CADDNAR


[CITE: Gaerte v. DNR & Neal, 13 CADDNAR 203 (2013)]

 

[VOLUME 13, PAGE 203]

 

 

Cause #: 12-178W

Caption: Gaerte v. DNR & Neal

Administrative Law Judge: Lucas

Attorneys: Helm (Gaerte); Wyndham (DNR); pro se (Neal)

Date: November 26, 2013

 

                                                                                   

FINAL ORDER  

 

Issuance as conditioned by the Department of Natural Resources of a license for a group pier within Chapman Lake, upon application PL-22040 and pursuant to Ind. Code § 14-26-2 and 312 Ind. Admin. Code § 11, is affirmed with the following modifications and clarifications:

 

(1) The group pier may remain in place, as positioned on August 16, 2013, until December 1, 2013.

 

(2) For any replacement of the group pier after January 1, 2014, the entirety of the structure must be located, as nearly as practicable, to the center of the six-foot wide easement in the manner depicted on the drawing in Finding 20.

 

(3) The group pier must not exceed 108 feet long from the shoreline and into Chapman Lake.

 

(4) By January 1, 2014, Craig Neal must reimburse Larry Gaerte in the amount of $450 for survey expenses incurred in association with this proceeding.  Failure to make full payment by January 1, 2014 is a violation of the group pier license and invalidates the license.  In addition to the payment constituting a license term, the amount of $450 is an administrative judgment, in favor of Larry Gaerte and against Craig Neal, which may be collected by Gaerte as would any civil judgment and without the participation of the Department of Natural Resources.

 

 

Findings of Fact and Conclusions of Law

 

Statement of the Proceeding and Jurisdiction

 

1. On May 14, 2012, Craig Neal (“Neal”) submitted an application to the Department of Natural Resources (the “DNR”), Division of Water, to place a group pier under Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”), and under rules adopted by the Natural Resources Commission (the “Commission”) at 312 Ind. Admin. Code § 11 to assist with implementation of the Lakes Preservation Act.  The group pier would be placed along a portion of Big Chapman Lake in Kosciusko County, Indiana.  More particularly as described in the application, the group pier was authorized at the end of an easement between 1001 Chapman Lake Drive and 991 Chapman Lake Drive, Warsaw.  In addition to serving Neal, the pier would provide dock space for his wife, Rhonda Neal; for Richard and Janet Barrett; for Marie Mason; for Clyde and Carolyn Sexton; and for Bill and Mary Beltz.  The DNR’s Division of Water designated the application “PL-22040”.

 

2. For application PL-22040, Neal included a sketch to depict the group pier.  With inclusion of a receipt stamp by the Division of Water, the sketch provided:

 

 

3. Big Chapman 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.  Neal v. Gaerte, 13 Caddnar 44 (2012)[1] and “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 3. 

 

4. “Group pier” is defined in 312 Ind. Admin. Code § 11-2-11.5.  The phrase includes at 312 Ind. Admin. Code § 11-2-11.5(1) a pier that has docking space for at least five separate property owners.  A group pier is disqualified from a general license and requires individual licensure pursuant to 312 Ind. Admin. Code § 11-4-8.

 

5. The Lake Preservation Act gives the State of Indiana “full power and control of all of the public freshwater lakes in Indiana.”  Ind. Code § 14-26-2-5(d)(1). The State “holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.”  Ind. Code § 14-26-2-5(d)(2).  The owner of property bordering a public freshwater lake “does not have the exclusive right to the use of the waters of the lake or any part of the lake.”  Ind. Code § 14-26-2-5(e).  Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d 1068, 1075 (Ind. App. 2012).

 

6. The DNR and the Commission are responsible for implementing the statutory process of issuing licenses for group piers on public freshwater lakes. In adopting rules and issuing licenses, the DNR is charged with considering a variety of factors, including the public rights listed in Ind. Code § 14-26-2-5 and the interests of landowners who own property abutting the lake. Ind. Code § 14-26-2-23(c) and (e)(2).  Kranz v. Meyers Subdivision at 878.

 

[VOLUME 13, PAGE 204]

 

7. On September 20, 2013, the DNR’s Division of Water issued a license to Neal for a group pier (the “group pier license”) based on application PL-22040. Among persons given notice of the group pier was Larry Gaerte (“Gaerte”), an adjoining property owner.

