Rehlander v. Lenzen, DNR, & Templin & Amelio (22-025W), 16 CADDNAR 19
Administrative Cause Number: 22-025W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: pro se
Respondent’s Counsel: Rebecca McClain, William Gooden, & Gary Hancock
Date: August 10, 2023
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER
78. PL-24341-0 is hereby affirmed, and summary judgment is granted in favor of the Department of Natural Resources, Robert Lenzen, Marvin Templin, and Nicholas Amelio on this issue.
79. Any issue raised by Robert Lenzen and Marvin Templin as to whether Rehlanders’ pier encroaches on the Easement riparian zone is waived.
80. This non-final order disposes of all the issues in this matter.
ORDER ON SUMMARY JUDGMENT WITH FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND FINAL ORDER
Procedure and Jurisdiction:
1. The Petitioners, Kimberly and Raymond Rehlander (Rehlanders) initiated this proceeding governed by Ind. Code § 4-21.5-3 and administrative rules found at 312 Ind. Admin. Code 3-1 by filing a request for appeal and an amended request for an appeal with the Natural Resources Commission (Commission) on March 21, 2022.
2. Rehlanders appealed the grant by the Department of Natural Resources (Department) of a written group pier license issued to owners of an easement that burdens Rehlanders’ property. In summary, Rehlanders raised the following deficiencies in the permit:
a. The permit was not accompanied by a sketch of the pier as stated within the permit;
b. The group pier does not comply with 312 IAC 11-4-8 because it is longer than 200 feet and the pier, with the attached appendages or watercraft is wider than the allowable 8 feet.
c. The placement of the pier should comply with NRC guidelines and applicable rules or a legal riparian survey depicting equitable apportionments and meet the requirements of “Nosek” should be provided.
d. The riparian zones should be determined by dividing the “total navigable waterfront in proportion to the length of the actual shorelines of each owner taken according to the general trend of the shore.” (citing England v. Ball & Arrend, 15 CADDNAR 77 (2019)).
e. The group pier may create a safety hazard.
3. The Commission issued an Interlocutory Order of Summary Judgment (Interlocutory Order) on October 28, 2022. A complete statement of the procedural posture of the case from the time Rehlanders filed their complaint to the date the Interlocutory Order was issued is included in the Interlocutory Order and is fully incorporated into this Order.
4. The Commission determined in the Interlocutory Order that the following issues were barred by collateral estoppel from the further consideration: whether the Easement Holders possess riparian rights that include the right to extend a pier from the Easement, and the manner in which the riparian boundaries were to be determined.
5. The issue of whether the group pier permit issued by the Department met the requirements of 312 IAC 11-4-8 was not resolved in the Interlocutory Order. See, Interlocutory Order, page 12.
6. The Department filed a Motion for Summary Judgment, Brief in Support of Motion for Summary Judgment, and Designation of Evidence in support of its Motion on March 28, 2023.
7. Respondents Robert Lenzen and Marvin Templin filed Respondents’ Lenzen’s and Templin’s, Motion for Summary Judgment, Designation of Evidence and Brief in Support on March 28, 2023.
8. Intervening party Nicholas Amelio filed Intervenor’s Motion in Concurrence on March 28, 2023.
9. Rehlanders filed Petitioners’ Response to Respondents, DNR, Marvin Templin and Robert Lenzen and Intervenor Nicholas Amelio’s Motions to Dismiss on April 26, 2023.
10. Attorney Kristin McIlwain entered an appearance on behalf of Bob Lenzen and Marvin Templin on May 1, 2023.
11. The Department filed DNR’s Reply in Support of Motion for Summary Judgment on May 18, 2023.
12. The State of Indiana, through the Department, has been vested by the Indiana Legislature with full power over public freshwater lakes in the state through the Lake Preservation Act. IC § 14-26-2-5(d).
13. The Commission has adopted rules found at 312 IAC 11-3 to assist with the administration of the Lake Preservation Act. IC § 4-21.5-1-15 and 312 IAC 3-1-2.
14. The Commission is the ultimate authority of the Department. IC § 14-10-2-3.
15. The Commission has jurisdiction over the subject matter and over the persons of the parties in this proceeding.
Summary Judgment Standard
16. A party may move for summary judgment at any time after a proceeding is assigned to an administrative law judge. I.C. § 4-21.5-3-23.
17. Except with respect to service of process, governed by I.C. § 4-21.5-3-1, and the final disposition of an administrative proceeding, governed by I.C. § 4-21.5-3-28 and 29, Trial Rule 56 of the Indiana Rules of Trial Procedure controls the consideration of a motion for summary judgment. I.C. § 4-21.5-3-23.
