ORDER
[NOTE: THE NRC DECISION WAS REVERSED ON JUDICIAL REVIEW IN THE KOSCIUSKO CIRCUIT COURT (43C01-9506-MI-539). THE COURT'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ARE ATTACHED. THE DECISION OF THE KOSCIUSKO CIRCUIT COURT WAS AFFIRMED ON APPEAL IN INDIANA DEPARTMENT OF NATURAL RESOURCES, v. TOWN OF SYRACUSE, ET AL., IND.APP., 686 N.E2D 410 (1997).]
Summary judgment is rendered in favor of the Department of Natural Resources and against the Town of Syracuse, Matt Vignault as Town Manager, Jeanette Causey, and Earl Grove. A permit must be obtained by the Town of Syracuse for the placement of any pier at the lakeward extension of Benton Street within Syracuse Lake. In addition, the Natural Resources Commission and its Administrative Law Judge retain jurisdiction over this proceeding until August 1, 1995 or until a party takes judicial review of a final order, whichever occurs first.
FINDINGS OF FACT
1. On July 8, 1994, the Department of Natural Resources (the "Department') filed a "Complaint for the Issuance of a Notice of Violation and the Imposition of Penalties" against the Town of Syracuse and Matt Vigneault as its Town Manager (the "town") and against Jeanette Causey ("Causey"). Filing this complaint initiated a proceeding which is governed by IC 4-21.5 and sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA".
2. At issue was a contention by the Department that a permit was required from the Town, under IC 13-2-11.1 and 310 IAC 6-2, for a pier placed along the shoreline of Syracuse lake in Kosciusko County. Causey is the person who has exercised dominion over the pier.
3. On August 30, 1994, the Department filed a complaint against Earl Grove ("Grove") for another pier similarly situated.
4. The Causey pier and the Grove pier are collectively referred to as the "subject piers."
5. During a prehearing conference held on October 18, 1994, the two proceedings were, by agreement of the parties, consolidated within Administrative Cause Number 94-200W.
6. The Natural Resources Commission (the "Commission") is the "ultimate authority" for the consolidated proceeding under the AOPA as provided by IC 14-3-3-21(a).
7. The Department, the Town, Causey, and Grove are the parties to this proceeding. The Commission has jurisdiction over the person of each of the parties.
8. Syracuse Lake is a "public freshwater lake" as defined by IC 13-2-11.1-1 and 310 IAC 6-2-10.
9. More particularly, the subject piers have been located within Syracuse Lake at the termination of Benton Street, a plotted public street owned and maintained by the Town.
10. The Town has riparian rights with respect to streets, including Benton Street, which terminates at the water's edge of Syracuse Lake. Landowners adjoining those streets may not claim exclusive riparian rights upon a claim of ownership of the underlying fee to a street, excluding members of the public from access to the lake, and may not bar the Town from erecting a pier into the lake from the end of the street. [Order, (December 6, 1994), Ginger E. Abbs, et al. v. The Town of Syracuse, et al., Kosciusko Circuit Court, 43C01-9404-CP-310.]
11. The Town is the riparian owner where the subject piers have been located.
12. The subject piers are temporary piers which have been placed in Syracuse Lake off Benton Street each season. [Stipulation of Facts entered by the parties on March 22, 1995.]
13. The subject piers have been placed in the same location on Syracuse Lake in seasons prior to the adoption of 310 IAC 6-2-14 and 310 IAC 6-2-23. [March 22, 1994 Stipulations]. The Grove pier has been placed on the north side of Benton Street and the Causey pier on the south side. The Grove family has placed its pier since at least 1983 and the Causey family since 1989. [Affidavit of Jeanette Causey dated April 10, 1995 and Affidavit of Partricia Bitner dated March 23, 1995.]
14. The Town has never installed, maintained, repaired, or otherwise exercised control over the subject piers. [Affidavit of Kenneth D. Johnson dated April 13, 1995.]
15. Each of the subject piers is built of wood, is approximately four feet wide, extends approximately 72 feet into Syracuse Lake, is anchored into the bed of Syracuse Lake by galvanized auger posts, and rests on the shoreline of Syracuse Lake. [March 22, 1995 Stipulations.]
16. When the subject piers were placed in Syracuse Lake during the 1994 season, the Department did not declare the
piers to be a hazard to safety or a nuisance. [March 22, 1995 Stipulations.]
