is subject to a party filing objections and consideration of those objections by the agency’s “ultimate authority”.  Action by the ultimate authority is then subject to judicial review.

 

23. For this proceeding, the administrative law judge is not the ultimate authority and issues findings of fact and conclusions of law with a nonfinal order.  IC 14-10-2-3 and 312 IAC 3-1-2.  Although a nonfinal order is subject to modification by the Commission’s ultimate authority, the administrative law judge’s disposition is an order under AOPA and not a recommendation as applied under the former AAA.

 

24. For a proceeding in which the administrative law judge is not the ultimate authority, by rule the Commission delegated review of objections to a committee of its members that is commonly referred to as the “AOPA Committee”.  312 IAC 3-1-12.  With the narrow timeframes in this proceeding, the Parties requested the AOPA Committee to authorize that the administrative law judge’s disposition, following a hearing of the facts, bypass its review and become subject to immediate judicial review.  The AOPA Committee considered the request during a public meeting held in Anderson, Indiana on May 14, 2013.  Following discussions that also included policy and practical concerns, the AOPA Committee denied the request on the grounds it lacked statutory authority to grant the relief sought.  “Order by AOPA Committee Denying Request by the Parties to Cause Disposition by the Administrative Law Judge to be Subject to Immediate Judicial Review” (May 15, 2013).

 

C. Stone Lake as a Small Lake

 

25. A survey was not conducted for this proceeding to determine the acreage of Stone Lake. The application for the subject permit estimates that Stone Lake covers 170 acres.  Respondent DNR Exhibit I.  Lieutenant Jerry Shepherd testified the estimate was erroneous, and Stone Lake instead covers about 140 acres.  The Claimants offered documentation to support a conclusion Stone Lake covers about 149 acres.  Claimants Exhibit 1.  Although the evidence does not support a precise determination, the preponderance of the evidence is Stone Lake covers between 140 and 149 acres.

 

26. Since Stone Lake contains fewer than 300 acres, Stone Lake is a “small lake” as defined in the Watercraft Operations Act at IC 14-15-3-1.  A person is prohibited ordinarily from operating a motorboat on a small lake at a speed greater than ten miles per hour.  IC 14-15-3-10.

 

27. Since Stone Lake contains more than 70 acres, the Commission may, by rule adopted under IC 14-15-3-11, exempt the lake from the ten-mile-per-hour speed limit.  Rules exempting qualified small lakes from the ten-mile-per-hour speed limit are codified at 312 IAC 5-11.  Stone Lake is not included among small lakes exempted by rule.

 

28. The Indiana General Assembly has also exempted qualified boat races from the restrictions generally placed on the operation of boats on small lakes:

 

IC 14-15-3-13
     Sec. 13. Notwithstanding any of the provisions of [IC 14-15-3], a person operating a boat competing in and during:
        (1) a boat race;
        (2) a water ski event; or
        (3) any other organized boating activity;
over a fixed and marked course for which a permit has been issued by the [DNR] under [the Watercraft Operations Act] may attempt to attain any speed of which the boat is capable.

 

Although the DNR may properly consider the size of a lake in evaluating a permit for a motorboat race, status as a small lake is not a basis for denial of a permit.  Its status as a small lake does not disqualify Stone Lake from approval for the subject permit.

 

 

D. Stone Lake Water Depth

 

29. Dr. Edward Sommers and other Claimants expressed concerns for the adequacy of water depths at Stone Lake for the conduct of the boat race and heats, both with respect to safety and the potential for environmental harm.  During the initial prehearing conference, the Parties stipulated a minimum water depth was not made a condition for implementation of the subject permit.

 

30. Lieutenant Jerry Shepherd testified he believed the site was reasonably safe for the conduct of a boat race.  Christopher Fairchild testified the purposes of the American Power Boat Association were to promote boat racing and boating safety.  He added that from examination of Stone Lake he believed the depth was adequate for conduct of a safe race.

 

31. Jack Arnett, the Bureau’s Executive Director, testified he navigated his boat along the racecourse using a global positioning system and a depth finder to determine water depths.  Included were several passes taken from several angles over where a sandbar submerges on the southeast portion of the lake and angles northwesterly.  He testified depths were typically nine to eleven feet and never less than eight feet.  Jason Miller accompanied Arnett, and Miller confirmed the accuracy of his testimony.

 

32. On rebuttal, Barbara Hooper testified she paid the owner of a new boat $10 to take her on a ride around the lake.  The boat’s depth finder indicated a depth of four feet.

 

33. Arnett, Miller, and Hooper were convincing witnesses who appeared to testify in good faith.  Arnett’s conclusions were perhaps most convincing.  He was familiar with the equipment used to determine depth and controlled the positioning of his boat.  He made repeated passes and examined different angles to make his determinations.