18. The ALJ will consider a summary judgment “as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.” I.C. § 4-21.5-3-23. Summary judgment shall be granted “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial rule 56(c); Frendeway & Bartuska v. Brase, 15 CADDNAR 121, 122 (2020).
19. The party moving for summary judgment bears the burden of establishing the party is entitled to summary judgment regardless of whether the party would have the burden of proof in an evidentiary hearing. Mueller-Brown v. Caracci, 13 CADDNAR 156, 157 (2013).
20. The burden of establishing there are no material factual issues is on the party moving for summary judgment. Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012). Once the movant has met this burden, the opposing party must present sufficient evidence to show the existence of a genuine triable issue. Id.
21. “A party opposing the motion shall designate . . . each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.” Ind. Trial Rule 56(C).
22. Summary judgment shall be granted “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id.
23. Affidavits supporting or opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Trial Rule 56(E).
Undisputed Material Facts:
24. The Findings of Fact stated in the Interlocutory Order are fully incorporated herein and will only be restated to the extent necessary for discussion of the issues raised in this summary judgment order.
25. The property owners of Lots 2 through 12 of Krivak Acres (Easement Holders) are owners of a 20-foot easement (Easement) along the shoreline on the north end of property abutting Bass Lake owned by the Rehlanders. See Joseph Krivak and Emily Krivak v. Robert Dempsey, et al, Cause no. 25C01-9105-CP-0178, Fulton County Circuit Court (1992).
26. Amelio owns property immediately north of, and adjacent to, Rehlanders’ property.
27. The property at issue has been the subject of litigation for almost 30 years. The Commission’s most recent final order is found in Rehlander v. Lenzen, et. al. & Amelio, 15 CADDNAR 115, 120 (2020) (Rehlander I).
28. The Commission’s final order in Rehlander I addressed some of the same issues that Rehlanders appear to argue in this matter. In relevant part, the Commission found the Easement Holders possess a dominant estate over the northern 20 feet of Rehlanders’ property and abutting Bass Lake; the riparian zones between Amelio’s property north of Rehlanders’ and between the southern boundary of the Easement and the rest of Rehlanders’ property are determined by extending a roughly straight line into Bass Lake; and clear space must be maintained ten feet north and two feet south of the riparian boundary shared by Amelio and Rehlander and clear space must be maintained seven feet north and seven feet south of the riparian boundary shared by the Easement Holders and the rest of Rehlanders’ property. Id.
29. The Commission also determined in Rehlander I that the Easement Holders could not erect or maintain a pier from the Easement without first obtaining a written group pier permit. Id.
30. On May 20, 2021, Robert Lenzen submitted to the Department an application for a group pier permit. Lenzen was listed as the applicant and Marvin Templin was listed as the agent on the application. The application was identified by the Department as PL-24341-0. Affidavit of Jennifer Ware (Ware Affidavit); Affidavit of Robert Lenzen (Lenzen Affidavit).
31. The application included aerial photographs depicting the proposed placement of the group pier, a copy of the Commission’s order in Krivak v. DNR, Dempsey, Lenzen and Amelio, 6 CADDNAR 176 (1994), and a copy of the Commission’s order from Rehlander I. Exhibit 1.
32. The Department sent the applicants two “Notices of Deficiencies” requesting additional information on the exact location and configuration of the group pier. Ware Affidavit, Exhibit 3.
33. Lenzen submitted a final sketch of the proposed pier on December 13, 2021. Ware Affidavit, Exhibit 5.
34. The Department’s Division of Fish and Wildlife conducted a Fish, Wildlife & Botanical Review of the permit application and recommended approval of the permit. Ware Affidavit, Exhibit 4.
35. Lieutenant Shawn Brown, an Indiana Conservation Officer, reviewed the application on July 21, 2021 and determined the proposed pier would not “affect navigation or create a hazard.” Ware Affidavit, Exhibit 7.
36. Jennifer Ware, Assistant Director of the Department’s Division of Water conducted a technical review of the pier and determined that placement of the group pier would comply with the requirements set out in Rehlander I. Ware Affidavit.
