CADDNAR

[CITE: Majewski v. DNR, 12 CADDNAR 299 (2011)]

 

[VOLUME 12, PAGE 299]

 

 

Cause #: 07-235W

Caption: Majewski v. DNR

Administrative Law Judge: Lucas

Attorneys: Majewski, D. (Majewski); Wyndham (DNR)

Date: March 21, 2011

 

 

[NOTE: ON APRIL 20, 2011, MAJEWSKI FILED FOR JUDICIAL REVIEW IN THE WHITLEY CIRCUIT COURT IN CAUSE NO. 92C01-1104-PL-194). ON SEPTEMBER 29, 2011, WHITLEY CIRCUIT COURT ENTERED ORDER DISMISSING NRC AS A PARTY. ON NOVEMBER 26, 2012, WHITLEY CIRCUIT COURT ENTERED JUDGMENT IN FAVOR OF MAJEWSKI.].

 

FINAL ORDER

 

The denial by the Department of Natural Resources of Application PL-20,899, as sought by Thomas Majewski under IC 14-26-2 and 312 IAC 11, is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

1. This proceeding was initiated on December 27, 2007 with a petition for administrative review by Thomas Majewski (the “Claimant”) filed with the Natural Resources Commission (the “Commission”).  The petition sought administrative review from the denial by the Department of Natural Resources (the “DNR”) of license PL-20,899 (the “subject license”).

 

2. The Claimant owns Lot 26 and Lot 27 of Cedar Lake Park 3rd Addition in Thorncreek Township, Whitley County, Indiana.  This site is commonly known as 1755 East Schug Road, Columbia City, Indiana and is referenced as the “Claimant’s property”.  The Claimant’s property is adjacent to Cedar Lake, and the Claimant is a riparian owner.

 

3. The Claimant’s application originally sought to dredge an area of the lakebed of Cedar Lake, containing approximately 50 feet by 100 feet, “to remove sunken trees and debris”.  Subsequently, the application was modified for authorization to place a uniform six-inch layer of pea gravel over an area 50 feet by 30 feet.  During a discussion of the issues in the initial prehearing conference held on January 25, 2008, the Claimant stated he desired to remove submerged wooden materials from the lakebed adjacent to his property “or cause them to be covered with pea gravel.  Another option he would be willing to consider is dredging.” 

 

4. In the “Respondent Department of Natural Resources’ Post Hearing Brief”, the DNR characterizes the Claimant’s current request as being for a “40 feet by 30 feet pea gravel underwater beach with geotex filter cloth material placed underneath the pea gravel.”  During a hearing conducted in Indianapolis on September 8, 2010, the Claimant testified he wished to place six inches of pea gravel in a roughly rectangular area beginning eight feet within the shoreline of Cedar Lake and extending for 30 feet into the lake along 40 feet of shoreline (approximately 1,200 square feet).  The pea gravel would be placed on a Geotex® nonwoven geotextile.  See, also, Claimant’s Exhibit 8 and Stipulated Exhibit 4.  The “Claimant’s Memorandum of Law in Support of Petition” characterizes the request as a “safety project” which would likely have a “de minimus impact on the lake” and may “not even need authorization” from the DNR. 

 

5. The parties do not dispute that Cedar Lake in Whitley County is a “public freshwater lake” as defined in IC 14-26-2-3 and 312 IAC 11-2-17.  See also “Listing of Public Freshwater Lakes (First Amendment)”, 20101006-IR-312100620NRA, Indiana Register (October 6, 2010).  As a “public freshwater lake”, Cedar Lake is governed by IC 14-26-2 (the “Lakes Preservation Act”) and rules adopted at 312 IAC 11-1 through 312 IAC 11-5 to assist with implementation of the Lakes Preservation Act. 

 

6. The proceeding is governed by IC 4-21.5 (the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA.  The Commission is the “ultimate authority” for the DNR under AOPA with respect to administrative review of an order arising from the Lakes Preservation Act.  IC 4-21.5-1-15 and IC 14-10-2-3.  Stephen L. Lucas was appointed under AOPA and 312 IAC 3-1 as the Commission’s administrative law judge.

