CADDNAR

[CITE: Jennings v. Parkison, et al., 14 CADDNAR 86 (2016)]

[VOLUME 14, PAGE 91]

Cause #15-031W

Caption: Jennings v. Parkison, et al.

Administrative Law Judge: Jensen

Attorneys: Kuchmay (Spaw); Wooding (DNR)

Date: April 21, 2016

FINAL ORDER

83. Permit PL-22739 is revised to require the three foot wide by 26 foot long pier section installed perpendicular to the main pier to be located two feet north of the southern boundary line of the Permittee Respondents’ riparian zone and two feet south of the northern boundary line of the Permittee Respondents’ riparian zone.

84. Permit PL-22739’s approval, as revised, shall be subject to the following additional special conditions:

a. From the point 122 feet lakeward of the shoreline to a point 150 feet lakeward of the shoreline, no temporary structures, pier extensions or watercraft shall be placed within two feet of the common line of the riparian zones for Lots 86 and 87 or Lots 91 and 92.

b. No temporary structures, pier extensions, or watercraft exceeding eight and one-half feet in width may be located on the south side of the Permit PL-22739 pier for a distance of 122 feet lakeward of the shoreline.

c. No temporary structures, pier extensions, or watercraft exceeding six and one-half feet may be located on the north side of the Permit PL-22739 pier for a distance of 122 feet lakeward of the shoreline.

d. Jet skis moored perpendicular to the Permit PL-22739 pier shall be removed from jet ski lifts manually.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Procedural History and Jurisdiction

1. On February 20, 2015, the Petitioners, David and Diana Jennings (collectively referred to as “Jennings”), filed correspondence with the Natural Resources Commission (“Commission”) seeking administrative review of the Department of Natural Resources’ (“Department”) approval of an application for a permit identified as PL-22623 (referred to as “Permit PL-22623”).

2. Permit PL-22623 was applied for jointly by Debra Ann Cozmas Parkison, Ricky and Connie Stout (collectively referred to as “Stout”), Roger and Beverly Meyer (collectively referred to as “Meyer”), Phillip and Karen Lake (collectively referred to as “Lake”), and the Page and Carole Liggett 2005 Trust (referred to as “the Trust”).

3. During the pendency of this proceeding, Sam Parkison, the husband of Debra Ann Cozmas Parkison, was added as a party (collectively Sam and Debra Ann Cozmas Parkison are referred to as “Parkison”).

4. Collectively, Parkison, Stout, Meyer, Lake and the Trust will be referred to as “the Permittee Respondents”.

5. On February 23, 2016, the Petitioners, Jeff and Holly Spaw (collectively referred to as “Spaw”), by counsel, Jason M. Kuchmay, filed their Petition for Administrative Review with respect to the Department’s approval of Permit PL-22623 to the Permittee Respondents.

6. Permit PL-22623 authorized the installation and maintenance of a temporary pier lakeward of the shoreline of Big Long Lake, located in LaGrange County. More particularly, the pier would be situated along a thirty foot (30’) stretch of shoreline associated with Lots 87, 88, 89, 90 and 91 in Block 8 of Long Lake Park. Jennings and Spaw contended that the installation of a pier, as authorized by Permit PL-22623, would encroach into the riparian zones of other adjacent shoreline owners and would interfere with ingress and egress associated with piers installed under permits previously issued to each of them by the Department.

7. The State of Indiana exercises “full power and control of all of the public freshwater lakes in Indiana” holding them “in trust for the use of all of the citizens of Indiana for recreational purposes.” Indiana Code § 14-26-2-5(d). The Department is the administrative agency responsible for the administration of Indiana Code §§ 14-26.

8. Big Long Lake is a public freshwater lake. Indiana Code § 14-26-2-3 and “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Fourth Amendment), http://www.in.gov/legislative/iac/20140924-IR-312140381NRA.xml.pdf.

9. As relevant here, a person is prohibited from placing a temporary or permanent structure “over, along or lakeward of the shoreline or water line of a public freshwater lake” unless the person first obtains a permit from the Department. Indiana Code § 14-26-2-23(a).

