[CITE: Dean and Marilyn Ray v. Lukis, et al.,
12 CADDNAR 69 (2009)]
[VOLUME 12, PAGE 69]
Cause #: 09-057W
Caption: Dean and
Marilyn Ray v. Lukis, et al.
Administrative Law
Judge: Jensen
Attorneys: Ray (pro
se); Lukis (Snyder); Wyndham (DNR, Third Party Respondent)
Date: June 26, 2009
FINAL ORDER GRANTING RESPONDENT,
MICHAEL LUKIS’, MOTION TO DISMISS
CASE SUMMARY:
1. The instant proceeding was initiated by Claimant, Dean A, Ray (Ray), with the filing of correspondence on March 18, 2009, which sought to “resolve an access issue at Lake James…I previously requested a proceeding to resolve a pier placement issue (CADDNAR #05-101W) that was previously adjudicated with an Appeals Court Ruling dated June 13, 2008. The riparian zones establishing by Administrative Cause # 05-101W, leaves me without access to navigable water exclusive of any other owner.”
2. Ray
further states that that the
3. Ray concludes his correspondence by stating, “I am seeking to establish my riparian zone in such a manner that I will have exclusive access to navigable water, which the Appeals Court has assured is the right of every riparian owner.”
4. In separate correspondence filed with the Natural Resources Commission (Commission) on April 14, 2009, Ray identified the persons who have competing interests or who may be affected by the outcome of the instant proceeding. The persons identified by Ray, were identified as Respondents to the instant proceeding.
5. On April 20, 2009, the administrative law judge issued a Notice of Prehearing Conference notifying the parties that a prehearing conference was scheduled to occur on May 14, 2009.
6. Intervening between the issuance of the Notice of Prehearing Conference and the date scheduled for the prehearing conference, was the filing of a Motion to Dismiss on April 27, 2009, by Counsel, Stephen R. Snyder, on behalf of Respondent, Michael Lukis (Lukis).
7. The prehearing conference was vacated and a briefing schedule relating to Lukis’ Motion to Dismiss was established.
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8. All parties were provided the opportunity to participate in the briefing associated with Lukis’ Motion to Dismiss, with briefs in response being due not later than June 8, 2009 and Lukis being provided until June 22, 2009 to file a reply to any filed response briefs.
9. On May 27, 2009 Ray filed his Response to Motion to Dismiss and on June 17, 2009 Lukis filed his Reply.
10. On April 28, 2009, the Department of Natural Resources (Department) by Counsel, Eric L. Wyndham, notified the administrative law judge of its desire to be placed on the interested party list for the instant proceeding but expressly stating that there was no intent, at that time, to enter an appearance. However, on June 10, 2009, the Department filed its Petition to Intervene, which was granted on June 12, 2009.
11. In granting the Department’s Petition to Intervene, the administrative law judge noted the briefing schedule and further noted, in accordance with DNR and Heath v. Wal-Mart, 8 CADDNAR 171 (2000), citing City of New Haven v. Chemical Waste Management of Indiana, 685 N.E.2d 97, (Ind. App. 1997), that the Department received the instant proceeding in its state of existence on the date of filing its Petition.
12. The deadline for filing a response to Lukis’ Motion to Dismiss had expired two (2) days before the Department filed its Petition to Intervene.
13. The Commission possesses jurisdiction over the subject matter of this proceeding by virtue of Indiana Code § 14-26-2-23(e) and rules adopted under the authority thereof, which are found at 312 IAC 11-3-1 and 312 IAC 11-3-2.
14. Service of the Notice of Prehearing Conference, which included a copy of Ray’s correspondence by which the instant proceeding was initiated, was attempted by both certified and first class mail upon each Respondent identified. Service upon Lukis is evidenced by his participation in the instant proceeding. Service upon Peter Wehrenberg, Thomas Scheele, Thomas Blackburn and John Blackburn is confirmed by the receipt by return mail of certified cards contained within the record of the instant proceeding. While the certified mail issued to Kim Wehrenberg, James Wehrenberg, Holly Wehrenberg Oliver and Gretchen Wehrenberg Stewart was returned unclaimed, the same notices served by United States First Class mail were not returned. Service by United States First Class mail is sufficient. Indiana Code § 4-21.5-3-1(b). The Commission possesses jurisdiction over the persons of the parties to the instant proceeding.
