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

• Date: 01 May 2018

48 ELR 10394 ENVIRONMENTAL LAW REPORTER 5-2018

A R T I C L E S

Gunderson v.

State: The Indiana

Supreme Court

Strengthens the

Public Trust

Doctrine’s

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.

Summary

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®, http://www.eli.org, 1-800-433-5120.