February 16, 2018

Indiana Supreme Court loses its way in public trust doctrine case

By Mark Miller Senior Attorney

The states bordering the Great Lakes have long tried to wrest control of private beachfront property from the owners of the property in favor of “the public.” That the private beachfront owners keep up the property, pay the taxes, live on the property, and, in fact own it is of no moment to government officials intent on  winning reelection  serving the public. The government will invariably declare the private beachfront to be subject to a ‘public trust’ that enable anyone to use the property as they see fit, even though the ‘public trust’ along the Great Lakes traditionally covered very limited activity on the lakes themselves– not the beachfront.

This week, the Indiana Supreme Court went one step further than those other Great Lakes states, however, and declared what was long understood to be private property sometimes subject to the public trust to actually be the property of the state of Indiana. The Court held that the property between the water’s edge of Lake Michigan and the ordinary high water mark on Lake Michigan was state property, not private, even though the beachfront owners have deeds going back to the founding of the state that show the beachfront owners own to the water’s edge.

PLF has filed a number of amicus briefs supporting the property owners in this case, and now will huddle with them as they decide what next steps to take. This decision is such an outlier that it will take some consideration to figure out how best to respond. It’s a bad day for property rights in Indiana.

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Gunderson v. State of Indiana; LBLHA, LLC v. Town of Long Beach, Indiana

The state of Indiana and some Indiana towns bordering Lake Michigan declared privately-owned lakefront property to be public land and invited the public to engage in recreational activities on it. The property owners sued because their dry beach property, for which they own the title deed and on which they pay taxes, is not subject to the “public trust doctrine” that applies to navigable water and the land beneath it. As amicus representing a lakefront property owner, PLF argues that because Lake Michigan does not have tides, the stationary waterline should mark the edge of the state’s legitimately held public trust. Any attempt to encroach on property rights landward of that waterline is a taking that requires just compensation.

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