                                                                        FILED
                                                                   Dec 07 2016, 9:19 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR                                             ATTORNEYS FOR APPELLEES
APPELLANTS/CROSS-APPELLEES                                Gregory F. Zoeller
Michael V. Knight                                         Attorney General of Indiana
Barnes & Thornburg LLP
South Bend, Indiana                                       Andrea E. Rahman
                                                          Deputy Attorney General
Mark L. Phillips                                          Indianapolis, Indiana
Newby, Lewis, Kaminski & Jones, LLP
LaPorte, Indiana
                                                          ATTORNEY FOR APPELLEE/CROSS-
                                                          APPELLANT, ALLIANCE FOR THE
ATTORNEYS FOR AMICUS CURIAE SAVE                          GREAT LAKES AND SAVE THE
OUR SHORELINE                                             DUNES
David L. Powers                                           Jeffrey B. Hyman
Smith, Martin, Powers, & Knier, PC                        Conservation Law Center
Bay City, Michigan                                        Bloomington, Indiana

Keith A. Schofner
Lambert Leser                                             ATTORNEYS FOR
Bay City, Michigan                                        APPELLEES/CROSS-APPELLANTS
                                                          LONG BEACH COMMUNITY
                                                          ALLIANCE, ET AL.
ATTORNEYS FOR AMICI CURIAE RAY
CAHNMAN, ET AL.                                           Kurt R. Earnst
                                                          Braje, Nelson & Janes, LLP
Mark Miller                                               Michigan City, Indiana
Pacific Legal Foundation
Palm Beach Gardens, Florida                               Patricia F. Sharkey
                                                          Environmental Law Counsel, PC
Paul Edgar Harold                                         Chicago, Illinois




Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                 Page 1 of 22
LaDue, Curran & Kuehn, LLC
South Bend, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Don H. Gunderson and Bobbie                               December 7, 2016
J. Gunderson, Co-Trustees of the                          Court of Appeals Case No.
Don H. Gunderson Living Trust                             46A03-1508-PL-1116
Dated November 14, 2006,                                  Appeal from the LaPorte Superior
Appellants/Cross-Appellees/Plaintiffs,                    Court
                                                          The Honorable Richard R.
        v.                                                Stalbrink, Jr., Judge
                                                          Trial Court Cause No.
State of Indiana, Indiana                                 46D02-1404-PL-606
Department of Natural
Resources,
Appellees/Defendants,

Alliance for the Great Lakes and
Save the Dunes,
Appellee/Cross-Appellant/

Intervenor-Defendant,

Long Beach Community
Alliance, Patrick Cannon, John
Wall, Doria Lemay, Michael
Salmon, and Thomas King,
Appellees/Cross-Appellants/

Intervenor-Defendants.




May, Judge.
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016           Page 2 of 22
[1]   “The shores of the Great Lakes may look serene, but they are a battleground.

      Members of the public enjoy using the shores for fishing, boating, birding, or

      simply strolling along and taking in the scenic vistas.” Kenneth K. Kilbert, The

      Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1, 2 (2010).

      “Repeatedly, however, owners of land bordering the Great Lakes (i.e., littoral

      owners), armed with deeds indicating they own the shore to the water’s edge or

      even lower, have tried to stop members of the public from using their property

      above the water’s edge.” Id. (internal footnotes omitted). Today we are called

      on to decide one such case.


[2]   Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H.

      Gunderson Living Trust (collectively, “Gunderson”), sought a declaratory

      judgment that their Lake Michigan property extends to the water’s edge,

      wherever the water’s edge is at any given moment. The State of Indiana and

      the Indiana Department of Natural Resources (“DNR”) (collectively, “State”),

      Alliance for the Great Lakes and Save the Dunes (“Alliance-Dunes”), and Long

      Beach Community Alliance (“LBCA”), 1 argued the State holds in trust for the

      public all land up to the ordinary high water mark (“OHWM”), regardless

      whether that land is covered by water.


[3]   The trial court granted summary judgment for the State and the Intervenors.

      We affirm in part and reverse in part.




      1
          We will refer to Alliance-Dunes and LBCA collectively as “the Intervenors.”


      Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016       Page 3 of 22
                              Facts and Procedural History                              2




[4]   Gunderson owns three lots in Long Beach, Indiana (“Gunderson Property”).

