                                                                     Mar 26 2015, 10:09 am




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE:
Michael V. Knight                                         TOWN OF LONG BEACH
Barnes & Thornburg LLP                                    L. Charles Lukmann, III
South Bend, Indiana                                       Charles F.G. Parkinson
ATTORNEY FOR AMICUS CURIAE: SAVE                          Harris Welsh & Lukmann
                                                          Chesterton, Indiana
OUR SHORELINE
                                                          ATTORNEY FOR APPELLEES:
Keith A. Schofner                                         ALLIANCE FOR THE GREAT LAKES
Lambert Leser                                             AND SAVE THE DUNES
Bay City, Michigan                                        Jeffrey B. Hyman
ATTORNEYS FOR AMICUS CURIAE:                              Conservation Law Center
                                                          Bloomington, Indiana
PACIFIC LEGAL FOUNDATION
Paul Edgar Harold                                         ATTORNEY FOR APPELLEE: LONG
LaDue Curran & Kuehn LLC                                  BEACH COMMUNITY ALLIANCE
South Bend, Indiana                                       Kurt R. Earnst
                                                          Braje, Nelson & Janes, LLP
Mark Miller                                               Michigan City, Indiana
Pacific Legal Foundation
Palm Beach Gardens, Florida




                                            IN THE
    COURT OF APPEALS OF INDIANA

LBLHA, LLC, Margaret L.                                   March 26, 2015
West, and Don H. Gunderson,                               Court of Appeals Case No. 46A05-
                                                          1404-PL-146
Appellants-Plaintiffs,
                                                          Appeal from the LaPorte Circuit
        v.                                                Court

                                                          The Honorable Thomas J. Alevizos,
Town of Long Beach, Indiana,                              Judge
Alliance for the Great Lakes and
                                                          Cause No. 46C01-1212-PL-1941


Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                     Page 1 of 30
      Save the Dunes, Long Beach
      Community Alliance, Patrick
      Cannon, Roger Gansauer, David
      Oei, Bernard Rabinowitz, and
      Joan Smith,
      Appellees-Defendant and Intervenor

      Defendants.




      Brown, Judge.

[1]   LBLHA, LLC, Margaret L. West, and Don H. Gunderson (collectively, the

      “Lakefront Owners”) appeal orders of the trial court dismissing all counts of

      their complaint against the Town of Long Beach, Indiana (the “Town”) and

      other intervenor defendants, raising several issues. We find dispositive at this

      stage in the proceedings whether the State of Indiana or appropriate State

      officials as individuals in their official capacity should have been added or

      joined as a party or parties to the proceedings prior to the rulings on the

      Lakefront Owners’ claims. We reverse and remand.


                                       Facts and Procedural History

[2]   As of April 27, 2011, a webpage of the Indiana Department of Natural

      Resources (the “IDNR”) stated that “[t]he dividing line on Lake Michigan and

      other navigable waterways between public and private ownership is the

      ordinary high watermark [“OHW”)].” Appellants’ Appendix at 45. The

      webpage included two case examples, the first of which stated that “[w]hen


      Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 2 of 30
      Lake Michigan’s water level is ‘above’ the [OHW] the State ‘does not’ own part

      of the dry beach,” and the second of which stated that, “[w]hen Lake

      Michigan’s water level is ‘below’ the [OHW] the State ‘does’ own part of the

      dry beach.” Id. at 46. The second case example showed a diagram specifying

      the location of the OHW and the actual lake level and indicating “Private” for

      the area above the OHW and “State Ownership” for the area from the OHW to

      the actual lake level. Id.


[3]   The National Resources Commission (“NRC”) conducted a meeting on

      November 15, 2011. According to the meeting minutes, IDNR’s chief legal

      counsel presented information with respect to the shoreline along Lake

      Michigan. The meeting minutes state:

              [Counsel for IDNR] said there has not been a legal determination of
              what is the upper limit of the bed of Lake Michigan. In 1995, the
              Lakes Preservation Act established an elevation of 581.5 feet as the
              ordinary high water mark for Lake Michigan. “Where that falls on the
              beaches up there changes from season to season as the sand erodes and
              is put back.” The State of Indiana has historically claimed ownership
              of what is below the ordinary high water mark; however, research has
              not produced evidence to support that claim. “All that is out there
              states that the beds of the navigable waters belong to the states, so
              what is the bed? Is it just what’s under water or is it a distance beyond
              the water’s edge? There is no legal guidance with regard to what we
              would actually own or hold in trust for the public, which is sort of
              issue number two here, is what are we, the State, holding in trust for
              the public use?”


      Id. at 295. Counsel for IDNR explained that the Town has an extensive beach

      area that did not exist twenty years ago and asked “[d]o we focus on ownership


      Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015       Page 3 of 30
or do we focus on what the State holds in trust for the public use.” Id. at 296.

Counsel for IDNR stated “this is an important issue that has yet to be settled,”

that “[t]he ownership issue has been litigated extensively in the surrounding

states,” that “[t]he Ohio Supreme Court issued an opinion favoring the private

property owners, as did the States of Michigan, Illinois, and Wisconsin,” and

that “[a]s you can imagine there are a lot of people used to using those beaches

that don’t live there. It will impact their use of the beach.” Id. Counsel for

Long Beach property owners provided an information binder to members of the

NRC which he indicated consisted of plat information and copies of source

documents, and noted that the language on the IDNR’s website contained the

claim of ownership by the State of Indiana below the OHW, that the property

owners desired for that language to be removed, and that the deeds for his

clients “go down to the low water mark.” Id. at 297. Counsel for Long Beach

property owners also stated that “Michigan’s public right says for its citizens

that its citizens may traverse its lake shore beneath the ordinary high water

mark,” that “Michigan limited its public rights to just traversing only, and

stopping on the beach to fish, sunbathe, or for any other activity was not

allowed,” and that “Ohio found that private property rights run down to the

water’s edge.” Id. Counsel further said that “the cases that have been decided

by neighboring State Supreme Courts have not held that the public rights

doctrine has trumped anybody’s private deed,” that a resolution passed by the

Town “states that it is no longer defending someone’s private property right

below the ordinary high water mark based on the website publication,” and that

all of the Long Beach lakefront property owners except one signed a petition.
Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 4 of 30
      Id. The matter of the information posted on IDNR’s website was taken under

      consideration.


