[CITE: Rodgers v. Liston and DNR, 13 CADDNAR 222 (2014)]
[VOLUME 13, PAGE 222]
Cause #: 13-117W
Caption: Rodgers v. Liston and DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Rodgers); Cornelius (Liston); Wyndham (DNR)
Date: January 27, 2014
FINAL ORDER OF SUMMARY JUDGMENT IN FAVOR OF THE RESPONDENTS
Summary judgment is granted in favor of Carol Liston, Joyce Close, Ronald Sprehe, and Norma Gledhill and against John Rodgers and Cynthia Rodgers. There is no dispute as to the material facts. John Rodgers and Cynthia Rodgers are not riparian owners and do not enjoy an easement from a riparian owner. Under IC § 4-21.5-3-7, John Rodgers and Cynthia Rodgers are not aggrieved or adversely affected by the Department of Natural Resource, Division of Water’s issuance of license PL-21982.
A. Statement of the Proceeding and Jurisdiction
1. On June 29, 2013, John Rodgers filed correspondence with the Natural Resources Commission (the “Commission”) in which he contested a “dock permit” issued by the Department of Natural Resources (the “DNR”) to Carol A. Liston in Lake George, Steuben County, at a site commonly known as Lane 140B Lake George, Fremont, Indiana (the “subject property”). The correspondence reflected John Rodgers and his wife, Cynthia Rodgers, claimed proprietary interests in the subject property. John Rodgers and Cynthia Rodgers are collectively the “Rodgers”.
2. In a July 1 letter, the Commission responded to John Rodgers and inquired concerning what persons he believed were needed for an adjudication to resolve the dispute. He responded in a letter filed on July 11, alleging that the persons impeding the Claimants’ riparian rights were Liston Carol [Carol Liston], Joyce Close, Ronald Sprehe, and Norma Gledhill (collectively “Liston and Others”).
3. The Rodgers’ June 29 correspondence, as supplemented by their July 1 correspondence, constitute a petition for administrative review that is subject to 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.
4. Lake George in Steuben County is a “public freshwater lake” under IC § 14-26-2-3 and 312 IAC § 11-2-17 and is subject to IC § 14-26 (the “Lakes Preservation Act”). Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Second Amendment), Indiana Register, 20110601-IR-312110313NRA (June 1, 2011), p. 8. The Commission adopted rules at 312 IAC § 11 to assist with administration of the Lakes Preservation Act.
5. An administrative law judge was appointed under IC § 14-10-2-2 to conduct the proceeding. On July 17, he sent a “Notice of Prehearing Conference” to the Claimants, the Respondents, and other potentially interested persons.
6. On July 23, the DNR filed a “Petition to Intervene” and identified the dock permit referenced in Finding 1 more particularly as a license application for construction within a public freshwater lake assigned Application Number PL-21982 (the “subject license”) by DNR’s Division of Water.
7. The Lakes Preservation Act places full power over public freshwater lakes in the State of Indiana. The State holds public freshwater lakes in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes. The Department of Natural Resources (the “DNR”) is the agency responsible for administering the trust. Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001). See particularly Ind. Code § 14-26-2-5.
8. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act, including those derived from competing interests among persons claiming riparian rights or interests in riparian rights that may be sufficient for the placement of piers and similar structures in public freshwater lakes. Ind. Code § 14-10-2-4 and Ind. Code § 14-26-2-23. Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).
9. The Lakes Preservation Act is derived from legislation originating in 1947. Statutory amendments made in 2000 included the addition of Ind. Code § 14-26-2-23. The amendments clarified the Commission is responsible for adopting rules to help implement a licensure program that includes temporary piers. The Commission was also charged with resolving disputes between “the interests of landowners having property rights abutting public freshwater lakes or rights of access to public freshwater lakes.” The Commission is to address “competing riparian interests”. Ind. Code § 14-26-2-23(e) and Ind. Code § 14-26-2-23(f).
