1. Prologue: The Public Trust Doctrine¹

In 1997, the Coastal States Organization described the "public trust doctrine":

The origins of the public trust doctrine are ancient and traced "to the sixth century Institutes and Digest of Justinian, which collectively formed Roman civil law."³ The best-known application of the public trust doctrine has been for navigable waters. Even before Indiana achieved statehood, the Northwest Ordinance of 1787 recognized the public interest in our territory's navigable waters. The ordinance declared:

Without using the phrase "public trust doctrine", Indiana's high courts have long recognized the concept. In 1918, for example, the Indiana Appellate Court found the state held the bed of Lake Michigan in trust for the people.⁴ Several courts have addressed the public interest in navigable waters, including a 1950 decision holding that the test of navigability was whether a river or lake was capable of commercial navigation when Indiana was admitted to statehood in 1816. The West Fork of the White River in Morgan County was found to be legally navigable, and the sand and gravel within the bed of the river to be assets of Indiana citizens.⁵

In 1947, the Indiana General Assembly extended environmental protections to Indiana's "public freshwater lakes".⁶ Although there are important statutory exceptions, a "public freshwater lake" is generally any "lake that has been used by the public with the acquiescence of a riparian owner".⁷ Public freshwater lakes may or may not meet the judicial test for navigability. Examples of public freshwater lakes include Cedar Lake in Lake County, Pine Lake in LaPorte County, Bass Lake in Starke County, Lake Maxinkuckee in Marshall County, Lake Wawasee in Kosciusko County, and Lake James in Steuben County. The statutory chapter that provided for the protection of "public freshwater lakes" is commonly called the "Lakes Preservation Act". This act provides the state has "full power and control of all the public freshwater lakes" and holds and controls "all public freshwater lakes in trust for the use of all citizens of Indiana for recreational purposes".⁸

In 2001, the Court of Appeals of Indiana reflected that the Lakes Preservation Act was "[p]ublic trust legislation" intended to recognize "the public's right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes." The Court observed that "Riparian landowners. . .continue to possess their rights with respect to a public freshwater lake, but their rights are now statutory and must be balanced with the public's rights."⁹ In 2005, the Court of Appeals indicated the rights of riparian owners along public freshwater lakes were equivalent to those of riparian owners along navigable waters.¹⁰

The Indiana General Assembly has assigned regulatory responsibility to the Department of Natural Resources with respect to both navigable waters and public freshwater lakes. The Department has "general charge" of the state's navigable waters¹¹ and is the licensing authority for navigable waters¹². The Department is the regulatory authority for public freshwater lakes.¹³ For both these categories of public waters, the Department is also the state agency with primary responsibility for administering boating laws.¹⁴Amendments made to the Lakes Preservation Act in 2006 clarify that its provisions and those of the boating laws are to be coordinated.¹⁵

An essential element in the Department's analyses for administering its responsibilities, for navigable waters and for public freshwater lakes, must be an appropriate consideration of the public trust doctrine. The agency shall seek to achieve a fair balance among competing users, both public and private. This information bulletin seeks to bring attention to these responsibilities and to acknowledge a new focus on the public trust. In particular, the Natural Resources Commission reflects upon the import of a work group process that began in 1997 and resulted in 2000, 2003 and 2006 legislation. A new Lake Management Work Group was authorized by 2006 legislation.

2. Citizens and Legislators Seeking Solutions: the Indiana Lakes Management Work Group

In 1997, the Indiana General Assembly enacted legislation¹⁶ to form the Indiana Lakes Management Work Group. The work group included 26 members chosen from a broad base of lakes organizations, users, and researchers. Also included were Senator Robert Meeks (R-LaGrange), Senator Katie Wolf (D-Monticello), State Representative Dennis Kruse (R-Auburn), and State Representative Claire Leuck (D-Fowler). The work group was directed to do the following:

Upon completion of its proposed solutions, the work group was to make those solutions available in writing to the Natural Resources Study Committee, the Department of Natural Resources, and the public.

