Cause No: Indiana Natural Resources Commission (NRC) No. 23-036W
Culminating in the 2018 Indiana Supreme Court case of Gunderson v. State, CLC won a hard-fought legal battle affirming that the beaches of Lake Michigan below the common law or natural ordinary high water mark (OHWM) are held in trust by the State for the benefit of all Hoosiers to enjoy. The Court also confirmed that the DNR, as the steward of these public trust resources, cannot fritter away these public trust rights through its regulatory authority. In the wake of Gunderson, the Indiana General Assembly codified these principles when it passed the Public Trust Statute to eliminate any question that the citizens of Indiana have a “vested right to enjoy the natural scenic beauty of Lake Michigan” for recreation and other purposes—meaning Hoosiers have a legally protected right to enjoy the lakeshore in “conditions produced by nature without manmade additions or alternations.” Ind. Code § 14-26-2.1-4 (emphasis added). Despite the legislature’s clear mandate, CLC had to take the Indiana Department of Natural Resources (DNR) back to court for again violating the public trust.
This time, DNR approved the construction of a mile-long stone revetment along the Town of Ogden Dunes’ stretch of shoreline, all funded by beachfront homeowners for their private benefit. DNR approved the massive stone wall without delineating Lake Michigan’s natural OHWM and, thus, had no idea whether or how much of the revetment would be built on public trust land. Without a proper OHWM delineation, DNR could not have evaluated the true nature and extent of public trust impacts, whether mitigation could be appropriate, or if the permit should be denied so as not to alienate public trust rights. DNR also flatly ignored the serious concerns raised by the National Park Service that the revetment will cause devastating erosion and destroy critical habitat in the adjacent Indiana Dunes National Park—one of the nation’s most biodiverse parks that is treasured and visited by millions of people each year. Because DNR can and must do better, we filed a legal challenge on behalf of Save the Dunes to revoke DNR’s unlawful approval of the revetment.
Current status: We retained the leading expert in the field of coastal engineering who has done extensive study of the serious harm caused to Lake Michigan and other Great Lakes’ coastal habitats from building such hardening structures. With his testimony, admissions of DNR staff, and other evidence obtained in discovery, we moved for summary judgment on Save the Dunes’ claims that DNR abdicated its duty under Indiana law to safeguard the public trust in Lake Michigan.
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