CADDNAR
Crosby & Crosby Living Trust v. Mohlman & Bobay, 17 CADDNAR 4
Administrative Cause Number: 21-038W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: Mark H. Bains & Michael H. Michmerhuizen
Respondent Counsel: William W. Gooden & Olivia A. Hess
Date: May 8, 2024
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural Background and Jurisdiction
1. On August 18, 2021, Charles D. and Jill Crosby and the Charles D. Crosby Living Trust (hereinafter Petitioners) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) alleging that the boatlift Michael Mohlman (hereinafter Mohlman) maintains on the south side of his pier on Lake James encroaches on Petitioners’ riparian zone.
2. By filing their Petition, Petitioners initiated a proceeding governed by Indiana Code 4-21.5-3, sometimes referred to as the Administrative Orders and Procedures Act (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA. See IC 4-21.5-3-1, et seq.
3. Lake James is a Public Freshwater Lake located in Steuben County, Indiana. See Information Bulletin # 61 Listing of Public Freshwater Lakes (Eighth Amendment), published at DIN 2021020-IR-312210447NRA.
4. Pursuant to Ind. Code § 14-26, also known as the Lake Preservation Act, the Department holds Indiana’s public freshwater lakes in trust for the benefit of the public.
5. Under I.C. § 14-26-2-23(e)(3),[1] the Commission established a process for the resolution of disputes among persons with competing interests along the shoreline of public freshwater lakes. The Commission adopted 312 IAC 11-1-3, which authorizes a person to initiate a proceeding controlled by IC § 4-21.5 and 312 IAC 3 to resolve a dispute among riparian owners concerning the usage of an area over, along, or within a shoreline of a public freshwater lake. 312 IAC 11-3-2.
6. The Commission has jurisdiction over the parties and the subject matter of this dispute.
7. Administrative Law Judge (ALJ) Dawn Wilson was appointed under IC § 14-10-2-2 to conduct this proceeding on August 18, 2021. ALJ Wilson withdrew as ALJ in December 2021 due to her retirement from the Commission. ALJ Gamboa was appointed by the Commission to preside over this matter in January 2022.
8. On September 17, 2021 William Gooden entered an appearance on behalf of Mohlman.
9. Also on September 17, 2021 Mohlman, by counsel, filed a counter-petition against the Petitioners. In summary, Mohlman requested a determination of the Crosbys’ and Mohlman’s riparian zone boundary based on principle four of Information Bulletin #56. Mohlman further asserted a decision in this matter could impact the Bobays, who own property adjacent to Mohlman. Mohlman requested the Bobays be joined as respondents.
10. William Gooden and Olivia Hess filed an appearance on behalf of the Bobays on October 25, 2021.
11. ALJ Wilson ordered the Bobays be joined as respondents by order dated November 17, 2021.
12. The parties filed motions for summary judgment and related materials on February 23, 2023. Petitioners filed an amended summary judgment brief on March 6, 2023. The parties also filed responses and replies to the motions for summary judgment.
13. The only issue raised on summary judgment was whether principle two of Information Bulletin 56, Riparian Zones Within Public Freshwater Lakes and Navigable Waters (IB #56), published at DIN: 20220209-IR-312220025NRA should be applied to determine the parties’ respective riparian zone boundaries.
14. The Motions for Summary Judgment were denied by order dated August 28, 2023.
15. The administrative hearing occurred October 18, 2023 in the Commission Division of Hearings hearing room in Indianapolis, IN.
16. The following witnesses were duly sworn and testified at the hearing: Charles Crosby; Gary Kent; Walter David; Rosalie Koher; and Michael Mohlman. Walter David and Rosalie Koher testified remotely without objection using the TEAMS application.
17. The following exhibits were accepted into evidence at the hearing: Petitioners’ exhibits A, C, D, H, I, L, P, U, V, GG, TT, WW and HHH; and Respondents’ Exhibits 1 – 8, 10 – 12, and 14.
18. The Bobays did not appear at the hearing.
19. The parties were granted to November 20, 2023 to file post-hearing briefs. This deadline was extended to December 20, 2023 by agreement of the parties.
