CADDNAR

[CITE: Allen v. LaSalle Application of 312 IAC 11-3-2, 13 CADDNAR 191 (2013)]

 

[VOLUME 13, PAGE 191]

 

Cause #: 12-176W

Caption: Allen v. LaSalle Application of 312 IAC 11-3-2

Administrative Law Judge: Lucas

Attorneys: Snyder (Allen); Grossnickle (LaSalle); Wyndham (DNR)

Date: August 8, 2013

 

 

FINAL ORDER TO LaSALLE IN ACCORDANCE WITH 312 IAC 11-3-2 TO REMOVE PORTIONS OF PIER

 

The proceeding was initiated on September 28, 2012 when Thomas R. Allen and Debbie Allen (the “Allens”) filed their “Petition for Administrative Review” which sought relief with respect to the placement by Holly A. LaSalle (“LaSalle”) of a temporary pier in a channel and the open waters of Tippecanoe Lake in Kosciusko County.  Tippecanoe Lake is a “public freshwater lake” that is subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and 312 IAC 11, rules adopted by the Natural Resources Commission (the “Commission”) to assist with its implementation of the Lakes Preservation Act.  Plymate v. Paton and DNR, 13 Caddnar 28 (2012); Pier 343 and Muncie YMCA v. DNR, 12 Caddnar 312 (2011); and “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 4.

 

The Lakes Preservation Act places full power over public freshwater lakes in the State of Indiana.  The State holds public freshwater lakes in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes.  The Department of Natural Resources (the “DNR”) is the agency responsible for administering the trust.  Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001).

 

The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act, including those derived from competing interests among persons claiming riparian rights or interests in riparian rights that may be sufficient for the placement of piers and similar structures in public freshwater lakes.  IC 14-10-2-4 and IC 14-26-2-23.  Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).

 

The Lakes Preservation Act is derived from legislation originating in 1947.  Significant statutory amendments were made in 2000, including the addition of IC 14-26-2-23.  The amendments clarified the Commission is responsible for adopting rules to help implement a licensure program that includes temporary piers.  The Commission was also charged with resolving disputes between “the interests of landowners having property rights abutting public freshwater lakes or rights of access to public freshwater lakes.”  The Commission is to address “competing riparian interests”.  IC 14-26-2-23(e) and IC 14-26-2-23(f).

 

An administrative law judge was appointed under IC 14-10-2-2 to conduct this proceeding.  The administrative law judge scheduled the initial prehearing conference for October 19, 2012 and informed the Allens and LaSalle.  LaSalle moved to reschedule the initial prehearing conference due to her attorney’s scheduling conflict.  The request was granted, the conference was rescheduled for November 2, and the conference was held as rescheduled. 

 

During the November 2 conference, LaSalle reported her pier was removed from Tippecanoe Lake with the close of the boating season.  The Allens and LaSalle discussed matters pertaining to a site survey or surveys and agreed to participate in a telephone status conference on December 14 to determine how to most effectively move forward.

 

On December 14, 2012, the telephone status conference was conducted as scheduled.  DNR was added as a party.  The Allens, LaSalle, and the DNR are collectively the “parties”.  The parties agreed a hearing of the facts should be set for March 27, 2013 in Columbia City.  They subsequently exchanged witness lists and exhibit lists and entered stipulations.

 

On March 25, the administrative law judge continued the March 27 hearing due to inclement weather and poor road conditions.  A telephone status conference was held on March 27, and the parties agreed to participate in a rescheduled hearing of the merits on May 22, 2013.

 

On May 6, LaSalle moved to continue the May 22 hearing due to the absence of an essential witness.  Neither the Allens nor the DNR objected, and the hearing was ordered continued on May 9.  On May 9, the administrative law judge also scheduled a telephone status conference for June 10, the primary purpose of which was to reschedule a hearing of the facts.

 

On May 28, 2013, the Allens filed their “Motion for Order Requiring Removal of Pier”.  On May 31, LaSalle filed the “Respondent’s Response to Claimants’ Motion for Order Requiring Removal of Pier”. 

 

The June 10, 2013, telephone status conference was conducted as scheduled.  During the conference, the parties agreed to reschedule the hearing of the facts for August 7.

