Indiana and public-interest groups took a team approach Thursday to arguing for public access to the shore of Lake Michigan — a claimed public right that private landowners argue never existed in state law.
“Where did this new Indiana common law come from?” Barnes & Thornburg LLP partner Peter Rusthoven argued, saying nothing in state statute or case law gives Indiana a claim for the public to anything except the navigable waters of Lake Michigan and the soil beneath.
Rusthoven argued for landowners Don and Bobbie Gunderson, who claim their deed in the lakefront community of Long Beach extends north to Lake Michigan and bars public use above the Great Lakes water. “It goes to the water’s edge, wherever that water happens to be,” he told the justices during oral arguments before the Indiana Supreme Court.
Three attorneys argued that this interpretation, which the trial court and the Court of Appeals rejected in differing terms, is contrary to common law under the public trust doctrine dating to England and adopted on these shores during the colonial era. The say adopting such an interpretation would be contrary to the public trust doctrine and prohibit public activities such as walking, fishing and recreation along Indiana’s 45-mile lakeshore.
Jeffrey Hyman of the Conservation Law Center affiliated with Indiana University argued for public-interest intervenors Alliance for the Great Lakes and Save the Dunes. He told the court this case was about preserving what Indiana received at statehood in 1816 — a claim not just to the navigable waters of Lake Michigan, but its lakebed rising up the shore to the ordinary high-water mark.
The U.S. Supreme Court, he said, has repeatedly ruled that states acquire their navigable water bodies at statehood below the ordinary high-water mark.
“We have an opportunity to maintain what we got in 1816,” Hyman told the court. “We don’t have any reason to give it away.”
Chicago attorney Patricia Sharkey represents the Long Beach Community Association and told the court the Gundersons had turned their peaceful beach community into a “war zone” with a campaign to arrest as trespassers people who peacefully used the beach for strolling and sunbathing. She urged the court to establish the rights of long-standing public use.
“The scope of public use is very important to us, because we have generations of people using the beach,” she said. “The trend in law is recreational uses being recognized.”
Rusthoven urged justices to disregard characterizations of his clients, which he told the court was not in the record and therefore not properly before the court. What was in the record, Sharkey said, were affidavits of 14 people who talked about how they had used the Long Beach lakeshore over the years.
But Justice Steven David wondered whether there were limits to the public’s right to use the shore. Could someone, for instance, camp there, or build tiny cabins and rent them?
Rusthoven said such issues could arise in court. “What kind of litigation are we inviting?” he asked, with a ruling that says lakefront landowners do not own to the water’s edge. He described the Gundersons’ deed designating the northern property line as “a moveable freehold to the water’s edge.
“We have a very simple, bright-line test” for where the Gundersons’ lakeshore property ends, Rusthoven said. “Everybody can see where the water is.”
David also wondered whether a ruling in favor of public rights might represent a taking without compensation to private landowners.
Sharkey said litigation over use of the lakeshore is bound to happen no matter where the line is between public and private property rights, and she replied to David’s taking concern by saying, “You cannot take for yourself what is public.”
Indiana Solicitor General Thomas M. Fisher told the justices he agreed with Justice Mark Massa that the 1892 U.S. Supreme Court decision in another Lake Michigan case, Illinois Central Railroad v. Illinois, should govern this case. Illinois Central decided that the state held not just the navigable waters, but the lakebed as well.
He disputed Rusthoven’s assertion that the public trust doctrine should not apply to the shores of Lake Michigan because they are not tidal waters. Fisher said everyone has access to the waters and the shores below the ordinary high-water mark of Lake Michigan, and that the Department of Natural Resources has an administrative right to determine for its purposes of superintending the lake where that line is.
The LaPorte Circuit Court pleased neither side with a ruling that the ordinary high-water mark of Indiana’s Lake Michigan shore at Long Beach was 581.5 feet above sea level. Parties said in some areas this elevation was in the lake, and in other places, it deep into the shore. Rusthoven replied to Chief Justice Loretta Rush’s inquiries about this administrative line by saying DNR has no authority to establish what anyone’s property line is.
The Court of Appeals reversed in part, holding that the shore between the ordinary high-water mark and the lake must be open to limited public use such as access to the water or walking along the beach.
Hyman said while Lake Michigan is not a tidal body, it is “a highly variable and dynamic system.” An increase of one foot in lake depth can move the water’s edge inland as much as 75 feet depending on the slope of the shore’s elevation, he said.
Meanwhile, David also raised with Rusthoven the issue of standing for the Gundersons, who no longer own the property at issue in the case. Rusthoven said the current property owners would take up the case if required, but in any case, he didn’t believe the transfer of the property created an issue of standing for the plaintiffs.
The case is Bobbie Gunderson, et al. v. Alliance for the Great Lakes, Inc., et al., 46S03-1706-PL-00423. Oral arguments may be viewed here. Justice Geoffrey Slaughter did not participate.