20. In the post-trial brief, Petitioners requested an order applying the second principle of IB #56 to determine the parties’ riparian zone boundaries.
21. Mohlman and Bobays requested that they be permitted “to maintain the status quo and continue to configure their piers, watercraft and watercraft lifts as they were configured as of the end of the 2023 lake season,” that the Mohlman not locate any watercraft, piers, etc. any farther to the south than he did in the 2023 season, and that Crosbys “maintain a navigational safety buffer of at least ten (10) feet between all piers, watercraft, seaplanes, lifts, from the farthest south point of any of the Mohlman items.” Post-Trial Brief of Mohlman and Bobay, p. 15.
Findings of Fact[2]
22. Petitioners own Lot 55 and part of the adjacent Lot 54 in the platted real estate of Lone Tree Point of Lake James (Lone Tree). Petitioners purchased the property in 2013 and started using it as a weekend/vacation property in 2015. They began residing there full-time in March 2021. See Charles Crosby testimony.
23. Petitioners’ property includes approximately 80 feet of shore-front abutting Lake James. See Id. and Exhibit 11.
24. Lot 56 of Lone Tree is adjacent to and north of the Petitioners’ property. It was owned by the Kohers from approximately 1979 to 2019. Kohers sold this property to Mohlman in 2019. See Michael Mohlman testimony, Rosalie Koher testimony. Lot 56 has approximately 50 feet of shoreline abutting Lake James. See Id. and Exhibit 11.
25. Bobays own Lot 57 of Lone Tree, north of and adjacent to Mohlman’s property. Bobays’ lot also contains approximately 50 feet of shoreline abutting Lake James. See, Crosby testimony, Mohlman testimony, and Exhibit 11.
26. In the following excerpt of the Retracement Survey prepared by Rowland and Associates (Rowland survey), Exhibit 11, Petitioners’ property appears at the bottom the survey, the Mohlman property in the middle, and the Bobay property at the top:
27. A seawall, represented above with double lines, runs along the shorefront adjacent to Lots 55, 56, and 57. See Rowland Survey, Kent testimony.
28. The dotted lines extending from the seawall into Lake James represent extension of the parties’ property boundaries into Lake James. See Id.
29. Lone Tree is a “V-shaped” plat surrounded by Lake James on the outside of the “V” with platted lots abutting Lake James. The Steuben County Beacon system shows the plat of Lone Tree as follows:
30. Mohlman’s property is highlighted in light blue. See Mohlman testimony and Exhibit 8.
31. Previous owners of the Petitioners’ property extended a pier from the shore. There is no evidence on the size or location of that pier. No pier was extended from the Crosbys’ shoreline when they purchased the property in 2013. See Crosby testimony, Koher testimony.
32. Petitioners extend and maintain an “L-shaped” pier from the shoreline near the center of Lot 55. According to the Rowland survey, the pier is approximately four feet wide as it extends approximately 28 feet into Lake James. The pier is approximately eight feet wide as it extends further into Lake James for another 23 feet. The lakeward portion of the pier, referred to as the “deck,” extends approximately 20 feet to the north from the length of the pier and is approximately twelve feet wide. See Exhibit 11.
33. Petitioners moor a pontoon boat and a speed boat on lifts attached to their pier. They also have a Sea Do lift attached to their pier. They plan to reconfigure the pier to accommodate more watercraft and to make room to dock a sea plane from the shore. See Crosby testimony.
34. While Patricia Koher and her husband occupied Lot 56 from 1979 to 2013, they consistently maintained an “L-shaped” pier from their shoreline at the same angle from the shoreline, near the property line between Lot 56 and Lot 55. The deck of the pier extended south. Although the type of watercraft moored on the pier changed over the years, Kohlers consistently maintained watercraft of various sizes on both sides of the pier. See Koher testimony and Exhibit 14.
35. A friend of the Kohers moored his speed boat on the north side of the pier. Later, the Kohers purchased a speed boat and moored it on a lift attached to the north side of their pier. Kohers maintained a Hobie Cat on a home-made stand on the south side of the “deck” portion of the pier and moored watercraft to the “run” of the south side of the pier. Koher testimony.