 

8. Through his attorney, Gaerte filed timely on September 27, 2013 a petition for administrative review of issuance of the group pier license (the “petition”).  The petition contended a drawing Neal submitted with the application was “factually deficient”: 

 

The distances shown from adjacent piers are simply not accurate.  In particular, the distance from the Gaerte pier where it abuts the seawall to the group pier where it abuts the seawall is 21 feet 4½ inches rather than the 23 feet depicted in the drawing.  The other figures in the drawing are also inaccurate as there is actually more distance between the Gaerte pier to the one side and the Hall pier to the other side.

 

In addition as will be found in the various pleadings and communications filed in Administrative Cause No. 11-104W[2], the Gaerte pier is a proper preexisting nonconforming pier.  The group pier will approach the Gaerte pier much more closely than the 27 feet described in the [Neal] drawing….

 

It is our position that…Neal has regularly submitted inaccurate and misleading information to the [DNR].

 

[The group pier license] should be revoked, and held in abeyance unless and until he submits accurate data and an accurate drawing to the [DNR].

 

9. The petition initiated a proceeding under Ind. Code § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 Ind. Admin. Code § 4-21.5 to assist with its implementation of AOPA.

 

10. An administrative law judge was appointed under Ind. Code § 14-10-2-2.  Notice of the initial prehearing conference was provided to Gaerte, Neal, and the DNR (collectively the “parties”).  The administrative law judge conducted the initial prehearing conference in Columbia City, Indiana as scheduled on October 19, 2012.  Gaerte appeared in person and by his attorney.  Neal was present in person.  The DNR appeared by its attorney, who upon prior approval from the administrative law judge, participated by telephone. The DNR was also present through an Assistant Director of the Division of Water.

 

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

 

Burden of Proof to Set Aside the Group Pier License

 

12. During the initial prehearing conference, Gaerte’s attorney asked that Neal be required to submit a survey showing the location of the group pier and its relationship to other pertinent structures, most notably Gaerte’s.  He described Neal as “perpetrating a fraud on the DNR” to obtain the group pier license.  Neal responded the DNR properly approved the group pier license.  He said the DNR was satisfied with his drawing, and he was unwilling to incur the additional expense of a survey.  Neal reflected frustration with a dispute that was over a “matter of inches”.  The DNR agreed a survey could provide better clarity but maintained the group pier license was issued properly.  The DNR declined to revoke the group pier license, and its attorney urged Gaerte had the burden of proof to set aside or modify the group pier license.  The administrative law judge concurred during the conference that Gaerte had the burden of proof and later memorialized the concurrence.  “Report of Initial Prehearing Conference and Notice of Telephone Status Conference” entered October 23, 2012.

 

13. At each stage of a proceeding, the person requesting an agency to take action has the burden of persuasion and the burden of going forward (sometimes collectively referred to as the “burden of proof”).  Ind. Code § 4-21.5-3-14(c) and Indiana DNR v. Krantz Bros. Const., 581 N.E.2d 935, 938 (Ind. App. 1991).  

 

14. If a neighbor seeks to set aside a license issued by the DNR, the neighbor has the burden of proof.  Markland v. Swistek d/b/a Crack of Dawn Hunt Club, 13 Caddnar 194 (2013). 

 

15. If the DNR issues a license to authorize construction on a public freshwater lake, “the burden rests with the person seeking to set aside” the license.  Wawasee Propery Owners, et al. v. Wawasee Real Estate & DNR, 11 Caddnar 88, 94 (2007); Island Prop. Owners Ass’n, Inc. v. Clemens and DNR, 12 Caddnar 56, 58 (2009) and Adochio, et al. v. Kranz, et al., 11 Caddnar 400 (2008).  

