CADDNAR
Nelson v. Johnson, 16 CADDNAR 12
Administrative Cause Number: 20-027W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Non-Atty Rep: Kevin Flaherty
Respondent Counsel: Jason Kuchmay
Date: January 4, 2023
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural Background and Jurisdiction
1. On May 21, 2020, Patricia Nelson (“Nelson”) filed a Petition for Administrative Review (Petition). Nelson requested a hearing to resolve a riparian dispute in which Nelson complained Sharon Johnson’s (“Johnson”) pier and shore station encroached into Nelson’s riparian zone. Nelson further asserted that Johnson’s pier violated 312 IAC 11-3-1 because it infringes on Nelson’s access to the lake and unduly restricts navigation in Hudson Lake.
2. Jason Kuchmay entered an appearance on behalf of Nelson on May 21, 2020.
3. By filing the Petition, Nelson initiated a proceeding governed by Ind. Code § 4-21.5-3, also known as the Administrative Orders and Procedures Act (“AOPA”) and by rules of the Commission adopted to assist in the administration of AOPA found at 312 IAC 3.
4. Former Administrative Law Judge (ALJ) Dawn Wilson was appointed to preside over the matter.
5. A copy of the Petition was provided to Johnson by the Commission with a Notice of Prehearing Conference.
6. On June 10, 2020, Nelson filed Petitioner’s Motion for Removal of Pier, requesting an interlocutory order requiring Johnson to remove her pier and shore station from the water of Hudson Lake, or, alternatively, that Johnson be required to place her pier perpendicular to Johnson’s shoreline.
7. Rebecca McClain, legal counsel for the Department of Natural Resources, (“Department”) filed a Limited Appearance on June 12, 2020, to determine whether the Department should intervene in the case. The Department also sought service of filings by the parties and distribution of orders from the Commission. The Department has not sought to intervene.[1]
8. A prehearing conference was conducted on June 16, 2020. Deadlines were established by which responses and replies to Petitioner’s Motion for Removal of Pier were to be filed and a Telephonic Status Conference (TSC) was scheduled for July 14, 2020.
9. Johnson filed an Answer and Counterclaim on June 26, 2020. For her counterclaim, Johnson alleged that Nelson's pier interfered with Johnson’s full use of Johnson’s pier and encroached on Johnson’s riparian zone. Johnson further alleged Nelson extended Nelson’s shoreline by placing fill beyond the ordinary high-water mark of the lake.[2]
10. Johnson filed a Designation of Non-Attorney Representative on June 30, 2020, designating Kevin Flaherty (Flaherty) as her non-attorney representative. Flaherty’s Motion to Join Additional Respondent, (himself) filed the same day, was denied. Flaherty was recognized by the Commission as Johnson’s non-attorney representative.
11. Nelson filed Petitioner’s Answer & Affirmative Defenses to Counterclaim on July 10, 2020.
12. A TSC occurred as scheduled on July 14, 2020. Oral argument was scheduled on Petitioner’s Motion to Remove Pier for July 22, 2020.
13.
After an oral argument on Nelson’s Petition for Removal of Pier
held July 22, 2020, Johnson was ordered to maintain a “10 foot clearance from
the riparian zone boundary shared with Nelson ‘formed by a perpendicular to the
shore from the point of intersection of the onshore boundaries,’ IB #56, page,
4, as proposed by Nelson.” Nelson was ordered to “maintain a 10 foot clearance
from the riparian zone boundary shared with Johnson as the boundary would
‘divide the total navigable waterfront in proportion to the length of the
shores of each owner taken according to the general trend of the shore,’ as
proposed by Johnson.” Nelson was not required to act under the order until
Johnson provided Nelson a survey identifying the location of the riparian zone
boundary established by this method. The parties were given the option of
providing the Commission with an agreement as to the location of the piers and
moored watercraft that maintains a 15-foot clear space between the piers and
all watercraft. No agreement was filed.