MOTION TO DISMISS:
15. Lukis filed his Memorandum in Support of Motion to Dismiss, stating that despite Chief Judge Baker’s statements in Lukis, supra the instant proceeding to determine Ray’s riparian rights is barred by administrative res judicata.
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16. While acknowledging Chief Judge Baker’s statements regarding Ray’s ability to initiate a new proceeding before the Commission to address his access to navigable waters, Lukis notes that Ray ignores Chief Judge Baker’s determination that the homeowner association’s constitution and bylaws should have controlled the determination in the previous proceeding. Lukis continues by pointing out that those bylaws dictate that the riparian rights of a homeowner are limited to the area determined by extending landward property lines lakeward, which although done for other reasons, is what the administrative law judge did in Ray v. Blackburn and Lukis, et al., 10 CADDNAR 400, (2006), and is what the Court of Appeals affirmed in Lukis.
17. Ray responded to Lukis’ Motion to Dismiss by elaborating upon the information contained within his initial correspondence. Ray notes particularly that the previous order of the Commission in Ray, supra denies him access to navigable water, the ability to build a pier out to the line of navigability and by being denied access to navigable waters also denies him the ability to use the water for boating. Ray concludes that three of the four rights of riparian owners as set forth in Parkinson, as cited in Lukis, supra, have been denied to him.
18. Ray dismisses Lukis’ argument that the restrictions set forth in the homeowner association’s constitution and bylaws control the determination of riparian rights and access to navigable water stating that Chief Judge Baker’s opinion makes clear that the by-laws are secondary to those riparian rights as set forth in Parkinson.
19. In responding to Lukis’ claim that the instant proceeding is barred by administrative res judicata, Ray relies upon Chief Judge Baker’s statements within Lukis, supra as having “created the ability and the necessity for this cause to be filed and adjudicated”. Ray’s March 18, 2009 correspondence.
20. The administrative law judge notes that while Parkinson assures each riparian owner access to navigable water, it does not guarantee to each riparian owner “access to navigable water exclusive of any other owner”, which is what Ray is seeking. Id.
21. Given that Ray’s access to navigable water is not required to be exclusive of any other owner, Chief Judge Baker’s determination that the homeowner association’s constitution and bylaws control the determination of each homeowner’s riparian rights is not inconsistent with and does not require that determination to be placed in a subservient position to Chief Judge Baker’s other determination, based upon Parkinson, that Ray is entitled to access to navigable waters.
22. The administrative law judge declines to become further involved in the parties’ debate over the statements of Chief Judge Baker or the impact of those statements except to conclude that those statements do not override longstanding legal principles or the applicability of those principles to the instant proceeding.
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23. “There is no doubt that the general principle of res judicata and collateral estoppel apply to NRC (Commission) adjudications.” Hoosier Environmental Council v. DNR and Foertsch Construction Company, Inc., 7 CADDNAR 162, 1997, referencing South Bend Federation of Teachers v. National Education Association South Bend, 389 N.E. 23, (Ind. App. 1979).
24. Administrative res judicata is applicable when a “particular issue is adjudicated and then is put into issue in a subsequent suit on a different cause of action between the same parties or those in privity with them.” South Bend, supra at 32.
25. In determining the applicability of administrative res judicata,
We examine whether (1) the issues sought to be estopped were in the statutory jurisdiction of the agency; (2) the agency was acting in a judicial capacity; (3) both parties had a fair opportunity to litigate the issues: and (4) the decision of the administrative tribunal could be appealed to a judicial tribunal.
Weiss v. Indiana Family and Social Services Administration, Division of Disability, Aging and Rehabilitative Services, 741 N.E.2d 398, 401, (Ind. App. 2000).
26. The purpose of res judicata is to prevent the “relitigation not only of matters conclusively decided in a previous action, but ones that a party could have litigated” in that previous litigation. Id., citing Wedel v. American Elec. Power Serv. Corp., 681 N.E.2d 1122, 1131 (Ind. Ct. App. 1997).
27. In determining whether a second proceeding is barred by the adjudication of a previous administrative proceeding involves a determination as to whether both actions are supported by the same evidence. Id., citing Bojrab v. John Carr Agency, 597 N.E.2d 376, 378, (Ind. Ct. App. 1992).
28. With the exception of the Department as an intervening party, the parties to the instant proceeding are identical to the parties involved in Ray, supra.
29. The full adjudication of Ray, supra, clearly confirms that the issues to be determined were within the jurisdiction of the Commission, which was acting within its judicial capacity.