      The trial court found, “The Gunderson’s deed, the plat to which the deed refers,

      and the survey of the plats reference no northern dimension other than that the

      lots are within Section 15.” (Appellants’ App. at 26.) The deed 3 for the

      property incorporates by reference a 1914 plat map of Long Beach, which

      shows the Gunderson Property is located in Section 15 of the township. The

      Gunderson Property is shown on the plat as a series of rectangular boxes with a

      northern boundary. A 1984 survey identifies the northern boundary of the

      Gunderson Property as “lake edge.” (Id. at 127.) A survey from 1829 indicates

      an irregular property line on the northern border of Section 15, beyond which is

      labeled, “Lake Michigan.” (Id. at 585-7.)


[5]   On April 4, 2014, Gunderson brought a motion for a declaratory judgment and

      to quiet title against the State, claiming he owns all land to the water’s edge and

      the public has no rights to any land not covered by water, as that land is his. 4

      On June 2, 2014, Alliance-Dunes filed a motion to intervene, which was




      2
       We heard oral argument at the Indiana Statehouse on September 8, 2016. We commend counsel on the
      quality of their oral advocacy.
      3
       The legal description provided in the deed indicates the Gunderson Property encompasses “Lot 240, 242,
      and 244,” (App. at 110), which correspond to the location of Section 15 on the 1914 plat map.
      4
          Gunderson filed an amended complaint on April 7, 2014.


      Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                  Page 4 of 22
      granted. On July 1, 2014, LBCA filed a motion to intervene; that motion was

      granted on October 20, 2014.


[6]   On October 31, 2014, Gunderson moved for summary judgment.

      Subsequently, the State filed a cross-motion, as did the Intervenors (collectively

      “Defendants”). On April 22, 2015, the trial court held a hearing on all motions.

      On July 24, 2015, the trial court denied Gunderson’s summary judgment

      motion and granted the cross-motions filed by the Defendants. 5 It found and

      concluded:

              Therefore, as to ownership, this Court finds that the Gundersons
              own legal title, jus privatum, in their lots to the northern boundary
              of Section 15. Further, this Court finds that the State holds jus
              publicum, in public trust, the land below the OHWM, as defined
              by 312 Ind. Admin. Code 1-1-26(2). Moreover this Court finds
              that the Gundersons cannot unduly impair the protected rights
              and uses of the public when the titles to the land overlap.


      (Id. at 28.)


[7]   Gunderson filed his notice of appeal on August 10, 2015 (“Gunderson

      Appeal”). On August 11, 2015, Alliance-Dunes filed a combined motion for

      clarification and to correct error. On August 13, 2015, LBCA also filed a

      motion to correct error. On August 20, 2015, the State filed its responses to the

      Intervenors’ respective motions. On October 15, 2015, the trial court scheduled




      5
        The trial court issued an Amended Order on August 3, 2015, as “the first two lines of Paragraph 46 were
      inadvertently cut from page 15 during printing.” (App. at 34.)

      Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                     Page 5 of 22
      a hearing on the Intervenors’ motions for December 18, 2015. On October 23,

      2015, this court granted a joint motion for temporary stay of appellate

      proceedings due to the pending motions from the Intervenors.


[8]   On November 9, 2015, Alliance-Dunes filed “Combined Motions to Take

      Judicial Notice of Facts, to Supplement the Record, and for Leave to Amend

      Alliance-Dunes’ Motion for Clarification and Motion to Correct Error.”

      (“Judicial Notice Motion”) (Alliance-Dunes App. at 25.) On November 23,

      2015, the trial court issued an order granting Alliance-Dunes Judicial Notice

      Motion “unless an objection is filed within 10 days from the date of this Order.”

      (Id. at 90.) On November 30, 2015, Gunderson filed an objection, and on

      December 7, 2015, the State filed its objection to the Alliance-Dunes Judicial

      Notice Motion. The trial court held a hearing on all pending matters on

      December 18, 2015, and denied all pending motions on December 21, 2015.

      Alliance-Dunes appealed the trial court’s denial of its Judicial Notice Motion

      and we consolidated that appeal and the Gunderson Appeal into the current

      case.



                                 Discussion and Decision
[9]   When reviewing summary judgment, we stand in the shoes of the trial court

      and apply the same standards in deciding whether to affirm the ruling. Allen

      Gray Ltd. P’ship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015).

