Recent Caddnar Decisions
WAWA LLC v. Deister, 16 CADDNAR 2 (2021)
Involved in this riparian rights decision is an exploration of factors to be considered in determining the appropriate application of either Principle 2 or Principle 3 of the Natural Resources Commission’s Information Bulletin #56, “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, http://iac.iga.in.gov/iac//20100331-IR-312100175NRA.xml.pdf
Henry v. Underhill and Fidelity and Deposit Co. of Maryland, 16 CADDNAR 1 (2021)
This proceeding considers allegations of Henry, a timber grower, that Underhill, a timber buyer, while harvesting timber under a lawful contract with a third party crossed a property boundary and also harvested timber from Henry’s property without authorization. In this proceeding the evidence revealed that Underhill and the person with whom he had entered a contract had consulted the county surveyor regarding the identification of the property boundary. Other available evidence was insufficient to show what additional action Underhill could have taken to ensure against the unauthorized harvest. Henry was awarded a judgment for the full stumpage value of the timber wrongfully harvested but was not awarded treble damages.
For consideration is a complaint filed by the Department of Natural Resources (Department) to impose civil penalties for violations of the timber buyer licensing laws by Richardson. Respondent Richardson failed to appear for a prehearing conference and also failed to timely respond to a notice of proposed default. Upon the issuance of a Final Order of Default and Notice of Action Necessary to Complete Proceeding, the Department presented evidence in written form. On de novo review, evidence presented by the Department supported the assessment of a civil penalty for violations of IC 25-36.5 in the amount of $70,000 for acts as an unregistered timber buyer and $50,000 for acts as an unlicensed timber agent.
Under consideration in this proceeding was the use of a public way, providing 20 feet of shoreline within a platted subdivision that was dedicated to use by the general public, that abuts the shoreline of Loon Lake. The public way is situated between the lots owned by the Petitioners, Frendewey and Bartuska. Recognizing that the dedication granted easement rights to every member of the public, none of whom may exercise easement rights in a manner that interferes with the exercise of easement rights by any other easement holder, the Commission determined that Brase could not extend a pier and moor a boat lakeward of the public way without creating such interference. Further, the Commission determined that Brase was incorrect in her position that only the municipality to which the dedication was made possessed standing to object to her extension of a pier into the waters lakeward of the public way, observing that the Petitioners did possess standing to initiate this proceeding under the authority of Ind. Code § 14-26-2-23(e)(3) and 312 IAC 11-3-1.
For consideration is a riparian rights dispute on Bass Lake, with Rehlander, a riparian owner, claiming encroachment by off lake easement holders. The owner of property adjacent to Rehlander intervened. The Fulton Circuit Court and the Commission previously addressed one or more issues presented by the parties or their predecessors in interest. In this case, accretion was determined to extend the on shore property line boundary to the shore for Rehlander and the Intervenor. The riparian interests of the parties were determined by extending the on shore property line boundary between Petitioner and Intervenor straight out into the water. Easement holders were determined to possess interests sufficient to use the Petitioner’s riparian rights consistent with their easement and were required to obtain a group pier permit. In addition, clear space, determined to be necessary to preserve navigational safety, was imposed upon the parties.
[NOTE: REHLANDERS FILED FOR JUDICIAL REVIEW ON OCTOBER 19,2020 IN THE STARKE CIRCUIT COURT (75C01-2010-MI-000060).]
Petitioner operates a Class II well in Spencer County. The Department issued a Notice of Violation (NOV) to Petitioner for noncompliance due to a failure to take corrective action for a leaking well that is not under permit to the Petitioner. Petitioner filed for administrative review of the NOV. Upon de novo review, Petitioner’s noncompliance was affirmed upon a determination that a leaking well was previously plugged that is within the area of review of a well under permit to the Petitioner. The Petitioner must perform corrective action that includes submitting a plugging plan for the leaking well to the Department for approval and properly plugging the leaking well in a manner that is consistent with an approved plugging plan.
[NOTE: BIG MAN OIL COMPANY, INC. SOUGHT JUDICIAL REVIEW IN THE SPENCER CIRCUIT COURT (74C01-2010-PL-000412). THE PARTIES FILED AJOINT STIPULATION OF DISMISSAL AND ON NOVEMBER 4, 2020 THE SPENCER CIRCUIT COURT ENTERED ORDER GRANTING DISMISSAL.]
This proceeding considers 312 IAC 8-2-15, which authorizes the Department of Natural Resources (DNR) to issue a license to a person for the use of a public area on a DNR Property for a public meeting, parade, demonstration or ceremony. The event in question was a “raft-up” to be held on Brookville Lake, which qualifies as a DNR Property. The DNR determined that Mr. Gundling, as the applicant, had not demonstrated that the event would not “present or be conducted in a manner that will present a clear and immediate danger to public health or safety”, as required. Mr. Gundling did not seek administrative review of the DNR’s determination that a license was required for his planned event. The Commission, after very critical consideration, affirmed the DNR’s determination.