10. The Commission is the ultimate authority with respect to actions of the Department. Indiana Code § 4-21.5-1-15 and 312 IAC 3-1-2.

11. The Commission possesses jurisdiction over the subject matter of this proceeding and the persons of the parties.

12. The Jennings’ request was initially identified as Jennings v. Parkison et. al, Administrative Cause Number 15-031W while the Spaw Petition was originally identified by the Commission as Spaw v. Parkison et. Al., Administrative Cause Number 15-032W. A prehearing conference was scheduled and conducted for both proceedings after providing notice to the parties. By the agreement of all parties the two proceedings were consolidated into the instant proceeding under the Commission’s Administrative Cause Number 15-031W, as captioned in this order.[1]

13. At a subsequent status conference the parties reported that the Permittee Respondents had filed a new permit application seeking Department authorization to install and maintain a pier along the same section of shoreline in a configuration different than what was approved by Permit PL-22623. With the understanding that approval of an application allowing the installation of a pier with a different configuration could effectively render Permit PL-22623 moot the administrative law judge observed that efforts to proceed with the administrative review associated with Permit PL-22623 would be inefficient. It was suggested that further action be deferred until the Department made a determination with respect to the Permittee Respondents’ new application. The parties generally concurred; however, Spaw sought a stay of effectiveness of Permit PL-22623 during the period of deferral. The parties agreed that they would attempt to reach an agreement regarding both the merits of this proceeding as a whole and terms of a temporary stay of effectiveness. A mediator was assigned to assist the parties; however, a stay hearing was also scheduled.

14. The parties, on July 1, 2015, filed notice of resolution with respect to the temporary stay of effectiveness of Permit PL-22623 and the stay hearing was vacated. The parties attempted to participate in mediation but after an extended period of time the mediator reported an inability to coordinate a date for conducting a mediation session.

[VOLUME 14, PAGE 92]

15. During a telephone status conference conducted on November 19, 2015, the parties advised that the Permittee Respondents’ second permit application, identified as PL-22739 (Permit PL-22739) [2] had been approved by the Department with the specification that Permit PL-22739 “replaces PL-22623 as the valid permit for the property identified under Project Description on page 1 of this permit; PL-22623 is now considered null and void by the Indiana Department of Natural Resources.”[3]

16. During the November 19, 2015 status conference the following observations and party agreements were achieved:

Administrative Law Judge Jensen inquired of the Petitioners whether the objections associated with PL-22739 were substantially similar to the objections to the predecessor permit, whether all of the parties were familiar with the objections maintained by the Petitioners and whether the witness and exhibit lists previously filed by any party would require revision based upon the issuance of PL-22739 or the objections to that permit. All parties indicated understanding of the Petitioners’ objections to PL-22739. The Petitioners and Permittee Respondents stated that the witness and exhibit list would not require revision. The Department noted that its witness and exhibit list would require revision only to the extent that substitutions of witnesses may be necessary to identify personnel who were involved in the review of PL-22739 who may be different than the staff involved in the review of PL-22623.

The administrative law judge observed that judicial economy would be served by such action and was accepting of that result as long as the parties would not be prejudiced and agreed to such action. The parties agreed to substitute the administrative review of the replacement permit, PL-22739, into this existing proceeding and the administrative hearing presently scheduled for December 8, 2015 could proceed.

Administrative Law Judge Jensen noted that substantial compliance with the Administrative Orders and Procedures Act was required.

…

Consequently, the administrative law judge noted the following ORDERS:

1. If additional requests for administrative review were received regarding PL-22739 from other parties, the status of this proceeding would require alteration.

…

3. The existing petitioners are required to file statements of contention not later than November 30, 2015. The filing of such statements shall be deemed to comply with the requirements of Indiana Code 4-21.5-3-7(a)(1).

4. If necessary, the Department shall file its revised witness and exhibit list not later than November 30, 2015.

Report of Telephone Status Conference and Joinder of Sam Parkison as a Respondent, issued November 25, 2015.

