CADDNAR

 

 

Bontrager v. DNR, 16 CADDNAR 7

 

Administrative Cause Number:      18-123W

Administrative Law Judge:             Dawn Wilson

Petitioner Counsel:                           pro se

Respondent Counsel:                        Rebecca McClain

Date:                                                   October 12, 2021

 

 

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

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

 

 

Final Order

The denial of the application for Permit PL-23615 issued by the Department is affirmed

 

 

Statement of the Proceeding and Jurisdiction:

 

1.             On December 6, 2018, Lavern Bontrager (“Bontrager”), self-represented, filed correspondence (the “Petition”) with the Natural Resources Commission (the “Commission”). Bontrager sought administrative review of the denial of a permit by the Department of Natural Resources (“Department”).

2.             Bontrager sought after-the-fact approval from the Department for construction fill on a channel and the addition of landward berms at Fish Lake, in Elkhart County. The permit application was identified by the Department’s Division of Water as PL-23615 (the “Permit”).

3.             The Department denied PL-23615 and issued a Notice of Right to Administrative Review of the Department’s determination. The Notice of Right to Administrative Review states: “If an appeal is filed, the final agency determination will be made by the Natural Resources Commission following a legal proceeding conducted before an Administrative Law Judge. The Department of Natural Resources will be represented by legal counsel.” Petition and Exhibit 1.

4.              The Petition avers that the Department’s decision to deny the Permit was in error on the following basis: “The lake is so high in water it floods my property really bad. …this is why I was wanting to close part of the channel so I can built (sic) a wall to keep water out in the lake.” Petition.

5.             The filing of Bontrager’s Petition initiated a proceeding governed by IC 4-21.5-3, commonly referred to as the Administrative Orders and Procedures Act (“AOPA”) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.

6.             Administrative Law Judge (“ALJ”) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding and to consider the Petition as a request for administrative review under AOPA and 312 IAC 3-1.

7.             On December 12, 2018, Elizabeth Gamboa and Ihor Boyko filed a joint appearance on behalf of the Department. On March 25, 2020, on behalf of the Department, Rebecca McClain filed a Notice of Substitution of Counsel.

8.             Following the issuance of notice to Bontrager and the Department, ALJ Wilson set a Prehearing Conference to be heard on January 3, 2019. The ALJ granted a request by Bontrager to continue the event and a rescheduled Prehearing Conference was heard on February 8, 2019.

9.             The Notice of Prehearing Conference was also served upon the service list of potentially interested persons, providing each with the opportunity to request continued participation in a courtesy distribution. Only the Army Corp of Engineers notified the Commission of its desire to remain on a courtesy distribution.  

10.         Status conferences were held in the proceeding on May 30, 2019, July 17, 2019,      August 27, 2019[1], October 10, 2019, January 30, 2020, April 2, 2020, June 9, 2020, December 29, 2020, March 30, 2021, and June 15, 2021.

11.         On April 2, 2020, an administrative hearing was set to be heard on June 18, 2020. The hearing was subsequently vacated upon a request of the Department. The hearing was reset for January 14, 2021, and was vacated upon a joint request by the parties. The hearing was again rescheduled for June 24, 2021, and conducted on that date at the Indiana Government Center’s Conference Center, Conference Room B, in Indianapolis, Indiana.  

12.         A hearing of the facts was conducted on June 24, 2021. Bontrager appeared in person, self-represented. The Department appeared by counsel, Rebecca McClain and by Jim Hebenstreit, Assistant Director of the Department’s Division of Water. The following persons attended and observed, Suzanne Delay, Scott Dean, Nicholas Males, Ira Kauffman and Sam Walker.

13.         Following the administrative hearing, the Parties were allowed the opportunity to submit written closing arguments or briefs on or before July 23, 2021. On July 23, 2021, Bontrager filed a single paragraph email with the subject line, “Flooding Property and Mosquito issue !”. On July 27, 2021, the Department, by counsel, late filed a “Motion for Extension of Time” and “Respondent’s Post Hearing Brief”. On July 29, 2021, the ALJ issued an “Order Setting Deadline to Object to Respondent’s Motion for Extension of Time” which set a deadline of August 10, 2021, to file any appropriate objection to the Department’s motion. Bontrager filed an email on July 30, 2021, stating, in full, “I say objection to the Department’s Motion for Extension of Time”.  On August 11, 2021, the ALJ granted the Department’s motion.

14.         Under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and related rules at 312 IAC 11, the Department is the permitting authority to grant, condition or deny a license under IC 14-26. 312 IAC 11-1-2.

15.         The Department’s Division of Water coordinates the Department’s permitting functions for the Lakes Preservation Act and 312 IAC 11.