 

During the June 10 telephone status conference, the parties also discussed Allens’ “Motion for Order Requiring Removal of Pier” and the “Respondent’s Response to Claimants’ Motion for Order Requiring Removal of Pier”.  As part of the discussion, the parties reviewed 312 IAC 11-3-2 which provides in pertinent parts:

 

     Sec. 2. (a) A person may seek administrative review of the placement or maintenance of a structure under… [312 IAC 11-3-1].

     (b) Administrative review under this section is subject to IC 4-21.5 and 312 IAC 3-1. If a dispute involves the placement of a pier, another temporary structure, or a glacial stone reface, where the review of another structure authorized by a general license appears appropriate to a full and fair determination of the dispute, the administrative law judge may order additional parties joined.

     (c)…..

     (d) Unless otherwise ordered by the administrative law judge or agreed in writing by all the parties, any structure placed by a party under section 1 of this rule must be removed from along or lakeward of the shoreline or water line upon the later of the following:

(1) Ninety (90) days after filing of the request for administrative review.

(2) January 1 of the year following the filing of the request for administrative review.

     (e) In exercising discretion under subsection (d), an administrative law judge shall consider whether the structure poses a substantial intrusion or merely a de minimis intrusion to the interests protected by IC 14-26-2, IC 14-15-7-3, and this rule.

 

[VOLUME 13, PAGE 192]

 

LaSalle’s pier originates within a channel of Lake Tippecanoe and was removed then relocated beyond the time limits set forth in subdivision (d)(1) and subdivision (d)(2).  During the June 10 prehearing conference, the parties agreed 312 IAC 11-3-2 requires the pier to be removed unless otherwise ordered by the administrative law judge or agreed by the parties.  There was no agreement by the parties.  As provided in subsection (e), “In exercising discretion under subsection (d), an administrative law judge shall consider whether the structure poses a substantial intrusion or merely a de minimus intrusion to the interests protected by IC 14-26-2, IC 14-15-7-3 and” 312 IAC 11-3.

 

During the telephone status conference, the administrative law judge agreed to perform a site view before ruling.  The parties indicated a site view was acceptable and agreed the site view should take place on June 24 at 1:00 p.m.  Due to a previously scheduled vacation, DNR’s attorney was unable to attend but said he did not object to the site view occurring in his absence.  He also said he did not object to a Conservation Officer attending in his absence. 

 

During the prehearing conference, the administrative law judge asked that the DNR:

 

(1) file and serve a brief, informal report concerning the impacts of the pier, if any, particularly with respect to navigation and boating safety;

(2) cause a Conservation Officer to appear for the site view on June 24; or

(3) both (1) and (2).

 

DNR’s attorney responded he would confer with his client concerning the request and make every reasonable effort to comply.

 

LaSalle’s attorney asked if there were objections to him filing an affidavit with photographs to the effect that bass boats were able to access the channel.  The attorneys for the other parties responded they had no objections.  LaSalle’s attorney filed the “Affidavit of Holly LaSalle” on June 21 with photographs attached.

 

The site view was performed as scheduled on June 24.

 

On June 25, the administrative law judge entered an “Interlocutory Order to LaSalle to Remove Portions of Pier”.  The parties and counsel were forthcoming and courteous.  As requested, the DNR’s Division of Law Enforcement appeared and offered perspectives concerning the consequences of LaSalle’s pier upon boating safety and navigation, as well as to the riparian rights of the Allens.  At the invitation of the administrative law judge, the attorneys for the parties present also provided insights.  The administrative law judge expressed his appreciation for the patience and dignity of the parties and the professionalism of the attorneys and the Conservation Officers during the site view.

 

In the Interlocutory Order, the administrative law judge found the Allens and LaSalle share a common riparian boundary near the mouth of a channel of Lake Tippecanoe.  LaSalle also is a riparian owner of land on the opposite site of the channel.  Each of these three parcels carries riparian rights.  The LaSalle pier effectively bridges its two riparian zones.  Although LaSalle has a right to enjoy riparian rights from both of her parcels, the administrative law judge found this right did not include bridging her riparian areas with a pier. 

 

In the Interlocutory Order, the administrative law judge found that as configured, the LaSalle pier may have an adverse impact upon the Allens’ exercise of riparian rights.  At current water levels on Lake Tippecanoe, the LaSalle pier also appeared to impede navigation.  If water levels were to recede to the legal elevation of Lake Tippecanoe, the pier may eliminate navigation into the channel for all but kayaks, canoes, and other small boats.  The impediment caused by the pier is seemingly within the statutory idle speed zone that is located along a lake shoreline and may not impose a significant safety hazard. 