[4]   As of October 10, 2012, the IDNR webpage provided that the OHW “is the line

      on Lake Michigan and other navigable waterways used to designate where

      regulatory jurisdiction lies and in certain instances to determine where public

      use and ownership begins and/or ends.” Id. at 48. The webpage again

      included two case examples, the first of which stated that “[w]hen Lake

      Michigan’s water level is ‘above’ the [OHW], the State does not regulate any of

      the dry beach,” and the second of which stated that, “[w]hen Lake Michigan’s

      water level is ‘below’ the [OHW], the State does regulate part of the dry beach.”

      Id. at 49. The second case example showed a diagram specifying the location of

      the OHW and the actual lake level and indicating “Private” for the area above

      the OHW and “State Regulatory Jurisdiction” for the area from the OHW to

      the actual lake level. Id.


[5]   The Town enacted, by vote of the Town Council on November 12, 2012,

      Resolution 12-003 (the “2012 Resolution”)1 which provided in part:

                 [Indents throughout original omitted] WHEREAS, the bed of Lake
                 Michigan adjacent to Long Beach, Indiana, is owned by the State of
                 Indiana; and,




      1
          Resolution 12-003 stated that it amended Resolution No. 10-002.

      Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015        Page 5 of 30
           WHEREAS, disputes have arisen relative to the location of boundary
           lines between private owners and the state of Indiana along the shores
           of Lake Michigan in Long Beach, Indiana; and,


           WHEREAS, these disputes can create issues regarding the
           enforcement by the Long Beach Police Department of PUBLIC
           PROPERTY ORDINANCES; and,


           WHEREAS, it is desirable that a clear policy be established relative to
           the enforcement of PUBLIC PROPERTY ORDINANCES on
           properties adjacent to Lake Michigan in the Town of Long Beach,
           Indiana, both for the benefit of private property owners, the general
           public and law enforcement officials; and,


           NOW THEREFORE BE IT RESOLVED, by the TOWN COUNCIL
           of the Town of Long Beach, Indiana, that the following policy be and
           is hereby adopted:


                   1. The [Town] recognizes and accepts [IDNR’s] position as
                   reflected in its publications including, but not limited to, its
                   website, the ordinary high watermark is the line on Lake
                   Michigan used to designate where the state’s regulatory
                   jurisdiction lies and, in certain instances, to determine where
                   public ownership or use begins and/or ends.


                   2. That the ordinary high watermark is an elevation of 581.5
                   feet, as adopted by the U.S. Army Corps of Engineers, and the
                   Indiana Natural Resources Commission found at 312 IAC 1-1-
                   26.[2]




2
    312 IAC 1-1-26 provides:
         “Ordinary high watermark” means the following:



Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015              Page 6 of 30
                       3. The Long Beach Police Department shall only enforce
                       PRIVATE PROPERTY ORDINANCES between Lake Shore
                       Drive and Lake Michigan in the following locations:


                                A. The entire lengthy [sic] and width of all publicly
                                owned beach accesses above the elevation of 581.5 feet.


                                B. The entire length and width of all lots owned by the
                                [Town] above the elevation of 581.5 feet.


      Id. at 69-70.


[6]   On December 10, 2012, the Lakefront Owners filed a complaint against the

      Town. The Lakefront Owners alleged that LBLHA, LLC, is an association of

      private property owners of real property abutting Lake Michigan, that West and

      Gunderson are individual property owners owning property in lots on Lake

      Shore Drive, Long Beach, Indiana, and that the Town adopted a resolution

      which has resulted in its failure to enforce private property rights on the




              (1) The line on the shore of a waterway established by the fluctuations of water and indicated
              by physical characteristics. Examples of these physical characteristics include the following:

                       (A) A clear and natural line impressed on the bank.
                       (B) Shelving.
                       (C) Changes in character of the soil.
                       (D) The destruction of terrestrial vegetation.
                       (E) The presence of litter or debris.

              (2) Notwithstanding subdivision (1), the shore of Lake Michigan at five hundred eighty-one
              and five-tenths (581.5) feet I.G.L.D., 1985 (five hundred eighty-two and two hundred fifty-
              two thousandths (582.252) feet N.G.V.D., 1929).

      Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                         Page 7 of 30
      lakefront. The Lakefront Owners, under Count I, sought declaratory relief and

      alleged that there is no public right burdening the lakefront, that the Town is

      unlawfully claiming rights on the lakefront, and that determination of the

      Town’s lakefront claims are particularly well suited for declaratory relief. The

      Lakefront Owners alleged that the Town acted under color of state law and

      deprived the Owners of their real property under Count II, that the Town’s

      assertion of ownership and public trust rights is an unconstitutional temporary

      taking of the Lakefront Owners’ property rights for which just compensation is

      due under Counts III and IV, and that the Town has violated the Home Rule

      Act found at Ind. Code § 36-1-3-8 under Count V. The Town filed an answer

      on March 4, 2013, and alleged as an affirmative defense that the Lakefront

      Owners “failed to join persons needed for just adjudication pursuant to Rule 19,

      Indiana Rules of Court, specifically the State of Indiana and/or its Department

      of Natural Resources.” Id. at 67.


