[CITE: Rice v. Weatherford, 13 CADDNAR 220 (2013)]
[VOLUME 13, PAGE 220]
Cause #: 13-135W
Caption: Rice v. Weatherford
Administrative Law Judge: Lucas
Attorneys: pro se (Rice); pro se (Weatherford); Andrews (DNR)
Date: December 20, 2013
(1) The common property line of Lot E and Lot F of the Sycamore Shores subdivision shall be extended a reasonable distance in a straight line into Big Barbee Lake to identify the boundary between the riparian zones of the Rices and of the Weatherford family.
(2) After March 31, 2014, the Rices and the Weatherford Family must not retain, place or authorize the placement of a structure or the mooring of a boat nearer than five feet from their common riparian boundary.
(3) The Rices and the Weatherford family must not interfere with active boating or with the use of their riparian areas by another person for lawful ingress or egress to the shoreline, a pier, or a similar structure.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The proceeding was initiated on August 9, 2013 when Donald Rice and Marilyn J. Rice (the “Rices”) filed correspondence which sought relief with respect to the placement by Gary Weatherford, Beverly Shrake, Timothy Weatherford, and Nancy Hoffman (collectively the “Weatherford family”) of a temporary pier in Big Barbee Lake in Kosciusko County. Big Barbee Lake is a “public freshwater lake” that is subject to Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and 312 Ind. Admin. Code § 11, rules adopted by the Natural Resources Commission (the “Commission”) to assist with implementation of the Lakes Preservation Act. Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23 (2005); and “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 3.
2. The Lakes Preservation Act places full power over public freshwater lakes in the State of Indiana. The State holds public freshwater lakes in trust for all Indiana citizens to preserve the lakes’ natural scenic beauty and for recreational purposes. The Department of Natural Resources (the “DNR”) is the agency responsible for administering the trust. Indiana Dept. of Nat. Res. v. Lake George, 889 N.E.2d 361 (Ind. App. 2008) and Lake of the Woods v. Ralston, 748 N.E.2d 396, 401 (Ind. App. 2001). See particularly Ind. Code § 14-26-2-5.
3. The Commission is the “ultimate authority” for agency determinations under the Lakes Preservation Act, including those derived from competing interests among persons claiming riparian rights or interests in riparian rights that may be sufficient for the placement of piers and similar structures in public freshwater lakes. Ind. Code § 14-10-2-4 and Ind. Code § 14-26-2-23. Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).
4. The Lakes Preservation Act is derived from legislation originating in 1947. Statutory amendments made in 2000 included the addition of Ind. Code § 14-26-2-23. The amendments clarified the Commission is responsible for adopting rules to help implement a licensure program that includes temporary piers. The Commission was also charged with resolving disputes between “the interests of landowners having property rights abutting public freshwater lakes or rights of access to public freshwater lakes.” The Commission is to address “competing riparian interests”. Ind. Code § 14-26-2-23(e) and Ind. Code § 14-26-2-23(f).
5. An administrative law judge was appointed under Ind. Code § 14-10-2-2 to conduct this proceeding. The administrative law judge scheduled the initial prehearing conference for September 13, 2013 and informed the Rices and the Weatherford family.
6. On September 6, the Department of Natural Resources (the “DNR”) filed a “Petition to Intervene”. The petition was granted, and the DNR was added as a party on September 10. The Rices, the Weatherford family, and the DNR are collectively the “parties”.
7. The initial prehearing conference was conducted as scheduled in Columbia City on September 13. The Rices were present in person. The Weatherford family was present through Gary Weatherford. The DNR was represented by its attorney, Andrew Wells.
8. Another prehearing conference was conducted as scheduled in Columbia City on November 1. The parties were present. They agreed a hearing of the facts should be scheduled for November 25 in Anderson. During the conference, the parties discussed and then stipulated to the introduction of two exhibits:
(1) J. K. Walker & Associates, P.C. survey, copy of which was attached to the “Report of Prehearing Conference and Notice of Hearing” as “Stipulated Exhibit One”. The survey consists of three pages, including Drawing PM-157.
(2) “Riparian Zones within Public Freshwater Lakes and Navigable Waters”, Information Bulletin #56 (Second Amendment), Indiana Register, 20100331-IR-312100175NRA (March 31, 2010) a copy of which was attached to the “Report of Prehearing Conference and Notice of Hearing” as “Stipulated Exhibit Two”.
9. The Drawing for Stipulated Exhibit One is as follows:
10. As depicted on Stipulated Exhibit One and according to a plat in the records of the Recorder of Kosciusko County, Indiana, the Rices own Lot E of Sycamore Shores subdivision. The Weatherford family owns Lot F. Lot E and Lot F share a common boundary. The east extensions of Lot E and Lot F are adjacent to Big Barbee Lake. For Lot E and Lot F, respectively, the Rices and the Weatherford family are riparian owners. Stipulated Exhibit One is a true and accurate depiction of site as of September 20, 2013, including the location of the temporary pier extending from the Rices’ Lot E and the temporary pier extending from Weatherford family’s Lot F.
[VOLUME 13, PAGE 221]
11. The hearing of the facts was conducted as scheduled on November 25. The Rices were present in person. The Weatherford family was present through Gary Weatherford, Beverly Shrake, and Nancy Hoffman. The DNR was present through its attorney, and he was accompanied by James Hebenstreit, Assistant Director of DNR’s Division of Water.
12. The Commission has jurisdiction over the subject matter and over the persons of the parties. The proceeding is ripe for a final disposition by the Commission.
13. The Weatherford family did not place a pier in the summer of 2012. Although the Rices and the Weatherford family disagree concerning the exact location of the Weatherford family pier in 2011, they agree the Weatherford family located their pier farther north and nearer to the common boundary in 2013.