14. Nelson filed a motion to enforce the order on August 21, 2020. ALJ Wilson did not issue an order on the motion, as the issue was a matter of civil enforcement pursuant to Ind. Code § 4-21.5-6.
15. A Notice of Appointment of Mediator and Stay Order was issued November 18, 2020. Mediation occurred but no agreement was reached.
16. A case management order was entered following a TSC on February 4, 2021. A hearing of the facts was scheduled for May 20, 2021, at a TSC conducted April 29, 2021. This hearing date was continued to October 21, 2021.
17. The hearing was started - but not concluded - on October 21, 2021.
18. ALJ Wilson resigned from the Commission in December, 2021. ALJ Gamboa was appointed to preside over the case in January 2022.
19. The hearing eventually resumed – and was completed - on September 7, 2022, in the hearing room of the Natural Resources Commission, Hearings Division.
20. Hudson Lake, located in LaPorte County, IN, is a public freshwater lake. Ind. Code § 14-26-2-3; Ind. Code § 14-26-2-24; Listing of Public Freshwater Lakes, Information Bulletin #61 (Seventh Amendment), June 22, 2017, DIN: 20170531-IR-312170269NRA (IB 61).
21. The Commission is the ultimate authority with respect to the subject matter of this proceeding. Ind. Code § 14-10-2-3; Ind. Code § 4-21.5-1-15; and 312 IAC 3-1-2.
22. The Commission has jurisdiction over the parties and the subject matter of this proceeding. I.C. § 14-26-2-(e)(3); 312 IAC 11-1-3.
23. Procedurally, this matter is governed by I.C. § 4-21.5-3 and 312 IAC 3.
24. The following witnesses were duly sworn and testified during the hearing: Ed Ciesielski;
John Saylor; Christian Marbach; Ryan Flaherty; Dan Flaherty (via Microsoft Teams application); and Sharron Johnson.
25. The following exhibits offered by Nelson were admitted into evidence: Exhibits A through L. Exhibits C and H were admitted over Johnson’s objection while the rest were admitted by stipulation.
26. The following exhibits offered by Johnson were admitted by stipulation: 1-0-1, 1-0-3, 1-5, 1-6; 2-2; 4-2-1; 4-2-2; 4-3-1; 4-3-2; 4-4; 4-5; 4-6; 4-7; 4-8; 4-9; 4-12; 4-13; 5-0; 5-1; 5-5; 6-3; 6-8; 6-9; 6-10; 7-3. The following exhibits were admitted over objection: Exhibits 3-4 through 3-10 (admitted as illustrative only); 4-1 (green line on photo not considered); 6-6; 7-2; 7-4 and 7-5.
27. The parties timely filed their post-trial briefs on October 7, 2022.
FINDINGS OF FACT
28. Nelson has owned Unit 2 in the plat of Hick’s Units adjacent to Hudson Lake since 2002. Testimony of Ciesielski; Exhibits K and L
29. Johnson has owned Unit 4 in the plat of Hick’s Units since 2003. Testimony of Johnson.
30. The shoreline of Hick’s Units was surveyed in 1995, but the plat was not developed until 2002. Testimony of Johnson.
31. Lots 2 and 4 approach the shoreline of Hudson Lake at obtuse/acute angles. Id.; Testimony of Saylor.
32. The plat of Hick’s Units is reproduced below, with Nelson’s Unit 2 highlighted, for the convenience of the reader. Johnson’s Unit 4 is adjacent to, and west of, Nelson’s Unit 2.
33. Nelson’s property has approximately 60 feet of shoreline. Johnson’s property has approximately 58 feet of shoreline. Testimony of Ciesielski, testimony of Saylor.
34. Although there was an attempt to form a neighborhood association at Hick’s Units, no such association was formed. Testimony of Johnson.
