The Respondents are ORDERED to lawfully acquire fish and provide for the restocking of Mt. Zion Millpond in Fulton County. The restocking shall be performed to conform with the foregoing findings of fact. In particular, a permit shall be secured by the Respondents, or one of them, from the Department as soon as is practicable under IC 14-2-7-22 and 310 IAC 3.1-10-8. Restocking shall cause the placement of healthy fish in Mt. Zion Millpond according to the following schedule:
(A) before May 1, 1993, 56 adult largemouth bass, 5,600 fingerling largemouth bass, and 1,400 eight-inch or larger channel catfish; and
(B) after April 30, 1993, but before August 31, 1993, 14,000 bluegill fingerlings and 14,000 redear fingerlings. The adult largemouth bass and channel catfish must have adequate gender diversity to allow for sufficient spawning to insure survival of these species.[FOOTNOTE iii]
FINDINGS OF FACT
A. ADMINISTRATIVE ORDERS AND PROCEDURES ACT: APPLICABILITY AND PERSONAL JURISDICTION OF THE NATURAL RESOURCES COMMISSION OVER THE PARTIES.
1. The department of natural resources (the "Department") is an "agency" of the state of Indiana as defined by IC 4-21.5-1-3.
2. The natural resources commission (the "Commission") is the "ultimate authority" for the department under IC 4-21.5-1-15. IC 14-3-3-21.
3. This proceeding was initiated December 31, 1992 when the Department filed an "Emergency Order" against Fulton County; Robert Herrold, Randy Sutton and Joseph Wildermuth, Fulton County Commissioners; Hornback and Stickler Construction Company; and Stewart Kline (the "Respondents").
4. Upon the filing of the "Emergency Order", Stephen Lucas was appointed as the administrative law judge for the Commission for any action which might be required.
5. The "Emergency Order" was an "agency action" from which any of the Respondents could have taken administrative review under IC 4-21.5 (the "Administrative Orders and Procedures Act" or "AOPA"). No review was taken by the Respondents, but on February 11, 1993 a "Request for An Emergency Hearing" was filed by the Department.
6. This proceeding is governed by the AOPA and particularly IC 4-21.5-4 which controls emergency and temporary orders. Of particular note is IC 4-21.5-4-2(a)(2) which applies to the issuance of any order following a hearing conducted by the administrative law judge. The hearing contemplated under that statutory subdivision was held in this proceeding on March 2, 1993.
7. The Commission has jurisdiction under the AOPA over the person of the Department and the person of each of the Respondents.
B. MT. ZION MILLPOND IN FULTON COUNTY: A PUBLIC FRESHWATER LAKE" SUBJECT TO IC 13-2-11.1.
8. The situs of this proceeding is a watercourse in Fulton County, Indiana which contains approximately 28 acres and which is commonly known as "Mt. Zion Millpond". Mt. Zion Millpond is formed by a dam on Rain Creek, the same creek which down stream feeds Lake Manitou. Mt. Zion Millpond has a maximum depth of about six feet and a mean depth of about five feet.
9. The Department is charged with the administration of IC 13-2-11.1, a statutory chapter which is designed to preserve and protect any "public freshwater lake" in Indiana. Steuben County Lakes Council v. DNR and Hoeppner, 5 Caddnar 171 (1990). See, also, Zapffe v. Srbeny, 1992 Ind. App., 587 N.E.2d 177.
10. A public freshwater lake" generally refers to any lake that has been used by the public with the acquiescence of a riparian owner". IC 13-2-11.1 and 310 IAC 62-10.
11. A "lake" is a reasonably permanent body of water substantially at rest in a depression in the surface of the earth, if both the depression and the body of water are of natural origin or part of a watercourse. Lakes normally come into existence as a result of the forces of nature. A lake may be formed, however, by damming a stream; and this body of water, even though artificially created, is a segment of watercourse and within the term "lake". Restatement (Second) of Torts, Sec. 842, Comment d.
