The states bordering the Great Lakes have a long sought to steal land bordering the lakes from private property owners. Indiana recently tried to take this land upland of the waterline on Lake Michigan, all the way to a fictional, administratively created “ordinary high water mark” that encroaches well onto private property all along the lake in Indiana. Since the Great Lakes are not tidal, both the actual high and actual low watermarks are the same – the waterline. Indiana localities followed the State’s lead and stopped enforcing trespassing laws on the disputed land.
Private property owners along Lake Michigan sued the state (Gunderson) and localities (e.g., Long Beach) for declaratory relief regarding their ownership of the land in dispute and for a regulatory taking. A lower rejected the property owners’ claims on the theory that the “public trust doctrine” means that the state always owned the land, regardless of whatever a deed might say, and may use the beach for any activity – including boating, swimming, sunbathing, volleyball, and so on. This expands the doctrine far beyond its standard definition, which is that the state holds navigable waters and the land beneath “in trust” only for public navigation, commerce, and fishing.
As amicus on behalf of a lakefront property owner, PLF argues that the public trust doctrine must be applied within its traditional limitations, both as to the scope of the land affected and the activities permitted. To the extent that state encroaches on private property for other purposes, it owes the landowners just compensation for the taking of their property.