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Indiana Department of Natural Resources v. Prosser

Court of Appeals of Indiana

August 1, 2019

Indiana Department of Natural Resources, Appellant-Respondent,
Kevin Prosser, Appellee-Petitioner.

          Appeal from the Fulton Circuit Court, The Hon. Wayne E. Steele, Special Judge, Trial Court Cause No. 25C01-1706-MI-355

          ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General of Indiana Aaron T. Craft Deputy Attorney General Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Stephen R. Snyder Randall L. Morgan Snyder Morgan Federoff & Kuchmay LLP Syracuse, Indiana.

          Bradford, Judge.

         Case Summary

         [¶1] Kevin Prosser owns property on Lake Manitou, and, in 2015, applied to the Indiana Department of Natural Resources ("DNR") for a permit to construct a concrete seawall. Under Indiana law, a concrete seawall may only be constructed in a "developed area," which means a shoreline that has been altered in such a way as to increase its overall length. Prosser contended that a dredging operation that had occurred in 1947 or 1948 near what is now his property ("the Dredging") had increased the overall length of Lake Manitou's shoreline.

         [¶2] DNR denied Prosser's application, and he applied for administrative review. A DNR administrative law judge ("ALJ") affirmed the denial after a hearing, finding that Prosser had failed to establish that the Dredging had lengthened the shoreline of Lake Manitou. After the Natural Resources Commission adopted the ALJ's disposition, Prosser sought judicial review in Fulton Circuit Court. The trial court reversed DNR's denial of his application for a permit to construct a concrete seawall. DNR contends that the trial court erred in reversing its denial of Prosser's application. Because we agree, we reverse.

         Facts and Procedural History

         [¶3] Prosser owns two adjacent parcels located at 2920 and 2922 Country Club Drive South, Rochester, Indiana ("the Property"). The Property is on Lake Manitou, has a 117-foot shoreline, and the Dredging occurred in the area in 1947 or 1948, with the apparent intention of deepening the nearby lake bottom to allow better boat access.

         [¶4] On August 24, 2015, Prosser applied to DNR for a permit to construct a concrete seawall. DNR Assistant Director of the Division of Water James Hebenstreit reviewed Prosser's permit application and, on February 1, 2016, denied it. Hebenstreit denied Prosser's application on the bases that it was incomplete; the Property was in an "area of special concern" rather than a "developed area"; and construction of a concrete seawall would significantly affect fish, wildlife, and plant life near the site. Pursuant to the Indiana Administrative Code, seawalls constructed in an "area of special concern" are required to be made of bioengineered material and/or glacial stone, while a concrete seawall is only allowed in "developed area." 321 IAC 11-4-2(c), -2(d). One thing that qualifies as a "developed area" is a "manmade channel," which is "a watercourse created by mechanical means that connects to the lake at one (1) or more points and by its construction increases the total length of shoreline around the lake." 312 IAC 11-2-11.8.

         [¶5] On February 16, 2016, Prosser petitioned for administrative review. On February 8, 2017, an ALJ conducted an evidentiary hearing, at which former DNR surveyor Rodney Neese, Hebenstreit, and Prosser testified. Among the admitted exhibits were a series of aerial photographs taken in 1940, 1957, 1963, 1998, and 2011/2013, with the 2011/2013 shoreline superimposed onto the earlier photographs. Prosser testified that the photographs appeared to indicate that the shoreline had been lengthened by the Dredging.

         [¶6] Neese testified, however, that the line he superimposed on the photographs could be off by an unknown amount and that the time of year at which the photographs were taken (which was unknown) would affect the amount of vegetation in the lake, as well as its level. Neese opined that the length of Lake Manitou's shoreline could have either increased or decreased between 1940 and 1957. An environmental evaluation prepared on February 1, 2016, by DNR biologist Nathan Thomas was admitted as part of Exhibit 7. Thomas opined, inter alia, that "there was no definitive evidence presented to support the fact that the dredging resulted in creating additional lake frontage[.]" Appellant's App. Vol. III p. 30. Finally, Hebenstreit testified that "it's hard to tell where the legal shoreline of that lake was and whether or not [the Dredging] added or decreased the amount of shoreline frontage." Appellant's App. Vol. II p. 151. Hebenstreit opined that the Property's shoreline was an area of special concern.

         [¶7] In addition to his testimony that it appeared to him that the Dredging had increased the total shoreline of Lake Manitou, Prosser offered depositions from Joseph Mills and Douglas Sampsel, both of whom testified that they had witnessed the Dredging firsthand. Mills testified that his parents built a house next door to the Property in 1947, when he was nine years old, and that he observed the Dredging. According to Mills, when the bucket containing material dredged from the lake bottom returned to shore, it would also remove a portion of the shoreline.

         [¶8] Sampsel testified that his father had directed the Dredging, excavating the lake bottom down to a depth of five to six feet. While Sampsel testified that the Dredging could not have helped but alter the shoreline when the bucket was dragged back to shore, he also testified that "we always cleaned up the shoreline, probably taking some new soil, just to make it nice and even and straight and sloped and so ...

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