12. A lake is an inland body of water, fresh or saline, of a size larger than a pond. A lake is generally too deep for vegetation to take root completely across the surface of the water. The term may include a widened stretch of river or a reservoir behind a dam. 6 Water and Water Rights, 528, The Michie Company, (1991).
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13. For most purposes, a "lake" and a "pond" have identical consequences, and the terms are used interchangeably. Bromberg v. Morton V. English, Inc., 64 A.D.2d 684, 407 N.Y.S.2d 584 (1978).
14. On those occasions where a distinction is based upon size, ten acres is commonly made the demarcation. An early application of this concept was in New England, where from the 17th Century, a "great pond" contained at least ten acres and was considered public domain regardless of navigability. Slater v. Gunn, 170 Mass. 509, 49 N.E. 1017 (1898).
15. Ten acres has also been set forth in Indiana legislation pertaining to the environmental protection of lakes. As particularly applicable to the regulation of public freshwater lakes, see IC 13-2-11.1-3(b). See, also, IC 13-2-2.6, IC 13-2-15, and IC 13-2-18.
16. By any of these measures, Mt. Zion Millpond is a "lake". Mt. Zion Millpond is formed by a dam on Rain Creek, a natural watercourse. Even if a size minimum has consequence, the 28 acres contained within the surface of Mt. Zion Millpond clearly distinguishes it as a lake rather than as a pond. Mt. Zion Millpond also has both sufficient depth and permanence to qualify as a lake.
17. In order to qualify as a "public freshwater lake", the lake must have been "used by the public with the acquiescence of a riparian owner". Where there is no acquiescence in public usage by a riparian owner, the lake is private and outside the jurisdiction of IC 13-2-11.1. Waikel v. DNR, 6 Caddnar 43 (1992).
18. The root of "acquiescence" is to "acquiesce". As defined by Webster's Seventh New Collegiate Dictionary, to "acquiesce'' is "to accept or comply tacitly or passively." Oran's Dictionary of Law (1983) defines "acquiesce" as "silent agreement; knowing about an action and remaining quietly satisfied about it or, by silence, appearing to be satisfied." Waikel at 6 Caddnar 43.
19. Although there is no public access site on Mt. Zion Millpond, the lake is regularly entered from an adjacent county road. Testimony was unrefuted that Mt. Zion Millpond is a popular site for ice fishing by the public, and "many people bring small car-top boats" for the enjoyment of recreational activities. Cross-examination of Robert M. Robertson, Jr.
20. No evidence was presented that any riparian owner has ever sought to prevent public usage of Mt. Zion Millpond.
21. The evidence supports a finding there has been acquiescence in the public usage of Mt. Zion Millpond.
22. Mt. Zion Millpond is a "public freshwater lake" and subject to IC 13-2-11.1.
C. DEVELOPMENTS AT THE MT. ZION MILLPOND AND DAM: THEIR ENVIRONMENTAL CONSEQUENCES AT MT. ZION MILLPOND AND AT LAKE MANITOU.
23. In early 1992, the Fulton County Commissioners determined that it was necessary to repair the dam on Rain Creek (the "dam") which forms the Mt. Zion Millpond. As early as May 8, 1992, a breach had formed in the dam; and a resultant partial loss of the county road crossing the dam had occurred. Initially the breach that formed in the dam caused one lane of the road to be closed, but in a short period of time the whole roadway had to be closed. As a result of the road closing all vehicular traffic was diverted a significant distance, causing a threat to emergency vehicles and an inconvenience to all citizens.
24. On or about May 8, 1992, the Fulton County Commissioners contracted with H. Stewart Kline & Associates, Inc., an engineering firm located at 106 South Sixteenth Street, Lafayette, Indiana, to design repairs to the dam and the roadway.
25. Designing what was needed to repair the dam was complicated because the original structure of the dam was largely unknown. The dam, in fact, used a bridge abutment placed sometime in the 1800s. In the 1960s, the adjacent county road was upgraded and a new bridge constructed, but the abutment for the old bridge continued to be used as part of the dam.
