Martin v. Waddell, 41 U.S. (16 Pet.) 367 Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212. The Propeller Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 453. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563. State v. Kivett, 228 Ind. 629, 95 N.E.2d 145 (1950). United States v. United States Steel, 482 F.2d 439 (7th Cir. 1973). Bissell Chilled Plow Works v. South Bend Mfg. Co. (1916), 64 Ind. App. 1, 111 N.E. 932. Roster of Indiana Waterways Declared Navigable, 15 IND. REGISTER 2385 (July 1, 1992). The Indiana Roster of Waterways Declared Navigable or Nonnavigable may be found through the Indiana Natural Resources Commission Homepage and is located at http://www.ai.org/nrc/navigati.htm. The determination of non-navigability for Wolf Lake was based upon its description in Mitchell v. Small, 140 U.S. 406, 412 (1890) as a "non-navigable lake." See also State v. Forsyth, 92 Ind. App. 513, 516, N.E. 661, 662 (1931) which notes the 1834 government plat for township 37 north, range 10 west, second principal meridian shows Wolf Lake as a "nonnavigable lake extending through section 1," and states the "lake was then, and has remained ever since, nonnavigable IC 14-26-2. IC 14-26-2-3(a). IC 14-26-2-3(b) and 310 IAC 6-2-10. IC 14-26-2-5. See, for example, Bath v. Courts, Ind. App., 459 N.E.2d 72 (1984) which applies a navigable streams statute in implementing the Indiana Lakes Preservation Act. This listing is derived from Public Freshwater Lakes and Their Watershed Location, Division of Water of the Bainbridge v. Sherlock and Others, 29 Ind. 364 (1868). "The banks belong to the riparian owner, and he owns an absolute fee down to the low water mark." A subsequent case involving the same litigants, however, makes an apparently inconsistent reference to the high-water mark. Sherlock, et al. v. Bainbridge, 41 Ind. 35 (1872). Early discussions of ownership boundaries on the Ohio River are further confused because the Ohio River forms the state boundary between Indiana and Kentucky, and this state boundary was delineated in terms of a low-water mark. Clark, THE INDIANA WATER RESOURCE (AVAILABILITY, USES, AND NEEDS), 107 (1980). IC 14-28-2. This statutory chapter was superseded by a permanent rule on January 1, 1996 as codified within amendments to 310 IAC 6-1. IC 14-28-2-12. 312 IAC 1-1-26. The courts have long-recognized the right of boaters to use piers and wharves and other private facilities where necessitated by emergency conditions. An early Indiana decision recognized that, although a wharf is the private property of a riparian owner, the wharf could be used by a boater without consent "in case of some peril or emergency of navigation." Bainbridge v. Sherlock, cited previously, at 29 Ind. 370. 33 USC 1342 and 33 USC 1344 respectively. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985). Antieau, MODERN CONSTITUTIONAL LAW, §12:2 (1969). North American Co. v. Securities & Exch. Com., 327 U.S. 686 (1946). 16 USC 1531 to 1543. The "public trust doctrine" dates to Roman common law. For a discussion of its historic progression, see SHORELINES, Origins of the "Public Trust Doctrine" (Winter 1997). Illinois Cent. R.R. v. Illinois, 147 U.S. 387 (1892). Appleby v. City of New York, 271 U.S. 364 (1926). 4 Beck, Sources of the Public Right, WATERS AND WATER RIGHTS §30.02(b)(1) (1991). Lake Sand Co. v. State, 68 Ind. App. 439, 120 N.E. 714 (1918). 312 IAC 6-1-1(f). IC 14-26-2-5. Phillabaum v. DNR, 6 Caddnar 6 (1991). Lauder and Starke Co. Comn. v. DNR, 8 Caddnar 180 (1997). United State v. Chicago, M., St. P. & P.R.R., 312 U.S. 592 (1941). U.S. CONST. art. IV, §3, cl. 2. 4 Beck, Constitutional Foundations of Federal Water Law, WATERS AND WATER RIGHTS, §§ 35.02 through 35.07 (1991). Rivers and Harbors Appropriations Act of 1899 (33 USC 401, et. seq.). See particularly 33 USC 403. "Navigable waters of the United States" are those waters that connect with other waters to form a continuous interstate highway. National Wildlife Federation v. Alexander (1979), 198 U.S.App.D.C. 321, 613 F.2d 1054. As a practical matter, the Rivers and Harbors Act is often administered by the Army Corps and the EPA in concert with the Clean Water Act. This association is so close, that in casual conversation, the Clean Water Act is sometimes mistakenly attributed with provisions of the Rivers and Harbors Act. 33 USC 401. United States v. Members of the Estate of Boothby (1994 CA1 Puerto Rico), 16 F.3d 19. Wisconsin v. Illinois (1929), 278 U.S. 367 and Cummings v. Chicago (1903), 188 U.S. 410. The need for harbor dredging is also a water quality issue and an economic issue. See discussions in subsequent chapters addressed to Water Quality and to Economic Development. See also Zabroski, Cleaning the canal, The TIMES (July 14, 1996) which may be accessed on the Internet at: http://www.thetimesonline.com/archives/times/960714/INDharbortour.ill.a.01.htm The Federal Power Act was originally enacted in 1920 and is now codified at 16 USC 791 through 823. United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940). 16 USC 797(e). 33 USC 1341. Confederated Tribes & Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466 (9th Cir. 1984). 1995 Ind. P.L. 1. IC 14-29-1-8(a). Public or municipal utilities are exempted. IC 14-29-1-8(c) through (e). 312 IAC 6-1-1(f). 310 IAC 21-3. This rule has its most obvious application to shipwrecks located in Lake Michigan and is intended to assist in implementation of the federal Abandoned Shipwreck Act (43 USC 2101) in Indiana. See, also, the first of a three-part series considering shipwrecks on Lake Michigan entitled The Abandoned Shipwreck Act and the Brother Jonathan, SHORELINES (Summer 1998) accessible at http://www.state.in.us/dnr/lakemich/shorelin.htm 310 IAC 21-4. 310 IAC 21-5 which seeks to coordinate permitting under IC 14-29-1 and IC 14-29-3. THE LOST EPISODES OF ENVIRONMENTAL LAW (1993). Redlawsk v. Department of Environmental Resources, No. BP-94-03, before the Board of Property, Commonwealth of Pennsylvania (May 20, 1996). See Bonelli Cattle Co. v. Arizona discussed in Coastal Dynamics. Redlawsk at page 6. IC 14-29-8. P.L. 101-1990, originally codified as IC 13-2-33. Moore v. Sanborne, 2 Mich. 520 (1853) and Nekoosa Edwards Paper Co. v. Railroad Comm'n, 201 Wis. 40, 228 N.W. 144, aff'd mem., 283 U.S. 787 (1931). 1 Beck, Introduction to Riparian Rights, Waters and Water Rights §6.02(f) (1991) citing Bott v. Commissioner of Nat. Resources, 415 Mich. 45, 78, 327 N.W.2d 838, 849-50 (1982). Wisconsin and Ohio are among states which have adopted a form of the "recreational utility" test. Another commentator urges, however, that the fur trade has already validated the use of canoes and kayaks under the "commercial" test for navigability. Johnson and Austin, Recreational Rights and Titles to Beds on Western Lakes and Streams, 7 NAT. RESOURCES J. 1, 25 (1967). Note, Indiana's Lake Michigan Shoreline: Recommended Shoreline Regulations for a Valuable Natural Resource, 25 VALP. LAW REV. 99, 120 (Fall 1990). |