CADDNAR


[CITE: Bowman v. Walls, 14 CADDNAR 85 (2016)

 

 

[VOLUME 14, PAGE 85]

 

 

Cause #: 15-021W    

Caption: Bowman v. Walls

Administrative Law Judge: Jensen

Attorneys: pro se (Bowman); Leininger (Walls);

Date: May 31, 2016

 

 

[NOTE: Final Order follows the Findings of Fact and Conclusions of Law.]

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Procedural Background and Jurisdiction

 

1.     On January 13, 2015, the Petitioner, Eric E. Bowman (“Bowman”), filed correspondence with the Natural Resources Commission (“Commission”) seeking resolution of a riparian rights dispute involving piers placed by Lot Owners in El-Nel Park on Big Barbee Lake (“El-Nel-Park”) located in Kosciusko County.  Bowman alleged more particularly as follows:

 

My neighbor Rebecca Walls has installed piers on our eastment on Big Barbee Lake.  The configuration of her piers are affecting my navigation of my boat into and out of the channel.  I have included pictures, Declaration of Restrictive Covenants, a map showing the lots and eastments, our names, addresses and phone numbers.[1]

Bowman’s correspondence and attachments are referred to collectively as “the Petition”.

 

2.     Indiana Code § 14-26-2-23(e)(3) required the Commission to “establish a process under IC 4-21.5 for the mediation of disputes among persons with competing interests…” along the shoreline of public freshwater lakes.  Consistent with Ind. Code § 14-26-2-23(e)(3), the Commission adopted 312 IAC 11-1-3 authorizing a person to initiate a proceeding controlled by Indiana Code §§ 4-21.5 and 312 IAC 3 for the purpose of resolving “a dispute among riparian owners…concerning the usage of an area over, along, or within a shoreline or waterline of a public freshwater lake.”  More particularly, 312 IAC 11-3-2 authorizes a person to “seek administrative review of the placement or maintenance of a structure…” including a temporary pier. 

 

3.     This proceeding is governed by Indiana Code §§ 4-21.5 et. seq. and 312 IAC 3 et. seq.

 

4.     The Commission possesses jurisdiction over the subject matter and the parties to this proceeding and serves as the ultimate authority pursuant to 312 IAC 3-1-2.  Indiana Code § 4-21.5-1-15.

 

5.     A prehearing conference was conducted on March 19, 2015 following the service of notice to the then identified parties, which included Bowman and Rebecca Walls (“Walls”).  Walls was represented by counsel, Daniel K. Leininger and Bowman represented himself.  At the prehearing conference the parties clarified the issues presented and were in agreement that they each maintained piers extending further than 30 inches from the Channel’s seawall.  They each also agreed that they, along with one additional property owner, Steve Rauch (“Rauch”), possessed the rights to extend piers from the easement at issue in this proceeding.  The discussion reflected further that a final disposition in this proceeding might also have an impact upon a pier maintained by John Evans (“Evans”) on property he owns situated adjacent to the property burdened with the easement at issue in this proceeding.

 

6.     It was determined at the prehearing conference that Rauch and Evans should be joined as parties to this proceeding.

 

7.     Notice was served upon all the parties, including Rauch and Evans, and a supplemental prehearing conference was conducted on June 16, 2015.

 

8.     During the supplemental prehearing conference Rauch advised that he had sold his property to Jake Herendeen and Brittany Herendeen (collectively referred to as “the Herendeens”).

 

9.     Jake Herendeen was present with Rauch for the supplemental prehearing conference. 

 

10.  With all parties consenting, a final order of dismissal was entered with respect to Rauch and the Herendeens were made parties by substitution.

 

11.  The parties participated in mediation without reaching an agreement.

 

12.  Walls has been represented by Daniel K. Leininger throughout the pendency of this proceeding.  Counsel, Stephen R. Snyder, entered his appearance on behalf of Bowman on August 7, 2015.  Evans and the Herendeens have been self-represented.

 

13.  On January 8, 2016, Walls, by counsel, filed her motion to amend pleadings to add affirmative defenses.  The motion was granted without objection on January 14, 2016 during the final status conference.

 

14.  Following the timely filing of witness and exhibit lists and Walls’ voluntary filing of a “Trial Brief” on February 2, 2016, the administrative hearing was conducted as scheduled on February 4, 2016. Bowman and Walls appeared in person and by their respective counsel.  Brittany Herendeen appeared on behalf of the Herendeens.  Evans did not appear.[2]

 

15.  Upon the request of counsel for both Bowman and Walls the parties were provided an opportunity to file post hearing briefs no later than March 21, 2016.  