17. Spaw timely filed their statement of contentions pertaining to Permit PL-22739 on November 23, 2015 and Jennings did the same on November 30, 2015.

18. The sole matter for consideration in this proceeding is related to Permit PL-22739 issued by the Department to the Permittee Respondents on November 17, 2015.

19. Spaw identifies several factors about the pier authorized by PL-22739 with which they do not object but identify limited concerns with respect to the authority granted to the Permittee Respondents to situate four (4) jet ski lifts and two (2) watercrafts on the south side of the pier. Spaw avers that the location of these watercraft on the pier present navigational and safety concerns when considered in conjunction with authorities granted to them by the Department’s issuance of a permit identified as PL-21697 (hereafter referred to as “the Spaw Permit”).[4]

20. Jennings also expressed concern with respect to navigation and safety of life and property associated with the Permittee Respondents authorization to place four (4) watercraft within the first 122 feet lakeward of the shoreline on the north side of the pier without imposing size limitations upon these boats. Jennings notes that “any craft wider than 6.5 ft would be in the 5 ft buffer zone.” [5] Jennings also avers that the pier, as authorized by PL-22739 infringes upon their property rights as previously established.[6]

21. Notice was provided to the parties and an administrative hearing addressing the issues identified in Spaw’s and Jennings’ statements of contentions was conducted on February 16, 2016.

Findings of Fact [7]

22. Permit PL-22739 authorizes the Permittee Respondents to install a temporary pier on a 30 foot section of shoreline extending lakeward into the waters of Big Long Lake for a total distance of 150 feet. The main pier extends 122 feet lakeward of the shoreline at which point a perpendicular pier section extends 11.5 feet north to the northern boundary of the Permittee Respondents’ riparian zone shared with Jennings and 11.5 feet south to a point four feet north of the Permittee Respondents’ southern riparian zone boundary shared with Spaw. Extending further lakeward of the perpendicular pier section are two-three feet wide by 25 feet long pier sections that form two 25 feet long by 10 feet wide docking stations at the lakeward end of the Permit PL-22739 pier. Exhibit A.

23. Special Conditions Numbered 8 and 9 require the Permittee Respondents to maintain five feet of clear space on each side of the Permit PL-22739 pier for a distance of 122 feet from the shoreline. Exhibit 6, Exhibit A.

24. Permit PL-22739 specifies that “details of the project are contained in information and plans received at the Division of Water on May 12, 2015, June 30, 2015 and September 21, 2015. Id. Within the plans received by the Division of Water on May 12, 2015 is a diagram of the Permit PL-22739 pier that identifies the proposed docking stations to be maintained on the pier. Id.

[VOLUME 14, PAGE 93]

25. The Department’s documents associated with the application for Permit PL-22739 includes the following diagram, which purports to show the Permit PL-22739 pier in the center, along with the Spaw Permit pier to the left and the Jennings Permit pier to the right.

Exhibit J1, (duplicates the same diagram as contained within the Department’s Exhibit A and Spaw Exhibit 6A)

26. Within the initial 122 feet of the Permit PL-22739 pier there will be docking stations for four (4) watercraft situated parallel to the north side of the pier within the first 122 feet. Permit PL-22739 does not expressly restrict the size of these watercraft but the scale of the diagram indicates that these watercraft would be approximately 10 feet long by 6.5 feet wide. Id. The distance between the north edge of the Permit PL-22739 pier and the Permittee Respondents’ north riparian zone boundary shared with Jennings is 11.5 feet. Id. Special Condition number 8 of Permit PL-22739 requires the Permittee Respondents to maintain five (5) feet of clear space on the north side of the pier within the first 122 feet lakeward of the shoreline. Exhibit 6, Exhibit A.

27. Compliance with Permit PL-22739’s Special Condition number 8 has the effect of prohibiting the attachment of any temporary structure, pier extension or the mooring of watercraft greater than 6.5 feet wide on the north side of the pier.