16.         The Commission is the “ultimate authority” for proceedings under AOPA for Department permitting decisions under the Lake Preservation Act. IC 4-21.5-1-15 and IC 14-10-2-3.

17.         As the “ultimate authority”, a proceeding before the Commission, conducted before an ALJ, is de novo. IC 4-21.5-3-14(d).

18.         The Commission has jurisdiction over the subject matter and over the persons of the parties under IC 4-21.5 and rules adopted under 312 IAC 3-1 to assist with the implementation of IC 4-21.5.

 

Findings of Fact[2]

19.         Bontrager had flooding at his home and mosquito issues so he thought it would be best if he could “fill-up” the channel to keep the water away from the house. Bontrager.

20.         Bontrager called the Department and spoke with an unidentified person who informed Bontrager that a permit might not be necessary. Id.

21.         Bontrager did not contact a surveyor before undertaking construction efforts. Id.

22.         Bontrager applied to the Department for an after-the-fact permit for construction at Fish Lake, as follows[3]:

            Approximately ___150_ft of the _250ft.____channel (will be/is) realigned and straightened to _100ft.____. The new channel (will be/is) approximately 100 ___ft long. It (will be /is) _2_ft deep, with an _25_ft bottom width and _:_ sideslopes. A sediment trap (will be/was) constructed at the downstream end of the new channel. The tap (will be/is) __ft deep, ___ft long and as wide as the new channel bottom. The channel (will be/was) excavated “in the dry” and (will not be/was not) connected to the existing channel until the excavation (has been/was) stabilized. Material excavated from the construction of the new channel (will be/was) stockpiled for later use as fill for the old channel. Additional fill material (will be/was) brought onsite from an outside source.  Additionally, approximately 150_____ft of existing channel immediately upstream of the realigned section (will be/was) cleared of brush and debris. An access channel (will be/has been) excavated along the (north/south/east/west) (left/right) bank of the river to provide __. The channel (will be/is) approximately ___100_ ft long, __25__ ft wide and (will be/was) excavated to a depth of ___ft below the existing grade. It (will be/has) _:_ side slopes which )will be/were) stabilized with ____. Fill removed from the excavation (will be/was) hauled to a disposal site located (outside of/within) the floodway where it (will be/was) graded and seeded. The construction (will require/required) the excavation of __166__yds of material. Maintenance dredging (will be/was) performed on an as needed basis. During construction an earthen plug (will separate/separated) the river from the channel.  Once the excavation (has been/was) completed and stabilized, the plug (will be/was) removed and the channel flooded.

Exhibit 1.

 

23.         Within the Department’s denial notice of Bontrager’s after-the-fact permit application, a summary of the proposed project states:

An existing 125' long by 30' wide by 2' deep channel will be filled. Additionally, berms will be constructed landward of the shoreline. A potion (sic) of the project has already been completed. Details of the project are contained in information received electronically at the Division of Water on September 24, 2018 and in plans and information received at the Division of Water on

Id.

24.         James Hebenstreit, PE (“Hebenstreit”) is the Assistant Director of the Department’s Division of Water. Hebenstreit oversees several sections of the Division of Water, including the section that considers permit applications proposing activities on public freshwater lakes. Hebenstreit reviews and signs the Department’s approval or denial of applications that propose construction efforts at or lakeward of shorelines for public freshwater lakes. Hebenstreit.

25.         On November 19, 2018, Hebenstreit, on behalf of the Department’s Division of Water, denied Bontrager’s application, designated as “PL-23615”, submitted to the Department by Bontrager, based on the following:

(1) failure to provide a complete application and the information necessary to adequately review the project as requested at the time of your electronic application submittal….

(2) the placement of fill denies the public use of a portion of the lake and would constitute a violation of IC 14-26-2-5(e) which states, “A person owning land 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.”

(3) failure to provide evidence that public notice has been provided in accordance with the provisions of the Procedures Concerning Certain Licenses Act, IC 14-11-4, and administrative rule 312 IAC 2-3.

(4) failure to prove the project will not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.

Petition and Exhibit 1. 

26.         In reviewing construction applications, the Division of Water considers that the waters of Indiana’s public freshwater lakes are made available for use by any citizen of the state. A public freshwater lake would encompass any portion of the lake that is within the legal shoreline, as determined by the courts. A channel would be considered a part of the shoreline. In this case, the proposed project area included a man-made channel that was previously dedicated to the public. The Department concluded that any encroachment of the lake would deprive the public of a portion of the lake. Hebenstreit and Exhibit 1.

