[CITE: Egenlauf v. Marshall County Comm’nrs, 12 CADDNAR 262 (2010)]
[VOLUME 12, PAGE 262]
Cause: #10-114W
Caption: Egenlauf v. Marshall County Comm’nrs
Administrative Law Judge: Lucas
Attorneys: Egenlauf (pro se); Clevenger (Marshall County Comm’nrs)
Date: September 1, 2010
FINAL ORDER OF DISMISSAL FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
For the reasons set forth in the Findings, a final order of dismissal is entered for failure by the Claimants to state a claim on which the Natural Resources Commission can grant relief. A person who wishes to seek judicial review must file a petition in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.
Findings
A. Statement of the Proceeding
1. In an email dated June 23, 2010, Joe Egenlauf and Dawn Egenlauf (the “Egenlaufs”) sought administrative review of a riparian rights dispute within Lake of the Woods, Marshall County and adjacent to the terminus of Addison Street in the Smiths East Shore Park Subdivision. Lake of the Woods is a “public freshwater lake” and subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and 312 IAC 11-1 through 312 IAC 11-5. LeVeque v. Sorocco, Jr. and DNR, 12 Caddnar 187 (2009).
2. The Department of Natural Resources (the “DNR”) is the state agency which administers the Lakes Preservation Act, and the Natural Resources Commission (the “Commission”) is the “ultimate authority” for the DNR under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”). IC 14-10-2-3.
3. The Commission has adopted rules at 312 IAC 3-1 to assist with implementation of AOPA. In particular, the DNR and the Commission are responsible for assisting with the resolution of riparian rights disputes within public freshwater lakes. IC 14-26-2-23. Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008), transfer denied.
4. Among the Respondents to the Egenlaufs’ request for administrative review was the Board of Commissioners of Marshall County (the “Marshall County Commissioners”). On July 8, 2010, the Marshall County Commissioners by their attorney, James N. Clevenger, filed a “Motion to Dismiss Board of Commissioners of Marshall County”.
5. In an “Order for Schedule to Respond to Motion to Dismiss Board of Commissioners of Marshall County and Notice of Rescheduled Prehearing Conference” entered on July 13, 2010, the Commission’s administrative law judge provided the parties with opportunities to argue the motion to dismiss. The parties other than the Marshall County Commissioners were granted until August 12, 2010 to file and serve any response. The Marshall County Commissioners were granted until August 23, 2010 to file and serve any reply to a response.
6. The Egenlaufs filed a timely response on August 6, 2010. “Marshall County’s Reply” was timely filed on August 13, 2010.
7. The DNR, and, on administrative review, the Commission have subject-matter jurisdiction and jurisdiction over the parties.
8. The “Motion to Dismiss Board of Commissioners of Marshall County” is ripe for disposition.
B. Dedicated Public Easements Termination at the Shoreline
9. 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 is the province of local government. The Commission found 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 persons could not unreasonably impede boating through the channel. The Commission reasoned the Board of Commissioners managed the roadway and could cause its vacation, even though the consequence would be to negate the utility of the navigation channel. To similar effect is Spaw v. Ashley, 12 Caddnar 233 (2010).
10. The Commission’s ruling in Pipp is consistent with other jurisdictions. Where a road is laid out or dedicated to a navigable waterway, the dedication runs to the shoreline but does not include the land under the water. 26 C.J.S. Dedications § 71 (2001).
11. In “Marshall County’s Reply”, the Marshall County Commissioners reported ruling on June 21, 2010 that “certain accesses to the Lake of the Woods were public accesses and that certain accesses were private accesses…. As for those accesses found to be public rights-of-way including Addison Street in Smith’s East Shore Park Subdivision in the Lake of the Woods, [the Marshall County Commissioners found] that said accesses would remain open to the public for ingress and egress to the Lake as was set out by the original dedication of said public access.”
12. The Marshall County Commissioners administer their road and streets. The Commission has no jurisdiction over the original dedications of public access or over the affirmations of these dedications.
