In re the Change to the Established Water Level of Lake of the Woods

822 N.E.2d 1032, 2005 Ind. App. LEXIS 225, 2005 WL 407223
CourtIndiana Court of Appeals
DecidedFebruary 22, 2005
DocketNo. 50A03-0405-CV-207
StatusPublished
Cited by8 cases

This text of 822 N.E.2d 1032 (In re the Change to the Established Water Level of Lake of the Woods) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Change to the Established Water Level of Lake of the Woods, 822 N.E.2d 1032, 2005 Ind. App. LEXIS 225, 2005 WL 407223 (Ind. Ct. App. 2005).

Opinion

OPINION

BAILEY, Judge.

Case Summary

Appellant-Petitioner Lake of the Woods Property Owners Association (the "Association") appeals the trial court's dismissal, after remand, of its petition pertaining to the water level of Lake of the Woods, a natural public freshwater lake located in Marshall County, Indiana. We affirm.

Issues

The Association raises four issues on appeal, which we consolidate and restate as:

I. Whether the trial court committed \ reversible error on remand by reappointing the same panel of viewers that had decided the original action to determine whether the Association's petition was practical and of public need;
II. Whether the trial court's strict adherence to the procedures enunciated by another panel of this Court in Lake of the Woods v. Ralston, 748 N.E.2d 396, 404 (Ind. Ct.App.2001), trans. demied, deprived the Association of its due process rights under the federal and state constitutions; and
Whether the trial court erred by dismissing the Association's petition pursuant to Indiana Code Seetion 14-26-8-19 because the viewers' final report contained facts that were arbitrary, capricious, il-IIL. [1036]*1036legal, or unsupported by sufficient evidence.

Facts and Procedural History

In a prior appeal, another panel of this Court summarized the relevant facts as follows:

In 1999, the Association filed its petition to request a change in the established water level of Lake of the Woods. The parties agree that the Association, which is made up of approximately 223 members who possess a freehold interest in real property upon or within 1/4 mile of the shoreline of the lake, is authorized to file the petition pursuant to Ind.Code § 14-26-8-3.[1]
The surface elevation of the lake was first set in 1948 at 808.85 mean sea level datum (MSLD). Litigation over the surface elevation resulted in a 1992 settlement agreement adopted by and made the order of the Marshall Cireuit Court. The court's order retained the 808.85 MSLD elevation during the portion of the calendar year commencing May 15th and ending September 15th and required the lake to be drawn down a foot to a 802.85 MSLD elevation during a period beginning September 15th and ending on May 15th.
In its petition, the Association alleged that significant changes to the lake had occurred since the 1992 settlement. These alleged changes included the construction of sanitary sewers at all homes on or near the lake, increased value of lakefront property, increases in recreational use, and a decrease in the intensity of agricultural activity on the lowest elevation property. The Association also alleged that lowering the water level during the winter season "is detrimental to ... fish and wildlife resources that depend on the lake, and materially diminishes the property values of lake area community property owners." The Association sought to maintain the 803.85 MSLD elevation throughout the year, a change in procedure that it alleged would need no construction work. A remonstrance was filed in response to the petition by certain individuals with agricultural interests and also by certain individuals owning land within the watershed of the lake, but not within 1/4 mile of the shoreline. A remonstrance was also filed by the Board of Commissioners of Marshall County. The Association does not question the authority of the remonstrators to challenge its petition.
The trial court appointed two viewers, the County Surveyor and a representative of the Department of Natural Resources (the "government viewers"), pursuant to Ind.Code § 14-26-8-8, and two additional viewers, reputable free[1037]*1037holders who were Marshall County residents (the "citizen viewers"), pursuant to Ind.Code § 14-26-8-9. The trial court also issued an order that prohibited either the Association or the remon-strators from initiating contact with the viewers without permission of the court. After inspecting the lake and adjoining property, the viewers ultimately issued an amended final viewer's report. The report set forth the history of prior determinations pertaining to the water level and the types of evidence that the viewers found to be relevant to their present determination. In the report, the viewers stated that they "visited the lake and inspected the water level control structure, tributary ditches, and a number of tile inlets." The report also stated that "[the DNR representative] subsequently met with representatives of the Divisions of Soil Conservation and Fish and Wildlife to discuss the possible impacts of the proposal on the lake ecosystem and the natural resources of the lake." The report further stated that the viewers "reviewed the United States Geological Survey water level records for Lake of the Woods for the period from 1945 through present."
The viewers found that many tile inlets upstream of the lake were below the 803.85 MSLD elevation. They concluded that a permanent water level of 803.85 MSLD would be injurious to farmers and others who have drain tiles discharging into the drains that feed into the lake and that some tile outlets would be permanently underwater at the higher level. They also concluded that the higher level would have a detrimental effect on the roads around the lake. They further concluded that "(while some [DNR] professionals believe there may be positive ecological benefits to maintaining the higher lake level year around, a more thorough understanding of lake ecology and hydrology would be necessary to make a more accurate determination of potential effects."
The viewers filed their report with the trial court pursuant to Ind.Code § 14-26-8-18. The trial court then dismissed the Association's petition pursuant to Ind.Code § 14-26-8-19, which provides that the court shall dismiss the petition if the viewer's report indicates that the work proposed therein is "not practicable and of public need." At no time was the Association given an opportunity to (1) present written evidence in support of its petition to either the trial court or the viewers or (2) make its objections known to the viewers.

Ralston, 748 N.E.2d at 398-99 (internal citations omitted).

On its first appeal, the Association argued that Indiana Code Section 14-26-8, as interpreted by the trial court and the viewers, resulted in the denial of the Association's petition without the benefit of the protections set forth in the Due Process Clause of the Federal Constitution and the analogous Due Course of Law Clause of the Indiana Constitution. In particular, the Association contended that it was denied due process because it was neither allowed to present evidence in support of its petition nor to cross-examine adverse witnesses.

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822 N.E.2d 1032, 2005 Ind. App. LEXIS 225, 2005 WL 407223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-change-to-the-established-water-level-of-lake-of-the-woods-indctapp-2005.