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Indiana Natural Resources Commission

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Recent Caddnar Decisions (January 28, 2014)

Rice v. Weatherford, 13 CADDNAR 220 (2013)
For consideration is a riparian rights dispute on Big Barbee Lake in Kosciusko County.  The decision applied NRC Information Bulletin #56.  Also, riparian rights were found not to include a guarantee that an area will be suitable for swimming or other recreational use.    Administrative Cause No. 13-135W

Philbeck v. Collins & Altman, 13 CADDNAR 219 (2013)
For consideration is summary judgment in a proceeding under the Timber Buyer Act for land in Wabash County.  The administrative law judge found hauling logs from a timber harvest was not, in itself, sufficient to establish liability.  The trucker who hauled the logs was dismissed as a party.    Administrative Cause No. 13-063F

Collins v. Town of Ogden Dunes (Stay), 13 CADDNAR 214 (2013)
For consideration is a request for a stay of effectiveness of a special purpose deer control permit in Porter County.  Following a preliminary hearing on the stay, the DNR moved for involuntary dismissal under TR 41(B), and the Town joined the motion.  The administrative law judge granted the motion, denied the stay request, and approved the disposition for judicial review. Administrative Cause No. 13-195D

Branham v. Elkins, Jr., et al., 13 CADDNAR 208 (2013)
Under consideration was the liability of a timber grower to an adjacent landowner after the timber buyer with whom the timber grower had contracted unlawfully entered onto the adjacent landowner’s property and wrongfully harvested timber.  The adjacent landowner originally initiated the proceeding against the timber buyer, the timber buyer’s surety and the timber grower; however, prior to the commencement of the administrative hearing the adjacent landowner, the timber buyer and surety company had entered into an agreed settlement. Administrative Cause No. 10-058F

Gaerte v. DNR & Neal, 13 CADDNAR 203 (2013)
For consideration were a neighbor’s objections to issuance of a group pier license on Big Chapman Lake, Kosciusko County.  Because the neighbor had the burden of proof, he incurred the costs of a land survey to demonstrate harm.  Finding the objections meritorious, the neighbor was reimbursed for the costs.  The neighbor also sought attorney fees.  The administrative law judge found attorney fees could be awarded for obdurate behavior, but the facts did not support an award.  Administrative Cause No. 12-178W

McClure v. Fidelity & Deposit, 13 CADDNAR 201 (2013)
On summary judgment, a surety was required to forfeit a timber buyer’s bond to the benefit of landowners. In another administrative proceeding previously decided by the Commission, as well as in a criminal action, the timber buyer was found responsible for an unlawful and uncompensated harvest of the landowners’ timber. Administrative Cause No. 13-084F

Markland v. Swistek d/b/a Crack of Dawn Hunt Club, 13 CADDNAR 194 (2013)
For consideration were objections by a neighboring landowner to DNR’s issuance of the initial and the next year’s renewal permit for a shooting preserve in Jasper County. The neighbor was found to have standing to seek administrative review and to have the burden of proof. Technical requirements for the permits were satisfied, but Commission rule authority in IC 14-22-2-6 to protect the “welfare of the people” not exercised. The Claimant asserted unsuccessfully the shooting preserve was a “nuisance.” Jasper County can require zoning for a shooting preserve, but proper zoning is not a condition precedent to DNR permitting. With modest adjustments, the permits were affirmed. Distinct from this final agency action, the AOPA Committee recommended the Advisory Council consider a nonrule policy document for the welfare of the people. Administrative Cause Nos. 11-171D and 12-125D.

Allen v. LaSalle Application of 312 IAC 11-3-2, 13 CADDNAR 191 (2013)
A matter of first impression was the consideration of 312 IAC 11-3-2. If a petition for administrative review is received for a pier placed under a general license, after the later of the expiration of 90 days or January 1 of the following year, the parties must remove and refrain from returning a structure to the lake until a final agency action. An administrative law judge may modify these requirements, but the burden of proof is upon a party seeking modification. Administrative Cause No. 12-176W

Day and Schramm v. McCulloch & DNR, 13 CADDNAR 184 (2013)
Res judicata and collateral estoppel precluded a license applicant from causing modification of a previous delineation of riparian zones on Jimmerson Lake, a public freshwater lake in Steuben County. Approval by the DNR of a new delineation was reversed. Administrative Cause No. 12-109W

Ogden (Remand) v. DNR, 13 CADDNAR 182 (2013)
For consideration was the Department’s denial of Ogden’s application for a wild animal possession permit under 312 IAC 9-11-7. Ogden applied for the permit to facilitate her continued possession of an orphaned raccoon she obtained on May 20, 2010, a time outside the lawful season for taking raccoons. Because Ogden had not obtained the raccoon lawfully, the Department’s denial of Ogden’s application was affirmed. Administrative Cause No. 10-135D