CADDNAR

 

                                                                                               

[CITE:  Sugar Valley Canoe Trips LTD & C. Lambermont v. DNR, 15 CADDNAR 86 (2020)]

 

[VOLUME 15, PAGE 86]

 

Cause #: 19-077P

Caption: Sugar Valley Canoe Trips LTD & Colton Lambermont v. DNR

Administrative Law Judge: D. Wilson

Attorneys: Petitioners by J. Hanner and E. Wyndham; Respondent by M. Rea

Date: February 3, 2020

 

 

[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

 

1.      On June 13, 2019, Petitioners, Sugar Valley Canoe Trips, LTD (Sugar Valley) and Colten Lambermont (C. Lambermont), by Counsel James Hanner and Eric Wyndham, filed a “Petition for Administrative Review and for Stay of Effectiveness” (Petition). The Petition was filed with the Natural Resources Commission (Commission) naming the Department of Natural Resources (Department) as Respondent.

 

2.      The Petition identifies a “Notification of Ejection from DNR Property” (Ejection) issued by the Department on May 31, 2019, ejecting Petitioners from Turkey Run State Park (Turkey Run). The Petition requests the Ejection “be rescinded in its entirety or, in the alternative, be amended to be in effect up to and including June 4, 2019….” Petition, at unnumbered page 4 and Ex. A.

 

3.      The Petition initiated a proceeding, under administrative case number 19-077P, that is subject to IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Natural Resources Commission (Commission) at 312 IAC 3-1 to assist with its implementation of AOPA.

 

  1. Administrative Law Judge (ALJ) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding.

 

  1. On June 18, 2019, Matthew Rea filed his appearance as counsel for the Department. On July 11, 2019, Samantha DeWester and Justin Paicely also filed appearances as counsel for the Department.

 

  1. AOPA includes an opportunity to request a “stay” of an agency order pending administrative review.  Following a preliminary hearing, an ALJ may grant a stay from either an enforcement action or a licensure action. IC 4-21.5-3-5 and IC 4-21.5-3-6.  See also Brown, et al. v. DNR (Order of Stay), 9 CADDNAR 109 (2003).

 

7.      On June 14, 2019, the ALJ scheduled a prehearing conference and a preliminary hearing on the Petitioner’s stay request to be heard on June 28, 2019. The Department, by Counsel Matthew Rea, filed “Respondent’s Motion to Continue” the event and the event was continued following confirmation that the Petitioners did not object. The event was reset for August 20, 2019, and heard de novo on that date, with all parties present at the Commission’s Division of Hearings office in Indianapolis, Indiana.

 

8.      The parties acknowledged the potential for the presentation of evidence that would be common to the preliminary stay hearing and the underlying hearing on the merits of the Petition. Prior to the offer of testimony by either party, in coordination with counsel for each party and for the purpose of efficiency, the ALJ ordered that evidence received during the stay hearing would be included as a part of the administrative hearing record for the underlying Petition so that it would not need to be repeated. The ALJ offered the parties the opportunity to motion for the exclusion of evidence presented during the stay hearing that would not be relevant for the hearing of the facts on the underlying Petition. No party motioned to exclude any evidence presented during the stay hearing from consideration at an administrative hearing on the Petition. The preliminary stay hearing concluded on August 20, 2019.

 

9.      Also on August 20, 2019, the ALJ allowed each party, at the party’s election, the opportunity to offer additional evidence, if necessary, at a bifurcated setting. In order to allow ample time for the parties to consider and report the party’s election to the ALJ regarding the need for additional evidence, a status conference was scheduled for September 5, 2019.

 

10.  On September 4, 2019, the ALJ issued an “Order on Petition for Stay of Effectiveness” denying the Petitioners’ stay request.

 

11.  During the Status Conference on September 5, 2019, the Petitioners requested additional time and the ALJ scheduled an additional status conference. During the Status Conference held on October 3, 2019, the Petitioners asserted a desire to present additional evidence at a bifurcated setting.

 

12.  The second and final session at which evidence was presented for consideration at administrative hearing on the Petition concluded on November 21, 2019, with all parties present.