 

16. Gaerte has the burden of proof to set aside DNR’s issuance of the group pier license.

 

Application of the Walker Survey and Survey Expense Reimbursement

 

17. During the initial prehearing conference, the administrative law judge sought an agreement between Neal and Gaerte to share the expenses of a survey.  But since Gaerte has the burden of proof, to prevail in the proceeding he must obtain the survey.  The administrative law judge reflected the result would be repugnant if Neal was demonstrated to have obtained the group pier license through fraud.  If a significant pier modification was required based on the survey results, justice would require reimbursement by Neal for all or some of Gaerte’s survey expenses, even in the absence of fraud.  Under a proper showing, the group pier license would be modified, and reimbursement to Gaerte for survey expenses should be a licensure condition.  In response to a question by Neal, the administrative law judge stated if neither the DNR nor he assisted with survey expenses, Gaerte could contract with any Indiana registered land surveyor without consulting with the other parties.  The administrative law judge said he made the directive reluctantly in the absence of a satisfactory alternative from the parties and added that the directive would be altered if the parties could agree on another approach.

 

18. At his exclusive expense, Gaerte contracted with J.K. Walker and Associates, P.C. to obtain a land survey of the group pier and surroundings from an Indiana registered land surveyor, Kevin R. Michel.  Michel performed the survey which included “Fieldwork to locate piers and 2 drawings (a drawing showing the location of existing piers and a drawing showing [group] pier centered on 6-foot easement—proposed).  Strip of land lying between Lots 5 and 6 Elmhurst Park and adjacent tract to water’s edge [on] Chapman Lake[,] Kosciusko [County.]”  On May 31, 2013, J.K. Walker sent an invoice to Gaerte for the survey in the amount of $450.  “Supplemental Report of Claimant” filed on June 5, 2013, including attached Exhibit 4.

 

19. The drawing showing the location of existing piers follows:

 

 

 

 

[VOLUME 13, PAGE 205]

 

20. The drawing showing the group pier if centered on a six-foot easement follows:

 

 

 

 

21. The third telephone status conference was conducted as scheduled on August 16, 2013.  All parties were present in person or by an attorney.  Finding 22 through Finding 28 summarize statements made during the third telephone status conference.

 

22. DNR’s attorney reported the agency conducted a site view on July 23 and determined the group pier was approximately 128.9 feet long.  The group pier was more than 20 feet longer than authorized by the group pier license.[3]  DNR’s attorney stated he wrote to Neal on July 25 to advise him of the DNR conclusions and to ask that the group pier be shortened to conform to the terms of the group pier license.

 

23. Neal acknowledged receipt of the July 25 letter from DNR’s attorney.  Following receipt of the letter, Neal stated he shortened the group pier to approximately 108 feet long.

 

24. Gaerte’s attorney said his client agreed Neal shortened the group pier following receipt of DNR’s July 25 letter.  After shortening, he also agreed the group pier conformed to the length authorized by the group pier license.

 

25. Gaerte’s attorney added that, as documented by the drawing set forth in Finding 19, the group pier still deviated significantly from being centered within the six-foot wide easement.  He said Gaerte would not insist on Neal moving the group pier for the 2013 boating season, but his client wanted assurances the group pier would be centered for the 2014 boating season.

 

26. DNR’s attorney said the agency would require the group pier to be centered within the six-foot wide easement.

 

27. Neal agreed to cause the group pier to be maintained at not longer than 108 feet and to be properly centered within the easement when replaced in 2014.

 

28. The administrative law judge offered to provide language that could be included in a final disposition of the merits.  He said the language would be set forth in the “Report of Third Telephone Status Conference” and would include an opportunity for the parties to comment afterwards.  The parties accepted the offer.

 

29. Consistent with the previous Finding, the following language was offered to the parties in the “Report of Third Telephone Status Conference”:

The Craig Neal pier within Chapman Lake, as currently positioned, may remain in place until December 1, 2013 at the consent of Larry Gaerte and without violating PL-22040.  For any replacement after January 1, 2014, the entirety of the pier must be located as nearly as practicable to the center of the six-foot wide easement, must not exceed the current length, and must comply with all other conditions of PL-22040.  The parties agree not to contest that the May 24, 2013 survey by Walker & Associations depicts accurately the location of the six-foot wide easement.

 

The parties were provided until September 20, 2013 to offer modifications to the offered language.