The mission statement for the work group offered a perspective harmonious with the public trust doctrine. "The mission of the Indiana Lakes Management Work Group" was "to develop solutions to problems facing Indiana lakes--solutions that result in:

The work group met 24 times between 1997 and 1999 and adopted 113 recommendations in 48 categories to help implement these solutions. Several of the recommendations anticipated new legislation, sometimes with the need for subsequent rule adoption by the Natural Resources Commission. Others sought renewed focus upon existing legislation. Those that resulted in new legislation, and the rules to assist in implementing the legislation, are discussed next. To be noted is that each of the 48 categories was a consensus document approved by diverse user interests. The resolutions and resulting legislation share a commonality in seeking to protect our great natural resources and in seeking to assure fair enjoyment among competing users. They support the principles of the public trust doctrine.

3. Work Group Resolutions Advanced: 2000 Legislation, 2003 Legislation and 2006 Legislation, with Resulting DNR Programs and NRC Rule Adoptions

Legislation was enacted in 2000,¹⁸ 2003¹⁹ and 2006 ²⁰ in response to the efforts of the Indiana Lakes Management Work Group. The work group categories of recommendations and pertinent new legislation, programs, and rules are considered:

Category 3

During the September 28, 1999 meeting, the work group approved the following issue and problem statement with recommendations:

The work group noted the then current state statute restricted boat speeds to ten miles per hour within 200 feet of public lake shorelines. A further reduction to speeds in shallow waters would promote "safer use of those waters by canoes, sailboards, and anglers. Due to the plowing effect of boats with large drafts," a ten-mile per hour speed could "increase rather than decrease the intensity of waves generated by the boat wake. Therefore, minimizing damage to shorelines and other aquatic resources can only be guaranteed by instituting a standard that reduces wake and wash, such as implementing a no-wake or idle speed standard." A recommendation of the work group was that the ten-mile per hour speed limit within 200 feet of a lake shoreline be changed to an idle speed limit.²⁰

Legislative Response to Recommendations in Category 3

For most lakes, the Indiana General Assembly reduced the maximum speed, at which a person may lawfully operate a motorboat within 200 feet of the shoreline, from ten-miles per hour to idle speed.²¹ "Idle speed" means the slowest possible speed, not exceeding five miles per hour, that maintains steerage so that the wake and wash created by the boat is minimal.²²

Category 20

During the May 19, 1999 meeting, the work group approved the following issue and problem statement with recommendations:

The work group recommended:

Legislative Response to Recommendations in Category 20

With the enactment of P.L.233-2003, the Indiana General Assembly increased the boat excise tax, on a graduated basis, for boats valued at more than $1,000. Indiana began collection of the increased taxes on January 1, 2004. The Legislative Services Agency estimated total additional revenues of approximately $2,500,000.²⁴ Pursuant to IC 6-6-11-12, one-third of the total revenues from the boat excise tax (roughly $1,200,000 annually) are deposited in the "conservation officers marine environment fund". The Department of Natural Resources is to "expend the money in the fund exclusively for marine enforcement efforts associated with recreational boating on Indiana waters", including support for the "special boat patrol needs fund" in an amount not to exceed 20% of total in the marine environmental fund.²⁵ The Department was to develop a formula for the distribution of grants through the special boat patrol needs fund to counties based on the number and size of lakes located in a county, the extent to which law enforcement is provided on the lakes by the county, and "[a]ny other pertinent factor".²⁶ This legislative response is also pertinent to the recommendations discussed later in Category 34.

