Key words: 150 feet and 176 feet.
These two key words were overlooked by many with the Department of Natural Resources press release to clarify a recent “buoy” agreement reached between Anchor Holdings LLC; Randall L. Tobias; and Sargent HP LLC and the DNR.
Shortly after an article appeared reporting on the agreement reached, the agency issued a release clarifying the agreement only applied to the three property owners who sought the permit.
What was overlooked by many, was the distance from shore to the buoys the three entities wanted to install. This is the only part, which applies to the three complainants. The type of buoys and anchoring within 200 feet of shore applies to all freshwater lakes.
Contact with Joe Hoage, general counsel for the DNR, added more clarification to the matter. “The practice of riparian landowners placing buoys in the water is very common. On most waters the actual placement is conducted by contractors after piers are erected at the beginning of the boating season.
“The general license (312 IAC 11-3-1) allows placement of buoys out to 150 feet; a variance from the general license requires a permit. The claimants to the agreed order sought placement of posts and thereafter agreed to buoys beyond 150 feet. The DNR is without authority to regulate what language a private landowner posts on signage in his or her respective riparian zone.”
Basically, based on this administrative code, because the three parties requested to place buoys at 175 feet, a permit was needed. While these buoys will have such wording as “Anchoring within 200 feet of the shoreline is illegal,” any one can purchase and install such buoys without a permit as long as it is placed up to 150 feet from shore.
Yet when questioned about the mutually agreed interpretation of IC 14-26-2-4 which is limited by provisions of IC 14-15-3-17, which states what activities can occur within that 200 feet, the response was “As it has in the past, the DNR will continue to consistently enforce the laws and rules applicable to public freshwater lakes and respond accordingly.”
The mutually agreed interpretation by both parties involved is that only operation of a motorboat within 200 feet of the shoreline of a public freshwater lake is limited to those activities stated in the statute: operation of a motorboat is limited to trolling or approaching or leaving a dock, pier or wharf or the shore of the lake or channel.
“They (the DNR) will be hard pressed to deny that, but that doesn’t mean they will enforce what the legislature said is the law,” commented Steve Snyder, who represented the three parties in the original buoy permit request and request for administrative hearing.
Another question has also arisen and has been asked by Snyder to have the final order posted to the compilation of Natural Resource Commission decisions, known as “CADDNAR” Steve Lucas, director of the division of hearings for the NRC, stated “Administrative Cause No. 14-049W was a result of an ‘agreed order’ between DNR and the persons represented by Mr. Snyder. It did not follow the conclusion of a contested disposition (most commonly contested dispositions are a ruling following a hearing of the facts, summary judgement, or an involuntary dismissal.) Because the disposition was by agreement of the parties, I have not and will not submit the disposition for inclusion in CADDNAR … the “agreed order” will not be included in CADDNAR to constitute a commission precedent.”
Snyder has disagreed with that position of not including the disposition into CADDNAR and responded to Lucas stating: “IC 4-21.5-3-32 requires the indexing of “all written final orders” and does not distinguish between “agreed orders” and “contested orders.” I read the Agreed Order to be a final order of the NRC effective May 19, 2014, the date approved by the NRC. Since this order was a final disposition of the appeal of the denial of the permit (a denial “contested” by the claimants), it appears to me to be a written final order under AOPA that requires it be posted to CADDNAR. I also believe once posted, it will serve as precedent in regard to any future actions involving the same issue.”