      Thus, on appeal, we must determine whether there is a genuine issue of

      material fact and whether the moving party is entitled to judgment as a matter

      Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 6 of 22
       of law. Id. That standard requires us to construe all factual inferences in favor

       of the nonmoving party, and to resolve all doubts as to the existence of an issue

       of material fact against the moving party. Id.


[10]   A ruling on a motion for summary judgment comes before this court clothed

       with a presumption of validity. Id. Accordingly, the party appealing a

       summary judgment bears the burden of persuading us that the trial court’s

       ruling was improper. Id. Nevertheless, we carefully review a decision on

       summary judgment to ensure that a party was not improperly denied its day in

       court. Id. Where, as here, the trial court makes findings and conclusions in

       support of its entry of summary judgment, we are not bound by such findings

       and conclusions, but they aid our review by providing reasons for the decision.

       Id. We will affirm a summary judgment on any theory or basis found in the

       record. Id.


                                           Public Trust Rights
[11]   Under English law, all navigable waters and the land beneath them were held in

       trust by the sovereign for the benefit of the public. Murphy v. Dep’t of Nat. Res.,

       837 F. Supp. 1217, 1219 (S.D. Fla. 1993), aff’d, 56 F.3d 1389 (11th Cir. 1995).

       This arrangement has become known as the public trust doctrine, id., and was

       adopted by the United States Supreme Court, such that “shores” were public

       trust land:

               For it was expressly enjoined upon [the Duke of York], as a duty
               in the government he was about to establish, to make it, as near
               as might be, agreeable, in their new circumstances, to the laws

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 7 of 22
        and statutes of England; and how could this be done, if in the
        charter itself, this high prerogative trust was severed from the
        regal authority? If the shores, and rivers and bays and arms of the
        sea, and the land under them, instead of being held as a public
        trust for the benefit of the whole community, to be freely used by
        all for navigation and fishery, as well for shell-fish as floating
        fish, had been converted by the charter itself into private
        property, to be parcelled out and sold by the duke, for his own
        individual emolument? There is nothing, we think, in the terms
        of the letters-patent, nor in the purposes for which it was granted,
        that would justify this construction.


Martin v. Waddell’s Lessee, 41 U.S. 367, 413 (1842). This remained true after

independence:


        This right of eminent domain over the shores and the soils under
        the navigable waters, for all municipal purposes, belongs
        exclusively to the states within their respective territorial
        jurisdictions, and they, and they only, have the constitutional
        power to exercise it. To give to the United States the right to
        transfer to a citizen the title to the shores and the soils under the
        navigable waters, would be placing in their hands a weapon
        which might be wielded greatly to the injury of state sovereignty,
        and deprive the states of the power to exercise a numerous and
        important class of police powers.


Pollard v. Hagan, 44 U.S. 212, 230 (1845) (emphasis added). Thus, States that

joined the Union after the original thirteen acquired from the federal

government rights in the lands within the state, “including the lands between

the high and low tide marks and the water that periodically covers it.” Murphy,

837 F. Supp. at 1219.



Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 8 of 22
[12]   When Indiana became a state in 1816 it acquired ownership of the beds of its

       navigable waters. State ex rel. Ind. Dep’t of Conservation v. Kivett, 228 Ind. 623,

       629-30, 95 N.E.2d 145, 148 (1950). That title, sometimes called “equal

       footing” 6 title, is “different in character from that which the state holds in lands

       intended for sale . . . . It is a title held in trust for the people of the state.”

       Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 452 (1892). After equal

       footing lands are passed at statehood, the land is governed by state, and not

       federal, law. See PPL Montana, LLC v. Montana, __ U.S. __, 132 S. Ct. 1215,

       1235 (2012) (states retain residual power to determine the scope of the public

       trust over waters within their borders, while federal law determines riverbed

       title under the equal-footing doctrine). A private landowner cannot impair the

       protected rights of the public. Lake Sand Co. et al. v. State ex rel. Attorney General,

       68 Ind. App. 439, 444, 120 N.E. 714, 716 (1918).


[13]   In 1995, our legislature adopted Ind. Code ch. 14-26-2, which provides the