 

16.  Bowman and Walls filed post hearing briefs on March 18, 2016 and March 14, 2016, respectively.

 

 

[VOLUME 14, PAGE 86]

 

 

Issues Presented

 

17.  The issues presented by Bowman and Walls for determination were identified in their respective post hearing briefs.

 

18.  The questions for consideration are restated as follows:

 

a.      Does the Commission possess sufficient jurisdiction to determine the continued validity of Restrictive Covenant 6 and, if so, should Restrictive Covenant 6 be declared invalid and unenforceable under the doctrines of laches, waiver, acquiescence, abandonment, changed conditions within El-Nel-Park or applicable statutes of limitations?

b.     Do Walls’ and the Herendeens’ piers, extended into the channel of Big Barbee Lake under the general licensing authority of Indiana Code § 14-26-2-23(e)(2)(B) and 312 IAC 11-3-1, interfere with Bowman’s navigation of his watercraft  and infringe upon Bowman’s access to Big Barbee Lake in contravention to 312 IAC 11-3-1(b)(2) and (b)(3)?

 

 

Findings of Fact[3]

 

19.  The parties to this proceeding are owners of Lots depicted on the Amended Plat of El-Nel Park on Big Barbee Lake In Kosciusko County Indiana (hereafter referred to as “the Plat”), which was dedicated by Nellie L. Tenney, Suanne Perry, Charles E. Perry, Mary L. Camden and John T. Camden on May 28, 1960.  Exhibit 1.  The relevant portion of the Plat has been reproduced here to assist readers’ understanding of the discussion that follows.

 

http://www.in.gov/nrc/decision/images/15-021w.v14_files/image001.jpg

 

20.  Bowman purchased real property consisting of Lots 12 and 13 as depicted in the Plat in 2003.  Testimony of Bowman, Exhibits 1 & F. 

 

21.  Walls is the owner of Lots 14, 15, 16 and 17 in El-Nel-Park as depicted on the Plat.  Testimony of Bowman and Walls, Exhibits 1, 2, 3, A, B & C.

 

22.  The Herendeens own Lots 18 and 19 in El-Nel-Park as depicted on the Plat.  Testimony of Bowman, Exhibits 1, 2 & 3.

 

23.  Evans owns the south half of Lot 9 and the entirety of Lots 10 and 11 in El-Nel-Park as depicted on the Plat.  Testimony of Bowman, Exhibits 1 & G.

 

24.  The Lots owned by Bowman, Walls and the Herendeens are situated west to southwest of a roadway identified on the Plat as “South Shore Drive”, that is currently known as and will be referred to as South Barbee Drive. Exhibit 1, 2 & 3.  On the east side of South Barbee Drive, corresponding generally to the location of Lots 15 through 17, lies a portion of real property identified on the Plat as “B” (hereafter referred to as “Tract B”).

 

25.  Tract B fronts on the shoreline of the channel to Big Barbee Lake (hereafter referred to as “the Channel”).  Id.  Adjacent to and generally south and east of Tract B are Lots 9, 10 and 11, owned by Evans.  Id.

 

26.  As applicable to this proceeding the Plat expressly states that Tract B is for the use of lot owners or tenants of lots that are not lake front lots.  Exhibit 1. 

 

27.  The parties do not dispute that through the ownership of their respective Lots in El-Nel Park Bowman, Walls and the Herendeens are entitled to extend piers and moor boats along the shoreline of Tract B.  Testimony of Bowman, Walls & C Walls, Exhibit 1.

 

28.  Tract B is situated on the south to southwest side and terminal end of the 40 foot wide Channel.  Exhibit 1.

 

29.  As relevant to this proceeding, Restriction number 6 of the Declaration of Restrictive Covenants for El-Nel Park (hereafter referred to as “Restrictive Covenant 6”) states as follows:

 

6.  A pier may be constructed in the channel running lengthwise to the channel but shall not extend into the channel more than 30 inches.

Testimony of Bowman, Exhibit 9.

 

30.  Bowman[4], Walls, Evans, the Herendeens, the Herendeens’ predecessors in title, and neighbors Kenneth E. and Caroline Fawley, maintain piers extending into the waters of the Channel.  Testimony of Bowman, Walls & Kenneth Fawley, Exhibit 10.  With the exception of Evans’ all of these Lot owners have situated their piers parallel to the seawall.  While the piers are situated lengthwise, or parallel, to the Channel seawall, the piers consistently extend more than 30 inches into the waters.  Id.

