CADDNAR

[CITE: Paris v. DNR, 12 CADDNAR 323 (2011)]

 

 

[VOLUME 12, PAGE 323]

 

Cause#: 10-189W

Caption: Paris v. DNR

Administrative Law Judge: Lucas

Attorneys: Ostojic (Paris); Wyndham and Boyko (DNR)

Date: June 23, 2011

 

 

FINAL ORDER OF DISMISSAL

 

Based on the foregoing Findings, a final order of dismissal is entered pursuant to 312 IAC 3-1-9(d).  A person who wishes to seek judicial review of the final disposition 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

 

1. On November 8, 2010, Douglas R. Paris and Joyce A. Paris (the “Claimants”) filed correspondence in which they requested the Department of Natural Resources (the “DNR”) cease administration of Heron Lake in Kosciusko County as a “public freshwater lake”.  The correspondence initiated a proceeding under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 IAC 3-1 to assist with implementation of AOPA. The correspondence is the “Claimants’ petition”.  The Claimants and the DNR are collectively the “parties”.

 

2. The term “public freshwater lake” is defined at IC 14-26-2-3 and 312 IAC 11-2-17.  The DNR administers public freshwater lakes at IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”).  Bowyer v. Indiana Dept. of Natural Resources, 892 N.E.2d 754 (Ind. App. 2008).  The Commission adopted rules at 312 IAC 11 to assist the DNR with administration of the Lakes Preservation Act.  The Commission is also the “ultimate authority” for proceedings under AOPA pertaining to the Lakes Preservation Act.  IC 14-10-2-3 and Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).

 

3. The Commission caused the appointment of an administrative law judge to consider the Claimants’ petition.  On November 15, 2010, the administrative law judge sent the parties a “Notice of Prehearing Conference” with a copy of the Claimants’ petition attached.

 

4. On November 17, 2010, the “Joint Appearance of Counsel for Respondent Department of Natural Resources” was filed.

 

5. A prehearing conference was conducted as scheduled on December 22, 2010 during which both parties were present through their attorneys.  As agreed by the parties, the administrative law judge scheduled a telephone status conference for February 17, 2011.

 

6. The Commission has jurisdiction over the subject matter and over the persons of the parties.

 

7. On January 12, 2011, the “Notice of Respondent Department of Natural Resources Intent to Remove Heron Lake from Natural Resources Commission’s List of Public Freshwater Lakes and Motion to Dismiss Claimant’s Request for Administrative Review” was filed.  The filing included a request that “Heron Lake be officially removed from the list of public freshwater Lakes in Information Bulletin #61 when the Natural Resources Commission meets in May, 2011.”

 

8. On January 13, 2011, the administrative law judge entered an “Order for Continuance of Telephone Status Conference” by which the telephone status conference previously scheduled for February 17, 2011 was continued indefinitely.  In addition, the parties were informed the Commission was scheduled to meet on May 17, 2011.  “Attendance at the Commission is open to the public, and parties would be welcome to attend, but attendance is not a required stage of this proceeding under IC 4-21.5-3-18(d).”

 

9. In 2008, the Indiana General Assembly enacted legislation to authorize the Commission to adopt and maintain, as a nonrule policy document under IC 4-22-7-7(a)(5)(A), a listing of public freshwater lakes. P.L.6-2008, SECTION 11, codified at IC 14-26-2-24. The listing shall include the name of the lake, the county, and specific location within the county where the lake is located.  IC 14-26-2-24(a)(1) and IC 14-26-2-24(a)(2). “A person may obtain administrative review from the [C]ommission for the listing or nonlisting of a lake as a public freshwater lake through a licensure action, status determination, or enforcement action under IC 4-21.5.”  IC 14-26-2-24(b).

 

10. Nonrule policy documents are governed by IC 4-22-7-7.  They may be used in governing an agency’s external affairs but do not have the effect of law.

