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The US Supreme Court denied certiorari meaning the IN Supreme Court decision is settled law... but what's next?

by Natalie Johnson, Executive Director, Save the Dunes

A moment of celebration. Yesterday, the United States Supreme Court refused to review the Indiana Supreme Court decision that the State of Indiana holds the Indiana beaches in trust for the benefit of the public below the ordinary high watermark.  After five years of litigation, the public is now clearly permitted to use and enjoy the beach without interference from the beachfront property owners below the ordinary high watermark, in accordance with the public trust doctrine. 

But to ensure the public trust is upheld, your support continues to be needed. The IMMEDIATE PRIORITY is to support proposed legislation that respects the law and supports the public’s rights under the public trust doctrine. Some of you have already helped by contacting your senators, but it's not too late to do so now. Each of us must EMAIL our State Senators asking them to SUPPORT SENATOR TALLIAN’S SB 553!!!  Please include “SUPPORT SB 553” as the subject line of emails!

Follow the steps laid out by our partners at the Long Beach Community Alliance:

Email the following list of State Senators (Senators that are key in getting this bill passed) the following information:

  • YOU SUPPORT INDIANA CITIZENS’ RIGHT TO USE FOR ALL TRADITIONAL USES THE STATE OWNED PUBLIC BEACHES HELD IN TRUST FOR ALL CITIZENS!
  • DESCRIBE HOW YOU AND YOUR FAMILY USE THE BEACH AND FOR HOW LONG YOU HAVE BEEN DOING SO (e.g, FOR GENERATIONS, NUMBER OF YEARS, ETC)!!!
  • THE INDIANA SUPREME COURT SAID THE INDIANA GENERAL ASSEMBLY SHOULD DEFINE RECREATIONAL USES OF THE INDIANA LAKESHORE BELOW THE ORDINARY HIGH WATERMARK!  THIS IS PRECISELY WHAT SB 553 DOES!!

Key Senators to Contact Today:

Eric Bassler / R-39 bassler@iga.in.gov

Jon Ford / R-38 ford@iga.in.gov

Jim Merritt / R-31 merritt@iga.in.gov

Mark Messmer / R-48 messmer@iga.in.gov

Ryan Mishler / R-9 mishler@iga.in.gov

Greg Walker / R-41 walker@iga.in.gov

Michael Young / R-35 senator.young@iga.in.gov

Andy Zay / R-17 zay@iga.in.gov

 

Note that this list of senators are mostly different from those that we asked you to contact last week.

 

Mike Bohacek/ 8-R (Michiana) (317) 232-9541 bohacek@iga.in.gov (note: LOCAL SENATOR BOHACEK has not expressed a firm position on pending SB 553 – PLEASE REQUEST HE AFFIRM HIS SUPPORT AND ASK HIS FRIENDS AND NEIGHBORS TO DO THE SAME!)

When we say the fight isn't over yet, we mean it. Save the Dunes and our partners remain aware and continue to closely monitor concerted efforts currently underway in the Indiana General Assembly limiting the rights of the public with respect to the lakefront. We're currently working with experts to apply the best strategy to protect good legislation and fight poor legislation that would harm the public trust. Please know that any efforts within the General Assembly to impair, the public’s rights to, or otherwise limit the public’s uses of such property as protected under the public trust doctrine, run contrary to now-settled law. We highly anticipate additional action alerts to be forthcoming. 

SB 553 – Sponsor: Sen. Tallian
The Background

In 2014, the Gunderson Trust, a lakefront residential property owner, filed a lawsuit in the LaPorte County Superior Court seeking a declaration that it owned the Indiana Lake Michigan shore to the “water’s edge” and had a right to exclude other Indiana citizens from using it.

The small, precious portion of Indiana’s sandy Lake Michigan shore not occupied by industrial ports is a natural reserve of dunes and beach used by generations of Indiana citizens for swimming, boating, sunbathing, picnicking, birding, fishing, shelling, and beach sports – and cherished for just relaxing and enjoying the Lake and dune environment. Not only is the shoreline fundamental to the state’s identity, but the recreational tourism it generates provides extraordinary economic value. The Lake Michigan dunes and beaches attract roughly 1.8 million visitors each year. Activities such as recreational boating, sports fishing, swimming, and other beach activities provide over $ 3 billion to Indiana’s economy each year.  

Indiana Supreme Court’s Ruling: Gunderson v. State
(90 N.E.3d 1171(Ind. 2018)
After working its way through the courts, the Gunderson dispute was decided in favor of all Indiana citizens by the Indiana Supreme Court on February 14, 2018. The Court made the following three key rulings but left one decision for the Indiana General Assembly. SB 553 is designed to address the limited question of what recreational uses are permitted. It provides that all ordinary recreational uses are permitted.

  • What is the boundary of public and private property on the Lake Michigan shore?
    • The Court held that the boundary separating public and private ownership along the shores of Lake Michigan is the natural ordinary high water mark (OHWM), a legal standard established in Indiana and federal law reflecting the high point to which the waters extend on a recurring basis, as shown by a combination of changes in soil and vegetation and other confirmatory factors.
  • Who may use the shore of Lake Michigan lakeward of the OHWM?
    • The Court held that the State holds the Lake Michigan shore lakeward of the OHWM in trust for the public’s use under the Public Trust Doctrine, a federal rule of law on navigable waters that goes back 100’s of years and which the State cannot alter for Lake Michigan.
  • What activities are permitted on the shore held in trust for the public? (Addressed by SB 553)
    • The Court held that, minimally, the Lake Michigan shore can be used for fishing, navigation, and commerce, as well as walking on the shore. But, no one may permanently occupy or monopolize the shore to the exclusion of others. The Court also recognized that the Lake Michigan shore has traditionally been used for recreation, but expressly left it to the Indiana General Assembly to define the scope of permissible recreational activities.