Pond, dam cause legal nightmare for couple

Scott L. Miley | CNHI News IndianaFighting for their pond: Becky and John Moriarity plan to lower the height of an earthen dam on their property following a decision by the Indiana Supreme Court. The southern Grant County couple have been in a dispute with the Indiana Department of Natural Resources over the dam and pond.

Most of the crisp, clear 34-acre pond on John and Becky Moriarity’s farm is less than 3 feet deep.

That’s enough to provide a home for thousands of fish, including large-mouth bass, catfish and koi. There are so many varieties that the Moriaritys let folks come to their southern Grant County pond for a “U-catch fish harvest” every June.

The L-shaped pond is surrounded by a sloping earthen dam which rises 21 feet above water level at some spots.

But the Indiana Department of Natural Resources has been in a water fight with John, 74, and Becky, 65, for more than a decade.

DNR says it has jurisdiction over the pond in part because the dam is more than 20 feet high, a standard under Indiana’s Dam Safety Act.

The battle went through a Grant County circuit court, the Indiana Court of Appeals and the Indiana Supreme Court, which recently affirmed the DNR’s actions.

But the Supreme Court gave the Moriaritys a way out: Remove a foot or two off the top of the dam and avoid DNR jurisdiction.

“We’ll hire a guy to come with a bulldozer with a pan and scrape it,” John Moriarity said as he and his wife of 36 years drove their GMC Yukon XL truck around the pond.

Amid numerous administrative hearings over the years, DNR has maintained there are deficiencies in the dam that should be corrected, has a combined depth and volume amounting to at least 100 acre-feet, and that streams flow into the pond, placing it under DNR jurisdiction.

The Moriaritys have lost many of the hearings.

“If you ever find yourself in administrative court, remember what old John told you — it doesn’t matter what witnesses you had or what evidence you come up with, you’re gonna lose,” Moriarity said.

But in the Jan. 3 decision, Supreme Court Justice Christopher Goff wrote, “We find, however, that the Moriaritys can, in the course of complying with the trial court’s order, modify their dam to remove it from the DNR’s jurisdiction under the Dam Safety Act.”

Goff added, “Given the parties’ unsuccessful attempts at settlement despite their apparent agreement in principle, we anticipate disagreements may arise if the Moriaritys choose to modify their dam to remove it from the DNR’s jurisdiction.”

The Supreme Court remanded the case back to the Grant County court for anticipated future litigation.

“I’m very grateful we got to the Supreme Court but as far as winning, I think we gained some ground here,” Becky Moriarity said. “I don’t know you would call it winning.”

A spokesperson for DNR said the agency doesn’t comment on pending litigation.

“We fought this thing for 19 years. ... It will still be in limbo when I’m dead,” John Moriarity said.

What’s a ‘stream’?

In the late 1990s, John Moriarity read a 1986 book, “Cadillac Desert,” detailing long-term problems created by water policies. The book is ominously subtitled “The American West and its Disappearing Water.”

Moriarity thought he could build a pond to preserve water. The spacious sock-shaped pond is protected from neighboring muddy run-off by the earthen dam. The Moriaritys started construction of the pond in 1996 and finished by 2000.

All was fine until the Grant County Commissioners wanted to extend a road through the property, requiring that the pond be drained. The Moriaritys opposed the plan.

A safety engineer for the Indiana Department of Natural Resources suggested that the county file a complaint so DNR could investigate the pond.

While building the dam, the Moriaritys contacted the Indiana Department of Environmental Management, the Army Corps of Engineers, and DNR, which did not instruct them to obtain any specific permits for the project.

Yet between 2002 and 2008, amid numerous administrative hearings, DNR issued at least three notices of violations. One notice demanded that the couple lower the water level and allow for an inspection. That order, from 2012, also fined the couple $10,000, which they paid.

“When they first came and talked to us in 2002, we said, ‘Well, we’ll just get out of this deal and lower it,’” said Becky Moriarity, who operates CARE Auto Auction near Interstate 69. “That wasn’t their idea. They wanted us to completely drain it.”

DNR has maintained that surrounding land and waterways would be threatened if the dam were breached.

“The only reason they ordered them to take down their dam to a certain height is so they could get in and inspect it and correct it,” attorney Kyle Hunter, who was then representing DNR, maintained in oral arguments this summer before the Indiana Supreme Court.

At one point, attorneys argued over the word “stream.”

In writing the Dam Safety Act, the Indiana General Assembly did not define “stream,” so the DNR drew this from a dictionary: “a body of running water flowing in a channel on the surface on the ground.”

The Moriaritys hired a college English professor to attend one meeting to offer definitions. But since she wasn’t an attorney, she was disregarded, John Moriarity said.

Although the Supreme Court affirmed previous court rulings in favor of DNR, a footnote in the decision is directed to DNR.

“With the appeal before us resolved, we pause now to comment on a broader issue implicated by this dispute. Although the DNR has largely won here, it likely could have avoided this protracted litigation in the first place by defining the word stream for purposes of the Dam Safety Act. It clearly knows how to define words for the Act ... and, as this case demonstrates, DNR employees have a shared understanding of the word stream,” Goff wrote.

“Defining the word would presumably reduce the complexity of enforcement actions and increase public confidence in the agency’s decisions,” Goff wrote.