17. As provided in IC 13-2-11.1-3(a), "No person may change. . .the shoreline of a public freshwater lake by excavating, filling in, or 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
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securing a written permit issued by the [D]epartment." This statutory section was enacted in 1982 by P.L. 103, and the section essentially recodified language formerly codified at IC 13-2-14. P.L. 103 became effective February 24, 1982.
18. As provided in IC 13-2-11.1-5, "[u]pon application by the owner of land abutting a public freshwater lake, the [D]epartment may issue a permit to change the shoreline or alter the bed of a public freshwater lake after investigating the merits of a written application. . . ." This section was also enacted by P.L. 103 and became effective February 24, 1982. Section 5 essentially recodified IC 13-2-11-2.
19. A pier which qualifies as a temporary structure may be placed on a public freshwater lake without a "written permit" where nine conditions are satisfied. 310 IAC 6-2-14(a). In effect, this rule section creates a "statewide permit" or regulatory "exemption" from the requirements IC 13-2-11.1-3 and IC 13-2-11.1-5 for qualifying structures.
20. Authority for the adoption of 310 IAC 6-2-14 is provided by IC 14-3-3-21. Most notably, 21(b) provides in pertinent part that the Commission "may adopt rules to exempt an activity from licensing under IC 13-2. . . if the activity poses no more than a minimal potential for harm."
21. In order to qualify for the exemption provided by 310 IAC 6-2-14, a person must satisfy each of nine conditions. Among these conditions, the person must be a riparian owner and the construction activity must not be objected to by another affected person.
22. Neither Causey nor Grove can ever qualify for the exemption provided by 310 IAC 6-2-14 because they are not riparian owners.
23. Through an agent, Ginger Abbs ("Abbs") has filed objections with the Department concerning the placement of the subject piers. Abbs is an affected landowner because she owns property adjacent to site of the subject piers.
24. As a consequence of the Abbs objection, even though it is the riparian owner, the Town cannot qualify for the exemption provided by 310 IAC 6-2-14.
25. As provided in 310 IAC 6-2-23, a structure "lawfully placed before the effective date of the section of" 310 IAC 6-2, "which would cause a structure. . . to be unlawful if placed after that date, is a lawful nonconforming use."
26. Because 310 IAC 6-2-14 creates an exemption from permitting rather than a regulatory standard, however, 310 IAC 6-2-23 does not apply to section 14. Indeed, although 310 IAC 6-2 has application to construction activities within public freshwater lakes, the rule is generally not helpful to the disposition of this proceeding. The governing standards are instead those set forth by statute at IC 13-2-11.5-3(a) and IC 13-2-11.5-5.
27. More specifically, IC 13-2-11.1-5 must again be referenced. Upon application by the owner of land abutting a public freshwater lake, the [D]epartment may issue a permit to change the shoreline or alter the bed of a public freshwater lake after investigating the merits of a written application.
28. The language of IC 13-2-11.1-5 is unmistakable from the perspective of who has standing to obtain a permit. In order to qualify under this section, the applicant must be "the owner of land abutting a public freshwater lake." In other words, the applicant must be a riparian owner.[FOOTNOTE 1] Here the Town is the riparian owner. If a permit is required by IC 13-2-11.1-5, only the Town can qualify as the applicant.
29. The language of IC 13-2-11.1-5 also establishes, from a substantive perspective, what activities trigger the permitting requirement. A permit is required whether either (1) the shoreline is changed; or, (2) the lakebed is altered.
30. The subject piers would not "change the shoreline" of Syracuse Lake.
31. The issue is reduced, then, to whether placement of the subject piers would "alter the bed" of the lake.
32. As constructed, the subject piers are anchored into the bed of Syracuse Lake by galvanized auger posts located as far as 72 feet from the shoreline. Although presumably not a profound change to the bed of a public freshwater lake, the placement of galvanized auger posts is adequate to constitute a lakebed alteration.[FOOTNOTE 2]
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33. Since the exemption accorded by 310 IAC 6-2-14 does not apply, a permit is required by IC 13-2-11.1-5 for the placement of the subject piers. By the unmistakable language of IC 13-2-11.1-5, only the Town is qualified as a riparian owner to seek the permit.
34. One other issue was raised previously by the Town and addressed in the "Interlocutory Order of Partial Summary Judgment" entered on June 17, 1994 in Administrative Cause Number 94-122W. That issue is reconsidered here for purposes of completeness.
35. The Town urged that it has "exclusive jurisdiction" over the "portion of Syracuse Lake in which the Town possesses riparian right." The argument continues that "[b]ecause the Town has exclusive jurisdiction over this portion of Syracuse Lake, arising from and commensurate with its exclusive jurisdiction over Benton Street, the DNR [Department} has no authority to require the Town to obtain a Permit" for subject piers. The argument is founded upon IC 36-1-3-9.
