ORDER
The boathouse extension proposed by Stephen R. Snyder in Application PL-16,626 does not require a permit from the Department pursuant to IC 14-26-2-6. Further, the boathouse extension is not prohibited by the public trust doctrine and is not in contravention with IC 14-26-2-5.
FINDINGS OF FACT
1. Stephen R. Snyder submitted to the Department of Natural Resources (the "Department"), permit application PL-16,626, seeking to cantilever an existing 25 foot wide boathouse, five feet lakeward of the shoreline of Lake Wawasee, a public freshwater lake in Kosciusko County, Indiana.
2. On July 5, 1996, the Department denied the application, so Snyder filed a petition for administrative review with the Division of Hearings of the Natural Resources Commission (the "Commission") on July 26, 1996.
3. Tim Rider was assigned as Administrative Law Judge (ALJ) by the Commission for this proceeding.
4. Indiana Code (IC) 4-21.5 (the Administrative Orders and Procedures Act) as well as 312 Indiana Administrative Code (IAC) 3 govern the conduct of this proceeding.
5. The Department is an agency as defined in IC 4-21.5-1-3 and is the agency responsible for regulating public freshwater lakes in Indiana under IC 14-26-2 and an assisting rule codified at 310 IAC 6-2.
6. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
7. In accordance with IC 14-10-2-3, the Commission is the ultimate authority for the Department for this type proceeding.
8. The parties have agreed that there are no material facts in dispute, and both have submitted a Motion For Summary Judgment.
9. The material facts as presented by the Claimant are as follows: (NOTE: The Department has not stipulated to this set of facts but does agree that there are no material facts in dispute. As a result, the case may properly proceed to a disposition upon summary judgment.)
a. Claimant is the owner of real estate fronting on Lake Wawasee in Kosciusko County, Indiana
and more particularly described in Application Number PL-16,626.
b. At the time of the filing
of the original Application Number PL-16,626, there was located on Claimant's real estate a
boathouse constructed in 1937 containing a boat well sufficient in size to contain boats
approximately 17 feet long.
c. Immediately adjacent and west of the opening to the boat well,
there exists a concrete seawall which protrudes five feet farther into the channel and waters of
Lake Wawasee than does the boathouse.
d. The area immediately adjacent to the opening to
the boathouse (boat well) and five feet into the waters of Lake Wawasee from such opening are
utilized by the public only for fishing on an occasional basis and the depth of such area is
insufficient to allow the navigation of any type of watercraft, motorized or not.
e. Claimant's
boathouse, as currently configured, is insufficient to allow the mooring of a boat of the size
typically used on Lake Wawasee by the public.
f. The proposed extension to Claimant's
boathouse would be constructed on 6" x 6" framing anchored to the existing boat well
foundation, would extend over the waters of Lake Wawasee five feet from the current opening of
the boathouse and would not use pilings, timbers or any type of structure penetrating the water of
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Lake Wawasee for support.
g. Construction of the proposed addition to the boathouse will in
no way interfere with the public's use of that five foot area north of the boathouse for the purpose
of fishing.
h. The channel on which Claimant's boathouse is located has been utilized almost
exclusively for the placement of boathouses to moor the boats of adjacent property owners.
10. The issuance of a permit is required pursuant to IC 14-26-2-6 only if an applicant is "changing the level of the water or shoreline of a public freshwater lake by: (1) excavating; (2) filling in; or (3) otherwise: (A) causing a change in the area or depth of; or (B) affecting the natural resources, scenic beauty or contour of: the lake below the waterline or shoreline".
11. The Claimant's proposed construction will not result in excavating, filling in, causing a change in the area or depth of or effecting the natural resources, scenic beauty or contour of the lake below the waterline or shoreline.
12. Therefore, the Claimant is not required to obtain a permit for the cantilevering of Claimant's boathouse five feet over the waters of Lake Wawasee.
13. However, the Department correctly maintains that it has the authority and, indeed, the responsibility to scrutinize the Claimant's project under IC 14-26-2-5 which provides that the state "holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes."
14. This statutory provision is very similar to the "public trust doctrine" which applies to navigable waters. The Commission has found that IC 14-26-2-5 (formerly IC 13-2-11.1-2(b)) "amounts to a statutorily created public trust in which the Department is the trustee" of public freshwater lakes. See Phillabaum v. DNR, 6 Caddnar 6 (1991).
15. While the Claimant is not required to obtain a permit under IC 14-26-2-6 to extend his boathouse, the activity may should be scrutinized by the Department under IC 14-26-2-5. If it is found to be a violation of the public trust doctrine, the activity can be prohibited.
16. If an activity prohibited by State Statute administered by the Department is not abated, the Department can file a Complaint for the Issuance of a Notice of Violation with the Commission pursuant to IC 14-10-2-6.
17. 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 30.02 (Michie Co. 1996).
18. 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 Petroleum Company v. Mississippi, 484 U.S. 469, 488 (1988).