28. The south edge of the Permit PL-22739 pier is located 15.5 feet from the south riparian zone boundary shared with Spaw Id.

29. On the south side of the Permit PL-22739 pier, within the initial 122 feet lakeward of the shoreline, the diagram depicts a total of six docking stations. Id. According to the scale of the diagram, four (4) of the docking stations are depicted as approximately five feet wide by nine feet long situated perpendicular to the Permit PL-22739 pier between points 20 feet and 45 feet lakeward of the shoreline. Id. From the testimony it is reasonably concluded that these docking stations will be used by the Permittee Respondents for the mooring of jet skis. The remaining two (2) docking stations on the south side of the Permit PL-22739 pier’s initial 122 feet are each depicted to be approximately 9 feet wide by 25 feet long and are situated parallel to the pier extending lakeward from points at approximately 50 feet and 90 feet lakeward of the shoreline. Id.

30. Similarly, on the south side, within the first 122 feet lakeward of the shoreline, the Permittee Respondents are required to maintain five (5) feet of clear space between temporary structures, pier extensions or moored boats and the Permittee Respondents’ south riparian zone boundary shared with Spaw. Relying exclusively upon Permit PL-22739’s Special Condition number 9 the Permittee Respondents may place any temporary structure, pier extension or moored watercraft of 10.5 feet in width or less on the south side of the Permit PL-22739 pier. Id.

31. In the most lakeward 28 feet of the Permit PL-22739 pier the diagram indicates that two watercraft will be moored in docking stations with sizes of 10 feet wide by 25 feet long. Id. and Exhibit 6B.

32. Permit PL-22739 does not require the Permittee Respondents to maintain any clear space between the pier, other temporary structures, pier extensions or moored watercraft and the riparian zone boundary shared with Jennings for the most lakeward 28 feet of the pier. Id. However, the Permittee Respondents are prohibited from placing or maintaining temporary structures, pier extensions or moored watercraft within four feet of the riparian zone boundary shared with Spaw.

33. The overall length of the Permit PL-22739 pier was not raised as an issue by either Jennings or Spaw.

34. Jennings expressed the only concern with respect to the most lakeward 28 feet of the Permit PL-22739 pier, which was concern about the Department’s failure to require the maintenance of any clear space between the north side of the Permit PL-22739 pier and the shared riparian zone boundary between Jennings and the Permittee Respondents.

35. Spaw is one of a group of permittees who hold the Spaw Permit that authorizes the installation and maintenance of a pier on a 36 foot section of the shoreline of Big Long Lake in a riparian zone adjacent to the south side of the riparian zone that is at issue with respect to Permit PL-22739. Exhibit 1, Skilbred, et al. v. Spaw, et al., 13 CADDNAR 99, 99 (2013).

36. Jennings is one of a group of permittees who hold a previously issued permit identified as PL-21704 (hereafter referred to as “the Jennings Permit”) that authorizes the installation and maintenance of a pier on a 36 foot section of the shoreline of Big Long Lake in a riparian zone adjacent to the north side of the riparian zone that is at issue with respect to Permit PL-22739. Id.

37. The diagram identified in the Department’s records, as duplicated in Finding 25 fails to reflect that Special Condition number 5 of the Spaw Permit authorizes “possible use of the north side of the Spaw Permit pier for small watercraft” provided “watercraft moored on the north side may not protrude more than eight feet from the north side of the pier in order to maintain the five foot setback…” Exhibit A (Jason Kuchmay email to Alysson Olinger dated September 15, 2015); Skilbred at 106.

38. In demonstrating the incomplete nature of the diagram submitted with the application for Permit PL-22739 and maintained in the Department’s records, as duplicated in finding 25, Spaw offered a copy of the same diagram identifying with hand drawn boxes the actual current use of the Spaw Permit pier, which includes a “swim area”, and varying sizes of moored watercraft identified as “S1”, “S2”, along with two hand drawn boxes identified as “S3”, most of which is located on the north side of the Spaw Permit pier, closest to the riparian boundary shared with the Permittee Respondents.