 

30. No party offered modifications to the language set forth in Finding 29.

 

31. With formatting modifications to Finding 29, including for terms defined supra, the following language is adopted for all purposes:

The group pier within Chapman Lake, as positioned on August 16, 2013, may remain in place until December 1, 2013 at the consent of Gaerte and without violating the group pier license.  For any replacement after January 1, 2014, the entirety of the group pier must be located as nearly as practicable to the center of the six-foot wide easement, must not exceed 108 feet long, and must comply with all other conditions of the group pier license.  The parties do not contest that the drawings in Finding 19 and Finding 20 depict accurately the location of the six-foot wide easement.

 

32. In a letter dated August 30, Neal stated the survey demonstrated he was “in error”, and Neal was willing and prepared to reimburse Gaerte for all survey expenses. 

 

33. Based on the survey, a significant modification is required to the group pier.  Justice requires Neal’s reimbursement of Gaerte’s survey expenses.  The reimbursement is equitable and otherwise supported by the evidence. 

 

34. The group pier license should be conditioned on Neal providing Gaerte, by January 1, 2014, a $450 reimbursement for survey expenses.  Failure to make full timely payment would be a violation of, and should invalidate, the group pier license.

 

[VOLUME 13, PAGE 206]

 

35. The amount of $450 should also be made an administrative judgment in favor of Gaerte and against Neal that may be collected by Gaerte as would any civil judgment and without DNR participation.

 

Administrative Review of Licensure Actions under the Lakes Preservation Act

 

36. Administrative review of a DNR licensure determination under the Lakes Preservation Act is conducted de novo.  Rather than deferring to the DNR, the administrative law judge considers and applies proper weight to the evidence.  Wawasee Property Owners, et al. v. Wawasee Real Estate & DNR, 11 Caddnar 88, 94 (2007) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).  2011 amendments to AOPA codified that proceedings before an administrative law judge are conducted de novo.  P.L. 32-1011, SEC. 4 and Ind. Code § 4-21.5-3-14(d).

 

37. A de novo hearing under AOPA is designed to provide a thorough examination of the evidence and to assure affected persons with due process.  Wawasee Property Owners at 94.  AOPA provides ethical requirements for the relationships between an administrative law judge and parties, including criminal sanctions.  Ind. Code § 4-21.5-3-9, 10, 11, 12 13, 36, and 37.  Provisions address prehearing conferences (Ind. Code § 4-21.5-3-18), hearing notifications (Ind. Code § 4-21.5-3-18), intervention (Ind. Code § 4-21.5-3-21), and defaults and dismissals (Ind. Code § 4-21.5-3-24).  An administrative law judge may issue subpoenas, discovery orders, and protective orders (Ind. Code § 4-21.5-3-22).  At hearing, witnesses are placed under oath or affirmation and are subject to cross-examination.  The hearing must be recorded at the agency’s expense and a transcript provided by a reporter at the party’s expense.  (Ind. Code § 4-21.5-3-25 and 26).  Amendments made in 2011 caused AOPA summary judgment to conform to Trial Rule 56.  P.L. 32-1011, SEC. 5 and Ind. Code § 4-21.5-3-23.  Day and Schramm v. McCulloch & DNR, 13 Caddnar 184, 185 (2013)]

 

38. The Indiana Supreme Court extended the discovery provisions of the Trial Rules to administrative proceedings, including AOPA.  Trial Rule 28(f).  Miller, Trustee v. Miller, et al. 10 Caddnar 68 (2005).

 

39. Beginning in 2012, a foreign attorney seeking to practice before the Commission (formerly pro hac vice) was required to petition and be granted permission by the Supreme Court.  Rule 3 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys.

 

40. For proceedings under the Lakes Preservation Act, an administrative law judge has authority under Ind. Code § 14-11-1-3 to: “(1) administer oaths and certify to official acts; (2) require information from any person for purposes of Title 14; (3) issue subpoenas; (4) require the attendance of witnesses; and (5) examine witnesses under oath.”  The proceedings are “substantially similar to proceedings before a court.”  To the extent the outer limits of an administrative law judge’s expertise may be approached, “the risk of error is reduced by the fact that an affected party can seek review” by the Commission, by a trial court, by the Indiana Court of Appeals, and potentially by the Indiana Supreme Court.  Kranz v. Meyers Subdivision Property Owners at 1078.