37. Ware further determined that this pier “would not affect the public trust or impede adjacent riparian rights.” Id.
38. Ware issued PL-24341-0 on January 14, 2022, effective February 1, 2022. The group pier is described in PL-24341-0 as follows:
A group pier will be installed on Bass Lake and will extend a total of 300’ lakeward of the shoreline. The pier will measure 3’ wide beginning at the shoreline then extending 66’ lakeward. The remaining 234’ of the pier will be 2.5’ wide. The pier will include four 7.5’ by 7.5” fingers, which will extend off the north side. The pier will be installed using handheld tools.
Exhibit 2.
39. Several specific conditions were placed on the exercise of the permit. The following specific conditions are relevant to this dispute:
3) Place the pier in conformance with the accompanying sketch. The pier and any watercraft moored shall extend no more than 300 feet lakeward of the legal shoreline.
6) No portion of a temporary structure, including watercraft moored to the temporary structure, may be maintained within a zone designated herein as a “clear space” within which constriction of open water is prohibited. The clear space must be clear of piers, pier extensions and moored boats and may be used only for loading and unloading boats and for active recreation.
7) Clear space is required ten (10) feet north and two (2) feet south of the riparian boundary line between Amelio and Rehlander. Clear space is required seven (7) feet north and seven (7) feet south of the Easement Holders’ southern riparian boundary.
DNR Exhibit 2.
40. The permit also contained “DNR Project General Permit Conditions” which included a condition that the Department “may revoke the permit for violation of any condition or applicable statute or rule.” Id.
41. Kimberly Rehlander was listed on the Permit’s “Interested Parties” Service List. Id.
42. The group pier was extended from the Easement in 2022. Lenzen Affidavit.
43. Lenzen submitted aerial photographs with his affidavit showing the location of the pier in 2022. Exhibit B also shows lines superimposed on the photograph showing the boundaries of the Easement and the clear spaces. Id.
44. According to Lenzen, in 2022, “the easement pier was installed precisely as required by the Final Order in administrative cause number 18-059W, and the [permit] Approval.” Id. at para. 15.
45. Rehlanders’ pier was installed in 2022 at an angle toward the group pier and without regard to the 7 feet of clear space south of the riparian boundary between the Easement property and the rest of the Rehlander property as required in Rehlander I. Lenzen Affidavit, Exhibits 2 and 3.
46. Lenzen also included a copy of the PL-24341-0, which included a copy of a hand-drawn sketch of the pier. Id., Exhibit A.
Summary of the Motions for Summary Judgment
47. The Department argues there is no dispute of material fact that the group pier complies with 312 IAC 5-6-3 and 312 IAC 11-4-8. The Department argues the pier length of 300 feet is permissible and the width of the pier does not extend more than one-half of the applicant’s shoreline. Further, “the pier is within the riparian zone designated under Admin. Cause No. 18-059W.” DNR’s Memorandum in Support of Motion for Summary Judgment.
48. Respondents Lenzen and Templin raise arguments similar to those raised by the Department. Specifically, they argue the pier does not create a navigational hazard, it complies with the requirements of 312 IAC 11-4-8, and it does not infringe on Rehlanders’ riparian zone.
49. Respondents Lenzen and Templin also argue they are entitled to summary judgment on the issue of whether Rehlanders’ pier infringes upon the Easement riparian zone. They also request an order enjoining Rehlander from any future infringement.
Summary of Rehlanders’ response:[1]
50. In summary, Rehlanders argue:
a. that the group pier does not comply with 312 IAC 11-3-1(b) because it prohibits them from extending their pier out to 300 feet from their shoreline should they choose to do so and does not comply with 312 IAC 11-4-8; and
b. does not comply with I.C. 14-26-2-23(b) because the application does not provide the Department with sufficient information concerning the proposed project and does not include written authorization from the owner of the property.
51. Rehlanders also include arguments with regard to the parties’ respective riparian rights, whether the Rehlander pier complies with law, and whether the Commission’s decision in Rehlander I (Cause No. 18-059W) was correct. As found in the Interlocutory Order, these issues are barred from further litigation. Rehlanders’ present several arguments that were addressed in previous litigation.[2]
Conclusions of Law:
52. A group pier may not be placed “within the shoreline or water line of a public freshwater lake” unless a written license for the pier has been obtained from the Department pursuant to 312 IAC 11-4-8, which provides:
(a) A person must not place a group pier along or within the shoreline or water line of a public freshwater lake unless the person obtains a written license from the department
under this section.
(b) The applicant must demonstrate exercise of the license would not do any of the following:
(1) Unreasonably impair the navigability of the public freshwater lake.
(2) Pose an unreasonable hazard to life or property.
(3) Violate the public rights described in IC 14-26-2-5.
