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Cause #: 04-062W
Caption: French v. Abad, et al.
Administrative Law Judge: Lucas
Attorneys: Price and Hasler; Whybrew, Hahn, and Treadway; Knotek
Date: May 21, 2004
ORDER OF TEMPORARY RELIEF TO MINIMIZE THE LIKELIHOOD OF AN UNREASONABLE IMPEDIMENT TO NAVIGATION OR A HAZARD TO SAFETY
TEMPORARY ORDER
By May 28, 2004:
1. The Respondents (other than Frederick Hillis, Margey M. Miller, and the Department of Natural Resources) are ordered to either:
A. Remove portions of the Shilling Easement pier so the pier does not exceed 150 feet in length from the shoreline of Lake Maxinkuckee; or
B. Identify the lakeward extremity of the Shilling Easement pier:
(1) In accordance with the uniform state waterway marking system under 33 C.F.R. 66.10, including the placement of a navigation light under 33 C.F.R. 66.10-35; or
(2) As otherwise agreed by the Division of Law Enforcement, Department of Natural Resources.
2. The Respondents (other than Frederick Hillis, Margey M. Miller, and the Department of Natural Resources) are ordered to remove the boat station described in Finding 24 and shall refrain from mooring any boat at that location.
3. French is ordered to remove any boat station, boat lift, or other improvement used to moor the personal watercraft described in Finding 25 and shall refrain from mooring either of the personal watercraft or another vessel at that location.
4. French and the Respondents (other than Frederick Hillis, Margey M. Miller, and the Department of Natural Resources) are each provided until August 1, 2004 to either:
A. Reduce the length of their respective piers to no more than 150 feet; or
B. Under the Lakes Preservation Act, file a completed license application with the Department of Natural Resources, Division of Water, for their respective piers.
BRIEF STATEMENT OF THE FACTS AND LAW
1. The proceeding was initiated when, on March 17, 2004, M. Anne French ("French") filed her "Verified Petition, Request for Temporary Order and Request for Mediation to Resolve Dispute Among Riparian Landowners Regarding the Usage of the Shoreline of Lake Maxinkuckee".
2. Lake Maxinkuckee is located in Marshall County, Indiana and is a "public freshwater lake" under IC 14-26-2-3.
Lake Maxinkuckee is subject to IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act"). The Natural Resources Commission (the "Commission") has adopted rules at 312 IAC 11 to assist in the administration of the Lakes Preservation Act.
3. In addition, the waters of Lake Maxinkuckee are "public
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waters" under IC 14-8-2-226 and are subject to IC 14-15-3 (sometimes referred to as the "Watercraft Operations Act"). The Commission has adopted rules at 312 IAC 5 to assist in the administration of the Watercraft Operations Act.
4. The Lakes Preservation Act and the Watercraft Operations Act (and rules adopted under those acts) are administered by the Department of Natural Resources (the "DNR"). The Commission is the "ultimate authority" for the DNR under IC 14-10-2-3 and IC 4-21.5-1-15.
5. The proceeding is governed by IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The Commission has adopted a rule in multiple sections at 312 IAC 3-1 to assist in its administration of AOPA. Stephen Lucas is the Commission's administrative law judge for the proceeding under AOPA and 312 IAC 3-1.
6. The Respondents are Billye Abad; James Crisman; Sue Crisman; Barbara B. Lambert; William P. Lambert; Lydia C. Walsh Declaration of Trust; Nicholette M. Walsh; Patrick M. Walsh; William J. Walsh, Jr. Declaration of Trust; Jennifer Swindal; Stephen Swindal; Marcia P. Adams; Marcia P. Adams c/o William C. Adams; William C. Adams; Noreen J. Oosterbaan Trust; Just D, Ltd.;Richard L. Fischer Revocable Trust; Virginia Lee Fischer Revocable Trust; James B. Shea, III; Jennifer Shea; Frederick Hillis; Margey M. Miller; and, the DNR.
7. Each of the Respondents has been served by U.S. Mail with notice of this proceeding, or is represented by an attorney who has entered a written appearance, or both.
8. The Commission has jurisdiction over the subject matter and over the persons of French and the Respondents.
9. For consideration is a dispute involving the propriety of the placement of seasonal or temporary piers at a site on the south side of Lake Maxinkuckee.
10. More particularly, for consideration is a temporary pier extending from a lot owned by French at 348 South Shore Drive in Culver (the "French" pier) and the next pier to the east (the "Shilling Easement" pier). The Respondents other than Frederick Hillis, Margey M. Miller, and the DNR have or may claim interests in the Shilling Easement pier. The French pier and the Shilling Easement pier and their vicinities are referred to as the "subject area".
11. Although several provisions of the Lakes Preservation Act and the Watercraft Operations Act are relevant to pier placement on Lake Maxinkuckee, the most pertinent is IC 14-26-2-23. This section provides for dispute resolution and authorizes the Commission to adopt rules for "the placement of a temporary or permanent structure...over, along, or within a shoreline or waterline" of a public freshwater lake.
12. A temporary structure is defined by rule at 312 IAC 11-2-25. As applicable to this proceeding, the definition provides:
(a) "Temporary structure" means a structure that can be installed and removed from the waters of a public freshwater lake without using a crane, bulldozer, backhoe, or similar heavy or large machinery.
(b) Examples of a temporary structure include the following:
(1) A pier that:
(A) is supported by auger poles or other poles that do not exceed three and one-half (31/2) inches in diameter and rest on the lake bed; and
(B) is not mounted in or comprised of concrete or cement....
13. Under 312 IAC 11-3-1(b), a temporary pier qualifies for placement under the terms of a general license if the pier is characterized by or does each of the following:
(1) Be easily removable.