 

13.  On November 21, 2019, following the closure of the presentation of evidence, the parties were allowed the opportunity to provide briefs on or before December 17, 2019. Petitioners, by counsel, filed “Petitioners’ Post Hearing Brief” on December 16, 2019. The Department did not file any brief. 

 

14.  A duty of the Department is to “have the custody and maintain the parks, preserves, forests, reservoirs, and memorials owned by the state.” IC 14-19-1-1(1).

 

  1. The Commission is the “ultimate authority” under AOPA for a petition for administrative review of a Department ejection from a State Park. 312 IAC 3-1-2, Jackson v DNR, 13 CADDNAR 53 (2012) and Colton Lambermont v. DNR, 12 CADDNAR 215 (2010). 

 

  1. The Commission possesses jurisdiction over the subject matter and the persons of the parties.

 

Findings of Fact[1]

  1. Sugar Valley is a “for profit” corporation located near Turkey Run. Sugar Valley provides a seasonal canoe, kayak and tube rental operation.

 

  1. C. Lambermont grew up around the Sugar Valley business. He obtained a bachelor’s degree in 2007 and received his MBA from Indiana State in 2010. He took over Sugar Valley’s daily operation when his father, Ron Lambermont, stepped down in 2015. C. Lambermont is currently the President of Sugar Valley and owns a 50% interest in the business. See testimony of C. Lambermont.

 

  1. Holiday Rose (Rose) is the Vice President of Sugar Valley. She owns a 25% interest in the business. See testimony of Rose.

 

  1. Sharon Lambermont (S. Lambermont[2]) is the Corporate Treasurer and Secretary[3] of Sugar Valley. She owns a 25% interest in the business. See testimony of S. Lambermont.

 

  1. S. Lambermont is Ron Lambermont’s wife and the mother of Rose and C. Lambermont.

 

[VOLUME 15, PAGE 87]

 

  1. The Sugar Valley operations run from April until October, primarily between Memorial Day and Labor Day. C. Lambermont.

 

  1. Sugar Valley’s annual trip receipts for 2018 totaled $777,142, with approximately 74% of its total receipts attributed to June, July and August. S. Lambermont and Ex. C.

 

  1. Sugar Valley offers three (3), six (6), 10, 12 and 15 mile trips on Sugar Creek and utilizes four land access points. Two of the access points are on private land owned by Sugar Valley at “Narrows Creekside” and “Jackson”. The other two are on State Park public access points at Deers Mill, within Shades State Park and Cox Ford, within Turkey Run. Id.

 

  1. Sugar Valley’s three (3), six (6) and 15 mile trips have traditionally used the Cox Ford public access point. Approximately 25% of Sugar Valley’s 2018 receipts represented trips that did not utilize the Cox Ford public access point. S. Lambermont.

 

  1.  In addition to offering trips, for those persons who use their own equipment, Sugar Valley also offers a shuttle bus service to Sugar Valley trip stops for a fee. During a recent season, Sugar Valley provided shuttle service to approximately 1,000 patrons. Id.

 

  1. The inability of Sugar Valley to utilize the Cox Ford public access point would have a significant negative impact on Sugar Valley’s current operation. Id.

 

  1. Chris Newcomb (Newcomb) was the Assistant Property Manager for Shades State Park and Turkey Run for eight years when, in 2014, he became the Property Manager at Summit Lake. Newcomb returned to be the Property Manager for Shades and Turkey Run in 2016. See testimony of Newcomb.

 

  1. In 2010, a stairway at the Cox Ford public access was removed. Sugar Creek’s bank experienced erosion and State Park staff backfilled the area on multiple occasions. Exhibit H.

 

  1. In 2018, Newcomb designed a new stairway with a ramp added to one side. Newcomb personally observed the structure at a time when construction of the stairs was completed and the ramp was partially completed. The structure was completed on July 11, 2018. See testimony of Newcomb.

 

  1. Newcomb worked on July 12, 2018. On that date, no one contacted him about the ramp or the stairs. Newcomb did not work on Friday, July 13; Saturday, July 14 or Sunday, July 15, 2018. Id.

