CADDNAR

 

[CITE: Stites, et al. v. RCI Development & DNR, 11 CADDNAR 381 (2008)]

 

[VOLUME 11, PAGE 381]

 

Cause #: 06-184W

Caption: Stites, et al. v. RCI Development & DNR

Administrative Law Judge: Lucas

Attorneys: Thomas (Claimants); Hazelrigg (RCI); Knotek (DNR)

Date: July 16, 2008

 

[NOTE: ON AUGUST 18, 2008, STITES, RELUE AND WALTERS FILED FOR JUDICIAL REVIEW IN THE STEUBEN CIRCUIT COURT (76C01-0808-MI-274). ON DECEMBER 19, 2008, THE STEUBEN CIRCUIT COURT ENTERED ITS ORDER DISMISSING THE CASE FOR LACK OF SUBJECT MATTER JURISDICTION. ON AUGUST 12, 2009, THE COURT OF APPEALS ENTERED ITS ORDER (NOT FOR PUBLICATION) AFFIRMING THE LOWER COURT.]

 

FINAL ORDER

 

The license for a “group pier” by the Department of Natural Resources in favor of RCI Development LCC is affirmed under conditions approved by the Department and as more particularly depicted in Finding 18.  The number of boats which may lawfully be moored to the group pier is limited to a maximum of 36.  As used in this order, the term “boat” has the meaning set forth in 312 IAC 1-1-4.5.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Statement of the Case and Jurisdiction

 

1. Scott Stites (“Stites”), David M. Relue (“Relue”), Mark Pontecorvo (“Pontecorvo”) and Peter J. Walters (“Walters”) separately initiated timely requests with the Natural Resources Commission (the “Commission”) for administrative reviews of license PL-20374 issued by the Department of Natural Resources (the “DNR”) to RCI Development LLC (“RCI”) under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”), and under 312 IAC 11-1 through 312 IAC 11-5, rules adopted to assist with implementation of the Lakes Preservation Act, for construction activities within the Third Basin of Crooked Lake (the “Third Basin”) in Steuben County, Indiana.

 

2. Crooked Lake in Steuben County is a “public freshwater lake” as the term is used in IC 14-26-2-3 and 312 IAC 11-2-17 and is subject to the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  Piering v. Ryan and Caso, 9 Caddnar 123 (2003).  A bay, cove or basin is part of a “public freshwater lake” under the Lakes Preservation Act.  Sims, et al. v. Outlook Cove, LLC and Outlook Cove Homeowners Ass’n, 10 Caddnar 258, 265 (2006).  The “Third Basin” is part of Crooked Lake and is subject to the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.

 

3. Stites, Relue, Pontecorvo and Walters are collectively referred to as the “Claimants”.  RCI and the DNR are collectively referred to as the “Respondents”.  The Claimants and the Respondents are collectively referred to as the “Parties”.

 

4. Service of the requests for administrative review by the Claimants was made upon the Respondents.

 

[VOLUME 11, PAGE 382]

 

5. By agreement of the Parties, the separate proceedings initiated by the four Claimants were consolidated as captioned above in Administrative Cause Number 06-184W.  “Report of Concurrent Prehearing Conference and Notice of Telephone Status Conference”, p. 1 (December 7, 2006).

 

6. The DNR is the licensing and regulatory authority for the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  See, most notably, IC 14-26-2-23.

 

7. The Commission is the “ultimate authority” for the DNR under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted under 312 IAC 3-1 to assist the Commission with its implementation of AOPA.  IC 14-10-2-4 and IC 4-21.5-1-15.

 

8. The Commission appoints administrative law judges to conduct proceedings under AOPA.  IC 14-10-2-2.  Stephen L. Lucas was appointed the administrative law judge for this proceeding. 

 

9. AOPA provides in IC 4-21.5-3-32 that an agency is required to index final orders and may rely upon indexed orders as precedent.  A decision interpreting the Lakes Preservation Act or 312 IAC 11-1 through 312 IAC 11-5 is also governed by IC 4-21.5-3-27(c).  The Commission has adopted Caddnar as its indexing of final orders under AOPA.  Establishment of Division of Hearings; Indexing of Final Adjudicative Agency Decisions; Transcript Fees, Information Bulletin #1 (Second Amendment), DIN: 20061011-IR-312060438NRA, Indiana Legislative Services Agency (October 13, 2006).  Decisions indexed in Caddnar are cited in this Order.

