October 12, 2015

Indiana wants to take private property for free

By Mark Miller Senior Attorney

Indiana Wants Me is a great pretty good not-half-bad not awful reasonably memorable Top 10 song from the 1970s. In light of Pacific Legal Foundation‘s recent experiences in the Hoosier State, methinks an enterprising pop artist could reprise the song and change the title to Indiana Wants My Property.

The states bordering the Great Lakes have a history of trying to grab land bordering the lakes for free from private property owners. Like its neighbors, 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.

Not surprisingly, Indiana localities then followed the State’s lead. They told their law enforcement officers to stop enforcing trespassing laws upland of the water line below that fictional, administratively created “ordinary high water mark.” To be clear: the high water mark and the low water mark on Lake Michigan are the same. Since the Great Lakes are not tidal, both the actual high and actual low watermarks are the same – the waterline.

In turn, the private property owners along Lake Michigan sued Long Beach for declaratory relief regarding their ownership of the land in dispute and for a regulatory taking. A number of these lawsuits have arisen in the last year or two. Last year, we appeared as amicus in one of those cases, known as the LBLHA case. That case is ongoing.

Now, we represent a private property owner named Ray Cahnman as a friend of the Court in Gunderson v. State of Indiana at the Indiana Court of Appeals. The trial court in the Gunderson case incorrectly ruled that the “public trust doctrine” allows the state to claim the private property of the Gundersons up to this state-created “ordinary high water mark” without paying just compensation. That trial court erred, and we argue as much to the Indiana Court of Appeals in our amicus brief. When your deed says you own to the waterline, the State cannot ignore your deed and say, “no, you don’t, we’ve decided we want your property and now it’s ours.” Rather, the State of Indiana must respect the property deeds of the Gundersons and other private property owners on Lake Michigan, just as you have to respect the private property line of your neighbors. The State of Indiana is not above the law.

Thanks especially to our local counsel, Paul Harold, of LaDue Curran & Kuehn LLC, for his valuable work on this case.

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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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