 

31.  Lot 11, owned by Evans, has no abutment to the shoreline of any kind.  Id

 

32.  The full width of Evans’ one-half of Lot 9 undisputedly fronts on the shoreline of the Channel.  Exhibits 1, 2 & 3.  However, a comparison of the Plat with aerial photographs of the relevant portion of EL-Nel Park raised question with respect to whether the shoreline on Evans’ Lot 9 is entirely on the side of the Channel, as is depicted in the Plat, or whether the shoreline frontage associated with this Lot is partially on the east side of the Channel and partially along the southeast one-half of the end of the Channel as is observed in the aerial photographs.  (See Finding 39.)  Comparison of Exhibit 1 to Exhibits 2 & 3.

 

33.  Walls and Bowman disagree with respect to whether any portion of Evans’ Lot 10 in El-Nel-Park abuts the shoreline of the Channel and to the extent Lot 10 is a shoreline property the length of the shoreline that can be attributed to Lot 10.  Testimony of Bowman & Walls.

 

34.  If Bowman is correct and Evans’ one-half of Lot 9 and Lot 10 bear the relationship to the shoreline of the Channel as is depicted in the aerial photograph then Evans’ property consumes the shoreline of nearly the entire end of the Channel.  However, if Walls is correct and Evans’ property is comprised of shoreline only as observed in the Plat, the shoreline along the entire end of the Channel is attributable to Tract B.  Comparison of Exhibit 1 to Exhibits 2 & 3.

  

35.  Neither Bowman nor Walls provided evidence of a survey to identify the shoreline of Tract B with certainty.

 

[VOLUME 14, PAGE 87]

 

 

36.  Bowman testified that he had personally located survey pins identifying the corners of the Channel, which confirm that the northern portion of the west boundary of Evans’ Lot 10 does abut the shoreline of the Channel as depicted on the aerial photographs.  See “red dots” on Exhibit 3. 

 

37.  Walls offered no specific evidence to the contrary of Bowman’s testimony.

 

38.  The only evidence in the record supports the conclusion that Evans’ Lot 9 and Lot 10 together consume nearly all of the shoreline along the end of the Channel as depicted in the aerial photographs, which in relevant part is reproduced here.  Exhibit 3.

 

http://www.in.gov/nrc/decision/images/15-021w.v14_files/image002.jpg

 

39.  The piers at issue in this proceeding are situated near the end of the Channel with Bowman’s pier situated parallel to the west side in the south-west corner of the Channel. Exhibit R. (Note: Bowman’s current pier is not depicted in the aerial photographs).  Walls’ pier is situated parallel to the west side of the seawall approximately 10 feet north of Bowman’s pier and the Herendeens’ pier is located parallel to the west seawall of the Channel approximately one foot north of Walls’ pier.  Exhibits HH & LL.  Evans’ maintains one pier that extends in a perpendicular fashion from the end of the Channel affixed to the shoreline associated with Lot 10 and another pier positioned parallel to the east side of the Channel with a boatlift.  Exhibit GG.   See generally Exhibit 3, as reproduced in Finding 39.

 

40.  Walls placed significant emphasis upon the possibility that Evans could voluntarily remove his pier from the end of the Channel.  Testimony of Walls.  The evidence establishes that Evans is agreeable to relocating the pier at the end of the channel to be situated parallel to the seawall in compliance with Restrictive Covenant 6.  Testimony of Bowman.

 

41.  Walls hypothesized further that the Commission could order Evans to remove his pier from the center of the end of the Channel, require Evans to allow Bowman to moor his boat in Evans’ riparian zone or mandate that Evans remove the pier and boat lift on the east side of the Channel that she characterized as unused or under-utilized.  Testimony of Walls & C. Walls.  From Walls’ perspective these actions would improve Bowman’s ability to navigate without the need for her pier configuration to be altered.  Testimony of Bowman, Walls & C. Walls.  Walls further suggested that although Bowman possesses riparian rights to the shoreline of Tract B that he could avoid any conflict with Walls or the Herendeens and eliminate the complained of navigational issues by mooring his boat at his parents’ house on Kuhn Lake, which is attached to Big Barbee Lake.  

 

42.  The administrative law judge observes Walls’ failure to appreciate that each owner of shoreline along the Channel possesses riparian rights that the owner may use, or not use, as that owner desires.[5]  Walls further fails to recognize that all riparian owners, including Walls, must work cooperatively to ensure that each owner’s exercise of riparian rights is courteous to the exercise of riparian rights by other riparian owners and to use by the public.