26. Also during May 1992, the Fulton County Commissioners contracted with Hornback & Stickler Construction Company, located at 1410 North Sixth Street, Monticello, Indiana, to perform repairs to the dam.
27. On approximately December 11, 1992, the boards were removed from the control structure for the dam.
28. On December 14, 1992, Stewart Kline met with Professor Graves, a Geotechnical Consultant, and Bob Grey, the Department's dam inspector assigned to Fulton County. The parties discovered the water surface of Mt. Zion Millpond had fallen between 12 and 18 inches, and this lowering of the lake allowed a better inspection of the dam. The breach was determined to be approximately three feet by three feet, running the entire length of the dam's abutment wall; and the opening of the breach was located near the southwest corner extending
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approximately 2.5 feet below the water surface of the lake at its average level.
29. During the meeting, Grey suggested that a way to make meaningful repairs and stop the breach was to de-water Mt. Zion Millpond and make repairs to the lake side of the dam. Grey suggested that once the gate was opened a temporary plywood cap on the lake side of the opening could be used to allow time for gate closure.
30. On December 15, 1992, Stewart Kline contacted the Fulton County Commissioners to schedule an emergency meeting. The Fulton County Commissioners asked that a written approval be obtained from the Department to conform to the suggestions made during the December 14 meeting of the parties.
31. On the same day, Stewart Kline contacted George Crosby of the Department to explain the situation and the previous discussions with Grey. Crosby raised a question regarding possible embankment failures due to a rapid draw down of Mt. Zion Millpond.
32. Later in the day, Crosby advised Kline that approval for any project should be sought from Michael Neyer of the Department and that a request for approval should be made in writing. Crosby suggested, that because of concerns for timing, the request could be made by a facsimile letter.
33. On December 16, 1992, a facsimile letter was sent by Kline to Neyer describing the proposed work and timetable. Respondent's Exhibit E.
34. Neyer directed the December 16 facsimile letter to a subordinate, Brian Balsley, for response. Balsley is the Head of the Lakes Permits Section for the Department.
35. On December 17, 1992, an emergency meeting of the Fulton County Commissioners was held at the site of the dam. Present at the meeting were the Fulton County Commissioners, Stewart Kline, a representative of the Hornback and Stickler Construction Company, the county attorney, the county auditor, and other citizens.
36. During the December 17 emergency meeting, the Fulton County Commissioners were advised by Kline of the problems with the dam and of communications with the Department. The Fulton County Commissioners authorized Hornback and Stickler Construction Company to perform the work recommended to them by Kline as outlined in his letter of December 16 to Neyer.
37. Despite the earlier request by the Fulton County Commissioners to Stewart Kline that approval from the Department be obtained in writing, no written approval was secured.
38. At approximately 11:00 a.m. on December 18, 1992, Balsley telephoned Kline in an effort to prevent Mt. Zion Millpond from being drained. Balsley advised Kline that the Department did not grant permission to draw down Mt. Zion Millpond as outlined in the December 18 letter.
39. During the December 18 telephone conversation, Kline informed Balsley the Fulton County Commissioners had already authorized Hornback & Stickler Construction Company to lower the lake. Kline told Balsley that the contractor was, as of that morning, "clear to do the work". Direct examination of Stewart Kline.
40. By 11:20 a.m. on the same date, Kline contacted Hornback & Stickler Construction Company, but the drawdown of Mt. Zion Millpond had already taken place.
41. Before being drained, Mt. Zion Millpond contained an estimated fish population of 300 pounds per acre. This estimation is somewhat conservative, and the actual weight per acre may have been greater. Direct examination of Robert N. Robertson, Jr.
42. As a result of the draining of the lake, 90% to 95% of the fish in Mt. Zion Millpond washed through the dam or were killed.
43. The Mt. Zion Millpond had supported two general categories of fish: "rough fish, including shad, carp, suckers, and bullhead; and "sport" fish, including largemouth bass, bluegill, crappie, and channel catfish.
