INDIANA Navigational Law – Clear as Mud.

1. Basic Description

Indiana law is somewhat confusing as it applies to recreational boaters. Boaters may clearly use larger navigable streams where the state owns the streambed, as well as smaller streams that have been statutorily designated as recreational rivers. Whether smaller navigable streams, which have privately owned beds, may be used for boating is presently unclear.

2. State Test of Navigability

An Indiana statute defines which streams are navigable as streams that have been declared navigable or a public highway by at least one of the following:

1. a court;
2. the Indiana general assembly;
3. the United States Army Corp of Engineers;
4. the Federal Energy Regulatory Commission;
5. a board of county commissioners under IC 14-29-1-2; and/or
6. the commission following a completed proceeding under 4-21.5.

In addition, a list of declared navigable streams, called the "Roster of Indiana Waterways Declared Navigable" is set forth at 15 IR 2385. A board of county commissioners may declare a stream navigable upon the petition of at least 24 freeholders in the county that reside within the vicinity of the stream. The public also has rights in inland waterways, which are defined as public waters that are not navigable waterways.

Indiana courts have recognized public rights in rivers that do not pass the federal title test. One case defined navigable streams as those with sufficient capacity for useful purposes of navigation. Useful purposes are trade and travel in the ordinary modes. The courts have recognized that some streams are navigable for certain kinds of inferior craft, and these streams are subject to the jurisdiction of the state. But navigation by canoes and the floating of timber is not sufficient to establish the navigability of a river. Therefore, the exact test for determining which rivers are subject to exclusive state jurisdiction is not clear. Additionally, it should be noted that Neaderhouser was decided over 130 years ago.

Despite the fact that navigability has been discussed by Indiana authorities, the law determining which Indiana streams are open to recreational boating is far from clear. The exception to this is any stream designated as a recreational stream.

3. Extent of Public Rights in Navigable Rivers

The state owns the streambed of navigable streams under the federal title test to the low water mark. In such streams the public has the right to boat, wade, fish, etc.; however, the public does not have the right to moor a boat to a tree on the bank of a navigable river. This casts some doubt on whether there exists a right to portage in these streams. In streams which are navigable, but the bed is privately owned, the public does not have the right to fish. The right to portage in streams where the bed is privately owned is doubtful.

4. Statutes Governing Landowner Liability

Indiana's recreational use statute (Ind. Code Ann. § 14-2-6-3) was passed in 1969. This law does not specify whether the landowner has a duty to keep the property safe or a duty to warn. It does not require a landowner to provide an assurance of safety. In general, this law grants landowners broad immunity from liability for personal injuries or property damage suffered by recreationists on the owner?s land. However, the law does not protect the landowner from liability for willful or wanton misconduct, and does not protect the landowner if a fee is charged for the use of the property.

Indiana's tort claims act, which defines the scope of the government?s liability, is detailed in the Indiana Tort Claims Act, Ind. Code § 34-4-16.5-1 et seq.

5. Miscellaneous

Indiana has established a program to designate streams as natural, scenic or recreational and to acquire adjacent lands. Boaters can use recreational rivers, and probably natural and scenic rivers.

The Kankakee River has been declared navigable from Indiana?s border with Michigan to the border with Illinois.

Criminal trespass on private land is a class A misdemeanor and occurs where oral or written notice, including posting of signs, has been given indicating that entry is forbidden.