 

11. The Commission implemented IC 14-26-2-24 through the endorsement of an information bulletin posted by the Legislative Services Agency.  In effect when the Claimants’ petition was filed was Information Bulletin #61 (First Amendment), 20101006-IR-312100620NRA, which was posted in the Indiana Register on October 6, 2010.  Included in the listing of public freshwater lakes for Kosciusko County was “Heron Lake, located in township 33 N, 2 mi, S of N. Webster.”

 

12. Listing Heron Lake in Information Bulletin #61 (First Amendment) could be used in governing the DNR’s external affairs but did not have the effect of law.  Similarly, delisting Heron Lake could be used in governing the DNR’s external affairs but would not have the effect of law.

 

13. The Commission met as scheduled on May 17, 2011 at Angola, Indiana.  Included was Agenda Item 13: “Consideration of approval of amendments to the Public Freshwater Lake Listing (Information Bulletin #61); Administrative Cause No. 11-060A”.  In written materials supporting Agenda Item 13, the DNR’s Division of Fish and Wildlife stated: “The Natural Resources Commission’s Division of Hearings received a request to remove Heron Lake in Kosciusko County from the Public Freshwater Lake Listing. After additional research by DNR staff…, the DNR is requesting that Heron Lake be removed from the list since it does not meet the qualifications of acquiescence for a public freshwater lake in IC 14-26-2-1.1.”

 

[VOLUME 12, PAGE 324]

 

14. During the May 17 meeting, the Commission approved delisting of Heron Lake and directed its Division of Hearings to request the Legislative Services Agency (“LSA”) to post Information Bulletin #61 (Second Amendment) in which several changes would be made from Information Bulletin #61 (First Amendment), including delisting of Heron Lake in Kosciusko County.  On May 19, 2011, the Division of Hearings requested LSA to make these changes.[1]

 

15. On June 1, 2011, the LSA posted Information Bulletin #61 (Second Amendment) at 20110601-IR-312110313NRA.  Public freshwater lakes in Kosciusko County were listed as the following:

 

• Allen Lake, located in township 34 N, 41.360785 longitude, -85.674792 latitude

• Backwater Lake (connected to Lake Webster), 1 mi. E of North Webster, 41.31312 latitude, -85.66310 longitude

• Banning Lake, located in township 33 N, 2 1/2 mi. SW of North Webster

• Barrel-and-a-half Lake, located in township 34 N, on Tri-County Fish and Wildlife Area near Syracuse

• Beaver Dam Lake, located in township 30 N, 4 mi. NW of Silver Lake

• Big Barbee Lake, located in township 33 N, 2 1/2 mi. S of North Webster

• Big Chapman Lake, located in township 33 N, 2 mi. S of Oswego

• Black Pond, 3 1/2 mi. NE of North Webster, 41.349463 latitude, -85.654778 longitude

• Boner Lake, located in township 34 N, 2 mi. E of Syracuse

• Bufflehead Pond, 2 1/2 mi. E of North Webster, 41.331419 latitude, -85.650787 longitude

• Caldwell Lake, located in township 31 N, 4 mi. N of Silver Lake

• Carr Lake, located in township 31 N, 5 mi. S of Warsaw

• Center Lake, off of North Buffalo Street in Warsaw, 41.246497 latitude, -85.857557 longitude

• Crystal Lake, located in township 32 N, 5 mi. N of Burket

• Dewart Lake, located in township 34 N, 3 mi. N of Oswego

• Diamond Lake, located in township 31 N, 3 mi. NW of Silver Lake

• Durham Lake, located in township 33 N, 5 mi. SE of North Webster

• Fish Lake, located in township 31 N, 3 1/2 mi. NE of Claypool

• Hammond Lake, located in township 34 N, on Tri-County Fish and Wildlife Area near Syracuse