[7]   On June 18, 2013, the court granted a motion to intervene as defendants filed

      by Alliance for the Great Lakes and Save the Dunes (together, “Alliance”) and

      a motion to intervene as a defendant filed by Long Beach Community Alliance.

      On June 24, 2013, Alliance filed an answer to the Lakefront Owners’ complaint

      alleging in part as an affirmative defense that “the State received absolute fee

      title to the bed of Lake Michigan up to the Ordinary High Water Mark at

      statehood to be held in trust for the public, and the State has not relinquished or

      transferred that title on the disputed Long Beach property” and that “[n]o entity




      Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 8 of 30
      except the Indiana Legislature has the power to convey those lands that

      rightfully belong to the State.” Id. at 104.


[8]   On July 23, 2013, the Lakefront Owners filed a Motion for Declaratory

      Summary Judgment and its designation of evidence and memorandum of law.

      In the motion, the Lakefront Owners requested judgment as a matter of law

      that their northern property boundary extends at least to the line at which the

      water of Lake Michigan usually stands and that the 2012 Resolution of the

      Town is unconstitutional and cannot stand as the Lakefront Owners own their

      respective property up to the water’s edge without any public right burdening

      the property. The Lakefront Owners designated a report (the “July 2013

      Report”) dated July 18, 2013, prepared by Gary Kent, a professional land

      surveyor.


[9]   The July 2013 Report noted that Kent reviewed, among other documents and

      resources, the 2012 Resolution, certain provisions of the Indiana Code and

      Indiana Administrative Code, the Ordinance of 1787 (the “Northwest

      Ordinance”), the 1842 transcript of the November 1829 field notes from the

      original government survey of Township 38 North, Range 4 West (the “1829

      Field Notes”), certain IDNR and NRC materials including NRC Bulletins #56

      and #61, the Manual of Surveying Instructions published by the U.S. Bureau of

      Land Management, Cadastral Survey, 2009 (the “2009 BLM Manual”), and

      appellate opinions in Illinois, Michigan, and Ohio. After discussing the content

      of several of the documents and sources, including portions of the Northwest

      Ordinance, the 1829 Field Notes, and the 2009 BLM Manual, the July 2013

      Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 9 of 30
       Report stated that “no existing or contemporaneous statutes or other

       documents were found that otherwise give clear definition to the boundary line

       between Lake Michigan and its upland owners.” Id. at 287. The July 2013

       Report discussed the Indiana opinion of Bainbridge v. Sherlock, 29 Ind. 364

       (1868), related to riparian owners abutting the Ohio River, and the opinions of

       other states regarding the boundary line between state ownership in the Great

       Lakes and their upland owners. The July 2013 Report concluded in part:

               Given that the location of a boundary is a function of applying
               boundary law principles to the evidence recovered in the field and in
               the records, based on the above review and analysis of the documents
               identified, . . . it is my professional opinion that the northerly
               boundary line of the lots . . . extends at least3 to “the line at which the
               water usually stands when free from disturbing causes.” From a professional
               surveyor’s perspective – being in the position of identifying such line
               on the ground and showing it on a plat of survey – it is my opinion
               that this means the edge of water when the lake in an undisturbed
               condition.


       Id. at 288 (footnote omitted).


[10]   On August 26, 2013, the Town filed a cross-motion for summary judgment as

       to Counts II, III, and IV of the Lakefront Owners’ complaint together with its

       designation of evidence and a brief in support of its cross-motion and in




               3
                 As previously noted, pursuant to . . . the 2009 BLM Manual [], the title of riparian owners
               below the ordinary high water mark of inland navigable bodies of water is governed by
               State law rather than Federal law. Figure 8-4 (entitled “Inland navigable water claims by
               various States”) on page 189 of the 2009 BLM Manual identifies Indiana as a “Low Water
               Mark” state, thus the northerly line of the lots could extend beyond the edge of water to the
               low water mark.

       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                        Page 10 of 30
       response to the Lakefront Owners’ motion for declaratory summary judgment.

       In its brief, the Town argued that the Lakefront Owners’ motion for declaratory

       summary judgment should be denied because the Town never asserted a claim

       of ownership of the Lakefront Owners’ property and that the 2012 Resolution

       simply acknowledges IDNR’s expression of regulatory authority. The Town

       argued that, “[a]s an attempt to quiet title, which is essentially what the

       [Lakefront Owners] seek, the Complaint fails to name indispensable parties,

       including the state of Indiana” and that “[t]he ‘dispute’ referenced in the

       Resolution is expressly noted as being ‘between private owners and the state of

       Indiana,’ not the Town.” Id. at 439. The Town argued that it should be

       granted summary judgment on Counts II, III, and IV because the 2012

       Resolution does not amount to a taking.


[11]   On September 25, 2013, Alliance filed a response to the Lakefront Owners’

       motion for declaratory summary judgment requesting that the court grant

       summary judgment in favor of the Town and Alliance. Alliance argued that

       there were several fatal flaws in the methods and conclusions of the July 2013

       Report, that thus it should be disregarded, and that, “in any event, the opinion

       and proofs fall short of showing a prima facie claim of ownership.” Id. at 503.

       Alliance argued that the federal survey notes are the closest time to the date

       when the shoreline and boundary were defined and measured as they existed in

       1829 and that the state land boundary in this case is controlled by the survey

       notes in 1829. Alliance further argued that the land below the high water mark

       of Lake Michigan belongs to the State of Indiana under the equal footing


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 11 of 30
       doctrine and is subject to the public trust. Alliance also argued that, regardless

       of where the OHW is located, the public have a perpetual right of access to use

       the beach to the current OHW under the public trust doctrine.


