Recent Caddnar Decisions
Under consideration in this proceeding is the Petitioners’ request to remove Eddy Lake, located in Marshall County, Indiana, from the Commission’s listing of public freshwater lakes. See “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Seventh Amendment), http://www.in.gov/legislative/iac/20170531-IR-312170269NRA.xml.pdf. The decision focuses on the application of I.C. 14-26-2-24, which requires the Commission to establish and maintain a nonrule policy statement listing all of Indiana’s public freshwater lakes and explores the criteria by which a body of water is identified as a public freshwater lake.
This proceeding considers administrative review of the employment termination of Knoy, a Conservation Officer, by the Department of Natural Resources (Department) after determining that Knoy’s conduct violated the Rules of Conduct identified within General Order ADM002, the Conservation Officer Oath and the Code of Ethics. The NRC determined that the Conservation Officer Oath and the Code of Ethics are not included within a standard operating procedure, written directive, general order or specific order that would have obligated Knoy’s compliance to avoid sanctions. However, the NRC concluded that Knoy violated the Rules of Conduct for Conservation Officers identified within General Order ADM002. Despite minor irregularities in the investigation process and Knoy’s unblemished disciplinary history, the evidence was sufficient to support the Department’s action to terminate Knoy’s employment as a Conservation Officer for “just cause”. Administrative Cause No. 17-058L
[NOTE: ON JUNE 29, 2018, WOODHAMS, et al. SOUGHT JUDICIAL REVIEW IN THE MIAMI SUPERIOR COURT I (52D01-1806-MI-253).] For consideration are notices of violation issued under the authority of IC 14-27-7.5, commonly referred to as the “Dam Safety Act”, relating to six dams located in the Hidden Hills Subdivision in Miami County, Indiana. Multiple persons holding fee title to the property upon which each of the six dams are constructed were determined to be owners of the dams. Miami County and the Miami County Board of Commissioners were determined to be an “owner”, pursuant to IC 14-27-7.5-4, of five of the dams for the reason that county roads traversing the dams had been adopted into the county highway system. This decision discusses the history of the Dam Safety Act and considers retroactive application of one section of the Act amended in 2002. The Natural Resources Commission determined that each of the dams is within the jurisdiction of the Department of Natural Resources and affirmed each of the Notices of Violation. The fee title holders upon whose land each respective dam is constructed were determined to be jointly and severally liable for either repairing or reconstructing and maintaining the dam to a lawful condition or breaching and permanently decommissioning the dam. Miami County’s liability for the repair, reconstruction and maintenance of each of the five dams for which it was determined to be an owner was limited to matters associated with road construction and integrity. Administrative Cause No. 14-146W
For consideration is DNR’s approval of Triad’s application for Phase III bond release following the conclusion of mining operations in Knox County. Petitioner disputes that bond release is appropriate and claims that “prime farmland” requirements and criteria have not been met, drainage and terracing are in violation of components necessary for bond release and that piecemeal bond release is inappropriate for property on which Petitioner claims an interest. The Petitioner failed to offer sufficient evidence to show the bond release was in error. Administrative Cause No. 16-138R
This proceeding considers a riparian rights dispute initiated by Hodges who owns Lot 5 in the Ivan Warrens Plat on Beaver Dam Lake (“Subdivision”) in Kosciusko County that is situated adjacent to the shoreline of Beaver Dam Lake. A six foot wide path (“Path”), dedicated in the 1947 Subdivision Plat, extends along the northern boundary of Lot 5 to the water’s edge. The plat does not expressly identify the intended purpose of the Path. The Lampkins are the owners of Lots 11 and 12 in the First Addition to Ivan Warrens Plat on Beaver Dam Lake (“Addition”), which lots are not situated adjacent to the shoreline of Beaver Dam Lake. Hodges complained that the Lampkins had placed a pier lakeward of the Path, without authority and in a manner that it infringed upon the exercise of her riparian rights. It was found that quit claim language that first appeared in the chain of title to Lot 11 and 12 in 2011, providing for a “non-exclusive easement and right to use” the Path for ingress and egress and for the mooring of boats to a pier that described an ongoing use of the Path for that purpose from 1986 until 2011 did not convey to the Lampkins any greater right to use the Path than is possessed by any other person under the terms of the Subdivision’s 1947 plat. Because the Path is dedicated to public use, it was concluded that the Lampkins’, as well as any other person’s, use of the Path is permissive, not adverse or exclusive as required to establish a prescriptive easement. It was also determined that the Lampkins’ use of the Path for the placement and maintenance of a pier and the mooring of a boat interferes with the use of the Path by other members of the public and further interferes with Hodges’ use of her riparian rights associated with the shoreline of Lot 5. Administrative Cause No. 17-061W
Tallian v. DNR & NIPSCO, 14 CADDNAR 180 (2017)
In this proceeding, the Commission accepted an agreement entered into between the petitioners and Northern Indiana Public Service Company (NIPSCO) to which the Department of Natural Resources did not object. The agreement specified that without any admission of fact or law on the merits of the dispute that the permit issued to NIPSCO by the Department would be terminated. Administrative Cause Number 17-081W
This proceeding considers a riparian rights dispute involving two properties situated within William Chapman’s Addition to Tri-Lakes Resort, which was platted in 1921, and one property situated adjacent to but outside the boundary of the platted Addition. Within the Addition a six foot wide public walk runs parallel to the shoreline of Shriner Lake that separates the two Addition properties from the waters of the Lake. The evidence established that the Addition property owners have used the shoreline associated with the public walk for the placement of temporary piers within the lateral limits of their property boundaries since as early as 1962. Based upon the evidence it was concluded that the Addition owners possess a property interest in the public walk sufficient to qualify them as persons who may exercise riparian rights for the purpose of placing and maintaining temporary piers from the public walk.
