Permit #PL-12,520 is affirmed and administrative cause numbers 88-267W and 88-268W are dismissed with prejudice.
FINDINGS OF FACT
1. On October 3 and 4, 1988 Thompson and Kellems, respectively, (the "Claimants") filed objections to issuance of Permit No. PL-12,520 to the City of LaPorte.
2. This permit was approved by the Bureau of Water and Minerals Advisory Council (the "Council") on September 15, 1988.
3. IC 13-2-11.1, IC 4-21.5 and, 310 IAC 0.6 apply to this preceding.
4. The Natural Resources Commission (the "commission") is an agency as defined in IC 4-21.5-13. The Commission is the ultimate authority with respect to this proceeding.
5. The Claimants agreed to consolidate their complaints into one cause of action at a prehearing conference of November 10, 1988.
6. At the prehearing conference the Claimants presented four issues in regard to subject permit. The Claimants subsequently presented three of these issues for hearing:
(A) The pier is not temporary in nature as presented in the permit application,
(B) The pier is so long it restricts Claimant's access to lake, and
(C) The pier is not being properly maintained.
7. The Claimants pray for the revocation of subject permit under permit condition 5 (permit is attached) [permit is not included].
8. In regard to whether the pier is temporary in nature, the Claimants presented no evidence that it was not.
9. The Department presented the Division of Water ("DOW") "guidelines concerning temporary and permanent structures in public freshwater lakes" and the testimony of George Bowman of DOW, who stated that the pier in question met the criteria in said guidelines so as to be classified as "temporary".
10. Based on the above the pier mentioned in permit PL-12,520 is temporary in nature.
11. In regard to the issue of whether the pier is so long it restricts Claimant's access to the lake, this could be a non-issue because the evidence shows that Mr. Thompson does not own land adjacent to the pier.
12. Even so, evidence also shows that Mr. Thompson's access to the lake is not restricted by the pier in question. This evidence consists of testimony by witnesses and by an exhibit presented by Respondent Intervenor (map of Center Township E 1/2 S.E. 1/4, Sec. 34, T. 37N. R.3W) which shows the location of Claimant Thompson's property with respect to the pier.
13. The last issue is that the pier is not properly maintained. The Claimant argues that conditions are unsafe, litter is not picked-up, area is not properly lighted, and that there are lily pads around the pier.
14. To be able to examine these arguments, it must be assumed that a permit can be revoked for improper maintenance.
15. As to unsafe conditions, the evidence shows that 14 years ago, a man had a heart attack and fell off the pier; and about 5 years ago a 300 pound man partially fell through the pier and broke his leg. In addition, the Claimant presented a picture that shows at one point in time in 1988 one plank was missing from the pier.
16. The above evidence taken as a whole does not show unsafe conditions. The Respondent Intervenor's maintenance man (James F. Miller) testified to his dedication in performing daily maintenance at the pier. His testimony was not discredited.
17. In regard to litter pick up, Claimants presented a picture that showed litter at the pier at one point in time in 1988. Testimony, not contradicted, was that there was regular trash collection at the pier.
18. The improper lighting was only presented as the opinion of Claimant Thompson
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and was not proved by further evidence or testimony.
19. No law was presented that it was improper or illegal to have lily pads near the pier.
20. The Claimants presented an additional argument that the August 29, 1988 Engineering Report which was used by the Council in making its decision to approve permit PL-12,520 was invalid.
21. Evidence presented shows that the inspection was performed by Don R. McAllister but the report was signed by Robert E. Darfus. This occurred because Mr. McAllister had left DOW and was not available to sign.
22. Mr. Darfus should have signed for Mr. McAllister. By signing for himself he created the impression that he (Mr. Darfus) had actually performed the inspection.
23. The authentication problem does not, however, invalidate the Report. The report was prepared and signed under the supervision of George Bowman and he testified as to the authenticity of the data the report contains.
24. The last Claimant complaint was that some individuals using the pier parked their vehicles on Mr. Thompson's property.
25. This matter is not within the jurisdiction of this proceeding, but is a matter for the local law enforcement agency.
26. The Claimants have not carried their burden of showing that permit PL-12,520 should be revoked.