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Lake Michigan private, public land rights clash before COA

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Judge Melissa May asked South Bend attorney Michael V. Knight if he believed no one should have the right to walk across his clients’ property, at the end of which ripple the public waters of Lake Michigan.

“Yes, that is my position, that the Gundersons own this exclusively,” Knight said during oral arguments Sept. 8 before a Court of Appeals panel. He added that private property owners such as Don and Bobbie Gunderson of Long Beach have the right to exclude people from their land, and that a declaration otherwise from a court would represent a taking of private land.

lake-long-beach-15col.jpg Long Beach is the center of a landmark dispute between public access and private property rights to the Indiana shore of Lake Michigan. (IL Photo/Dave Stafford)

Such a position is anathema to supporters of public access to the Great Lakes, who argued that the Supreme Court of the United States has affirmed in multiple cases that states have the authority to define land held in the public trust — the grant of the lake and lake bed to Indiana from the federal government at statehood.

They argued the public trust and equal footing doctrine require the COA to find the public should be allowed access to use the land below the ordinary high-water mark or the high-water mark traced to common law. “These are terms of art that go back in the history of jurisprudence to the shore,” argued Jeffrey Hyman of the Conservation Law Center at Indiana University Maurer School of Law. Hyman represented Save the Dunes alliance, one of several amici aligned with either side of the dispute.
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Whether the public has a right to walk across private property above the water on the shore of Lake Michigan remains an open question in Indiana, and the issue is also unsettled in several other Great Lakes states. Unlike ocean beaches where the public largely has an accepted right to walk, “when ascertaining the scope and effect of the public trust doctrine with respect to the public’s right to walk the shores of the Great Lakes, there is little consensus regarding approach or result,” University of Toledo College of Law professor Kenneth Kilbert wrote in a 2010 Cleveland State Law Review article on the subject.

LaPorte Superior Judge Richard Stalbrink ordered the Gundersons’ property line set according to Indiana Administrative Code that defined the ordinary high-water mark at an elevation of 581.5 feet above sea level, which pleased neither side. Private property rights advocates say the water’s edge is the line conveyed by deed, and public access proponents said the mark determined by the Army Corps of Engineers is arbitrary.

The Indiana Department of Natural Resources placed stakes at the elevation after Stalbrink ruled, but Pam Sharkey, who argued for public access representing the Long Beach Community Alliance, said a static line can’t define the boundary of a moving lake.

“It literally and figuratively is a line in the sand,” Sharkey told the panel, “and it could be underwater.” She said the public would have more notice if the court fixed the public access area as the shore below the point where terrestrial vegetation occurs.

Deputy attorney general Andrea Rahman, representing the DNR, argued Supreme Court precedent grants Indiana the right to determine where the public trust extends. “It’s not the state’s burden to show its administrative rule is unreasonable,” she said, “It is actually the intervenors’ burden to prove this is unreasonable.”

Rahman said the state would argue that the COA largely affirm the trial court. She said the Gundersons and other property owners received their land subject to a federal land patent. “We believe that regardless, the federal land patent could not give any land below the high-water mark,” she said.

“What is that high-water mark?” Judge John Baker asked.

She pointed to the administrative line. “We believe that should be the outermost boundary of the Gundersons’ property.”

“And your opponent is questioning the authority of the state to enact that regulation to determine that ordinary high-water mark. What’s your response to that?” Judge Elaine Brown asked.

The state’s title of property up to the navigable waterways up to the ordinary high-water mark gives the state the ability to determine what reasonably constitutes the mark, Rahman said. “It was perfectly reasonable and appropriate for the trial court to defer to DNR’s authority and expertise in establishing the ordinary high-water mark of Lake Michigan.”

But Knight said the court should decide the case based on a simple concept. “This is a property right,” he said. “The water is the actual boundary,” he said. “The public trust is where it has always been — in the waters of Lake Michigan.”•

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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