 

10. Administrative review of a DNR licensing determination is conducted de novo.  Rather than deferring to the DNR determination, de novo review requires the administrative law judge to consider and apply proper weight to the evidence presented.  Crafton, et al. v Hopkins, 10 Caddnar 227 (2006) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).

 

11. At each stage of a proceeding, the party requesting that an agency take action or asserting an affirmative defense has the “burden of going forward” and the “burden of persuasion” (sometimes collectively referred to as the “burden of proof”) with the evidence.  IC 4-21.5-3-14(c).

 

12. Where the DNR issues a license authorizing activities under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, “the burden of proof rests with the person seeking to set aside” the license.  Wawasee Property Owners, et al. v. Wawasee Real Estate & DNR, 11 Caddnar 88, 94 (2007).

 

[VOLUME 11, PAGE 383]

 

13. Administrative review in this proceeding was conducted de novo.

 

14. RCI’s original application for a “group pier” license was submitted to the DNR in February 2006 and would have included three structures for the mooring of boats and a fourth for pedestrian fishing.  Each of these piers would have extended at a perpendicular from the shoreline.  The main section of the piers would have been five feet wide with three feet wide slips attached to moor the boats.  The longest pier for mooring boats was the central of the three and would have extended approximately 156 feet from the shoreline.  From this central pier, and near its lakeward end, would have been an extension at a right angle (in other words, roughly parallel to the shoreline) that would have been approximately 200 feet long.  This extension would have continued nearly to the most southeasterly of the three mooring piers, with the effect of creating the perception of a rectangular harbor within RCI’s control.

 

15. The DNR reviewed the application and reduced the dimensions of the group pier.  The longest pier was reduced from a maximum 156 feet to 149 feet from the shoreline, and the mouth was opened to lessen the perception of a private rectangular harbor.  As described in a “Certificate of Approval”[1] issued on September 19, 2006, the license would have authorized the following configuration:

 

Four (4) temporary group piers will be placed in front of the Common Area frontage to provide access and mooring facilities for Beach Club Estates.  Piers ‘A’, ‘B’ and ‘C’ will be 4’ wide.  Pier ‘D’ will be 10’ wide.  Pier ‘A’ will extend 99’ into the lake and will have three (3) 3’ wide walkways extending 20’ feet from the northwest side of the pier.  Pier ‘A’ will accommodate 6 water craft and will be located approximately 52’ southeast of the northwest property line.  Pier ‘B’ will extend 149’ feet into the lake and will have five (5) 3’ wide walkways extending 20’ from the northwest side of the pier.  In addition, Pier ‘B’ will have a 4’ wide by 50’ long extension parallel with the shoreline on the southeast side of the pier.  The extension will have two (2) 3’ wide walkways extending 20’ feet from both the northeast and southeast sides of the extension.  Pier ‘B’ will accommodate 20 water craft and will be located approximately 111’ southeast of the northwest property line.  Pier ‘C’ will extend 141’ into the lake and will have five (5) 3’ wide walkways extending 20’ from the southeast side of the pier.  Pier ‘C’ will accommodate 10 water craft and will be located approximately 152’ northwest of the southeast property line.  Pier ‘D’ will extend 40’ into the lake and will be used as a fishing pier.  Pier ‘D’ will not be used to accommodate water craft.  Pier ‘D’ will be located approximately 77’ northwest of the southeast property line.  The piers will be supported by auger poles, which will be placed in the lakebed using hand held tools.  Also, 4 to 5 tree stumps at or near the shoreline will be removed….

 

[VOLUME 11, PAGE 384]

 

16. The initial prehearing conference was conducted on December 6, 2006.  During the conference, the “Claimants indicated they were concerned that safety hazards would be posed by the length of temporary piers approved in [PL-20374].  As stated by Peter Walters, ‘All of us have one common concern’, and ‘we do not wish to be obstructionist.’  The license would allow ‘docks’[2] to extend ‘very radically’ into the open waters of the Third Basin of Crooked Lake.  ‘We are sure…that there will surely be fatalities’ if the piers are developed as authorized.  The placement of the piers as authorized would alter the ‘quality of life’ because boaters would not be able to maintain traffic patterns ‘as we’re accustomed.  It’s a major event for the lake.’  Scott Stites added that the longest pier currently placed in the area is 74 feet long.  If piers are allowed to extend 149 feet in the lake as authorized by [PL-20374], accidents will result.  He was concerned the DNR would then consider restricting the entire Third Basin to…an idle speed zone, with the resulting loss of an ideal skiing and with the diminution of property values.  The other Claimants expressed similar concerns.”  “Report of Concurrent Prehearing Conference and Notice of Telephone Status Conference”, p. 2 (December 7, 2006).

