CORRECTION (8/5/19): In the second paragraph of the “Case Law” section herein I offered the observation that the drunken boating law formerly at IC 14-15-8-8 had been repealed in 2012. That was not repealed so much as it was hidden or moved to a spot where I did not think to look. I did look in Title 9 where one finds the various prohibitions against drunk driving. I found that boats were excluded from the definition of “vehicle” in Title 9. Then I ran across the new location of the drunken boating prohibition within a “Miscellaneous Offenses” article of the Criminal Code at IC 35-46-9-6. Don’t quote me but I think it’s still legal to paddle or row drunk so long as the vessel has no motor of any sort in operation. Likewise, drunk sailing (an inherently bad idea) may be legal when the vessel has no motor of any sort in operation. There is a good argument that the drunken boating prohibition applies only to “public waters” of the state.
Introduction
In this Odd Cops Series I have previously written about Special Deputies, Campus Cops, and Railroad Cops. State Conservation Cops are both odd and ordinary, but seldom noticed compared, for example, to their State Police cousins.
Statutes and Rules
State Conservation Cops are within the law enforcement division of the Indiana Department of Natural Resources. The IDNR has a commission and an overall Director. The law enforcement division has a division director who, with approval of the overall Director, “appoints” personnel. IC 14-9-8-8. A conservation cop may not be assigned to “regular active duty” without first having passed “a course prescribed by the division director.” IC 14-9-8-11.
It appears that conservation cops receive at least part of their training at the Law Enforcement Academy. They are within the description of “law enforcement officer” at IC 5-2-1-2(1) for whom Law Enforcement Academy training is mandatory. Conservation cops are also within the definition of “law enforcement officer” at IC 9-13-2-92 and IC 35-31.5-2-185.
Pursuant to IC 14-9-8-16 a conservation cop has all necessary powers to enforce the natural resources laws, including the power to arrest a person who violates such laws in the conservation cop’s presence. If read by itself, IC 14-9-8-16 seems to restrict jurisdiction. But IC 14-9-8-17 expands that jurisdiction to include enforcement of all Indiana laws with corresponding powers of arrest. The powers of a conservation cop seem no less broad than those of a state cop under IC 10-11-2-21. The territorial jurisdiction of the conservation cop is statewide.
Pursuant to IC 14-9-8-18 a conservation cop in uniform “shall carry arms.” A “nonuniformed” conservation cop “may carry arms.”
Other odd statutes pertaining to conservation cops include IC 14-22-39-3. Section 3 declares the authority of a conservation cop to search (with neither warrant nor consent) a boat, conveyance, vehicle, automobile, etc. on “good reason to believe” that evidence of an Article 22 violation will be secured. Article 22 is the “Fish and Wildlife” Article of Title 14. It seems that the authors of Section 3 were unfamiliar with the concept of “probable cause” when adopting “good reason to believe” as the standard for warrantless/consentless searches by conservation cops. See the case law section below for how the judiciary has reacted to the “good reason to believe” standard.
Though I found them to be unhelpful, there are administrative regulations for the Law Enforcement Division of the DNR at 312 IAC 4. Some “prerequisites” for a conservation cop applicant appear at 312 IAC 4-5-2.
Case Law
There are many appellate cases containing the term “conservation officer,” in contrast to the scarcity of cases relating to (for example) railroad police. Prior to a recodification of Title 14, the “good reason to believe” now at IC 14-22-39-3 was located at 14-2-9-1. That citation was used by the COA in its 1985 reversal of convictions resulting from a conservation cop’s warrantless search. Richard v. State, 482 N.E.2d 282 (Ind. Ct. App. 1985). The Court of Appeals concluded that the State failed in its burden of proving an exception to the warrant requirement. Presiding Judge Ratliff concurred in result while expressing his preference to declare the “good reason to believe” statute (now IC 14-22-39-3) unconstitutional. The COA continued criticism of the “good reason to believe” standard as constitutionally “suspect” without actually holding so. State v. Alter, 953 N.E.2d 1182 (Ind. Ct. App. 2011). The fact that the statutory standard of “good reason to believe” persists today is proof that the General Assembly’s capacity to enact meaningful corrective legislation is exceeded by its capacity to foul things up in the beginning.
State conservation cops enforce fish and game laws. Hurst v. State, 717 N.E.2d 883 (Ind. Ct. App. 1999). They have duties respecting the dredging of waterways. Natural Resources Commission v. Porter County Drainage Board, 576 N.E.2d 587 (Ind. 1991). They have duties respecting dam safety. Moriarity v. State, 113 N.E.3d 614 (Ind. 2019). And they have other duties, including the regulation of dealers in timber. Arnold v. State, 61 N.E.3d 1171. They may also be found exercising stewardship over state parks, watching over recreational boating, and investigating boating accidents on public waters. Wood v. State, 999 N.E.2d 1054 (Ind. Ct. App. 2013). A former duty of conservation cops was to enforce the law against drunken boating at IC 14-15–8-8. For good or ill, the drunken boating prohibition seems to have been repealed in 2012. I almost forgot to mention their duties respecting those who dig within 100 feet or otherwise disturb a cemetery without a permit. Scalpelli v. State, 827 N.E.2d 1193 (Ind. Ct. App. 2005).
Personal Experience
As a lawyer I have had no substantial contact with state conservation cops. My only adverse personal contact with such cops came during the “prom picnic” near in time to my graduation from high school. The picnic took place at the Spring Mill State Park near Mitchell, maybe 80 miles from my high school. I left my date with others in our group while I checked (by car) whether the horse tour had resumed following a rain shower. I was pulled over by conservation cops who ticketed me for speeding on the park road but were otherwise interested in checking my car for beer, of which I had none. Their interest in beer went beyond the desire to bust me for possessing it. As I was directed into the back seat of the police vehicle there, were multiple empty beer cans on the floor.
Advice
Conservation cops have broad police powers and broad territorial jurisdiction. If you have an encounter with one within a state park or on a city street, be assured that he is a real cop. Despite the bad behavior of conservation cops at the site of my prom picnic I harbor a positive opinion of conservation cops in general.
Addendum: There is a jurisdictional feature that may extend the range of law enforcement officers (particularly those on boats) to points outside the State of Indiana. For that portion of the Ohio River flowing between Indiana and Kentucky, the great majority of the surface area belongs to Kentucky, due to a cruel historical accident. Nonetheless, Indiana claims concurrent jurisdiction (with Kentucky) over the Ohio River from shore to shore. See the Indiana Constitution at Art. 14 Sec. 2 and Benham v. State, 637 N.E.2d 133 (Ind. 1994). If you find yourself suddenly in the company of an Indiana Conservation Officer while boating on the Ohio adjacent to the Kentucky shore, you should assume that he has police powers at that location. The same rule of shore-to-shore concurrent jurisdiction applies to that part of the Wabash River that constitutes the Indiana/Illinois border.
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