CADDNAR
Teska v. DNR (23-026W), 16 CADDNAR 28
Administrative Cause Number: 23-026W
Administrative Law Judge: Aaron Bonar
Petitioner Counsel: Stephen Snyder
Respondent Counsel: Rebecca McClain
Date: December 18, 2023
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER
The Department has met its burden on summary judgment. Summary Judgment is GRANTED to the Respondent. Summary Judgment is DENIED to the Petitioners.
1. On April 13, 2023, Roger L Teska, Jr., Sandra S. Teska, and Roger G. Teska (hereinafter Petitioners) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) requesting a review of the Indiana Department of Natural Resource’s (hereinafter Department) response to Petitioners’ request for a quasi-declaratory judgment regarding Petitioners’ land and riparian rights. See Petition.
2. Petitioners request a declaratory judgment acknowledging them as the owners of “land under Lake Shore Drive between their lakeward property line and within their side property lines extended to the water’s edge of Hudson Lake” and the riparian zone associated with that section of land, as well as an order that no other person may place a pier or other structure into Hudson Lake from the land associated with Lake Shore Drive. Id.
3. 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.
4. Administrative Law Judge (ALJ) Aaron Bonar was appointed under IC 14-10-2-2 to conduct this proceeding and was assigned this case on April 24, 2023.
5. A telephonic prehearing conference was set for and held on May 30, 2023. The Department requested a 30-day continuance to discuss the matter further with the Petitioners and to draft a motion to dismiss. The Petitioners did not object to this request, which was granted by the ALJ, and a future telephonic status conference was set for July 6, 2023.
6. On June 30, 2023, the Department submitted Department’s Memorandum in Support of Motion for Summary Judgment (hereinafter Memo).
7. Following the July 6, 2023 telephonic conference, Petitioners were given until July 30, 2023 to file any response to the Department’s Motion.
8. Petitioners filed their Response in Opposition to Respondent’s Motion for Summary Judgment (hereinafter Response) on July 28, 2023 with accompanying exhibits. See Response and Exhibits A-E.
9. By order issued August 3, 2023, the Department was given until August 28, 2023 to file a reply to Petitioners’ Response, which the Department timely filed (hereinafter Reply).
Summary Judgment Standard
10. A party may move for summary judgment at any time after a proceeding is assigned to administrative law judge. I.C. § 4-21.5-3-23.
11. Except with respect to service of process, governed by I.C. § 4-21.5-3-1, and the final disposition of an administrative proceeding, governed by I.C. § 4-21.5-3- 28 and 29, Trial Rule 56 of the Indiana Rules of Trial Procedure controls the consideration of a motion for summary judgment. I.C. § 4-21.5-3-23.
12. The ALJ will consider a summary judgment “as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.” I.C. § 4-21.5-3-23. Summary judgment shall be granted “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial rule 56(c); Frendeway & Bartuska v. Brase, 15 CADDNAR 121, 122 (2020).
13. The party moving for summary judgment bears the burden of establishing the party is entitled to summary judgment regardless of whether the party would have the burden of proof in an evidentiary hearing. Mueller-Brown v. Caracci, 13 CADDNAR 156, 157 (2013).
14. The burden of establishing there is no material factual issues is on the party moving for summary judgment. Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012). Once the movant has met this burden, the opposing party must present sufficient evidence to show the existence of a genuine triable issue. Id.
15. “A party opposing the motion shall designate . . . each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.” Ind. Trial Rule 56(C).
16. Summary judgment shall be granted “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id.
17. Affidavits supporting or opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Trial Rule 56(E).
Undisputed Material Facts
18. Petitioners are the owners of real estate located in LaPorte County, Indiana, commonly described as “Lots 3045-3059 and the North one-half of vacated Cherry Lane adjacent thereto in the Plat of Hudson Lake Beach….” See Petition and Exhibit A attached to Petition.
19. Between Petitioners’ real estate and Hudson Lake rests Lake Shore Drive. Petitioners believe they own the land under Lake Shore Drive in line with their landward property lines, and thus any riparian area associated with that land. See Petition.
20. From time to time, unknown persons other than Petitioners place piers and docks into Hudson Lake from the Lake Shore Drive property. Id.
21. On February 22, 2023, Petitioners requested that the Department issue a quasi-declaratory judgment outlining Petitioners’ riparian rights, stating that no other persons are authorized to use Petitioners’ riparian area, and requesting that the Department “take action” to ensure that no third party uses Petitioners’ riparian area. Id.
22. On April 6, 2023, the Department denied the Petitioners’ request and declined to issue a declaratory judgment, citing Petitioners’ failure to cite specific statutes or rules and failure to identify any other persons who may be affected by a determination of Petitioners’ request. Petitioners then initiated the current action. See Petition and Exhibit B attached to Petition.
23. The Department first argues that the Department’s authority to hold public freshwater lakes in trust for Indiana’s citizens under IC 14-26-2 does not grant the Department the ability to “determine private property rights landward of the shoreline or waterline.” See Memo.
24. In support, the Department notes that the Commission can consider landward property lines in determining riparian zones for riparian owners, but such consideration is only made in relation to established property owners and property lines. Id.
25. The Department therefore lacks the jurisdiction to establish private property rights landward of a freshwater lake, including declaring Petitioners the owners of the land under Lake Shore Drive. Id.
