18-093w.v15.htm

CADDNAR

[CITE: Bourdon v.DNR, 15 CADDNAR 51 (2019)]

[VOLUME 15, PAGE 51]

Cause #: 18-093W

Caption: Bourdon v. DNR

Administrative Law Judge: Jensen

Attorneys: Pro Se (Bourdon); Gamboa (DNR)

Date: March 14, 2019

[See Editor’s note at end of this document regarding change in the decision’s original format.]

Final Order

1. The Petitioners’ request to reverse Eddy Lake’s classification as a PFL is denied.

2. The Petitioners’ request to have Eddy Lake removed from the list of PFL’s required by Ind. Code § 14-26-2-24 is denied.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Procedural Background and Jurisdiction

1. On August 13, 2019, the Petitioners, Mark Bourdon and Caroline Bourdon, (the Petitioners) filed correspondence (the Petition) with the Natural Resources Commission (the Commission) seeking “the nonlisting of Eddy Lake as a public freshwater lake.” Within the Petition, Eddy Lake is identified as being located in Marshall County, Indiana at 41.186249 latitude and -86.310275 longitude. (Throughout this Order, except in quoted text, a “public freshwater lake” will be referred to as “PFL”.)

2. Administrative Law Judge Jensen was appointing to preside.

3. The Respondent, Department of Natural Resources (Department), was notified of the Petition. A Notice of Prehearing Conference was served upon both parties scheduling a Prehearing Conference that was conducted on September 19, 2018 with both parties present.

4. The issues presented by the Petition were discussed during the Prehearing Conference and the Petition was identified as a proceeding involving Indiana Code § 14-26-2-24, which expressly states:

Sec. 24. (a) Relying on recommendations of the department and the advisory council established by IC 14-9-6-1, the commission shall adopt, under IC 4-22-7-7(a)(5)(A), and maintain a nonrule policy statement that lists the public freshwater lakes in Indiana. For each public freshwater lake the statement must include the following information:

(1) The name of the lake.

(2) The county and specific location within the county where the lake is located.

(b) A person may obtain administrative review from the commission 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.

5. Pursuant to subsection (b), the Commission has the express authority to conduct administrative review under Indiana Code §§ 4-21.5 “for the …nonlisting of a lake as a public freshwater lake…”

6. A proceeding seeking the nonlisting of a PFL may be conducted as part of an enforcement action or as part of a licensure action, neither of which are at issue in this proceeding. Such a proceeding may also be conducted as a “status determination”.

7. A “determination of status” is subject to administrative review under Indiana Code § 4-21.5-3-5(a)(5).

8. The listing of Eddy Lake in the context of the Petition is best characterized as a “determination of status”, to which the Petitioners are objecting under the authority of Ind. Code § 14-26-2-24(b) and Ind. Code § 4-21.5-3-5.

9. During the Prehearing Conference the parties agreed that they would collaborate in reviewing the Department’s listing of Eddy Lake as a PFL. The parties reported during a Status Conference scheduled and conducted on November 27, 2018 that they had been unable to agree with respect to the listing.

10. The parties agreed that a decision upon written evidentiary submissions was appropriate and a schedule for filing and responding to motions for summary judgment was established.

11. The Commission possesses jurisdiction over the parties and the subject matter of this proceeding.

12. The Commission serves as the “ultimate authority” with respect to the instant proceeding. Indiana Code § 4-21.5-1-15, 312 IAC 3-1-2.

13. Administrative review is conducted de novo. Indiana Code § 4-21.5-3-14(d)

Summary Judgment Standard

14. Under AOPA, summary judgment is to be considered as summary judgment is considered under Trial Rule 56 of the Indiana Rules of Trial Procedure. Indiana Code § 4-21.5-3-23.

15. A party may move for summary judgment at any time after an Administrative Proceeding has been assigned to an ALJ. Id.

16. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Orem v. Ivy Tech State College, 711 N.E.2d 864, (Ind. App. 1999).

17. “Summary judgment is appropriate only when the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Trial Rule 56(C), Erie Indemnity Company for Subscribers at Erie Insurance Exchange v. Estate of Harris by Harris, 99 N.E.3d 625 (2018).

[Volume 15, Page 52]

18. “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014), citing Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

19. Parties’ filing of cross-motions for summary judgment does not alter the standard of review nor change the analysis. Each motion is considered on its own merit to ascertain whether the moving party is entitled to judgment as a matter of law. Erie Indemnity, supra.

Findings of Fact [1]

20. Eddy Lake is located in Marshall County, Indiana. Petition, Department Exhibit A.

21. Eddy Lake is identified as a PFL by the Commission in a nonrule policy document identified as Information Bulletin #61 (Seventh Amendment), “Listing of Public Freshwater Lakes” (IB #61), as required by Ind. Code 14-26-2-24. Department Exhibit A

22. Eddy Lake was first identified as a PFL in IB #61 on November 17, 2009.

23. Eddy Lake is a body of water essentially at rest in an earthen depression. Department Exhibit C.

24. The Petitioners purchased their property adjoining the shore of Eddy Lake in two parcels. A 60 acre parcel was purchased in 2012 and a 9.75 acre parcel was purchased in 2015. The Petitioners have taken action to prevent the general public from trespassing across their private property to access to Eddy Lake since 2012. Id.

25. The Shoreline of Eddy Lake is presently owned by four separate property owners with the Petitioners owning approximately 70% of that shoreline. Department Exhibit B.

