[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
To me
this is the same as
I don’t
understand how a city in
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
[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
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
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
The
General Assembly has also given the Commission jurisdiction over instances of
usage within public freshwater lakes, such as
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
The
piers in question run out into
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
We
believe the Commission does and should have jurisdiction over a dispute that
involves renting space that is owned by the State of
4. Generally, an
[VOLUME 11, PAGE 264]
5. The
(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
10. The system of law dominant in
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 (
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
[VOLUME 11, PAGE 265]
13. Baughns do not dispute that the Town of
14. The Baughns base their claim on the premise that the
Town of
15.
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
(2) public of
(A) The
preservation, protection, and enjoyment of all the public freshwater lakes of
(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
(2) holds and controls all
public freshwater lakes in trust for the use of all of the citizens of
(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
[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
22. Because the DNR is the licensing authority for the
placement of piers and similar structures within
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