10. The DNR’s “Petition to Intervene” was granted, and the DNR was designated the “Agency Respondent” on July 23. The Rodgers, Liston and Others, and the DNR are collectively the “Parties”.
11. The administrative law judge conducted the initial prehearing conference in Columbia City, Indiana on August 23, 2012. The Rodgers both appeared in person. The Liston and Others were represented by their attorney, Terry L. Cornelius, and the DNR was represented by its attorney, Eric L. Wyndham. The Commission has jurisdiction over the subject matter and over the parties.
12. During the initial prehearing conference, the following schedule was set for filing and serving motions for summary judgment:
(1) Liston and Others must file any motion for summary judgment, with supporting documents, by September 30, 2013.
(2) The Rodgers and the DNR must respond to a motion under Part (1), and file any cross-motion or countermotion for summary judgment, with supporting documents, by December 3, 2013.
(3) Liston and Others must file any reply to a response and any reply to a cross-motion or countermotion under Part (2) by January 10, 2014.
13. On September 24, the “Respondents’ Designation of Evidence”, “Respondents’ Motion for Summary Judgment”, and “Respondents’ Memorandum of Law in Support of Motion for Summary Judgment” (together with attachments) were filed timely for Liston and Others by their attorney.
14. Neither the Rodgers nor the DNR responded to the filings referenced in Finding 13 nor have the Rodgers or the DNR otherwise sought relief.
15. The proceeding is ripe for a disposition of the Respondents’ Motion for Summary Judgment.
[VOLUME 13, PAGE 223]
B. Summary Judgment under AOPA as applied through Trial Rule 56
16. 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.
17. 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.
(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.
18. 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).
19. “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).
20. 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).
[VOLUME 13, PAGE 224]
21. A party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party 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 the party moving for summary judgment establishes a lack of material fact, the party 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).
C. Facts Not in Material Dispute and Legal Conclusions
22. Raymond and Velma Sprehe acquired title to real estate at Lake George, Steuben County (the “Sprehe property”) on April 26, 1982. Exhibit 1 to Exhibit 3 attached to “Affidavit of Carol Liston” (September 20, 2013). The Sprehe property is not adjacent to Lake George as it is west of the subject property. John Henry Stephens survey of December 15, 2011 (the “Stephens survey”) attached as Exhibit 4 to the Liston Affidavit. But the deed for the Sprehe property included a ten-foot wide easement to the shoreline of Lake George. On December 14, 2006, Raymond and Velma Sprehe conveyed the Sprehe property to their children, Liston and Others. Raymond Sprehe died on October 12, 2008, and Velma Sprehe died on January 24, 2013. Liston Affidavit.
23. The Claimants also own real estate in the vicinity of the Sprehe property. Like the Sprehe property, the real estate owned by the Claimants is not adjacent to Lake George.
24. Jerry Grant and Karon Grant (the “Grants”) own property (the “Grant property”) located across Lane 140 from the Sprehe property. The Grant property is adjacent to Lake George and is on the south side of the easement depicted in the Stephens survey.
25. On November 4, 2005, the Grants filed their “Amended Verified Petition to Quiet Title and for Permanent Injunction” in Jerry Grant and Karon Grant v. John Roger and Cynthia Rogers; Christen Antrup and Molly Antrup; Lake George Regional Sewer District; Raymond Sprehe and Velma Sprehe, Steuben Superior Court (Cause No. 76D01-0509-MI-0322). The Amended Verified Petition alleged in part:
7. That…Rodgers, who only recently moved into their new property at Lake George, immediately began asserting an ownership interest in a portion of the Petitioners’ real estate running across the northeastern corner of the Petitioners’ real estate by parking their automobiles thereon, giving permission to their visitors to likewise park their automobiles upon the Petitioners’ real estate, and by attempting to keep the Petitioners from utilizing their own real estate for their own ingress, egress, and parking needs all without the benefit of an easement or right of way to cross the Petitioners property.