       Indiana public has a vested right in the preservation, protection, and enjoyment

       of all the public freshwater lakes of Indiana and the use of the public freshwater

       lakes for recreational purposes. Ind. Code § 14-26-2-5. It provides the State has

       full power and control of all of the public freshwater lakes in Indiana, and holds




       6
         In 1842, the United States Supreme Court declared that, for the thirteen original states, the people of each
       state, based on principles of sovereignty, “hold the absolute right to all their navigable waters and the soils
       under them,” subject only to rights surrendered and powers granted by the Constitution to the Federal
       Government. PPL Montana, LLC v. Montana, __ U.S. __, 132 S. Ct. 1215, 1227 (2012). In a series of 19th-
       century cases, the Court “determined that the same principle applied to States later admitted to the Union,
       because the States are coequal sovereigns under the Constitution.” Id.

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                         Page 9 of 22
       and controls all public freshwater lakes in trust for the use of all of the citizens

       of Indiana for recreational purposes. Id. A person owning land bordering a

       public freshwater lake does not have the exclusive right to the use of the waters

       of the lake or any part of the lake. Id. But that section expressly excludes Lake

       Michigan: “This chapter does not apply to . . . Lake Michigan[, l]and under the

       waters of Lake Michigan[, and a]ny part of the land in Indiana that borders on

       Lake Michigan.” 7 Id.


[14]   Gunderson characterizes that chapter as a codification of the public trust

       doctrine and argues there is no public trust doctrine applicable to his land

       because “Indiana expressly excluded Lake Michigan from its public trust

       doctrine.” (Amended Br. of Appellants at 28.) Therefore, Gunderson contends

       he “paid for his property and as such has the right to exclude others.” (Id. at

       30.)


[15]   The trial court found:

               Indiana did not surrender the public trust encumbering Lake
               Michigan’s shores by partially codifying the public trust doctrine
               as it applied to the smaller freshwater lakes in Indiana. That [ ]
               land below the OHWM has not been excluded from Indiana’s
               common law public trust doctrine. Furthermore, this Court



       7
         Gunderson says “Three times crowed the General Assembly; there is no recreational right to any part of the
       land abutting Lake Michigan.” (Amended Br. of Appellants at 28.) Therefore, “Gunderson paid for his
       property and as such has the right to exclude others.” (Id. at 30.) That is not what the General Assembly
       “crowed.” It said only that Ind. Code ch. 14-26-2 does not apply to Lake Michigan. The trial court correctly
       determined the exclusion of Lake Michigan does not mean there are no public trust rights. Rather, it reflects
       there was no intent to change the common law with regard to Lake Michigan. See, e.g., Shively v. Bowlby, 152
       U.S. 1, 41 (1894) (when there was no administratively-set OHWM, there existed a common-law OHWM).

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                    Page 10 of 22
               notes that Indiana has the least amount of shoreline along Lake
               Michigan. Moreover, this Court finds the idea that Indiana, with
               such a limited amount of shoreline, would restrict and in effect
               deny its citizens’ [sic] access to such an amazing resource. [sic]
               Granting near exclusive rights to a vast portion of the shoreline
               to a select few homeowners, to be a far stretch of reason and
               common sense. [sic]


       (Appellants’ App. at 20.)


[16]   We decline to hold the exclusion of Lake Michigan from that statute represents

       the legislature’s statement there are no public trust rights in the shore of Lake

       Michigan. Gunderson relies primarily on Bainbridge v. Sherlock, 29 Ind. 364, 367

       (1868), in which our Indiana Supreme Court held:

               The Ohio [R]iver is a great navigable highway between states and
               the public have all the rights that by law appertain to public rivers
               as against the riparian owner. But there is not “shore,” in the
               legal sense of that term; that is, a margin between high and low
               tide -- the title to which is common. The banks belong to the
               riparian owner, and he owns an absolute fee down to low water
               mark.


       However, it seems, based on the language specifically applying the holding

       regarding the riparian rights to the “navigable highway between states . . .

       [where there] is not ‘shore,’” id., the holding in Bainbridge applied to rivers, not

       lakes as we have here. Compare Kivett, 95 N.E.2d 145 (regarding the use of

       resources protected by public trust on a river), and Lake Sand, 120 N.E.2d 714

       (regarding the use of resources protected by public trust on a lake); and compare



       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 11 of 22
       Ind. Code art. 14-29 (regulating navigable rivers, streams, and waterways) with

       Ind. Code art. 14-26 (regulating lakes and reservoirs).