 

43.  The issue presented by the parties focuses on the extension of piers and watercraft into the waters and not on the lateral limitations[6] of their riparian zones along the finite stretch of shoreline.

 

44.  The Herendeens’ pier extends approximately 110 inches from the seawall into the waters of the Channel.  Testimony of Bowman, Exhibit 7.  The Herendeens' predecessor in title, Rauch, maintained a boat lift on this pier that the Herendeens do not intend to re-install due to the realization that it creates navigational difficulties for Walls and Bowman.  Testimony of Brittany Herendeen & Bowman, Exhibits 7 & 8.

 

45.  Without a boat lift, the mooring of an eight and one-half foot wide pontoon boat at the Herendeens’ pier causes the most lakeward side of the boat to be located approximately 18 feet into the waters of the 40 foot wide Channel. 

 

46.  Walls’ pier extends approximately 101 inches into the water of the Channel from the seawall.  Testimony of Bowman, Exhibit 6.

 

47.  In combination, Walls’ pier with a moored eight and one-half foot wide pontoon boat extends approximately 17 feet into the waters of the Channel. 

 

48.  Bowman presently is required to navigate from the southwest corner of the Channel in an east-northeast direction to avoid conflict with Walls’ pier and boat that are located approximately 10 feet north, or directly in front of his pier, while at the same time avoiding contact with the Evans’ pier situated to the north of his pier and boat.  Testimony of Bowman.  Bowman is also required, at present, to turn his boat around by hand because of crowding caused by Walls’ and Evans’ piers.  Id

 

49.  Bowman’s navigational challenges can be lessened and his access to Big Barbee Lake can be eased if the Evans’ pier is situated parallel to the seawall and the extension of Walls’ pier and moored boat into the water is reduce.   Id.  Bowman testified that these altered pier configurations might provide him sufficient room to turn his boat around while under power, instead of by hand. 

 

50.  While there is no testimony relating to the means by which Walls, the Herendeens or Evans are able to turn their boats around at the end of the Channel it is reasonably concluded that all of the parties would be benefitted by having a greater amount of space within which accomplish this task.  

 

 

[VOLUME 14, PAGE 88]

 

 

51.  The evidence does not provide the distance to which Evans’ pier extends into the water; however Bowman testified that Evans is agreeable to relocating the pier at the end of the channel to be situated parallel to the seawall in compliance with Restrictive Covenant 6. 

 

52.  Bowman testified that Walls’ pier used to extend only four feet from the seawall and while it interfered with his navigation he was able to work around it. 

 

53.  The extension of the Herendeens’ pier and the past attachment of a boat lift to that pier by the previous owner, Rauch, interfered with Walls’ navigation and was a contributing factor in Walls’ decision to install the second pier section extending her pier further into the Channel.  Testimony of Walls & Bowman. 

 

54.  Bowman attempted to discuss the situation with Walls when he recognized that Walls was taking steps to address the interference caused by Rauch’s addition to the now Herendeens’ pier.  Id.  Bowman expressed to Walls that the addition to her pier would make it ever more difficult for him to navigate from his pier.  

 

55.  Ultimately, despite Bowman’s requests, Walls’ extended her pier to its present configuration, thereby creating the interference of which Bowman now complains.  Id.  Walls acknowledged that “it wasn’t easy” for him but observed that Bowman can get out.  Testimony of Walls. 

 

56.   Walls also maintains that the additional distance from the seawall is necessary to avoid having her pontoon boat become stuck on the bottom of the Channel.

 

57.  Kenneth Fawley (“Fawley”) testified that in periods of dry weather it would be difficult or impossible to navigate a boat from a pier restricted in width to 30 inches. 

 

58.  Chris Walls (“C. Walls”), the son of Walls, testified that in dry periods the pontoon on his mother’s boat lies in the “muck” on the bottom of the channel.

 

59.  The administrative law judge observed C. Walls become somewhat guarded in his responses when pressed during cross examination about whether the pontoons on his mother’s boat become mired in “muck” when the waters of Big Barbee Lake are at normal level. [7]

 

60.  C. Walls ultimately acknowledged that the pontoons of his mother’s boat do not routinely become stuck at normal water levels.  C. Walls acknowledged that in periods of dry weather, all of the riparian owners along the Channel experience similar difficulty with pontoons lying on the bottom under low water conditions; the situation is not unique to Walls.

 

61.  It is recognized that in periods of dry weather the water level in the Channel will reasonably be low and may, on occasion, not be conducive to the navigation of watercraft.  Such would impact all of the parties equally. 