Exhibit 6B, (duplicates the same diagram as contained within the Department’s Exhibit A)

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39. As related to the Jennings Permit pier the diagrams, Exhibit J1 (Finding 25) and Exhibit 6B (Finding 38), are identical.

40. Jeff Spaw (J. Spaw) grew upon on lakes and completed a safe watercraft operation course at the age of 12. J. Spaw has been operating watercraft for 46 years and has extensive experience with the operation of jet skis, pontoon boats and ski boats. J. Spaw’s watercraft operation has been almost exclusively on Big Long Lake. Testimony of J. Spaw.

41. The current use of the Spaw Permit pier, as depicted in finding 38, includes the attachment of jet ski lifts, identified as “S3”, and the mooring of pontoon boats, identified as “S1” and “S2”. Testimony of Jeff Spaw. The jet ski lifts are affixed to the Spaw Permit pier parallel to the main pier. Id. The pontoon boat identified as “S2” is also situated parallel to the main pier and does not utilize a boat lift. Id. Nearest the shoreline on the north side of the Spaw Permit Pier is a swim area for the Spaw’s four grandchildren, currently ages eight, six, three and one. Id. These uses are consistent with the authorizations in the Spaw Permit that allows for the placement of temporary structures and moored watercraft extending eight feet north of the north side of the Spaw Permit pier.

42. Also in the diagram duplicated in Finding 38, Spaw identifies the jet ski lifts depicted on the south side of the Permit PL-22739 pier as “R5” and the two larger watercraft situated on the south side of the Permit PL-22739 pier as “R3” and “R4”. Testimony of Spaw.

43. J. Spaw testified that one objection to Permit PL-22739 relates to the inability of the “R4” watercraft to navigate between the Spaw watercraft identified as “S2” and the Permittee Respondents’ watercraft identified as “R3”. J. Spaw, who acknowledged that most pontoon boats are eight and one-half feet in width, estimated that there would be 9.5 inches of space on either side of the “R4” watercraft, expressing that on Big Long Lake that was simply not sufficient space to safely navigate a boat between stationary objects except on an extremely calm day. Testimony of J. Spaw.

44. It is not clear how Spaw concluded that only 9.5 inches would exist on each side of the “R4” watercraft as it maneuvered between the “S2” and “R3” watercraft.

45. James J. Hebenstreit (Hebenstreit) is an Assistant Director in the Department’s Division of Water with over 42 years of experience. Presently, he supervises the Groundwater Section, Water Rights Section and, as relevant to this proceeding the Permitting Section, which is responsible for permitting associated with construction in floodways and on public freshwater lakes. Hebenstreit has extensive experience with disputes involving riparian rights noting that the Department’s interest focuses on allowing a riparian owner to exercise their rights while also balancing the exercise of those rights against the interests of the general public. Testimony of Hebenstreit.

46. Hebenstreit explained that he and the staff in the Division of Water involved in reviewing Permit PL-22739 were knowledgeable about the Jennings Permit and the Spaw Permit from previous review and approval. Hebenstreit also conveyed understanding of the overall situation and the challenges presented in allowing all the property owners to be provided piers in light of the existing space limitations. Consequently, in reviewing the pier configuration proposed by the Permittee Respondents the Department attempted to consider the space allowances in conjunction with navigational requirements of watercraft moored on the north side of the Spaw Permit pier and the south side of the Permit PL-22739 pier. Exhibit A1.

47. Officer James Price (Price) is a conservation officer with 20 years of experience who is familiar with Big Long Lake and is presently assigned to Steuben County. As relevant to this proceeding, Price was assigned to review the application for Permit PL-22739 with respect to navigation and safety concerns.

