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Thursday, December 08, 2016

Ind. Decisions - "Court of Appeals finds Hoosiers have right to walk near Lake Michigan"

Dan Carden of the NWI Times reports on the COA opinion yesterday in Don H. Gunderson v. State of Indiana (ILB summary here). Some quotes:

Northwest Indiana property owners whose land borders Lake Michigan cannot restrict individuals from accessing the lake, fishing or walking on the beach, so long as visitors remain on ground that's usually covered by water.

In a landmark property rights decision, the Indiana Court of Appeals on Wednesday affirmed that the shore of Lake Michigan is owned by the state and held as a public trust for all Hoosiers.

The state's interest extends to the "ordinary high water mark," which the court defined 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.

That's a more flexible definition than the specific numerical level used since 1995 by the Indiana Department of Natural Resources to identify the lake's ordinary high water mark.

The court determined that the DNR rule setting a numerical ordinary high water mark impaired the rights of Hoosiers to fully enjoy the Lake Michigan shoreline, and declared it invalid.

The change means landowners bordering Lake Michigan have property rights that overlap with the state's public trust.

Specifically, the court explained that waterfront properties extend to the ordinary low water mark, subject to the public's right to use the shore area between that point and the ordinary high water mark.

"Granting lakeshore owners the right to exclude the public from land between the low and high water marks would be inconsistent with the public trust doctrine," the court said in its 3-0 ruling.

Here is a long list of earlier ILB posts on this dispute.

Posted by Marcia Oddi on December 8, 2016 09:36 AM
Posted to Ind. App.Ct. Decisions