November 11, 2021

Federal court considering dispute over Lake Michigan access

The Indiana Court of Appeals defined the boundary between private and public property along Lake Michigan at the Ordinary High Water Mark. - IPBS-RJC

The Indiana Court of Appeals defined the boundary between private and public property along Lake Michigan at the Ordinary High Water Mark.


CHICAGO (AP) — A federal appeals court appeared unlikely to disturb a 2018 Indiana Supreme Court ruling that held that the shoreline of Lake Michigan is, and always has been, owned by the state for the public's use.

Judges on the 7th Circuit Court of Appeals in Chicago seemed unpersuaded during oral arguments Wednesday on behalf of three lakefront property owners in the town of Porter who are looking to limit public access to beaches, The (Northwest Indiana) Times reported.

Attorney Chris Kieser argued that land deeds and tax records held by his clients show they own the beach in front of their homes to the water’s edge, making them entitled to keep the public from accessing that portion of the shoreline near the Indiana Dunes National Park.

That claim conflicts with an Indiana Supreme Court ruling in 2018 that Indiana owns — and has since becoming a state in 1816 — both the land under Lake Michigan and the adjacent shoreline up to the ordinary high-water mark. The U.S. Supreme Court declined in 2019 to consider overturning that decision.

A federal judge in March ruled against the property owners’ lawsuit, and Appeals Court Judge Diane Wood questioned whether the federal courts should intervene.

“The state courts have addressed precisely the issue that you’re talking about, and you just don’t like the answer they gave as far as I can tell,” Wood said.

Kieser argued that by “changing” the property line, the state Supreme Court took his clients’ property without compensation and an injunction is needed to restore their deeds.

Kieser asked for a court order barring Indiana from enforcing the state court decision on his clients, which would have the effect of restoring their private beach on Lake Michigan.

Appeals Court Judge Michael Scudder raised doubts on the case by pointing out that the state officials named in the lawsuit lack the authority to transfer title to the properties to Kieser’s clients.

Deputy Indiana Attorney General Benjamin Jones said the state court ruling established that the property owners never owned the Lake Michigan shoreline in the first place.

“They needed to have clearly established title to this land to show a judicial taking if it’s a real thing,” Jones said. “And they don’t have that.”

The Indiana Legislature approved a 2020 law stemming from the state Supreme Court decision, confirming the public's right to use the Lake Michigan shoreline for walking, fishing, boating, swimming and other recreational purposes.

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