 

7. The Commission has jurisdiction over the subject matter and jurisdiction over the persons of each of the Parties.

 

 

B. Application of the Lakes Preservation Act

 

8. The Claimant disputes the validity of DNR’s application of the Lakes Preservation Act.  In the “Claimant’s Memorandum of Law in Support of Petition”, he references particularly IC 14-26-2-5(c)(2) and urges he “is being denied the rights granted under the statute by being unable to use the lake on which he lives for recreational purposes.  It is not stretching logic or the imagination to believe that untold numbers of downed trees, buried under an unknown depth of muck, with points as sharp or sharper than a weapon, keep the Claimant from the use of a freshwater lake for recreational purposes.  It is also not a stretch of the imagination to believe that the Claimant is at substantial risk of injury just securing a boat or walking out into the lake to do routine maintenance to his dock.”

 

9. In support of his position, the Claimant cites Indiana Department of Natural Resources v. Town of Syracuse, 686 N.E.2d 410 (Ind. App. 1997) (referenced here as “Town of Syracuse”); State ex rel. DNR v. Mason (Ind. App. 1981), 416 N.E.2d 1312; Indiana Department of Natural Resources v. Lake George Cottagers Association, 889 N.E.2d 361 (Ind. App. 2008) (referenced here as “Lake George Cottagers”); and Parkinson v. McCue, 831 N.E.2d 118 (Ind. App. 2005).  These reported decisions are considered.

 

10. In order to support the values expressed in the Lakes Preservation Act, as well as to balance the rights of the public and those of riparian landowners, the legislature established a licensure system to be administered by the DNR.  As provided in former IC 14-26-2-6:

 

[VOLUME 12, PAGE 300]

 

Sec. 6. A person may not change the level of the water or the shoreline of a public freshwater lake by:

(1)   excavating;

(2)   filling in; or

(3)   otherwise:

(A)  causing a change in the depth of; or

(B)  affecting the natural resources, scenic beauty, or contour of:

the lake below the waterline or shoreline without having a written permit issued by the [DNR].  [Repealed]

 

11. In addition, former IC 14-26-2-9 required a permit if an activity would “alter the bed” of a public freshwater lake. 

 

12. In Town of Syracuse, the Court of Appeals of Indiana declined to apply the licensing authorities established by IC 14-26-2-6 and IC 14-26-2-9 to the placement of temporary piers. “A review of the Lake[s] Preservation Act reveals that the legislature was contemplating the regulation of activities of a more violent and substantial nature than securing three-and-a-half inch posts two to three feet into a lake bed.”   Examples of activities “of a more violent and substantial nature” were found to include dredging and mining.

 

13. Town of Syracuse is of limited support to Claimant because the decision addresses exclusively temporary piers.  The Claimant seeks a license not to place a temporary pier but rather either to dredge or to place fill materials in Cedar Lake.  Town of Syracuse includes dredging among those activities that former IC 14-26-2-6 governed.  Neither IC 14-26-2-6 nor IC 14-26-2-9 was directed specifically to temporary piers.  The DNR had urged in Town of Syracuse that 3½” auger posts would “alter the bed” of a lake, but the Court of Appeals found any impact would be minimal and outside the legislative intent.  Although removing material from the lakebed is in some sense the opposite from placing fill material, the character of the activities are more similar to each other than either is to the placement of a temporary pier.  The impact to the lake is likely to be more significant for either dredging or filling than for the placement of a temporary pier.  Perhaps more importantly, former IC 14-26-2-6 addressed specifically both “excavating” and “filling”.

 

14. Also, in the same year as Town of Syracuse was decided, the Indiana General Assembly established the Indiana Lakes Management Work Group.  The substantive charge to the work group was to develop proposed solutions to problems affecting Indiana lakes. P.L. 239-1997.   In response to this charge, the work group offered numerous recommendations.  One of the recommendations was directed to Town of Syracuse:


On October 16, 1997, the Court of Appeals ruled that the Indiana Department of Natural Resources (DNR) has no statutory authority under [the] Lakes Preservation Act to require permits for seasonal installation of piers or other structures that are of a temporary nature, so long as the installation method has minimal impact on the bed of the lake.

Although there are other areas of law that suggest DNR has the authority to regulate temporary structures in public freshwater lakes, the authority is not definitive and is cumbersome to apply.

The result of this condition of law is that DNR is unable to effectively manage public freshwater lakes in the full spirit of “public trust” as mandated by law.  Additionally, the ability of public freshwater lakes, users, property owners, and local governments to resolve disputes short of expensive court battles is unrealistically limited.

