In West v. Town of Long Beach, an Indiana trial court held that a local government resolution describing the ordinary high water mark and its property implications for Lake Michigan shoreline owners did not constitute a taking.
Long Beach Resolution 12-003 was passed in response to the Indiana Department of Natural Resources’ 2012 statement that stated, “The ordinary high water mark is the line on Lake Michigan and other navigable waterways used to designate where regulatory jurisdiction lies and in certain instances to determine where public use and ownership begins and/or ends.” Resolution 12-003 accepted this position and further stated that “the Long Beach Police Department shall only enforce private property ordinances between Lake Shore Drive and Lake Michigan in the following locations: A. The entire length and width of all publicly owned beach accesses above the elevation of 581.5 feet. B. The entire length and width of all lots owned by the Town of Long Beach, Indiana, above the elevation of 581.5 feet.”
Plaintiffs West and Gunderson have ownership rights on lots abutting Lake Michigan and challenged the Resolution as a taking. The trial court rejected their claim, holding that the Resolution at issue was not adverse to any property right and is “merely a statement of policy and does not speak to ownership of the land under discussion.” The trial court then briefly outlined major Indiana public trust doctrine cases; specifically U.S. v. Carstens, Nos. 3111101, 3111102, 3111103 (U.S. Dist. Ct., N.D. Indiana, Nov. 20, 2013), which held that “the land between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by the State of Indiana.” Declining to address the question of ownership, the court concluded that any further issues on this matter would best be handled by the Indiana legislature or an appellate court matter in which the State is a party.
The decision puts Indiana in the majority of Great Lakes states, including Michigan, that recognize the public trust in the Great Lakes shorelines up to the ordinary high water mark. Notably, Ohio’s Supreme Court recently went in a very different direction, ruling that the “natural shoreline,” which it defined as the line at which water usually stands when free from disturbing causes, represents the boundary between privately owned uplands and the state-owned lakebed, with no public rights above the line.
Thanks to Kyle M. Peczynski (B.A., University of Michigan; J.D., Wayne State University Law School, expected 2014) for this student post.