The emergency order issued by the Director of the Department of Natural Resources on June 29, 1994, imposing an idle zone in the first embayment on the western shoreline of Lake Freeman north of the Oakdale Dam is hereby modified as follows:
(a) The area between the large island and the small island should be marked as a special danger zone;
(b) The embayment shall have a maximum speed limit of ten (10) miles per hour; and
(c) The ten (10) mile per hour zone shall run west of a line drawn due south from the northeast corner of the shoreline of the embayment to the small island and then at a thirty degree (30 degree) angle west of south from the southeast corner of the small island to the southern shore of the embayment.
This emergency order expires upon issuance of a subsequent order by the Director of the Department of Natural Resources or by operation of IC 4-21.5-4-5, which ever comes first.
FINDINGS OF FACT
1. Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency charged with the responsibility of regulating the use of public waters within the boundaries of the state.
3. IC 4-21.5, IC 14-1 , and 310 IAC 2 apply to these proceedings.
4. On June 29, 1994, the Director of the DNR issued an emergency order ("Order") (Exhibit I) imposing an idle zone on Lake Freeman" . . . in that area known as the Snow Ditch Embayment.[FOOTNOTE 1]
5. On July 12, 1994, Carolyn Mikesell ("Mikesell") filed a timely petition for administrative review pursuant to IC 4-21.5.
6. In addition to the substantive issues involving the nature and extent of the restrictions which could or should be imposed, if any, the parties have directly or indirectly raised a number of procedural issues which need to be discussed. Those issues are as follows:
a. The constitutionality of IC 4-21.5-4 at least as it relates to the issuance of emergency orders by the executive branch of government when the order is clearly legislative in nature.
b. Whether or not an emergency order of this type is authorized by statute.
c. Which party has the burden of going forward if a hearing is held on an emergency order?
d. Is the administrative law judge or the Natural Resources Commission ("NRC") the ultimate authority within the meaning of IC 4-21.5 with respect to decisions rendered after a hearing on an emergency order?
7. As to a ruling on the constitutionality of statutes authorizing emergency orders, the administrative law judge is without the authority to declare an act of the legislature unconstitutional. See Sunshine Promotions, Inc. v. Ridlen, 483 N.E.2d 288 (Ind. App. 1983) in which the Court of Appeals held that an administrative law judge cannot declare an act of the legislature unconstitutional, and that this right is reserved to the judicial branch of government pursuant to IC 34-4-10, the Declaratory Judgment Act.
8. As to whether or not the DNR is authorized to issue an emergency order governing boat usage on public waters, IC 4-21.5-4, IC 14-1-1, and 310 IAC 2-25 must be examined. Unfortunately, no published appellate court decisions are available to assist in this examination.
9. IC 14-1-1-55(a)(3) requires the DNR to carry out and enforce the provisions of the watercraft chapter, IC 14-1-1.
10. IC 14-1-1-56 authorizes the DNR to adopt rules dealing with the safe operation of watercraft. The operative word is "may". While regulation via the rule making procedure may be the preferred method of regulation, it is not the required method.
11. 310 IAC 2-25-2 authorizes the Director of the DNR to temporarily order public waters closed to watercraft operations or impose other restrictions.
12. IC 4-21.5-4-2 authorized an agency subject to IC 4-21.5 to conduct proceedings if an emergency exists or a specific statute authorizes the agency to issue temporary orders.
13. No specific statute exists authorizing the DNR to issue a temporary order.
14. 310 IAC 2-25 does not exceed the agency's statutory authority. Even though IC 14-1 does not authorize emergency actions (except in conformance with IC 4-22), IC 4-21.5-4-1(a) does authorize the DNR to proceed with an emergency order if an emergency exists.
15. As to the issue of who has the burden of presenting evidence first, IC 4-21.5 is silent.
16. The
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DNR contends that the burden of going forward should be on Mikesell as it is she who is challenging the agency action.
17. In the absence of any statutory or appellate court language, the order of presentation of evidence is within the sound discretion of the court.
