December 9, 2016

Who owns what on the Indiana shoreline of Lake Michigan?

By Mark Miller Senior Attorney

Earlier this week, the Indiana Court of Appeals offered its view of the long-running battle in that state between property owners on Lake Michigan who expect the law to protect property rights, and the members of the public who demand the right to traipse across those property owners’ property without paying for the right, contrary to the Fifth Amendment. There have been a few cases that have arisen regarding this dispute; this particular case is known as the Gunderson case.

In a nutshell, the trial court in this case incorrectly ruled that the “public trust doctrine” allows the state to claim the private property of property owners on Lake Michigan up to a “high water mark” (despite the fact that there is no “high water mark” on the non-tidal Lake Michigan) without paying just compensation. That trial court erred, and we argued as much to the Indiana Court of Appeals in our amicus brief. Those who own property along Lake Michigan, like the Gundersons, have deeds that say they own to the waterline. 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” (unless, of course, it pays just compensation for the public’s use of that property). 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.

Unfortunately, the Fifth Amendment lost this round. The Court held that the State of Indiana can take away the right to exclude others from the private property of those who own property along Lake Michigan, and give the right to walk through that property to the public up to a make-believe “high water mark,” without just compensation.

We understand that the property owners are reviewing their options. PLF will continue to take an interest in this case to do what it can to make sure this constitutional wrong is constitutionally righted.

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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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