CADDNAR
[CITE: Gundling v. DNR, 15 CADDNAR 108 (2020)]
Cause #: 19-028L
Caption: Gundling v. DNR
Administrative Law Judge: S. Jensen
Attorneys: Pro se Petitioner; M. Rea for Respondent
Date: July 24, 2020
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER FOLLOWING REMAND BY THE NATURAL RESOURCES COMMISSION
Case Summary and Jurisdiction:
1. The instant proceeding was commenced by the Petitioner, Cortland Gundling’s (Gundling), who filed correspondence with the Natural Resources Commission (Commission) on February 15, 2019, seeking administrative review of the Department of Natural Resources’ (Department) denial of his “Application for Special Event Permit on Lands Owned, Leased, or Licensed by the Department of Natural Resources” (Original Application).
2. Administrative Law Judge (ALJ) Jensen was appointed to preside over the administrative review.
3. Following an Administrative Hearing (hereafter referred to as “the First Administrative Hearing), the ALJ issued “Finding of Fact and Conclusions of Law with Nonfinal Order” (hereafter referred to as “the First Nonfinal Order”) June 11, 2019.
4. Additional history and jurisdictional information is provided in the First Nonfinal Order.
5. Gundling timely filed objections to the First Nonfinal Order that were considered by the Commission’s AOPA Committee. On October 14, 2019, the Commission, through its AOPA Committee, issued an order remanding the proceeding for reconsideration with the following instructions:
1. Gundling’s [Original Application] shall be further considered by the Department.
2. The Department shall fully consider methods by which the safety concerns identified by the Department may be addressed by Gundling, by the Department or through a collaborative effort.
3. Reconsideration of Gundling’s [Original] Application shall allow for the event date to be amended to a date in 2020.
4. The Department’s reconsideration of Gundling’s [Original] Application shall be completed timely.
5. The Department’s determination of Gundling’s [Original] Application on reconsideration following remand remains subject to I.C. 4-21.5 et seq.
“Natural Resources Commission Order Remanding Proceeding with Instructions”, October 14, 2019 (Remand Order)
6. The instant Order addresses only those matters remanded by the Commission for further consideration.
7. ALJ Jensen conducted a Status Conference on November 20, 2019. It was agreed that Gundling would submit an amended application not later than December 6, 2019 and the Department would issue its determination not later than January 6, 2020. It was further determined that the Department’s review of Gundling’s amended application would “include a face-to-face discussion.” Ultimately, if the Department, once again, denied Gundling’s amended application, Gundling would be afforded the opportunity to file a renewed petition for administrative review. “Report of Status Conference”, November 21, 2019 (Status Report).
8. The Department denied Gundling’s amended application in a letter dated January 6, 2020.
9. Gundling filed a renewed petition for administrative review on January 7, 2020.
10. ALJ Jensen issued a “Notice of Prehearing Conference” on January 9, 2020, scheduling a Post Remand Prehearing Conference (PR-PHC) to be conducted on January 29, 2020.
11. The PR-PHC was rescheduled and conducted on February 26, 2020[1].
12. Discussion occurring during the PR-PHC, revealed that the parties’ had “incongruent expectations” of the ALJ’s required “face-to-face meeting” that “appeared to have undermined any benefit that might have been gleaned from the safety discussion…” ALJ Jensen afforded Gundling the opportunity to submit a written safety plan to the Department not later than March 13, 2020. She required the Department to review and respond to Gundling’s safety plan not later than March 27, 2020. Report of Prehearing Conference Following Remand, February 27, 2020 (Prehearing Report).
13. Subsequent to the PR-PHC, the Department sought and was granted a brief extension of time to respond to Gundling’s safety plan.
14. The Department confirmed its denial of Gundling’s amended application in a letter dated April 17, 2020.
15. The parties filed and exchanged witness and exhibit lists. The ALJ issued four subpoenas, as requested by Gundling, to ensure the appearance of necessary witnesses. The following witnesses testified during the Post Remand Administrative Hearing:
a. Terry Coleman (Coleman), Deputy Director of the Department’s Division of State Parks;
b. Corporal Stephen Robert Miller (Cpl. Miller), Conservation Officer (CO);
c. Lieutenant Gaylord Andrew Crozier (Lt. Crozier), CO;
d. Gundling, Petitioner;
e. Travis A. Stewart (Stewart), CO;
f. Travis Wooley (Wooley), CO; and,
g. Brandon Shoults (Shoults), CO.
