__________________________________________________________________
SUBJECT: Part 325, Great Lakes Submerged Lands, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.
Petition of Randy Fisher
File No. 97-03-0058
___________________________________________________________________
The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision dated October 13, 1998. In a letter dated October 13, 1998, the Office of Administrative Hearings gave the Parties until November 3, 1998, to file written Exceptions to the Proposal for Decision. As of this date, neither Party has filed written Exceptions. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.
After considering the Proposal For Decision, exhibits and the Takings Assessment Guidelines, pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL 24.421 et seq.; MSA 24.421 et seq., the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the October 13, 1998, Proposal For Decision, including its Findings of Fact and Conclusions of Law.
THEREFORE, IT IS ORDERED:
1. The Proposal For Decision dated October 13, 1998, is adopted by reference and incorporated into this Final Order.
2. The application for a permit for File No. 97-03-0058 is DENIED.
3. Consistent with the Proposal for Decision, the Petitioner is entitled to a Modified Permit entered on the record as Department Exhibit 18.
4. The Office of Administrative Hearings does not retain jurisdiction in this matter
Dated: November 23, 1998
Richard G. Lacasse, Chief
Administrative Law Judge, MDEQ
Office of Administrative Hearings
_________________________________________________________________
SUBJECT: Part 325, Great Lakes Submerged Lands, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.
Petition of Randy Fisher
File No. 97-03-0058
__________________________________________________________________
October 13, 1998 Richard A. Patterson
Administrative Law Judge
This contested case involves the denial by the Department of Environmental Quality of an application for a permit filed by Randy Fisher. The activity proposed in the permit application is the construction of a permanent dock 130 feet in length and 12 feet wide on the bottomlands of Lake Superior. The dock would be constructed out of steel sheet pile back filled with 210 ½ cubic feet of sand capped with 4 inches of concrete.
The application for a permit for the above referenced activity was filed by Mr. Fisher and denied by the Department of Environmental Quality. Mr. Fisher timely filed a petition for a contested case with this Tribunal. A hearing was held in this matter on August 6, 1998 at the Department of Environmental Quality Gaylord District Office.
The contested case hearing was conducted pursuant to Part 325, Great Lakes Submerged Lands, of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended; MCL 324.30101 et seq.; MSA 13A.30101 et seq., and the administrative rules promulgated thereunder. The hearing was governed by the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560 (101) et seq.
Pursuant to the Property Rights Preservation Act, 1996 PA 101, MCL 24.201 et seq., in formulating this Proposal for Decision the undersigned has reviewed the Takings Assessment Guidelines and considered the issue of whether this government action constitutes a constitutional taking of property.
Mr. Randy Fisher (Petitioner) is the applicant for a permit and is the Petitioner in this case. He appeared in this matter in propria persona. The Petitioner testified in his own behalf and presented the testimony of Ms. Dawn Smith in support of his case.
The professional staff of the Department of Environmental Quality (Department) is charged with the day-to-day implementation of the Part 325 and is the Respondent in this case. The Department is represented by Mr. Fred Gottschalk, MDEQ, Contested Case Supervisor, Land & Water Management Division (LWMD). He presented the testimony of Ms. Joan Duncan, District Representative, LWMD, Marquette District Office.
There were 35 exhibits entered into the record. A list and description of those exhibits is attached to this Proposal for
Decision.
At the commencement of the hearing the Parties entered into the following stipulations:
1) The Petitioner is the proper applicant for a permit.
2) The activity proposed in the permit application is a regulated activity, a permit is necessary and the Department has jurisdiction.
I find these stipulations are legally correct, and I adopt them as findings. Stipulations entered into by the parties shall be used as evidence at the hearing and are binding. MCL 24.278; MSA 3.560(178); Dana Corporation v Employment Security Commission, 371 Mich 107, 110 (1963).
The Petitioner is the owner of a residence situated on a parcel of over two acres with approximately 300 feet of frontage on Lake Superior. The property is located in Christmas, Au Train Township, Alger County, Michigan. The Application for Permit was received by the Department on May 1, 1997. Department Exhibit 12. The permit application was public noticed jointly with the Army Corps of Engineers on August 21, 1997. In response to the application, Ms. Joan Duncan performed a site visit on September 19, 1997 and prepared a Project Review Report. Department Exhibit 13. In that document, under the notes and comments section she indicated, in pertinent part:
This bottomland is rocky, cobbly wave washed shore. There exists a short open timber dock already (no permit). They have a dingy there which they apparently use to get out to their boat when it is moored off shore. The longshore (sic) current here is probably substantial as there is evidence of erosion (loss of bank-trees falling, etc.) along shore. Fish Division has concern with the steel sheet pile material-requests timber.
