CADDNAR


[CITE: Venderley v. DNR, Lake George Cottagers Assoc., 4 CADDNAR 46 (1987)]

 

[VOLUME 4, PAGE 46]

 

Cause #: 87-014L

Caption: Venderley v. DNR, Lake George Cottagers Assoc.
Administrative Law Judge: Drew
Attorneys: Venderley; McInerny, DAG; Parrish
Date: July 28, 1987

ORDER

 

Respondent's Motion for Summary Decision is granted and Respondent's approval of Claimant's application for various recreational events, subject to the restrictions stated in Exhibit "A", is affirmed.

FINDINGS OF FACT

 

1. On February 13, 1987, Claimant requested administrative review regarding his request to Respondent to hold various water skiing events on Lake George in Steuben County, Indiana.

 

2. IC 4-22-1 and 310 IAC 0.5-1 apply to this proceeding.

 

3. The Department of Natural Resources is an agency as defined in IC 4-22-1. The Natural Resources Commission (the "Commission") is the ultimate authority of the Department in respect to this proceeding.

 

4. The Commission has jurisdiction over the subject matter and parties to this proceeding.

 

5. On May 8, 1987, Respondent filed a motion for Summary Decision pursuant to 310 IAC 0.5-1.11.[FOOTNOTE 1]

 

6. Claimant's original request to Respondent to hold ski shows and slalom tournaments on Lake George was initially approved providing that all skiing activities be held within the time limitations required by 310 IAC 2-23-1; namely, that no watercraft were to exceed a 10 mph speed limit between the hours of 6:30 p.m. and 10:00 a.m. (See attached Exhibit "A".)

 

7. On April 2, 1987, House Bill 1064 of the 105th session of the Indiana General Assembly was signed into law. This bill provides that no person shall operate a boat at a speed in excess of 10 mph between the hours of 6:30 p.m. to 10:00 a.m. on lakes of more than 400 acres and less than 1,000 acres lying on the boundary of Indiana and another state.

 

8. House Bill 1064 applies directly to Lake George.

 

9. House Bill 1064 also contained an emergency clause which caused the act to take effect immediately upon signing.

 

10. The passage of House Bill 1064 precludes the Department from granting the relief Claimant seeks.[FOOTNOTE 2]

 

11. Claimant is restricted from operating boats in excess of 10 mph on Lake George during prescribed times.[FOOTNOTE 3]

FOOTNOTES

 
1. Respondent actually filed a "Motion to Dismiss." However, pursuant to 310 IAC 0.5-1-11, Respondent's motion was treated and shall continue to be considered as a Motion for Summary Decision.

2. It is a basic principle of administrative law that an administrative agency cannot adopt or enforce regulations that add to or detract from a statute enacted to cover the same set of circumstances or purposes. [Hill v. Review Board, 124 Ind. App. 83, 112 N.E. 2d 218 (1953)]; [Indiana Department of State Revenue v. Colpaert Realty Corp., 231 Ind. App. 563, 109 N.E. 2d 415 (1953)].

3. Once House Bill 1064 became law the Department was powerless to grant Claimant's request. Claimant, however, has other avenues of appeal available to him rather than seeking relief solely through the administrative process. Having exhausted his administrative remedy, Claimant may seek relief in a court of competent jurisdiction.