16. The Post Remand Administrative Hearing was conducted as scheduled on May 27, 2020.
17. The ALJ determined that exhibits admitted as evidence during the First Administrative Hearing remain a part of the record of this proceeding and were not subject to further objection. Those exhibits were available to the parties for use during the Post Remand Administrative Hearing.
18. The parties stipulated the admission of additional exhibits, identified as Stipulated Exhibit I, II, and III.
19. Gundling offered three additional exhibits identified as Exhibits L, M, and N, all of which were admitted in the record without objection.
Findings of Fact and Conclusions of Law: [2]
20. Gundling’s original and amended applications sought a “special use permit” under 312 IAC 8-2-15 for an event identified as the “Brookville Lake Raft Up” (the Raft Up).
[VOLUME 15, PAGE 109]
21. With respect to Gundling’s original application dated January 7, 2019, the Department concluded;
There are too many safety concerns for this type of event to be held on public waters. I feel that the organizer does his best to host a safe event, however when the event starts, it’s not possible to maintain safe emergency travel lanes and ensure participants are acting responsibly.
Respondent’s Exhibits 1 & 3.
22. Although a copy of the document was not produced as evidence, the testimony and other evidence establishes that Gundling did submit an amended application following the Commission’s remand.
23. Customarily, a special event permit application is submitted to and reviewed and acted upon by property level management. Coleman. On behalf of the Department, property managers review the completeness of the applications and ensure that the applicant has clearly described the event, offered a “methodology to run the event”, and addressed any Department concerns. Id. The Department’s primary focus in reviewing this type permit application is safety. Id.
24. Crowd size, the availability of alcohol, the geographical location of the event, the proximity to emergency services, and whether the event is water-based or land-based are some of the more important matters customarily considered in evaluating a special event permit application. Id.
25. The Raft Up was planned to occur on Brookville Lake, which is located in a rural portion of the State where emergency resources are not close and response times are increased. Coleman. The number of boats and persons attending the Raft Up cannot be controlled, the event is water-based, and individual boaters have the ability to partake of alcoholic beverages. Id. Each of these factors contributed to the Departments’ safety concerns and denial of Gundling’s original and amended applications. Id.
26. After Gundling submitted the amended application, the Department scheduled a face-to-face meeting with Gundling as required by ALJ Jensen “to discuss the safety concerns associated with the event” (referred to herein as the “Safety Meeting). ALJ Jensen intended this meeting to facilitate the Commission’s Remand Order requirement that the Department “fully consider methods by which the safety concerns identified by the Department may be addressed by Gundling, by the Department or through a collaborative effort.” Remand Order, & Status Report.
27. For purposes of the Safety Meeting, the Department assembled professional recreation managers, field personnel and field administrators from the Division of Law Enforcement, as well as executive level staff from both the Divisions of Law Enforcement and State Parks, “all of which we came to hear what [Gundling’s] plan was because in our phone calls [Gundling] kept telling me that [he] wanted to talk about the safety plan.” Coleman.
28. In the Department’s opinion Gundling did not produce a written safety plan, nor was he prepared to verbalize his plans to address the Department’s safety concerns during the Safety Meeting. Stip. Ex. I, Coleman. From Gundling’s perspective, he “came [to] this meeting in good faith in sharing ideas to make this event as safe as possible, we threw out many ideas on things we can do to improve safety but you and the officers present had none.” Ex. L. The Department staff present intended to listen and seek clarifying information as necessary in order to make an informed decision. Coleman. However, when Gundling did not come forward with a developed plan, Department staff began making inquiries, which Gundling interpreted as “being interrogated”. Coleman, Gundling, Ex. L, Stip. Ex. I.
29. The face-to-face meeting was not useful. Id.
30. The Department believed it to be Gundling’s burden to come forward with a safety plan for the Raft Up and did not consider it a Department responsibility to expend time and resources to do this work in order for Gundling to move forward with his proposed event. Coleman.