Department of Natural Resources Implementation of Legislative Response to Recommendations in Category 20

The Department's Division of Law Enforcement identified priorities for enhanced boating enforcement. These included assistance in the administration of the "special boat patrol needs fund". With the Conservation Officers Marine Enforcement Fund ("COMEF"), moneys are distributed for marine patrol assistance grants, boating safety education, marine law enforcement and implementation of the state waterway marking system. Acting through its Sheriff, an Indiana county with special boat patrol needs may seek marine patrol assistance grants. To be eligible, a county must regulate boating activities exclusively in conformance with Indiana statutes and Natural Resources Commission rules. At least one representative from a participating marine patrol may be required to attend the Division of Law Enforcement's annual Marine Patrol Conference. Each marine patrol officer is required to be current in CPR and advanced first-aid training. Also, each new marine patrol officer must successfully complete the Indiana Boating Education Course. Training costs may be included in a county's grant application.

Category 21

During the September 28, 1999 meeting, the work group approved the following issue and problem statement with recommendations:

The work group recommended:

Legislative Response to Recommendations in Category 21

The Indiana General Assembly enacted IC 14-26-2-23 to implement the recommendations in Category 21. As enacted in 2000 and until amendments made in 2006, this statutory section provided:

Natural Resources Commission Rules to Implement Legislative Response to Recommendations in Category 21

Rules to address construction within and along the shorelines of public freshwater lakes already existed before the 2000 statutory reforms. These were called into question by the Department of Natural Resources v. Town of Syracuse decision that was at the heart of Recommendation 21. Included in the rules were a general license for temporary piers that meet specifications designed to minimize the likelihood of harm to the environment and the public trust.²⁹ With the enactment of IC 14-26-2-23 to clarify agency jurisdiction over temporary structures, the Natural Resources Commission reconsidered the rules but found them to be generally sufficient. The Commission did adopt new rule provisions to help implement the mediation process required by the legislation.³⁰

Category 26

During the July 28, 1999 meeting, the work group approved the following issue and problem statement with recommendations:

The work group recommended:

Legislative Response to Recommendations in Category 26

The Indiana General Assembly amended IC 14-15-7-3(a) by authorizing the Natural Resources Commission to adopt rules for the following purposes:

Natural Resources Commission Rules to Implement Legislative Response to Recommendations in Category 26

The first stage to implementing this legislation was the Commission's incorporation of IC 14-15-7-3(a)(6) into a recodification process for all the state's special boating rules. This stage was an acknowledgement of the new authority but made no substantive changes.³¹

The second stage was the adoption of rules to establish a process for reviewing petitions to establish a licensing requirement under IC 14-15-7-3(a)(7) for fishing tournaments on a designated river or lake. The rules authorize a petition to be filed with the Commission by the County Executive where the waters are located, the Municipal Executive for the municipality if the waters are located in a municipality, or a Deputy Director for the Department of Natural Resources. Unless a river or lake is designated through this process, a licensing requirement does not apply for fishing tournaments held on public rivers or lakes. Similarly to the first stage, the second stage made no substantive changes. In other words, no new waters were designated for regulation.³²

The third stage was the adoption of rules to protect designated wetlands on Lake Wawasee and Syracuse Lake in Kosciusko County. This stage followed requests by the Wawasee Area Conservancy Foundation, the Lake Wawasee Property Owners Association, and the Syracuse Lake Association to establish special watercraft zones to protect these fragile resources. Amendments made to 312 IAC 5-6-6 established idle speed zones for the protection of major wetlands on Lake Wawasee and Syracuse Lake, as well as two small zones where boats were prohibited on Lake Wawasee.³³ Following another citizen's group request, the Commission in 2005 provided at 312 IAC 5-6-5.5 similar protections for wetlands on Lake Manitou in Fulton County.