44. The water remaining in Mt. Zion Millpond after draining was not capable of sustaining the "sport" fish. The fish that did remain were most probably "rough" fish.
45. Prior to the draining of Mt. Zion Millpond, the lake provided the public with an important local opportunity for recreational fishing. As a result of draining the lake, the opportunity has been immediately lost.
46. If the "rough" fish are allowed to spawn in the summer of 1993 without competition from predator "sport" fish, the "rough" fish will become dominant. This result is unnatural and undesirable and will extend the period during which the opportunity for recreational fishing is lost on Mt. Zion Millpond.
47. When Mt. Zion Millpond was drained, nutrient-rich silt and sediment were also released down stream, and some of the silt and sediment eventually reached Lake Manitou.
48. This nutrient-rich sediment has several potential detrimental effects upon the environment of Lake Manitou. The nutrients may cause Lake Manitou to become algae dominant: there will be an increase in algae, which tends to block sunlight to bottom-rooted flora and
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which can cause the flora to die. The algae also cloud the water, making feeding more difficult for fish, such as largemouth bass, which depend upon sight while foraging. An increase in algae also increases the food supply for rough fish and can cause an imbalance in the proportionate number of rough fish to sport fish.
49. The seriousness of environmental damage to Lake Manitou cannot reasonably be determined until the summer of 1993. There may be an "algal bloom" since Lake Manitou is "right on the edge" for what is considered "algal dominance". Recent improvements in the pace of utrification for Lake Manitou may have been reversed by the sedimentation and siltation from Mt. Zion Millpond. Direct of Robertson.
50. Although the environmental harm to Lake Manitou resulting from the draining of Mt. Zion Millpond is more difficult to quantify than the harm to Mt. Zion Millpond itself, the reasonable expectation is that some harm has occurred. There will likely be a diminution to the quality of fishing and other recreational purposes on Lake Manitou.
D. DRAINING MT. ZION MILLPOND: THE ORDER REQUIRED BY IC 4-21.5 (AND IC 14-3-18) TO ACT UNDER IC 13-2-11.1 WAS NOT SECURED BY THE RESPONDENTS.
51. The Indiana General Assembly declared with the enactment of IC 13-2-11.1
that the "natural resources and the natural scenic beauty of Indiana are a public right, and the public of Indiana has a vested right in the preservation, protection, and enjoyment of all the public freshwater lakes . . . and the use of such waters for recreational purposes." IC 13-2-11.1-2(a).
52. To implement the purposes declared in IC 13-2-11.1-2(a), a permitting system was established. Steuben County Lakes Council v. DNR and Hoeppner, 5 Caddnar 171 (1990). The section which has most direct application to this proceeding is IC 13-2-11.1-3.
53. As provided in pertinent parts, IC 13-2-11.1-3 provides:
Sec. 3. (a) No person may change the level of the water or the shoreline of a public freshwater lake by excavating, filling in, or otherwise causing a change in the depth...or contour of the lake below the waterline or shoreline, without first securing a written permit issued by the [D]epartment.
(b) No person may order... the ... reconstruction, cleaning, or repair of any ... dam ... which will affect, or is likely to affect, a lowering of the water level of any public freshwater lake ... that covers an area of ten (10) acres or more.
54. The AOPA establishes general notice requirements applicable to licensing processes.[FOOTNOTE i] These notice requirements indicate a legislative concern for due process, including opportunities for participation by affected persons other than the licensing agency. As applicable to permits under IC 13-2-11.1, see IC 4-21.5-35.
55. In addition to the general notice requirements contained in IC 4-21.5-3 which are applicable to license processes, the Indiana General Assembly has established pre-licensing notice requirements applicable to six regulatory programs administered by the Department. Among these six regulatory programs is IC 13-2-11.1. See IC 14-3-18-1(1).
56. Read together, IC 4-21.5-3 and IC 14-3-18 clearly demonstrate a legislative intention that licensing functions under IC 13-2-11.1 undergo a rigorous review process before the Department, with an opportunity for due process participation by interested persons, even before a written permit is issued.