[12]   On October 17, 2013, the court held a hearing on the pending motions. At the

       hearing, counsel for the Town stated that he represented the Town and did not

       represent the public or the State of Indiana, and that “the only other party that

       could own it, other than [the Lakefront Owners], would be the State of

       Indiana.” Transcript at 154-155. The Town’s counsel later said that the State

       was a possible owner of the land, the court asked “[w]hy aren’t they here” and

       “[a]ren’t they a necessary party to determine that issue,” and the Town’s

       counsel replied “[w]ell, that’s my point, Judge.” Id. at 159. At a later point,

       counsel for the Lakefront Owners stated that the State was not present because

       the State agreed to disclaim any claim of ownership in Long Beach. Near the

       end of the hearing, the Town’s counsel stated the Lakefront Owners should

       bring a lawsuit against the State and anyone they believe trespasses, but not the

       Town. Counsel for the Lakefront Owners argued that the occupiers would not

       be on the beach without the Town’s implied consent and that the Town has

       expressly or implicitly adopted a position that the OHW is the dividing line

       between the public and private property in Long Beach.


[13]   On December 26, 2013, the trial court entered summary judgment in favor of

       the Town with respect to Counts I through IV of the Lakefront Owners’

       complaint. The order stated in part:



       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 12 of 30
               [T]he Court finds that the [2012] Resolution passed by the Town is not
               a claim adverse to the [Lakefront Owners’] property rights nor does it
               constitute a taking. The [2012] Resolution is merely a statement of
               policy and does not speak to ownership of the land under discussion.
                                                      *****
               Within the four corners of [the 2012 Resolution], nowhere does the
               Town assert any ownership of any land, nor does the Town take a
               position relative to the ownership of any specific parcels. Given what
               [2012] Resolution [] actually says, it is clear that the [2012] Resolution
               is nothing more than an expression of policy, agreeing with the
               statements made by the IDNR and acknowledging the IDNR’s
               regulatory authority on certain property adjacent to Lake Michigan.
                                                      *****
               This court does not reach the question of ownership over the land
               between the ordinary high water mark and the shore, since the Court
               finds that there has been no taking. In this instance, the Court feels
               that the matter of ownership is a pure question of law. As such, it is
               more properly dealt with by the Indiana Legislature and/or an
               appellate court in a matter where the State of Indiana is a party.
                                                      *****
               In conclusion, this Court finds that there was no taking by the Town of
               Long Beach. The [2012] Resolution passed by the town was a
               statement of policy and was not a claim adverse to any property right
               that the plaintiffs may or may not have in the land between the shore
               and the ordinary high water mark.


       Addendum to Alliance Appellee’s Brief at 5-8; Appellants’ Appendix at 19-20.

       The order further stated, “[t]here being no further cause for delay, the Court

       enters judgment for [Town] in Counts 1-4 of [the Lakefront Owners’]

       Complaint.” Appellants’ Appendix at 20.


[14]   On January 23, 2014, the Lakefront Owners filed a motion for leave to file an

       amended complaint with a proposed amended complaint. In the motion, the


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015         Page 13 of 30
       Lakefront Owners noted that the trial court’s December 26, 2013 order stated in

       part that “[i]n this instance, the Court feels that the matter of ownership is a

       pure question of law” and that “it is more properly dealt with by the Indiana

       Legislature and/or an appellate court in a matter where the State of Indiana is a

       party.” Id. at 822. The Lakefront Owners requested that the court grant them

       leave to add the State of Indiana as a party, “to decide the ‘pure question of

       law’ regarding ownership of the area, ‘between the ordinary high water mark

       and the shore,’ so that any aggrieved party, including the [Lakefront Owners],

       Town, [Alliance] or the newly added State of Indiana could take the trial

       court’s decision to an appellate court.” Id. The Lakefront Owners argued that

       granting them leave to file their amended complaint would not prejudice any

       party. The Lakefront Owners further stated that “[t]he State, through the

       Attorney General’s Office, knows of and has no objection to this motion or

       being added as a party defendant” and “[t]he Town and [Alliance] have each

       argued to add the State as a party.” Id. at 823.


[15]   Also on January 23, 2014, Lakefront Owners filed a motion to correct error.

       The Lakefront Owners argued in part that a genuine issue of material fact exists

       as to whether the 2012 Resolution, as applied and shown by the Town’s

       actions, effect an unconstitutional taking of the Lakefront Owners’ properties

       and that, therefore, the court should reverse summary judgment in the Town’s

       favor regarding Counts II through IV of the Lakefront Owners’ complaint. The

       Lakefront Owners also argued that the court erred in granting the Town

       summary judgment on Count I for declaratory judgment because the court


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 14 of 30
       found the matter of ownership is a pure question of law, that the Town and

       Alliance admit they are claiming a public right in the Lakefront Owners’

       properties, that the count is proper for declaratory relief, and that “the

       ownership question is a dispositive issue” and “[a] declaration regarding the

       boundaries of [Lakefront Owners’] properties and whether their properties are

       burdened by a public trust/public right is necessary in order to determine

       whether the Resolutions effect a taking of [Lakefront Owners’] properties.” Id.

       at 785.


[16]   On February 7, 2014, Alliance filed a response in opposition to the Lakefront

       Owners’ motion to correct error and a motion for partial summary judgment on

       Count V and final summary judgment on Counts I through V. Also on that

       day, Alliance filed a response in opposition to the Lakefront Owners’ motion

       for leave to amend the complaint. Alliance argued that they “do not necessarily

       oppose the addition of the State of Indiana as a defendant in this case, so long as

       [the Lakefront Owners] identify a current or ripening seed of controversy with

       the State over the boundary between State-owned or public trust property and

       [the Lakefront Owners’] property on the shore at Long Beach . . . .” Id. at 886.