18. The administrative law judge's ruling here requiring the DNR to proceed first was made for several reasons. First and foremost, the administrative law judge found that it was necessary for an orderly presentation of the case. As a practical matter, it is unrealistic to expect Mikesell to make a coherent presentation showing there is no emergency until the DNR presents evidence on why there is a problem. Requiring Mikesell to guess as to the exact reasons for the order and present evidence dealing with all possible theories is not an efficient use of court time. Secondly, there is no particularly onerous burden placed on the DNR in requiring it to put on sworn testimony as to what was done and why it was done before requiring Mikesell to proceed. Finally, the administrative law judge considered the wording of IC 4-21.5-4-2. This section of the Indiana Code authorizes the DNR to proceed in one of two ways when issuing emergency orders. The first way, used in this case, states that it can be issued without notice or an evidentiary hearing. The second way involves issuance after a hearing in front of an administrative law judge. The second method would clearly place the burden of going forward on the DNR. The DNR should not be allowed to avoid this responsibility merely by choosing option one.
19. Since the order is an emergency order, to have any value, a hearing held under IC 4-21.5 must arrive at a conclusion as quickly as possible.
20. IC 4-21.5-4-4 specifies that hearings are to be set as quickly as practicable and that the administrative law judge "should determine whether the order under this chapter should be voided, terminated, modified, stayed, or continued."
21. IC 4-21.5-4-4 thus requires the administrative law judge to assume the role of ultimate authority for the agency.
22. The nature of an administrative hearing conducted pursuant to IC 4-21.5 has recently been clarified by the Indiana Supreme Court. In Indiana Department of Natural Resources v. United Refuse Company, Inc., 615 N.E.2d 100 (1993), the Supreme Court held that a hearing under IC 4-21.5 is a de novo hearing and the administrative law judge functions as a trial court sitting without a jury. The administrative law judge must make his findings based on sworn testimony and documents properly presented at the hearing.[FOOTNOTE 2]
23. Paragraph 22 of these findings is important in that if the administrative law judge were merely to review the text of the order as to whether or not it is legally sufficient, it would fail the test.
24. The order (Exhibit I) does not state with sufficient specificity where the idle zone should begin. It leaves the placement of the marking buoys solely to the discretion of the person placing the markers.
25. while a legal description of the area is not necessary, there needs to be some site specific description of the area where the speed zone is to begin.
26. The mouth of the embayment has two islands of note which affect the use of the water in the area. For purposes of this decision, they will be referred to as the "big" island which is approximately 100 feet (Exhibit 1) or less from the north shoreline of the embayment and the "little" island which is approximately 250 feet from the big island and 500 feet from the south shoreline of the embayment.
27. The west end of the embayment starts at the end of a creek called Snow Ditch and is extremely narrow for the first 500 feet. Boating activities at the west end are automatically restricted to 10 mph by IC 14-1-129.
28. The embayment slowly widens to a width of approximately 500 feet just west of the west end of the big island.
29. Absent the emergency order, there are areas of the embayment with no speed restrictions.
30. The embayment widens rapidly as measurements are taken east of the location described in paragraph 28.
31. The total length of the embayment appears to be 1,700 to 2,000 feet. (Exhibit 1)
32. The embayment shoreline has a number of residences and a trailer park near the shoreline.
33. Lake Freeman is a high use boating lake in the summer months, particularly on weekends.
34. Boat traffic has increased on Lake Freeman and is still increasing, particularly in the use of "waver runners" or personal watercraft.
35. The area of the embayment between big island and the little island (approximately 250 feet) consists of a series of stumps just below the water level which are dangerous to boats and boaters.
36. The area between the two islands should be marked so as to restrict boating and warn boaters.
37. The evidence presented by the DNR,
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obtained from personal observations of conservation officers assigned to the area and having a number of years of lake experience but not presented as a part of any formal study, shows that boat traffic has increased in the last two years and personal watercraft usage has increased dramatically during the same time.
38. Boats using the lake include about any type of non-commercial watercraft imaginable. Some can travel in excess of 40 mph. Water skiing is very popular in the area.
39. The waters of the lake near the Oakdale dam are relatively quiet and particularly good for skiing.
40. To some degree, the islands can restrict the vision of boats leaving the embayment of the main body of the lake and of boats on the lake traveling near the embayment.
41. As boats (particularly ski boats) on the lake approach the dam at high speeds, it is easy to veer right near the small island and enter the embayment area to turn around. After Memorial Day, both officers noticed situations in the area of the islands which caused concern.