The Amended Verified Petition sought an injunction to prohibit the Rodgers from this conduct. Exhibit 1 attached to Liston Affidavit.
26. The Rodgers filed their “Answer of Respondents Rodgers to Petitioners’ Complaint, Counterclaims Against Petitioners, and Crossclaim of Respondents Sprehe Against Antrup and Lake George Regional Sewer District” in Cause No. 76D01-509-MI-0322 on August 21, 2006. With respect to the allegations referenced in Finding 25, the Answer provided:
7. That the…Rodgers, admit that they used a 10 ft. strip of land for access from the county road to Lake George and admit that they claim the right to continue to using the entire 10 ft. width in the future. If any part of the 10 ft. width used by…Rodgers is declared to be land owned by petitioners Grant, Antrup or Sprehe, then…Rodgers do claim easement rights as to a portion of the land to which Petitioners Grant, Antrup, or Sprehe, own fee simple title.
Exhibit 2 attached to Liston Affidavit.
27. The “Answer of Respondents Sprehe to Crossclaim of Respondents Rodgers; (2) Counter-Claim by Respondents Sprehe Against Respondents Rodgers” was filed in Cause No. 76D01-509-MI-0322 on September 5, 2006. Included in the Counterclaim was Count One in which the Sprehes sought “judgment quieting in them the easement rights, as set forth in their deed, and all riparian rights associated therewith.” Exhibit 3 attached to Liston Affidavit.
28. The Steuben Superior Court issued a “Partial Order of Summary Judgment” in Cause No. 76D01-509-MI-0322 on January 28, 2011:
PARTIAL ORDER OF SUMMARY JUDGMENT
This cause is submitted to the court for a determination of rights in a certain ten-foot wide strip of real estate…. The petitioners, Jerry Grant and Karon Grant own property to the south of the ten-foot wide strip of property. They have dismissed their claims against all defendants. John Rodgers and Cynthia Rodgers and Christen Antrup and Molly Antrup own property on the north side of the ten-foot wide strip. The Lake George Regional Sewer District owns an easement through the ten-foot wide strip for the distribution of its services to the property owners. These facts are not disputed.
Each of the remaining property owners have Motions for Summary Judgment before the court. BEING DULY ADVISED, findings are ENTERED that there is no genuine issue of material fact on the following issues:
1. The language of the Velma Sprehe chain of title confers a deeded ten-foot wide easement over the same ten-foot parcel of property that includes riparian rights.
2. Christen and Molly Antrup have a prescriptive easement to use of the same disputed ten-foot wide strip of property lying along the southerly boundary of the Rodgers and Antrup properties.
3. John Rodgers and Cynthia Rodgers do not have a prescriptive right to the use of the ten-foot wide strip of property as a way of necessity.
Wherefore it is ORDERED:
1. That Summary Judgment is entered in favor of Velma Sprehe and against John Rodgers and Cynthia Rodgers on her cross claim as set forth in this order.
2. That Summary Judgment is entered in favor of Christen Antrup and Molly Antrup against John Rodgers and Cynthia Rodgers as set forth in this order.
3. That there exists genuine issues of material fact on all other remaining issues. Judgment is expressly entered on less than all of the issues.
4. That Summary Judgment is denied on John Rodgers and Cynthia Rodgers’ Motion for Summary Judgment against Christen Antrup and Molly Antrup and Valma Sprehe. The 2009 materials as designated do not conclusively prove title in fee simple to the ten-foot strip of property. Genuine issues of material fact remain as to whether the quitclaim deeds acquired by John Rodgers and Cynthia Rodgers in 2009 establish ownership in fee simple to the ten-foot strip.
5. That there is no just reason for delay and pursuant to Trial Rule 56(c), this cause is subject to appeal.
Emphasis supplied by the Court. Exhibit 5 attached to Liston Affidavit.
