[CITE: Szpara v. Perez, 12 CADDNAR 291 (2011)]
[VOLUME 12, PAGE 291]
Cause #: 10-113W
Caption: Szpara v. Perez
Administrative Law Judge: Lucas
Attorneys: Bonahoom (Claimants); Nakos (Perez); Wyndham (DNR)
Date: February 8, 2011
FINAL ORDER OF SUMMARY JUDGMENT
No genuine issue exists as to any material facts. Paul Perez is not a riparian owner and he is not entitled to use the riparian rights of another person within Big Turkey Lake and along real estate owned by Richard Szpara, Stefan Furman, or along the termination of Oak Drive (also known as “Steuben County Road 390 South”), at Lakeside Park Addition, Steuben County, Indiana. At this location, Perez must not place a mooring buoy or another structure, and he must not moor a boat, without the express written permission of a riparian owner. Perez is not prohibited by this Order, however, from using Oak Drive to enter or exit Big Turkey Lake.
Findings of Fact and Conclusions of Law
A. Statement of the Proceeding and Jurisdiction
1. This proceeding was initiated on June 17, 2010 when Richard Szpara and Stefan Furman (collectively, “Szpara and Furman”) filed correspondence (the “complaint”) seeking disposition of a dispute concerning the usage of a portion of the waters of Big Turkey Lake, Steuben County, Indiana. More particularly, they stated their “complaint is against Paul M. Perez (“Perez”) who is the owner of the property at 12020E 390S[1]. This property is not Lake Front, and does not have any deeded lake access. Mr. Perez has moored his boat at the end of 390S on public property.” In addition, the complaint alleged that the Department of Natural Resources (the “DNR”) ordered Perez to remove “his boat and dock”, or Perez would face “daily fines”.
2. Big Turkey Lake is a “public freshwater lake” as the phrase is defined at Ind. Code § 14-26-2-3 and 312 Ind. Admin. Code § 11-2-17. Patterson, et al. v. Wildwood Property Owners Assoc., and DNR, 10 Caddnar 417 (2005).[2] Big Turkey Lake is subject to IC § 14-26 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 IAC § 11 to assist with implementation of the Lakes Preservation Act.
3. The complaint initiates a proceeding that is governed by IC § 4-21.5 (sometimes referred to as 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. Stephen Lucas was appointed the Commission’s administrative law judge under IC § 14-10-2-2. The Commission is the “ultimate authority” under AOPA for this proceeding. IC § 14-10-2-3.
4. The administrative law judge entered a “Notice of Initial Prehearing Conference” on June 24, 2010, with a copy of the complaint attached, and caused its service upon Szpara, Furman, and Perez. In the “Notice of Initial Prehearing Conference”, the DNR was made an additional party because the complaint alleged a prior action by the DNR concerning the subject matter.
5. The initial prehearing conference was conducted as scheduled in Columbia City, Indiana on July 23, 2010. Szpara, Furman, and Perez each appeared in person. The DNR appeared by its attorney.
6. During the July 23 prehearing conference, Perez provided a survey which accurately depicts the site as follows:
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7. Uncontested during the prehearing conference is that Furman is the owner of Lot 34 in Lakeside Park Addition. Lot 34 is west-southwest of Big Turkey Lake and south-southeast of Oak Drive. Szpara is the owner of a lot (the number of which is not identified in the survey), which is immediately across Oak Drive and north northwest of Lot 34, and which also borders Big Turkey Lake. Furman and Szpara are both riparian owners.
8. Oak Drive is generally perpendicular to Big Turkey Lake. The east-northeastern end of Oak Drive terminates at the shoreline of Big Turkey Lake. During the July 23 prehearing conference, each of the parties related conversations with officials from Steuben County regarding the local governmental unit’s claim of legal status for the waters of Big Turkey Lake which are adjacent to the east-northeastern end of Oak Drive. Because the opinions of the parties differed, and because none of the parties present on July 23 were authorized to represent Steuben County, the administrative law judge stated a belief that Steuben County (acting most probably through the Board of Commissioners of Steuben County) was a party needed for just adjudication, unless Steuben County disclaimed any legal interest. He stated he would direct a notice to Steuben County to determine the local unit’s legal position regarding ownership and riparian rights.