(4) Interfere with the reasonable exercise of boating operations by the public.
(5) Interfere with the property interests of a landowner having property rights abutting the lake or rights to access the lake.
(c) The department shall condition a license for a group pier so the placement, configuration, and maintenance of the pier as follows:
(1) Provide a reasonable buffer zone between the pier and the:
(A) portion of the lake two hundred (200) feet from the shoreline or water line; and
(B) riparian zone of adjacent property owners to provide for reasonable navigation by the adjacent property owner and by the public. Except as otherwise provided in this clause, the department shall require at least five (5) feet of clearance on both sides of a riparian line (for a total of ten (10) feet). The department may require as much as ten (10) feet of clearance on both sides of a riparian line (for a total of twenty (20) feet) if, based upon the opinion of a qualified professional, additional clearance is required for reasonable navigation. The department may approve an exception to this clause where adjacent riparian owners use a common pier along their mutual property line, and the purposes of this clause are satisfied by waters elsewhere within their riparian zones.
(2) Do not result in unreasonable traffic congestion either:
(A) in the immediate vicinity of the pier; or
(B) to impair the carrying capacity of the public freshwater lake where the department has determined the carrying capacity in an analysis which is published before the license application is filed.
(3) Do not authorize structures that are likely to be hidden or obscured so as to pose a hazard to the public.
(4) Minimize disturbances to vegetation and sediments in close proximity to the shoreline or water line.
(5) Are unlikely to trap debris or redirect sediments or currents to cause erosion or sedimentation that is detrimental to navigation or to the property rights of other riparian owners.
(6) Avoid causing or appearing to cause appropriation of public water unnecessary to the reasonable exercise of riparian rights. A pier must not extend more than one- half (1/2) the width of the applicant's shoreline or water line. As used in this subdivision, "width" is determined by the straight line formed between the points located at intersections of the applicant's property lines with the shoreline or water line.
53. The Department’s evidentiary material supports a finding the conditions for granting the group pier permit under 312 IAC 11-4-8(b) have been met. Law enforcement inspected the area and determined the pier would not impair navigability, pose an unreasonable hazard to life or property, or interfere with boating by the general public.
54. Additionally, appropriate specific and general conditions were placed on the exercise of the license.
55. The Department has also demonstrated the pier would be placed within the Easement property riparian zone and with the appropriate safety zones as ordered in Rehlander I.
56. Respondent’s Lenzen and Templin, and Intervenor Amelio concurred with the Department’s arguments on summary judgment on the issue of the whether PL 24341-0 should have been granted. Lenzen, Templin and Amelio have likewise established that the group pier permit was properly granted and will, together with the Department, be referred to collectively as “Respondents.”
57. Once the Respondents met the burden of establishing summary judgment should be granted in their favor, the burden was on Rehlanders to designate each material issue of fact which Rehlanders assert precludes entry of summary judgment and to show why judgment should not be entered as a matter of law in favor of the Respondents.
58. Rehlanders did not dispute any of the evidentiary materials presented by the Respondents but make several arguments as to why PL-243410-0 should not have been approved.
59. Any issue raised by the Rehlanders with regard to the Easement Holders’ right to extend and maintain a pier at the Easement, and with regard to the parties’ respective riparian zones have been fully litigated and will not be addressed in this order. See, Interlocutory Order.
60. Rehlanders argue the group pier is too long and too wide.
61. A temporary pier or boat lift is authorized on Bass Lake in Starke County by a general license under IC 14-26-2 if the structure extends no more than: 150 feet from the shoreline or waterline and satisfies 312 IAC 11-3-1(b)(6); or 300 feet from the shoreline or water line and does not extend over water that is continuously more than 3 feet deep. 312 IAC 5-6-3.
62. 312 IAC 11-4-8, governing group piers, does not place a specific restriction on the length of the group pier as long as the pier complies with the requirements of 312 IAC 11-4-8(b). The undisputed evidentiary materials presented by the Department show compliance with this provision.
63. As to the width of the pier, Rehlanders argue that the pier, the appendages added thereto and the boats moored on the pier may not exceed 10 feet.
64. 312 IAC 11-4-8(c)(6) requires that the pier itself not exceed “more than one-half (1/2) the width of the applicant's shoreline or water line.”
65. The shoreline of the Easement is 20 feet; therefore, the width of the pier cannot exceed 10 feet. The group pier and the fingers attached thereto do not exceed 10 feet. The rule does not consider boats moored to the pier in the calculation of the width of the pier.
