Written by Alexis Andiman
This July, La Porte County Judge Richard R. Stalbrink ruled that Indiana holds the state’s Lake Michigan shore in trust for public uses, including swimming, sunbathing, and other recreational activities. The decision, Gunderson v. State, No. 46D02-1401-PL-606 (LaPorte Super. Ct. 2 July 24, 2015) establishes that citizens’ rights extend beyond the water to an administratively established boundary on the shore, regardless of beach ownership.
In concluding that lakefront property owners may not exclude non-residents from the shore, Judge Stalbrink relied on a centuries-old legal principle known as the public trust doctrine, which requires each state to preserve navigable waterbodies and underlying lands for the benefit of its citizens. Since the publication of an influential law review article in 1970, this doctrine has attracted renewed attention from environmental activists, state governments, and legal scholars seeking a comprehensive method to protect the public’s evolving interests in a wide variety of natural resources. During this period, some states applied traditional public trust concepts to the preservation of aesthetic and ecological values, in addition to navigation, fishing, and other water-based activities. More recently, proponents of a legal strategy known as atmospheric trust litigation have sought to expand the doctrine’s geographic scope in connection with their effort to halt global warming by forcing reductions in greenhouse gas emissions.
Despite fueling a lively academic conversation and achieving localized successes across the country, the public trust doctrine continues to face opposition, especially as applied to the Great Lakes shores. In 2005, the Michigan Supreme Court in Glass v. Goeckel reversed a lower court ruling to hold that the public trust doctrine protects a citizen’s right to walk on the exposed shore below Lake Huron’s ordinary high water mark – that is, in the zone where “the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.” Six years later, in State ex rel. Merrill v. Ohio Department of Natural Resources, the Ohio Supreme Court relied on long-standing state precedent to define public rights more narrowly, holding that the landward boundary of the public trust falls at Lake Erie’s “natural shoreline,” or “the line at which the water usually stands when free from disturbing causes.” (See this prior Great Lakes Law post on the Ohio case.)
Although Indiana once enjoyed a fairly robust public trust doctrine, fundamental questions concerning the extent and enforceability of citizens’ rights remained unaddressed until this July. Nearly a century ago, the Indiana Court of Appeals broadly asserted that the state lacks authority to “convey or curtail” the public’s interest in Lake Michigan. See Lake Sand Co. v. State, 120 N.E. 714, 716 (Ind. Ct. App. 1918). However, subsequent decisions did not explore the substance of this rule. The Indiana legislature has long recognized a public right to the aesthetic preservation, ecological protection, and recreational use of many inland lakes, but lawmakers stopped short of acknowledging that these rights should apply equally to Lake Michigan. Similarly, while state courts have repeatedly ruled that Indiana owns the land beneath navigable waterbodies in trust for public uses, judges previously had no occasion to identify the boundary at which this ownership terminates on the shore – a complicated inquiry especially with respect to Lake Michigan, where water levels can vary substantially across seasons and from year to year.
In the late nineteen-nineties, the Indiana Department of Natural Resources sought to resolve the ambiguity surrounding public use of Lake Michigan by adopting an administrative ordinary high water mark – in this case, a specific elevation separating submerged land from private portions of the shore. The controversy leading to this July’s decision arose in 2012, when the Town of Long Beach adopted an ordinance indicating that it would use the state’s administrative boundary to resolve disputes between lakefront property owners and the beach-going public.
Several residents filed suit in the LaPorte County Circuit Court, alleging that the public has no right to use the Lake Michigan shore and, thus, the ordinance constituted an illegal seizure of private property. The Town, a community organization, and local environmental groups – represented by the Conservation Law Center – countered that Indiana owns the land below Lake Michigan’s natural ordinary high water mark in trust for public uses. Although the trial court held that the ordinance did not unconstitutionally deprive the plaintiffs of lakefront property, it expressly declined to determine ownership of the disputed beach because the State of Indiana had not been joined as a party. See LBLHA, LLC v. Town of Long Beach, No. 46C01-1212-PL-1941, slip op. at 5 (LaPorte Cir. Ct. Dec. 26, 2013). In April, the Indiana Court of Appeals remanded this decision, with instructions to allow state participation. See LBLHA, LLC v. Town of Long Beach, 28 N.E.3d 1077, 1091 (Ind. Ct. App. 2015). Before the appeal was filed, however, a pair of plaintiffs had already initiated a second case against the State of Indiana and the Indiana Department of Natural Resources, which culminated in the LaPorte County Superior Court’s ruling this July.
Judge Stalbrink employed powerful language in support of his decision to prohibit private encroachment on the Lake Michigan shore, which “would invite the creation of a beach landscape dotted with small, private, fenced and fortified compounds designed to deny the public from enjoying Indiana’s limited access to one of the greatest natural resources in this State.” However, his ruling also raised concerns for public trust advocates. In choosing to uphold the state’s administrative ordinary high water mark instead of adopting a boundary defined by the slow-changing physical characteristics of the shore, Judge Stalbrink embraced a system in which the Indiana Department of Natural Resources could redefine – and severely constrain – citizens’ rights with relative ease. According to recent agency estimates, the current elevation preserves only a 17-foot strip of sand for public use. If a boundary set at the natural ordinary high water mark would have secured a greater share of the shore, Judge Stalbrink might have inadvertently run afoul of Indiana’s long-established rule that the sovereign may neither convey nor curtail citizens’ rights in Lake Michigan.
All parties have appealed. On October 23, the Indiana Court of Appeals ordered a temporary remand to allow Judge Stalbrink to rule on outstanding motions to correct error submitted by the community organization and environmental groups concerning the proper boundary of the public trust on the Lake Michigan shore. The next hearing is scheduled for December 18, so stay tuned for more developments in this case.