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Court Limits DNR’s Rule on Waterfront Rights

The Indiana Court of Appeals recently held that an Indiana landowner’s attempt to exclude the public from access to waterfront property on Lake Michigan was contrary to Indiana law. Specifically, this homeowner sought a declaratory judgment to confirm his alleged right to exclude the public. In addition to ruling that the public has access to the lakeshore, the COA also ruled that the public boundary limits on Lake Michigan are to be determined by historic Indiana common law, not by the Indiana Department of Natural Resources’ (DNR) administrative rules. See Don H. Gunderson, et al. v. State of Indiana, et al., 46-A03-1508-PL-1116.

Indiana’s Attorney General, as Defendant, argued that the land between Lake Michigan’s ordinary high water mark and ordinary low water mark was held in public-trust for the citizens of Indiana pursuant to the state’s long-established ownership of the state’s navigable waters. Charitable groups also intervened in this case in favor of public access, likewise arguing that the lakeshore is held in public-trust. The interveners argued that the well-established Potts case meant the DNR lacked the authority to set Lake Michigan’s high-water mark under 312 I.A.C. 1-1-26(2). The Potts case found that if the administrative rules promulgated by the DNR are in conflict with Indiana’s historic common law created by the courts, the DNR’s administrative rules are invalid.

The landowner argued that the Potts case was effectively legislatively overruled by I.C. 14-26-2-1 et seq., which establishes Indiana’s public-trust rights regarding freshwater lakes. Said statute excluded Lake Michigan. The landowner further asserted that this Lake Michigan exclusion meant that the Indiana General Assembly intended for Lake Michigan to be excluded from the Indiana’s freshwater lake preservation laws and therefore not held in public-trust. The Court rejected this argument. The Court found the exclusion of Lake Michigan in Ind. Code §14-26-2-1 instead shows that there was no intent by the Indiana General Assembly to change Indiana’s historic common law relating to Lake Michigan. The Court concluded that the landowner’s private rights are able to co-exist with limited public use and agreed with the interveners, holding that the DNR’s administrative rule, 312 I.A.C. 1-1-26(2), is invalid because it is in conflict with Potts and Indiana’s historic common law pertaining to Lake Michigan. Conversely, this Court appeared to imply that a statute legislatively enacted by the General Assembly could effectively amend or overrule the Potts common law doctrine cited, however, such would require more precise drafting than the statutes in question.

This case shows the importance of landowners adjacent to lakes, rivers or other bodies of water knowing their legal rights. To learn more about your property rights or for more information about any related matter, please contact Mike Schopmeyer at mschopmeyer@KDDK.com or (812) 423-3183, or communicate with any member of the KDDK real estate law team.

About the Author

Mike Schopmeyer

Mike Schopmeyer

Mike Schopmeyer, a Partner at Kahn, Dees, Donovan & Kahn, LLP (KDDK), in Evansville, Indiana, has more than 30 years’ experience closing and resolving business, environmental, construction, real estate, and intellectual property deals and disputes. He has extensive experience in economic development law as well as government, school and municipal law. Honed from service as a private practitioner, government attorney, arbitrator, and civic leader, Mike’s financial acumen empowers clients to more swiftly reach durable solutions.

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