 

62.  The evidence establishes that on occasion, most frequently during periods of dry weather when the Channel is experiencing lower water depths, the pontoons, particularly the pontoon closest to the Channel seawall, may become stuck on the bottom of the Channel.  A pontoon may also come to rest on the bottom of the Channel due to the overall weight of passengers and cargo on board or may result from an unequal distribution of that weight.  Shifting weight to the side of the boat in deeper water farthest away from the seawall is the most common means of overcoming this challenge.  Testimony of C. Walls.

 

63.  Fawley testified that he and his wife have resided in El-Nel Park since 1963, purchasing Lot 1 in 1963 and Lots 2 and 3 in 1971.  Exhibits D & E.  Fawleys' Lots are situated on the southwest corner of the intersection of the Channel at issue in this proceeding with a second, 60 foot wide channel, running east and west.  Fawley presently maintains two piers, one on each channel.  Testimony of Fawley, Exhibit 3.  The pier Fawley maintains on the larger channel consists of a pier extending approximately six feet from the seawall with an affixed boat lift.  Testimony of Fawley, Exhibit N.  The pier located on the Channel at issue in this proceeding extends approximately four feet from the seawall without an attached boat lift.  Testimony of Fawley, Exhibit 3.  Both of Fawleys' piers are situated parallel to the seawall.  Testimony of Fawley.

 

64.  Restrictive Covenant 6 has consistently been violated since as early as 1963 by the installation of piers extending more than 30 inches into the waters of the Channel.  Testimony of Fawley & Walls, Exhibits U, V, W & X.

 

65.   Whether the width of a shore station or boatlift should be considered within the dimension of the pier or whether that width is more appropriately considered separately from the pier arose as a point of disagreement between Walls and Bowman. 

 

66.  Restrictive Covenant 6 imposes a restriction on the distance a pier may extend into the waters of the Channel.  Neither Restrictive Covenant 6, nor any other restrictive covenant in the Declaration of Restrictive Covenants for El-Nel Park establishes a size restriction upon watercraft that may be moored at an individual pier.  Exhibit 9.

 

 

[VOLUME 14, PAGE 89]

 

 

67.  While the testimony is somewhat incongruous, it is reasonably concluded that at points 30 inches to 48 inches from the Channel seawall the normal water depth ranges from approximately 12 inches to 24 inches deep.  The testimony was consistent that the normal water depth at 48 inches from the Channel seawall is 24 inches.  Testimony of Bowman & C. Walls.

 

68.  The watercrafts discussed by the parties are pontoon boats.  Pontoon boats are most typically approximately eight to eight and one-half feet in width with a motor mounted in the center of the stern.  Therefore, even if the pontoon boat were moored directly to the Channel seawall the motor would be located approximately four feet away from the seawall in 24 inches of water.  Id.

 

69.  A boat motor on a pontoon boat can be effectively operated in 24 inches of water.  Id.

 

70.   Bowman, Walls and her son, C. Walls agreed that at normal water levels watercraft can effectively be navigated from a pier extending 30 inches into the water from the seawall. 

 

 

Conclusions of Law

 

71.  Bowman argues that Principle 1 of “Riparian Zones within Public Freshwater Lakes and Navigable Waters,” Information Bulletin #56 (Second Amendment), Legislative Services Agency, 20100331-IR-312100175NRA (March 31, 2010), (“IB 56”), should be applied to constrain the extension of piers into the waters of the Channel to 30 inches from the seawall as established in Restrictive Covenant 6.

 

72.  Principle 1 of IB 56 states that “homeowner association’s constitution and bylaws, or a similar document intended to govern riparian rights…supersedes other principles governing a determination of riparian zones.”

 

73.  IB 56 is a nonrule policy document that does not have the effect of law. Skilbred, et al. v. Ward, et al., 13 CADDNAR 125, 142 (2013).

 

74.  In opposition to Bowman’s urging, Walls proposed that the Commission declare Restrictive Covenant 6 invalid under the theory of laches, waiver, acquiescence, abandonment, changed conditions within the platted neighborhood and the Indiana statutes of limitations.  In support of her position, Walls recognized the Indiana Court of Appeals’ affirmation of the Commission’s authority to determine landward property rights “to the extent necessary to carry out” its statutory obligation to resolve disputes between competing riparian owners.  See Kranz v. Meyers Subdivision Prop. Owners Ass’n, 969 N.E.2d 1068, (Ind. Ct. App., 2012).

