September 25, 2014

Defending property owners along the Great Lakes

By Mark Miller Senior Attorney
indiana map
Via FreeWorldMaps.net

Longtime readers know that Pacific Legal Foundation has defended property owners along the Great Lakes for many years.  These states have a history of trying to grab land for free from private property owners (see here for an example in Michigan, and here for an example in Ohio), using an ersatz version of the centuries-old public trust doctrine to shield what amounts to grand theft property.

The problem for the bureaucrat property takers in the Great Lakes states is this: there is no high and low watermark akin to the high and low water marks along the coastal states that border the Atlantic and Pacific.  The Great Lakes are non-tidal. Thus, the public trust doctrine, which as applied here holds that the state of Indiana owns the lake bed underneath Lake Michigan when within the boundaries of the State, only extends to the actual water line of Lake Michigan in Indiana, as that is where the water actually stops. Thus, the water of Lake Michigan is available for the public use by virtue of the public trust doctrine, but the sand upland of the water line is the property of those private property owners who hold the deed to the water line.

Like its neighbors Michigan and Ohio, Indiana recently decided it wanted 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 into private property all along the lake in Indiana.  Relying upon an unsupportable interpretation of the public trust doctrine, the State announced that the people of the State could use, at will and without permission, the private property between the water line and the fictional “ordinary high water mark,” since the State now astonishingly asserted that it held that property in the public trust.

Not surprisingly, the Indiana town of Long Beach—which borders Lake Michigan—then followed the State’s lead, and told its law enforcement officers to stop enforcing trespassing laws upland of the water line below the fictional “ordinary high water mark,” since the property was no longer the private property owners’ land.

The private property owners along Lake Michigan in Long Beach recognized a taking when they saw one, and they sued.  Their case is now pending at the Indiana Court of Appeals, and—just as we did in Ohio a few years ago in a similar case—Pacific Legal Foundation has filed a friend of the court brief in support of private property rights.  In the brief, PLF informs the Court of the history of the public trust doctrine along the Great Lakes, and explains that The Fifth Amendment’s protection of private property bars the state from expanding the public trust doctrine in a manner that divests private landowners of their property without compensation, as the State tried to do in this case.

We look forward to a decision in favor of property rights in the great state of Indiana.  Thanks especially to our local counsel, Paul Harold, of LaDue Curran & Kuehn LLC, for his valuable assistance on this case.

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