9. On July 27, 2010, the administrative law judge entered a “Notice of Intent to Join the Board of Commissioners of Steuben County as a Party Needed for Just Adjudication or a Party where Permissive Joinder is Warranted”. A copy of the notice was served upon the existing parties and upon the Board of Commissioners of Steuben County. Szpara, Furman, Perez, and the Board of Commissioners of Steuben County were provided until September 1, 2010 to file any document or pleading in support or in opposition to an order to join the Board of Commissioners of Steuben County (“Steuben County”) as a party.
10. A telephone status conference was conducted as scheduled on September 27, 2010. By its attorney, Steuben County asserted an interest in the subjects of the proceeding. By their attorney, Szapara and Furman supported the addition of Steuben County as a party needed for just adjudication. By its attorney, the DNR also agreed Steuben County needed to be added as a party. Perez did not oppose the addition of Steuben County as a party. The administrative law judge then ordered Steuben County added as a party needed for just adjudication. Szapara, Furman, Perez, the DNR, and Steuben County are collectively the “Parties”.
11. The Commission has jurisdiction over the subject matter and over the persons of the Parties.
B. Summary Judgment
12. During the September 27 prehearing conference, the Parties agreed that Perez has periodically placed a mooring buoy and moored a boat to the buoy lakeward of Oak Drive in Big Turkey Lake. Upon this factual foundation, the Parties agreed and were then ordered to respond to any motions for summary judgment according to the following schedule:
(A) By November 12, 2010, Szapara and Furman shall file and serve any motion for summary judgment.
(B) By December 13, 2010, Perez, the DNR, and Steuben County shall file and serve any response to any motion for summary judgment by Szapara and Furman, as well as file and serve any counter-motion or cross-motion for summary judgment.
(C) By December 27, 2010, Szapara and Furman may file and serve a reply to the responses of the other of the Parties. On the same date, any other Party shall file and serve any response to another Party’s counter-motion or cross-motion for summary judgment.
13. On November 4, 2010, Szapara and Furman filed their “Motion for Summary Judgment” and “Memorandum of Law in Support of Motion for Summary Judgment”.
14. On December 3, 2010, Perez filed “Respondent’s Response to Claimants’ Motion for Summary Judgment” and “Respondent’s Memorandum of Law in Support of His Response to Claimants’ Motion for Summary Judgment”. Szapara and Furman are the Claimants.
15. On December 27, 2010, the “Claimants’ and Third Party Respondent’s Reply to Respondent’s Response to Claimants’ Motion for Summary Judgment” was filed on behalf of Szapara and Furman, the DNR, and Steuben County.
16. IC 4-21.5-3-23 governs summary judgment under AOPA and provides:
(a) A party may, at any time after a matter is assigned to an administrative law judge, move for a summary judgment in the party’s favor as to all or any part of the issues in a proceeding. The motion must be supported with affidavits or other evidence permitted under this section and set forth specific facts showing that there is not a genuine issue in dispute.
(b) The motion must be served at least five (5) days before the time fixed for the hearing on the motion. The adverse party may serve opposing affidavits before the day of hearing. The administrative law judge may direct the parties to give oral argument on the motion. The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon fewer than all the issues or claims (such as the issue of penalties alone) although there is a genuine issue as to damages or liability, as the case may be. A summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order. The administrative law judge shall designate the issues or claims upon which the judge finds no genuine issue as to any material facts. Summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the administrative law judge may make any order that is just.
(c) If on motion under this section no order is rendered upon the whole case or for all the relief asked and a hearing is necessary, the administrative law judge at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating any person, shall
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if practicable
ascertain:
(1) what material facts exist without substantial controversy; and
(2) what material facts are actually and in good faith controverted.
The administrative law judge shall then make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just. Upon the hearing of the action, the facts specified are established in the judge’s order under this subsection.
(d) Supporting and opposing affidavits must:
(1) be made on personal knowledge;
(2) set forth facts that are admissible in evidence; and
(3) show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.
(e) The administrative law judge may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, further affidavits, or testimony of witnesses.
(f) If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party’s pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth specific facts showing that there is a genuine issue in dispute. If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party.