This proceeding presented several issues for consideration. The Commission concluded that the platters of the First Addition to West Bay had created an easement for the benefit of the lot owners in both the First Addition to West Bay and the Second Addition to West Bay. The decision further concluded that the easement did convey the authority for the lot owners to use the riparian rights associated with the shoreline of the easement on Clear Lake. However, the Commission concluded that due to the spatial constraints associated with the easement the parties to the proceeding were prevented from exercising riparian rights to because to do so would interfere with the easement rights of other lot owners. Further, the decision discusses the need to obtain a group pier permit for any pier that would be used by all of the lot owners who hold rights to use the easement.
On summary judgment, Alliance-Dunes asserted the Department’s termination of the permit application was contrary to law, and disputed the Department’s asserted lack of authority to regulate construction activities at the Lake Michigan shoreline. Subsequent to the initiation of this proceeding, the Department reversed its position and did consider a renewed application presented by the applicant for similar construction efforts. Based on that reconsideration, the disputed issue presented in this case was determined to be moot.
For consideration is a complaint filed requesting administrative review of a Department’s Division of Reclamation classification of certain revisions to Permit #374 as nonsignificant. Petitioner avers the revisions were significant, requiring adherence to notice provisions not required for nonsignificant revisions. On summary judgment the ALJ, as the ultimate authority, ordered that the Petitioner failed to state a claim upon which relief could be granted for two claims. The ALJ denied the Respondent’s position that the Petitioner failed to timely file his administrative review request and that the Petitioner’s claims were moot due to a pending application for permit renewal. Two revisions were found to have been misclassified by the Department. For those revisions, the revisions were remanded for consideration as significant.
For consideration is a complaint filed by the Department of Natural Resources, as a timber grower, against a timber cutter and surety upon the harvest of timber in Yellowwood State Forest. The final judgment of the Commission provided no judgment on damages actually resulting from wrongful activities of 9 West, pursuant to IC 25-36.5-1-3.2(f)(1). A final judgment of the Commission was issued for three times the stumpage value of timber wrongfully cut and appropriated without payment, pursuant to IC 25-36.5-1-3.2(f)(2). The Commission’s final judgment on bond forfeiture was issued for the lesser of the penal sum of the bond and the timber appropriated without payment, with the timber buyer receiving credit toward the judgment against him for payment made by the surety. The Commission’s final judgment on the forfeiture of a certificate of deposit (CD) was issued for the lesser of the penal sum of the CD and the timber appropriated without payment, with the timber buyer receiving credit toward the judgment against him for payment made by the holder of the collateral security.
This Final Order of Default, entered in accordance with Ind. Code 4-21.5-3-24 and 312 IAC 3-1-9, considers a complaint filed by the Department of Natural Resources seeking an award of damages as provided in Ind. Code 14-22-10-6 for the destruction of wildlife following the accidental or negligent release of chemicals or substances into water of the state. The decision discusses the authority of the Natural Resources Commission under Ind. Code 14-10-2-6 in this context.
For de novo consideration is the Department’s ejection of the Petitioners from Turkey Run State Park for a period of one year. The Department provided evidence sufficient to support a determination that the Petitioners removed a ramp from a newly constructed stairway within the park at the Cox Ford Public Access to Sugar Creek, in violation of a state law prohibiting criminal mischief. Petitioner, Colton Lambermont acknowledged that he intentionally enlisted Sugar Valley employees to assist him in removing the ramp. The Department’s ejection was modified by the Commission to delete any reference to a violation of cemetery mischief and to clarify that the ejection applies to corporate employees, personnel, contractors and vendors only when they are acting on behalf of Sugar Valley. As modified, the Commission affirmed the ejection.
This proceeding considers the Department’s authority to prohibit a person from accessing or to restrict a person’s access to a DNR Property under 312 IAC 8-5-3.
For consideration under the Flood Control Act is Russell’s request for administrative review of a Notice of Violation (NOV) issued by the Department for activities within a floodway. Consolidated with the proceeding regarding the NOV is Russell’s request for administrative review of the Department’s denial of the after-the-fact permit application submitted by Russell. Russell’s abode, located within a floodway, was originally constructed before January 1, 1973. Additions to Russell’s abode were constructed without a permit and the after-the-fact permit submitted by Russell failed to include information necessary to obtain an approved permit for the project. The Department’s Motion for Summary Judgment was granted upon a determination that no genuine issue of material fact was presented and that the Department is entitled to summary judgment as a matter of law. Russell is ordered to remove the additions and to notify the Department of completed restoration. Upon a failure by Russell to timely complete restoration, enforcement action by the Department is authorized.