31. In questioning why the Department did not advise him that he needed to provide a safety plan to address the Department’s safety concerns, Gundling seemingly fails to recognize or accept that the Raft Up is his event for which planning is his responsibility.
32. Addressing the safety concerns associated with the Raft Up has been the subject of tremendous debate throughout the pendency of this proceeding. Aside from the Commission’s order to address this matter in a timely manner, the Department’s safety concerns are the sole issue in this proceeding since the Commission’s remand. The Department’s safety concerns were expressed in writing in its denial of Gundling’s original application, were highlighted during the First Administrative Hearing, were discussed in detail in the ALJ’s First Nonfinal Order, and were further considered by the Commission’s AOPA Committee. It is unreasonable to believe that Gundling did not recognize the need to come forward with a strategy to address those safety concerns during the Safety Meeting.
33. In questioning witnesses, Gundling highlighted the fact that the Commission ordered the Department to work in a collaborative way to address the safety concerns. He questioned why the Department did not tell him he needed to develop a safety plan or advise him what needed to be addressed in that plan. The requirement to work collaboratively was not intended to shift to the Department the burden of ensuring safety for Gundling’s privately planned Raft Up.
34. During the Prehearing Conference, the ALJ afforded Gundling an additional opportunity to submit a written safety plan for review by the Department. Prehearing Report.
35. On March 12, 2020 Gundling submitted his “Brookville Lake Raft Up 2020 Safety Plan” (Safety Plan) for the Department’s consideration. Stip. Ex. II.
36. In relevant part, the Safety Plan provides as follows:
We are hiring two off duty Indiana State Police Troopers from Alliance Security Inc. to work this event.
The two police officers will work this event from 12PM until 6PM.
One hour before the start of the event one officer will be assigned to work the dock and ramp at Hanna Creek, the second officer will be assigned to the safety boat to patrol the area of the event to assure the line up of boats leave lanes remane open and clear.
At start of event the officer at Hanna Creek dock will be pulled to the houseboat that is hosting the event to monitor the boats attending the event. From atop the house boat this officer has a clear view of the entire field of boats and to assist the safety boat as needed.
The safet boat will patrol the field of boats during the event and make sure all boats maintain open lanes and in case of an emergency can be easily directed to a given point.
The safety boat will be a pontoon boat equipped with a medical jump kit and back board and will be used to assist any person in need of care and to transport person to shore.
The two Indiana State Police Troopers will be in communication with each other and the houseboat by private radio. We would like the Conservation Officers to establish a protocal for a line of communication and response in case of an emergency or a need for law enforcement action.
At the end of the event one officer will be assigned back to the Hanna Creek dock to monitor the dock and ramp area and the safety boat will patrol the idle zone just west of Hanna Creek to monitor the boats pulling into the dock areas. The two officers will stay until 6PM.
Two weeks before the event we will post on the Facebook page how we want boats to line up and required spacing between lines of boats. In case of emergency we are instructing boaters to call 911 and then call a posted cell phone number on the houseboat so we can direct assistance quickly.
Stip. Ex. II. (Grammar and spelling as in original)
37. An officer addressing a violation or attending to another critical event would be prevented for a period of time from patrol to identify and address other matters. Stewart, Wooley.
38. Gundling’s Safety Plan does not contemplate the need for redundancy in law enforcement presence to accommodate the lack of availability of one of the Indiana State Police Troopers should he/she become involved in issuing a citation or responding to an emergency situation. Coleman.
39. Gundling’s Safety Plan offers only that one Indiana State Police Trooper would be on board the pontoon safety boat with a first aid kit and backboard. Stip. Ex. II. The Safety Plan does not describe the qualifications of other personnel on board the safety boat to use, or assist in the use of, these available emergency medical supplies and equipment. Coleman.
40. The Indiana State Police Troopers Gundling intends to hire as part of the Safety Plan have been assigned to work on Seymour Lake and have experience working on water. Gundling. However, the Safety Plan does not provide any detail about the Troopers’ watercraft operation training or information regarding their familiarity working congested water-based events. Coleman.