 

75.  In response, Bowman acknowledged the Commission’s authority, as affirmed by the Court of Appeals in Kranz, but expressed the position that while the Commission possesses authority to interpret and apply the language of a conveyance, or in this case a restrictive covenant, the Commission lacks jurisdiction to invalidate rights granted or restrictions imposed by such an instrument.  Bowman concludes that action by the Commission to invalidate Restrictive Covenant 6, as requested by Walls, on the bases of laches, waiver, acquiescence, abandonment, changed conditions within the platted neighborhood and the Indiana statutes of limitations exceeds the Commission’s jurisdiction. 

 

76.  Customarily, IB 56 is applied for the purpose of establishing the lateral boundaries of riparian owners’ riparian zones.  With respect to the extension lakeward of a riparian zone, IB 56, citing Bath v. Courts, 459 N.E.2d 72, (Ind. App. 1984) states:

 

The right to maintain a pier exists only so far out as not to interfere with the rights of the public or with the rights of other riparian owners. "These rights can co-exist only if the riparian right to build a pier is limited by the rights of the public and of other riparian owners”.

 

77.  The Commission acknowledges its historic exercise of authority under the Doctrine of Primary Jurisdiction and recognizes that the determination of property owners’ interests in land in accordance with instruments of conveyances and restriction, such as Restrictive Covenant 6, will continue to be necessary on to addressing the rights of competing riparian owners. 

 

78.  The Commission also recognizes that its focus is the resolution of the parties’ riparian rights disputes and the protection of the public interest in Indiana’s public freshwater lakes in accordance with Indiana law.  Indiana Code §§ 14-26-2-5 and 14-26-2-23(e)(3) and 312 IAC 11-1-3.

 

79.  While recognizing the authority to consider, interpret and determine the appropriate application of Restrictive Covenant 6 the Commission notes that the exercise of such authority should be restrained to those occasions when such consideration is necessary.  In this instance the Commission is fully able to resolve the dispute between Bowman, Walls, the Herendeens and Evans and to address the rights of the public with respect to the Channel consistent with Indiana law without considering the validity or invalidity of Restrictive Covenant 6 under the Doctrine of Primary Jurisdiction.[8] 

 

80.  Indiana Code § 14-26-2-23(e)(3) required the Commission “to establish a process under IC 4-21.5 for the mediation of disputes among persons with competing interests or between a person and the department” with respect to the exercise of riparian rights.

 

81.  The Commission was obligated to provide objective standards for issuing permits associated with “activities over, along, or lakeward of the shoreline”, including, as relevant here, activities associated with the placing, modifying or repairing a temporary structure.  Further, the Commission was required to exempt from licensing those activities “unlikely to pose more than minimal potential for harm to the public rights…”  Indiana Code § 14-26-2-23(e)(2).

 

82.  The piers maintained by Bowman, Walls, the Herendeens and Evans are temporary structures as defined at 312 IAC 11-2-25.

 

 

[VOLUME 14, PAGE 90]

 

 

83.  Bowman, Walls, the Herendeens and Evans are riparian owners.  312 IAC 11-2-19.

 

84.  The evidence establishes that the Channel, although man made, is connected to and within “the uninterrupted close that includes the main body” of Big Barbee Lake, which is a public freshwater lake.  Indiana Code § 14-26-2-24 and Natural Resources Commission, Information Bulletin # 61 (Fourth Amendment) Listing of Public Freshwater Lakes, October 1, 2014.  The Channel is, therefore, a part of Big Barbee Lake, and is governed by Indiana Code §§ 14-26, more commonly referred to as the Lakes Preservation Act, the same as Big Barbee Lake.  Allen v. LaSalle and DNR, 13 CADDNAR 236, 241, (2014)

 

85.  A pier is “a long narrow structure extending from the shore into a body of water and used as a landing place for boats or used for recreational purposes.”  Jansing v. DNR and Hawkins, et al., 11 CADDNAR 8, 23 (2007)  “A ‘boat lift’ is a form of floating drydock that is commonly used in private marinas to keep boats out of the water while not in use.”  Cress v. Byrer & DNR, 13 CADDNAR 279 (2014).  The Commission has typically viewed a boat lift as an appendage to a pier in much the same manner as a boat moored to a pier is considered an appendage to that pier.  Jansing, supra; Cress, supra; Adochio, et al. v. Kranz, 11 CADDNAR 400, (2008), Clauss v. DNR, 11 CADDNAR 150 (2007), Spaw v. Ashley, 12 CADDNAR 233 (2010).  A boat lift is not the equivalent of a pier. 