 

Attorney Fees for Obdurate Behavior

 

41. There are two basic legal structures for allocating attorney fees in adjudications. As characterized by the Indiana Supreme Court in State Bd. of Tax Com'rs v. Town of St. John, 751 N.E. 2d 657, 658 (Ind. 2001), these are  “the English rule (‘loser pays’) and the American rule (‘every man for himself’). W. Kent Davis, The International View of Attorney Fees in Civil Suits: Why Is the United States the ‘Odd Man Out’ in How It Pays Its Lawyers?, 16 Ariz. J. Int’l & Comp. L. 361, 399, 403 (1999). Both schemes are grounded in statute.  Id. at 400, 404.”

 

42. Chief Justice Shepard observed the English rule is viewed by some “as more fair, arguing that a legal victory is not complete if one is out of pocket for attorney fees….  Proponents of the American rule respond:”

[S]ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents' counsel. Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration.

Id.

 

43. The Indiana General Assembly may enact legislation in which a prevailing party is awarded litigation expenses, including attorney fees.  With respect to four statutory programs, the Commission considers litigation expenses within a single rule section:  312 Ind. [Admin.] Code § 3-1-13 addresses disparate legislation which authorizes the Commission to award litigation expenses for wild animal possession, entomology and plant pathology, oil and gas production, and surface coal mining and reclamation. 

 

44. Ind. [Admin.] Code § 3-1-13 was construed and applied for coal mine reclamation in Indiana Department of Natural Resources v. Hoosier Environmental Council, Inc., 831 N.E.2d 804 (Ind. App. 2005).  An award of litigation expenses was also requested under the rule for a contested Lakes Preservation Act license in Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 Caddnar 317 (2011).  The administrative law judge deferred action on the request until completion of administrative review on the merits, and the request was later withdrawn.

 

45.  In addition to legislation, American courts have used equitable powers to carve exceptions to the American rule for allocating attorney fees.  Saint Joseph’s College v. Morrison, Inc., 158 Ind. App. 272, 279, 312 N.E.2d 865, 870.  One of these is the “obdurate behavior” exception, in which a court imposes attorney fees as punishment for bringing a frivolous action or otherwise acting in bad faith. Andrew W. Hull, Attorney’s Fees for Frivolous, Unreasonable or Groundless Litigation, 20 Ind. L.Rev. 151, 152-53 (1987).  State Bd. of Tax Com'rs at 659.

 

46. In Kikkert v. Krumm, 474 N.E.2d 503, 505 (Ind. 1985), the Indiana Supreme Court discussed the obdurate behavior exception to the American rule but determined the exception was inapplicable on the facts.  The following year, the Indiana General Assembly codified the exception at what is now Ind. Code § 34-52-1-1(b).  This subsection allows a prevailing party to recover attorney fees upon a finding the other party brought or pursued a frivolous, unreasonable or groundless claim or defense, or acted in bad faith.  State Bd. of Tax Com'rs at 659.

 

47. Ind. Code § 34-52-1-1(b) provides:

 

     (b) In any civil action, the court may award attorney’s fees as part of the cost to the prevailing party, if the court finds that either party:

(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless;

(2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or

(3) litigated the action in bad faith.

 

48. Gaerte seeks attorney fees against Neal for obdurate behavior, a remedy recognized by the Indiana Supreme Court in its equitable powers and subsequently codified by the Indiana General Assembly at Ind. Code § 34-52-1-1(b).

 

49. None of the parties have cited a reported decision that either a party can or cannot be awarded attorney fees under AOPA for obdurate behavior.[4]  Similarly, research by the administrative law judge did not locate a reported decision.  Although codified by the Indiana General Assembly, at its root the exception to the American rule for obdurate behavior is equitable.  Given the similarities between a civil action and an AOPA proceeding, equity may be violated if a court can award attorney fees for obdurate behavior, but for the same obdurate behavior an administrative law judge cannot.  Also, as reflected in Kranz v. Meyers Subdivision Property Owners for actions that may be at the outer limits of an administrative law judge’s expertise, “the risk of error is reduced by the fact that an affected party can seek review” of any award by the Commission, by a trial court, by the Indiana Court of Appeals, and potentially by the Indiana Supreme Court.  Upon proper facts, and subject to these subsequent reviews, an administrative law judge may grant a request for an award of attorney fees based upon obdurate behavior.

