Recent Caddnar Decisions
Tallian v. DNR & NIPSCO, 14 CADDNAR 180 (2017)
In this proceeding, the Commission accepted an agreement entered into between the petitioners and Northern Indiana Public Service Company (NIPSCO) to which the Department of Natural Resources did not object. The agreement specified that without any admission of fact or law on the merits of the dispute that the permit issued to NIPSCO by the Department would be terminated. Administrative Cause Number 17-081W
This proceeding considers a riparian rights dispute involving two properties situated within William Chapman’s Addition to Tri-Lakes Resort, which was platted in 1921, and one property situated adjacent to but outside the boundary of the platted Addition. Within the Addition a six foot wide public walk runs parallel to the shoreline of Shriner Lake that separates the two Addition properties from the waters of the Lake. The evidence established that the Addition property owners have used the shoreline associated with the public walk for the placement of temporary piers within the lateral limits of their property boundaries since as early as 1962. Based upon the evidence it was concluded that the Addition owners possess a property interest in the public walk sufficient to qualify them as persons who may exercise riparian rights for the purpose of placing and maintaining temporary piers from the public walk.
Based upon the evidence presented, it was also concluded that the N.G. Hatton Trust had, through its use combined with the use of its predecessors in title, established a prescriptive easement in the riparian area attributed to the property situated adjacent to but outside the platted Addition.
It was also ordered that certain permanent structures be removed from the waters of Shriner Lake. Further, the decision discusses the effect of accretion upon property ownership unique to this proceeding and the resulting impact upon riparian boundaries. Administrative Cause Number 16-142W
At issue in this proceeding is the requirement of an oil and gas owner or operator to pay an annual well fee not later than February 1 for each permit held on November 1 of the preceding year. In this instance, on February 1, when the annual well fees at issue came due, the permits for which Mid-Central was required to pay the annual well fees were the subject of a proceeding initiated by the Department seeking revocation on the allegation that Mid-Central had engaged in a pattern of violations. The Commission observed that the purpose of an annual well fee is to assist in offsetting the costs of properly plugging and abandoning a well when a permit is revoked as a result of an owner’s or operator’s failure to comply with applicable laws. The Commission concluded that Mid-Central remained liable to pay the annual well fees despite the fact that the permits were the subject of an action seeking revocation. Administrative Cause No. 17-018G
For consideration is the Department’s allegation that Mid-Central engaged in a pattern of violations sufficient to justify the revocation of its remaining seven permits. The evidence established that Mid-Central failed to comply with the terms of an agreement, accepted as the Commission’s Final Order in a previous proceeding, which required Mid-Central to properly plug and abandon three wells. The failure to plug the wells resulted in the revocation of those permits. Thereafter, the Department issued Mid-Central an additional Notice of Violation for failure to pay required annual well fees. Evidence also established that during the pendency of this proceeding, Mid-Central removed all equipment from the well sites associated with the permits causing the wells to be inoperable. The Commission determined that Mid-Central’s actions qualified as a pattern of violations supporting the revocation of its remaining seven permits. Administrative Cause No. 16-153G
[NOTE: ON JUNE 20, 2017, PROSSER SOUGHT JUDICIAL REVIEW IN THE FULTON CIRCUIT COURT (25C01-1706-MI-355).] For consideration is DNR’s denial of a permit to construct a concrete seawall along a section of the shoreline on Lake Manitou, concluded to be an area of special concern. Petitioner did not provide evidence showing the area was a developed area because the Permit area contains characteristics of an area of special concern and does not fall within the definition of the upland side of a manmade channel. The Permit area is not a manmade channel because it is not a watercourse and dredging was not shown to increase the total length of the shoreline around the lake. Administrative Cause No. 16-041W
At issue in this proceeding is a riparian rights dispute arising between parties who had previously entered into a mediated agreement by which their riparian zone boundaries and the position of their piers within the riparian zones had been decided. The Commission was tasked with resolving the dispute that arose with respect to the implementation of the mediated agreement, which was not supported by an actual survey but was based upon inexact data and measurements. Administrative Cause No. 15-075W
For consideration is DNR’s approval of Triad’s application for Phase I, Phase II and Phase III bond release following the conclusion of mining operations in Greene County. Petitioner disputes that bond release is appropriate and claims that a final cut pit water impoundment on property in which he claims an interest leaks. The Petitioner failed to offer sufficient evidence to show that the bond release was in error. Administrative Cause No. 16-132R
For consideration is Dennis’ claim as a shoreline Lot owner in Nickels Park that Sutton & Melendez, who are not Lot owners in Nickels Park and are further not shoreline owners on Sechrist Lake, inappropriately extended a pier into the waters of Sechrist Lake from what was characterized as a “road and ditch to lake” identified in the plat as lying adjacent to the Dennis’ Lot. Conversely, Sutton & Melendez maintained that, by use, they had gained a prescriptive easement to exercise riparian rights associated with the shoreline of the platted “road and ditch to lake.” Based upon the evidence, the Commission determined that the platted “road and ditch to lake” was dedicated to the public and for that reason Sutton & Melendez could not demonstrate that their use had been exclusive, hostile or adverse sufficient to establish an easement by prescription. For this reason Sutton’s & Melendez’s exercise of riparian rights was deemed unlawful. The Commission, similarly concluded that because the “road and ditch to lake” is a dedicated public way, the Dennis’ also have no right to burden the waters lakeward of the shoreline of that public way with a pier or a boat moored to a pier as that use would interfere with the public’s right to use that shoreline for recreational purposes. Administrative Cause No. 16-021W
[NOTE: On SEPTEMBER 14, 2017, THE MARION SUPERIOR COURT AFFIRMED THE COMMISSION'S FINAL ORDER ON REMAND.] 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
[NOTE: WALTHERS TOOK JUDICIAL REVIEW IN THE MARION SUPERIOR COURT ON MAY 16, 2016. ON JUNE 13, 2017, THE MARION SUPERIOR COURT AFFIRMED THE COMMISSION. APRIL 13, 2018, MARION SUPERIOR COURT, ENVIRONMENTAL SECTION ISSUED ITS ORDER ON PETITION.] 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