       Alliance argued that Counts I through IV had already been decided on

       summary judgment, hearing from the State at this juncture would cause undue

       delay, and the Town and Alliance would be prejudiced by being forced to redo

       the litigation on Counts II through V with the State added as a defendant.


[17]   On February 10, 2014, the Town filed a response and objection to Lakefront

       Owners’ motion for leave to file an amended complaint and a motion for

       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015     Page 15 of 30
       summary judgment on Count V. In opposing the filing of an amended

       complaint, the Town argued that the proposed amendment would be futile to

       the extent that it continues to press the same claims against the Town that the

       court has already considered and dismissed.


[18]   On February 19, 2014, the Lakefront Owners filed a reply in support of its

       motion for leave to file an amended complaint and a reply memorandum

       supporting their motion to correct error. In support of its motion for leave to

       file an amended complaint, the Lakefront Owners maintained:

               There is no delay, prejudice or futility incurred by adding the State as a
               party when all opponents requested the addition and the question of
               ownership and use right, if any, regarding the lots abutting Lake
               Michigan in Long Beach, Indiana, remains.
               All opposing parties crowed that the State is a necessary party to this
               litigation but now that there is a motion for leave to add the
               State/[IDNR] to the litigation, curiously all opposing parties are
               against adding the State/[IDNR].
                                                      *****
               Each opponent claims that the State is no longer necessary because the
               Court correctly decided the issues on summary judgment. However,
               the Court’s Order did not decide the public trust right, if any. . . . A
               decision regarding ownership and the public trust right, if any, will go
               a long way to resolving this case completely or minimally,
               streamlining the issues on appeal.
                                                      *****
               Opponents all claimed a controversy—that they all claimed rights or
               supported the alleged State claim of rights over the Disputed Area.[4]




       4
        The motion defined the Disputed Area as “the land between the ordinary high water mark and the shore.”
       Appellant’s Appendix at 940.

       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                   Page 16 of 30
               Count 1 was filed to declare the [Lakefront Owners’] right, the Town’s
               right and [Alliance’s] right in the Disputed Area.
               Curiously, [Alliance] have flip-flopped and now claim there is no
               controversy. . . . [Alliance] should be judicially estopped from flip-
               flopping.


       Id. at 939-941. The Lakefront Owners argued that amending the complaint to

       add the State is what justice requires. They contend:

               The public trust has not been resolved by summary judgment, there is
               still a justiciable controversy and the Court should grant leave to add
               the State to decide the key issue regarding use rights, if any, over the
               Disputed Area. [Alliance] are not acting in good faith when they flip-
               flop and claim there is not justiciable controversy. They merely want
               the issue undecided to claim another summer of use rights in the
               Disputed Area.


       Id. at 943. On March 6, 2014, the Lakefront Owners filed a response in

       opposition to the Town’s motion for summary judgment regarding Count V.


[19]   The chronological case summary (the “CCS”) does not show that the trial court

       ruled on the Lakefront Owners’ January 23, 2014 motion for leave to file an

       amended complaint or their January 23, 2014 motion to correct error. On April

       1, 2014, the Lakefront Owners filed a notice of appeal from the December 26,

       2013 order. On April 16, 2014, the notice of completion of clerk’s record was

       noted in the CCS. On April 24, 2014, the court issued an order granting the

       Town’s motion for summary judgment on Count V. The Lakefront Owners

       filed a notice of appeal from the April 24, 2014 order, and this court

       consolidated the appeals.


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015         Page 17 of 30
                                                     Discussion

[20]   We find one issue dispositive, which is whether the State of Indiana, or, as

       appropriate, State officials as individuals in their official capacity, should have

       been added or joined as a party to the proceedings below under Ind. Trial Rule

       19 prior to the rulings on the claims of the Lakefront Owners. Ind. Trial Rule

       19(A) provides:

               Persons to be joined if feasible. A person who is subject to service of
               process shall be joined as a party in the action if:
                        (1) in his absence complete relief cannot be accorded among
                        those already parties; or
                        (2) he claims an interest relating to the subject of the action and
                        is so situated that the disposition of the action in his absence
                        may:
                                 (a) as a practical matter impair or impede his ability to
                                 protect that interest, or
                                 (b) leave any of the persons already parties subject to a
                                 substantial risk of incurring double, multiple, or
                                 otherwise inconsistent obligations by reason of his
                                 claimed interest.
               If he has not been so joined, the court shall order that he be made a
               party. If he should join as a plaintiff but refuses to do so, he may be
               made a defendant.


[21]   It is within the trial court’s discretion to determine the indispensability of a

       party. Skyline Roofing & Sheet Metal Co., Inc. v. Ziolkowski Const., Inc., 957 N.E.2d

       176, 189 (Ind. Ct. App. 2011). An action need not be dismissed merely because

       an indispensable party was not named. Id. Where an indispensable party

       subject to process is not named, the correct procedure calls for an order in the


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015              Page 18 of 30
       court’s discretion that he be made a party to the action or that the action should

       continue without him. Id.


[22]   The rule governing joinder of parties does not set forth a rigid or mechanical

       formula for making the determination, but rather is designed to encourage

       courts to apprise themselves of the practical considerations of each individual

       case in view of the policies underlying the rule. Rollins Burdick Hunter of Utah,

       Inc. v. Bd. of Trustees of Ball State Univ., 665 N.E.2d 914, 920 (Ind. Ct. App.

       1996). Therefore, we employ a fact-sensitive, flexible analysis. Id.


