CADDNAR


[CITE: Baughn v. Town of Culver and DNR, 11 CADDNAR 261 (2008)]

 

[VOLUME 11, PAGE 261]

 

Cause #08-012W

Caption: Baughn v. Town of Culver and DNR

Administrative Law Judge: Lucas

Attorneys: Baughn (pro se); Gifford (Town); Boyko (DNR)

Date: February 25, 2008

 

 

FINAL ORDER DENYING PETITION FOR ADMINISTRATIVE REVIEW

 

Joseph H. Baughn and Sandra Y. Baughn have failed to demonstrate they are entitled, under IC § 4-21.5-3-7, to administrative review by the Natural Resources Commission of an agency order by the Department of Natural Resources.  The Commission lacks subject matter jurisdiction, under IC § 14-26-2 and 312 IAC § 11-1 through 312 IAC § 11-5, to determine slip rate charges by the riparian owner for a temporary pier located on Lake Maxinkuckee.  The petition for administrative review is denied.  Denial of the petition is explicitly made without prejudice to the Baughns to seek redress of their grievances from a court of general jurisdiction.

 

 

Findings of Fact and Conclusions of Law

 

1. On January 13, 2008, Joseph H. Baughn and Sandra Y. Baughn (the “Baughns”) sent correspondence to the Natural Resources Commission (the “Commission”) which stated in substantive part:

 

The office of Indiana Secretary of State Todd Rokita has recommended we contact you about this matter.

 

We currently rent a boat slip from the City of Culver that is physically in Lake Maxinkuckee, a lake owned by the State of Indiana.  Culver is charging us a higher rate [$1000 annually compared to $700 for a resident of Culver (and said township)] for the slip because we don’t live in the township that Culver is in.  We do have a second home in the Culver area with a Culver address.  In other words, we pay a higher fee for the same services as other Indiana citizens.  We have our main residence in Indianapolis so we are citizens of Indiana and pay taxes that support Lake Maxinkuckee.

 

To me this is the same as Brown County State Park charging me a higher entry fee than that paid by the citizens of Brown County.

 

I don’t understand how a city in Indiana can charge one Indiana citizen a higher rate for services than another citizen of Indiana.

 

We believe Culver is practicing an unfair pricing policy because the lake doesn’t belong to Culver.  It is property owned by all citizens of Indiana including us.  Please advise.

 

[VOLUME 11, PAGE 262]

 

2. In response to the correspondence described in Finding 1, Stephen L. Lucas, Director of the Commission’s Division of Hearings, provided correspondence on January 15, 2008 which stated in substantive part:

 

This letter is in response to your letter of January 13, 2008.  I am pleased to reply.  Some of the answer depends upon facts not identified in your letter, so I’ll make what seem to me the most likely assumptions.

 

There are legal distinctions between the circumstances you describe in Culver and regarding Brown County State Park.  The terms of usage at Brown County State Park are set by the Department of Natural Resources (the “DNR”) as the proprietor of the real estate where the park is located.  Those terms include a general admission fee and special fees for special services such as horseback riding.

 

Although you do not describe with particularity how you enter the site where the pier attaches to real estate in Culver, my assumption is that the Town is the proprietor.  The site may be a town park or another facility where the Town of Culver owns the adjoining real estate—is what is referred to as the “riparian owner”.

 

The [Commission] provides administrative review (commonly called an “appeal”), but only where the Indiana General Assembly has conferred jurisdiction to the Commission.  One instance where Commission jurisdiction could apply is to licensure activities within a state park such as Brown County State Park.  The reason is that the Commission, acting through an administrative law judge, generally has jurisdiction over DNR licensure actions.