[17]   We do not believe the exclusion of Lake Michigan from Indiana Code ch. 14-

       26-2 demonstrates legislative intent that there be no public trust rights to the

       shore. We presume the legislature is aware of the common law and intends to

       make no change therein beyond its declaration either by express terms or

       unmistakable implication. Clark v. Clark, 971 N.E.2d 58, 62 (Ind. 2012). There

       was no such express declaration here, nor do we characterize the statutory

       language as leaving an “unmistakable implication.” Thus, the rights to the

       shore of Lake Michigan are controlled by the common law public trust

       doctrine.


                                   Scope of Public Trust Rights
[18]   As we have concluded public trust rights exist, we must now consider their

       scope. Regarding the nature of the public trust rights relative to Lake Michigan,

       the trial court found:


               The Gundersons have provided no evidence and no persuasive
               argument for finding that the recreational activities, such as
               swimming and walking on the beach, should not also be
               permissible public uses protected by the public trust doctrine.
               This Court notes that several other states, including some of our
               sister Great-Lake States, have recognized the public trust’s
               protection for recreational enjoyment of the beach.


       (Appellants’ App. at 20.)



       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 12 of 22
[19]   The states retain residual power to determine the scope of the public trust over

       waters within their borders. PPL Montana, __ U.S. at __, 132 S. Ct. at 1235.

       Some Great Lakes states have determined the public trust rights include

       recreational uses such as swimming, walking along the shore, and preservation

       of scenic beauty. E.g., People ex rel. Scott v. Chicago Park Dist., 360 N.E.2d 773,

       780 (Ill. 1976) (public trust doctrine, like all common law principles, should not

       be considered fixed or static, but should be molded and extended to meet

       changing conditions and needs of the public it was created to benefit); R.W.

       Docks & Slips v. State, 628 N.W.2d 781, 787-88 (Wis. 2001) (public trust doctrine

       originally existed to protect commercial navigation, but has been expansively

       interpreted to safeguard the public’s use of navigable waters for purely

       recreational purposes such as boating, swimming, fishing, hunting, recreation,

       and to preserve scenic beauty), cert. denied sub nom. R.W. Docks & Slips v.

       Wisconsin, 534 U.S. 1041 (2001)). The scope of public trust rights in Indiana is

       an issue of first impression. 8


[20]   Granting lakeshore owners the right to exclude the public from land between

       the low and high water marks would be inconsistent with the public trust

       doctrine because, under that doctrine, a state holds the title to the beds of

       navigable lakes and streams below the natural high-water mark for the use and




       8
         In United States v. Carstens, 982 F. Supp. 2d 874, 878 (N.D. Ind. 2013), the district court said: “The land
       between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by
       the State of Indiana.” It cited Ill. Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892), and Lake Sand, 68 Ind.
       App. 439, 120 N.E. 714 (1918), but neither of those decisions directly supports the Carstens language about
       the “ordinary high water mark.”

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                            Page 13 of 22
       benefit of the whole people. In re Sanders Beach, 147 P.3d 75, 79 (Idaho 2006),

       reh’g denied. In Sanders Beach, lakefront property owners sought a ruling that

       their littoral rights gave them authority to exclude the public from that portion

       of the abutting lakebed not covered by water. The Court determined that

       creating the littoral right they wanted “would give them the exclusive right to

       occupy this portion of state land, even though the state holds such land in trust”

       for the public:

                Such littoral right would be contrary to the central substantive
                thought in public trust litigation, which we have stated is as
                follows: [w]hen a state holds a resource which is available for the
                free use of the general public, a court will look with considerable
                skepticism upon any governmental conduct which is calculated
                either to relocate that resource to more restricted uses or to
                subject public uses to the self-interest of private parties.


       Id. at 86 (quoting J. Sax, The Public Trust Doctrine in Natural Resource Law:

       Effective Judicial Intervention, 68 Mich. L. Rev. 473, 490 (1970)). The Court

       therefore declined to create the littoral right requested by the lakeshore owners.

       “Their littoral rights do not include the right to exclude the public from that

       portion of the exposed lake bed lying below the OHWM.” Id.