 

17. On April 20, 2007, the administrative law judge made an entry entitled “Orders regarding Preparation for and Conduct of Hearing”.  This entry reflected that RCI would seek a modified version of PL-20374, as described in the course of this proceeding, rather than in the form originally approved by the DNR.  The DNR had indicated the modified version was approvable by the agency (as was the version described in Finding 15), but the Claimants continued to have objections.  On March 9, an entry entitled “Report of Second Telephone Status Conference with Supplemental Matters, Notice of Third Telephone Status Conference and Notice of Hearing” had been made to help memorialize a March 6, 2007 status conference.  The March 9 entry reflected in part 1C: “In response to a question from the Claimants, RCI Development indicated it intended to pursue the modified license rather than the original license.  The terms of the modified license are therefore for consideration in this proceeding.”  In the April 20, 2007 entry, the administrative law judge ordered the DNR to cause “a true and accurate copy of the modified license to be filed by May 1, 2007.”

 

18. On April 23, 2007, the DNR responded to the April 20 entry by the filing of a “Notice of Filing of Modified Proposal for Pier Configuration of Respondent RCI Development LLC of February 12, 2007”.   Included with the April 23, 2007 filing was the following drawing:

 

[VOLUME 11, PAGE 385]

 

 

 

19. The configuration depicted in Finding 18 is the configuration at issue in this proceeding.  The configuration was an attempt by RCI to accommodate the Claimants’ concerns for potential impacts to high-speed boating as outlined in Finding 16.  None of the parties objected to the entry described in Finding 17.  The configuration depicted in Finding 18 is within the scope of an approvable license under the application of de novo review. 

 

[VOLUME 11, PAGE 386]

 

Public and Riparian Rights, including Management of Boating Operations

 

20. First Sergeant William Snyder has served as a Conservation Officer with the DNR since 1973.  He has enforced boating laws in Steuben County since 1975 and has been on every public freshwater lake in Steuben County.  Snyder has performed enforcement duties on the Third Basin.  He was a member of the General Assembly’s Lake Management Work Group which is charged with assessing usage issues on public freshwater lakes and recommending policies to address current and future challenges.

 

21. Snyder testified that one of his professional responsibilities with the DNR was to review the potential impacts of facilities, for which a license is sought under the Lakes Preservation Act, on the riparian rights of neighbors and on the rights of the public to use a public freshwater lake.

 

22. Snyder testified that for “group piers”, and for individual piers in crowded areas, he reviews the available space and the amount of facilities and traffic which would be concentrated in that space.  “One of the first things”[3] he does is review how facilities and traffic would impact the license applicant’s neighbors and their riparian rights.  Unless an applicant has an agreement with a neighbor, Snyder testified he would make a “negative response” if the result would be to encroach upon the neighbor’s riparian zone.  Secondly, he would review whether an application would have the effect of segregating a portion of public waters for the private use of the applicant’s clients.  Where there is a “taking or an appearance of taking of” public waters, his comments would also be negative toward the application. 

 

23. In response to a question by the Claimants, Snyder testified he was not limited to a review of navigational issues as they pertained to entry into the high-speed boating area of the general public.  He would also evaluate the effect of navigation upon neighbors, and there were numerous instances where the relationship to neighbors was a primary issue, but conflicts with neighboring riparian owners was not a major issue with the RCI application.  “I look at it in all forms and manners and not just out into the deep water or out into the high-speed traffic.”

 

[VOLUME 11, PAGE 387]

 

24. Snyder testified he viewed negatively the application described in Finding 14 because a narrow opening between the longest pier, and the pier southeast of the longest pier, gave the appearance of private exclusivity to the rectangular area bounded by those piers.  The configuration gave the appearance of a private taking of public waters.