 

The General Assembly has also given the Commission jurisdiction over instances of usage within public freshwater lakes, such as Lake Maxinkuckee.  For example, if ther were a dispute between riparian owner neighbors on Lake Maxinkuckee, the Commission would have jurisdiction to consider the dispute.  The legal basis for this authority is IC 14-26-2 (…the “Lakes Preservation Act”) and rules adopted to help implement the Lakes Preservation Act at 312 IAC 11-1 through 312 IAC 11-5.  You may review various situations in which the Commission has exercised jurisdiction under the Lakes Preservation Act through its website.  At http://www.ai.org/nrc/2354.htm, there is a discussion of Appeals.  Clicking on the link for CADDNAR would take you to a search engine.  Entry of a word such as “piers” or “lake” in the search engine would lead you to numerous Commission decisions applying the Lakes Preservation Act.

 

To the best of my knowledge, the General Assembly has not provided the Commission with jurisdiction to regulate town or county parks.  As a result, the Commission cannot provide administrative review of terms of usage for those parks, such as the review of entry or other fees charged by the town or county for managed facilities.  Unlike fees at a state park (which is a DNR matter), fees at a town park are a local matter.

 

[VOLUME 11, PAGE 263]

 

If after you read the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5, you determine a basis for an appeal exists in your favor, you may seek administrative review through our office.  The procedures governing such an appeal are set forth in IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission to assist with its implement of AOPA at 312 IAC 3-1.  Both AOPA and 312 IAC 3-1 may be accessed online through the webpage of the Indiana General Assembly at http://in.gov/legislative/.  From that page, click on the link for Laws and Administrative Rules.

 

My hope is that this response has been informative to you.

 

3. In reply to the response described in Finding 2, the Baughns wrote on January 22, 2008:

 

Thank you for your prompt reply to our letter of January 13, 2008 regarding the issue of being charged more for dock space in Lake Maxinkuckee than those who reside in Dulver proper (we have a second home with a Culver address but it is located in Fulton County).

 

The piers in question run out into Lake Maxinkuckee from land that is apparently owned by the Culver Park and Recreation Dept.  The space we rent, however, is located in or on property that is not owned by Culver, rather the State of Indiana (you and me for example).

 

We understand why they can charge a citizen of another state a larger fee to rent space.  The irony of the situation is, however, that many of the people who get the favorable “Culver” fee are not residents of Indiana but other states (they have summer homes in Culver).  We pay income taxes in Indiana and property taxes in not one Indiana county, but two (Fulton and Marion).

 

We believe the Commission does and should have jurisdiction over a dispute that involves renting space that is owned by the State of Indiana and under the auspices of the DNR.  Although the pies are owned by Culver they are being placed in property owned by the State of Indiana.  It would seem to me the Commission has the right to govern how Culver sets its fees, particularly when it favors one Indiana citizen over another Indiana citizen.  We believe this is a practice that would not hold up to legal scrutiny.

 

4. 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).  

 

 

[VOLUME 11, PAGE 264]

 

5. The Indiana General Assembly has enacted AOPA to govern the procedures for administrative review.  The DNR is an agency which is subject to AOPA, and the Commission is the “ultimate authority” under IC § 4-21.5-1-15 for the DNR.  IC § 14-10-2-3.  For this proceeding, IC § 4-21.5-3-7(a)(1) provides that to qualify for administrative review of a DNR “order”, a person must “petition for review in a writing that states facts demonstrating that:

            (A) the petitioner is a person to whom the order is specifically directed;

            (B) the petitioner is aggrieved or adversely affected by the order; or

            (C) the petitioner is entitled to review under any law.”

 

6. Under AOPA, an “order” refers to “an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons.  The term includes…a license.”  IC § 4-21.5-1-9.

 

7. Under AOPA, a “license” refers to “a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law.”  IC § 4-21.5-1-8.

 

8. Under AOPA, an “agency action” refers to the following:

“(1) The whole or a part of an order.

(2) The failure to issue an order.

(3) An agency’s performance of, or failure to perform, any other duty, function, or activity under” AOPA.  IC § 4-21.5-1-4.

 

9. Baughns do not dispute that the Town of Culver (or the Culver Park and Recreation Department) owns the land from which the “piers in question run out into Lake Maxinkuckee”. 