[21]   Gunderson argues that land is either submerged or it is not, and asserts he owns

       whatever is not under water at any given moment. 9 We find persuasive the



       9
         Gunderson also relies on Bainbridge as limiting the public right in navigable waters, asserting the public right
       is “for passage, navigation, and commerce . . . . No more, no less.” (Amended Br. of Appellants at 26.)
       However, as noted supra, Bainbridge is inapplicable here, as its holding governs riparian rights along a river for
       which there was no “shore,” not lake-based riparian rights. Compare Kivett, 95 N.E.2d 145 (regarding the use

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                         Page 14 of 22
       Michigan Supreme Court’s analysis in Glass v. Goeckel, 703 N.W.2d 58 (Mich.

       2005), reh’g denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174 (2006). It

       addressed a dispute similar to that before us – i.e., whether the public trust land

       extends up to the ordinary high water mark or whether, as Gunderson argues, it

       applies only to land that is actually under water at any particular moment.


[22]   The Glass Court addressed “the established distinction” in public trust

       jurisprudence between public rights (jus publicum) and private title (jus privatum).

       Id. at 69. It noted:


                Cases that seem to suggest, at first blush, that the public trust
                ends at the low water mark actually considered the boundary of
                the littoral owner’s private property (jus privatum) rather than the
                boundary of the public trust (jus publicum). Because the public
                trust doctrine preserves public rights separate from a landowner’s
                fee title, the boundary of the public trust need not equate with the
                boundary of a landowner’s littoral title. Rather, a landowner’s
                littoral title might extend past the boundary of the public trust.
                Our case law nowhere suggests that private title necessarily ends
                where public rights begin. To the contrary, the distinction we
                have drawn between private title and public rights demonstrates
                that the jus privatum and the jus publicum may overlap.


       Id. at 69-70. See also State v. Korrer, 148 N.W. 617, 623 (Minn. 1914) (even if a

       riparian owner holds title to the ordinary low water mark, his title is absolute




       of resources protected by public trust on a river) with Lake Sand, 120 N.E.2d 714 (regarding the use of
       resources protected by public trust on a lake); and compare Ind. Code art. 14-29 (regulating navigable rivers,
       streams, and waterways) with Ind. Code art. 14-26 (regulating lakes and reservoirs).



       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                        Page 15 of 22
       only to the ordinary high water mark; the intervening shore space between high

       and low water mark remains subject to the rights of the public); Shaffer v.

       Baylor’s Lake Ass’n, Inc., 141 A.2d 583, 585 (Pa. 1958) (subjecting private title

       held to low water mark to public rights up to high water mark); Bess v. Humboldt

       Co., 5 Cal. Rptr. 2d 399, 401 (Cal. Ct. App. 1992) (noting that it is “well

       settled” that riparian title to the low water mark remained subject to the public

       trust between high and low water marks).


[23]   Establishing property rights based on the OHWM attempts to account for the

       fact that water levels in the Great Lakes fluctuate. Glass, 703 N.W.2d at 71.

       This fluctuation results in temporary exposure of land that may then remain

       exposed above where water currently lies. Id. This land, although not

       immediately and presently submerged, falls within the ambit of the public trust

       because the lake has not permanently receded from that point and may yet

       again exert its influence up to that point. Id. The Glass Court noted “the

       precise location of the ordinary high water mark at any given site on the shores

       of our Great Lakes remains a question of fact[.]” Id. at 73.


[24]   As to the scope of the public trust rights, the Glass Court held that “walking

       along the shore, subject to regulation (as is any exercise of public rights in the

       public trust) falls within the scope of the public trust.” Id. As trustee, the state

       must preserve and protect specific public rights below the ordinary high water

       mark and may permit only those private uses that do not interfere with these

       traditional notions of the public trust. Id. Yet its status as trustee does not

       permit the state to secure to itself property rights held by littoral owners. Id.
       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 16 of 22
[25]   The Glass Court determined


               walking along the lakeshore is inherent in the exercise of
               traditionally protected public rights. Our courts have
               traditionally articulated rights protected by the public trust
               doctrine as fishing, hunting, and navigation for commerce or
               pleasure. In order to engage in these activities specifically
               protected by the public trust doctrine, the public must have a
               right of passage over land below the ordinary high water mark.
               Indeed, other courts have recognized a “right of passage” as
               protected with their public trust. We can protect traditional
               public rights under our public trust doctrine only by
               simultaneously safeguarding activities inherent in the exercise of
               those rights. Walking the lakeshore below the ordinary high
               water mark is just such an activity, because gaining access to the
               Great Lakes to hunt, fish, or boat required walking to reach the
               water.