41. Although Gundling did not request assistance from the Department’s Conservation Officers in either his original or amended applications, he did request such assistance during the meeting and in his Safety Plan. Stip. Ex. II, Coleman.
[VOLUME 15, PAGE 110]
42. Following review of Gundling’s amended application, the discussion occurring at the Safety Meeting, and the content of the Safety Plan, in a letter dated April 17, 2020, the Department affirmed its denial of Gundling’s amended application. In relevant part the Department stated as follows:
…from experience across our properties … and over many years of monitoring, supervising, and operating special events on public resources, there are many challenges associated with safely operating a large-scale, public event. Attempting to plan and host an event of the magnitude like the one proposed in a rural setting is a challenge in itself, which your plan has failed to account for. …
Hosting a large, water-based event magnifies the complexity almost exponentially. … As discussed, we do not believe it is possible to host such an event, while also ensuring sufficient emergency access for law enforcement, emergency medical services, and for a quick exodus should a severe weather plan need to be implemented. It is evident that, as event organizers, you have no way to register or predict attendance. Therefore, providing emergency services commensurate with anticipated or even a larger, unanticipated crowd becomes problematic. … Importantly, there is no law enforcement component to the plan, which is also critical to provide emergency response. … A single, off-duty police officer operating a pontoon boat with a first aid kit in, and around what may potentially be 250 or more boats is simply not sufficient to ensure the safety of everyone in attendance, nor the safety of the officer. Critically, if, for any reason, the officer becomes involved in a custodial arrest or critical incident, the event would be virtually without security for an unknown time period.
As we have seen in the past with similar events such as “Rock the Boat” on Monroe Reservoir, the unpredictability of crowd size and weather were two distinct factors that make hosing an event like this one, on the water, unfavorable. Something as seemingly insignificant as a change in wind direction will move a mass of anchored boats within seconds, altering even well-laid plans that were developed to provide travel lanes. …
Stip. Exhibit III. (Grammar and spelling as in original)
43. The evidence establishes that as the Raft Up has gained in popularity and attendance has increased, the event has become a concern to the Department. Coleman. Coleman offered the following insight into the challenges faced by the Department with respect to property management,
I think there’s a lot of things that when you manage the breadth and width of what this agency has to manage, there are things that take place…and maybe they don’t come to the surface but at some point when they do come to the surface, or they’re recognized, or you get to a point where the event, the happening, the whatever, comes to center-stage and it’s recognized at some point, then you’re almost negligent if you don’t deal with it, or handle it in an upfront manner. … There’s things that are probably happening on our properties right now that we’re not always aware of; and, when we become aware of those things, then we address them.[3]
44. Coleman testified that he was aware that permits had been issued for the Raft Up in previous years but he was not aware of Department staff concerns associated with the event until 2018.
45. There is no evidence that Gundling has violated any provision of a past permit. Coleman.
46. The review of any special event permit application is based on the unique needs of the particular event and in some cases a safety plan is not deemed necessary. Coleman. Coleman testified that he was not aware what, if any, safety plan is customarily required for a fireworks display and offered that safety plans are required for fishing tournaments but they are not required to be as highly detailed because of the differences in the conduct of the event.
47. Fishing tournaments do involve a significant number of boats in one location for a short duration, typically “very early in the morning”. Coleman. The anglers rapidly disperse to “remote areas” of the lake to fish, and then congregate once again, typically late in the day, for a “weigh-in” before leaving the lake. Coleman. During a fishing tournament, the boats do not remain congested for large periods of time. Id. During a fishing tournament, the boats do not “raft up” or tie together. Anglers register for fishing tournaments so customarily the sponsor can approximate the number of boats participating; usually between 25 to 200 boats. Safety concerns can be addressed in accordance with the number of anglers and boats participating. Coleman.
48. Two notable factors are highly distinguishable between fishing tournaments and the Raft Up. First, the number of boats participating in a fishing tournament can be determined and safety plans can be prepared in correlation to the needs. Conversely, there is no registration for the Raft Up making it nearly impossible to assess the number of boats participating to allow a commensurate safety plan to be developed. Second, due to the nature of the events a fishing tournament naturally involves the dispersal of boats whereas the Raft Up encourages congestion for a lengthy duration of time.
