CADDNAR Updates
Recent Caddnar Decisions (July 9, 2012)
Meyers Subdivision v. DNR & Kranz, 12 CADDNAR 282 (2011)
For consideration was a dispute concerning riparian usage between the riparian owner and easement holders, as well as matters of agency authority and “takings” claims, for a site along Bass Lake, a public freshwater lake in Starke County. The Starke Circuit Court affirmed on judicial review, and the Indiana Court of Appeals affirmed in a published opinion in June 2012 at 75A03-1112-PL-00577. On September 18, 2012, Kranz sought Petition for Transfer. (Administrative Cause No. 10-093W)
Spaw v. Ashley, 12 CADDNAR 233 (2011)
For consideration was a suite of issues pertaining to riparian usage along a subdivision and within Big Long Lake, a public freshwater lake in LaGrange County. The Allen Circuit Court affirmed on judicial review, and the Indiana Court of Appeals affirmed in a not-for-publication opinion in April 2012 at 02A03-1108-MI-00340. (Administrative Cause No. 09-070W)
Fultz v. Trenmouth, 13 CADDNAR 46 (2012)
For consideration was licensure denial for an underwater beach on Big Turkey Lake, a public freshwater lake in Steuben County. The ALJ determined the area was a “significant wetland” under the rules and was disqualified for underwater beaches. Each portion of an emergent wetland was continuous to others and contained the required 2,500 square feet. Measurements were taken properly in September when the wetland was mature and the lake slightly above its legal elevation. Location of the wetland in a lake inlet, improved as a boat channel, did not disqualify it as a “significant wetland”. (Administrative Cause No. 11-170W)
Neal v. Gaerte, 13 CADDNAR 44 (2012)
The petitioner’s motion to dismiss a complaint was granted for a riparian rights dispute on Big Chapman Lake, a public freshwater lake in Kosciusko County. At the respondent’s request, the dismissal was made with prejudice because of litigation expenses incurred in defending. (Administrative Cause No. 104W)
Crown Point v. DNR & Stillwater of Crown Pt., 13 CADDNAR 42 (2012)
At issue was a DNR NOV and civil penalty assessment against the City of Crown Point alleging unpermitted construction in a floodway. The DNR sought to vacate the NOV and civil penalty assessment because the City was mitigating the site and seeking permits. The ALJ determined whether to pursue an NOV or civil penalty assessment was subject to DNR prosecutorial discretion. Over the objection of intervening homeowners, the vacation was approved and the proceeding dismissed as moot. (Administrative Cause No. 11-036W)
Musgrave v. Squaw Creek Coal & DNR, 12 CADDNAR 192 (2009)
The parties disputed the meanings of key phrases under Indiana SMCRA, including “pollution”, “toxic materials”, and “toxic mine drainage”. The ALJ and Musgrave interpreted the terms broadly to include hazardous waste deposited by Alcoa during mining operations and concluded that those mining operations are having a direct effect upon the fate and migration of those wastes. Consequently, the ALJ determined that the mining was a contributing factor associated with surface and subsurface pollution such that Phase III bond release was improper. The Marion Superior Court reversed on judicial review, and the Indiana Court of Appeals affirmed the reversal in a published opinion at 49A05-1104-MI-104, on the basis the ALJ decision exceeded agency jurisdiction. Musgrave sought transfer to the Supreme Court in April 2012. (Administrative Cause No. 08-034R)
Howard v. DNR & Smith, 13 CADDNAR 36 (2012)
For consideration was the denial of a group-pier permit on Yellow Creek Lake, a public freshwater lake in Kosciusko County, because (1) the applicants did not show notice to all affected person, and (2) riparian rights were contested by other landowners. The notice deficiency was cured through the AOPA proceeding, but the proprietary interests were complex. The NRC’s AOPA Committee found in favor of Howard, and Smith in April 2012 sought judicial review to the Kosciusko Circuit Court in 43C01-1204-MI-44. On July 2, 2012, Court granted Respondents, DNR and Howard's Motion to Dismiss. (Administrative Cause No. 10-206W)
Plymate v. Paton & DNR, 13 CADDNAR 28 (2012)
A neighboring riparian owner sought to preclude off-lake lot owners from placing piers at the junction of a public street and Lake Tippecanoe, a public freshwater lake in Kosciusko County. Applying a 2010 Court of Appeals decision, the off-lake lot owners were ordered to remove the piers. Because the off-lake lot owners had neither riparian rights nor an easement conveying riparian rights, they had no right to place piers. (Administrative Cause No. 11-089W)
Shaul v. DNR & Bailey, 13 CADDNAR 24 (2012)
For consideration was the denial of a license to fill a manmade channel of Sechrist Lake, a public freshwater lake in Kosciusko County. DNR disapproval was affirmed on each of three grounds: (1) Despite applicant contentions the channel was a private waterway, the channel was part of Sechrist Lake and public. Filling the channel would appropriate public water for private use. (2) Filling the channel would impermissibly give the channel to a riparian owner to the exclusion of another riparian owner and the public. (3) The applicant’s neighbor also had riparian rights to the channel and did not consent to filling. (Administrative Cause No. 11-173W)
Howe & Schwegel v. Hidden Valley LPOA and DNR, 13 CADDNAR 20 (2012)
Individual residents of Hidden Valley Lake sought administrative review of the DNR’s issuance of a Special Purpose Deer Control Permit that allowed the Hidden Valley Lake Property Owners Association to take up to 120 deer from within the community. The permit was affirmed upon evidence that the property owners association was an appropriate person to receive the permit and that damage within the community was attributable to excessive deer populations. (Administrative Cause No. 12-011D)
Peterson & Fultz v. DNR, 13 CADDNAR 19 (2012)
For consideration was licensure denial for an “underwater beach” in Lake Pleasant, a public freshwater lake in Steuben County. Rules prohibit DNR from authorizing an underwater beach next to a “natural shoreline”. DNR biologists urged the absence within 250 feet of permanent structures along the shoreline qualified a site as a natural shoreline, and the parties did not dispute the absence of such permanent structures. A DNR engineer testified a shoreline could be altered by dredging or the placement of lawful fill along a shoreline, but the evidence did not support a finding of dredging or fill along the shoreline. Denial of the license application was affirmed. (Administrative Cause No. 11-134W)
