INDIANAPOLIS — A yearslong dispute over private property rights and public access to Lake Michigan is headed to the Indiana Supreme Court, whose decision could affect every visitor and Region resident who goes to the beach in Northwest Indiana.
The Hoosier justices will decide in coming weeks whether to grant transfer, and thereby vacate, a landmark Indiana Court of Appeals decision that all parties to the case of Gunderson v. State believe was decided incorrectly.
At issue are how far inland, beyond the actual water of Lake Michigan, does the state's ownership go; how close to the water an individual can own property; and who possesses the land in between that's sometimes covered by water?
The Court of Appeals, in a 3-0 ruling, affirmed in December that the state's interest extends to the "ordinary high water mark," which it defined as the line on the shore where the presence and action of water is continuous enough to distinguish it from land through erosion, vegetation changes or other characteristics.
At the same time, the appeals court held that the boundary of waterfront properties is the lake's ordinary low water mark, with possession of the beach in between being shared by property owners and the state — a first-of-its-kind decision for Indiana.
Indiana Solicitor General Thomas Fisher, a Rensselaer native, believes it's indisputable that the state owns the land up to the ordinary high water mark and its interest does not overlap with lakefront property owners to the low water mark.
In his petition for transfer to the high court, Fisher points out that Indiana's exclusive title to the land up to the high water mark was established at statehood in 1816, and it cannot simply be given away through a court ruling.
He said public policy also dictates that the state should unilaterally control to the high water mark, as the Indiana Department of Natural Resources is required to deposit sand to prevent erosion, and co-ownership of the beach might undermine that responsibility.
Moreover, he said shared ownership may limit public use of the beach, since lakefront proprietors potentially could claim a right to control who enters "their" property and what behaviors are allowed.
The original plaintiffs, Don and Bobbie Gunderson, of Long Beach, saw things differently.
They believed their land on Lake Michigan extends to the water's edge, regardless of where the edge is at any given time, and that they were entitled to exclusive use of that land — meaning no one can walk, sunbathe or picnic on the beach by their house without their permission.
The Gundersons cited precedent dating back to the 1787 Northwest Ordinance to make their case that the government's interest is limited to navigable waters and does not include shorelines, which they claim may be privately owned.
"Any boundary other than the navigable waters of Lake Michigan, for the public trust or the Gunderson property, is an arbitrary line in the sand and contrary to law," said Michael Knight, attorney for the Gundersons.
In particular, they want the high court to affirm that only the state owns the land up to the high water mark, no matter what is shown on any land deed purporting to grant that property to a private owner.
They additionally seek to scuttle the notion of shared ownership to the low water mark as they claim that only the General Assembly has the authority to transfer any property below the high water mark, which it has not done.
Meanwhile, the Pacific Legal Foundation, on behalf of Porter landowner Ray Cahnman, wants the Supreme Court to adopt the Gundersons' argument that lakefront properties extend to the water's edge and any "taking" of land above that point must be accompanied by just compensation.
Another possible resolution would be for the Supreme Court to toss out the Court of Appeals decision and save its definitive result for the future, since the Gundersons have sold their lakefront property to a developer, and this no longer is a "live" dispute.
The state told the high court that's the most appropriate outcome, because the Gundersons seemingly concealed the fact that the contested land was sold to So Dun LLC, prior to LaPorte Superior Judge Richard R. Stalbrink Jr., issuing his initial ruling against the Gundersons in 2015.
"The court sometimes entertains moot cases for the sake of resolving pressing questions, but the state has held public trust title to its Lake Michigan shoreline for hundreds of years without anyone challenging it until the Gundersons," Fisher said. "There is no pressing need to address public trust as an abstract issue."
Knight denied there was any attempt to confuse or conceal ownership of the property. He said the current owner is willing to replace the Gundersons as plaintiff, if needed.
Regardless, the Gundersons and the interest groups say the case should continue to a Supreme Court decision, because "it presents an important legal question of first impression regarding property rights of Indiana landowners adjoining Lake Michigan."