 

In the Interlocutory Order, the administrative law judge found the intrusion caused by the LaSalle pier was, more likely than not, substantial to exercise of riparian rights by the Allens and might be substantial to the enjoyment of navigation on the public water of Lake Tippecanoe.  In any event, the administrative law judge could not find the intrusion of the LaSalle pier in its current configuration was no more than de minimus under 312 IAC 11-3-2(e).

 

LaSalle was then ordered by July 19, 2013 to remove the pier and attachments to the pier except the portion of the pier that is within 50 feet of the shoreline.  LaSalle was ordered to refrain from mooring a boat on the south side of the remaining portion of her pier.  With notice to the Allens, LaSalle was given leave to seek authorization from the DNR for a temporary permit, effective for the remainder of 2013, to place a pier extending from her parcel that is located west of the channel.  This leave was made on the contingency the latter pier, any platform, and any boats moored to the pier must not interfere with reasonable ingress and egress by boat to the property of the Allens.

 

On July 9, 2013, LaSalle filed a “Motion to Correct Error; and Motion to Reconsider and/or Clarify Order”.  The motion contended the administrative law judge erred by making the determinations in the Interlocutory Order “without benefit of a full hearing where evidence, testimony, and history can be presented.” 

 

Oral argument on the motion was set for July 15, 2013 by telephone.  The attorneys for the Allens and for LaSalle participated.  A telephone call was also made to DNR’s attorney, but he was unavailable.  A message was left on his voicemail indicating he could join oral argument in progress.

 

During the oral argument, LaSalle reiterated the positions stated in her “Motion to Correct Error; and Motion to Reconsider and/or Clarify Order”.  In general terms, she (1) sought to defer a disposition until after the hearing of the facts set for August 7, 2012; or, if the disposition is not set aside, to (2) remove the prohibition on the placement of a boat on the south side of the remaining pier; and (3) allow LaSalle to retain the sockets for the pier auger poles in place pending a final disposition of the facts.  These three matters are considered separately as set forth below. 

 

In addition, LaSalle observed the Commission lacks annotations to help explain the implementation of 312 IAC 11-3-2.  The administrative law judge agreed.  Although 312 IAC 11-3-2 has been implemented previously, the mode and terms of implementation were not subjected to the potential for objections and the consideration of those objections to the AOPA Committee under 312 IAC 3-1-12.  The Interlocutory Order should be made a Nonfinal Order of the administrative law judge that is ripe for filing objections and tender to the AOPA Committee for final agency disposition as to the application of 312 IAC 11-3-2.  For this rule section, the matter is believed to be one of first impression for the AOPA Committee.

 

[VOLUME 13, PAGE 193]

 

(1) LaSalle’s Request for Deferral of a Disposition a Hearing of the Facts

 

LaSalle urged during the oral argument, and the administrative law judge concurs, that a site view is no substitute for a hearing of the facts.  In issuing the Interlocutory Order, focus was upon a temporary disposition in light of 312 IAC 11-3-1 and 312 IAC 11-3-2.

 

A temporary pier may be located in a public freshwater lake based upon an individual license issued from the DNR, a general license through 312 IAC 11-3-1, or a lawful nonconforming use under 312 IAC 11-5-2.  Any pier is unlawful that is not supported by an individual license, a general license, or a lawful nonconforming use. Mueller-Brown v. Caracci, 13 Caddnar 156 (2013). 

 

LaSalle does not assert she has an individual license from the DNR and does not assert her temporary pier is qualified as a lawful nonconforming use.  To be lawful, her temporary pier must qualify through a general license.

 

By authorizing the placement of temporary piers through general licensure at 312 IAC 11-3-1, the Commission relieves the public from excessive regulation and the DNR from burdens occasioned by analyses needed to evaluate individual licensure.  But access to a general license also means the rigors of DNR scrutiny, including the potential for comment and participation by affected persons, is not provided immediately.  312 IAC 11-3-1 conditions its availability on several factors, including that a pier does not infringe on the access of an adjacent landowner or unduly restrict navigation.  312 IAC 11-3-1(b)(2) and 312 IAC 11-3-1(b)(3).  Action on the authority does not require prior DNR review or approval.[1]  A person that believes a temporary pier would qualify at 312 IAC 11-3-1 (or that is unaware of the application of the Lakes Preservation Act and 312 IAC 11) may act unilaterally with pier placement.  As long as the pier conforms to the conditions provided by 312 IAC 11-3-1, whether conformance is a function of wisdom or good luck, the pier is lawful.

