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Recent Caddnar Decisions (as of March 30, 2017)

Wallace v. Stone, 14 CADDNAR 140 (2017)

For consideration is a riparian rights dispute on Crooked Lake in Steuben County. Wallace, a riparian owner, claims encroachment by Stone, an off lake lot owner. Stone fails: (1) to show riparian ownership of the alley and the shoreline terminus of the alley appurtenant to Crooked Lake; (2) in his prescriptive easement claim by failure to prove each of four required elements, properly viewed in the context of recreational waters that are more likely to be permissive than adverse; (3) to show an exclusive use of the alley and the shoreline terminus of the alley appurtenant to Crooked Lake; and (4) to show the required duration of use necessary to support a claim for a prescriptive easement. Wallace also claims encroachment by Summers, a riparian owner of a lot adjacent to the alley located between the lot owned by Wallace and the lot owned by Summers. The property lines adjacent to either side of the alley are extended consistent with the Third Principle in Information Bulletin #56.  Each riparian owner shall maintain five feet of clearance from each riparian zone boundary to aid in public safety and to preserve the public trust.  Administrative Cause No. 16-052W

Scheiber v. Mast, 14 CADDNAR 133 (2016)

Scheibers, riparian owners, on Knapp Lake in Noble County, claim encroachment by the Masts, off lake lot owners. Masts fail to show any riparian ownership and fail in their prescriptive easement claim in that their shoreline use is permissive, not adverse. The extension of a pier by the Masts interferes with the public use right to the shoreline, which is shared with other members of the public.  Administrative Cause No. 15-137W

Moss v. DNR (Remand), 14 CADDNAR 128 (2016)

On judicial review the Commission’s decision in Moss v. DNR, 13 CADDNAR 259 (2014) (“Moss I”) was affirmed in part and reversed in part and remanded to the Commission for the express purpose of reconsidering its decision as to sanctions in light of the determination that Moss “contributed to the commission of the crime possession of a handgun by a felon per 18 US Code Section 922(g)” and to “prescribe terms of reinstatement, including whether Moss may be placed in an administrative position.”

After full consideration of the findings and conclusions reached in Moss I and evidence presented in this proceeding, the Commission determined that 312 IAC 4-4-5, which states the Department of Natural Resources “will normally impose discipline in a progressive manner; however, the division director shall impose discipline that is appropriate to the seriousness of the misconduct,” to be controlling.  The Commission, finding no evidence in the record pertaining specifically to progressive discipline or the appropriateness of the sanction to the seriousness of the misconduct in this individual case, took official notice, as authorized at IC 4-21.5-3-26(f)(2), of Commission decisions relating to negative employment actions against conservation officers.  Following such consideration, the Commission determined that historical disciplinary action taken against the employment of conservation officers for similar types of misconduct did not support termination of Moss.  The Commission reinstated the suspension as determined in Moss I.

With respect to the terms of Moss’s reinstatement the Commission determined that IC 14-9-8-7(b) authorizes only the director of the Department’s division of law enforcement has the authority to assign or reassign conservations officers with respect to duty stations and responsibilities.  For this reason, the Commission concluded that it is without lawful authority to prescribe exact terms on Moss’s reinstatement but affirmed the division director’s ability to assign Moss to any duty or station “provided such assignment or reassignment does not constitute a demotion, suspension, or termination…” Administrative Cause No. 13-134L

Harston v. Bortner, 14 CADDNAR 121 (2016) 

For consideration in this instance is the exercise of riparian rights associated with a five foot strip of property fronting on Hackenburg Lake in LaGrange County.  After extensive review and discussion of various property conveyances and easements, the Commission determined that both the Petitioners and the Respondents are entitled to exercise riparian rights associated with the five foot length of shoreline, including the right to extend a temporary pier.  Of particular note is the Commission’s determination that the parties are required to use a common pier, as authorized at IC 14-26-2-23(e)(2)(A) and 312 IAC 11-3-4, under conditions for the construction and maintenance of the pier as prescribed by the Commission. Administrative Cause No. 14-114W

Thomas v. DNR, 14 CADDNAR 116 (2016)

Thomas sought administrative review of state park ejection issued by the DNR.  It was determined through evidence that Thomas dumped trash on Prophetstown State Park; was issued a citation for littering; and was ejected from Prophetstown State Park for one year.  The DNR’s Notice of Ejection was affirmed. Administrative Cause No. 16-008P

DNR v. Flowline Specialties, Inc., 14 CADDNAR 114 (2016)

At issue are Notices of Violation and the revocation of 29 oil and gas permits held by Flowline Specialties. 18 of the 29 permits were transferred to new ownership.  With respect to the 11 remaining notices of violation, Flowline failed to timely abate the violations and failed to seek an extension of time within which to abate the violations. Flowline had also failed to post bond as required by IC 14-37-6-1.  The remaining 11 permits are revoked, and Flowline is ordered to properly plug and abandon the wells authorized by the revoked permits as well as perform site restoration required by 312 IAC 16-5-19(c). Administrative Cause No. 13-178G

Fankhauser Holding, LLC & Sedgwick v. DNR, 14 CADDNAR 110 (2016)

For consideration, is the Department’s denial of a permit to place an 80-foot concrete seawall along the shoreline of Clear Lake. The subject shoreline is located within an “area of concern” (312 IAC 11-2-2), and any new seawall must be comprised of either glacial stone or bioengineered materials (312 IAC 11-4-2(c )).  No evidence was presented identifying concrete as the only viable method for controlling shoreline erosion. The permit denial was affirmed.  Administrative Cause No. 15-122W

Smith v. Simanton, 14 CADDNAR 103 (2016)

For consideration, is a riparian rights dispute on Hamilton Lake in Steuben County. The common riparian zone boundary lines between the parties are determined through the proration application of the Fourth Principle of Information Bulletin #56. A buffer zone of five feet must be maintained on either side of each common riparian zone boundary, and no portion of a temporary structure, including watercraft moored to the temporary structure, may be maintained within a buffer zone. Administrative Cause No. 15-070W.

Deister v. JR Realty Corp., 14 CADDNAR 97 (2016)

For consideration is a riparian rights dispute on Lake Wawasee, in Kosciusko County. JR Realty’s claims include claims as a riparian owner, a member of the public and on behalf of the public. JR Realty may not assert claims on behalf of the public. The property line between the parties is extended consistent with the Second Principle in Information Bulletin #56. A buffer zone of five feet on either side must be maintained on either side of each common riparian boundary established by the order. Administrative Cause No. 15-077W

Walthers v. DNR, 14 CADDNAR 57 (2016)

[NOTE: WALTHERS TOOK JUDICIAL REVIEW IN THE MARION SUPERIOR COURT ON MAY 16, 2016.] At issue in this proceeding is a notice of violation (NOV) issued under IC 14-27-7.5 (commonly known as the “Dam Safety Act”) to Walthers and Richards, the owners of the Forest Lake Dam.  Richards filed an Agreed Settlement and Stipulation of Dismissal; and subsequently, a Final Order of Dismissal was issued as to the Richards.  As to Walthers, the Commission affirmed the NOV and mitigation plan.  Administrative Cause No. 13-147W