[23]   In their December 10, 2012 complaint, the Lakefront Owners alleged that the

       Town’s resolutions resulted in its failure to enforce private property rights on

       the lakefront and specifically sought, under Count I of their complaint,

       declaratory relief pursuant to Ind. Code §§ 34-14-1 regarding the boundaries

       and public rights burdening their property.


[24]   Indiana’s Declaratory Relief Act is found at Ind. Code §§ 34-14-1. Ind. Code §

       34-14-1-2 provides in part that “[a]ny person[5] interested under a deed . . . or

       other writings constituting a contract, or whose rights, status, or other legal

       relations are affected by a statute [or] municipal ordinance . . . may have



       5
         “The word “person” wherever used in this chapter shall be construed to mean any person, partnership,
       limited liability company, joint stock company, unincorporated association, or society, or municipal or other
       corporation of any character whatsoever.” Ind. Code § 34-14-1-13. See also Harp v. Ind. Dep’t of Highways, 585
       N.E.2d 652, 660, 660 n.5 (Ind. Ct. App. 1992) (noting that, “[a]lthough a court does not have subject matter
       jurisdiction to enter a declaratory judgment against the state, an action may be brought against state officials
       as individuals in their official capacity” and also stating in a footnote that “[w]e are unconvinced, however,
       that the distinction between an action against the state and an action against state officers in their official
       capacity is anything more than a legal fiction”).


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                          Page 19 of 30
       determined any question of construction or validity arising under the

       instrument, statute [or] ordinance . . . and obtain a declaration of rights, status,

       or other legal relations thereunder.” Further, Ind. Code § 34-14-1-11 provides

       that, “[w]hen declaratory relief is sought, all persons shall be made parties who

       have or claim any interest that would be affected by the declaration, and no

       declaration shall prejudice the rights of persons not parties to the proceeding,”

       that “[i]n any proceeding in which a statute [or] ordinance . . . is alleged to be

       unconstitutional, the court shall certify this fact to the attorney general, and the

       attorney general shall be permitted to intervene for presentation of evidence, if

       evidence is otherwise admissible in the case, and for arguments on the question

       of constitutionality,” that, “[i]n any proceeding that involves the validity of a

       municipal ordinance . . . , the municipality shall be made a party, and shall be

       entitled to be heard,” and that, “[i]f the statute [or] ordinance . . . is alleged to

       be unconstitutional, the attorney general of the state shall also be served with a

       copy of the proceeding and be entitled to be heard.”


[25]   The Lakefront Owners specifically alleged in their complaint that an actual

       controversy exists regarding the Town’s claimed public rights in the lakefront,

       that the Town’s position was that the lakefront is property held in trust and free

       for all citizens to use, that there is no public right burdening the lakefront, and

       that the claims are particularly well suited for declaratory relief. This request

       for declaratory relief by the Lakefront Owners was based on resolutions passed

       by the Town Council. The 2012 Resolution expressly acknowledged in its

       recitals, and provided as reason for the resolutions, that “disputes have arisen


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015     Page 20 of 30
       relative to the location of boundary lines between private owners and the state of

       Indiana along the shores of Lake Michigan in Long Beach, Indiana.”

       Appellants’ Appendix at 69 (emphasis added). One of the Town’s resolutions

       was to recognize and accept IDNR’s position that the OHW is the line on Lake

       Michigan used to designate where the state’s regulatory jurisdiction lies “and,

       in certain instances, to determine where public ownership or use begins and/or

       ends,” and another of its resolutions directed that “[t]he Long Beach Police

       Department shall only enforce PRIVATE PROPERTY ORDINANCES between

       Lake Shore Drive and Lake Michigan in the following locations,” namely,

       “[t]he entire lengthy [sic] and width of all publicly owned beach accesses above

       the elevation of 581.5 feet [and] [t]he entire length and width of all lots owned

       by the [Town] above the elevation of 581.5 feet.” Id. at 69-70 (emphases

       added).


[26]   The Town filed an answer on March 4, 2013 and alleged as an affirmative

       defense that the Lakefront Owners “failed to join persons needed for just

       adjudication pursuant to Rule 19, Indiana Rules of Court, specifically the State of

       Indiana and/or its Department of Natural Resources.” Id. at 67 (emphasis added).

       After the court granted Alliance’s motion to intervene, Alliance filed an answer

       on June 24, 2013 which alleged in part as an affirmative defense that “the State

       received absolute fee title to the bed of Lake Michigan up to the Ordinary High Water

       Mark at statehood to be held in trust for the public, and the State has not

       relinquished or transferred that title on the disputed Long Beach property” and that




       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 21 of 30
       “[n]o entity except the Indiana Legislature has the power to convey those lands that

       rightfully belong to the State.” Id. at 104 (emphases added).


[27]   The Lakefront Owners later filed a motion for declaratory summary judgment

       on July 23, 2013, seeking “declaratory judgment in Count I” that “[t]heir

       northern property boundary extends at least to the line at which the water of

       Lake Michigan usually stands when free from disturbing causes.” Id. at 108.

       The Town filed a cross-motion for summary judgment arguing that, “[a]s an

       attempt to quiet title, which is essentially what the [Lakefront Owners] seek, the

       Complaint fails to name indispensable parties, including the state of Indiana” and that

       “[t]he ‘dispute’ referenced in the Resolution is expressly noted as being

       ‘between private owners and the state of Indiana,’ not the Town.” Id. at 439

       (emphases added).


[28]   At the October 17, 2013 hearing, counsel for the Town stated that he did not

       represent the public or the State of Indiana and that “the only other party that

       could own it, other than [the Lakefront Owners], would be the State of Indiana.”