Structures that are considered temporary, and have “de minimis” impact on the lake bed are left to uncontrolled proliferation.  The result is loss of public usage of areas within 150 feet of shore, an increase in riparian owner disputes, and environmental harm to the lakes.

DNR has attempted to manage this problem through agency rule-making authority. This process has not adequately dealt with the problem, and clear authority must be re-established by the legislature to protect Indiana’s public freshwater lakes for property owners, current users, and future stakeholders.

15. The Indiana Lakes Management Work Group stated:

The Indiana Lakes Management Work Group recommends that the Indiana General Assembly amend the public freshwater lake law to add a new section that reads as follows:

IC 14-26-2-5.5. The Commission shall adopt rules under IC 14-10-2-4 to assist in the administration of this chapter. The rules must, as a minimum, do the following:

(1) Provide objective standards for licensing the placement of any temporary or permanent structure or material, or the extraction of material, over, along, or within the shoreline or waterline.  These standards shall exempt any class of activities from licensing where the Commission finds the class is unlikely to pose more than a minimal potential for harm to the public rights or public trust as described in IC 14-26-2-5.

(2) Establish a process under IC 4-21.5 for the mediation of a dispute among riparian owners, or by a riparian owner against the department, relative to the usage of an area over, along, or within the shoreline or waterline for a matter within the jurisdiction of this chapter. If after a good faith effort mediation under this subdivision fails to achieve a settlement, the department shall make a determination of the dispute. A person affected by the determination may seek administrative review by the Commission.

“Final Report of the Indiana Lakes Management Work Group”, (Indiana Department of Environmental Management, Dec. 1999), pp. 40 and 41.

16. The Indiana General Assembly enacted P.L. 62-2000, in part to implement the work group recommendation that the Lakes Preservation Act should have broader application than stated in the Town of Syracuse.  Piering v. Ryan and Caso, 9 Caddnar 123, 127 (2003).[1]  IC 14-26-2-6 and IC 14-26-2-9 were repealed and replaced with a more comprehensive regulatory structure at IC 14-26-2-23, which now provides:

 

[VOLUME 12, PAGE 301]

 

Sec. 23. (a) Unless a person obtains a permit from the department under this section and conducts the activities according to the terms of the permit, a person may not conduct the following activities:
        (1) Over, along, or lakeward of the shoreline or water line of a public freshwater lake:
            (A) excavate;
            (B) place fill; or
            (C) place, modify, or repair a temporary or permanent structure.
        (2) Construct a wall whose lowest point would be:
            (A) below the elevation of the shoreline or water line; and
            (B) within ten (10) feet landward of the shoreline or water line, as measured perpendicularly from the shoreline or water line;
        of a public freshwater lake.
        (3) Change the water level, area, or depth of a public freshwater lake or the location of the shoreline or water line.
    (b) An application for a permit for an activity described in subsection (a) must be accompanied by the following:
        (1) A nonrefundable fee of one hundred dollars ($100).
        (2) A project plan that provides the department with sufficient information concerning the proposed excavation, fill, temporary structure, or permanent structure.
        (3) A written acknowledgment from the landowner that any additional water area created under the project plan is part of the public freshwater lake and is dedicated to the general public use with the public rights described in section 5 of this chapter.
    (c) The department may issue a permit after investigating the merits of the application. In determining the merits of the application, the department may consider any factor, including cumulative effects of the proposed activity upon the following:
        (1) The shoreline, water line, or bed of the public freshwater lake.
        (2) The fish, wildlife, or botanical resources.
        (3) The public rights described in section 5 of this chapter.
        (4) The management of watercraft operations under IC 14-15.
        (5) The interests of a landowner having property rights abutting the public freshwater lake or rights to access the public freshwater lake.
    (d) A contractor or agent of the landowner who engages in an activity described in subsection (a)(1), (a)(2), or (a)(3) must comply with the terms of a permit issued under this section.
    (e) The commission shall adopt rules under IC 4-22-2 to do the following:
        (1) Assist in the administration of this chapter.
        (2) Provide objective standards for issuing permits under this section, including standards for the configuration of piers, boat stations, platforms, and similar structures. The standards:
            (A) may provide for a common use if the standard is needed to accommodate the interests of landowners having property rights abutting the public freshwater lake or rights to access the public freshwater lake; and

(B) shall 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 section 5 of this chapter….