 

10. The system of law dominant in Great Britain and in the eastern United States, including Indiana, in which owners of lands along a river, stream or lake have the right to reasonable use of the waters, and a correlative right protecting against unreasonable use by others, is riparian doctrine.  The property rights associated with land ownership along rivers, streams and lakes are riparian rights.[1]

 

11. “The first, and most basic, right of a riparian owner is access to the water.”  1 Dellapenna, Waters and Water Rights §6.01(a)(1) (LexisNexis 2007).  A structure in support of navigation, such as pier, can be a legitimate exercise of riparian rights.  Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992).

 

12. Within the lateral boundaries of its terrestrial lands, a riparian owner enjoys private ownership of a pier on a navigable waterway, although the ownership is subject to the navigational servitude of the United States and the public trust of the State.  Dellapenna, Waters and Water Rights §6.01(a)(2) (LexisNexis 2007) and Bath v. Courts, 459 N.E.2d 72 (Ind. App. 1984). 

 

[VOLUME 11, PAGE 265]

 

13. Baughns do not dispute that the Town of Culver (or the Culver Park and Recreation Department) is the owner of the piers in question.

 

14. The Baughns base their claim on the premise that the Town of Culver is “renting space that is owned by the State of Indiana and under the auspices of the DNR.”  The space is within Lake Maxinkuckee in Marshall County.

 

15. Lake Maxinkuckee is a “public freshwater lake” and subject to IC § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Commission at 312 IAC § 11-1 through 312 IAC § 11-5 to assist with implementation of the Lakes Preservation Act.  Roberts v. Beachview Properties, LLC, Harbour Condominiums, and DNR, 10 Caddnar 125, 136 (2005).

 

16. The purposes of the Lakes Preservation Act are set forth at 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.
            (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.

 

17. The Lakes Preservation Act does not eliminate riparian rights.  As stated 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.”  The Court further observed that “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.”

 

[VOLUME 11, PAGE 266]

 

18. With 312 IAC § 11-1 through 312 IAC § 11-5, the Commission supports the Lakes Preservation Act and seeks to implement the public trust without causing the elimination of riparian rights.  A licensure process considers natural resources and recreation, with regard for navigation and public safety.  A general license is accorded for temporary piers that are deemed unlikely to pose harm to the public rights described in IC 14-26-2-5.  Excepted from qualification for a general license are “group piers” and “marinas”.  IC § 14-26-2-23 and 312 IAC § 11-3-1. 

 

19. Within the authority of the Lakes Preservation Act, as implemented through 312 IAC § 11-1 through 312 IAC § 11-5, the Commission has subject matter jurisdiction to consider the propriety of placement of the subject pier.  This authority includes the broad concept of what constitutes an “order” and the elements of licensure under AOPA.

 

20. The Lakes Preservation Act does not, however, provide the Commission with authority to regulate the internal business affairs of a riparian owner.  The Commission has appropriately enacted no rules to control how a riparian owner may allocate or assess fees for the use of a pier or other improvement along a public freshwater lake.  Although a Circuit Court or a Superior Court with general jurisdiction may have authority to consider a claim directed to discriminatory slip rates by a riparian owner, the Lakes Preservation Act does not delegate this power to the Commission.

 

21. Because the Town of Culver (or the Culver Parks and Recreation Department) is indicated as the likely owner of the pier in question, the Town of Culver is a necessary party in interest.

 

22. Because the DNR is the licensing authority for the placement of piers and similar structures within Lake Maxinkuckee, the DNR is a necessary party in interest.

 

23. The Town of Culver and the DNR are added as parties.

 



[1] Property rights associated with rivers and streams were traditionally known as “riparian rights”, while those associated with lakes were traditionally known as “littoral rights”.  In Indiana, the single term “riparian rights” is today used by the courts to describe the rights of property owners along rivers, streams, and lakes.  Parkison v. McCue, 831 N.E.2d 118, 128, Footnote 3 (Ind. App. 2005).