       Transcript at 154-155 (emphasis added). The trial court later asked, regarding

       the State of Indiana, “[w]hy aren’t they here” and “[a]ren’t they a necessary

       party to determine that issue,” and the Town’s counsel replied “[w]ell, that’s

       my point, Judge.” Id. at 159. The Town’s counsel stated the Lakefront Owners

       should bring a lawsuit against the State.


[29]   Following these filings and arguments, the trial court entered summary

       judgment on December 26, 2013 in favor of the Town and Alliance on Counts I


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015      Page 22 of 30
       through IV of the Lakefront Owners’ complaint. The court specifically stated

       that it “does not reach the question of ownership over the land between the

       ordinary high water mark and the shore, since the Court finds that there has

       been no taking” and that “[i]n this instance, the Court feels that the matter of

       ownership is a pure question of law” and “[a]s such, it is more properly dealt

       with by the Indiana Legislature and/or an appellate court in a matter where the

       State of Indiana is a party.” Addendum to Alliance Appellee’s Brief at 7-8.

       Thus, the court did not expressly rule on the Lakefront Owners’ declaratory

       relief request.


[30]   In their January 23, 2014 motion for leave to file an amended complaint, the

       Lakefront Owners noted the language of the trial court’s December 26, 2013

       order above that the court did not reach the question of ownership of the beach

       below the OHW. The Lakefront Owners argued that granting their request

       would not prejudice any party and stated that the Attorney General’s Office

       had no objection to being added as a party defendant. The Lakefront Owners

       also noted in their motion to correct error that their claim under Count I is

       proper for declaratory relief and argued that the court erred in granting

       summary judgment in favor of the Town on that count. The trial court did not

       rule on the Lakefront Owners’ motion for leave to file an amended complaint to

       add the State as a party.


[31]   The parties and amici curiae devote the arguments in their respective appellate

       briefs primarily to the issues of ownership and of the rights of the public with

       respect to the area of the beach of Lake Michigan below the OHW. As noted

       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 23 of 30
       above and argued by the parties and amici curiae, resolution of these issues may

       turn to an extent on the provisions of, and the interaction of provisions of, the

       Northwest Ordinance, the 1829 Field Notes, the designated evidence of IDNR

       and NRC materials, the 2009 BLM Manual, and numerous plat and survey

       documents, legislative enactments, and previous appellate opinions. The

       parties point to appellate opinions in the states of Illinois, Michigan, and Ohio

       discussing various aspects of the relative rights of property owners and the

       public in or to such beach property. We recognize the significance of the

       questions of the ownership of the Lake Michigan beach area below the OHW

       and the rights of the public and the extent of those rights which are at issue in

       this action. In their appellees’ brief, Alliance maintains that the State’s absence

       from the case makes a declaration of the boundary between State and private

       title or the boundary of the public trust inappropriate.


[32]   The record demonstrates that the trial court did not determine the ownership

       rights of the Lakefront Owners or public rights to the beach area at issue and

       thus did not rule on the substantive allegations set forth under Count I of the

       Lakefront Owners’ complaint. While the trial court stated that it did not reach

       that determination because it had determined there was no taking, we observe

       that the Town did not establish that the Lakefront Owners are precluded from

       requesting the court to determine their relative property rights notwithstanding

       whether the designated evidence may or may not establish as a matter of law

       that there was not an impermissible taking. Further, it is at least possible that

       whether a taking has occurred or is occurring may turn in part on the nature


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 24 of 30
       and extent of the Lakefront Owners’ interest in the beachfront below the

       OHW.6


[33]   The parties here, including the Lakefront Owners and the Town and Alliance,

       make claims regarding property interests which may as a practical matter

       impair or impede the State’s ability to protect any interest it or the public may

       have in or to the challenged beachfront area. See Ind. Trial Rule 19(A)

       (providing a person shall be joined as a party if he claims an interest relating to

       the subject of the action and is so situated that the disposition of the action in

       his absence may as a practical matter impair or impede his ability to protect that

       interest). In addition, the Lakefront Owners have claimed they own the beach

       area below the OHW, the Town has claimed that the property dispute is

       between the Lakefront Owners and the State of Indiana, and Alliance has

       claimed the beach property at issue here belongs to the State or is subject to the

       rights of the public under the public trust doctrine. See Appellant’s Appendix at

       439 (the Town argued in its cross-motion for summary judgment that, “[a]s an

       attempt to quiet title, which is essentially what the [Lakefront Owners] seek, the

       Complaint fails to name indispensable parties, including the state of Indiana”

       and that “[t]he ‘dispute’ referenced in the Resolution is expressly noted as being

       ‘between private owners and the state of Indiana,’ not the Town”); id. at 510




       6
         Factors which may be considered include the economic impact on the property owner, the extent to which
       the action has interfered with investment-backed expectations, and the character of the government action.
       See State v. Kimco of Evansville, Inc., 902 N.E.2d 206, 211 (Ind. 2009), reh’g denied, cert. denied, 558 U.S. 1147,
       130 S. Ct. 1136 (2010).