 

25. Neil David Ledet testified he also reviewed a license application for the construction of “group piers” for the potential impact on public use.  For a group pier, he would “try to point out issues that might relate to excessive piers that are basically converting private water to public use.”  The first proposal as described in Finding 14 had a “very long L-shape” to the pier.  In reviewing this proposal, he was concerned for the impact to “open space” available for public use.  Also, this proposal had 36 slips but appeared to demonstrate a capacity for mooring more than 36 boats.  He sought to clarify the intentions of RCI and to achieve greater specificity through the licensure process, incorporating a limitation on the number of boats which could be moored as a condition of the license.

 

26. Sgt. Snyder said that similarly to the approach expressed by Ledet in his testimony, he also typically seeks specificity regarding the number and location of boats to be moored in a group pier.  He sought this specificity from RCI as a condition of the license.  

 

27. On cross examination by the Claimants, Ledet testified he originally recommended denial of the license application.  One of the reasons for changing his position to a recommendation of approval was that RCI subsequently reduced the lineal frontage of the piers resulting from the former long L-shaped pier.  Also, the opening to the area between the longest pier and the pier to the southeast of the longest pier was widened, and the modification would offer a visual perspective that was less discouraging of public usage.  He testified the DNR did not have a formula for determining the degree of these modifications.

 

28. Snyder testified that his concerns for configuration of the license application described in Finding 14 were resolved for the license as described in Finding 15.  The opening was widened, and the appearance of converting public water to private usage was ameliorated.  This issue was also adequately addressed for the license described in Finding 18 that is at issue.

 

29. As testified by both Ledet and Snyder, modifications from the original license application were made to reduce the length of the L-shaped pier and to open what had appeared to convert public waters to a private rectangular bay.  These modifications are memorialized by the license described in Finding 18 and support the public trust within the Lakes Preservation Act.  The preponderance of the evidence is the DNR properly factored and implemented its responsibilities with respect to the public trust.  A similar result would have applied to the licensed described by Finding 15.

 

[VOLUME 11, PAGE 388]

 

30. Snyder testified his primary subject of review for pier licensure is directed to navigational safety issues.  Applicants sometimes seek authorization for piers that extend 175 feet or 185 feet from the shoreline.  With the statutory restriction on high-speed motorboat operations within 200 feet of the shoreline, piers of this length can present navigational safety issues.  Snyder testified he generally seeks to limit piers to not more than 150 feet from the shoreline.  Because the license application described in Finding 14 would have authorized a pier that extended 154 feet from the shoreline, he commented negatively upon this application.  Neither the license described in Finding 15 and previously approved by the DNR, nor the license described in Finding 18 and at issue in this proceeding, would authorize a pier that would extend more than 150 feet from the shoreline.  With the designs of the group pier described in Finding 15 and in Finding 18, including the limitation to mooring of 36 boats and a limitation of pier length to less than 150 feet from the shoreline, he testified his professional opinion was that the configuration would provide adequately for navigational safety.

 

31. Scott Stites testified to considerable practical experience in the operation of motorboats on the Third Basin and on public waters more generally.  He expressed the opinion that the pier lengths authorized by the license described in Finding 15 and previously approved by the DNR, and the license described in Finding 18 and at issue in this proceeding, would pose an unreasonable hazard to navigation safety.  Stites demonstrated a level of expertise which is beyond that of an ordinary layperson with respect to navigation and boating safety.

 

32. First Sgt. William Snyder is, however, the only professional law enforcement officer to offer an opinion as to navigational safety issues.  He is a long-time resident of Steuben County, well familiar with navigational matters on the public waters of Steuben County including the Third Basin, with considerable expertise in boating safety and boating laws.  Snyder’s testimony regarding navigational safety issues is persuasive. 

 

33. The group pier described in Finding 18 that is at issue, including the limitation to mooring of 36 boats and a limitation of pier length to less than 150 feet from the shoreline, is a configuration which provides adequately for navigational safety.  The same result would apply for the group pier described in Finding 15.  The preponderance of the evidence supports issuance of the group pier as configured in Finding 18 and would also have supported issuance of the group pier as configured in Finding 15.  The Claimants have not sustained their burden of proof with respect to navigational safety.