 

[VOLUME 13, PAGE 173]

 

 

34. Just as importantly, no standard minimum was offered into evidence for what depth is needed for boat racing.  Motorboat races would be expected to carry the potential for injury.  Competitors accept a risk when they choose to race. 

 

35. A sufficient basis is not provided to set aside Lt. Shepherd’s original assessment that the site was reasonably safe for the conduct of a boat race.

 

36. Over the objections of the Respondents, the administrative law judge admitted Claimants Exhibit 5.  The exhibit was captioned AGENDA ITEM #16, Information Item: A review of environmental impacts from high speed boats on Indiana’s public freshwater lakes; Administrative Cause No. 10-029V”.  Although the foundation offered for Claimants Exhibit 5 was limited, it appeared to be a Commission document prepared in the ordinary course of business.  The administrative law judge stated he would review the document and determine if it was as it appeared.  Further review indicated Claimants Exhibit 5 is an agenda item from the Commission’s September 18, 2012.  The item is accessible from the Commission’s website at www.in.gov/nrc/ and was prepared in the conduct of the Commission’s ordinary business.  As indicated on its face, the Item #16 was not for Commission action.  No action was taken.  The opening sentence of the conclusion to Item #16 is instructive: “The environmental impacts of boats on public freshwater lakes is a complex process that is dependent upon a variety of factors.”  Claimants Exhibit 5 might suggest research is warranted, but it offers no Commission conclusions or insights that assist with administrative review of the subject permit.

 

37. Environmental harm can result from the operation of motorboats on public freshwater lakes, but the evidence does not support a conclusion the depth of Stone Lake poses a particular problem.  Although a standard minimum water depth may be warranted to avoid environmental harm in the performance of a Formula 1 Powerboat race on a public freshwater lake, the record in this proceeding is insufficient to establish that depth. 

 

E. Safety Zone within 200 Feet of Shoreline

 

38. As applied to Stone Lake and most other Indiana lakes, statutory restrictions apply at IC 14-15-3-17 for the operation of motorboats within 200 feet of the shoreline:

 

     (a) A person operating a motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake or channel of the lake at a place or point where the lake or channel is at least five hundred (500) feet in width, except for the purpose of trolling or for the purpose of approaching or leaving a dock, pier, or wharf or the shore of the lake or channel.
     (b) Except as provided in subsection (c), a person operating a motorboat may not approach or pass within two hundred (200) feet of the shore line of a lake or channel of the lake at a speed greater than idle speed.

     (c)….

 

39. Pursuant to IC 14-15-3-13, a permit for a motorboat race can exempt operations from IC 14-15-3-17.  An exemption from IC 14-15-3-17 was not provided for what is described as a “safety zone” in the subject permit:

 

All watercraft operating within the safety zone shall observe idle speed per IC 14-15-3-17….  “Idle speed”…means the slowest possible speed, not exceeding five (5) miles per hour, which maintains steerage so that the wake or wash created by the watercraft is minimal.  [Emphasis omitted from subject permit.]

 

Prehearing Exhibit One as described more particularly in Finding 2.

 

40. Failure by a race participant to comply with IC 14-15-3-17 can be pursued by the DNR against the Bureau as a violation of the subject permit.  Failure to comply can also be pursued against the motorboat operator as a Class C infraction.  IC 14-15-3-31(a).

 

41. The subject permit expands the restrictions in the safety zone beyond what is provided by IC 14-15-3-17:

 

A minimum of 200’ from the shoreline safety zone shall be established on the course that will not be entered during the race/heats to include event boats.  Event organizers shall be responsible for establishing and clearly marking the safety zone.  No watercraft shall be operated, moored, beached, or anchored within the safety zone with the exception of work/safety boats.  Activity within the safety zone by these boats shall be limited to only what is necessary. [Emphasis omitted from subject permit.]

Prehearing Exhibit One as described more particularly in Finding 2.

 

42. The Central Office of the Division of Law Enforcement implemented the safety zone as a supplement to requirements recommended by Lieutenant Jerry Shepherd.  The safety zone was intended to provide added measures for public safety and for environmental protection to near-shore aquatic resources, including waterfowl and shorebirds.  Testimony of Lieutenant Colonel Stephen Hunter. 

 

43. Inclusion of the safety zone as a condition of the subject permit is well-crafted to support the purposes described by Lt. Col. Hunter.  These purposes are central to the values of both the Watercrafts Operations Act and the Lakes Preservation Act and must be implemented vigorously.

