The initial determination by the Department of Natural Resources, limiting placement of the swim raft to within 200 feet of the shoreline of Pretty Lake, should be affirmed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Carolyn Tungate ("Tungate") initiated the proceeding when she timely filed a letter with the Natural Resources Commission (the "Commission") on June 14, 2001 seeking administrative review of an initial determination by the Department of Natural Resources (the "DNR") to condition her license application to place a swim raft adjacent to Cottage #7 on Pretty Lake in LaGrange County.
2. Tungate's original license application sought authorization to place the swim raft 350 feet from the shoreline, although she subsequently modified the application to seek its placement 260 feet from the shoreline. The DNR conditioned approval of the license upon placement of the raft not more than 200 feet from the shoreline.
3. Pretty Lake in LaGrange County is a "public freshwater lake" as defined by IC 14-8-2-222 and IC 14-26-2-3 and is subject to IC 14-26-2 (sometimes referred to as the "Lakes Preservation Act"). The Commission has adopted rules at 312 IAC 11 to assist in its implementation of the Lakes Preservation Act. Pretty Lake is also a "public water" as defined by IC 14-8-2-226 and subject to IC 14-15 (sometimes referred to as the "Water Recreation Act").
4. The proceeding is governed by IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") and rules adopted by the Commission to assist in its implementation of AOPA. The Commission is the "ultimate authority" for the proceeding as the phrase is defined in AOPA.
5. An administrative law judge conducts a hearing de novo, weighing evidence and reaching conclusions, rather than deferring to the initial determination by the DNR.
6. The party seeking to set aside an initial licensing determination by the DNR has the burden of proof. The standard for the burden is by a preponderance of the evidence. IC 4-21.5-3-14 and Black Beauty Coal Company v. Roberts, 8 Caddnar 129 (1999).
7. Tungate has the burden of proving, by a preponderance of the evidence, the DNR erred when it conditioned her application to limit placement of the swim raft within 200 feet of the shoreline.
8. Pretty Lake contains approximately 184 acres. As a result, a person must not operate a motorboat on Pretty Lake in excess of ten miles per hour. IC 14-15-3-10.
9. Within 200 feet of the shoreline of Pretty Lake, a person also must not operate a motorboat in excess of idle speed, then and only for trolling or to approach a dock, pier, wharf, or similar structure. IC 14-15-3-17. "Idle speed" means the slowest possible speed, not exceeding five miles per hour, that allows a person to maintain steerage so wake or wash created by a boat is minimal. IC 14-8-2-129.
10. Within 200 feet of the shoreline adjacent to Cottage #7, the depth of Pretty Lake does not exceed three feet. As a consequence, at this location a swim raft would be suitable for swimming but not for diving. There are other locations along Pretty Lake where a swim raft can be
[VOLUME 9, PAGE 29] placed within 200 feet of the shoreline and a safe diving depth achieved, but Tungate prefers the sandy lakebed at the proposed site over other near-shore sites along the lake. She is a long-time resident of the community who believes other possible sites would be less appealing to those who might use the raft.11. Conservation Officer Gary E. Whitaker ("Whitaker") evaluated the license application on behalf of the DNR. Whitaker has more than eight years of experience with the DNR. He regularly patrols Pretty Lake in the enforcement of state laws, particularly those involving fish and wildlife or boating.
12. Whitaker recommended limiting approval for placement of the swim raft to within 200 feet of the shoreline based primarily upon the Water Recreation Act and particularly IC 14-15-3-17. He testified this statutory section has two basic purposes. First, the section "creates a safety zone from the shoreline out to the open boating portion of any lake" beginning at 200 feet from the shoreline. Property owners receive safety from high-speed boating and a level of property protection that might otherwise result from strong wake and wash. A relatively quiet area is provided for fishing and swimming. Second, beyond 200 feet from the shoreline, an area is preserved for members of the public to enjoy open boating.