27.         In reviewing applications, the Division of Water considers information provided by the applicant. For Bontrager’s permit application, information concerning the notice statutorily required to be provided by the applicant to designated persons was not provided to the Department. For this reason, the Department also determined that the application failed to offer necessary information by failing to show the required notice was provided by Bontrager. For Hebenstreit, the failure of Bontrager to provide the required notice formed the denial on both the basis that Bontrager provided an incomplete application and that he failed to provide the required notice. Hebenstreit.

28.         The proposed project’s effects on fish, wildlife or botanical resources would typically be evaluated by the Department’s Division of Fish and Wildlife. In Hebenstreit’s experience, he has found that, generally, any fill would destroy or remove portions of the lake that would include habitat for fish and wildlife. Id.

29.         Within the Department’s Application Tracking Report, on page 8, a comment appears dated November 8, 2018, entered by Justin Eshelman, Environmental Manager, from Nathan Thomas, Lakes Permitting Biologist for the Department’s Division of Fish and Wildlife.

Matt and I discussed this briefly. Because F&W was not routed the file, it makes sense to keep the Fish and Wildlife comments on the denial brief. Matt mentioned the language below is commonly used when files were not routed to fish and wildlife prior to DOW denial:

failure to prove the project will not result in unreasonably detrimental effects on fish, wildlife, or botanical resources.

Is this adequate?

Exhibit 1.

 

Conclusions of Law

Burden of Proof and Standard of Review

30.         “At each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….”  IC 4-21.5-3-14(c).

31.         A person seeking the benefit of a license has the burden of proof for entitlement to the license. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991). A person seeking a permit under the Lake Preservation Act has the burden to prove entitlement to the permit.  Burke’s Vinyl Seawalls & Reynolds v. DNR, 11 CADDNAR 345, 347 (2008).

32.         As the applicant for a permit under the Lakes Preservation Act (the “Act”), Bontrager has the burden of proof in this proceeding.

33.         The standard of review under AOPA is generally “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Burke’s Vinyl Seawalls, supra, at 347. “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994). 

34.         Bontrager has the burden of proof to demonstrate to the Commission by a preponderance of the evidence that the Department’s denial is in error in that he is entitled to the Permit.

35.         A “pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014).

Department Permitting at a Channel on Fish Lake

36.         Fish Lake, in Elkhart County, is a “public freshwater lake” as defined at IC 14-26-2-3 and 312 IAC 11-2-17 and is listed as such in the “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Seventh Amendment), Indiana Register, http://iac.iga.in.gov/iac//20170531-IR-312170269NRA.xml.pdf, (May 31, 2017).

37.         Whether a permitted area is a part of a well-defined channel or not, the area is part of the lake. In a riparian rights dispute on a channel the Commission determined that the shoreline of a public freshwater lake is “any point in which the lake’s water creates a mark on the land.”  The Act even governs construction along an island, to change an island to a peninsula, and within the shoreline whether or not a person performing construction seeks a permit from the Department.  Bowyer v. Department of Natural Resources, 944 N.E.2d 972, 989 (Ind. App. 2011), cited in Allen v. LaSalle and DNR, 13 CADDNAR 236, 242 (2014).

38.         A “channel to a public freshwater lake is part of the lake if the channel’s shoreline is included within the uninterrupted close that includes the main body of the lake and the channel.” Id.

39.         The Act prohibits certain activities without a permit, as follows:

(a) Unless a person obtains a permit from the department under this section and conducts the activities according to the terms of the permit, a person may not conduct the following activities:

(1) Over, along, or lakeward of the shoreline or water line of a public freshwater lake:

(A) excavate;

(B) place fill; or

(C) place, modify, or repair a temporary or permanent structure.

(2) Construct a wall whose lowest point would be:

(A) below the elevation of the shoreline or water line; and

(B) within ten (10) feet landward of the shoreline or water line, as measured perpendicularly from the shoreline or water line;

of a public freshwater lake.

(3) Change the water level, area, or depth of a public freshwater lake or the location of the shoreline or water line.

 

IC 14-26-2-23(a).

40.         An application for a project contemplated by IC 14-26-2-23(a) must provide the Department with a project plan that provides “sufficient information concerning the proposed excavation, fill, temporary structure, or permanent structure.” IC 14-26-2-23(b)(2).

41.         The Department is authorized to grant, condition, or deny a license for an activity under IC 14-26. As authorized by IC 14-26-2-23(e), to implement the Act, the Commission adopted rules to assist in the administration of the Act. 312 IAC 11-1-2. See also 312 IAC 11-3-3.

42.         The Department denied Bontrager’s permit application on four separate bases. Each basis for the Department’s denial is separately considered below.    

