HB 1031 – Reducing Public Ownership of Lake Michigan Shoreline, Slightly Expanding Public Uses

Rep. Miller has introduced HB 1031 which would have the effect of reducing public ownership of the Lake Michigan shoreline. I believe this legislation is in response to the 2018 Indiana Supreme Court case of Gunderson v. State. The Court stated:

A century ago, our Court of Appeals recognized that, among those rights acquired upon admission to the Union, the State owns and holds “in trust” the lands under navigable waters within its borders, “including the shores or space between ordinary high and low water marks, for the benefit of the people of the state.”

. . .

[W]e 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 and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary.

The Court described the basic controversy as being “whether the State holds exclusive title to the exposed shore of Lake Michigan up to the [ordinary high water mark], or whether the Gundersons, as riparian property owners, hold title to the water’s edge, thus excluding public use of the beach. The landowners argued that the boundary was wherever the water met the land at a given moment while the State argued that it was further landward, including the exposed shore. Ultimately, the Supreme Court sided with the State that it holds land in public trust to include the exposed shores as the water periodically recedes. The fact that there is a beach demonstrates that the water covers the area more than occasionally.

There was also an issue where the Department of Natural Resources created an administrative boundary at 581.5 feet above sea level for certain purposes as the ordinary high water mark. The Court determined that, whatever the other uses for that administrative boundary, DNR wouldn’t have the power to relinquish the State’s ownership interest in the land without a clear legislative directive.  Absent statutory guidance, the Court held that the public has a common law right at least to walk below the natural OHWM along the shores of Lake Michigan is a protected public use in Indiana. (Landowner’s wanted to say that the public had no particular rights beyond the water’s edge and the State and some public interest intervenors wanted the court to declare that other recreational uses were permitted. The Court demurred beyond saying that the public could walk on the beach, leaving the rest of the public’s rights up to the General Assembly to define.)

HB 1031 seems to relinquish some of the land that the Court declared was held in public trust: It states that the boundary of “private property is determined according to the legal description of the private property in the most recent deed to the property that is recorded in the county recorder’s office” and “to the extent that this section recognizes the existence of private property extending closer to Lake Michigan than the natural ordinary high water mark of Lake Michigan, the state of Indiana relinquishes its ownership of the shore of Lake Michigan.”

However, with respect to the land the public retains, the legislation says that the public can do more than just walk on it. They can also jog or run or engage in other activities in which the participant occupies a space on the beach only temporarily. However, the permitted activities specifically do not include “lying on the beach, playing volleyball, picnicking, or other non-transient activities.”

I’m not going to delve as deeply into this, but the legislation also gives DNR the exclusive authority to determine whether someone can install a seawall. This looks like it’s probably an end-run around Osborne v. the Town of Long Beach (also see a related federal court action) which involves a question about whether an owner’s desire to construct a seawall is subject to the Town’s zoning rules.