[CITE: Egenlauf & Heckman v. Peuquet, 12 CADDNAR 295 (2011)]
[VOLUME 12, PAGE 295]
Cause #: 11-035W
Caption: Egenlauf & Heckman v. Peuquet
Administrative Law Judge: Lucas
Attorneys: pro se (all parties)
Date: March 7, 2011
NOTICE OF FINAL DENIAL OF PETITION FOR ADMINISTRATIVE REVIEW
The complaint by the Claimants does not satisfy the requirements of a petition for administrative review, under IC 4-21.5-3-7(a), and is denied. 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
1. In a letter dated January 29 and filed February 4, 2011, Joe Egenlauf, Dawn Egenlauf, (Joe Egenlauf and Dawn Egenlauf are the “Egenlaufs”), Carol Heckman, Jack Manges, Polly Manges, Terry Holderman, Penny Holderman, Greg Balka, and Mary Balka (collectively the “Claimants”) filed correspondence (the “complaint”) with the Natural Resources Commission (the “Commission”), which stated in substantive parts as follows:
As residents of the Smith’s East Shore Park Subdivision, we would like to request a review of riparian rights.
According to some of the abstracts, the residents of the north half of Addison St. and the south half of Abbott St. are in possession of a dedication within our abstract which states: from the waters edge to the 10’ easement line is dedicated to all owners of the lots in Smith’s East Shore Park Subdivision. We would like to exercise our right to use the easement to access the lake between Addison St. and Abbott St.
Property owners in the Smith’s East Shore Park Subdivision would like to exercise our right to enjoy the lake as property owners have for the past 50 years. We bought our homes with the understanding we had legal rights to access our easement to the lake. We are now being denied lake access by property owners along the lake who have posted no trespassing signs. Without lake access our property values will be adversely affected.
2. For purposes of this proceeding, the complaint is considered a petition to the Commission for administrative review under IC 4-21.5-3-7 and 312 IAC 3-1.
3. The complaint did not identify what property owners the Claimants alleged were denying access and have posted no trespassing signs. The names and addresses of persons other than the Claimants were, however, set forth in an attachment to the correspondence referenced in Finding 1. These persons are Peter Peuquet, Vicky Peuquet, Mathew Hassel, Jill Hassel, Joe Toth, Carol Toth, Carl Metcalf, Amy Metcalf, and Jeffery Parenti. A reasonable inference may be that these persons were the subject of the complaint. To advance a disposition, and with the understanding clarification of the Claimant’s intent may require a modification, the persons named in this Finding were identified as the “Respondents”.
4. In an email dated June 23, 2010, the Egenlaufs previously 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. The prior proceeding was assigned Administrative Cause Number 10-114W and was reported by the Commission as Egenlauf v. Marshall County Comm’nrs, 12 Caddnar 262 (2010).
5. Lake of the Woods is a “public freshwater lake” under IC 14-26-2-3 and 312 IAC 11-2-17 and is subject to the Lakes Preservation Act. LeVeque v. Sorocco, Jr. and DNR, 12 Caddnar 187 (2009).
6. The Commission has jurisdiction over the placement of piers and similar structures within the shoreline of a public freshwater lake, but jurisdiction regarding land use management outside the shoreline is the province of local government. A county board of commissioners has jurisdiction over a roadway which terminates at the shoreline of a public freshwater lake. When a navigation channel extends from the roadway into the lake, persons cannot unreasonably impede boating through the channel. The Commission has jurisdiction over the navigation channel, but the county commissioners manage and can vacate the roadway, even though a consequence may be to negate the utility of the channel. Pipp v. Spitler, et al., 11 Caddnar 39 (2007).
7. The Pipp decision is consistent with decisions from other States. 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) cited in Egenlauf v. Marshall County Comm’nrs at 262.
8. The Marshall County Board of Commissioners has jurisdiction to manage Addison Street outside the shoreline of Lake of the Woods, including issues pertaining to dedications. The Natural Resources Commission lacks jurisdiction outside the shoreline of Lake of the Woods. “The Marshall County Commissioners administer their roads and streets. The Commission has no jurisdiction over the original dedications of public access or over the affirmations of these dedications.” Egenlauf v. Marshall County Comm’nrs at 262. The same principles apply to Abbott Street.
9. Even if landowners adjacent to a roadway impede a back lot owner from using the roadway to access a public freshwater lake, the Commission has no authority under the Lakes Preservation Act to provide relief. Commission jurisdiction does not govern land access to the shoreline of a public freshwater lake. Szpara v. Perez, 12 Caddnar 291 (2011).
[VOLUME 12, PAGE 296]
10. The Claimants contended their “legal rights to access our easement to the lake” were being denied by others, in part through the placement of no-trespassing signs. The Commission has no legal authority to address land access to a public freshwater lake. The Commission’s authority pertains to use of the lake itself. The Claimants may or may not have a legitimate grievance, but whatever the merits, they must seek relief a forum having jurisdiction. An appropriate forum may include the Board of Commissioners of Marshall County, the Marshall Circuit Court, or a Marshall Superior Court.
11. In a “Notice of Nonfinal Denial of Petition for Administrative Review”, the administrative law judge determined the Claimants had not demonstrated they were entitled to administrative review by the Commission under IC 4-21.5-3-7(a). The Commission had no jurisdiction over disputes regarding roads, streets, dedications or other land access to the shoreline of a public freshwater lake. The Claimant’s petition for administrative review (the complaint) must properly be denied.
12. The administrative law judge found the complaint did not satisfy the requirements of a petition for administrative review under IC 4-21.5-3-7(a). A preliminary hearing would be provided on the issue of whether the Claimants were qualified for administrative review under IC 4-21.5-3-7(a), if by February 28, 2011 a Claimant requested reconsideration of the denial in a writing that satisfied each of these three elements:
(1) Stated facts demonstrating that the Claimant filed a petition for review of an order described in IC 4-21.5-3-4, IC 4-21.5-3-5, or IC 4-21.5-3-6;
(2) Stated facts demonstrating that the Claimant was denied review without an evidentiary hearing; and
(3) Filed the writing with the Commission by February 28, 2011.
13. On February 28, 2011, the Claimants timely filed correspondence which reiterated their desire to obtain administrative review from the Commission. The correspondence stated the Claimants “would like to request a review of our rights to a 10’ easement including riparian rights.” The correspondence stated passage was being “denied by the presence of ‘No Trespassing’ signs and the stacks of piers obstructing passage over the 10’ easement.”
14. The February 28 correspondence suffers the same flaws as did the complaint. The essence of both is directed to the use of an easement which the Claimants contend is being wrongfully restricted. The Commission has no jurisdiction over the ten-foot easement, no jurisdiction over “No Trespassing Signs” placed along the easement, and no jurisdiction over piers stacked on the easement.