       Id. at 73-75 (citations omitted). The Glass Court concluded with two caveats:


               By no means does our public trust doctrine permit every use of
               the trust lands and waters. Rather, this doctrine protects only
               limited public rights, and it does not create an unlimited public
               right to access private land below the ordinary high water mark.
               The public trust doctrine cannot serve to justify trespass on
               private property. Finally, any exercise of these traditional public
               rights remains subject to criminal or civil regulation by the
               Legislature.


       Id. at 75 (citation omitted). 10




       10
          We acknowledge some other Great Lakes courts have been more protective of private property rights. See
       e.g., State ex rel. Merrill v. Ohio Dep’t of Nat. Res., 955 N.E.2d 935 (Ohio 2011), where Lake Erie property

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                    Page 17 of 22
[26]   Following the holding and reasoning in Glass, we conclude Gunderson’s private

       rights are able to co-exist with those rights of the public trust. Therefore, the

       land at issue below the OHWM is open to limited public use, such as gaining

       access to the public waterway or walking along the beach, as described in Glass.


                                        Location of the OHWM
[27]   The trial court determined the State holds in public trust “the land below the

       OHWM, as defined by 312 Ind. Admin. Code § 1-1-26(2) [sic],” and that

       Gunderson “cannot unduly impair the protected rights and uses of the public

       when the titles to the land overlap.” (Appellants’ App. at 28.) Gunderson

       argues at length that the State cannot, by regulation, take property or determine

       boundaries because its statutory authority does not permit it. The State argues

       it has authority to determine the scope of the public trust.


[28]   In Shively v. Bowlby, 152 U.S. 1, 41 (1894), the United States Supreme Court

       decided when there was no administratively-set OHWM, there existed a

       common-law OHWM. In 1995, the DNR enacted 312 IAC 1-1-26(2), which

       reads: “‘Ordinary high watermark’ means . . . the shore of Lake Michigan at




       owners sought a declaration that they held title to the land between the ordinary high-water mark and the
       actual legal boundary of their properties as defined by their deeds, and that the public trust did not include
       nonsubmerged lands. The Ohio Supreme Court determined the territory of Lake Erie held in trust by the
       state for the people extends to the “natural shoreline,” which is “the line at which the water usually stands
       when free from disturbing causes.” Id. at 950. “This court has a history of protecting property rights, and
       our decision today continues that long-standing precedent.” Id. at 949. However, Merrill is distinguishable
       because the holding relied upon long-established Ohio precedent and Ohio state law which specifically stated
       the location of the property line in relation to Lake Erie, neither of which we have in this case.

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                      Page 18 of 22
       five hundred eighty-one and five-tenths (581.5) feet I.G.L.D., 11 1985 (five

       hundred eighty-two and two hundred fifty-two thousandths (582.252) feet

       N.G.V.D., 12 1929).” (footnotes added)


[29]   Alliance-Dunes argues the DNR is without authority to set the OHWM as it

       did in 312 IAC 1-1-26(2). Regulations set forth by administrative boards “must

       be reasonable and reasonably adapted to carry out the purpose or object for

       which these boards were created. Potts v. Review Bd. of Indiana Emp’t Sec. Div.,

       438 N.E.2d 1012, 1015 (Ind. Ct. App. 1982). “If the rules are in conflict with

       the state’s organic law . . . they are invalid.” Id. We hold 312 IAC 1-1-26(2) is

       in conflict with well-established case law regarding the state’s ability to regulate

       the shores of Lake Michigan.


[30]   In Lake Sand we held: “The state in its sovereign capacity is without power to

       convey or curtail the right of its people in the bed of Lake Michigan.” 120 N.E.

       at 716. As the OHWM prior to 1995 was the common law OHWM as held in

       Shively, 152 U.S. at 41, the DNR’s staking the OHWM at the measurements set

       forth in 312 IAC 1-1-26(2) most certainly conveyed or curtailed the rights of the

       people of Indiana in Lake Michigan. Therefore, that portion of the Indiana




       11
        “International Great Lakes Datum (IGLD) is a reference system by which Great Lakes water levels are
       measured.” Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. at 58 n.43.
       12
        NGVD stands for National Geodetic Vertical Datum. http://www.acronymfinder.com/National-
       Geodetic-Vertical-Datum-(NGVD).html (last visited July 27, 2016).