For consideration is a riparian rights dispute on Witmer Lake in LaGrange County. The Englands, riparian owners, claim encroachment by an adjoining riparian owner, Ball. Arends, also riparian owners who own property adjacent to the Englands, are joined as parties at the request of the Englands. The shore is determined to be irregular. The lines forming the boundaries between riparian zones run to divide the total navigable waterfront in proportion to the length of the shores of each owner taken according to the general trend of the shore. The riparian boundary line between the Englands and the Arends and between the Englands and Ball are determined by proration consistent with the Fourth Principle in Information Bulletin #56. A buffer zone must be maintained on either side of each common riparian boundary as established by the order. Administrative Cause No. 17-098W
This decision considers the Department of Natural Resources’ (Department) Complaint seeking the imposition of a civil penalty against Josua Cruse (Cruse), as prescribed by IC 25-36.5-1-2(a) and 312 IAC 14-3-1(a), for his violation of the Timber Buyers Statute. The decision explores the proper interpretation of 312 IAC 14-2-8, which defines the phrase “engaged in the business of buying timber”, and considered aggravating and mitigating factors as set forth in 312 IAC 14-4-3 in determining that the imposition of a $10,000 civil penalty was appropriate under the established facts.
This proceeding addresses a Department of Natural Resources’ (Department) Complaint seeking the revocation of permits issued for oil and gas purposes and the forfeiture of related cash bonds as prescribed by IC 14-37 et seq. In this instance the Respondent, Claybridge Energy, did not contest the allegations contained with the Department’s Complaint. The Final Order authorizes the Department to properly plug and abandon the oil wells associated with the permits and forfeits the cash bonds as well as all equipment on the well sites in favor of the Department in compensation for the costs of plugging and abandoning the wells. The Order further specifies that Claybridge Energy remains liable for all outstanding costs associated with properly plugging and abandoning the wells.
For consideration is a complaint filed by a timber grower against a timber buyer upon the harvest of timber in Putnam County under a timber buyer contract. Subsequent to the issuance of an order on summary judgment, the final judgment of the Commission provided judgment for damages in compensation for damages to fencing resulting from the wrongful activities of the Respondent. No judgment for damages related to trees wrongfully cut or appropriated without payment was made. Administrative Cause No. 17-132F
Considered in this proceeding, initiated in accordance with IC 14-26-2-23(e)(3) and 312 IAC 11-1-3 et seq., is a dispute associated with the exercise of riparian rights. Kiefer, who is the owner of real property extending to the shoreline of Blue Lake, initiated the action challenging the Dillers’ authority to extend a pier from a 10 foot wide platted walk situated adjacent to Kiefer’s property that also extends to the shore of Blue Lake. The decision concludes that both the Dillers and Kiefer possess non-exclusive easement rights in the walk that are shared by other lot owners within the subdivisions; however, neither the Dillers or Kiefer possess an interest in the walk that is sufficient to authorize either of them to extend a pier into Blue Lake from the shoreline of the walk or to moor watercraft in the waters of Blue Lake within the lateral limits of the walk.
Under consideration is a complaint, brought by the Crowes under IC 25-36.5-1-3.2, against a timber buyer, Eiler, for an unauthorized harvest of timber. In this instance Eiler, while harvesting timber under an agreement with the owner of property adjoining the Crowe’s property, crossed a property boundary and harvested six trees, without authorization, from the Crowes’ property. The Commission determined that efforts made by Eiler to identify the property boundary were insufficient and the Crowes were awarded a judgment, that included treble damages, of three times the stumpage value of the six trees harvested. The issue of setoff was a significant consideration. The Commission determined under the evidence presented that compensation received by the Crowes from the adjoining landowner was appropriately set off to the extent of the actual stumpage value. However, because the Crowes not have been awarded treble damages from the adjoining landowner, allowing the compensation received by the Crowes from the adjoining property owner to be set off against the treble damage award entered against Eiler was determined to be inappropriate.
For consideration is a complaint filed by timber growers against a timber buyer and surety upon the harvest of timber in Orange and Crawford County under a timber buyer contract. The final judgment of the Commission provided no judgment on damages actually resulting from wrongful activities of a timber buyer. A final judgment of the Commission, for $214,800, was issued for three times the stumpage value of harvested timber for which payment was not made. The Commission’s final judgment on bond forfeiture was issued for the lesser of the penal sum of the bond and the timber appropriated without payment, with the timber buyer receiving credit toward the judgment against him for payment by the surety. Administrative Cause No. 18-099F.
At issue in this proceeding is a Notice of Violation issued under the Flood Control Act, I.C. 14-28 and I.C. 14-25.5. The decision explores a variety of activities occurring within a floodway for which a permit is necessary while also considering the means by which certain activities, particularly the removal of logjams, can be carried out without the need to obtain a permit.
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