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Supreme Court Upholds Rights of Beach-walkers on Lake Michigan

Written by Lawrence Opalewski on February 26, 2019 Category: Easements and Riparian Rights, Land Use and Zoning, Water Access

Last week, the United States Supreme Court confirmed that the Lake Michigan shoreline in Indiana is held by the State in public trust for all residents. The Court effectively did this by denying a petition for certiorari by lakefront landowners which sought to challenge the application of the public trust doctrine.

In Gunderson v. Indiana, the plaintiffs owned property on Lake Michigan. In 2010, the Town of Long Beach passed an ordinance adopting the Indiana Department of Natural Resources’ (“DNR”) administrative boundary. This separates state-owned beaches from private portions of the shore. The Gundersons, along with other lakefront property owners, argued that the artificial boundary line infringed on their property rights. In 2014, the Gundersons sued the State of Indiana and the DNR. The suit requested a judgment addressing the property rights concerning the shoreline and a judgment of quiet title over the disputed property.

The Indiana trial court ruled that the “public trust” doctrine applied to the Lake Michigan shoreline. This means that the State held title to the disputed land in trust for the benefit of the public. The trial court held that the Gundersons could not interfere with “the protected rights and uses of the public.” The court further clarified that “Indiana’s public trust protects the public’s right to use the beach below the high water mark for commerce, navigation, fishing, recreation, and all other activities related thereto, including but not limited to boating, swimming, sunbathing, and other beach sport activities.” The Gundersons appealed.

On appeal to the Indiana Court of Appeals and Supreme Court, it was confirmed that the State of Indiana holds title to the bed of Lake Michigan and the shoreline up to the “ordinary high water mark.” Further, that title is held in trust for the benefit of the public. Moreover, the Indiana Supreme Court held that the “ordinary high water mark” was to be measured by “[t]he line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics.” These physical characteristics include a “clear and natural line impressed on the bank” or shore, shelving, changes in the soil’s character, the absence of terrestrial vegetation, or the “presence of litter or debris.” In other words, the “ordinary high water mark” is a natural boundary which will move over time.

Finally, the Indiana Supreme Court held that, at a minimum, the public has a right to walk below the natural ordinary high water mark on the Lake Michigan shoreline. While the court intimated that other activities such as fishing or picnicking would be permissible, it declined to rule on the issue absent further legislative guidance.

The Gundersons filed a petition for a writ of certiorari to the U.S. Supreme Court. In the petition, the Gundersons asked the Court to rule on whether the State did indeed have title to the land below the natural ordinary high water mark of Lake Michigan. The Supreme Court denied the petition on February 19, 2019. While a denial of certiorari is not necessarily an endorsement of a ruling, it has the effect of confirming that ruling for the present time. Therefore, Gunderson v. Indiana will be the controlling Great Lakes public trust case in Indiana for the foreseeable future. This case is widely recognized as a win for non-property-owning beach users.

The attorneys at Dalton & Tomich, PLC specialize in land use and property rights matters, including riparian rights cases. If you have a question regarding your right to use or access a body of water, please do not hesitate to contact us. We would be happy to speak with you.

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