36. However, IC 36-1-3-9 is directed to the relationships between a county and a municipality and between municipalities. The section delineates the rights among local units of government and not between the state and a local unit.
37. Being a municipality, the Town is a "unit" as defined by IC 36-1-2-23, and powers specifically withheld from a unit are set forth in IC 36-1-3-8. Among the powers specifically withheld from a unit is the "power to regulate conduct that is regulated by a state agency, except as expressly granted by statute." IC 36-1-3-8(a)(7). This section, and not IC 36-1-3-9, delineates the relationship between state agencies and units (including municipalities).
38. Since the Department regulates conduct within a public freshwater lake pursuant to IC 13-2-11.1, the Town is prohibited by IC 36-1-3-8 from seeking to exercise authority over Syracuse Lake which is inconsistent with IC 13-2-11.1. This conclusion is also harmonious with Natural Resources Comm'n v. Porter Drainage Bd., 1980 Ind. App., 555 N.E.2d 1387. The Court of Appeals there held that where state and local statutes could be viewed as conflicting, the state environmental considerations prevail over local concerns. The purposes of IC 13-2-11.1 are to provide for environmental, safety, and aesthetic protections. Although no conflict is believed to exist between IC 13-2-11.1 and IC 36-1-3-8 with respect to the waters of Syracuse Lake, if there is a conflict, IC 13-2-11.1 prevails.
39. The Commission has jurisdiction over the subject matter of this proceeding.
40. No material fact exists as to which there is a genuine issue. The Department is entitled to summary judgment in its favor that a permit is required for each of the subject piers and, as the riparian owner, only the Town is qualified under IC 13-2-11.1-5 to apply for a permit.
41. No evidence has been received to support the issuance of a penalty against the Town, Causey, or Grove. The Commission and its Administrative Law Judge should, however, retain jurisdiction of this proceeding until August 1, 1995, or until a party takes judicial review of a final determination, whichever occurs first. A purpose of retained jurisdiction would be to issue a complaint for a notice of violation and to seek the imposition of a charge under IC 14-3-3-22, if any party places an unpermitted pier on Syracuse Lake within the site of this proceeding.
FOOTNOTES
1. The owner of land adjacent to a lake might more properly be termed a "littoral" owner rather than a "riparian" owner. A littoral owner is "[o]f or pertaining to the shore of the sea or of a lake, reservoir or other body of standing water." Riparian ownership is more typically applied to the shoreline of a river or stream. Waters and Water Rights, Vol. 6, The Michier Company (1994). Indiana courts have, however, used "riparian" to apply to properties adjacent both to standing water and moving water. For this reason, 310 IAC 6-2-12 defines a "riparian owner" to include a "littoral owner."
2. The manner for placement of the subject piers is crucial to this finding. Another manner of construction, such as floating piers not affixed to posts within the lakebed, or piers anchored only outside the shoreline of the lake, would not require a permit. Any regulatory structure must ultimately draw a fine line between what does and what does not require a
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permit. The Indiana General Assembly chose to draw that line in terms of what constitutes a shoreline or lakebed alteration. The result, though difficult in a close case, is not unreasonable.
FINDINGS OF FACT
1. Petitioner's Jeanette Causey and Earl Grove seasonally place unpermitted temporary piers into Syracuse Lake.
2. The piers are placed in the lake off of Benton Street, a platted public street in Syracuse, Kosciusko County, Indiana, that terminates at the water's edge of Syracuse Lake.
3. Petitioner, the Town of Syracuse ("Town"), neither owns nor controls the piers at issue.
4. The Town has never installed, maintained, nor repaired these
piers.
5. Despite the Town's lack of ownership or control, the Department of Natural Resources ("DNR") advised the Town by a letter dated January 26, 1994 that the Town was required to obtain a permit for the placement of the Causey pier in Syracuse Lake.
6. On July 8, 1994, a Complaint For The Issuance Of A Notice Of Violation And The Imposition Of Penalties was filed by DNR against the Town and Jeanette Causey. DNR alleged in its Complaint that the Town and Ms. Causey had violated the Lake Preservation Act (I.C. 13-2-11.1) for failing to permit the subject pier.
