CADDNAR
Thalls et al. v. Draving et al. (19-045W), 16 CADDNAR 23
Administrative Cause Number: 19-045W
Administrative Law Judge: Aaron Bonar
Petitioner Counsel: Stephen R. Snyder
Respondent Counsel: Robert W. Eherenman
Date: October 16, 2023
[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.]
FINAL ORDER
1. Respondent may not moor watercraft or maintain boatlifts that infringes upon Petitioners’ riparian areas as determined by a riparian survey. The pier may only be as wide as the determined riparian area.
2. There must be at least three (3) feet of clear buffer space between Respondent’s pier and Thalls’ pier, as well as between any future pier placed by Conrad and Respondent’s pier, to ensure the safety of the users of the respective piers. This space must be clear of watercraft and boatlifts. Petitioners are ordered to move their piers to comply with this order.
3. At no time may any watercraft intending to make use of Respondent’s pier cross into or otherwise infringe on Petitioners’ riparian zone beyond infringement caused by the temporary entry to and exit from Respondent’s riparian zone. Respondent is responsible for adjusting its pier, if necessary, to comply with this order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural Background and Jurisdiction
1. On April 12, 2019, M. Thalls Revocable Trust (Thalls) and Robert L. Conrad (Conrad) (collectively hereinafter Petitioners) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) alleging that the Leonard R. Draving and Elizabeth A. Draving Joint Revocable Living Trust (hereinafter Respondent) placed a pier on a public way that infringed on Petitioners’ riparian rights. See Petition.
2. Petitioners seek a determination of the parties’ respective riparian rights. Id.
3. By filing their Petition, Petitioners initiated a proceeding governed by Indiana Code 4-21.5-3, sometimes 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. See IC 4-21.5-3-1, et seq.
4. Administrative Law Judge (ALJ) Sandra Jensen was appointed under IC 14-10-2-2 to conduct this proceeding and was assigned this case on or around April 18, 2019.
5. A telephonic prehearing conference was set for May 15, 2019 and continued to May 30, 2019. At the telephonic conference on May 30, 2019, the parties informed ALJ Jensen that Respondent had filed a quiet title action to gain possession of the public way in Kosciusko County Superior Court.[1] ALJ Jensen stayed this case pending the outcome of the quiet title action.
6. On June 8, 2021, ALJ Jensen issued an Order for Parties to File Status Report as ALJ Jensen understood that the quiet title action had been concluded in May 2021. The parties filed a joint status report on June 16, 2021 stating that the Kosciusko Superior Court had ruled in favor of Respondent, but that Petitioners had appealed the decision to the Indiana Court of Appeals. The parties advised that they would request a status conference upon the conclusion of the appeals process.
7. On September 27, 2021, ALJ Jensen issued a notice advising the parties that she was retiring from the ALJ position. The same notice appointed ALJ Dawn Wilson to this case.
8. On December 13, 2021, ALJ Wilson issued a notice advising the parties that she was retiring from the ALJ position. This case was assigned to ALJ Elizabeth Gamboa on March 9, 2022, who set a telephonic status conference for March 30, 2022 upon a motion from Petitioners dated February 24, 2022.
9. At the March 30, 2022 status conference, the parties advised that the Indiana Court of Appeals had affirmed the order of the Kosciusko Superior Court granting quiet title of the alleged public way to Respondent.[2] Petitioners stated that the issue of Respondent’s pier interfering with Petitioners’ riparian rights was still ripe for a hearing.
10. Respondent stated that they would raise a counter-claim of interference against Petitioners, and that Petitioner Robert Conrad was deceased. Petitioners were given until May 2, 2022 to file an amended complaint with the Division of Hearings and Respondent was given until June 1, 2022 to file any counter-claim.
11. Petitioners filed their amended complaint on May 24, 2022, but the pleading was incomplete. ALJ Gamboa gave Petitioners until June 10, 2022 to file a completed complaint and gave Respondent until July 5, 2022 to file a response to the complaint. The amended complaint was filed on May 26, 2022 and Respondent filed its counter-claim on July 5, 2022.
12. By notice dated July 7, 2022, ALJ Gamboa set a telephonic status conference for August 2, 2022. Petitioners filed their Answer to Respondent’s Counter-Claim on August 1, 2022.
13. At the August 2, 2022 status conference, ALJ Gamboa informed the parties that this case was being reassigned to ALJ Aaron Bonar. The parties agreed to set a hearing in this matter for November 1, 2022. After Respondent submitted a request for continuance on October 28, 2022, the hearing was continued and ALJ Bonar set a status conference for December 7, 2022.
14. During the status conference on December 7, 2022, the parties agreed to a hearing date of February 8, 2023. The ALJ noted shortly afterward that the date would not work for the Division of Hearings due to staffing issues. The parties agreed on December 20, 2022 to set a hearing date of April 25, 2023.
15. On February 23, 2023, Respondent submitted a Motion to Substitute Real Party in Interest as Lake City Bank had been designated as the successor trustee for the Leonard R. Draving and Elizabeth A. Draving Joint Revocable Living Trust. The Motion was granted on February 24, 2023.