Permit Denial-Public Use

43.         The Department’s permit denial states that the proposed project “denies public use of a portion of the lake and would constitute a violation of IC 14-26-2-5(e) which states ‘A person owning land 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.’” Exhibit 1.

44.         The public of Indiana has a right to use of the public freshwater lakes for recreational purposes. IC 14-26-2-5(b). The Department, on behalf of the State of Indiana, holds and controls public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes. IC 14-26-2-5(d).

45.         The permit’s denial notice accurately reflects the public’s right to the use a public freshwater lake and the nonexclusive rights of a person owning land that borders a public freshwater lake. IC 14-26-2-5(e).

46.         The Act authorizes the Department to issue a permit after investigating the merits of an application. The Department may consider any factor, including cumulative effects of the proposed activity upon public rights. IC 14-26-2-23(c)

47.         The Department investigated the merits of the application for the construction activity proposed by Bontrager.

48.         The evidence presented supports the Department’s determination that the proposed activity would deny the public use of a portion of the lake. Evidence submitted during the administrative hearing did not support an alternative conclusion.

49.          Bontrager failed to meet his burden of proof, by a preponderance of the evidence, to set aside the Permit denial issued by the Department on this basis.

Permit denial- Public Notice

50.         The Department’s permit denial states that the application presented by Bontrager failed to show public notice was provided by Bontrager in accordance with the provisions of the Procedures Concerning Certain Licenses Act, IC 14-11-4, and administrative rule 312 IAC 2-3.

51.         An applicant must complete the following notice: “(a) If a license application affects real property, notice of the application is required as follows: (1) The applicant must notify at least one (1) of the owners of each parcel of real property reasonably known to be adjacent to the affected real property….” IC 14-11-4-5(a).

52.         As an applicant, Bontrager was required to provide notice to landowners of property adjacent to the subject property. The notice is required after the application is filed with the Department and the notice must reference the application and include an explanation of the options available to the person served. IC 14-11-4-4 and IC 14-11-4-7.

53.         Insufficient evidence appears in the record to show that Bontrager met his obligation to provide the required notice.

54.         Bontrager failed to meet his burden of proof, by a preponderance of the evidence, to set aside the Permit denial issued by the Department on this basis.

Permit Denial- Incomplete application and necessary information for project review

55.         The Department’s permit denial states that the application presented by Bontrager failed to “provide a complete application and the information necessary to adequately review the project…” Exhibit 1.  

56.         The Department asserted that Bontrager’s failure to submit necessary information concerning one or more required notices to the Department also resulted in the Department’s denial on this basis.

57.         Bontrager provided insufficient evidence to show that he met his obligation to provide required public notice.

58.         Bontrager failed to meet his burden of proof by a preponderance of the evidence to set aside the Permit denial issued by the Department on the basis that he provided the Department a complete application and necessary information to adequately review the project.  

Permit denial-Effects upon fish, wildlife, or botanical resources.

59.         The Department’s permit denial states that Bontrager’s application failed to prove the proposed project would not result in unreasonably detrimental and cumulative effects upon fish, wildlife and botanical resources.   

60.         The Department may consider the cumulative effects of the proposed construction activity upon fish, wildlife, or botanical resources when investigating the merits of an application. IC 14-26-2-23(c).

61.         Hebenstreit testified that, generally, any fill would destroy habitat. However, for this specific proposed project, no evidence reveals that an investigation was conducted by the Department regarding the effects of this proposed construction project upon fish, wildlife or botanical resources.

62.         There is a void of evidence to show the Department considered if the proposed project would result in unreasonably detrimental and cumulative effects on fish, wildlife or botanical resources.

63.         The Department’s Permit denial on this basis is not supported by the evidence. This basis for denial of the Permit is reversed.

Permit Denial: Summary

64.         To set aside the permit denial by the Department, Bontrager would be required to show each basis upon which the Department issued its denial is unsupported by the Act. Three of the four bases upon which the Department relied in issuing its permit denial are supported by the evidence.

65.         Bontrager failed to meet his burden of proof, by a preponderance of the evidence, to set aside the Permit denial issued by the Department. 

66.         Bontrager is disqualified under 312 IAC 11-3 from receiving a permit to fill a portion of a channel and to construct berms landward of the Fish Lake shoreline.

                                                                                                           

[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 has been relocated to the beginning of this document.]

 

 

                                                                       

                       


[1] On August 27, 2019, Bontrager failed to appear at the Status Conference and the ALJ issued a proposed dismissal. Following the ALJ’s extension of the deadline to respond to the proposed dismissal, Bontrager responded by email and the proposed dismissal was set aside by the ALJ.  

[2] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.

[3] Without correction or amendment.