[CITE: Johnson v. DNR, 5 CADDNAR 112 (1990)]
[VOLUME 5, PAGE 112]
Cause #: 89-168W
Caption: Johnson v. DNR
Administrative Law Judge: Rider
Attorneys: Feeney; McCoy, DAG
Date: February 26, 1990
ORDER
[NOTE: THE DECISION WAS
REVERSED ON JUDICIAL REVIEW BY THE LAPORTE CIRCUIT COURT AS SET FORTH BELOW.
THE DEPARTMENT APPEALED IN CAUSE NO. 46A039101CV8, BUT THE APPEAL WAS DISMISSED
ON PROCEDURAL GROUNDS: "IT IS ORDERED THAT THE MOTION FOR LEAVE TO FILE
BRIEF OF APPELLANT IS DENIED AND THIS CAUSE IS DISMISSED."]
[The
issuance of] Permit No. PL-13,087 is affirmed.
FINDINGS OF FACT
1. On August 11, 1989, Martin 0. Johnson (the
"Claimant") filed an objection to a concrete ramp the Department of
Natural Resources (the "Department") was allegedly planning to build
on Hog Lake.
2.
At the prehearing conference on September 20, 1990, it was determined that the
Claimant's objection was to permit No. PL-13,087, which was
signed by the Advisory Council Chairman and the Acting Deputy Director on July
20, 1989.
3.
Permit No. PL-13,087 allows the Division of Fish & Wildlife of the
Department to build a gravel ramp at the Hog Lake Public Fishing Site (Rolling
Prairie Conservation Club).
4.
Restrictions on Permit No. PL-13,087 were that the ramp would be below the
surface of the water when lake is at its average normal level and all
excavation activities are confined to the immediate vicinity of the boat ramp.
5.
IC 13-2, IC 4-21.5 and 310 IAC 0.6 apply to this proceeding.
6.
The Natural Resources Commission (the "Commission") is an agency as
defined in IC 421.5-1-3. The commission is the ultimate authority with respect
to this proceeding.
7.
The parties agreed that no question of material fact was in dispute here and
decided to settle this case by Summary Judgment brief.
8.
The Claimant filed his brief on October 16, 1989; the Department followed on
November 20, 1989; and the Claimant submitted a rebuttal brief on November 30,
1989.
9.
The effectiveness of the permit was stayed on November 27, 1989, upon request
of the Department, until a final order was issued by the Commission.
10.
An oral argument was held in LaPorte, Indiana on
February 8, 1990, in regard to Summary Judgment Motions filed by the parties.
11.
During the course of this litigation the Claimant has raised four issues to be
decided:
a. since ownership of land is
in question here, the administrative law judge may lack authority to decide
this case;
b. since Mr. Johnson holds the
deed to the bed of Hog Lake, he owns the lake; and therefore, Hog Lake is not a
public fresh water lake;
c. that the wording of the
deed and the movement of the lake level tends to show that the Department is
not a littoral (riparian) owner as to Hog Lake; or
d. even if the Department is
found to be a littoral (riparian) owner, the building of this ramp on the lake
bed is a trespass on land owned by the Claimant.
12. The
question of the authority of the administrative law judge to decide this case
even though issues are included that are beyond administrative competence (e.g.
ownership of land), is governed by the doctrine of primary jurisdiction. (Kuss v. DNR and Prudential Insurance, AC No.
88-275W, 5 CADDNAR 51 (July 12, 1989))
13.
The doctrine essentially holds that when any part of the proceeding must first
be heard by the agency, the whole proceeding must first be heard by the agency.
(Shlens v. Eqnatz
(1987 Ind. App.) 508 NE 2d 44,46)
14.
In the case at bar, since review of the issuance of permit No.
PL13,087 is within the exclusive jurisdiction of the
agency, the administrative law judge must decide all issues that go to the
propriety of said permit.
15.
The definition of "public freshwater lake" is contained in IC
13-2-11-1.1 as follows: a lake that has been used by the public with the
acquiescence of riparian owner; ...
16.
Uncontroverted evidence shows that Hog Lake has been used by the public openly
and without complaint since at least 1960 and probably
[VOLUME 5, PAGE 113]
well before then. Ownership is
immaterial.
17.
Based on the evidence of open public use without complaint, Hog Lake is a
"public freshwater lake" as defined by law.
18.
Facts involved in determining ownership and littoral (riparian) rights include
a brief history of the ownership of the area in question.
19.
The Religious Zionist Labor Party of Chicago (RZLP) originally had title to 26 2/3
acres which includes the area in dispute here.
20.
In 1943 the RZLP conveyed a four acre portion of the 26 2/3 acres to the
Rolling Prairie Conservation Club (the "Club") which, in turn,
conveyed the land to the Department (then the Indiana Department of
Conservation) in 1957.