[VOLUME 13, PAGE 225]
29. The Stephens survey depicts the ten-foot easement as being two easements. Easement 1 is approximately ten feet wide and 267.54 feet long and provides lake access. Easement 2 is approximately ten feet wide and 61.96 feet long and provides access to the Antrup property for vehicles. Easement 1 and Easement 2 combined provide easement rights for the Sprehes to access Lake George.
30. After issuance of the Partial Order of Summary Judgment, the Rodgers conveyed whatever property interests they had to Christen and Molly Antrup through a Warranty Deed recorded on May 24, 2012. Exhibit 6 Certified by the Steuben County Recorder on September 13, 2013.
31. Through an “Agreement and Grant of Easement” recorded on May 29, 2012, and which pertains to the property acquired from the Rodgers and described in Finding 30, Christen and Molly Antrup created “for the benefit of the Rodgers’ future, unrelated owners of Parcel III as well as current and future unrelated assigns who own or possess Parcel III or unrelated tenants of Parcel III, a permanent, non-exclusive easement for ingress and egress across the portion of Parcel II that is contiguous to Parcel I in order to access Lake George including riparian rights for dock/pier priority, installation and use on Parcel II.” For the purposes of this easement “unrelated” was defined as “a natural person who is not a parent, child or grandchild, sibling, aunt, uncle or first cousin of John Michael Rodgers and/or Cynthia E. Rodgers and who is not John Michael Rodgers and/or Cynthia E. Rodgers”. Exhibit 7 attached to Liston Affidavit. The created easement is unambiguous in that it excludes both of the Rodgers as potential beneficiaries.
32. The Steuben Superior Court approved a “Joint Motion for Dismissal with Prejudice by the Antrups and Rodgers” in Cause No. 76D01-509-MI-0322 on May 15, 2012. Exhibit 8 Certified by the Clerk of the Steuben Circuit Court on September 10, 2013.
33. By decree of the Steuben Circuit Court in Cause No. 76D01-509-MI-0322, the Sprehe property enjoys a deeded ten-foot wide easement over the same ten-foot parcel of property that includes riparian rights. This parcel is the subject property, and Liston and Others now have a dominant estate associated with the Sprehe property. The decree must properly be given res judicata or collateral estoppel effect.
34. Through a Warranty Deed recorded on May 24 and an “Agreement and Grant of Easement” recorded on May 29, 2012 with Christen and Molly Antrup, the Rodgers conveyed any proprietary interests in the ten-foot wide easement. Use of the easement associated with persons who may acquire interests in the Rodgers property is limited to a natural person unrelated to the Rodgers. The Rodgers themselves are specifically excluded.
35. The DNR may properly issue a license under the Lakes Preservation Act and 312 IAC § 11 to Liston and Others to place a pier within Lake George at the ten-foot wide easement. Through an easement, Liston and Others appear to enjoy a dominant estate over the fee owner’s riparian rights.
36. To be “aggrieved or adversely affected” under AOPA, IC § 4-21.5-3-7 requires that a person “must have suffered or be likely to suffer in the immediate future harm to a legal interest, be it a pecuniary, property or personal interest. Huffman v. Indiana Office of Environmental Adjudication, Indiana Department of Environmental Management and Eli Lilly and Company, 811 N.E.2d 806 (Ind. 2004). It is insufficient under IC § 4-21.5-3-7 for persons to initiate a proceeding for administrative review on the basis of a “generalized concern as a member of the public.” Id. at 817. Hoosier Environmental Council v. DNR and IP&L Company, 10 Caddnar 252, 256 (2006).
37. The evidence is undisputed that the Rodgers have not suffered and are unlikely to suffer immediate future harm to a legal interest as a result of DNR’s grant of the subject license. They are not riparian owners and do not have an easement to enjoy the rights of a riparian owner.
38. Summary judgment must properly be granted in favor of Liston and Others and against the Rodgers.