[VOLUME 12, PAGE 263]
C. Commission Review of Riparian Disputes in Public Freshwater Lakes
13. 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. The authority extends to interference with riparian rights by a public entity as well as by a private entity. Indeed, the Lakes Preservation Act specifically authorizes a landowner to seek mediation to address DNR interference with riparian rights. If mediation is unsuccessful, the landowner may seek administrative review and subsequently judicial review. IC 14-26-2-23(e)(3) and IC 14-26-2-23(f).
14. For a claimant to obtain Commission review of a riparian rights dispute, a threshold requirement is a showing either that the claimant has (1) riparian ownership; or, (2) entitlement through a qualified easement to exercise the rights of a riparian owner.
15. The Egenlaufs do not contend they are riparian owners. Yet 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 omitted.
16. The Egenlaufs contend entitlement to the usage of a public easement formed by Addison Street. The use would have been permissive as described in the original dedication of access and affirmation of the dedication by the Marshall County Commissioners. A claim of entitlement to a dedicated public easement is not unique to a particular off-lake landowner. The governmental entity that approves the dedication becomes the trustee for the public as a whole. Bass v. Salyer, 923 N.E.2d 961, 966 (Ind. App. 2010).
17. If the Egenlaufs claim their use of the public easement was expanded to their benefit beyond the terms of the dedication, through adverse possession or a prescriptive easement landward of the shoreline, they may present the claim to a circuit or superior court.
18. There is currently no basis on which the Commission could determine the Egenlaufs are entitled to the riparian rights of the grantor of the dedicated public easement. Addison Street forms a public easement, which was approved by the Marshall County Commissioners, and for which the Marshall County Commissioners serve as trustee for the general public.
19. The Egenlaufs have failed to offer any foundation on which the Commission could determine they are riparian owners or entitled through a qualified easement to exercise the rights of a riparian owner. The Egenlaufs have not met the threshold requirement for obtaining administrative review.
D. Proposed Dismissal for Failure to State a Claim
20. On August 17, 2010, an “Order of Proposed Dismissal for Failure to State a Claim upon which Relief Can be Granted and Cancellation of Initial Prehearing Conference” was entered. After reviewing the pleadings and other documents, the administrative law judge found a notice of proposed dismissal should be entered against the Egenlaufs for failure to state a claim on which relief could be granted.
21. Where subject-matter jurisdiction exists, but the administrative pleadings are insufficient to demonstrate an actionable claim, an opportunity must be provided to a claimant to file an amended pleading and to correct the deficiency. 312 IAC 3-1-10, Trial Rule 12(B)(6), and Indiana Office of Environmental Adjudication v. Kunz, 714 N.E.2d 1190 (Ind. App. 1999) as cited in Ogden Dunes v. Army Corps & DNR, 12 Caddnar 137, 141 (2009).
22. As provided in 312 IAC 3-1-10, unless inconsistent with AOPA or 312 IAC 3-1, the Commission may apply the Indiana Rules of Trial Procedure. Neither IC 4-21.5 nor 312 IAC 3-1 consider directly the failure to state a claim upon which relief can be granted, but the concept is addressed in Trial Rule 12. “When a motion to dismiss is sustained for failure to state a claim under subdivision (B)(6) of this rule the pleading may be amended once as a matter of right pursuant to Rule 15(A) within ten days after service of notice of the court’s order sustaining the motion. . . .”
23. The administrative law judge found in an “Order of Proposed Dismissal for Failure to State a Claim upon which Relief Can be Granted and Cancellation of Initial Prehearing Conference” that the filings by the Egenlaufs were sufficient under Kunz to establish Commission subject-matter jurisdiction, but they were insufficient to demonstrate an actionable claim. Applying TR 12 in the context of AOPA and 312 IAC 3-1, a proposed order of dismissal was entered, and the Egenlaufs were provided until August 30, 2010 to amend so as to state an actionable claim. The administrative law judge stated the dismissal would apply to the Board of Commissioners and to all other parties. If an amended complaint were not filed in a timely fashion, or if the amended filing did not state an actionable claim, a final order of dismissal would be entered.
24. The Egenlaufs have not filed an amended complaint. No other party has filed a pleading or document since August 17, 2010.