 

  1. Following construction of new stairs at the Cox Ford public access point, C. Lambermont’s staff brought scratches on Sugar Valley canoes and kayaks to his attention. C. Lambermont inspected the ramp at the Cox Ford public access and observed that different screws were used to install the stairs than were used to install the ramp. He determined that elevated screw heads in the ramp dug into the bottom of one or more Sugar Valley canoes and kayaks. See testimony of C. Lambermont and Ex. I, L and N.

 

  1. C. Lambermont also determined that a “skid plate” located at the front of kayaks and canoes could be snagged by the ramp’s elevated screw heads and could cause the equipment to slip out of a carrier’s hand and slide back down the hill. He did not personally observe any personal injury from such a snag. C. Lambermont, Ex. T and M.

  

  1. C. Lambermont felt “cornered” because he saw scratches on the bottom of one or more of his kayaks or canoes and his perception of the potential a safety issue. C. Lambermont. The conclusions held by C. Lambermont regarding the potential for property damage or injury do not provide sufficient evidence to support the accuracy of his conclusions.

 

  1. Turkey Run staff received no report of injury between July 11, 2018 and July 16, 2018 at the Cox Ford access. Newcomb.

 

  1. On Friday, July 13, 2018, C. Lambermont called Newcomb and left a voicemail message. C. Lambermont.

 

  1. On Saturday morning, July 14, 2018, C. Lambermont instructed two or three Sugar Valley employees to assist him and they disassembled the ramp at the Cox Ford public access. They left the boards and the screws on the other side of a nearby fence. Id.

 

  1. In his testimony, C. Lambermont asserted his inability to recall the identity of the Sugar Valley employees he assigned to assist him with the ramp removal. However, he specifically recalled that the employees were being paid as employees of Sugar Valley during the ramp’s removal and that the removal was completed under his direction and supervision. Id.

 

  1. At the time when the ramp was removed, C. Lambermont was aware that the Cox Ford public access point is located within Turkey Run and is subject to the rules of use for State Park properties. Id.

 

  1. At the time when C. Lambermont removed the ramp at the Cox Ford access point, Rose and S. Lambermont were unaware of the removal. See testimony of Rose and S. Lambermont.

 

  1. No Department staff authorized C. Lambermont to remove the ramp.

 

  1. C. Lambermont was aware that he had no permission to remove the ramp when he and Sugar Valley employees removed the ramp. C. Lambermont.

 

  1. At the time when the ramp was removed, C. Lambermont was aware that neither he nor Sugar Valley had any specific property right to the Cox Ford public access beyond the access rights available to the general public. Id.

 

  1. When Newcomb returned to work on Monday, July 16, 2018, he retrieved C. Lambermont’s voicemail stating his desire to discuss concerns he had about the staircase and the ramp. Newcomb.

 

  1. Also on July 16, 2018, Newcomb was informed by Turkey Run staff that the newly constructed ramp had been removed. Thereafter, Newcomb inspected the Cox Ford access area, determined that the ramp had indeed been removed and discovered boards on the other side of a fence at the top of the hill near the Cox Ford access. Id.

 

  1. A new ramp was built by Turkey Run staff on July 23, 2018. Department staff used some or all of the boards, discovered by Newcomb at the top of the hill on the other side of a fence, in constructing the new ramp. Id.

 

  1. Newcomb called the Department’s law enforcement office, reported the incident and “turned it over” to Conservation Officer Nathan Lutz (Lutz). Id.

 

  1. Lutz has been a Department Conservation Officer since 2014. Lutz investigated the report made by Newcomb regarding the ramp removal at Turkey Run’s Cox Ford public access point. See testimony of Lutz.

 

  1. Lutz interviewed C. Lambermont a few days after he received Newcomb’s report. During the interview, C. Lambermont informed Lutz that screws sticking up too far on the ramp could cause injury. C. Lambermont also informed Lutz that the ramp screws caused scratches but no actual damage to Sugar Valley equipment. During C. Lambermont’s interview, he did not admit to Lutz that he removed the ramp and informed Lutz that he had no further comment. Lutz and C. Lambermont.

 

  1. Shortly after receipt of the original incident report, Lutz also interviewed an employee of Sugar Valley who denied knowledge of the ramp’s removal. Lutz.