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                     Page 19 of 22
       Administrative Code is invalid, and the OHWM remains that defined by

       common-law. 13


                                 Gunderson’s Northern Boundary
[31]   Gunderson asserts the deed establishes Lake Michigan as the northern

       boundary of the Gunderson Property. The trial court found the Gunderson

       deed, 14 the plat to which it refers, and a survey


               reference no northern dimension other than that the lots are
               within Section 15. As a matter of interpretation, and common
               sense, if a lot is carved from within a section, the boundaries of
               that lot can be no greater than those of the section from which it
               was carved. Therefore, this Court finds that the Gundersons’



       13
         The factors used to define OHWM under the common law are also found in 312 IAC 1-1-26(1). Compare
       Glass, 703 N.W.2d at 72:
               [The ordinary high water mark is] the point on the bank or shore up to which the presence and
               action of the water is so continuous as to leave a distinct mark either by erosion, destruction of
               terrestrial vegetation, or other easily recognized characteristic. And where the bank or shore at any
               particular place is of such a character that is impossible or difficult to ascertain where the point of
               ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same
               stream or lake to determine whether a given stage of water is above or below ordinary high-water
               mark.
       (quoting Diana Shooting Club v. Hustin, 156 Wis. 261, 272, 14 N.W. 816 (1914)) with 312 IAC 1-1-26(1):
               “Ordinary high watermark” means the following:
               (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.
       14
         The deed Gunderson designated is the deed from Don and Bobbie Gunderson to the “Don H. Gunderson
       Living Trust,” (App. at 109), not the deed originally conveying the land to the Gundersons.

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                        Page 20 of 22
               deed conveyed no title north of Section 15’s northern boundary.
               However, this Court notes that it is without evidence showing
               where the northern boundary of Section 15 currently lies in
               relation to the Gundersons’ lots and the OHWM.


       (Id. at 26.) We acknowledge evidence that notes an 1829 survey says the lots

       run “to Lake Michigan and set post. 15” (Appellants’ App. at 589) (footnote

       added). A 1984 survey indicates the northern boundary of the lots in the plat is

       “LAKE EDGE.” (Id. at 127.) While we agree with the logic, we diverge

       slightly from the trial court’s finding based on the evidence in the record before

       us.


[32]   The designated evidence indicates the boundary of Section 15 is Lake

       Michigan. We held above, based on Glass, Gunderson’s property rights overlap

       with those of the public trust. Therefore, the northern boundary of

       Gunderson’s property is the ordinary low water mark, subject to the public’s

       rights under the public trust doctrine up to the OHWM. See Glass, 703 N.E.2d

       at 69-70 (regarding overlap of jus privatum and jus publicum); see also Korrer,

       148 N.E. at 623 (intervening shore space between ordinary low and ordinary

       high water marks are property of land owner, subject to the public’s rights

       thereto); Shaffer, 141 A.2d at 585 (private title subject to public rights between

       ordinary low and ordinary high water marks); and Bess, 5 Cal. Rptr. 2d at 401




       15
         The meaning of “set post” is unclear from the record but, based on the context, it would seem the term
       indicates the demarcation of the property line. Based on the 1984 survey, no physical post exists.

       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016                    Page 21 of 22
       (private title subject to public rights between ordinary low and ordinary high

       water marks).



                                                Conclusion
[33]   We affirm the trial court’s findings regarding the nature and scope of the public

       trust as it relates to Lake Michigan. However, we reverse the trial court’s

       determination of the OHWM’s location.


[34]   Gunderson owns legal title up to the northern boundary of Section 15, and the

       State holds the land below the OHWM as defined at common law. The

       designated evidence consistently indicates the northern boundary of Section 15

       is Lake Michigan. Therefore, we reverse the trial court’s finding northern

       boundary of Section 15 is unknown, and hold the northern boundary of Section

       15 is the ordinary low water mark, subject to the public’s rights as part of the

       public trust.


[35]   Affirmed in part and reversed in part.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016   Page 22 of 22
