The water recreation structure permit issued to Michael J. Baker and known as the Broad Ripple Park Permit is affirmed.
FINDINGS OF FACT
1. On March 17, 1994, the White river Greenway Development Board (the "Board") filed an objection to the recreational structure permit (the "Permit") known as the Broad Ripple Park permit.
2. On April 26, 1994, a preheating conference was held at which time the Residents of Hidden Harbor (the "residents") represented by Mr. Robert Zalkin were granted claimant status.
3. The permit was issued to Mr. Michael J. Baker sometime before April 1, 1994, and allowed placement of a portable ski slalom course on the White river in Marion County just north of Broad Ripple Park.
4. The permit area was inspected by ICO R. Gregory Dye on February 24, 1994. He recommended approval with modification of not allowing the course to be in place on weekends or holidays.
5. The permit was approved by John Stivers, director, division of law enforcement, department of natural resources.
6. IC 4-21.5, IC 14-1, 310 IAC 0.6-1 and 310 IAC 2-27 apply to this proceeding.
7. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3.
8. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
9. Pursuant to IC 13-2-22, the Natural Resources Commission (NRC) is the ultimate authority for this type proceeding.
10. Since the permit was issued prior to the claimant's objection, the burden of persuading the administrative law judge that the permit should not be issued is placed upon the claimant. (See Brown V. DNR and Peabody Coal Company, 6 Caddnar 136 (1992) citing an NRC decision dated May 20, 1992 for Amax Coal Company v. DNR and Jack Jarrett, 89-099R).
11. At hearing, ICO Dye testified that the slalom course was light weight, portable, and its placement under the terms of the permit would create no safety hazard.
12. Mr. Zalkin testified that water skiing made the use of canoes dangerous; that motorboat noise was a big problem for the residents; that erosion of the bank of the White River was occurring; and that motorboat traffic caused wildlife to leave the area.
13. The Sierra Club Heartlands Gp. (the "club") submitted a written statement for consideration under IC 4-21.5-3-25(f).
14. Neither the written statement submitted by the club, nor the testimony given by Mr. Zalkin are as persuasive as the testimony given by ICO Dye.
15. ICO Dye's testimony goes directly to the placement of the ski slalom course allowed by the permit.
16. Those in opposition to the permit speak in terms of why water skiing should be prohibited on the White River in Marion county.
17. Mr. Zalkin and the club raised significant issues in regard to water skiing in the area.
18. However, water skiing in the area in question is not presently illegal.
19. Whether or not water skiing in general should be allowed in this area is a matter of policy and not a matter to be adjudicated by an administrative law judge.
20. The evidence indicates that the permit is in the hands of a safety conscious individual (Mr. Baker), and that its placement on weekdays that are non-holidays is not unsafe.
21. Since the granting of this permit gives some structure to water skiing that would still occur absent the permit, such granting might actually improve safety at the location.