49. Gundling contended, through his questioning, that fireworks displays, which occur at night, promote increased lake activity, and have similar alcohol consumption to what may be experienced with the Raft Up, poses an equal or even greater hazard.
50. Fireworks displays are also different from the Raft Up in important ways. Fireworks displays are visible from large distances, which allows the increased presence of boats to be less congested. Coleman, Wooley. The Raft Upon, conversely, encourages boaters to congregate in close proximity to the band, the sound from which will not travel the same distance as the visibility of a fireworks display. Cpl. Miller, Stewart, Wooley. Wooley testified that he had conducted patrol during a fireworks display and experienced no difficulty being able to navigate between boats during that event.
51. Very little evidence exists in the record with respect to the “Rock-the-Boat” event referred to by the Department in Stipulated Exhibit III. However, that event occurred and the Department took action to prohibit it from continuing before the Department had developed a permitting process for special events on Department properties. Coleman. Coleman testified to the possibility that events such as “Rock-the-Boat”, were, at least in part, the impetus behind the special event permitting process.
52. Cpl. Miller worked Raft Up on three occasions, including in 2016 and 2017.
53. CO Wooley worked the Raft Up in some of the first years it was held as well as in 2015 and 2017. Wooley.
54. CO Stewart worked the Raft Up in 2014, 2016 and 2017. Stewart.
55. CO Shoults worked the Raft Up in 2013, 2014, 2016, and 2017. Shoults.
56. CO Shoults has completed National Association of State Boating Law Administrator (NASBLA) courses, including Basic Crew Course, Tactical Operators Course, and Pursuit and Stop Course. Shoults. Shoults is also a NASBLA certified instructor who provides instruction for COs within the Department’s Division of Law Enforcement. Id.
57. It is undisputed that the exact number of boats and individuals participating in the Raft Up is unknown. From their personal observations, the COs believe that the number of people and boats participating in the Raft Up has increased annually. Cpl. Miller, Wooley.
58. The Raft Up Facebook page has gained followers in recent years, now boasting over 4,000 followers. Gundling. This fact, lends credibility to the Department’s concerns that the crowd may grow rapidly and unexpectedly. Coleman, Wooley.
59. Wooley testified to his opinion that the Raft Up has become “too big to manage as far as law enforcement.”
60. The Department’s Division of Law Enforcement has worked the Raft Up on multiple occasions using both patrol boats and the “Wear It” [4] boat. The Department’s involvement has included as many as two patrol boats and the “Wear It” boat, with each boat carrying at least two COs. Shoults, Wooley, Stewart, Cpl. Miller. In the opinion of the COs, this level of presence provided by the Department has not been sufficient.
61. All of the COs agreed that having only two officers patrolling the Raft Up is insufficient.
62. Some of the violation and safety concerns observed by COs include people being towed without an observer, people hanging onto the back of jet skis, over-consumption of alcohol, drone activity over the water, failure to use life jackets when required, people swimming from boat to boat without life jackets, and the use of marijuana. Cpl. Miller, Stewart, Wooley, Shoults.
63. In 2013, Shoults was personally involved in making three boating while intoxicated arrests during or shortly after the conclusion of the Raft Up. Shoults. Shoults was also involved in the investigation of a fight involving people who he recalled reporting having been at the Raft Up. Id.
64. In 2016, before the Raft Up was cancelled, Cpl. Miller personally contacted Gundling on two occasions to advise him of approaching severe weather that had produced tornados in the near vicinity. Cpl. Miller. Gundling was not prepared to make an announcement to the growing crowd advising them to seek shelter because the public address system was not yet functioning. Gundling.[5] Instead, Gundling announced the approaching storm through a post on the Raft Up Facebook page. Id. Six boats were damaged in the rush of boaters leaving the congested area of the Raft Up to seek cover from the storm. Cpl. Miller. Cpl. Miller testified that Raft Up participants were caught unaware and blamed COs for failing to offer warning of the approaching storm.
65. The evidence supports the conclusion that notifications through Facebook, which Gundling included in the Safety Plan to provide instruction for boat spacing and line-up, are not adequate.
[VOLUME 15, PAGE 111]
66. Congestion associated with the Raft Up poses a significant challenge in terms of addressing violations, and, more importantly, ensuring public safety.