 

17. Whether Town of Syracuse would have been instructive to a consideration of a fill or dredging project, before the repeal of IC 14-26-2-6 and IC 14-26-2-9, and before the enactment of IC 14-26-2-23, is problematic.  In any event, the evaluation of the Claimant’s proposed project should today be considered in light of the regulatory approach set forth in IC 14-26-2-23.  If Town of Syracuse has any application, it is to the general principle that licensing should not be applied to activities which are inconsequential to the Lakes Preservation Act.  This concept is now implemented through IC 14-26-2-23(e).  The Indiana General Assembly has authorized the Commission to adopt rules to “exempt any class of activities from licensing…if the [C]ommission 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.

 

18. The Claimant’s reliance on State ex rel. DNR v. Mason is misdirected.  In this decision, the Court of Appeals concluded a trial court abused its discretion in not granting an injunction to the DNR against a person who held a permit under the Lakes Preservation Act.  Mason had a permit to construct a seawall but also dredged a portion of a public freshwater lake, which was adjacent to his property, for the construction of a boat channel.  The Court of Appeals found the dredging activity violated the permit, and, in the absence of a permit, violated the Lakes Preservation Act.  The matter was remanded to the trial court with instructions to implement the injunction.  Nothing in State ex rel. DNR v. Mason supports a proposition that a DNR permit is not or may not be required to fill or dredge a public freshwater lake.

 

19. Lake George Cottagers includes important judicial constructions of the Lakes Preservation Act: 

First, the Lakes Preservation Act gives the DNR “the right only to regulate and control, and hold in trust ‘public freshwater lakes’ for the use of all citizens of Indiana….  There is no language in the Lake[s] Preservation Act that declares the State of Indiana the ‘owner’ of ‘public freshwater lakes’ or more specifically of any structures adjacent to public freshwater lakes in Indiana.”  Lake George Cottagers at 364 and 365.  [Emphasis omitted.]

Second, the DNR’s “authority under the Lake[s] Preservation Act is not an ‘ownership’ interest….  [P]ublic trust legislation, specifically I.C. § 14-26-2-5, modified common law riparian rights by recognizing the public’s right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes….”  [Citations omitted.]

 

20. Parkinson v. McCue articulates the four privileges generally enjoyed by a riparian owner: (1) the right of access to navigable water; (2) the right to build a pier to the line of navigability; (3) the right to accretions; and, (4) the right to reasonable use of the water for general purposes such as boating and domestic use.

 

21. The Lakes Preservation Act does not abrogate the rights of riparian owners on public freshwater lakes but rather provides that those rights must be exercised in harmony with the public trust.  Bath v. Courts, 459 N.E.2d 72, 75 (Ind. App. 1994).  The Lakes Preservation Act places the full power of public freshwater lakes in the State of Indiana to hold in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes.  The DNR is the agency primarily responsible for administering the trust.  Lake George Cottagers and Lake of the Woods v. Ralston, 748 N.E.2d 396, 401.

 

[VOLUME 12, PAGE 302]

 

22. With enactment of the Lakes Preservation Act, the common law privileges of a riparian owner have been modified by public trust legislation recognizing the public’s right to preserve the natural scenic beauty of our lakes and their recreational values.  As reflected by the courts, and in the Claimant’s brief, a section key to balancing these interests is IC 14-26-2-5:

Sec. 5. (a) As used in this section, “natural scenic beauty” means the natural condition as left by nature without manmade additions or alterations.
    (b) As used in this section, “recreational purpose” means the following:
        (1) Fishing.
        (2) Boating.
        (3) Swimming.
        (4) The storage of water to maintain water levels.
        (5) Any other purpose for which lakes are ordinarily used and adapted.
    (c) The:
        (1) natural resources and the natural scenic beauty of Indiana are a public right; and
        (2) public of Indiana has a vested right in the following:
            (A) The preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state.[2]
            (B) The use of the public freshwater lakes for recreational purposes.
    (d) The state:
        (1) has full power and control of all of the public freshwater lakes in Indiana both meandered and unmeandered; and
        (2) holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.
    (e) A person owning land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake.

 

23. Implicit to the legislative directives in IC 14-26-2-5 is that there must be a balancing of interests.  The public’s vested right in the preservation of public freshwater lakes in their present state and the public’s vested right in the use of public freshwater lakes for recreational purposes will sometimes be competing rights.  The Indiana General Assembly entrusted the DNR with responsibility for seeking a reasonable balance, and the Indiana General Assembly delegated authority to the Commission under IC 14-26-2-23 to adopt rules to exercise the responsibility in a consistent and predictable manner. 