• Goose Lake, 41.190117 latitude, -85.880841 longitude

• Hill Lake, located in township 31 N, 2 1/2 mi. N of Silver Lake

• Hoffman Lake, located in township 33 N, 1 1/2 mi. NW of Atwood

• Irish Lake, located in township 33 N, 3 1/2 mi. SW of North Webster

• James Lake, located in township 33 N, 1 1/2 mi. W of North Webster

• Kuhn Lake, located in township 33 N, 3 mi. SW of North Webster

• Lake Wawasee, located in township 34 N, at Syracuse

• Little Barbee Lake, located in township 33 N, 4 mi. SW of North Webster

• Little Chapman Lake, located in township 32 N, 8 mi. NE of Lakeside Park

• Little Pike Lake, located in township 32 N, 1 mi. N of Warsaw

• Long Lake, located in township 33 N, 1 1/2 mi. N-NE of North Webster

• Loon Lake, locate in township 30 N, 2.5 mi. E of Beaver Dam

• McClures Lake, located in township 30 N, 3 1/2 mi. W of Silver Lake

• Morehead Lake, located in township 33 N, 41.346939 latitude, -85.714832 longitude

• Muskellunge Lake, located in township 31 N, 4 1/2 mi. S of Warsaw

• North Little Lake, located in township 30 N, 1 mi. N of Silver Lake

• Oswego Lake, located in township 33 N, at Oswego

• Palestine Lake, located in township 31 N, at Palestine

• Pierceton Lake, located in township 32 N, 2 mi. N of Pierceton

• Pike Lake, located in township 32 N, at Warsaw

• Price Lake, located in township 33 N, 41.347380 latitude, -85.677666 longitude

• Reed Lake, located in township 31 N, 41.172259 latitude, -85.729471 longitude

• Ridinger Lake, located in township 32 N, 4 mi. S of Warsaw

• Robinson Lake, located in township 32 N, 4 mi. NW of Larwill, also in Whitley County

• Rothenberger Lake, located in township 34 N, part of Flatbelly Lake

• Sawmill Lake, located in township 33 N, 2 1/2 mi. SW of N. Webster

• Sechrist Lake, located in township 33 N, 2 1/2 mi. SW of N. Webster

• Sellers Lake, 41.152465 latitude, -85.745154 longitude

• Sheely Lake, 41.193680 latitude, -85.770207 longitude

• Sherburn Lake, 41.159643 latitude, -85.745221 longitude

• Shock Lake, on Tri-County Fish and Wildlife Area near Syracuse; 41.353446 latitude, -85.690925 longitude

• Shoe Lake, 41.307843 latitude, -85.749094 longitude

• Silver Lake, located in township 30 N, 1 mi. N of Silver Lake

• Spear Lake, located in township 34 N, 4 mi. N of Highbanks

• Stafford Lake, 41.170340 latitude, -85.778559 longitude

• Stanton Lake, 41.321955 latitude, -85.769864 longitude

• Stevens Lake, 41.176217 latitude, -85.746210 longitude

• Syracuse Lake, located in township 34 N, 2.5 mi. W of Wawasee

• Tennant Lake, 41.147152 latitude, -85.731769 longitude

• Tippecanoe Lake, 41.327180 latitude, -85.762759 longitude

• Waubee Lake (also known as Wabee Lake), located in township 34 N, S edge of Shady Banks

• Webster Lake, located in township 33 N, E edge of North Webster

• Winona Lake, located in township 31 N, 1.5 mi. E of Warsaw

• Wyland Lake, on Tri-County Fish and Wildlife Area near Syracuse

• Yellow Creek, 41.104644 latitude, -85.953391 longitude

 

Heron Lake had been delisted.

 

16. On two previous occasions, persons have successfully petitioned the Commission to delist (or clarify the identity of) lakes formerly listed as public freshwater lakes.  Following delisting and posting in the Indiana Register to reflect delisting (or clarification), the proceedings were dismissed.  Waikel v. DNR, 12 Caddnar 270 (2010) and Gaerte v. DNR, 12 Caddnar 271 (2010).

 

17. Following delisting and posting in the Indiana Register to reflect delisting of Heron Lake, this proceeding may be dismissed.

 

18. On May 26, 2011, a “Notice of Proposed Dismissal” was sent to the parties.  They were informed that a Final Order of Dismissal would be entered consistently with the substance of the “Notice of Proposed Dismissal” unless a party filed a motion by June 20, 2011 requesting a proposed final order of dismissal not be entered and stating grounds relied upon for the request.  Neither party has filed a motion.  A final order of dismissal should be entered.