The fourth stage was rule adoption pertaining to two aspects of the 2000 statutory amendments. First, new standards were provided for the management of major organized boating activities on public waters. A "major organized boating activity" is generally one that involves more than 15 participating boats, more than 50 spectators, a prearranged schedule of limited duration, or is reasonably expected to significantly disrupt boat traffic.³⁴ Examples of a "major organized boating activity" include fireworks displays, flotillas, and regattas.³⁵ Second, amendments were directed to fishing tournaments. There were several adjustments and clarifications to the rules described in the second stage, and on-site standards were developed for fishing tournaments on Lake Wawasee and Syracuse Lake.³⁶ As observed by the Commission's hearing officer, they represented "a final stage in implementation of the 2000 reform legislation. The current amendments are also a logical outgrowth of the values represented by the public trust doctrine."³⁷

Category 34

During its November 18, 1999 meeting, the work group approved the following issue and problem statement with recommendations:

The work group recommended:

Legislative Response to Recommendations in Category 34

The enactment of P.L.233-2003 was outlined previously in the consideration of the recommendations in Category 20. As requested by the work group, the legislation retained existing funding for the Lake and River Enhancement ("LARE") program as provided by statute.³⁸ Revenues provided for the new "conservation officers marine enforcement fund" were discussed previously in this information bulletin in the consideration of Category 20.

The third and final element of recommendations in Category 34 is funded in P.L.233 through amendments to IC 6-6-11-12.5(b)(2). In an augmentation to the LARE program, funding is provided for "lake projects, including projects to: (A) remove sediment; or (B) control exotic or invasive plants or animals." As with the "conservation officers marine enforcement fund", Indiana began the collection of increased taxes on January 1, 2004. These were projected to produce approximately $1,200,000 annually for the removal of sediment and the control of invasive species.

Department of Natural Resources Implementation of Legislative Response to Recommendations in Category 34 Regarding Sediment Removal and the Control of Exotic Species in Lakes

As provided in IC 14-32-7-12(b)(7), IC 15-9-4-3(c) and IC 6-6-11-12.5(b), the LARE program is administered by the Director of the DNR. The Director has delegated administrative responsibilities to the LARE Program Office within the DNR's Division of Fish and Wildlife.

4. Informal DNR Lake Management Work Group

At the expiration of the statutory authorization for the Lake Management Work Group, several of the original participants, as well as additional citizen volunteers, met informally under the auspices of the Department of Natural Resources. Amendments made to IC 14-26-2-23 by P.L.152-2006, SEC.3, were attributable, in part, to their efforts. During an October 2002 meeting of the informal Work Group, concern was expressed about the remaining uncertainty for Department authority to regulate structures, which functioned as seawalls, but that were placed landward of a lake's shoreline.

Responsive to these concerns, amendments were made to IC 14-26-2-23 to address a number of issues, including walls placed outside a lake's shoreline. With respect to this issue, the new language provided that jurisdiction of the Department of Natural Resources was extended ten feet landward of the shoreline in order to regulate the construction of a wall whose lowest point would be below the elevation of the shoreline.

Additionally, the 2006 amendments sought to coordinate existing regulatory authorities by bringing multiple licensure requirements into Section 23 and by cross-referencing the boating standards of IC 14-15. Contractors were made jointly responsible with landowners for compliance with licensure requirements. The Department was authorized to require common use of a pier or similar lake facility if needed to accommodate the needs of multiple owners of the same property. The amendments also clarified that the licensure provisions had direct application to piers, boat stations, platforms, and similar structures.

With the amendments of P.L. 152-2006, IC 14-26-2-23 provides:

5. New Lake Management Work Group

In 2006, the Indiana General Assembly enacted legislation³⁹ to form a new Indiana "Lake Management Work Group". Again, the work group includes 26 members chosen from a broad base of lakes organizations, users, and researchers. Included were Senator Robert Meeks (R-LaGrange), Senator Earline S. Rogers (D-Gary), State Representative Richard "Dick" Dodge (R-Pleasant Lake), and State Representative Earl Harris (D-East Chicago). The work group is to address "problems and issues associated with lakes that meet the definition of a public freshwater lake under IC 14-26-2-3." The work group is directed to do the following:

At the time of the First Amendment to Information Bulletin #41, the new work group was in an organizational stage.

6. Epilogue: The Public Trust Doctrine

The 2000 statutory reforms were the result of consensus resolutions from citizens with diverse interests in the use of our lakes. These resolutions were developed through legislation applying flexible management approaches that consider diverse interests. The Department of Natural Resources is implementing new programs, and the Natural Resources Commission has adopted complete sets of rules, to help implement the legislation. The resolutions, legislation, and rules provide direction and a legal foundation, but they do not make the public trust doctrine work.