 

24. As referenced previously, the Commission has adopted rules at 312 IAC 11-1 through 312 IAC 11-5 to assist with the implementation of the Lakes Preservation Act.

 

25. As defined in 312 IAC 11-2-2,

 

“‘area of special concern’ means an area that contains at least one (1) of the following characteristics:

       (1) An altered shoreline where bulkhead seawalls are at least two hundred fifty (250) feet apart.

       (2) Bogs, fens, muck flats, sand flats, or marl beaches identified by the division of nature preserves in the Natural Community Classification System.

       (3) More than six hundred twenty-five (625) square feet of contiguous emergent vegetation or rooted vegetation with floating leaves.

 

26. The evidence is not refuted that the area of shoreline along the Claimant’s property is unaltered, and more than 250 feet from bulkhead seawalls.  Indeed, the evidence suggests no bulkhead seawalls are located anywhere on Cedar Lake.

 

27. The shoreline along the Claimant’s property is an “area of special concern” as defined in 312 IAC 11-2-2(2).

 

28. As defined in 312 IAC 11-2-27,

 

“underwater beach” means an area of a lakebed that is both of the following:

     (1) Lakeward of the shoreline or water line of a public freshwater lake.

     (2) Used for a recreational purpose, such as wading or swimming.

 

29. The Claimant urges DNR licensure authority references a “beach”, and the site where he seeks to place pea gravel on a Geotex® nonwoven geotextile is not a “beach”.  In his post-hearing brief, Claimant urges adoption of the American Heritage Dictionary definition for “beach”.   The American Heritage Dictionary defines a “beach” as “the zone above the water line at a shore of a body of water, marked by an accumulation of sand, stone, or gravel that has been deposited by the tide or waves.”

 

30. Under principles of statutory construction, words and phrases shall be given their plain and ordinary meaning, although technical words and phrases having peculiar and appropriate meaning shall be understood according to their technical import.  Hendricks County Bank & Trust Co. v. Guthrie Bldg. Materials, Inc., 663 N.E.2d 1180 (Ind. App. 1996).  Technical terms shall be given their technical meaning.  Wilson v. Brown, 461 N.E. 2d 1162, opinion amended 464 N.E.2d 1332 (Ind. App. 1984).  Clear and unambiguous administrative rule provisions are not open to statutory construction.  Indiana Alcoholic Beverage Commission v. Osco Drug, Inc., 431 N.E.2d 823 (Ind. App. 1982) cited in Faulk v. DNR, 11 Caddnar 272, 277 (2008).

 

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31. The definition offered by Claimant for “beach” is consistent with the plain and ordinary meaning of the term “beach”.  The concept of a “beach” within the shoreline of a lake may be unconventional, but the offered definition of “beach” is inapplicable.  The regulatory phrase is not “beach” but “underwater beach”.  The definition for “underwater beach” provided 312 IAC 11-2-27 is unambiguous.  The term has technical import for administration of the Lakes Preservation Act where DNR authority is typically limited to the area within the shoreline or water line of a public freshwater lake.  Illustrative is Galbreath v. Griffith, 11 Caddnar 224 (2007).  If the term “beach” were segregated from the defined term “underwater beach”, reference would be to an area generally outside the geographic scope of the Lakes Preservation Act.  The regulatory definition specifies that its application is to the area “lakeward of the shoreline or water line”.  The Claimant’s definition would invite an ambiguity, and probably an absurdity, where the meaning stated in the rule for “underwater beach” is unambiguous. 

 

32. Clear and unambiguous meaning leaves no room for interpretation by statutory construction.  St. Vincent Hosp. and Health Care Center, Inc. v. Steele, 766 N.E.2d 699 (Ind. 2002).  The definition of “underwater beach” set forth by the Commission in 312 IAC 11-2-17 is clear and unambiguous and must properly be applied.

 

33. The placement of fill in an underwater beach is governed by 312 IAC 11-4-4:

 

Sec. 4. (a) A written license under IC 14-26-2 and this rule is required to place material for an underwater beach within a public freshwater lake.

   (b) The director or a delegate shall not issue a license for the placement of:

     (1) filter cloth; or

     (2) an impermeable material;

beneath or in an underwater beach.

