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.
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.
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.”•