35. Johnson’s pier is approximately 4 feet wide with a “T” section that adds approximately 6 feet to the width of the structure. Johnson has maintained various watercrafts at the pier, including a paddle boat, jet ski, speed boat, and a pontoon boat, but not all at the same time. Johnson maintains a floating swim pad on the east side of her pier. Testimony of Johnson.
36. Johnson moved the location of her pier 8 feet east, or closer to Nelson’ property, in 2020. Testimony of Johnson.
37. The width of Nelson’s pier is not clear from the record. The evidence established Nelson has moored a pontoon boat to the pier. Testimony of Edward Ciesielski (Ciesielski).
38. Ciesielski, Nelson’s son-in-law, has regularly visited the Nelson property for the last forty years. Testimony of Ciesielski.
39. According to Ciesielski, prior to 2020, both Nelson and Johnson placed their piers parallel to each other and perpendicular to the shoreline. Photographs and satellite images taken from approximately 2005 to 2014 depict the Nelson’s pier and the Johnson’s pier extending into Hudson Lake roughly parallel to each other. Ciesielski testimony, Exhibits B1, B2, B4, B6, Exhibits C-1 through C-10.
40. In 2014, Nelson installed a new pier. One corner of the pier remains anchored to Nelson’s property. When placing the pier in the water in the spring, Nelson extends the pier into the water in a position roughly perpendicular to the shoreline. In the fall, the pier, with one corner attached, is then moved in an easterly direction, to be stored on Nelson’s shore, parallel to the lake. Testimony of Ciesielski.
41. As a result of the manner in which then Nelson pier has been installed, the Nelson pier has been placed in the same location since 2014. Testimony of Ciesielski.
42. After 2014, Nelson’s pier “started to be angled” toward Johnson’s property. Testimony of Johnson, Testimony of R. Flaherty, Testimony of D. Flaherty.
43. In June 2020, Johnson placed her pier so that it angled toward the Nelson’s pier. Extensions to Johnson’s pier extended to within a few feet of Nelson’s pier. Testimony of Ciesielski, Exhibits D-1 to D-4.
44. Johnson’s pier placement in 2020 prevented Nelson from using the west side of Nelson’s pier. Id. Due to the location of the door on Nelson’s pontoon boat, Ciesielski was required to, on at least one occasion, back the pontoon boat up to the east side of the pier so that Mrs. Nelson could disembark to the pier through the door on the boat. This resulted in the boat’s motor being in the shallow water closer to shore, causing damage to the boat. Testimony of Ciesielski.
45. John Saylor was retained by Nelson to conduct a boundary survey of Lot 2. Testimony of Ciesielski, Testimony of Saylor.
46. Saylor is a professional land surveyor licensed in Indiana, South Dakota, Tennessee, Kentucky and North Carolina. Testimony of Saylor.
47. Saylor has lived and worked around Hudson Lake for about 50 years. He has conducted several riparian surveys along various lakes located in LaPorte, Indiana, and is familiar with Information Bulletin 56, (Third Amendment, Feb. 10, 2022, DIN 20220209-IR-312220025NRA (IB 56). Testimony of Saylor.
48. Before completing the boundary survey, Saylor studied the Hick’s Units plat and verified the deeds to the properties in the plat. He observed slight variations between the plat and the deeds. Saylor also reviewed a survey he had completed of a property east of, and adjacent to, the Nelson property. Id.
49. Saylor exposed previously placed stakes on Nelson’s property and set boundary flags and additional wooden stakes along Nelson’s property line shared with Johnson. Id.
50. Upon learning of the riparian zone dispute between Nelson and Johnson, Saylor included riparian boundaries extending into Hudson Lake in his survey. Id. A portion of Saylor’s survey, introduced at the hearing as Exhibit H, is reproduced below:
51. The piers are depicted in the survey as they existed on June 5, 2020. Testimony of Saylor.
52. The house depicted on Lot 2 was “flipped” when it was added to the survey electronically by
Saylor’s assistant. The position of the house does not, however, impact the accuracy of the survey lines as drawn by Saylor. Testimony of Saylor.