 

 

[VOLUME 13, PAGE 207]

 

50. On page 7 of the “Respondent Department of Natural Resources’ Memorandum of Law Regarding the Administrative Law Judge’s Authority to Grant Litigation Expenses and Attorney Fees to Claimant”, the agency cites Davidson v. Boone County, et al, 745 N.E.2d 895 (Ind. App. 2001) that provides guidelines to qualify for attorney fees under Ind. Code § 34-52-1-1(b):

These guidelines provide that a claim is “frivolous” if “it is taken primarily for the purpose of harassing or maliciously injuring a person, of if the lawyer is unable to make a good faith and rational argument on the merits of the action, or if the lawyer is unable to support the action taken by a good faith and rational argument for an extension, modification, or reversal of existing law.”  (745 N.E.2d at 899)  A claim or defense is “unreasonable” if “based on a totality of the circumstances, including the law and facts known at the time of the filing, nor reasonable attorney would consider that the claim or defense was worthy of litigation or justified.”  (745 N.E.2d at 899)  A claim or defense is “groundless” if “no facts exist which support the legal claim relied on and presented by the losing part.”  (745 N.E.2d at 899)  The Court of Appeals also ruled that “a claim is not rendered frivolous, unreasonable, or groundless simply because a party loses at trial (745 N.E.2d at 903).

 

51. Although the actions by Neal and his initial responses seem wrong-headed, there are several mitigating factors.  (1) DNR accepted his sketch, depicted in Finding 2, as a sufficient basis for the approval of the group pier license.  Even when Gaerte sought administrative review and asserted fraudulent conduct, the DNR declined to require a formal survey.  Neal received affirmation from the agency that the sketch was adequate. (2) Neal is not an attorney.  Although a lay person who chooses to act without the assistance of an attorney is generally bound by the responsibilities and principles that apply to an attorney, particularly in an administrative proceeding some latitude may be warranted.  This mitigating factor is underlined because the proceeding has not thus far experienced an extended period of litigation.  (3) When presented with the facts, in the form of a professional land survey, Neal did not persist with an impotent position.  (4) Neal agreed to reimburse Gaerte for the costs of the survey.

 

52. Obdurate behavior is conduct that is unmoved by persuasion, stubbornly resistant to moral influence, or impenitent.  Generally, Random House Webster’s College Dictionary (New York 2000).  The record of this proceeding does not support a conclusion Neal’s conduct stooped to the level of obdurate behavior.  An award of attorney fees is not supported by the facts.

 

53.  To the extent practicable, an agency is required on administrative review to “develop a full and complete record.” Roberts, d/b/a, Enterprise Oil & Associates v. DNR and Black Beauty Coal Co., 7 Caddnar 206, 208 (1999).  Although the administrative law judge concludes the facts do not support an award of attorney fees in this proceeding, the conclusion could be reversed.  In an “Affidavit of Attorneys Fees” filed on June 5, 2013, Gaerte’s attorney documented fees and expenses relating to representation that were in the amount of $2,329.65.  The other parties do not contest the documentation.  The documents are reasonable, and the claim for attorney fees is supported with respect to amount. 



[1] As provided in Ind. Code § 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent.  Caddnar is the Commission’s index of final orders.

[2] The final disposition of Administrative Cause No. 11-104W is memorialized as Neal v. Gaerte, 13 Caddnar 44 (2012).

[3] In the “Report of Third Telephone Status Conference”, the administrative law judge reported the DNR’s attorney stated the pier was ten or eleven feet longer than authorized.  DNR’s attorney clarified in an August 20 email that the pier length was, in fact, more than 20 feet longer than authorized.  The parties do not contest DNR’s clarification that the group pier was more than 20 feet longer than authorized.

[4] Gaerte cites Perkins v. Hayward, 132 Ind. 95, 31 N.E. 670 (Ind. 1892) as an example of an administrative proceeding in which attorney fees were awarded.  The administrative law judge agrees with DNR’s conclusion the decision is not one applying administrative law, at least not in any modern context.