Millers Lake in Noble County, Indiana is not a public freshwater lake, and therefore, is not subject to regulation under IC 13-2-11.1.
FINDINGS OF FACT
1. On August 8, 1991, Terry and Penny Waikel (the "Waikels") filed a request for review of the denial of application number PL-14,219 (the "application').
2. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Natural Resources Commission is the ultimate authority for the Department in this proceeding.
3. IC 4-21.5, IC 132-11.1 and 310 IAC 0.6-1 apply to this proceeding.
4. Department staff recommended denial of the application because: "the project will have an adverse effect on the waters of the lake and result in significant loss of wetland, associated resources and scenic beauty". (See Stipulated Exhibit II)
5. This recommendation was accepted and the application was denied by Gary D. Doxtater, Deputy Director, on July 23, 1991.
6. The Waikels insist that there will be no detrimental effects if they are allowed to construct a channel as requested.
7. The Waikels also raise the argument that Millers Lake in Noble County, Indiana is not a public freshwater lake, and therefore does not fall under the provisions of IC 13-2-11.1, the Lake Preservation Act (the "statute").
8. If Millers Lake is not a public freshwater lake as defined in the Statute, the Department has no authority to issue/deny permits there.
9. The question of detrimental effects is easy to dispose of.
10. The statute in section (2)(a) states: "the natural resources and the natural scenic beauty of Indiana are a public right, and the public of Indiana has a vested right in the preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state .... "
11. The Statute gives the Department the responsibility to uphold the public rights listed-above.
12. The Department's authority is established in section 3 of the Statute as follows: "(a)[n]o person may change... the shoreline of a public freshwater lake by ... otherwise causing a change in the area or depth or affecting the natural resources, scenic beauty or contour of the lake below the waterline or shoreline, without first securing a written permit issued by the Department.".
13. At hearing it was overwhelmingly proved by several expert witnesses that the natural resources and scenic beauty of the area would be detrimentally effected by the Waikels' channel.
14. The Waikels' channel as proposed would be 270 feet long, 25 feet wide, and 10 feet deep.
15. This channel would greatly increase the nutrient release into the lake waters.
16. Such an increase in nutrient release would be detrimental to fish in the lake.
17. Such a channel would also be detrimental to aquatic plants, such as bull rushes, which grow along the bank underwater.
18. The channel would also disturb rare species of vegetation found in the Millers Lake area.
19. The above facts indicate that the Department properly carried out its responsibilities under the statute in denying the application.
20. However, for the Department to exercise authority over this channel, Millers Lake must be deemed a public freshwater lake.
21. The Statute defines a public freshwater lake in section 1 as: "a lake that has been used by the public with the acquiescence of a riparian owner; .... "
22. The key word in the Statute is "acquiescence."
23. The root of acquiescence is acquiesce.
24. Acquiesce is defined by Webster's Seventh New Collegiate
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Dictionary as "to accept or comply tacitly or passively."
25. Orants Dictionary of Law (1983) defines acquiescence as "silent agreement; knowing about an action or occurrence and remaining quietly satisfied about it or, by silence, appearing to be satisfied"
26. After hearing, the administrative law judge found that the Department failed to show that any landowner at any time acquiesced to public use of Millers Lake.
27. Evidence showed that three parties own all the land around Millers Lake: the Waikels, Doyle and Paula Acres, and Dan and Sara Carmona.
28. All parties have posted their property as "no trespassing" and none allow use of the lake without permission.
29. The Department established that the Acres allowed friends to use the lake, and once allowed a disabled fisherman to cut a hole in the ice to fish.
30. It was also established that Mr. Acres' father ran a boat rental business on the lake many years ago.
31. At that time, Mr. Acres' father was a riparian owner.
32. Acres only allowed use of the lake in conjunction with the rental of a boat.
33. None of the above public uses shows any acquiescence by any riparian owner.
34. The gist of the testimony was that no one is or has been allowed on the lake without some sort of permission.
35. Certainly, individuals have probably used the lake without permission, but there is not evidence that any riparian owner has allowed such behavior.