 

86.  Temporary structures may be placed and maintained by a riparian owner without need to acquire a written license from the Department under IC 14-26-2 and 312 IAC 11 provided the temporary structure is qualified in accordance with 312 IAC 11-3-1(b), which states as follows: 

 

(b) In order for a temporary structure to qualify, the structure must satisfy each of the following:

(1) Be easily removable.

(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.

(3) Not unduly restrict navigation.

(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.

(5) Not extend more than one hundred fifty (150) feet from the shoreline or water line.

(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the shoreline or water line.

(7) Not be a marina.

(8) Not be a group pier.

(9) Be placed by a riparian owner or with the written approval of a riparian owner.

312 IAC 11-3-1.

 

87.  As applicable to this proceeding the evidence establishes that the sizes and configurations of the Herendeens’ pier, Walls’ pier and Evans’ pier each contribute to infringe upon Bowman’s ability to access the open waters of Big Barbee Lake and create an undue restriction on Bowman’s navigation from his pier to the open waters of Big Barbee Lake.  The Herendeens, Walls’ and Evans’ piers violate 312 IAC 11-3-1(b)(2) and (b)(3).

 

88.  The evidence also establishes that in a similar fashion the Herendeens’ pier interferes with Walls’ use of her pier.  

 

89.  Riparian rights are possessed by the owners of all of the shoreline associated with the Channel[9], including the shoreline on the opposite side of the Channel from the piers placed and maintained by Walls and the Herendeens

 

90.  With Walls’ pier extending 17 feet into the Channel and the Herendeens’ pier extending 18 feet into the Channel if a similarly sized pier were to be placed and maintained on the opposite side of the Channel the combined widths of the piers would consume 34 to 36 feet of the 40 foot wide Channel. 

 

91.  Such placement of temporary structures would leave only a four to six foot wide lane of navigation.  This result is inconsistent with 312 IAC 11-3-1(b)(2) and (b)(3).

 

92.  Each riparian owner on the Channel must be reasonable in exercising their riparian rights; being respectful and courteous to the rights of every other riparian owner as well as to the rights of the public.  “Riparian rights and public ‘rights can co-exist only if the riparian right to build a pier is limited by the rights of the public and of other riparian owners.’”  Allen v. LaSalle and DNR, 13 CADDNAR 236, 242 (2014), citing Bath v. Courts, 459 N.E.2d 72, 76 (Ind. App. 1984).

 

93.  “The boundaries of riparian property do not extend to the middle of the lake”  Zapffe v. Srbeny, 587 N.E.2d 177, 180, (Ind. App. 1992), IB 56.

 

94.  “Just as riparian boundaries do not extend to the middle of a lake, they do not extend to the middle of a channel.”  Allen at 243 and Belcher and Belcher v. Yager- Rosales, 11 CADDNAR 79 (2007).

 

95.  In Allen, the same owner, LaSalle, held the riparian rights to the shoreline on both sides of a channel.  Just as LaSalle was prohibited from merging the riparian rights from each side of the channel to the center “to support the placement of a long pier or another obstruction to public navigation”, neither can Walls and the Herendeens exercise riparian rights to the center of the channel when an equal exercise of riparian rights by the riparian owner on the opposing side of the channel would create a navigational barricade.  Id

 

96.  Consideration under the Lakes Preservation Act most appropriately considers the ordinary water elevation, not the water elevation during drought or flood.  Allen at 242.

 

97.  “Any extension of a pier beyond the point required for the mooring and launching of boats may be considered unreasonable.”  Zapfe at 181.  This consideration is of increasing importance when the total width of the navigable water is modest, such as with the Channel at issue here. 

 

98.  Under the Lakes Preservation Act it is of equal importance to afford the parties the ability to moor and launch boats consistent with the exercise of their individual riparian rights as it is to maintain a safe lane of navigation in the Channel for use by both the parties and the public.

 

99.   The maintenance of a clear navigation lane of 16 feet in the center of the Channel affords an eight and one-half foot wide watercraft to navigate the channel with approximately four feet of free space on each side of the watercraft under power.  The maintenance of this space would further afford a watercraft reaching the end of the Channel a reasonable opportunity to turn around while under power.

 

100.         To maintain a 16 foot navigation lane in the center of the Channel, a pier, boat lift, pier extension, moored watercraft, other appendage, or any combination thereof, may not extend further than 12 feet from the Channel seawall.  

 

 

FINAL ORDER

 

101.         The parties may extend and maintain a pier, boat lift, moored boat or other pier appendage from the Channel seawall to a total combined maximum distance of 12 feet from the Channel seawall[10].