 

 

Licensure and Group Piers

 

34. The Indiana General Assembly directed the Commission to adopt rules to provide objective standards for issuing licenses under IC 14-26-2-23, including standards for the configuration of piers, boat stations, platforms, and similar structures.  The standards are to exempt any class of activities from licensing, including temporary structures, if the Commission finds that the class is unlikely to pose more than a minimal potential for harm to the public rights described in IC 14-26-2-5.  IC 14-26-2-23(e).

 

[VOLUME 11, PAGE 389]

 

35. The “public rights” referenced in IC 14-26-2-5 are “natural resources and the natural scenic beauty of Indiana”.  “Natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.  The public of Indiana has a “vested right” in (A) the preservation, protection, and enjoyment of all the public freshwater lakes; and, (B) the use of public freshwater lakes for recreational purposes.  A “recreational purpose” means fishing, boating, swimming, the storage of water to maintain water levels, and any other purpose for which lakes are ordinarily used and adapted.  The State holds and controls all public freshwater lakes in trust for the use of all the citizens of Indiana for recreational purposes.  IC 14-26-2-5.

 

36. The law is stated succinctly by the Court of Appeals of Indiana in Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001).  The Lakes Preservation Act is “[p]ublic trust legislation” intended to recognize “the public’s right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes.”  Even so, “Riparian landowners...continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public’s rights.”

 

37. Applying these statutory authorities, and particularly IC 14-26-2-23(e), the Commission has developed a regulatory design that authorizes the placement of temporary piers, boat stations, and similar structures under a partial exemption that is commonly referred to as a “general license”.  Under this regulatory design, a qualified structure can be placed within a public freshwater lake without obtaining a prior written license (or what is sometimes called an “individual license”) from the DNR.  Clauss v. DNR, 11 Caddnar 150, 152 (2007).

 

38. As provided in pertinent part in 312 IAC 11-3-1(a) and (b):

 

(a) The placement of a temporary structure…is authorized without a written license issued by the [DNR under the Lakes Preservation Act and 312 IAC 11-3] if the temporary structure qualifies under this section.

(b) In order for a temporary structure to qualify, the structure must satisfy 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.

(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…shoreline [or water line].

(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the…shoreline [or water line].

(7) Not be a marina.

(8) Not be a group pier.

(9) Be placed by…a riparian owner.

 

[VOLUME 11, PAGE 390]

 

39. A person who acts under 312 IAC 11-3-1(a) and (b) has a general license with conditions that have been codified by rule, and a person who purports to act under the rule’s authority but who violates the conditions, violates the license. 

 

40. A person who wishes to place a temporary pier or other temporary structure, which does not meet each of the conditions of 312 IAC 11-3-1(b), is disqualified from obtaining a general license.  The person is not disqualified from obtaining an individual license.  A person who demonstrates to the DNR that granting an individual license would not harm the public rights described in Finding 35 may be entitled to an individual license. 

 

41. A person who is disqualified from a general license because the person seeks an authorization which is inconsistent with subdivision (1), (2), (3), (4), (5), (6), or (9) of 312 IAC 11-3-1(b) would be required to demonstrate the inconsistency would not harm these public rights.  Typically, the person would be required to reconcile only the particular inconsistency.  For example, a proposed pier which was inconsistent with the general license exclusively because it would “infringe on the access of an adjacent landowner” would be disqualified from a general license under 312 IAC 11-3-1(b)(2).  An applicant who demonstrated that the adjacent landowner consented to any infringement could qualify for an individual license.

 

42. A person who is disqualified from a general license, because the persons seeks an authorization for a “marina” under 312 IAC 11-3-1(b)(7) or a “group pier” under 312 IAC 11-3-1(b)(8), must demonstrate to the DNR that the totality of an individual license would not violate the public rights described in Finding 35.  Because the Commission has determined the potential for harm posed by a “marina” or a “group pier” is greater than that for a lesser temporary structure, the demonstration is required before the structure is placed rather than afterwards.  Stated in the alternative, the Commission has determined that a “marina” or a “group pier” poses “more than a minimal potential for harm to the public rights described in IC 14-26-2-5.”  The Commission has determined exercise of the authority provided in IC 14-26-2-23(e) would be inappropriate for a “marina” or a “group pier”.

 

43. The Claimants contend in their proposed “Findings of Fact and Conclusions of Law” that the Commission has not adopted “objective standards” for “group piers”.  While the contention is accurate in a literal sense, it fails to place “group piers” within the context of the Commission’s broader permitting structure.  The same standards as apply to a person, who acts under the authority of a general license under 312 IAC 11-3-1(a) and (b), are properly referenced in the review of an individual license for a “group pier”. 