36. Rosalie Koher has not lived at the house since at least 2013 and visited the house no more than two times a year from 2013 to 2019. Koher testimony. Koher’s testimony as to the habitual placement of the pier, the location of the watercraft attached thereto, and the configuration of the pier is therefore limited to the time-period before 2013.
37. Mr. Koher purchased a new pier in 2019 that was approximately the same size and extended in the same manner, as the previous pier. Koher testimony.
38. After Mr. Koher installed the pier he obtained in 2019, Mr. Crosby told Mr. Koher he (Mr. Crosby) believed the pier was closer to the riparian zone boundary between Lot 56 and Petitioners’ property. According to Crosby, Mr. Koher replied that he would not moor boats on the south side of the pier. See Crosby testimony.
39. The Kohers did not have a boat lift or any other watercraft on the south side of the pier from 2015 to 2019. See Id.
40. Mohlman purchased the Kohers’ pier when he purchased their property. He widened the deck portion of the pier but did not recall if the pier was also lengthened. The pier is approximately 68 feet long with the deck portion extending twelve feet to the south. Mohlman installed boatlifts that are approximately twelve feet wide on the north and south sides of the pier’s deck. See. Mohlman testimony.
41. The changes Mohlman made to his pier resulted in the pier angling further south at the lakeward end than it did previously. See Crosby testimony, Mohlman testimony.
42. The distance between Mohlman’s lift on the south side of his pier and Petitioners’ boatlift is approximately eighteen feet. See Mohlman testimony.
43. Sometime before April 2021 Crosby installed a flagpole in the water approximately two and one-half feet south of his property line extended into Lake James. Crosby testified the riparian zone boundary should be determined by extending the onshore property boundary into the lake. See Crosby testimony.
44. The flagpole prevented the pier installation company hired by Mohlman from installing Mohlman’s pier in April 2021. Mohlman instructed the company to remove the flagpole. See Mohlman testimony and Petitioners’ Exhibit I.
45. Little evidence was presented about the Bobay’s use of their riparian zone. The Bobays added a section to their pier while this dispute was pending. Mohlman estimates the northernmost part of his boatlift on the north side of his pier is approximately ten feet from the southernmost portion of the Bobay’s boatlift, located on the south side of Bobays’ pier. See Mohlman testimony. There is no evidence as to what, if any, impact the Bobays’ use of their riparian zone has on Mohlman’s riparian rights.
46. It can reasonably be inferred from the evidence that Mohlman placed his pier in generally the same location as did the Kohers because this dispute arose only when Mohlman added a boatlift to the south side of his pier.
47. Petitioners hired Gary Kent, a professional surveyor licensed in the State of Indiana, to provide an opinion on the parties’ riparian zones. See Gary Kent testimony.
48. Kent is familiar with IB #56 and the “four numbered principles” for determining riparian zones contained within it and has testified several times in front of the Commission. See Id.
49. Kent did not conduct a survey or visit the Petitioners’ shoreline. Rather, he expanded the illustration of principle 2 as it appears in IB #56 and overlayed it on an arial image of Lots 54-58. To do this, Kent assumed that the IB #56 illustration was intended to reflect the “normal” lake-lot size of 50 feet and expanded the illustration to represent a 50-foot shoreline for each lot. See Id.
50. Kent then superimposed an outline of the geography of the lots based on the deeds to the properties. The resulting rendering was placed into evidence as Exhibit D.
51. Kent focused his analysis on four lots because the illustrations in IB #56 all include four lots. See Id.
52. Kent concluded that the shoreline of Lots 55-58 is no more undulating than the shoreline as represented in the illustration to principle 2 of IB #56. Kent testified principle two should apply in determining the riparian boundaries in this case. See Id.
53. Kent reviewed the Rowland survey after he had conducted his comparisons and believed his results were consistent with the survey. See Id.