   (c) The director or a delegate shall not issue a license for the placement of an underwater beach:

     (1) in a significant wetland; or

     (2) along a natural shoreline.

   (d) To qualify for a license to place an underwater beach in an area of special concern, the underwater beach must:

     (1) not exceed six hundred twenty-five (625) square feet;

     (2) not extend:

(A) more than thirty (30) feet lakeward of the shoreline or water line; or

(B) to a depth of six (6) feet;

whichever occurs earlier;

     (3) be placed on not more than one-half (½) the length of the shoreline or water line of the riparian owner;

     (4) be comprised of clean, nontoxic pea gravel;

     (5) not exceed six (6) inches in thickness; and

     (6) be thin enough or tapered so the shoreline or water line will not be extended lakeward.

   (e) To qualify for a license to place an underwater beach in a developed area, the underwater beach must:

     (1) be comprised of clean, nontoxic pea gravel;

     (2) not exceed six (6) inches in thickness;

     (3) be placed on not more than one-half (½) the length of the shoreline or water line of the riparian owner;

     (4) extend not:

(A) more than fifty (50) feet lakeward from the shoreline or water line;    or

(B) beyond a depth of six (6) feet;

whichever occurs earlier; and

     (5) be thin enough or tapered so the shoreline or water line will not be extended lakeward.

   (f) If beach material has been placed previously under this section, the additional material must not:

     (1) extend beyond the limits of the previous beach material; and

     (2) exceed the size restrictions specified in subsections (d) and (e).

   (g) Erosion from disturbed areas landward of the shoreline or water line must be controlled to prevent its transport into the lake.

 

34. The Commission has adopted a three-tiered regulatory approach for licensing the placement of seawalls in public freshwater lakes.  Most pristine are a “natural shoreline” or a “significant wetland”.  In these areas new seawall construction is limited to bioengineered materials.  An “area of special concern” has an intermediate condition, and here a new seawall may be constructed of bioengineered materials or of glacial stone.  312 IAC 11-4-2(c).  A “developed area” has the greatest human disruption, and in a developed area a new seawall may be constructed of bioengineered materials, glacial stone, riprap, or an approved bulkhead material. Burke’s Vinyl Seawalls & Reynolds v. DNR, 11 Caddnar 345, 349 (2008).  The Commission has found this “regulatory approach seeks to preserve and protect public freshwater lakes for the enjoyment of all the public.  Portions of shorelines exhibiting ‘natural scenic beauty’, and which are least affected by manmade additions or alterations, are accorded greater protections than those more disrupted.  The approach is consistent with the Lakes Preservation Act and particularly IC 14-26-2-5.”  Patton and Sedgwick v. DNR, 12 Caddnar 20, 23 (2009).

 

35. Under 312 IAC 11-4-4, the Commission has adopted a similar regulatory approach for licensing the placement of fill within an underwater beach.  The tiered approach for the licensure of fills in underwater beaches also appears to be consistent with the Lakes Preservation Act and IC 14-26-2-5.

 

36. With the adoption of 312 IAC 11-4-4, the Commission made a policy determination that the placement of pea gravel for an underwater beach is likely to have more than a minimal potential for harm.  Yet within all but the most sensitive environmental areas (significant wetlands and unaltered shorelines), licensure is authorized for the recreational enjoyment of riparian owners.

 

37. 312 IAC 11-4-4(b) disqualifies “(1) filter cloth; or (2) an impermeable material” from placement beneath or in an underwater beach.  As requested by the Claimant, pea gravel would be placed on a Geotex® nonwoven geotextile.  In testimony, the Claimant contested the DNR’s interpretation that the Geotex® nonwoven geotextile was “impermeable” and asserted it was instead “semi-permeable”.  The evidence is probably insufficient to determine whether “impermeable” or “semi-permeable” is the better characterization, or to determine whether “semi-permeable” would be outside the regulatory prohibition.  But there seems little dispute but that the geotextile is a filter cloth.  Because subsection (b) is written in the disjunctive, the Commission need only determine whether the evidence supports one aspect of the disqualification.  Soames v. Indiana Department of Natural Resources, 934 N.E.2d 1154, 1159 (Ind. App. 2010).  The Geotex® nonwoven geotextile is disqualified from licensure approval for placement in the underwater beach.

 

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38. In addition, the Claimant seeks to place fill that would cover approximately 1,200 square feet of Cedar Lake.  312 IAC 11-4-4(d)(1) limits the maximum coverage to 625 square feet.  The request in the license application exceeds the allowed regulatory maximum.

