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Sunday, July 31, 2005

Indiana law - When is a river "navigable"?

Frank Gray of the Fort Wayne Journal Gazette has a fascinating piece today on this question. Some quotes:

Practically no one in Mongo knows when or why it happened, but somewhere along the line the Pigeon River that flows past the town was listed as a non-navigable waterway.

That doesn’t make a lot of sense to people like Larry Akree. He’s been renting canoes and kayaks to birdwatchers and others on the river for 25 years. If the river were non-navigable, people wouldn’t be able to use it for canoeing. It’s a lot more navigable than the Fawn River, which is classified as navigable, he says.

The classification wouldn’t seem to make a lot of difference. Practically no rivers in Indiana are used for transportation or commerce, so whether the river is regarded as navigable or not would be irrelevant, right?

It does make a difference, though, some LaGrange County residents say, and if they can get the river reclassified navigable, it will pave the way for many changes, and help eliminate friction between residents in Mongo and the Department of Natural Resources, friction that has been producing heat for years.

A few years ago, for example, frustration over use of a swimming hole on the river, a spot practically in the center of town where people had been swimming for more than 100 years, boiled over when the DNR posted no-swimming signs and threatened to ticket people who ignored them. The DNR explained that swimming was banned because the state could be liable if there were an accident.

A few years ago, the state approved a nuisance goose hunt, aimed at thinning out the geese that congregate in a wildlife preserve that runs along the river. The hunt lasts a couple of weeks starting Sept. 1, and during that period, the river is declared off limits to anyone but hunters.

The hunt has been going on for several years now, and it takes place right on top of the last holiday weekend of the summer, when people are having their last fling and Mongo is having festivals. It irritates residents that while they are banned from the river, practically no hunters use it for hunting purposes.

We asked the DNR about the difference between navigable and non-navigable waterways. What we found is that the entire issue is very complicated and few even in the DNR are familiar with it. The distinction goes back to 1816, when the state was founded, and just because a body is listed as navigable doesn’t mean it really is navigable, and just because it’s listed as non-navigable doesn’t necessarily mean that’s true.

Recently, though, residents ran across a law, passed in 1995, that they believe will bring an end to the friction between the town and the DNR once and for all. Declare the river navigable. The law says the commissioners of any county can declare a body of water navigable if at least 24 freeholders in the vicinity of a stream petition them to do so. * * *

[County commissioner] Bachman, however, says the proposal that the commissioners declare the waterway navigable isn’t necessarily that simple. Does the county then assume responsibility for the river when this happens, and if so, will the county have to spend money maintaining it? Bachman isn’t sure.

To [Angelo Pettiti, who lives about a mile from the Pigeon], it isn’t that complicated. “You don’t have to be a legal beagle to look at this law. It’s very plain English,” Pettiti says. The county assumes no responsibility it doesn’t want, and if the river needs to be maintained, there are people who already do that, who’ve been doing it for 25 years.

“This is an IC (Indiana code) regulation that they have to accept. They have no choice.”

Meanwhile, DNR officials aren’t sure it will make any difference.

Declaring a river navigable doesn’t change state regulations concerning a body of water.

I checked the statutes and, sure enough, right there in the DNR laws is IC 14-29-1, which begins:
Sec. 1. The board of county commissioners of each county may declare any stream or watercourse in the county navigable on the petition of at least twenty-four (24) freeholders of the county residing in the vicinity of the stream.
As added by P.L.1-1995, SEC.22.

Posted by Marcia Oddi on July 31, 2005 10:19 AM
Posted to Indiana Law