54. The following illustration, created by Kent, shows application of all four principles of IB #56. The red lines illustrate application of IB #56 principle 4, with a line drawn to the approximate center of the overall bay.[3] The blue lines are drawn perpendicular to the shoreline as called for in IB #56, principle 3. The blue line on the right is a perpendicular from Crosby’s corner property marker whereas the magenta or purple line is drawn at a perpendicular from Mohlman’s property line. See Kent testimony, Exhibit C.
55. The yellow lines are extension of the onshore property as described in the second principle. The purple line is perpendicular to the Crosby onshore boundary. See Exhibit C and Kent testimony.
56. Kent also created a meander line along the shore, using arial photography and the known geography of the shoreline. See Id.
57. A meander line is an attempt by a surveyor to approximately locate a shoreline to create geometry to determine acreage of the property and to give geometry to an irregular line, such as a shoreline. The meander is a series of lines that reasonably approximates the shape of the shore. See Id.
58. The creation of the meander line is subjective in that surveyors may have differing opinions as to how the meander line should be drawn. See Id.
59. Kent’s meander line ran in generally the same location as the sea walls adjacent to Lots, 57 and 58. See Id.
60. Kent testified that the shoreline is approximately straight; therefore, the riparian boundaries should be determined by applying the second principle of IB #56, which contemplates extension of the onshore boundaries into the water. See Id.
61. Kent testified that the fourth principle is not relevant, because it visually does not work with the area of the lake. See Id.
62. At Mohlman’s request, Walter David of Rowland Associates measured the angles created by the intersection of property lines and the shoreline. See David testimony.
63. David created a “lake traverse line” on Mohlman’s boundary retracement survey to connect the Petitioners’ south corner property marker adjacent to Lake James to Bobays’ north corner marker adjacent to Lake James. See Id. and Exhibit 11.
64. David measured the perpendicular angles formed by the northeast corner of the Bobays’ property and the seawall that runs between the property and Lake James (angle “I”) and the angle at which the southeast corner of Lot 56 meets the seawall (and “J”). See Id.
65. The Angle “I” is 11 degrees 26 minutes. Angle “J” is 11 degrees, 44 minutes. See Id and Exhibit 12.
66. David testified that the question of whether the lake traverse line is the same as a meander line depends on when the property was platted. Very old plats would not include the geography for the property line adjacent to the water. Surveyors therefore establish a meander line to determine the geography of the property. David did not indicate when the Lone Tree plat was created. See Id.
67. David is not familiar with IB #56 and testified that surveyors cannot establish riparian zone boundaries. He also testified that surveyors cannot create meander lines. See Id.
Conclusions of Law
68. Lake James is a public freshwater lake subject to Ind. Code § 14-26-2, also known as the Lake Preservation Act (“Act”).
69. The Act places full power and control of public freshwater lakes in the state of Indiana, through the Department of Natural Resources (Department) to hold in trust for Indiana’s citizens to preserve the lakes’ natural scenic beauty and for recreation. I.C. § 14-26-2-5.
70. The Commission has adopted administrative rules to assist in the administration of the Act, found at 312 IAC 11-2.
71. The term “riparian owner” is defined in those rules as an “owner of land . . . bound by a lake.” 312 IAC 11-2-19.
72. It is not disputed that the parties are riparian owners by virtue of their ownership of lake front property within Lone Tree.
73. Indiana law recognizes that a riparian owner typically enjoys rights that include: 1) access to navigable water; 2) the right to build a pier out to the line of navigability; 3) the right to accretions; and 4) the right to a reasonable use of the water for general purposes such as boating and domestic use. England v. Ball & Arend, 15 CADDNAR 77, 79 (2019), citing Parkinson v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App., 2005).
74. A riparian owner’s right to exercise exclusive enjoyment of riparian rights is limited to the owner’s riparian zone, which is the “portion of public waters where a riparian owner has particular rights that are correlative to those of citizens, under the public trust, and exclusive of those neighboring riparian owners.” IB #56.
75. The exercise of riparian rights may not interfere with the rights of the public or of other riparian owners. Id. A pier or boatlift placed by a riparian owner in a public freshwater lake must be placed in a manner that allows for reasonable access to the lake by other riparian owners. Rehlander v. Lenzens, et. al. & Amelio, 15 CADDNAR 115 (2020).
