Indiana Supreme Court rules public owns beach along state's Lake Michigan shores

Long Beach landowners Don and Bobbie Gunderson, the plaintiffs in the case, had contended that their property rights go up to the water's edge, while the State and multiple "Intervenors" — Alliance for the Great Lakes, Save the Dunes and Long Beach Community Alliance — content that property rights end at the ordinary high water mark (OHWM), leaving the space between that mark and the water's edge available for public use.

The ruling penned by Justice Mark Massa discusses at length that the state has held, in trust, since gaining statehood in 1816 "the lands under navigable waters within its borders, 'including the shores or space between ordinary high and low water marks, for the benefit of the people.'"

In explaining that the state holds this land in trust, Massa also explains that the State has not relinquished those rights, despite contentions from the plaintiffs.

Massa writes:

"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. 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."

Primarily at dispute is the "precise location of the OHWM." The Gundersons contend that mark is "wherever the water meets the land at any given moment," creating a sort of movable boundary. The State and the multiple Intervenors, on the other hand, "locate the boundary further landward to include the exposed shore."

In making his case, Massa goes back to English common law, citing, "both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the crown of England, are in the king." However, Massa writes, "the public interest ... encumbers the Crown's title ... to the waters, the shore, and the submerged lands, as 'their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the king's subjects.'"

Further at stake is the manner in which these public lands can be enjoyed. LBCA urged the court to "recognize reasonable and limited recreational public uses including fishing, boating, swimming, sunbathing, and other beach sports."

However, attorneys for Amicus Curiae Pacific Legal Foundation, another party to the case, argued that uses should be limited to fishing, commerce and navigation. 

Regarding this matter, the court again sided in the public interest:

"To the extent that we are asked to limit public use to the waters only, as the Gundersons suggest, such a restriction is impractical. There must necessarily be some degree of temporary, transitory occupation of the shore for the public to access the waters, whether for navigation, commerce, or fishing — the traditional triad of protected uses under the common-law public trust doctrine."

The case could still be appealed at the U.S. Supreme Court level because the boundaries Indiana acquired at statehood are a matter of federal law.