The Indiana Supreme Court has made a landmark decision and provided further guidance on where the State’s ownership and public use rights end along the water’s edge of Lake Michigan in its Gunderson v. State of Indiana decision issued February 14, 2018. The full decision can be found at: http://www.in.gov/judiciary/opinions/pdf/02141801mm.pdf
The decision invalidates the Indiana Department of Natural Resources (“DNR”) administrative boundary, which was set at a specific elevation and asserted by the State and DNR to provide a bright line notice to all as to where private ownership ends, and public use begins. The Court noted that such a definition is different than the common law natural Ordinary High Water Mark (“OHWM”) and does not take into account shoreline dynamics. In 2010, by Ordinance, the Town of Long Beach, Indiana adopted the DNR’s administrative boundary. Unsuccessful attempts by the Gunderson’s to address the DNR’s definition through administrative proceedings prompted them to sue the State and the DNR.
The Court’s decision found that absent an express legislative conveyance or federal grant of a shoreline area to another owner prior to Indiana becoming a State in 1816, the State public trust rights extend all the way to the natural OHWM. This includes the periodically exposed shore area when the water level of the Lake Drops or there is erosion or deposit of sediment that alters the shoreline area. The Court also held that the definition of the OHWM remains as defined under common law to account for the fact that the shoreline is ever changing and not static as the DNR’s administrative rule attempted to establish.
Additionally, the Court found no authority for the DNR to enact any administrative rule setting a different OHWM under its general managerial responsibility delegated to it by the State over navigable waters in Indiana as there is a lack of “sufficient standards to guide the [DNR].”
