The decision of June 13, 1990, of the delegates of the Natural Resources Commission to deny permit application number PL-13,632 to alter the bed or shoreline of Lake Wawasee is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources (DNR) is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency responsible for approving permits to alter the bed or shoreline of a public freshwater lake.
3. Lake Wawasee is a public freshwater lake.
4. The Natural Resources Commission (NRC) is the ultimate authority with respect to any requests for administrative review of actions taken by the DNR.
5. IC 4-21.5 and IC 13-2 apply to this proceeding.
6. IC 13-2-11.1-2(b) provides that "the state has full power and control of all public freshwater lakes in Indiana... ; it holds and controls all of such lakes in trust for the use of all its citizens for recreational purposes."
7. IC 13-2-11.1-5 provides that an owner of land abutting a public freshwater lake may be issued a permit to change the shoreline or alter the bed of said lake.
8. Paul Phillabaum (Phillabaum) is the owner of land abutting Lake Wawasee. Phillabaum applied to the DNR in March of 1990 for a permit to alter the shoreline or bed of Lake Wawasee by filling a triangular area of the legal lake bed in order to faciliate the construction of a new sea wall. This application was given number PL-13,632.
9. The amount of lake to be taken is about 240 square feet which would thus be annexed to Phillabaum's lake front property.
10. On June 13, 1990, NRC delegates denied the permit application.
11. IC 13-2-11.1-2(b) quoted in paragraph 6 above amounts to a statutorily created public trust in which the DNR is the trustee.
12. A recent Federal Court Case has throughly examined the public trust doctrine in a similar case. In Lake Michigan Federation v. U.S. Army Corps of Engineers (Cause Number 90CO2809, decided June 22, 1990) the U.S. District Court for the Northern District of Illinois set aside a permit which would have allowed Loyola University to fill in a portion of Lake Michigan adjoining the college campus. The proposed use of the filled area was somewhat public in nature as the public would be allowed unrestricted access to a portion of the walking paths and park areas so created. The Illinois State Legislature conveyed 18.5 acres of Lakebed to Loyola. Illinois law provided that the title in submerged lands is held in trust by the state for the people of Illinois. The court held that even though there was some public benefit to the conveyance, the state could not transfer lakebed property to a private entity to satisfy a private interest. To do so would be a violation of the trust.
13. In the Phillabaum case, there is no public interest being served in the proposed project.
14. No further analysis is needed. The DNR and NRC cannot under any circumstances allow a private individual to annex a portion of the lakebed of a public freshwater lake to his lake front property. The public trust doctrine prohibits it.
15. Accordingly, the initial decision denying permit application number PL 13,632 is affirmed.