Indiana court upholds public right to walk — and sunbathe — on Lake Michigan shore

Commentary

 By Alexis Andiman

A LaPorte County judge declined to modify citizens’ rights to use Indiana’s Lake Michigan beaches on Monday.

That left in place Judge Richard R. Stalbrink’s July ruling, which held that Indiana owns the state’s Lake Michigan shore in trust for public uses, including swimming, sunbathing and other recreational activities. Despite competing arguments from private property owners, local residents and environmental groups, the court determined 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, Stalbrink relied on a centuries-old legal principle known as the public trust doctrine. That doctrine 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 interested environmental activists, state governments and legal scholars seeking to protect the public’s interests in a variety of natural resources. Some states applied traditional public trust concepts to preserve aesthetic and ecological values, in addition to navigation, fishing and other water-based activities. More recently, proponents of a strategy known as atmospheric trust litigation have sought to expand the doctrine’s scope 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 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 mark was defined as 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 the Ohio Supreme Court relied on long-standing state precedent to define public rights more narrowly. It held 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.”

Resolving Indiana questions

Although Indiana once enjoyed a fairly robust public trust doctrine, fundamental questions concerning the extent and enforceability of citizens’ rights remained unaddressed until recently. 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.

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 apply equally to Lake Michigan.

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 where this ownership ends on the shore. That is 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 1990s, 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 state-owned submerged land from private portions of the shore. The controversy leading to Monday’s decision arose in 2012, when the town of Long Beach adopted an ordinance that would use the state’s administrative boundary to resolve disputes between lakefront property owners and the beach-going public.

Public shoreline use depicted as property seizure

Several lakefront residents sued in the LaPorte County Circuit Court, alleging that the public has no right to use the Lake Michigan shore and that the ordinance was 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, as defined by the physical characteristics of the shore, 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. In April, the Indiana Court of Appeals instructed the lower court to allow state participation. 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. That’s the case that culminated in Monday’s LaPorte County Superior Court ruling.

Although Stalbrink employed powerful language in support of his July decision to prohibit private encroachment on the Lake Michigan shore, his ruling raised concerns for public trust advocates. In upholding the state’s administrative ordinary high water mark instead of adopting a boundary defined by the slow-changing physical characteristics of the shore, 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, Stalbrink might have inadvertently run afoul of Indiana’s long-established rule that the state may neither convey nor curtail citizens’ rights in Lake Michigan.

Monday’s decision dismissed these concerns without explanation. All parties have appealed.

Alexis Andiman, is a graduate fellow attorney with the Conservation Law Center in Bloomington, Indiana.