53. An image of Hudson Lake, with the Nelson property marked, is reproduced below to assist in further discussion of the determination of the parties’ riparian zones:
54. The shoreline along the Nelson and Johnson properties is roughly straight. Testimony of Saylor.
55. Historically, most piers on Hudson Lake have been placed perpendicular, or radial, to the shoreline. Testimony of Saylor.
56. Because the shore approximates a straight line and the onshore boundaries of Nelson and Johnson approach the shore at obtuse angles, Saylor applied the third principle of IB 56 and determined the Nelson/Johnson riparian boundary by drawing a perpendicular from the point of intersection of the two properties. Testimony of Saylor.
57. According to Saylor, roughly the same result would be achieved if principle 4 of IB 56 is applied. Testimony of Saylor.
58. If the “long lake” description of IB 56, principle 4 is applied, a line would be run through the center of the lake with lines drawn from each owner’s shore boundary to intersect at the center line. Testimony of Saylor, testimony of Marbach.
59. If the “long lake” principle is applied to properties around Hudson Lake, the riparian boundaries of properties located in the bay areas around the lake would run parallel to the shore, effectively leaving those properties without access to the public waters. Testimony of Saylor.
60. Determining the center of Hudson Lake is difficult because of the number of measurements that would have to be taken from shore to shore due to the irregular shape of the lake. Testimony of Saylor.
61. Hudson Lake cannot be considered a long lake because the number of coves that exist around the lake. Testimony of Saylor.
62. Saylor observed Johnson’s pier placed across Nelson’s riparian boundary when Saylor was on the property on June 5, 2020. Testimony of Saylor.
63. The legal lake level of Hudson Lake is set by the Department of Natural Resources at 763.09 BFE 767. A weir controls the lake level to prevent the water level from causing flooding to homes and problems with the drainage. Id.
64. The lake level changes depending on the season. Totality of the evidence.
65. The water level of the lake does not impact the shape of the lake. Testimony of Saylor.
66. Saylor is found to be a qualified surveyor experienced in creating riparian surveys. He used accepted surveying methods in creating this survey, visited the property to confirm property boundaries and used his experience with IB 56 to determine the respective riparian zones. Saylor’s testimony is found to be credible, and his survey is assigned great weight.
67. Christian Marbach is a surveyor licensed in Louisiana (currently inactive), Indiana, Michigan, and Ohio. He has been a surveyor for 30 years. Testimony of Marbach.
68. Marbach did not conduct a survey. Rather, he created a drawing, the purpose of which was to try to determine how to the apportion the lake so that all owners have their rights extended to the center of the lake. Testimony of Marbach.
69. Marbach concluded Hudson Lake is a “long lake.” To create his drawing, he used a “GIS grade” aerial photographs. Using the photographs, he measured the width of the lake from “shore to shore” to obtain the “average centerline” of the lake. He then drew lines extending from what appeared on the GIS photographs to be the property corners to the line he determined to be the centerline of the lake. Testimony of Marbach. The “Hick’s Cove” portion of Marbach’s drawing is reproduced below:
70. Marbach’s application of IB 56 principle 4 would “cut off” the riparian zones of owners along Hudson Lake and would have to be adjusted for those properties where the riparian line would run parallel to the shore. Testimony of Marbach; testimony of Saylor.
71. Marbach admitted his document was not created to determine riparian boundaries. Rather, he was illustrating what a person would own if “the water keeps receding and what the person who has riparian rights will own at some point.” Testimony of Marbach.
72. Marbach’s testimony is not particularly helpful in determining riparian zones primarily because it was not created for that reason. Further, Marbach’s premise that private ownership of the public freshwater lake extends to the center of the lake if the water recedes is unfounded.
73. Marbach’s drawing and his testimony are assigned little weight in determining how the parties’ respective riparian rights are to be determined.