Pursuant to the foregoing assessments, a certified letter denying the application was sent on December 9, 1997. Department Exhibit 14. That letter stated the reasons for the denial, under the provisions of 1982 AACS, R 322.1015 of the administrative rules of Part 325, as follows:
The Department finds that the adverse effects to the environment, public trust, and riparian interests of adjacent owners are not minimal and will not be mitigated to the extent possible. There is a feasible and prudent alternative to the proposed activity consistent with the reasonable requirements of the public health, safety and welfare.
The solid design of this dock will cause an interference of the longshore littoral movement, thereby creating both erosion and deposition at the shoreline. In addition, the size of this dock is excessive and occupies 1560 square feet of State-owned bottomland. The public trust in the bottomland, which provides fish habitat and recreational use, is not well served by the construction of this dock.
Based on the foregoing findings, the Michigan Department of Environmental Quality hereby denies your permit.
The Department would give consideration to an open, crib-type rock filled dock with a maximum width of 8 feet or a seasonal dock, which requires a State permit but does require a Federal permit...
Between the denial and the commencement of the contested case hearing a great deal of discussion was held between Department staff and the Petitioner. Ms. Duncan testified that to facilitate the discussions she had been on the site five times. A number of exhibits were entered into the record from those visits, including depth measurements and aerial photographs. Ultimately, on July 10, 1998, Ms. Duncan sent a "draft" permit to the Petitioner, Department Exhibit 18, which authorized an open timber crib dock using six (6) 8 foot by 8 foot timber cribs filled with natural rock (Department's proposal). The cribs were to be placed at a minimum of 8 feet apart, to allow flow through, with the first crib to be placed a minimum of 15 feet from shore and a total dock length to reach boatable water of 3 feet deep.
The Petitioner is now willing to forego a solid dock as applied for, but wants to install 8 cribs perpendicular to the shoreline 8 feet apart and a "T" at the end supported by two additional cribs (Petitioner's Proposal). This proposal is depicted in Petitioner's Exhibit A. The "T" would allow dockage of Petitioner's boat parallel to the shoreline. The additional two (2) cribs would allow for a narrower span of eight (8) feet which, Petitioner contends, would create more stability. Mr. Fisher testified his proposal is a standard design for Lake Superior and submitted a letter from Davis Construction to that effect. Petitioner's Exhibit N. In addition to the stability issue, according to Petitioner, the additional cribs would decrease costs because shorter timbers could be utilized in order to span the cribs. The cost differential between the proposals, according to the Petitioner, would be approximately $5,000.00.
The Petitioner, in summary, feels the two additional cribs would add stability and durability as well as lowering the cost. Additionally, he does not feel the "T" at the end would significantly impact the littoral drift as it would be facing lengthwise and would have no more impact than a single crib.
Ms. Duncan testified the Department's Proposal would have some impact on the littoral drift, but a design feature which allows for flow-through would alleviate much of the impact. She also testified the proposal is an attempt to balance the public trust with Petitioner's riparian rights. The analysis under the public trust doctrine for an activity proposed for the bottomlands of the Great Lakes must be reviewed in light of the applicable case law.
Michigan has adopted the landmark public trust case of Illinois Central Railroad v Illinois, 146 US 387; 13 S Ct 110; 36 L Ed 1018 (1892), in establishing the standards for the conveyance of bottomlands. Obrect v National Gypsum Company, 361 Mich 399, 105 NW2d 143 (1960). In pertinent part, the Obrect Court discussed a situation where a grant is appropriate:
...where the State has, in due form, determined that a given parcel of such submerged land may and should be conveyed' in the improvement of the interest thus held' (referring to the public trust). The other is present where the State has, in similar form, determined that such a disposition may be made "without detriment to the public interests in the lands and waters remaining." Obrect, supra p 412-413 (1960). See also, Superior Public Trust v DNR, 80 Mich App 72, 84 (1977).
Based upon the finding of fact below regarding public and private uses as it relates to navigation, I find, as a Matter of Fact, neither of the proposals pose a detriment to the public interests in the lands and waters remaining. The impact on fishing is negligible under either proposal, and no evidence was offered regarding the impact to hunting. Therefore, based on the foregoing, I find, as a Matter of Fact, the public trust on the waters remaining would not be impaired by either of the proposals.