26. In the Petitioners’ opinion, the remaining approximate 30% of the Eddy Lake shoreline not owned by them is “not suitable for access due to … location, lack of parking, geography, depth of the water and/or nature of the shoreline.” However, the Petitioners do not have the authority to control all access to Eddy Lake by members of the public.

27. Petitioners’ predecessors in title historically acquiesced to the use of Eddy Lake by the general public. Id.

28. Eddy Lake existed in aerial photography 1957. Department Exhibit D.

29. Eddy Lake is referred to in Department’s Marshall County Benchmarks dated 1946 [2]. Department Exhibit E.

30. Eddy Lake covers an area greater than 5 acres or more. Id.

31. Eddy Creek passes through Eddy Lake. Id.

32. Referring to a U.S. Bureau of Mines report that was not provided as part of their designated evidence, the Petitioners maintain that Eddy Lake was altered by marl mining and is not of natural creation.[3] Department Exhibit B

33. In order for the marl mining to have altered Eddy Lake, it is necessary that Eddy Lake’s existence pre-dated the marl mining activity.

Conclusions of Law

34. With expressed exceptions not applicable to this proceeding, Indiana Code § 14-26-2-3 defines a PFL as “a lake that has been used by the public with the acquiescence of a riparian owner.” See also 312 IAC 11-2-17.

35. For purposes of Indiana Code §§ 14-26 et seq., “lake” is defined at Indiana Code § 14-26-2-1.5 as follows:

Sec. 1.5. As used in this chapter, “lake” means a reasonably permanent body of water that:

(1) existed on March 12, 1947;

(2) is substantially at rest in a depression in the surface of the earth that is naturally created;

(3) is of natural origin or part of a watercourse, including a watercourse that has been dammed; and

(4) covers an area of at least five (5) acres within the shoreline and water line, including bays and coves.

36. The language of Ind. Code § 14-26-2-1.5 unambiguously requires a “lake” to be a body of water that meets all four of the specified criteria. Therefore, each criterion will be considered individually.

37. The Department’s evidence substantiates that Eddy Lake existed on March 12, 1947 as required by Indiana Code § 14-26-2-1.5(1).

38. The evidence establishes that the waters contained within Eddy Lake are substantially at rest in a depression in the earth.

[Volume 15, Page 53]

39. A reasonable conclusion is drawn that the earthen depression within which the waters of Eddy Lake are contained was of natural creation even though Eddy Lake may have been altered by the mining activities.

40. That Eddy Lake may have been altered by marl mining does not negate the reasonable conclusion that Eddy Lake is of natural origin and exists within a natural depression in the earth as required by Ind. Code § 14-26-2-1.5(2).

41. Eddy Lake being essentially a part of Eddy Creek is part of a watercourse as required by Ind. Code § 14-26-2-1.5(3).

42. Eddy Lake is a body of water covering over five acres as required by Ind. Code § 14-26-2-1.5(4).

43. Eddy Lake is a “lake” as defined at Ind. Code § 14-26-2-1.5.

44. In order to be considered a PFL, a “lake” must have been used by the public with the acquiescence of a riparian owner.

45. For purposes of Indiana Code §§ 14-26 et seq., “acquiescence” is defined as follows:

Sec. 1.2. As used in this chapter, “acquiescence” means consent without conditions, tacit or passive compliance, or acceptance.

Indiana Code § 14-16-2-1.2.

46. The Petitioners acknowledge that their predecessor in title did, in fact, acquiesce in the public’s use of Eddy Lake.

47. Under the particular facts of this proceeding, there are other property owners who own portions of the Eddy Lake shoreline. Regardless of the Petitioners’ belief that access through these properties presents a challenge or is inconvenient, the other property owners would be within their authority to allow or disallow the general public to utilize their private property for the purpose of accessing Eddy Lake. This fact, further supports the conclusion that the Petitioners are not in a proper position to seek the nonlisting of Eddy Lake as a PFL.

48. The creation of a list of PFLs and the inclusion of all PFL’s on that list is mandated by Indiana Code § 14-26-2-24, which states:

Sec. 24. (a) Relying on recommendations of the department and the advisory council established by IC 14-9-6-1, the commission shall adopt, under IC 4-22-7-7(a)(5)(A), and maintain a nonrule policy statement that lists the public freshwater lakes in Indiana. For each public freshwater lake the statement must include the following information:

(1) The name of the lake.

(2) The county and specific location within the county where the lake is located.

Emphasis added.

49. The Commission lacks authority to remove or omit from the list a lake that has properly been identified as a PFL.

50. Notwithstanding the fact that Eddy Lake has been properly recognized as a PFL and is required to be listed as a PFL, the Petitioners may take every action within their lawful authority to prevent a member of the public from trespassing on their private property to access Eddy Lake. In fact, IB #61 states as follows in recognition of that authority.

“The inclusion of a lake on this list does not convey access to a public freshwater lake across private property without permission.”

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, Paragraphs 51 and 52, has been relocated to the “Final Order” section at the beginning of this document.]

[1] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriately considered a Finding of Fact shall so be considered.

[2] It might have been wise for the Department to have pointed out this information specifically.

[3] This evidence is contained within the Affidavit of Caroline Bourdon, within which she identifies the source of this evidence as a 1983 U.S. Bureau of Mines report. This is not evidence within the personal knowledge of Caroline Bourdon and was the subject of a motion to strike filed by the Department. The Department’s motion to strike was denied. However, the Department’s motion to strike is viewed as a proper objection to hearsay evidence. Therefore, as specified at Indiana Code § 4-21.5-3-26, this evidence may not be the sole basis for a resulting order.