48. Price indicated his belief that there is a total of 28 feet of space between the Spaw Permit pier and the Permit PL-22739 pier. Price recognized that anything moored on the north side of the Spaw Permit pier is limited to eight feet in width and he estimated that anything moored on the south side of the Permit PL-22739 pier would be eight and one-half feet wide. Therefore, with boats moored adjacent to each other on the south side of the Permit PL-22739 pier and on the north side of the Spaw Permit pier, in the spaces depicted as “R3” and “S2” on the diagram duplicated in Finding 38, the boats would consume 16.5 feet of the total 28 feet. Price calculated that this leaves 11.5 feet of clear space for navigation of a boat with a width of eight and one-half feet. Consequently, in the opinion of Price there would be a total of three feet, one and one-half feet on each side of the boat being navigated from the mooring space depicted as “R4” on Spaw’s diagram. Exhibit 6B. Price’s calculations are accurate; however, they are based partially on speculation.

49. Permit PL-22739 places no express size limitation upon either the “R3” or “R4” watercraft that may be moored or pier extensions that may be affixed to the south side of the Permit PL-22739 pier and as noted previously, Permit PL-22739’s Special Condition number 9 has the effect of limiting the width of these watercraft, temporary structures or pier extensions to 10.5 feet…not eight and one-half feet. Exhibit 6, Exhibit A.

50. Navigating a 10 foot wide watercraft from the “R4” position between Spaw’s eight foot wide watercraft in the “S2” position and a 10 foot wide watercraft or structure in the “R3” position as depicted on the Finding 38 diagram would require a 10 foot wide watercraft to navigate within exactly 10 feet of clear space. Such action would reasonably be considered imprudent, if not impossible.

51. Spaw expressed no interest in having the “R4” watercraft position eliminated but did seek to have a condition imposed upon Permit PL-22739 to limit the width of watercraft moored in the location of “R4”.

52. Spaw also expressed objection to the positioning of the Permittee Respondents’ jet ski lifts perpendicular to the Permit PL-22739 pier immediately adjacent to the swim area used by their young grandchildren. J. Spaw testified that removing a jet ski from a lift under power necessitates “gunning” the engine to a certain degree, which, in this case, would direct an active propeller towards or into the swim area of the Spaw grandchildren. Testimony of J. Spaw.

53. Spaw expressed that the jet ski lifts should either be placed parallel to the Permit PL-22739 pier in order to direct the propellers in a direction other than into the Spaw swim area or if the jet ski lifts remained perpendicular to the Permit PL-22739 pier a condition should be placed on Permit PL-22739 requiring the Permittee Respondents to remove the jet skis from the lifts manually, or while not under power.

54. Price testified that jet skis are typically removed from the most commonly used type of jet ski lift manually and not while under power. Hebenstreit acknowledged that backing a jet ski off a lift under power in the direction of other watercraft or in the direction of swimmers posed a “legitimate concern” that could be alleviated by a condition requiring the jet ski to be removed from the lift manually or while not under power.

55. For the majority of pier permit reviews the Department authorizes only the pier without knowing or becoming involved in addressing the size or number of watercraft that may be moored to the pier. Testimony of Hebenstreit. With respect to the application for Permit PL-22739, the diagram provided by the Permittee Respondents did depict the watercraft and the Department considered the application with the watercraft, as depicted. Id.

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56. Even though it is not customary for the Department to restrict the size of watercraft moored at piers when approving a pier permit, on occasion the Department has imposed restrictions on the size of watercraft. As relevant to this proceeding is the Department’s Special Condition number 5 in the Spaw Permit restricting watercraft moored on the north side, closest to the Permittee Respondents, to eight feet in width or less. Skilbred at 106. Similarly, the Jennings Permit prohibits the mooring of watercraft or the extension of temporary structures on the south side of the Jennings Permit pier, closest to the riparian zone boundary shared with the Permittee Respondents. Skilbred at 107.

57. However, Permit PL-22739 does not expressly limit the size of watercraft, temporary structures or pier extensions that the Permittee Respondents may moor or affix to the Permit PL-22739 pier.

58. Price testified that he most typically works in conjunction with congested lakes and small riparian zones that customarily involve tight navigational spaces. In his opinion, the Permit PL-22739 pier provides ample navigational space to provide for the safety of persons and property and will not interfere with the riparian rights of either Spaw or Jennings.