As previously discussed, the activity proposed in the permit application is no longer at issue. Therefore, the issue becomes whether the Petitioner is entitled to a permit for the activity proposed in his proposal, or the Department's Proposal. I find, as a Matter of Fact, that consistent with the Parties stipulation, the activity proposed in either proposal is regulated and a permit is necessary. The next step is to review the two proposals under the criteria to be applied in reviewing an application found in §32502, which, in pertinent part, provides:
This part shall be construed so as to preserve and protect the interests of the general public in the lands and waters described in this section...and the private or public use of waters over patented and unpatented lands, and to permit the filling in of patented submerged lands whenever if is determined by the department that the private or public use of those lands and waters for hunting, fishing, swimming, pleasure boating or navigation or what the public trust will not be impaired...
There is no testimony on the record regarding any impact by either proposal, adverse or otherwise, on hunting or swimming. As previously discussed, there is also negligible impact on fishing. While the Petitioner's Proposal would affect more bottomland, the attendant loss of shallow water habitat demonstrates an inconsequential impact on fishing in Lake Superior. Pleasure boating, so far as Petitioner is concerned, would be enhanced as under his proposal access to his boat would be made much easier. However, the Department's proposal would not in any manner impair pleasure boating, either for the Petitioner or others.
The impact to navigation was addressed in some of the letters sent in response to the public notice. Ms. Judy Allen expressed concern over safety of snowmobilers and small craft due to "white outs" in the winter and fog in the summer. Department Exhibit 9. To the contrary a letter from Mr. Larry LeVeque, President of the Alger County Sno-Riders, stated "I do not find the proposed dock to be a concern to snowmobilers." Petitioner Exhibit J. A letter from Ms. Teresa Chase to the Petitioner states she has reviewed the possible impacts the "pier" might have to boaters navigating the waters around Grand Island and traversing the west channel entrance. Petitioner Exhibit H. Ms. Chase's letter states she found no problems due to the location of the proposal being "...well west of navigable waters." A letter from the Petitioner to the Army Corps of Engineers, although self serving, points out that there are many docks in the Munising and Grand Island area and that his dock would only span into 3 feet of water along a changing shoreline on which stumps, rocks, trees and shallow peninsulas are present. Petitioner Exhibit F.
I find, as a Matter of Fact, there will be no adverse impact on navigation by either proposal. I find, as a Matter of Fact, that either the Petitioner's Proposal, or Department's Proposal, would not substantially effect the public use of the bottomlands which would be occupied by either the cribs, or the immediate area of the cribs.
In reviewing an application for permit the Department must consider Rule 15. 1982 AACS, R 322.1015. It states:
In each application for a permit, lease, deed, or agreement for bottomland, existing and potential adverse environmental effects shall be determined. Approval shall not be granted unless the department has determined both of the following:
a) That the adverse effects to the environment, public trust, and riparian interests of adjacent owners are minimal and will be mitigated to the extent possible.
b) That there is no feasible and prudent alternative to the applicant's proposed activity which is consistent with the reasonable requirements of the public health, safety, and welfare.
Riparian owners possess, among other things, a proprietary interest in the uninterrupted flow of sand carried to their land by littoral current in its natural state. Peterman v Dep't of Natural Resources, 446 Mich 177, 196; 521 NW2d 499 (1994). Conversely, the Petitioner, as a riparian has, among other things, the right to wharfage to navigable water. Hilt v. Weber, 252 Mich 198; 233 NW 159 (1930).
Adjoining riparian owners Mary C. Edgar (Department Exhibit 10) and Patricia A. Dolan (Petitioner Exhibit L) responded to the public notice. Ms. Dolan had no objection to the project, while Ms. Edgar expressed concern over interference with the along shore currents in the area with consequences of shoreline erosion on either side of the pier. While these comments were in response to the original proposal, which is no longer at issue here, the question of neighboring riparians rights versus the Petitioner's rights must be examined.
Any potential detriment to the neighboring riparians would be minimized by the Department's Proposal, in that it will minimize the impact to littoral drift. Furthermore, the Department's Proposal allows the Petitioner wharfage to navigable waters and facilitates additional flow through. In addition, the Petitioner may, at his choosing, install a seasonal structure at the end of the dock contemplated in the Department's proposal without the need for a permit under Part 325. In so doing, the Petitioner's right to wharfage to navigable waters is enhanced, while the impact to neighboring riparians will be minimized. Therefore, I find, as a Matter of Fact, the Department's proposal is the most appropriate in balancing the respective riparian rights and mitigating the impact to the extent possible.