67. From CO’s observations, addressing violations of law occurring during the Raft Up is not feasible. Cpl. Miller, Stewart, Shoults.
68. Navigating a patrol boat into the congested area of boats participating in the Raft Up creates additional safety hazards. Cpl. Miller, Stewart. The number of boats “rafted-up” or tied together prevented the “Wear It” boat and the patrol boats from navigation into the crowd in many instances. Stewart, Wooley. Cpl. Miller testified, “It was impossible to make contact with people if there was a violation that needed to be addressed.” Cpl. Miller.
69. COs must also consider the potential for hitting a person with a propeller when entering into waters congested with boats where people are known to be swimming. Shoults.
70. Further, in some instances, CO’s attempts to address violations were met with “jeers” and “cat-calls” from what Cpl. Miller characterized as an “unruly crowd”, thereby jeopardizing the safety of the COs. In 2017, the “unruliness” of the attendees restricted COs, whether in the “Wear It” boat or the patrol boat, to the perimeter of the Raft Up event. Cpl. Miller.
71. All of the COs who testified agreed that avoiding the potential creation of additional hazards to the public and to the officers required them, in many instances, to forego addressing observed violations of the law.
72. In the early years of the Raft Up, the event was a good opportunity for the Department to conduct public relations and promote water recreation safety using the “Wear It” boat. Cpl. Miller. However, the increase in attendance, the increase in the number of violations that officers cannot address, and the increasing unruliness of the crowd is not consistent with the public outreach purposes of the “Wear It” boat program. Cpl. Miller, Wooley.
73. Safety is the paramount concern. Stewart, Wooley, Cpl. Miller. Becoming involved in addressing violations further limits the COs available to identify and address more critical safety concerns or address an emergency situation should one occur. Stewart, Wooley.
74. Because navigation is limited, each patrol boat can observe only a small portion of the entire crowd. Id.
75. Gundling acknowledged during the first Administrative Hearing, that from the water’s surface “you have no depth” of view to identify lanes of navigation. First Nonfinal Order, Finding 46.
76. Officers agreed with Gundling that routinely certain coves within the Brookville Lake do become congested with anchored groups of boats tied together. Cpl. Miller, Stewart, Shoults. However, this usual and customary congestion does not impede travel of the patrol boats and does not hinder the ability of officers to address violations. Id.
77. COs acknowledged that many of the same types of violations, including the failure to wear life jackets when required, the over consumption of alcohol, and drug use, occur on Brookville Lake throughout a typical day. Stewart. However, the COs customarily address the violations with arrests or the issuance of warnings or citations. Id. During the Raft Up, the inability to address these types of violations due to the congestion is a critical factor in the Department’s belief that the safety of the public and law enforcement officers cannot be reasonably ensured. Stewart, Wooley, Shoults.
78. An “incident report” is used in the context of violations, injuries, and other similar instances. Lt. Crozier. The use of an “incident report” by a CO to convey concerns about the Raft Up would not be appropriate. Id. However, following the 2017 Raft Up, Cpl. Miller and four other COs prepared memoranda detailing their observations and concerns about the event.[6] Lt. Crozier, Cpl. Miller, Stewart.
79. When individuals are engaged in personal recreation in privately owned boats they are responsible for themselves; however in the Department’s view when invitations are made to attend a permitted event the host is required to consider the needs and safety of the invited guests. Coleman.
80. The overriding consensus of Department professionals, particularly law enforcement professionals with particular expertise in safely conducting water-based activities, is that the safety and the needs of the guests invited to participate in the Raft Up cannot be reasonably assured and the event should not be permitted to occur on a Department controlled and managed property.
Conclusions of Law:
81. The Department’s review and decision associated with Gundling’s Application is controlled by 312 IAC 8-2-15, which states:
Sec. 15. (a) This section governs the use of an area within a DNR property that is open to the public by a person to conduct a public meeting, parade, demonstration, ceremony, contest, competition, sporting activity, or other special event. For the purposes of this section, an area is not open to the public if the director or an authorized representative determines that the proposed activity would unduly disturb the environmental, biological, ecological, archeological, or historic characteristics of the area.