       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                              Page 25 of 30
(Alliance argued in its response to the Lakefront Owners’ motion for

declaratory summary judgment that “[t]he land below the high water mark of

Lake Michigan . . . belongs to the State of Indiana . . . and is subject to the

public trust,” that “Indiana cases and law firmly affirm the state’s ownership,”

that the Lakefront Owners “have provided no proofs suggesting that the state

has relinquished its claim to title up to the Lake Michigan boundary established

by the 1829 survey,” and that “any title interest held by [the Lakefront Owners]

below the ordinary high water mark is subject to the rights of the public under

the public trust doctrine”). Alliance alleged that “the State has not relinquished

or transferred” title to the disputed beach area and that those areas “rightfully

belong to the State,” id. at 104, and the Town argued that the “‘dispute’

referenced in the Resolution is expressly noted as being ‘between private owners

and the state of Indiana . . . .” Id. at 439. Further, as argued by the Lakefront

Owners, the Town and Alliance will not be prejudiced by the addition of the

State of Indiana as a party. Also, according to the Lakefront Owners’ motion,

the Attorney General’s Office has no objection to being added as a party

defendant. Based upon the record, we conclude that the trial court should have

joined the State or appropriate State officials as individuals in their official

capacity7 as a party or parties in the proceedings below prior to ruling on the

Lakefront Owners’ claims.




7
  See Harp, 585 N.E.2d at 660 (noting that, “[a]lthough a court does not have subject matter jurisdiction to
enter a declaratory judgment against the state, an action may be brought against state officials as individuals
in their official capacity”).

Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015                          Page 26 of 30
[34]   The Town and Alliance have repeatedly asserted that the Lakefront Owners’

       claims are actually against the State. Although we conclude that the trial court

       should have added the State or State officials as a necessary party or parties to

       these proceedings and remand for it to do so, we note that this does not mean

       the Lakefront Owners have no separate claim against the Town. The trial court

       found that the 2012 Resolution “is merely a statement of policy,” but it is a

       policy for the enforcement of the Town public property ordinances in a certain

       manner with respect to the Disputed Area. Regardless of the State’s position

       concerning ownership of the Disputed Area, the Lakefront Owners are

       objecting to the Town’s ordinances as they affect their property rights which, in

       turn, have implicated the State’s interest in the lakefront land. Moreover, until

       the State is joined as a party and makes its position clear, there are questions

       regarding whether the Town’s policy for enforcement of its ordinances conflicts

       with the State’s position, whether they can conflict, and if so, which body has

       the right to make the determination, among others. In short, the State is a

       necessary party, but the Town remains so as well because the Lakefront Owners

       potentially have separate claims against them.


[35]   Further, as noted above, the trial court did not rule on the substantive

       allegations in Count I of the Lakefront Owners’ complaint and thus did not

       make findings regarding the extent and nature of the private rights of the

       Lakefront Owners, and we find that entry of summary judgment on Count I

       was improper. With respect to the claims under Counts II through IV of the

       complaint, at this juncture we decline to address the parties’ arguments related


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 27 of 30
       to whether the Town’s resolutions and actions amounted to or could amount to

       an unconstitutional taking, until the State of Indiana has had the opportunity to

       take a position as to Count I and the Lakefront Owners’ other claims. As

       noted, it is possible that whether a taking has occurred may turn in part on the

       nature and extent of the Lakefront Owners’ interest in the beachfront area

       below the OHW. These claims may be addressed by the trial court on remand

       and, if appeal is subsequently sought, Indiana’s appellate courts in light of the

       determination of the nature and extent of the relative private and public rights

       to the area of the Lake Michigan beach at issue. We find that the entry of

       summary judgment on Counts II through IV of the complaint was improper at

       this stage in the proceedings.


[36]   In addition, with respect to Count V, Ind. Appellate Rule 8 provides in part that

       this court “acquires jurisdiction on the date the Notice of Completion of Clerk’s

       Record is noted in the Chronological Case Summary.” Following the

       Lakefront Owners’ April 1, 2014 notice of appeal from the trial court’s

       December 26, 2013 order, the notice of completion of clerk’s record was noted

       in the CCS on April 16, 2014. Thus, the trial court did not have the authority

       to enter its April 24, 2014 order with respect to Count V. See Crider v. Crider, 15

       N.E.3d 1042, 1064 (Ind. Ct. App. 2014) (noting that, under Indiana Appellate

       Rule 8, when a party initiates an appeal from a trial court order, this court

       acquires jurisdiction on the date the notice of completion of clerk’s record is

       noted in the CCS and that orders issued by a trial court after this date generally

       are void), trans. denied; see also Jernigan v. State, 894 N.E.2d 1044, 1046 (Ind. Ct.


       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 28 of 30
       App. 2008) (concluding sua sponte that the trial court did not have jurisdiction to

       rule on the motion from which the appellant appealed).


[37]   In sum, we conclude the State of Indiana or appropriate State officials as

       individuals in their official capacity should have been added or joined as a party

       or parties to the proceedings prior to the rulings on the parties’ respective

       summary judgment motions and, accordingly, we reverse the court’s entry of

       summary judgment with respect to Counts I through IV of the Lakefront

       Owners’ complaint. We also find the court was without authority to enter an

       order as to Count V on April 24, 2014. After the State of Indiana is given the

       opportunity to present its position with respect to its ownership interest or the

       interest of the public in or to the disputed beach area, the trial court may rule on

       the parties’ summary judgment motions or proceed to trial with respect to one

       or more of the Lakefront Owners’ claims. We express no opinion regarding the

       allegations under any of the counts of the Lakefront Owners’ complaint or

       arguments set forth in the parties’ summary judgment materials or on appeal by

       the parties or amici curiae with respect to the Lakefront Owners’ claims.


                                                    Conclusion

[38]   For the foregoing reasons, we reverse the court’s December 26, 2013 order

       entering summary judgment with respect to Counts I through IV of the

       Lakefront Owners’ complaint, reverse the court’s April 24, 2014 order with

       respect to Count V, and remand to allow the addition of the State of Indiana or

       appropriate State officials as individuals in their official capacity as a party or

       parties, and for further proceedings consistent with this opinion.
       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 29 of 30
[39]   Reversed and remanded.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 46A05-1404-PL-146 | March 26, 2015   Page 30 of 30