66. The group pier also complies with the clear space requirements order in Rehlander I. Two feet of clear space must be maintained south of the Amelio/Rehlander property line and seven feet must be maintained north of the boundary between the Easement boundary and the remainder of Rehlanders’ property.
67. Rehlander also argues the permit does not comply with Ind. Code 14-26-2-23 because the Lenzen did not provide the Department a written acknowledgment from the landowner, with the application. Rehlander also argues a plan “that provides the department with sufficient information concerning the proposed project” has not been submitted as required by IC 14-26-2-23(b).
68. IC 14-26-2-23 requires the application for a permit under the statute to include
“[a] written acknowledgement from the landowner that any additional water area
created under the project plan is part of the public freshwater lake and is dedicated
to the general public use with the public rights described in section 5 of this
chapter.
69. There is no indication “additional water area” is created by installing and maintaining a group pier. A written acknowledgement of the landowner is therefore not required.
70. The group pier plan was sufficiently detailed for the Department. The Rehlanders’ argument to support this argument is centered the Rehlanders’ continued disagreement with the riparian zones established in Rehlander I. Again, the parties’ riparian boundaries have already been established by previous orders of the Commission.
71. Rehlanders have not established why summary judgment should not be granted in favor of the Respondents.
72. Summary judgment is therefore granted in favor of the Respondents on the issue of whether PL-24341-0 was properly granted.
73. Lenzen and Templin also request summary judgment that Rehlanders’ pier infringes on the Easement riparian zone and does not comply with the clear space requirements of Rehlander I.
74. This argument is in the nature of a counter claim against Rehlanders and is raised for the first time in the summary judgment motion.
75. Pursuant to 312 IAC 3-1-4(b), counterclaims must “be asserted in writing, filed and served not later than the initial prehearing conference, unless otherwise ordered by the administrative law judge.”
76. Because Lenzen and Templin did not assert this argument in writing before the initial prehearing conference, the issue of whether Rehlanders pier interferes with the Easement riparian zone is waived.
77. To the extent the Rehlanders have not complied with prior orders of the Commission, Ind. Code 4-21.5-6 provides a process for civil enforcement of administrative orders.
[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] Rehlanders filed “Petitioner’s Response to Respondents, DNR, Marven Templin and Robert Lenzen and Intervenor Nicholas Amelio’s Motions to Dismiss” presumably in response to the Motions for Summary Judgment filed by the Department and the other respondents. The Commission considers this document Rehlanders’ response to the pending motions for summary judgment.
[2] Rehlanders argue:
The commission also applied a restriction as to a minimum clearance of 16 feet between the Krivak/Rehlander (servient estate) pier and any adjacent pier acknowledging that tow piers were installed at opposing angles (exhibits 1 and 4). Why did the NRC not enforce compliance of this simple restriction within Cause No. #18-059W? This restriction, if adhered to, would resolve the hazardous condition caused by the extension of a group pier by the easement holders whilst providing reasonable access for all users. Please note the navigational hazard that exists in both photos (attached to the response). Please respond as to how PL 24341-0 has alleviated said hazard. Also please note the existence of Amelio’s pier in the 2022 photo. How has the relocation of Amelio’s pier (in the vicinity of 100’ to the south) resolved any navigational issues between the Petitioner and Respondents?
In summary, it becomes quite apparent by the submittals of opposing parties and the attached examples that PL 24341-0 does not adhere to existing statutes, rules, and law, and does not resolve the safety issues regarding safe clearance between opposing structures provided for in Causes 92-338W and 18-059W. Cause 18-059W also does not provide clear direction as to equitable riparian access to navigable waters. Hence, Rehlanders pleads that PL 24341-0 be ruled invalid and that any proposed pier by the easement holders be constructed to honor all statutes, rules, and laws. Rehlander requests that their riparian right to access the navigable waters of Bass Lake be honored allowing Rehlander a pier which qualifies under a general license. Rehlander questions the intent of the other involved parties as to requesting that the NRC enjoin Rehlander from erecting a pier on Bass Lake under a valid general license. Under what authority would the DNR do this? Please refer to IC 14-26-2-23(e)(2)(b) and 312 IAC 11-3-1. In what manner does the Rehlander pier not conform to such? Please also refer to the attached CADDNAR Wallace v. Stone, 14 CADDNAR 140 (2017), in which ALJ Wilson and Commission ruled that a property boundary that approaches the shoreline at “other than a perpendicular” should extend “in a straight line at a perpendicular to the shoreline” citing Information bulletin # Nosek.
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