Other regulatory mechanisms must assist. For example, in 2001 the Commission adopted rules to help assure construction activities on Lake Michigan are supportive of the public trust doctrine:

Adequate service to the public trust is dependent upon more than new regulatory structures and new state funding sources. Category 24 of resolutions from the Indiana Lakes Management Work Group addressed the need for increased public access to our public waters:

Since 1953, the Department of Natural Resources (or an antecedent agency, the Department of Conservation) has provided access to public waters through the statewide Public Access Program. This program focused initially on inland lakes, but it has since expanded to Lake Michigan, navigable rivers and streams, and publicly-funded reservoirs. State funding is provided primarily through the purchase of noncommercial fishing and hunting licenses for which fees are deposited in the Fish and Wildlife Fund.⁴¹ Under the Sport Fish Restoration Act of 1950, up to 75% of State funding is eligible for reimbursement by through the U.S. Fish and Wildlife Service. Following the Wallop-Breaux amendments to the SFRA, States are required to spend at least 15% of SFRA funding on boating access to public waters.

The Department's Division of Fish and Wildlife manages 238 public access sites and 21 public fishing areas. In addition to maintaining these sites, the management plan for 2003 through 2008 calls for the acquisition, annually, of eight new access sites or fishing areas.

In August 2002, Indiana joined states participating in the national Coastal Zone Management Program. This program provides new opportunities for improving public access to waters in the Indiana Coastal Zone, an area including roughly the northern halves of Lake County and Porter County and the northwestern third of LaPorte County. Improved public awareness of competing public uses, and how to accommodate them, is also critical to effective management of the public trust. The Department of Natural Resources is developing a website where citizens can identify when fishing tournaments, boat races, fireworks displays, and similar activities are scheduled on our public waters. This site can serve to attract persons who are interested in a scheduled lake activity, and it can help redirect them to another lake when their interests differ.

Much depends upon mutual respect for the interests of competing users. A gratifying product of public participation in rules for Lake Wawasee and Syracuse Lake was a new sense of understanding and cooperation among a variety of interests. Homeowners, sailboat racers, fishing tournament sponsors and competitors, and fishing enthusiasts opened dialogues that only a few months ago seemed impossible. During the final stage of rule adoption for fishing tournaments and other organized boating activities, there was a genuine consensus.

The rights of citizens to fully enjoy our public waters will continue to present new challenges as the population grows and improved financial circumstances support more travel and more varied uses of those waters. Solutions must consider a social and environmental equation that is dynamic. Mutual interests can be properly served only by wisely managing the public trust to ensure the enjoyment of those waters for the present and for the future.

________________

¹ The original information bulletin was adapted, in part, from "Competition for Lakes and Rivers: Recent Indiana Legal Reforms and the Public Trust", J. Goss, as presented by S. Lucas to the Advanced Environmental Law Seminar, Indiana Continuing Legal Education Foundation (Nov. 13, 2003).

² Putting the Public Trust Doctrine to Work, Coastal States Organization (2nd Edition, 1997), p. 1.

³ Id.

⁴ Lake Sand Co. v. State, 68 Ind. App. 439, 120 N.E. 715 (1918).

⁵ State v. Kivett, 228 Ind. 623, 95 N.E.2d 145 (1950).

⁶ Acts 1947, c. 181 and Acts 1947, c. 301.

⁷ IC 14-26-2-3.

⁸ IC 14-26-2-5.

⁹ Lake of the Woods v. Ralston, 748 N.E.2d 396 (Ind. App. 2001).

¹⁰ Parkinson v. McCue, 831 N.E.2d 118 (Ind. App. 2005).

¹¹ IC 14-19-1-1(9).

¹² Notably, IC 14-29-1-8 and 312 IAC 6.