 

39. The Claimant has a pier extending from his shoreline.  The pier allows access to navigable water and reasonable use for purposes such as boating.  Testimony also indicated the pier accommodates swimming.

 

40. At the same time within the shoreline of Cedar Lake and adjacent to the Claimant’s property, testimony reveals the lake is characterized by dead trees with branches, some of which have sharp edges or points.  Over time, additional woody materials become exposed.  A scrape from a branch caused a bacterial infection for which the Claimant required medical treatment. 

 

41. The remains of a 55-gallon steel barrel are also present in this area.  The DNR gave permission to the Claimant to remove the barrel, and the Claimant attempted to pull the barrel from the lake.  About half of the barrel was successfully removed before the barrel broke.  According to testimony by the Claimant, the portion that remains in the water is “a jagged piece of edge all the way around the barrel.”  He has attempted to dig out the barrel, but as soon as a hole is dug, the hole fills with sand.  A floating device was attached to the remnants of the barrel in an effort to keep people away.

 

42. The testimony is not in dispute that these local conditions impair the Claimant’s enjoyment and the enjoyment of his family.  His preference is to cover the barrel remnants and the woody debris with a nonwoven geotextile and pea gravel.  This approach might be the most satisfying to the Claimant, and as a riparian owner, the Lakes Preservation Act seeks to accommodate his interests.  The Lakes Preservation Act considers other factors as well, including preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state.

 

43. Through rule adoption, the Commission has adopted a licensure process for the placement of an “underwater beach” which addresses the activity sought by the Claimant.  No regulatory approach is perfect, and amendments could be made to 312 IAC 11-4-4 which reasonably adjust the balance between preservation and recreation. 

 

44. The Claimant has demonstrated expertise in construction management, including the use of geotextiles, and testified he believes the Geotex® nonwoven geotextile is an appropriate remedy.  For the DNR, John Matthew Buffington testified that filter cloths tend to come to the surface, can cause navigation hazards, and can conflict the riparian zones of neighbors.  Both testimonies offer meaningful perspectives and are found to be based upon genuine, dispassionate beliefs.

 

45. On its face, 312 IAC 11-4-4 does not violate the Lakes Preservation Act.  The section is reasonably suited to support the Lakes Preservation Act and particularly IC 14-26-2-5.  For the administrative law judge to implement a regulatory approach different from 312 IAC 11-4-4 would be to inappropriately replace his policy determination for the Commission’s policy determination.

 

46. If 312 IAC 11-4-4 is to be modified to allow filter cloths or greater than 625 square feet of coverage for an underwater beach, in all or in some circumstances, the modification must be accomplished through rule amendments by the Commission.[3] 

 

47. The burden of persuasion and the burden of going forward are sometimes collectively referred to as the burden of proof. A person seeking the benefit of a license has the burden of proof for entitlement to the license. Indiana DNR v. United Refuse Co., 615 N.E.2d 100 (Ind. 1993) and Ind. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991).

 

48. The Claimant has not met the burden of proof to set aside the DNR’s denial of the application for PL-20,899.  Following a de novo hearing, the preponderance of the evidence is that the denial should be affirmed.

 

 


[1] As provided in IC § 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent.  In 1988, the Commission adopted Caddnar as its index of agency decisions.

[2] The Lakes Preservation Act originated with legislation enacted in 1947. Acts 1947, c. 181; and, Acts 1947, c. 301. The latter was approved on March 13, 1947, and provided in pertinent part:

 

...The natural resources and the natural scenic beauty of Indiana are declared to be a public right, and the public of Indiana are declared to have a vested right in the preservation, protection and enjoyment of all of the public freshwater lakes, of Indiana in their present state, and the use of such waters for recreational purposes.

 

In 2008, the Indiana General Assembly made amendments pertaining to what constitutes a “lake”, to clarify its intention that the measuring date for implementation of the Lakes Preservation Act is March 13, 1947.  See IC 14-26-2-1.5.  The ideal of the Lakes Preservation Act is to seek the protection of each public freshwater lake as it existed on March 13, 1947.

 

[3] The Commission has approved a guidance document to assist persons who wish to initiate rule changes.  See “Petitions for Rule Change and for Nonrule Policy Document Change”, 20080206-IR-312080059NRA, Indiana Register (February 6, 2008).