 

[VOLUME 11, PAGE 391]

 

44. First Sgt. Snyder testified that “group piers” were excepted from qualification for a general license to reverse the presumption pertaining to their placement.  For a pier that qualifies for the general license, a property owner may place the structure without completing the DNR’s review process for individual licenses.  Another person may yet contest the placement, and an administrative review by the Commission would result, but the pier would already be in place.  For a “group pier”, the option of a general license is unavailable.  As a result, the DNR’s licensure review process must be completed before a group pier is placed.  Snyder testified the potential for high traffic caused by a group pier was “one of the factors” why a group pier is an exception to qualification for a general license.  His testimony is persuasive.

 

45. The DNR’s scrutiny of a “group pier” under the rule is more focused because it is provided in advance of placement of a structure.  In contrast, the after-the-fact observation of the myriad of temporary piers placed under a general license is likely to be less intensive.  Requiring a person who places a “group pier” to apply for a written license causes the DNR to evaluate a structure, for compliance with the statutory protections of public rights afforded by the Lakes Preservation Act, before placement of the structure.

 

46. In response to a question by the DNR, Snyder testified that RCI could have sold 50 parcels along the shoreline rather than develop the site as a condominium.  If the result “wasn’t encroaching on the neighbor” and was not otherwise in contradiction of 312 IAC 11-3-1, a person could place a pier as long as 150 feet from the shore under the authority of a general license.  He testified it “was done on the north shore” of Crooked Lake.  “That is permissible if you’re a single-lot owner.”  On behalf of RCI, Larry Macklin testified similarly to Snyder in this regard.

 

47. Since there are not standards with exclusive application to “group piers”, the Claimants would interpret the Commission’s determination to except them from qualification under the general license as effectively prohibiting the licensure.  If the Commission had intended to prohibit the licensure of “group piers”, it would have so stated.  The Claimants’ tortured interpretation is unsupported within the context of 312 IAC 3-11-3 and would violate the balancing of public rights and riparian rights as referenced in Lake of the Woods v. Ralston, cited previously. 

 

48. The Commission might accomplish additional regulatory goals by adopting standards specifically applicable to “group piers”, but even in the absence of these standards, its policy pronouncement that advance scrutiny is to be given to “group piers” serves a valid regulatory purpose.  With the added scrutiny provided by the DNR in evaluating a “group pier”, a level of protection is afforded which is appropriate to the Lakes Preservation Act and likely superior to what would have been afforded had development occurred within the parameters of the general license.  The benefits of the Commission’s policy pronouncement are illustrated in this proceeding.  The preponderance of the evidence demonstrates that the group pier as configured in Finding 18 authorizes the mooring of fewer boats, and with a lesser impact to the public trust, than would have been occasioned by the placement of piers under the terms of general licenses located at 50 separate parcels. 

 

[VOLUME 11, PAGE 392]

 

Fish, Wildlife, or Botanical Resources

 

49. Scott Andrew Banfield is a biologist who lives in Steuben County and who operates a business from Angola, Indiana.  In the early and middle 1990s, he obtained baccalaureate degrees from Tri-State University in biology and in environmental science and completed two terms of graduate and senior level coursework in limnology and fisheries management at Michigan State University.  In his current business operations, Banfield plans and conducts aquatic pesticide applications for plant and algae control, and he develops aquatic management plans.  He also conducts lake diagnostic studies and makes recommendations on improving and protecting water quality. 

 

50. Banfield testified he is familiar with the Third Basin, including the site vicinity of RCI’s piers.  The bed of the lake in this vicinity is characterized by soft silt and sediments.  He measured depths at the slips nearest to the shore, which were approximately 30 inches from the surface, but he did not perform measurements for slips farthest from the shore.  Banfield stated the measurements were performed in late August.  He testified he observed the measurements by Stites which indicated shallower depths of 14 inches farthest from the shore.  He said this condition was unusual and ordinarily resulted where dredging occurred near the shoreline, although he was unaware whether dredging had actually occurred.