17. As provided in 312 IAC 3-1-10, an administrative law judge may apply the Trial Rules if not inconsistent with AOPA. Reference may be made to Trial Rule 56 and to reported decisions based upon Trial Rule 56. If Trial Rule 56 is inconsistent with IC 4-21.5-3-23, the latter controls. Roebel, et al. v. Vorndran, et al., 11 Caddnar 250, 253 (2008).
18. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).
19. Summary judgment should be granted only if the evidentiary material shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Booneville Convalescent Ctr., Inc. v. Cloverleaf Healthcare Serv., Inc., 790 N.E.2d 549, 555 (Ind. App. 2003).
20. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.” Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993). “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).
21. In the administrative context, a party moving for summary judgment has the burden of proof with respect to summary judgment, regardless of whether the party would have the burden in an evidentiary hearing. Rosheck v. Mader Dental, 12 Caddnar 251 (2010). See, also, Jarboe v. Landmark Community Newspapers, 644 N.E.2d 118, 123 (Ind. 1994).
22. Once the party moving for summary judgment establishes a lack of material fact, the party responding to the motion must disgorge sufficient facts to show the existence of a genuine triable issue. Cowe by Cowe v. Forum Groups, Inc. 575 N.E.2d 630, 633 (Ind. 1991).
23. This proceeding is ripe for a determination of summary judgment.
C. Riparian Rights and Geographic Extent of Commission Jurisdiction
24. The Commission has regulatory authority under the Lakes Preservation Act over riparian rights disputes in public freshwater lakes, particularly as to the placement of structures. Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. App. 1992) and Egenlauf v. Marshall County Commissioners, 12 Caddnar 262 (2010) and IC 14-26-2-23.
25. Perez has periodically placed a mooring buoy and moored a boat to the buoy lakeward of Oak Drive in Big Turkey Lake.
26. A “mooring buoy” is a facility that is secured to the bottom by moorings and provided with the means for mooring a boat by use of its anchor chain or mooring lines. In its most common form, a mooring buoy is equipped with a ring. McGraw-Hill Dictionary of Scientific and Technical Terms (6th Ed.).
27. A “mooring buoy” is a structure over which the Commission has jurisdiction under the Lakes Preservation Act, including for the disposition of riparian rights disputes.
28. For a person to prevail in a riparian rights dispute, the person must demonstrate either (1) riparian ownership; or, (2) entitlement to exercise the rights of a riparian owner. Egenlauf v. Marshall County Commissioners.
29. Perez is the owner of Lot 35 and Lot 36 in Lakeside Park Addition, and he is not a riparian owner. “Respondent’s Memorandum of Law in Support of His Response to Claimants’ Motion for Summary Judgment” and “Claimants’ and Third Party Respondent’s Reply to Respondent’s Response to Claimants’ Motion for Summary Judgment”. See, also, the survey depicted in Finding 6, which illustrates Lot 35 and Lot 36 are not adjacent to Big Long Lake.
30. A determination that persons are not riparian owners “does not settle the question of whether they are entitled to install and use a dock in the property enjoyment of their easement for right-of-way purposes.” Klotz v. Horn, 558 N.E.2d 1096, 1097 (Ind. 1990), citing Farnes v. Lane, 281 Minn. 222, 161 N.W.2d 297, 301 (Minn. 1968). “The issue is not whether the easement holder attains riparian ownership status, but rather, whether he is entitled to use the riparian rights of the servient tenant who has given him access to the body of water bordering the servient estate.” Emphasis by court omitted.
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31. Similarly, Perez could be entitled to place a mooring buoy if granted the rights of a riparian owner for its placement.
32. Szpara and Furman are riparian owners on opposite sides of Oak Drive and are actively seeking the removal of the mooring buoy. Perez makes no assertion Szpara or Furman have given him permission to use their riparian zones.
