The federal appeals court in Chicago appears unlikely to disturb a 2018 Indiana Supreme Court ruling that held the shoreline of Lake Michigan is, and always has been, owned by the state for the enjoyment of all Hoosiers.
During oral arguments Wednesday at the 7th U.S. Circuit Court of Appeals, the three-judge panel seemed unpersuaded by the claims attorney Chris Kieser made on behalf of Raymond Cahnman, Randall Pavlock, and Kimberley Pavlock, who own lake-adjacent property in the town of Porter.
Kieser insisted land deeds and tax records held by his clients show they own the beach in front of their homes to the water’s edge, and therefore are entitled to keep the general public from accessing or using that portion of the shoreline.
That claim conflicts with the Indiana Supreme Court’s Gunderson v. State decision that found, following extensive review of the history of waterside property rights, Indiana owns — and has since becoming a state in 1816 — both the land under Lake Michigan and the adjacent shoreline up to the ordinary high-water mark.
The 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 last year was codified in 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.
As a preliminary matter, Appeals Judge Diane Wood noted there generally is no basis for litigants to seek federal judicial review of a state supreme court ruling, except by direct appeal to the U.S. Supreme Court — which declined in 2019 to intervene in the Gunderson case.
“The state courts have addressed precisely the issue that you’re talking about, and you just don’t like the answer they gave as far as I can tell,” Wood said.
In response, Kieser said Gunderson was not necessarily incorrectly decided by the Indiana Supreme Court. But he said by “changing” the property line, the court took his clients’ property without compensation and an injunction is needed to restore their deeds pre-Gunderson.
“Did they change it? Or did they simply settle it for the first time?” Wood asked. "By why act did Indiana dispose of this band of land between the ordinary high-water mark and the low-water mark? Can you point to an act of abandonment, or of sale, or of something?”
Appeals Judge Michael Scudder then noted that even if the appeals court agreed with Kieser’s arguments, the defendants in the case — the governor, the attorney general, and two Department of Natural Resources officials — lack the authority to transfer title to the properties to Kieser’s clients.
Kieser said he’s seeking a court order barring the state from enforcing the Gunderson ruling on his clients, which would have the effect of restoring the private beach on Lake Michigan that Kieser said his clients enjoyed prior to Gunderson.
But Scudder observed non-enforcement doesn’t resolve the property ownership issues, and any attempted sale of the property that claims ownership to the water’s edge would be problematic because the Gunderson decision exists.
“In a conflict between the deed and Gunderson, doesn’t Gunderson win that?” Scudder asked.
Deputy Indiana Attorney General Benjamin Jones urged the appellate panel to affirm the March 31 decision by U.S. District Court Chief Judge Jon DeGuilio dismissing the plaintiff’s takings claim because it’s not subject to federal court review due to the sovereign immunity provided to states by the U.S. Constitution's 11th Amendment.
Moreover, even if there was a legitimate federal issue, Jones said the plaintiffs still should lose because Gunderson did not take their land without compensation; they never owned the Lake Michigan shoreline in the first place.
“They needed to have clearly established title to this land to show a judicial taking if it’s a real thing,” Jones said. “And they don’t have that.
“Expectations and behavior are one thing, but those aren’t clearly established title.”
That prompted Scudder and Wood to once again acknowledge that even if there was established title there’s nothing the state defendants can do to remedy the alleged taking because they can’t restore the property title that supposedly was lost due to Gunderson.
“And this is where it gets circular,” Scudder said. “What could they possibly do?”
A ruling by the federal appellate court is expected in coming months.