57. The AOPA does recognize that contingencies can arise which require emergency action. To address these contingencies, IC 4-21.5-4 was enacted: This statutory chapter modifies notice requirements to provide "such notice as is practicable" but does not dispose of the requirement that the regulatory agency issue an "order" with a "brief statement of facts and the law that justifies the agency's decision." IC 4-21.5-4-2(b).
58. The action by the Respondents in lowering the dam and rapidly de-watering Mt. Zion Millpond clearly did not conform with the requirements of IC 4-21.5-3 and IC 143-18. This action violated both the letter and the spirit of these enactments. Even assuming that contingencies arose which could warrant issuance by the Department of an emergency order under IC 4-21.5-4, no such emergency order was ,.secured by the Respondents to this purpose.
E. DRAINING OF MT. ZION MILLPOND: STATEMENTS OF DEPARTMENT EMPLOYEES DO NOT ESTOP THE REQUIREMENT OF A WRITTEN PERMIT UNDER IC 13-2-11.1.
59. The Respondents contend that oral permission was given by two Department employees, Bob Grey and George Crosby, to drain Mt. Zion Millpond.
60. Although the Respondents do not identify their contention as being one of equitable estoppel against the Department and against the written permit requirement, in essence they are seeking the protection of equitable estoppel or a similar affirmative defense.
61. The AOPA does recognize the
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applicability, under proper circumstances, of affirmative defenses. IC 4-21.53-14(c). Although the AOPA does not identify what are affirmative defenses, Trial Rule 8(c) lists estoppel.
62. Where not otherwise inconsistent with the AOPA and 310 IAC 0.6-1, the trial rules may be applied to a proceeding before the Commission. 310 IAC 0.6-1-10. The Commission has determined that equitable estoppel may under proper circumstances be applied to the AOPA. Jaeco, Inc. v. Dept. (Div. of Recl.), 5 Caddnar 100 (1990).
63. Matters involving ministerial functions are not, however, subject to the defense of estoppel. For this reason, the Commission has found estoppel cannot be applied to negate compliance with the formal permitting requirements of IC 13-2-11.1. Manapogo Park, Inc. v. DNR, 5 Caddnar 115, affirmed by the Steuben Circuit Court, 76COl-9011-CP-507 (Dec. 30, 1991). Middletown Motors, Inc. v. Ind. Dept. of Revenue, Ind. App. 1978, 380 N.E.2d 79.
64. In addition, nothing in the record indicates that either Grey or Crosby had real or apparent authority to authorize the lowering of Mt. Zion Millpond. The only evidence concerning what Grey and Crosby said came through testimony by Stewart Kline, and Kline acknowledged that Crosby stated approval needed also to be secured from Michael Neyer.
65. Even if a ministerial function of a state agency were not involved, the evidence does not support the application of equitable estoppel. For an affirmative defense, the burden of persuasion rests with the person seeking its protection. IC 4-21.5-314(c). The Respondents have not sustained the burden in this proceeding.
66. Statements made by employees of the Department to the Respondents do not estop the requirement that a written permit be obtained under IC 13-2-11.1.
F. EMERGENCY ORDER UNDER IC 4-21.5: RELIEF TO DEPARTMENT FROM CONDUCT BY THE RESPONDENTS NOT AVAILABLE UNDER TORT LAW.
67. Wild animals, not being held under a license issued or recognized by the Department, are property of the state of Indiana. The Department has authority and responsibility for protecting and managing wild animals. IC 14-2-1-2 and IC 14-2-7-1.
68. Fish living in waters of this state are wild animals. IC 14-2-7-3(c). See, generally, Burns Harbor Fish Co. v. DNR, 5 Caddnar 198, affirmed by the Jasper Circuit Court, 37CO1-9107-CP-135 (Ap. 6, 1992) citing Furness v. Ridenour, 504 N.E.2d 336.