74. Ryan Flaherty (Ryan), Johnson’s son, spent his summers at Hudson Lake and resided there while he was taking college courses online. He studied Biomedical Engineering at Purdue University. Prior to the hearing, he familiarized himself with IB 56. Testimony of R. Flaherty.
75. Ryan explained his understanding of riparian boundaries as being “divided proportionally to the amount of frontage a person owns.” Testimony of R. Flaherty.
76. Ryan denied that Nelson’s pier had always been placed perpendicular to the shoreline and that the pier was placed in a different location in 2014 when Nelson installed a new floating pier. Id.
77. Johnson angled her pier north in 2020 because muck in the water lakeward of their shore makes “doing anything difficult.” Angling the pier north allowed the pier to be in deeper water. Testimony of Ryan.
78. Ryan created a model, using an “autocad” program which was intended to show how to equitably distribute the parties’ riparian zones, based the amount of lake-frontage owned by the parties. Testimony of R. Flaherty.
79. Ryan’s modeling exercise was not based on accepted surveying principles. Testimony of Saylor.
80. Ryan’s personal observations of Johnson’s pier are considered credible. However, the modelling he conducted is not considered credible evidence in determining the parties’ riparian boundaries.
81. Dan Flaherty recalls the Nelson’s pier from 2003 to 2014 as pointing “straight north” toward the center of the lake. Testimony of D. Flaherty.
82. In Dan’s experience, there is a “severe degree of angling” on the Nelson pier as compared to its placement before 2015. Testimony of D. Flaherty.
83. Johnson testified that the previous owner of her property told her the piers “always faced directly north” directly across the lake. Testimony of Johnson. This hearsay statement is granted little weight.
84. Johnson maintained the placement of the Nelson pier changed from its location from 2003 to 2014. Johnson supported her testimony with Exhibits 4-12 and 4-13 as depicted the “historical placement of the pier,” which is different from the current placement of the Nelson pier. The photographs are of little value because no time frame given for the pictures.
85. The Nelson pier was not mobile and remained in the same spot from 2003 to 2014, on the “other side” of the Nelson property. Testimony of Johnson.
86. In 2016, Johnson told Mr. Nelson, now deceased, that the pier was “starting to be angled,” based on a property marker that Johnson placed at an “orange dot” that was part of the original survey of Hick’s Units. Testimony of Johnson.
87. Johnson moves the location of her pier during the year. In the winter it is “angled more” so that it doesn’t take a “direct impact if ice melts” and in the summer is directed “more straight out.” Sometimes she places bridges from her property to get her pier out to deeper water. Testimony of Johnson.
88. Johnson maintains her pier at 15 degree angle. In the summer, she tried to keep her pier toward the center of her property so she could keep a swim mat in the deeper water. Testimony of Johnson.
89. Johnson has always considered her riparian boundary to be “straight north of where the property marker at the edge of the property is.” Testimony of Johnson.
90. Johnson testified that if “anyone goes off of north” in their pier placement, there is a “conversation about it.” According to Johnson, no one is impacted in a negative way using the “long lake” principle of IB 56. Testimony of Johnson.
91. According to Johnson, it would be an advantage to the Nelson’s pier to be placed due north. Testimony of Johnson.
92. Johnson testified that if she moves her pier west along her shoreline, she would not be able to access it. Angling of her pier has brought detriment to the use of her pier and has affected her ability to have access to her pier. Testimony of Johnson.
CONCLUSIONS OF LAW
93. A “riparian owner” is defined in 312 IAC 11-2-19 as “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.”
94. Both Nelson and Johnson own property abutting Hudson Lake and are therefore riparian owners. As such, they each may be permitted to extend a qualifying temporary structure lakeward of the shoreline of Hudson Lake. 312 IAC 11-3-1(b).
95. A temporary structure must meet all the qualification of 312 IAC 11-3-1. At issue here are 312 IAC 11-3-1(b)(2) and (b)(3), which provides:
(b) In order for a temporary structure to qualify, the structure must satisfy each of the following: . . .