59. Price referred to 312 IAC 4-8, which specifies that 10 feet is an appropriate lane of navigation. Price acknowledged that this administrative rule applies formally only to group piers but observed that the administrative rule provides a more objective general standard for consideration with respect to all types of permit reviews.

60. From his testimony it is reasonably concluded that Price’s opinion is based upon the belief that watercraft, other than the jet skis, to be situated on the south side of the Permit PL-22739 pier will be no wider than eight and one-half feet.

61. Hebenstreit and Price acknowledged that navigation between the piers would be “tight” but testified to their belief that a pier placed in accordance with Permit PL-22739 would not create a hazard to life or property.

62. David Jennings (D. Jennings) offered objection to the fact that Permit PL-22739 provides for no clear space between the Permit PL-22739 pier and the shared riparian zone boundary between the Permittee Respondents and Jennings with respect to the most lakeward 28 feet of the Permit PL-22739 pier.

63. Hebenstreit explained that the riparian zone associated with the Jennings Permit has the benefit of open waters to the north and the riparian zone associated with the Spaw Permit has the benefit of open waters to the south. Therefore, with the riparian zone associated with Permit PL-22739 situated between the Jennings Permit pier and the Spaw Permit pier the space limitation was of greater impact and the only possible alleviation was to extend the pier further lakeward from the shoreline. Testimony of Hebenstreit.

64. The Department’s Division of Law Enforcement expressed concern with extending the Permit PL-22739 pier further than 150 lakeward of the shoreline. Id.

65. Hebenstreit observed that the Department would customarily require a minimum of five feet of clear space on each side of a riparian zone boundary. However, as an accommodation in this instance, the Department believed it reasonable to eliminate this requirement for the lakeward-most 28 feet of the pier that extends beyond the lakeward end of the other piers. In the opinion of Hebenstreit, a riparian zone “only extends to what is reasonably needed to accommodate an individual’s pier and boats” and the riparian zones associated with the Jennings Permit and the Spaw Permit were therefore established by the lengths of those previously permitted piers.

66. The Department’s considerations are appropriate; however the evidence is void of any explanation for the lack of clear space between the Permit PL-22739 pier and the riparian zone boundary with Jennings while requiring four feet of clear space between the Permit PL-22739 pier and the riparian zone boundary with Spaw.

67. D. Jennings testified that the Permit PL-22739 pier, as authorized, would preclude the ability to ever increase the length of the Jennings Permit pier while still allowing navigational space for the watercraft allowed to be moored on the north side of the Permit PL-22739 pier.

68. Jennings owns a home, other than their residence, on a Lot in Long Lake Park that shares easement rights within the 30 feet of shoreline where the Jennings Permit pier is located. D. Jennings observed in his testimony that the sale of this Lot and home could necessitate the extension of the Jennings Permit pier to accommodate additional watercraft for the owners of that Lot. The Permit PL-22739 pier, therefore, in the opinion of D. Jennings interferes with the riparian rights associated with that Lot, which is presently owned by Jennings.

69. There is no evidence in the record upon which to base a determination that the Department considered the possible future desire to extend the Jennings Permit pier.[8] However, Jennings provided no evidence to support his conclusion that the approval of Permit PL-22739 renders it impossible for the Jennings Permit pier to be reconfigured to accommodate additional watercraft.

70. It is observed that Permit PL-22739 does not expressly restrict the Permittee Respondents from exceeding the 30 foot width of their riparian zone with respect to the most lakeward 28 feet of the pier.

Conclusions of Law

71. Certain conclusions reached in Skilbred are equally applicable in this instance:

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

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

….

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

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

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

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

Skilbred at 103.

72. The Department’s conclusions that navigability on the south side of the Permit PL-22793 pier will be “tight”, is correct. However, under the situation presented in this instance, and with respect to the Spaw Permit pier and the Jennings Permit pier, this condition has proved unavoidable.

