The Indiana Supreme Court is taking up a long-running dispute that pits public access to Lake Michigan against the rights of lakeside property owners.
The high court will decide in the coming weeks whether to vacate a state Court of Appeals decision that all parties in the case believe was decided incorrectly.
The dispute involves questions of how far inland the state's ownership extends beyond the lake's actual water; how close to the water an individual can own property; and who possesses the land in between that's sometimes covered by water.
The original plaintiffs in the case, Don and Bobbie Gunderson of Long Beach, contend that their lakeside land extends to the water's edge, regardless of where the edge is at any given time. They also contend that they were entitled to exclusive use of that land - and that no one can walk, sunbathe or picnic on the beach by their house without their permission.
In December, the state Court of Appeals unanimously affirmed that Indiana's interest extends to the "ordinary high water mark." The court defined that as the line on the shore where the presence and action of water is continuous enough to distinguish it from land through erosion, vegetation changes or other characteristics.
But the court also held that the boundary of waterfront properties is the lake's ordinary low water mark and that possession of the beach in between is shared by property owners and the state. That was a first-of-its-kind decision for Indiana.
Indiana Solicitor General Thomas Fisher said he believes it's indisputable that the state owns the land up to the ordinary high water mark and that its interest does not overlap with lakefront property owners to the low water mark.
In his petition seeking transfer of the case to the high court, Fisher noted that Indiana's exclusive title to the land up to the high water mark was established at statehood in 1816, and it cannot simply be given away through a court ruling.
But the Gundersons have cited precedent dating back to the 1787 Northwest Ordinance to make their case that the government's interest is limited to navigable waters and does not include shorelines, which they claim may be privately owned.
"Any boundary other than the navigable waters of Lake Michigan, for the public trust or the Gunderson property, is an arbitrary line in the sand and contrary to law," said the Gundersons' attorney, Michael Knight.
The Alliance for the Great Lakes, Save the Dunes and the Long Beach Community Alliance are also asking the state Supreme Court to set aside the lower court ruling and independently resolve the dispute.
In particular, they want the high court to affirm that only the state owns the land up to the high water mark, no matter what is shown on any land deed purporting to grant that property to a private owner.