 

  1. Because no witness came forward, Lutz did not continue to pursue his investigation until February or March of 2019, when a landowner informed Lutz that former Sugar Valley employees might have additional information. Lutz conducted additional interviews and multiple current or former employees of Sugar Valley admitted to assisting C. Lambermont with the ramp’s removal. Id.

 

  1. Lutz concluded that C. Lambermont intentionally removed the ramp with knowledge sufficient to support charges for criminal mischief. Id.

 

  1. Consistent with his standard practice for acts of criminal mischief, Lutz determined an ejection term of one year was appropriate. Lutz and Petition, Ex. A.

 

[VOLUME 15, PAGE 88]

 

  1. After concluding his investigation, Lutz drafted an ejection notice. Following a review of the draft by his superiors, Lutz signed the finalized Ejection on May 31, 2019. Id.

 

  1. The Ejection named the following ejected persons, “Sugar Valley Canoe Trips, Colton Lambermont, Ron Lambermont[4], proprietors”. Petition, Ex. A.

 

  1. The Ejection limited the DNR Property from which persons were ejected to “Turkey Run State Park”. Id.

 

  1. The term of the Ejection is stated to be from June 1, 2019, at 12:00 a.m. to May 31, 2020 at 11:59 p.m. Id.

 

  1. The Ejection identified the following violations as the bases for ejection, “312 IAC ____-Criminal - Mischief: IC 35-43-1-2.1(b)”. Petition, Ex. A.

 

  1. The Ejection offered the following narrative describing the reason for ejection:

For the destruction of the courtesy ramp located at Turkey Run State Park, Coxford Access. All owners, employees, personnel, contractors and vendors of Sugar Valley Canoe Trips are ejected from all portions of Turkey Run S.P. for one year. Any and all equipment owned, leased, used or possessed by Sugar Valley Canoe Trips found on any portion of Turkey Run S.P. property during the one year duration may be impounded at the owners’ expense. Customers of Sugar Valley Canoes may use the Coxford Access but none of the equipment they rented from Sugar Valley Canoes may cross Turkey Run S.P. property including the Coxford Access.

Petition, Ex A.

 

  1. C. Lambermont was served with the Ejection on May 31, 2019. C. Lambermont.

 

  1. Four (4) days after the issuance of the Ejection, a court’s order temporarily prohibited the Department from enforcing the Ejection. On one of those days, Sugar Valley would not have operated due to high water. S. Lambermont and Petition, Ex. B.

 

Conclusions of Law

 

De novo review and Burden of Proof

  1. As the “ultimate authority” the Commission conducts this proceeding de novo.  IC 4-21.5-3-14(d)

 

  1. De novo review requires the Commission and its ALJ to consider and give proper weight to the evidence rather than deferring to the original determination of the Department. Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 CADDNAR 317 (2011), applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).

 

  1. “At each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….”  IC 4-21.5-3-14(c).

 

  1. If an agency seeks the imposition of a sanction, it has the burden of persuasion and the burden of going forward (sometimes collective referred to as the “burden of proof”).  Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (1991 Ind. App.). As stated in Jackson, supra p.54, “Ejection from a DNR property under 312 IAC 8-5-3 is a form of sanction.”

 

  1. In this case, the Department has the burden of proof to provide sufficient evidence to support the Ejection.

 

Ejection - Department Authority

67.  The Indiana Legislature has determined that the Department shall, “(1) Have the custody of and maintain the parks, preserves, forests, reservoirs, and memorials owned by the state. (2) Adopt the necessary rules under IC 4-22-2 to secure enforcement of this title….” IC 14-19-1-1.

 

  1. The Department has the power to make public parks available to the public, under established rules. IC 14-19-1-2.

 

  1. To assist with the implementation of the Department’s duty, the Commission adopted rules at 312 IAC 8 governing the use of DNR Property.

 

70.  “DNR property” is defined at 312 IAC 8-1.5-6 to mean “land and water where any of the following applies: (1) The department has ownership...(2) The department holds a lease, easement, or license. (3) A dedication was made under IC 14-31-1. (4) The department manages the property.”

 

  1. Turkey Run is a State Park managed by the Department.

 

  1. Turkey Run is a DNR Property.

 

  1. Ejection from one or more DNR properties is authorized as follows:

(a) A property manager or another authorized representative may require a person to leave a DNR property or may otherwise restrict a person's use of a DNR property.

