Gunderson v. State: The Indiana Supreme Court Strengthens the Public Trust Doctrine's Potential for Conservation in the Great Lakes

Date01 May 2018
Gunderson v.
State: The Indiana
Supreme Court
Strengthens the
Public Trust
Potential for
Conservation in
the Great Lakes
by Jerey B. Hyman
Jerey B. Hyman is Sta Attorney at the Conservation Law
Center in Bloomington, Indiana, and Adjunct Professor
of Law at Indiana University Maurer School of Law.
e Indiana Supreme Court recently delivered a land-
mark public trust decision, Gunderson v. State, ruling
that the state acquired and still owns Indiana’s bed of
Lake Michigan below the ordinary high water mark,
including exposed shores, and that it holds that bed in
an inalienable trust for public uses. is is a unique
decision for the Great Lakes region. is Article exam-
ines the legal background for the case, the conicts
and contradictory rulings that emerged as it travelled
upward through the court system, and the ultimate
resolution by Indiana’s high court. e Article also
places the decision in the larger context of environ-
mental conservation and public trust advocacy.
In April 2014, Don and Bobbie Gunderson, who owned
a house abutting the shore of Lake Michigan at Long
Beach, Indiana, initiated a declaratory judgment action
against the state of Indiana, claiming exclusive title to the
exposed sandy beach bet ween their house and the water.
e Gundersons argued that the boundary of their private
property was the instant water’s edge of the lake—where
the edge of the water stands at any given moment. e con-
servation groups Alliance for the Great Lakes and Save the
Dunes, as well as an association of Long Beach homeown-
ers, quickly intervened on the side of the state. e state
and intervenors countered that under t he equal footing
and public trust doctrines, at statehood Indiana acquired
title to the disputed beach to hold in trust for public uses,
and the state still owns the beach.
Until Gunderson v. State,1 India na’s courts had not yet
decided the very basic questions raised by the lawsuit: who
owns t he shores2 of Indiana’s portion of La ke Michigan3
when the shore is not covered by water; whether the public
has any right to use those shores; and, if so, for what pur-
poses. at these were still questions of rst impression in
2014 may seem surprising, especially in West Coast states
with substantial public trust precedent. After all, the lega l
doctrines relevant to deciding these basic questions have
been articulated by the U.S. Supreme Court since the 19th
century. Moreover, Indiana courts recognized these doc-
trines more than 50 years ago.
is Valentine’s Day, the Indiana Supreme Court (with
four sitting justices and one recusal) delivered a landmark
and unanimous decision in Gunderson, ruling that the
state owns Indiana’s bed of Lake Michigan below the com-
mon-law “natural” ordinary high water mark (OHWM),
including exposed shores, and that the state specically
holds the shores in an inalienable trust for, at minimum,
public uses such as walking and shing. is decision is
unique in t he Great Lakes region, where most states have
relinquished their shores to private ownership.
is Article describes the litigation in Gunderson, exam-
ines the key issues and rulings of the courts involved, and
considers the importance of t he ca se for the Great La kes
region and the nation. Part I examines the legal back-
ground for the ca se. Part II looks at the missteps of the
trial court and intermediate appellate court in applying the
1. 90 N.E.3d 1171 (Ind. 2018).
2. e “shore,” as that term was used in Gunderson, is the space between the
ordinary high and ordinary low water marks.
3. e northern border of the state of Indiana is “ten miles north of the south-
ern extreme of Lake Michigan.” I. C. art. 14, §1. e location of
this border was not at issue in Gunderson.
       
Gunderson v. State litigation.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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