30. The final order entered in Ray is based upon evidence received during an administrative hearing at which each of the parties were fully and fairly provided the opportunity to litigate the issues and thereafter have their objections to the administrative law judge’s nonfinal order heard by the AOPA Committee of the Commission.
31. Additionally, the Commission’s final order in Ray was subjected to judicial review and ultimately consideration by the Indiana Court of Appeals, which issued the decision in Lukis, supra.
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32. The only question remaining is whether the issue to be resolved in the instant proceeding is the same as the issue resolved in Ray, supra.
33. Lukis maintains that the issues presented by Ray in the first proceeding are the same as the issues presented in the instant proceeding.
34. Ray, in opposition to Lukis’ contention, states that the instant proceeding “has little to do with the establishment of riparian zones and has much to do with riparian rights and access to navigable water.” Ray’s Response to Motion to Dismiss.
35. The first proceeding, which ended with the issuance of the final order reported at Ray, supra, was initiated by Ray’s correspondence alleging that the Lukis and the Blackburn piers were positioned in such a way as to cross Ray’s lake frontage leading Ray to believe that his “riparian rights are being denied by the placement of both the Lukis and the Blackburn piers. (Article 11, Lake Construction Activities, Rule 3, 312 IAC 11-3-1(b),(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.)”
36. Consistent with Ray’s request for relief in the first proceeding, the Final Order issued by the Commission in Ray, supra addresses not only the identification of the respective riparian owner’s riparian zone, but also addresses each riparian owner’s access to Lake James by stating:
130. Riparian zones of the respective parties are determinable by extending their onshore property lines lakeward. Lukis’, Ray’s and the Blackburns’ riparian zones are conclusively depicted in Exhibit II, page 1, which is attached and incorporated as Appendix A. The exact boundaries of the riparian zones controlled by the Wehrenbergs and Scheele will likely require a survey.
131. Absent a written agreement between impacted parties, each of the parties are obligated to maintain any temporary structure, as well as all appendages to the temporary structure (including watercraft), within their own individual riparian zone.
132. Consistent with the mandate of 312 IAC 11-3-1(b)(2 & 3) no party may place or maintain any temporary structure or any appendage to a temporary structure (including watercraft) within Lake James in a manner that infringes upon another riparian owner’s or the public’s access to Lake James or that serves as an impediment to navigation.
133. Notwithstanding findings 130 through 132, any party whose riparian zone overlaps the riparian zone of any other party shall be prohibited from placing or maintaining any temporary structure or appendage to a temporary structure (including watercraft) within that overlapping riparian area.
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134. Notwithstanding findings 130 through 133, to improve navigational safety as well as provide for unimpeded ingress and egress for the benefit of adjacent riparian owners and the public as specified at 312 IAC 11-3-1(b)(2 & 3), Lukis shall remove the boatlift depicted in Exhibit II, page 2, which is attached and incorporated as Appendix B, from the east side of his temporary pier and is further restricted in his use of his riparian zone to the extent that any temporary structure or appendage to any temporary structure (including watercraft) shall not be placed or maintained closer to Lukis’ eastern property line extended than what is depicted in Exhibit II, page 1, see Appendix A.
Ray, supra at 400.
37. Ray, in the correspondence that initiated the instant proceeding, seeks “to establish my riparian zone in such a manner that I will have exclusive access to navigable water…”
38. What Ray seeks in the instant proceeding is the establishment, or re-establishment, of his riparian zone, which was addressed in Ray, supra, for the purpose of allowing him access to navigable water, which was also addressed in Ray, supra.
39. The evidence that would be presented for the purpose of establishing Ray’s riparian zone to allow access to navigable water in the instant proceeding require the presentation of the same evidence that was, or could have been, presented for the purpose of resolving those same issues in the previous litigation.
40. Ray is not entitled to relitigate issues that were, or could have been, litigated in the previous proceeding.
41. Furthermore, the Respondents should not be subjected to a second adjudication of matters that were, or should have been, conclusively determined in the previous litigation.
42. As between Ray and Respondents, Lukis, Thomas Blackburn, John M. Blackburn, Thomas Scheele and the Wehrenbergs, the instant proceeding is subject to dismissal by application of the doctrine of administrative res judicata.
43. Intervening Respondent, Department of Natural Resources, involved themselves in the proceeding as it existed at the time of their intervention and as such the application of the doctrine of administrative res judicata as to the other parties is equally applicable to the Department.
ORDER:
The instant proceeding is hereby ordered dismissed.