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Justices preserve public access to Lake Michigan shore

February 14, 2018

You may walk the shore of Lake Michigan, Indiana’s Supreme Court held Wednesday. Justices settled that question in a landmark case, finding that the state’s public trust rights to the Lake Michigan shore extend to the ordinary high-water mark.

The decision comes in a case in which lakeshore landowners argued they were entitled to land on the shore up to the water’s edge at any time, potentially infringing public access.

“Today, we hold that the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high-water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary,” Justice Mark Massa wrote for the court.

“We therefore affirm the trial court’s ruling that the State holds title to the Lake Michigan shores in trust for the public but reverse the court’s decision that private property interests here overlap with those of the State,” the court held.

Jeffrey Hyman of the Conservation Law Center affiliated with Indiana University argued before the Supreme Court for public-interest intervenors Alliance for the Great Lakes and Save the Dunes. “The Indiana Supreme Court clearly understood the law of public trust and applied it sensibly. My clients are very happy, but the big winners in this case are the people of Indiana,” he said in a statement after the ruling.

The decision makes three key holdings:

• That Indiana acquired exclusive title to the bed of Lake Michigan up to the natural ordinary high water mark, including the temporarily-exposed shores, at statehood;

• Indiana retains exclusive title up to the natural ordinary high water mark of Lake Michigan; and

• At a minimum, walking along the Lake Michigan shore is a protected activity inherent in the exercise of traditional public trust rights.

The decision is the court’s first to address where a line in the sand divides public versus private interests in properties along Indiana’s 45-mile shoreline of Lake Michigan. Several amici filed briefs on either side of the issue in the case, Don H. Gunderson and Bobbie J. Gunderson, Co-Trustees of the Don H. Gunderson Living Trust v. State of Indiana, Indiana Department of Natural Resources, Alliance for the Great Lakes, et al., 46S03-1706-PL-423.

The Gundersons owned lakefront property in the LaPorte County community of Long Beach. They and other Long Beach landowners sued the Indiana Department of Natural Resources, seeking a declaration that their land deeds entitled them to exclusive access to all land up to the water’s edge. Opponents argued that Indiana received land below the ordinary high-water mark at statehood under the public trust doctrine, and that such land cannot be deeded to a private party without an act of the legislature.

In a compromise that pleased few, LaPorte Superior Judge Richard Stalbrink Jr. set the ordinary high-water mark at DNR’s administrative level of 581.5 feet above sea level. Problematically, this level was underwater at some points and well inland from the shoreline elsewhere.

The court’s Wednesday opinion acknowledged that exactly where that ordinary high-water mark is remains murky. In a footnote, the court observed, “We acknowledge that the character of the shore at a particular site may present difficulties in determining the precise location of the OHWM. In such cases, ‘recourse may be had to other sites along the same stream to determine the line.’ Borough of Ford City v. United States, 345 F.2d 645, 648 (3d Cir. 1965).”

The justices’ decision leaves to the legislature any potential expansion of public access beyond the protection of the right to walk along the shore below the ordinary high-water mark.

“Refraining from exercising our common law authority more expansively here is particularly prudent and appropriate where the legislature has codified, in part, our State’s public trust doctrine,” Massa wrote. “Thus, we conclude that any enlargement of public rights on the beaches of Lake Michigan beyond those recognized today is better left to the more representative lawmaking procedures of the other branches of government.”

The decision was unanimous, with the exception of Justice Geoffrey Slaughter, who did not participate.

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