 

51. Scott Stites testified concerning measurements of water depth taken in the vicinity of RCI’s piers, but he testified he was unaware of the legal elevation of the Third Basin when the measurements were taken.  Stites also made a videotape recording the site on the same day, which included the operation of a motorboat and the resulting disturbance of sediments in the lake.  He was testified he was unable identify the day when the videotape recording was made except that it occurred in the summertime of 2007, probably in June or July.

 

52. Banfield testified that boats disturbing sediments on a lakebed can “cause problems from a biological standpoint.  If you’re disturbing sediment that’s on the bottom, or generally sediment in a lake, or soil on the land for that matter, has nutrients attached to it.  There’s a nutrient exchange that takes place when you disturb the sediments….  Nutrients that are exchanged from that sediment go into the water, at large, in the rest of the lake and have an effect on the water quality and the water clarity of the lake.”  Where sediments are exchanged, and particularly phosphorous, the growth of algae and other plants is accelerated.  He testified the videotape recording described in Finding 50 was consistent with a disturbance of the bottom of the Third Basin resulting in a nutrient exchange.

 

[VOLUME 11, PAGE 393]

 

53. Banfield testified that different areas of the Third Basin had importance to biological integrity.  With regard to vicinity of RCI’s piers, there are a significant “number of rooted floating and emergent plants.”  The sediments on the lakebed came into the lake as erosion from the land.  Part of the reason for the emergent plants is the presence of the sediments, and the plants tend to catch the sediments and filter them before they can advance to “the lake water at large”.

 

54. Banfield testified Crooked Lake is in a chain of lakes which downstream includes Lake Gage.  Lake Gage has a cisco population, and cisco is a species which “has some very sensitive habitat needs.”  Higher phosphorous levels in Crooked Lake could pass to Lake Gage, damage the water quality of Lake Gage, and damage the cisco population. If phosphorous levels were sufficiently high, cisco would be eliminated from Lake Gage.  In addition, he testified the DNR has a program for stocking rainbow trout in Lake Gage, and if phosphorous levels were sufficiently high, rainbow trout would be unable to survive.

 

55. On cross examination by the DNR, Banfield testified that from a biological standpoint, he would prefer that piers be designed so “the boat movement and the boat mooring is as far out away from shore as possible.”  As a result, the license proposal which would have the least adverse effect to biological resources was the license approved on September 19, 2006 and described in Finding 15.  An intermediate adverse effect would result from the configuration described in Finding 18 and at issue in this proceeding.  The worst adverse effect to biological resources resulted from the configuration supported by the Claimants because this configuration resulted in the most boat movement and mooring close to shore.  He agreed the DNR’s limit on the number of boats that could be moored demonstrated sensitivity to biological concerns, as well as the agency’s desire to limit boat density on the Third Basin.

 

56. Neil David Ledet testified he has been a full-time employee of the DNR since 1976.  He is a District Fisheries Biologist who works mainly in Steuben, Lagrange, and Elkhart Counties.  He testified he reviews about 100 license applications annually for activities within or along waterways.  Of these, four or five have been for “group pier” license applications, including the application here under consideration.

 

57. Ledet testified that in performing a license review, he would examine the proposed project and attempt to “consider potential impacts from that project.”  For a group pier, he “would look at the environmental impacts.”  Ledet would seek to minimize any potential negative impacts to fish, wildlife, or botanical resources.  His review included consideration of the value of near-shore vegetation, and to the extent practical, the DNR would try to position piers away from desirable vegetation. 

 

58. Ledet testified he believed the license described in Finding 15 minimized potential adverse impacts to fish, wildlife, or botanical resources.  The proposal described in Finding 18, and at issue in this proceeding, was not his most “preferred choice, but I recommended that the [DNR] accept it.”  The configuration preferred by the Claimants was unacceptable, from a biological perspective, because more boats would be brought into shallow water and disturbances to sediments could occur, particularly during low-flow conditions in the Third Basin.  A key biological concern was minimizing impacts from structures near the shoreline, an area of particular sensitivity for species of reptiles and amphibians.

 

[VOLUME 11, PAGE 394]

 

59. Ledet testified he personally visited the Third Basin in the summer of 2007.  During the summer through September 1, 2007, the elevation of the Third Basin “went from one extreme to the other”.  There were very low flows followed by “elevations that were high enough that they resulted in closure for boating activities.”  He testified the “water depth”, at the time of the videotape recording described in Finding 50, “looked lower than we normally see”.