42. The imposition of the emergency order has slowed traffic near the dam and cut the traffic in the embayment to mainly residents and fishermen.
43. Over the years, not only has boat traffic increased, but boats have generally become bigger and faster.
44. The DNR had no record of an accident occurring in the embayment. Its action was based on the potential for a serious accident.
45. The Director of Law Enforcement, who has 31 years experience as a conservation officer, observed that the embayment is too small to allow unrestricted speed.
46. The Claimant resides on the shoreline of the embayment fairly close to the west end of the island. The Claimant has spent time in the embayment area since 1965.
47. Mikesell's observation on boating in the area is that not many boats from the main lake enter the embayment area near her house since the bay begins to constrict at that point. Boats do not remain in the embayment area for any length of time.
48. Mikesell is also concerned that residents cannot pull children (and grandchildren) on sleds or inner tubes in the relative quiet and safety of the bay. Also, since the idle zone was imposed, boats now come and park for their parties.
49. All witnesses agreed that a boat "at plane" is much more maneuverable and has better visibility than a boat traveling at lower speed with the nose up.
50. Both witnesses for the Claimant showed great concern for boats attempting to enter the main portion of the lake from an idle speed.
51. Mikesell did not contend that there should be no boating restrictions in the area. She agreed that restrictions are needed in narrow areas.
52. Reduced speeds do make the embayment safer for the children using the water for rafting and floating.
53. The DNR has shown that the particular configuration of this embayment (width, population, and islands) does' not lend itself to wide open, anything goes boating.
54. In its desire for safety, however, the DNR may have engaged in over kill.
55. The evidence available to the administrative law judge shows that trying to enter the flow of traffic on the lake from idle speed is almost as dangerous as allowing unrestricted boat travel in the embayment, and that virtually all the residents on the shoreline of the embayment engage in boating of some sort.
56. The testimony also showed that some constructive use of the embayment can be made at speeds in the vicinity of 10 mph.
57. A boat speed of 10 mph at the buoys would decrease the problem of getting up to speed and merging with traffic.
58. IC 14-1-1-29 provides for a 10 mph speed limit near the shoreline in even the most densely populated areas of lakes.
59. Because of the fact that the embayment is fairly narrow, a good portion of the surface area is subject to the above 10 mph limit anyway.
60. The DNR emergency order should be modified to provide for a 10 mph speed limit in the embayment.
61. Remaining to be decided is the exact location of the speed restriction.
62. While the emergency order was not specific in its location of the buoys, the defacto placement of the buoys apparently runs from the northwest corner o-l- the shoreline of the embayment past the big island, on past the small island, and striking the southern shore of the lake near the Oakdale dam at a point almost due south of the point of origin. See Exhibit D.[FOOTNOTE 3]
63. The purposes served by the placement of the buoys are to prevent high speed traffic from entering the embayment area and prevent high speed traffic from exiting the area whale skiers and boaters are using the lake.
64. The prime area of concern is the area from the small island to the south shoreline of the lake.
65. There needs to be some area provided for skiers to swing around and go parallel to the Oakdale dam as they approach the dam going south.
66. There needs to be an
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area where boats exiting the embayment have good visibility and can get up to speed after leaving the restricted area.
67. From looking at Exhibits C and D it would appear as though placement of the buoys at a point commencing on the southeast corner of the small island and progressing at a 30 degree angle to the west of south until reaching the shoreline of Lake Freeman should provide for safe entry and exit from the lake at the point where the channel becomes narrow and allow unrestricted boating in the wider area.
FOOTNOTES
1. The "Snow Ditch" terminology has been used by the department. The residents claim that name is incorrect. The maps introduced into evidence do not call the embayment "Snow Ditch". For purposes of this decision, the area will be called the "embayment" and refers to the first embayment north of the Oakdale Dam an the west side of Lake Freeman.
2. This is yet another reason why the DNR should have the responsibility of going forward with the evidence.
3. Exhibit C was also introduced into evidence as an accurate representation of the placement of the buoys. It shows the buoys in a different configuration in that it shows the idle zone running at an angle from the south central edge of the small island south by southwest to the shoreline