(b) An ejection or restriction imposed under subsection (a) is effective immediately and applies for twenty-four (24) hours unless the property manager or other authorized representative specifies a shorter duration.

(c) Notwithstanding subsection (b), a property manager or another authorized representative may designate in writing that the ejection or restriction shall remain in effect for not more than one (1) year. An ejection or restriction under this subsection is subject to administrative review to the commission under IC 4-21.5.

(d) An ejection or restriction imposed under this section may be made applicable to all or a portion of particular DNR property, to multiple DNR properties, or to all DNR properties.           

312 IAC 8-5-3.

 

  1.  A conservation officer shall:

(b)…(1) Detect and prevent violations of natural resources laws.

(2) Enforce natural resources laws and rules.

(3) Perform other related duties that are imposed upon conservation officers by law.

(c) A conservation officer has the same power with respect to natural resources matters and the enforcement of the laws relating to natural resources laws as have law enforcement officers in their respective jurisdictions.

IC 14-9-8-16.

 

  1. The ejection of Petitioners from Turkey Run was issued by Lutz, a Department Conservation Officer. See the Petition, Exhibit A.

 

  1. Lutz is a Department representative authorized to issue an ejection pursuant to 312 IAC 8-5-3.

 

  1. The Department’s Ejection was procedurally authorized.

 

Ejection - Violations: Cemetery Mischief and Criminal Mischief

  1. The Ejection states it is based on two violations of law.

 

  1. The first, cemetery mischief, pursuant to IC 35-43-1-2.1(b), occurs when:

A person who recklessly, knowingly, or intentionally:

(1) damages a cemetery, a burial ground (as defined in IC 14-21-1-3), or a facility used for memorializing the dead;

(2) damages the grounds owned or rented by a cemetery or facility used for memorializing the dead; or

(3) disturbs, defaces, or damages a cemetery monument, grave marker, grave artifact, grave ornamentation, or cemetery enclosure….”

 

  1. No evidence was presented to support the elements of cemetery mischief. During the administrative hearing, Petitioners, by counsel, acknowledged that the Ejection’s reference to this statute was likely in error.

 

  1. No violation based on cemetery mischief would support the Ejection. 

 

[VOLUME 15, PAGE 89]

 

  1. The second violation of law identified in the Ejection is criminal mischief. Pursuant to IC 35-43-1-2(a) criminal mischief occurs when, “A person who recklessly, knowingly, or intentionally damages or defaces property of another person without the other person's consent….”

 

  1. The ramp was not the property of Sugar Valley or C. Lambermont.

 

  1. The ramp was on DNR Property managed or owned by the Department.

 

  1. C. Lambermont, President of Sugar Valley, instructed employees of Sugar Valley to assist him in the intentional disassembly and removal of the ramp at the Cox Ford public access point to Sugar Creek within Turkey Run within days of the ramp’s construction by Department staff.

 

  1. Neither C. Lambermont nor Sugar Valley possessed permission or consent from Newcomb or another authorized Department representative to remove the ramp.

 

  1. Neither C. Lambermont nor Sugar Valley possessed any legal right to remove the ramp through a property interest in Turkey Run’s Cox Ford public access area.

 

  1. At the time of the ramp’s disassembly and removal, C. Lambermont was aware that he had no legal right greater than any member of the public to remove the ramp. No evidence was presented to show that any member of the public would have a right to remove a constructed ramp from a DNR Property without the Department’s authorization. 

 

  1. C. Lambermont took matters into his own hands one day after he left a voicemail for Newcomb. This manner of self-help is beyond any authority he possessed and was completed without regard for the authority of the Department to manage Turkey Run.

 

  1. Petitioners’ Post Hearing Brief (Brief) offers the following Random House Dictionary definition for “destroy”; “to reduce (an object) to useless fragments, a useless form, or remains.” See Brief at p. 3.

 

  1. For criminal mischief, property damage has been reasonably inferred from an office door that was forced open so that it could not thereafter be closed properly and an office that was ransacked with files strewn about the office. Strosnider v State, 422 N.E. 2d 1325, 1329 (Ind App 1981).