 

60. On cross examination by the Claimants, Ledet testified he originally recommended denial of the license application.  One of the reasons for changing his position to a recommendation of approval was that RCI subsequently clarified limits on the number of boats which could lawfully be moored.  RCI agreed to limit the total number of moored boats to 36, inclusive of pontoon boats, bass boats, personal watercraft, and other types of boats.  This limitation effectively placed a ceiling of two boats for each condominium unit, a number compatible with the number of boats typically moored by other landowners along the Third Basin, although he stated the DNR does not have a formula for determining how many boats each owner can lawfully moor.  He said he agreed with the statement by Banfield that fewer boats moored along the shoreline would be generally preferable in botanical terms than more boats.

 

61. The testimonies of Banfield and Ledet express very similar professional opinions in terms of the biological impacts of boats and of piers other structures that are placed in proximity to the shoreline.  Construction along the shoreline should be minimized.  Fewer structures and fewer boats tend to cause fewer negative impacts to fish, wildlife or botanical resources than do more structures and more boats.  The disturbance of sediments is to be minimized.  Each of these opinions is found to be persuasive.

 

62. Banfield and Ledet also agree that the pier configuration which would be most harmful to fish, wildlife and botanical resources is the one advocated by the Claimants.  While the Claimants would have boating activities near to shore, this location is the most hostile to the maintenance of biological resources in their natural state.  The pier configuration that would be advocated by Banfield and Ledet, at least if measured solely by a biological standard, would place piers or boat stations into the deeper waters of the Third Basin—precisely what the Claimants have stated they oppose.

 

63. The testimony of Banfield and Ledet help to illustrate the tightrope that is the Lakes Preservation Act.  The Indiana General Assembly has sought to preserve our public freshwater lakes in as natural a state as practicable, but also allowing for recreational uses and recognizing the rights of riparian owners.  What is ideal to address biological concerns is not what is ideal to address boating safety concerns.  The testimonies of the biologists do not advance the position of the Claimants unless it is for the proposition that RCI’s riparian ownership affords it nothing.  Neither the Lakes Preservation Act nor Lake of the Woods v. Ralston, cited previously, supports the latter proposition.  The license described in Finding 18 seeks successfully to achieve the balancing of interests anticipated by the Lakes Preservation Act.

 

[VOLUME 11, PAGE 395]

 

Public Opinion

 

64. The Claimants submitted into evidence April 2007 letters from approximately 175 residents of Crooked Lake stating opposition the placement of piers by RCI.  Other than the short fishing pier, the piers authorized under Finding 18 were placed in the Third Basin in the summer of 2007.  James Wilhelm testified he spoke with several local residents in the summer of 2007, some of whom he believes were originally opposed to but are now satisfied by the propriety of RCI’s piers.

 

65. Generally, an Indiana state administrative agency has only those powers conferred on it by the Indiana General Assembly.  Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995). 

 

66. The only powers conferred on the Commission pertinent to this proceeding are those of the Lakes Preservation Act.

 

67. A condominium development may be regulated through local planning and zoning, but the Lakes Preservation Act does not confer power to the Commission to regulate RCI through planning or zoning.

 

68. The Lakes Preservation Act could make the approval of a construction activity, including the placement of “group piers”, contingent upon approval by a majority of riparian owners.  By illustration, IC 14-26-2-12(a)(2) provides that the DNR cannot issue a permit for the construction of a channel into a public freshwater lake unless “the applicant proves that fifty-one percent (51%) of the property owners abutting the shoreline of the lake approve the channel construction.” 

 

69. No provision similar to the one in IC 14-26-2-12(a)(2) applies to group piers within public freshwater lakes.  In the absence of statutory authority, the Commission lacks jurisdiction to determine RCI’s license application based upon public opinion.

 

 

Affirmation of License for Group Pier

 

70. Based upon de novo review, the preponderance of the evidence supports the issuance of the license as described in Finding 18.  The DNR properly evaluated the considerations of the Lakes Preservation Act in balance with the riparian rights of RCI in approving this license.  Reasonable safety is provided to boaters and to the general public where responsible boating activities are pursued.  Appropriate provision is made for the enjoyment of the public trust.  Due consideration was given to fish, wildlife and botanical resources.  The Claimants have not met their burden of proof to set aside the license.