36. The Commission, at its January 1992 meeting, remanded this case for further deliberation as to the meaning of the word "acquiescence", and the question of which party has the burden of showing the occurrence or lack therefore, of acquiescence for use of Millers Lake.
37. Both parties briefed the above issues on April 3, 1992.
38. The parties agreed that the administrative law judge's definition of the word acquiescence was reasonable.
39. However, the Department maintains that the administrative law judge's Finding 26 is incorrect, because even if one riparian owner gave permission to use the lake, the others must have "acquiesced" when they saw the invitees using the water.
40. This position is incorrect because once the invitee had the permission of a riparian owner to use the waters of Millers Lake, the other riparian owners lost their right to order the invitee off the lake.
41. One cannot acquiesce in a matter if one has no authority to tender an objection.
42. Case law is well settled in Indiana (See Bath v. Courts, 459 N.E.2d 72 (Ind. App. 3 Dist., 1984)) that a riparian owner's exercise of control over the waters of a lake is limited to those acts which do not interfere with rightful uses of the lake by others. (Bath at 76.)
43. Under Bath, a riparian owner would have no authority to order an invitee off the lake who was rightfully there with the permission of another riparian owner.
44. If there exists no right to evict, there can be no acquiescence.
45. The Department argued at the January 1992 Commission meeting that the burden should be placed on the applicant to show that no acquiescence occurred.
46. The administrative law judge had previously found that the Department must prove it has subject matter jurisdiction before it can regulate that subject matter.
47. The Department cited two contested administrative decisions of the Department of Natural Resources (CADDNAR) of which judicial review were taken.
48. Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. App. 1 Dist, 1991) dealt with the burden of proof in regard to a notice of violation of the Indiana Surface Coal Mining and Reclamation Act (ISMCRA).
49. Peabody is not on point because it does not deal with subject matter jurisdiction.
50. The other case cited is Indiana Department of Natural Resources v. Krantz Bros. Construction, 581 N.E.2d 935 (Ind. App. 1 Dist., 1991).
51. Krantz dealt with what showing was required to gain an exemption from the permitting requirements of ISMCRA.
52. Krantz does not challenge subject matter jurisdiction over coal mining activities, but only whether or not the miner had submitted proper paperwork to qualify for an exemption from permit requirements.
53. Krantz is not on point because ISMCRA starts with the premise that the Department regulates all coal mining activity until shown otherwise.
54. Under the Statute (see Finding 7), the Department is not given the authority to regulate all lakes but only "public freshwater lakes."
55. The Statute then defines what a public freshwater lake is. (See Finding 21)
56. The Statute clearly applies only to public freshwater lakes and not to all lakes.
57. Therefore, when the Department's jurisdiction is challenged, a showing will always be required that the lake is indeed a public freshwater lake.
58. Logically, lakes begin as private lakes and then become public when the required "public use with
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acquiescence of a landowner" is shown.
59. It follows that the burden should be on the Department to demonstrate said use by a preponderance of the evidence because it is attempting to regulate property owned by a private individual.
60. Since a lake is first private and then by meeting some criteria becomes public, it would be illogical to require the owner to show it is still private.
61. The Department cites a Wisconsin case State v. Bleck, Keleny, and Prince, 338 N.W.2d 492 (Wisc. 1983) in an attempt to argue that the burden should be on the Waikels in this case to show a lack of jurisdiction.
62. The cited case actually supports the argument that the burden should be on the Department.
63. On review, the Wisconsin Supreme Court held that" (1) State sufficiently established that lake constituted "navigable waters" for purposes of its jurisdiction under statute prohibiting construction of structure on navigable water .... (Bleck at 492)
64. The above cited holding indicates that the state of Wisconsin was required to show jurisdiction over the subject matter prior to denying permit to construct ski jump.
65. The Department carries the same burden in regard to regulation of Millers Lake. 66. In the instant case the Department has failed to meet that burden.