26. Even if the Department could declare and establish landward private property rights, there is no guarantee that such a declaration would provide Petitioners with the relief they seek. IC 14-26-2-5(e) provides that “[a] person owning land bordering a public freshwater lake does not have the exclusive right to the use of the waters of the lake or any part of the lake.” If the action in question does not impede the public trust, the Department argues, then the Department has no authority to regulate the action beyond the issuing of permits, for example. Id.
27. Further, no additional potential riparian owners were identified by Petitioners who may be at risk of losing an interest in land abutting Hudson Lake. The Department thus cannot prevent the use by such unidentified riparian owners or by other “unnamed third parties, which may otherwise be in compliance with the rules for temporary structures.” Id.
28. In addition to the arguments above, the Department argues in its Reply that, even if the Commission entertains the landward property issue raised by Petitioners, Petitioners’ action should still fail as evidence presented by Petitioners fails to establish specific deeded riparian rights were granted to individual lots, including Petitioners’ lots. See Reply.
29. Finally, the Department argues that this action is effectively a quiet title action against unknown third parties and that no evidence was provided showing that adjacent landowners were given notice of this action. “Any award of riparian rights without notice would run afoul of public policy and the public rights expressly reserved to the citizens of Indiana.” Id.
Summary of Petitioners’ Response to the Department’s Motion for Summary Judgment
30. Petitioners argue that they are riparian owners with exclusive rights to use their riparian area. Petitioners cite Irvin v. Crammond, 108 N.E. 539 (Ind. 1915) in support of their claim that, under Indiana law, Petitioners own the land under Lake Shore Drive out to the water’s edge of Hudson Lake. See Response.
31. Given this ownership, Petitioners argue that they are riparian owners as they own property abutting Hudson Lake and are thus entitled to the “bundle of rights” associated with riparian ownership, including the right to access the lake and to build and maintain a pier. Id.
32. Petitioners are also entitled to the full use of their riparian zones, including the right to bar other individuals from building and maintaining piers on Petitioners’ property without written consent. Id.
33. Finally, Petitioners argue that, “[i]n making determinations related to riparian rights and the placement of lawful piers, [the Department] and the Commission routinely evaluate landward property rights related to riparian ownership and lake easements.” Id.
34. Petitioners state that they are not asking for a declaration that they own the land under Lake Shore Drive as the Department claims; rather, Petitioners are merely asking the Department to recognize their established property and riparian rights and prohibit unauthorized third parties from building and maintaining piers on Petitioners’ property and in their riparian area.
Findings of Fact and Conclusions of Law
35. Hudson Lake is a Public Freshwater Lake located in LaPorte County, Indiana. Information Bulletin # 61 Listing of Public Freshwater Lakes (Eighth Amendment), DIN 2021020-IR-312210447NRA.
36. IC 14-26-2-5, also known as the Lake Preservation Act, provides that the State “has full power and control of all the public freshwater lakes in Indiana … [and] hold and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” See IC 14-26-2-5(d)(1-2).
37. The Commission has jurisdiction over public freshwater lakes and has the power to make administrative rules to implement relevant sections of the Indiana Code. See IC 14-10-2, 14-15-7-3, 14-26-2-23, and 4-22-2.
38. A “riparian owner” is “the owner of land, or the owner of an interest in land sufficient to establish the same legal standing as the owner of land, bound by a lake.” 312 IAC 11-2-19.
39. In general, the owner of property that abuts a lake possesses certain rights associated with ownership of that property. Bass v. Salyer, 923 N.E.2d 961, 971 (Ind. Ct. App. 2010). Those rights include “1) the right of 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 . . ..” Parkison v. McKue, 831 N.E2d 118, 128 (Ind. Ct. App. 2005).
40. Petitioners are correct that the Commission considers landward property rights when determining riparian areas and certain riparian rights, such as building and maintaining piers.
41. However, the Department is correct that this consideration stops short of establishing any new, substantive property rights, such as establishing ownership of landward property, in favor of merely evaluating pre-set, established rights disputed by relevant parties.
42. Petitioners’ Response Exhibit B is an enlarged section of the Plat of Hudson Lake Beach subdivision and accompanying plat explanatory language. Similar images and information are also included in Exhibit D.
43. Based on the plain language of Exhibits B and D, the ALJ agrees with the Department that the inclusion in the plat of language conveying “Riparian Rights thereunto belonging” refers to the entire subdivision, not each individual lot.
44. In addition, aside from affidavits containing assertions made without documentary or other substantial support, no substantial evidence, such as a deed conveying specific riparian rights to Petitioners’ lots, was submitted with Petitioners’ Response. See Exhibits A and C.
45. The question of specific land ownership and specific rights granted as a result of that ownership lies outside of the Commission’s jurisdiction and is better suited for a court of competent jurisdiction.
46. Finally, it is unclear to the ALJ what relief, if any, granting Petitioners’ request for a declaratory judgment from the Department would provide.
47. For example, if such a quasi-declaratory judgment were made, what would be Petitioners’ next steps? Posting the judgment on their alleged property to warn others? Requesting that Department conservation officers monitor their alleged property around the clock to ward off other parties from building a pier in their riparian zone? It is not clear that granting Petitioners’ request would have any substantial or tangible impact on this situation.
48. In short, the ALJ finds that the Department has met its burden of showing that there are no material facts in dispute and is thus entitled to summary judgment as a matter of law. The questions raised by Petitioners are better suited for their local court.
49. In addition, as Petitioners’ failed to identify any offending respondents regarding the placement of piers in their alleged riparian zone and failed to join any other potentially interested parties to this action, it is unclear what relief Petitioners would actually gain in real terms should this action go forward.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, has been relocated to the beginning of this document.]