The following guest post is by Jeffrey B. Hyman, Senior Staff Attorney with the Conservation Law Center in Bloomington, Indiana. Jeff is counsel for respondent/intervenors Alliance for the Great Lakes and Save the Dunes in the Gunderson v. State of Indiana litigation.
Early this year the Indiana Supreme Court delivered a landmark public trust and equal footing decision in Gunderson v. State of Indiana. The Indiana Supreme Court ruled that at statehood, under these doctrines, Indiana acquired the bed of Lake Michigan within Indiana’s borders below the common-law “natural” ordinary high water mark (OHWM), including temporarily exposed shores. The Indiana Supreme Court also ruled that the state never conveyed the disputed shore to any private owner, including the Gundersons, and that the state continues to hold the shore in an inalienable trust for traditional public uses such as fishing and walking. With regard to ownership of the lakeshore, this is a unique decision for the Great Lakes region, where most states have relinquished their shores to private ownership.
The Indiana Supreme Court defined the natural OHWM based on the traditional concept used for non-tidal navigable waterbodies: the point on the shore where soil, vegetation, or other physical marks change from those characteristic of a water-influenced environment to those characteristic of terrestrial uplands.
The Gundersons had initiated their lawsuit in the trial court with the claim that under their private deed and plat, they held exclusive title to the disputed lakeshore down to the instant edge of the water where it laps at the shore at any given moment. The Gundersons were undoubtedly encouraged by recent public trust cases in Michigan and Ohio. In 2005, a majority of the Michigan Supreme Court held in Glass v. Goeckel that the public has the right to walk along the exposed shore below the traditional OHWM, even if the shore is privately owned to the low water mark. Even though this majority holding was not favorable for the Gundersons, the long and biting dissent in Glass argued that the boundary of public rights should instead be the instant water’s edge. In Ohio’s 2011 public trust case of State ex rel. Merrill, the Ohio Supreme Court came to a conclusion different from both the majority and the dissent in Glass, ruling that the boundary of state title and public rights on Lake Erie shores extends to the “line at which the water usually stands when free from disturbing causes.” Although the Merrill court did not explain this line in terms of physical marks, the court said that this line is not the traditional OHWM. But, said the Ohio court, neither is it the instant water’s edge. (For more on the Merrill decision, see Professor Ken Kilbert’s prior guest post.)
The defendant state and the two sets of intervenors argued that the case was governed not by the Gundersons’ private deed and plat but rather by the federal public trust and equal footing doctrines. According to these doctrines, upon winning the Revolutionary War, each of the original 13 states acquired title (previously held by the sovereign in England) to the beds of its navigable water bodies, up to the high-water mark, to hold in trust for its citizens. To ensure that each new state subsequently carved out of the territories is admitted to the Union on an “equal footing” with the original states, the equal footing doctrine constitutionally mandates that each new state automatically receive at statehood the same right of title to the beds of its navigable waterbodies as that held by the original states.
The Indiana trial court, intermediate appellate court, and high court all agreed that these doctrines governed the dispute, but with significant twists. The trial court ruled that the state acquired the shore under the equal footing doctrine, owns it up to an administrative water-elevation line advocated by the Indiana DNR, and holds it for general public recreational uses. (See this prior post on the trial court decision by Kyle Peczynski.) The intermediate Court of Appeals ruled that the state acquired the shore to the natural OHWM, but now the Gundersons own legal title down to the low water mark, subject to public rights of use. The Indiana Supreme Court, unraveling the tangle, ruled that the state acquired exclusive title to the shore below the traditional natural OHWM and still owns it to that boundary, but that public rights on the shore are limited in scope.
In October 2018, the Gundersons filed a petition for certiorari in the United States Supreme Court. The petition was originally due in August, but the Gundersons asked for and were granted a 59-day extension of time (possibly waiting for Justice Kavanaugh to be seated). The Gundersons contend in their petition that the Indiana high court got it wrong by ruling that at statehood Indiana received the shore below the traditionally defined natural OHWM. The Gundersons argue that although the traditional definition of OHWM may be fine for river boundaries, for the boundary of equal footing land on Great Lakes sandy shores the Court should adopt a special definition of OHWM – namely, the instant water’s edge where it laps at the shore at any moment. Briefs in opposition to certiorari are due in early November.