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73. It is accepted that one and one-half feet on each side of a watercraft navigating between other stationary objects is sufficient for safe navigation within 10 feet of clear space.

74. To provide one and one-half feet of clear space on each side of a watercraft navigating between the south side of the Permit PL-22739 pier and the Spaw Permit pier requires the Permittee Respondents’ watercraft moored on the south side of the Permit PL-22739 pier be no wider than eight and one-half feet.

75. Taking every effort possible to avoid having swimmers come in contact with active watercraft propellers is elementary. The testimony of Price indicates that jet skis are typically removed from jet ski lifts manually and not under power. Hebenstreit acknowledged the legitimacy of Spaw’s concern about “gunning” the motor on a jet ski sending the propeller into the Spaw swim area in order to exit the lift under power.

76. Safety of swimmers must take precedence.

77. In its consideration into the merits of a permit application, “the Department may consider any factor, including cumulative effects of the proposed activity upon…the interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake.” Indiana Code § 14-26-2-23(c)(5).

78. The Department’s witnesses offered no testimony explaining what, if any, actual review was conducted specifically concerning the rights of Jennings to potentially to expand the use of the Jennings Permit pier in the future. However, the evidence establishes that the Department fully considered the competing interests of the Permittee Respondents, Spaw and Jennings as well as the interests of the public.

79. The evidence in the record is not sufficient to support a conclusion that the pier authorized by Permit PL-22739 will eliminate any possible reconfiguration of the Jennings Pier permit to accommodate an additional watercraft.

80. The Petitioners, as the parties seeking action by the Commission, bear the burden of proof in this instance. Jaeco, Inc. v. DNR, Div. of Reclamation, 5 CADDNAR 60 (1989).

81. It is observed that the watercraft moored on the north side in the final 28 feet of the Permit PL-22739 pier is situated directly on the riparian zone boundary between the Permittee Respondents and Jennings leaving no clear space whatsoever. Conversely, the pier extension on the south side of the Permit PL-22739 pier in the final 28 feet of the pier is situated four (4) feet north of the riparian zone boundary shared by the Permittee Respondents and Spaw.

82. The difference in clear space on the north and south for the final 28 feet of the Permit PL-22739 pier does not appear to be required for navigation. Therefore, fair consideration of the competing riparian rights of the Permittee Respondents, Spaw and Jennings requires that the clear space associated with the most lakeward 28 feet of the Permit PL-22739 pier be divided equally.

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 83 through 84, has been relocated to the “Final Order” section at the beginning of this document.]

[1] See Report of Prehearing Conference, Notice of Consolidation and Notice of Status Conference issued May 11, 2015.

[2] It is acknowledged that a pier of the type authorized by PL-22623 and PL-22739, might more typically be placed under the general licensing authority of Indiana Code § 14-26-2-23(e) and 312 IAC 11-3-1(b). However, the parties to this proceeding are required by a Commission Final Order issued in Spaw v. Ashley, 12 CADDNAR 233 (2010) to obtain an individual permit.

[3] The parties agreed to allow the Department to provide a copy of Permit PL-22739 to the administrative law judge.

[4] The Commission issued a final order approving the Department’s issuance of PL-21967 in Skilbred, et al. v. Spaw, et al., 13 CADDNAR 99 (2013). (Affirmed on judicial review by the Allen Superior Court in Cause Number 02-D01-1305-MI-9514.)

[5] Jennings allege that a failure to require a five foot (5’) setback on the south side of the pier and the potential for boats to moor to the south side of the pier’s most lakeward twenty-eight feet (28’) present possibly infringements upon Spaw. These issues will not be addressed unless they were appropriately raised by Spaw on their own behalf.

[6] Jennings is also the holder of a permit previously issued by the Department, PL-21704, that was affirmed by the Commission in Skilbred, et al. v. Spaw, et al., 13 CADDNAR 99 (2013). (Affirmed on judicial review by the Allen Superior Court in Cause Number 02-D01-1305-MI-9514.)

[7] 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.

[8] Spaw did not raise this issue in their petition as a matter for consideration.