INDIANAPOLIS — The Indiana Supreme Court declared Wednesday in a landmark decision that Lake Michigan's shoreline is open to all, and adjacent property owners cannot exercise exclusive control of the beach between their homes and the water.
The 4-0 ruling by the state's high court definitively sets the ordinary high water mark as the boundary between the state-owned land under Lake Michigan and the interests of private property owners.
The high water mark, essentially the edge of the beach, is defined as the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear and natural line on the bank, shelving or changes in the soil's character.
Justice Mark Massa, writing for the Supreme Court, said the land extending from that line and continuing into and under the water of Lake Michigan was granted to Indiana at statehood, and has continuously been held in trust for Hoosiers since 1816.
Within that area individuals are entitled to access the water for the traditional purposes of navigation, commerce or fishing. The court also said, at a minimum, walking on the beach is a protected public use.
Beyond that, however, the justices said it's up to the General Assembly to decide whether to enact "any enlargement of public rights on the beaches of Lake Michigan."
The ruling settles a longstanding dispute that could have dramatically curtailed public access to the lake, and imperiled Northwest Indiana tourism, had the justices sided with the plaintiffs, Don and Bobbie Gunderson, of Long Beach.
The Gundersons claimed the deed to their lake-adjacent property in LaPorte County showed it extending to the water's edge, regardless of where the water's edge is at any given time.
As such, they argued they are entitled to exclusive control over that land — meaning no one can use or access the beach by their house without their permission.
In his 29-page ruling, Massa takes apart the Gundersons' argument by tracing the history of littoral and riparian land rights from ancient English common law, through the U.S. Constitution and into the Indiana Code.
He finds that land up to the ordinary high water mark consistently has been recognized as the exclusive province of the sovereign — be it the queen of England or the people of Indiana.
And while the state has the right to convey that interest, it has not done so along the shore of Lake Michigan, Massa said.
The state high court ruling still potentially could be appealed to the U.S. Supreme Court as the exact boundaries of the portion of Lake Michigan that passed to Indiana at statehood is a question of federal law.
Justice Geoffrey Slaughter, a Crown Point native, did not participate in the case. He has family members who own lakefront property in Ogden Dunes.