21.
Also in 1957, the RZLP conveyed the remaining part of the 26 2/3 acre tract (22
2/3 acres) to Richard A. Chikos and Martin 0. Johnson (the Claimant).
22.
In 1960, Mr. Chikos conveyed his interest in the 22
2/3 acres to the Claimant.
23.
A portion of the 22 2/3 acres is under the water of Hog Lake.
24.
To determine whether the Department is a littoral (riparian) owner, it is
necessary to examine the language in the original deeding by RZLP to the Club.
25.
The four acres owned by the Department lies due North
of Hog Lake. In the deed, the eastern boundary of the parcel is to proceed
"thence south and parallel to the north and south center line of said
section 34 a distance of 425 feet plus or minus to the northerly line of Hog
Lake"
26.
The key words in the description are "to the northerly line of Hog
Lake" which obviously shows a conveyance of land to the waterline.
27.
The distance in the description is made unimportant by adding the term
"plus or minus" and alluding to a natural monument, the Hog Lake
shoreline"
28.
The southern border of the four acre tract is described as "following the
low water line of Hog Lake."
29.
Examination of the warding and the fact that the original conveyance was made
to a conservation club which immediately built a pier on the lake, shows that
the intent of the grantor was to deed land adjacent to the waters edge.
30.
This grant to the waters edge would make the Club a littoral (riparian) owner
and so to, subsequently, the Department.
31.
Any accretion which may have occurred since the conveyance to the Department
would be covered by IC 13-2-11.1-4 which states "accretion rights in
public freshwater lakes are limited to land from which the waters have receded,
or may recede, from natural causes only...."
32.
Claimant has shown no accretion by unnatural causes so if accretion has
occurred it must be assumed to be natural.
33.
Based on the language of the deed and the statutory description of accretion on
a public fresh water lake, the Department is a littoral (riparian) owner as to
Hog Lake.
34.
The last issue requires a comparison of the rights of a littoral (riparian)
owner vs. owner of the lake bed of a public fresh water lake.
35.
It is clear that if the lake were to be drained, the Claimant would have
exclusive use of the land under the lake.
36.
It is equally clear that since the land in question is covered by a public
freshwater lake, the landowner has forfeited certain rights to a littoral (riparian)
owner.
37.
It is clear both by statute (IC 13-2-11-1) and case law (Hardin v. Jorden, 140 U.S. 428 (1981) to Bath v. Courts, Ind. App. 459 N.E. 2d 72
(1984)) that littoral (riparian) ownership carries certain rights to use and
enjoyment of the adjoining waters.
38.
These rights to use and enjoyment appear to be limited only by conduct that
might be detrimental to other similarly situated users of the water.
39.
The permit in question here allows the Department to place a gravel ramp at a
site that has been used for at least 33 years to launch boats onto Hog Lake.
40.
The Department feels the gravel ramp is necessary because the present dirt area
is becoming torn-up and unsafe for public use.
41.
The permit requires the lakeward portion of the ramp
to be below the surface of the water when the lake is at its average normal
level.
42.
A ramp of this sort could hardly harm another's enjoyment of the lake waters
and, indeed, the ramp would not even be visible most of the time.
43.
IC 13-2-11.1 makes it clear that the state of Indiana holds and controls all
public freshwater lakes in trust for the use of all if its citizens for
recreational purposes (-2(b)).
44.
The installation of the gravel ramp in question here is necessary to promote
the recreational use of Hog lake for the citizens of
Indiana.
45.
The issues of law raised in this case are decided against the Claimant and
Summary Judgment is granted to the Department.
______________________________________________________________________
[Note: CADDNAR citation does not apply to LaPorte
Circuit Court entry.]
LaPorte
Circuit Court
On
September 24, 1990, the LaPorte Circuit Court entered
the followings findings of fact, conclusions of law, and judgment:
FINDINGS OF FACT
1. On
July 20, 1989, the Indiana Department of Natural Resources issued permit
#PL-13,087 without notice to affected persons, allowing the Indiana Department
of Natural Resources to construct a gravel boat ramp fifteen feet wide
extending twenty feet lakeward of the shoreline and
four feet before the average normal level of the lake in Hog Lake, situated in LaPorte County, Indiana.
2.
In 1960, the land under the water of Hog Lake was conveyed to Martin 0.
Johnson.
CONCLUSIONS
1.
The permit issued by the Indiana Department of Natural Resources, acting under
the administrative adjudication act is void because plaintiffs were affected
persons and were not given proper notice of the issuance of the permit.
2.
The question presented concerns the property rights, if any, of the Indiana
Department of Natural Resources to the land that extends into Hog Lake.
Jurisdiction to determine these rights is vested in the judicial branch of our
government and an administrative body has no power to exercise or perform a
judicial function.