CADDNAR

[CITE: McCulloch v. Day, 12 CADDNAR 85 (2009)]

 

[VOLUME 12, PAGE 85]

 

Cause #: 09-114W

Caption: McCulloch v. Day

Administrative Law Judge: Lucas

Attorneys: pro se (McCulloch); pro se (Day)

Date: July 14, 2009

 

 

FINAL ORDER DENYING PETITION FOR ADMINISTRATIVE REVIEW

 

Michael McCulloch has failed to demonstrate he is entitled, under IC § 4-21.5-3-7, to administrative review by the Natural Resources Commission.  The Commission lacks subject-matter jurisdiction, under IC § 14-26-2 and 312 IAC § 11-1 through 312 IAC § 11-5, to determine the propriety of storing dock and related items landward of the shoreline or water line of Jimmerson Lake.  In addition, the issue was recently addressed by the Commission in McCulloch v. Day & Schramm, 12 Caddnar 40 (2009).  The prior McCulloch decision must now be given administrative res judicata effect.  For either and both of these reasons, the petition for administrative review is denied.  The denial is explicitly made without prejudice to McCulloch to seek redress of his grievances from a court of general jurisdiction.

 

 

Findings of Fact and Conclusions of Law

 

1. On June 15, 2009, Michael McCulloch (“McCulloch”) filed a petition with the Natural Resources Commission (the “Commission”) which described a dispute with Donald Day and Gerald Schramm (“Day and Schramm”) as to usage of land in Lury’s Cove Addition on the east side of Jimmerson Lake, Steuben County, Indiana.  The petition alleges Day and Schramm “are storing their dock and related items on the landward DNR controlled 10’ area” adjacent to Jimmerson Lake.  “The dock storage by [Day and Schramm] prohibits the intended use of the boat landing by restricting the launching or loading of watercraft.”

 

2. The petition described in Finding 1 seeks administrative review from the Commission.

 

3. The Indiana General Assembly enacted IC § 4-21.5 (the “Administrative Orders and Procedures Act” or “AOPA”) to govern procedures for administrative review.  The Department of Natural Resources (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.  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.”

 

4. 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.”  IC § 4-21.5-1-9.

 

5. 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.

 

6. 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]

 

[VOLUME 12, PAGE 86]

 

7. “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).

 

8. 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). 

 

9. Jimmerson Lake is a “public freshwater lake” and is 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.  John Nelson v. DNR, 2 Caddnar 17 (1986) and Kinder v. Department of Natural Resources, 8 Caddnar 23 (1998).

 

10. 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.

 

11. 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). 

 

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

 

13. Antecedent to the Lakes Preservation Act were Acts 1947, c. 181, that were approved on March 12, 1947, and that provided in pertinent part:

 

…For the purpose of this act, the water or shoreline of a public fresh water lake shall mean the normal water line which has existed during the past ten years from the time of the passage of this act where the presence and action of the water are so common and usual as marked upon the soil of the bed a character distinct from that of the banks in respect to vegetation as well as the nature of the soil…. 

 

14. Also antecedent to the Lakes Preservation Act were Acts 1947, c. 301, that were approved on March 13, 1947, and that 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 fresh water lakes, of Indiana in their present state, and the use of such waters for recreational purposes.

...For the purpose of this act, the natural resources of public fresh water lakes shall mean the water, fish, plant life and minerals and the natural scenic beauty shall mean the natural condition as left by nature without man-made additions or alterations.....

....

...It shall be unlawful for any person...to encroach upon the...shore line of any such lakes as now exist...by excavating...below the water or shore line which had existed during the past ten years from the time of the passage of this act, without first securing written approval of the Indiana Department of Conservation [now the DNR].

 

[VOLUME 12, PAGE 87]

 

15. From its antecedents in 1947, the geographic authority of the Lakes Preservation Act has ordinarily been the shoreline or water line and within a public freshwater lake.  Jansing v. DNR and Hawkins, et al.,11 Caddnar 8, 35 (2007).  The term “shoreline or water line” is today defined at IC § 14-26-2-4.

 

16. The Commission has held consistently that disputes regarding land use, which are outside the shoreline or water line of a public freshwater lake, are exclusively matters of local control.  Illustrative is Pipp v. Spitler, et al., 11 Caddnar 39 (2007).  The Commission there determined the Board of Commissioners of Kosciusko County had jurisdiction over a roadway which terminated at the shoreline of Lake Wawasee, a public freshwater lake.  Extending into the lake from the roadway was a navigational channel, and the parties to the adjudication could not unreasonably impede boating through the channel.  The Board of Commissioners was unfettered in its management of the roadway, however, and could cause its vacation under applicable law, even though the consequence would be to negate the utility of the navigation channel.

 

17. In 2006, the Indiana General Assembly made a limited expansion of the geographic authority of the Lakes Preservation Act to include the construction of a “wall” having its lowest point below the elevation of the shoreline or water line, and within ten feet landward of the shoreline or water line, measured perpendicularly.  P.L. 152-2006, SEC. 3 as codified at IC § 14-26-2-23(a)(2).  McCulloch’s averments here do not address the construction of a wall and do not legally support application of this expanded geographic authority.

 

18. For purposes of this proceeding, the geographic authority of the Commission is limited by the Lakes Preservation Act to the areas along the shoreline or water line and within Jimmerson Lake.

 

19. McCulloch avers activities by Day and Schramm which are landward of the shoreline or water line of Jimmerson Lake.  These activities are not of a nature that would invoke the Commission’s limited expanded geographic jurisdiction under IC § 14-26-2-23(a)(2).  As a matter of law, the Commission lacks subject-matter jurisdiction to grant the relief sought in the petition referenced in Finding 1.

 

20. Standing alone, these legal principles form a sufficient basis on which to deny McCulloch’s petition for administrative review under IC § 4-21.5-3-7(a).

21. But here McCulloch’s petition must be denied under the additional basis of administrative res judicata.

 

22. The principles of administrative res judicata hold that, absent a change in conditions or circumstances, the agency should not indiscriminately or repeatedly consider the same evidence and announce a contrary decision.  To do so would be unacceptable.  Lindemann v. Wood, 799 N.E. 2d 1230, 1234, (Ind. Tax 2003) and Rekeweg v. Nix, 12 Caddnar 75, 80 (2009).

 

23. The same essential claim as set forth in McCulloch’s petition in Finding 1 was also considered and rejected by the Commission for lack of jurisdiction, following an evidentiary hearing, in McCulloch v. Day & Schramm, 12 Caddnar 40, (2009).

 

24. For the Commission to reconsider the same law and evidence as was considered in McCulloch v. Day & Schramm, 12 Caddnar 40, would either result in a redundancy or in a contrary decision.  To do so would be unacceptable under the principles of administrative res judicata.

 

25. McCulloch v. Day & Schramm, 12 Caddnar 40, must now be given res judicata effect.

 

26. As stated in McCulloch v. Day & Schramm, 12 Caddnar at page 46, McCulloch is “not foreclosed from seeking redress, in a court of jurisdiction, for wrongful conduct alleged to have occurred outside the shoreline or water line of Jimmerson Lake.”  The Commission is neither approving nor disapproving the conduct because it is conduct which the Commission has no legal authority to address.