14. Marilyn Rice testified she and her husband have approximately 50 feet of shoreline on Big Barbee Lake. Gary Weatherford testified the Weatherford family has approximately 100 feet of shoreline. These approximations are not disputed.
15. Gary Weatherford testified his family relocated its pier farther north because the lakebed has better conditions for swimming and associated recreation. Farther south the lakebed is characterized by lily pads and muck. Farther north there is more sand and pea gravel. He and Marilyn Rice testified pea gravel was placed by them or their respective predecessors-in-interest to improve the riparian areas for recreation. They disagree by whom the pea gravel was placed, both claiming credit and denying credit to the other.
16. A riparian owner along a public freshwater lake typically enjoys rights that include: (1) access to the public water; (2) the placement of a pier to the line of navigability; (3) the use of accretions; and (4) reasonable use of the water for purposes such as boating and domestic use. The right to maintain a pier exists only so far out as not to interfere with the rights of the public or with the rights of other riparian owners. Parkison v. McCue, 831 N.E.2d 118, 128 (Ind. App. 2005) for public freshwater lakes, and Center Township Corp. v. City of Mishawaka, 882 N.E.2d 762, 767 (Ind. App. 2008) for navigable waters.
17. Under some circumstances, the DNR may permit the placement of pea gravel within the shoreline of a public freshwater lake. 312 Ind. Admin. Code § 11-4-4. But riparian ownership does not guarantee a right to place pea gravel, and there is no guarantee the lakebed within a riparian area will be desirable or suitable for swimming and other recreational activities. The opportunity for pier placement, which is associated with riparian rights, is to reach navigable water. Neither the Rices nor the Weatherford family offered evidence or alleged that they have experienced an inability to reach navigable water as a result of a pier placement. Irrelevant to this proceeding is who may have placed pea gravel and the suitability of the lakebed for swimming and other recreational activities.
18. James Hebenstreit is an engineer with 40 years of experience in DNR’s Division of Water, most notably relating to permitting surface water and groundwater activities. He testified one appropriate methodology to determine the boundary of riparian rights is to extend common lot lines in a straight line into a public freshwater lake. The Walker survey admitted as Stipulated Exhibit One includes a dashed line from the common boundary of the Rices and the Weatherford family identified as the “lot line projected”. Based on his professional experience, and after comparing Stipulated Exhibit One with aerial photographs on the Kosciusko County website that included properties on both sides of Lot E and Lot F, Hebenstreit determined the “lot line projected” was a reasonable approximation of the riparian boundary between the Rices and the Weatherford family.
19. Where the shore approximates a straight line, and where the onshore property boundaries are approximately perpendicular to this line, the boundaries of riparian zones are determined by extending the onshore boundaries into the public waters. Bath v. Courts, 459 N.E.2d 72, 73 (Ind. App. 1984) and the “second principle” in Information Bulletin #56, p. 3 (Stipulated Exhibit Two).
20. Hebenstreit testified he believed the appropriate application of Information Bulletin #56 would call for an extension of riparian boundaries that was close to the description for the second principle. His testimony was unrefuted and appears consistent with Bath v. Courts and the second principle in Information Bulletin #56 (Stipulated Exhibit Two).
21. The second principle should be applied to delineate the riparian areas adjacent to the Rices’ property and the Weatherford family’s property in the vicinity of their common property line. The common property line should be extended in a straight line into the lake to identify the boundaries of their respective riparian areas.
22. Hebenstreit testified the DNR typically would like to see piers and boats moored to a pier set back five and preferably ten feet from the boundaries of riparian lines within a public freshwater lake. The reasons for preferring a ten-foot setback are to minimize conflicts between neighboring riparian owners, to provide adequate spacing for navigation, and to avoid the perception that a pier complex walls off public waters from use by the general public. These reasons are consistent with the purposes of the Lakes Preservation Act.
23. Similarly, the Commission has ruled that 20 feet of clearance is preferred for boats navigating between piers, but ten feet is sometimes sufficient. Walther, et al. v. Pier 343 Condominium Owners Assoc., 12 Caddnar 16 (2009).
24. Stipulated Exhibit One indicates the Weatherford family’s pier approaches within four-tenths of a foot of the common riparian line with the Rices. Hebenstreit testified this close proximity was a matter of concern to the DNR and would typically require a prior individual license in order to be lawful. The concern was also expressed in a November 7 letter from Hebenstreit to Gary Weatherford (a copy of which was filed with the Commission on November 12).
25. Following receipt of Hebenstreit’s November 7 letter, Gary Weatherford sent an email on November 12 stating the Weatherford family would agree to keep “the pier main body a minimum of 5 feet from the property line if this satisfy’s [sic.] the Rices.”
26. Hebenstreit testified the DNR would not have concerns if the Weatherford family pier was no closer than five feet from the riparian line separating the Weatherford family’s riparian area and the Rice’s riparian area, as long as no boat could be moored on the north side of the pier.
27. The purposes of the Lakes Preservation Act and the riparian rights of neighboring owners would be properly addressed by prohibiting the Rices and the Weatherford family from placing a pier or mooring a boat closer than five feet from the common riparian line.
 As provided in Ind. Code § 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent. Caddnar is the Commission’s index of final orders.
 Also admitted into evidence was Respondent’s Exhibit 1, an aerial photograph by the Lakeland Regional Sewer District of the vicinity that includes Lot E and Lot F. The aerial identifies lot lines in red. The aerial is not a survey, and distortions of distance and position of landmarks result commonly from aerial photographs. The survey included in Stipulated Exhibit One is the more reliable evidence of geographic relationships.