33. Donald J. Stuckey, attorney for Steuben County, states in his “Affidavit in Support of Motion for Summary Judgment” that “At no time prior or during the time that the mooring buoy was placed in the lake and the boat attached to the mooring buoy, did Mr. Perez seek or obtain permission from your Affiant or from any authorized employee of Steuben County” to place the mooring buoy or moor the boat. Perez does not refute the statement.[3]
34. The only facts offered by Perez that conceivably pertain to riparian rights are in the “Affidavit of Paul Perez”. He states (with enumerations omitted): “That around late June of 2009, I spoke with Indiana Conservation Officer James Price regarding a pier I had erected in the lake. That during the conversation between myself and Officer Price, I was given permission to use Oak Drive for ingress and egress from Big Turkey Lake. That the property I own on Big Turkey Lake is inaccessible if I do not use Oak Drive.”
35. The record offers no suggestion that Conservation Officer James Price is or may be a riparian owner or that he is authorized to convey riparian rights. The DNR does not claim riparian ownership, and Perez offers no evidence to support a finding the DNR is a riparian owner.
36. Perez contends the issue to be decided is whether Conservation Officer Price gave Perez permission to use Oak Drive for ingress and egress from Big Turkey Lake. The contention is immaterial. Szpara and Furman have not sought to deny Perez access to Big Turkey Lake. They have sought the removal of a mooring buoy and attached boat where Perez lacks riparian ownership or rights provided by a riparian owner. Lake access is quite a different thing than maintaining and using a mooring buoy within the lake. The Final Order would not preclude Perez from launching a boat into the lake anywhere Perez has lawful access, nor would it prohibit him from boating on the public waters of Big Turkey Lake.
37. Even if Szpara and Furman sought to preclude Perez from obtaining access to Big Turkey Lake by impeding the use of Oak Drive, the Commission could not provide relief. In Pipp v. Spitler, et al., 11 Caddnar 39 (2007), the Commission ruled it had jurisdiction concerning the placement of piers and similar structures within the shoreline of a public freshwater lake, but jurisdiction regarding the management of land use outside the shoreline was the province of local government. In Pipp, the Commission found the board of commissioners had jurisdiction over a roadway until it reached the shoreline of a public freshwater lake. Similarly, landward of the shoreline management of Oak Drive, jurisdiction rests not with the Commission but with Steuben County.
38. Within the shoreline of Big Turkey Lake at and near where Oak Drive terminates, there is no genuine issue of fact. Perez is neither a riparian owner nor does he have the rights of a riparian owner. To place a mooring buoy and moor a boat, a person must be a riparian owner or have the rights of a riparian owner. Landward of the shoreline, the Commission has no jurisdiction to govern use of Oak Drive.
D. Standing
39. Perez cites Zapffe v. Srbeny cited previously for the proposition “Title 13 of the Indiana Code does not confer upon individual litigants a right of action for violations.” As provided in Zapffe at page 181:
The Zapffes next make the argument that a non-riparian owner…is prohibited from maintaining a pier or boat moorings in the lake bed under IC 13-2-4-5 and IC 13-2-11.1-2. This argument must fail for the reason that the Zapffes do not have standing to enforce these statutes. As Srbeny correctly observes, title 13 of the Indiana Code does not confer upon individual litigants a right of action for violations of its chapters. IC 13-2-11.1-2. Sections 12 and 13 of chapter 11.1 empower the state, through the DNR, to seek an injunction or damages for violations of chapter 11.1.
40. An antecedent of the Lakes Preservation Act was codified at IC 13-2-11.1 when Zapffe was decided in 1992, but it was recodified to IC 14-26-2 in 1995. Since 1995, the Indiana General Assembly has authorized enforcement that is governed by AOPA and is subject to judicial review, in addition to authority for seeking injunctive relief in a civil court. A notice of violation may be issued under IC 14-25.5 to enforce the provisions of the Lakes Preservation Act.
41. More importantly, the Lakes Preservation Act was amended subsequent to Zapffe, with the addition of IC 14-26-2-23, which includes authority to address riparian rights disputes. This proceeding is not an action to enforce a violation of the Lakes Preservation [Act (inserted by Editor)]. This proceeding considers a riparian rights dispute in which Szparza, Furman, and Steuben County assert that Perez is interfering with their respective riparian rights.
42. Finally, the DNR was not a party in Zapffe. The DNR is a party to this proceeding and is participating in the adjudication. The DNR would be well situated to raise “standing” as a defense, if that were the DNR’s inclination.
43. The Commission has standing to determine this riparian rights dispute.