 

102.         Evans’ pier, as well as any boat lift, moored boat or other pier extension, extended from the shoreline of Lot 10 must be situated at least five (5) feet east of the point at which the shared onshore boundary between Lot 10 and Tract B meet the shoreline of the Channel.



[1] Spelling and grammar as in original correspondence.

[2] Bowman testified that Evans was unable to attend the hearing but was willing to accept the Commission’s order in this case.  Bowman also testified that he had agreed to assist Evans in moving his pier, if required.

[3] Findings of fact that may most appropriately be characterized as conclusions of law and conclusions of law that may best be construed as findings of fact shall be so considered.

 

[4] Bowman originally used the southwest side of Evans’ pier extending perpendicular to the end of the Channel with the understanding that this pier was associated with Lots 12 and 13 that he purchased.  Later, upon the realization that the pier belonged to Evans, Bowman continued to use the pier with Evans permission.  Bowman, following discussions that occurred during the prehearing conference, in order to comply with Restrictive Covenant 6 extended a pier parallel to the west side of the Channel from the southwest corner.  Exhibit OO.

[5] Failure of a riparian owner to exercise riparian rights does not extinguish that riparian interest.  See Xanders v. Nixon Trust, 14 CADDNAR 33 (2015).   

[6] The lateral limits associated with Bowman’s, Walls’ and the Herendeens’ exercise of riparian rights along the shoreline of Tract B is not determined by this order.  It might appear reasonable that each person authorized to utilize the shoreline of Tract B would be afforded space correlating to the number of Lots owned; however there was no evidence presented on this issue.

[7] The administrative law judge understands the language contained within quotations to be exactly as written, but the quotations are not taken from an official transcript of the hearing. If the transcript, at a later time, reflects different language the transcript shall be considered the true and accurate record of testimony.

Snyder:  “If the water’s normal, normal lake level, is there any problem getting in and out of the pier now?” 

C. Walls:  “With the way it’s set up now?”

Snyder: “Yeah”

C. Walls: “No”

Snyder: “And if it were only 30 inches from the seawall and the water level was normal would you be able to get in and out?”

C. Walls: “Well, it depends how high the water is.”

Snyder: “OK, but in normal lake level?”

C. Walls: “Uh, Uh, Umm, No. The toon would still sit on the bottom….the one side of the toon closest to the wall would still sit in the muck.” 

Snyder: “So, you’re saying the draft…do you agree with your mother that the draft of that pontoon is two feet?”

C Walls: “Oh, no.  She got kinda flustered there.   She doesn’t understand.  I’d say about 12 inches.” 

Snyder: “OK, so you’re saying it’s less than 12 inches, 30 inches from the seawall where you’re mother’s pier is now?”

Walls: “I didn’t understand that?”

Snyder: “You’re saying that the depth of the water under normal conditions 30 inches from the seawall is less than 12 inches?” 

C. Walls: “Can you run that by me one more time? I’m still not understanding.” 

Snyder: “I just want to know if you go out 30 inches from the seawall where your mother’s pier is, you’re saying it’s less than 12 inches deep?

C. Walls: “The water?”

Snyder: “Yes.”

C. Walls: “Yeah, I would say at 30 inches probably.” 

Snyder: “At 48 inches how deep would it be?”

C. Walls: “Right now it’s probably about two feet.”

Snyder: “Prior to adding the second section to your mother’s pier did you ever have any problems navigating to or away from the pier with the pontoon boat?”

C. Walls: “Sure.”

Snyder: “Was that when the water was low?”

C. Walls: “Yes.”

Snyder: “But if the water was at normal level did you have any problems with a 48 inch wide pier?” 

C. Walls: “Somewhat…it depends on the water depth?”

Snyder: “We’re talking normal water depth.”

C. Walls: “There’s some issues there…it’s a 40 foot channel wide…and it’s tight down in there.” 

Snyder:  "OK, but it wasn’t because of the water depth 48 inches from the seawall it was because it’s a narrow channel.”

C. Walls: “Right.” 

 

[8] The content of this order is not to be construed as offering an opinion with respect to the enforceability of Restrictive Covenant 6.

[9] Some of these riparian owners are not parties to this proceeding.  The determination in this proceeding is not binding on non-parties.

[10] For example, to moor a nine foot wide pontoon boat, the pier to which the boat is moored may extend no more than three feet into the Channel. Similarly, a party installing a 10 foot wide boat lift may affix the boat lift to a pier of a maximum width of only 24 inches.