The only environmental effect under the two proposals being considered is the impact on the along shore current or littoral drift. The impact could have been potentially significant in that if a solid structure, as originally applied for, was constructed sand flow would be disrupted, resulting in the potential of build up on one side and depletion on the other. Petitioner Exhibit 9 and testimony of Joan Duncan. However, the installation on cribs facilitates flow-through and would substantially ameliorate that concern. No fisheries concern remains and, in fact, either proposal would "...provide good insect attachment structure and small crevices for fish and invertebrate use." Department Exhibit 5. The Alger underwater preserve, of which the bottomland involved is part, would not be impacted. Petitioner Exhibit I.
Based on the foregoing, I find, as a Matter of Fact, that neither proposal would cause adverse environmental impacts.
The Department's proposal, for the above reasons, constitutes a feasible and prudent alternative within the reasonable requirements of the public health, safety, and welfare. Therefore, I find, as a Matter of Fact, it is a feasible and prudent alternative to the Petitioner's proposal under this criteria of Rule 15.
1. Based upon the stipulation of the Parties, I conclude, as a Matter of Law, Petitioner is a proper applicant for a permit in this matter.
2. Based upon the stipulation of the Parties, I conclude, as a Matter of Law, the proposed activity will take place below the ordinary high water mark of Lake Superior, which is regulated by the Department, and a permit is required for the proposed activity under the provisions of Part 325.
3. Based upon the Findings of Fact, I conclude, as a Matter of Law, that if either activity were permitted as proposed the private use of land and water will not substantially affect the public use of those lands and waters for hunting, fishing, swimming, pleasure boating, or navigation. MCL 324.32502.
4. Based upon the Finding of Fact, I conclude, as a Matter of Law, the public trust impressed upon the waters of Lake Superior and the public interest in the lands and waters remaining will not be substantially impaired by either proposal. MCL 324.32502.
5. Based on the Findings of Fact, I conclude, as a Matter of Law, any adverse effects to the riparian interest of adjacent owners will be mitigated to the extent possible by the Department's proposal. 1982 AACS, R 322.1015(a).
6. Based on the Findings of Fact, I conclude as a Matter of Law, the environment will not be adversely affected by either of the proposed activities. 1982 AACS, R 322.1015(a).
7. Based on the Findings of Fact, I conclude as a Matter of Law, the Department's Proposal is a feasible and prudent alternative to the Petitioner's Proposal within the reasonable requirements of the public health, safety, and welfare. 1982 AACS, R 322.1015.(b).
Based upon the Findings of Fact and Conclusions of Law, it is proposed the Application for a Permit made under File No. 97-03-0058 be DENIED. It is further proposed the Petitioner be issued a permit as described in the Modified Permit entered on this record as Department Exhibit 18.
October 13, 1998
Richard A. Patterson
Administrative Law Judge
RE: Part 325 Great Lakes Submerged Lands of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.
Petition of Randy Fisher
File No. 97-03-0058
Petitioner
A Photocopy of drawing, 8½" x 11", dated 05/02/98, Randy Fisher, Alger Co., Au Train Township, Christmas MI, Lake Superior.
B Photocopy of map, 8½" x 11", South Part Grand Island, Northeast Part Au Train Northwest Part Munising, T.47N. - R.19-18W.
C Photocopy of topographical map of the area, 8½" x 11".
D Color photograph, 6" x 4", dated August 3, 1998, J.D. & N.H.
E Color photograph, 6" x 4", dated August 3, 1998, J.D. & N.H.
F Photocopy of the first page of letter, dated 02/17/98, to the Army Corp of Engineers from Randy Fisher.
G Photocopy of the second page of letter, dated 02/17/98, to the Army Corp of Engineers from Randy Fisher.
H Photocopy of a letter, dated 12/03/97, to Randy Fisher from the United States Department of Agriculture Forest Service, Teresa Chase, District Ranger.
I Photocopy of a letter, dated 12/23/97, to the Army Corp of Engineers from Peter J. Lindquist, Member, Alger Underwater Preserve Committee.
J Photocopy of a letter TO ANY CONCERNED CITIZENS ON FIVE-MILE POINT ROAD from the President, Alger County Sno-Riders, Larry LeVeque.