16. The administrative hearing took place on April 25, 2023. At the hearing, Petitioners Todd Thalls and Tim Conrad, Counsel for Petitioners Stephen Snyder, Respondent Lake City Bank, and Counsel for Respondent Robert Eherenman all appeared in person at the Commission Hearing Room at the Indiana Government Center in Indianapolis, Indiana.
17. The following witnesses provided testimony at the administrative hearing: Todd Thalls (Thalls), Tim Conrad (Conrad), and Michael Draving (Draving).
18. The parties stipulated to all exhibits. Petitioners’ Exhibits A-Z and Respondent’s Exhibits 1-13 were all admitted into the record without objection.
19. The parties were given until June 30, 2023 to file post-hearing briefs. Both parties filed post-hearing briefs on June 30, 2023.
Findings of Fact
20. Thalls owns real property described as Lot 20 in Waw-Wil-A-Way Park, commonly identified as 815 Chapman Lake Drive, Warsaw, IN 46582. The property has 40 feet of shoreline abutting Big Chapman Lake. Thalls purchased the property in 2018. See testimony of Thalls and Exhibits A, H, and I.
22. Respondent owns real property described as Lots 19B and 20B in Waw-Wil-A-Way Park, commonly identified as 818 Chapman Lake Drive, Warsaw, IN 46582. The property is not lakefront property. Respondent has owned the property since 1959. See testimony of Draving, Exhibit 2, and Exhibits J and W.
23. Resulting from court proceedings in 2021, Respondent also owns in fee simple a six (6) foot wide walkway (walkway) extending from Chapman Lake Drive to Big Chapman Lake. “[Respondent’s] family has continuously used the 6’ walkway between Original plat lots 19 and 20 as their exclusive access to the lake since 1959.” See Exhibit 1, paragraph 18. The walkway has six (6) feet of shorefront abutting Big Chapman Lake. See generally Exhibits 1 and 11. See illustration below, with modifications for clarity, taken from Exhibit I.
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24. From 2002 to 2022, Respondent maintained a pier extending from the walkway into Big Chapman Lake. Petitioners do not dispute the right of Respondent to place a pier into Big Chapman Lake from the walkway. See testimony of Thalls, Conrad, and totality of the record.
25. However, Thalls testified that Respondent maintains a boatlift on the pier and allows visitors to moor watercraft on the pier, which Thalls believes regularly encroaches into his riparian zone. See testimony of Draving and Thalls, Exhibit 6, and Exhibits C and G.
26. Respondent conceded that it could not moor boats at its pier permanently given the narrowness of Respondent’s riparian area. See testimony of Thalls and Draving.
27. Historically, prior owners of Thalls’ property maintained a pier near the center of the property. The prior location of Thall’s pier and Respondent’s pier granted about 25 feet of clear, navigable space between the two piers. See testimony of Thalls and Draving, Exhibit E, and Exhibits 6 and 8
28. After purchasing the property, Thalls moved the pier southward, closer to Respondent’s walkway’s riparian boundary, and installed a boatlift on the south side of his pier. This resulted in the two piers being very close together, which Thalls maintains interferes with his ability to use the south side of his pier. See testimony of Thalls; Exhibits 5 and 6; and Exhibits C, E, F, and G.
29. Conrad has not maintained a pier on his property for nearly 20 years, but is a part of this action because, if he were to place a pier into Big Chapman Lake in the future, he wants the ability to place a pier in the location of his choosing within his 40 feet of shoreline without interference from Respondent’s pier. See testimony of Conrad.
30. Petitioners argue that the use of Respondent’s pier should be limited for accessing Big Chapman Lake within Respondent’s riparian zone. In other words, Respondent’s use of the pier should be limited and not include the right to moor boats or place boatlifts, for example, on Respondent’s pier as such a use would interfere with Petitioners’ use of their riparian zones. Petitioners see no need to establish a safe navigational zone if Respondent is not allowed to moor boats at its pier. See testimony of Thalls and Conrad.
31. Respondent argues that Thalls’ pier encroaches on its riparian zone and requests that a safe navigational zone be established, and that Petitioners be required to extend their piers in such a manner to create a safe navigational zone in relation to Respondent’s pier. See testimony of Draving.
Conclusions of Law
32. Big Chapman Lake is a Public Freshwater Lake located in Kosciusko County, Indiana. Information Bulletin # 61 Listing of Public Freshwater Lakes (Eighth Amendment), DIN 2021020-IR-312210447NRA.
33. IC 14-26-2-5, also known as the Lake Preservation Act, provides that the State “has full power and control of all the public freshwater lakes in Indiana … [and] hold and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” See IC 14-26-2-5(d)(1-2).
34. The Commission has jurisdiction over public freshwater lakes and has the power to make administrative rules to implement relevant sections of the Indiana Code. See IC 14-10-2, 14-15-7-3, 14-26-2-23, and 4-22-2.
