Application FW-16,885 is approved and a Certificate of Approval is granted.
Findings of Fact
1. On April 22, l996, R. Jack Krovocheck (the "Claimant") filed with the division of hearings of the Natural Resources Commission (NRC) a petition for review of the Department of Natural Resources (DNR) approval of Application FW-16,885.
2. The applicant was identified as the City of Lawrenceburg (the "City") and its development partner the Indiana Gaming Company, L.P. (Indiana Gaming) was granted Respondent Intervenor status on May 8, l996, subject to objection by any party. No such objection was made.
3. Tim Rider was assigned by the NRC as administrative law judge (ALJ) for this proceeding.
4. IC 4-21.5, IC 14-10-2, IC 14-28-1, IC 14-29-1, 310 IAC 2, 310 IAC 6 and 312 IAC 2 apply to this proceeding. There is subject matter jurisdiction and jurisdiction over the persons of Mr. Krovocheck, the City, Indiana Gaming and DNR (collectively, the "Parties").
5. The DNR is an agency as defined in IC 4-21.5-1-3.
6. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
7. Pursuant to IC 14-28-1 and IC 14-10-2-3, the NRC is the ultimate authority for this type of proceeding.
8. In his petition the Claimant alleges that he owns some of the property involved in the Cities' application and that property ownership is a DNR requirement for issuance of this type permit.
9. The ALJ declined to take up any ownership dispute because the ownership of the property is currently being litigated before the United States District Court for the Southern District of Indiana.
10. The respondents then offered the theory that the City held an easement in the form of a public right-of-way due to the presence of a public street (Walnut Street) which dissects the property and that such an easement meets the DNR requirement.
11. The parties stipulated to the location of the property in question on a survey plat of the City of Lawrenceburg dated May 19, l996.
12. Indiana Gaming filed a motion for summary judgment on June 19, l996, maintaining that the presence of the easement allowed for the approval of the application in question.
13. The Claimant responded on July 11, l996, claiming that material facts were in dispute as the City had abandoned its easement by certain actions described below.
14. On July 19, l996, the DNR filed a response to the Claimant's filing indicating it issued the permit because it felt that the City had a legal right to utilize its easement.
15. The ALJ conducted an oral argument/status conference on August 16, l996, at which all parties were represented.
16. At that proceeding the City filed an affidavit executed by the Mayor of Lawrenceburg, Mr. Melvin Gabbard. The ALJ accepted the filing because the Claimant had no objection.
17. After the oral argument the parties stipulated to the following material facts:
a. There is a public right of way which runs with Walnut Street to the Ohio River.
b. A railroad track(s) has been built across the right of way and no crossing guard/warning is present.
c. A levee has been built along the Ohio River to protect the City from flooding and the present levee has been in place since about 1937.
d. A small road still exists over/around the levee which would allow a vehicle to reach the river side.
18. The parties asked the ALJ to examine the above material facts to determine whether or not the City has abandoned its easement.
19. Since the Claimant admits that the City does possess the easement the burden is on the Claimant to present facts to the ALJ which would prove the easement has been abandoned.
20. The only evidence of abandonment presented is contained in finding 17 above. Such evidence being the levee and the unprotected railroad crossing.
21. The legal definition of the word "Abandonment" can be found in Black's Law Dictionary at page 2-4 (5th Edition 1979).
22. The definition is quite long and refers to many different circumstances. The definition begins with "The surrender, relinquishment, disclaimer, or cession of property
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or of rights. Voluntary relinquishment of all right, title, claim or possession, with the intent of not reclaiming it."
23. At page 2 the definition goes on to emphasize that "the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. (Emphasis added) (citing Roebuck v. Mecosta County Road Commission, 59 Mich.App. 128, 229 N.W.2d 343, 345).
24. Mr. Krovocheck would have the ALJ declare the easement abandoned because the City granted right of ways to the now Central Railroad Company for railroad tracks and to the Lawrenceburg Conservancy District for construction and maintenance of a levee.
25. The granting of the right of ways is certainly not abandonment. In fact what is shown is that the City used its easement to benefit its citizens by furthering commerce and by protection from floodwaters.
26. In addition the parties all agreed that Walnut Street access to the Ohio River was not terminated by either the railroad tracks (street passes over) or the levee (street continues over the levee to the river side).
27. The material facts clearly show that the City did not abandon the easement in question.
28. Accordingly, Indiana Gaming's Motion for Summary Judgment is granted.