76. The party requesting that an agency take action or asserting an affirmative defense bears the burden of persuasion with the evidence. Ind. Code 4-21.5-3-14(c); McCulloh v Day & Schramm, 12 CADDNAR 40, 43 (2009).
77. The Petitioners request a determination of their shared riparian boundary with Mohlman.
78. In his pleading, Mohlman requested a determination of his riparian zone boundary with the Petitioners and with the Bobays. In his post-trial brief, Mohlman requested that “Mohlman and Bobay and their successors in title be entitled to maintain the status quo and continue to configure their piers, watercraft, and watercraft lifts as they were configured as of the end of the 2023 season. Post-Trial Brief of Mohlman and Bobays, p. 15.
79. Bobays do not object to Mohlman’s request that Bobays continue to configure their pier and lifts as they were configured as of the end of 2023 season.
80. No determination will be made as to the common riparian zone boundary between Mohlman and Bobays.
81. Only the riparian zone boundary between Petitioners and Mohlman is under consideration.
82. The Commission is required to consider IB #56 as guidance when determining riparian disputes. 312 IAC 11-1-4. IB #56 does not have the effect of law; however, it is widely followed to provide guidance for determining riparian boundaries. England, 15 CADDNAR 77 at 79.
83. IB #56 sets forth four principles to determine riparian zones which “seek to accommodate the diverse characteristics of Indiana’s numerous public freshwater lakes. They are designed to provide riparian owners with equitable access to public waters.” The diagrams contained in IB #56 are “intended to augment and provide examples of the principle that immediately precedes it or them.”
84. The first principle is not applicable to this dispute.
85. Petitioners assert the second principle is appropriately applied to the dispute; whereas respondents argue either principle three or four applies. IB #56 provides:
Second principle: 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.
Third principle: Where the shore approximates a straight line, and where the onshore boundaries approach the shore at obtuse or acute angles, the boundaries of riparian zones are generally determined by extending a straight line at a perpendicular to the shore. If the boundaries of two owners intersect at the shore, or in proximity to but landward of the shore, the boundaries of the riparian zones may be formed by a perpendicular to the shore from the point of intersection of the onshore boundaries. Application of the third principle is most compelling where landowners in the vicinity have historically used a perpendicular line to divide their riparian zones, but the principle should not be applied where a result is to deprive a riparian owner of reasonable access to public waters.
Fourth principle: Where the shore is irregular, and it is impossible to run lines at right angles to the shore for a just apportionment, the lines forming the boundaries between riparian zones should be run to divide the total navigable waterfront in proportion to the length of the shores of each owner taken according to the general trend of the shore. If the navigable waterfront borders a lake that is substantially round or a bay that is substantially round except for its connection to the main body of the public waters, the riparian zones may be formed by running lines from each owner’s shore boundaries to the center of the lake or by. If the navigable waterfront borders a long lake or other public waters that are not substantially round the boundaries of the riparian zones may be formed by running a line through the center of the public waters, with defected lines run from each owner’s shore boundaries to intersect the centerline at perpendiculars.
If the boundaries of two owners intersect at the shore, or in proximity to but landward of the shore, the boundaries of the riparian zones may be formed by running a line from the owners’ boundary intersection to the center of a substantially round public waters or to a center point where at the cul-de-sac of a long lake. Otherwise, for a long lake or other public waters, which are not substantially round, by running a line from the intersection of their boundaries to intersect the centerline at a perpendicular.
86. There is no evidence to support a finding that Lake James is a substantially round or a long lake.
87. Principle 2 applies where the shoreline approximates a straight line and where the onshore boundaries are approximately perpendicular to this line. Principle 3 also calls for a substantially straight shoreline but contemplates the onshore boundaries meeting the shoreline at obtuse or acute angles. Principle 4 applies to irregular shorelines.
88. Kent’s determination that the shoreline approximates a straight line was based on comparing the shoreline to the diagram contained in IB #56 illustrating the second principle. This required an assumption that the diagram intended to apply to a fifty-foot shoreline. This assumption is not supported by text of IB #56. The illustrations in IB #56 are merely intended to give a pictural representation of the various principles of determining riparian zone boundaries. There is no indication the diagrams were drawn to scale or were meant to represent a certain length of shoreline.