(2) not infringe on the access of an adjacent landowner to the public freshwater lake;
(3) not unduly restrict navigation.
96. Each party bears the burden of proving their respective arguments by a preponderance of the evidence.
97. When determining riparian boundaries, the Commission is required to consider IB 56 as guidance. 312 IAC 11-1-4.
98. IB 56 does not have the effect of law; however, it is widely followed to provide guidance for determining riparian boundaries. England v. Ball & Arend, 15 CADDNAR 77, 79 (2019).
99. Nelson argues the third principle of IB 56 is applicable:
Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of riparian zones are generally determined by extending a straight line at a perpendicular to the shore. If the boundaries of two owners intersect at the shore, or in proximity to but landward of the shore, the boundaries of the riparian zones may be formed by a perpendicular to the shore from the point of intersection of the onshore boundaries. Application of the third principle is most compelling where landowners in the vicinity have historically used a perpendicular line to divide their riparian zones, but the principle should not be applied where a result is to deprive a riparian owner of reasonable access to public waters.
100. Johnson argues the fourth principle should be applied:
Where the shore is irregular, and it is impossible to run lines at right angles to the shore for a just apportionment, the lines forming the boundaries between riparian zones should be run to divide the total navigable waterfront in proportion to the length of the shores of each owner taken according to the general trend of the shore. If the navigable waterfront borders a lake that is substantially round or is a bay that is substantially round except for its connection to the main body of the public waters, the riparian zones may be formed by running lines from each owner’s shore boundaries to the center of the lake or bay. If the navigable waterfront borders a long lake or other public waters that are not substantially round, the boundaries of the riparian zones may be formed by running a line through the center of the public waters, with deflected lines run from each owner’s shore boundaries to intersect centerline at perpendiculars. . . . [F]or a long lake or other public waters, which are not substantially round, by running a line from the intersection of their boundaries to intersect the centerline at a perpendicular.
101. The piers around Hudson Lake have traditionally been maintained perpendicular to shore.
102. The weight of the evidence, particularly the evaluation of a surveyor, supports a conclusion that the shoreline for these properties is roughly straight, not rounded.
103. Additionally, there is no evidence that application of the third principle deprives the parties, or other riparian owners, of reasonable access to the public waters of Hudson Lake.
104. Johnson’s argument the riparian zones should be determined by application of IB 56, principle 4 as applied to round lakes, is not supported by the weight of the evidence.
105. The weight of the evidence establishes that Johnson’s pier was extended beyond Johnson’s riparian boundary and into the Nelson riparian zone.
106. Nelson’s pier did not extend into Johnson’s riparian zone.
107. This order applies only to the riparian boundary between Nelson and Johnson.
108. To assist with safe navigation, and to preserve the rights of the public and of other riparian owners, IB 56 contemplates ideally 10 feet of clear space on both sides of a riparian boundary. IB 56.
109. The parties have not identified any barriers to both parties maintaining a clear space of 10’ feet on each side of the riparian boundary line.
Final Order:
110. The riparian boundary between Nelson and Johnson shall be determined by extending a straight line at a perpendicular to the shore as suggested by IB 56 principle 3, and in accordance with the Saylor survey.
111. A clear space of 10 feet from the riparian zone boundary shall be maintained by Nelson on the east side of the riparian zone boundary.
112. A clear space of 10 feet from the riparian zone boundary shall be maintained by Johnson on the west side of the riparian zone boundary.
113. No portion of a temporary structure, including watercraft moored to the temporary structure, may be maintained within the clear space within which constriction of open water is prohibited. The clear space must be clear of piers, pier extension and moored boats and may be used only for loading and unloading boats and for active recreation.
114. Johnson’s pier placement in June 2020, interfered with Nelson’s riparian rights.
115. Nelson’s pier placement does not interfere with Johnson’s riparian zone.