Gunderson v. State

• Decision Date: 14 February 2018
• Docket Number: No. 46S03–1706–PL–423,46S03–1706–PL–423
• Citation: 90 N.E.3d 1171
• Parties: Don H. GUNDERSON and Bobbie J. Gunderson, Co–Trustees of the Don H. Gunderson Living Trust, Appellants/Cross–Appellees (Plaintiffs below), v. STATE of Indiana, INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellees (Defendants below), Alliance for the Great Lakes and Save the Dunes, Appellees/Cross–Appellants (Intervenors–Defendants below), Long Beach Community Alliance, Patrick Cannon, John Wall, Doria Lemay, Michael Salmon, and Thomas King, Appellees/Cross–Appellants (Intervenors–Defendants below).
• Court: Indiana Supreme Court

90 N.E.3d 1171

Don H. GUNDERSON and Bobbie J. Gunderson, Co–Trustees of the Don H. Gunderson Living Trust, Appellants/Cross–Appellees (Plaintiffs below),

v.STATE of Indiana, INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellees (Defendants below),

Alliance for the Great Lakes and Save the Dunes, Appellees/Cross–Appellants (Intervenors–Defendants below),

Long Beach Community Alliance, Patrick Cannon, John Wall, Doria Lemay, Michael Salmon, and Thomas King, Appellees/Cross–Appellants (Intervenors–Defendants below).

No. 46S03–1706–PL–423

Supreme Court of Indiana.

FILED February 14, 2018

Attorneys for Appellants/Cross–Appellees : Michael V. Knight, Barnes & Thornburg LLP, South Bend, Indiana, Peter J. Rusthoven, John R. Maley, Leah L. Seigel, Barnes & Thornburg LLP, Indianapolis, Indiana, Mark L. Phillips, Newby, Lewis, Kaminski & Jones, LLP, LaPorte, Indiana

Attorneys for Amicus Curiae Ray Cahnman and Pacific Legal Foundation : Mark Miller, Pacific Legal Foundation, Palm Beach Gardens, Florida, Paul Edgar Harold, Stephen M. Judge, LaDue Curran & Kuehn, LLC, South Bend, Indiana

Attorneys for Appellees : Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrea E. Rahman, Deputy Attorney General, Indianapolis, Indiana

Attorney for Appellees/Cross–Appellants Alliance for the Great Lakes and Save the Dunes : Jeffrey B. Hyman, Conservation Law Center, Bloomington, Indiana

Attorneys for Appellees/Cross–Appellants Long Beach Community Alliance, et al. : Kurt R. Earnst, Braje, Nelson & Janes, LLP, Michigan City, Indiana, Patricia F. Sharkey, Environmental Law Counsel, PC, Chicago, Illinois

On Petition to Transfer from the Indiana Court of Appeals, No. 46A03–1508–PL–1116

Massa, Justice.

A century ago, our Court of Appeals recognized that, among those rights acquired upon admission to the Union, the State owns and holds "in trust" the lands under navigable waters within its borders, "including the shores or space between ordinary high and low water marks, for the benefit of the people of the state ." Lake Sand Co. v. State , 68 Ind. App. 439, 445, 120 N.E. 714, 716 (1918) (quoting Ex parte Powell , 70 Fla. 363, 372, 70 So. 392, 395 (1915) ). And Indiana "in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan." Id. at 446, 120 N.E. at 716. This Court has since affirmed these principles. See State ex rel. Indiana Department of Conservation v. Kivett , 228 Ind. 623, 630, 95 N.E.2d 145, 148 (1950). But the question remains: What is the precise boundary at which the State's ownership interest ends and private property interests begin?

Today, we hold that the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary. We therefore affirm the trial court's ruling that the State holds title to the Lake Michigan shores in trust for the public but reverse the court's decision that private property interests here overlap with those of the State.

Facts and Procedural History

Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H. Gunderson Living Trust ("the Gundersons"), own lakefront property in Long Beach, Indiana, consisting of three lots in Section 15 of Michigan Township (the "Disputed Property"). The Gundersons' deed, the 1914 plat to which the deed refers, and the plat survey contain no reference to a boundary separating the Disputed Property from Lake Michigan to the north. A designated survey of Long Beach from 1984 contains a plat map showing the Disputed Property and contiguous lakefront lots extending to the "Lake Edge." App. 127–43. At the root of the Gundersons' deed is an 1837 federal land patent. This patent, in turn, originates from an 1829 federal survey showing Lake Michigan as the northern boundary of Section 15. The original survey notes indicate the northern boundary extends "to Lake Michigan and set post." App. 589.