19. As previously stated, the Commission has found that IC 14-26-2-5 "amounts to a statutorily created public trust in which the Department is the trustee" of public freshwater lakes. Phillabaum v. DNR, 6 Caddnar 6 (1991). Acknowledging application of the public trust doctrine to Indiana public lakes generally is Lake Sand Co. v. State, 68 Ind.App. 439, 120 N.E. 714 (1918).
20. The Department argues that a particularly instructive case on this issue is Lake Michigan Federation v. United States Army Corp of Engineers, 742 F.Supp.441 (N.D. Ill 1990). In this case, a private university (Loyola) received a grant of 20 acres of lake bed from the Illinois legislature which was to be filled for various private and public uses. The Corp of Engineers granted a permit. The Lake Michigan Federation asserted this grant of public property to a
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private entity was a violation of the public trust doctrine. The Court agreed, holding that while this project was beneficial to the public in some ways, its primary purpose was to satisfy a private interest...." The conveyance of lakebed property to a private party - no matter how reputable and highly motivated that private party may be - violates the public trust doctrine." Id. at 447.
21. The Department does not allege filling 20 acres of Lake Michigan is equivalent to the annexing five feet of lake surface at issue here but maintains that the principle which guided the Lake Michigan court is the same because the quantity of land taken from the public is immaterial.
22. However, other Courts have found that the public trust doctrine is not an absolute. An exception to the restriction on alienation of public trust lands is provided where the purpose of alienation is for a public purpose or benefit. Illinois Central R.R. Co. v. Illinois, 146 U.S. 387 (1892). Examples of valid alienations cited in Illinois Central at page 453 include the "the foundation for wharves, piers, docks and other structures in aid of commerce."
23. States have addressed filling of public trust lands in a variety of ways. The most-notable illustration in Indiana is the placement of fill within the public trust lands of Lake Michigan, which requires a permit pursuant to IC 14-18-6 and payment to the treasurer of state of $100 before a land patent is issued to the private landowner. Another illustration is offered by Ohio, which provides by rule for a schedule of "lease" payments as determined on an individual site and use basis for fills within Lake Erie. Fills placed before 1989 (and not subject to the terms of a site-specific lease) are assessed at $0.01 per square foot, annually, with an escalator based upon the National Consumers Price Index. Ohio Department of Natural Resources Rules for Leasing of Lake Erie Submerged Lands (1501-6-01 to 1501-6-06).
24. In Lauder and Starke County Commissioners v. DNR, 7 Caddnar 180, the Commission held that the public trust doctrine "is not an absolute". The theme of the Commission's decision in Lauder advances the position that while the Department's authority and responsibility to protect the public trust pursuant to IC 14-26-2-5 is clear, that authority must be exercised in a reasonable manner after a careful examination of the facts.
25. In his Motion for Summary Judgment, Snyder presented material facts as previously noted in paragraph 9a through 9h. Also previously noted was the Department's position that it would not stipulate to the facts presented by Snyder but it did agree that no material facts are in dispute.
26. The department's position, as presented in its Cross motion for Summary Judgment, is that "the facts of this situation are irrelevant because the Claimant's act of suspending his boathouse over five feet of lake and lakebed, thus limiting and/or prohibiting public use and access to that portion of the lake is clearly disallowed by legal precedent." (emphasis added).
27. If the Department's position, as emphasized above, is correct, the case-by-case examination mandated by the Commission in Lauder would extend no farther then a finding that some limiting of public use is possible. Clearly the Commission's idea of a case-by-case examination requires the Department and the ALJ to include such factors as the character of the intrusion and its overall effect upon the public good.
28. If a case-by-case examination is to be made and the public trust doctrine is not absolute, then the appropriate examination would be one of "reasonableness" as advanced by the Court of Appeals of Indiana, Third District in Zapfee v. Srbeny, 587 N.E.2d 177 (Ind.App. 3 Dist. 1992).
29. In 30. The Court in Zapfee at 181, held that "instead of a
rigid application....the better view would be to apply a reasonableness' test to accommodate the
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diverse characteristics of Indiana's numerous freshwater lakes". The Court went on the specify
"the installation of a pier by a riparian owner is a reasonable use under IC 13-2-4-5, as long as it
does not interfere with the use of the lake by others". (emphasis added).
31. A Zapfee
reasonableness examination of the Motions for Summary Judgment and attached affidavits and
other materials demonstrates that the Claimant's boathouse extension would not interfere with the
use of the lake by others.
32. The boathouse extension is located on a manmade channel created
for the purpose of the mooring of boats off the lakeshore of Lake Wawasee.
33. The area over
which the boathouse extension is to be constructed is very shallow and is not navigable because
of a seawall projecting five feet lakeward on the west side of the boathouse. Therefore the
extension will not deprive the public of an area for boating.
34. The only other public use of
this area would be for fishing and the Claimant's uncontroverted position is that the cantilevering
of the boathouse would not prevent the public from fishing this area.
35. Based upon the above examination, it is clear that the use of this area by the general public will not be interfered with in
any way.
36. If there is no showing of deprivation of use by the public then the project cannot
be prohibited as a violation of the public trust doctrine.