 

44. Christopher Fairchild testified the American Power Boat Association (or the US Formula 1 Powerboat Tour) would place buoys to identify the boundaries of the 200 foot line and safety zone.  This intention should be incorporated as a condition to the subject permit, with oversight by DNR’s Division of Law Enforcement.  Language within the subject permit should be amended to read as follows[4]:

Event organizers shall be responsible for establishing and clearly marking place buoys to clearly and accurately mark the safety zone. Approval must be obtained from District 10 of the Division of Law Enforcement, for the location and form of the buoys, in advance of the conduct of the race (and any heats).

 

 

F. Potential for Adverse Impacts to Fish, Wildlife, or Botanical Resources (Particularly to Waterfowl and Shorebirds)

 

45. Although not addressed specifically in the Watercraft Operations Act, the Lakes Preservation Act provides the DNR may consider impacts on fish, wildlife, or botanical resources in making licensure determinations, including the cumulative effects of an activity.  IC 14-26-2-23(c). 

 

[VOLUME 13, PAGE 174]

 

46. The Claimants emphasized the adverse impacts the activities authorized by the subject permit could have upon waterfowl and shorebirds. 

 

47. Diane Kuhl testified for the Claimants as a wildlife rehabilitator who has been licensed by the DNR for 29 years.  She has prepared peer reviewed papers and adopted a protocol for keeping young wood ducks alive.  Kuhl rehabilitates 400 to 500 waterfowl or shorebirds annually, with one or two rehabilitations originating from Stone Lake.  She established a basis to testify as a person with special knowledge.

 

48. Kuhl testified that during the period of May 31 through June 2, 2013, hens of some species are nesting or are caring for young.  Noise caused by the motorboat race may cause a hen to leave a nest.  If removed from the nest is for an excessive period, eggs may lose viability.  Young in the water may become separated from their parents.  Young wood ducks jump from their nests and are very high-strung.

 

49. On cross examination, Kuhl agreed that the habitat for most areas along Stone Lake is not pristine, but birds would use the best habitat available.

 

50. Linda Byer testified an expert for the DNR.  She is the DNR Wildlife District Biologist for District 2, the District that includes LaPorte County.  She has been employed by the DNR’s Division of Fish and Wildlife for 28 years and has been a field biologist for the last ten years.  She testified she visits Stone Lake “a couple of times a year”. 

 

51. Byer did not contest Kuhl’s contention the race activities associated with the subject permit could disturb waterfowl that were present.  But she added that the area did not have quality habitat along the shoreline.  Byer testified excessive mowing of the city park, which borders most of Stone Lake, is the primary factor in limiting habitat.  Wood ducks in the trees would be the exception.  Byer added this time of year domesticated waterfowl are included among those on the lake.  Large numbers of waterfowl are present in the winter because Stone Lake is relatively deep and sustains open water for long periods.  She testified when disruption occurred as a result of the race, birds would fly to another lake in the vicinity of Stone Lake.  Babies would walk to another lake.

 

52. Nicole Messacar testified for the Bureau as Secretary of the LaPorte City Parks Board.  She has a Bachelor of Science in Public Affairs with a major in environmental management.  She is an avid birdwatcher.  Messacar testified she has observed Stone Lake is populated in May most prominently by species of gulls and Canada geese.  In early spring, migratory species such as loons and coots are present, but these have mostly left.  Despite admonishments to park visitors not to feed wildlife, visitors sometimes feed them.  One adverse result from what can be excessive populations of some species of birds is high e coli contamination along the shoreline.

 

53. The likely impacts of activities associated with the subject permit upon waterfowl and shorebirds are difficult to evaluate.  The evidence is insufficient to conclude the conduct of one race weekend, as authorized by the subject permit, would be unreasonably adverse.  But the Claimants have illuminated a legitimate concern, and the impacts could become more serious if similar events were to become frequent at Stone Lake. 

 

54. The subject permit already anticipates review of impacts by DNR’s Division of Fish and Wildlife.  The terms of the review should be clarified and made more vigorous.  In addition, a timeline should be placed for reporting results of the review, with a subsequent public discussion before the Advisory Council established at IC 14-9-6, as follows:

 

To help determine any significant adverse effects on fish, wildlife, or botanical resources, the DNR’s Division of Fish and Wildlife will work to shall assess the shoreline, vegetation, water quality, and any other concerns (a) prior to the event;  A reassessment of the same will occur (b) during the event; and (c) after the event. in an effort to determine any effects of the activities authorized under this permit.  The assessment shall include consideration of impacts to waterfowl and shorebirds.  Upon a reasonable request by the DNR, the Bureau shall assist with the assessment.  By December 31, 2013, the Division of Fish and Wildlife shall prepare a written report of its assessment.  As soon as practicable after preparation, the report shall be submitted to the Advisory Council for review and consideration during a regular meeting.  

