May the government allow strangers to recreate on your private, beach-front property for free? That’s the question the Indiana Supreme Court is being asked to consider in an important property-rights case. At issue is the common-law “Public Trust Doctrine,” according to which a state holds navigable waters and the land beneath “in trust” for public navigation, commerce, and fishing.
But as we previously reported, states and local governments have strayed far beyond these traditional limitations and have asserted control over private beaches, well above the water’s edge, for “public” recreational purposes such as tanning and volleyball.
Don and Bobbie Gunderson challenged this expansive application of the Public Trust Doctrine and sought an order declaring that their private property (1) extends to the water’s edge of Lake Michigan and (2) is not subject to the Public Trust Doctrine. The trial court ruled against the Gundersons on both counts, holding that “public trust” property extends beyond the water’s edge up to a fictional, administratively created “ordinary high water mark”—even though there is no “high-water mark” on the non-tidal Lake Michigan.
The court also held that the Gundersons’ property, from the water’s edge to the fictional “high-water mark,” could be used by the public for virtually any purpose: “commerce, navigation, fishing, recreation, and other activities related thereto, including but not limited to boating, swimming, sunbathing, and other beach sport activities”—without compensating the Gundersons. In effect, the trial court placed a “recreational” encumbrance on the Gundersons’ property but ruled that no one had to pay for it.
The court of appeals reversed the trial court’s order adopting the administratively created “ordinary high water mark,” and held that the common law controls the boundary of public-trust land. The court of appeals also appeared to overrule the expansive scope the trial court gave to the Public Trust Doctrine, concluding that the land held “in trust” is open to only “limited use, such as gaining access to the public waterway or walking along the beach.” But at the end of its opinion, the appellate court “affirm[ed] the trial court’s findings regarding the nature and scope of the public trust as it relates to Lake Michigan.”
The Gundersons have petitioned the Indiana Supreme Court to accept this case for review, and PLF, on behalf of a private-property owner named Ray Cahnman, has filed an amicus brief in support. We argue that the Public Trust Doctrine should be limited to its traditional scope, which was settled when the U.S. Constitution was ratified. Further, we argue that if this doctrine is nonetheless expanded, then the property owners are entitled to just compensation pursuant to the Fifth Amendment.
First, the courts below did not consider whether the scope of the Public Trust Doctrine could be expanded in the first place. They simply assumed that to be the case and then declared that recreational uses should be within the scope of the Public Trust Doctrine. This standard-less rule would grant governments free reign to identify any pleasurable activities that may promote public enjoyment of waters as matters within public’s “right” to use private property.
Second, assuming that these uses may in fact be valuable to the public, private landowners should not be compelled to give their land away for free. Otherwise, as the Supreme Court explained, these landowners will “alone  bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Neither Indiana court considered that an increase in “public trust” land necessarily results in a decrease in landowners’ property rights—in particular, the fundamental Constitutional right to exclude people from one’s property.
The Constitution’s “just compensation” requirement is particularly important in the context of the Public Trust Doctrine because supporters of an expansive reading of the doctrine acknowledge that they use it precisely to avoid the “just compensation” liability. Thus, even if a court rules (incorrectly, in our view) that the Public Trust Doctrine allows states to take private property for recreational use by the public, the states nonetheless remain bound by the Constitution’s requirement of just compensation. As the Massachusetts Supreme Judicial Court explained, a permanent physical intrusion into the property of private landowners “is a taking of property within even the most narrow construction of that phrase possible under the Constitution of the Commonwealth and of the United States. . . .”
Therefore, we hope that the Indiana Supreme Court grants the Gundersons’ petition and confirms the long-standing principles of the Public Trust Doctrine that are consistent with individual rights in private property.
Thanks especially to our local counsel, Paul Harold and Stephen Judge of LaDue Curran & Kuehn LLC for their valuable work on this case.