K Photocopy of a letter dated September 18, 1997, to Mr. John Konic, Detroit District, Corps. of Engineers from Lee Scholten.
L Photocopy of a letter dated January 5, 1998, To Whom It May Concern, from Patricia A. Dolan
M Photocopy of a letter dated January 5, 1998, to Ms. Dawn Smith from John H. Hettrick.
N Photocopy of a letter dated June 24, 1998, to Randy - Davis Construction from Ronald C. Davis.
Petitioner
O Photocopy of a letter dated May 6, 1998, to Randy Fisher from John Konik, Department of the Army, Detroit District, Corps of Engineers.
P Original drawing, 8½" x 11", dated 01/14/98, revised dock, Lake Superior, Alger County, Au Train Township, Christmas MI.
Respondent
1 Department of Transportation, Map of Michigan, folded to show a part of the Upper Peninsula.
2 Photocopy of an Interoffice Communication dated August 26, 1997, to LWMD, Submerged Lands Section; DNR, Fisheries - Dist. 3; DNR, Wildlife - Dist. 3; MUCC and History Division, from Joan Duncan, Permit Consolidation Unit, Land and Water Management Division, Lansing with attachments: Joint Public Notice dated August 21, 1997 - Applicant: Randy Fisher; Drawing and the Application for Permit dated April 28, 1997.
3 Original Groupwise Note dated December 8, 1997, from Thomas Graf to Joan Duncan.
4 Original PROFS Note dated September 15, 1997, from George Madison, MDNR-Fisheries to Joan Duncan.
5 Original Groupwise Note dated April 20, 1998, from George Madison to Joan Duncan.
6 Photocopy of a letter dated September 6, 1997, from William G. Hart, Reindeer Run Landowner to John Konik, Detroit District, Corps of Engineers.
7 Photocopy of a faxed memorandum dated January 1, 1994, from Lon and Lynn Emerick, Property Owners to John Konik, Detroit District, Corps of Engineers.
8 Photocopy of a letter dated September 18, 1997, from John Quinn to John Konik.
9 Photocopy of a letter dated September 6, 1997, from Judy Allen, Sierra Club Conservation, Chair - Central U.P. Group to John Konic.
10 Photocopy of a letter dated August 28, 1997, from Mary C. Edgar, Attorney at Law to John Konic.
Respondent
11 Photocopy of a letter dated September 7, 1997, from Mr. and Mrs. Alan B. Kloskowski to John Konic.
12 Photocopy of map, Grand Island (S) - Au Train (NE) & Munising (NW), T.47N. - R.19-18W.
13 Photocopy of Project Review Report dated September 19, 1997, name of evaluator: Joan Duncan.
14 Photocopy of letter dated December 9, 1997, from Joan Duncan to Randy Fisher.
15 Original Groupwise Note dated August 4, 1998, from Virginia Pennala, Marquette District Supervisor to Joan Duncan and a colored photograph on one side. The reverse side has three colored photographs labeled, August 3, 1998, 8:30 a.m. Conservation Officer Fitzgibbons measuring water depths in front of Randy Fisher/Dawn Smith's house. Mooring buoy visible in distance, Photos taken by Joan Duncan, Land and Water Management Division and all located in a sheet protector.
16 Three colored photographs labeled, August 3, 1998, 8:30 a.m. C. O. Fitzgibbons measuring depths and distances. Camera zoomed in for two of these photographs. The third photograph labeled, existing dock - ice or wave damage. The reverse side has three graphs, monthly bulletin of lake levels for the Great Lakes, U.S. Army Corps of Engineers, Detroit District, May 1998.
17 Six colored photographs labeled, July 23, 1998, Joan Duncan from the south (a Bay Furnace USFS Campground) looking to the Northwest; 7/23/98 Photo taken from the Bay Furnace USFS Campground looking to the Northwest (zoomed in). J.D.; 7/23/98 J.D. from the North looking Southeast - water level very low - wave washed beach - trees falling in - banks eroding - boat is moored in front of Fisher/Smith's; Fisher/Smith Site, August 3, 1998, Joan Duncan, Pilot F.M.D. Neil Harri; U.S. Forest Service Campground - public camping; Christmas - Nelson's seasonal dock.
18 Photocopy of a letter dated July 10, 1998, from Joan e. Duncan to Mr. Randy Fisher & Ms. Dawn Smith.
19 Photocopy of Cedarville Bay Water Works - Fax, dated August 5, 1998, from Bob Dunn to Joan Duncan.