 

G. Standing to Seek Administrative Review

 

55. The DNR urges that among the Claimants, only the Langfords are riparian owners on Stone Lake.  As a consequence, the DNR urges only the Langfords have standing to seek administrative review.

 

56. The lack of riparian ownership may or may not be fatal to determining the other Claimants satisfy standing as set forth in Huffman v. Indiana Office of Environmental Adjudication, et al., 811 N.E.2d 806 (Ind. 2004) adopted by the Commission in Hoosier Enviromental Council v. DNR and IP&L Company, 10 Caddnar 252 (2006).  In this licensure context, a consideration of standing to seek administrative review would be a matter of first impression.  A thorough evaluation would be warranted.  Even if a determination were made the Claimants other than the Langfords lacked standing, the Commission has jurisdiction over the subject matter.  The other Claimants would be entitled to plead over and rectify the deficiency.  Administrative efficiency would be violated by so extending this proceeding. 

 

57. The uncontested standing of the Langfords is enough to move to the AOPA Committee on objections or to achieve closure.  Subtle questions of standing for persons who live in the immediate vicinity of a lake, and who have a special affinity for the lake, but who are not riparian owners, should be left for another day.

 

 

G. Application of the Public Trust to Stone Lake

 

55. The Lakes Preservation Act gives the State “full power and control of all of the public freshwater lakes in Indiana.  The State “holds and controls all public freshwater lakes in trust for the use of all citizens of Indiana for recreational uses.”  Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d at 1075 citing to IC 14-26-2-5:

 

    (a) As used in this section, “natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.
    (b) As used in this section, “recreational purpose” means the following:
        (1) Fishing.
        (2) Boating.
        (3) Swimming.
        (4) The storage of water to maintain water levels.
        (5) Any other purpose for which lakes are ordinarily used and adapted.
    (c) The:
        (1) natural resources and the natural scenic beauty of Indiana are a public right; and
        (2) public of Indiana has a vested right in the following:
            (A) The preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state.
            (B) The use of the public freshwater lakes for recreational purposes.
    (d) The state:
        (1) has full power and control of all of the public freshwater lakes in Indiana both meandered and unmeandered; and
        (2) holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.
    (e) A person owning land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake.

 

56. In her testimony for the Claimants, Barbara Hooper expressed concerns that the activities anticipated by the subject permit would disturb the “natural scenic beauty” of Stone Lake.  She urged that people should “enjoy the lake for what it is, a quiet lake.”  Hooper and other Claimants expressed concerns for impacts to the lake’s natural resources.  They also expressed grievances with the pervasive character of lake usage during the anticipated boat races and heats.  These are interests within the scope of the Lakes Preservation Act and are legitimate concerns.

 

[VOLUME 13, PAGE 175]

 

57. Jason Miller, Sports Development Manager for the Bureau, testified the motorboat races on Stone Lake would be an element of recreational activities provided by the lakes of LaPorte County.  The use of public freshwater lakes for “recreational purposes”, and specifically including “boating”, is a vested right of the public of Indiana.

 

58. LaPorte Mayor Blair Milo testified to the economic benefits that can be achieved for the community by highlighting natural resources assets.  When assets do not receive attention, “they’re not respected”.  Mayor Milo testified she strongly favored approval of the subject permit and conduct of the boat race.  Testimony of others indicated the City of LaPorte is the riparian owner for approximately 80% of the shoreline of Stone Lake.  While these factors are not dispositive, they are noteworthy in considering the merits of the subject permit.

 

59. IC 14-26-2-5 seeks to achieve a balance among these legitimate interests.  The activities on Stone Lake which are anticipated by the subject permit displace other uses for one weekend.  Repeated activities of this nature could have a cumulative effect that would offend the public trust, but the subject permit is for single event that seems well within acceptable parameters.  With conditioning of the subject permit as set forth here (including consolidation and enumeration as set forth in the Order below), a reasonable balance has been achieved, and the subject permit should be affirmed.


[1] As used by the DNR and the Commission, the term “boat” and “watercraft” are synonyms.  “Boat” means a watercraft.  312 IAC 1-1-4.5.

[2] Cathcart, Swanson, Cooksey, Gray, and Johnson did not appear in person or through an attorney.  Their complaints were subsequently dismissed under IC 4-21.5-3-18, IC 4-21.5-3-24, and 312 IAC 3-1-9.

[3] As provided in IC 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent.  In 1988, the Commission adopted Caddnar as its index of agency decisions.

[4] Underscored language is added, and language with strikethrough is deleted.