Lawyer: State Not Enforcing Lake Michigan Public Access Opinion

An attorney who is part of the legal team that won an Indiana Supreme Court decision preserving public access to the shores of Lake Michigan says state agencies are refusing to enforce the court’s order while private property owners on the lakefront seek a possible appeal to the U.S. Supreme Court.

The Indiana Supreme Court ruled in February that the state’s public trust rights to the Lake Michigan shore extend to the ordinary high-water mark, permitting any individual to walk on the shore above the water’s edge. Plaintiffs Don and Bobbie Gunderson unsuccessfully argued their property deeds in Long Beach entitled them to ownership of the entire beach, up to wherever the water is at any given time, effectively restricting public access to the shore above the water.

But attorney Patricia Sharkey, who represented Long Beach Community Alliance in the suit, said in an email to Indiana Lawyer that the Indiana Department of Natural Resources and the Indiana Attorney General’s Office are refusing to enforce the order.

“DNR is creating a ‘no man’s land’ problem that shouldn’t exist and which lakefront owners have used to excuse hiring a private security guard to kick people off the beach and to scurry to try to build revetments down into the water and recklessly level dunes and plow sand from public trust property into the lake,” Sharkey wrote. “This despite the fact that no stay of the (Indiana Supreme Court) decision was sought or granted.”

Spokespeople for the DNR and the AG’s office did not respond to emails seeking a response Friday.

Attorneys for the Gundersons earlier this month were granted an extension until early October to file a petition for writ of certiorari to the U.S. Supreme Court. Sharkey said she doesn’t believe the high court will take the case, citing an Indiana decision she said “follows well-established law and is well written and reasoned.”

In the interim, though, she described a situation in which some lakefront landowners appear to be acting to effectively privatize the public shore between their lake and their land.

“Most people in Long Beach are shocked that the Indiana Supreme Court decision is being ignored by DNR and exasperated with what they see as both DNR’s and lakefront owners’ willful misconstruction of the decision,” Sharkey wrote. “It is like the wild west out here with lakefront owners just ignoring the law.” She said representatives of the DNR and the AG’s office have declined repeated requests to meet with the Long Beach Community Alliance about enforcement of the court’s opinion.

“Fortunately, the Town of Long Beach understands the Indiana Supreme Court decision and Long Beach police are refusing to kick people off the beach and have told lakefront owners they have no right to do so. But I am being contacted about a new beach ‘crisis’ almost every day,” Sharkey said.

Read more about the Lake Michigan public access case in the Sept. 5 edition of Indiana Lawyer.