89. Because Kent’s assumptions are not supported in the text of IB #56, his testimony is granted little weight in answering the question of whether the shoreline is approximately straight or irregular.
90. Mohlman argues that application of the “10% rule” described in Yager v. Ryan, 14 CADDNAR 50 (2016), would show the onshore boundaries approach the shoreline at obtuse or acute angles.
91. The Commission made the following finding of fact in Yager, a riparian rights dispute:
Neese [head surveyor of the DNR Division of Water] has determined that no shoreline is exactly perpendicular, meeting the onshore properties at exactly 90 degrees at all points of contact. Therefore, when Neese calculates the degree at which the onshore property boundaries meet the shoreline, he uses a 10% rule. If Neese finds the angle, at which the onshore property boundaries meet the shoreline, to be within 10% of 90 degrees, he concludes that the onshore property boundaries are approximately perpendicular to the shore. If he finds the angle to be beyond 10% of 90 degrees, Neese concludes that onshore property boundaries meet the shoreline at an acute or obtuse angle.
Id. at 52.
92. The Commission also found that Neese calculated a meander line which enabled him to determine the degree of the angle of the shore to the onshore property boundaries created an approximately 90% angle. Id. The Commission also detailed the method employed by Neese in making those measurements.
93. Mohlman points to no previous decision of the Commission that adopts Neese’s “10% rule” as a legal principle to be applied to riparian disputes. Further, even if the rule were to be adopted, David did not follow the procedure explained by Neese in Yager. David did not establish a meander line and did not fully explain how he determined the angles which he measured. Therefore, David’s testimony is likewise assigned little weight.
94. More compelling here is the evidence presented at the hearing as to the locations and configuration of the respective piers. The Kohers and the Mohlman placed the pier in the same location and in roughly the same configuration until Mohlman included a boat lift on the south side of his pier, the action which gave rise to this dispute.
95. As seen from Exhibit C, the piers appear to have been placed perpendicular to the shoreline, which indicates the parties assumed a riparian zone boundary drawn perpendicular from their shoreline.
96. “Application of the third principle is most compelling where landowners in the vicinity have historically used a perpendicular line to divide their riparian zones.” See I.B. #56.
97. The riparian boundary dividing the Petitioners’ and Mohlman’s riparian zones is formed by a perpendicular to the shore from the point of intersection of their onshore boundaries consistent with principle 3 of IB #56.
98. Mohlman requested Petitioners be ordered to maintain a navigation safety buffer of at least ten feet between all piers, watercraft, seaplanes, lifts, or the like from the farthest south point of any of the Mohlman items.
99. The Commission has routinely ordered that a buffer between piers and moored boats is necessary for safe navigation. N.G. Hatton Trust v. Young & Pfieffer, 14 CADDNAR 76, 80 (2017).
100. I.B. #56 provides that ideally there should be ten feet of clearance on both sides of the dividing riparian line, for a total of twenty feet of clear space. At minimum, a total of ten feet of space that is clear of piers and moored boats is typically required. Id.
101. Unless there are compelling reasons to hold otherwise, the burden of maintaining a clear space is shared by the adjacent owners. Mohlman’s request could potentially place the burden of maintaining clear space solely on Petitioners. Absent compelling evidence to require this of Petitioners, the burden of maintaining a clear space of ten feet will be shared equally be Petitioners and Mohlman.
Final Order:
103. No determination of the riparian zone boundary between Mohlman and the Bobays is made.
104. Petitioners are required to maintain a buffer zone of five feet south of the riparian zone boundary with Mohlman and any piers, moored watercraft, and boat lifts. The buffer zone must also be free of any craft, including sea planes, maintained from the shore.
105. Mohlman is required to maintain a buffer zone of five feet north of the riparian boundary with Crosby. No portion of a temporary structure, including watercraft moored to or boatlifts attached to, the temporary structure. The buffer zone must also be free of any craft, including sea planes, maintained from the shore.