 

  1. The Indiana Court of Appeals reviewed the term “deface” in the context of criminal mischief in Haverstick v State, 648 N.E.2d 399, 401 (Ind App 1995) and found:

Deface is defined as “to mar the external appearance of.” See Webster's Ninth New Collegiate Dictionary (1989). Black's Law Dictionary (5th Ed.1979) defines “deface” as simply “to mar, injure, or spoil.”

 

Mar is defined as “to detract from the perfection or wholeness of.” Webster's Ninth New Collegiate Dictionary (1989). The definition of “mar” in Black's Law Dictionary (5th ed. 1979) includes “deface.”

 

We hold that “toilet-papering” trees detracts from the perfection or wholeness of the external appearance of trees so as to constitute the crime of Criminal Mischief as proscribed under I.C. 35–43–1–2.

 

93.     The ramp was defaced or damaged by its disassembly and removal that eliminated the external appearance of the ramp so that it no longer was capable of serving the function for which it was originally built. The overall appearance of the individual boards no longer served the useful purpose they previously provided as a ramp.

 

94.     By its disassembly and removal, C. Lambermont, individually and on behalf of Sugar Valley, destroyed the ramp originally constructed by Department staff. Disassembly and removal of the ramp caused the loss of the public access ramp area until such time as the Department’s paid park staff constructed a new ramp.

 

95.     The evidence is insufficient to determine if the new ramp was constructed using all of the original components of the ramp or if new components were necessary. Salvage efforts to reuse any boards that may have been a part of the original ramp exhibits the Department’s interest in efficiently minimizing costs to mitigate loss. The Department’s salvage efforts do not diminish the damage caused by the ramp’s disassembly. The ramp was damaged.

 

96.    C. Lambermont directed or actively participated in the disassembly and removal of the ramp. C. Lambermont, as an individual and on behalf of Sugar Valley, is found to have violated IC 35-43-1-2(b).

 

97.     The violation of IC 35-43-1-2(b) by C. Lambermont, individually and on behalf of Sugar Valley, is sufficient to conclude that the Department has met its burden and the facts support affirmation of the Department’s Ejection.

 

98.     During both dates on which evidence was heard on the Petition, the Petitioners presented evidence concerning the ability of two other liveries in the area to absorb the volume of business conducted by Sugar Valley. While that evidence was appropriately considered during the preliminary stay determination, that consideration would not be relevant to a determination on the underlying disputed issues relevant to the Petition.

 

99.     The Petitioners presented evidence of the potential for impact of the ejection on others. Any harm or other negative consequence that may result from the Ejection on any person or entity is found to be a legal consequence of C. Lambermont’s actions. Insufficient evidence was presented to show any harm to an interest that is protected by law. 

 

Ejection – Reasonableness.

100. The Commission has adopted a rule of reasonableness to review ejections from DNR properties under 312 IAC 8-5-3. Ronald Lambermont v. DNR, 12 CADDNAR 219 (2010).

 

101. To determine if the Ejection is to be affirmed, further inquiry is required to analyze the scope of the Ejection, including who is ejected, what is included in the Ejection, where the Ejection is to be effective and the term of the Ejection.

 

102. The Ejection identifies the names of the persons ejected: “Sugar Valley, Colton[5] Lambermont, Ron Lambermont[6], proprietors”. As it relates to the owners of Sugar Valley the Ejection is reasonable in that the 100% of the interest and ownership of Sugar Valley is on C. Lambermont, Rose and S. Lambermont.

 

103. The Ejection also states the ejection impacts the “employees, personnel, contractors and vendors of Sugar Valley Canoe Trips….” For those individuals who are in the process of actively performing as a Sugar Valley agent or representative, the ejection is reasonable. However, any time during which an employee or other personnel, contractor or vendor is not performing as an agent or representative of Sugar Valley, the ejection is overly broad and not reasonable.

 

104. The Ejection provides notice to Sugar Valley that any of its equipment found within Turkey Run would be impounded during the term of the ejection. Impoundment of Sugar Valley equipment found within Turkey Run during the period of the ejection is reasonable.