69. As used in IC 14-2, "waters of this state" includes "any. . . lakes that have been used by the public with the acquiescence of any or all riparian owners." IC 14-2-2-1. "Public freshwater lakes" are "waters of this state".
70. The waters of Mt. Zion Millpond are "waters of this state". The fish living in Mt. Zion Millpond are wild animals and are property of the state of Indiana.
71. The Department has authority and responsibility for protecting and managing the fish in Mt. Zion Millpond.
72. The Department has not established a basis, however, under which the Commission has jurisdiction under the AOPA to consider whether conduct by the Respondents, in draining Mt. Zion Millpond, constitutes a tort. Neither the IC 14-2 nor the AOPA appear to provide subject-matter jurisdiction to redress tortious conduct.
G. EMERGENCY ORDER UNDER IC 4-21.5: PROTECTING NATURAL RESOURCES WITHIN MT. ZION MILLPOND AND LAKE MANITOU.
73. The protection of state-owned fish living in a public freshwater lake is within the intended scope of IC 13-2-11.1. Fish are natural resources, and fishing is specifically recognized as a "recreational purpose". IC 13-2-11.1-1.
74. The AOPA authorizes the issuance of an emergency or temporary order to address an emergency arising within a regulatory program of the agency. The Department may issue an emergency or temporary order to protect the natural resources of any public freshwater lake.
75. In January 1993, the Respondents caused Mt. Zion Millpond to be returned to approximately its average normal level; and the lake has subsequently remained at that level.
76. If Mt. Zion Millpond were again drained as was done on December 18, 1992, similar detrimental effects are likely to be suffered by Lake Manitou.
77. If Mt. Zion Millpond is not restocked with predator sport fish before the rough fish in Mt. Zion Millpond spawn in the summer of 1993, the rough fish will become dominant in Mt. Zion Millpond. This result is both unnatural and undesirable.
78. If the rough fish do become dominant in Mt. Zion Millpond, the lake will have to be chemically treated and again drained in order to restore the balanced biological condition which existed before December 18, 1992.
79. The chemical of choice is rotenone, if chemical treatment is needed. Rotenone prevents oxygen from entering the gills of gill-breathing animals and causes the death of those
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animals.
80. Rotenone possesses biodegradable qualities which are largely dependent upon temperature. The lower the temperature, the more slowly rotenone breaks down. If applied during the spring, rotenone retains toxicity for several weeks at average seasonal temperatures.
81. Rotenone can be neutralized by the chemical potassium permanganate, but not all rotenone can be removed in this way in a relatively fast-moving lake such as the Mt. Zion Millpond.
82. Due to the fast-moving nature of Mt. Zion Millpond, some of the rotenone would flow down stream, killing aquatic wild animals in Rain Creek and Lake Manitou.
83. If rotenone were applied to Mt. Zion Millpond, dead fish and other gill -breathing wild animals could wash down stream. Damage to the natural resources of Lake Manitou could occur, as well as health risks and aesthetic degradation.
84. In order to prevent additional injury to Mt. Zion Millpond, immediate restocking of the Mt. Zion Millpond with predator sport fish is necessary.
85. Testimony by Robert Robertson was undisputed that the following quantities of fish need to be restocked in Mt. Zion Millpond in order to restore a biological balance:
SPECIES SIZE NUMBER
largemouth bass fingerlings (4") 5,600
largemouth bass fingerlings (at least 12") 56
channel catfish at least 8" 1,400
bluegill fingerlings 14,000
redear sunfish fingerlings 14,000
Also, there must be adequate gender diversity among the adult bass and the channel catfish to allow for sufficient spawning to insure survival of these species. The timing of restocking should be accomplished to control the spawning of rough fish.
86. These specified numbers and species of fish are or will be available in time to avoid re-draining and chemically treating Mt. Zion Millpond. Additional injury to Mt. Zion Millpond and to Lake Manitou would be prevented.