(b) An area open to the public may not be used by a person to conduct a public meeting, parade, demonstration, or ceremony unless the person has obtained a license for the use under this section.
(c) An application for a license designated in subsection (b) shall be delivered to the department at least thirty (30) days in advance of the proposed event and shall set forth each of the following:
(1) The name, address, and telephone number of the applicant.
(2) The date, time, and duration of the proposed activity.
(3) An estimate of the number of individuals expected to attend and to participate in the activity.
(4) A statement of any equipment or facilities to be used in connection with the activity.
(d) An application for a license under subsection (b) shall be granted unless the property manager determines at least one (1) of the following:
(1) The activity will present or be conducted in a manner that will present a clear and immediate danger to public health or safety.
(2) The activity will cause undue interference to other users in the area.
(3) The activity will conflict with another license previously issued by the property manager.
(e) An area open to the public may not be used for a contest, competition, sporting event, or other similar activity unless authorized by a license. An application for a license under this subsection shall be delivered to the department at least thirty (30) days before the proposed event and shall set forth the following:
(1) The name, address, and telephone number of the applicant.
(2) The date, time, and duration of the proposed activity.
(3) An estimate of the number of individuals expected to attend and participate in the activity.
(4) A description of any equipment or facilities to be used in connection with the activity.
(f) To receive a license under subsection (e), the applicant must demonstrate each of the following:
(1) The activity will not present or be conducted in a manner that will present a clear and immediate danger to public health or safety.
(2) The activity will not cause undue interference to other users of the area.
(3) The activity will not conflict with another permit previously issued by the property manager.
(4) The activity is consistent with the property master plan, or, if a master plan has not been adopted, is consistent with the purposes for which the area was established.
(5) The activity is consistent with any site designated under subsection (h).
(g) The property manager shall make an initial determination to issue or deny an application for a license sought under this section within a reasonable period of time after receipt of the application. The license may include conditions that are reasonably necessary to satisfy the purposes of this section. An applicant or other affected person who is aggrieved may take administrative review to the commission under IC 4-21.5 and 312 IAC 3-1.
(h) An area open to the public is available to the general public by reservation on a first-come, first-served basis.
(i) A license issued under this section does not authorize a person to establish, construct, or erect a structure unless otherwise specified in the license.
(j) This section does not apply to a private expression of religious preference.
82. Brookville Lake and Whitewater State Park is a Department property open to the public. 312 IAC 8-1.5-6.
83. As determined in the First Nonfinal Order, Gundling’s amended application is correctly considered under 312 IAC 8-2-15(a) – (d).
84. Subsection (d) requires the Department to issue the permit unless it determines that one of the following conditions will result from the Raft Up:
(1) The activity will present or be conducted in a manner that will present a clear and immediate danger to public health or safety.
(2) The activity will cause undue interference to other users in the area.
(3) The activity will conflict with another license previously issued by the property manager.
85. The Department offered evidence from the Deputy Director of its Division of State Parks along with the testimony of five Conservation Officers, all of whom are considered to be experts in their respective fields.
86. The evidence presented by the Department’s experts was not refuted by evidence of similar weight.
87. After consideration of the factual evidence in the record, the Department’s conclusion that the Raft Up event, will present “a clear and immediate danger to public health or safety” is determined to be justified.
Final Order:
88. The Department’s denial of Gundling’s amended application is affirmed.
[1] Gundling, for justifiable reasons, failed to appear for the January 29, 2020 PR-PHC and the matter was rescheduled.
[2] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriate considered a Finding of Fact shall so be considered.
[3] A court reporter has not been requested to prepare a transcript of testimony from the Administrative Hearing. If a witness is shown as being quoted in these Findings, the statement is as nearly verbatim as could be determined by the ALJ. In some instances a stutter or verbal misdirection corrected immediately by a witness may be omitted. If a transcript is subsequently prepared that indicates different wording, the transcript shall be considered the official record and a quotation as paraphrasing of witness testimony.
[4] The “wear it boat” is best characterized as a public outreach operation designed to promote water recreation safety.
[5] Statement was made by Gundling in the course of questioning Cpl. Miller.
[6] The memoranda referred to was not introduced as evidence.