In 2010, the Town of Long Beach passed an ordinance adopting the Indiana Department of Natural Resources' ("DNR") administrative boundary which separates state-owned beaches from private, upland portions of the shore. Long Beach, Ind., Code of Ordinances § 34.30 (amended 2012); 312 Ind. Admin. Code 1–1–26(2) (2017). The Gundersons, along with other lakefront property owners in Long Beach, protested that the artificial boundary line infringed on their property rights.¹

Following unsuccessful attempts at changing the rule at the administrative level, the Gundersons, in 2014, sued the State and the DNR (collectively, "the State") for a declaratory judgment on the extent of their littoral rights to the shore of Lake Michigan and to quiet title to the Disputed Property.² Alliance for the Great Lakes and Save the Dunes ("Alliance–Dunes") and Long Beach Community Alliance ("LBCA") (collectively, "Intervenors") successfully moved to intervene. All parties filed cross-motions for summary judgment. The Gundersons asked the trial court to rule that "there is no public trust right in any land abutting Lake Michigan." App. 83. The State, in turn, requested the trial court to declare that Indiana owns the disputed beach in trust for public use. Intervenors urged the trial court to find that the State owns the disputed shore of Lake Michigan below the ordinary high water mark ("OHWM") in trust for public recreational use.

In granting the State and Intervenors' cross-motions for summary judgment, the trial court ruled "that when Indiana became a State, it received, and held in trust for the public, all lands below the OHWM regardless of whether the land is temporarily not covered by the water." App. 25. The court further concluded that the Gundersons' property extends to the northern boundary of Section 15 while the State holds legal title, in public trust, to the land below the OHWM as defined by the DNR's administrative boundary. To the extent that these property interests overlap, the trial court declared that "the Gundersons cannot unduly impair the protected rights and uses of the public." App. 28. Finally, the trial court concluded that "Indiana's public trust protects the public's right to use the beach below the [OHWM] for commerce, navigation, fishing, recreation, and all other activities related thereto, including but not limited to boating, swimming, sunbathing, and other beach sport activities." App. 31.

The Gundersons appealed while Intervenors moved to correct the trial court's findings on the administrative OHWM and the overlapping titles. Alliance–Dunes moved for judicial notice of additional facts and to supplement the record, to which the State and the Gundersons objected. The court denied all pending motions and Alliance–Dunes and LBCA separately appealed.

The Court of Appeals affirmed in part and reversed in part. In a unanimous opinion, the panel held (1) that, absent an express legislative abrogation of public trust rights in the shores of Lake Michigan, those rights are controlled by the common-law public trust doctrine; (2) that the DNR's administrative boundary is invalid and the OHWM remains that defined by the common law; and (3) that the northern boundary of the Gundersons' property extends to the ordinary low water mark, subject to public use rights up to the OHWM, such as walking along the beach and gaining access to the public waterway. Gunderson v. State , 67 N.E.3d 1050, 1060 (Ind. Ct. App. 2016).

All parties—the Gundersons, the State, and Intervenors—petitioned this Court for transfer, which we granted, thus vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

We review summary judgment applying the same standard as the trial court: "summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C) ). On cross-motions for summary judgment, "we simply consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law." In re Indiana State Fair Litig. , 49 N.E.3d 545, 548 (Ind. 2016) (citation omitted). We limit our review to the materials designated at the trial level. Fraternal Order of Police, Lodge No. 73 v. City of Evansville , 829 N.E.2d 494, 496 (Ind. 2005).

Where the challenge to summary judgment raises pure questions of law, we review them de novo. Ballard v. Lewis , 8 N.E.3d 190, 193 (Ind. 2014).

Discussion and Decision

The basic controversy here is whether the State holds exclusive title to the exposed shore of Lake Michigan up to the OHWM, or whether the Gundersons, as riparian property owners, hold title to the water's edge, thus excluding public use of the beach.³ All parties agree that land below Lake Michigan's OHWM is held in trust for public use. The legal dispute relates to the precise location of that OHWM: whereas the Gundersons argue that it lies wherever the water meets the land at any given moment, the State and Intervenors locate the boundary further landward to include the exposed shore.

Resolution of this case entails a two-part analysis: First, we must determine the boundary of the bed of Lake Michigan that originally passed to Indiana at statehood in 1816. Second, we must decide whether the State has since relinquished title to land within that boundary. The former question is a matter of federal law; the latter inquiry, a matter of state law. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co. , 429 U.S. 363, 376–77, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977) ("[D]etermination of the initial boundary between [the beds of navigable waters] acquired under the equal-footing doctrine, and riparian fast lands [is] a matter of federal law ... [whereas] subsequent changes in...