87. An emergency order should issue against the Respondents to require, according to a permit under IC 14-2-7-22 and 310 IAC 3.1-10-8,-the restocking Mt. Zion Millpond. Restocking should take place on the following schedule:
(A) before May 1, 1993, 56 adult largemouth bass, 5,600 fingerling largemouth bass, and 1,400 eight-inch or larger channel catfish; and
(B) after April 30, 1993, but before August 31, 1993, 14,000 bluegill and 14,000 redear. In addition, the Respondents should be ordered not to drain Mt. Zion Millpond except in accordance with a written permit issued under IC 13-2-11.1 and the AOPA.
88. The emergency order should be issued with a cognizance that the fish released or killed, when the dam was lowered on Mt. Zion Millpond, were state owned fish. The design of the order is, however, more particularly to mitigate harm to Mt. Zion Millpond which was caused by the Respondents when they violated IC 13-2-11.1. The genesis of the emergency order is a licensing violation and not a tort.
89. The Respondents ask in their proposed order that restocking be accomplished "through the use of the Indiana State hatcheries at no expense to the parties. " This order should not be approved. The testimony was unrefuted that adequate numbers and species of fish are unavailable in the state hatcheries to restock Mt. Zion Millpond in the spring of 1993. In addition, even if fish were available at a state hatchery, they would have both a value and a cost of production. Any cost of production must not be born by the public as a whole (nor by those persons who purchase the licenses required by IC 14-2 and help support wild animal management) but by the Respondents who acted to lower Mt. Zion Millpond without the requisite license.
90. The Department asks that the Respondents be held jointly and severally liable for the consequences of draining Mt. Zion Millpond. The Department also asks that a charge of $500 "per day for each and every violation" of the terms of an emergency order. This relief should not now be approved as it is beyond the necessary scope of this emergency order. Stated alternatively, there is no emergency which dictates that the amount of a charge be immediately identified. In addition, the culpability of the various Respondents should be considered in assessing a charge, if any need be imposed; and the nature of the emergency hearing held on March 2, 1993 does not provide for that kind of consideration.[FOOTNOTE ii]
FOOTNOTES
i. A "permit" is a form of "license", and the two terms are here used interchangeably. See IC 4-21.5-1-8 and , as applicable to IC 13-2-11.1, see also IC 14-3-18-6. The AOPA applies to any "order" of the Department, including any "license". IC 4-21.5-1-9.
ii. The arsenal available to the Department to pursue the violation of environmental standards causing harm to fish in public freshwater lakes is not insubstantial. Apart from any criminal or civil injunctive relief, at least three options are presented to seek monetary redress. In addition to a civil action in tort for the value of the fish, a civil penalty of up to $1,000 per day may be sought under the AOPA for every violation of IC 13-2-11.1-3. IC 132-11.1-16. Also, since a violation of IC 13-2-11.1 is a Class C infraction, the Department may seek the imposition of a notice of violation and $500 daily charge pursuant to IC 14-3-3-22. In applying IC 14-3-3-22, the Commission has identified factors to be considered in assessing any charge. These factors include the following:
(1) whether the initial offense was deliberate.
(2) Whether a violation continued unabated after notice by the Department.
(3) Whether the person committing the violation worked in good faith to remedy any harm.
(4) What immediate or potential harm was presented by the violation to persons, property, or the environment.
Department of Natural Resources v. Bardonner, 5 Caddnar 211 (1991).
The consideration of civil penalties or charges is thought better left to a proceeding initiated by the Department under IC 4-21.5-3. Their consideration in this emergency proceeding appears premature, from a practical perspective if not a legal one. To be recalled is that an emergency order is temporary. IC 4-21.5-4-5. How the Respondents address the emergency order may, however, be considered in any subsequent enforcement proceeding.
iii. Instead of acting as the permittee, the Respondents may seek to enter an agreement with the Department under which the Respondents finance a restocking program implemented by the Department. Any agreement reached by the parties shall provide for restocking in a manner which conforms to the technical requirements of this Order. If this option is to be implemented, the parties shall notify the administrative law judge in writing by April 15, 1993.