Federal appeals court affirms public ownership of Lake Michigan shoreline

In a 3-0 decision, the 7th U.S. Circuit Court of Appeals in Chicago said Wednesday the three lake-adjacent property owners in the town of Porter who claim their holdings include a private beach on Lake Michigan lack standing to challenge the Indiana high court ruling and statute in federal court.

Circuit Judge Diane Wood, writing for the federal appeals court, said Raymond Cahnman, Randall Pavlock and Kimberley Pavlock failed to establish their beach property was "taken" by the state because the 2018 Gunderson v. State ruling by the Indiana Supreme Court clarified they never owned a private beach on Lake Michigan.

The Gunderson decision held that Indiana owns — and has since statehood in 1816 — the land under Lake Michigan and the adjacent shoreline up to the ordinary high-water mark.

That mark 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.

The 4-0 Gunderson ruling was codified in 2020 as House Enrolled Act 1385, along with the right of Hoosiers to use the shoreline for walking, fishing, boating, swimming and any other recreational purpose for which Lake Michigan ordinarily is used.

The law enacted by the Republican-controlled General Assembly also specified Lake Michigan-adjacent private property owners are not entitled to exclusive use of the beach or the water.

Wood said that even if the Porter plaintiffs owned the entire shoreline near their homes, the individuals they sued, including the governor, attorney general and the directors of the Department of Natural Resources and State Land Office, have no authority to convey title to land the Indiana Supreme Court and the General Assembly say belongs to the state.

Moreover, she observed a federal appeals court lacks the authority to overrule a state supreme court.

"It is state property law itself, rather than any action by the state parties, that is adverse to the owners' claims," Wood said. "We would be unable to hold that their property was taken without also holding that Gunderson was wrongly decided."

"In effect, their theory of the case would have us sit in appellate review of the Indiana Supreme Court’s decision about state property law — a role that would sit uneasily next to the (U.S.) Supreme Court’s exclusive statutory authority to review the decisions of state courts in civil cases."

Records show the Long Beach Lakefront Homeowners Association appealed the Gunderson ruling directly to the U.S. Supreme Court in October 2018.

The nation's high court turned away the case without comment in February 2019, seemingly content to leave the Indiana Supreme Court ruling as the final word on Lake Michigan beach ownership.

Chris Kieser, an attorney with the Pacific Legal Foundation, the California-based property rights law firm representing the plaintiffs, did not say whether they plan to ask the U.S. Supreme Court to review the 7th Circuit decision.

"We are disappointed in the outcome and we are considering our next steps with our clients," Kieser said.

Indiana Attorney General Todd Rokita, a Munster native, did not immediately respond to a request for comment on the ruling.

Last year, when U.S. District Court Chief Judge Jon DeGuilio initially rejected the beach ownership claims of the Porter plaintiffs, Rokita said: "The court's decision affirms what we always knew to be true — that the shoreline of Lake Michigan belongs to every Hoosier for their use and enjoyment."