Based upon the evidence presented, it was also concluded that the N.G. Hatton Trust had, through its use combined with the use of its predecessors in title, established a prescriptive easement in the riparian area attributed to the property situated adjacent to but outside the platted Addition.
It was also ordered that certain permanent structures be removed from the waters of Shriner Lake. Further, the decision discusses the effect of accretion upon property ownership unique to this proceeding and the resulting impact upon riparian boundaries. Administrative Cause Number 16-142W
At issue in this proceeding is the requirement of an oil and gas owner or operator to pay an annual well fee not later than February 1 for each permit held on November 1 of the preceding year. In this instance, on February 1, when the annual well fees at issue came due, the permits for which Mid-Central was required to pay the annual well fees were the subject of a proceeding initiated by the Department seeking revocation on the allegation that Mid-Central had engaged in a pattern of violations. The Commission observed that the purpose of an annual well fee is to assist in offsetting the costs of properly plugging and abandoning a well when a permit is revoked as a result of an owner’s or operator’s failure to comply with applicable laws. The Commission concluded that Mid-Central remained liable to pay the annual well fees despite the fact that the permits were the subject of an action seeking revocation. Administrative Cause No. 17-018G
For consideration is the Department’s allegation that Mid-Central engaged in a pattern of violations sufficient to justify the revocation of its remaining seven permits. The evidence established that Mid-Central failed to comply with the terms of an agreement, accepted as the Commission’s Final Order in a previous proceeding, which required Mid-Central to properly plug and abandon three wells. The failure to plug the wells resulted in the revocation of those permits. Thereafter, the Department issued Mid-Central an additional Notice of Violation for failure to pay required annual well fees. Evidence also established that during the pendency of this proceeding, Mid-Central removed all equipment from the well sites associated with the permits causing the wells to be inoperable. The Commission determined that Mid-Central’s actions qualified as a pattern of violations supporting the revocation of its remaining seven permits. Administrative Cause No. 16-153G
[NOTE: ON JUNE 20, 2017, PROSSER SOUGHT JUDICIAL REVIEW IN THE FULTON CIRCUIT COURT (25C01-1706-MI-355). ON OCTOBER 4, 2018, THE FULTON CIRCUIT COURT REVERSED THE COMMISSION. ON NOVEMBER 5, 2018 DNR FILED NOTICE OF APPEAL IN THE INDIANA COURT OF APPEALS (18A-MI-02644).] For consideration is DNR’s denial of a permit to construct a concrete seawall along a section of the shoreline on Lake Manitou, concluded to be an area of special concern. Petitioner did not provide evidence showing the area was a developed area because the Permit area contains characteristics of an area of special concern and does not fall within the definition of the upland side of a manmade channel. The Permit area is not a manmade channel because it is not a watercourse and dredging was not shown to increase the total length of the shoreline around the lake. Administrative Cause No. 16-041W
At issue in this proceeding is a riparian rights dispute arising between parties who had previously entered into a mediated agreement by which their riparian zone boundaries and the position of their piers within the riparian zones had been decided. The Commission was tasked with resolving the dispute that arose with respect to the implementation of the mediated agreement, which was not supported by an actual survey but was based upon inexact data and measurements. Administrative Cause No. 15-075W