7. On August 30, 1994, a Complaint For The Issuance Of A Notice Of Violation And the Imposition Of Penalties was filed against the Town and Earl Grove. By this Complaint, DNR further alleged that a second pier had been placed off of the Benton Street easement and that the pier was owned by Earl Grove. Again, DNR alleged that the Town and Mr. Grove violated Indiana law by failing to permit the Grove pier. By agreement of the parties, the Causey and Grove matters were consolidated to serve administrative efficiency.
8. On May 9, 1995, Administrative Law Judge Stephen Lucas filed his Report, Findings of Fact, and Nonfinal Order Of Administrative Law Judge ("ALJ Report") wherein he granted summary judgment in favor of DNR and against all respondents.
9. On May 30, 1995, the Natural Resources Commission ("Commission") issued its Final order affirming, without modification, the ALJ Report.
10. When Benton Street was platted to the water's edge of Syracuse Lake, it included a grant to the public of the riparian right of access to the lake. Included within the riparian rights granted to the public are the rights to access the lake and to establish and use piers, subject to regulation by the appropriate municipal or governmental authority. (See Giner Abbs, et al. v. Town of Syracuse, et al., Cause No. 43C01-9404-CP-310 (Kosciusko Cir. Ct.) (Judgment entered August 23, 1996)).
11. DNR has in the past issued a permit to a non-riparian owner for the placement of a temporary pier. (See Kozon v. Department of Natural Resources, 5 CADDNAR 228 (Cause No. 90-054W, July 3, 1990)).
12. The parties stipulated that the piers at issue rest on poles which are augured into the bed of Syracuse Lake.
13. DNR has admitted that the removal of the poles restores the bed of the lake.
14. The poles of the pier do not require heavy machinery for installation into the lakebed or the use of concrete, as would permanent structures.
15. The Causey and Grove piers do not alter the bed of the lake in any appreciable fashion.
CONCLUSIONS OF LAW
1. The Commission erroneously decided the Town is the only one that may receive a permit for the piers at issue. This decision is contrary to law, arbitrary, and capricious.
2. The regulations promulgated by the Commission at 310 IAC 6-2-14 set forth the conditions under which a permit is not required for a temporary pier. One of these requirements is that the pier owner be a riparian owner. Conversely, if one of these requirements is not satisfied, then a permit for the structure must be obtained from DNR. Thus, if the pier owner is a non-riparian property owner, then a permit is required. DNR has previously argued in favor of issuance of a permit to a non-riparian owner and the Commission affirmed such an issuance. Neither the ALJ nor the Commission made any attempt to distinguish Kozon from the facts of the present case. Thus, the Commission's decision is contrary to prior agency precedent, arbitrary, and capricious.
3. The Commission's determination that the placement of the piers in Syracuse lake was an alteration of the lakebed is arbitrary and capricious, unsupported by substantial evidence, and contrary to law.
4. Neither the Lake Preservation Act nor the regulations define alteration of a lakebed. However, a comparison of the activities which in the past have been deemed "alterations" by the Commission to the manner of installation of the Causey and Grove piers clearly indicates that the temporary placement of these piers does not rise to the level of a lakebed alteration. Prior agency decisions illustrate that the types of alterations for which permits are necessary under the lake Preservation Act are activities that cause more than de minimis temporary changes of the lakebed. (See DeMunck Status of "Weed Machine" Under the Public Freshwater Lake Law, 6 CADDNAR 115 (Cause No. 91-442W, Jan. 13, 1993)).
5. The Causey and Grove piers do not alter the bed of the lake in any appreciable fashion. Therefore, I.C. 13-2-11.1-5 (recodified as I.C. 14-26-2-9) does not prohibit DNR from issuing permits for piers to Jeanette Causey and Earl Grove. For the agency to hold otherwise is arbitrary and capricious, unsupported by substantial evidence, and contrary to law.
6. The imposition of penalties against the Town for the acts of third-persons in installing unpermitted temporary piers is improper. The town never owned, operated, controlled, installed, repaired, or maintained these piers, which have at all times been under the exclusive control of petitioners Causey and Grove.
ORDER
IT IS, THEREFORE, CONSIDERED, ADJUDGED AND DECREED BY THE COURT that the Town of Syracuse's Petition for Judicial Review is hereby granted.
IT IS FURTHER ORDERED that the erroneous findings of fact and/or conclusions of law and order in the ALJ Report, affirmed by the Natural Resources Commission, are set aside.
IT IS FURTHER ORDERED that the ALJ Report is declared null, void, unenforceable, and of no effect with respect to all such errors.
IT IS FURTHER ORDERED that this matter be remanded back to the natural Resources Commission with instructions to enter judgment in favor of the Town and against DNR as to all issues in this action.