¹³ IC 14-26-2 and 312 IAC 11.

¹⁴ IC 14-15 and 312 IAC 5.

¹⁵ P.L.152-2006, SEC. 3 as codified at IC 14-26-2-23(c)(4).

¹⁶ Ind. P.L.239-1997.

¹⁷ Final Report of the Indiana Lakes Management Work Group, (Indiana Department of Environmental Management, Dec. 1999), p. 6.

¹⁸ P.L.38-2000 and P.L.64-2000.

¹⁹ P.L. 233-2003.

²⁰ Final Report of the Indiana Lakes Management Work Group, pp. 14 and 15.

²¹ IC 14-15-3-17. This speed limit is not limited to "public freshwater lakes" and includes, for example, Lake Michigan. Exempted from the restriction are Lake Shafer and Lake Freeman in White County.

²² IC 14-8-2-129.

²³ Final Report of the Indiana Lakes Management Work Group, p. 39.

²⁴ Fiscal Impact Statement for H.B. 1336, Office of Fiscal and Management Analysis, Legislative Services Agency (May 1, 2003).

²⁵ IC 14-9-8-21.5. The "special boat patrol needs fund" is described at IC 14-9-9-5.

²⁶ IC 14-9-9-6. The Department's Division of Law Enforcement is currently developing a formula and memorandum to assist in the administration of the "special boat patrol needs fund".

²⁷ Department of Natural Resources v. Town of Syracuse, 686 N.E.2d 410 (Ind. App. 1997).

²⁸ Final Report of the Indiana Lakes Management Work Group, pp. 40 and 41.

²⁹ 312 IAC 11-3-1.

³⁰ 312 IAC 11-1-3 was added and 312 IAC 11-3-2 was amended effective July 21, 2001.

³¹ The authority was incorporated into the rules for public freshwater lakes at 312 IAC 5-6-1; for navigable waters other than Lake Michigan at 312 IAC 5-7-1; for Lake Michigan and its navigable tributaries in Northwest Indiana at 312 IAC 5-8-1; and, for waters owned by public utilities at 312 IAC 5-9-1. The recodification was effective January 1, 2002.

³² 312 IAC 2-4 became effective January 1, 2002. These rules retained fishing tournament requirements that predated the 2000 statutory reforms for lakes managed through the Department's Division of State Parks and Reservoirs. These are Monroe Lake, Salamonie Lake, Mississinewa Lake, Roush Lake, Brookville Lake, Hardy Lake, Patoka Lake, Cagles Mill Lake, and Raccoon Lake.

³³ The amendments were effective February 15, 2003.

³⁴ Exempted are boat races, fishing tournaments, and water ski events that were already subject to special licensing requirements.

³⁵ The Indiana State Boating Law Administrator testified that the concept of a "major organized boating activity" was developed in concert with the U.S. Coast Guard and consistent with Indiana's. Memorandum of Understanding with the U.S. Coast Guard for Lake Michigan, Ohio River, and Other Navigable Waters. Minutes of Natural Resources Commission (Aug. 20, 2002), p. 6.

³⁶ Amendments to 312 IAC 2-4 and 312 IAC 5-3 became effective October 1, 2003 Applying the same legal authorities, the licensure of fishing tournaments was also required for Sylvan Lake in Noble County beginning on October 1, 2005. 312 IAC 2-4-14.

³⁷ Report of Public Hearing, Analysis, and Presentation for Final Adoption, Legislative Services Agency Document 02-236 (February 19, 2003).

³⁸ As provided in IC 14-32-7-12(b)(7), the Department's Division of Soil Conservation administers the LARE program to "(A) Control sediment and associated nutrient inflow into lakes and rivers. (B) Accomplish actions that will forestall or reverse the impact of that inflow and enhance the continued use of Indiana's lakes and rivers."

³⁹ S.E.A. 94 (2006).

⁴⁰ 312 IAC 6-8-3(c).

⁴¹ IC 14-22-3.