 

105. The Ejection identifies and limits the location of the Ejection to Turkey Run. The ejection from Turkey Run is reasonable given the nature of the offense and the limited geographic scope of the ejection, the park within which the activity occurred.

 

106. If the Department presented sufficient evidence to support ejection but the duration imposed is unreasonable, the Commission on administrative review may shorten the duration of an ejection.

 

107. In Petitioners’ Brief, Petitioners request consideration of the reasonableness of the one year term of the Ejection in this case in light of the Commission’s prior affirmations of one year ejections in Thomas v DNR, 14 CADDNAR 116 (2016) and Jackson v DNR, 13 CADDNAR 53 (2012), supra. The Petitioners assert in their Brief that the “seriousness of the actions of C. Lambermont in disassembling the wooden ramp boards and laying them aside in no way even comes close to the seriousness of the actions in the Thomas and Jackson cases.” Brief, p. 6. Neither of the cited cases pertain to ejection from a DNR Property for criminal mischief. However, the basis for both of the ejections were supported by the evidence presented by the Department on which the ejections were based. In this case, the evidence presented also supports an identified violation.

 

[VOLUME 15, PAGE 90]

 

108. Also in Petitioners’ Brief, Petitioners reference a case previously issued by the Commission involving C. Lambermont to support a conclusion that “the breadth and duration of a property ejection should be proportional to the severity of the incident giving rise to the ejection.” Id. at 7. The basis of ejection, in the prior case involving C. Lambermont, was C. Lambermont’s damage to a newly constructed fence located at the Cox Ford public access point at Turkey Run when he ran into the fence with his truck. In that case, C. Lambermont failed to conduct a proper damage assessment, did not report the incident to the Department and lied to investigating Conservation Officers about his involvement in the incident. The Commission upheld the ejection, but due to a lack of evidence to show that the damage was intentional, the duration of the ejection was reduced from one year to six months. Colton Lambermont v. DNR, 12 CADDNAR 215 (2010).

 

109. In this proceeding sufficient evidence was presented to support a conclusion that C. Lambermont’s actions damaged Department property and that his actions as an individual and on behalf of Sugar Valley were intentional.

 

110. Sugar Valley’s operation is seasonal. The Department’s determination to issue a one year ejection would impact Sugar Valley during peak times of operation as well as off season time frames in which the ejection would have little or no impact. The one year duration of the Ejection is deemed to be reasonable.

 

111. The Department requested an extension of the term of the Ejection in light of a Parke County Circuit Court order in 61C01-1906-PL-000184, dated June 7, 2019, for the Department to “refrain from enforcing ejectment of the Plaintiffs on [Department] property until further order of this court.”[7]

 

112. In determining if the term of the Ejection is reasonable, no consideration of a time frame during which the Parke County Circuit Court prohibited the enforcement of the Ejection is appropriate.

 

113. An “ejection or restriction shall remain in effect for not more than one year….” 312 IAC 8-5-3(c). Consistent with administrative rule, no extension of the term of Ejection is appropriate.

 

Final Order

The Notification of Ejection from DNR Property, issued by the Department on May 31, 2019, is affirmed except as noted herein: 

a         The Ejection is applicable to employees, contractors and vendors of Sugar Valley only when they are acting on behalf of Sugar Valley.

b        Reference in the Ejection to IC 35-43-1-2.1(b), cemetery mischief, is deleted.

 


[1] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.

[2] Sharon Lambermont and C. Lambermont testified on August 20, 2019 and November 21, 2019. No portion of their November 21, 2019 testimony was considered for the decision on Petitioners’ Petition for Stay of Effectiveness in that the proceeding on the stay request concluded on August 20, 2019. 

[3] It is noted that S. Lambermont on June 7, 2019, before the Parke County Circuit Court testified to be the “corporate Vice President” of Sugar Valley. Ex. A, p. 11. 

[4] Ron Lambermont did not initiate administrative review with the Commission and his interests are not addressed in this decision.

[5] The Petition states that C. Lambermont’s name is spelled “Colten.”

[6] Ron Lambermont did not initiate an administrative review. His interests are not addressed in this decision.

[7] At the conclusion of the evidentiary portion of the administrative hearing, the parties represented that case #61C01-1906-PL-000184, before the Parke County Circuit Court, is dismissed.