(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.
(3) Not unduly restrict navigation.
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(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.
(5) Not extend more than one hundred fifty (150) feet from the legally established or average normal waterline or shoreline.
(6) ...[N]ot extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the legally established or average normal waterline or shoreline.
(7) Not be a marina.
(8) Be placed by or with the acquiescence of a riparian owner.
14. An aggrieved person may seek administrative review of the placement, pursuant to a general license, of a temporary pier. 312 IAC 11-3-2(a). Where that occurs, the Commission will consider the configuration of the pier and its relationship to other piers and structures. Matters that are considered include the correlative rights of riparian owners (including persons, such as easement holders, who are the beneficiaries of riparian rights). The public trust is also considered, including the impact of pier placement upon safety, the environment, and the enjoyment of public waters. Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992), Piering v. Ryan and Caso, 9 Caddnar 123 (2003); and, Snyder, et al. v. Linder, et al., 9 Caddnar 45 (2002).
15. A complete resolution of issues may require a professional survey and the application of legal principles to precisely delineate the boundaries of riparian rights lakeward of the shoreline. See Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984) and Nosek v. Stryker, 103 Wis.2d 633, 309 N.W.2d 868 (1981 Wis.) applied in Rufenbarger v. Lowe, et al., 9 Caddnar 150 (2004).
16. Exhaustive inquiry into these principles may be required to bring a full resolution to the instant dispute.
17. The scope of administrative review currently under consideration is narrower but of great import to the parties and to the general public. For immediate consideration is whether the placement of a pier or related structure, within the subject area, may cause an unreasonable impediment to navigation or pose a hazard to safety. "Report of Prehearing Conference, Notice of Telephone Status Conference, and Notice of Hearing on Temporary Relief" entered on May 10, 2004.
18. Following a hearing, an administrative law judge may grant temporary relief, under IC 4-21.5-4, to address such an emergency. A hearing for this purpose was conducted in Peru, Indiana on May 20, 2004. The resulting order must include a brief statement of the facts and the law that justifies an agency decision to take the specific action under IC 4-21.5-4. This brief statement of the facts and the law is made pursuant to IC 4-21.5-4-2.
19. Evidence received at hearing indicates the French pier extends approximately 155 feet lakeward from the shoreline of Lake Maxinkuckee and that the Shilling Easement pier extends approximately 228 from the shoreline. The DNR has granted neither pier a site-specific license under the Lakes Preservation Act. Both piers are disqualified from a general license by 312 IAC 11-3-1(b)(5). A license is required under the Lakes Preservation for both piers, but neither pier is licensed.
20. The Watercraft Operations Act generally places no speed limit on a person operating a vessel on a lake that contains more than 300 acres. A person who operates a vessel on Lake Maxinkuckee is generally not subject to a speed limit.
21. A person who operates a motorboat within 200 feet of the shoreline of a lake is, however, prohibited from traveling at greater than idle speed. IC 14-15-3-17. "Idle speed" is the "slowest possible speed, not exceeding five (5) miles per hour, that maintains steerage so that the wake or wash created" caused by a vessel "is minimal". IC 14-8-2-129.
22. The Shilling Easement pier extends beyond the near-shore idle speed area into the unlimited-speed public waters of Lake
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Maxinkuckee.[FOOTNOTE a.]
23. Lt. John Sullivan is an experienced officer with the DNR's Division of Law Enforcement and is the commanding officer for the Division's District 1 that includes Lake Maxinkuckee. Lt. Sullivan testified the length of the Shilling Easement pier poses a hazard to navigational safety, particularly to members of the boating public traveling on Lake Maxinkuckee at higher speeds. Lt. Sullivan testified an appropriate flashing light should at once be placed to identify the hazard posed by the length of the Shilling Easement pier. The evidence is persuasive that a safety hazard is presented, both to the parties and to the boating public, and that the Shilling Easement pier should be identified with an appropriate flashing light.
24. During recent years, the Shilling Easement pier has been expanded westward with a boat station placed at a diagonal near the lakeward terminus of the pier. Based upon a very preliminary estimation of the delineation of boundaries of riparian interests, Lt. Sullivan testified the boat station appears to exceed the east-west boundaries of the Shilling Easement. The boat station may be identified on Claimant's Exhibit B as the eastern-most extension of the Shilling Easement pier, and at the time of the photograph, the boat station did not contain a vessel.
25. During recent years, the French pier has been expanded eastward with the addition of a slip or slips and walkways, and two personal watercraft are moored on the eastern extremity of her slips. The personal watercraft may be identified on Claimant's Exhibit B by their generally rectangular shape and pink covers.
26. The configuration of the Shilling Easement pier and the French pier, with improvements and moorings, currently allows only for a narrow passage between them for the navigation of vessels entering or exiting a slip.
27. Where human safety is at issue, and a full evaluation of site conditions is incomplete, a cautious approach must properly be taken. The evidence is persuasive that a safety hazard may be presented, primarily to the parties, between the two piers and near their lakeward extremities.
28. As more particularly described in the Temporary Order, relief must properly be accorded to address the potential for an unreasonable impediment to navigation or hazard to safety.
FOOTNOTE
a. Testimony at the May 20, 2004 hearing indicated an orange buoy is traditionally placed on the lakeward side of the subject area. An aerial photograph, that includes the subject area, was admitted into evidence as Claimant's Exhibit B. The photograph was taken on May 16, 2004 and shows an orange buoy roughly 300 feet from the shoreline of Lake Maxinkuckee. The justification for the orange buoy was not clearly articulated by testimony, but it is unlicensed. If the intent of the buoy is to inform the public where the shoreline idle-speed zone begins, the buoy provides misinformation.