13. Whitaker testified a structure placed in the open boating portion of a lake diminishes use of the lake by the general boating public. Boaters tend to avoid areas where a swim raft or similar structure is located. As a result, the practical loss is not only the area displaced by a raft but also the area in the vicinity of the raft. The problem is additionally aggravated because boating traffic on Pretty Lake and other public freshwater lakes is increasing on an annual basis. Crowding on the open boating portion of the lake becomes even more severe as rafts and similar structures are placed in those areas.
14. Lieutenant Ralph Taylor ("Taylor") tesified he is the area commander for the DNR's Division of Law Enforcement in the nine counties in northeastern Indiana, including LaGrange County. He has been employed as a Conservation Officer for 29 years and is familiar with Pretty Lake where he formerly patrolled and has friends that he continues to visit. Taylor approved the 200-foot limitation placed on the license that was recommended by Whitaker.
15. Taylor testified boat crowding on public freshwater lakes in northeastern Indiana is reaching a "point of critical mass." As a result, applications for swim rafts and other structures that may aggravate crowding are being carefully scrutinized.
16. Talor [sic,Taylor] testified when there is a temporary structure in a lake, boaters exercising good judment "tend to cut it a wide berth." In effect, there is a taking of public waters for private usage. He referenced a July 17, 2001 letter from Carol and Tim Holcomb supporting Tungate's license application. In the letter, the Holcombs observed having the raft there "keeps boats from going into the sandbar where we swim since boats are not suppose to go between the shore and rafts." Taylor testified although the Holcombs did not correctly state the legal effect of having a swim raft, they did convey the practical results of privatization and loss of public usage.
17. As provided by IC 14-26-2-5(d)(2), the state holds public freshwater "lakes in trust for the use of all of its citizens for recreational purposes."
18. Historically, the public trust doctrine in natural resources law has been closely associated with the state sovereign ownership doctrine. The latter doctrine holds that when states achieve sovereignty, one consequence is immediate state ownership of certain lands and waters. When Indiana achieved statehood in 1816, it obtained title to its navigable waters. State v. Kivett, 228 Ind. 623, 95 N.E.2d 145 (1950) and The Public Trust Doctrine, 4 Waters and Water Rights section 30.02 (Michie Co. 1996).
[VOLUME 9, PAGE 30] At the core of the public trust doctrine is the fiduciary obligation of the state to hold state sovereign resources for the benefit of the general public. State sovereign ownership and the public trust doctrine are "founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment." Phillips Petr. Co. v. Mississippi, 484 U.S. 469, 488 (1988). See Lauder and Starke Co. Comn. v. DNR, 7 Caddnar 180, 182 (1994).19. The Commission has found IC 13-2-11.1-2(b) (since recodified at IC 14-26-2-5(d)) "amounts to a statutorily created public trust in which the DNR is the trustee" of public freshwater lakes. Phillabaum v. DNR, 6 Caddnar 6 (1991). See, also, 312 IAC 11-1-2(c)(1) that requires the consideration of the public trust doctrine before issuing a license under the Lakes Preservation Act.
20. If Tungate's license application were to be approved for placement of a swim raft more than 200 feet from the shoreline of Pretty Lake, there would be an unacceptable interference with the use of its open waters by the general boating public. The public trust doctrine would be violated.
21. Locations along the lake exist for the placement of a swim raft within 200 feet of the shoreline where the water is deep enough for both swimming and diving. Special circumstances may exist where a swim raft could properly be approved more than 200 feet from the shoreline of a lake, but those circumstances have not here been demonstrated by the applicant.
22. Approval of Tungate's license application for the placement of a swim raft on Pretty Lake was properly limited to within 200 feet of the shoreline.
FOOTNOTE
* Written communications were received both from local residents who support the Tungate application and those who oppose the Tungate application. Although their efforts in writing must be respected and appreciated, the letters were not found to have significant probative value for the disposition of this proceeding.