 

312 IAC 11-3-2 recognizes placement of a structure through general licensure at 312 IAC 11-3-1 can be mistaken.  An adjacent landowner or another affected person may come forward to contend, as the Allens have, that a pier infringes their riparian rights or unduly restricts navigation.  312 IAC 11-3-2 does not require immediate removal of the structure placed through licensure at 312 IAC 11-3-1.  Instead, a grace period is provided.  The period 90 days after a person requests administrative review or January 1 of the following year, whichever comes later.  For many riparian disputes, this period is sufficient to achieve a disposition.  When the dispute is not resolved following the grace period, the parties are disqualified by 312 IAC 11-3-2 from using the general licensure opportunity of 312 IAC 11-3-1.  A party must seek an individual license from the DNR or must defend successfully on administrative review (or subsequently on judicial review or appeal) qualification for general licensure at 312 IAC 11-3-1.

 

312 IAC 11-3-2(e) also provides discretion to an administrative law judge for temporary relief from its general tenet that the placement of a pier, through a general license at 312 IAC 11-3-1, is disqualified following termination of the grace period.  During oral argument, the Allens reflected they refrained from placing a pier, and LaSalle should have refrained similarly or sought permission from the administrative law judge before replacing her pier in 2013.  The administrative law judge concurs, and if a request were made, LaSalle could have avoided the costs she is now loath to incur to remove the pier.  An opportunity for evaluation might have been provided that is more sophisticated than a site view and less prone to error by the administrative law judge.  LaSalle might have sought a stay of effectiveness of 312 IAC 11-3-2 under IC 4-21.5-3.  She did not.

 

If the administrative law judge were to now conclude an evidentiary hearing is needed before LaSalle is required to remove her pier, 312 IAC 11-3-2 would be rendered a nullity.  Another result would be a process that rewards aggressive conduct by a party to a pier dispute and that punishes the party which exercises restraint.  Although not common to all riparian disputes, with the scheduling of a hearing of the facts on August 7, another result here would be to foreclose relief to the Allens until the end of the boating season.  A nonfinal order is unlikely to be issued by the administrative law judge until after Labor Day.  With the effective period of 18 days to file objections and tender those objections to the AOPA Committee under 312 IAC 3-1-12, a final agency decision is unlikely before November.  LaSalle’s request to defer the effective date of the Interlocutory Order is denied.

 

(2) LaSalle’s Request to Remove the Prohibition on the Placement of a Boat South of Her Pier

 

The Allens and LaSalle do not agree whether mooring a boat on the south side of LaSalle’s pier would infringe significantly on the Allens’ riparian zone.  Based upon the arguments of the parties, and an informal site view, the administrative law judge cannot find the intrusion is likely to be de minimus.  A hearing of the facts may well result in a different conclusion.  But the record today does not offer a sufficient basis to provide relief under 312 IAC 11-3-2(e). 

 

(3) LaSalle’s Request to Retain the sockets for the pier auger poles in Place Pending a Final Disposition

 

LaSalle requested to retain sockets for auger poles in place until a final disposition is made of the facts.  She expressed willingness to provide markers to identify locations of the sockets in support of public safety.  The Allens indicated they did not object to the request with this condition.  LaSalle’s request is granted on the condition she confer with the other parties, and approval would be obtained from the DNR’s Division of Law Enforcement for any buoys or other markers the DNR needed to address public safety.

 

ORDER

 

By July 19, 2013, LaSalle must remove the pier and attachments to the pier except for the portion of the pier that is within 50 feet of the shoreline or water line of Tippecanoe Lake.  Excluded from removal are sockets for auger poles, if those sockets are marked and approved by the DNR to address public safety.  LaSalle must not moor a boat on the south side of the remaining pier.  With notice to the Allens, LaSalle may seek DNR authorization for a temporary license, effective for the remainder of 2013, to place a pier extending from her parcel that is located west of the channel.  The latter pier, any platform, and any boats moored to the pier must not interfere with reasonable ingress and egress by boat to the property of the Allens.  This Order is temporary, and its terms would be superseded by or merged into a written agency action following a hearing of the facts.