PORTER — Three lakefront property owners in the town of Porter are renewing the fight over public access to Lake Michigan beaches.
They filed a lawsuit Thursday at the federal district court in Hammond seeking to undo the Indiana Supreme Court's landmark 2018 Gunderson v. State ruling that held Indiana owns, and always has, the shoreline of Lake Michigan 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, according to the state's high court.
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, and the Indiana General Assembly can guarantee additional recreational uses for the beach.
People are also reading…
The Porter plaintiffs argue that decision unlawfully took away their private beaches on Lake Michigan, without compensation, and they want the federal court to bar Indiana from enforcing the ruling so they once again can control who uses the beach near their homes.
Their claim is based on property deeds showing ownership extending beyond the lake's ordinary high water mark and historical records of lakefront land sales that contained property now recognized as state-owned, including land purchased for what now is Indiana Dunes National Park.
"The Gunderson decision was an abrupt change in state law that unsettled plaintiffs' property rights. The Indiana Supreme Court ignored not only its own precedent, but Indiana's history," they write.
The lawsuit was filed by the Pacific Legal Foundation, a nonprofit property rights organization, on behalf of Randall and Kimberley Pavlock, owners of Hunter Properties, a Chicago property management and brokerage company; and Raymond Cahnman, chairman of the TransMarket Group trading firm and a former director of the Chicago Board of Trade.
Records show the Pavlocks and Cahnman own properties on Duneland Drive in Porter just west of the beach parking lot at Indiana Dunes State Park.
Some of the arguments in their federal lawsuit previously were included in a "friend of the court" brief, submitted by the Pacific Legal Foundation and Cahnman, while the Indiana Supreme Court was weighing its Gunderson decision.
In that ruling, Justice Mark Massa traced the history of littoral and riparian land rights from ancient English common law, through the U.S. Constitution and into the Indiana Code to determine 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.
The U.S. Supreme Court in February declined to consider an appeal of the Gunderson ruling, filed by lakefront property owners in Long Beach, leaving it as the final word on Lake Michigan property rights and public beach access in Indiana — until now.
The office of Indiana Attorney General Curtis Hill Jr. said it is reviewing the Porter lawsuit and pledged to "vigorously defend the interests of the state of Indiana."
Hill, a Republican, is named as a defendant in the lawsuit in his official capacity as Indiana's chief legal officer, along with Republican Gov. Eric Holcomb, Department of Natural Resources Director Cameron Clark, and Tom Laycock, acting director of the State Land Office.
State Sen. Karen Tallian, D-Ogden Dunes, a candidate for Indiana attorney general, said she expects the state will file a motion to dismiss and that should end the case, since it's a state law issue and Indiana's highest court already has ruled.
"This property was not taken from them because they never owned it," Tallian said. "I can write up a deed and sell you the Brooklyn Bridge — doesn't mean I own it."
The state's response to the lawsuit is due early next year.