35. A “riparian owner” is “the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.
36. In general, the owner of property that abuts a lake possesses certain rights associated with ownership of that property. Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. Ct. App. 2010). Those rights include “1) the right of access to navigable water; (2) the right to build a pier out to the line of navigability; (3) the right to accretions; and (4) the right to a reasonable use of the water for general purposes . . ..” Parkison v. McKue, 831 N.E2d 118, 128 (Ind. Ct. App. 2005).
37. It is not disputed that the parties all own real estate abutting Big Chapman Lake and are therefore riparian owners. It is also not disputed that each party may be permitted to extend a qualifying temporary structure lakeward of the shoreline of the lake under the provisions of 312 IAC 11-3-1(b).
38. Information Bulletin #56 (IB56) outlines the various methods in which riparian boundaries along a public freshwater lake may be determined and drawn. It also provides guidance on how to create safe navigational zones between piers on a public freshwater lake. See Information Bulletin 56, Riparian Zones within Public Freshwater Lakes and Navigable Rivers (Third Amendment), DIN 20220209-IR-312220025NRA.
39. The Commission is required to consider the guidance provided in IB56 when asked to determine parties’ riparian boundaries. 312 IAC 11-1-4. IB56 does not have the effect of law; however, it is widely followed to provide guidance for determining riparian boundaries. See England v. Ball & Arend, 15 CADDNAR 77, 79 (2019).
40. The ALJ finds it difficult to determine exactly how riparian zones would be drawn for each of the parties. Insufficient evidence was presented, for example, regarding the navigability of different areas of the lake given its odd shape. Additionally, the parties did not ask the ALJ to determine the parties’ respective riparian boundaries, only a determination regarding the riparian rights granted to Respondent. The parties may need to conduct riparian rights surveys to determine the exact boundaries of their respective riparian zones.
41. However, regardless of how the parties’ respective riparian rights are determined, the narrow walkway would create an equally narrow riparian area. The ALJ reasonably infers from the evidence that, regardless of how any riparian areas are drawn, it would be nearly impossible for Respondent to maintain boatlifts and/or moor watercraft in such a way as to not infringe on Thalls’ or Conrad’s riparian zones.
- Regarding the establishment of safe navigational zones, IB56 states that “[t]o assist with safe navigation, as well as to preserve the public trust and the rights of neighboring riparian owners, there ideally should be 10 feet of clearance on both sides (for a total of 20 feet) of the dividing line between riparian zones. At a minimum, a total of 10 feet is typically required that is clear of piers and moored boats, although the area may be used for loading and unloading boats and for active recreation.” See IB56, page 2.
- While Respondent is not entitled to moor or dock watercraft at its pier, the safety of any person using either Thalls’ or Respondent’s pier is a priority. Establishing a clear buffer space between the piers in question is a mechanism to ensure general safety among the users of the piers.
- As Respondent’s walkway is only six feet wide, requiring Respondent to maintain a minimum of ten (10) of clear space on both sides of the walkway is impossible.
- The Commission has faced similar dilemmas in previous cases. See N.G. Hatton Trust v. Young & Pfeiffer, 14 CADDNAR 176 (2017); Xanders v. Nixon Trust, 14 CADDNAR 33 (2015); Lawson v. Halliwill, 13 CADDNAR 146 (2013).
- In Hatton Trust v. Young & Pfeiffer, the Youngs’ property had a total of 61 feet of shoreline and Pfeiffer’s property had a total of 80.7 feet of shoreline. Hatton Trust’s 12.5 feet of shoreline, granted by an easement, rested between the Young and Pfieffer properties. See Hatton Trust v. Young & Pfeiffer at 179.
- The Commission found that “that the Youngs and Pfeiffer bear a larger burden associated with the maintenance of buffer zones between their piers and moored watercraft and the pier and moored watercraft maintained by the Trust.” Id.
- The Commission ordered that the Youngs and Pfeiffer must maintain at least three (3) feet of buffer space between their respective riparian zones and the Trust’s zone, and that the Trust may not moor watercraft in such a way that the watercraft would infringe on the Youngs’ riparian zone. Id.
49. The ALJ finds no reason to deviate substantially from the Commission’s analysis and reasoning in Hatton Trust v. Young & Pfeiffer regarding how the Commission determined the dimensions of a safe navigational or buffer zone between the respective riparian areas.
50. Accordingly, the ALJ orders that at least three (3) feet of clear, safe navigational space must be maintained between Petitioners’ piers and Respondent’s pier, including any future pier placed by Conrad. This space must be clear of any boatlifts, watercraft, and other obstacles.
51. The burden of creating and maintaining this space falls on Petitioners. Petitioners must move their piers as necessary to comply with this order and create the required three (3) feet of buffer space between Respondent’s pier and Petitioners’ current and future piers.
52. Respondent is prohibited from placing a pier into Big Chapman Lake that encroaches into Petitioners’ riparian zones. Respondent’s pier and any attachments thereto must be contained within its determined riparian area at all times.
53. At no time may any watercraft making use of Respondent’s pier cross into or otherwise infringe on Petitioners’ riparian zone beyond temporary infringement caused by the entry to and exit from the lake. Respondent is responsible for adjusting its pier to comply with this order.