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Battles On The Beach

| Jan 8, 2020 | Firm News |

Legal battles over the rights to land adjacent to Lake Michigan have moved from Long Beach to the town of Porter.

The disputes center on the issue of whether the public has the right to enjoy the beach or whether the shoreline belongs instead to property owners.

The issue appeared settled by the Indiana Supreme Court in 2018 when the court “drew a line in the sand” in the Long Beach case by stating: “Today, we hold that the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high-water mark (OHWM) and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary” (The Gunderson decision.)

The OHWM is defined by the Indiana Administrative Code as ‘The line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics.”

This holding was then the basis for an Indiana statute enacted in 2000 which confirmed that all of us have the right to use the shoreline for walking, fishing, boating, swimming and any other recreational purpose and that adjacent private property owners are not entitled to the exclusive use of the beach or the water.

Not so fast said the town of Porter residents. They sued in Federal court in 2019 claiming that the Gunderson decision was unconstitutional and that it meant that their land had been taken without just compensation. The Federal court found against them holding that their claim that the Gunderson decision was an unconstitutional taking of their beachfront property was not subject to Federal court review due to the sovereign immunity provided to states by the 11th amendment to the U.S. Constitution.

Importantly, the court also held that even if there were a legitimate Federal issue, the Porter residents still would lose because no one took their land without compensation since they never owned the Lake Michigan shoreline in the first place.

The Gunderson decision, the Federal court held, did not transform private property into public property but simply clarified where the boundary of the public trust had always existed along the shores of Lake Michigan.

Undeterred, the Porter residents took an appeal to the U.S. 7th Circuit Court of Appeals in Chicago but appear to have not fared well there either with one of the judges observing that this issue was the same as the one decided by the state courts, but the residents just didn’t like the answer they were given.

Assuming that the 7th Circuit affirms and that the U.S. Supreme Court decides not to take the case as the court did when it declined to take the Gunderson case, the issue is settled once and for all.

What does this mean? Despite those signs along the beach which say “Private Beach” the beaches in Indiana on Lake Michigan are open to all for walking, fishing, boating, swimming and any other recreational purpose and that adjacent private property owners are not entitled to their exclusive use.

This article is authored by attorney Larry G. Evans, Partner, at Hoeppner Wagner & Evans LLP. Larry practices in the area of Litigation.

Hoeppner Wagner & Evans LLP is a law firm with offices in Merrillville and Valparaiso. Visit our website www.hwelaw.com for more information, or give us a call at 219-769-6552 or 219-464-4961 or follow us on LinkedIn®, Facebook® or Twitter®. We look forward to addressing various legal issues of interest to you in this feature and encourage you to submit topics of interest.

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